^t^^ ^^i/t^tt THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW CASES LAW OF AGENCY SELECTED AND ARRANGED GEORGE L. REINHARD, LL. D. Late Dean of Law Faculty, Indiana University INDIANAPOLIS THE BOBBS-MERRILL COMPANY PUBLISHERS Copyright igii By the BOBBS-MERRILL COMPANY r 1911 PUBLISHER'S NOTE These cases were selected and prepared in part for publication by Judge Reinhard with especial view for use in his classes in the In- diana University Law School. Before the editorial work was completed Judge Reinhard's death occurred, and the task of completing the manuscript and its final re- vision for the printer devolved upon others. The publishers, in ac- cepting this responsibility, have endeavored to carry out the intent of the editor that the selection should be representative and well adapted for students' use. For the two years past the cases have been carefully and critically gone over, annotated, and tested by class-room use. This selection is now presented as a memorial to the late Dearr Reinhard, whose high qualifications as a jurist, administrator, author and teacher were so generally recognized during his lifetime. Ill i^in.'^.i TABLE OF CONTENTS CHAPTER I. NATURE AND KIND OF AGENCY. PAGE. Definition of agent 1 Distinction between agent and servant 5 Special, general and universal agents 11 CHAPTER n. COMPETENCY OF PARTIES. Who can be principal 15 Who can be agent ■^^ CHAPTER HI. SUBJECT-MATTER OF AGENCY. What acts can be done by an agent 53 Contract of appointment for illegal purpose 61 CHAPTER IV. CREATION OF AGENCY. Authority to execute sealed instruments 75 Express authority 88 Implied authority "5 Acceptance by agent 1^1 Estoppel 102 V VI TABLE OF CONTENTS. CHAPTER V. EXTENT, CONSTRUCTION AND EXECUTION OF AUTHORITY. PAGE. Special, general and universal agents 107 Rules of construction 1 14 Execution of authority 124 (a) Sealed instruments 124 (b) Negotiable instruments 136 (c) Simple contracts 157 CHAPTER VI. DELEGATION OF AUTHORITY. What authority cannot be delegated 164 What authority can be delegated 172 Power to delegate implied from circumstances 175 CHAPTER VII. LIABILITY OF PRINCIPAL TO THIRD PERSONS. Contracts 181 Torts 235 (a) Fraud and deceit 235 (b) Personal injury 258 Notice to and knowledge of agent 293 Declarations and admissions of agent 317 CHAPTER VIII. RATIFICATION. What acts can be ratified 323 Requisites of ratification 340 Effects of ratification Z66 CHAPTER IX. LIABILITY OF AGENT TO THIRD PARTY. Contracts 383 (a) Authorized contracts for disclosed principal 383 (b) Unauthorized contracts 392 Torts 415 TABLE OF CONTENTS. vii CHAPTER X. UNDISCLOSED PRINCIPAL. PAGE. Liability of third party to principal 438 Liability of principal to third party 462 Liability of third party to agent 493 Liability of agent to third party 511 CHAPTER XL DUTIES AND LIABILITIES OF PRINCIPAL TO AGENT. Duty to compensate agent 526 (a) In general 526 (b) When agency is terminated before expiration of specified term 535 Duty to reimburse agent 558 Employer's liability 563 (a) Fellow-servant rule 563 (b) Vice-principal and superior servant doctrines 615 (c) Duty of the employer to provide safe premises and suitable appliances, also assumption of risk by employe 633 CHAPTER Xn. DUTIES AND LIABILITIES OF AGENT TO PRINCIPAL. Agent's duty to obey instructions 673 Agent's duty to observe good faith 688 Agent's duty to use care and skill 710 Agent's duty to account 723 Duty of gratuitous agent 728 CHAPTER XHL TERMIN.\TI0N OF AGENCY. By the terms of the agreement 739 By revocation of authority 744 By operation of law 760 Irrevocable agencies 770 TABLE OF CASES Ahern v. Baker Amans v. Campbell Anderton v. Shoup Appleton Bank v. McGilvray Argersinger v. MacNaughton Atwood V. Munnings B Bagley v. Findlay Baird v. Pettit Baker v. Kansas City &c. R. Co. Baldwin v. Bank Baldwin Bros. v. Potter Bank v. New York &c. R. Co. Barrell v. Newby Bartlett v. Raymond Baulec v. New York &c. R. Co. Baxter v. Sherman Beardslee v. Richardson Birkett v. Postal Tel. Co. Birmingham Banking Co., ex parte Book V. Jones Bradstreet v. Baker Briggs V. Partridge Brooks V. Shaw Brookshire v. Brookshire Brown v. Parker Brown Paper Co. v. Dean Bryan v. Jackson Buckland v. Conway Burns v. Lynde Carriger v. Whittinglon Carter v. Southern R. Co. {References are to Pages.^ 750 Cassidy v. McKenzie 519 136 175 513 114 99 594 216 444 723 255 490 511 608 457 732 235 53 517 124 462 476 749 467 420 97 177 75 764 494 761 Chezum v. Kreighbaum 91 Citizens' Loan &c. Assn. v. Fried- ley 721 Clippinger v. Hepbaugh 61 Cobb V. Knapp 522 Cochell V. Reynolds 166 Colburn v. Phillips 499 V. Woodworth 537 Collen V. Wright 407 Combs V. Scott 345 Commercial Bank v. Norton 173 V. Warren 366 Conkey v. Bond 689 Copeland v. Mercantile Ins. Co. 751 Costigan v. Mohawk &c. R. Co. 539 Cox V. Haun 60 Craighead v. Peterson 122 Croft V. Alison 263 Crow V. Carter 56 Crowder v. Reed 347 Croy V. Busenbark 85 D Dana v. Blackburn 577 Daniels v. Union Pacific R. Co. 572 Davis V. Windsor Sav. Bank 760 V. Lane 766 Dawson v. Cotton 127 Daylight Burner Co. v. Odlin 224 Dean v. Brock 423 Dempsey v. Chambers ^37 Dexter v. Hall 27 Diefenback v. Stark 545 Dobbin v. Richmond &c. R. Co 620 Dodge V. Hopkins 376 IX TABLE OF CASES. {References are to Pages.] Dorchester Bank v. New England Bank 178 Dusenbury v. Ellis 393 Dwyer v. American Exp. Co. 630 Early V. Wilkinson 139 Eaton V. European &c. R. Co. 285 Eberts v. Selover 364 Elkhart County Lodge v. Cray 56 Elkins V. Boston &c. R. Co. 452 Evrit V. Bancroft 503 Fairfield Sav. Bank v. Chase 300 Fairley v. Hastings 317 Farwell v. Boston &c. R. Corp. 563 Fellows V. Hartford &c. Steam- boat Co. 757 Feltus V. Swan 421 Fifield V. Northern Railroad 633 First Nat. Bank v. Christopher 307 V. Fourth Nat. Bank 710 V. Free 101 V. Graham 526 Follette V. Mutual Accident Assn. 293 Fonda v. Van Home Ford V. Williams Forrest v. McCarthy Freese v. Crary Friedlander v. Te.xas &c. R. Co. Gardner v. Allen Garretzen v. Ducnckel Gilbert v. How Newbrand Metcalf V. Daily Horton Golden v. Gouldy V. Governor Graves v. Grocnburg v. Palmieri 15 449 521 399 248 455 269 120 284 118 41 95 489 Grecnleaf v. Moody Gregory v. Piper Gulick V. Grover Gundlach v. Fischer H 681 258 109 739 Haas v. Damon 726 Hale v. Woods 130 Hall v. Harper 359 Hammond v. Hussey 728 Hardin v. Alexandria Ins. Co. 103 Harper v. Indianapolis &c. R. Co 596 Harralson v. Stein 169 Hartley & Minor's Appeal 775 Haskell v. Starbird 237 Hatzfield v. Gulden 71 Hawkins v. McGroarty 343 Hayden v. Alton Nat. Bank 508 Hazeltine v. Miller 187 Hegenmyer v. Marks 688 Heinemann v. Heard 716 Henry v. Heeb 332 Higgins V. Senior 160 Hinds V. Henry 527 Hitchcock V. Buchanan 148 Hoffman v. New York &c. R. Co. 275 Holden v. Rutland R. Co. 506 Holmes v. Grover 109 Holt V. Green 50 Houseman v. Girard &c. Loan Assn. 299 Hunt V. Crane 535 V. Rousmanier 770 Huntington v. Knox 450 Hyatt V. Clark 354 Indianapolis &c. R. Co. v. Watson 653 Indianapolis &c. Transit Co. v. Foreman 582 Isham V. Post 730 Island Coal Co. v. Greenwood 645 TABLE OF CASES. XI {References are to Pages.] Jenkins v. Flinn Jenkins Bros. Shoe Co. v. Ren- frew & Co. Jenne v. Sutton Joel V. Morison Johnson v. New York &c. R. Co. Jones V. Woods K Kansas Pac. R. Co. v. Salmon Kaye v. Brett Kayton v. Barnett Kelly V. Thuey Kennedy v. McKay Kenton Ins. Co. v. McClellan Killingsworth v. Portland Trust Co. Kingan v. Silvers Kitchen v. Cape Girardeau &c. R. Co. Knapp V. Alvord Knox V. Pioneer Coal Co. Kolb V. J. E. Bennett Land Co. Kornemann v. Monaghan Kroeger v. Pitcairn Laverty v. Snethen Law V. Stokes LeRoy v. Beard Lewis V. Atlas Mut. &c. Ins. Co. Lister v. Allen Lloyd V. Hanes London &c. Bank, In re Lord V. Hall Loudon Sav. Fund Soc. v. Ha- gerstown Sav. Bank Lough V. John Davis Lucas V. Bank Lumley v. Corbctt 44 304 418 262 675 531 590 202 469 471 241 22 46 5 34 776 644 746 206 401 677 221 183 755 231 650 53 185 107 428 38 461 Lynn v. Burgoyne Lyon V. Kent 164 39 M McDowell V. Homer Ramsdell Transp. Co. 265 McEntyre v. Levi Cotton Mills 322 McKinnon v. Vollmar 172 McNevins v. Lowe 736 Maitland v. Martin 561 Manufacturing Co. v. Morrissey 665 Maple V. Railroad Co. 487 r^Iatteson v. Rice 243 Maury v. Ranger 388 Merchants' Nat. Bank v. Lovitt 310 Minnesota &c. Oil Co. v. Mon- tague 685 Mitchell V. Hazen 129 Moore v. Appleton 558 V. Stone 741 V. Wabash &c. R. Co. 615 Mott V. Smith 21 N National Life Ins. Co. v. Allen 442 V. Minch 313 Negley v. Lindsay ^23 Newport v. Smith 415 Norris v. Tayloe 695 Noyes v. Loring 396 O Oakland City &c. Industrial Soc. V. Bingham 279 O'Brien v. American Dredging Co. 624 Offutt V. Ayres 158 Ogden V. Raymond 383 Pacific Guano Co. v. Hooleman 441 Patterson v. Lippincott 412 TABLE OF CASES. {References a Peabody v. Hoard 88 Pennsylvania &c. R. Co. v. Leslie 639 V. Mason 639 Phillips V. Howell 744 Pickering v. Busk 229 Pole V. Leask 102 Porter v. Haley 23 Pratt V. Beaupre 161 President &c. Appleton Bank v. McGilvray 175 R Rechtscherd v. Accommodation Bank 673 Reynolds v. Dothard 370 Rice V. Wood 57 Rochester v. Levering 698 Ross V. Houston 296 S Schaefer v. Henkel 438 Scribner v. Collar 707 Searle v. Parke 260 Second Nat. Bank v. Midland Steel Co. 149 Seymour Woolen Factory Co. v. Brodhecker 169 Sheffield v. Ladue 378 Shisler v. Vandike 328 Shoninger v. Peabody 349 Sutton V. Tatham 181 Stainback v. Read 207 Star Line of Steamers v. Van Vliet 190 State v. Hubbard 1 Stephenson v. Duncan 669 Sterling v. Smith 70S Stetson V. Patten 342 Stewart v. Pickering 90 Swim V. Wilson 415 Talbot V. Bowen 42 Taymouth v. Koehler 324 Terre Haute &c. R. Co. v. Mc- Murray 192 re to Pages A Texas &c. R. Co. v. Johnson 604 Thomas v. Atkinson 477 V. Dabblemont 720 Thompson v. Chouteau 157 Thurber v. Anderson 227 Timberlake v. Thayer 543 Timken v. Tallmadge 394 Towle V. Leavitt 213 Trueblood v. Trueblood 340 U Union Pacific R. Co. v. Erickson 574 United States v. Grossmayer 36 V Valtez V. Ohio &c. R. Co. 570 Van Antwerp v. Linton 426 Varnum v. Martin 719 Vickery v. Lanier 734 Vicksburg & Meridian Co. v O'Brien 319 Vinton v. Baldwin 534 Von Hurter v. Spengeman 692 W Wallace v. Lawyer 358 Walter v. James 375 Watteau v. Fenwick 474 Weaver v. Ogletree 361 Wellington v. Jackson 336 Wells V. Collins 686 White V. Skinner 392 Whitney v. Dutch 18 Williams v. Butler 371 v. McKay 737 Wisconsin v. Torinus 326 Wolfe V. Howes 553 Wood V. Goodridge 132 V. McCain 11 Worrall v. Munn 81 Worthington v. Cowles 387 Wortman v. Price 25 Yeomans v. Contra Costa &c. Co. 586 Yerrineton v. Greene 550 CASES ON AGENCY Section 1. — Definition of Agent. -TATE V. HUBBARD. > Kan. 797. ;i(_ii!. ui>;'i' I- L'juii, oiLi'.-. 'ICC vjl::j!_^. The defendau' ,%u:> - embezzlement. From an order overruling the motion to ;als. : 3) — ^The principal question pre- icr a receiver who unlawfully appro- his hands as receiver, or friils it. px- ver the same on demand, is subject to n aru, i^.MM. 1, V - •-'■■■■—-' "^he defendant "'■ ''' upon the tl^'cn ■ under that -:•-:;;': j:. : ■ 1889 V " .v^t::.: -If li -■ '>"'r to '■: ^'er or em- >ine into ment, o' ■ --' after - ■ ' ■ - ■IS for , ■'}■ ■ nij.l-:c delivery • r or pinnloy^r? aey or other property to his c .Mi "agent," within the -mea"'- rntion of the defendant is th; between a for whom Johns&n 604 477 720 157 227 ,r 543 394 ia 213 I rut-blood .340 U iv Co. V. Erickson 574 &c. R. Co. 570 ' 'ti ^•r! 426 719 Lar.jci 734 & Merid: ian 319 Raliiwin 534 Spengeman 692 358 375 474 361 .' ackson 336 6S6 392 .vuti ll 18 . Butler 371 737 326 553 132 H 81 .387 &c. Co. 586 550 CASES ON AGENCY CHAPTER I. NATURE AND KINDS OF AGENCY. Section 1. — Definition of Agent. STATE V. HUBBARD. 1897. Supreme Court of Kansas. 58 Kan. 797. Appeal from district court, Shawnee county. The defendant was indicted for embezzlement. From an order overruHng the motion to quash the indictment, defendant appeals. Johnson, J. (after stating the facts) — The principal question pre- sented for determination is whether a receiver who unlawfully appro- priates money which comes into his hands as receiver, or fails to ac- count for and pay over the same on demand, is subject to prosecution and punishment as for embezzlement. The defendant was prosecuted upon the theory that he was an agent, and under that portion of para- graph 2220 of the General Statutes of 1889 which provides : 'Tf any agent shall neglect or refuse to deliver to his employer or em- ployers, on demand, any money, bank bills, treasury notes, promissory notes, evidences of debt, or other property which may or shall have come into his possession by virtue of such employment, office or trust, after deducting his reasonable or lawful fees, charges or com- missions for his services, unless the same shall have been lost by means beyond his control, before he had opportunity to make delivery thereof to his employer or employers, or the employer or employers have permitted him to use the same, he shall upon conviction thereof be punished in the manner provided in this section for unlawfully converting such money or other property to his own use." Is a receiver an "agent," within the meaning of the quoted sec- tion ? The contention of the defendant is that the relation of agency, as ordinarily understood, does not exist between a receiver and the court which appoints him or the parties for whom he acts. A ma- 2 NATURE AND KINDS. jority of the court agree with this contention, and are of opinion that a receiver is not an agent, within the meaning of the statute. It is held that, in construing a criminal statute, words must be given their ordinary meaning, unless it is clear that another was intended, and that to place receivers in a class with agents requires an unusual and strained construction of the statutory language. It does not appear that receivers have ever been designated as agents in our statutes or in the decisions of the court, and, as an evidence that they were not within legislative contemplation, attention is called to the fact that in the first part of the section mention is made of executors, administrators, guardians and others, vested with official functions somewhat similar to those exercised by receivers, but no mention is made of receivers. It is argued that, if the legislature had intended to make receivers subject to the penalties of that statute, they would have been specifically enumerated with the others of the same general class. The gist of the offense prescribed by the statute is neglect or refusal of an agent "to deliver to his employer or employers on demand any money," etc., and it is said that this statute manifestly contemplates that the agent mentioned shall have an employer. Can it be said that the court is the employer of the receiver, or that he is employed by the parties to the action wherein the receiver is ap- pointed? The court does not pay the receiver, and is not an employer as the term is ordinarily understood. So, it is said that the parties litigant cannot be said to have employed him, because they did not consent to his appointment, and he does not act under their orders or directions. A receiver is generally regarded as an officer of the court, and subject to its orders and directions. The property or money which comes into his hands as such officer is regarded as being in cnstodia Icgis, to be delivered or paid over to those who may establish a right to the same. He stands in an indifferent attitude, not representing the plaintiff' or the defendant, but really represent- ing the court, and acting under its direction, for the benefit of all the parties in interest. He has no powers other than those conferred by his appointment, and being but the hand or arm of the court itself, the conclusion is that he does not stand in the relation of agent to the court or to the parties in litigation. The writer is unable to reach this conclusion. The term "agent" is one of wide application, and as used in the statute it seems to fairly include receivers. "Agency is the relation, created either by express or implied contract, or by law, whereby one party siii juris, called the principal, constituent, or employer, delegates the transaction of some lawful business, with more or less discretionary power, to another party, called the agent, attorney, proxy, or delegate, who undertakes to manage the affair and render to him an account thereof." i Am. & Eng. Enc. Law (2d Ed.^ 937. Webster defines an "agent" as "one who acts for or in the place of another, by authority from him." To constitute agencv in its broader sense, it is not essential that it should be created ' r the law, and any one or undertakes to do something for him and .. j..._;>orly designated as an "acr-^' *^ " ^''^ the mind e term "agent" was not used in v - in a lim- ' of using- restrictive language, is de- . .plication are emr^loved. For inst ^ words used \ ■' ' ' ty for iccount ^ pos- "such ; .be words ,:. ...ly bt-oadeii "ent," and •-t the legislature did not inte -> agencies - '■ '' • ' r-.ct, but rati' '-^nd to t or official State '. I/O, it was contended 1 sense ; and it was there ; this provision to the agents previoiisiy ;, I: ally have said 'any such agent/ and that. to use that or some similar term, and in fact using the corn Jve expression 'any agent/ it intended to include every In State v. Spaulding, 24 Kan. i, the city clerk, who was for the embezzlement of license fees, and which had not o the city treasurer, contended that he was not the 3gent City, within the meaning of the law, and it was held : u •■umes to act as the agent of another, he ma-' v.ci. '- ., deny his a.i^rency, I'wd "that one who money is agent (•-.■-•-?■■ +'^ '--- '•"nishcu l. ■, ..^ . /./.imx,;,, h. ■ther embezzlemc a county treasurer, it was ■ led that he had no empio^er, ui me st ' • ' ' ' ' ed in the statute ; but the court ^av ^ he v/a'^ 1 thit b' ior the -!. 274, 2( ■'c a recc ; under its or- nd instriK. Ill 1-. ,.;- (-j.u.T.i - "lie parti'=,:- ation is that of agency. He re 1 the. pa; • them all in the trans h d. The defendant he - 3 of the state printing estabh- transactions with hundreds o: ,.,. .. .;.. . ... ! out of the state. In dealing with these parties he court and those who owned an interest in thr • isiness. They may properly be regarded as th 'id he as the agent, rei' ler the authority ar . ' nv I5(S, it is said taai die i\ no: him is one of nc':ricv;'' ,- • : LiC g^iven .v.. .1 intended, es an unusual ' ,1 ..'s not nployer. Can ■ '^r that he or is ap- ofFicer is regarded as •n, and Vm. & Eng. En • " " who act L.onstitnt ^ ..id be cr- DEFINITION. 3 by agreement or contract ; it may arise under the law, and any one who represents another or undertakes to do something for him and on his authority is properly designated as an "agent." To the mind of the writer the term "agent" was not used in the statute in a lim- ited sense. Instead of using restrictive language, expressions de- noting the widest application are employed. For instance, the words "any agent" are used ; and, in treating of the money or property for which he must account it speaks of that which comes into his pos- session by virtue of "such employment, office or trust." The words last quoted certainly broaden the meaning of the term "agent," and indicate that the legislature did not intend to confine it to agencies arising under a mere contract, but rather that it should extend to agencies possessing the trust or official character as well. In State V. Bancroft, 22 Kan. 170, it was contended that the word "agent" was used in a limited sense ; and it was there held that, "if the legis- lature had intended to limit this provision to the agents previously enumerated, it would naturally have said 'any such agent,' and that, failing to use that or some similar term, and in fact using the com- prehensive expression 'any agent,' it intended to include every agent." In State v. Spaulding, 24 Kan. i, the city clerk, who was prosecuted for the embezzlement of license fees, and which had not been paid to the city treasurer, contended that he was not the agent of the city, within the meaning of the law, and it was held that, when one assumes to act as the agent of another, he may not, when chal- lenged, deny his agency, and "that one who is agent enough to re- ceive money is agent enough to be punished for embezzling it." In another embezzlement case, against a county treasurer, it was contended that he had no employer, in the sense in which that term was used in the statute ; but the court gave no ear to the conten- tion, and held that, although he was an officer, the public might be regarded as his employer, and that he was therefore subject to prose- cution for the embezzlement of the public funds. State v. Smith, 13 Kan. 274, 294. While a receiver is an officer of the court, and acts under its or- ders and instructions, his relation to the court and to the parties in litigation is that of agency. He represents the court and the par- ties, and acts for them all in the transaction of the business for which he was appointed. The defendant here was intrusted with the prop- erty and business of the state printing establishment and, as receiver, he had business transactions with hundreds of persons and corpora- tions in and out of the state. In dealing with these parties he repre- sented the court and those who owned an interest in the printing plant and business. They may properly be regarded as the principal or principals, and he as the agent, representing them, and transacting the business under the authority and direction of the court. In 20 Am. & Eng. Enc. Law 158, it is said that "the relation of a receiver to the court appointing him is one of agency ;" and so it would ap- 4 NATURE AND KINDS, pear that, when the statute employs language indicating that the term "agent" is to be applied in its wider sense, it should be held to include receivers. See also, Ellis v. Little, 2'] Kan. 707. It can hardly be that the legislature, which apparently was endeavoring to reach every one guilty of embezzlement, intended to exempt a class of persons intrusted with property and funds so numerous as re- ceivers ; and, unless they are held liable within the provisions of this statute, they cannot be punished for embezzlement. As a majority of the court are of opinion that they are not included within the terms of the statute, it must be held that the court erred in overruling the motion to quash the information. The judgment of the district court will be reversed, and the cause remanded, with direction to discharge the defendant. DosTER, C. J., concurring. Johnston, J., dissenting. Allen, J. (concurring specially). It is apparent that the informa- tion was framed to charge the defendant with embezzlement under the last part of paragraph 2220, which relates to agents only, and that the case was tried on the theory that he was so charged. That a receiver is not an agent, having an employer to whom he is bound to account and pay over the money received, within the usual meaning of the words, seems to me reasonably clear. Whether a receiver might be charged and convicted of embezzlement under the first part of the paragraph is a question concerning which I am unable to find a satisfactory answer. Receivers are not named, nor do they fall strictly within any class of persons mentioned in the section ; yet it would seem to be in the nature of things the same offense for a re- ceiver to convert to his own use trust funds in his hands as for any person belonging to either of the classes mentioned to convert like funds in his hands. ^ ^ "The term agent may, therefore, be said to apply to any one who by author- ity performs an act for another." Hadley, J., in Wynegar v. State, 157 Ind. 577, 579- . See article, "Agency," by O. W. Holmes, Jr., in 4 Harv. Law Rev. 345-364 and 5 Harv. Law Rev. 1-23. See also article, "Of the Nature of Agency," by Everett V. Abbot, 9 Harv. Law Rev. 507-520. See brief discussion of the inandatnm of the Roman Law in Story on Agency (8th ed.), § 4. On the distinction between an agency and a partnership, see Person v. Car- ter, 7 N. Car. 321, 324. Section 2. — >ii Between Asrent and Servant. cLLAIE UOURT OF INDIA; 3_pp. 8o. .LO. sued Silvers arid Silvers oi ssory note al- f^ been executed by tb^^ ht<«"r to r. The com- •nt of a debt / the note was II one Nichols, a travehng salesman of the plaintiff .. ../ity from plaintifi' ' ■- ^ - '■- v-.^+.. ^'--ni defend- iier the note had bev :-fendants d to Nichols to be oy r.ur, : vjdv^j^. '..J r , . . ■• -ed the note so as to make it provide for instead of from the time of maturity ; tiiai tlic in the absence and without the knowledge or :ther plaintiff or defendants ; that the note was delivered lo plaintiff in its altered state, and that plaintiff never, ratified or approved of such alteration. The suit was on 111 its original state. In the circuit court the defendants de- generally to the complaint. The circuit court sustained the r and rendered judgment for the defendants. One of the •J questions in the case was whether at the time Nichols made ' ation of the note, as alleged in the complaint, he sustained ion of agent to the plaintiff so as t'^ r,'-'.i.'r the act of altera- act for which plaintiff' was respci r if the alteration '■'■'•] and was made by the plaintin ^ a;^.cnt, the note would )me null and void, whereas although the alteration was . \et if it was r\-' ■ ' ' 'ranger, it would be but a •n and v/nuld m' '), but it entrusted certain bus' its agent, and rson made the ah •• '■ - • ' udS made by the . hile in the tran^ isiness and in the f his autlioritv. : ji ihc agent is the act of the ! Qui facit per :r se. Th/- 'solution of this case n the relation existing betwet : and the plaintiff, ihe alteration was made. If 1 ^ .::e plaintiff's ae< 'V- act was within the scope of his authority, then his act •'' the act of the plaintiff and the law is with the defen . ■ n was that of a mere stranger to the note, then tl ' ' ;tiff. * * * . I'urther insist that Nichols was the ardent o^ deration ; that he was acting in tlic ■ of his e^T•lo^•me^.t : that his w; uhat the ■.^.i 00 held to ft can hardly adng to '': a class agents 1 charge(t. j. w. -. om he is bound t' ' meaniiv nor do the V. Law Rev. 34573^' .cure of Agency,"' l, '1 Law in Story c \ see Person v. Cat AGENT AND SERVANT. 5 Section 2. — Distinction Between Agent and Servant. KINGAN & CO. V. SILVERS and Others. 1895. Appellate Court of Indiana. 13 Incl. App. 80. KiNGAN & Co. sued Silvers and Silvers on a promissory note al- leged to have been executed by the latter to the former. The com- plaint alleged that the note was executed in settlement of a debt owing by defendants to plaintiff ; that the execution of the note was procured through one Nichols, a traveling salesman of the plaintiff wIto had authority from plaintiff to obtain such note from defend- ants ; that after the note had been written and signed by defendants and delivered to Nichols to be by him conveyed to the plaintiff, Nichols altered the note so as to make it provide for interest from date of its execution instead of from the time of maturity ; that the alteration was made in the absence and without the knowledge or consent of either plaintiff' or defendants ; that the note was delivered by Nichols to plaintiff' in its altered state, and that plaintiff never, in any way, ratified or approved of such alteration. The suit was on the note in its original state. In the circuit court the defendants de- murred generally to the complaint. The circuit court sustained the demurrer and rendered judgment for the defendants. One of the principal questions in the case was whether at the time Nichols made the alteration of the note, as alleged in the complaint, he sustained the relation of agent to the plaintiff so as to render the act of altera- tion an act for which plaintiff was responsible ; for if the alteration was material and was made by the plaintiff's agent, the note would thereby become null and void, whereas although the alteration was material yet if it w^as made by a mere stranger, it would be but a spoliation and would not destroy it. LoTZ, J. [After deciding certain other questions.] The change in the note was not made by the plaintiff's order or direction, but it entrusted certain business to another as its agent, and such person made the alteration. If the alteration was made by the agent while in the transaction of the principal's business and in the scope of his authority, then the act of the agent is the act of the principal. Qui facit per alium facit per se. The solution of this case depends upon the relation existing between Nichols and the plaintiff, at the time the alteration was made. If he was the plaintiff's agent, and the act was within the scope of his authority, then his act must be deemed the act of the plaintiff and the law is with the defendants. If his position was that of a mere stranger to the note, then the law is with the plaintiff. * * * The appellees further insist that Nichols was the agent of the payee in making the alteration ; that he was acting in the line of his agency and under color of his employment ; that his wrongful act is im- NATURE AND KINDS. putable to his principal. In support of this position appellees' learned counsel say: "This is upon the legal maxim' 'whatever a man sui juris may do of himself he may do by another,' and, as a correlative, whatever is done by such other in the course of his employment is deemed to be done by the party himself. On this principle the lia- bility of one person for the acts of another who is employed in the capacity of an agent is extended to the wrongful and tortious acts of the latter committed in the line and under color of the agency, although such unlawful acts were not contemplated by the em- ployment, and were done by the agent in good faith and by mistake. In other words, where a principal directs an act to be done by an agent, in a lawful manner, but the agent errs in the mode of execut- ing his authority to the prejudice of another person, the principal will be held responsible." This is a correct statement of the law. The same principles extend to the relations existing between a master and his servant. Thus if the engineer of a railway company negligently run a train of cars over a person who is without fault, the company is liable for the injury caused. The same doctrine is applied to the willful acts and the mistakes of agents and servants, committed by them while acting within the scope of the agency or line of the em- ployment. May V. Bliss, 22 Vt. 477 ; Luttrell v. Hazen, 3 Sneed (Tenn.) 20; Pennsylvania Co. v. Weddle, 100 Ind. 138; Evansville, etc., R. R. Co. V. McKee, 99 Ind. 519 ; Crockett v. Calvert, 8 Ind. 127. At the time Nichols made the alteration of the note, was he the agent or servant of the plaintiff in respect to his duties pertaining to said note? It is averred that he was the traveling salesman, but that he was not a general agent, and had no authority to make settle- ments or take notes on plaintiff's acccounts ; nor was that any part of his duties ; that being about to go to Lebanon in the course of his duties as such traveling salesman, the plaintiff instructed him to pro- cure for plaintiff from the defendants a note on account of an in- debtedness due from them to the plaintiff. But the averments of the complaint negativing the fact of agency will not control if it appear from all the averments that the legal relation of agency exists. The same person may be a special agent for the same principal in several different matters. Nichols was the agent of the plainfiff to sell goods. He was also its agent to procure the note. We are here concerned with the latter agency only. Did his relation as agent cease when he obtained the note or did it continue until the note was delivered to the plaintiff? If the agency ceased when the note was obtained by him, what relation did he sustain to the plaintiff in the interval of time between the delivery to him and the delivery to plaintiff? This leads to the inquiry: "Who are agents and who are servants?" In the primitive conditions of society the things which were the subjects of sale and trade were few in number. There was little occasion for any one to engage in commercial transactions, and when it did become necessary the business was generally transacted by the servnnt:-^ and n :i Oi ■'iJn.i' gro^v'■: sari'. is a .-. 3t meaning includes an agent, ihere is, however, in '■ - plation a difference between an agent and a servant. , to whom we are indebted for many of the principles of ii^v , ;u die early stages of their laws used the terms mandatum (t" u into one's hand or confide to the discretion of another) and ' (to transact business or to treat concerning purchas :; this rekition). Story Agency, § 4. Agency, properly si ,es to commercial or business transactions, while service has to actions upon or concerning things. Service deals with of manual or mechanical execution. An agent is the more ;■---•'■• nve of the master and clothed with higher powers f'tion than a servant. Mechem Agency, §§ r and 2. and "servant" are so frequently used ii'' - ividications that the reader is apt to conc^ n Liie same thing. We think, however, that the history oi •caring on this subject, shon - fhat there is a- difference be- em. Agency in its legal .vays imports commercial ■jetween two par'-'- ■ ■ '.u^h th^;- •-•''"•- - -■' -•■-'■her V negotiates or i- -d parti i;m- her. When Aic • aig wall the .i)ncerning the n' len the note .ered to him it Was in la • tiie 'plaintiff, and 1 ■ treat or deal with the d- U his duties concc-n- Llien related to the plaintiff. It was his duty to carry and ihe plaintiff. In doing thi'- ■'^- • ed no duty to the de- . ceased to be an agent b ■ was not required to vitli third parties. He v/ho t'lt :i rvant of the .ed with the duty of faithfully c." .id deliver! 'ig, .ster. When Nichols made the akeralion in •nt and not the agent of the plaintiff. A r contend, that if it be true that the : ned sui we, nicnt is the lia- 1 in the . • ;)us acts the agCDcy. " ^he eni- riistake. ;tted by :he em- . Sneed .;..rt -t of his • to pro 't of an in- . V J. ;nents of the jtrdl if it appear - -■ - 'Hie , he 10 by i!< iiL'. i val o plaintiff? servants?" ' were the , IS Httle 1 vhen .he AGENT AND SERVANT. 7 parties thereto in person. But the strong and powerful had many servants who were usually slaves. The servants performed menial and manual services for the master. As civilization advanced the things which are the subjects of commerce increased, and it became necessary to perform commercial transactions through the medium of other persons. The relation of principal and agent is but an out- growth or expansion of the relation of master and servant. The same rules that apply to the one generally apply to the other. There is a marked similarity in the legal consequences flowing from the two relations. It is often difficult to distinguish the difference be- tween an agent and a servant. This difficulty is increased by the fact that the same individual often combines in his own person the functions of both agent and servant. Agents are often denominated servants and serv-ants are often called agents. The word "servant" in its broadest meaning includes an agent. There is, however, in legal contemplation a difference between an agent and a servant. The Romans, to whom we are indebted for many of the principles of agency, in the early stages of their laws used the terms mandatum (to put into one's hand or confide to the discretion of another) and negotiiim (to transact business or to treat concerning purchases in describing this relation). Story Agency, § 4. Agency, properly speak- ing, relates to commercial or business transactions, while service has reference to actions upon or concerning things. Service deals with matters of manual or mechanical execution. An agent is the more direct representative of the master and clothed with higher powers and broader discretion than a servant. Mechem Agency, §§ i and 2. The terms "agent"' and "servant" are so frequently used inter- changeably in the adjudications that the reader is apt to conclude they mean the same thing. We think, however, that the history of the law bearing on this subject, shows that there is a difference be- tween them. Agency in its legal sense always imports commercial dealings between two parties by and through the medium of another. An agent negotiates or treats with third parties in commercial mat- ters for another. When Nichols was engaged in treating with the defendants concerning the note he w^as an agent. When the note was delivered to him it was in law delivered to the plaintiff, and he ceased to treat or deal with the defendants. All his duties concern- ing the note then related to the plaintiff. It was his duty to carry and deUver it to the plaintiff. In doing this he owed no duty to the de- fendants. He ceased to be an agent because he was not required to deal further with third parties. He was then a mere servant of the plaintiff charged with the duty of faithfully carrying and delivering the note to his master. When Nichols made the alteration in the note he was the servant and not the agent of the plaintiff. Appellee's learned counsel further contend, that if it be true that the master is liable for the wrongful and tortious acts of his servant it can make but little difference whether Nichols was asrent or servant when 8 NATURE AND KINDS. he made the change. Upon what principle is the master liable for the wrongful acts of his servant? This inquiry carries us back to the verv dawn of jurisprudence. The modem idea of law is that it con- sists of those rules of conduct prescribed and enforced by the sov- ereign power of the state. But as Mr. Justice Stephen truly remarks : "It is not till a very late stage of its history that law is regarded as a series of commands issued by the sovereign power of the state." As a matter of historical fact ancient laws were not commands. They were not issued by political superiors, nor were they enforced by punishment or otherwise. "They were merely customs sanctioned by usage voluntarily observed with that strong devotion to usage which always characterizes uncivilized nations." Vengeance on the part of the person injured is the foundation of all legal redress. The early history of all political societies shows the same system of private revenge and personal redress of injuries. Each person avenged in whatever manner he deemed right the injuries done him. The tribal customs not onlv sanctioned his doing so, but perhaps required him to do so. If he failed to avenge an injury or wrong he was brought under the ban of public contumely. The spirit of retaliation is deeply rooted in human nature. Retribution in kind is the first impulse of the savage mind on sustaining an injury. "An eye for an eye, a tooth for a tooth ; who so sheddeth man's blood by man shall his blood be shed — was the rule of all early and savage communities." If one man killed another, custom permitted and perhaps required that the blood relatives of the deceased should avenge his death by killing the slayer. The Romans were the most civilized of all the an- cient peoples. Their laws form the basis of all modern jurisprudence. Yet Mr. Mayle, in speaking of Roman law, well says : "A system of self-redress in the form of private vengeance preceded everywhere the establishment of a regular judicature; the injured person, with his kinsmen, or dependents, made a foray against the wrongdoer, and swept away his cattle and with them perhaps his wife and chil- dren, or he threatened him with, supernatural penalties by 'fasting' upon him as in the east even at the present day ; or finally he re- duced his adversary to servitude or took his life." Mayle's Just. Inst. Vol. I, p. 614. The family or tribe of the person who had com- mitted an offense might escape the vengeance of their adversaries by delivering up or surrendering the offending member. As society slowly and gradually emerged from this depth of barbarism, a cus- tom arose by which the person who inflicted the injury might buy off the vengeance of the injured. If the parties could not agree on the amount to be paid the tribal assembly fixed it. These tribal as- semblies met for the purpose of fixing the price of vengeance are the prototypes of modern courts. The idea that society or the state was injured by a wrong inflicted upon one of its members or upon his property was of much later growth. If a man's slave inflicted an in- jury upon another the injured party was entitled to wreak his venge- VND SERVANT. V I of the injury. This same principle uiniate objects. But the master or. owner 1 _e of the injured person by a money con- thereby save the Hfe of his slave or injury to his prop- ression into the history of law may seem inappropriate ^ of this case. But a knowledge of the hi.story of that with which any principle is connected, is often neces- £ true bearincrs and the limit>'. of its application can be niiined. which have 'rom certain • someti:. 1, sim^-b- be - a similarity •^s of two diiierent cases, .s the true principle iced or forgotten and a ii. . f-d to exr !.\"n rules •n a historical standpoint are wci is said to be the perfection of human i. ...-.,n>. her vvhen the reason fails the law fails. But \ >ns to certain conditions, are often mere piaLiiuu.;i. i he alv^ays proceed logically, for "the lif^ nf thf- law has ogle ; it has been experience. * * * which Jor granted have had to be laboriou-; , out, or at in times passed." Holmes Com. L., p. i. The principle ,!vvni^..: .n this case is that of the master's liabiHty for the tort of Ms servant. Let us take a common illustration. The driver of a art negligently runs over another in the street, the person •ing without fault. The grocer is liable for the negligence vant, the driver. But why or up principle? It -s ^ said that the reason for the mast iity in such ca^c\ '^ his negligence in employing an unskilful servant. If this were • ' '^'- the true reason, the logical result would be that if the master .uUty of no negligence in employing the servant he would not ible. This, however, we know does not foT ' ' ' "' are hf master used the gre^nie'^t f-nre in eiv ii ■ppose an cr. ; of a r .ii> wil- a train of cii ^erson; -o • ompany s liable for the wrongful act of its servant, and that it is no excuse I'or the company to .say it did not authorize the act and that it wai- lone without the knowledge or cojisent of the co npany, or against •^s expressed will or order. 'It is difficult to understand this principle of liability unless we ap- h it from the side of history. It is in reality a survival of the .it doctrine that the master or owner was liable for the act of his and for injuries committed by animals in his possession. Thi iu-nt idea was that the family of the master, including his -' - ■ his animals, and all other property, was a unity; and that sonality of the master affected all of his property • ''" ' ' entitled to all the lienefits of ownership he must ; •iries ca', ihe injui- u> tiie 't ron- leci as a lilht impui.se Oli • for an eye, a i.n shall his ■"••mitjes." •quired ', bv everywhere erson, with wrongdoer, . . :. lie re-- w,. ie's Just. u who had com- 'i' ir adversaries As societ}^ A, :;arism, a cus- ■iurv misfht buy . on as- ure the ate was ijion his ■ ■"" in- ' ^re- AGENT AND SERVANT. 9 ance upon the immediate cause of the injury. This same principle extended to animals and inanimate objects. But the master or owner might buy off the vengeance of the injured person by a money con- sideration and thereby save the life of his slave or injury to his prop- erty. This digression into the history of law may seem inappropriate to the decision of this case. But a knov/ledge of the history of that branch of law with which any principle is connected, is often neces- sary before the true bearings and the limits of its application can be fully determined. Principles which have originated from certain causes are sometimes misapplied, simply because there is a similarity in the facts of two dift'erent cases, and sometimes the true principle is overlooked or forgotten and a new one invented to explain rules which from a historical standpoint are well established. The law is sometimes said to be the perfection of human reason, and it is further said that when the reason fails the law fails. But these expressions when applied to certain conditions, are often mere platitudes. The law does not always proceed logically, for "the life of the law has not been logic ; it has been experience. * * * Many things which we take for granted have had to be laboriously wrought out, or thought out in times passed." Holmes Com. L., p. i. The principle involved in this case is that of the master's liability for the tort of his servant. Let us take a common illustration. The driver of a grocer's cart negligently runs over another in the street, the person injured being without fault. The grocer is liable for the negligence of his servant, the driver. But why or upon what principle? It is sometimes said that the reason for the master's liability in such cases is his negligence in employing an unskilful servant. If this were really the true reason, the logical result would be that if the master was guilty of no negligence in employing the servant he would not be liable. This, however, we know does not follow. It is no defense that the master used the greatest care in employing his servant. Again, suppose an engineer or servant of a railroad company wil- fully run a train of cars over another person ; we know the company is liable for the wrongful act of its servant, and that it is no excuse for the company to say it did not authorize the act and that it was done without the knowledge or consent of the company, or against its expressed will or order. It is difficult to understand this principle of liability unless we ap- proach it from the side of history. It is in reality a survival of the ancient doctrine that the master or OAvner was liable for the act of his slave and for injuries committed by animals in his possession. The ancient idea was that the family of the master, including his slaves, his animals, and all other property, was a unity ; and that the per- sonality of the master affected all of his property ; that as he was entitled to all the benefits of ownership he must accept the conse- quences flowing from injuries caused by his property. He might buy off the vengeance of the injured person or he might appease it 10 NATURE AND KINDS. by surrendering- the injured property to the person aggrieved. In Roman law there was a class of actions known as noxal actions, which provided for this vicarious liability. The defendant had the option of surrendering the delinquent instead of paying damages. In ancient times the masses were slaves ; in modern times the masses are freemen. When slaves became freemen the master was shorn of his power to surrender the delinquent servant ; but he still continues to be liable for the acts of his servant done in the line of employment. This principle of liability originates in slavery and in the power and dominion that the master exercised over the members of his family. But it may be said that as the master has ceased to have any property in his servants, and as he is shorn of his power to surrender a delin- quent, the reason for the rule fails, and that the law must fall with the reason, and that this would result in exonerating the master from all liability in all such cases. It is true that the power of surrender- ing the delinquent has ceased, but it is not true that the personality of the master has ceased to affect his servants. The will of the mas- ter dominates any given enterprise. He calls to his aid servants and appliances. The servant surrenders his time and in a measure permits the will of the master to dominate and control his actions. He is the instrument of his master in accomplishing certain ends. The servant is placed in the position and given the opportunity to commit the wrong by the will of the master. In a qualified sense the servant is the representative of the master. Without the con- trolling, dominating influence of the master's will there is but the re- motest probability that the servant would have been placed in the po- sition or given the opportunity to commit the particular wrong. Anciently the liability of the master was not limited by the duties imposed upon his slave. When a servant became a freeman he was no longer a member of the master's family, and he could not prop- erly be said to be the representative of his master except in the line of the employment. Modern jurisprudence properly and justly lim- its the liability of the master to the acts of his servant done within the scope of the employment. There is still substantial and just grounds for the principle that the master is liable for the wrongful acts of his servant. No liability arises against the master for the wrongful acts of his servant unless the servant has perpetrated an in- jury either upon the person or property of another. Nichols was the servant of the plaintiff when he made the alteration of the note. But did he inflict any injury upon the property of the defendant? Cer- tainly not. The injury, if any, was inflicted by the servant upon the property of his own master, and not upon the property of the defend- ants. If appellee's contention be true, Nichols destroyed the plaintiff's note, and no recovery can be had upon it nor upon the original con- sideration. The principle that the master is liable for the tortious acts of his servant committed in the line of the employment has no ap- tAL AND UNIVERSAf,. II i)lication to the facts of this case, for no injury was done the defend- .•.nt's property/ * * Our c'McnKion is tli ,s, when he made the alteration of the note, he relatiou Lo it of a stranger, and that his act was a mere -\ Jn. 's and Gavin dissented. ■ f -h iho. , PI lice-. - Section 3. — Special, General and Universal Agents. WOOD 841;. Supreme Court OF Alaba- ..■•- r err.ji to the circuit court of Talledega. ■endant in error having recovered a judgment against Wii- -vis and.EHsha B. Stedman, made the affidavit required by and caused a garnishment to be issued and served on sun- ns supposed to be debtors of Stedman, among whom was mitli. This garnishee appeared and answered that he was • Stedman for professional services as a physician, ren- 840, to the amount, as he understood, of ninety-six dollars, s due on the first of January, 1841. Some few days pre- iie service of the garnishment, the garnishee was informed .\v Wood, that he need not consider himself Stedman's • longer, that the books or accounts of the latter had been l to him. Wood proHr.red no written transfer, and the iuade no promise of . .rmity to law, a not:. . -^ued. reculriniy Wood to ap- II of the opinion is onit!- a-t of ser // servan. 'f speci**? of serva: tiie ]aw3 of Eng- doenia, or domes- om apprendre, to ' ■ nr inden- • m. * * * ' '■ ' day :'rior, a minisienr:! '"rn^ "hap. XIV, inction between Kent Com. ( ; •' bv Tohn H. ■ such a c In -■.'....lOns, had the nilv. - , .aali.y will of the mas- aid servants n a measure actions. he WHS •t prop- the line lor the J an in- was the ;.. But C'er- ...i. ii|-..'ii the ! the defend- ' • Iff's . on- ihc tortious iit has no ap- SPECIAL, GENERAL AND UNIVERSAL. II plication to the facts of this case, for no injury was done the defend- ant's property.^ * * * Our conclusion is that Nichols, when he made the alteration of the note, stood in the relation to it of a stranger, and that his act was a mere spoliation. Judges Davis and Gavin dissented. Judgment reversed at the cost of the appellees.- Section 3. — Special, General and Universal Agents. WOOD V. McCAIN. 1845. Supreme Court of Alabama. 7 Ala. 800. Writ of error to the circuit court of Talledega. The defendant in error having recovered a judgment against Wil- liam Revis and Elisha B. Stedman, made the affidavit required by statute, and caused a garnishment to be issued and served on sun- dry persons supposed to be debtors of Stedman, among whom was John S. Smith. This garnishee appeared and answered that he was indebted to Stedman for professional services as a physician, ren- dered in 1840, to the amount, as he understood, of ninety-six dollars, which was due on the first of January, 1841. Some few days pre- vious to the service of the garnishment, the garnishee was informed by Mathew Wood, that he need not consider himself Stedman's debtor any longer, that the books or accounts of the latter had been transferred to him. Wood produced no written transfer, and the garnishee made no promise of payment. In conformity to law, a notice was issued, requiring Wood to ap- ^ A portion of the opinion is omitted. ^ "The first sort of servants, therefore, acknowledged by the laws of Eng- land, are memal servants; so called from being intra moenia, or domes- tics. * * * "Another species of servants are called apprentices (from apprendre, to learn), and are usually bound for a term of years, by deed indented or inden- tures, to serve their masters, and be maintained and instructed by them. * * * "A third species of servants are labourers, who are only hired by the day or the week, and do not live intra moenia, as part of the family. * * * "There is yet a fourth species of servants, if they may be so called, being rather in a superior, a ministerial, capacity; such as stezvards, factors, and bailiffs." I Bl. Com., Chap. XIV, 425, 426, 427. See also i Bl. Com. (Ham- mond's edition) 7i9n. See further, on the distinction between agent and servant, Holland's Juris- prudence (9th ed.) 115; 2 Kent Com. (12th ed.) 260, note i; article, "Respon- sibility for Tortious Acts," by John H. Wigmore, 7 Harv. Law Rev. 3S3, 393n. Regarding the origin of this maxim, see I Bl. Com. (Hammond's edition) 720, 728, 730. 12 NATURE AND KINDS. pear and contest with the plaintiff, the right to the money owing by the garnishee. Wood appeared, and an issue was made up and sub- mitted to a jury for the trial of that question, who returned a ver- dict for the plaintiff, and judgment was rendered accordingly. From a bill of exceptions sealed at the trial of the facts of the case, and the ruling of the court thereupon, may be thus briefly stated, viz. : some time before the garnishment issued, Stedman left the state on a visit, having first made Revis his agent by mere verbal appointment, with a general authority to transact all business for him in this state; he left with his agent his books and accounts for medical services (in- cluding the account of the garnishee) for settlement. Wood was in- formed that the plaintiff' intended to garnishee the debtors of Sted- man, and being a surety of the latter in a promissory note for one thousand dollars, discounted by the State Bank, immediately applied to Revis for indemnity against the consequences of his suretyship. Accordingly, on the 26th January, 1841, Revis executed a deed in Stedman's name, transferring the books and accounts of his prin- cipal to Wood, and then delivered the same to the assignee, who forthwith notified the garnishee of the fact and instructed him to pay what he owed to him (assignee), or his order. The deed of assignment was rejected as evidence, because there was no written authority to execute it. About March, 1841, Sted- man returned to the state, and on being informed of the transfer and delivery of the books and accounts to Wood, forthwith ratified the same. The court charged the jury that it was not competent for Revis to make the transfer of the books and accounts, as he had done, and that the ratification did not legalize it. Collier, C. J. — The precise language employed in the bill of ex- ceptions, is this : "Stedman visited North Carolina and left William A. Revis, his general agent, or agent generally (said Revis having no written authority), to transact his business in this state; that he de- livered up his books and accounts for medical services to said agent (including the account against garnishee) for settlement, and that said agency was advertised and generallv known in the neighbor- hood." It is supposed by the counsel for the plaintiff in error that, as Revis was the general agent of his principal, it must be presumed he was authorized to make the assignment in question. This conclusion is by no means a necessary sequence from the premises. General are clearly distinguishable from universal agents, that is, from such as may be appointed to do all acts which the principal can personally do, and which he may lawfully delegate the power to another to do. "Such a universal agency may potentially exist ; but it must be of the very rarest occurrence. And, indeed, it is difficult," says Mr. Jus- tice Story, "to conceive of the existence of such an agency, inasmuch as it would be to make such an agent the complete master, not merely dux facti, bu: the complete disposer of all the rights ic^pai. Such an unusual authority will neve'r general expressions, however broad, but the iicm to the ] the party, in re- is presumed. :,:e '!n .^iilhority rected. Thus, it a merchant, m V po- Id delegate to anagent his full an«. _. i.. , a.;., ^.rity • • d property, to buy any property for him, or on his niake any • " ' ' ' ' ' ' it could do ■ ited to buying- o arv merchant ; and, \ Ion. construed to apply to a sale < -.ehoia furniture, the utensils, provisions and ... -;-•,,;:<-. -cwl li^ lory on Agency, 20, 21. nee betvreen a general and speciiu r.-^i.i :.- -a^a il> ije iner is appointed to act in the affairs of his principal 1 the latter to act concerning some particular object, r case, the principal will be found by the acts of his , the scope of the general authority conferred on him, .e acts are viol'^r.vt- of hU nrivate instructions and direc- 1 the latter case, exceeds the special authority ' •! him, the priu.,, .a ;-. .^.i. bound by his acts. Story on : Paley on Agency, too: Munn v. Commission Co., 15 , 54 (8 Am. Dec. 2\ ' - laid do ' a agent em- buy has no author! :!, and a .. Story on ^2. So an agency ior the j^urpose of accepting or in- . or notes, does not authorize the ageni f' • Tvirchase or ■ for his principal. Id. 84, And an author: .. a bond m itself embrace -'^ ■ - ■•" '- ■ .-:••-■'- -'- « ■ *i -8. Nor has ari r, ordin;! ' when i* ise ciiin money. for tlie ^.ve notes ;.ts of Strang l of the principal . . lor g(X)ds w., ■ him and which ne to his use. Odic ■ s. 181; Wallace i. Bank at Mobile, i ,\in. 51 ct v. R' ;4 (24 Am. Dec. 62), it was : 'wer of . debts, to execute deeds of lands. iplish a at of -all the concerns of the zv . in a p I to do all other acts which the constituent could d " ^* authorize the giving of a note by the -ii^.-' rincipal. Further, that the general w * -ence to the matter specially mr ' • a complete adjustment, etc., :\vinef b\' V. Froi! v, and thr ^1, viz. : somt ; p nn ;■) l-! must be or >ays Mr. Jus V inasmucl' r-t merel-. SPECIAL, GENERAL AND UNIVERSAL. I3 dux facti, but dominiis rcriim, the complete disposer of all the rights and property of the principal." Such an unusual authority vnW never be inferred from any general expressions, however broad, but the law will restrain them to the particular business of the party, in re- spect to which, it is presumed, his intention to delegate the authority was principally directed. Thus, if a merchant, in view of his tempo- rary absence, should delegate to an agent his full and entire authority to sell his personal property, to buy any property for him, or on his account, or to make any contracts, or to do any other acts whatso- ever which he could do if personally present — these general terms would be limited to buying or selUng, connected with his ordinary business as a merchant ; and, without some more specific designation, would not be construed to apply to a sale of his household furniture, or library, or the utensils, provisions and other necessaries used in his family. Story on Agency, 20, 21. The difference between a general and special agent is said to be this : The former is appointed to act in the affairs of his principal generally, and the latter to act concerning some particular object. In the former case, the principal will be found by the acts of his agent, within the scope of the general authority conferred on him, although those acts are violative of his private instructions and direc- tions. In the latter case, if the agent exceeds the special authority conferred on him, the principal is not bound by his acts. Story on A-gency, 114; Paley on Agency, 199; Munn v. Commission Co., 15 Johns. 44, 54 (8 Am. Dec. 219). It is laid down that an agent em- ployed to buy has no authority to sell, and vice versa. Story on Agency, 81, 82. So an agency for the purpose of accepting or in- dorsing bills, or notes, does not authorize the agent to purchase or sell goods for his principal. Id. 84. And an authority to take a bond does not in itself embrace the power to receive the money due there- on. Id. 88. Nor has an agent, for the purpose of receiving a debt, the power, ordinarily, to receive it in anything else than money, and then only when it is matured. Id. 88, 89. Where one is authorized generally to sign promissory notes for the debts of the principal, the authority cannot be implied to give notes to pay the debts of strangers, or to pledge the credit of the principal as a surety, for goods which were not bought for him and which never came to his use. Odiorne v. Maxey, 13 Mass. 181 ; Wallace V. Branch Bank at Mobile, i Ala. 565. In Rossiter v. Rossiter, 8 Wend. 494 (24 Am. Dec. 62), it was held that a power of attorney, to collect debts, to execute deeds of lands, to accomplish a complete adjustment of all the concerns of the constituent in a particular place, and to do all other acts which the constituent could do in per- son, does not authorize the giving of a note by the attorney in the name of the principal. Further, that the general words must be con- strued with reference to the matter specially mentioned, and that the authority to make a complete adjustment, etc., did not authorize the 14 NATURE AND KINDS. giving of a note on the purchase of property. So it has been ad- judged that a power of attorney "to ask, demand, sue for, recover and receive all such sum or sums of money, debts, dues, accounts, and other demands whatsoever, which are, or shall be due, owing, payable, and belonging to us, or detained from us in any manner or ways or means whatsoever, etc.," does not authorize the attorney to compound for, receive and release a sum of money which is not due and payable. Hefferman v. Adams, 7 Watts 716. In the case at bar, the general words are, "to transact his (the principal's) business in this state ;" but as it respects the books and accounts for medical services rendered by Stedman, these words are restricted by declaring that they were delivered to the agent "for settlement." By this we are to understand that Revis was to collect, or, it may be, otherwise settle these demands with the persons from whom they were due. It would require a most unwarrantable ex- tension of terms to hold that they conferred the power upon the agent to assign the books and accounts to a surety of his constituent for his indemnity. The citations we have made upon this point are pertinent, and most satisfactorily show that the assignment in ques- tion was not authorized by the power previously given. ^ * * * Without adding more, the result is that the judgment must be af- firmed.^ ^ A portion of the opinion is omitted. "For further cases treating of special and general agents, see Chap. V, § i. "Authorities by letters of attorney are either general or special; thus a letter of attorney may be to sue in omnibus cattsis niotis et movendis, or to defend a particular suit." Holt, C. J., in Parker v. Kett, i Salk. 95, 96. CHAPTER IT. Section 1. — Who can De Priiiup' FCr HO AG I'S^ri, :m ip:: ;ii Court of Judicature c 15 Wenr; atg^omery conunoii pleas. Maria Van Home, an r friend, brought an action of replevin against 1 and I '■■ the taking of two cows and a calf. A. Van ^j li.e, the fauu, ; .-i the plaintiff, testified that with the plaintiff's consent he had sold a cow belonging to her and with the proceeds '"■ for her another cow, which was one of the cows de- the fk:''! 'r:'.t!on. The trial court in "chprginGf the jury left 'ler A. ' Ue agent of ■its excc^ ,^^ j 1 * =.-■ -i^ "Yi^Q Qpjy clifticulty in the case is e cow which Van Home purchased of Easterbrooi > ...... r.c plaintiff in the place of the one he had previously sold. ' :d as a gift >.• rt of tht ' ■' ' as tirne, the dn TTjirc^rl 11 ••<^^'=-\ la ; aiiu ii it was a sale ■ t'n'ma facie fraudulent •■. •he possession of tlic proj-eny. Jr was important. the plaintiff to connect this transaction with her title t was given to her by Gross. The court charg-ed the ^' ne merely carried ir,' "' ' the will of his of one row and pro> her another as iff was n^ the (, ■ jury, as matter of law, that the piainiiir, th' .1.-. .litr.*.- hi-r father an agent f'^f '''^ '"-ale of h this particular y The ,.S'^t for the -■' - " '" -•"'"tted. and it be af- CHAPTER II. COMPETENCY OF PARTIES, Section 1. — Who can be Principal. FONDA AND HOAG v. VAN HORNE. 1836. Supreme Court of Judicature of New York. 15 Wend. (N. Y.) 631. Error from Alontgomery common pleas. Maria Van Home, an infant, by her next friend, brought an action of replevin against Fonda and Hoag for the taking of two cows and a calf. A. Van Home, the father of the plaintiff, testified that with the plaintiff's consent he had sold a cow belonging to her and with the proceeds purchased for her another cow, which was one of the cows de- scribed in the declaration. The trial court in charging the jury left to theiTL the question whether A. Van Home acted as the agent of the plaintiff. The defendants excepted to the charge. Bronson, J.^ * * * f he only difficulty in the case is in rela- tion to the cow which Van Home purchased of Easterbrooks and gave to the plaintiff' in the place of the one he had previously sold. If this must be regarded as a gift on the part of the father, then, as he was insolvent at the time, the daughter acquired no title as against his creditors ; and if it was a sale instead of a gift by the father, it would be prima facie fraudulent as against creditors, because he still retained the possession of the property. It was important, therefore, for the plaintiff to connect this transaction with her title to the cow that was given to her by Gross. The court charged the jury that if Van Home merely carried into effect the will of his daughter by disposing of one cow and procuring for her another as good, as her agent, then the plaintiff was the real owner, and the defendants were not justified in taking the cow. This was, in effect, instructing the jury, as matter of law, that the plaintiff, though an infant, could constitute her father an agent for the sale of her prop- erty. The charge was in this particular erroneous. The plaintiff could not appoint an agent for the sale of her property. Her \\all ^ A portion of the opinion is omitted. 15 l6 COMPETENCY OF PARTIES. or consent conferred no authority upon her father. She might treat him as a wrong-doer for making the sale, and the purchaser acquired no title. Notwithstanding the attempted transfer, the cow, which was the gift of Gross, still remained the property of the plaintiff, and she might assert her right to the property in the same manner as though it had been wrongfully taken by a stranger. What acts of an infant are void, and what are voidable only is a question which has been very much discussed in the books ; and several attempts have been made to lay down some general rule which should be applicable to all cases ; but with no great success. In Keane v. Boycott, 2 H. Bl. 511, Ld. Ch. J. Eyre laid down the doctrine that where the court could pronounce the contract for the benefit of the infant, as for necessaries it was good ; where the court could pronounce it to be to the prejudice of the infant it was void; and in those cases where the benefit or prejudice was uncertain, the contract was voidable only. This may answer well enough as a general rule, but it must be subject to exceptions. It may be for the benefit of an infant to appoint an attorney or agent to sell his lands, but such an act would be clearly void. A conveyance, by the infant himself, of his lands, may be to his prejudice, and vet under certain circumstances the conveyance will be voidable only ; and there must be many cases where the act will be void, although it may be uncertain whether it will benefit or prejudice the infant. In Zouch v. Parsons, 3 Burr. 1794, Ld. ]\Ians- field sanctioned the rule laid down by Perkins that "all such gifts, grants or deeds made by infants, which do not take effect by delivery of his land, are void ; but all gifts, grants or deeds made by infants, by matter in deed or in writing which do take effect by delivery of his land are voidable, by himself, by his heirs and by those who have his estate." He remarked that the words "which do take ef- fect" were an essential part of the definition, and excluded letters of attorney, or deeds which delegate a mere power and convey no in- terest. A conveyance by lease and release executed by the infant was held to he voidable only, and that he could not avoid it until he ar- rived at full age. Although the case of Zouch v. Parsons has been questioned in England, it w^as approved by this court in Conroe v. Birdsall, i Johns. Cas. 127. It was decided in this case that the bond of an infant was not void, but was voidable only. A different rule was laid down by Ld. Coke, who says that an infant will not be bound by a penal obligation, even wdiere it is given for necessaries. Co. Litt., 172a; see, also, 4 T. R. 363, and Bayhs v. Dinley, 3 Maule & S. 477. In Swasey v. Vanderheyden, 10 Johns. R. 33, it was held that the negotiable note of an infant given for necessaries, and where that fact appeared upon the face of the instrument, was void. Whether this case and that of Conroe v. Birdsall stand well together need not now be considered. In relation to personal chattels, the rule seems to be that if an in- tant give or sell \ and deliver ther nd, the act is voidable or:t\ , lui: li he give or sell ^^ 'a •., aij lu uonee or \endee take them by force of the gift or sale, the act is void, and the iifant m; trespass, i i\Iod. 137; Bac. Abr., " ' ■ & Age, I . pi. 3. Jnction was recognized in Roof v. 7 Cow. ■■"g. The r.,i.iiit brought trover for a horse which he iiad sold to the 'efendiinr,. ::-\d the court held tn:'; ;';. -ale aas ^-.ot absolutely void, a the grcinid that he had ma the goods; and ■ = - ■ :■■■:. -..-.'■- that he Onn-... ....-i a^.-;i.a .lu. -.'- "^^-'^ •"' '^''me .1 was reversed in the court i ion ■J Low. ci'j. on ;' 1 .-,-,-■ . j^^^ X there had b'""^'- .el- who deliver. : of ■ by the ven>, r^e It; but in case of an mfant vendor there personal delivery. An infant cannot '^^ iitnrent would be void; and there beii ual . ry, the contract would seem to bt v im. ! • nf erred no right upon the vendee to take. 1 , of the infant to sell would not protect the vendee agaaiit I of trespass for taking the horse. The taking would be us. and in itself a conversion." In the case under considera- ne plaintiff 'did not deliver the property, and the <■'':' '^ • the was wholly without authority. The infant cou: ake orney or agent to do such an act. The pur^-^ -^uired e, and the plaintiff may at any time treat hini .-feasor he value of the property. T : d oii which the liaced the cause in their cha!., ■ jury is wholly ; and it is therefore unnecessary to inquire whether there her ground on which the plr.i'-.iirf ,;. n ^r-, r<>. iuiwi.k>. ;i .-.m.: ac- \ right to one of those animals, it must be on the ground ' a sale ' ' ' the father ; and before ■ y of the: L be passed upon by a in 11 rievei recover this anuiiai without making a pro'. ty to" contract. She has an undoubted right of a/ '1. iven to her by Gross, and if she may also recover tl :hange by her father, • • ■-'■'- 'vv— ^i.-^ii ■ o.,f;.-- 2— Reinhard Cases. e coAV, , the plai;,---.. same manner able onK .' ^ucce^^ 'lown tli> :t for tb; ,,, beV'^ ill: -.\ver we' rveyance wii ■'■"-" the ac 'icnefit c deliver ■lose wh' take ef letters o ;"»• no iri ;>ns has bee; >: ■.i!r;t:vvii rui will not he bonn Whethc PRINCIPAL. 17 fant give or sell his goods and deliver them with his own hand, the act is voidable only; but if he give or sell goods, and the donee or vendee take them by force of the gift or sale, the act is void, and the infant may bring trespass, i JNIod. 137; Bac. Abr., Infancy & Age, I, pi. 3. This distinction was recognized in Roof v. Stafford, 7 Cow. 179. The infant brought trover for a horse which he had sold to the defendant, and the court held that the sale was not absolutely void, on the ground that he had made manual delivery of the goods ; and being voidable only, that he could not avoid the sale until he came of age. This judgment was reversed in the court for the correction of errors, 9 Cow. 626, on the ground that it did not appear in point of fact that there had been a manual delivery of the horse. Chancel- lor Jones, who delivered the opinion of the court, said: "The fact of possession by the vendee would be evidence of a delivery in the case of an adult ; but in case of an infant vendor there should be strict proof of personal delivery. An infant cannot make an attorney. The appointment w^ould be void ; and there being no proof of actual manual delivery, the contract would seem to be void. The agree- ment to sell conferred no right upon the vendee to take. The mere agreement of the infant to sell would not protect the vendee against an action of trespass for taking the horse. The taking would be tortious, and in itself a conversion." In the case under considera- tion the plaintiff did not deliver the property, and the sale by the father was wholly without authority. The infant could not make an attorney or agent to do such an act. The purchaser acquired no title, and the plaintiff may at any time treat him as a tort-feasor and recover the value of the property. The ground on which the court below placed the cause in their charge to the jury is wholly untenable ; and it is therefore unnecessary to inquire whether there be any other ground on which the plaintiff can succeed as to the cow (and its offspring) purchased of Easterbrooks. The plaintiff has never ratified the sale made by her father, nor can that be done while she remains an infant. The court below placed her title upon the ground that the father, with her consent and as her agent, had made an exchange of one animal for another, and that this w'as a lawful act. But her consent conferred no authority, and the father could not act as her agent. She has her remedy for the unauthorized sale ; and that transaction can have no legal connection wdth the subsequent purchase of two cows from Easterbrooks. If she ac- quired any right to one of those animals, it must be on the ground either of a gift or a sale to her by the father ; and before she can recover, the validity of that act must be passed upon by a jury. But she can never recover this animal without making a profit by her in- capacity to contract. She has an undoubted right of action for the cow given to her by Gross, and if she may also recover the one given in exchange by her father, she may have double satisfaction, when 2 — Reinhard Cases. COMPETENCY OF PARTIES. in law there has been but one injury. It is, however, enough for the present that the court below erred in its charge to the jury.^ Judgment reversed. WHITNEY V. DUTCH. 1817. Supreme Court of Massachusetts. 14 Mass. 457. Assumpsit on a promissory note made by the defendants to the plaintiffs. The defendant, Dutch, was defaulted. Green, among other things, pleaded the defense of infancy, to which plaintiffs re- plied a ratification. Dutch and Green, as the evidence disclosed, were partners. The note in suit was signed by Dutch, using the firm name and style of the firm of Dutch and Green. It was contended at the trial and in the supreme court that Green never legally executed the note, it being void as to him. Dutch signed it for himself and for Green, but it was not in the power of Green to confer such authority ; that an infant cannot bind himself by appointing an attorney, or agent, such appointment being abso- lutely void and incapable of ratification. The opinion of the court was delivered by Parker, C. J. (After disposing of another question.) But the other point made in the defense is more difficult, and presents a question new to us all. This is, that the note, being signed by Dutch for Green, was void in regard to Green ; because he was not capable of communicating authority to Dutch to contract for him ; and that, being void, it is not the subject of a subsequent ratification. No such question appears to have occurred in our courts, nor in those of England, or of the neighboring states. Partnerships have not been uncommon between adults and infants ; and simple con- tracts, signed by one for both, undoubtedly have often been made. It is unfavorable to the principle contended for by the counsel for Green that no such case has been found ; for this silence of the books authorizes a presumption that no distinction has been recog- nized between acts of this kind done by the infant himself and those done for him by another. We must, however, examine the principles by which the contracts of infants are governed and see if, by any analog}^ to settled cases, the present defense can be maintained. It is admitted, generally, that a contract made by an infant, al- though not for necessaries, is only voidable ; and that an express adoption of it, after he comes of age, will make it valid from its date. ■Accord: Doe v. Roberts, 16 M. & W. 778; Trueblood v. Trueblood, 8 Ind. 195; Ware v. Cartledge, 24 Ala. 622. In Zouch V. Parsons, 3 Burr. 1794, Lord Mansfield said that an infant's power of attorney was void. See also Knox v. Flack, 22 Pa. St. 337. Vor does the h\v require that he sh ■s lite 3'' it is 'irp Oil are : Jie r?Ov.-cr : iiim, delega- void, unless it nis title to n J.K • . 1, - i iipt^vefn void aiul vn in the case.ot /_.nnch - m, whenever the act :' ■ . ...lant, ot be considered election^ >1iratton of this •'")n- :e frf^rr? ■'^if- ■lefit or to his p' ■ ■" ' " ■'?• of gOOd^., ...u: '^ vv . iC came of aee. had : )d by r. They ,'al sutx- •••■- -^- ■■'- ' '- .... .and it .1 capacity k- Mass. 457- iidants to th' ;ourt w: But 111 PRINCIPAL. 19 Nor does the law require that he shall be sued, as upon the new promise ; but sives life and validity to the old one, after it is thus assented to. But it is urged that this doctrine applies only to those contracts which are made by the infant personally ; and that the delegation of power by him to another of full age, to act for him, is utterly void ; and that no contract, made in virtue of such delega- tion, can subsist, so as to be made good by subsequent agreement or ratification. If we confine ourselves to the letter of the authorities, it would seem that this doctrine is correct ; for we find that, in the distinctions made in the books between the void and voidable acts of an infant, a power of attorney is generally selected, by way of example, as an act absolutely void, unless it be made to enable the attorney to do some act for the benefit of the infant, such as a power of attorney to receive seisin, in order to complete his title to an estate. The books are not very clear upon this subject. All of them admit a distinction between void and voidable acts ; and yet disagree with respect to the acts to be classed under either of those heads. One result, however, in which they all appear to agree is stated by Lord Mansfield in the case of Zouch v. Parsons, cited in the argument, viz., that whenever the act done may be for the benefit of the infant, it shall not be considered void ; but that he shall have his election, when he comes of age, to affirm or avoid it ; and this is the only clear and definite proposition which can be extracted from the au- thorities. The application of this principle is not, however, free from dif- ficulty ; for, when a note or other simple contract is made by an in- fant himself, it may be made good by his assent, without any inquiry whether it was for his benefit or to his prejudice. For, if he had made a bad bargain in a purchase of goods, and given his promis- sory note for the price, and, when he came of age, had agreed to pay the note, he would be bound by this agreement, although he might have been ruined by the purchase. Perhaps it may be assumed, as a principle, that all simple contracts by infants Avhich are not founded on an illegal consideration are strictly not void, but only voidable, and may be made good by ratification. They remain a legal sub- stratum for a future assent, until avoided by the infant ; and if, instead of avoiding, he confirm them, when he has a legal capacity to make a contract, they are in all respects like contracts made by adults. With respect to contracts under seal also, they are in legal force as contracts until they are avoided by plea. Whether they can, in all cases, as it is clear they can in some, such as leases, be ratified, so as to prevent the operation of a plea of infancy, except by deed, need not now be decided. A deed of land by an infant having the title would undoubtedly convey a seisin ; and the grantee would hold his 20 COMPETENCY OF PARTIES. title under it, until the infant, or some one under him, should by entry or action avoid it. Perhaps it cannot be contended, against the current of authorities, that an act done by another for an infant, which act must necessarily be done by letter of attorney under seal, is not absolutely void ; al- though no satisfactory reason can be assigned for such a position. But as this is a point of strict law, somewhat incongruous with the general rules affecting the contracts of infants, it is not necessary nor reasonable to draw inferences which may be repugnant to the principles of justice, which ought to regulate contracts between man and man. The object of the law in disabling infants from binding them- selves is to prevent their being imposed upon and injured by the crafty and designing. This object is in no degree frustrated by giv- ing full operation to their contracts if, after having revised them at mature age, they shall voluntarily and deliberately ratify and con- firm them. It is enough that they may shake off promises, and other contracts, made upon valuable consideration, if they see fit to do it, when called upon to perform them. To give them still another op- portunity to retract, after they have been induced, by love of justice and a sense of reputation, to make valid what was before defective, will be to invite them to break their word and violate their engage- ments. If it be true that all simple contracts made by infants are only voidable, the inquiry in this case should be, whether the facts stated furnish an exception to this general rule ; or whether the contract now sued is in any sense different from a simple contract. The only ground for the supposed exception is, that the note declared on was not signed by the infant himself, but by Dutch, claiming authority to sign his name as a copartner. If the authority required a letter of attorney under seal, the exception would be sup- ported by the authorities which have been alluded to. But it is well known that copartners may, and generally do, under- take to bind each other, without any express authority whatever. Indeed, the authority to do so results from the nature and legal qualities of copartnership. And without any such union of interests, one man may have authority to bind another by note or bill of ex- change, by oral, or even by implied authority. The case of a deed, therefore, is entirely out of the question ; so that the defendant does not bring himself within the letter of the authorities, and certainly not within the reason on which they are founded. Then, upon prin- ciple, what dift'erence can there be between the ratification of a con- tract made by the infant himself and one made by another acting under a parol authority from him? And why may not the ratifica- tion apply to the authority as well as to the contract made under it ? It may be said that minors may be exposed, if they may delegate power over their property or credit to another. But they will be as PRINCIPAL. iiower to make such contracts themselves, and ated will generally h . . And it is a sufficien. Ltiest: sources that infants cannot \k •!ic 'n neither case b^^f'i'ir. i.r- -. v-oluntarily v ..• .1.!.;.. . >.iid in such CciD. j.,-!.- pelled to perform them, we are -t no Dr . nee the -.:1 : . . : red Ifect to are op- AIOTT V. SMITH. "REME Court of California. t6 C?A. 'z^- . iie deeds purporting to be ..-, .. .,, ,._ ,,.,.__, : alleged power, were upon their face mere nullities. A voman cannot invest another with a power to sell any in- ach she may possess in real estate, in the absence of any ■ effect, ' " is no such statute in this state. To a convi. a marriP'l won-irri. it is essential that her husband m its ;te, on a private : the time, separ.it e . _ Am, and without .<^, that she executed t" ireely, without fear of him or n, or ur;'^ - -"^"ence /; -iu ; ui, and that she does not wish ; its exe. : his private examination — this determina- " ■" ' -are not matters er onlv r.vthor- nce iron' •e, carry ■. ,. ._•...- ,., V. Wertheman, lo ( rson or wife ever ] ;e lands covered by i i.ollarhide, 24 Cal- T95 ; The con- .i:.v " •' ite cont; still another op •K"^^ v.liiicl*d<- the not iii by P;'^ '^c autti I be sup ics, arid certain] . rhen, upon prin ucation of a con- ?V will be a PRINCIPAL. 2i much exposed by the power to make such contracts themselves, and more, for the person delegated will generally have more experience in business than the minor. And it is a sufficient security against the danger from both these sources that infants cannot be prejudiced; for the contracts are in neither case binding, unless, when arrived at legal competency, they voluntarily and deliberately give effect to the contract so made. And in such case justice requires that they should be compelled to perform them. Upon these principles, we are satisfied with the verdict of the jury, and are confident that no principles of law or justice are op- posed by confirming it. Judgment on the verdict.^ MOTT V. SMITH. i860. Supreme Court of California. 16 Cal. 534. Field, C. J. — The deeds purporting to be executed by the witness, under the alleged power, were upon their face mere nullities. A married woman cannot invest another wath a power to sell any in- terest which she may possess in real estate, in the absence of any statute to that effect, and there is no such statute in this state. To the efficacy of a conveyance by a married woman, it is essential that she join with her husband in its execution, and state, on a private examination at the time, separate and apart from him, and without his hearing, that she executed the same freely, without fear of him or compulsion, or under influence from him, and that she does not wish to retract its execution. This private examination — this determina- tion of the will as to the retraction of the execution — are not matters which can be delegated to another. Besides, the power only author- izes a sale, that is, a transfer for a valuable consideration, which was evidently intended to be a moneyed consideration. It does not au- thorize a conveyance from motives of love and affection. The con- veyances, therefore, carry on their face the evidence of their own nullity. (Dupont v. Wertheman, 10 Cal. 355.) Again, it does not appear that Patterson or wife ever possessed or claimed any in- terest in any of the lands covered by the grant to Gutieras, or the ^Accord: Hastings v. Dollarhide, 24 Cal. 195; Hardy v. Waters, 38 Me. 450. "But this last-named case [Hardy v. Waters] was, we think, correctly de- cided, and it stamps as inaccurate and unsound all dicta or decisions (if such there be) which hold all acts done and contracts executed by an infant through the intervention of an agent void, and on the contrary relegates the appointment of agents (for certain purposes at least) by them to the class of voidable contracts to be disposed of by the rules applicable to that class." Barrows, J., in Towle v. Dresser, 73 Me. 252, 257. See discussion of Coursolle v. Weyerhauser, 69 Minn. 328, holding that an infant's appointment of agent is voidable, in 11 Harv. Law Rev. 340. 2.2 COMPETENCY OF PARTIES. patent to Johnson, or had any such land in contemplation when the power was executed. The title by which the plaintiffs claim in the present action is independent of any conveyances from them. If they ever, in fact, possessed any interest in the premises, they still retain it against any possible interference with their rights from the action of their attorney, as disclosed by the conveyances in ques- tion. ^ * * * KENTON INSURANCE COMPANY v. McCLELLAN. 1880. Supreme Court of Michigan. 43 Mich. 564. Assumpsit. Plaintiff brings error. Campbell, J. — Plaintiff sued defendant, who is a married woman, upon a promissory note made by her and payable to the order of plaintiff for $290.42, dated September 4, 1877, and payable at nine months. She defends on the ground that the note was not given on such a consideration as binds her. A preliminary objection that this defense was waived by failure to file affidavit under rule 79 has no force. Defendant does not dispute the execution of the note. Her defense is want of capacity to make it, except on a particular consideration. It has been held tmiformly by this court that our statutes do not authorize a married woman to become personally liable on an execu- tory promise except concerning her separate estate. A note given for any other consideration is void. De Vries v. Conklin, 22 Mich. 255 ; West V. Laraway, 28 Mich. 464 ; Emery v. Lord, 26 Mich. 431 ; Ross V. Walker, 31 Mich. 120; Jenne v. Marble, 37 Mich. 319; Kitchell v. Mudgetl, 37 Mich. 81 ; Carley v. Fox, 38 Mich. 387 ; John- son V. Sutherland, 39 Mich. 579 ; Russel v. People's Savings Bank, 39 Mich. 671 ; Gants v. Toles, 40 Mich. 725. It has also been settled that there is never any presumption of va- lidity of such an undertaking, whether negotiable or not, and that proof must always be given of such a consideration as will bind her. We think that the rule must apply whether value received is ex- pressed or not, because the power is not general but statutory, and cannot be extended beyond the constitutional and statutory limits. See Powers v. Russel, 26 Mich. 179; Emery v. Lord, 26 Mich. 431 ; West V. Laraway, 28 Mich. 464; Johnson v. Sutherland, 39 Mich. 579- It was held in the latter case that a hona Ude holder was no better off than any one else, as against the disability of coverture. But, in- asmuch as plaintiff here is the original payee, it is not a hona fide holder. Rickle v. Dow, 39 Mich. 91. ^A portion of the opinion is omitted. RINCIPAL. ^i ment t. without con* that this note was -'■I August i. ... ... .. to use as security for Kuenzel, in whicli he was a partner. plaintii^'" " - • — • ' '- ' ~ ' '■' \ at from - jOu's iian .:. wunian cannot give tu ii: r which she -ess herself, and ciir-.-! -ny agents i bnad her except C( ■< ns deal- them must inquire ii; •■ . ... ^ |. > .^ , >. ■ nt case ) evidence tending to sh')w that any si s made, it acted in rehan. ♦^be facts. The n and the plain ciii . is no evidence of an o have been made on the credit of defendant. • .1^ ..M-^• ,-.!■ -^-. .^.:w,,,,..,.,.f .y-u-rA. i,-w| glrcadv not ap- rii:h.;c ai ':n■^ imic, :r ii n as iiiride at all, lat anv earlier harcyain or negotiation was inc. ;jav_ ■ is no p i'y or ostci;-:.iL>U :he case was : ' ■> he court pri dgment musi ... ...... !)er justices concurre ■- of action was made ^cted a verdict for defendant. I '1 VI' "".1 O'lCi Q PORTEl: iiie de- i.L, C. J. — K rense of a su;: •and, involving her : . in the abstract, is whether :■ 'licitors, "■'' and v as ' lavi .vaLe leal cMace. '•r no doubt that if propt. . her sen.:,: her the beneficial owner of an equitah' .; Duer (N. Y the ii the m them. If ;es, they still rights from nces in ques- CLELLAN. iOi given on -to ■\itc .i.All. " ivlich. 319; a. 387;John- ivings Bank, ex- and -.its. ........ 431; :nd, 39 Mich. iff was no better •re. Biit, in- : a botm fide PRINCIPAL, 23 The evidence showed without contradiction that this note was given by defendant to her son, iVugust Kuenzel, to use as security for a debt of a firm of Wright & Kuenzel, in which he was a partner. That he gave it to one Jackson, plaintiff's agent, and took back from him an assignment to defendant from plaintiff of that debt, which had already been executed by plaintiff and was in Jackson's hands. Defendant never knew of this and never authorized it. A married woman cannot give to an agent any power which she does not possess herself, and cannot, therefore, appoint any agents that could bind her except concerning her property. Persons deal- ing with them must inquire into their powers. In the present case there is no evidence tending to show that any such inquiry was made, or that plaintiff or its agent acted in reliance upon any supposed au- thority, or in ignorance of the facts. The record is not inconsistent with the possibility that Jackson and the plaintiff made the assign- ment as a mere sham. There is no evidence of any bargain for an assignment supposed to have been made on the credit of defendant. All that appears is a delivery of an assignment which had already been executed, in exchange for defendant's paper. It does not ap- pear that the bargain was made at this time, if it was made at all, and there is no pretense that any earlier bargain or negotiation was made really or ostensibly on defendant's behalf. When the case was closed, therefore, no cause of action was made out, and the court properly directed a verdict for defendant. The judgment must be affirmed with costs. The other justices concurred.^ PORTER V. HALEY and STONE. 1877. Supreme Court of Mississippi. 55 ]\Iiss. 66. Action for services. The plaintiff has judgment below. The de- fendant brings error. SiMRALL, C. J. — Haley & Stone rendered the services as solicitors, in the defense of a suit in chancery, brought against Mrs. Porter and her husband, involving her right to real estate claimed by her as separate property. So that the question, in the abstract, is whether a married woman (who owns a separate estate, as is agreed) can contract to pay a so- licitor compensation for the defense of a suit brought to affect her rights to separate real estate. There can be no doubt that if property is settled to her separate use, so as to constitute her the beneficial owner of an equitable estate, ^ See Phillips v. Burr, 4 Duer (N. Y.) 113. 24 COMPETENCY OF PARTIES. she could charge that estate with such HabiHty, enforceable against it in a court of equity. But it is argued that the property attempted to be subjected in this suit was a statutory, legal estate, and that the power of Mrs. Porter over it, and her capacity to bind it, was gov- erned altogether by the statute — that we must look alone to it for her authority to make the contract. The premise is undoubtedly cor- rect. The statute, section 1778, of the Code of 1871, continues to a woman, after marriage, every species and description of property owned at the time of the marriage, as her separate estate. So, also, acquisitions after marriage, including the fruits of her personal service. And money recovered for damages to her person shall con- stitute personal estate. By section 1779, the rents, issues and income of the separate estate shall accrue and inure to the wife, and shall not be taken for the husband's debts. Section 1780 allows the wife to rent her land, make contracts for the use thereof, loan her money, take securities therefor in her own name, and employ it in trade or business. It would be vain and nugatory to confer these large property in- terests and rights on married women, and deny them free access to the courts for their assertion and defense. If a wife may take to her- self damages recovered for a personal injury, the law does not intend that her property may be despoiled and no compensation enforced against the wrong-doer. If she is disseized of her land, may she not employ the usual and necessary aids allowed other land-owners to regain possession, and recover damages equivalent to the rents and profits of which she has been deprived ? It is admitted that express authority is not given by statute to em- ploy counsel and engage to pay fees, but she may sue, alone or jointly with her husband, "for the recovery of her property or rights ;" and she may be sued "on all contracts, or other matters, for which her individual property is liable." Code 1871, § 1783. She may execute a bond necessary in any proceeding, either at law or in equity, to establish or enforce her rights, and the same shall be binding, etc. Code 1871, § 1781. She may contract for work and labor for the use and benefit or im- provement of her separate estate. Code 1871, § 1780. This legislation implies that the courts shall be open to the wife to sue both for the recovery of her property or "rights." The principal power carries with it all incidents necessary to its efficiency. So she may be sued on her contracts, and other matters ; the power to de- fend a suit is necessarily implied. It would be folly to say that she could not consult and employ counsel, if it were usual, proper and necessary. Since she may be impleaded in the courts in matters afifecting her separate estate, she must be esteemed competent to avail of all the aids and facilities open to suitors generally. If she may loan her FRTXCTPAI 25 jiirities therefor, without further provision of law, rhe note or bond, or foreclose th< \ge, and ittorney, and contract to pay for • ::.c. By she may make any bond inciden' vA proceed- [ in New York, in Freeking- ..ucr a statute alloM-i'^" ■ -^ • -.:, > 11 sines s, etc., the po incidental tr ' 'arb. ?26; O lilu.strates the class. There the etfc I for attorney's fees to prosecute as...; ... ' ; act fell under the common-law rule, and was n^ ite. It had no relation to the separate estate IS of the wife, judgment affirmed.^ N. Y, hold 422- •v on any - to her lams V. several 50 Ind. the wife --:h a die \\'(~^"DT^ f :\ \: ^T?Tr'f7 I':>05. C^LTKEME '^OURT Or iLLI>;01S. 47 . ■ h :. from circuit court of McLean county. The faci I ubstantially set forth in the opinion of the court. ]\1k. h .STICE Lawrence delivered the opinion of the court. Tl ■ :>^ -'trial of the right of property, in which Mrs. Henrietta /•ed the ownership of about seventy hogs, levied upon x. LUtion against her husband. She testif' ' ' ' '"ler hus- >.er gave her, in t866, different sums, am in all to oiece of land, which she sold at $800, •: er hus- for a year acting as her agent, in bu} i iiipping .stock, with this money. The partner of Mr. Price was !•- a witnes.s, and be testified that he and Price formed a r dealing in grain and stock in November, 1866; that ng of ]\lrs. Price in the business, and was not in part- er : that the firm sometimes did business to the amount k; that they made money, and that he did • cntTie from that Price put into the hii<^i ■ 4 before the hogs in cor.: !d a part of them to Pri-. , V.'l.ar. fVn^ .^o?. it was held that a warr her husband, for t' ^4 ich liability, enfi argued that the pn ji ;iLLH'iripted i J 1 u u stiit was a statutory, leg-al estate, and that the and her cai' vas gov- e — that we to it for lake the contract. The premise is undoubtedly cor- 78, of the Code of 1S71, continues to a .iiu^'.. every species anH '''■-"--■ •'•tw,,-, n.-i- . r. .,.,., ^,- : of the marriaee. as her jjy scciiOL shall accrue be taken for the husband's debts, rent her land, make contr^'^f- fr.r take securities therefor iri bu^iv - li !id nusfa rc.its, i to the V. Section 1780 a I tl-.,- M.p thereof, i^,.:. .... -. . .nd employ it in trade < r ! these larg^e property in- 'ree access to t'lke tA her- to au( recovered fo .(■!■' \ VYAX be , . - Of. If she IS d ucii sivi i:as been l\ :'^d that express autb p!o\ i:< li ; ngage to pay fei' ^\'ilh !ioi i, "for the recover she may be sued "on all contract- individual property is liable." Co'i.. a bond necessary in any proceeding', '' ' 'nforce her rights, an' ' T781. n it all incidents aii'j enipJL'v coi. f her land, -d other '^^ livalent '\v- statute to em- ■r jointlv '=:" and i'ivjirig', etc. .'iC and benefit or ivr)- > 1780. . ill be open to ^he wife to "ricliK " The principal ncy. So she > . uiiij power to de- folly to say that she isual, proper and •.'rs affecting her ' avail of all the le may loan her PRINCIPAL. 25 money and take securities therefor, without further provision of law, she could sue on the note or bond, or foreclose the mortgage, and could engage an attorney, and contract to pay for that service. By express statute, she may make any bond incident to judicial proceed- ings. It was held in New York, in Freeking v. Bolland, 53 N. Y. 422- 425, that under a statute allowing a married woman to carry on any trade or business, etc., the power to make contracts relating to her business was incidental to her power of conducting it. Adams v. Nonness, 12 Barb. 326; Chapman v. Foster, 6 Allen 136. We have been referred, by counsel for the appellant, to several cases supposed to sustain his view. Putnam v. Tennyson, 50 Ind. 459, illustrates the class. There the effort was to hold the wife bound for attorney's fees to prosecute a suit for divorce. Such a contract fell under the common-law rule, and was not affected by the statute. It had no relation to the separate estate or property in- terests of the wife. Judgment affirmed.^ WORT^IAN V. PRICE. 1868. Supreme Court of Illixois. 47 111. 22. Appeal from circuit court of ]\IcLean county. The facts in the case are substantially set forth in the opinion of the court. Mr. Justice Law^rence delivered the opinion of the court. This was a trial of the right of property, in which j\Irs. Henrietta C. Price claimed the ownership of about seventy hogs, levied upon under an execution against her husband. She testified that her hus- band's father gave her, in 1866, different sums, amounting in all to $2,960, and a piece of land, which she sold at $800, and that her hus- band had been for a year acting as her agent, in buying and shipping grain and stock, with this money. The partner of ]\Ir. Price was produced as a witness, and he testified that he and Price formed a partnership for dealing in grain and stock in November, 1866; that he knew nothing of Airs. Price in the business, and was not in part- nership with her ; that the firm sometimes did business to the amount of $4,000 or $5,000 per week ; that they made money, and that he did not know where the money came from that Price put into the busi- ness. The partnership was dissolved before the hogs in controversy had been levied on, and he had sold a part of them to Price. The ^In Dorrance v. Scott, 3 Whar. (Pa.) 308, it was held that a warrant of at- torney given by a married woman, joined by her husband, for the sale of her separate estate, was void. In Vail V. Meyer, 71 Ind. 159, it was held that a married woman may con- tract, through an agent, for the improvement of her property. 26 COMPETENCY OF PARTIES. case was submitted to the court, without a jury, and on this state of facts, the finding and judgment were for the claimant of the property. We think the finding was erroneous. It is urged that although such' an arrangement could not have been sustained prior to the law of i86i, known as the married woman's act, it is legalized by that law. Under that law, the husband can undoubtedly act as the agent of his wife, for the purpose of managing her separate property, but it must be an actual and bona fide agency, and not an arrange- ment by which, under color of an agency kept concealed from the public, the husband is to enter into trade with capital furnished by the wife, carry on business in his own name, precisely as he would do with his own money, and then claim, as against creditors, that all the property bought and sold by him in the course of his business, is the property of his wife. In the case before us, it does not appear that there was any arrangement between the husband and wife for his compensation, although he devoted all his time and energy to the business which he claims to have been conducting as her agent. The profits of this business arose in part from the capital employed and in part from his time and skill, yet there was no arrangement as to their division. Although the act of 1861 authorizes the wife to hold personal property, and under that law she may employ her hus- band as agent to manage it, yet it does not authorize her to receive, to the exclusion of creditors, the entire fruits of his time, skill and industry, and it must not be so construed as to invite fraud. This transaction can only be regarded, so far as concerns creditors, as a loan of the wife's money to her husband, by means of which he engaged in trade. Such would have been its character if the money had come from a third person, and it must be so regarded as between the husband and wife. It has been decided in other states having a married woman's law, similar, in most respects, to our own, that the wife cannot, by virtue of this law, engage in trade. Freeman v. Aeser, 5 Duer 476 ; Sherman v. Elder, 24 N. Y. 383 ; Wooster v. Northrup, 5 Wis. 245; Glover v. Alcott, 11 Mich. 471; Gage v. Dauchy, 28 Barb. 622; Keeney v. Good, 21 Pa. St. 349; Hallowell v. Horter, 35 Pa. St. 375. Whether she can do so in her own name, and manage the business herself, without the aid or interference of her husband, is a question not involved in the present case, and one we do not decide. But we have no hesitation in saying that if she ad- vances capital to her husband, with which he engages in trade, such capital and its fruits in the business will be subject to the husband's debts, even though he may claim to be acting as his wife's agent, and doing business in her name. A different rule would lead to the gross- est fraud. What was said in Brownell v. Dixon, 37 111. 197, in re- gard to the power of the husband to act as agent for his wife, simply means that he may act as her agent for a particular transac- tion, or generally, for the control of her property or the invest- PRINCIPAL. 2'J e rents, or ciiange tlic ciiaraclt^r ol iicr uts, and he n-iny do this with'"nt -iV '■'er !Ls. But we ^ay, nor r- at she could ,1 her ;. ;e 'e, to be managed b) -.ne be devr^''-''' ', ^'^ ' •''■ ^ ■...■u.aii—.i in profits. ch of his cred- ^ ■ ' , c luaifn]-:':!: ;ixii DEXT: RKME Court of the United States. 8i :-A nmr 1 cit^^..,, fr.T the District Ji) (ji cj;j:';^ifi)L cl:;!ju;i,ju-':'. 1 in cic court below by ror. to recover a certain lot of land in the citv of -. below ■ ; up a p. to one James W. Harris, substituti' 01 ■\%, and mesne conveyances from R'-"'^ '1 ■ tifis gave evidence to show the 1 - 'cuted the power of attorney i.» rai! ': on the statute of limitations. The wi .;' tcu m me as disn 'are l/- ;, T. — T whether a nly or ^rson, bcmg ot unsound mmd, is incapable of executing V '1-^ "^ power of attorney, or other instn^^ -^•'' '' -''■ -standing, and that a power of C' v^r-on, or one of unsound n the defendant below v- ri Northwestern R . .' of r to the ■ ] by the \> 1 1., lit as wife to ■ . . hus- , ^;ive, kill and incy ;.KMween iiavinef a ;■ V. :" -..^^v; V. . ' lowell V. '■■■■■ and her we ad- :>le, such I nsband's 's agent, and to the gross- li. 197, in re- 'or his wife, liar transac- : the invest- PRINCIPAL. 27 ment of her funds. He may lease her property and collect the rents, or invest her money, or change the character of her investments, if authorized by her, and he may do this without subjecting her property to his debts. But we did not say, nor expect to be under- stood as saying, that she could make him her agent, for the purpose of engaging in trade, to be managed by him, and to which all his time and energy might be devoted, and that the property embarked in such trade, and its profits, would be beyond the reach of his cred- itors. Such is not the law. The judgment must be reversed. Judgment reversed.^ DEXTER V. HALL. 1872. Supreme Court of the United States. 82 U. S. 9. In error to the Circuit Court of the United States for the District of California. This was an action of ejectment commenced in the court below by the defendant in error, to recover a certain lot of land in the city of San Francisco. The plaintiffs below claimed as the heirs of one John Hall. The defendants set up a power of attorney executed by the said Hall to one James W. Harris, substitution by Harris of David B. Rising, and mesne conveyances from Rising. To avoid this title, the plaintiffs gave evidence to show the insanity of John Hall at the time he executed the power of attorney to Harris. The de- fendants also relied on the statute of limitations. The widow of John Hall, who was one of the original plaintiffs, died during the pendency of the suit, and it is now prosecuted by the children alone. Judgment was rendered in the court below for the plaintiffs. All the defend- ants, except Dexter, paid the heirs for their respective titles, and the suit was dismissed as to them. Dexter sued out this writ of error, relying upon exceptions to the charge of the judge, and also to the admission and refusal of certain evidence. The nature of these exceptions appears in the opinion. Strong, J. — The prominent question in this case is, whether a power of attorney executed by a lunatic is void, or whether it is only voidable. The circuit court instructed the jury that a lunatic or insane person, being of unsound mind, is incapable of executing a contract, deed, power of attorney, or other instrument requiring volition and understanding, and that a pov/er of attorney executed by an insane person, or one of unsound mind, is absolutely void. To this instruction the defendant below excepted, and he has now as- signed it for error. ^Accord: Weisbrod v. Chicago & Northwestern Ry. Co., 18 Wis. 35. See also Paine v. Farr, 118 Mass. 74. 28 COMPETENCY OF PARTIES. Looking at the subject in the Hght of reason, it is difficult to per- ceive how one incapable of understanding and of acting in the ordi- nary affairs of life, can make an instrument, the efficacy of which con- sists in the fact that it expresses his intention, or more properly his mental conclusions. The fundamental idea of a contract is that it re- quires the assent of two. minds. But a lunatic, or a person non compos mentis, has nothing which the law recognizes as a mind, and it would seem, therefore, upon principle, that he cannot make a contract which may have any efficacy as such. He is not amenable to the criminal laws, because he is incapable of discriminating between that which is right and that which is wrong. The government does not hold him responsible for acts injurious to itself. Why, then, should one who has obtained from him that which purports to be a contract be permitted to hold him bound by its provisions, even until he may choose to avoid it? If this may be, efficacy is given to a form to which there has been no mental assent. A contract is made without an agreement of minds. And as it plainly requires the possession and exercise of reason quite as much to avoid a contract as to make it, the contract of a person without mind has the same effect as it would have had he been in full possession of ordinary under- standing. While he continues insane he cannot avoid it ; and if, therefore, it is operative until avoided, the law affords a hmatic no protection against himself. Yet a lunatic, equally with an infant, is confessedly under the protection of courts of law as well as courts of equity. The contracts of the latter, it is true, are generally held to be only voidable (his power of attorney being an exception). Unlike a lunatic, he is not destitute of reason. He has a mind, but it is immature, insufficient to justify his assuming a binding obliga- tion. And he may deny or avoid his contract at any time, either dur- ing his minority or after he comes of age. This is for him a suffi- cient protection. But as a lunatic cannot avoid a contract, for want of mental capacity, he has no protection if his contract is only void- able. It must be admitted, however, that there are decisions which have treated deeds and conveyances of idiots and lunatics as merely void- able, and not void. In Beverly's Case, 4 Co. 123, b, which was a bill for relief against a bond made by Snow, a lunatic, it was resolved that every deed, feoffment or grant, which any man "non compos mentis'' makes, is avoidable, and yet shall not be avoided by himself, because it is a maxim of law that no man of full age shall be, in any plea to be pleaded by him, received by the law to stultify himself and disable his own person. A second reason given for the rule was, "because when he recovers his memory he cannot know what he did when he was non compos mentis." Neither of these reasons are now accepted, and the maxim no longer exists. There were other things ruled in Beverly's case, among which w^ere these : That the disability of a lunatic is personal, extending only to the party him- PRINCIPAL, :lf. except tbat it eKtead.s to privies in. tenure, as Ion! te, as tenant in tail; but '' .1 representation, as exe^ >:■ ■■ I siiow the disability of the ancesto.r, or tes^ : also r< Late. It !L avoid- remarked -'te made mentis, age, he not es- al- all m such -ed that acts done I Lord Coke : .< o.i.u..= there is -^ ■• ■ and by attorney a leoffment in fee in [k rson, ai: i gk. lOt be in ward, or if he dies without 1 .. : ; * * * but if the '' ''" h the feoffor shall n-- , in judgment of law, the estate i. , if his heir is within age, he shall be . . , . -it heir, the land shall escheat." Such, also, is the rule ■ itz Herbert's Nat. Bre., 202, c. This is plainly a recoguiii--: : "incinle that the letter of attorney of an idiot or lunatic . may not be permitted himself to assert its nullity, riis r?!l others may. The doctrine i? ;0?o -^'^^crted rh-'.': as rs of a lunatic his deed is in jilc, 'ily maintained in England, in Ihompsou v. Leach, repotted in Carthc 68, and in '^omberbach 211, 235, a clear distinction was i.u-./:j i)etween the . ?.offment of a lunatic taking effect by livery of seisin and his deed of id sale, 1 ' .der^ind grant. The " ' ' to ■' only, ' f the solemnit id to be ■ 'le case . and til- lling ' ible, or whether it v. ic upon which were u^ a deed of surrender. ot : . I'At aieuc, brought by a l; :3 whether his deed ;tely void. The ^liLWii contingent renu.,... ..1. . If his deed was at any time d, it merged the tenancy for ndr>rs, nn>l though the deed be aVOjav,u by aiiy ■. , yet the con- , being once extinct, revived bv -nv facto, h was necessary, tncretore, to d(. A ^^■-•: r, m-.;!';!, ,.i- a. nr rlif-r it WaS gOOd UUtll a.....>- >id, ab initio, because of i' .a difference between a s of an infant, and the n, and m which the iormaiity i to per ;he ordi- !iich con- ; jjroperl}' his is that it re- 'i non CO- and it -••. Lween ti ;ie effect V under- and il. : no .nyf a bi jict, tor iS en Ay ;i age shall be, in 1. <(> ^tl'tl■^^• I-ii- tiie party hitn- PRINCIPAL. 29 self, except that it extends to privies in tenure, as lord by escheat, and privies in estate, as tenant in tail ; but that privies in blood, as heirs, or privies in representation, as executors or administrators, might show the disability of the ancestor, or testator, or intestate. It was also resolved that acts done in a court of record were not avoid- able even in equity. Lord Coke, in commenting on the case, remarked that "As to others there is a great difference between an estate made in person and by attorney ; for if an idiot, or non compos mentis^ makes a feoffment in fee in person, and dies, his heir within age, he shall not be in ward, or if he dies without heir the land shall not es- cheat ; * * * but if the feoffment is made by letter of attorney, al- though the feoffor shall never avoid it, yet after his death, as to all others, in judgment of law, the estate is void, and, therefore, in such case, if his heir is within age, he shall be in ward ; or, if he dies with- out heir, the land shall escheat." Such, also, is the rule as stated in Fitz Herbert's Nat. Bre., 202, c. This is plainly a recognition of the principle that the letter of attorney of an idiot or lunatic is void, though he may not be permitted himself to assert its nullity. His heirs and all others may. The doctrine is also asserted that as against the heirs of a lunatic his deed is invalid, and this, we think, has been steadily maintained in England. In Thompson v. Leach, reported in Carthew 438, 468, and in Comberbach 211, 235, a clear distinction was taken between the feoffment of a lunatic taking effect by livery of seisin and his deed of bargain and sale, his surrender and grant. The former was held to be voidable only, because of the solemnity of the livery, while the latter were held to be void. The case was ejectment, brought by a lunatic's heirs, and the controlling question was Vv-hether his deed was only voidable, or whether it was absolutely void. The grantor had a life estate upon which were dependent contingent remainders, and he made a deed of surrender. If his deed was at any time effective before the contingency happened, it merged the tenancy for life, and destroyed the contingent remainders, and though the deed might afterwards be avoided by any means in law, yet the con- tingent remainders, being once extinct, could not be revived by any matter ex post facto. It was necessary, therefore, to determine whether the deed was a nullity or whether it was good until avoided. The court resolved that the deed was void, ab initio, because of the grantor's lunacy. It was said that "there is a difference between a feoffment and livery made propriis manibus of an infant, and the bare execution of a deed by sealing and delivery thereof, as in cases of grants, surrenders, releases, etc., which have their strength only by executing them, and in which the formality of livery of seisin is not so much regarded in the law, and, therefore, the feoff- ment is not void, but voidable ; but surrenders, grants, etc., of an idiot are void ab initio." The case is a leading one, and it is in some respects more fully reported in 3 Salk. 300. There it appears 30 COMPETENCY OF PARTIES. not only that the distinction mentioned is recognized, but that Holt, Ch. ]., declared the deed of a person non compos mentis to be void ; that if he grants a rent, and the grantee distrains for arrears, he may bring trespass ; that his letter of attorney or his bond are void, be- cause, as he stated, the law had appointed no act to be done for avoiding them. 2 Vent. 198. Thompson v. Leach has never been disturbed, and, so far as we know, has never been doubted. It was followed by the case of Yates v. Boen, in 2 Strange 1104, which was an action of debt upon articles. The defendant pleaded "non est factum/' and offered to give lunacy in evidence. Upon the au- thority of Thompson v. Leach and Smith v. Carr, decided in 1728, the evidence was received. The doctrine of Thompson v. Leach was asserted also in Ball v. Mannin, i Dow & Clark 380, decided in the House of Lords in 1829. In that case the sole question presented was, by agreement of coun- sel, whether the deed of a person noji compos mentis was invalid at law. In the inferior court the judge had charged the jury that "to constitute such unsoundness of mind as should avoid a deed at law, the person executing such deed must be incapable of understanding and acting in the ordinary affairs of life," and refused to charge that the unsoundness of mind must amount to idiocy. The ruling was sustained by the Court of King's Bench in Ireland and, on writ of error, by the Exchequer Chamber. The case was then removed to the House of Lords and the judgment was affirmed. It is, therefore, the settled law of England, and it has been since the decision in Thompson v. Leach, that while the feoffment of an idiot or lunatic is only voidable, his deed, and especially his power of attorney, are wholly void. And now, by act of parliament, 7 and 8 Vict., ch. 76, § 7, his conveyance by feoffment, or other assurance, is placed on the same footing with his release or grant. Sir William Blackstone, it is true, appears to have overlooked the distinction made in Thompson v. Leach ; and in his Commentaries (Book 2, p. 291), while admitting that the law was otherwise prior to the reign of Henry VI, asserted the doctrine that the conveyances of idiots and persons of non-sane memory, as well as of infants and persons under duress, are voidable, but not actually void. But Sir Edward Sugden (i Sugd. Powers 179; Shelf. Lunatics 257-259) notices this statement with disapproval. His remarks are as follows : "When Beverly's case was decided it was holden that deeds executed by lunatics were voidable only, but not actually void, and therefore they could only be set aside by special pleading, and by the rule of law the party could not stultify himself. And Mr. Justice Black- stone, following the old rule, has laid down that deeds of lunatics are avoidable only, and not actually void. But in Thompson v. Leach the distinction was solemnly established that feoffment with livery of seisin of a lunatic, because of the solemnitv of the livery, was voidable only ; but that a bargain and sale, or surrender, etc., was actually W'he: I'lce, or : ihat noil ■ight be he given In thi- there has been : rule e>. , 24y. So ic iian be.i. :les •nee execute to third parties, ai'. ■rd.nvjv r l>f> en for the verv v 'he law in the of iiat nd the letter of I '■'" V Ml.t . , he mav : .It i-lW standint'^ .■iaccd on nd therefoi", ^..'i by the ru!c ir. Justice Black actually PRINCIPAL. 31 void. This, therefore, was the ground of the decision in Yates v. Boen. When the chief justice remembered that an innocent con- veyance, or a deed, by a lunatic, was merely void, he instantly said that non est factum might be pleaded to it and the special matter be given in evidence." In this country there has been inconsistency of decision. Some courts have followed Mr. Justice Blackstone and Beverly's case, without noticing the distinction made in Leach v. Thompson, Yates V. Boen, and other English cases. Such are the decisions cited from New York, beginning with Jackson v. Gumaer, 2 Cow. 552, and those relied upon made in other states. Nowhere, however, is it held that the power of attorney of a lunatic, or any deed of his which delegates authority but conveys no interest, is not wholly void. And in Pennsylvania, in the Estate of Sarah De Silver, 5 Rawle in, it was directly ruled that a lunatic's deed of bargain and sale is abso- lutely null and void, and the distinction between his feoffment and his deed was recognized. So, also, in Rogers v. Walker, 6 Pa. St. 371, which was an ejectment by a lunatic, it was held that a pur- chaser from her had no equity to be reimbursed his purchase money, or the cost of improvements, and Chief Justice Gibson said : "Since the time of Thompson v. Leach, Carth. 435-468, it has been held that a lunatic's conveyance executed by sealing and delivery only is abso- lutely void as to third parties, and why not void as tO' the grantor ? It was said to be so for the very unphilosophical reason that the law does not allow him to stultify himself — an early absurdity of the common law, which was exploded with us by Bensel v. Chancellor, 5 Whart. 371." The doctrine that a lunatic's power of attorney is void finds con- firmation in the analogy there is between the situation and acts of infants and lunatics. Both such classes of persons are regarded as under the protection of the law. But, as already remarked, a luna- tic needs more protection than a minor. The latter is presumed to lack sufficient discretion. Reason is wanting in degree. With a lunatic it is wanting altogether. Yet it is universally held, as laid down by Lord Mansfield in Zouch v. Parsons, 3 Burr. 1805, that deeds of an infant which do not take effect by delivery of his hand (in which class he places a letter of attorney) are void. We are not aware that any different rule exists in England or in this country. It has repeatedly been determined that a power of attorney made by an infant is void. Saunderson v. Marr, i H. Bl. 75 ; 2 Lil. Abr. 69; I Am. L. Cas. 248, 249. So it has been decided in Ohio (Lawrence V. McArter, 10 Ohio 37) ; in Kentucky (Pyle v. Cravens, 4 Litt. 17) ; in Massachusetts (Whitney v. Dutch, 14 Mass. 462) ; and in New York (Fonda v. Van Home, 15 Wend. 636). In fact, we know no case of authority in which tlie letter of attorney of either an infant or a lunatic has been held merely voidable. It must, therefore, be concluded that the circuit court was not in 32 COMPETENCY OF PARTIES. error in instructing the jury that a power of attorney executed by an insane person, or one of unsound mind, is absolutely void. This disposes of the only serious question in the case. There are other assignments of error, but they may be dismissed with brief notice. Those which relate to the admission or rejection of evidence are clearly without merit. The only one which has any plausibility, and which needs particular notice, is that which complains of the re- fusal of the court to permit a medical witness to give his opinion respecting the sanity of John Hall at the time when he signed the power of attorney, basing his opinion upon the facts and symptoms stated in the depositions read at the trial. The witness was, however, allowed to give his opinion on the testimony adduced by the plain- tiffs. The record does not show fully what were the facts stated in the depositions, nor whether they were established by uncontradicted evidence. It may be, therefore, that by the form in which the ques- tion was put, the witness was required not merely to give his opinion upon facts, but to ascertain and determine what the facts were. This, of course, was inadmissible. The rule is, as laid down in Green- leaf's Evidence, § 440: "If the facts are doubtful and remain to be found by the jury, it has been held improper to ask an expert who has heard the evidence what is his opinion upon the case on trial ; though he may be asked his opinion upon a similar case hypo- thetically stated." (Sills v. Brown, 9 C. & P. 601.) The question asked was : "From the facts stated in these depositions, and the symptoms stated, what, in your opinion, was the state of John Hall's mind on December 27, 1852, as to sanity or insanity?" It was to this the plaintiffs objected. But the witness gave his opinion, founded on all the testimony adduced by the plaintiffs tending to show insanity, and that opinion was that Hall was capable of doing business and of executing a power of attorney. He could have said no more had he been allowed to consider the evidence given by the defendants as well as that given by the plaintiffs. The defendants, therefore, received no possible injury from the ruling of the court. Hence this assignment cannot be sustained. There remains one other exception to be considered, for the proper understanding of which a concise statement of the plaintiff's title is necessary. They claimed under a grant made on December 3, 1848, from T. M. Leavenworth, Alcalde of the district of San Francisco, to John Hall, their ancestor. The grant was duly recorded prior to the third of April, 1850, in books deposited in the depositor's office. It was for a part of the pueblo lands situate within the corporate limits of the city, as defined in 185 1, east of Larkin and north of Johnson street. Subsequently, the claim of San Francisco to her pueblo lands was submitted to the United States Border Land Com- missioners, and on the 3d day of October, 1854, it was confirmed. An appeal was taken to the district court, and thence transferred to the circuit court, where, on the i8th day of May, 1865, the claim of 33 the city to the lands, including the lot now in controversy, was con- firmed. And '- ' 'ee of the circuit court was affirmed by this court, by the of the appeal therefrom, the mandate having ' sent dowii .i.ii riled February 4, 1867. On the 20th of June, • . a city ordinance, known as the Van Nes? or-Iinance, was passed, by which the city relinquished and . r right and claim to the lands within her corporate h.. : iued by- the iiarter of 1851, to the parties in actual possession thereof, by them- -clves or tenants, on or before 7r •'•'■— • • ■'--- ■ • ■ ■ ied such posses- sion was kept up until the 'w linance into the ' ^cils, or, if interrupicU by a: \ had been, or . vered by legal process. The -' nko declared iiat all persons who held titles to lands .wiiiiii ■'•[-■. '> ing east of Larkin street and northwest of job; :ne. f any grant by any ayuntamiento, town council, or alcalde of the , -...Mr. r'fter the 7th of July, 1846, and before the incorporation of ! ■ which grant, or material- portions of which, was registered : . . ' >roper book of records, deposited in the office or of the recorder of the county of San Francisco, on o! -piil 3, 1850, should, for all purposes contemplated by the o; , be decreed to be the possessors of the land granted, altliougli It might be in the actual occupancy of persons holding the K'UM" '' \orse to the "grantees. As the lot granted to Hall is within : ription, the ordinance assured to him whatever right and 1 i I' ty then had, and confirmed, so far as the city could confirm i' ' ilde's grant. ly, on the nth of March, 1858, the legislature of the :i act ratifying and confirming what the citv cotmcils he Van Ness ordinance, and on the ist 0/ '54, •:' .i^:'^ all the right and title . f i1:r- T'r.'i to rporate limits of the as i;<: cM.L ii,v.urporating the city, p:-: ...ic:. of April 15, 1851, were thereby rel' ;nted to he uses and purposes specified m -^ ;icc thereof, i.ct of the legislature of the state, : . on the nth S, excepting, however, from the reiuiqul^liment certain luded in the grant to Hall. i ants and confirmations were effectual to vest in Hall ' nd in dispute admits of no question, and it is not ■itiff in error.' He claimed under John Hall. Bia 'I been given in evidence by the plaintifif^ ' ' ey were the children and heirs of Hall, a; ■ chief, the defendants asked the court to vrr for the reason, among others, tbat tv 5, 1864, it was incumbent u] ,.^ ^ , , .ii hr-;'! I'l-vi' hi'i-M ri'.mmrii.rf'.l v .' ivElNUARD C\5L<. led by &v Vhere ai' ' (i with brici a of evidence . any plausibilit\ mplains of ^he rv > sfive h' tacts wt remain to b' .pert will on trial ,; bu.. aics.-. and c 1 no Tr>ore bad Iv icnce till: . prior ti ' the depositor's office. •itbin the corporate ■kin and north of Francisco to her ' 'rder Land Com it was C' ■ce tran: ". the eld I J PRINCIPAL. 33 the city to the lands, including the lot now in controversy, was con- firmed. And this decree of the circuit court was affirmed by this court, by the dismissal of the appeal therefrom, the mandate having been sent down and filed February 4, 1867. On the 20th of June, 1855, a city ordinance, known as the Van Ness ordinance, was passed, by which the city relinquished and granted all her right and claim to the lands within her corporate limits, as defined by the charter of 1851, to the parties in actual possession thereof, by them- selves or tenants, on or before January i, 1855, provided such posses- sion was kept up until the introduction of the ordinance into the common councils, or, if interrupted by an intruder, had been, or might be recovered by legal process. The ordinance also declared that all persons Avho held titles to lands within said charter limits, lying east of Larkin street and northwest of Johnson street, by virtue of any grant by any ayuntamiento, town council, or alcalde of the pueblo, after the 7th of July, 1846, and before the incorporation of the city, which grant, or material portions of which, was registered or recorded in a proper book of records, deposited in the office or custody or control of the recorder of the county of San Francisco, on or before April 3, 1850, should, for all purposes contemplated by the ordinance, be decreed to be the possessors of the land granted, although it might be in the actual occupancy of persons holding the same adverse to the grantees. As the lot granted to Hall is within this description, the ordinance assured to him whatever right and title the city then had, and confirmed, so far as the city could confirm it, the alcalde's grant. Subsequently, on the nth of March, 1858, the legislature of the state passed an act ratifying and confirming what the city councils had done by the Van Ness ordinance, and on the ist of July, 1864, congress enacted that all the right and title of the United States to the lands within the corporate limits of the city of San Francisco, as defined in the act incorporating the city, passed by the legislature of California April 15, 185 1, were thereby relinquished and granted to said city, for the uses and purposes specified in the ordinance thereof, ratified by an act of the legislature of the state, approved on the nth of ]\Iarch, 1858, excepting, however, from the relinquishment certain parcels not included in the grant to Hall. That the grants and confirmations were effectual to vest in Hall the title to the land in dispute admits of no question, and it is not denied by the plaintiff in error. He claimed under John Hall. But when this title had been given in evidence by the plaintiffs below, with proof that they were the children and heirs of Hall, and when they had rested in chief, the defendants asked the court to direct a verdict in their favor for the reason, among others, that under the state statute of Alarch 5, 1864, it was incumbent upon the plaintiffs, inasmuch as their action had not been commenced within a year after 3 — Reinhard Cases. 34 COMPETENCY OF PARTIES. its passage, to show an actual possession in themsejves or their an- cestors within five years next before the commencement of the action, which they had failed to do. Cal. Stat. 1863-4, pp. 149 and 435. The court refused the direction, and correctly. At the time when the request was made it did not appear that the actual posses- sion of the land had not been enjoyed by the plaintiffs within five years next before the action was iDrought, and, therefore, they were presumed to have had such possession, in the absence of evidence of an adverse possession, and no such evidence has been given. The 9th section of the act of April 22, 1850, which defined the time for commencing civil actions, Cal. Stat. 1850, p. 343, expressly declares that in every action for the recovery of real property such a pre- sumption shall be made in favor of one establishing a legal title. In addition to this, three of the plaintiffs were minors when the title descended to them, and continued minors until within less than five years before the suit was brought (Cal. Stat. 1834, p. 435), and one was a minor until 1872. The period of their disabiHty was, therefore, not to be included in the statutory period of limitation. It is probable that when the request to direct a verdict for the defendants was made, the supplementary act of April 4, 1864, was overlooked. Certainly it has not been argued here that the plaintiffs below were affected by the act of March 5 of that year. But it is claimed the plaintiffs were barred by the Statute of Limitations of 1855. That, however, is not before us. The circuit court was asked to give no instructions in regard to it, and none was given. Besides, so far as the record exhibits, there was no evidence of continued ad- verse possession during the five years next preceding the commence- ment of the suit. There is nothing more in the case that requires particraar notice ; nothing which would justify our awarding a new trial. The judgment is, therefore, affirmed.^ KITCHEN V. CAPE GIRARDEAU and STATE LINE R. R. CO. 1875. Supreme Court of Missouri. 59 Mo. 514. Lewis, J. — The petition stated in substance that defendant, by a resolution of its board of directors, adopted May 23, 1870, em- ployed plaintiff as its general agent, with an extensive range of powers and duties for the management of its external affairs ; that his salary was to be $10,000 per annum, and the engagement was to ^ See Tarbuck v. Bispham, 2 M. & W. 2. In Drew v. Nunn, L. R. 4 Q. B. D. 661, it was held that, where one is so in- sane as not to be able to act for himself, he can not act through an agent. PRINCIPAL. 35 lie at ^i lonths, or until a contract made on the same vviih the Cairo and Fulton Railroad Company, 1 ; that plaintiff entered immediately upon the dis- ■ L^s. and thenceforth was at all times willing, and .adiness, to perform any services which might be !(i, as such agent, by defendant, for the said term of hat defendant !■" ^ ^-..•- •. -i ... . . i <-. ,,.,y^ g^^., atiff demanded ; '. after general (iciuuii, .^cl -c that the *: resolution employing plaintii' : nuthoritVi :ured by false and fraudulent r ^; that rented himself as an officer and . /^_ Ider in Fulton Railroad Company ; that he had great personal capitalists in this country and in Etv-- ■ -nd with of certain counties ; that as agent fc \nt, he a transfer from the Cairo and Fulton icaiiroad Com- le franchises and property, including from 200,000 to 'nd, and would obtain large county subscriptions ■c of defendant, besides other great aids and ad- t defendant in building its railroad; that these representa- relied upon by defendant, and were the whole inducement : >tion of the resolutions ; but that they all proved to be false :ulent, so that defendant realized none of the promised ■ lat defendant, before ascertaining the falsity of said repre- paid to plaintiff, on account of said agency, the sum of which defendant claimed a right to recover back with also alleged that plaintiff rendered no services under his contract of agency, but abandoned the same wholly, and ' "t had rescinded the contract soon after its date, and . plaintiff upon discovery of said frauds, vvcis filed by plaintiff, putting in issue all the new matter in the answer. The verdict and judgment were in favor itiff for the amount claimed, less the payment proved by * * * rf's testimony tended to prove the allegations in the ts close the defendant asked the court to instruct the plaintiff could not recover because he had omitted to ^^ndant was authorized by its charter to make the al- The refusal so to instruct is assigned for error. 1' charter restrictions, the power of a corporation to tsually measured by the general objects and pur- 'Oration. It is always presumed that a corporate roper contract whose scope and tendency are the design of its legislative creation. It is .-aiitted. FAi-niliS. '.on in t] >)r their an- - l!u iient of the : pp. 149 and . . V . At the time '.he actual posses- •;::aintiffs within five therefore, thev wer< inch dt i>- 343. ^ ea! projr cstabhsl ere miii until with.;, It. 1834. p. - .- liisability v l'!;ntation. ect a verdict for the .IV.L of April 4, 1864, was led here that the plaintiffs • . ' ' " it is .. ,-,.V ihe cifv ii ■1 none w.i evidence '-.jinrcs pariicuiar ne)tice a new trial. vND STATF '-iiat aeienciant, by ! May 23, 1870, em- i extensive rang^e 01 ^ external affairs ; thai .d the engagement was to was held that, where one is so in- he can not act through an agent. PRINCIPAL. 35 continue at least six months, or until a contract made on the same day by defendant with the Cairo and Fulton Railroad Company, should be rescinded ; that plaintiff entered immediately upon the dis- charge of his duties, and thenceforth was at all times willing, and held himself in readiness, to perform any services which might be required of him, as such agent, by defendant, for the said term of six months ; that defendant had failed and refused to pay, etc., wherefore plaintiff demanded judgment for $5,000. The answer, after general denials, set up for defense that the adoption of the resolution employing plaintiff' was without authority, and was procured by false and fraudulent representations ; that plaintiff represented himself as an officer and large stockholder in the Cairo and Fulton Railroad Company ; that he had great personal influence with capitalists in this country and in Europe, and with county courts of certain counties ; that as agent for defendant, he would procure a transfer from the Cairo and Fulton Railroad Com- pany of valuable franchises and property, including from 200,000 to 400,000 acres of land, and would obtain large county subscriptions to the capital stock of defendant, besides other great aids and ad- vantages to defendant in building its railroad ; that these representa- tions were relied upon by defendant, and were the whole inducement to the adoption of the resolutions ; but that they all proved to be false and fraudulent, so that defendant realized none of the promised benefits ; that defendant, before ascertaining the falsity of said repre- sentations, paid to plaintiff, on account of said agency, the sum of $1,943.16, which defendant claimed a right to recover back with interest. It was also alleged that plaintiff rendered no services under his pretended contract of agency, but abandoned the same wholly, and that defendant had rescinded the contract soon after its date, and discharged the plaintiff upon discovery of said frauds. A reply was filed by plaintiff, putting in issue all the new matter contained in the answer. The verdict and judgment were in favor of the plaintiff for the amount claimed, less the payment proved by defendant.^ * h< * The plaintiff's testimony tended to prove the allegations in the petition. At its close the defendant asked the court to instruct the jury that the plaintiff could not recover because he had omitted to prove that defendant was authorized by its charter to make the al- leged contract. The refusal so to instruct is assigned for error. In the absence of charter restrictions, the power of a corporation to make contracts is usually measured by the general objects and pur- poses of the incorporation. It is always presumed that a corporate body may make any proper contract whose scope and tendency are manifestly to forward the design of its legislative creation. It is ^ Portions of the opinion are omitted. 36 COMPETENCY OF PARTIES. often necessary, however, to prove the charter power, where the contract in issue is of a character foreign to such general design. In this case the answer sets out at length the purposes of defendant's incorporation, from which it appears that the agency under consid- eration was created, if at all, expressly to carry out or advance those purposes. It was, therefore, right to refuse the instruction.^ * * *2 UNITED STATES v. GROSSMAYER. 1869. Supreme Court of the United States. '/6 U. S. ^2. Mr. Justice Davis delivered the opinion of the court : This was a claim preferred under the Captured and Abandoned Property Act, and presents one question for consideration, which the case of the U. S. v. Anderson {ante 615), decided at this term, did not contain. It appears that Elias Einstein, a resident of ]\Iacon, Georgia, was indebted, when the war broke out, to Grossmayer, a resident of New York, for goods sold and money loaned ; and that, while the war was in progress, a correspondence on the subject was maintained through the medium of a person whose name is not disclosed, who passed back and forth several times between Macon and New York. The communication between the parties resulted in Grossmayer requesting Einstein to remit the amount due him in money or sterling exchange, or, if that were not possible, to invest the sum in cotton and hold it for him until the close of the war. In pursuance of this direction — as it is supposed money or ster- ling exchange could not be transmitted — Einstein purchased cotton for Grossmayer and informed him of it, who expressed himself sat- isfied with the arrangement. The cotton was afterward shipped as Grossmayer's to Abraham Einstein, at Savannah, who stored it there in his own name, in order to prevent its seizure by the rebel author- ities. It remained in store in this manner until the capture of Savan- nah in December, 1864, when it was reported to our military forces as Grossmayer's cotton, and taken by them and sent to New York and sold. On this state of the case Grossmayer insists that he is within the protection of the Captured and Abandoned Property Act, but it is hard to see on what ground he can base this claim for protection. It was natural that Grossmayer should desire to be paid, and credit- able to Einstein to wish to discharge his obligation to him, but the same thing can be said of very many persons who were similarly situated during the war, and if all persons in this condition had been "^Accord: Washburn v. Nashville, etc., R. R. Co., 3 Head (Tenn.) 638. Regarding the liability of an unincorporated society as principal, see Will- cox V. Arnold, 162 Mass. 577. PR; NT '.'d to rio what was done see that it ed great embar las.smcriL and o'um "ry ma- ions of the ann_^ r. T' ha- been fou' sary, as as war is commenced, that ■ 'ntercourse should cease -, ri, , .Mtizens of the resp- • ,.,..ro.v, • • •^ it, and this great that all wr :iat it is un- ut any exprr on the s did not v of the ■n this regar •■, 1861, a Non-Intercourse . commercial ■ 'letween the ?tTi!< - . . H i . I. . . ^ I i . , > L ■ . cr .^f the It is true t': •nt could allow .-' •ie, — per; but m m) i ar as he did allow n;, ;\ •-■•■.: TO be g to regulations prescribed by the secretary of the pretense, however, that this particular transaction was any one connected with the treasury department, and ore, not only inconsistent with the duties growing out of war, but in open violation of a statute on the subject. •:ion of intercourse with an enemy during the war affects id creditors on either side, equally with those who do not relation to each other. We are not disposed to deny the hat a resident in the territory of one of the belligerents may me of war, an agent residing in the territory of the other, his debtor could pay his debt in money, or deliver to him 11 discharge of it, but in such a case the agency must have ed before the war began, for there is no power to appoint lor any purpose after hostilities have actually commenced, . 5 effect are all the authorities. The rer~ ' '' :not :, obvious for while the war lasts no nds ■jrse is ]* ■ In this CcSv, ii iiiiistuin is z agent mayer to buy the cotton, the : him was illegal, because it was done by means of a nication through a messenger who was in some man- ! in the record able to pass, during the war, between : ew York. It was not necessary to make the act un- rossmaver should have communicated personally with ■ re- ion Tonceded, Grossmayer ... ^ . ohibited from trading nemy, how can the purchase in question be treated ' :^- made for him by an agent appoint^ ' -■' - ' ' ■t all with the insurgents was crea barter fntAver, where the ' - -neral design. 1.' defendant's ) under cx)nsid- or advance those action.^ * * « r^R. rossmayer, a d ; and that, ■ subject was re not i :lt.r- bv th(' .•.;lhm tlr .. but it i: nil for protection. It be paid, and credit- 1 to him, but the 'lo were similarly ondition had been nl (Tenn.) 638. PRINCIPAL. 37 allowed to do what was done in this case, it is easy to see that it would have produced great embarrassment and obstructed very ma- terially the operations of the army. It has been found necessary, as soon as war is commenced, that business intercourse should cease between the citizens of the respective parties engaged in it, and this necessity is so great that all writers on public law agree that it is un- lawful, without any express declaration of the sovereign on the subject. But congress did not wish to leave any one in ignorance of the effect of war in this regard, for as early as the 13th of June, 1861, it passed a Non-Intercourse Act, which prohibited all commercial intercourse between the states in insurrection and the rest of the United States. It is true the president could allow a restricted trade, if he thought proper ; but in so far as he did allow it, it had to be conducted according to regulations prescribed by the secretary of the treasury. There is no pretense, however, that this particular transaction was authorized by any one connected with the treasury department, and it was, therefore, not only inconsistent with the duties growing out of a state of war, but in open violation of a statute on the subject. A prohibition of intercourse with an enemy during the war affects debtors and creditors on either side, equally with those who do not bear that relation to each other. We are not disposed to deny the doctrine that a resident in the territory of one of the belligerents may have, in time of war, an agent residing in the territory of the other, to whom his debtor could pay his debt in money, or deliver to him property in discharge of it, but in such a case the agency must have been created before the war began, for there is no power to appoint an agent for any purpose after hostilities have actually commenced, and to this effect are all the authorities. The reason why this cannot be done is obvious, for while the war lasts nothing which depends on commercial intercourse is permitted. In this case, if Einstein is to be considered as the agent of Grossmayer to buy the cotton, the act appointing him was illegal, because it was done by means of a direct communication through a messenger who was in some man- ner not stated in the record able to pass, during the war, between Macon and New York. It was not necessary to make the act un- lawful that Grossmayer should have communicated personally with Einstein. The business intercourse through a middle man, wdiich re- sulted in establishing the agency, is equally within the condemnation of the law. Besides if, as is conceded, Grossmayer was prohibited from trading directly with the enemy, how can the purchase in question be treated as lawful when it was made for him by an agent appointed after his own disability to deal at all with the insurgents was created ? It is claimed that the purchase by Einstein was ratified by Gross- mayer, and that it relieves the case of difficulty; but this is a mis- 38 COMPETENCY OF PARTIES. taken view of the principle of ratification, for a transaction originally- unlawful cannot be made any better by being ratified. In any aspect of this case, whether the relation of debtor and creditor continued, or was changed to that of principal and agent, the claimant cannot recover. As he was prohibited during the war from having any deahngs with Einstein, it follows that nothing which both or either of them did in this case could have the effect to vest in him the title to the cotton in question. Not being the owner of the property he has no claim against the United States. The judgment of the court of claims is reversed, and the cause is remanded to that court, with directions to enter an order dismissing the petition,^ SAFFOLD, J., IN LUCAS v. BANK OF DARIEN. 1830. Supreme Court of Alabama. 2 Stew. (Ala.) 280. That the ordinary and legitimate sphere of mercantile transac- tions is limited to simple contracts ; and that the general power dele- gated by one member of a firm to another, by forming a mercantile connection, is equally limited, are propositions to which I readily assent. The consequence of which is that one partner cannot directly bind another by deed, nor can he constitute an agent or attorney with sufficient authority to bind the partner in any obligation in the nature of a specialty, unless the other has given special authority, or, being present, consents by parol or otherwise, except that he may make any fair disposition of the partnership effects, or release a debt to the firm under seal, and make it operate against the whole. 2 Caines' Rep. 254-5, note A and cases there cited ; also i H. & M. 423 ; 19 Johns. Rep. 513 ; 3 Kent's Com. 24. In this case, however, it is not contended that the complainant has been subjected to any immediate obligation by deed or bond, either by J. Lucas, the partner, or by either of the attorneys appointed by him. But it is said that the principles of the objection equally re- strained J. Lucas from delegating by power, under seal, the author- ity to Fort or Kenan to sign or indorse the notes or accept the serv- ice of writs, or do any other act ; that even an act which would be ^ "No active business can be maintained, either personally or by correspond- ence, or through an agent, by the citizens of one belligerent with the citizens 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." Bradley, J., in New York Life Insurance Co. v. Davis, 95 U. S. 425, 429. valid against the iiotit a seal, if done by the partner, or by ; "■" " ■••:'•• ' . .,; .appointment, would be void if executed by point, I think a nice discrimination is reqiiired. I .' a to be this: that if the bon ues ;' y -St be vi?Ae th*? evidence of ' the I or the -/■- are es- rent, the securi^ v. 3 Kent's re the objectiori ^'^nents is, ted by virtue oi one of r. The onlv materia! •,,-: on . ..4n nr. or by the authority of the t\: lal e an agent in any form to cl .vhat m- r how can it be material th '*-^- was isary solemnity? The ac: ire -■'-:d have but the same 1...^-. ....,..,. .... .. ...- au- i in any other way- It is usual and necessary M .ikichandise should have agents or clerks, with ' •! present them generally. The act of signing notes. and ments in the partnership transactions, is a power fall- V usual scope of mercantile dealings; each partner can buy . :artnership effects, and make contracts in reference to tlie 1; ' tijr fi rni. and pay and receive, and draw and indorse Garard v. Basse, i Dallas R. 1 19 ; 3 Kent's ...-.v.- inere given. Hence, I am of opinion that f Fort, and his acts as attorney in signing and in- valid, and tantamount to an appointment by rm ; and that so much of the power ?.« f^ve it ■ was unnecessar egular r ■ ! to ige which does r e. The - to manner to accept service of the writs is more ques- -Who cai? be Agent 1 E Court of Alabama, 45 Ala. 656. c Co.. of Richmond, Va., owned some cotton m their agent, Erowder, who had on, of Ouincv, TIL, who oh«-;rined 'igiiially : of debtor and cipal and agent, ng any. dealings r either of them '. the title to the the >F DAF er dele- •1 the nature lAMiiy, or, being at he niav make ' ' " ' • the .iies' +23; ^9 .AH': c'cjaHuy re- peal, the author- ihe serv- .ould be or by corre?r»on the lihclbint, as hi who, after the discharge of the lave, Jim, m i^ight of the boat, said to him, "Jim, The court charged the jury that if the boat iider tije management of said slave, and was in his posses- i'^iu-' ( r fl.:. ^fi/iiTv- n iieHvi r\- in !iim was a sufficient -ression above used u) iiir ^i.-v.- .;■ i;,-, jn^. ~,..,: ,,, ^iw;-^;-- lon of the boat, and ed by him as a delivery, and an authority to said slave ^session of the boat, then the expression amounto ' n error that th is ei- ^ _ J ; thar it w-'- r;; ..!. vwd lislead the jury. ^n by the plaintiff's l^u. .• r■l.■^^^, .,.,n>.^ . be maintained. In Cha- 'owman, i Hill lit Liie iUa^LCr l.S :U. ■": fo I'^is command. ] Guy, who & Co., be- this action own nioLion, v.%Ts correct. • o , • en the domi- ■ - -; al title. sell or :k1 they I gent to :■ them. "IS. [y ium- infants, villains '3, 7, 9- c above AGENT. 41 that a person may do through another what he could do himself in reference to his own business and his own property, because the agent is but the principal acting in another name. The thing done by the agent is, in law, done by the principal. This is axiomatic and fundamental. It needs no authorities to support it. Qui facit per fllium facit per se.^ '■' "^^ * THE GOVERNOR v. DAILY. 1848. Supreme Court of Alabaaia. 14 Ala. 469. Chilton, J. — This was an action of debt, on a constable's bond, brought by the plaintiff in error against the defendant. The declara- tion sets out the bond and condition, and assigns several breaches, among which is one breach averring that the defendant, Daily, as constable, by virtue of a writ of seizure, issued by a justice of the peace, upon a complaint in the nature of a libel against a fiatboat called the Creole, did seize upon and take said boat into his posses- sion. That the libel was afterwards dismissed, and the said Daily refused to surrender and deliver up the said boat to Feny, the person for whose use this suit was brought. It appears by a bill of excep- tions that prior to the seizure the boat had been in the actual pos- session of a slave of Feny, called Jim, and that at the time it was seized, the boat was in possession of said slave and a white man em- ployed by the owner. That Daily had intrusted the custody of the boat to the libellant, as his baihff, who, after the discharge of the boat, meeting the slave, Jim, in sight of the boat, said to him, "Jini, there is your boat." The court charged the jury that if the boat had been under the management of said slave, and was in his posses- sion at the time of the seizure, a delivery to him was a sufficient delivery to its owner. Further, that if the expression above used was made to the slave by the person in possession of the boat, and was designed by him as a delivery, and an authority to said slave to take possession of the boat, then the expression amounted to a delivery. I. It is insisted by the plaintiff in error that this charge is er- roneous, as an abstract proposition ; that it was not pertinent, and was calculated to mislead the jury. The position taken by the plaintiff's counsel, that a slave cannot be an agent, cannot be maintained. In Chastain v. Bowman, i Hill 270, it is held, the master may constitute his slave his agent, and that there is no condition, however degraded, which deprives one of the right to act as a private agent — the master is liable even for the act of his dog, done in obedience to his command. Perhaps there are no ^A portion of the opinion is omitted. 42 COMPETENCY OF PARTIES. persons capable of comprehending an authority, or acting in pur- suance thereto, who may not be constituted agents. Thus it is said infants, married women, persons attainted, outlawed, excommuni- cated, aliens, etc., may be constituted attorneys, i Livermore on Ag. 32, 33 ; Co. Lit. 52, a. Neither is it necessary, in order to prove the agency, to show an express delegation of authority, but the agency may be inferred from the nature of the employment. So in the present case, if the slave, Jim, had, as the agent of his owner, control of the boat, and was in the actual possession at the time of the seizure, his agency is presumed to continue, and a return of the boat might well have been made to him. If, in the meantime, his owner had assigned him another occupation, this would be evidence of a revocation of his authority. But the charge, although correct in this respect, is clearly wrong when it assumes the equivocal expression, "Jim, there's your boat," if designed by the bailiff as an authority to the servant to take the boat, amounted to a delivery, whether so understood by the servant or not. The expressions used amount to a mere pointing out, or a designation of the boat, and disconnected from all other facts, confer no warrant on the slave to take posses- sion. The question whether there was a delivery was one of fact, and the jury could alone judge whether the evidence sufficiently proved it. As the intention or design of the bailiff to make a delivery of the boat was not apparent from the language used, it follows no delivery was made, unless the servant was apprized of the design and intention to make it, by the terms employed.^ * * * Judgment reversed and cause remanded.^ TALBOT V. BOWEN. 1819. Court of Appeals of Kentucky, i A. K. Marsh. 436. On a writ of error to reverse a decree of the Henderson circuit court. Owsley, J. — This suit was brought in chancery by Bowen, to obtain a title to a moiety of a lot of ground in the town of Henderson, the equity whereof is asserted by him through a certain William Featherston, who, it is alleged, purchased it from the son and agent of Talbot. ^ A portion of the opinion not dealing with the subject of Agency is omitted. " "Where the overseer of a slave goes to a house where spirituous liquors are kept for sale, and tells the keeper that he will send the slave for a specified quantity of a particular quality, and goes off and sends the slave with a jug for the same; and thereupon the keeper puts it in the jug, and delivers it to the slave, the transaction is, in legal contemplation, the sale and delivery of the liquor to the overseer. The slave, in such case, is merely the instrument of the overseer." Rice, J., in Powell v. State, 27 Ala. 51, 52. The ^nrcb5?e of Featbe^'st'^n is admitted r>v the ^n«wer of T^lhot quacy of tlie consideratiou for whie oecitic execution of the contract ought not On a final hearing, the court bel. lat Bowen was entitled to relief, pi ' ' '"'' 'S, and ornfripp-.them to < the propriety of aecree \- denre in writing o'' '^ s ■ ■ Talbot. Ab the contract wa lor un. >aa: tn hmm. u"- according to the plain and obvious import of frauds and perjuries, that Talb ■ dence of the <-f'i-^. of sale; but done i' lian by lying tti or rely'__. ; . . .ute., in hi. . ,i. Upon a denial of the sale, as it would have devolved upon Bowen ' ' v-'^ proven it, the evidence should, no doubt, to authorize a decree favor, conform to the reauisitions of the statute ; or upon the I on in the answer, then, as evi- ; dUced, proof of its terms having -Id, most clearly, be essentially necessary e present case, as the purchase of on is admittel -r- ,-,■' T-jjijot, and as the statute is n- - .^ ...J upon b-'- i-''- the purpose of proving the sale or taking. oi i:;r ' ' '■ ' ' e any ■-i\"i- dence ire, there- efstous purchase, le authority of Talbot's son i. \ it is also hat evidence '^^ '*^- ■ - '^^ . -> ,,: have been ■ but it is n: rity should be • ' ■ been in wnrnig. i n.i; :'■ iiMuc :;ic sale obligatory i. > '^on mu«:t have been clothed with pou'er to sell, is • ed ; but of the ^er the . either irol, and the statute against frauds and perjuries ]i. 1 ■ .. r-'diirr '*■ -^n W- in n,--.?*-"i i <•■- V or in writing, l-* . r iimg in pui hus it is ■■ excom; but th ..::[-. So 1 ^nt of his ownc •take p 'fnr^h. ;icy is omitted. ious liquors are ;i;ive for a specified :lie slave with a incf AGENT. 43 The purchase of Featherston is admitted by the answer of Talbot, but the authority of his son to sell the land is denied ; and if author- ized, it is contended that, owing to his son's infancy, and the inade- quacy of the consideration for which the sale was made, a specific execution of the contract ought not to be inferred. On a final hearing, the court below being of opinion that Bowen was entitled to relief, pronounced a decree appointing commissioners, and ordering them to convey the lot, without making their convey- ance depend upon the failure of Talbot to execute a deed. The main objection taken to the relief sought in the bill involves the propriety of decreeing an execution of the contract, without evi- dence in writing of the terms of Featherston's purchase from the son of Talbot. As the contract was for the sale of land, there is no doubt but, according to the plain and obvious import of the statute against frauds and perjuries, that Talbot might have required written evi- dence of the terms of sale ; but this we apprehend could have been done in no other way than by either denying the sale, or pleading, or relying upon the statute, in his answer. Upon a denial of the sale, as it would have devolved upon Bowen to have proven it, the evidence should, no doubt, to authorize a decree in his favor, conform to the requisitions of the statute ; or upon the statute being either pleaded or relied on in the answer, then, as evi- dence of the sale should also be introduced, proof of its terms having been reduced to writing, would, most clearly, be essentially necessary to entitle Bowen to relief. But in the present case, as the purchase of Featherston is admitted by the answer of Talbot, and as the statute is not relied upon by him, it cannot, either for the purpose of proving the sale or taking it out of the statute, have been necessary for Bowen to introduce any evi- dence whatever in relation to the terms of sale. The failure, there- fore, to manifest by writing the terms of Featherston's purchase, affords no objection to the relief sought by Bowen. But as the authority of Talbot's son is expressly denied, it is also contended that evidence of his authority should not only have been introduced, but it is moreover urged that the authority should be shown to have been in writing. That to make the sale obligatory upon Talbot, his son must have been clothed with power to sell, is a proposition not to be controverted ; but as respects the justice of the case, it cannot be material whether the authority was created either by writing or parol, and the statute against frauds and perjuries has never been held to require it to be in writing. And that the son was authorized, either verbally or in writing, to make the sale, from the circumstances detailed in evidence, there is no room for a moment to doubt. And if authorized, according to the settled doctrine of the law, his being an infant can afford no objection against the liability of Tal- 44 COMPETENCY OF PARTIES. bot ; for although the contracts of infants are not, in all cases, bind- ing upon them, there is no doubt but, as they may act as agents, their contracts, made in that character, if otherwise unexceptionable, will be binding upon their principal. With respect to the inadequacy of the consideration relied upon by Talbot, it need only be remarked that the evidence conduces satis- factorily to prove that the full value of the lot .at the time of its sale was given for it by Featherston. Upon the whole, we are satisfied that Bowen is entitled to a spe- cific execution of Featherston's purchase; but we are of opinion that it was irregular to direct the commissioner to convey, without giving Talbot a previous day to do so. For that irregularity, there- fore, the decree must be reversed with cost, the cause remanded to the court below, and a decree there entered according to the prin- ciples of this opinion.^ JENKINS V. FLINN. 1871. Supreme Court of Indiana. 37 Ind. 349. This was an action by Jenkins, as assignee in bankruptcy, against Elijah Flinn and his wife, Charlotte, for the price of certain goods sold to the wife by the bankrupts but charged to the husband. The question was whether an agency might be inferred, on the part of the wife, for the husband, so as to make him liable for the goods. Downey, J. (After stating the facts.) Was this evidence suf- ficient to show a legal liability on the part of the husband to pay for the goods ? According to the common-law rule, the earnings of the wife are always the property of the husband just as much as are the earnings of his own hands. Bishop Married Women, §§ 21, 212, 886 ; Baxter v. Prickett's Adm'r, 27 Ind. 490. He was entitled to her earnings, because he was bound for her support, and this whether she earned much or little. Bishop Mar. Women, § 887. If she engage in any trade or business, the profits of such trade or business belong to the husband, for they are as much the earnings of the wife as any other income produced by her labor or skill. Id., § 733 ; Switzer v. Valentine, 4 Duer 96. This rule is still in force in Indiana as a part of the common law. The statute provides that the lands of a married woman and the profits thereof shall be her separate property as fully as if she was unmarried, i G. & H. 374, § 5. It is also provided that "the per- sonal property of the wife held by her at the time of her marriage, or acquired during coverture, by descent, devise, or gift, shall re- ^ Compare Bennett v. Gillette, 3 Minn. 309. In Widrig v. Taggart, 51 Mich. 103, it was held that an infant was not liable to his employer for breach of the contract of employment. 45 it and under the same rules nd be- yn the i/e before i in the s her real e.. ..„ under istances." Acts note to p. 295. /ill be seen that . ^o such per- >f the wife as si carriage or ^'^ the CO '5 ieav- ik, the --^ hiis- • it if the wife enga.Cfed in ira g-oods sold in such tra<^" *•''•"■ ■■'^"' ^' the s purchased wit: ro 1. Switzer v- \ ait:nr.i]i.', s:i['^nj ^.-lanii >-. i cung- Lovett V. Pohinson, 7 How. Pr. 105. - her se; .perty as fully as if she was un- e she m. - in and carry on business there- assent of the husband, and be entitled to the profits .... make a^ i" "'"-'-ease of her separate estate. But she .1 herself f* purchased as a feme sole can do. V. Specker, ju iiii. 413. lie wife engages in business, with the knowledge and con- ^ the business is ^e husband, ut, and he as bd ace of con- . > may make relating to such business. Abbott v. Mac- -. 220; Glann v. V,Mir,.v;ra ,■ .■■.h>-a; Cropsey v. Mc- rb. 47; Mackinl. Whart. 368; God- M.txs. 5 Harring. (L< :., j^j,] jvctcii v. Miles, 2 Conn. or V. Valentine, suhra; Chitty Con., 184; 2 Bright Hus. ln?t stated, it seems to be satisfac- c-u by tiie cases rre the wife incurs the in- •1 the credit is ^: iier ev>]ir,ively, and where, * can be no presumption thr, -; acting as the '■'■-"-' •— 1 • ^'- ^'-^ ^' ,,,ii)le. Bentley v. 106; Moses V. For- :?. <_.J 355 ; :^'\vcu V. i'cuncc, -;4 I^Iiss. 416. Mpon which the husband is bound to pay for nece-- y the wife is that the wife is his agent " >ing such articles as may be necessar/ \\\ r. Litson v. Brown, 26 Ind. 48*:; ,,,;,,= fVie facts of the case undc 'iitions. we find that bv t' I cases, bind- act as agents, unexceptionable. ition relied upor^ :e conduces satis- ;:■ time of its s.il. '-■ are o*. nd. The .;.S Ol lilC s are the 21, 212, : ...led to her this whether .... common law. ■>: woman and the L i ally" as if she was ivided that "the per- of her niarriag^e, or pfift. <-ha]l re- AGENT. 45 main her own property to the same extent and under the same rules as her real estate so remains ; and on the death of the husband be- fore the wife, such personal property shall go to the wife, and on the death of the wife before the husband, shall be distributed in the same manner as her real estate descends, and is apportioned under the same circumstances." Acts 1853, p. 57, copied in note to p. 295, I G. & H. It will be seen that this statute reached only to such per- sonal property of the wife as she had at the time of the marriage or acquired during the coverture by descent, devise, or gift, thus leav- ing, as we think, the common-law rule with reference to the hus- band's right to the wife's earnings unchanged. Baxter v. Prickett's Adm'r, supra. It follows that if the wife engaged in trade and purchased goods to be used or sold in such trade, they became the property of the husband, unless purchased with money acquired and belonging to her as above stated. Switzer v. Valentine, supra; Glann v. Young- love, 27 Barb. 480; Lovett v. Robinson, 7 How. Pr. 105. As the wife holds her separate property as fully as if she was un- married, we suppose she may engage in and carry on business there- with, with the assent of the husband, and be entitled to the profits which she may make as an increase of her separate estate. But she cannot bind herself for goods purchased as a feme sole can do. Hasheagen v. Specker, 36 Ind. 413. Where the wife engages in business, with the knowledge and con- sent of the husband, the business is regarded as that of the husband, the ^vife as his agent, and he as bound for the performance of con- tracts which she may make relating to such business. Abbott v. Mac- kinley, 2 Miles 220; Glann v. Younglove, supra; Cropsey v. Mc- Kinney, 30 Barb. 47; Mackinley v. M'Gregor, 3 Whart. 368; God- frey V. Brooks, 5 Harring. (Del.) 396; kotch v. Miles, 2 Conn. 638; Switzer v. Valentine, supra; Chitty Con., 184; 2 Bright Hus. and Wife, 300, § 20. As a qualification of the rule last stated, it seems to be satisfac- torily established by the cases that where the wife incurs the in- debtedness, and the credit is given to her exclusively, and where, therefore, there can be no presumption that she was acting as the agent of the husband merely, the husband is not liable. Bentlev v. Griffin, 5 Taunt. 356 ; Carter v. Howard, 39 Vt. 106 ; Moses v. For- gartie, 2 Hill (S. C.) 355 ; Swett v. Penrice, 24 Miss. 416. The theory upon which the husband is bound to pay for neces- saries purchased by the wife is that the wnit is his agent for. the purpose of purchasing such articles as may be necessary while the parties live together. Litson v. Brown, 26 Ind. 489. Proceeding to examine the facts of the case under consideration, in view of these legal propositions, we find that by the evidence it is shown that the husband knew that the wife was engaged in business, to some extent he derived a profit from the business, the wife sup- 46 COMPETENCY OF PARTIES. porting herself and contributing to the support of the children, which, otherwise, he would have been compelled to. He had paid $550 of her debts, but whether on account of this business or not is not shown. On the other hand, it is shown by the agreed statement of facts that she received the goods and agreed to pay for them ; and he testi- fies that he never bought anything of the plaintiffs nor ever agreed to pay them anything; that he never saw the bill of the goods or knew of their purchase. It is not shown that the credit was given to the husband, or even that the plaintiffs knew that there was any such person in existence. After some hesitation, and without any very firm conviction that we are right, we have come to the conclusion that we ought to hold that the credit in this case was given to the wife, and that we cannot infer from the circumstances an agency in the wife and a liability of the husband. Judgment affirmed, with costs. ^ KILLINGSWORTH v. PORTLAND TRUST COMPANY. 1890. Supreme Court of Oregon. 18 Ore. 351. Lord, J. — This is an action to recover damages for failure of the defendant to execute and deliver to the plaintiff a conveyance of certain premises, pursuant to an agreement to that effect. The de- fendant denies this, and alleges, as the attorney in fact of one De- borah H. Ingersoll, in compliance with said agreement, that it did not execute and tender to the plaintiff a conveyance of said premises, etc., and now brings it into court and deposits it for the plaintiff, and that plaintiff refuses to accept the same. To this the plaintiff demurred, on the ground that the same does not state facts sufficient to constitute a cause of defense to the cause of action alleged. The point raised by the demurrer is, can the defendant, a corporation, execute a deed of conveyance of real property as the attorney in fact of another? In this state the right to become incorporated is se- cured by a general law, and any persons may avail themselves of it by complying with its provisions. Corporations which owe their ^ "A feme covert may act as the agent or attorney of her own husband, and as such, with his consent, bind him by her contract or other act. * * * She may act as the agent of another in a contract with her husband, and when she does, or when she is the mutual agent of her husband and a third person, her declarations may be given in evidence by the husband, and in his favor." Dixon, C. J., in Birdsall v. Dunn, 16 Wis. 250, 254. "A married woman is capable of being appointed and acting as the agent of a third person, without the consent of her husband." Clopton, J., in Pullam v. State, 78 Ala. 31, 2>2- 1 law must be governed by it in the mode of manner of exercis- powers, and in conferred. But the e may author- ot corporations for many purposes not contemplated , law and endue it with powers an.' rnn.icities to be sregard of its rules, or which n ly extend, >[ its common-law povi-— ' "-' The meas- -lative power in this r oy circum- in the e ' -is, the -s ^.re i- 2 pro- strained by the J: in de- the nature and c:. : . - s con- • 1 corporation, and -the mode of t'f the law of ., whether a charter or a statute, i:.. •I'^'^d; for iwer except as thus given, either exprc 'ental )f the powers granted. ' by our statute that a corporation may engage in any usiness, pursuit, or occupation (Code, § 3217), ^orations are affected with some disabihty when of mcorporation are sufficient for the purpose, there is iiii occupation or business in which it may not engage in this vactly as individuals. By its articles of incorporation the de- t corporation is expressly authorized and empowered "to act general or special agent, or attorney in fact, for any public ate corporation, or person, in the management and control of rate or other property, its purchase, sale, or conveyance, etc." icstion is made but what the defendant, by its articles of in- ition, has conferred upon it the power to do the act for which s claimed to be an alleged failure ; but the contention is that oration, from the nature of the organization as an artificial necessitated to act through agents, is inrnpable ^f executing as an attorney in fact. This argiUTient '<- '.at there are some thin^r'^. from the le •lat a corporation is : ',s liiustra- ' file common law, as .. . ^ ..- an admin- executor, because its duties a nal nature and '■' rated, or to take an oath, wncu _-j vecjuired by law, iig to execute some duty or trust. But this argument 'liat a corporation may be er 1 to do by •ncapable of doing imder its €• ■ iw powers, created, its p• bill of is or ...L the crt ;^iven the plaintiffs knew that there was any hout anv very firm c that jices an agency in. the wife aitu a liability ih costs. ^ IT^AND T}< • )MPANY. Inmcrp^ {,\v r-il'irii of thc . e of I u; Lis.iL '.ii - . L J ue de- Toniey in fact of one De- -li .>aid agTecment, that it did 1 '"onveyance of said premises. ^posits it for the plaintiff, me. To this the plaintiff ■s not state fact.s sufficient V ... ...... ■ .iise of action " '■ ■■•'' ^^"-' is. can the defendant, ■ as the att. T'ley m lacr e incorporated is se- 1 themselves of i' which owe thei'' ; nnornr*y of her own husband, and t or other act. * * * with her husband, and liusband and a third husband, and in his ting as the agent of ■(■;n T , in P'.jllr.in V. AGENT. 47 existence to the common law must be governed by it in the mode of their organization, in the manner of exercising their powers, and in the use of the capacities conferred. But the legislature may author- ize the creation of corporations for many purposes not contemplated by the common law and endue it with powers and capacities to be exercised in disregard of its rules, or which may greatly extend, modify, or limit its common-law powers and privileges. The meas- ure of the legislative power in this regard is limited only by circum- stantial provisions. Ordinarily, in the creation of corporations, the common-law incidents and powers are implied, unless otherwise pro- vided or restrained by the law of its corporate existence. But in de- termining the nature and extent of the powers and capacities con- ferred on a corporation, and the mode of their exercise, the law of its creation, whether a charter or a statute, must be consulted ; for it has no power except as thus given, either expressly or as incidental to the exercise of the powers granted. It is provided by our statute that a corporation may engage in any lawful enterprise, business, pursuit, or occupation (Code, § 3217), so that, unless corporations are affected Vvdth some disability when the articles of incorporation are sufficient for the purpose, there is no lawful occupation or business in which it may not engage in this state exactly as individuals. By its articles of incorporation the de- fendant corporation is expressly authorized and empowered "to act as the general or special agent, or attorney in fact, for any public or private corporation, or person, in the management and control of real estate or other property, its purchase, sale, or conveyance, etc." No question is made but what the defendant, by its articles of in- corporation, has conferred upon it the power to do the act for which there is claimed to be an alleged failure ; but the contention is that a corporation, from the nature of the organization as an artificial body, necessitated to act through agents, is incapable of executing a deed as an attorney in fact. This argument is based on the assump- tion that there are some things, from the inherent nature of the case, that a corporation is incapable of doing, and seeks its illustra- tions in the common law, as that a corporation cannot be an admin- istrator or executor, because its duties are of a personal nature and cannot be delegated, or to take an oath, when so required by law, before proceeding to execute some duty or trust. But this argument overlooks the fact that a corporation may be empowered to do by statute what it was incapable of doing under its common-law powers, and when thus created, its powers, capacities and modes of exercis- ing them depend upon the statute. Nor is the disability in such cases of a character which cannot be obviated by statute, for, as ^Ir. ]\Iorawetz says, there are numerous instances in which corporations have been expressly empowered by statutes to administer estates. Alorawetz on Corporations, § 357. The reason why a corporation was unable to perform the office of 48 COMPETENCY OF PARTIES. executor or administrator, as stated by Blackstone, was that it could not take an oath for the due execution of the office, i Bla. Com. 477. But to enable a corporation to act as executor or administrator, the statute may dispense with the oath, or provide that some one of its officers may take it, or the law of the state may not require any oath for the due execution of the office, and in such case, when no other impediment intervenes, a corporation may act as administrator when the law of the state does not require the administrator to take an oath. It was not so held in Deringer's Adm'r v. Deringer's Adni'r, 5 Houst. 416; i Am. St. Rep. 156. So, too, in Lincoln's Sav. Bank v. Ewing, 12 Lea 602, where it was urged that a corporation was incapable of taking to itself a mortgage or trust conveyance, it was held that a corporation may take and hold as a trustee or mortgagee, and execute a trust in which it has an interest within the scope of its business, and a failure or inability to comply with the provisions of the code, by taking the required oath, would not affect the validity of the deed or the title vested. As it is not questioned that the business in which the defend- ant is engaged is a lawful occupation, and that the articles of incorporation are sufficient to confer the power on the defendant to act as an attorney in fact in furtherance of its legitimate objects, there is nothing to prevent it from doing the acts essential to carry on its business and comply with the terms of its agreement, unless it is incapable of performing such acts from some cause inherent in itself. A corporation, like a natural person, has a right to conduct its legitimate business by all the means necessary to effect such ob- ject. Within its prescribed range it can do whatever a natural per- son, mutatis mutandis, could do. Wharton on Agency, § 57. In Barry v. Merchants' Exchange Co., i Sand. Ch. 280, it is said : "Every corporation, as such, has the capacity to take and grant property and to contract obligations the same as an individual. * * * And every such corporation has power to make all con- tracts which are necessary and usual in the course of the business it transacts, as means to enable it to effect such objects, unless ex- pressly prohibited by law." Having the power conferred upon it to act as an attorney in fact, is it not endowed with all the faculties or capacities essential to execute it and carry out the business projects of its creation? Why may not a corporation act as an agent for an individual or another corporation? As the owner of real property, it can, by its authorized agents, execute a conveyance, or it may authorize another, by power of attorney in writing, to con- vey such property for it. Why, then, may it not act as the agent or attorney in fact of another for a like purpose, when it is so author- ized, and to thus act is one of the chief powers conferred to effect the object of its creation and to carry on the business in which it is engaged ? "Within the scope of its corporate powers," says Mr. Mechem, am;.-!, 49 "unless there are exprc ;sions in its charter, or constating instruments to the contrary, a corporation may act as agent either for an individual, a partnership or another c -no tion. Many of the great corporations of the country are orp f this express purpose under statute or cha-"' "" ■-^--'-■■^■^ — their pow- ers and the methods of exec • cases the authority so to act might be :iijpli-a as : ' ■ t- pose." Mochem on Agency. ^ ^>4. Tt i"^ ^- tion may act as the agent o* 'dued with the faculties or instruis: 's au- thorized to undertake and crea- tion. When "a corporation c..-,..;.^^ .>..■_ .m ;q authorized by its incorporation to do the thi. '>! .-.; li business, it is an exp ' ■: 'iect. If it is to be ex ■ : 'ie nature of its organizcttiuu, it cannoL act j li f r.'.;h agents, there would be little left in the u it could do. As was said by the court in Hopkins v. Gallaton Turn- pike Co., 4 Hump. 412 : "The common-law rule with regard to natu- ral persons, that an agent, to bind his principal by deed, cannot in tlie nature of things b« applied to corporations aggregate, these be- ing of mere legal existence, and their board, as such, literally speak- ing, are incapable of a personal act. They direct or assent by vote, but their most immediate mode of action must be by agent." Being a creation of the law — an artificial person — it can only act by agents, who are its limbs or instrinnentalities, to effect the purpose for which it was organized, and to act for it, their act being the act of the corporation exactly as the act of an individual is his act. As such, upon the principle of the objection raised, it could not make :<■'■ ' lent in person, but it may by its o'' 'd in such affixing the seal i? the pnrty >. «:be -^eed ' iUe meaning of the statj s lu 01 ■ 1 ' V the grantor. Kelly v. l. .. -i., , - . S. 711; : .^ V. Brace, 51 Md. 508; Am. & Eng. Ency. of Law, tits. u;gment, Corporations. t. within the same principle of reasoning, it may be said that ' 'M cannot make a - iid very ill in the mouth of a defendant, but it is not - sake the objection is allowed; it is founded on general prin- ciples of policy which he shall have the advantage of, contrary to the real justice between the parties. That principle of public policy is n .' - ') court will lend its aid to a party who grounds his action '; ;n immoral or upon an illegal act. Mitchell v. Smith, i Binn. :der v. Charles' Adm'rs, supra. The principle to be all the cases is, that the law will not lend its support t >. 'ounded on its own violation. Coppel v. Hall, 7 Wall. 558. ■>->se principles to this case. The bill of particulars served cndant avers "the plaintiff's demand is founded on his issions as a broker or salesman on commission, for 'in cards and other spmnincr ?.nd th'^ir m^chinerv of ', put in ' it, Upon ' ss was bn\mg and seiimg machinery for other parties. The moment he- .».. 1 • ■ his case he showed that •"'•" "■ -^ engaged in a business V itrary to a clear and exr of congress. That for s liable to a fine and ini^'ii-onment. The intent with •' i cannot he inquired into in this action. Hi's right to I upon ^ 'acts. 1 to re- pon his : . : it to pei : serf- 's. Ihc vhich he testified showed he had no such r; Without; f '-i< in -o-"] transactions, he could nr^^ ->t, show .. • '. His case as he exhibit? d • "^ "' ■'-' - ^le grounds b' n cannot sue- 'ar his recov- . .- :.crs? provides that no per- ;i£C or carrying;- on any -d and described until 'lerefor ■: ' r ■■■ anv p ;^ icli otlenbe to -hall pay $20 for , a broker to nego- ■ iucts or merchandise ; lis act. • laws of the United •he courts of this -<^. 24. '.. may exist be- alividuals." Camp- ■:1t. 274, 276. AGENT. 51 It is not necessary that the statute should expressly declare the contract to be void. An action founded upon a transaction pro- hibited by a statute cannot be maintained, although a penalty be imposed for violating the law. Seidenbender et al. v. Charles' Ad- ministrators, 4 Serg. & Rawle 159. Hence where a contract is made about a contract or thing which is prohibited and made unlawful by statute it is void, though the statute itself does not declare it shall be so, but only inflicts a penalty on the offender. Columbia Bridge Co. V. Halderman, 7 Watts & Serg. 233. Nor is there any distinc- tion in this state, whether the contract is inaluni prohibittun or malum in se. Columbia Bridge Co. v. Halderman, 7 Watts & Serg. 233. The test whether a demand connected with an illegal transaction is capable of being enforced by law is, whether the plaintiff requires the aid of the illegal transaction to establish his case. Swan v. Scot, II Serg. & Rawle 164; Thomas v. Brady, 10 Barr. 170; Scott v. Duffy, 2 Harris 20. If a plaintiff cannot open his case without showing that he has broken the law, a court will not assist him. Thomas v. Brady, supra. It has been well said that the objection may often sound very ill in the mouth of a defendant, but it is not for his sake the objection is allowed; it is founded on general prin- ciples of policy which he shall have the advantage of, contrary to the real justice between the parties. That principle of public policy is that no court will lend its aid to a party who grounds his action upon an immoral or upon an illegal act. Mitchell v. Smith, i Binn. 118; Seidenbender v. Charles' Adm'rs, supra. The principle to be extracted from all the cases is, that the law will not lend its support to a claim founded on its own violation. Coppel v. Hall, 7 Wall. 558. Apply these principles to this case. The bill of particulars served on the defendant avers "the plaintiff's demand is founded on his claim to commissions as a broker or salesman on commission, for the sale of certain cards and other spinning and their machinery of a cotton or woolen mill, put in his hands for sale by the defendant, on or about May, 1866." Upon the trial he testified that his business was buying and selling machinery for other parties. The moment he opened his case he showed that he was engaged in a business directly contrary to a clear and express act of congress. That for so doing he was liable to a fine and imprisonment. The intent with which he did it cannot be inquired into in this action. His right to commissions as shown rested upon his illegal acts. His right to re- cover in law must depend upon his legal right to perform the serv- ices. The facts to which he testified showed he had no such right. Without the aid of his illegal transactions, he could not, and did not, show any services performed. His case as he exhibits it is based upon a clear violation of the statute. He grounds his action upon that violation. Thus resting his case, he cannot successfully invoke the aid of a court. We are aware there are some English authorities, as well as de- 52 COMPETENCY OF PARTIES. cisions in some of our sister states, that make a distinction in cases of contracts predicated of a violation of the revenue laws, and espe- cially that class of them which does not expressly declare the con- tract to be void. The case of Aiken v. Blaisdell, 41 Vt. 655, is a strong case going to sustain a contract of sale contrary to law. We prefer, however, to stand by our own decisions. The case of Maybin v. Coulon, supra, was based upon a violation of the revenue laws of the United States, and the unbroken current of authorities in this state is to hold a contract void which is grounded upon a clear viola- tion of a statute, although it may not be expressly so declared by its terms. Judgment affirmed.^ * Compare Cooper v. Griffin, 13 Ind. App. 212. Statutes in most states provide that it is unlawful for any one to retail drugs or to compound prescriptions without a license. See Mass. Rev. Stat. (1902), Chap. 76, §§ 10-23; Mo. Annot. Stat. (1906), Chap. 23. II CHAPTER III. SUBJEC. OF AGENCY. Section 1. — What Acts can be done by an Agent. In re LONDON AND MEDITERRANEAN t.^w't: Ex PARTE BIRMINGHAM BANKING CO iSf^S. Court OF Appeal IN Chancery. L. R. 3 Ch. App. 65:. At an extraordinary meeting of the London and Mediterranean Hank, Limited, held on the 22d of November, 1865, resolutions A ere passed for winding up the company voluntarily, and Messrs. Maxwell, Routh, Collins and Schoales were appointed liquidators. .\t the first meeting of the liquidators, held. on the 24th of Novem- i.or, at which all four liquidators were present, a resolution was • I •• • ';■ ' m that the bankers of the company be r " 10 . . ■ ks or drafts bearing the signature of one •-. • ^ li- manager, or secretary, countersigned by the accouniatd or ' ihe cashiers of the company, and that the bank's acceptances dnue to be signed l3y one of the liquidators and by the ng Company were the holders of five ■ dates since the " " no v?d by one of the rs ,,er 'for Lhe Lijuuon and Me . Lim- tion." The Birmingham Ba.. ,. _/ , daimed for £4667 los., in respect of these five bills. ,-- i, ,1 YfQQri changed since the bills were accepted, tors disputed the claim of the Birmingham 0:1 the ground that the ' ' ' ' " been accepted niv instead of two, as rc'- the Companies accept bills being given b_y the ninety-fi'fth the original liquidators had passed a re ■'' of £16,500 should be issued to a Mr '"• led to have taken these five bills • ■ n;r, (■ '" 'V ''': -is a di^ :irs. ake a distinction in crises .n oi 1.! 07 TT^t ' 41 Vt. 6. ..y to law rhe case ;■) of the re\ i-nt of auth CHAPTER III. SUBJECT-MATTER OF AGENCY. Section 1. — What Acts can be done by an Agent. In re LONDON AND MEDITERRANEAN BANK. Ex PARTE BIRMINGHAM BANKING COMPANY. Court of Appeal in Chancery. L. R. 3 Ch. App. 651. At an extraordinary meeting of the London and Mediterranean Bank, Limited, held on the 22d of November, 1865, resolutions were passed for winding up the company voluntarily, and Messrs. Maxwell, Routh, Collins and Schoales were appointed liquidators. At the first meeting of the liquidators, held on the 24th of Novem- ber, at which all four liquidators were present, a resolution was passed by them that the bankers of the company be requested to honor all checks or drafts bearing the signature of one of the liqui- dators, manager, or secretary, countersigned by the accountant or one of the cashiers of the company, and that the bank's acceptances should continue to be signed by one of the liquidators and by the manager as theretofore. The Birmingham Banking Company were the holders of five bills of exchange drawn at different dates since the winding up, and by different persons, and each accepted by one of the four liquidators and the manager "for the London and Mediterranean Bank, Lim- ited, in liquidation." The Birmingham Banking Company claimed to be creditors for £4667 los., in respect of these five bills. The liquidators had been changed since the bills were accepted, and the present liquidators disputed the claim of the Birmingham Banking Company on the ground that the bills had been accepted by one liquidator only instead of two, as required by the Companies Act, 1862, power to accept bills being given by the ninety-fifth section of the act. It appeared that the original liquidators had passed a resolution that bills to the extent of £16,500 should be issued to a Mr. Dimsdale, and Mr. Dimsdale seemed to have taken these five bills of exchange and to have got them discounted. There was a dispute as to 53 54 SUBJECT-MATTER. whether these bills were issued for the purposes of the liquidation or for other purposes, as to which some evidence was entered into. The vice-chancelor Stuart was of opinion that the Birmingham Banking Company had established their claim, and he made an order that their claim in respect of the said five bills of exchange should be allowed. The official liquidators appealed. Mr. Bacon, Q. C, and Mr. J. N. Higgins for the appellants : We reply on the statutory requisitions, and contend that these bills are invalid, as being signed by one liquidator only. The company at the meeting could authorize one liquidator to act, but the liquida- tors could not. It is clear on the face of the bills that the company was in liquidation, and any one taking them is bound to know that one liquidator could not bind the company. There is no distinction between this case and the case of a claim by the London and South Western Bank against this very company, where the vice-chancellor decided against the claim. Mr. Swanston, Q. C, and Mr. Lindley for the Birmingham Bank- ing Company : Our olaim is that of creditors holding these bills as security. We advanced the money and took the bills signed by one liquidator. There is nothing in the act to make such an acceptance invalid. Lord v. Hall, 8 C. B. 627 (E. C. L. R., Vol. 65). It does not signify who actually signs the bills if the signer has the authority of all the liquidators. A clerk may sign. Ex parte Sutton, 2 Cox 84. The Vice-Chancellor Stuart was of opinion that we had advanced this money ; and the words as to the bills of exchange must have been inadvertently introduced into the order. Mr. Higgins, in replv. Sir W. Page Wood, L. J.— The point now before us is this, and it does not seem to be unim- portant to the liquidators of the Mediterranean Bank : namely, whether the proof should be upon the bills or upon the debt? Now, as regards the claim upon the bills, the case stands in a very small compass, and it is this : According to the Act, liquidators, when they are in the plural number, cannot perform any act except there be two at least engaged in the performance of that act, unless they have authority from the company appointing the liquidators to per- form it in any other manner — as for example, through the medium of one liquidator. Then the ninety-fifth section gives power to liquidators to accept bills of exchange, which shall bind the com- pany. That power is simply a statutory power; and the liquidators have no power whatever, except by the statute, and, of course, there- fore, that power must be exercised as the statute directs ; that is to say, the liquidators in this case have no power to accept bills except through the medium of two, at least, of them. I am disposed to accede to the very able argument of Mr. Swan- D5 -ion and Mr. ' ind I am not at all inclined to dispute their propo?'*"'*' ' '^ -uthority of the two does not necessarily mean that \ ' the names of the two liquidators on the piece of !!s the bill. But though the liquidators might well liquidators are said to have done so here) and give l; some one, yet that \r ' • ■ e of a s' other specific thingf ^• ;y may 1 at their clerk or ag< • gn for ■• ' 1 i:l\ )>q, impress a 'ken to ; That may iie 95th , a. .>.ast you r^' xo liq- ;pon the partici;' be so d I apprehend tli > Hs ■iigned in a parti 'r. •^ when ud icular bil ^ ay il be done. [The lord justice then commented on the continued.] The grant of a sweeping authority to aether to the extent of £16,500, without any judgmenL > ro the date at which they are to be issued, the pro- ■ wliich they are to be issued, the amount of the bills, or vhich they shall run, except this, that there are from the date, whenever that may be, does not to us an act which it was competent to the four liquidators ■> i^he. manner proposed by their resolution. rds tiie holders of the bills, it may be said that they are . disadvantageous position, in being aflfected by any of these with reference to the acceptance of bills; but I apprehend "^ of the bills must be bound by the statute. It niay al- n"on how far they are bound by the private regulations 's deed, but here is an express provision in the statute iT» that a single liquidator cannot accept — that is to be the person authorizing an acceptance. Therefore. mds on the face of the bill r ' *" nf the requisite his own fault if he takes a biJi iescription, and in thrown upon him of showing that the statute has with. We think that that omis has not been in this I, and that the decision of the vice-chancellor in the idon and South Western Bank was a perfectly correct circumstances there stated, which seem to have been "'"Stance to the circumstances here. Our order will •prejudice to the question whether or not the clain - ver the I ';ich may have been a(. '\nce of '^tor? ; that i? <^uif■e : to anv :f the liquidation ..as entered into. ;hat the Bin!;ing;haiTi le said five . for the '.d contf ator onl ■ .ciior to ac; of the bills - nirmir. rr1-.,'im Rank- in uun.'!.; i; :v. We the bills ■ luidator. and it does not' seem to be unim- Mediterranean Bank : namely, ■;ills or upon the debt? bills, the casp -'""'''^ '■" - "--^y q-totheAct i>erform any cic^ t'-.cpi; inere . nance of that act. nnless they ;\Gf the ]■'- to per- ::iple, th'- -redinm tifth sec; r to :'ors ■ ^u^Uii.e. 'TC- the star - lo r; argument v an- WHAT CAN BE DONE BY AGENT. 55 ston and Mr. Lindley, and I am not at all inclined to dispute their proposition, that the authority of the two does not necessarily mean that you should find the names of the two liquidators on the piece of paper which forms the bill. But though the liquidators might well meet (the four liquidators are said to have done so here) and give an authority to some one, yet that must be as to the acceptance of a specific bill, or other specific thing which is to be done ; and they may then say that their clerk or agent, whoever it may be, shall sign for them ; or, it may be, impress a printed mark, which may be taken to be their signature. That may be a good acceptance under the 95th section ; but at least you must have the judgment of the two liq- uidators upon the particular bill which they authorize to be so signed ; and I apprehend that a general resolution that all these bills should be signed in a particular way could go no farther than Mr. Lindley put it, that when they have exercised their judgment, and desired that a particular bill shall be accepted, that shall be the way in which it shall be done. [The lord justice then commented on the evidence, and continued.] The grant of a sweeping authority to issue bills, altogether to the extent of £16,500, without any judgment exercised as to the date at which they are to be issued, the pro- portions in which they are to be issued, the amount of the bills, or the times during which they shall run, except this, that there are to be three months from the date, whenever that may be, does not appear to us an act which it was competent to the four liquidators to do in the manner proposed by their resolution. As regards the holders of the bills, it may be said that they are placed in a disadvantageous position, in being afifected by any of these regulations with reference to the acceptance of bills ; but I apprehend that the holders of the bills must be bound by the statute. It may al- ways be a question how far they are bound by the private regulations of the company's deed, but here is an express provision in the statute which tells them that a single liquidator cannot accept — that is to say, he cannot be the person authorizing an acceptance. Therefore, if the holder finds on the face of the bill no trace of the requisite authority, it is his own fault if he takes a bill of that description, and the onus is then thrown upon him of showing that the statute has been complied with. We think that that ouks has not been in this case discharged, and that the decision of the vice-chancellor in the case of the London and South Western Bank was a perfectly correct decision on the circumstances there stated, which seem to have been very similar in substance to the circumstances here. Our order will be wholly without prejudice to the question whether or not the claim- ants are entitled to recover the money which may have been advanced to the bank at the instance of the liquidators ; that is quite another question, but the order of the vice-chancellor, in its present form, cannot stand, and will be discharged. All we do is to discharge the vice-chancellor's order, without prejudice to any proof that may ^6 SUBJECT-MATTER. be made by the Birmingham Bank in respect of moneys advanced to the bank in Hquidation ; the Uquidators to have their costs of this ap- peal out of the estate ; and the costs of the respondents of this appeal to depend upon the result of the proof they may offer in respect of the moneys advanced/ CROW V. CARTER. 1892. Appellate Court of Indiana. 5 Ind. App. 169. Reinhard, C. J. — Action by the appellees against the appellant on a subscription paper, by which Crow promised to pay Carter one hundred dollars for the purpose of piping gas from a certain well to a point where it could be used by these parties and other citizens of the community. The contract was afterward assigned by Carter to the appellees. ^ There was an answer of non est factum. Upon trial in the court below the appellees recovered. No question is made as to the consideration, nor is it denied by the appellant that he agreed to the contract as embodied in the writ- ten instrument declared upon. He admits that he authorized Carter to sign his name to the paper, but claims that such signature was invalid and not binding on him. Numerous authorities are cited by appellant's learned counsel in support of the contention that an agency cannot be assumed by one of two contracting parties for the other, and it is urged with con- siderable force and earnestness that these authorities declare that one of such contracting parties cannot validly place the signature of the other to the contract, even at his request and in his presence. We have examined the authorities relied upon and our conclusion is they do not apply to a case like the one here presented. They have reference, almost entirely, to cases coming within the purview of the statute of frauds, and but express in different forms the familiar rule that where a written instrument is necessary to the validity of a con- tract, under the statute, one of the contracting parties may not be the other's agent, even for the purpose of signing the contract. No question arises here under the statute of frauds. The act of signing ^ The concurring opinion of Selwyn, L. J., is omitted. Cited and approved in Ex parte Agra Bank, L. R. 6 Ch. 206. "Also there are some things personal, and so inseparably annexed to the person of a man, that he cannot do them by another, as doing of homage or fealty. So it is held in 33 E 3, Trespass 253, the lord may beat his villain for cause, or without cause, and the villain shall not have any remedy; but if the lord commands another to beat his villain without cause, he shall have an ac- tion of battery against him who beats him in such case." Combe's Case, 9 Co. 75a, 76. ' Regarding the question whether an agent can be given authority to answer interrogatories on oath, see Dickson v. Morgan, 7 La. Ann. 490. name was but a mechanical performance, and the ap- 'jrht to avail himself of the services of the appellee for is much as he would that of a stamp or other instru- choose to employ. ~" " • Crow o the contract n.'^ str '. upon. oi affixing the ' equired to some disinteresL- ecuting by ■ contract under the statute oi -r signature men in the presence and at the ^arty to be d, and where such is the ca<^e the that of the iiimself. Croy v. Bu ' • more- was complete when i. ".d ac- • the instrument as emuudyiii^ the tc it. . 't of signing may be no- '' rraed in m 1 e instrument may be ' ' accepted by th< •^- '"I at all. Not so ,.. •, ^ - pect to contracts iu..t ic. ■ ,..- of frauds. These are required to be in writing and signed '• be charged therewith, "or by some person thereunto y authorized." Section 4904, R. S. 1881, et seq. The ■ •.!; of a contract not v, statute, such as the one in suit, an evidence of its at as such contract, and the signa- not essential to its validity, •'^^nt affirmed. iving died before the date of submission, William Walker, ^r, was substituted as appellant, and it is adjudged that said ay the costs of this appeal out of the assets of said Crow's N-r- . ^VOOD. OURT OF MASi>-\(. UL^J- 11;,. •• 133. •OKER acting for both n effecting an-exchange of prop- •(■cover compensation from neither, unless his double em- vas known and assented to by both. to recover a broker's commission. At the trial in the ..-.•.. ,. ,.^|. q£ Worcester it appeared that the defendant tiffs to exchange his stocks for real estate, and "■ r; that at th' to s^n or e^ There was evider. At the } •h the he real estate. ins '.>^iv. -■■-' ■^ ■t.-.i -'^ •igc ; thr. f moneys advanced to iheir costs of 'l.i- .in- indents of th Ind. App. 161 a.ga\n<^t tht" iipnellant vuiiised ' ;as froi! "ties and other citizens 01 '■'1 assigned ),- r.-i.-r to . factuiu .rial itifi, it denied by ■ ■ the writ- (1 Carter ure was unsel in anc! . irc tnat iatnre of '. m iiis presence. We lid our conclusion is :e here presented. They have '•'- within the, purview of the 'It forms the familiar rule -ary to the validity of a con- ntracting parties may not be ing- the contract. No The art of sicrninG: ■•d to the ve an ac- . . _ ..„- 3 Case, 9 /en authority to answer Ann. 490. WHAT CAN BE DONE BY AGENT. 57 the appellant's name was but a mechanical performance, and the ap- pellant had a right to avail himself of the services of the appellee for that purpose, as much as he would that of a stamp or other instru- ment he might choose to employ. There is no pretense that Crow did not agree to the contract as stated in the instrument sued upon. The act of affixing the appellant's signature was not required to be done by some disinterested person as in the case of executing by an agent a contract under the statute of frauds. Here the signature was written in the presence and at the direction of the party to be charged, and where such is the case the act is regarded as that of the party himself. Croy v. Busenbark, y2 Ind. 48. The contract, more- over, was complete when the minds of the parties had met and ac- cepted the instrument as embodying the terms of their agreement. The act of signing may be performed in many ways and be valid, and the instrument may be binding, if accepted by the parties, though not signed at all. Not so with respect to contracts that fall within the statute of frauds. These are required to be in writing and signed by the party to be charged therewith, ''or by some person thereunto by him lawfully authorized." Section 4904, R. S. 1881, et scq. The signing of a contract not within the statute, such as the one in suit, is but an evidence of its acceptance as such contract, and the signa- ture is not essential to its validity. Judgment affirmed. Crow having died before the date of submission, William Walker, his executor, was substituted as appellant, and it is adjudged that said executor pay the costs of this appeal out of the assets of said Crow's estate. RICE V. WOOD. 1873. Supreme Judicial Court of AIassachusetts. 113 ]\Iass. 133. A broker acting for both parties in effecting an exchange of prop- erty can recover compensation from neither, unless his double em- ployment was known and assented to by both. Contract to recover a broker's commission. At the trial in the central district court of Worcester it appeared that the defendant employed the plaintiffs to exchange his stocks for real estate, and that he agreed to pay them a commission therefor ; that at this time the plaintiffs were also employed by other parties to sell or exchange their real estate ; that the plaintiffs introduced the defendant to these parties, and through the plaintiff's' instrumentality the defendant's stock was exchanged for the real estate. There was evidence that the plaintiffs were employed and acted as brokers for both parties in this exchange ; that they were to receive, and did receive from the 58 SUBJECT-jMATTER. owners of the real estate a commission for disposing- of it ; that the defendant knew at the time he employed them and agreed to pay them a commission that they w^ere employed by the owners of the real estate to dispose of it, and that they were to receive a commission from them, but that the other parties did not know that the plaintiffs were employed by the defendant, or that they were to receive a com- mission from him for disposing of the stock. The defendant asked the court to instruct the jury that if a broker acts for both parties in effecting a sale or exchange of property, he cannot recover compensation from either of the parties, unless both parties knew and assented to his acting for both. The court refused to give the instruction prayed for, but did in- struct the jury as follows : "If the plaintiffs were employed by the defendant as brokers to exchange his stock for real estate, and he was informed by them, or had knowledge, that they were to make the exchange with persons whose estates had been left in their hands for exchange or ^ale, and that they were to receive commissions from those persons for disposing of their estates, and that with this knowl- edge the defendant agreed to pay the plaintiffs a commission for making the exchange, the fact that the plaintiffs were employed by and were to receive a commission from the other parties would not in itself defeat the plaintiff's' claim." Devens, J. In this case there was evidence at the trial in the court below that the plaintiffs had been employed by a third person, who had promised to pay them a commission therefor, to dispose of certain real estate, and that afterward, without the knowledge of such person, an agreement was made between the plaintiff's and the defendant, by w'hich the plaintiffs were employed to act for the de- fendant in the exchange of certain stocks held by him for real es- tate, and were promised a commission if such exchange should be effected, the defendant knowing at the time that the plaintifi^s were employed for a commission to sell such real estate ; and further that afterward the plaintiffs introduced the defendant to the owner of such real estate, and by the instrumentality of the plaintiffs the exchange of defendant's stock for such real estate was effected. If this were an action by the plaintiffs against the owner of the real estate, for commissions earned in disposing thereof, the decision of this court in Farnsworth v. Hemmer, i Allen 494, would be con- clusive against the claim, upon the ground that the plaintiffs, if such facts should be proved, had entered into a relation inconsistent with the confidence reposed in them by such owner, and placed them- selves in a position antagonistic to his interests. This case presents, however, the question w'hether, conceding that the plaintiffs could not recover their commissions from the owner of the real estate, they may not recover those they claim to be entitled to from the defend- ant, as he knew fully, at the time of entering into his contract, the relation in which the plaintiffs stood to the third party. 59 It Avas the (iuty of the plaintiffs to get the hisrhest price for the ,-. ■ ' ■ ■ 13(1 for it ill ' ' while the (■ 'id the defer ■idiirement to the '! 1n\v( r -y ir commissions from bor e- [- y. Osgood, .,; . -S. 345. tracts wliich are opp^ ht and no- are this character, it t e v_,,v UCr of 1!"'' "'-'i^ ,-;-rj"v ,.,, jil- ;ent to [ -\ they shonid not be rj.;^.',v;: 1 1/. -oiiv-'i t'^L pi'jij:''-fti '/lvi- he sal*"" rif the =tork. which was thp consideration for ut one can be perniuteJ ic Juund •ainst another also in the wrong. ie to one in consideration of doing an unlawful act, .in assault ■.-• ' v^r-.'■■^■.■^ n fraud upon a third person, ' in law ; and the avoid contracts, the avowed T -rpress objcLi i.i \ ;;. M i- io do an unlawful act, but ■\\\ a view to place, or the necessary effect of which is ider wrong influences, an ' ' 'm a temptation usly affect the rights of 1 ^ns. A'or is it ary to show that injury to third persons has ; osulted -iirli ;i rrnifrriri-, for in many cases where it ha cd this ))roved. The contract is avoided on ac- .jurious tendency T.\.\\n,- .- rv ,,-., .« ii opiiaux;, ; " that the ju. at tiic; ''n th° 'n=;tr -en, and tha as en- like that asked for. jl\ui can the I suo^crfS'od 't j'-ip br-r. that the ■ dlemen onl; cr and . ..ihcr, the part,. > ^.o^.r-^., .^fi-.o- :mpson, 16 Gray 398, the pi rvices rendered to the det-.ri'aant >:.; u oroiMji', r-i.r i of a certain specific act, namely, the introduction 10 him, the parties after such introduction mak- 'act. It was there held that this was not such a ::er party, who also paid for the service of the ■1 ^'^ 'ii'ii^.'-h concealed from such p 'ill V . • make ; iff with the defendant \ iction |-;i laintiffs wvr- stock for 1 tliat the from ti commission for - r-'T^ loved by ould not I for the de- ll '.M D)- mm for real cs- such exchange should be I the time that the plaintiffs were : such real estate ; and further that ntroduced the defendant to the owner of ;t S , the instrumentality of 1' stock for such real estate ^■^■■^i■ff< thv .: ... .. .1, . .^1 ...... /..._ .. .... . ., . '\\ !!'-■'. Ol Ll!f , the decision .-, I Aiici\ ^ ■ ' I be con- and that the . if such d, had entered into a relation cnt with ■d in them by such owmi. .! ihc!n- .:onistic to his inti hether, concedinL ions from the o\\ > Vic tliiid party. WHAT CAN BE DONE BY AGENT. 59 It was the duty of the plaintiffs to get the highest price for the real estate that could be obtained for it in the market ; while the contract between the plaintiffs and the defendant was an inducement to the plaintiffs to eft'ect a sale to the defendant, even if it was on lower terms than might have been obtained from others, because they thereby secured their commissions from both parties. It was there- fore an agreement which placed the plaintiffs under the temptation to deal unjustly with the owner of the real estate. Walker v. Osgood, 98 Mass. 348. Contracts which are opposed to open, upright and fair dealing are opposed to public policy. A contract by which one is placed under a direct inducement to violate the confidence reposed in him by an- other is of this character. If the plaintiffs were guilty of injustice to the owner of the real estate, by placing themselves under an in- ducement to part with it at less than its full market value, they should not be allowed to collect the promised commissions on the sale of the stock, which was the consideration for which they put themselves in such a position. No one can be permitted to found rights upon his own wrong, even against another also in the wrong. A promise made to one in consideration of doing an unlawful act, as to commit an assault or to practice a fraud upon a third person, is void in law ; and the law will not only avoid contracts, the avowed purpose or express object of which is to do an unlawful act, but those made with a viev.^ to place, or the necessary effect of which is to place, a person under wrong influences, and offer him a temptation which may injuriously affect the rights of third persons. Nor is it necessary to show that injury to third persons has actually resulted from such a contract, for in many cases where it had occurred this would be impossible to be proved. The contract is avoided on ac- count of its necessarily injurious tendency. Fuller v. Dame, 18 Pick. 472. We are of opinion, therefore, that the judge who presided at the trial erred in the instruction given, and that the defendant was en- titled to an instruction substantially like that asked for. Nor can the ruling be sustained upon the ground suggested at the bar, that the plaintiffs were middlemen only, bringing the parties together and doing nothing further, the parties themselves making the contract. In Rupp V. Sampson, 16 Gray 398, the plaintiff was permitted to recover, not for services rendered to the defendant as a broker, but for the performance of a certain specific act, namely, the introduction of the other party to him, the parties after such introduction mak- ing their own contract. It was there held that this was not such a fraud upon the other party, who also paid for the service of the plaintiff in introducing him, although concealed from such party, as to make the contract of the plaintiff with the defendant void for illegality. That, however, is not the present case. It here appears, by the bill of exceptions, not only that there was evidence that the 6o SUBJECT-MATTER. plaintiffs introduced the parties, but that, through the instrumentality of the plaintiffs, the exchange was effected, and that in effecting such exchange the plaintiffs acted as brokers for both parties. It is to be observed also, that both the instructions asked for by the de- fendant and those given by the presiding judge proceed upon the ground that the plaintiffs were brokers, and not middlemen only. Exceptions sustained.^ COX V. HAUN. 1890. Supreme Court of Indiana. 127 Ind. 325. Elliott, J. This case has been twice tried, and the result in each instance has been against the appellant. He asks a reversal upon the ground that the trial court erred in denying him a new trial. The point is made that the verdict is not sustained by the evidence, and, in support of this point, it is urged that the evidence fails to establish a fact essential to a recovery. The fact which it is said is not proved is that the appellant did not have knowledge that the ap- pellee was acting for the parties in making an exchange of real estate. To understand the question it is necessary to outline the facts. The appellee was a real estate broker, and had in his hands for sale a farm belonging to Avery Fish. The appellant asked the appellee if he had a farm which he could exchange for property in the city of Lebanon, and this opened the negotiations which led to the ex- change of property. After several interviews the two owners were brought together, and an exchange effected, the owners fixing the terms of the exchange. The meeting took place in the appellee's office, and the terms of the exchange were there agreed upon by the owners themselves without any suggestions as to terms from the broker. The appellee, in his testimony, says that the owners "knew that he was acting as agent for them both," and he also testifies that the appellant agreed to pay him a commission of one and a half per cent. This evidence fully sustains the verdict. It is probable that without any direct testimony showing that the appellant knew that the broker was acting for the other party to the exchange the fact that he was so acting would be necessarily inferable from the fact that the appellant knew the business in which the appellee was en- ^ "I entertain no doubt, however, that when a bribe is given, or a promise of a bribe is made, to a person in the employ of another, by some one who has contracted, or is about to contract, with the employer, with a view to inducing the person employed to act otherwise than with loyalty and fidelity to his em- ployer, the agreement is a corrupt one, and is not enforceable at law, whatever the actual effect produced on the mind of the person bribed may be." Cock- burn, C. J., in Harrington v. Victoria Graving Dock Co., L. R. 3 Q. B. D. 549, 551- AIT' g-Oi^ed, and knew ti..., . already had in his hands, as brok^.. ._ ]>!. • rty of the other party to the contract of exchange. If an owner goes to a broker and promises to pay him a commis- : )n for effecting an exchange with another owner who has already ■ cd the broker, it is no more than reasonable to infer that he with knowledge th^t if the broker rendered service to both parties he will expect co ' .n from both of them. It is a mistake to sup; an ordinary real estate broker occu- pies the same position as an agent employed to buy or sell specific pro|^f^rty, for such a broker '-^ ■■ •-'-ally a middleman, employed to ir-j; the principals togethei e them an opportunity to effect a; e of property. I right, Ii6 L ' - ' , Vinton v. 1 • Ind. 104; Ale.\ North Wesr :stian Uni- . , 57 Ind. 466 ; Rowe v. Sic> cas, 53 N. Y. 621 , ivupp v. Samp- o Gray 39S ; Barry v. Schmidt, 27 Alb. L. J. 297; Stewart v. ■ . :. 32 Wis. 344; Herman v. Martineau, i Wis. 136. If the is guilty of fraud, or if h- ^"^' - any advantage of his posi- ' the injury of his princir :iinot recover commissions; ' i : lore, as here, he acts in g<.( j ;.'.itn, brings the principals to- in his own office, and they make their own hriVg^Lm, uninflu- ■y any representations of his, he is enti' trial court did not err in treating the .- ■he ground of newly-discovered evidence, as msutticient. Section 2. — Contract of Appointment for Illegal Purpose. rr TPPTvr.TTT:' ,.. tttttt; at*.":!-! Supreme Court of i'ENNSvLVANiA. 5 WalU and berg. 315. w^as an action on a written agreement in which defendant — r) promised to pay ''' • •■+iff (Hcpbaugh) one hun- '. on condition that ; procure a certain law. of " r, to be e.i;:.c:c^ by the '<: " ' ' '" ■^- ing succeeded in having '■' ■■ . Tiic practice which has generally obtutiifd in ilir contingent compensation for legal services^ has i . or hrcker .'vmi'-vvl I-/ r'-rc^ar->; f":r Tii- -irificin:!' :annot hc-^-'i;.: "at held bv t ■Svd ro tJ; ! rj/'_'i ',':i •^ m; 'le instrn . that in ^ M,)r both parties. It is oi.^ askf^'i *■ ''V ♦'■:-- ■]<: judge f ■i not miadicineu oaiy. at. He asks a •tpon > urged tlia very. Tlu ■■ d not ha ience lails to 1 it is said is that the ap- •'■'/: of real he facts. owners were '•s fixing the he appellee's • LIJ.M jd upon by the s to terms from the ,. ■cnys tliat the owners "knew oth," nnd he also ■'^sHfies ^hat oi one ; t. It is i . , • • , mg that the appellant knew that ■'■ ''■arty to the exchange the fact sarily inferable from the fact hich the ' ' was en- 549, APPOINTMENT FOR ILLEGAL PURPOSE. 6l gaged, and knew that he already had in his hands, as broker, the property of the other party to the contract of exchange. If an owner goes to a broker and promises to pay him a commis- sion for effecting an exchange with another owner who has already employed the broker, it is no more than reasonable to infer that he does so with knowledge that if the broker rendered service to both parties he will expect compensation from both of them. It is a mistake to suppose that an ordinary real estate broker occu- pies the same position as an agent employed to buy or sell specific property, for such a broker is generally a middleman, employed to bring the principals together, and give them an opportunity to effect an exchange of property. Pape v. Wright, ii6 Ind. 502; Vinton v. Baldwin, 88 Ind. 104; Alexander v. North Western Christian Uni- versity, 57 Ind. 466 ; Rowe v. Stevens, 53 N. Y. 621 ; Rupp v. Samp- son, 16 Gray 398 ; Barry v. Schmidt, 27 Alb. L. J. 297 ; Stewart v. Mather, 32 Wis. 344; Herman v. Martineau, i Wis. 136. If the broker is guilty of fraud, or if he takes any advantage of his posi- tion to the injury of his principal, he cannot recover commissions; but where, as here, he acts in good faith, brings the principals to- gether in his own office, and they make their own bargain, uninflu- enced by any representations of his, he is entitled to compensation. The trial court did not err in treating the showing for a new trial upon the ground of newly-discovered evidence, as insufficient. Judgment affirmed.^ Section 2. — Contract of Appointment for Illegal Purpose. CLIPPINGER V. HEPBAUGH. 1843. Supreme Court OF Pennsylvania. 5 Watts and Serg. 315. This was an action on a written agreement in which defendant (Clippinger) promised to pay the plaintiff (Hepbaugh) one hun- dred dollars on condition that he should procure a certain law, of interest to the defendant, to be enacted by the legislature of Penn- sylvania, Hepbaugh having succeeded in having said law enacted.^ Rogers, J. The practice which has generally obtained in this state, to allow a contingent compensation for legal services, has been a ^"An agent or broker employed to purchase for his principal cannot become the seller without notice to the principal. If appellees, as commission mer- chants, were employed by appellants to go upon the market and buy for them a certain quantity of wheat for cash, this would not authorize appellees to turn over to appellants wheat held by them, even if they charged no more than the market price, unless the fact was disclosed to the principals." Craig, J., in Tewksbury v. Spruance, 75 111. 187, 188. ' The reporter's statement of facts is condensed. 62 SUBJECT-MATTER. subject of regret, nor am I aware of any direct decision by which the practice has received judicial sanction in our courts. Biit con- ceding the principle to be as is assumed, it is very certain that it has not yet been extended to the allowance of a compensation for serv- ices in our legislative halls. The point, therefore, comes before us, untrammeled either by inveterate practice or authoritative decisions. Such services, be it remembered, are not confined to the legal pro- fession. They are common to every class of citizens, and if we should give countenance and a legal sanction to this attempt, which is the entering wedge, it is impossible to foretell the train of evils of which it may be the prolific parent. Already is there too much reason to believe that this indispensable branch of government, without which our whole political fabric would crumble into ruins, has in some instances been contaminated by sinister and improper influences brought to bear on members, and no doubt having their source in the direct and indirect efforts of individuals retained under the hope of reward in the event of success. It cannot be avoided that such influences, privately and secretly exerted under false and covert pretenses, must operate deletcriously on legislative action ; and of this truth, unfortunateh^, our annals (I do not speak of this state alone) have afforded some melancholy proofs. There is at least a wide-spread and growing suspicion of legislative integrity, which of itself is an evil of no little magnitude. Its pernicious tend- ency seems to be admitted as to public bills, but a distinction is taken between them and private acts. That the latter may not prove so pernicious as the former (of which, by the bye, I am by no means satisfied), may be conceded without danger to the argument; but the principle, with which alone we have to do, is the same. When it is recollected that, with the rapid increase of wealth and popula- tion, such acts have greatly multiplied, and have assumed an im- portance before unknown; and when it is remembered (with all due respect be it spoken) that comparatively so little care is taken in the preparation of private bills, or in giving notice to persons interested in the examination of the evidence on which they are founded, that the information of members is derived, altogether or in part, from the applicant himself, and the secret whisperings of his friends, we cannot be too much on our guard against them, nor insist too strongly on the necessity of preserving, as far as can be done, the source from which the evidence on which they act is obtained. It would not be becoming in us to lend our aid in a transaction which may be founded in corruption, and steeped in fraud. These remarks are not to be understood as having any relation to the case in hand, for no suspicion is entertained that anything out of the ordinary course took place in respect to this bill. Yet it cannot escape observation that even here an inducement was not wanting to an improper, or at least personal influence, or deceptive acts, to procure the success of the measure. The temptation may be \L PURPOSE. IS not always been confined v.•i^hit^ stich narrow great reason to fear. W . it is not .... _-se to say, that a certain ^. for such r not be recovered; but we are cl .^on that it -:-i?t sound polic}' to - •■•-'■ ■ - • ' -"ly lead J per and corrupt m. It iS not : ihat it t. : ' j mislead, it is (!• ainst th; ■y, no hu- man bt'ui^ can reasonably • Watts 15 J V ':': i~ decided that a co i< ree- I cure signatures r, ] . and cannot be ' , '■ f it is essential t " ijm imposition in U!c exercise ui :- Ay so to extend the same protection f ;ue. It is of the first consequence thai iiitiy '. that they should be protected from the ari ons of designing men, having an interest ■ '•'■'-■ "' 'luty. st erroneous to assi" ■1, riKM. a. practice, leading to .sucn consequences, is noi ■ private interest and public morals. The reverse is too .,>r already has a class of persons arisen, at the seat of the ! government and elsewhere, who make it a business to push li private claims, for a compensation greatly, if not entirely, "on success. How demoralizing this may be, it needs not prophecy to foretell. Nay, more; we feel its effects, for ible to shut our eyes at the consequences of -this, with >, daily developing themselves in the decline of hisfice ds. How easy the transition from private ' U > themselves, it would not be difficult to ■ it eft to conjecture, for we are not without examples, wnich ' invidious to mention, but whicli are too well known, .buses may exist elsewhere, we hope -the judicial tribu- ■ rntry may be kept pure, without suspicion even, that i ' 1 be induced under a pretense to countenance vice, iCtion to a principle, the inevitable efifect of which will ' if it does not create, fraud and misrepresentation. ■ painful examples to the contrary, it is. idle to extraneous influence, ad in" ^vi-retly iipo?i Mi-- slature, is not pernicious , st inter ■^•■■:'ncy is to sap ''-^ -'■ -■.i.'Uwik-, of a'' •- luthority in tate, 6 Dana ' '-red. The cci.ri, it ' • was on the fnecial ' any direct decision bv which 'in our con- is very has . of a compcusa; ^erv- :i, therefore, com us, riractice or authoritaii MIS. '■VI- Ti.,1 confined < r'^-. ■vould not be :ich may be fcpea :i! jryua. he understood -a 'icion is ■ :)lace in re ir even here an t r.ncr T)ersonal ^ ' asure. 1 "ion may be APPOINTMENT FOR ILLEGAL PURPOSE, 63 small here, but it has not always been confined within such narrow limits, as there is great reason to fear. We do not say, it is not necessary to the case to say, that a certain compensation for such services may not be recovered ; but we are clearly of opinion that it would be against sound policy to sanction a practice which may lead to secret, improper and corrupt tampering with legislative action. It is not required that it tends to corruption; if its effect is to mislead, it is decisive against the claim ; and that such is its tendency, no hu- man being can reasonably doubt. In Hatzfield v. Gulden (7 Watts 152), it is decided that a contract, founded on a promise and agree- ment to procure signatures and obtain a pardon from the governor, is unlawful, and cannot be enforced by action. This case is very per- tinent, for if it is essential to the purity of the government to protect the governor from imposition in the exercise of the executive func- tions, it is equally so to extend the same protection to the members of the legislature. It is of the first consequence that they should not be deceived, that they should be protected from the arts and mis- representations of designing men, having an interest to mislead them from the paths of duty. It is therefore most erroneous to assume, as is done by the plain- tiff's counsel, that a practice, leading to such consequences, is not contrary to private interest and public morals. The reverse is too true ; for already has a class of persons arisen, at the seat of the general government and elsewhere, who make it a business to push through private claims, for a compensation greatly, if not entirely, dependent on success. How demoralizing this may be, it needs not the gift of prophecy to foretell. Nay, more ; we feel its effects, for it is impossible to shut our eyes at the consequences of this, with other causes, daily developing themselves in the decline of justice and public morals. How easy the transition from private individuals to the members themselves, it would not be difficult to divine ; but we are not left to conjecture, for we are not without examples, v/hich it would be invidious to mention, but which are too well known. Whatever abuses may exist elsewhere, we hope the judicial tribu- nals of the country may be kept pure, without suspicion even, that they may never be induced under a pretense to countenance vice, or lend their sanction to a principle, the inevitable effect of wdiich will be to increase, if it does not create, fraud and misrepresentation. In the face of many painful examples to the contrary, it is idle to say that individual, extraneous influence, acting secretly upon the members of the legislature, is not pernicious to the best interests of society. Its direct tendency is to sap the foundations of all morality. And we are not without authority in a sister state, 6 Dana 366, where this point has been considered. The court, it is true, decided in favor of the plaintiff; but it was on the special grounds, that it did not appear that the fee was contingent, nor that the plaintiff was expected or required to do anything he might not lawfully have done, 64 SUBJECT-MATTER. or that he had any personal or pecuniar}- interest in the success of the apphcation to the legislature. The whole reasoning- of the court, however, goes to establish these propositions, which cannot be reasonably denied. That the law will not aid in enforcing any contract that is illegal, or the consideration of which is inconsistent with public policy and sound morality, or the integrity of the domestic, civil or political institutions of a state. That a contract to procure or endeavor to procure the passage of an act of the legislature, by any sinister means, or even by using per- sonal influence with the members, would be void, as being incon- sistent with public policy and the integrity of our political institu- tions. And any agreement for a contingent fee, to be paid on the passage of a legislative act, would be illegal and void, because it w^ould be a strong incentive to the exercise of personal and sinister influences to effect the object. These are broad fundamental prin- ciples, to the truth of which we subscribe, and which cover the whole ground on which this case rests. It matters not that nothing im- proper was done or was expected to be done by the plaintiff. It is enough that such is the tendency of the contract, that it is contrary to sound morality and public policy, leading necessarily, in the hands of designing and corrupt men, to improper tampering with members, and the use of an extraneous, secret influence over an important branch of the government. It may not corrupt all ; but if it corrupts or tends to corrupt some, or if it deceives or tends to deceive or mis- lead some, that is sufficient to stamp its character with the seal of reprobation before a judicial tribunal. Two cases have been cited, adverse, as is supposed, to this view of the case : The Vauxhall Bridge Co. v. Earl Spencer (4 Con. E. C. R. 28), Jacob 64; 10 lb. 85, 7 Simons 337. In the first, it is ruled that securities given to persons who would be prejudiced by the passage of a private bill in parliament, in consideration of their with- drawing their opposition to it, are not illegal. In the last, that an agreement not to oppose a railway is not illegal. The projectors of a railway, pending a bill in parliament for incorporating them, having made an agreement on behalf of the proposed corporation, in conse- quence of which a threatened opposition to the bill was withdrawn, it was held that the corporation, having received the benefit of the agreement, was bound by it. The last case was ruled on the author- ity of the first ; and if it was the case of a secret agreement, withheld from the knowledge of the committee to whom the subject was com- mitted. I cannot say that I am altogether satisfied with the decision. Nor do I see much force in the observation, that because only one member may have been dissatisfied with the bill, non constat it would have had any influence on the house. But, be this as it may, it is put upon special grounds, that it was merely an agreement to com- pensate the opposing party for what it was apprehended they might lose by the passage of the act ; and if it were a private affair merely, API- i; ILLEGAL PURPOSE. ch the p no interest, it rais^ht be well enougfh. Rtii- '-^ -^'- , , .< .. seems, on a practice which obtains in parlia- ^ such bills when the parties can agree about them. seems to have thought that it was a matter in which lO interest, that it was neither against sound morality if he is right in these positions, his conclu- i. But in this radical distirjc^inn consists the ice of the cases. des,it would be unsafe to rely on a precede]^ from such '-', when we reflect upon the dift'eren t manner :cting such ss in the respective countries. The contrast ;- i ^ cd striking. •land, a private act of parliament is in the nature of a common ■:^ce, and the passage of such an act is conducttd in some meas- rh the forms and circumspection of a judicial proceeding. In ite it is notoriously otherwise. In both houses, in England, re carried on with great deliberation and caution, particularly house of lords ; they are usually referred to two judges, to :e and report the facts alleged, and to settle all technical forms. ig is done without the consent, expressly given, of all parties g, and capable of consent, that have the remotest interest in tter, unless such consent shall appear to be perversely, and ;t reason, withheld. An equivalent in money, or other estate, ;;lly settled upon infants, or persons not iJi cssej or not of capac- ict for themselves, who are to be concluded by the act. And a. i\ saving is constantly added, at the close of the bill, of the nd interest of all persons whatsoever, except those whose con- - so given and purchased, and who are therein particularly ., And yet, notwithstanding all the precautions used, alarm. >m felt at the frequency of acts of parliament of a priv .'St the good old rules which are the best securitv fnr r: 1 be shaken ; and wishes have been expressed f ; >i- T, that men might nol l'-^^^ <-'-"-^ -i^n.-v, >■■...: ,n . ^., _ j^e iients which they ma;, easily un- . when they are dead, uy i k j- wti 'i; ■ 'ere is reason to fear this in EnelaiK' nore so in where but little pr- not unfre- ich acts are passed \\ .: on the pri- -f^ntations of persons who have a < rest to misrep- deceive. And of the danger to pr.,, . .rising from this 3 case presents a proof ; for it is certain that this act, and might be named, so loosely drawr — ' ing so li"'^ he rights of infants, would not ha, the par" • r the legislature of this state, if properly ■ botit the assent or even hearing of the t 1 by it. I say without the hearinp \'- i1->f- ';t^oiir of fh& narenf whri rest in the success of er, goes to e.-.'-i'.fish these lenied. Tha- will i legal, or the 'don and sound nv ' the 'lucal institutions •: a state. ^r to procvire the pas'^Mgre of an means, or even ; ocr- ould be void, r\' ^on- :!itc'grity of our 'itvi - 'ntingent fee, ic , tl : Ve illegal and vo; c'.vcrcise of personal ..tn i-m^.^.^i 'lese are broad fundamental prin- Dscribe, and which cover the whole It ni?iU^r<: not that nothing im- ' !ie plaintiff. It is ; : ;. tt it is contrar}' to ieading r • , in the hands of . : i^proppr ■ ,. n}. Tucmbers, ,' nportant ■ rtiay n( - ' '" •'<''' : it clece; o stamp ribunal. adverse, as is supposed, to this view of ige Co. V. Earl Spencer (4 Con. E. C. 7 Simons 337. In the first, it is ruled ons who would he prejudiced by the rliament, in consideration of their with- e not illegal. In the last, that an is not illegal. The projectors of a •nt for incorporating them, having ; :he proposed corporation, in conse- ■ opposition to the bill was withdrawn, ■•^ having received the benefit of the ■ last case was ruled on the author- nse of a secret agreement, withheld ittc^ to whom the subiect was com- atisfied with the decision. ion, that because only one ■ ' 'V bill, lion constat it would ' "T Ke this as it may, it is an agreement to com- i was apprehended they might ' were a private affair merely APPOINTMENT FOR ILLEGAL PURPOSE. 65 in which the pubHc had no interest, it might be well enoug-h. Reli- ance was also had, as it seems, on a practice which obtains in parlia- ment, of passing- such bills when the parties can agree about them. The chancellor seems to have thought that it was a matter in which the public had no interest, that it was neither against sound morality nor public policy. And if he is right in these positions, his conclu- sions cannot be gainsaid. But in this radical distinction consists the difference of the cases. Besides, it would be unsafe to rely on a precedent coming from such a source, when we reflect upon the different manner of conducting such business in the respective countries. The contrast is indeed striking. In England, a private act of parliament is in the nature of a common assurance, and the passage of such an act is conducted in some meas- ure with the forms and circumspection of a judicial proceeding. In this state it is notoriously otherwise. In both houses, in England, they are carried on with great deliberation and caution, particularly in the house of lords; they are usually referred to two judges, to examine and report the facts alleged, and to settle all technical forms. Nothing is done without the consent, expressly given, of all parties in being, and capable of consent, that have the remotest interest in the matter, unless such consent shall appear to be perversely, and without reason, withheld. An equivalent in money, or other estate, is usually settled upon infants, or persons not in esse, or not of capac- ity to act for themselves, who are to be concluded by the act. And a general saving is constantly added, at the close of the bill, of the right and interest of all persons whatsoever, except those whose con- sent is so given and purchased, and who are therein particularly named. And yet, notwithstanding all the precautions used, alarm has been felt at the frequency of acts of parliament of a private na- ture, lest the good old rules which are the best security for property should be shaken ; and wishes have been expressed from the highest quarter, that men might not have too much reason to fear that the settlements which they make of their estates shall be too easily un- settled, when they are dead, by the power of parliament. If there is reason to fear this in England, how much more so in this state, where but little precaution is used — where, not unfre- quently, such acts are passed with but little examination, on the pri- vate representations of persons who have a direct interest to misrep- resent and deceive. And of the danger to property arising from this source, this case presents a proof ; for it is certain that this act, and others that might be named, so loosely drawn, containing so little se- curity for the rights of infants, would not have passed the parliament of England, nor the legislature of this state, if properly conned and scrutinized, without the assent or even hearing of the parties prin- cipally to be affected by it. I say without the hearing of the infants, for I count but little the assent of the parent who had an interest 5 — Reinh.\rd Cases. 66 SUBJECT-MATTER. adverse to them. It is remarkable, too, that the bill passed without any saving clause, which, although not absolutely necessary, yet would have shown some regard to the rights of persons who were not in a capacity to protect themselves. Judgment reversed, and judgment for defendant.^ ELKHART COUNTY LODGE v. CRARY. 1884. Supreme Court of Indiana. 98 Ind. 238. Elliott, C. J. — The material facts of this case are these : In October, 1878, the post-office in Goshen was kept in a room not af- fording suitable accommodations for the public, and there was a necessity for its removal. The postmaster was required by the gov- ernment to furnish a room for the office and the rent was payable out of his salary. The value of adjacent property was enhanced by the location of the post-office and its rental value increased. The citizens of Goshen requested that the location of the office should be changed, and thereupon a competition arose between property owners of two localities, and property owners on Main street made a proposition to the department that they would furnish a suitable building for the office, and this proposition was made known to the appellants who were property owners on Market street, and were desirous of having the post-office located on that street. The appellants were the owners of a brick building on Market street, in course of erection, which was suitably located for the post-office ; the appellee was the owner of real estate in the vicinity of appellants' building and was desirous of having the post-office located near his property. The appellants pro- posed to the appellee and other property owners, that they would fit up a room in their building with all suitable conveniences and equip- ments for a post-office and tender it to the government, rent free or for a nominal rent for ten years, on condition that the post-office should be maintained in the room for that period. A verbal prelimi- nary agreement was made, wherein the property owners agreed that they would each pay to the appellants a certain sum yearly for ten years, provided the appellants would propose to the government to "^ Accord: Mills v. Mills, 40 N. Y. 543. "The principal question here presented is, was the contract entered into be- tween the plaintiff and defendant void, as against public policy? _ And that turns on whether it embraces, by its terms or by necessary implication, an agreement to do an illegal act or to resort to secret or improper tampering with official action, either legislative or otherwise, to effect the purposes of the agreement, or that such was its tendency. If, by its terms, or by necessary implication, the agreement stipulated for corrupt action or personal solicita- tion in the nature of lobbying, or tended directly to such results, it is void." Marshall, J., in Houlton v. Nichol, 93 Wis. 393, 396. APPOINTMENT FOR ILLEGAL PURPOSE. 6y yield their room for a post-office at a nominal rent for ten years, and that "they would use all proper persuasion to secure the location of the post-office in their room." The notes in suit were executed pur- suant to tl ■ lent, and for the consideration th: cified. One of the . n was a personal friend of tlie post- npral, and represeateu to that officer that the location was a Sl and urged upon him the propriety of placing the otf :r -" building. The representation that the location wa le one was true. The proposition m.ade by the appellants w.-. . ,.;ed by the government and the nominal rent of $12 per annum was agreed upon, arj'i lie room leased for a pc^ ' ' . - . .t ^ ■ material deduction c ^t •.;,c 1. irties formed a comb. u tiiC ;,■ e 1". ;f:.i>a of a public office, a.; c of the _ i- dertook that certain individuals 01 their number nr in- fliie?'ce with the government officers to effect the ju . . - m- ' : \ -■ n, and that the agreement to pay for such services was ; gwu upon the success of the scheme. It has Icng been established that a contract against public policy ■■ enforced. This principle is firmly fixed and has often d to contracts. There can, therefore, be no doubt as to isrence of the rule; the only question is as to its applicability i'acts of this case. e the general public has an interest in the location of an office, a icuoad station, or the like, a contract to secure its location at a particular place is held to be against public policy and not enforce- r m' e arc very nr. - holding that an r a to locate M '-•Ration at a d place is not c ;e because ., ' olicy. St. Louis, etc., R. R. Co. v. iviatiiers, 104 111. :-, n v. Chicago, etc., R. R. Co., 53 Towa 126; s. c, 36 Am. R. 200, tHde authorities n. 214. The principle upon which these cn?o^- t!' -. • s that the public good, and not private interest, should cation of railroad depots, and this principle certainly ■1 force to an office of a purely public ■ ' . such We find in these railroad cases, and , very ciii, a principle whic s a rule govcniia^ such a present. It is true e is some diflFerence in the ;■ courts upon the question whether an agreement for the ■ -'cpotis valid when it does not restrict the location to 1. and no other ; but upon the general principle there .y. In the present case the rlifference in the o:' ap unimportant cnnsiHer^qtirm, -for here the l c and no ' d of ten '.' "vithin ~ rn?c^ v able tl place, ; . one post-ri ■ ^ I ^d without ilutely necessary, yet iciiinuaut.-" JDGE v. CRAK.V . N'DIANA. 98 '3 of this case .'1 ; ion was kept in ;■ >i af- X the public, and as a stmaster was required by the gov- = office and the rent w^ ' '■ ■' '• '"^ :ent property was en: ^ntal value increased, liieci h"on of the o^co should he cha^ : rs of two ■^ sit! on to lid lun^ •AS mad( ket strt'i ■0 ; Uic f , ..to liic owjier ot 'ants' bui ^1 was desirous of his property. The apj)ellants pro- operty owners, that they would fit il suitable conveniences and equip- ^' ' ) the g'overnment. rent free or , condition that the post-office i,;i- that period. Ax ' ' ".■■■- '■■f the property owne; ^ a certain sum ycariv for ten roposc to the q-overnment to , was the 1 into be- against \nd that :i or by 1 : to seen: : iierwise, If, by APPOINTMENT FOR ILLEGAL PURPOSE. 6/ yield their room for a post-ojfifice at a nominal rent for ten years, and that "they would use all proper persuasion to secure the location of the post-office in their room." The notes in suit were executed pur- suant to this agreement, and for the consideration therein specified. One of the appellants was a personal friend of the postmaster general, and represented to that officer that the location was a suitable one, and urged upon him the propriety of placing the office in appellants' building. The representation that the location was a suitable one was true. The proposition made by the appellants was accepted by the government and the nominal rent of $12 per annum was agreed upon, and the room leased for a period of ten years for a post-office. The material deduction of fact from these subsidiary facts is that the parties formed a combination for the purpose of securing the location of a public office, and as part of the plan the appellants un- dertook that certain individuals of their number should use their in- fluence with the government officers to effect the purpose of the com- bination, and that the agreement to pay for such services was contin- gent upon the success of the scheme. It has long been estabhshed that a contract against public policy will not be enforced. This principle is firmly fixed and has often been applied to contracts. There can, therefore, be no doubt as to the existence of the rule ; the only question is as to its applicability to the facts of this case. Where the general public has an interest in the location of an office, a railroad station, or the like, a contract to secure its location at a particular place is held to be against public policy and not enforce- able. There are very many cases holding that an agreement to locate a railroad station at a designated place is not enforceable because against public policy. St. Louis, etc., R. R. Co. v. Mathers, 104 111. 257; Williamson v. Chicago, etc., R. R. Co., 53 Iowa 126; s. c, 36 Am. R. 206, vide authorities n. 214. The principle upon which these cases proceed is that the public good, and not private interest, should control in the location of railroad depots, and this principle certainly applies with full force to an office of a purely public character, such as a post-office. We find in these railroad cases, and there are very many of them, a principle which supplies a rule governing such a case as the present. It is true that there is some difference in the views of the courts upon the question whether an agreement for the location of a depot is valid when it does not restrict the location to the place named, and no other ; but upon the general principle there is entire harmony. In the present case the difference in the opinions of the courts is an unimportant consideration, for here the location is restricted to one place and no other, for a period of ten years, and the case, therefore, falls within the holding of the cases most favor- able to the appellants. We say that the location is restricted to one place, for the reason that it is matter of judicial knowledge that but one post-office can be located in the citv of Goshen. While the cases 68 SUBJECT-MATTER. of which we have spoken estabhsh a principle which rules this case, there are others which, in their general features, more nearly resem- ble the one at bar. Closely analogous in principle are those cases which hold that contracts which may tend to the injury of the public service are void. Card v. Hope, 2 B. & C. 661 ; Wells v. Foster, 8 M. & W. 149 ; Blachford v. Preston, 8 T. R. 89 ; Tool Co. v. Norris, 2 Wall. 45 ; Ashburner v. Parrish, 81 Pa. St. 52. There are many phases of injury to the public service, and we do not deem it necessary to examine the cases upon the subject, for we think it quite clear that a contract which is made for the purpose of securing the location of an important office connected with the public service for individual benefit, rather than for the public good, tends to the injury of the public service. The case made by the evidence falls fully within the principle that contracts which tend to improp- erly influence those engaged in the public service, or which tend to subordinate the public welfare to individual gain, are not enforce- able in any court of justice. Pollock Prin. of Cont. 279 ; Anson Cont. 175 ; I Whart Cont., sections 402 to 414, inclusive. A wholesome rule of law is that parties should not be permitted to make contracts which are likely to set private interests in opposition to public duty or to the public welfare. This rule is recognized in our own case of Maguire v. Smock, 42 Ind. i (13 Am. R. 353), where it was held that an agreement to pay a consideration to a property owner for signing a petition to secure the improvement of a street was void, although there was no fraud, and although the person to whom the promise was made was really in favor of the improvement. It is not necessary that actual fraud should be shown, for a con- tract which tends to the injury of the public service is void, although the parties entered into it honestly and proceeded under it in good faith. The courts do not inquire into the motives of the parties in the particular case to ascertain whether they were corrupt or not, but stop when it is ascertained that the contract is one which is op- posed to public policy. Nor is it, necessary to show that any evil was in fact done by or through the contract. The purpose of the rule is to prevent persons from assuming a position where selfish motives may impel them to sacrifice the public good to private bene- fit. An English author says : "But an agreement which has an ap- parent tendency that way, though an intention to use unlawful means be not admitted, or even be nominally disclaimed, will equally be held void." Pollock's Principles of Contracts, 286. In the case of Tool Co. V. Norris, supra, the court said : "All agreements for pe- cuniary considerations to control the business operations of the gov- ernment, or the regular administration of justice, or the appoint- ments to public offices, or the ordinary course of legislation, are void as against public policy, without reference to the question, whether improper means are contemplated or used in their execution. The law looks tO' the general tendencv of such agreements ; and it closes •-in:r th'o.m recoo tiitiriu in anv of the itiade to the public throujih the cor.; ■c to aii here, too, v therefore, i .ought to bear u\ '■ ";ood. Pierce •iJohc oi. .... in the c . t tlie opinion th^ ; (tract, that ic is coiTtr-r-- ■( necessarily, in ttic •ler tampering with ;.;. . iniluence over an import,' ■^ between the two cla^ :ry, 24 ]\Iiss. o. whc; ;olice, a- which .1 me p > n, 52 In.. .„,. „:id L from the decision 1- approvin' ■ - ' '-"' ■ one or was id corrupt 1 ,... . . of an extra. -- 1 of the government." Tb. ,., .: .1,,..:. ,.,,,.1 :„ Q^j. of the be •■.:t been enforc> ngfe the site of tlie .ii. 441 ; - 5 Wi. services ■ ,.,^\ el^M- ich mon n the '■ ;d. Am. ed.) I this case e, and tl;' lu' I a.- 1 atfacts . r ;t.;ii'. '. irnaroT)- .ike contracts ^^<^blic duty i case of ' i'.iiicr ;i. H! ■ of the part' sliuw Th ' . : '. (. ; iv 1 1': s an ap the busii void APPOINTMENT FOR ILLEGAL PURPOSE. 69 the door to temptation, by refusing them recognition in any of the courts of the country." The case in hand is plainly distinguishable from those in which a promise is made to the public through its representatives. Here the motive of the contracting parties was to secure the location of a public office to advance their private interests, and not to benefit the public, and here, too, there was competition between two locali- ties. The case, therefore, is one in which there should have been no influence brought to bear upon the decision of the contest except that of the public good. The cases of Pierce v. Ruley, 5 Ind. 69 ; Commissioners v. Perry, 5 Ohio 56; State Treasurer v. Cross, 9 Vt. 289, hold that a contract with the officers of the state for the benefit of the state is valid, but they clearly distinguish between the cases where a promise is made to an individual for his private benefit and those in which the prom- ise is made to a public officer for the benefit of the public. This distinction is made in the case of State v. Johnson, 52 Ind. 197, and in the course of the opinion the following extract from the decision in Clippinger v. Hepbangh, 5 Watts & S. 315, is approvingly quoted: "It matters not that nothing improper was done or was expected to be done by the plaintiff. It is enough that such is the tendency of the contract, that it is contrary to sound morality and public policy, leading necessarily, in the hands of designing and corrupt men, to improper tampering with members, and the use of an extraneous, secret influence over an important branch of the government." The difference between the two classes of cases is clearly stated in Odi- neal v. Barry, 24 Miss. 9, where it was said : "The members of the board of police, as individuals, will not receive any portion of the money for which the note v/as given. At the time of the contract it was not intended or expected that they should receive it. It was not a proposition by the defendants to pay them so much as indi- viduals, in consideration that they would not change the site of the court-house. If it had been, it would have been clearly illegal, and could not have been enforced." It is true that a contract to pay for professional services in fairly placing the facts of a case before the officers of government is valid. Trist V. Child, 21 Wall. 441: Smith Leading Cases (7 Am. ed.) 692 ; Bryan v. Reynolds, 5 Wis. 200. But the contract in this case is not for professional services but for personal influence, and this constitutes an essential element, for personal influence is not a commodity for which money can be demanded. The case of Os- canyan v. Arms Co., 103 U. S. 261, cited by appellants, is directly against them upon this point. In the course of the opinion in that case it was said : "But, independently of the official relation of the plaintiff to his government, the personal influence which he stipu- lated to exert upon another officer of that government was not the subject of bargain and sale. Personal influence to be exercised over yo SUBJECT-MATTER. an officer of government in the procurement of contracts, * * * is not a vendible article in our system of laws and morals, and the courts of the United States will not lend their aid to the vendor to collect the price of the article. Numerous adjudications to this effect are found in the state and federal courts. This is true when the vendor holds no official relations with the government, though the turpitude of the transaction becomes more glaring when he is also its officer." In Trist v. Child, supra, the court, in speaking of pro- fessional services, said : "But such services are separated by a broad line of demarcation from personal solicitation." While contracts for the payment of fixed fees for professional services are valid, yet, when the fees are made contingent upon suc- cess in obtaining the desired legislation, the contract sought, or the office asked of the government, the contract becomes so tainted with illegality as to render it void. "High contingent compensation," said Justice Grier, "must necessarily lead to the use of improper means and the exercise of undue influence," and the decisions give approval to his discussion of the question of the legality of such contracts, and concur in the conclusion that all such contracts are against sound public policy. Marshall v. Baltimore, etc., R. R. Co., i6 How. 314; Meguire v. Corwine, loi U. S. 108 ; Oscanyan v. Arms Co., supra, see opinion, page 274 ; Clippinger v. Hepbaugh, supra; Wood v. McCann, 6 Dana (Ky.) 366; Mills v. Mills, 40 N. Y. 543 ; Ormerod V. Deannan, 100 Pa. St. 561 ; s. c. 45 Am. R. 391. The contract before us has two infirmities, one of an agreement for the use of personal influence, and another of an agreement for compensation dependent upon the contingency of success. That we are correct in saying that the agreement is dependent upon a con- tingency is shown by the fact that the consideration became payable only in the event that the post-office was located and maintained in appellant's building. Doubtless, a contract to assist a property owner in fitting up or purchasing a building to be given to the government for public use would be valid, but in the present instance this was not the char- acter of the consideration of the notes in suit, although such an ele- ment may have formed part of the consideration. The considera- tion of the notes is indivisible, and the illegal cannot be separated from the legal, and, under the familiar rule, that where the consider- ation is in part illegal, and there can be no separation, the whole contract is void. The contract before us must be held invalid because of the illegality of the consideration. Judgment affirmed.^ * See Robertson v. Robinson, 65 Ala. 610. See Barnard v. Backhaus, 52 Wis. 593, as to the validity of an appointment to make gambling contracts. In Roby v. West, 4 N. H. 285, it was held that a contract of employment to sell lottery tickets was void. A statute in force at the time made> lotteries illegal. l.LG\L PURPOSE. 1838. bupREME Court of Pen :< to the common pleas of Berks county. ^...-. was an action of assumpsit by Daniel Gulc... .. . ;;3t Adolph Hatzfield, .to recover from the defendant the sum of one thousand dollars as a compensation to the plaintiff for procuring a pardon for the defendant, Avho had been convicted of murder in the second de- i.-- ■ :'.od sentenced. court below was of opinion that the ' Dt forbid by the plaintiff, if the juty believed h( >:rwise entiiled r : .C'jver. Hi'STON, J. — D. G. Gulden was plaintifif below, an t case lii assumpsit against Hatzfield. The declaration con^i.-i. ^'""ee counts. The first set out that Hatzfield had been indie e -f oyer and terrriiner of Berks county, and tried, and a vji'iict y, and sentenced to confinement for twelve years. This was out at large and sentence in full, and the dates. And that ri w' 1 .'uance of the said sentence, the said Hatzfield was in confine- ment in the Eastern penitentiary in the county of Philadelphia, and on the day of at said penitentiary, in consideration that the plaintiff, at the special instance and request of said de- *" • l.'at. had then and there agreed with and undertaken, and faith- viromised the said defendant, to use all fair and honorable lis to obtain from the governor of the cor Hh of Ivania a pardon for the said defendant, being there ' ned in pursuance of such sentence, etc. He, the said de- ■ jt, then and there agreed with, and faithfully promised to the 'aintift' to pay the said plaintiff the sum of one thousand dol- a remuneration for his services and loss of time, in using his us to obtain from the said governor of Pennsylvania a pardon, .nd the plaintiff avers that afterwards, to wit, at, etc., the ('! ; f did use all fair and honorable exertion? to obtain, etc., and ' - reason thereof the defendant becan • cd to pay the n of one thousand dollars so by him '. yet although sted, etc. ud count states that the defendant ,^a.-. u Jebted to plain- one thousand dollars for services performed in obtaining nor of Pennsylvania a pardon for, etc., and being so ed etc. •t was i; \'id O'.it Time or pardon iciirement of mntrac rhe L . - -1 . ' J r to bi adjudications to this eft'ect i.i rts. This i? *'- - - ' •• the the govern r the c3 more glaiing ,!so r-n. tb p court, in .iO- are sep:. m " uad : payment ot tixed fees c^ssional ^ ^'le fees- are . made conL.i>.v . i.^on suc- gislation, the contract sought, or the the contract becomes so ---•-' with 'High coniingent compel aid • mS . )val V question of the ' .:h c Dntracts, and ion that all '=ii<"' ■■'inst sound 1. 3II V, Baltimo w. 314; — ' U. S. 106, -■pra. lippinger v I V. 06; Mills V. ■rod 61 ; s. c. 45 ,-. has two ini; ■.Tit . : nfluence, an'! ; iur dependent upon the cor >s. That we .,,.;„,, v>^,of the agreem*. ... ..- -.^.i,.. ,...,,. upon a con- tact that the consideration became payable t-office was located and maintained in ist a property owner in ' n or ven to the government i use esent instance this was nor. the char- ie notes in suit, although such an ele- of the consideration. The considera- .nd the illegal cannot be separated ,:Iiar rule, that where the consider- can be no - •re us must b >n. Judgment af. -iintment i that ac'- ' nt to APPOINTMENT FOR ILLEGAL PURPOSE. 7I HATZFIELD v. GULDEN. 1838. Supreme Court of Pennsylvania. 7 Watts 152. Error to the common pleas of Berks county. This was an action of assumpsit by Daniel Gulden against Adolph Hatzfield, to recover from the defendant the sum of one thousand dollars as a compensation to the plaintiff for procuring a pardon for the defendant, who had been convicted of murder in the second de- gree, and sentenced. The court below was of opinion that the law did not forbid a re- covery by the plaintiff, if the jury believed he was otherwise entitled to recover. Huston, J. — D. G. Gulden was plaintiff below, and brought case in assumpsit against Hatzfield. The declaration consisted of three counts. The first set out that Hatzfield had been indicted in the court of oyer and terminer of Berks county, and tried, and a verdict of guilty, and sentenced to confinement for twelve years. This was all set out at large and sentence in full, and the dates. And that in pursuance of the said sentence, the said Hatzfield was in confine- ment in the Eastern penitentiary in the county of Philadelphia, and on the day of at said penitentiary, in consideration that the plaintiff, at the special instance and request of said de- fendant, had then and there agreed with and undertaken, and faith- fully promised the said defendant, to use all fair and honorable exertions to obtain from the governor of the commonwealth of Pennsylvania a pardon for the said defendant, being then and there imprisoned in pursuance of such sentence, etc. He, the said de- fendant, then and there agreed with, and faithfully promised to the said plaintiff to pay the said plaintiff the sum of one thousand dol- lars as a remuneration for his services and loss of time, in using his exertions to obtain from the said governor of Pennsylvania a pardon, etc. ; and the plaintiff avers that afterwards, to wit, at, etc., the plaintiff did use all fair and honorable exertions to obtain, etc., and that by reason thereof the defendant became indebted to pay the said sum of one thousand dollars so by him promised, yet although often requested, etc. The second count states that the defendant was indebted to plain- tiff in other one thousand dollars for services performed in obtaining from the governor of Pennsylvania a pardon for, etc., and being so indebted, promised, etc. The third count charged that defendant was indebted to plaintiff in one thousand dollars, for money paid, laid out, and expended, etc., not mentioning the crime or pardon. Afterwards another count by leave of the court was filed, setting out at large the indictment, trial, conviction and judgment as in the first count, and imprisonment under the sentence ; and that the said 72 SUBJECT-MATTER. Adolph required the said Daniel to labor, and do his endeavor to obtain his, the said Adolph's pardon from, etc. ; and that after- wards did, b}' all the means he could, and by riding and journeying in the county of Berks, and to and from Harrisburg, etc., use all his endeavors to obtain, etc. ; by reason of his exertions, riding, journey- ing and many days' labor, reasonably deserved to have other one thousand dollars, etc. Plea, non assumpsit, and issue. The proof in the cause was various, and not a little of it. W. Lewars, J. S. Hollo- way and Shoemaker proved that Hatzfield said he would satisfy Gulden ; one of them that he made his promise while still in the penitentiary, and two of them that he said so after he was pardoned. J. Baily proved that he and a Air. Sontag were appointed a commit- tee of Hatzfield's property. That Gulden applied to them, offered to go through the county to get signers. That they agreed to pay him one hundred dollars in hand, and another one hundred dollars if he got him liberated, in September, 1834 ; paid the one hundred dol- lars ; also gave him fifteen dollars in August, 1834; and also fifteen dollars in March, 1835 ; he was to obtain above twelve hundred signers to the petitions ; but did not get so many. Hatzfield was Hb- erated in April, 1835. P. Geiger, a member of the legislature from Berks at that time, proved Gulden's exertions ; witness went with him to the governor ; that he wished witness to get signers ; said they would pay so much a head ; witness got signers, but said he did not want pay. Another witness proved that Gulden gave him fifteen dollars to pay Snell, who would not give up his petitions and signers till paid. Peter Bright proved that he got in Reading between four and five hundred signers, at the request of Gulden and Snell ; and he was to have three cents a head. The above is the substance, with the addition that many refused to sign, etc. ; some proof of expenses paid by Gulden for horse hire to the amount of from ten to fifteen dollars. The court told the jury: "There can be no recovery on an illegal contract, neither can there be a recovery on contracts which are prohibited by law ; nor on contracts against which penalties are en- joined ; nor a party cannot successfully come into court and say, 'Give me a sum of money which I claim, against or in violation of law.' This would not be tolerated nor countenanced ; but I am not aware that it is unlawful to obtain a pardon by lawful means." And again : "If the defendant did employ the plaintiff to travel and spend time in procuring signatures to petitions, and to go and carry these petitions to the governor, and promised to pay him for his time, labor and trouble in performing this service, I think he can recover a reasonable and just compensation therefor." The first three errors were in entering judgment for the plaintiff: because on these pleadings judgment should have been entered for the defendant ; that the court ought to have told the jury that on /3 he same in substanct. " t to which the ^ liing' was said al . , cdSK: was put on the j; • : ; be it so ; but perhaps on illegal or immoral decency, or public good ,; on on the evidence of the ujustice or general p '' ^ ; ' i \i; perhaps there is 'lable by the mo^' - used to carry ii >y law, marriage, oroi■■ •l"- ■.•'I.-:i.n .-> ,;' ' wer to pardon .. : .1 ,.- --here p..-i 1; i|.)> uir.i; ■ '11 L^.'iit iimitted under circui. xtenuat- :;)'jral and ^ ^ oi opin- .0 have, wei- r. But if leans are used 10 obtain petitioners, it may be a great im- I'U ;be p' ■■ ernor. Ion ma idered as a part of the • ...,..,.,, rial to be sure, ' • ----"'i i)ortant that it - MATTER. ;o labor, and do his ion from, etc. ; and lid, and by riding an a to and from Harrisburg-, et' i)y reason of his exertions, rid ■■-, reasonably deserved ti i, non assumpsit, and issi. ' not a little of it: W. Le\. ed that Hatzfield said ':■ a he madt' bic promise ,em thai ' -o after ' .] a Mr, ,, \-erc apr Gulden api ... .,,, . signer-^ 'i'ir in hand, an(' nor ; that he wished :> much a hen ' ■ ^' " lother witnc < t8;U endeavor to ♦'rer- Ing • his ;ey- "»ne '' in ati ;,ed. mit- ■red l)ay 'iars iir.iM !•. ci! dol- d also fifteen !ve hundred I eld was lib- H-Q from :' with ^aid .>,ui lit. did • him fifteen au'l butii ; ana c. snijstance, with --ign, etc. ; some proof of expenses ■ c-;i;i ue H' - rocxnciy nn :r,i iiei^ai recovery on contracts whicli are gainst which penalties are en- lly come into court and say, ; claim, against or in violation of '. nor couni i-i''.ir.iTd : 1.r.l I ;i'n not o obtain a pardc •X did employ .tln^ ^ ..u. ■ ignatures to petitions, an- )r, and promised r forming thi? «;( > .. . and ixl carry - his can bec h prohibits him from making her his attorney to sign th. and ^\ > are net av\ are ih:^' rule or principle exists. 2. '■ Ti?t said \jary i> not set forth, nor has she any 'Orney to sign said bill in behalf of Jefferson Burns." It is no allegation of a power of attorney, nor is such alle- ary. The husband is named as plaintiff in the bill, she : .i on his b*^^^''-' '••"' '— '^-■'^'.'-- f.-. ,..-, .:..,-^.r,=, j^-. ^u^j ^his is .■:.'■; -'t. ' ' '' Jeftevirii i.\;r.'iS luis m. ■ ..r swor r nf tjie sip^"?itnrp is aire '-»sed of. hardly , not he sworn to. 1 T': , to the n-crit? of th^ <: 01 ihen-; i>eing that Mar lie seeks. ". But anoth .g which dollars; through the :.ot from pity, not from a . . ... i, not from friendship to and emolument. At his last inter- i> ' : ., ..I. ., witness a promise of aiier the whole : 1 some postage. Tied a petition, the sis.^ may not receive his a*., ist be a very special ' '' a case; and we <; be obtained at > lo it; and general!;,, . the effects of trials, whether to obtain y to the jailer, or to obtain a par- ■.>r indirectlv, must be void. men and -, to . o see St price, ontracts to .ox, 31 N. !?reernent CHAPTER IV. CREATION OF AGENCY. Section 1. — Authority to Execute Sealed Instruments. BURNS AND Wife v. LYNDE. 1863. Supreme Judicial Court of Massachusetts. 6 Allen 305. Bill in equity praying that the defendant might be ordered to re- convey to Mary Burns, the female plaintiff, her interest in certain real estate. The defendant filed a demurrer, which was overruled; and the case was heard by Merrick, J., who, after deciding that the said Mary was entitled to the relief prayed for in the bill, and that a decree to that effect ought to be made, reserved it for the final de- termination of the whole court. The case is stated in the opinion. Chapman, J. The demurrer having been overruled, and the cause heard upon the evidence, all the matters in controversy are now be- fore us, as well upon the demurrer as upon the merits of the case. The causes of demurrer assigned are as follows : 1. "That said bill had not been properly signed by the plaintiffs, but is signed by said Mary Burns alone." It is in fact signed "Jeffer- son Burns, by Mary Bums," and "Mary Burns." No rule is referred to which prohibits him from making her his attorney to sign the bill, and we are not aware that any such rule or principle exists. 2. "That said Mary Burns has not set forth, nor has she any power of attorney to sign said bill in behalf of Jefferson Burns." It is true there is no allegation of a power of attorney, nor is such alle- gation necessary. The husband is named as plaintiff in the bill, she has signed it on his behalf, and he appears to prosecute it ; and this is sufficient. 3. "That said Jefferson Burns has not signed or sworn to said bill." The matter of the signature is already disposed of ; and it is hardly necessary to say that a bill need not be sworn to. 4. The other causes assigned relate to the merits of the case, the substance of them being that jNIary Burns is not entitled to the relief which she seeks. 5. But another formal cause was alleged at the hearing which 75 76 CREATION. should be considered here. It is contended that, as the remedy sought is only for the wife, the husband is improperly joined with her as plaintiff. Though a married woman may bring a bill for the protection of her separate interests without joining her husband, and may, in a proper case, make him a defendant, yet it is proper for her to join him as plaintiff with her in a case in which he has no interest. This is because he is the natural protector of her interests, and is in con- formity with the rule of law. Story Eq. PI., § 63. We are brought, then, to the question whether, vipon the allega- tions of the bill and the case as reported, ]\Iary Burns has established her claim to the relief sought for. The object of the bill is to set aside a deed, as to her, which pur- ports to be an absolute warranty deed of the land described in it, executed and acknowledged by her husband ; and also executed by herself, for the purpose of releasing her rights of dower and home- stead in the land. It appears by the report that when her seal and signature were affixed to the paper it was a printed form of a deed, in which none of the blanks had been filled up. She gave it to the defendant, who filled the blanks in her absence, by writing the names of the parties, the description of the land, the agreement of release on her part, and also the date and the other words necessary to com- plete it. After being thus filled, it was executed and acknowledged by her husband. The defendant offered to prove that when she signed it she authorized him to fill it up as he did ; and that after it was filled up, and the husband had executed it, the defendant in- formed her of the facts, and she thereupon verbally assented to what had been done, and agreed that it should be taken to be her deed duly executed. This evidence was rejected ; and the question presented is, whether these facts, if proved, would have made the instrument valid as her deed. The ancient doctrine of the common law, as stated in the authorities cited by the plaintiff's counsel, is not denied. It is stated in Shep. Touchstone, 54, as follows : "Every deed well made must be written ; i. e., the agreement must be all written before the sealing and delivery of it ; for if a man seal and deliver an empty piece of paper or parchment, albeit he do there withal give command- ment that an obligation or other matter shall be written in it, and this be done accordingly, yet this is no good deed." This doctrine still prevails in England. The case of Texira v. Evans, which was tried at nisi prins, is cited in Master v. Miller, i Anstr. 228, in which Lord Mansfield held a contrary doctrine. In that case the defendant, wishing to raise money, had signed and sealed a bond, and placed it in the hands of an agent, with blanks for the sum and the name of the obligee. The agent borrowed the money of the plaintiff, and filled up the blanks with the sum borrowed and the name of the plaintiff. The deed was held good. But in Hibblewhite v. M'Morine, 6 M. & W. 200, the question arose in respect to a convey- EXECUTli ion the conveva r, II M. ill "of ex- Fexira v. IS said 771, ,•!.-:,,,. . Tity ot . .V V. ,-11. WiL,> . . in New York in le siiip, d tnat tile bill ot sale 11-.CC t'i:.- "T.-,ri,v+-.. ■ ks. ■. iJrre liie d: ■ rdih V. '.. '-' 'i rtn^i ^material. In Hunt I was a - did IT" oeoi' varic \\'Ji:;oiii imnu itied with ection of — in a join T int'^-. (Jower :iiul hor/ic • vlicn her seal and •r it was a t rm of a deed, :v-pn rii,-,- . ■..••vo it to the the name? ter it : ut in- '•nted to what her deed duly 1 presented is. ■ uid iiavc;::acle mc ir ^' valid of the c^niiTion ]'■ led in It is •nnde lent must be all iimmand- d and the I'e white v. a convey- EXECUTION OF SEALED INSTRUMENTS, jy ance of railway shares which was required by statute to be by deed. The name of the purchaser had been left blank, and was written by him after the conveyance to him. The point was thoroughly argued, and most of the English cases which had any bearing on it were cited. Upon full consideration the conveyance was held to be void. The case of Tepira v. Evans was overruled. Parke, B., remarked that it had been justly questioned by Mr. Preston in his edition of Shep- pard's Touchstone, "as it assumes there could be an attorney with- out deed." And he says of the defense in that case that it is an at- tempt to make a deed transferable and negotiable like a bill of ex- change or an exchequer bill, which the law does not permit. In Davidson v. Cooper, ii M. & W. 793, the case of Texira v. Evans is again referred to and is declared to be overruled. But the defendant's counsel contend that the English doctrine does not prevail in Massachusetts, New York and Pennsylvania. It is true that in the latter state the authority of Texira v. Evans is adopted, and the case is said to have overruled the authority of Shep- pard's Touchstone, Perkins and Coke upon Littleton. Wiley v. Moor, 17 S. & R. 438. It has also been adopted in New York in Wooley V. Constant, 4 Johns. 54. In that case, a bill of sale of a ship had been executed, leaving blanks for the recital of the register ; and these were filled up after the delivery, by consent of parties. It was held to be valid, on the authority of Texira v. Evans. But the action was trover for the ship, and the court remarked that the bill of sale was perfectly competent, with the blank in it to pass the property. The same case was again cited as authority in Ex parte Kerwin, 8 Cow. 118, where the bond would not have been valid without filling the blanks. None of the cases decided by this court adopt the authority of Texira v. Evans, though some of them give some countenance to its doctrines. In Smith v. Crooker, 5 Mass. 538, a treasurer had made a bond in which the name of the surety had been left blank ; and after delivery it was filled up. The bond was held good, on the authority of several ancient cases, the fact being specially noticed that the alter- ation was immaterial. In Hunt v. Adams, 6 Mass. 519, the instru- ment in question was a promissory note, not under seal, and there- fore the question did not arise. The immaterial word "year" had at first been omitted, and was afterwards inserted. But Parsons, C. J., in giving the opinion, cited the authorities relating to deeds, which he had before cited in Smith v. Crooker, and also said that in custom- house bonds it was the practice to leave a blank for the amount of the duties when ascertained, to be filled after delivery, the obligors being considered as consenting that the blanks shall be thus filled up. The case of Warring v. Williams. 8 Pick. 322, decides that where an instrument was signed by several parties, and afterwards altered by the addition of a seal and the interlineation of the words "jointly and severally," a party to the instrument who was present and consenting 78 CREATION. to the alteration would be bound by it, though the others were not bound. But in the very next case of Warring v. Williams, lb. 326, which was an action brought against another party to the same in- strument, it was held that a signature in blank does not authorize anything to be written over it beyond a simple contract, and that au- thority to affix a seal requires a power of attorney under seal. Par- ker V. Hill, 8 Met. 447, merely decides that a ratification of the de- livery of a deed may be proved by the acts and declarations of the grantor, and that his declarations made to a person who is not a party to the instrument are admissible in evidence. The editors of the American edition of the Exchequer Reports, in a note to Hibble- white V. M'Morine, cite some of the above cases, and also the case of Adams v. Frye, 3 Met. 103. as adopting the doctrine that blanks left in a deed may be filled by consent of parties, after delivery. But the case of Adams v. Frye relates altogether to a different point. The alteration there considered was not the filling of a blank by consent, but procuring a person to subscribe his name as a witness after de- livery, and without consent. The court held that it would not avoid the deed unless fraudulently done. Gardner v. Gardner, 5 Cush. 483, cited for the plaintiffs, decides that a deed, signed for the grantor in his presence, and at his request, is good without a power of attorney. Its value as bearing upon the question before us is, that it states accurately the distinction between acts done in the presence and by the direction of the principal, and acts done in his absence. The former are regarded as by the prin- cipal himself and the instrument need not purport to be executed by attorney, while the latter must be done under a power, and must pur- port to be so done. According to this distinction, it is held in Eng- land that where a deed is delivered containing blanks to be filled up, they may afterwards be filled in the presence and by the direction of the grantor, and the deed is valid. This is on the ground that such acts are equivalent to a redelivery of the deed in a perfect state by the grantor. Hudson v. Revett, 5 Bing. 368. The filling of the blanks in his presence and by his consent is equivalent to filling them by his own hand ; the deed is then under his own control, and may be delivered as a perfect deed. From this review of the cases decided in this court, it is apparent that they contain nothing decisive of the point before us. Smith v. Crooker is the most favorable to the defendant's views of any of them; but it does not go further than Eagleton v. Gutteridge, 11 M. & W. 466. In that case a power of attorney had been executed abroad, and sent to the attorney with a blank for his Christian name. He filled the blank, and this act was held not to invalidate the instru- ment. But this decision was made by the same court that overruled the case of Texira v. Evans, and at the term prior to the decision of Davidson v. Cooper, and must have been regarded as consistent with that case, and with Hibblewhite v. M'Morine. If the filling of the blank is no! . . uf ciic instruirjCtii, ii inLT to thai L raith v. Crooker, be f^ uv-ry. ill tlie present case, there was no redelivery of the instrument after the blanks were filled. All that the defendant offered to prove was, thra he communicated the facts to Mrs. Burns, and she assented to . i^-^t he had done, and consented that he mi^ht hold it as her deed. ••d had been ; r at the time, and she made fully a > by rerxdipcr or other- . ' e. and had it under her control, and had then ; -^ rndant should take it as her deed, it would have . "ed in a perfect state. But witliout the presence of the deed, n '■■n:; equivalent to this could take place. ■- : • ^ the paper was delivered, it had no validity or meaning. The ■ the blanks created the ' "1 parts of the instn:. much so as the signing ^;-. If such an act c:. er a parol agreement, in iu<: dusence of the grantor, its ef- r be to overthrow the doctrine that an authority to malce a 1 must be given by a deed. We do not think such a change of the . '! :2nt common law has been made in this commonwealth, or that policy of our legislation favors it, or that sound policy would ite such a change. Our statutes, which provide for the convey- :■.:, c of real estate by deed, acknowledged and recorded, and for ^he ' i ■; '.rnent and recording of powers of attorney for m: ■ ■■'■<: ii \ idently based on the ancient doctrines of the con law respecting the execution of deeds ; and a valuable and important nnr])ose which these doctrines still serve is, to guard against mistn' --= ' .:h are likely to arise out of verbal arrangements, from misui •cling and defect of memory, even where there is no fraud, i nt: •' sent case shows how dancrerous the contra rv doctrine would be. '■'' vy Burns sta - - - -cement • •;n her and t': in her b. ; ; should be held to indemnify the persons who should become bail liis appearance at court, and for no other purpose, and that the ■ was filled up as an absolute conveyance, contrary to this agree- "■^•he makes oath to the truth of these allegations, and it is to med that she believes them to be true. The defendant of- 'e the contrary ; and probably he v ' ■ e been a wit- - his statement. It '? to be prfc-. t^^^ ^r> under- reement. If thi ;1 follow that, th- outed deed, yet it reijiains to be settled by parol eviden (v.o!.*- <.-. 's-ve been the. grantee, what bv^^ ~i,-..-,i.! u 1 !her the deed should have be .at a over ■'■'- tne others were not , V. Willinnr; fb. 326, iitr party to ■ blank does u simple contract, arsci tliat au- al. Par- r the de- ls of the is not a e case 01 'anks left But the int. The of attorney rs that a rat; :iui} !) : ■ .he acts and < )t his d . made to a pev h- in evi-' ' r Repor, 01 the above cases, a; > adopting the doctri: • sent of parties, after s altogether to a dific IS not the filling of a blank hv consent, as a wit- iat it wo . i V dune. Cush. 483, cited (or {ho. Dlaintiffs, decides • grantor in i t his request, ..1 of attorr that it state and bv The f. u, rding ro th it is held in Eng- - delivered co:.^.. ....... .,,aaks to be filled up, iiiled in the presence and by the direction of ] is valid. This is on the ground that such ^'delivery of the deed in a perfect state by Revett:, ' 368. "" ' ■ • ]:-v h{? \ equiva! .. 1 ider his own control, and may led in this court, it is apparent ' the point before us. Smith v. the defendant's ^dews of any of - ' - . •. , ^j_ uted verruied cision of i.ent with :g of the EXECUTION OF SEALED INSTRUMENTS. 79 blank is not material to the validity of the instrument, it may, accord- ing to that case and the case of Smith v. Crooker, be filled after de- livery. In the present case, there was no redelivery of the instrument after the blanks were filled. All that the defendant offered to prove was, that he communicated the facts to Mrs. Burns, and she assented to what he had done, and consented that he might hold it as her deed. If the deed had been present and exhibited to her at the time, and she had been made fully acquainted with its contents by reading or other- wise, and had it under her control, and had then consented that the defendant should take it as her deed, it would have been legally de- livered in a perfect state. But without the presence of the deed, nothing equivalent to this could take place. When the paper was delivered, it had no validity or meaning. The filling of the blanks created the substantial parts of the instrument itself ; as much so as the signing or sealing. If such an act can be done under a parol agreement, in the absence of the grantor, its ef- fect must be to overthrow the doctrine that an authority to make a deed must be given by a deed. We do not think such a change of the ancient common law has been made in this commonwealth, or that the policy of our legislation favors it, or that sound policy would dictate such a change. Our statutes, which provide for the convey- ance of real estate by deed, acknowledged and recorded, and for the acknowledgment and recording of powers of attorney for making deeds are evidently based on the ancient doctrines of the common law respecting the execution of deeds ; and a valuable and important purpose which these doctrines still serve is, to guard against mistakes which are likely to arise out of verbal arrangements, from misunder- standing and defect of memory, even where there is no fraud. The present case shows how dangerous the contrary doctrine would be. Mary Burns states in her bill that the verbal agreement made be- tween her and the defendant was. that her interest in her husband's land should be held to indemnify the persons who should become bail for his appearance at court, and for no other purpose, and that the deed was filled up as an absolute conveyance, contrary to this agree- ment. She makes oath to the truth of these allegations, and it is to be presumed that she believes them to be true. The defendant of- fered to prove the contrary ; and probably he would have been a wit- ness to prove his statement. It is to be presumed that he so under- stood the agreement. If this method of executing deeds is sanc- tioned, it will follow that, though the defendant has a regularly exe- cuted deed, yet it remains to be settled by parol evidence whether he ought to have been the grantee, what land should have been de- scribed, whether the deed should have been absolute or conditional, and if conditional, what the terms of the condition should have been. To leave titles to real estate subject to such disputes would subject them to great and needless insecurity. 8o CREATION. And in respect to agreements which do not relate to real estate, it is highly useful that a class of instruments should exist, to which persons may resort with a feeling of confidence that they shall not be binding till they are formally executed, and that when thus exe- cuted they shall not be liable to be varied or controlled by parol evidence. The importance of these formalities is greatly increased by the fact that parties are now made competent witnesses. The convenience which men might occasionally find in leaving blanks in sealed instruments to be filled after delivery, would be but a slight compensation for the evils which would follow the abrogation of the ancient rule of the common law. The deed not having been executed by Mary Burns must be re- garded as void, so far as her estate is concerned. It is valid as to her husband, so far as he could by his sole deed convey land in which a right of homestead existed ; that is, it conveyed his reversionary interest after the termination of the homestead estate. Smith v. Provin, 4 Allen 516. As to the homestead estate and the Avife's right of dower, the deed constitutes a cloud upon the title, and a bill in equity lies to remove such cloud, in cases where there is not a plain, adequate and complete remedy at law. 2 Story on Eq. 700 ; Hamilton v. Cummings, i Johns. Ch. 517; Scott v. Onderdonk, 4 Kernan i. It is obvious that Mary Burns could not maintain an action at law in respect to her right of dower ; and as she is in occupation of the premises, living in the dwelling house, she could not, without aban- doning the possession, maintain a writ of entry in respect to her right of homestead. Stearns on Real Actions, 215, 216. Her only remedy is in equity. The defendant contends that she has no equity which the court should enforce, until she pays his claim against the husband, being an account for services and expenses in defending the husband in several criminal prosecutions, and for supplies furnished to the family. But the contract of a wife to become responsible with her husband as surety for the payment of his debts has no legal validity, and should not be regarded as valid in equity. We cannot extend her liabilities beyond the point where our recent legislation has carried them. A decree should be entered that the defendant execute to Mary Burns a release of all the rights of dower and homestead which the deed purports to convey to him, to be framed according to the direc- tion of the court; and that the plaintififs recover their costs of suit.^ ^Accord: Preston v. Hull, 23 Gratt. (Va.) 600; Gilbert v. Anthony, i Yerg. (Tenn.) 69. Compare with these cases Upton v. Archer, 41 Gal. 85. Contra: Cribben v. Deal, 21 Ore. 211; Allen v. Withrow, no U. S. 119. See also Bridgeport Bank v. New York, etc., R. Co., 30 Conn. 231, 274. See Daniel on Negotiable Instruments, §§ 142-147, regarding authority to fill blanks in negotiable instruments. . SEALED INSTRUMENTS. . RALL V. MUNN and A. RT OF Appeals of New York. 5 N. Y. 229. om the general term of the s . de- .: vice-chancellor of the " ' - .' of a contract for the s?' lihout prejui, .-Mcdy ^'. vas a bill m equity < li Worrall against the pecific performance c •rstraw, Rockland cou;..;. defendant, Prall, by contract undr • 27th of ' er, 1843, agreed to convey to the piamiin, l lIic first day of April then next, the lands in que •:• ui $4,500, the sum of $500 to be paid On the dehvery r , and the balance to remain on bond and mortgage, at the K per cent., payable on or before the expiration of three ^he date of said* deed. A counterpart of the agreement ■.... <\ by "Henry Worrall, for Noah Worrall," the seal being af- : ai the end of Henr}- Worrall's name. rail subsequently refused to perform the agreement and, on the ! of December, 1843, contracted to sell the lands to the defend- j\Iunn for $5,500. The latter purchased with full notice of the ntiflP's rights, and gave Prall an indemnity against Worrall's n the 22d of December, 1843, ^^^ plaintiff tendered to Frail a 1. and mortgage, and the first payinent specified in the agreer^-^^^^ demanded a deed and offered to have the deed and bon^^ ',e bear even date with the agreement, and, if desired by- h'v^ii. ''■■m the whole considcrati<^n • ?.nd <^n the ist of April, 1844, ; •" made a like tender r n; both of which iefendants, by their answers, set up certain objections to the which, with other" facts proved on the hearing, are fully the opinion of the court. The case was brought to a hear- 'lie vice-chancellor of the second circuit, on the 1 ' ' ' who decreed a specific performance. From th: 'to the supreme court, where the decree was rc- : J Lidice to any remedy at law, which the corr- t have against Prall upon his agreement for dam,:: '^■f^reupon tc^V- <' i- ■mf.'-Ti * * not dealing with the question of . \ 1 ", I III I I ..J UL-l I .r is hisj-hly useful \ r)v ih^ should exist, to which uce that they shall not v.d that when thus exe- or control kaI by parol :;os is gre/'' , increased competent . The ' '''"i'l •'■■ ■' . ianks in ■It a slight ■ n;ij\v liiv '..^'•iiuatioa of the terest after ; - •-, 4 All ■ f dower. ' on V. C UX I. ,-, obvious 'lect to hi. -OS, livin: , the po' ■ f honie'^ . (i by ]\T ill St be re- ■ is conc'. ; . alid as to -. sole dc^ iand in which 3, it CO. . . reversionary le home ite. Smith v. nnestead v-i.i..^ and the wife's I cloud upon the title, and a bill here there is not a >tory on Eq. 700; Onderdonk, 4 at law of the a ban- to her • only .> hich the court ' imi against the husband, being s in defending the husband in for supplies furnished to the to become responsible with her '■ his debts has no legal validity. 1 in equity. We cannot extend lere our recent legislation has the coi fill blii the defendant execute to Mary 'jf dower and homestead which the > ^-e framed according to the direc- ;iffs recover their costs of suit.^ , a.) 600; Gilbert v. Anthony, I Yerg. on V. Archer, 41 Cal. 85. Oic. 211; Allen V. Withrow. no U. S. 119. irk, etc.. R. Co., 30 Conn. 231, 274. ents, §§ 142-147, regarding authority to EXECUTION OF SEALED INSTRUMENTS. 8 1 WORRALL V. MUNN and Another. 1 85 1. Court of Appeals of New York. 5 N. Y. 229. Appeal from the general term of the supreme court, where a de- cree of the vice-chancellor of the second circuit for the specific per- formance of a contract for the sale of lands, had been reversed, and the bill dismissed, without prejudice to the complainant's remedy at law for damages. This was a bill in equity exhibited in the late court of chancery by Noah Worrall against the defendants, Munn and Prall, to com- pel the specific performance of a contract for the sale of certain lands in Haverstraw, Rockland county. The defendant, Prall, by contract under seal, dated the 27th of November, 1843, agi"eed to convey to the plaintifif, by deed, on or before the first day of April then next, the lands in question, for the price of $4,500, the sum of $500 to be paid on the delivery of the deed, and the balance to remain on bond and mortgage, at the rate of six per cent., payable on or before the expiration of three years from the date of said deed. A counterpart of the agreement was executed by "Henry Worrall, for Noah Worrall," the seal being af- fixed at the end of Henry Worrall's name. Prall subsequently refused to perform the agreement and, on the nth of December, 1843, contracted to sell the lands to the defend- ant Munn for $5,500. The latter purchased with full notice of the plaintiff's rights, and gave Prall an indemnity against Worrall's claim. On the 22d of December, 1843, the plaintiff tendered to Prall a bond and mortgage, and the first payment specified in the agreement, and demanded a deed and offered to have the deed and bond and mortgage bear even date with the agreement, and, if desired by Prall, to pay him the whole consideration; and, on the ist of April, 1844, the plaintiff made a like tender and offer to Munn ; both of which were refused. The defendants, by their answers, set up certain objections to the contract, which, with other facts proved on the hearing, are fully stated in the opinion of the court. The case was brought to a hear- ing before the vice-chancellor of the second circuit, on the pleadings and proofs, who decreed a specific performance. From this decree, Munn alone appealed to the supreme court, where the decree was re- versed without prejudice to any remedy at law, which the com- plainant might have against Prall upon his agreement for damages. The plaintiff thereupon took this appeal. Paige, J. — ^ * * * The only remaining questions to be considered are, whether the ^ A portion of the opinion not dealing with the question of appointment is omitted. 6— Reinhard Cases. 82 CREATION. authority of Henry Worrall to execute the counterpart should have been under seal ; whether he executed the agreement in the name of his principal ; and if the counterpart was not binding on Noah Wor- rall, whether the original was binding on Prall. It is a maxim of the common law that an authority to execute a deed or instrument under seal must be conferred by an instrument of equal dignity and solemnity ; that is, by one under seal. This rule is purely technical ; a disposition has been manifested by most of the American courts, to relax its strictness, especially in its application to partnership and commercial transactions. I think, the doctrine, as it now prevails, may be stated as follows, viz., if a conveyance or any act is required to be by deed, the authority of the attorney or agent to execute it must be conferred by deed ; but if the instrument or act would be effectual, without a seal, the addition of a seal will not render an authority under seal necessary, and if executed under a parol authority, or subsequently ratified or adopted by parol, the instrument or act will be valid and binding on the principal. It is said that the rule as thus relaxed is confined in its application to transactions between partners ; but it seems to me that a distinction between partners and other persons, in the application of the rule, as relaxed and qualified by recent decisions, stands upon no solid foundation of reason or principle. The whole authority of a partner to act for his co-partners and to bind them and their interest in the co-partnership property, is founded upon the common-law doctrine of agency ; so far as he acts for his partners, he is an agent. (Story on Part., § i.) Thus, it is a general rule of the common law that one partner cannot, from the mere relation of partnership, bind his co-partners by deed or instrument under seal, even in commercial dealings, unless specially authorized to do so by an instrument under seal. (Story on Part. § 117; 3 Kent Com. 47, 6th edition.) This rule springs from the common-law maxim before mentioned, applicable to the general re- lation of principal and agent. There are numerous cases in the American courts in which the rule has been relaxed as regards partnership transactions, in order to adapt it to the necessities of trade. (Story on Part., § 117; 3 Kent's Com. 48.) Thus, the doctrine, as applicable to partners, is now firmly established that wherever an act done by a partner, within the scope of the partnership business would be valid if done by an unsealed instrument, then, although done by an instrument under seal, it will be valid and bind his co-partners, if it is author- ized by a prior parol authority, or adopted by a subsequent parol ratification. (Story on Part., ^§ 121, 122; Anderson v. Tompkins, i Brock. Cir. C. 462, Marshall, C. J. ; 3 Kent's Com. 48, 6 Ed. ; Smith V. Kerr, 3 Comst. 150; Gram v. Seton, i Hall 262, Jones, C. J.; Skinner v. Dayton, 19 Johns. 513, 553 ; Everit v. Strong, 5 Hill 163 ; Tapley v. Butterfield, i Mete. 515; Cady v. Shepard, 11 Pick. 400, one partner cannot bind his co-partners by / \inder seal, has been held, in several cases. •:re one partner conveys by deed, property ol he might have conveyed by an unsealed instrumei '^■"^re addition of the seal does not vitiate the con- Butterfield, i Mete. 515; Anderson v. Tomp- K. -.^ir. C. 462; Everit v. Strong, 5 Hill 165 ; Milton v. Mete. 244.) In Gram v. Seton (supra). Chief Justice y or agent ;d ; but if rument or sf pi, the additi( A will not d under a . parol, the tn the principal. It is 1 in its application to e that a distinction -'•;■ -f the rule, 1 no solid . : o and .:> property, is ' Tar as he hus, it /•, from y deed or ;:iicss specially Story on Part. rule springs from the i1}le to the general re- :.<..^.i courts in which the ship transactions, in order i Story on Part., § 117; 3 - applicable to partners, is in act done by a partner, ness would be valid if done ,gh done by an instrument co-partners, if it is author- ited by a subsequent parol \nderson v. Tompkins, i - Com. 48, 6 Ed. ; Smith 'lall 262, Jones, C. T. t V. Strong.' 5 Hill 16,; Shepard, 11 Pick. 40 EXECUTION OF SEALED INSTRUMENTS. 83 403.) And the rule that one partner cannot bind his co-partners by deed, without an authority under seal, has been held, in several cases, not to apply to a case where one partner conveys by deed, property of the firm, which he might have conveyed by an unsealed instrument or by parol. The mere addition of the seal does not vitiate the con- veyance. Topley V. Butterfield, i Mete. 515; Anderson v. Tomp- kins, I Brock. Cir. C. 462 ; Everit v. Strong, 5 Hill 165 ; Milton v. Mosher, 7 Mete. 244.) In Gram v. Seton (supra), Chief Justice Jones, of the superior court of the city of New York, held that the authority of one partner to bind his co-partners by deed, may even be implied from the acts and acquiescence of the co-partners. No good reason can be assigned for a distinction between partners and other persons, in relation to the technical rule of the common law, that in all cases an authority to execute a deed must be by deed. The rights and liabilities of partners in their acts for each other are governed by the same rules as are the relations of principal and agent ; each partner being considered an agent for his co-partners ; and the same questions of express and implied, general and special authority must arise between partners, as between principal and agent. Upon prin- ciple, therefore, whenever an instrument, either as between partners, or principal and agent, would be effectual for the purpose intended, without a seal, the addition of a seal should not create the necessity of an authority under seal, to authorize an agent to execute it. In Lawrence v. Taylor (5 Hill 113), Cowen, J., speaking of a specialty executed by an attorney, without authority under seal, says : "Yet in such case it does not follow that it shall not operate at all ; if the contract may be made without deed the seal shall not prevent its inuring as a simple contract, though the authority be by parol, or merely implied from the relations between the principal and agent." In Skinner v. Dayton (19 Johns. 554, 558, in the court of errors), Spencer, Ch. J., held that the contract executed in that case by Skinner, under seal, for the directors of the company, ought not to be considered a personal covenant of Skinner, in equity, and that the company were liable for a breach of the covenant, although the authority of Skinner was not conferred by deed ; and such was the decision of the court of errors. Skinner was a director and the president of an association for manufacturing cotton, and entered into a contract for the making of some machinery for the company ; the contract was ratified by the subsequent parol assent and acts of the stockholders. The court decided that such subsequent ratification was an adoption of the act of the agent and equivalent to a previous positive and direct authorization to do the act. In Randall v. Van Vechten (19 Johns. 60), a contract under seal had been entered into by the defendants, as a committee of the cor- poration of the city of Albany, with the plaintiffs, without authority under seal from the corporation. But the corporation had subse- quently recognized by parol the authority of the committee to make 84 CREATION. the contract, and it was held that the contract was binding on the corporation and that an action of assuuipsit would lie against the cor- poration for its breach. In the Bank of Columbia v. Patterson (7 Cranch 299, 307), a com- mittee of the corporation, without any authority conferred by deed, had made a contract in their own names as such committee under their private seals, and the Supreme Court of the United States held that as the whole benefit of the contract resulted to the corpora- tion, and as the corporation had, by its acts, subsequently adopted the contract an action of assumpsit would lie on the contract against the corporation. In White v. Cuyler (6 T. R. 176), where a wife, unauthorized by her husband, made an agreement under seal with a servant, provid- ing for the services, it was held, that although the covenant of the wife could not bind the husband, the servant could nevertheless main- tain assumpsit against the husband. In Damon v. Granby (2 Pick. 352), it was decided that although an agent who contracts for the use of a corporation, under his own seal, does not bind the corpora- tion by the deed, yet if he had authority to make the contract, it shall be binding on the corporation, as evidence of such contract. In Evans v. Wells (22 Wend. 340, 341), Senator Verplank said that these rules as to sealed instruments were not applicable to cases where a deed is not necessary, and that in such cases, an act of the agent, under seal, may be ratified by acts in pais. In Hanford v. McNair (9 Wend. 54), an agent had executed a contract under seal, for the purchase of timber, not being authorized by deed : Sutherland, J., said, that subsequent acts of the princi- pal, recognizing and carrying the agreement into effect, might be sufiicient to make the contract binding on the principal as a parol contract. In Blood v. Goodrich ( 12 Wend. 527) and in Hanford v. McNair (9 Id. 54), the supreme court, in laying down the common- law rule that an authority to execute a deed must be conferred by deed, did not advert to the distinction between cases where the con- veyance or contract must be made under seal, and cases where they would be effectual without a deed. These authorities show that there is no distinction between partners and other persons, in the applica- tion of the modern rule, that wherever an instrument would be ef- fectual, without a seal, it will be valid and binding on the principal, although executed under seal by an agent, without authority by deed, if authorized by a previous parol authority or subsequently ratified or adopted by parol. In this case a seal was not necessary to the validity of the contract for the sale of the lands at Haverstraw. All that the statute of frauds requires is, that a contract for the sale of lands shall be in writing, and that such writing express the consideration, and be subscribed by the party by whom the sale is made, or by his agent lawfully au- thorized. The authority of the agent may be conferred by parol ; EXlC. ilON OF SEALED INSTRL Tjeitber a written authority nor an authority under seal is required. ' ;. ]lr.-. Stat. 135, §§ 8 and 9; 10 Paige 386; 5 Hill 107.) It results le foregoing authorities that the counterpart of the agreement d by Henry Worrall, under seal, was binding on his princi- p:il, although his authority to execute it was not conferred by deed. * * * The decree of the supreme court must, ^-heref^re, be re- versed, and the decree of the vie Decree of the supreme court cellor affirmed.^ CROY V. BUSENBARK et al. 1880. ^ ^.'_:vrz:.:e Coup :; Tnd. 48. V,, J. — J i!c tu.iiiMaiUL :.i uu^ ^d mj j ci^i i:>ented that the Immons Buseubark, on the 26th day of April, 1875, re- , a judgment in the court '■ ' ainst one Squire Clark, for ; that afterward, on the i f June. 1S75, Edwin Clark lliam J. Krug became replevin bail for the pa3nTient of such •^nt, and that at the same time some person unknown to, and L the consent of, the plaintiff, Frederick Croy, signed his name ntry of replevin bail on such judgment as co-obligor with the win Clark and William J. Krug; that an execution had been m said ' ' against the said Squire Clark, as the judg- . ;ebtor, z- ■■t the said Edwin Clark, William J. Knig the plaintiff, a^ replevin bail, and placed in the hands of \^ ' effect of seals has bee; Code of Iowa (1897), ' '■i\ 4041 and 4042; 25 Am. .i h.i'.g. L:\i ritA'' to the agent to >?xccute the writ^^ iviner been :l is insisted that it ■■' ' ' 'and the ;. f •loes not require the ag! rity to !■ / he in wr;^^-' • '-'■ ■"-■- <-' ■ - "'•■'■ > . Thedi. n : ;!-1(l r ■ . , _ , ■'r^ to the a; :• .ion, the lid this couni : ay be by •^hf^ contract •■ doe? rf^" ■-ibt aboi.it 1 rule ir.; '!jst be c v an ins; 1 is of no ^.i ample, s. . ., ;. . cipal. and in. contract*." Van Syckc 34 N.J. L. ;•■ 84 t.lu- contrar -s binding on the corporatioii ■ Ainst the cor- ■u ('/ Ci ., 307), a com- vnh' ••/ authc : iTed by deed, ha^^ II names as ?ii;ii committee under •■i- ■.i-me Court of the United States ■ntract rcMilted to the corpora- acts, subsequently adopted the He on tlie contract against the where a n'ife. unauthorized by uH'Jer seal • -vant, provid- ';''!* -iI'Ii'm; . , :venant of the vjld nevertheless main- ^ V. Granby (2 Pick. contracts for the "1 the corpora- ntract, it shall 'ank said led instr oases 'eu a rized 'ig on the principal as a parol ,.. \Vend. 527) and in Hanford v. court, in laying down the common- ■cute a deed mtist be conferred by ction between cases where the con- 'c under seal, ani' ' ' These a'.illior't 1 MS, iu the applica- nent would be ef- ■ ! binding on the principal, I rx.^^i.i, without authority by deed, I authority or subsequently ratified ^^sjary to the vahdity of the contract ■ '1 that the statute of frauii- ' lands shall be in writin;;; an nsideration, and be subscribe- by I . ; '• orhv his agent lawfully au thorize nferred by parol EXECUTION OF SEALED INSTRUMENTS. 85 neither a written authority nor an authority under seal is required. (2 Rev. Stat. 135, §§ 8 and 9; 10 Paige 386; 5 Hill 107.) It results from the foregoing authorities that the counterpart of the agreement executed by Henry Worrall, under seal, was binding on his princi- pal, although his authority to execute it was not conferred by deed. * * * The decree of the supreme court must, therefore, be re- versed, and the decree of the vice-chancellor affirmed. Decree of the supreme court reversed, and that of the vice-chan- cellor affirmed.^ CROY V. BUSENBARK et al. Supreme Court of Indiana. ^^2 Ind. 48. NiBLACK, C. J. — The complaint in this case represented that the defendant Emmons Busenbark, on the 26th day of April, 1875, r^' covered a judgment in the court below against one Squire Clark, for $863.90; that afterward, on the 28th day of June, 1875, Edwin Clark and William J. Krug became replevin bail for the payment of such judgment, and that at the same time some person unknown to, and without the consent of, the plaintiff, Frederick Croy, signed his name to the entry of replevin bail on such judgment as co-obligor with the said Edwin Clark and William J. Krug ; that an execution had been issued on said judgment against the said Squire Clark, as the judg- ment debtor, and against the said Edwin Clark, William J. Krug and the plaintiff, as replevin bail, and placed in the hands of William ^The legal effect of seals has been annulled or limited by statute in many states. See Code of Iowa (1897), § 3068; Burns' Revised Stat, of Indiana (1908), §§ 466, 4041 and 4042; 25 Am. & Eng. Ency. (2d ed.) 79. "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 land. In the former case, under the tenth section, the power to the agent must be in writing ; 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. 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 instru- ment 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 valid- ity, 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 seal having been ample, so far it becomes the act of the prin- cipal, and inures as a simple contract." Van Syckel, J., in Long v. Hartwell, 34 N. J. L. 116, 121. 86 CREATION. J. Krug, as sheriff of Montgomery county, who was threatening to levy such execution on the property of the plaintiff. Wherefore the plaintiff prayed that the said Krug, as such sheriff', might be enjoined from levying such execution upon his property, and for other relief. At the request of the plaintiff the court made a special finding of the facts. The facts, as found by the court, may be stated as follows : That a judgment was rendered in the Montgomery circuit court, in favor of Emmons Busenbark and against Squire Clark, on the 26th day of April, 1875 ; that the defendant William J. Krug, as sheriff of Montgomery county, held, and had held since the i8th day of June, 1878, an execution on such judgment for the sum of $570.67, the balance due thereon ; that said Krug had levied said execution upon the real estate of the plaintiff, and was about to sell said real estate to satisfy said execution, and would do so unless enjoined by the court in this cause; that after said judgment was rendered, to wit, on the 28th day of June, 1875, the said William J. Krug, Edwin Clark, and the plaintiff met together at the office of the clerk of the court rendering the judgment, when said clerk, by one James B. Crawford, his deputy, made the following entry on the lower margin of the record of said judgment, and at the proper place, to wit : "We, the undersigned, hereby acknowledge ourselves replevin bail for stay of execution on the above judgment for the payment of the same, together with interest and costs accrued and to accrue, June 28, 1875 ;" that the said William J. Krug and Edwin Clark signed said entry of replevin bail, and the said Edwin Clark, in the presence and by the consent and direction of the plaintiff, signed the plaintiff's name to said entry of replevin bail ; that said entry was then and there taken and approved by the said clerk in the following words, written opposite said signatures : "Taken and approved by me, J. M. Vance, Clerk. Attest, J. B. Crawford." That the plaintiff did not sign his name to said entry of replevin bail otherwise than as above stated ; that the plaintiff could not write his name and was accus- tomed to making his mark w'henhe signed his name himself. As a conclusion of law, the court held that the entry of replevin bail set out as above was valid against and binding upon the plaintiff, and that he was not entitled to the relief prayed for in his complaint. To this conclusion of law the plaintiff excepted, but, nothwithstand- ing, the court rendered judgment thereon in favor of the defendants. The only question presented here is, did the court err in its con- clusion of law from the facts as found by it? Section 421 of the code, 2 R. S. 1876, p. 202, which has reference to the recognizance of bail for the stay of execution, provides that "The recognizance shall be written immediately following the entry of the judgment, and signed by the bail." The act, in relation to the construction of statutes, enacts that "The words 'written' and 'in writing' shall include printing, litho- graphing, or other mode of representing words and letters. But in SEALED I NSTRUM ENl . v ignature '"f ??r.y person is required, th- ng of such person ' vk shall be intended." I 315, § I. clause 9. point urged by the appellant, considered in its natural uirtt, applying these provisions of the statutes to the facts A by the court, he cannot be held to have siiined the recog- of replevin bail in this case, within the >■ of such : V provision?. on 51, while trerr principal by an '■'- . says : "For althougn a person cannot ordinarily sign a deed for as the agent of another, without an authority given to him i' '•• '- ; yet this is true only in the absence of the principal ; for ' il is present, and verbally or impliedly authorizes the age;.: ^ name tn the deed, it becomes the deed of the principal ; and -es, as binding upon him as if : it. The distinction may seem • and renncd ; but it proceeds upon the ground that, where the icipal is present, the act of signing and sealing is to be deemed personal act, as much as if he held the pen, and another person led his hand and pressed it on the seal." ilie rule thus announced by Story is founded in justice, and well -■<{ hf authority, and must be held to be decisive again^^ it upon the point urged by him as above. Qui facit per > il- per se, is a familiar maxim of the law, and where one p ng present, causes another to sign his name to a written ii.. : it, the signature is, in legal contemplation, in his handwriting. ■Uf, .^,-...f and only remaining point urged by the appellant i-- '''^ ■' replevin bail set out in the special finding is inopc rficient form to bring it within the substantial ] ■^tp : hut that objection is fully answered by thr V. Cockrum, 64 Ind. 229. in ice of replevin bail v/as held nd binding upon tnose who signed i* udgment is aflfirpT '■ ^ iM. «.■,<; •> unable f; or other cause ill f--- >;■ squired bv ]n\v '- it is not • ce. The .ICl Oi anothc: •t. 29 Pa. St. I S6 T. Kriiff. ns sheriff of M-" . ..:e a nay be ntjijomer rquire ( illiam J. ■Id sitic ,.'rient fo- ag had nd was ; n!,1 ,1.- ^s threatening to tore the . : '.njoined and for oMier relief. I i: r ndnicr of the coun Mii'L, in he 26th ■ .riff of '.67, aion aid real ... . .joined by was rendered, to wit, j. Krug-, Edwin ■' the clerk of the ne James B. ' ">v'er margin t: "We, ff'r stay 'Hie. '■aid md . \ii\ iien and . '^ words, ■ and approved by me, J. •- i.x\v joi\i. ■ That the plaintiff did not replevin bail otherwise than as above 1 not write his name and was accus- en he signed his name himself. court held that the entry of replevin . ' against and binding upon the plaintiff, d to the relief prayed for in his complaint. ^''v plaintiff excepted, but, nothwithstand- ent thereon in favor of the defendants. 're is, did the - - ■'- cov.- ■und by it? ,^. b. 1876, p. 20^ r the s*:ay of ex ' mediate" srai \ of statute- ' ^.iall include pi- .....^. i;Li._: iig words and letters. But in EXECUTION OF SEALED INSTRUMENTS. 87 all cases where the written signature of any person is required, the proper handwriting of such person or his mark shall be intended." 2 R. S. 1876, p. 315, § I, clause 9. The first point urged by the appellant, considered in its natural order is, that, applying these provisions of the statutes to the facts as found by the court, he cannot be held to have signed the recog- nizance of replevin bail in this case, within the meaning of such statutory provisions. Story on Agency, page 57, section 51, while treating upon the gen- eral power of an agent to bind his principal by an instrument in writ- ing, says : "For although a person cannot ordinarily sign a deed for and as the agent of another, without an authority given to him under seal ; yet this is true only in the absence of the principal ; for if the principal is present, and verbally or impliedly authorizes the agent to fix his name to the deed, it becomes the deed of the principal ; and it is deemed, to all intents and purposes, as binding upon him as if he had personally sealed and executed it. The distinction may seem nice and refined ; but it proceeds upon the ground that, where the principal is present, the act of signing and sealing is to be deemed his personal act, as much as if he held the pen, and another person guided his hand and pressed it on the seal." The rule thus announced by Story is founded in justice, and well sustained by authority, and must be held to be decisive against the appellant upon the point urged by him as above. Qui facit per aliuui, facit per sc, is a familiar maxim of the law, and where one person, being present, causes another to sign his name to a written instru- ment, the signature is, in legal contemplation, in his handwriting. The next and only remaining point urged by the appellant is, that the entry of replevin bail set out in the special finding is inoperative, for want of sufficient form to bring it within the substantial provi- sions of the statute; but that objection is fully answered by the case of The Vincennes National Bank v. Cockrum, 64 Ind. 229, in which a much more informal recognizance of replevin bail was held to be valid and binding upon those who signed it. The judgment is affirmed with costs. ^ ^Accord: Hudson v. Revett, S Bing. 368. "If one having testamentary capacity is unable from palsy or other cause to steady his hand so as to make to his will the signature required by law, another person may hold his hand and aid him in so doing; and it is not neces- sary to prove any request from the testator for such assistance. The act is his own with the assistance of another, and not the act of another under au- thority from him." Per Curiam, Vandruff v. Rinehart, 29 Pa. St. 232, 234. 88 CREATION. Section 2. — Express Authority. PEABODY V. HOARD. 1867. Supreme Court of Illinois. 46 111. 242. Walker, J. — This was a bill in chancery, filed by Francis B. Pea- body, in the superior court of Chicago, against Samuel Hoard and Henry F. Balch, to enjoin Hoard from prosecuting an action of ejectment which he had commenced in that court against the tenant of appellant, for the recovery of eighty acres of land. It appears from the record that Henry F. Balch, prior to the 24th day of August, 1853, owned the land in controversy. That he being in im- mediate need of money, and residing in Salem, Massachusetts, on the 14th day of March (the year is not given), wrote a letter to his brother, Moses P. Balch, in which he authorized him to sell the land. He directed him to sell it, if he could get $225 for the prairie, and $25 for the timber land ; and all over that price he authorized him to retain 'for his trouble. He says : "I shall want all the money I can scrape together to pay my way through." From other evidence it seems that this letter was written in March, 1851. It further appears that Moses owned an adjoining eighty-acre tract which he had bought of one Flail, and was paying him five per cent, per month as interest on $300 of the purchase money. He was anxious to get rid of this debt, and offered to sell his own eighty-acre tract to one Smith, but he would not purchase without he could at the same time obtain the eighty acres belonging to Henry F. Balch. A sale was, however, finally made by Moses to Smith of both eighties, and it was so arranged that Smith paid Hall the $300 debt, with interest already accrued. This payment was thus made, and the $300 incum- brance to Hall removed from Moses' eighty acres, and the balance of $750 was paid to Moses in jewelry. Flail conveyed the eighty acres belonging to Moses, for which he held the legal title, to Smith, and Moses, as the attorney in fact of Henry F. Balch, conveyed to him Henry's eighty acres. It appears that Moses lived upon his and that Henry's was unim- proved land ; but it appears that Smith removed to the eighty pur- chased of Moses, and subsequently fenced the tract which had be- longed to Henry. In March, i860, appellant purchased and paid Henry F. Balch for the land, with no other or further notice than such as arises from adverse possession. In June, i860. Smith hav- ing previously died, appellant purchased the land at a sale made by Smith's administrator, and paid $96 as the consideration. Probst was a tenant, in possession under the heirs of Smith ; he subsequently attorned to both appellee and appellant, but appellee afterward brought the action of ejectment, to restrain the prosecution of which the bill was filed. ir.XPRESS AtJTHORITY. 89 ...ice discloses the fact that r^'niiri, l)€fore purchasing, ad- th aa attorney, who informc lat Moses could not valid conveyance under t^ of attorney, .-)rined him that if he purch; run the risk Uing Henry F. Balch 1- ' > adv.ice, from Moses a bond, in ■'^cure a i fropi Henry for the land, convej'iiig il to Si ; and fifteen months," and in case of f:,i!ure he : ay Smith $800, as liquidated dam:! upon his pa a. Smith was to quitclr'-"^ ■■ ■ '-' ir^.c-c n ed the deed and did noi il: also appears that Smii;; iiaii >:'5 j'se ance in watches and jewcJ. ' upon 1: the • ration is raised whether appcUant is entitled to the ; ight his bill. ■ " ■ It is undoubtedly true that the letter of Henry F. Balch to his other Moses gave the latter authority to contract for the sale of land. To this effect are the cases of Doty v. Wilder, 15 111. 407, ■ ' \3on v. Dodge, 17 111. 433. It was there held that when a parol authorizes another to make a contract for the sale of . ;. ;i the authority is pursued, and a written agreement is entered ^ hv the agent, a court of equity will enforce the performance of :nent, and that such a case is not within the statute of frauds. as held in the latter of these cases that a power to convey I be in writing, and of equal dignity with the deed to be exe- i.iy the letter Moses was authorized to sell at the price speci- but while the authority was in writing it was not under seal, and ntly the deed made b ' ■; attorney for Henry, was in- to convey the title, however, the whole oi the It-tter is considered ry contemplated a speedy sale, and only intende- :er to sell in a short time from its date. He die cm- ale years afterward, or even many months. This ^ . pj.urent fact that he says that he "wants all the money he can scrape >ay his way through." He speaks in the present tense. ;lien wants it: not that he shall want it at some future .ever, ap[iears vb>at the sale was not made until two months after he received the authority. id at his peril to see the authority of the agent b' ind in this case did see it, and not only - ^ ' ' \ it, and was informed that it was in.<=' e would have to run the risk of £;•'■' He seems to have concurred in 11 1 the ajr the p'v 88 CRb Sec+i'iri ii. — Express Authority. PEAB' SUPREM' supenoi ;rilch, t(-^ :iich he ; of Mar 46 III. 242. y, filed by Francis. B. Pea- ., against Samuel Jloard and oni prosecuting an action of ; that court against the tenant ■ of land. It appear'- to the 24th day o'> roveris). That he being in ini- t Salem, ivlassachusetts, on the IS not given), wrote a letter to hi^ 't he authorized him to sell the land. i)uld get »$225 for the prairie, and uithorized him to ^ne money I can r evidence it anxious ; Ij ilviui") i'. rialLii. ■-\ sale io Smith of both eighties, and . paid liall the $300 debt, with interest : ' . nt was thus made, and the $300 incum- •moved from Moses' eighty acres, and the balance ' • ^Toses in jewelry. Hall conveyed the eighty acres tor which he held the legal title, to Smith, and ' '■- ^^ '' '^ - '^ ^'ilch, conveyed to him was attor. broi; ' the bill ■cs iive;! upon his and that Henry's was unirn- ipear? that Smith removed to the eighty pur- icntly fenced the tract which had be- .. _ :, i860, appellant purch he land, with no other or ft: ■■ -^rse possession. In June, ilant purchased the land . 'lid $9^) as the ^ It the heirs of ? •appellant, br. ' ■■ restrain the and paid •CO than Icrward •f which EXPRESS AUTPIORITY. 89 The evidence discloses the fact that Smith, before purchasing, ad- vised with aa attorney, who informed him that Moses could not make a valid conveyance under the letter as a power of attorney, and informed him that if he purchased, he would have to run the risk of getting Henry F. Balch to ratify it. He, acting on this advice, took from Moses a bond, in which he bound himself to procure a deed from Henry for the land, conveying it to Smith, within "one year and fifteen months," and in case of failure he was to be liable to pay Smith $800, as liquidated damages, and upon his paying that sum. Smith was to quitclaim the land to Henry. Moses never pro- cured the deed and did not pay the liquidated damages. It also appears that Smith paid to Hall $500, and to Moses the balance in watches and jewelry. And upon this state of facts the question is raised whether appellant is entitled to the relief sought by his bill. It is undoubtedly true that the letter of Henry F. Balch to his brother Moses gave the latter authority to contract for the sale of the land. To this effect are the cases of Doty v. Wilder, 15 111. 407, and Johnson v. Dodge, 17 111. 433. It was there held that when a party by parol authorizes another to make a contract for the sale of land, if the authority is pursued, and a written agreement is entered into by the agent, a court of equity will enforce the performance of the agreement, and that such a case is not within the statute of frauds. But it was held in the latter of these cases that a power to convey land must be in writing, and of equal dignity with the deed to be exe- cuted. By the letter Moses was authorized to sell at the price speci- fied, but while the authority was in writing it was not under seal, and consequently the deed made by him, as attorney for Henry, was in- operative to convey the title. When, however, the whole of the letter is considered it is apparent that Henry contemplated a speedy sale, and only intended to empower his brother to sell in a short time from its date. He did not contem- plate a sale years afterward, or even many months. This is apparent from the fact that he says that he "wants all the money he can scrape together to pay his way through." He speaks in the present tense. He says he then wants it ; not that he shall want it at some future time. It, however, appears that the sale was not made until two years and five months after he received the authority. Smith was bound at his peril to see the authority of the agent be- fore he purchased, and in this case did see it, and not only so, but took legal advice upon it, and was informed that it was insufficient ; that if he purchased he would have to run the risk of getting it con- firmed by the owner. He seems to have concurred in the opinion of the attorney, inasmuch as he took from the agent a bond to indem- nify him against loss growing out of the purchase. He could see and must have known that the letter required a speedy sale, and yet he purchased almost two years and a half afterward. The avenues 90 CREATION. of information were open to him and he availed himself of them, as he was bound to do in dealing with an agent. He had no pretense even that he was imposed upon, as he was informed that he would acquire no title by the purchase. Yet, knowing these facts, he chose to risk the chances of getting the sale confirmed ; or, failing in that, in obtaining indemnity from the agent. Failing to get a ratification, he only had the right to look to his bond for indemnity. In this case the letter only authorized a sale for money. It speaks of so many dollars as the price for which the sale could be made, and he says he "wants to scrape together all the money he can to pay his way." There is no pretense that either Smith or Moses P. Balch could have understood that the sale could be made for watches. Yet it seems it was. It is true that $500 was paid in money, yet Moses sold his improved tract with the other, and appropriated the $500 to pay the balance of the purchase-money he owed on his tract, which Smith paid to Hall in person. Without a payment of that amount he could not obtain a release from Hall. It would therefore seem that this land was paid for in watches, and such a payment was not au- thorized by the letter. Smith having acquired no title by his deed, nor any right to a spe- cific performance of the unauthorized act of Moses Balch, his heirs and assigns could succeed to no better title than he held. The pur- chaser at the administrator's sale had the means of learning the na- ture and extent of Smith's claim ; and in a matter of such importance the presumption would be that he became fully informed before he purchased. He then cannot urge that any fraud was perpetrated upon him. He no doubt examined the title and learned its character before he purchased. If so, he ran all risks of losing the land, and he is without any equitable remedy. The court below, therefore, acted properly in dismissing complainant's bill for the want of equity, and the decree must be affirmed. Decree affirmed.^ STEWART V. PICKERING et al. 1887. Supreme Court of Iowa. 73 la. 652. Action to recover money received by the defendants for lands sold by them for the plaintiff, and which they refused to pay over, be- cause, as they claim, they sold certain other lands as the plaintiff's ^ "It is not claimed that an agent for the payment of taxes cannot be ap- pointed by parol. A request by letter or orally would be sufficient to authorize the person requested to act, and a payment made pursuant to such request would be a payment by the person making the request." Scholfield, C. J., in Paris V. Lewis, 85 111. 597, 599. In Patterson v. Keystone Mining Co., 30 Cal. 360, it was held that a verbal appointment of an agent to execute a bill of sale of a mining claim was valid. rjTTTO: tion for inakin- the last-named sales. Trial to th ^ilt, and defend?. . — :The plaintiff . vania, and the defend- ants ia .'i nii. The latter are icai e.-M^i son in Frdis City, in the forn-;'''- 'a' . the plaintifll", a letter, which i have c; of the lands in this counts- ' -••^ "^ art? If so, are they foi' .;, '' , ^ ' ' ' a custoi • etc. T' ' >se >oii ci. price-list < 'ilier is the widow of i devisee by will, which was t ur com, r-.:.v-'ir.-r rif rr ' - ''rifher and . , 'i^'<" of :... --.. -..-::. clear and good. od to the letter ■ ^ . V, V : -; n land for sale, Wmi-t - ..i-a county, Iowa.'' ! . a list of the land, with the prices at which it is for lo D. Stewart, Falls City, Pa., or 1450 2d St., Washii 1 rerms one fourth down, balan-^e in four equal annual ments, with five |.>er cent, interest, or : er for $4.75 per acre" Tilt' amount in controversy being ■ $100 we are asked to ■ le whether the foregoing cor ice, on the face there- tains any authority to sell the ui;.^ »vhich would bind the . providing the sale was made on the terms therein men- We think it does not. T aply to an offer, wdth !is to apply to the person 1. There is no piithr^r- i! the d; ' to sell the lands at the prices s ; ■■■ anied. i dthority was conferred, it was a '• jf one until revoked, and this we do not believe was contemplated. At ni, -.f iUq otfer to the defendant was: "You may sell the lands on .-s named, subject to my approval." Tlie latter must be so ' no authority to sell was given. It is due '■" *'■ :. she claims to have sold the lands throu;^ I Lv:foie she ^ified of the sale made by the dv: CHEZ 'RFTGHB.a;^ .' i> REME Court •- Wash. 680. it, King coui ■ ', 'I then:, > pretense he would •^ "its, he chose " : that, . ation. money. It speak- I he sale could be made, and ; the money he can to pay r Smith or IMoses P. Balch ' -' i^iade for watches. Yet -1 in money, yet Moses ' ed the $500 to :s tract, which ' that amount fore seem that it was not ai. i' to a sp' '. his heir The pu ■.'» na- . 'tance re he , 't rated 1 the ti 1 i its character '^ '■' r' . IV-,. :;^ the land, and L below, therefore, acted u.r;ani^ i-ni lor the want of equity, and /o <o\^ • refused to pay over, be- lier lands as the plaintiff's request,' n of authorities. If the party acts simply as iien his prmcipal must get the benefit of his good bargain ; V fact that the conditions upon which he is forced to make 1' ,; provide for a net, instead of a gross amount to the owner, ' I ' e no influence in changing the character of the relation estab- 1 • .y the contract. Courts are inclined to construe a contract ot •i '1 to be that of agency, rather than a sii. ^ ' • • vierson acUng thereunder; and howevt 1 -• the owner may be, yet if there is anything in conne. j' Vipf which shows an intent to create an agency, r:. ■' ■ le of the property, the person acting thereund'' to get any benefit therefrom other than sur'- be awarded to him bv the contract. ' • V case of Turr -ael (Tex.). 15 S. W. Ill , ■ ' language of the T will ta!:c f^-.^oc net to nthority thereof a sale was made f $8,000. ..;ed on the part of the per' m -^l! . iM ,-.-,■-,.. It he was entitled to the $50 ■uch the owner said be \\i u. "^' nd adjudcred that the 5?c;oo t of the ■ ■ ■ ' ■^r was c ider said cuniract liad a '-"ivipiission on such sai- ; iiit, and, ■ ; decisive of the que ^^^- • ;in construed m'' '■ claiming adver •er 29, 1889. "lat I have this ""■. ChezuT. iaude for 60 days [ -4 an S . 1 7 town 22 No. r. 00. Interest semi- , ; ; 1 Chezum must git /n above 10 acres to be selected ' msideration on this ap- i ij u.iv i i^cnt. On used to • appellant -ciiuig with : L. V. He is to ;ide for 60 d;- :^e are the only •A r to show tiic tKiii'.re of the appel- la . . he reinaind'^r thereof relates entirely to ilif iiondent authorizes hini ! whole instrument tr '-rem used its full and ordinary '1 the appellant the exclusive jr the period of sixty days EXPRESS AUTHORITY. 93 at a price not less than $6,000, and the only expression out of the ordinary is the clause which provides that his commission, if any he is to have, must be made out of the moneys realized upon such sale over and above said sum of $6,000. It is nothing more than the or- dinary contract for exclusive agency for the sale of property, in which the price for which it is to be sold it to be a net price. That an agent authorized to sell property at a sum not less than a certain amount, which is to be net to the seller, acts in making the sale thereunder as the agent of the seller, and not as the principal, seems to us clear. The owner of the property has fixed in his own mind the least sum which he is walling to take, and he, therefore, contracts with the agent that in acting for him he must have that sum in view as coming net to him. But it does not at all follow that the agent, acting under such power, is entitled to other benefit of the good bargain which he may make for the owner than that thereby his commission or other compensation under the contract may be in- creased. That such a contract, v^^hen it shows upon its face that an agency is created thereby, must be construed as above, is too clear to require the citation of authorities. If the party acts simply as agent, then his principal must get the benefit of his good bargain ; and the fact that the conditions upon which he is forced to make the sale provide for a net, instead of a gross amount to the owner, can have no influence in changing the character of the relation estab- lished by the contract. Courts are inclined to construe a contract of this kind to be that of agency, rather than a simple option on the part of the person acting thereunder ; and however strong the language used by the owner may be, yet if there is anything in connection with the contract which shows an intent to create an agency, rather than to make a sale of the property, the person acting thereunder will not be allowed to get any benefit therefrom other than such compensa- tion as may be awarded to him by the contract. In the case of Turnley v. Michael (Tex.), 15 S. W. Rep. 912, the language of the owner was, "I will take $7,500 net to me." Under the authority thereof a sale was made for the sum of $8,000. It was claimed on the part of the person who acted under said con- tract that he was entitled to the $500 received over and above the net price which the owner said he would take ; but the court held otherwise, and adjudged that the $500 thus received was as much the property of the owner of the land as any part of the $7.500 ; that the owner was entitled to receive the entire $8,000. and that the person acting under said contract had a claim against such ownei for a reasonable commission on such sale. This case is directly in point, and, if followed, is decisive of the question under considera- tion. The contract therein construed much better warranted the contention of the person claiming adversely to such decision than does the one here authorize the contention of appellant. There, there was a definite statement that the owner would take a certain net sum, 94 CREATION. and it was not coupled with any condition as to the agent being au- thorized to sell for that sum. Here the agent is directly authorized to sell the property, and a certain net sum is fixed upon as a part of the condition under which he is authorized to make the sale. The cases of Kramer v. Winslow (Pa.), i8 Atl. Rep. 923, and Blanchard V. Jones, loi Ind. 542, though not so directly in point as the one above cited, tend strongly to establish the doctrine contended for by respondent. On the other side, there has not been a single case called to our attention which seems to us in point upon the precise question which we are here called upon to decide. In our opinion, the appellant, when acting under the power conferred by said written instrument, acted not for himself as principal, but simply as the agent of the respondent, and, such being the case, as we have seen, he could not, under the circumstances disclosed, recover any compensation. The judgment of the court below must be affirmed. Anders, C. J., and Scott and Stiles, JJ., concur. Dunbar, J. — I dissent. I do not think that any of the cases cited by respondent are in point. Here are two persons legally competent to contract, and the contract is one they had a right to make. If the respondent had seen fit to do so, he might have contracted that he would pay $10,000, or any sum to sell his land for the sum of $6,000, and the law would enforce the payment of the price agreed to be paid if appellant had sold the land. The law will leave the parties to make their own contracts, and, after they are made, it will en- force them. This is not so much a question of agency as a question of employment. Nor is it true that, as between the contracting par- ties, the sale is made for the benefit of the landowner. The sale, if made, is made for the mutual benefit of both. Tliis is not a written contract for the sale of land where the agent gets a commission on the amount of money obtained. The owner here has seen fit to make a contract with special provisions in his own interest. He said, in substance, to the agent, "If you will sell this land within sixty days, you can have for your services all you can get for it over six thou- sand dollars, be that much or little ;" and he should be compelled to do what he agreed to do. This employment was taken on the doc- trine of chances. No matter how much labor or money might have been expended by the appellant in an effort to sell the land, if he had failed to make the sale he could have recovered nothing. Re- spondent had protected himself by his contract, and he ought not to complain if the chances turned to the benefit of the appellant.^ ^ See Robinson v. Easton, Eldridge & Co., 93 Cal. 80. IMPLIED • Section 3. — Implied Authority. GRAVES V. HORTON 1887. Supreme Court OF M Appeal by defendant froni a jua^; ..ijt of the ■...._. -..il i^v Hennepin count}', where the action was tried before Lochren, J., and a jury, and plaintiff had a verdict. The ''\ ' ' for a new trial on the ground that the verdict w. " the 'V d the motion vw. n to the facts rec e opinion, it app: y of the plaintiff that he purchased the proi ...ai the defendant, in Minneapolis, in January, 1 ■ill of sale; that he did not think he could do anyi ■ '■■ at the time, and did not go down to Spirit Lai^L, v.niic ine was situated, till May, 1886, when he was handed a tele- T. V. Horton, which had been received from Spirit ^ .ed that McCurdy was tearing down the rink ; that the ^ . ilia was a month old when handed to him, and that when he reached :\^.irit Lake he could not find the property, and found that the build- ings in which it was supposed to be had been moved away. McCurdy testified that he purchased the property in question from the de- fendant through F. M. Horton, as her agent: that he took posses- sion of it and disposed of it (refusi' hat disposition he made of it), ^r\A (-hat, as a part of th, 1 on his pnrch3<:e. •: .; acres of land in jLOwa, the :••< : ■. :. . Horton (wife of F. M. H: ' ' i s instructions. A;; . ..iiELL, J. — This action .,., ..■ ..u,^,^ ^... i\.A.v-.vi i.i^ v.^ certain property, which plaintiff had exchanged with defenda: a rlr/ing rink, skates, boats, etc., situated at Spirit Lt.' t's claim is that there was an entire failure nt title t< ■'. ' 'v, becair • - s not cj; '-. hatever was done in that regard having been oone i jn, assuming to act as her agent. Hence, imic. authority as defendant's agent to sell to ]\ c>Mu.-. i.a^'. been no such sale, and plaintiff b' -^nsc ui ' The burden was on plaintiff' to prove such ac ^^ '■: in the law of agency that no one c exceDt by the will of the principal, el :r circumstances; that an age ■^ii: ■;t\- '{<'> (]<) I narLiiM'.ir A'I \; ance, and ; own .statensc.c :. .. and strip] ting the e cr: coupled witJi tor that sin, rty, and . ; uuder whi. ' imer v. Win^ •I Ind. ■-,■ tend sti ther side iiich seer: -viC called ting under o the agent being au- is directly authorized xed upon as a part of ) make the sale. The •p. 92'.i. and Blanchard .'ccily i- ' 'iC one . doctriri. lor by been a single case called to our pon the precise question which In our opinion, the appellant, red by said written instrument, jut simply as the .agent of the as we have seen, he could not. over any compensation, ■■.wst be .iffinncd. ondent lem. Ti-. . are tW' . ,. . 1 , ... . rhe cases cited ■ lly competent '-,ke. If the d that he land. The law W: •6,000, to be •iie parties aiivl. rrfl- r- 1 h(- .ir^ ' vriil en- . ' '^ lllill, .•-l.~' ijl'i'VVIli Ik".. >. 1 il. tl . .t 1 ill^ pell- benefit of the landowner. The sale, if I benefit of both. This is not a written where the agent gets a commission on d. The owner here has seen fit to make isions in his own interest. He said, in c agent, "If you will sell this land within sixty days, ■ 'our -services all you can get for it over six thou- i much or little ;" and he should be compelled to 'o. This employment was taken on the doc- \tter how much labor or money might have ^lant in an efTort to sell the land, if he he could have recovered nothing. Re- '.^l.f by his contract, and he ought not to ^d to the benefit of ihc: ->>- ." ,..1 1 fidee & Co.. Q-? Cal IMPLIED AUTHORITY. 95 Section 3. — Implied Authority. GRAVES V. HORTON. 1887. Supreme Court of Minnesota. 38 j\Iinn. 66. Appeal by defendant from a judgment of the district court for Hennepin county, where the action was tried before Lochren, J., and a jury, and plaintiff had a verdict. The defendant moved for a new trial on the ground that the verdict was not justified by the evidence, and the motion was denied. In addition to the facts recited in the opinion, it appeared from the testimony of the plaintiff that he purchased the property in ques- tion from the defendant, in Minneapohs, in January, 1886, receiving a bill of sale ; that he did not think he could do anything with the property at the time, and did not go down to Spirit Lake, where the property was situated, till May, 1886, when he was handed a tele- gram by T. V. Horton, which had been received from Spirit Lake, and stated that McCurdy was tearing down the rink ; that the tele- gram was a month old when handed to him, and that when he reached Spirit Lake he could not find the property, and found that the build- ings in which it was supposed to be had been moved away. McCurdy testified that he purchased the property in question from the de- fendant through F. M. Horton, as her agent; that he took posses- sion of it and disposed of it (refusing to state what disposition he made of it), and that, as a part of the consideration on his purchase, he conveyed eighty acres of land in Iowa, the conveyance being made to Caroline W. Horton (wife of F. M. Horton) under F. M. Horton's instructions. 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 (lat- ter) property, because defendant had previously sold it to one ]\Ic- Curdy. 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 cre- ate in himself an authority to do a particular act by its perform- ance, 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, 96 CREATION. 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 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 eighty acres of land in Iowa ; that defendant declined to accept this last proposition, and so notified McCurdy ; that about two weeks after this she au- thorized F. M. Horton to negotiate the sale of this property to plain- tiff 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 prop- erty 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 negotiate 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 be- tween 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 putting in logs for the use of the mill, which are the cases cited by respondent. It is also true, as was said in Wil- cox V. Chicago, Mil. & St. Paul R. Co., 24 Minn. 269 (which in- volved the question 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 positive and comprehensive a character as to place the author- ity of the agent to do similar acts for the principal beyond question. It is also true that the performance of subsequent as well as prior acts, authorized or ratified by the principal, may be evidence of agency, where the acts are of a similar kind, and related to a con- tinuous series of acts embracing the time of the act in controversy, as indicating a general habit and course of dealing ; as, for example, the acts embracing the time of the act in controversv, as indicating Olcutt counsel. at term- . ..ouk! ' ' admissi 'v tiiai r !;;,■:- , . .'!(_■;. o ■:i it Lake, tradinp- in real <■ : tnem i; -.i:sible to j - - -r- - ,e witness to testify that F, M. Horton was pir -1 at Spirit Lake as the agent of Jennie ■ ;e proved by general reputation. r5eM, I ijuestion. lit as well as prior may be evidence t)f nnd related to a ron- n contP ^ -, for ex:; \ > indicating 'implied authority. 97 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 V. Tioga R. Co., 27 N. Y. 546, 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 INI. Horton 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, without identifying the transaction, or describing them, or in any way bringing them home to the notice or knowledge of de- fendant, was inadmissible to prove agency. The court also erred in allowing the same witness to testify that F, M. Horton was publicly and generally known at Spirit Lake as the agent of Jennie L. Hor- ton. Agency cannot be proved by general reputation. Judgment reversed, and new trial ordered.^ BRYAN V. JACKSON. 1822. Supreme Court of Errors of Connecticut. 4 Conn. 288. The plaintiff's account consisted of articles delivered to, and work done for Oliver P. Jackson, a minor son of the defendant and a stu- ^ "But upon the facts reported in this case, there was an agency in fact aris- ing from the absence of the husband, and from his having left his wife with the care of the family and in the management of his affairs at home. The agency, however, was not unlimited. The power must be construed in refer- ence to the nature and extent of the business affairs entrusted to her charge." Peck, J., in Meader v. Page, 39 Vt. 306, 309. "One partner has an implied authority to bind the firm by simple contracts relating to the partnership, and within the scope of the regular partnership business. In such cases, the act of each partner is regarded as the act of all. But guaranties of the debts of others, and notes or bills of exchange made or endorsed for the accommodation of others, or as surety for others, are out of the scope of the business of a trading firm. Whatever the English law may formerly have been, as to guaranties, we consider it now settled, in England as well as in the United States, that one party cannot bind the firm by a guaranty of the debt of another, without a special authority for that purpose, or an authority to be implied from the comnaon course of the business of the firm, or the previous course of dealing between the parties, unless the guar- anty be afterward adopted and acted upon by the firm." Metcalf, J., in Sweetser v. French, 2 Cush. (Mass.) 309, 313. 7 — Reixhard Cases. 98 CREATION. dent in Yale College ; which account accrued between the 226. of June and the nth of September, 1818; and the question was, whether the defendant was liable for it. The plaintiff did not claim that the defendant's son was in need of the articles charged, so that they were necessaries for him ; or that the defendant had given any express authority to his son to contract the debt. It was proved that on the 20th of June, 1818, the defendant gave to his son $135, with direction to pay the money to the plaintiff on an account, of the same nature with the one in question, for articles delivered to and work done for such son, without objecting to the account, or giving any notice to the plaintiff' not to trust his son any further ; and that the defendant then gave positive orders to his son to contract no more debts, and received from him a positive assurance that he would not. At the same time the defendant placed his son under the care of Nathaniel Rossiter, Esq., with direction to furnish him with every- thing necessary and suitable for him. The plaintiff insisted that the articles were delivered and the work done for the defendant's son, by the authority and consent of the de- fendant ; and in support of this claim, the plaintiff offered himself as a witness, to swear, that the defendant said, after the delivery of the articles, and after the last charge in the account, that he, the de- fendant, had got the plaintiff's bill ; that he should have notified the plaintiff not to trust him, on his son's account, when he paid the former bill, but did not wish to hurt his son's feelings ; that he found no fault with the bill, but wished to stop his son's extrava- gance, and, for that reason, refused to pay his bills, at that time ; and that he had once given his son money to pay the plaintiff's bill, but he had spent it. To the admission of this evidence the de- fendant objected, on the ground that the plaintiff was an incompetent witness to testify to such declarations. The judge overruled the ob- jection, and admitted the evidence. The plaintiff having obtained a verdict, the defendant moved for a new trial, on the ground that the decision of the judge, above stated, was erroneous. HosMER, Ch. J. — I am of opinion, from the facts apparent on the motion, that O. P. Jackson had an implied general authority from the defendant to contract on his credit with the plaintiff; and that the testimony of the plaintiff, in this case, was correctly admitted. Without any express authority having been conferred on him by the defendant, O. P. Jackson had procured of the plaintiff articles similar to those which constitute the present book debt. Of the debt thus contracted, the defendant made payment "without objecting to the same, or giving any notice to the plaintiff, not to trust his son any further." To his son the defendant gave a positive prohibition against contracting debts, and placed him under the care of Mr. Rossiter, but no information of this was communicated to the plain- tiff". The above facts amount to an authority imparted to the de- ■^le plaintiff ; led; and on this I to act. "If I Oiice pay" (says Chrj what my servant has bought upon ■ ■ig any disapprobation of it, it is equivalent to a . . .. . - him in future;" and this opinion ofa ver^^ learned ver is in conformity to established decisions. The case of Haz- V Treadvvell, i Strange 506, goes the length of the principle .: ■; bv the editor of Sir William Blackstone : and in the text, ' ' is subjoined, the author has said: "^ t ■s on trust, and sometimes with read} lor all he takes up; for the tradesman d. when he comes by my order, and when i.^ .;: . . All these principles have their foundation in un .ce and policy; and, therefore, it is that by law, wiitic ; ;. of another, who is a son or a servant, are recognized, by hem, this is justly considered equivalent to a gen- •nony of the to the declaration of the iccount in q. ad .accrued and had been , if competent, was unquestionably relevant. It seems that idant was restrained from giving notice to the plaintiff not his son, lest he should hurt his feehngs ; that with the bill i no 'fault ; but wishing to stop his son's extravagance, he ncr] paying it, and that he had .q-iven money to his son to - bill, which he had . \ Testimony of '" .sd something, and w.-. , - for the consider;) •. ;ry, upon the inquiry, whether authority had been given to the debt in controversy.^ * * * rial not to be granted.^ j:.\ fixdlay. ' 1876, Sltreme Court of Illinois. 82 111. 524. — This w Findlay against damages L ng to receive am, 134 '. o8 i k; I \\ i- :• ;ie iitl; irid the question was, ■ * ■ plaintiff did not claim r tide? rhn«-ored. so that vie fend n any •0 debt. • , 1 that L^ave to his son ^135, with ... , pav on an account, of the same w'ith thV 'les dehvered to and work ; ' ne account, or giving any ' any further ; and that the ;s son to contract no more .v-surance that he would not. .'\i the siW;< ed his son under the care of j^Mrl-.-M ;--■] 1 . . .n id f'.iriM,!' I'.iiit with evcrv- ;onsent of the de- red himself as el i very of the -, the de- tified the paid the ; that he ■ extrava- time ; itiff's vn udge overruled the ob- . the defendant moved for ,r-;-,r. --t ■!-■ :...i,..^. nlx)ve •:,•_ ;,.;;:■ .;i.^,...-:.iil on the ■i.; t from October 26, 1891. The court b nissed his biii, with costs against him, and he appealed. Opinion states the rr^se. Fauniler• >of, .indotte avenue, Big Stone Gap, Va., for one yc L., ber 25, 1890, to 12 M., Novemljer 25, 1S91. i iwz poucy he <'d to the insured, W. S. Reese, and received from him the t $30 for the Alexandria Insurance Company. On the of December, 1890, Lovell endorsed on this policy a per- se, the insured, to remove the stock of liquors to a storage ar of the original place, and mailed the said poHcv ovell. who delivered i e. 1891, R' "'-y to J. writing. who <"' rh the said assignment, to " - - , - i. , r!'H-.r( iVf;] it and return -■(' i'- delivered it to said 1 Mav, . Section 5. — Estoppel f i":' c law fi argnm f" :•;, the COtlSl iS'o on; of tha' orally, wg to <_ic' br: a^^ .-. 1 desire connected <, were -. lost sight of i(>r<1'^l'. ' i''irst, then, as •VI It I p< as his agent. pt by the will V be m.. in writing or ' h, accord- correct to • Ot iiiai.iklil ;i. that other is un- person who has so placed him ; e will of the employer that an 'i the doctrine 11 L^ CO! ber to .{.' to act : \nows act on ' 33 he be est- ;g- the really c". however, ■rence K. .. . ., ...., agency by StltUU' 'd a real agency, however con- aCi.t:yi.fu. \.A}UIC\\ J. : whether the defendant, by his ifFs as his agent, and whether, re led to believe, and did be- d relied on this in selling the ssel, 71 Hun (N. Y.) 442, 448. int as possessing authority to 1 person acts upon the faith of 1: such a case as this, be bound ope of his ostensible authority, ;io such authority 'in fact 01, 196. ;," by Walter W. Cook, s John S. Ewart, 5 lb. 354 ; ESTOPPEL. 103 HARDIN V. ALEXANDRIA INSURANCE COMPANY. 1894. Supreme Court of Appeals of Virginia. 90 Va. 413. Argued at Wytheville. Decided at Richmond. Appeal from decree of circuit court of Wise county, rendered at its December term, 1892, in chancery cause wherein J. M. Hardin, the appellant, was complainant and the Alexandria Insurance Com- pany was defendant. The object of the suit was to compel the com- pany to issue to the complainant a policy of insurance on a certain stock of merchandise pursuant to a contract theretofore made by the company with him, and to pay the loss thereon, amounting to $750, with interest from October 26, 1891. The court below dismissed his bill, with costs against him, and he appealed. Opinion states the case. Fauntleroy, J., delivered the opinion of the court. The facts which appear by the record are as follows : In Novem- ber, 1890, one G. W. Lovell, whose occupation was general insur- ance business at Big Stone Gap, Wise county, Virginia, went to see W. S. Reese, who told him that he wished an insurance upon his stock of liquors and bar fixtures, and asked the rate, and was told by Lovell that the rate was three per centum. Whereupon Reese instructed Lovell to write a policy for $1,000. Lovell went to his office, where he had the blank forms and instructions of the Alex- andria Insurance Company, and filled in a policy, as instructed, for $750 insurance upon the stock of liquors, and for $250 insurance upon the bar fixtures, furniture, etc., and mailed it to the "Alexan- dria Insurance Company, Alexandria, Virginia." Lovell, in a few days, received from that company a policy covering the property with insurance of $750 on the stock of liquors and $250 on the bar fixtures, furniture, etc., in the two-story frame building, metal roof, on Wyandotte avenue. Big Stone Gap, Va., for one year from 12 M., November 25, 1890, to 12 M., November 25, 1891. This policy he delivered to the insured, W. S. Reese, and received from him the premium of $30 for the Alexandria Insurance Company. On the second day of December, 1890, Lovell endorsed on this policy a per- mit for Reese, the insured, to remove the stock of liquors to a storage house in rear of the original place, and mailed the said policy, thus endorsed, to the company for its approval. The company did ap- prove the permit so endorsed by Lovell upon the said policy and re- turned it, with its approval, to Lovell, who delivered it to Reese. On the 7th of May, 1891, Reese assigned this policy to J. M. Hardin, the appellant, by a writing, witnessed by Lovell, who sent the said policy, so endorsed with the said assignment, to the Alexandria Insurance Company, who approved it and returned it to Lovell, who delivered it to said Hardin. Thus in May, 1891, the original policy I04 CREATION. became the property of Hardin (the appellant), with the sanction of the company to the assignment and to the removal of the stock insured from the two-story frame house to the storage house in its rear. On or about 27th of July, 1891, Hardin removed the stock of liquors insured from the storage house to the "Intermont Hotel," and, through Lovell, obtained from the Alexandria Insurance Com- pany its approval and permit to Hardin of this second removal. About the 31st of August, 1891, Hardin informed Lovell that he had removed the stock of liquors to the Summerfield House or building, and asked Lovell to give him a permit or approval of the said transfer. Lovell told Hardin that as there were so many en- dorsements on the policy, it would be better to cancel it and take out a new policy for the return premium. Hardin was in a great hurry, and told Lovell to do that. Lovell called Hardin back and told him to wait till he could fill in the receipt for the return premium, when Hardin said to Lovell : "Show me where to sign ; you can fill in the amount." This Lovell did, and filled in $5, according to the short- rate table, though he wrote at the foot of the said receipt for the return premium, "cancelled pro rata and new policy to be issued." Lovell then sent this original policy, so endorsed, to the Alexandria Insurance Company, who kept or suppressed it ; and, instead of issu- ing a duplicate of the original policy, as Hardin expected, issued a new and different policy according to the short-rate table (while the original policy was according to the pro rata) for $1,000 on stock, which device and arrangement shortened the life of the policy to the 9th of October, 1891, instead of the 25th of November, 1891, and made it expire on the 9th of October, 1891. This new policy was sent by the Alexandria Insurance Company to Lovell, but it never came to the hands or to the sight of Hardin. Hardin was absent in Norfolk when it came to Lovell, and Lovell left it, he says, at the Summerfield House, which was not Hardin's place of abode and in which he had no concern except the liquor stored there. Hardin contends and deposes that he had only $882 in stock, and had not asked for insurance of $1,000, nor for over $750. On the 26th day of October, 1891, the Summerfield House was burned down, and in it the stock of liquors was destroved of the value of $882. The Alexandria Insurance Company, on demand, refused to pay the insurance, and denied all liability on the ground that the new policy expired on the 9th of October, 1891, and that no policy ex- isted on the 26th of October, 1891. Had the new policy (issued by the insurance company but never delivered to Hardin) been a dupli- cate of the original (as Hardin claimed and expected), at pro rata rates, as the original Avas, it would not have expired till after the 26th of October, 1891, the date of the fire, and it would have cov- ESTOPPEL. IC- •hp 1.)-.: '' was wholly different from the policy which LoveJi rdin to obtain, because of the numerous endorse- . liginal, the only reason assigned by Lovell and urged I for canceling the original policy and taking: out a new i ' was the on ' and he reas< Loveii tliat the new policy was to be the 5anie as the .red, for convenience only, because the orio-innl was cov- ered :.:i over by oft-repeated endorsements. The i now is, v.h' responsible for this change of policies — a ...... certainly n.'i ended or expected by Hardin? The responsibility lies be- ne Alexandria Insurance Company and Lovell, on v/*"': ■ telied as the authorized agent or representative of the ■ ; misinformed the company as to the ten for by Hardin, and did not apprise the con ; ason why Hardin asked for a new policy, and that, too, on ;ii. -.i. -.T-on and the reason for the suggestion, or else the '.tely ignored the understanding 1>etween Lovell and rrarily issued the new policy to suit itself, at short- \d of according to the memorandum endorsed upon ;iai policy by Lovell, "Canceled pro rata, and new policy " The new policy, as written, was never contemplated, noi' r, by Hardin. It was the device of the company or of L s the work of the company, it is responsible for destr , ^ security for $750 insurance upon the stock insured. If it ell's act, and he misled the company, whose medium he v^^as, le and responsible for his acts in the conduct of its business, -veil aild the company claim that the company had ^ ■ commission to him as their agent,- and that he was ;; a broker. But this is playing upon words, and the v :y and the transaction itself show that he was held . tb lie as the agent or intermediate of the con^ It : . ! whom all transactions with the company by p...w. ..-.>,;..^ or '■■■ ■ :i£r insurance must pass, subject to approval. The insurance irnished him with all needful papers and blanks, re- 'is acts, approved permits of removal given by him, and L, thereby treating and holding him out as agent t- had the right to deal with the company by and thi . agent in fact. Otherwise the public would be misleij -' hy either, or by a combination of both. ;a Insurance Company must be held resp(~ cd to Hardin by a chr, '^ '• '" ■' bv it. and not intr I04 bec j)roperty of any to I'i ■n the t\N a or about .' ■asured t^'^ )Ugh Lci approw le 31st said tni dor-'. ■IV' a ri' an, J.- — ^The Hagerstovvn Savings Bank brought this ac M "-it against William McGrath and his numerous cc- ! irtners trading and doing business under the name 1 ;ne i^oudon Savings Fund Society. The first count in :! > uarr. is found upon a "certain writing obligatory, com- ,.'■■■ 1 a certificate of deposit, for the sum of five thousand ■v.. . - -,aed by H. Easton, treasurer of said Loudon Savings Fund Society (who had full power conferred upon him to do such act), and then and there delivered said certificate of deposit to said plaintiff, and thereby promised to pay said plaintiff said sum of five tl',ri'- rd dollars, six months after the date thereof, with interest at cent." The second count is upon a certificate for a deposit ':-i by H. Easton, and byb' i); ; - to the piaintifi:. Then f> counts. The copy of the certificate of deposit shows that it was issued on the first of January, 1857, by H. Easton, treasurer, to himself for five ■ ' nd dollars, payable to his order six months after date, at six per cent., and bv him endorsed in blank. e., all the general v'. defendants pleaded spec' ' the said writing i was not their act or ■'ekiah Easton had nu pcjwer or authority, as trer m Association or otherwise, to sign or endorse thf that he issued it fraudulently and corruptly, wi: ::e or authority of the -'- *^— '^^^ts, of all which *!' • vvledge whtn the cev .me into their y ' ■ " " f the Ur ' • A- Tlv aid certificat Thi- <•' ciee appealed -.st be annulled and ad this cotr cr such decree as the t of Wise f tered in the cause, will ree for ■' g to the prayer of his bill, ircuit CO- " cversed. CHAPTER V. EXTENT, CONSTRUCTION AND EXECUTION OF AUTHORITY. Section 1. — Special, General and Universal Agents. LOUDON SAVINGS FUND SOCIETY v. HAGERSTOWN SAVINGS BANK. i860. Supreme Court of Pennsylvania. 36 Pa. St. 498. Woodward, J. — The Hagerstown Savings Bank brought this ac- tion of assumpsit against William McGrath and his numerous co- defendants, as partners trading and doing business under the name and style of the Loudon Savings Fund Society. The first count in the plaintiff's narr. is found upon a "certain writing obligatory, com- monly called a certificate of deposit, for the sum of five thousand dollars, signed by H. Easton, treasurer of said Loudon Savings Fund Society (who had full power conferred upon him to do such act), and then and there delivered said certificate of deposit to said plaintiff, and thereby promised to pay said plaintiff said sum of five thousand dollars, six months after the date thereof, with interest at six per cent." The second count is upon a certificate for a deposit of like sum, made by H. Easton, and by him endorsed, but delivered by the defendants to the plaintiff. Then followed the common money counts. The copy of the certificate of deposit shows that it was issued on the first of January, 1857, by H. Easton, treasurer, to himself for five thousand dollars, payable to his order six months after date, with interest at six per cent., and by him endorsed in blank. Besides all the general pleas, the defendants pleaded specially : 1. That the said writing obligatory was not their act or deed; 2. That Hezekiah Easton had no power or authority, as treasurer of the Loudon Association or otherwise, to sign or endorse the cer- tificate, and that he issued it fraudulently and corruptly, without the knowledge or authority of the defendants, of all which the plain- tiff had knowledge when the certificate came into their possession ; 3. That Hezekiah Easton was not treasurer of the Loudon Savings Fund Society when the said writing was made ; 4. That the defend- ants did not make said paper, nor deliver the same to the plaintiff ; 5. That Easton did not deposit the five thousand dollars mentioned in said certificate, but was largely indebted to said society ; 6. That 107 io8 EXECUTION OF AUTHORITY. the plaintiff is not a bona fide holder of said certificate for value ; 7. That the proceeds of said certificate did not go into the business of the defendants, but were appropriated by said Easton, and that the plaintiff knew such use of the funds was intended. By means of these numerous pleas, and the points submitted on the one side and the other, the case was presented in every possible aspect. On the trial of the cause the learned judge directed the jury to return a verdict for the amount of the plaintiff's claim, and declined to submit any question of fact for their decision. To the admission of evidence, and the refusal of the court to give instructions prayed for, sixteen errors are assigned, which I do not propose to consider in consecutive order, though all that is material in them shall be noticed. 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 must 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 con- duct 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 em- ployer, 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 are not conformable to the commission given by him depends principally 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 Ellenbo rough in Whitehead v. Tuckett, 15 East 408, "does not import an unqualified one, but that which is derived from a multitude 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 SPECIAL, GENEILcV' ud^t of the credibili es and of the iraplica- ' . from their testing /i^v. if here did not produce any written evider , it was the duty of the court to w' agency, express or implied, special < ; the questions: i. Whether the ,...x..w ,.,.. .-P- was either the general or specia. . . .. fendants ; and 2. vVhether the issuing of the certificate in suit was within thv .->ct;i)c of his authority. Peries v. \ycinena, 3 Watts <> Jordan v. Stewart, 23 Pa. St. 247; Seklc V. Irwin, 30 id. 573, Williams v. Getty, 31 if' (72 Am. Dec. 757.)^ * * * he judgment is reversed and a venire facias de novo is awarded. - OVi:.I<. ?.s AND Appeals of New Jersey. ^^,3 .V. J. L. 463. — Un the a no objections were taken to the iciples of law y the supreme court as determining iity of a principal fur the acts of his agent. The bill of ex- - raises the question whether the judge was justified in in- •■:.^ the iur\-, in conformity with that opinion, that upon the - iuoved the plaintiff- - ■ - ■ "ot entitled to recover, wit1 ' ' any questions of fr, jury. The notes were "■ndant's name, by lii.s wife, without his knov ' d were loaned by her, without lier husband's Holmes, as a means of raising money for hi. is in both suits had knowledge that the notes lation, or lent paper, for the benefit of John R. Hoi ■'^►•'"^v- is not embarrassed by fi---- .•^..- ;-- ,,.. ^^^..^ . fact that the holder of .. !S a bon:i vithoiit notice of the purpose lor vviucii 11 was ■ ' n is purely one of the authority of the wife to bir. ' by sigTiing these notes. ■O. d certificate for value; ot g;o into the business said Ea'^ton, and that was intended. By means submitted on the one side ^'ery possible aspect. judge directed the jury to aintiff's claim, anci declined iecision. To the admission . to give instructions prayed h i do not propose to consider ' i> nini^ii'tl in f'lien) '^IimII 1>r to an nt of Easton's authority as the • jf of the act of e the authority ed by power of in g^eneral be :telongs to the aj^ency are, in ! ^y the judge. It way •:. ' from the cori- : the cr ■' *n a person hough lis em- 'ly against his .. ;.,,; L,o;. .,; I., such acts as are iven by him depends principally special. By a general agent is =;tituted in the place of another but a person whom a man OSS of a particular kind, as negotiate certain contracts, .v,nowers the agent to bind 'f his employment, and order or restriction not A. special agent is one . cific acts only, . rity be strictly general authority," said t, T5 East 408, "does ich is derived from. a Mithority is confined -here the authority, the conduct of the y i.s per testes, the SPECIAL, GENERAL AND UNIVERSAL. IO9 jury are to judge of the credibility of witnesses and of the impHca- tions 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: i. Whether the evidence satisfied them that Easton was either the general or special agent of the de- fendants; and 2. Whether the issuing of the certificate in suit was within the scope of his authority. Peries v. Aycinena, 3 Watts & S. 79 ; Jordan v. Stewart, 23 Pa. St. 247; Sekle v. Irwin, 30 id. 573; Williams v. Getty, 31 id. 461 (72 Am. Dec. 757.)^ * =1= * The judgment is reversed and a venire facias de novo is awarded.^ GULICK AND HOLMES v. GROVER. HOLMES V. GROVER. 1868. Court of Errors and Appeals of New Jersey. 33 N. J. L. 463. Depue, J. — On the argument, no objections were taken to the general principles of law stated by the supreme court as determining the liability of a principal for the acts of his agent. The bill of ex- ceptions raises the question whether the judge was justified in in- structing the jury, in conformity with that opinion, that upon the facts proved the plaintiffs were not entitled to recover, without leav- ing any questions of fact to the jury. The notes were signed in the defendant's name, by his wife, without his knowledge or con- sent, and were loaned by her, without her husband's knowledge, to John R. Holmes, as a means of raising money for his benefit. The plaintiffs in both suits had knowledge that the notes were mere ac- commodation, or lent paper, for the benefit of John R. Holmes. The case, therefore, is not embarrassed by those considerations which arise out of the fact that the holder of a negotiable note is a bona ade holder without notice of the purpose for which it was made. The question is purely one of the authority of the wife to bind the husband by signing these notes. ^ A portion of the opinion is omitted. "See Wood v. McCain, page 11. "Agents are said to be 'general' when their authority is defined by their character or business, as in the case of factors, brokers, or partners ; or 'spe- cial' when their authority is limited by the terms of their appointment." Hol- land, Jurisprudence, (9th ed.) 260. "Agents may be clothed either with general or special powers. First. A general agent may do everything which the principal ma3\ Powers of this sort are not usually granted. Second. Of the second sort are agents limited as to the objects or the business to be done, and left at large as to the mode of transacting it." Pendleton, J., in Hooe v. Oxley, i Wash. (Va.) 19, 23. no EXECUTION OF AUTHORITY. The liability of the husband, on the argument, was put by the counsel on three grounds: i. That the making of these notes, for the purpose for which they were used, was within the scope of her authority, as evidenced by the course of her usual employment; 2. That the defendant held his wife out to the plaintiffs as having competent authority to affix his name to notes for all purposes what- soever ; and 3. That the notes, though invalid against him when made, became valid obligations by a subsequent ratification. It appears from the evidence that the wife was formerly in the wine business, which was conducted by her in her husband's name, and at the time of the making of the notes the defendant was in the drug business at New Brunswick, which was carried on in his son's name, but the defendant was the owner of the goods put in the busi- ness, and furnished the capital with which it was conducted. The wife was the manager of the business, and attended chiefly to the buying and selling. The moneys received were deposited by her in the banks, in his name, and were drawn out frequently on checks, signed by her in her husband's name, and she also signed his name to notes which were given for debts incurred in the course of the busi- ness. Some of these transactions in relation to the wine businesb were had with the firm who are the plaintififs in one of these suits and extended down to about the time of the making of these notes, when their accounts were closed by a note signed by the wife in the name of the husband. This use of his name by his wife was known to him, and the notes so given were paid by him, or by her out of his funds. It may be stated, as the result of the evidence, that in the usual business of the defendant, his wife was his general agent and was, with his knowledge and consent, accustomed to sign his name to notes and checks made in the course of such business. But it does not appear that the wife ever, except in the instances of these two notes, signed her husband's name to accommodation paper, or used it as security for other persons. From this general authority would result a liability of the husband for all notes made by her in his name in the course of his general business ; but that liability would extend no further than to include such notes as were given in the usual course of business. I take the rule to be well settled that the authority to sign accommodation paper, or as security for a third person, must be specially given, unless the authority of the agent is one of universal agency, and will not flow from any general au- thority to transact business for the principal. The making of ac- commodation paper, or the loan of one's name as security for an- other does not fall within the ordinary business in which persons engage. The authority to use a principal's name for that purpose is not established by proof of an agency, however general, in the trans- action of the principal's business, even though in connection with such business it be shown that the agent was authorized to make -PECIAL, gen: Iir .iotes in the name ot his principal. To validate such }. '-"^^•^11 that the agent Avas authorized to make use ^./ ;m- , . rne for that purpo>e; and his authority must either be e • 'ted from proof that he was accusl ith the prin- t, to use his name for the acco;. » of other?. j^CiiL who is . I to draw and endorse ii<.>te.-<, rse and accc; f exchange, can act under svi nly to the extent of his principal's business, and is not authorized . nr;vA- endorse or accept them for "the accomm' '''"" >" !^'--i .- Story on z\gency, § 69 ; Bank of Hamlv iMLi; 42; Odiorne v. Maxey, 13 Mass. 181; Noru. -r r:.,::J.^ v. Vyiner, 3 Hill 262'; Steinbach v. Read, 11 Gratt. 281 : Knip^sley y. State Bank, 3 Yerg, 107; Wallace v. B- Tho evidence relied on to fix tlic di . of ;• held his wife out as having an audionty which would in- power to make these notes in her husband's name, is that t Francis IT I[(''i:i;ts and James C. Gulick, the plaintiffs in one of ..... ... ••,[f. Francis H. Holmes s.ays: "I have known John v-five years; dealt with him that time; I purchased r first; I paid some money and some notes; Mary . .icted his business; he said, in 1838, what his wife .. a buaiuess way was right — ^lie sanctioned it." . James C. Gulick says: "I have known defendant since May, he has dealt with me from that time to time notes in suit were .. ii. off and on; Mr. Grover was engaged in wine business; the purchases he made of us were in that business; during that time 'ver acted in that business with me, representing her hus- ■ goods were paid for in notes and checks. Mrs. Grover ._ business — bought, paid and gave the notes ; John Grover's signed to those notes ; I was at John Grover's residence ;:, 1849 ; I spoke to him about the way his wife was doing .vith us; I asked him if his wife, transacting and doing n his name, was all right ; he said it was— it was the same id it himself — whatever she did was right ; after that time, aed to do business in the same way ; notes and checks were ' John Grover'; it was all done by Mrs. Grover, in her ne; from that time to the present, John Grover his 'nanded those instructions." ts rely upon these general expressions c-, . ...v ..^.v ., ry the defendant had conferred on his wife as declarn y..: was empowered to use his name in her disc; riori, for all purposes, at her pleasure; and th^ir '■e to thf ed that ; Mc evidence ot an e; no \\' of con.siructiii;-!. EXECUT. of the husb ■• |i uriictr' ondant uuioritv ' . 3. Tha'^ ■ v'ciltid ob' isiness • ;ncnt. was put. by the .... ang^ of these notes, for > d, was within the scope of her '" ^er usual employment; he plaintiffs as having for all purposes what- t gainst him when made, latitication. _ wife was formerly in the L>y her in her husband's name, notes the defendant was in the ' ich was carried on in his son's t-r of the goods put in the busi- vvhich it w^« conducted. The .ss, and ^ chiefly to. the cived w ^ -ited by her in frequently on checks, , .u..i ... ;ilso signed his name to iirred in the course of the busi- ■ s m re':' ' wine business the pb'^- of these suits '■' : f these notes, i 're wife in the • as known -r out of M-Mcie ai- ; .ife was his general agent and was, '• iomed to sign his name to nch business. But it does 1, except in the instances of these two Kline to accommodation paper, or used From this general authority would j.iiu for all notes made by her in his neral business.; but that liability would ' :'e such notes as were given in the the rule to b^- '^k^A^ settled that the paper, or - "v a third not est^. action ■ such b , unless tbo '.vill not n Tiruicipa' ine age! the agent neral au- ;.ig of ac- ^■' for an- 'i persons i;urpose is rhe trans- lion with izcd to make SPECIAL, GENERAL AND UNIVERSAL. Ill notes in the name of his principal. To vaHdate such paper it must be shown that the agent was authorized to make use of his prin- cipal's name for that purpose ; and his authority must either be ex- press or implied from proof that he was accustomed, with the prin- cipal's consent, to use his name for the accommodation of others. An agent who is authorized to draw and endorse notes, and to draw, endorse and accept bills of exchange, can act under such authority only to the extent of his principal's business, and is not authorized to draw, endorse or accept them for the accommodation of mere strangers. Story on Agency, § 69 ; Bank of Hamburgh v. Johnson, I Rich. 42; Odiorne v. Maxey, 13 Mass. 181 ; North River Bank v. Aymer, 3 Hill 262; Steinbach v. Read, 11 Gratt. 281 ; Kingsley v. State Bank, 3 Yerg. 107; Wallace v. Branch Bank, i Ala. 565. The evidence relied on to fix the defendant's liability, because of his having held his wife out as having an authority which would in- clude the power to make these notes in her husband's name, is that of Francis H. Holmes and James C. Gulick, the plaintiffs in one of these suits. Mr. Francis H. Holmes says : "I have known John Grover twenty-five years ; dealt with him that time ; I purchased goods from Grover first ; I paid some money and some notes ; Mary Ann Grover transacted his business; he said, in 1838, what his wife did in a business way was right — he sanctioned it." Mr. James C. Gulick says : "I have known defendant since May, 1848 ; he has dealt with me from that time to time notes in suit were given, off and on ; Mr. Grover was engaged in wine business ; the purchases he made of us were in that business ; during that time Mrs. Grover acted in that business with me, representing her hus- band ; the goods were paid for in notes and checks. Mrs. Grover did all the business — bought, paid and gave the notes ; John Grover's name was signed to those notes ; I was at John Grover's residence in August, 1849 ' I spoke to him about the way his wife was doing business with us ; I asked him if his wife, transacting and doing business in his name, was all right ; he said it was — it was the same as if he did it himself — whatever she did was right ; after that time, we continued to do business in the same way ; notes and checks were given, signed John Grover ; it was all done by Mrs. Grover, in her husband's name ; from that time to the present, John Grover has never countermanded those instructions." The plaintiffs rely upon these general expressions as to the extent of the authority the defendant had conferred on his wife as declara- tions that she was empowered to use his name in her discretion, with- out limitation, for all purposes, at her pleasure ; and that that author- ity, not being revoked by notice to them, was still subsisting when the notes were given, and covered that particular transaction. Treat- ing these expressions as the evidence of an express authority, the question becomes one merely of construction. 112 EXECUTION OF AUTHORITY. One of these conversations took place twenty-three years, and the other twelve years, before the making of these notes. At the time of the conversation with Mr. Holmes he was in busi- ness at Cranberry, in this state, and his transactions with Grover were in purchasing goods of him. At the period referred to by Mr. Gulick, he and Mr. Holmes were together in the mercantile business in New York, and the dealings of the defendant with the firm were confined solely to the purchase by Mrs. Grover of goods to be used in the manufacture of wines, which was then carried on in the hus- band's name. These dealings continued down to September, 1858, and were always of the same character. The conversations in which these expressions were used were directly in connection with the business then being transacted by Mr. Grover with the parties, and had express reference to the manner in which Mrs. Grover was using her husband's name and credit in the business. Obviously, the lan- guage used must be construed with reference to the business then being transacted between the parties, and which was then the sub- ject-matter of discussion. And any general expressions used by the defendant in relation to the extent of his wife's authority must be restricted to such business. A universal agency, such as this is claimed to have been, can only be created by clear and unequivocal language, and will not be inferred from any general expressions, however broad. Mr. Justice Story, in his work on Agency, says : "It may, perhaps, be well to add that general agents are to be care- fully distinguished from universal agents ; that is, from agents who may be appointed to do all the acts which the principal can personally do, and which he may lawfully delegate the power to another to do. Such a universal agency may potentially exist ; but it must be of the very rarest occurrence. And indeed it is difficult to conceive of the existence of such an agent practically, inasmuch as it would be to make such an agent the complete master, not merely dux fact, but dominns rcnun, the complete disposer of all the rights and property of the principal. It is very certain that the law will not, from any general expressions, however broad, infer the existence of any such unusual agency ; but it will rather construe them as restrained to the principal business of the party in respect to which it is presumed his intention to delegate the authority was principally directed." Story on Agency, § 21. Language, however general in its form, when used in connection with a particular subject-matter, will be pre- sumed to be used in subordination to that matter, and therefore is to be construed and limited accordingly. Story on Agency, §§ 62, 69; Rossiter v. Rossiter, 8 Wend. 494 (24 Am. Dec. 62) ; i Am. Lead. Gas., 4th ed., 566. A letter of attorney authorizing one to issue notes in the name of the principal will be construed as extending only to notes issued in the business of the principal, or for his benefit. If the intent be that cipal. SPECIAL, G! )rnev mav issue notes for his own benefit, or the benefit of Uee An ar 349; Attwood v. Munnings, 7 Bam. & C. 278; ttled rules of construction, it is manifest that th :ti in wnicii id acco. OS of co: ^y to bind his p»"ii undis). question wheth: ^' 'oa.! is a c" - 'it to be ulu not i'ecowcv on tiic^c ro by V. sines-s were used ^: hus- down t Licr, 1858, '■'• '■■>' -. .,.. ...-lis in whic^'' mnection with t' he parties, ana ver was using ':', the lan- -iness then was then the sub- - inns used by the iority must be ' b as this is lequivocal a? it would he ^traihed to the '111. wlicn i be nre- at be that SPECIAL, GENERAL AND UNIVERSAL. II3 the attorney may issue notes for his own benefit, or the benefit of a third person, the authority must expressly so declare. North River Bank v. Aymar, 3 Hill 262. A power of attorney to collect debts, to execute deeds for lands, to authorize a complete adjustment of all concerns of the constituent in a particular place, and to do all other acts which the constituent could do in person, does not au- thorize the giving of a note by the attorney in the name of the prin- cipal. Rossiter v. Rossiter, 8 Wend. 494 (24 Am. Dec. 62). A letter of attorney to ask, demand and receive of the E. I. Company all money that might become due the principal, on any account whatsoever, and to transact all business, will not authorize the at- torney to endorse away a bill taken by him under this power. The words "all business" must be confined to all business necessary for the receipt of the money. Hay v. Goldschmidt, cited in Hogg v. Smith, I Taunt. 349 ; Attwood v. Munnings, 7 Barn. & C. 278 ; Chitty on Bills, 29. Adopting these settled rules of construction, it is manifest that the expressions of the defendant as to his wife's unlimited power to act for him in his name must be referred to the general business he was then engaged in and in which he might subsequently engage. That the notes were taken in the belief that she had the authority to make them is immaterial. The material question is, what authority, in point of fact, did the husband confer on his wife by the language he used, construed according to the recognized rules of construction ? The act done was one requiring a special authority, and a party deal- ing with an agent, and knowing the nature of the act, must see to it that the agent possesses the requisite authority to bind his principal. The burden of proof lies on him.^ * * * When the facts are undisputed, the question whether an agent has the requisite authority to bind his principal is a question of law for the court, whether such authority is sought to be sustained by a pre- vious authorization or by subsequent ratification. Under the ad- mitted or uncontroverted facts in these cases the judge properly in- structed the jury that the plaintiffs could not recover on these notes. The judgment must be affirmed. - ^ A portion of the opinion is omitted. '"The distinction between a general and special agent is well settled ; the acts of the former bind the principal whether in accordance to his instructions or not ; those of the latter do not unless strictly within his authority." Savage, C. J., in Rossiter v. Rossiter, 8 Wend. (N. Y.) 494, 497. 8 — Reinhard Cases. 114 EXECUTION OF AUTHORITY. Section 2. — Rules of Construction. ATWOOD V. MUNNINGS. 1827. Court of King's Bench. 7 B. & C. 278. Assumpsit by the plaintiffs, as indorsees, against the defendant, as accepter, of a bill of exchange for 1560/. Plea, the general issue. At the trial before Lord Tenterden, C. J., at the London sit- tings after Michaelmas term, 1823, a verdict was found for the plaintiffs, subject to the opinion of this court on the following case : The plaintiffs were bankers, carrying on business in the city of London ; the defendant was a merchant engaged in extensive mercan- tile business, and also, in joint speculations to a considerable amount, with Thomas Burleigh, Messrs. Bridges and Elmer, S. Howlett and W. Rothery. In the year 181 5 the defendant went abroad on the partnership business and remained abroad till after the bill upon which this action was brought became due. By a power of attorney dated the i8th of May, 1816, the defendant granted power to W. Rothery, T. Burleigh and S. Munnings, his wife, jointly and severally for him, and in his name, and to his use, to sue for and get in moneys and goods, to take proceedings and bring actions, to enforce payment of moneys due, to defend actions, settle accounts, submit disputes to arbitration, sign receipts for money, accept compositions, "indorse, negotiate and discount or acquit and discharge the bills of exchange, promissory notes or other negotiable securities which were or should he payable to him, and should need and require his endorsement ;" to sell his ships, execute bills of sale, hire on freight, effect insurances, "buy, sell, barter, exchange, export and import all goods, wares and merchandises, and to trade in and deal in the same in such manner as should be deemed most for his interest ; and generally for him and in his name, place, and stead, and as his act and deed, or otherwise, but to his use, to make, do, execvite, transact, perform and accomplish all and singular such further and other acts, deeds, matters and things as should be requisite, expedient and advisable to be done in and about the premises, and all other his affairs and concerns, and as he might or could do if personally acting therein." By another power of attorney, dated the 23d of July, 18 17, and executed by the defendant when abroad, he gave to his wife, S. Munnings, power to do a variety of acts affecting his real and personal property ; "and also for him, and on his behalf, to pay and accept such bill or bills of exchange as should be drawn or charged on him by his agents or correspondents, as occasion shall require, etc. ; and generally to do, negotiate and transact the affairs and business of him, defendant, during his absence, as fully and effectually as if he were present and acting therein." T. Burleigh corresponded with the defendant and acted as his agent, both before and after the receipt of this power. 115 . iiyed part of f^l:c ijroduce . individual concerns, an«' his absence P Li rpose of raising money t(= ;ie creditors n, who were becoming urgeir nir bills of 5001; each upon the defendant, <' v 22, 1819. of tb'^^e bil!= Mere af>plied in pa^ iiartnership ant by p \I , ^ard, in ■ cy i fills, drawn and accepted in the ■ ti: date pay to my order 1560/, f^' d: . ■ pted per procuration of G. ( -S. > bill was discounted by the H" ue- :o England in October, 1821, nd each of i.rs 10 the joint speculations, claimed to be a on 'aintiflfs. The question is, whether, under either ittomey, the defendant's wife was authorized to liy Thomas Burleigh, to raise money to discharge , ine partners in the joint concern? By the second - authority was given to Mrs. M. to accept bills drawn \e defendant as occasion might require. Burleigh, tiic >rid to have acted as agent of the defendant, and, there- ihe only circumstance necessary to complete the authority ■^how that occasion did require that the bill should be drawn. however, cannot affect third persons. They are bound to see -' I- to accept, but not to ascertain how far the bill was neces- vcrs are often construed differently as to the attorney ar^d ons. In Howard v. Baillie (a), Eyre, C. J.. ', -n- : a power to pay debts in course of administ' v- contract before a specialty debt wo^^ yd, , but not as to the attorney. It is not : for :ers to have such a knowledge of the party's affairs as to be ! to judge whether the occasion did ma' - '''■■ ''11 requisite. r, of course, has such knowledge, and ' - as to this lered as directory only. The pan, lo protected b> of his '■iwn 3'^r'^nt, and may derive gre^.t bene^.^ t bills in cases of The power in q iS if the words "at the discretion of my attornev,'' or, ■ 2, — Rules of Constn as accepter, oi issue. At tb'^'' ■ tinpi alter piainti''^' Till L tit' merchi' as should Iv ■.■'. h'^ n',,v,,: ■iirierden, C. J., at the London sit- , a verdict was found for the :.s court on the following case : •^ ins: on business in the city of 'd in extensive mercan- ' ' a considerable amount, ges and Ellmer, S. Howlett and .... defendant went abroad on the ued abroad till after the bill upon ■•• ■' - :-ver of attorney 1 power to W. ' . and severally ' cret in moneys f^ payment .isputes to ney, accept "indorse, and dischar;; ■ "-hang-e, able securiti: -hould : ' ^t;"to . ances. Ha iUipori ail goods, wares and i.al in the same in such manner rest ; and generally for him and his act and deed, or otherwise, ; ansact, perform and accomplish ' '"r acts, deeds, matters and ind advisable to be done in •ncerns. and as another power ccuted by the •■"'ngs, power erty ; "and ■: iiill or bills : his agents or '.i generally to do, >f him, defendant. ■ were present and 'I', defendant and cnt, botn bei of this power. V, dated ' . >. ' i 1 11 should > as occa r?>nsact ; RULES OF CONSTRUCTION. II5 The defendant, while abroad, employed part of the produce of the joint speculations in his individual concerns, and during- his absence T. Burleigh, for the purpose of raising money to pay to the creditors of the joint concern, who were becoming urgent, drew four bills of exchange for 500/ each upon the defendant, dated May 22, 1819. The proceeds of those bills were applied in payment of partnership debts ; they were accepted by the defendant by procuration of S. M., his wife. The bill in question was afterward, in order to raise money to take up those bills, drawn and accepted in the following form : "Six months after date pay to my order 1560/, for value received: T. Burleigh. Accepted per procuration of G. G. H. Munnings — S. Munnings." This bill was discounted by the plaintiffs. The de- fendant returned to England in October, 1821, and he, and each of the partners to the joint speculations, claimed to be a creditor on that concern. Parke for the plaintiffs. The question is, whether, under either of the powers of attorney, the defendant's wife was authorized to accept bills drawn by Thomas Burleigh, to raise money to discharge debts owing by the partners in the joint concern? By the second power express authority was given to Mrs. M. to accept bills drawn by agents of the defendant as occasion might require. Burleigh, the drawer, is found to have acted as agent of the defendant, and, there- fore, the only circumstance necessary to complete the authority is to show that occasion did require that the bill should be drawn. That, however, cannot affect third persons. They are bound to see the power to accept, but not to ascertain how far the bill was neces- sary. Powers are often construed differently as to the attorney and third persons. In Howard v. Baillie (a). Eyre, C. J., puts an in- stance, viz. : a power to pay debts in course of administration ; pay- ment of a simple contract before a specialty debt would be good, quoad the creditor, but not as to the attorney. It is not possible for strangers to have such a knowledge of the party's affairs as to be enabled to judge whether the occasion did make the bill requisite. The agent, of course, has such knowledge, and the power as to this part must be considered as directory only. The party is protected by having the choice of his own agent, and may derive great benefit from giving him power to draw or accept bills in cases of expediency as well as in cases of absolute necessity. The power in question may fairly be read as if the words "at the discretion of my attorney," or, "as my attorney shall think fit," had been inserted instead of "as occasion shall require." If the words had been "as shall be neces- sary," a different construction might have prevailed. The case of The East India Company v. Hensley (b), differs from the present. There the agent had a special and limited power to buy silk of a particular quality. If the order to him had been general, to purchase such silk as occasion should require, and he had bought silk of a second quality, although the occasion required him to buy it of the Il6 EXECUTION OF AUTHORITY. first, the principal would have been bound by his act. But, secondly, the occasion did require this bill to be accepted. The case states that the defendant was engaged in various speculations individually and in partnership. He had applied to his own use funds of the joint firm. The joint concern was in debt, and the bill in question was drawn and accepted for the purpose of paying those debts. [Bayley, J. There is nothing said in the power as to partnership concerns, and as to them it was unnecessary, for the other partners had, with- out any power of this sort, authority to bind the defendant.] The words of the power are general ; there is nothing in them to limit the authority to the private concerns of the defendant, and the words must be construed most strongly against him. But if it be held that the special authority to accept bills did not extend to this case, still the general power in the first instrument was sufficient to authorize the acceptance ; that relates to the management of all the defendant's affairs, and if any words are sufficiently comprehensive to give both special and general powers, they have been used in that instrument. Pollock, contra. If the first power had been capable of receiving the construction now attempted to be put upon it, the second would have been wholly unnecessary, but it manifestly was not intended to apply to the acceptance of bills. The question, therefore, turns upon the authority to accept given by the second power. Much argument has been addressed to the question how far the power was re- stricted by the introduction of the words "as occasion shall re- quire." But, supposing no such words to have been used, then the power would have been to accept bills drawn by his agent or cor- respondent, but that must mean an agent or correspondent in that transaction. Nor would any difficulty arise out of such a construc- tion, for the acceptance being by procuration ought to put parties taking the bill on their guard, and they should require the production of the letter of advice accompanying the bill. Bayley, J. — This was an action upon an acceptance importing to be by procuration, and, therefore, any person taking the bill would know that he had not the security of the acceptor's signature, but of the party professing to act in pursuance of an authority from him. A person taking such a bill ought to exercise due caution, for he must take it upon the credit of the party who assumes the authority to ac- cept, and it would be only reasonable prudence to require the produc- tion of that authority. The plaintiff in this case relies on the avithor- ity given by two powers of attorney, which are instruments to be construed strictly. By the first of the powers in question the defend- ant gave to certain persons authority to do certain acts for him and in his name and to his use. It is rather a power to take than to bind, and, looking at the whole of the instrument, although general words are used, it only authorizes acts to be done for the defendant singly ; it contains no express power to accept bills, nor does there appear to have been an intention to give it ; the first power, therefore, did not , transactions, for the uiher partncis . ._ceptance. The words, therefore, must which is their obvious meaning, viz. : an authority ■ 'here it was rig-hSfor ' ■ ' ^ -..-../( i.-. \ •s. the bills to be acct ■ i rc'^uirc. :. 1 . . _:ise was not ccepting. He might easily have r; ' -e, and I think he was bound i inion that iudgment of nonsuit ra: V ci'C uOuiiu L>-< ctsccriaui, ce was agreeable to the state sufficient to show that this biii was draw;: ..c.e capacity, but rather to the contrary; f*"*- '' •^'T'^firA WNW to raise money for the joint concern . .he partner; it does not, therefore, come \ ' ' i special I 3*5 to thf* frpTieral j>")wers. these in: do not iiALE, J. — i am di the same opmion. ii is said that li <-f -nn*^ V.und to inquire into the making of a bi^' ■':'' ' he acceptance appears to be by prociv !ui hs upon the authority given. The first ; IS an authoritv to endorse, but not to acci been p • Is, for 1 - are given. Ihe sccona pu\ _, :.'' in my name bills .'r^M :• ,, iits or c lents, as occ; ■^ ■ • ' .. <..^.'..-.-iun, do vf^' ■ '.,,..,> the sentence wr m. it ai autiioiiiy, and the plaiatiii canm- le defen •n of this case in North River Bank v. Aymar, ; incipal v ot. But, secondly, J did req: '' ■ - ■ -s that ant wa.- 'lually • joint .1 was [i^ayley, ^. concerns, e other partners had, with- bind the defendant.] The nothing in them to Hinit the ii;c defendant, and the words n'^t him. ?A\X if it be held that this case, still "1. to authorize all the defendant's nsive to give both that instrument. ' ' '' receiving nd would ^tended to ims upon irgumerr' r was re shall re then tlv It or cor vit in that construe- to put parties "he nroductinn t taking the bill would cccptor' lire, but of of Jtn a "rom him. T he must rity to ac- e produc- le author- nts to be vMi' u ihe defend- 1 acts for him and lention to gi\ refore, did not RULES OF CONSTRUCTION. llj warrant this acceptance. The second power gave an express author- ity to accept bills for the defendant and on his behalf. No such power was requisite as to partnership transactions, for the other partners might bind the firm by their acceptance. The words, therefore, must be confined to that which is their obvious meaning, viz. : an authority to accept in those cases where it was right for him to accept in his individual capacity. Besides, the bills to be accepted are those drawn by the defendant's agents or correspondents ; but the drawer of the bill in question was not his agent quoad hoc. The bills are to be accepted, too, "as occasion shall require." It would be dangerous to hold that the plaintiff in this case was not bound to inquire into the propriety of accepting. He might easily have done so by calling for the letter of advice, and I think he was bound to do so. For these reasons, I am of opinion that judgment of nonsuit must be entered. HoLROYD, J. — I agree in thinking that the powers in question did not authorize this acceptance. The word procuration gave due notice to the plaintiffs, and they were bound to ascertain, before they took the bill, that the acceptance was agreeable to the authority given. The case does not state sufficient to show that this bill was drawn bv an agent in that capacity, but rather to the contrary ; for it appears that it was drawn to raise money for the joint concern in which the drawer was a partner ; it does not, therefore, come within the special power. Then, as to the general powers, these instruments do not give general powers, speaking at large, but only where they are neces- sary to carry the purposes of the special powers into effect. LiTTLEDALE, J. — I am of the same opinion. It is said that third persons are not bound to inquire into the making of a bill, but that is not so where the acceptance appears to be by procuration. The question then turns upon the authority given. The first power of at- torney contains an authority to endorse, but not to accept bills ; the latter, therefore, seems to have been purposely omitted. Neither is this varied by the general words, for they cannot apply to anything as to which limited powers are given. The second power gives au- thority "to accept for me and in my name bills drawn or charged on me by my agents or correspondents, as occasion shall require." The latter words, as to the occasion, do not appear to me to vary the question, and reading the sentence without them, it authorizes the acceptance of bills drawn by an agent. The present bill was not drawn by Burleigh in his character of agent, and. therefore, the ac- ceptance was without sufficient authority, and the plaintiff cannot re- cover upon it. Postea to the defendant.^ ^ See discussion of this case in North River Bank v. Aymar, 3 Hill (N. Y.) 262. "The words 'per procuration' are an express statement that the partj^ accept- ing the bill has only a special and limited authority, and therefore a person who takes a bill so accepted is bound at his peril to inquire into the extent Il8 EXECUTION OF AUTHORITY. GC/ULDY V. METCALF et al. 1889. Supreme Court of Texas. 75 Tex. 455. Acker, Presiding Judge. — W. H. Turner, by properly executed power of attorney, granted to H. E. Turner and A. P. Bell authority and powers as follows : *Tn and about my business, to buy, sell or exchange property ; to receive and receipt for money ; to sell and dispose of property, to give bills of sale thereto, or to sell and transfer real estate and execute deeds thereto ; or to do and perform any law- ful act in or about or concerning my business, as fully and completely as if I were personally present ; and I herein and hereby confirm all their lawful acts and deeds that they perform in any manner con- nected with my business." Under this instrument the attorneys in fact executed a statutory deed of assignment of Turner's property for the benefit of his cred- itors. Appellant Gouldy was named as assignee, and he took pos- session of the assigned estate as such. Appellees Ruder and Pool were creditors of Turner, and sued out an attachment against him, under which appellee Metcalf, as sheriff, took from the possession of Gouldy the stock of merchandise, books and accounts, etc., which he had received as assignee of Turner. Gouldy brought this suit as assignee against the sheriff and plain- tiffs in attachment to recover damages for the wrongful seizure and conversion of the property. On the trial plaintiff, having introduced in evidence the power of attorney, offered the deed of assignment, which was objected to by defendants upon the ground that "the power of attorney did not au- thorize the attorneys in fact to make the deed." The objection was sustained, and there was no other evidence offered. The court, trying the case without a jury, rendered judgment for defendants. The only question presented is, Did the trial court err in holding that the power of attorney did not authorize the attorneys in fact to execute the deed of assignment ? That a deed of assignment for the benefit of creditors may be executed by an agent or attorney in fact, specially authorized thereto, we think has been settled by the decision in McKee v. Coffin, 66 Tex. 307, 308, where it is said : "It is now urged that the court below erred in admitting in evidence the deed of assignment, because there is no sufficient evidence that it was ever executed by S. W. Kniffin. The evidence shows that he was not and nature of the agent's authority." Byles, J., in Stagg v. Elliott, 12 C. B. N. S. 373, 381. "A signature by 'procuration' operates as notice that the agent has but a limited authority to sign, and tlie principal is bound only in case the agent in so signing acted within the actual limits of his authority." Negotiable In- struments Law, § 21. 119 executed, but that prior to its execution I . la uone by those who did execute it, upon the contemplated contingency." in under no disability may do in person, :h an agent ; but it is claimed that this is ■ tiie act ^ assignments; that the deed of as- ' hi' the ^ act of the owner of the property I evidence of this, it is urged that the assignor die schedule. he second section of the act d^ hat the shall be verified by the oarii Oi the validity of the assig-nment, f' L "no assignment shall be declared fr; : V inventory or list, as provided herein . i>e not annexed and verified as provided in ti^is , ;,,.;.^ '-^^'dence that the assignor has secreted t-he property belonging to his estate iiics.-, etc. it is said that 'the processes provided •-, and the penalties denounced against him, are • be transferred to and performed by or en- ." If an agent makes a false oath in the course ot his principal, he may be indicted and convicted for .,..-... ^ or perjury, as the case may be, as though the fa',-e ore taken in his own business." think it clear from the foregoing quotations that an assigiiiiiL-ii ■ benefit of creditors may be made by any agent or attorney in ] thereto.. The instrument under which the power wr:s is case does not in terms grant the authoT-ity. Ti:l ;n the grant of general power is certainly v e- • pstablished rule of construction limits ti 2ral grant of power to the acts author ' ,ii|>i( ^r'i in granting the special powers, in authority is conferred upon an agent by a formal power of attorney, there are two rules of construciiou attended to : ::: of general words in the instrument will be re- - ext and construed accordingly." ■ authority will be construed strictly, so as to exclude the i any power which is not warranted, either by the actual >i or as a necessary means of executing the authority with '"s Evans on Agency, 204, 205; Reese v. Medlock, 27 -'•'< Am. Dec. 611. to this case, and none of th was executed being shown, w t did not have the power to mai;.-. Til -ilrl;'": .T GC/ULDY ]8.'^t) Sui'REMr resitlinf^ J'r' ^"i\Mir of aitornt and powers as t exchange property ; dispose of property real estate and ex- ful act in or aboii as if I were per^ their lawful act nected with mv Under thi'- aiK; tilt,^ COM" nly que^ N. - strunn::;u^ i.;. 75 Tex. .. •er, by : executec: authorit} iiy, sell or I it for money; to sell and Ljioreto, or to sell and transfer 'ir to do and perform any law - isiness, as fully and complete)} herein and hereby confirm al perform in any manner con - in fact executed a statutor} fv For t'l ■ Monefit of his cred- and he took pos- Turner. and sued out 1; appei' ' :is sherifiF. :'' ■^tork >e, book- rner. ind plain wrongful seizure and need in evidence the power oi ent, whi'ch was objected to b\ power of attorney did not au- rhe deed." The objection wa^ .nee offered. . V, rendered judgment for • the trial court err in holding •'ze the ai: in fact tc feed of ;-' ;t for the '. agent or auo.ney in fact, -cen settlc(' w- the decision ere it i- l is now ■"-T i" <'^ . le deed of it was ever ^lI^nv^ uidt he WaS not i-. Stagg V. Elliott, 12 C. B. 'at the agent has but a i-nly in case the agent in Iiority." Negotiable In- RULES OF CONSTRUCTION. II9 present when the deed was executed, but that prior to its execution he had directed this to be done by those who did execute it, upon the happening of a then contemplated contingency." And again : "What a person under no disabihty may do in person, he may ordinarily do through an agent ; but it is claimed that this is not true under the act regulating assignments ; that the deed of as- signment must be the personal act of the owner of the property assigned, and, as an evidence of this, it is urged that the assignor must make oath to the schedule. "It is true that the second section of the act does require that the inventory and schedule shall be verified by the oath of the debtor, but this is not essential to the validity of the assignment, for the tenth section declares that 'no assignment shall be declared fraudulent or void for want of any inventory or list, as provided herein, but if such hst and inventory be not annexed and verified as provided in this act, it shall be prima facie evidence that the assignor has secreted and concealed some portion of the property belonging to his estate from his assignee, unless,' etc. It is said that 'the processes provided against the assignor, and the penalties denounced against him, are all personal, and cannot be transferred to and performed by or en- forced against an agent.' If an agent makes a false oath in the course of the business of his principal, he may be indicted and convicted for false swearing or perjury, as the case may be, as though the false oath were taken in his own business." We think it clear from the foregoing quotations that an assignment for the benefit of creditors may be made by any agent or attorney in fact authorized thereto. The instrument under which the power was exercised in this case does not in terms grant the authority. The language used in the grant of general power is certainly very compre- hensive, but the established rule of construction limits the authority derived by the general grant of power to the acts authorized by the language employed in granting the special powers. "When an authority is conferred upon an agent by a formal instru- ment, as by a power of attorney, there are two rules of construction to be carefully attended to : "i. The meaning of general words in the instrument will be re- stricted by the context and construed accordingly." "2. The authority will be construed strictly, so as to exclude the exercise of any power which is not warranted, either by the actual terms used or as a necessary means of executing the authority with efifect." Ewell's Evans on Agency, 204, 205 ; Reese v. Aledlock, 27 Tex. 123, 124, 84 Am. Dec. 611. Applying these rules to this case, and none of the circumstances under which the power was executed being shown, we are of opinion that the attorneys in fact did not have the power to make the assign- ment, and that the court did not err in so holding. 120 EXECUTION OF AUTHORITY. We are, therefore, of opinion that the judgment of the court below should be affirmed. Affirmed. 1 GILBERT V. HOW. 1890. Supreme Court of Minnesota. 45 Minn. 121. Ejectment for land in Scott county, brought in the district court for that county, and tried before Francis Cadwell, Esq., as referee, who ordered judgment for defendant, which was entered and from which the plaintiff appeals. The facts found were as follows : In 1856 Franklin Chase, being owner in fee, conveyed to Mary A. Clarke. On January 22, 1857, the latter mortgaged to Edward A. Judson. On February 28, 1857, Mary A. Clarke and Benjamin F. Bucklin made to Franklin Chase the power of attorney considered in the opinion, Bucklin having no interest in the land. On July 14, 1858, Chase, assuming to act under his power of attorney, executed and delivered, in the names of both principals, a conveyance to George A. Bucklin. In 1859 Judson brought suit in the United States circuit court for Minnesota to foreclose his mortgage, making George A. Bucklin the sole defendant, which suit proceeded to decree and sale, at which Judson became the purchaser, and, after confirma- tion, received the proper master's deed. In 1867 Judson conveyed to one Latz, who, in 1888, conveyed to plaintiff. The defendant offered no evidence. Collins, J. — The deed in which Mary A. Clarke and B. F. Bucklin ^Compare Philadelphia Trust Co. v. Nat. Bank, 6 Fed. 114. "When parties have reduced their contract to writing, courts will construe it according to the intention therein expressed, when that intention is clear upon its face. Only in cases of ambiguity in the terms of the written contract will courts resort to extraneous evidence to determine the intention of the parties." Grant, J., in Baker v. Baird, 79 Mich. 255, 259. "This was a formal power of attorney, apparently deliberately executed, at- tested, and recorded. It will therefore be strictly construed, in view of the controlling purpose; and the addition of general words will not be construed to extend the authority, so as to add new and distinct powers different from those expressly delegated." Lumpkin, J., in White v. Young, 122 Ga. 830. "The ordinary common-law rule is that all written powers, such as letters of attorney, or letters of instructions, must receive a strict interpretation; the au- thority never being extended beyond that which is given in terms, or is abso- lutely necessary for carrying the authority so given into effect." McAllister, J., in Bissell v. Terry, 69 111. 184, 19T. "Such an instrument (a power of attorney) is generally to be construed as a plain man, acquainted with the object in view, and attending reasonably to the language used, has in fact construed it. He is not bound to take the opin- ion of a lawyer concerning the meaning of a word not technical, and appar- ently employed in a popular sense." Curtis, J., in Very v. Levy, 13 How. (U. S.) 345, 358. 121 A. Bucklin as gfrantee, was exe- ano i)\ Franklin Ch?: ' ' ' '" ' is > A. Clarke. The la) .n rcy of the grantor last i^ ;.ar as rd, Bucklin havinc: no The •rtue of which ( was a . ..nd delivered to h . . .. >■ .md its terms, the latter constituted an< i 1 1., ..-.,1 attornev ^ - ^' and in our o ;on of ai lo which we v aiiUeJ or iuterc- . ' * ^.nd f'^r t"; .. ueeus , '•' '■ '-' an<:i .y : our attorney, and ii: o iness ; * * * and also in our nr receive all sums of money," etc. reive a strict interpretation, and the aii- ^uction beyond thai 'v for carrying the I, auJ thai auLhority uju&t be strictly pursued, i .-, 8 Wend. 204. 24 Am. Dec. 62 : Brant^-'^ -. , lie Ins. Co., 53 J\ }3liss v. Clark, 16 Gray 6< . .i:,-i ■::, t:;,"?. , .,,.,., .acr, 8 Minn. 214 (248), t>., . . . ^4 Minn, 263 (345), i-oo Am. Dec. 229: K.;, ■ .37. And a party dealing with ar; le with he contents of the power under w^ rpivi it at his own peril. Sandford r V. Hyserott, 5 Johns.' 58. ch Chase pretended to co. , . - ..;ry A. Clarke, must be c. ., . u convey such lands only as were held ar, ...,.,*, :-.■..„;. „ :. -ommon^ and " '' Bv its terr. nvned as u.t o interest, n ,ct any uu>inic'%s, except that in whicn the \\ ■ '\ Tlir -. .'hority was special. ■ ;;! li ■ v\ ;- 'IS made of the s.( of tlie court below whicri 1856 i Clarkt Jiv-- NNESOTA. 45 Minn. 121. 'tv, bro«.iq., as referee, .red and frorn iCtS foui! - follov i!l f'-> I to M:i io Edw;;' Benjarnin r considered in On July 14, rney, executed a conveyance to ihi T^iited States \ making vvi^d to decree -' pincha."- ifter confirma- . od. In ]son conveyed il to pi;; ijie defendant A. Clark :•, Bucklin :r.k. 6 Fco. is will construe Mention is clear written contract 'iitention of the ly executed, at- l.. .. ;, „r of the ' strued from oil ; ihc au or is abso- McAllister, - ''-ned as .bly to ., .. .0 opin- icai, and appar- .V. i;. How. (V. RULES OF CONSTRUCTION. 121 were named as grantors, and George A. Bucklin as grantee, was exe- cuted by Bucklin in person, and by Franklin Chase in behalf and as the attorney in fact of Mary A. Clarke. 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 IMary A. Clarke and B. F. Bucklin. By its terms, the latter constituted 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 grant, 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 au- thority 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 pursued. Rossiter v. Rossiter, 8 Wend. 294, 24 Am. Dec. 62 ; Brantley v. Southern Life Ins. Co., 53 Ala. 554; Bliss v. Clark, 16 Gray 60. This rule was applied in Rice v. Tavernier, 8 Minn. 214 (248), 83 Am. Dec. 778; Greve v. Coffin, 14 Minn. 263 (345), 100 Am. Dec. 229; Berkey v. Judd, 22 Minn. 287. And a party dealing with an agent is chargeable with notice of the contents of the power under which he acts, and must interpret it at his own peril. Sandford v. Handy, 23 Wend. 260 ; Nixon v. Hyserott, 5 Johns. 58. The power under which Chase pretended to convey a tract of land, the sole property of ]\Iary A. Clarke, must be construed as author- izing 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 au- thority 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 busi- ness 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 such business. Dodge v. Hopkins, 14 Wis. 630 ; Johnston v. Wright, 6 Cal. 373. This rule is also recognized in Holladay v. Daily, 19 Wall. 606, although the point was not directly in issue. The deed referred to was a nullity, did not convey the land to George A. Bucklin, and when the mortgage given by Mary A. Clarke was foreclosed by action brought against Bucklin alone, the proper party, the owner of the land, was not made a defendant. The 122 EXECUTION OF AUTHORITY. foreclosure sale was void, and a purchaser thereat acquired no in- terest 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. Judgment affirmed.^ CRAIGHEAD et al., executors v. PETERSON. 1878. Court of Appeals of New York. 72 N. Y. 279. This action was brought upon two promissory notes alleged to have been executed by defendant, which were made payable to the order of Samuel N. Pike, plaintiff's testator, at the Park National Bank. The notes were dated July 12, 1872. They were in fact exe- cuted by one Abiel R. Packard, a son-in-law of defendant, in the name of the latter, Packard claiming to act under the following power of attorney : "Know all men by these presents, that I, Robert Peterson, of the city, county and state of New York, have made, constituted and ap- pointed, and by these presents do make, constitute and appoint, Abiel R. Packard, of said city, my true and lawful attorney, for me and in my name, place and stead to draw and endorse 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 do any and all matters and things connected with my account in said Irving National or any other bank in said city, which I myself might or could do, in relation to my deposit ac- count with said Irving National, or any other bank, giving and grant- ing unto my said attorney full power and authority to do and perform all and every act and thing whatsoever, requisite and necessary to be done in and about the premises, as fully, to all intents and purposes, as I might or could do if personally present, with full power of sub- stitution and revocation, hereby ratifying and confirming all that my said attorney or his substitute shall lawfully do or cause to be done by virtue hereof. "In witness whereof, I have hereunto set my hand and seal the eighth day of October, in the year one thousand eight hundred and sixty-nine. Robert Peterson. (L. S.) "Sealed and delivered in the presence of "The words 'promissory note or notes' first interlined. "Jno. S. Patterson." ^ In Veatch v. Gilmer, iii S. W. 746, the following power of attorney was executed : "I do hereby appoint Samuel H. Veatch my true and lawful at- torney; and I do hereby empower him to do any lawful act in my name as if I were present." The court decided that the power of attorney was sufficient to authorize the conveyance of the principal's land. RULES OF constructt<:>n:. 123 L>efendant had no account at the Park National Bank. The c ' i:;'.d on the trial that the power of the attorney conferred no au- tlKinty upon Mr Packard to execute the notes — to which plaintiff's counsel duly Allen, J. ; tintiff's testator, taking the notes by an agent professing to represent the defendant as hi presumed to have known the terms of the power un( ;':ont assumed to act. He was bound to ascertain and k acter and extent of the agency, and the words of the in>i ii-^iL b; which it was created, before giving credit to the agent. If the testa- i ' ■ , 'r with the agent without ' the ext".^ ■ i< ' ..<: -d to him, he did so at his 1 ; must at quences, if the agent acted w^ithout or in excess oi Story on Agency, § ^2. If there was an ambiguity in th the power of attorney, there is no reason why in this case the ' e a forced or unnatural interpretation of the instrument to c '.. ?fator or his rej^resentatives from loss. The transaction w; the city ' "' ^'ork, where as well the supposed principal, as .wx. V\V<\ r! . s testator, and the professed agent resided, and if i"'i. rney was ambiguous in its expression, or of doubt- lv\ , ' . 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 nece?-'*^- -> '^-^.rty dealing with an agent must act upon his own interprets e authority, and take the risk of any doubtful or ambiguous pnraseblogy. 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 orb- authorized to draw and endorse checks on any bank in whici testator had an account, ''and to do any and all matters and t': connected with his (my) account in" such banks, which the prir", "r'.:ht or could do. The last and general words only gave ge. ers to carry into effect the special purposes for which the p given. Attwood v. Munnings, 7 B. & C. 278 ; Perry v. H T., R h J. 38; Rossiter v. Rossiter, 8 Wend. 494; Stoi The primary and special purpose of the power of at- ■> authorize Packard to draw checks in t'-- business of upon and against his accounts in bar . endorse ..;w,ibly for deposit to the credit of the saiiv- .a. nuts. "'^'■ . of the words "promissory note or notes," by an interl I'iLer "chc(k or checks," and before "on any ba- ' I with the M'nitM and speci^.1 r>urp'~'se '~>f the ' r for discoir at the pruv net of the aiu,, . -1,-,,. -,,-, with and in re.-;. EXECUTION C lire sale was voi , the land sold ■, he failed t. jiidgment affirmed.- r thereat acquired no in- G:.hts were predicated upon land in himself, upon the CR ECUTORS i8: ha\ Ba ■ • New Yor* 1 two proni! ;. which wer> jiiitFs testator, July 12, 1S72. '■ trd, a son-ir* '• ■ claimins: t' Y. 279. •^:^ alleged to ■'le to th'.^ •_ Nation a. : in fact exc v Kindant, in tli> :er the following, ats, that terson, of the ' V'ork. 1: -uted and ap- ,-domal. iiu int. Abiel I rue and le and in tw draw an^i v,,.!,.,- ■ >.. ur checks, •, on any bank in tht x'^ew York in ount, and e.^- ' " National ■o any and a'. onnected Irving Natioiiai or any olhcr bank in said ''\t or could do, in relation to my deposit ac- ational, or any other bank, giving arid grant- full power and authority to do and perform ■g whatsoever, requisite and necessary to be ■ premises, as fully, to all intents and purposes, o if personally present, with full power of sub- hereby ratifying and confirming all that my ■titute shall lawful! v do r-- rause to be done I have hereunto n the year one tli in the presence Oi v note or notes' m -■! and seal the hundred and ■ h, V. ('S.t.. tori: to authci .\^ 746, the for ^ uel H. ^■ 1 to do ar ■a tuat the pov. ,.. principal's land. d attorney was nnd lawful at my name as i > IS sufficier,' RULES OF CONSTRUCTION. I23 Defendant had no account at the Park National Bank. The court ruled on the trial that the power of the attorney conferred no au- thority upon Air. Packard to execute the notes — to which plaintiff's counsel duly excepted. Allen, J. — The plaintiff's 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 char- acter and extent of the agency, and the words of the instrument by which it was created, before giving credit to the agent. If the testa- tor dealt with the agent without learning the extent of the powers delegated to him, he did so at his peril, and must abide by the conse- quences, 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 representatives from loss. The transaction was in the city of New York, where as well the supposed principal, as Mr. Pike, the plaintiff's testator, and the professed agent resided, and if the power of attorney was ambiguous in its expression, or of doubt- ful interpretation, 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 authority, 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 draw and endorse 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 v. Munnings, 7 B. & C. 278 ; Perry v. Holl, 2 DeG., F. & J. 38 ; Rossiter v. Rossiter, 8 Wend. 494 ; Story on Agency, § 62. The primary and special purpose of the power of at- torney was to authorize Packard to draw checks in the business of the principal upon and against his accounts in bank, and to endorse checks probably for deposit to the credit of the same accounts. The insertion of the words "promissory note or notes," by an interlinea- tion 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 endorsing of promissory notes, either for discount or payable at the principal's bank, was a natural adjunct of the authority given to draw and endorse checks, and thus deal with and in respect of the bank accounts of the testator. The 124 EXECUTION OF AUTHORITY. 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 endorsing 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 de- fendant 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 commercial transactions which are interpreted most strongly against the writer, especially when they are susceptible of two interpretations, and the agent has acted in good faith upon one of such interpretations. Wood v. Good- ridge, 6 Cush. 117 ; Attwood v. Munnings, supra; Hubbard v. Elmer, 7 Wend. 446 ; Hodge v. Combs, i Black. 192.^ * ''^ * There was no error upon the trial, and the judgment must be affirmed.- Section 3. — Execution of Authority. (a) SEALED INSTRUMENTS. BRADSTREET et al. v. BAKER et al. 1884. Supreme Court of Rhode Island. 14 R. 1. 546. Covenant. On demurrer to the pleas. July 12, 1884. DuRFEE, C. J. — This is an action of covenant broken. The cov- enant, if valid, is a covenant by which the defendants bound them- selves to receive from the plaintiffs, dealers in ice, and co-part- ners under the firm of the Centennial Ice Company, at Pitts- ton, Maine, between June i, 1878, and October i, 1878, five thousand tons of ice, and to pay them for it at the rate of one and one-half dollars per ton, and to pay in full in cash at said rate for all the ice remaining unshipped October i, 1878, the ice so remaining to be the property of the plaintiffs. The defendants made default by not receiving, though the plaintiffs were ready to deliver, the ice ac- ^ A portion of the opinion regarding ratification is omitted. " "An agreement 'to conserve the best interests of the agency' adds little, if anything, to an agreement to act as agent." Morton, J., in Butterick Pub. Co. V. Boynton, 191 Mass. 175, 179. MENTS. to the contract. and second, that the (?s, the stipulated dainaf,vi> i>cuig mai.i is: Dtd the '- bind - t. : ■'. ■/. • I-,.-!' ■ , . by the ]< led by their iL 1 '-•.. ' ! . I J. J v. . 1 . M attorney ' ■ • ' vg-reement made this fiftt , R. 1., , -ained iu ;s between "the said , i ihe second '^'""^ " ♦^''"• to wit : ' -reunto ainxcu ni'.'i.r naix-i^ ■n, (Signed; "J. "J.' "E. G. Baker. J ..V v;v.iv..i.v^a.ie- «.-:.L^.i. liiat thc executjon .s.^., j.,.>. ... ...^i. cause the instrument does not contain the sicrnatures of the pa^ '' *" • ' ' -lire of t' , by an ?-■. '. for ill 1.5 ivir u :ii the name of rial provided it "j;i;ic'.ii f the ini The tliias vv ilks, [L. S.]. ror Janje^ ... -..]." The Court of Vvs'\ P.rndi de^ s good. "Here the boi. ecuted," 1, lor li incted the ^... . --; .i.ij, vi ^ommerci:'^ ction with the banks wi vhich would properly enr Mid the dc- ;; ling powers and the authority is not or vrliirh i^ iT'^'-essary ■e not u ic.-b formal ial traiisactions v/ liter, especially 'ird tlie asrent has viioiity. - leas, July 12. 1884. • if rov Tianf broken. The cc ?ants bound the,, n il: .iian. • ■ ', and co-pa' ^ntennial Ic- inv, at Pit' .'iOctob ' ■ •' 't the r all the - I ing to ie fault by n .y" adds little, itterick Pub. C SEALED INSTRUMENTS. I25 cording to the contract. The plaintiffs sue for damages, claiming the stipulated price of the five thousand tons as liquidated damages. The defense is, first, that the defendants are not bound because the plaintiffs were not bound by the covenant, the obligations thereof being mutual or dependent; and second, that the plaintiffs can re- cover only their actual damages, the stipulated damages being mani- festly designed as a penalty. The first question is : Did the plaintiffs bind themselves by the covenant? The contract was not executed by the plaintiffs in person, but it was negotiated for them and signed by their agent, J. S. Brad- street, who had a sufficient power of attorney under seal. The con- tract begins thus : "Agreement made this fifteenth day of February, 1878, between the Centennial Ice Company, of Pittston, Maine, party of the first part, by J. S. Bradstreet, agent, and Joseph K. Baker, of Dennisport, Mass., and E. C. Baker, of Providence, R. I., parties of the second part, witnesseth." The stipulations contained in the body of the instrument purport to be stipulations between "the said party of the first part" and "the said parties of the second part," no names being given. It concluded as follows, to wit : "In witness whereof, the parties have hereunto affixed their hands and seals the year and day first above written. (Signed) "J. S. Bradstreet, Agent. [L. S.] "J. K. Baker. [L. S.] "E.G.Baker. [L. S.]" The defendants contend that the execution was ineffectual be- cause the instrument does not contain the signatures of the party of the first part by their agent, but only the signature of the agent him- self. Undoubtedly, in the execution of a deed by an agent, the most approved form is for the agent to sign the name of his principal, writing his own name below, with the word "agent" following, and the preposition "by" preceding it. See City of Providence v. Miller, II R. I. 272, 277, and cases there cited. But the form is not mate- rial provided it appears on the face of the instrument that the deed was executed by the principal acting through his agent and not by the agent himself. In Wilks v. Back, 2 East 142, an arbitration bond was given by Mathias Wilks for himself, and under a power, for his co-partner, James Browne. The signatures were affixed as follows, to wit: "Mathias Wilks, [L. S.]." "For James Browne, Mathias Wilks [L. S.]." The Court of King's Bench decided that the execution was good. "Here the bond was executed," say the court, "by Wilks for and in the name of his principal, and this is distinctly shown by the manner of making the signatures. Not even this was necessary to be shown, for if Wilks had sealed and delivered it in the name of Browne, that would have been enough without stat- ing that he had so done." The case was followed with approval in Mussey v. Scott, 7 Cush. 215, where the form of the signature was "B for A." It was also followed by the Supreme Court of Vermont 126 EXECUTION OF AUTHORITY. in McDaniels v. Flower Brook Manuf. Co., 22 Vt. 274. There the operative clauses were in the name of the corporation "by William Wallace, their agent ;" the covenants were in the name of the corpora- tion. The deed concluded, "In witness whereof, we have hereunto set our hand and seal," and the signature was, "William Wallace, Agent for the Flower Brook Manufacturing Company." The court said that the execution, in connection with what preceded it, must be un- derstood to be an execution in the name of the company. And see to the same effect, Martin v. Almond, 25 Mo. 313. It seems to us that there is no material distinction between these cases and the case at bar. The case at bar would be identical with them if the words "for the Centennial Ice Company" had been added to the signature. But those words, if added, would express nothing which is not expressed without them by the signature, taken in connection with the testimonium clause and covenant which precede it. The seal is stated in said clause to be the seal of the principals, and the hand to be their hand, evidently because the agent signed for them. In Abbey v. Chase, 6 Cush. 54, and Ellis v. Pulsifer et al., 4 Allen 165, the Supreme Judicial Court of Massachusetts de- cided that such an execution did not bind the agents, the action being against the agents, but expressly refrained from saying that it did not in their opinion bind the principals. See, also, Varnum, Fuller & Co. v. Evans, 2 McMullan 409 ; Hunter's Admr's v. Miller's Exec'rs, 6 B. Mon. 612; Bryan v. Stump, 8 Gratt. 241; M'Ardle v. The Irish Iodine Company, 15 Ir. C. L. Rep. 146. It is true that some of the textbooks say, and some of the cases seem to imply, that the name of the principal must necessarily appear in the signature. But we do not see the necessity. When A, being agent for B, signs the deed, "A for B," or "A, agent for B," his own name is the sig- nature, the other words being used to denote that he makes the sig- nature, not for himself, but for his principal. And surely, if this be so, it is unnecessary to use those words if the thing which is denoted by them be otherwise apparent.. The defendants cite and rely on Townsend v. Corning, 23 Wend. 435; Townsend v. Hubbard, 4 Hill (N. Y.) 351; Brinley v. Mann, 2 Cush. 337; Lessee of Clarke v. Courtney, 5 Pet. 319, 350; but in each of these cases the deed was not only signed in the name of the agent, but the seal was stated in the testimonium clause to be his seal. Of course the deed could not be the deed of the principal unless the seal was his seal. Indeed, in Townsend v. Hubbard, supra, Chan- cellor Walworth declared that no particular form of words is neces- sary to make the deed the deed of the principal, "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 Bellas V. Hays, 5 Serg. & R. 427, likewise cited for the defendants, it did not appear that the seal was the seal of the principal, there be- i ■■; - \vas assumed tj be the seal ' ; ;• iied his own name simply, wi ••word ;iL/- L .i; ; • i.ictj. 1 he counsel for the defendants G iI:l; words ('t J'^idgc Story in Lessee of Clarke v. Cotf-nc •, ^ that "the lavy Icx^ks not to the intent alone, but to the ether that int'"* ' '~>een executed in such manner as +'■ ■•'^^' validit} . ubtedly. But, in his work on Ag ireatir.L natter, says : "In all cases where the u ]'!(»- ■■■■■■ to be intended to be the deed of the ['-,c on of it by the agent, hov^-ever i:: ^ ;^nant to that purport, it would pr deed of the principal, especially where the in that the principal has thereto affixed his seal." c.-^- V 1 ' 53, cited in Martin v. Almond, supra. Our con- hintiffs were bound by the contra^^' "• ' ''"- can be maintained.^ * * * 2 DAWbU.\ V. COTTON. jUPREme Court of Alabama. 26 Ala. 591. i: tion (Henry T. Dawson v. Cyrus Cotton) the writ wa^ in iwj/;-'/ v,/, and the declaration in debt, on a promissory not- ' which thi' following is a copy: f; Twenty days after date I promise to pay to James Thomp- son, or ■.M- \tT, four hundred - ' '- -ty-two dollars, value recr' -: Given under my hand and sea i day of December, A. D. ' iiEi«:jAMiN Watson, [seal] "Agent for Cyrus Cotton, Sen." The plaintiff declared ps the endorsee of the payee: and the de- ■ ■ ' 'ayment, and non est fee \>' .. On the trial, as the bili ' imtiti ortcrcd in evidence the note declared on ill... c!; .-; >. :;;c:ri: thereon; and the defendant '.inf^rr.r] to its ■ duction "on the specific and single ground v s not, c ■^'■c of the notf '" "' - :d and sealed in >iiui ;i man:"- he the defer it the agent only by whom il decided tha re the jurv. 'ained tiie.uDit'ct ,t from t' lie UcCtJ Oi i\.. -I IIL'IC KIC 'id se£ii, .nver r^ ■pressed .he te'^ii'i' is stai hand lu ■ • hem. In imtun- i "by William jf the corpora- vt hereunto set lui Wallace, Agent : ;■ ,."' The court said I with what preceded it, must be un- ' Mme of the company. And see J, 25 Mo, 313. It seems to us ctween these cases and the case ientical with them if the words •-d been adde^s nothing which is not ken in connection with '"ccede it. The seal irincipals, and the agent signed for - V. Pulsifer et al., .; Lcuii i;i; Massachusetts de- K^t bird the agents, the action : led from saying that it .. ,. . , .s. See, also, Varnum, an 409 ; Hunter's Admr's v. Miller's ■' Stump, "^ ' ■ • "i; M'Ardle , C. L. 1< • :. true that c^.ni 10 imply, that .ir in the signature. iiuii A, bciiig- agent for B, signs '■?r B," his own name is the sig- j denote that he makes the sig- rincipal. And surely, if thijs be ds if the thing which is denoted the de is his Bellas ling, 23 Wend. Y.) 351 ; Brinley v. Mann, iiey, 5 Pet. 319, 350; but in \ signed in the name of the '-/niinr, i-i:iii-r- i<, bc liis scal, unless the ■Va, Chan- ;- is neces- ic appears xecuted as instrument rely," In lie defendants, SEALED INSTRUMENTS. I27 ing no testimonium clause, and it was assumed to be the seal of the agent. The agent, moreover, signed his own name simply, without the word "agent" appended. The counsel for the defendants quotes the words of Judge Story in Lessee of Clarke v. Courtne}^ supra, that "the law looks not to the intent alone, but to the fact whether that intent has been executed in such manner as to possess a legal validity." Undoubtedly. But, in his work on Agency, Judge Story, treating of this matter, says : "In all cases where the instrument pur- ports on its face to be intended to be the deed of the principal, and the mode of execution of it by the agent, however irregular and informal, is not repugnant to that purport, it would probably be con- strued to be the deed of the principal, especially where the in testi- monium clause is that the principal has thereto affixed his seal." Story on Agency, § 153, cited in Martin v. Almond, supra. Our con- clusion is that the plaintiffs were bound by the contract, and, there- fore, that the action can be maintained.^ * * * 2 DAWSON V. COTTON. 1855. Supreme Court of Alabama. 26 Ala. 591. In this action (Henry T. Dawson v. Cyrus Cotton) the writ was in assumpsit, and the declaration in debt, on a promissory note, of which the following is a copy : "$442. Twenty days after date I promise to pay to James Thomp- son, or order, four hundred and forty-two dollars, value received. Given under my hand and seal this 22d day of December, A. D. 1835. "Benjamin Watson, [seal] "Agent for Cyrus Cotton, Sen." The plaintiff declared as the endorsee of the payee ; and the de- fendant pleaded, nil debet, payment, and iion est factum, the last plea being verified by affidavit. On the trial, as the bill of exceptions discloses, the plaintiff offered in evidence the note declared on, with the endorsement thereon; and the defendant objected to its intro- duction "on the specific and single ground that it was not, on the face of the note itself, signed and sealed in such a manner as to make the defendant liable, but the agent only by whom it was exe- cuted (if any one) was liable. The court decided that said note, on its face, was absolutely inadmissible before the jury, and therefore sustained the objection to it and excluded it from the jury ;" to which ^ A portion of the opinion is omitted. °In Mussey v. Scott, 7 Cush. (Mass.) 215, it was held that a deed executed "B for A" is the deed of A. 128 EXECUTION OF AUTHORITY. ruling of the court the plaintiff excepted and was forced to take a nonsuit. This ruling- of the court is now assigned for error. Chilton, C. J. — The sole question in this case is whether the note offered in evidence, unaccompanied with any offer of extraneous proof explanatory of it, was proper evidence for the jury; in other words, whether it created, prima facie, an obligation upon Cotton, the alleged maker. It is in these words : "Twenty days after date I promise to pay to James Thompson, or order, four hundred and forty-two dollars, value received. Given under my hand and seal this 22d day of December, 1835. "(Signed) Benjamin Watson, [seal] "Agent for Cyrus Cotton, Sen." In Martin v. Dortch, i Stew. 479, a sealed instrument, executed substantially as the above, was held to be well executed by the person for whom the maker described himself as agent ; but this decision was virtually overruled in Skinner v. Gunn, 9 Porter 305, and (we think) cannot be regarded as a correct exposition of the law. We perceive no difference, in principle, between this case and that of Skinner v. Gunn, supra. True, in that case the body of the instru- ment read, "I, Isaac Hughes, for and in consideration," etc., and concluded, "In witness whereof I have hereunto set my hand and seal — (Signed) I. Hughes [seal], Attorney for Livingston Skin- ner," while in this case, the name is not put in apposition with the pronoun. But it is too clear to admit of any doubt that the pro- noun stands for Watson, whose seal is attached, and who, in the attestation, says, "witness my hand and seal." It is, in our opinion, the seal and obligation of Watson, and the addition of "Agent for Cyrus Cotton, Sen.," must be regarded as descriptive of the person. See Carter v. Doe ex dem. Chandron, 21 Ala. Rep. 72, where the principle here involved is incidentally discussed and a number of the authorities cited. Story on Agency, § 151 ; Story on Contracts (3d ed.), §§ 141, 142. Whether a different interpretation might not be given to the instrument, if it had not been under seal, it is not necessary now to decide. Let the judgment be affirmed.^ ^Accord: Kiersted v. Orange, etc., R. R. Co., 69 N. Y. 343. "The rule is unquestioned, that a conveyance executed by an agent or attor- ney, to operate in a court of law as a transfer of the right and interest of the principal must be made in the name of the principal and must be executed as his deed. There is no rule of law more firmly settled, and supported by greater uniformity of decision, though it may seem narrow and technical, and may often operate [to] the disappointment of the clear and manifest purpose and inten- tion of the parties." Brickell, C. J., in Taylor v. Agricultural, etc., Assn., 68 Ala. 229, 237. See Woodbury v. King (N. Car.), 68 S. E. 221. HAZEN. ;e Court of Connecticut. 4 Conn. 495. -Did the defendant bind himself by his covenants the next question. The dec ' +c-d by him Hazen, Administrator," and lants were ds: "I, the said Ehjah, do f' . - heirs, nistrators, covenant with the :v, his .at at and until the ensealing I c premises, as a good, indefei. .:- od right to bargain and sell the same -r ''•*'"en;and that the same is free from <.... cept as above." These covenants n>. ,1. lit r.v ' -jcileat quam pereat, i^'rtn '^f es at the time of mai ibL ni respect of their meanin -ich is the most strong agains, d to the other party. Hookes v. Swain, i Lev. ^ ^ i. ;. Amner V. Luddingt-^'" '^"'^ ,''r>- t n,,'c;tr- t-t- Lit. 134; Plowd. 156. ' ' . clear that the power 01 sale given by ine :_ourt df^fendant, without prescribing the manner in ited, authorized him to make such an instru- \- proper for the conveyance of the deceased's .'. Eyre, i P. Wms. 741 ; 4 Cruise's Dig. 254. ^ not required by his duty and trust to enter into ■I •: imt for the security of the title to the property lor for rhe validity of the conveyance, and it h. ihat for this pnrpos;e he had authority to hinn ■. It is unq^' is formal ani: and vox et preterca nthiL .\ . ........ . enter into covenant, 1"< '*^'" ose to excite in this manner the T'-ir.: the proceeds of the sale, -.i; •At to do anvthing that for th< Mjard's ^'~ constri! nng on him personally, for they can 1 ^r> If the words of his ...v; :ini and he only, int. <.. tenanted ..;^aiAUD C.vSi,i,. rtiUiig- 01 the court tnc fir,rt.nes 1 iiompson, or . received. Given •, 1835. [seal] us Cotton, Sen." trument, executed ated by the person ■ent; but this decision ' T'-rter 305, and (we of the law. We . case and that of ■ tdy of the instru- ' n," etc., and illy Iiand and lor Livingston Skir m apposition with tli. • doubt that the pro hed, and who, in ti. It is, in our opinion, ■ ■ ion of "Agent fo. Live of the person >!. Rep. "J 2, where the 1' .-rnd a number of on Contracts "■^'on might i, it is not -iersted v " i he r;;ic is unq ney, to operate in t or attor- T^%\. of the opt tioii Ala. 2i!y See W and inten- SEALED INSTRUMENTS. I29 MITCHELL V. HAZEN. 1823. Supreme Court of Connecticut. 4 Conn. 495. HosMER, Ch. J. — Did the defendant bind himself by his covenants personally? This is the next question. The deed executed by him was signed, "Elijah Hazen, Administrator," and his covenants were in the following words: "I, the said Elijah, do for myself, my heirs, executors and administrators, covenant with the said Timothy, his heirs and assigns, that at and until the ensealing of these presents, I am well seised of the premises, as a good, indefeasible estate in fee- simple ; and have good right to bargain and sell the same in manner and form as above written ; and that the same is free from all incum- brances whatsoever, except as above." These covenants must be construed with effect, ut res niagis valcat qiiaui pereat, and corre- spond with the intention of the parties at the time of making them ; and if there remains any doubt in respect of their meaning, they are to be taken in that sense which is the most strong against the cove- nanter and beneficial to the other party. Hookes v. Swain, i Lev. 102; s. c. I Sid. 151 ; Amner v. Luddington, And. 60; i Bulstr. 175; Hob. 304; Co. Lit. 134; Plowd. 156. It is indisputably clear that the power of sale given by the court of probate to the defendant, without prescribing the manner in which it was to be executed, authorized him to make such an instru- ment only as was legally proper for the conveyance of the deceased's estate. Longford v. Eyre, i P. Wms. 741 ; 4 Cruise's Dig. 254. The defendant was not required by his duty and trust to enter into any personal covenant for the security of the title to the property conveyed, nor for the validity of the conveyance, and it has not been contended that for this purpose he had authority to bind the heir of the deceased or to subject the assets. It is unquestionable that un- less he bound himself personally his formal and solemn covenants under seal were a nonentity, and vox et preterca nihil. Although he was under no obligation to enter into covenant, he was at liberty to do it, if he chose to excite in this manner the confidence of pur- chasers, or to enlarge the proceeds of the sale, upon the general principle that a covenant to do anything that for the substance and matter of it is lawful is good. Sheppard's Touchstone, 159. If the covenants of the defendant are to be construed as having any effect, they must be considered as binding on him personally, for they can be obligatory on no other person. So if the words of his covenant are at all indicative of his meaning, he, and he only, intended to be holden to the performance of them. It is worthy of remark that he has covenanted, not only for him- self, but for his heirs, executors and administrators, which places his intention in an irrefragible light. With respect, then, to the in- 9 — Reinhard Cases. 130 EXECUTION OF AUTHORITY. tentions of the covenanter, or the effect of his covenants, there can exist no serious question, unless the mind Avill admit the palpable absurdity that he meant nothing. There being- subjoined to this signature the word "administrator," and the subject-matter of his conveyance being the estate of other persons, cannot invalidate the construction given to his act. The former was unnecessarily, I admit, a descriptio persona only, and the latter is not prohibitory of any law- ful agreement he should please to make. It has long been an estab- lished principle that whenever a man undertakes to stipulate for an- other by an instrument under seal, without authority, or beyond authority, he is answerable personally for the non-performance of his contracts ; and if he choose to bind himself by a personal cove- nant, he is legally liable for a breach of it, even although he describe himself as covenanting as trustee, agent, executor or administrator. Appleton V. Binks, 5 East 148 ; Thacher v. Dinsmore, 5 Mass. 299 (4 Am. Dec. 61) ; Sumner v. Williams, 8 Id. 162 (5 Am. Dec. 83) ; Duvall V. Craig, 2 Wheat. 45 ; White v. Cuyler, 6 T. R. 176; Wilkes V. Back, 2 East 142 ; Tippets v. Walker, 4 Mass. 595 ; Thayer v. Wendall, i Gall. 37. The determinations in Sumner v. Williams and Duvall v. Craig go the full length of the present case, and are applicable to it on a principle of strict analogy. The case of Coe v. Talcott, 5 Day 88, is a strong authority in support of the opinion expressed, and contains this important principle : that "a trustee acting within his powers does not render himself liable on his contracts and conveyances ; but wherever he exceeds his powers and undertakes to transfer and con- vey without authority, he becomes personally answerable to the grantee on his covenants." This is precisely the case before the court. The defendant exceeded the powers with which he was in- vested, and undertook to transfer and convey, in a manner which he had no right to do, and, therefore, without authority. It results, then, that he is personally liable, on the principle of the case last cited, as well as on the other legal grounds before discussed. HALE V. WOODS. 1839. Superior Court of Judicature of New Hampshire. 10 N. H. 470. The deed of an attorney must be in the name, and purport to be the act and deed of the principal. Where the grant and covenants of the deed were in the name of the principal, and the attorney executed the deed as follows : "D. K., attorney for Z. K.," it was held to pass the interest of the principal. iV. •tly in K. '! lie vidence, m support of his title, a deec f andZachariah K"'- i li r ,i -Tn-irrlj^nr. rth in the opinici t . to rtffiie it i" '^' ~ ""e. . flnlv empo\ Zachariah .e the aer ihe deed ■ ' well as of nants m icribed • d. If M r:.:-:- , _.. . __.:, file / I'cM thc titlC nanded premise - • le in only one-f . M-.i... ■■...-.,. the iiirv that th 1 inter e^ ariah 1. mt, for one-half of the lit riioved to set the same an attorney, to be valid, must be in the :t and deed of the principal. Fowler v. ■V. Shaw, i6 Mass. 42; Stinchfield v. 11 V. Shaw, I Greenl. 339; Cofran v. -prornery v. Dorion, 7 N. H. ^1^4. Bii' ■struraent n ■ ?.ny partic' as in other rules of law. Jack- tt, 16 n, I Mass. 219; L'a id forev lous qu ,1 1. ., , rovcnauts, there can • the palpable '• '^d to this 'er of his lidate the I admit, imiate for an- !y, or beyond rfonnance of - onal cove- .0 describe tdiuinistrator. , 5 Mass. 200 Mil. Dec ■. I76;V JS •> Tha; ill V. Craig go >le to it on a , 5 Day 88, is ! contains ... is powers ::ontract mces ; but mdertakv . ,.. ..u-^r and con- personally an.^werable to the !)efore the e was in- ' a manner which iiority. It results, uciplc of the case last and purport J re in the name of - Hows: "D. K.. r the principal SEALED INSTRUMENTS. I3I Writ of entry, to recover a tract of land situated partly in IStashua and partly in Mollis, in the county of Hillsborough. The demandant gave in evidence, in support of his title, a deed from Daniel King, for himself and Zachariah King, to the demandant. The tenor of the deed is set forth in the opinion of the court, so that it becomes unnecessary to recite it in the case. Daniel King was duly empowered by Zachariah to execute the deed ; and the only question was, whether the deed was duly executed to pass the interest of Zachariah as well as of Daniel, they being tenants in common of the premises described in the deed. If it passed the interest of Zachariah, the demandant held the title of one-half the demanded premises. If it passed Daniel's right merely, he held the title in only one-fourth of the demanded premises. The court directed the jury that the title and interest of Zachariah were transferred to the demandant by the deed. The jury returned a verdict for the demandant, for one-half of the demanded premises, and the tenant moved to set the same aside for misdirection of the court. Upham, J. — The deed of an attorney, to be valid, must be in the name, and purport to be the act and deed of the principal. Fowler v. Shearer, 7 Mass. 14; Ellwell v. Shaw, 16 Mass. 42; Stinchfield v. Little, I Greenl. 231; Ellwell v. Shaw, i Greenl. 339; Cofran v. Cochran, 5 N. H. 459 ; Montgomery v. Dorion, 7 N. H. 484. But whether such is the purport of an instrument must be determined from its general tenor, and not from any particular clause. Such construction must be given in this, as well as in other questions aris- ing on conveyances, as shall make every part of the instrument op- erative as far as possible ; and where the intention of the parties can be discovered, such intention should be carried into efifect, if it can be done consistently with the rules of law. Jackson v. Blodgett, 16 Johns. 172; Bridge v. Wellington, i Mass. 219; Davis v. Hayden, 9 Mass. 514; Hatch v. Dwight, 17 Mass. 289. The deed which is under consideration in this case was executed by Daniel King, for himself and for Zachariah King, a joint owner of the land. The terms of the conveyance are : "I, Daniel King, as well for myself as attorney for Zachariah King, doth for myself and the said Zachariah, remise, release, and forever quitclaim the prem- ises described in the deed, together with all the estate, right, title, interest, use, property, claim and demand whatsoever, of me, the said Daniel and said Zachariah, which we now have, or heretofore had at any time in said premises. And we, the said Daniel and Zachariah, do hereby, for ourselves, our heirs and executors, covenant that the premises are free from all incumbrance, 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 said Daniel, for himself, and as attorney aforesaid, have hereunto set our hands and seals," etc. Signed, Daniel King, and also, "Daniel 132 EXECUTION OF AUTHORITY. King,, attorney for Zachariah King, being duly authorized as appears of record," with seals affixed to each signature. 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, of all the interest which zve 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. In Wilks V. Back, 2 East. 142, the court say : "There is no par- ticular form of words required to be used, provided the act be in the name of the principal, for where is the difference between signing I. B., by M. W., his attorney (which must be admitted to be good), and M. W. for I. B. ? In either case the act of sealing and delivery is done in the name of the principal, and by his authority. Whether the attorney put his name first or last, cannot affect the validity of the act done." 2 Stark Ev. 477, 605 ; see also, Montgomery v. Dorion, 7 N. H. 484, where the principle of the case of Wilkes v. Back is fully sustained. We are of opinion that the deed as executed passed the title both of Daniel and Zachariah King. The plaintiff is, therefore, entitled to recover one-half the demanded premises, and judgment will be entered on the verdict for that amount.^ WOOD V. GOODRIDGE and another. 1850. Supreme Judicial Court of Massachusetts. 6 Cush. 117. This was an action of trespass to land. Benjamin Goodridge, Sr., of Lunenburg, on the 12th of April, 1832, executed and delivered to Levi Goodridge, one of the defend- ants, under his hand and seal, and in the presence of subscribing witnesses, a power of attorney, of which the following is a copy : "Know all men by these presents, that I, Benjamin Goodridge, of ^"The objection to the admission of the deed was, that the name of the at- torney, instead of the name of the principal, was signed to it. There was, however, enough on the face of the deed to show that the attorney, in thus signing his own name, was acting as attorney and not as principal. That be- ing so, the deed was unquestionably a good execution of the power in equity." Benning, J., in Tenant v. Blacker, 27 Ga. 418, 421. "No particular form of words is necessary for an agent to bind his princi- pal, if he expresses in the instrument the capacity in which he acts. Deeds are to receive a construction from the whole taken together ; and every deed ought to be so construed as to effect the intention of the parties." Peters, J., in Magill v. Hinsdale, 6 Conn. 464, 469. STRUMENT5. 133 . in the of Worcester and common wealth of .;■, for a g-Qod consider.-; ^ ■ . ?.nd appointed, and do he ■ i , Levi c, of the same 1 iid lawfv y, for me and i. r and use, to buy and sell real and pert ;jerty, and Orient deeds to make, execute and delr \ naqie, in .1 conveying the same, also for me v name to :.!':'" • :'' " in law for tl). ' ' ' - : and vindii . to be i ly do I • mill, and buy and sell logs, >.. things in an-l -1v..'t the same, ^ .. -.. . for the pro) jrovement and use of such means as I p •-.-:--, tor the enlargem' -^ ■■' ■ ' 'ng and confirming whatsoever my sa' :■■: ui the premises as fully and effectually as i : ;iy present at the doing of the same. In w hereunto set my hand and seal this twelfth day oi ■jy of oilr T.uril .^nf; ihoi.-^and e'dit himdred ?.nd ler his power of attorney, made a promissory note to ' ' ' ' c to secure the lior. The "ote ibing will s attorney, Benjamm Goodridge." I'he bo by an attorney, employed by Levi Gc""''' and by whom the words "Benjamin " ' t^ followed b ■ ..'I of writing 'so written by the same attorn e v. at the who produced the power o that he was aut'-'^r; - >,' tr , senior, and he duly r M.nij'.:v J'-i ' lonzea as appear, d," with sea' '.ants in . ' -enants of ■■ anfl V ;■ purports 'aniel and -j\. -:- . .„ . ., iieretofore , together with the covenants, ■ ^.w.lv of the principal, the execution ■leed wc ent to effect the intent of the "There is no pa^ '^ act be in the reen signing 1. 1 to be good), and -. . ... ^ -i id deUvery is done in the nan;: tv. Whether the .irtornc ■ ■ lii'Mi all'-; the vaHdity of the .t t (!o: also, Montgomery v. Dorion, 7 th-e case of Wilkes v. Back I 1 passed the title both ,: V is, therefore, entitle""' to recover ' and judgment will ] ANOTHER. Massachus! ,.ind. • ienburg, on the I2th of Apr- ' Goodridge, one of the defend ' in the presence of subscribing ■ : ^u +'-,.. f .■■ ... ;,,,-, i«; a copy: 'xx)d ridge, of •: the deed was, that the name of the at- '■'"^•'~'!' '•■ ■•■""■'■-' ■ ■ '' There was, cy, in thus c, :. That be- I execution oi the power in equity." n agent to bind his princi- p;'.;, Ill which he acts. Deed."? :u(. I •ogcther; and every deed ^.rrfhi f. ■! the parties." Peters, J., in ^:ae: SEALED INSTRUMENTS. I33 Lunenburg, in the county of Worcester and commonwealth of Massachusetts, gentleman, for a good consideration me hereunto moving, have constituted and appointed, and do hereby constitute and appoint my son, Levi Goodridge, of the same Lunenburg, gentle- man, my true and lawful attorney, for me and in my name but for my benefit and use, to buy and sell real and personal property, and good and sufficient deeds to make, execute and deliver, in my name, in transferring and conveying the same, also for me and in my name to move and institute all necessary suits in law for the recovery and col- lection of my demands, and to assert and vindicate my rights, and to appear and defend in all suits to be instituted against me in any courts of law or equity ; especially do I empower my said attorney to carry on my sawmill, and buy and sell logs, timber and lumber, and do all necessary things in and about the same, and in general to make such contracts for the profitable improvement and use of such property and other means as I possess for the enlargement of my estate ; hereby ratifying and confirming whatsoever my said attorney shall lawfully do in the premises as fully and effectually as I could were I personally present at the doing of the same. In witness whereof I have hereunto set my hand and seal this twelfth day of April, in the year of our Lord one thousand eight hundred and thirty-two." On the 28th of April, 1834, Levi Goodridge, professing to act therein under his power of attorney, made a promissory note to Sewall Goodridge, and executed a mortgage to secure the same, both in the name of Benjamin Goodridge, senior. The note was in the common form, for $338.52, payable to Sewall Goodridge or order, and signed, in the presence of a subscribing witness, "Benjamin Good- ridge, by his attorney, Benjamin Goodridge." The body of the note was written by an attorney, employed by Levi Goodridge to prepare the papers, and by whom the words "Benjamin Goodridge, by his attorney," were also written, to be followed by the signature of Levi Goodridge ; but the latter, instead of writing his own name, wrote that of Benjamin Goodridge. The mortgage deed was also written by the same attorney, at the request of Levi Goodridge, who produced the power of attorney above mentioned, and stated that he was authorized to execute the deed by Benjamin Goodridge, senior, and he accordingly signed the name of "Benjamin Goodridge" to the deed without adding his own signature as attorney, or any words to indicate that the signature was not made by Benjamin Goodridge himself ; nor did the body of the deed contain any statement indicating that it was made by Benjamin Goodridge by his attorney, or in any other manner than by him per- sonally. The deed was acknowledged by Levi Goodridge, before a justice of the peace, as the attorney of Benjamin Goodridge, to be the deed of the latter. The power of attorney and the mortgage were duly recorded in 134 EXECUTION OF AUTHORITY. the registry of deeds, at the same time, and the mortgage subse- quently foreclosed. The place of the supposed trespass was embraced in the mort- gage, and the plaintiff claimed title under the same by mesne con- veyances from Sewall Goodridge. The defendants derived their title by conveyances from Benjamin Goodridge, senior; upon which sundry questions were raised and argued, which became immaterial by the view taken by the court of the case for the plaintiff. The case was submitted to the court of common pleas, and by ap- peal to this court, upon an agreed statement, from which the fore- going facts appeared. Fletcher, J. — The first question, as to the plaintiff's title to the land, is, whether the form of executing the mortgage and note by the attorney was a legal execution of his power as such ; whether sign- ing the name of the principal, Benjamin Goodridge, as if it were his own personal act and signature (if not appearing upon the instru- ments to be done by Levi as attorney), was a good execution of the instruments under the power, so as to make them valid as the deed and note of Benjamin, and thus effectually to convey the land to Sewall Goodridge by the mortgage, under which the plaintiff's title is derived. When one writes the name of another to a deed, in his presence, at his request, and by his direction, the act of writing is regarded as the party's personal act, as much as if he had held the pen, and signed and sealed the instrument with his own hand. Story, Ag., § 51 ; Ball v. Dtmsterville, 4 T. R. 313 ; Lovelace's Case, W. Jones, 268 ; Hibblewhite v. M'Morine, 6 M. & W. 200, 214, 215 ; Gardner v. Gardner, 5 Gush. 483. In the present instance, the deed and note were not executed by Benjamin personally; nor in his presence, but in his absence; and, so far as appears, without his knowledge. But, upon the face of the papers, they appear to have been signed by him personally and with his own hand. In fact, they were signed by Levi ; but it does not appear, upon the face of the papers, that in signing the name of Ben- jamin, Levi acted as his agent, or intended to act under the power of attorney from Benjamin, or meant to execute the authority given by that power. The deed and note, which thus appear to be signed by Benjamin personally, when, in fact, they were signed by Levi, are not such instruments as Levi was authorized to make. He was authorized to make instruments in the name of Benjamin ; not as made by Ben- jamin personally ; but by Levi, in his name, as his attorney. It should appear upon the face of the instruments that they were executed by the attorney, and in virtue of the authority delegated to him for this purpose. It is not enough that an attorney in fact has authority, but it must appear by the instruments themselves which he executes that he intends to execute this authority. The instruments should be ^35 -icli attorney ; and the e; -,; ^ho instruments. The instri speak for n the attorney should intent to be the ;;i :.u( i[:ril, yet it will not be the deed o. -"-^i ^^n- trument purports on its face to be his that th' 'all execuie tae m^ '^■' .mie of I; ii learning and uimjn discussion in the h<:> <^ proper mode of executing authority by ;.. mi agent should execute his authority, so as to bind • 'TQt bind himself, has been a subject largely con- jy works, and much discussed in numerous ad- iic rule commonly laid down by all the authorities is. principal, the instrument must purport, on its face, mcnt of the principal, and executed in his name; or, :ic tenor of the instrument should clearly show thnt .d IS intended to be bound thereby and that the age; IS '\'xecution of insitruments by agents in this dties and d? ;ode, the pri ; nnent, would have no means of knuu - gned or whether he was bound or n . -;, i nd other persons might be great ■ .' upon such signature as th<- ■ , il, when the event might :t who had mistakeii ' a ')?! v,":is not bound. 'C 48, 153. EXECUTION K registry of deeds, ai thi '■ ''"'^closed. ; of the ■ his coi -i^Lorney wa. •iLf the naniL 'j'.vn persoiKi: ments to be instruments and note oi '-ewall Goodri' ;s derived. K- party s • 'T^ed and ;i; Ball v S ; Hibble urdner, 5 t in the pr^ ••'"I: in rp 1*1 L J air appcn: the att. pur it 1-. ii- intends ire this . and the mortgage subsc as embraced in the mort ■' '-v mesne con- '/ed their title I igc, aciju/i : upon which :, which became immaterial case for the plaintiff. t of common pleas, and by ap- latement, from which the fore- as to the plaintiff's title to the uing the mortgage and note by the his powe^ T- -^uch ; whether sign- •ijamin ( , as if it were his if not . ; upon the instru- ney), m 1 execution of the is to ma.-s- :..■ >n valid as the deed effectually to convey the land to under which the plaintiff's title ^her to a deed, in his presence, : e act of writing is regarded as - if he had held the pen, and ih his own hand. Story, Ag., 13; Lovelace's Case, W. Jones, :t W. 200, 214, 215 ; Gardner v. nd note were not executed by nice, but in his absence; and, Ige. But, upon the face of the rd by him personally and with ;ned by Levi ; but it does not •t^ in signing the name of Ben- td to act under the power 10 execi ' uhority given to lie signed by Ben j amir : .1 1)\ T vy' .-ire not sucli uthorized .. m:i . jr-H or ,M,i..ie by Ben- as his attorney. It should were executed by cd to him for this iact has authority, but vhich he executes that uistruments should be SEALED INSTRUMENTS. 135 made by the attorney expressly as such attorney ; and the exercise of his delegated authority should be distinctly avowed upon the instruments themselves. Whatever may be the secret intent and pur- pose of the attorney, or whatever may be his oral declaration or pro- fession at the time, he does not in fact execute the instruments as attorney, and in the exercise of his power as attorney, unless it is so expressed in the instruments. The instruments must speak for themselves. Though the attorney should intend a deed to be the deed of his principal, yet it will not be the deed of the principal, un- less the instrument purports on its face to be his deed. The author- ity given clearly is, that the attorney shall execute the deed as at- torney, but in the name of the principal. There is much learning and much discussion in the books of the law as to the proper mode of executing authority by agents. In what form the agent should execute his authority, so as to bind his principal, and not bind himself, has been a subject largely con- sidered in elementary works, and much discussed in numerous ad- judged cases. The rule commonly laid down by all the authorities is, that to bind the principal, the instrument must purport, on its face, to be the instrument of the principal, and executed in his name ; or, at least, that the tenor of the instrument should clearly show that the principal is intended to be bound thereby and that the agent acts merely as his agent in executing it. But it is contended that it is nowhere laid down in any work of authority, or established by any adjudged case, that the agent may put the name of the principal, as his own personal act and signature ; the execution of the agent, as agent, not being in any way disclosed. Such an execution does not appear to be warranted by the power delegated to execute the instrument as attorney, but in the name of the principal. If such a mode of execution is proper and legal it seems most remarkable that it is nowhere stated or suggested in any work of authority. The execution of instruments by agents in this way would certainly be attended with great difficulties and dangers. If the agent might execute instruments in this mode, the principal, if he found his name signed to an instrument, would have no means of know- ing by whom it had been signed or whether he was bound or not bound by such signature ; and other persons might be greatly de- ceived and defrauded by relying upon such signature as the personal act and signature of the principal, when the event might prove that it was put there by an agent who had mistaken his authority, and consequently that the principal was not bound. When it should be discovered that the name of the principal was not written by him, as it purports to be, it might be wholly impossible to prove the exe- cution by attorney, as there would be nothing on the note to indicate such an execution. For authorities as to the form of execution of the mortgage and note, see Story Ag., §§ 147, 148, 153, notes, and 136 EXECUTION OF AUTHORITY. cases cited ; Hoffman's opinion, in 3 Am. Jur. 71-85 ; Wilks v. Back, 2 East 142; Story, Notes, §§ 11, 66, 71. In the case of Stackpole v. Arnold, 11 Mass. 27, 29, Parker, C. J., said: "No person in making a contract is considered to be the agent of another unless he stipu- lates for his principal by name, stating his agency in the instrument which he signs. This principle has been long settled, and has been frequently recognized ; nor do I know an instance in the books of an attempt to charge a person as the maker of any written contract, ap- pearing to be signed by another, unless the signer professed to act by procuration or authority, and stated the name of the principal on whose behalf he gave his signature." There is a dictum of Lawrence, J., in the case of Wilks v. Back, 2 East 142-145, which would seem to import that an agent might put his principal's name without stating it to be by attorney. But it is but a dictum, the import of which is not entirely clear and certain. Though there is no direct authority to the point, the court are inclined to think, that the execution of the mortgage and note, in the present case, were not such as the attorney was authorized to make, and not such as to make them valid and bindins:.^ * * *2 (b) NEGOTIABLE INSTRUMENTS. ANDERTON et al. v. SHOUP, trustee. 1866. Supreme Court of Ohio. 17 Ohio St. 126. Error to the superior court of Montgomery county. Miriam H. Anderton and James Anderton, her husband, brought their action in the superior court of Montgomery county, against George W. Shoup, as trustee for Harriet Shoup, on the following instrument : "Dayton, August 11, 1861. "Dayton branch, State Bank of Ohio, pay to J. B., or bearer, two hundred thirty dollars. "$230. Samuel Shoup, Agent." The various questions that arose in the progress of the case, re- sulted, substantially, in one upon demurrer to the amended petition. It is averred in the petition that Samuel Shoup and Harriet, his ^ A portion of the opinion is omitted. ^ "When the deed on its face purports to be the indenture of the principal, made by his attorney in fact therein designated by name, it may be properly executed by such attorney by his subscribing and affixing thereto the name and seal of his principal alone." Cornell, J., in Berkey v. Judd, 22 Minn. 287, 302. ae said Harriet to the defendant in '^rty in carry;. such a the named m said :. :, and ,,^ ... .....Js on such a'^'^'-'- cd with his own name . of the defendant; that ov. ] "draft or check" and datec' ' . from whoi ''before it \: tundi> m sani bank when the dr. ;t> ^r.-ilnr'f ■," : nrnl l'h?.^1:la^•lllel^t mt; and this petition in error is ' ] averments in the petition will not warrr; ■ \:> iiat this is a case where a party i' .ses a na ^ own in the transaction of his ■ The Pi)' - aimed is, that the principal allowed the agent to : ,.<,me as agent '•'• ^'^'"^ fr-1n^-l.-^;, n .-f •--oi.i.--' ,-," tn;- I'U principal. 'ar from the paper w suir oemg execiKco 10- mv:. ■ • kino- oitt funds for the princinal, in the ordinary' ' by hin, July, bv ; here were no funds ot the p; .. .. •' Mi- 1 ■ V check to the h. )0wn, ii merely for the . ■■y, to be ncL • them f~- •;■•"■• ; can be clr, the die. the inst\ 1! i nt ^w.A upon is a check proper, or a bH' ,,^ ;i is unp the purposes of this case to ''^' ^^" i.asi. i > i.ie ingrafted on the comr- ■ orrison v. Bailev. ^ Ohio St. 13). ai ■ ^- wd." Edv Wend iy> III. JUX. V. Back, cl:pole V. * making pr. •cipal on lii. liVl^iit V. But it 1 certain. ourt are ■te, in the to make. iiic folio Vviug r, iS6i. case, re- ■ petition, irriet, his exf' 302. c principal, ' ' nroperly name IK. 287, NEGOTIABLE INSTRUMENTS. I37 wife, conveyed the property of the said Harriet to the defendant in trust, with authority to use the property in carrying on miUing and other business for her benefit, and to employ an agent to assist in such business ; that the defendant appointed Samuel Shoup such agent, who, in prosecuting the business, opened an account in the name of the defendant, with the bank named in said instrument, and was in the habit of checking out funds on such account, for the de- fendant, by checks signed with his own name as agent, with the knowledge and approval of the defendant ; that on the 29th day of July, 1861, he drew said "draft or check" and dated it August 11, 1 86 1, and delivered it to Davis & Cuppy, from whom the plaintiffs obtained it, for a valuable consideration, "before it was due ;" that the defendant had no funds in said bank when the draft was drawn, nor did he until after its maturity ; and that payment was refused by the bank. The demurrer to the petition was sustained, and judgment w^as rendered for the defendant ; and this petition in error is brought to reverse that judgment. Day, C. J. — The averments in the petition will not warrant the claim in argument, that this is a case w^here a party himself uses a name other than his own in the transaction of his business. The most that can be claimed is, that the principal allowed the agent to sign his ow^n name as agent in the transaction of some of the business of the principal. Indeed, so far from the paper in suit being executed for the purpose of checking out funds for the principal, in the ordinary course of business approved by him, it was, in effect, a time-draft or bill, drawn on the 29th of July, but dated, and therefore payable, on the nth of August. There were no funds of the principal in bank to draw against, or to set apart by check to the holder ; and, for aught that is shown, it was drawn merely for the accommodation of Davis & Cuppy, to be negotiated by them for their own benefit. The most that can be claimed for the check in the hands of the plaintiffs, as purchasers or holders thereof for a valuable considera- tion before due, is the application of the rules appertaining to ne- gotiable paper. Whether the instrument sued upon is a check proper, or a bill of exchange, it is unnecessary for the purposes of this case to deter- mine. Bank-checks "have become ingrafted on the commercial law of the country" (Morrison v. Bailey, 5 Ohio St. 13), and "are in substance bills of exchange, payable on demand." Edw. on Bills 57 ; Par. Mer. Law 91; Harker v. Anderson, 21 Wend. 373; Chapman v. White, 2 Seld. 412. The differences that distinguish these two classes of commercial paper, growing out of the uses to which they are ordinarily applied, do not affect the question involved. It is undoubtedly w-ell settled that where an ordinary simple con- tract is signed by an agent in his own name, w^ith the addition of 138 EXECUTION OF AUTHORITY. the word "agent" thereto, the principal may be made liable thereon, whether his name appears on the paper or not. Story on Agency, § 1 60a, and authorities there cited. But, for commercial reasons, a distinction is taken, in the authorities, between contracts of this class and negotiable paper. As to bills of exchange, it is said that the agent "must either sign the name of the principal to the bill, or it must ap- pear on the face of the bill itself, in some way, that it was drawn for him, or the principal will not be bound." Edw. on Bills 80 ; Chitty on Bills 27. The question as to the liability of the principal, on paper executed by an agent in his own name, was well considered by the supreme court of Massachusetts, in the cases of the Eastern Railroad Com- pany V. Benedict, 5 Gray 561, and the Bank of America v. Hooper, lb. 567. In the latter case it is said that "there will be found to be a leading distinction taken between cases of commercial paper in the form of bills of exchange, and negotiable promissory notes and other simple contracts, holding that no one but a party to such negotiable paper can be sued for the non-payment thereof." In support of this dis- tinction the following authorities are there cited : Byles on Bills (5th ed.) 26; Emly v. Lye, 15 East 7; Becham v. Drake, 9 M. & W. 92; Pentz V. Stanton, 10 Wend. 276; Stackpole v. Arnold, 11 Mass. 27 ; Bedford Com. Ins. Co. v. Covell, 8 Met. 442 ; Taber v. Cannon, Id. 456. The case of De Witt v. Walton, 5 Seld. 571, decided by the New York Court of Appeals, is a strong case to the same point. It was a suit brought on a negotiable promissory note, signed "David Hub- bell Hoyt, agent for the Churchman." Hoyt was an agent for a newspaper called "The Churchman," and was authorized to contract for the proprietor in that name, and the suit was against the pro- prietor, Hoyt's principal. It is said in the opinion that "the good sense of many authorities upon this subject would seem to be that, where a party is sought to be charged upon an express contract it must at least appear upon the face of the instrument that the agent undertook to bind him as principal. Here the promise is not by the defendant or 'The Churchman,' nor by Hoyt for them or either of them, or in their behalf, but for himself. The formula used by him in the signature to the note in controversy has been determined, in this and other states, to create an obligation on the part of the agent personally, and not in behalf of the principal. There is no great hardship in requiring that if a man undertake to oblige another, by note, bill of exchange, or other commercial instrument, he should manifest his purpose clearly and intelligibly, or that his principal will not be bound, whatever may be the result in reference to himself." It was further held in this case that the words added to the name of the person signing the paper were merely dcscriptio pcrsonae. NEGOTIABLE INSTRUMENTS. 1 39 maintained in these cases, it is said by the author -th's Leading Cases (vol. 2, p. 433), "would seem ,: both sides of the Atlantic." oles, applied to the case before us, are decisive of it. ■1 the defendant is in no way indif - " •mr.w the face cnt upon which alone the action is • herefore, that the ruling- of the c • vvus cor- ihe judgment rendered by it must :d.^ F APT V V U.'TT Tr-T\TCr.N & HUNT. . ivME Court of rippiLVLb of Virginia. 9 uratL. on of debt in the circuit court of Kanawha county, nson & Hunt against Robert H. Early. The (1 in the opinion of the court. There was a verdict for the plaintiffs; and Early appHe^^ ^'^ ^^^'-^ r-r..irt eas, which was awarded. Mc appellant. K, T.. delivered the opinion of the court. :: by Wilkinson & Hunt against in the following form : Kanawha County, October 3, 1850. lie I promise to pay to Wilkinson & Hunt, , negotiable and payable at the office of dis- sit of the Bank of Virginia, at Charleston, Kanawha, :,:,! :Mirt'v>n .ir.n.-'r-, ,u,] h rty cents, for valni^ «■..,-..;,■.-■ Robert H. ; (For Samuel H. r.j.uy.,' ■ndant demurrci .-r-n-r-.n,- f^ the declaration and also ■^f. The pla;i n the demurrer, and joined ' ' The der. ii^.i •, .•- overruled, and verdict and lered for the plaintiffs. On the trial of the issue ■■■'• ;n introduce the note as evidence, which. the le Instruments, § 305. 10 Ind. 44, it was held that a note signed ' c- principal at law, but that i . when the agent in signing s ,-y. r a person adds to hii •:ii 1 o r :i nrinrifi-,1 . i- ■ rd "agent" r his name L, and autho lor iiim, (' C"liittv rTi • Th" \UTHORITY. be made liable thereon. . not. Qf ' -m Agency, . for CO: reasons, a f this class ! the agent MSt ap- drawn •le bonn = Bills 80; Lhe prin •r executed well coii , iiie supreme - of the Ivailroad Com- lie Bank 1 ica V. Hooper, will not 1 himself." It was furth> of the person sigiiin to be a leading .: in the form of s and other simple h negotiable paper upport of this dis- (1: Byles on Bills Drake, 9 M. & W. i>,>ie V. Arnold, 11 Mass. 4 i2 ; Taber v. Cannon, . ,,, . iecided by the Ncv, CO the same point. It was a note, signed '*David Hub- Hoyt was an agent for a ' was authorized to contract V suit was against the pro- he opinion that "the good Tv t would seem to be that, .! an express contract it '■•• '"-^-1^ that the agent : is not by the r either of ^ cd by him :mined. •' ' the age > no gr( .., ^. another, 1 (rument. he shou ''nt his princii' 3 reference ' i , ied to the nan descripiio pcrsonac. NEGOTIABLE INSTRUMENTS. 1 39 The principle maintained in these cases, it is said by the author of the notes in Smith's Leading Cases (vol. 2, p. 433), "would seem to be well settled on both sides of the Atlantic." These principles, applied to the case before us, are decisive of it. The name of the defendant is in no way indicated upon the face of the instrument upon which alone the action is based. It follows, therefore, that the ruling of the court below was cor- rect, and that the judgment rendered by it must be affirmed.^ EARLY V. WILKINSON & HUNT. 1852, Supreme Court of Appeals of Virginia. 9 Gratt. 68. This was an action of debt in the circuit court of Kanawha county, brought by Wilkinson & Hunt against Robert H. Early. The facts are stated in the opinion of the court. There was a verdict and judgment for the plaintiffs ; and Early applied to this court for a supersedeas, which was awarded. Fry for the appellant. MoNcuRE, J., delivered the opinion of the court. This is an action of debt brought by Wilkinson & Hunt against Robert H. Early on a negotiable note in the following form : $913.50 Kanawha County, October 3, 1850. Four months after date I promise to pay to Wilkinson & Hunt, or order, without offset, negotiable and payable at the office of dis- count and deposit of the Bank of Virginia, at Charleston, Kanawha, nine hundred and thirteen dollars and fifty cents, for value received. Robert H. Early. (For Samuel H. Early.) The defendant demurred generally to the declaration and also pleaded nil debet. The plaintiff's joined in the demurrer, and joined issue on the plea. The demurrer was overruled, and verdict and judgment were rendered for the plaintiffs. On the trial of the issue the plaintiffs offered to introduce the note as evidence, which the ^ See Daniel on Negotiable Instruments, § 305. In Kenyon v. Williams, 19 Ind. 44, it was held that a note signed "A. B., Agt." would not be binding upon the principal at law, but that equity would enforce the note against the principal, when the agent in signing the note was acting within the sphere of his agency. "Where the instrument contains, or a person adds to his signature, words indicating that he signs for or on behalf of a principal, or in a representative capacity, he is not liable on the instrument if he was duly authorized ; but the rnere addition of words describing him as an agent or as filling a representa- tive capacity, without disclosing his principal, does not exempt him from per- sonal liability." Negotiable Instruments Law, § 20. 140 EXECUTION OF AUTHORITY. defendant admitted to be wholly in his handwriting; but he objected to its introduction, on the ground that on its face it purported to be the note of Samuel H. Early, and was variant from the note described in the declaration. The court overruled the objection and permitted the note to be given in evidence ; to v/hich the defendant excepted. The question which was first argued before us, and first presents it- self for our decision, arises upon the opinion of the court overruling the objection to the note as evidence; and perhaps also, upon the judgment of the court upon the demurrer. That question is, whether the note upon its face purports to be the proper note of Robert H. Early, who wrote and signed it, or of Samuel H. Early, for whom it appears, by the words in brackets at the foot of the signature, to have been given? An agent, in executing a note for his principal, supposing him to have authority to execute such note, may bind either himself or his principal. Whether the one or the other be bound depends upon the intention of the parties ; and that intention must appear from the note itself. If the name of the principal be not referred to in the note, the agent who signs it is alone bound. The difficulty arises only in those cases (which, however, are numerous) in which the name of the principal is referred to either in the body of the note or at the foot of it. "As the forms of words in which contracts may be made and executed," says Chief Justice Shaw, in Bradlee v. Bos- ton Glass Co., 16 Pick. R. 347, "are almost infinitely various, the test question is, whether the person signing professes and intends to bind himself, and adds the name of another to indicate the capacity or trust in which he acts, or the person for whose account his promise is made ; or whether the words referring to a principal are intended to indicate that he does a mere ministerial act, in giving effect and authenticity to the act, promise and contract of another. Does the person signing apply the executing hand as the instrument of an- other, or the promising and engaging mind of a contracting party ?" "The true and best mode of an agent's signing or endorsing a prom- issory note for his principal, where he means to make the latter and not himself personally responsible thereon," says Story in his work on Promissory Notes, § 68, "is to sign, or endorse, the same, 'A B, (the principal), by his attorney or agent, C D.' If the signature be 'C D, for A B' (the principal), it will be equally available, though not so formally correct. But in the practice of common life, there are many deviations from this course, and occasionally they give rise to great embarrassments, in endeavoring to ascertain whether, in the actual language used, the agent is personally bound, or the principal alone is bound, or both. Neither is it possible to extract from the authorities any consistent rules to guide us in this matter of interpretation." See Story on Agency, §§ 274-278 ; i American Leading Cases, 2d edition, pp. 625-634, notes. In the great number and variety of cases on this subject in the re- 1 NEGOTIABLE INS >->t one ,ii..L which ;e perfect for that V. ," in br idiu that p. ' even th<.)U!' ^^.rly. On been addei.; had autho- latter won' executiner i tention act. in but '"t- must i of tlie bracke lr^-; - has been found in which the note ■ ite of R' ill I ■■ •'■■; ;-:;.;iyU.li: f L*! - ;^ •■ :r-l.f-1>. Without the ;i- 'y wouU' c given - liand, it may be said that it ti^ being enclosed in liiM'-ker-^ :i'i:] T .:ti the note as .^ lave beer '---•• ' v procu; cii C'LiiiiSlciiii. c a'l ' ... in iarlv. ■a ■. of ■?'ve .-)f ifficient to turn v if Robert H. Early not to do ""a mere mir t and yr ^f Robert H. Early had in: w- ;. Early, as maker of tl^ . .e • nee to ;■ ' be latter, whicii then would rt-int n' ild not h^vf^ pnclosed it in ■bt be lakeu iruni the nc .t injuring .. He would rather hav.. d his own e name of the mere agent by whom it was ._...^e than useless on ''^^ -^"^osition th •' '^-•^ ^?! ed to be bound. The v canno^ b an intention. On lii-: oiher 1 itrarv intention an intention *• that thv oromiso! p' -ndwritii e objected ' 3 face it J to be the : from t! :<. scribed in ' " '' , permitted excepted. tits it- 1 1 uling 'nd per; upon the ■ ^^]r.:f . s, whether Robert H. y, for whom c signature, to imposing him to may bi. himself or his (*lll(-r )> depends upon ppear from the >„lutii ^,;v: i!"j|, I ciorred to in the in the g: alone bound. The difficulty arises »-, are numerous) in which the either in the body of the note Uis, of words in which contracts may 'icf Justice Shaw, in pjradlee v. Bos- are almost infinitely various, the test jgning professes and intends to bind another to indicate the capacity or crson for whose account his promise referring to a principal are intended ^t, in giving effect and of another. Does the i the instrument of an- ■;:,.:::;_ . 1 a contracting party?" .igent's signing or endorsing a prem- iere he means to make the latter and lie thereon," savs Storv in his work • > ' 'A B, ; are be , it will be t le, though the practtc life, there course, they give 1 endeav. . . ,, w.^aa whether, . agent is personally bound, or the "^ ■■'—-■- possible to e " ;; us in this ■ 4.-278; I Anient,;*!; i\ this subject in the re- NEGOTIABLE INSTRUMENTS. I4I ports not one has been found in which the note was similar in form to that which was executed in this case. The note in this case is in the perfect form of a negotiable promissory note of Robert H. Early, except that under his signature are the words "[for Samuel H. Early]," in brackets. Without the addition of these words it is cer- tain that Robert H. Early would alone have been bound on the note, even though he may have given it as the known agent of Samuel H. Early. On the other hand, it may be said that if these words had been added, without being enclosed in brackets, and Robert H. Early had authority to sign the note as agent for Samuel H. Early, the latter would alone have been bound on the note, though the mode of executing the note by procuration would not, in that case, have been strictly formal. The question then depends alone upon the import of the brackets ; and though it may seem strange that we should give so much import to a circumstance apparently so slight, yet we are of opinion that it is sufficient to turn the scale, and to indicate an in- tention on the part of Robert H. Early not to do "a mere ministerial act, in giving effect and authenticity to the promise of another," but "to indicate the capacity or trust in which he acted, or the person for whose account his promise was made." In the construction of the note, the whole of it should be taken together, and effect must, if possible, be given to every part of it. It is not presumable that any word or sign in the note was used without some meaning. We must presume, therefore, that something was intended by the use of the brackets. What was thereby intended? The ordinary use of brackets, in printing, is to enclose a parenthesis ; which is defined by lexicographers to be "a sentence so enclosed in another sentence as that it may be taken out without injuring the sense of that which encloses it." Applying that definition to this case, the parenthesis "for Samuel H. Early" may be taken from this note without injur- ing the sense of the balance, as understood and intended by the par- ties. The words, "I promise to pay," in the body of the note, will then plainly refer to Robert H. Early, whose name is thereto sub- scribed as maker. If Robert H. Early had intended to bind, not him- self, but Samuel H. Early, as maker of the note, he would have given more prominence to the name of the latter, which then would have been the important name. He would not have enclosed it in brackets, so that it might be taken from the note without injuring the sense of the balance. He would rather have enclosed his own name in brackets, as the name of the mere agent by whom it was signed. They were worse than useless on the supposition that Samuel H. Early was intended to be bound. They certainly cannot contribute in any way to show such an intention. On the other hand, we think they serve to show a contrary intention, an intention to take from the words enclosed the efifect they might otherwise have ; to give greater prominence to the name of Robert H. over that of Samuel H. Early, and to indicate that the former was the promisor, and the latter the 142 EXECUTION OF AUTHORITY. person for whose account the promise was made, and to whom, as between themselves, the amount of the note was to be charged. This we beheve is the only meaning of which the brackets are susceptible. It is a rational meaning, and is consistent with every other part of the note. We therefore believe it was the meaning in which they were used by the author of the note, in whose handwriting it was wholly written, and who would seem to have been familiar with the proper manner of drawing such instruments. After the court had permitted the note to be given in evidence to the jury, the plaintiffs introduced a witness for the purpose of prov- ing that about a month before the note to the plaintiffs was given a similar note was given to him, except that the words "for Samuel H. Early" were not enclosed in brackets, which note was exhibited on the trial ; that credit was given by the witness in that transaction to Robert H., and not to Samuel H. Early ; and that when the note was written and handed to him, signed "Robert H. Early, for Sam- uel H. Early," witness asked Robert H. why he had made and signed the note in that form, to which he replied, that in the case of the death of either his brother or himself, the note would show on which account or for whose benefit it was given, etc. To the introduction of which parol testimony, and the note offered in connection there- with, the defendant objected, on the ground that it was irrelevant and inadmissible. But the court overruled the objection and per- mitted the evidence to go to the jury ; to which the defendant also excepted. The questions arising on this opinion of the court, and argued b}^ the counsel, were: ist, whether parol evidence was at all admissible in the case ; and, if so, 2nd. whether the evidence offered was not irrelevant, and on that ground inadmissible. First, as to the admissibility of parol evidence in such a case. There is certainly no better settled general rule of law than that parol evidence is inadmissible to contradict or vary the terms of a written contract. There is another general rule, which has been es- tablished and recognized by a long series of decisions (but which has been said to be not perfectly accurate as a definition), that parol evidence is admissible to explain a latent but not a patent ambiguity. There are cases which would seem rather to fall vmder the head of patent than of latent ambiguity, in which parol evidence has been held to be admissible. Judge Story, in the case of Peisch v. Dickson, I Mason's R. 9, after referring to the rule in regard to patent and latent ambiguity, says : "The difficulty lies not in the rule itself, but in applying it to particular cases, where the shades of distinction are very nice. There seems, indeed, to be an intermediate class of cases, partaking of the nature both of patent and latent ambiguities ; and that is, where the words are all sensible, and have a settled meaning, but at the same time consistently admit of two interpretations, ac- cording to the subject-matter in the contemplation of the parties. In such a case I should think that parol evidence might be admitted, to II .1 on the the intermediati' by the same pr m who sigfued •i, by IK ;.ri .- whi\- hat did the f ■■.V ,!_.-, employef^ '^ ■ which Lord Bacc be that which r. ■/ v vo \iu: :o ^ a;: / )f purroiindinor ^ and collateral fnr.'>, ircaciy stated, is ex: • to pronounce an in 'le nas ; aid, in its interpretanon, aii by pare": iiici(_>. urate," sa}^ •.» igrdui, in u's ;,n: _ij- -retation of wills, pp. 175-6, "but if the court of language in gxinerai, its meaning dep' i:.;i. rn-rrr cannot be ambiguous. The jparent on the face of the in ase." It has been decided i. arises on the face of an in case on the subject, and ex- -..:-... ...J.y. So d' -^^ ''^- <\ise of Laza- Ala. 1' a the case ce v. Boston ^' ". : cited, j ■ri-ion. ;■ :'ie. ihe cas l.Ml 111', •le that 1- ;tt on ■: iilainly tht o:n, as u This isceptible. cr part of liich they ing it was r with the n tri< t^xcept : bracke'L n bv th I n' r:.. -cri tl. be rer in evide, rpose of prov- i's was g^ven a ■ "for Samuel ;vas exhibited hat transaction when the note .irly, for Sam- : iiiade and signed in the case of the uld show on which ;"o the introduction ;i.e note offered in connection there- . fiir. .-r, rnM,' t'.ir \t was irrclcvant tion and per- . ; ■(' w defendant also this op' 'he court, and /whether parol was at all , r'nd, whether t ice offered id inadmissible. parol evidence in such a case. ' general rule of law than that '•"-lict or vary the terms of a al rule, which has been es- i)Ut which hat parol . where lo be an ml. •^^ten'' and tnce has been h V, Dickson, 'latent and itself, but 'nction are of the part! I )p :4(in"'ii NEGOTIABLE INSTRUMENTS. I43 show the circumstances under which the contract was made, and the subject-matter to which the parties referred." The case of a note signed by one person for another (at least where it is doubtful on the face of the note which of the two is intended to be bound), would seem to be one of the intermediate class referred to by Judge Story, or to be governed by the same principle. The doubt in that case is whether the person who signed the note intended to bind himself or another ; and that doubt may be perfectly removed by proof of the surrounding circumstances, in regard to which a court of construc- tion may be placed, by parol evidence, as nearly as possible in the situation of the party whose written language is to be interpreted ; the question being, what did the person thus circumstanced mean by the language he has employed? i Greenl. Ev., § 295. "The patent ambiguity of which Lord Bacon speaks," says the same author, "must be understood to be that which remains uncertain to the court after all the evidence of surrounding circumstances and collateral facts, which is admissible under the rules already stated, is exhausted." Id., § 300. And "no judge is at liberty to pronounce an instrument ambiguous until he has brought to his aid, in its interpretation, all the lights afforded by the collateral facts and circumstances which, as we have shown, may be proved by parol." "The language may be inaccurate," says Wigram, in his admi- rable treatise on the interpretation of wills, pp. 175-6, "but if the court can determine the meaning of this inaccurate language, without any other guide than a knowledge of the simple facts upon which, from the very nature of language in general, its meaning depends, the language, though inaccurate, cannot be ambiguous. The circum- stance that the inaccuracy is apparent on the face of the instrument cannot in principle alter the case." It has been decided in several cases that where an ambiguity arises on the face of an instrument, whether the person signing it, or the person for whom it is given, was intended to be bound, parol evidence is admissible to remove the ambiguity. Mechanics' Bank of Alexandria v. The Bank of Columbia, 5 Wheat. R. 326, unanimously decided by the supreme court in 1820, is a leading American case on the subject, and ex- pressly decides the question affirmatively. So does the case of Laza- rus V. Shearer, 2 Ala. R. 718. In the case of Bradlee v. Boston Glass Co., 16 Pick. R. 347, before cited, parol evidence was intro- duced by the plaintiff without objection, and commented on by the learned chief justice, in delivering the opinion of the court. Indeed, we have seen no case in which parol evidence for such a purpose has been held to be inadmissible. The case of Stackpole v. Arnold, 1 1 Mass. R. 27, was much relied on by the counsel of the appellant in this case, to show that such evidence is inadmissible. In that case the name of the principal did not appear on the face of the note ; and it is a familiar and well-settled principle that he cannot be bound in such case. The note on its face was plainly the note of the person 144 EXECUTION OF AUTHORITY. whose name was thereto signed, and of no other person ; and to have admitted parol evidence to show that it was intended to be the note of another would have been directly contrary to the rule which declares such evidence inadmissible to contradict or vary a written contract. The great object of the judge, in his learned opinion in that case, was to show that this rule is not confined to specialties, or even contracts under the statute of frauds, but extends to all writ- ten contracts. Not one word is said in the whole opinion which indicates that parol evidence would be inadmissible where it is doubt- ful on the face of the instrument which of several persons was in- tended to be bound ; but the contrary is indicated throughout the whole opinion. After laying down the general rule of exclusion of such evidence, on page 31, he adds: "Provided the contract is per- fect in itself, and is capable of a clear and intelligible exposition from the terms of which it is composed." Again, on page 32, he says, that a "contract in writing, perfect in itself, and containing no am- biguity on the face of it incapable of explanation, cannot be enlarged or diminished by oral testimony." And on page 33, in speaking of the notes on which the suit was brought, he says, "they have no ambiguity upon the face of them," etc. Secondly, as to the irrelevancy of the evidence in this case. There is perhaps no question of greater difficulty in the administration of justice than that which often arises in regard to the relevancy of evi- dence to the issue. "It is the duty of the court," says Philips, "to con- fine the evidence to the points in issue, that the attention of juries may not be distracted, nor the public time needlessly consumed ; but in deciding that the evidence of any particular circumstance is not receivable upon this ground, the court must impliedly determine that no presumption to be drawn from that circumstance ought properly to have an efifect upon the minds of the jury." It is obvious, there- fore, that a great deal must necessarily be left to the discretion of the court of trial, in determining whether evidence is relevant to the issue or not. The question involved in the issue in this case was, why were the words "for Samuel H. Early" written at the foot of the note? Was it for the purpose of binding him as maker of the note, or merely for the purpose of indicating, as between him and Robert H. Early, that the note was given by the latter on the account and for the benefit of the former? As tending to throw light on this question, the plaintiffs proved that less than a month before the note was executed another note was given by the defendant, similar in all respects to that, except as to amount and payee, and in the omission of the brackets ; and that the reason given by the defendant for add- ing the words "for Samuel H. Early," at the foot of the note, was "that in the case of the death of either his brother or himself, the note would show on what account or for whose benefit it was given." We are not prepared to say that this evidence did not tend to throw light on the question, and was irrelevant, supposing that there was N 1 '. . • ' '. I'.LE INSTRUMENTS. ■ '^ amhisni'ty on the face of the nc/ render • •iciples before statcvi. VV' ..ioan to ■ cases cited from East a: bv the c r sel ot the appeiianc (7 East 108; 5 Day's Esp. -,), nor to rrmtend that proof of one contract may be i- - rence, of ;j7:nrt." says Philips, "to con- that the attention of juries " needlessly consumed ; but licular circumstance is not "tipliedly determine that 'yistance ought properly " It is obvious, thcre- ft to the discretion of ience is relevant to the • 'n this case was, why at the foot of the ' er of the note, ixn and Robert '?. account and !i'zht on this \; the note ..nilar in all n the omission ,ic (i^jcndant for add- ' foot of. the note, was her or himself, tl nefit it was givei: ' not tend to thr" KT that there w NEGOTIABLE INSTRUMENTS. I45 such ambiguity on the face of the note as to render parol evidence admissible on the principles before stated. We do not mean to deny the correctness of the cases cited from East and Peake by the coun- sel of the appellant (7 East 108; 5 Day's Esp. Peake Ca. 95), nor to contend that proof of one contract may be proof, by inference, of another. We mean only to say, in the language of Philips (edition of 1849, vol. I, p. 461), that "it may frequently be very proper, and in some cases absolutely necessary, to look beyond the transaction which is the immediate subject of inquiry, into previous transactions, for the purpose of making a just inference as to the knowledge of the parties, their motives or intention" ; and to say, that this case, on the supposition above made, may come within that principle. The object of the evidence in such a case is not to set up a contract, but to remove an ambiguity apparent on the face of the contract. In the case before cited from 5 Wheat. 326, other transactions were proved ; and a check executed about the same time, and in the same form (though upon a different bank) with that on which the suit was brought, was offered in evidence and held to be admissible. But we have gone into the consideration of these two questions, in regard to the admissibility of parol evidence and the relevancy of the evidence in this case, not because it was necessary to decide them, but because they were discussed by the counsel, and are inter- esting questions, and we thought it might not be improper to ex- press our views upon them. In this case we have already decided that the note upon its face was the note of Robert H. Early ; and the plaintiffs, after introducing it, ought to have rested their case. The parol evidence offered by them to prove that the note was what it purported to be was unnecessary, and therefore improper. Without it the jury would have been compelled, under the instruction of the court, to have found a verdict for the plaintiffs. But should the judgment, on that ground, be reversed? For what purpose? To be remanded to the court below that the same verdict and judg- ment may be rendered on the note without the evidence ? The public time may have been needlessly consumed by the introduction of the evidence in the court below, but can that time be regained by the consumption of more time in another trial? We therefore think, that even if parol evidence be inadmissible in such a case, and the evidence in this case was irrelevant, the judgment should not be reversed. For these reasons we are affirming the judgment. Daniel, J. — ^This is quite a novel case, and I have experienced much difficulty in bringing my mind to a satisfactory judgment on the questions which it presents. My first impressions were, I must confess, strongly in favor of the views urged by the counsel of the plaintiff in error ; but on more mature reflection I have felt con- strained to concur in a judgment affirming that of the circuit court. 10 — Reinhard Cases. 146 EXECUTION OF AUTHORITY. He who is sought to be charged with the performance of a written promise or engagement, made by himself in person, and endeavors to discharge himself of liability on the ground that his relation to the instrument is that of a mere agent for another, cannot complain of being subjected to a harsh requirement when held bound to main- tain that the instrument does unequivocally disclose such relation. It is true that in the case of Key v. Parnham, 6 Harr. & John. 418, it is stated as a rule (and I have no doubt correctly), that ''wherever, upon the face of an agreement a party contracting plainly appears to be acting as the agent of another, the stipulations of the contract are to be considered as operating solely to bind the principal, unless it manifestly appears by the terms of the instrument that the agent intended to superadd or substitute his own responsibility for that of his principal." Still the further rule asserted in the notes to the American leading cases, vol. I, p. 626, as fairly to be deduced from the decisions, is, I think, equally true, viz., that "in determining whether a party contracts personally or as agent, the presumption is in favor of the former ; that is, a party will be bound personally, unless his character of agent be clearly disclosed." Does the note on which this suit was brought show, by plain and unambiguous words or signs, that the plaintiff in error was acting as the mere agent of another in its execution ? I think not. The fact that the note was a negotiable one, and the consideration that any recital about the relation of the parties in the body of the instru- ment might therefore be regarded as informal, made it the more incumbent on the plaintiff in error, if indeed he was acting as the agent of another, to manifest his character, plainly, in the signature. I do not think that he has done so. It is conceded by the counsel for the plaintiff in error that, in the signature and affix thereto, the form most generally used to designate the execution of a note by an agent has been departed from ; yet he has referred to several cases decided by the supreme court of Massa- chusetts, in which, where the form of disclosing the name of the agents and principals in the signature was (with the exception here- inafter to be noticed) like that employed here, the principals were held bound. When the usual mode of signing a note by attorney is adopted, A B by C D, no room is left for doubt or construction. The infer- ence is plain that the person who makes the note is performing a mere ministerial act in its execution. But where the note is signed, as it is in the case before us, "Robert H. Early, for Samuel H. Early," or, as in Long v. Colburn, 11 Mass. R. 96, "Pro. William Gill — J. S. Colburn," the intention of the parties is by no means so manifest. A doubt arises whether the person executing the note is acting as a mere agent, or is in fact giving his own note for and on account of the debt of another. In the case just above mentioned, and in other cases of a like character cited at the bar, counsel contended for ■ on; and though overruled, a Iiink prop- ic court, still it must be cone ■''■ --^ —r not, in such cases, wholly fi '■■ :o the note here, however i-Lobcr: aniuel H. Early." The only '. of the juld denote an agency, or d (1. nywise connected with the tr ;.il e included in marks or sign rh .,.,; h, in(jicate that the claus '■ !)tial in the construct i '••L MIC note thus : '■ ' < the pa; )v the defendant » to rea i H. Early" were ;iOt on it at ail m in favor of a mere agency by I\ '1 of the note was not so clear as to justify th' ihe note from the jury. offered by the defendant in error, after the introduc- ■ as, I think, improperly received. The declaration intention in respect to another isolated note, and . ction with the one in suit, made by Robert H. Early s execution, could not be properly resorted to as fur- ■lence of what he intended by the language and course ■-) in the execution of t!-!e note in contr-iversv. ?::oh .vholly irrelevant. :eive, however, L^.^ ...i.. plaintiff xn . i, - . vmi. . ..a%... 1 by its introduction. Having rested his defense on '1 to bo given to the paper, and tlie court having per- to the jury, their verdict against him. in the ?>b<:^-'nce y, must have followed as a r e- ii of further testimony bv t' '•'■ the construction given by the cou- of no benefit to himself rn • r. ';,-•. oduction of such testimc: merely idle, and, though nnpr!)}. > i •:h to found error, ming the judgment, with costs to "' '' ■ "" ' ■''., agent for B," ha? li-tp w :u .o i.rm r,, the note. Roney's Adm'r v. Winter, 37 )ind him nets ma}' be 1; is, whether : ' , Ids the name . ed, are .■J oro- ■1 ^vhTCh " the por-^-^n : ment of another, or thi . "' i: ;i v.riiten ■ endeavors to the ^ iain of 1 to main- h relation. John. 418, ,~ uii-i. wherever, 'I'on the 1 ily appears to be ' -i the contract are tf'< 'incipal, unless i; '\ the agent uy for that • tn the notes to the .) be deduced from ti it "in determining ' najiy u: it, the presumption is. a pa I bound personally, show, by plain and \n error was acting ; ... think not. The fact one, and the consideration that any e parties in the ?- '^ -^'" the instru- ■ded as informal '■■ the more 1-ror, if indeed he ^. i: aciing as the 's character, pkiinly, in the signature. 'nin^'iff in error that, in the Iv used to designate ' '^^1 Trotn; yet he - of Massa- •i-jr, .J name of the lature \v exception here- employed i. ;.rincipals were a of th ;ning a . 'Oy is adopted, •'; The infer- Robert H. ' ■ « R. 90, 'iTL rforming a is signed, H. Early," Gill— J.' S. ■cs is by nr ) manifest. . acting as on account c just above mentioned, and : h t hf- ^ ,nr ,-1 i-ixr> 1 rr,nt-^r,.ie,1 , NEGOTIABLE INSTRUMENTS. I47 the latter construction ; and though overruled, and as I think prop- erly overruled by the court, still it must be conceded that the mean- ing of the parties is not, in such cases, wholly free from doubt. The signature to the note here, however, is not simply "Robert H. Early, for Samuel H. Early." The only words on the face of the paper which could denote an agency, or disclose that Samuel H. Early was in anywise connected with the transaction ("for Samuel H. Early,") are included in marks or signs of parenthesis, which are generally used to indicate that the clause or words thus marked or included are not essential in the construction of the sentence. Has not the maker of the note thus given to the payee the privilege (as contended for by the defendant in error) to read the note as if the words "for Samuel H. Early" were not on it at all? Be this as it may, the construction in favor of a mere agency by Robert H. Early in the execution of the note was not so clear as to justify the court in withholding the note from the jury. The evidence offered by the defendant in error, after the introduc- tion of the note, was, I think, improperly received. The declaration of his purpose and intention in respect to another isolated note, and having no connection with the one in suit, made by Robert H. Early at the time of its execution, could not be properly resorted to as fur- nishing any evidence of what he intended by the language and course adopted by him in the execution of the note in controversy. Such testimony was wholly irrelevant. I do not perceive, however, how the plaintiff in error could have been prejudiced by its introduction. Having rested his defense on the construction to be given to the paper, and the court having per- mitted it to go to the jury, their verdict against him, in the absence of any further testimony, must have followed as a necessary conse- quence. The production of further testimony by the defendant in error in aid of the construction given by the court could, in the state of the case, be of no benefit to himself or injury to his adversary. I regard the introduction of such testimony, therefore, under the cir- cumstances, as merely idle, and, though improper, as furnishing no ground on which to found error. I am for affirming the judgment, with costs to the appellee.^ ^ A note signed "A for B" or "A, agent for B," has been held to bind B, where A was authorized to execute the note. Roney's Adm'r v. Winter, 37 Ala. 2Tj; Tiller v. Spradley, 39 Ga. 35. "As the forms of words, in which contracts may be made and executed, are almost infinitely various, the test question is, whether the person signing pro- fesses and intends to bind himself, and adds the name of another, to indicate the capacity or trust in which he acts, or the person for whose account his promise is made ; or whether the words referring to a principal are intended to indicate that he does a mere ministerial act, in giving effect and authenticity to the act, promise and contract of another. Does the person signing apply the executing hand as the instrument of another, or the promising and engag- ing mind of a contracting party?" Shaw, C. J., in Bradlee v. Boston Glass Manf., 16 Pick. (Mass.) 347, 350. 148 EXECUTION OF AUTHORITY. HITCHCOCK V. BUCHANAN. 1881. Supreme Court of the United States. 105 U. S. 416. Submitted March 27, 1882, Decided April 10, 1882. In error to the circuit court of the United States for the Southern District of IlHnois. Statement of the case by Mr. Justice Gray : This was an action of assumpsit by the plaintiff as indorsee against William C. Buchanan and James C. Waugh as drawers of the fol- lowing bill of exchange : "Office of Belleville Nail Mill Co. : $5,477.13 Belleville, III., December 15, 1875. Four months after date, pay to the order of John Stevens, Jr., cashier, fifty-four hundred and seventy-seven 13-100 dollars, value received, and charge same to account of Belleville Nail Mill Co. William C. Buchanan, President, James C. Waugh, Secretary. To J. H. Peiper, Treasurer, Belleville, Illinois." The declaration alleged that the defendants, on the 15th of De- cember, 1875, "at the office of Belleville Nail Mill Co., Belleville, 111., made their certain bill of exchange" (describing it), and, after it had been accepted by the drawee, delivered it to the payee therein named, and he indorsed it to the plaintiff, and the bill at maturity was presented for payment, and payment refused, and the bill pro- tested for non-payment, and the defendants, knowing that it would not be paid by the acceptor, had omitted to provide funds for its payment. A copy of the instrument above set forth, and of the ac- ceptance and indorsement thereon, was filed with the declaration. The defendants, after oyer craved and had, severally filed gen- eral demurrers to the declaration, which were sustained by the cir- cuit court, and judgment given for the defendants, on the ground that the instrument declared on was the bill of exchange of the Belle- ville Nail Mill Company and not the bill of the defendants. Mr. Justice Gray delivered the opinion of the court : The bill of exchange declared on is manifestly the draft of the Belleville Nail Mill Company, and not of the individuals by whose hands it is subscribed. It purports to be made at the office of the company, and directs the drawee to charge the amount thereof to the account of the company, of which the signers describe themselves as president and secretary. An instrument bearing on its face all the signs of being the contract of the principal cannot be held to bind the agents personally. Sayre v. Nichols, 7 Cal. 535 ; Carpenter v. Farnsworth, 106 Mass. 561, and cases there cited. The allegation in the declaration that the defendants made "their" NEGOTIABLE INSTRUMENTS, 149 bill of exchange, is inconsistent with the terms of the writing sutxl on and made part of the record, and is not admitted by the demurrer. Dillon V. Barnard, 21 Wall. 430 [88 U. S., XXIT 673] ; Binz v. Tyler, 79 III. 248. The provision of the statute of Illinois, ed. 1877 t^t-^'^ Practice, ■;6, prohibiting defendants sued on wr: from ^ their signatures, except under plea vv :, has no application where the fact of signature is adraittea :rrer, 1)1.1 ill.-- f,n1\ '"s.-^iir" i- nnr- nf l.ivv '^ SECOND NATIONAL BANK C' 3N, OHIO, v MID- LAND STEEL ; ^'Y. , C. J. — This case was transferred to this court by the orLv • appellate court. Ihe a)>pellant, an indorsee, sued the appellee upon a promissory n/-... ..r , ; -.-i. <',.-. ff^llowing is a copy: "MuNCi.., ....... April 13, 1896. > r 1 ik1 Steel Compan; lire months after dait: we pioutise £0 pay to the order of the ^i - Land Company $2,000, value received, negotiable and pay- ^.t defalcation or discount, at Union National. Bank, ';i., with interest at six per cent, per annum. R. J. Beatty, President." l.aint was in seven paragraphs. The first s.V. \- hat the appellee executed the note sued o ./ the appellee executed the said note through one R. J. was at the time the president, general agent, and gen- r of the appellee, and who, in executing the note, acted ■> authority, and on its behalf, as such president, etc., sonally ; that the sole consideration of said note was a ben due from and owing by the appellee, alone, to 1 1 Company, which indorsed said note to the appel- ■ird paragraph charged that the appellee executed said Foster, 119 Mass. 189. his name as cashier or agent for a banking, railmad or awing drafts and bills, or in accepting dra^' -s. in its ordinary buisiness, if it appears, 01 '''i\ of the corporation, and the cas! ' J bind the corporation, he is not r . .- iu,.> . ,^ t hy extrinsic evidence," ■-- ^' :? 111. 634, 642. 148 EXECUTl' HITCIT . riTOKITY tSR^ irPRF.MF. C ■■:$ U. S. 416. 10 A ;r;rr blU ..... ..., 1882. '.d States for the Southern ..laiutiil as indorsee against ugh as drawers of the fol- I'oir, cAsliicr, receive su, .- the a I Farns -ember 15, 1875. iie order of John Stevens, Jr., , (^.--c^ven 13-100 dollars, value rviUe Nail Mill Co. ■ \NAN, President, secretary. ', .ile, iil;uo:i. ' lefendants, on the 15th of De- •oville Nail Mill Co., Belleville, lange" (describing it), and, after it • 'lelivered it to the payee therein 'aintiff, and the bill at maturity i>ayment refused, and the bill pro- defendants, knowing that it would fnitted to provide funds for its above set forth, and of the ac- n, was filed with the declaration, 'aved and had, severally filed gen- ,!, which were sustained by the cir- for the defendants, on the ground , as the bill of exchange of the Belle- ^ the bill of t1- '"-' Innts. 1 opinion of '' 1 on is .. ihe draft of tne :.nd not lividuals by whose jrts to be made ar the office of the ce to charge the amount thereof to ' hich the signers describe themselves iistrument bearing on its face all the file principal cannot be held to bind " ' '..7 Cal. 535; Carpenter v re cited. he defendants made "ther NEGOTIABLE INSTRUMENTS. 149 bill of exchange, is inconsistent with the terms of the writing sued on and made part of the record, and is not admitted by the demurrer. Dillon V. Barnard, 21 Wall. 430 [88 U. S., XXII 673] ; Binz v. Tyler, 79 111. 248. The provision of the statute of Illinois, ed. 1877, title Practice, §§ 34, 36, prohibiting defendants sued on written instruments from denying their signatures, except under plea verified by affidavit, has no application where the fact of signature is admitted by demurrer, and the only issue is one of law.^ SECOND NATIONAL BANK OF AKRON, OHIO, v. MID- LAND STEEL COMPANY. 1900. Supreme Court of Indiana. 155 Ind. 581. DowLiNG, C. J. — This case was transferred to this court by the order of the appellate court. The appellant, an indorsee, sued the appellee upon a promissory note of which the following is a copy : "MuNciE, Ind., April 13, 1896. "Midland Steel Company : Three months after date we promise to pay to the order of the Muncie Land Company $2,000, value received, negotiable and pay- able, without defalcation or discount, at Union National Bank, Pittsburg, Pa., with interest at six per cent, per annum. R. J, Beatty, President." The complaint was in seven paragraphs. The first alleged, in gen- eral terms, that the appellee executed the note sued on. The second averred that the appellee executed the said note through one R. J. Beatty, who was at the time the president, general agent, and gen- eral manager of the appellee, and who, in executing the note, acted by appellee's authority, and on its behalf, as such president, etc., and not personally ; that the sole consideration of said note was a debt of $2,000 then due from and owing by the appellee, alone, to the Muncie Land Company, which indorsed said note to the appel- lant. The third paragraph charged that the appellee executed said * Compare Chipman v. Foster, 119 Mass. 189. "Where a party signs his name as cashier or agent for a banking, railroad or other corporation, in drawing drafts and bills, or in accepting drafts or other evidences of indebtedness, in its ordinary business, if it appears, or is made to appear, that it is the obligation of the corporation, and the cashier or agent or other officer had authority to bind the corporation, he is not personally liable, and the facts may be shown by extrinsic evidence." Scott, J., in Scanlan v. Keith, 102 111. 634, 642. 150 EXECUTION OF AUTHORITY. note by the name of R. J. Beatty, president. The fourth paragraph stated that the appellee had adopted and used as its name in the exe- cution of negotiable promissory notes, etc., the name of R. J. Beatty, president, and by that name executed the note mentioned in the complaint. The allegation of the Hfth paragraph was that the appellee executed the note under the name of R. J. Beatty, president, and that the note so executed was received, and accepted by the appellant as the note of the appellee. The sixtJi paragraph is the same as the ■fifth with the additional averments, however, that the note was exe- cuted for a debt due and owing from the appellee to the Muncie Land Company, and for no other consideration ; that said note was executed by the appellee through one R. J. Beatty, who was at the time the president, general agent and general manager of the ap- pellee, who acted by authority of the appellee, on its behalf, as its president, etc., and not personally ; and that when the Muncie Land Company indorsed and delivered said note to appellant it notified appellant that said note was the note of the appellee executed under the name of R. J. Beatty, president, and that appellant received it as such note of the appellee, and not otherwise. The seventh para- graph avers that, on the day of the execution of the note sued on, and long prior thereto, the appellee had adopted and used in the execution of its notes, drafts, etc., the name of R. J. Beatty ; that, on said day the appellee, by the description of "R. J. Beatty, presi- dent," executed to the Muncie Land Company the said note, whereby it, the said appellee, promised to pay said land company, three months thereafter, $2,000, with interest, etc., and that the Muncie Land Company received and accepted the same as the note of the appellee, and of no other person ; that said note was given and exe- cuted for a debt of $2,000, owing from the appellee to the Muncie Land Company, and for no other consideration : that the said note was executed by the appellee, through one R. J. Beatty, who was the president, general agent, and general manager of the appellee, and who acted by the authority of the appellee and on its behalf in exe- cuting said note as such president, agent, etc., and not personally, or in any other capacity ; that said Beatty intended to execute said note in such manner that it would be the note and obligation of the Midland Steel Company, and of no other person ; that said Muncie Land Company accepted said note in the belief that it was the note and obligation of the appellee, and not the note of any other person, and that if said note is not the note of the said corporation such fact is due to the mutual mistake of the said R. J. Beatty and said Muncie Land Company ; that the appellant accepted said note at the time it was indorsed to said appellant as the note and obligation of the appellee, and not otherwise, and that said note should, if found defective, be reformed so as to express the true intent of the parties. Each paragraph avers the indorsement of the note by the Muncie Land Company to the appellant. It is also alleged that by the law of BLE INSTRUMENTS. 'ania, where the said note is payable, it is ne- .vrT'in/e are negotiable, aiK'.'' '3 properly made an : J I, u!.' reformation of the ii^ ' • 'io grace is i: sued on, r relief. Demurrers to the .'iragraphs " led, and, the appellai) plead lered for nppellee. ^\ a the icd for error nt set out ill uplainl •. obligation of R. J. Beati er proper averments, m?. contract of the appell ■1 orm, at! .>-, neiliii : . the con. We promise to pay,'"' etc., but the i rst person, cannot properly be used bj. .i f the company appears on the instrument : written the place and date of ihe instrument is "R. J. Beati ■ration Mr. Beatty is presiueiiL, or on who.:'.: it he signs the paper. The words "we prom grammatically correct, if it js understood thar omisor. !ly describe themselves as president, secretary, agent, when signing their personal c o bind themselves as individunls. Tf is manner may be shown by the contract of a corporati n it may be suggested that ^ left in doubt as to the i'i- • it may be said that if the - 1 be disregarded, ;.;; 1 the contract of the i ■s, the p' i !ebt of a/: r r in an action upon it that mstea-' . -, jligation of a solvent r<)r",H-:<; ,r, personal note of an irrespon ^ - - person. In the usual coxi of a title, or description ch addir name? > ui their o ' ■ iptions -. EXECUTION OF AUTHORITY noi It The ;. 'ie ot ti !■; the aH iijip'^iiant r!.. appel]e= cuted t Land ( ill.: Land L name of R. The fourth paragraph '■■ n-.i.rlli , ' '-; its nroTie in the exe- . R. J. Beatty, • It. iiieiiiioned in the 'i was that the appellee ' *^'}'» president, and ..d by the appellant paraijraph is the same as the •vevcr. that the note was exe- 'pellee to the Muncie a; that said note was eatty, who was at the t^r of the ap- behalf, as its Muncie Land ■nt it notified ote oi 1 cecuted under ■ ni . -1" ...^nt received it The seventh para- ii.- i.-.\L' the note sued on, ilee ha'.i and used in the ., the n; ' J. Beatty; that, 'esoript: '. ]. Beatty, presi- auy the said note, whereby viiil land company, three , and that the Mimcie ine as the note of the ;e was given and exe- 'lee to the Muncie Lhat the said note , ouc R. j. ikatty, who was the - 'i tnanager of the appellee, and V appellee and on its behalf in exe- ,^.,i, agent, f '> -lul not personally, or said Beatt\ i to execute said -.ould be th«' ''igation of the ; of no other t said Muncie note in the beiKi ti-at it was the note ■, and not the note of any other person, ;e note of the said corporation such fact ke of the said R. J. Beatty and said the appellant accepted said note at the 1 -,..11 ,tv, oc flw> riote and obligation of ' note should, if found I rue intent of the parties. ■ A tlie note by the Aluncie alleged that by the law of NEGOTIABLE INSTRUMENTS. I5I the state of Pennsylvania, where the said note is payable, it is ne- gotiable as bills of exchange are negotiable, and that no grace is allowed. A copy of the note is properly made an exhibit. Prayer for judgment, the reformation of the instrument sued on, and all other proper relief. Demurrers to the several paragraphs of the complaint were sustained, and, the appellant refusing to plead further, judgment was rendered for appellee. The rulings on the demurrers are assigned for error. Must the instrument set out in the complaint be conclusively pre- sumed the personal obligation of R. J. Beatty, whose name is sub- scribed to it, or, under proper averments, may it be shown by parol evidence to be the contract of the appellee, the Midland Steel Company ? It is irregular in form, and ambiguous in its terms. The name of the Midland Steel Company is not subscribed to it, neither does the name of that corporation appear in the body of the contract. The instrument reads : "We promise to pay," etc., but the plural pro- noun "we," in the first person, cannot properly be used by a corpo- ration. The name of the company appears on the instrument above the line in which are written the place and date of execution. The signature of the instrument is "R. J. Beatty, president." It is not stated of wdiat corporation Mr. Beatty is president, or on whose behalf, or as whose agent he signs the paper. The words "we prom- ise to pay" are not grammatically correct, if it is understood that Beatty is the sole promisor. Men do not usually describe themselves as president, secretary, treasurer, trustee or agent, when signing their personal contracts by which they intend to bind themselves as individuals. If negotiable paper executed in this manner may be shown by proof of extrinsic circumstances to be the contract of a corporation, or of any un- named principal, then it may be suggested that an indorsee of such instrument might be left in doubt as to the identity of his debtor. On the other hand, it may be said that if the description of the per- son signing the paper must be disregarded, and if the instrument is to be conclusively presumed the contract of the person whose name is subscribed to it, then, in many cases, the person so signing would find himself personally liable for the debt of another, while the holder of the instrument might discover in an action upon it that instead of having, as he supposed, the obligation of a solvent corporation or person, he held only the personal note of an irresponsible officer or agent of such corporation or person. In the usual course of business in this country, the addition of a title, or description of any kind is not customary — indeed, it may be said that such addition or descrip- tion is never appended — when men sign their names to contracts by which they intend to bind themselves in their own proper persons, and not as the representatives of another. Again, it is to be observed that such additions and descriptions as president, secretary, treasurer. 152 EXECUTION OF AUTHORITY. trustee, agent, and the like, plainly import a relation to some other person, as a principal, distinct from the person subscribing the instru- ment. Besides, the appearance of such description of the party signing the instrument is sufficient, in fact, to apprise the other party that the person so signing his name and describing himself, is not the principal in the transaction, but, that another, disclosed or undisclosed, is the real party in interest; or, at least, such addition or description is sufficient, in fact, to put the other party upon inquiry, both as to the identity of the real principal and the authority of the agent to bind him. We do not mean to assert here, however, the sufficiency in law of every such indication that the paper is exe- cuted in a representative capacity only. The decisions in this state upon the question presented here cannot easily be reconciled or distinguished. Among those holding that ex- trinsic evidence is not admissible to show that a contract executed by one who adds to his signature the words president, secretary, agent, trustee, etc., is not the contract of the person so signing, but the obligation of another party, are the following: Prather v. Ross, 17 Ind. 495; Kendall v. Morton, 21 Ind. 205; Wiley v. Shank, 4 Blackf . 420 ; Mears v. Graham, 8 Blackf . 144 ; Hays v. Crutcher, 54 Ind. 260 ; Williams v. Second Nat. Bank, 83 Ind. 237 ; Willson v. Nicholson, 61 Ind. 241 ; Hayes v. Brubaker, 65 Ind. 27 ; Avery v. Dougherty, 102 Ind. 443; Hobbs v. Cowden, 20 Ind. 310; Jackson School Tp. V. Farlow, 75 Ind. 118, 123. A different view seems to have been taken in other cases. Means V. Swormstedt, 32 Ind. 87 ; McHenry v. Duffield, 7 Blackf. 41 ; Pit- man V. Kintner, 5 Blackf. 250, 33 Am. Dec. 330 ; Kenyon v. Williams, 19 Ind. 44; Bingham v. Kimball, 17 Ind. 396; Indiana, etc., R. Co. v. Davis, 20 Ind. 6 ; Gaff v. Theis, 33 Ind. 307 ; Vater v. Lewis, 36 Ind. 288; Pearse v. Welborn, 42 Ind. 331 ; Neptune, Adm'r, v. Pax- ton, Rec, 15 Ind. App. 284; Louisville, etc., R. Co. v. Caldwell, 98 Ind. 245 ; Second Baptist Church v. Furber, 109 Ind. 492, 496 ; Swarts V. Cohen, 11 Ind. App. 20; Hunt v. Listenberger, 14 Ind. App. 320. In reviewing the cases in this state, it will be observed that the court, while adhering to the rule that the words affixed to the names of the persons signing an instrument are to be treated as mere descriptio personarum, deprecates the doctrine as an unreasonable one, and holds, whenever possible, that when the contract itself shows that the words were not merely descriptive of the person, they will not be so regarded. Many exceptions to the rule contended for by the appellee in this case are generally recognized. It does not apply to contracts executed by public officers in the discharge of official duties, i Am. & Eng. Ency. Law (2nd ed.) 1056, and cases cited in note 2 ; Macbeath v. Haldimand, i Durn. & East 172; Sparta School Tp. v. Mendell, 138 Ind. 188. Nor to instru- >.LyrXABLE INSTRUMENTS. y bank officers on behalf of a ~>aiik of State :ad. 90; Board, etc., v. BuU 17 Ind. 129; : of Newbury, i Wall. 234, i ^34; Nave v. 87 Ind. 204; Coi ' .< Bank '. ' , 21 Pick. Am. Dec. 280: '. - Bank t Penio ■)Ughton V. FirSi for the perform;! ■ 2y. Deming v. Bullitt. ...^ xnd. 443, "■ -'-■' "^ ■• 680. - ■; L. ed. 1050 rson, 10 li y Mr. Freeman in his note upon Greenbure v. Wbitcomb Lu' 90 Wis. 225, 6:;^ N. W. 93, 28 L. R. A. 4^ •ii I •;, that, "Upor. nrincinle, the true question case is, or ought to be, whetb^ ,'-v,-i.. ;• .-f, appears therefrom that X. .. x ,. .0 i ation rather than upon the agen" la- IS r.ni ^i'. ail usual for a person, executing a m'j.: -r '., to add words descriptive of himself, or to refer ' other persons, whether natural or artificial, who > n wath the transaction, and, when he designates his ■:.[■■ c capacity, to assume that such designation was intended 'iescription of him.self is to assume something which is erhaps never, in harmony with the facts. Of course, if -■' -: himself as an agent or officer without indicating • ! i is, the instrument must necessarily be accepted as I oi the agent, or treated as void for want of a f^' Tf, on the other hand, he, upon the face of the • only that he is an agent or officer, but also , - or officer, we must be astute to misai>iv concede that he has employed language bet ,-., 'Ki.^o^^Qj^ Qf Ills principal than of himS'L;, . ■.■.^-i\: .- ; to consider an instrument as it would inani- e business it: ^ )d by the p- the latter from liabiiity ^-ears to the court that he o '. understood, to bind himself, but to act for the cor- ii he was the authorized agent. Despatch. ^'^ "■ Co., 12 N. H. 215, 37 .Am. Dec, 203 ; Magi! •4, 16 Am. Dec. 70; Smith v. Alexa' ' Revnolds, 49 Mo. 312 ; Pratt v. Bear ' , n Conn. 627 ; Wyman v. Gr.i; ,:4.«rlf 32 Ind. 87, 2 Am. Rep 29; Farmers', etc., B ■■, ami 1"!; : ii ■rincipal, (lis ;o person . iii-,1 'ri ;n' Ml . iioth as ^ •.s.mIv be rec Wm oIjIj. T7 Ind. Blackf. ., fud. 260; \\ \':cholson, ( ■ ' ugherty, : --.hool Tp. V A differcT - laui >jj 1.0 ^t'liit; other .ibscribing the instru- lescriptioii of the party ■ ct, to n.'^r'rTse the other •;t ; or, at least, such addition o put the other party upon . oal principal and the authority rt here, however, the paper is exe- jiily. 'be question ij here cannot iiolding that ex- ontract executed •.ident, secretary, 1 so signing, but Prather v. Eoss. 237; Wilison V. . L -■ - , , nd. 27; Avery v. V. Cowden, 20 Ind. 310: Jackson ,;. 123. • ■ been taken in other cases. Means nienry v. Duffield, 7 Blackf. 41 ; Pit- ?3 Am. Dec. 330 : Kenyon v. Williams, 17 Ind. 396; Indiana, etc., R. Co. -, 33 Ind. 307; Vater v. Lewis, 36 ind. 331 ; Neptune, Adm'r, v. Paxr . ...isville, etc., R. Co. v. Caldwell, 98 hurch v. Furber, 109 Ind. 492, 496; ■ - • ^'^ ■^. V. Listenberger ^' '^" ' .-tate, it ' I'ved Uut the hat the .. to the names iment are U> be treated as mere , . .. :,,:s the doc!rire a- ;t!i unreasonable r possible, that act itself - .. Av .,-"-•'■ ■''=•■■ -■Ttn. thev dis.:h_w_ and cas j comcnaea lor oy ir,e aj^pejiee m this public officers rr Law (2nd ed.) . land, I Dum. & East tR^ Nor to h-!.^tru- NEGOTIABLE INSTRUMENTS. 1 53 merits executed by bank officers on behalf of a bank. Bank of State V. Wheeler, 21 Ind. 90; Board, etc., v. Butterworth, 17 Ind. 129; Baldwin v. Bank of Newbury, i Wall. 234, 17 L. ed. 534; Nave v. First Nat. Bank, 87 Ind. 204; Commercial Bank v. French, 21 Pick. (Mass.) 486, 32 Am. Dec. 280; Watervliet Bank v. White, i Denio (N. Y.) 608; Houghton v. First Nat. Bank, 26 Wis. 663. Nor to simple contracts for the performance of agreements other than the payment of money. Deming v. Bullitt, i Blackf. 241 ; Avery v. Dougherty, 102 Ind. 443, 52 Am. Rep. 680 ; Whitney v. Wyman, loi U. S. 392, 25 L. ed. 1050; Post V. Pearson, 108 U. S. 418, 27 L. ed. 774- It is said by Mr. Freeman in his note upon Greenburg v. Whitcomb Lumber Co., 90 Wis. 225, 63 N. W. 93, 28 L. R. A. 439, 48 Am. St. 911, on p. 919, that, "Upon principle, the true question for considera- tion in every case is, or, at least, ought to be, whether, taking the writing as a whole, it sufficiently appears therefrom that it is intended to be binding upon the corporation rather than upon the agent who has signed it. It is not at all usual for a person, executing a note or other contract, to add words descriptive of himself, or to refer to his relation to other persons, whether natural or artificial, who have no connection with the transaction, and, when he designates his representative capacity, to assume that such designation was intended merely as a description of himself is to assume something which is rarely, and perhaps never, in harmony with the facts. Of course, if he only describes himself as an agent or officer without indicating who his principal is, the instrument must necessarily be accepted as the obligation of the agent, or treated as void for want of a desig- nated obligor. If, on the other hand, he, upon the face of the writ- ing, discloses not only that he is an agent or officer, but also of whom he is such agent or officer, we must be astute to misapprehend, or else we must concede that he has employed language better calculated to evidence the obligation of his principal than of himself. There is a growing inclination to consider an instrument as it would mani- festly be understood by the average business man, or, in other words, as it was most probably understood by the party receiving and the party signing it, and to exonerate the latter from liability when, ac- cording to such construction it appears to the court that he did not in- tend, and was not understood, to bind himself, but to act for the cor- poration of which he was the authorized agent. Despatch, etc., Co. v. Bellamy, etc., Co., 12 N. H. 215, 37 Am. Dec. 203 ; Magill v. Hins- dale, 6 Conn. 464, 16 Am. Dec. 70; Smith v. Alexander, 31 Mo. 193 ; McClellan v. Reynolds, 49 Mo. 312 ; Pratt v. Beaupre, 13 Minn. 187; Johnson v. Smith, 21 Conn. 627; Wyman v. Gray, 7 Harr. )& J. 409 ; Means v. Swormstedt. 32 Ind. 87, 2 Am. Rep. 330 ; Vater v. Lewis, 36 Ind. 288, 10 Am. Rep. 29; Farmers', etc.. Bank v. Colby, 64 Cal. 352, 28 Pac. 118." See also the very clear and full state- 154 EXECUTION OF AUTHORITY. merit of the modern doctrine on this subject in 4 Thomp. on Corp., § 5 141 ct seq. In Carpenter v. Farnsworth, 106 Mass. 561, 8 Am. Rep. 360, a check had "Aetna Mills" printed on the margin, was signed "T. D. F., Treas.," and was given for the debt of the mills. It was held not to bind F. personally. Gray, J., "The court has always laid hold of any indication on the face of the paper, however informally ex- pressed, to enable it to carry out the intention of the parties." In Roberts v. Austin, 5 Wharton (Pa.) 313, the action was brought by the payee against the drawer of a bill of exchange, signed by the latter in his own name merely. Parol evidence was admitted to show that the drawer was agent of the drawee, and had given the bill in the business of the latter, and that the payee knew the facts when he received the bill. In Moore v. McClure, 8 Hun 557, parol evidence was held ad- missible to charge the principal on a note sig-ned "A. B., Agent." The court said : "The fact that the name of the principal does not appear on the face of the note is not, under the modern decisions in this state, at all conclusive. If it was intended to be given in the business of the principal, was in fact so given, and with due author- ity, it is binding on the principal, and all this is matter of evidence." In Hicks v. Hinde, 9 Barb. 528, a draft in favor of the plaintiff was signed "John Hinde, Agent," and extrinsic evidence was ad- mitted to discharge Hinde from liability. In Scanlan v. Keith, 102 111. 634, 40 Am. Rep. 624, the court says : "Where a party signs his name as cashier or agent for a banking, railroad or other corporation, in drawing drafts or bills, or in accept- ing drafts or other evidences of indebtedness, in its ordinary busi- ness, if it appears, or is made to appear, it is the obligation of the corporation, and the cashier or agent or other officer had authority to bind the corporation, he is not personally liable, and the facts may be shown by extrinsic evidence." See, also. Hypes v. Griffin, 89 111. 134, 31 Am. Rep. 71 ; Merchants' Bank v. Central Bank, i Ga. 418, 44 Am. Dec. 665. In Baldwin v. Bank of Newbury, i Wall. 234, 17 L. ed. 534, the court, by Clifford, J., quote with approbation the opinion of John- son, J., in Mechanics' Bank v. Bank of Columbia, 5 Wheat. 326, 5 L. ed. 100, in which it was said : "It is by no means true, as was con- tended in argument, that the acts of agents derive their validity from professing, on the face of them, to have been done in the exercise of their agency." Rules of form, in certain cases, have been prescribed by law, and where that is so, those rules must in general be fol- lowed, but in the diversified duties of a general agent, the liability of the principal depends upon the fact that the act was done in the exer- cise and within the limits of the powers delegated, and those powers are necessarily inquirable into by the court and jury. Maker of the note in that case had signed his name without anv addition to RUMENTS. Ucate his agrem v, whk n the one under < " Sarat rule as .ippnca i '; con- tracts 1; lime been fiilly ;»do|ned b, rsples of the 1 be found in e New ■ gation ' rchants'Bai r. 12 T.. more recent case of Ford v. Williar where th<' • i-'ion was given b^- "^i"'- it is sai' contract of r and he t be sued tli proof V . Imitted to t and it : .Id that the ;> of suci; diet the nt, but only ihe tran. -. "Wli iTincipal's name appears printed in . head o: note executed by aw agent, the forme. ,,. desigiir, L a prudent man up^n enquiry, and to tal ■ out of ■ ; regard to an undisclosed principal." i Encv. ] '[ ed.) 1047, and cases cited in notes. ■ fore us, the " "ly is named in li.t '• on. There . ■ that the name of IS outside of the nore, or that it was not written in and 1: ■ - form a part of it. The complaint avers that the note was given hy the Midland Steel Company, and, in some of its paragraphs tl\ *^ ■• ■ :^iven for a debt owing by the Midland Steel Company to i '. ^ Land Company, and for no other consideration ; that it I to be the note^f the appellee, and was so rec < i ^' 'cllant took it from the payee with that und^ Unut-i i.i^v->c' circumstances we think it may properly b^ note of ■• -■ ""f-dland Steel Comn;:ri, .;id not as the the pe, signed his na' as the pre corpc.r.T.. ., .,i view of the fact li.u m mdorsee is the MiJl'ind Steel Company as the maker, and, .1 i" ''•- took the note with notice that Beatty, ,v; ) it as president, wa«: not honnd. we think ..: ■ ■■■ note was n; of excii ■ ■ ' iee is correc- 1 ii-i,,! •' le as a bill of exchange, then '■'" money and, according to u.v a.^ .^ , ii;> as •ity of parol evidence to explain i- .aracter ii; ic>> • l: ,,,./:i;. It is also a fact of some importance jn ii:e case that the nariy ittempting to escape liability is the one who i<5 ?.llo;r'=>d to be ^ received the- full c id not the officer or : lepresentati . - - transaction. ! he form <■•,• tlie instrument sued . art to p^- ""lusively, that .1 -'-itty. F. !ce is admissible I^J. EXECUTE iip. on Corp.. !'• 360, a . n, v.as s-ned "T. D. mills. It was held not IS always laid hold of wever informally ex- I'lion of the parties." ^ Hie action was brought (hans^e, signed by the \rin\r:.. ■ - ' "litted to show \vco, an en the bill in thi- - held ad- _ .. Agent." ipal does not y.^rn decisions in ■J be given in the aid with due author- . ' matter of evidence." o, a draft in favor of the plaintiff .' and extrinsic evidence vaf n'l- liability. nt for a ban: ,r bil s, or in acccjjt- in its ordinary busi- '■ >n of the : authority •he facts may .. Griffin, 89 111. ,:k V. Central Bank, i Ga. 418, • Wall. : ed. 53-^ ■.ote Vriih .4'prob; of John uik V. Bank of 1. It. 3^6, 5 r was said : "It is by . was con- i.,!( t'lp r:c('< of agent - lity from <> have b ercise u jjrescribe' ncral be fo' he liability • in the exer the not'. t anv addition i- NEGOTIABLE INSTRUMENTS. 1 55 indicate his agency, which makes the case a stronger one than the one under consideration. Same rule as appHed to ordinary simple con- tracts has since that time been fully adopted by this court. Examples of the kind are to be found in the case of the New Jersey Steam Navi- gation Co. V. Merchants' Bank, 6 How. 381, 12 L. ed. 465, and in the more recent case of Ford v. Williams, 21 How. 289, 16 L. ed. 36, where the opinion was given by Mr. Justice Grier. In the latter case it is said that the contract of the agent is the contract of the principal, and he may sue or be sued thereon, though not named therein. Parol proof may be admitted to show the real nature of the transaction, and it is there held that the admission of such proof does not contra- dict the instrument, but only explains the transaction." "Where the principal's name appears printed in the margin or head of a bill or note executed by an agent, the former is sufficiently designated to put a prudent man upon enquiry, and to take the case out of the rule in regard to an undisclosed principal." i Am. & Eng. Ency. Law (2nd ed.) 1047, and cases cited in notes. In the case before us, the Midland Steel Company is named in the instrument sued on. There is nothing to indicate that the name of the company is outside of the note, or that it was not written in and intended to form a part of it. The complaint avers that the note was given by the Midland Steel Company, and, in some of its paragraphs that it was given for a debt owing by the Alidland Steel Company to the Midland Land Company, and for no other consideration ; that it was intended to be the note of the appellee, and was so received, and that the appellant took it from the payee with that understanding. Under these circumstances Vv^e think it may properly be treated as the note of the Midland Steel Company, and not as the obligation of the person who signed his name to it, as the president of that corporation. In view of the fact that an endorsee is seeking to charge the Midland Steel Company as the maker, and, as the endorsee al- leges, that it took the note with notice that Beatty, whose name was subscribed to it as president, was not bound, we think it unimportant whether the note was negotiable as a bill of exchange or otherwise. If the appellee is correct in its contention that the instrument was not negotiable as a bill of exchange, then it was a simple contract for the payment of money and, according to the authorities, the rule as to the admissibility of parol evidence to explain its true character is less stringent. It is also a fact of some importance in the case that the party attempting to escape liability is the one who is alleged to be the real debtor, and who received the full consideration for which the note was executed, and not the officer or agent who undertook to execute it in his representative capacity and who derived no personal benefit from the transaction. The form of the instrument sued on is not such as to require the court to presume, conclusively, that it is the obligation of R. J. Beatty. Extrinsic evidence is admissible to explain the instrument, 156 EXECUTION OF AUTHORITY. and to show that it was intended and understood by the parties to be the note of the Midland Steel Company. The averments of each paragraph of the complaint were sufficient to authorize such proof, and to fix the liability intended to be created by the instrument where it properly and justly belongs. The pre- vious decisions of this court inconsistent with the views expressed in this opinion are overruled. The judgment is reversed, with instructions to the court to overrule the demurrers to the several paragraphs of the complaint, and for further proceedings in accordance with this opinion.^ ^ Where the agent's name alone is signed to a negotiable instrument, and nothing appears in the body of the instrument to indicate that any other per- son is to be bound, it is generally held that parol evidence is inadmissible to show that the note was made by the agent for a principal. Bartlett v. Hawley, 120 Mass. 92; Wing v. Click, 56 Iowa 473; Hayes v. Matthews, 63 Ind. 412; Williams v. Bank of Lafayette, 83 Ind. 237. In Sturdivant v. Hull, 59 Me. 172, a note signed "John T. Hull, Treas. St. Paul's Parish," was held to be the personal obligation of Hull. The court decided that evidence to show that Hull made the note on behalf of and for the sole benefit of the parish had been properly excluded. On page 174, Barrows, J., said: "When a man has deliberately said in writing, 'I promise to pay,' and a valid consideration for the promise is shown, right and justice are not very likely to be gainers by allowing him to retract and to undertake to prove that he did not actually mean 'I promise,' but that he meant and the other party understood that he meant, that some third party, whose promise the writing does not purport to be, undertook the payment." Compare with this case, Shoe, etc., Bank v. Dix, 123 Mass. 148. There is stronger reason for excluding parol evidence when the action on the note is brought by a holder in due course. See Casco Nat. Bank v. Clark, 139 N. Y. 307. Where the instrument is ambiguous, the tendency of the more modern deci- sions is to allow the admission of parol evidence to show the intent of the parties. See collection of cases, Reinhard on Agency, § 216. In Hardy v. Pilcher, 57 Miss. 18, Chalmers, J., said: "Ordinarily no extrinsic testimony of any kind is admissible to vary or explain negotiable instruments. Such paper speaks its own language, and the meaning which the law affi.xes to it cannot be changed by any evidence aliunde. One of the few exceptions to the rule is, where anything on the face of the paper suggests a doubt as to the party bound, or the character in which any of the signers has acted in affixing his name, in which case testimony may be admitted between the original par- ties to show the true intent." See also Laflin, etc., Co. v. Sinsheimer, 48 Md. 411, in which Robinson, J., said: "Parol evidence in such cases does not con- tradict, alter, or add to the written instrument, but explains the intention of the parties, which could not be ascertained with any degree of certainty from the face of the instrument itself." See collection of cases and statement of rule in Mechem on Agency, §§ 441- 443- SIMPLE CONTRACTS. 157 (c) SIMPLE CONTRACTS. THOMPSON V. CHOUTEAt 1849. Supreme Coi-'"" 'IT ^. Tree. UT,.-. JUDCiK NaPTON delivered t.hc^ '>^in;i';ir fi U;c vi'-.-rc. The special agreement upon which this action of assumpsit is based was executed bv the parties in discharge of a previous ■ signed by "J. T.' V. Thompson and A. Shiff, for JacoH M. ■ The substitute agreement relates to the same suV. signed by "A. Shiff, by his agents, Choteau |& \ :.- Thompson." In this last agreement Thompson "agr not exceeding 12,500 bushels of good, merchantable ■■ . . ' -i-w Shiff, to be r^iid for at the rate of 40 cents per bushel of 56 rounds, and th'^ ' IflF also, in full of the written contract, agr ceive nr jng the said 12,500 bushels of com, and to 1 for at the rate of 40 cents per bushel, clear of all charges, payment 10 be nn^de at St, Louis, by Choteau & Valle, and the corn to be !■ = ; ; I to Choteau & Valle, at St. Louis, by said Thompson, within the tii>-ning month, to be at Shiff's risk and expense when on board the steanibr)at. The declaration avers the delivery of the corn, and that by the agreement the defendants, Choteau & Valle, were bound to pay the six thousand dollars. The only question for our determina- tion is, whether the contract, as set out, bound the defendants. The general principles which regulate the liabilities of principal and agent are not disputed. Where the agent acts in the name of his principal the agent is not liable. Patterson v. Gaud, 15 East. tTv But this rule has its exceptions; it does not apply when the pri is ' to the party dealing with the agent; nor ' n? le principal to resort to ; nor where the ai !:- his own. question in this case is whether the agent has ma. contract his own. The contract is set out in pai-e verba in the declara- tion, rind no question in relation to the principal being a foreigner, or tiT.l ^n, or irresponsible, are presented by the case. The written CM '-fie is relied on. be any doubt that Shiflf, the principal, was bound by this It is exeruted in his name. ' led by his agent* ir rreciselv that form directed l^ v. ^vhen +he ^g-^nf ' the principal. Spencer v. Fi-. _s to deliver the corn to Shiff, and for it at the rn;e of 40 cents per bushel. It is true tha ;.- .,: i .. .., .. c^ Louis, and by Choteau & V.-'J''^ ition of the place and mode icau 0: \ aiic :. -i , . , . names are not i it was i: • . parties to be iclland S . ents of each int were sufficient -uch prooi" I ..v.aded to be created ;inent wi y belongs. The pre- uli the views expressed in ' .ns to the court to overrule <»f the complaint, and for ■■(.her procv ■■i this opinion.^ :1 to a nt nstrument, an' .Liit to in ' any other per- i iliat par nadmissible to - "It fnr a - 'ett V. Hawley, ^ 6^ Ind. 412, , Hull, 59 Me. ICrt,-. .,-• V as held to be the court d dence to show that and for ;... of the parish had 174, Barrows. "When a man has mise to pay,' Met consideration for wid jxtstice are not \ery Hkely to be gainers by ro undertake to prove that he did not actually _ meant and the other party understood that he . whose promise the writing does not purport to Compare with this case, Shoe, etc., Bank v. Dix, linger reason for excluding parol evidence when nrought by a holder in due course. See Casco Nat. 307. is ambigxious, the tendency of the more modern deci .mission of parol evidence to show the intent of the >f 1 ases, Reinhard on Agency, § 216. In Hardy v. s, J., said: "Ordinarily no extrinsic testimony 1 van;- or explain negotiable instruments. Such pap' '" meaning which the law affixes to it r-mr: 'ide. One of the few exceptions to the the paper suggests a doubt as to thi .my of the signers has acted in afFixinr ' "ed between the original par - c Co. V. Sinsheimer, 48 Md. .i^i.>.e in "^"''^ ^ .-..'-s does not con cnt, but 'e intention of ,'-ith any ■ certainty from ale in Me. vgency, §§ 441- SIMPLE CONTRACTS. 157 (c) SIMPLE CONTRACTS. THOMPSON V. CHOUTEAU and VALLE. 1849. Supreme Court of ]\Iissouri. 12 Mo. 488. Judge Napton delivered the opinion of the court. The special agreement upon which this action of assumpsit is based was executed bv the parties in discharge of a previous agreement signed by "J. T.' V. Thompson and A. Shiff, for Jacob M. Ober." The substitute agreement relates to the same subject-matter, and is signed by "A. Shiff, by his agents, Choteau |& Valle and J. T. V. Thompson." In this last agreement Thompson "agrees to furnish not exceeding 12,500 bushels of good, merchantable corn to said Shifif, to be paid for at the rate of 40 cents per bushel of 56 pounds, and the said Shiff also, in full of the written contract, agrees to re- ceive not exceeding the said 12,500 bushels of corn, and to pay there- for at the rate of 40 cents per bushel, clear of all charges, payment to be made at St. Louis, by Choteau & Valle, and the corn to be shipped to Choteau & Valle, at St. Louis, by said Thompson, within the ensuing month, to be at Shiff's risk and expense when on board the steamboat. The declaration avers the delivery of the corn, and that by the agreement the defendants, Choteau & Valle, were bound to pay the six thousand dollars. The only question for our determina- tion is, whether the contract, as set out, bound the defendants. The general principles which regulate the liabilities of principal and agent are not disputed. Where the agent acts in the name of his principal the agent is not liable. Patterson v. Gaud, 15 East. 162. But this rule has its exceptions ; it does not apply when the principal is unknown to the party dealing with the agent ; nor where there is no responsible principal to resort to ; nor where the agent makes the undertaking his own. The only question in this case is whether the agent has made the contract his own. The contract is set out in pace verba in the declara- tion, and no question in relation to the principal being a foreigner, or unknown, or irresponsible, are presented by the case. The written contract alone is relied on. Can there be any doubt that Shiff, the principal, was bound by this contract? It is executed in his name, and signed by his agents for him in precisely that form directed by the law. when the agent intends to bind the principal. Spencer v. Field, 10 Wend. 87. Thompson agrees to deliver the com to Shiff, and Shiff agrees to pay for it at the rate of 40 cents per bushel. It is true that this payment is to be made at St. Louis, and by Choteau & Valle, but that seems to be a mere designation of the place and mode of payment. Cho- teau & Valle take care not to bind themselves to anything. Their names are not to the instrument except as agents. It is Shiff's con- 158 EXECUTION OF AUTHORITY, tract to pay, through Choteau & Valle ; not the contract of Choteaii & Valle. It does not appear upon the face of the writing that Choteau & Valle have made any contract with the plaintiff. They have merely executed a contract for Shiff, their principal, and executed it in the name of their principal, so as to bind him and not them. What facts may exist outside of the instrument of writing which might subject them to responsibility, cannot be considered in this case. No such facts are alleged in the declaration. Judgment affirmed.^ OFFUTT V. AYRES. 1828. Court of Appeals of Kentucky, 7 T. B. Mon. 356. Opinion of the court by Judge Mills. This is a summons and petition against Benjamin Ay res, on the following note : "On the twenty-fifth day of December, eighteen hundred and twenty-five, I promise to pay S. Offutt one hundred and fourteen dollars, for the hire of Harry. For B. Ayres, Lex., Feb. 28, 1825. W. B, Ayres,'' There was a demurrer to the petition, and that demurrer was sus- tained by the court below, and judgment rendered for the defendant, from which the plaintiff has appealed. The question is, is this note to be taken on its face as the note of B. Ayres, or W. B. Ayres ? If of the former, the judgment is wrong ; if the latter, the judgment is right. Whether W. B. Ayres was or was not the agent of B. Ayres is not material. If he was not the agent, then there could be no question that he alone is bound in the . note. If he was the agent, it was competent for him to interpose his own credit and deal upon it, while dealing for his principal ; and the question then turns upon the meaning of the instrument. On whom does it impose the obligation, on the principal or the agent? Upon the letter of the instrument there can be no doubt. Accord- ing to its grammatical import, it is the undertaking of W. B. Ayres. His signature to the note is in the same case, with the pronoun "I," which precedes ; and "1" is nominative to the very "promise." Trans- pose the words as we please, the same meaning follows their letter. If the note read, "I, W. B. Ayres, promise to pay for B. Ayres," the sense would have been so striking that there could not have been any dispute, without violence to the letter ; and yet the order in which the words are placed leaves the sense the same, and places every noun ^Accord: Thilmany v. Iowa Paper-Bag Co., 108 la. 357. / ; ,r ^. L the san, ode and ten=; XlKl ill L L i lie more ■ 9.!^ to 'I •;■'■-''' ilar use, on of tl SO far trom the ie narlies in the sense that, to acceptation. But this di Tt of chane^ins^ grammancai ves. and placing one case of ' ry to aver and prove mi: -d, in :^''r!.'^nt itself. Until this i; o has be left bound by th. • ^ of his under ".of Ivici'Can v. x\iorrisnii^ i .\i:'.r>. . . the chief jv -renting, must be affirmed, v.iUi j. — (Dissenting. ) vd by petition and summons, and "states that he holds '■defendant, Benjamin Ayres,»in substance as folio weth : ' ^' rnber, 1825, I promise to pay S. Offutt one hun- llars, for the hire of Harry. For B. Ayres, ry 28, 1825. -' . ^^^ r. emains unpaid," etc. • ' lemurred. Tnr ,rairt gave judp^n-u nt f, !r 'Irf.-nr'- ■ ■ Avritiiii;, iL ^ :ems to m" " by his agent, W. J c:i3.'-.u.- ' [ the in^ •orly pi; '71'lcrStri: [ by liiS ciil;cUL i> and cle3!Tn.-^-. '■■ m common use. Ihat the writing was i: -i w-mT n promise by B, Ayres, by f^' B. Ayres, as his agent, eviiA'.i. :ul: 1 understood at once by ins ; in it neoes=;arv t , c.ill in anything more by w :iin to my view, it to be the note of Benjamin of \V. B. Ayres to act for hmn in ir *^if' statement in the petition, that 'i Henjami 7 plea Benjamin Ayres had <' • ve ma(i uted a • ;me of V: sucl s •lit 1 act of Choteau ' itiiig- that Choteau the plaintiff. They have •r i^'-i'-"'ipal, and executed : nim and not them. uisrrumcnt of writing which cannot be considered in this lie declaration. Judgment B. Mon. 356. Ayres, on the t\\. fn mi whirl' I VI. tlr CO' iensc V any dh] the wor Offutt one hundred and fourteen For B. Ayres^ W. B. Ayres/^ hat demurrer was sus- cndered for the defendant, as the note of :ient is wrong; not the agent of B. Ayres is not lien there could be no question If he was the agent, it was own credit and deal upon it, .cl the. question then turns upon the \-h':>m does it impose the obligation, 'ubt. Accord- '., it IS the u -; of W. B. Ayres. in the same e.... , >, ..h the pronoun "I," cminative to the very ''promise." Trans- '' ■ same meaning follows their letter. promise to pay for B. Ayres," the ihere could not have been , and vet the order in which ■ 1 places every noun SIMPLE CONTRACTS. 1 59 and verb in the same case and mode and tense in which they would stand in the way supposed. The position only makes the sentence a little more obscure. It may be said that the note is an inaccurate way of executing an authority, and that it is so customary as to demand of the court a construction of the words different from their proper meaning. It is true that instances may be found where the meaning of a word is changed by its popular use, so far from the proper sense that, to effectuate the intention of the parties in the use of it, courts have adopted the popular acceptation. But this doctrine ought not to be carried to the extent of changing grammatical construction, and transposing nominatives, and placing one case of nouns for another. To do this, it is necessary to aver and prove mistake or fraud, in order to change the instrument itself. Until this is done, he who has undertaken, or "promised," must be left bound by that undertaking or promise ; and it would be erroneous to release him from the literal and proper meaning of his undertaking. With this accords the case of McBean v. Morrison, i ]\Iarsh. 545, and Duval v. Craig, 2 Wheat. 56-57. The judgment, the chief justice dissenting, must be affirmed, with costs. Bibb, Ch. J. — (Dissenting.) Offutt sued by petition and summons, and "states that he holds a note on the defendant, Benjamin Ayres, in substance as followeth : On the 25th of December, 1825, I promise to pay S. Offutt one hun- dred and fourteen dollars, for the hire of Harry. For B. Ayres, Lexington, February 28, 1825. W. B. Ayres. Test, Ezra Offutt. Yet said debt remains unpaid." etc. The defendant demurred. The court gave judgment for defend- ant. Upon the face of the writing, it seems to me to be the note of B. Ayres, executed for him by his agent, W. B. Ayres. That such is the genuine, unadulterated meaning of the instrument, my mind per- ceives as clearly as it is capable of understanding any proposition. This mode of executing a note for the principal by his agent is plain, compendious, and, from its artless simplicity and clearness, is con- venient and in common use. That the writing was intended to sig- nify, and does signify, a promise by B. Ayres, by his note of hand, executed for him by W. B. Ayres, as his agent, is, to my mind, a self-evident truth, to be understood at once by inspection. Nor do I deem it necessary to call in anything more by way of confirmation of a proposition so plain to my view. The petition states it to be the note of Benjamin Ayres ; he has not denied the authority of W. B. Ayres to act for him in that behalf; the demurrer admits the statement in the petition, that it is the note of Benjamin Ayres. If by plea Benjamin Ayres had denied that the l6o EXECUTION OF AUTHORITY. note was his act, then, to have charged him, it would have been neces- sary to prove the authority of W. B. Ayres. The demurrer does not question the authority of W. B. Ayres to act for Benjamin. But if W. B. Ayres had falsely assumed an agency, when in truth he had not authority to bind Benjamin, then W. B. Ayres would have been personally responsible ; not by reason of this or that form by which he called himself agent, but upon the general principle that every one becomes personally responsible for falsely asserting an authority and acting on behalf of another, when in truth and in fact he had not the lawful authority so to act in the name of that other. My opinion is that the judgment should have been for the plaintiff, Ofifutt.i HIGGINS V. SENIOR. 1841. Court of Exchequer. 8 M. & W. 834. Parke, B. — The question in this case, which was argued before us (a) 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 sale and delivery by him of goods above the value of iio, it is 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 con- tract, so as to give the benefit of the contract on the one hand to (b), and charge with liability on the other (c), the unnamed prin- cipals ; 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 contra- dicts 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 contract- ^ Accord: Crutcher v. M. & C. R. R., 38 Ala. 579- Contra: King v. Handy, 2 111. App. 212; Ford v. Dist. of Stuart, 46 la. 294; McCall V. Clayton, 44 N. Car. 422. rTRAc:";-. i-?i -ij ',■.>; ill - view o{ '- is true ; nes v. i. tiic ground I....L ti ■. ^.■,:-,^.'.. .cJly i^-"*^'- r Lord Denman, in deliveringf the ; V. Har. person, named ] to pay a debt : d to iii: n;^ving subsequt: ., : possess!' >; of Hill y. P.errott, 3 Taunt. ;ity for the .' to char. ut, not to discharge Rcao PRAT: \UPP.F. :; Bcr'.:orc. of S; s to u? EXECUTION OF AUTHORITY then, t( vo been nece "•'"r does n .«n. But . ;h he ha' the ".n l.iAv the act of the ... . ...>v , ..,^t the party CO be personally a contract- ,f "^riiirf SIMPLE CONTRACTS. l6l ing 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 (d) 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 v. Little- dale, 6 Ad. & Ell. 486, I Nev. & A. 677, and Magee v. Atkinson, 2 M. & W. 440. It is true that the case of Jones v. 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. Alagee v. Atkinson is a direct authority, and cannot be distinguished from this case. The case of Wilson v. Hart, 7 Taunt. 295, i Moore 45, which was cited on the other side, is clearly distinguishable. The contract in writing was, on the face of it, with another person, named Read, ap- pearing to be the principal buyer ; but there being evidence 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 possession of them, it was held, on the principle of Hill v. Perrott, 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. 2, p. 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.^ PRATT V. BEAUPRE. Supreme Court of ]\Iinnesota. 13 Alinn. 187. McMillan, J. — This action is brought by the plaintiff to recover damages for an alleged breach of a contract to transport and deliver certain flour. The contract is in the following words : "Saint Paul, ^lay 6, 1863. "We, Temple & Beaupre, of Saint Paul, Ramsey County, Minne- sota, for the consideration of twenty-five dollars to us in hand paid, the receipt whereof is hereby acknowledged, have bargained, agreed * For discussion of English and American rules see Barbre v. Goodale, 28 Ore. 465, 470. 11 — Reinhard Cases. l62 EXECUTION OF AUTHORITY. and contracted with B. F. Pratt, of Saint Peter, to receive at his mill in Saint Peter, county of Nicollet, state aforesaid, one thousand and four hundred barrels (1,400) of flour, and transport the same and deliver to Capt. M. P. Small, commissary of subsistence for the United States, on the levee in Saint Paul, at such time as he, the said Small, shall direct, for the sum of twenty-five cents for each barrel so transported and delivered in good order. (Signed) Temple & Beaupre, B. F. Pratt. Agents steamer Flora." The words "agents steamer Flora," attached to the signature of Temple & Beaupre, are dcscriptio personarwn. The rule is that when words which may be either descriptive of the person, or in- dicative of the character in which a person contracts, are affixed to the name of a contracting party, prima facie, they are descriptive of the person only ; but the fact that they were not intended by the parties as descriptive of the person, but were understood as deter- mining the character in which the party contracted, may be shown by extrinsic evidence, but the burden of proof rests upon the party seeking to change the prima facie character of the contract. And when a party who thus seeks to change the prima facie character of the contract, does so on the ground of agency in making the contract, the fact of his agency must be established ; for if he acted as an agent without authority, he is personally liable. On the trial of this cause, the only evidence was the deposition on the part of the plaintiff. The defendant offered no evidence. There is no evidence to establish the fact of the agency of Temple & Beaupre. In the absence of evidence to prove that fact, those portions of the deposition of the plaintiff indicated by the letters a, b, and c, respectively, although under other circumstances they might be competent as evidence tending to show that the plaintiff contracted with them as agents, are not material. They were, therefore, properly stricken out. This determines the only point raised by the defendant's counsel. The judgment below is affirmed.^ ^In Prather v. Ross, 17 Ind. 495, Davison. J., quoted with approval the fol- lowing passage from Story on Agency : "In order to bind the principal and make it his contract, the instrument must purport, on its face, to be the con- tract of the principal, and his name must be inserted in it, and not merely the name of the agent, even though the latter be described as agent in the instru- ment." "Where the question of agency in making a contract arises there is a broad line of distinction 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 purport to be his deed and not the deed of the agent covenanting for him. In the latter case the question is always one of intent; and the court, being untrammelled by any other con- sideration, 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 car- g:m?le cov;rRAC~?>. jCr, TlltO execution. I.. ...K. v.^.•,;•i.^^ i -... .. ,; r.l^l- ot how it is phrased, nor how it i;; : for the : :il 'f with tlit- narrif^ ■ T ! he princip_- .., -,..:- Thf in- ), and when that is asce: .■.' lan, loi U. S. 392, 395. \ /as ! wkli approval b> lnjcker, J., in Blount v. Tomiin&on, 4b i>u. /Si ;S3. F.X' '.tracted with . receive at his mill . Peter, county c aid, one thousand and ■•• 'ted barrel'- ; ransport the same ^nd C^apt. M of subsistence for tlie ", " ' ., at such time as he, the twenty-five cents for each good order. Temple & Beaupre, PftATf. Agents steamer Flora." ■ed to the signature of •Hi. The rule is that ;).Ti r descriptive of the person, or in- ■(^:aiiv' '- ;i iicr?;on r. ,7-i^;:i(-ts, are affixed to- the nan ey are descriptive of the - not intended by the parties understood as deter- m'l! ' fd. may be shown by ts upon the party seel facie k . ;te contract. And \vh< to chaiv^ ' facie character of ihe . ..round of agency in making the contract, till e established : +' - '^' he acted as an agent w't jnally liable. trial of this cause, t' 'losition on the p.ir- ..f the plaintiff. The e. There is no evidence to establish the & Beaupre. In the al>sence of evidence );tions of the deposition of the plaintiff , b, and c, respectively, although under other .,,-:t be competent as evidence tending to show tracted with them as agents, are not material. - .-- -erly stricken out. '''^'' determines the adant's counsel. Av IS atiirmed.^ f7 Ind. 495, Davison, J . tory on Agency: "In c- tol- ■\ and ■ not mer'. :it in the ; not ib .. si'!' law-, .-.■- merely agency in making a contr, here is a broad instruments under seal ;! ions in writing Tn the former case tlj: must be in the rder seal, and must piiii/oi; to be his deed and iitir.g for him, In the latter case the question court, hri: melled by any other con- ::Gt. As t' -, of the law-maker is the ratting par, ■ -. .> me agreement. Words are io manifest their purpose that it may be car- SIMPLE CONTRACTS. I63 ried into execution. If the contract be unsealed and the meaning clear, it mat- ters 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 in- tent developed is alone material, and when that is ascertained it is conclusive." Swayne, J., in Whitney v. Wyman, loi U. S. 392, 395. The above passage was quoted with approval by Hocker, J., in Blount v. Tomlinson, 48 So. 751 753. CHAPTER VI. DELEGATION OF AUTHORITY, Section 1. — What Authority cannot be Delegated. LYNN V. BURGOYNE. 1852. Court of Appeals of Kentucky. 13 B. Men. 400. Crenshaw, J. — This is an action of debt brought by Burgoyne to recover from Lynn the amount of a note, executed by him to the plaintiff for the sum of $420. Lynn rehed for his defense that there was no consideration for the note. The plaintiff, Burgoyne, was the agent of the Columbus Insurance Company, Ohio, and resided at Cincinnati ; and the note was executed to Burgoyne in consideration that he, as the agent of the company, would issue to the defendant a policy of insurance to the amount of $6,000, upon the steamboat JoJin Dromon, for one year. An instrument, signed by the president of the company, purport- ing to be a policy of insurance, was issued and delivered to the de- fendant by G. W. Williams, the bookkeeper of the company at Cin- cinnati. This instrument, upon its face, declares that it "shall not be valid until countersigned by John Burgoyne, agent at Cincinnati." It never was countersigned by Burgoyne. But, some time after said instrument had been delivered to the defendant, two endorsements were made upon its back — one extending further privileges to the defendant, and the other transferring the instrument to Smith and others ; and these endorsements are signed with the name of Bur- goyne by said G. W. Williams, and it is contended that, if the policy were otherwise invalid for the want of the counter-signature of Bur- goyne in regular form, that his name to said endorsements by G. W, Williams is a sufficient countersigning to make the instrument a valid policy. Whether the instrument, had it been issued and delivered by Bur- goyne himself, as a policy of insurance, would have been valid, not- withstanding an omission to countersign it, and, whether the endorse- 164 d as a sufficient countersigiiing and sanction iirgoyne, the agent, had '' ^ --elf, put his 1 not be decided. For, th of the in- ^ to the endorsements, a.c ail the acts of per. ■ii Vviliiams was taken, and he he had :: -rity for signing policies of ii''- ' ' losses -.lid company on policies which [ never a, and that Burgoyne recognize- ' —.-r.t. ■n with the company." r may have ^ ■ ' ' Burgo) :• ' 'illiam?, and as acts, Williams, i- . 1 , it the compar. ; ' U.' of doing busmess at their agency m li, .^ceived their sanction and approbation. - . er L', might be given to such acts, in the absence of the - ^f the agent, need not be determined. The instru- \i9. face, is declared to be invalid, without the -nt, Burgoyne ; he alone had authority to of the company at Cincinnati, and he had ate this authority to another. And if it ;. ^ . j; issued as this was, without the counter- -yne, might be rendered valid and effectual by nt approval of the company ; or, that the company .1 been in the habit of sanctioning and approving these things were manifested by the proof. The '.y. from the nature of their business, and <"iie large ■d to be in\' ■ ntegrity. A- •tless selected with an eye to these . horn the company confided, from \, ... in Mr. Williams, who, whatever ma^ -ity and bqsiness capacit- i uv.- t trusts of the company- ■ com- r. . therefore, from the record . -c that the wot appear to be a of in- 'u^utci; ^riicipal and ^?en' rriAPTrr: ..> Vu \ B. Mon, 400. • an ^ct:of» of Af^ht brought by Burgoyne to re. ;ecuted by him to the • .' liis (h-fpTisc that there '- V ' uiijiiju^ Insurance the note was executed t of the company, : to the amount of lur (jiie year. -f the company, purport- id dehvered to the de- . ^.f the company at Cin- clares that it "shall not be yne, agent at Cincinnati." ]v But, some time after said in - . two endorsements wf . r privileges to the de' to Smith ani i . . - L. - name of Buv ntended that, if the polic v.i: . ;.;:,,: ...-..^.f.v --nature of Bui- goyne in re " ents by G. W Williams i- iiKc uic nisirument a vali : and delivered by Bu: 1 have been valid, noi withstanciir. . i . whether the endors-. AUTHORITY. 165 ments might be regarded as a sufficient countersigning and sanction of the instrument by Burgoyne, the agent, had he, himself, put his signature to them, need not be decided. For, the issuing of the in- strument, and the signatures to the endorsements, are all the acts of G. W. Williams, the bookkeeper. The deposition of Williams was taken, and he states that he had Burgoyne's "authority for signing policies of insurance ; that losses were paid by said company on policies which Burgoyne had never signed in person, and that Burgoyne recognized all his acts, by reason of his connection with the company." But whatever may have been done by Burgoyne in conferring au- thority upon Williams, and recognizing his acts, and in paying losses by him, incurred under policies issued by Williams, is, in our opinion, immaterial. For there is no evidence that the company had been ap- prized of this mode of doing business at their agency in Cincinnati, and that it had received their sanction and approbation. Whatever effect, therefore, might be given to such acts, in the absence of the counter-signature of the agent, need not be determined. The instru- ment itself, upon its face, is declared to be invalid, without the counter-signature of the agent, Burgoyne ; he alone had authority to issue policies from the office of the company at Cincinnati, and he had no right or power to delegate this authority to another. And if it were conceded that a policy issued as this was, without the counter- signature of Burgoyne, might be rendered valid and effectual by showing a subsequent approval of the company ; or, that the company had known, and had been in the habit of sanctioning and approving such acts — none of these things were manifested by the proof. The agent of the company, from the nature of their business, and the large amount of capital which may be supposed to be involved, ought to be a man of intelligence, prudence and integrity. And the agent, in this case, was doubtless selected with an eye to these necessary qual- ities. He it is in whom the company confided, from what appears in the record, and not in Mr. Williams, who, whatever may be his in- telligence, discretion, integrity and business capacity, was not the man to whom the important trusts of the company had been com- mitted. We are of opinion, therefore, from the record in this case, that the instrument exhibited does not appear to be a valid policy of in- surance, and, consequently, that there seems to be no consideration for the note sued on. Wherefore the judgment is reversed, and the cause remanded for a new trial. ^ * "Ordinarily, the fiduciary relation of principal and agent cannot be trans- ferred to a stranger by the agent without the knowledge or consent of his principal; and one having from another bare authority to submit a proposi- tion of settlement, or, according to specific directions, enter into an express contract requiring the exercise of some discretion or business ability, has no l66 DELEGATION. COCHELL V. REYNOLDS et al. 1900. Supreme Court of Indiana. 156 Ind. 14. Baker, J. — Appellant duly gave notice of his application and ap- plied to the board of commissioners of White county for a license to sell intoxicating liquors, in less quantities than a quart at a time, to be drunk on his premises. At the proper time a remonstrance in writ- ing, bearing the names of appellees, was filed with the auditor of the county. The remonstrance was filed in pursuance of sec- tion nine of an act better to regulate and restrict the sale of in- toxicating liquors (Acts 1895, p. 248), which reads: "Sec. 9. If, three days before any regular session of the board of commissioners of any county, a remonstrance in writing, signed by a majority of the legal voters of any township, or ward in any city, situated in said county, shall be filed with the auditor of the county against the grant- ing of a license to any applicant for the sale of spirituous, vinous, malt or other intoxicating liquors under the law of the state of Indiana, with the privilege of allowing the same to be drunk on the premises where sold within the limits of said township, or city ward, it shall be unlawful thereafter for such board of commissioners to grant such license to such applicant therefor during the period of two years from the date of the filing of such remonstrance. If any such license should be granted by said board during said period, the same shall be null and void, and the holder thereof shall be liable for any sales of liquors made by him the same as if such sales were made without license. The number to constitute a majority of voters herein referred to shall be determined by the aggregate vote cast in said township or city ward for candidates for the highest office at the last election preceding the filing of such remonstrance." It is agreed that the remonstrance does not contain the required number of signatures, unless the names signed by an agent under a certain power of attorney are to be counted. By the power of attorney the agent "is hereby authorized to sign our names to any remonstrance against the granting of a license to any person he may see fit to re- monstrate against receiving or having any such license, and to file such remonstrance in the office of the auditor of White county, Indiana, at any time he may see fit and present the same to the board of commissioners of White county, Indiana, and all such power and power to delegate his authority." Fuller, J., in Fargo v. Cravens, 9 S. Dak. 646, 650. "The attorney who has been retained to argue a cause must personally per- form that duty, and he cannot entrust that duty to another, or, as said,_ let the case out on shares. Yet this even must be carefully applied. The retainer of one member of a firm is a retainer of all the members, and unless other- wise stipulated the cause might be conducted and argued by any one of them." Marston, J., in Eggleston v. Boardman, 37 Mich. 14, 19. o to do at i uiv aaic nercoi;. iiie error as- Uant's moti'-^n for a new trial. The ther or should be . to the an agfent power ot attorney, . 145 Ind. 8, it was affirmed 1 ;.j^ ,;:; liquor license is a judicial pi . at the \ nature ' of a complaint ; that , n rality or other nnfitriess of thi ; and that, !. )f § 973 I>ai .li. ; ner 1897, ar; . a civil activon '^ a party in person or by attorney, , oplicant's unfitness, signed by the 1 sufficient compliance with § 72* : nd Horner 1897, which provides thai. ;v -;;:r. v.: voter of said township to remonstrate in writing :i of such license to any applicant on account of ■ unfitness as is specified in this act." Under lemental law of 1895, a remonstrance state : iLute a defense if it alleges the opposition 01 the granting of the license. Simply that they ,'plicant's conducting a saloon in their township That the required number, with proper qualifi- i.rants is to be .' ' . -d by proof. H 145. Similar pi ■:. are found in dr courts. Sauntmau \, iviaxwell, 154 lU' majority of the voters is a defense in the ii I the application for the license is pen:' ;■ that opposition, though not c^^-'■-^'•• 'I answer. And it would seen". V a^iK. V. Bell, supra, that the parties iij i.-ivrc-i ir.igiit n and present th^ir remonstrance in writing bv pn att^r- ve in the judicial pr \ere the only maitfr § 240 R. S. 1881 and H< s that 'i~e of any person is requ... ,^. band- ar his mark shall be inte; d concur- ;atute requires an act to " ' ' ' ' . s well may do as the pri' •ice of s^' ' a that tiv answer, si:; 's signature : . . case, i" :ipearing in the I^/? I rn>: B icating u his r,r bearing the couiv ■- nine of '.' rUty CUUH! ■'•ged voter. - county, ing- of •>, inaU CM • t\\'<" for- the of ^ Marston, J., 01 his application and ap~ lie county for a license to s than a quart at a time, to be time a remonstrance in writ- was filed with the auditor is filed in pursuance of sec- ' ' and restrict the sale of in- 2^5), which reads: "Sec. 9. If, 'or> of thr^ Ivard of commissioners a majority of the situated in said f the county against the grant- [''-' ' ■^'- ■ =^oirituous, vinous, of the state of •Irunk on the ship, or city . -t commissioners ■.■^5 present case would not b* the principal which, bv la In State v. Gerharcr Dunlap, 146 Ind. 350 of 1895 there was ere. law is placed in tl.- ' of them ?».? thev n that, therefore, a ing and afterw-'. Tb-' rcifrul.''.: s involved an act of one by an agent. -\. 313, and Massey v. ocction nine of the act g'overnment which by the e exercised by a majority rest interest ;" that the re- n/ast be against a particular the liquor traffic generally; against all applications pend- i.wo years is unavailing. sale of intoxicating liquors is ' die s'" ''"hat power, as an n the le The legislature \ er to ti of the townships ;s comri right to decide or all , ms. He may be isie that ;esist every appli- : trattic and conclude to thwart As to the voter, the right is ..ated right cannot lawfully be 'i ■'•• to that end from the oter. in respect to the this case the rs' names to ,:(i see lit. The decision ,;.aj.. -a in power by the num- The names signed to the re- 'orney should not have been onfer upon another the power -ted to their judgment and dis- ' tiveness of an instrument by 'Or themselves the matter of ;■:•■ own number [srepare, sign .jistrument the agreed to act upon the ex- *ly involved in this appeal. sustain the motion for a 4 . in', !-, is ex- .m. Dele gala potestas non />< But > refer to those agencies " '■ - exe- er; and although this rru s and its in certain cases, yet it 15 uci, i Story on Agency, §§ 13, 14: c ciple is only" invoked when t'-' ^ .; the acts of the sub-agent. It .. n ■ '.es the position of principal, and act is at- iforced in his nar^" ■ - the case ui . c case the facto ; imself the ] his clerk, w' his directic is way he v bound by h parties >uch relations a- ,' ien repe: • by this court ti. J himself by a .sale of the decedent's pe. • oid as t'^ ^'^ , -r-.-:r. . for the reason, douL. v ■ermitte^i t he has deliberately done Snedicor v. ivinoiey, 47 Ala. 507 ; 12 Ala. 298; e sale was made by' the factor's clerk, by their \re seeking to enforce it in part by this suit. If '1 this way they submit thus to be bound. The ise with the vendee. After the sale is completed, ontract can repudiate it. Such is the case here.^ •■'ent of the court below is affirmed.^ aion 13 omitted. r, oi whom lie k;: ■ n snch cases of ?•. DELI' 'ijit appealed to thi ■ >n this trial thei ''" plaintiffs- * intiff's . plaintiti parnier being v. sixty C'. self it V UFifl'^r Avi- I trial de hat Stein Stein ar- ' informed his clerk. The clerk one, were in .) the store of .yment of the '=; done, one lor sale in ju'l the same returned, and n sold was is were to le tobacco . the store ; iied away lerk. The ' them to ale by (iavs ■e by jnrl St I !.'.' uc aouni. he box which for this; and ^N value ; and n injured •r to him a greater adversely I. insisted • i:>eing f.'u ■e goods V .- was as to tl ■ 1. nn the api the ag ..lus court. hich were oted, and ., that the not make ' ''■ clerk. on by ■ruled th.'. ' • ■ ; nerely . V their AUTHORITY. I7I clerk. This is said upon the principle, that an agency being a dele- gated authority, it cannot be executed by a sub-agent ; which is ex- pressed in the maxim, Delegata potcstas non potest delegari. But this maxim seems to refer to those agencies which involve the exe- cution 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, p. 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 principal, and the contract is at- tempted 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 acts 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 sustain such relations as principal and agent. It has been repeatedly settled by this court that an ad- ministrator 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 v. Mobley, 47 Ala. 507; 12 Ala. 298; 5 Port. 64. Here the sale was made by the factor's 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.^ * * * The judgment of the court below is afifirmed.- ^ A portion of the opinion is omitted. " "The principle, that an agent cannot delegate his authority, is founded upon the special trust and confidence reposed by the principal in the personal skill and integrity of the agent. The agent, therefore, has no authority to turn his principal over to another, of whom he knows nothing, but remains re- sponsible to his principal in all such cases of sub-agency. But it by no means follows that third persons, who deal with sub-agents, knowing the agency, are to be absolved from acts or contracts made by such agents in the name of the principal. We have just seen that, while the original agent is liable to his principal for the acts or misconduct of sub-agents employed without the authority of the principal, the principal is liable to third persons. As third persons, therefore, treat with the sub-agent, under the law, as with one having full authority, they have no right, as against such principal, to set up that the sub-agent is without authority to act for the benefit of the principal." Harris, J., in Mayer v. McLure, 36 IMiss. 389, 403. 172 DELEGATION. Section 2. — What Authority can be Delegated. McKINNON AND OTHERS V. VOLLMAR and another. 1889. Supreme Court of Wisconsin. 75 Wis. 82. Lyon, J.— ^ * * * 'pj^g jyj.y ^j^^ ^^^ f^^^ ^j^^^ Siebert was the agent of defendants to sell their land, but the undisputed evidence establishes the fact that he was. The jury found that Siebert em- ployed Greeves to show Derfus the land. Was Greeves the agent of the defendants? The answer depends upon the question of Siebert's authority to employ a sub-agent for that purpose. The rule is that an agent in whom is reposed some trust or con- fidence in the performance of his agency, or who is required to exer- cise therein discretion or judgment, has no authority to intrust the performance of those duties to another, and thus bind the principal for the acts of the latter, without the consent of his principal. Nu- merous cases illustrating this rule will be found cited in i Am. & Eng. Ency. of Law 368, note 4. On the other hand, an agent may appoint a sub-agent to do acts in the course of the agency which do not call for the exercise of judgment or discretion, but which are purely executive or ministerial, and the principal is bound by the acts of such sub-agent. Renwick v. Bancroft, 56 Iowa 527 ; Lyon V. Jerome, 26 Wend. 485 ; 37 Am. Dec. 271 ; Ewell's Evans on Agency *43, and cases there cited. In this case the showing of the land to Derfus was a mere execu- tive or ministerial act, requiring no exercise of judgment or discre- tion, and it was therefore entirely competent for Siebert to employ Greeves to perform it. It may be observed here that the defendants knew that Greeves had been selected by Siebert to show Derfus the land, and made no objection thereto. Indeed, it seemed to be a very proper appointment, for Greeves had been upon the land, and esti- mated the timber thereon, and of course knew the location thereof, while it does not appear that Siebert ever saw the land. For the above reasons it must be held that Greeves was the agent of the defendants for the purpose of showing the lands to Derfus, and the defendants are responsible for the manner in which he performed the duties of such agency. Greeves did not in person point out the land to Derfus, but he did so just as effectually as though he had gone upon the land in per- son and told Derfus that it was the defendant's land, for the pur- chase of which he was negotiating. He told Kirwin what particular tract of land he was to show Derfus, and Kirwin showed him such tract as he was directed to do. Thus Kirwin was the mere instrument of Greeves, and his act in thus pointing out the land was, in sub- ^A portion of the opinion is omitted. AUTHC«ITV. ^ -Q-orit of the defend- no question in the : r Kir win ..c agent of the defenda... . 'id. Liter- orders of Greeves, as he did, "e the acts agent who, because of the trr.- :. : ^ :r?e re- his principal, cannot bind his pv >■■■ acts employ another to <' :y, and if such other > - 1. 0, not because the person pei . -r \hf ?.-! ■-. i'^c net of his age:.. .... i j.n'i,i Mil- i'jic^.'M;., >. .cvvs that thc Hr*--"-'-- ;Ct of their agent in thus showing Deri Through the instrumentahty oi ivuv. .1 . i FRCIAL BANK OF LAKE ERIE v. NORTON. v-LuiTArn- r.-.j-^n- .,r. New York. I Hill 501 iiod at thc nit, before '' The plaint 't to recover :> drawn by . Joice & Co., on E. iNorton & ■^u'l'-.'^u- ,v ' ■ ;ii ^'v! > r^;l^•^ n'fter date. Tht" •11 and Simec ptance on each of the bills was in this form : "E. Norton -V. G. Cochrane," . the latter being then largely md a testified on the trial that he dir. ;f ,,n 1r- ihr-. m 1 >. i ,11 'FlrlrT',' zt to oe . jto do it perfonri ..a by the r TV 70 MciviNNO- V'ULLA ^>THER. 1889. ?2. Lyon, ].-r- :hat Siebert was the ■:::'"" '• '"' "^ _ 'in disputed evidence iad that Siebert em- '■'^ves the agent of tion of Siebert's \e trust or con- oquired to exer- • •.ity to intrust the :s bind the principal i his principal. Nu- I cited in i Am. & 1. an agent may 'gency which do lion, but which are ., .... ^i..:.ip^l is bound by the V. Bancroft, 56 Iowa 527; Lyon • \' - — ' • ^-^.yell's EvanK c- ^ was a mere execu " judginent or discre- .petent for vSiebert to employ ved here that the defendants Siebert to show Derfus the 'ndeed,^ it seemed to be a very oeen upon the land, and esti- >e knew the location thereof, ever 'jad he •ei:.c ' Lordship said: 'Tt is true an attorney api : his authority to a third person. He ; ri ent on the principal subject for the ■ v\: d; but as to any mere ministerial act, it is uoi ::ould do it in person, if he direct it to be done knowledge of it adopt it. Suppose, for instance, he '-.. 1 in his hands, and could not actually sign himself, li- ithorized another to sign for him.^ * * *2 ?\' \ ■ ;. denied. opctiH'; rower to Delegate Impucu jioin Circumstances. PRES: DIRECTORS AND COMPANY OF THE ■JN BA'K'^' '■ ~\f' '"TT \ T> ix^^ .xT,^ r-.TT, ■,-,..- .c.ME Judicial Court gi^ xMASSACHUsiiixs. 1 tract to recover $370.42, received by the defendants use. elow Bigelow, J., the plaintiffs, to prove their case, , who testified that he had been an f 11 be- id Lowell for eleven years, and that vhole ometinK' "1 7, 185 d for the de- , lership ,3 in ■ s of J. C. Hildreth & Co., a part^i busi- .^, ..V...., for $370.42 each, t'h'^ ■'"•:• '^•■■'■^ '■ ■ ' ■■'•- :;--,; .,f ih/-- . -■ ■ .-mitted. Ins. Co., 60 Mo. 116. 7=; X. Y. e.i7. it was ?:iid Da; t'u ^^:^:■ •-...- t;-4 bills, the orton & ■^ ilenn ' • ..a ii': \va? the gen- ;t of E. itierwise, they not in- in the 1 '=itly elsewhere; that, knowl- ' the habit of drawing lakinfT ' t them; though, by the Ktl.-I^.; i'" N'nrifin and Fox, his a iionsnic lijum the ground ut authority ; but the circuit u ; ;ts' counsel excepted. He : ,, r !' ances were without con- •;.. ; circuit judge ruled the contrary; v.v. :, : : . •.^r^'t^<■^• Verdict for the plain- ;;ijfs rial on a bill of ex- Ci riat ther flkient evidence whether iicury Norton had au- he could not delegate the power to :• did he do so. The bills came for acci ^ade up his mind that they should be u -, the bookkeeper, to do the me- across the bills. He was the mere • trust which is in its nature per- ;• instance, to accept what bills he '.e, his act would have been void TO deny that the general agent of rpenter to make a box or a cooper 1 the question whether the delega- ihe very latest case cited by the : rov. Hat Mig. Co., 12 Mass. 237 J Cent Com., 633, 4th ed. Blore v. strictest cases I have seen. There '•■;';' ' '1. memorandum, by . ■ I. . I .iivlerson v. Barnc- it. Both were cases arising under ' es that the memorandum should 'i^ent; and I admit it is very diffi- f the sir;-""' there from that rything ms to have beett may oj some doubt, I shci! ' lined. At any rate in our . . case as widely the other w • ^ as there laid down is that authorit n the name of B may be exerci by ihf' T'lirginal note, and it is entiv bor-.v shall wrote to Lewis & Pc POWER IMPLIED FROM CIRCUMSTANCES. 175 authorizing them "to make use of his name by procuration or other- wise to draw bills on G. |& J." The clerk of Lewis & Potter drew the bill, signing thus : "By procuration of Peter Marshall, Robert Edgecumbe." The Lord Chancellor put it on the ground that the signature of the clerk would have bound Lewis & Potter, had he signed their name under the general authority which he had. We thus make very little progress one way or the other on direct English authority. Left to go on the principle of any other English case I have seen, and there are many, all we have to say is, I think, that the agent shall not delegate his discretion ; but may at least do any me- chanical act by deputy. I do not know that the language of Lord Ellenborough in Mason v. Joseph, i Smith 406, has been anywhere directly carried into an adjudication. But it sounds so much like all the cases professing to go on principle, that I can scarcely doubt its being law. His Lordship said : "It is true an attorney appointed by deed cannot delegate his authority to a third person. He must exer- cise his own judgment on the principal subject for the purpose of which he is appointed ; but as to any mere ministerial act, it is not necessary that he should do it in person, if he direct it to be done or upon a full knowledge of it adopt it. Suppose, for instance, he had got the gout in his hands, and could not actually sign himself, he might have authorized another to sign for him.^ * * * 2 New trial denied. Section 3. — Power to Delegate Implied from Circumstances. PRESIDENT, DIRECTORS AND COMPANY OF THE AP- PLETON BANK v. McGILVRAY and others. 1855. Supreme Judicial Court of Massachusetts. 4 Gray 518. Action of contract to recover $370.42, received by the defendants to the plaintiffs' use. At the trial below Bigelow, J., the plaintiffs, to prove their case, called a witness, who testified that he had been an expressman be- tween Boston and Lowell for eleven years, and that was his whole business ; that sometime previous to April 7, 1854, he received for collection from the defendants, a partnership doing business in Boston, two notes of J. C. Hildreth & Co., a partnership doing busi- ness in Lowell, for $370.42 each, the one due on the 7th and the * A portion of the opinion is omitted. 'See Grady v. American Cent. Ins. Co., 60 Mo. 116. In People v. Bank of America, 75 N. Y. 547, it was said that the state treas- urer could delegate to his clerk authority to endorse drafts drawn to the treas- urer's order in payment of taxes. 176 DELEGATION. Other on the 13th of April, and both payable to the defendants, and endorsed in blank by them ; and was directed to collect them in the ordinary way, without any directions as to protesting them, and gave his receipt therefor ; that it was sometimes his custom to collect notes by depositing them in a bank, and sometimes by calling on the par- ties personally, though he did not communicate to the defendants how he was going to collect their notes, and did not know that they knew he ever collected notes delivered him through the banks ; that before the 7th of April he deposited the notes with the plaintiffs, a bank in Lowell, for collection ; that on the 8th of April he called on the plaintiffs, and asked if the note due the day before had been paid, and was informed by a clerk of the plaintiffs that it had been, and received the amount of it from the plaintiffs ; that the plaintiffs re- ceived no compensation for collecting these notes, and he did not communicate to the plaintiffs, when he left the notes, to whom they belonged; that he took the money so paid and the same day paid it to the defendants, but did not remember telling the defendants when he paid them the money, that he collected it through the plain- tiffs or any bank ; and the defendants paid him for his services. BiGELOW, J. — The objection that this action cannot be maintained for want of privity between the parties to the suit is not sustained by the proof. The rule of law is well settled that in the absence of any authority, either express or implied, to employ a sub-agent, the trust committed to an agent is exclusively personal, and cannot be dele- gated 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 sub-agent is responsible solely to his imme- diate employer ; nor can the principal be liable for the acts of the sub-agent. 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, §§ 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 ordi- nary way," and that it was his custom to collect notes by depositing them in a bank, as well as by calling on the parties personally. The directions given by the defendants were equivalent to an authority to adopt either of the modes for collecting the note which the car- rier was in the habit of using, and well warranted the jury in finding that the plaintiffs were duly employed as the agents of the defend- ants in this particular transaction. We cannot doubt that if the car- rier 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 ,f;p'. '/ VclVli ] by the authority to en: , which is rred from the evidence/^ the verdict. IN; ■ OF KEME j UDICIAL (. .:r cause which the -lier an e^.<.iL ■■■ ■ ■> -'^d and of which he ^e -idants snould recover against the piauitiif s - ',:t,! tVie costs of court. eptance of this report, alleg^ing that •ir will. Tt .-i ihis court to CO!' cute the act n behalf of the p ... :.,.,• of siil.v,;:;" ey also objected that the report wa.^ ;n ' "o opinio '. nent or deterriiin le ;; that 't conclusive up town, appoin*r'' fn -prr- !Ct the suit, \ :ig their tru.> .■,..%e -e in contormity thereto, is > a full 170 > the defendants, and Jlect them in '' • 'T, them, and v:,; . • collect note;. V, oil the par- nicate to tiie defend ' ;d did not know that t; _ : through the banks ; that iu iiotes with the plaintiffs, r. the 8th of April he called on ' re had been paid, it had been, and the plaintiffs re- , and he did no^ 's. to whom they M same day paiil )t 1 '^ the defendant; 'trough the plain lis services- lOt be n^ . not sus ■n the absence of any ' -'lb-agent, the trust ' cannot be dele . i;l:...> of the principal, stitute. he does it at hi^ only is liable to his imme- In-. ujLOit iuf ilie acts O'' 'Au-iv ]v.v'^n \vhi':'h any ni' ,!.,..-^L nj -^- i).^.dified by >.i:- ;lar case, from which, or fron^ . Authority can be inferred. ; red the ' 'i in the ' . •t,es by depo> i.^rvni-i'illy. ^... (UthoritA -ncil the •"•, •u'y in fir i" the dejv . iatifthe. • L to hi upon ". ;efor against" the POWER IMPLIED FROM CIRCUMSTANCES. 177 plaintiffs. The privity necessary to make the parties hable to each other is created by the authority to employ a sub-agent, which is fairly to be inferred from the evidence.^ * * >i< 2 Judgment on the verdict. INHABITANTS OF BUCKLAND v. INHABITANTS OF CONWAY. 1820. Supreme Judicial Court of Massachusetts. i6 Mass. 396. This was a pauper cause pending in Franklin county, in which the question was whether an estate in Conway, which had been owned by the pauper, and of which he had taken the rents and profits three years successively, was of the clear yearly income of three pounds ; so that he had thereby acquired a settlement in Conway. The action was, at the May term, 18 19, submitted by rule of court to certain referees, who made their report at the last May term in Franklin, that the defendants should recover against the plaintiffs the costs of the reference and the costs of court. The plaintiffs opposed the acceptance of this report, alleging that the submission had been entered into without authority from them, and against their will. It appeared that the town had appointed agents to prosecute the action, without any particular instructions as to the conduct of it ; and that the agents thus appointed had employed an attorney of this court to commence and prosecute the action, by whose assent on behalf of the plaintiffs the rule of submission had been made. They also objected that the report was insufficient, in that it contained no opinion, judgment or determination upon the merits of the cause; that it was not conclusive upon the subject- matter, nor final between the parties. Parker, C. J. — The agents of a town, appointed to prosecute a suit, have general authority to conduct the suit, unless restricted by the town as to the manner of executing their trust. A vote to choose agents, and a choice in conformity thereto, is equivalent to a full power of attorney. Agents thus appointed have the power of sub- stitution or delegation, so far as to appoint attorneys and employ counsel ; who, when they have become such of record, have the same power, in relation to anything to be done in the progress of the suit, as the agents themselves. An authority to prosecute or defend a suit implies a power to refer it by rule of court, that being a legal mode of prosecuting or defending. As to the validity of the report in reference to the objection that ^ A portion of the opinion is omitted. * See Lx)omis v. Simpson, 13 Iowa 532, 535. 12 — Reinhard Cases. 178 DELEGATION. it does not adjudicate upon the subject-matter submitted to the referees, we think it sufficient, because, by necessary impHcation, it must be considered as a determination upon the question. They award that the defendant town shall recover the costs of the action. This they could not have done without having decided the point in contro- versy in their favor ; at least, the legal presumption is, that they so determined. The judgment of the court will be, that the plaintiffs take nothing by their writ, and that the defendants recover their costs : and this makes a final determination of the action, which is what was submitted to the referees.^ DORCHESTER BANK v. NEW ENGLAND BANK. 1848. Supreme Judicial Court of Massachusetts, i Cush. 177. Wilde, J- — This is an action of assumpsit; but the foundation of the plaintiff's claim is the alleged negligence of the defendants, in not collecting certain bills left with them for collection by the plaintiffs. The defendants proved that they placed these bills in the hands of the Commonwealth Bank for collection, the same being payable in the city of Washington, where the defendants had no correspond- ents. This, the plaintiff's counsel contend, the defendants had no right to do, on the ground that an agent has no right to delegate his authority to a sub-agent without the assent of his principal. This, no doubt, is generally true ; but when, from the nature of the agency, a sub-agent or sub-agents must necessarily be employed, the assent of the principal is implied. Such was the nature of the agency in the present case. It could not have been expected that the defend- ants would employ one of their own officers to proceed to Washing- ton to obtain payment of the bills. The bills undoubtedly were in- tended to be transmitted to Washington for collection, and if the defendants employed suitable sub-agents for that purpose, in good ^ See Page v. Hardin, 47 Ky. 648, regarding tlie power of the Secretary of State of Kentucky to appoint a deputy. On page 662 Marshall, C. J., said : "Indeed, by the common law, a ministerial officer might, generally, appoint a deputy, whose acts in his name were valid. It may easily be supposed that from the increased business of the office of Secretary, arising from various causes, the assistance of a deputy might become indispensable, and that even if the business did not regularly require it, there might be various casualties, which would render it necessary for the convenience of the public that the official duties of the Secretary should be occasionally performed by another for him." "An under sheriff may appoint a bailiff for the purpose of doing a particu- lar act; though he cannot appoint a deputy to do the general business of the office." Starnes, J., in McGuffie v. State, 17 Ga. 497, 508. ;iiD FRO.N 179 f 'hf sub- agents. ■, Pick. 330. ays : "It is collection, ■■' \< so re- -mt the \nd ror it pnncipje. ... .1:, j.^ ior the neglect . . lecided in Fabens v. Mercair, ■.>Lice, in delivering the opinion ol h i that when a note is deposited with a .arable at another place, the whole diu e note, in the first instance, is sea^f^n ;ble bank or other agent at th- :e same doctrine, it is well sei T promisor of a note has his residence in ^•resunled to have been intended and '" r tor for collection and the bank that ; 10 the place of the residence of the pron^ > covrt on both points is, we think, well f- ■ by a decided weight of authority. Tl ' the case of Allen v. Merchants Bank, ted m 15 Wend. 482, and which was afterwards rei ;nc of .■•i-r.irs, where the judgment of the court bel;.. .. , re- ajority of the court of errors. This reversal is opp<;*sed •" decisions of great authority, and is not, as we think, n principle. If the bank in that case acted in gocid "ng a suitable sub-agent, where the bills were payable, be no principle of justice or public policy, by which :ld be made liable for the neglect or misfeasance of the "d it is admitted, by Mr. Senator Verplanck, who states the reversal of the judgment, that the bank would not :utble, if there had been an understanding or agreement, i implied, that the bills were to be transmitted to another " :"ction. Now, we think, in that case, v such an understanding. There is n by the learned senator, in which w distinction between the neglect of th: where the bills were deposited, and that of the bank to which '■■■'" '--jismitted for collections. We think the distinction is igree, however, with the learned senator, that the de- ' , of the orform. parties is were -) some ri,i the to '! so, :iat the I in such cases is, what was the v 'he duties the collecting bank U' we have no doubt of the unc' case. That was, we think, i. lit the bills, or to cause them to be ; ,pnV nr other agent in Washington, f( : 'ther, in employing the Gor • v "'-? defendants acted in gCKja nsible for the failure of tha. r ■'- \ faith we cannot dc' ' t? in perfectly good • it adjudicate n: think it s • sidered as a :fendant tOA\ not have ' :eir fav< and thi. r-matter submitted to the ecessary implication, it (! question. They award sts of the action. This ccided the point in contro- uresumption is, that they so t will he, that the plaintiffs i.e defendants recover their 'lination of the action, which is DC 184^ th, ri'' \ND BANK. T OF Massaciiuseti's. I Cush. 177. tssumpsit: but the foundation of legligence of the defendants, in l' aciM in 'J: 1>U!S 11! lill.: !K'11U^ no do.: a sub -at;- '4 the pri the pl- an <■- >,- t ' t\ dei't': for him." "An under lar act; th( office." St.'t; r collection, the same being payable e the defendants had no correspond- ;^el contend, the. defendants had no an agent has no right to delegate out the assent of his principal. This, vhen, from the nature of the agency, necessarily be employed, the assent h was the nature of the agency in :'-.<• been expected that the defend- 1 ofificers to proceed to Washing- The bills undoubtedly were in- nigton for collection, and if the lib-agents for that purpose, in good iding the power of the Secretary of On page 662 Marshall, C. J., said : ' il ofRcer might, generally, appoint a liid. Jt may easily be supposed that c of Secretary, arising from various become indispensable, and that even it, there might be various casualties, ■ convenience of the public that the ;' occasionally performed by another ' for the purpose of doing a particu- do the general business of the Ga. 497, 508. POWER IMPLIED FROM CIRCUMSTANCES. I79 faith, they are not Uable for the neglect or default of the sub-agents. This was so decided in Fabens v. Mercantile Bank, 23 Pick. 330. The chief justice, in delivering the opinion of the court, says: "It is well settled that when a note is deposited with a bank for collection, which is payable at another place, the whole duty of the bank so re- ceiving the note, in the first instance, is seasonably to transmit the same to a suitable bank or other agent at the place of payment. And as a part of the same doctrine, it is well settled that if the acceptor of a bill or promisor of a note has his residence in another place, it shall be presumed to have been intended and understood between the depositor for collection and the bank that it was to be trans- mitted to the place of the residence of the promisor." This decision of the court on both points is, we think, well founded in principle, and supported by a decided weight of authority. The only opposing decision is in the case of Allen v. Merchants Bank, which was first reported in 15 Wend. 482, and which was afterwards removed to the court of errors, where the judgment of the court below was re- versed by a majority of the court of errors. This reversal is opposed to a number of decisions of great authority, and is not, as we think, well founded in principle. If the bank in that case acted in good faith, in selecting a suitable sub-agent, where the bills were payable, there seems to be no principle of justice or public policy, by which the bank should be made liable for the neglect or misfeasance of the sub-agent. And it is admitted, by Mr. Senator Verplanck, who states the grounds of the reversal of the judgment, that the bank would not have been liable, if there had been an understanding or agreement, express or implied, that the bills were to be transmitted to another bank for collection. Now, we think, in that case, as in this, there was manifestly such an understanding. There is another view of that case, taken by the learned senator, in which we cannot concur. He makes no distinction between the neglect of the officers of the bank where the bills were deposited, and that of the bank to which they were transmitted for collections. We think the distinction is obvious. We agree, however, with the learned senator, that the de- cisive question in such cases is, what was the understanding of the parties, as to the duties the collecting bank undertook to perform. And as to this we have no doubt of the understanding of the parties in the present case. That was, we think, that the defendants were to transmit the bills, or to cause them to be transmitted, to some suitable bank or other agent in Washington, for collection ; and the questions are, whether, in employing the Commonwealth Bank to transmit the bills, the defendants acted in good faith ; and if so, whether they are responsible for the failure of that bank. That the defendants acted in good faith we cannot doubt. The Common- wealth Bank at the time was in perfectly good credit, and had great facilities for obtaining payment of bills and notes payable in distant states. The defendants were the plaintififs' general agents, and they l8o DELEGATION. had no instructions ; they were, therefore, to exercise their best judgment as to the transmission of the bills, and the remittance of the money when collected. And we see no cause to doubt that they acted in good faith, and exercised a sound judgment. It was objected that the defendants ought to have made restricted endorsements ; but it is a satisfactory answer that the defendants made their endorsements in the same manner the plaintiffs did. Considering, then, that the defendants acted in good faith, and exercised a sound judgment in employing the Commonwealth Bank, we think there is no principle of law or equity which can subject them to any liability by reason of the subsequent failure of that bank. In our opinion the defendants' responsibility was limited to good faith and due discretion in the choice of an agent to transmit the bills, and to procure a remittance of the money when paid. This case is not distinguishable from the case of Fabens v. Mercantile Bank, and the cases there cited. We do not think that the proof of any usage is necessary to sup- port these decisions ; but in the present case, the usage is well proved to have been uniform, in similar cases, ever since the year 1833 or 1834, three or four years before these bills were deposited in the de- fendant bank. It was also proved that one bill had been transmitted in like man- ner, by the defendants, for the plaintiffs, and returned to them with protest, and without objection by them. This was in 1836, more than a year before the bills in this case were deposited. This would be sufficient notice of the usage or manner in which the defendant transacted such business, if any such notice were required. It seems, however, that the usage of a bank is binding on all persons dealing with the bank, whether they know of the usage or not: Lincoln and Kennebeck Bank v. Page, 9 Mass. 155 ; Bank of Wash- ington V. Triplett, i Pet. 25. That is a point, however, not necessary to be decided in this case. Plaintiffs' nonsuit.^ ^Accord: East-Haddam Bank v. Scovil, 12 Conn. 302; Merchants' National Bank v. Goodman, 109 Pa. St. 422. Contra: Corn Exchange Bank v. Farmers' Nat. Bank, 118 N. Y. 443; Da- vey V. Jones, 42 N. J. L. 28. See collection and discussion of authorities in Simpson v. Waldby, 63 Mich. 439, 447-450. See Ames' Cases on Trusts, 17. CHAPTiiR Vii. LIABILITY OF PRINCIPAL TO THIRD -Contracts. SUTTON V. TATHAM. y^. Uw'.i.^i wi v^> .3 Bench, id A. ^- ■ for the work and labor, etc., of plalntilrs !x- m as the brokers and agents of and for 6 on lest, and for commission and reward due Ts in respect thereof. Counts for money m account stated. Plea, non-assumpsit. On the trial Oenman, C. ]., at the sittings in London after last iie following facts appeared; The defendant had em- ■ntiffs as brokers and had dealings with them in stock . three or four years. On May 28, 1838, he gave di- i plaintiffs to sell for him 250 shares in the South >mpany. They accordingly, on May 29th, sold 109 ) Wells, a broker, and advised defendant thereof by lay; and on May 30th they sold Wells ion •^■t,^- -•: ' same day the defendant came to the plai^ said that there had been a mistake r • to sell fifty shares. He, in fact, had intiflfs. On the following day one .. had an interview with the def' iince, the latter said "ha had got uvi<_> a uiiijcuit>. it was an unfortunate mistake." Defendant asked if jld not be made void? Sutton said "No." Defendant ^.c must leave the matter in their h- ' * do the best ;d." Plaintiffs, on the 31st, applied t-: > cancel the ' ' Ti of the mistake, but h ■■ it : exchange is governed h nt- and one of them is, that \-cr •^1 his contract the pu' in make u^ iency, and charge tli ith y differed '-v The reception of . , .cnce ted to, but ion overruled. ' broker t8c DF.LFr VTTON. judgment as to the tran; mc" ' ilected. in ^d ^xer< th- : mannc Ill our C; faith and < bills, and to pre is not distingiii and the cases tV \^ : .. po I": P' th; b<: ti seems, J.ov.ever, lii- dealing with the 1 Lincoln and Kennel :nc-\iiu \ Triplett, i d in this .!iiu:>' nonsuit. ..■ v.'.CLv....e their best '(j the remittance of the o doubt that they acted :i . It was objected that ■ cted endorsements; but it ts made their endorsements a. Considering, then, that the exercised a sound judgment in . we think there is no principle hem to any liability by reason )onsib:lity was limited to good > e of -'r np^ent to transmit the jt the r. en paid. This case '.-.c rJ. y Mercantile Bank, ... cL.v ..,,^c>.,K,. .- i.^cessary to sup- resent case, the usage is well proved • cases, ever since the year 1833 or these bills were deposited in the de- I had been transmitted in like mar- 'aintiffs, and returned to them with jy them. This was in 1836, more as case were deposited. This would or manner in which the defendant ' y such notice were required. It yi a bank is binding on all persons I they know of the usage or not : : V. Page, 9 Mass. 155; Bank of Wash- Tli.'it 1~ :-i rsT.irjL, ho\vt:ver. I'.ot necessarv - - 1< V. Scovil, 12 Conn, 302; Merchants' National 22. ' . -. V. Farmers' Nat. Bank, n8 N. Y. 443; Da- ion of authorities in Simpson v. Waldby, 63 Midi CHAPTER VII. LIABILITY OF PRINCIPAL TO THIRD PERSONS. Section 1. — Contracts. SUTTON V. TATHAM. '; 1839. Court of Queen's Bench. 10 A. & E. 27. Assumpsit for the work and labor, etc., of plaintiffs done and be- stowed by them as the brokers and agents of and for defendant on his retainer and at his request, and for commission and reward due from defendant to plaintiffs in respect thereof. Counts for money paid, and on an account stated. Plea, non-assumpsit. On the trial before Lord Denman, C. J., at the sittings in London after last Hilary term, the following facts appeared: The defendant had em- ployed the plaintiffs as brokers and had dealings with them in stock and shares for three or four years. On May 28, 1838, he gave di- rections to the plaintiffs to sell for him 250 shares in the South Australian Company. They accordingly, on May 29th, sold 109 such shares to Wells, a broker, and advised defendant thereof by letter of that day; and on May 30th they sold Wells 100 more such shares. On the same day the defendant came to the plaintiffs' count- ing-house and said that there had been a mistake and that he had intended only to sell fifty shares. He, in fact, had not the number sold by the plaintiffs. On the following day one of the plaintiffs, Mr. Robert Sutton, had an interview with the defendant when, as was stated in evidence, the latter said "he had got into a difficulty." Sutton said, "it was an unfortunate mistake." Defendant asked if the bargain could not be made void ? Sutton said "No." Defendant then said "he must leave the matter in their hands to do the best they could." Plaintiffs, on the 31st, applied to Wells to cancel the bargain, informing him of the mistake, but he declined, saying it was too late. The stock exchange is governed by rules of a commit- tee which are in print, and one of them is, that if the selling broker is not prepared to fulfil his contract the purchaser may buy in shares to make up the deficiency, and charge the selling broker with any loss by difference of price. The reception of this rule in evidence was objected to, but the objection overruled. If the selling broker 181 l82 LIABILITY TO THIRD PERSONS. refuses to make up the difference he is liable to be expelled from the stock exchange. According to the usage no principal is named by the broker on either side. The plaintiffs being unable to complete their contract, Wells bought in shares, according to the rule, on the best terms in his power, and there being a loss on the transaction, the plaintiffs repaid this, and broker's commission for the purchase, to Wells, on his demand. The present action was brought to recover this amount, and the plaintiffs' brokerage on the sale of the shares to Wells. Sir F. Pollock, for the defendant, cited Child v. Morley, 8 T. R. 6io, as shewing that a broker having voluntarily made a pay- ment in obedience to the rules of the stock exchange, could not hold his principal, a stranger to those rules, responsible for the amount. Lord Denman, C. J., thought that in this case the princi- pal was answerable, but as to the loss on the second purchase, he left it to the jury to say whether the bargain for that purchase was made within a reasonable time after the mistake was discovered ; intimat- ing his own opinion that the plaintiffs were only entitled to recover the commission, inasmuch as they did not appear to have done the best in their power for the defendant as to the repurchase. Verdict for the plaintiffs for 52/ 5^-., the amount of the two commissions. Sir F. Pollock now moved for a new trial on the ground of mis- direction. The defendant must lose the commission on the sale to Wells, that sale having been the result of his own mistake. But the plaintiffs are not entitled to commission on the repurchase, if by greater diligence, they could have procured the sale to be cancelled ; and at all events they might have left the defendant, who was not amenable to the rules of the stock exchange, to adjust it for himself. If they have thought proper to comply with those rules, by which no principals are known, and brokers who have contracted to sell must, under certain penalties deliver the amount contracted for, the defendant, who is not cognizant of the rules, ought not to bear the consequences of such compliance. The language of the judges, par- ticularly that of Lawrence, J., in Child v. Morley, is strongly in the defendant's favor. (Lord Denman, C. J. I think a person employ- ing one who is notoriously a broker must be taken to authorize his acting in obedience to the ndes of the stock exchange. Patterson, J. Did the defendant desire to have the purchaser's name given to him? Lord Denman, C. J., stated the evidence on this point, as above.) LiTTLEDALE, J. C. — A pcrson who employs a broker must be sup- posed to give him authority to act as other brokers do. It does not matter whether or not he himself is acquainted with the rules by which brokers are governed. Patteson and Coleridge, Js., concurred. Per Curiam. Rule refused.^ ^ "If there is a general usage, applicable to a particular profession, parties I- war- 's- p.ud :li Starr was appointed. n. r,.,wiants allege (■'■■■'■ * The ne . .by Leivuy confer upon ,'d with ^ arranty '• ''- ■'• i:i fhe £l..>. . , after ■nd territorir , at the for the . i real e 'ins in all r .-,- IS." Again L ite "deeds ot conveyance necessary for the full }• of all our --'•—■■-■ -dit, title," etc "'• -ni- cts. as we ; 'd do persoi le : and ai rdl resp- •n!?'tia.7e rtrone.--; ;o ueai >■ itself, or a ; for a oart" • ; from the led by the 'able to complete their o the rule, on the best m the transaction, the ■n for the purchase, t-^ .as brought to recov^ uv. the sale of the shar< mt. cit«='d Child v. Morkv Y made a pa; ge, could n< ' id his pi- !Ose rules, responsible for tl ,,Mf. T ..' viie }v '!,se the prirft ; rchase, he le ■ " was mao within a re ; mtima •jicv hi J :.ccl to recov ■':■ ;v fiave done tl. hase. Verdu riunissions. ■'d of mi u '.it I he sale > : mistake. But ti. , wlio was ii! it for himsel i V with those rules, by which no >,iw. n-x,- .v>.,tracted to sell acted for, the i; Tiif rv'ics, i"i,:^iiL not to bear th' The bno-nafre of the judges, pa ' , is strongly in the I a person employ- must be taken to authorize his ,: >i(v1c c\,-\y)':\'k\ Patterson, J. :lf is ac ^iven to him? iS above.) . r must be su; ' \ It does not ' the rules by concurred. ofession. part'. CONTRACTS. 183 LeROY V. BEARD. 1850. Supreme Court of the United States. 8 How. 451. Action by Beard against LeRoy and wife on a covenant of war- ranty contained in a deed made by their agent Starr. LeRoy and wife denied Starr's authority to make a covenant of warranty for them, there being no express authority to do so in the letter of at- torney by which Starr was appointed. Verdict and judgment for plaintifif below. Defendants allege error. ^ Woodbury, J. — - * * * The next instruction to which the orig- inal defendant objected, and which is the chief and most difficult one that can properly be considered 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 discre- tion 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 authorized to execute "deeds of conveyance necessary for the full and perfect transfer of all our respective right, title," etc., "as suffi- ciently in all respects as we ourselves could do personally in the premises," "and generally as the agent and attorney of the said Jacob LeRoy" 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 justify the making of covenants without specifying them eo nomine. When 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 country on such sub- jects, the acts of the parties themselves, and any other circumstance having a legal bearing and throwing light upon the question. * * * employing an individual are supposed to deal with him according to the usage." Best, C. J., in Sewall v. Corp, i C. & P. 392, 393. "A general custom is the common law itself, or a part of it. * * * It would seem, however, that upon principle, for a party to be bound by a local usage, or a usage of a particular trade or profession, he must be shown to have knowledge or notice of its existence." Folger, J., in Walls v. Bailey, 49 N. Y. 464, 471, 473. See particularly Day v. Holmes, 103 Mass. 306. ' The reporter's statement of facts is condensed. 184 LIABILITY TO THIRD PERSONS. The usages of this country are beheved, also, to be very uniform to insert covenants in deeds. In the case of the Lessee of Clarke v. Courtney, 5 Peters (U. S.) 349, Justice Story says : "This is the com- mon 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 ex- tensive 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 em- ployed 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 T. R. 757 ; Helyear v. Hawke, 5 Es. Ca. ^^2, note; Pickering v. Busk, 15 East 45, 2 Camp N. P. 555, 6 Hill (N. Y.) 338,4 T.R. 177- So of some cases which relate to the quality and not to the title of property. Andrews v. 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 intending to confer all the usual means or sanction, the usual manner of performing what is intrusted to the agent. 10 Wend. (N. Y.) 218; Howard v. Baillie, 2 H. Bl. 618; Story on Agency, p. 58 ; Dawson v. Lawly, 5 Es. Ca. 65 ; Ekins v. Maclish, Ambler, 186, Salk. 283; Jeffrey v. Bigelow, 13 Wend. (N. Y.) 527, 28 Am. Dec. 476, 6 Cowen (N. Y.) 359. Nor is the power confined merely to "usual modes and means," but, whether the agency be spe- cial or general, the attorney may use appropriate modes and reason- able 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 v. Hopkins, i J. J. Marsh (Ky.) 287, 19 Am. Dec. 92; Sandford v. Handy, 23 Wend. (N, Y.) 268. We have already shown that, under all the circumstances, a covenant of war- rantv here was not only usual, but appropriate and reason- able.'- * * * The judgment below is affirmed.^ ^A portion of the opinion is omitted. ^ Regarding the custom to warrant machinery see McCormick v. Kelly, 28 Minn. 135. LORD V. I 'ouRT OF Common P; he fir?t count of the declarr ;hat the u', 1844, : rit- .0 l5J\ t' >rth i date t red .,;> J...,:^...,.. . ■'^ and ci.cv^ jw. • ' 1 r- - le same to t] 2, 1 , cnat the said 1 1- . et forma • wher: J., at Ine i. ^ /eared that o lent maker; that his wife was in ...., and, ai'""'^-' '^-her things, dra\ bills in his 7. : that the note in ' orth's da-ji;;;ar, in his name, in tijc pre: - 'f her mother, and that it was thf'n d<^1iv- ; T. i it was insisted that the : i lor the defendant ; for, that the mother :,ate to her daughrri ih^ -.i;-^ .-;,-.- ♦., «.-,_ e.iUled the objection, -uhj 'nrrx si los., the amount of the note '>ndant tr • court :d. ed a rule tiisi, agair. .. Shuttleworth's bnsint. she was in the habit of ■f ahum faa delegated aun.. lental cause, wer. .ter ilic a: LIAHILITY T<; re-, of lliis coun i.y LO bCi- more t'.- ■ V. that, from .r-( ,>,cr aiT'.l'i^v to th^ 5 E^; ■ to be very uniform he Lessee of Clarke v. says : "This is the pom- ; "covenants of title are 8. . Now, if in this ved beyond giving • more ex- ig-ly sustain s oiherwise, a warranty by . ng on the principal, relate to personal estate, and '—• ■■■'-■> have been long em- authority by parol, he decisive by ar V. Hawke, 2 Camp N. P. ■. Q Whe , i86. ,hh -: was 1! ie quail t to the title of lumg, ana v-oi >n. it still must tu d;c ■' .'IS or sanction, it i? it), ^ the agent. lo h. Bi. 6i8; Story on . . , ... 65; Ekins V. Maclish, igelow, 13 Wend. (N. Y.) 527, 359. Nor is the power confined but, whether the agency be spe- 'es and reason- his authority. . ; 345 ; Beii on Com. L. 410 ; 2 "s/i J. J. Marsh (Kv.)* 287, 19 Wend (N. Y.) 268. We have cumstances, a covenant of war- but appropriate and reason- nuciui!f.Tv ;;.ee Aiccormicic v. iveiiv, 2? CONTRACTS. I85 LORD V. HALL. 1849. Court of Common Pleas. 8 C. B. 627. Assumpsit. The first count of the declaration alleged that the defendant, on the 3d of May, 1844, made his promissory note in writ- ing, and thereby promised to pay to the order of Joseph Shuttleworth the sum of £251, three months after the date thereof, and delivered the same to the said Joseph Shuttleworth, and that Joseph Shuttle- worth endorsed the same to the plaintiff, etc. Second plea, that the said Joseph Shuttleworth did not endorse the note modo et forma; whereupon the issue was joined. The cause was tried before V. Williams, J., at the first sitting at Westminster, in Trinity term last. It appeared that Shuttleworth was a mathematical instrument maker ; that his wife was in the habit of managing all his affairs, and, amongst other things, drawing, ac- cepting, and endorsing bills in his name, and that the note in question was endorsed by Shuttleworth's daughter, in his name, in the pres- ence and by the direction of her mother, and that it was then deliv- ered by the latter to the plaintiff. On the part of the defendant it was insisted that the issue on the endorsement must be found for the defendant ; for, that the mother had no right thus to delegate to her daughter the authority to en- dorse. The learned judge overruled the objection, and directed a verdict for the plaintiff for £31 los., the amount of the note and interest, reserving leave to the defendant to move to enter a verdict for him on the second issue, if the court should think the endorsement by Shuttleworth was not well proved. Humfrey accordingly obtained a rule nisi, against which White- hurst now showed cause. It appeared at the trial that Shuttleworth's business was generally managed by his wife ; that she was in the habit of drawing, accept- ing, and endorsing bills and notes in his name ; and that she, having previously by the hand of her daughter endorsed the note in ques- tion, delivered it to the plaintiff. The endorsement by the daughter by the direction and in the presence of her mother, was clearly the act of the latter. Qui facit per alimn facit per se. This is not, as suggested, a delegation of a delegated authority. Suppose Mrs. Shuttleworth, from some accidental cause, were rendered unable to make the endorsement with her own hand, could it be said that she was precluded from using the hand of another person for that pur- pose? A recognition of an act of an agent binds the principal. Where a man hands over a bill or note, with his acceptance or en- dorsement upon it, he is estopped from afterwards saying that the acceptance or endorsement is not his ; and here Shuttleworth would l86 LIABILITY TO THIRD PERSONS. be estopped from denying his endorsement, by the act of his acknowl- edged agent in deHvering over the note, endorsed, to the plaintiff. Humfrey, in support of his rule : The note is handed over by Mrs. Shuttleworth to the plaintiff, with an unauthorized, a forged, endorsement by the daughter. How can the defendant be estopped, by something done to the note after it had passed out of his hands, from denying that the endorsement was the endorsement of Shuttleworth ? (Maule, J. — Shuttleworth was estopped; he has done something which amounts to an order. If the endorsement by the daughter was made under the authority of the father, it is no forgery. The substantial right of the defendant is, to be secure that he pays the right person. The question is whether this was not really the act of the wife.) If the wife might lawfully delegate her authority to the daughter in this way, what is there to prevent the daughter delegating it in her turn to another? (Maule, J. — It is conceded that one having an authority of this sort cannot delegate it.) In Toms v. Cuming (i), this court held that a notice of objection under the registration act, 6 & 7 Vict., c. 18, § 17, must be signed by the hand of the party objecting. (Maule, J. — Nobody denies the power of the legislature to require a signature by the hand of the party. If the authority given to the wife here was to endorse by all means which would make the en- dorsement enure as an endorsement by her, this clearly would be an execution by her of that authority, and no delegation.) To hold that the wife could, by any other hand than her own, exercise the authority confided to her by her husband, would be to lay down a doctrine which will be very embarrassing to commercial transactions. Maule, J. — It seems to have been put at the trial, as a question of law, whether the rule, delegatus non potest delegare, applied, so as to entitle the defendant to a verdict upon the second issue. It seems to me, however, that this w^as far from being a correct view of the matter : the maxim has no application at all here. The question is, whether, upon the evidence, the wife was not acting in the strict exercise of the authority conferred upon her by her husband in doing what she did, viz. : in requesting a third person to do it in her pres- ence. There was evidence that the wife had the general management of her husband's business. And when he authorized her to draw, accept and endorse bills in his name, that may fairly be extended to authorizing her to select some person, pro hac vice, to wTite the name of her husband for her. It may be that this will lead to some incon- venience. But, her husband having trusted her to exercise her discretion as to drawing, accepting and endorsing, may be assumed to trust her also to use her discretion to select the hand of another OI -on e couia be very ]■■ he ..^ .0.. I, the'-rf-rf- 5e find a case be \ to draw bills in the .i A. The ^ i deuce ; ■•, Maui'' ;es seem .-. , it was clear!; n f'jr ci.v _ iher or not rii'. iven by the to the wife t^* •repared : if I had '.iry. ^i t be urged to intiuence a decision eittie: ,ay. Til! .■ 'ig at iu ordered .-eit-'ir ■ •_. the r;!:,: ated for the ,e ui deliv • plaintiff. tVie Dlainti^;' denying ihat the endorsemer. s done somethiiiL by the daughtt no forgery. Th. that he pays tlv t really the act C' •• in th(> (l.'niol-, t." T an authority of th' objectic: be signt 3 legislature to requi) authority given to tl 1 would make the eii : iiaiu.i ti'ian her ow' ■v.-s'nnd, would be i TO commerci;. -lie. It riect view oi U. The question ; : in the band in ■ 't in her 1 manag her to ;y ne exteni! , to write tbr ad to Sf •' ;• to ex^ sing, may be as- t i1u' haiin of ?. CONTRACTS. 1 87 to carry her intention into effect. I think, and I believe the rest of the court agree with me, that there was evidence for the jury upon this issue ; and there could be very little doubt as to the conclusion the jury would come to. I, therefore, think the verdict ought not to be disturbed. I find a case of Ex Parte Sutton (i), which may be worth considering in reference to this subject. It was there held that an authority given to A to draw bills in the name of B may be exer- cised by the clerks of A. The way in which that case seems to me to apply to the present is this, the lord chancellor treats the extent of the authority as a matter of fact, to be inferred from the evidence ; and that confirms the view we have taken upon this occasion. Cresswell, J. — I agree with my brother, Maule, that this rule ought not to be made absolute. Both parties seem to have treated the question at the trial as one of law. That was clearly a mistake. It was purely a question for the jury, whether or not the evidence showed an authority given by the husband to the wife to endorse in the way which was adopted here. I am not prepared to say what verdict I should have been disposed to concur in if I had been on the jury. Many reasons might be urged to influence a decision either way. The authority of an agent ought not to be unduly extended. The rest of the court concurring. Rule discharsred. HAZELTINE v. MILLER. 1857. Supreme Judicial Court of Maine. 44 Me. 177. This is an action of assumpsit upon an agreement signed "Wm. R. Miller, agent," and was defended upon the ground that he had no authority to bind the defendant by an agreement for such purposes as are embraced therein. Cutting, J., presiding at nisi prius, ordered a nonsuit, to which, and to the rejection of certain evidence, the plaintiff excepted. The facts most favorably stated for the plaintiff are just these: The defendant owned certain mills and land connected therewith, in the town of Rowland. William R. ]\Iiller had rented the mills and sold stumpage from the land. Now did that authorize William R. to make a contract for the defendant, to have lumber cut and hauled, and on other land ? He never had even made such a contract on the mill land. He had sold, but never bought. The question is not whether there is evidence tending to show, but is the plaintiff's testimony sufficient to authorize a verdict ? There is not even testimony, taken by itself, tending to show an authority. If there is, there will be too much danger for one man even to employ another. The key to this case does not appear, as the defense was not l88 LIABILITY TO THIRD PERSONS. reached, but it may be stated as a supposition, and will test the plain- tiff's pretension. There is not a particle of testimony in this case showing any au- thority in William R. Miller to bind the defendant to pay money — to make contracts to pay money — to assume responsibilities. Such an inference of a general agency would be destructive of all business delegation of authority. There is no evidence of a general agency. It is not every act of employment which renders a party an agent. A clerk with authority to sell goods has no authority to buy goods, and give his employer's note. Nor does an authority in this case, to rent mills and rent lands, authorize William R. ]\Iiller to make a contract foreign to renting mills and lands. Here was a mere limited authority for certain definite purposes. For appropriate illustrations, see cases of Webber v. Williams Col- lege, 23 Pick. R. 302 ; Nash v. Drew, 5 Cush. R. 424 ; Tabor v. Can- non, 8 Met. R. 456 ; Calef v. Foster, 32 Maine R. 92. The testimony was rightly rejected. The plaintiff could call Wil- liam R. Miller as a witness. Rice, J. — No rule of law is better established, or more universally recognized, than that the authority of an agent, to act for, and bind, his principal, will be implied from the fact that such agent has been accustomed to perform acts of the same general character for that principal, with his knowledge and assent. Nor is it necessary, in order to constitute a general agent, that he should have done before an act the same in specie with that in question. If he have usually done things of the same general character and efifect, with the assent of his principal, that is enough. Thus it was held in Bank of Lake Erie v. Norton, i Hill R. 502, where, by articles of co-partnership, one Norton was created agent of a firm, but his authority, as thereby de- fined, did not extend to accommodation acceptances. It was proved, however, that he was the general agent of the firm, and with their knowledge and assent, was in. the habit of drawing bills and making notes and endorsements for them ; though the specific act of accept- ance was not mentioned in the evidence, as one that had been usually done, the court decided that his general power, and the usage of put- ting the firm name to commercial paper, in all other shapes, was the same thing, in substance, and calculated to raise an inference in the public mind that he had such a power. But the acts from which authority to do a specific act can be im- plied must be of the same general character and effect. Thus it was held in Tabor v. Cannon, 8 Met. R. 456, that an agent who is em- ployed by the owners of a whale ship, to fit her for sea and purchase the necessary supplies for her voyage, cannot bind the owners by making a negotiable note, or accepting a negotiable bill of exchange in their names, as agent, in payment for such supplies. The court, in their opinion, remark, there is good reason for this distinction. In , liable to no on-" actual .>n may be inquiv' 'ill the ,; the sale may be shown ; an ments sted; all which would be prei -■ ^r- '' by the endorser on an accept ::is Colleg-e, 2^ Pick. T - a cnden, of Portland, .': i- for the defendants, ;;e .Rowing out of some i. d ome controversy, Mr. Ft . -..I. Ingersoll one .>'■ 'wo hui... flf a large high\\ - iStead o: Jen gave the notu .n suii;. - The c>..-i' vithout authority and was not binding ';- ity to an agent to collect debts, and to v- ' authorize him to bind his princip ■:h an authority must be expressly o from the nature of the business to be done. ^ Wend. R. 496. He evidence shows satisfactorily that W. R. t tor the defendant. That in that capacity he at the mouth of the Piscataquis ; that he paid the ' ty; that he gave permits for cutting • ■ : iS in Howland and Edinburgh, and herefor; that he settled and received pay for .'' 'plant's land without authority. Then' -a-i - K:casion he gave a note to the t' r Hi,e defendant. There is no evid - 'thority to give that note, or that ' n:s existence till long ?d it as a valid note :. miction between autb .1 agent to ' ; to permit parties 1 i :^f on his therefor; to claim ii .1 tres- .er into contracts for ■ ■-'^.cr- le principal was to , ,.y — " • : r- ■!r ,'erty; in. the oUjtr, \v._ ,1- -s enterprises whic'ti :ithority to t- .... iiw. be implied fr' .1 acts of the former ■■)e ■> the a^^v -o iuiplica- oii.njiij a.iK.1 wm test luc picUii- th.- ontrac.i- any an- iioney — Such an 'uisine^s >.vi.;i V act Oi ith authority 10 DU)- i 1 this ca (o make uthorit}- •:ee case Drew, oster, 3. ejected. ;i ioreig'n to renting' tin definite purposes, iber V. Williams Col - <. 424; Tabor v. Can- f could call Wil- better e ', or more universally ority of tct for, and bind, •cm the; ,..cli agent has been ■ the s;i al character for that and asitijt -■ it necessary, in Lyent, that h- have done before ' -it in qucoi. u. if he have usualh- ■ aracter and effect, with the assent Thus it was held in Bank of Lake : e, by articles of co-partnership, one •1, but his authority, as thereby de- lation acceptances. It was proved, agent of the firm, and with their habit of drawing bills and maV^ though the spoci^c act of ac, ", as one -• been usuall) ! power, usage of put- r, in all other shapes, was the M i<-. r ■.'<■■■ ;in inference in thr '' :''] in ri,v^edl the nec' making :: in their nam i.i IK.' a si'ivii'i act can be nn- i-acter and ciVect. Thus it wa; that an agent who is • i; her for sea and pure!. . ■i the owner- .. bill of exchai: .. en supplies. The court, in v, f t],;., 'listinction. "i"" CONTRACTS. 189 a contract of sale, the owners can be liable to no one but the actual sellers of the goods ; the consideration may be inquired into ; all the circumstances attending the sale may be shown ; and all payments and offsets may be adjusted ; all which would be precluded if an ac- tion could be maintained by the endorser on an acceptance. In Webber v. Williams College, 23 Pick. R, 302, which was on a note given by Mr. Fessenden, of Portland, as agent for the defend- ants. Mr. F. was agent for the defendants, at Portland, to manage some interests of theirs growing out of some eastern lands. To avoid an apprehended troublesome controversy, Mr. Fessenden was author- ized to advance to a Mr. Ingersoll one or two hundred dollars, to as- sist him in paying off a large highway tax. Instead of advancing the money, Mr. Fessenden gave the note in suit. The court held that the note was made without authority and was not binding on the de- fendants. A general authority to an agent to collect debts, and to pay and receive money, does not authorize him to bind his principal by nego- tiable instruments ; such an authority must be expressly conferred or reasonably implied from the nature of the business to be done. Rossiter v. Rossiter, 8 Wend. R. 496. In the case at bar, the evidence shows satisfactorily that W. R. Miller was an agent for the defendant. That in that capacity he carried on his mills, at the mouth of the Piscataquis ; that he paid the taxes on the defendant's property ; that he gave permits for cutting timber on the defendant's lands in Rowland and Edinburgh, and collected the stumpage therefor ; that he settled and received pay for lumber cut upon the defendant's land without authority. There was also evidence that on one occasion he gave a note to the town of Rowland, as the agent of the defendant. There is no evidence, how- ever, that he had any authority to give that note, or that the defend- ant had any knowledge of its existence till long after it was given, or that he has ever recognized it as a valid note against him. Now there is a wide distinction between authority in an agent to carry on mills for the owner ; to permit parties to cut timber on his lands, and collect stumpage therefor; to claim indemnity from tres- passers ; and authority to enter into contracts for carrying on lumber- ing operations, by which the principal was to be obligated to pay large sums of money. In the one case the agent would be, in differ- ent modes, collecting for his principal money arising from the use or proceeds of the sales of his property ; in the other, he would be em- barking that principal in business enterprises which might involve large pecuniary liabilities and losses. Authority to embark in enter- prises of the latter description could not be implied from an admitted agency, with authority to perform acts of the former character. As to the testimony of the witness, Muzzey, taken in connection with the letter of the defendant, it restricts rather than enlarges the authority of W. R. Miller, as the agent of the defendant. No implica- 190 LIABILITY TO THIRD PERSONS. tion of authority to enter into the contract in question can arise from that transaction. The declarations of W. R. Miller were properly rejected. There must be proof of agency before the declarations of the alleged agent are admissible in any case ; and then only such declarations as are strictly part of the res gestce. There being no proof of authority in the agent to perform the principal act, his declarations, while in the performance of that act, are, as matter of course, inadmissible. It may well be doubted whether, by the terms of the instrument it- self, any persons other than the plaintiff and William R. Miller are bound by it. But as this point was not raised in the arguments of the counsel, we express no opinion upon it. The nonsuit must stand. Exceptions overruled.^ STAR LINE OF STEAMERS v. VAN VLIET. 1880. Supreme Court of Michigan. 43 Mich. 364. Assumpsit. Defendant brings error. Graves, J. — The Star Line of Steamers is a corporation organized under Chapter 83 of the Compiled Laws, and at a meeting of the stockholders, two of their number, Messrs. Toulmin and Ketchum, were appointed a committee to employ two expert accountants to investigate the affairs, books and accounts of the company, and re- port the results. Mr. Toulmin engaged the defendant in error and agreed that his compensation should be graduated by allowing a certain sum per hour for himself and a certain other amount for an assistant. At least such seems to^ be a fair construction of the arrangement, and it is the construction which the court below put upon it. The company were aware he was prosecuting the busi- ness and made no objection, and Mr. Ketchum expressed his assent and concurrence by joining with Mr. Toulmin in a written approval and acceptance of what had been done under the employment. The company refusing to pay, the defendant in error sued and was al- lowed to recover the price promised. Errors are assigned on several exceptions to evidence, but none are considered of sufficient merit to require discussion. The court assumed that the resolution appointing the committee was a valid act of the corporation, and this is excepted to. The court did not err. The resolution was shown from the records of the cor- poration, and there was no evidence tending to impeach it. It purported to be a legal expression of the sense of the body of stock- holders, and so stood upon the corporation records. ^ An agent employed by a railroad company to solicit passengers cannot bind the company by a contract to receive or transport freight. Taylor v. Chicago & N. W. R. R. Co., 74 111. 86. rally, nr) doubt, a stockliolUex^s' rn-. ■ contract on such subjects, the or .. /.ii the directors ; but as the purpose 'asr to in- \ .-li'rate what had been done undei . .. ■ of the ■ : rs, it was competent for the holders of : ^tock to do what was done. Conip. L., § 2682. T ' '^^ which the corporation can urge an intendmenl -;. lution, and arbitrarily den ilarity a. ot •';'. lacts presented, every pr< is the < was no offer of proof that the sto^ present i not hold a majority of the stock . vas sonv to show that the' directors •■ f the proceeding; quiesced. The court left it to the jui ther Ketchum, r- member of thr- committee, concin rca ::a \ an Vliet's em;' they found il'-ii- he did. There was evidence warrar, mission only so, the proposition scarcely admitLcd au) answer vsv gave. The : red on the committee implied a right to agree upr.n '' .,u paid for the service. The committee were to en ; The end thus required implied authority to use the Pi ■ ''f could not have been supposed that competent ;ic ' found to enter on such an undertaking without --(- ing the rate of compensation. The ar- r:\:- ace Vv-as reasonable. If none had been 1: :_ ..n error no doubt might have hired a clerk, and p- I why it was not proper to adjust the coiivoc-! ^ri- ch help. Without it the expense to the ^-cn great-" -'''• '■' - - -^^ ^.-.-.i-ti- ^iriy submitted and no ground is seen I'j: dis'airu- ■e affirmed with costs. . urred.^ ilsp. 6s, it was decided that an rjthority t^ r^y ?~ri power to carry the award into effer' , T2 La. Ann. 159, it was held '' ■ sue laims" inchided the power t bring ■se dutv it is to collect mon '. Life Ass. Soc. v. Lestt LIACIT.T': dcciara • jected. Th': vi prool :e alleged agt inissible arations as ;■ i)art <>'■ ''f authority ■ ;a: ii' lis, while in t! . v-vjiirsc, iiiadmissible. (■ terms of the instrument '■ ' ''Hliam R. Miller a 1 the arguments ■ nonsuit must star. LIET. -^ Mich. 364. a corporation organize.; ad at a meeting of th'. Toulmin and Ketchmii, '■• expert accountants to by allowing ■>. .'-> other amount f ' construction of ' . which the court below ]> "Hs prosecuting the bi; .-.m expressed his assi : a written apprc.- employment. 'J" ed and was ■,e, but none r c the commit: Ai;ii .a, ■ ! to. The CO; r err. T: )rds of the c.- and tlir rnpeach it. io be a - body of stoc iigers- cannot ! raylor v. Chic. CONTRACTS. I9I Generally, no doubt, a stockholders' meeting would not be author- ized to contract on such svibjects, the ordinary management being with the directors ; but as the purpose here was in part at least to in- vestigate what had been done under the superintendence of the directors, it was competent for the holders of a majority of the stock to do what was done. Comp. L., § 2682. There is no ground on which the corporation can urge an intendment against the validity of the resolution, and arbitrarily deny its regularity and force. In view of the facts presented, every presumption is the other way. There was no offer of proof that the stockholders present at the meeting did not hold a majority of the stock, and there was some evidence tending to show that the directors were aware of the proceeding and ac- quiesced. The court left it to the jury to say whether Ketchum, the second member of the committee, concurred in Van Vliet's employment, and thev found that he did. There was evidence warranting this sub- mission ; and not only so, the proposition scarcely admitted any other answer than the jury gave. The power conferred on the committee implied a right to agree upon the price to be paid for the service. The committee were to employ experts. The end thus required implied authority to use the proper means, and it could not have been supposed that competent accountants would be found to enter on such an undertaking without some understanding concerning the rate of compensation. The ar- rangement for clerical assistance was reasonable. If none had been made the defendant in error no doubt might have hired a clerk, and no reason is perceived why it was not proper to adjust the compensa- tion with an eye to such help. Without it the expense to the company would probably have been greater still. It is not worth while to discuss other points. The case was fairly submitted and no ground is seen for disturb- ing the result. The judgment should be affirmed with costs. The other justices concurred.^ ^ In Dawson v. Lavvley, 4 Esp. 65, it was decided that an authority to pay an award includes the power to carry the award into effect by executing a re- lease. In Morgan v. Brown, 12 La. Ann. 159, it was held that an authority to "sue or otherwise collect all claims" included the power to employ counsel to bring suit on the claims. "The act of an agent, whose duty it is to collect money due his principal, is authorized only to resort to such proceedings as are usual and legitimate for the purpose. Civil proceedings would be deemed such, but not the use of criminal process. This is not appropriate or justified in order to collect a debt." James, C. J., in Equitable Life Ass. Soc. v. Lester (Tex.), no S. W. 499, SOI. 192 LIABILITY TO THIRD PERSONS. TERRE HAUTE and INDIANAPOLIS R. R. CO. v. McMURRAY. 1884. Supreme Court of Indiana. 98 Ind. 358. Elliott, C. J. — The facts in this case are simple, and lie within a narrow compass ; but the questions of law are important and diffi- cult. Frankfort is a way station in the line of appellant's road, distant many miles from the principal offices of the company and from the residences of its chief officers. At this station at one o'clock of the morning of July 2, 1881, Thomas Coon, a brakeman in the service of the appellant, had his foot crushed between the wheel of a car of the train on which he was employed as a brakeman, and a rail of the track. The injury was such as demanded immediate surgical at- tention. The conductor of the train requested the appellee, who was a surgeon, residing in the town of Frankfort, to render the injured man professional aid, and informed the appellee that the company would pay him for such services. At the time the accident happened, and at the time the surgeon was employed, there was no officer su- perior to the conductor at the town of Frankfort. There was at the station a resident agent who had full knowledge of the injury to Coon and of appellee's employment. This agent was in telegraphic communication with the principal officers of the company, but did not communicate with them. The trial court held the appellant liable for the reasonable value of the services rendered by the ap- pellee, and awarded him $100. In ordinary cases, a conductor or other subordinate agent has no authority to employ surgical assistance for a servant of the corpora- tion who receives an injury or becomes ill. We do not doubt that the general rule is that a conductor has no authority to make con- tracts with surgeons, and if this principle governs all cases the dis- cussion is at an end ; but we do not think it does rule every case, for there may be cases so strongly marked as to constitute a class in themselves and one governed by a different rule. The authority of an agent is to be determined from the facts of the particular case. Facts may exist which will greatly broaden or greatly lessen an agent's authority. A conductor's authority in the presence of a superior agent may dwindle into insignificance, while in the absence of a superior it may become broad and comprehensive. An emergency may arise which will require the corporation to act instantly, and if the conductor is the only agent present, and the emergency is urgent, he must act for the corporation, and if he acts at all, his'acts are of just as much force as that of the highest officer of the corporation. In this instance the conductor was the highest officer on the ground ; he was the sole representative of the corpora- tion ; he it was upon whom devolved the duty of representing the U '.Mie VI ITi tiry to the i .jevicr . or it i.ses where the c\ ;- lion that m the ^u.- 'y here the train is di^ - i . where the conductor niu- .< '2 me •, for the time, and under thi .)f the ' ", and if he be ■■•-^- !ie exigency, be i^ examples will prove this to be true. a train is brought to a halt by the ■.>:■ 'V is a mechanic who can repair ; .: to proceed on its way, may not ... ;? Again, suppose a bridge is disco > re are timbers at a neighboring mill Vi'irci. v. jj; not the conductor, in behalf of his principal, the timber to the bridge? Once more, s" uTomotive to be disabled, and that it is nc train to avoid danger, and there is nearby a corn- s' not the conductor employ him to take the train these examples we mean to include, as a silent there is an emergency, allowing no time for com- oerior officers, and requiring immediate action > of pressing ei' on the highest r^ St be true that he may do, in the cmeri present, might do. If the conduci''^- esent the company, then it is inc " - of the emergency, and 6 est officer. The position :> with it. T 'fity inci ' ly, astheer. unperat; may justly do, that there are occ; e •^■'d the necessity so pressing, th; lie representative of the com rent and immediate de h an emerofencv as v .ui in th. ■■-' ■ ,t "0'] nror Iv of tht .ii-u as r- ■ om pen Ti:.ivKh. 11 y. ■.ult. morning the :v'r^ the 1-. .;- «I1, his act- of the corpora I n officer on the gT' tion; he ri'^ Tnd. 358. .-, >,,!,-:-. aiv, .-iiuj.ji., iiid lie within as of law are important and diffi- ihc. line of appellant's road, distant offices of the coiripany and from the A.t this station at one o'clock of the "oon, a brakema!! in the service of J K^i;.r.,rv tfie whccl of a car of nan, and a rail of the ;•- ii.e'v 'iate surgical at- iT-nin r< I'pellee, who was > render the injured ■vC that the company ie the accident happened, ', th€re was no officer su- wikfort. There was at the ' ' ^^ of the injury to rts in telegraphic :. company, but did . held the appellant -ervices rendered by the ap- ipai oth. The i: ■V other subordinate agent has no mce for a servant of the corpora- comes ill. We do not doubt that ■>r has no authority to make con- '-incinle governs all cases the dis- le every case, for titnte a class in .^ — ...u from the facts of the lich will greatly broaden or ' ■ "'.or's authority in the : insignificance, while ] and comprehensive. -.c' corporation to act unly agent present, and the ■'\c corporation, and if he acts that of the highest officer v>nductor was the highest resentative of the corpora- duty of representing the CONTRACTS. 193 corporation in matters connected within the general Hne of his duty in the sudden emergency which arose out of the injury to the fellow- servant immediately under his control ; either he, as the superior agent of the company, must, in such cases, be its representative, or it has none. There are cases where the conductor is the only repre- sentative of the corporation that in the emergency it can possibly have. There are cases where the train is distant from the supervi- sion of superior officers, where the conductor must act, and act for the company, and where, for the time, and under the exigencies of the occasion, he is its sole representative, and if he be its only repre- sentative, he must, for the time and the exigency, be its highest rep- resentative. Simple examples will prove this to be true. Suppose, for illustration, that a train is brought to a halt by the breaking of a bolt, and that nearby is a mechanic who can repair the broken loolt and enable the train to proceed on its way, may not the conductor employ the mechanic? x\gain, suppose a bridge is discovered to be unsafe, and that there are timbers at a neighboring mill which will make it safe, may not the conductor, in behalf of his principal, employ men to haul the timber to the bridge? Once more, suppose the engineer of a locomotive to be disabled, and that it is necessary to at once move the train to avoid danger, and there is nearby a com- petent engineer, may not the conductor employ him to take the train out of danger? In these examples we mean to include, as a silent factor, the fact that there is an emergency, allowing no time for com- municating with superior officers, and requiring immediate action. If it be true that there are cases of pressing emergency where the conductor is on the special occasion the highest representative of the company, then it must be true that he may do, in the emergency, what the chief officer, if present, might do. If the conductor is the only agent who can represent the company, then it is inconceivable that he should, for the purposes of the emergency, and during its exist- ence, be other than the highest officer. The position arises with the emergency, and ends with it. The authority incident to the position is such, and such only, as the emergency imperatively creates. Assuming, as we may justly do, that there are occasions when the exigency is so great, and the necessity so pressing, that the conductor stands temporarily as the representative of the company, with au- thority adequate to the urgent and immediate demands of the occa- sion, we inquire what is such an emergency as will clothe him with this authority and put him in the position designated. Suppose that a locomotive is overturned upon its engineer, and he is in immediate danger of great bodily harm, would it not be competent for the con- ductor to hire a derrick, or a lifting apparatus, if one were near at hand, to lift the locomotive from the body of the engineer? Surely some one owes a duty to a man. imperiled as an engineer would be in the case supposed, to release him from peril, and is there any one 13 — Reinhard Cases. 194 LIABILITY TO THIRD TERSONS. upon whom this duty can be so justly put as upon his employer? The man must, in the case supposed, have assistance, and do not the plainest principles of justice require that the primary duty of yield- ing assistance should devolve upon the employer rather than on strangers. An employer does not stand to his servants as a stranger, he owes them a duty. The cases all agree that some duty is owing from the master to the servant, but no case that we have been able to find defines the limits of this duty. Granting the existence of this general duty, and no one will deny that such a duty does exist, the inquiry is as to its character and extent. Suppose the axle of a car to break because of a defect, and a brakeman's leg to be mangled by the derailment consequent upon the breaking of the axle, and that he is in imminent danger of bleeding to death unless surgical aid is summoned at once, and suppose the accident to occur at a point where there is no station and when no officer superior to the con- ductor is present, would not the conductor have authority to call a surgeon? Is there not a duty to the mangled man that some one must discharge? and if there be such a duty, who owes it, the em- ployer or a stranger? Humanity and justice unite in affirming that some one owes him this duty, since to assert the contrary is to affirm that upon no one rests the duty of calling aid that may save life. If we concede the existence of this general duty, then the further search is for the one who in justice owes the duty, and surely, where the question comes between the employer and a stranger, the rule must be that it rests upon the former. Authorities upon the question we are discussing are far from abundant. In the case of Marquette, etc., R. R. Co. v. Taft, 28 Mich. 289, a laborer in the service of the company was struck and injured by one of its trains, and the yardmaster and the superintendent em- ploy a surgeon, and the court divided on the question of the com- pany's liability. Graves and Campbell, JJ., denying its liability and Cooley, J., and Christiancy, C. J., affirming that it was liable to the surgeon. One opinion was written by Graves, J., and proceeds on the broad ground that no officer of the company could bind it to pay for surgical services rendered an employe. That case is, however, dis- tinguishable from the present, even upon the theory adopted in the opinion of Judge Graves, for in this case there was an immediate necessity for surgical aid, while in the one cited there is not shown to have been any such necessity. Judge Cooley's opinion is a model of judicial reasoning, and forcibly maintains the duty of the railway companies to provide surgical aid for its servants in cases of acci- dents incident to their employment. In one place he says : "We think it their duty to have some officer or agent, at all times, compe- tent to exercise a discretionary authority in such cases, and that on grounds of public policy they should not be suffered to do other- wise." At another place he says : "We shall not stop to prove that there is a strong moral obligation resting upon any one engaged in ■cessary io 1 accident 1 in his emp' be too .V argument." .v.: ..^ anion, ble, isthis: "There can I Nvithin iiebody's employment, for a i, cause s injured in carriage or run « to be the attention proper and ' /ed to do as much for the s m Hke manner injured, but all pt -ervice ■' rbidden to incur on its behalf ?^ vciiiil jcessary to remove him out of the -even to corr ' • to his house. ■■■'. a threateni; : — then if such ; itate to appi) it, even though it be iir, ought not to be the law, and that no ; ;iu hazardous nature ought to be suffered to be for the major part of the time empowered to rm a duty which, at least on moral grounds ])erative. But we do not think such is the law. )f Northern Central R. Co. v. State, 29 Md. 420, it • was the duty of agents in charge of a railroad traiij one injured by a collision, and to do it with a proper and the laws of humanity, alker v. Great Western R. W. Co., L; R. 2 Ek • eneral manager of the company had authority for a servant injured in the company's serv-- the course of the argument, inquired : "M- i a man who has both his legs hi ' See 36 Law Journal (C. L.) t ^ . Union Manufacturing Co., 42 C -nsiness manager of a manufacture pploy surgical aid for a lad who had received an i?' ice. etc., R. R. Co. V. Reisner, 18 Kan. 4 olding rneral agent of a railroad " zed to on to attend one of the br in the uiy. The court said, iu tlv inion : le general agent of the c 'Iv the Ai." This is necessarily true i; ni •u-t r.-.r f!i,- corporation, and - ::e -st agent of the corp I- ;ieral agent of the COT : '.sent, only bv its asre*^ tUc COipvy'i'tii LIAHTT.TI . n-.r,i, his employer; 1 he 1 and do not the p] iluty of yield- i irsHier than on '. stranger, .}- is owing • been able xistence of t' aty does exist, ti e the axle of a c. to be mangled by lii : axle, and that h*^ i« surgical aid is cur at a point lor to the con- 11. • lority to call a ~;urc,c( that some one must < sves it, the em- p]. ; affirming that S'. ary is to affirm t;; ly save life. If further search i< \ burely, where the q;.. 'in-er. the ru!e nuist b> . r 1, .i ^'. ! .>:^ii It: cut. iai i]i_.iiii R. R. Co. V. Taft, 28 Mich. struck and injured superintendent ern- icd on the question of the com- 11 TT.. denying its liability and hat it was liable to the . J., and proceeds on the could bind it to pay for '.e. That case is, however, dis- ' upon tb'' theor>' adopted in the an immediate w is not shown opinion is a model , . .- duty of the railway or its servants. in cases of acci- ''n one place he says : "We t' r agent, at all times, compe- te " -^s, and that o c; _ 1 to do Othc; , . • • \ , • Avdli not stop to prove that •;..i. 1- ; . !>^ upon any one euea^ed in CONTRACTS. 195 a dangerous business, to do what may be immediately necessary to save life or prevent an injury becoming irreparable, when an accident happens to a person in his employ. We shall assume this to be too obvious to require argument." Another extract from this opinion, strongly applicable, is this : "There can be no doubt that it is within the scope of somebody's employment for a railway company to cause a beast which is injured in carriage or run over at a crossing to be picked up and have the attention proper and suitable to its case ; and if no one is authorized to do as much for the faithful servant of the company who is in like manner injured, but all persons in its service are impliedly forbidden to incur on its behalf any expense beyond what may be necessary to remove him out of the way of their trains and machinery — even to convey him to his house, or to save his life by binding up a threatening wound — then if such is the law, the courts must not hesitate to apply it, even though it be impossible to avoid feeling that it ought not to be the law, and that no business of this extensive and hazardous nature ought to be suffered to be carried on with no one for the major part of the time empowered to recog- nize and perform a duty which, at least on moral grounds, is so obvious and imperative. But we do not think such is the law.'' In the case of Northern Central R. Co. v. State, 29 Md. 420, it was held that it was the duty of agents in charge of a railroad train to take care of one injured by a collision, and to do it with a proper regard to his safety and the laws of humanity. It was held in Walker v. Great Western R. W. Co., L. R. 2 Exch. 228, that the general manager of the company had authority to em- ploy a surgeon for a servant injured in the company's service. Chief Baron Kelly, in the course of the argument, inquired : "]\Iust a board be convened before a man who has both his legs broken can have medical assistance?" See 36 Law Journal (C. L.) 123. In Swazey v. Union Manufacturing Co., 42 Conn. 556, the court held that the business manager of a manufacturing corporation had authority to employ surgical aid for a lad who had received an in- jury in its service. In Atlantic, etc., R. R. Co. v. Reisner, 18 Kan. 458, the holding was that the general agent of a railroad company was authorized to employ a surgeon to attend one of the brakemen injured while in the service of the company. The court said, in the course of the opinion : *Tn other words, the general agent of the company is virtually the corporation itself." This is necessarily true in cases where the agent is required to act for the corporation, and is also true where the agent who acts is the highest agent of the corporation present, al- though he may not be the general agent of the corporation. A corpo- ration can act, and can be present, only by its agent, and when it must act and must be present at a particular time and place, then it is pres- ent, and does act, through the highest agent who is on the ground. If the agent represents the corporation by authority, then, so far as 196 LIABILITY TO THIRD PERSONS. he represents it in the particular manner, he is, in law, the corpora- tion, for through him it is present and acting. If, then, the con- ductor is the highest agent on the ground, and the corporation must and does act, his act is just as much that of the corporation in the particular instance, and circumscribed by the exigencies of the special occasion, as though he were much higher in authority. The ruling in Atchison, etc., R. R. Co. v. Reecher, 24 Kan. 228, is that the general superintendent of a railroad company has authority to employ a surgeon to attend a man injured while in its service. The cases of Toledo, etc., R. W. Co. v. Rodrigues, 47 111. 188 ; Toledo, etc., R. W. Co. V. Prince, 50 111. 26 ; Indianapolis, etc., R. R. Co. v. Morris, 6^ 111. 295 ; Cairo, etc., R. R. Co. v. Mahoney, 82 111. 73, cited and relied on by the appellant, all recognize the doctrine that the super- intendent or general agent has authority to employ a surgeon to treat a servant who has been injured. If we are right in our con- clusion that an emergency may arise which will constitute a con- ductor, for the time and the emergency, the chief officer of the corporation present, then these cases are strongly in support of our position that he may, in cases of urgent necessity, bind the corpora- tion by contracting with the surgeon. For, once it is conceded that the officer having a right to represent the company is the company, it inevitably follows that his contract is that of the corporation. These cases do deny, however, in general terms, the authority of a station agent or conductor to employ a surgeon, but they affirm that if the superintendent has notice of the services rendered by the surgeon, and does not disavow the agent's acts, the company will be bound. It is to be noted that in all of these cases the company was held liable on the ground of ratification by the superintendent, and there was really no decision of any other question than that a failure of the superintendent to disavow the contract of the conductor or station agent rendered the company liable. There was no discussion of the authority of a conductor in cases of immediate and urgent necessity. The reasoning of the court in these cases strongly indicates that the act of the superior officer, whoever he may be, on the occasion and under the emergency, would be deemed the act of the corporation which he assumes to represent. In the last of these cases it is said : "While a railroad company is under no legal obligation to furnish an employe, who may receive injuries while in the service of the company, with medical attendance, yet, where a day laborer has, by an unforeseen accident, been rendered helpless when laboring to ad- vance the prosperity and the success of the company, honesty and fair dealing would seem to demand that it should furnish medical as- sistance." If it be conceded that honesty and fair dealing require that medical assistance should be furnished, then the law requires it, for the law always demands honesty and fair dealing. It would be a cruel reproach to the law, and one not merited, to declare that it denied to an injured man what honesty and "fair dealing require." ^97 jt honesty and '■ '' would ;ild be 'Id not him in .iTiper- • To., '1- ::r that a man h:< d of his y princi ■ ioi ihe servant's dcaili. :he master in ordinary ca; dinary cases, where immediate ■ demanded. The case of Tucker \. .. 177, does decide that a station agent 'j:eon, but no elenv: '' ' ' ' ^ ;e i=; no authori' 'S . All V I :s; "'11 is o: and the r] were age; '■aiiroad business, which of itself c ity to employ p1i\ -irirwi^. for the ci'. — rs'ons accidental! 1 on the roads. ' . ent is true in om;... ; ^ cases, but when ■ odiate and pressing necessity, a new and p : 10 the case. A brief opinion was rendered Ji} ., R. W. Co., Gj Mo. 122, declaring that the s^ ompany could not bind the company for "a smaii 'oui r.r<\ a woman who had been hurt by the locomotive or nt." It may be said of the last cited case that '<' u.,ie of emergency requiring prompt action, and f <: ; ' ars in the meager opinion of a very few lines, therc no necessity for action. But it is further to be said of to be deemed as going to the extent of denying the ^ the principal officers to contract for medicine in a , it finds no support from any adjudge i ~r.>-- Tht* ry V. Chicago, etc., R. R. Co., 75 M< a physician employed to render medic... ..... . ther purpose, undertook to contract for board: ant savs, in his argument: "d?-i <.ev- counsel ;ses the court ui e, requires a rail? without fault on his part in i the company. Whilst this r T-ict justice, too, would at le; roper means for exercising ti ;e cases wherein it ought to be ■ hile the concession 01: >v. his answer is far ■ .vhile waiting for th ■.\:> vAvVi I'lMT'anltv , ■ omote :■, ill law, ihe corpora g'. If, then, the coii- l the corporation must ihf ,-, ..1 :^..,r -.t-ion in the ^, of the iMgiicr iM ;;'>!• I lority. The cher, 24 Kan. 228, is that y has authority to n its service. The ■ngues, 47 111. 188 ; Toledo, etc ipolis, etc., R. R. Co. v. Morri.^ Mahoney, 82 111. 73, cited an. ';■■-; ■. > - ''■ - loctrine that the supe- r.iiendent o employ a surgeon to t'eat a ser\, ■ right in our con elusion tha! constitute a con 'juctor, foi officer of the .- 1. M .ition _ support of our ent necessity, bind the corpor, \. For, once it is conceded th 1 L the company is the company, ' :; . . • • itation. These iy of a station affirni that if the .J by the surgeon, s acts, the company will be bound. , t^. ^.. these cases the company was held il^Ie on til >n by the superintendent, and there v.; -" ' -lestion than that a failure of the j^! act of the conductor or station ie. There was no discussion of the of immediate and urgent necessity, .ise cases strongly indicates that the \ er he may be, on the occasion and deemed the act of the corporation In the last of these cases it is said : nder no legal obligation to furnish njuries while in the service of the ^e. vet, where a day laborer has, by s when laboring to ad- I iipany, honesty and fair ; that it should furnish medical a- . .^at honesty and fair dealing requi; 1 be furnished, then the law requires ; ' -Tiesty and fair dealing. It would be one not merited, to declare that i lid "fair dealing require ' CONTRACTS. 197 If it should appear that a man had been denied what honesty and fair dealing required of his master, and death should result, it would seem clear, on every principle of justice, that the master would be responsible for the servant's death. Of course, this duty could not rest upon the master in ordinary cases, but should rest upon him in extraordinary cases, where immediate medical assistance is imper- atively demanded. The case of Tucker v. St. Louis, etc., R. W. Co., 54 Mo. 177, does decide that a station agent has no authority to em- ploy a surgeon, but no element of pressing necessity entered into the case. There is no authority cited in support of the opinion, nor is there any reasoning. All that is said is : "It is only shown that they [the station agent and the conductor] were agents of defendant in conducting its railroad business, which of itself could certainly give them no authority to employ physicians, for the defendant, to attend to and treat persons accidentally injured on the roads." It may be that this statement is true in ordinary cases, but when we add the element of immediate and pressing necessity, a new and potent factor is introduced into the case. A brief opinion was rendered in Brown V. Missouri, etc., R. W. Co., 67 Mo. 122, declaring that the superin- tendent of the company could not bind the company for "a small bill of drugs furnished a woman who had been hurt by the locomotive or cars of the defendant." It may be said of the last cited case that it presented no feature of emergency requiring prompt action, and for aught that appears in the meager opinion of a very few lines, there may have been no necessity for action. But it is further to be said of it, that if it is to be deemed as going to the extent of denying the right of one of the principal officers to contract for medicine in a case of urgency, it finds no support from any adjudged case. The case of jMayberry v. Chicago, etc., R. R. Co., 75 Mo. 492, is not in point, for there a physician employed to render medical aid, and em- ployed for no other purpose, undertook to contract for boarding for an injured man. The learned counsel for appellant says, in his argument: "In sev- eral of these cases the court takes occasion to say that humanity, if not strict justice, requires a railroad company to care for an employe who is injured without fault on his part in endeavoring to promote the interests of the company. Whilst this may be true, I think hu- manity, and strict justice, too, would at least permit the company to adopt the proper means for exercising the required care and of determining the cases wherein it ought to be exercised." It seems to us that while the concession of the counsel is required by principle and authority, his answer is far from satisfactory. Can a man be permitted to die while waiting for the company to deter- mine when and how it shall do what humanity and strict juslice re- quire ? Must there not be some representative of the company pres- ent in cases of dire necessity to act for it? The position of counsel will meet ordinary cases, but it falls far short of meeting cases where 198 LIABILITY TO THIRD PERSONS. there is no time for deliberation, and where humanity and justice de- mand instant action. From whatever point of view we look at the subject we shall find that the highest principles of justice demand that a subordinate agent may, in the company's behalf, call surgical aid, when the emergencies of the occasion demand it, and when he is the sole agent of the company in whose power it is to summon assist- ance to the injured and suffering servant. Humanity and justice are, for the most part, inseparable, for all law is for the ultimate benefit of man. The highest purpose the law can accomplish is the good of society and its members, and it is seldom, indeed, that the law refuses what humanity suggests. Before this broad principle bare pecuniary considerations become as things of little weight. There may be cases in which a denial of the right of the conductor to summon medical assistance to one of his trainmen would result in suffering and death ; while, on the other hand, the assertion of the right can, at most, never do more than entail upon the corporation pecuniary loss. It may not do even that, for prompt medical assist- ance may, in many cases, lessen the loss to the company by prevent- ing loss of life or limb. The authority of a conductor of a train, in its general scope, is known to all intelligent men, and the court that professes itself ig- norant of this matter of general notoriety avows a lack of knowledge that no citizen who has the slightest acquaintance with railroad affairs would be willing to confess. It is true that the exact limits of his authority cannot be inferred from evidence that he is the con- ductor in charge of the train, but the general duty and authority may be. This general authority gives him control of the trainmen and of the train, and devolves upon him the duty of using reasonable care and diligence for the safety of his subordinates. The authority of the conductor may be inferred, as held in Columbus, etc., R. W. Co. v. Powell, 40 Ind. 37, from his acting as such in the control of the train, but this inference only embraces tlie ordinary duties of such an agent. Many cases declare that the conductor, in the management of the train and matters connected with it, represents the company. It is true that the agency is a subordinate one, confined to the subject- matter of the safety of the train and its crew, and the due manage- ment of matters connected with it, but although the conductor is a subordinate agent he yet has broad authority over the special subject committed to his charge. It was said in Jeffersonville Ass'n v. Fisher, 7 Ind. 699, that "It is not the name given to the agent, but the acts which he is authorized to do, which must determine whether they are valid or not, when done." In another case it was said : "The authority of an agent being limited to a particular business does not make it special ; it may be as general in regard to that, as though its range were unlimited." Cruzan v. Smith, 41 Ind. 288. This sub- ject was discussed in Toledo, etc., R. W. Co. v. Owen, 43 Ind. 405, where it was said : "A general agent is one authorized to transact all his principal's business or all of his principaUs business of some par- ticular kind. A special agent is one who is authorized to do one or more special things, and is usually confined to one or more particular tj : ■;, such as the sale of a tract of land, to S( ' adjust a « jcount, or the like. That the autiioritv of • i? lim- ited 10 a particular kind of business doc* : :al agent. Few, if any, agents of a railroad coi nd to every kind of business of the company," bui ed duties of a particular kind, or relating to jr department of the business." Wharton say is one who is authorized by his principal to take cii in a particular line." Wharton Agency, 117. It f:^.nii^'ar principles that the conductor of a train, so iiiu -iirect and immediate management of the train \\ the road, is, in the. absence of some superior officer, the gc n of the company; but even general agents do not hav' :il powers, and the authority of such agents is to be deduce .;e facts surrounding the particular transaction. 2 Greenl. Ev. '.■4, 64a. In some m:>tances, then, the conductor is the general agent of the compan}', an.l we think it clear upon principle and authority, that he is such an agent for the purpose of employing surgical assistance where a brakeman of his train is injured while the train is out on the road, and where there is no superior officer present, and there is an immediate necessity for surgical treatment. A conductor cannot be regarded as having authority to employ a surgeon when the train is not on the r. Tid under his control, or where there is one higher in authoT " ound, or where there is no immediate m for tiK H surgeon. The ruie h iiu li denies a recovery w^here there is mutual negligence applies only betvxeen the immediate parties. The courts (l> n<>: t x tend the rule to cases where the defendant's negligence . ' ■^^''■-'\ person concur in producing the injury. Thu ■■ ito collision and the managers of both are neC' niri\ • '' ^s be maintained by a passenger. " ' ,;. R. C< er, ante, p. 186. So. if a man '? cr 'I' 'jy a collision occurring thron: rent neg- h d.river of the vehicle and the ,1 railroad t' in running it. he may recover, i )!g the CO..,. 'licence of the driver of the vel ' -"^ • riding Ibion v. Hettrick, 90 Ind. 54; Rnbhi .-...v Y'urk Cent., etc.. R. R. CoS 'j^j -7, A 1:1. vi'p. i; Wabash, etc., R. Co. v. Shacklet. i<. 44 ■'^1'' Tson v. New York Cent ^4 N. V. 310; Cuddy v. Horn. 4' ;i Am. In , Bennett v. New Jersey, T,^ An < contributory negligt authorities iLITY TO TiiIRD PF.R.SON>. th' , -11101 Lit. .le injure( r the most ; ut man. T^ : society an fuses wh' >ulieiing ami >. umanity and justice de- ustice demand f, call surgical ;ind when he is .-wer it is lo ?ummon assist- mt. Humanity and justice tor all law is for the ultimate 1.- the law can accomplish is the ■ d it is seldom, indeed, that the ,s. Before this broad principle ne a«: thines of little weight. iemal of ht of the conductor one of i n would result in he other -sertion of the ic than Jie corporation vcn tha', tipt medical assi,- :-'..,. 1..,..; ........,^., Vjy preveii ■;i atraui, .leral scope, is ) the court . esses itself ig- ■riety avo\v> 'd from evidence that he is the con- : the general duty and authority may Liu> t^cut' vt'.^ him control of the trainmen, and of •: train, and v , him the duty of using reasonable care -.!.)• f his subordinates. The authority of the C' IS held in Columbus, etc., R. W, Co. v. F- icting as such in the control of the train, '; i-ices the ordinary duties of such an agent. 1^ the conductor, in the management of the . :^ ..i/M.Kjcted with it, represents the company. It is .:ency is a subordinate one. confined to the subject- ' '- of the train and its I the due manage- -nected with it, but ; (he conductor is a i has broad authority special subject ■e. It was said in Mville Ass'n v. "It is not the name given to the agent, but the ized to do, which must determine whether th' en done." In another case it was said : "Tl. auiiiu. - limited to a particular business does not make :i is general in regard to that, as though its range v\ m v. Smith, 41 Ind, 288. This sub- ject was di ., R. W. Co. v. Owen, 43 Ind. 405, 'here it wa iiu agent is one authorized to transact .'<'' CONTRACTS. 199 his principal's business or all of his principal's business of some par- ticular kind. A special agent is one who is authorized to do one or more special things, and is usually confined to one or more particular transactions, such as the sale of a tract of land, to settle and adjust a certain account, or the like. That the authority of an agent is lim- ited to a particular kind of business does not make him a special agent. Few, if any, agents of a railroad company do, or can, attend to every kind of business of the company, but to each one is assigned duties of a particular kind, or relating to a particular branch or department of the business." Wharton says : "A general agent is one who is authorized by his principal to take charge of his business in a particular line." Wharton Agency, 117. It results from these familiar principles that the conductor of a train, so far as concerns the direct and immediate management of the train when it is out on the road, is, in the absence of some superior officer, the general agent of the company ; but even general agents do not have universal powers, and the authority of such agents is to be deduced from the facts surrounding the particular transaction. 2 Greenl. Ev., §§ 64, 64a. In some instances, then, the conductor is the general agent of the company, and we think it clear upon principle and authority, that he is such an agent for the purpose of employing surgical assistance where a brakeman of his train is injured while the train is out on the road, and where there is no superior officer present, and there is an immediate necessity for surgical treatment. A conductor cannot be regarded as having authority to employ a surgeon when the train is not on the road under his control, or where there is one hisfher in authority on the ground, or where there is no immediate necessity for the services of a surgeon. The rule which denies a recovery where there is mutual negligence applies only between the immediate parties. The courts do not ex- tend the rule to cases where the defendant's negligence and that of a third person concur in producing the injury. Thus, if two trains come into collision and the managers of both are negligent, an action may nevertheless be maintained by a passenger. Pittsburgh, etc., R. R. Co. V. Spencer, ante. p. 186. So. if a man is riding with another and is injured by a collision occurring through the concurrent neg- ligence of the driver of the vehicle and the servants of a railroad train engaged in running it, he may recover, notwithstanding the contributory negligence of the driver of the vehicle in which he is riding. Town of Albion v. Hettrick, 90 Ind. 545, 46 Am. Rep. 230; Robinson v. New York Cent., etc., R. R. Co., 60 N. Y. 11, s. c. 23 Am. Rep. i ; Wabash, etc., R. Co. v. Shacklet, 105 111. 364, s. c. 44 Am. Rep. 791 ; Masterson v. New York Cent, etc.. R. R. Co., 84 N. Y. 247, 38 Am. Rep. 510: Cuddy v. Horn, 46 Mich. 596, s. c. 41 Am. Rep. 178; Bennett v. New Jersey, etc., Co., 36 N. T- 225, s. c. 13 Am. Rep. 435. The doctrine of contributory nesrlisrence is bv some authorities 200 LIABILITY TO THIRD PERSONS. based on the principle that a man must not cast himself into danger, and by others upon the principle that one who is himself in fault can- not invoke assistance from the courts against another who shares the fault with him. Butterfield v. Forrester, ii East 60; i Thompson Neg. 485. Other authorities put the doctrine on the ground that the interests of the whole community require that every one should take such care of himself as can reasonably be expected of him. Shearman & Redf. Neg., § 42. It is obvious that, whatever be deemed the true basis of the doctrine, it cannot apply where the case goes beyond the plaintiff himself, or what, in law, is the same thing, his agent or servant. It is, therefore, plain that where a surgeon sues for professional services rendered at the request of the agent of a railroad corporation, no question of contributory negligence is in- volved. This is manifestly the practical, just and reasonable rule. It cannot be expected that a surgeon summoned to attend a case of pressing need shall be required to stop and investigate the causes of the accident, and thus take upon himself the functions of judge and jury. It is but just that he should be deemed entitled to rely on the statement of the corporate agent. Where a principal puts it in his agent's power to exercise apparent authority, the man who, in good faith, acts upon the statements of the agent should be protected. Cruzan v. Smith, 41 Ind. 288. The Supreme Court of Kansas, in a case not unlike the present, said : "The defendant in error was not compelled to institute inquiry as to the moral or legal liability of the railroad companv to take care of the disabled employe before re- ceiving him into his hotel, after the general agent of the company had agreed that the company would pay for the board and service." Atlantic, etc., R. R. Co. v. Reisner, 18 Kan. 458. The employment of a surgeon is not an acknowledgment of a liability to the injured servant, nor can any admission be tortured from such an act. Evidence of such an employment would be in- competent in an action by the servant, and no admission can, there- fore, be implied. The employment of a surgeon is nothing more than an act of humanity and justice demanded of a railroad company in behalf of a servant injured in its service. Judgment affirmed. ZoLLARS, C. J., dissents on the ground that it is not sufficiently shown that the conductor had authority to bind the company by his contract with appellee. On Petition for a Rehearing. Elliott, J. — Counsel for the appellant misconceive the drift of the reasoning in our former opinion, as well as the conclusion an- nounced. We did not decide that a corporation was responsible gen- erally for medical or surgical attention given to a sick or wounded servant ; on the contrary, we were careful to limit our decision to 201 e imnie- . inju^}^ th it ex- ! that where the itn- • ration on the grouno, ■Ue action, he was ai ition as the exigency ot the > l>ut we did not hold that the employ a surjjeon where the as a su}.'"^^ ' " " ■ ■ ''"C gro;-." sustain! es there . ed bv t! ..J. 8, a. . . . 48 Am. Rep, ofcy. r, who is the superior agent of the '-- present the principal so far as to ■"' services to an injured servant, a;i'^ pi idily harm, then it must be said, as it i of the United States in Chicago, etc., K. v » . nat "If such conductor does not represent the train is operated without any representative of its ■ Louisville, etc., R. R. Co. v. McVay, post, p. 391, • •''^- our conclusion in the present case. There *^'" " ie superior agent within reach, and there \v' vnediate action. These are fe h the i''xr> rases. We held > that the cc: :ority to emp^ rvant of the company; but ' n control of the '-.v, - -'^ "^ '• ont on the groun As the re. t^T^r mater the U). f the roai ; ',\ I! thf^ in in red ser Other .....s of tlv ■ch care lor protessi railroad co \olved. Ti; It cannot !" ,'uessing- n*. :-c;lu.-;i'c;iit ui U' liability to i -ach ail lent in ;i nn a" I into aangcr, !t in fault can- es the ■ inpson ■ uoctr. V ground that i-':"'ii;i ■ry one should ••ected of him. .\ !(u> liiai, w !i. '.Lever be deemed mot apply where the case goes •'ic same thing, ' a surgeon sues oi the agent of a . negligence is in- d reasonable rule. :o attend a case of 'Zzit the causes of ^ of judge and to rely on the ■ puts it in his : . 1 who, in good of the uild be protected. '■'h'-- ^^1' urt of Kansas, in a t in error was not lo Tilt - ' liability of the ni the • ''ve before re- ; -■ general aj;ciiL of the company pay for the board and service." -8 kan. 458. not an acknowledgment of a can any admission be tortured -..ch an employment would be in- rvant, and no admission can, there- * a surgeon is nothing more than inded of a railroad company in round iV lot sufficiently jirir].'';nv Vtv bi.-^ El- the r< 'ip';-onceive the drift of for medical I to a sick or wounded CONTRACTS. 201 surgical services rendered upon an urgent exigency, where imme- diate attention was demanded to save life or prevent great injury. We held that the liability arose with the emergency, and with it ex- pired. We did hold that where the conductor was the highest representa- tive of the corporation on the ground, and there was an emergency requiring immediate action, he was authorized to employ a surgeon to give such attention as the exigency of the occasion made imperi- ouslv necessary ; but we did not hold that the conductor had a gen- eral authority to employ a surgeon where there was no emergency, or where there was a superior agent on the ground. We think our decision was well sustained by the authorities there cited, and that it is further supported by the reasoning in Chicago, etc., R. W. Co. v. Ross, 31 Albany L. J. 8, and Pennsylvania Company v. Gallagher, 40 Ohio St. 637, s. c. 48 Am. Rep. 689, If the conductor, who is the superior agent of the company on the ground, cannot represent the principal so far as to employ a surgeon to render professional services to an injured servant, and prevent the loss of life or great bodily harm, then it must be said, as it was said by the Supreme Court of the United States in Chicago, etc., R. W. Co. V. Ross, supra, that "If such conductor does not represent the company then the train is operated without any representative of its owner." The decision in Louisville, etc., R. R. Co. v. McVay, post, p. 391, is not in conflict with our conclusion in the present case. There the roadmaster was not the superior agent within reach, and there was no emergency demanding immediate action. These are features which very essentially distinguish the two cases. We held in this case a doctrine held in the case cited, namely, that the conductor, or other subordinate agent, has no general authority to employ a surgeon for a sick or wounded servant of the company ; but we also held that where the conductor, in control of the company's train and its brake- men, is the highest agent on the ground, he does possess an authority commensurate with an existing and pressing emergency. It seems clear to us, upon principles of fair justice and ordinary humanity, that some one must possess authority to meet an urgent exigencv by employing surgical aid to save from death or great and permanent injury a servant under his control. As the reasoning in the ]\IcVay case clearly shows, there is still another material difference between the two cases, and that is this : there the roadmaster appeared to only have authority over the repairs of the road ; while here it ap- pears that the conductor had charge of the injured servant, and was the highest officer of the corporation capable of acting as its repre- sentative in the emergency which had so suddenly arisen. So far as concerns the general principle involved, there is no con- flict, but rather harmony, for the AlcVay case clearly recognizes the 202 LIABILITY TO THIRD PERSONS. doctrine that the highest agent capable of acting for the company may employ surgical aid in the proper case. Petition overruled,^ KAYE V. BRETT and another. 1850. Court of Exchequer. 5 Ex. 269. Debt for goods sold and delivered. Plea, payment in satisfaction. At the trial, before Patteson, J., at the Yorkshire Summer Assizes, 1849, it appeared that the action was brought to recover 94/ 3^-. for goods sold by the plaintiff to the defendants under the following cir- cumstances : W. Kaye, the plaintiff's son, carried on the business of a woolen cloth merchant at Huddersfield until the month of October, 1847, when he compounded with his creditors. On the 30th of October, 1847, the plaintiff", who had made advances to W. Kaye upon the security of a warrant of attorney, issued execution thereon, and took possession of W. Kaye's stock in trade, etc., in his ware- house. Shortly afterwards the plaintiff let the warehouse to Earn- shaw, Hinchliffe & Co., and arranged with their salesman to sell his goods. One H. Tozer, who had been in the employ of the plaintiff's son as a bookkeeper, remained in the warehouse as bookkeeper to Earnshaw & Co. The plaintiff', who was a builder, very seldom came to the warehouse ; but a book was kept by Tozer, in which he entered the sale of the plaintiff's goods ; he also made out invoices, and was accustomed to receive money paid over the counter for goods sold in the warehouse. The defendants carried on business as woolen warehousemen in London ; and in December, 1848, H. Brett, one of the defendants, being at Huddersfield, called at the warehouse of Earnshaw & Co.. and purchased some of the plaintiff's goods, to the amount of 30/ ys. 2>d. On the ist of February, 1849, the defendants received the following letter, containing a statement in reference to these goods : "Gentlemen : I beg to hand the above small account, which I trust you will find correct. A cheque for amount in course will oblige, gentlemen, your most obedient servant. "Joseph Kaye, pro. H. Tozer. "P. S. Please address, care of Earnshaw, Hinchliff'e & Co." ^Accord: Toledo, etc., R. Co. v. Rodrigiies, 47 111. 188. Contra: Sevier v. Birmingham, etc., R. Co., 92 Ala. 258. See Marquette, etc., R. Co. v. Taft, 28 Mich. 289, where the judges were evenly divided. See also, Atlantic R. Co. v. Reisner, 18 Kan. 458. The doctrine of the principal case has been held not to apply to the case of a factor}-. Chaplin v. Freeland, 7 Ind. .App. 676. It was decided in Cox v. Midland Counties R. Co., 3 Ex. 268, that power to make a contract for surgical attendance upon injured passengers was not incident to the employment of a station master. c;ox'''i' ■ 203 lount was accorf nitted by letter addressed to the and enclosing a em . k iidving' ' '- -'" for the ^ t^ the ) whom it was payable. 1 ■' of tht vas >t which •' als FRSFIEIJi Fro. Joseph iruary, H. i-lrett again called at u lid purchased goods belonging to 94/ -^s. On the 22d of February the -6 of the la^'-'-'^'-^'i ■■•'.-.' p■r^r.,u ■><,.• :g is a copy : The goods herewitli are forwarded this mormn. . !i to your satisfaction. Your further favors will your most obedient servant, "Pro. Joseph^ Kaye^ H. Tozer." * ch, 1849, ^^'^^ defendants received a statement '■■'-i following is a copy: Mr. Kaye wishes us to say that he should not have lit, but that he understood from Mr. Atkinson that money whenever he applied for it; and ■^'^ ' - '■ i for some large payments, he would allo\\ ■ 3 per cent., instead of 2^-4, if you \vr a cheque for him. We are, gentleme ARNSHAW, HlXCHLIFFE & Co., H. ToZER." lants wrote in reply a letter addressed to Earnshaw, ''o., offering to pay the sum to the ]V \\ being Jitional 2^^ per cent., say 5 per ce^' .. iiount of : and at the bottom of that lett- e following ■" the handwriting of the defendan; > uui: claims ys. 6d. ; 5 per cent., 41/ 14s. — 5/. ij. ua. 0(> receive-: 't the following letter : DDERSFIELD, l6th i^To'-ch iavour of the I5ti: le thinks you are very hard 11 !S in' want of the n. .,'■■, ^' P'^ eque per return >i acting for the company atis faction. er Assizes, 94/ 3s. for 1 lowing cir- bnsiness of i; of October, n the 30th of ■ . W. Kaye ' )n thereon, ■ 1 ui W ., in his ware- r^\ard- lOuse to Earn- -man to sell his i the plaintifif's bookkeeper to cldoni came i he entered wicts, and was ior goods sold ^less as woolen ;. : .- I. Brett,. one of crsfield, ' warehouse of ' r-- ' •; goods, to the lie defendants utammg eference to ,e above nt, which I •'ourse will . . TOZER. Co." i- Sevier Co. V. Taft, Atlantic R. 7 hr > the case a fact- I', w inties R ~ that power to P.-?y '•■' 'inon ' rs u;i<; not CONTRACTS. 203 The amount was accordingly remitted by letter addressed to the plaintiff, and enclosing a check having a blank for the name of the person to whom it was payable. The receipt of the check was acknowledged by a letter, of which the following is a copy, the initials "H, T." being those of Tozer : "HuDDERSFiELD, lotli February, 1849. "Gentlemen : I beg to acknowledge receipt of cheque value 29/ I2S., for which am obliged. Gentlemen, your most obedient servant, "Pro. Joseph Kaye, H. T." In the month of February, H. Brett again called at the warehouse of Earnshaw & Co., and purchased goods belonging to the plaintiff, to the amount of 94/ 3^-. On the 22d of February the defendants received an invoice of the last-mentioned goods, and a letter, of which the following is a copy : "Gentlemen : The goods herewith are forwarded this morning. and trust will open to your satisfaction. Your further favors will oblige, gentlemen, your most obedient servant, "Pro. Joseph Kaye, H. Tozer." On the 15th of March, 1849, the defendants received a statement and letter, of which the following is a copy : "Gentlemen : Mr. Kaye wishes us to say that he should not have written for payment, but that he understood from Mr. Atkinson that he could have the money whenever he applied for it ; and as he is now much pressed for some large payments, he would allow you an extra discount, say 3 per cent., instead of 2^, if you would be kind enough to send us a cheque for him. We are, gentlemen, your most obedient servants, "Pro. Earnshaw, Hinchliffe & Co., H. Tozer." The defendants wrote in reply a letter addressed to Earnshaw, Hinchliffe & Co., offering to pay the sum to the plaintiff on being allowed an additional 2>^ per cent., say 5 per cent., on the amount of the statement ; and at the bottom of that letter was the following memorandum in the handwriting of the defendant's clerk : "Goods, 94/ 3.y. ; claims ys. 6d. ; 5 per cent., 41/ 14^. — 5/. is. 6d. 89/ IS. 6d." The defendants received in answer the following letter : "Huddersfield, i6th March. 1849. "Gentlemen : In reply to your favour of the 15th inst., ^Ir. Kaye desires us to say that he thinks you are very hard upon him : but, as stated in our last, he is in want of the money. You will therefore please to hand us a cheque per return of post. We cannot say any- 204 LIABILITY TO THIRD PERSONS. thing about the returns until we see Mr. B. We are, gentlemen, your most obedient servants, "Pro. Earnshaw, Hinchliffe & Co., H. Tozer." On the i/th of j\Iarch the defendants remitted a cheque for 89/ IS., in a letter addressed to Messrs. Earnshaw, Hinchliffe & Co., Huddersfield, and which was delivered at their counting-house. This letter was intercepted by Tozer, who took the check to a bank in Huddersfield, and having obtained cash for it, absconded. The learned judge told the jury that the only question was, whether the payment to Tozer was payment to the plaintiff, and that depended upon whether Tozer was authorized to receive payment in checks, and if so, they should find for the defendants. A verdict having been found for the defendants, in last Michaelmas term a rule nisi was ob- tained to set aside the verdict, and for a new trial, on the ground of misdirection, against which Cleasby showed cause in the following Hilary Vacation (February 8). This case falls within the principle laid down in Story on Agency, § 127, note 2, viz. : that, "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." That doctrine is founded on the public policy of preventing frauds on innocent persons, and the encouragement of confidence in dealings with agents. In this case, if the check had been sent to Tozer, that would have been a valid payment ; so that the money has in fact come to the hands of a person authorized to give a discharge ; and it is immaterial in what way he got possession of it. [Parke, B. — If a shopman is accustomed to receive money over the counter, payment to him binds the principal, for there is a repre- sentation to all the world that the agent is authorized to receive money in the shop ; but that does not import an authority to receive money in any other way. Alderson, B. — ^If the plaintiff had directed the defendants to pay the money to a banker, and the defendants had done so, that would have been a good payment ; but here the plaintiff gave no direction that the money should be paid to Earnshaw & Co., on his account.] The defendants paid the money in the ordinary course of business, and Tozer, as the agent of Earnshaw & Co., was as much authorized to receive it as if the defendants had gone to the warehouse and paid him. [Parke, B. — It is as if the money had been sent by a messenger to Earnshaw & Co., and Tozer had robbed the messenger.] If the defendants had gone to the warehouse and asked for Tozer in order to pay him, and a person had come forward and represented himself as Tozer, payment to such person would have been good. Barrett v. Deere Moo. & M. 200; E. C. L. R., Vol. 22. There was ;\ts, for 1 Hiii, in support or nt, in fact, to Eft^^^ -■ idants could nor OUiV (li. io nav rice to the defer; posed upon ing the extent c. - ^ ;Lhority, Atv> . . & C. 278 E. C. L. R.. Vol. 14 ; Alexander v. Mack : Id. 60. It does r - - --^ *he correspondence i 1 a ;tv implied authf^ eceive the inoncv ; but 'reat him :iiing Earnshaw ■ )w said (after .- ts) : The q: c facts the receipi :y by Tozer c: . We are clearly of opinion that it did not. Earii ■'♦^horized to receive the money, and the statcuc.L ect, in the name of Kaye, was false, and there- :;jc of the money to and the receipt at the ' - 'law & Co., was no payment; nor did the ^ 'uey to Tozer, nor was Tozer authorized lo re- i which it was remitted. The receipt, therefore, good payment by the defendants to Kaye. If 'i,t]i,-Mi'7ed to receive payment over th- •-.....-.'-^r re than in the shop, that payr : i!i!j^!jt be \-\ '-'■''- " '--■ trust tl" ■ :^ — '^ course nf ^^ ii the sh c s case til 'iWe in all siicli -riv'- e is expfi ■'onty to ■ Tstlcmen, I. TOZER.' ,i tht i: n que tor e &Co.. nonse. This J a bank in nded. The ■V > .vere requested to pay to P. C. & J. D nine hundred and sixty-nine dollars and was signed by L. E. Stainback, by F. C. S;.i..x by F. C. Stainback, and was endorsed by the ack ; and was paid by the plaintiffs, who ch ' ; " books to F. C. Stainback and the defe: !, at the date of the bill, any funds in the hands The plan from T ■•"■ I..'. ■ time a: and an rner'-f',.: . introduced in evidence the power of att k to F. C. Stainback, set out in the ni- ilso offered evidence to prove that t: - -'■ T842, the defendant and F. • ' 41, were in business in iback, S' - to no Son & Co., and also F. C ^' Virginia, in Petersburg, : L. E. Stainback. Son & ' TSthofP ,k, and * fbted vV Co., F, C. Stain bacK ireqn '•ftrol the p-' •' f iK iters, b<: ;v bearni;: ;vlich. T,(j Jungbluth, . rtain goods ns ot an order taken . , ' !*earl. The trial the defendant. :oods to defend- ' not mention to order. vere sent to de- ly a bill of the plaintiffs. A ic directii. " be remitted, is ;, Defer idence that after ice to I'. -ill he had asked .\'e it. T' r been any deal- • -ndant. .■ had previously 1 had paid him ;.e money. The 'TV Pearl's order, t( receive pav- . a .. .. V V i . -v L - . ^ i., lit and plai; i liave been c know anything it may ha>e u' jnuch or as little '^ him. The evidence here showed lawfully bind thern to any- rity, the plaintiffs could only . action, they liad induced defend- ,,,,. ,,, ;,,, 'or it}' to receive money for them. If they li :t l>efore, that might tend to sup- ,,:,„! — K„ ; ---.ver known each ent to Pearl for , , the sellers. •' from ascer- ; e agent ; '.sed he was /!,, 1, •,. he inquired lything that did ^ «v.Li.,v; , , uority or in some. no proof whatever of either ,,,.■,,■ .. and it makes no ■al, express and implied: ■♦ • h the end to be attain 1 CONTRACTS. 20/ of these essentials, and the payment, therefore, was entirely un- authorized, and in no way bound plaintiffs. The judgment was erroneous, and must be reversed with costs and a new trial granted. The other justices concurred. STAINBACK v. READ & CO. 1854. Supreme Court of Appeals of Virginia, ii Gratt. 281. This was an action of assumpsit in the circuit court of Petersburg, brought by C. C. Read & Co. against Littleberry E. Stainback. Upon the trial the plaintiffs introduced in evidence a bill of exchange, which bore the date of the 14th of December, 1842, and was directed to them, whereby they were requested to pay to P. C. & J. D. Osborne & Co. one thousand nine hundred and sixty-nine dollars and forty- two cents. The bill was signed by L. E. Stainback, by F, C. Stain- back, attorney, and by F. C. Stainback, and was endorsed by the payees and F. Stainback ; and was paid by the plaintiffs, who charged the amount on their books to F. C. Stainback and the defendant ; neither of whom had, at the date of the bill, any funds in the hands of the plaintiffs. The plaintiffs also introduced in evidence the power of attorney from L. E. Stainback to F. C. Stainback, set out in the next pre- ceding case. They also offered evidence to prove that up to some time about the beginning of 1842, the defendant and F. C. Stainback and another, who died in 1841, were in business in Petersburg as merchants, under the name of L. E. Stainback, Son & Co. That the defendant is far advanced in life, attends to no business, and that F. C. Stainback had the management and settlement of the business of L. E. Stainback, Son & Co. up to the time of his failure in 1843. That L. E. Stainback, Son & Co., and also F. C. Stainback, had an account at the Bank of Virginia, in Petersburg, in December, 1842, and previously, and that L. E. Stainback, Son & Co. were indebted to that bank until 1843. That on the 15th of December, 1842, the bill aforesaid was discounted by said bank, and the proceeds passed to the individual credit of F. C. Stainback, the draft not then having been accepted by the plaintiffs. That in managing the bank business of L, E. Stainback, Son & Co., F. C. Stainback frequently endorsed notes and bills last, that he might control the proceeds. The plaintiffs also introduced two letters, both of them in the hand- writing of F. C. Stainback, and addressed to them. One bears date September 21, 1842, and is signed "L. E. Stainback, Son & Co." The only part of it having any bearing on this case is as follows : 208 LIABILITY TO THIRD TERSONS. "I enclose some paper, for which please send me your notes, payable at Farmville, viz : My note dated 2d September, at 90 days, favor L, E. S. . . .$1,619.48 Do, do. 7th. do. do 1,941.67 3.561. 15 For which be pleased to send me your notes in favor of L. E. Stain- back, Son & Co., dated ist September, at 90 days, for $1,618.38, and dated 8th September, at 90 days, for $1,942.77, which will balance. You can use the notes if you wish. "L. E. Stainback, Son & Co. have $15,000 to pay on the 4th of next month, and I wish to provide myself with paper in time. Your notes you will make payable in Farmville." The second letter bears date December 15, 1842, and is signed "F. C. Stainback." In it he says, "I have yours of loth, handing your check for $1,000. Your draft fell due to-day, not on i6th, and I had to alter the date to 15th. I would not have used it if I could have avoided it. P. S. The draft of $1,740.92 is right. We had another discounted to-day for about $1,900. Will duly take care of them." The plaintiffs also introduced in evidence certain bills or drafts, one of which was endorsed by L. E. Stainback, by F. C. Stain- back, attorney, F. C. Stainback, and L. E. Stainback, Son & Co. ; and another was signed as the bill on which this action is founded is signed. The defendant offered evidence to prove that at the date of the power of attorney aforesaid the defendant was engaged in mercan- tile business in his own name in Petersburg, F. C. Stainback being a clerk in the defendant's house ; and that F. C. Stainback was at that time under age, and engaged in no business on his own account ; and that the firm of L. E. Stainback, Son & Co. was formed about 1836 or 1837. The evidence being through, the defendant moved the court to instruct the jury as follows : 1, That under the power of attorney given in evidence in this cause, F. C. Stainback had no authority to draw the bill on the plaintiff's, the payment of which constitutes the foundation of this action ; and that the drawing of such bill on the plaintiff's, and the payment thereof by them, did not authorize the said, plaintiffs to main- tain this action against him. 2. That if they believe, from the evidence, that the bill, the pay- ment of which by the plaintiffs constitutes the foundation of this action, was drawn by F. C. Stainback for his own benefit, and the proceeds thereof went to his own use, that it was not authorized by the power of attorney in evidence in this cause, and that it Avas the duty of all persons dealing with the said F. C. Stainback as attorney to notice the limitations of his authority, as the same was conferred drawn tiie ben; idant. if the jury i il the ev he defer: Liting th cause :■ and n •ney, to . the Vir^ a merchant in 1 -a tl CONTRAC; 209 he could only bind 1, ^al in such -^ crave lit a ok paymeiiL ,,. ,, was not drawn ' and transactin;.: ;k, but for his ov. ., ilie s:ad aiLunie_y had no po n-'T of the «:?.id.bill, so as to r the amount froni u . . ,.- -/^e first and fourth ii;. : third ; but qualified the same by further instruct- "•-Tent, F. C. Stainback, had the }x>wer, under de evidence in the cause, to draw the bill on ereof fr ■ ...:: ^. ■ !: to find iieve it Miiodatic •- Uli I ■;_:'■ ' nn the (if ther vould r. ft refusins: the first and fourth i -d to chi> court iur a supersede- ,»er ana' -ixfu $1,618.38, and 'h will balance. the 4th of next Tie. Yniir note? vou will 1 ville.'" i loth, handing : ;-.Ti jt •; •. , not on i6th, and I won": V e used it if I could : -mother discounted bills or drafts. v L. E. St.. 'jy F. C. Stain- ' •■'■^ L. E. Si M...-C. .s Son & Co. ; and which this action is founded is "yce to prove that at the date of the iant was engaged in mercan- -burg, F. C. Stainback being rind that F, C. Stainback was at -'-' business on his own account; -on & Co. was formed about , I irough, the defendant moved '^'^ " in evidence in this v^w the bill on the onstitut lion, of this -. U M11 ..., ill's, and the amtiffs tomain- iiin, tlie pay- t^c loiauiation of tV ■ his own benefit, and t . iuat it wa.s not authe^' .'••^ -reraise, r-'d that it back as :^ CONTRACTS. 209 by the said power, and that he could only bind his principal in such cases and upon such bills as were included in said authority. 3. That the power of attorney given in evidence in this cause gave no authority to F, C. Stainback to bind the defendant, by drawing or endorsing bills, etc., for the benefit of F. C. Stainback, nor unless the same were drawn or endorsed for the benefit and in the business of the defendant. 4. That if the jury believe from all the evidence in the cause, that the object of the defendant in executing the power of attorney in evidence in this cause was to enable and authorize his son, F. C. Stainback, the attorney, to attend to and transact the bank business of the defendant at the Virginia Bank, in Petersburg, the defendant being then a merchant in Petersburg, and the said F. C. Stainback being under age ; and that the bill, the payment of which by the plaintilts is the foundation of this suit, w^as not drawn by the said attorney in the course of attending to and transacting the bank business of the defendant at the said bank, but for his ovv'n use and accommodation, then the said attorney had no power to bind the de- fendant by the drawing of the said bill, so as to enable the plaintiffs, on the payment thereof, to recover the amount from the defendant. The court refused to give the first and fourth instructions, and gave the second and third ; but qualified the same by further instruct- ing the jury that the agent, F. C. Stainback, had the power, under the letter of attorney made evidence in the cause, to draw the bill on which this suit is founded, and subscribe the name of his principal (L. E. Stainback) thereto, in the manner in which it is done ; and that if the jury shall believe that the plaintiffs accepted the same, and paid it at maturity, without notice of, or just cause to suspect, any intended fraud or misapplication of the proceeds thereof from the use or bene- fit of the principal, that they then ought to find for the plaintiffs, though they may believe it was an accommodation acceptance. And further, that if the jury shall believe that no fraud or collusion with the agent is chargeable on the plaintiffs, then the fact that the said agent executed the bill in the name of his principal, L. E. Stain- back, designating himself as attorney, is equivalent to a declaration on his part that he was acting in the business and for the benefit of his principal : and that any misapplication of the proceeds by the agent after they came to his hands (if there was any) would not defeat the plaintiffs' recoverv. To the opinion of the court refusing the first and fourth instruc- tions, and instructing the jury as aforesaid, the defendant excepted. There was a verdict and judgment for the plaintiffs ; and thereupon the defendant applied to this court for a supersedeas, which was awarded. Samuels, J. — A proper analysis of this case will show that it turns upon two questions : 14^Reixhard Cases. 210 LIABILITY TO THIRD PERSONS. First. Whether F. C. Stainback had the authority of L. E. Stain- back, his principal, to draw the bill which is part of the foundation of this suit, or to subject his principal to an action on a collateral contract in regard thereto ? Second. If he had no such authority, is L. E. Stainback still liable for the act of the agent, because of anything in the dealing between the agent and the plaintiffs ? It may be laid down as a rule of law, sanctioned alike by reason and authority, that a power of attorney given to an agent, to act in the name and on behalf of his principal, in the absence of anything to show a different intention, must be construed as giving authority to act only in the separate, individual business of the principal. See Story on Agency, from g 57 to § 143 ; Atwood v. ]\Iunnings, 7 Barn. & Cress. 278; North River Bank v. Aymar, 3 Hill (N. Y.) 262; Stainer v. Tysen, 3 Hill (N. Y.) 262; Hewes v. Doddridge, i Rob. 143- . It is equally well settled that a party dealing with an agent, acting under a written authority, must take notice of the extent and limits of that authority. He is to be regarded as dealing with the power be- fore him ; and he must, at his peril, observe that the act done bv the agent is legally identical with the act authorized by the power. See cases above cited ; also i American Leading Cases 392, in notes. These rules of law. applied to the facts of the case, are decisive of the first question. The bill was not drawn in the business of L. E. Stainback, but in that of F. C. Stainback exclusively. It v/as not identical with a bill drawn in the separate name of L. E. Stainback. A joint bill imposes a joint liability on the drawers in case it be not honored. In case of loss in the business in which the bill is drawn, both parties are bound ; and in case one of the drawers be insolvent and the other solvent, as in this case, the whole loss must fall on the solvent party. If, however, a profit be made, it must be divided be- tween those jointly concerned. A contract such as this is widely dif- ferent from one in which the party liable for a loss, if one occur, is solely entitled to the profit, if one result. Again, the power, in any event, must be held to authorize the agent to draw such bills only as L. E. Stainback might himself have rightly drawn. In the case be- fore us, neither L. E. Stainback, alone, nor L. E. and F. C. Stain- back, jointly, had any right to draw the bill in question, having no funds in the hands of the drawees ; and having, at the time, no other reason to suppose it would be accepted. The drawer of a bill, when he negotiates it, is to be understood as affirming that he has the right to draw. In the case before us, L. E. Stainback is made to falsely affirm such right ; to commit a fraud by means of the falsehood ; and all this under color of the authority conferred by him. Under certain circumstances a principal may be bound by the act of his attorney going beyond his power, yet he can be so bound only to an innocent holder for value. Read & Co. are not holders at all ; thev knew co:v rfectly well that L. E. Stainback, either s< 1 v with an- - had no right to draw on them; that a y Iraw bills Uv would not extend to their house, in the e of busi- ;is between them and the drawers, or ' •■■\n. i of attorney authorized the agent to l. ecified :ng- the drawing of bills. This, as already to be ::v^nlying to the rightful drawing of bills .. -iness i. Within these limits the agent had g- ' 'z of his principal, and subject him to *^' ■> n 11 the case before us the defendant is i^- as drrr upon a liabilitv -.-^ he is SI. in alleged contr.'; e liie drawers anu acceptors, to make tlie <' i- ors. And all this is said to be implied in ti- i g : the circumstances existing at the time. It cannot be .ent may, by implied contract, bind his pri'-^ '' ' ^^'*- ts within which he might bind him by ex; be held that a power to draw a bill in itseli gn ^.-s mc =-> make another original and express contract to in- :r against his acceptance. If the attorney could > contract of indemnity, it is impossible to supnosc iplied from his drawing the bill, aestion has, to some extent, been anticipated ii^ ^v. ':. There are, however, certain considerations peculiar . »f the case which require some notice. It is well- lough an agent may in fact exceed his power, yet if - within its Hmits. and deals with innoc -^ j>al will be bound. Mann v. King. 6 . Aymar, 3 Hill (N. Y.) 262. It -. [ suffer the consequences of his ;er than they should fall on innocent vever well established, can afford r a a o; icts of this case. They dealt wi acting 1 of attorney, and as already sai' led as h that power before them.. The t their :ice the limits prescribed therein, terms ruction of la\\ . With this knowlc .,-, ... .idieless I contract, which is not one of those specihed in the power, ^i'J^nal contract to subject the drawers to a liability not inci- ;r position on the paper. They accepted the bill, having no ;K- drawe, knew that their acceptance \\ f'-k an) - i holder for value; they relie F. C. for indemnity ; this ■ letter *; ember 15, 1842, the 1 advising the drawees of the bill an ;, and '■•' 'ake care of it;" r>l'-. '.-•i"^i^' n-pir.i'r,. ,., ,. ;..•/,r^■h-^ vTnent at matin-i, is contai IRD PEI VVhethe' uithority of L. E, Stain- 11;^ principal a is part oi the foundation - «iiit. or tr. ro an artivn on a collateral •^tsirbnck still liable ng between e by reason and ;'ivcn : it, to act in the 1. m th. of an\ thing to vjritv to w.il. "See "uiins^fs, 7 Barn. .1 (X; Y.) 262; . Doddridge, i Rob. ror the act of the agent pn-i It mav ! ' Slor' iv (>, Tty dea! nn agent, acting vtent and limits •-h the power be- ll le act done by the . . by the power. See ^^eading Ca-^es 392, in notes, facts of the case, are decisive ut 1 drawn in the business of L. E. .ainback exclusively. It was not jiarate name of L. E. Stainback. ' on the drawers in case it be not i^iness in which the bill is drawn, -jii. one of the drawers be insolvent c. the whole loss must fall on the . be made, it must be divided be- >ntract such as this is widely dif- Hable for a loss, if one occur, is ■ ' V 'n, the power, in any ■iw such bills only as iuly drawn. In the case be- ! . nor I.. E. and F. C. Stain- bac-: • the bill in question, having no ■'■■ ' '■'•; having, at the time, no other . The drawer of a bill, when that he has the right ': is made to falsely iiicans of the falsehood ; and 1 rr';d by him. Under cert:;'n ;::rci!-i: -: ::';r, the act of Ilis .•• :.r'jiiiir bc\und :.... "in'T unl-, in nn i older for value. CONTRACTS. ' 211 perfectly well that L. E. Stainback, either solely or jointly with an- other, had no right to draw on them ; that a power to draw bills rightfully would not extend to their house, in the then state of busi- ness relations between them and the drawers, or either of them. The letter of attorney authorized the agent to do certain specified acts, including the drawing of bills. This, as already stated, is to be construed as applying to the rightful drawing of bills in the business of the principal. Within these limits the agent had authority to pledge the credit of his principal, and subject him to the consequent liability. Yet in the case before us the defendant is sued not upon a direct undertaking as drawer, nor upon a liability incident to his position on the bill ; he is sued upon an alleged contract to transpose the position of the drawers and acceptors, to make the drawers lia- ble to the acceptors. And all this is said to be implied in the drawing of the bill under the circumstances existing at the time. It cannot be held that an agent may, by implied contract, bind his principal be- yond those limits within which he might bind him by express con- tract ; nor can it be held that a power to draw a bill in itself gives the further power to make another original and express contract to in- demnify the acceptor against his acceptance. If the attorney could not make an express contract of indemnity, it is impossible to suppose that it can be implied from his drawing the bill. The second question has, to some extent, been anticipated in con- sidering the first. There are, however, certain considerations peculiar to this branch of the case which require some notice. It is well- settled that, although an agent may in fact exceed his power, vet if he apparently keeps within its limits, and deals with innocent parties for value, the principal will be bound. Mann v. King, 6 ]\Iunf. 428 ; North River Bank v. Aymar, 3 Hill (N. Y.) 262. It is but just that the principal should suffer the consequences of his own misplaced confidence, rather than they should fall on innocent parties. This rule of law, however well established, can afford no aid to Read & Co. upon the facts of this case. They dealt with an agent acting under power of attorney, and as already said, must be regarded as dealing with that power before them. They were bound, at their peril, to notice the limits prescribed therein, either by its own terms or by construction of law. With this knowledge, they nevertheless make a contract, which is not one of those specified in the power, but an original contract to subject the drawers to a liability not inci- dent to their position on the paper. They accepted the bill, having no funds of the drawers ; they knew that their acceptance would make them liable to any subsequent holder for value ; they relied upon the undertaking of F. C. Stainback for indemnity ; this undertaking is contained in the letter dated December 15, 1842, the day the bill was discounted, advising the drawees of the bill and its discount, and promising "to take care of it ;" obviously meaning thereby to provide funds for its payment at maturity. This undertaking is contained in 212 LIABILITY TO THIRD PERSONS. a letter from F. C. Stainback to Read & Co., given in evidence upon the trial. The letter is signed by F. C. Stainback with his own name only, is wholly upon his own business with them, and must be held to be an express guaranty by F. C. Stainback alone. This excludes all possibility of an implied guaranty by L. E. Stainback, either joint or several. The law, as here declared, required that the first and fourth in- structions should have been given ; and seeing that, by necessary legal intendment. Read & Co. did know the limits of the attorney's power, and that in making the contract sued on he was exceeding his authority, there was no foundation in the facts of the case for the qualification with which the second and third instructions were given. The court, therefore, erred in annexing such qualification. I am of opinion to reverse the judgment of the circuit court, and remand the cause for a new trial, with directions to give the four in- structions as moved for, if the evidence on the new trial shall be sub- stantially the same as on the former trial and if the instructions shall be again asked for. Allen and Daniel, JJ., concurred. MoNCURE and Lee, JJ., dissented. The judgment was as follows: It seems to the court here, that the power of attorney from Littleberry E. Stainback to F. C. Stainback, given in evidence on the trial in the court below, did not give authority to F. C. Stainback to draw the bill given in evidence, binding said L. E. Stainback as a joint drawer with F. C. Stainback; and that the circuit court erred in refusing to give the first instruction moved for by the plaintiff in error. It further seems to the court here, that the power of attorney, as between the principal and agent, gave no authority to the agent to draw the bill aforesaid for the accommodation of the agent ; and that the parties dealing with the agent, and having the means of knowing that the agent was exceeding his power in thus drawing the bill for his own benefit, cannot recover of the principal. It further seems to the court that the facts, that F. C. Stainback held the bill and had it discounted for his own benefit ; that he wrote the letter of December 15, 1842, addressed to the defendants; that they accepted, after receiving that letter, and charged their accept- ance to F. C. Stainback, if believed by the jury, taken in connection with the written evidence, were sufficient to show that the defendants had the means of knowing that F. C. Stainback, the agent, in pro- curing the acceptance of defendants, was procuring it for his own accommodation and not that of his principal ; and that the principal was not bound ; that the court below should have so instructed the jury, and that it erred on plaintiff's second motion to instruct. It further seems to the court here, that the court below erred in its action on the plaintiff's third and fourth motions to instruct ; that it should have given the instruction above stated as proper to be given 213 to instruct. There^" ^d-by the '^■•'-■'--nt be re"- ^'^-- ^' - • dants h . lor a dl be TOWLE \ £ME Court of New Hampshire. 23 " 1 phaeton, of tl-.e v~'>:- of fifty dollars. der an agreement .......... .c....... ...: ... ...J then sell it if e.d him to sell it for forty-five dollars if po ' ' much, to take forty dollars for it. i.ant; an attachment and advertised to be sold. the sale of his property was over, p the phaeton in suit for sale, ha^- a. person to bid, with directions not to let r,,r-r.. .",-,*! A r:;^ fhe Carriage was stru^^l^ '-'^ . een dollars, and he pa; riage. v^tion, testified t; struck oir at hib ..as made to hir- h the defendant ^ ^ property un' ul d the defen same ist Tp);. Co.. 5 B. & a. 203. S- •n thev Vnovr to ^? an Tf^mf ^nd -•MX .'. ■, I ., : Assn. Co. V. ALir. dence upon - own. name ust be held his excludes , cither i'^inf and I- t, by necessary lov ;'- f the attorney's IS exceeding his ase for the were given. t court, and •ive the four in- '• 1 '^hall be sub- instructions -tainback ; ■ i . ...uainback as a , circuit court erred r by the plaintiff in > power of attorney, to the ; acrent ; . ad havr of knowing ^\V{-r in: • he li: I ' 1 1 .r it he wrote back, the agent, in pr- ,,-,,>,.,■, ,T,^ ;; ff)r his ow\: ':ie princir.^i; CONTRACTS. 213 on the second motion to instruct. Therefore, it is considered by the court, that the said judgment be reversed and annulled; that the plaintiff recover of the defendants his costs in this court expended ; that the verdict of the jury be set aside, and the cause remanded for a new trial to be had therein ; upon which trial, if the evidence shall be the same in substance as that at the former trial, the circuit court shall conform its action to the principles hereby declared.^ TOWLE V. LEAVITT. 1851. Supreme Court OF New Hampshire. 23 N. H. 360. Replevin for a phaeton, of the value of fifty dollars. Plaintiff, the owner, left the carriage with one Lane, under 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 an 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, hav- ing 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. Ricker, the person employed by Lane to bid, testified that he bid seventeen dollars, and that when he heard the carriage struck off at his bid left the place, under the belief that the sale was made to himself. The court in- structed the jury that although the defendant was a bona fide bidder, he would not acquire title to the property unless he was in fact the highest bidder ; that if Ricker and the defendant both bid the same sum, and the auctioneer did not notice Picker's bid and struck off the property to the defendant, and no objection was made thereto, be- cause Ricker supposed it to be struck off to himself, still he acquired no title, unless he was in fact the highest bidder ; that Towle, having * See Murray v. East India Co., 5 B. & A. 203. See also Veatch v. Gilmer, (Tex.), Ill S. W. 746. "Persons dealing with one whom they know to be an agent and to be exer- cising his authority for his own benefit, acquire no rights against the principal by the transaction. Such a transaction is usually and perhaps properly spoken of by the courts as fraudulent, but however honest the intention of the parties, the agent's act is invalid mainly because circumstances known to both prove it to be ultra vires." Dixon, J., in Dowden v. Cryder, 55 N. J. L. 329, 331. See also Equitable Life Assn. Co. v. Poe, 53 Md. 28. 214 LIABILITY TO THIRD PERSONS. 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 un- less 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. Eastman, J. (After disposing of another point) — The questions 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 con- clusion 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 agent to inquire into the nature and extent of the authority conferred by the principal, and to deal with the agent ac- cordingly. Snow V. Perry, 9 Pick. 542 ; Story on Agency, § 133 ; Deming v. Smith, 3 Johns. Ch. 344; Schimmelpenic v. Bayard, 1 Pet. 264, 290 ; Hatch v. Taylor, 10 N. H. 547. 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 Agency, § 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 or- dinary 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. Story on Agency, § 94 ; Paley on Agency, 167 ; 2 Kent's Com. 621 ; Pickering v. Busk, 15 East 38; Saltus v. Everett, 15 Wend. 267; Dyer v. Pearson, 3 Barn. & Cress. 42; Hern v. Nich- ols, I Salk. 288 ; Sandford v. 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. 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 preced- ing 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 posses- sion was his as would protect him from the claim of a bo}ia fide ihat thi- .' ; ' ', ot Lane, which had be< . c./disi-v — ^ ■• -- ''•- •■•- n terms, but ;ind ■It that the carr;a^,L ue;:;!' .jver ,0 been, we think that tlie was ' ' ■ b Lane's circ; ich- - ■property, a; oon . ..^....... ......... ...ana was '-i'' in selling- the property, or i..' property was ■ ■ ■ '^cd as to piu uestion arises, ^ he private 1 i ivitt, not to sell :iK; carnage under { ■ a limitation \r> bis atitborit-v', or j, .general agent. . . c. , .^ - tters coming within the proper and legitimate scOi ♦o i>- transacted, although he violates by these cv . i.i^ ' 1 ' ns ; for his authority cannot be limited by any pri- . unless known to the person dealing with him- ckett, 15 East 400; Lightboy v. North American I. 22; Lobdell V. Baker, i Met. 202 (35 Am. Dec. - a special agent, the law appears to be eqi ' ' " above quoted^ that if he ex not bind hi? principal. Btit between specific i 1 the private instructions given t s limited in a bona Ude m-' ■ ' - by the agent, and is d) - ""rture from such auf ! : but where the am • of sucii a nativ vould not .y was made (e\ i.i^ i-l^<~- •' ! the agent to m. ; made, for it w^.'ui. 1,1 u r. 10 N. H. 538; Bryant ')i the qvu' ' •rre for '■ 1 w ( ^n i'KRSONS. s than forty dollars, he „ Hmitatiou was intended lied that the limitation was J was limited by it, and un- forty dollars, he could not which the defendant moved point) — The questions II are presented by the c more . already considered, and it has I ..-^ii., ^h ' .--Miri !-.M,-,. irrived at ■' '^■'T- ■s !)' •; ;.; uvitt knew mat ) the pki : ! owever, would be ni;: not, net . avitt to inquire into ;■ iCy in s. roperty. If an agenc\ ial, it i$ the duty of the party who ■ipi'- into the nature and extent of the , and to deal with the agent ac- IV i^- 54-" '''^ ^n Agency, § 133; '1. 344; ilpenic V. Bayard, T, 10 N. li. . Known,- and ;. :})al has clothed I to induce inn ' ,T Agency, 167; Itus V. Everett, 42 ; Hern v, Niclr make and sell ) s shop for that v iowle. If Lane's sole -., the deposit of the one principle of the preced- . r: purchaser would have no :•■ 'i carriage in Lane's posses- . ptoicci 'le claim of a bona fide CONTRACTS. 21 5 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 mav have been, we think that the situation of the property was such, taken in connection with Lane's circumstances and the attach- ment and advertisement of his property, as to put a purchaser upon inquiry. Assuming that Leavitt knev/ that Lane was acting as the special agent of Towle 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 Leavitt. not to sell the carriage under forty dollars, were in the nature of a limitation to his authority, or were instructions not to be disclosed. The acts of a general agent, known as such, govern his principal in all matters coming wuthin 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 pri- vate instructions, unless known to the person dealing with him. Whitehead v. Tuckett, 15 East 400; Lightboy v. North American Ins. Co., 23 Wend. 22; Lobdell v. Baker, i Met. 202 (35 Am. Dec. 358) ; 2 Kent's Com. 620; Allen v. Ogden, i Wash. 174; Story on Agency, § 126; Paley on Agency, 200; Penn v. Harrison, 3 T. R. 757; Mann v. 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 au- thority given, his acts will not bind his principal. But it is to be ob- served that a' distinction is to be taken between the limited authoritv of a special agent, one appointed for a specific purpose, to do certain and specified acts, and the private instructions given to such agent. Where the authority is limited in a bona Ude manner, and the limita- tion is to be disclosed by the agent, and is disclosed either with or without inquiry, any departure from such authority or instructions w'ill 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 binding upon the parties dealing with the agent. And if the instructions are of such a nature that they would not be communicated if an inquiry w^as 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 v. Taylor, 10 N. H. 538 : Bryant v. Moore, 26 Me. 84 (45 Am. Dec. 96). L^pon this view of the question, it w'ould 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, how'- 2l6 LIABILITY TO THIRD PERSONS. ever, may admit of some doubt, and were the case to turn upon this point, a more minute examination would perhaps be necessary. But it appears to the court that there is one point that must settle the case for the plaintifif. 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 incumbent 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 re- duce 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 defendant's 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 consequence, 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.^ * * * Judgment on the verdict.- BAKER V. KANSAS CITY, ETC., R. R. CO. 1886. Supreme Court of Missouri. 91 Mo. 152. Brace, J. — This action was brought to recover damages for the failure of defendant to furnish a certain number of cars, at certain stations, on a specified day. The petition alleges, "that at the times hereinafter mentioned the defendant was, and it still is, a corpo- ^A portion of the opinion is omitted. ^ "The authority of an agent must be determined by the nature of his busi- ness and the apparent scope of his employment therein. _ It cannot be nar- rowed by private or undisclosed instructions, unless there is something in the nature of the business or the circumstances of the case to indicate that the y cl in the mon carrier for the 271; ., :u consicU"" '■"•••■• •'•■■I ^;->e^- that he wc City and Man.Ki.uG, .. mj-^lu!. , i88r, rr-adv for shipment, r. '^aid stations of ity ana V, i88r, 23 oars . . . ness to r. . id cattle and iiop^s as aforesaid; that : ertaking anc • ^^ drove his ? iOns. afid on rst day of Vi. ■ be shipped ov ..tie and hogs si.^ ^i:ates that the defen : _, ..reement, failed to prov:... I ess, at its said stations or either of them, o 1 88 1, any cars in which to receive and t..-, - IS aforesaid, and did not furnish or provide such , 1881, by reason of which said failure ars, at the time and places agreed iipon :"5 said cattle were detained at said stat 'uld not, be sIvd- ■' therefrom on their -•, day of Jun. > plaintiff's dam;: then specific ticulars of tb" • ; defendant" Defendant' he Dnngs the co * ih;- .-rvirt It, '■ nt, and that he had — committed by tht ,•; -^•- Mrr,^U'A ,,nv 4^/-44J 2l6 '-: ■ ii: v.'i . .i 1 • , L..|ll.J 1 LI M - c niinul cessary. point, that nnist settle • id at auction ; and this rity or instructions ilant, knowing the 1 not know it, the situation ... incumbent on him to make seeing it exposed to sale in an c right of l.ane thus to sell it ' nltv would have been avoided, '' rty dollars be or as private 12V it auction, and no m. . j.._.i implies a sale at an V the last resort to re - on: -■ to ratify the doings ot \'ho should pursue that To\ '^i?ed Lane to sell been properly . • :< ;s case might we iind nothinj.; ihat would warrant ns desired in this respect. A court le jury upon any supposed state of necessary consequence, l\, and cannot sustain his been error in some of the iS'^ lissouRi. 91 Mo. 132. ~ recover damages for tlu :' :' - of cars, at certain , ''that at the time- he , and it still is, a corpo iendatit b;... .... . n agents at ea... . .- - \ J prove that the contract was made between Smith at the office of the sr-eneral freight agent at St. Jv sv. -^ ^ '^-e vjou';; occasion plaintiff's cattle had been shipped i road upon a contract ma '1 •. ^'•eneral usage and cu.>(.ora of defen'; rnaku-- - - contract was with-t- Oie apparent and or'iin -. ' , ':.\>}:>; and if he Mi authority ;l tnc '!eic;ia: !; l .[ him out, vi ited Smith to I self out, to piauitiff and the world as naving such power. Th tract itself slv '\\ s that Smith held himself out to plaintiff as 1; the power. to nake the contract, and also that plaintiff l>eiiev€f Smith did have such power. Was he justified in entertaining that belief, and acting upon it bv reason of the apparent authority with which the defendant had clothed him I* At the time this contract was made the defendant was h( ' :ith out to plaintiff and the world as its general freight ..„ ^^ it had been doing for more than a year immediit^-Mv preceding that date. It had conferred upon him the title, and - him in ' ■ ". in that department of its business, r] the trai freight from one place to another fo- i in ■ : ■ ' . ss it held Sr ' '" liv It, as one au ; (U in .that particular line or de lin ^ . jsiness Smith was held out, ing authority, but as having general authority; good fairii requires tiiat the principal should be ^ of the atjeut within tlie scope of his general id can have no effect on the r remedies lio have no- knowledge of the .>.... .v ti'^r^'^ '^'- ■''^' apparent authority. Grafius v. Land . and can be no legal : ,1 on any different foe. . iii regard to the same business. AU^iin.^ "■> Baker a v. Mo. P uat the contract was . hief: "On May 27 I 1 • in St. Joe. I mei ... -vxi .^.iu igeiii. ui' the Kansas City '. Bluffs ' wanted twenty -three cars on \':itn at Maitland, for Chic.";' id he said he could, and c! had requested me to do. r. Smith. I did not see any ot'.' •1: ''T toV) him (Smith) I wa:. . :iid — eig'ht at Moun<' :... ;. . ... 1 have the cars. He ! would bring the cattle in ; I said '; and gave him the order. I toUl id that, if I had the assurance of ■ ■>. c' :\ said he would have th*. . ..vision. He then called the cars. I suppose the clerk did '■ : .iitir^ ('ir^Mlinn. Nolhine fn''\ r^nce of the minds of both parties ertaking having the same object iii 't's cattle to Chicago in defendant's '^t of coinmon sense and ordinary promises from each to the other — ;iish the cars at the staciolis named of plaintiff being to have his cattle stated, the promise of each being lise of the p'-- 1 upon wl ^'• ■ ' - .:. that S- . .: ,...-. .- .m/ .:.;vocally I. ■ j' May and June, 1881, Smith : to that date had been, de- iiis office, as such, was at St. yond the terminus of defend- was carried to that city from ' ■ jgo. Bur!" ' " ■ ' ■t: exict-' oil dcfeau- I CONTRACTS. 2ig ant's railroad at some distance from St. Joseph, and from each other ; that defendant had station agents at each of said stations ; and tended to prove that the contract was made between plaintiff and Smith at the office of the general freight agent at St. Joseph; that on a pre- vious occasion plaintiff's cattle had been shipped from Kansas City over defendant's road upon a contract made with Smith, and on a previous occasion plaintiff had applied by mail for cars to the office of the general freight agent. The foregoing is all the evidence re- lied upon in this case to show that Smith had authority to make the contract sued on. It may be conceded that there is nothing in the evidence tending to show that authority to make the contract sued on had been expressly conferred upon the agent, Smith, or that, ac- cording to the general usage and custom of defendant's railroad, the making of such contract was within the apparent scope of his usual and ordinary duties ; and if he had such authority it is because the defendant held him out, or permitted Smith to hold him- self out, to plaintiff and the world as having such power. The con- tract itself shows that Smith held himself out to plaintiff as having the power to make the contract, and also that plaintiff believed that Smith did have such power. Was he justified in entertaining that belief, and acting upon it by reason of the apparent authority with which the defendant had clothed him? At the time this contract was made the defendant was holding Smith out to plaintiff and the world as its general freight agent, as it had been doing for more than a year immediately preceding that date. It had conferred upon him the title, and placed him in that position, in that department of its business, devoted to the transportation of freight from one place to another for hire, and in that particular line of its business it held Smith out to the plaintiff and the world as its general agent, as one authorized to transact all defendant's business in that particular line or department. In that line of defendant's business Smith was held out, not merely as hav- ing authority, but as having general authority; "and in such cases good faith requires that the principal should be held bound by the acts of the agent within the scope of his general authority." Story Ag., § 127. When the principal puts the agent forward as a general agent, or places him in a position where others are justified in the belief that his powers are general, the restrictions that may be imposed pri- vately on the agent will be immaterial, except as between him and the principal, and can have no effect on the rights or remedies of third persons who have no knowledge of the restrictions or limita- tions upon his apparent authority. Grafius v. Land Co., 3 Phila. 447. And there is no reason, and can be no legal principle, that will put the agent of a corporation on any different footing than an agent of an individual in regard to the same business. Adams M. Co, v. Senter, 26 Mich. yT,. Henry, J., in Grover & Baker S. M. Co. v. "Slo. Pac. Ry, Co., 70 220 LIABILITY TO THIRD PERSONS. Mo. 672, in distinguishing the powers of a special from those of a general freight agent, approved the doctrine laid down by Suther- land, J., in Burtis v. Buffalo & S. L. R. Co., 24 N. Y. 274, "that if defendant had the power to make, or authorize the making of, such a contract, then the person acting as the general freight agent should be deemed to have been clothed with all the power to make contracts for freight, or in respect to the carrying and delivery of freight that the principal had." There is no question as to the power of the defendant to make the contract in this case, and it was a con- tract for freight — a contract having for its object the shipment of plaintiff's stock over defendant's road for him, on a certain day, from two of its stations to Chicago. The leaving the cars and the cattle at those stations on that day was not the end and object of the contract, but means by which the object was to be accomplished. "A grant of general authority includes within it all the necessary and usual means of executing it with effect, and all the mediate pow- ers necessary to the end, and incident to the primary power, although not expressly given." Story, Ag., § 58. From the foregoing it appears that the defendant, having put Smith before the world as its general freight agent, clothed him with the apparent power to make all necessary contracts in the line of business committed to his general control. A necessity of that line of business being that shippers shall have furnished them at par- ticular stations, at certain dates, cars for the shipment of their freight. Pruitt v. Hannibal & St. J. R. Co., 62 Mo. 528. He was clothed with apparent authority to make the contract sued on ; and when plaintiff, having freight which he desired to ship on defend- ant's road from two of its stations on the same day, to a point be- yond the terminus of defendant's line of road, needed cars for its transportation at such stations on that day he had a right to assume that such general freight agent had authority to make the contract. On a former occasion when plaintiff desired to ship this same stock on defendant's road, on application to Smith it was shipped. The evi- dence fails to show that any other officer or agent was held out as authorized to make the contract. Plaintiff had no right to assume that either of defendant's station agents could make a contract for cars at the station of the other, or that either or both of them had such authority as would enable them to have the cars at both sta- tions at the same time ; so that on the face of the transaction Smith not only had apparent authority to make the contract, but there was no ground for an assumption on the part of plaintiff that any other officer or agent of defendant had that authority. It follows that, if the defendant had imposed any limitations upon this apparent au- thority of its general freight agent, such limitations could not affect the plaintiff unless brought to his knowledge, and this was a ques- tion of fact to be submitted to the jury; and the evidence in the case tending to show that Smith, the general freight agent, had au- thority contraci ^^'^ct Wn-.^ '"■" ■!■ . ! s for the aad tiu. liiclcu i 1867. Suj^REME Court of , ,ie plaintiff brought this action to ^eco^ iii a bill Oi goous, sold by him to the defendant. Tb-. ■ i \ f n.i i'iods were not denied, and the only qu.. •;" lal was whether the defendant had paid f''- ut the time of the tr-- ■ ^'-'-^ ■ ^ mi inip^i.t... ■ i ig- business in the c -. and tlie de- . store of i.iv jew i'ork, oi one j. a uiii of ea*' ^v" o the sum of ^'t; ce 1 wenty dollar: 't appea: le evidence in the cause thai >., .....V,, , . '^'^ '■■^' ■ •' •■-^ -•■'] goods f'-"' '■''"■' '"'*"'' ■ out any sal,! The ^ !ie. r. irc rr-, (^ ana to< for 11. ititf, an^ IIRD PERSONS. special from those of a laid down by Suther- . . 24 N. Y. 274, "that if vvitii ail tijc power tv make ihe carrying and delivery of re is no question as to the power 'Ct in this case, and it was a con- ■ z for its object the' shipment of . ' ' ' :. on a certain day, 1? the cars and the • of the vd. "A try and .,, 1;^ ...^-..a.te pow- •id incident to the primary power, ""'"—■ Ag., § 58. the defendant, having put nt, clothed him racts in the line •i. A necessity of that f urn*:-hed them at pai'- ;)ment of their >. 528. He was :t sued on ; and ro ship on defend- day, to a point be- «d, needed cars for its ;^ had a right to assume ■ make the contract. ; ihip this same stock ; Smith it was shipped. The evi- *^'--- '-- -• •■'^ - -■ held out as to assume could make a contract for either or both of them had :^ have the c th sta- nce of the tr . Smith the contract, but there was ' f plaintiif that any other rity. It follows that, if '' ' tnt au- affect ■• ixa a ques- .;nce in the uuiijg to show tliat i freight agent, had au- CONTRACTS. 221 thority to make the contract, and that he did enter into such con- tract with plaintiff, and the failure of defendant to furnish the cars for the shipment of plaintiff's stock, to his damage, having been satisfactorily shown, we think the court committed error in taking the case from the jury; for which cause the judgment is reversed, and the case remanded for new trial. LAW V. STOKES. 1867. Supreme Court of New Jersey, 32 N. J. L. 249. Depue, J. — The plaintiff brought this action to recover the amount of a bill of goods, sold by him to the defendant. The sale and de- livery of the goods were not denied, and the only question in con- troversy at the trial was whether the defendant had paid for them. The plaintiff, at the time of the transaction, was an importer of earthenware, doing business in the city of New York, and the de- fendant the keeper of a hotel at Long Branch, in this state. On the fifth of July, 1865, the defendant purchased, at the store of the plaintiff, in New York, of one J. B. Sheriden, a bill of earthen- ware amounting to the sum of three hundred and twenty dollars and thirty-seven cents. It appears from the evidence in the cause that Sheriden was employed by the plaintiff to sell goods for him, with- out any salary, for a commission on his sales. The goods in ques- tion were sold on a credit, and were to be paid for on the first day of the next August. The goods were shipped to the defendant on the sixth day of July, 1865, and on the same day the plaintiff" wrote the defendant a letter, of which the following is a copy : "Mr. \V. Stokes, Long Branch : "Dear Sir — I beg to hand you bill of ware purchased by you, and duly forwarded as per direction. I trust you will find all satisfac- tory. Please remit amount direct to me. "$320.37. Yours truly, "Henry D. Law. "August I, 1865." Enclosed with the letter was a bill of the goods, in the name of Henry D. Law, as vendor, in the heading of which was printed plainly and conspicuously, in red letters, "all remittances on account, or in settlement of bills, must be made direct to the principal ; sales- men not authorized to collect." On the sixteenth of August, 1865, the defendant paid Sheriden for the goods, at the defendant's hotel, at Long Branch, and took from him a receipt for the same, signed, "J. B. Sheriden, for Henry D. Law." Sheriden never paid the money to the plaintiff, and has left the country. 222 LIABILITY TO THIRD PERSONS. The fact of this payment to Sheriden is not disputed, but the plaintiff insists that Sheriden had no authorit}- to collect the money, and, therefore, the payment to him is no discharge. Sheriden was a mere salesman for a commission. As such he had authority to sell goods on credit, but not to discharge purchasers from debts incurred by them in purchasing goods through him, of the plaintiff. An agent employed to make sales, and selling on credit, is not authorized subsequently to collect the price in the name of the principal, and payment to him will not discharge the pur- chaser, unless he can show some authority in the agent other than that necessarily implied in a mere power to make sales. Seiple v Irwin, 30 Penn. (6 Casey) 513. Such authority may be shown by proof, either that the agent was expressly authorized to receive and discharge debts, or that he was held out by his principal to the pub- lic, or to the defendant, as having such authority. A principal is bound by the acts of his agent within the authority he has actually given him, which includes not only the precise act which he expressly authorizes him to do, but also whatever usually belongs to the doing of it, or is necessary to its performance. Be- yond that, he is liable for the acts of the agent within the appear- ance of authority which the principal himself knowingly permits the agent to assume, or which he holds the agent out to the public as possessing. For the acts of his agent, within his express authority, the principal is liable, because the act of the agent is the act of the principal. For the acts of the agent, within the scope of the author- ity he holds the agent out as having or knowingly permits him to assume, the principal is made responsible, because to permit him to dispute the authority of the agent in such cases would be to enable him to commit a fraud upon innocent persons. In w^hichever way the liability of the principal is established, it must flow from the act of the principal. And when established it cannot, on the one hand, be qualified by the secret instructions of the principal, nor, on the other hand, be enlarged by the unauthorized representations of the agent. These principles find ample illustrations in the elemen- tary books and in decided cases, i Parsons on Cont., 44, 45 ; 2 Kent 620, 621 ; Mechanics' Bank v. N. Y. & N. H. R. R. Co., 3 Ker- nan, p. 632, per Comstock, J. ; F. & M. Bank of Rens. Co. v. Butch- ers' and Drovers' Bank, 16 N. Y. (2 Smith) 125; Story on Agency, § 127; Dunning v. Roberts, 35 Barb. 463; Thurman v. Wells, 18 Barb. 500; i Am. Leading Cases 567 (fourth edition). Where an agent is entrusted with the possession of goods, with an unrestricted power to sell, (Higgins v. Aloore, 6 Bosw. 344), or pay- ments are made over the counter of the principal's store to a shop- man accustomed to receive money there for his employer — Kaye v. Brett, 5 Exch. 269 — the authority to receive payment will be implied in favor of innocent persons, because the principal, by his own act, gives to the agent an apparent authority to receive such payment. CONTiL.\CTf ---.S it the principal forbids such payments, lyments • made to himself personally, or to a i_.;v . - cus- : notice thereof, the customer would ha^ sist I rather than - before the The sale was m.!.iic on a err' ■ not over the plaintiff's coun' , ess, but at the defendant's hotel. In most resf i- ^o that of Seiple v. Irwin, where the payment ined. He had no express authority to col: oi\ nor was there any : ' that the pla;v.' > the public, or to the c; as having such - the plaintift' ex Is, that the Viioj . d be remitted dn - That letter, it received by the defendant. The weight of the evi; , tirr ^v i; -r^nt and was received before the paymen. .. independent of that, the evidence on the A's that the bill, which was produced by him ;■• before the goods were unpacked, and that hi? ^on. keeper, and had charge of r^ ds on the bill, and told the o. orrtct. The defendant testified that he never saw the bill, ur.. the ayment was made to Sheriden, and the son says that he did not read ' ' '• ■• '■ •■ bill — that he had not time to do it. The r^-- --^ nee and good faith required of him, to r in regard to the rr ■ the shipment of tl' • tiie dciendant, , him tc !n it the bill of th . ^ _ . on the fa printed a notice, that salesmen w^ere not authorized hv.) • i.nst^ Yvas in the hands of the defendant"- er, and authorized to pay bills, and the bill, and who mu wno -^y len. X ■.T'ns ■rt^r e to ', and open the 1, espe- -■<^ bound to sc c the per- 3S, as an a^ the author- 'L- a.— ., another v. luoriiujn, 3 C. & P. 't a par is. In that case the defendq^nt ai principal, wit; the price of ii, and the u' was the vendor's tic IBD PERSONS. . fact of thk pr eriden is not disputed, but the ;., : ^., ^j^^j gj^, ^^ authority to collect the money, , the pay ^s no discharge. ; was a m ■; - ommission. As such he had to sell gr lot to discharg'e purchasers iioiii (i^u'ts incurred goods through him, of t'lv . ': ririff. An :c sales, and selling on ■ to collect the price in the name liim will not discharge the pur- •e authority in the agent other than IV- . - . ■ ;re powv" -jke sales. Seiple v i.w-.!; >>; T'oTi! .. Sucf '• may be shown by ■ I to receive and -ipal to the pub- ;ig such icts of li. .-, - within the authority •ch includes not only the precise act urn to do, but also whatever usually r. necessary to its performance, Be- acts of r r within the appear- iicipal hi wingly permits the ne holds the aj^^nt out to the public as his agent, within his express authority, he act of the agent is tlie act of the .gent, within the scope of the author- iiaving or knowingly permits him to responsible, because to permit him to ent in such cases would be to enable hiiii . unocent persons. In whichever way the li . - ''stah]i«'hcd, it must flow from the act of th 1 it cannot, on the one h7n\^ T.f .„ ii of the principal, nor, the unauthorized representations ; ample illustrations in the elemen- I Parsons on Cont., 44, 45 ; 2 ^ " '^ ^ TI. R. R. Co., 3 Ker- , j^ens. "Co. V. Butch- ■ 125; Story on Agency, ^, ^, Thurman v. Wells, 18 ,300; I Am. fourth edition). •-^ •'.n .agent possession of goods, with 2.^, d power Loore, 6 Bosw. 344), or pay- principal's store to a shop : for his employer— Kay e . DroLt, 5 Exch. :^v.>9 — ll payment will be implied :n fn^-o^ r,f -nnoccnt r • inrion,]. by his own act, such paymc CONTRACTS. 223 But if the principal forbids such payments, and requires all payments to be made to himself personally, or to a cashier, and gives a cus- tomer notice thereof, the customer would have no right to insist upon the apparent rather than the real authority of the agent. In the case now before the court, Sheriden had not the possession of the goods. The sale was made on a credit, and the payment was made to him, not over the plaintiff's counter, at his place of busi- ness, but at the defendant's hotel. In most respects, the case is simi- lar to that of Seiple v. Irwin, where the payment to the agent was not sustained. He had no express authority to collect the debt in ques- tion, nor was there any evidence that the plaintiff held him out to the public, or to the defendant, as having such authority. The letter of the plaintiff expressly directs, that the mone}- for this bill should be remitted directly to him. That letter, it is said, was never received by the defendant. The weight of the evidence is that that letter was sent and was received before the payment was made to Sheriden. But independent of that, the evidence on the part of the defendant shows that the bill, which was produced by him at the trial, was received before the goods were unpacked, and that his son, who was his book-keeper, and had charge of receiving those goods, ticked off the goods on the bill, and told the defendant that it was correct. The defendant testified that he never saw the bill, until after the payment was made to Sheriden, and the son says that he did not read the heading of the bill — that he had not time to do it. The plaintiff did all that prudence and good faith required of him, to prevent the defendant falling into an error in regard to the authority of his salesman. Immediately upon the shipment of the goods, he wrote the letter to the defendant, requiring him to remit direct to him, and enclosed in it the bill of the goods, on the face of which was printed a notice, that salesmen were not authorized to collect. That bill, at least, was in the hands of the defendant's son, who was his book-keeper, and authorized to pay bills, and had charge of com- paring the goods with the bill, and who was present when the money was subsequently paid to Sheriden. Not to have seen the directions in the bill-head was the grossest negligence, and to permit a party to defend under the protection of his own carelessness, would be to offer a premium for negligence, and open the door to fraud, espe- cially so when the party is himself bound to see to it, that the per- son with whom he transacts business, as an agent, has the author- ity which he assumes. Capel and another v. Thornton, 3 C. & P. 352, is not a parallel case with this. In that case the defendant dealt_ with Ellsworth, the agent, as principal, without any knowledge of his agency. The coal, for the price of which the suit was brought, was ordered of Ellsworth, and the defendant paid Ells- worth. The only evidence of notice of his agency, before the bill was paid, was the vendor's ticket, sent with the coal, and delivered 224 LIABILITY TO THIRD PERSONS. to the defendant's footman, and not shown to have reached the de- fendant. After the payment was made, a notice was sent to the defendant, by the plaintiffs, to pay the amount to them, or to their clerk and not to Ellsworth. The defendant had no knowledge of the agency, and the footman w-as not her agent in relation to that business, and the notice which the defendant did receive came after the payment was made. These circumstances render that case wholly unlike the case now before the court. It was further insisted, on the argument, that there was evidence of a subsequent ratification, sufficient to go to the jury. It does not appear that any such question was raised at the trial, and if it had been, there is no evidence in the cause that would have justified the jury in finding a ratification by the plaintiff of the unauthorized payment to Sheriden. The verdict is against the evidence, and contrary to law, and should be set aside and a new trial granted ; costs to abide the event. DAYLIGHT BURNER CO. v. ODLIN. 1871. Supreme Judicial Court of New Hampshire. 51 N. H. 56. Assumpsit, by the Daylight Burner Company against James W. Odlin, an expressman, for delivering goods marked "C. O. D." without receiving the price. The plaintiff is a corporation, doing business in the city of New York. The defendant is an express- man, between Boston and Exeter. The plaintiff' sent from New York, by Adams's express, a package of goods directed to one Berry, Exeter, N. H., and a bill of the same, for $55.80, from the plaintiff* to Berry, marked "C. O. D.," which, by the usage of express business, means "cash on delivery," and imports an order that the goods are not to be delivered to the consignee unless he pays the amount of the bill, which the expressman is to return to the consignor ; and such was the understanding of the plaintiff and the defendant. The defendant carried the goods and bill from Bos- ton to Exeter, and Berry refused to pay the price, alleging that, by the terms of the bargain under which he was to receive them, he was not to pay for them cash on delivery. The bargain with Berry was made by one Moore. Upon the refusal of the defendant to de- liver the goods to Berry without payment of the bill, a correspond- ence ensued between Berry and Aloore ; and Berry received from Moore, and gave to the defendant, a written order from Moore to the defendant, directing- the defendant to deliver the goods to Berry "without C. O. D.," and the defendant delivered them accordingly without payment. the sec- u'cr, u-iivl gr 1 one of cctors of the ^ cIp, find rs for some of the plaintitt s ,., ■ , \. .i jm the plaintiff ten per cent, oi -. plaintiff's goo- Is; that he made several sa no interest in the corporation or its good:^ , t itv to sell the plaintiff's goods on anv other f^ !' ry ; that he had no authority ' a! i that the order was given an. of the plnintif'^. The defendants evidence .tend. -^^.I t, , =;how that, ; made by Moore with Berry, Bc: lOt to pay • ■cash on delivery. . The court instructed the jury that there was evidence to cn-i'Icr ' .''"'-' was an age' rlni':* :'■ ■ ds; that if ti. . ; between uic plctiutilf and Moore, that Moorv .... .. ...1 the plaintiff's goods for cash on delivery,, t!' it he was to receive from the plaintiff" ten per cent, of the amount n;M by him, as payment for his services, he was an agent of the plaintiff, and authorized to sell the plaintiff's goods for cash on d'^li'.v-ry- • ;id that, as between him and the plaintiff, the 1 thi*^ " Id sell only fo^ rash rin deliverv vas binding SU'.' pe!:. • of the!: if he knew nothi' ore's author; ■ he ■ - ' "o sell, an' ' v^cndant, i" ''■ 1;\ out pa\- ids sold by 2 loore orcicrta me defendant -!nt is not liable; that the d<^ if he w:- lave asct;. r he was put upon inquiry, tiie as marked "C. O. D." was . the "-. ^ these instructions the plaini "' " *'" • refusal of the r- me fol- rdi... was not sufficient autl UJun to de- that Moore v. - '^ the contract of tn , had the right to sell the goods, 1 - the contract with Odlin. '" .vment. 224 ':'■■ ' •. 'Ici' .lijiii have reached the de- ^Viler ! c notice was sent to the -. by th' onnt to them, or to theif no knowledge ci , in relation to defendant did receive came after circumstances render that cast the court. •■••-. ' ''it there was evidence .-; . .he jury. It does not -i;/;.c.,ii I ivas raised a; Uie trial, and if it ' t>:^t.'i). t' . the cause thr-^ vould have justii the J ' )n by the pi.' ihc unauthorized evidence, and contrary to law, and )DLIN. ouRT OF New Hampshire. r - •.: V. .1. marked "C. O. D." i is a corporation, d' ' i: defendant is an expi - . xeter. The plaintiff sent from New nark?"^^ .1 of the defenda; ' , of the bill, a cor re; and Berry received x. ■ . ritten order from Moor ihe uerendaiu. direciing : r the goods to B "without C. O. Tj ■■ ai ,' ,1 ihr-yy-i ■Arrr,r,V without payment CONTRACTS. 225 The plaintiff's evidence tended to show that Moore traveled to sell his own goods, and that he said to one Ludlow, who was the sec- retary, treasurer, and general business agent, manager and one of the tiiree directors of the plaintiff, that he might, in his travels, find customers for some of the plaintiff's goods ; that Moore was to re- ceive from the plaintiff ten per cent, of the amount of his sales of the plaintiff's goods ; that he made several sales for them ; that he had no interest in the corporation or its goods ; that he had no author- ity to sell the plaintiff's goods on any other terms than cash on de- livery ; that he had no authority to give said written order to Odlin, and that the order was given and executed without the knowledge of the plaintiff. The defendant's evidence tended to show that, by the bargain made by Moore with Berry, Berry was not to pay for the goods ■cash on delivery. The court instructed the jury that there was evidence for them to consider upon the question whether Moore was an agent of the plaintiff, authorized to sell the plaintiff's goods ; that if there was an understanding between the plaintiff and Moore, that Moore had authority to sell the plaintiff's goods for cash on delivery, and that he was to receive from the plaintiff ten per cent, of the amount sold by him, as payment for his services, he was an agent of the plaintiff, and authorized to sell the plaintiff's goods for cash on delivery ; and that, as between him and the plaintiff, the limitation that he should sell only for cash on delivery was binding; but that such limitation of his authority would not necessarily conclude other persons who had no notice of it ; that if the defendant had no notice of the limitation, if he knew nothing of Moore's authority except that he was authorized to sell, and if the defendant, in good faith, de- livered to Berry without payment goods sold by Moore as agent of the plaintiff, which Moore ordered the defendant to deliver without payment, the defendant is not liable ; that the defendant is held to have had notice of the limitation if he was put upon inquiry, and if by reasonable inquiry he would have ascertained it ; and that, upon the question whether he was put upon inquiry, the fact that the bill of the goods was marked "C. O. D." was evidence for the jury to consider. To these instructions the plaintiff excepted. The plaintiff excepted to the refusal of the court to give the fol- lowing instructions : 1. Moore's order was not sufficient authority to Odlin to de- liver the goods. 2. There is no evidence that Moore was the agent of the plaintiff authorized to change the contract of the plaintiff with Odlin. 3. If Moore had the right to sell the goods, he would not have the right to change the contract with Odlin, and order the goods •delivered without payment. 15 — Reixhard Cases. 226 LIABILITY TO THIRD PERSONS. 4. The bill marked "C. O. D." was notice to the defendant of Moore's limited authority. 5. If the bill was not notice, it was sufficient to put the defend- ant on inquiry. Verdict for the defendant, and the plaintiff moved to set it aside. Bellows, C. J. — From the uncontradicted testimony of the plaintiff and the finding of the jury, it may be assumed that Moore was clothed by the plaintiff with an apparent authority, like that of a factor, to sell all the goods of the plaintiff he could sell within his business circuit, on a commission of ten per cent. As incident to that general authority, he had power to fix the terms of sale, including the time, place, and mode of delivery, and the price of the goods, and the time and mode of payment, and to receive payment of the price, subject of course to be controlled by proof of the mercantile usage in such trade or business. There is some conflict in the adjudged cases upon the question of the authority of a factor to sell on credit, but we think the weight of modern authority is in favor of the position that he may sell on credit, unless a contrary usage is shown. Goodenow v. Tyler, 7 Mass 36; Hapgood v. Batcheller, 4 Met. 576; Greely v. Bartlett, i Greenl. 178; Van Alen v. Vanderpool, 6 John. 70; Robertson v. Livingston, 5 Cow. 473 ; Leland v. Douglass, i Wend. 490 ; — and see I Am. Lead. Cases (4th ed.) 662, note, where it is said that it is universally established as the law-merchant that a factor may sell on credit. So in Laussatt v. Lippincott, 6 S. & R. 386, and May V. Mitchell, 5 Humph. 365, and Story on Agency, § 209. The same views are recognized in Scott v. Surman, Willes 406 ; Russell V. Hankey, 6 T. R. 12; Haughton v. Mathews, 3 B. & P. 489, per Chambre, J, ; 3 Selw. N. P. 719. In the case before us, Moore stands much on the same footing as a factor. The most marked distinction is, that he is a traveling merchant, and did not apparently have his principal's goods with him ; but this, we think, cannot affect the rule. The reason of that rule in the case of factors is, that it is found, by experience and repeated proofs in courts of justice, that it is ordi- narily the usage of factors to sell on credit ; and the same reason will apply in this case. We have a case, then, where the agent was apparently clothed with the authority to sell the plaintiff's goods, without limitation as to the quantity, and on commission, for cash or on credit as he might think proper ; and this being so, Moore must be regarded, in respect to third persons, as the plaintiff's general agent, whose au- thority would not be limited by instructions not brought to the notice of such third persons. Backman v. Charlestown, 42 N. H. 125, and cases cited. As Moore, then, in respect to third persons, had the power to sell on credit, the authority to control the delivery of the goods so :ox' 22: -. ! and sent to his order, for the purp* , — act of sale, wonl ' • •' v : and we thir of the g ifit of ^ was real autho- ,. ,-irkin.->- of the pc._ to the e. t cash was notice ol -u>_4i vvant of aut' to put the defendant upon i ■ ' '.e jury. The n conform nother asc'r on deli, •hough 11 That, howe t not to be - in that w;s •lorit}' t' , so ma be considered ic the delivery ^^" • for cash. And it m ■t of Moore's agency of sale. '- nt, therefore, is i\)\\\v.\ to have had iio nuuc'.- • in Moore, and was not put upon inquiry, V\. lent on the verdict. IHURBER & CO. V. ANDERSON. iK;S Supreme Court of Illinois. 88 111, 167. e controver?v in this case i'^ a bill of cig" :ted ale ^- on an or . :i his nat; The SO! \ the goods the knov. 1. i^t of appelle-^ t his son had any author r had 3 ;s ; but it ny leasou to suspect that the .1 December 4, 1875, . and prior and snl rocery, and that, du rders to rur ted, in bi5 i cfc not notice to Uie defendant of it the bill w ''I'fuiry. for the terms of the p'^"" in him ; out notice of such third p 125, and cases cited. As Moore, then, in fell on credit, the autl. >ut the defend- e plaintiff moved to set it aside. ' tradicted testimony of the !;iav be assumed that Moore ■V, like that of a sell within his »ii 01 ten per cent. rthority, he had power to fix the ^lace, and mode of delivery, and luiie and niotie of payment, and to abject of course to be controlled by Iness. . the question of ■ '• un cieJii, l>ui. wc think the weight ir of the position that he may sell t^e is shown. Goodenow v. Tyler, 7 ; r, 4 Met. 576; Greely v. Bartlett, i "(derpool, 6 John. 70; Robertson v. d V. Douglass. I Wend. 49(3; — and ; ) 662. note, where it is said that- it ' ! a factor may . j. _ • . 386, and May ; Story on Agency, § 209. :;'ed in Scott v. Surman, Willes 406; ilaughton v. Mathews, 3 B. & P. 489, 719. (• stands much on the same footing 'on is, that he is a traveling J his principal's goods with a tlie rule. ise of factors is, that it is found, '. courts of justice, that it is ordi- ,,• .-.-...iif- -,-■; ti.^ '-'ame reas6i> !j);'arently clothea . without limitation ash or on credit as he re must be regarded, in 1 s general agent, whose au- (fions not brought to the Charlestown, 42 N. H. oersons, had the power ' ilelivery of the goods . CONTRACTS. 22/ sold and sent to his order, for the purpose of making it conform to the contract of sale, would necessarily come within the scope of his agency; and we think his order to the defendant would justify a delivery of the goods without payment, unless he had notice of the agent's want of authority. As to him the agent's apparent authority was real authority. The marking of the package by another agent of the plaintiff, to the effect that cash was required on delivery, was not in law notice of such want of authority, although it might be sufficient to put the defendant upon inquiry. That, however, was properly left to the jury, and they have found it not to be sufficient for that purpose. The marking of the package in that way does not neces- sarily imply that the agent had no authority to sell on credit, but it might indicate merely that the person so marking it supposed the sale to be for cash. And it might well be considered to come within the scope of Moore's agency to make the delivery conform to the contract of sale. As the defendant, therefore, is found to have had no notice of any want of authority in Moore, and was not put upon inquiry, there must be Judgment on the verdict. THURBER & CO. v. ANDERSON. 1878. Supreme Court of Illinois. 88 111. 167. ScHOLFiELD, C. J. — The controversy in this case is, whether ap- pellee is liable for a bill of cigars and imported ale shipped by appel- lants to his address, on an order drawn in his name by his son, on them, to that effect. The son received the goods and made use of them himself, without the knowledge of appellee. Appellee denies that his son had any authority to purchase goods for him, and also denies that he ever had any knowledge of his having ordered or received these goods ; but it does not appear that appellants had any reason to suspect that the goods were not ordered by him. The goods were ordered December 4, 1875, and several witnesses testify, that at that time, and prior and subsequent thereto, ap- pellee's son was in his grocery, and that, during the time he was there, he sold goods, gave orders to runners for goods, received money for goods sold, receipted, in his father's name, for express packages, ordered goods from other houses in his father's name, ajid corresponded with reference thereto ; and, also, that during that time, he did not profess to be doing business for himself. And of all this, the reasonable presumption, from the evidence, is, appellee had full knowledge. 228 LIABILITY TO THIRD PERSONS. We do not think it necessary to inquire precisely what authority appellee, in fact, conferred upon his son in regard to his business, be- cause, in our opinion, the decided preponderance of the evidence is, that he was suffered to act as a general agent both in buying and selling, and the public were, therefore, justified in assuming that he possessed all the powers requisite to a general agent in buying and selling. It is true, as contended by counsel for appellee, that an authority to buy can not be inferred simply from an authority to sell ; yet where a clerk or shopman has been accustomed to buy as well as to sell, the presumption of full authority is equally ap- plicable to both. Story on Agency, § 89. By permitting another to hold himself out to the world as his agent, the principal adopts his acts, and will be held bound to the person who' gives credit thereafter to the other, in the capacity of his agent. 2 Kent's Com. (8th ed.) 799- . It is suggested, however, that the goods here ordered were not such as were suited to the business in which appellee was engaged, and that, in no view, could the son bind apellee by contracts for goods not in the line of his trade. The evidence fails to show that the goods ordered were not such as are within the line of business in which appellee was engaged. His evidence was : "Am in grocery ; general stock ; keep tobacco, etc." Another witness, Benjamin Kinkly, speaks of his having a "grocery and saloon." No witness says that imported ale and cigars, such as were ordered, are articles not adapted to such business, and we are not warranted in so presuming in the absence of evidence. We are of opinion that, under the evidence before us, the judg- ment does injustice to appellants, and that it should, therefore, be reversed. The judgment is reversed and the cause remanded. Judginent reversed.^ ^ Compare Hirshfidd v. Waldron, 54 Mich. 649. "A principal is responsible for the acts of one who is his agent, or appears to be, if responsibility is asserted on the ground of apparent authority in the agent to do the acts, only in case the principal has clothed the agent with the appearance of power, and not when the agent's own conduct creates the ap- pearance." Goode, J., in Taylor v. Sartorious, 130 Mo. App. 23, 34. "In determining the extent of an agent's authority, it is more important to look to the nature of the duties he is accustomed to perform than to the name by which he is called. If these duties are those of a manager or an assist- ant manager, it is immaterial that he is referred to by his principal as a book- keeper. By a course of dealing Huggins had been held out as having author- ity to deliver and to refuse to deliver meal and to receive payment therefor; he was thereby clothed with apparent authority to that extent." Powell, J., in Fitzgerald Cotton Oil Co. v. Farmers' Supply Co., 3 Ga. App. 212, 214. See particularly Lightbody v. North American Insurance Co., 23 Wend. (N. Y.) 18. CONTIL\C \ 229 DICKERING V. BUSK and another. 1812. Court of King's Bench. 15 East 38. Trover for hemp. At the trial before Lxird Ellenl) at tlie sittings after Trinity term in London, it apper.- low, a brol' to the <^i'- 799- It ; nauire precisely what authority ■ I to his business, be- .: of the evidence is, 1 agent both in buying and justified in assuming that he ■ a general agent in buying and / counsel for appellee, that an vd simply from an authority to n has been accustomed to buy ■ of full authority is equally ap- ,v:y, § 89. By permitting another to i.-i his agent, the principal adopts his ne person who gives credit thereafter his agent. 2 Kent's Com. (8th ed.) it the goods here ordered were not iiess in which appellee was engaged, r.e. son bind apeliee by contracts for le. :iat the goods ordered were not such : ess in which appellee was engaged, vocery; general stock; keep tobacco, njin uTirni-Kr c;peaks of his having a i\G ■WJ ordered. • ment doc reversed. Judgm * Compare H) A r,:,nr-;T,-,i r and t',' rebv clot .1(1 Cottov iciilarlvi; iteci rik ri]i(i cigars, such as w^ere ed to such business, and we are not ■he absence of evidence. ier the evidence before us, the judg- its, and that it should, therefore, be .,rv,-il 'Ani'i the cause remanded. 54 Mich. 649. -n ts of one who is his agent, or appears ground of apparent authority in the hicipal has clothed the agent with the agent's own conduct creates the ap- ;ious, 130 Mo. App. 23, 34. I's authority, it is more important to accustomed to perform than to the • those of a manager or an assist- ed to by his principal as a book- ' been held out as having author- . lid to receive payment therefor; .ity to that extent." Powell, T.. ^ly Co., 3 Ga. App. 212, 214. u.an Insurance Co., 23 Wend. CONTRACTS. 229 PICKERING V. BUSK and another. 1812. Court of King's Bench. 15 East 38. Trover for hemp. At the trial before Lord Ellenborough, C. J., at the sittings after Trinity term in London, it appeared that Swal- low, a broker in London, engaged in the hemp trade, had purchased for the plaintifif, a merchant at Hull, a parcel of hemp then lying at Symonds' wharf in Southwark. The hemp was delivered to Swallow, at the desire of the plaintifif, by a transfer in the books of the wharfinger from the name of the seller to that of Swallow. Shortly afterwards Swallow purchased for the plaintiff another parcel of hemp, lying at Brown's quay, Wapping, which latter parcel was transferred into the names of Pickering (the plaintiff), or Swal- low. Both these parcels of hemp were duly paid for by the plaintiff. Swallow, however, whilst the hemp remained thus in his name, hav- ing contracted with Hayward and Co. as the broker of Blackburn and Co. for the sale of hemp, and having none of his own to de- liver, transferred into the names of Hayward and Co. the above parcels in satisfaction of that contract, for which they paid him the value. Hayward and Co. shortly after became bankrupts ; and the plaintiff, discovering these circumstances, demanded the hemp of the defendants their assignees, and upon their refusal to deliver it the present action was brought. His Lordship was of opinion upon this evidence, that the transfer of the hemp, by direction of the plaintiff, into Swallow's name, authorized him to deal with it as owner, with respect to third persons ; and that the plaintiff, who had thus enabled him to assume the appearance of ownership to the world, must abide the consequence of his own act. A verdict was thereupon found for the defendants, with liberty to the plaintiff to move to set it aside. Lord Ellenborough, C. J. — It cannot fairly be questioned in this case but that Swallow had an implied authority to sell. Strangers can only look to the acts of the parties, and to the external indicia of property, and not to the private communications 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 au- thority is the real authority. I cannot subscribe to the doctrine, that a broker's engagements are necessarily and in all cases limited to his actual authority, the reality of which is afterwards to be tried by the fact. It is clear that he may bind his principal within the limits of the authority with which he has been apparently clothed by the principal in respect of the subject-matter; and there would be no safety in mercantile transactions if he could not. If the princi- pal send his commodity to a place, where it is the ordinar}'^ business of the person to whom it is confided to sell, it must be intended that 230 LIABILITY TO THIRD PERSONS. the commodity was sent thither for the purpose of sale. If the owner of a horse send it to a repository of sale, can it be implied that he sent it thither for any other purpose than that of sale? Or if one send goods to an auction-room, can it be supposed that he sent them thither merely for safe custody? Where the commodity is sent in such a way and to such a place as to exhibit an apparent pur- pose of sale, the principal will be bound, and the purchaser safe. The case of a factor not being able to pledge the goods of his princi- pal confided to him for sale, though clothed with an apparent owner- ship, has been pressed upon us in the argument, and considerably dis- tressed our decision. The court, however, will decide that question when it arises, consistently with the principle on which the present decision is founded. It was a hard doctrine when the pawnee was told that the pledger of the goods had no authority to pledge them, being a mere factor for sale ; and yet since the case of Paterson v. Tash, that doctrine has never been overturned. I remember Mr. Wallace arguing, in Campbell v. Wright, 4 Burr. 2046, that the bills of lading ought to designate the consignee as factor, otherwise it was but just that the consignors should abide by the consequence of having misled the pawnees. The present case, however, is not the case of a pawn, but that of a sale by a broker having the pos- session for the purpose of sale. The sale was made by a person who had all the indicia of property : the hemp could only have been trans- ferred into his name for the purpose of sale ; and the party who has so 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. Grose_, J. — The question, whether the plaintiff is bound by the act of Swallow, depends upon the authority which Swallow had. This being a mercantile transaction, the jury were most competent to decide it ; and if I had entertained any doubt, I should rather have referred the question to them for their determination : but I ain perfectly satisfied : I think Swallow had a power to sell. Le Blanc, J. — The law is clearly laid down, that the mere posses- sion of personal property does not convey a title to dispose of it ; and, which is equally clear, that the possession of a factor or broker does not authorize him to pledge. But this is a case of sale. The ques- tion then is whether Swallow had an authority to sell. To decide this let us look at the situation of the parties. Swallow was a gen- eral seller of hemp ; the hemp in question was left in the custody of the wharfingers, part in the name of Swallow, and part in the name of plaintiff or Swallow, which is the same thing. Now for what pur- pose could the plaintiff leave it in the name of Swallow, but that Swallow might dispose of it in his ordinary business as broker ; if so, the broker having sold the hemp, the principal is bound. This is dis- tinguishable from all the cases where goods are left in the custody of persons, whose proper business it is not to sell. I COXT 2ZL ii.EY, J. — It may be admitted that the ■ not give Swallow any express authority to sell; but .... may be g-ivei: ; rnd if a person put goods into the ''3se common business it is to -^r'' • ' 'out limiin.i.' thereby confers an implied uoon him •' was in the habit of buyuig; aii ng their names. And now the jk rt-ci ; 1 the contract, because no express au: S\vali':'vv to sell. But is it competent to him S' c ant of a horse-dealer, with express directions not t' rant, the master is bound ; because the st general authority' to sell, is in a condition to master has not j/otified to the world that the ge: circ!im?cr'b',d. T'hii case dGe= fi''^t ^proceed on the ill • ert, but it proc ^he principle, ilia- tia- Swallow an aut • sell, he is not at wards, re has been a sale, to deny the authorit .869. Court of Appeals 01 .Marylaind. 31 ,\ia. 543. Appeal from the Baltimore City Court. The facts are sufficiently detailed in the opinion of t' •■ Bartol. C. J. — The appellee, plaintiff below, was '■■. as widow of Richard Allen, my, to receive from the trcr^ ihice 1.; ■ for bo • the dece? Her r ;>ut in dv. , of law, -'quisite affi- davits and proof annexed, was placed by her ^n in the hands of William E. Hanson, and .appendec '^ •' *' 1- lowing order or draft: ; e the true owner holds oat another, or allows him to aijpear, as the lom they '1 precluc r power wiucii, \.\ Public St.au- "-'s, c. 71. § I. 230 MATiyi IVY TO THIRD PERSONS. 'lie commodity wi. •■■ - of a horse se :t it thither ; .nc >Ciid i;ood^ ' [lieni thither ',■ sent in such a a- pose of sale, tl The case of a ♦ pal confided tr ship, has b- tressed our Avhen it ar,' decisiov told th be- the broi^ei hav tinguishable ft persons, whos^ i; purpose of sale. If the , sal" ■ ' he implied that ' u t sale? Or if ■au It i- ' ' lie sent iv> "VN Jity is it piir- • safe. his princi- . , .v.x ..:.. -eat owner- • t, and ocr.siderably dis- o>.v„-ii, will decide tliat question the principle on wliich the present " '" * • ^^ee was ,;. them, i>aie ; ajj'i yet sitice liie cast- ot Paterson v. ne ( ; been overturned. I remember Mr. .'. Wright, 4 Burr, 2046, that the '' e consignee as factor, otherwise iiould abide by the consequence i he present case, however, is not •< sale by a broker having the pos- ' sale was made by a person who omp could only have been trans- c of sale ; and the party who has 1 the contract. If the plaintiff over the hemp, he should have m his own name. I the plaintiff is bound by the authority which Swallow had. ihe jury were most competent to itiy doubt, I should rather have their determination : but I air, 'ad a power to sell. laid dov.'* ■^■' * 'he mere posses- avey a t /)Ose of it ; and, ■ .1 of a iuci'-/r or broker does - a case of sale. The ques- tity to sell. To decide s. Swallow was a gen- 1 was left in the custody of illow, and part in the name thing. Now for what pur- - le of Swallow, but that ' nsiness as broker; if so, : • 'Mi. This is dis- I'l the custody of CONTRACTS. 23I Bayley, J. — It may be admitted that the plaintiff did not give Swallow any express authority to sell ; but an implied authority may be given ; and if a person put goods into the custody of another whose common business it is to sell, without limiting his authority, he thereby confers an implied authority upon him to sell them. Swallow was in the habit of buying and selling hemp for others, concealing their names. And now the plaintiff claims a liberty to rescind the contract, because no express authority was given to Swallow to sell. But is it competent to him so to do ? If the serv- ant of a horse-dealer, with express directions not to warrant, do war- rant, the master is bound ; because the servant, having a general authority to sell, is in a condition to warrant, and the master has not notified to the world that the general authority is circumscribed. This case does not proceed on the ground of a sale in market overt, but it proceeds on the principle, that the plaintiff having given Swallow an authority to sell, he is not at liberty after- wards, when there has been a sale, to deny the authority. Rule discharg-ed.^ LISTER AND SUPPLEE v. ALLEN. 1869. Court of Appeals of Maryland. 31 Md. 543. Appeal from the Baltimore City Court. The facts are sufficiently detailed in the opinion of the court. Bartol, C. J. — The appellee, plaintiff below, was entitled under the laws of the state, as widow of Richard Allen, late a soldier in the United States army, to receive from the treasury the sum of three hundred dollars for bounty due the deceased. Her claim, made out in due form of law, with the requisite affi- davits and proof annexed, was placed by her for collection in the hands of William E. Hanson, and appended thereto was the fol- lowing order or draft: ^ "Where the true owner holds out another, or allows him to appear, as the owner of, or as having full power of disposition over the property, and inno- cent third parties are thus led into dealing with such apparent owner, they will be protected. Their rights in such cases do not depend upon the actual title or authority of the party with whom they deal directly, but are derived from the act of the real owner, which precludes him from disputing, as against them, the existence of the title or power which, through negligence or mis- taken confidence, he caused or allowed to appear to be vested in the party making the conveyance." Rapallo, J., in McNeil v. Tenth National Bank, 46 N. Y. 325.. 329. The decision of Pickering v. Busk was incorporated into the English Fac- tor's Acts : 4 Geo. IV, c. 83, 5 and 6 Victoria, c. 39, § 4, and 52 and 53 Vic- toria, c. 45, § I- See also Laws of New York, 1830, c. 179, § 3, and Massa- chusetts Public Statutes, c. 71, § i. 232 LIABILITY TO THIRD PERSONS. "$300. 186—. "The treasurer of the State of Alaryland, pay to the order of WilHam E. Hanson the sum of Three Hundred Dollars, being bal- ance of state bounty due me as the widow of Richard Allen, a volunteer in Company H, in 30th Regiment, U. S. C. troops. Under the act of the general assembly of Maryland of 1864, chapter 15,. and amendments thereto." her "Emeline + Allen." mark. "Witnessed by Jos. B. Ruth, J. P." Evidence was offered to prove that Hanson paid nothing to the plaintiff for the claim ; that he passed it over to one James Camp- bell, a bounty broker, but for what consideration does not appear. Campbell sold it to the appellants for $165, and they received the amount ($300) from the treasury. The object of the suit is to recover from them this sum, as money had and received for the use of the plaintiff. At the trial the defendants asked the court to instruct the jury "that if they found the defendants purchased the claim for bounty in question at a fair market price, without any collusion with Hanson or his agent, and paid their money for the same, then the plaintiff is not entitled to recover." This prayer was refused and the prayer of the plaintiff was granted, instructing the jury substantially, "that if they believed from the evidence the plaintiff placed her claim in the hands of Han- son, a claim agent, with an understanding that the same should be collected in the usual mode, and paid over to her, but without au^ thority to sell the said claim, and that Hanson sold the same, or caused it to be sold, without her authority or consent, to the defend- ants, who afterwards collected the full amount from the state, then the plaintiff is entitled to recover said three hundred dollars, with interest from the date of its payment." The jury found a verdict in favor of the plaintiff; and the appeal brings up for review the ruling of the court below on the prayers. The defendants claim exemption from liability, on the ground that they were bona fide purchasers of the claim for value. But the court asserted the right of the plaintiff' to recover, provided the jury found that Hanson was her agent only to collect, without any authority to sell, and if he sold without her knowledge or consent, the purchasers acquired no title as against her, although they may have acted in good faith. In support of this position, we have been referred to Chitty on Contracts, 200, and to Batty v. Carswell, 2 Johns. 48, and Rossiter v. Rossiter, 8 Wend. 494 (24 Am. Dec. 62). CONTRACTS. announce the doctrine thr .1 liis principal, unle?" "■'--♦^' he rule as follows ; .ted onl\ •;rs. Of. '. .e duty of persoi '.f his authorit} . }■ any act of the a^ent not Avarranted <. ...:cessarv implic'-"-" ''"'^^ '''■'■'^ i. .-r-i ot • him." ■"'ieral rule is ccn^'^i; uit ;i; cu- :a)p;ic;iULn ,^ rights of third nersons who have dealt i. iaith, care mu;-' "t to bind them n the authority by the private i ', which are not icnuwn to such third personb, n ■: prop- _ .„ie from the nature of the agent's employment 't^rkin's note to the text of Chitty, above quoted, ■- tly said: "A general authority arises from a l' in a specific capacity, such as factor, broker, att "■ * * " ■" .1 authority of this kind empowers the o bind the e- ;jy all acts within tb.e scope of his em- nt, and that power cannot be limited by any private order or :i not known to the party dealing with the agent." e Story, in his work on Agency, § 443, says : '^e responsibility of the principal to third persons is i.'r- cases where the contract has been actually made under ' :■ I 'i^d authority. . ler, and binds the principal in all ca'^^s where • acting- within the scope of his usual the public or to the other party as Ithough in fact he has, in the particular ; 1, I )n,;s instructions and acted withn"^ b.ere one of two innocent pe • r who ! " ' ' ' '■■.er into the ( as coni; , and as c "incipal should clothe the agent, ill the apparent muniments * - title •-'T- -If, the principal wouU' ''•■'" >..c acts imple, if he should r h the ap- ■y ,>y a bill c" '•'■-- ■ ' ■" r to he an a t ! blank. ,■171 of 1 corres)' . .'na fi('f' nst him f state \> *;r in Co. of the . RD PERSO:-. i86~. ' order oi i>eing bal- Allen, a !'"'•.! :l , .-. Under Alarylaii •apter 15 imessei be; xc:-- - ■ of the thorif.v •I'Uiiui; in Liic James Carnp- 3 not appear, received the irv. i i the suit is to n.ir..-v V V i1 for the use "1 was h'. he sold "» acnuir<. overch:=. ji- ten systt • ' . n, who confessed nis guilt and absconi > r- proved that the extent of these false a^ items and excessive charges, was $2 i ' -d remitted p- — -ms and r - i'l' unts to the ■■' X. he rule of . '■ ' ',>le to a thin; /ii'..i,i .: line of his cnipioymcni, ev ••'' i ii; his authority ''and the pn/ ize, justitv of it." (Nowack v. ^ ! N^ Y. ''' irvis V. Manhattan Beav.i. ...... 148 id. '''" ding this rule of law, the appellant cor '. .t Hnrnr ^ in the line of his em ' • in^kitu-- ccounts rendered to th- ndence of the df~ ive handling of r iige. H h the rendition of the a-. 1 PERSONS. -e pnno: •'- Mth w v.. I i cable h -.1 orde . e order ^ As bt: was to c of the pi for rr-- ^yi& _ |h!r ■ is supported by the au- i; , i,r(.,i '...f-g^ and seenas ;>laintiflt, she and by her .. should be paid -s, the e^tect of this transaction mere agent or attorney in fact :y; and he would be habie to her 'r - - of her property • follow that such ' .kalt with the ag-ent limits of his agency disclose. K./11 Uie contrary, the claim , as was- decided ni Eichelberger v. Sif- i>n by Hanson of the written evidence ■:heck of the plaintiff thereon directing r, placed in hii» hands such muniments :h him as owner, or y so dealt with him I H valuawe consideration, they •t the claim of the principal, al- .'.led his instructions. fill, not upon the appellants, but upon !y, or perhaps ignorantly, placed it in ' ronfidence, or to impose upon I eusurer, making the money pay- ed as an ordinary negotiable se- , tlie appellants, if they took it 't the nature of Hanson's agency. f tv.-elve hundred dc ..:;d a large an,. 'cent to a flounsliiug village, which repre-:; was also evidence that Rockwell made the;, ■ as the agent of the defendant. Rockwell also testitieci i^ ;>t dant made these representations to him, that he thereiuro n to the plaintiff, and that before the conveyance was made (he defendant that he had so made them. While the ■o the value of the land might be treated as an expres- n, only those in reference to the locality of the land and ■ timber on it were statements of fact of importance to )sing to purchase it; nor does the land appear to have .ccessible, so that their accuracy could have been tested I. The defendant denied that he ever made any repre- iceming the condition or location of tl) ice that at the time the conveyance was 1 tiff that he had never seen the lar, pt what he had been informed, tant requested the court to instruct the '■^ry shall find that Rockwell was *. . .\g the land in question, and that as ^' ?sentations relied on, and that after ti v.c time, but before the deed of thivS ^ de- !f, in answer to inquiry mad' Ly the lie had never seen the land . r ■ nothing had been told him, and without ed the deed and paid the .1 agreed 2. If tlie jury shall find that Rockwell was ,.^cin. ..I iM.„ .. .:dant in selling the land in question, the plaintitf 'ot recover, unU-s> it is proved that the defendant was privy to ' ' ' :'ons relied on." ib'^se instructions, 3nd instnirfed th? i ■ ed and aut Lii'.- ! Hi'.. ^ of that ami Sand and did ir.duce the plamtiff to buy, and made false and 236 PERSONS. ntiff and with collect! •tnt due i-i not hi : :ne miser thorized ; vnitted, i . transrais -.-A h\ out • doe;- the eas; tiicTefore, bf ;;cr on the 'd t'tl'jndant h;. :r-:rr of its > i : V had a : ams and cablegrams sent 1 e 'vwrc charoft's for transmission. ills agencv in '-. .civing- the mone\ If the pP' "l paid the exact rnisapr : i^ the plaintiff on account , awas not au- ,ms never trans- lly due for their did that because plaintiff turned flis delinquenc} relied Upon ^ a I cannot s(j !t. The general iiatever an agent that general line, al- ' If a conductor uses a train the railroad iithorize the conductor empower him incer- held civilly responsi- \ng out the authority ! he oversteps his instructions. The 1 on the old maxim that the principal lot the innocent third person. with the tariff books of the defendant, statement with the tariff rates could T cheated. It is urged that he wa? I'-e examinations and should not, ver. The plaintiff was not obliged tc .arrington was defrauding him. The t in the responsible position of man- ' ^^i for his integrity to its patrons. : honest and were not called upon le items of his accounts for the ■ 1 or mistake. i with costs. le plain ti collect t"t nore tha- an his dea' HCtino;- in tit to the ngton. the misdeeds o! ■.>.'d by the agenc) , ird person within "resents his p"- — , mgr a passer;: ■nny does aoL . iily, but it d'^e /-r, and i^ or does : atfinned. ^l by Court c M( Col ;1 V. '. employ ill I the partic be deemc' v. 591. laoh Co., 39 Minn. 181. On rac-' -3 of tile agent to send ' ere within the scope of '.;■ circnmstance.s which ir " .\s to him, therefore, it ' TORTS. 237 HASKELL V. STARBIRD. 1890. Supreme Judicial Court of Massachusetts. 152 Mass. 117. Tort for false and fraudulent representations in the sale of land. At the trial in the Superior Court, before Brigham, C. J., the jury returned a verdict for the plaintiff; and the defendant alleged ex- ceptions, which appear in the opinion. Devens, J. — There was evidence that the purchase of a certain tract of land in Canada, in which purchase the plaintiff alleged him- self to have been deceived, was made through one Rockwell, who acted as the agent for the defendant ; and that the plaintiff was de- ceived by the representations made by Rockwell that the land was of the value of twelve hundred dollars, contained a large amount of tim- ber, and was adjacent to a flourishing village, which representations were false. There was also evidence that Rockwell made these repre- sentations as the agent of the defendant. Rockwell also testified that the defendant made these representations to him, that he therefore made them to the plaintiff', and that before the conveyance was made he informed the defendant that he had so made them. While the statement as to the value of the land might be treated as an expres- sion of opinion, only those in reference to the locality of the land and the amount of timber on it were statements of fact of importance to any one proposing to purchase it; nor does the land appear to have been readily accessible, so that their accuracy could have been tested by the plaintiff. The defendant denied that he ever made any repre- sentations concerning the condition or location of the land, and offered evidence that at the time the conveyance was made by him he informed the plaintiff' that he had never seen the land, and knew nothing about it except what he had been informed. The defendant requested the court to instruct the jury as follows : I. *Tf the jury shall find that Rockwell was the agent of the defendant in selling the land in question, and that as such agent he made the misrepresentations relied on, and that after the same were made, and at the time, but before the deed of this land was de- livered, the defendant, in answer to inquiry made of him by the plaintiff, replied that he had never seen the land, and knew nothing about it except what had been told him, and the plaintiff without further inquiry accepted the deed and paid the consideration agreed on, he cannot recover. 2. If the jury shall find that Rockwell was the agent of the defendant in selling the land in question, the plaintiff cannot recover, unless it is proved that the defendant was privy to or adopted the misrepresentations relied on." The court declined to give these instructions, and instructed the jury: "If the defendant employed and authorized Rockwell to sell the land, and in pursuance of that authority Rockwell sold the land and did induce the plaintiff to buy, and made false and 238 LIABILITY TO THIRD PERSONS. fraudulent representations about the land, upon which the plaintiff relied and which induced him to purchase, I shall instruct you that the defendant would be responsible for that fraud, notwithstanding there were no instructions given to Rockwell by the defendant which authorized him to make fraudulent representations, and notwith- standing the defendant did not know that he practised those fraudu- lent representations. Employing him as agent or as his agent to do that thing, he became responsible for the methods which his agent adopted in doing that thing. * * * jf t^g representations were false in fact, and Rockwell had no knowledge personally of the truth of these representations, but derived his information from others upon those facts, he, or the person for whom he was acting as the agent in the same, would be liable to an action for deceit." The first instruction requested and refused should not have been given. It was an instruction on only a part of the evidence, and omitted entirely any consideration of the important testimony of Rockwell, that he made the false representations acting as the de- fendant's agent, and upon his express authority, and also that the fact that they had been made was communicated to the defendant before the transaction was closed by the payment of the purchase money and the making of the conveyance. Even if the testimony of Rockwell was denied by the defendant, and controverted by other evidence, the instruction asked, if given, would have led the jury to infer that it was unimportant for them to consider this evidence, and that the mere fact that the defendant made the re- marks testified to by him at the time of passing the deed would prevent the plaintiff from recovering, while it might be also that the plaintiff in completing the transaction depended upon the false and fraudulent representations of the defendant's agent made at the defendant's own instance. The contention of the defendant is, that, the plaintiff having been put upon his guard by this conversation, he was affected by all the knowledge which he might have obtained if he had inquired further and elsewhere. But the defendant did not in the conversation in any way repudiate the representations of Rockwell, assuming them to have been made, or put the plaintiff on inquiry as to the cor- rectness of them. On the contrary, the natural inference would be that the defendant adopted them, although he disclaimed personal knowledge. If it is true that these statements of Rockwell had been falsely and fraudulently made, and especially if made on the author- ity of the defendant himself, and if they had induced the plaintiff to make the purchase, the defendant cannot extricate himself from re- sponsibility therefor by such a disclaimer. The instructions of the court upon the second request for a rul- ing — which was in substance, that, even if Rockwell was the agent of the defendant to sell, the plaintiff could not recover unless it was proved that the defendant was privy to or adopted the misrepre- TORTS. 239 relied on — made the defendant resp. e false iulent representations as to t^^ "'"-^ ' ■ /' '!1 was emoloved bv the de • : uiiLii ;> oe. Tiv ploying ,,enttoii! r>le for the methods which he adopted m so doing. .^>.uit contends that Rockwell was a special agent only, a' his authority extended only to the sale of this single 1 ' ' ' ' 'dant is ! ' ' n' representation. c made orize: jS in which a 'ui 1 made principal for ti ^ i and 07 where tlie special agent did not have, and was not neid ing, full authority to do that which he undertook "^ one dealing with him was informed, or should iv nself, of thelimi'r '' -^ ' ' - authority. There is no • the matter of for the fraud of an aerent to do business , and of an agent f to •^inp-lc trarisacti' either case, he is at ..he he was employed by the principal, and had full . ^.:te tlie transaction. While the principal may not •rized the particular act, he has put the agent in his place e sale, and must be r" -^ -hie for the manner ir —>-■-- ■iducted himself in •', business which the ce Shaw' m Locke v. Steams, i Mer 'lie for the fa^-^- -"^--esentations of ^^^^ ►cent of the ■?> said by I^J er, 16 Gray to be settled b} rnc cicar wcij^iiV by of aaking ;■ in- roved to ha" ill'' cn-li TM ii nresentat tiir the PEI -id. tSONS. upon which the plaintiff ase, I shall instruct you that that frfli id r.rwith standing it which .lotwith- lose fraudu- , „. ... agent to do ior \ the' .vhich his agent * If mentations were no knowledf illy of the truth -.ed his ' TT otliers • for wh . ji" as the ; L. I have been on onl\ e evidence, and '!tion of . i..x\t testimony of use repr !^ acting" as the de- .ic e; - vnd also that the ) the defendant of the purchase f the testimony ■ I i, and cojitroverted by ., . given, would have led jortant for them to consider this .... that i'^^ ■' •'■^adant made the re- :he tini« ng the deed would '■ ;l might be also that the iided upon the false and defendant's agent made at the The cc- is, that, the plaintiff having been -^ '•' '-' ■"'■n, he was affected by all the d if he had inquired further uid not in the conversation in >ns of Rockwell, assuming them 'ff on inquiry as to the cor- ^ mtural mference would be he disclaimed personal -lis of Rockwell had been cially if made on the autli? '"'•d induced the plaintiff tricate himself from • cond request for a r of'th;, :.,,,.;. ■■ ; .■ V>roved that the defer, o or adopted the misrej) TORTS. 239 sentations relied on — made the defendant responsible for the false and fraudulent representations as to the land made by Rockwell, if Rockwell was employed by the defendant to sell the land as his agent, notwithstanding Rockwell was not authorized to make them, and notwithstanding the defendant did not know that he had made them until after the conveyance. They held that the defend- ant, by employing Rockwell as his agent to make the sale, became re- sponsible for the methods which he adopted in so doing. The de- fendant contends that Rockwell was a special agent only, and that, as his authority extended only to the sale of this single tract of land, the defendant is not responsible for any representations Rock- well might have made which he did not authorize. The cases in which a distinction has been made in the responsi- bility of a principal for the acts of general and of special agents are those where the special agent did not have, and was not held out as having, full authority to do that which he undertook to do, and where one dealing with him was informed, or should have in- formed himself, of the limitations of his authority. There is no dis- tinction in the matter of responsibility for the fraud of an agent authorized to do business generally, and of an agent employed to conduct a single transaction, if, in either case, he is acting in the business for which he was employed by the principal, and had full authority to complete the transaction. While the principal may not have authorized the particular act, he has put the agent in his place to make the sale, and must be responsible for the manner in which he has conducted himself in doing the business which the princi- pal intrusted to him. Benjamin on Sales (3d Am. ed.), § 465. The rule that a principal is liable civilly for the neglect, fraud, deceit, or other wrongful act of his agent, although the principal did not in fact authorize the practice of such acts, is quoted with approbation by Chief Justice Shaw in Locke v. Stearns, i Met. 560. That a principal is liable for the false representations of his agent, although personally innocent of the fraud, is said by Mr. Justice Hoar, in White V. Sawyer, 16 Gray 586, 589, to be settled by the clear weight of authority. In the case at bar, if the false representations were made by Rockwell, they were made by him while acting \vithin the scope of his authority, in making a sale of land which the defendant em- ployed him to sell, and the instruction properly held the defendant answerable for the damage occasioned thereby. Lothrop v. Adams, 133 Mass. 471. The defendant urges that, even if in an action of contract the false representations of Rockwell as his agent might render the defendant responsible as the principal, he cannot thus be made responsible in an action of tort for deceit, and that in such action the misrepresentation must be proved to have been that of the principal. It is sufficient to say that no such point was presented at the trial, nor do we consider that any such distinction exists. 240 LIABILITY TO THIRD PERSONS. If the instruction, "If the representations were false in fact," etc., is to be treated as an abstract proposition, intended to cover the whole case, and fully to state under what circumstances the defend- ant would be responsible, it would be obviously erroneous. It does not require that the representations should be fraudulent, as well as false, and it does not contain the additional and necessary element that the plaintiff should have been misled and deceived by them. It is not, however, to be thus treated, but must be considered in its connection with the part of the case and the subject upon which instructions had been asked. Both sides had tried the case upon the assumption that Rockwell had made statements that were false, and that were also fraudulent, either as re- garded himself or the defendant. Rockwell had testified, on behalf of the plaintiff, that he had made these representations upon the authority of the defendant, and upon information derived from him, which statement had been denied by the defendant. The instruc- tions asked related solely to the question of agency, and do not themselves use the word "false" or "fraudulent," but only the word '"misrepresentations." The instruction given in response to the re- quest was, that the defendant would be liable for false and fraudu- lent representions made by Rockwell, if he employed him to sell the land, and if the latter made them under the defendant's authority in selling it. The correctness of the instructions on this point we have already considered. When, therefore, the presiding judge dealt with the liability of the defendant for representations made by P.ockwell on the information of others, — the only information of Rockwell, so far as the case shows, being derived from the defendant, — he was dealing with false and fraudulent represen- tations, by which the plaintiff was deceived, although in such case the falsity and fraud would be those of the defendant act- ing through Rockwell as his instrument. The part of the case to which this instruction, as well as the former ones relate, assumes that the representations were of such a character that the defendant was liable therefor, if he was liable for the misrepresentations of Rockwell. Whether those representations themselves, in the terms in which they were made, were sufficient to make the defendant liable, belonged to another part of the case, not then under discus- sion, and to facts as to which appropriate instructions were given. It is not a fair interpretation of the last instruction to hold, as the defendant contends, that it would allow the plaintiff to recover if there had been a representation erroneous in fact, and yet not knowingly so made, either by Rockwell, or by the defendant acting through Rockwell, nor do we think it could have been so understood. Exceptions overruled.^ "■Accord: Rhoda v. Annis, 75 Me. 17; Jeffrey v. Bigelow, 13 Wend. (N. Y.) .518; Darks v. Scudders-Gale Grocer Co. (Mo.), 130 S. W. 430. See Fidelity Funding Co. v. Vaughn, 18 Okla. 13. TORTS. 241 D andHALTJAPD ■ : why a iievv Iri^ai is a suit bottoi d by the defendants, in the sale 01: loitv biiar- ,, .. . . the State Insurance Company to the plaintiff. !)o,.ed deceit consisted in unfounded representations as to the ti- . 'ition of that company. The stock, at the time of the ding on the corporate books m the name of the defer'; and the sale wa^ by the two other def '?e plaintiff's tesl -is to be c^'edited, m. the jury has iw. -nt. Ho : . ./ts, permitted ju:,.. c to be t, hun, and the verdict has implicated ail ot the three defe^ the deceit of the transaction. But this finding, so. far as Mr. McKay is concerned, seems K- - justified by the evidence. I have altogether failed to nn-i )nony that connects him, in rf"«pect to ?.nv material particu- '.1, ;■ this affair. It is quite n that the !' ■■■■ ion was put on the books ^ n in the nan- : I : i'i:>' sundry others, with the moneys of the company, and, v; \a:':]^ [' . ' binding, had ' ' ^^evice of '—■ *]■■■ ■ ; of Mr. Mc: -ig his c< ■\e step e sale in 1 being the secretary 01 the insur TC .V testified that to the time of > 1 from any source that he \v:. d that he ^- ' • ' ■ ■ ' :;. ■ led to becoii ■n. If it be tru;;, a.^^cio: ^perty to the plaintiff, r ■d, wiiii ;i fraudulent intent, v. i.i! r M.' ;',,n- of the compan^. , IcKay. In the presence of this direct evidence, ed on t-^ '"..-;t him with the owner ■' ^ ' received '3 ir,a. 249, 254. se, and 1 i K<. 1/. ■- , ail' in t'lc-.l the pla^ . ll i-.^ ao' Ci'-'Oi; ecti which n case up that we; ?arH f • of i; If false in fact," : ■ 1 tended to cover > circumstances the defend- ■ >usly erroneous. It doe ^ be fraudulent, as well a.- ii'>ual and necessary element Misled and deceived by them. , but must be considered in its case and the subject upor? Both sides had tried the . -jkwell had made statements : also fraudulent, either as re- Rockwell had testified, on behah ,e these representations upon the ■5 on derived from hini, ndant. The instruc agency, and do not ,'" but only the wor I'^^^r *■'-■' f'-r,.,r.-rc ^^,^- •Irine er- ;- to be alraOSl ^'U;:./.; ■ ■ •; :■ 1 to the nrPseiH' r-i^r v. ill '\3\ii liu ' up all idea of a rescission of the contract of sale, and the -. .-ace is that, acordi;-- :.. rhe doctrine of the cases cited, b< t connect this last-n; endant with the fraud by \vi ■'• ■-■ effected, if i!„ .••.i...i ob<:- ■ • - •- '-- - ' -;- -^ : ■ .• has altogether failed. :ie xiilc should be m:!'' MATT ■ . RICE. \Vl5C0NSIN. ■1 fro,. ., .u....,: . . ... ..,. ..-.,. i. C. Ludwi-q-. Tmijc. Reversed. iy, and tor the purpose <: it. at nr near the co . , . - . j have any vd, even a suspicion ilJI. iic i\.-»; But even if his stock was, in reality, the I ' , , : ^-^ • . . ents to : ^ >,'(,,,' ... jfy this To support this suit against - -o him, and the case is entirely 'iestitute <. show that he authorized, or was- pri-^'v ^'^ ' fresentations in question. On ■ ^ Lse would be that af a sale it of an ' vendor. What- have p' ■; reofard to the exists, • !or and -, hrmly settled ... .iv. . authorities it is !0t be si I for the friud ■' iiic the aggrieved s; the first being a 1 of the money paid agent, founded on . suit based on the :-i:: , on account of the Lity or knowledge, by his agent. : ;d?e '-'in make complete restitu- . .*ion with respect to the ale. he has the right ■ dor,, on a tender to wiiey received in the transaction, such refusal on the part of the o the original wrong, so that he •^'0 doctrine declared with mi^'"'^^ ell and Martin, in the c- Ttiid their views on this s' /ie propounded by them a ds in Western Bank In this latter case . which was alleged to C' -. charged to have been m- le directors of such corpo , ::^ ■••■•ing his views, s;^■ rities, and which V iliis: Where a per: • !' shares belonging (.. '!>., and suit . ' re that con- TORTS. 243 tract, or the person who has been deceived institutes a suit against the company to rescind the contract on the ground of fraud, the misrepresentations are imputable to the company, and the purchaser cannot be held to his contract, because the company cannot retain any benefit which they have obtained through the fraud of their agents. But if the person who has been induced to purchase shares by the fraud of the directors, instead of seeking to set aside the contract prefers to bring an action of damages for the deceit, such an action cannot be sustained against the company, but only against the directors personally." Lord Cranworth, in his opinion, puts himself on the same ground, and says : "A person defrauded by the directors, if the subsequent acts and dealings of the parties have been such as to leave him no remedy but an action for the frauds must seek his remedy against the directors personally." It is obvious that the doctrine embodied in this decision, which is of so great weight as to be almost entitled to stand as authoritative in this court,, if applied to the present case will have the effect of taking from the plaintiff's suit so far as it relates to Mr. McKay, every semblance of a foundation. By bringing his action in its present form the plaintiff has given up all idea of a rescission of the contract of sale, and the consequence is that, acording to the doctrine of the cases cited, he must connect this last-named defendant with the fraud by which the sale was effected, if he would obtain a judgment against him. But in this he has altogether failed. The rule should be made absolute.^ MATTESON v. RICE. 1903. Supreme Court of Wisconsin. 116 Wis. 328. Appeal from a judgment of the superior court of Milwaukee county: J. C. Ludwig, Judge. Reversed. This in an action to recover damages suffered by plaintiff by rea- son of the alleged false and fraudulent representations of defend- ant's agent. The complaint sets out the facts substantially as herein- after stated, and alleges that the representations made by the agent were made fraudulently, and for the purpose of inducing plaintiff to rent said flat. The case was tried before a referee, who made find- ings as follows: "(i) That in 1897 ^^^ plaintiff leased a flat contained in a building belonging to the defendant, at or near the corner of Eigh- teenth street and Fond du Lac avenue, in the city of Milwaukee, and occupied the same as a tenant of the defendant under and pursuant ^Accord: Keefe v. Sholl, 181 Pa. St. 90. 244 LIABILITY TO THIRD PERSONS. to said lease until the building, including said flat, was destroyed by fire, in December, 1898, at which time all of the plaintiff's property contained in said flat was destroyed. "(2) That plaintiff made his contract or lease with one August Klempke, who was at that time the janitor of the said flat building, and employed by the defendant, and that the entire business of leas- ing said flat to the plaintiff, on the part of the said defendant, was attended to and conducted by the said August Klempke. "(3) That it was a part of Klempke's duties as an employee of the defendant to show the flats in the said building to prospective tenants, to tell them the amount of rent charged for such flats, and, in case of acceptance by such prospective tenants of the terms offered, to put them into possession, collect the first month's rent, and pay it over to the defendant; the subsequent rent being paid to or collected by the defendant's book-keeper. "(4) Adjoining the said flat occupied by the plaintiff, and a part of the same building, was a store, also owned by the defendant. At the time the plaintiff rented said flat, he asked Klempke how it would be in case there should be a fire in said store ; and said Klempke told him (plaintiff) that there was a fireproof wall between the said store and the flat about to be rented, and which was afterwards rented, by said plaintiff as aforesaid. "(5) That the plaintiff relied upon said statement to the effect that there was a fireproof wall between said store and said flat, and believed the same to be true, and that he would not have rented the said flat, or continued to occupy the same, except for said state- ment, and except for his belief, induced by said statement, that there was a fireproof wall between said flat and said store. "(6) That the partition wall between the said store and the said flat was not a fireproof wall, and was not a wall which could be con- sidered a fireproof wall or a firewall, in any sense in which such term or terms could reasonably be understood, but consisted of a single thickness of brick, between upright wooden supports. "(7) That said Klempke had no intention of defrauding the plaintiff in making said statement as aforesaid, but believed the said statement to be true. "(8) That said partition or wall between the said store and said flat was covered with plaster on both sides, and the true charac- ter thereof was not open to examination or inspection by the plaintiff. "(9) That had there been a firewall or a fireproof wall between said store and said flat, as was represented by said Klempke, the said fire probably could and would have been confined to the store building, and in that case the plaintiff's property contained in said flat would not have been destroyed. "(10) That said Klempke was not expressly authorized or in- structed by the defendant or anyone else to make any warranties or representations in regard to the said building, or as to the con- -4.-) art thereof, and ... ...v.cnce to the chaxa;.... ^. fendant until after said fire had oc me referee's conclusions were that it "f the atithority of Klempke as defendant ■n or \v that ti'. • ..on of such representations. : iie- iviidant, A motion to-ino('^^ -. ' :<- port was confirmed by ti ct^kd and the case is br li n the pleadings and li: ::.N, J. — An '- at ^I'-o •it defendant ^ false rt; • tne character ot » ig. The pi '.on. From the chani i.ng, it was i: , tiff to ascertain the truth of such representatic i:!v; fact represented was not true, plaintiff suffered lo.. . . , mtt acent had authority to show the flats, make leases, put tenanis '^ion, and collect the first month's rent. He had no express to make any "warranties or representations" in regard to ion of '' 'ng, and he had no intention of de- iiff, and i the statement he made to be ■'rue. -L be understood at the outset that we are I ■ i ion of the authority of an agent to make -.. .. A warranty, if false, gives rise to an action on ' '■ • - If we •-■"■■■ '- ■ ' *' - ^omplaint ^h , '.pes he- false re upcny arc or sh^iU be as he icpreseri' f T.^w, 728. The same authority, l arranty' and 'representation' ; ■ yi:\iiii^_^ . . ; vvays a representation, but the 'iv true, the lirst bi'iu^'- a moi-e comorehensi' .'esturn . must arise from express authoritv, or proof '^^nally attended v\n»i^ ^■'^'-^'nty. O^-- '^''' ' here the agent i no auti racter of his ■ rppresentai "? And incou :' conrt:^. r^n; 244 ti> said lease until th aid fiat, was destroyed by fire, in Dect oi the plaintiff's property contained in '''2) Th. act or lease with one August icntiaat, vvat- ^ an employee of the ... _i... .;_.!ig to prospective ten; f rent charged for such flats, and, '■ ;in-'n-ctive tenants of the terms • '. • . 'cct the first month's rent, .-.ent rent being paid intfflF, and a part c defendant. At • oicc how it would aid Klempke tcld - .en the said store ^ ( ■ auerwards rented, b> >ent to the ef' ' md said fiat, ,.< I hat he would not have rented the vl'f same, except for said state 1 by said statement, that there ij( Hnd said store, etween the said store and the saic' !Ot a wall which could l>e i. • , in any sense in which r: •<„• understood, but consisted of n T.'rliyht wooden supports. ' intention of defrauding the 'rr-c?;ri but believed *'^^- ^^' . the said store and the true cha C'i- inspection by the ; : .ir a fireproof wall ■c.d by said Klempke, een confined to the sloie and in roperty contained in said ''(10) iressly authorized or • any wp ■r as to t TORTS. 245 struction of any part thereof, and that the statements made by said Klempke in reference to the character of said wall were not known to the defendant until after said fire had occurred." The referee's conclusions were that it was not within the scope of the authority of Klempke, as defendant's agent, to make any rep- resentation or warranties respecting the construction of the build- ing, and that there was no liability on the part of defendant by reason of such representations. Judgment was ordered for the de- fendant. A motion to modify such findings was denied, and the re- port was confirmed by the trial court. No bill of exceptions was settled and the case is brought here for review on plaintiff's appeal upon the pleadings and findings. Bardeen, J. — An inspection of the complaint and findings dis- closes that defendant's agent, Klempke, made false representations as to the character of defendant's building. The plaintiff relied thereon. From the character of the building, it was impossible for plaintiff to ascertain the truth of such representations. Because the fact represented was not true, plaintiff suffered loss. Defend- ant's agent had authority to show the flats, make leases, put tenants in possession, and collect the first month's rent. He had no express authority to make any "warranties or representations" in regard to the construction of the building, and he had no intention of de- ceiving plaintiff, and believed the statement he made to be true. It must be understood at the outset that we are not dealing with the question of the authority of an agent to make warranties for his principal. A warranty, if false, gives rise to an action on contract. That is not this case. If we understand the complaint, the plaintiff sues to recover damages because of certain false representations made by the defendant's agent. A warranty is a collateral under- taking iDy which the warrantor contracts that certain facts in rela- tion to the property are or shall be as he represents them. 28 Am. & Eng. Ency. of Law, 728. The same authority, on page 739, says : "The terms 'warranty' and 'representation' are not synonymous. A warranty is always a representation, but the reverse is not neces- sarily true, the first being a more comprehensive term." This case seems to have become divested of any element of con- tract, and turns upon the question whether the representations made by Klempke were within the apparent scope of his employment. An agent's authority to warrant, as said in Westurn v. Page, 94 Wis. 251, 68 N. W. 1003, must arise from express authority, or proof that the transaction is usually attended with warranty. Cases may and frequently do arise where the agent may have no authority to warrant, and yet, from the character of his agency, his principal may be held liable in tort for false representations made by him. This distinction may seem somewhat fine and inconsistent, yet it is never- theless one amply recognized by the courts, and frequently enforced. It arises from the character and duty of the agent in relation to the 246 LIABILITY TO THIRD PERSONS. particular business in his charge. The g^eneral HabiHty of the princi- pal is as stated in the late case of Hoyer v. Ludington, 100 Wis. 441, 76 N. W. 348, where the following language was used : "There is no doubt of the general proposition that if an agent is employed to effect the sale of lands for his principal, and he does so by means of false representations in respect to the land conveyed, even without the authority or knowledge of his principal, the latter is chargeable with such fraud in the same manner as if he had known or authorized the same. Law v. Grant, 37 Wis. 548 ; McKin- non V. VoUmar, 75 Wis. 82, 43 N. W. 800; Gunther v. Ulrich, 82 Wis. 222, 52 N. W. 88. And this is especially so when the principal accepts and enjoys the benefits of the purchase. Fintel v. Cook, 88 Wis. 487, 60 N. W. 788. But even then 'the representation which is to bind the principal must be made in reference to the subject-matter of his agency ; it must be made while the agent is acting as such ; and the making of such representation must be within the apparent scope of his authority.' Mechem, Ag. § 743." In Law V. Grant, 37 Wis. 548, the rule in such cases was stated with great strictness. It was there said : "If the agent effected it [the sale] by means of false representa- tions or fraud of any other description, although without authority from the plaintiff to do so, and although the plaintiff was entirely ignorant that he had done so, the legal status of the plaintiff is pre- cisely the same as it would have been had he made the false repre- sentations, or committed the fraudulent act to the same end, in person." It seems to have been assumed that the acts done or representa- tions made in that case were within the apparent scope of the agent's authority. The agent represented that valuable minerals had been found on the land. If the principal was bound by such repre- sentations, it is not difficult to see in this case that defendant was responsible for the representations as to the firewall. The repre- sentation of the existence of such wall was one of the inducements that led the plaintiff to make the lease he did. In the one case the representation of a mineral discovery induced the sale, and in the other the representation of the existence of a firewall induced the lease. The one seems to have been as much within the scope of the agent's employment as the other. The representation as to the existence of the firewall referred to the safety and condition of the premises. If it existed, the fact was an inducement to plaintiff to make the lease he did. Suppose plaintiff had asked the agent whether the roof leaked or the plumbing was in good condition ; would not the agent have had implied authority, from the fact that he stood representing the owner, to have made answer to such questions? The difficulty experienced in cases of this kind is as to the proper understanding of the phrase "within the scope of his agency." It cannot properly be restricted to what the parties in- i.Lf n: -^n 1 1 i- authority intended l. , ^ome of the c, : tiie make the repre- ■[. and y to-trr' ct was ipal, it might be « .iwiaating in fraud v ....- uj. ted by the connectioi; ct with t ■'-■- --"icy, we find o nnectior; ;at the act w; . virtue i; the particii' • ipe of the '.: ach acts and things as are dircciiy connt: r» the business in hand. He may not a. . •ay do, but where the matter in controvers ■ L. and becomes a necessary part of the transav i ration, and an inducement to the acceptance of tv . whom the representations are made, then we ■'within the scope of ^ib'^ agency." If the pri:, g his bi ith a view of leasing, inq of fire, ition of plumbing, and the — lessee, would have been perfectly natural and in accordance iinary business foresight. Any false answer material to such % and afffecting the proposed tenancy, would have made tho .1 liable. Substitute the agent with authority to lease; how situation changed ? The considerations mentioned vvere I made. would , not ::l - l the agent . . . /er to make ' answer such questions regarding th the building as v.- •■ " pvident to tli iut. Such autho'. from the r; i^es are 497- '^'' : \ 1 >'.jr C'"if" ^V ' ■^2, 43 : ns were ma^ ■' - h, 82 Wis. 2A. •- 0^ , ^i-'- statement as < to th:. s induced to ; pui ■^.wAi n''7Wis. 548;McKin- unther v. Ulrich, 82 > when the principal • Fintel v. Cook, 88 ^ntation which is !e subject-matter ' e while the agent is acting as such ; cntation must be within the apparent -n, Ag. § 743." 48, the rule in such cases was stated lere said: le] by means of false representa- .tioii, although without authority .d aithov iaintiff was entirely he lega: . . ,. : the plaintiff is pre- •e been had he made the false repre- fraudulent a ' 'he same end, in ' ' '^ the acib aoue or representa- the apparent scope of the d that valuable minerals had ,:il was bound by such repre- in this case that defendant was ^ as to the firewall. The repre- wall was one of the inducements :ase he did. In the one case the -^rv induced the sale, and in the ce of a firewall induced the s much within the scope of r. The representation as to the • the safety and condition of the an inducement to plaintiff to lintiff had asked the agent ■ing was in good condition ; authority, from the fact th '. ^lave made answer to s..> .; . of this kind is as to iiiii the scope of his .ted to what the parties in- TORTS. 247 tended in the creation of the agency. Nor can the question be de- termined by the authority intended to be conferred by the principal. As stated in some of the cases, we must distinguish between the authority to make the representations which amount to a fraud, and the authority to transact the business in the course of which the fraudulent act was committed. Tested by reference to the intention of the principal, it might be conceded that the making of representa- tions culminating in fraud was not within the scope of the agency ; but, tested by the connection of the act with the property and busi- ness of the agency, we find a direct connection between such act and business, and that the act was done by virtue of the authority of the agent in the particular matter. See Reynolds v. Witte, 13 S. C. 5. The scope of the agent's authority reaches out, and permits him to do such acts and things as are directly connected with and es- sential to the business in hand. He may not do everything his principal may do, but where the matter in controversy directly ap- pertains to and becomes a necessary part of the transaction under consideration, and an inducement to the acceptance of the deal by the party to whom the representations are made, then we may say that it falls "within the scope of the agency." If the principal had been present, showing his building, with a view of leasing, inquiries regarding the danger of fire, the condition of plumbing, and the like, from the lessee, would have been perfectly natural and in accordance with ordinary business foresight. Any false answer material to such inquiries, and affecting the proposed tenancy, would have made the principal liable. Substitute the agent with authority to lease ; how is the situation changed? The considerations mentioned were germane to the transaction. They operated as an inducement to the making of the lease, and the referee has found that, if the represen- tations had not been made, the lease would not have been entered into. The fact that the agent had power to make the lease gave him authority to answer such questions regarding the nature and con- struction of the building as were not evident to the senses of a pros- pective tenant. Such authority arises from the nature of the trans- action and the enforced reliance of the tenant upon the agent's answers. The fact that the agent believed such representations to be true, and had no intention to deceive the tenant, does not lessen defendant's liability. That question was settled early in the history of the jurisprudence of this state, and some of the cases are men- tioned in Davis v. Nuzum, 72 Wis. 439, 40 N. W. 497. The sub- ject is discussed in McKinnon v. Vollmar, 75 Wis. 82, 43 N. W. 800, where a sub-agent pointed out the wrong land to the purchaser, and where false representations were made as to the amount of timber thereon. In Gunther v. Ulrich, 82 Wis. 222, 52, N. W. 88, the agent of the vendors made a false statement as to the location of their lots, whereby the vendee was induced to purchase the same. The vendors were held liable for such misrepresentation by the agent. 248 LIABILITY TO THIRD PERSONS. whether intentional or not. If an ag'ent to sell has authority to point out the location of the land he desires to sell, it is difficult to see why an agent to lease has not authority to describe the building and its surroundings which he desires to lease. See Porter v. Beat- tie, 88 Wis, 22, 59 N. W. 499; Beetle v. Anderson, 98 Wis. 5, 73 N. W. 560; Krause v. Busacker, 105 Wis. 350, 81 N. W. 406; Hart V. Moulton, 104 Wis. 349-359, 80 N. W. 599. As already suggested, such authority seems to fall naturally from the relation of the parties, the nature of the business intrusted to the agent, and the circum- stances found by the referee. In this view, the conclusions of the referee and the trial court were erroneous and the judgment must be reversed. There being no bill of exceptions, and no finding as to the amount of the plaintiff's loss,, the court below is directed, if necessary, to take further testimony upon the subject, to determine the amount of such loss, and to enter judgment therefor for the plaintiff. By the court. — So ordered. FRIEDLANDER v. TEXAS AND PACIFIC RAILWAY COM- PANY. 1888. Supreme Court of the United States. 130 U. S. 416. Friedlander & Co. brought suit in the district court of Texas, in and for the county of Galveston, against the Texas and Pacific Rail- way Company, to recover for the non-delivery of certain cotton named in an alleged bill of lading hereinafter described, of which they claimed to be assignees for value, their petition after counting upon said bill of lading, thus continuing: "That the said defendant, fraudulently contriving to avoid its liability to these plaintiffs, pretends and alleges that the said cotton was not so delivered as in and by said bill of lading is recited and acknowledged, but that the said bill of lading was executed without the receipt by its said agent of any of said cotton, all of which said pretences on the part of the defendant, plaintiffs allege are untrue ; but they say that even if it be true that no cotton was delivered to said defendant as in and by said bill of lading is recited and ac- knowledged, yet is the defendant estopped from setting up that fact in defence of plaintiff's cause of action upon said bill of lading, be- cause these plaintiffs say that the said bill of lading was executed in form negotiable and transferable by indorsement under the usage and customs of merchants, and that these plaintiffs, relying upon the validity of said bill of lading in all respects and upon the facts therein stated, that said cotton had been delivered to said defendant. rder and at .... .-cud bill of !-'^' dollars on, to \\. ns ii nieiitioncu as ;. eived by defenda^ said bill of lading- tor i >! payment, with inter; :he fraud practisf ■ ;ancc of said bill -in he was auth'. • -: .I'ped to of the to comply '• ' that u I it to b. iiificatii.-. ■ from tiv-. . agent upon m the ordinarj' h.". the defendant to Z' • m was ' ages on . >aid bill of lading to tht. dollars, with interest thereon, at the rat . per annum, from the date of payment thereof as afore- if it be true, as alleged, that defendant receive said cotton ;i of lading mentioned, then plaintiffs claim of defendant ;ilue thereof, to wit, the sum of fifteen thousand dollars, est thereon from and after the 6th day of December, 1883, before which time deter uld have delivered said !er said bill of ladiiT^:. to the true intent and ■lereof." ■if demurred, and al.^ ^ .. denying "all 3n.' ions in the petition contained." The case ed to the Circuit '■■■— if the United ^"' ■ ict of Texas. • 1 bv leave station. .ant's lin he was auth. receive . •^ and to e.XL. ... ,■ .^t' 1.., . m received 1 id 6th dav of November, jf^^ ait, whereby he I the said Joseph ......... t good order, to be tn ' " . and did dc-- - "'- Iinsfein; an' ■e saia L. ;ig was execu:.c.. ■la i>y i-i Easton, raudu- :-aslua see why an agent h and its surroundin tie, 88 Wis, 22, 5<,> N. W. 560; Krn- ■v . Moulton, 10 . such authority -^ the nature of ' stances for In thi^ •. erronc of exc the CO up : i U : ■ :■ sell has authority to to sdl, it is difficult to .ty to d '■ft building lease. : ler v. Beat- V. .Anderson, 98 Wis. 5, 73 vv iS. 350, 81 N. W. 406; Hart VV, 599. As already suggested, from the relation of the parties, ! to the agent, and the circum- :: referee and the trial court were >c reversed. There being no bill the amount of the plaintiff's loss, ecessary, to take further testimony '.t; amount of such loss, and to enter ND PACIFIC RAILWAY COM- SiJpR^' (■: United S < 30 U. S. 416 uamcJ they ciai'] upon said by its CLl form negotiable and and customs of 'mer'^^^ validit) of said bi therein stated, that sa -.lit in the district court of Texas, in linst the Texas and Pacific Rail- non-delivery of certain cotton hereinafter, described, of which !'ie, their petition after counting uing: alently contriving to avoid its and alleges that the said cotton lid bill of lading is recited and of lading was executed without 'f said cotton, all of which said \ plaintiffs allege are untrue; ' no cotton was delivered to- f lading is recited and ac- d from setting up that fact :pon said bill of lading, be- '■} of lading was executed in orsement under the usage 'lointiffs, relying upon the :ts and upon the facts vered to said defendar^ TORTS. 249 as aforesaid, and that defendant had contracted to carry and deliver said cotton as aforesaid, advanced to the said Joseph Lahnstein and paid out upon his order and at his request and in consideration of his said transfer of said bill of lading to these plaintiffs the sum of eight thousand dollars on, to wit, the loth day of November, 1883, and that said payment was made and advanced upon the faith of the re- citals and effect of said bill of lading as a contract to deliver the cot- ton therein mentioned as aforesaid, and that if the said cotton was never received by defendant, yet ought it to be held to the terms of the said bill of lading for the indemnification of these plaintiffs for said payment, with interest thereon from the date thereof, be- cause of the fraud practised by the said agent upon these plaintiffs in the issuance of said bill of lading in the ordinary form and man- ner wherein he was authorized by the defendant to act, and de- fendants are estopped to deny that said cotton was received as against the claims of these plaintiffs for damages on account of defendant's failure to comply with said bill of lading to the extent of eight thousand dollars, with interest thereon, at the rate of 8 per cent, per annum, from the date of payment thereof as afore- said ; and if it be true, as alleged, that defendant receive said cotton in said bill of lading mentioned, then plaintiffs claim of defendant the full value thereof, to wit, the sum of fifteen thousand dollars, with interest thereon from and after the 6th day of December, 1883, when and before which time defendant should have delivered said cotton under said bill of lading, according to the true intent and meaning thereof." Defendant demurred, and also answered, denying "all and singu- lar the allegations in the petition contained." The case was subse- quently removed to the Circuit Court of the United States for the Eastern District of Texas, whereupon by leave the defendant amended its answer by adding these further averments : "That one E. D. Easton, on the 6th of November, 1883, was the station agent of defendant at Sherman station, in Grayson county, Texas, on the eastern division of defendant's line in Texas, and that as such agent he was authorized to receive cotton and other freight for transportation and to execute bills of lading for such cotton and other freight by him received for the purpose of transportation by defendant. "That on the said 6th day of November, 1883, the said Easton, combining and confederating with one Joseph Lahnstein, did fraudu- lently and collusively sign a certain bill of lading purporting to be his act as agent of defendant, whereby he falsely represented that defendant had received from the said Joseph Lahnstein two hundred bales of cotton in apparent good order, to be transported from Sherman to New Orleans, La., and did deliver the said false bill of lading to the said Joseph Lahnstein; and defendant says that in point of fact the said bill of lading was executed by the said Easton 250 LIABILITY TO THIRD PERSONS. fraudulently and collusively with the said Lahnstein without receiv- ing any cotton for transportation, such as was represented in said bill of lading, and without the expectation on the part of the said Easton of receiving any such cotton ; that the said pretended bill of lading was the one that is set out in the petition of the plaintiffs, and was false, fraudulent and fictitious, and was not executed by de- fendant nor by its authority, and that the said Easton only had authority as agent aforesaid to execute and deliver bills of lading for freights actually received by him for transportation," The cause was submitted to the court for trial, a jury being waived, upon the following agreed statement of facts : "ist. On November 16, 1883, at Sherman station, in Grayson county, Texas, on the eastern division of the Texas and Pacific Rail- way Company, E. D. Easton, agent for the defendant at said sta- tion, executed as such agent a bill of lading, of which a copy is hereinafter given, and delivered the same to Joseph Lahnstein, the person named in said bill of lading. "2nd. That said Easton was at the time and place aforesaid the regularly authorized agent of the defendant for the purpose of receiving for shipment cotton and other freight for transportation by defendant over and along its line from Sherman station afore- said, and that said bill of lading was in the usual form and made out upon the usual printed blanks in use by said defendant at said station, and that said Easton was authorized by said defendant to execute bills of lading for cotton and other freight by him received for the purpose of transportation by the defendant. "3d. That the said Joseph Lahnstein indorsed said bill of lading by writing his name across the back thereof and drew a draft on the plaintiffs in this cause on or about November 6, 1883 (of which draft a copy is hereinafter given), for the sum of eight thousand dollars, payable at sight to the order of Oliver & Griggs, and at- tached said draft to said bill of lading so indorsed, and on or about November 6, 1883, forwarded the same through said Oliver & Griggs for presentation to and payment by the plaintiffs in this cause; that in due course of business Oliver & Griggs forwarded said draft, with bill of lading attached, to New Orleans, where the same was presented to and paid bv plaintiffs on or about November 10, 1883. "4th. That in paying said draft said plaintiffs acted in good faith and in the usual course of their business as commission mer- chants making advances upon shipments of cotton to them for sale, and without any knowledge of any fraud or misrepresentation con- nected with said bill of lading and draft, and with the full and hon- est belief that said bill of lading and draft were honestly and in good faith executed, and that the cotton mentioned in said bill of lading had been in fact received by said defendant as represented in said bill of lading. rh. Th rl's had .' drafts ■'^-■'.ilar ....... v.. ..iding, si,£, . . - — -. • .'fore- cotton shipped them by > h l^hi: '•}} I 111. s as commission merchants j" a-.^ -...-■ " and that the cotton so previously ad-. • liffs in the rhe bills of ; . and the bill or -.: ed by plaiiit'^l'- fendant. "6th. Tha., .>. j...... ..: , ... ,. , ; .,.,. .. .. 1883, was executed by said E. D. Easton frai ith said Lahnstc . ation, such as 's ' ae expectation ■' " -ion oi i cotton; that sa; : .ein had :Mned in one other case, whereDy said Easton signed :.v_red to the said Lahnsteip a similar bill of lading for thiv,v. , . dred bales of cotton which had not been received, and which '::i: r. ' '--... :-- 1 j^Q expectation of receiving, the latter-named bill been given early in November, 1883, but that i^i.L.ntiiis ill tiiiii suit had no knowledge whatever of the fa< 1!' *bi:- (sixth) clause until after they had in good faith 1 upon the bill of lad on and the draft thereto at- - o them pre'^ented as a.- ....... the sum of $8,000, as M.-r..:,,., before slated. "7th. That the cotton mer;*--"^^ ■- "id bill of ladH ■ vember 6. 188;^). had the san. 'Iv received uid have o«. . n was not r\. . ^- : _ _ ^ ".r -nt when said bill of lading was by him exec transaction was, from first to last, customary a of trade, and in accordance with the usage anci r88^. and Ic thereto Otis on detendan ii station ant is a corpora and existir.;' n the pet;' ber 10, e has b iien toiiov\.s \v]{ of lading, indorsed by :■,, it recei\ '.d in sai' iding, V n on the part of the sai ■ ' ^ ■■■■■ . .hat tii- ' " ' pretended bi of 'U the p' the plaintiff. aiK) .:).-- i\:: s, and v. eciited by d'^ fciidant n<.: 'iiat tlie lon only hat aiT Uls of ladin' for The die couit lor trial, a jury bein; ' .'vfi' cd statement of facts: :, at Sherman station, in Gray so : ision of the Texas and Pacific Rail w;-. ,;ent for the defendant at said str- '!' ' ' " 7. of which a copy : Joseph Lahnstein, tli. ug. at the time and place aforesai ■'■.; '.eg; . f the defendant for the purpose o ■ '• id other freight for transportation ; line from Sherman station afori, ;• was in the usual form and mad ..s in use bv said defendant at sav by said defendant i eight by him receive' tiie defendant. 'in indorsed said bill of ladir hs liack thereof and drew a draft < 'ii about November 6, 1883 (of whit dr. 1), for the sum of eight thousan dollar^ ' r of Oliver & Griggs, and tached . . so indorsed, and on or Noventixi u.c same through said Oliver .. '>i,::r;- in- oavment by the plaintiffs in tl: ss Oliver & Griggs forw.^ ' ill New Orleans, wher< •ffs on or about Novc That . I said plaintiffs acted ' ! ' ' ss as commission :tton to them foi ■ aud or misrepresentatioji ift, and with the full anci csL tw'i: .i t 1 draft were honestly and i; good faith . ton mentioned in said hi'! • lading had f.aid defendant as repre-- tn said bill < TORTS. 25 1 "5th. That plaintiffs had previously paid one or more drafts upon similar bills of lading, signed by the said Easton as agent afore- said, for cotton shipped them by said Joseph Lahnstein, for sale by plaintiffs as commission merchants for account of said Joseph Lahn- stein, and that the cotton so previously advanced upon was received by plaintiffs in the due course of transportation, pursuant to the terms of the bills of lading upon which they made advances respect- ively, and the bill of lading of November 6, 1883, was the first re- ceived by plaintiff's from said Lahnstein and not fulfilled by de- fendant. "6th. That, in point of fact, said bill of lading of November 6, 1883, was executed by said E. D. Easton fraudulently and by col- lusion with said Lahnstein and without receiving any cotton for transportation, such as is represented in said bill of lading, and with- out the expectation on the part of the said Easton of receiving any such cotton ; that said Easton and said Lahnstein had fraudulently combined in one other case, whereby said Easton signed and de- livered to the said Lahnstein a similar bill of lading for three hun- dred bales of cotton which had not been received, and which the said Easton had no expectation of receiving, the latter-named bill of lading having been given early in November, 1883, but that plaintiffs in this suit had no knowledge whatever of the facts stated in this (sixth) clause until after they had in good faith paid and advanced upon the bill of lading sued on and the draft thereto at- tached, to them presented as aforesaid, the sum of $8,000, as herein- before stated. "7th. That the cotton mentioned in said bill of lading (of No- vember 6, 1883), had the same been actually received by defendant and forwarded to plaintiffs, would have been worth largely more than the amount so advanced by said plaintiffs as aforesaid — that is to say, would have been worth about $10,000, and 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 and in the usual course of trade, and in accordance with the usage and customs of merchants and shippers and receivers of cotton. "8th. That on said November 6, 1883, and long prior thereto and ever since, the headquarters and main offices of defendant were and have been connected by railroad and telegraph communication with all stations on defendant's railroad and with Sherman station aforesaid, among others. "9th. That the defendant is a corporation created and existing and domiciled as alleged in the petition. "loth. That on November 10, 1883, said Joseph mentioned above was insolvent, and that he has been insolvent ever since and is so now." Then follows bill of lading, indorsed by Lahnstein and with draft 252 LIABILITY TO THIRD PERSONS. of Friedlander & Co. for $8,000 attached, acknowledging the re- ceipt from Joseph LL,hnstein of "two hundred bales of cotton in ap- parent good order, marked and numbered as below, to be transported from Sherman to New Orleans, La., and delivered to the consignees or a connecting common carrier," and proceeding in the usual form, Lahnstein being named as consignee, and directions given, "Notify J. Friedlander & Co., New Orleans, La." The circuit court found for the defendant, and judgment was rendered accordingly, and writ of error thereupon brought to this court. Fuller, C. J. — The agreed statement of facts sets forth "that, in point of fact, said bill of lading of November 6, 1883, was exe- cuted by said E. D. Easton, fraudulently and by collusion with said Lahnstein and without 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 com- bined in another case, whereby Easton signed and delivered to Lahn- stein 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 exe- cuted 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 drawai from the 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 company 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 representatives 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 articles of merchandise, in that they are symbols of ownership of the goods they cover. And as no sale of goods lost or stolen, though to a bona 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, TORT:;.. -"^;^;^ has so put i: into, the power of another to •jccupv hi-^ ro- usi- 'v .' . . ■ ■' '. '■;om assc iser, i c.i i.;.^...,. 10 his hurl ... .... ''"- id Co., loi U. S. 557, 563: i - ^' - - d, 3 El. & Bl. 6-.., s commercial paper i: and ad', general, < cm, and ot tiie right tu receive such prupetiy at uie place oi _>„ very. Such heing the character of a bill of lading, can ; ..^o^. .r n ,.,x,-.,,-).,or( carrier ^' ^ ^" ■''is never actually .0 w, becau i" its agents, having jo • •■ biiis Oi nother person is.^. ■";•• . in the ■ . ? !* Ihis court that V-S-, il of lading for g put on board the vessel, and, it ne does so, his act does nor bmd tr.e o^'•^er of the ship even in favor of an innocent purchaser. Th.e I eman v. Buckingham, 18 How. 182, 191 ; The Lady Franklin, 8 ' ■ . ; 5 . - " " !d V. Vinton, 105 U. S. 7. And this agrees with the , . the English courts. Lickbarrow v. Mason, 2 T. R. ;•. r,rant v, Norway, 10 C. B ' ^^x v. Bruce, 18 Q. B. D. 147. • : :-; receipt of the goods," - Itistice Miller, in Pollard v. , /, "lies at the found< he contract to c 'O goods are actual^" ■ ' f". c^n he ;v; y or to deliver." V ,nn contracts made m ^".■.<- .-. . w, 1 . carriers by land, as well as carriers bv •_. . -; - • ^" i''hews In T- l . ■ ' ii.ig also: '.mitt in error any cotton at or by the bills of lading, it is • d not be liable for the deficienc} cases of The Schooner Free"^ '■■■■■■ '<\ Pollard V. Vinton. 105 U. S liiun to : . _ . or omit' s.tein to impose 1 not authorize ;.,.-i. .. . )Ot assume authority itself to ' the mere' rt'on. f<"> PERSONS. lander i^ •nt good O' ;i':u:l. FULLH of merchandi tliey cover. . fide purchasr although il. b ■/ the re- , .: ....'.:> :j: .v,.L^n in ap- below, to be transported • uelivered to the consignees proceeding in the usual form, ind directions given, ''Notify a."" The circuit court found ds rendered accordingly, and writ - court. statement of facts sets forth "that, i;-o- Qf November 6, 1883, was exe- • ilently and by collusion with said : asportation, such r the expectation •i of rec ti ;" and and Lai ■■.-Ay com- Easton signed and delivered to Lahn- r cotton "which had not been received. ad no expectation of receiving;" and ''"'". was not : ■ ■- nor expected to lid bill r. vas by him exe- . customary." i ni, such as i? canno! " to operate as a wn froiii ..Lcment is that no -• transportation to the agent at rises, then, whether the agent of tations can bind the company by , :3^- for goods not actually placed in ;. to a per=;on fraudulently pretending ' ' . '• ' such goods, in ',1., ' .; -rtherance of the ■liates a draft, with the false bill •'"^^'e and promissory, notes are in the commercial world as m to perform their peculiar >houlcl not be bound to look them should '.• ' part. But 1: and perform different functions, ton, grain, iron or other articles mbols of ownership of the goods • ^ost or stolen, though to a bon-' lie ownership of the per >i:oTen, so the sale of can have no such efi o true owner, by negligei TORTS. 253 has so put it into the power of another to occupy his position ostensi- bly, as to estop him from asserting his right as against a purchaser, who has been misled to his hurt by reason of such negligence. Shaw V. Railroad Co., loi U. S. 557, 563 ; PoUard v. Vinton, 105 U. S. 7, 8; Gurney v. Behrend, 3 El. & Bl. 622, 633, 634. It is true that while not negotiable as commercial paper is, bills of lading are com- monly 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 deliver>\ Such being the character of a bill of lading, can a recovery be had against a common carrier for goods never actually in its possession for transportation, because one of its agents, having authority to sign bills of lading, by collusion with another person issues the docu- ment 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 actually 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 v. Buckingham, 18 How. 182, 191 ; The Lady Franklin, 8 Wall. 325 ; Pollard v. Vinton, 105 U. S. 7. And this agrees with the rule laid down by the English courts. Lickbarrow v. Mason, 2 T. R. 'j'j; Grant v. Norway, 10 C. B. 665 ; Cox v. Bruce, 18 Q. B. D. 147. "The receipt of the goods," said Mr. Justice Miller, in Pollard v. Vinton, supra, "lies at the foundation of the contract to carry and deliver. If no goods are actually received, there can be no valid con- tract 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 v. Knight, 122 U. S. 79, 87, he adding also: "If Potter (the agent) had never de- livered 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 estab- lished by the cases of The Schooner Freeman v. Buckingham, 18 How. 182, and Pollard v. Vinton, 105 U. S. 7." 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 Friedlander & 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 docu- ments 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. Railroad companies are not dealers in bills of exchange, nor in bills of lading; they are carriers only, 254 LIABILITY TO THIRD PERSONS. and held to rigid responsibility as such. Easton, disregarding the object for which he was employed, and not intending 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 apparent authority to do an act so utterly outside the scope of his employment and of its own busi- ness. The defendant cannot be held on contract as a common car- rier, in the absence of goods, shipment and shipper ; nor is the ac- tion maintainable on the ground of tort. "The general rule," said Willes, J., in Barwick v. English Joint Stock Bank, L. R. 2 Ex. 259, 265, "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 v. London General Om- nibus Co., I H. & C. 526. The fraud was in respect to a matter 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. v. Charn- wood Forest Railway Co., 18 O. 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 can- not be redressed by a change of victim. Under the Texas statutes the trip or voyage commences from the 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 afifect the result here. We cannot distinguish the case in hand from those heretofore de- cided by this court, and in consonance with the conclusions therein announced this judgment must be Affirmed.^ ^ See collection of cases in accord with the principal case in Nat. Bank of Commerce v. Chicago, etc., R. Co., 44 Minn. 224, 232 and 233. On page 233, Mitchell, J., says : "The reasoning by which this doctrine is usually supported is that a bill of lading is not negotiable in the sense in which a bill of exchange or promissory note is negotiable, where the purchaser need not look beyond the instrument itself; that so far as it is a receipt for the goods it is suscepti- ble of explanation or contradiction, the same as any other receipt; that the whole question is one of the law of agency; that it is net within the scope of the authority of the shipping agent of a carrier to issue bills of lading where no property is in fact received for transportation ; that the extent of his au- thority, either real or apparent, is to issue bills of lading for freight actually received ; that his real and apparent authority — i. e., the power with which his YOKj";: TAVTA V. NEV. RAILRf RT OF ApPi . iu^G-rrirnlrrf ti- ll in one w; ws: •Received ••''-'?: articles 'unknown) h-< < bairrels The rec' ■ " ijed were r Comstock, New York" i in Ihc .^trine r of ^.cf^^cv in this d his ae -r to do ::..-r- "^ -1,1 De- 'of r. 3 Hill 362 ; Lj .ven, 25 ; are sc lainied . cii' 1 'i.:l.i lO rigi -r ■ disregarding the f L-;ect for which r intending by his act to , . :Mf(> ;t l^nf . s own and of Lahnstein, m the commission of the ... ■<.: lipun ! ■ v%oukl be going too far to h'j'ld the conu' • lances. estopped from denying" fha<- it '^ ■ " ' "'"v an act -•- 'itt'^r' \vn busi- i ijjnlraci as a common car- I and shipper; nor is the ac 1!( \] nip ; "The general rule," said •' ■- ' ' -k Bank, L. R. 2 ^-■ every such wroi.' ^e of the sev tir.and or pi ' Limpi 'General > I'raud V. . to a m vment o- 01 ir. It wa;- : on'v ' for merchant lich derived and ./c.L .lud fraudulent act. x\ Banking Co. v. Cham- TV, hut 1 . upon the deli\ cariKT caimor avoid his ' ' •p not actually on their \. do not affect the res all her'.. •t-r' f-om those heretofore de- e conclusions therein ■al case in Nat. Bank oi '). look b'. it is ?rT-i iiC power with which hu TORTS. 255 BANK OF BATAVIA v. NEW YORK, LAKE ERIE AND WESTERN RAILROAD COMPANY. 1887. Court of Appeals of New York. 106 N. Y. 195. Appeal from judgment of the General Term of the Supreme Court in the fifth judicial department in favor of plaintiff, entered upon an order made October 31, 1884, which denied a motion for a new trial and ordered judgment on a verdict directed by the court. (Re- ported below 33 Hun 589.) This action was brought to recover damages alleged to have been sustained by plaintiff in consequence of the wrongful issue by de- fendant, through its local freight agent at Batavia, of two bills of lading. The recital in one was as follows : "Received from F. C. Williams the following articles (contents unknown) in apparent good order, viz., thirty-five barrels of beans." The recital in the other was the same, save that the articles described were "thirty barrels of beans." The consignee named was "I. T. Comstock, New York." The material facts are stated in the opinion. Finch, J. — It is a settled doctrine of the law of agency in this state that where the principal has clothed his agent with povv^er to do an act upon the existence of some extrinsic fact necessarily and pe- culiarly 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, pursviant to the apparent power, may rely upon the representation, and the principal is estopped from denying its truth to his prejudice. (North River Bank v. Aymar, 3 Hill 362 ; Griswold v. Haven, 25 N. Y. 595, 601 ; N. Y. & N. H. R. R. Co. v. Schuyler, 34 id. 30 ; Armour v. M. C. R. R. Co., 65 id. III.) A discussion of that doctrine is no longer needed or permissible in this court, since it has survived an inquir}^ of the most exhaustive character, and an assault remarkable for its persist- ence and vigor. If there be any exception to the rule within our jurisdiction it arises in the case of municipal corporations whose structure and functions are sometimes claimed to justify a more re- stricted liability. The application of this rule to the case at bar has principal has clothed him in the character in which he is held out to the world — is the same, viz. : to give bills of lading for goods received for transporta- tion ; and that this limitation upon his authority is known to the commercial world, and therefore any person purchasing a bill of lading issued by the agent of a carrier acts at his own risk as respects the existence of the fact (the receipt of the goods) upon which alone the agent has authority to issue the bill, the rule being that, if the authority of an agent is known to be open for exercise only in a certain event, or upon the happening of a certain con- tingency, or the performance of a certain condition, the occurrence of the event, or the happening of the contingency, or the performance of the condi- tion, must be ascertained by him who would avail himself of the results ensu- ing from the exercise of the authority." 256 LIABILITY TO THIRD PERSONS. determined it in favor of the plaintiffs and we approve of that con- clusion. 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 there- for specifying the terms of the shipment, but having no right to issue such bills except upon the actual receipt of the property for transportation. He 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 de- livered 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 application of the doctrine above stated to the facts presented. So much of it as rests upon the ground that no privity existed between the defend- ant and the bank may be dismissed with the observation that no privity is needed to make the estoppel available other than that which flows from the wrongful act and the consequent injurv. (N. Y. & N. H. R. R. C. V. Schuyler, supra.) While bills of lading are not negotiable in the sense applicable to commercial paper, they are very commonly transferred as security for loans and discounts, and carry with them the ownership, either general or special, of the property which they describe. It is the natural and necessary expectation of the carrier issuing 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 w^here he does not do that he must be understood to intend a possi- ble transfer of the bills and to aft'ect the action of such transferees. 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. (Mayenborg v. Haynes, 50 N. Y. 675; Maguire v. Selden, 103 N. Y. 642.) Those were cases in which the representations made were not intended and could not be ex- _^ .. .■, :0t all- ey were of a 'ills Li.c precise purpu->v., -• ..a. ^. ms d, of deceivinc^ the bank by ti nd the .an- or it, 'ntalty injured, hut have done \vi. -rv reason to expect. Considerat;-^.. . ... ^ t of an equitable estoppel, without referenc or directness of vions also, up- : to the :nown tci and his principal, it the rule compelled ti peril of the existence or absence of the c . ..; lically end the large volume of businesss founded iiills of lading-. Of whom sliall the lender inquire, the fact ? Naturally he would go to the freight ready falsely declared in writing t- ' Is he any more ntithorized to ■ than the written or ,! the lender gei permis- n^-h the freight hou^ . m'ne the books? If the it may not be easy ' y, and the books, if work of the sar^ .- agent. It ' '■ 1 fact of the shii- ne peculiarl "ier and .:e of thf of the L:ie bills t!' . -. jf the r:^ 1 have left the defendant free fror; he actual contents from those des< where nothing is shipped and th court and ju i? affirmed, v. ■■ mined it in ' and we approve of that c • -n. ■■'.'. Weiss tit of the defendant corpoiu li' ;■, a: J^arav ity it wa^i lo receive and for- w;.' ! fi-riinir . ;;--v— • ■ ■ ■^ lading there- to- ;. MiMn. no right to luai iL. -t'fty for lading .rrels of • •c>!i hem as ^o be forwarded ; nit addiii'^ reference to the re unknown. VVilhams drew a draft rhe money r.---- f the plaintiff by trans to secure ' i.e payment. It r .,\ Williams, or de- ] were the product of the plaintiff or such 'iy upon the faith of ....... .'.v: ,. ■,. c,,v learned and very able ansel which questions the application ' ' ' ^ So much of it •een the defend- rvation that no ^ ^ , ■ than that which i)d the consequent injury >t negotiable in the sense applicable commonly transferred as securit}- with them the ownership, either y which they descrilje. It is the of the carrier issuing them that : jthcr and advances l>e made up<:)n right to h>elieve, and never does is limited to the person to whc«n " the contrary, he is bound by s and to deliver the property ion of the bill of lading. . V to a delivery to the named Us as "non-negotiable:" and understood to intend a po??i- le action of such transfer! ji. - .; ■ the instances cited, in wh an estopi .he representations were Tg v. ilajTies, 50 N. Y. 675 ; Those were cases in which liic repix ended and could not be ex- TORTS. 257 pected to influence the persons who reh'ed upon them, and their knowledge of them was described as purely accidental and not an- ticipated. 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 chan- nels of business, 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 provide the basis of an equitable estoppel, without reference to ne- gotiability or directness of representation. It is obvious, also, upon the case as presented, that the fact or condition essential to the autliority of the agent to issue the bills of lading was one unknown to the bank and peculiarly within the knowl- edge of the agent and his principal. If the rule compelled the trans- feree to incur the peril of the existence or absence of the essential fact, it would practically end the large volume of businesss 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 permis- sion to go through the freight house 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 recital in the bills that the contents of the packages were un- known 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 prop- erty really delivered would have corresponded with the description in the bills. The facts of the case bring it, therefore, within the rule of estoppel as it is established in this court and justify the decision made. The judgment should be affirmed, with costs. All concur. Judgment affirmed.^ '^Accord: Sioux City, etc., R. Co. v. First Nat. Bank, 10 Neb. 556; Brooke 17 — Reinhard Cases. 258 LIABILITY TO THIRD PERSONS, (b) PERSONAL INJURY. GREGORY V. PIPER. 1829. Court of King's Bench. 9 B. & C. 591. Trespass for casting, throwing, placing, and depositing divers large quantities of earth, stones, bricks and rubbish against and upon the walls and gates and posts of the plaintiff. Plea, not guilty. At the trial before Alexander, C. B., at the summer assizes for the county of Cambridge, 1828, it appeared that the plaintiff occupied a public house called the Rising Sun, in Newmarket, with a stable- yard belonging to it, where he put up the horses of his guests. The way to the stable was by the back gate from the High street, through a yard called the Old King's Yard. A wall belonging to the plain- tiff separated his stable-yard from the Old King's Yard. The de- fendant having purchased the property surrounding the Old King's Yard, disputed the plaintiff's right to pass along the same to his stable, and employed one Stubbings, a laborer, to lay dovv^n a quan- tity of rubbish, consisting of bricks, mortar, stones, and dirt, near the plaintiff's stable-yard, in order to obstruct the way ; and Stub- bings, on the 26tli of April, and several following days, laid down rubbish accordingly, part of which rolled against plaintiff's wall and gates. It lay about two feet high against the plaintiff's wall for five or six yards in length. Stubbings being called as a witness on the part of the plaintiff, stated that he was employed by the defend- ant to lay the rubbish in the yard ; that the defendant had given him orders not to let any of the rubbish touch the plaintiff's wall ; that he executed those orders as nearly as he could, and accordingly laid the rubbish at first at the distance of a yard and a half from the wall ; and that the rubbish, being of a loose kind, as it became dry naturally shingled down toward and ran against the wall. He added that some of it would of course run against the wall. It further appeared that on the third of May, when an application was made by the plaintiff' to the defendant to remove the rubbish, the latter said he was determined not to remove it. Upon this evi- dence it was objected by the defendant that trespass was not main- tainable, inasmuch as the defendant had given express orders to the servant not to let the rubbish touch the plaintiff's wall ; that, there- V. New York, etc., R. R. Co., 108 Pa. St. 529. Wichita Sav. Bank v. Atchison, etc., R. R. Co., 20 Kan. 519. On page 523 of the last named case, Horton, C. J., says: "Instruments of this kind (bills of lading and warehouse receipts) are sui generis. From long use and trade, they have come to have among commercial men a well-understood meaning, and the endorsement or assign- ment of them as absolutely transfers the general property of the goods and chattels therein named as would a bill of sale." See Fifth Ave. Bank v. Forty-second Street, etc., R. R. Co., 137 N. Y. 23K f the wall was occasi' of the u-iT, and that case, !T.f ■ inain- hief Baron direci^i^i lh-. , . <.<> ii ior Liie eserved liberty to the defendant : , nter a lie nisi havin.s; been obtained ''ks, clly, were to have shown cau ".it i upon Denman and Gunnint . in an action on the case on;; vant, and not at all for a wilful v ,y his servant, Morley v, Gaisfo; Crickett, i East 106. And if a serv; . t exceed his authority, and thereby C' ot liable. Here the master gave expro ■ lay the rubbish so that it should not t' • [Parke, J. — The servant could not ex ' without some of the rubbish touching th' ;;ary consequence of the act ordered to be . -■ - 1 » gave the order must be taken to have contemplated ' onsequence of his own act. The rolling of the rubbish A\ was therefore as much the act of the defendant as ered it to be done.]. The master is liable only for .the sequences of the act. Here the servant by extraor- i.L^ht have prevented the rubbish touching the plaintiff's -iety of the Inner Tem^ple liave authorized the \>vv\\\.- 10 obstruct windows opening upon their premi- +he wall of tb ' es in which the ^^' \r>:\ wilfully kn a brick, that so ,le. If f' .i^n had don have bee' : case, but r e only r r , Whether f The m.; =red the serv > let it touc'n or lean against * executior •■- order it was : 1 - of the . . d to be dc ish 'he wall, . . i'he :\ thrxt le rule A his mas- a restrictior ' executing X for the serve.;. \v: ith, and tbf- he order, breaks the restrict! ose the I, and t; caitlc, but not to K. l.at the cattle went v. 1829. SCH. 9B. &C. 591. Trespass Uji large quantities upon the wa!' - At the trial county • public ;• yard be; way to •' a A'rird Tii? - fen ati. he tht lui' and tha : shi^ • of ..ax;..^,. • -- .^positing diver icks and rubbish against an> 01 the plaintiff. Plea, not guilt; B.. at the siunmer assizes for tV 'aintiff ocGup' -tt, with a s t up the norses of his guests. Tli .. .. gate fron^ il-.- TTIu'i >;treet, througl Vard. A v to the plair ''"im the Cm'. :^' :;v; ' 1 ard. The dc >pertv surrounding the Old King" \long the same to hi to lay down a quan bricks. tones, and dirt, nea Ttler t'. .: the way; and Stub several following days, laid dow • ^^ rolled against plaintiff's wa ajrainst the plaintiff's wall fo " d as a witne od by the dc. ; that ilie deiciulant had given hu ■ ish touch the plaintiff's wall; tha 'v as he could, and accordingly lai' of a yard and a half from the wall ose kind, as it became dry natural! * the wall. He added that son: wall. en an a ^ move the . to remove it. Upon this • .. .ant that trespass was not n. nt had given express orders t' ch the plaintiff's wall; that, tiicr'. 11-1,:.. c„,. Bank V *'^ Ted case, art con : -unde ., ment of chattels ' See Fifth . ] .d .anl< lutely as \v : V. -itei jperty of the goou , etc., R. R. Co., 137 N. Y PERSONAL INJURY. 259 fore, the touching of the wall was occasioned by the negligence of the defendant's servant, and that case, not trespass, was therefore main- tainable. The Lord Chief Baron directed the jury to find a verdict for the plaintiff, but reserved liberty to the defendant to move to enter a non-suit. A rule nisi having been obtained for that purpose, Storks, Serjt., and Kelly, were to have shown cause against the rule, but the court called upon Denman and Gunning to support the rule. A master is liable in an action on the case only for the negligent con- duct of his servant, and not at all for a wilful unauthorized trespass committed by his servant, Morley v. Gaisford, 2 H. Bl. 442 ; M'Manus v. Crickett, i East 106. And if a servant being ordered to do a lawful act exceed his authority, and thereby commit an injury, the master is not liable. Here the master gave express directions to the servant to lay the rubbish so that it should not touch the wall of the plaintiff. [Parke, J. — The servant could not execute the orders of the master without some of the rubbish touching the wall; that was the necessary consequence of the act ordered to be done, and the person who gave the order must be taken to have contemplated the necessary consequence of his own act. The rolling of the rubbish against the wall was therefore as much the act of the defendant as if he had ordered it to be done.] The master is liable only for the inevitable consequences of the act. Here the servant by extraor- dinary care might have prevented the rubbish touching the plaintiff's wall. ' The Society of the Inner Temple have authorized the putting up of boards to obstruct windows opening upon their premises, but so as not to touch the wall of the premises in which the windows are. If a workman had wilfully knocked out a brick, that society would not have been liable. If the workman had done so through negli- gence they might have been liable in case, but not in trespass. Bayley, J. — The only question is, Whether the trespass was the act of the master. The master desired the servant to lay down the rubbish so as not to let it touch or lean against the wall of the plain- tiff. But if in the execution of the order it was the necessary or nat- ural consequence of the act ordered to be done that the rubbish should go against the wall, the master is answerable in trespass. The evidence shows that that was the natural consequence. The rule must, therefore, be discharged. LiTTLEDALE, J. — Where a servant does work by order of his mas- ter, and the latter imposes a restriction in the course of executing his order which it is difficult for the servant to comply with, and the servant, in execution of the order, breaks through the restriction, the master is liable in trespass. Suppose the case of two persons possessed of contiguous unenclosed land, and that the one of them desired his servant to drive his cattle, but not to let them go upon the land of his neighbor, and that the cattle went upon the land of 26o LIABILITY TO THIRD PERSONS. the neighbor, the master would be answerable in trespass, because he has only a right to expect from his servant ordinary, not extraordi- nary care. If the servant, therefore, in carrying into execution the orders of his master uses ordinary care, and an injury is done to an- other, the master is liable in trespass. If the injury arise from the want of ordinary care in the servant, the master will only be liable in case. Here the servant used ordinary care in the course of exe- cuting the master's order, and notwithstanding that, the rubbish ran against the wall. Parke, J. — I think that the defendant is liable in this form of action. If a single stone had been put against the wall it would have been sufficient. Independently of Stubbings's evidence there was sufficient evidence to satisfy the jury that the rubbish was placed there by the defendant, for he expressed his determination not to remove it. It does not rest there. Stubbings says he was desired not to let the rubbish touch the wall. But it appeared to be of a loose kind, and it was therefore probable that some of it naturally might run against the wall. Stubbings said that some of it of course would go against the wall. Now the defendant must be taken to have con- templated all the probable consequences of the act which he had or- dered to be done, and one of these probable consequences was, that the rubbish would touch the plaintiff's wall. If that was so, then the laying the rubbish against the wall was as much the defendant's act as if it had been done by his express com.mand. The defendant, therefore, was the person who caused the act to be done, and for the necessary or natural consequence of his own act he is responsible as a trespasser. Rule discharged.^ SEARLE V. PARKE et al. 1895. Supreme Court of New Hampshire. 68 N. H. 311. Action by George F. Searle against A. J. Parke and another. Trespass, de bonis, with a count in trover, for taking and carrying away and for the conversion of a diamond ring. Facts found by the court. The defendants were engaged in decorating the Statesman Building, and employed B and S, two irresponsible strangers, to assist them. June 20, 1894, it became convenient in the prosecution ^ "In the consideration of the question, as to the liability of the master for the injuries caused by his servant, the cases in which the wrong has been done by the command of the master must be distinguished from those in which there is no command. Where a master commands a thing to be done, and an injury results from the want of care in the servant whilst performing the order, the master is liable in trespass." Scott, J., in Douglass v. Stephens, 18 Mo. 362, 366. PERSONAL I 261 'k t'^ rr^ absence the ; the build- 1; possession > he door ..wd, B, hy dirt-. .,.. red the tlie window^ and admiti- iiey re- lii hour or s" - —" •■"'■ ■: role iher of the c m. ] for le- .>cau by iiiuig a ^ss in case J.— On the ed, the ■ ^ of the rJjK. form 01 - over in trespa5>s de bonis or trove .,.- .. .. ;, .. i... •their servar led in the tal ' that they i a . .an, 6 Man. I, 13 I\i . 634. It is not , .rt in or : . he trespass, and :n that they are Hable in their character as Vi the business for which B and S were engaged, r.-. • , ^^ .-cope of their employment. The mere fact that the 'heir servants is not sufficient to make the defend- the wrong. Wilson v, Peverly, 2 N. H. 548; Ar- ■'. H. 157; A Green, 62 N. H. 436. The recover in -.; , ast the defendants for negli- thieves as servants, because negligence i.«: not > quare c'-"- •- -^-^^-^dants wor;-^ '^-^ '■"' ' ■ in • It least. : nd enter ;ey • ' " ' ic for any uy iJT. and f^'^ -Ti •■ verable. Gilman v. Nov y, Torts, 68-77. The Ian •")f the unlawful act which .•:i. . 1 or pre ^ ' ' i.r-ra 'dsnts V antici- it. The others concurred.' to take the goods of C, and -■ B." Eac. Ahr.. Vol. a tif 26o LLV: the neighU:'r, the n: has only a right tr nary rao. If the <_• his masLt o 'T>a«;ter want ui ( in case, i cuting the ma; ' ]•/ actioij have hee't : in trespass, because he ordinary, not extraordi- ■ ying into execution the !ia an injury is done to an- [i the injury arise from the . c master will only be liable ly care in the course of exe- 'hstanding that, the rubbish ran ■cadant is liable in this form of li put against the wall it would > t Stubbing's's evidence there was . jry that ' ' >ish was placed -ressed ■ nination not to ■rubbings says he was desired not P)Ut it appeared to be of a loose able that some of it naturally might ^ said thr' ■ '^^ 'f it of course would 'efendar taken to have con- hich he had or- , ;ences was, that wall ii that was so, then ' ■? much the defendant's i;d. The defendant, .iu.^«.>. .i.v ..V. L^ be done, and for the ice of his own act he is responsible results ' ... .,1. the masti' Mo. 362, 366. lRKE et al. Hampshire. 68 N. H. 311. Trespass, ac ■■■•- ■■•■'. for lii- le defer. 'An«idcr; A. J. Parke and another. .over, for taking and carrying aid ring. Facts found by tlie m decorating the Statesman ' uisible strangers, to : c in the prosecution I rri the Hahilitv of the master PERSONAL INJURY. 26 1 of the work to enter, in his absence, the plaintiff's room in the build- ing, to the exclusive possession of which he was entitled, and the door of which was locked. B, by direction of the defendants, entered the room through the window, and admitted S by the door. They re- mained there an hour or so, during which one or both of them stole the ring. Neither of the defendants entered or went near the room. The plaintiff moved for leave to amend by filing counts in trespass quare clausum and in case. Carpenter, J. — On the facts stated, the defendants are not liable for the larceny of the ring in any form of action. To entitle the plaintiff to recover in trespass de bonis or trover, it must be shown that the defendants, personally or by their servants, acting within the scope of their employment, participated in the taking and conversion, or that it was taken for their benefit, and that they ratified the taking. 2 Greenl. Ev., § 631 ; Wilson v. Tumman, 6 Man. & G. 236, 242, 243; Lewis V. Read, 13 I\Iees. & W. 834. It is not claimed that the defendants took part in or ratified the trespass, and there is as little ground to claim that they are liable in their character as masters. Theft was not the business for which B and S were engaged, nor was it within the scope of their employment. The mere fact that the wrongdoers were their servants is not sufficient to make the defend- ants answerable for the wrong. Wilson v. Peverly, 2 N. H. 548 ; Ar- thur V. Balch, 23 N. H. 157; Andrews v. Green, 62 N. H. 436. The plaintiffs could not recover in case against the defendants for negli- gently employing thieves as servants, because negligence is not found. In trespass quare clausum the defendants would be liable in nominal damages, at least, for the breaking and entering, which they directed. They wcaild also be responsible for any damage directly caused by the act of breaking and entering, and for any consequen- tial injury that naturally and reasonably could be expected to result therefrom. For consequences neither natural nor probable, they would not be answerable. Gilman v. Noyes, 57 N. H. 627 ; Pol. Torts, 31-37 ; Cooley, Torts, 68-77. The larceny was not the immedi- ate or direct result of the unlawful act which the defendants directed. Whether it was the natural or probable consequence of the act — a consequence that the defendants reasonably ought to have antici- pated — is a question of fact. Gilman v. Noyes, 57 N. H. 62^. That it was such a consequence is not, and on the evidence reported could not properly be found. Judgment for the defendants. Blodgett, J., did not sit. The others concurred.^ _ ^ "If A command or request B to take the goods of C, and B do it, this action lies as well against A as against B." Bac. Abr., Vol. 4, title Trespass, G. i. 262 LIABILITY TO THIRD PERSONS. JOEL V. MORISON. 1834. Nisi Prius. 6 C. & P. 501. The declaration stated, that, on the i8th of April, 1833, the plain- tiff was proceeding on foot across a certain public and common high- way, and that the defendant was possessed of a cart and horse, which were under the care, government, and direction of a servant of his, who was driving the same along the said highway, and that the de- fendant by his said servant so carelessly, negligently and improperly drove, governed, and directed the said horse and cart, that, by the carelessness, negligence, and improper conduct of the defendant by his servant, the cart and horse were driven against the plaintiff and struck him, whereby he was thrown down and the bone of one of his legs was fractured, and he was ill in consequence, and prevented from transacting his business, and obliged to incur a great expense in and about the setting the said bone, etc., and a further great ex- pense in retaining and employing divers persons to superintend and look after his business for six calendar months. Plea — not guilty. From the evidence on the part of the plaintiff it appeared that he was in Bishopgate street, when he was knocked down by a cart and horse coming in the direction from Shoreditch, which were sworn to have been driven at the time by a person who was the sen^ant of the defendant, another of his servants being in the cart with him. The injury was a fracture of the fibula. On the part of the defendant witnesses were called, who swore that his cart was for weeks before and after the time sworn to by the plaintiff's witnesses only in the habit of being driven between Burton Crescent ]Mews and F"inchley, and did not go into the city at all. Thesiger, for the plaintiff', in reply, suggested that either the de- fendant's servants might in coming from Finchley have gone out of their way for their own purposes, or might have taken the cart at a time when it was not wanted for the purpose of business, and have gone to pay a visit to some friends. He was observing that, under these circumstances, the defendant was liable for the acts of his servants. Parke, B. — He is not liable if, as you suggest, these young men took the cart without leave ; he is liable if they were going extra liam in going from Burton Crescent Mews to Finchley ; but if they chose to go of their own accord to see a friend, when they were not on their master's business, he is not liable. His Lordship afterwards, in summing up, said : This is an action to recover damages for an injury sustained by the plaintiff", in con- sequence of the negligence of the defendant's servant. There is no doubt that the plaintiff has suffered the injury, and there is no doubt that the driver of the cart was guilty of negligence, and there is no :>15,RS0NAL i': ^on W3Sf 263 irt on hi^ 3u think the sei 'it the defenda^x. , :hink that the' yo ;ij lusly, and was not a the defendant will not t "son a Ihe ser-' s srohi<2r ■ m anvmg on nis : but if he wa- -'-'^. his master's .,es, the mastc - vv. therefore the ; ■ e plaintiff — damage^... " in the ■ .y, again.- master's busin: "3- on a frolic oi ... the master will "" of any oflFe:' iiould be rea.- CROFT V. ALISON. ', iiiaL tii-j plainttiis were the o>. chariot, then 'awfrJly being" an-: ighway, and th;: endant Md horse- '■>'*•• , .^ and •.■• ■n drivir. 'Jwg the -'': " ' carelessi^ inferior lased ril, 18^33, the plain and common higi ■ ot a cart and horse, which V irection of a servant of his, ^^•iu. vVrio diivix :. ^.aid highway, and that the de- t:-:'l;i."t bv bi> -sly, negligently and improperly iid horse and cart, that, by the or conduct of the defendant by !iis SO' driven against the plaintiff and down and the bone of one of ! in consequence, and prevented ed to incur a great expense ■' z. nrd a further great ex- !0 superintend and Plea — not guilty. it appeared that he i' I iw s\.\:-, 1 own by a cart and >n from Shv which were sworn by a pe; was the sei'vant of orvants 1 ihe cart with him. i fibula. : \v'!i;e-->^s wove called, who swoi . 'he time sworn tf^ 1:^. iMv • ■->.■. MuL>l. tlia! ' ■ rid there is no LiOL. ihat the d :ce, and there is 1. PERSONAL INJURY. 263 doubt also that the master, if that person was driving the cart on his master's business is responsible. If the servants, being on their master's business took a detour to call upon a friend, the master will be responsible. If you think the servants lent the cart to a person who was driving without the defendant's knowledge, he will not be responsible. Or, if you think that the young man who was driving took the cart surreptitiously, and was not at the time employed on his master's business, the defendant will not be liable. The master is only liable when the servant is acting in the course of his employ- ment. If he was going out of his way, against his master's implied commands, when driving on his master's business, he will make his master liable ; but if he was going on a frolic of his own, without being at all on his master's business, the master will not be liable. As to the damages, the master is not guilty of any offense, he is only responsible in law, therefore the amount should be reasonable. Verdict for the plaintiff — damages, 30/.^ CROFT V. ALISON. 1821. Court of King's Bench. 4 B. & Aid. 590. The declaration stated, that the plaintiffs were the owners and proprietors of a certain chariot, then lawfully being and standing in a certain public highway, and that the defendant was possessed of a certain coach and horses, under the care and government of a servant, who was then driving the same along the highway, and that the defendant, by his said servant, so carelessly and improperly ^ See article by John H. Wigmore, "Responsibility for Tortious Acts : Its History." Part II, 7 Harv. Law Rev. 383. "In no case does this phrase (respondeat superior) point to an absolute lia- bility of the superior for acts done by the inferior or even for those done in the course of his employment. In all cases it points to a merely subsidiary liability of the superior, which can only be enforced against him when it is proved or patent that the inferior cannot pay for his own misdeed. This indi- cates, as we believe, what has first and last been one of the main causes of 'employer's liability.' " 2 Pollock and Maitland, Hist. Eng. Law 531. _ "The law has said that whenever an injtiry has been occasioned by the neg- ligent conduct of a person in the service of another, the master is answerable for it; and this is for the purpose of inducing those who employ others to take care that thev emplov proper persons." Erskine, J., to jurj' in Sleath v. Wilson, 9 C. & P. 607, 610. "This rule of liability is not based upon any presumed authority in the agent to do the acts, biit upon the ground of public policy, and that it is more reasonable, where one of two innocent parties must suffer from the wrongful act of a third person, that the principal, who has placed the agent in the posi- tion of trust and confidence, should suffer rather than a stranger." Mason, J., in Lee v. Village of Sandy Hill, 40 N. Y. 442, 448. 264 LIABILITY TO THIRD PERSONS. drove, governed, and directed his said coach and horses that, by the carelessness, negligence, and improper conduct of the defendant, by his servant, one of the fore-wheels of the coach struck, and damaged the said chariot. Plea, general issue. At the trial, it appeared that the plaintiffs, who were livery-stable keepers, had hired the chariot for the day of Messrs. Lambert & Bryant, who were coachmakers. The plaintiff furnished the horses, and appointed the coachman, and then let it out to an individual for the day. It was stated in evidence, that the cause of the accident arose from the defendant's coachman striking the plaintiff's horses with his whip, in consequence of which they moved forw^ard, and the chariot was overturned. At the time when the horses were struck, the two carriages were entangled. The lord chief justice, at the trial, left it to the jury to determine, whether the carriages had become entangled from the moving of the horses of the plaintiff's which, previously to the accident, were stand- ing still and without a driver, and he directed them to find for the defendant, in case they thought so, and that the whipping by the de- fendant's coachman was for the purpose of extricating himself from that situation. But he directed them to find for the plaintiffs, in case they were of opinion, that the entangling arose originally from the fault of the defendant's coachman. The jury found a verdict for the plaintiffs. And now Scarlett moved for a new trial. First, the plaintiff's cannot prop- erly be called the owners and proprietors of the chariot, having only hired it of the real proprietors for one day ; and if any but the' real proprietors can be so called, the individual actually using the car- riage at the time might be much more properly called so than the present plaintiffs. Secondly, the injury arose from the act of the defendant's coachman, in whipping the plaintiff's horses ; now that was a wanton act on his part, for which he himself, and not his master, would be liable ; and the declaration which charges, that, by the carelessness, negligence, and improper conduct of the defend- ant's servant, the accident happened, is not supported by the proof of a wanton act. Per Curiam. — As to the first point, it has never been supposed that a mere passenger in a carriage can be considered as the owner and proprietor, so as to be entitled to bring this action. The plaintiffs, however, are something more, for they have not only hired the chariot for the day, but have appointed the coachman and fur- nished the horses. They may, therefore, be considered, for the purposes of this declaration, as the owners and proprietors of the chariot. As to the second point, the distinction is this ; If a serv- ant driving a carriage, in order to effect some purpose of his own, wantonly strike the horses of another person, and produce the accident, the master will not be liable. But if, in order to perform his master's orders he strikes out injudiciously, and in order to ex- Lii.; om a Hiffin."' b^ tiegjii ■ careless to the ■•,1 J !E ho: Supreme Cour 1. Dowell, - )ne Lour dant, enteri; h. ... , .. ., ihe 20th day c. , . T.he com; octed by the court af . lie. cc'urt and a jury, with noi V on such appeal the order g J. — If the plaintiff prevails in this action it must be upon ! invocation of the principle of respondeat superior, be- lividual who perpetrated the cruel wr-"" ■ ^tv^ -n him is claim of the plaintiff being that he ^^ rvant ot ' ■■'-- *'- - "--- - --ible for iiis V :,,.--^- ' another he dof tiiat rior, whi . „nd >erv . hose re] 's no ap: to ascer ii> the S' '. tiiC ir 1^ wa^ ; 264 dru - that, bv the ■ic Lridi, 11 appeared Li , rs, had hired the chari . Bryant, who were coachmakers. "■■' ^' 'tinted the coachman, and It was stated in evidence. i ui utd. At ih'. - were entangled. ! !io left it to the jury to determine, 111 .nrL',' >'-om the moving of the iccident, were stand- •jxciru tlieni to find for the thnt the whippine t) 737) 1^ I was a tne pi: 1 COr^',.: : : horse and . f the driver, a.ui a ouit -.1. lil'UU. who St. I or couiu «-:\V..Li! .vILUI the dock .i the defenda • the boat Highland, :k. Ih ers adve? ' 1 :i>^ , control ' ue adventure. Ti iv.turn of the boat tu When the boat was . .--uriea. . The .e rail and was The boat was stopped uiniiiT \\a-= ivtv- i '■at the plaiaLiti lo do and that a presumption of ^- 's in use for the in this case bv '^0 any uiit. .'se it charter mid not escape iiabili ■;,-;i .-n'l ■.( i1 *■}-' -■ it,?M the boat. 1 boat and all h n her earnings during ; .s I'irrcf 'r;- on actual l ihe {X)ss< ■1 ner. Wli ■; adoption a > 107 N. Y. 21 i '.Tew ai PERSONAL INJURY. 267 the same time, the defendant is reheved from the position if our con- clusion is correct. In the case of Blake v. Ferris (5 N. Y. 48) the doctrine of respond- eat superior received the fullest exposition, and the teaching of the case is adverse to the plaintiff here. It was there decided that the immediate employer of the servant, through whose negligence an injurs- occurred, was personally responsible therefor, and that rule is in accordance with reason and justice when applied to this case. The defendant surrendered the boat and crew to Mink and Burnett, and during the continuance of the charter party they exercised abso- lute authority over both ; so far as the crew was concerned, they were subject to the orders of Mink and Burnett. It was, therefore, their duty to prevent the molestation of the passengers by the crew, and there was none other who could. The defendant had no super- intendent or other person on board to exercise any supervision or care, and as it was destitute of power it should be held free from re- sponsibility. The appellant has referred to an English case where the lessee of a ferry hired from the defendants a boat and crew for one day to carry passengers across. He received the fares and paid the defendant for the boat. They sent the crew and paid them. The plaintiff, who was a passenger, went on board for the purpose of crossing, and was injured while there by the breaking of some of the tackle by the negligence of the crew, and the court permitted a re- covery. It appeared in that case, however, that the crew was con- trolled by the defendants, and beside that, the cause of the injury was the breaking of the tackle belonging to the boat. The case is not sufficiently analogous to this to render it authoritative. There are several English cases much like this. In the case of Milligan v. Wedge (12 Ad. & El. 737) the defendant, who was a butcher, em- ployed a drover to drive an ox to his slaughter house ; the drover employed a boy to drive the ox, and he permitted it to run into the show-room of the plaintiff, where he caused damage. The de- fendant had the verdict, which was sustained on appeal. In Quar- man v. Burnett (6 M. & W. 497) the defendants owned a carriage and hired a pair of horses and driver to draw it for a short time, during which the horse and chaise of the plaintiff was injured by the carelessness of the driver, and a suit was brought against the defendants. The plaintiff obtained the verdict, and the judge reserved the right to move for a non-suit, and upon that motion the decision was that the defendants were not liable, and a verdict was entered in their favor. The opinion in that case contains the following language : "That person is undoubtedly liable who stood in the relation of mas- ter to the wrongdoer, he who had selected him as his servant from the knowledge of or belief in his skill and care, and who could re- move him for misconduct, and whose orders he was bound to receive 268 LIABILITY TO THIRD PERSONS. and obey. * * * 'Q^i the liability by virtue of the principle of relation of master and servant must cease where the relation itself ceases to exist, and no other person than the master of such servant can be liable on the simple ground that the servant is the servant of another, and his act the act of another." In the cases of Robinson v. Corbett (9 M. & W. 709) ; Allen v. Haywood (7 Ad. & El. 960), the facts were similar to the others, and the decisions were to the same effect. In the case of Langley V. Pointer (6 M. & W. 697), which was similar, the judges were divided upon the question. The only English case which supports the contention of the plain- tiff is Bush V. Steinman (i Bos. & Pul. 404), but that case has been overruled and repudiated both in England and this country and is no longer entitled to any respect. (Blake v. Ferris, 5 N. Y. 62; Hill- yard V. Richardson, 3 Gray 349.) This last case is very instructive^ and the facts were these : The defendant, who was the owner of a building by the road- side, entered into a written contract with one Shaw to alter the build- ing into a dwelling house, and to furnish all materials necessary therefor. Shaw procured some boards and sent them by a teamster, who acted under his direction, to the place for use there, and the teamster piled them up by the side of the road. In a short time thereafter the plaintiff was riding along the road, when his horse became frightened by the boards and bolted from his course, and the plaintiff was thrown from his wagon and injured. The plain- tiff obtained a verdict which was set aside in an elaborate opinion which held the defendant free from liability, and concluded with these words : "Viewing this as a question not of authority, but to be determined by the application to these facts of settled principles of law, upon what principle can the defendant be held responsible for this injury? He did not himself do the act which caused the injury to the plain- tiff ; it was not done by one acting by his command or request ; it was not done by one whom he had the right to command, over whose conduct he had the efificient control, whose operations he might di- rect, whose negligence he might restrain. "It was not an act done for the benefit of the defendant and from the doing of which an implied obligation for compensation would arise. It was not an act done in the occupation of land by the de- fendant or upon land to which, upon the facts, he had any title." These words apply with equal force to this case and are decisive of this appeal. The judgment should be affirmed with costs. Pratt, J., concurred ; Brown, P. J., not sitting. Judgment affinned, with costs.^ ^ Compare Donovan v. Construction Syndicate, L. R. i Q. B. D. 629. See PERSONAL INJURY. 200 1872. Supp'-ME C'^vn Ri. 50 Appeal from S" J. WiCKHAM, 1 The defense S'.'. m.- is v^:\i r^.'^ sMr-iinipj"! v."-:is - oitr?e of hi< em. i^Ovment, and I'hat the m?>^ler y or the course oi the eir; :- .. expressly forbidden; alsc ..,,. i-he principle of law holding the master i 1 it, -trvant or a^r-'- ■' '? on the grc ' '' d not do an act b.i, cause it to : i*s to -■ rd per^Oiis. liv.. J done . rvant while not . nor does it reach wrongs caused !>> - - - of an act not directed by the master, scope of the agency or the course of the employ- v-M. yn .. , iiit. (i Am. Lead. Cas. 619.) A master is not liable for any act or omission of his servants which ith the business in \\ ' ' ' " " im, and does • cot^rse of '■^'=■.1'" on; id the sc*"-'"*? ..s ally or: -. ■• ^ ^ - - -ol.6^- , Bank, 17 Mo. 510; Douglas v. rvant ca' ' - ■" -'uthorized -•- the m.'. ster, in ■ ivaiii, ii . Lut was , ^ter; and if wrong be done : • master, and not for the 1 lis business, the master i:, 287; Howe V, Newmark, 4.) It w-"?? the dntv of th*' act cor' the serv Wend. 343, 345 ; 1 uiler -. ... -ui- ->-:.,.. :.. TJ-1J ., . 1 I 268 aiKl ■ the principle of i. '^msU • ,.;vic the relation it>= '^ exi>it, ;i • le master of such ser*: is the servant of in the cast .bett (^9 M. & W. 709) ; Allen v. ilayvvoo'l '- . facts were similar to the oth'^'-v and the ,e effect. In the case of Lar> V. P' '- iijch was similar, the judges wei'. divi A Is the contention of the p!- ' tiff i. 404), but that case has f ovt > .1:- :■; I i this country and i^ ^■■•''r ''l:xwc V. I'UTis, 5 N. Y. 62; U;.. This last case is very instructive. ailding by the road Lracl vv; aw to alter the bi'- '^ nd to t .1 materials neces> 1 sent them by a teani , >- -. for use there, and . - ne side < id. In a short tim^ "iding aluL- u,c road, when his horse i.rds and bolted from his course, and ■ n his wagon and injured. The plr " was ^et aside in an elaborate opir- . ee from liability, and concluded with not of authority, but to be deternr' -■ ^- cts of settled principles of law, i: what pri I ;nt be held resuonsible for this inj ; He did no: ■ ,' : ■ :.,^ injury to the pi. tiff; it wasp "d or request ; it over w; he might - "-- .-- ... w. w.v v.i-fendant and 1 •.;■ of ^Nh jtion for compensation wf i<"«n of land by the iie had any title." .do app. ills case and are decisive of : ;! The juugn iih costs. 1 Pratt, J., c. ,av-;-fi; Judgment afh-. R. I Q. B. D. 629. See PERSONAL INJURY. 269 GARRETZEN v. DUENCKEL. 1872. Supreme Court of Missouri. 50 Mo. 104. Appeal from St. Louis Circuit Court, J. WiCKHAM, for appellant. The defense set up is that the salesman was not acting in the course of his employment, and that the master is not liable for damages resulting from an injury caused by the carelessness or negligence of the servant, in the performance of an act not within the scope of the agency or the course of the employment of the serv- ant, and which was expressly forbidden ; also that there was no negligence. The principle of law holding the master liable for the acts of his servant or agent, rests on the ground that the master should not do an act himself, or cause it to be done, with such negligence or want of skill as to injure third persons. This princi- ple does not reach a wrong done by the servant while not engaged in the business of his master ; nor does it reach wrongs caused by negligence in the performance of an act not directed by the master, or not within the scope of the agency or the course of the employ- ment of the servant, (i Am. Lead. Cas. 619.) A master is not liable for any act or omission of his servants which is not connected with the business in which they serve him, and does not happen in the course of their employment. Beyond the scope of his authority the servant is as much a stranger as any other per- son. (Schouler Dom. Rel. 638; Sherman & R. Negl. 64, 71 ; id. yy, § 63; Foster v. Essex Bank, 17 Mo. 510; Douglas v. Stephens, 18 Mo. 336, 367.) No servant can, by an unauthorized act of his, raise a presumption against the master ; the master, in such case, is no more liable to such a presumption than a stranger. The law will not infer authority to commit a trespass ; and in order to hold the master liable for a trespass committed by a servant, it is necessary to show that the act was done while the servant was acting under the au- thority of the master ; and if wrong be done by a servant without the authority of his master, and not for the purpose of executing his orders and doing his business, the master is not liable. (Church V. Mansfield, 20 Conn. 287 ; Howe v. Newmark, 12 Allen, 52 ; Mali V. Lord, 39 N. Y. 384.) It was the duty of the plaintiff to show affirmatively that the act complained of was within the scope or course of the duty of the servant. Wilson v. Peverly, 2 N. H. 548 ; Wright V. Wilcox, 19 Wend. 343, 345 ; Tuller v. Voght, 13 111. 285 ; McManus v. Crickett, i East, 67.) The only authority presumed by law is to do all lawful acts be- longing to his employment, and the specific instructions of the mas- full discussion of the cases on this point in Baldwin v. Abraham, 57 App. Div. (N. Y.) 67. 270 LIABILITY TO THIRD PERSONS. ter determine the limits of the employment and scope of the duty of the servant ; no master is chargeable with the acts of his servant but w^hen they are done in the execution of the authority given him. When the servant oversteps his authority he becomes as a stranger, and the act not having been done in the service of the master, or w^ithin the limits of his authority, but contrary to his express and specific instructions, it was wilful, and the master is not liable, (Oxford V. Peters, 28 111. 435; Harris v. Nicholas, 5 Mumf. 489; Wright V. Wilcox, 19 Wend. 345 ; Armstrong v. Cooley, 5 Gill, 512; Joel V. Armstrong, 25 Eng. Com. Law, 512; McKeon v. Citizens' Railway Co., 42 Mo. 87-8.) The cases of Joel v. Morison, 6 Carr. & P. 510, and Sleath v. Wilson, 9 Carr. & P. 607, cited by respondent in support of the proposition that it is immaterial whether the act complained of was done in disregard of the orders of the master, have been overruled by late authorities. (Mitchell v. Crassweller, 13 C. B. 237; 16 Eng. L. and Eq. 448, 451; Story v. Ashton, Law R. 4 Q. B. 476, 479; Bard v. Yohn, 26 Penn. St. 482.) Jecko & HosPES^ for respondent. The master is responsible for the acts of his servant, done in the general scope of his employment and in pursuit of his master's busi- ness, and it is immaterial whether the particular act causing the in- jury was done in disregard of the general orders or specific com- mands of the master. (Joel v. Morrison, 6 Carr. & P. 510; Cleath V. Wilson, 9 Carr. & P. 607 ; Limpus v. London General Omnibus Co., I Hurlst. & Col. 526; Croft v. Alison, 4 B. & Aid., 6 Eng. Com, L. R. ; Seymour v. Greenwold, 7 Hurl. & Nev. 355.) The rule of respondeat superior, or that the master shall be civilly liable for the tortious acts of his servant, is of universal application, whether the act be one of omission or commission, whether negligent, fraudu- lent or deceitful. If it be done in the course of his employment the master is liable ; and if it makes no difference that the master did not authorize or even know of the servant's act or neglect, or even if he disapproved or forbade it, he is equally liable if the act be done in the course of the servant's employment. (Philadelphia & R. R. R, Co. V. Derby, 14 How. 486 ; Southwick v. Estes, 7 Carl. 385 ; Lut- trell V. Hazen, 3 Snead. 20 ; Pennsylvania R. R. Co, v. Vandivier, 42 Penn. St. 365 ; Oxford v. Peters, 28 111. 434 ; Howe v. Newmark, 12 Allen, Mass., 52-3.) Wagner^ Judge, delivered the opinion of the court. This was an action against the defendant for damages caused by a wound inflicted on the plaintiff by the firing of a gun by a sales- man who was in the employ of the defendant. The record shows that at the time of the happening of the injviry the defendant was the keeper of a gun and ammunition store ; that one Brewer was his servant, employed by him in selling arms and ammunition ; and that, upon the occasion of the injury, the defendant being absent, Brewer PEBSONAL INJURY. J/) le of Henry's patent to a cusi • o requested m order that he • \ ' and re- ■ less it was done. stating mijst his orders to 1 ^ -■ : making the sale he \ m, and in doing so it was ,. was sitting at a window in street. The defense was that, ■^nn was against the orders and n; er was acting outside of the scope iant was not bound. This defense vv. .1 a verdict for the '^In'r^ifF. and the 1. -ally recognized r-„. . j. principal is ^■■:t, fraud, or other wrcmgtui act of his :u ;•, employment, though the principal did not auiiv but the liability is only for acts committed in til- 's employment. A master is not responsible tor . 1 of his servant which is not connected with the bus: - ihey serve him, though in general he is responsible for ' which they execute his orders, and for their negli- i.ing means by which the orders are to be carried out. ■g whether a particular act is done in the course of a ioyment, it is proper first to inquire whether the serv- time engaged in se; ' ' master. If the act w.v- servant was at liber ^.is service, and pursn' . \ ely, there can ihcii be no questi ■ ibie, even thr>f-ii t'lc injuries cr e been comniitt' 'ie facili: elations to his i. _ ^...arman iX It may not, perhaps, be very easy - "n this subject, but we think th iced from them will be found cited and r- ■ or the a- , io6. But i -Jon re- i; trespass and trespass c ^Id That case only decided .mis 1st the master for the wilful ;s serv- i: authorized or conser* ' * r either ication, from the na; - of the '^'ing the judgment, says; "Who nt which he is employed, and, ,v- ulers. pursues that which h' '.-o . longer ;n-t-: in pursuance of the auth- ' the doctrine of Lord Holt his m h an act." But he adds that "t: ici (.nji ■> 1 111- lie li:.. .uC (iliCV Ol the servant; no )• - servant but • litn they are < ' i:;:iven him. '. icii the serv?^" > stranger, and the act - laster, or within the 1' ',aess and specific inst not liable. (Oxford v Muraf. 489; Wright . 5 Gill, 512; Joel ■■ )i \' Citizens' Rai^ 'y u. i'. 510, and Sleath v. W-' - otident in support of the \>:-r the act complained of was c c master, have been overruled hv weller, 13 C. B. 237; 16 Enj;. r' r ^,.. T.;> . r\ m a-^a ,-A servant, done in th^' 'nd in parjuit of his master's busi the ra'rticitlar act causing the in i 'iers or specific co-: . ..irr. & P. 510; Clc ' , i^ondon General Omni : .viison, 4 B. & Aid., 6 Eng". O. r Hurl. & Nev. 355.) The r e master sliall be civilly liable of universal application, who? I dssion, whether negligent, frar> the course of his employment diflference that the master did "it's act or neglect, or even it iv liable if the act be don< I...- U. (Philadelphia & R. R <^^ k V. Estes, 7 Carl. 385; '■ iiiaR. R. Co. V. Vandi .\}1' 434; Howe V. Nevvn> . of the coujc. adant for damages causer ...■ (ii/ni?: of a gun by • : ■;■ i.i:v.. The recov. tliai at I -injury the d'. ' the keep'- ; that one Br. servant, emy .nd ammunitv Tliii"vr; {"ht^ nc. i;n:i !:''iiU'>- :)!• PERSONAL INJURY. 27I was showing a rifle of Henry's patent to a customer, who requested to have it loaded, in order that he might see how it worked, and re- fused to buy it unless it was done. Brewer at first refused, stating that it was against his orders to load firearms in the store, but for the purpose of making the sale he was finally persuaded and induced to load the gun, and in doing so it was discharged and shot the plaintiff, who was sitting at a window in a house on the opposite side of the street. The defense was that, inasmuch as the act of loading the gun was against the orders and instructions of the de- fendant, Brewer was acting outside of the scope of his employment and the defendant was not bound. This defense was overruled, and the jury found a verdict for the plaintiff, and the case is brought here by appeal. The universally recognized rule is that a principal is civilly liable for the neglect, fraud, or other wrongful act of his agent in the course of his employment, though the principal did not authorize the specific act ; but the liability is only for acts committed in the course of the agent's employment. A master is not responsible for any act or omission of his servant wdiich is not connected with the busi- ness in which they serve him, though in general he is responsible for the manner in which they execute his orders, and for their negli- gence in selecting means by which the orders are to be carried out. In determining whether a particular act is done in the course of a servant's employment, it is proper first to inquire whether the serv- ant was at the time engaged in serving his master. If the act was done while the servant was at liberty from his service, and pursuing his own ends exclusively, there can then be no question that the master is not responsible, even though the injuries complained of could not have been committed without the facilities afforded by the servant's relations to his master. (Shearman & R. Negl., § 63 and notes.) It may not, perhaps, be very easy to reconcile the numerous cases on this subject, but we think that the correct rule extracted and deduced from them will be found as above laid down. The leading case cited and relied on for the appellant is McManus V. Crickett, i East, 106. But that decision rested entirely upon the distinction between trespass and trespass on the case under the old forms of pleading. That case only decided that trespass z'i et annis would not lie against the master for the wilful trespass of his serv- ant, which was not authorized or consented to by the master either directly or by implication, from the nature or subject-matter of the employment. Lord Kenyon, in giving the judgment, says: "When a servant quits sight of the object for which he is employed, and, without hav- ing in view his master's orders, pursues that which his own malice suggests, he no longer acts in pursuance of the authority given him, and according to the doctrine of Lord Holt his master will not be answerable for such an act." But he adds that "this doctrine does 2/2 LIABILITY TO THIRD PERSONS. not at all militate with the case in which a master has been holden liable for the mischiefs arising from the negligence or unskilfulness of his servant, who had no purpose but the execution of his mas- ter's orders," but that the form of such action must be case and not trespass. The opinion contains nothing which bears upon this intermediate case of a servant who does not "quit sight of the object for which he is employed" but for the purpose of executing his master's or- ders, and in the course of his employment, does an act injurious to another, or in disregard of his rights. A few cases may be cited as illustrative of the principle, to show the turning point of responsibility on the part of the master. In the case of McClenaghan v. Brock, 5 Rich. Law, 17, plaintiff's slave was on board a steamboat as a passenger, and the second engi- neer of the boat, by negligently discharging a gun, wounded him while he was upon a lighter alongside of the steamboat, and it was held that the captain was not responsible. The engineer, it will be seen, was not acting, in the discharge of the gun, in any duty con- nected with his employment. He was doing something on his own account, independent of his business with the boat. In the case of Mali v. Lord, 39 N. Y. 381, the plaintiff was in defendant's store purchasing goods, the defendant was absent at the time, and the superintendent and clerks suspecting the plaintiff of having stolen goods, called in a policeman and had her searched ; no goods were found upon her. She then brought her action for dam- ages, and the court decided that as the act was done without the knowledge or the express or impHed authority of the proprietor or owner, the master was not liable ; that the servant was not impliedly authorized by his master to do that which the master himself, be- ing present, would not be authorized to do. The selling of goods, which was the only power conferred upon the servants, had nothing to do with the matter of making arrests for supposed offenses. In McKenzie v. McLeod, 10 Bing. 385, the servant was employed to light fires in the house, and she lighted furze and straw with a view to clean a chimney that smoked, and in doing so the house caught fire and was burned up. The servant was cautioned against the danger of such a proceeding, and it was shown that it was no part of her duty, but that carpenters and masons were employed to cleanse the chimney, and that they had recently performed that work in the presence of the servant. Under these circumstances it was left to the jury to say whether the servant was acting within the scope of her duty; and the jury having found for the defendant, the court refused to grant a new trial. This case is criticized by the authors of the treatise on negligence, and they declare that, although the principle may be sound, it may well be doubted whether the jury did not err in finding that the act was not within the scope of the servant's general or ostensible authority. T in the '.!j:^truct' r. T-. in to have .f the ided It, yet he is re for consequent i the negligence and >_,,■ . . sness of the ser- 'siness of his employer, another receives an in; 'limself be lia' ' action <' ' ^ for the <"'"' il dania 3.T that the *)"•" an iniiui m lurttierance to another, t effect is the cent case of Minter o. 503, where wc iickl chat if a ? 1 the his master's order, and by his m\ njiiry arty, the master will be responsible, although the serv- s not necessary for the proper 'v-t'-rmance of ' ■'^ ''''v-^- V, or w^as even contrary to hi order. .-. Alison, 4 B. 8 distinction is t purpose !(1 pror'-- n order K), the vOiirt of Kings • I servant drivinpf a rnrri': carele^ -fi s iic ,. hi,-.-., Luit, an - .^.. Aid a v.- . Greenwoo ; ^aron r tiuit 1 militate w lial.lo for the miscl; ' servant, wh-, • ders," but ' tiers, ana 'in; .1 ni»f r. ..- !!een holdeii ' :e or unskilfulness \.;vccution of his mas- lion must be case and •?rs iioon this intermediate which ■,; '-'s or- nt, does an act mjurious to ve of the principle, to show part of the master, . 5 Rich. Law, 17, plaintiff's ' '' ■ i engi- . :d him at, and it was ^ .. ,.aeer, it will be gun, in any duty con- M.ig something on his own ' the boat. 'iff was in •ent at the ■ ^tiff of led; no She then brought her action for dam- ' -'^ ':-: the act was done without the 1 authority of the proprietor <:' . . mat Vr t; was not implied! th^t wl . /laster himself, K - •'I to do, J< : upon the se' • ests for supposed offenses, ■^S, the servant was employe i ed furze and straw witli ;; oNcv,. and, in doing so the housr The servant was cautioned against ' wn that it was no ^^•ere employed t<' ' that wcr i ices it v, servant was acting within t: ' found for the defendant, • lis case is criticized by » itliin the scope ol PERSONAL INJURY. 273 Douglas V. Stephens, 18 Mo. 362, was an action for damages to the goods of the plaintiff in the cellar of his store, alleged to have been caused by the obstructions of a sewer b}^ the servants of the defendants ; and Scott, J., in delivering the opinion of the court, said : "Although a master is not liable in trespass as principal for the un- lawful and directly injurious act of his servant unless he has com- manded it, yet he is responsible for consequential damages where by the negligence and carelessness of the servant in doing the business of his employer, another receives an injury for which the servant would himself be liable in an action of trespass. To make the master liable for the consequential damages resulting from the trespass of the servant, it must appear that the servant was in the course of his employment, and that by an injudicious or negligent or unskilful act done in furtherance of his master's business the in- jury resulted to the plaintiff. But if the servant, wilfully and to effect some design of his ov/n, does an injury to another, the master will not be liable." To the same effect is the more recent case of Minter v. Pacific R. R., 41 Mo. 503, where we held that if a servant is acting in the execution of his master's order, and by his negligence causes injury to a third party, the master will be responsible, although the serv- ant's act was not necessary for the proper performance of his duty to his master, or was even contrary to his master's order. In Croft V. Alison, 4 B. & Aid. 590, the court of King's Bench say that "the distinction is this : If a servant driving a carriage in order to effect some purpose of his own, wantonly strikes the horses of another person and produces the accident, the master will not be liable. But if, in order to perform his master's orders, he strikes, but injudiciously and in order to extricate himself from a difficulty, that will be negligent and careless conduct for which the master will be liable, being an act done in pursuance of the master's employ- ment." The case showed that the defendant's servant had wilfully struck the plaintiff's horses while driving his master's carriage, in order to extricate himself from an entanglement of the carriages, occasioned by his own fault, and thereby had caused an injury to the plaintift''s carriage, and a verdict for the plaintiff was supported. In Seymour v. Greenwood, 6 Hurl. ,& Norm. 359, Chief Baron Pollock asks the question, "Suppose a servant driving along a road, in order to avoid a danger, intentionally drove against the carriage of another, would not the master be responsible?" And in Limpus V. London General Omnibus Company, i Plurlst. & Col. 526, it was decided in the exchequer chamber that the master is responsible if the servant is in the course of doing the master's work and does the act to accomplish it. In a recent well-considered case in Massachusetts, after a review of 18 — Reinhard Cases. 274 LIAniLITY TO THIRD PERSONS. the authorities, the court, speaking through Hoar, J., lays down the doctrine as follows : "In an action of tort in the nature of an action on the case, the master is not responsible if the wrong done by the serv- ant is done without his authority, and not for the purpose of execut- ing his orders or doing his work. So that if the servant, wholly for a purpose of his own, disregarding the objects for which he is em- ployed, and not intending by his act to execute it, does an injury to another not within the scope of his employment, the master is not liable. But if the act be done in the execution of the authority given him by his master, and for the purpose of performing what the mas- ter has directed, the master will be responsible, whether the wrong done be occasioned by negligence or by a wanton or reckless pur- pose to accomplish the master's business in an unlawful manner." (Howe V. Newmark, 12 Allen 49.) This exposition of the law fully coincides with the previous rul- ings of this court. The true ground upon which a master avoids responsibility for most of the wilful acts of his servants, when im- authorized by him, is that they are not done in the course of the servant's employment. When they are so done, the master is liable for them. Tested by those principles, the conclusion in this case is inevitable. Brewer, the servant, was unquestionably aiming to exe- cute the order of his principal or master. He was acting within the scope of this authority and engaged in furtherance of his master's business. There is no pretense that he was endeavoring to do any- thing for himself. He was acting in pursuance of authority, and trying to sell a gun, to make a bargain for his master, and in his eagerness to subserve his master's interests he acted injudiciously and negligently. It makes no difference that he disobeyed instruc- tions. Innocent third parties who are injured in consequence of his acts cannot be affected thereby. The instructions of the court fairly submitted the question of negligence to the jury, and are not ob- noxious to any reasonable objection. The court committed no error in ruling out the evidence offered by the defendant for the purpose of showing that the act of loading or charging guns in a store is no part of "the business of selling the same. If we admit that the serv- ant did an unauthorized act, the evident truth still remains that it was done wholly in carrying out and executing his master's business, and in such a case the master will be held liable. When the servant acts in the course of his employment, although outside of his instruc- tions, the master will be held responsible for his acts. I see no error in the record, and with the concurrence of the other judges the judginent will be affirmed.^ ^ "The general rule may now be said to be that a master is responsible for the torts of his servant, done with a view to a furtherance of the master's business, whether the same be done negligenth' or wilfully, but within the scope of his agency. The fact that the servant, in committing the tort, may COIJRI OF ApPE- rom judgment of the general term of the A New Yorl:. •- " ■ ' •■""n an or:'. • ■ ■ affirmed a ; avor of - • • ■ . 526.) damage . ^:d oil c; ^1: -^ - -. „ L iree time: last tri;i!, iMe jury rendered a verdict for the plains T- ■ 'c-nce of the plaintiff showed that on jcu-: V ' ^ a boy eight years old. he jumped on the ? lird or fourth car from the engine, of a tr- ; ,: as proceeding up Eleventh avenue at a s, hour. After he had gone a few blocks he was k (•; by a conductor or brakeman employed on the train, J- his leg under the hind wheel of the car, it was crushed. 1 by one Vogel, who gave important testimony for the '" was taken to a police station and then to the hospital , as amputated. There was a sharp conflict of testi 1 points, pani'^nhrly in regard to the fact of the mony o; ig to show that the v I off the • ^ other boys vrho '••- The most im; taken 1 '•'^ -allowance' b\ , . of a que- a by plainti- f Cross, tht ch the accid> and an " -if he was ; a of To •ndant, to whicii he auswereo ' the records of the police st;. h the plaintiff was taken soor T. r- ,.n,.ii-int. The author;.. n has not been expt % !.»)•, ( Isaacs V. The Third Ave. :\ V. Freeman, .^3 id ^66: Hi.tghes v >.' 222 ; W id cxec'ui ^ the empioymei r. (8 T. cs V. Third Ave ... ...■ '^' • ■■ ;. R. R. Co., 70 'ohen v mention of the pLiiuuu -.■ : ^' '" and the court should n % or even disobeye 1 ■,, '-;,.i;ii. ,- \u as folloA ployed) and another not liable. But him by I: ' ter has doi^ i;'.-'.-!i, J,, i,i_v ^ u (.."■"> 1 J im / the nature of an action or ' • ■• by the serv- se of exec 11 1- il Liic sei vanl, wholly fc>- jects for which he is eii^ eciite it, does an injti . .....ioyment, th€ master io ^j ' cecution of the authority givei - • '/; f' ■ ■■ J':'- what the m- . . i.er the \\ r ov by a wautou or reckless pur i-u'^inc'^s in an unlawful manner. acts can submit; ji'Xxions 11' . of , parCui ihe nat did nn was do^' and in acts in , A'ith the previous und upon which a master a\ "■ ' - '^is servants, when m in the course of th; 'ic master is >' ' ';)n in this en - ly aiming to exc acting within th'- -r- of his master'^ .- --.,, ciiu^avoring to do any 1 pursuance of authority, an. for his master, and in hi . ts be acted injudicious!; '>3yed instrut . _. 1 cquence of hi instructions of the court fair! ■ ... c to the jury, and are not ob n. The court committed no errc ' . t for the pu' 3 in a store < : ' the seiv ■■ .i :■ .r'.nis that r xecuting his master's business ' niable. W^hen the servani Mgh outside of his instruc- ) '.- tor his acts. 1) the concurrence of the other i:c juu th^: ill'. '.viMi;:: ctx,: the tort, may ■ PERSONAL INJURY. 275 HOFFMAN V. NEW YORK, ETC., RAILROAD CO. 1881. Court of Appeals of New York. 87 N. Y. 25. Appeal from judgment of the general term of the superior court of the city of New York, entered upon an order made December 6, 1880, which affirmed a judgment in favor of plaintiff entered upon a verdict. (Reported below 14 J. & S. 526.) This action was brought to recover damages for personal injuries suffered by the plaintiff frbm being kicked off defendants' cars by an employe of defendant. It has been three times tried, and on the last trial, the jury rendered a verdict for the plaintiff" for $5,000. The evidence of the plaintiff showed that on January 21, 1869, when he was a boy eight years old, he jumped on the front step of a car, the third or fourth car from the engine, of a train of defend- ants' that was proceeding up Eleventh avenue at a speed of about ten miles an hour. After he had gone a few blocks he was kicked off the step by a conductor or brakeman employed on the train, and falling with his leg under the hind wheel of the car, it was crushed. Accompanied by one Vogel, who gave important testimony for the plaintiff, he was taken to a police station and then to the hospital, where his leg was amputated. There was a sharp conflict of testi- mony on several points, particularly in regard to the fact of the kicking, the testimony of defendant tending to show that the plain- tiff was knocked off the step by the rush of other boys who jumped on with him. The most important exceptions taken by the defend- ant were to the allowance by the trial judge of a question asked on cross-examination by plaintiff's counsel of Cross, the conductor of the train on which the accident occurred, and an important witness for the defense, — if be was not a grandson of Cornelius \''anderbilt, president of defendant, to which he answered that he was ; and to the exclusion of the records of the police station in regard to the accident, to which the plaintiff was taken soon after he was hurt. Samuel Hand, for appellant. The authority to remove a tres- passer from a train in motion has not been expressly or impliedly given to the conductor. (Isaacs v. The Third Ave. R. R. Co., 47 N. Y. 122; Frazer v. Freeman, 43 id. 566; Hughes v. N. Y. & N. H. R. R. Co., 4 J. & S. 222; Wright v. Wilcox, 19 Wend. 343.) The act in its inception and execution was wholly illegal, and entirely in- dependent of, and outside the employment of the conductor. (8 T. R. 299; 2 Salk. 641 ; Isaacs v. Third Ave. R. R. Co., 47 N. Y. 122; Peek v. N. Y. C. & H. R. R. R. Co., 70 id. 587 ; Cohen v. D. R. R. Co., 69 id. 173.) The intention of the plaintiff to tell the truth was a sharp issue in the case, and the court should not have expressed have exceeded his actual authority, or even disobeyed his express instructions, does not alter the rule." Mitchell, J., in Smith v. Munch, 65 Minn. 256, 261. 276 LIABILITY TO THIRD PERSONS. an opinion in regard to his truthfulness. (Meyer v. Clark, 45 N. Y, 285.) Jurors cannot distinguish between a direction in a matter of law or fact, and the direction of the court in regard to matters of fact should be advisory. (Allis v. Leonard, 58 N. Y. 288; Watson V. Gray, 4 Keyes 385.) Nelson Smith, for respondent. The master is responsible for the wrongful act of his servant, where the servant was acting within the general scope of his authority, although he acted negligently, improperlv or reck- lessly. (Rounds V. D., L. & W. R. R. Co., 64 N. Y' 129; Hig- gins V. Watervliet T. & R. Co., 46 id. 23 ; Rounds v. D., L. & W. R. R. Co., 3 Hun 329, 5 T. & C. 475 ; Cohen v. Dry Dock, E. B. & B. R. R. Co., 69 N. Y. 170-3; Limpus v. General Omnibus Co., I Hurlst. & Colt. 528; Wood's M. & S. 585 ; Shea v. Sixth Ave. R. R. Co., 62 id. 180; Peck V. N. Y. C. & H. R. R. R. Co., 6 T. & C (Sup. Ct.) 436.) When the act of the servant, assuming it to have been properly performed, is one which the master himself, if present, might have done, it will be presumed that it was an act within the scope of the servant's authority, and the burden of proof of want of authority rests upon the master. (Jackson v. Second Ave. R. R. Co., 47 N. Y. 274; Rounds v. D., L. & W. R. R. Co., 64 id. 129 ; Gar- retzen v. Duenckel, 50 Mo. 104; Oliver v. Northern Transportation Co., 3 Ore. 84; Poulton v. The L. & S. W. R. Co., L. R. 2 Q. B. 534; Brennan v. Fairhaven & W. R. R. Co., 45 Conn. 284.) The rules of a corporation are supposed to continue until they are shown to have been repealed, (i Greenl. on Ev., §§ 41, 42, 43.) When a judge expresses an opinion on the evidence an exception will not lie, but the party must ask him to submit it to the jury. (3 Wait's Pr. 178, 205; Winne v. McDonald, 39 N. Y. 233; Dows v. Rush, 28 Barb. 157; Carnes v. Piatt, 6 Rob. 270; Mallory v. Tioga R. R. Co., 36 How. 202; s. c. I Trans. App. 203 ; 3 Keyes 354.) A general exception to a judge's refusal to charge is unavailing. (Ayrault v. Pacific Bank, 47 N. Y. 570; Decker v. Matthews, 12 N. Y. 313; Kluender v. Lvnch, 4 Keves 351 ; Caldwell v. Murphy, 11 N. Y. 416.) Andrews, Ch. J. — The jury have found that the plaintiff was kicked from the car while in motion, by the conductor or brakeman. Tliere was a very sharp conflict of evidence upon this question. The testimony of the conductor and brakeman, and of a bystander, tended strongly to show that neither the conductor, nor brakeman touched or said anything to the plaintiff, and that he and other boys jumped off the platform of the car as the brakeman came out of the door. It is not claimed that the finding of the jury upon this issue is un- supported by evidence and the point is not raised by any exception, but it is insisted that the act of kicking a boy from a car while in _ • of anv • n the person in cb- and wilful act, for wi. ,.. .,.„ .. ^.^ ,. .. ie g^eneral regulations adopted by the defe; '' the transaction 'in question, the co" ' id is responsible for its safe an- other servants thereor; ■rized to remove from th. iieir fare, or are drunk, riotous, or un, re that in exercising- this authority he i... sions of law. The only provision of law section 35 of the General Railroad Act ( ' o.'hich provides that if any passenger shall nail be lawful for the or to put him ai,. *he cars, using no u;.. y force, at any u ■ar an}'- dwelling-lioase, on stopping the train, ling the duties of brakem^n, introduced by the ., not printed in the case, and there is no proof before us fic authority given to brakemen to remove trespassers ir s. It is conceded that authority in a conductor to re- H' -passer in a lawful manner, whether conferred b- ' lu is implied, and is incident to his position. We made in respect to the authority of a ■isser on the platform of a. cnr. Tli- niariiy pertain to the protection of th . .le is a servant o^ ^'•^^' -^--r-,:r,r.r,-- r-,n :: '■■'■■ management, and ^ v ly there !', atid a tri.bpc.o-..ei- was put off b} ■necessary violence, would it not ; !st him for the assault that he was a brakeman, and Nned of in ih-.f r-.r,acity, although without expi--Q-? lied au such a case is an info e busint;>: , ■ 5 actual daily ^ ■ - - nation and experience. But 2 ■nove a r . r when . .; or notice of any \ ooy of * >rm of a car, while _- . . .. i-'n^nlT;- -d of ten miles an hour, he can be said to be actu >;'€ of his /^ r.n J. ,>,.-.,.- i- SQ as to make the company ; ' ■ Assuni nade by the plaintiff, the act ' t is, was the act Tf it was. and ■ ing vvjut he did ;-..,wcitook to act 285.) Jurors cai :tct, and ^]i] h^ afi in a matter of ' '' ■ Miatlers of : Watson The 1. where tLv. authority, aK .^3; Kill: N. Y. 416.) om the s a verv of tht ■^il uti the Pi li IS not c! supported b\ but it is insisted that wrongful act of his servant, la the general scope of his : -jently, improperly or reck- i\. R. Co., 64 N. Y. 129; Hig- , t id, 23; Rounds v. D., L. & W. ' ; Cohen v. Dry Dock, E. B. ;[)us V. General Omnibus Co., & S. 585 ; She.a v. Sixth Ave. R. C. & H. R. R. R. Co., 6 T. & C E the servant, assuming it to have ;"'• ' 'er himself, if present, ris an act within the of proof of want of Second Ave. R. R. >., L. ik W. R. R. Co., 64 id. 129 ; Gar- |; Oliver v. Northern Transportation le L. & S. W. R. Co., L. R. 2 Q. B. W. R. R. Co., 45 Conn. 284.) The osed to continue until they are shown ^§ 41, 42, 43.) When a an exception will not lie, jiYUL ii lo the jury. (3 Wait's Pr. ;9 N. Y. 233; Dows V. Rush, 28 270; Mallory v. Tioga R. R. Co.. 203; 3 Keyes 354.) ■;^ refusal to charge is unavailing. 570; Decker v, Matthews, 12 N. •es 351; Caldwell y. Murphy, 11 found that the plaintiff was y the conductor or brakeman. ( nee upon this question. The .keman, and of a bystander, tlie conductor, nor brakeman I, and that he and other boys 1 he brakeman came out of the '.e jury upon this issue is un- iiot raised by any exception, boy from a car while in PERSONAL INJURY. 277 motion, assuming that it was done by the conductor or brakeman, was not within the scope of any authority conferred by the defend- ant upon the person in charge of the train, but was an illegal, wanton, and wilful act, for which the employer is not responsible. By the general regulations adopted by the defendant, in force at the time of the transaction in question, the conductor has charge of the train, and is responsible for its safe and proper management, and brakeman, and other servants thereon, are subject to his orders. He is authorized to remove from the car persons who re- fuse to pay their fare, or are drunk, riotous, or unruly ; but the regu- lations declare that in exercising this authority he must be governed by the provisions of law. The only provision of law on the subject is found in section 35 of the General Railroad Act (Laws of 1850, chap. 140), which provides that if any passenger shall refuse to pay his fare, it shall be lawful for the conductor to put him and his bag- gage out of the cars, using no unnecessary force, at any usual stop- ping place, or near any dwelling-house, on stopping the train. The regulations defining the duties of brakeman, introduced by the de- fendant, are not printed in the case, and there is no proof before us of any specific authority given to brakemen to remove trespassers from the cars. It is conceded that authority in a conductor to re- move a trespasser in a lawful manner, whether conferred by the rules or not, is implied, and is incident to his position. We think the same concession must be made in respect to the authority of a brakeman who finds a trespasser on the platform of a car. His duties do not primarily pertain to the protection of the cars against intruders ; but he is a servant of the company on the train, con- cerned in its management, and fully cognizant of the obvious fact that intruders, who jump upon the train for a ride, without inten- tion of becoming passengers, are wrongfully there. Suppose a train was standing still, and a trespasser was put off by force by a brake- man, using no unnecessary violence, would it not be a good defense to an action against him for the assault that he was a brakeman, and did the act complained of in that capacity, although without express authority? The implied authority in such a case is an inference from the nature of the business, and its actual daily exercise, accord- ing to common observation and experience. But assuming authority in the conductor or brakeman to remove a trespasser in a lawful manner, the question remains, whether when a conductor or brake- man, without warning or notice of any kind, kicks a boy of eight years from the platform of a car, while the train is running at a speed of ten miles an hour, he can be said to be acting within the scope of his employment, so as to make the company liable for the act. Assuming the case made by the plaintiff, the act was flagrant, reckless and illegal ; but the point is, was the act within the scope of the employment and authority ? If it was, and the servant in do- ing what he did undertook to act for the company, and not for him- 278 LIABILITY TO THIRD PERSONS. self or for his own ends, the company is not exonerated, although the servant may have deviated from instructions in executing- the authority, or may have acted without judgment, or even brutally. The removal of trespassers from the cars was, as we hold, within the implied authority of the defendant's servants on the train. The fact that they acted illegally in removing the plaintiff while the train was in motion does not exonerate the defendant. In some cases, where the existence of an authority in the servant to do a particular act is in controversy, and the authority is sought to be established by inferences and implications, it may be a material circumstance bear- ing upon the non-existence of the authority sought to be implied, that the act was one which the master could not do himself, without a violation of the law. But this fact would not be decisive. No doubt the kicking the boy off the car was not only a wrong to the plaintiff, but was a violation of the duty which the train servants owed to the defendant, to exercise proper care in executing the au- thority confided to them; but in most cases, where the master has been held liable for the acts of a servant, the tortious act was a breach of the servant's duty. In this case, the authority to remove the plaintiff from the car was vested in the defendant's servants. The wrong consisted in the time and mode of exercising it. For this the defendant is responsible, unless the brakeman used his au- thority as a mere cover for accomplishing an independent and wrongful purpose of his own. The general subject has been re- cently considered in this court, and it is unnecessary further to elaborate it. (Higgins v. The Watervliet Turnpike Co., 46 N. Y. 23; Rounds v. D. L. & W. R. R. Co., 64 id. 129.) We think the court would not have been justified in taking the case from the jury, * * * All concur. Judgment affirmed.^ ^ In Fulton v. Wilmington Star Mining Co., 133 Fed. 193, a statute pro- vided that no one could be employed as manager of a mine unless he had ob- tained a certificate of competency from the state board of examiners. It was held that this statute did not exempt the employers of a licensed manager from liability for injuries caused by the manager's negligence. See Durkin V. Kingston Coal Co., 171 Pa. St. 193. Compare these cases with Homer Ramsdell Transportation Co. v. La Compagnie Generale Transatlantique, 182 U. S. 406, in which it was decided that a shipowner is not liable for injuries resulting from the negligence of a pilot, who was accepted by the shipowner under a statute compelling the employment of a licensed pilot. PER?.ONv. 279 -ux: r,\Tr- AND CI. . TRIAL sot 1891. Appellate Court c [rumtacker, J. — This action m'ps broiisfbt bv Bi- J: ('ural society for ...litted upon thp pi. .. .. . - omplaint was in two paragraphs, tht ance, that the dr'" • ^ •■-'^ is an ag"' • der the laws of i .^xid in .ipioy ai hU( a iair, as a poiiceman anu :, whose duty was to '^/i^sr.r 1=; peace a _ . ., , those who were not j admission, and to e -re disorderly; that p;.. .1 1. iield a pass entitling- huu to said fair, and he peaceably entered the fair gr. Uwfully therein the "defendant's said em that plp.'r!: 'ant. In son^e casfs • ant to d. liar :^ -. • ■■:,.;iit to be e i by be a material circumstance bear- • authority sought to be implied, ■ ster could not do himself, without fact would not be decisive. No car was not only a wrong to the he duty which the train servants : proper care in executing the au- in most cases, where the master has of a servant, the tortious act was a In this case, tlie authority to remove is vested in the defendant's servants. ■ime and mode of exercising it. For ■ his au- cnt and '■■ he general subject has been re- and it is unnecessary further to Ihe Watervliet Turnpike Co., 46 N. Y. R. R. Co., 64 id. 129.) We think the nstified in taking the case from the All concur. Judgment afiir; ' 111 Fulton iU '.] that no ling Co., 133 Fed. 193, a statute pro- - manager of n mine: unless he had ob- t; ' d of examiners. It v.•Ll^^ ' of a licensed manai.e. licensed pilot. 4 PERSONAL INJURY. 279 THE OAKLAND CITY AGRICULTURAL AND INDUS- TRIAL SOCIETY V. BINGHAM. 1891. Appellate Court of Indiana. 4 Ind. App. 545. Crumpacker, J. — This action was brought by Bingham against the agricultural society for damages resulting from an alleged as- sault committed upon the plaintiff by a servant of the defendant. The complaint was in two paragraphs, the first of which alleges in substance, that the defendant is an agricultural society, incorpo- rated under the laws of this state, and in August, 1890, it held a fair, at which agricultural and other industrial products were exhibited, and to which the general public were invited ; that the defendant had in its employ at such fair, as a policeman and gatekeeper, one Willis Swallow, whose duty was to preserve peace and good order, and to exclude those who were not entitled to admission, and to eject those who were disorderly ; that plaintiff held a pass entitling him to ad- mission to said fair, and he peaceably entered the fair grounds thereon, and while lawfully therein the "defendant's said employe. Swallow, pretending that plaintiff had not entered said fair grounds properly, and that plaintiff ought to be ejected therefrom by said employe, and that plaintiff" had no right of entrance to said grounds, and in an effort by said employe to exclude the plaintiff from said fair grounds, said employe then and there acting as such employe," without any cause or provocation whatever, assaulted the plaintiff and beat and bruised him with a club on and about his head and face so that he was permanently disabled. The second paragraph alleges that said Swallow was possessed of a "cruel and quarrelsome disposition," which unfitted him for the duties of said employment, but the defendant negligently engaged him therein without investigating his fitness or qualifications there- for ; that the plaintiff had the right to go upon the said fair ground, and while lawfully and peaceably attempting so to do said Swallow, "wholly without cause or provocation therefor, but in a spirit of op- pressive malice and wantonness, fell upon the plaintiff and violently ejected him from said fair ground," and while so doing assaulted and beat him with a club so that his nose was broken and he was otherwise permanently injured. A demurrer to each paragraph of the complaint was overruled and the cause, put at issue by the general denial, was tried by a jury, who found for the plaintiff and assessed his damages at $275. Judg- ment was rendered upon the verdict, and the defendant appeals and assigns for error the ruling upon the demurrer to each paragraph of complaint and in refusing a new trial. The point is made against the first paragraph of complaint that it fails to show the assault complained of was perpetrated by the gate-keeper while he was acting in the line of his employment. It 28o LIABILITY TO THIRD PERSONS. is insisted with much persistence and plausibiHty that the averments that appellee was rightfully upon the fair ground, and was orderly and peaceable, show the assault was not committed by the gate- keeper in his capacity as a servant, because he was only authorized to eject objectionable persons, and the pretext that appellee was ob- jectionable, being without foundation, did not characterize the act as one for which the appellant was responsible. The relation of master and servant existed between the appellant and the gate- keeper, to which relation the doctrine of respondeat superior ob- tains. A master is responsible not only for the omissions and short- comings of his servant, but for positive misfeasance in the line of duty. Such responsibility is founded upon the theory that the mas- ter authorized the wrong, either expressly or by implication. It is a fiction of the law that the master is always present in the conduct of his business, and any wrong committed by a servant while so engaged, though tortious and malicious in its character, is the wrong of the master. Authority in the physical absence of the master is often implied from the nature of the employment and the character of the act, though it be shown to have been in violation of the ex- press command of the master. But the application of this principle, for cogent reasons, extends only to acts properly within the range of the employment. A master does not stand sponsor for the de- portment of one in his service except while he is actually engaged about the master's business. It is very difficult in some cases to de- termine what acts are to be imputed to the master and what not; but where the servant clearly departs from his employment, and performs an act for some purpose of his own, independent of, and not connected with, the master's affairs, the latter cannot be held liable therefor. It was said by Lord Kenyon, in McManus v. Crickett, i East io6 : "When a servant quits sight of the object for which he is employed, and without having in view his master's orders, pursues that which his own malice suggests, he no longer acts in pursuance of the au- thority given him, and according to the doctrine of Lord Holt, his master will not be answerable for such act." It was the early rule that the master could not be held for the wil- ful wrongs of the servant, even in the line of the employment, but that rule has been quite generally discarded by the modern adjudi- cations. The test seems to be, was the act complained of done within the general scope of the employment, and with a view of ac- complishing some end thereof? If so, the employer will be answer- able, though the act be ill-advised, malicious, and against his express order. Pittsburgh, etc., R. W. Co. v. Kirk, 102 Ind. 399; Phelon v. Stiles, 43 Conn. 426 ; Adams v. Cost, 62 Md. 264 ; Howe v. New- march, 12 Allen 49; Golden v. Newbrand, 52 Iowa 59; Rounds v. Delaware, etc., R. R. Co., 64 N. Y, 129; Quinn v. Power, 87 N. Y. 535 ; Wood Master and Servant, pp. 593 and 594. ?yl '.ill not be i]. on as a clo.i purpose, IV ... . lile, etc., R. i \i. R. Co., 70 Ala naster e^mploys one in a voci; n conditions and to his ; when and what ' ly be ne.' nsible for tl'; ^it, as 'well .: . )t, and if he . :'re is no occa •ntending to accomplish some end of the emp; bility will still exist. ioctrine is applicable to the case in judgment, as it a:tjears . gate-keeper wns autbori/;.',] to preserve order •; no we^-e not rightiul';^^ -ipo-" the fair ground, and . ^ one was ■ authorized 'ee was ob- .. rtze the act ,le. Ihe relation of ,. L,.^ .li'jicllant and the gate- ;rine of respondeat superior ob- ' for the omissions and short- ■ e misfeasance in the line of .'on the theory that the mas- sly or by implication. It is \ IS always present in the conduct ., committed by a servant while so : malicious in its character, is the wrong 'he physical absence of the master is of the employment and the character violation of the ex- '">tT of this principle, ■\ the range for the de- except while he is actually engaged JL is very difficult in some cases to de- to be imputed to the master and what not ; ' ' departs from his employment, and iiose of his own, independent of, and he latter cannot be held It was said ; • "When a serv.-i and without h: nirircl'i, 12 All . m Deiaw.-ire, etc., K \ ; anus V, Crickett, i East 106 : .:,^ ..,,cct for which he is employed, master's orders, pursues that which ' nger acts in pursuance of the au- o the doctrine of Lord Holt, his ich act." ter could not be held for the wil-. line of the employment, but rded by the modern adjudi- ihe act complained of done iv. vment, and with a view of ac- so, the employer will be answer- nalicious, and against his express v. Kirk,. 102 Ind. 399 ; Phelon ', 62 Md. 264; Howe v. New- and, 52 Iowa 59; Rounds v, 129; Quinn v. Power, 87 N. Y. :::i :-; ur.A '(1,1. PERSONAL INJURY. 28l But a master will not be held liable for the act of a servant who employs his position as a cloak to protect him in the prosecution of a purely private purpose, unconnected with the business of the former. Evansville, etc., R. R. Co. v. Baum, 26 Ind. 70; Gilliam v. South, etc., R. R. Co., 70 Ala. 268 ; Rounds v. Delaware, etc., R. R. Co., supra. Where a master employs one in a vocation requiring him to act under certain conditions and commits to his discretion the duty of determining- when and what action may be necessary, the employer will be responsible for the mis judgment, as well as the misconduct, of the servant, and if he acts when there is no occasion for it at all, though intending to accomplish some end of the employment, such responsibility will still exist. This doctrine is applicable to the case in judgment, as it appears that the gate-keeper was authorized to preserve order and eject those who were not rightfully upon the fair ground, and the duty of judging when one was disorderly or was wrongfully upon the ground seems to have been committed to him. If, in the exercise of such judgment, he wrongfully ejected appellee from the ground, or if a fancied violation of some rule of demeanor so excited the gate-keeper's anger that he inflicted a malicious injury in attempting to enforce its observance, the appellant should be held for the re- sult. The paragraph under consideration contains an averment that the gate-keeper perpetrated the assault while acting as such, and this averment, though general, is not repugnant to any other alle- gation, and in the light of the principles noted it must be held suf- ficient. A radically different question arises upon the second paragraph of complaint. It is based upon the theory that appellant was bound to exercise reasonable care in the selection of a gate-keeper, and having failed to do so it should be answerable for the wrongs of that functionary, whether they occurred in the line of his employment or not. Every person owes a duty to those upon his premises law- fully and by his invitation, express or implied, to see that they are not exposed to danger as far as reasonable care and vigilance can protect them. One has no right to maintain a dangerous pitfall upon his prem- ises where injury is likely to result to one lawfully thereon, nor has he the right to keep a ferocious animal likely to injure those rightfully upon his premises, but we know of no instance in which this principle has been applied to the employment of servants. Every sane person is solely responsible for his own conduct except where he acts for or with another. An employer cannot be held to account for failing to exercise care in the selection of a suitable person for a given position unless the failure to discharge the duties of the position properly resulted in an injury to another; and where an injury so results, the employer is liable, regardless of the amount of 282 LIABILITY TO THIRD PERSONS. care he may have used in the selection of the servant. Counsel for appellee in support of the ruling of the court cite : Chicago, etc., R, W. Co. V. Harney, 28 Ind. 28; Ohio, etc., R. W. Co. v. Collarn, 73 Ind. 261 ; Indianapolis, etc., R. W. Co. v. Johnson, 102 Ind. 352 ; Lake Shore, etc., R. W. Co. v. Stupak, 108 Ind. i. These cases have no application whatever to the question under consideration. They relate solely to the duty of the master to one servant in respect to the employment and retention of co-servants, yet they are all grounded upon the principle that the master is re- sponsible only for misconduct in the line of employment, even where he negligently employs an incompetent servant. The case of Sweat v. Rogers, 6 Heisk. 117, was an action for dam- ages committed by two slaves owned by the defendant in burning and robbing the plaintiff's storehouse. The complaint alleged that the slaves were of "bad character for stealing and pilfering," and the defendant being cognizant of their character and habits in that respect, allowed them to go abroad, and took no steps to prevent them from practicing- their pilfering propensities. The complaint was held bad because the wrong complained of was not done in the line of duty for the master. In the case of Curtis v. Dinneen (Dak.), 30 N. W. Rep. 148, the defendant was an innkeeper and the plaintiff was her guest, and sued for an assault and battery perpetrated by the defendant's serv- ant. The complaint did not show that the servant was acting in the line of his engagement at the time he cornmitted the assault, but it alleged that he "was of a rough, brutal, passionate and ferocious disposition," and was in the habit of assaulting and beating guests, which the defendant well knew, but negligently retained him in her service in and about the inn after such knowledge. The culpable servant was the defendant's husband, and while the court expressed some doubt respecting her liability for failure to discharge him on that ground, it was also declared that she was not responsible upon any theory, because the injury was not inflicted by the servant while engaged as such. See, also, McCann v. Tillinghast, 140 Mass. 327. We know of no principle upon which the paragraph of complaint in question can be upheld, and it was reversible error to overrule the demurrer to it. Complaint is also made of the action of the court in refusing to give instructions three and six, requested by appellant. No. 3 was substantially covered by others given, so no available ■error occurred in refusing it. No. 6 was as follows: "If you find from the evidence that the striking and beating complained of were done by one Willis Swal- low, a servant of the defendant at the time of said striking and beat- ing, and said servant himself was without fault and in a place in which he had a right to be, and that he did the striking and beating of the plaintiff in the honest exercise of the right which the law gave I you must tind for the defendant, :. ..wider -••'^■'•' 'Mr. -,-i-,c- .;,,-. , , , .,!,1 rir.; iendant. ':vn was ieir^-ev!, \^ c are it wa? predicated upon ' > --native by the >^ ;d. 143, is relied upon in support 01 true, where an ii-i<''> i.> '-■■ is sued for -r : only puts in it • act of the p m. So)i ' > an affirmaii V c • I'cspass advances facts ( s by construction of iaw making it the appehant iS incumbent upon appellee to prove not only the c--: the trespass, but that it was committed by appellant's ' raged. The general denial put ail these facts in nee was admissible thereunder tending to dis- .5 or to prove that the servant, when he perpetrated Cf for appellant, ^f it ^.vere trne that appellee a?- er first ok to defend . .... ... .-;aged in:...,. . ,'iained of '' imputation of author; llant, becaus' ■ .Tite-keeper was ac s u -1 I'/jself -r--^ ■ *■ This would Ik- a cood defense. as comnuLieu oy i>, auu Uiu^ clearly the theory of the in:: are of opinion that the court e !is are discussed by counsel, '( 'ey will not likely arise at zv .■ will ' ' 'a. iistructions 1 i paiag: mplaint.^ ■i. Co. V. Wetmore, 19 Ohio St. no ay have used in •1 support of the j6i ; IlK: Lake Shore, etc., ' ■(t^rvaiii in re-.-: vet thev are ; it-. i^ounsei lor go, etc., R. C Hei;5k. 117, was an action for dam- owned by the defendant in burning '^ehouse. The complaint alleged that icter for stealing and pilfering," and of their character and habits in that I'o steps to prevent The complaint not done in the serv aeen (Dak.), 30 N. W. Rep. 148, the :tid the -''"''H" ,^-35; jig^ guest, and . perpeti .le defendant's serv- ;it was acting in the 1 the assault, but it ■ ugh, biuiai, p.io.',iunate and ferocious abit of as.",?.n1tir;K" and beating gfuests, V, but n< retained liim in her • fter sue.. ..., ..edge. The culpable sband, and while the court expressed ility for failure to discharge him on •d that she was not responsible upon •■- not infl" lie servant while vm v. T^ 140 Mass. 327. hich the paragraph of complaint .'; rev^TsiMc :rror lo overrule llic jctions ■ (_) was a^ • V uig and beat;' low, a servant of ; ing, and said ser.: :. which he had a right " "^"^'e plaintitt ' d by appellant. >thers given, so no availabit from the evidence that the re done by one Willis Swal- le time of said striking and beat- without fault and in a place in ■: he did the striking ^nd beating ' £ -'■-■-. ,-: -,-i-' .. k;.,i |.}^g Yaw gr;r:^ PERSONAL INJURY. 283 him of defending his own person against an unlawful assault upon him by the plaintiff, whereby he was in danger of suffering great bodily harm, then you must find for the defendant, because a beating of the plaintiff under such circumstances could not be held to be the act of the defendant." This instruction was refused, we are informed by counsel, upon the ground that it was predicated upon the defense of son assault demesne, and that being an affirmative defense, could not be as- serted under the issues created by the general denial. Norris v. Casel, 90 Ind. 143, is relied upon in support of the action of the court. It is true, where an individual is sued for an assault the gen- eral traverse only puts in issue the fact of the perpetration of the assault by him. Son assault demesne is an affirmative defense, which admits the trespass complained of, but advances facts to justify it. The first paragraph of the complaint in the case before us charges an assault by appellant's servant while in the performance of duty as such, thus by construction of law making it the appellant's as- sault. It was incumbent upon appellee to prove not only the com- mission of the trespass, but that it was committed by appellant's servant while so engaged. The general denial put all these facts in issue, and any evidence was admissible thereunder tending to dis- prove the trespass or to prove that the servant, when he perpetrated it, was not acting for appellant. If it were true that appellee as- saulted the gate-keeper first and the latter undertook to defend him- self , and while so engaged inflicted the injury complained of, it would exclude the imputation of authority from appellant, because it would show that the gate-keeper was acting for himself and not for appel- lant at the time. This would be a good defense, not of son assault demesne, but that it was not appellant's trespass. If A is sued for an assault, he may, under the general denial, show that the assault complained of was committed by B, and thus exclude the idea of his guilt. This was clearly the theory of the instruction under consid- eration, and we are of opinion that the court erred in refusing it. Other questions are discussed by counsel, but they are of such a character that they will not likely arise at another trial, so we will not extend this opinion to decide them. The judgment is reversed, with instructions to sustain the de- murrer to the second paragraph of complaint.^ ^Accord: Evansville & Terre Haute Co. v. McKee, 99 Ind. 519. See Wright V. Wilcox, 19 Wend. (N. Y.) 343. Compare last case with Mott v. Ice Co., 73 N. Y. 543, and Levy v. Ely, 48 App. Div. (N. Y.) 554. See also Little Miami R. R. Co. v. Wetmore, 19 Ohio St. no. 284 LIABILITY TO THIRD PERSONS. GOLDEN V. NEWBRAND et al. 1879. Supreme Court of Iowa. 52 la. 59. Appeal from Mahaska Circuit Court. It is stated in the petition that the "defendants unlawfully wilfully and maliciously killed David Golden," and this action is brought to recover damages caused by said act. The answer consisted of a general denial. There was a trial before the court. On the con- clusion of the plaintiff's evidence the defendants moved the court to exclude all evidence introduced, "because it was incompetent, im- material and irrelevant, and failed to show any liability on the part of the defendants." The motion was sustained and judgment ren- dered for the defendants for costs. The plaintiff appeals. Seevers, J. — I. At the proper time the defendants asked the court to make a finding of facts. As this was not done, it is insisted this constitutes prejudicial error. If no competent evidence was in- troduced, no finding of facts could be made. The theory of the court was that no fact had been established by legitimate evidence. The case stood before the court as if no evidence had been intro- duced. If this is correct, then there was no error in failing to make a finding of facts. II. Using the language of appellant's counsel, the following facts were established : "That the defendants, ever since 1876, have been owning and operating a brewery in the city of Oskaloosa, Iowa, under the firm name and style of Blattner & Newbrand, and that Charles Blattner, during all that time, has been and is now their superintendent, managing and running the business, and that one Max Roenspeiss during all that time has been and is now a hand em- ployed in the business there under the control of Charles Blattner, and paid his wages by him out of the firm moneys, and that a part of his business was to guard the brewery, and he slept there at night for that purpose, and that there was a revolver kept there by the firm, and Roenspeiss had access to it and slept with it under his pillow at night ; that defendants were engaged in the business of manufactur- ing and selling beer, and, like all beer saloons, rows were likely to occur, and Roenspeiss was empowered to protect the property and to quell disturbances, and worked there in the business generally. "In the afternoon of the day David Golden was killed, he and his brother were there drinking beer, and got kicked out of the brew- ery. Afterwards, about supper time, they went back to the brewery and drank some more beer, and being a little drunk, mad and crazy, John Golden got into a little fracas with John Mackey, and they skirmished until they got out of the brewery. In the meantime Max Roenspeiss came out of the office, where the revolver was kept, and approached the east door, and just about that time David Golden, being out of doors on the east side of the brewery, threw a brick PERSONAL, TNJCRS- 285 into the brewery, and hit tho - , , : , s '^tnrfe.-l out of the east door after him, and Dave ; '' ■" ■ after going fifteen or twenty fec<. . ■t Dave in the back of the head, and ! •It forty or fifty I the evidence \\ . ;>: .V that defendiint.'5 were iiab' inaL._ ui was properly excluded, 'i.^ that Roenspeiss was employed to guard and p: ., ;,. .1 . -^rpose he was furnished with a pistol, .^ while in the line of his duty. Without dei il the dt . ' '' " was re; hows c- not liri ing the : -^ line of peiss liad shot with the pistol from the brewery y passing along the highway, the defendants clears, i- been liable, and we think there is no essential diffc ' ' rl the one at bar. To protect the brew - ^5 to shoot and kill a person who was The killing was not, done in the isoeiss was emploved to i - , :(= * * ..vATOiN 1 v. i:-L kv^'jj:.. y J.v:\ii-v vv.\ Supreme JuDici. Maine. 59 recover damage pass upon ar: ugh which 's railroad ■• of were fi -qf of a r-X' ■le the h iitly per' ^^li- ; ■■ caking of i '■'.,■ , :s the case. \ -; J. — In 1850 the defendant corp< a railroad from B . ana mdary line of Ne^^ '- f'X- but wa? , 1872, V, road. On - '■i^,r r.M defendnnt corn..., . lell for the construe ^'ew Brunswi ' oOLDEiX APPEAL from Mah; it is stated in th^- • und maliciouslv 1-:; 1 oi tli ::ie all ^ material m of the dc I dered for vcni-'aiu.~i niiui\viLii j):o- . that d( the afi( iiijii <:iank; some more Joliri C-iolden got i'lft skjrmi?hed until U' Roenspeiss came oui approached the east < being out of door ind this action is brought to The answer consisted of a ore the court. On the con- e defendants moved the court to 'ecause it was incompetent, im- how any liability on the part c, sustained and judgment ren- The plain tifl appeals. Mcr time the defendants asked the •. As thi«t was not done, it is insisted r. If n' •nt evidence was in- could h The theory of the . legitimate evidence. rice had been intro- r in failing to make ppeliant following facts ;:fendants, evti m:icc 1876, have been erv in the city of Oskaloosa, Iowa, I ittncr & Newbrand, and that !dL iii; c, has been and is now their running the business, and that one time has been and is now a hand em- ider the control of Charles Blattner, f '^ nn(> 1; nd that a part of ,..,.:;! L there at night . a revolver kcpi there by the firm, ! slept with it under his pillow at id in the business of manufactur- icer saloons, rows were likely to red to protect the property and ■ ■? in the business generally. ; Tolden was killed, he and 1 ' ' • - ed out of the brew - hack to the brewery : little drunk, mad and crazy, ith John Mackey, and they very. In the meantime Max :• the revolver was kept, and ut that time David Golden, the brewery, threw a brick I PERSONAL INJURY. 285 into the brewery, and hit the copper cooler, and Roenspeiss started out of the east door after him, and Dave turned and ran, when Roenspeiss, after going fifteen or twenty feet from the brewery, fired and shot Dave in the back of the head, and he fell forward on his face, about forty or fifty feet from the brewery." Conceding the evidence was as above stated, it did not, in our opinion, show that defendants were liable. It was, therefore, im- material, and w^as properly excluded. The theory of appellant is that Roenspeiss was employed to guard and protect the brewery, for which purpose he was furnished with a pistol, and that he shot the deceased while in the line of his duty. Without determining whether if this was ail the defendants would be liable, we think the fact that the deceased was retreating from the brewery, at the time the fatal shot was fired, shows conclusively it was not fired for or with the intent of protecting the brewery, or in the line of Roenspeiss' duty. If Roenspeiss had shot with the pistol from the brewery a person peaceably passing along the highway, the defendants clearly would not have been liable, and we think there is no essential difference between the case supposed and the one at bar. To protect the brew- ery did not require Roenspeiss to shoot and kill a person who was retreating therefrom. The killing was not, therefore, done in the line of the duty Roenspeiss was employed to perform.^ ^ ^ ^^ Affirmed. EATON V. EUROPEAN, ETC., RAILWAY CO. 1871. Supreme Judicial Court of Maine. 59 Me. 520. Action to recover damages for trespass upon and injury to plain- tiff's lands, through which defendant's railroad was located. The acts complained of were the building of a road through plain- tiff's lands, outside the location of the railroad ; also the kindling of fires and negligently permitting them to spread and burn plaintiff's timber, and the taking of timber for building hovels and camps. The opinion states the case. Appleton, C. J. — In 1850 the defendant corporation obtained a charter to build a railroad from Bangor to Mattawamkeag, and thence to the boundary line of New Brunswick. The charter ex- pired several times, but was revived from time to time, and, ulti- mately, December 31, 1872, was fixed for the final completion of the road. On 7th August, 1865, the defendant corporation entered into a contract with Pierce & Blaisdell for the construction of a railroad from Bangor to St. John, in New Brunswick. It was specified ' A portion of the opinion regarding the admissibility of evidence is omitted. 286 LIABILITY TO THIRD PERSONS. therein that the work should "be constructed under the general su- pervision and direction of the chief engineer of said company, as re- quired by the contract and specification ;" and that the railroad was "to be built on the line as located, or to be located and marked out by the engineers of the company." This contract, by the consent of the defendant, was assigned by Pierce & Blaisdell to the International Railway Construction and Transportation Company. On 24th May, 1869, this company con- tracted with Brooks & Ryan "to construct, build, complete and finish in a good, substantial and workmanlike manner, under the superin- tendence of the chief engineer of the E. & N. A. R. Co., for the time being," all the work within certain limits defined in said contract, at a certain sum per mile. Brooks & Ryan were to make good any damages to the adjoining lands caused by blasting and removing fences, etc. On November i, 1869, Brooks & Ryan contracted with Riley & Bunston for all the grading, etc., of the portion of the railway be- tween stations No. 650 and No. 746, the work to be done in accord- ance with the contract of May 24th, 1869, between said International Railway Construction and Transportation Company and said Brooks & Ryan. There was likewise a similar contract between Brooks & Ryan and Wiseman for the grading between stations No. 800 and No. 854. The acts of which complaint is made, and for which damages are sought to be recovered, are those of Riley & Bunston and of Wise- man, or of those in their employ. The relation of master and serv- ant did not exist between them and the defendants. They were not under the direction and control of the defendants. They were not employed and could not be dismissed by the defendants. They were sub-contractors or the servants of sub-contractors. The sub-con- tractors were responsible to those with whom they had contracted, and their servants to those in whose service they were laboring. When the contract is to do an act in itself lawful, it is presumed it is to be done in a lawful manner. Unless, therefore, the relation of master and servant exists, the party contracting is not responsible for the negligent or tortious acts of the person with whom the con- tract is made, especially if those acts are outside of the contract. If the injury was the natural result of work contracted to be done, and it could not be accomplished without causing the injury, the person contracting for doing it would be held responsible. Butler v. Hunter, 7 H. & N. 826. In Reedie v. The London & N. W. R. Co., 4 Exch. 244, a company empowered by act of parliament to con- struct a railway, contracted under seal with certain persons to make a portion of the line, and by the contract reserved to themselves the power of dismissing any of the contractors or workmen for incom- petence. The workmen, in constructing a bridge over a public high- way, negligently caused the death of a person passing beneath the PRRSONA" .... .,,,^t ..:. ., ....... .,., ..... .., .... ....... i-i ^ suit .idministrafrix, that the company was n rton '. L. 866, A contracted ' * '. anH enteritd into a sub- same. 1 lit plaintiff fell over them and '•V "csponsible for the negligence, the pre.'^ent case falls within ■ (i that the s^ ' . 5, is liable c; one by inmself or his sc . :ied for." In Peachey v. , it contracted with certain mdividuals to cc -ki;. , ;-rhway, who employed one C to fill in ;.. ind to carry awav the surplus. C left the ' •"'■'' " ^ ' Intiff, dr^ iield tb- 'onsibic ior uie . c of C. 'dy to do what u , done irj ; mer. It was done negligently and miproperly, and th^ '■'"ired, but it was not thus done by the defendants, ace, and they were not held responsible. So in the with these ..ns,5N.V , ..... .1^. ; from the c w York wer in . u iet, and w.k. it bv . ■ , ronsiTuct it at the injury, is a v..:iu These views vv^-c .'.nn k. 8 N. Y. 222. In Kellv \ m his employ. IIRD PERSONS. iherein.that tKe work shr i>ervision and direction quired by the cont^'r to be built on th- by the engineers ■ This contract. rraeted \\ i' in a goofi beinq-,'" - a ctir^ iider the general ;i of said company, as re- ad that the railroad was located and marked out defendant, was assigned by " T^. :vvM ~ ion and riy con- . curupicic and finish i 'J . : .;i, under the superin- :.c E. & N. A. R. Co., for the time ■ limits defined in said contract, at v^t Ryan were to make good any . iused by blasting and removing : acted with Riley & i; of the railway be- ■ - be done in accord- 1 '^aid International and said Brooks i'ttween Brooks & lations No. 800 and H. & pOi'. I'll w .'. lii ; lower of dismisti ! for which damages are ,^t Riley & Bunston and of Wise- . The relation of master and serv- and the defendants. They were not ' ' f the defendants. They were not d by the defendants. They were I ! . The sub-con- ' had contracted, ■e service they were laboring. act in itself lawful, it is presumed r. Unless, therefore, the relation ■"f^- contracting is not responsible f person with whom the con- c outside of the contract. If • k C(3ntracted to be done, and nj; the injury, the resj/onsible. T I he London & N. W. R. Co., oy act of parliament to con- with certain persons to make •t reserved to themselves the tors or workmen for incom- ' I over a public hi: '• passing beneath rl PERSONAL INJURY. 287 bridge, by allowing a stone to fall upon him. It was held, in a suit by the administratrix, that the company was not liable. In Overton V. Freeman, 73 E. C. L. 866, A contracted with parish officers to pave a certain district, and entered into a sub-contract with B, under which the latter was to do the paving of the street, the materials be- ing supplied by A and brought to the spot in carts. Preparatory to paving, the stones were laid by laborers, in the employ of B, on the pathway, and there left unguarded during the night, so as to obstruct the same. The plaintiff fell over them and was injured. It was held that B was responsible for the negligence, and not A. "I think," says Maule, J., "the present case falls within the principle of those authorities which have decided that the sub-contractor, and not the person with whom he contracts, is liable civilly, as well as criminally, for any wrong done by himself or his servants in the execution of the work contracted for." In Peachey v. Rowland, 76 E. C. L. 181, the defendant contracted with certain individuals to construct a drain in a public highway, who employed one C to fill in the earth over the brick work, and to carry away the surplus. C left the earth so much raised above the level of the road that the plaintiff, driving by in the dark, was thereby upset and injured. It was held that the defendants w'cre not responsible for the negligence of C. The de- fendant employed somebody to do what might be done in a proper and safe manner. It was done negligently and improperly, and the plaintiff was injured, but it was not thus done by the defendants, nor at their instance, and they were not held responsible. So in the case at bar, the negligent or tortious acts of the sub-contractors or of their servants were not the acts of the defendants, and if not their acts, nor done by their procurement, the sub-contractors, or the servants committing them, alone are liable. In conformity with these views are the decisions in this country. In Blake v. Ferris, 5 N. Y. 48, it was held that the defendants, who had a license from the city of New York to construct at their own expense a sewer in a public street, and who had engaged another person to do it by contract, to construct it at a stipulated price for the whole work, were not liable to third persons for any injury re- sulting from the negligent manner in which the sewer was left at night by the workmen engaged in its construction. The doctrine there held was, that the immediate employer of the servant, whose negligence occasions the injury, is alone responsible for the negli- gence of such servant. These views were affirmed in Pack v. Mayor, etc., of New York, 8 N. Y. 222. In Kelly v. Mayor, etc., of New York, II id. 432, the corporation of the city of New York had or- dered a street to be graded, and contracted wath a person to do the grading. It was held that they were not liable for damages occa- sioned by the negligence of the person who had contracted to do this work, or of the laborers in his employ. In Clark v. Vermont and Canada R. R. Co., 28 Vt. 103, and in Pawlet v. The Rutland and 288 LIABILITY TO THIRD PERSONS. Washington R. R. Co., 28 id. 297, it was held tbat the defendants were not Hable for the negligent or tortious acts of the servants of those who had contracted to do certain work for these corporations ; that no privity existed between such servants and the corporations. "Though it may be assumed in the case before us," remarks Ben- net, J., in the last-named case, "that a public nuisance had been com- mitted by the servants of the sub-contractor, and a particular injury has resulted therefrom to Phelps, and for which the town (of Paw- let) had been compelled to make satisfaction, yet we cannot discover any privity existing between the defendants and the employes of the sub-contractor. The contract made for the building of the abutments to the bridge was for a lawful purpose, and in no way involved the commission of a wrong, and the employes of the sub-contractor were not the servants of the defendants nor under their control." In Cuff V. Newark and New York R. R. Co., 9 Am. Law Reg. N. S. 541, the question under discussion was very carefully considered and examined by the supreme court of New Jersey, and with like conclusions. "The rule is now firmly established," remarked Depue, J., "that when the owner of lands undertakes to do a work which, in the ordinary mode of doing it is a nuisance, he is liable for any injuries which may result from it to third persons, though the work is done by the contractor exercising an independent employment and employing his own servants. But when the work is not in itself a nuisance, and the injury results from the negligence of such con- tractor or his servants in the execution of it, the contractor alone is liable, unless the owner is in default in employing an improper and unskilful person as the contractor." In Callahan v. Burlington & Missouri River R. R. Co., 23 Iowa 562, the plaintiff sought to recover compensation for damage done to his timber, and by a fire negligently set by the employe of a sub- contractor with the defendant corporation, for the purpose of clear- ing the way of trees, logs, brush and rubbish. The contract provided that the way should be cleared of all trees, etc., by removal or burning, as the engineer should direct, before the grading should be commenced. The engineer ordered the burning, which by the negligence of the person who set the fire, escaped on the plaintiff's land, doing there much injury, and the question pre- sented was whether the railroad corporation was responsible for the negligence of a servant of a sub-contractor. In delivering the opinion of the court. Beck, J., says : "If the person sought to be charged under the rule as employer did not contract with the party committing the wrongful act for his labor or services, and is not directly liable to him for compensation for such labor or services, and has no such control over him as will enable the employe to direct the manner of performing the labor or services, he is not liable for the wrongful act of the agent or servant. In order to create the lia- bility, it is especially necessary that the control of the employe over 2Sq such a character as tc .mng the services, and to p: . aone in order ^'- -^ oniplish V. s have received ion of tli ' nd. In Gilbert a 3 Irish owner of the s: 'addy. b ' as secretary lu ■or of Wicklaw ti of the negligence of comm. > nad c. : certain piles, etc., and neglec, ^ i- >-ar, ny light, or to use any other rei : .^ from being driven thereon. dants pleaded, among other pleas, that th- •1 of the ' etc., the - I the said Kiiiicn. L ., in delivering his opinion, ; I think the case -e rule that the contractor, and not the employee, ougl. ■> -- is a plain difference," remarks Richards, B., "between the ■t ^ter and servant, and that of employee and contractor. ■ ce was authorized to perform the work, and he author - otitractor. No man would drive down piles in a navigable (hout being authorized. Therefore, I think it was the con- duty to have apprised his employer that this work had .such a stage that it was necessary to get ligh?'~ *■'- -■* It was not to be expected that the commis ' on all occasions to see what mit;' nger. The coritract-^r frjiled in pe- . ■ • -^ t to be e questi ":-, .Vi J iS liable. iractor, t' ^le, for it is clear, from all the cases, able the employee " '■ It appe?'- :v of the contra^ i;t these ^ ' '' "The prin(.i;.)c ot law is c'. ■r\ a person is engaged by cor .ctor and not ■ iield to be the Rv;- r.., 9th March, 1850, 22 Jur. 394, 1 ontracts with one man to do a pi jutracts with another, the sub-o-; iiage committed in the course ^" ' e law was again sustained ; ow Railway Co., , this suit, relies 1 •X) ; the case was this 2S8 Washington R. R. ^- .. -. ere not liable for the ne ihose who had contract- ' that no privity existe< "Though it may 1 net, J., in the last uiitted by tlie has resulted i' let) had been any privity ex sub-contractor were Ii, C to his umber, contractor with ing the way of <.u^* the way r,l\< in', as the ev nder the rul co.ii.ujiLLUig the \i directly liable to and has no such c> the manner of per the wrongful act ot ti. ;.M il :.':- the dcfcndai;!.: -ervants of rporations ; >rporations. . us, remarks Ben- ..cance had been com- ) . and a particular injury ! vhich the town (of Paw- otion, yet we cannot discover iants and the employes of the ^iie building of the abutments ; use, and in no way involved the employes of the sub-contractor tdants nor under their control." K R. R. Co., 9 Am. Law Reg. N. ussion was very carefully considered court of New Jersey, and with like lirmly established," remarked Depue, nds undertakes to do a work which. it is a nuisance, he is liable for any it to third persons, though the work rcising an mdependent employment s. But when the work is not in itself ilts from the negligence of such con- xecution of it, the contractor alone is ■efault in employing an improper and ror." Missouri River R. R. Co., 23 Iowa >ver compensation for damage done itly set by the employe of a sub- .jjoration, for the purpose of clear- ; and rubbish. The contract provided vd of all trees, etc., by removal or 1 direct, before the grading should r ordered the burning, which by who set the fire, escaped on the luch injury, and the question pre- .1/1 corporation was responsible for lb-contractor. In delivering the .s: "If the person sought to hf r did not contract with the pa' is labor or services, and is ;■ lion for such labor or servii:. will enable the employe to direct •r services, he is not liable for t. In order to create the ; J ,^f i]^ ipV.i /■• PERSONAL INJURY. 289 the servant should be of such a character as to enable him to direct the manner of performing the services, and to prescribe w^hat par- ticular acts shall be done in order to accomplish the acts intended." The same views have received the sanction of the highest judicial tribunals in Ireland. In Gilbert v. Halpin, 3 Irish Jurist, N. S. 300, the plaintiff, as owner of the schooner Paddy, brought an action against the defendant as secretary to the commissioners empowered to improve the harbor of Wicklaw, to recover damages for its loss by reason of the negligence of commissioners, who had caused to be placed certain piles, etc., and neglected to place, or cause to be placed, any light, or to use any other reasonable precaution to guard vessels from being driven thereon. The defendants pleaded, among other pleas, that they committed the execution of the work to their contractor, John Killien, and that at the time, etc., the said piles were still in the possession and under the control of the said Killien. Green, B., in deHvering his opinion, says : 'T think the case falls within the rule that the contractor, and not the employee, ought to be liable." "There is a plain difference," remarks Richards, B., "between the case of master and servant, and that of employee and contractor. The employee was authorized to perform the work, and he author- ized the contractor. No man would drive down piles in a navigable river, without being authorized. Therefore, I think it was the con- tractor's duty to have apprised his employer that this work had come to such a stage that it was necessary to get lights to prevent accidents. It was not to be expected that the commissioners would be on the ground on all occasions to see what might be required to guard against danger. The contractor failed in performing his duty, and I think he ought to be liable." "The question," says Penne- father, B., "is, who is liable. If the contractor, the commissioners are not liable, for it is clear, from all the cases, that if the con- tractor is liable the employee is not. It appears to me, that if it was the duty of the contractor to put these lights, his employees were not bound." "The principle of law is clear," remarks Pigot, C. B., "that when a person is engaged by contract to do a certain work, the contractor and not the employee is liable for this." Such, too, is held to be the law in Scotland. In McLean v. Rus- sell, McNee & Co., 9th March, 1850, 22 Jur. 394, it was decided that when a person contracts with one man to do a piece of work, and the latter sub-contracts with another, the sub-contractor alone is liable for any damage committed in the course of the work by him." This view of the law was again sustained by the same court in Shield V. Edinburgh & Glasgow Railway Co., 28 Jur. 539. The plaintiff, in support of this suit, relies upon the case of Bush V. Steinman, i B. & P. 400 ; the case was this : A having a house by 19 — Reinhard Cases. 290 LIABILITY TO THIRD PERSONS. the roadside, contracted with B to repair for a stipulated sum ; B contracted with C to do the work ; C with D to furnish the materials ; the servant of D brought a quantity of lime to the house, and placed in the road, by which the plaintiff's carriage was overturned. Held, that A was answerable for the damage sustained. Without particu- larly examining the reasoning of the court, it is sufficient to say that it has been long since overruled in England and in this country, as will abundantly appear by the cases cited. It is true the case is cited with approbation in Lowell v. Boston & Maine Railroad, 23 Pick. 24, but subsequently, upon an elaborate and careful review of the authorities, it was overruled in Hilliard v. Richardson, 3 Gray, 349. It can no longer be deemed an authority on the other side of the Atlantic. The next case cited in support of this claim is Lowell v. B. & M. R. R., 23 Pick. 24, but so far as that rests upon Bush v. Steinman, as has already been seen, it has been overruled. "The accident" in that case, observes Thomas, J., in Hilliard v. Richardson, "occurred from the negligence of a servant of the railroad corporation, acting under their express orders. The case, then, of Lowell v. Boston & Lowell Railroad stands perfectly well upon its own principles, and is clearly distinguishable from the case at bar. The court might well say, that the fact of Noonan, being a contractor for this section, did not relieve the corporation from the duties or responsibility imposed on them by their charter and the law, especially as the failure to re- place the barriers was the act of their immediate servant, acting under their orders." The defendants in the present case would be liable for any and all wrongful acts done by their "immediate serv- ants, acting under their orders." They should not be held responsible for the torts of a contractor engaged to do a specified work, lawful in itself, which might be performed without interfering with the rights of others, nor for the torts of his servants, whom they never employed, over whom they had no control, and whom they could not discharge. In Wyman v. Penobscot & Kennebec R. R. Co., 46 Me. 162, the tiain by which the injury was caused was "run under tne direction of the company and under their control," and it was, consequently, held liable. In Veazie v. Penobscot R. R., 49 Me. 1 19, the plaintiff town sought to recover of the defendant corporation the amount it had been compelled to pay in consequence of a defect in a highway occasioned by their neglect. The injury, it is stated in Phillips v. Veazie, 40 Me. 98, was occasioned "by the acts of the Penobscot Railroad Company, in constructing their road over that of the de- fendants." The decision in Veazie v. Penobscot Railroad Co., is placed on the ground that the work causing the injury was done "according to the plans and directions of the chief engineer of said company." It is undoubtedly true, that when the contractor is to follow the directions of an engineer of the contracting corpora- TV'kBC.V ■it 3n'.i held airccUc arc of Lhout such ci' ih'oad corpor... .. such torts of a coiv: rporation. If the cinn: ■-. .'■': done are legal, the wren : ::, and not those of the party v.. t is different when the relation .:;erefore, of Veazie v. Penobscot .Rail' svith all the authorities, if these wrongf- r'.one by the specific direction of their engii..-v.. ;r ground upon v»hich the decision is placed, thi.. -f ' ■ responsible, whatever contracts they may n se with whom they contract, can hardly 1^ .ich an extent. The authorities already cited abundantly ''^: the neglerr ':d tarts of contractors or their servants, 'tions a. be governed by other or dift'erent l•>^e applicaL'iv. .. ■ Liier corporations or to individuals. : that it is specified in the original contract with Pierce & n.at "the work shall be constructed under i' .al su- f the chief engineer of said company, as r. v thic? cifications," doc .rily ren ■; liable for whate "actor ■ '. ■fully do. The corpo: lOt to bc^ .::tracted to be done * • ^- + - :Ctioned by corpo ■ '., 8i E. C. L. 55u, uic wonc \va: ding to plans prepared by and company's surveyor, yet the rai' ;:sible for an injury resulting to ■' ;t manner in which the work was d Mc,.,'; K. ^^,^^ ,^. ,.,,..',.-;: or by an ^''ew Yo ^ lUK'ci" tnc circectior ■ . - ioner of repairs and .;• e work," yet the cii ■ '' by the negligence o he clause in question," obser ^^'>n no power to control the it he might make his ov : -' ■ -nn lies at the four d for the acts n- 2(yj lABILTTY TO THTRD PFRSONS. contracted with C to the servant of D ^-- in the road, by w' that A was n lavly exaniir that it has be as will abun ' cited with a 23 Pick. 24, 1 of the autho!^ 349 ' tlie . ioyed, o\ ■ . '. Jiccbie. in \ • "^ou^ht : to It , CO] inpelleci tc. ■ * 1 V their iif. fe. 98, w-' .U... i. >.;■, V-'-' nipany, in cv. fendants/" The decision ' ;' '. ed on tl ■ ■? '•rdino- I ted sum; B ' he materials ; :. and placed rned. Held, . sustuuied. particu court, it isi .>. to sa\ I England arid m tins country, : cited. It is true the case is Boston & Maine Railroad. ,1 o ^- elaborate and careful review ' in Hilliard v. Richardson, 3 Gra> , '-■i-d ail authority on the other side ol Tt of this claim is Lowell v. B. & M. as that rests upon Bush v. Steinman, as been overruled. "The accident" in ., in Hilliard v. Richardson, "occurred ant of the railroad corporation, actinj^ ;- : — "'en, of Lowell v. Boston & I its own principles, ami the cii.s. The court might well leing a > r for this section, did in the duties or responsibility imposed • he law, especially as the failure to re t of their immediate servant, acting endants in the present case would be il acts done by their "immediate serv- "' They should not be held respon, .' ' • traped to do a specified work, la,. 'out interfering with the rvants, whom they never controi, and whom they could ■lebec R. R. Co., 46 Me. 162, the 'd was "run under tne direction o! iitrol," and it was, consequently, t R. R., 49 Me. 119, the plaintiff endant corporation the an^nnrt i*^ . cquence of a defect in a ' injury, it is stated in PL . ■ d "by the acts of the Penob '.<; their road over that of the te V. Penobscot Railroad Co causing the injury was d IS of the chief engineer , that when the cont : of the contracting ~ ( PERSONAL INJURY. 29I tion, and he is directed by such engineer to do an unauthorized and illegal act, the corporation, thus acting by its agent, would be held liable. But if the engineer gives no such directions, and the tortious acts of the contractor or of his servants are of his or their mere motion, and without such direction or authority, it is difficult to per- ceive why a railroad corporation, in such case, should be held any more liable for such torts of a contractor than an individual, or a city, or any corporation. If the contract is a legal one, the acts contracted to be done are legal, the wrongful acts of the contractor are his own, and not those of the party with whom the contract is made. It is different when the relation of master and servant exists. The case, therefore, of Veazie v. Penobscot Railroad Co. is in accordance with all the authorities, if these wrongful or negligent acts were done by the specific direction of their engineer. The other ground upon which the decision is placed, that "the company must be responsible, whatever contracts they may make," for the torts of those with whom they contract, can hardly be sus- tained to such an extent. The authorities already cited abundantly show that for the neglects and torts of contractors or their servants, railroad corporations are not to be governed by other or different rules than those applicable to other corporations or to individuals. The fact that it is specified in the original contract with Pierce & Blaisdell that "the work shall be constructed under the general su- pervision of the chief engineer of said company, as required by this contract and specifications," does not necessarily render the defend- ant corporation liable for whatever the contractor or their servants may wrongfully do. The corporation is not to be held for an illegal act not contracted to be done, nor directed by their engineer, and in no Avay sanctioned by corporate action. In Steel v. The Southeast- ern Railway Co., 81 E. C. L. 550, the work was to be done by the contractor according to plans prepared by and under the superin- tendence of the company's surveyor, yet the railway company was held not responsible for an injury resulting to a third person, from the negligent manner in which the work was done by such contractor. It was not caused by the company or by any servant in their em- ploy. In Kelly v. Mayor, etc., of New York, 11 N. Y. 435, the work was to be done, "under the direction and to the entire satisfac- tion of the commissioner of repairs and supplies, and the surveyor having charge of the work," yet the city was held not responsible for damages caused by the negligence of workmen in the employ of the city. "The clause in question," observes Selden, J., "clearly gave the corporation no power to control the contractor in the choice of his servant. That he might make his own selection will not be denied. The right of selection lies at the foundation of the responsi- bility of a master or principal for the acts of his servant or agent." To the same effect was the cases of Pack v. Mayor, etc., of New 292 LIABILITY TO THIRD PERSONS. York, 4 Seld. 222 ; Cuff v. N. & N. Y. R. R. Co., 9 Am. Law Register 541. In Hobbett v. The London & N. W. Ry. Co., 4 Exch. 253, the company by their contract reserved to themselves the power of dis- missing any of the contractor's workmen for incompetence. "Our attention," observes Rolfe, B., "was directed, during the argument, to the provisions of the contract, whereby the defendants had the power of insisting on the removal of careless or incompetent work- men, and so it was contended they must be responsible for their non-removal. But the power of removal does not seem to vary the case. The workman is still the servant of the contractor only, and the fact that the defendant might have insisted on his removal if they thought him careless or unskilful, did not make him their servant." Though a person employing a contractor is not responsible for the negligence or misconduct of the contractor or his servants in executing the act, yet if the act is wrongful, the employer is re- sponsible for the wrong so done by the contractor or his servants, and is liable to third persons for damages sustained by such wrong- doing. Ellis V. Sheffield Gas Consumer Co., 75 E. C. L. 767. So if, in the present case, the contract was to do a wrongful act, the defendants must be held Hable for damages occasioned thereby. Or, if the defendant's engineer directed the contractors to do what was illegal and unauthorized, as by working outside of the limits of the true location, the defendants must be held liable for any trespass thus committed. By R. S. 1857, Ch. 51, § 23, "Legal and sufficient fences are to be made on each side of land taken for a railroad, when it passes through enclosed or improved land or wood-lots belonging to a farm before the construction of the road is commenced, and they are to be maintained and kept in repair by the corporation. For any neglect of it during the construction of the road, and for injuries thereby occasioned by its servants, agents or contractors, the di- rectors are jointly and severally, personally liable." By section 25, "the corporation is liable for trespasses and injuries to lands and buildings adjoining, or in the vicinity of its road, com- mitted by a person in its employ, or occasioned by its order, when the party injured has, within sixty days thereafter given notice of it to the corporation ; but its liability does not extend to acts of wilful and malicious trespass. An individual in the employ of the company is not a person con- tracting with the company to do and perform a certain contract. The difference between the contractor and servant, or employee of the company, is recognized by the statute. The provisions of sec- tion 25 apply only to those in the employ of the corporation, or those acting under its orders. The provisions of § 23 embrace contractors. As contractors are included in one section, and omitted in the other, we must deem K KOWLIID': . therefore, spv ler this sec ", factors. remainder of the op; a- I'-' /whether, in fact, the rcr >!.in !>■ v. tion, and to detennine this question the Section 3. — Notice to and Knowledge of Agent it V. THE NTT ASSOCIA' . arc £.;,. .d that c ttiai was awaideti tu the plaiutifi at September M. C. 240), the main question involved ;> t.ie uise of a second appeal, the defendant c< rt shall review -^ ■' ■ •■ * ' '- -'-— — hearing. There ramfications. ' co:ini:i Kearney '" on whicli -rief on ; 1 MUTT rV 'If missing any of the attention," to the pro power of V men, and n-remo\ .ue case. and the fa^ if ^'- "^ _ iw Registc £xch. 253, the iv>, - .ixe power of dis- r incompetence. "Our ■ the argument, ' 'l^nts had the ■ ciess or ^:;nt work- :st be i\ , . • for their \al does not seem to vary ^: vant of the contractor only, might have insisted on his removal i -•^-•''' :', fh'd not make him their is not ; le for .>:tor or aits in e act is wrongful, the ernpioyer is re- '.cmc hv ihf ^ iiT;ictor or his servants, ed by such wrong- .IS '_i.uL.:>a .:w. E. C. L. 767. So contract wa^ wrongful act, the 1 thereby. Or, ) do what was ijy won. •1 the limits of the ' ■■ mu?t e for any tresoas; ..-.,,,«. c....a -^.....cient fences arc ^^ u^. ;cen for a railroad, when it passes j':ir'-;i hpfo' occasr .a on. Fur any , cad for injuries agents or contractors, the di- .r.',lly liable." for trespasses and injuri li Lue vicinity of its road, con occasioned by its order, wlu reafter given notice ot rot extend to acts of , . _ - ..I '- person co; ;)erform a certain contra' nd servant, or employee - le. The provisions of st ration, or th»' As ler, we KNOWLEDGE OF AGENT. 293 it to have been for some purpose, and that when they are omitted, it was not the intention of the legislature that the}' should be in- cluded. We think, therefore, that the corporation is not to be held re- sponsible under this section for the torts of contractors or the serv- ants of contractors. (The remainder of the opinion is devoted entirely to the question as to whether, in fact, the road had been built outside of the loca- tion, and to determine this question the case was ordered to stand for trial.) ^ Section 3. — Notice to and Knowledge of Agent. FOLLETTE v. THE MUTUAL ACCIDENT ASSOCIATION. 1892. Supreme Court of North Carolina, iio N. C. 377. Avery, J. — Though, in some of its features, there are slight differ- ences between the case presented by this appeal and that considered when a new trial was awarded to the plaintiff at September term, 1890 (107 N. C. 240), the main question involved is the same. Under the guise of a second appeal, the defendant company insists that this court shall review and overrule its former decision, as if it were a rehearing. There is no branch of the law as to which, in all of its ramfications, there is so much conflict in the rulings of 'See Farmer v. Kearney (La.), 39 So. 967, discussed in 19 Harv. Law Rev. 540. "The distinction on which all the cases turn is this : If the person employed to do the work carries on an independent employment and acts in pursuance of a contract with his employer by which he has agreed to do the work on certain specified terms, in a particular manner and for a stipulated price, then the employer is not liable. The relation of master and servant does not sub- sist between the parties, but only that of contractor and contractee. The power of directing and controlling the work is parted with by the employer and given to the contractor. But, on the other hand, if work is done under a general employment, and is to be performed for a reasonable compensation or for a stipulated price, the employer remains liable, because he retains the right and power of directing and controlling the time and manner of executing the work, or of refraining from doing it. if he deems it necessary or expedi- ent." Bigelow, C. J., in Brackett v. Lubke, 4 Allen (Mass.) 138, 140. "The inability of the master to shift the responsibility connected with the custody of dangerous instruments, employed in his business, from himself to his servants entrusted with their use, is analogous to, and may be said to rest upon the same principle as that which disenables him from shifting to an independent contractor liability for negligence in the performance of work which necessarily tends to expose others to danger, unless the work is care- fully guarded. It seems by the great weight of authority and reason that this cannot be done." Minshall, C. J., in Railway v. Shields, 47 Ohio St. 387, 393. 294 LIABILITY TO THIRD PERSONS. the various courts of appeal, and so great a diversity of opinion amongst respectable text-writers, as that governing the rights and liabilities of insurers. When the universal custom was that the underwriter sat in his city office and issued policies of insurance, relying solely upon the representations of the applicant for information, whether as to his own physical state or as to the value, condition and surroundings of his buildings, the insurer would have dealt at a great disadvant- age with the unreliable class of his customers, if a contract procured b}^ false representations had not been declared fraudulent and void, or if the disregard of stipulations intended to insure the observance of ordinary care in the habits of a person, or the use of a building, had not been held sufficient to defeat a recovery upon the death of the person or the destruction of the property insured. But when, in the new order of things, the active competition between compa- nies brought to every man's door a soliciting agent, furnished with instruction and advised as to his duty by the best trained business men and ablest lawyers in the country, the shrewdest and most un- scrupulous of applicants could hope to get no advantage, and the untrained or uneducated among the number labored under a decided disadvantage in answering questions, not always comprehended in all of their bearings and in receiving subsequently from its chief office, in a distant city, the contract of the company, limiting its own liability and imposing new duties upon the insured by means of conditions never heard of before the issuing of the policy, and often never read, or imperfectly understood afterwards. Ubi eadam ra- tio, ibi idem jus. When custom reverses the position of the parties, it would be strange if the law should undergo no modification. The local agent of the defendant company testified that, with a knowledge of the deafness of the plaintiff, he filled out his appli- cation for an accident policy, signed his own name on the back of it, and forwarded it to the principal office in New York. The pol- icy came in due course of time and was delivered to the plaintiff, who paid all of the premiums assessed against him, until he was so seriously wounded in his arm by the accidental discharge of a gun, in the hands of a friend, as to make amputation necessary. The company took a receipt by way of compromise, which, under the findings of the jury, is not evidence of payment, and, as there w^s no exception to the rulings or charge involving the question of payment or satisfaction, we are brought to the consideration of the leading point. In the application for membership is the following paragraph : "I have never had, nor am I subject to, fits, disorders of the brain, * * * or any bodily or mental infirmity, except had an attack of rheumatism six years ago." The defendant now contends that the representation by the plaintiff that he was free from bodily infirmity was false and ^95 tuted p ation. But the plaintiff, where re; ;^lication are admi'^^'' *■'• ■ •■ -'-'•■• fraudulent inteni ihe local a; ■ of the Stat .1, iippl'v..' V CU ■ of this coii. ie ear of a deal , ...,:..;.-..; K ..-.:, write for him a. time to be untrue, to a question in th; ■■ '' * "3 they fall uu. . nd, stand aside a aiiow It. witii the premiums in its ■: account of a statement known by the ■■: prepared it for the applicant's signature, luced the courts to ^ard the underwriter ag ■ s as to facts within the peculiar or exclusive kr v.ijis no longer exists, when the agent of the insu. ... .d. has as full knowledge of the truth or falsity of an ired by him as has the insured. Cessantc ratione, Where the local agent of a company has actual falsity of an an- - lion in the applic tor the insured, ..e of the agent v. . 'Hipany, and it v allowed to avoid thu rriiid of false wan ,. . , Am. & Fn- F,;. v i§ 140-143; -^ ''^'- ?'.S 497-501; D- id., 93 N. C 240 - --- • '■ ]n<5. Co.. S4 Cal J = 1, 71^111. ' \ Wis. ;:•' /aiver or works an c " "■ :^ ufjon the ] it is. that in 1 and ' i: . its vn' as a g . -^ 0.497.' . - . ig with the plaintiff, th. - -unreasonable to presui led to affirm that to I. natent dr' V. Ins. LTABILII ie text-\^ V\ nti\ tjie universal age with the u. by false retn-- or if the <' nf ordinal had not i The loi .iid ail never had, r T any bodilv rheumatism six years i' The defendant no^\ plaintiff that he was . \, of opini ^ ung the rights a; .ler writer sat in his civing solely upon the it ion, whether as to his on and surroundings of ' I at a great disadvant- mers, if a contract procured , declared fraudulent and void, .tended to insure the observance ;>erson, or the use of a building, feat a recovery upon the death jl the property insured. But when, active competition between conipa- or a soliciting agent, furnished with lis duty by tht- ]w>* trained business country, the t and most un- hope to gel li- ...vantage, and the , the number labored under a decided nnprehended in from its chief alracL oi liiC uuuipany, limiting its duties upon the insured by means of : the issuing of the policy, and often erstood afterwards. Ubi eadam rn- ■ \ reverses the position of the partii should undergo no modification. idant company testified that, wit); tift, he filled out his appli- - own name on the back of : office in New York. The pol- ! was delivered to the plaintiff, •ed against him, until he was e accidental discharge of a guu, ike amputation necessary. The e. which, under the ", and, as there was if.volvjng the question ■ : ■ to the consideration of ^ lembership is the followri > abject to, fits, disorders of the br.". ■'■■■-■•■' ^ ■ •^ u^^ an attack iiie representation by tlie .y infirmity was false and \ KNOWLEDGE OF AGENT. 295 fraudulent, and constituted a material inducement to the defendant to issue the policy. Ordinarily, the defendant could avoid the per- formance of the contract by showing the falsity of a material state- ment in the application. But the plaintiff, where representations con- tained in the application are admitted to be untrue, may rebut the presumption of fraudulent intent arising from such admission by showing that the local agent of the company, with full knowledge of the falsity of the statement, entered the answers of the insured and forwarded the application, approved by his own endorsement. We cannot give the sanction of this court to the doctrine that a local agent may scream into the ear of a deaf person solicitations to apply for an accident policy, write for him an answer, which he knows at the time to be untrue, to a question in the application, pro- cure the policy, receive the premiums as they fall due, and when the insured becomes prostrate from a wound, stand aside at the bidding of the principal and allow it, with the premiums in its coffers, to avoid the contract on account of a statement known by the agent to be false when he prepared it for the applicant's signature. The reason which induced the courts to guard the underwriter against misrepresentations as to facts within the peculiar or exclusive knowl- edge of applicants no longer exists, when the agent of the insurer, on the ground, has as full knowledge of the truth or falsity of an application prepared by him as has the insured. Ccssantc ratione, cessat et ipsa lex. Where the local agent of a company has actual knowledge of the falsity of an answer to a question in the application which he writes for the insured, the knowledge of the agent will be imputed to the company, and it will not be allo\ved to avoid the con- tract on the ground of false warranty, i Am. & Eng. Ency., 333 ; I May on Ins., §§ 140-143; 2 id., §§ 497-501; Dupree v. Ins. Co., 92 N. C. 417; id., 93 N. C. 240; Hornthal v. Ins. Co., 88 X. C. 73 : Fishbeck v. Ins. Co., 54 Cal. 422 ; Eggleston v. Ins. Co., 65 Iowa 308; Ins. Co. V. Fish, 71 111. 620; Mullen v. Ins. Co., 58 Vt. 113; Shaffer v. Ins. Co., 53 Wis. 361 ; Ins. Co. v. McCrea, 8 Lea (Tenn.) 513- It is not material whether we say that the conduct of the local agent amounts to a waiver or works an estoppel on the insurer, as the authorities are in conflict upon the point, i Alay, supra. No. 143 ; 2 id. No. 498. Certain, it is, that in such cases the knowledge of the agent is imputed to the principal and "to deliver a policy with a full knowledge of facts, upon which its validity may be disputed, and then insist upon those facts as a ground of avoidance, is to attempt a fraud." 2 May supra. No. 497. The agent necessarily dis- covered, while negotiating with the plaintiff, that the latter was deaf ; and it would be as unreasonable to presume that both the agent and the applicant intended to affirm that to be true which they knew to be false, as that such a patent defect as the loss of an eye in a horse did not exist. Leslie v. Ins. Co., 5 T. & C. (N. Y.), 296 LIABILITY TO THIRD PERSONS. 193; Ins. Co. V, Mahone, 21 Wallace 152; Brown v. Gray, 6 Jo. 103 ; Fields v. Rouse, 3 Jones 72. We do not propose to go behind the verdict and the instruction upon which it was founded, and avoid the reaffirmation of the prin- ciples announced on the former hearing of this case by determining what is a bodily infirmity, since, conceding deafness to come under such designation, we think that there was no error in the rulings of the court below. As alread}^ intimated, it is immaterial whether we declare that the agent by his conduct waived objection to the inaccurate statement, or that by writing it down, or having full knowledge of the real truth of the matter, his conduct operated to estop the company, since, in view of what occurred, when the appli- cation was made out, and before, the avoidance of liability under the contract, because of the infirmity known by the agent to exist, would be fraudulent and unjust. There is no error. Affirmed.^ ROSS AND WAITE, Executors, v. HOUSTON and CANNON. 1853. High Court of Errors and Appeals of Mississippi. 25 Miss. 591. Mr. Justice Yerger delivered the opinion of the court. James C. Alderson, by his agent, George West, became the pur- chaser at a sale made by virtue of an execution against Nathaniel Anderson of a tract of land. This land he afterwards sold to the defendant, Houston, by a quitclaim deed, Houston being informed of the manner in which Alderson acquired his title. The defendants, 'See The Distilled Spirits, 11 Wall. (U. S.) 356. It was held in Brown v. Columbus, 75 Atl. 917, that one who purchases realty through an agent will be charged with the knowledge of the agent re- garding the condition of the title. In Jackson Co. v. Schmid, 124 S. W. 1074, a statute provided that any dramshop keeper selling liquor to any habitual drvmkard after receiv- ing notice from the wife of the drunkard not to sell, must forfeit a certain sum of money to the wife. It was held that notice given by the wife to the agent of a dramshop keeper makes the latter liable under this statute. The agent's knowledge of the vicious character of domestic animals is suf- ficient to make the owner liable for injuries caused by the animals. Lynch V. Kineth. 36 Wash. 368. In Neal v. Hardware Co., 122 N. Car. 104, the court said that the principal is bound by knowledge of facts which the agent could have known by the use of ordinary care. "The notice to the agent, to operate as constructive notice to the principal, must be such as would reasonably charge the agent, on failure to repeat, with breach of faith and duty to his employer, and therefore the law will, under such circumstances only, presume he has communicated his knowledge to his principal." Ray, J., in Day v. Wamsley, 23 Ind. 145, 147. at they :V a nnitclaiTn H( !ie facts of the case ; yet t; Aldersor '-■ ■-audulenl as ' son, buv d by him f. ,, ciiat when the 'de, he was not . :' it by deed to A. J- : agent by whom A 11 iiad notice when he made the purchas' iid not own the land, and that he had ii.. i.w-,. not appear, that Alderson knew these facts ->n ; or that West, the agent, by wliom he pure); ted to him the knowledofe be had received c, notice had ever i at any time ' n-vn ^hr^ land. -ttd to A. F. .,'--Vll-, W'lib ':\i.r< and though , that the h; :h whom he 1 y know. o Hopio i.ner of ' will charge him with knowle ';itl notice. as a principle of law, foui -Ct tioii. o an agv or qualiiv ■ . i., ts to the princip: 206 LIABILITY TO THIRD PFRSON?. vT.-.h 103 ; Fields v. We do not ipon which it Ro: propi. ,-A was fo SUCi. the we declare ti: knoy estoi cat it. '"iray, 6 j.. ...i .,1V instruction rniation of the prin- . ' V ■-■rmining . c under .15 no error in the rulings of d, it is immaterial whether luct waived objection to the ...ling it down, or having full matter, his conduct operated to 'f what occurred, when the appli- the avoidance of liability under aiity known by the agent to exist, There is no error. lOUSTON AND CANNON. .;ORS AK.i Miss. 59 i, F Mississippi. the manner in w- *SeeT) Tt w3<; ed the opinion of the court. -. George West, became tin? pm- i an execution against Nathaniel This land he afterwards sold to the !"im deed, Houston being informed ot quired 1 The defendants, ^U. S.) 35^. 75 All. 917, that one who purck ; J with the knowledge of the agent rt ^^^ 1074, a statute provided t!"^ habitual drunkard after rev ', i'V. ii.i.-: fiirfeit a certain .,.;.j. wife to the agent tutc. stic animals i? ■ .e animals. L., ; t said that the prin' I'.id have known by tht • •• - notice to the •^•■^'■'"■ -' faihire to re iorc the law w^ . i.icated his knowledge '■• ■45> H7- KNOWLEDGE OF AGENT. 297 who are sued upon a writing obligatory given for the purchase- money, resist payment upon the ground that they were deceived and defrauded by Alderson in the sale of the land, while they admit that Alderson only sold by a quitclaim deed, and that they knew he had obtained title to the land by virtue of an execution sale of it, as the property of Nathaniel Anderson ; and that they took upon themselves the risk of the validity and legality of the execution, and the sale un- der it, so far as the proceedings connected with the sale disclosed upon their face the facts of the case ; yet they say, that the sale under the execution to Alderson was fraudulent and void, which fact was known to Alderson, but concealed by him from them. It appears from the pleadings and proof, that when the sale under the execu- tion against Anderson was made, he was not the owner of the land, but had previously sold and conveyed it by deed to A. F. Hopkins & Co. It also appears, that West, the agent by whom Alderson pur- chased the land, had notice when he made the purchase for Alderson that Anderson did not own the land, and that he had no interest in it. But it does not appear, that Alderson knew these facts when he sold to Houston ; or that West, the agent, by whom he purchased, ever communicated to him the knowledge he had received on the subject; or that notice had ever been given to him at any time, that Anderson did not own the land, and that it belonged to A. F. Hop- kins & Co. On this state of facts, it is contended by Houston and Cannon, that although Alderson did not have notice in fact, the notice given to West, the agent, was notice in law to Alderson of the title of Hopkins & Co. ; and though he did not actually know, when he sold to the defendant, that the land belonged to Hopkins & Co., yet, as the agent through whom he became the owner of the land did know this fact, the law will charge him with knowledge of all the facts of which his agent had notice. It is certainly true as a principle of law, founded upon reason and sound policy, that wherever a party purchases property through the agency of another, notice, communicated to that agent during the progress of that negotiation, of the rights of third parties to the property, will be held, in any controversy with such third parties in relation to it, as equivalent to direct notice to the principal. 2 Sugd. on Vend. 215. So, too, notice given to an agent employed to purchase property of any defect in the title or quality of the property, will be equiva- lent to notice of those facts to the principal, in any controversy that may arise between him and the vendor in relation to the property. We think it may also be fairly deduced from the adjudged cases, and from principle, that if a party employ an agent to sell prop- erty, and notice be given to that agent of such defects in the title or quality of the estate, which if known to the principal, it would have been his duty to disclose to the purchaser, it would be the duty of 298 LIABILITY TO THIRD PERSONS. the agent also to disclose them to the purchaser ; and in the event of his failure to do so, that the purchaser might be relieved from the contract in the same manner and to the same extent, that he would have been relieved, if the principal had known the facts, and made the sale without disclosing them ; and this, too, although the principal, when his agent made the sale, was ignorant of the defects, the title, or quality of the estate. This is certainly as far as any adjudged case, or any sound legal principle, would warrant the court in extending this doctrine of implied notice. But the case before us does not fall within the operation of either of the foregoing rules. On the contrary, the attempt is now made to extend the doctrine still further, and we are asked to declare not only, that notice given to an agent to buy property shall effect the conscience of the principal in every matter touching the purchase of the property, and the title thereby acquired, so far as the rights of third parties exist in relation to the property, but also that knowl- edge of defects in the title or quality of the estate thus possessed by an agent employed to purchase, shall be considered in law as made known, though in fact they were not made known, to the prin- cipal, so as to affect his conscience in any future sale he might make of the property. We do not believe either the law or sound policy will warrant such an extension of the rule. So far as the rule has heretofore been established, that notice to the agent shall be treated as notice to the principal, we are willing to enforce it, as a rule of sound policy, although in individual cases it may sometimes operate harshly. But we are not willing to extend it further than it has heretofore been carried ; and we are, therefore, of opinion, that if Alderson, at the time he sold to Houston, did not know in fact that he had acquired no title to the land by the purchase under the execution sale against Anderson, because the land be- longed to A. F. Hopkins & Co., and not to Anderson ; the notice of those facts given to West, the agent, by whom he purchased the land, will not be treated as implied notice, so as to affect his con- science in the subsequent sale made by him of the property, and thereby entitle the purchaser to insist upon an avoidance of his con- tract. As the circuit judge laid down the law differently, we must re- verse the judgment, and remand the cause. ^ ' Compare Sec. Nat. Bk. v. Currcn. 36 la. 555. )::;OWLEDG! ii'- PFyKSVLVAXIA Thai SI ii-/ f,-iC IS or alienee. > not in (lis; . :d in McCar vealth, 5 justice at nisi pri :, 6 Plnia, R. yo, that this liabihty is 10 ^ ays f. r tlir veArrh, and does not extend to 1 "*■ •■* ■ •" all viosv.-, L.;u of the fact that the search in •St of the conveyancer of the defendants, was >y the ov ' r that he money .^ts. ard sed, anMr-e of the .n of th i>criiect! \j, not ', i'> ]i"'T.', :k, 8AV, 3rackei -' ''^■•- '. it is a n... --.v- L.- -n .0 man can be supposed r former occurrences, an-i in hi? mine] at the time, of the rule -err hc^t. :^r ' of tne cy that :... ^,^- ^al. Notice to i ty-four h'- - ; went V- ' [ lABJL! u the evv d from •hat he ,: I, we are asked to declare not n!v, ' CO buy property shall effect the c U.J' matter touching the purchase "■ the acquired, so far as the ri;^hti '■.. Tiie property, but also that knowi quality of the estate thus possessed ;, shall be considered in law as ere nr^t -rade known, to the prin- nce in a • he might make r sound policy will warrant ' been established, that notice ^ to the principal, we are willmg ■ > y, although in individual cases it But we are not willing to extend it !)een carried; and we are, therefore, "t ' the time he sold to Houston, did not kno\v At . ' "o title to the land by the purchase under th Anderson, because the land be- .1 not to Anderson; the notice of ent, by whom he purchased the ; notice, so as to affect his cr ': by him of the property, a* -on an avoidance of his con- circuit lifFerently, we must iudsnmei KNO\\XEDGE OF AGENT. 299 HOUSEMAN V. GIRARD MUTUAL BUILDING AND LOAN ASSOCIATION. 1876. Supreme Court of Pennsylvania. 8i Pa. St. 256. Sharswood, J. — This was an action instituted in the court below by the defendants in error to recover from the plaintiff in error, who was formerly recorded of deeds for the county of Philadelphia, dam- ages for a false certificate of search issued by him, or by his author- ity. That such a certificate was issued false in fact; that it was ordered and paid for by the defendants, and that in consequence they suffered damages, were points not in dispute. That the recorder is prima facie liable to respond in damages for such false search, has been settled in McCaraher v. Commonwealth, 5 W. & S. 21, and is no longer an open question. It was decided by the present chief justice at nisi priiis, in Com- monwealth v. Kellogg, 6 Phila. R. 90, that this liability is to the party who asks and pays for the search, and does not extend to his assigns or alienee. The contention here all grows out of the fact that the search in this case, by the request of the conveyancer of the defendants, was ordered and paid for by the owner of the premises, in order that he might obtain a loan of money on mortgage from the defendants, and the certificate was so used, and the money so obtained. It is urged, that by the employment of the owner as the agent for this purpose, the defendants are affected with this knowledge of the existence of the mortgage, which was omitted in the certificate. This is a very familiar principle and well settled. But it is equally well settled that the principal is only to be affected by knowledge acquired in the course of the business in which the agent was em- ployed. This limitation of the rule is perfectly well established by our own cases, and it is not necessary to look further : Hood v. Fahnestock, 8 Watts 489 ; Bracken v. Miller, 4 W. & S. no; Martin v. Jackson, 3 Casey 508. It is a mistake to suppose that it depends upon the reason that no man can be supposed to always carry in his mind a recollection of former occurrences, and that if it be proved that he actually had it in his mind at the time, the rule is different. It may support the reasonableness of the rule to consider that the memory of men is fallible in the very best, and varies in different men. But the true reason of the limitation is a technical one, that it is only during the agency that the agent represents, and stands in the shoes of his principal. Notice to him is then notice to his principal. Notice to him twenty-four hours before the relation com- menced is no more notice than twenty-four hours after it had ceased would be. Knowledge can be no better than direct actual notice. It was incumbent on the plaintiff" to show that the knowledge of the 300 LIABILITY TO THIRD PERSONS. agent, to use the accurate language of one of our cases, "was gained in the transaction in which he was employed.'' There was not only no evidence of this offer by the plaintiff, but it was plain that it had been gained before, and in an entirely different transaction. It is not necessary to consider in this view of the matter whether the al- leged agent was really such, or only the servant or clerk of the con- veyancer. It is urged that the conveyancer of the defendants, in the employ- ment of the owner, who was the applicant for the loan, and inter- ested, therefore, to obtain clear searches, was guilty of negligence, which is imputable to his constituents, and will, therefore, bar their recovery. But this is to maintain that a man is to presume fraud or forgery in one, whose character is good, and that if he does not he is prima facie negligent. When the scrivener received a clear certificate under the undoubted official seal of the recorder, he sure- ly was not bound to presume that a fraud had been committed on the recorder or his clerk, nor was there any evidence from which such fraud could be inferred. If there was no such presumption, neither would there arise any presumption beforehand, that the owner would succeed in corrupting or deceiving the clerk or servant of the plaintiff. Without some such presumption, how can it be said that it was prima facie evidence of negligence? that the owner was employed in the mere ministerial service of ordinary paying for and procuring the certificate? We are of opinion that the learned judge was right in directing a verdict for the plaintiffs below. Judgment affirmed.^ FAIRFIELD SAVINGS BANK v. CHASE. 1881. Supreme Judicial Court of Maine. 72 Me. 226. Writ of entry to recover possession of a certain parcel of land, described in a mortgage from John W. Chase to the plaintiff cor- poration, dated the tenth day of March, 1876, and duly recorded on that day. The defendant seasonably disclaimed as to one undivided half of the demanded premises, but claimed title to the other un- divided half. The plea was the general issue as to the undivided half claimed by the defendant. The defendant based his claim to one undivided half upon a deed from John W. Chase to him, dated the eighth day of March, 1876, but not recorded till the twenty- eighth day of March, 1876. The attorney who wrote and took the acknowledgment of both ^Accord: Bessemer, etc., Co. v. Jenkins, iii Ala. 135. -aftgage, It was not ck. ,^ 1 ..,■... 1- .... 1? PlirpOF-^ of c,; .T^ioc;f^f>n recordt .. for tl J a verrj ■ i'lstriu;- to a bank director or trustee, oi '■^•-■[ r>r,o <■..; ■,■,]:,,, officially or a^ ^.. operative as a dt ^^:.-r y.. ak ot L e^cT ■tion. Ir . ;;■! i\ nether the or clerk of the «.•• ft i^ V -aants, in the emp] for the loan, and inter- \as g'viilty of negligence ': will, therefore, bar ti: -"'I is to presume fr. '. VI that if he does > '.'-■■ scrivener received a clea; -on] of the recorder, he siii-e- h presumpti' hand, that ■ -lerk or serv; , how can it ? that the o\\ •rdinary paying i>-ht in fi •T T A c;f . parcel o i i:: 'je plaintiflF - i.'.ly reco- o one ur _ ;e to the other •^ to the undivi ed his clair; \vlcdgfment of both KNOWLEDGE OF AGENT. 3OI the deed and the mortgage, was at that time a trustee of the plain- tiff corporation. It was not claimed at the trial that any other offi- cer of the bank had any knowledge of the existence of the deed to the defendant, at the time of the execution or recording of said mortgage. The court, for the purpose of settling a question of fact, ruled, pro forma, that if the attorney, at the time of the execution of the mortgage, had knowledge that the deed had been executed and de- livered by John W. Chase to the defendant, this would be sufficient notice to the plaintiff corporation to overcome the legal effect of the fact that the mortgage was recorded before the deed, and that, if the jury should find that the attorney had such knowledge, they should return a verdict for the defendant. The jury, under this instruction, returned a verdict for the defendant. To the foregoing instructions the plaintiff excepted. Peters, J. — A notice to a bank director or trustee, or knowledge obtained by him, while not engaged either officially or as an agent or attorney in the business of the bank, is inoperative as a notice to the bank. If otherwise, corporations would incur the same liability for the unofficial acts of directors that partnerships do for the acts of partners; and corporate business would be subjected oftentimes to extraordinary confusion and hazards. Carry the proposition, that notice to a director is notice to the bank, to its logical sequence, and a corporation might be made responsible for all the frauds and all the negligences, pertaining to its business, of any and all its directors not officially employed. Any one director would have as much power as all the directors. A single trustee or director has no power to act for the institution that creates his office, except in conjunction with others. It is the board of directors only that can act. If the board of directors or trustees makes a director or any person its officer or agent to act for it, then such officer or agent has the same power to act, within the authority delegated to him, that the board itself has. His authority is in such case the authority of the board. Notice to such officer or agent or attorney, who is at the time acting for the corporation in the matter in question, and within the range of his authority or supervision, is notice to the corporation. Ab- bott's Trial Ev. 45, and cases in note ; Fulton Bank v. Canal Co., 4 Paige 127; La Farge Fire Ins. Co. v. Bell, 22 Barb. 54; National Bank V. Norton, i Hill (N. Y.) 578; Bank of U. S. v. Davis, 2 Hill (N. Y.) 454; North River Bank v. Aymar, 3 Hill (N. Y.) 263; Ins. Co. V. Ins Co., 10 Md. 517; Bank v. Payne, 25 Conn. 444; Far- rell Foundry v. Dart, 26 Conn. 376 ; Smith v. South Royalton Bank, 32 Vt. 341 ; Washington Bank v. Lewis, 22 Pick. 24 ; Commercial Bank v. Cunningham, 24 Pick. 270 ; Housatonic Bank v. Martin, i Met. 308 ; I Pars. Com. ''yy ; Story Agen., § 140 ; South. Law Rev. N. S. vol. 6, p. 45 ; Hoover v. Wise, 91 U. S. 308. ^\nother ques- tion arises in the case before us. It appears that Brown's knowl- 302 LIABILITY TO THIRD PERSONS. edge of a previous conveyance was acquired anterior to his employ- ment by the bank, if employed by the bank at all, and not during or in the course of his employment on their account. The question is, whether a principal is bound by knowledge or notice which his agent had previous to his employment in the service of the principal. Upon this question the authorities disagree. The negative of the question has been uniformly maintained in Pennsylvania and some other of the states. In the late case of Houseman v. The Building Association, 8i Penn. St. 256, it was said, that "notice to an agent twenty-four hours before the relation commenced is no more notice than twenty-four hours after it has ceased would be." But we think, all things considered, the safer and better rule to be that the knowl- edge of an agent, obtained prior to his employment as agent, will be an implied or imputed notice to the principal, under certain limi- tations and conditions, which are these : The knowledge must be present to the mind of the agent when acting for the principal, so fully in his mind that it could not have been at the time forgotten by him ; the knowledge or notice must be of a matter so material to the transaction as to make it the agent's duty to communicate the fact to his principal ; and the agent must himself have no personal interest in the matter which would lead him to conceal his knowl- edge from his principal, but must be at liberty to communicate it. Additional modification might be required in some cases. These elements appearing, it seems just to say that a previous notice to an agent is present notice to the principal. The presump- tion, that an agent will do what it is his right and duty to do, having no personal motive or interest to do the contrary, is so strong that the law does not allow it to be denied. There may be instances where the rule operates harshly ; but, under the rule reversed, many frauds could be easily perpetrated. Of course, the knowledge must be that of a person who is executing some agency, and not acting merely in some ministerial capacity, as servant or clerk. For instance, if in the present case Brown had merely taken the ac- knowledgment of the deed to the bank, or had transcribed the deed as a clerk or copyist, such acts would not have imposed a duty to impart his knowledge to the bank. But if employed to obtain the title for the bank by a deed to be drawn by hitii for the purpose, that would place the transaction within the rule. Jones IMort. (2nd ed.), § 587. Notice of the existence of an unrecorded mortgage upon the property to an officer employed to make an attachment, is notice to the plaintiff. Tucker v. Tilton, 55 N. H. 223. In the case before us. Brown, it is claimed by the defendant, was employed by the bank to make an instrument to convey a title from a person to the bank. Brown knew that such person had not the title. It would be his duty to so inform his client. He would be likely to do so. He had no motive not to do it. The law conclusively presumes that he did inform him. We think such a case comes reasonably within the rule, thouerh it is \j 1 ' e the Heed igh the earlier ,., of the United S...... - . sustained bv ,-•, preponderance of op: thr • has been discussed, p- vorwood, 17 C. B. (N. S. 6 687; The Distilled Spinls, ii ' Bi ; :;:; N. H. 148 ; H?-f V. The Bank. _ \\ , 391 ; \ Bank v. Cu 4;, . .. . -iverse, 1, >. 11; Hoppc-... . \\ .iwrence v. Tuck. le 195 ; Jones Mort. ■ i: following sectioi-^ .v<^: notes. Many other 'i' r.he questions, will be found cited and revie '■\ the Amer. Law. Reg. (Phila.) New Sene I of this rule to the facts of this case, requires the -. aside. S. S. Brown, while a trustee of the Fair- ; Bank, had actual knowledge that John W. Chase had in land to Isaac T'^ • - t.-. •..,- that fact, he as an at- •z and took the . ;f a morteae^e of the ! John W. ( ,k-, and ' \st. The q'T"' " the brj' -r deed .: the kr . : the le. ..-.c thf- -' ■ ■ .. ... ,.,. was, at Upon this question has othet- .1" il' As?. tvver thar to make an i; uLive lu- n him. not during . ;. ine question is, or notice which his I vice of the princi; The negative of I'ennsylvania and sf J ouseman v. The Building, .lid, that "notice to an agent oninienced is no more notic'.' 'cd would be." But we think. ter rule to be that the knowl- js employment as agent, will Uie principal, under certain limi- ihese : The knowledge must be vhen acting for the principal, so have been at the time forgotten must be of a matter so material e agent's duty to communicate the !•* must hitnself have no personal '■'■ conceal his knowl- to communicate it be required in some cases. . ■X seems just to say that a previc;,. otice to the principal. The presump- t it is his right and duty to do, having to do the contrary, is so strong that •>e denied. There may be instances ■ ; but, under the rule reversed, many : Of course, the knowledge must :ving some agency, and not acting ..city, as servant or clerk. For ' -^-r'n had merely taken the ac- or had transcribed the deed u;d not have imposed a duty to But if employed to obtain the awn by him for the purpose, that I he rule. Jones Mort. (2nd ed.). ; .an unrecorded mortgage upon -^ make an attachment, is noti'^- . H. 223. In the case bef nt, was employed by the b^inv :• from a person to the bank. !; the title. It would be ' ! be likely to do so. He i ., i t.sively presumes that he did .^ '.-ea^oniiMv within the rule. KNOWLEDGE OF AGENT. 303 though it is not so marked a case as it would be if Brown had been employed by the bank to ascertain if the grantor had the title, and if he had them to make the deed. The general rule or principle touching this case, guarded by the cautions and conditions stated, is supported by the later English cases, although the earlier English cases went the other way; is also the law of the United States supreme court; and is, we think, sustained by a preponderance of opinion in the state courts where the question has been discussed. Fuller v. Bennett, 2 Hare 394; Dresser v. Norwood, 17 C. B. (N. S.) 466; Rolland v. Hart, L. R. 6 Ch. App. 687; The Distilled Spirits, 11 Wall. 356; Hovey v. Blanchard, 13 N. H. 148; Hart v. The Bank, 33 Vt. 252; Suit v. Woodhall, 113 Mass. 391; National Bank v. Cushman, 121 Mass. 490; Anketel v. Converse, 17 Ohio St. 11 ; Hoppock v. Johnson, 14 Wis. 303 ; Lawrence v. Tucker, 7 Maine 195 ; Jones Mort. (2nd ed.), § 584, and following sections and notes. Many other cases, on both sides the questions, will be found cited and reviewed in a learned article in the Amer. Law. Reg. (Phila.) New Series, vol. 16, p. I. An application of this rule to the facts of this case, requires the verdict to be set aside. S. S. Brown, while a trustee of the Fair- field Savings Bank, had actual knowledge that John W. Chase had deeded certain land to Isaac Chase. Knowing that fact, he as an at- torney wrote and took the acknowledgment of a mortgage of the same land from John W. Chase to the bank, and the mortgage was recorded first. The question was whether the bank had knowl- edge of the prior deed when the mortgage was taken. The pro forma ruling that the knowledge of Brown was sufficient notice to the bank to overcome the legal effect of the fact that the mortgage was recorded before the deed, irrespective of the further question whether Brown was, at the time of making the mortgage, acting as an attorney in the business and employment of the bank or not, was erroneous. It is contended that the evidence shows that Brown was acting for the bank. But the fact being at least questionable, it should have been passed upon by the jury. Exceptions sustained.^ '^Accord: Constant v. Universitj' of Rochester, in N. Y. 604; Brothers v. Bank of Kaukauna, 84 Wis. 381 ; Snyder v. Partridge, 138 111. 173, 184. 304 LIABILITY TO THIRD PERSONS. JENKINS BROS. SHOE CO. v. RENFROW & CO. 1909. Supreme Court of North Carolina. 151 N. C. 323. Appeal from Webb, J., May term, 1909, of Forsyth. The plaintiff corporation sued the defendants, as partners, to recover an amount due it for goods sold and delivered. The de- fendant T. J. Renfrow alone answered and contested the plaintiff's right to recover against him. The plaintiff, in its complaint, al- leged "that on 2'j, May, 1907, it sold and delivered to the defend- ants a lot of shoes, of the value," etc. The contesting defendant denied his liability, on the ground that the partnership between him and his co-defendant had been dissolved on March 28, 1907, and notice of dissolution had been published in a newspaper published in Wilkesboro, N. C, where the partnership did business, the plain- tiff doing business in Winston-Salem, and that notice of such dis solution had been given to W. N. Horn, the traveHng salesman of plaintiff, its agent who had taken the order sued upon and all other orders from defendant for plaintiff. It was admitted by the de- fendant that the partnership existed up to March 28, 1907, and was formed in 1904; that his co-partner, G. V. Renfrow, his son, had the entire management of the business and did all its buying and selling ; that he lived in Mecklenburg county ; that when the partner- ship was dissolved he took from his co-partner his note, secured by a mortgage on certain described lands in Mecklenburg county. The plaintiff offered evidence of the continued advertisement in the paper stated by G. V. Renfrow & Co. for some months after the alleged dissolution, and denied it had any notice of the dissolution at the date mentioned in the complaint. It further appeared in evidence that the salesman of the plaintiff, Horn, took the order from G. V. Renfrow on April 4, 1907, but it was subject to acceptance by the plaintiff. The plaintiff's salesman admitted he received notice of the dissolution before May 15 ; that it was within his duty to notify plaintiff when he received notice of dissolution of partnerships who were dealing with it, and he sometimes received money from cus- tomers when they offered it. It was in evidence that the agent, Horn, was notified on April 4 of the dissolution, but this was de- nied by him. His Honor charged the jury that unless the notice of dissolution was given to the agent, Horn, on or before April 4, no subsequent notice would avail the defendant. The defendant ex- cepted. The jury answered the issue of indebtedness in favor of the plaintiff. From the judgment rendered upon the verdict the de- fendant T. J. Renfrow appealed to this court. Manning, J. — After stating the case : If Horn was such an agent of the plaintiff that notice to him would be imputed to the plaintiff, then we think His Honor was in error in restricting the time at which the notice of the dissolution should have been given, in order -.OVVLEDGE OF AGEN f . 305 ifiding \i\ron his principal, the ph : "on or \pril 4." While the order '''"- *'''^ • t-il'->i) on April 4, it was made - - ' The acceptance ti i-u- !>;.ut v\ , .:^oods on Ala\ -^7, and in no otht ;e and deliv* we must cor , (leading". T!v ubLuicti, he defendaii; .... .jo asked . . . led he had 1 .he withdrawal of the <^ivAV from the w.-.ii^.ciship before May 15, ai!v< Lhe agent of the plaintiff, with the same scope and . as theretofore. Agency, § y2i,4lit\e learned author deduces the f ol- die authorities : "The law imputes to the • with all notice or knowledge relating to the .ncy which the agent acquires or obtains while : and within the scope of his authority or whicit w lave acquired, and which he then had in mind, or luired so recently as to reasonably warrant the as- still retained it. Provided, however, that such Ige will not be imputed ( i ) where it is such as it y not to disclose, and (2) where the agent's rela- t-matter or his previous conduct render it certain lisclose it, and (3) where the person clair"-'»'" ^'^^■ ce, or those whom he represents, Colluded defraud tlit ' al." There is no ev . it within ar exceptions named in e rule. This v,ourt, in Straus - with approval this principle, as . 637; .3 L. R. A., p. 563: "I. ' - :ie to his principal informatinr, iin the scr>pe of his agenc} lOtice to the principal it 1 i h:? ough his duty had been :", •:d.' id, 64 S. E. .^^.. 1 was such an agent that n > u the plaintiff, then, under the 'r plaintiff had notice of t: ow from the firm, and \' ly 6 and 15, as fixed I • »r the goods ordere 1 Chan. 16, it is heUl ')f thp dissolution oi IVKINK.VS- 3^4 JENKINS BROS. SH( •909. Supreme C Appeal from W The plaintiff co recover an amour; fendant T. J, Rei to recov "that 01 antij a lor denieci hi and 1 Ren:, plainiuT. >y him. : lie jur; From tcrniaiu T. J. Rer Manning, J.— of the plaintiff tli then we think I' which the notice . ' orsyth. .Is. as partners, to .... delivered. The de- contested the plaintiff's ff, in its complaint, al- delivered to the defend- rhe contesting defendant Mie partnership between him cd on March 28, 1907, and ^ ..cd in a newspaper published -tnership did business, the plain- leni, and that notice of such dis Horn, the travehng salesman of he order sued upon and all other :i>". It was admitted by the de- il up to ]\Iarch 28, 1907, and was ■?r, G. V. Renfrow, his son, had •iness and did all its buying and ifv county ; that when the partner- -s co-partner his note, secured by ■ ;ds in Mecklenburg county. The rinued advertisement in the paper r some months after the alleged notice of the dissolution at the It further appeared in evidence rlorn, took the order from G. \". vas subject to acceptance by the ) admitted he received notice of ' it was within his duty to notify ■ solution of partnerships wlio s received money from cus- vas in evidence that the agent, ■be dissolution, but this was de- he jury that unless the notice of Horn, on or before April 4, •^'^■ defendant. The defendant t • ' ' ' ' i • hiess in favor of the the verdict the de- court. If Horn was such an agent 1 be imputed to the plaintiff, r in restricting the time at lid have been given, in order KNOWLEDGE OF AGENT. 305 to be binding upon his principal, the plaintiff, to the date "on or before April 4." While the order for the goods sued for was taken by Horn on April 4, it was made by Horn subject to the acceptance of the plaintiff. The acceptance of the order was signified by the shipment of the goods on l\Iay 2'j, and in no other way. The com- plaint alleged both sale and delivery on that day, and in our consid- eration of this appeal we must consider the plaintiff concluded by this allegation of his pleading. This allegation was distinctly presented to His Honor by the defendant, and instructions asked and refused. The agent admitted he had notice of the withdrawal of the defend- ant T. J. Renfrow from the partnership before May 15, and that he was then the agent of the plaintiff, with the same scope and ex- tent of authority as theretofore. In Mechem on Agency, § 721, the learned author deduces the fol- lowing rule from the authorities : "The law imputes to the principal and charges him with all notice or knowledge relating to the sub j ect- matter of the agency which the agent acquires or obtains while act- ing as such agent and within the scope of his authority or which he may previously have acquired, and which he then had in mind, or which he had acquired so recently as to reasonably warrant the as- sumption that he still retained it. Provided, however, that such notice or knowledge will not be imputed (i) where it is such as it is the agent's duty not to disclose, and (2) where the agent's rela- tion to the subject-matter or his previous conduct render it certain that he will not disclose it, and (3) where the person claiming the benefit of the notice, or those whom he represents, colluded with the agent to cheat or defraud the principal." There is no evidence in this case bringing it within any of the exceptions named in the pro- viso of the above rule. This court, in Straus v. Sparrow, 148 N. C. 309, quotes with approval this principle, as stated in Cox v. Pearce, 112 N. Y. 637; 3 L. R. A., p. 563: "i. The failure of an agent to communicate to his principal information acquired by him in the course and within the scope of his agency is a breach of duty to his principal ; but as notice to the principal it has the same effect as to third persons as though his duty had been faithfully performed." Mfg. Co. V. Rutherford, 64 S. E. 444. If, therefore, Horn was such an agent that notice to him was notice to his principal, the plaintiff, then, under the above authorities, it must follow that the plaintiff had notice of the withdrawal of the defendant T. J. Renfrow from the firm, and its dissolution be- fore May 15 — between May 6 and 15, as fixed by Horn. No credit had then been extended for the goods ordered on April 4. In Bis- ban V. Boyd, 4 Paige's Chan. 16, it is held: "If he (a former customer) was informed of the dissolution of the partnership im- mediately after the sale and while the goods remained in his own hands, undelivered, a court of equity would never permit him to re- 20 — Reinhard Cases. 3o6 LIABILITY TO THIRD PERSONS. cover for those goods against the former partners of the vendee." Notice of the dissolution is a rescission of the order. Goodspeed v. Plow Co., 45 Mich. 522. The correctness of these doctrines cannot be controverted. It cannot be consistent with any just conception of fair dealing to subject a retired partner to the payment of debts con- tracted after notice of dissolution of the partnership has been given to the creditor extending the credit. Such a creditor cannot as- sume the status of partnership to be unchanged when he has actual notice of a change imputed to him from the knowledge of his agent. Was Horn such an agent that notice to him was notice to his princi- pal? The evidence offered at the trial tends to show that Horn was a traveling salesman of the plaintiff, and defendants made all their purchases, extending over several months, from plaintiff through Horn; that he was the sole representative of plaintiff in the section in which defendants did business, and visited their place of business nearly every thirty days ; that he reported to plaintiff references given by new customers ; that he reported dissolutions of partnerships with whom plaintiff was dealing, and sometimes received payments for bills due, when offered him by merchants, but that he was not instructed to collect bills ; that he in a general way inquired about the condition of the business of those with whom he was dealing for plaintiff. In Cowan v. Roberts, 133 N. C. 629, this court held: "The notice should have been given to the plaintiffs or to some one of their employees who had charge of the credit department. The 'man,' the defendant, Redmond, found 'working on the books' ma}^ have had no duties connected with any department of the business, ex- cept to keep an account of the cash, so far as we know. Of course, if any salesman had been notified of the dissolution of the firm, and that salesman had afterward sold goods to Roberts, Redmond would not have been liable." In reviewing this decision in Straus v. Spar- row, 148 N. C. 309, Hoke, J., speaking for this court, said : "The decision, while eminently sound in principle, goes very far, cer- tainly on the facts of that particular case, in upholding a demand against a retired partner." A careful consideration of Cowan v. Roberts, supra, does not convince us that that decision militates against our holding that the evidence was sufficient to support a find- ing that Horn was a competent agent to receive notice, and that notice to him was notice to the plaintiff, his principal. Horn was, by his course of dealing and the scope and extent of his power, the medium of negotiations between plaintiff and defendant part- nership. The learned judge who tried this case seemed to be of this opinion, but erroneously, as we think, in view of the distinct allegation of the complaint, restricted the binding effect upon the plaintiff of the notice to him to the date of the order. The case has been made complicated and the decision more difficult by the variance between the proof and the allegation in apparently treating KNOWLEDGE OF AGENT. 307 April 4 as tlie day of the accepted order and the Hie propo- sition to buy became a contract of purchase anu 'jave not ' 'rion the other exceptions taken, as tl, ' r^ pre- the next trial. For the error pointed be a rial. CHRISTOPHER. ! ^TTl^RrMF Coi RT O i? 'MrW TFtv:-F.','. .JO , J.— iiic piamuii^ sueu ine ueienuani on a -■■• 'he sum of $349,68, dated January 3d, 1877, .iths after date, to the order of J. M. Scovel, and !. and by M. & J. S. Perrine. The note was discor on the 9th of January, 1877, ^^^l before maturity ; and n^e of the di*^'"'""""*' '■■''■'''■'! •■'■■ "^Tf' rr/^. 1'i < ii' fTi.'^i fji-m i-it "V T >; T 'lintiffs ha'."njg rcstea, wx aeTCiiaanr proposca vc prove inau was fraudulently obtained, and was without consideration. regarding the bank as a bona fide holder for full value be- '.rity, overruled the defense, and directed a verdict for the estion discussed here w^as the correctness of this rv''''y - idence offered was to show that the note was pr< ■ ''■ .ttomey of thr ^ ' M. & J. S. Perr': - . nt they helo r>ne Wilkin, orrine was one or ^n^ ixiembers of the ■-,. } id also one of the nine directors of tl'. . J:*au 4th of January that the note was obtainea by traud, as nted by the bank on the 9th. No other knowledge of if the consideration of the note was possessed by any ' :r of the bank. Perrine did r ""■ t!ie ; president, cashier or any o 'he 'ant contends th' dt therefore the older -mala fide. ie is that notice to an ag !i- al rule is not denied. T: ' •' ^ "orporation au i .. 1- on are not '• " business, v icii as the presid' ircctors 3o6 cover for those sroO' '"• lice of the dis I'iovv Co., 45 Mi. be controverted, fair deahng t: tracted after to the c; *~ume thr pai; r vendee." loodspeed v. -""=■5 cannot ption of » ciebts con- - been g;iven . .. . .ii. or cannot as- : • \Ann he has actual •wledg^e of his agent. .^: notice to his princi- iends to show that Honi , and defendants made all 1 montlis, from plaintiff lative of plaintiff ir -d visited their place ^rted to plaintiff •rtcd dissolutions , and sometimes ' y merchants, but ■n a general way lose with whom tne me' I var; . court held: "The to some one of their nt. The 'man,' ;o6ks' may have he business, ex- Kiiow. Of course, if ' .hon of the firm, and Redmond would : Straus V. Spar- •/ this court, said : "The :!'•. L'oes very far, cer- > Iding a demand )n of Cowan v. ccision nulitates ;. sun cuiuf to support a find- to receive notice, and that jal, Horn was, li of his power, endant part- . .o L.. ""'^ to be of distinct :|>on the 'he case aiiiicult by the r>arently treating m vie KNOWLEDGE OF AGENT. 307 April 4 as the day of the accepted order and the day when the propo- sition to buy became a contract of purchase and sale. We have not passed upon the other exceptions taken, as they may not be pre- sented at the next trial. For the error pointed out, there must be a New trial. FIRST NATIONAL BANK OF HIGHTSTOWN v. CHRISTOPHER. 1878. Supreme Court of New Jersey. 40 N. J. L. 435. Depue, J. — The plaintiffs sued the defendant on a note made by him for the sum of $349,68, dated January 3d, 1877, and payable three months after date, to the order of J. M. Scovel, and endorsed by Scovel, and by M. & J. S. Perrine. The note was discounted by the bank on the 9th of January, 1877, and before maturity; and the proceeds of the discount placed to the credit of the firm of M. & J. S. Perrine. The plaintiffs having rested, the defendant proposed to prove that the note was fraudulently obtained, and was without consideration. The court regarding- the bank as a bona fide holder for full value be- fore maturity, overruled the defense, and directed a verdict for the plaintiffs. The question discussed here was the correctness of this ruling. The evidence offered was to show that the note was procured by the fraud of the attorney of the firm of M. & J. S. Perrine, in settle- ment of a judgment they held against one Wilkin. Matthew Perrine was one of the members of the firm of M. & J. S. Perrine, and also one of the nine directors of the bank. He had notice on the 4th of January that the note was obtained by fraud, as is was discounted by the bank on the 9th. No other knowledge of the infirmity of the consideration of the note was possessed by any director or officer of the bank. Perrine did not communicate the information to the president, cashier or any of his associates in the directorship. The defendant contends that notice to Perrine was notice to the bank, and that therefore the bank took the paper with notice, or was a holder mala Ude. The general rule is that notice to an agent is notice to his prin- cipal. This general rule is not denied. The inquiry is under what circumstances directors of a corporation are its agents for the pur- pose of receiving notice. The directors of a corporation are not individually its agents for the transaction of its ordinary business, which is usually delegated to its executive officers, such as the president or cashier. Directors 3o8 LIABILITY TO THIRD PERSONS. are possessed of extensive powers, even to the extent of absolute control over the management of its affairs, but these powers reside in them as a board ; and, when acting as a board, they are collectively the representatives of the corporation. Notice to directors when assembled as a board would undoubtedly be notice to the corpora- tion. Under what conditions knowledge acquired by a director in other than his official capacity will be constructive notice to the cor- poration, and be binding on it, is not entirely settled in the cases. A distinction has been taken between knowledge of illegality or want of consideration of a note, by a director who acts with the board in discounting it, and such knowledge on the part of a director who is not present and acting with the board when the discount is made. In the former case it had been held that the bank is bound by his knowledge; in the latter it is not. Bank of the U. S. v. Davis, 2 Hill 451; North River Bank v. Ay mar, "3 Hill 262; National Se- curity Bank v. Cushman, 121 Mass. 490; Farmers, etc., Bank v. Payne, 25 Conn. 444; Farrell Foundry v. Dart, 26 Conn. 376; Na- tional Bank v. Norton, i Hill 572 ; Washington Bank v. Lewis, 22 Pick. 24; The President, etc., v. Cornen, 37 N. Y. 320; 2 Leading Cas. in Eq. 171, note to Le Neve v. Le Neve. This distinction has been criticized and condemned by Justice Story as sapping "the foundations on which the security of all banking and other moneyed corporations has been supposed to rest, to wit, that no act or repre- sentation or knowledge of any agent thereof, unless officially done, made or acquired, is to be deemed the act, representation or knowl- edge of the corporation itself." Story on Agency, § 140, b. It will not be necessary to consider the soundness of this distinction, for it is admitted that Perrine's knowledge of the infirmity in the consid- eration of this note was acquired when he was acting in his private capacity; and the opening of counsel did not propose to show that he was present at the bank when the note was discounted, and par- ticipated as a director in the act of discount. Perrine simply occupied a twofold relation. He was a member of the firm of M. & J. S. Perrine, and a director in the bank. In the absence of evidence that he acted in the capacity of a director in the discount of the note, the counsel must take their stand on the broad ground that in point of law the bank was chargeable, in virtue of his directorship, with knowledge of the private affairs of the firm. This position is obviously untenable. Powles v. Page, 3 C. B. 16. As a member of the firm and a director of the bank, Perrine was in the same position as a common director in two companies. Speaking on this subject, Mellish, L. J., says : "I cannot think that, because he was a common director to the two companies, we are on that ac- count to say that the one company has necessarily notice of every- thing that is within the knowledge of the common director, and which knowledge he has acquired as director of the other company. It appears to me that a director is simply a person appointed to act as one of a board, With power u biH'd \ . ■- a board, but having otherwise no power . s, L. ]., 'zes the proposition that whcic ,. ik is ask' \; 11 for himself, it should be iri;;v. ug com!>any that they have knowledge of rs, as n.o-; unreasonable. In re A' ■-..-; !- t? a,t>- ;..-;;; i6i. The cases to the d on m rbe text and note \'iies, ;:-. ;,e 424, et seg. '!!'.; counsel sought further to place tnis caac • . .;. Feiriue owed a duty to the bank, as a director, ti information he had with respect to the note, and tha; the note to be presented for discount without such .-.. was Irat'.dulent. They cited, in support of their content: B. '. Y, and Sharon Canal Co., 4 Paige 127. In - ■ ( : ugh was a director of the canal company, and one ■ 'I imittee, and also president of the bank. As president oi ■i e knew that the funds in question were deposited in the i>?ii^ .0 the credit of the canal company. They were drawn from f, • V by Brown, on his checks as president of the canal company, s^ "^r private purposes. The chancellor held that if Cheese- "r lew the purpose of Brown in making the drafts, it was '^i communicate the facts to the other officers of the bank <-\ 1 of directors, and that if he neglected to do so, the b. for his, fraud. Cheeseborough, as president of the i.i the funds had been deposited in the bank to ■: ud company; and if he knew that it \va-. n : 1 ..to appropriate the money to his individua' i • i • hira, as an officer of the bank, not to aid i case decided nothing more than the w re ion is liable for the fraud of " biu and in the due course of b 01 th ail the authoritie -^ -v, rr^.-f ,■■]...-] as well .:•,...,.-■;. . ., .1- a director is constrn 1 N'; ju'iu vvr c; v« his ■'. ' ' ' ered, ! information to his . : can- stricted within any ' ses where a director : do no official act to which s . , „; .\gency, § 1406. The case cj.. . The frau'' of Perrine, if there was any : ■ -^ '■ " by him in the course of '■'. c it of the firm exclusivelj -d uiLca lu tilt ; " ?lect on his part in hi 3o8 r.iAPri. =,sed of extensive ..ti. M ■■ver the pt"' ' '■"■•'• • n them as a boar( • sentativi ! as a b Under than hi.- poration, and A distincti";- of consid Perrme sni ibject, ]\i P'. ■' the e\; ibsolute '■"* ''" .*«..! s reside collectively .'■■rice to liirectors when Uv fw n/^tice to the oorpora- • ctor in he cor- net entirely a the cases. a knowledge . ..-^^ality or want ector who acts with the board in :e on the part of a director who ')Oard when the discount is made. <1 that ." Bank ^ V. .\ymar, "^ ' Mass. 490: Foundry v. ^ -1" : Wash!- ornen, ,• ve V. Le N<. d by Justice lity of all bai ■ i to rest, to agent there mcd the act, , CCiUI" ' !ther moneyed no act or repre- ^ officially done, .; — >-./.ation or knowl- Story on Agency, § 140, b. It will ■oundness of this distinction, for it !:::fe of the infirmity in the consid- vhen he w.^s acting in his private ^^el did not propose to show that ■he note wa.s discounted, and par- ' discount. i relation. He was £f member of ' o .Kf^.-t, ■^, *-:^ t;..,i. In the • in the e broad : J of his ...^ ul liic ilrm. This ,1 , 3 C. B. 16. As a lie bank, Perrine was in the "• two compa-'''--- '^ru-il'lny: nnnot th' uiijjanic- ■ necessn u appea- ippomted to act KNOWLEDGE OF AGENT. 309 as one of a board, with power to bind the company when acting as a board, but having otherwise no power to bind them." And James, L. J., characterizes the proposition that where a director of a bank is asking a loan for himself, it should be imputed to the banking company that they have knowledge of his own private affairs, as most unreasonable. In re Marseilles Railway Co., L. R. 7 Ch. Ap- peals 161. The cases to the same effect are collected and commented on in the text and notes of Mr. Green's edition of Brice's Ultra Vires, page 424, et seq. The counsel sought further to place this case on the ground that Perrine owed a duty to the bank, as a director, to communicate the information he had with respect to the note, and that his permitting the note to be presented for discount without such communication was fraudulent. They cited, in support of their contention, Fulton Bank v. N. Y. and Sharon Canal Co., 4 Paige 127. In that case, Cheeseborough was a director of the canal company, and one of the finance committee, and also president of the bank. As president of the bank he knew that the funds in question were deposited in the bank to the credit of the canal company. They were drawn from the bank by Brown, on his checks as president of the canal company, and used for private purposes. The chancellor held that if Cheese- borough knew the purpose of Brown in making the drafts, it was his duty to communicate the facts to the other officers of the bank or to the board of directors, and that if he neglected to do so, the bank was liable for his fraud. Cheeseborough, as president of the bank, knew the funds had been deposited in the bank to the credit of the canal company ; and if he knew that it was mediated by Brown to appropriate the money to his individual use, it was incum- bent on him, as an officer of the bank, not to aid in the misappropria- tion. The case decided nothing more than the well-settled doctrine that a corporation is liable for the fraud of its agents acting within their authority, and in the due course of its business, and cannot shield itself from responsibility by showing that the agent also failed in his duty to the corporation. If it decided anything more, the case is directly in conflict with all the authorities, and contrary to legal principles which have been regarded as well settled ; for if informa- tion within the private knowledge of a director is constructively no- tice to a corporation whenever it is his duty, abstractly considered, to communicate that information to his associates, the doctrine can- not practically be restricted within any bounds short of binding the corporation in all cases where a director has such private knowledge, though he may do no official act to which such information relates. See Story on Agency, § 1406. The case cited will not aid the de- fense. The fraud of Perrine, if there was any fraud in the trans- action, was committed by him in the course of the business of the firm, and for the benefit of the firm exclusively. If any loss had resulted to the bank from neglect on his part in his duties as director, 3IO LIABILITY TO THIRD PERSONS. he might have been held Hable for the consequences as between him and the bank. Stewart v. Lehigh Vahey R. R., 9 Vroom 505, 523. A corporation is hable for the fraud of its agents in transacting its business, but no case that has come under my observation has af- firmed that it is also liable for the individual frauds of its agents done by them individually, and for their individual benefit exclu- sively. In negotiating the note with the bank, Perrine was dealing with it in his own interest, and must be regarded as a stranger to the com- pany. Stratton v. Allen, i C. E. Green 229. The question how far the knowledge of an officer of a corporation, which he acquired out- side of the business of the company, and which was not, in fact, communicated to the corporation, is binding upon it, when it relates ta dealings between the officer and the corporation, was considered by the chancellor in Barnes v. Trenton Gas Light Co., 12 C. E. Green 33. The bill was filed to set aside a conveyance made by executors in fraud of the powers contained in the will. The convey- ance was made to Mr. Potts, who was the legal adviser of the execu- tors, and also president of the gas light company. Potts conveyed directly to the company, and the bill charged notice on the defend- ants solely on the ground that at the time of the conveyance to the company Mr. Potts was its president. On demurrer, it was held that the information which came to Mr. Potts' knowledge, as coun- sel of the executors, was not constructively notice to the corporation, and that the company was a bona fide purchaser without notice. The defense proposed was properly overruled, and the rule to show cause should be discharged.^ THE MERCHANTS' NATIONAL BANK OF KANSAS CITY V. LOVITT. 1892. Supreme Court of Missouri. 114 Mo. 519. Black, P. J. — This is an action on a negotiable promissory note for $2,900, executed by the defendant Lovitt and payable to O. P. Dickinson in four months after date, with interest from date at the ^ See Pennoyer v. Willis, 26 Ore. i. "Where a bank has several agents, to whom separate and independent du- ties are intrusted, notice to one of them, in regard to a matter not pertaining to his duties, cannot affect the bank." Clayton, J., in Goodloe v. Godley, 13 Sm. & M. (Miss.) 233, 238. A statement by the maker of a note to the president of a bank that the note was procured by fraud will not be binding upon the bank, although it subse- quently discounts the note, when the statement was not made to the president in his official capacity, and was not made at the bank nor with reference to the bank's business. Washington Bk. v. Pierce, 6 Wash. 491. KNOWLEDGE OF AGEM UX igRi: TK-.r ceiii;. per aniiuui, aiu.i i)y u'i'.."K:ii sea riuu . to the plaintiff bank. The defense set . .-itt, the r the note, is a failure of consideration. .; story of the transaction is this: On the - ' nf i. ^S, Dickinson, the payee ot : lii \v liimg sold to Lovitt fifty-fiv then about to be formed for whi» ? for $2,900 due in six months, j ■ ■. a itt and Dickinson before this note became di ■ ed. On July ii, 1888, Lovitt executed the uu.: ■t r?!c twenty-seventh of that month, and gave i f the former one, and Dickinson endorsed it i> day. Lovett paid the interest accrued on the Oi\. ! ;(,• purpose of the trial only, it was agreed "that the u > given for a contract in which the payee of the note a^ riain shares of stock which then had no existence and <.:■: same when the corporation was formed and stock cer- -sued ; that the corporation never was formed and the stock ' s never issued, and that there was a complete failure of con- ;) of the note; that said Dickinson, the payee of the note, lade the contract set forth in defendant's answer, at all m and after the making of the same up to the present time its existence and terms." '^'^rk was president, Mr. McKnight cashier, and Dickin- ident of the plaintiff bank when the bank acquired the on. They were all active officers, and Dickif r. Dickinson had a conversation with Clark, h he said he had or expected to get the 11 od Clark whether the bank would. tal:-= :ount the note. The evidence leaves it 'ion occurred after, or a day or two V cuted; but it clearly appears that C'. e the note. The note was executed '■ that day Dickinson endorsed and - . the same time figured up the ;n a ae: ; ■.'! the slip to the discount clerk o: .. ..-, casbiv r lerk. The discount clerk made the prope nt of the note less $10.30 to "^'^ ■ — '■" out and used the money. Lc- ink, and had a line of credit ' is evidence says he did not : ' .rk did. Clark testified tb te for the bank, but tha; nson, that is to say, to m: '. the proper amount of ui:>.. represented the interest fron - Lvvcn, ii, the latter being the pos'. 310 r.iABiur h' • .light have been held liable for aiia the bank. Stew; n v T.ehisrl: A corporation is li- business, but no c;i firmed that it is al done by them ind sivelv. In r it in h; pany. Str the knowL side of tl; comm^ " to de.' ^-' executors rn him ^. 523- ng its .l^ ..-^..^v.! V ,1- 1.J,) lias af- :■'.] frauds of its agents - iividual benefit exclu- ., i'crrrine was dealing with jod as a stranger to the com- ..'29. The question how far . i.i.iion, which he acquired out- V-, and which was not, in fact, binding upon it, when it relates ihe corporation, was considered enton Gas Light Co., 12 C. E. ' t nside a cor' e>ance made by ' . The convey- r of the execu- l^:)tts conveyed .; v,i.o.i;._v, ;>VM...,. on the defend- e time of the conveyance to the nt. On demurrer, it was held Mr: Poll> knowledge, as coun- .ctively r 'he corporation, de purcb>. .out notice. irrly overruled, and the rule to 'HE Ml ..900, ex. )ickmson in lour ,L BANK Oi^" KANSAS CITY ITT. vfTssouRi. 114 Mo. 519. li a negotiable promissory note nt Lovitt and payable to O. P. ifch interest trotn date at the ounts tiT. uil capacil bank's business. •a separate ai; ient du- gard to a matu .r , (r-rtaining ■n, J., in Goodloe v. Godley, 13 resident of a bank that the note ■m the bank, although it subse- :-. not made to the president tank nor with reference to Wash. 491. KNOWLEDGE OF AGENT. 3II rate of eight per cent, per annum, and by Dickinson endorsed and delivered to the plaintiff bank. The defense set up by Lovitt, the maker of the note, is a failure of consideration. The history of the transaction is this : On the twenty-seventh of January, 1888, Dickinson, the payee of the note in suit, by an agree- ment in writing sold to Lovitt fifty-five shares of stock in a corpora- tion then about to be formed for which Lovitt gave his note of that date for $2,900 due in six months. It was understood between Lovitt and Dickinson before this note became due that it was to be re- newed. On July II, 1888, Lovitt executed the note sued upon, dat- ing it the twenty-seventh of that month, and gave it to Dickinson in renewal of the former one, and Dickinson endorsed it to the bank on the same day. Lovett paid the interest accrued on the original note. For the purpose of the trial only, it was agreed "that the note sued upon was given for a contract in which the payee of the note agreed to sell certain shares of stock which then had no existence and de- liver the same when the corporation was formed and stock cer- tificates issued ; that the corporation never was formed and the stock certificates never issued, and that there was a complete failure of con- sideration of the note ; that said Dickinson, the payee of the note, having made the contract set forth in defendant's answer, at all times from and after the making of the same up to the present time knew of its existence and terms." W. B. Clark was president, Mr. McKnight cashier, and Dickin- son vice-president of the plaintiff bank when the bank acquired the note sued upon. They were all active officers, and Dickinson was also a director. Dickinson had a conversation with Clark, the presi- dent, in which he said he had or expected to get the note of Lovitt. He then asked Clark whether the bank would take it, and Clark agreed to discount the note. The evidence leaves it in doubt whether this conversation occurred after, or a day or two before the note in suit was executed ; but it clearly appears that Clark as president agreed to take the note. The note was executed on the eleventh of July, and on that day Dickinson endorsed and delivered it to the bank. He at the same time figured up the discount on a deposit slip and handed the slip to the discount clerk or to the cashier, who passed it to the clerk. The discount clerk made the proper entries, placing the amount of the note less $10.30 to the credit of Dickin- son, who checked out and used the money. Lovitt was a well-known customer of the bank, and had a line of credit thereat. Dickinson in his evidence says he did not accept the note for the bank, but that Clark did. Clark testified that he agreed with Dickin- son to take the note for the bank, but that he left the details of he arrangement to Dickinson, that is to say, to make the entries, receive the paper and deduct the proper amount of interest for the bank. The $10.30 deducted represented the interest from the eleventh of July to the twenty-seventh, the latter being the post-date of the note. 312 LIABILITY TO THIRD PERSONS. The officers of the bank, except Dickinson, knew nothing about the contract between Dickinson and defendant, and the bank had noth- ing whatever to do with the original note. The defendant asked the court to declare the law to be that the knowledge of the vice-president of the existence and nature of the agreement constituting the consideration of the note in suit was the knowledge of the bank, which request the court refused, and this presents the only question for our consideration. It is a general rule that notice of a fact acquired by an agent while transacting the business of his principal is notice to the principal, and this rule applies to banking and other corporations as well as to individuals. It is the duty of the agent to communicate to the principal information thus acquired, which would affect the rights of the principal ; and the presumption is that the agent has per- formed his duty in this behalf. If he has not, still the principal should be charged with notice of the existence of such facts thus coming to the knowledge of the agent, because he selects his own agent and confides to him the particular business. Story on Agency, § 140. But the reason of the rule ceases when the agent acts for himself and not his principal, and the rule itself ought not to apply in such a case. Accordingly, it has been held by this court that knowledge of an unrecorded deed acquired by officers of a corpora- tion, while acting for themselves and not for the corporation, will not be imputed to the corporation. Johnston v. Shortridge, 93 Mo. 227. An officer of a banking corporation has a perfect right to transact his own business at the bank of which he is an officer, and in such a transaction his interest is adverse to the bank, and he represents himself and not the bank. The law is well settled that, when an officer of a corporation is dealing with it in his individual interest, the corporation is not chargeable with his uncommunicated knowl- edge of facts derogatory to his title to the property which is the subject of the transaction. Taylor on Corporations (2d ed.), § 210; I Waterman on Corporations, § 135; Frenkel v. Hudson, 82 Ala. 158; Wickersham v. Zinc Co., 18 Kan. 481; Barnes v. Gas Light Co., 27 N. J. Eq. 33; Innerarity v. Bank, 139 Mass. 332. In the case last cited the court, after speaking of the general rule that knowledge of the agent will be imputed to the principal, says : "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 he represents the interest of the bank. * * * ^ 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." Now, the facts set up to defeat a recovery here are the facts con- stituting the transaction between Dickinson and the defendant, in le bank, 1. Dick- this particular ti vher customer, ai^j . • 1 it must fnllnw frr' note. and tigurert nut the ' hence h -^ent the bank. The .,-.. „ -. ...eres) t per annum from date ; and it appc ■ st at that rate from the eleventh of Jui}.. u><- niv.' I, to the twenty-seventh of that month, the date of ; 't appear wli broad fact . ent of the bank agreed to take the note, and that the u. ; the discount as figured up by Dickinson; and the fact, li it was, that he may have designated the rate of discottnt in th€ ^ * mce is wholly immaterial. He, nevertheless, represented his est in the entire transaction. The judgment is affirmed. NATIONAL LIFE INSURANCE COMPANY OF THE ■UliT OF .\FPKxvLS Or from judgtnent of the general term >. ' 'i^dicial department, in favor of def, ing a motion for a new trial, and :p. 242. See . ^ of the ■tvveen 1 .:ig whatever to di Ti ,> '!-h"ndant : k of the knowledge of ' j'tresei! it:^ trail s:t and i the cc' 1^^; Wick p i\. oi the 'V : . :■. ihr ,- Now. the facts st t ituting the transact; rat the .'] noth- r>e that the -ire of the ic noK . . uit was the court refused, and this ion. ;uired by an agent while notice to the principal, corporations as well as ent to communicate to the eh would affect the' rights is that the agent has per- ■ -M the principal 1 ich facts thus elects his own •ry on Agency, agent acts for .. ...•: ..lu .,-- ...silt not to apply ■X has been held by this court that vd acquired by officers of a corpora- 's and not for the corporation, will -hortridge, 93 Mo. ration has a pertect right to transact ^ 'lich he is an officer, and in such a a the bank, and he represents .; n w is w:ell settled that, when an ^q- with it in his individual interest, ■th his ' ? to thf ^an. 481 nirector r propos;. aicated knowl- ■ which is the 1.), § 210; ■1, 82 Ala. Gas Light e general rule rincipal, says : 'if director of ■ 1 case the represents i note, of :i loan of J his own property, stands ery here are the facts co^ -ion and the defendant, m KNOWLEDGE OF AGENT. 313 which Dickinson did not represent or profess to represent the bank, and with which the bank had nothing whatever to do. Again, Dick- inson in offering the note to the bank for discount represented his own personal interest ; and Clark, the president, represented the bank. In this particular transaction Dickinson occupied the position of any other customer, and not that of an officer or agent of the bank ; and it must follow from the principles of law before stated that the bank is not chargeable with his knowledge of uncommuni- cated facts affecting his title to the note. But it is said Dickinson fixed and figured out the discount, and hence he did in point of fact represent the bank. The note bore interest at the rate of eight per cent, per annum from date ; and it appears Dickinson calculated interest at that rate from the eleventh of July, the date of the trans- action, to the twenty-seventh of that month, the date of the note, and deducted as discount $10.30; but it does not appear who designated the amount of discount to be paid. The broad fact remains that the president of the bank agreed to take the note, and that the bank accepted the discount as figured up by Dickinson ; and the fact, if such it was, that he may have designated the rate of discount in the first instance is wholly immaterial. He, nevertheless, represented his own interest in the entire transaction. The judgment is affirmed. All concur.^ THE NATIONAL LIFE INSURANCE COMPANY OF THE UNITED STATES v. MINCH, administrator. 1873. Court of Appeals of New York. 53 N. Y. 144. Appeal from judgment of the general term of the supreme court in the third judicial department, in favor of defendant, entered upon an order denying a motion for a new trial, and directing judgment on a nonsuit. ^Accord: Seaverns v. Presbyterian Hosp., 173 111. 414. Contra: Henry v. Allen, 28 N. Y. Sup. 242. See criticism of this case in 8 Harv. Law Rev. 229. "It is sometimes said that it cannot be presumed that an agent will commu- nicate to his principal acts of fraud which he has committed on his own ac- count in transacting the business of his principal, and that the doctrine of imputed knowledge rests upon a presumption that an agent will communicate to his principal whatever he knows concerning the business he is engaged in transacting as agent. It may be doubted whether the rule and the exception rest on any such reasons. It has been suggested that the true reason for the exception is that an independent fraud committed by an agent on his own account is beyond the scope of his employment, and therefore knowledge of it, as matter of law, cannot be imputed to the principal, and the principal can- not be held responsible for it." Field, J., in Allen v. South Boston R. R. Co., 150 Mass. 200, 206. 314 LIABILITY TO THIRD PERSONS. This action was brought to recover of the defendant, as adminis- trator, etc., of Anna C. Minch, $2,500 and interest, as damages suf- fered by the plaintiff by reason of a conspiracy and fraudulent rep- resentations, whereby the plaintiff was induced to insure the life of the deceased, and to pay the loss after her death. The complaint alleged in substance that about the 17th day of March, 1869, the deceased, being at the time incurably diseased with a cancer, with her husband and Doctor Potter, combined and confederated together to deceive, cheat and defraud the plaintiff out of $2,000 by procur- ing an insurance upon her life for that amount. That for the pur- pose they did, orally and in writing, falsely and fraudulently repre- sent to the plaintiff, in applying for a policy of insurance upon her life, that she had not had, and did not then have any serious illness, etc., and that she was then, in all respects, a first-class, healthy risk, and safely insurable. That such representations were false and fraudulent, to the knowledge of the said deceased, her husband and said Potter, and were made with intent to deceive the plaintiff. That plaintiff, its officers and agents, then believed the said repre- sentations to be true, relied thereon, and were deceived thereby. That thereupon, in consideration of said representations and of the premium, the plaintiff duly issued its contract or policy of life in- surance to the said Anna C. Minch, insuring her life in the sum of $2,000. That after her death (on the 8th of July, 1869), in pur- suance of the fraudulent combination and purposes aforesaid, her said husband and said Potter falsely and fraudulently represented to the plaintiff that the cause of her death was pneumonia or inflam- mation of the lungs, and not any other disease. That the plaintiff, believing these representations to be true, relied thereon and was de- ceived thereby, and thereupon, after due notice and proof of her death on or about the eleventh day of September, 1869, paid to the defendant, as administrator, etc., the amount insured. The facts and evidence upon the trial, so far as pertinent to the questions discussed, appear sufficiently in the opinion. The court nonsuited the plaintiff. Exceptions were ordered to be heard at first instance at general term. Church,, C. J. — I am unable to concur with the ruling of the learned judge at the circuit, which was sustained by a majority of the court at general term, that there was not evidence sufficient to go to the jury to charge fraud or conspiracy upon the deceased in obtaining the policy, a conspiracy was alleged between the deceased, her husband and Doctor Potter, the medical examiner for the plain- tiff, to fraudulently obtain a policy of insurance upon the life of Mrs. Minch, knowing that she had, at the time, a cancer, which was an incurable disease. It was not necessary to establish the conspiracy against the three. It was sufficient to establish that the policy was obtained by fraud, for which the deceased was chargeable alone, or th otliers, and thi i evidence, ices from which nfer it. ation contained the ' i any =^s, local disease or pr e had best of her knowie.: - any , weakness tenditv ■ "' •iswer was in tht mat she had, at the taDe, a cancer :■: .;cf ii^ are of, and of which she afterward died. ^ evidence as to tlie fact of a cancer, and als I knew it, which should have been subn ^t that she signed the application, that she wa Potter for the purpose of making the medical c, . m- . , X communication with her husband, who, with the doctor, ;ive in making the application and procuring the policy, and ircumstances, were pertinent to go to the jury, upon the :; of her knowledge of the general fact that an insurance was tected upon her life, and, also, of the substance of the appli- A'hich she had signed. It is true there was evidence tending A' that the application was not, in fact, read over to her, and c did not know what it contained, but her ignorance of its was^ar from being conclusively proved. Ti, if the husband, as the agent of the wife, procured the 'i4 This fiction was b trator, etc., of Anna fered by the plaintili resentations, wherel. the deceased, and l alleged in subst ■ deceased, beins^ her husband - to deceive, '. ing an insu pose thev ■ sent to life ' etc said Po Tlir.f r,; belie vit:; ceived : death ci defendant, . The facts questions di. The court ..., heard at first in Church;, C. learned judge a it at get) :e jury t. ^i;^ the policy, \n(l and Dc titf, silently o Miiivn. .i.'vving ♦^'^ incurable diseas: against the three, i obtained bv fraud, f. lie defendant, as adminis- j interest, as damages suf- 'juspiracy and fraudulent rep- ^ induced to ^" • 'be life of er her death omplaint I 7th day of Axdrcl;, 1S69, the diseased with a cancer, witl : and con* together , ii out of , y procur :• that amount. That for the pur- 'vjg, falsely and fraudulently repre- . for a policy of insurance upon her did not then have any serious illness all respects, a first-class, healthy risk such repre- were false an< of the said ' iier husband an<; with intent to cieceive the plaintiff. ': agents, then believed the said repre- thereon, and were deceived thereby. :- ^f ■-"'• ' '^•■rations and of th<' policy of life in lincti, insu.iii^ ,ic. life in tl^e sum of • fon the 8th of July, 1869), in pur- gation and purposes aforesaid, her .j5ely and fraudulently representee; >t her death was pneumonia or intiam I'^v other disease. That the plaintifi" be true, relied thereon and was dc iter due notice and proof of her 13' of September, 1S69, paid to the the amount insured. ■ie trial, so far as pertinent to the ontly in the opinion. ■I. Exceptions were ordered to be ierm. concur with the ruling of the as sustained by a majority of 'dence sufficient to 11 the deceased in . alleged between the decease The Master of the Rolls (Sir William Grant). '■ " cause is a loan of money by the late plaintiflf, .^y to the defendant As it is not by hill in iciit is to be recovered, it is incumbent v nd to prove, some ground lor coming ihi It, or the means of obtaining payment of hi; ie :ju— lion of jurisdiction must depend upon the alk^^. :;e bill; which states that the defendant applied to the plain: -.e loan of three lacs of rupees upon the security of the dc;i bond: that the plaintiff agreed to advance that sum by insta; ' ' o and C^'into Baboo; and tlie otiestion is whether these declarations can a- of sucii facts as are alleged by the bill. Upon th opinion i?, that these declarations do not come within ti. upon which they are supposed to be admissible. As a • -■ sition, what one man says, not upon oath, cannot be * si :i! ■' r man. The exception must arise out of , • t ■>p '-oupled with the declarations made .t in the scope of his r n- :^ ; and in many cases 'ie agent may be what constitutes the agreement of the prin- cipal ; '-'^centations or statements made may be Ht- -.mi,. ela- tion c cement to, the agreement. Therefore g ^? ''''''' » uy law, evidence must be admitted tc te' that statement or representation. So, \ d - with which those acts ar line their quality. The c be bound by the act, must be affected by th< one or the othti ' >' nip,<;e ways I do not know . . ,ent can be ». gainst his principal. Tli "'■■' -annot .-'. ' -vof of it; though.' the bu : h the person m: as ployed as agent. ranee, if it was a ni«.i^ LIABIL' ■ceased to the aj' J...,. ..dan, and, it i^ >■ also claimed that ' ' ' - z to con'^-if evidenc auouc till deceabcd , conct ^ed as a ..Li. It is . ine the fall 1 there was at all those : '" 'T at the :i -i disease or, the husband and cancer, and acted in ,vere entitled to re- .iv: be chargeable with igent, they would be re- ' :- r-on colludes with t>onsible for the :e.s the prin- of innocent fiber their own J. t know that the •le deceased or her hus- Tong, and the plain- is not to be injured •i an opinion ilicting as to at it was not a o the jury. The n cases where a verdict I his is not such a case.-' -ud a new trial ordered, are the t:; in pos- , would n V. Black, i .van V. Curran, 2r6 DECLARATIONS AND ADMISSIONS. 317 Section 4. — Declarations and Admissions of Agent. FAIRLEY V. HASTINGS. 1804. High Court of Chancery. 10 Ves. Jr. 123. The Master of the Rolls (Sir William Grant). — The sub- ject of this cause is a loan of money by the late plaintiff, Maha Rajah Nobkissen, to the defendant. As it is not by bill in equity that money lent is to be recovered, it is incumbent upon the plaintiff to state, and to prove, some ground for coming into this court for the payment, or the means of obtaining payment of his demand. The question of jurisdiction must depend upon the allegations of the bill; which states that the defendant applied to the plaintiff for the loan of three lacs of rupees upon the security of the defendant's bond ; that the plaintiff agreed to advance that sum by instalments ; that a bond was executed, which it was agreed should remain with Caunto Baboo, an agent of the defendant, until the whole money should be advanced, and then should be delivered to the plaintiff; that the money was advanced, but the plaintiff never received the bond ; Caunto Baboo in answer to his repeated applications at length informing him that it had been delivered up to the defendant. In support of this statement the plaintiff' has not read, and could not read, any part of the answer. But the plaintiff has gone into evidence of declarations by Gobindee Baboo and Caunto Baboo; and the question is whether these declarations can amount to proof of such facts as are alleged by the bill. Upon that question my opinion is, that these declarations do not come within the principle, upon which they are supposed to be admissible. As a general propo- sition, what one man says, not upon oath, cannot be evidence against another man. The exception must arise out of some peculiarity of situation, coupled with the declarations made by one. An agent may, undoubtedly, within the scope of his authority, bind his prin- cipal by his agreement; and in many cases by his acts. What the agent has said may be what constitutes the agreement of the prin- cipal ; or the representations or statements made may be the founda- tion of, or the inducement to, the agreement. Therefore, if writing is not necessary by law, evidence must be admitted to prove the agent did make that statement or representation. So, with regard to acts done, the words, with which those acts are accompanied, fre- quently tend to determine their quality. The party, therefore, to be bound by the act, must be affected by the words. But except in one or the other of those ways I do not know how what is said by an agent can be evidence against his principal. The mere assertion of a fact cannot amount to proof of it ; though it may have some rela- tion to the business in which the person making that assertion was employed as agent. For instance, if it was a material fact that there 3l8 LIABILITY TO THIRD PERSONS. was the bond of the defendant in the hands of Caunto Baboo, that fact would not be proved by the assertion that Gobindee Baboo, sup- posing him an agent, had said there was ; for that is no fact, that is, no part of any agreement which Gobindee Baboo is making, or of any statement he is making as an inducement to an agreement. It is mere narration, communication to the witness in the course of conversation, and therefore could not be evidence of the existence of the fact. The admission of an agent cannot be assimilated to the admission of the principal. A party is bound by his own admission, and is not permitted to contradict it. But it is impossible to say a man is pre- cluded from questioning or contradicting anything any person has asserted as to him, as to his cfonduct or his agreement, merely be- cause tliat person has been an agent of his. If any fact, material to the interest of either party, rests in the knowledge of an agent, it is to be proved by his testimony, not by his mere assertion. Lord Kenyon carried this so far as to refuse to permit a letter by an agent to be read to prove an agreement by the principal; holding, that the agent himself must be examined ; Alaesters v. Abram, i Esp. N. P. Gas. 375. If the agreement was contained in the letter, I should have thought it sufficient to have proved that letter was writ- ten by the agent ; but, if the letter was offered as proof of the con- tents of a pre-existing agreement, then it was properly rejected. This doctrine was discussed incidentally in Bauerman v. Radenius, 7 T. R. 663 ; and in that case there is a reference to another, Biggs v. Lawrence, 3 T. R. 454, in which Mr. Justice Buller held that a receipt given by an agent for goods, directed to be delivered to him, might be read in evidence against the principal. The counsel in Bauerman v. Radenius state that the contrary had been fre- quently since held by Lord Kenyon at nisi priiis, without its hav- ing ever been questioned. That statement does not appear to have been denied upon the other side ; and seems to have been acquisced in by Lord Kenyon ; who said "that was not the point upon which the case was argued or determined ;" meaning the point, that such a receipt could be admitted in evidence. It will be found, however, that this question can hardly be said to arise in this case; when it is considered what the concern of Caunto Baboo in this transaction was, and what are the facts in proof of which his declaration was offered. Caunto Baboo is stated to have been in the employment of the defendant. One of the witnesses says he had the general management of his pecuniary concerns. But of this particular transaction he does not appear, either by the bill or the witness, to have had the man- agement. Upon the whole of the statement and evidence it does not appear that Caunto Baboo was concerned in the negotiation of the loan; that he was employed as the agent for this purpose. The statement of the bill represents the defendant himself to have made ; AV.ATlCr: 3; 9 liiLic;"! V, "hoo rela- c.ement, not . would ^.tatement of an - to d in evidence. rto s the agent of the u< iboo is represented v. ■:>i testimony. A man aj.'\k: ■. that the defendant agreement, ■" " admitted he maac 11. In tru;] nade it. But suppose Caunt' ui the defendant, and that he said he ; he agreement for this loan, and did pi', e a bond for the money, and did execute a bond, : not to the plaintiff, but to i' ' .,>,-,,.,-: and he gav^ , ".fendant, who undertook he interest, and <1 for the whole; all '' ' :u ot v.o evidence whatsocvjr ;he defendant had ag o, or had done, or omitted to do nee of h: !ent, or his acts, or his breach of terly imi .^ support this bill. . bill was dismissed.^ ,.viN, J, i.N M^KSBURG & MERIDIAN '^^ -. O'BRIEN. -UPREME Court of the United States, iio the trial below, plaintiffs introduced one Roa ■ iuring his examination wu'i ■,'.<\ -d whether he the accident, have ? ^. with the - 'f defendant's traiu at itic aiue of the r,: ■eed at which the train was moving a^ :; objected, but its ( - ' 'ted to an^ve-. Th( >, on cxammation of ■ !'i cross-ties under :. -wer to the above question was: nd : after the accident occurred. ^ -a- \jan Herbert, the engineer ha -o- d to the train at the time of in was moving at the rate '">f ! its objection I' ]\\v\\ Tl'.is mci •^ of his prircv Oie bend oi ti:c \,'Ould not be p^ posing him an agj no part of an^ r any statemer. is mere nan- conversation, the fact. The Bf pCM elude lilt:- c\ I. IK: have been dci' seed in , which ;" thai such a r- It will be to arise in t Caunto Bab' in proof of • to iu. le witnt concei . ir, eithe; agt-nr, L Upon not appear that ( the loan ; that he statement of the ijiu :c. •Id not be eA •jO. that 'OO, sup- ;tt IS no lact, that is, •■ i< making, or of , 'cement. It .i:C course of the existence of annot be a.ssimilated to the admission und by his own admission, and is not i it is impossible to say a man is pre- ?ntradicting anything any person has . . conduct or his agreement, merely be- an agent of his. If any fact, material to ■" ;ts in the knowledge of an agent, it is , ,, not by his mere assertion.. Lord li as to " ' rrait a letter by an an a^r^ • principal ; holding, ■ rs V. Abram, i .. -i. . . cd in the letter, i I t to have proved tliat letter was writ- tter was • <•' ■ ' as proof of the con- nent, tb .- properly rejected. v.identally m Uauerman v. Radenius, 7 Mere is a reference to another, Biggs AJr. Justice Buller held that -, directed to be delivered to minst the principal. The counsel ,lc 'that the contrary had been fre- enyon at nisi prius, without its hav- ;'hat statement does not appear to ther side ; and seems to have been : who said "that was not the p' i or determined;" meaning the pu; . . d in evidence. this question can hardly be said considered what the concern of ■' - "• ' '-:! are the facts Caunto Baboo the defendant. ■\Tq-ement of his m he ■■ s<\ the li vidence it does iic negotiation of c this purpose. The ^cir. i.uant nimself to have made DECLARATIONS AND ADMISSIONS. 319 the agreement; therefore, any representation of Caunto Baboo rela- tive to an agreement, not stated to have been made by him, would not be the statement of an agent, supposing such statement was to be admitted in evidence. The plaintiff fails first in showing Caunto Baboo was the agent of the defendant. In this case, such a fact as Caunto Baboo is represented to have stated is matter not of admis- sion, but of testimony. A man cannot admit what another has done, or has agreed to do; but he must prove it. When put upon the proof that the defendant made the agreement, it is absurd to say Caunto Baboo admitted he made it. In truth he does not admit that the defendant made it. But suppose Caunto Baboo distinctly proved the agent of the defendant, and that he said he knew the defendant did make the agreement for this loan, and did promise and undertake to give a bond for the money, and did execute a bond, but gave the bond, not to the plaintiff, but to the witness, and he gave it back to the defendant, who undertook to calculate the interest, and to give a bond for the whole; all this would be no evidence whatsoever of what the defendant had agreed to do, or had done, or omitted to do ; and without evidence of his agreement, or his acts, or his breach of agreement, it is utterly impossible to support this bill. The bill was dismissed.^ HARLAN, J., IN VICKSBURG & MERIDIAN CO. v. O'BRIEN. 1886. Supreme Court of the United States. 119 U. S. 99. 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 decayed condi- tion. His answer to the above question was : "Between ten and thirty minutes after the accident occurred, I had such a conversa- tion with Morgan Herbert, the engineer having charge of the loco- motive 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 an ex- ^ "What an agent says about the business of his principal, when he is engaged in doing it, may always be heard, not as mere declarations, but as explaining the character and quality of the act. The words spoken are a part of the thing done." Black, J., in Dick v. Cooper, 24 Pa. St. 217, 221. 320 LIABILITY TO THIRD PERSONS. ception 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, ma- terially 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 res^ult 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 principal, and may be proven without calling the agent as a witness. So, in conse- quence of the relation between him and the principal, his statement or declaration is, under some circumstances, regarded as of the na- ture of original evidence, "being," says Phillips, "the ultimate fact to be proved, and not an admission of some other fact." i Phil. Ev. 381. "But it must be remembered," says Greenleaf, "that the admission of the agent cannot always be assimilated to the admis- sion of the principal. The party's own admission, whenever made, may be given in evidence against him ; but the admission or declara- tion of his agent binds him only when it is made during the continu- ance 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 gestcB 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 while he was doing it." i Greenleaf, § 113. This court had occasion in Packet Co. v. Clough, 20 Wall. 540, to consider this question. Re- ferring 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 princi- pal, there his representations, declarations, and admissions respect- ing the subject-matter will also bind him, if made at the same time, and constituting part of the res gestae," the court, speaking by Mr. Justice Strong, 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 iso- lated act done, at a later period. The reason is that the agent to do the act is not authorized 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 Her- bert to the witness Roach 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 •1 A DM IF ■ ■ect to that matt rluence vv'tii '.-le jUry. Although the !e- grt-e si!l>iect to his control, si 'id V. with it authority to uiaivv. vl. d nt time, as to the nian;i'^r in • or at any rlpvignated point in li' His declaration, after the accid ... ..... when he was not performing the dutie.-^ "* ''^ moment the plaintiff was injured. \Na.\- i ..n miles an hour, was not explanatory ot ..^ then engaged. It did not accompany the ; .uries in question arose. It was, in its essence: of a past occurrence, not a part of the res ge n on or representation, in the course of conver . . not then pending, and in respect to which his authc er had been fully exerted. It is not to be deemed part • ; .'ta^, simply because of the brief period interveping betweei^ cident and the making of the declaration. The fact remains 1! ■ ;,e ncrtirrence had ended when the declaration in question was ineer was not in the act of doing anything that t it. If his declaration had been made the next ler the accident, it would scarcely be claimed that it was admis- .:;!,.. vX'idence against the company. And yet the circumstance that it was made between ten and thirty minutes — an appreciable period of t'"- '•"•'- the accident, cannot, ut ' ' '.■■-} the general rule. If t1; ''ow that '' . , would •es iiesiu;, without callin^^ id no support in the law ' . ..^ i^otigh in the admission of the at declar ; ,u,... ^.,.^,;,,,;j. tj^gjj. principals. i.iiv>e views iS in the highest courts of the sta ''"The di;c!:iratJoi!«, adnri.ss'.oi. is ' ticulariy Nelson Morris & -1 — Reinharp 320 Li.\]Vtl,I '\ taken. As be: ...... that, under tli • ' issue as to the cc time of the acr- ' the rails in tl terially defect) fifteen miles ^ neer may ! There . : admis^ The &' him, a pa I, ciieie inq: the su Justice Si universal t: 'lot auti h„ .., and hi We are of opi.i ' ort to the witnes- : >r the purpose of : at the timr ;t may be . from the icT, at the line where ' r . c proof, ma- at a speed exceeding eclaration of the engi- ; the result of the trial. al rules governing the to affect the principal. . .:,c authority delegated to 1. Whatever he does in the utable to the principal, and - as a witness. So, in conse- '. his statement 1 as of the na- Uie ultimate fact ■ler fact." i Phil.' red," says Greenleaf, "that the > . !; . '.c---- in lifted to the admis- u, whenever made, ■ion or declara- ng the continu- '. . ,oii Liien depending, et i act and part of the res '. there tore, it is not necessary to '. '.er what he did is admissible in Tove what he said about the act ■-. § 113. This court had occasion ;o. to consider this question. Re- 'ice Story in his Treatise on ■ e agent will bind the princi- ■ ns, and admissions respect- I, if made at the .same time. the court, speaking by M , ,- H,;o ,-„^e^ which is - ulty. But a. ' .'ued, eith' f narrati'. or an i > I gent to tie, or how ■ ncer !]■ iiie defend" 11 the train ^^ , in view of t DECLARATIONS AND ADMISSIONS. 32I 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 de- gree, 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 completed 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 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 nar- ration of a past occurrence, not a part of the res gestae — simply an assertion or representation, in the course of conversation, as to a matter not then pending, and in respect to which his authority as engineer had been fully 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 declaration had been made the next day after the accident, it would scarcely be claimed that it was admis- sible 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 should be main- tained, it would follow that the declarations of the engineer, if favor- able to the company, would have been admissible in its behalf as part of the res gestcc, 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.^ y'The declarations, admissions, or acts of an agent are evidence against his principal, only when they are made as to a business matter within the scope of his agency, and which is being transacted at the time. A person who is appointed an agent for a specified and limited purpose has no right to exceed his authority, and if he does, his acts or declarations are not binding upon his principal, unless subsequently ratified." Buskirk, J., in Rowell v. Klein, 44 Ind. 290, 293. See Pa. Co. v. Bridge Co., 170 111. 645. "When the owner of property previously acquired intrusts it to an agent solely to operate, he does not thereby give him authority to declare away his right or title or to make competent evidence against it by his mere declara- tions." Hook, Cir. J., in State of Missouri v. Hencken, 174 Fed. 624, 626. See particularly Caldwell v. Nelson Morris & Co., 125 La. 302. 21 — Reinhard Cases. 322 LIABILITY TO THIRD PERSONS. McENTYRE v. LEVI COTTON MILLS. 1903. Supreme Court of North Carolina. 132 N. C. 598. Montgomery, J. — The plaintiff brought this action in the court of a justice of the peace to recover of the defendant $8.35 for work and labor done in the defendant's cotton mill. Judgment was ren- dered against the defendant for the amount claimed by the plaintiff. The defendant's defense was that by a rule of the company the usual and customary pay day of the defendant for work in the fac- tory was on the 14th of April, and as the action was commenced before the pay day, i. e, before the amount was due, the plaintiff could not recover. On the appeal of the defendant, the jury answered the issue, "Is the defendant indebted to the plaintiff and if so in what amount? Yes, $8.35." In the superior court a wit- ness, Wood, testified that he heard M. Levi, president of the cotton mills, and R. H. Smith, the superintendent, testify in the justice's court. Wood was then permitted to testify over the defendant's ob- jection that he heard Smith say, in the trial before the justice, that he. Smith, had discharged the plaintiff from service at the mill; that Levi in the justice's court did not deny owing the amount sued for, but that the amount was not due until the 14th of April. The evidence of Wood was not competent. When the defendant com- pany filed its answer to the claim of the plaintiff, the power of the president or superintendent to make any further admission or dec- laration which could bind the company in reference to the cause of action, had passed. The admissions or declarations of the agent are received in evidence against the principal, not as admissions or declarations merely, but as parts of the res gcstcc; hence, only such as accompany the transaction in which the agent acted can be proved ; what the agent said at a subsequent time is inadmissible. Rice on Evidence, 446. Whatever therefore the agent does, in the lawful prosecution of that business, is the act of the principal whom he represents. And (Story) "Where the acts of the agent will bind the principal, then his representations, declarations and admissions respecting the subject-matter will also bind him, if made at the same time and constituting part of the res gestcs." Greenleaf on Ev., § 184 c; Branch v, R. Co., 88 N. C. 573; Craven v. Russell, 118 N. C. 564. It makes no difference that the agents Levi and Smith were officers of a corporation. The same rule applies. Smith v. Melton, 68 N. C. 108; Rumbough v. Imp. Co., 112 N. C. 751; 34 Am. St. 528. New trial. ^ ^ Compare 111. Cent. R. R. Co. v. Tronstine, 64 Miss. 834. "How far the statements of the agent are binding upon and competent to be given against the company, and to what extent they are part of the res gestcc, depends upon the circumstances of each particular case." Sherwood, J., in Keyser v. Chicago, etc., Ry. Co., 66 Mich. 390, 395. :i 1. — ^What Acts Can be Ratifien. ■j-j .\vs.\vnnn i. tn "■' 07 i' here a contr. . on the ground of public I -..atute, as the ' i'r>^r-.> ;. .- ,, reason iC u,.^ •ation affected wr on v. Marshall, :44. Ce' ' ' ■':- coccnii: ^oni a cor' id of frau; 'oartv, is inc^p^ble c not the , ■y's Eq. ^ , ^.. _ ..^ . — rs 276; 2 Parsons on Contracts 780. but however this may . must now consider Dur)^^' ' "^r.-rin^,-. -.-]-, -.^ .-.-.^r .■'.-; k^ 11 V. Chapin, 8 Wright v i contract tai ^ ' r 3 new com •ry 01 tne i' or undr'' t* receiv which mav any pa ick his V of thf ly void; and by the ,<.;-.., • '"^rmance ■ party : '- bound - of it r ■ -3^' iC, atx'.i .\ mere .Zii^ '^c. iie dete usual and tory was before '' coitlci iiie court " for work IS ren- ^ 'dintiff. by a rule of the company the . -.,e defendant for work in the fac- and as the action was commenced ".c amount was due, the plaintiff al of the defendant, the jury '.".ff and . a wit- •ii of tiie cotton n the justice's . testily defendant's ob- ■"■" ^'-■' 'he justice, that e at the mill; nt sued .. The It com- of the nake ai ■ admission or dec- . '1 ,n- fp to the cause r.: ■i the agent . cib admissions ui •; hence, only such § 184 c; N. C. 564. I. ', ilie agent uocs, in tiie -. . :t of the principal whom the acts of the agent will bi '■ •' -'f^'-i'-ttons and admissic :f made at the s.r .-cnleaf on t.' R'lpsell, > ' and com J are part of 'ar case." Sh CHAPTER VIIL RATIFICATION. Section 1. — What Acts Can be Ratified. SHARSWOOD, J., IN NEGLEY et al v. LINDSAY. 1870. Supreme Court of Pennsylvania. 67 Pa. St. 217, Of course, where a contract is void on the ground of pubHc pohcy, or against a statute, as the usury law, there is every reason to hold the confirmation affected with the original taint : Shelton v. Marshall, 16 Texas 344. Certain it is, that the doctrine that a contract, void on account of fraud practised on the party, is incapable of confirma- tion, is not the generally received doctrine of the elementary writers : I Story's Eq. Jur. 345 ; Addison on Contracts 273 ; i Sugden on Vendors 276; 2 Parsons on Contracts 780. But however this may be, we must now consider Duncan v. McCullough as overruled by Pearsoll v. Chapin, 8 Wright 9, in which it was expressly decided that a contract tainted with fraud may be confirmed or ratified without a new contract founded on a new consideration. It is there said that he who knowingly accepts and retains any benefit under such a contract, or who uses the property acquired as his own, after the discovery of the fraud, or who does any positive act forgiving the fraud, or unduly delays claiming back his property or giving up what he received, affirms the validity of the contract; and de- cisions in the courts of our sister states are cited in support of these instances. To which may be added James v. Emery, 40 N. Ham. 348; Mason v. Bovet, i Denio 69; The Mattiawan Co. v. Bentley, 13 Barbour 641 ; Wheaton v. Baker, 14 id. 594. "Ratification," says Chief Justice Lowrie, "is in general the adop- tion of a previously formed contract, notwithstanding a view that rendered it relatively void ; and by the very nature of the act of ratification, confirmation or affirmance (all these terms are in use to express the same thing), the party confirming becomes a party to the contract, he that was not bound, becomes bound by it, and entitled to all the proper benefits of it ; he accepts the consideration of the contract as a sufficient consideration for adopting it, and usually this is quite enough to support the ratification. A mere 323 324 RATIFICATION. ratification cannot, of course, correct any defect in the terms of the contract. If it is in its very terms invalid for want of consideration or for any other defect, a mere ratification can add nothing to its binding force." These principles are only a recurrence to those ad- vanced by Lord Chancellor Hardwicke in Chesterfield v. Janssen, 2 Ves. 125, I Atk. 354, the result of which was, that if the original contract be illegal or usurious, no subsequent agreement or confir- mation of the party can give it validity. But if it be merely against conscience, then, if the party, being fully informed of all the circum- stances of it, and of the objections to it, in his own words, "with his eyes open," voluntarily confirms it, he thereby bars himself of that relief, which he might otherwise have had in equity : i Fon- blanque's Eq. b. i, Ch. 2, § 13, n. Upon the principles thus estab- lished we discover no error in the rulings of the learned judge be- low upon this subject.^ TOWNSHIP OF TAYMOUTH v. KOEHLER. 1876. Supreme Court of Michigan. 35 Mich. 22. Marston^ J. — Koehler brought an action of assumpsit against the township to recover the value of certain iron, furnished to be used in the construction of a bridge, under a written agreement made with one of the commissioners of highways of said township. Several questions were raised and discussed relating, first, to the authority of said commissioners of highways to authorize the making of the contract in question, which it was said depended upon the regularity and validity of a special meeting of the people of the town called to vote moneys to build this bridge ; second, as to whether the board had authorized the making of the contract in question ; and, third, whether there was or could be a ratification by the board of the acts and contracts of the commissioner who made the contract under which the iron was furnished, which would render the township liable, even if the contract was not valid in the first instance." * * * 3. As to ratification, there may in certain cases be a ratification by the corporation of an unauthorized contract. It must, however, in such cases appear that the contract was one which could in the first instance have been legally entered into by the corporate authori- ties. And while there may be cases where knowledge that work ^ An act void by reason of illegality or otherwise cannot be ratified. Boutelle V. Melendy, 19 N. H. 196; Sanford v. Johnson, 24 Minn. 172; Macfarland v. Heim, 127 Mo. 327. " A portion of the opinion dealing with the first and second questions stated by the court is omitted. .1 lor the. use ana h jontract. ar.H the re- c oi the wc jii ; t one of that ole vnship made use oi the . hway would not '•• ' - f this were so, ti^ or on a public ' for the same or use could be coiijuucj lato an a >on V. School District, 32 N. H. i ; 385, et seq. Ag^ain, the proper parties to ...^ who could in the first ^i.^- r,re have leg:.; «ct. The people of the t are given m *. au.;^ „„.^:...j^ Jj^ |.j^g yg^ ^,, ^|, , |»j.j(jge cannot lor li- on; neither could the members of the be it u the boarcs wlnit- work was in progress, or after il ...o ^ rr^e^ ei^-^-er acc.:rt_iing to notice previously given, or a') +her without such notice, and with a knowl- ' - - :i done, approved of and ratified it, we think wnship would be bound by such action. Argenti v. San Fran- ify Cal. 255. The question still remains, was the contract in this case one ' <:. board could have authorized or ratified withc' -• under § 752, et seq. 1 T'^^'Ttp. I .. ^ t?o^ -ov re over any stream in- i,- "is state has been inu. --e % •tion cannot, of . — .ict. If it is in i''^ or for any other c binding force," vanced by Lor ■Vs. 125, I A: • tntract be ill stance his e^ that r b' eci in the terms of the '- V.;-,; r fJ > ,Mi-;i.-ieration. to its uiose ad- lanssen, 2 ij. tliai ii the original )t agreement or confir- ■ .'- be merely against I ; ::. :d of all the circum- it, in his ovvn words, "with .., he thereby bars himself of o'e have had in equity: i Fon- Upr^v] the principles thus estab- : ■:- >f the learned judge be- OEHLER. Vlich. 22. 1 stance. - Aiid wli ' Ai' act void ' V. Mtl<:ndy. 19 Heiin, 127 Mo. " A portion of hy the cour it an action of assumpsit against the f certain iron, furnished to be used . under a written agreement made )i highways of said township. \ and discussed relating, first, to the >f highways to authorize the making ' -^^ it was said depended upon the I meeting of the people of the "' ' ' ' Ige; second, as to of the contract in was or could be a ratification ' I'acts cf the commissioner who ished, which would • '••■■*• valid in tb^ ..■ '.'■:\i.i' .; a ratificat; ed cont Must, howe^ )uld in ; -ce authf. >wicdge that wc . '■.tit and second questions sta. WHAT ACTS CAN BE RATIFIED. 325 is being performed for the use and benefit of a corporation under an unauthorized contract, and the corporation afterwards accepts and makes use of the work done, would amount to a ratification ; yet this is not one of that class of cases. The fact that the people of the township made use of the bridge when traveling upon the public highway would not be an acceptance, and cannot be so con- strued. If this were so, then a party placing an unauthorized struc- ture over or on a public highway could thus compel the people to either pay for the same or abandon the use of the highway entirely, lest such use could be construed into an acceptance and liabiHty to pay. Wilson v. School District, 32 N. H. 118; see i Dillon on Mun. Corp., §§ 385, et seq. Again, the proper parties to ratify a contract are those who could in the first instance have legally made such a contract. The people of the township are given no such authority, so that their action in the use of the bridge cannot for this reason be held a ratification ; neither could the members of the board sev- erally. But if the board, while work was in progress, or after it was completed, met, either according to notice previously given, or all the members got together without such notice, and with a knowl- edge of what had been done, approved of and ratified it, we think the township would be bound by such action. Argenti v. San Fran- cisco, 16 Cal. 255. 4. The question still remains, was the contract in this case one which the board could have authorized or ratified without a vote of the people under § 752, et seq. i Comp. L., § 1306 provides that if any bridge over any stream intersected by a highway in any town- ship in this state has been injured or destroyed by the occurrence of a freshet or from any other cause, it shall be the duty of the high- way commissioners of such township, on application, etc., to pro- ceed with all convenient dispatch to repair or reconstruct such bridge, as the case may require, under the personal supervision of one of their number, or by letting a contract therefor, under exist- ing provisions of law, provided that a majority of the commissioners shall, after a personal examination, determine that the public in- terests and convenience require such repairs to be made, or that such bridge ought to be rebuilt, and provided also that the sum to be expended shall not in any one year exceed one thousand dollars. There are other provisions giving the commissioners the care and superintendence of bridges over streams intersecting highways, but it is unnecessary to refer to them in detail. The contract in this case is one apparently within the general power of the board. A third party entering into such a contract with one of the commis- sioners has a right to assume that the contract is, in fact as in ap- pearance, a proper one. So long, therefore, as the contract does not upon its face show that it is one beyond the power of the board to enter into, or to authorize one of their number to enter into, and the other contracting party is not notified to the contrary, 326 RATIFICATION. but goes on and in good faith furnishes the materials, he will be entitled to recover, if it appears, as already stated, that the com- missioner was authorized by the board to make such a contract, or that his action was afterwards ratified by the board. For all ma- terials furnished under any such contract, the statute points out a method of payment. As the rulings of the court below were inconsistent with what has been here said, the judgment must be reversed, with costs, and a new trial granted. The other justices concurred. STATE OF WISCONSIN v. TORINUS and Others. 1879. Supreme Court of Minnesota. 26 Minn. i. The state of Wisconsin brought this action, in the district court for Washington county, as endorsee of a promissory note made by defendants to the order of one Harriman. The averments of the complaint are, in substance, as follows : On March 3, 1869, the legislature of Wisconsin passed an act authorizing the Governor to appoint one or more agents whose duty it should be to preserve and protect the timber growing on the lands theretofore granted by congress to the state to aid in the con- struction of railroads, and to seize, in the name and on behalf of the state, all logs and timber that should be cut or carried away from such lands without lawful authority, and to sell the same at public auction to the highest bidder for cash, the money to be imme- diately paid into the state treasury. From May, 1869, until 1874, Harriman was the duly appointed agent of the plaintiff, under this act, and in the summer of 1873 he received a large quantity of pine saw logs, which the defendants, during the previous winter, had wrongfully cut on certain of the lands described in the act and be- longing to plaintiff, and had driven to the St. Croix boom. The logs thus seized Harriman advertised for sale at public auction, for cash, to the highest bidder, and at the sale, on July 25, 1873, they were struck off and delivered to the defendants, who at once converted them to their own use, and have never paid the plaintiff anything therefor. On December 23, 1873, the defendants, in consideration of such sale and delivery, made the note in suit, whereby they promised to pay to Harriman or oraer $8,799.66, on May i, 1874, with interest at ten per cent, per annum, which note, before maturity, was en- dorsed and delivered by Harriman to the plaintiff. On February 15, 1878, the legislature of Wisconsin passed an I he present suit and the note, . 'TitU and void, ai _ by act of the k .;, mg- ana C- ^rnnian and the n> hereof, valid h'c had ;ty to se: 'ni- ; ,. y after the passage of /v gu.icral demurrer • ■ ''■'■f acting for the judge pealed. In. a former suit betwef r of 1878, th- an had no -r IS unauthorized and void ion than the sale, wa*^ .' !•=<•: ratified and made g .:. See 24 Minn. 332. r., T. — In a former action between these partic nted to this court, on appeal therein, as to tl; :• in controversy in this action. Upon the facts. .. It was held invalid for want of consideration, for the reason 'vas given solely upon an unauthorized sale of logs from ) defendants, made by an agent of the former, by which .. uf interest whatever in the property was transferred: 24 332, Since then, and before the commencement of this ac- etate, by legislative r '5 duly and fully ratified ed the act "of its age in making the sale snd : note, and the quest 'e us re) rhis ratification. It hat it •se, because a contract void as prohil !■ -ide good by a subsequent statute. ^ - A contracts made absolutely void an [ their illegal charact ' 'S being ./>s no application to - of this :, or takr .. The •: it to the defendants on ihe sau s prop- i.'>'.igh unauthorized and im, '■• the : him his authority was ' a .iimjral nature, or tainted w : :*";' :er, nof was it prohibited as s ' -h he acted was not '' re of a pf^wpr rs{ nttf -tate a - . ud wh; _ the sale ot his KAMIL: \ iHu goes on and in go entitled to recover, if missioner was aut or that his actir-^^ ^ terials furnishc method of pay As the rulir has been }■ a new trial The otli- he will be .1 tlie com- :■ such a contract, .. uoard. For all ma- le statute points out a \v were inconsistent with what jst be reversed, with costs, and TOP TNT TS AND Others. li/ Mix: 26 Minn, i. The st3i vht this action, in the district court jrsee of -' '^'^^^' ■'' ■■ ^"g's, .• -• tully cut ' ■:i.^;iiiy to plaii thus seized Ha to tho hip': pay to Harriman < at ten per cent. p< dorsed and delivet On Februar •sin passed an act i.t one 01 more agents whose ■ itect the timber growing on the igress to the state to aid in the con- ize, in the name and on behalf of. iiat should be cut or carried away ;;^thority, and to sell the same at cor cash, the money to be imme- From May, 1869, until 1874, ■■^ent of the plaintiff, under this ■ed a large quantity of pi: 'he previous winter, h" :bed in the act and 1' '"--•■'• ^vx)m. The log;. I tion, for cash, they wf ;< . convert< J LUe plaintiff anythi )n of sii; ■ , i-romised ^-j 4. with interest maturity, was en Wisconsin passed ■ WHAT ACTS CAN BE RATIFIED. 32/ act expressly ratifying and confirming the sale made by Harriman to the defendants, and the note taken by him on account thereof, and making the same valid from the beginning as fully as if he had always had full authority to sell on credit and to take the note. Im- mediately after the passage of this act the present suit was brought. A general demurrer to the complaint was overruled by Brill, J., acting for the judge of the first district, and the defendants ap- pealed. In a former suit between the same parties, on the same note, prior to the act of 1878, the defendants had judgment on the ground that as Harriman had no authority to sell except for cash, the sale made by him was unauthorized and void, and the note, having no other consideration than the sale, was also null and void, and that the sale could be ratified and made good, only by act of the legislature of Wisconsin. See 24 Minn. 332. Cornell, J. — In a former action between these parties, the ques- tion was presented to this court, on appeal therein, as to the valid- ity of the note in controversy in this action. Upon the facts therein stated, it was held invalid for want of consideration, for the reason that it was given solely upon an unauthorized sale of logs from plaintiff to defendants, made by an agent of the former, by which no title or interest whatever in the property was transferred: 24 Minn. 332. Since then, and before the commencement of this ac- tion, the state, by legislative enactment, has duly and fully ratified and adopted the act of its agent Harriman in making the sale and taking the note, and the question now before us relates to the legal effect of this ratification. It is objected that it is ineifective for any purpose, because a contract void as prohibited by statute can- not be made good by a subsequent statute. While this is true as to acts and contracts made absolutely void and prohibited by law because of their illegal character, and as being contra bonos mores, the rule has no application to the facts of this case. Giving credit on the sale of logs, or taking notes in payment, is not prohibited by any law or statute. The act of Harriman as the agent of the state in giving credit to the defendants on the sale of his principal's prop- erty to them, though unauthorized and impliedly prohibited by the statute which gave him his authority was not in itself an act of a wrongful or immoral nature, or tainted with any vice of illegality of that character, nor was it prohibited as such by any statute. The statute under which he acted was not directed to that end. It was rather in the nature of a power of attorney, which conferred upon the agents of the state a specific and limited authority in reference to certain matters, and which defined particularly the extent of such authority. In making the sale of his principal's property on time, and taking a note for the purchase money, the agent, Harriman, ex- ceeded his delegated authority, and, for that reason alone, his act was an invalid one. It was competent, however, for the state as 328 RATIFICATION. principal to make it good by a legislative enactment, adopting it as its own ; for it could have authorized it in the first instance, and whatever it can do or direct to be done originally it can subse- quently, and, when done, lawfully ratify and adopt, with the same effect as though it had been properly done under a previous author- ity. That the state might, through its legislature, in the absence of any prohibition in its fundamental law, have authorized Harri- man as its agent, in the first place, to make the very sale he did admits of no doubt. The proprietary rights of a state are as absolute and unqualified as those of an individual. It may, in the absence of any self-imposed restrictions in its constitution, sell and dispose of its property upon its own terms and conditions for cash or upon credit; and it may also take, hold, and enforce notes and obliga- tions received from the purchasers of its property the same as in- dividuals can. But as the legislative department is the only one that represents the state in respect to such rights, it alone can exer- cise the power necessary to the enjoyment and protection of those rights, by the enactment of statutes for that purpose. In the case before us, the state has duly ratified the acts of its agent in making the sale to the defendants, so that the title to the property which they purchased, the possession of which they still hold, has become perfect, and they cannot longer object that the note they gave is without consideration.^ * * *- Order afftrmed. SHISLER V. VANDIKE. 1880. Supreme Court of Pennsylvania. 92 Pa. St. 447. Assumpsit by George H. Vandike and Theophilus G. Vandike, trading as George H. Vandike & Co., against John A. Shisler, as endorser of a promissory note, dated July 2d, 1875, at four months, for $1,500, drawn by Catherine Shisler to the order of George A. Shisler, and endorsed by George A. Shisler, Charles Shisler and John A. Shisler. At the trial it appeared, both by the evidence of plaintiffs and of George A. Shisler, who was called for the defendant, that the note in suit was given by George A. Shisler to pay an indebtedness of said George to plaintiffs. The latter testified that they had sent for John A. Shisler and showed him the note, and that he denied that it was his endorsement, but said that he had authorized his brother ^ A portion of the opinion dealing with the character of the plaintiff's title is omitted. * See also State v. Executor of Joel Buttles, 3 Ohio St. 309. ':iTii, ana Viuic ; '■'<-' r.nufi declared that b' hut John : alesman oi \ b- view, and ht , he detendant te,s..,, 'i! 1 'i' ze anyone to do so ■ he had authorizf ' led for the det Mr. Vandike's to j^cc^ lae note ; tiic> this interview ; 1 did not endorse the c; never told Vandike that I was authori. • thought they were genuine signatures. A s store, heard my brother John distinctly state .It he authorized the signature to that note." ' ndant, inter alia, submitted the following point 1 the name of John V. Shisler was endorsed by ? ' OMt his authority, and that he subsequently witho; on, ratified or confirmed it, your verdict must be foi vi declined to affirm this point, and in the general charge, >., said, "that the theory of the plaintiffs was that George the note as his brother's agent, either with his previous au- r a subsequent ratification, and if the jury believe that view ence, the act was capable of ratification/' n also charged; "I i: ju that you '\ of consideration, tV e being thi ':-. -te in satisfaction ot," lict was for the ,. s. After judf^-.v ^vrit, and alleged that the court erred I'oint, and in the portion of the charge S. Dickson and Nathan H. Sharpli ft, in saying that the plaintiff?; of a debt, took the question o A-tr. asked to charge, in substanc ■gery, and the ratification or n ;■ was without any new con-' .i.jjIs er. That this proposition k - dis- h V. County of ^^ " "ih have simply affi -, tor defendants in e ition that the doctrii ■mmand," does not ai 1- ' ■ -'ty : McHugh v. v . e .^ported by any deci^^i- 1. !non til based upon three ca- . J.ic-unl- principal to make as its own ; for it c whatever it can cl- qiiently, and, whet: effect as though it ity. That the ' ' of any prohibi rnan as its admits of ; and U!' of an} of its 1 ti mg it . t, and done originally it can subse- :itify and ad''^''^ -vifli the same done under is author- its legislate, w, i.i ilie absence al law. have authorized Harri- ' ' very sale he did Late are as absolute - ' li. k may, in the absence •nstitution, sell and dispose lis and conditions for cash or upon ' >ld, and enforce notes and obltga- crs of its property the same as in-' slative department is the only one ci to such rights, it alone can exer- enjoyment ; ction of those utes for thai .In the case tied the acts ot us agent in making hat the titir i.) the property which f whicli " hold, has become AN DIKE. lo.- 92 Pa. St. 447. Assumpsit r. trading as G^oi . endorser of a j', for $1,500, dnv. vShi?Ier, and endor l:'hn ^. Shisler. rial it apt' Shisler, s given I ■y^.-i ' .■ . ■! ^t to plairii.;.; John A. Shisler and si it was his endorsement. ' A portion of the opinioi: oniiited. ' See also .State v. Execui _ and Theophilus G. Vandike, 3., against John A. Shisler, as ' 1/ 2d, 1875, at four months, 10 the order of George A. ''harles Shisler an ffs and of :.t the note idebtedness < •V had sent f- le denied ti;; his brotl; . M-ic plaintiff's ; 100. WHAT ACTS CAN BE RATIFIED. 329 to endorse for him, and that he considered himself Hable under that name, and declared that his name was not John A., but John V. Shisler. A salesman of Vandike & Co. testified that he was pres- ent at this interview, and heard one of the Shisler brothers say that they did not sign the note, but authorized their signatures to be put thereon. The detendant testified that he did not endorse the note nor authorize anyone to do so for him, and that he had never ad- mitted that he had authorized George to endorse for him. George Shisler, called for the defendant, testified : "I brought my two brothers to Mr. Vandike's to get the note; they both knew of this note before this interview ; I did not endorse the names on the back of the note ; never told Vandike that I was authorized to endorse the note ; I thought they were genuine signatures. At the interview in Vandike's store, heard my brother John distinctly state to George Vandike that he authorized the signature to that note." The defendant, inter alia, submitted the following point : "If you believe that the name of John V. Shisler was endorsed by another person without his authority, and that he subsequently without any new consideration, ratified or confirmed it, your verdict must be for the defendant." The court declined to afiirm this point, and in the general charge, inter alia, said, "that the theory of the plaintiffs was that George signed the note as his brother's agent, either with his previous au- thority or a subsequent ratification, and if the jury believe that view of the evidence, the act was capable of ratification." The court also charged ; "I instruct you that you may disregard the matter of consideration, the evidence being that the plaintiffs took the note in satisfaction of the debt." The verdict was for the plaintiffs. After judgment, defendant took this writ, and alleged that the court erred in the answer to the above point, and in the portion of the charge noted. Edwin S. Dickson and Nathan H. Sharpless, for plaintiffs in error. The court, in saying that the plaintiffs received the note in satisfaction of a debt, took the question of fact from the jury. The court was asked to charge, in substance, that if the endorse- ment was a forgery, and the ratification or confirmation relied on by the plaintiffs was without any new consideration, the plaintiffs could not recover. That this proposition is sound in law is dis- tinctly ruled in McHugh v. County of Schuylkill, 17 P. F. Smith 391. The court should have simply affirmed defendant's point. P. F. Rothermel, for defendants in error. To sustain the position that the doctrine, "a subsequent ratification is equal to a prior command," does not apply in this case, the defend- ants cite a single authority : ]\IcHugh v. County of Schuylkill, a case standing by itself, unsupported by any decision, and since overruled. The opinion therein was based upon three cases : Duncan v. Mc-Cul- 330 RATIFICATION. lough, 4 S. & R. 483; Chamberlain v. McClurg, 8 W. & S. 31, 36, and Goepp's Appeal, 3 Harris 428, all of which were expressly- overruled in Negley v. Lindsay, 17 P. F. Smith 217, a case decided a few months previous to McHugh v. County of Schuylkill, and reported in the same volume of reports. In Negley v. Lindsay, supra, it was held, "Where a contract is void on the ground of public policy, or against a statute, its con- firmation is affected with the original taint." "Where a contract is void on account of fraud practised on the party it may be con- firmed or ratified without a new contract, founded on a new con- sideration." Mr. Justice Gordon delivered the opinion of the court, January 26, 1880. There was no error committed by the court in saying to the jury, "I instruct you that you may disregard the matter of consideration, the evidence being that the plaintiffs took the note in satisfaction of the debt." There seems to have been no dispute about this on the trial ; the whole evidence most clearly proves that the note was intended to apply upon the indebtedness of George A. Shisler to the plaintiffs, and for that purpose it was endorsed, if indeed it were endorsed at all. It was not a pledge of the note as collateral security for a pre- cedent indebtedness, but was given to apply in payment of such in- debtedness, and hence was similar to a check drawn for that pur- pose. The remaining question is, if George A. Shisler, or anyone else, fraudulently endorsed the name of John V. Shisler, would an after ratification render such endorsement good and available in the hands of good-faith endorsers? The court below thought it would, and so instructed the jury. This instruction seems to us in the first place, wrong in this, that we can find no evidence to warrant it. There was testimony, and abundance of it, that John had authorized the putting of his name upon the paper, but none whatever that he had subsequently ratified the endorsement, either b}^ word or deed. The question, however, remains, could the forged endorsement, conceding it to be such, be ratified and thus made good? This question must be answered in the negative, if we accept as author- ity the case of McHugh v. Schuylkill County. This case is in point ; there, as here, the question was whether there could be an after ratification of a forged obligation, and it was held that there could be no such ratification. It is true, the dicta of this case, going as they do beyond the point ruled, would indicate that no contract, vitiated by fraud of any kind, is the sub- ject of subsequent ratification. But this cannot be sustained, as it is opposed to those decisions now regarded as law, notably. Pear- soil V. Chapin, 8 Wright 9, and Negley v. Lindsay, 17 P. F. Smith 217. The distinction between these cases seems to be this, where CTS CAN V,E .e pera: ' '. faith a. -^, and nothir ^S ■ inc. :CcCl, , -.1. .cd, in the cas contract be illegal, or voir ■t ■-•-' -■■ '•'"ication will help : >n was forged, it Wc ity: , U:. also illegal, , and of an a V. Gonter, 6 Wrigiit 14^, the que ..J, executed under the authority of a i^ _, tomey, was the subject of ratification, and it was held 1 But here tiiere was no forgery of the mortgage itself, .. ., executed under a supposed power. Mr. Justice Strong, \\ ":■ lion, says: "'It is hardly accurate to speak of ra:;* • istrument. It may be adopted, but adoption doc-i tnd vaHdate p/ior acts. If the letter of attorney was ;, no act of IVlrs. Gonter in 1859, after her return pe, could make it efficient from its date. But she could mortgage, for that was executed in her name by a pro- it, acting under a real or pretended authority." Now, riy understand what is here said, it amounts to this : the executed without a fraudulent intent, by a professed 1 supposed pover, was susceptible jther hand, the forged leUer of attor' such ratification. This, of course, j both the agent and n-> ,.r; ^ussible thi the mortgagee, for ii is very clear ; notwit': ''^^, be 'i Ct Wltil Uiat ?'v ^warded.' -'p's Ap a few iiionti^ reported in tb In Negley . void on the t firniatioij ■ is void r- \ b. 31, 30, ^- expressly decided -LiU, and M as j.vii, WfKic a contract i^ v.'br against a statute, its con- ' taint." "Where a contract on the party it may be con- contract, founded on a new con- . .;. I. V iv;nn ;i of the court, January Led by the court in saying to the jury, '■-- - • the matter of consideration, ook the note in satisfaction There w: .an- ir ion must be e case 0^' ^■T, ;s case •Id l)t that th^ ject of s. is oppose soil V. Cj dispute aL n the trial; the •,vas intended to . !C> the plaintiffs, dorsed, it were endorsed at ' note as ^ .;,.... ;ai security for a pre- iven to apply in payment of such in- '■•'■hr 'cck drawn for that pur- . . ;x; A. Shisler, or anyone else, ; , n V. Shisler, would an after -i id available in the hands .1 , .. V thought it would, and I ruction seems to us in the first ' find no evidence to warrant it. ce of it, that John had authorized :;, but none whatever that ' ent, either by word or dc aid the forged endorsem.: ^.<' tlias made good? T ccept as autl ' .as whet' tion, ant is true, • uled, w<. . is the s .• -Ui^tained, as it . N, notably, Pcar- iiay, 17 P. F. Sr^ WHAT ACTS CAN BE RATIFIED. 331 the fraud is of such a character as to involve a crime, the ratifica- tion of the act from which it springs is opposed to pubHc poHcy, and hence, cannot be permitted, but where the transaction is con- trary only to good faith and fair dealings; where it affects indi- vidual interests, and nothing else, ratification is allowable. It is indeed, conceded, in the cases last above cited, that if the original contract be illegal, or void for want of consideration, no subse- quent ratification will help it. If, however, the endorsement under consideration was forged, it was not only void for want of author- ity, but it was also illegal, and so, comes under the condemnation of all authority. In Garrett v. Gonter, 6 Wright 143, the question was, whether a mortgage, executed under the authority of a forged power of at- torney, was the subject of ratification, and it was held that it was. But here there was no forgery of the mortgage itself, for it was executed under a supposed power. Mr. Justice Strong, who de- livered the opinion, says: "It is hardly accurate to speak of ratify- ing a forged instrument. It may be adopted, but adoption does not relate back and validate prior acts. If the letter of attorney was forged in 1854, no act of Mrs. Gonter in 1859, after her return from Europe, could make it efficient from its date. But she could confirm the mortgage, for that was executed in her name by a pro- fessed agent, acting under a real or pretended authority." Now, if we properly understand what is here said, it amounts to this : the mortgage, executed without a fraudulent intent, by a professed agent, under a supposed power, was susceptible of ratification, whilst, on the other hand, the forged letter of attorney was not sus- ceptible of such ratification. This, of course, presupposes the in- nocency of both the agent and mortgagee, otherwise the mortgage itself would have been a fraud, and hence no more the subject of ratification than was the power. It is possible this case was strained in favor of the mortgagee, for it is very clear from the evidence, the verdict of the jury to the contrary, notwithstanding, that the power of attorney was genuine. However, be this as it may, this case does not conflict with that of McHugh v. Schuylkill County, and we must therefore consider the latter as of binding authority. We conclude, then, that as, from the evidence, in the case in hand, the doctrine of ratification could have no place, except as operative upon a forged instrument, it should have been wholly excluded, since being admitted, it amounted to the ratification of an illegal and criminal act. This sustains the fourth and fifth assignments of error. Judgment reversed and a new venire awarded.^ ^Accord: Brook v. Hook, L. R. 6 Ex. 89. In Woodruff v. IMunroe, 33 Md. 146, it was held that one, whose signature as maker of a note was forged, would be estopped from setting up the forgery as a defense, when he had induced a holder in due course to take the note by 332 RATIFICATION. HENRY ET AL. V. HEEB. 1887. Supreme Court of Indiana. 114 Ind. 275. Mitchell,, C. 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 knowledge that the plaintiff held the note in controversy, ratified and confirmed the same, and promised to pay it, and accepted a chattel mortgage cov- ering the partnership property of Heeb and Schonert, 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 sig- nature of Henry, as it appeared on the note, was his genuine sig- nature, 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 incrimi- nate any particular person, or directly pointing to any one as having perpetrated the crime of forgery in respect to the appellant's sig- nature. 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 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 representing that the signature was genuine. See dictum to same effect in Workman v. Wright, S3 Ohio St. 405. <,f : , iher or not he executed the note, d promised to pay it, h The judgment was fav n the demurrer to t ons are complamed judgment. The reply and the instf' .-sent su! >-,,., viestion. s not appear that tb> appellant in- to change his posit5uii m ;:i'dfi and the appellant Henry, described in the second para- on of which Henry denied under he plaintiff replied, in substance, Stained full knowledge that the ersy. ratified and confirmed the Vi rrjortgage cov- . t, the principal aiiy liabiiity which might exist on surety on the note. This was held ciic- ....V....,, . . -'ve that the sig- :d on the note, was his genuine sig- •r t ' — ove that it was not I in that regard was ht signa.tu!t on tlie one hand and to was no evidence tending to incrimi- lirectly pointing to any one as having ■'■\ in respect to the appellant's sif-- je Avhich tended to show that .-•.t had, with the appellant's conS' had been previously signed by 1 •1 i'i n^/n subsequently obtainea Mavnia; ' nor authorized ^*i" •' iA-intM\- rtrifipfl^ the Ti.L.i.^.. -I r i: . .n V. Tumman, .!iu.-i, oo .i.i.>\va 400 .^o, if a contract id practised on one party, or if for ', yet if the ' tving the right 'v informer', v ly confirms or new considerate. _ e released the pi :ng is thereby precluded frc •I a lui, ::t ur ot a Con- or m? 1 of a criminal One who cc lie of another to the agent of the per- ..;.-;,, diefe would seem to b** ratification or adoption of f, nstitutes a crime and it is different to undo ;:iii of the criminal act n:;' n'l hv a contract to wh> d which as to hi .. consideration. . a case to attribute a; ■-■ ■■'■r-r' the crime a an pay mor ronged, aay be estop ig-ed thei'- " ' fro; A detrim'"' WHAT ACTS CAN BE RATIFIED. 335 policy, be ratified without a new consideration to support it. Shisler V. Vandike, 92 Pa. St. 447, 37 Am. R. 702 ; McHugh v. County of Schuylkill, 67 Pa. St. 391, 5 Am. R. 445; Workman v. Wright, 33 Ohio St. 405, 31 Am. 546, and note; Owsley v. Philips, 78 Ky. 517; Brooke v. Hook, 24 L. T. 34 (3 Alb. Law Jour. 255). 2 Daniel on Negotiable Instruments, 1351, 1353; 2 Randolph on Commercial Paper, § 629. In case of a known or conceded forgery, we are unable to dis- cover any principle upon which 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 v. Wright, supra; Owsley v. 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 to 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 anyone. The question was whether the note had been signed by the appel- lant, or by someone 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 someone who assumed to act as his agent, or under pretense or color of au- thority, ratification, understandingly, either by an express promise 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 statute, the motive of the ratifying party being presumably the concealment 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 author- ity 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 with- out consideration, especially where, as in the present case, indem- nity has been accepted. These conclusions lead to an affirmance of the judgment. Judgment affirmed with costs. 336 RATIFICATION. WELLINGTON and Others v. JACKSON. 1876. Supreme Judicial Court of Massachusetts. 121 Mass. 157. Contract, against the maker of a promissory note. Answer, a denial that the defendant made the note.^ * * * The presiding judge instructed the jury as follows: "If, upon the whole evidence in the case, the jury shall be satisfied that the defendant, knowing that his signature was forged, by his words, acts or silence, gave the plaintiffs to understand that it was not forged, but was a genuine signature, intending thereby to cause the plaintiffs to rely on the note as his note, and the plaintiffs did so rely and act upon it, and were injured thereby, the defendant would be estopped to deny that his name was not a genuine signature and that it was not put there by him or by his authority." The counsel for the assignee asked the judge to give these in- structions : "I. Estoppels are not favored in law, because they operate to shut out the truth, and to prevent parties from asserting or defending their rights by proof of actual existing facts. 2. There must be shown a wilful intent to induce the party to act on the faith of the alleged statements or representations, in addition to the fact that such statements were acted upon." The judge gave the second instruction, as comprised substan- tially in the instructions already given, but declined to give the first. The judge stated to the jury that if they found their verdict for the plaintiffs, he should inquire of them whether they found it on the ground that the defendant executed the note, or the ground of estoppel, the jury found for the plaintiffs, and answered in writing that they found on the ground that the defendant had "ac- knowledged the signature to the note." The defendant then filed a motion for a new trial; but the judge overruled the motion, on the ground that it appeared, by the spe- cial finding of the jury, that they did not find for the plaintiffs on the ground of estoppel, but on the ground that the defendant had acknowledged the signature of the note to be his ; and being of the opinion that upon that ground the verdict was not against the weight of evidence. To the above rulings and refusals to rule the assignee alleged exceptions. Gray, C. J. — Although the signature of Edward H. Jackson was forged, yet if, knowing all the circumstances as to that signature and intending to be bound by it, he acknowledged the signature and thus assumed the note as his own, it would bind him, just as if it had been originally signed by his authority, even if it did not ^ A portion of the reporter's statement of facts is omitted. ■ aii es'jojjpei ai pais. Ui cs, 4 /iiieii ."ft V. Tucker, 104 Mas'- ver of the -n of the C( ^or the ground, an ictions or requested upon th DEMPh vIBERS .^'L'PKEME JUUICJA:,, LOURT OF .Vi.\:?S/ 154 Mas?, 330. f a plate-glass window. The glass was broken by the of one McCullock, while deli' me coal whi' ' "d r>f the defendant by the It is foun; i; was not the defendant s setvant when he broke at the "delivery of the coal by McCullock was the defendant, and that such ratification made McCui •■''-"' agent and servant of the defendant in the delivery On this finding the court ruled "that the defendant, ranon of the delivery of the coal by McCullock became for his negligence in the delivery of the coal " The i to this ruling, • ling was warTt; ring of opinion ;>ili of exec forth all the e on which l -•re, the only qu' ore us is at: )Ag just stated. :ontrivin£T a new code to-dav, w iv tu leiuse jut to i' believe to i ., . . .11 pan . grounds of policy on wi. lard to find, and probabi society. why a master is ' of one who at i\. 1 quest K- - i: Answer. follows: "If, up<. the \' V shaii be satisfied that tlic defer wis forged, by his woriU. acts ' nd that it was n f;"'-^-^ • , .i:iL:,i.,.iii^; thereby to cause ihc 7 s note, and the plaintiffs did so ; '"'''" would i are and ofity. : . .,e to give these -;i not f;: law, because they nd to p' »i''s from asserting proof <• 1 .ting facts. 2, intent ti) -,:iu;' e air- party to act on jents or represi-^ntetions, in addition comprised substnn- ; cclined to g , that if they found their verdict for ' of *-h>^m whether they found it on ;'d the note, or the ground ' ', and answered in defendant had "ac- iiew trial; but the judge nd that it appeared, by the s^ ^ •'•■ not find for the plaintiffs ^v. and that the defendant had ' ' ' s ; and being of the i< not against the ,■;: OI CVi,. M-r: ab ;nee alleged . ;. Jackson v a that signature e signature and flius un, just as if it had been oriiiiaa:' ■''■.'.[ WHAT ACTS CAN BE RATIFIED. 337 amount to an estoppel in pais. Greenfield Bank v. Crafts, 4 Allen 447; Bartlett v. Tucker, 104 Mass. 336, 341. The answer of the jury to the question of the court shows that they found for the plaintiffs upon this ground, and renders immaterial the instructions given or requested upon the subject of estoppel.^ * * *- DEMPSEY V. CHAMBERS. ' 1891. Supreme Judicial Court of Massachusetts. 154 Mass. 330. Holmes, J. — This is an action of tort to recover damages for the breaking of a plate-glass window. The glass was broken by the negligence of one McCullock, while delivering some coal which had been ordered of the defendant by the plaintiff. It is found as a fact that McCullock was not the defendant's servant when he broke the window, but that the "delivery of the coal by McCullock was ratified by the defendant, and that such ratification made McCul- lock in law the agent and servant of the defendant in the delivery of the coal." On this finding the court ruled "that the defendant, by his ratification of the delivery of the coal by McCullock became responsible for his negligence in the delivery of the coal." The defendant excepted to this ruling, and to nothing else. We must assume that the finding was warranted by the evidence, a majority of the court being of opinion that the bill of exceptions does not purport to set forth all the evidence on which the finding was made. Therefore, the only question before us is as to the correct- ness of the ruling just stated. If we were contriving a new code to-day, we might hesitate to say that a man could make himself a party to a bare tort, in any case, merely by assenting to it after it had been committed. But we are not at liberty to refuse to carry out to its consequences any principle which we believe to have been part of the common law, simply because the grounds of policy on which it must be justified seem to us to be hard to find, and probably to have belonged to a different state of society. It is hard to explain why a master is liable to the extent that he is for the negligent acts of one who at the time really is his servant. J A portion of the opinion dealing with a question of bankruptcy is omitted. "The following cases hold that a forgery can be ratified: Greenfield Bank V. Crafts, 4 Allen (Mass.) 447; Howard v. Duncan, 3 Lans. 174; Central National Bank v. Copp, 184 Mass. 328. 22 — Reinhard Cases. 338 RATIFICATION. acting within the general scope of his employment. Probably master and servant are "fained to be all one person" by a fiction which is an echo of the patria potestas and of the English frank pledge. By- ington V. Simpson, 134 Mass. 169, 170. Fitz. Abr. Corone, pi. 428. Possibly the doctrine of ratification is another aspect of the same tradition. The requirement that the act should be done in the name of the ratifying party looks that way. New England Dredging Co. V. Rockport Granite Co., 149 Mass. 381, 382; Fuller & Trim- well's Case, 2 Leon. 215, 216, Sext. Dec. 512, De. Reg. Jur., Reg. 9, D. 43, 26, 13 D. 43, 16, I, § 14, gloss. See also cases next cited. The earliest instances of liability by way of ratification in the Eng- lish law, so far as we have noticed, were where a man retained prop- erty acquired through the wrongful act of another. Y. B. 30. ed. I, 128 (Rolls ed.), 38 Lib. Ass. 223, pi. 9; S. C. 38 ed. IIL 18, En- gettement de Garde. See Plowd, 8 ad fin., 27, 31 ; Bract, fol. 158 b, 159a, 171b; 12 ed. IV 9, pi. 23. But in these cases the defendant's assent was treated as relating back to the original act, and at an early date the doctrine of relation was carried so far as to hold that, where a trespass would have been justified if it had been done by the au- thority by which it purported to have been done, a subsequent ratifi- cation might justify it also. Y. B. 7 Hen. IV 34, pi. i. This decision is qualified in Fitz. Abr. Bayllye, pi. 4, and doubted in Bro. Abr. Trespass, pi. 86 ; but it has been followed or approved so continuously and in so many later cases, that it would be hard to deny that the common law was as there stated by Chief Justice Gascoigne. Godbolt 109, no, pi. 129; S. C. 2 Leon. 196, pi. 246; Hull v. Pickersgill, i Brod. & Bing. 282; Muskett v. Drummond, 10 B. & C. 153, 157; Buron v. Denman, 2 Exch. 167, 188; Secretary of state in council of India v. Kamachee Boye Saliaba, 13 Moore P. C. 22, 86; Cheetham V. Mayor of Manchester, L. R. 10 C. P. 249; Wiggins v. United States, 3 Ct. of CI. 412. If we assume that an alleged principal by adopting an act which was unlawful when done can make it lawful, it follows that he adopts it at his peril, and is liable if it should turn out that his previous command would not have justified the act. It never has been doubted that a man's subsequent agreement to a trespass done in his name and for his benefit amounts to a command so far as to make him an- swerable. The ratihabitio manda to comparohir of the Roman law- yers and the earlier cases (D. 46, 3, 12, § 4; D. 43, 16, i, § 14; Y. B. 30, ed. 1, 128) has been changed to the dogma ocquiparatnr ever since the days of Lord Coke. 4 Inst. 317. See Bro. Abr. Trespass, pi. 113 ; Co. Lit. 207a; Wingate's Maxims, 124; Com. Dig. Trespass, C. i; Eastern Counties Railway v. Broom. 6 Exch. 314, 326, 327; and cases hereafter cited. Doubts have been expressed, which we need not consider, whether this doctrine applied to the case of a bare personal tort. Adams v. Freeman, 9 Johns. 117, 118. Anderson and Warberton, J. J., in e, Cro. £liz. 824 another in - .IS own head, it vv.i. ' mo- to say dy called himself my se; rds as- more, our mere won' - .to the ^h in such cases th^c :<\ the assault was i' '^'='r- ation of the '1 iid not ^" . ler, I Nf, __ ^ , , , _ : .ozo, 42 Mich. 6. As in other v. t they did not amount to such a rau^ .. . ker V. Jerris, 75 Maine 184; Hyde v. Coo; language generally used by judges and ti ions as we have been able to find, is broad : ■■■ the present when the ratification is establisiicd. Ferity own, 7 Gray 464; Bishop v. Montague, Cro. Eliz. 8;:.i: V. Baker, 2 Bl. 832; S. C. 3 Wils. 309; Barker ^ . 866, 868; S. C. 3 "Wils. 368; Badkin v. Powell, -_ . . 479; Wilson V. Tumman, 6 Man. & G. 236, 242; Lewis .^ M. & W. 834; Buron v. Denman, 2 Exch. 167, 188; Bird 4 Exch. 786, 799; Eastern Counties Railway v. Broom, vr4, 326, 327; Roe v. Birkenhead, Lancashire & Cheshire :lailway, 7 Exch. 36, 41 ; Ancona v. Marks, 7 H. & N. 686, lit V. Baldwin, 21 N. Y. 219, 225; Exum v. Brister, 35 : Galveston, Harri-^"-' '^.- San Antonio Ra''""'>' > r^,..--.. xas, 162. Murra ;joy, 2Cliff. 191. rray, 3 Wall, i, 9; .^. . .mi Agency, §§ 45 v'stion remains whethrr the ratification is »^ : .'■ ' bill of e -Cullock : i ,. ant's coa; ofit and • iant afterwards assent, -Cullock was not directed ^^i- ... 10 McCiu as not for the d - benefit if ^ ^nnected with Mc>..u!K);k s employme;v been liable as master if McCullock ; ering thr "' 'lave foi > i-.g ■ v.'ith tl^ -e, but wc ^vit 'I authority ! Id ... :. .. the emplov; lie ^ter and servant from the be?.' 1- - '''<• anomalous liability- for ; liu, 102 Mass. 211. 21;, . '>es to the rel ' ■' ^^'T'^t'^r is ;■ K), it was ag: 53^ RATIFICA within the general w^ .orvant are *'!::" '""'* an echo of the pat' ington V. Simpson, i^ ; Possibly the dnrtrine tradition. Th of the ratify' Co. V. Re well's Ca.- D. 43, 26, The '■■ lishl;: .-tates, 3 V If we a •vvas unlaw i ■tliai. a ijian s .- r^P't for his be)' ::.le. Th-: " tid the €■'■■ -1. 1,128) ■ ■lays of Lor.i v it. 207a; W; Kastcrn Counties case> hfV'^Tifter ■-!<"<: Dc this i.i. rVeeman, 9 j the Co. scope of his er ^oly master '' ' - ill one ] n which is :d of th. edge. By- ne, pi. 428. f the same the act lie in the name ''^t wa- -land Dredging I, 382; Fuller & Trim- ., De. Reg. Jur., Reg. 9, ilso cases next cited. i>iv i!v u.iy ul ratification in the Eng- ed, were where a man retained prop- ' i act of another. Y. B. 30. ed. _,. pi. 9; S. C. 38 ed. III. 18/ En- 1, 8 ad fin., 27, 31 ; Bract, fol. 158 b, ^. But in these cases the defendant's ! g back to the original act, and at an early ' '^ carried so far as to hold that, where lifted if it had been done by the au- .d 10 ha\ ' ' nbsequent ratifi- Y. B. 7 . ; . Thi^ decision -e, pi. 4, and doubted in Bro. Abr. iollowed or approved so continuouslv , that it would be hard to deny that h '■:-'\ by Chief Justice Gascoigne. Godb • i. 196, pi. 246; Hull V. Pickersgill •:. Drummond, 10 B. & C. 153, 15" ", 188; Secretary of state in council a, 13 Moore P. C. 22, 86; Cb- TO C. p. 249; Wiggins v. .. ,, . ,-> adopting an act wh; . ! lawful, it follows that he adoj.. Tould tuni out that his previc e act. It never has been doubr ne in his name ) make him an- oi the Roman law- : M^l, §I4;Y. B. ratur ever since espass, pi. 113 : rrespass, C. 326, 327; ana •t consider, \'. nal tort. A' I'arberton, J WHAT ACTS CAN BE RATIFIED. 339 Bishop V. Montague, Cro. Eliz. 824. If a man assaulted another in the street out of his own head, it would seem rather strong to say that, if he merely called himself my servant, and I afterwards as- sented, without more, our mere words would make me a party to the assault, although in such cases the canon law excommunicated the principal if the assault was upon a clerk. Sext. Dec. 5, 11, 23. Per- haps the application of the doctrine would be avoided on the ground that the facts did not show an act done for the defendant's benefit. Wilson V. Barker, i Nev. & Man. 409; S. C. 4, B. & Ad. 614, et seq.; Smith V. Lozo, 42 Mich. 6. As in other cases it has been on the ground that they did not amount to such a ratification as was neces- sary. Tucker v. Jerris, 75 Maine 184; Hyde v. Cooper, 26 Vt. 552. But the language generally used by judges and text writers, and such decisions as we have been able to find, is broad enough to cover a case like the present when the ratification is established. Perley V. Georgetown, 7 Gray 464; Bishop v. Montague, Cro. Eliz. 824; Sanderson v. Baker, 2 Bl. 832 ; S. C. 3 Wils. 309 ; Barker v. Bra- hani, 2 Bl. 866, 868; S. C. 3 Wils. 368; Badkin v. Powell, Cow- per, 476, 479 ; Wilson v. Tumman, 6 Man. & G. 236, 242 ; Lewis V. Read, 13 M. & W. 834; Buron v. Denman, 2 Exch. 167, 188; Bird V. Brown, 4 Exch. 786, 799; Eastern Counties Railway v. Broom, 6 Exch. 314, 326, 327; Roe v. Birkenhead, Lancashire & Cheshire Junction Railway, 7 Exch. 36, 41 ; Ancona v. Marks, 7 H. & N. 686, 695; Condit V. Baldwin, 21 N. Y. 219, 225; Exum v. Brister, 35 Miss. 391 ; Galveston, Harrisburg & San Antonio Railway v. Dona- hoe, 56 Texas, 162. Murray v. Lovejoy, 2 Cliff. 191, 195 ; see Love- joy V. Murray, 3 Wall, i, 9; Story on Agency, §§ 455, 456. The question remains whether the ratification is established. As we understand the bill of exceptions, McCullock took on himself to deliver the defendant's coal for his benefit and as his servant, and the defendant afterwards assented to McCullock's assumption. The ratification was not directed specifically to McCullock's trespass, and that act was not for the defendant's benefit if taken by itself, but it was so connected with McCullock's employment that the defendant would have been liable as master if McCullock really had been his servant when delivering the coal. We have found hardly anything in the books dealing with the precise case, but we are of opinion that consistency with the whole course of authority requires us to hold that the defendant's ratification of the employment established the relation of master and servant from the beginning, with all its inci- dents, including the anomalous liability for his negligent acts. See Coomes v. Houghton, 102 Mass. 211, 213, 214; Cooley Torts 128, 129. The ratification goes to the relation, and establishes it ah initio. The relation existing, the master is answerable for torts which he has not ratified specifically, just as he is for those which he has not com- manded, and as he may be for those which he has expressly forbidden. In Gibson's Case, Lane 90, it was agreed that, if strangers as servants 340 RATIFICATION. to Gibson, but without his precedent appointment, had seized goods by color of his ofhce and afterwards had misused the goods, and Gib- son ratified the seizure, he thereby became a trespasser ab initio, al- though not privy to the misusing which made him so. And this proposition is stated as law in Com. Dig. Trespass, c. i ; Elder v. Bemis, 2 Met. 599, 605. In Coomes v. Houghton, 102 Mass. 211, the alleged servant did not profess to act as servant to the defendant, and the decision was that a subsequent payment for his work by the de- fendant would not make him one. For these reasons, in the opinion of a majority of the court, the exceptions must be overruled. Exceptions overruled.^ Section 2. — Requisites of Ratification. TRUEBLOOD v. TRUEBLOOD. 1856. Supreme Court of Indiana. 8 Ind. 195. Perkins, J. — Bill in chancery, under the old practice, to compel a specific performance, and to set aside a fraudulent deed. Bill dis- missed. The facts of the case, so far as material to its decision, are as follows : In 1845 William Trueblood was an infant, and owner of a piece of land. At that date Richard J. Trueblood, the father of said William, executed a title-bond to one Nathan Trueblood, whereby he obligated himself to cause to be conveyed to him, said Nathan, the piece of land belonging to William, after the latter should become of age. The conveyance was to be upon a stated consideration. The bond is single, simply the bond of Richard, and William is nowhere men- tioned in it as a party, but his name is signed with his father's at the close of the condition, as may be supposed, in signification of his assent to the execution of the instrument by his father. We shall so treat his signature to the bond. After William became of age, it is claimed that he ratified the bond, ^ "He that receiveth a trespasser and agreeth to a trespass after it be done, is no trespasser, unless the trespass was done to his use or for his benefit, and then his agreement subsequent aniounteth to a commandment ; for in that case, omnis ratihabitio retrotrahitur, ct mandato cEquiparatur." 4 Co. Inst. 317. "Chief Justice Tindall, in Wilson v. 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 detriment 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 follow from the same act done by his previous authoritv.' " Burks, J., in Forbes v. Hagman, 75 Va. 168, 178. ,-.1 '. •;: :terv\ai(i.- viU ami conveyed i ' *■ Lock- t ! ij ;, who had notice, etc. This h. :.ve the ' -! to Lockridj;'e set aside, and ;• Nathan iru'jblood, pursuant to the terms of ■ Tlie court below, as we have stated, refus' -et, and held, as council inform us. ■'•"'' *^' •■ hon^ ^-c.r. ■>£ ratification by William Truebl vhether it w tion in the cr. n, w^e need n- claimed evidence that such the bond is not in terms tlv not, by virtue of its express provisions, be sued upon it. V. father signs his name to articles of apprenticeship of his son, ou..^.. to sigTiify his assent to them, he cannot be a party to a suit upon the -tides. Brock v. Parker, 5 Ind. 558. If the bond, then, can in any light be regard>ed as the contract of in Trueblood, it must be because his father may be cor yent in executing it. Can, then, an infant, after arriving ratify the act of his agent, performed while he was an infant ? This depends upon whether his appointment of an agent is a void or void- able act. If the former, it cannot be ratified (State v. State Bank, 5 Ind. 353") ; if the latter, it can be (Reeve's Dom. Rel. 240). In the first volume of American Leading Cases (3d ed.), 248, et seq., the doctrine is laid down, as the result of the American cases on the ^:-:b'-ct, that the only act an infant is incapable of perforrrirjg- as •; is the appointment of an agent or attorney. ^ ^he (i .,v . ;> founded in solid reasons, they admit, may ^ but asjiert that there is no doubt but that it is the law. S ^h- -■' cted. seems to be held the same in England. In I & W. 778, a case slightly like the present is . y in argument said: "Here a tenancy br. Ave. children, or by Hugh Thomas acting ; '^plied: "That is the fallacy of your m agent cannot bind an infant. If at^ nts ke a lease, it does not bind the infart his 1 him. There is no doubt about tt of '■)d, must be his own per=' id ersonal act of the infant, ii , ^ simply voidable. But tV ■ r d to act as such, is void, ; and V. Kuns, 8 Blackf, 34 • must, therefore, be affi- ■' '-'Mt authority by another ,.,...,^1 ■\ Whitney v. Dutch, i.: Armi- 340 RATIFICATION. to Gibson, but without his precedei by color of his office and afterwards sou ratified the seizure, he thereby though not privy to the v proposition is state'! as In . Bemis, 2 Met. alleged servani the decision w fendant wouh' of a majoi Except; t, had seized goods ^;j. the goods, and Gib- trespasser ab initio, al- ^ so. And this c. I ; Elder v. i02 Mass. 211, the ) the defendant, and :nt payment lor his work by the de- c. For these reasons, in the opinion Kceptions must be overruled. Section 2 ianu u The c » is single, •- tioned in it ... close of the c assent to the ^ so treat his sig ,A iter William c?ise, ouinis ratihabttit stice Tiivi ■ les the ni jv .■ ■ li ..ul assiv witbi-tt any pre sir Ji extent as by an uficatiou. ' )OD V. TRUEBLOOD. "ouRT OF Indiana. 8 Ind. 195. iiicery, under the old practice, to compel ': to set aside a fraudulent deed. Bill dis- ise. so far as material to its decision, are ii wa:. an uiiaiU, Aiui nwner of a piece of T. Trueblood, the father of said William, >" itlian Trueblood, whereby he obligated :d to him, said Nathan, the piece of ler the latter should become of age. u a stated consideration. The bond .chard, and William is nowhere men- . ime is signed with his father's at tin- be supposed, in signification of 1: rniment by his father. We sh; claimed that he ratified the bon ♦^h to a trespass after it be done ' his use or for his benefit, :r r; ronimandment; for in t: •.ilur." 4 Co. Inst & Gr. (46 Eng. C done for another V' oiher person. ict of the pri'. ' ■■shed rule ' ' 'w. tor hh deir'nient , V '/luract, to t'- " ■w from the ' TTrjrrm.ci 7f REQUISITES. 341 and afterwards sold and conveyed the land to another, Robert Lock- ridge, who had notice, etc. This bill was filed in order to have the deed to Lockridge set aside, and a conveyance decreed to Nathan Trueblood, pursuant to the terms of the bond. The court below, as we have stated, refused to enter such a decree, and held, as council inform us, that the bond was not susceptible of ratification by William Trueblood; and whether it was or not is the important question in the case ; for if the bond was not susceptible of such ratification, we need not inquire into the alleged facts which it is claimed evidence that such an act had been done. As we have seen, the bond is not in terms the bond of William Trueblood. He could not, by virtue of its express provisions, be sued upon it. Where a father signs his name to articles of apprenticeship of his son, simply to signify his assent to them, he cannot be a party to a suit upon the articles. Brock v. Parker, 5 Ind. 538. If the bond, then, can in any light be regarded as the contract of William Trueblood, it must be because his father may be considered his agent in executing it. Can, then, an infant, after arriving at age, ratify the act of his agent, performed while he was an infant? This depends upon whether his appointment of an agent is a void or void- able act. If the former, it cannot be ratified (State v. State Bank, 5 Ind. 353) ; if the latter, it can be (Reeve's Dom. Rel. 240). In the first volume of American Leading Cases (3d ed.), 248, et seq., the doctrine is laid down, as the result of the American cases on the subject, that the only act an infant is incapable of performing as to contracts is the appointment of an agent or attorney. Whether the doctrine is founded in solid reasons, they admit, may be doubted; but assert that there is no doubt but that it is the law. See the cases there collected. The law seems to be held the same in England. In Doe v. Rob- erts, 16 M. & W. 778, a case slightly like the present in some respects, the attorney in argument said : "Here a tenancy has been created, either by the children, or by Hugh Thomas acting as their agent." Parke, B., replied : "That is the fallacy of your argument. An agreement by an agent cannot bind an infant. If an infant appoints a person to make a lease, it does not bind the infant, neither does his ratification bind him. There is no doubt about the law ; the lease of an infant, to be good, must be his own personal act." So here, had the bond been the personal act of the infant, he could have ratified it. It would have been simply voidable. But the bond of his agent, or one having assumed to act as such, is void, and not capable of being ratified. See Hiestand v. Kuns, 8 Blackf. 345. The decree below must, therefore, be affirmed with costs. ^ ^ A contract made without authority by another for an infant may be ratified by him after coming of age. Whitney v. Dutch, 14 Mass. 457. Contra: Armi- tage V. Widoe, 36 Mich. 124. 342 RATIFICATION. STETSON V. PATTEN et al. 1823. Supreme Judicial Court of Maine. 2 Greenl. 358. This was an action of covenant upon an agreement under seal, signed by the defendant, and by "Simeon Stetson for Amasa Stetson" the plaintiff, by which the defendants agreed to enter upon certain unimproved lands for the plaintiff in the plantation of Stetson in this county, and make two farms thereof, and pay certain moneys to the plaintiff with interest annually ; in consideration whereof the plaintiff was to make, execute and deliver to them a sufficient warranty deed of the same lots. In the instrument declared on, the said Simeon was not named, except in the signature as above, but the covenants were wholly in the name of the plaintiff". In a case stated by the parties it was agreed that said Simeon had not any authority under the hand and seal of the plaintiff to sign and seal the instrument declared on ; but that living in the vicinity of the plaintiff's lands in this county, he had been requested by the plaintiff, who is his brother, to superintend and manage his interests relative to said estate ; — and that pursuant to this request he made and executed the deed declared on, in behalf of the plaintiff, who resides in Massachusetts, and which he afterwards delivered to the plaintiff. It was further agreed that another deed of the same tenor and date was made and delivered to the defendants, v/ho in pursuance of the agreement^ entered and made improvements upon the land ; and that about three years after the date of the agreement they settled an ac- count with the plaintiff, and applied a balance due to them on account toward the payment of the interest due on said agreement, which the plaintiff accordingly endorsed thereon. Hereupon the question was whether the plaintiff was bound by this agreement, — and if not, whether it was obligatory on the defendants ? Mellen, C. J., delivered the opinion of the court. It is agreed that Simeon Stetson had not any authority under the hand and seal of the plaintiff, to execute the instrument declared on ; and it therefore was not the deed of Amasa Stetson. No authorities need be cited to shew that when an instrument under seal is executed by attorney, the attorney must be authorized by deed under the hand and seal of the principal. This is admitted by the counsel for the plaintiff, but he contends that in consequence of certain acts which have been done by the principal since the execution of the instrument, it has been sanctioned and adopted by him, and thereby has become his deed. The circumstances relied on as proof of such ratification are, his acceptance of the indenture from the hands of his brother after its execution, and the endorsement on the back of the instru- ment of money received from the defendants on account of the con- tract. With respect to these facts, they cannot amount to anything V .re than a ^iiv ii.,i' and ratific?.t''m iT^adc bv parol; and such ratifi- i could n.ii be more avail' '.thority given before lu itistrunient was signed ^ -■'■> '- ^>t no import- uce. The plaintiff therei ind. * * * ^' jnsuit entered.^ HAWKIN "S-,J --^ PREME C -By an act approved March 19, 189; id perjuries," § 2513 Revised Statutes 1879, was r; I, .< the following clause to that section: "And no conti.xv.. le of lands made by an agent shall be binding upon the principa.' - such agent is authorized in writing to make said contract." ■« an action in the nature of a bill in equity to specially enforce a contract of an agent in the name of his principal for a sale .ade by the agent, not within the terms of such agent's writ- ithority, upon the ground of a verbal ratification of such sale , ;;.c principal after he was informed thereof. In the facts of the ■ase there is no element of equitable estoppel. Plaintiff's evidence i-d at most only to prove that the defendant when informed by of the sale, did not manifest to the agent any disapprobation '^f . but directly thereafter sold to another person, c trial court ruled that the written authority rnn^t to make the contract which he does mak*. " '^ and unless it does so the ratification ' bind him, citing Story on Agency 1 Line v. Mfg. Co., 12 N. H. 205, in v.l .tion of an act done by one assumini? : is equivalent to a prior authority. ' ■)f any particular *" ri-; or mode is nc" ' e first instar ;an be no v; anner." ' law, where a contract is rer^ da ■ • ' be under seal, i Am 136 : and authorities in no^ icy, LuiitKc m note 6, same page. ! ii.- V. Goodrich, 9 Wend. (N -• N. H. 20"?. : bUA V. rV' 1823. SUPREM. OF Maine. 2 Greenl. 358. This was a^ signed by the ci the plaintiff, b unimproved la; county, an' plaintiff \\ was to mr; of the sa towara ■. .. plaintiff '.,■ Hereiip- agreement, M ELLEN, L. If '•eeo I]'. ed to sh. ■n,^y, the ati al of the prii iff, but he C(>: een done by ' . . been sanctioned ■:d. The circum are, his acceptance of after its execution, an> ment of money receive "';th resper-; ' ■ L upon an agreement under seal, Simeon Stetson for Amasa Stetson" idants agreed to enter upon certain if in the plantation of Stetson in this ■ reof, and pay certain moneys to the '11 consideration whereof the plaintiff them a sutlicient warranty deed ' t declared on, the said Simeon .gnature as above, but the covenants wv. plaintiff. rties it was agreed that said Simeon had e hand and seal of tlie plaintiff to sign lared on; but that living in the vicinity tis county, h "quested by the , to superinti e;^e his interests that pursuant to this request he made and on, in behalf '■■'< ^^^'■' plaintiff, who resides '1 he afterwrs red to the plaintiff*. -roller deed -i v.a- same tenor and date viefendants, who in pursuance of the • ements upon the land ; and that lie agreement they settled an ac- ne d a balance due to them on account est due on said agreement, which the hereon. '1 ether the plaintiff was bound by this it was obligatory on the defendants ? 'ion of the court. had not any authority under the nite tlie instrument declared on ; Amasa Stetson. No authorities istrument under seal is executed 1, ,,; -f.,1 K,r ,^.....1 under the hand- i ounsel for the ^rtain acts which :i of the instrument, thereby has become of such ratification !(- tiands of his brother the back of the instru- oti account of the con- uot amount to anythir-r REQUISITES. 343 more than a sanction and ratification made by parol ; and such ratifi- cation could not be more availing- than a parol authority given before the instrument was signed, which, as we have seen, is of no import- ance. The plaintiff therefore cannot prevail on this ground. * * * Nonsuit entered.^ HAWKINS V. McGROARTY et al. 1892. Supreme Court of Missouri, no Mo. 546. Brace, I. — By an act approved March 19, 1897, the statute of "frauds and perjuries," § 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 agent is authorized in writing to make said contract." This is an action in the nature of a bill in equity to specially 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 writ- ten 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 authorize the agent to make the contract which he does make, in order to bind the principal, and unless it does so the ratification thereof must be in writing to bind him, citing Story on Agency (9th ed.), § 242, and Despatch Line v. Mfg. Co., 12 N. H. 205, in which it was held that "a ratification of an act done by one assuming to be 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 Am. & Eng. Ency. Law 436 ; Story on Agency, § 49, and authorities in note 3 ; Mechem on Agency, § 137, and authorities in note 6, same page. And upon the same prin- ^ Accord: Blood v. Goodrich, 9 Wend. (N. Y.) 68; Despatch Line v. Bellamy Mfg. Co., 12 N. H. 205. The Massachusetts rule is that the unauthorized execution of a sealed in- strument can be ratified by parol. Cady v. Shepherd, 11 Pick. (Mass.) 400; Mclntyre v. Park, 11 Gray (Mass.) 102. Regarding ratification by partnership of a deed executed by one partner ■without authority, see McDonald v. Eggleston, 26 Vt. 154. 344 RATIFICATION. ciple the last author, stating the general rule says, "If, therefore, sealed authority was indispensable, sealed ratification must be shown ; and if written authority was required, written ratification must appear." § 136. In Pollard & Co. v. Gibbs, 55 Ga. 45, it was held that "where a crop lien for fertilizers is executed by an agent who acts without authority from the principal, and in his absence, and the lien is under seal, proof of the ratification by the principal must be in writing and under seal." In Ragan v. Chenault, 78 Ky. 546, under a statute which provided that "no person shall be bound as the surety of another by the act of an agent, unless the authority of the agent is in writing, signed by the principal ;" it was held that subsequent verbal ratification would not bind the surety; that to so hold would be to defeat the object of the statute. In Palmer v. Williams, 24 Mich. 328, under a statute of frauds, the same as our own, before the adoption of the amendment set out, it was held that "ratification, if not made in writing, with due knowl- edge of the circumstances, could only be made out by such conduct on the part of the principal as would equitably estop him from insist- ing on his rights. And such an estoppel woiild not be made out unless defendants had been so far misled by him to their own preju- dice, that justice demanded their protection against him. * * * In the absence of any conduct designed or calculated to mislead, mere delay will not deprive an owner of his estate, legal or equitable, until barred by some clear rule of equity." There is no such bar in the facts of this case. Hiemans was au- thorized in writing by the defendant Maull to sell his property for $1,400. On the ninth of July he sold to plaintiff for $1,300, who paid Hiemans $40 earnest money, and received from him a receipt for that amount on acount 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 sold to McGroarty, and did not understand from its contents that his agent had actually efifected a sale. However the truth of this matter may be, he never received from his agent the earnest money of the plain- tiff ; 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 understand 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 lere is i. ....:;^% bind ti.. ., question, whicl; affirme< : COMBS D OTHERS R Judicial Cour SACHUSETTS. 12 All •■onj^ht t ' the price agreed to be paid to the \ices in two recruits and securing their 'ilitary ^. : . - :. the Unit'"' -fiif"; ;i.. :, i,:i'v .••>* vn of Hawley. 'i.i! ill -lie superior court, before L-. ki, j,. ;.(c -iHii.i'.iu m \ idence tending to show that in August, 1864. the defend- e of a fund eonimitted to them for '" ose of ■.its for said tov.-n iv, -^vch "service, anci • wfr? work a ton as t:: .- ... by them ^. n in thei' riim, agreeing ic for each recruii 'le number of two i- • -i that, if nr n given to Dunton t the plan'' request to -'«t U them in the mihtar •h. 374- seileci authority wj irom the princ. of the rslifi'-.r seal." InK that "; a/' pi; ij.' Hiemaiis ^ amooint Oil ' aull a let^ arm ■.int receiv( never, rnornent that he h; ix, i.^refore, iust be shown ; ritication rau. ' ■'where a crop hout authority . and tae hen is under seal, proof ;''i!;ci Vh "ti vvn'f'np' roM'1 1 1 tt"' '■■' ''" ui;Uuc ',\iiit.M (jiuviuce! d another by the act of ■lied by the would not would be U> defeat the object of ti h. 328, iinder a statute of frauds, the I ioption of the amendment set out, it not made in writinir. with due knowl- ' ^ ' ' ' ' / such conduct m from insist- . be made out . : li. ■ i . :eii' own preiii- their protection agamst him. ' .'i^c;<.-n,^,l -w , '.ulated to mislead, ...v iee^al or equitable, un' "mans was a- i Alauli t>> sed his property for o Qlaintiflf for $1,300, who paid ■1:1 liim a receipt for th:. ^ •' immediately wro; when he explahjc uaiion. Maull sold l^-- i' of the eleventh. He ' :s sale, and did n old to McGroart it his agent h;; this matter mn .• of the plaiv :.(>m McGroari 'who collected it . ty, which Ma paid, and ti" in d^. '^i-flrtoi; . ' made by H' REQUISITES. 345 secure a performance of the contract, steadily refused to recognize, ratify or confimi the same. Under the statute, as it now reads, requiring written authority for the contract which the agents m.ake, 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 perform the contract in question, which his agent Hiemans had no written authority to make. The judgment is affirmed. All concur.^ COMBS V. SCOTT and others. 1866. Supreme Judicial Court OF Massachusetts. 12 Allen 493. Contract, brought to recover the price agreed to be paid to the plaintifif for his services in obtaining two recruits and securing their enlistment in the military service of the United States, as a part of the quota of the town of Hawley. At the trial in the superior court, before Lord, J., the plaintiff in- troduced evidence tending to show that in August, 1864, the defend- ants had charge of a fund committed to them for the purpose of obtaining recruits for said town in such service, and that they were engaged in that work and employed one Dunton as their agent, who was authorized by them to employ the plaintiff in their behalf, and did so employ him, agreeing to pay $550 for each recruit that he should obtain to the number of two or three ; and that, if no previous author- ity had been given to Dunton to employ the plaintiff in their behalf, they ratified the employment of the plaintiff after being informed that he had procured two recruits and secured their enlistment upon the quota of Hawley, and agreed to pay him $1,100 therefor. There was conflicting evidence in respect to these matters, and the defendants also introduced evidence tending to show that, if the defendants made a formal ratification of the act of Dunton in emplo3dng the plaintiff, it was done under a misapprehension and mistake as to material facts, referred to in the prayers for instructions. The defendants requested the following instructions, amongst others : I. Services rendered for hire, as a broker or agent, in procuring recruits and enlisting them in the military service by one who had no ^Accord: Hammond v. Hannin, 21 Mich. 374. Under a statute providing "that no person shall be bound as the surety of another by the act of an agent, unless the authority of the agent is in writing, signed by the principal," it was held that an unauthorized contract of surety- ship may be orally ratified. Ragan v. Chanault, 78 Ky. 545. 346 RATIFICATION. other interest in filling the quota of the town toward which they were credited, do not furnish a legal cause of action to recover the price. 2. Ratification is not effectual unless made with full knowledge of all material facts. In this case, it would be a material misappre- hension if the defendants supposed Dunton waived any claim in his own behalf, in favor of the plaintiff, or if the plaintiff's agent misrep- resented the day of putting in the men, and there was meanwhile a change of price. 3. If there was such a material mistake, it makes no difference how it arose, or whether the defendants might have ascertained the contrary to be true. The judge declined to give the first of the above instructions; he gave the second, adding, after the words : "in favor of the plaintiff," the following words : '"when, in fact he had not done it ;" and he gave the third, adding at the end, "unless it arose from the negligence of the defendants." The jury returned a verdict for the plaintiff, with $1,201.75 dam- ages ; and the defendants alleged exceptions. BiGELOW, C. J. — * * * The general rule is perfectly well set- tled, 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 knowledge of all material facts, and that ignorance, mis- take or misapprehension 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, after con- siderable research, have we been able to find that such 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. Ratification of a past and completed transaction, into which an agent has entered without authority, is a purely voluntary act on the part of the 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 ob- ligation to ratify it. nor will he be bovmd to the performance of it." I 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 'vliO iS is not '.vithin the reach ' • !,> act-iun whicli he seeks to -o ■ .'K-.rborize it, and i'^, fm ^ lOt mean to • hut his eyes '■ control, an ' ' horized : i? that 'ized caniioi 1 , charged ha , , _ _ . . . , rial tacts, .althoug-h he niay have wholly omitted to make other persons concerning them, and his ignorance and m; sion initrht have been enlightened and corrected by the ; 'lis part to ascertain them. The mistake at the ir p a«=i'.'npticn that any ?nrh diligerce was required ^s point, the stated in a v 1 the jury' to : ■ rig-lits and parties. ELLIOTT N- r'Rn^l^nFP rr d instruction gi\ irt at thi follows: ""If a m. businv='>. ersons for his or their benelit, and i' '^'^ the fruits of his agency he th • ■' !iim who transacts the businc ■ :, but a.'5 lilt iiicad oi i>oth paiiies, Oi ot eii i^ect see ingrahaiT' ^. i<.atiiicaUori f nil material fr.. ion if tlv. 3- H trav has ever case, A'l -ound Di- n Uiey were the nrice. ■ciTiy claim in his. . . . I . li 's agent misrep- Te was meanwhile a :\ it makes no difference have ascertained the >! the above instructions; he ■s: "in favor of the plaintiff," I - had not done it;" and he gave '-om the negligence of tor tiie piaintiii, with $1,201.75 dam- 'd exception? r. ■-■•■-> -rfectly well set- Ti agent, in order ' ' M, must have been made :,cu^ii.:, ••'■] that ignorance, mis- of the e- re um stances relating ' ';t>! .1' ' _n ratified will absolve ; ; .1 : r supposed adoption of iithorized acts of an agent. We know such as was engrafted upon it in the lUt present case. Nor, after con- . 1. able to find that such qualification • approved text writer or adjudicated ■ "~ " us to be inconsistent w'lh 4 a.ieame>. bound to show that u to he binding on t^- facts were made k -certaining tl- tion, into which an voluntary act on tl^e ^^aiion rests upon him to sanr' 1 > make inquiries concerning it. !ty to do an act, there can be Ti, . ■■-e doctrine is well t in the name of be mider no ' ronnance of Agency 171, on a ratifi' circumstances as in Jaw '"^ to it that all m.aterial uaking inquiries and 'lo is under ' ' "' REQUISITES. 347 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 knowl- edge 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 wilfully ignorant or purposely shut his eyes to means of information within his own pos- session and- control, and thereby escape the consequences of a ratifi- cation 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 mistaken mate- rial facts, although he may have wholly omitted to make inquiries of other persons concerning them, and his ignorance and misapprehen- sion might have been enlightened and corrected by the use of dili- gence on his part to ascertain them. The mistake at the trial con- sisted in the assumption that any such diligence was required of the defendants. On this point, the instructions were stated in a manner which may have led the jury to misunderstand the rights and obliga- tions of the parties. Exceptions sustained.^ ELLIOTT, C. J., IN CROWDER et al. v. REED. 1881. Supreme Court of Indiana. 80 Ind. i. The third instruction given by the court at the request of the ap- pellee is as follows : "If a man transacts business for another, or for other persons for his or their benefit, and the principal accepts the benefit and the fruits of his agency he thereby ratifies and adopts the agency of him who transacts the business and is bound by his acts and the legal consequences thereof in the transaction of such business. Therefore, if James B. Patton, acting without authority from any one, but as the friend of both parties, or of either party, procured for ^Accord: Trustees of Easthampton v. Bowman, 136 N. Y. 521; Daley v. Iselin, 218 Pa. St. 515; Woods v. Palmer, 151 Mich. 30. "The second request sought to incorporate into the doctrine of ratification a new element, namely, that, in order to make a valid ratification, the principal must have known, not only all the facts, but also the legal effect of the facts, and then, with a knowledge both of the law and facts, have ratified the con- tracts by some independent and substantive act. This request also was prop- erly refused. It is sufficient if a ratification is made with a full knowledge of all the material facts." Allen, J., in Kelley v. Newburyport, etc., R. R. Co., 141 Mass. 496, 4q8. To same effect see Ingraham, J., in Hanks v. Drake, 49 Barb. (N. Y.) 186, 202. 348 RATIFICATION. the plaintiffs the notes and mortgages sued on, and they accepted the same, they thereby ratified all of Patton's acts in and about the pro- curing of said notes and mortgage, and if said notes and mortgage were given by the defendant upon the agreement or understanding that her son, William Reed, was not to be prosecuted, then the notes and mortgage are void." This instruction is subject to serious objection. If Patton was the agent of the appellee and not of appellants, the doctrine of ratification does not apply. If he was not avowedly acting as their agent, they cannot be said to have ratified his act. The law upon this subject is thus laid down by a text-writer : "One other consideration is impor- tant to be borne in mind. It is that a ratification can only be effectual between the parties, when the act is done by the agent avowedly for or on account of the principal, and not when it is done for or on account of the agent himself, or of some third person." Story Agency, § 251a. In Meiners v. Munson, 53 Ind. 138, this doctrine is approved and the following statement of the rule is quoted from i Chitty Cont. 293 : "But where the party making the contract had no authority to contract for the third person, and did not profess, at the time, to act for him, it seems that the subsequent assent of such third party, to be bound as principal, has no operation." Under the evi- dence in this case the instruction was, upon this point, entirely too broad. If Patton was the appellee's agent and the instruction extends to both parties, for the language is "either party." the appellants, whose interests were hostile, could not be justly said to have ratified his acts by receiving- and retaining what was tendered them. The instruction leaves out of consideration the element of knowl- edge. If, as appellants claimed, the notes and mortgage were deliv- ered to them in consideration that they would pay William Reed's debt to the express company and release him, they would not be bound by an act of Patton, of which they had no knowledge. This would certainly be so if he was the appellee's agent and not theirs. The instruction declares that they would be bound by a subsequent ratification whether Patton was their agent, or was the agent of the appellee, and is, therefore, plainly erroneous. It is in general true, that a principal is not bound where the rati- fication is made in ignorance of material facts. Manning v. Gasharie, 27 Ind. 399. If the appellants acted in ignorance of what Patton had said to the appellee, and in good faith believed that the notes and mortgage were executed to them in consideration of their payment of the debt of William Reed to the express company, and his release from liability to them to the extent of the sum evidenced by the notes and mortgage, they cannot be justly said to have ratified an illegal agreement of which they were entirely ignorant.^ ^Accord: Commercial Bank v. Jones, 18 Tex. 811; Wycoff v. Davis, 127 la. 399. ?49 SHOxMNGER amd i\ 1889. Supreme Court of Err* 57 Conn. 42. ' Action to recover for a .^ht to t'- of Waterbury, and tried to ..; '^radsiic... found and judgment rendered and ap: Imt. The case i. .*iis, J. — The pla, -ars de^^ mubicai instruments at iSt 't\ a bra bury, which from 1880 to ' ■; was un and management of one Henry R. Day, the general agent of the plaintiff. Day was paid a regular salary and received in addition a commission on all sales made by him for the plaintiffs. While as such agent he sold from the store in Waterbury one of iintiff'? pianos to the defendant for the agreed price of three •^ed to be paid for wholly by certain ; • due from Day to the defendant on future stock transactions between the defendant and Day on his '->ri'''.«:e account. The defendant had been for a considerable time ed in the business of a stock broker, and as such, had had '.iS dealings with Day. Tl: ' ' Ills had no actual ' ' -Ige sale of the piano until a. had left their i- -.t. He iiad reporter! to them that tiic piano w.- ant. But the finding is explicit tha' the \.. of the terms of the sale after ; their the bringing of this suit. The u - .....t earned ... stock transactions on Day's account to the amount r.i ' ,ghty-fiv€ dollars, which were credited by ^' 'f., but not paid over to the plaintiffs, h^ ■ ■ the plaintifi sums, :v, ;vc ' '• h all the pi ver rec( : -lice piano. Day was a detauiter in his « piain- aii amount exceeding five thousan-l < manifest wrong and injustice pe: 'its ' fendant and Day, make us r ^^f 'ble to the remedy cJiosen by m iiy may fail m obtainiv '■'■ arises from a mistake as f -j .ffs were informed of tl - ict .... .1,,-. gj^ig Qf .1, ey the arr; • :k :iai. tne) ha. m ignorance o5 348 the pianilnis tiie not' same, they thereby r curing of said note'- were given by the ' that her son, Wi' and mortgage a: This instructv agent of the , does not api cannot 1 thus lai' tant to 1 betweev; or on ; ana mc n\ and edc- ercu n • - debt to bound by a- would certn Thp iTi~tr:v'[ 'T '■;> n(.i:i5i vv: . and is, ,a gener, fic.jtioii is made . 2y fnd. 399. If said to the app-. morrjrnge were > ot iV,r debt of Vv froi-^-- liability to thei' and mortgage, they agreement of which ' Accnrd: Commercia! jB. ecuted, then the notes objection. If Patton was the 1 iuts, the doctrine of ratification dly acting as their -agent, the) act. The law upon this subject is One other, consideration is impor- :it a ratification can only be effectual is done by the agent avowedly for md not when it is done for or on L, or of some third person." Story ^'. Munson, 53 Ind. T38, this doctrine is ' ment of the rule is quoted from '■ ■ party making the contract had n ■ ! per.son, and did not profess, at the ._ : the subsequent assent of such third xil, has no operation." Under the evi ^tion was, upon this point, entirely tc^^ el lee's agent and the instruction extend is "either party," the appellani (' not be justly said to have ratifie :;• what was tendered them. :onsideration the element of know! .'d, the notes and mortgage were deli\ tnat they would pay William Reed' ;d release him, they would not Ik 'lich they had no knowledge. Th: ihf* appellee's agent and not their- idd be bound by a subsequen agent, or was the agent of tli erroneous. ' "nal is not bound where the rati 'al facts. Manning v. Gashariv ( ignorance of what Patton ha' .:h believed that the notes an> ■of their paA ■V, -vd h^= r -he sum said to 1 _. y ignorant.' 8 Tex. 8ri; Wycoff v. Da\ « I REQUISITES. 349 SHONINGER and Another v. PEABODY. 1889. Supreme Court of Errors of Connecticut. 57 Conn. 42. Action to recover for a piano sold ; brought to the district court of Waterbury, and tried to the court before Bradstreet, J. Facts found and judgment rendered for the plaintiffs, and appeal by the defendant. The case is fully stated in the opinion. 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 plaintiff. Day was paid a regular salary and received in addition 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 plaintiff's pianos to the defendant for the agreed price of three hundred dollars, which was agreed to be paid for wholly by certain commissions that mignt become due from Day to the defendant on future stock transactions between the defendant and Day on his private account. The defendant had been for a considerable 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 defend- ant. But the finding is expUcit 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 one hundred and eighty-five dollars, which were credited by Day on the piano account, but not paid over to the plaintiffs. In the year 1886 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 plain- tiffs to an amount exceeding five thousand dollars. The manifest wrong and injustice perpetrated upon the plaintiffs 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 num- ber requires adherence to sound general principles, even though in a given case a party may fail in obtaining redress. The whole trouble in this case arises from a mistake as to the plaintiff's 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 350 RATIFICATION, 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, i American Leading Cases, 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 v. Palmer, 6 Conn. 100; Newell v. Hurlburt, 2 Vermont 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 par- ticular both as to price and as to the terms of paying the price. The leading case on this subject is Smith v. Hodson, 4 T. R, 211, where it was held that if a bankrupt, on the eve of his bank- ruptcy, 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 con- tract 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 exist- ence of the contract could not be affirmed to promote the purpose of a recovery, and at the same time be treated as a nullit}- in order to shut out the opposite party from a defense otherwise open to him. In Butler v. Gable, i Watts & Serg. 108, the trustees in a do- mestic attachment, which is a proceeding in the nature of a com- mission 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 transfer 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, f;foui?i accept uie couiraci us We will select a iew only oi the numerous cases a- pies upon which we base our .ninicit One of the most recent c ^' -, decided in August. 1 in Vol. 6 of Nev y Dan forth. J., i jtion is assuinp.sK that he received trorn the plamiiii' : . no question as to the price. This ma .. .inst him; and though technically it does not char < 'J proofj it devolves upon him, if he would avoid the i c- to give some reason why. The explanation offered by tl. ant is. tliat though he received the ' ' he plaintiit, lie .- ceivP'J Ih'.ni Vjy virtue of an expre:- v/ith an agent <. . ^an of tlie plaintiff, one was that .^ 'fa hke kind, which the • .id, should be taken in payment. This agreement with the agent is not ques- tioned, but the answer to it is two- fold: (i) that the agent had no authority to make such a contract; and (2) that the contract under ', ' ' ' ' ction is sought to be ■ ' ■ . .. , ^j^-}^ ;. thou9;b i" tcome de itv of the a^tiit. As> ity to make the upon that point — stiii it does n< p, ,1 > >i^iy assumed the authorit; :ontract. Waiving for 1" xw.s wns the only contract having ^ne the contract tmder which he arfed and is. It is qr- ■ I tract he did t ana hold the remainder w j o. Nor can he be h'^''-" • • •Juded by the expres- !n Smith v. ''^' , j \\i:,aiiuii -^^j, a ■ uic lefit of the :s was held to have their i evidence a.- nit broi:. to its lan V. Goodeil et ai., 56 Ic r the ! .'(0 and mortgage took nev. -Ti 'n their being signed by t; u 'L u I i ly to the former note. - his princifian to cancel the ni' ■ idgfmeni ■ieiiiauJing the ■ replevin, or obi "f the sale, they ele agreed price, ar^' the act of the a upon being rej. in contemplatir- an act has t- a prior con. The argi • really t'-* i' affirm • contra ( to the to ' en.v, a reco \ . shut oiv In Butie- mestic attacin.,,. mission of bank amount of a ch: . .^cT^ip^-.r whom t action been Li act was to ai.a.; cipcl entitle the defendai ^ n payment of a deh" For the same rer seeks to enforce a ^ that the agent exct covered it by an action . • But, knowing the terr -it on tlie contract for tli . vi the contract and ratifieu ' had been expressly approved agent or the defendant; and it ratification and adoption of of the act and is tantainount t Jang Cases, 4th ed., 592. 1^ though it is not so stated) seen assumption that the plaintiffs cou! cpudiate it in part, that is, that ti: ; for the agreed price, but bad .. But the law requires a contra. iii its entirety. Shepard v. Palmer, 6 'ft, 2 Vermont 351. See also the cases all relative to the piano except the on . and when the plaintiffs, knowing tl- they affirmed it in every essential pai as to the terms of paying the price, subject is Smith v. Hodson, 4 T. V. if a bankrupt, on the eve of his ban! cd goods to one of his creditors, t1: contract and recover the value of tl bring assumpsit, they affirm the coi^ 'Hat a creditor may even set off h' ,d in that case has ever since bee ble foundation, that the exi? ned to promote the purpose ( nt 'd as a nullity in order : I 'ltrcn'?e otherwise open to hin S; Serg. 108, the trustees in a d< oceeding in the nature of a cor '^ defendant in assumpsit for tl: him by the pari y to its date, a.v. of recovery. Bv= might have bee •J necessary result of laying don on which it was foundei .'iiat he had received the cher 'een held that a principal wh' : 't ordinarily ; ranting- the i REQUISITES. 351 because he must accept the contract as a whole if he means to rely on any portion. The general consensus of judicial opinion in the United States is in perfect accord with authorities cited from the English courts. We will select a few only of the numerous cases affirming the princi- ples upon which we base our opinion. One of the most recent cases is that of Billings, Taylor & Co. v. Mason, decided in August, 1888, by the supreme court of Maine, reported in Vol. 6 of New England Reporter, 791. The case is stated by Danforth, J., in giving the opinion of the court, as follows : "The action is assumpsit upon an account annexed. The defendant admits that he received from the plaintiff the goods charged and makes no question as to the price. 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 responsibiUty, to give some reason why. The explanation offered by the defend- ant is, that though he received the goods from the plaintiff, he re- ceived 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 ques- tioned, but the answer to it is two-fold : ( i ) 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 the instrumentality of the agent. Assuming, under the first, that the agent had no author- ity 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 ob- tained 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 v. Palmer, 3 Allen 450. Nor can he be holden upon an implied contract, for that is excluded by the express." In Smith v. Plummer, 5 Wharton 89, a contract 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 v. Goodell et al., 56 Iowa 592, an agent for the ov.ner of a note and mortgage took new notes for the debt, and in consideration 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 maker of the new 352 RATIFICATION. 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 v. 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 asset 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 re- ceived the benefit of the transaction and defended the creditor against a suit to foreclose the prior mortgage. It was held that, having appropriated the benefits, the bank must affirm or rescind in toto; that it could not disaffirm as to those parts which impose an obligation and affirm it so far as it operated to its advantage, and that the entire arrangement was ratified. In Whitlock v. 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. 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 having adopted the contract, he would then be only entitled to the note ; re- garding 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. v. Wolcott, 2 Allen 227, an agent was in- trusted 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 action of tort. The same principle is recognized in Jones v. Hoar, 5 Pick. 285. In the case at bar there is no claim that the defendant had sold the piano. In Butler v. 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 v. Pier, 4 Rawle 273, the defendant purchased goods from A as agent of the plaintiff, who brought an action and re- covered judgment for the price. Afterwards the plaintiff disavowed the agency and brought replevin for the goods. It was held that affirmance icioles of these ■;ed the piaminT i; an acti"- ■>' ' ■ .. . - - 'ant in r- ;ud converting the goods '-■':,-' •^••■'' for thei~' '•"^■••■' opiuK-n iscussio? le form \ icrcncc ■•s geiicrauy. _ As to tr. ,, it is it to reconcile the cas' ill regard, however, to the cj , effectual as a ratification of their ; :gest thKs ciistinction: that the act of the agent in paying .'debt with the plaintiffs' goods could not, perhaps, be as an act done for or in behalf of the principals at all a the p ' ' name, and was not properly ict :^]\ c,r> t was no express f^ontrnpt to '1 tiic suit, a! • except tile received money is undo' :.•,,. .1 K,. numer- <■•'■• v be of -r '.T '--I. :j'-t;'ilf c" "' xuou: ; ;t rase <~i*'e''l, I"*"' it. .^S^i The .inueiy lid not as given by ; uiid on motioi; procure the as made and •: on the pro ceived the against a having in '^'' an >, a contract w by which securi: .>r, in the interr iiti, who, in order \ ■-. authority from the bai ! a prior mortgage ty. The bank re- iieiended the ci ,; !ge. It was held V, the bank must affirm or resci:' ! rm as to those parts which impos.. as it operated to its advantage, and br tl' there i;- 1k sale Oii we gi "n action ex c^ ■ e maint. .xi :,il V. Pic ' as agent • tl: as a carnac 1 !iC niaii^ 'i \V. as his for )y note i .• and delivered olaintiff in exchange for the nd lisapproved of the arrangement a; . alleging it to have been sold, ver: that, regarding him as havi' ;lien be only entitled to the note ; r red tlie contract, there would th' at his remedy was after demand, ■icott, > Alleii ^-,. ^., ...,ont was i' •in specified purpose; he wrongful nent in money. The princij ; I St the purchaser for the pri' •^sit, the purchas money for it, t 'vered in action of tort. The sai \ Hoar, 5 Pick. 285. In the en lendant had sold the piano. " ir nlvcnt conveyed away I i trustee brought a sv (he property; th' :\ to set aside 1 tiiat. having bt 1 :i:M th€ Ia!:U:r ho brought an action and r ' the plaintiff d^sa^ .•ds. It was he] i REQUISITES. 353 the record of the former judgment was conclusive as an affirmance of the sale. A vast number of other cases establishing the same principles might be cited, but the above will suffice. No conflicting cases were cited by the plaintiffs, unless Steward et al. v. Woodward, 50 Ver- mont 78, and Squires v. Barber, 37 Vermont 558, are to be so re- garded. 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 plaintiff to recover of the defendant the price of the suit in an action of book debt, on the ground that the act of the defendant in receiving and converting the goods to his own use raised an implied promise to pay for them. The opinion of the court is very brief and contains no discussion as to the form of remedy and no reference to the authorities generally. As to the form of remedy, it is manifestly difficult to reconcile the case with some others we have cited. In regard, however, to the question whether the suit would be effectual as a ratification of their agent's act, we suggest this distinction : that the act of the agent in paying his private debt with the plaintiffs' goods could not, perhaps, be regarded as an act done for or in behalf of the principals at all nor even in the principals' name, and was not properly a contract of sale at all, so that there was no express contract to be affirmed by the bringing of the suit, and nothing to prevent the raising of the implied promise except the fact that the defendant had not sold the goods and received money thereon. It is undoubtedly a sound doctrine, established by numerous authorities, that to make a ratifi- cation 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 Vermont, 558, was very similar in the principles that apply. An agent of the plaintiffs, who had au- thority to sell their goods, became insolvent, and owing the defend- ant a private debt, undertook to pay it out of the plaintiffs' goods, the defendant being charged with knowledge of all the circum- stances at the time. The plaintiffs sued in assumpsit and the de- fendant, instead of denying the plaintiffs 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. In this opinion the other judges concurred.^ ^Accord: Bailey v. Pardridge, 134 111. 188. 23 — Reinhard Cases. 354 RATIFICATION. HYATT V. CLARK. 1890. Court of Appeals of New York. 118 N. Y. 563. Appeals by Elizabeth A. L. Hyatt from two several orders of the general term of the superior court in the city of New York made June 23, 1887, which respectively reversed separate judgments in her favor entered upon the decision of the court on trial at special term. These are cross-actions between the same parties, tried together and submitted upon the same evidence. The findings are the same in each, except as to matters purely formal. The action brought by Mr. Clark was for the specific performance of a clause in a lease between the parties, which provided for the renewal thereof upon the expiration of the first term of five years. The action brought by Mrs. Hyatt was to annul and cancel said lease upon the ground that her agent had exceeded his authority in executing and deliver- ing it. On the 2d of January, 1880, Mrs. Hyatt, who was then in Eng- land, appointed her brother, Arthur Lake, her agent to manage and conduct her property and affairs in the United States ; to sell and dispose of all or any part of her real or personal estate ; to convey and assign the same to the purchaser or purchasers thereof ; to receive and recover all sums of money dvie or to become due to her, and to sign, seal and execute all such agreements, conveyances,, assurances, acts, deeds, matters and things as should be required. The appointment was by written instrument, duly signed, sealed and acknowledged. About January 15, 1880, negotiations were begun between Mr. Clark and Mr. Lake in relation to a lease of certain premises be- longing to Mrs. Hyatt, known as No. 25 Waverly Place, in the city of New York. Clark raised the question whether Lake was authorized by said power of attorney to give a lease, and wished him to cable for additional authority, but he did not do so, as he had written to Mrs. Hyatt about the offer made and his letter was about due. Pending an answer to his letter, and about January 29th, the lease in question was signed by Lake as attorney for Mrs. Hyatt, the lessor, and by Clark and one Gardner, as lessee. Lake then handed the lease to Clark, for himself and Gardner, but, as the court found, ''Clark did not accept the delivery of the lease, but postponed his de- cision as to accepting or not accepting until he should hear further from Mrs. Hyatt." On the seventh of February, Mrs. Hyatt sent a cable message to Lake, in these words : "Your powers attorney can- celed. Sign no lease." In a day or two Lake showed this message to Clark and requested him to cancel "the matter of the lease and letting so far as the same had proceeded," but he refused, saying that he would take any risk there might be. He thereupon filed 'k^ did lister tl! ■ ny ... .1, . ,rt ed ,1 the • ... ..^ard 01 the rent res. ;nents, the t\ dse providei' ■ right of re $2,500 per >e latter. T ^ the first sir ct, expended more than $4,000 for tiiat purpt •' " commencement ■"•'' ♦•'''• litigation ri;.rT. 1 Gardner's inter, .e lease. 1- as tenaii'. lur another term 01; nvc 3 ear-. in the opinion. i. — vVc Jo not deem it important to decide whether the attorney authorized Mr. Lake to execute the lease in iot, because, in either event, the same result must ihe circumstances of this case. •le hand, he acted without adequate authority in e i^ - ix)th the lessor and 1r ' 'W it, for ' • •' are presumed to ha\ ibsolute ' •he law of the I executed by her ner naiv ■^"■inld be inf '-i vport &; . viie legal <. ry Horse R. ', j..ime •' - . r. 129. "> xecute i ^ would ;._. ^ would '1 upon au 1 '.V gave her effect. ed to 1' !t she c ir year>: RATI g'eri'-.r.'u lerir. < June 23. 1S87, favor • Tiu. and submii in each, e>; Mr. Clark be; - ' bv la- \n to cafi: ■■■'■•I to ^-.i..- 'ending 1 questi( ?.n^ hv * 'I orders of ti i use ciu' '.'i .\ew York ma. •VHcd separate judgments in 1 ■ <>n trial at special ter. .: . - .. parties, tried togetl. ce. The findings are the sav . .... formal. The action brought ^ perfonnance of a clause in a lea ided for the renewal thereof up' of five years. The action brouc 1 cancel said lease upon the g authority in executing and d ■...-.., Mrs. Hyatt, who was then in Arthur Lake, her agent to manage a ffairs in the United States; to sell ai : her real or personal estate ; to com :: purchaser or purchasers thereof; '^ of money due or to become due ' "e all such agreements, convey nnd things as should be reqi . ■ instrument, duly signed, seal< negotiations were begun between ^' )f certain premises 1 Waverly Place, in + -li the question whether Lai: .cmey to give a lease, and v, but he did not do so, as he h • iJcr made and his letter was al>' letter, and atout January 29th, 1 ' : i'or Mrs.Hyn; Take then ^ cable message to L celed. Sign no leas' Clark and request letting so far as ti that he uoiild tak. n^ until he should hear ' li February, Mrs. Hyatt s : "Your powers attorne o Lake showed this mes' "the matter of the lea>- i»ut he refused, : . He thereupoi REQUISITES. 355 his lease for record and took possession of the premises. Lake did not report to his sister that the lease had been "executed in any sense conditionally, or that Clark had not accepted delivery before the receipt of the message," but he informed her that it was signed January 29th, that it was valid and that it could not be canceled or avoided. Mrs. Hyatt did not know that there had been any condi- tion connected with the delivery of the lease until November 10, 1884, when she heard of it through Lake. In the meantime she had accepted the rent reserved by the lease as it became due in quarterly payments, the first payment having been made May i, 1880. The lease provided for an annual rental of $2,000 for five years, with the right of renewal for a second and third term of five years each, at $2,500 per year during the former, and $3,500 per year during the latter. The lessees were to expend not less than $2,000 during the first six months in improving the premises, and they, in fact, expended more than $4,000 for that purpose. Before the commencement of this litigation Clark, having first acquired all of Gardner's interest in the lease, gave due notice of his election to continue as tenant for another term of five years. Further facts appear in the opinion. 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 follow, under the circumstances of this case. If, on the one hand, he acted without adequate authority in giv- ing the lease, both the lessor and lessee knew it, for both knew the facts and both are presumed to have know^n 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 neces- sary that she should be informed of the legal effect of those facts. (Kelly V. Newburyport & Amesbury Horse R. R. Co., 141 Mass. 496; Phosphate Lime Co. v. Green, L. R. (7 C. P.) 43; Mechem on Agency, § 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 terminated and they would have had no lease. The right to disaffirm on one tenable grounds would if acted upon, have been as efifective as the right to disaffirm upon all possible grounds. Under the con- dition supposed, the law gave her the same right to disaffirm with- out 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 completely as she could have if she had known of two 356 RATIFICATION. 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 com- plete, because, being unwilling to run the risk of a doubtful ques- tion 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 v. 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 Ev., 123 ; Whart on Ev., § 1241.) If the lease was ultra vires, therefore, by ratifying it, she in legal effect executed and delivered it herself, and whatever was said be- tween Lake and Clark, became immaterial. Even if they agreed that she should have the right to disapprove, it is of no import- ance, 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 les- sees : "This contract was not authorized by the agency I cre- ated, 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 her- self. 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 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 (§ 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 subject- 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 V. Morgan, 10 N. Y. 178; Adams v. Mills, supra; Myers v. Mutual Life Ins. Co., 99 N. Y. i, 11 ; Bank of U. S. v. Davis, 2 Hill 451 ; Higgins v. Armstrong, 9 Col. 38.) .'as VIS (.U'ty to keej. aev noticp of all facts en- .:,sts. e is oi irauauien:. ci. : v,ho, Jer no oblig'icic. ...^.... h "{ . to assume that L .' so. (li; leehan v. Forrest - --- R. R. Co., 86 id. her duty to judgment, e last bear the loss resulting from iiis mexperienc^ -iiistaken zeal. After the lapse of sufficient time, t' iumed to have acted, with knowledge of all the ac the line of his agency. vtpting and retaining the rent, which was the fruit of her "'>r nearly five years \;. ' ion, she is p ■ d that act. (lioyt \. 19 N. Y. 2ov S 64 Iowa 1207 ; Heyn v. OHagen, 60 Mich. 160, post on Ev. §§ 66, 67.) Without expressing any dissatis- ■ the lessees, she received eighteen quarterly payments of e electing to avoid the lease. She made no offer to return >f the rent so paid, although she tendered back the amount ■f: for the nineteenth quarter at the time that lon of the premises. I of what she is have known 1; her agent, she .. ;-..-■./ the terns--: IS executed by Mr. Lake in her name. , rrival in this country in Septembc- nd saw the additions and improv king thereto to her in p- cared to ha months pr. i not until ." continue the ic'-a; i..;i d i.c; .vas low, she then tried to finv om ''''"' > ' ' :. result •'ich she :\en too acts of .pended ':cecd lii tiiis iiii- n, because her I died upon by the '■'■■•■ making per: d the benefi ihe right at aii, its exercise is i plete, becai tion of law, ^.t had known all i- (60 N. Y. - authority ]> attorney, s meant and Ev., 12 If th. . _ . effect executed tv\- ■ ' lease, 1 If, <- the le.- from that . within p. I his krt' It ib an agent is ^, vere it arises matter of his a it is presumed principal, and ; a.e^ef.t. with the pa uoi : his acts and In other words, her agent had ir< '-' i iugjills V. Mo' T\Ti ^ ■ ' ■•■ I wo grounds If she had could j ■ the less 1 the risk ot a doubtful que: ^ ci,.- itrQuid have acted if si art in Adams v. Mill. ".as bound to know wh \ng executed the power lucd to have known what iv that it conferred. (Best > v.ici^. v., .,. i^w.^mg it, she in leg herself, and whatever was said b- ; :- :,rial. Even if they or ]5rove, it is of no it ■ment. y therec onai, could not atiect her rights. it, she could have been relieved -T by promptly saying to the k not authorized by the agency I cr '»und by it," After that there won; action of her agent *vas unauthorizc some act of ratification she bound ht ivcd any right to disaffirm upon as. because the lease did not exist, as ut by her own act of confirmatic 'vake was duly authorized to gi . of controlling importance sprir i to have disclosed to his prin ' * the material facts that caj. le scope of his authority. ." (§ 140). that "notice of fa. e thereof to the principal hi ■0 time connected with the si creneral principles of public ; b facts ' ; intrust ^ 1 rigid ■ le with all the knowled.L' ■ he business he had in c .dams V. Mills, stipra; M REQUISITES. 357 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 en- abled 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 v. Morgan, supra; Meehan v. Forrester, 52 N. Y. 2yy, Scott v. Middletown U. &. W. G. R. R. Co., 86 id. 200.) It was her duty to protect her interests by selecting 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, therefore, 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 v. Thompson, 19 N. Y. 207; Alex- ander V. Jones, 64 Iowa 207; Heyn v. O'Hagen, 60 Mich. 160, post p.; 2 Greenl. on Ev. §§ 66, 67.) Without expressing any dissatis- faction to the lessees, she received eighteen quarterly payments of rent before electing to avoid the lease. She made no offer 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 ten- ants were making thereto, and at the time as well as subsequently, rent was paid to her in person. Apparently she had all the knowl- edge 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 finding 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 benefit 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 358 RATIFICATION. but recently discovered a fact that she should have ascertained, and which the law presumed that she did ascertain, long before, (i Am. i& Eng-. Ency. of Law 429.) We think that after ample opportunity for election and action she ratified the lease and that her ratification was irrevocable. 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. All concur except Haight, J., not sitting. Order affirmed and judgment accordingly.^ WALLACE ET AL. V. LAWYER et al. 1883. Supreme Court of Indiana. 90 Ind. 499. WooDS^ C. J. — Action by the appellees to enjoin the collection by the appellants of a certain judgment of the Marion superior court, rendered in favor of Andrew Wallace against the appellees, and afterwards assigned by the said Andrew to his wife and co-appel- lant. It was admitted on the trial "that on the 31st day of August, 1878, Joseph M. Wallace executed an assignment of said judgment in proper form, on the proper record, in the name of said Andrew Wallace to Asher G. Walton," but it is claimed that Joseph M. Wallace had no authority to make the assignment, and that, for the want of evidence to show such authority, the motion of the appel- lants for a new trial should have been sustained. The evidence shows, or tends strongly to show, that before the ex- ecution of the assignment in question Andrew Wallace, in considera- tion or payment of moneys which he had received of his wife, had sold and transferred to her a stock of groceries and had executed to her a written assignment of accounts, demands and judgments, including the one in question, and, having thus disposed of his business and property, had gone to a western territory to look after mining interests. Of the goods and business thus transferred to her, Mrs. Wallace put her son Joseph M. Wallace in charge, and while so employed he sold and assigned the judgment in question to Walton for the sum of $100, which he mingled with other moneys received for and applied to the uses of his mother who, after full knowledge of the facts, made no offer to return the money to ^Accord: Kirkpatrick v. Pease, 202 Mo. 471. The receipt of money arising from an unauthorized act, to which money the principal is entitled notwithstanding that act, does not amount to a ratification. White V. Sanders, 32 Me. 188. '1, but :- -^ pur- . ,:u\ .... -he i- \e amoi; . .,:a:r i.'C sa^i , i:cit there ^^;ency on the part of Wal; it and posii iot made iir. . VVaitoii. It is clear that the reti- If the assit: runent of the litiited a wjiver of all riguL ti;^ . :- • lent on account of lack of aui the age: Judgment affirmed.^ 7 Til i. — iiiis was an aclioti ot rcpieviu lor a licrsc. iiic biii >r ?ho\vs that in the spring of 1852, a son of the plaintiff, years of age, and who resided with him, exchanged .. .uestion, which belons.'.: ' ' • 1U- olaiiitlfF. v -'th llie de- 't for another horse. A fe '■' *' 'fbid his son to exchange nn. 1." ok the horse home to the plain- made on Saturday, and the excii,. r. The son told his father, on ch he had v xchange and '.n" express!; ^(] of or fi :ot seeni ? what h knows 'lid no^ * •es it«a} in the s ^ions wneii iie bri ,t. The r^'^^'nttfr days after .at if the h' ; 'Til. ncipui receiver ir rrpnrt or acrorni J , in ]o' 13. Vr.^' b'!': recently discover v.juch the law nt'- Am. i& Eng, En* W€ think th; : she ratified the ! In each actioi judgnu^nt direct with costs of ap: All concur t- (^rder afH ; ascertained, ah> ■i ■!!:•■ lie fore, f irrevocable. u;d be affirmed ;ni . )r of the respondent ion only. iccordingly."^ -\WYER FT AL »!• i 2s DIANA. 90 IVlCt. 499. WaiiL <->t cv; lants for a The evid- ^-v^ition of t!< tion or payment o£ sold and transf<""'p<' to in'-: a writtt' inc' ' — ''le uin.: , hn- propen received for and aj:. knowledge of the t 1 -•;.-.■.■,,./ kii-t.n-iiv,, White V. Sanders ;!ie appellees to enjoin the collection b- idgment of the Marion superior couri :w Wallace against the appellees, an , J J ; ' - - ' '-■ -'■" and co-appel- Ihal on the jist day of Angus i d an assignment of said judgmej; ,:'■ record, in the name of said Andre'. ;i," but it is claimed that Joseph h; MUike the assignment, and that, for tl; .oh authority, the motion of the appei i have been sustained. ■.rrongly to show, that before tlv. ^ cion Andrew Wallace, in consi ; ; . h he had received of his wife, h;. -■:cl: of groceries and had execute mts, dgmands and jtidgmenl. : having thus disposed of h; western territory to look aftt s thus transferred '■■ ■'^\h.^t in charge, ar it in qu. • , other m of his mother who, aftc 1 ;T,- ,- i:. rrti-.i-n f'.,-' mr)l rized act, to which mo; \s not amount to a ratif REQUISITES. 359 Walton, but retains the same, upon the pretense that Walton pur- chased only as agent for the judgment defendant, and that she is willing to allow the amount as a credit upon the judgment. If it can be said that there is any evidence tending to show such agency on the part of Walton it is slight, and the proof to the con- trary is explicit and positive. The assignment of record to Mrs. Wallace was not made until after the entry of the assignment to Walton. It is clear that the retention of the money received of Walton for the assignment of the judgment, after notice of the facts, con- stituted a waiver of all right to dispute the validity of the assign- ment on account of lack of authority of the agent to make it. Judgment affirmed.^ HALL V. HARPER. 1855. Supreme Court of Illinois. 17 111. 82. Caton, J. — This was an action of replevin for a horse. The bill of exception shows that in the spring of 1852, a son of the plaintiff, about eighteen years of age, and who resided with him, exchanged the horse in question, which belonged to the plaintiff, with the de- fendant for another horse. A few days before the exchange the plaintiff forbid his son to exchange the horse. After the exchange the son took the horse home to the plaintiff. The agreement to exchange was made on Saturday, and the exchange was made sev- eral days after. The son told his father, on the Saturday, the agreement which he had made to exchange and it does not appear that the plaintiff expressly approved of or forbid the exchange. The witness does not seem to remember what his father said about it, only he says he knows his father did not tell him to make the exchange. Nor does it appear from the son's testimony, that his father made any objections when he brought the horse home which he got of the defendant. The plaintiff" was afterwards seen riding the horse. A few days after the exchange, the plaintiff told the witness, Snyder, that if the horse which his son had swapped with ihe acceptance of tb.e benefits arising from an unauthorized act without knowledge of the act does not amount to a ratification. Thacher v. Pray, 113 Mass. 291. "Where, however, the principal receives from his agent the proceeds of the unauthorized act, with his report or account of the transaction, he cannot ignorantly or purposely shut his eyes to means of information within his pos- session and control, and thereby avail himself of the benefits of the transac- tion, and then repudiate it. If he so receives and retains the benefits of the transaction, he ratifies it." Start, C. J., in Johnson v. Ogren, 102 Minn. 8, 13. 360 RATIFICATION. the defendant for, "lived and lucked well, he would make a horse that would sell for more than the one his son had swapped to defendant." The parties lived about two miles apart, and met sev- eral times ; and on one occasion the defendant rode the horse in controversy to the plaintiff's house, but nothing was said between them about the exchange of horses which had been made. Two or three weeks after the exchange had been made, the plaintiff was taken sick and remained ill till about the time this suit was com- menced. After the exchange the son took the horse home to his father's where he remained two or three months ; at the expiration of which time, the plaintiff took the horse back to the defendant and off'ered to return him, and demanded of the defendant the horse which his son had let him have. The defendant refused to return him, whereupon this suit was brought. From this evidence the jury was well warranted in finding that the plaintiff had acquiesced in and approved of the exchange of horses which had been made by his son, and thus adopted that act as his own. He did not repudiate the bargain which his son had made for the exchange when he was advised of it before the ex- change was actually made, but passively allowed the executory bar- gain to be executed; and when his son brought the horse home he made no objections to the exchange, but retained and used the horse obtained of the defendant. He still forbore to remonstrate when he met the defendafit several times subsequently, and even when the defendant rode the horse, which he had obtained of his son, to his house. It is plainly inferable, from the evidence, that he retained and treated the horse as his own for about three months, without a word of dissatisfaction or disapproval. An old and just legal maxim may well be applied to the plaintiff here, which says, if he keeps silent when duty requires him to speak, he shall not be allowed to speak when duty requires him to keep silence. His continued silence and long apparent acquiescence in the act of his son, well justified the defendant in supposing that it met with his entire approval. He cannot be allowed to lay by and speculate on the chances of a good or bad bargain, or upon the chances of the horse, procured of the defendant, turning out good or bad ; or, to use his own expression, "lucking well." If he intended to re- pudiate the action of his son, he should have done so promptly, so that the defendant might know what he had to rely upon. We think a different verdict would not have been justified by the evidence, and the judgment must be affirmed. Judgment affirmed.^ ^ See Story on Agency, 8th ed., § 258. "If Dawley was without original authority to borrow money on behalf of his principal, but did in fact so borrow, and used it in a manner advantageous to the party to be charged, the ratification of his unauthorized act may be in- ferred from the silence of the principal after knowledge of the facts. It is I ■{171. N'_ , and ot! Pliilem ' " counst ..ver's h.- ' >nam Weaver signei' te. The -c and plaintiff closed. i.m Weav^er testified that he v said note ■' .'i'l did not sign it noi ;;': ujiize anyone tifc uO; that about the date of this note John WebL id he had a note on him and John S. Weaver loi X), and that he wished the note put into two notes, turn over $500 of the apiount to some religious so- ..... t;.. told Webb to go and see John: the note was not to him and he heard no more of it till plaintiff's attorney I him just before this s,uit, and he told said attorney to go son, Tohn S. Weaver: he would have told the attorney that ; ot his d, S. had c 4 him, John S. had sonir^ "1 him and proposed to .. ^ - 1 that the note was not his, and thai ■ then shown by several witnesses th not in his handwritinpf. it was ■ ' ' •" tree ha, ')r ten yeart rlinfinr vr * ratifv- ; ex. L'v silence ^^ 30C' 'I ; defendant for, "lived iliat would sell for :^' " defendant." The pa. era] times ; and controversy to K them about the or three weeks was taken sick a' menced. Af*<-' father's whc of whicli and oB hor- to r KATIFICATION. and lucked well, he be aliov. oontinn tjuire ajij>r- ' r fire chaii 'he acti'j defendaiK link a differ. , and the ju \pnt aflRrme'] a horse apped to met sev- horse in : between 'uade. the pla' uit was com home to hi ne expiratioii lie defendart' defendant the. . iondant refused finding thai !.. „ ,.j. exchange o: by his son, pted that act ^' * ''^' '' his son had ;^fore the ex- •xecutory bar- -rse home h<- d and used the - e to remonstrate several times sulsequently, and even '■■'"Tse, which he had obtained of his ierable, from the evidence, that ht. 11 for about three month,': iproval. An old and jus; . to the plaintiff here, which say; ; aires him to speak, he shall nc>l res him to keep silence. Hi ..t acquiescence in the act of hi. n supposing that it met with hi ''"wed to lay by and speculaU rain, or upon the chances oi Ming out good or bad; or '." Tf he intended to re tified h i ' Set ;: '•If D. his princ to the p;.. (lie .silt'ii. .dge of the facts. It i'^ I REQUISITES. 361 WEAVER V. OGLETREE. 1869. Supreme Court of Georgia. 39 Ga. 586. A'on est factum. Newton superior court. David Ogletree and others, as executors of Philemon Ogletree, sued John S. Weaver and I sham Weaver, upon a promissory note purporting to be signed by them, dated the 9th of December, 1861, and due the 7th of December, 1862, for $814.03, payable to the exe- cutors of said Philemon Ogletree. Isham Weaver plead non est factum. Plaintiff's counsel introduced a witness who professed to know Isham Weaver's handwriting, and who testified that he thought Isham Weaver signed said note. The note was read in evidence and plaintiff closed. Isham Weaver testified that he never saw said note till he was sued on it, and did not sign it nor authorize anyone else to sign his name thereto ; that about the date of this note John Webb called on him and said he had a note on him and John S. Weaver for $1,200 or $1,500, and that he wished the note put into two notes, that he might turn over $500 of the amount to some religious so- ciety, and he told Webb to go and see John ; the note was not shown to him and he heard no more of it till plaintiff's attorney dunned him just before this suit, and he told said attorney to go to his son, John S. Weaver ; he would have told the attorney that the note was not his deed, but he was ashamed; when Webb called on him, John S. had considerable property, and when the attorney dunned him, John S. had some property ; when one of the plaintiffs called on him and proposed to take a small amount for the note, he told him that the note was not his, and that he would not pay it. It was then shown by several witnesses that Isham Weaver's name was not in his handwriting. In rebuttal it was shown that from 1844, Isham Weaver and Philemon Ogletree had had transactions, and one of the executors testified that for ten years past Philemon Ogletree held a note on his duty, if he does not acquiesce in the unauthorized act, to repudiate it." Thatcher, C. J., in Breed v. First National Bank of Central City, 4 Col. 481, 507- "Mere delay in repudiating will not, in our opinion, have the effect of ratif}'- ing. It would be evidence, along with other facts, from which, if it should be unreasonable, the jury might infer that there was a ratification." Collard, J., in Meyer v. Smith, 3 Tex. Civ. App. 27, 43- "The case in which silence will amount to ratification is where the principal, having knowledge of the transactions of his agent, fails within a reasonable time to express his dissent. It is failure to express dissent to the act done by the agent, or supposed agent, within a reasonalole time after knowledge of the facts, that raises the presumption of ratification : not the forbearance to sue immediately after such notice has been given." Deaderick, C. J., in McClure V. Evartson, 14 Lea (Tenn.) 495, 501. 362 RATIFICATION. Isham Weaver, which in January, 1861, amounted to $1,225. Another of the plaintiffs testified, that to the best of his knowledge said note was repeatedly renewed in the lifetime of Philemon Ogletree, and that after his death the note and another were turned over to Webb to be renewed and divided for the purpose aforesaid. Webb returned this note as a renewed note after said $500 was taken out by said division ; and when this witness called on Isham Weaver, recently, he admitted to witness that he had known for years that his name was on said note ; said that John S. had fraudu- lently used his name, and that he would not pay the note, adding that if this was the only one he might pay it, but as there were others he would let the court decide the matter. John Webb testi- fied that when he called on Isham Weaver for the purpose of hav- ing the note renewed and divided into two, he said "go and see John;" he saw John, and in a day or two John brought him this note and the other for the religious society, signed as was the old note. John S. was then good, and Isham made no impression on Webb that his name was not his genuine signature. It was shown that before Isham Weaver ever denied the genuineness of the sig- nature, John S. had left the State. The court charged the jury that a party may bind himself to an unauthorized act of another, either by express or implied ratifi- cation. Express ratification is when a party adopts and confirms an unauthorized act of another, and assumes the liability thus created by a positive promise, and this relates back to the original transaction. Implied ratification arises when the party sought to be charged with an unauthorized act is informed of it and does not repudiate it, but acquiesces in and does not dissent from it for any length of time. The jury found for the plaintiffs for the principal and interest on the note and costs. A new trial was moved for, upon the grounds that the verdict was unsupported by the evidence, and because such charge was hypothetical, and therefore calculated to mislead the jury. The new trial was refused, and that is assigned as error. Brown, C. J. — The evidence submitted to the jury in this case showed that John S. Weaver had been using the name of his father, Isham Weaver, for years, on his own notes, and that this fact was known to Isham Weaver. But he took no steps to stop this use of his name, and gave no notice to anyone interested that it was not authorized by him. When, in the language of Isham Weaver, John Webb did call on him and John S. Weaver for some twelve or fifteen hundred dollars, and wanted the note divided into two, in order that he, Webb, might turn over some five hundred dollars to some religious society, he told Webb to go to John S. Weaver. He does not pretend that he even intimated to Webb TOte was not genuine, or that h' av — r' -> jfohn S. W— - '• =M , to make ti ished, and ; ^d with the a is date-v' ;!bout the tim r,-^-. . I ! . .,> see John S aver for pa - would ha\< - uiai ^j olved his sot. ashamco. \, '6 jury were autixOri^cd by the evidt: |'ii\n ver had authority to sign the name ■. •r if not, that the father, by his conduct, ratiheo 1 done without authority, and made it his own a .. , chat he will not now be heard to deny its validity, whc;> ' -^t, he has induced others to act upon the belief that Mr. Chitty, in his treatise on Bills of Exchange, p. the rule as follows: "A person may become drawerj •i-eptor, not only by his own immediate act, but also t or partner. When a party insists that his name ... ^.^ ;.e may' resist the payment at law or file a bill in f he intend to resist the payment he should immediately, 'ng his handwriting has been imitated, give public - — persons from taking bills or notes with his name :i against ihe dc 5 accep ^0 was forged b^ . the dr as proved that the < had bee ' ■ ' " and that h. d severa ", and to wh .r (as it •ance. And V of forger-".' nave accep. iii, he nad ' ''\ made hii. .. ''^ ^<' '..-iv ; ':e. Section jiU Ihe acis or sucuce 01 ■ vfr was silent when ♦"!" d nothing to r)> lie Mm rin''; Tohn ^. ,_.]„mc ., who \i' ' divide .3'>-' islKim Weaver, wl AiiOthcr of the plai: said note was rep> Ogletree, and tli"" over to Webb t' Webb retUT taken out b Weaver, re. years that h lently used that if rb'- others i fied ' ieiig-th c The , on tlie note A new tr was nnsup]_. ' -■' 'ticai, ... I was re jjR'JW N, C showed thai father, Ishani \> "':i:': vns known of his f. ... , . tiot authui ...^ Weaver, John Webl twelve or fifteen hur. two, in order that li dollars to some reh' Weaver. He does . -'Vited to $1,225 of his knowledg' line of Philemot: ni.-ii.: a'Au uiother were turneii Jed for the j^urpose aforesaic' r said $500 w:«i -. called on Ishan t he had known fo -, . : a John S. had fraudu le would not pay the note, adding : might pay it, but as there were :ide the matter. John Webb testi T for the purpose of hav- i'.vo, hv^ said "go and sei lay ui two John brought him thi •us society, signed as was the ol id Isham made no impression or, . , genuine signature. It was shown er denied the genuineness of the sig- -State. ry that a party may bind himself to ..'v. either by express or implied ratiii ■^ when a party adopts and confirm; , and assumes the liability thu: ..;id this relates back to the origins 'on arises when the party sought to b • i act is informed of it and does nc • and does not dissent from it for an; ' t'ffs for the principal and intere>: ^-oii L.iC grounds that the verdic; c, and because such charge wa^ ■lated to mislead the jur- ^I- assigned as error. "to the jury in this risir!j ■'^ rately he has ■• ■ 'ed.^ nt must be h costs jstices concur rcii ttled that ■f the Of as to tht .il rule is a CClU.i i:.. ler, J., in 31 ^04 II :>:■;. • the. notes, .vc think Ti' cc;>T ihe new n'. } '' ' ht truth had 1 Obt probably S. Weaver record and the court b and grant ?■ [udgmer T tilt; it.'nt ed to, vvv" refusing. ' father upo .1] him to a '.er time, whc rented, woul t while Jol. ul litoi.- made by th ire of the opinion th; 3 side this verdic .1 Oi'" MiCHiGAM. 44 Iviich. 519. Hie ev his sul ' finally of justiv..,, to the time lent. -"" tion, re -aac M. ■ C-. agree- they demand the s of n to re aui id void. has brought into c :tion brought to recover the subscrii }'. The subscription was obtained L defendant signed his name to a promi- ■ y of the book. This promis< 3 of for tlie purpose of obta !)posite page, in sight of one -.:; to agents," printed on the .: these rules was that "no promise « ;!. which interferes with the intent • did." and patrons were warned undi -^ to be persuaded into si . u:> pay the price charged. ,Mitn Schenck, the agent, soi was not inclined to give i. ke it provided his fees in the iiich should accrue from that ■k, should be received as an ei; ' ' ' rr,! signed the sul: ii the following j; >ril 29, 187.S 'py of our hi proceeds of his . ,„..., history. ts & Abbott, per Schencl ■or}' was duly deliv^- . renudinting the 11: amount of his fees as justu REQUISITES. 365 for the period named. This statement of facts presents the ques- tions at issue, so far as they concern the merits. It may be perfectly true, as the plaintiff insists, that this under- taking of the agent was in excess of his authority; that the de- fendant 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 definite 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 contempo- raneous paper given back by the agent constitutes a part of the same contract and the two must be taken and considered together. Bronson v. Green, Walk. Ch. 56; Dudgeon v. Haggart, 17 Mich. 273. Taking the two together it appears that the defendant never as- sented 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 contract, or to repudiate it. If they ratified it, they must accept what he agreed to take. If they repudiated it, they must decline to deliver the book under it. But they cannot 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 stipulations to which separately he has never assented.^ The judgment must be- affirmed with costs. The other justices concurred. ^ "The law is well settled that the principal cannot, of his own mere authority, without the consent of the other party, ratify a transaction by his agent in part, and repudiate it as to the rest. He must either adopt the whole or none. And hence, the general rule is deduced, that where a ratification is established as to a part, it operates as a confirmation of the whole of that particular trans- action of the agent." Miller, J., in Krider v. Trustees of Western College, 31 la- 547, 550. 366 RATIFICATION, • Section 3. — Effects of Ratification. COMMERCIAL BANK OF BUFFALO v. WARREN. 1857. Court of Appeals of New York. 15 N. Y. 577. This action was brought in the former recorder's court of Buffalo, against the defendant, as one of the firm of Smith & Warren, the other partner having been discharged under the bankrupt law of 1 841. Upon the trial the following facts were proved. Smith and Wan-en were law partners ; Smith made his individual promissory note for $216.69, payable to the order of Smith & Warren ; endorsed the same in the firm name ; and procured it ; to be discounted by tlie Commercial Bank of Buffalo, of which he was then a director and the legal counsel. The note was made by Smith, for his individual benefit, and for no purpose connected with the business of the firm. It was endorsed by him in the fi.rm name, without the knowledge, consent or authority of Warren, who never received any benefit therefrom. All these facts were known to the plaintiff at the time the note was discounted, and the endorsement was made by Smith at its sug- gestion. After the note became due, and the defendant was charged as endorser, he repeatedly admitted that he was liable upon the note, and promised to pay the same. The recorder, under exception, directed the plaintiff to be nonsuited. Upon appeal to the supreme court, the judgment of the recorder's court was reversed, and a new trial ordered. The defendant appealed to this court. Johnson, J.. — It was proved that the endorsement of Smith & Warren, on which the defendant is sought to be charged, was written by Smith, the maker of the note, without the knowledge, consent, or authority of the defendant, for Smith's own individual benefit, and for no purpose connected with the business of the firm of Smith & Warren, and neither for the benefit of the firm, nor Warren ; and that all these facts were known to the plaintiff at the time of the endorse- ment. Upon these facts no question is made, nor could any be made, of Warren's being not liable. There is proof of several subsequent promises on the part of Warren to pay the note, and of acknowledg- ments of his liability as endorser ; but there is no proof in respect to the existence of any independent consideration moving to him or from the plaintiff. If, therefore, any independent consideration is necessary to sustain his liability, the plaintiff must fail. If there had been an original assent, on the part of the defendant, to the en- dorsement, he would have been bound by it, even if the note had been taken by the bank on account of a precedent debt as collateral se- curity. (Bank of Rutland v. Buck, 5 Wend. 66.) That would have presented the common case of an accommodation endorser, whose obligation has been used as he intended it should be. Yet, in that hero w -.i] ! hnve he.ev ;i. nor from xi sting luent y.'- . ild not ]■ l^- 1 is cerLaisiiv ^'■^■'- "' "'" rity ; and I clo not f ralifir- ' _ . in the aent. In many of tiie ca. _r. u}X)n the signature of ; ; the firm business, has l)ecn largeable in law with notice i .lju at to show a special assent to f the fin reditar is in ur. use he .. : in fact in t!^ - ■ :s he wa- \v. ' In ; i- a sLibvequeut ratification ha id to be .• to charrc vh. i>:>'t;icr who ■: . - e use of his name; and seen suggest l ■■-''^ " .-^'■'^- .1; - -fi^ectuai. .:.,/ ■-.■.iv;,jcndent consideict-;.. rench. 2 Cush. 31^: Wilson v. Wii- unless by an ne oi h ich are "ts drir: . .^uestion lefend;' le the unauthorized act dy for I.;.. .,..iLv.:. ■ ' - — ^^ '■■<■''■• •— "^ter to make out a ratifica !\ '; Xii ll;S '■ He mii= ne was, :x Part ai:is I 1 it priv:^ fe :is have great v 1 '1-" ■ 'f his nar.. .. o lis may not ; he • iMiher he will 01 v. i;i ■ ner, thotip-h rvrisfinallv m It ratification by ;e previous 36o Section 3. —Effects of "Rratif^ri. .Kkr.A. This actii ^ court of Buffalc ajjainst the -h & Warren, th other pa'-tr- . bankrupt law ( 1 841. i proved. Smith an Wane. , , . individual promissoi H! ' rder of Smith & Warren; endorse • ■ ■ • ' " ' it ; to be discounted by tl: vas then a director and tb : y ^"^ifh, for his individual benefi .1.1 the husirx^'^s of the firm. It wa viedge, consent < at therefrom. Ai .c time the note wa .......v. by Smith at its sul. nd the defendant was charge' i liiat he was liable iipon the not<. The recorder, under exceptior tppeal to the sup .IS reversed, and n tiiis court. .. endorsement of .-..,,.... ig^ht to be charged, was writtt-i r-\ >ut the knowledge, consent, o Mil I' ."s own individual benefit, an for ' f the firm of ' ' Wc . nor Warren all the.- u the time of the en' . me;-. I. i ie, nor could any be ; ct ^ere is proof of several subst ,^.. • ri,. , ,f^ „,nj Qf acknowl-: i- • roof in respect t ";■ him o: .ration 1; dl If • ..nt,to tl; e wouif I ■ . even if the note had ... ..v.. . ivinir .- lent debt as collatera; curity. .d. 66.) That would hav. presenlt'.' vi^ nodation endorser, vV ' obligation has b r, should be. Yet, in EFFECT. 367 case, there would have been no consideration moving; to him, nor from the plaintiff. It would have stood upon the consideration existing between Smith and the bank. That being so, I see no reason w^hy his subsequent assent should not place him in the same position. The maxim is certainly general, that a ratification is equivalent to a prior authority ; and I do not find that it has ever been held that any special sort of ratification is necessary, when the act to be ratified is the giving, in the name of the principal, an accommodation note or en- dorsement. In many of the cases in which the responsibility of one partner, upon the signature of the firm name by another partner, out of the firm business, has been litigated, the creditor has been held chargeable in law with notice of that fact ; and has, therefore, been put to show a special assent to the use of the firm name in that way. The creditor is in no w^orse position because he appears to have known in fact in this case, what in the others he was held bound in law to know. In those cases a subsequent ratification has been fre- quently said to be sufficient to charge the partner w-ho had not au- thorized the use of his name ; and it has never been suggested that to make such a ratification effectual, an independent consideration was necessar}-. ( Sweetser v. French, 2 Cush. 315; Wilson v. Wil- liams, 14 Wend. 158; Nixon v. Palmer, 4 Seld. 398.) Indeed, unless there is a general exception of accommodation paper, made by an agent in the name of his principal, from the ordinary rules which are applicable to acts done by an unauthorized agent, there is no question about the defendant's responsibility. Where the unauthorized act is apparently for the benefit of the principal, a very slight matter will serve to make out a ratification ; W'here the act is not apparently for his benefit, clearer evidence of ratification should be required. When, however, it plainly appears, that he does mean to ratify that which has been done in his name, the law^ does not compel us to deny him the privilege. He must be taken to have considered for himself whether the act done was, on the whole, such as he approves, and desires to be bound by. Such a case may have presented itself to him as is referred to by Lord Eldon, in Ex Parte Bonbonus, cited in Gansevoort v. Williams ( 14 Wend. 140) : "In many cases of part- nership and different private concerns, it is frequently necessary for the salvation of the partnership that the private demand of one part- ner should be satisfied at the moment." And as such considerations \\^uld properly have great weight with a partner in assenting originally to the use of his name;, by and for the benefit of his co- partner, I see not why this may not also be allowed to weigh, when he comes to consider w^hether he will or will not be bound by a use of his name by his partner, though originally unauthorized. The judgment should be afifirmed. Selden, J. — It is a part of the established doctrine of the law of agency, that a subsequent ratification by the principal of the previous unauthorized act of an agent, or of one assuming to be such, is in all 368 RATIFICATION. respects equivalent to an original authority. This doctrine has been repeatedly applied to cases of the unauthorized use of the partnership name, by one of the partners, for his own private benefit. It is, how- ever, contended by the defendant's counsel, that the ratification in such cases operates not directly, but merely as presumptive evidence that the act was originally done by the authority of the principal. Were this position established, it would inevitably follow that the judgTiient in this case must be reversed ; as the evidence of a want of authority is so conclusive, as efifectually to repel any contrar}- in- ference to be drawn from the subsequent assent of the defendant. But this view of the modus operandi of a ratification, is not sus- tained by the authorities. On the contrary, they all proceed upon the assumption that a ratification is, per se, a confirmation of the act of the agent. In none of the cases do I find it intimated that it operates merely as evidence of an original authority ; nor have I met with any case in which the usual efifect of a ratification was prevented, by proof of an actual want of authority on the part of the agent. Whether or not, therefore, the doctrine that a ratification is not merely evidence of, but equivalent to, an original authority, can be made to. harmonize with the general principles and analogies of the law, it appears to be too firmly established to be shaken. Of its ap- plicability to the present case there is no doubt. It is clear, also, that tio valid distinction can be taken between a ratification of and a promise to perform the engagement entered into by the agent. The substance of the ratification consists, in all cases, in the consent of the principal to be bound by the act of the agent. Nor do I see that the effect of the defendant's voluntary assumption, in this case, of the obligation ostensibly imposed upon him by the act of his partner, can be prevented by the knowledge, on the part of . the plaintiff, of the want of authority of such partners. No such dis- tinction is suggested in any of the cases, although in some of them, the fact that the agent had exceeded his powers, must have been either actually or presumptively known to the plaintiff. My conclusion therefore is, that the judgment of the supreme court should be affirmed. Shankland, J. — If the bill of exceptions must be considered as containing the statement of facts established on the trial, instead of the evidence of facts, then the judge at the trial correctly denied the plaintiff's request to submit to the jury the question of Smith's au- thority to endorse the defendant's name on the note. The supreme court granted the new trial upon that point, but seemed not to have adverted to the language of the bill of exceptions, and to have con- founded it with a case. Treating it as a case, and the proof as mere evidence, they were justified in granting a new trial ; for there was abundant evidence to go to the jury and to justify them in finding an original authority to Smith to endorse the firm name on the note. But I am of opinion the bill of exceptions must be considered as contain- I US'. DO »m the :o the bank which di- ■^sing- t<:- .: rule tl .^_ It fnr ,, ...:_... : . ... ,. ...,„. rwards, ovvkdge, promise to pay it accord- would aii.'.M.n^L i.> .J. ■■■ ■^— '-'•■■ ■'■' -''-■2 act." '■■'■'• -. Peur. ,& Watts' P. etzer v. "" ^13; 3 H' i by tb- .e sub^eqiier Lijcrt; s [. Inn:,;-- . I :. t!, le to be usci "ere this : that the ■ '''•'^' '"' want of ;:rar>' in- '•^luiant. tbe .1 of '1 that it operates -i I met with any ■ vented, hy proof ation is not . can be 3 of the ken. Of its ap- . ■ ' . 't^ar, also, that ■n of and a iiMT. agfent. Th- m the consent «' Nor do I see ion, in this case. 1 by the act of his 1,1 the part of the ' 'o such "■ ' y ..ome of the ill. must have been iff. of the supreme onsidered as i tne trial, instead of •rrectly d^'"^'^'' '^^'• ii of Sn; i,;<..'te. The siii)TfTi'.-* ! seemed not to have trial ; for there \va^ fy them in findine ^ti nne on the note.- i EFFECT. 369 ing a statement of facts, the result of evidence, and that it must be considered as a conceded fact that Smith had no authority from the defendant to use his name at the time the endorsement was made. The new trial cannot be sustained on the basis assumed by the supreme court. It becomes necessary, therefore, to examine the other grounds urged by the respondent to support the order for a new trial. The plaintiff proved that after the note fell due, or about that time, the defendant admitted in express terms that he was liable on the note as endorser, and promised to pay it. This raises the question wdiether, when one member of a co-partnership endorses his own note (given in form to the firm) with the firm name, without the knowledge or assent of his partner, and for his individual benefit, and these facts are known to the bank which discounts it, the firm can be made liable by a subsequent assent thereto and promise to pay the same. The authorities all speak one language on the subject, and affirm that the fimi is liable. The same rule prevails in the case of an as- sumed agent professing to act for a principal. Story on Agency, § 253, states the rule thus : "So, if a person should sign or endorse a note, as agent for another, without authority, and the principal should afterwards, upon full knowledge, promise to pay it accord- ingly, that would amount to a ratification of the act." (Byles on Bills 34; 2 Penr. (& Watts' P. R. 160-177; Sweetzer v. French, 2 Cush. 309; 9 Ala. 313; 3 Humph. 597; 10 Verm. 268; 4 Seld. 398.) But it is objected by the appellant's counsel that, in order to be bound by the subsequent ratification, there should be a consideration to support it. In none of the cases cited is the subject of a considera- tion, to support the promise of ratification, alluded to as necessary. But it has been held that it is not necessary to ratify in writing, although a writing was necessary to the validity of the original agree- ment ; and I am of opinion that no new consideration is necessary to sustain the ratification. (IMcClean v. Dunn, 4 Bing. 722; Davis V. Shields, 24 Wend. 325 : Lawrence v. Taylor, 5 Hill 107.) By the act of ratification, the parties are placed in the same position, in all respects, as if the contract had been originally authorized. If the defendant would have been liable on this note, had he au- thorized his name to be used by Mr. Smith at the time the endorse- ment was made, he is liable now. Of his liability, under such cir- cumstances, there can be no doubt. The judgment should be affirmed and a new trial ordered, with costs to abide the event. All the other judges concurring. Judgment affirmed.^ * "The rule of law, that omnis ratihabitio refrotrahitur, etc., seems only appli- cable to cases where the conduct of the parties on whom it is to operate, not being referable to any agreement, cannot in the meantime depend on whether 24 — Reinhard Cases. r 370 RATIFICATION. REYNOLDS v. DOTHARD et al. 1847. Supreme Court of Alabama, ii Ala. 531. Error to the chancery court of Talladega. The bill was filed by the plaintiff in error, and states, in substance, that T. & W. Dothard recovered before a justice of the peace of Randolph county, four judgments for $50 each, against one Weir, and one Adrian, from which an appeal was prayed by Weir, tO' the next county court of Randolph, and a bond executed in the penal sum of $455, conditioned to prosecute an appeal on the judgments so obtained, to which the name of the plaintiff' in error was signed, with- out his knowledge or consent. That he never saw the bond until after the rendition of a judgment upon it against him in the county court, as surety for the appeal, and that he did not execute it, or authorize any one, either verbally or in writing, to execute it in his najne, and that it is a base forgery. That Adrian, a party to the notes, has property sufficient to satisfy the judgment, but that the sheriff is about to levy and sell his property to satisfy it. Weir hav- ing absconded, etc. An injunction was decreed according to the prayer of the bill. Thomas Dothard, one of the firm of T. & W. Dothard, answered the bill, and as the material allegation of the forgery of the complain- ant's name denies all knowledge of the facts, but states his behef, and charges, that Weir had full authority to sign the name of complain- ant to the appeal bond. Adrian also answers, and states that he was merely the surety of Weir. He denies all knowledge of the alleged forgery, but states his belief from information, that if Weir did sign the name of complain- ant to the bond, he was authorized to do so'; and that Weir, when he left the state, placed funds in the complainant's hands to satisfy the judgment. Judgments pro confesso were taken against the other defendants. The testimony which was taken in the cause is sufficiently noticed in the opinion of the court. The cause coming on to be heard before the chancellor, on bill, answers, and proof, he considered that the evidence established a parol authority to Weir to execute the bond in his name, a subsequent ratification of it by him, and also that Weir had placed funds in his hands to discharge the judgment, and decreed that he should be compelled in equity to confimi, and give validity to the appeal bond, and dismissed the bill. An appeal is prosecuted from this decree to this court, and is now assigned as error. there be a subsequent ratification."' Lawrence, J., in Right v. Cuthell, 5 East 491, 499- >:/ON'P, .! -We shall n-. authority nt in any case : in the name o;' ratification by th' . iv;jOwledge of all th aeral, an admission : • act. Much moi se to be arlecteu f tlie agent, or aiiec The consequence tv .d been legally authc xecute the ■ jeopardized, precise^. , .. .vould have bv...., .. ..xv. .. ■ :uted the bond in person, and this consequence has resr 1 any trust reposed by them in the agent, b ' laintift' and his agent, for such he was, ad to act for him. In such a case, a - ne, with full knowledge of the facts, ^- if the agent had been duly authorized in the first in 1864. Supreme Court of Illinois. 35 ill. 544. E, J. — Strong Wadsworth and James V> 57, failed in business in Chicago, having They were indebted to Williams, tht .'Usand dollars. In F ' 1861, S! n C. Ambler entered 'Tanger j to the former i;ging to his mot _ \ and Wadsworth rec :d the bai; '^V'- the name of S. . , .rth ^- '" into between Ambler. aotin>; jf the opinic- 103. bind- :atioii has a !■ .y that an age. and that the .'nt and effect. :;the contract KATlFirA Error to th( The bill wa..-- that T. & W Randolph ; ajid one A' next count of $45 c . ohfcv.r- Deliti ant t*-- Ic n ' , lUG Tht, I C--' i'. the opin ''"' cansc "'5. and to disc: siiusiaiice, '.■ peace of u.st one Weir, >>- Weir, to the 1 Ihe penal, sum ... judgments so •r was signed, with- -a\v the bond until i him in the county not execute it, or *o execute it in his ■ a party to the . i • ci:i>i' , . lit, but that the ^ell his property to satisfy it. Weir hav- ! junction was decreed according to the ilrm of T. & W. Dothard, answered ; ition of the forgery of the complain- of the facts, but states his belief, and ■''i-"iv to sirn the name of complain- ...^ .I...U ,,.. >..:■ merely the surety o. of the alleged forgery, but states his '-Vc\: '• ! sign the name of complain- ' -o; and that Weir, when he c complainant's hands to satisfy the taken against the other defendants. I'll iti the r;ii-:;(^ i< i:ii ^h^'^'rlf1^• 11(11 irpd M ix'r')T"e inc {■paiicciior, on fj. Ihnf the evidence establishe iui, be rati- le principal, and the r. u:> '.he v;er- of the act. It is u^ . , that a back S0 as to cut off : ' •■■^^'S right;- mbtless true as a ge •■, but if the ' 1 merely for t' i of a clc;;' ' m would be h reooj- interferes \. luity. We . The debt of Wiiiiams accrue. '^i^^rtook to create a .- irinrrci.",, ...■. The credit up ing ;trol which the ■ of So far as she ilie debt had n - a^ worth was ; .se- acts of Mrs. Ambler's iv partner- 'lach acts were author iz . or not. vith the complainants, t^ ■e firm? ' -"nsequence of mot^'- .. .X Wads- of exchang-e on e same day lieriff, and the i ;>em '67^ llAilFlCAIU,'- and W'adsworth, by on a salary of ten .' beyond his wage When, however found to be lar. nes ager of his pendent <>y ^VI.k•^ r sou:'' ' iuf; Tt-: after a- propert and thv. (lie sheriff ans ncfhhip. and she al- and T)raying that r.ayii'cni ■ i" partnei below so df "" ■ should be 1' bnsincs . -St therein ^rcy Ambler. i.T profits were Ambler allowed \vas lurniSiK is acting as r some extent, de . > .Mmt. small mean r her benefit, and which b- ' " arrangement wit ' i she knew notb !. led to this sui; merely acting ut: ::;j:i :u;iiin; :- ^ ;t against Strons. sworth, on his old claim against then, ed a judgment against Strong Wadb- Mi served) for over nine thousand dol- i ; •' : ' ' vied upon the fur • orth&Co. Tl- •iousand dollars, was pai' ,1 I'iff in the execution. Irr "ents were confessed by Strong c. foil. vv<:- One in favor of Rutter Uirs, one in favor r^ r.i .ira -• ly-six /jSp^ dollars, an for sixtecti hundred dollars, aiv writ of replevin tb .n behalf of themselvr s'orih ik. Co. praying that tb- be the partnership propert; Ambler, jmd, as such, marshalcv > the e- '-• ' -^ of the individun iants V s Mercy AmbU; •1. Williams am nership betwec > >a!.ii v,-.'-t be applied ii the final hearing the couv :; the record to tliis court. 1 = VVadsworth and Mrs. Amble EFFECT. 373 are admitted to be insolvent, and that the former had drawn all the profits due to him from the business. It is apparent, from this statement of the facts, that the decision of this case depends upon the effect to be given to the answer and cross-bill of Mrs. Ambler, by which she ratifies the act of her agent in making the partnership arrangement with Wadsworth. It is denied, however, in the first instance, by the counsel of appellant, that she has legally ratified, there being no proof of authority from her to her attorneys to file the answer or cross-bill, and no proof of her signature to these pleadings which are signed by her in her own proper name. It is sufficient to say in regard to this, that, in the absence of proof to the contrary, the authority of an attorney of this court to appear and plead for such parties as he claims to represent is pre- sumed. If the appellants desired to raise this question in the court below, or to impeach the genuineness of Mrs. Ambler's own signa- ture to the answer and cross-bill, they should have filed an affidavit and asked for the proper rule. Not having done this, they cannot now deny the authority of Mrs. Ambler's counsel to file such answer and cross-bill as they thought proper. The other question is more difficult, but we have arrived at the conclusion, that the ratification of Mrs. Ambler makes the arrange- ment between her son and Wadsworth good from the beginning. So far as appears, he had no authority to create a partnership between her and another person, but if an agent assumes to do an act of this sort, it may, like any other act of an agent not unlawful, be rati- fied by the principal, and the ratification relates back to the per- formance of the act. It is urged, however, that a ratification can- not relate back so as to cut off the intervening rights of third persons. That is doubtless true as a general rule, but if the doctrine of rela- tion is applied merely for the protection of a clearly superior equity, such application would be consistent with recognized legal principles, even though it interferes with the claims of third person resting upon an inferior equity. We consider the case before us one of that character. The debt of Williams accrued long before John C. Ambler undertook to create a partnership between his mother and Wadsworth. The credit upon which it accrued did not spring from any control which the latter acquired over the property of Mrs. Ambler. So far as she and her property are concerned, the contracting of the debt had no connection with them. Williams, as creditors of Wadsworth was placed in no worse position in conse- quence of the acts of Mrs. Ambler's agent in forming the partner- ship, whether such acts were authorized by the principal or not. But how was it with the complainants, the creditors of the firm? Their debts arose in consequence of money paid by them to S. Wads- worth & Co., for bills of exchange on New York, on the same day with the levy by the sheriff, and the identical money paid by them 374 RATIFICATION. was part of that seized under the levy. Mrs. Ambler, by giving to Wadsworth the control of her small capital, through her agent, had enabled him to start the business of S. Wadsworth & Co., and procure credit, by selling drafts to these complainants and the other creditors. Although Mrs. Ambler was under no legal obliga- tion to ratify these proceedings of her agent when they came to her knowledge, yet she was under a certain moral obligation to protect, to the extent of her power, those innocent creditors who had become such, through means furnished by her, and through the acts of her general agent. She recognizes this duty, and by ratifying the act of her agent, has made herself personally liable, as a partner in the firm of S. "Wadsworth & Co., for the debts of the firm, and is now liable to be sued therefor. Wright v. Boynton & Hayward, 37 N. H. 9. These are debts which would have had no existence, but for the acts of her agent in dealing with her property, and connecting her in a partnership arrangement with Wadsworth. If she is now willing to ratify this arrangement, and assume all the liabilities of the firm of S. Wadsworth & Co., ab initio, as she does by ratifying, is it not manifestly just that the other incidents of partnership should follow, and the partnership assets be first applied to the payment of the partnership debts? Is it not plain that the equity of the credit- ors of S. Wadsworth ,& Co., as against the assets of the business done under that name, and as against the capital furnished by Mrs. Ambler, is superior to that of individual creditors of Wadsworth, whose debts were contracted long before this business was com- menced ? If Mrs. Ambler is willing to ratify the acts of her agent, are not their equities, as against Williams, precisely what they would have been if he had full authority to do what he did? We think so, and it follows that the lien of Williams' execution must be treated, in a court of equity, as only attaching to whatever inter- est Wadsworth had in the assets of the firm, after the payment of the firm debts. The decree of the superior court must be affirmed. Decree affirmed.^ ^ "Now, although the general rule is, that the ratification relates back to the time of the inception of the transaction, and has a complete retroactive effi- cacy, or as the maxim is — Omnis ratihabitio rctrotrahihir — yet, this doctrine is not imiversally applicable. Thus, if third persons acquire rights, after the act is done and before it has received the sanction of the principal, the ratifi- cation cannot operate retrospectively, so as to overreach and defeat those rights." Baldwin, J., in Taylor v. Robinson, 14 Cal. 396, 400. See Kempner v. Rosenthal, 81 Tex. 12. o/^ »rapetent le defendant, to cancel wliat tney had ch lyment was therefore not "■■r.-,-.i C. E. — [After staciiit: v r the case, proce' jelore tii . He- did not, however, com- to the J,. .1 ... ,,. .^ ,,.d no au'-^'-'i''" • ''^ the con- professed to act for the defendant, an^ believed so acting, and V ' ' ^ - .i.- But when the lOUt thr And - :ea of payment ado; ..^f-.T-^ -.r-r'rn that S' been ur ■'.\\- '■:■ <;iear, ■" ■ hehalf of -. nt on the r< the 111*'. ;iad au<. in fac' ill the moiit ; insisted on kee '■■ i^ed the aci ^outnaii , by giving her agent, &: Co., and md the . obliga- c to her protect, : • had becxDme acts of her \g the act of mer in the firm nd is now liable id, 37 N. H. 9. ■ , but for the acts rry, and connecting her in a ii' ir c.hn is now willing iabilities of the by ratifying, is tnership' should payment of •t the credit- ui tiie business done ; furnished by Mrs. creditors of Wadsworth, ■ ic this business was com- ■ ratify the acts of her agent, ns, precisely what they do wliat he did? We on must er inter- est r'fter the pajmient of the ii*ii. The d< I")ecree an and defeat those EFFECT. 375 WALTER V. JAMES. 187 1. Court of Exchequer. L. R. 6 Ex. 124. The defendant being indebted to the plaintiff, S., who had acted as his attorney in the matter of the plaintiff's claim (the amount of which was disputed) but whose authority has been countermanded, paid to the plaintiff 60/ in discharge of the disputed claim. The plaintiff afterwards, at the request of S., and before any ratification by the defendant, repaid to S. the 60/, and sued the defendant for the debt. The defendant pleaded as to 60/ payment, and relied upon the payment made by S. : Held, that it was competent to the plaintiff and S., before ratifica- tion by the defendant, to cancel what they had done, and that the plea of payment was therefore not proved. Kelly, C. B. — [After stating the facts of the case, proceeded: — ] Southall, therefore, in paying the debt, appeared to act as the defend- ant's agent ; but it turned out afterwards that although he had orig- inally been authorized by the defendant to come to an arrangement with the plaintiff, and to make this payment, that authority had been revoked before the payment was made. He did not, however, com- municate to the plaintiff that he had no authority; on the con- trary, he professed to act for the defendant, and the plaintiff believed him to be so acting, and received the sum paid in full satisfaction of his debt. But when the plaintiff found that the money had been paid without the defendant's authority, he returned the money to Southall. And now the question is, whether the defendant can by his plea of payment adopt and ratify the act of Southall, al- though before action that act had, by arrangement between the plaintiff and Southall, been undone. Now the law is clear, that where one makes a payment in the name and on behalf of another without authority, it is competent for the debtor to ratify the payment ; and there seems to be no doubt on the authorities that he can ratify after action by placing the plea of payment on the record. Prima facie, therefore we have here a ratification of the payment by the defendant's plea ; but whether the payment was then capable of ratification depends on whether previously it was competent to the plaintiff and Southall, apart from the defendant, to cancel what had taken place between them. I am of opinion that it was compe- tent to them to undo what they had done. The evidence shows that the plaintiff received the money in satisfaction under the mis- taken idea that Southall had authority from the defendant to pay him. This was a mistake in fact, on discovering which he was. I think, entitled to return the money, and apply to his debtor for payment. If he had insisted on keeping it, the defendant might at any moment have repudiated the act of Southall, and Southall 376 RATIFICATION. would then have been able to recover it from the plaintiff as money received for Southall's use. I am, therefore, of opinion that the plaintiff, who originally accepted this money under an entire misapprehension, was justified in returning it, the position of the parties not having been in the meantime in any way altered, and that the defendant's plea of payment fails. The rule must ac- cordingly be made absolute. Martin^ B. — I am of the same opinion. The rule which I con- ceive to be the correct one may be stated as follows : When a pay- ment is not made by way of gift for the benefit of the debtor but by an agent who intended that he should be reimbursed by the debtor but who had not the debtor's authority to pay, it is compe- tent for the creditor and the person paying to rescind the transac- tion at any time before the debtor has affirmed the payment, and repay the money, and thereupon the payment is at an end, and the debtor again responsible. This being, in my judgment, the true rule, the plaintiff in this case was entitled to recover. KellYj C. B. — My brother Cleasby concurs in the judgment of the court. Rule absolute.^ DIXON, C. J., in dodge v. HOPKINS. 1861. Supreme Court of Wisconsin. 14 Wis. 630. -< j;: :|: ^^J^T ^ ^j-g j-jg^(. ^q asccrtaiu the eft'ect of this want of author- ity upon the rights of the defendant. It is very clear, m the present condition of the case, that the plaintiff was not bound by the con- tract 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 in- tention 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 binding contract against 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 ^ "It is a familiar maxim that ratification has a retroactive efficacy, and re- lates back to the inception of the transaction, and, when deliberately made with a knowledge of the circumstances, as before stated, cannot be revokei or recalled." Maxey, J., to jury in Russ v. Telfener, 57 Fed. 973, 974. To same effect see Whitfield v. Riddle, 78 Ala. 99. where i' reclusive anfWcr ■• of tne i iS, the \ He says : ' j . - J wait and specula : up the contract as their own interests might ' ut any reference to prices, and " !'-i^>->- ^'"^ dek, ■>rt. if this was not the deed of i the tim V ' ■ " • ■ ■ Vi (the . act of I viced, iiicre is, I tiiial-:, no prii n such a doctrine." The only po in that case differ materially from those here presented, is, ... .lO part of the purchase money was advanced to the agent. But hat circumstance cannot vary the application of the principle. The -^f the money tc "' "nt did not affect the validity of act, or rnak-f it .ipon the plaintiflF. He was at reject i' a with \^ . although it mv ■'int until he aci.;,,.., .... ._ es to give the contract any v^ -m well av;are that ther- .'.a .;u : I in the bo<')ks. which, i/ erally, a me of the ti s as if it ha'„ em. 594, the coi :ca- "'"''"'''■'■"■ . ' (i. igfh It act of ra. avor of the : basis of a fference bet\ would I hen hav ■ monf'v re 'reived : The who o iV'-:-;^.l.: _oion. vv : ;■ ies not havi- ihat the defend cordingly be nici Martin, T ceive to be U ment is not by an at"'' debtor I tent for tion at in entiri a of the led, and ■ a 1 con ',in a pay t ihe debtor but imbursed by the pay, it is compe- ■ iind the transac- le payment, and an end, and the -ft", the true rule. jVids^Ticnt of 630. condition ot M'.Ci if he W'! ■ ' '■'le cov.u,. in the <■: :. uc'ciidant for of that of the ci contrae: ■A its e>: on principle and auti Jato:- or r!,-cai5ed.'' Mvxey, J , '['•J same effect see \Vh effect of this want of author- 1 ' ^ very clear, in the present i- not bound by the con- i at any time before :;e defendant bound? tiff, by his sole act of ratification, jii him? We answer both these covenants were mutual — those of '- '!■ money being in consideration . 'ance of the lands. The in- lally bound — that - conid set it np lier party neglects or refuses ;• , and re- ' fi 'tely made • iiated. cannot be revoked rier, 57 Fed 973, 974. )9. EFFECT. 377 to bind himself, the instrument is void for want of mutuality, and the party who is not bound cannot avail himself of it as obligatory upon the other. Townsend v. Corning, 23 Wend. 435, and Same V. Hubbard, 4 Hill 351, and cases there cited. The same authori- ties 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 subse- quent ratification of the party who was not originally bound. In that case as in this, the vendors had failed to bind themselves by the agreement. 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 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 binding 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 of 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 Law- rence V. Taylor, 5 Hill 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 Newton v. Bronson, 3 Kern. 594, the court say : "That a subsequent ratifica- tion 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 foundation of a right 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 378 RATIFICATION. seeks to avail himself, by subsequent 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, 192, note. The principal in such case may, by his subsequent assent, bind himself, but if the contract be executory, he cannot bind the other 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 v. Taylor and Newton v. Bronson, were both actions in which the adverse party claimed rights through the agency of individuals whose acts had been sub- sequently ratified. And the authorities cited in support of the propo- sition laid down in the last case (4 Wend. 219; i Pick. 372; 3 Hill 552; 5 id. 137; 9 Cranch 153, and 5 Wheat. 241) will, when examined, be found to have been cases where the subsequent as- sent was employed against the persons who had given it and taken the benefit of the contract. * * ^■''^ SHEFFIELD and Others v. LADUE. 1871. Supreme Court of Minnesota. 16 Minn. 388. Ripley, C. J. — The defendant, a traveling salesman for R. I. Johnson & Co., and having in his possession a pair of horses, the property of his employers, with authority from them to sell or ex- change the same, exchanged them with the plaintiflfs for a pair of horses belonging to the plaintififs, and for the agreed difference in value between the two, executed and delivered to the plaintiffs the following note : "Ninety days after date for value received, we promise to pay to the order of Sheffield and Leary, two hundred dollars, at H. Wilson & Co's bank, with interest at seven per cent. "Fairbault, April 3d, 1868. R. I. Johnson & Co., "Per Jay Ladue." From the bill of exceptions in the case, it appears that at the trial there was evidence tending to show defendant had no authority ^ Followed in Atlee v. Bartholomew, 69 Wis. 43. Compare In re Portuguese Consol. Copper Mines, Ltd., L. R. 45 Ch. D. 16. vm can exonerai ■ xi:c court refused so ■■> • The court charired the ^.ir in the ■ -t if th. eieucia ' plaintifts contend that the fiM._ :v,.,. .., vi, -laintilfs for w'' deceit, or on i:hf ii :.c "..■. liable oi In our opinion, however, the '^ "ho, without authority, excuicb an •ther whose name he puts to it, and saxa a-utLuii.-,. . ,:-.e- -itephens, i ty is decidedly that ai. i Paisons Cent. 68, 69; [.. & E( iliams, 5 Gray ~. ■■'- ■ L. tv ■■ V. Yn /ork c; '6^n' c rnif V MIC'" ; ■;e na:i: 1 li ■ ,-••.: 1 1 horized a third against 'validity • incipal. ■ by his lory, he noose, avail ii he does the contract, comes mutually vvr.eic ' '' " though Hirty h>e ,\ It is . ' s which • wton V. party claimed li^d been su1> f the propo- ... ^ly, 1 Pick. 372; 3 Wheat. 241) will, when ' lent as- i.d taken T^;:: J. ;88. RiPLEi salesman for R. ' pair of horses, the thetri to c^]1 or ex- witii ti ' • •.nd for _, . ii; ■■ to thefore ratificanon. nor m any case : suited to plaintiffs from defen^-i'"':; ^^t before. >...,...,.... ,. ch the effect of making the r. ■ thus relate back, would put the plaintiffs in a worst '" " ''■ ' ' '-.::ve vise been in, in consequence e- it. bill of exceptions in this case, hon'ever. not only does not •t to set out either the evidence or * full, but it con- .. iiothing, aside from the instruct; - nvn \> >>-;.-?! can ha gathered that there was an lat tliere had been any rcf-'- - ■ • " to be drawn from the ^c the ratification avail, not:, intift's, and that ^ -^ ■' ■■ '■ infer that a Vc '.% would not, 01 coiUie, :ir)se v ■~e. >n be drawn as a state of of such ratihca: ' n ; ' , is to be himsei ' i-.-'sitate to affirm - i.;':!iv i)c iutcrr;.' . York it would p. ii the. authoi party iL should now be tx: guiutd authorit;*'. not !vie ■ by Mr. ; courts V ;at of a, and ;ect.ion stated i. «_' . v_ i , 0} such a rule, for parr ; neither party in- to maK ed, we think the y put. !: by such a rule ke a CO!: [larties \v' ' •'nanv . vvould h: ' p:-:i!.ij>il. R'M ■wiiv our'. . _ : . \Valker v, ice, that the doc- ■ ta ui uit .jt:> !?ions referred to, 1 be taken to be as they state it. founda' ' vhat the court of n and h . :. This being so, ontract ^vilich purports to be the ■i>i contract of B? ur>' V. Ellis, this problem is thus ,,^,- ,-,: -Miiwu-ity from another exe- ;y who takes it under same remedy against : have had against the nd, and (to give him ■'■V of contracts) the ii wiii i ■ surplusage. new contract for the parties, '■ 'lave the same remedy as 1 if there had been any Iilm which a if a fraudulent inter, est only. The court of app; .'osed on can recover full m- •"xeniplary damages besides, c, the principal and inter- •st, in any event, be con- EFFECT- 381 sidered as a concurrent remedy with the remedy in case, and on the implied warranty. White v. Madison, supra, 124. Why violate the first principles of the law of contracts to give another, it may be, a less effective remedy ? This note, in our opinion, cannot be treated as the note of de- fendant; neither was it, when executed, the note of his employers. Thereupon an action in the nature of an action on the case lay against defendant for falsely assuming authority to act as agent. Parsons' Mer. Law, 148, and authorities already cited. But if his employers ratify his unauthorized act in signing their name, the signature becomes theirs, and the note becomes theirs when executed, for the ratification relates back to the execution. The plaintiffs have got what they bargained for, and have no longer any cause of action for damages against the agent. This would not hold good, of course, in cases in which such suit for damages had been brought before ratification, nor in any case in which injury had resulted to plaintiffs from defendant's act before ratification, or in which the effect of making the ratification thus relate back, would be to put the plaintiffs in a worse position than they would have otherwise been in, in consequence of such unauthorized act of de- fendant. The bill of exceptions in this case, however, not only does not purport to set out either the evidence or the charge in full, but it con- tains nothing, aside from the instructions themselves, from which it can be gathered that there was any evidence tending to show that there had been any ratification at all, unless such an inference is to be drawn from the statement that "there was no evidence offered or received on the trial, except such as related to the author- ity of the defendant to make the note, and the subsequent ratifica- tion of this act by R. L Johnson & Co." The plaintiff's objections to the instructions given, viz.: That to make the ratification avail, notice of it should have been given to plaintiffs, and that from the language of the instruction they might infer that a ratification after suit commenced would be a defense, would not, of course, arise in the absence of any such evidence. If it should be thought that it is fairly to be inferred from said statement, that there was evidence tending to prove a ratification, no inference can be drawn as to when such ratification took place. The validity of a ratification does not, in general, depend on its being communicated. Bayley v. Bryant, 24 Pick. 198. Therefore, before the question of notice could become material, it would be necessary to show a state of facts imposing a duty on defendant to notify plaintiffs of such ratification, and damage resulting from his neglect so to do. If, for example, the ratification was before the demand made by plaintiffs on Johnson & Co., defendant cannot be held responsible 382 RATIFICATION. for any error prejudicial to plaintiffs, into which they might be led by the statement of Johnson & Co. in refusing to pay, that defendant "had no authority to make or give said note," until it is shown that he was cognizant thereof, and neglected to notify plaintiffs of the true state of the case ; for the defendant could not be taken to anticipate that Johnson & Co. would meet plaintiff's demand with a refusal to pay, and with a statement, which, though literally true, was false in spirit, suppressing, as it did, the truth, and suggesting a falsehood, viz., that they were not then liable. Plaintiffs, if de- ceived thereby, might be led ignorantly to sue defendant ; but Johnson & Co. being liable on the note, plaintiffs would have no cause of action against defendant; and as to the cause of such suit, it would not have been commenced, if Johnson & Co. had paid their note, or not paying, had not given plaintiff's the false im- pression above mentioned. Johnson & Co., not defendant, are re- sponsible for Johnson & Co's. falsehoods. If, indeed, the ratification had not taken place when the note was present for payment, the defendant might be answerable for the costs of this suit, but in the absence of any evidence as to the time of ratification, this point does not arise. Plaintiff must show error affirmatively. The instruction lays down a correct general rule. If the facts in this case were such that applied to them without qualification it would mislead the jury, it is for plaintiffs to show the existence of those facts. It appears from the bill of exceptions that depositions of members of the firm of R. I. Johnson & Co. were read in evidence by de- fendant, and that certain interrogatories were objected to, either as leading, or calling for incompetent or irrelevant testimony, the ob- jections overruled, and the answers received, to which plaintiffs excepted. But the answers are not set out, and, therefore, we need not con- sider plaintiff's' objections to the interrogatories. The answers may have been favorable to plaintiffs, or if irrevelant, it may be that it would have appeared upon the whole evidence, that they could not have materially injured the plaintiffs, and that the verdict was in all respects altogether according to justice. Judgment affirmed.^ ^Accord: Haight v. Sahler, 30 Barb. (N. Y.) 218; Lingenfelder v. Leschen^ 134 Mo. 55. _ After ratifying an unauthorized act the principal cannot maintain an action against the agent based upon the violation of authority. Halloway v. Arkan- sas Milling Co., 77 Kan. 76. LIABILITY t Section 1. — Contracts. ( a 1 .VUTHORIZED CONTI< OGDEN V. RAYMOND. • 18=3. Supreme Court. of Errors of Connecticut. This was an action of assumpsit. The declaration contained two ■"ts, one of which was g-eneral. The other alleged, that, on or . the first day of April, 1850, the defendant was indebted to :aintifi!;, in the sum of fifty dollars for labor and services be- lat time by the plaintiff done and rendered, in teaching school certain district in Pound Ridge, coiuity of Westchester r. of New York, at the special instance and request ')f \hc nt. The cause was tried at Fairfield, before the c St term, 1852. ; the trial to the jury, the plaintiff introduced d, in evidence, the statutt >> common schools, and * the character in whi. ^ the plaintiff. To t} : ■jected, on the ground ti; le to prove, either count d an employment, by t' •. they were liable t ' oidd be maintained ';at the defendant v to ^T.-onally, for sct--' ;ijat -It was liabi a trus- ..-.ial character. The plaintiff claimed, that the evidence hat the defendant contracted with him, ii> id on his own responsibility ; and, that ^ iiough, in so omtracting with him, hr ■ .uid did 38-; •r prcju nient of ■ ivdu nu author: I he was cogniza: true state of f; anticipate tb-t ■ a refusal to was false ii; a falsehooc. ceived ther- Johnson &• cause (' it wor' th.' pr.. • Kui) that iifs of the be taken to ^ demand with Uterally tru' IS u (•1., , and suggesting not th»' Plaintiffs, if dr - defendant; bi- iS would have Vj I ; and as to tlic cause of such sui* nc'-'l, if Johnson & Co, had paic on plaintiffs the false im- , falsehi had .noc i ;e defendan. defendant, arr ;o when the no .>c. answerable f( je. the absence oi any evidence as to th. n; and even then he is not necessarily liable on the --- iself. Story, in his treatise on agency, p. 322, sa"? ;nen and ot; iaw, though eiLCted IS prmci, thr-rr,.r that but ! 25— R. r that in no case ca: self, as the contract;, to charge him; thuc;, ould without auth '■;*-'* ■ e a deed in the i agent would not ncipal," The s.r ■ Walter, 3 Bai u. ^sachUsetts, in L' lou V. Talbot, 16 id. vlvania, in Hopkirs ew York are so; but thai: thr ri:' irts. V. r.ead. V..,:, .^^., M...v: .■• Nicholson, 12 Eng. L. nv. .. it is not unTr doe<; not 1.. "Jii, aiK t be sued, on V\ unless there arc ■e ... Liie to be DC .y--'-i- t as by the othei 1 lie .R'icndant f- pUiVditi, as tlie :;![>'icity, and in cusions of sr.i'^ ally liable, v.' or - res' a-ent, an" without with tht in such and de- ...ii person - ;iilty of frau'J 13 own pers' ury, that, if >rk, such [J . , as trustee, ^ss promise to be bound. OtT'CGr. ' ject to ' In Ihr irncr a- misrepresen! ;.!-Mntif?, on tiic • claim of the pi ■ roneous view of i,j. defendant was not public asTT.tr ''■ ^ and claimed, thai, somewhere else , I'on. and praye>' _ claim of iiu neWiiere — that a pub ,r ;...-»,. jiiMv 111. and not an individual that, in this case, the defendant couU' 'n the strict sense of the law — and :t as the law requires, and so a- • My liable. ; > , ■'.]■■ ': fcndant filed a bii'. . error, brought the case before th- • ved for the advice of this court. " ;^tion is the admissibility of evi- ' ' *■ ' ■ 'at contracted for . or as a public ;. <>i liic court is not sub • I- i to establish the point foi out to make it admissible ''1 tnjft he made the con- personally liable, un '■•■'' I V of fraud or ■ement. Tht did not ' lUst be li.t Jive the plainli conformity to . 'ined an ■ ..,..,, ..v i^....i.t of law, ^ nild not be classed t;' hlic busi; as iij FOR DISCLOSED PRINCIPAL. 385 to act in an official capacity. We do not readily apprehend why the defendant, deriving his public and official character from the gen- eral law and the election of the people of a given district, under the law, may not be held to be a public agent as much as if he were the agent of the state immediately, or of a county, town, society, or school district. Wherein is the difference? All derive their power from the same source, parceled out, only to be exercised in different jurisdictions and for different purposes. Such we under- stand to be the doctrine of our courts, as held in Adams v. Whitt- lesey, 3 Conn. R. 564; Perry v. Hyde, 10 Conn. R. 338; Sterling v. Peet, 14 Conn. R. 248; Johnson v. Smith, 21 Conn. R. 627. i\nd the same is the law in New York: Olney v. Wickes, 18 Johns. 124. Often has it been held that select men and other kindred officers are public agents, officers of the law, though elected by their re- spective towns and districts. We think, likewise, upon the second point made, that it does not follow that an agent, acting either in a public or private capacity, is of necessity made personally liable, although he does not give a cause of action against someone else. We believe the law to be, that if a person assumes to act and enter into contracts in the name of another as his principal, and does this with an honest intent, openly and fully disclosing all the facts touching his supposed au- thority, or which may be fairly implied from his situation, and espe- cially if he provides against his personal liability, in any event he cannot be held liable unless he be guilty of fraud or false repre- sentation ; and even then he is not necessarily liable on the con- tract itself. Story, in his treatise on agency, p. 322, says : "It seems clear that in no case can an agent be sued, on the very in- strument itself, as the contracting party, unless there are apt words therein so to charge him; thus, if a person acting as agent for another should without authority, or exceeding his authority, make and execute a deed in the name of his principal, and not in his own name, the agent would not be liable thereon, although it would not bind the principal." The same was held in Douriman v. Jones, 9 Jur. 454 ; Polhill V. Walter, 3 Barn. & Adol. 1 14. The same doctrine was asserted in Massachusetts, in Long v. Coburn, ii Mass. 97 (6 Am. Dec. 160) ; Ballou v. Talbot, 16 id. 461 (8 Am. Dec. 146) ; and the same in Pennsylvania, in Hopkins v. Mehaffy, 11 Serg. & R. 129. The cases in New York are somewhat different, but we think there is no question but that the rule laid down by Judge Story is the rule of our courts. We would especially refer to the cases to be found in i Am. Lead. Cas. 432, note to Elwell v. Shaw, and a later case, Lewis v. Nicholson, 12 Eng. L. & Eq. 433. We are aware that it is not unfrequently laid down as a rule of law that if an agent does not bind his principal he binds him- self; but this rule needs qualification, and cannot be said to be 25 — Reixhard Cases. 386 LIABILITY TO THIRD PARTY. universally true or correct, as the cases already cited abundantly show. If the form of the contract is such that the agent personally covenants, and then adds his representative character, which he does not in truth sustain, his covenant remains personal and in force, and binds him as an individual ; but if the form of the contract is otherwise, and the language, when fairly interpreted, does not con- tain a personal undertaking or promise, he is not personally lia- ble ; for it is not his contract, and the law will not force it upon him. He may be liable, it is true, for tortious conduct if he has knowingly or carelessly assumed to bind another without author- ity; or, when making the contract, has concealed the true state of his authority, and falsely led others to repose in his authority ; but, as we have said, he is not of course liable on the contract itself, or in any form of action whatever. The question in these cases will be found to be one of construction of the language and mean- ing of the person who attempts to act for another, and is a ques- tion often attended with very great difficulty and doubt; but when the intention is ascertained, that intention should ever be the rule for deciding whose contract it is. The cases are exceedingly con- flicting, and unsatisfactory, though they contain some principles uni- versally acquiesced in. If the agent is acting in public business, and enters into a contract for the benefit of the public, he is pre- sumed to act in his official capacity, as in Hodgson v. Dexter, i Cranch 345 ; but if he is acting in private business, there is no pre- sumption for or against, and he is or is not liable, according to the language used. The county court held that the defendant did not bind those for whom he apparently acted, and was therefore of necessity liable himself. This is not correct. We have no occasion to comment on other facts of the case, al- though we think that in a subsequent part of the charge there is some obscurity in the language employed in instructing the jury; but we do not think it necessary to go into the question; for we mean to place our decision upon the errors already pointed out. In this opinion the other judges concurred. Judgment to be reversed.^ ^Accord: Jones v. Gould, 108 N. Y. Supp. 31; Laguna Valley Co. v. Fitch, 121 111. App. 607. Compare ]\Iayhe\v v. Prince, 11 Mass. 54. "The legal presumption is, when a known agent deals or contracts within the scope of his authority, that credit is extended to the principal and not to the agent ; and that the dealing is the act, or the contract is the engagement, of the principal alone, as if he were personally present and acting or con- tracting." Brickell, C. J., in Anderson v. Timberlake, 114 Ala. 377, 386. ' , UKlxli 1873. Supreme Contract to recovci fen.i::;!is for a proniissoi ment upon which was f' Trial in the superior ■. for the plaintiff, allowc which it appeared, that known as such by the plamtjft; that they v *■'-" Hanson in selling the note, and that tht_v e money, less a commission, before the former ' rt, during the :i ;se of the note, 1 vv'cit aeiluig iiic note as brokers for Haii:>on, vvhv . ed them to sell it. There was also other testimony t^ ^'v that the plaintiff knew or had reasonable cause to know thest is. The plaintiff denied any such information or knowledge, and red evidence tending to show that there was no disclosure of lilt principal,- and nothing to lead him to suppose that the defendants were not themselves the owners of the note. The defendants asked the court to t in fact agents for Hanson, and disci- • .or the plaintiff knew it, or had reasonable cause to kn •ndants would not be liable. But the court rern>r'l > : ruled that the question was, from whom did i ;d that he was buying the note — from the brol: ; that, upon the uncontroverted facts, prima ■' . was with the ^nd to r e must have oc^ -' state or ought t. , that he was -: ON, J. — This is an a^ tn.-^ cmin'i-.priess of : dff. Tl rar.suiw't'.ijii, . Upon thes. I the court in": on, and a.:-.::. ..- it. or had reasoD \i)c necc- ;at, m i • know it, the is too broad. gs or transaction universally true < If' the fori, iants, and 1'^ aoes not in In: and binds hir; otherwise, an' tain a persor ble; for it it- him. ""' Icnow ity; his for d VV thou.^ some but Vvt <.. mean to : In ' ^ ;lcd abundantly : ni personally 1 . ■. I jr, which he iis personal and in force, form of the contract is iterpreted, does not con- •, . lie is not personally lia- • Jaw will not force it upou , tortious conduct if he has ■\\\d another without author- concealed the true state of rcDose in his authority; but, \:- on the contract itself, j.'..e. question in these ca-'- ction of the language and mc. ither, and is a qu-.:,- d doubt; but when .'i\ iiiUiitioii :>i.ouid ever be the rule is. The cases are exceedingly con- ugh they contain some principles uni- , agent is acting in public business the benefit of the public, he is t pacity, as in Hodgson v. Dexte; in private business, there is no j ;e is or is not liable, according to ourt held that the defendant did 'rently acted, and was therefore is not correct. uraent on other facts of the case, 'jsequent part of the charge therr ■e employed in instructing the jur >ry to go into the question ; for jxi the errors already pointed out iges concurred. I iii. App. (X' "The legal pr ' pe of hi- nt : and ; nf^una Valley Go. v. Fi contracts wi- c principal ai- ' ict is the enp . .'jiaiiy pn -cnt and acting Timberlake, 114 Ala. 377, 3.*^'' FOR DISCLOSED PRINCIPAL. 387 WORTHINGTON v. COWLES and Another. 1873. Supreme Judicial Court of Massachusetts. 112 Mass. 30. Contract to recover back money paid by the plaintiff to the de- fendants for a promissory note signed by one Hanson, the endorse- ment upon which was forged. Trial in the superior court, before Lord, J., who, after a verdict for the plaintiff, allowed the defendants' bill of exceptions from which it appeared, that the defendants were note brokers, and were known as such by the plaintiff; that they were acting as brokers for Hanson in selling the note, and that they paid him the pur- chase money, less a commission, before the forgery was discovered. The defendants testified that, during the negotiations which re- sulted in the plaintiff's purchase of the note, they informed him that they were selling the note as brokers for Hanson, who had em- ployed them to sell it. There was also other testimony tending to show that the plaintiff knew or had reasonable cause to know these facts. The plaintiff denied any such information or knowledge, and offered evidence tending to show that there was no disclosure of the principal, and nothing to lead him to suppose that the defendants were not themselves the owners of the note. The defendants asked the court to rule that if the defendants were in fact agents for Hanson, and disclosed their agency to the plain- tiff, or the plaintiff knew it, or had reasonable cause to know it, the defendants would not be liable. But the court refused so to rule; and ruled that the question was, from whom did the plaintiff under- stand that he was buying the note — from the brokers or from Han- son ; that, upon the uncontroverted facts, prima facie, the transac- tion was with the defendants, and to relieve them from liability there must have occurred such a state of facts that the plaintiff understood, or ought to have understood as a man of reasonable intelligence, that he was dealing with Hanson. Morton, J. — This is an action of contract upon the implied war- ranty of the genuineness of the signature to a note sold by the de- fendants to the plaintiff. The plaintiff claimed that in the purchase of the note he dealt solely with the defendants, and upon their credit. The defendants claimed that they were acting as agents of Hanson in the transaction, and that their principal was disclosed to the plaintiff. Upon these points, the evidence was conflicting. The defendants asked the court to rule "that if the defendants were in fact agents for Hanson, and disclosed their agency to the plain- tiff, or the plaintiff knew it, or had reasonable cause to know it, the defendants would not be liable." Considered as an abstract proposition of law, this is too broad. It omits the necessary element that, in the dealir.gs or transaction 388 LIABILITY TO THIRD PARTY. in question, they were acting as such agents. It may be true that the defendants were agents of Hanson, and known to be such by the plaintiff, and yet if, in the purchase of this note, it was under- stood by the parties that the plaintiff was dealing with and upon the credit of the defendants, they would be liable. An agent may deal so as to bind himself personally ; it is always a question of the intention and understanding of the parties. The presiding judge properly refused to give the instructions in the form requested by the defendants. Instead thereof, he ruled in substance that the question was, from whom did the plaintiff understand that he was buying the note — from the broker or from Hanson? and that if such a state of facts occurred, that the plaintiff understood, or ought to have understood as a man of reasonable intelligence, that he was dealing with Hanson, the defendants would not be liable. These instructions were correct, as applied to the facts of the case. The plaintiff dealt with the defendants. His evidence tended to show that he contracted with them as principals. To meet this prima facie case, the defendants undertook to show that in this transaction they were dealing as agents of a disclosed principal. Unless from their disclosures or other sources the plaintiff under- stood, or ought as a reasonable man to have understood, that he was dealing with Hanson, he had a right to assume that he was dealing with the defendants as principals. The instructions given were to this effect, and were as favorable to the defendants as the instructions requested, with the addition of the necessary qualifica- tion that the defendants were in this transaction dealing as the agent of Hanson. Wilder v. Cowles, 100 Mass. 487. Merriam v. Wolcott, 3 Allen, 258. Exceptions overruled.^ MAURY V. RANGER. 1886. Supreme Court of Louisiana. 38 La. Ann. 485. PocHE, J. — Plaintiffs seek to hold defendants personally liable under a contract of affreightment which the latter had executed as agents. ^ An agent, although acting within his authority for a disclosed principal, may enter into a personal undertaking, by which he will be bound. Fisher v. Hag- gertv, 36 111. 128; Shordan v. Kyler, 87 Ind. 38; Fredendall v. Taylor, 26 Wis. 286. ■ "An agent may expressly contract on his own credit and be bound, even though his principal be known. The declaration of intention and agreement in writing on the part of the agent to bind himself personally may be so ex- plicit as to admit of no denial by parol. But usually where the principal is disclosed, the question is one of fact." Lumpkin, J., in Phinizy v. Bush, 129 Ga. 479, 492. 3«'> iie principal defense is that t' zhout the trar? i< tions which form the ' f' ■• • ners of the vessel in . ...i -. !^, and that they are ;nder ract declared upon. ' '! • favor of plaintiffs t> The pertinent fac In July, 1883, the . for 2,709 bales of cotton, t . Hncia, then on her wav ' - _.,. ^ land, at the rate of 1 :>er poui Lur.ier the effect of the qvi..i u --.w-i. '^ -'■ thorities at the mouth of the pi river, allowed to reach the port oi ;. cw Orlear , with the knowledge and consent of j m to Liverpool by the steamer Chancellor, owned by h of steamers. The bill of lading iss-ued by the latter steamer was to the stt •~-^cia, but it called for freight at the rate of three-eighths <.-i ■■ ■\y, which was executed irom the consignees at Liverpool before \er)'' of the cotton by the Chancellor. It also appears that on .ery some of the cotton was found d-smaged, for which the ^'uppers were charged the sum of ii^ sterling. The demands of plaintiffs is for th ice of freight charges he cotton at the rate of 19-64 of a penny per pound and the ' ges exacted at the increased rate of three-eighths of a p'^'^^^- -^ the amount paid by them on account of the damaged c^ vi-.ole amounting in our curr- Plaintiff's theory, which ^ ir learn district court, under whicli personally liable, presents tv\ ^ -t. The agents of merchnnts residmg in .nother state, are personii" ■ ^'''>^. .; question buying t! such a would r^e true that J be such by •, it was under- with and upon An agent may •^^stion of the .-.iding judge ' m requested by -stance that the land that he was n ? and that if .; understood, or 1 ;:■..' intelligence, that , ould not be liable. to the facts of the P> evidence tended' To meet this . that in this - agents of a disclosed principal. other sources the plaintiff under- man to have understood, that he ' ' '.c'nt to assume that he was : ' ■ ; ; The instructions given ' ibie to the defendants as the v>n of the necessary qualifica- ■! this transaction dealing as the chat the undert>j le^- ior, M.-t;-. ATfrr under a contract agents. en!c> ufertv, 30 Hi i 2>j : ^^imi'' 286.' "A- '■' may expt' thoi cipal be I RANGER. ..........> \nr. .Sr iold de' l^ei :yj!i;ai;y iiai>it,- which had executed a? FOR DISCLOSED PRINCIPAL. 389 The principal defense is that the defendants acted throughout the transactions which form the basis of this suit merely as agents of the owners of the vessel in whose name they had signed the bills of lading, and that they are not personally liable to plaintiffs under the contract declared upon. They prosecute this appeal from a judg- ment in favor of plaintiffs for the full amount of their claim. The pertinent facts in the record are as follows : In July, 1883, the defendants executed bills of lading to plaintiffs for 2,709 bales of cotton, to be received on board of the steamer Gracia, then on her way to this city, and consigned to Liverpool, England, at the rate of 19-64 of a penny sterling per pound. That under the effect of the quarantine then established by the state au- thorities at the mouth of the Mississippi river, the vessel Gracia was not allowed to reach the port of New Orleans, whereupon defend- ants, with the knowledge and consent of plaintiffs, shipped the cotton to Liverpool by the steamer Chancellor, owned b\^ a different line of steamers. The bill of lading issued by the latter steamer was to the steamer Gracia, but it called for freight at the rate of three-eighths of a penny, which was executed irom the consignees at Liverpool before delivery of the cotton by the Chancellor. It also appears that on delivery some of the cotton was found damaged, for which the shippers were charged the sum of 118 pounds sterling. The demands of plaintiffs is for the difference of freight charges on the cotton at the rate of 19-64 of a penny per pound and the charges exacted at the increased rate of three-eighths of a penny, and for the amount paid by them on account of the damaged cotton, the whole amounting in our currency to $2,977.10. Plaintiff's theory, which was adopted b}- our learned brother of the district court, under which they propose to make the defend- ants personally liable, presents two propositions of law : 1st. The agents of merchants residing in a foreign country, or in another state, are personally liable, whether thc}^ describe them- selves as agents or not in the contract. In such cases it is pre- sumed that the credit is given exclusively to them to the exonera- tion of their employers ; but the presumption may be rebutted by proof that the credit was given to both, or to the principal only. 2nd. Where an agent fails to disclose the name of his principal, he is bound personally. While our appreciation of the facts in this case would justify the conclusion that the defendants would be exonerated even under the stringent and narrow rule contained in plaintiffs' first proposi- tion, we prefer to rest our conclusions on other grounds, and to withhold our sanction of a principle which once prevailed in some English courts, but which has long since been repudiated by more progressive and enlightened jurisprudence, not excluding English tribunals. 390 LIABILITY TO THIRD PARTY. The rule was formulated by Judge Story in his work on agency, predicated on some adjudications in the jurisprudence of England, but he lived long enough to appreciate its harshness and its dam- aging effect on international commercial intercourse, which was subsequently encompassed in more liberal ties, and became in time immeasurably increased and facilitated by the application of steam to navigation on the seas, the invention of the electric telegraph, and the multiplicity of railroad communications. Hence we find him in the revision of his work yielding a cheerful compliance with modern adjudications on the subject-matter, by the following ma- terial modification of his views as originally enunciated : "And probably the better rule is that the agent of a foreign principal is not, as a question of law, personally liable on every contract made for his principal. It is rather a question of fact in each case, a question of intention, to be ascertained by the terms of the particu- lar contract and the surrounding circumstances." Story on Agencv (6th ed.), § 268. In the next section, 268 "a," the learned author adds another very wise and very significant qualification to the rule in the following words: "This presumption of credit being given alone to the agent, and not to the foreign principal, applies with the most force to purchases made by an agent for a foreign principal ; but when a written contract is made, and expressed to be with a foreign princi- pal and not with the agent, the latter is not liable, although the con- tract be signed by him, for and on account of the foreign principal." These principles are unqualifiedly sanctioned by respectable au- thority of other states of the Union ; and in connection with the second proposition advanced by plaintiffs, they have been followed in several cases by our own court. Oelricks v. Ford, 33 How. 49; Lyon V. Williams, 5 Gray 457; Bray v. Ketell, i Allen (Mass.) 80; New Castle v. Red River R. Co., i R. 147 ; Zacharie v. Nash, 13 La. 20; Nott V. Papet, 15 La. 306; Thorne v. Tait, 8 Ami. 8, 14 Ann. 448 ; Parlange v. Faures ; Spotts v. Cowan, 9 Ann. 520. In our examination of this case we have been guided by the jurisprudence thus established, and we conclude that the case is clearly with the defendants. In a contract of affreightment, such as the one disclosed in this record, we find an apt illustration of the wisdom of the rule that in determining the question of the presumption as to which of the parties credit is given, which is the vital issue in all such cases, courts must deal with the question of fact in each case, with the question of intention to be ascertained by the terms of the particular contract and the surrounding circumstances. Now in this case the record shows that defendants were (like plaintiffs) commission merchants and factors and dealers in cotton; and that as an appendage to their main business they undertook the agency of a line of steamers known and designated as the Line of Stcatuers,' ;:n Liveii > port. iH lure of their connc stecinu:- whose :^y entered into t. made r.laintiffs by the \ • "'ho the contract betv as if est to them on evci y ding- which were .ctendant accepted, and at once trair -cment by tl; rts a commercial security. The heading of the bill cu ...s" "Louis Ranger & Co., in the bill is made in the n.: ! : lamander and owner,- rs as agents. 11, later on, circumstances prevented the iiter,. 11 tract through the steamer contemplated by the :s were at once notified of the circtimstances, and of the ii" che defendants to make the shipment by another steamer, the L ilpr. of the "Harrison Line," and were requested to change th< nee accordingly; all of which was accepted without murmur ection by plaintiffs. " And the record further shows that ii a "cable" to the managers of the line at Liverpool, the de- (s also notified them of the unforeseen disability of the vessel carry out their contract with plaintiffs, and that the consent of .aid managers was obtained to operate the change of shipment to the Chancellor. '" -^n sued in this case, the defendants again reiterated in their a statement of their true character in the premises and ■ their real and legal connection with l!ie contract, and they their previous disclosure of their ag^ency as well as th- :.naging owners of the line of steamers. ■ : ■ .: that they were the agents of the "Serra & Co.. of Liverpool, managing ; a ners," and dei We must hold these acts as ; .;+itiH-.' •.. ance vvith the very riile invok ::'^' ' mple legal and equitr. '!.-:, d1 personal liability . l any expression as to tUe rigliL of j !n against any other party to the cont; e view-; as herein expressed we eliminate all di- erits of their claims against the steamet Graci^i ,.:5. The dj'-ej-sion will involve questions of gre aid of tractive study, but it would answer no useful V— - '' lO conclusicM which we have reached. It is therci\!re ordered, adjudged and deer- ' ri ■spealed fiuni be annulled, avoided and r> v rdered and. decreed that plaintiffs' demand aj^ are in>- an-. :i- ^cr he rJABILI" ted on some adji I'jL iie lived long < aging effect on in* subsequently encon: , imiiieasurably incre: to navigation on tli- the multiplicit}-^ •^"" in the revision modern adj'- ' terial mo . ..xiJ him ■ compliance with i-itiaiu: , <:y the following ma- ^ originally enunciated: "And agent of a foreign principal is ;, liable on every contract made a question of fact in each case, a .^; lined by the terms of the particu- umstances." Story on Agency arned author adds another ver\ n to the rule in the following being given alone to the agent, tl, applies Avith the most force to r a foreign principal; but when a pressed to be with a foreign princi- 'U.ter is not liable, although the con- >n account of the foreign principal.' " • sanctioned by respectable au- u ; and in connection with the plaintiffs, they have been followed :t. Oelricks v. Ford, 33 How. 49; P>ray v. Ketell. i Allen (Mass.) 80; f K 147 ; Zacharie v. Nash, 13 La. :. Pait, 8 Ann. 8, 14 Ann. 'twan, 9 Ann. 520. we have been guided by the aivrl we conclude that the case is contract 0.1 ., we find an in determining the parties credit is giv..i. courts must deal with question of intention to contract and the surrov Now in this case tb plaintiffs) commission 1 and that as an appen.: ch as the one disclosed in this f the wisdom of the rule that ) resumption as to which of the .' vital is the terms of the particul.:'- ,^ices. ^vs that defendants were (like i factors and dealers in cotton; main business they undertook ■■l^i,^■n a.Mil i1f";io"iiatP'f'; -nv iht- FOR DISCLOSED PRINCIPAL. 391 "Serra Line of Steamers," plying between Liverpool and this port. The nature of their connection with the steamer Gracia, for whose account they entered into the contract under discussion, was made known to plaintiffs by the very freight brokers, Dobell & Bell, who negotiated the contract between them and the defendants, and was made manifest to them on the very face and in every line of the bills of lading which w^ere executed by the defendants, formally accepted, and at once transferred by endorsement by the plaintiffs as a commercial security. The heading of the bill contains the words : "Serra Line of Steam- ers," "Louis Ranger & Co., Agents, New Orleans ;" every stipulation in the bill is made in the name and for the account of the steamer, her commander and owners, and the contract is signed by the de- fendants as agents. When, later on, circumstances prevented the literal execution of the contract through the steamer contemplated by the parties, plain- tiffs were at once notified of the circumstances, and of the intention of the defendants to make the shipment by another steamer, the Chan- cellor, of the "Harrison Line," and were requested to change their insurance accordingly ; all of w^hich was accepted without murmur or objection bv plaintiff's. And the record further shows that through a "cable" to the managers of the line at Liverpool, the de- ifendants also notified them of the unforeseen disability of the vessel to carry out their contract with plaintiffs, and that the consent of said managers was obtained to operate the change of shipment to the Chancellor. When sued in this case, the defendants again reiterated in their answer a statement of their true character in the premises and of their real and legal connection with the contract, and they amplified their previous disclosure of their agency as well as the names of the managing owners of the line of steamers. They therein de- clared that they were the agents of the "Serra Line, J. T. Nickels & Co., of Liverpool, managing owners," and defendants' principals. We must hold these acts as a substantial and sufffcient compli- ance with the very rule invoked by plaintiffs themselves, an-d as affording ample legal and equitable grounds to exonerate the defend- ants from all personal liability in the premises. We pretermit any expression as to the right of plaintiffs to en- force their claim against any other party to the contract, and under the view^s as herein expressed we eliminate all discussion of the merits of their claims against the steamer Gracia, or her owners. The discussion will involve questions of great interest and of attractive study, but it w'ould answer no useful purpose in face of the conclusion which we have reached. It is therefore ordered, adjudged and decreed, that the judgment appealed from be annulled, avoided and reversed ; and it is now ordered and decreed that plaintiffs' demand against defendants be 392 LIABILITY TO THIRD PARTY. rejected, and that their action be dismissed at their costs in both courts.^ I (b) UNAUTHORIZED CONTRACTS, WHITE AND Others v. SKINNER. 1816. Supreme Court of New York. 13 Johns. 307. This was an action of covenant. The declarations set forth an agreement under seal, dated the 25th of April, 1815, by which the plaintiffs covenanted to make and furnish, at the Granville cotton factory, a quantity of machinery, of a certain description, one-half of which was to be delivered in October, 1815, and the other half on or before the ist of May 1816, and that the defendant, in and by the said agreement, covenanted to pay the plaintiffs for the said ma- chinery 15,120 dollars, in various instalments; one of which, or 900 dollars, was to be paid on the 30th of May, another of 500 dollars on the 29th of June, and another of 500 dollars on the 29th of July, 1815; and breaches were assigned for the non-payment of these several instalments. Platt, J. — The law is well settled that one person cannot seal for another without express authority, and it is also settled that if a person execute a bond as attorney for another, without authority, such person so assuming to act is personally bound, as though he had covenanted in his own name simply : 7 T. R. 207 ; 3 Johns. Cas. 180; 2 Cai. 254; 5 East 148. The case of Tippets v. Walker, 4 Mass. 595, is similar to the pres- ent in almost every feature. There a committee of a turnpike cor- poration covenanted in their own names, as a committee, to pay for making a road for the corporation, and the question was, whether they were personally liable. Parsons, C. J., in delivering the opinion of the court, says : "If any individuals who are agents for the cor- poration, or of any officers of it, will voluntarily stipulate with work- men for their payment, it is reasonable that they should be holden to their contract. A case of this kind is not like a contract made by an agent for the public, and in the character of an agent, although it may contain an engagement to pay in behalf of the government. For the faith and ability of the state in discharging all contracts made by its agents in behalf, cannot, in a court of law, be drawn in question." Testing the defendant's plea by these rules, I think it is ^Accord: Kaulback v. Churchill, 59 N. H. 296; Oelricks v. Ford, 64 U. S. 49. Contra: Rogers v. March, 33 Me. 106; Vawter v. Baker, ^23 Ind. 63. In the latter case it was said by Davidson, J., that a principal domiciled in another state of the United States would not be regarded as a foreign principal under the rule laid down. Compare with Oelricks v. Ford, supra. 393 ■-1, and the demurrer is w sented limed to act as \V manu- .:^ j-pany. He is no\ s^. ca- : and to exonerate himself. 1 n^e .: had authority to seal for ' ..,,...;.-. covenant is not to be re • a nullity, this specialty securi; t bind t-' the defendant reyn- • pgrent ' ligator)^ on t' t; not on the r . by which the defen^ . and Hitciv . or for the company, . . :,^-. ...- " ''~ • ^- ' hich the defendant alone ible, an ■jn the plaintiffs to prove eitiv. r luc negative ur :. t is therefore bad, because it contains no such ni . the plaintiffs might have taken issue. If the ■uially bound, he ought by his plea to have show .'venant the plaintiff's had a right of action against some other pn. That the plaintiffs were stockholders or partners in this manufac- -i: 2: company affords no ground to defeat their claim under this ■ant. The plaintiff's are entitled to judgment on the demurrer. Judgment for the plaintiffs. DUSENBURY v. ELLIS. ;8o2. Supreme Court of New York. 3 Johns. ( error on certiorari from "s court. ¥.'■' , before a justice, on a pr :, given by Dusenbury to j_ jd, in blank. The note was stgned by ' manner: "For Peter '^' :;,-;.. note was, otherwise, > "I promise," etc. It v. able, having signed the ''iced his letter of '. •• i; more than the p' ity to give notes, or bind the ' he •e judgment for the plaintiff ; RiAM. — There can be no d- ■ ry without having any •ley could not bind l An aui' ■K an au' 392 m PARTY courts. lx)th lORIZEP i8: This factf T ent ■ making a re they were pc of the court, poration, or ' men for theii . to their contract, an agent for the it irr.r. contain a- For the faith anu . made by its agents i; question." Testing ^ \-lrrrrd- Kni-ll.ack v C "iitra: T<'ig>T.; \ .M Inttcr case it * ■>t.ilc of the r- Johns. 307. "nant. The declarations set forth an 25th of April, 1815, by which the - 1 furnish, at the Granville cotton of a certain description, one-half ..jctober, 181 5, and the other half on '6, and that the defendant, in and by 1 to pay "' "''^: for the said ma- ms inst.' .if which, or 900 ih of Alay, anouier of 500 dollars of 500 dollars on the 29th of July, or the non-payment of thes" .settled that one person cannot seal for -•"■y, and it is also settled that if a y for another, without authority, IS personally bound, as though he -imply : 7 T, R. 207 ; 3 Johns. Cas. 4 Mass. 595, is similar to the pres- .re a committee of a turnpike cor- uames, as a comm.ittee, to pay foi ni, and the question was, whether ■ms, C. J., in delivering the opinion luals who are agents for the cor- ill voluntarily stipulate with work >nable that they should be holden ind is not like a contract made by :e character of an agent, altliougb pay in behalf of the government. 'V?- in discharging all contracts I a court of law, be drawn ij' ca by these rules, I think it is 296 ; Oelricks v. Ford, 64 U. ^ iwter V. Baker, 553 Ind. 63. 1. ;!rincipal domkiled in ano'ii! ■ as a foreign principal undc ■■='. "-'Kpra. UNAUTHORIZED CONTRACTS. 393 bad, and the demurrer is well founded. The defendant represented himself and assumed to act as the agent of the directors of the manu- facturing company. He is now sued in his private individual ca- pacity; and to exonerate himself, he was bound to aver and prove that he had authority to seal for his co-directors. The covenant is not to be regarded as a nullity. The plaintiff re- lied on this specialty security. If it does not bind the directors, for whom the defendant represented himself as agent, then it is per- sonally obligatory on the defendant alone, and it is incumbent on the defendant, not on the plaintiffs, to aver and prove the authorization, if any, by which the defendant contracted for Raymond and Hitch- cock, or for the company. Whether he had such authority is a fact for which the defendant alone is responsible, and he has no right to call on the plaintiffs to prove either the negative or affirmative. The plea is therefore bad, because it contains no such averment upon which the plaintiffs might have taken issue. If the defendant is not personally bound, he ought by his plea to have shown that upon this covenant the plaintiffs had a right of action against some other per- son. That the plaintiffs were stockholders or partners in this manufac- turing company affords no ground to defeat their claim under this covenant. The plaintiffs are entitled to judgment on the demurrer. Judgment for the plaintiffs. DUSENBURY v. ELLIS. 1802. Supreme Court of New York. 3 Johns. Cas. 70. In error on certiorari from a justice's court. Ellis sued Dusen- bury, before a justice, on a promissor}^ note, for 19 dollars and yy cents, given by Dusenbury to Levi Fish or order, and by him en- dorsed, in blank. The note was signed by the defendant below, in this manner: "For Peter Sharpe, Gabriel Dusenbury, attorney." The note was, otherwise, in the usual form, and began with the words "I promise," etc. It was contended that the defendant was not liable, having signed the note merely as attorney for Sharpe, and he produced his letter of attorney, which, however, appeared to be nothing more than the power to collect debts, and contained no authority to give notes, or bind the principal, in that way. The justice gave judgment for the plaintiff below. Per Curiam. — There can be no question but that Dusenbury signed the note, without having any authority for that purpose. The letter of attorney could not bind the principal beyond the plain import of it. An authority to collect debts cannot, by any possible construction, be an authority to give notes. 394 LIABILITY TO THIRD PARTY. The only question then is, whether Dusenbury was not personally responsible, as for his own note. On this point we are of opinion that, if a person, under pretense of authority from another, executes a note in his name, he is bound ; and the name of the person for whom he assumed to act will be rejected as surplusage. The party who accepts of a note, under such mistake or imposition, ought to have the same remedy against the attorney who imposes on him as he would have had against the pretended principal, if he had been really bound. Judgment of affirmance.^ TIMKEN V. TALLMADGE. 1891. Supreme Court of New Jersey. 54 N. J. L. 117. Reed, J- — The only question of law which is discoverable in the record of the proceedings in the district court is this : Does an action lie against the defendant personally, assuming that the conditions enjoined in the paper were performed? That the paper was ob- tained without fraud, and that the conditions were executed, we must assume, in the face of the findings of the trial court. But the prosecutor insists that the defendant below entered into the engagement as a public officer, and that no personal responsibil- ity for the payment of the amount named rests upon him. If the engagement into which the defendant entered had been within the scope of his official authority, I think that this view would be sound. There is a well-defined distinction between the contracts entered by private agents and those contracts made by public agents in re- spect to their personal responsibility. Where a private agent does not attempt to bind his principal, and in terms imposes the obligation upon himself, the rule is he incurs by such act a personal liability, although he describes himself as agent. Dayton v. Warne, 43 N. J. Law 659. But this is not the rule where the obligation is the same, but the agent is acting within the scope of his authority as a public agent. Knight v. Clark, 48 N. J. Law 22, 2 Atl. 780 ; Woodbridge v. Hall, 47 N. J. Law 388, i Atl. 492. A public agent, whenever the contract is within the limits of the officer's power and duty, is not personally bound, unless a contrary '"The authority of these cases (White v. Skinner and Dusenbury v. Ellis, inter alia) has been somewhat shaken by the remarks of the judges who de- livered opinions in the case of Walker v. The Bank of the State of New York (5 Seld. 582) ; and in England, as well as in several of the United States, the principle upon which they rest, if they are supposed to present the only ground of liability of the agent, has been substantially repudiated." Selden, J., in White V. Madison, 26 N. Y. 117, 123. 395 intention is plainly indicated by th the 'on. The presumption is oi'f:;..i 3nd that the engagt-rme;.: 'Ally. \'-' . e V. Hall, supra. The p;- . cd by the mayor d.c. ;nis presumption. The service for which the mone;. ice. The fugitive was a municipal The promise was made by the . <: „, .i mayor. The money was to be pai n's office. Therefore, it it had appe'are ' ,fficial power and duty, the - ,.nv of its de]:>artments by such a . no one wuisid doubt : : an instant that the action would Ik ^ - ^^^ ^^^Y alone. It, however, conclusively appeared that no such autb • 'red. In fact the mayor was without the least .^-..n. r to act for any public body in the matter. -\ow, a rule applicable to private agents is that, if an ageni lc. '^ra'-ts, although in his character of agent, with no responsible prin- to whom resort may be' hsd. the law presumes tliat he con- - iDon his personal responsibility, and intends to bind himself, 'Ids him ; for in no other way could the contract have any T\r.-,ih - ''^'^'^'ierly, 36 N. J. Law 250-255: t^^^*-> Paley evner rnis aocii int applies to public agents has been aeaied by ; courts and doubted by others, except when there existed some '\ arranty of authority or ' :t on the part of -. The cases are collect- ni's usef'^l bnr.k officers, §§ 809-815. . a:.eless to examine these auv , / ..he rule appi- agents is extended to public agents in its full ' '. in the case of Bay v. Co-' J- Law : ■ ; that case an overseer of had d; d a pauper. The charges v ' agaiusi: tlu •f action was brought against : chargeable, in which action , .. . ■.>> ground that the overseer was not :mV Awn- 'jother action was then brou linst the ' )nally, and a verdict . it W3? "fo'ed that th bl'c im had r '.•vS this r for the pnv>ioian's bill. The court , n agent, r public or private, exceeds his author.., ontract, - personally li I'-'c for its performance, fc-r i esteem 394 I.IAP.II. ly question then le, as for hi- person, undt a note in his name, i whom he assumed t( . Avho accepts of a have the same re- he would have h really bound. Tudsrment < • iS not personally •" opinion xecutes the uai son for >] a<> sui, -- le party ■ ...■ or imp' •tg-ht to !.u._.riir\- '■ ■' ' •---,-•.- uii him as :tended .it' lie had been ALLMADGE. 54N. J. L. 117. by p spect to I Where . , in terms imp by such act a ; agent. Dayton rule where th-' tV-.e '>cor>e of < A puDlic agent, ^fl^'-er'b power ano { :, Scid. -.62) , and in E' princioi'j upon which tht of liability of the White V. Madison, .. : -ji law whi^^i ;< '^1'scoverable in the .i district cor • Does an action >onaIly, assunu/n^ ii.it the conditions ■erformed? That the paper was ob- it the conditions were executed, we . findings of the trial court. ii.at the defendant below entered into > .\ and that no personal responsibil- ' named rests upon him. If the niidant entered had been within the ;' think that this view would be sound. h>n between the contracts entered Acts made by public agents in re- ■ 'f-y- • attempt to bind his principal, and .ijon himself, the rule is he incurs Jthough he describes himself as |. Law 659. But this is not the fue, but the agent is acting within ic aq-ent. Knight v. Clark, 48 N. N. J. Law 388, I Atl. ntract is within the limits of the rsonally bound, unless a contrary re V. Skinner and Dusenbury v.' Ellis. V the remarks of the judges who de- The Bank of the State of New York is in several of the United States, the - supposed to present the only ground rially. repudiated." Selden, J. UNAUTHORIZED CONTRACTS. 395 intention is plainly indicated by the terms and circumstances of the transaction. The presumption is that he is acting in his official capacity, and that the eng-agement is meant to be with the public only. Woodbridge v. Hall, supra. The paper signed by the mayor does not rebut, but fortifies, this presumption. The service for which the money was to be paid was a public serv- ice. The fugitive was a municipal officer. The promise was made by the defendant over his official title as mayor. The money was to be paid at the mayor's office. Therefore, if it had appeared that the mayor had, as a part of his official power and duty, the authority to bind the municipality or anv of its departments by such a promise, no one would doubt for an instant that the action would lie against the city alone. It, however, conclusively appeared that no such authority or duty existed. In fact the mayor was without the least semblance of power to act for any public body in the matter. Now, a rule applicable to private agents is that, if an agent con- tracts, although in his character of agent, with no responsible prin- cipal to whom resort may be had, the law presumes that he con- tracts upon his personal responsibility, and intends to bind himself, and so holds him ; for in no other way could the contract have any validity. Booth v. Wonderly, 36 N. J. Law 250-255 ; Dun. Paley Ag. 374- Whether this doctrine applies to public agents has been denied by some courts and doubted by others, except when there existed some express warranty of authority or fraudulent conduct on the part of the agent. The cases are collected in Mr. Mechem's useful book on public officers, §§ 809-815. It is useless to examine these cases, for the rule applicable to pri- vate agents is extended to public agents in its full vigor by this court in the case of Bay v. Cook, 22 N. J. Law 343. In that case an overseer of the poor had directed a physician to attend a pauper. The charges were made against the overseer as such. An action was brought against the township to which the pauper was chargeable, in which action the physician was non-suited on the ground that the overseer was not authorized to bind the town- ship. Another action was then brought by the physician against the overseer personally, and a verdict was returned against him. Upon error it was urged that the overseer was acting as a public agent, and that the physician had recognized him as such. This was not denied, but nevertheless this court held the overseer personally liable for the physician's bill. The court remarked : "If an agent, either public or private, exceeds his authority in making a contract, he is personally liable for its performance, for the law will esteem 396 LIABILITY TO THIRD PARTY. him as acting in his individual capacity, rather than suffer the con- tract to fall." Upon the rule laid down in that case the judgment brought up is affirmed.^ NOYES ET AL. V. LORING. 1867. Supreme Judicial Court of Maine. 55 Me. 408. Indebitatus assumpsit on account annexed, as follows: "1865, Oct. 17. To advertising taxes, 2^ sq., 18 w. $14.37." The writ contained also a count for money had and received, and quantum meruit for services, etc. At the trial at nisi prius, it appeared that one Perkins was duly elected treasurer and collector of Saco for the year 1865 ; that, at the annual meeting, the town voted an abatement to those who should voluntarily pay their taxes on or before certain specified days, and that notifications of this vote and of the time when the tax bills were committed to him, were duly posted up in post bills, by the treasurer, the expense of printing and posting which was paid by orders drawn upon the selectmen. It also appeared that, in October, 1865, after the expiration of the time for the allowance of such abatements, Perkins appointed the defendant assistant collector ; that the defendant was duly qualified, and he gave bond for the faithful discharge of his duties ; whereupon the tax bills of the unpaid taxes, amounting to between $17,000 and $18,000, were committed to him. The defendant then prepared a notice of his appointment, with a request that all who had not paid their taxes would forthwith make payment thereof at his office; and requested the plaintiffs to print a certain number of copies thereof in the form of post bills, and to insert the same as an ad- vertisement in the newspaper published by them in Saco till other- wise ordered, and to charge it to the town. And the plaintiffs did as requested. In March or April following the plaintiffs presented a bill for printing done for the town, including the charges for the printing ordered by the defendant, to the selectmen of Saco ; but they re- fused to allow the items ordered by the defendant, denying his au- thority to order the work done at the town's expense. Subsequently, however, they drew an order for the post bills, but refused to allow the charge for publishing the advertisement, although it was the usual price. The defendant also refused to pay the same. It also appeared that, when the printing was ordered by the de- ^ Accord: Andrews v. Tedford, 27 la- 3i4; Terwilliger v. Murphy, 104 Ind. 32. s charged to the town. ed the .1} that the action was up: 'on v-ontract nm^t be proved, ;^- cs ; that t\\ o kinds of prov ,i.e is a special promise iu •e special promise is shown ■ ;fically fix the terms and cr^-'''' ■■■ omise is a promise impL' '"•s proved in a case ^^ ■ I of such acts and cir. : liiOac promises necessary u That, where there is a special es, the law does not imply promises mconsistenc with i .r-cK'] promise excludes the idea of an implied one. i:;. '.': seen fit to mal<;e their own terms and engagements, ; them upon those terms. it, in this case, the contract being an oral contract, if any wer<: it is a question for the jury to find what that contract was. if there was a special contract to do the work and look to the >wii for pay, the parties, being legally competent to make a con-. ; must abide by the terms of it. t, if there was a special contract in this case, the fact that the es rendered may have operated to the benefit of the defendant ot relieve the parties from the legal effect of their special con- They were competent to make it as they did, and mu • the defendant repres' :' as an a I'ized to contract for iid so C' authorized, he might be liable* m another f^ • aintiffs, but not in this ac^^'^'^ ■'■'■■^ """ damage o the plaintiffs. ; verdict was for the del aa the f ' •ns. rs, J. — The remedy self as the agent of . to make a contract binding i ■::■. - .ise for deceit, and not an ac ni- ract. Long v. Coburn, ,ii Mass .lss. .:6i ; Jefts v. York, 4 Cush. 371 ; Aio ) . .Its .. York, ID Cush. 392; Smout v. Iberv, 10 .en-- • 1, 13 Ad. &E1. (N.'S.) is not a failure to keep ari cntation. Why then should ai- ;^ an action of assumpsit? : ■■^^ lakes to u:;ike a contract for another, i ^'" ' '■■ ■ contract ^' ^'^--^ '■-'•' -e ij'^y\,ii'i:>l . > acting in V act to fall." Upon thr -' affirmed.^ •itTcr the c-i ■ught up iNDElil Oct. [ iV. $18,000, v notice of 1 their taxe- and reque thereof in vertisernent m wise ordered, , as requested. In March or ,^],' 1 prnitijig done for the ordered by the clef- fused to allow the tiior-i.v to order & however, they dre the charge for p; usual price. The r It also appeared iq accoun!: ■.xes, 2}: 5 Me. 408. as follows: '"iS'.-,, $14.37." The writ ived, and quanti'"- one Perkins was duly he year 1865; that, at e lown voted an auarcnient to those who their taxes on or before certain specified of this vote and of the time when the . io him, were duly posted up in post bills, xpense of printing and posting which was ;' the selectmen. Ictober, 1865, after the expiration of the such ab: Perkins appointed the r ; that li iant was duly qualified, ithful discharge of his duties; whereupon ixes, amounting to between $17,000 and • him. The defendant then prepared a ■ ' a request that all who had not pr- ' lake payment thereof at his ofFi - :■ print a certain number of copici .is, and to insert, the same as an ad- ■tr. published by them in Saco till otl. ' i; r,> the (r.wn And the plaintiffs \ ,u LiiT |; .liiLiii- presented a bill U". .:luding the charges for the printing Saco ; but they ni, denying his e\pensc. Subsequeii' tils, but refused to all advertisement, although it was ' ' "fused to pay the same. irinting was ordered by the erwilliger y. Murphy, UNAUTHORIZED CONTRACTS. 397 fendant, he did not intimate in anywise that he would pay therefor. It was charged to the town. The presiding judge instructed the jury that the action was upon a contract. That to support the action a contract must be proved. That a contract consists of mutual prom- ises ; that two kinds of promises are recognized in proof of contracts, one is a special promise and the other an implied promise. That the special promise is shown where the parties definitely and spe- cifically fix the terms and conditions of their contract. The implied promise is a promise implied and arising from the acts and circum- stances proved in a case where no special promise is proved. They consist of such acts and circumstances as raise in law an implication of those promises necessary to complete a contract. That, where there is a special contract founded upon special prom- ises, the law does not imply promises inconsistent with those. The special promise excludes the idea of an implied one. The parties having seen fit to make their own terms and engagements, the law leaves them upon those terms. That, in this case, the contract being an oral contract, if any were made, it is a question for the jury to find what that contract was. That, if there was a special contract to do the work and look to the town for pay, the parties, being legally competent to make a con- tract, must abide by the terms of it. That, if there was a special contract in this case, the fact that the services rendered may have operated to the benefit of the defendant does not relieve the parties from the legal effect of their special con- tract. They were competent to make it as they did, and must abide by it. That, if the defendant represented himself as an agent of the town and authorized to contract for them, and did so contract, and was not so authorized, he might be liable in another form of action to the plaintiffs, but not in this action, for any damage resulting there- from to the plaintiffs. The verdict was for the defendant, and the plaintiffs alleged ex- ceptions. Walton, J. — The remedy against one who fraudulently repre- sents himself as the agent of another, and in that capacity under- takes to make a contract binding upon his principal, is an action on the case for deceit, and not an action of assumpsit upon the con- tract. Long V. Coburn, ii Mass. 97; Ballou v. Talbot, 16 Mass. 461 ; Jefts V. York, 4 Cush. 371 ; Abbey v. Chase, 6 Cush. 54 ; Jefts V. York, 10 Cush. 392 ; Smout v. Ibery, 10 Mees. & Welsh, i ; Jen- kins V. Hutchinson, 13 Ad. & El. (N. S.) 744. The gist of the ac- tion in such cases is not a failure to keep and perform a promise, but a false representation. Why then should the injured party be al- lowed to bring an action of assumpsit? If one ^^without authority undertakes to make a contract for another, the contract is necessarily void. It is not the contract of the principal, for the pretended 398 LIABILITY TO THIRD PARTY. agent had no power to bind him. It is not the contract of the agent, for in making it he did not attempt to bind himself. How then can such a contract be the basis of a suit? Very clearly it cannot. Nor should the injured party be allowed to waive the special con- tract, waive the tort, and recover upon an implied assumpsit, for such a form of declaring gives the defendant no notice of the real cause of complaint against him. Take, for instance, the declaration in this case. It contains nothing but general indebitatus assumpsit counts on an account annexed. Who, on reading such a writ, would ever suppose that the real ground of complaint against the defendant is that he undertook to make a contract for the town without au- thority ? It may not, indeed, seem unjust that the party who has undertaken to contract for another without authority should be held to perform the contract himself. In fact the law seems to have been so held in an early case in New York. (Dusenberry v. Ellis, 3 Johns. Cas. 70.) It was there held that one who without authority signed a promissory note as attorney for another was personally bound to pay it. But the inconsistency of such a doctrine, to use no stronger term, will be apparent by supposing that instead of a promise to pay money, the pretended agent had signed a promise that his prin- cipal should marry the plaintiff within a given time, or do some other act which it was perfectly competent for the principal to per- form, but which the agent could not. What would be thought of a declaration charging the pretended agent as a principal in such a case? It is undoubtedly true that if a person falsely represents that he possesses an authority which he does not possess, and another is in- jured by such misrepresentation, he is liable, but the remedy should be sought in a proper form of action. The plaintiff should not be allowed to allege neglect to keep and perform a promise, and then recover for a false and fraudulent allegation of authority. But the plaintiffs claim that, inasmuch as the labor which they performed was beneficial to the defendant, he ought to pay for it; and that they may waive the tort, if any, which the defendant com- mitted, and recover the value of their services in an action of as- sumpsit. No case has been cited in which such a course has been allowed ; and, in Jones v. Hoar, 5 Pick. 285, the court says that the doctrine, that the injured party may waive the tort and bring as- sumpsit, is allowed only to this extent, that one whose goods have been taken from him or detained unlawfully, whereby he has a right to an action of trespass or trover, may, if the wrongdoer sell the goods and receive the money, waive the tort, affirm the sale, and have an action for money had and received for the proceeds. So, if one acting as the agent of another without authority re- ceives money, and has not paid it over to the principal, it may be re- an action for money lud atiU rccc; jily in favo! i for money hac' ived, ,. :.... jeen likened u. . . ... :o a bill in equity, ri't elaxed that the evidence must correspond \vith the o a^iid be confined to the matter - ~ .-.,,; .^.:., ..v;^..,..:..^ a party is allowed to aver a dcj? ''» tire from prirc" ' .. plcaamg, o«^-. to ,\: '.xtended to nr Our conclusion therej to which exception is spe, , . represented himself as an agent ot the town, for them, and did so contract, and was not sc. ci. be liable in another form of action, but not in this. '^"''■' other rulings of the presiding ju'1 : ica i:. .:.. .>n, seems to require no further n .. tp sa^ in accordance with well-settled principles of el , so far as we are able to judge from the brief rep . dcnce contained in the bill of exceptions, were pertinent to the issue FREESE V. Ckak t . 1868. Supreme Court of Indiana. 29 Ind. 524. LLiOTT, J. — Freese sued Crary on the following ring, viz. : By this aierreement, Frank Frefse has this <' and tv" •t in the n, of one hundred and reon. All the aforesaid ; e of Indiana. Deeds to V ^igned) ^'''r' ' l-«;iaycite, June 9, liiOO. Rusaci, '4 !■<. Car. :di7. L[. agent had d him. : jntract of the agent, for la r elf. How ^hrn can such clearly it ..„:"shoii.1'.1 .rtvbe .^lV,v.- .ve the special con- tract, wai lied assumpsit, for such a ^■" notice of the real cause !ce, the declaration in ' lebitatus assumpsit c<. .- such a writ, would e > unst the defendant is town without au- th j .- . . .vho has undertaken to should be held to perform fi ■ i iact 1,' •■''-■ to have been so held York. V. Ellis, 3 Johns. Cas. 1 that ont authority signed a rney for a*) rsonally bound to tency of such a to use no stronger by supposing th d of a promise to possesses .'.. bt recover io- x\. tney Oj ruirl Ti \ : :, that ' iu^v^it, is alio- been <'.T.k'='n frop have an action for raont So, if one acting as '. eives money, and has v :< ;; had signed a promise that his prin-j iM-iiI within a given time, or do some :Ctly competent for the principal to per- ' ' not. What would be thought of a, ' led agent as a principal in such a i it if a person falsely represents that hej ( he does not possess, and another is in- ■'•>p, he is Uable, but the remedy sliouldj action. The plaintiff should not bej -^ '""^ :^erform a promise, and th< .tion of authority. '1 as the Ialx)r which the t, he ought to pay for it; ' -h the defendant com-| e^ in an action of as-j a course has curt says that th« :ort and brin^ u liie ii the ti-.rt, Ri J, and the proceeds. . -.1 without authority the principal, it may be UNAUTHORIZED CONTRACTS. 399 covered back in an action for money had and received. Jefts v. York, lo Ctish. 392. But it is only in favor of the action for money had and received, which has been Hkened in its spirit to a bill in equity, that the rule is relaxed that the evidence must correspond with the allegations, and be confined to the matter in issue, and this relaxation, by which a party is allowed to aver a promise and recover for a tort, being a departure from principle and the correct rules of pleading, ought not to be extended to new cases. Our conclusion therefore is, that the ruling of the presiding judge, to which exception is specially taken, namely, "that, if the defendant represented himself as an agent of the town, authorized to contract for them, and did so contract, and was not so authorized, he might be liable in another form of action, but not in this," was correct. The other rulings of the presiding judge, reported in the bill of exception, seems to require no further notice than to say that they are in accordance with well-settled principles of elementary law, and, so far as we are able to judge from the brief report of the evi- dence contained in the bill of exceptions, were pertinent to the issue. Exceptions overruled. Judgment on the verdict.^ FREESE V, CRARY, 1868. Supreme Court of Indiana. 29 Ind. 524. Elliott, J. — Freese sued Crary on the following instrument in writing, viz. : "By this agreement, Frank Freese has this day sold to Frank Crary his house and two lots, in Orth's addition to Lafayette, and received payment in the following property, known as the Hamlin farm, of one hundred and sixty-one acres, with all improvements thereon. All the aforesaid property is in Tippecanoe county, in the state of Indiana. Deeds to be made out as soon as possible, (Signed) "F. B. Freese, "Mrs. P, Lowe, per G. F, Crary, Agent. "Lafayette, June 9, 1866." ^Accord: Lewis v. Nicholson, L. R. 18 Q. B. 503; Duncan v. Niles, 32 III. 532; Cole V. O'Brien, 34 Neb. 68; Sheffield v. Ladue, 16 ]\Iinn. 346. "When one who has no authority to act as another's agent, assumes so to act, and makes either a deed or simple contract, in the name of the other, he is not personally liable on the covenants in the deed, or on the promise in the simple contract, unless it contains apt words to bind him personally. * * * The only remedy against him, in this commonwealth, is an action on the case for falsely assuming authority to act as agent." Metcalf, J., in Abbey v. Chase, 6 Cush. (Mass.) 54, 56. See Russell v. Koonce, 104 N. Car. 237. 400 LIABILITY TO THIRD PARTY. The complaint is in two paragraphs. The first, after stating the substance of the agreement, alleges that on or about the 22(1 day of June, 1866, the plaintiff and his wife made, signed and acknowl- edged a deed of conveyance to said defendant for the house and two lots in Orth's addition to the city of Lafayette, named in said agreement, which the plaintiff then tendered to said defendant, and demanded from him a deed of said Hamlin farm, which he failed and refused to make, to the plaintiff's damage five thousand dollars. The second paragraph alleges that on the 9th of June, 1866, the defendant falsely and fraudulently represented to the plaintiff that he was the agent of Mrs. Peter Lowe, and as such had full authority to trade, barter and sell the farm owned by her, known as the Ham- lin farm, in said county of Tippecanoe; that the plaintiff, confiding in said representations and believing the same to be true, was in- duced thereby to enter into and execute the written agreement hereinbefore set out ; that in accordance with the terms of said agree- ment the plaintiff made, signed, acknowledged and tendered to the defendant a deed for the two lots named in said agreement, and demanded of him a deed for said Hamlin farm, which the defendant did not and could not execute ; that the defendant was not in fact the agent of Mrs. Lowe, and had no authority from her to trade, barter or sell said farm, which he well knew at the time of making said contract ; that the farm was of the value of ten thousand dol- lars, and the lots of the value of only five thousand dollars, where- fore the plaintiff is damaged in the sum of five thousand dollars, for which he demands judgment. A separate demurrer was sustained to each of said paragraphs, and judgment was rendered thereon for the defendant. To these rulings the plaintiff excepted, and appeals to this court. The first paragraph of the complaint shows no cause of action against Crary, the defendant. The agreement upon which it is based is not signed by him as a party thereto, but by "Mrs. P. Lowe, per G. F. Crary, agent." Crary's authority to act in the matter as the agent of Mrs. Lowe is not questioned in that paragraph. And although it is stated in the body of the instrument that the plaintiff "Freese has this day sold to Frank Crary his two lots," etc., yet as the instrument is executed in the name of Mrs. Lowe, by Crary as her agent, it can only be regarded as a contract between the plaintiff and Mrs. Lowe, and that the lots were contracted to Crary for her, and as her agent. The deed for the lots, therefore, should have been made to "Sirs. Lowe and not to Crary, and upon her failure to convey the Hamlin farm, she, if anyone, and not Crary, would be liable to an action. The second paragraph presents a different question. It alleges that the defendant falsely and fraudulently represented that he was the duly authorized agent of Mrs. Lowe to make the contract re- ferred to, and thereby induced the plaintiff to enter into it, when in ary of the ageu ^ry on 264, p. 261, ^T ■r;,l:es .ct, as the ' 1, or parted vvi';: he is placed in any worsi a than he would 1 false representations had not iieen made, or the ci I into. True, it is alleged that the Hamlin farm is wor . usand dollars, while the lots that the plaintiff was to convey in ■hange for it, are only of the val'/i' ,-.f =f;.:;.ooo, and judgment is ;med for the difference; but thi- s wholly inadmissible, ere is no principle of law, or rule 'u .images applicable to such es, to sustain it. The paragraph onlv shows the plaintiff en- :d, at most, to nomi: " " such recovery, merely, judgment will not U :>oe, 9 Tnd. 13. The judgment is affirmed, with ccsi^ KROFGER V. ^TTr-AlPN, . by vv . C. Kro, of the loss susi fs and representa' he trial, before ki...^.i..i . Til 4, 1874, The Birmir. policy o^ ce to W k of n e and of the NHASJ) L .\-:hr , complaint ■ mce of th:-- : june, 1866, tl edged a deed c lots in Orth' agreement ^ dema.ndei.: and refuse The se'- defen' he Wc to tra lin fa agh it is se has i\ : strumer ao rer agent, •niairtif^ ?nH ■ the Ha ,.v ,..,,■•>., LO an act; The second pai that the defendanr tiie dnlv anthnri/ •Tig the day of ■ ariii aclcnowl- i'>«se and two od in said u:;endant, and vhich he failed iousand dollar?. June, 1866, the ::.'■' > die plaintiff that h had full authority ■vnown as the Ham- uL.aM ._, .1... mc plaintiff, confiding iieving the same to be true, was in- ihe written agreement *be terms of said agree- ind tendered to the ■ . rA agreement, and • d Haml :h tlie defendant ; that th=^ ..^..w.^..... was not in fact had no authority from her to trade, he well knew at the time of making . as of the value of ten thousand dol- of only five thousand dollars, where- the sum of five thousand dollars, for .1 stained to each of said paragraphs, hereon for the defendant. To these aid appeals to this court. omplaint shows no cause of action The agreement upon which it "is party thereto, but by "Mrs. P. Lowe, ority to act in the matter as ,, . ned in that paragraph. And y of the instrument that the plaintiff ■ ' (%•..,-,- ;-:. ty;Q lots," etc., yet as IS. Lowe, by Crary n tract between the contracted to Crary c lots, therefore, should Liy, and uj)o;i her failure and not Crary, would afferent question. It alleges ntly represented that he was ve to make the contract re- nter into it, ^ ' UNAUTHORIZED CONTRACTS. 4OI truth, as the defendant well knew, he was not the agent of Mrs. Lowe, and had no authority to contract in her name. The rule as to the liability of the agent, in such cases, is stated in Story on Agency, § 264, p. 261, to be, "that w^ienever a party undertakes to do any act, as the agent of another, if he does not possess any authority from the principal, or if he exceeds the authority delegated to him, he will be personally responsible therefor to the person with whom he is dealing for or on account of his principal." Assuming, then, without discussing the question, that the facts al- leged in the second paragraph are sufficient to make the defendant liable for any damages sustained by the plaintiff, by reason of the alleged false representations as to the agency, still the question is, does he show that he has been injured thereby, in any respect, for which he is legally entitled to recover damages ? It is not shown that he paid any part of the consideration, or parted with anything, or that he is placed in any worse condition than he would have been if the false representations had not been made, or the contract entered into. True, it is alleged that the Hamlin farm is worth ten thousand dollars, while the lots that the plaintiff was to convey in exchange for it, are only of the value of $5,000, and judgment is claimed for the difference ; but this claim is wholly inadmissible. There is no principle of law, or rule of damages applicable to such cases, to sustain it. The paragraph only shows the plaintiff en- titled, at most, to nominal damages ; but for such recovery, merely, the judgment will not be reversed. Tate v. Booe, 9 Ind. 13. The judgment is affirmed, with costs. KROEGER V. PITCAIRN. 1882. Supreme Court of Pennsylvania, ioi Pa. St. 311. Case, by W. C. Kroeger against Albert Pitcairn, to recover the amount of the loss sustained by the plaintiff in consequence of cer- tain acts and representations made by defendant. On the trial, before Kirkpatrick, J., the following facts appeared : On April 4, 1874, The Birmingham Fire Insurance Company is- sued a policy of insurance to William C. Kroeger, the plaintiff, "on his stock of merchandise and fixtures contained in the two-story frame store-room and cellar and in frame addition attached, situated at Enon Coal Company's works, about two miles west of Enon, etc." One of the printed conditions of the policy was in these words : "Or if the assured shall keep or have in any place or premises where this policy may apply, petroleum, naphtha, benzine, benzole, gasoline, 26 — Reinhard Cases. 402 LIABILITY TO THIRD PARTY. benzine varnish, or any product in whole or in part of either ; or gunpowder, fireworks, nitro glycerine, phosphorus, saltpetre, nitra of soda, or keep, have, or use camphene, spirit gas, or any burning fluids or chemical oils, without written permission in this policy, then and in every such case this policy shall be void." In December, 1874, the premises so insured were totally de- stroyed by an accidental fire. Due notice was given the insurance company and preliminary proofs furnished, but the company refused to pay. An action was then brought on the policy and a judgment recovered to the amount of twenty-one hundred dollars. That judg- ment this court reversed. It had appeared on the trial that a barrel of carbon oil had been kept on the premises, and this was held to be an avoidance of the policy : Birmingham Fire Ins. Co. v. Kroeger, 2 Norris 64. Albert Pitcairn, the defendant, was the insurance company's agent who procured the issue of the policy. He solicited Kroeger to allow him to effect the insurance ; went upon the premises, examined them, furnished the description of them, and had the policy under- written, bringing it with his own hand to Kroeger, from whom he collected the premium. What took place at that time was thus testi- fied to by Kroeger : "He procured the policy and brought it to me ; I took the policy and read it over, and in reading it over I happened to come across the fine print and noticed about these articles that should be mentioned in the policy — such as petroleum, and product of petroleum, and gasoline, and other things, I don't know what they call them, all strange names to me, and I told him about pe- troleum ; says I, "Albert, you know there is a little petroleum kept there for the supplies to the mines ;" I had to have that there all the time, as well as company supplies. He said, "Yes, I know that." Says I, "It says here it should be mentioned in the policy," and he says, "That is never taken notice of, only where it is kept in large quantities, say several hundred barrels ; in that case, where it is wholesale, it should be mentioned, but so long as it is not kept more than one barrel in the store at a time, it is considered as general merchandise and it is never taken notice of in any other way." Cross-examination — "The outcome was as I say; I objected to the policy on account of the way it was in the fine print ; it seemed to me it was not proper, and I spoke to Mr. Pitcairn about that and he said that the policy was proper, that the policies were all made out in that way ; that carbon oil, as long as it was not kept more than one barrel in the store, was considered as general mer- chandise and not mentioned in the policy, but where it was kept in large quantity, a hundred barrels or so, then it must be so mentioned, and exception made of it." It was conceded that Pitcairn, all through, acted as the agent of the insurance company. He had admitted that he had no authority from his principal to represent to Kroeger that the printed condi- ■J petroieurn was noi biiiaii.t wnere on was Kept ted the ■ ved : that tb; ,.re- liried to by 1 nd that the iaitf . >.h thereof; .u r!,,^ defendant h.. , 7ningham Fire it Company to vs\<> that the prer- e subsequenLi\ , 'at because r policy in suit r ■ e plaint iving a I'- recover agamsi vm i,ieieu'];uit in tl. -\- wi+ll irite"': '■ ! ! f" ■ vri ■■■■A .'■ .-.f ^^:^-^. lant then presented the following points: ;. To sustain this action, the alleged misreprese'i n!y have been false, but it must be shown that de: ' .e false, and made them with intent to defraud the piaintilf . d pro forma. That the alleged representation was the mere opinion of t as to the legal effect of the condition in the policy of in- ind the condition of the policy being open to the observation untiff, plaintiff was ' ' " ■/ the legal effect thereof, :')t, for such opinion . recover in this action. -n defendant, r ■ --crent of the Pir Lompany, delivered the | epresentation as to the kfc., ., ., ... .... . and made them in accordance with ■ -ther insurance cc '" '■ " rv stores, then pi. ed the jury l'^ ^r\r. ed as above. '^. . _ judgment for the . . verediciu. Thereupon the plamtiff i - *• the action ' '" ■ • -— '■• - "--' n obstante i' r. it i^ ■ jment si. jury w< !o return a ■ "'iir), if ii.^» -It.-:' o .^ !i;r |. rit presen- in his favor irpiiP;. a ^•c!^l^' 402 IIABILITY TO THIRD I benzine varnish, or any pr-xiuct in'wiiole or in part of either; or gunpowder, fire w.->'^-^; nl^ -!vreri,i,- ;'•,■,- ih(,i';, -'iltoetre, nitrn oi soda, or keep, ) :uiy bur: fluids or chei!- ^ policy. Hi'- 11. and in everv In De- tyJL were totally de- stroyed lyiven the insurance company company refr to pay. _, and a judgi.. recoverf; dollars. That judg- ment ^^ ' ' . : he trial that a barrel of c. md this was held to be ; , .L>U!v;ui^naill J lie Ins. Co. V. Kroeger, there f( quantities. sa\ wholesale, it she. than one bar"'! merchandise Cross-ex. the policy oj. to me it was i. and he said th.r made out in the*. i ,r,! . '1vm one !■ aiad hcl 'ji .' .jiantity, a : and exception ni; It was concede the insurance cui from liis princip 1 i rhe insurance company '.s He solicited Kroeger to .'.'. premises, examined \j.A...... ..... .lad the poHcy under- his own hand to Kroeger, from whom he V hat took place at that time was thus testi- nrocured the policy and brought it to me; ver, and in reading it over I happened and noticed about these articles that ' jlicy — such as petroleum, and product :nd other things, I don't know what ■ mes to me, and I told him about pe- ■ know there is a little petroleum kept aines ;" I had to have that there all the r.-s. He said, "Yes, I know that." be mentioned in the policy," and notice of, only where it is kept in k ■ cd barrels ; in that case, where : Tied, but so long as it is not kept i; ' ■'' 1 time, it is considered as gc: notice of in any other way." i e vins as I say; I object; •i in the fine print; it se^. ircairn about policies wer - it was not . I as general . . where it was kept in ^1 .icted as the !. he had no •jttger that the printed condi- J UNAUTHORIZED CONTRACTS. 4O3 tion as to petroleum was not binding, except where oil was kept wholesale. Plaintiff requested the court to charge that if the jury believed from the evidence that the defendant made to the plaintiff the repre- sentations testified to by the latter and that the latter took said policy upon the faith thereof; and that the defendant had no authority from the Birmingham Fire Insurance Company to make such rep- resentations ; that the premises insured were subsequently destroyed by fire, and that because of the terms of the policy in suit relating to petroleum, the plaintiff failed in a recovery against said company, because of having a barrel of carbon oil on the premises, then, he is entitled to recover against the defendant in this action the amount of the policy, with interest, from time of payment provided in said policy. Affirmed pro forma. Defendant then presented the following points: 1st. To sustain this action, the alleged misrepresentations must not only have been false, but it must be shown that defendant knew them to be false, and made them with intent to defraud the plaintiff. Refused pro forma. 2nd. That the alleged representation was the mere opinion of defendant as to the legal effect of the condition in the policy of in- surance, and the condition of the policy being open to the observation of the plaintiff, plaintiff was bound to know the legal effect thereof, and cannot, for such opinion of defendant, recover in this action. Refused pro forma. 3rd. That if, when defendant, as agent of the Birmingham In- surance Company, delivered the policy to the plaintiff, he made the alleged representation as to the keeping of carbon oil in the insured premises, and made them in accordance with the existing custom of that and other insurance companies in insuring stocks of merchan- dise in country stores, then plaintiff cannot recover. Refused pro forma. The court instructed the jury to find for the plaintiff reserving the points presented as above. Verdict accordingly. Subsequently the court entered judgment for the defendant on the points reserved non obstante veredicto. Thereupon the plaintiff took this writ, as- signing for error the action of the court in entering judgment for the defendant non obstante veredicto. Sterret, J. — The subject of complaint, in both specifications of error, is the entry of judgment for defendant non obstante vere- dicto. 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 mat- 404 LIABILITY TO THIRD PARTY. ters specified in plaintiff's point, and hence it must now be regarded as containing a truthful recital of the circumstances 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 privi- lege 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 representations were not merely expressions of opinion as to the meaning of the policy. On the contrary, the defendant, acting as its agent and assuming author- ity to speak for the insurance company, asserted without any qualifi- cation 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 men- tion 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 the defendant, 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 pre- mium ; and, to that end at least, it was successful. What was said and done by defendant, in the course of the transaction, 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 com- pany he assumed to represent, that if the insurance was effected it should be with the understanding that a barrel of carbon oil was included in and formed part of the insured stock of merchandise, without being specially mentioned 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 therefore done, a small quantity of carbon oil. It was not until after the property was destroyed that he was undeceived. He then discovered that, in consequence of de- fendant having exceeded his authority, he was without remedy against the company. Has he any remedy against the defendant, by whose unauthorized act he was placed in this false position? We think he has. If the president or any one duly authorized to repre- sent the company had acted as defendant did, there could be no doubt as to its liability. Why should not the defendant be person- ;.o--. if?, assuming iithority bear the io,. vcr a party ti he does not Oi- if he exceeci liable to the .,''.6 principal: .'giiized in Evan-^ 2x2, 222, uayug V. vMCwartj i Vv. vx b. 2. .0 W. N. C. 493; Jefts v. York, lo Cush. ■'. Y. 467. In the latter case, it is said, the reason v.-ny .. w.ible in damages to the person with whom he contracts. he exceeds his authority, is that tlie party dealing with hiir> ' -ed of any remedy upon the contract against the principal, ract, though in form that of the rtrincipal, is not his in f?.ct, ■ loss, cxzcasv there being no valid be borne by t who contracted for out authority. In Layng v . supra, Mr. Jusii'.f ays: "It is not worth while .. > . .carnf" -^ • --^^ '■' The cases cited show that if an agent and employs a person, his principal is i; the agent is bound." The plaintiflF in t • .\de a contra ; to bind hi; liLy to make the judgment,, said :y, whether the ard to make th^ He was person- ; or in ! • that ti party ■ agents have bee • lege part It is declar pany n-. it should him I. . ..v„, carbon oil. ro a mutual i.e stock of e one barrel of ..... ... have the privi- of oil i with and as a ' '' M!'. uiuiiting his policy, any other light. The '1 the faith" of the I sentations were not as to the meanuig of the policy. On 1 ' • as its agent and assuming author- ny, asserted without any qualifi- ■ i ivcpt as plaintiff was in the habit I a time — ^it was unnecessary to men- consent of the "it is kept in s. Ill that case, when t, as long as it is kept, store at a time, it is considered as ■ 'l-en. notice of in any other way." ;)y the defendant, evidently for I that existed in the mind of the -]-it the policy and pay the pre- il. What was said iisaction, amounted nat the accepted meaning of the •r, e^fct. if not in substance, h's n, on behalf of the cc L u the insurance was efFect<-.i > that a barrel of carbon oil was ^ jnsured stock of mere! in th'/" poiiry The j ■on, as ' d, and tl:: ice, authorizi :, x. ; - nail quantity ^rty was destroyed ti: %\ think iie has. if i[ sent the company i ^ .ionbt u.^ to its liability luthorized to rep: ,:, there could be ! defendant be perso UNAUTHORIZED CONTRACTS. 405 ally responsible, in like manner, for the consequences, if he, assuming to act for the company, overstepped 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 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 princi- ple is recognized in Evans on Agency ^301 ; Whart. on Agency 524; 2 Smith's Lead. Cases 380, note ; i Pars, on Cont. dy, and in numer- ous adjudicated cases, among which are: Hampton v. Speckenagel, 9 S. & R. 212, 222; Layng v. Stewart, i W. & S. 222, 226; McConn V. Lady, 10 W. N. C. 493; Jefts v. York, 10 Cush. 392; Baltzen v. Nicolay, 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 contract, 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 contract with him, should be borne by the agent who contracted for him without authority. In Layng v. 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 McCann V. Lady, supra, made a contract, believing he had authority to do so, and not intending to bind himself personally. The jury found he had no authority to make the contract as agent, and this court, in affirming the judgment, said: "It was a question of fact submit- ted to the jury, whether the plaintiff in error had authority from the School Board to make the contract as their agent. They found he had not. He was personally liable whether he made the con- tract 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., ist. Where the agent makes a false representation of his authority with intent to deceive. 2nd. Where, with knowledge of his want of authority, but without intending any fraud, he assumes to act as though he were fully authorized ; and, 3d, where he undertakes to act, bona fide believing he has authority, but in fact has none, as in the case 406 LIABILITY TO THIRD PARTY. of an agent acting under a forged power of attorney. As to cases fairly brought within either of the first two classes there cannot 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 sometimes 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 Ude 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 i*s 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 au- thority 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 an 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 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 v. Ilbery, 10 Mees. & Wels. I, 9. Without pursuing the subject further, we are of opinion that, upon the facts established by the verdict, judgment should have been entered for the plaintiff, on the question of law reserved.^ ^"If there are not apt words to charge the agent, and the credit is not given to him, then he is liable only in an action ex delicto." Downer, J., in McCurdy V. Rogers, 21 Wis. 199, 204. The fact that the agent acquires no persona! benefit from the wrong com- mitted does not affect his liability. Weber v. Weber, 47 Mich. 569. "When he (the agent) is guilty of no wrong or omission; when there is a full and honest disclosure of the nature and extent of his authority; when the party dealing with him has all the knowledge and information which the agent possesses, there is no liability resting upon him, though his act or con- tract proves to be ultra vires." Brickell, C. J., in Ware v. Morgan, 6y Ala. 461, 468. ,y| UNAUTHOF" COLLEN V. WRl 1857. Exchequer Cha:>iber. 8 E. ner s. r''^iri the de'-'--'' art of Queer hout pi' ;;e will be 1 u:c report belov^- ; vimt-n •'-• - E. ^: nee, it stated that the testat( I ;; land ed Gardner, ano r the lease to h'vr ■v tormal agreemen; ' : '.'d by the te to William r, Ksqn oy plaintiff. T... p.^. M..IL entered 01 i . f this agreement. Mr. Gardner refused alleging, accurately as it proved, that he na^ ator no authority to agree for a lease for so Ic 'lad commenced a suit in chancery -against v. i-erformance. On discovering the ground of u. r sent to Wright a formal notice that, unless they received ;ht notice to the contrary, the plaintiff would proceed with right's expense; and, in the event of his bill being dis- the ground of the absence of authority, would commence to recover the costs and other damages by reason of vant of authority. Wr r sent an answer, , April, 1855, denying W- .y td any action. 1 .' iing any admission f' •It had not had nit was proceed d h- •,:!! .-r.nwv,-, ■und that Wrigh. •" The case in '1, and submitt. plaintiff is t\ executrix a s; 2. W . plaintiff, t>e recovered'; or, covered, which > er. to the exact money na cost^ oi ail agent ac fairly brought jny cioabt as i ■■ -'■ '''■> liabilil; or by ei 'i>;\;;;:s, in cas; doubted, the x Uabie. Tr " UTidoubtei- "Another and that ' princi; acts ;; agent As to cases le.re cannot be tituted agent; ■>n the case for the liability of : sometimes been liiat they are also t, recognizing the : two classes, says, •iiit of some doubt, s an agent for the lity, and therefore case, however, the ' as he Ts in the two mal fraud or moral ' |)lain principle of ' natural if not competent an- other party into a . . rt of the agent as to the exisi >-sses to act. In Professor :::Lor) s wcrK o^ is laid down as clear that a person contracting luthority will be liable to the party with whom the cO!; . yet, w^hen the mode in which that liability is to bt jorcea is considered, the alternative is put between a special actior. n tlv' r-xse on the one hand, and an action on the contract against ssed agent as principal on the other ; but it does not appear ccurred to that very learned and scientific jurist that, either :w of England or that of America, an action could be main- :i an implied contract as to the existence of auth*"- iner, in the note to the case of Thompson v. !• & C. 78 (E. C. L. R. vol, 17), where the pr^ ">iv- as collected from the cases on agencv .-^re Va- that if a man state himselt to be an 1 !n-ipal, he is, in law, Ir"' ' ■ ■•" :- >d that he is liable ex I courts, it will be .vrote no such docti inst a party cont ■ > assumed to be ^ station, or by an ■ -act. The t' •t sufficient d down, and sup Downnr 40^ t'y c 1 such a^;: lor any darriM of authority 1 by a pc: Uat the ]' affects the iv lus aci . far as the o, f!^ infill in no wa; age whir' well exp- . ii not I of t: fs into - duly ai \vhi( : •^ in poii iliat _i •. Cocke jng in thi.^ opinions I e in whose vie after consider ■sition v; ■ I'i a paiU . dly contr ujLi!. I .ly from th; if it turns out thai on such implied c cient aiithr^r'ty tu • for h.' e of tht in f^s". it we si m who so contracts of the assertion '. bare roisstate- ition. The an authority d innocence, so -ict is concerned, nvenience and dam- ■■^uig in such a case is rofessing to contract as v. undertakes to or : ract, upon the faith that the authority exist. transaction \\ ith the professed agent, for the promise. Indeed the contract ^on dealing with the professed agent to ratify the act of the latter. This y the Court of ijueen's Bench, and to . to the amount of damages, I retain course of the argument, that all the ■■■\ were occasioned by the assertion of the contract being continued and per- estator and bcnia fide acted upon by •as never withdrawn, not even in the nswer to the plaintiff's notice to the ; r the proceedings in chancery had ere in full progress. I am therefore f the "Queen's Bench was right, and unfeignedly to find myself differ- ^ji. my learned brothers, for whose ■>undest respect and deference, and^ ; ver)'^ disposition to acquiesce, :': I he moct anxious desire to com • :;g judgment for ii aw warrants, "i *hat by the law ,e name of a prin •g^ party that he i ■: inc contract, and ti he is liable in an ac? • that there is not sum- id that, even assuming I rule might be desirable,. law instead of exprmnd- 'S UNAUTHORIZED CONTRACTS. 409 ing that which already exists. I beheve I am fully justified in saying that this doctrine is altogether a novel one. I have looked carefully into the various treatises and text books on the law of con- tracts ; and, so far as I have been able to discover, although the doctrine of implied contracts has been fully discussed, and the instance of implied contracts as existing in the law of this country carefully enumerated, no mention is to be found of the implied con- tract contended for in this case. Nor is any trace of such an action to be found, so far as I am aware, in the printed books of precedents on the forms of actions and of pleading. And, what is still more remarkable, in the learned and elaborate works which treat Of the law relating to agency, and in which the liabilities of agents, or persons professing to act as such toward third parties, are fully considered, not even a hint is to be found of any implied contract on the part of the agent as to the existence of the authority on which he professes to act. In Professor Story's work on Agency, while it is laid down as clear that a person contracting as agent without authority will be liable to the party with whom the contract is made, yet, when the mode in which that liability is to be en- forced is considered, the alternative is put between a special action on the case on the one hand, and an action on the contract against the professed agent as principal on the other ; but it does not appear to have occurred to that very learned and scientific jurist that, either by the law of England or that of America, an action could be main- tained on an implied contract as to the existence of authority. In like manner, in the note to the case of Thompson v. Davenport, 9 B. & C. 78 (E. C. L. R. vol. 17), where the principles as to liability as collected from the cases on agency are laid down, it is asserted that if a man state himself to be an agent, but have really no principal, he is, in law, himself the principal ; but it is not sug- gested that he is liable c.v contractu in any other form than as principal on the original contract. Nor is this silence to be wondered at ; for, on looking to the reported decisions of our own and of the American courts, it will be found that at the time these learned authors wrote no such doctrine had ever been broached, but the remedy against a party contracting on behalf of another without authority was assumed to be either by an action on the case for the false representation, or by an action against him as principal on the original contract. The doctrine that a person professing to act as agent without sufficient authority might be made responsible as principal was only subverted at a comparatively recent period. In Paley's work On the Law of Principal and Agent, Ch. 6, § i, p. 386 (3d ed.), it is laid down, and supported by authorities, that a party contracting as agent is responsible as principal, where there is no responsible principal to resort to, or where he exceeds his authority so that the principal is not bound. Story we have seen holds the like language. In the case of Jones v. Downman, 4 Q. B. 235 (E. C. L. 4IO LIABILITY TO THIRD PARTY. R. vol. 45), which was an action ex contractu, the doctrine of Story, that, "wherever a party undertakes to do any act, as the agent of another, if he does not possess any authority from the principal, or if he exceeds the authority delegated to him, he will be personally responsible therefor to the person with whom he is dealing for or on account of his principal," was adopted by the Court of Queen's Bench, as "supported by numerous authorities," and "founded on plain justice." And the defendant, who was there sued as principal, was held to be liable on the contract. It is true that that case was afterwards reversed on error in the court of exchequer chamber, (b) but solely on the ground that the absence of authority was not shown ; and the court, in other respects, appears to have recog- nized the propriety of the decision of the Court of Queen's Bench. And in a note to the case of Thomas v. Hewes, 2 C. & M. 519, 530, n.,* the same law is stated to have been laid down on different oc- casions by the late Mr. Baron Bayley, and by Lord Wensleydale when a baron of the exchequer; the case of Smout v. Ilbery, 10 M. & W. i,^ where an action was brought against a married woman for goods purchased by her on her husband's account after her authority to pledge his credit had been terminated by his death, of which fact she had been ignorant, though the court held that the action could not be maintained under the circumstances, it was never doubted that action was rightly brought in contract. The case of Polhill V. Walter, 3 B. & Ad. 114 (E. C. L. R. vol. 23), in which it was held that a person accepting a bill drawn upon another in the name of the drawee without authority could not be sued upon the bill as acceptor, seems first to have given rise to a contrar}^ im- pression, although that case turned mainly on the peculiar character of the bill of exchange as incapable of being accepted by anyone but the drawee except for honor of the latter. But the more re- cent case of Jenkins v. Hutchinson, 13 Q. B. 744, (E. C. L. R. vol. 66), laid down the position broadly that an action ex contractu could not be maintained against the professed agent as principal ; and the same doctrine was fully confirmed and acted upon in the suc- ceeding case of Lewis v. Nicholson, 18 Q. B. 503 (E. C. L. R. vol. 83). In the meantime, the liability of a professed agent for the unwarranted assertion of authority in an action on the case under- went further consideration ; and the doctrine of some writers, that any misrepresentation whereby another was induced to do, or omit to do, an act from which injury resulted, would render the party mak- ing it liable, underwent material modification, the modern decisions having established that such misrepresentation will not afford a ground of action where made in good faith and without knowledge that it was untrue. The effect of these doctrines being to leave a person who made a contract with another as agent without a remedy where the professed agent had acted under a mistaken im- I >r. "^ >■■ . Court who decide on, '11- • c'l- to say that upon ont rime be liable upon To my mind it by > believed to be the v ' ion not to be ^o. we of an '^ lis a vci ed contract that, trequently as the question ot the )i authority in supposed agents has been before our ...l.. .o, .nch as the question of liabilities of agents has been dis- ) trace of this doctrine is to be found in our law books in the last few years. T do not think w^e are justified in •'ch a remedy by '" fiat of a judicir -0 discuss the e or polic\' of t- erwise I think it might n :e are t his part of the case, I > ■rf '^ : :.TOund why erroneous reprc ^.- 4. ,.,,1 -hould create - i in the cas \4- party r : with't'- from thv : this c; :h we are c n to our la ^reby an ackno-'A . • . : ■ \- . 1 ■J be iai to be !d that ' ■ ■ is OU". ',.iM S Ij i ■ ■ all humilitv and i'. WlllCll ti ever a or .ui'-iiitr, if be -i. or if he exceeds ;]k responsible the; on account of i Bench, as "suv plain ju Stic •" ' was held t afterw.' (b) bv. shown nized ! And i;. '.V'liL c.r-,i- ( 66), laid do- not be im- the same ti ceeding case Oi t53). In the n unwarranted a?- ■' ' -further c: represei'i (10, a a act from w)^ ing it liable, under' havincr ebtai)!ished ground oi aLUOii \\ that it was untrue, a person who mao reined v' where the ', r\c; the -acre' ior or ._ -v.. V _. ..Jueen's and "founded on sued as principal, •vhat that case was the cui;u ol exchequer chamber, At the absence of authority was not ■ respects, appears to have recog- .171 01 tiic- Ci^^'vt of Queen's Bench. . C.'& iM. 519, 530, vc ucti. ,ti on different oc- Bayley, ' xird Wensleydale I:' ^ a.out V. Ilbery, 10 .. , '. a-oi ;.(• a married woman L her husband's account after her tjad been tenninated by his- death, iiorant, though the court held tliat '^' under the circumstances, it was brought in contract. The case C. L. R. vol. 23), in which ill drawn upon another in • ty could not be sued upon ii . .iiven rise to a contrary im- ed mainly on the peculiar character >;:iVi1p Df IK in o' accepted by anyone But the more re- ' j vj. B. 744, (E. C. L. R. vol. uat an action ex contractu could' 1 agent as principal; and tid acted upon in the suc- -oii, 16 O. B. 503 (E. C. L. R. vt ilitv of a r'r;-,ies5ed agent for t! . >n the case unde. • '^■'e writers, th: ' do, or omit ! ' ir.icT die party ma! ' the modern decisif>i •on will not at+ aid without kno\*. .' e doctrines being to lea nother as agent without icted under a mistaken ini UNAUTHORIZED CONTRACTS. 4II pression as to his authority, it occurred to the judges of the Court of Queen's Bench who decided, in the case of Lewis v. Nicholson, that an action would not lie against the agent as the principal, to suggest that, possibly, the agent might, under such circumstances, be held liable on an implied contract that he had authority to con- tract in the name of the principal. And the opinion thus inci- dentally thrown out in that case has been acted upon in this. It was of course impossible, so long as the doctrine prevailed that the pro- fessed agent could be sued as principal, that he could be held to be liable on this implied contract. It would have been obviously in- consistent to say that upon one and the same contract a man could at the same time be liable upon an express and also upon an implied promise. To my mind it by no means follows that, because that which was believed to be the remedy in law turns out upon further consideration not to be so, we are therefore justified in resorting to the fiction of an implied contract hitherto unknown to our law. To me it seems a very strong argument against the existence of any such implied contract that, frequently as the question of the absence or excess of authority in supposed agents has been before our courts, and as much as the question of liabilities of agents has been dis- cussed, no trace of this doctrine is to be found in our law books until within the last few years. I do not think we are justified in introducing such a remedy by the mere fiat of a judicial decree. I do not stop to discuss the expediency or policy of the proposed rule. Otherwise I think it might be shown that there are two sides even to this part of the case. I doubt whether there is any suffi- cient ground why erroneous representation, in the absence of false- hood or fraud, should create a greater responsibility in the case of a contract than in the case of any other transaction, especially as the other contracting party might always protect himself by insist- ing on communicating with the alleged principal or by requiring a warranty of authority from the agent. But I by no means desire to rest my opinion upon this ground. My view is, that this implied contract, which we are called upon to establish in this case, is a thing unknown to our law ; that we are dealing not with a mere mode whereby an acknowledged liability may be enforced, but, a supposed liability having turned out to be unfounded in law, we are now creating a new species of liability on a new contract, now for the first time to be implied, as to a warranty of authority which, if the party now to be charged had been required expressly to give, he would probably have refused. If it is desirable to estab- lish such a rule, it seems to me it should be done by legislative enactment; and that to establish it by judicial decision is to make the law, which it is our only province to expound. Against this course, though in all humility and with the utmost deference to the 412 LIABILITY TO THIRD PARTY. better opinion of my colleagues, I feel it my duty to record my pro- test. Judgment affirmed.^ PATTERSON v. LIPPINCOTT. 1885. Supreme Court of New Jersey. 47 N. J. L. 457. ScuDDER^ J. — An action of debt was brought in the court for the trial of small causes by Jacob M. Patterson against Barclay Lippin- cott, 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. Lippincott, that said George and Barclay, on request, have refused to pay said balance, and that, since payment became due, 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 negotia- tions with George, is not sustained by the proof, for the testimony 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 defend- ^ Accord: Trust Co. v. Floyd, 47 Ohio St. 525; Boston R. R. Co. v. Richard- son, 135 Mass. 473 ; Cochran v. Baker, 34 Ore. 555. In Oliver v. Bank of England, L. R. (1902) i Ch. D. 610, the doctrine of Collen V. Wright was applied to a case where an agent acted under a forged power of attorney, believing it to be genuine. Vaughan Williams, L. J., on page 626, quoted with approval the following statement from the opinion of Bramwell, L. J., in Dickson v. Renter's Telegram Co., L. R. 3 C. P. D. i, 5 : "Collen V. Wright establishes a separate and independent rule, which, with- out using language rigorously accurate, maybe thus stated: if a person requests and, by asserting that he is clothed with the necessary authority, induces an- other to enter into a negotiation with himself and a transaction with the person whose authority he represents that he has, in that case there is a contract by him that he has the authority of the person with whom he requests the other to enter into the transaction." See note to Oliver v. Bank of England, in 16 Harv. Law Rev. 311. "The reason why the 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." Andrews, J., in Baltzen v. Nicolay, 53 N. Y. 467, 469. Regarding the measure of damages when a recovery is had against the agent, see Dung v. Parker, 52 N. Y. 494. -.th L liic p oout hv^ :ic county wi- > ..,.. ci Amission of i me of such sale and is competeiv ct of a jury • court for tlx; : ; in the court o i it against the plaintiff. on for the r ,r..ar on the record, but tlie ^■,.., . .-. aave argued li.. 3 on the case presented by the pleadings and proofs, V' here, as it '^ 'ow, that the plaintiff co; the infancy o P. Lippincott, and brin t Barclay T ..as principal in the contrac: _:: of its expr . the face of the written agreement George P. Lippiiicou is rincipal and Barcky Lippincott the agent. The suit on the ict should therefore be. against the principal named, and not . . u -,^nt, unless there be some legal cause shown to change itv. The cause assigned bv the olaintiff is the infancy in his name by his rVif; of action is P- v •. The . ok, 2 Z vvhlth foiiuvv.^ aiid 536, to -^ -Ct that if ;^ ;cr-:'ii for an individual 0, •■ not legally bindii' and the agent, v respui!-' ■> be h?s • e act concerning the poor. id that an txecat;: . such c;. r for breach oi •< case. Jenkin. . ._ Q. B. 503 ; Baltzer ■^^ ^ "-, and r ^. ^§ 5- a\'jn,jc:-., ■■ , ' ■ ' ite record my pro- i88s. ^■. ' L. 457. brought in the court for the ,. cison against Barclay Lippin- imed under a contract in writing " nanufacture arid sell the a Atlantic county, New Lippincott, per Barclay Tlie state of demand t:e plaintiff did, in due form .ige P. Lippincott, that said • ve refused to pay said balance, I'.ic, the plaintiff has found out and ;er the ajBfe of twenty-one years. He \ct or negotiations with 'T-itv to net for his minor ni has a»: ; laintiff agai .*; tf never had any contract or negotia- • ''^ ■'" — v^f, for the testimony e, which is the only ai aie case, is, that the defend- ^^oston R. R. Co. V. Richf r' trom the opinion R. 3 C. P. D. I, ■ lie, which, wi 1 p?^?on reQii- had ag.'i. UNAUTHORIZED CONTRACTS. 4I3 ant 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 the 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 defend- ant in the court for the trial of small causes ; and on the trial of the appeal in the court of common pleas there was a judgment of nonsuit against the plaintiff. The reason for the nonsuit 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 conten- tion being here, as it was below, that the plaintiff could not aver and show the infancy of George P. Lippincott, and bring this action against Barclay Lippincott, as principal in the contract, in contra- diction 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 V. Cook, 2 Zab. 343, which follows and quotes Mott v. Hicks, i Cow. 536, 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 binding upon his principal, he is personally re- sponsible ; and the agent, when sued on such contract, can exonerate himself from personal responsibility only by showing his authority to bind those for whom he has undertaken to act. Bay v. 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 v. Hutchinson, 13 Q. B. 744; Lewis v. Nicholson, 18 Q. B. 503; Baltzer v. Nicolay, 53 N. Y. 467; White V. Madison, 26 N. Y. 117, and many other cases collected in the notes in Whart. on Agency, §§ 524, 532, and notes to Thomson v. Davenport, 9 B. & C. 78, in 2 Sm. Lead. Cas, *358. (Am. ed.) 414 LIABILITY TO THIRD PARTY. Andrews, J., in Baltzer v. Nicolay, supra, says : "The ground and form of the agent's Habihty in such a case has been the subject of discussion and there are conflicting decisions upon the point ; but the later and better-considered opinion seems to be, that his Habihty, when the contract is made in the name of his principal, rest 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 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 abso- lutely void, and therefore there is no breach of the implied war- ranty 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 Whiting v. Dutch, 14 Mass. 457, that a promis- sory note signed by Dutch for his partner. Green, who was a minor, was void as to Green, because he was not capable of communicat- ing 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 on 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 is a personal privilege of which no one can take advantage but himself. Voorhees v. Wait, 3 Gr. 343 ; Tyler on Inf., ch. IV, § 19; Bingham on 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 privi- lege of affirming or disaffirming the contract belongs to the infant alone, and the plaintiff cannot exercise it for him. The mere re- fusal to pay, charged in the demand and proved, is not a denial of the defendant's authority to bind the infant, for it may 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.^ ' See Lewis v. Tilton, 64 la. 220. , J.— Tl that the mother, made a com her by reason of the > The ground and : . s been the subj., nat he is Hablc • .i uie faith that he pc v;c, 1 6 Minn. 346 {Z^\ , 53 N. Y. 467; Alechem, Ag. g§ 541-545- . .lie question has arisen, or whatever diverse . . . entertain as to the precise ground of the Hability or fo: ' all the authorities are agreed that, to give a party ^ against the professed agent, he must have been ignora t of authority, and have acted upon the faith of the ; IS, express or implied, that the professed agent had tb. I !ty assumed. Hence the law is that when the professed agent, ig in good faith, fully discloses to the other party, at the time, ihe facts and circumstances touching the authority under which "mes to act, so that the other party, from such information or e, is fully informed as to the existence and extent of his jnty, be cannot-be held liable. Mechem, Ag.. Section 2.~Torts. ul:., J.--ihc [ji '^t a mining corp ■ endorsed by hii- ec in 1-1 '■; ..Rice, a.. ■.- th:; an liiipiK.- is by an . Although drawn, th':-''' warrant)- wherr'- '.v'lr; supra. iie ground and ■n!:- subject o£ mil ; but the liis liability, , rest upon .uid tliat the remedy •n the pr<'sent case is uniformly ^..ce a charge that the defendant's iding to act for said minor is broken, ;. This alleged breach of an implied -umption that the son could not con- |"ity, to his father to act for him Th'^re are two answers to this lit in H; :h contract as this, 1 transa: , .ness, either directly ther, is voidable only, and not abso- re is no bre^ich of the implied war- owing that the act of the agent was iiowledge or consent. The mere fact '■ will not constitute such breach. . Dutch, 14 Mass. 457, that a promis- his partner, Green, who was a minor^ he was not capable of communicat- itract for him, and that, being void, j.bsequent ratification. But the court only, and having been ratified by !'■ it was good against him. See Tyler the piaii; V;r.]1y rq... an take ; '...:]■ on I- ■' 'In thi^ ' him, in e author fusal to pay, cha: i.e alhi-ined.^ ■ rvi' -r t infancy to this contract ^ ' by the infant himself, or those \ V is a personal privilege of whicl; nself. Voorhees v. Wait, 3 Gr, 3 iigham on Inf. 49. eks to disaffirm the infant's cont. • i ' 'd party on the contr ■ not denied. The p iic Loatract belongs to the in' i :;rcise it for him. The mere - id and proved, is not a denial of he infant, for it may be based on validity of the patent, fraudulent :d in the court of common pleas Jon, 64 id. I TORTS. 415 NEWPORT AND Another v. SMITH. 1895. Supreme Court of Minnesota. 61 Minn. 277. Mitchell^ J. — This action was brought to recover damages on the ground that the defendant, assuming to be the agent of his mother, made a contract in her name which was not binding upon her by reason of the fact that it was unauthorized by her. The ground and form of the professed agent's HabiHty in such cases has been the subject of discussion, but all the authorities are agreed that he is liable in damages to the person dealing with him upon the faith that he possessed the authority assumed. Sheffield v. Ladue, 16 Minn. 346 (388) ; Jefts v. York, 10 Cush. 392; Baltzen v. Xicolay, 53 N. Y. 467; Mechem, Ag. §§ 541-545. But in whatever phase the question has arisen, or whatever diverse views the courts may entertain as to the precise ground of the liability or form of the remedy, all the authorities are agreed that, to give a party a legal remedy against the professed agent, he must have been ignorant of the want of authority, and have acted upon the faith of the repre- sentations, express or implied, that the professed agent had the au- thority assumed. Hence the law is that when the professed agent, acting in good faith, fully discloses to the other party, at the time, all the facts and circumstances touching the authority under which he assumes to act, so that the other party, from such information or otherwise, is fully informed as to the existence and extent of his authority, he cannot be held liable. Mechem, Ag.. § 546, and cases cited. ^ Section 2. — Torts. SWIM V. WILSON. 1891. Supreme Court of California. 90 Cal. 126. De Haven, J. — The plaintiff was the owner of one hundred shares of stock of a mining corporation, issued to one H. B. Parsons, trustee, and properly endorsed by him. This stock was stolen from plaintiff by an employee in his office, and delivered for sale to the defendant, ^ "It is material in such cases that the partj- complaining of a want of au- thority' in the agent should be ignorant of the truth touching the agency. If he has a full knowledge of the facts, or of such facts as fairly and fully put him upon inquiry for them, and he fails to avail himself of such knowledge, or the means of knowledge reasonably accessible to him, he cannot say he was misled, simply on the ground that the party assumed to act as agent without authority, in the absence of fraud." Osborn, C. J., in Newman v. Sylvester, 42 Ind. 106, 113. 4l6 LIABILITY TO THIRD PARTY. who was engaged in the business of buying and selHng stocks on commission. At the time of placing- the stock in defendant's posses- sion, the thief represented himself as its owner, and the defendant, relying upon this representation, in good faith, and without any no- tice that the stock was stolen, sold the same in the usual course of business, and subsequently, still without any notice that the person for whom he had acted in making the sale was not the true owner, paid over to him the net proceeds of such sale. Thereafter the plaintiff brought this action to recover the value of said stock, alleging that the defendant had converted the same to his own use, and the facts as above stated appearing, the court in which the action was tried gave judgment against defendant for such value, and from this judg- ment, and an order refusing him a new trial, the defendant appeals. It is clear that the defendant's principal did not, by stealing plain- tiff's property, acquire any legal right to sell it, and it is equally clear that the defendant, acting for him. and as his agent, did not have any greater right, and his act was therefore wholly unauthorized, and in law was a conversion of plaintift"'s property. "It is no defense to an action of trover that the defendant acted as the agent of another. If the principal is a wrongdoer, the agent is a wrongdoer also. A person is guilty of a conversion who sells the property of another without authority from the owner, notwithstand- ing he acts under the authority of one claiming to be the owner, and is ignorant of such person's want of title." Kimball v. Billings, 55 Me. 147, 92 Am. Dec. 581 ; Coles v. Clark, 3 Cush. 399 ; Koch v. Branch, 44 Mo. 542, 100 Am. Dec. 324. In Stephens v. Elwell, 4 Maule & S. 259, this principle was applied where an innocent clerk received goods from an agent of his em- ployer, and forwarded them to such employer abroad, and in render- ing his decision on the case presented. Lord Ellenborough uses this language : "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 ignoranc-e 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 conversion who intermed- dles with my property, and disposes of it, and it is no answer that he acted under the authority of another who had himself no authority to dispose of it." To hold the defendant liable, under the circumstances disclosed here, may seem upon first impression to be a hardship upon him. But it is a matter of every-day experience that one cannot always be per- fectly secure from loss in his dealings with others, and the defendant here is only in the position of a person who has trusted to the honesty of another, and has been deceived. He undertook to act as agent for one who, it now appears, was a thief, and, relying on his representa- tions, aided his principal to convert the plaintiff's property into TORTS. 417 jn- • er- ■e Min. (. J ev Min. Lc k ■ question iir ;« th^ <"?.?e - . 312. In tli: ad made a sa";^ laid him the proceeds T whor"i ;>n>cK, V. :^: 1:: '..'. ' ' ■' ,. ^ony, no ' . rendered a^c^ainst Iniii. settled r. I action of trover, to vviiich the present aolioii .me conckision was reached in Kimball v. Billings, 55 Me. \m. Dec. -'^T ^^< nr.mr— fv SO id in that case by the agent be- ii govern: \ble to bearer. The court there — •* it any in-c!;-- u!;il ihe property sold was government ■ to bearer. The bona fide purchaser of a stolen bond rer might perhaps defend ven the true there is no rule of law ; .nitv t" ''• I he thief in such cases, nor to the agi. ,,. * * * The niH" ■.••' i 1 a -inji'' Mui" n notes and V '1'-.- not bojh over no ■flis stolen prup<- ^ ,'.ip/ other mer iority. ;• . '1 fronT li !he amount 1 Alii aiission. At the time ' ^ thief repre?/-'-' ]ion this rep; the stoc- and sub^ ■■ii iie had aci " to him the - Drought this "he deferi'-'-^' as above ...aig- stocks on endant's posses- d the defendant, without anv no- '.- of • for . ;;ng that '.Mi the facts in was tried 'in this judg- nt appeals, leahng plain- equally clear did not have any athorized, and in lant acted as ae agent is a oii who sells the er, notwithstand- ot one claiming to be the owner, and ., - ,-,+ ;ti,. ' Vimball v, Billings, 55 , Cush. 399 ; Koch v. lei • ^>i under the .' •. -e of it." T' '.-.Id the f= jieit^. may seem ii; it is a matter of c (vf anotiier, and has b I )iu^ \\ 'I'l. it 1:. ;W aDTV principle was applied • an agent of his em- ''■■rr.ac\, and in render- >orough uses this . conversion in the Tiie clerk acted ' benefit when he ii-ts may amount ■ho intermed- J ..iswer that he > authority to :es disclosed iijnm him. B-i* 1 ■t always be p 'be defend'! :)•; '.i' .. the hf>nf ""' .•■* act as : . n. his rej :he plaintiff's property into -■i' TORTS. 417 money, and it is no greater hardship to require him to pay to the plaintiff its vakie than it would be to take the same away from the in- nocent vendee, who purchased and paid for it. And yet it is univer- sally held that the purchaser of stolen chattels, no matter how inno- cent or free from neglig-ence in the matter, acquires no title to such property as against the owner ; and this rule has been applied in this court to the case of an innocent purchaser of shares of stock. Bar- stow V. Savage Min. Co., 64 Cal. 388, 49 Am. Rep. 705 ; Sherwood v. Meadow Valley Min. Co., 50 Cal. 412. The precise question involved here arose in the case of Bercich v. Marye, 9 Nev. 312. In that case, as here, the defendant was a stock- broker who had made a sale of stolen certificates of stock for a stran- ger, and paid him the proceeds. He was held liable ; the court, in the course of its opinion saying: "It is next objected that as the defend- ant was the innocent agent of the person for whom he received the shares of stock, without knowledge of the felony, no judgment should have been rendered against him. It is well settled that agency is no defense to an action of trover, to which the present action is anal- ogous." The same conclusion was reached in Kimball v. Billings, 55 Me. 147, 92 Am. Dec. 581, the property sold in that case by the agent be- ing stolen government bonds, payable to bearer. The court there said : "Nor is it any defense that the property sold was government bonds payable to bearer. The bona Ude purchaser of a stolen bond payable to bearer might perhaps defend his title against even the true owner. But there is no rule of law that secures immunity to the agent of the thief in such cases, nor to the agent of one not a bona fide holder. * * * The rule of law protecting bona fide purchasers of lost or stolen notes and bonds payable to bearer has never been ex- tended to persons not bona fide purchasers, nor to their agents." Indeed, we discover no difference in principle between the case at bar and that of Rogers v. Huie, i Cal. 429, 54 Am. Dec. 300, in which case, Bennett, J., speaking for the court, said: "An auctioneer who receives and sells stolen property is liable for the conversion to the same extent as any other merchant or individual. This is so both upon principle and authority. Upon principal, there is no reason why he should be exempted from liability. The person to whom he sells, and who has paid the amount of the purchase-money, would be com- pelled to deliver the property tO' the true owner or pay him its full- value, and there is no more hardship in requiring the auctioneer to account for the value of the goods, than there would be in compelling the right owner to lose them, or the purchaser from the auctioneer to pay for them." It is true that this same case afterwards came before the court, and it was held, in an opinion reported in Rogers v. Huie, 2 Cal. 571, 56 27 — Reinhard Cases. 4l8 LIABILITY TO THIRD PARTY. Am, Dec. 363, that an auctioneer who in the regular course of his business receives and sells stolen goods, and pays over the proceeds to the felon without notice that the goods were stolen, is not liable to the true owner as for a conversion. This latter decision, however, cannot be sustained on principle, is opposed to the great weight of authority, and has been practically overruled in the later case of Cerkel v. Waterman, 63 Cal. 34. In that case the defendants, who were commission merchants, sold a quantity of wheat, supposing it toi be the property of one Williams, and paid over to him the proceeds of the sale, before they knew of the claim on the plaintiff in that action. There was no fraud or bad faith, but the court held the de- fendants there liable for the conversion of the wheat. It was the duty of the defendant in this case to know for whom he acted, and, imless he was willing to take the chances of loss, he ought to have satisfied himself that his principal was able to save him harmless if in the matter of his agency he incurred a personal liability by the conversion of property not belonging to such principal. Judgment and order affirmed. Garoutte, J., McFarland, J., and Sharpstein, J., concurred. Beatty, C. J., and Paterson, J-, dissented. Rehearing denied.^ JENNE V. SUTTON. 1 88 1. Supreme Court of New Jersey. 43 N. J. L. 257. Beasley, C. J. — This action was brought to recover damages for hurts received by the plaintiff by the bursting of a bomb fired in one of the public streets of Jersey City. As the use of a public highway as a place in which to fire such an explosive was illegal, and per se constitutes a public nuisance, there can be nO' question with respect to the legal liability of all persons concerned in the doing of such act, or who caused or procured it to be done, for all the damages proxi- mately resulting. The only debatable question, therefore, seems to be whether the evidence sufficiently connected the plaintiff in error, John F. Jenne, with this illegal transaction. When the case was rested at the trial by the plaintiff, an exception was taken to the refusal of the trial judge to nonsuit; and it is in this respect that the injury just alluded to arises. Was there any evidence on this head on which the jury could legally found a verdict against this defendant? My examination of the case has led me to conclude that there was evidence of this character, to this measure: such testimony was not entirely demonstrative, but it seems to have made up a prima facie ^Accord: McPheters v. Page, 83 Me. 234; Koch v. Branch, 44 Mo. 542. But see Lewthold v. Fairchild, 35 Minn. 99. I which : Jennc. neeting on i. . ..^ Pavonia Cli d by private subscrii • L- reque- 'ii;' order , _ .er I receive." The fire-work c .., ._;.... ''""meet- Ki. 1 a political club, kno .me of ]'.',; I ia Club. The place c n- !i ( ' the Catholic Institute :il g-s, and in a pu^ " which : as e customary to i: Tennc. n error, was the pre.- f[-i(:=rii>n was adver.. , ■es of the fire-wo pel.-'' ' who fired the firc-\-, mi^ vendor of the fire-works, and be rel ? fcGee came and ordered . T' '"'ri^ F. Jenne for the Pavonia ' ]]■' - ■ '■■ .]]e fire-w ■ '. ' ■■• . -r ■ . , i-:., when T V • fire-VvOrks' on the st'' '}■'■■ A^" Speaking of the rii.- . 't .k„ ~ ' . ■' . se ; he ])aid twelve dollar bill. ' He further said : "I went because it was asKea Lliai: a coinpciei., tppn be sent." . in my judgment, here was an amount of evidence which jned would justify the finding that this defendant so partici- : a this affair as to make him answerable for the consequences. icGee's statements were not objected to, and such statements, i nection with the fact that the defendant paid the bill for the ;. ' >rks so ordered, and for tl ' ' s of the man wh' ^' < ■. 'lad a strong te'^l^nrv to the defendant. •> •.' V that he or ..- I, ' the place in V , intended that these expi ill"-!-, • 3s the usual place .., 1 an act and purpose , Tor it can . ' '' ^ " acting in hi ' the pav -wer for nir were but the agents of other perso . ;.>e made, idgment be affirmed.^ If a Mnit.h'': servant lames a hor , .inst the mater and not against ^ ness of this ;s questioned by Co" llai.]ij"v to Am. Dec. 363, that ;^ss receives rs- felon withoi- le ouiier a;^ r be sustain f 'itv, arif' 1 V. W?^' an auction were to be of th com I th" ■ I- 4,''ular course of his er the proceeds is not liable to n. li.owever, L weight of iier case of l.Tiits, who sing it ii .i'., proceeds plaintiff in that court held the de- iieat. abC to know for whom the chances of loss, he pal was able to save him . ...curred a personal liai-iiir^ onging to such principal seated. J., concurred. 257- i 01 Ul./ as a p' ronstif- to the i^ - or who ca: niately resu u.. whether the ev . F. Jenne. with the trial bv the jury could iegfaliy T T. .^^^ ':imination i this cb tntiit-; vicmonstraT . .:^ ; .] >.i!,^:.i. .._/ iLi^.wvvi damages loi the bursting of a bomb fired in one use of a public highway was illegal, and per se ■■>■> question with respect in the doing of such act, be done, tor all the damages proxi- ■^.^r. ,;,..•.,-".-.■,. nv.>r..fare, seems to be .>" in error, John 'lit ase was rested at en to the refusal of the the injur}' jr.- d on which t. '?t this del end ant? .._ to conclude that there "vva- ■asure : such testimony was not • have made up a prima far- 4 ^Accord: McPhetei ec IvCwthold V. Fairc TORTS. 419 case. The fire-works in question were intended to signalize the meet- ing of a political club, known and incorporated under the name of Pavonia Club. The place of such meeting was in a building denom- inated the Catholic Institute, where it was customary to hold political meetings, and in a public street in front of which building it was likewise customary to exhibit fireworks. Mr. Jenne, the plaintiff in error, was the president of this club. The meeting on the night in question was advertised in the name of the Pavonia Club, but the expenses of the fire-works were raised by private subscription. The person who fired the fire-works in the street was an employee of the vendor of the fire-works, and being a witness, stated that one, "Sam- uel McGee came and ordered the exhibition of the fire-works for John F. Jenne for the Pavonia Club. I was at the Catholic Institute that evening, firing off the fire-Avorks at the request of John F. Jenne ; I did not see Mr. Jenne when I received the order ; I went and fired off the fire-works on the strength of the order I received from Mr. McGee." Speaking of the fire-works, he said : "John F. Jenne paid for these ; he paid twelve dollars ; my services were included in that bill." He further said : "I went because it was asked that a competent man be sent." Now, in my judgment, here was an amount of evidence which imexplained would justify the finding that this defendant so partici- pated in this affair as to make him answerable for the consequences. Mr. McGee's statements were not objected to, and such statements, in connection with the fact that the defendant paid the bill for the fire-works so ordered, and for the services of the man who exploded them, had a strong tendency to implicate the defendant, and to show not only that he ordered the goods, but that he procured them to be used at the place in question. It is not an unreasonable presumption that he intended that these explosives should be set off in the public street, which was the usual place on the occasions of the meeting of that club. Such an act and purpose would make him responsible to the plaintiff, for it can signify nothing, under such circumstances, that he was acting in his official capacity as the president of this cor- poration, for all the participants in the creation of a public nuisance are Hable to answer for its ill effects, without regard to the fact that they in such affair were but the agents of other persons. There was a prima facie case made. Let the judgment be affirmed.^ ^ "If a smith's servant lames a horse, while he is shoeing him, an action lies against the master and not against the servant." ^ i Bl. Com. 431. The cor- rectness of this is questioned by Cooley in his edition of Blackstone, on page "Misfeasance is the improper doing of an act which the agent might lawfully do. Where an agent fails to use reasonable care or diligence in the perform- ance of a duty, he will be personally responsible to a third person who is in- jured. His liability in such cases is put upon the ground that he is a wrong- 420 LIABILITY TO THIRD PARTY. i "" BROWN PAPER COMPANY v. DEAN. 1877. Supreme Judicial Court of Massachusetts. 123 Mass. 267. Tort for the obstruction, from July 3, 1873, to March 3, 1875, of the machinery of the plaintiff's mills in Adams, by water set back by a dam built by Horatio N. Dean, in i860, lower down the stream. Writ dated March 3, 1875. The case was tried in the superior court, before Dewey, J., with the preceding case, who reported it for the consideration of this court in substance as follows : The plaintiff corporation was duly organized on June 11, 1873, and the mill property and rights of the firm of Levi L. Brown and others were duly conveyed to the plaintiff. Horatio N. Dean died intestate on August 15, 1872 ; and after his decease the defendant, who was his son and co-partner, continued to carry on the mill business in, the same manner it had been previously carried on, until January 6, 1873, when the heirs of Horatio N. Dean conveyed the mill property to the widow and daughters of Horatio N., and after that date the business of the mills was carried on by the defendant on their ac- count, and acting as their agent, he having a power of attorney from them, dated January 6, 1873, the material parts of which are printed in the margin. The defendant contended that on these facts he was not personally liable for any damages arising from maintaining the dam as alleged, and took the same exceptions as in the preceding case, excepting that relating to the survival of the action. The jury returned a verdict for the plaintiff. If the exceptions in the preceding case were sus- tained upon any other ground, except that no action for the alleged cause could be maintained against an administrator, then the verdict in this case was to be set aside, and the case stand for a new trial. If those exceptions were not sustained for any other cause, judgment was to be entered on the verdict in this case, unless the court should be of the opinion that, upon the facts herein stated, this action could not be maintained against the defendant, in which case the verdict was to be set aside, and the judgment entered for the defendant. In the case at bar, the dam complained of was erected by Horatio N. Dean in his lifetime, while owner of the property, to supply water for the use of his tannery. The defendant had nothing to do with its construction. Before the time covered by the declaration in doer, and, as such, responsible." Russell, J., in Southern Ry. v. Rowe, 59 S. E. (Ga.) 462, 467. "In torts the relation of principal and agent does not exist; they are all wrongdoers, and may be sued jointly or separately." Franklin, C, in Berghoff V. McDonald, 87 Ind. 549, 559. In Phelps v. Wait, 30 N. Y. 78, it was held that principal and agent may be sued jointly for the negligence of the latter. The contrary was held in Parsons v. Winchell, 5 Cush. (Mass.) 592. ih {'.\r- .--'-:. .: aio A. area, via Ti.t" ■: lo ine i>'-eni;-^- x .;jne the agent of the p ' on the I A the tannery fo: -ley V i. During the ti; ' i" the height or structure ot . ■-truoturc, and the defe-T' ich control as would -vtructuTe erected upon .,!(. by the power of attornev. -v- . ■'' ing and tamv iie defendant a ir->ance by causing backwat'. ner .n which the defendant ha< . .. .... . . created by the dam itself. The ■ inplained of s1t"-v n. by the facts reported, to u.. . leen caused b 'i;' '.lant, authorized or unauthorize-xd. connected t :-. ion or maintenance of the , '»struction. Carietcn i^:' !1. I Foster 291; Noyes v. .1, 24 Conn. 15; Pills:; . •, 44 Me. 154. : '.ell V. Josselyn, 3 Gray 309, cited by the plaintiff, there was a j>" ve act of negligence on the part of the agent who had charge of ■ : uilding, from which the plaintiffs suffered, and not from a '"' !ce created or maintained by owners. m W'amesit Power Co. v. Allen. ' --. 352, all of the defend- ants actively participated in the wro ,;ed. Judgment for the defendant. y]lLT\:.'^ SWAN. iSS-i- Supreme Court B. Chrism AN, Judge an action for dar A. V. Feltus an eclaration avers Park, and that vn as Lochdale. an ' rthecha: as ^nd dCi' 'id more ti! • •r, I" said pi: .j-\v has remained t'^r the joint protectior rs, and ^f has always i • ''■•*=• custom, ann :> have ■ e waters frrr time collect! .] levee id being in anti \:.\ ■ iIk' ' ' 420 LIABILI 1 BROWN PAPER COMP/v I.-„ 'REME Jt 123 Mass. T'ORT for the ob the machinery '^ a daiii built bv Writ dated before De. considerate , stance -.t. The-^' 'nly org; the m' lie firm ^\•■' : iff. Ho: 01 i .- deceas< j-ariic nianr wlicn the the wid'~»v, businc.-. ■ ■ \ ■-,' ,■ cause . in thi> . those exct! was to l>e 'v-i. be of the 0])ini -" ' ^ > maintai. be set a March 3, 1875, of water set back by d^wn the stream. superior court, ■'■id :t for the Brown and others '- )ean died intestate udant, who was his c mill business in the vntl] Tanuary 6, 1873, vill property to .r that date the the defendant on their ac- ic liHving a power of attorney from ,' material parts of which are printed on these facts he was not personal! rom maintaining the dam as alleged, lu the preceding case, excepting that ction. The jury returned a verdict • ■ in the preceding case were sus- !'t that no action for the alleged 1 administrator, then the verdict me case stand for a new trial. If ■ for any otlier cause, judgment bis case, unless the court should - herein stated, this action could •""*^, in which case the verdirr .red for the defendant, ted by Horati '•ty, to supp <; such, tl 162, 467. he relatii and may ' '. 87 Ind: -■ ['nnrii';ii ''.n-i agent v contrary was held in « not exist; they nklin, C, in Bcr^lijlf ;'. 78, it was held that •x^ of the lattt ' ' ■3.) 592. TORTS. 421 this case, Horatio N. died, and the defendant, having- no title to the premises, became the agent of the present owners, and carried on the business at the tannery for their benefit under a power of attorney from them. During the time complained of, there was no change in the height or structure of the dam in question. It was a permanent structure, and the defendant had neither ownership, possession, nor such control as would authorize him to change or remove any such structure erected upon the premises by the owner. The defendant, by the power of attorney, was only employed to carry on the business of purchasing and tanning hides. There is no claim that the premises of which the defendant had charge, and which were not in themselves a nuisance by causing backwater, had become a nuisance by the man- ner in which the defendant had used them. The nuisance here was created by the dam itself. The injury complained of is therefore not shown, by the facts reported, to have been caused by any act of the defendant, authorized or unauthorized, connected with either the erection or maintenance of the alleged obstruction. Carleton v. Red- ington, I Foster 291 ; Noyes v. Stillman, 24 Conn. 15 ; Pillsbury v. Moore, 44 Me. 154. In Bell V. Josselyn, 3 Gray 309, cited by the plaintiff, there w'as a positive act of negligence on the part of the agent who had charge of the building, from which the plaintiffs suffered, and not from a nuisance created or maintained by owners. In Wamesit Power Co. v. Allen, 120 Mass. 352, all of the defend- ants actively participated in the wrong- charged. Judgment for the defendant. FELTUS ET AL. V. SWAN. 1884. Supreme Court of Mississippi. 62 Miss. 415. Hon. J. B. Chrisman, Judge. This is an action for damages brought on the 3d of September, 1884, by J. A. V. Feltus and others against D. D. Withers and B. P. Swan. The declaration avers that the plaintiffs own a plantation known as Deer Park, and that defendant Withers owns an adjoining plantation known as Lochdale, "which is and has been for more than ten years past under the charge and control of defendant Withers, as the owner thereof, and defendant B. P. Swan as the manager and agent thereof, and that more than ten years ago a levee was built by the respective owners of said plantations, and from thence until now has remained for the joint protection thereof against high w^aters, and it has always been the custom, and plaintiffs were entitled to have the waters from time to time collecting behind and back of said levee and being in and upon their said land, from rain, sipage, and over- 422 LIABILITY TO THIRD PARTY. flow, drained and carried away from the same through a certain drain, cut and run around, in, and through said Lochdale plantation, and thence off of plaintiffs' said land, and that it was the duty of defendants, owning and occupying the adjoining close and plantation aforesaid, to open the said drain, that the water might be drained off of plaintiffs' land aforesaid, and plaintiffs' land could only be drained through defendants' said close and plantation ; that during the year 1884, from the ist of January to the ist of September, large cjuan- tities of water, from rain, sipage, and overflow, collected in and driven back upon plaintiffs' land, were obstructed and prevented from running off and away from the land by defendants neglecting and refusing to open the drain aforesaid, which it was their duty to do, and by reason of such neglect and refusal the aforesaid land of plaintiffs for the time aforesaid was rendered unfit to cultivate and greatly damaged, etc." Swan demurred to the declaration on the ground that, as the agent of Withers, he was not liable for the acts of omission and neglect averred in the declaration. The court sustained the demurrer, and the plaintiffs asked leave to amend their declaration by inserting words therein charging that the neglect and refusal which it was de- clared produced the damage to the plaintiffs "was malicious and with the intention of injuring the plaintiffs' aforesaid lands." The court refused to grant such leave and dismissed the action as to Swan. The plaintiffs dismissed as to Withers and appealed against Swan. C. P. Neilson and D. C. Bramlett, for the appellants. It is not clear that the injury complained of is a mere nonfeasance of the agent — in fact, it occurs to us that we charge a positive wrong. This must be apparent to any one acquainted in theory or fact with the levee system of the Mississippi river. In times of high water, back of all or nearly all levees large quantities of water collect to the height of the river water in front, and this back water must be drained off as the river recedes, otherwise it is more damaging than to have welcomed the overflow. And it is also true that there are natural drains in many sections through which only the water from a large area of land may be carried off. But whether the wrong charge is a misfeasance or nonfeasance, we contend that it is an exception to the general rule which exempts a servant from personal liability to a third person for injuries done by negligence in the discharge of his duties. Here is a most flagrant outrage done, causing great damage, which was alone in the power of appellee and Withers to avert, and they are equally liable under the declaration here and were properly joined. See I Wait's Actions and Defenses 264, 265 ; Addison on Torts (3d ^^•) 933- It was error in the court below to deny our application to amend our declaration. Carson, Shields & Carson, for the appellee. : 423 ..le liabiJii for torts:, uion between act . i iV.-.>.iv;al. ncy, §§ 308. 309 ... ■ 'j}>^\ ^i'^ Agency 396. : amendment iiave made the dech' 1 '.\ I'.ucver motive opucu^ju • ■. me agent, the charge a. ^ only that he had failed to do, and not that he had doi^ '", and for nonfeasance or omission to act at aii tiic -ble only to his employer. JJiLAiN V. JJKULiV ET AL. -The appellant broiu iction agaii: ■2:e E. Brock, Ro^ ' ^ cr closet or L a servant is ^•ruiv V. Manh- 422 LIABILITY TO THIRD PARTY. flow, drained and c 'i; and run a' ce off of p: ts, owning ;. i, to open tl"i ot plaintiffs' land at- through defenda"'- 1884, from the : tities of writ' driven back from vw ' and rcf!- do, plaii .. greatly the words !i the back ■.. height ' drained oti to have wei natural drai large area oi is a misfeasanc«? to the general rv. a third person fo duties. Here is a most flai, ' Me in the po ,Jly liable un(' See 1 Wait's Action ■ ed.) 933. It was err ar.nend our declaration. ay fron ; gh a certain ' ' 'intation, '-nty of -don . ■{ off e arained •^, the year . large quan- 'ccted in and (id prevented 'ts neglecting their duty to .; refusal the aforesaid land of 'endered unlit- e such cr'- it in an unc( '; -..:_, however, canncL . . ne of nv cau-'. the appellees, the Cattersoii ' nert}- in repair and .safe f'.*! ■.r. ii..iLiici luu .ncv. . irs, do so in a negligent manner. The)- simply ne for their principal the dtiLy which he owed to hib t"- ilure to do was merely a nonfeasance and not a misfea counsel are all cases where the agent was iield c. In none of those cases did the court hold that ;t was liable for failing to perform a duty owing from the J to another who was injured by reason of such neglect of dut. That when an agent owes a dutv and one to whom the dijtv is . injured by reason of tlir to perform, s li^^le does not admit '~>+ f*""" he i? 11:: :t to perfor- cter. Not so, ot 1' ». principal, to perform the omplaint stated no cause affimTpfi. ^94; pet- 4^4 lUbilitv lliD PARTY. 1 as the agents c ..clling, collect t'->'' ii-pairs to keep the ^ June 17, 1S92. apT' ' took immediate and rent ■ic necessary .!^ on or about rsons anti VI T pt tbf tii'i-:nicncement < j'.>i:;ts. under the ; and had no' twenty year- but plaintiff of July. -^^ broke t! T' ' .=^et "w^- .ore than ) >vell knew • the 31st da> 'ing. the floor • ihe duty of th.- building, and t' ! necessary, in thr k did not ap 1 served upoi to the com vl::i"t 4" presents the jUb; but :■ where a du l^erformancv stilts. True cha; ' ' "rritcrsons, who were tli'. ence in failing l< •,.i' 11 it vvas intended: ^'^^ i not mere nonfeasance,'" 1' '•-'. An agent, while obeying ; >. - . of the principal, is not if he does, not only the principal n-wer in damages therefor. But iud not on the agent, its non- ;!)ility against him. if injury re- ihe principal to faithfully dis no duty to others except tha; hall not do anything which wiJ ; ils to perform a duty which h' of -nch non -performance 01 can be main - count thereof aw, § 695 ; Cran io6, and case- ure \'e the p' feasance. Nonfeasa of his nrifUM-tri^'ini-f, . -; from a ■ .ace and which one I i!)! >n liitTi ;: TORTS. 425 duty, he agrees to do for another; that which is imposed upon him merely by virtue of his relation to his principal. Misfeasance, on the contrary, may consist in failing- to do that which is imposed as a duty, or in doing for another, in an improper manner, that which the principal ought to have done. As of the latter class would be where an agent actually undertakes and enters upon the performance of a certain work for the principal, in the exe- cution of which it is his duty to use reasonable care in the manner of executing it, so as not to cause injury to others, and he cannot, by failing to exercise such care, either while performing the work or by abandoning it in an uncompleted condition and leaving it unguarded or unsafe, exempt himself from liability to those who may suffer injury by reason of such negligence. Osborne v. Morgan, 130 jMass. 102. This case, however, cannot be said to be one of misfeasance, be- cause the appellees, the Cattersons, were under no legal duty to keep the property in repair and safe for use, neither did they, in making the repairs, do so in a negligent manner. They simply neglected to perform for their principal the duty which he owed to his tenants. Their failure to do was merely a nonfeasance and not a misfeasance. The cases cited by counsel are all cases where the agent was held liable for misfeasance. In none of those cases did the court hold that the agent was liable for failing to perform a duty owing from the principal to another who was injured by reason of such neglect of duty. That when an agent owes a duty and one to whom the duty is owing is injured by reason of the failure to perform such duty, the agent is liable, does not admit of question for he is liable for the re- sult of his neglect to perform any duty devolving upon him in his individual character. Not so, however, when he is simply the agent of the principal, to perform the duty owing from the principal to others. The complaint stated no cause of action against the appellees, the Cattersons. Judgment affirmed. Filed November 13, 1894; petition for a rehearing overruled Jan- uary 30, 1895.1 ^ ^Accord: Delaney v. Rochereau, 34 La. Ann. 1123; Drake v. Hagan, 108 Tenn. 265 (senible). Contra: Baird v. Shipman, 132 111. 16; Carson v. Quinn (Mo.), 105 S. W 1088. f 426 LIABILITY TO THIRD PARTY. VAN ANTWERP v. LINTON. 1895. Supreme Court of New York. 35 N. Y. Sup. 318. Parker, J. — This appeal brings up a judg-ment entered on the dis- missal of the complaint after the opening address to the jury by plain- tiff's counsel, which was taken down. From the complaint and open- ing, it appears that the plaintiff was injured by the fall of the grand stand at the Yale-Princeton football game on Thanksgiving day, 1890, on grounds in the possession of the Brooklyn's Limited, a cor- poration organized under the laws of the state of New York. The action was brought against the Brooklyn's Limited, and Messrs. Linton, Chauncey, and Wallace, who were appointed a committee of the board of directors of the Brooklyn's Limited, to put the grounds in condition for the exhibition of the game. The Brooklyn's Limited made default, and the question presented to the trial court, upon the motion to dismiss the complaint, was whether, from the complaint and opening, a cause of action against the individual defendants was stated. It was conceded that the individual defendants did not have any lease from the Brooklyn's Limited, nor any one else, running to them ; and the sole ground upon which the plaintiff sought to charge them with liability was that they were appointed a committee by the directors of the corporation to erect a stand, and otherwise pro- vide for the reception and convenience of the public, and that by rea- son of their negligent omission of duty there was a defective con- struction of the stand, which led to its falling, resulting in injury to the plaintiff. As it was conceded that the Brooklyn's Limited was a domestic corporation duly organized under the laws of this state, and in possession of the premises when the stand was erected, and also at the time of the accident, liability against the individual defendants could not be predicated upon their being directors, officers, or stock- holders in such corporation. Demarest v. Flack, 128 N. Y. 205, 28 N. E. 645. That they were the agents of the corporation in directing and superintending the erection of the stand was assumed by the learned trial judge, as he was bound to do, upon the complaint and opening; and he reached the conclusion that the acts with which they were charged constituted nonfeasance and not misfeasance. If he was right in such respect, it is conceded that the complaint was properly dismissed ; for, whatever may be the rule in other jurisdic- tions, it is conceded that in this state an agent or servant is not liable to third persons for nonfeasance. As between himself and his mas- ter, he is bound to serve him with fidelity ; and for a breach of his duty he becomes liable to the master, who, in turn, may be charged in damages for injuries to third persons occasioned by the non- feasance of the servant. For misfeasance the agent is generally lia- ble to third parties suffering thereby. The distinction between non- incipa.1 or iv sts upon hii iw imposed upo; then he is liable mt urges that .. y the corporatioi! a ■omplained of consi>^ :5tiy of his a.£ iividua! def.. ce. With commendable ., he has br authorities in other juris- ading to supj 'Ut we refrain from thei ration, becau&e ding that the courts of L*i! . -i uc have determine Murray v. Usher, 117 N. Y. 542, 23 N. E. 564. t' 'loved upon a platform in a sawmill be' ^i .-:. sustained injuries, by reason of its : - ck:- :11s death. His administrator brought an actit the f the mill and one Lewis, who was their s'j; _„ . lent meral charge of the business, and being specially mstructed iter the necessary repairs, which included the dut>' of in- vhe platform from time to time to see that it was kept in ;dition. TiK' IS recov' ' iist all 0:' the court o th(" niv . the ?n!' as considered; die * that thr ident to nc'-fon^ the -i nnon ' :vce, for , ■3 were. x... c .......--, , one under considera "orm the duty wl ! neglect led tr> i< In this ' Lion of L '.y, they were a: 'nr-n were of the :.:.. •ge is that the r y discha ' .-c iums V . an the da- servant h:s .Mi-sion ie>'.)- SUPREMC OF iNEW Mip. 318. Pakker, J. — Thi missal of the co — tiff's counsel, v ing. it stand p ■ nct^.M; Ml, \y in pi '- the til holders in N. E. 645. and ■'Upenii.,- le?. rncd trial ji; ~»imd to w fea,>; u ble to •red on the dis- e jury by plain- iaint and open- Sfrand '^ day, laniited, a cor- ■w York. The ',. and Messrs. c^i a committee of to put the grounds ' '.>klyn's Limited ■\] court, upon ^ complaint lidants was •:'iants did not have ■'' else, rumiing to light to charge i a committee by and otherwise pro- . Lhc public, and that by rea- ' there was a defective con- 1 to its falling, resulting in injury to d that the Brooklyn's Limited was a ized under the laws of this state, and ■ "' - 'and was erected, and also at the individual defendants -. officers, or stock- 128 N. Y. 205, 28 s of the corporation in directing the stand was assumed by the i to do, upon the complaint and •-" that the acts with whic^ ■e and not misfeasance. r plaint w . -T jurisd r.t is not liable ' and his ii;,.'^- i breach ay be c- 1 by th. ar 1? gc- lion bet 4 TORTS, 427 feasance and misfeasance has been expressed by the courts of this state as follows : "If the duty omitted by the agent or servant devolved upon him purely from his agency or employment, his omission is only of a duty he owes his principal or master, and the master alone is liable ; while, if the duty rests upon him in his individual character, and was one that the law imposed upon him independently of his agency or em- ployment, then he is liable." Appellant urges that although these individual defendents were charged by the corporation with the duty of erecting this stand, and the acts complained of consisted in omitting to provide for a con- struction of sufficient strength to withstand the strain to which it was subjected, nevertheless they were guilty of misfeasance, rather than nonfeasance. With commendable diligence, he has brought to our attention authorities in other jurisdictions tending to support his con- tention ; but we refrain from their consideration, because it is our understanding that the courts of this state have determined other- wise. In Murray v. Usher, 117 N. Y. 542, 23 N. E. 564, the plain- tiff, while employed upon a platform in a sawmill belonging to two of the defendants, sustained injuries, by reason of its falling, which oc- casioned his death. His administrator brought an action against the owners of the mill and one Lewis, who was their superintendent having general charge of the business, and being specially instructed to look after the necessary repairs, which included the duty of in- specting the platform from time to time to see that it was kept in a safe condition. Judgment was recovered against all of the defend- ants. In the court of appeals the question of the superintendent's liability was considered ; the court holding that the omission of the superintendent to perfonn the duty devolving upon him constituted a nonfeasance, for which he was not liable in a civil action, but that his employers were. That case, it will be observed, is directly in point with the one under consideration. Lewis, the superintendent, neg- lected to perform the duty which his employers had devolved upon him, and such neglect led to the fall of the platform, which caused plaintiff's injury. In this case the defendants were engaged in super- intending the erection of the stand. As more than one was charged with such duty, they were called a committee. But the duties de- volved upon them were of the same general character as in Murray's case, and the charge is that the fall of the stand was due to their neglect to properly discharge the obligations put upon them by the corporation. In Burns v. Pethcal, 75 Hun 437, 27 N. Y. S. 499, an attempt was made to recover of a foreman for the loss of the life of an employe, due, it was charged, to the omission of the foreman to warn the dead man of the danger of working in a particular place. There was a recovery at the circuit, but the general term reversed the judgment; holding that a servant is not liable jointly with his master, where the negligence of the servant consists of an omission 428 LIABILITY TO THIRD PARTY. of duty devolved upon him by his employment, althoug^h he may be liable where he omits to perform a duty which rests upon him in his individual character, and one which the law imposes upon him in- dependently of his employment. These cases fully sustain the de- cision of the trial court. The judgment should be affirmed, with costs. ^ LOUGH V. JOHN DAVIS & COMPANY. 1902. Supreme Court of Washington. 30 Wash. 204. Dunbar, J. — This is an action against an agent, who was author- ized to rent and repair the tenement house described in the complaint, for permitting the house to become unsafe for want of repairs, from which cause the plaintiff was injured. Paragraph 2 of the complaint is as follows : "That at all said times, and for a long time before, the above named defendant, Sheldon R. Webb, has been and still is the owner of that certain real estate property known as lots 8 and 9, in block 38, of A. A. Denny's addition to the city of Seattle, and of the buildings thereon situated, and that the above named defendant John Davis & Co. has had, and still has, sole and absolute control and man- agement of said real property as the servant and agent of said Sheldon R, Webb, with full power, authority, and direction from their said principal to rent and repair the same, and to keep the same in repair and safe condition for tenants." The other pertinent al- legations are to the effect that a wide veranda, extending along two sides of the building about fifteen feet from the ground, was used in common by all of the tenants, and was enclosed by a railing ; that the railing was allowed to become old, rotten, and unsafe through negli- gence of the defendants, and that, while the plaintiff was playing on the said veranda, by reason of the unsafe condition, the railing gave way, and she fell from said veranda from a height of fifteen feet and more from the ground, and was injured, etc. To this complaint the defendant John Davis & Co. interposed a demurrer on the ground that it did not state facts sufficient to constitute a cause of action ^Contra: Mayer v. Thompson-Hutchinson Building Co., 104 Ala. 611; Ellis V. McNaughton, 76 Mich. 237. On page 242 of the latter case Morse, J., said : "Misfeasance may involve to some extent the idea of not doing; as where an agent, while engaged in the performance of his undertaking, does not do some- thing which it was his duty to do under the circumstances ; as, for instance, when he does not exercise that care which a due regard for the rights of others would require. This was not doing, but it is the not doing of that which is not imposed upon the agent merely by his relation to his principal, but of that which is imposed upon him by law as a responsible individual in common with all other members of society. It is the same not doing which constitutes negligence in any relation, and is actionable." To same effect see opinion of Gray, C. J., in Osborne v. Morgan, 130 Mass. 102. 429 ir:t it, thf 'iemurring- defendant. ' There was no appearance by >. The 3 sustained, and, the plaintiff on her c.,'.. . '"'-'i-nt was entered on the de- ^m such judgmei the demurrer this appeal u. ■spondent has interposed meal for 4is: (I) That the j' ' ■i ; (2) because no *1 3) because this ■ -, action upon tl] . .. . , ..^. . Ill ail these assignment the jud . ihere has been no i- - the case ^u i^' ■ idants, Sheldon R. > erned. Many a, •, but we will notice oniy ' ' art. Fn .-, 12 Wash. I, 40 Pac. 38 ; that an • a default and vacating- judgmem: diereon was not aj , on V. Denny, 26 Wash, 327, 67 Pac. 78, is simply an aiV;: . le doctrine announced in that case. In Johnson v. Lighthoi: '^'^- 32, 35 t*ac. 403, the appeal was dismissed because the Paci.) I & Trust Investment Company was not served with notice of al ; but in that case the said compan)'^ had appeared in the action 'ded a demurrer to the complaint. Fairfield v. Binnian. 13 Wash. .. Pac. 632, was a case where a notice of appeal had not been given jjarty who had appeared in the court below by intervention, and is held that he was as much a party in interest as the parties who uially appeared in the action ■••' ' as entitled to a notice '" il irom any judgment upon i ^ed by the orierinal T>.i ases hardly seem to u ..ere. In this case S^ 10 the action, never had , uur be notice, and the case faii- f v. T. •56, 52 Pac. 227, where it ; filed against several d"- : against all of then^ f those served, an a; f, although there ha^^ e to the defendants * ; >^ .'ition of the . .v^asance the ag^.. "or a mere nonfeasanv ■ th a nonfeasance c»r -anre or act which \vruers aTj'i r.irvr iO THIR: • duty devolved i .:able where he oii his individual char dependently of h- cision of the costs. ^ MS ernpi ■m a dir : which ? . Thes. judglTl': u'^h he may be is upon him in ej upon him in- t 'in the de- nied, with igf:)2. Df- conimon b>- ail railing w? ' ' gence of ' the said ^ wRv. and from lii' lant Joh . did no !ra: Ma •TuRhton, ^ ■? may u engaged • hich it was 1 lie does not c common with all other n constitutes negligence in see opinion of Gray, C. J. . '■' . 30 Wash. 204. iction a,. igent, who was author- nement -cribed in the complaint, become imsate for want of repairs, from 3 injured. Paragraph 2 of the complaint aid times, and for a Iqiig time before, the ■'' ' m R. Webb, has Ix-en and still is the e property- V-nown ?s lots 8 and 9, in don to ' , and of the that the . endant John ill has, sole and absolute control and man- ■erty as the servant and agent of said '11 power, authority, and direction from nd repair the same, and to keep the same •1. for tenants." The other pertinent al- a wide veranda, extending along two en feet from the ground, was used in id was enclosed by a railing; that the I'' rotten, and unsafe through negli- bile the plaintiff was playing on :nsafe condition, the railing gave from a height of fifteen feet and ired, etc. To this complaint the jsed a demurrer on the ground constitute a cause of action • o., 104 Ala. 611 ; ]"' '■ rase Morse, J., s: oing; as wher< , does not do so !!i taiuos; as, for : • :• regard for the v ' is the not i" is relation to a responsible i lun r, :,:^, la the same not doing which ..ciionable." To v.-.w, . tTrrf an, 130 Mass. 102. TORTS. 429 against it, the demurring defendant. There was no appearance by Sheldon R. Webb. The demurrer was sustained, and, the plaintiff electing to stand on her complaint, judgment was entered on the de- murrer. From such judgment sustaining the demurrer this appeal was taken. The respondent has interposed a motion to dismiss the appeal for the reasons: (i) That the judginent appealed from is not a final judgment; (2) because no final judgment has been entered in this action; (3) because this court has no jurisdiction to hear and deter- mine this action upon the attempted appeal herein. The idea em- braced in all these assignments is that the judgment is not final, be- cause there has been no disposition of the case so far as one of the defendants, Sheldon R. Webb, is concerned. ]\Iany authorities are cited, but we will notice only those from this court. Freeman v. Am- brose, 12 Wash. I, 40 Pac. 381, simply decided that an order setting aside a default and vacating judgment thereon was not appealable. Nelson v. Denny, 26 Wash. 327, 67 Pac. 78, is simply an affirmance of the doctrine announced in that case. In Johnson v. Lighthouse, 8 W^ash. 32, 35 Pac. 403, the appeal was dismissed because the Pacific Loan & Trust Investment Company was not served with notice of appeal ; but in that case the said company had appeared in the action and filed a demurrer to the complaint. Fairfield v. Binnian, 13 Wash. I, 42 Pac. 632, was a case where a notice of appeal had not been given to a party who had appeared in the court below by intervention, and it was held that he was as much a party in interest as the parties who originally appeared in the action, and was entitled to a notice of appeal from any judginent upon issues raised by the original parties. These cases hardly seem to us to be in point on the questions in- volved here. In this case Sheldon R. Webb never had become a party to the action, never had appeared in the action nor been served with notice, and the case falls squarely within Keef v. Tibbals, 18 Wash. 656, 52 Pac. 227, where it was held that, where a complaint has been filed against several defendants, and before service has been obtained against all of them the complaint has been stricken on motion of those served, an appeal lies from such order striking the complaint, although there has been no dismissal or other action taken with reference to the defendants not served. The motion to dismiss will be denied. It is the contention of the respondent that the law is well settled that for a misfeasance the agent is personally liable, but that he is never liable for a mere nonfeasance ; and that, the respondent being charged only with a nonfeasance or neglect to do its duty, and not with any misfeasance or act which it ought not to do, the com- plaint on its face shows that it is not liable, and that the demurrer was therefore properly sustained. This rule is announced by some of the law writers and manv of the courts. One of the leadinsf cases 430 LIABILITY TO THIRD PARTY. sustaining this doctrine is Delaney v. Rochereau, 34 La. Ann. 1123, 44 Am. Rep. 456, where it was held that under the doctrine of both the common and civil law, agents are not liable to third persons for nonfeasance or mere omissions of duty, being responsible to such parties only for the actual commission of those positive wrongs for which they would be otherwise accountable in their individual capacity under obligations common to^ all men. In this case a balcony which needed repairs fell, fatally injuring the plaintiff; and, while the agent was not responsible for the injured party's being in the house at that particular time, — he having obtained entrance by means of a key obtained from some one else, — the case is discussed and judgment based upon the doctrine above announced. This is also the established doctrine in New York. The case of Carey v. Rochereau (C. C), 16 Fed. 87, is a Louisiana case, and bases its decision on Delaney v. Rochereau, supra, without discussion. Labadie v. Haw- ley, 61 Texas 177, 48 Am. Rep. 278, held, in accordance with the same rule, that an agent renting his principal's house with authority to construct a cooking range was not liable for injury to an adjoin- ing proprietor, caused by the use of the range ; citing Story on Agency 309, and other authorities. In Feltus v. Swan, 62 Miss. 415, it was held that an agent in charge of a plantation was not liable to the owner of an adjoining plantation for damage resulting from the malicious neglect and refusal of the agent to keep open a drain which it was his duty as such agent to keep open. The announcement of this doctrine is accredited by many of the courts endorsing it to the opinion in Lane v. Cotton, 12 Mod. 472, but it was, as a matter of fact, announced only incidentally in that case in a dissenting opinion. The question of the responsibility of the agent could not have been before that court, for the action was against a postmaster for the loss of a letter which was taken from the mail by a clerk, and it was only the responsibility of the master, and not that of the servant or agent, which was under discussion. The reason assigned to sustain this rule is that the responsibility must arise from some express or implied obligations between the particular parties standing in privit}^ of law or contract with each other. If this be true, it is difficult to see what difference there is in the obligation to their principal between the commission of an act by the agents which they are bound to their principal not to do and the omission of an act which they have obligated themselves to their principal to do. They certainly stand in privity of law or contract with their principal exactly as much in the one instance as in the other, for the obligation to do what ought to be done is no more strongly implied in the ordinary contract of agency than is the obliga- tion not to do what ought not to be done. This reason for the rule not being tenable, and no other reason being obvious, the rule itself ought not to obtain; for jurisprudence does not concern itself with 4■^' Tt ;^hensive If it difference : Oi ill, for the in com' ,••1 \f. ' K >_w ^ -. - - V i-'bv the LUC SCI vant ■'■ ■ ■5 lUS ii. ■■•"cn-.- 'n ■ trol it. neg:iigentl>- r to +1^ 'I -'•■••'■^•^ '-'f ano. ..... . ...,..._ res :ere should : in le£, course, 'I liTp Liinission of t' "■" vo!vf> a non-performance of If it does involve .\ ii' liiat the at-ent is liable !: -■ ig- from his neglect, there i ' ■ ..^ond directly to the injured pr. !i that which necessitates first ■' :>: '■ :" I then a suit by the niaMcr d-j^^^m-i ' wrote the ii in his ai i law endorsed the distinciion upon which his decision, was •d, for, while the doctrine is stated in the Justinian Code that no ii could usually be made liable for a mere omission to act, it was erwise when the omission to act ^"i - ' ■ -- -i-- -c i..t. ■ rnat arsfues that, as an agent is at ' ! ard given him, .■ . it; and, if he f the (.laraages which shall have 0( i>y his n(.)t ::>■ ' the Xicir'i.'in law the distinct' .-ir M-!Ti.^-;!r!Ti ;.i. ■'^rnized under su^ L'lc .-vuniijij.n law the followiri^ a tire, and leaves it to another. • r time and p' with no net and it is argued, very s^ '•' .! l;i .-, r-e not putting .. • 'd be a miscarri;: ■ i^r, .,., nOse duty it is to '. and w^ho negligently faJ car io;i escar>e sustaining this d( 44 Am. Rep. d^C. the common a. VVhiC! : the a <:ii a key indj^men* the 1 : l-heii- piii... ., . for the obl^ iplied in ) do wh; aey V. k Ann. 1 123, held th itie of both its are i' persons for of 'ii-' ''■■ to such wrongs I'ulividual -0 a balcony I, while _; in the ' ained entrance by means > ase is discussed and ;ed. This is also the CLbc ut Carey v. Rochereau e, and bases its decision on v-sion. Labadie v. Haw- ; • ! . ^ I. in accordance with the iting i]is princijv with authority ,■ \v,q^ n. h:!''r ry to an adjoin- ■iting Story M.-l.'.C.-n. Mi : I iL;.!.-. V. OWcUl, 62 Miss. 41^, ' charge of d plantation was not liable to ■ resulting from the / open a drain which 'ini tw l -lUM va^e in a dissenting opinion. nihility of the agent? could not have been 'ster for the loss , and it was only uut that of tlie servant or age'^ ■iiis rule is that the responsibil -'- implied obligations between i orivity of law or contract with ea ■ "e what difference there is ■ a the commission of an >. : ' not to do ?■ .■] ;ns(ives to tb-. i. ot law or contract L\ic instance as in the to be done is no more ■ -y than is the obliga- reason for the rule '. obvious, the rule itself not concern itself with I TORTS, 431 such attenuated refinements. It rests upon broad and comprehensive principles in its attempt to promote rig-hts and redress wrongs. If it takes note of a distinction, such distinction will be a practical one, founded on a difference in principle, and not a distinction without a difference : and there can be no distinction in principle between the acts of a servant ^^•ho puts in motion an agency which, in its wrong- ful operation, injures his neighbor, and the acts of a servant who, when he sees such ageny in motion, and when it is his duty to con- trol it, negligently refuses to do his duty, and suffers it to operate to the damage of another. There is certainly no difference in moral responsibility, there should be none in legal responsibility. Of course, if the omission of the act or the nonfeasance does not in- volve a non-performance of duty, then the responsibility would not attach. If it does involve a non-performance of duty to such an extent that the agent is liable to^ the principal for the damages en- suing from his neglect, there is no^ hardship in compelling him to respond directly to the injured party. Such practise is less circuitous than that which necessitates first the suing of the master by the party injured, and then a suit by the master against the servant to recoup the damages. But the honorable judge who wrote the opinion in Delaney v. Rochereau, supra, was mistaken in his announcement that the civil law endorsed the distinction upon which his decision was based, for, while the doctrine is stated in the Justinian Code that no man could usually be made liable for a mere omission to act, it was otherwise when the omission to act involved a negligence of duty. Domat argues that, as an agent is at libert)'' not to accept the order and power which are given him, so he is bound, if he does accept the order, to execute it; and, if he failed to do so, he will be liable for the damages which shall have occasioned by his not acting. Under the Aquiliian law the distinction between omission and commission was not recognized under such circumstances. In the ninth digest of the Aquiliian law the following instance is given : One servant lights a fire, and leaves it to another. The latter neglects to check the fire at the proper time and place, and a villa is burned. The first servant was charged with no negligence, because it was his duty to light the fire, and it is argued, very sensibly, that, if the second could not be charged because not putting out the fire was simply an omission of duty, there would be a miscarriage of justice. Is the keeper of a drawbridge, whose duty it is to close the draw after a ship passes through, and who negligently fails to perform that duty, allowing a car loaded with passengers to be hurled into the river below, to escape responsibility to the injured, while the man who attempts to operate it, but, in so attempting operates it negligently and unskil- fully, is held responsible? Instances in the ordinary transactions of 432 LIABILITY TO THIRD PARTY. life might be multiplied almost without end, the very statement of which shows conclusively the fallacy of the rule. The attempt by the courts to maintain this indistinguishable dis- tinction has led to many inconsistent decisions. Thus, in Albro v. Jaquith, 4 Gray 99, 64 Am. Dec. 56, the plaintiff was not allowed to recover of the superintendent of a canal company for damages caused by negligence in the management of the apparatus used for the pur- pose of generating, containing, and burning inflammable gas ; the su- perintendent being the agent of the company, and being charged with carelessly, negligently, and unskilfully managing the business. It was held that he was not charged with any direct act of misfeasance, but only with nonfeasance, and that there was no redress, because, as the court said, the obligation to be faithful and diligent was founded in an express contract with his principal. As we have be- fore indicated, this would be equally true of the acts of commission or misfeasance in his stewardship. But in Bell v. Josselyn, 3 Gray 309, 63 Am. Dec. 741, — also a Massachusetts case, and decided the same year, — it was held that an agent who negligently directed water to be admitted to a water pipe was liable to a third person because such action was misfeasance. In that case it was not claimed that the admission of water to the pipe was negligent or wrongful, but the negligent act or omission was in allowing the pipe to become ob- structed,— certainly as pure an omission or nonfeasance as could be conceived of. But the court, in order to maintain the distinction which it deemed itself bound by precedent to do, virtually obliterated the distinction by the following circuitous reasoning: "The defend- ant's omission to examine the state of the pipes in the house before causing the water to be let on was a nonfeasance. But if he had not caused the water to be let on, that nonfeasance would not have injured the plaintiff. If he had examined the pipes, and left them in a proper condition, and then caused the letting on of the water, there would have been neither nonfeasance nor misfeasance. As the facts are, the nonfeasance caused the act done to be a misfeasance. But from which did the plaintiff' suffer ? Clearly, from the act done, which was not less a misfeasance by reason of it being preceded by a nonfeasance." Much more cogent and judicial is the reasoning of the same court many years after in Osborne v. Morgan, 130 Mass. 102, 39 Am. Rep. 437, where an agent of premises was held responsi- ble to a third person for suffering to remain suspended from a room a tackle block, which fell upon and injured the plaintiff. The court, speaking through Chief Justice Gray, said : "The principal reason assigned was that no misfeasance or positive act of wrong was charged, and that for nonfeasance,^which was merely negligence in the performance of a duty arising from some express or implied con- tract with his principal or employer, — an agent or servant was re- ;t is resj' . an : :;'.h i .t nont ■ - nf ver does an} ^ipal, bvv •e only ;^ 'H feasance. ... jn tlif- <■ <<■■-"■ -lable car ■. to thir-j i' : and he car - in a ci or son \vl !Out proper - mt it is mist: s still another class o! rect doctrine, viz., thau >.^ nfeasance does not rest i' devolving- up^.>n Olc Rs: not t-^ )^n^ s Baird v. Shipman, a case decided in '^ N. E. 384,- ^ - ^ '^^ -' ^- uch hat an aeenr "ufeasdi; liold what seems ''on, whether for r I at all, but is a c iierson to so usl; liia: •pr he is in the oper- if the prop- itaining- this 1890, and reported in 132 n. St. Rep, 504. There it irol of a house belong-in,^ se in a (K the thi- that does not seem 1 feature ; but the ''^^^ lounced. Said ti excused by the n oivf ,^nce acti tr work. L'jLing it, S' ..-,' be the na; ne V. Morgan. . ''t is Mayer v. 1 '1. 620, 28 L 111 itlcM'n.t'- rl: attempt b)' .1 has led t< ;i, 4 GrcH 1 ', .u\cr of the .-- by neglisrence ' pose ( perin- was no: ^•Vasance. I!-, h \V.O"k his prit '.lid, ilie very statement !7e rule. not allowed to ■-.uia. • :■! 'viges caused t of tlu :\)T the pur- as ; the su- larged with .i liic business, act of misfeasani.>. o redress, because, ....A and diligent wa'- xipal. As we have t ^ the acts of commiissiuii ; Cell V. Josselyn, 3 Gray ii^ctts case, and decided the lo neglig"ently directed water . ^ hable to a third person l>ecause r o-i-<^ i> v r< not claimed that the ■ wrongful, but the a.-^ Ill aiiuwiug UH.- pipe to become ob- an omission or nonfeasance as could be to maintain the distinction it to do, virtually obliterated us reasoning: "The defer ' 't Tripes in the house befoi I nee. But if he had r .1 "ce would not ha es, and left them - of the water, the ■feasance. A" V.-.- le to be a misff" :u]\\ from the ai: 'y.g precc .t;- of thr \^o Mass. ■,.'- . held respoti- ' [ from a ; !t. Th( rincipal rea.'-' ; A. of wrong w,i K-rely negligence i: ress or implied con .)r servant w^s 1 IT TORTS. 433 sponsible 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 misfeas- ance 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 and 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 to not 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 dangerous condition, exempt himself from lia- bility 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." There is still another class of cases which hold what seems to us to be the correct doctrine, viz., that the obligation, whether for misfeas- ance or nonfeasance does not rest in contract at all, but is a common- law obligation devolving upon every responsible person to so use that which he controls as not to injure another, whether he is in the oper- ation of his own property as principal or in the operation of the prop- erty of another as agent. One of the leading cases maintaining this view is Baird v. Shipman, a case decided in 1890, and reported in 132 111. 16, 23 N. E. 384, 7 L. R. A. 128, 22 Am. St. Rep. 504. There it was held that an agent who has complete control of a house belonging to an absent principal, and who lets the house in a dangerous condi- tion, promising to repair it, is responsible to the third person injured by an accident caused by want of such repair. There is nothing to dis- tinguish this case from the case at bar excepting the promise to re- pair, and that does not seem to have been deemed by the court an important feature ; but the case was decided upon the laroad principle above announced. Said the court: "It is not his contract with the principal which exposes him to or protects him from liability to third persons, but his common-law obligation to so use that which he con- trols as not to injure another. That obligation is neither increased nor diminished by his entrance upon the duties of agency, nor can its breach be excused by the plea, that his principal is chargeable. * * * 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 act," — citing approvingly Osborne v. Morgan, supra. To the same effect is Mayer v. Thompson-Hutchison Building Co., 104 Ala. 611, 16 South. 620, 28 L. R. A. 433, 53 Am. St. Rep. 88. The court there, after noticing the doctrine that the agent can be held liable to third persons for misfeasance only, says : "It is difficult 28 — Reinhard Cases. 434 LIABILITY TO THIRD PARTY. to apply the same principles which g-overn in matters of contract between an agent and third persons to the torts of an agent which inflict injury on third persons, whether they be of misfeasance or non- feasance, or to give sound reason why a person who, while acting as principal, would be individually liable to third persons for an omis- sion of duty, becomes exempt from liability for the same omission of duty because he was acting as servant or agent. The tort is none the less a tort to the third person whether suffered from one acting as principal or agent, and his rights ought to be the same against the one whose neglect of duty has caused the injury.'' In that case Baird v. Shipman, supra, is cited approvingly, wnth the remark that the rule laid down in that case is the better rule. So, in Ellis v. Mc- Naughton, 76 Mich. 237, 42 N. W. 11 13, 15 Am. St. 308, it was held that an agent who had entire control of premises was liable for injuries resulting from the removal of a walk on the premises by one of his employees, contrary to his orders, if, after such removal, he knew of the dangerous condition of the premises, and allowed them to remain in that condition. It would seem that, if there is anything in definitions, this was a pure nonfeasance, and yet the court, in trying to harmonize the distinction with the general rule announced and above discussed, said, speaking of the agent's duty in relation to the work : "Every day it was so permitted to remain, when the defendant had the entire control of it, and the authority^ without question, to replace it, was a wrong and a misfeasance." It is also said that, irrespective of his principal, the agent was bound while doing the work to so use the premises, including the sidewalk, as not to injure others. Misfeasance, said the court, may involve the omission to do something which ought to be done, — as when an agent engaged in the performance of his undertaking omits to do something which it is his duty to do under the circumstances, as when he does not exercise that degree of care which due regard for the rights of others required. To the same effect, Campbell v. Portland Sugar Co., 62 Me. 552, 16 Am. Rep. 503. In Lottman v. Barnett, 62 Mo-. 159, it was held that one having the general charge and superintendence of the construction of a building was responsible for the killing of a workman caused by the falling of a wall, which resulted from the giving way of supports on which the wall rested under the working of a jackscrew, although the appliance was put to work under the immediate direction of another person, employed by the owner of the building, and while the architect was absent, where it appeared that the manager of the jackscrew was employed under the advice of the architect, and subject to his discretion, and that he knew and approved of the method adopted for effecting the raising. Whether the wall fell because the plan for raising it was a bad one, or because the supports were inadequate, it was held that in either case the disaster was attributable to positive misfeasance for negli- gence in a work which the architect had undertaken, but in which )sed upon iuic, s •i<^;! .i , led. are as much misfeasance as an active misdoin: 1 here, in Ludior armo'""" rties for acts e or noii^ :.i^ actini' I tor an c c omission oi tort is none one wh<' hel- anri sup ^or the ki;!,' • ■ .;;lted froi: .11 that case Baird remark tlii' i'i> . in EUi v'U. St. 30b, u \v i^ eniises was liable for the premises by ;er such removal, ises, and allowed ' that, if there is Lice, and yet the the general rule the agent's duty ' r:d to reiv '' ' he autbi^' .libfeasance.' ; .'. 'he agent -e the ])' iicluding the -feasance. ,.., ii;e court, may which ought to be done, — as ir'i iiinuance of his undertaki.. - duty to do under the circu' ' • ■ of care which due regai.l snnie eft'ect, Campbell v. 503. In Lottin . ^ ihe general c- li" was respoi' ' '' 1 wall, Wini.u e wall rested O' :.,v .al'-e ■ case the 'li' ger' for raising it was iiiUei'takcii, but i;i vvhici. TORTS. 435 he failed to exhibit the care and skill which the law imposed upon him. To make this distinction more shadowy, if possible, Mr. Mechem, in his work on Agency (§ 572), after announcing- the general rule, says: "Some confusion has crept into certain cases from a failure to observe clearly the distinction between nonfeas- ance and misfeasance. As has been said, the agent is not liable to strangers for injuries sustained by them because he did not under- take the performance of some duty which he owed to his principal, and imposed upon him by his relation, which is nonfeasance. Mis- feasance may involve, also, to some extent, the idea of not do- ing, — as where the agent, while engaged in the performance of his undertaking, does not do something which it was his duty to do un- der the circumstances ; does not take that precaution — does not exer- cise that care — which a due regard for the rights of others requires. All this is not doing, but it is not the not doing of that which is im- posed upon the agent merely by virtue of his relation, but of that which is imposed upon him by law as a responsible individual in com- mon with all other members of society. It is the same not-doing which constitutes actionable negligence in any relation." The author then quotes approvingly the language of Chief Justice Gray in Osborne v. Morgan, supra, and of Judge Metcalf in Bell v. Josselyn, supra, so that it will be seen that, even according to Mr. Mechem, a lack of care and a lack of precaution, when once the duty is assumed, are as much misfeasance as an active misdoing. The ir- resistible logic of his statement is that the agent is responsible to third persons v;hen he is negligent in the performance of the duties which he undertakes, whether such act be termed misfeasance or non- feasance. The rule is thus announced in i Am. i& Eng. Ency. Law (ist ed.), p. 407: "Where a principal engages an agent to do a cer- tain work, and to take entire control over it, while the principal does not interfere, but leaves it entirely with the agent, the agent, and not the principal, will be liable to third parties for injuries or damages sustained by the negligence or unskilful manner in which the work is done." The question of whether or not the principal is liable is not under discussion here. In the same section, and in another para- graph, that author announces that an agent is, in general, not liable to third parties for acts of negligence for non-performance of duty ; that as such he is only responsible to the principal, and the principal to the third party. So that in the mind of the author the distinction must have been established between an agent that did not have com- plete or entire control and one who did. There is no other way of harmonizing the two statements. This is, in effect, the same rule enunciated by Mr. Wharton in his work on Agency (§ 538). Under the announcement that "wherever there is liberty there is liability," it is said : "Hence, to strike at the general principle that lies at the basis of the adjudication we have just noticed, wherever the agent is 436 LIABILITY TO THIRD PARTY. at liberty to choose his own mode of action, then he is distinctively liable in damages, if by such mode of action he invades another's rights," The same doctrine is announced in § 537, where it is said : "Where an agent, who has general liberty of action, injures a third person, there the agent is personally liable for negligent as well as for malicious acts." The author here discriminates between an agent and a servant, holding that a servant is a part of the machinery by which the master works, and there is no emancipation or liberty of action ; but that this reasoning does not apply to agents who have com- plete control, and therefore perfect liberty of action. Doubt- less much of the mist and fog which have enveloped the decisions on this subject are due to confusing the omission of an act which one is not bound to perform with the imperfect performance of an act to which he is bound. In other words, whoever undertakes a duty, and is clothed with authority to perform that duty, is respon- sible to the party injured for negligent imperfection in the discharge of such duty, on the broad doctrine announced above that he is obli- gated in transacting business to so transact it that his neighbor shall not thereby be injured; but there is no liability for the non-perform- ance of a duty not assumed, or not independently controlled. But for neither the non-performance nor malperformance of a positive duty can one escape responsibility, whether that duty is imposed by contract or by general obligation, for under any and all circum- stances it is the essence of negligence to omit to do something which ought to be done. While some detached expressions of Mr. Whar- ton have been quoted in support of the distinction contended for by the respondent, that author puts the question at rest in his work on the Law of Negligence (2d ed., § 535), where he says: "The mere fact that I am the agent, in doing the injurious act, of another, does not relieve me from liability to third persons for hurt this act in- flicts on them. Judge Story, indeed, tells us that for the omissions of the agent the principal alone is liable, while for misfeasances the agent is also liable ; but this distinction, as has been already shown, can no longer be sustained. The true doctrine is that when an agent is employed to work on a particular thing, and has surrendered the thing in question into the principal's hands, then the agent ceases to be liable to third persons for hurt received by them from such thing, though the hurt is remotely due to the agent's negligence; the rea- son being that the casual relation between the agent and the person hurt is broken by the interposition of the principal as a distinct cen- ter of legal responsibilities and duties. But wherever there is no such interruption of casual connection,— in other words, wherever the agent's negligence directly injures a stranger, the agent having liberty of action in respect to the injury, — then such stranger can d\ recover from the agent damages for the injury." There is some contention in respondent's brief on the alleged bar- 437 . le-? of the allegations of e alle^a- nple to show the- . ,, in repair; tb'' ' 'Jete control of ' ontrol and mav n i-ov. I to repair, and 1 -reed to L.*, to alJege the agr.. up':>n it afier it had )UT conclusion is thai list the respondent. The ju. •uctions to the lower court to uvt.iuic -p., u<-. ee Frorer v. Baker, 137 111. App. 588. LIABIL: RIV. it liberty to choose h\y '" ' in darn? '' " The - 'VVr:ere an agei*!;, person, tliere the for malicious ;•. The author noiding that master wo*-^- but that I plete con less miir! on t}:' t. ■■ the 1. ■ fact tr not reliev flicts on li . of the agent y agent is a^ c.'in no Ini ■ie to third i '■ 'be hurt i- that the i . .. i .- . .• . uken by . ter of leg-al respo.i such the a; liberty oi a>-tiOii in n. rerny---- f--;. ;■! the agen; le conte: lion, then he is distinctively action be invades another's J in § 537t where it is said: • ty of ac ' jres a third ble for as well as f the - _ icrvant, by which the = "■' '^ "^ .'i^oerty of action; its who have com- .\ of action. Doubt- enveloped the decisions 14 Lht omission of an act which > ith the imperfect performance in other words, whoever undertakes , v-v:, <. r .^rr,-,rrn fViat duty, is rcspon- iou in the discharge that he is obli- i neighbor shall ;;r the non-perform- ]y controlled. But /jormance of a positive ■ '.J, ..- _. that duty is imposed by ion, for under any and all circum- gence to omit to do something which detached expressions of Mr. Whar- ■f of the distinction contended for by s the question at rest in his work on § 535)' where he says: "The mere' rg the injurious act, of another, does :■ third persons for hurt this act in- i/>f.ri f.-ii; MS that for the omissions ale for misfeasances tlie already shown, ; when an agent .as surrendered the the agent ceases to ■om such thing, ijrence; the rea- . and the person ii'-z piiinp.-i! as a distinct cen- ies. But wherever there is no ry, — then such stranger can • injury." nt's brief on the alleged bar- TORTS. 437 renness of the allegations of the complaint, but we think the allega- tions were ample to show that the respondent was authorized to keep the building in repair ; that it undertook that office or duty, and was in complete control of the work. It is alleged that it was in ab- solute control and management, with full power, authority, and direction to repair, and to allege that it agreed to do so would only be to allege the agreement to do the duty which the law imposed upon it after it had assumed the control and management which is alleged. Our conclusion is that the complaint states a cause of action against the respondent. The judgment is therefore reversed, with instructions to the lower court to overrule the demurrer to the com- plaint.^ ^ See Frorer v. Baker, 137 111. App. 588. f CHAPTER X. UNDISCLOSED PRINCIPAL. Section 1. — Liability of Third Party to Principal. SCHAEFER et al. v. HENKEL. 1878. Court of Appeals of New York. 75 N. Y. 378. Miller, J. — The plaintiffs were not parties to the lease upon which this action was brought. It was not signed by them. Their names did not appear in it, and there was nothing in the lease to show that they had anything to do with or any interest in the de- mised premises or the execution of the lease, or that it was exe- cuted in their behalf. It was made by one Brown, as lessor, who is described therein, and who signed it, as agent; but it is not stated in the lease for whom he acted. The covenants are all between "J- Romaine Brown, agent, the party of the first part," and the defendant, as party of the second part ; and it is not made to appear that the defendant had any knowledge or intimation whatever that Brown was acting on the behalf of the plaintiff's or for their benefit. For whom Brown was agent was not made known to the defendant, and it only appears by parol proof upon the trial that Brown was authorized orally by the plaintiffs to make a demise of the premises described in the lease. The signature of Brown is as agent, and his seal is attached to the instrument, and the same is also signed and sealed by the defendant. The plaintiff's, without any assignment of Brown's interest under the lease, bring this action to recover the rent unpaid, upon the ground that Brown merely acted as their agent by their authority, and that they are the actual parties in in- terest. The question to be determined is whether the actual owners of the lease, which is in the nature of a deed inter partes, which was not and does not on its face show that it was executed by them, but which does show an execution by a third person, claiming to act as agent without disclosing the name of his principal, and which con- tains covenants between the parties actually signing and sealing the same, can maintain an action upon it for the rent reserved therein, 438 I t39 the person sar^e. describing' him- 1 party of tli' "r ...act, and acted n, ems to be quite action aled instrument ■'''■ '■'■" name of a perse: rson or a st- ; ui : the same. iv it consid state tlui' ..xecuted that the seai the se: A ho designates himsei. .. ...^.at, and i. . . - that the former only is the real party who o 1 on the same. He alone enters into the covenauus aiiu ny failure to fulfil, and he onlv can prosecute the other named in the indenture - v, and an action wil' half of or against any pei is not a party to the ' or who does not lawfully rcpiesent or occupy the place of party. It is unnecessary to review all the decisions bearing ! the question, as in a very recent case the principle discussed - een considered by this court, and the whole subject, as well as -decisions relating to the same, deliberately and carefully re- •vd. See Briggs v. Partridge (64 N. Y. 357). In the case , an action was brought to recover purchase-money unT>aid upon ■tract for the sale ar :'.e of lands. The c tliat the plaintiffs ei ■ ^> : n aj-."ceii!'inl i'l '.'urd, who was actmg ui ■eritied. Th. ' a prui' ully. Tl .t the plaint ... for and imd^. ...., . the first payment to 1» "'.:? transaction, ed to show ' ! the pi The - anient, on pi .1 .,(i,-,_ f,. Section 1. — Li»i' i Party to Principal. u; HENKEL. thai li. Browi: For w: and it . authorized described iii m ,,,< seal is attached to i ■ ■ •' by the (J • 's interc reiu unpaid, U; agent by their terest. The questi- ,,f ,1,,. i^ .^>^ which :s not 01 wiiuiu i.iof ^ shoT" agent without tains cover same, can s were iie lease upi ' ^ . i)y them. Their le in the lease to '•'^st in the de- jt it was exe- :.e Brown, as lessor, who is ._. .:, ..:, agent; but it is not stated 1. The covenants are all between • party of the first part," and the (1 part; and it is not made to appear wiedge ■ lion whatever that of the I' r for their benefit. . < not made known to the defendant, i;f ,; mm: 1!k- +rial that Brown was se of the premises cM!^ ■,. ! agent, and his i nt. and ' so signed and -■:•-•' uent of . .cr the ; as their ties in in- the actual owners ...... . .; partes, whic^ ^^ -^ it it was executed by the ' rd person, claiminr; " . > principal, and • .l!y signing :p the rent rt LIABILITY THIRD PARTY TO PRINCIPAL. 439 even although the person who executed the same, describing him- self "agent and party of the first part," had oral authority to enter into the contract, and acted as the owner's agent in the transaction. The rule seems to be quite well established that in general an action upon a sealed instrument of this description must be brought by and in the name of a person who is a party to such instrument, and that a third person or a stranger to the instrument cannot maintain an action upon the same. The question presented has been the sub- ject of frequent consideration in the courts, and I think it is estab- lished in this state that where it distinctly appears from the instru- ment executed that the seal affixed is the seal of the person subscrib- ing, who designates himself as agent, and not the seal of the prin- cipal, that the former only is the real party who can maintain an action on the same. He alone enters into the covenants and is liable for any failure to fulfil, and he only can prosecute the other party. He is named in the indenture as a party, and an action will not lie on behalf of or against any person who is not a party to the instru- ment, or who does not lawfully represent or occupy the place of such party. It is unnecessary to review all the decisions bearing upon the question, as in a very recent case the principle discussed has been considered by this court, and the whole subject, as well as the decisions relating to the same, deliberately and carefully re- viewed. See Briggs v. Partridge (64 N. Y. 357). In the case cited, an action was brought to recover purchase-money unpaid upon a contract for the sale and purchase of lands. The complaint al- leged that the plaintiffs entered into an agreement in writing with one Hurlburd, who was acting under the authority of the defend- ants, whereby the plaintiffs sold and the defendants through Hurl- burd bought a certain described piece of land, for a price named, which price the defendants, through their agent, Hurlburd, agreed to pay, as specified. The agreement was in writing, but did not show that Partridge was a principal party, and was signed and sealed by Hurlburd individually. The name of Partridge did not appear in the instrument, but the plaintiffs offered to prove that Hurlburd was acting solely for and under the direction of Partridge, who made or caused the first payment to be made as Partridge's agent or trustee in the transaction, and that his authority was oral. Proof was also offered to show that Hurlburd was constituted such agent by parol ; and that the plaintiffs did not know that Partridge was the real principal. The complaint was dismissed, and it was held by this court that a contract of this description under seal could not be enforced as the simple contract of another not mentioned in or a party to the instrument, on proof that the vendee named had oral authority from such other to enter into the contract, and acted as agent in the transaction ; at least, in the absence of proof of some act of ratification on the part of the undisclosed principal. The opin- ion of Andrews, J., in the case cited, fully covers the question now 440 UNDISCLOSED PRINCIPAL. presented ; and it appears to be unnecessary to review or examine the prior cases which have a bearing upon the subject. Unless some distinction of a vital character exists between that case and the one now to b€ determined, the former must be regarded as decisive of the case at bar. The claim of the learned counsel for the appellant, that as the contract in case of a lease is not required to be under seal, it may be regarded as a simple contract, upon which the principal may sue or be sued in his own name, and the seal may be rejected as surplusage, is also considered in the opinion in the case cited ; and without en- dorsing the correctness of the cases relied upon, it is remarked that these are cases which hold this doctrine ; "but the principal's inter- est in the contract appears upon its face, and he has received the benefit of performance by the other party, and has ratified and con- firmed it by acts in pais." It is therefore settled law that in order to take a case out of the general rule, where the contract is one which is valid without a seal, and the seal is therefore of no account, it must appear that the contract was really made on behalf of the principal, from the instrument, and that the party derived benefit from and ac- cepted and confirmed it by acts on his part. Within this rule it re- mains to be considered whether the case at bar differs from that cited. An attempted distinction is sought to be maintained, for the reason that, in the case cited, Hurlburd, the agent, did not enter into the agreement to sell as agent, while here Brown signs as agents which it is claimed is notice of the capacity in which he contracts. This, we think, is not sufficient ; and to establish any real distinction it should appear for whom he was agent, and that the parties claim- ing were his principals. The plaintiffs not being named in the lease, and it not appearing that they had any interest therein, there is no more ground for claiming that Brown was their agent than that he was the agent of some stranger. The use of the word agent has but little significance of itself, and as the principals are not named, can- not be regarded as applying more to one person than to another. It did not take away from BrOwn's obligation, because he is named as agent. The covenants are between the parties who are only named in the instrument and no other parties. Any other interpre- tation would be a contravention of its obvious import. As was said in the case cited : "We find no authority for the proposition that a contract under seal may be turned into the simple contract of a party 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." To render the principal liable, where there is a contract by deed, made by an attorney or agent, it must be made in the name of the principal. (Huntington v. Knox, 7 Cush. 374, cited and approved in Briggs v. Partridge, supra.) It would be going very far to hold that a distinction so trifling and unimportant would authorize a disregard of the decision cited, and stablish an n the on< ct-n settled there! ■ir:jr UNIIiili iMA'IES Ci^• i 1 9- ''.'"■• Georgi.\ "Oil t/ic !-A".tj''icui oi vn.i'.'ijcij aiLt' (iate, I proriiirc \o -^ ier oi Asher Ayres, agt., $419.30, to T. B. Goff, or at 1: ^t Georg-ia ; value received. If not paid at maturity, to lytuir ,/i . the rate of 12 per cent, discount per annum. D. H. HOLLEMAN." (L. S.) . t demurred to the petition, which set out a copy of the liich alleg-ed that the defendant gzve the same to Asher : of the plaintiff. Defendant also filed a plea, in the form )f ,, ... . . the jurisdiction, denying t'' •■ ^'<^'' T^acific Guano <"'. ^-^^ -.r, ,. •;.i;I '.Vii on '-_• ju- t\-r'Xi'<. ^ -: -^ that f i> equities between th Miflict, for th O'iun : -al to bring- the '■^o to sue. To f Justice Mar- mt in that case ;ht was main- .V ihat the plaintiff ..^d on when such idant, is elementary. i\ offer such evidence held necessri' !e cited. ijcd bv the '1 of the on it." il « Wat. Bn. LIABILITY THIRD PARTY TO PRINCIPAL. 443 "$422.83. Boston, May 31, 1869. Borrowed and received of J. T. Phelps, agent, four hundred and twenty-two and eighty-three one-hundredths dollars, which I prom- ise to pay on demand, with interest." At the trial in the superior court, before Brigham, C. J., without a jury, the following facts were found : The plaintiff is a corporation in the state of Vermont, having, in 1867, an office in Boston, where J. T. Phelps acted as its general agent in the business of life insurance. On December 31, 1867, the plaintiff issued to the defendant a policy of insurance on his life for $5,000 for the term of ten years, for an annual premium of $323.25. The defendant procured this policy to be issued through Phelps, and received it from him, to whom the defendant then paid the first year's premium. The note declared on was made and given to Phelps in consideration of premiums of insurance due from the de- fendant to the plaintiff, as provided by the policy issued to the de- fendant as aforesaid, and for interest on such premiums. The pre- miums then due, and interest, amounted on. May 31, 1869, to $422.83 ; and Phelps had no property or interest therein, excepting in his character of general agent of the plaintiff in Boston. Upon these facts, the judge ruled that the plaintiff could maintain this action, and found for the plaintiff'. The defendant excepted to this ruling. Devens, J. — The note upon which this suit is brought is not in the usual form of promissory notes, but recites that, having borrowed and received the sum of $422.83 of J. T. Phelps, agent, the defendant promises to pay the same on demand, with interest. The facts found, the case having been tried by the superior court without a jury, showed that the whole consideration of this agreement moved from the plaintiff corporation, it having made a policy of insurance upon the life of the defendant, and this paper having been given by him for the balance of unpaid premiums, in which Phelps had no interest. It was a note to the possession of which the plaintiff was entitled, the whole beneficial interest being in it, and which it also had a right to collect. West Boylston Manufacturing Co. v. Searle. 15 Pick. 225, 230. But it is objected by the defendant that the note could only be collected by a suit in the name of Phelps. As a general rule, where a written agreement not under seal is made on behalf of a principal not named, and the consideration has moved from him^ it is competent for the principal to bring an action in his own name on such agreement thus made for his benefit ; and, on the other hand, even when the agent may himself be liable upon a written contract, because he has failed fully to disclose that he has made it on behalf 01 another, the principal on whose behalf he has made it may also be liable. Huntington v. Knox, 7 Cush. 371, 374, and other cases cited in Exchange Bank v. Rice, 107 Mass. 37, 43. 444 UNDISCLOSED PRINCIPAL. The instrument here sued, although not negotiable, is properly designated as a promissory note, it being an absolute promise to pay money at all events ; but, from its nature, an action upon it must necessarily be confined to those who are actually parties to it, either really or nominally, and it is clearly not intended to make any con- tract which was capable of transfer or assignment. On notes similar in their general character to this, it has been held that the action might be maintained in the name of the principal from whom the consideration moved. In Garland v. Reynolds, 20 Maine 45, upon a note not negotiable for $100, payable to Enoch Huntington, treas- urer of the committee of surplus revenue, it was held that the town for whose money the note was given might sue in its own name. In the present case, the principal is entitled to the benefit of the note, and the defendant can sustain no injury by suit in the name of the principal, as he would have the benefit of any payments made bv him to the nominal payee, while acting as agent. Nor do we think that the St. of 3 & 4 Anne, c. 9, § i, upon which the modem doctrine of promissory notes is founded, which declares that the money mentioned in such note shall be construed to be due and payable to such person to whom the same is made payable, should be held to prevent the principal from maintaining an action in his own name on a note not negotiable, where the nominal prom- isee is an agent. Nor, even if it may be sued by the principal in his own name, does it present the case of a note payable to A. or to B., as claimed by the defendant, which has been held bad as a promissory note. Osgood v. Pearsons, 4 Gray 455. Here, there is in fact but one payee, Phelps being merely the representative of the plaintifif. Exceptions overruled.^ BALDWIN V. BANK OF NEWBURY. 1863. Supreme Court of the United States, i Wall. 234. The bank of Newbury, a corporation, at the time of the suit and now, established in Vermont, brought an action of assumpsit in the circuit court of the United States for the Massachusetts district against Baldwin, upon a promissory note made by him in Massachu- setts, where he resided. The following is a copy of the note. It was unendorsed : "$3,500. Boston, Dec. 9, 1853. Five months after date I promise to pay to the order of O. C. ' Accord: Garland v. Reynolds, 20 Me. 45. Contra: Chaplin v. Canada, 8 Conn. 285. Compare Clark v. Reed, 20 Miss. 554. Hale. Esq., LI.v XTY TO ' 445 3. -five hundred dollars, ; J- nrsviant fo the laws ■ t either ■ erts ithin the state o le Bank of Nev - in MassachusL his dis- '11, and did not s^ lis point the case, as a^eed on by tiie pi. is agreed that O. C. Hale was in fact the cr. Newbury at ''■ ' ^ e of the making of said -..../lv,, uc. v.-jf:;^ ?e to pay to the order of O. LIABILITY THIRD PARTY TO PRINCIPAL. 445 Hale, Esq., cashier, thirty-five hundred dollars, payable at either bank in Boston, value received. J. W. Baldwin." After making the note, and pursuant to the laws of Massachusetts existing- prior to making it, Baldwin obtained a certificate of dis- charge from his debts, embracing by its terms all contracts to be per- formed within the state of Massachusetts after the passage of said laws. The Bank of Newbury took no part in these proceedings in insolvency in Massachusetts by which Baldwin obtained his dis- charge. This discharge he pleaded in bar of the action on this note. He also pleaded the general issue, and under that plea objected that the note declared on was not competent evidence to support the declaration, and did not sustain the cause of action therein set forth. On this point the case, as agreed on by the parties, was as follows, viz. : "It is agreed that O. C. Hale was in fact the cashier of the Bank of Newbury at the time of the making of said note, and in case the court would admit such evidence after objection by the de- fendant, and not otherwise, and not waiving his objection to the same as incompetent, the defendant admits that said Hale mentioned in said note, in taking said note was acting as the cashier of and agent for the plaintiff corporation. If upon the foregoing facts the plaintiff has made out a legal cause of action in his favor, and the defendant's discharge, etc., is ineffectual as a bar of said action, the defendant is to be defaulted ; otherwise the plaintiff is to become non-suit." Two points thus arose and were argued : 1. Whether the contract, being by a citizen of Massachusetts, was discharged by the proceedings in Massachusetts, even though to be perfonned in that state — Hale being a citizen, and the Bank of New- bury being a corporation of Vermont, a different state. 2. Whether, if this discharge was not a bar, parol evidence was admissible to show that "O. C. Hale, Esq.," described in the note as "Cashier," simply, was cashier of the Bank of Newbury, the plaintiff in the suit, and that in taking the note, he acted as the cashier and agent of the corporation. The court below ruled that the discharge pleaded was no bar, and also that the plaintiff had made out a cause of action, and gave judg- ment accordingly. On error here the same two questions arose. Mr. Justice Clifford, after stating the case, delivered the opinion of the court : I. Two questions are presented for decision, but the first is the same as that just decided in the preceding case, and for the reasons there given must be determined in the same way. Contrary to what was held in the case of Scribner et al. v. Fisher, 2 Gray 43, we hold that the certificate of discharge in the case was no bar to the action, because the debt was due to a citizen of another state. Such was the rule laid down in Ogden v. Saunders, 12 Wheaton 279; and we also 446 UNDISCLOSED PRINCIPAL. hold that the circumstance that the contract was to be performed in the state where the discharge was obtained does not take the case out of the operation of that rule. 2. Agreed statement also shows that O. C. Hale was in fact the cashier of the Bank of Newbury at the time the defendant executed the note, but the defendant insists, as he insisted in the court below, that parol evidence was not admissible to prove that the person therein named as payee in taking the note acted as cashier and agent of the corporation. He admits that the plaintiff can prove those Ij facts, if admissible, but denies that parol evidence is admissible for \\ that purpose, which is the principal question on this branch of the case. Counsel very properly admit that such evidence would be ad- missible in suits upon ordinary simple contracts, but the argument is that a different rule prevails where the suit is upon a promissory note or bill of exchange. Suit in such cases, it is said, can onl}' be maintained in the name of the person therein named as payee, and consequently that the plaintiff bank cannot be treated as such with- out explanatory evidence, and that parol evidence is not admissible to furnish any such explanation. Suppose the rule were so, still it could not benefit the defendant in this case, because it is uncondi- tionally admitted that O. C. Hale was in fact cashier of the plaintiff bank at the time of the making of the said note. Undeniably the note must be considered in connection with that admitted fact, and when so considered it brings the case directly within the rule laid down in the case of Commercial Bank v. French, 21 Pickering 486, and the several cases there cited upon the same subject. In that case the court say the principle is that the promise should be under- stood according to the intention of the parties. If in truth it be an undertaking to the corporation whether a right or a wrong name is inserted, or whether the name of the corporation or some of its offi- cers be used, it should be declared on and treated as a promise to the corporation, and as a general rule it may be said that where enough appears to show that the parties intended to execute the instrument in the name of the principal, the form of the words is immaterial, because as between the original parties their intention should govern. But it is not necessary to place the decision upon that ground alone, as we are all of the opinion that even if the facts set forth in the agreed statement are all to be regarded merely as an oifer of proof, subject to the objections of the defendant, still the case must be de- cided in the same way. Regarded in that point of view, the question then is whether the evidence offered was admissible. Promise, as appears by the terms of the note, was to O. C. Hale, cashier, and the question is, whether parol evidence is admissible to show that he was cashier of tlie plaintiff bank, and that in taking the note he acted as the cashier and agent of the corporation. Contract of the parties shows that he was cashier, and that the promise was to him in that character. Banking corporations necessarily act by some agent, and '(i to show 447 er, and have 1;. where that i he circv' ■It executed ■ >urt -below, tlie person .1 agent c those 'ble for L.:., :..!;. of the .e would be ad- , uut the argument upon a promissory can only be payee, and such vvith- admissible e so, still it is uncondi- the plaintiff c. L ndeniably t' admitted fact, : lin the rule laid Picl •rnnr 4 9''. HE 4 ith it be i; H viong name :•> 1 or some of its offi- ' c to the ^■nougb cute uie instrmnent "ids is immaterial , i should govern. ' ^round alnr-^ forth in ■ 'or of prooi, I'umt be de- Hud the .. that '"- )te he B' iraci <>t the pariu.^ was to him in that ^ome agent, and LIABILITY THIRD PARTY TO PRINCIPAL. 447 it is a matter of common knowledg"e that such institutions usually have an officer known as their cashier. In general he is the officer who superintends the books and transactions of the bank under the orders of the directors. His acts within the sphere of his duty are in behalf of the bank, and to that extent he is the agent of the corporation. Viewed in the light of these well-known facts, it is clear that evidence may be re- ceived to show that a note given to the cashier of a bank was in- tended as a promise to the corporation, and that such evidence has no tendency whatever to contradict the terms of the instrument. Where a check w^as drawn by a person who was a cashier of an in- corporated bank, and it appeared doubtful upon the face of the in- strument whether it was an official or private act, this court held, in the case of the Mechanics' Bank v. The Bank of Columbia, 5 Wheat. 326, that parol evidence was admissible to show that it was an official act. Signature of the promissor in that case had nothing appended to it to show that he had acted in an official character, and yet it was unhesitatingly held that parol evidence was admissible to show the real character of the transaction. Opinion in that case was given by Mr. Justice Johnson, and in disposing of the case he said, that it is by no means true, as was contended in argument, that the acts of agents derive their validity from professing on the face of them to have been done in the exercise of their agency. Rules of form, in certain cases, have been prescribed by law, and where that is so those rules must in general be followed, but in the diversified duties of a general agent, the liability of the principal depends upon the fact that the act was done in the exercise and within the limits of the powers delegated, and those povv'ers, says the learned judge, are nec- essarily inquirable into by the court and jury. Maker of the note in that case had signed his name without any addition to indicate his agency, which makes the case a stronger one than the one under con- sideration. Same rule as applied to ordinary simple contracts has since that time been fully adopted by this court. Examples of the kind are to be found in the case of the New Jersey Steam Navigation Company v. The Merchants' Bank. 6 How. 381, and in the more re- cent case of Ford v. Williams, 21 Hov/. 289, where the opinion was given by Mr. Justice Grier. In the latter case it is said that the con- tract of the agent is the contract of the principal, and he may sue or be sued thereon, though not named therein. Parol proof may be admitted to show the real nature of the transaction, and it is there held that the admission of such proof does not contradict the instru- ment, but only explains the transaction. Such evidence, says Baron Park, in Higgins v. Senior, 8 ]\Iee. & Wels. 844, does not deny that the contract binds those whom on its face it purports to bind, but shows that it also binds another by rea- son that the act of the agent is the act of the principal. Argument for the defendant is, that the doctrine of those cases can have no ap- 448 UNDISCLOSED PRINCIPAL. plication to the present case, because the suit is founded upon a promissory note, but the distinctions taken we think cannot be sus- tained under the state of facts disclosed in the agreed statement. Mr. Parsons says, if a bill or note is made payable to A. B., cashier, without any other designation, there is authority for saying that an action may be maintained upon it, either by the person therein named as payee or by the bank of which he is cashier, if the paper was ac- tually made and received on account of the bank ; and the authori- ties cited by the author fully sustain the position. Fairfield v. Adams, 16 Pick. 381 ; Shaw v. Stone, i Cush. 254; Barnaby v. New- combe, 9 Cush. 46; Wright v. Boyd, 3 Barb., S. C. 523. Among the cases cited by that author to show that the suit may be maintained by the bank, is that of the Watervliet Bank v. White, i Den. 608, which deserves to be specially considered. Note in that case was en- dorsed to R. Olcott, Esq., cashier, or order, and the suit was brought in the name of the plaintiff bank, of which the indorsee was the cashier. Objection was made that the suit could not be maintained in the name of the bank, but it appearing that the endorsement was really made for the benefit of the corporation, the court overruled the objection, and gave judgment for the plaintiff. Bayley v. Onon- daga Ins. Co., 6 Hill 476. Suggestion was made at the argument that the rule was different in Massachusetts, but we think not. On the contrary, the same rule is established there by repeated decisions, which have been followed in other states. Eastern R. R. Co. v. Benedict et al, 5 Gray 561 ; Folger v. Chase, 18 Pick. 63 ; Hartford Bank v. Barry, 17 Mass. 94; Long v. Colburn, 11 Mass. 97; Swan V. Park, I Fairf. z^4i ; Rutland & R. R. Co. v. Cole, 24 Vt. 33. Doubt cannot arise in this case that the person named in the note was in fact the cashier of the plaintiff bank, because the fact is admitted, and it is also admitted that the plaintiff can prove that in taking the note he acted as the cashier and the agent of the corporation, provided the evidence is legally admissible. Our conclusion is, that the evidence is admissible, and that the suit was properly brought in the name of the bank. The judgment of the circuit court is therefore affirmed with costs. Judgment accordingly.^ "■Accord: Rutland & Burlington R. R. Co. v. Cole, 24 Vt. 2Z; First Nat. Bank of Angelica v. Hale, 44 N. Y. 395; Carton v. Union City Nat. Bank, 34 Jvlich. 279. Contra: Rose v. Laffan, 2 Spears 356 (semble) ; U. S. Bank v. Lyman, 20 Vt. (U. S. Cir. Ct. D. Vt.) 666; Horah v. Long, 20 N. Car. 416. On page 417 of Horah v. Long, Gaston. J., said : "The word 'cashier' was but descriptive of the individual to whom the note was made payable." "Where an instrument is drawn or endorsed to a person as "cashier" or other fiscal officer of a bank or corporation, it is deemed prima facie to be pay- able to the bank or corporation of which he is such officer, and may be ne- gotiated by either the endorsement of the bank or corporation, or the endorse- ment of the officer." Negotiable Instruments Law, § 42. LIABILI •■^TNCIPAL. 449 185S. Supreme Court of the How. 2%y. Grier, J. — The single quesi sion in this asc is, whether the principal "^ written antract made by his ag^ent ;. :,closing iie name of the principal. It is not necessary to tli •i frauds, that the writing Mi'la of these contracts i; _ 11 done. If a party is mformed that the ]: . )..aling is merely the agent for another and j... he agent personally on his own credit, he will not i '; to charge the principal; but when he deals wnu .^i •ut any disclosure of the fact of his agency, he may eleci nc airer-discovered principal as the person with whom he contract. The contract of the agent is the contract of the principal, and he .lay sue or be sued thereon, though not named therein ; and notwith- "" ling the rule of law that an agreement reduced to writing may .e contradicted or varied by parol, it is well settled that the !pal may show that the agent who made the contract in his own - was acting for him. This proof does not contradict the writ- t only explains the transaction. But the agent, who binds him- \vill not be allowed to contradict the writing by proving that le was contracting only as agent, while the same evidence liiittted to charge the princin: 1 e) does not deny that t': IV'.- it purports to bind ; brt ^^ m that the act of the <■ ins V. Senior, 9 Mee^ \^ icli evidence inds those e array of cases ant s conclusively that th'.- ngland and many of • >' Steam Navigation Cc u ^ as. ib. cit.) The judgment of the coun re de novo awarded. '^ Bank, Co. v.'V' 6 H< was 448 UNDISCLOSED 1 the present ■1 V note, but the inder the state c .Sir. i arsons says, if . without any other • action may be n as payee or by ■ tually made and re ties cited by the Adams, i6 Pick. 38 combe, 9 Cush. .-^^ cases cited by t' by the bank, is which deserves > dorsed to R. Olcutt, Esq in the name of the :>'':i' cashier. Objectiof! case, because t^ distinctions tak- )f facts disclose. note is ! ' n. there 1 upon Barry, and it the nor provide v., that the e brought in ^ is therefor' shier, at an ^la named ■ .:r was ac- accouni ; and the author. lily sust ion. Fairfield v ^'. Stone. . Barnaby v. New- . Boyd, " '",. Among- the .1 show i- be maintained ' ,1 Den. 608, r case was en- , ca- t was brought ntiP . .. )rsee was the not be maintained ■ endorsement was e court overruled Bayley v. Onon- e at the argument iiut we think not. On by repeated decisions, Eastern R. R. Co. v. ..c.., 18 Pick. 63; Hartford Colburn, 11 Mass. 97; Swan ". Co. V. Cole, 24 Vt. 33. Doubt son named in the note was in cause the fact is admitted, :, can prove that in taking and the agent of the corporation, 't'imissible. Our conclusion is, d that the suit was properly iie judgment of the circuit court rnient ac. 279, . Rose V. L;. - (ir. Ct. D Long, G ■ by cn''ii:r ihs; .;■•.■ ihe officer." Nes '. a; First. JNiat. City Nat. Bank, :-. Bank v. Lyman, 20 - \\6. On page 417 ; but descriptive i to a person as "cashier" deemed ^>riina fn'i? to be pi; s such o!' ifiay be r or rorpu'- • tie endor-^ ; .\2. I LIABILITY THIRD PARTY TO PRINCIPAL. 449 FORD V. WILLIAMS. 1858. Supreme Court of the United States. 21 How. 287. Grier, J. — The single question presented for our decision in this case is, whether the principal can maintain an action on a written contract made by his agent in his own name, without disclosing the name of the principal. It is not necessary to the validity of a contract, under the statute of frauds, that the writing disclose the principal. In the brief memo- randa of these contracts usually made by brokers and factors, it is seldom done. If a party is informed that the person with whom he is dealing is merely the agent for another and prefers to deal with the agent personally on his own credit, he will not be allowed after- wards to charge the principal ; but when he deals with the agent, without any disclosure of the fact of his agency, he may elect to treat the after-discovered principal as the person with whom he contracted. The contract of the agent is the contract of the principal, and he may sue or be sued thereon, though not named therein ; and notwith- standing the rule of law that an agreement reduced to writing may not be contradicted or varied by parol, it is well settled that the principal may show that the agent who made the contract in his own name was acting for him. This proof does not contradict the writ- ing ; it only explains the transaction. But the agent, who binds him- self, will not be allowed to contradict the writing by proving that he was contracting only as agent, while the same evidence will be admitted to charge the principal. "Such evidence (says Baron Parke) does not deny that the contract binds those whom on its face it purports to bind ; but shows that it also binds another, by rea- son that the act of the agent is the act of the principal." (See Higgins V. Senior, 9 Meeson and Wilsby, 843.) The array of cases and treatises cited by the plaintiff's counsel shows conclusively that this question is settled, not only by the courts of England and many of the states, but by this court. (See New Jersey Steam Navigation Co. v. Merchant's Bank, 6 How. 381, et cas. ib. cit.) The judgment of the court below is therefore reversed, and a venire de novo awarded.^ ^Accord: Powell v. Wade, 109 Ala. 95. In Propeller Tow Boat Co. v. Western Union Tel. Co., 124 Ga. 478, it was held that an undisclosed principal may recover damages from a telegraph com- pany for loss incurred through an error in the transmission of a telegram sent for the principal by an agent in his own name. 29 — ReINHARD C.A.SES. 450 UNDISCLOSED PRINCIPAL. HUNTINGTON v. KNOX. 1871. Supreme Judicial Court of Massachusetts. 7 Cush. 371. Shaw, C. J. — This action is brought to recover the value of a quantity of hemlock bark, alleged to have been sold by the plaintiff to the defendant, at certain prices charged. The declaration was for goods sold and delivered, with the usual money counts. The case was submitted to a referee by a common rule of court, who made an award in favor of the plaintiff, subject to the opinion of the court on questions reserved, stating the facts in his report, on which the decision of those questions depends. The facts tended to show that the bark was the property of the plaintiff; that the contiact for the sale of it was made by her agent, George H. Huntington, by her authority ; that it was made in writing by the agent, in his own name, not stating his agency, or naming or referring to the plaintiff, or otherwise intimating, in the written contract, that any other person than the agent was inter- ested in the bark. Objection was made, before the referee, to the admission of parol evidence, and to the right of the plaintiff* to maintain the action in her own name. The referee decided both points in favor of the plaintiff, holding that the action could be maintained by the princi- pal and owner of the property, subject to any set-off, or other equit- able defence, which the buyer might have, if the action were brought by the agent. The court are of opinion, that this decision was correct upon both points. Indeed they resolve themselves substantially into one ; for prima facie, and looking only at the paper itself, the property is sold by the agent, on credit; and in the absence of all other proof, a promise of payment to the seller would be implied by law ; and if that presumption of fact can be controverted, so as to raise a promise to the principal by implication, it must be by evidence aliunde, proving the agency and property in the principal. It is now well settled by authorities, that when the property of one is sold by another, as agent, if the principal give notice to the purchaser, before payment, to pay to himself, and not to the agent, the purchaser is bound to pay the principal, subject to any equities of the purchaser against the agent. When 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 there- fore, if made by an agent or attorney, 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. But a different rule, and a far more liberal doctrine, prevails in regard to a written contract net under seal. In the case of Higgins ;LHviJ FAi. ^51 ees. & Welsl nvn as a general propo- "-•---'-• - both of th- - • '-'-t- cted as ^ ii.e contract ol :- ' ' ■ i- iie one hand to. ?■ 1: principals ; and > o be in writin.:' iiie distinction !•: r,; '"^ who has coiiu ..._., .i, .. .:n.l ihority of a principal, seeks m . on the ground V ' (ntracica n: The doctrine proct le ground tli,, may each be bound because b\ -e he has expressly !. ; and the pr a contract made by his for his account. 1 dasequi, 15 East, 62; Ma.^... -. Atkinson, 2 Mees. & \. . Trueman v. Loder, 11 Ad. & EI. 589; Taintor v. Prendej ■ ^^ Hill 72 ; Edwards v. Golding, 20 Verm. 30. It is analogous ordinary case of a dormant partner. He is not named or d to in the contract; yet as the contract is shown in fact to de for his benerit, and by his authority, he is liable, on the other hand, where the contract is made for the benefit not named, though in writing, the latter may sue on the con- jointly with others, or alone, according to the interest. Gar- Handley, 4 B. & C. 664 ; Sadler v. Leigh, 4 Campb. 195 ; Cop- Walker, 7 Taunt. 237 ; Story on Agency, § 410. The rights "ties of a principal, upon a witten '• •it, do not depenH w:-:'--^ th'.' {■^■•' -^f t' .ent itsei , and 2, \^ ire necessarily inquir ik k of Columbia, 5 Wi... ' we 'think this doctrine cited in the ac' 14, was a case a\ i /a a Cv^ntract of e case of the \. H the ground that, in ar. '-•^'^ but the promisee cai^ made by a factor, t' .s not brought <" • receipt is a wr' ' ';mt, of 1 to the v-t it is ;d]5Ci.o?E) 1 8: :ACiAL 7 Cusl bllAW, ... .,- the value of a quantit\^ of hemic rlie plaintiff to the defendin' aration was for goods sol iUnts. The • ■')£ court, who the opinion of CllC COUl i 11 his report, on which V T!:. w that tiie bark property of the ■ ■::,, for the sale of \l .;!e by her agent, by her authorit" t was made in ui his own •■ '^ -- ■ his agency, or ■ > the plaint i irimating, in the •jfent was inter- uiaae, before the mission of parol cbe right of the . ain the action in : referee dec" {>omts in favor of the ''^' action Cv. M .i^ .naintained by the princi- jrty, subject to any set-off, or other equit- - Duyer might have, if the action were brought 1 - n was correct upon both poiri. ihstantially into one; for p^'in:. ■• at the paper itself, the property is sold L,, .nd in the absence of all other proof, a promis' -eller would be implied by law; and if that p m be controverted, so as' to raise a promise ; implication, it must be by evidence ■le, prov • 'ty in the principal. s now . th?.t "xhen the property of ve notice to the ot to the agent, '■ to any equities )n technical grounds, i jn it; and there- oe made in the 00 a party, because iiic prii' he is nc. But a dift'erent rul-. ral doctrine, prevails in .f tt; LIABILITY THIRD PARTY TO PRINCIPAL. 45 1 V. Senior, 8 Mees. & Welsh. 834, it is laid down as a general propo- sition, that it is competent to show that one or both of the contract- ing parties were agents for other persons, and acted as such agents in making the contract of sale, so as to give the benefit of the con- tract, on the one hand to, and charge with liability on the other, the un-named principals ; and this whether the agreement be or be not required to be in writing, by the statute of frauds. But the court mark the distinction broadly between such a case and a case where an agent, who has contracted in his own name, for the benefit, and by the authority of a principal, seeks to discharge himself from liability, on the ground that he contracted in the capacity of an agent. The doctrine proceeds on the ground that the principal and agent may each be bound ; the agent, because by his contract and promise he has expressly bound himself; and the principal, because it was a contract made by his authority for his account. Paterson V. Gandasequi, 15 East, 62; Magee v. Atkinson, 2 Mees. & Welsh. 440; Trueman v. Loder, 11 Ad. & El. 589; Taintor v. Prender- gast, 3 Hill 72 ; Edwards v. Golding, 20 Verm. 30. It is analogous to the ordinary case of a dormant partner. He is not named or alluded to in the contract ; yet as the contract is shown in fact to be made for his benefit, and by his authority, he is liable. So, on the other hand, where the contract is made for the benefit of one not named, though in writing, the latter may sue on the con- tract, jointly with others, or alone, according to the interest. Gar- rett V. Handley, 4 B. & C. 664; Sadler v. Leigh, 4 Campb. 195 ; Cop- pin V. Walker, 7 Taunt. 237; Story on Agency, § 410. The rights and liabilities of a principal, upon a written instrument executed by his agent, do not depend upon the fact of the agency appearing on the instrument itself, but upon the facts; i, that the act is done in the exercise, and 2, within the limits, of the powers delegated ; and these are necessarily inquirable into by evidence. Mechanics' Bank V. Bank of Columbia, 5 Wheat. 326. And we think this doctrine is not controverted by the authority of any of the cases cited in the defendant's argument. Hastings v. Lovering, 2 Pick. 214, was a case where the suit was brought against an agent, on a contract of warranty upon a sale made in his own name. The case of the United States v. Parmele, Paine 252, was decided on the ground that, in an action on a written executory promise, none but the promisee can sue. The court admit that, on a sale of goods made by a factor, the principal may sue. This action is not brought on any written promise made by the defendant; the receipt is a written acknowledgement, given by the plaintiff to the defendant, of part payment for the bark, and it expresses the terms upon which the sale had been made. The de- fendant, by accepting it, admits the sale anc its terms ; but the law raises the promise of payment. And this is by implication, prima facie, a promise to the agent ; yet it is only prima facie, and may be 452 UNDISCLOSED PRINCIPAL. controlled by parol evidence that the contract of sale was for the sale of property belonging to the plaintiff, and sold by her authority to the defendant, by the agency of the person with whom the de- fendant contracted. We are all of opinion that the provisions of Rev. Sts. C. 28, § 201, do not apply to the sale of the bark, as made in this case. Judgment on award for the plaintiff.^ ELKINS V. BOSTON and MAINE RAILROAD. 1849. Supreme Court of Judication of New Hampshire. 19 N. H. 337. Assumpsit. — The declaration alleged that on the twenty-first of April, 1847, the defendants were common carriers of goods for hire from Andover, Mass., to Exeter ; that the plaintiff delivered to them an overcoat to be carried from Andover to Exeter, and delivered to the plaintiff for a reasonable reward to be paid therefor, in con- sideration of which the defendants received the coat and undertook to transport and deliver it accordingly, which they have neglected and refused to do. At the trial upon the general issue it appeared in evidence that the overcoat belonging to the plaintiff, whose name is Charles D. Elkins, was rolled up in a bundle with another overcoat, belonging to Jonathan Elkins, and a label put upon the bundle with this ad- dress upon it : "Jo'^^than Elkins, Exeter, N. H." The bundle was left by Jonathan Elkins in the common room of the depot at An- dover, and the depot master was requested by him to send the bun- dle by the next passenger train to Exeter, which he said he would do. The defendants objected that the evidence did not support the declaration, but varied materially therefrom ; but the court ruled it to be sufficient. The jury returned a verdict for the plaintiff, which the defendants moved to set aside. Gilchrist, C. J. — The only question in the case is whether the evidence supports the declaration. It is alleged that the plaintiff delivered to the defendants an overcoat, to be carried from An- dover to Exeter, and delivered to the plaintiff. It appeared that two overcoats were rolled up in a bundle, one of which belonged to the plaintiff and the other belonged to Jonathan Elkins ; that the bundle '^ In Darrow v. Home Produce Co., 57 Fed. 463, a written contract was exe- cuted by two agents in their own names without disclosing their principals. It was held that an action could be maintained by one undisclosed principal against the other. I LIA -153 > as directed to Jonathan T t. The only question properly rais' 'se facts the plain! i ft' may maintain :-ase of Weed v. " -'id, 534, cited by th: . ra- ed that the rail; to ! the plaintitis a ;. ... . ..^ ':d mk bills, but that they carel trunk a; he second count alle-r-^i ■^" — rarry cu - s contents. The evi iaintiff's raveling, directed ill. - -. arrival at the place unks was lost, cont he had retained for 1 to one Martin. It was said by Cowen, J., that the laterial. "The contract, as set forth, was to carry tl loney of the plaintiffs. The proof is that the trunk b tftin, a stranger, nor was it shown that the plaintiffs hau ;/; ction with it. If the trunk were Barnes' (the clerk) the vari- svould be the same, and so I should think if he had hired or ved it of Martin for his own use." * * * "The proof is at of a contract with the plaintiffs to carry the money only. The ation, then, fails in describing correctly a special executory ict, wherein great exactness is always demanded. Where 'claration is on a promise to do several things, and only one ved, this is a variance. * * * The whole contract in the t bar was made ostensibly \v' " s. If in lee ■ can be turned in favor of tl -ts, it must ■ Mr ownership of the articles en to h can be no pretence that the t) ,irnii<'^- of Barnes, in which the pla •, would be comprehend'"' !S far the decision is not •f variance was distin iirned out not to be > permitted to amend n. But the learned on whether Barnes > 1 bailee, having him expenses, says, "It i. ' e can enure not arise in ns worthy of nsc the coar 1 of Jonathan r -■ re- , . I' the plaintiff a ..rial hat part: ■ the plaintiff -session 45- UNDISCLOSFX' rontrolled by parol evidence that sale of property belonging to the pia.v to the defendant, by the agency of t). fendant contracted. We are all of opinion that the pr § 20I, do not Tudcmeiit i 'as for the r authority ..jm the de- Sts. C. 28, his case. ELK RAILROAD. 1849. i':j :\. a. o.\ Mew Hampshire. ration al' \ the twenty-first of forn ■- r^: of goods for hire . 1 elivered to them i ,Ml(ji;V(.-r H' ind delivered to reward to ■ here for, in con- >>.oat and undertook Lhey have neglected Irt dover, and 11. die by the. ne; The (■ declarati' be suffici The jut}- . ni<^veH to «<'i 10 the ., . , . - Exeter, . . vTCoats were r piaintifT and the • 'In Darr ■■ - ti cuted bj' Tt was h. , . against the oti: , , ., it appeared in evidence that plaintifif, whose name is Charles D. aidle with another overcoat, belonging x'l put upon the bundle with this ad- ins, Exeter, N. H." The bundle was ■ c^mmnn room of the depot at An- [ly him to send the bun- iiicli he said he would do. iie evidence did not support the --v.. fron^ : i>i.it the court ruled it to I If piaiiiMii, which the defendants whether the the plaintiff .1 from An- ■red that two i'nged to the L licit the bundle LIABILITY THIRD PARTY TO PRINCIPAL. 453 was directed to Jonathan Elkins, and left by him at the depot. The only question properly raised by the case is whether upon these facts the plaintiff may maintain an action against the defendants. In the case of Weed v. The Saratoga and Schenectady Railroad, 19 Wend. 534, cited by the counsel for the defendants, the declara- tion alleged that the railroad company promised the plaintiffs to carry for the plaintiffs a trunk containing certain goods, etc., and bank bills, but that they carelessly lost the trunk and its contents. The second count alleged an undertaking to carry the trunk and its contents. The evidence showed that the plaintiff's clerk, who was traveling, directed his baggage to be put into the proper car, but on his arrival at the place of his destination, he found that one of his trunks was lost, containing $285 belonging to the plaintiffs, which he had retained for his traveling expenses. The trunk be- longed to one Martin. It was said by Cowen, J., that the variance was material. "The contract, as set forth, was to carry the trunk and money of the plaintiffs. The proof is that the trunk belonged to Martin, a stranger, nor was it shown that the plaintiffs had any connection with it. If the trunk were Barnes' (the clerk) the vari- ance would be the same, and so I should think if he had hired or borrowed it of Martin for his own use." * * * "The proof is at most of a contract with the plaintiffs to carry the money only. The declaration, then, fails in describing correctly a special executory contract, wherein great exactness is always demanded. Where the declaration is on a promise to do several things, and only one is proved, this is a variance. * * * The whole contract in the case at bar was made ostensibly with Barnes. If in legal construc- tion it can be turned in favor of the plaintiffs, it must be in respect to their ownership of the articles undertaken to be conveyed, and there can be no pretence that the trunk of a stranger, Martin, or the trunk of Barnes, in which the plaintiffs had leave to deposit their money, would be comprehended within the principle." Thus far the decision is not an authority for the defendants. The question of variance was distinctly raised and decided, and although it finally turned out not to be very material, inasmuch as the plain- tiffs were permitted to amend, by striking out the trunk from the declaration. But the learned judge goes farther, and after raising the question whether Barnes was not more than a mere agent, and was not a bailee, having himself an interest in the money for his traveling expenses, says, "It is doubtful, at least, whether a promise to carry for a bailee can enure to the benefit of the bailor," although that question did not arise in the case. Upon this question there are several decisions worthy of consideration. In the present case the coat, which is the subject of this action, being in the possession of Jonathan Elkins, the latter must be re- garded as the bailee, and the plaintiff as the bailor. It is immaterial for what particular purpose the plaintiff's coat was in the possession 454 UNDISCLOSED PRINCIPAL. of Jonathan Elkins. The purpose probably was that the latter might cause it to be forwarded to the plaintiff. In such a case it is clear that the bailee has such a continuing interest in the goods, until their arrival at the place of destination, as to entitle him to sue the car- rier in case they are lost or damaged on their passage. Thus, in the case of Freeman v. Birch, i Nev. & Man. 420, which was an action against a carrier for negligence, it appeared that the plaintiff, a laundress, residing at Hammersmith, was in the habit of sending linen to and from London by the defendant's cart, which traveled from Chiswick to London. A basket of linen belonging to one Spinks was sent by the defendant's cart, and on its way to London part of its contents were either lost or stolen. Spinks did not pay the carriage of the linen. It was objected on the part of the de- fendant that the present action was misconceived, and that the ac- tion should have been brought by the owner of the linen. But the objection was overruled and a verdict was found for the plaintiff. A motion was made for a new trial, but refused by the court of Queen's Bench on the ground that under the circumstances the bailee retained a special property in the goods sufficient to support the action. The property in articles bailed is for some purposes in the bailee and for some in the bailor. The right of action must partake of the same properties, and must so continue until it is finally fixed and determined by one or the other party appropriating it to him- self. The decision in Freeman v. Birch, although it clearly estab- lishes the right of a bailee to sue, does not necessarily exclude the bailor from bringing an action, if he chooses to anticipate the bailee in so doing. The rule in such cases is stated by Parke, B., to be that either the bailor or the bailee may sue, and whichever first obtains damages, it is a full satisfaction. Nichols v. Bastard, 2 Cro. Mees. & Ros. 660. The principle appears to be well settled, that if it is not expressed that an agent contracts in behalf of another, and the name of the principal is not disclosed by him, a suit may be maintained in the name of the principal. In the present case, Jonathan Elkins was clearly the agent of the plaintiff, and the name of the plaintiff was not disclosed by him. This principle is recognized in the case of Sims V. Bond, 5 B. & Ad. 389, where Lord Denman says, "It is a well-established rule of law, that where a contract, not under seal, is made with an agent in his own name, for an undisclosed princi- pal, either the agent or the principal may sue upon it ; the defendant, in the latter case, being entitled to be placed in the same situation at the time of the disclosure of the real principal, as if the agent had been the contracting party." In the case of Higgins v. Senior, 8 Mees. & Wells 834, it was held that the suit might be maintained on the contract, either in the name of the principal or of the agent, and that, too, although required to be in writing, by the statute of frauds. 4 IIRD i'.\' :55 ■2 Wenc 1-iill -^2. ..,...,• r-rted ' '11. V. Thr. ■vere then n; a. It was ;. w.c ent was ma :ompan\ ■' 'Citation - -^ /{-en tho ract Hi . yers at . Ltie coiiLiatt directl" ii' agreed with E. ^ . ..., ., _. . without the plai ^r the c. o, without the fu;: i.:;,i > r..i.-.> c-ij-, a^.eed with j_.', .i v-,, :', it was held that the plaintitT misfht maintain an action t D, for not deV ' ".y bringing the , the plaintiff af. , D, by C, and not afterwards recover ironi B. Sanderson v. Lamberton, 6 129. ■n the principles above stated, our opinion is, that the plaintiff laintain this action. ,anent on the verdict.^ '. ARDNER & ^ EXE< 1844. SuPREil IS an action ,^, r proceeds of sixty-n .1 caused to be so. •" ; in addition ti • was tried on ti verdict was reii : !t 20-100 dollars, dai -ly. the defendants excc UNDISCLOSED PRi aathaii Elkins. The purpose ]- 'i !•> !„■ iVirwarded to the plait ' h a continuing ' ,uii\ (i at u!c pjice of destination, rier in case they arc lost or damr:i the case of Freeman v. F" action against a carrier fr- a laundress, r linen to and r from Chiswick to Londo- Spinks was sent by the d- part of its contents were the carriage of tl ' fendant that the . " r might * lear that imtil their iie the ear- Thus, in was an •;laintiff. Th that an a,.. "'■i'i'Mpal 1.. of the latter case, ... w., time of the been the contract' Mees. & Wen ^' the contract, .: that, too, although rcc, ■longing to one way to London iaks did not pay part of the de- -Uid that the ac- i-iie linen. But the .'I for the plaintiff. A ;efused by the court of r the circumstances the ods sufficient to support irposes in the bailee ol action must partake of ''".v.vs until it is finally fixed •opriating it to him- igh it clearly estab- 1 necessarily exclude the :^ cuo.>-^cs to anticipate the bailee es is stated by Parke, B., to be \y sue, and whichever first Nichols V. Bastard, 2 Cro. \-r\\ sett ■ ' f it is not expressed d the name of the '• maintained in the inathan Elkins was "' the plaintiff was ' ill the case of says, "It is under seal, princi- endant, le situation • ^ agent had '. Senior, 8 ■ y sue upnn ' be placed i -'1 principa; . ise of i suit migiii. I.U- uiaintained on rincipal or of the agent, and -ing, by the statute of frauds. m LIABILITY THIRD PARTY TO PRINCIPAL. 455 Beebe v. Robert, 12 Wend. 413 ; Taintor v. Prendergast, 3 Hill 72. The same principle was adopted by the supreme court of the United States, in the memorable case of the loss of the steamer Lexington, in Long Island Sound. In the case of The New Jersey Steam Navi- gation Co. V. The Merchants Bank, 6 Howard 344, the bank had de- livered to Harnden, an express agent, a large amount of specie for transportation, by whom it was delivered to the Steam Navigation Co., who were then running the Lexington between New York and Stonington. It was held that, notwithstanding the contract of affreightment was made by Harnden with the company personally for the transportation of the specie, it was, in contemplation of law, a contract between the bank and the company, and although Harn- den made the contract in his own name, and without disclosing the name of his employers at the time, the bank might maintain a suit upon the contract directly against the company. So where the plaintiff agreed with B, a common carrier, for the carriage of goods, and B, without the plaintiff''s directions, agreed for the carriage with C, who, without the plaintiff's knowledge, agreed with D, a third carrier, it was held that the plaintiff might maintain an action against D, for not delivering the goods, and that by bringing the action, the plaintiff affirmed the contract made with D, by C, and could not afterwards recover from B. Sanderson v. Lamberton, 6 Binn. 129. Upon the principles above stated, our opinion is, that the plaintiff may maintain this action. Judgment on the verdict.^ GARDNER & SAGER v. ALLEN'S EXECUTOR. 1844. Supreme Court of Alabama. 6 Ala. 187. This was an action of assumpsit, at the suit of the defendant in error against the plaintiff's. The declaration contains a number of counts, among which were several seeking to charge the defendants for the proceeds of sixty-nine bales of cotton, which they had ship- ped to, and caused to be sold in Liverpool for the plaintiffs' account and benefit ; in addition to which, the common counts are added. The cause was tried on the pleas of non-assumpsit, payment and set-off. A verdict was returned for the plaintiffs for five hundred and ninety-eight 20-100 dollars, damages, and a judgment was ren- dered accordingly. On the trial, the defendants excepted to the ruling of the judge in his charge to the jury. It was proved that the plaintiff shipped to Messrs. Labuzan & Pollard, at Mobile, sixty-nine bales of cotton. ^ See Talcott v. Wabash Railroad Co., 159 N. Y. 461. 456 UNDISCLOSED PRINCIPAL, The latter placed the cotton in the hands of the defendants to be shipped to Liverpool, and received an advance thereon. The ship- ment was made accordingly, and the cotton sold in Liverpool, yield- ing a sum sufficient to reimburse the defendants their advance, and upwards of five hundred dollars in addition. For this excess, still remaining in their hands, this action was brought. Messrs. Labuzan & Pollard were commission merchants, and received the plaintiff's cotton for sale or shipment. The defendants proposed to show that they were ignorant of the plaintiff's right to the cotton in ques- tion ; that they received it from Messrs. Labuzan & Pollard without the knowledge that it was not their property ; and that the latter were indebted to them in the sum of five hundred dollars, or there- abouts. In consequence of this indebtedness, they resisted a recov- ery by the plaintiff. The court, on motion of the plaintiff's coun- sel, rejected the evidence offered by the defendants, on the ground that it was inadmissible. Collier, C. J. — It has been often stated, as an acknowledged principle, if a factor sells goods in his own name, the purchaser, without a knowledge of any other person being a party to the con- tract, in the absence of collusion, is entitled to regard the debt as due to the factor, so as in an action brought by the principal, to set off a debt due from the factor to himself. (Paley's Agency, 326 to 35.) Mr. Justice Story, in his treatise on the Law of Agency, says, if the agent is the only known or supposed principal, the person dealing with him will be entitled to the same rights of set-off as if the agent were the true and only principal, (p. 432.) And in such case, the set-off is equally good, whether a suit be brought in the name of the principal, or of the factor or agent, for the price of the goods. (Id. 452; see also id. 417-8-9, and cases there cited.) In Mitchell v. Bristol & Powell (10 Wend. 492), the law is laid down in equivalent terms, and the court, after citing several English decisions, say, in these cases it is held, that it makes no difference whether the sale by the agent is under a del credere commission or not ; the reason of the law is the same in both cases. But it is needless to elaborate the point at greater length. The authorities cited very fully show that it is quite immaterial whether the principal or his agent is the plaintiff. If the latter sue, the defendant may avail himself of any set-off, which he has against the former ; or, if the former be the actor in the suit, the purchaser may set off a claim which he has against the latter, if he purchased under a just belief authorized by the facts of the case, that the agent was the real owner of the goods. (Story's Agency, 417-8.) And this seems to be the current or decision, both in England and the United States, without regard to the extended or restricted terms of the statutes of set-off. (Caines v. Brisban, 13 Johns. Rep. 9.) This being the law, it is clear, that the court should have per- mitted the defendants to show that they shipped the cotton on ac- LIABIUTY TH]I 457 t Messrs. Labuzr ranees as "11 induce them : ty. The •y of this evideri. -nsidered ;iry, under the d lion is an error, i ■ remanded.^ BAXTER AND -N. 1898. Supreme C Minn. 434 iiTCHELL^ J. — One Shea ihe knowlede;e of the del aiit, a commission merclr consignors, fruit and pro ■: time, he dealt on his own accouiiu lu tiie saaie kinu _ , The defendant was a dealer on his own account in i city, in the same kind of property. The plaintiffs were ens in the fruit and produce business at Nauvoo, 111., and had for > .... been in the habit of shipping such property to Shea as their agent, to be by him sold on their account, and to remit to them the pro- ceeds, less his commissions. For this purpose, in August, 1896, they slr.pped to him a consignment of fruit. Shea sold the fruit to" the fit-iendant on August 2i.=t. There ■.■--.:; no express agreement be tween Shea and the defendant credit,, but the price was not paid at the tim^ ' .ery of 'l"" +* ' torn of those in the trade i- ^ being ! t \vecn themselves onc' .' ulant had a settlemeni, v.-,; applied upon or of .Shea to the defendant, . debt had no sort of com: August 26th, Shea, beir.,^ benefit of his creditors, H< for tlie proceeds of their tor the same unless by app .'; Ruan v. Gi ' '-r-linr law tbui v. ..' ■ and onc drals w ;■ ■T,T- he jiiay ■-■ answer ; Si Co.'x 456 UNDISCLOSED PRI' The latter placed the cotton in the h: shipped to Liverpool, and received :■'" ment was made accordingly, and tb. sum sufficient to reimburse t!i lids of five hundred dollar^ ii reiriaining in their hands, this n ' & Pollard were cqmnussion m cotton for sale or shipment, that they were ignorant of *^^'' tion ; that they received it the knowledge that it " were indebted to tlien. abouts. In c^ ery hv the p. sel, i ice ortcr' efendants to be ^ he ship- l yield- ce, and s=, still d to show :,^ X ..Lon in ques- & Pollard without '1 that the latter •hilars, or there- " led a recov- ..iitiflf's coun- . on the ground no differ' commission But it is net tt a cla .. jUst bell . was the re., ■^:i'\ this seems t' the United State terms of the statutes 9.) This being the 1. mitted the defendants ! acknowledged , iiaiiK^:, the purchaser, •eing a party to the con- vd to regard the debt as :;::ht by the principal, to ' c-f. (Paley's Agency, . . ciitise on the Law of nqwn or supposed principal, •'"d to the same rights of mly principal, (p. 432.) i\ good, whether a suit be "■ of the factor or agent, for 417-8-9, and cases il (10 Wend. 492), id the court, after citing' ' is held, that it makes under a del credere " ne in both cases. r length. The rial whether er sue, the has against purchaser e purchased : . L,.ibe, that the ' v's Agency, 417-8.) t^t m England and 1 led or restricted ban, 13 Johns. Rep. ■;rt should have per- iipj)ed the cotton on LIABILITY THIRD PARTY TO PRIXCIPAL. 45/ count of Messrs. Labuzan & Pollard, under such circumstances as might well induce them to believe that it was their property. The sufficiency of this evidence was a question of fact to be considered by the jury, under the direction of the court; but being admissible, its rejection is an error, for which the judgment is reversed, and the cause remanded.^ BAXTER AND Others v. SHERMAN. 1898. Supreme Court of Minnesota. 73 Minn. 434. Mitchell, J. — One Shea was, to the knowledge of the defend- ant, a commission merchant or factor, who sold, on account of the consignors, fruit and produce consigned to him by others ; but, at the same time, he dealt on his own account in the same kind of prop- erty. The defendant was a dealer on his own account in the same city, in the same kind of property. The plaintiffs were engaged in the fruit and produce business at Nauvoo, 111., and had for years been in the habit of shipping such property to Shea as their agent, to be by him sold on their account, and to remit to them the pro- ceeds, less his commissions. For this purpose, in August, 1896, they shipped to him a consignment of fruit. Shea sold the fruit to the defendant on August 21 Ft. There was no express agreement be- tween Shea and the defendant for any credit, but the purchase price was not paid at the time of the delivery of the fruit, the cus- tom of those in the trade in Minneapolis being to settle accounts between themselves once a week. On August 22, Shea and de- fendant had a settlement, in which the price of the plaintiff's fruit was applied upon or offset against an individual debt due from Shea to the defendant, contracted on August i8th or 19th. This debt had no sort of connection with the sale of plaintiff's fruit. On August 26th, Shea, being insolvent, made an assignment for the benefit of his creditors. He has never accounted to the plaintiffs for the proceeds of their fruit, and defendant has never paid for the same unless by applying the price, as above stated, upon ^Accord: Ruan v. Gunn, jj Ga. 53. "It is familiar law that when a principal entrusts the possession of his goods with an agent, and one deals with the agent as the principal, without knowl- edge of the agency, he may set off any claim he has against the agent before he is undeceived in answer to the demand of the principal. The doctrine rests upon the ground that the principal who has permitted an agent to deal with his goods as his own must not only take the contract as the agent made it, but is virtually estopped from alleging that the agent is not the real plaintiff in his (the principal's) suit. The set-off must be pleaded just as if the suit were in the name of the apparent owner at the time of the sale, that is, the agent." Cockrill, C. J., in Quinn v. Sewell, 50 Ark. 380, 383. See Sellers & Co. v. ^lalone-Pilcher Co., 151 Ala. 426. 458 UNDISCLOSED PRINCIPAL. the debt which Shea owed him. Plaintiffs brought this action to recover the price of the fruit. As factors or commission merchants may seU in their own name the goods of their principals, we shall assume, although there is no express finding to that effect that Shea sold this fruit without disclosing the name of his principal or stating whether this property belonged to himself or to another. The evi- dence, as well as the finding, is to the effect that defendant knew that, while Shea sold fruit and produce on his own account, he was also engaged in the business of selling it as factor or agent for others who consigned it to him for sale on their account. There- fore, under the circumstances, a sale by Shea in his own name to the defendant was not the equivalent of a statement that he was selling on his own account. On the contrary, it amounted only to an as- surance that the fruit was either his own property or the property of some principal who had employed him to sell. With this knowl- edge of the equivocal relation of Shea to the property, and with actual knowledge that it had been shipped to Shea by somebody (for defendant himself took the fruit out of the car in which it had been transported from Nauvoo, and paid the railroad freight), the defendant, so far as appears, made no inquiry whatever of Shea or anyone else as to whose property it was, or whether Shea was acting for himself or for a principal. The court found that defendant had no knowledge or informa- tion of any claims of plaintiffs in or to the property until after the settlement with Shea. This may be, and probably is, technically and literally supported by the evidence, but, as will be seen hereafter, is wholly insufficient to entitle the defendant to offset his debt against Shea against plaintiff's' demand for the price of their prop- erty. It is not important that the purchaser from a factor did not know who the principal was if he knows, or is chargeable with notice, that the property belongs to a principal, and not to the factor. It is well settled by an almost unbroken line of authorities, from George v. Claggett, 7 Term R. 359, down, that if the owner of goods intrusts them to an agent with authority to sell in his own name, without disclosing the name of his principal, and the agent sells in his own name to one who knows nothing of any principal, but honestly believes that the agent is selling on his own account, he may set off any demand he may have on the agent against the de- mand for the goods made by the principal. This set-off need not exist at the time of the sale. It is sufficient if it arises before notice of the real ownership of the goods. As applied to factors, this rule might seem at first to be inconsistent with the equally well-settled doctrine, so much relied on by the plaintiff, that a factor or commis- sion merchant has no power to pledge his principal's goods for his own benefit ; that such an act is tortious and void as against the principal ; and that, too, without regard to the pledgee's ignorance of the fact that the factor was not the real owner of the property. 459 See Wric^.l : '> u on, ig C- settled; ;.n.i v,e apprehend ti- the tN^o :■ ihat a sale of the f ■ within the imp'J ' not. The rule ine of (^ iar prin: r by the fraud oi a ihno, iiic lofcs sh -- -T negligence enabled the third persv/' Ijut this rule should not be extended beyond pie upon which it is founded. ^' ■ ,.,> v.- .1 shield so as to make ever\ ; e right of a thir ' ;)le advantage oi ^ own name for aii i. .uyer for the price iie agent unless in m juct of the principal t^.. . .'.as selling on his own account. The rule of G- 'loes not obtain where the purchaser knows that tne ' equally well ■'•«' between ^^ of the •■^ile a , oon ^ he was induced by in fact believ'- i^i'^' ^ ,._ ^^^ , Clagett, ii-cnt is not fhe owner of the goods or when circumstances are brought to his ' -e which ought to have put him upon inquiry, and by in- g which he would have ascertained that the agent was not .ii<; owner. Whore the character of the selHng is equivocal, as in 'i- case, and, as was known to of selling sometimes on his - ':. it was incumbent on defeni set-off, to inquire in what c; oular tran.saction, and if d out, as it did, that he I not to be allowed the h ctendant had sufficient '■ uite as likely tliat Shea -■ " himself. This was oi ■.- J to Shea's authority to red to buy with Jf of a set-off. 'Uld have heen ' for another. ^er he was acting for hmiseit v declined to make the pv '■ qf entered into the transa had no honest or re: . owm-rshin of the p i'^mdant, Shea mt, arKi soir. : desired '^ ' Shea w the an ..Hi- lea, an liin .ndant could i>'" -lid, and i;t could ' - as iicc OI cncir iruit ov Without attemptuig which Shea owed hiiii. Dn: soi'i tius fruit ^ whi:iiier this p; 'lOi, CO. as wel'. knew that, he was 3U< for otl: fore, ir defend . on his suranc of th- A'- .lat i>n to hants we shall tb.at Shea ov stating The evi- defendant noiKc, lii = . It is well .- Georgfe v. goods iiiLti name, wilJioiit -lis ■: 1 n_i5 r-wt m. nj : do sion merchant has no owTi benefit ; that ?'!'" principal ; and that, ' ' t that the faci account. There- !'s own name to the ■m that he was selling "mted only to an as- ■•ly or the property -eii. With this knowl- le property, and witii by somebody A which it had ; freight), the .„tever of Shea whether Shea was \ ledge or inform i : or to "^ after the be, and .acally and nee, but, as vviil be seen hereafter, ti.r.' 'icfendant to offset his debt or the price of their pro' c- t-,.fii a factor did noi chargeable with '.!id not to the factor. e of authorities, from that if the owner of ' 'tv to sell in his own i^al, and the agent ■f :inv principal, .count, he ist the de- need not ^re notice . this nde ucipal s goods for his ! vfn'd as against the s ignorance the propert LIABILITY THIRD PARTY TO PRINCIPAL, 459 See Wright v. Solomon, 19 Cal. 64. But both rules are equally well settled; and we apprehend that the distinguishing feature between the two is that a sale of the principal's goods in the name of the factor is within the implied actual authority of the latter, while a pledge is not. The rule referred to in the case of sale rests upon the doctrine of equitable estoppel, and is merely an application of the familiar principle that, where one of two innocent persons must suffer by the fraud of a third, the loss should fall upon him whose act or negligence enabled the third person to commit the fraud. But this rule should not be extended beyond the reason or princi- ple upon which it is founded. It was never intended to be used as a shield so as to make every right of the real owner subordinate to the right of a third party, dealing with the agent, to gain every possible advantage of the transaction. Hence, where an agent sells in his own name for an undisclosed principal, and the principal sues the buyer for the price, the buyer cannot set off a debt due from the agent unless in making the purchase he was induced by the con- duct of the principal to believe, and did in fact believe, that the agent was selling on his own account. The rule of George v. Clagett, does not obtain where the purchaser knows that the agent is not the owner of the goods or when circumstances are brought to his knowledge which ought to have put him upon inquiry, and by in- vestigating which he would have ascertained that the agent was not the owner. Where the character of the selling is equivocal, as in this case, and, as was known to the defendant, Shea was in the habit of selling sometimes on his own account, and sometimes as an agent, it was incumbent on defendant, if he desired to avail himself of a set-off, to inquire in what character Shea was acting in that particular transaction, and if he chose to make no inquiry, and it turned out, as it did, that he bought of an undisclosed principal, he ought not to be allowed the benefit of any set-off. Defendant had sufficient information to advise him that it was quite as likely that Shea was acting as factor as that he was acting for himself. This was of itself enough to put him upon inquiry, not as to Shea's authority to sell, but as to his own right of set-off if he desired to buy with a view of covering his own debt or avail- ing himself of a set-off. Presumably, if he had inquired of Shea, he would have been informed that Shea was acting merely as an agent for another. Should Shea have refused to inform him whether he was acting for himself or for a principal, defendant could have declined to make the purchase. Knowing what he did, and having entered into the transaction without inquiry, defendant could have had no honest or reasonable belief one way or the other as to the ownership of the property ; and under these circumstances he can have no right, as against the demand of tlie plaintiffs, to in- sist on a set-off or upon the attempted application of the purchase price of their fruit on his claim against Shea, Without attempting 460 UNDISCLOSED PRINCIPAL. to cite or review the authorities on this subject, we merely refer to the notes to George v. Clagett, 2 Smith, Lead Cas. 1359, where most of the authorities, both American and English, are referred to; arid to Cooke v. Eshelby, L. R. 12 App. Cas. 271, where the sub- ject is fully discussed and all the English cases reviewed. Our con- clusion is that the findings of fact were not sufificient to justify the conclusions of law, and that the evidence would not have justified any findings which would have entitled the defendant to prevail. 2. The defendant was permitted, under the objection and excep- tion of the plaintiffs, to introduce evidence of a local custom in Minneapolis among those engaged in the fruit and produce busi- ness, such as Shea and defendant were engaged in, of running weekly accounts on cash sales, instead of paying spot cash on each transaction, and then making weekly payments and settlements, in which they allowed and offset against each other all bills accruing during the past week, and, in short, having a sort of weekly clear- ance between themselves, in which they balanced and offset all out- standing bills between themselves, without regard to whether such bills were due to or from them as factors or principals. This evi- dence was clearly immaterial and incompetent for any purpose. This so-called "custom" was an arrangement among the local deal- ers solely for their own convenience, which they acted on entirely in reliance upon the financial responsibility of each other. If, in the absence of any such custom, defendant would have no right to apply the price of plaintiff's fruit on the individual debt of Shea, the custom could give him no such right ; for the effect of such a custom would be to permit an agent to appropriate his principal's property to the payment of his own debt, which would be contrary to well-established principles of law as well as good morals. Therefore such custom would be void. Moreover, no evidence was introduced or offered that plaintiffs had any knowledge of the alleged custom ; and nothing is better settled than that a local custom, even if valid, is operative only in respect to those who are shown to have knowledge of it; and there can be no presumption that a stranger living in Illinois had any knowledge of a local custom in Minneapolis. It is doubtless true that, where the owner of prop- erty consigns it for sale to a factor, it is within the implied or ap- parent authority of the factor to conform to any general and uni- form custom of the place to which the property is consigned as to the terms or conditions of sale, whether the consignor knew of the custom or not ; but the custom here sought to be proved does not come within any such principle. Order reversed, and a new trial granted.^ ^Accord: Miller v. Lea, 35 Md. 396; Frazier v. Poindexter, 78 Ark. 241. "There can be no doubt of the correctness of the proposition, that where one deals with an agent, knowing of the agency, he cannot set off a claim due LUMLF 1861. Supreme G 11' WAS shown on the ery of the ale by Broa*^: thereto Broadhiirst & C under that style, was a i stock of ji;' I that the de hini irum time t of May, 1859, casks of ale; that Bro.- to defendant an order fo the 2d, 1859, Mr. Griffiir ' "ds of Bass ale. ex • ^tcml-v: i-,lij,;.' ■dhurst, on the thir ; presented his bii lO the defendant and was pa^u ; lliat after such pay r Broadhurst had absconded, the plaintiff called at d( e of business and told his clerk to tell defendant not 10 pay :adhurst, which was the first time .the defendant knew r.Vxi''.trk claimed the ale.. Defendant had judgment. Plaintiff appe. Cope, J., delivered the opinion ■■* '"^ ..»'-• p-,, u. ; . currinar. ' : action ' '. ,,t of Br ■ars that this ale bt ;i his order; but in ?f 1 rheir own account. Tht r person in connection ned of the interest of th' ari'j paid for it. The plrJ "" by him for its delivery . rights; but rst & Co., a' contract. The r d by a personal a other words, that the ale nec^- ' The def ei ' h, or incurnn.:;" any >n that the pa^niert whate\ ■ l^rht t- Ut due li. 4fw J.NKJS'. L^J^KJ.> to cite or review the to the notes to GeorP' most of the autho; - •■ Vrl to Cooke V. ;- fully discussed c!.i::on is that the f. conclusions of Ihva- any . findin ^ 2. The d. tion of tl Minne--;^^' ness, - wc' ■ v- whiCii i,'.!^\ aj. durinij the pa- ance \:f{\\ ' CX y.Lir-i.y.jil,. property t. vva^ 11 the ah' ^^ custom, c shown to that a str;; ;n Minnea}ioi: authorities on il^ • \' Clagett, 2 Sn :h America! anrl all the E! K^f fact ' ! the e\ troduce evi ^.ngaged in '•fendant vv. /■es, instc . ' ".g; week' I hem as rms or cono^ 11 or not; bu. - within any sucl i.;ied? L, we merely refer r.m. iT,$g, where ■e referred re the sub- Our con- iustify the , ve justified am to prevail. on and excep- a iocal custom in and produce busi- C-d in, of running •t cash on each settlements, in ' bills accruing ;" weekly clear- i offset all out- ■■ whether such ;ials. This evi- '■ jur any purpose. :ong the local deal- liicy acted on entirely of each other. If, in 'vould have no right to ■ \:[ uidividual debt of Shea, such right ; for the effect of such I agent to appropriate his principal's own debt, which would be contrary of law as well as good morals. ; be void. Moreover, no evidence ' any knowledge of -d than that a local only in respect to those who are ad there can be no presumption any knowledge of a local custom ■' ' - :, - tjie owner of prop- : the implied or ap- '-al and uni- Mgned as to new of the ^ ed does not ed, and a new trial ^ Accord. .\ii,..t N . X... .o "There can be no douhl of ter, 78 Ark. 241. .;itioti, that where :et off a claim due LIABILITY THIRD PARTY TO PRINCIPAL. 461 LUMLEY V. CORBETT. 1861. Supreme Court of California. i8 Cal. 494. It was shown on the trial that at the time of the sale and deliv- ery of the ale by Broadhurst & Co., and for some time anterior thereto Broadhurst & Co., or rather Broadhurst, doing- business under that style, was a jobber in Front street, in San Francisco, having a stock of goods in his store among which were casks of ale ; and that the defendant had been in the habit of buying from him from time to time, and paying him therefor ; that on the second of May, 1859, Broadhurst bargained and sold to defendant five casks of ale; that Broadhurst procured from plaintiff and g-ave to defendant an order for the delivery of the ale, as follows : "May the 2d, 1859, Mr. Griffing-, please deliver to Mr. Corbett five hogs- heads of Bass ale, ex Rapid. (Signed) George Lumley ; ''that Broadhurst, on the third of May, 1859, presented his bill for the ale to the defendant and was paid ; that after such payment and after Broadhurst had absconded, the plaintiff called at defendant's place of business and told his clerk to tell defendant not to pay Broadhurst, which was the first time the defendant knew plaintiff claimed the ale.. Defendant had judgment. Plaintiff appeals. Cope, J., delivered the opinion of the court. — Baldwin, J., con- curring. This is an action to recover the value of certain ale purchased by the defendant of Broadhurst & Co., merchants in San Francisco. It appears that this ale belonged to the plaintiff, and was delivered upon his order ; but in selling it, Broadhurst & Co. professed to act on their own account. The defendant had no knowledge of any other person in connection with the transaction, and was not in- formed of the interest of the plaintiff until he had received the ale and paid for it. The plaintiff seems to think that the order signed by him for its delivery was sufficient to put the defendant upon notice of his rights ; but the answer is that the order was procured by Broadhurst & Co., and delivered to the defendant in fulfillment of their contract. The inference could only have been, that it was procured by a personal arrangement between them and the plaintiff ; or, in other words, that they had purchased or otherwise obtained of him the ale necessary to meet their engagement with the de- fendant. The defendant could not have supposed that he was con- tracting with, or incurring any liability to the plaintiff, and we are of the opinion that the payment to Broadhurst & Co. was sufficient to discharge whatever liability he incurred. We can regard the case in no other light than that of agents of an undisclosed principal contracting in their own names ; and it is well settled that in such him from the agent against the debt due the principal." Baker, J., in Reulchler V. Hucke, 3 111. App. 144, 149. 462 UNDISCLOSED PRINCIPAL. cases, agents employed to sell may also receive payment. If, says Story, the payment is received by the agent, and the debtor has no notice of any claim by the principal, the latter will be bound thereby. (Story on Agency, § 430.) "Until the principal appears," said Lord Ellenborough, in Blackburn v. Scholes, (2 Camp. 343) "the agent is to be regarded as the proprietor." There is no doubt that the law upon this subject is adverse to the right of the plaintiff to re- cover. But even if Broadhurst & Co. had acted expressly in the capacity of agents, we are satisfied that the payment to them would have discharged the debt. The circumstances would have been sufficient to establish their authority to receive it ; and it is only in the absence of circumstances justifying it that such authority could not be inferred. The payment was made in the regular course of business, and the subsequent notification to the defendant to with- hold it seems to recognize their authority to receive it. Judgment affirmed.^ Section 2. — Liability of Principal to Third Party. BRIGGS ET AL. V. PARTRIDGE et al. 1876. Court of Appeals of New York. 64 N. Y. 357. Appeal from judgment of the general tenn of the superior court of the city of New York affirming a judgment in favor of defend- ants, entered upon an order dismissing plaintiffs' complaint on trial. (Reported below, 7 J. & S. 339.) This action was brought to recover the purchase-money unpaid under a contract for the purchase and sale of lands. The complaint alleged that the plaintiffs entered into an agree- ment in writing with one L. P. Hurlburd. who was acting for and under the authority of the defendants, "whereby these plaintiffs sold and the defendants through said Hurlburd bought" a certain described piece of land, "for the sum of $7,200, which said sum the defendants, through their agent, the said Hurlburd, agreed to pay," as specified. That it was further agreed that the plaintiffs should deliver the deed, and that the defendants should accept the same and pay the balance of the purchase-money unpaid on the ist day of February, 1874 ; that the defendants, through said Hurlburd, paid on the delivery of the agreement $100; that on the said ist day of February, 1874, the plaintiffs were "ready to carry out on their ^Accord: Saladin v. Mitchell, 45 111. 79; Traub v. Milliken, 57 Me. 63. Regarding the right of one, who has contracted with the agent of an undis- closed principal, to set up a discharge under a state insolvency law as a bar to an action brought by such principal see Ilsley v. Merriam, 7 Cush. (Mass.) 242. 463 ring to said ' ?nd siiffi- reas the Alt lij luiliii i)U ; Xhp cortn^r'' " since 1 .1 the de. -um agreed. TL fFs' counsel, in c it on which the • by the plaint! r-' ■e; that the \vr; was a principal pav. ' individually; that ■' AT in the instriT antitts ^ Hurlburd was a...., , -'-'d uu<.-.. ...-- .... iias M. Partridge, wr to be paid the 1 ' under the :■! imiiburd was the a;: ■e of said I' nsaction, and the authors artridge to llui-ruurd was oral. 1 this opening and on the complaint the defendants' counsel :d to dismiss the complaint on the grounds: First. That the stated in, the opening and by the complaint did not constitute use of action. Second. That it was not competent to vary the s of the written contract by ' -•■■•f that thr — '- ••'-': •ted the same as principal w. 'pal, bui ie plaintiffs' counsel tur^' constituted by parol rt;j'. in behalf of the defe; was made the plain' principal ; that the p: .^.ot at tiiat time kno\. e motion was therei J.— Th. .ic sale and purclia.-e oi !Jd it purport to have Ik • does not appear in '^'^ement to indicate i.. sted in the purchasi ' "tween. the plaint' and convey the . rchase and to pay It took no part in when he m^: .. . . , s ac^i'i"" '■ ~ rnent was un''f v nent UNDISCLOSED PRIK cases, agents employed to sell ma\ •-. If, says ■' ^' the payment is received by tlix. 'tor has no of any claim by the principal, the id thereby. Agency, § J - . '. •■ T . ., -1 , , said Lord I jb. in Klaci ■'the agent is to L>e 1 hat" the law upon i . to re- cover. But even I is. Co • pressly in the capacity of agents ned that to them would have discharged ^ he circi; aid have been suffici-- ' ' ■' ' : ..'aioritx- *- id it is only in the a1: s iustifx ' luthority could not be 1.. ' ■ course of bn,^!*iess, .r Mt to with- seenib tu« . rn rnt. < ■ J Llicir di. ■ u. \j\ 'IS with whom . 1 tieat the con- ;:aot ac I. contract of the 'lom it now ap- iluilijurd was acting, this accioii inusl lail. -^ .cs in his behalf the doctnnc thr.t must now b-. 'C the settled law of thi- h is supported Mti'.,>i;i, .' -where, that . e charged np'.'- utory contr >y an agent uciiiif. wiLiiiii ills authorit} , -• ' 'le pnu,-. not aprxMr in the instrunK-nl. ;. and tl: •th the agent supposed liiat lie w. ■ 'or himseli, auu ne obtains as well ''n respect to •vhich are re- I)e in writing, a where a w di.lity. (Higgiu. :: j> j^ , ' Kow. 289; Hunting* 7 Cush. 371 Co. V. Benedict, 5 Gra> 501; ; liubbert v. Bordeu, W i., 'rowning v.Provincial Ins. Co.. s L- R- [P. C] 263; Cdi Dobell, 6 L. R. [C. P.] 486: Story on Agency, §§ 14S, 160. iloubtless, somewhat difficult to reconcile the doctrine here h the rule that parol evidence is inadmissible to change, vary a written contract, and the argument upon which it -ted savors of subtlety and refinement. In some of the • f the doctrine referrci : , : i_^ • ■nhrown, and I am of '-^ninim-;. jii \v declared is to • ccognized exce]; :ige, resting ^-^ liable instrn; he parties whosi Marly cannot be char. '~ or indorsed as his nd. 94 : Pentz v. St;i 571 ; Stackpole v. Ai 'ict. 5 Gray 566; Beckham v. Dr •.\Vi\ li;)i! omi rint'ii .1 ij V friNM: n , rVDI? CLOSED -pm- J UN i : • .1 I ' . , II.'. ^l|(, /.n 1, 1 I I |.- Li 1 V. J 1. nsaction as the agent of the de .\:di, under an oral authority to enter and the defendant furnished the n-; o the broker who negotiate' ;• plaintiff upon the agreenier: money, and it is sought to enfo; ... ...c real purchaser and party, v.r>ry th€ nominal purcha.ser, was acting the transaction. The real question executory agreement, inter paries, as the simple contract of a person the instrument, on prcw^f that the signed and sealed it as his co- ihWA person to enter into the ;ent in the transaction, an . . - ■ "'•— • '^-^ 'i-^fault on ' • of such deici are n:. . person on ( Beckhai ' Town sen'' In the ''-^nri/od ' ;>als coul u'.'iigh it clt-Hi'i -tipulations were rs, and not 1 '1 that case \. ■ brought thv )idees to p3' that there was n. ':sclo.sed in his ^ down - action is iinpaid pur- ' the defendant ..; that Hurlburd, by his authority in vendor, in a sealed !">f land, enforce it ! or a party to ■ rein, and who rity from such , and acted as iiis proof, there udy and willing irchase-money ? cncior, so far as it : and where no act ! principal has been •.' t be, that Hurlburd n the covenants in the not for another, to pay ; fixes the character of to perform the contract forced against his nom- is equally clear that Hurl- r made the covenant of the n be sued on an indenture who i action will not lie against one rs to have been made by another. ir. c,.n l\^■^i■ !iere au agcni clui\- au- the <=i1e of the land of own name and iiDon him, the ;it as theirs, •ct that the - wid pur- u. The pbi" ced in the o • e the covenant e court decided he part of the vendors ■■:• :i'if<''PTncnl tlu- MrfloiT LIABILITY PRINCIPAL TO THIRD PARTY. 465 could not be maintained. It i.s clear, that unless the plaintiff can pass by the persons with whom he contracted, and tieat the con- tract as the simple contract of the defendant, for whom it now ap- pears that Hurlburd was acting, this action must fail. The plain- tiff' invokes in his behalf the doctrine 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 writ- ten parol executory contract entered into by an agent in his own name, within his authority, although the name 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 re- quired to be in writing, as to those where a writing is not essential to their validity. (Higgins v. Senior, 8 M. & W. 834; Trueman V. Loder, 11 Ad. ,& Ellis 594; Dykers v. Townsend, 24 N. Y. 61; Coleman v. First Nat. Bank of Elmira, 53 N. Y. 393 : Ford v. Wil- liams, 21 How. 289; Huntington v. Knox. 7 Cush. 371 ; The East- em R. R. Co. V. Benedict, 5 Gray 566 ; Hubbert v. Borden, 6 Whar- ton 91 ; Browning v.Provincial Ins. Co., 5 L. R. [P. C] 263; Cal- der v. Dobell, 6 L. R. [C. P.] 486: Stor>^ on Agency, g§ 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 qualification, 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 qualification is no longer regarded as an essential part of the doctrine. Whatever ground there may have been originally to question the legal sound- ness of the doctrine referred to, it is now too firmly established to be overthrown, and I am of 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 deal- ing 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 indorsed as his agent. (Barker v. Mechanics' Ins. Co., 3 Wend. 94; Pentz v. Stanton, 10 id. 271 ; De Witt v. Walton, 9 N. Y. 571 ; Stackpole v. Arnold, 11 Mass. 27; Eastern R. R. Co. v. Benedict, 5 Gray 566: Beckham v. Drake, 9 :\I. & W. 79.) That Hurlburd 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 ; and if the contract had been 30 — Reinhard Cases. 466 UNDISCLOSED PRINCIPAL. 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 contract for the sale of lands requires only that the contract, or some note or memorandum thereof expressing the consideration, should be in writing and sub- scribed by the party by whom the sale is to be made, or his agent lawfully authorized. (2 R. S. 135, §§8, 9.) In this case the con- tract 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 v. Tay- lor, 5 Hill 113; Worrall v. Munn, i Seld. 229.) But the vendee's contract need not be in writing. (McCrea v. Purmort, 16 Wend. 469.) 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 land, be enforced as the simple contract of the real prin- cipal 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 princi- pal's interest in the contract appears upon its face and he has re- ceived the benefit of the 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 instru- ment, which may be resorted to to ascertain the terms of the agree- ment. (Randall v. Van Vechten, 19 J. R. 60; Du Bois v. The Del. and Hud. Canal Co., 4 Wend. 285 : Lawrence v. Taylor, 5 Hill 107 ; see also, Evans v. Wells, 22 Wend. 324 ; Worrall v. Alunn, supra; Story on Agency, §277; i Am. Lead. Cas. 735, note.) The plaintiff's agreement in this case was with Hurlburd and not with the defendant. The plaintiff has recourse against Hurl- burd on his covenant, which was the only remedy which he con- templated 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 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 authorit}' for the proposition that a contract under seal may be turned into the simple contract of a person not in any way appearing on its face to^ be a party to Or interested in it, on proof de hors the instrument, that the nominal party was acting as the agent of another, and especially in the absence of any proof that the aP' has re I. by an The gv-i. g the defendant to 'tier, and know"' ' ' Streeter was ■ ■ 'd to L owned i Iden on my den h,. defendant r^ reeter 1^ t. and two j d "N. H. b. ,...., carried on the buj 1 any trine • I 1 said stable busiii mud by it within tl t shall liicds requir, thereof expi scribed by v lawfully ail'' tract w; on their have be lor. ' rop' which , 1.-, i; bard questio:; ■ •scribing sal(' nl ■>r his ageni ■■<■-'' the con- tixecutC' ! , L_\ , it would ence v. Tay- • the vendee'- it, i6 Wend Can at for the pur lie real p'"'" r this I Hold that \ that it is, in 1, but the pr 1- and he ha ihe other |.>arty and has "'d the contract is one ihe principal may be 'Mitained in the instru- .1 the terms of the agree - : Du Bois V. llie Del. Taylor, 5 Hill T07 . V. Munn, supra: Ar.) lurlburd and j^ainst Hurl- liich he con- ation of ' .1] a cn^'- ion bet- W', n tract under ii not in an) •1 in it. on y party was actin -f-nrc or .thv P' LIABILITY PRINCIPAL TO THIRD PARTY. 467 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 ag-ent for an unnamed principal so as to embrace this case. The general rule is declared by Shaw, Ch. J., in Huntington v. Knox (7 Cush. 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 there- fore 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.^ BROWN V. PARKER. 1863. Supreme Judicial Court of Massachusetts. 7 Allen 337. Contract upon an account, and two promissory notes payable to the plaintiff or order, signed "N. H. Streeter." The declaration alleged that the defendant carried on the business of keeping a livery stable under the name and style of N. H. Streeter, employ- ing said Streeter as his agent to manage the business, and that he, by said Streeter, made each of the notes. ' At the trial in the superior court, before James, J., it appeared that the notes were given for carriages sold by the plaintiff and de- livered at the stable; and the plaintiff testified that he sold them, believing the defendant to be interested in the stable as owner or partner, and knowing that he was of sufficient ability to pay, and that Streeter was insolvent. There was evidence that the defend- ant admitted to another witness that he was interested in the stable and owned the stock; whereupon the witness asked, "Are you holden on my demands? I have taken Streeter's notes;" to which the . defendant replied, "Yes, they will be paid. I own the stock." Streeter had the general management of the business at the stable, under a power of attorney from the defendant which con- tained the following language : "Now said Parker hereby makes said Streeter his agent to man- age said stable stock as a let stable, and gives him full authority to carry on said stable business and to make any purchase that may be necessary therefor, the said Streeter keeping regular accounts open at all times to the inspection of said Parker, and accounting to said Parker once a quarter, beginning with April i, 1858; for ^Accord: Jones v. Morris, 61 Ala. 518. Compare Moore v. Granby Mining, etc., Co., 80 Mo. 86. 468 UNDISCLOSED PRINCIPAL. which said services as agent said Parker is to allow said Streeter the sum of three hundred and seventy-five dollars per quarter, and five per cent, commissions on the net profits of said business." The plaintifif also ofifered to prove, by parol evidence, "that the defendant admitted Streeter's agency, and his authority to sign these notes for him ;" but the judge ruled that, under the circum- stances, parol evidence was not admissible for the purpose of show- ing that Streeter signed these notes as agent of the defendant, or that the defendant was bound by his signature. Tlie defendant thereupon was allowed to file, against the plain- tiflf's objection, a written paper, consenting to- a verdict against him for the amount of the account ; and a verdict was accordingly re- turned for that amount only. The plaintiff alleged exceptions. BiGELow, C. J. — There can be no doubt that, on well-settled principles, persons or coqwrations may be held liable on contracts, express or implied, negotiable or otherwise, entered into and exe- cuted under a name or style different from that which usually and properly belongs to them, and in which their own proper names or signatures do not appear at all. But such liability exists only where it is affirmatively and satisfactorily proved that the name or signature thus used is one which has been assumed and sanctioned as indicative of their contracts, and has been with their knowledge and consent adopted as a substitute for their own names and signa- tures in signing notes or executing other written contracts. In such cases, the adopted name is in law equivalent to the actual name of the party. Melledge v. Boston Iron Co., 5 Cush. 158, 173. But the evidence in this case failed to show that the defendant ever rec- ognized the name affixed to the notes declared on as equivalent to his signature, or in any way authorized any contract to^ be signed by a name other than or different from his own. Nor was there a foundation laid by the proof of facts from which any such inference could be drawn. On the contrary, the agreement or power of attor- ney produced by the plaintiff in. support of his case, and by virtue of which it is alleged that the defendant is liable for the notes, is a mere contract of agenc}", which not only does not contain any stip- ulation by which the business is to be carried on or contracts are to be made in the name of the agent as a substitute for that of the de- fendant, but does not even confer on the agent any authority to give negotiable promissory notes in the name of the principal or otherwise for the purpose of transacting the business of the agency. Without express authority he could not properly sign notes in the name of the principal. An ag"ent employed to make purchases can- not give negotiable paper on which his principal will be liable. Ta- ber V. Cannon, 8 Met. 456 ; Webber v. Williams College, 23 Pick. 302. Nor did the other evidence offered by the plaintiff sustain the proposition that the name of the agent was by sanction or adop- tion or usage a substitute for that of the principal. Taken in its i LIABILIT i'X) broadest aspect, and '^, of which it is r r -nably susceptible, it i. a vcibal aumission of agency, iiiiii of an authority by th. t sign the notes in suit for him. But the difficulty with ■ oi the case is, that the agent did not execute this authority. ' sign the notes for the defendant, but he affixed his own nan. ■. The plaintifT did not offer to show that the defendant adrnu ignature of the agent to be his, or that it was tised in lieu i ■ as a substitute therefor. As the case stood, therefore, or, it was the • the agent only. Parol e\idence was o show tb?,' given in the course of the agency, or on aci the principal. Such evideiv f ^^ rmld have :.. .. . _ action brought on a writter ington V. Knox, 7 Cush - bills of exchange, no • principal whose nai, the note or draft. 1 •nwealth, and the reasurts on which the rule rests have bee .ited in very recent 'L' '?'on.-. Sli^wson v, Loring, 5 Allc__ ^, . d cases cited. We do not see l.v.vv ..^v, ,.,0.^..,,, > o> aggrieved by the ruling of the court allowing the defendant to file the written paper consent- ing to a verdict on the count for labor and services. The plaintiff had a verdict for all that he could legally claim, and he cou'd not rightfully use the fact that the defendant was wil' !d responsible for the amount of the account as evideii. :i- on the notes. Exceptions overruled- ontract, not Hunt- in suits on px:n< '-■■ or Imissible to cha: •n way disclosed e n often decided in -- I KAYTON ET ;URT OF A, Appeal fhom judgment ■ ^ of 'he sm the city of New Yoi 86, which denied a m.-L.. favor of defendants, entc . :"f s trial. full discu5si'„ii; r^:.. ' ^ a bic instrument in In Pioneer Mining C", - .-e >," etc., and w.i? signed n. e (iiscussion ut Ojar.ii i-ioward, Harv. Law <;6. 4^'iS UNDISCLOSED a- plaintiff al?'' ' to prove. 1- ■ : ^enclant admitte. •"s afrencv, tiicse notes for stances, parol c ing that Stree' se n(»tes as that the defendi . d by his sig ;.,.... The defendant t was allowed to tiff's object' •• per, consenti- for the ar- ent; and a turned for uini ..■niy. The plai. BlGEVr-'v. < •re can be no princij rations . . .Jjle or ■> I (a ' (''C ■ style di* 'in icin, and ' ''" .]>pear at and sa; •ne whic; h said services as agfent said Parkev is to allow said Streeter i^m of three hundred and seventy-f^' - .!..);. -.^m- quarter, and : cent, commissions on the net pr< 'isiness." . "that the y to sign ■le circum- ., c of show- defendant, or file, against the plain- ''ct against him ccordingly re- xceptions. n well-settled on contracts, into and exe- m that which usually and • "^ proper names ity exist? only I tnat the name or led and sanctioned ;cts, aiitl lias been with their knowledge ibstitute for their own names and signa- ,'cuting other written contracts. In such M t'l A (• ,n;. ii, nt to the actual nam-e of Cush. 158, 173. But jii to s: ;he defendant ever rec- the not ed on as equivalent to 'Vhorizt.. c.iv contract to be signed lit from h Mwn. Nor was there a '.acts frc any such inference f^'^ :■ "T power of attor- and by virtue •- i' nntracts are to 'hat of the de- o-n Ltjc • authority to the nai. c principal or ting the busmess of the agency. •^ ^t properly sign notes in the ved to make purchases can- ' v.ill be liable. Ta- : ^ College, 23 Pick. . i^iviiCL ■ili-.ied by the plaintiff sustain ^ ' ^f the :\^;'nt was by sanction or adop- e princifial Taken in ; the c, ognizc his signati by a name foundation iaiM could be drawr. ney produced I ■ ''' ■ '--ch it is . contrac! 1 by which l: ie in the naiv iV.iviani. but does . ;"•■ ' negotiable pn ise for the purp< * 'y press authoi J principal. n. [ give r.egotiable paj. ber V. Cannon, 8 Met. 302. Nor did the other . the proposition tliat the nnn tion or usage a substit; LIABILITY PRINCIPAL TO THIRD PARTY. 469 broadest aspect, and giving to it the fullest effect of which it is reasonably susceptible, it only shows a verbal admission of agency, and of an authority by the agent to sign the notes in suit for him. But the difficulty with this part of the case is. that the agent did not execute this authority. He did not sign the notes for the defendant, but he affixed his own name to them. The plaintiff did not offer to show that the defendant admitted the signature of the agent to be his, or that it was used in lieu thereof, or as a substitute therefor. As the case stood, therefore, on the evidence, it was the note of the agent only. Parol evidence was inadmissible to show that it was given in the course of the agency, or on account of the business of the principal. Such evidence would have been competent in an action brought on a written simple contract, not negotiable. Hunt- ington V. Knox, 7 Cush. 371. But in suits on promissory notes or bills of exchange, no evidence is admissible to charge any person as principal whose name is not in some wav disclosed on the face of the note or draft. This point has been often decided in this com- monwealth, and the reasons on which the rule rests have been fully stated in very recent decisions. Slawson v. Loring, 5 Allen 340, and cases cited. We do not see how the plaintiff was aggrieved by the ruling of the court allowing the defendant to file the written paper consent- ing to a verdict on the count for labor and services. The plaintiff had a verdict for all that he could legally claim, and he could not rightfully use the fact that the defendant was willing to be held responsible for the amount of the account as evidence of his liabil- ity on the notes. Exceptions overruled.^ I KAYTON ET AL. V. BARNETT et al. 1889. Court OF Appeals OF New York. 116N. Y. 625. Appeal from judgment of the general term of the superior court of the city of New York, entered upon an order made December 2, 1886, which denied a motion for a new trial and directed judgment in favor of defendants, entered upon an order non-suiting plaintiffs on trial. ' See full discussion regarding the liability of an undisclosed principal on a negotiable instrument in Sparks v. Dispatch Transf. Co., 104 Mo. 531. In Bean v. Pioneer Mining Co., 66 Cal. 451, a promissory note read "we promise to pay," etc., and was signed "Pioneer ^Mining Company, John E. Mason, Sup't." It was held that, as the note was ambiguous, parol evidence was ad- missible to show that it was the note of the company. See Van Dyke v. Van Dyke, 123 Ga. 686. See discussion of Coaling Co. v. Howard, 130 Ga. 807, in 22 Harv. Law Rev. 56. 470 UNDISCLOSED PRINCIPAL. This action was brought to recover a balance of the purchase- price alleged to be due for certain property sold by plaintiffs to defendants. On the 17th day of March, 1881, the plaintiffs sold and delivered to William B. Bishop several machines, and assigned to him certain letters-patent for the agreed price of $4,500. Bishop paid $3,000 on delivery and gave three notes, dated March 24, 1881, for $500 each, one due nine months, one fifteen months and one eighteen months after date, without interest. June 29, 1883, Bishop died insolvent without having paid the notes, or any part of them. The plaintiffs tendered the notes to the defendants, and on August 22, 1883, brought this action to recover the part of the purchase-price represented by the notes, on the theory that Bishop, as agent for the defendants, bought the property for them, without disclosing his principals until after the execution and delivery of the notes. The defendants, in their answer, denied that they purchased the property, and alleged that it was bought by William B. Bishop, for the price and on the terms stated in the complaint. Further facts appear in the opinion. FoLLETT, Ch. 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 the 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 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 with plaintiffs ; that the prop- erty was purchased for and delivered to the defendants, who have ever since retained it ; that they paid the $3,000 towards the pur- chase-price, and agreed with Bishop, after the notes had been de- livered, to hold him harmless from them. Notwithstanding the as- sertion of the plaintiffs that they would not sell to the defendants, they, through the circumvention 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 pursu- ant 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 pur- chase, 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. LIABII the jiidpriT'C''"'' costs to ut. All cv , Mai-ht ed, with KELI jSqo. Supreme Black, J. — This is an art; following- contract, which :■: ■-ived of D. T. Kt ch;'M I'lice of tifty-tvvo ; * * * I agree to ma: rant}' deed conveying saic ^> (ces without delay, and as so • have been examined and appi ' pay to me the sum of $950 in cash and ($664) the balance ;>urchase-price he shall pay in three equal annual installments, • 8 per cent, interest, to be secured by deed of trust executed on said property. If I shall fail to convey, good title to said premises '(i -..ii,! T\'!l\- ;-is .if, ;:-(•-:. id iiien ^;,id .s;r> >!irt1l be refunded to him. ' ARD X TOOEY, ■\X T. KELL good a' 1 Kelly i.. . . . • abstract of titl. paid $3,000 -i, /881, for $500 and one eighteen .' ), 1883, Bishoi? died -■\y part of them. The :(iants, and on August 22. l>art of the purchase-price that Bishop, as agent for . ■ 1. i«y{ them., without disclosing; cution and delivery of the notes. , •' ' ' :y purchased the • I ■: ni ]\. Bishop, for ■ in ihe cumplanit. Muion. :;^ are sold, on credit to a person ^" '" purchaser, and he afterwards light as agent for another, the i>rincipal for the purchase ence of tins general ruk. lo ihis case, because, while Bishop • ]g, they stated they would not sell and Bishop assured them he wa • cm. ^' "■••'trs by evidence, whicli y. directed .every stej; i ;''Ts ; that the prop :idants, who hav\ towards the pur *c.-> had been de iding the as e' defendants, fendants, did he benefit of < -price pursu- ent. Bishop's so the minds '.;"h their own ... , . perty by pur- re tiot liable for the M> V, through their agent, lo that which tht^y did not e done had the defendants LIABILITY PRINCIPAL TO THIRD PARTY. 47I The judgment should be reversed and a new trial ordered, with costs to abide the event. All concur, except Haight, J., not sitting. Judgment reversed.^ KELLY V. THUEY et al. 1890. Supreme Court of jMissourl 102 Mo. 522. Black^ J. — This is an action for the specific performance of the following contract, which is dated the i6th of December, 1885 : "Received of D. T. Kelly $50, being in part payment of the pur- chase-price of fifty-two feet by fifty off the west end of lot No. * ^: * I agree to make and deliver a g'ood and sufficient war- ranty deed conveying said premises to said Kelly free of all incum- brances without delay, and as soon as the abstract of title thereto shall have been examined and approved, at which time said Kelly shall pay to me the sum of $950 in cash and ($664) the balance of the purchase-price he shall pay in three equal annual installments, with 8 per cent, interest, to be secured by deed of trust executed on said property. If I shall fail to convey good title to said premises to said Kellv as aforesaid, then said $50 shall be refunded to him. "RICHARD X TOOEY, "BRIDGET X TOOEY, "D. T. KELLY." James T. Kelly, claiming to be the real purchaser, in due time tendered to Thuey the balance of the cash payment and offered the ^ "It may certainly be now regarded as a point settled, beyond all possible controversy, that if an agent, duly authorized, makes a contract in his own name, without disclosing his principal, and even when such principal is en- tirely unknown to the other contracting party, he is nevertheless bound, and damages may be recovered of him in an action for its breach. By contract- ing in his own name, the agent only adds his personal obligation to that of the person who employs him." Sharswood, J., in Youghiogheny Iron Co. V. Smith, 66 Pa. St. 340, 343. Parol evidence is admissible to establish the liability of an undisclosed prin- cipal upon a written contract executed by the agent in his own name. Chandler V. Coe, 54 N. H. 561. On page 572, Hibbard, J., quotes the following from the opinion of Baron Parke in Higgins v. Senior, 8 M. & W. 834: "This evidence in no way contradicts the written agreement. It does not deny that it is bind- ing 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 agree- ment, in pursuance of his authority, is in law the act of the principal." Where the memorandum of agreement, required by the Statute of Frauds, was signed in his own name by the agent of an undisclosed principal, parol evidence is admissible to establish the identity of the principal, who will be liable upon the agreement. Roehl, Adm'r, v. Haumesser, 114 Ind. 311. 472 UNDISCLOSED PRINCIPAL. contract by executing his notes and deed of trust for the deferred payments. Two or three days after the execution of the contract, Thuey sold and conveyed the entire lot to the defendant. Bush, who pur- chased with full knowledge of the outstanding contract.^ * * * 3. The further defense is that the defendant Thuey made no con- tract whatever with the plaintiff, James T. Kelly. The evidence of D. T. Kelly is, that Thuey asked him to find a purchaser for a part of the lot, and that he mentioned the matter to his brother, James T. Kelly, who concluded to buy the fifty-two feet ; and that he, D. T. Kelly, then entered into the contract in question. The first contract was informal, and James T. Kelly, the plaintiff, had a more fonnal one prepared, which is the one now in question, and D. T. Kelly signed it and then had it signed by Thuey. James T. Kelly furnished the $50 paid at the time the contract was executed. As between the two Kellys, it is clear that the property was pur- chased for James T. ; but he had the contract made in the name of his brother. The other evidence does not show that Thuey knew James T. Kelly had any interest in the transaction ; so far as the evidence goes, it would seem he had no such knowledge. The an- swer of Thuey, however, states that D. T. Kelly said a man for whom he was acting, but whose name he did not give, would pur- chase the property, and that by false statements he induced defend- ant to agree to sell the property to the party for whom Kelly was acting. We must take this verified answer as an admission that Thuey knew D. T. Kelly was buying the property for an unnamed person. The other evidence shows that he was acting for plaintiff, but this Thuey did not know. The contract was taken in the name of the agent by the directions of the plaintiff, for he had it prepared. Un- der these circumstances, can the plaintiff compel specific perform- ance? Where, as here, the contract is not imder seal, if it can be gath- ered from the whole instrument that one party acted as agent, the principal will be bound, or he may sue thereon in his own name. Indeed, if the instrument is so uncertain in its terms as to leave it in doubt whether the principal or agent is to be bound, such uncer- tainty may be obviated by the production of parol evidence. Hart- zell v. Crumb, 90 Mo. 630 ; Klostermann v. Loos, 58 Mo. 290. But these principles cannot aid the plaintiff in this case, for there is nothing whatever on the face of this contract to show that D. T. Kelly acted as agent for any one. The plaintiff insists that a much more comprehensive doctrine should be applied, and he refers to the often cited case of Higgins V. Senior, 8 Mees. & Wei. 843, which was a contract for the sale ^ A portion of the opinion is omitted. A' that i ! proof, i 'oi evidence will :,fr;-..i- lii^caiise it eason c L :o his aiiti; •uroval bv t! ... ;■!'._:■ Story (•■ 'ih ed.), :. '^ r'n>h. Vr i : l P.irfrir!p-p f< n name only, ti I'd thereon, may Yrc ..p;jli. the prmcip:- ^'^ ...• c cases whet of the parties to V. ruai. il <:X]jrcSbcs. jum ixoress. The plaintiff .ected it to be m-adc in ! 11 name. In short, the c^ 'Uv, and was so inLerde executei; rty was pur (.: in the name o l""tt Thuey knc\' so far as tb' li;e. The ai. . said a man fo . ■ -t give, would pui 'ts he induced defend uiy for whom Kellv . . as an admission that 'i ' : ■ . pcrtv for nn iinnamed pi' plaintiff, but thi ., ..I the name of tf- had it prepared. Un -' --• ,-rij^r perform can be gatb ere as ag^ent, tb j.rinciir s own name '•<-■"'■' ' ' as to leave [' :, such uncer lence. Har\ lO. 290. Br' for there i- A' that D. 1 ichensive doctrin should be applied, a-. ■ ■.ited case of Higgii- > ~,-Ti;, ,r y Vr,- ,'.c .,-.■^tr■^rt tr.i- rV,,-- .at he was n,. There seems to be less of die would expect. But I thi: the argument laid down the < ' that the defendant as to principal and A the acts of the led to an agent i s h>etween the principal and / ; upon that :>.. ■ 'd that it is onJy so wh'^'>^ ' ' — : a holding oiu _ . which cannot be sai where the person su - knew nothing of tliu -.MMmc of a principal. But I ii^j h'jl so. Otherwise, in every case of undisclosed principal, or at every case where the fact of .there being- a principal was un- sed, the secret limitation of authority would prevail and de- :he action of the person dealing with the agent and then dis- ing that he was an agent and had a principal. t in the case of a dormant partner it is clear law that no lim- ii of authority as between the ' • ■'* -nd active part;- - ■•■"^ the dormant partner as to i rhe ordinan a partner. The law ' ' at a branch of the l rs to me to be undisputed and coi iscussion. e principle laid down by ' ' learned county conn ' • iated in the judgmc ' . v. Bushell (i), xal with those .s no holding ou: I appreciate the -, but the principle Iff to, ;, abund?--''' '■ ^■'•'•- iittt ' has e \ i; ind that v^•r^ ni'.-v;' den re- it principle were not this api" .^ts. d.i UNDISCLOSED PKI j<€ a new contract for the parties, ich evidence does not alter &■• lie in hand, is a doctrine too ■ ided. D. T. Kelly contracted for tli«- i-e is entitled to lliuey's covenant of be required to take the covenants of soni< -I' "Id sell the property. Steiner v. Zwickc; . on the other hand, Thuey contract'. i! ive, the notes and deed of tnist of D. T. i compelled to take the notes of another person may be as between the Kellys, the plaintiff ' tract with Thuey, and he cannot enforce and thereby compel Thuey to accept hi payments. The right to enforce specific perfor in D. T. Kelly and not the plaintiff. D. and deed of trust, and to that end tht and he is, therefore, a : The JTidcfment is, th- that the admis- ' t, in a case lo be com- dccd of Thuey, ind could not hom Thuey id is entitled to ;_v, iuid he cannot be Whatever the rights - \ to the con- inance 6i it llie deferred contract exists t make the note vested in him, V to this suit. remanded. ihc couniy court judge ot Middles- From tne cvid' busine>e judgment , ^ _. ... a. .. lefendants for the price of '^"^ioi lfon-u}K)n-T€es. 'The oerson named Hum- LIABILITY PRINCIPAL TO THIRD PARTY. 475 ble, whose name was over the door. The plaintiff gave credit to Humble, and to him alone, and had never heard of the defendants. The business, however, was really the defendants', and they had put Humble in it to manage it for them, and had forbidden him to buy cigars on credit. The cigars, however, were such as would usually be supplied to and dealt in at such an establishment. The learned county court 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 estab- lished that the defendant was the real principal, the ordinary doc- trine as to principal and agent applies — that the principal is liable for all the acts of the agent which are within the authority usually confided tO' an agent of that character, notwithstanding limitations, as between the principal and the agent, put upon that authority. It is said that it is only so where there has been a holding out of author- ity — which cannot be said of a case where the person supplying 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 every case where the fact of there being a principal was un- disclosed, the secret limitation of authority would prevail and de- feat the action of the person dealing with the agent and then dis- covering that he was an agent and had a principal. But in the case of a dormant partner it is clear law that no lim- itation of authority as between the dormant and active partner will avail the dormant partner as to things within the ordinary author- ity of a partner. The law of partnership is, on such a question, noth- ing 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 un- der 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 v. Bushell (i), 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 de- fendant. I appreciate the distinction drawn by Air. 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 re- sult if that principle were not upheld. In my opinion this appeal ought to be dismissed with costs. Appeal dismissed.^ ^ See discussion of the principal case in 7 Harv. Law Rev. 49. Compare Schendel v. Stevenson, 153 Mass. 351. 476 UNDISCLOSED PRINCIPAL. BROOKS V. SHAW. 1908. Supreme Judicial Court of Massachusetts. 197 Mass. 376. Contract or tort to recover the value of goods of the plaintiff alleged to have been lost by the defendants who, being engaged in business under the name of "Sawin's Express," accepted them for transportation to the plaintiff. Writ in the municipal court of the city of Boston dated April 9, 1906. RuGG, J. — ^ * * * The trial judge found that for a period of many years prior to September i, 1904, one M. M. Sawin carried on an express business between Boston and Cambridge under the name of "Sawin's Express," and that Herbert E. Sawin was assistant manager. The defendants acquired the business in September, 1904, and continued to carry it on under the name of "Sawin's Express" in the same manner in which it had been carried on theretofore without change in the name, lettering on wagons, or billheads, and Herbert E. Sawin was continued as the agent at Cambridge in charge of the business. In November, 1905, a dress belonging to the plain- tiff was lost while being transported by Sawin's Express from Boston to Cambridge, it having been received from the consignor on a contract limiting liability in case of loss to $50. The defend- ants were unable to find the package, and Herbert E. Sawin in a conversation with an agent of the plaintiff said, in substance, that he preferred, rather than to pay for the one that was lost, that the plaintiff should get a new dress and that he would settle for it. At the time of this conversation neither the plaintiff nor her agent had any knowledge of the transfer of Sawin's Express to the defend- ants, but believed that it was being carried on by the same persons as before the sale. Herbert E. Sawin disclosed no agency, and pur- ported to act as principal, but in fact had no authority to bind the defendants by the proposition made. His instructions being to refer all claims in excess of $3 to the Boston office. No notice of this limitation of authority was brought home to the plaintiff or her agent. The judge further found that Herbert E. Sawin in dealing with the plaintiff and her agent was in fact agent for the defend- ants, who were undisclosed principals, and ruled that the plaintiff had a right of action against the defendants, and that they could not set up the limitation which they had imposed upon the authority of Sawin and found for the plaintiff. The judge also refused to rule that if at the time of the promise the plaintiff and her agent supposed that M. M. Sawin was the owner of the Sawin's Express, and did not know or understand that Herbert E. Sawin was acting for the defendants, then the plaintiff was bound by the actual authority of Herbert E. Sawin. The defendants' exception to the ^A portion of the opinion is omitted. LiAnii.i 47; give this rr nally made 'lings tile case ucfore u?. '['lie defendants held out ns- eir business in Caml r 'tie ^ not exceeding $3. '■- lay be charged with and ava ■1 of the acts of his agci;i. ■:-, ^> ''■ ■ m-i; ■. . lass. 169.. It follows from thi 'elation .■^i'di and agent is found to exist, the ^v of the principal to third pef^on? ' ^shed. The principal is ...a: the apparent scope of ' Jr. Justice Holmes in 5 Harvard Law Review, imistances known to him, the ol>vious consequv..!..-^ ■■ i.d's own conduct in employing the agent is that the |)^ ' him to have given the ag< «wers, he gives it powers. * * * ^ii^ isible powers (ai^ )Owers.'' Limitations as IxLuccn principal and agent of a.i ently general authority, not brought to the knowledge of third ns, do not affect the rights of the latter. One of the usual inci- ..i.-> of carrying on business is to settle the losses that occur in con- icction with that business. By an arrangement between the defend- and Herbert E. Sawin. the agent's authority as to losses was d to $3, but his ostensible power= ^^ve no notice of any lim- n upon the extent of his autl this respect. Therefore i laintiff was not bound by it. .\i v. Fenwick CtSo:^) i >. H. 346: Edmunds v. Bushell, L "■. 97; S] ss. ■\. R. 5, Q. B. 656; Irvine - '^v-,, r. 1 , 1 Exceptions overruled." thoma: SuPREJr lit, j. — This suit was br t. The complaint states, ice twenty thousand, eight ...... walnut lumber, for which aj )ay at the rate of thirty-three doll;; Hubbard v. Tenbrook, 124 ; ■:-wi • "TV..^ rule so v'C"'-' with an ap- rhe of - d to t three :hat case aintiff in nthority. rule that :cs dealing on 47* .\ UIM. LU,^ ]jROOK: 1908. Supreme Judicial Court Contract or alleged to have business under transportation ti» lli city of Bostr-i -'latc R(JGG, J. many year? 1 an express ' of ■ ■ ma ail''- in. wit' nit aei "Sawin - f. Writ >, 1906. trial jii r I, 19'- fioston ; ported to a. defendants ' all claims ; limitation <.■ agent, Tlic :io wer«* J I.... c; right of . noi set up the li.i of Sawin and font; rule that if at the t iUfjfxii^ed that M. ]\' and liid not know O' for the defendants, authority of Herber. '' A portion of the opinior ' 97 Mass. 37< f the plaintii . p. gaged i.i - - them f«. ia liie inuuiui>^l court of th •I that for a period < "■'. Sawin carried o' ,-;• under the nam ''■:'. ■fni.ji. r.. -awin was assistai le business in September, 190^; uiidcr the v. Sawin's Expres:- ;ch it had h- d on theretofore or billheads, aii' '.nbridge in charp iging to the plaii' :i!i5^ n.M -, 1-. ill's Express fro'^ it having s d from the consigm ■ • ■■ ioss to $50. The defen'' xid lierbert E. Sawin in •I' tiic jjlaintiff said, in substance, th. •;n for the one that was lost, that tl ind that he would settle for it. A .ivuher the plaintiff nor her agent ha fer of Sawin's Express to the defen(' ' " '1 by the same person 1 no agency, and pu' iaci iiad no authority to bind tli , ■\c. His instructions being to ref< -ton office. No notice of th^ i.r.i;,.- t > the plaintiff or h'.; Sawin in dealin I for th« defen; ; that the plainti; .uid that they coul' ■ed upon the authorit . ■ also refused 1 liff and her age:- the Sawin's Expres; E. Sawiii was actin;: Ijound by the actua ciidants' exception to the LIABILITY PRINCIPAL TO THIRD PARTY. 477 judge's refusal to give this ruling and to the ruling actually made brings the case before us. The defendants held out Herbert E. Sawin as their agent to trans- act their business in Cambridge. He had express authority to settle claims not exceeding $3. The doctrine that an undisclosed princi- pal may be charged with responsibility for and avail himself of the benefit of the acts of his agent is well settled. Byington v. Simpson, 134 Mass. 169. It follows from this, that, when the relation of prin- cipal and agent is found to exist, the ordinary rules of responsibil- ity of the principal to third persons for the act of his agent are established. The principal is responsible for all acts of the agent within the apparent scope of his authority, or, to use the phrase of Mr. Justice Holmes in 5 Harvard Law Review, i, "If, under the cir- cumstances known to him, the obvious consequences of the princi- pal's own conduct in employing the agent is that the public under- stand him to have given the agent certain powers, he gives the agent those powers. * * * An agent's ostensible powers (are) his real powers.'' Limitations as between principal and agent of an apparently general authority, not brought to the knowledge of third persons, do not affect the rights of the latter. One of the usual inci- dents of carrying on business is to settle the losses that occur in con- nection with that business. By an arrangement between the defend- ants and Herbert E. Sawin, the agent's authority as to losses was limited to $3, but his ostensible powers gave no notice of any lim- itation upon the extent of his authority in this respect. Therefore the plaintiff was not bound by it. Watteau v. Fenwick (1893) i O. B. 346 ; Edmunds v. Bushell, L. R. i Q. B. 97 ; Spurr v. Cass, L. R. 5, O. B. 656; Irvine v. Watson, 5 Q.'^B. D. 414. Exceptions overruled. - THOMAS V. ATKINSON. 1871. Supreme Court of Indiana. 38 Ind. 248. Pettit, J. — This suit was brought by the appellee against the ap- pellant. The complaint states, that the appellant purchased of the appellee twenty thousand, eight hundred and sixty-four feet of black-walnut lumber, for which appellant agreed and promised to pay at the rate of thirty-three dollars per thousand feet ; that three ^Accord: Hubbard v. Tenbrook, 124 Pa. St. 291. On page 296 of that case Mitchell, J., said : "The rule so vigorously contended for by the plaintiff in error, that those dealing with an agent are bound to look to his authority, is freely conceded, 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." 4/8 UNDISCLOSED PRINCIPAL. hundred and eig-hty dollars had been paid, leaving due and unpaid three hundred and fifty dollars, for which judgment was demanded. Answer, first, general denial ; second, payment. Reply of gen- eral denial to second paragraph of the answer. Trial by the court; finding for the plaintiff, appellee, in the sum of three hundred and eight dollars and thirty-seven cents. Motion for a new trial, for the following reasons : First. The finding is contrary to law. Second. The finding of the court is contrary to the evidence. Third. The finding of the court is not sustained by sufficient evidence. Fourth. For error of law occurring at the trial, and excepted to by the defendant at the time, in this, to wit : first, the court allowed improper evidence over the objection pointed out at the time to the court; second, the court rejected proper evidence offered by the de- fendant ; third, the court refused to receive material and proper evi- dence offered by the defendant. This motion was overruled; exception; and judgment on the finding was rendered. The whole evidence given, offered, and refused, is as follows. For plaintiff : Josephus Atkinson, the plaintiff, testified that some time during the latter part of November, 1868, one William H. Munday came to him and stated that he wished to buy some walnut lumber, and would pay the plaintiff thirty-three dollars per thousand feet; that he accepted the offer, and agreed to deHver the lumber to Munday at the railroad ; that he did not know the defendant at that time ; that Munday advanced him one hundred dollars on the lumber ; that in accordance with his contract with Munday he afterward de- livered to Munday twenty thousand eight hundred and sixty- four feet, for which Munday had paid him in all three hundred and eighty dollars, leaving a balance due of three hundred and eight dollars ; that soon after the lumber had been delivered at the railroad, he met the defendant, told him the bargain he had made with Munday, and requested the defendant to tell Munday when he should see him that the lumber was there, which the defendant agreed to do ; that in a few days Munday went and measured the lumber and shipped it to the defendant at Toledo, Ohio ; that Munday then told the plaintiff to go to Delphi, and he would pay him for the lumber, but it was agreed that Munday should send the money by express in a day or two; that about the middle of May, 1869, Munday having failed to send the money as he agreed to do, the plaintiff went to Delphi to know the reason of Munday's failure to send the money ; that previous to going he had received a letter from Munday, stating that the defendant had not paid him, Munday, for the lumber ; that while at Delphi the plain- tiff met the defendant and stated to him that Munday had written, Out Oi i iant, he ' ins pa}'', because it ..ame; and that i^' ■ '^ int in Delphi, \\\ lay in full for the :'i • cross-examination ■d with Munday iefendant; that Iv -cause he then had : long time ; that he \ imber; that the def.: >r the lumber; that Say, he told the defei imber, the defei' ' ware that the dc; ^feridai itiflf lest or prom: g-et his puj him respon -. liable; that he :d Munday as h id that he had made no mqmnes on tiiat point of any one ; that if. r 'm- had failed to get the balance ^i<- him from Munday, he had a letter, dated June 7, 1^ e defendant, stating that r \s.Liiccd his money, and that the u- ^ : i.nt, as an honorable man, ught to see that he got his pav : in answer to which the defendant maintained that he was n. ■ ' George W. Hubbard i- id met the defendant ii- tfendant stated that he j.mber, but he did not sta or it. David E. Emely testifie Alunday went t'> ; •it tolfl i^,Iunda\ '. ., >c \ Ohio, ^ re- r told Ml . . ,[- r the lumber was measir. William M. ^[undn- -- :• told the defcndani ■, ould advanc'. _ la 'ced him, M : .-.vs ; : as the , of ■ ; that h: !ol- ; that when the 1 at the '■'■ 'i--r.-'..i'.nt I,.- ...,^j he, the -ured it and is never the 'lar M>!SCLO'>En PRINCTPAl.. . and eig]:._ hundred and fifty d' .swer, first, genc"' Jeniai to second ' ^r the p: irs and Mutiun for a r The Hi' Plrst. Second Third, evidence Fourti^ hv tlie ('• This findin:- Ti Mi i) livered •. tour fev hundred hundred been delt ; mat iViuno ■' ''Hy him i ., !id the mon- ■):u, lie !.f May, 1869. he agreed to do, the 1 Munday's failure to ? i"e'^^iv'?d rt Ipt^T fror ; unpaid aanded. ^>ij of gen- y the court ; Mindred and ■ V to the evidence. . :!-.i;,i,-'-i v.\- ci-.-fiT.-ient ' ■ ■.;;i, aiui cxcqaed to t the court allowed time to the '! by the de- ' proper evi- dgment on the !, is as follows. 'f^ed that some time during n H. Munday came ,_ walnut lumber, and per thousand feet; that the lumber to Munday defendant at that time ; - on the lumber; that - he afterward de- tred and sixty- 1 in all three ' due of three lie lumber had tn, told him the *'ie defendant j- was there, ! unday went ■ t at Toledo, iJetphi, and he I that Munday ; that about the : J the money as w the reason of LIABILITY PRINCIPAL TO THIRD PARTY. 479 and the defendant said it was not true, as he had paid Munday in full for the hnnber; when the plaintiff went to see Munday, but could get nothing out of him for the lumber ; that the next time he met the defendant, he told the defendant that he should look to him for his pay, because it was measured, marked, and shipped in his name ; and that this was several days after he met the de- fendant in Delphi, when the defendant told him that he had paid Munday in full for the lumber. On cross-examination, the plaintiff testified that when he con- tracted with Munday for the sale of the lumber, he did not know the defendant; that his contract with Munday was not in writing, because he then had great confidence in him, as he had known him a long time ; that he made no charge against the defendant for the lumber; that the defendant never agreed or promised to pay him for the lumber ; that when, after failing to get his pay from Mun- day, he told the defendant he should hold him responsible for the lumber, the defendant denied that he was liable ; that he was not aware that the defendant had ever recognized Munday as his agent, and that he had made no inquiries on that point of any one; that after he had failed to get the balance due him from Munday, he had addressed a letter, dated June 7, 1869, to the defendant, stating that he wanted his money, and that the defendant, as an honorable man, ought to see that he got his pay ; in answer to which the defendant maintained that he was not indebted to him. George W. Hubbard testified that he was in the lumber trade, and met the defendant in the winter of 1868 and 1869, when the defendant stated that he was to get from Munday the plaintiff's lumber, but he did not state how, or with whom he had contracted for it. David E. Erhely testified that he was in Rockfield the morning that Munday went to measure the lumber in question, when the de- fendant told Munday to go and measure the lumber and ship it to him at Toledo, Ohio, and he would take it at Munday's measure- ment, and also told Munday to tell the plaintiff to go to Delphi, af- ter the lumber was measured, and get his pay from Munday. William M. Munday testified that some time in November, 1868, he told the defendant he could buy the plaintiff's lumber if the de- fendant would advance him, Munday, money on it, and the defend- ant advanced him, Munday, one hundred and twenty-five dollars ; that he was acting as the agent of the defendant in the purchase of this lot of lumber ; that he advanced the plaintiff one hundred dol- lars on it ; that when the lumber was ready to be measured at the railroad, the defendant told him to go and measure it, and he, the defendant, would pay him, Munday, for it ; that he measured it and had it shipped to the defendant at Toledo. On cross-examination, this witness testified that he was never the agent of the defendant except in the purchase of this particular 480 UNDISCLOSED PRINCIPAL. lumber ; that he did not know what facts were necessary to consti- tute an agency ; that he had a written contract with the defendant for lumber, and that the following was a copy of the contract : "Camden, Carroll County, Ind., Nov. 26, 1868. "W. M. Munday, of Rockfield, Indiana, contracts to A. J. Thomas and E. C. Rice, of Camden, Carroll county, Indiana, two hundred thousand feet of black walnut lumber, said lumber to be from one to four inches thick, or as the said Thomas and Rice may direct, and from ten to sixteen feet long, and six inches and up- wards in width ; to be free from hearts, shakes, and rotten knots, and good merchantable lumber, subject to Wheelock and Tuttle's inspection, at Toledo, Ohio. The said Munday agrees to deliver one hundred thousand feet of said lumber on cars at Rockfield or vicinity, at his own expense, by the first of June, 1869, and one hundred thousand feet by the first of October, 1869. The said Thomas and Rice agree to pay the said Munday thirty-five dollars per thousand feet, when said lumber is delivered aboard of cars. "WilHam M. Munday." That on this contract the defendant advanced to him the one hundred and twenty-five dollars ; that he told the defendant he wanted to advance this one hundred and twenty-five dollars to the plaintiff ; that he only gave the plaintiff one hundred dollars of it, and the balance he kept ; that the contract was a sham ; that he did not know that Rice had anything to do with it; that he read it carefully before signing ; that he did not know that Rice was a partner of the defendant ; that he did not know what compensa- tion he was to receive for his services as agent ; that the defendant never held him out to the world as an agent ; that he never bought any other lumber as the agent of the defendant ; that the defendant never authorized him to represent to the plaintiff that he was the defendant's agent ; that the defendant did not authorize him to buy lumber on the credit of the defendant ; and that the plaintiff had not threatened him with a criminal prosecution in the event of his failure to obtain a judgment against the defendant. Defendant's evidence : Andrew J. Thomas, the defendant, testified that Munday was never his agent for the purchase of lumber from the plaintiff or any other person, nor was ever Munday his agent for the transac- tion of any business of any character ; that he did not know that Munday was representing himself as his agent, or that he claimed to be his agent, until after the plaintiff had informed him that Mun- day had failed to pay him ; that the only contract he ever had with Munday was the written contract executed on the 26th day of No- vember, 1868, about which Munday testified; that the contract was not a sham, but was made in good faith, and the lumber sold by the plaintiff to Munday was applied by Munday on that contract ; that Rice and the witness, at the time of the execution of the con- tract, were. :n :p m ". knew the' fa''t wrote f ar. unie, v,'j: ,, ,, . . f.rm (•i 1 v. mas & Rice; that at ' ne did not k ':, 'V made his acquaint '■^^■'. 1869, • : 1 him that he shoulc: iday, wl; v'.c ma-i, that he had some iunH'vi . ""ilroau i' day), and he agreed to do so; that t er was ' to their firm, at Toledo, Ohio; liv c met Munday at De^'''^ -^c! v,- he met the plaintiff there, whereabouts of IMunday, sU . _, __: . as he had agreed to send the money by express; tha did not ask or intimate that the witness should pa\ lumber; the first intimation that the witness had of s.; tation being entertained was in the 1< n the planii; on the 7th of June, 1869; that in a - after that "; . received he met the plaintiff, who infi:/rmed him that Munda deceived him, and he could not get his money; that he ;i promised, directly or indirectly, that he would pay the plaintiff or see that he was paid ; for he had no dealings with him in any shape ; and that he had stated to the witness Hubbard that he would get the plaintiff's lumber from Munday, who had contracted with the plaintiff for it. Here the defendant offered to te- ' ' on the May, 1869, before the plaintiff had v -urn th?; acted in ba"d faith and had fail Munday made a complete settle between them, which included t' ' r;as found there was due ~^' -. and fifty-four cents, wl , which closed the a< account had not sir- the court, and t' :lijah C. Rice tc and was in November, . " ''^ness Munday and the contract in the presence 'lis; and that Munda v n: ■'! desired to mak** sut^b new of ?* it of thr .0 ntiff for his lui^ with the :.t on said r; that he did not kuow what i.: to consti- dti agency; that he had a written defendant tor i umber, and tliat the following was iitract : "Lamden, Carroll C" -i'^ Ji"''... Vi- •^W. M. Munday. . to A. J. Thomas and E. C ' c ^ ,1. '•-na, two hundred thousan i irize him to buy lumber 0,. 'idant: a^ ne plaintiff had not threateuc*: jvent of his failure to obt:;. Defendant" - ■'• 'idrew J. .., ,. u.. i. .-imiviciv vvcx^> ■ his ag<- of lum! rhe plaintiff or - ■ persoi!, ' • the transac- nv busJP' know that : he claimed ,ii that Mun- 1 day had failed to pay Iitract he ever had with 1 Munday was the writt on the 26th day of No- j| vember, 1868, about \> d : that the contract was H not a sham, but was in.f and the lumber sold by fl the plaintiff to Munday \ 1 unday on that contract ; H that Rice and the witness, le execution of the cor. H LIABILITY PRINCIPAL TO THIRD PARTY. 48 1 tract, were in partnership in the lumber business, and Munday knew the fact, for Rice wrote the contract in Munday's presence, and assisted in arranging its terms ; that he was not at that time, nor since, engaged in any business except as a member of the firm of Thomas & Rice ; that at that time he did not know the plaintiff, and only made his acquaintance in May, 1869, when the plaintiff requested him that he should inform Munday, when he should next see him, that he had some lumber at the railroad for him (Mun- day), and he agreed to do so; that this lumber was measured and shipped to their firm, at Toledo, Ohio; that on the 12th day of May, 1869, he met Munday at Delphi, and in about a week afterward he met the plaintiff there, when the plaintiff inquired as to the whereabouts of Munday, stating that Munday had not paid him, as he had agreed to send the money by express ; that the plaintiff did not ask or intimate that the witness should pay him for the lumber ; the first intimation that the witness had of such an expec- tation being entertained was in the letter from the plaintiff to him, on the 7th of June, 1869; that in a few days after that letter was received he met the plaintiff, who informed him that Munday had deceived him, and he could not get his money; that he never promised, directly or indirectly, that he would pay the plaintiff or see that he was paid ; for he had no dealings with him in any shape ; and that he had stated to the witness Hubbard that he would get the plaintiff's lumber from Munday, wdio had contracted with the plaintiff for it. Here the defendant offered to testify that on the 12th day of May, 1869, before the plaintiff had informed him that Munday had acted in bad faith and had failed to pay him, the defendant and Munday made a complete settlement of all accounts and demands between them, which included the lumber from the plaintiff; when it was found there was due Munday two hundred and eight dol- lars and fifty-four cents, which sum the defendant then paid Mun- day, which closed the account between them ; and that the state of the account had not since changed. This testimony was excluded by the court, and the defendant excepted to the ruling. Elijah C. Rice testified that he was a partner of the defendant, and was in November, 1868, when the contract referred to by the witness Munday and the defendant was executed ; that he wrote the contract in the presence of Munday, and assisted in arranging its terms ; and that ^Munday first spoke to him about it, and said that he desired to make such a contract for lumber ; that he never heard or knew of Munday claiming to be the agent of their firm, or the agent of the defendant, until after ^Nlunday had failed to pay the plaintiff for his lumber ; and that he was present with the defendant and Munday on the 12th day of May, 1869. Here the defendant offered to prove by this witness that on said 31 — Reinhard Cases. 482 UNDISCLOSED PRINCIPAL. I2th day of May, 1869, Munday, the defendant, and the witness had a full settlement of all their business transactions, including the lumber from the plaintiff, when a balance of two hundred and eight dollars and fifty-four cents due Munday was then paid him, which closed the account between them, and the state of the ac- count has not since changed, and the lumber from the plaintiff was applied on the contract referred to without objections. This testi- mony was also excluded by the court, and proper exceptions taken by the defendant. This was all the evidence given or offered in the case. In an able and learned brief for the appellant, a reversal of the judgment is asked and urged, for two reasons ; first, because the finding of the court was not sustained by the evidence ; second, because the court rejected material and proper evidence offered by the appellant. Upon a mere preponderance of evidence we cannot re- verse a judgment below. This is well settled by a long line of de- cisions of this court; and for the reasons, among others, that we only see the evidence as it is written, in a bill of exceptions, while the jury and court below meet and see the witnesses face to face, see and observe their actions and may have divined their motives, prevarication, readiness or hesitancy in answering questions ; but when, as in this case, there is absolutely no evidence to support the finding upon any known rule or law of evidence, it is our duty to reverse the judgment. The whole evidence taken together thoroughly and effectually excludes the idea of Munday's agency. But, assuming all that is claimed by the appellee to be true, Munday was only an agent for the purchase of this particular lumber, and was therefore a special agent, with no authority, according to his own testimony, to buy the lumber on credit. Upon this theory of the case, the appellant was clearly not liable, for the agent in buying on credit exceeded his authority, as he himself testified. In support of this position, we refer to the familiar principle governing this class of agencies. The principle is thus stated by Judge Story, in his Commentaries on the Law of Agency, § 126: "Before quiting this subject of the nature and extent of the au- thority of agents, it seems proper to refer again to what has been already incidentally stated, the distinction commonly taken be- tween 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. * * * In the latter case, if the agent exceeds the special and limited author- ity conferred on him, the principal is not bound by his acts ; but they become nullities, so far as he is concerned ; unless, indeed, he has held him out as possessing a more enlarged authority." The author further says, § 133, that "where the agency is not held out by the principal, by any acts, or declarations, or implica- LI^BJLMV PRINCIPAL TO THIRD PARTY. 4S3 : to be geri rcj^ard to th i'- ',...-' 't 'u:i-.t frOiii : r:i!"v- '-..•: ^ ■\-Mt', and •ound to inquire inn.' tnc : conferred. In such a i: J the principal ought to be b ot the agent, be- i.d what he has apparently aui. . ...... w,...w_.^ he has noi: ''^"'■-- ied the confidence of the other partyj who has dealt with the ;: * * * The duty of inquiri '' ' ' since the principal has never era! Mthority what?- inq'i'r;, , he trusts t ■ of the principal," And in Smith Mercantile ^- nfter discussii of a general agent to bind his pr: rill matters ■ the general scope of his implied . the author rule is directly the reverse cone particular a agent employed specially in < transaction; icr iL . of the p.'irty (]eaiuig with ^• ae to ascertain the ': of liis authority ; and if he do not, he niust abide the conseque- The same doctrine has been held by our supreme court, in ; ley V. Morrison, 7 Ind. 356, where the court say: '"'Where parties are sought to be charged for the ■^'^^ ^ + - special, and not a. general agent, it must be shown that th- done within the scope of the agency." The case of Reitz v. Marti 306, v "laser certain pr of the plaintiff, from one place to another. ' '-' to travel, and the agent ' nt had no power to sell . >ver the property fror; " of the court: '"The atever ^ " •, if his ::, le principal has neve-- ority whatever in tbi irom him to inquire '^ood faith of the agi is no conflict in the ' •' view of the ev: is not liable fo*- : iant cor, V)!"' >:"■■'■ agent ■ which : his defc had a full settlement of all their bi rh . lumber from the ■ '' ••'-^ ■ ^- • :.'vi;*- :[■ ■ ai's and fif' V. :nch close >: ' count has n applied on the. ^ mony was also . by the defendai ■ This was "" able and les is askeo of the the agei: the wa': his auth : refer to ' principk Law of -••,.■ ' "i'et^ire ^ • thority of a.t ■ ■'^^'<\6x inci.i'.- ';e case c; ... . being ap- and the latter to the latter case, if ui ity conferred on hir thc' nullitici has : out ?? ' The autaor f^ held out bv the including dred and jjaid bin f the ac- .iitiff wzs This testi- Dtions taken of the judgmen ;iuse the finding second, because offered by the e we cannot re- . - long line of de- Llu: i\:ai./ others, that we written, in exceptions, while et and see V -ses face to face, and mav Iv • :d their motives, lestions; but e to support . idence, it is our duty r thoroughly and effectually ^"'•n, assuming all that is i! ras only an agent for liber, an 1 was therefore a special ng to hi- '■•M-f! testimony, to buy theory se, the appr' :'ent in b, 'U credit excc';. :• . d. In support of this position, we erning this class of agencies. The Story, in his Commentaries on the it of the au- liat has been ' ,' taken be ■ and ti : il agent, the In'c pri: ..., ,-;rs generally. particular object. * * * Ir, :e special and limited author- ^ not bound by his acts ; but ' ^, indeed, he .ty." c the agency is not larations, or implica- LIABILITY PRINCIPAL TO THIRD PARTY. 483 tions, to be general in regard to the particular act of business, it must from necessity be construed according to its real nature and extent; and the other party must act at his own peril, and is bound to inquire into the nature and extent of the authority actually conferred. In such a case, there is no ground to contend that the principal ought to be bound by the acts of the agent, be- yond what he has apparently authorized, because he has not mis- led the confidence of the other party, who has dealt with the agent. * * * The duty of inquiring, then, is incumbent on such party, since the principal has never held the agent out as having any gen- eral authority whatsoever in the premises ; and, if he trusts without inquiry, he trusts to the good faith of the agent, and not to that of the principal." And in Smith Mercantile Law, 173, after discussing the powers of a general agent to bind his principal in all matters coming within the general scope of his implied authority, the author says that "the rule is directly the reverse concerning a particular agent, that is, an agent employed specially in one single transaction ; for it is the duty of the party dealing with such an one to ascertain the extent of his authority ; and if he do not, he must abide the consequences." The same doctrine has been held by our supreme court, in Purs- ley V. j\'Iorrison, 7 Ind. 356, where the court say : "Where parties are sought to be charged for the act of a special, and not a general agent, it must be shown that the act was done within the scope of the agency." The case of Reitz v. Martin, 12 Ind. 306, was an action to recover of the purchaser certain personal property which had been sold by an agent of the plaintiff, who had been employed to drive stock from one place to another. The stock became foot-sore and un- able to travel, and the agent made the sale. The court held that the agent had no power to sell the stock, and that the owner might recover the property from the purchaser. We quote from the opin- ion of the court : "The general rule is, that the authority of the agent, of whatever description, must be strictly pursued ; otherwise, the principal, if his agent be a special one, will not be bound. And if the principal has never held the agent out as having any general authority whatever in the premises, it is the duty of one purchas- ing from him to inquire ; and if he trusts without inquiry, he trusts to the good faith of the agent, and not of the principal." There is no conflict in the authorities ; and it is manifest that in taking either view of the evidence as to the pretended agency, the appellant was not liable for the unauthorized acts of Munday. The appellant complains of the ruling of the court in rejecting material and proper evidence offered by him. If Munday was the agent of the appellant in the purchase of the lumber, then the facts which the appellant offered to prove were material in establishing his defense. The evidence shows, as before stated (if it shows any- 484 UNDISCLOSED PRINCIPAL. thing-) , that Munday was merely a special or particular agent in this single transaction with the appellee. It also shows that the credit was given to Munday, and not to the appellant ; that Munday made two or three partial payments on the lumber ; that he did not dis- close his character as agent at the time of the purchase ; that the appellee looked alone to Munday for his pay, and only ceased his en- deavors in that direction after it became manifest that Munday had deceived him, and did not intend to pay him ; that the appellee then discovered that the appellant was liable, and addressed him a letter to that efifect, and informed the appellant that Munday had acted in bad faith, and he could get nothing out of him. The appellant then offered to prove that before the appellee had written him the letter referred to, and before the appellee had informed him that Mun- day had failed to pay him for the lumber, the appellant and Mun- day had made a complete settlement of all accounts and demands between them, which included the lumber from the appellee, when it was found there was a balance due to Munday, which the appel- lant then paid him, and which closed the account between them ; and that the state of their accounts had not since changed. The court did not permit the appellant to prove these facts, and we hold that such ruling was error, and we will let the authorities speak for us. In I Parsons Contracts 62, it is said, that "in the case of a simple contract, an undisclosed principal may show the apparent party was his agent, and he may put himself in the place of his agent, but not so as to aft'ect injuriously the rights of the other party. * * * By parity of reasoning, and undisclosed principal, subsequently dis- covered, may be made liable on such contract ; but, in general, sub- ject to the qualification that the state of the account between the principal and agent is not altered to the detriment of the principal." The case of Thompson v. Davenport, 9 B. & C. 78, is a case in point, and the doctrine is very ably and fully expounded by Lord Tenterden, who said : "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 deahng 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 afterward recover the amount from the real principal; subject, however, to this qualification, that the state of the account between the principal and the agent is not altered to the prejudice of the principal." In the same case Bayley, J., said : "If the principal has paid the agent, or if the state of the accounts between the agent here 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. * * * It is said that the r.i..i:i:Tv. ri<. 4^5 i-T ought to have asked < charged with the price of th< iie might c lost his right to cla^ 1 the lat- .' the agent, or 1 ; ' and the agent '.'u, 'd be called upoii L(, . r ^d as this is, where i) • has had the goods has not paid I case? That he should pay for solvent agent, or to the estate of the no payment in respect to "' — ' v.: j;.i, as it seems to me, all o /, that I, and the buyer ;3e the p' .'ided he has not The case cited is appj i Story on /' where, after discussing l,. ...ane of the Ik... . , • ncipal in such cases, it is 'lat "there is this qua '.ever, annexed to such liaii ;:} i the principal that nor '.he meantime, passed between the principal and the t'U- the state of their accounts, or otherwise to operate inju. ' ' the principal, if he has acted in the confidence that inclusive < given to the agent; and, moreover, that there has been no 'es on the part of the creditor." hat the evidence in the case at bar not only tends to establish, does conclusively establish the fa-' • "be credit was '■ " ' iday, there can be no question. ' e evidence f lat conclusion, it was error f ' ■ •ed, if the authorities cited ■: le with Munday, who did not !e against the appellant; th- , strangers to each other ; ..■ tuiday," whom he had kno- he looked to Munday alone ' • ' never held Munday oi ■ ged with his acts ; and, .■ -elf, the legal and n \\ to Munday. In si j^ American note to the ca: •'•"'th Lead. Cas. 358, wIil,. v ■ rs made by an agent as ^ auiiiunty, are binding on the : " results from the natural inf' o<^i \\ :^ g'iven to ivlundj 1-^ j or three part'n' . -e his characi appellee looked . deavors in that deceived hii: discovered- 1 to that effect, a in bad faith, anu then offered to 1 letter referred t dav had fail • special ■c. It ;U in thi- ,he credi' .r.e of V lay mad'; . : not di^ ase; that th; eased his en- Mi iinday had r the h- liuday iiad ■ The appe' ■ written him th edhim that Mun pliant and Mur 11 V, lant nor prr The . point, a. Tenterden, son sells gO' with a prin whom he has . but agrent for a tiA' btatc of the altered to the pn In the same case agent, or if the stai the principal would principal, the fact of an answer to the ac. to the n^-r»onsibilit\ vViiich LiiC i. : t between t' e changed. Tli' cts, and we hoi authorities speak e of a simple .iiiL,w tiiC apparent party w?. ^ the place of his agent, bi; other party. * * .11' ..c. . pal, subsequently dis on such : but, in general, sub the stat^; '1 .; account between th- :red to the detriment of the principal *?, is a case in Tided by Lord lO be a gciiCiai rule, that if a per tim.^ of \\\t Cv'.ntract he is dealin;; the person witr :: iii the transaction in the meantime hav T the amour iftcation, th;i agent is nc- "If the principal has paid dv •etween the agent here an 'e seller should call on tlv '-'-'■ of accounts, - ■ ' where he h It is said that ti; LIABILITY PRINCIPAL TO THIRD PARTY. 485 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 lat- ter paid the agent, or had the state of the accounts between the principal and the agent been such as to make it unjust that the former should be called upon to make the payment. But, in a case circumstanced as this is, where it does not appear but that the man who has had the goods has not paid for them, what is the justice of the case? That he should pa}^ for them to the seller, or to the solvent agent, or to the estate of the insolvent agent, who has made no payment in respect to these goods? The justice of the case is as it seems to me, all on one side, namely, that the seller shall be paid, and the buyer (the principal) shall be the person to pay him, provided he has not paid anybody else." The case cited is approvingly quoted in Story on Agency, § 291, where, after discussing the general doctrine of the liabilit}^ of the principal in such cases, it is added, that "there is this qualification, however, annexed to such liability of the principal that nothing has, in the meantime, passed between the principal and the agent to alter the state of their accounts, or otherwise to operate injuriously to the principal, if he has acted in the confidence that inclusive credit was given to the agent; and, moreover, that there has been no laches on the part of the creditor." That the evidence in the case at bar not only tends to establish, but does conclusively establish the fact that the credit was given to ]\Iunday, there can be no question. But if the evidence even tends to that conclusion, it was error for the court to reject the testimony offered, if the authorities cited mean anything. The contract was made with ]\Iunday, who did not disclose his agency ; no charge was made against the appellant ; the appellee and the appellant were en- tire strangers to each other; the appellee "had great confidence in Munday," whom he had known for a long time, and for a long time he looked to Munday alone for the balance due him ; the appellant had never held ]\Iunday out as his agent, whereby he could be charged with his acts ; and, aside from the testimony of the appellee himself, the legal and natural presumption is that the credit was given to Munday. In support of this position, we refer to the very able American note to the case of Thompson v. Davenport, supra, in 2 Smith Lead. Cas. 358, where it is said that, "as a general rule, contracts made by an agent as such, and within the scope of his authority, are binding on the principal, and not on the agent. This results from the natural inference that those who merely stipulate on behalf of the others do not mean to make themselves personally answerable, and that the burden of the contract ought to be borne by him who is to reap the benefit. When, however, goods are bought, or stipulations of any sort made by an agent for an un- known principal, this inference is repelled by the equallj^ natural 486 UNDISCLOSED PRINCIPAL. presumption that the other party to the transaction rehed on the solvency of the agent, whom he knew, rather than on that of the principal, of whose character and condition he was ignorant." But we refrain from a further citation of authorities. Does the justice of the case at bar require that the appellant shall again pay for what he bought, under a written contract, from Munday? He did no act which was calculated to deceive the appellee, who was a stranger to him. If the appellee was deceived at all, it was by Munday, in whom he had such great confidence, and whom he had favorably known so long. In good faith, the appellant had paid Munday ; and upon the theory of the appellee in seeking to hold the appellant liable for a debt which Munday contracted, the court ought to have permitted the appellant to prove the state of the ac- counts between himself and Munday. If the court committed no error, then the authorities cited and the reasons of the law are no longer useful, and should be consigned to oblivion and forgetfulness. It was error to find as the court did and to overrule the motion for a new trial. The judgment is reversed, at the costs of the appellee, with in- structions to grant the motion for a new trial. J. H. Gould, for appellant.^ ^Accord: Fradley v. Hyland, 37 Fed. 49. On page 50, Wallace, J., said : "The general rule is familiar that, when goods are bought by an agent, who does not at the time disclose that he is acting as agent, the seller, al- though he has relied solely upon the agent's credit, may, upon discovering the principal, resort to the latter for payment. But the rule which allows the seller to have recourse against an undisclosed principal is subject to the qualification stated by Lord Mansfield in Railton v. Hodgson, 4 Taunt. 576, and by Tenter- den, C. J., and Bayley, J., in Thomson v. Davenport, g Barn. & C. 78. As stated by ]Mr. Justice Bayley, it is, '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 the accounts between the agent here 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 has looked to the responsibility of the agent.' The principal must respond to and may avail himself of a contract made with another by an undisclosed agent. When he seeks to enforce a bargain or purchase made by his agent the rule of law is that, if the agent contracted as for himself, the principal can only claim subject to all equities of the seller against the agent. In the language of Parke, B. : 'He must take the contract subject to all equities, in the same way as if the agent were the sole principal,' (Beckham v. Drake, 9 M. & W. 98) and accordingly subject to any right of set-ofif on the part of the seller (Borries v. Bank, 29 L. T. N. S. 689). Thus the rights of the principal to enforce, and his liability upon, a contract of sale or purchase made by his agent, without disclosing the fact of the agency, are precisely co-extensive, as regards the other contracting party, if the limitation of his liability is accurately stated in the earlier cases. The qualification of the principal s liability to respond to his agent's contract, as stated in the earlier authorities mentioned, was narrowed by the interpretation adopted in Heald v. Kenworthy, 10 Exch. 739, to the efifect that the principal is not discharged from full responsibility 48? MAPLE y. RaIjL. T.;:'v Supreme Court Commission. ■tANGER, _ ^.ic's pe*^tion in one John U. Gennett, , r>i.a Dayton Railroad Company, . and April 5, 1876, collected fron: p-;;:;/, S307.80 more than v,:, said ag"e.nt, "frandnlpntlv ov( presented to ihe s of said compaii_, .. . i he never had any 1 pril, 1876." The aci. ' defense in the answ 3. Said defendant furt tcfore, to wit, at the Sen lie has bee: '0' h}- the conduLi doctrine of lI inland and in hmi^^il, but as a '^■^ .1. One of the m< , Q. B. r :, the vc the true '•^"duleiii .lUd ' . I 'Ulli ■it Six -i ^ :'i th e < ■ rcitc iiiie ;d Hi n: lany lt?rp 'he potent did agent, 5- ipal is 11'.;". him lu bo tJie priacipi: "n the fc''"'- still gave ■ .n. L. K onpf V. s: "It • think the ju Tin *c ^"^ p" uni r.iiai cue or' <.o \ue ,1 oti the of the agent, w new, m i.i of the piK,.,,pai, of \vho?e c: i/' Bat we refrain ir- ^oes the :e of the case at .ain pay : . what he bou9"li' ...jay? He did no act whicli : who was a stratv ..<,.;.., • j^ ^^^ jL,y Mu .horn he had iiit had paid ;; to hold the 1, the court te of the ac- COUi .. u., , . ..;es cited and onger u; uld be consigned c the motion ;>pellee, with in- ;):';:• c '0. Wallace, J., ' t by an agent, the seller, al- ■ou discovering th.' i.-.h allows the scll'jr to the qualification 76, and by Tenier- -- & C. 78. As be prejudiced r,,. cn.-.,,;,i not i the .. that '■■■ ' uch a state of '•.; . where he has id to Uie .:-L respond to and nvail bin nndisrlosed agent. r. \.( i. it the rule can only . •■ : :.'£;e of ■ . way , . • .. ■ , V .'•i- -iv W. 98) r/ on the part of the seller - ;!"bis . f rhc principal to ' made by his '-extensive, a; L Otiier C' • '"■ : ':- '{-■'". rhp ear!;. . ' • ' • • • • :;ni luu re"rj. liisiyiii; LIABILITY PRINCIPAL TO THIRD PARTY. 48/ MAPLE V. RAILROAD COMPANY. 1883. Supreme Court Commission of Ohio. 40 Ohio St. 313. Granger, C. J. — Maple's petition in the common pleas averred that one John D. Gennett, as agent for the Cincinnati, Hamilton and Dayton Railroad Company, at times between January 14, 1870, and April 5, 1876, collected from him, on freight bills of the com- pany, $307.80 more than was due thereon; that the company, by said agent, "fraudulently overcharged above the regular and special rates for said freight, all without the knowledge and consent of the said plaintiff, by adding a percentage of pounds of weight to the bills presented to the plaintiff, in excess of the true weights upon the books of said company, all of which was fraudulently done." And, "that he never had any knowledge of" said fraud "until the month of April, 1876." The action was begun September 30th, 1878. The third defense in the answer as amended read as follows : 3. Said defendant further answering says that said plaintiff here- tofore, to wit, at the September terms, 1876, of the court of com- unless he has been led by the conduct of the seller to make payment to or settle with the agent ; and the doctrine of this case has been reiterated in many subsequent cases, both in England and in this country, where the agent did not contract as for himself, but as a broker, or otherwise as representing an undisclosed principal. One of the more recent English cases of this class is Davison v. Donaldson, 9 Q. B. Div. 623. But, as is shown in Armstrong v. Stokes, L. R. 7 Q. B. 599, the version of Heald v. Kenworthy, while a correct interpretation of the rule of the principal's liability, when applied to cases in which the seller deals with the agent relying upon the existence of an undisclosed principal, is not to be applied in those in which the seller has given credit solely to the agent, supposing him to be the principal. This case de- cides that the principal is not liable when the seller has dealt with the agent supposing him to be the principal, if he has in good faith paid the agent at a time when the seller still gave credit to the agent, and knew of no one else. See also, Irvine v. Watson, L. R. 5 Q. B. D. 414." In Irvine v. Watson the court discredited Armstrong v. Stokes, supra, and affirmed the doctrine of Heald v. Kenworthy, supra. On page 417 of Irvine v. Watson, Bramwell, L. J., says : "It is true that in Thompson v. Davenport 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 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 no, the opinion of Parke, B., in Heald v. Kenworthy 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 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." 488 UNDISCLOSED PRINCIPAL. mon pleas of Putnam county, Ohio, recovered a judgment against the said J. D. Gennett upon proceedings thereinbefore had in said court in a certain action wherein said Simon Maple was plaintiff and J. D. Gennett was defendant, and which said judgment was for the sum of $307.80 principal and dollars interest and costs of suit, and said defendant avers that said judgment so ren- dered was for the same subject-matter and cause of action as the first cause of action in the plaintiff's petition herein set forth. That said judgment remains in full force and effect, wherefore said plain- tiff has no right to have or maintain his suit against the said de- fendant upon said first cause of action. ^ * '-^ * The third defense presents an interesting question. In presenting and collecting the freight bills Gennett acted "within the scope of his authority." The company held him out to its customers as its representative in that matter. So long as the bills he presented did not by the weights of prices noted therein furnish fair reason to question their truth, a customer of the company had full right to rely upon them as being the demands of the company upon him. On these pleadings we must presume that the bills gave no indication of the fraud. This defense admits that the fraud was the act of the company by its agent. If they conspired together to commit the fraud they were joint tort feasors; could be sued jointly or severally. In such a case a judgment, without satisfaction, against one, could not be pleaded in bar by the other. Is the rule different because the com- pany was ignorant of the fraud, and is liable only because Gennett was acting within the scope of his authority? Was Maple bound to elect between agent and principal, and having carried his election to judgment against Gennett did he thereby release the company? No case precisely in point has been cited and we have found none. We are referred by counsel for the company to Priestly v. Fernie, 3 Hurlstone & Coltman Ex. 997; Patterson v. Gandesquin, 15 East 62 ; Jones v. /Etna Ins. Co., 14 Conn. 501 ; Meeker v. Claghorn, 44 N. Y. 359; Seeley et al. v. Ryan & Co., 2 Gin. Sup. Ct. 158, and a case in i Disney. The case in Disney gives no aid here. The one in Gin. Rep. decides that the principal and agent were not jointly liable in that suit, and required the plaintiff' to elect which one he would pursue in that action, so that the other might be stricken out. The other cases cited were suits upon contracts so made by the agent that the contractee might elect whether the agent, or the principal, should be considered the party with whom he had a con- tract; and the courts held that, having carried the election as far as a judgment, the creditor had fixed the contract, and the parties thereto, permanently. Bramwell, J., in the case in 3 H. & C. 997, places his decision upon the ground just stated and upon the addi- ^A portion of the opinion is omitted. LITY PR deration that th^ Itered the ie the I )?SP ilie author cites Priestly v. tt he states, but adds "there is mu... mere taking judi^mcrt a.i;ainst the ?i (as in the case cited; "should not, fied, extinguish the debt." The cv reasons than the one r-/' liability' of the princip.-v Gennett alfected the r; reason for holding tha. . Gennett wholl)^ fails to pay no collection thereon. ( ■ ■ the company the damag Nothing but satisfaction ^ , of limitations, can release ii ■■ferred . T the pooi.. '^r such circ uway comp. ^-'-'in its L.. ■-> long a- liable to mk fiisconduct a-. ^rty; or tiie nt of his pri le We hold that the demurrer to this deieuse should have' been sus tained." 1904. SUPRE.M." CciUi: ^ >y Syckel, J. — Ti , court of Newark, r band for horses o\ brought, sued the husband claim. After judgment against t' • ^ I :■; .i[»peal. dcHveriiig the 1 'li* is Mven to a; '(1. A" here Bevmcr v. u'l:!-;,'! ; On p:r. aSS rauas en tiitnau). Ci..";nr:y. .aid J. D. Gennelt upon court in a certain ac' anri J. D. Gennett '■ 'he sum of ^ . . .^ of suit, .fill dered was fc first cause of said judgmer. tiff has r lendant . The tL and lA)]^ his < rept'. not ' against in said piaintifT cnt was : est and .-.it so ren- ction as the i-arth. That e said plain- est the said de- In presenting '.:■■■-■ m the scope of held hi <:ustomers as its ■^'^ '-ivj -. trii. . i he presented did jerein furnish fair reason to t-f ot lii i\ad full right to nands o. upon him. On ime thac lo indication to jU'„^. No case We are rci< 3 Hurlstone '• 62 ; Jone.':- N. Y. 35.. a case in i Di (I; Cin. Rep. v : in that suit. ' ^'irsue in u r cases . ..t the conL.r. , should be c, tract, and the courts as a judgment, the cro thereto, permanently. ,i]':rps lii^ 'decision upoi at the f' die act of the company '^' - ■ '-'TTimit the fraud they '. severally. In such !; >i!.usja.i;i.;H; ;tgain.st one, could not be :•. Is the rule different because the com- 'id, and is liable only because Gennett :^f his authority? Was Maple bound .ncipal, and having carried his election lid he thereby release the company? been cited avul we have found none. - "-he compn' ■ '-riestly v. F^rnie, Patterso: lesquin, 15 East 'im. 501 ; ^.ictkcr v. Claghorn, 44 8z Co.. ?. C\r\_. Sup. Ct. 158, and ret. The one r not jointly hich one he '-■■ v^M. . M..;^in. uc: stricken out. n contract.^ so made by the whether the agent, or the '.V with whom he had a con- ' the election as far ■I act, and the parties '. case in 3 H. & C. 997, LIABILITY PRINCIPAL TO THIRD PARTY. 489 tional consideration that the judgment against the agent altered the situation of the principal. But Gennett has no right to sue the company because of Maple's judgment against him. He can base no action upon the result of his own wilful fraud. We are also cited to Wharton on Agency and Agents, § 473. The author cites Priestly v. Fernie, above referred to, for the rule he states, but adds "there is much reason for the position that the mere taking judgment against the agent under such circumstances" (as in the case cited) "should not, when the judgment is unsatis- fied, extinguish the debt." The case before us presents stronger reasons than the one referred to by Wharton for holding that the liability of the principal continues. Unless Maple's recovery against Gennett affected the rights of the railway company, we can see no reason for holding that recovery a bar in its favor. So long as Gennett wholly fails to pay that j udgment ; so long as Maple makes no collection thereon, Gennett must remain liable to make good to the company the damage occasioned by his misconduct as its agent. Nothing but satisfaction by him, or by his property; or the statute of limitations, can release him without the consent of his principal. We hold that the demurrer to this defense should have been sus tained.^ GREENBURG v. PALMIERI. 1904. Supreme Court of New Jersey. 71 N. J. L. 83. Van Syckel, J. — This is a suit, instituted in the second district court of Newark, against a wife for supplies purchased by her hus- band for horses owned by her. The plaintiff, before this suit was brought, sued the husband and recovered a judgment for the same claim. After judgment against the husband, the plaintiff learned that the husband, in making the purchases, acted as the agent of his wife in lier business, and then this suit was commenced. From the judgment recovered against the wife the case is in this court by appeal. In Elliott v. Bodine, 30 Vroom 567, Judge Nixon, in delivering the opinion of the court of last resort, says : "Where credit is given to an agent, the fact of agency being unknown at the 'Accord: Beymer v. Bonsall, 79 Pa. St. 298; Tew v. Wolfsohn, 77 App. Div. (N. Y.) 454. On page 457 of the latter case Laughlin, J., says: "I see no sound basis for the application of the doctrine of election in cases of this char- acter until there has been not only a recovery against either the principal or agent, but a satisfaction of the judgment as well." Contra: Priestly v. Fernie, 3 H. & C. 977; Kingsley v. Davis, 104 ]\Iass. 178; Codd V. Parker, 97 Md. 319. 490 UNDISCLOSED PRINCIPAL. time, the party giving credit may elect which he will hold responsible, the principal or the agent ; and that a husband may act as the agent of his wife." In Yates v. Repetto, 36 Vroom 294, Judge Adams, in expressing the views of the court of errors and appeals, says : "The authorities are uniform in maintaining the doctrine that when the principal is unknown to the vendor at the time of the sale, he may, upon discov- ering the principal, resort to him or to the agent with whom he dealt at his election." To make an election binding, the party electing must have in- formation of the name of the principal in addition to the fact of the agency, for in the absence of such knowledge there could not be an election. In this case the plaintiff had notice neither of the agency nor of the name of the principal. If the plaintiff sues after he is advised of the agency, it is an elec- tion from which he cannot recede ;^ but where, as in this case, he re- covers a judgment against the agent when he is in ignorance of the existence of a principal, an action will lie against the principal unless he discharges the judgment against the agent. Story Ag., § 296; Mech. Ag., §§ 695, 700; Beymer v. Bosnall, 79 Pa. St. 298. The judgment below should be afifirmed, with costs. BARRELL et al. v. NEWBY. 1904. Circuit Court of Appeals. Seventh Circuit. 127 Fed. Rep. 656. Baker, J. — If a merchant parts with his goods to one whom he knows to be an agent, fails tO' require a disclosure of the principal, and charges the account to the agent, ordinarily the question might be raised whether the merchant has not deliberately chosen the agent for his debtor, and thereby precluded himself from afterwards pur- suing the principal. Patapsco Ins. Co. v. Smith, 6 Har. & J. (]\Id.) 166, 14 Am. Dec. 268 ; Ins. Co. of Pa. v. Smith, 3 Whart. 520, But the ninth averment of the answer, to the effect that, though ^Cotitra: Ferry v. Moore, 18 111. App. 135. , See Raymond v. Crown & Eagle Mills, 2 Met. (Mass.) 319. "Knowledge of the right to recover from the principal is essential, before suit against the agent may be regarded as an election to look to the latter alone for payment ; without knowing who the principal was, or the fact of agency, an intelligent election was impossible. To constitute an election, there must be something to indicate an intention, with full knowledge of the facts, to give sole credit to the agent and to abandon all claim against the principal." Ladd, J., in Smith Groc. Co. v. Potthast, 109 la. 413, 418. V PRINCIPAL TO THIRD PARTY. plaintiffs knew 1 cd-i \\ pnri- .... in the suggested — as ad- f that s never required to elect . has concurrent rights ■ .f of a satisfaction bv on, -.c-- tn Fn-'-?'' -■ ■' - ■ H:, If T that h^ ve accepted the order a; vLirred no liabiHty; or tliey their debtor and have infer and, if Todd had made i defendant not ; bnt, in <'■■ ■?y could not is true that j;. on the joint and several conirai no pretense of such a cnfi r ■ that they accepted and '--^.nsaction "■3 not >; a.nd princi; rr'*dit, one disco\ nsidcr his debtor ; an.1 that nothing ♦: one (ac- Mist iV..'. (1 of C' . OS. On the other hand ]• f'-r; ': >; I'i^ isls that such a sello: :)g.the principal iipare the standi; lose whom he v Ac time to • '-•■ ••'t, and th^.. ; abandon b i. And defencia: '/",""■''■ ' • nt. lodd would have in- r the seller asce. . . ■ 1 s the goods and e he seeks to exact ■ t that t! the principal or the age of hi.- ••" '• Iri ' Repetto. \Vi> of the CO!' Iform in m?. iink-nown to the ve- ering the princ!'-,i1 at his election. To niake ar formation nf t that a h the ag-ent expressing lorities I ipal is upon discov- '•■!U'j.i have m- thc fact of the .'uld not be an l<)0. Appea agency nor of is an elec- ase, he re- .nce of the .rincipal unless V Ag., § 296; !. 298. and charge 1-e raised wt'Cii "^r his debtor, JJut :. > to one whom he :o of the principal, the question might : the agent -vards pur- Har. & J. \'\ hart. 520. • -ttect that, thougfh ; ;'a : i^ erry v. >{ agency, •. vTnss.) 3Jij :I is trstciiiiai, before to look to the latter ■vas, or the fact tiite an election, of the jst the LIABILITY PRINCIPAL TO THIRD PARTY. 49I plaintiffs knew Todd was acting as an agent for an undisclosed prin- cipal, the custom of the trade authorized them to look to him in the first instance, prevents defendant from claiming that the suggested question is available here, and leaves plaintiffs in a position as ad- vantageous as that of a merchant who sells on credit in the belief that the purchaser is acting for himself. Plaintiffs' contention is that such a seller, on discovering the prin- cipal, is never required to elect whom he will consider his debtor ; that he has concurrent rights of action against both ; and that nothing short of a satisfaction by one, or at least a judgment against one (ac- cording to English cases, which seem to be based on the English rul- ings that a judg-ment against one joint tort feasor is a satisfaction as to all), will exhaust his right to pursue the other. In support of this proposition, and of collateral arguments, plaintiffs adduce many cases. On the other hand, defendant insists that such a seller, on discov- ering the principal, may take a reasonable time to investigate and compare the standings of principal and agent, and thereupon must choose whom he will hold as his debtor and abandon his right to choose the other ; and that he cannot hold both. And defendant cites numerous authorities as a basis for his argument. If Todd, when placing the order with plaintiffs, had informed them that he was simply acting as agent for defendant, plaintiffs could have accepted the order as defendant's, and Todd would have in- curred no liability ; or they could have refused to take defendant as their debtor and have informed Todd that they would look to him. and, if Todd had made no objection, he would have been bound and defendant not ; but, in dealing with the agent of a disclosed principal, they could not have held both without an agreement to that effect. It is true that plaintiff's could have declined to take the order except on the joint and several contract of Todd and defendant; but there is no pretense of such a contract, for the averment of the complaint is that they accepted and acted on defendant's order ; and the bare transaction of a merchant's selling to the agent of a known principal does not establish a joint and several, or several liability of agent and principal, but evidences only one contract, one liability, one credit, one debtor, whose indentity is determined by the seller's elec- tion, which he must make at the time. Respecting election, what difference in reason does it make whether the seller ascertains the identity of the principal before he delivers the goods and extends the credit, or after delivery but be- fore he seeks to exact payment? In the first place, we understand plaintiffs to agree that the seller must elect. In the second, the seller manifestly has passed on the credit of but a single person. If, before payment, he finds out who the principal is. it is just that he should be able to hold the agent, for the agent offered his own credit and it was accepted. It is also just that the seller should be permitted to 492 UNDISCLOSED PRINCIPAL. abandon the right that he had in the first instance to pursue the ag-ent, and to hold the principal, for the contract of purchase was in reality the principal's. When, after delivery, but before seeking to exact payment, the seller learns the identity of the principal, he has an opportunity for investigating and comparing the standings of agent and principal, just as he would have had if he had known the principal before delivery. We apprehend no rule of law that war- rants the conclusion that the seller must elect in the one case and not in the other. We perceive no solid reason why the law, in behalf of the seller, who in both cases has really contemplated and contracted for a single credit only, should in the one case more than the other create a contract under which the agent and principal stand as joint and several, or several, obligors. The decision in Beymer v. Bon- sall, 79 Pa. 298, and expressions in some other cases, to the effect that one who sells to the agent of an undisclosed principal may, on discovery of the principal, pursue either or both until he has obtained satisfaction (as though they were joint tort feasors), do not meet our approval. Objection is made to the answer on the ground that the issue of election or no election is one that must be determined by the jury from the evidence and the instructions of the court. If it were per- missible for a defendant to tender the issue by the naked averment that plaintiff elected to hold the contract as the agent's, and if, under such an answer, the uncontradicted evidence establish acts of the plaintiff from which but one conclusion could legally be deduced, then the court would have the right to direct the verdict ; and, if the same acts be set forth in an answer and confessed, we think the court may likewise draw the conclusion. bo plaintiffs' acts constitute an election ? In two instances plain- tiffs procured conditional executions in advance on their solemn dec- laration to the courts that the broken contract was Todd's — not Todd's and the defendant's, but Todd's. In another instance plain- tiffs acted as court and sheriff, and turned Todd's money into their own till. Now they declare with equal solemnity that the same broken contract was defendant's — not defendant's and Todd's, but defendant's. We do not mean to assert that the mere bringing of _ an action against Todd would be inconsistent with their proceeding later against defendant. If the action were begun before they learned of defendant's principalship, certainly they should be per- mitted to dismiss, and sue defendant. And if they proceeded against Todd by reason of mistake or fraud, or the like, they might seek re- lief from their act, give up the chase they had entered upon, and return to the cross-roads. But here, under no misapprehension of comparative standings, but with full knowledge of the whole truth of the situation, plaintiffs not merely seized Todd's money on the basis that the contract was his, but they insist upon their right to retain it, and to say that the contract is Todd's, throughout LIABIL lie in which ; ,;rr'.s but one Ui, , ' ■. 'is urge that, f ' I with T 1 require . lib. arc confusing el • er of remedies or of > ; . of the defendant, but is found plaiiitiflf to trifle with the courL.. .. , ' hnn^'. grows out of. a consideration of are distinct defenses, :;' ' ' ' ' it would be inequitabU if he shows that the [ law tlic f two courses, has ta'i iiie one t; i'im.^ Til A i^vlgment 1= :-' '■ ''' ipcxD, Supreme Cou; Cobb, J. — Carter sued tlie r;; ly for rom the breach of a contr" * 'i^r^'n whir' ntered into with the plai^^ the trial tb. 1 evidence a receipt signe ■ ' ' he following is a copy : ": rticles in apparent good o jupon attached, to be trci etting forth the articles sh mce from the point from nation was thirty miles : wenty-four hours, which ^ ew and in good conditit: * "Election implies a delibe'- 1", or a particular n • ■ Co. V. Colombian L: discussion of doctrnir '^ee also Miss. Valley C note in 17 Harv Law Rev. 414, enti nr TTpnisr!'"-.-;! P: 'vc'ii.'l " OMPANY ' cept one" >, .1., ' ii2 Ky. Rep. 894, ?medy against T''NDI?Cr,OSFr> rRIK . ..... >ig-ht that i:_.. -liij the and to hold the ; ise was in •' :;'r. the principal's. seeking to exact payment, the H r ;he naked averment '; acrent's, and if, under UI-. ..vv, , v.uviice establish acts of the conclusion could legally be deduced, ' ight to direct the verdict ; and, if the « er and confessed, we think the court tiffs proci^ laration to c.. Todd's and thv tiffs acted as c own till. Nov broken contrac defendant's. \ > action against To ' '■' ' 'ri gainst defer ' of defenda: ;:'i.n a to dismiss, arui i'odd by reason of mi si ' ^m their act, give i. to the cross-roads, comparative standings, bu' of the situation, plaintit:. . on the basis that the contract wa n election? Tn two instances plain- ions in advance on their solemn dec- broken contract was Todd's — not Todd's. In another instance plain- • turned Todd's money into their equal solemnity that the same lefendant's and Todd's, but 'i:;t the mere bringing of an ' '-ir proceeding 11 before they should be per- " ded against ^ht seek re- icd upon, and ..pprehension of of the whole truth ed Todd's money V insist upon their LIABILITY THIRD PARTY TO AGENT. 493 the time in which they assert that the contract is defendant's. To our minds but one interpretation can be given to this conduct. Plaintiffs urge that, inasmuch as the answer fails to aver that de- fendant settled with Todd before they sued defendant, it would be no hardship to require defendant to pay them. It seems to us that plaintiffs are confusing election with equitable estoppel. Election, whether of remedies or of defendants, has no regard to the situation of the defendant, but is founded on a public policy that forbids a plaintiff to trifle with the courts. Equitable estoppel, on the other hand, grows out of a consideration of the defendant's state. They are distinct defenses, and he who pleads election need not show that it would be inequitable to permit the plaintiff to recover ; it is enough if he shows that the plaintiff, having by law the right to take either of two courses, has taken and holds to the one that leads away from him.^ The judgment is affirmed. Section 3. — Liability of Third Party to Agent. CARTER V. SOUTHERN RAILWAY COMPANY. 1900. Supreme Court of Georgia, hi Ga. 38. Cobb, J. — Carter sued the railroad company for damages resulting from the breach of a contract of shipment which the defendant had entered into with the plaintiff. On the trial the plaintiff introduced in evidence a receipt signed by an agent of the defendant, of which the following is a copy : "Received from W. R. Carter the following articles in apparent good order, contents and value unknown, as per coupon attached, to be transported to W. R. Carter, McRae, Ga.," setting forth the articles shipped. The plaintiff testified that the dis- tance from the point from which the goods were shipped to their des- tination was thirty miles ; that they should have been delivered in twenty-four hours, which was a reasonable time ; that the goods were new and in good condition when delivered to the defendant ; that ^ "Election implies a deliberate intention, — a definite purpose to accept one debtor, or a particular remedy, in lieu of another." Wallace, Cir. J., in Atlas S. S. Co. V. Colombian Land Co., 102 Fed. Rep. 358, 360. See discussion of doctrine of election in Hoffman v. Anderson, 112 Kj'. 893. See also Miss. Valley Const. Co. v. Abeles (Ark.), 112 S. W. Rep. 894, 896. See note in 17 Harv. Law Rev. 414, entitled "Election of Remedy against Agent or Undisclosed Principal." 494 UNDISCLOSED PRINCIPAL. they were not delivered by it at the point to which they were shipped until twenty-five days had elapsed from the time they were delivered to the defendant ; and that when delivered some of the goods were in such a damaged condition that they were rendered worthless, and all of them were more or less damaged. Just before leaving the wit- ness-stand the plaintiff stated : "The goods belonged to my wife, Mary Carter. She owned them, and I had the goods in my charge as her agent." There being no further evidence for the plaintiff, the court, upon motion of defendant's counsel, granted a non-suit on the ground that the goods alleged to have been damaged did not be- long to the plaintiff but to his wife. To this judgment the plaintiff excepted. The question, therefore, presented for decision is whether or not the plaintiff could maintain the action in his own name. It is an elementary principle that an action on a contract must be brought in the name of the party in whom the legal interest is vested ; and that the legal interest in a contract is in the person to whom the promise is made and from whom the consideration passes. 15 Enc. P. & P. 499, 500 ; Civil Code, § 4939. In the present case the plain- tiff, although in reality he occupied the relation of agent of his wife to take charge of the goods shipped, was named both as the con- signor and consignee in the contract of shipment, with no reference whatever therein to the fact of his agency. Under such circum- stances the action could be maintained in his own name. Generally, it is true, an agent has no right of action upon a contract made by him in behalf of his principal, but he has a right of action in his own name "where the contract is made with the agent in his individual name, though his agency be known." Civil Code, § 3037 (3). Cer- tainly the action could be maintained where the fact of agency and the name of the principal are both concealed by the agent. In such a case the agent is, in contemplation of law, the real contracting party, to whom the promise of the other party was made and who is entitled to enforce it. Mechem Ag., § 755; Story Ag. (9th ed.), § 393- But the plaintiff was the consignor of the goods shipped. The contract was made with him, and he is primarily liable for the trans- portation charges. The carrier dealt with him as the owner of the goods, and could not, in an action by the plaintiff to recover the goods, dispute his title, unless the title of the real owner was sought to be enforced against the carrier. Civil Code, § 2286. In the case of Haas v. Railroad Company, 81 Ga. 792, suit was brought by Haas upon a contract or bill of lading made by the defendant with one Ayres. It was held that "the bill of lading for the flour not having been indorsed to plaintiff by the party in wdiose favor it was issued, the former could not maintain an action against the company upon it." It appears from the record in that case that Ayres was the con- signor and Haas the consignee. The present Chief Justice says in 495 >f lading- was ' 'ne, Haas, between lie may not be the actual w.c privity of contract betww.. - (cient foundation on which to base ' by the authoritie ''- ' ' • A owner, recoven- ;';tract of carriag-e, . 1 the consignor i • 'St. It would seei; from this, i": the consignor for i>t would h^ :. ' on by the owner le him. Tb. _ urts. have, so far a: \. -Ihered to .1;- that an action for a bre, '^e made wit! consignor may be maintained b} hui;. La L'avu v. James, 5 Burr. 2680, a decision rendered in T770, it n'H'^ held thn.t "Action lies against carrier in name of c^ him and was to pay him." The question . ^ . : case, and the court reached the conclusion 'ed. Lord Mansfield said. in the opinion which he ""^' --se: "Thi'^ '" •" --': upon the agreement bei md the ' intiffs were to pay him. ' • vhe persons who agreed decision, as above stated, w^ courts, and there being in t the rule therein announced, : ute,.the law of this state." In Moore V. Wilson, i Tei case just referred t^ > i it was immaterial v -^ignor or the consignee, ■ 'er for the hire. In Jos , action by the consignor . i Lord Ellenborough, who n. 1 lies. Tbere is a privity iKJt ClCilV .■xx>: t.i- w-l "y-five da y.s^ ed frdn lo tla 311 C ''I . m were mo: ..... otand the nl.i; Mary Carter. as her agent. the court, upoi the ground tli long to the v excepted. or not fl: an e.]'. action ( '^r^-\^ flu (he T) a ca ■ party, u- entitled t' - 393- But the plr, contract was r rlation char.^ -. and could :. ■• -. dispute his to be enforced ag:;' of Haas v. Railroad (. upon a contract or bi', Vyres. It was held thai. 1)een indorsed to plaintiff • the former could not niaii' it." It appears from the u signor and Haas the cotist • :> ■: oiupped i'c delivered in . all ig ilie wit- mv wife, charge v ijlaintifif, non-suit on did not be- Jie plaintiff ision is whether vvn name. It is riust be brought - is vested ; and 1 a to whom the asses. 15 Enc. " case the'plain- of his wife as the con- nent, with no reference Under such circum- own name. Grcnerally, • !.. ■< .' .. up<3n a contract made by ut he has a right of action in his own lade with the agent in his individual -^wn." Civil Code, § 3037 (3). Cer- ihe fact of agency and i by the agent. In such ion of law, the real contracting )ther party was made and who is r-, § 755; Story Ag. (9th ed.), r>{ the goods shipped. The liable for the trans- it- the owner of the to recover the ner was sought <6. In the case ■ • i-fht by Haas iit with one iiour not having ir it was issued, I the company upon ■■' Ayres was the con- M Chief Justice says n LIABILITY THIRD PARTY TO AGENT. 495 the opinion : "The record does not show that this bill of lading was assigned or indorsed by Ayres to Haas. This being- true, Haas, under our code, could not bring suit on the contract made between the railroad company and Ayres." The courts of both this country and England are now, with a few exceptions, all agreed that where the consignor makes the contract of shipment with the carrier, he may bring an action for loss of or injury to the consignment, al- though he may not be the actual owner of the property. In such a case the privity of contract between the carrier and consignor is a sufficient foundation on which to base the action. It is also well set- tled by the authorities that where a consignor, who is himself not the real owner, recovers damages from the carrier for a breach of the contract of carriage, the recovery enures to the benefit of the owner, and the consignor is regarded simply as the trustee of an express trust. It would seem to follow necessarily from this, that a recovery by the consignor for a breach of the contract would be a bar to an action by the owner in tort for the injury done him. The English courts have, so far as we are aware, uniformly adhered to the rule, that an action for a breach of a contract of carriage made with the consignor may be maintained by him. In Davis v. James, 5 Burr. 2680, a decision rendered in 1770, it was held that "Action lies against carrier in name of consignor, who agreed with him and was to pay him." The question was squarely made in that case, and the court reached the conclusion above indicated. Lord Mansfield said, in the opinion which he rendered in that case : "This is an action upon the agreement between the plaintififs and the carrier. The plaintiffs were to pay him. Therefore the action is properly brought by the persons who agreed with him and were to pay him. "This decision, as above stated, was uniformly adhered to by the English courts, and there being in this state no statute law to conflict with the rule therein announced, it became, by force of our adopting stat- ute, the law of this state." In Moore v. Wilson, i Term. Rep. 659, the doctrine announced in the case just referred to was reaffirmed ; and the court held further that it was immaterial whether the hire was to be paid by the con- signor or the consignee, as the former, was, in law, liable to the car- rier for the hire. In Joseph v. Knox, 3 Camp. 320, it was held that an action by the consignor would lie. The opinion was rendered by Lord Ellenborough, who said : "I am of opinion that this action well lies. There is a privity of contract established between these parties by means of the bill of lading. That states that the goods were shipped by the plaintiffs, and that the freight for them was paid by the plaintiffs in London. To the plaintiffs, therefore, from whom the consideration moves, and to whom the promise is made, the de- fendant is liable for the non-delivery of the goods. After such a bill of lading has been signed by his agent, he cannot say to the shipper 496 UNDISCLOSED PRINCIPAL, they have no interest in the goods, and are not damnified by his breach of contract. I think the plaintifTs are entitled to recover the value of the goods, and they will hold the sum recovered as trustees for the real owner." In Dunlop v. Lambert, 6 CI. & F. *6oo, the House of Lords held : "Though, generally speaking, where there is a delivery to a carrier to deliver to a consignee, the latter is the proper person to bring the action against the carrier, yet if the con- signor make a special contract with the carrier, such contract super- sedes the necessity of showing the ownership in the goods, and the consignor may maintain the action, though the goods may be the property of the consignee." The "special contract" referred to in the above quotation was simply a bill of lading declaring that the goods were to be delivered to Matthew Robson, "freight for the said goods being paid by William Dunlop & Co.," the plaintiffs. The case of Dawes v. Peck, 8 Term Rep. 330, is sometimes cited as authority for a contrary rule. That case is thus commented upon and distin- guished by Judge Turley in the case of Carter v. Graves, 9 Yerger 445, 450: In that case "an action on the case was brought by a con- signor against a common carrier for not safely carrying according to his undertaking, in consideration of a certain hire and reward to be therefor paid, two casks of gin from London to one Thomas Ady, at Hillmorton, in Warwickshire. The court determined that, if a con- signor of goods deliver them to a particular carrier bv the order of a consignee, and they be afterwards lost, the consignor cannot main- tain an action against the carrier and that the action can only be maintained by the consignee. In this case there is no contract with the consignor by the carrier for the delivery of the articles ; the freight is not paid by him ; the property is delivered to a carrier spec- ified by the consignee ; and, more than all, the court, in the opinions delivered, refer to the cases of Davis and Jordan, 5 Burr. 2680. and Moore and others v. Wilson, i Term Rep. 659, and recognize them as sound authority." A leading American case is Blanchard v. Page, 8 Gray 281, where, after an elaborate review of the authorities. Chief Justice Shaw reached the conclusion that "the shipper named in a bill of lading may sue the carrier for an injury to the goods, although he has no property, general or special, therein." The reasoning upon which this ruling is based seems to be unanswerable, and the decision ought to be accepted as decisive of this question. It must not be lost sight of that the present action was based upon a contract. If the action had been based upon the tort of the carrier in delivering the goods in a damaged condition, then a question entirely different from that involved in the present case would be raised. In such a case it would seem that the right of action is to recover for the injury in the inter- est or right in the property, and the shipper, if not the owner, could not brinsf such an action. The distinction between such a case and ?vD PARTY TO AGENT. 497 •ne like the : as pointed out in Fi >mpany, ' ' ■ " ithorize '>. there let'd LfC no exjjiesb couiia t'le iction may be maintained ^ j-v- r> an(i receipt of the goods for c action c aas iieen begun by the consignee; an> '"nor v - ^ the ■-um recovered in trust for the c irter v. Graves, 9 Yerg. 445, it was held: "A consigii'^r i, - " ' """ the case for the loss or injury of the prt showing that he has a general 1 right i all cases maintain an action oj -it upon the property safely, he having mani- liie same, ano bound for, the; consideration." In T' i er v. Raihv j Wis. 81, 91, it was said: "The si i party in iv^ — ract, and it does not lie with Im<- v -ho made u v him, to say, upon a breach of it, t' .ot entitled tc amages, unless it be shown that tr. ee objects ; for, \. >. hat, it will be presumed that the .. as commenced and >; cuted with the knowledge and consent oi the consignee, and for enefit. The consignor or shipper is, by operation of the rule, re- ;cd as a trustee of an express trust, like a factor or other mercan- :,<..- agent who contracts in his own name on behalf of his principal.'' rVnotiier well-considered case, in which an elaborate review of the au- ities is made, is Southern Exr iny v. Crr-"'" - ''•■-^ In Great Western Railroad C -Comas ruled : "Where goods are ' the consignor may sue fo e. He has such a special proi L of action. So may the rea' <:C. It was ruled further in -^ first obtains damage- ■' ■ "" ,e others. , e have not und' ' this question. . (ecisions above referred v made in the present cn'^e 8) ; Dows V. Cobb, 12 ' to. 539; Atchison v. Ra idine, ii Harr. & McH. 4 'la. loi ; Mo. Pac. Rwy. . Co. V. Scott. 4 Tex. Ci v. t-.mrich, 24 111. App. 24%: 61 Til. 263; Brill V. Rail w a 22 — Reinhard Ca- 496 UNDISCLOSED PRINCIPAL. inia tV, the^' have no interest in the goods, and .ch of contract, I think the jlaintiffs vaiue of the goods, and thev for the real owner." In House of Lords held ■ ' a delivery to a can proper person t(* ' signor make a •=> sedes the nee consignor n property of t above qiK^'"' were to ' beijv Dav lam an acti. A leadi .., after an ela reached the mav sue the ti..> i»e accepted a^ ■ ' :h^t the prese;r 1 based upor' aged conditi iin-olveci in the presei^ seem that the right or est or right in tlie pr not bring such an actiuu. ' & Lo., me piai; 330, is '-rimetime'^ ;:n^inified by his recover the i as trustees 600, the lie there is 'alter is the • t if the con- iitract super- ■ goods, and the vxis may be the ef erred to in the g that the goods •r the said goods iits. The case of ' '♦•ed" as authority "1 and distin- ^ es, Q Yerger . >n the case was brought by a con- - r not safely carrying according to f a certain hire and reward to be ' ■ . one Thomas Ady, at : mined tliat, if a con- DarUciilar carrier bv the order of us lost, the consignor cannot main- rier and that the action can only be In this case there is no contract with for the delivery of the articles ; the "' ' -t\ ■■ 'clivered to a carrier spec- die court, in the opinions iJavis aiKl Jordan, 5 Burr. 2680, and Term Rep. 659, and recognize them liRrd v. Page, 8 Gray 281, where, iliorities. Chief Justice Shaw ,- ..--.^d in a bill of lading . although he has no • upon which -•cision ought not be lost si 'jilt 'xt. If the acti";- ■ delivering the goods V diflferent from that • such a case it would e injury in the inter- not the owner, could ihc Ki. reen such a case and LIABILITY THIRD PARTY TO AGENT, 497 one like the present was pointed out in F"inn v. Railroad Company, 112 Mass. 524, where it was ruled, in effect, that in order to authorize an action by the consignor, who is not the owner of the goods, there need be no express contract between him and the carrier, but that the action may be maintained upon the contract implied from the deliv- ery and receipt of the goods for carriage, if no action ex delicto has been begun by the consignee ; and that the consignor will hold the sum recovered in trust for the consignee. In Carter v. Graves, 9 Yerg. z^5, it was held : "A consignor cannot maintain an action on the case for the loss or injury of the property consigned, without showing that he has a general or special right thereto, but he may in all cases maintain an action of assumpsit upon a contract to deliver the property safely, he having made the same, and paid, or become bound for, the consideration." In Hooper v. Railway Company, 27 Wis. 81, 91, it was said: "The shipper is a party in interest to the contract, and it does not lie with the carrier, who made the contract with him, to say, upon a breach of it, that he is not entitled to recover the damages, unless it be shown that the consignee objects ; for, with- out that, it will be presumed that the action was commenced and is prosecuted with the knowledge and consent of the consignee, and for his benefit. The consignor or shipper is, by operation of the rule, re- garded as a trustee of an express trust, like a factor or other mercan- tile agent who contracts in his own name on behalf of his principal." Another well-considered case, in which an elaborate review of the au- thorities is made, is Southern Express Company v. Craft, 49 Miss. 480. In Great Western Railroad Company v. McComas, 33 111. 185, it was ruled : "Where goods are shipped upon a railroad for transporta- tion, the consignor may sue for their non-delivery, though he be but a bailee. He has such a special property in the goods as to give him a right of action. So may the real owner sue, and so may the con- signee. It was ruled further in that case that whichever of these three first obtains damages, it v/ill be in full satisfaction of the claims of the others. W^e have not undertaken to collate here all of the cases bearing upon this question. ]\fany of them, perhaps nearly all, are cited in the decisions above referred to. The following also support the rul- ing made in the present case : Cobb v. Railroad Company, 38 Iowa 601(8) ; Dows V. Cobb, 12 Barb. 310; Harvey v. Railroad Company, 74 Mo. 539; Atchison v. Railway Company, 80 Mo. 213; Moore v. Sheridine, 11 Harr. & McH. 453 ; Southern Express Co. v. Caperton, 44 Ala. loi ; Mo. Pac. Rwy. Co. v. Smith, 84 Tex. 348 ; Mo. Pac. Rwy. Co. V. Scott, 4 Tex. Civ. App. 76 ; Ohio & Miss. Railroad Co. V. Emrich, 24 111. App. 245 ; Northern Line Packet Co. v. Shearer, 61 111. 263; Brill V. Railway Co., 20 U. C. C. P. 440; Moran v. 32 — Rein HARD Cases. 498 UNDISCLOSED PRINCIPAL. Packet Co., 35 Me. 55 ; Cantrell v. Pacific Express Co., 58 Ark. 487; Goodwyn v. Doug-less, Cheeves (S. C.) 174; 3 Enc. P. & P. 826; Hutchinson Car., § 724 et seq. ; Parks v. Railway Co. (Tex.), 30 S. W. 708; Galveston Ry. Co. v. Barnett (Tex.), 26 S. W. 782; Davis V. Jacksonville South-Eastern Line (Mo.), 28 S. W. 965. There are a few cases which seem to hold that the sole right of action against a carrier for loss of or injury to goods as in the consignee, notwith- standing a contract of carriage was made with the consignor. It would not be profitable to attempt to reconcile these decisions. Some of them, however, will be found upon examination to refer to actions ex delicto brought by the consignee as the real owner of the goods. Those which do hold that the consignor cannot maintain an action for a breach of contract made by the carrier with him are, as has been seen above, against both principle and the great weight of au- thority, and ought to be disregarded. So far, however, as the pres- ent case is concerned, the plaintiff was both consignor and consignee, and the real owner was a party entirely unknown in the transaction. We prefer, however, to place our decision upon the ground that as the plaintiflf was the agent of the real owner of the goods and had charge of the same, he was authorized to enter into a contract of shipment with the carrier ; and that having entered into this contract, the legal interest therein was vested in him, and he could sue for its breach. The decision of this court in Lockhart v. Railroad Co., 73 Ga. 472, does not conflict with anything ruled in the present case. The plaintiflf in that case had no contract with the carrier, and no in- terest whatever in the property. It was contended by counsel for defendant in error that the plain- tiff in the present action failed to make out a prima facie case of lia- bility on the part of the defendant for injury to the goods, and that, this being so, even if the court erred in placing his decision granting a non-suit on the ground indicated in the order, the judgment should be affirmed, as the right result was reached, though the wrong rea- son may have been given for it. We think the plaintiff did make out a prijiva facie case of liability; and consequently the judgment of non-suit was in any view of the case erroneous, and a trial upon the merits should be had. Judgment reversed. All concurring, except Fish, J., absent.^ ^ See also Georgia, etc., Ry. Co. v. ]Marchman, 121 Ga. 235. "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 contracting party, notwithstanding his well-known position as agent only. But this right of an agent to bring an action, in certain cases, in his own name, is subordinate to the rights of the principal, who may, unless in particular cases, I LIABILITY THIRD PARTY TO AGENT. 499 COLBURN V. PHILLIPS and' Others. 1859. Supreme Jup^'' • r.,.-v ..■:- m ..:.-: ..-r,-. Vction of contract upon the '.-nt: 'Salem, Oct. .., 1853. Agreed with Jesse Co; .. -,_■ .rough to ship say two hundred tons of rough stone, from one to two tons each, from PhilHps' Wharf, to the p' >. > >■. .Norfolk, Va., at the rate of $1.75 per ton of fourteen cubic feet, and as soon after they are received as a vessel can be ', the measurement to be made up from the marks upon ea^ PriiLLiPS, Goodhue & Bowker. "It is understood that Mr. Colburn shall not be liab' - '" '^ ■'>'-•' f^--- penses at Salem, except the charge of freight above - To be delivered at Norfolk, Va,, to the order of Gault .- P., G. C The substance of the declaration and of the demurrer ti^v :n which the case was argued in ^^Titing, are stated in the opinion. iloAR, J. — The plaintiff made a written contract with the defend- ants to ship two hundred tons of stone from Phillips' Wharf in Salem to Norfolk, Va., at the rate of $1.75 a ton, as soon after they were received as a vessel could be procured, lo be delivered in Nor- folk, to the order of Gault &: Brother; the plaintiff r ' ' " 'e for any expenses at Salem, excer^" the *'reirriit as - .1. The plaintiff in his declaration nee tha e the contract on behalf and for • , .^... -^ ..e firm - "i: Brother, and their assigns, Gault & LTiristy; that he dt :e .stone at Phillips' Wharf; but th" ''^' "iefendants did not - _,. ic at the price agreed, hut at a higl; , and that Gault & Christy paid the higher rate, under pr.jtCbi, on a part of the stone, and on. the rest were compelled to p;*^- 't ^v process of the court of ad- •.. 'r • '- 'ivers co=' counsel fees. ' ■,( . :■ : .\ :nts file a. ■''■ some of the mate legations of the declaration ir answer a demurrf,r, which now comes before us / .. •. .. Four causes of demurrer are i. That b own showing the only cayse of acL.; ' " ' j , ai^u not to the plaintiff. In support of m the where the agent has a lien or some other vested r- thus suspend or extinguish the right of Oic . Rand, TTi Ind. 206, 2T0 "■"'■"-- ^ "" ■ -ie wiv.) . an ac- l\ou WT 11 m .'I', .^TitT im' [fr'um.!'.. '■,,ckct Lc, 35 2\ic. y . racinc : . 56 Ark. 487 : ooi I he goods and had .::Ler into a contract of . ing entered into this contract, , Hi him, and he could sue for its t in Lockhart \ . Railroad Co., 73 . bing ] "uled in the present case. .. act with the carrier, and no in- tirt ' bilLl, . this beii' a non-snii < be afiirmed. son may ha^ 1 a prima /tit/, non-suit was in merits should b< judgment rev: i for defendant in error that the plain- I to make out a prima facie case of lia- idant for injury to the goods, and that t erred in placing his decision grantin;: ' ■: \ ''1 !' rder, the judgment should I :td, though the wrong rea- ■ k the plaintiff did make out , •- . i.'-equently the judgment of ase erroneous, and a trial upon th- ^h, J., absent.' .'so Georgi rv'A ,i'j;ent may .>; and is expressly r. comracvmj' yariy, nutvv this vi-jht .^f "V. n-^crf- ♦ sub' ■ ; ^ .11 W 1 i I ■ 1 1 ■_ ' known to act .^iisible pri"-'"'' • tmg party; T .er, or as a prr 1 as agent only. Bir. in his own name, i- uiicss in particular casc=. LIABILITY THIRD PARTY TO AGENT. 499 COLBURN V. PHILLIPS and Others. 1859. Supreme Judicial Court of Massachusetts. 13 Gray 64. Action of contract upon the following agreement : "Salem, Oct. 6, 1853. Agreed with Jesse Colburn of Tyngsborough to ship say two hundred tons of rough stone, weighing from one to two tons each, from Phillips' Wharf, to the port of Norfolk, Va., at the rate of $1.75 per ton of fourteen cubic feet, and as soon after they are received as a vessel can be procured, the measurement to be made up from the marks upon each stone. Phillips, Goodhue & Bowker. "It is understood that Mr. Colburn shall not be liable for any ex- penses at Salem, except the charge of freight above specified. P., G. & B. "To be delivered at Norfolk, Va., to the order of Gault & Brother. P., G. & B." The substance of the declaration and of the demurrer thereto, upon which the case was argued in writing, are stated in the opinion. Hoar, J. — The plaintiff made a written contract with the defend- ants to ship two hundred tons of stone from Phillips' Wharf in Salem to Norfolk, Va., at the rate of $1.75 a ton, as soon after they were received as a vessel could be procured, to be delivered in Nor- folk, to the order of Gault & Brother; the plaintiff not to be liable for any expenses at Salem, except the freight as above specified. The plaintiff in his declaration alleges in substance that he made the contract on behalf and for the benefit of the firm of Gault & Brother, and their assigns, Gault & Christy ; that he delivered the stone at Phillips' Wharf ; but that the defendants did not ship it at the price agreed, but at a higher price ; and that Gault & Christy paid the higher rate, under protest, on a part of the stone, and on the rest were compelled to pay it by process of the court of ad- miralty, with divers costs, expenses and counsel fees. The defendants file an answer, denying some of the material al- legations of the declaration ; and insert in their answer a demurrer, which now comes before us for adjudication. Four causes of demurrer are assigned, i. That by the plaintiff's own showing the only cause of action belongs to Gault & Christy, and not to the plaintiff. In support of this it has been argued on the where the agent has a lien or some other vested right, bring suit himself and thus suspend or extinguish the right of the agent." Niblack, J., in Rowe v. Rand, 11 1 Ind. 206, 210. In Miller v. State Bank of Duluth, 57 Minn. 319, it was held that one who deposited money as agent for an undisclosed principal cannot maintain an ac- tion for it in his own name after the termination of the agency. 500 UNDISCLOSED PRINCIPAL, part of the defendants that a promise made expressly to one who is only the agent of another, from whom the consideration wholly moves, will not support an action in the name of the agent. Un- doubtedly some support to this doctrine can be found in the dicta of judges in several reported cases, and there seems to be some confusion and inconsistency upon the subject in the cases them- selves. But upon a careful examination it may appear that, while the reasons given for some of the decisions cannot be well reconciled, the decisions are for the most part harmonious, and can be sustained upon sound principles. In Gilmore v. Pope, 5 Mass. 491, which was an action upon a subscription for shares in a turnpike company, with a promise to pay the assessments to the plaintiff, who was an agent of the com- pany, the plaintiff was non-suited, and Parsons, C. J., said: "The action cannot be maintained in the name of a mere agent of the cor- poration, as in this transaction the plaintiff has alleged himself to be ; there being no consideration, as between the agent and sub- scribers, to support an action of assumpsit." This remark of the chief justice would seem to assume that, to support a promise, the consideration must always move from the party to whom the prom- ise is made. On examining the case, the promise is found to be a part of a contract to take and pay for shares in the turnpike road, in consideration of being admitted as associates in the corporation. This is very clearly a contract with the corporation. The promise is to pay the assessments to Gilmore or order ; but there is not in terms any promise to Gilmore himself. The apparent purport, then, as well as the legal effect of the instrument, was an agreement with the corporation from whom the consideration proceeded. It would therefore stand as a promise to A, upon a consideration received from A, to pay a sum of money to B ; upon which it is now well settled in this commonwealth that B can maintain no action, except under certain peculiar and limited conditions. Mellen v. Whipple, I Gray 317; Field v. Crawford, 6 Gray 116; Dow v. Clark, 7 Gray 198. In Buffum v. Chad wick, 8 Mass. 103, the court decided that where a note was made to the plaintiff, describing him as agent of the Providence Hat Manufacturing Company, the action cauld be maintained by him, although the objection was suggested that he was a mere agent, and that the consideration moved from the com- pany alone. They distinguish the case of Gilmore v. Pope, which was cited by the defendant's counsel, and observe that in that case "the contract was directly with the corporation." In the case of Commercial Bank v. French, 21 Pick. 486, it was decided, that a promissory note made to "the cashier of the Com- mercial Bank," the note being the property of the bank, was a con- tract with the bank, on which the corporation might sue. Gilmore LIABILITY TUl! CJ AGK.\ V. i\rp- 1 c/ •.; as sustaining- ti the doctiiue u.at, by a just con... . . terms of description, the contract was made In Eastern Railro.i' -■ ■' "'ict, 5 Gray that upon an order i- A. Neale. 1 "R.'silr.-.ad Company/' tne <__ est. r.iig-ht sue in its own na ine<] aiid discussed, and we are ■ decision ; but no question arose i' not have been maintained, if In Gunn v. Cantine, i'^ ^ given to an attorney, ui upon a contract belc" fact that there wa? to the attorney ; and oiil v ' irom. the instrument was t' that which we have sul Pope. There is a class of cases i 10 a public officer, in his ofh' ists upon used, as :,-. >.ieter^i .f the E. ,:, proiii; ■ al ; a vi>. . to the case has. been held that a p; dcity, must be enforced by in the name of the public body for which he acts. Pigott v. Thomp- son, 3 Bos. & Pul. 147; Irish v. ""' ' "I. 171 ; Garland v. Reynolds, 20 Me. 45. The ^m '.1? to that which holds that one who signs a ■ not per- sonally responsible upon it ; • ' it is D'Jt is, that a just construction of th the principal. In Thatcher v. Winslow . that an agent, not Ir sory note, cannot su he names in support ->i more v. Pope, before C( this, that putting a pron dorsed in blank, withov. tO" bring a suit upon it:, .e ;k^: to him as will : ci jbt of its corr But in Stor}' or. note is endorsed m "r collection, the agent lua ' nd in § 161, that "if a;. . his own name, for th U a;, the principal, may sm: i doctrine is stated in the brrj c who is wholly :!1 not ^:. vion in t L Un- -r.iiif- - doctri ! ... :;ie dicta cases, ;• to be some 1 ■ >■ 1 i.ii-in.ii; .lau il ..-„ iU, i^ases them- selves. But iipoi that. while ■ ;:ed. :ned upon bOuilu p In Gilmor. Mass. 491, whi 1 action upon a subscripi: a turnpike Il a promise to pay the r^ '■'■•-intiff, wl .ier ; but there is not in ,iirnbcif. 1 he apparent purport, then, e instruT'-.! 't vr^s an agreement with le consi(] roceeded. It would to A, ui- • a ■.uusideration received ey to B; upon which it is now well ■"' aintain no action, except .IS. Mellen v. Whipple, ' ; Dow v. Clark, 7 Gray Mass. 103, the court decided that •''^ing him as agent of the action cauld be ■ted that he . n the com- which at case .:. . • I'ick. 486, it was he cashier of the Com- ; .y of the bank, was a con- oration might sue. Gilmore ,t-;tT ,-1. LIABILITY THIRD PARTY TO AGENT. 50I V. Pope is cited as sustaining the decision ; but the case rests upon the doctrine that, by a just construction of the language used, as terms of description, the contract was made with the bank. In Eastern Railroad v. Benedict, 5 Gray 561, it was determined that upon an order payable "to D. A. Neale, president of the Eastern Railroad Company," the corporation, being the real party in inter- est, might sue in its own name. The authorities were fully exam- ined and discussed, and we are satisfied with the correctness of the decision ; but no question arose in that case whether the action might not have been maintained, if brought in the name of the payee. In Gunn v. Cantine, 10 Johns. 387, the action was upon a receipt given to an attorney, upon an undertaking to collect the money due upon a contract belonging to his principal ; but the court notice the fact that there was no express promise to pay the money collected to the attorney ; and only decide that the promise implied by law from the instrument was to the principal ; a view consistent with that which we have suggested in regard to the case of Gilmore v. Pope. There is a class of cases in which it has been held that a promise to a public officer, in his official capacity, must be enforced by a suit in the name of the public body for which he acts. Pigott v. Thomp- son, 3 Bos. & Pul. 147; Irish v. Webster, 5 Greenl. 171 ; Garland v. Reynolds, 20 Me. 45. The principle is analogous to that which holds that one who signs a contract as a public officer is not per- sonally responsible upon it ; though the ground upon which it is put is, that a just construction of the contract makes it the contract of the principal. In Thatcher v. Winslow, 5 Mason 58, Air. Justice Story held that an agent, not having any legal or equitable interest in a promis- sory note, cannot sue as endorsee upon it. The only authorities which he names in support of the doctrine are Gunn v. Cantine and Gil- more v. Pope, before cited. If the effect of the decision is merely this, that putting a promissory note into the hands of an agent, en- dorsed in blank, without any authority express or implied to him to bring a suit upon it, will not constitute such a transfer of the note to him as will support an action upon it in his name, we have no doubt of its correctness. Sherwood v. Roys, 14 Pick. 172. But in Story on Agency, § 394, it is said that "if a negotiable note is endorsed in blank, and sent by the owner to his agent for collection, the agent may sue thereon in his own name as endorsee ;" and in § 161, that "if an agent should procure a policy of insurance in his own name, for the benefit of his principal, the agent, as well as the principal, may sue thereon." In §§ 392, 393, 395, 396, the doctrine is stated in the broadest terms, that whenever the contract is made in writing expressly with the agent, and imports to be a contract personally with him, and also where he is the only kno^vn 502 UNDISCLOSED PRINCIPAL. or ostensible principal, and therefore is, in contemplation of law, the real contracting party, he may sue in his own name. And such is the general current of the authorities ; and we are satisfied that, to support an action upon an express promise, it is in general imma- terial whether the consideration move from the promisee or from another. In Baxter v. Read, cited in Dyer, 272b, note, it was "adjudged that where Baxter had retained Read to be miller to his aunt, at ten shillings per week, this will support an action on the case ; for al- though it is not beneficial to Baxter, it is chargeable to Read." In Goodwin v. Willoboughby, Pop. 178, Doderidge, J., says: "If a stranger saith, 'Forbear such a debt of J. S., and I will pay it,' it is a good consideration for the loss to the plaintiff." In Sargent v. Morris, 3 B. & Aid. 277, it was held, that the con- signee could not sue for damage to goods shipped on board the de- fendant's vessel, the consignee being only the agent of the consign- ors, and having no present interest in the goods at the time of the injury. But there the bill of lading stated the reciept of goods from the consignors, and undertook "to deliver the same to you, and in your name, according to custom and usage, to Mr. Sargent or his as- signs, paying freight," etc. In Sims v. Bond, 5 B. & Ad. 393, and 2 Nev. & Man. 616, Lord Denman asserts that "it is a well-established rule of law that where a contract, not under seal, is made with an agent in his own name, for an undisclosed principal, either the agent or the principal may sue upon it." In the case at bar, the contract was with the plaintiff in his own name, no other principal was disclosed, and it was executed on his part. We think the promise of the defendants was upon a sufficient consideration, and may be enforced by the person to whom it was expressly made. 2. It is said the declaration does not charge the defendants with the direct consequence of their breach of agreement, but for an ex- cess of freight paid by the plaintiff. The contract and the breach of contract are expressly set forth. The damages occasioned thereby may or may not be correctly claimed or estimated, and it is no cause of demurrer. 3. It is objected that the declaration charges the defendant with the costs and expenses of the suit in admiralty. But this is only a statement, in part, of the damages ; and although mistaken, does not affect the right to maintain the action. 4. The declaration does not state any demand upon the defend- ants for an allowance for the excess of freight, or a demand on them for the stone. No such statement is necessary. The gist of the action is the omission to furnish a vessel to carry the stone at the agreed price. When the defendants had shipped the stone at a Olill'&Vi 503. murrer EVRIi a:vd vVIGHTi: Supreme Court of Ohio. The defendant in errc in the couv ■cal estate agent, was, on ^. ^ril, A. D. 18.- >ne Webster to sell the farm of the latter. The autli' vriting, signed by the part---^ -'-^ was to continue for ou<- vas stipulated that the far [ not be sold for less thai' 1 dollars per acre, and n ' fendant in error ' i;at the farm brought over ^e said surr' 3s ■■: or his services, and the purchase money, to c of ihiriy- even dollars per acre, he was to pay over to sa; -r. Subsequently the defendant in error made an agreement with the of which the following ilaintiflfs in error for the sale of s !b a copy: "This article of agreei >Tovember, A. D. 1865, by and ■ N^wnship of Jefferson, Ashtabnl.i and Samuel Ev i counties, Penn; i hat the party of the first part h:; >art the Luman Webster fari ■ teres of land, it being located ing the same upon which he vhich is placed in my hands 'I the 1st day of " .11 be given. Tb iarni, or their equivalent part. H. N. Bancroft, S This agreement was dul Bancroft filed his petition lave sustained by the breacli ;:nd Wightman. He states, ii red into this ist day of H. N. Bancroft, of the nd state of On in, r.f li.e IS aajn- .is aii:i;nee lu LRINClPAi.. or ostensiWe principal, real contracting party, the general current of support an action upc teriai whether the ■. another. In Baxter v. that where Ba: shilling's per v though it i-^ TT In Goo'i a stranger is a good ■ In <^ signer In name, no part Wr 2. It n the direct cess of fre contract arc ■■ may or may n nurrer. it is obj'. ihe costs and ■, statement, in ] affert the righ' 4, The declaia ants for an allow them for the stone. the action is the on. the agreed pri No •- -ion . aitemplation of law, the sue in his own name. And such is >rities; and we ar- .--riiJ^^+ied that, to ess promise, it . ral imma- - -'vr ■-"- •:- '! --e or from ;•, 2j2b, 'adjudged i to be !■ .xunt, at ten . t an action on the case ; for al- . it is chargeable to Read." p. 178, Doderidge, J., says: "If 'bt of J. S,, and I will pay it,' it ^ to the plaintiff." -Vid. 277, it was held, that the con- ■ to goods shipped on board the de- ^i' only ti ■){ tlie consign- ::i 111- ihe time of the of goods from ,. .-c.int: to you, and iii .fe, to Mr. Sargent or his as- 393, and ? Nev. & Man. 616, Lord ■ rule of law that where agent in his own name, the agent or the principal may vas with the plaintiflf in his own -ed, and it was executed on his lefendants was upon a sufficient the person to whom it was not charge the defendants with .■1-1 (,f .n '.^(Mnent, but for an ex- •^ and the breach of ine occasioned thereby med or . . and it is no cause •Jcfendant with But this is only a niih-friken, does not Miciu,! up'Jii the def end- eight, or a demand on ij necessaiy. The gist of essel to carry the stone at 1 shipped the stone at LIABILITY THIRD PARTY TO AGENT, 503 higher rate, they had broken the contract declared on. Demurrer overruled, and case remitted/ EVRIT AND WIGHTMAN v. BANCROFT. 1871. Supreme Court of Ohio. 2.2 Ohio St. 172. The defendant in error, the plaintiff in the court below, being- a real estate agent, was, on the 3d of April, A. D. 1865, employed by one Webster to sell the farm of the latter. The authority was in writing, signed by the parties, and was to continue for one year. It was stipulated that the farm should not be sold for less than thirty- seven dollars per acre, and that the defendant in error should have all that the farm brought over and above said sum as compensation for his services, and the purchase money, to the extent of thirty- seven dollars per acre, he was to pay over to said Webster. Subsequently the defendant in error made an agreement with the plaintiffs in error for the sale of said farm, of which the following is a copy: "This article of agreement entered into this ist day of November, A. D. 1865, by and between H. N. Bancroft, of the township of Jefferson, Ashtabula county, and state of Ohio, of the first part, and Samuel Evrit and E. E. Wightman, of Venango and Crawford counties, Pennsylvania, of the second part, witnesseth : That the party of the first part has sold to the party of the second part the Luman Webster farm, of one hundred and forty-three acres of land, it being located in the township of Jefferson, and be- ing the same upon which he now lives, and being the same farm which is placed in my hands for sale, for the sum of $6,500, all to be paid on the ist day of February, A. D. 1866, at which time pos- session will be given. The sugar-house fixtures are to go with the farm, or their equivalent paid in cash to the party of the second part. H. N. Bancroft, Samuel Evrit, E. E. Wightman." This agreement was duly stamped. Bancroft filed his petition to recover the damages he claimed to have sustained by the breach of this contract on the part of Evrit and Wightman. He states, in his petition, the amount of his dam- ^ Compare Considerant v. Brisbane, 22 N. Y. 389. It was held in Rhoades v. Blackiston, 106 Mass. 334, that the agent's right to sue on the contract made in his own name would not pass to his assignee in bankruptcy. 504 UNDISCLOSED PRINCIPAL. ages to be "twelve hundred and nine dollars, that being," as he avers, "the amount of money which belonged to him as his commis- sion for selling said farm." A demurrer to the petition having been overruled, the case was submitted to a jury on an inquiry of damages. On the trial the plaintiff gave no evidence as to the value of the land. The evidence introduced by the defendants showed the value of the farm on the 1st day of February, A. D. 1866, to have been from forty-eight dollars to fifty dollars per acre. The defendants below asked the court to charge the jury that the true rule of damages was the difference between the contract price of the farm and its value at the time of the breach of the contract, or on the ist day of February, A. D. 1866; and that if the jury should find that the value of the farm at said time equaled or ex- ceeded the price agreed to be paid by said defendants in the con- tract, the jury should return a verdict for the defendants. This instruction the court refused; but told the jury in effect, among other things, that if the defendants had kept and performed their contract, the plaintiff's interest therein would have been the difference between thirty-seven dollars per acre and the amount the said defendants agreed to pay for the same, and that the defendants, by their non-performance or refusal to perform, could not lessen the plaintiff's interest in said contract, and that the rule of damages would be the difference between thirty-seven dollars per acre for the farm and the price the defendants agreed to pay for it. The verdict was in favor of the plaintiff for $1,429.64, on which, after overruling a motion for a new trial, the court rendered judg- ment. The object of the present petition in error is to obtain the re- versal of this judgment. White, J. — The original action was not an equitable one brought for the specific performance of the agreement for the sale of the farm, and for the apportionment of the purchase money between the plaintiff and his principal. It was strictly an action in per- sonam to recover damages from the defendants for the breach of the contract. We deem it unnecessary now to inquire whether there was tech- nical error in overruling the demurrer to the petition. The bill of exceptions clearly discloses the real character of the case. The claim which the plaintiff sought to enforce against the defendants consisted of the compensation to which he would have been entitled, under his agreement with his principal, if the agreement with the defendants for the sale of the farm had been performed. As his loss in this compensation resulted from the default, as he alleges, of the defendants, he claims the right to make them respond in dam- rjge> t..- ti' inaj be uec. ■ ha? nc -V Th.. nts wer ng- for tb^-' . „idon. Tlji... '■V'eir o- inent, and the r ne s;i;. - L'luught in the name ^ . ov iii : :uV' ( as one of the contractin.;. t ag-ent ■ t for the sale of proper^ f personally, acquires no iidii he would acquire • contra t property. In this case it appears f r^ value tlian the contract pr>ct: only nominal if the principal h. the farm he contra. • ,, case v-':is tried and 's C' 'on as a; " his etu' it- '-'■''\ upon th . _. u;ir agree....... . . .m their default, became liable to hmi tor the loss of such coi: tion, although if there had been no agency the- - ' ■ been liable for nominal damages. We think the law imposes on them no such liabii.iv. IL^ lest, ci such compensation was not the ii3tiir-?i and proximate result of the breach, by the defendants, of th'^ .ict. I ui^-ment reversed, verdict ^. md cause renjar unj mri T? IQOI. SUPREM' 1^^ \SE for neghgence gu;h Trial by jur}-. C. J., presiding. A \ judgment on the verdic For the nature of the demurrer, see this case, 7; .—The r ent on rchased 01 of dari; course. 5^4 twelve i vers, "the amount oi siua for selling said : A demurrer to th; 1 to a jv ■;;ave no iUiTuduced b\ 1st day of 1 dollars to fiit The d-t, : true ruK of the f: or on t' T: ver,'- W tor the ^; farm, an<> the plaintiff -"':-in to recv act. '. e deem ' error h\ .s cleaii Lich the ■ consisted of the c. i-inder his agreenicu. adants for the s: • d' !!:ii -ing," as he his commis- ase was trial the evidence farm on the .1 forty-eight I . ^. ihe jur}^' that the •erence l)etvvt^n the contract price Lc time of the breach of the contract, ly, A. D. i8f/.; and that if the jury the farr paid b ualed or ex- in the con- : verdict fui the deteiidants. refused: l.-vl uAi} the jury in effect, 'e defend kept and performed ii. .^ interest ll >,...,, vvould have been the seven dollars per acre and the amount the and that the defendants, V r form, could not lessefi that the rule of damages \'en dollars per acre for I endants agreed to pay for it. the plaintiff for $1,429.64, on which, a new trial, the court rendered judg- petition in error is to obtain the re- Lion was not uii equitable one brought if the agreement for the sale of the ■ient of ti;. -.iirohase money between :. It v\ ly an action tn per- '•--' ' ' •• ■''■'■ '-r"pch of the ' iuqu:r' liiere was tech- •rrer t'-> on. The bill of the case. The ■-■: the defendants : he would have been entitled, '.!, if the agreement with the 'ad been performed. As his ;be default, as he alleges, •ke them respond in dam- II LIABILITY THIRD PARTY TO AGENT. 505 ages to the extent that may be necessary to repair it. We think he has no such right. The defendants were no parties to the agreement providing for this compensation. Their hability is to be ascertained from their own agreement, and the rule of damages is the same whether the suit is brought in the name of the principal or in the name of the agent as one of the contracting parties. An agent entering into a contract for the sale of property of his principal, in which he binds himself personally, acquires no greater rights against the purchaser than he would acquire if he was contracting for the sale of his own property. In this case it appears from the proof that the farm was of greater value than the contract price ; hence the damages could have been only nominal if the principal had sued, or if the plaintiff had owned the farm he contracted to sell. But upon the theory on which the case was tried and disposed of in the court below, as the plaintiff's compensation as agent was, by the terms of his employment, made dependent upon the defendants fulfilHng their agreement, they, on their default, became liable to him for the loss of such compensa- tion, although if there had been no agency they would only have been liable for nominal damages. We think the law imposes on them no such liability. The loss of such compensation was not the natural and proximate result of the breach, by the defendants, of their contract. Judgment reversed, verdict set aside, and cause remanded.^ HOLDEN V. RUTLAND RAILROAD COMPANY. 1901. Supreme Court of Vermont, 'j^i Vt. 317. Case for negligence in the sale of a mileage book. Plea, not guilty. Trial by jury, Caledonia county, June term, 1900, Taft, C. J., presiding. A verdict for the defendant was directed and judgment on the verdict was rendered. The plaintiff excepted. For the nature of the declaration, which was held sufficient on demurrer, see this case, ']2. Vt. 156. Watson, J. — The mileage-book in question was purchased of ^ In United States Telegraph Co. v. Gildersleve, 29 Md. 232, it was held that an agent who contracted for an undisclosed principal may recover full measure of damages for breach of the contract. On page 246, Alvej', J., said : "He, of course, sues and recovers as trustee for his principal." 5o6 UNDISCLOSED PRINCIPAL. the defendant's ticket agent at Burlington by the plaintiff as the agent of Dana O. Coles, but the plaintiff did not make known his agency nor disclose his principal. In selling such tickets, the pur- chaser's name is required to be signed to the contract printed in the back part of the book. The plaintiff, being requested by the ticket agent thus to sign the book in question, signed his own name thereto, instead of that of his principal. By force of the contract it is the duty of the selling agent to enter the purchaser's name in the front part of the book, as the person to whom the tttket is issued and entitled to transportation thereon. In the place for so doing, the selling agent entered the name of "A. F. Holden" instead of "D. F. Holden," the plaintiff's name signed in the back part of the book as the purchaser. The ticket was then used by the plaintiff in going from Burlington to Rutland and return. Upon his return, he gave the book to Coles and paid him for the number of miles used. About two months afterwards the plaintiff hired the book of Coles, and with his daughter attempted to go from Burlington to Rutland on another journey. The daughter's name had then been inserted in the front part of the book by Coles as a member of the pur- chaser's family and a person entitled to transportation thereon. In making this journey over the defendant's road, the plaintiff offered the book for the transportation of himself and daughter, but the conductor refused to accept it, and they rode without paying fare to Rutland, where the plaintiff was arrested at the request of the conductor and detained for some little time before being released. The plaintiff claims that his name should have been entered in the front part of the book as the person to whom the ticket was issued, and that to enter the name of "A. F. Holden" instead was negli- gence by the ticket agent ; and further that the damages suffered by the plaintiff by reason of the conductor's refusal to accept the book for transportation was the result of this negligence for which the defendant is liable. The court below ordered a verdict for the defendant, to which the plaintiff excepted. Was this error? is the sole question. The plaintiff purchased the mileage-book for Coles and as his agent, but he neither disclosed his agency nor his prin- cipal. In these circumstances it is a well-settled rule of law that an action for a breach of contract not under seal may be brought in the name of either the agent or the principal ; in the name of the agent because he has been treated by the defendant as the other party to the contract ; in the name of the principal because he is the person really interested in the contract, for whose benefit it was made, and with whom it is considered in law as made. Dicey Part. 136; Sims V. Bond, 5 B. & Ad. 393 ; Lapham v. Green, 9 Vt. 407. But that this rule of law shall not be so exercised as to work an injustice to the other party to the contract, other rules incident thereto are equally well established. One of these is that if the Li.'.t'ilvl I l i 1 J ll\i.l 1- in his own ■N which ar' ^ so of any detense that would be iranspoT rsons entitled to ■ ■^■-i^«-- are thus .' in case av:iji i.- ^ who is V itt on r. good agai.i. . >-v- principa; .; - ■ JDicey Part. 142 ; 2 Smith's L. IV.- - transportation thereon; that only the perse entered are lawfully entitled to such use of the 1 of any desired change or ' ' in the names of - same will be made on a, to the ticket ag' where the book was sol . ■ ' )io change in :■ names will be made excev ion to the ticket . company from whom it no change in will be recognized unless .._. . „-.... When such a i is sold, the name of the purchaser is required to be signed. t-i contract in the back part of the book ; and when thus signed, and mc ticket is accepted by him, he is bound by the terms of the contract. -' hilly V. St. Paul, etc., Ry. Co., 66 Minn. 153; Krueger v. Chi- 445- 64 Am. St. 487; Baylon v. Plot I V. Cunard S. S. Co., 153 :,: 0, etc., Ry. Co., 68 Minn. ;-,! ; ings R. R. Co.,. 132 U. S. .Jass. 553, 25 Am. St. Rep. Co., 7 Utah 118. When the plaintiff hired xlu tion, he informed Coles that '.\-1i. ; ; uoon her name was ii - . : . iig that her name n^- as a member of the pin transportation upon the t: it could be done only by th- ticket was sold. Neither t^ • insert it. '" ' '■ ' cts are usiiaM ; ." ..nd are good .' ■: the company :«v ':,.-, a of bearer, su been named are reasonable, fraud upon the railroad comj pose, the name of any one 1. -,-,---;nv's road might be in: • ;.' -essor as he saw fit, the. poses, g ' ' The ,. Sontheni P.ac. P.. and pur- ?r, therefore, LNDISCLOSED PRIl'. the defendant's ticket agen arr-.-: of Dana O. Coles, I- agency nor disclose his pri chaser's name is required t back part of the book. ^' agent thus to sign th- thereto, instead of thai it is the duty of the sc the front part of the ! and entitled to trai the selling agent e "D. F. Holden," t^ book as the pun: going from Bif gave the book About two ' and with ^ on ano'' lington. by the plaintiff as the d not make known his •■ such f- 'kots, the pur- 0(i to the CO!' ;;;!.'. ir, being req, ;n question, sigiv principal. By io-. lit to enter the ik -son to -s\' on. In . of "A. :.. le signed i. j^et was then nd and retur... i^ front part of ti and th-r t,, ,miV:, gence ' - by the p; book for i the defendant defendant, to sole question. and as his age: dpal. In these cii action for a breac the name of eithe agent because he ' party to the contra^ person really interet,tc inaiic, and with whom 136; Sims V. Bond, 5 i But that this rule of .0. injustice to the other par theretr - — ••-■i' --!i ■ ited in the .. ;.;. the ticket his own name of the contract Ki-chaser's name in tttket is issued for so doing, riolden" instead of ' ' hack part of the the plaintiff in ■ |M.n his return, he ': him for the number of miles used. he plaintiff hired the book of Coles, i to go from Burlington to Rutland hter's name had then been inserted V Coles as a member of the pur- tl to transportation thereon. In ■'"t's road, the plaintiff offered self and daughter, but the u, aiiu. nicy rode without paying fare ntiff was arrested at the request of the some little time before being released. - name should have been entered in the K^rson to whom the ticket was issued, •' "A. F. Holden" instead was negli- lil further that the damages suffered he conductor's refusal to accept the result of this negligence for which urt below ordered a verdict for the i'f excepted. Was this error? is the ■ ■ -book for Coles 1 ; ;.;.iicy nor his prin- " il -settled rule of law that an ' ■ -'' ' may be brought in in the name of the , ' --' -:=; the other ^e he is the benefit it was Ic. Dicey Part. ! \-. Green, 9 V't. 407. • ■xercised as to work an itract, other rules incident '.,.,-, , + th!"<-'° '"^ that if the i LIABILITY THIRD PARTY TO AGENT. 507 action is brought by the agent in his own name, the defendant may- avail himself of those defenses which are good against the agent who is the plaintiff on record; also of any defense that would be good against the principal in whose interest the action is brought. Dicey Part. 142 ; 2 Smith's L. C. 428. By selling the mileage-book the defendant contracted with the purchaser to accept the coupons therein for transportation of the purchaser, the members of his family, members of his firm, or sales- men of the firm, whose names are entered by the selling agent of the company in the fore part of the book as persons entitled to transportation thereon ; that only the persons whose names are thus entered are lawfully entitled to such use of the book; that in case of any desired change or addition in the names of such persons, the same will be made on application to the ticket agent at the station where the book was sold ; and that no change in such name or names will be made except on application to the ticket agent of this company from whom it was purchased, and no change in name will be recognized unless made by such agent. When such a ticket is sold, the name of the purchaser is required to be signed to the contract in the back part of the book ; and when thus signed, and the ticket is accepted by him, he is bound by the terms of the contract. Rahilly v. St. Paul, etc., Ry. Co., 66 Minn. 153; Krueger v. Chi- cago, etc., Ry. Co., 68 Minn. 445, 64 Am. St. 487; Baylon v. Hot Springs R. R. Co., 132 U. S. 146; Fonseca v. Cunard S. S. Co., 153 Mass. 553, 25 Am. St. Rep. 660; Drummond v. Southern Pac. R. Co., 7 Utah 118. When the plaintiff hired the book to make the journey in ques- tion, he informed Coles that his daughter was going with him, whereupon her name was inserted in the book as before stated. Assuming that her name might properly have been there inserted as a member of the purchaser's family, thereby entitling her to transportation upon the ticket, under the provisions of the contract it could be done only by the ticket agent at the station where the ticket was sold. Neither the plaintiff nor Coles had any right so to insert it. Such tickets are usually sold at lower rates than common regu- lar tickets, and are good for transportation between all stations on the road of the company selling them. Unless sold as good for transportation of bearer, such provisions of the contract as have been named are reasonable, material, and important in preventing fraud upon the railroad company. Without provisions for that pur- pose, the name of any one intending to make a journey over the company's road might be inserted in a mileage-book by its owner or possessor as he saw fit, thereby making it, to all intents and pur- poses, good for transportation of bearer. The insertion of the name of the plaintiff's daughter, therefore, 508 UNDISCLOSED PRINCIPAL. was a material alteration of the contract and a fraud upon the de- fendant. Indeed, her name was thus inserted for the express pur- pose of enabling the plaintiff to make a fraudulent use of the ticket. It is an established principal of law that a material alteration of a written contract by one of the contracting parties without the con- sent of the other operates as a discharge of the contract ; "because," says Lord Kenyon in the leading case of Master v. Miller, 4 T. R. 320, 2 Eng. R. C. 669, "no man shall be permitted to take the chance of committing a fraud, without running any risk of losing by the event, when it is detected." Chitty on Con. 868; Bigelow v. Stil- phens, 35 Vt. 521 ; Derby v. Thrall, 44 Vt. 413. In Bellows v. Weeks, 41 Vt. 590, this rule is said to be "founded in public policy, and tends to prevent tampering with written instruments by the parties, who are under a temptation to do so; the forfeiture of the original instrument operating in the nature of a penalty." This defense being available in an action brought by the agent in his own name, the verdict was properly ordered. Let judgment be affirmed. Start, J., concurs in the result. HAYDEN V. ALTON NATIONAL BANK. Appellate Court of Illinois. 29 111. App. 458. Green, P. J. — Appellant brought suit against appellee to recover an amount of money deposited with the latter by appellant in the name of "William H. Hayden, Agent." The cause was tried by the court without a jury, under a plea of the general issue and notice of "set-off," stating that the defendant would insist the money sued for was the property of George D. Hayden and not plaintiff's, and came to and was received by plaintiff as age;it for George D. Hay- den, and was deposited with defendant by plaintiff in his name, but as agent for George D. .Hayden, who, before the commencement of this suit, was and is indebted to defendant on three notes, two for $1,000 each and one for $300 (describing notes), signed by George D. and Sarah Hayden, which notes became due before the commencement of the suit, and offers to set off and allow against demand sued for so much of said money due from said George D. Hayden to defendant as will be sufficient to satisfy and discharge such demand. No findings of law were requested on behalf of either party. The court found the issues for defendant and ren- I dered iudG'inen: THIRD PA]^ laintiff for 509 : against mis aci:oiint; drawn by appel' ,.04, to recover ^ llant thai nt ■vss received, S;^:^'- . :' .isUic&b ill AitOil pt/tr-'d, eiving no one in ch.' _. after his departure his brother, as he says, at the instance of creu.w charge of the business as the agent ■ '.1 it should be asceri ■' •2 he was so acting, a •.lit with appellee , t;>A between Septer to the credit of that for $40 and one for v- by the bank, leaving a br. is brought. It is claimea uu jjcnan was made by him in his own name : and entered by appellee up-n its of it was deposited and to be app : •-'i with the consent of the bank, and under this state of facts ap- p-Ii^e had no lien, as a bank, upon the sum deposited for the debt of George D. Hay den, and had no legal right to apply such balance of the deposit as a credit upon ''-^ - - "^ '— ge D. and Sarah Hayden, or set off such note a , ce. The state of facts so claimed to exist wa^ " . of ap; ' its behalf it is claimed the vn ed bv r ; '. ley of George D. Hayden. a ;::. svn to defendant by plain ti tf , defendant in depositing this men: den in conducting the businr - was derived. The evidence •' i' ; 's by the respective parti' . 5?,t,v the witfc?'^'?^ and h be gi\en the testimony of er. and has settled that conflict favor of defendant below. .'■ ur'ess it is : " ''■ ■-•.med all i the court below vvos George P Hnvden, D. Has ,iey, derived trc: :s at the tinic t.» the cc .epositea v. as i)V 5oS IV V ^ material altera^ ni the de- iHt. Indeed, her ess pur- y^^c of enabling t'^^- -. ^- .:l iic. (iie ticket. It is an establish <. •,v that -J. teration of a •en contract ■ the con- , of the other i;cause," says Lord K 4 T. R. 320, 2 Eng. I ^ chance of committji' ■ '.t running any risk of losing by the event, when .'hitty on Con. 868; Bigelow V. Stil- phens, ^s V Thrall, 44 Vx. ■ 413. In Bellows v. Wec^;- ■■■ ' said to be "founded in public policy, and '•\g with writft.n instruments by the >■- Nation to do i:u ; the. forfeiture of the : m tiie nature ^'-f' ■1 penalty.'' \ ; in an action ■ ■ by the agent in n 1 ••. ■■■ nT'on^-rK' .'■ .ft iiulonK-T't he- .^ J..; 5.j.> 1' 1888 OF 111 9 III. App. 458. cO'i/t w:. of "set-ofi, for was the came to and 'kvi and wa? Tent for is suit, \VcL.> -1,000 each '>. and S: ^ment o • ned for 10 defer; 'J such demand. No f^A\ ;.^r II; '^^ • i"ht suit against appellee to recover :th the latter by appellant in the .\gcnt." The cause was tried by the plea of the general issue and notice ■ ■ tj-^e money sued t plaintiff's, and V jeorge D. Hay- \\\ his name, but . commencement .1 three notes, two y, notes), signed by due before the id allow against said George D. y and discharge requested on behalf of fi-.T rlpff'tirlnvif' 'iniT rt»n- LIABILITY THIRD PARTY TO AGENT. 509 dered judgment against plaintiff for costs, whereupon plaintiff took this appeal, his motion for a new trial having been overruled. It appears from the evidence said George D. Hayden had been en- gaged in business in Alton until August 2, 1887, when he disap- peared, leaving no one in charge of his business; that a few days after his departure his brother, the appellant, came to Alton, and, as he says, at the instance of creditors of George D. Hayden, took charge of the business as the agent of his brother to look after it until it should be ascertained where his brother was. During the \ time he was so acting, and on September 3, 1887, he opened an ac- count with appellee in the name of "William H. Hayden, Agent," and between September 3 and 7, 1887, deposited with appellee to the credit of that account $566.54; against this account a check for $40 and one for $22.50 had been drawn by appellant and paid by the bank, leaving a balance of $504.04, to recover which this suit is brought. It is claimed on behalf of appellant that this deposit was made by him in his own name; that it was received, accepted and entered by appellee upon its books as his ; that the greater part of it was deposited and to be appropriated for a certain specific pur- pose with the consent of the bank, and under this state of facts ap- pellee had no lien, as a bank, upon the sum deposited for the debt of George D. Hayden, and had no legal right to apply such balance of the deposit as a credit upon the note of George D. and Sarah Hayden, or set off such note against said balance. The state of facts so claimed to exist was denied on behalf of appellee, and on its behalf it is claimed the money was deposited by plaintiff as the money of George D. Hayden, and it was so understood and made known to defendant by plaintiff; that the plaintiff was acting with defendant in depositing this money as the agent of George D. Hay- den in conducting the business out of which the money deposited was derived. The evidence introduced in support of these disputed facts by the respective parties was conflicting, but the trial court, who saw the witnesses and heard them on the stand while being ex- amined as such, occupied a position and had an opportunity enabling it to determine more accurately and fairly the weight and credit to be given the testimony of each witness than is afforded this court, and has settled that conflict and determined the disputed facts in favor of defendant below. Such finding ought not to be disturbed unless it is manifestly and clearly wrong. We have carefully ex- amined all the evidence contained in the record and are satisfied the court below was warranted in finding that plaintiff, as agent of George D. Hayden, deposited the money with the bank as George D. Hayden's money, derived from his business then being carried on by plaintiff as his agent; that defendant was notified of these facts at the time said account was opened, and was never informed to the contrary, and that no part of the money so deposited was set 5IO UNDISCLOSED PRINCIPAL. apart or appropriated for any specific purpose with the knowledge or consent of the bank ; and in saying this we are not unmindful of the fact that Wade testified, after the balance of the deposit had been endorsed as a credit upon the note of George D. and Sarah Hayden, and plaintiff was told of it and made no objection, plaintiff told him there were some debts incurred he felt morally bound to pay, and exhibited a memorandum showing the nature and amounts thereof, aggregating $207.11, and said if this sum was allowed he had no objection to such application of the balance, and thereupon witness, after consultation with his associates in the bank, agreed to the request and consented to allow him that sum. No lawful consideration supports such promise, and the next day the plaintiff repudiated the arrangement by bringing this suit. If this finding of the court was justified by the evidence, the ques- tions remaining to be decided are, could defendant below set off a debt of George D. Hayden against the demand sued for? And was the note upon which said balance was endorsed as a credit a debt of his? Both of these questions, we think, must be answered in the affirmative. When appellant claimed and was known to be acting for George D. Hayden merely as his agent, his acts and contracts must be deemed to be the acts and contracts of his principal only, and "in- volve no personal responsibility on the part of the appellant." Story on Agency, § 261, et seq. And in an action by him to recover money due his principal, a debt of the principal may be set off. Hunting- ton V. Knox, 7 Gush. 371. If the suit is brought in the name of the agent instead of the principal, upon any contract knowingly made by the former for the latter, the other contracting party will gen- erally be entitled to make the same defense, and establish the same claims against the agent that he would be entitled to if the suit was brought in the name of the principal. Story on Agency, § 404. Where a depositor is indebted to a bank, the latter has a right to apply so much as may be necessary of the funds deposited, undis- posed of and remaining in its hands, to the payment of his matured indebtedness. Commercial Bank of Albany v. Hughes, 17 Wend. 94; Morse on Banks and Banking, 27. But appellant insists that a bank has a right of set-off against a deposit only in a case where a depositor and debtor is the same person, and that here appellant is a depositor and his principal is the debtor ; hence, under the rule, defendant was not entitled to the set-off claimed. In law, however, under the facts found, George D. Hayden was the depositor, not- withstanding the deposit was made by his agent. The authorities cited, and many others not cited, support the view we have ex- pressed. If the finding of the trial court was justified by the evi- dence, the debt of George D. Hayden due defendant was properly allowed as a set-off against the demand sued for. Appellant claims. ivC Ujl Hay- dens, l>ur was a joint ' there- fcH-f not a proper .-^t-. ■ T:r>ip reads as follows : "$I,000. y\LjL "Ninety days after date I promise to oav to i; National Bank one thousand dollars, per annum until paid, for value recc tional Bank. "Geo. D. I] 'Sarah H. On this note appci:> .. against George x.. den alone, and if so, u forbids its allowanc' set-off against any ^ ':is against ar " :5ei off of a joint and lie debt claij. • due one of the makers t' v. Parmlee, lo . : White V. Rogers, 6 , ,,^ .'ro;i5 other ca?? this rule. We conclude, therefore, said note was ^ )-■- i -- -^ -^ ■ • . .^ of George D. Hayden against the demand sued for, and the cou. below did not err in so holding. The judgment of the circuit court i.s affirmed. Judgment affirmed. :ev;.ioii '±. — i.ia,uility of AgeL BARTi;i: November i8, and I ' 2. That, if the GeoffTP T Rpyp-.' ;i,:..irt or appropnatv:*. (.T consent of the ban the fact that Wade been endorsed as n Hayden, and plai' told him there v. pay, and exhibit'; thereof, had tio ', witness,, aitv to the rec;r consider reptidial If thi- tioiv- • deiv e knowU ■ '"'■ linnnndfi' > die deposit liad ' T). and Sarah tion, plaintiff '.uiicv; ■ hound tc : shown n , amount::- ' said if v.as allowed he !on of til :e, and thereupon :iis associates in the bank, agreed allow him t.liat sum. No lawful ;omise, and the next day the plaintiff - bringing- this suit. vas justified by the evidence, the ques- i. are, could defendant below set off a rainst the demand sued for? And was - was endorsed as a credit a debt , we think, must be answered iv, eraij,\ claims a. brought Where apply sa mu posed of ani: indebtedness 94; Morse c a bank has a depositor aiivi (.:■ a depositor and ■ ■■t was Th > c facts ■ \V ill. citeu, pressed. If the tincl dence, the debt of Gv^v ■ .: allowed as a set-oflF against --nown to be acting for George his acts and contracts must bt - '"f his principal only, and "in part of tlie appellant." Storv ! :n an action by him to recover mone)- le principal may be set ofif. Hunting- ■ the suit is brought in the name of the il, upon any contract knowingly made the other contracting party will gen- same defense, and establish the same !ie would be entitled to if the suit wa- incipal. "' n Agency, § 404. 'ed to a ■ latter has a right to vtds deposited, undis- ■ , ■ . , unent of his matured - of Albany v. Hughes, 17 Wend '■ "'7 "'''■■ i nellant insists thai ;n a case where ;: ,>ei>ei;, ,::ia iiiat here appellant i ; 'le debtor ; hence, under the rule -.et-off claimed. In law, however. Hayden was the depositor, not •y his agent. The authoritie; [)port the view we have ex- >urt was justified by the evi- due defendant was properly '.'sued for. Appellant claims. LIABILITY AGENT TO THIRD PARTY. 5II however, that the note upon which the credit of $504.04 balance of deposit sued for was endorsed, was not a debt of George D. Hay- den's, but was a joint debt of him and Sarah Hay den, and there- fore not a proper set-off against his separate demand. The note reads as follows : "$i,ooo. Alton, April 22, 1887. "Ninety days after date I promise to pay to the order of Alton National Bank one thousand dollars, with interest at eight per cent, per annum until paid, for value received, payable at the Alton Na- tional Bank. "Geo. D. Hayden, "Sarah Hayden." On this note appellee could maintain suit against George D. Hay- den alone, and if so, no legal objection forbids its allowance as a set-off against any separate demand of his against appellant. Set- off of a joint and several note against the debt claimed to be due one of the makers is admissible. Stadler v. Parmlee, 10 Iowa 23 ; White V. Rogers, 6 Blackf. 436, and numerous other cases announce this rule. We conclude, therefore, said note was a proper set-off as a debt of George D. Hayden against the demand sued for, and the court below did not err in so holding. The judgment of the circuit court is affirmed. Judgment affirmed. Section 4. — Liability of Agent to Third Party. BARTLETT v. RAYMOND. 1885. Supreme Judicial Court of AIassachusetts. 139 Mass. 275. Contract, on an account annexed, for goods sold and delivered on November 18, and December 4, 1882. Answer: i. A general denial. 2. That, if the goods were sold at all, they were sold to the firm of George J. Raymond and Company, in which firm the defend- ant was not a partner, and had no interest. Trial in the superior court, before Brigham, C. J., who allowed a bill of exceptions, in substance as follows : The following appeared in evidence, and was uncontradicted : From 1877, to July 24, 1882, the defendant had done business at sev- 512 UNDISCLOSED PRINCIPAL. eral places in Boston, and in 1879, and from that time until his in- solvency, at a shop on Tremont Row, in Boston, under the firm name and style of George J. Raymond and Company. On July 24, 1882, he was adjudged insolvent luider the insolvents laws of Massachu- setts, in involuntary proceedings upon a creditor's petition, and a warrant was issued, and the messenger took possession of the store and goods, and excluded the defendant and retained possession until they went into the hands of the assignees. Afterwards, one John G. Stewart, Jr., put a stock of goods into the same shop, and carried on business under the same firm name and style, of George J. Raymond and Company. He put up a new sign, but it bore the same firm name. He hired the defendant, George J. Raymond, as a clerk, at a salary of $3,000 a year, and the defendant had no further interest in the business. The plaintiffs had never dealt with the firm of George J. Raymond and Company before the insolvency of Raymond, nor until after Stewart had commenced to do business under that firm name at that shop, and there was no evidence that they had any actual knowledge or notice of the defendant or his business history, or of Stewart or the defendant's relations to him, before the transac- tions out of which this alleged cause of action arose. One of the plaintiffs went into this shop to sell goods ; he found the defendant there, and had all his talk with him, and sold the bill of goods, charging them to George J. Raymond and Company. He did not make any inquiries as to who constituted the firm of George J. Ray- mond and Company, and nothing was said about it. The bills were sent in charged to George J. Raymond and Company, and the goods were sold in the shop owned and so run by Stewart, and were such goods as were usually sold in that shop, and were sold by the plain- tiffs for the purpose and with the expectation that they were to go into the stock of said shop for sale there. No question was made as to the responsibility of John G. Stewart, Jr. The defendant contended that the plaintiffs were affected with notice, by the public proceedings, of his insolvency, notwithstanding they had no actual knowledge of the same, as bearing upon the question whether they had any knowledge or cause of belief that the defendant was not dealing with them in his own business, and asked that the jury be so instructed. The judge refused to give such in- struction. The defendant also contended that, on the above evidence, he was not liable in this action, but the judge declined so to rule, and in- structed the jury that, "if George J. Raymond, at a shop bearing upon it the sign George J. Raymoxid and Company, purchased of plaintiffs the goods described, notwithstanding it was a fact that, at that time and during all of the time of the delivery of said goods, all the business of that shop was owned and conducted by John G. Stewart, but under the name of George J. Raymond and Company, and George J. Raymond was a clerk only of said Stewart, and so acted in tl r said g-oods liable in lii may hav>- ,o Gf' ■::;- tin . • k oni} '..i said shop, and ti. ' ■ ■ ' tor of the business u; jury returned a verdict i ".options. J. — The defendant n piirt Oi the firm : ■n, and in the si; plaintiffs had no nonce They seem to have kno\- excepted to, we think tl knew the name of Ra) does not appear from t ''■< - me. Wif ..CSC c;r.- ry to tl e of cj ■ .e idccs > ouug V. Axtell, cited 2 H. Bi. 24^, • ■ ; ■•. ' =on, 2 L ^.2; Poillon v. Secor, 61 N. Y. 456. The question is not whether another defendant should have been '"''ned, but whether the defendant was bound by the contract. Ye understand the defendant to abandon the susrs^estion that the i .riffs were affected with co; .. ,. , ■ him in i"-^o]vency, and t hi dett they k. them i' ?s. Th' actual knowledge. ARGERSINGER 1889. Court of Appk Bradley, J. — This act^.i leged to have been sus' the defendant to the planu ; the plaintiff recovered. Th^ racting a • at the In 1 judged ; seit.s, m involuntri warrant v-^- '-'^■■' and g-ood> they went iu' ; Stewart, Jr., i business i ' and Com] name, salarv the b'l J. R. until I-]. gooa- tiffs iw. into the S! to the re'^^ The de; notice, by the they had no question wheti. f^eft ndant was le jury 1 r u .M ^ion. The defendant ;■ not liable in this : structed the jury • upon it the sign '■ plaintiffs the goodc- that time and during a the business of that ::.: Stewart, but under the and George J. Ra)'Tnt..: ras 1)1- ■ n name ,, 1882, -sachu- pon a '. and a :^*"'- i'>''l. ,■ .. . . -. . . ..ic store retained possession until I :ii;a'.s. ■ ■' ■' ^ [ohn G. to the ? ried on and style, 01 Lt<.orgc j. Raymond •, sign, but it tore the same firm George J. Raymond, as a clerk, at a • '^ fendant had no further interest in "/er dealt with the firm of George re the insolvency of Raymond, nor need to do business under that firm ■y had any 'OSS history, •re the transac- - ^e. One of the .ound the defendant . .la the bill of goods, : Company. He did not : iJie firm of George J. Ray- aid about it. The bills were u viviond and Company, and the goods !^d so run by Stewart, and were such lat shop, and were sold by the plain- he expectation that they were to go ale there. No question was made as Stewart, Jr. at the plaintiffs were affected with ,s, of his insolvency, notwithstanding . ■ of the same, as bearing upon the -nowledge or cause of belief that the them in h;< ,v. ti business, and asked The jii' ed to give such .. t, on the above evidence, he was \ge declined so to rule, and in- T Raymond, at a shop bearing md Company, purchased of anding it was a fact that, at ' 'ie delivery of said goods, all and conducted by John G. J. Raymond and Company, nc only of said Stewart, and so I LIABILITY AGENT TO THIRD PARTY. 513 acted in the purchase of said goods, George J. Raymond would be liable in this action for the price of said goods, although the same may have been charged in the plaintiff's books, and delivered, to George J. Raymond and Company, unless he disclosed to the plain- tiffs, or they had otherwise notice or knowledge, that he was a clerk only in said shop, and that said Stewart was the exclusive owner and conductor of the business there," The jury returned a verdict for the plaintiffs; and the defendant alleged exceptions. Holmes, J. — The defendant not only suffered his name to be used as part of the firm name, but made the bargain for the goods in per- son, and in the shop bearing the firm name upon its sign. The plaintiffs had no notice that he was not interested in the business. They seem to have known the firm name, and under the instruction excepted to, we think that the jury must have found that they also knew the name of Raymond, with whom they dealt. Certainly it does not appear from the bill of exceptions that they did not know his name. Without inquiring whether all these circumstances are necessary to the defendant's liability, we are of opinion that he is liable upon the facts stated. Young v. Axtell, cited 2 H. Bl. 242 ; Guidon v. Robson, 2 Camp. 302; Poillon v. Secor, 61 N. Y. 456. The question is not whether another defendant should have been joined, but whether the defendant was bound by the contract. We understand the defendant to abandon the suggestion that the plaintiffs were affected with constructive notice of the proceedings against him in insolvency, and that this must be taken into account in determining whether they knew that he was not dealing with them in his own business. There was no evidence that they had actual knowledge. Exceptions overruled.^ ARGERSINGER et al. v. MacNAUGHTON. 1889. Court of Appeals of New York. 114 N. Y. 535. Bradley, J. — This action was brought to recover damages al- leged to have been sustained by breach of warranty in the sale by the defendant to the plaintiffs of a quantity of antelope skins, and the plaintiff recovered. The defendant was a commission merchant ^ "A person contracting as agent will be personally responsible where at the time of making the contract he does not disclose the fact of his agency and the name of his principal." Gildersleeve, J., in Beidleman v. Kelly, 99 N. Y. Supp. 907, 908. See Elliott v. Bodine, 59 N. J. L. 567, where a husband acted as agent of his wife without disclosing the fact of agency. 33 — Reinhard Cases. 514 UNDISCLOSED PRINCIPAL. in the city of New York. The sale in question was in the line of his business, and made by him as such merchant. The referee found that the warranty was made by the defendant that they were a sound, choice lot of Indian-handled skins, free from damage by worm-cut, and that there was a breach of such warranty. The evi- dence on the part of the plaintiffs tends to prove those facts, and for the purpose of this review, they must be deemed established. The main contention on the merits on the part of the defendant is, that he was not liable, because the sale was made by him as agent of his consignors of the property sold. Upon that subject, the referee found that the defendant did not sell the skins upon his own account, but as a commission merchant, and that the plaintiffs knew that he was acting as an agent only, and that his commission was 5 per cent. The referee, however, determined that the war- ranty was the undertaking of the defendant, and that he was charged with liability by its breach. The general rule is, that an agent employed to do an act is deemed authorized to do it in the manner in which the business intrusted to him is usually done, and such is the presumed limitation upon his power to act for his prin- cipal. Easton v. Clark, 35 N. Y. 225; Smith v. Tracy, 36 id. yg; Upton V. Suffolk Co. Mills, 11 Cush. 586, 59 Am. Rep. 163. While the defendant dealt in the property of others, for whom he made sales, his business of commission merchant was his own. He undertook to sell the goods sent to him for this purpose, and to ac- count to his consignors for the proceeds, less his commission. As be- tween him and them, without any special instructions or authority, it would seem to be inferred that he should sell the goods as they were. And it is difficult to find in such case any implication of power, de- rived from them, to undertake that the goods were in any respect other or different than they in fact were. Unless the character or the quality of the goods consigned to him is communicated by the con- signors, it is the business of the commission merchant to ascertain what they are in that respect, and put them upon the market only as such ; and when he goes beyond that he is not, as between him and his principal, within the authority presumptively conferred by the latter upon him. It does not appear that those parties, from whom the defendant received the property in question for sale, gave him any description of the quality or condition of it, or that he acted other- wise than upon his own knowledge or judgment in that respect in making the sale and warranty ; nor is it found that he had authority from his consignors to warrant it. But there was some evidence given, on the part of the defendant, to the effect that it was the cus- tom in the trade of commission dealers not to warrant goods sold. While the purpose of sucli evidence was to bear upon the fact whether any warranty was made, and in support of his proof that none was made in this instance, it also went further, and may have been treated as bearing upon the question of the presumption of au- I personal iiabili ...... its. : elusion wa-. .:> the warranty mj i . -. y, pursuant to whirh he i'he defendant did ny manner advised, . who sent the skins to trie tion is presented, whet'^ - the plaintiffs such infr. to make h ' the plaint; V-''.- ; ToperLV, ijr that kUc ^ f'OK'-.. In such case, ther*: fendant intended to make ; the purchasers. And the p ■k of the ■ the re- jim .. JC^ 11'.' :.f the c .ey had - iuclud" • auv ills owii as I n that an agent c in and in his ■wn name and failing to disclose the name of his prmcipal at the lime of making a contract for the sale or purchase of goods, is per- sonally liable for whatever obligation nav arise out of the contract, :.as the support of authority. ' ' " it, 17 Wend. 333; Mor- ison V. Currie, 4 Duer. 79: < > 7?: N Y. .'?4^. :?7 Am. Rep. 51: Ludwig V. Gilles Sav. Bank, 44 Hun 412. i.se. The defendant made th'. .^mmission merchant, without nd his warranty given, to pr- • the parties, be detr e supposed that a p- n with whom he 1.- ' the:'- he i? nrr -t. not, a named . but IL ! an' qual:^ descrip*-ion of the ' ■ •■' upon h le sale a; whei arrant' line of I lariiag'e i :. The e • <• facts, and ■ '-^blished. jdant is, ■: Tii.ioe Dy mm as agent Upon that subject, the aul uut sell the skins upon his merchant, and that the plaintiffs ily, and that his commission r, determined that the Avar- icfendant, and that he was icacu. The ' "• ^ rule is, that an iS deemed a to do it in the ..:> usually done', and to act for his prin- cicy, 36 id. yg; op. 163. ot others, for whom he v:hant was his own. He this purpose, and to ac- his commission. As be- rrnr-tinns Or authority, it •'Is as they were. ti of power, de- were in any respect the character or the jnicated by the con- erchant to ascertain i . ' the market only as ■ een him and his cri by the latter whom the ve him any ;Cted other- . i:i ..;.iL respect in lat he had authority was some evidence that it was the cus- ant goods sold. . upon the fact ipport of his proof that t further, and may have the presumption of au- LIABILITY AGENT TO THIRD PARTY. 515 thority from his principal. If the custom of such dealers was to sell goods as they were, and solely upon tlie inspection and risk of the purchasers, it is certainly difficult to see how an}^ authority from the defendant's principals to warrant could presumptively arise to re- lieve him from personal liability for such undertaking made by him to the plaintiffs. The conclusion was, therefore, permitted that the defendant's re- lation to the warranty and its consequence was not qualified by his agency, pursuant to which he made the sale to the plaintiffs. The defendant did not inform the plaintiffs, nor were they in any manner advised, of the name or names of the party or parties who sent the skins to the defendant to be sold by him. The ques- tion is presented, whether the fact that the defendant failed to give the plaintiffs such information was sufficient to deny to him the right to make his agency effectual as a defense. It does not appear that the plaintiffs had any knowledge of the names of the consignors of the property, or that the defendant supposed they had such knowl- edge. In such case, there is some reason to conclude that the de- fendant intended to make the warranty his own as between him and the purchasers. And the proposition that an agent contracting in his own name and failing to disclose the name of his principal at the time of making a contract for the sale or purchase of goods, is per- sonally liable for whatever obligation may arise out of the contract, has the support of authority. Mills v. Hunt, 17 Wend. 333; Mor- rison V. Currie, 4 Duer. 79; Cobb v. Knapp 71 N. Y. 348, 27 Am. Rep. 51; Ludwig v. Gillespie, 105 N. Y. 653; Jemison v. Citizens' Sav. Bank, 44 Hun 412. That doctrine is applicable to the present case. The defendant made the contract of sale in his own name, as commission merchant, without disclosing the name of any principal ; and his warranty given to produce it may, within that rule, as be- tween the parties, be deemed his undertaking. In such case, it may be supposed that a purchaser relies upon the responsibility of the person with whom he deals for the performance of the con- tract, and that he is not required to look elsewhere to obtain it. When there is, in fact, a principal, the agent may ordinarily relieve himself from personal liability, upon a contract made in his behalf, by disclosing his name at the time of making it. Upon such dis- closure, however, the party proceeding to deal with the agent may or may not, as he pleases, enter into contract upon the responsibility of the named principal, but to permit an agent to turn over to his customer an undisclosed and, to the latter unknown, principal, might have the effect to deny to the customer the benefit of any available or responsible means of remedy or reHef founded upon the con- tract. The rule is no less salutary than reasonable that an agent may be treated as the party to the contract made by him in his own name, unless he advises the other party to it of the name of 5l6 UNDISCLOSED PRINCIPAL. the principal whom he assumes to represent in making it, where that is unknown to such party. This proposition is not inconsistent with the general rule that an agent, acting within the scope of his authority with a party advised of his agency, will not be personally charged, unless it appears, that such was his intention. Hall v. Lauderdale, 46 N. Y. 70. The dis- closure of his agency is not completely made, unless it embraces the name of the principal; and without that the party dealing with him may understand that he intended to give his personal liability and responsibility in support of the contract and for its performance. The cases cited by the defendant's counsel, having the relation to the right of set-off in behalf of a person who has dealt with an agent, whose agency was unknown to such person, have no nec- essary application to the question now here. In those cases the question arose between the principal and the party dealing with the agent, without any knowledge of his agency, and upon the faith that he was dealing on his own account in selling property in his posses- sion, and of which he apparently was the owner. And in such cases the right of the party purchasing property of the agent to set off a claim against the latter, in an action brought by the principal, is dependent upon, not only want of actual knowledge of the agency, but of circumstances which would direct a prudent man to inquiry and information of the fact, or furnish him reason to believe that he was dealing with an agent : Wright v. Cabot, 89 N. Y. 570 ; Nichols V. Martin, 35 Hun 168, and cases there cited. This rests upon the principle that where one of two innocent parties must suffer loss, it should fall on him who has furnished the means and opportunity to another to do that which is done by the latter to cause it. The con- tract of sale was an executed one, and while the return of the prop- erty to the defendant may have been a suitable manner of amicably adjusting the matter, the plaintiffs were not legally required to do so. After the skins were purchased by and delivered to them, the plaintiffs had the right to retain them, and seek their remedy founded upon breach of the warranty. Nor is it seen how that right is qualified, as applied to this case, by the fact that the defendant was dealing with the property of others to whom he was required to account for the proceeds of sales made by him. He was, soon after the sale, advised of the claim of the plaintiffs for damages on ac- count of the impaired condition of the skins ; and if the defendant, as between him and his consignors, acted within the authority de- rived from them in making the warranty, he had the opportunity of seeking indemnity in some manner before he paid over such pro- ceeds to his principals. It is deemed unnecessary to advert more fully to the evidence in support of the facts found by the referee, as it does not appear that the case contains all the evidence : Porter v. Smith, 107 N. Y. 531. We have examined all the exceptions taken by the defendant on LIABILITY tiie trial, ana . fiiid no en-(. i in . '" neni siioaic D': Neill, J. — The a} ance claimed to be c! stance of which, as a; :^ foilov'. 1903, plaintiff and d^^ - an oral . the former agreed to wf tter as a carpeii man and superintendent on of fifteen buiiv^u-. nated by numbers, in d-;. 'aso, Tex., in conside which services the latter : and agreed to pay him day for his work as a 1 and 2^2 per cent, of cost of the buildings, this peixentage to be paid upon the couipieiion of the houses; that in pursuance of the contract plaintiff worked as a carpenter and as foreman and su})erintendent in the construction of nine of the buildings until V-- -e tinished, and constructed the foundations for two of the nd furnished plans for them all, but that on the 15th of .3, the d " continued plaintiff's services . ct: that of the buildings erected, inc completed, was $22,000; a- tiff the $4.50 per day for his ter, he ; refuses to pay him the 2j/^ p ••■-<^ ^^' amounting to $550, for whi by a general denial a. ' " ' •wnership in the bui. . ' never did have an_v ion he ever had with itive of T. M. Bower a^ se lots they were constrr; !iad no personal interest were erected, nor ar .V that there was no tally and personally ■ ■ construction. This '; Brovr! V ^itip" f^o Mir*- nz J]], 123 Si6 1 .r-;rT rv'iir: vvhoin he ass lo such party. Thts proposition is not agent, acting within the s of his agency, will not b*. such was his intentior closure of his agenr the name of the i ' him may unders^ and responsi' The cases c" the right of agent, v^"- essarv ' tne umci to nakmg it, where tUa* another tract of erty to adjustin so' Afi is qualified, was dealing v. account for the ■ the sale, advise^ count of the im; as between him '-ived fi-om then"- indemn; his pr?i; fully to the evidence in *■ it does not appear that tl: Smith, 107 N. Y. 531. We have examined all inc .' that a:' :. t. V advise*' '.rirs, thai I . /w. The dis- kless it embrace- >e party dealing witl: t. his personal liabilit; '. and for its performance ■ol, having the relation tf ■A person who has dealt with ai .vn to such person, have no nee n now here. In those cases th-, ; ;ncipal and the party dealing with th ^ 01 his agency, and upon the faith that •roperty in his posses. r !, And in such case:: property of the agent to set off y^rivt brought by the principal, i knowledge of the agency A t a prudent man to inquir, 1 him reason to believe that h. . t V. Cabot, 89 N. Y. 570; Nichol ■ there cited. This rests upon th' ■t'.es must suffer loss, •.. ;;ais and opportunity t one by the latter to cause it. The con ' one, and while the return of the prop -ve been a ^li table manner of amicabh lintiffs were ' 'ly required to d rchased by ;. cred to them, th' in them, and seek their rei inty. Nor is it seen how that - s case, by the fact that the defendaiv of other'5 ■■' ^ -m he was required <■ ■\es mao He was, soon afte- f the ^.'1 ./iiui.s for damages on ac 'f tlie skins; and if the defendant ' within the authority de he had the opportunity ol eiore he paid over such pre 1 unnecessary to advert mor., • facts found by the referee, s :,-,.: A] fh,^ />, iri-pce: Porte- • me eisCv'j'Mons taken cy ine defendcfnt on « LIABILITY AGENT TO THIRD PARTY. 517 the trial, and to the conclusions of fact and law of the referee, and find no error in any of the rulings to which they were taken. The judgment should be affirmed.^ BOOK V. JONES. 1906. Court of Civil Appeals of Texas, 98 S. W. 891. Neill, J. — The appellee sued appellant to recover $550, the bal- ance claimed to be due him by appellant upon a contract, the sub- stance of which, as alleged, may be stated as follows : That in March, 1903, plaintiff and defendant entered into an oral contract by which the former agreed to work for the latter as a carpenter and fore- man and superintendent in the erection of fifteen buildings, desig- nated by numbers, in the city of El Paso, Tex., in consideration of which services the latter promised and agreed to pay him $4.50 per day for his work as a carpenter and 2^/2 per cent, of the total cost of the buildings, this percentage to be paid upon the completion of the houses ; that in pursuance of the contract plaintiff worked as a carpenter and as foreman and superintendent in the construction of nine of the buildings until they were finished, and constructed the foundations for two of the others, and furnished plans for them all, but that on the 15th of September, 1903, the defendant dis- continued plaintiff's services under said contract ; that the total costs of the buildings erected, including the foundations of the two un- completed, was $22,000; and that, while defendant paid plain- tift' the $4.50 per day for his work as a carpenter, he has failed and refuses to pay him the 2^ per cent, upon the cost of the buildings, amounting to $550, for which he sues. The defendant answered by a general denial and pleaded specially that he had no interest or ownership in the buildings alleged to have been erected by plaintiff, and never did have any interest in any of them ; that the only con- nection he ever had with such buildings was as the agent and repre- sentative of T. M. Bower and James S. Book, for whom and on whose lots they were constructed ; that plaintiif knew that defend- ant had no personal interest in the property upon which the build- ings were erected, nor any property or interest in the buildings, and knew that there was no reason why defendant should become indi- vidually and personally liable for the same or any debt incident to their construction. This is as much of the answer pertinent to the ^Accord: Brown v. Ames, 59 Minn. 476; INIacDonald v. Bond, 195 111. 122. Where an agent contracts without disclosing his principal, he is not relieved from individual liability by the fact that he afterwards discloses his principal's name. Lull v. Anamosa Nat. Bank, no la. 537. 5l8 UNDISCLOSED PRINCIPAL. assignments of error to be considered as need be stated. The case was tried before a jury who returned a verdict in plaintiff's favor for $348.75, upon which the judgment appealed from was entered. The first assignment of error is as follows : "The court erred in its general charge wherein the jury was instructed as follows: 'And, if you further believe from the evidence that said W. P. Book did not disclose his agency, then you will find for the plaintiff.' That said charge was erroneous and prejudicial, in this: The evidence showed, or tended to show, that the contract of employment of plaintiff was entered into by and between plaintiff and Mark Miller, and the evidence showed, or at least tended to show, that the plain- tiff knew that Mark Miller and T. M. Bower were interested in the ownership of the land upon which said houses designated as in block 900 were erected, and the evidence further showed, or tended to show, that the plaintiff knew that Mark Miller and T. M. Bower were interested in the proposed construction and ownership of the houses, to be erected in said block 900, and that at the time when plaintiff was employed by Miller to work as foreman and superin- tendent at $4.50 per day the plaintiff did not know and had never met the defendant, W. P. Book. Such being the state of evidence, it was error in the court to charge the jury to find for the plaintiff, unless they believed from the evidence that the said W. P. Book did not disclose his agency; for under said instruction the jury was precluded from the consideration of the evidence showing or tending to show that plaintiff knew that defendant was merely acting as agent." The proposition asserted is that it was error to charge the jury to find for plaintiff unless it believed from the evidence de- fendant did not disclose his agency. It is an elementary principle of law that, where an agent conceals the fact of his agency and enters into a contract in his own name as the ostensible principal, he may be treated as the principal by the party with whom he deals, and may be held liable on the contract to the same extent as if he were the principal in interest. Sydnor v. Hurd, 8 Tex. 98 ; Johnson V. Armstrong, 83 Tex, 325, 18 S. W. 594, 29 Am. St. 648; Wil- liams V, Blum (Tex. Civ. App.), 55 S. W. 374. This principle is just, and works no hardship upon the agent, because he has it in his power, if he desires to escape personal liability, to do so by disclosing his principal and contracting in his name. The charge complained of is in accordance with this principle, and is not er- roneous. The second assignment of error is as follows : "The court erred in refusing special charge No. i asked by defendant, which was as follows : 'You are charged that before you can find for the plain- tiff, you must believe that the defendant expressly agreed per- sonally to pay to the plaintiff (in addition to the per diem of $4.50 per day) 2J/2 per cent, commission on the total cost of said buildings, and you must further believe from the evidence that the plaintiff .1^! vud circumstances wii: i notice, if reasonaL.. ijiy.- .,:\i the ownership of s.. find for the defendani -- i to correct, and -would :_ . ■ ;r' -ral char ti>"- i/i.i,'i.u!t if they ' his agency." The the special charge c the general charge p- which tended to show . . ic, ._: ■, u of the fact that defenda: i with the ::■• oes was merely that llee was put upon r i' would not be .on oi liie ruic ; ed in our disposf , , _nt. The duty is t:;, the agent-, if he would avoid personal liabilit^y, to disclose his agency, and not upon others to discover it, and if he fails so to do, ^nd deals with persons unaware of his agency, he must answer per- ally for the liabilities he contracts .( Sydnor v. Hurd, supra.; J win V. Leonard, 39 Vt 260, 94 Am. Dec. 324; Bickford v. First Nat. Bank, 89 Am. Dec. 436; - rer \. \' N. Y. 535, 21 N. E. 1022, II .- 87); a: make such a disclosure, the presu ~ that h'. himself personally. Raymond *^' F (Mass.) 3ip; Cobb v. Knapp, 7 is held in Argersinger v. Mac? to turn over to his customer "A"n, principal, might hav. J fit of any available or ' "ided upon the contracts. !sed. his disposes of all the :;nrce of the judgment, lied. AM -This V 'udgment the dci< m; undisclose; ; to be c \ ris tried beiore a jury w, ^^348.75, upon which the The first assignment c its general charge wh if you further behe\ : not disclose his : said charge was showed, or ten(' plaintiff was cnt; and the evici tiff knev ^'^ ownersl block 9'' to sho" wer no ''it ill ieut jury to tino f endan; ' ' of law enters i. may be and may ik. were the pri Armstron liams V. Bill., just, and w< ' ' ver, 11 r- g his pi led of i' J he second a> ir. refusing spec.c. as follows : 'You are tiff, you must belie sonally to pay to the per day) 2^ per cent. » and you must further .ecd be stated. The cast iT's favor for Tiered. erred in j^. it!iiu\vs; *And = W. P. Book di.; . ;or the plaintiff.' Tha' d, in this : The evidence ■ contract of employment o; ; een plaintiff and Mark Miller , '.St tended to show, that the plain . M. Bower were interested in tin iich said houses designated as ir iic evidence further showed, or tendeartv with whom he deals, same extent as if be ■■ , 8 Tex. 98 ; Johnsoi , > Am. St. 648; Wil D.-) -• '■• o74- This principle ii ■ri the agent, because he has it it) , . llity, to do so b> .ixie. The charg': vith this prmciple, and is not er as follows: "The court errec' ' 1>y defendant, which w;i you can find for the plain - nt expressly agreed per to the per diem of $4.5^ '>tai cost of said build 1' v-.vidence that the ph' LIABILITY AGENT TO THIRD PARTY. 519 did not know or had no notice of the ownership of said property in block 900 by Miller & Bower, and if you believe that under all the facts and circumstances that the plaintiff was put upon notice, which notice, if reasonably followed up by inquiry, would have disclosed the ownership of said property to be in Bower and Miller, you will find for the defendant' — for the reason that said charge was designed to correct, and would have corrected, the error in the court's general charge, to the effect that the jury should find for the plaintiff if they believed that said W. P. Book did not disclose his agency." The contention of appellant is that the refusal of the special charge embraced in the assignment was error, because the general charge precluded the jury from considering the evidence which tended to show that plaintiff knew or was put upon notice of the fact that defendant's connection with the construction of the houses was merely that of an agent. If it should be conceded that appellee was put upon notice of the fact of appellant's agency, the latter would not be relieved from the operation of the rule enun- ciated in our disposition of the first assignment. The duty is upon the agent, if he would avoid personal liability, to disclose his agency, and not upon others to discover it, and if he fails so to do, and deals with persons unaware of his agency, he must answer per- sonally for the liabilities he contracts (Sydnor v. Hurd, supra.; Baldwin v. Leonard, 39 Vt. 260, 94 Am. Dec. 324 ; Bickford v. First Nat. Bank, 89 Am. Dec. 436; Argersinger v. MacNaughton, 114 N- Y. 535, 21 N. E. 1022, II Am. St. 687) ; and, if he does not make such a disclosure, the presumption is that he intended to bind himself personally. Raymond v. Crown & E. Mills, 2 Mete. (Mass.) 319; Cobb v. Knapp, 71 N. Y. 349, 2y Am. Rep. 51. As is held in Argersinger v. MacNaughton, supra.- "To permit an agent to turn over to his customer an undisclosed, and to the latter un- known, principal, might have the eff'ect to deny to the customer the benefit of any available or responsible means of remedy or relief founded upon the contracts." The requested charge was properly refused. This disposes of all the assignments of error and requires an affirmance of the judgment. Affirmed. AMANS V. CAMPBELL. 1897. Supreme Court of Minnesota. 70 Minn. 493. Mitchell, J. — This was an action to recover personal judgment against the defendant Campbell for services in a logging camp, and to have the amount adjudged a lien on the logs which belonged to the defendant lumber company ; but the questions presented by this 520 UNDISCLOSED PRINCIPAL. appeal relate exclusively to plaintiff's right of action against Camp- bell. The undisputed evidence is that Campbell personally employed plaintiff ; that neither at the time of making the contract nor during the times plaintiff was performing the services did he disclose any agency, unless it was by the use of the name of "Campbell & Co." in the written contract (Exhibit A) which he procured from plain- tiff, and in the signature of time checks which he issued to the plain- tiff and other laborers in the camp ; that in using this name he in no way indicated that he was agent for some one else, or that he himself was not "Campbell & Co.," or the Campbell of "Campbell & Co.," unless such facts were indicated by the use of the name itself ; that from start to finish he was the only person who appeared in connection with the business, and had to all appearances the ex- clusive management and control of it, precisely as if he himself had been the principal. Neither at the time of making the contract nor while performing it had plaintiff any knowledge or notice of any agency, or that Campbell was not the principal, unless he was chargeable with such notice by the fact that Campbell used the name "Campbell & Co." in the contract (Exhibit A) and in signing time checks to workmen. While one of the members of the lumber company testified that he knew that "Campbell & Co." meant Delia Campbell, the wife of the defendant Campbell, and that he thought that people generally throughout the community knew that fact, yet there is not a single fact in evidence tending to support that opinion. It had been testi- fied to that the "firm" of "Campbell & Co." consisting of Delia Campbell alone, had existed for about three years, but there was no evidence that she had ever conducted any business under that name, unless it was the logging operations during the winter of 1896-97 at the camp at which the plaintiff was employed ; and it appears that even in that business she never appeared or took any part in person. The defense interposed in this action was that "Campbell & Co." was Delia Campbell, and that the defendant Campbell was merely her agent. There is much in the evidence tending to show that de- fendant himself was in fact "Campbell & Co." But assuming that in fact he was merely an agent for his wife, the case was, upon the evidence, one for the application of the rule that a person acting as the agent for another will be personally responsible if, at the time of making the contract in his principal's behalf, he fails to disclose the fact of his agency; that by reason of such failure he becomes subject to all the liabilities, expressed or implied, created by the contract, in the same manner as if he were the principal in interest, i Am. & Eng. Ency. Law (2d ed.) 1122, and cases cited. The case is one not merely of an undisclosed principal, but of an undisclosed agency. The fact that the defendant used the name of "Campbell & Co.," but without indicating in any way that he did r me ^ was gest thai there were others think ihai would be all. me;'iu.rs other than defen Jly known as such in t::<. ented. Tn snob cusq ki . mio-ht i ' e of the point. In Preston \ ■ counsel, the plai- ^^■ . person, and not The view we have .<< ider any of the otlier raised by them h-i\ have concluded tli;. Order affirmed.' i witn i- at we ^r that seem to us od linger, so much relied on luracted '..-. •' :i:i'-; '• ]:< ',:-•'.>: rt^ f party v/hon ■■'^: case re ■ i^tj::- ats of i noints FORREST .RTHY .11, J.-y-iiie p. ■Hi IS principal on '; he was acting merely brought to recover for Continental Storage Warei witli the defendant, purs-" age. It appears that th' of the proprietors of th 'also the owners of the ' '.' were, a: ':;:■. :.dntiff. the deiendani, and, unL. ;,n ;.nrent, he would be . lid. 42; Whitman \- ■ses no <1\ i \"ni :-;(■[( )SR .'^^ , ;.:ai relate exciusiveiy to p i-cli. 'J uuted evider pla'i , it neither at ' the times plaintiff w<- agency, unless it wa? in the written contTo tiff, and in the si;;"": tiff and other Is no way indi. himself war. & Co.," itself ;tl:- . ... in connection wi* clu?"-" '■ a against Camp- Canipbe evidence v,. unless it wa - at the camp ;i even in that I The ci was Dei her agent, fendant himi-i. fact he was met- evidence, one for the agent for an*^;' n'.'iking the contr. J .1 of his as^enc^ to all the lia: the srune m . Eng. Ency. Law (^2d The case is one not .. undisclosed agency. Tlr of "Campbell & Co.," but .: did lie disclose any ..«. of "Campbell & Co." . he procured from plain- vviiich he issued to the plain- hat in using this name he ir iit for some one else, or tha' • ," or the Campbell of "Cami- ■ re indicated by the use of the name he was the only person who appeared ss, and had to all appearances the ex- •' / '* precisely as if he himself had 'Tor while performinj.^ :!ny agency, or liiai ble with such . .bell & Co." in .Avg time checks to workmen. i>er company testified that he elia Campbell, the wife of the ,'_'ht that people gener;/!'\ . ;. yet there is not a sinric Lt opinion. It had been testi- ; & Co." consisting of Delia ■r about three years, but there was no ''p'-ted any business under that name, ■ ons during the winter of 1896-97 (ill was employed; and it appears that ; appeared .r took any part in person. "' ^ npbell & Co." , . 1 was merely lo show that de- --',::. assuming that in tor his e was, upon tlie ^ ^f the , .u .. .uau ti person acting as aally responsible if, at the time of ' ' lit, he fails to disclose the failure he becomes subject reated by the contract, in nal in interest, i Am. it cited. ■ .closed principal, but of an uit the defendant used the name - -'- -i-^g in any way that he did LIABILITY AGENT TO THIRD PARTY. 521 SO as agent, and not as his own business name, did not, under the circumstances, amount to a disclosure of an agency. There was nothing in this to indicate that he was not "Campbell & Co." or the Campbell of "Campbell & Co." The name might probably sug- gest that there were others associated with him as partners, but we think that would be all. If there had been a firm consisting of members other than defendant doing business under that name, generally known as such in the community, a different case would be presented. In such case knowledge of the fact of defendant's agency might be chargeable to the plaintiff. None of the cases cited by defendant's counsel seem to us to be in point. In Preston v. Foellinger, 24 Fed. 680, so much relied on by counsel, the plaintiff contracted with the actual party in interest in person, and not with the party whom he sought to hold liable. The view we have taken of the case renders it unnecessary to con- sider any of the other assignments of error, as none of the points raised by them have any bearing upon the ground upon which we have concluded that the case should be decided. Order affirmed.^ FORREST V. McCarthy. 1899. Supreme Court of New York. 61 N. Y. Sup. 853. Leventritt, J. — The plaintiff in this action seeks to charge the defendant as principal on the ground that he failed to disclose that he was acting merely in a representative capacity. The suit is brought to recover for the loss of certain articles stored with the Continental Storage Warehouse. A preliminary interview was had with the defendant, pursuant to which the goods were sent for stor- age. It appears that the defendant was simply a clerk in the employ of the proprietors of the Continental Storage Warehouse, who were also the owners of the premises it occupied ; but it does not appear that these facts were, at the time of the bailment, directly communi- cated to the plaintiff. The transactions were conducted entirely by the defendant, and, unless the plaintiff was aware that he was merely an agent, he would be liable as a principal. Brockway v. Allen, 17 Wend. 42; Whitman v. Johnson, 10 Misc. 725, 31 N. Y. Supp. ' "The law imposes no duty on the plaintiff, in dealing with the defendant, to inquire and ascertain whether or not the defendant was acting as an agent, in order to fix a ]ial)iHty on the defendant. On the contrary, it was the duty of the defendant in dealing with the plaintiff, if it were acting as the agent of another, in order to escape liability, to have informed the plaintiff of its agency." Dowdell, J., in Armour Packing Co. v. Vietch- Young Produce Co., (Ala.), 39 So. 680, 683. 522 UNDISCLOSED PRINCIPAL. 1009; Cobb V. Knapp, 71 N. Y. 348. Her own testimony, how- ever, clearly indicates that she was consciously dealing- with him as the representative of the Continental Storage Warehouse. She testifies to previous dealings with the same concern, and to a similar contract, made through the defendant's predecessor, whom she refers to by name, and explicitly identifies as the then "manager" of the warehouse. She likewise designates the defendant as the manager during the time of the arrangements here under considera- tion. From her statements, and from a letter introduced in evi- dence, she knew that she was dealing with a concern known as the Continental Storage Warehouse, and her admissions negative the idea of a contractual relation with the defendant. Under these circumstances the justice was right in holding that the proper party defendant was not before the court. Judgment affirmed, with costs to the respondent. All concur.^ COBB V. KNAPP. 1877. Court of Appeals of New York. 71 N. Y. 348. Church^ Ch. J. — This was an action for the purchase-price of a quantity of wheat alleged to have been sold by the plaintiff to the defendant. The defense was that the defendant purchased the wheat as agent or broker for C. A. Steen & Co. It seems to have been conceded that the defendant did in fact purchase the wheat, as a broker for the firm named, who were his principals, and the main contention on the trial was whether the defendant at the time of the purchase disclosed his principals, and whether he made the purchase in his own name and upon his own responsibility. The only exception in the case is upon a refusal to grant a non-suit, and a request to direct a verdict for. the defendant. The court charged the jury that a broker, although acting for another, makes himself personally liable if he contract in his own name, and without dis- closing the name of his principal, and that this would be so, although the seller supposed at the time that he was acting as a broker or agent for another; that the subsequent disclosure of the principal, and the commencement of an action against him by the seller, would not discharge the broker from personal liability. There were no exceptions to the charge, and I do not understand that the learned ^ "It is quite immaterial whether the agent disclose his character or his principal himself, if it be actually known at the time to the other party. For in such a case the agent will not be bound, unless he enter into such a con- tract as will bind him at all events." Scates, J,, in Chase v. Debolt, 7 111. 371, 374- ■:\-i\-i'-:V-l lor 111' :-l'<:ci.- ; but be suit shouid bave w.j Tliere was a sharp o. took place at the time oi ' to review the facts any far' sufficient upon any constrr. to give them to justify a ■^■ clusively proved which, as a verdict. The crcVl'" ' ous evidence, and ■ stances, are exclusi often reiterated by l and' quite unnecessary natural that parties, wl^ gle to have what they is the almost daily exprj lei'Ce oi ii!"r j'juvt to !ia^ '. fact pressed upon our attention in some form as qu; while, except in a few cases, the review of facts is confined b ute to the special and g^eneral terms of the courts below. jurisdiction is fixed by the constitution and the statute, and we hav ■s to SI- no authority to depart from ^''* dence of the defendant, wb true, established^ clearly a he purchased the wheat for tiff, and that it was up ' purchase-price, and that him at the time, nor for pose of determining wh; • for non-suit, we must t was sufficient to sustain in The plaint jff testified that '. but that the defendant credit, and directed tha' to him. and a bill mad-^ to pay. If the jurv ?.<'- a case of liabiiity. It is argued that be.cL. for "Blissville Distiller- a sufficient disclosure ot y" The plaintiff states that he f tillery, and that tlie defend- to him. Tlic case of Waddell -. 22 ), is ''ii-i'il Th-i -:■■ $T(X> }• brig, ;: 'nitations. In this case the e\\ > some extent corroborated, i liability. He te-' '' ' and so informef en & Co. " ')t mnlcp "^' I NDisrr/ iy indicates that >;- J >. .tentative of "'^ tei>tif:e=i ro previous de; CO! 'tract, made thr i rcfc-ro to by name, of the warehouse, manager -during t] tion. From her dence, she kne"- Continental S idea of a cofkj a i circumstance to the respondent. All concur. '^ KNAPP. main cont of the pu:. .:.. i^urchase in hi- '^nly exceptioi; a request to d- the jury that a b. • ' r<^onally liable • r the name < .,-. tiler suppose acent for anothei :cpi to Liie ciia- '■ "It is quite immatcri. principal himself, if it be in such a case the agent tract as will bind him a Mew York. 71 N. Y. 348. . -, purchase-price of a i by the plaintiff to the I 1 ,c defendant purchased the , Steen & Co. It seems to have iU did in fact purchase the wheat, , v.-ho w"'-'' his principals, and the '. ' fendant at the time ij^ aether he made the upon ! es|X)nsibility. The •> :i -^r-f ■'<■ a nori-suit, and court cliarged makes himself id without dis- h>c so, although as a broker or irc of the principal, ' ,.i.ij by the seller, would ibihty. There were no crstand that the learned ' -^ his character or his . the other party. For "I-'- info such a COP- Debolt, 7 '■ I LIABILITY AGENT TO THIRD PARTY. 523 counsel for the appellant claims that it was erroneous in these re- spects ; but he insists, from the facts appearing in the case, a non- suit should have been granted or verdict ordered for the defendant. There was a sharp conflict of evidence between the parties as to what took place at the time of the contract. This court has no power to review the facts any farther than to ascertain whether they are sufficient upon any construction, which the jury were authorized to give them to justify a verdict, and whether any fact was con- clusively proved v/hich, as matter of law, entitled the defendant to a verdict. The credibility of witnesses, the construction of ambigu- ous evidence, and in general inferences to be drawn from circum- stances, are exclusively for the jury. These views have been so often reiterated by this court, that it seems idle to refer to them, and quite unnecessary to cite authorities to sustain them. It it natural that parties, who feel aggrieved by verdicts, should strug- gle to have what they regard as injustice remedied, and hence it is the almost daily experience of this court to have questions of fact pressed upon our attention in some form as questions of law, while, except in a few cases, the review of facts is confined by stat- ute to the special and general terms of the courts below. Our jurisdiction is fixed by the constitution and the statute, and we have no authority to depart from their limitations. In this case the evi- dence of the defendant, which was to some extent corroborated, if true, established clearly a case of non-liability. He testified that he purchased the wheat for Steen & Co., and so informed the plain- tiff, and that it was understood that Steen & Co. was to pay the purchase-price, and that the plaintiff did not make any claim against him at the time, nor for several years afterwards. But for the pur- pose of determining whether it was a legal error to deny the motion for non-suit, we must take the evidence of the plaintiff. If that was sufficient to sustain the action, the jury had a right to adopt it. The plaintiff testified that not only was the principal not disclosed, but that the defendant expressly purchased the wheat on his own credit, and directed that it be charged to him ; that it was charged to him, and a bill made against him, which he repeatedly promised to pay. If the jury adopted the plaintiff's evidence, it made clear a case of liability. (Storv' on Agency, §§ 266, 267; 44 N. Y. 349.) It is argued that because the defendant stated that the property was for "Blissville Distillery," and was to be delivered there, that was a sufficient disclosure of the principal, but this is not conclusive. The plaintiff states that he did not know the proprietors of the dis- tiller}-, and that the defendant directed the property to be charged to him. The case of Waddell v. iNIordecai (3 Hill [South Carolina Rep.] 22), is cited. That was an action against the defendant to recover $100 paid on a contract executed by the defendant as agent of a brig, and signed "M. C. Mordecai for the owners." The agent 524 UNDISCLOSED PRINCIPAL. had paid the money to his principals before the commencement of the action, and the court held that the plaintiffs could not recover. The learned judge who delivered the opinion reasoned that the dis- closure was sufficient, but put the decision upon the ground mainly, that it appearing that the defendant had acted in good faith and delivered the money to his principals, the equitable action for money had and received could not be sustained. The general current of authority is against the sufficiency of such a signing to relieve the agent from liability, but it is unnecessary to express an opinion of its correctness, because in this case the agent, if the plaintiff's evi- dence is to be credited, contracted expressly on his own credit. The other case depended on is Southwell v. Bowditch (i Law Rep. [Com. Pleas Div.] 100, and same case on appeal, p. 374). The contract signed by the defendant was : "I have this day sold by your order, and for your account to my principals, five tons," etc. The common pleas division held this' to be a contract of purchase by the broker, and that he was liable. The court of appeals re- versed the decision, holding that it was a contract of sale by the broker, and not of purchase, and that it must be construed accord- ing to its tenor like other contracts. This decision does not aid the defendant. The case of Raymond v. The Proprietors of the Crown and Eagle Mills (2 Met. 319), is in point for the plaintiff. The agent pur- chased goods saying they were for C. & E. Mills, and ordered them to be so marked. They were charged to the agent. The C. & E. Mills were a corporation. At the trial the judge charged that these facts were not conclusive evidence of the knowledge of the plain- tiffs, that R. was the agent, and the Crown and Eagle Mills the principal, and the supreme court sustained the decision, holding that the language was ambiguous, and was properly left to the jury. Here the distillery named was not a corporation, and its name, therefore, conveyed no idea of its owners. It is not sufficient that the seller may have the means of ascertaining the name of the prin- cipal. If so, the neglect to inquire might be deemed sufficient. He must have actual knowledge. There is no hardship in the rule of liability against the agents. They always have it in their own power to relieve themselves, and when they do not, it must be pre- sumed that they intend to be liable. The subsequent disclosure of the principals by the agent, and the commencement of an action against them is not conclusive of an election to hold them responsible only. (2 Met., supra; 10 [Queen's Bench L. R.] 57.) In the recent case of Beymer v. Bonsall (79 Pa. R. 298), it was held that neither the agent nor principal in such a case would be discharged short of satisfaction. The fact of com- mencing the action and the statements in the complaint were proper for the jury upon the contested fact, but they did not operate as a legal discharge. It was claimed by the plaintiff that the action L.'.'.ijiL.J i '. .-\(.7t.iN 1 iU iili 5-25 was c< 'liat a certain , :• 'en & Co., wlr.ch was untr discharge tI-ix. .! '^--ndant. case was proper 1} if the re it was the error or uv. 'n in the case jitstifving: . laust be affirmed. All concur. Judginent affirmed.' ^ See Greenbyrg v. Palmi ^24. UNDISCLOSED PRINCIPAL. . . . - money to li' ;tion, and the co; • :c learned judge wl; closure was sufficient, appearing '' red the mon iui.j. and received authority is again - agent from habiUty, br its correctness, ^ ■■' '"^ dence is to be other case dej-.tTaiea [Com. Pleas Div.] t contract signed b} your order, and f The common i ;)rinr'');ds before the commencement of the plaintiffs could not recover. e opinion reasoned tliat the dis- ccision upon the ground mainly, ut had n ' d faith and ^, the eq tor money tained. - urrent of of such ; relieve the unecessary *, an opinion of case the agei-., . , .c plaintiff's evi- cd expressly on h>s own credit. The uthwell V. Bowditch (i Law Rep. ^ame case on appeal, p. 374). The mt was: "I have this day sold by 'Hit to my principals, five tons," etc. ;•- kl this to be a contract of purchase IV V.-a])\c^ The court of appeals re- s a contract of sale by the ''■ ■-■■-*■ ' nstrued accord- tacts wei' tiffs, •' princi, that the ; jury. Her. therefore, con the seller may :,.. 'ipal. If so, the i iinist' have actual ] lability against t r to relieve t^ that they \u i iie subsequent ■ commencement of :. election to hold them : Bench L. R.] 57.) 1 Pa. R. 298), it was he": a case would be dischn mencing the action anti for the jury upon the con; legal discharge. It was -ors of the Crown and Eagle ibe plaintiff. The agent pur- C. & E. Mills, and ordered them itarged to the agent. The C. & E. Me trial the judge charged that these ace of the knowledge of the plain- nd the Crown and Eagle Mills the irt snst-ined the decision, holding rly left to the n, and its name, owners, it is not sufficient that ( pr' ;ini"n .be name of the prin- med sufficient. He V' i:s Hi.) jiirdship in the rule of always have it in their own ' not, it must be pre- nt, and the - ; -usive of an supra; 10 [Queen's ner v. Bonsall (79 ■')r principal in sucih The fact of com- nplaint were proper mkI not operate as a riff that the action LIABILITY AGENT TO THIRD PARTY. 525 was commenced upon the representation of the defendant, that a certain responsible person was a member of the firm of Steen & Co., which was untrue ; but, however this was, it did not discharge the defendant. The case was properly submitted to the jury, and if the result is wrong-, it was the error of the jury. We are unable to find any exception in the case justifying a reversal of the judgment, and it must be affirmed. All concur. Judgment affirmed.^ ^ See Greenbijrg v. Palmieri, 71 N. J. L. 83, supra, page 489. CHAPTER XI. DUTIES AND LIABILITIES OF PRINCIPAL TO AGENT. Section 1. — Duty to Compensate Agent. (a) IN GENERAL. FIRST NATIONAL BANK OF CLEBURNE v. GRAHAM. Court of Appeals of Texas. 22 S. W. Rep. iioi. White^ p. J. — Appellant, having recovered a judgment against appellees Graham & Lewis, made affidavit of and sued out a writ of garnishment against Deal. Deal answered the writ, stating that he was indebted to the defendant Graham, one of the firm of Gra- ham & Lewis, in the sum of $144.10, but which indebtedness he pleaded was exempt from garnishment, because the same was an attorney's fee due for personal legal services rendered as an attor- ney at law. This plea was sustained by the court, who rendered judgment discharging the garnishment, and for costs against ap- pellant. By the twenty-eighth section of the state constitution (article 16) it is declared that "no current wages for personal services shall ever be subject to garnishment;" and article 218, Rev. St., provides that "no current wages for personal services shall be subject to gar- nishment ; and, where it appears upon the trial that the garnishee is indebted to the defendant for such current Avages, the garnishee shall, nevertheless, be discharged as to such indebtedness." The question is, is an attorney's fee for services rendered as an attorney "such current wages for personal services" as comes within the constitutional and statutory exemption? "Current" means "rvmning ; now passing or present in its progress ;" and "wages" means "a compensation given to a hired person for his or her services." Webst. Diet. We think the proper construction to be placed then upon the term "current wages," is that they are such compensation paid for personal services as are to be paid for peri- odically, or from time to time, as the services are rendered, or the work is performed — progresses. It is where the party hired, by rendering the service, would be entitled to certain periodical pay- 526 nn< I orr, aptions in n V. Russel, ^ad Co. V. 1 well as the ^■nt. i\' ; fee for ^ case, or in the w.n of any amount ■-rmed "current Wat;-. ' 'V the day, \'- tor which h .uno ? We think nol 1 holding that the _ > "such c the c Histitution. "riinniiiG;' ; now c, i-.- ■'?( romr compensation .paid i odically, or from tin.^ . ivork is performed — ^pr^ recovered a judgement against it of and sued out a writ ered tlie writ, stating that :■>., one of the finii of Gra- ■'■ \\hich indebtedness he use the same was an rendered as an attor- . court, who rendered 4iruent» ajid fOr costs against ap- '.istitution (articlf' )nal services shal! ■lev. St., provides vibject to gar- ■'le garnishee garnishee : ce for s' ndered as an '•■■•^' --• comes within rent" mean=; and "wages' ^ for his or her ■j.r construction to bf iS that they are such. - are to be paid for peri vi' es are rendered, or the c the party hired, b;- "^";in i>eriodical pay- DUTY TO COMPENSATE AGENT. 527 ments. It is a service rendered for which the compensation is meas- ured by the time of its continuance, (Jenks v. Dyer, 102 Mass. 235; Somers v. KeHhcr, 115 Mass. 165) ; such compensation as in fact is paid for services where rendered by the hour, day, week, month, or year. In the use of the word "current" as prefixed to "wages," our constitutional and statutory provisions differ from such exemptions in most of the states. See Freem. Ex'ns, § 234 ; McLellan v. Young-, 54 Ga. 399; Flood v. Randall, 72 Me. 489; Allen v. Russel, 78 Ky. 105 ; Railroad Co. v. Barron, 83 111. 365 ; Railroad Co. v. Falkner, 49 Ala. 115. Signification must be given it, as well as the word "wages." In fact it limits, restricts, and qualifies the character of the wages for personal services, which it is the spirit and intent and policy of the law to exempt from garnishment. No wages not "current" are so exempt. Can an attorney's fee for legal services rendered or to be rendered in a single case, or in the transaction of a single matter, or in the trans- action of any amount of legal business, in any manner be correctly termed "current wages," where he has not been hired for his serv- ices by the day, week, or month, to be paid at the expiration of the time for which he was hired, and not in proportion to the business done ? We think not. Our conclusion is that the court below erred in holding that the attorney's fee due from appellee Deal, the gar- nishee, to the defendants, was exempt from garnishment.^ * * *2 HINDS V. HENRY. 1873. Supreme Court of New Jersey. 36 N. J. L. 328. Depue, J. — Upon the facts set out in the foregoing statement of the case, the plaintiff brought his action against the defendant to recover compensation for his services in negotiating the sale. At the circuit, the cause was tried by the court — a jury being waived — and the finding of the court was in favor of the defendant. The rule to show cause presents the question of the propriety of this finding, under the testimony produced before the court. The declaration contains the common counts for work and labor, ^ A portion of the opinion dealing with the sufficiency of the affidavit for garnishment is omitted. " See Heard v. Crum, 73 Miss. 157. In Hamberger v. Marcus, 157 Pa. St. 133, the exemption statute read as follows : "The wages of any laborer or the salary of any person in public or private employment shall not be liable to attachment in the hands of the employer.'' The court decided that a broker's commissions were not exempt from attachment under this statute. 528 DUTIES OF. PRINCIPAL TO AGENT. and services performed, and also a special count on the obligation of March 29, 1867. The plaintiff is not entitled to recover under the common counts. To entitle a broker to commissions for his services in negotiating a sale, the services must be rendered under an employment and re- tainer by his principal. Services rendered as a mere volunteer, without any employment, express or implied, will give no title to commissions. Edwards on Factors and Brokers 1/^4.; Cook v. Welch, 9 Allen 350. If the employment be by special agreement, the rights and liabilities of the parties will be determined by the terms of the agreement exclusively. Russell on Factors 155 ; Bower V. Jones, 8 Bing. 65; Warde v. Stuart, i C. B. (N. S.) 88; Jacobs V. Kolfif, 2 Hilton 133. The employment of the plaintiff to negotiate a sale was by the first agreement between the parties, which was made on the 6th of December, 1866. In express terms, the power to sell was limited to the 15th of January, 1867. The subsequent extension enlarged the time until the 15th of March. On this latter day, the authority of the plaintiff and his employment terminated by the limitation in the agreement of the parties. The contract for the sale was made with Laubach and Reigel, on the 28th of March. The case does not disclose any agreement, express or implied, between the parties, for continuing the plaintiff's agency after the former agreement had ex- pired. Consequently, the authority of the plaintiff was at an end when the contract with the purchasers was made. For services (if any) which the plaintiff had rendered toward the contract of sale, whilst the original employment subsisted, he could not have recov- ered for the reason that, under the agreement then in force, a sale on a day not later than the 15th of March, was a condition precedent to the obligation of that agreement. After the lapse of that time, the employment of the plaintiff ceased, and thereafter he acted as a volunteer, with no power to represent the defendant, or to conclude a contract in his name, except such as was derived from the subse- quent ratification of his acts by the defendant. The plaintiff testi- fies that the contract for sale was executed by himself, as the agent of the defendant, and by Laubach and Reigel, in duplicate, on the day it bears date, and that he delivered one copy to the de- fendant on the next day, when the obligation sued on was executed and given to him. The acceptance by the defendant of the contract to sell, made in his name by the plaintifif, as his agent, and the re- citals in the obligation were an adoption of the contract, which made it binding on the defendant, as between him and the purchasers, but did not operate to confer upon the plaintiff any right other than such as is expressed in the obligation that was then executed. The parties in that instrument put in writing the understanding and agreement as between themselves. If any other engagements had previously existed, they were merged in this agreement. It is mani- ^1v of r The sj)'.;' lal count ; nnfl'" idence ii> i<; t' ;:rht of tl a purcb which tl. ; is produce' ■iisation by ?• ;i- ;\ eut which the ' ^ iJ. (N. S.) .'"''- ing'. 22 How II Barb. 14,^ and is liable 11 to the pa er was emi • -S. Thus, in London, b ;e, a sh; tiating the hiring- of vess;... . .. , ... .. . . .. >.ommiss:- i. bartering is completed, and cannot recover compensation un . rharter party is signed, •' '' .' the negotiation was reu.- 1 fruitless by the fault of Read v. Rann, 10 B. & vS ; Broad v. Thomas. 7 I- . . Inan, 4 C. (& P. 289. ':e broker may also, by si . vith h-'^ prfnciprJ. «^.o act as to make his conr '■ bis efforts cannot con ,. rincipal, A contract r is bin n be maintained unt' .1.-^ Bing. 237 ; Alder v. . B. 583 ; Tomlis v. '■ ' lb. 2S7. In Bull V. r ^ale of a reversionar on the sum obtainf^^d '•roceeds paid ir ' ^v an application.. value of an anmi ; ■ before the In Alder v 't conveyance u ' ioes perloriiied, aiid h 29, 1867. ine plaintiff is not en To entitle a broker to c^ sale, the services must ■ t 'ocr by his p---- - - ^ v 'iliout any en; commissions, i Welch, 9 Allen the rights and i terms of ihe ,^!'t V. Jonc' V. Kolli The « fir?; bligatior. nmon count.^ negotiating : inent and re- Mil a:> .1 mere volunteer died, will give no title ti and Brokers 14 i ; Cook v ent be bv special agreement niined by thv i 155; Bowe' N. S.) 88; Jacob^ > negotiate a sale was by the which was made on the 6tli the power to sell was limited cxc a con Li quent r;. fies that thf of the defe' dav it bear delive as is expressed in parties ■" '•'''♦: ''""'■ agreenv r-reviousiy cxiSvCctj uic) limitation in le was made case does not ■I., ')"i%\cc:ii liie parties, for :ormer aj>-reement had ex- 'aintiff was at an en ide. " For services (1 ! the contract of sale, ould not have recoA^ ' then in force, a sale ' 'condition preceden*^ ipse of that time liter he acted as o)t, or to concind ■I from the ;■ ' he plaintiff • himself, as the ageic iv. tluplicate, on th copy to the de " was execute '- the contrac i , and the re ., which mad la and the purchasers, bu arn right other than sue then executed. Th e understanding an -iier engagements ha "^t is mam DUTY TO COMPENSATE AGENT. 529 fest that, independently of the obhgation of March 29, 1867, the plaintiff can have no right of action against the defendant, under either the common counts, or any other form of pleading. The special count is founded on this obligation. Can the plaintiff under the evidence in the cause recover upon it? The general rule is that the right of the broker to commissions is complete, when he has procured a purchaser able and willing to conclude a bargain on the terms on which the broker was authorized to sell. When such a purchaser is produced, the principal cannot defeat the agent's right to compensation by a refusal, without sufficient reason to fulfill the agreement which the agent had power to make. Prickett v. Badger, I C. B. (N. S.) 296; Lockwood v. Levick, 8 id. 603; Kock v. Em- merling, 22 How. 69 ; Cook v. Fiske, 12 Gray 491 ; Glent worth v. Luther, 21 Barb. 145. This rule rests upon the general usage of the business, and is liable to be modified or superseded by a special usage in relation to the particular transaction, in connection with which the broker was employed, or by special agreement between the parties. Thus, in London, by the established usage, a ship broker negotiating the hiring of vessels, is not entitled to commissions until the chartering is completed, and cannot recover compensation unless the charter party is signed, even though the negotiation was ren- dered fruitless by the fault of the employer. Read v. Rann, 10 B. & C. 438 ; Broad v. Thomas, 7 Bing. 99 ; Dalton v. Irvin, 4 C. |& P. 289. The broker may also, by special agreement with his principal, so contract as to make his compensation dependent on a contingency which his efforts cannot control, even though it relate to the acts of his principal. A contract of that character is binding, and no action can be maintained until the contingency has arisen. Bull v. Price, 7 Bing. 237 ; Alder v. Boyle, 4 C. B. 635 ; Moffat v. Laurie, 15 C. B. 583; Tombs v. Alexander, loi Mass. 255; Walker v. Tir- rell, ib. 257. In Bull v. Price the retainer was for the negotiation of the sale of a reversionary interest for a compensation of two per cent, on the sum obtained. The property was sold by the broker, and the proceeds paid into court, from which they could only be ob- tained by an application, and were subject to a deduction for costs, and the value of an annuity charged on the estate. It was held that an action before the money was got out of court, was commenced too soon. In Alder v. Boyle, upon, a negotiation between A and B for an exchange of advowsons, the defendant agreed to pay the broker £100, "one-third down and the remaining two-thirds when the abstract of conveyance is drawn out." The defendant delivered the abstract of his title, but no abstract was delivered by the other party, and nothing further being done the negotiation dropped. In an action by the broker for the last payment of two-thirds of his commissions, it was decided that the action could not be maintained 34 — Reinhard Cases. 530 DUTIES OF PRINCIPAL TO AGENT. — the event, on the happening- of which the plaintifif's right to that portion of the compensation agreed on, not having occurred. By the contract in this case, the defendant obligated himself to pay the commissions agreed on — one-half at the time the purchasers of the property should pay the first half of the purchase money, and the balance at the expiration of one year from the date of the deed, without interest. In an action on an obligation of this kind, the pleader must aver, and it must be proved at the trial, that the con- tingency on which the debt is payable has happened, or that it was defeated through some fault of the obligor. Holdipp v. Otway, 2 Saunders 106; Walker v. Tirell, loi iMass. 257; Moffatt v. Laurie, 15 C. B. 583. The contingency on which the plaintiff's compensa- tion was dependent has never arisen. To excuse the absence of proof on this subject, the plaintiff relies on a class of cases which hold that the obligee is relieved from the necessity of proving per- formance of the condition, where performance has been prevented by the act of the obligor. The cases on this subject are quite numer- pus. Malins v. Freeman, 4 Bing. (N. S.) 395 ; Doe v. Bancks, 4 B. & Aid. 401 ; Blanche v. Colburn, 8 Bing. 14 ; Hall v. Conder, 2 C. B. (N. S.) 22; Inchbald v. The Western Co., 17 id. 733; Horler v. Carptnter, 2 id. 56; Young v. Hunter, 2 Seld. 204; Hurlstone on Bonds 49. But they will be found, without exception, to be cases in which the obligee has prevented the performance of the condition by some wilful or fraudulent act, in violation of his own imdertaking, express or implied. In the present case, the cloud on the defendant's title, which ulti- mately broke off the contract to sell, was made known to the plaintiff when the power of attorney was given. The time when the title might be perfected was the subject of a letter, written by the defend- ant's father to the plaintiff, bearing date on the 20th of February, in which he says : "I left for Wilkesbarre to ascertain when, to a cer- tainty, the title can be completed, and I dare say it will not be safe to say earlier than May ist next, although it may be sooner." With this knowledge of a condition of the title that might create difficulty, the plaintiff concluded a contract for sale, binding the defendant to convey, on the ist of May, in fee simple, clear of all encum- brances. At the time of these transactions, it was expected that the suit in which the validity of the tax title was to be determined would be tried at the following April tenn. It was laid over at that term in good faith, on account of the non-return of a commission, taken out for the examination of an important witness in a foreign coun- try, and was not finally disposed of until February, 1868. When the obligation sued on was signed, the pending litigation was referred to. The plaintiff testified that the defendant then said, that if there was any likelihood of his losing the suit he would buy the parties off. At the time fixed for making the deed, the defendant's counsel ex- hibited to the counsel of the purchasers the proof — by the produc- vidence 1-1-,,. ,!. .. be disc < I was an actio, )ds and Stephen ation w propel -ht to til <■■ ed. :he con: 'limself to ■ . .linn./ •"'•chasers V, and uie deed. •\>i.ho kind, the p! . Uiat the con- t:- or that it was '1 . Otway, 2 - V- T.aurie, ■ pensa- ■ ice of P' which hi !: {iroving- per- f' .een prevented b ij <[uite numer- : •, Bancks, 4 B. . Conder, 2 C. ,.., 733 ; Horler v. 204; Hurl stone on ', to be cases in 1' the condition :akin^, 1 the title he defend- vbruary, in a\ vvhcn, to a cer- h \v?A not be safe >er." With ; difficulty, defendant ill encuni- • -d tliat tl:.- ined vvouli.i that term , taken there At t!'. iICU ll c ■ t?i r^ •■•■.■ f !-, ,. t' t' t ' . t b; .1 ■!! i vlu -J 5 1 W ' 1 ied at thr in 1 )■ g'H-uJ f:- :a- t:u DUTY TO COMPENSATE AGENT. 531 tion of receipts for the taxes — that the tax title was worthless ; and the clear weight of the evidence is, that the defendant offered to con- vey, leaving with the purchasers sufficient of the purchase money to indemnify them for any loss arising from an adverse termination of the litigation, or to convey the residue of the lands, omitting the tract which was in. controversy. The purchasers declined to accept anything but an unclouded title, and the contract with them fell through. The evidence shows that defendant made no fraudulent conceal- ment of the defect in his title, and that the plaintiff acted with full knowledge that his efforts might be made abortive by the defend- ant's inability to convey as w^as stipulated. The sale fell through, not in consequence of any default of the defendant, but was defeated by the occurrence of a contingency, the possibility of the happening of which was known to both parties, and with respect to which they expressly contracted. The result in the court below was correct, and the rule to show cause should be discharged.^ JONES V. WOODS. 1874. Supreme Court of Pennsylvania, 'jd Pa. St. 408. This was an action of assumpsit, brought June 5, 1871, by Robert Woods and Stephen Woods, partners, as R, & S. Woods, against Nelson Jones. The declaration was, in the first count, for the "sum of $500, the price and value of work, viz., professional services," etc. ; in the sec- ond, for $500, money received by defendant for plaintiffs' use ; in the third, for $500, money paid, etc., by plaintiffs for defendant ; in the fourth, for $500, found to be due by defendant to plaintiffs on an account stated. The damages were laid at $1,000. Robert Woods, one of the plaintiffs, testified that he had been em- ployed, with the late Judge Hepburn, by Thomas Jones. Nelson Jones and Pressley Jones, in relation to a sale of their property to the Pittsburg & Steubenville Railroad Company ; the company having bought their property for $66,000, made a payment of $5,000, and ^ "The right to compensation arises from the parties having placed them- selves in the relative positions of employer and employed, and assumed re- spectively the obligations and duties belonging to those positions." Cooley, J., in McDonald v. Boeing, 43 Mich. 394, 396. Where the contract of employment specifies that in a certain contingency no compensation is to be paid, a promise to pay will not be implied by law if the contingency happens. Zerrahn v. Ditson, 117 Mass. 553. 532 DUTIES OF PRINCIPAL TO AGENT. failed to pay the balance. The plaintiffs obtained a decree against the company for the money due on the original purchase, and after much litigation the money was obtained, and Nelson Jones, defend- ant, received his proportion from the railroad company. The witness said : "During all the time I was attorney for those three parties, I never heard a breath to the contrary from them or any one else." He further testified as to the amount and character of his services and their value. Thomas Jones was the principal man ; the defendant would sometimes meet him and ask him how they were getting along; the parties, except Nelson Jones, paid their share of plaintiffs' fees. On cross-examination he testified : "Mr (Nelson) Jones spoke to me occasionally and asked me how we were getting along with the suit. Judge Hepburn and I got up the title of the suit, and Nelson Jones signed it. The suit was brought in the name of Thomas Jones, Nelson Jones and Pressley Jones ; all signed the bill, and I appeared for them all. At different times, when one would die, I would suggest the death and put the names of the heirs upon the record. Mr. Nelson Jones knew of the proceedings all the time, all the way through ; and whenever it was necessary took part in it," Nelson Jones was at plaintiffs' office several times in relation to the case; witness entered charges in his book against all three parties for professional services in relation to this business. Thomas Jones called on him first in relation to the case ; he thought he saw Nelson Jones at that time too. He further said : "Mr. Nelson Jones certainly was my client as much as any gentleman I ever ap- peared for, and the idea that he disapproved of that proceeding is entirely new. I do not know that I asked him for the money, but I told him he ought to pay me his share of those fees. After he got his money from Stone, the property sold and everything straight, I thought I ought to have some fees from him, although I did not get any. I dropped his name out of that proceeding, although it enured to his benefit. I knew that he and his brother sometimes were not on very good terms, but Thomas attended to his own business and Nelson's too. Thomas managed the affairs of the whole estate." There were other witnesses, who testified to the performance of the professional services by the plaintiffs, and as to their value. Nelson Jones, the defendant, testified that he had never employed the plaintiffs in the business for the services for which this suit was brought ; he never talked with them about it, except to ask how they were getting along; nor authorized them to institute proceedings in his name ; he had other counsel ; never talked to plaintiffs about his business, or authorized his brother Thomas to commence these pro- ceedings or employ counsel. The defendant's second point with its answer was : 2. If the jury believe that Thomas Jones employed the plaintiffs to conduct the case and attend to the business, as testified to by de- 533 fendant, t'>-' -'or pay- " Affirmed. .. it alone of TJioi; services : the ad', • the fact, the ■ r the =;er^'5( . v I a i V , ; ip 1 . i -I ' ii the '27th of Aj ;ded their d. ' >o and the d;. e defendan!. . rror the an> ud his declarati'o lARSWOOD, J, — v. V .... -. the opinion that the learn. ...... erred in the answer to the defendant's second point; not t::ai lefendant was entitled to an absolute and unqualified affirmance for upon the testimony of the Dlaintiff. the jurv might have ! in findinjo; that " nd rati- '.oyment o^ th- ? and hi? hers. One of the that the defend.' lim occasionally; . . rought in the ;. aias Jones, Nelson J( [ones; all sigfned the bill he appeared for t^ ■ ' ' ings all the tim<, -sary took part in it. he had authorized ''- , however, the pi ourt proceeded t : dated to mislead the '•ne question in th( id find that t)ie ut of all the heir:. ., defend? It itT^l'vi *;'•:; itary service reni r.:^nnest, or sub.^^ ,..v... ,.... ■: that s.uch precedent re '> AGENT, -« pay the balar.t • 1; V for the mi rir; , icion the mor ant, received his propon sMid: "During- all tb-^ • never heard a hreatl further testified as t their value. Tlirvrn would soil" along ; the fees. On . th in P' eni:,i.._. ... told him ]•' his money thought I r any. T to his on very good Nelson's too. There were ,r., defend- 'lad con he witness ' ^•■•■- •' parties, I else." He services and , the defendant ; laui hiivv liiey were getting s. paid their share of plaintiffs' me occasionally and asked me hc> a [•'•^. Judge Hepburn and I got u{) signed it. The suit Avas brought .^«ley Jones; all U times, when : aiid put tlie names of the loiew of the proceedings levcr it was necessary fFs' office several times res in his book again > lation to this business. •> the case; he thought too. lie -irthersaid; "Mr. Nelson mncli ->. ^'v gentleman I ever ap- of that proceeding is 'it the money, but T fees. After he t: : r. ^-n r)' thing straight IS from 'Ugh I did not j^ ■ >ugh it enured unes were not • business and ■ i ole estate." ' e performance ^ tlieir value, ever employed 1 this suit was qsk bow thev ' acui to in.stiuitt er talked to plaii homas to commence these pr^ 'ic:> !:ii|Ji' o, ■^''-' >;,,-... judge left i; resulted in 1- either pre^. ijueiiL promise. It is unneces^- that the court <. be increased aft; Judgment re\ ■ from the pro- Msel. Yet the I he plaintiff's ■' Me to pa} r subse- ignment of error ■he declaration ti> awarded.^ . 88 Ind. 104. S79, the appellee executed 1. his agent to procure ;i ■ rv'ices fiv '^er cent; com- rfc:ad_y I. take th- is whether clear tliat th. . . A broker whc mission when b the money upon not depend up( ^ the loan, but tip' principal c : to accept thv in securing. In Grt sal' • '• ''^.se very th. had doi: wer- L.' 'iiPG to do, an rhe app' itied appellee that hi: •••"'"' -"^r- gave him a form of ■•.y the appellee, whc ^ ' - ';.the day ■e money ., and declined tr the only question - them. We ar- .ocure a loan is entitled to his con: ':.;r read} -"d able to lenu 'd. Hi imission doe:^ ■' ptance of act. The : by refusing ' iiave resulted . T. (N. ^.) 584, Lord Cairns ^^'='nt: "It appears to me that gents in this kind of work their liability if they ■ ■ an implied contra- es, see Hill v. Hi!i ^.. TERMINATION BEFORE TERM. 535 to be held answerable for what happened after. If the contracts afterwards were to go off from the caprice of the lender, or from the infirmity in the title, it would be immaterial to the plaintiffs." Green v. Reed, 3 F. & F. 226; Green v. Lucas, 31 L. T. (N. S.) 731. In principle the case of a broker negotiating a loan is the same as that of a broker negotiating a sale of property, and in the latter case it is uniformly held that the commissions are earned when a pur- chaser is found able and willing to buy on the terms proposed. In such cases the broker's right to compensation is held to accrue when he has furnished a purchaser, and does not depend upon the ultimate consummation of the sale. Lane v. Albright, 49 Ind. 275 ; Love v. Miller, 53 Ind. 294 (21 Am. 192) ; Reyman v. Mosher, 71 Ind. 596; Moses V. Bierling, 31 N. Y. 462; 24 Alb. Law J. 536; Mooney v. Elder, 56 N. Y. 238; Hart v. Hoffman, 44 How. Pr. 168; Prickett V. Badger, i C. B. (N. S.) 296. A real estate or loan broker may recover commissions, although he acts for both parties ; but it must appear that he acted openly and fairly, and that all the facts were known to both principals. A broker is regarded as a middleman, and not as an agent in whom peculiar trust and confidence are placed. Alexander v. North- western, etc.. University, 57 Ind. 466; Rowe v. Stevens, 53 N. Y. 621; Rupp V. Sampson, 16 Gray 398; Redfield v. Tegg, 38 N. Y. 212 ; Barry v. Schmidt, 27 Alb. L. J. 297. We have had no brief from the appellee, and our unaided efforts have not furnished us with any reason upon which the finding can be sustained. Judgment reversed.^ (b) WHEN AGENCY IS TERMINATED BEFORE EXPIRATION OF SPECIFIED TERM. HUNT, ADMR., et al. v. CRANE. 1857. High Court of Errors and Appeals of Mississippi. 33 Miss. 669. Handy, J. — This action was brought by the defendant in error to recover for the breach of a contract for work and labor, made by him with the plaintiffs in error for a specified term, the performance ^ ""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 bal- ance of his general account; and this allowance is made not only while the goods remain in specie, but after they are converted into money." Kent, Ch., in Bradford v. Kimberly, 3 Johns. Ch. (N. Y.) 431, 434. 536 DUTIES OF PRINCIPAL TO AGENT. of which he entered upon but was prevented, by the conduct of the plaintiffs in error, from completing. The declaration alleges that after he had undertaken the work, and was willing to complete his term according to the contract, he was told by the plaintiffs in error that if he continued in their service it must be at wages greatly be- low the price stipulated in their contract ; and in consequence of that refusal by them to comply with the terms of the contract, he was thrown out of employment, and after losing considerable time in ineffectually seeking other employment, he was then employed by another person at greatly reduced wages. A verdict and judgment was rendered for the plaintiff below. The first ground of error taken in behalf of the plaintiffs is that the declaration is not sufficient to support the verdict. The objec- tion is, that the declaration merely alleges that the defendant in error was "willing to work in accordance with his agreement," etc., and does not allege that he offered to do so. But it is averred that in consequence of the refusal of the plaintiffs in error to comply with the agreement, he was thrown out of employment. This re- fusal consisted in the notice given to him that if he remained longer in their service it must be at greatly reduced wages ; and it cannot be understood otherwise than as a notice that his engagement at the price agreed upon was discontinued, and that he was thrown out of employment. This is sufficient, especially after verdict. Again, it is objected that the court erred in refusing the instruc- tion asked in behalf of the plaintiffs in error, "that the jury could only find for the plaintiff such damages as he actually sustained." As an abstract proposition, this instruction was unobjectionable. But it did not fully state the rule by which the jury were to be gov- erned in assessing damages, with reference to the facts of the case before them. This was already stated to them in a clear and prac- tical manner by the instruction granted at the instance of the plain- tiff, that the measure of damages was the injury that the plaintiff had sustained, and that in estimating the damages they should find the sum stated in the contract, less the value of the plaintiff's serv- ices during the residue of the year, as proved, provided those wages were all or the best he could obtain. The rule here declared was plain and explicit, and readily enabled the jury to ascertain the amount of injury sustained; whereas that asked by the plaintiffs in error was uncertain, and susceptible of misapplication. It was un- necessary, and was therefore properly refused. Another objection is taken to the instruction that the burden of proof was on the defendants to show that the plaintiff could have obtained higher wages than he did obtain, and that it was sufficient for the plaintiff to show, or that it appeared in evidence, that he went to work after his discharge. We think that this rule was properly stated, under the circumstances of this case. The principle applicable to such cases is, that the employer is lia- I lie should s'. 1 order to be cnr . iCnt. This was But where he the best wages rest would impel ' ■he did not act r- unless it be sh< > -ictL he accepted 1 ' Judgment revt i860. Supreme Court of New York. 31 Barb, 381. XTION brought to recover wages, under a contract to work for the plaintiff for three yt- ' " ist, 18; ble quar- terly, and damages for a • tract by Mant. in ■.; -barging the plamritT V. . • .; 1857, without cau^c. in January, 1858, after t^ an action in this court a ..<.. ..1 claimed one quarter's w )r the "barge on the 26th of D -- lit issue was joined ?^ ported in favor of :' value of his lost tiii. second quarter of .the cor commenced, he is not ev. this action," The pla "" the trial in this ca;c. ntiff had been ready i . e his di? '-nd thrit Johnson, J, — The oniy qi fornier action, brougl ' ' • ^1 DUTIES OF PRINCIPAL TO / ch he entered up , revente jonduct of the p niuiiits in error. ' ^ •1 -OS that after he had under; :cte his term according to i i error that if he continue' rly be- low the price stipui jntract .cg of that refusal by tliem f' ' the ter . L.jt, he was thrown out of I after -:rable time in ineffectually sec . ^. ;■. "-rr?*v ■; employ"' ^^^' another person .a tfiea^ A verdi.- below. The firs :ffs is that the df 'it ihe vci.Uv;i. The objec- tion i- cges that The defendant in error was "will; ■ m accordance with his agreement," etc ard '' ■■• '■••^- • ' ■:"•*■■' +0 do so. But it is averred thai ir e plaintiffs in error to comply \«-7'- out of emr' ^ This re- iiisal r him that it ' led longer lt1 ' and it cannot b.- agement at the liiat he was thrown out of ;>fter verdict. ri refusing the instruc- Mi.jii> .;: ■:-, -r, "that the jury could /images as he actually sustained.'' -ii^ . : ' n was unobjectionable. But it ^' jury were to be gov- erned in it e facts of the case before thei a clear and prac- tical mann. . ., ranted (ance of the plain- tiff, that the . es was ; • that the plaintiff had sustained, iting tlv h they should find the sum stated ices during the were all or th plain and expl amount of injvr error was unctr... ^ cessary, and was x\nother objectic, ] loof was on the ('. obtained higher wages for the plaintiff to shov to work after his discb stated, under the circun; The principle applicable to such : " nlaintiff's serv- ed those wages ■ declared was ascertain the oy the plaintiffs in . ,,. cation. It was un- refused. •^-^truction that the burden of mt the plaintiff could have n, and that i' "' it d in evidem t this rule wa^ pro^i iy lat the employer is lia- TERMINATION BEFORE TERM. 537 ble to the employee for such clamags as the latter may sustain, after due diligence to obtain other and the best wages he can in some proper business. Where he fails to obtain employment, it is neces- sary that he should show that he was unable to do so after due dili- gence, in order to be entitled to recover for the time he was out of employment. This was the case in Prichard v. Martin, 27 Miss. 306. But where he obtains employment, the presumption is that he gets the best wages he can ; because the strong inducement of self- interest would impel him to do so, and the idea is most unreasonable that he did not act accordingly. Hence that presumption must pre- vail, unless it be shown by the adverse party, or otherwise appears, that he accepted less wages than he could have obtained. * * * Tudgment reversed.^ COLBURN V. WOODWORTH. i860. Supreme Court of New York. 31 Barb. 381. Action brought to recover wages, under a contract to work for the plaintiff for three years, from August ist, 1857, payable quar- terly, and damages for a breach of the contract by the defendant, in discharging the plaintiff from his employment, on the 26th Decem- ber, 1857, without cause. The defendant pleaded and proved that in January, 1858, after the plaintiff was discharged, he commenced an action in this court against the defendant, and in his complaint claimed one quarter's wages, and damages for the wrongful dis- charge on the 26th of December, set forth in the present complaint. That issue was joined and the cause referred, and the referee re- ported in favor of the plaintiff, for one quarter's wages (less the value of his lost time and payments made to him), and "that the second quarter of the contract not having expired when the suit was commenced, he is not entitled to recover for the pa3'ment of that in this action." The plaintiff had judgment on the report. The court, on the trial in this case, rejected evidence offered to show that the plaintiff had been ready to perform, and had been out of employment since his discharge, and granted a motion for a non-suit, on the ground that the former action was a bar to the present claim. The plaintiff's counsel excepted, and the court ordered that the excep- tions be heard at the general term. Johnson, J. — The only question here presented is, whether the former action, brought by the plaintiff, to recover damages against ^ The judgment was reversed on the ground that a deposition de bene esse was improperly admitted. The portion of the opinion dealing with this point is omitted. 538 DUTIES OF PRINCIPAL TO AGENT. the defendant for a breach of the same contract, is a bar to this ac- tion. The plaintiff, in the former action counted upon a breach of the contract by the defendant, in discharging him from further work and labor, under the contract, and refusing to allow him to work any longer under the same, and claimed damages by reason of such breach, and for loss of employment and inability to obtain other em- ployment on terms as favorable as he had secured by the agreement. The plaintiff in this action avers the same identical breach, and the right of action is predicated entirely upon it. It is true that in addi- tion to his other damages he now claims for wages according to the contract, for the three-quarters of the year ending on the ist of August, 1858. But this is not for services rendered under the agree- ment, but the claim for compensation is founded upon the alleged offer and readiness of the plaintiff to work according to the agree- ment, and the defendant's refusal to allow him to do so. This, how- ever, makes no difference in the nature of the action. It is still founded upon the breach of the contract by the defendant, and not upon its performance by the plaintiff. It is entirely clear that the two causes of action are identical, however the measure of damages claimed may be varied. On the former trial the referee, as it ap- pears, found as matter of fact that the defendant had wrongfully put an end to the contract as alleged in the complaint, without any fault on the part of the plaintiff, but held, nevertheless, as matter of law, that the plaintiff was not entitled to damages for such breach, but must wait until another payment became due by the terms of the agreement, before he could maintain an action for such cause. In this the referee was clearly mistaken. A party discharged under such circumstances has three remedies, either of which he may pur- sue at his election. First, he may bring a special action to recover the damages arising from such breach ; and this remedy he may pursue the moment the contract is broken. Secondly, he may treat the contract as rescinded, and immediately sue on the quantum meruit for the work actually performed. Or, thirdly, he may wait until the termination of the period for which he was hired, and claim as damages the wages agreed to be paid by the contract. (See 2 Smith's Lead. Cases p. 27, notes to Cutter v. Powell.) It is mani- fest, however, that a party under such circumstances could not pur- sue all these remedies in separate actions. An action upon one, and judgment upon it, would operate as a bar to any further action. This necessarily results from the doctrine that a party cannot split up a demand, and maintain several actions for the same cause. (Fish v. Folley, 6 Hill 54; Bendemagle v. Cocks, 19 Wend. 207.) It is claimed on the part of the plaintiff that the referee in the former action, having decided that no action could be maintained for the cause alleged, and judgment having been entered upon his report in accordance with such decision, it cannot operate as a bar to this action. But the rule is otherwise. If the party submits his a new tne V. Berick, Kj ■) n-e can be no doubt that ture indivisible. • any circuf^istai' ^^arily from the i- -nr.ract is not in i' -mt ninning with ieenoncr :e.nt cau^ ;e damages occasioned r.y sucii : .iie court upon hi'' ■ '•• '■'^'- '■ •nr entitle such other its performance. ^ 'u ;i i:*-- .il;i:.j: .'^ for a breach of that character, it is n- part of the party ' so far at least as i perates as a rescission b; jjarty thus situate brings damages has been filled, known, so as to be suscepl. He cannot sever them, ar due, when di dama'Tes the •n lu-iL- d for in case of . ' recover damai an election, on lIi;. Lhe contract at an end, concerned. The action er performance. If the fTi," entire measure of :ave all become on-suit was properiv ! :OSTIG.^ 1846. SU: \ on part of th -•e. The action v ichine \\ 53S DU ■RINCIPAL T( the defendant for a breach oi the same cc tion. The plaintiff, i- '•' '■ - • ■■-^'"-•n ilie contract by the d^ and labor, under the' lonj^or under the Sci- breach, and for loss > ployment on terms r The plaintiff iu right of action is tion to his other contract, for the un Aus^ust, T858, But ti/ ment, ar the In th^-^ such cir sue at h the dan pursue i the conL_ ^. meruit for the w until the termiii claim as damage:- 2 Smith's Lead. 1 fe^-t however, tl' jy results fi' , .. .. and main tail: Folk- y. 6 Hill 54 ; Bendt It is claimed on the p former action, having d' for the cause alleged, ar report in accordance witi, to this actir- +he.ruifc me sani :y upon claims f * >f the y services ntion is 'I to wo, to allow him 10 do so a bar to this ac- ■^-'M a breach of virther work •■■ ork any 'f such em- icnt. . and the -;...t in addi- • rding to the I the 1st of ■r the agree- . the all- 10 the aj.; This, how- tiature of the action. It is still ict by the defendant, and not '*■ is entirely clear that the the measure of damage-- ee, as it ap- i wrongfull\' without any as matter 01' ' for such bread; by the terms o' ^> for such cause discharged under iich he may pur action to rec remedy he lly, he may on the qua;: lly, he may wait • '■-"-- bired, and .t. (See ii is mani- ald not pur- pon one, and . action. This a pany cannot split up a the same caii=;'' C^l^h. v ■) Wend. 20; tf that the t •ion could 1 .IpOil IHS as a bar lie party submits his TERMINATION BEFORE TERM. 539 claim to be passed upon, it will operate as a bar, if the decision is erroneous, the same as though it were not, if his cause of action has then accrued. The error must be corrected in that action by review of the verdict or judgment, and not by a new action for the same cause. (Brockway v. Kinney, 2 John. 210; Platner v. Best, ii id. 530; Phillips V. Berick, 16 id. 136; Cowen & Hill's Notes, 842, 3, 956, 7-) There can be no doubt that the cause of action here alleged is in its nature indivisible. All the damages which the plaintiff could under any circumstances recover were such as flowed directly and necessarily from the breach, which is the sole cause of action. The contract is not in the nature of a continuing covenant, like a cove- nant running with land. It is idle to suppose that when such a con- tract has been once put an end to by one party entirely, though with- out sufficient cause, and the other party has brought his action for the damages occasioned by such breach, and had the judgment of the court upon his claim, the contract still remains in force, so as to entitle such other party to the compensation provided for in case of its performance. When the action is brought to recover damages for a breach of that character, it is necessarily an election, on the part of the party prosecuting it, to consider the contract at an end, so far at least as performance on his part is concerned. The action operates as a rescission by him as to further performance. If the party thus situate brings his action before the entire measure of damages has been filled, or before the damages have all become known, so as to be susceptible of proof, it is his folly, or misfortune. He cannot sever them, and recover part in one action and the resi- due, when discovered, in another. But the question as to what damages the plaintiff ought to recover as his compensation does not arise here. That question necessarily arose in the other action, and should have been there determined. That action being a bar, the non-suit was properly granted. New trial denied.^ COSTIGAN V. MOHAWK & HUDSON R. R. CO. 1846. Supreme Court of New York. 2 Den. 609. Motion on part of the plaintiff to set aside the report of a sole referee. The action was assumpsit on a contract by which the de- fendants agreed to employ the plaintiff to serve them as superin- tendent of their railroad. ^Accord: Richardson v. Eagle ^lachine Works, 78 Ind. 422. Compare Arm- field V. Nash, 31 Miss. 361. 540 DUTIES OF PRINCIPAL TO AGENT. The case proved was as follows : The defendants employed the plaintiff to superintend their railroad for one year, from May i, 1843 — at a salary of $1,500 for the year, together with the use of a dwelling house worth $150 per annum. He commenced the service and continued in the employment until July ist of that year, when he was dismissed by them without cause. Upon this he gave them notice that he was ready to proceed and perform his contract, and that he should claim his salary for the entire year, according to the agreement. He was not, however allowed to go on with the busi- ness, and remained wholly imoccupied for the residue of the year, although at all times ready to serve according to his contract. The referee reported $402.93 to be due the plaintiff; which was arrived at by allowing him $625 on account of salary, and $62.50 for being deprived of the house, and deducting $284.59 which had been paid. He was of opinion that three months was a reasonable time for the plaintiff to find other employment, and accordingly al- lowed him the amount which would have been due for five months' services. Beardsley, J. — As a general principle, nothing is better settled than that upon these facts the plaintiff is entitled to recover full pay for the entire year. He was ready during the whole time to perform his agreement, and was in no respect in fault. The contract was in full force in favor of the plaintiff, although it had been broken by the defendants. In general, in such cases, the plaintiff has a right to full pay. The rule has been applied to contracts for the hire of clerks, agents, and laborers, for a year or a shorter time, as also to the hire of domestic servants, where the contract may usually be de- termined by a month's notice, or on payment of a month's wages. The authorities are full and decisive upon this subject: Chit. Con., 5th Am. ed., 575-581 ; i Chit. Gen. Pr. 72-83 ; Browne on Actions at Law 181-185, 504, 505 ; Besston v. Collyer, 4 Bing. 309; Fawcett v. Cash. 5 Barn. & Adol. 904; Williams v. Byrne, 7 Ad. & El. 177; French v. Brookes, 6 Bing. 354 ; Gandell v. Pontigny, 4 Camp. 375 ; Robinson v. Hindman, 3 Esp. 235 ; Smith v. Kingsford, 3 Scott 279 ; Smith v. Hayward, 7 Ad. |& El. 544. In no case which I have been able to find, and we were referred to none of that character, has it ever been held or even urged by counsel, that the amount agreed to be paid should be reduced, upon the supposition that the person dismissed might have found other employment for the whole or some part of the unexpired term during which he had engaged to serve the defendant. And yet this objection might be taken in every such case, and in most of them the presumption would be much more forcible than in the case at bar. The entire novelty of such a defense affords a very strong if not a decisive argument against its solidity : Duke of Newcastle v. Clark, 8 Taunt. 602. Nor do I find any case in which it was proved that other employment was offered to the plaintiff after his dismissal, and that his recovery was defeated or CjM I for th ,ere --rlv id oiherwibir ... . ^ the time f :■ payment : Ab. Sh.. hns. 5t8- ''■■■-' - . n 51, 5-, And upon ■lish a given •.nd fails to do so, lie ' y him, deducting ;iersons, for frei^' ■tipulated to fuiu. - If.ast 232; Puller v. Hal Is' lay .>6, 73. Upon thi' !e, a;: j I'.r. /. Com<:t'Dck. 21 V -7 ^34 Am. '*> there , lortatioi •Vhitehall to AlbanVj but \n action was thereupon ';nd the contract and its ^ Tits offered to prove thai : id not exceed five dollars" uience in order to es' ate certainty, from t lear that any objection w. eport shows that the e-N nfer then, tliat the offer ■ ent evidence, that the pi .oat instead of the horses ontract, v.:is but small, ' ■a'; the amount the plai^ cr. So this court ht : ■ ' court below, the j- liancellor, as stated in tli. ' ''"'e same effect, air ' ent to admit of « '>es it a^ in faci- le V. Catara vsrrnii, the case of bunv.:,- •■ Dec. 2<^2), was decided. The fifty-five dollars for ■ -, on the canal, from 'y with their agreement. LllC T 540 Di/ni case proved wa- ' to superintc!"' salary of $• iiv ' Hise vvor ai .ed in tl, he. vvri.-. viismissed' iv notice that he \va~. that he should agreement. Ih ness, and rema' although at '■ The rcfc arrived at for bf'ine ter. The auvlior/ 5th Am. eci at I.ivv 18 T V. (."^asti •:; Freiic! Robinson 279; Smith l>een able to au Icici" it '^■'^^r bpf I If part of the .i)e defend-'-'V s.-.ch case, and i fLM-cible tha ' r'fiCrds n v^ Duke o' in wh). ■' intiff after his dismi> employed the ^lay I, 1843 use of a iheni r, and mg to the ...ii the busi V of th'C yea; vf aci:< ;^ ontract. lo be du if; which w.' ^ on ace y, and $62.50 and dciJ 59 which had iiat thre-e n.i' - a reasonable cr employmci- , iccordinglv al- uld have been due for five month . nothing- is better settle ^r full pay '■:> perform "iiiract was i' ' 1 een broken 1. lintiff has a rigl cts for the hire • er time, as also > iiay usually !: . ■ : a Tiionth's \. ■t: Chit. Cou Me on Action . jog ; Fawcetr vd. & EI. T77; ^ randell v. ] 4 Camp. 375 ; Smith -ford, 3 Scott 544. Ij; which I have ,,1 01 that character, '• that the amount >ition that the L for the whole ri^ had engaged to ■'X- taken in every aid be much more .<■ , , , 1 , . ; , '- N or dt) ■ case 1 nt was the overy was defeated or TERMINATION BEFORE TERM. 54^ diminished because he refused to accept of such proffered em- ployment. It has, however, been held, and rightly so, as I think, that where a seaman hired for the outward and return voyage, was improperly dismissed by the captain before the service was completed, a re- covery of wages by the seaman for the whole time, was proper, de- ducting what he had otherwise received for his services after his dis- missal and during the time for which his employer was bound to make payment : Ab. Sh., 4th Am. ed., 442, 443 ; Hoyt v. Wildfire, 3 Johns. 518; Ward v. xA-mes, 9 id. 138; Emerson v. Rowland, i Mason 51, 52. And upon the same principle, where a merchant engaged to fur- nish a given quantity of freight for a ship, for a particular voyage, and fails to do so, he must pay dead freight, to the amount so agreed by him, deducting whatever may have been received from other persons, for freight taken in lieu of that which the merchant had stipulated to furnish: Abbott 2'/y, 278; Puller v. Staniforth, 11 East 232; Puller v. Halliday, 12 id. 494; Kleine v. Catara, 2 Gall. 66, "/T,. Upon this principle, as I understand, the case of Shannon v. Comstock, 21 Wend. 457 (34 Am. Dec. 262), was decided. The defendants there engaged to pay the plaintiffs fifty-five dollars for the transportation of a certain number of horses, on the canal, from Whitehall to Albany, but failed to comply with their agreement. An action was thereupon brought to recover the fifty-five dollars, and the contract and its violation having been shown, "the defend- ants offered to prove that the damages sustained by the plaintiffs did not exceed five dollars." What facts were offered to be given in evidence in order to establish this result, cannot be collected with absolute certainty, from the report of the case, but it does not ap- pear that any objection was made to the form of the offer, and the report shows that the evidence was objected to and excluded. I infer then, that the offer of the defendants was to show, by compe- tent evidence, that the plaintiffs took other freight on board their boat instead of the horses, so that their loss, by the violation of this contract, was but small. Upon the ground already stated, that loss was the amount the plaintiff's were in law and justice entitled to recover. So this court held, and as the evidence had been rejected in the court below, the judgment was reversed. The views of the chancellor, as stated in the case of Taylor v. Read, 4 Paige 571, are to the same effect, and the propriety of the rule seems to me too apparent to admit of doubt. In these cases it appeared, or was offered to be shown, that the plaintiffs had in fact performed services for others, and for which they had been paid, in lieu of those they had bound themselves to perform for the defendants, and which the latter had refused to receive. In Heckscher v. McCrea, 24 Wend. 304, the court went a step further. That case arose in the superior court of the city of 542 DUTIES OF PRINCIPAL TO AGENT. New York, where McCrea was plaintiff. It was an action for dead freight which the plaintiff claimed under a special contract with the defendants. They had agreed with the plaintiff to furnish a given number of tons of freight, at a certain price, for a return cargo from China to New York in the plaintiff's ship. A part of the freight was furnished by the defendants, as agreed, but they fell short about one hundred and thirty tons. The agents for the defendants at Canton, where the ship then was, having no more freight to put on board for the defendants, offered to supply the de- ficiency, from the goods of other persons in their hands, which the agents were authorized to ship to the United States : such shipment to be made at a reduced, although at the then current rate, but with an express agreement that receiving this freight on such reduced terms should not interfere with the original arrangement between the parties to this suit. This offer was declined, and to the extent of this deficiency the ship came home empty. The action was to re- cover for this deficient freight. The court held that the plaintiff should have taken the freight offered, although at a rate below what the defendants had agreed to pay : that so far it would have relieved the defendants without doing injury tO' the plaintiff, and by which about two-thirds of the amount now claimed might have been saved. In all the cases I have cited, the facts on which the delinquent party sought to bring the amount to be recovered, below the sum agreed to be paid, were proved or offered to be proved on the trial. Nothing was left to inference or presumption, and it was virtually conceded that the onus of the defense rested on the defendant. They are also cases in which the plaintiffs had either earned and received money from others, during the time when they must have been em- ployed in fulfilling their contract with the defendants, or in which they might have earned it in a business of the same character and description with that which th.ey had engaged with the defendants to perform. The principles established by the cases referred to seem to me just, and although I have found no case in which they have been applied tO' such an engagement as that between these parties, still I should have no hesitation, where the facts would allow it to be done, to apply them to such a case as this. But first of all the defense set up should be proved by the one who sets it up. He seeks to be benefited by a particular matter of fact, and he should therefore prove the matter alleged by him. The rule requires him to prove an affinnative fact, whereas the opposite rule would call upon the plaintiff to prove a negative, and therefore the proof should come from the defendant. He is the wrong-doer, and presumptions between him and the person wronged should be made in favor of the latter. For this reason therefore the onus must in all such cases be upon the defendant. Had it been shown, in the case at bar, that the plaintiff, after his ;i; •; ha'. ■■ Cueing; the re"n\. c: icca busincs- ■'■'■ ^ '■ied on in tl the plaintiff ladv. and tl' I think \\ 'lintiflf mighr ^;^\. ' u;-i,ii , ;uj i i \he renort, in n; .;\ Tf the df g-iven, t: live hunu. . ., : , . lars, and for a full year, paid toward the c-^— Report set asi'' agent, ai >rk, where ^ :cion for dead ' ' ' with 'lih a •ci oi h etum China ;art of ;ght was but they -. .. rt ahou' T"^'- 'l'"' defendant.^ at ' ire '■ ' ■ ■•'■ .\ l'i^■ uc- lioi vhich the af,' ' shipment to , , but with such reduced uent between to the extent ion was to re- the plaintiff ne dehnquent '"' the sum the trial. aiK.. II \\:!S virtually the defendant. Thev pi in which dc m to me u be done, ■d by the one ' '•■ matter of him. The nius must it been shov ihe plaintiff, after his TERMINATIOX BEFORE TERM. 543 dismissal had engaged in other business, that might very well have reduced the amount which the defendants otherwise ought to pay. For this the cases I have referred to would furnish sufficient au- thority. But here, it appears that the plaintifif was not occupied dur- ing any part of the time from the period of dismissal to the close of the year. Again, had it been shown on the trial, that employment of the same general nature and description with that which the contract between these parties contemplated, had been offered to the plaintiff, and had been refused by him, that might have furnished a ground for reducing the recovery below the stipulated amount. It should have been business of the same character and description, and to be car- ried on in the same region. The defendants had agreed to employ the plaintiff in superintending a railroad from Alban}- to Schenec- tady, and they cannot insist that he should, in order to relieve their pockets, take up the business of a farmer or a merchant. Nor could they recjuire him to leave his home and place of residence, to en- gage in business of the same character with diat in wdiich he had been employed by the defendants. I think we cannot, as between these parties, presume that the plaintiff' might have been so employed and that he refused ; and there- fore the report, in my judgment, should be set aside. If the defend- ants can prove that such employment was offered, it may reduce the amount otherwise recoverable ; but if such proof shall not be given, the report, I think, should be for the salary at one thousand five hundred dollars a year, and rent at one hundred and fifty dol- lars, and for a full year, deducting the amount which may have been paid toward the same. Report set aside. ^ COOPER, J., IN TIMBERLAKE v. THAYER. 1893. Supreme Court of ^Mississippi. 71 Miss. 279. If we were authorized to make the law, instead of announcing it as it is already made, we would unhesitatingly hold that one con- tracting to render personal service to another for a specified time, could, upon breach of the contract by himself, recover from that ^ If the agent, after his discharge, has engaged in other employment, the original employer, when sued for breach of his agreement, is entitled to have deducted from the damages whatever the agent received from the subsequent employment. Williams v. Anderson, 9 Minn. 50; Sutherland v. Wyer, 67 I\Ie. 64. It is the duty of the employee, when wrongfully discharged, to seek other employment of similar kind. Williams v. Chicago Coal Co., 60 111. 149. See Strauss v. Meertief, 64 Ala. 299. 544 DUTIES OF PRINCIPAL TO AGENT. other for the vakie of the service rendered by him and received by that other, subject to a diminution of his demand to the extent of the damage flowing from his breach of contract. In Britton v. Turner, 6 N. H. 481, Judge Parker demonstrates, in an admirable and powerful opinion, the equity of such a rule ; and it was held in that case that such was the rule of the common law. The courts of some of the states have followed or been influenced by that opinion, and have overturned or mitigated the rigorous rule of the common law. Pixler V. Nicholas, 8 Iowa 106 (74 Am. Dec. 298) ; Coe v. Smith, 4 Ind. 79 (58 Am. Dec. 618) ; Riggs v. Howe, 25 Tex. Supp. 456 (78 Am. Dec. 584) ; Chamblee v. Baker, 95 N. C. 98; Purcell v. McComber, 1 1 Neb. 209. But the decided weight of authority is to the contrary. Lawson on Contracts, § 470, n. 4, and authorities there cited. And it was decided at an early day in this state that an entire contract of this character could not be apportioned, and that under the circumstances named no recovery could be had by the party guilty of the breach of contract ; that he could not recover on the special contract because he himself had not performed it, nor upon quantum meruit, because of the existence of the special contract. Wooten V. Read, 2 Smed. & M. 585. In Hariston v. Sale, 6 Smed. & M. 634, and Robinson v. Sanders, 24 Miss. 391, it was held that an overseer's contract with his employer, though made for a definite time, was not an entire contract, and recoveries were allowed on the common counts. The cases relied on to support the rule announced in these de- cisions were Byrd v. Boyd, 2 McCord (So. Car.) 246; Eaken v. Harrison, id. 249 ; ]\IcClure v. Pyatt, id. 26. Of these, the leading cases is Byrd v. Boyd ; the others simply follow it. In Byrd v. Boyd, the court evidently legislates the exception into the law, and so, in effect, declared, for, after referring to the rule of the common law, the court proceeds to say : "There is, however, a third class of cases for which it is necessary to provide," and then declares that these cases for which it is necessary for the court "to provide" are "those where the employer reaps the full benefit of the services which have been rendered, but some circumstance occurs which renders his dis- charging the overseer necessary and justifiable, and that, perhaps, not immediately connected with the contract, as in the present case." The South Carolina court put its decision expressly upon the ground of expediency, and confined its effect, by necessary implica- tion, to the particular sort of contract under consideration. Since the abolition of slavery we have no such contracts, stride, as those which formerly existed between employer and overseer, and the de- cisions in Wooten v. Reed, and Hamilton v. Sale have no field of operation. The instructions for the plaintiff were properly given.^ ^See Davis v. Maxwell, 12 Met. (Mass.) 286. ndaiit appcr' N, J.— The r plaintiff's .v ith: and iht: rich was reasKji-. ecial contract; h\ •aciondant six m* ■ of the six moi' . the plaintit: ...„ son that th( n of the clefendai ■ for the purpose.-> lie contract, and the ; V, anu iiitn icn ■ t the defendriTir , 'ith to moni' --ial damag'e.s ,, . ^ part of plaintiff; but -atived the rigfht of tii 'unt of his non-i>eff' en, other q; .red. The c siOiciy Oil tiie g\i"oiiiia f nir months, or from the defendant of -' *-he contract on > asked, which ■n the evidence in tl the deff H''"^?';*" hese re .- Gl ill: ■It for ' 544 Df >r the valu« of i ' 'subject to ■: ving fro ■■ 4S1, Jud .;1 opinion, t-. 't such V -tates h: have overturncf' Pixler V. Nichi ' 4 Irtd. 79 (58 : (78 Am. Dec. McComber, 11 the con cited . cor con Id xivcd by ■ cat of tlie . Turner, ;'; ^? and :• that some ., and coniiiion lav. Coe V. Smitli ■X. Supp. 45> )i> ; Purcell \ luthority is i.^ rhorities there that an entire ;id' that under '"V the party er on the- .. nor upon - cial contract. le, 6 Smed. & < held that an for a definite ie allowed on th ef: th' been rendered, The insti mpunced in these de- Car.) 246; Eaken v. ^"*f these, the leading In Byrd v. Boyd. he law, and so, in the common law, " cases these ire "those hich have :s his dis- j!'-iiriv..:!i-, :wir; :itai, perhaps, ntract, as in the present case." upon the V implica- )n. Since . as those id the de- ■ u.iv.: no field of [uoperly given. ^ laxwell. TERMINATION BEFORE TERM. 545 DIEFENBACK v. STARK. 1883. Supreme Court of Wisconsin. 56 Wis. 463. The defendant appealed from a judgment in favor of plaintiff. Orton, J. — The first count of the complaint is for four months' labor of plaintiff's son, for which the defendant promised to pay $16 per month; and the second count is for four months' labor of the son, which was reasonably worth $16 per month. The answer sets up a special contract by which the plaintiff's son was to work for the defendant six months, at $16 per month, to be paid at the expira- tion of the six months, and avers the non-performance of the con- tract by the plaintiff. It appears from the testimony of the plaintiff and the son that the contract was that the son was to work on the farm of the defendant six m.onths from April i, for $16 per month, and for the purposes of the case in this court, this must be accepted as the contract, and the whole of it. The defendant and another wit- ness present testified to the contract as stated in the answer. It was also proved that the son worked under this contract for four months only, and then left the service of the defendant solely on the ground that the defendant refused to pay him for such four months, or from month to month. There was evidence offered for the defendant of special damages by reason of the non-fulfilment of the contract on the part of plaintiff ; but as in our view, the instructions asked, which negatived the right of the plaintiff to recover under the evidence on account of his non-performance of the contract, ought to have been given, other questions raised by the exceptions need not be con- sidered. The county court refused to instruct the jury as requested by the defendant's counsel, as follows: i. That the contract (as stated by the plaintiff and his son) was an entire contract ; 2, that from the evidence in the case, the money due on the contract in question wa.s payable the ist day of October; 3, that the action was prematurely brought ; 4, that the plaintiff was not entitled to recover ; 5, that if you find the plaintiff's boy left of his own accord, without fault of the defendant, the plaintiff cannot recover; 6, that the fact that the defendant did not pay plaintiff's boy money when asked for, was not sufficient reason for the boy to leave. The point of these requests to instruct the jury was substantially, that the plaintiff* could not recover in this action on the contract, or upon the common count for work and labor, without showing full performance of the contract on his part by the labor of the son for the defendant for the whole six months, unless excused by the act of God or the fault of the defendant, or that the money on the con- tract was due only at the expiration of that time, upon such per- formance; or in other words, that this contract was an entirety, and Txcither party could recover of the other without full performance 35 — Reinhard Cases. 546 DUTIES OF PRINCIPAL TO AGENT. on his part, or legal excuse for non-performance. The county court committed, in our opinion, the double error of refusing- to give these instructions, and submitting to the jury the question whether the con- tract was an entire one, or whether the money was due monthly or at the end of the six months. It was the dut}' of the court to con- strue this contract, as testified to by the plaintiff himself, and not leave such a question to the jury. Ranney v. Higby, 5 Wis. 62; Mowry v. Wood, 12 id. 413; Martineau v. Steele, 14 id. 272; and numerous other cases which might be cited to swell this opinion, but which need not be, because the decisions are all one way on the question. The contract, according to the testimony of the plaintiff, was an entirety, and no recovery could be had without proof of full performance, or performance excused, and the compensation was to be paid only at the end of the six months, on full performance by the plaintiff, and the court should have so instructed the jury, or have given the instructions asked by the defendant, which im- ported the same thing, and this presents the real question in the case upon this appeal ; for the plaintiff, on this evidence and the in- structions, obtained a verdict in his favor at the rate of $16 per month for four months, and obtained judgment therefor. From some general language in the text-books, as well as in some opinions in cases of other contracts, it would seem as if this ques- tion in respect to contracts for mere work and labor, or for mere personal service, was in conflict. But we have the authority of so able and eminent a jurist as Judge Parsons for saying that there is really but one case, and that is the one cited in the brief of the learned counsel for the respondent, in which it is held that on a contract for services merely, a recovery can be had upon a quantum meruit for the value of the service already rendered under such a contract, without a full performance. That case is the noted one of Britton v. Turner, 6 N. H. 481 ; 26 Am. Dec. 713. But it seems there were other cases in the same state, and in at least one other state, before that text was written, and there have been cases since in Iowa, and perhaps in some other states, to the same effect. It is safe to say, however, that they are against the current of authority in this country and in England, and certainly against reason. To allow suit in such cases upon a quantum meruit, without full per- formance and recoupment of damages, would in most cases be quite inadequate to indemnify the employer under the ordinary rule of such damages. The distinction between such a contract and building contracts, and some others, in which this equitable doctrine has been applied, is very clear and distinct and rests upon at least plausible reasons. In respect to the latter contracts it is said in i Story on Cont., § 2y : "li, however, a party acting honestly, and with bo)ia fide intention of fulfilling the contract, performs it substantially, but fails in some comparatively slight particular, he is entitled to a fair com.pensa- !-• ■• TERM. "-.n accordinc: eceivins: credit for • ■ " . ^ itions." 'n the class ■ -^d by thi.i -iS or in any text-bo' n of a building in a . the employer acce]) ^tcd tiiat it W.J I to some ci ' meruit, k ding to tracts which fall v reasons for the di?: rvices, or for wor The criterion is Com., §33)-: "Wb feat the objects of j-uch failure been a is perhaps, a better and nie criierion a-iiecluig ail such con- tracts stated in 2 Pars, on _ '22, and that is the possibility or impossibility of a certain ap: nt of benefits, according to the compensation in the cctr ■•: part performance only; or as stated by the author: liat w^here parties make a contract which is noi ' ' ' '.-,n can be recovered in an \^ for which the consider subsequent section the r all contracts, and especiall}- and the casual reader ma^ one party, without the faulr the contract, in such a n^ if the other party have vvould be unjust to ^i ing." But in addition ■tion, it is said in tlu: e authorities, and cif ion, that contracts f - ■ 'd down in the text. on contracts for sei \ 't the c<:!. ■ : 'But tlon ing \?V9. ■ . t, or icgUi -- •.•:y court !. in our O]"*' e these The con- •ithly or at the end of the it: was ; •urt to con- strue this contrac ■,,^ },x- . '+ ?ind not leave such a qw \'is. 62; -''.-' -ry V. W'^.^" /. 272; and . rous otii .opinion, but 'i need i- 'le docu-'. lie way on the -:;on. Tl- iincT to ' ■ of the plaintiff. was an ei ue had wu liout proof of full per form a: ' .:. and the zompensation was to be pai .^ix months, on full performance bv tl- • • .1 .-njuld have so in structed the jury, .ions asked by the defendant, which im- ■'■■. in the the in- ■i $16 per month ^, as well as in some ■■-'■' as if this ques- or, or for mere ;. i.-M vc rj:ivL ire authority of so (]go Pnrt.Mm for saying that there is in the brief of the It is held that on a recovery can be had upon a quantum meruit for th-j rvice aire'. ' r.^pJered imder such a .contract, withr aance, ! is the noted one of 'Brit':- ■ '■-■ w ; 1 ■ ;. But it seems there ast one other state, ■;ince in ,:. It is ^alc to bay, i> arc aj.' >i authority ]■:. 'his conn! ■ 1. an reason. To suit in ithout full per- ■■•-' and ,. V -t cases be quite e to in!.; rdinary rule of The rl. i building contracts. ucnois. ■'c .JocLriue has l>een applied, ear and in at least plr.'.-'ible reasons. to the : Id in I Stor} ' . § 27 : >^ a pa: . . ,1 >\; th bona ,.-. .;._:itian of tulfV -ontract, 1 iaily, but fails in some cotnpiuativii^' slight ] . ' to a fair cx)mpensa- I TERMINATION BEFORE TERM. 547 tion according to the contract, the other party receiving credit for whatever loss or damage he may have sustained by these deviations." Even beyond this rule, there are other cases, which fall within the class of building contracts, the doctrine of which is as well stated by this court in Taylor v. Williams, 6 Wis. 363, as in any other cases or in any text-books, where the contract was for the construction of a building in a certain manner, and in a certain time, and where the employer accepted and used the building, and thereby virtually admitted that it was some benefit to him, and that the builder was entitled to some compensation therefor, he was allowed to recover a quantum meruit, notwithstanding he had not completed the work fully according to the contract. Without further specifying con- tracts which fall within this principle, it is sufficient to state the reasons for the distinction between them and a contract for hiring services, or for work and labor simply. The criterion is as well stated by the same author (i Story on Cont., § 33) : "Wherever the failure as to part would materially de- feat the objects of the contract, and would have affected (it), had such failure been anticipated, the contract would be entire." There is perhaps, a better and more certain criterion affecting all such con- tracts stated in 2 Pars, on Cont., § 522, and that is the possibility or impossibility of a certain apportionment of benefits, according to the compensation in the contract, in case of part performance only; or as stated by the author : "We have seen that where parties make a contract which is not apportionable, no part of the consideration can be recovered in an action on the contract until the whole of that for which the consideration was to be paid is performed." In the subsequent section the rule stated may be broad enough to embrace all contracts, and especially contracts for service, or work and labor, and the casual reader may be misled by it. The language is : "If one party, without the fault of the other, fails to perform his side of the contract, in such a manner as to enable him to sue upon it, still if the other party have derived a benefit from the part performance, it would be unjust to allow him to retain that without paying any- thing." But in addition to the criterion laid down in the previous section, it is said in the note which contains a ver>^ able review of the authorities, and citation of many authorities to sustain the po- sition, that contracts for service are not embraced within the rule laid down in the text. "We are not aware that there are any cases upon contracts for service fully sustaining the proposition in the text, except the celebrated one of Britton v. Turner, 6 N. H. 481. After quoting largely from the opinion in that case, the note proceeds to say: "But the courts of other states have thus far shown little disposition to adopt the views of the learned judge. Thus in EI- dridge v. Rowe, 2 Gilm. 91, the court held upon a similar state of facts, that the plaintiff was not entitled to recover." "An entire contract is one, the consideration of which is entire on 548 DUTIES OF PRINCIPAL TO AGENT. both sides. The entire fulfihiient of the promise by either, in the absence of any agreement to the contrary or waiver, is a condition precedent to the fulfihiient of any part of the promise by the other." "The principle upon which this rule is founded seems to be that as the contract is founded upon a consideration dependent upon the entire performance thereof, if from any cause it be not wholly per- formed, the casus foederis does not arise, and the law will not make provision for exigencies against which the parties have neglected to fortify themselves." i Story on Cont., § 26. This text is made by the author applicable to contracts for service, and in a note are cited numerous authorities — too numerous to be repeated here — to sustain it. The text proceeds to say : 'Tf a party agree to work for a year for the certain sum of $120, and before the expiration of the year abandon such agreement without the consent of the other party, he cannot recover upon a quantum ineruit." Stark v. Parker, 2 Pick. 267; 13 Am. Dec. 425, and many other authorities are cited to the same proposition. We can well see how a contract for service such as the one in question ought not and cannot fall within that class of contracts, upon the part performance of which a recovery of a quantum meruit may be allowed by the criterions above stated. In such a contract, when the rate of payment is stated by the month, the time of service fixed by it would be entirely nugatory, if not es- sential to a recovery of anything unless there has been full perform- ance, and I think v/e may well say that the time of service is, if not the whole, a very important and essential part of the consideration of the promise to pay. Such a contract is not an apportionable one, because the several months' service may and are quite likely to be of very difi'erent benefit and value. We may well say that if the defendant here understood that he was hiring the plaintiff's boy from month to month or for only one month, at the option of the plaintiff, there would have been no stipulation that he should work six months and the wages would have been less. It follows that the whole time is the consideration of the promise to pa}^, and the bene- fits and value for one month or for four months cannot be exactly apportioned. The entirety of such a contract was virtually decided by this court in Jennings v. Lyon, 39 Wis. 553 ; s. c. 20 Am. 57, where the con- tract was for one year and abandoned before the time, and suit was brought for the value of the services already rendered. The present chief justice said in his opinion: "The general rule doubtless is, that where a contract is entire, operating as a condition precedent, it is necessary for a party to show full performance on his part before he can maintain an action upon it." In that case the only exceptions to this rule in such cases which could be recognized were stated to be where full performance is prevented by the act of God or the conduct of the other party, and it was held that the plaintiff could not recover because he had not fully performed and was not pre- TERMl EFORE TERM. 549 vented from so doin^ by a sickness which he could not have antici- pated at the time of the making of the contract. The recent case of Bast V. Byrne, 51 .Wis. 531 ; s. c. 37 ^\m. 841, is not in conflict with these views or this decision. In that case the entirety of the contract was not m question, vas whether the defendant ha •fits entirety by rece ■iter he had lost di i incidentally in n "is not going V, lurner," and that i there the opinion says, : ;uestion advan- c plain- ice. It •u in Liiai case that holding such an the opinion of the court in Britton ■ad been followed in other cases; and ink incorrectly, that "there are strong suitable reasons to sustain the doctrine of the above cases." The ntirety of the coa! ' V ^tion in f: This is perhaps s t-o the ^n^- e contracts. ■ > mquire w. lonth will take this cise out ot this .ract a divisible instead of an entire month to month, and for four month -'f service is fixed at six men'' - xaCt question, it seems reaS' 'oned in connection with r the whole amount. If ' determines the time for whien ihc the mention of the six mor''';-' J the contract is not only i ^^.tit authorities in point :■ o^^^ 63, the contract wg- h. The plaintiff " •jt cause. It was plied assumpsit nor on cht 64, the contract was to •. hintiff left the defendant ;id sued for his wages a;- Mct was entire for six n- '' ■ -.p.til that time I ;r month wa :o tur the whole '.ct was to work ■onth, and plaintiff left oejcn •cover nothing either up..::i ;•■ ' is needless to pursue the q ■ liie plaintiff could not recover, ^1.-= been eiven. ?.s well as the others. general rule and make the con- one, and allow a recovery from s, as in this case, when the time ^"ithout authorities upon this at the month is only men- ■1 to determine the rate ^3 mention o^ the month 3 bound xn seless, z ... ''f he other, b In Lan • year at Ix'it'. sides, ihe ci> . Ui Uk. i.er, in the ■'.:•:.• -e of any agTt contra! : condition ;it to the ful part 01 lie other." ^ .. . ;.rinciple upo^ fule is f )e that as th€ contract is fou. considc upon the entire perforninr - '>m any • vviiolly per- formed, the cas ot arise. will not make provision for e^ which t'. ' ted to fortify them?eh Cont, ^: ide by tiie author ; - for ser" iiOic are cited numerous .v vous to 1 - re — to sustain it. The text pr if a par' Lirk for a year for th€ certain id before !...■ -. .V j/J i < ..un of the year abandon such a? ,!L the consent Of'tbt other party, he cannot recover 1 meruit." Stark V. Parker; 2 Pick. 26"/ ; 13 \m. 1 !v Other auth nrities are cited to the SS; ' bow a cc " r service such as ■ 1 canno hin that class of of which a recovery of a from t whole fits an apportioned. The tv chiti jU;-li' where a cc necessary for a pan can maintain an acLi„ to this rule in such car be where full perform, conduct of the other p. not recover because he ha rni rj.ms atx")ve stated. In ted by the month, ---'ory, if not es- 1 full perform- i..e ot service is, if not . ;t of the consideration auracL ij> liOt an apportionable one, i.e : ,;.v , :, 1 are quite likely to be / well say that if the ' 'T the plaintiff's boy L the option of the •at he should work Tt follows that the and the bene- iot be exactly . this court '0 the con- ,jid suit was '. The present ■ ss is, that -'dent, it is tils part before he !ie only exceptions 7.cd were stated to act of God or the tlie plaintiff could iied and was not pre- TERMINATION BEFORE TERM. 549 vented from so doing by a sickness which he could not have antici- pated at the time of the making of the contract. The recent case of Bast V. Byrne, 51 Wis. 531 ; s. c. 37 Am. 841, is not in conflict with these views or this decision. In that case the entirety of the contract was not in question, but conceded, and the only question was whether the defendant had not waived his right to take advan- tage of its entirety by receiving back into his employment the plain- tiff, after he had lost during the year several days by absence. It is said incidentally in the opinion in that case that holding such an opinion "is not going so far as the opinion of the court in Britton V. Turner," and that that case had been followed in other cases ; and there the opinion says, and I think incorrectly, that "there are strong equitable reasons to sustain the doctrine of the above cases." The entirety of the contract is the only question in this case. This is perhaps more than sufficient as to the general rule of serv- ice contracts, when the time of service is fixed, and it only remains to inquire whether the rate of compensation being fixed by the month will take this case out of this general rule and make the con- tract a divisible instead of an entire one, and allow a recovery from month to month, and for four months, as in this case, when the time of service is fixed at six months. Without authorities upon this exact question, it seems reasonable that the month is only men- tioned in connection with the compensation to determine the rate or the whole amount. If otherwise, and this mention of the month determines the time for which the plaintiff is bound to service, then the mention of the six months' time was useless, and that part of the contract is not only contradictory to the other, but nugatory. But authorities in point are not wanting. In Lantry v. Parks, 8 Cow. 63, the contract was to work for one year at ten dollars per month. The plaintiff worked ten months and a half, and then left without cause. It was held that he could neither recover on an im- plied assumpsit nor on the contract. In Badgley v. Heald, 4 Gilm. 64, the contract was to work six months at $8 per month. The plaintiff left the defendant's employment at the end of three months, and sued for his wages as by the month. It was held that the con- tract was entire for six months, and that the plaintiff could collect nothing until that time had expired and he had fully performed, and that $8 per month was the same as if the contract had stipulated for $48 for the whole time. In Hansell v. Erickson, 28 111. 257, the contract was to work for a certain number of months at $15 per month, and plaintiff left before that time. It was held that he could recover nothing either upon a quantum meruit or on the contract. It is needless to pursue the question further. The instruction that the plaintiff could not recover, asked by the defendant, should have been given, as well as the others, to the same effect. On the testi- mony of the plaintiff and the son he certainly cannot recover in this action, unless he show in contradiction of that testimony already 550 DUTIES OF PRINCIPAL TO AGENT. given that the son left the service of the defendant, not because he refused to pay him from month to month, but by the fault of the defendant in some other way, or by the act of God, and by such act of God as the plaintiff could not have reasonably anticipated when he entered into the contract. By the Court. — The judgment of the county court is reversed, and the cause remanded for a new trial in accordance with this opin- ion.^ YERRINGTON v. GREENE and Another. 1863. Supreme Court of Rhode Island. 7 R. I. 589. Assumpsit against the defendants, as administrators on the estate of William W. Keach, for the recovery of damages for the breach of a contract by which the said Keach agreed to employ the plaintiff, at a salary, for three years, in his business. At the trial of the case, under the general issue, at the March term of this court, 1863, before the chief justice, with a jury, it was proved by letters interchanged between the plaintiff, who then re- sided in Boston, and the intestate, who was a manufacturing jeweler, in Providence, that on the 19th day of March, i860, the former agreed to serve the intestate, and the latter agreed to employ the plaintiff, as clerk and salesman, having charge of the intestate's office, or place of sale, in New York, and as agent in his business in making occasional trips for him to Philadelphia for the term of three years from the first day of April, i860, or as soon thereafter as the plaintiff could obtain a release from his employment in Boston, at a salary of twelve hundred dollars for the first year, of thirteen hun- dred dollars for the second year, and of fifteen hundred dollars for the third year ; that on the sixteenth day of April, i860, the plaintiff entered into the service of the intestate, under this contract, and continued to serve him under it until the first day of April, 1861, when the said Keach died ; that the defendants, as administrators of said Keach, continued to employ the plaintiff, at the stipulated salary, until the sixteenth day of June, 1861, when, having discontinued the office in New York, and removed what goods v^^ere there to Provi- ^ In some jurisdictions it is held that although the contract is entire, and the agent or servant is at fault, yet if the principal has received some benefit from the service for which in equity and good conscience he ought to pay, he will be held liable for the value of the services. In such cases, however, the dam- ages occasioned by the abandonment will be deducted. See Castlin v. Weeks, 2 Ind. App. 222; Wolf V. Gerr, 43 la. 339; Parcell v. McComber, 11 Neb. 209. Compare Allen v. McKibbin, 5 Mich. 449. I •^noflipr '■'lace of ?=?.IP, t!. in said ors of K ;s state o. uh of Keach ter^ . _. ^ -Y of damages istrators, for their " '-rds ; whereupon, ' dants, the plain: a new trial, on ■ . Ames, C. J.— "ft liian from his rersonal repre:^ his estate. An ^ -v-ih the civil and .:..... ,., formance depends upon tlie con or thing, a condition is implied " arising from the peri shine '~'^ ^ •nance. er of th- contract, it is , of the continue . - books afford many illustrat ing contracts, de cerio corp^ is, in furtherance of the pi ties. The most oh--" of marriage bcf^o-e of an author c ■And delivery Oi ith of a certain slave ; I to be redelivered, b. :■ ! the death of a master < "tf^A the jur % and t; the plain' ■ m iLL\', in :• ♦^h^.t de?»i-h equally well established ai n contracts in which per- istence of a certain person •-'■■'■' -f performance dl excuse the ia:c ^ father . The c har the son to pay hin. mt in some as the ::'' - red into : ijv THE Cot ; and the cause r: ion,' l)ecause he : alt of the '.' such act .'iMted whe- •>DE iSL/ 589. on the estatp a;. ou. , . making oc' years frcn' plainliiT cc> ' Set ' tilt thiidi yeai ; entered into tl; continued to se office tn New "*/ lustice, ry, it was ' ' v.no then re- arine jeweler, iS6o, V' -r .ed^to t. :: of the inu hi his busir.:. i the term of three •'■?reafter as the •\ Boston, at a ' hun- ts for lintiff •-, and :)rii, 1861, .... .i.,.,,,trators of c; stipulated salary, iinued the to Provi- tn. be contract is entire. See Castlin v. Mi I r.nihor. ' Hipare Ai .e will TERMINATION BEFORE TERM. 55^ dence, where Keach had another place of sale, they declined longer to employ the plaintiff, or to pay him his salary, though from that time to the date of the writ he had been ready and willing to serve in said business, and had tendered his services in it to them, and had been unable to procure other employment ; that the defendants, as administrators of Keach, wound up his business by selling the goods removed from New York, with other goods of his, at Providence, and had been allowed by the court of probate, for their services as administrators, the si:m of three thousand dollars. Upon this state of facts, the chief justice instructed the jury that the death of Keach terminated this contract of service, and that no recovery of damages could be had of the defendants, as his admin- istrators, for their refusal to employ the plaintiff under it after- wards ; whereupon, the jury having returned a verdict for the de- fendants, the plaintiff, having duly excepted thereto, now moved for a new trial, on the ground of error in law in said instruction. Ames, C. J. — It is in general true that death does not absolve a man from his contracts ; but that they must be performed by his personal representatives, or their non-performance compensated out of his estate. An exception to this rule, equally well established at both the civil and common law, is that in contracts in which per- formance depends upon the continued existence of a certain person or thing, a condition is implied that the impossibility of performance arising from the perishing of the person or thing shall excuse the performance. The implication arises in spite of the unqualified character of the promissory words, because, from the nature of the contract, it is apparent that the parties contracted upon the basis of the continued existence of the particular person or chattel. The books afford many illustrations of this reasonable mode of constru- ing contracts, de certo corpora, as the civil law designation of them is, in furtherance of the presumed and probable intent of the par- ties. The most obvious cases are the death of a party to a contract of marriage before the time fixed by it for the marriage ; the death of an author or artist before the time contracted for the finishing and delivery of the book, picture, statue, or other work of art ; the death of a certain slave promised to be delivered, or of a horse prom- ised to be redelivered, before the day set for delivery or redelivery ; and the death of a master or apprentice before the expiration of the term of service limited in the indentures. The bodily disability from supervening illness, as of an artist, from blindness, to paint the pic- ture contracted for, or of a scholar to receive the instruction his father had stipulated should be received and paid for, has been held, for the like reason, to excuse each from the performance of his con- tract. Hall V. Wright, i EL, B. & E. 746; Stewart v. Loring, 5 Al- len 306. The cases in support of these, and other illustrations of the exception to the general rule, are set down in the defendants' brief, and it is unnecessary to repeat them. Both at the civil and the com- 552 DUTIES OF PRINCIPAL TO AGENT. men law it is necessary that the party who would avail himself of this excuse for non-performance of the contract should be without fault in the matter upon which he relies as an excuse. The latest and most instructive case upon this subject, so far as the discussion of the principle of decision is concerned, is that of Taylor v. Cald- well, decided by the queen's bench in May last, 8 L. T., N. S., 356. In that case it was held that the parties were discharged from a con- tract to let a music hall for four specified days for a series of con- certs, by the accidental destruction of the hall by fire before the first day arrived. The full and lucid exposition by Mr. Justice Black- burn, who delivered the opinion of the court, of the prior cases, and of the principle upon which they had been decided, leaves nothing further to be desired upon this subject. Does the case at bar fall within the general rule or within the ex- ception we have been considering? This must depend upon the na- ture of the contract, whether one requiring the continuing exist- ence of the employer, Keach, for performance on his part, or one which could, according to its spirit and meaning, be performed by the defendants, his administrators. The contract was to employ the plaintiff as clerk and agent of the intestate in his business in New York and Philadelphia ; and it seems to us undoubted that the con- tinued existence of both parties to the contract for the whole stipu- lated term was the basis upon which the contract proceeded, and if called to their attention at the time of contract, must have been con- templated as such by them. The death of the plaintiff within the three years would certainly have been a legal excuse from the fur- ther performance of his contract ; since it was an employment of confidence and skill, the duties of which, in the spirit of the contract, could be fulfilled by him alone. If this be the law in application to a covenant for ordinary service (Shep. Touch. 180), how much more in application to a contract for service of such confidence and skill as that of a clerk and agent for sale. On the other hand, this em- ployment could continue no longer than the business in which the employer was engaged and the plaintiff retained. The intestate, when living, could by the contract have required the services of the plaintiff in no other business than that in which he had engaged him, and with no other person than himself. It would seem, then, neces- sarily to follow, that when the death of the employer put a stop to this business, and left no legal right over it in the administrators, ex- cept to close it up with the least loss to the estate of their decedent, they were, by the contract, bound no longer to employ the plaintiff, any more than he to serve them. The act of God had taken away the master and principal, — the law had revoked his agency, and stopped the business to which alone his contract bound him, — and if he would serve the administrators in winding up the estate, it must be under a new contract with them, and under renewed powers granted by them. Anv other result than that this contract of service was . or that CO serve thev V t inaintain ir. ju'^t'/ ihis moti'"-^ • ■ • • ' t!ie verdi 553 the em- Appeal from -" -'mon counts ot t; le, the testator, : iacts averred in *>' the work was do ■n hi' lifetime, and c. on lii? part. TV'.c- •:' vv, York. 20 N. Y. 197. riie complaint contained the cereei intr* a if. .11 act in w ".?.h'!(V)iV(ii; : ■ /;; of ;in ; oaid. the rt lurnish ,■••1 . 1 . , iiimseli ot ■e without lauk m tne nu .' latest and most insti i .ussion of the principle . Cald- well, decided b> . - -., 356. ui that case it was rom a con- tract to let a ir • )f con- certs, by the a lie first day arrived. iicc Black- burn, who dc]. i cases, and of the prij ■ y had ' leaves nothing further f , '.^;?ct. Dr.: e gener within the cx- ceptty the plaintiff". Man he : • i-.rii;'"'. ^aken away the ' ^y, and stopped !;■ . m,— and if he ate, it must be powers granted oiuract of service was TERMINATION BEFORE TERM. 553 upon the implied condition that the employer, as well as the em- ployed, was to continue to live during- the stipulated term of employ- ment, would involve us in the strange conclusion that the administra- tors might go on with the business of their intestate, in which the plaintiff must continue with powers unrevoked by the death of his principal, or that he, with new powers from them, was bound by the contract to serve them as new masters, and in a different service, and that they were bound to grant him such powers, and employ him for the stipulated time in such service. The novelty of such a claim, and the contradiction of well-settled principles necessary to maintain it, justify the ruling of the judge who tried the cause; and this motion must be dismissed wdth costs, and judgment entered upon the verdict.^ WOLFE V. HOWES. 1859. Court of Appeals of New York. 20 N. Y. 197. Appeal from the supreme court. The complaint contained the common counts only for work, labor and services done by Nicholas Vache, the testator, for the defendants. The defendants denied the facts averred in the complaint, and set up as a separate defense that the work was done under a special contract not performed by Vache in his lifetime, and claimed damages for the breach of the contract on his part. The defendants had for nine years previous to May, 1852, been engaged as partners in carrying on the business of mak- ing glass at the Dunbarton glass-works, of which they were the pro- prietors, at Verona in the county of Oneida. The testator was in the employment of the defendants at their glass-works as a pot- maker. On the 1st of May, 1852, the defendants and testator en- tered into a contract in writing as follows : "Memorandum of an agreement made this day. Howes, Scofield & Co. [defendants], of the first part, and Nicholas Vache of the second part, witnesseth, that for and in consideration of $i to me in hand paid, the receipt whereof I do acknowledge, do agree on my part to do all the pot-room work for said parties of the first part, in a good and workmanlike manner, for one year from the date of this contract, at the price of $40 per month, $10 of which is to be paid me monthly. Dunbarton, May ist, 1852. If extra help is needed, we agree to furnish it. (Signed) Nicholas Vache." The trial was before a referee, who found the following facts: ^ Insolvency of the principal is no defense to an action brought by the agent for failure to employ him for a specified term. Lewis v. Atlas Mutual Ins. Co., 61 Mo. 534. 554 DUTIES OF PRINCIPAL TO AGENT. The plaintiff's testator entered upon the performance of the con- tract, and continued to fulfill it in all respects according to the terms thereof, in a good and workmanlike manner from the ist day of May, 1852, to the 7th day of December, following, when Vache be- came sick and unwell and so continued for a long time, and at length died. By reason of said sickness, and without fault on his part, he became and was incapable of further performance of his said con- tract. He held as matter of law, that by reason of his sickness and death, V^ache was released and discharged from the further performance of his contract, and his executor was entitled to recover a reasonable compensation for the services of his testator. That such reasonable compensation was the sum of $40 per month, for the time of the testator's service ; and after deducting certain payments made to him from time to time, there was a balance due of $159.28, for which he ordered judgment with costs. The defendants took several exceptions to the finding of the facts and the decisions of the referee on the questions of law, and particularly to the con- clusion that Vache was released and discharged from further per- formance of the contract, and that the plaintiff was entitled to re- cover a reasonable compensation for the services rendered by his testator for the defendants, and in not allowing a sufficient amount of set-O'ff. The supreme court, at general term in the fifth district, having affirmed the judgment entered on the report of the referee, the defendants appealed to this court. Allen, J. — There can be little doubt, I think, that the contract with Vache contemplated his personal services. This is evident, both from the nature of the business and the amount of compensation agreed to be paid him. It is also manifest from the evidence on both sides. The business of pot-making required skill and experience. It was an art to be acquired after much study and labor, and which Vache seemed to have accomplished. The execution of the work required his constant and personal supervision and labor. No com- mon laborer could have supplied his place, and hence the amount of his wages was largely increased beyond that of such a hand. The extra help mentioned in the contract had reference to the breaking away of the flattening, so called, and to its repair, and nothing else. The whole testimony shows this, as well as that the personal serv- ices of Vache were contracted for. The referee well found and court below well decided that such were the temis of the contract. 2. The question is then presented whether the executor of a me- chanic, who has contracted to work for a definite period, and who enters upon his labor under the contract, and continues in its faith- ful performance for a portion of the time, until prevented by sick- ness and death, and without any fault on his part, from its final completion, can recover for the work and services thus performed by his testator. : being - ■ I .lie ccp-r"'' las unci' ' nd aiv\ ,;' '• ict is entire. :ounsel, 'A'as owing to the la' cover: McMi''-'! - Reab v. Moo; Am. Dec. 36: ^^y) : Langtv ed that nul with such - .isks for in the prt Some >'f ■"''■■ doctrine • Appleby v. a, ;. _- - some others. These < ^t able cons^ <'!'iitler y. ■' WOldillg Ol llic V-' ^^ ment, b_v which the .?gh rate of wages, underr are. ndee:!. rather intimate v.aar!. >/; ■man, 2 lu.. ^-k;' "i^d ■ of the same reason- . n all contracts. That of in this, th^.t bv ''be ne- pril)C:p:. i is the \^ juhns. i.fj^ (7 i-Vm. 'tartie.'- '■* The law gi- ince. in the ; oi.Uci .should be bill avoidable sickness or '' !. that each «hou. of the rontrai^t nie and ■-•1 llie con- ■j rlie terms day of ache bc- V length '-, he :on- '■■ ■.. CL/iltfarr :■ i/ensatiop (hat such < for the timt- ful ho has corn ■^ his labor nee for . >:ne?s ar-d denth, ice : an tine: certain ' ~ • '.^_ (..f ilic decisions to the con- further per- , , ,.. >..ititled to re- ices rendered by his ' amount district, he rcpoit of ilic referee, • ik, that the contract "fl-j ; ;c: evident, both - omi>ensation '^vulence on both . and experience. ' r, and which of the wv'ik >r. No com- . '. ni'iGunt of The : dking iug- else. ai serv- ind and period, and who -1 ipk ill if-- fi^ith- ■ck- I TERMINATION BEFORE TERM. 555 The broad ground is taken on the part of the defendants' counsel, that no recovery can be had under such circumstances ; that full per- formance was a condition precedent to the right of recovery, the agreement being general and absolute in its terms, and not provid- ing for the contingency of sickness or death. It has undoubtedly been long settled as a general principle, both in England and in this as well in most other states, that where the contract is entire, nothing but the default of the defendants will excuse performance. It will be found, however, on an examination of the leading cases in our own courts, that the failure to perform was owing to the fault or negligence of the party seeking to re- cover: McMillan v. Vanderlip, 12 Johns. 165 (7 Am. Dec. 299); Reab v. Moor, 19 id. 337; Jennings v. Camp. 13 id. 94; id. 390 (7 Am. Dec. 367) ; Sickels v. Pattison, 14 Wend. 257 (28 Am. Dec. 527) ; Langtry v. Parks, 8 Cow. 63, and various other cases. It is believed that not a single case can be found where the rule is laid down with such strictness and severity as the defendants' counsel asks for in the present case. Some of the English cases do, indeed, rather intimate such a doctrine : Cutler v. Powell, 6 T. R. 320 ; Hadley v. Clarke, 8 id. 267 ; Appleby v. Dods, 8 East 300; Hulle v. Heightman, 2 id. 145, and some others. These cases are, however, capable of the same reason- able construction which the law confers upon all contracts. That of Cutler V. Powell, supra, is distinguishable in this, that by the pe- culiar wording of the contract it was converted into a wagering agreement, by which the party, in consideration of an unusually high rate of wages, undertook to insure his own life, and to render at all hazards his personal services during the voyage, before the com- pletion of which he died. The great principle upon which the adjudged cases in all the courts is based is the question, as stated in McMillan v. Vanderlip, 12 Johns. 165 (7 Am. Dec. 299), What was the real intention of the parties? The law gives a reasonable construction to all contracts. For instance, in the present case, did the parties intend that the contract should be binding upon the plaintiff's testator in case of un- avoidable sickness or death, or did they intend, and is it to be im- plied, that each should perform, as to the other, according to the terms of the contract, Deo volente? It appears that a fair and legal interpretation would answer this question in the affirmative, and that such a provision must be understood as written in the contract. Nor is this principle wanting sanction either by elementary writers or adjudged cases. "Where the performance of a condition is pre- vented by the act of God, * *' * it is excused :" Cru. Dig., tit. Condition, 41, 43 ; 3 Kent's Com. 471 ; 2 id. 509; Madeiros v. Hill, 8 Bing. 231. In Mounsey v. Drake, 10 Johns. 2"/, 29, the court say: "Performance must be shown, unless prevented by the act of God or of the law:" i Shep. Touch. 180; Gilbert on Covenants 472; Peo- 556 DUTIES OF PRINCIPAL TO AGENT, pie V. Manning, 8 Cow. 297 (18 Am. Dec. 451) ; People v. Bartlett, 3 Hill (N. Y.) 570; Carpenter v. Stevens, 12 Wend. 590; Chit. Con. 631 ; I Parsons on Cont. 524, and note; Fenton v. Clark, 11 Vt. 562; Fuller V. Brown, 1 1 Met. 440. There is good reason for the distinction which seems to obtain in all cases, between the case of a wilful or negligent violation of a contract and that where one is prevented by the act of God. In the one case the application of the rule operates as a punishment to the person wantonly guilty of the breach, and tends to preserve the contract inviolable ; while in the other its exception is calculated to protect the rights of the unfortunate and honest man who is provi- dentially and without fault on his part prevented from a full per- formance. There is another reason for relaxing the rule, which is applicable to the case we are now considering. It is well set forth in Story on Bailments, § 36, and notes, where that learned jurist, after considering the great number of cases on this subject in the various courts of England and this country, and well observing that they are not at all times in harmony, remarks that the true rule may be considered to be, "that where the contract is for personal services which none but the promisor can perform, there inevitable accident or the act of God will excuse the non-performance, and enable the party to recover upon a quant nut meruit. But where the thing to be done or work to be performed may be done by another person, then all accidents are at the risk of the promisor." In the present case the finding shows, and I have already remarked, justly, that the contract was personal, and that the executor could not have em- ployed a third person to execute the contract on the part of his tes- tator Vache. But without pressing this point further, it is sufficient to say that it was virtually decided against the defendants by this court, in the case of Jones v. Judd, 4 Comst. 411. It was there decided that when by the terms of the contract for work and labor, the full price is not to be paid until the completion of the work, and that becomes im- possible by the act of the law, the contractor is entitled to recover for the amount of his labor. In that case the work was stopped by the state officers in obedience to an act of the legislature suspending the work; and the court held that as the contractor was without fault, he was entitled to recover. The case of Mounsey v. Drake, 10 Johns. 27, was referred to and approved of as authority in favor of the position; and see Bebee v. Johnson, 19 Wend. 502 (32 Am. Dec. 518). The conclusion, then, is that where the performance of work and labor is a condition precedent to entitle the party to recover, a ful- filment must be shown; yet that where performance is prevented or rendered impossible by the sickness or death of the party, a recovery may be had for the labor actually done. This is not out of harmony J with prin'- the ru' The sary to uotice one < Tt i;- insisted tha; •f the contra' h.'r.-«; been alleged ' that the plaintilT i> ■ 'light have set uj 'i^rmance, and enti: the complaint proe. the work and lab-r cover. The defenc defense, and the i reply. The contra^ its chief conseque; damages, or to re;, entitled, though hi some of the cases a Again, it is said tha Jiing, it could be only set-oft' having been fc that, the defen ' tenable. The per month; ten u' This was upon tht for the whole time. This, ( the plaintiff was er*^ ' ■■ ' services of the te^ '.'.red by the terms .>r rn.e It is further urged that ants' damages ncc^ quit. That was a '^ that the plaintiff did 1 o' '-ii si.-Iviiess ; he-allo- defendants ; neces- id le, iff ;it CI t; ch the [ '. d qiianium meruu. rift was entitled to recover any- ' "th, and that the defendants' ■e to amount to more than nt. This obj( ' ' not ■ rate of f' re )te of lacL • think ' >t Tit iiLKji Lv lo uucrjcie. I ei II 1,11 11 1 li.ti : ; i.:i C v ',- .1 .ii T's testator, and that qui; by a less : n-ig, 6 L. /.) 570;' ms on C :^!! case::;, bei-u^ccn • VViilUi ■. ' contract and that h evented ■ one case the api ' lie opera I person wanton'. > reach, .-: contract 'm\ . other it- protect the 1 _. . . . late and dentially and withoi-i nis part t for;- ' '■■ ..pi in untr^ it was '' '-e of juiu amoamt inc stare ofTi the work : Bartleti ' hit. Con. : Vt. 562 s to obtain in ' tion of a • 1. In the !it to the , serve the calculated to x,v who is provi- from a full per- rule, which is veil set forth arned jurist, -iibject in the uitry, anci well observing that , remarks that the true rule may )ic contract is for personal services -^rform, there inevitable accident n-performance, and enable the where the thing- to be ■ another person, then In the present case ;rked, justly, that the • could not have em- ■ the part of his tes- 'hcient to say that this court, in the decided that when c full price is not that becomes im- .t;+t„/i i^j recover ropped by . huspending ■ was without Urake, 10 1 favor of Am. Dec. kision, then, ; ; . .r i: recover, a ful- :e is prevented or 1 the party, a recovery is not out of harmony TERMINATION BEFORE TERM. 557 with principle or adjudged cases, and is certainly in harmony with the rules of common honesty and strict justice. These views dispose of the main questions in the case. It is neces- sary to notice one or two of minor importance. It is insisted that if sickness were an excuse for the non-perform- ance of the contract on the part of Vache, that such excuse should have been alleged in the complaint, and this not having been done, that the plaintiff is not entitled to recover. It is true that the plaintiff might have set up the agreement and the excuse for its non-per- formance, and entitle himself to recover upon such a pleading. But the complaint proceeds upon a quantum meruit; and upon showing the work and labor of Vache, the plaintiff entitled himself to re- cover. The defendants set up the special agreement as matter of defense, and the plaintiff's excuse was properly enough matter of reply. The contract was in fact discharged by the act of God, and its chief consequence was to measure the amount of the plaintiff's damages, or to regulate the compensation to which the plaintiff was entitled, though his remedy w^as as upon a quantum meruit. So say some of the cases already cited. Again, it is said that if the plaintiff was entitled to recover any- thing, it could be only ten dollars a month, and that the defendants' set-off having been found by the referee to amount to more than that, the defendants were entitled to judgment. This objection is not tenable. The compensation was to be at the rate of forty dollars per month; ten dollars (a part) of which was to be paid monthly. This was upon the supposition that the contract was to be performed for the whole time. This, however, having been rendered impossible, the plaintiff was entitled to recover, if anything, the full value of the services of the testator, not exceeding the rate of compensation se- cured by the temis of the contract. It is further urged that the referee erred in not allowing defend- ants' damages accruing to them after Vache was sick and before he quit. That was a question of fact entirely for the referee. He found that the plaintiff did his work well and skilfully down to the time of his sickness ; he allowed and deducted the whole amount of set-off proved by defendants ; and he does not find that the defendants sus- tained any damages by reason of any defect in V^ache's work down to the time of his quitting in December, 1852. With these questions of fact we cannot interfere. The court below sanctioned the finding. I think they were fully warranted in so doing. At all events, we are not at liberty to interfere. The judgment must be affirmed. Johnson, C. J., concurred, observing that it was material that the defendants had received actual benefit from the services of the plain- tiff's testator, and that quite a different question would be presented by a case where the services actually rendered should prove value- less ; e. g., if one should be retained to compose an original literary 558 DUTIES OF PRINCIPAL TO AGENT, work, and having faithfully employed himself in preparation, should die without having completed any work of value to the employer. CoMSTOCK, J., and other judges concurred in this qualification. Judgment affirmed.^ Section 2. — Duty to Reimburse Agent. MOORE V. APPLETON. 1855. Supreme Court of Alabama. 26 Ala. 633. Trespass on the case by Claiborne G. Appleton against John Moore, "to recover damages sustained by plaintiff, growing out of certain acts performed by plaintiff, in the capacity of agent for de- fendant, in the year 1846, in dispossessing and removing one Aaron B. Quinby from a certain tract of land lying in Lawrence county, Alabama, and known as the place on which said defendant now keeps a toll-gate; which act of dispossessing and removing said Quinby was done at the special instance and request of defendant, and while plaintiff was acting as his agent." The declaration contained two counts ; the first alleging, in sub- stance these facts : That defendant in 1846, constituted and ap- pointed plaintiff his agent, generally and specially, to do and perform such acts and things as he might request plaintiff to do during the year of 1846; that afterwards, and while plaintiff was acting in the capacity of such agent for defendant, and at defendant's special in- stance and request, and as such agent, "plaintiff took possession of certain goods and chattels, to wit," etc. ; "which goods and chattels defendant then, and before plaintiff so took possession of them as such agent, stated and represented to plaintiff, were the property of said defendant, and to the possession of which defendant represented to plaintiff that he (defendant) was then entitled, which statements and representations plaintiff" then believed and acted on in so taking possession of said goods and chattels ;" that afterwards, in March, 1847, ^^^ Aaron B. Quinby instituted suit against plaintiff and de- fendant, in the circuit court of Lawrence, to recover damages sus- tained by him in consequence of the taking possession of said goods and chattels by plaintiff; that after certain proceedings were regu- larly had in said suit, a judgment was rendered against plaintiff and defendant, in favor of said Quinby's administrator, for $200 dam- ages, besides costs, which amounted to $435.58; that an execution ^Accord: Coe v. Smith, 4 Ind. 79. Compare Lakeman v. Pollard, 43 Me. 463, and Jennings v. Lyons, 39 Wis. 553. ys ieci, ted. icfendant, and a? request, and by h Sarah Ouinbv ocj ,iiid after saidpurcha- ceeded to and did tak .. ..'Uiciit was re. p-'umtiff was com' damage, etc. The defendant v.. ii demurrer was overru- to give in evidence a. also demurred to fne ;i'cient, and judgir- The ruling's c^ ■■ error. Rice, J. — ^Every man vvno c . -r to do an act which the employer appears to have a rii,..< Ize him to do undertakes to indemnify him for all such act?: ;ent.does not know to be imlawful.and as would b: ' "' '' •. . .1 , , . ii'e ])retends to have. A' icy, § 339- ;iere two person. o pcr-^r- 1y to each other, ar - .1 person to take it, ar lieve that his employer is takes it, without knov--^ • ••r tort, a promise of .'h it subsequent';-. . and the act >'{ . 174- III all such cases a pro. :ites of reason an 7y , Parsons on Con, :\ The promise thus ii as are direct and imi' nf the aqrencv. tn ot' tracts, § 176. Assumpsit Ii'- i.,-,.-iv, vi^,- .^^, ^^.^ ^^,.^ >;ually m^i jpriate rem- r.uTiE:^ .. n;ivuiii ) '\ '^Ll 1 1 11 Mit having t work o -, J., Jul r affirme.' 'lover. Section 2. — Dut^ Agent. tR: ■LETON .0 G. ■ nst John 1 by pl<: , ;!g out of the capacity oi agent for de . . I . . v;..3ing and removing one Aaror .xt of land lying in L.i\vrence count v ~ '"'"'i sai«| defendant now ig and removing said aid request of defendant counts ; the first allegmg, m sul i.t'il- in ■<^-'^, constituted and afi po,. ily, to do and perform SLlCi' cvv > '■"^ to do during the year-bf was acting in the capacity oi :dant's special in- stance and r dole possession of certain ■ ' and chattels defends: 11 of them as such agent, stat^. e property o said defendant, : t representeu to plaintiff that h statements and repress ' ^ ' in so t- ' T -ir-, ■,'-.< vs si r»n ' •'■i said goods .:-.'.. , attels by ! nftf-r . . s were regu- larly had in said plaintiff and defendant, in fs . , Lur $20o dam- ages, besides co ihat an execution ' Accord: ' Pollard. 43 Mc. DUTY TO REIMBURSE AGENT. 559 to pay $325.97 ; that in addition to this, plaintiff was obliged to pay out large sums of money in defending said suit, attorneys' fees, etc., whereby plaintiff has been greatly damaged, etc. The second count, after alleging the agency as above stated, averred that plaintiff, "while acting in the capacity of such agent for defendant, and as such agent, and at defendant's special instance and request, and by his direction, and on his behalf, purchased from one Sarah Quinby certain goods and chattels," etc. ; that afterwards, and after said purchase was made, defendant ratified the same, pro- ceeded to and did take possession of said goods and chattels ; "that Aaron B. Quinby afterwards instituted suit against plaintiff, to re- cover damages for the taking away of said goods and chattels ; that judgment was rendered in said suit, on which execution issued, and plaintiff was compelled to pay, etc. ; whereby he has sustained great damage, etc. The defendant demurred to each count in the declaration, but his demurrer was overruled, and he then pleaded not guilty, with leave to give in evidence any special matter of defense. The defendant also demurred to the plaintiff's evidence, but the court held it suf- ficient, and judgment was rendered accordingly. The rulings of the court are now assigned for error. Rice, J. — Every man who employs another to do an act which the employer appears to have a right to authorize him to do undertakes to indemnify him for all such acts as the agent does not know to be unlawful, and as would be lawful if the employer had the authority He pretends to have. Adamson v. Jarvis, 4 Bing. 66 ; Story on Agency, § 339. Where two persons are claiming title to personal property ad- versely to each other, and one of these claimants calls upon the other person to take it, and the latter has reasonable ground to be- lieve that his employer is the owner of the property, and therefore takes it, without knowing at the time that such taking is a trespass or tort, a promise of indemnity will be implied to such person, al- though it subsequently turns out that the title of employer was not good, and the act of taking a trespass. Avery v. Halsey, 14 Pick. 174. In all such cases a promise of indemnity is implied upon the plain dictates of reason and natural justice. Gower v. Emery, i8 Me. 79; Parsons on Con. 36, n. (x). The promise thus implied extends only to such losses and damages as are direct and immediate, and naturally flow from the execution of the agency. In other words, the agency must be the cause, and not merely the occasion of the losses or damages, to found a just right to reimbursement. Story on Agency, § 341 ; Story on Con- tracts, § 176. Assumpsit lies upon such implied promises. An action on the case is equally maintainable, and is said to be the more appropriate rem- 560 DUTIES OF PRINCIPAL TO AGENT. edy. Myers v. Gilbert, 18 Ala. 467; Adamson v. Jarvis, and other cases cited supra. But whether the action be assumpsit or case, the declaration is bad, on demurrer, if no breach is stated in it. i Chit- ty's PL 337. When the declaration is in case, as it is here, and shows that the losses for which the agent is seeking- indemnity from the principal, are certain damages recovered against the agent for taking property by the direction of the principal, in an action for trespass brought against the agent by the true owner of the property, the declaration is defective, if it omits to state that the taking by the agent was with- out k-nowledge on his part, at the time of the taking, that it was a trespass. The agent must, in his declaration, negative the existence of such knowledge on his part, although the onus of proving the existence of such knowledge may be on the principal ; for the rule, that the allegata and probata must correspond, is not of universal application. Carpenter v. Devon, 6 Ala. 718. Each count of this declaration is bad, for the omission of a breach, and also for failing to aver that the agent, at the time of the taking, did not know that it was a trespass or tort. An averment that the principal had notice of the losses and dam- ages sustained by the agent set forth in the declaration, and failed to pay the same, would be a good breach in such a case as this. We admit the rule, that the law will not enforce contribution nor indemnity between wrong-doers. But that rule does not apply to any case, where the act of the agent was not manifestly illegal in it- self, and was done bona fide in the execution of his agency, and with- out knowledge (either actual, or implied by law) that it was illegal. Parsons on Contracts, p. 36, note (x). That rule is applicable, whenever it appears that the act of the agent was manifestly illegal in itself. For example, if A employs B to assault C, and B thereupon does assault C, and is subjected to damages therefor, B cannot recover such damages from A, the act of B being clearly illegal in itself, the law implies that he knew it to be so, and therefore will not enforce his claim to indemnity. The rule also applies, whenever it appears that, although the act of the agent was not manifestly illegal in itself, yet, in fact, he knew it to be unlawful at the time he did it. For example, if Appleton, at the time he took the property claimed by Moore, knew that Moore had no just nor lawful right to it, and that Moore's claim was groundless and iniquitous, and that it really belonged to some other person, such knowledge on the part of Appleton at the time of the taking, would defeat any recovery by him for any loss resulting from such taking, although he took it as the agent of Moore, and by Moore's direction. Chappell v. Wysham, 4 Harris & Johns. 560. For the error of the court below in overruling the demurrer to •nts of the drcla: a.-sc rcii: 1878. SuPkEM Mercur, J. — This :■•. - ^oney had and - red came ini slructed the plai! iL. rhere being no ; Mav thev d'rec^'r'd ^ . Inimediavely C <^''l'- '~tn the sn . lents h\ pr'.trci ds. On r; the proceeds to 1 i May, and , iTs in error, • ■ f the bonds wtre 1 ^ ' lui -or wliich they li-''' ' ' others at the sa' nd held the r' • ::ne day the :ice of this >: 3.000 of tllL 'rected Cecil, Suiu ^v 1 d. and draw 'yr t'. ■ v ,;^C'il, r.Vi Hit 1." !. Stout & Tliayer, >n the 14th of May, 1 Fold at the price the defendant ;i a:""'!',' pra. :aa is bat- v hen the decl. losses for whi'1: are certain ci hy the direc ' against the ;. is defective, i out know i'?(i trespass. of such ' exis B, ■jr case, the 1 Chit- ■ the .pal, erty .../ught laration !!t was witli- hat it was a : ■ 'cnce - the for the rule, '; Ala. 7i> dan- of .: 1>c - of the ::, _: it to be unla\ the '■'-■'■ ''-'■' ■ hao Moore" s direction. (, Fn ,li,^ .^ «:•): a Liri-acn, ■ the taking, and dani- ;, and failed as this. '- ribution nor . c <.u. .^ not apply to >i: manifestly illegal in it- •H y, and with- r v/as illegal. . -. ..Lt of the . if A employs B ' ■ subjected to 1 A. the act i'.e. knew it to ••ity. >ugh the act act, he knew .•\ppleton. at ^^"it Moore aim was V lie other . :M,e of the .^s resulting from ' ^^."l0^e, and bv hns. 560. DUTY TO REIMBURSE AGENT. 561 several counts of the declaration, its judgment is reversed, and the cause remanded.^ MAITLAND v. MARTIN. 1878. Supreme Court of Pennsylvania. 86 Pa. St. 120. Mercur, J. — This action was brought by the defendant in error for money had and received for her use. The money sought to be recovered came into the hands of the plaintiffs in error under the following circumstances : In August. 1873, being brokers in the city of Philadelphia, they purchased for the defendant in error five South Carolina bonds, of the nominal value of $1,000 each. She left the bonds in their possession. They were sealed up in an envelope, her name endorsed thereon, and deposited in the safe of the plaintiffs in error in the "Fidelity." They thus remained until ]\Iay, 1875, when she instructed the plaintiffs in error to sell them, at thirty-three per cent. There being no market in Philadelphia for them, on the 12th of May they directed their correspondents, Cecil, Stout & Thayer, brokers in New York, to sell them. By dispatch, on the 14th of May, they' advised the plaintiffs in error that they had sold at the price named. Immediately thereafter the plaintiffs notified the defendant of the sale. On the same day the plaintiffs forwarded the bonds to their correspondents by express, and requested a draft to be remitted for net proceeds. On receipt of the bonds, Cecil, Stout & Thayer re- mitted the proceeds to plaintiffs in error on the 15th of May. On the 17th of Alay, and while the proceeds remained in the hands of the plaintiffs in error, they were notified by Cecil, Stout & Thayer that three of the bonds were not fundable, and not a good delivery at the price for which they had sold them ; and, therefore, they had pur- chased others at the same price to supply the place of those not fund- able, and held the plaintiffs in error for the sum thus advanced. On the same day the plaintiffs in error advised the defendant of the substance of this notice, and further requested her to consider the sale of 3,000 of the bonds reported by them sold, as canceled. They also directed Cecil, Stout & Thayer to return the three bonds not accepted, and draw on them for the sum paid. Thereupon Cecil, ^ "Where an agent, acting faithfully, without fault, in the proper service of his principal, is subjected to expense, he ought to be reimbursed. If sued on a contract made in the course of his agency pursuant to his authority, though the suit be without cause, and he eventually succeeds, the law implies that the principal will indemnify him, and refund the expense. For this he can maintain an action of indebitatus assumpsit; and the proof of these facts will be sufficient to warrant the jury to find the promise." Swift, Ch. J., in Stocking V. Sage, i Conn. 518, 521. 36 — Reinhard Cases. 562 DUTIES OF PRINCIPAL TO AGENT. Stout & Thayer returned the bonds, and the plaintiffs in error paid them the sum which they had advanced. The plaintiffs in error oft'ered to return the three bonds to the defendant, and account for the proceeds of the two others; but she denies their right to hold her responsible for the money thus paid by them, and seeks to recover the whole sum agreed to be paid for the five iDonds. It appears, by the evidence, that about the ist of June, 1874, the treasurer of the state of South Carolina issued a notice that certain bonds of that state had been declared null and void by the legisla- ture, and would not be recognized. Thereupon, June 2d, 1874, the New York Stock Exchange made an order that the bonds embraced in said notice should not pass, as a good delivery, on a sale of regu- lar "South Carolina bonds," after that date. Three of these bonds appear to have been repudiated by the legislature, and at the time of the sale, in May, 1875, were not fundable, and as a consequence were almost worthless. Cecil, Stout & Thayer professed to sell "fundable bonds" only. They supposed all of the five to be of that class. The purchaser had a right to suppose he was buying such. Discovering that three of them were not of that kind, he refused to accept them. Cecil, Stout & Thayer thereupon replaced them with such bonds as filled the contract. If these facts be proved, they undoubtedly had a valid claim against the persons in whose behalf they agreed to make the sale. At the time the plaintiffs in error directed them to make the sale, they did not disclose the name of their principal ; yet this in no manner changed the legal rights and liabilities between her and them. The specific bonds were her prop- erty. The plaintiff's were her agents to effect the sale. It was to be made for her benefit. The plaintiffs were bound to due care, pru- dence and diligence in the execution of the powers committed to them. These they appear to have exercised. They kept their prin- cipal informed of their action. The defendant is not shown to have sustained any damage by reason of any information being withheld from her. These bonds had depreciated while owned by her. If the plaintiffs in error, while acting as her agents in effecting the sale, without any fault on their part, became liable, she, and not they, must bear the loss. The object to be effected was the sale of the bonds. The plaintiffs in error, as well as Cecil, Stout & Thayer, were acting as agents to reach that end. An agreement to sell fundable bonds, and a pay- ment by the purchaser to one agent, and his transmission to another agent, did not necessarily complete the transaction. •It required a delivery, or a readiness to deliver the bonds, of the kind sold, according to the contract. Anything less than that left the transaction incomplete, unless further fulfilment was waived. In fully perfecting a sale the plaintiffs in error were strictly in the line of their duty. We discover nothing affecting their good If, then, without fault ■ :.anage- .r .1. - i-nsiness of the de- - *^'^05e be borne by her .2:e, D'Arcy v. Ly ■ tiffs m em '■I die p- 1 .; and reii se them, •vs consent m.-, >y necessarily ac as stated, tlv ^ ;. If so jus' rity of the p.. and their a.^ ;h by fai: have be-'.-.... . . ioes not bar tht dant to make th ns of the charge '^signmcr.' led. nt revev novo awarded.^ >ii 3. — Employer's Liability. \T?w"r:TJ. V "rof: ; ^ter "R^^ SupPEME Jvv: till actiwii (J I i\c ation that he ag .-nt of an engiiic.r . d cars runnin^r ^'-n r, and enter duties as et ,. at Newton, by their ' '-Managed and n" le short swr lat the engine ana M'Hxt & Thayer n \hi.\n the sum v/hk', plaintiffs ir. ■d to re ... .. ..Jant, and ace ... proce'^'l ucnies their right ier respe: by them, and seeks '.er the wnu' the five bonds. It appears, 1- ■ce, that treasurer of tb :-.th Car- bonds of that . . ;u declared ; ture, and woul !:>gnized. T\ New York St<; : made an or in said not' -s, as a gooi lar "Souti after that appear to ii.ix ' by the of the sale, in n':>t fn-" were almost \ er liad a right i;o si .:..,.._ ...1 ree of tl-'-"' ■.■-,•■,•,■■ .-.-, a. Cecil , Stout error paid The pia erty. made dence them. .. cipal info; sustained any from her. T the plaintiffs sale, without ; they, must bear The object to L'. in error, as well a.- rcach that end. .-'■■ ment by the purcha agent, did not necessar. -It required a delivery, kind sold, according to tli the transaction incomplete, In fully perfecting a sa ne of their duty e bonds to the . others; but she money thus paid ~ • t". be paid for , 1874, the ..hat certain by the legisla- e 2d, 1874, the onds embraced a sale of regu- ( of these bpnds iud at the time a consequence sed to sell -; be of that appose he was buying such. t of that ki!^d, he refused to .reupon replaced them with ^( these facts be proved, they ■liX the persons in whose behalf le sak. Ai the time the plaintiffs in error the sale, they c'id not disclose the name of red the legal rights and . - nc bonds were her prop- ^ents to effect the sale. It was to be .,,r~,fr_ ., hound to due cafe, pru- e powers committed to ''^hey kept their prin- not shown to have iiion being withheld "\vned by her. If as het :i effecting the 1-^ iw iA'.o Qiir' not i nt^ piaiiuiffs . Mig as agents to ^_ bonds, and a pay- . amission to another n. T the bonds, of the .: less than that left uaent was waived. I error were strictly .(lung affecting their g employer's liability. 563 faith. If, then, without fault on their part in the honest manage- ment of the business of the defendant, they incurred damages, those damages must be borne by her and not by them. Stocking v. Sage, I Conn. 519; D'Arcy v. Lyle, 5 Binn. 441 ; Whart. on Agents, § 316. If the plaintiffs in error in good faith carried out the contract made with the purchaser, they did not thereby adopt the loss as their own and relieve the defendant from her legal obligation to re- imburse them. Although they took back the bonds, without the express consent and authority of the defendant, yet they did not thereby necessarily accept them as their own. If the facts are found to be as stated, the purchaser was justified in refusing to accept the bonds. If so justified, it was clearly within the general scope and authority of the plaintiffs in error, as her agents, to fulfil the con- tract, and their acts, in contemplation of law, became her acts. Al- though by failing to disclose their principal, the plaintiffs in error may have become personally liable to Cecil, Stout & Thayer, yet that does not bar the right of the plaintiffs in error to require the defendant to make their loss good. It therefore follows that many portions of the charge were too unfavorable to the plaintiffs in error, and the assignments are substantially sustained. Judgment reversed and a venire facias de novo awarded.^ Section 3. — Employer's Liability. (a) FELLOW-SERVANT RULE. FARWELL V. BOSTON & WORCESTER RAILROAD CORPORATION. 1842. Supreme Judicial Court of Massachusetts. 4 Met. 49. In an action of trespass upon the case, the plaintiff alleged in his declaration that he agreed with the defendants to serve them in the employment of an engineer in the management and care of their en- gines and cars running on their railroad between Boston and Worcester, and entered on said employment, and continued to per- form his duties as engineer till October 30th, 1837, when the de- fendants, at Newton, by their servants, so carelessly, negligently and unskilfully managed and used, and put and placed the iron match rail, called the short switch, across the rail or track of their said railroad, that the engine and cars, upon which the plaintiff was en- ^ In Mohr v. ]Miesen, 47 ^linn. 228, it was held that an agent cannot recover from his principal for advances made in illegal transactions. 564 DUTIES OF PRINCIPAL TO AGENT. gaged and employed in the discharge of his said duties of engitieer, were thrown from the track of said railroad, and the plaintiff, by means thereof, was thrown with great violence upon the ground; by means of which one of the wheels of one of said cars passed over the right hand of the plaintiff, crushing and destroying the same. The case was submitted to the court on the following facts agreed by the parties : "The plaintiff was employed by the defendants, in 1835, as an engineer, and went at first with the merchandise cars, and afterwards with the passenger cars, and so continued till Oc- tober 30, 1837, at the wages of two dollars per day; that being the usual wages paid to engine-men, which are higher than the wages paid to a machinist, in which capacity the plaintiff formerly was em- ployed. "On the 30th of October, 1837, the plaintiff", then being in the employment of the defendants, as such engineman, and running the passenger train, ran his engine off at a switch on the road, which had been left in a wrong condition, (as alleged by the plaintiff, and, for the purpose of this trial, admitted by the defendants,) by one Whitcomb, another servant of the defendants, who had been long in their employment, as a switch-man or tender, and had the care of switches on the road, and was a careful and trustworthy servant, in his general character, and as such servant was well known to the plaintiff. By which running off, the plaintiff sustained the in- jury complained of in his declaration. "The said Farwell (the plaintiff) and Whitcomb were both ap- pointed by the superintendent of the road, who was in the habit of passing over the same very frequently in the cars, and often rode on the engine. "If the court shall be of opinion that, as matter of law, the de- fendants are not liable to the plaintiff, he being a servant of the corporation, and in their employment, for the injury he may have received from the negligence of said Whitcomb, another servant of the corporation, and in their employment, then the plaintiff shall become nonsuit ; but if the court shall be of opinion, as matter of law, that the defendants may be liable in this case, then the case shall be submitted to a jury upon the facts which may be proved in the case ; the defendants alleging negligence on the part of the plaintiff." Shaw, C. J. — This is an action of new impression in our courts, and involves a principle of great importance. It presents a case, where two persons are in the service and employment of one com- pany, whose business it is to construct and maintain a railroad, and to employ their trains of cars to carry persons and merchandise for hire. They are appointed and employed by the same company to perform separate duties and services, all tending to the accom- plishment of one and the same purpose — that of the safe and rapid transmission of the trains ; and they are paid for their respective .''^5 labor and tion is, Hi ■ 1 !i:i ; ,, . ij emplovfci. by means of \.h.. the pa: is 3n CiiHt ilO 1 down Iv does any damage to a w^^ -.ftrltct But the «'• in the master's ms owri misbe'- East io6. This ■. cf social duty, tli;' nffsirs, whether b_ r them as t r thereby su- ervant, in th ,. .. ri.ope of his aui so far the act of ckUiter. But this in the relation of si rion, ip such . -s on the ca icat superior is . . yi policy and secuii'. , But this does not apply i-Tainst his own er" ■ in the course o "■. peril as the em ' r^nrf bear' may them, and wnicii, in nus regulated, same view seen: • plaintiff in th- ould not be pla<. . . Lhe ques- so r, .. It n de- he does n .-. ;. cT for it. J ent, and acting 1, iu contemplation o- ;,uv, latter shall be answerable i to each other lo privity; and LOi t. The form is nage. The maxim ifom general considera- ant lii the C' and must \y. of contract. As ■' ^t^ilicable t*"- ^^^'■■ act of V "!t WOu:'i 'o be TV m 11: c sons a gat;ea and employe. .arge i;t •■.:;- or, were thrown from said raj ..■ .r . i^ by means thereof, wa- i great - ground; by means of which heels of '■■ , .0,1 ,s „•,.,- the right hand of ti ushing -.'A The case was su' court CM ■'0 '•'■ ■ -'i:;''-^-" by the parties : "1 vas emp' defendants, in 1835, as an en- at first • iidise cars, and afterwards ?;e- cm-- . .:d till Oc- tober 30, 1837. that being the usual wage- ^ iian the wages paid to a r riacity tlu inerly was em- ployed. "On the -^oth 01 ■■,'"- ' i ■) : ' L; . ' 1 being in the i 1 1 1 i t: fendants a corporation, aii received from ■-, the corporation, e.. become nonsuit; b. law, that the defo. shall be submitted ii! the case ; the dt ui running the >ad, which had .1 by iiie plaintiff, and, iC defenOc>nts,) by one >«ho had been long >.;...;. and had the care areful and trustworthy servant, h servant was well known to , tlie plaintiff sustained the in- V hitcomb were both ap- ;id, who was in the habit ■II fac cars, and often rode ' cer of lau . w.^ ._.^- or a servant of the V he may have ■her servant of plaintiff shall ■ . as matter of then the case .''V be proved ;)art of the pany, whose busin to employ thfeir tv for hire. They ari to perform separati. . plishment of one and transmission ('' *' .••.scats a case, jt of one com- uiin a railroad, and ■ and merchandise the same company iing to the accom- the safe and rapid employer's liability. 565 services according to the nature of their respective duties, and the labor and skill required for their proper performance. The ques- tion is, whether, for damages sustained by one of the persons so employed, by means of the carelessness and negligence of another, the party injured has a remedy against the common employer. It is an argument against such an action, though certainly not a de- cisive one, that no such action has before been maintained. It is laid down by Blackstone, that if a servant, by his negligence, does any damage to a stranger, the master shall be answerable for his neglect. But the damage must be done while he is actually em- ployed in the master's service ; otherwise, the servant shall answer for his own misbehavior, i Bl. Com. 431. M'AIanus v. Crickett, I East 106. This rule is obviously founded on the great principle of social duty, that every man, in the management of his own affairs, whether by himself or by his agents or servants, shall so conduct them as not to injure another; and if he does not, and another thereby sustains damage, he shall answer for it. If done by a servant, in the course of his employment, and acting within the scope of his authority, it is considered, in contemplation of law, so far the act of the master, that the latter shall be answerable ciz'ilifer. But this presupposes that the parties stand to each other in the relation of strangers, between whom there is no privity ; and the action, in such case, is an action sounding in tort. The form is trespass on the case, for the consequential damage. The maxim respondeat superior is adopted in that case, from general considera- tion of policy and security. But this does not apply to the case of a servant bringing his ac- tion against his own employer to recover damages for an injury arising in the course of that employment, where all such risks and peril as the employer and the servant respectively intend to assume and bear' may be regulated by the express or implied contract be- tween them, and which, in contemplation of law, must be presumed to be thus regulated. The same view seems to have been taken by the learned counsel for the plaintiff in the argument; and it was conceded, that the claim could not be placed on the principle indicated by the maxim respondeat superior, which binds the master to indemnify a stranger for the damage caused by the careless, negligent or unskilful act of his servant in the conduct of his affairs. The claim, therefore, is placed, and must be maintained, if maintained at all, on the ground of contract. As there is no express contract between the parties, applicable to this point, it is placed on the footing of an im- plied contract of indemnity, arising out of the relation of master and servant. It would be an implied promise, arising from the duty of the master to be responsible to each person employed by him, in the conduct of every branch of business, where two or more per- sons are employed, to pay for all damage occasioned by the negli- 566 DUTIES OF PRINCIPAL TO AGENT. gence of every other person employed in the same service. If such a duty were estabHshed by law — like that of a common carrier, to stand to all losses of goods not caused by the act of God or of a public enemy — or that of an innkeeper, to be responsible, in like manner for the baggage of his guests ; it would be a rule of frequent and familiar occurrence, and its existence and application, with all its qualifications and restrictions, would be settled by judicial prec- edents. But we are of opinion that no such rule has been estab- lished, and the authorities, as far as they go, are opposed to the principle. Priestley v. Fowler, 3 Mees. & Welsh, i ; Murray v. South Carolina Railroad Company, i McMullan 385. The general rule, resulting from considerations as well of justice as of policy, is, that he who engages in the employment of another for the performance of specified duties and services, for compensa- tion, takes upon himself the natural and ordinary risks and perils incident to the performance of such services, and in legal presump- tion, the compensation is adjusted accordingly. And we are not aware of any principle which should except the perils arising from the carelessness and negligence of those who are in the same em- ployment. These are perils which the servant is as likely to know, and against which he can as effectually guard, as the master. They are perils incident to the service, and which can be as distinctly fore- seen and provided for in the rate of compensation as any others. To say that the master shall be responsible because the damage is caused by his agents, is assuming the very point which remains to be proved. They are his agents to some extent, and for some pur- pose; but whether he is responsible, in a particular case, for their negligence, is not decided by the single fact that they are, for some purposes, his agents. It seems to be now settled, whatever might have been thought formerly, that underwriters cannot excuse them- selves from payment of a loss by one of the perils insured against, on the ground that the loss was caused by the negligence or un- skilfulness of the officers or crew of the vessel, in the performance of their various duties as navigators, although employed and paid by the owners, and, in the navigation of the vessel, their agents. Copeland v. New England Marine Ins. Co., 2 Met. 440-443, and cases there cited. I am aware that the maritime law has its own rules and analogies, and that we cannot always safely rely upon them in applying them to other branches of law. But the rule in question seems to be a good authority for the point, that persons are not to be responsible, in all cases, for the negligence of those em- ployed by them. If we look from considerations of justice to those of policy, they will strongly lead to the same conclusion. In considering the rights and obligations arising out of particular relations, it is competent for courts of justice to regard considerations of policy and general convenience, and to draw from them such rules as will, in their .\] anplir^Tion best prrnnote the saf ■ ' ' " -d i' • ^" tion of wnat is bt 'is concerneci, under ' n and familiar cases >d to actual fault - le for all losses ' S': ' by the aci oi L; them ag'air!':*- ^'' )ss, it V of embt : of the carrier, although it ' i"he risk is therefore thi' the form of payment {• which he thus assumes. the attendance of hone.vi » uiaies ana ;• .- property <-■ . id yet it would ' -" these cts. The liability of pas; ins. They are h';' ' d ckill, on the .. they ai y of'tlir r. it. Story on : .. ^ are of opinir- ise in question. ■ -'f one coinniOii • ' Is much on thu m his a' may requr tnore efft •' jn cmpi ' vher. ;-,. ninw ar, ;n that DUTJ) public cn€niyT-or r. i;i.r.ner for the I.:*' i(..-5 vj^ualiii'." edeiits. 1 lisbed, and t; principle. ?'-• South Ca; The i^-e: s in the . .. . ....L.iies pt-i' e natural ai. :J1 be respoi; hig the ^ s to S(»f elves frO' of the rules and an? f such :arrier, or of a ui like ■ equent , ith ^till i prec- estab- 'pposed to the .1 ; Murray v. well of justice :ent of another for compensa- and perils 1 presump- ve are not vising from same em- ■ to know, ->ter. They mctly fore- .. any others. the damage is v'.hich remains to and for some pur- ular case, for their they are, for some iever might . L. ,. -.icuse them- perils insured against, - -"^ligence or un- 'e performance ' old ,/uS. ^'^443> and ■las its own rely upon .1 the rule in nat persons are ■f those em- nd to draN\ - -y, they . rights ■us, it is competent i policy and generp.l rules as will, ii employer's liability, 567 practical application, best promote the safety and security of all parties concerned. This is, in truth, the basis on which implied promises are raised, being duties legally inferred from a considera- tion of what is best adapted to promote the benefit of all persons concerned, under given circumstances. To take the well-known and familiar cases already cited; a common carrier, without regard to actual fault or neglect in himself or his servants, is made liable for all losses of goods confided to him for carriage, except those caused by the act of God or of a public enemy, because he can best guard them against all minor dangers, and because, in case of ac- tual loss, it would be extremely difiicult for the owner to adduce proof of embezzlement or other actual fault or neglect on the part of the carrier, although it may have been the real cause of the loss. The risk is therefore thrown upon the carrier, and he receives, in the form of payment for the carriage, a premium for the risk which he thus assumes. So of an innkeeper; he can best secure the attendance of honest and faithful servants, and guard his house against thieves. Whereas, if he were responsible only upon proof of actual negligence, he might connive at the presence of dishonest inmates and retainers, and even participate in the embezzlement of the property of the guests, during the hours of their necessary sleep, and yet it would be difficult, and often impossible, to prove these facts. The liability of passenger carriers is found on similar considera- tions. They are held to the strictest responsibility for care, vigilance and skill, on the part of themselves and all persons employed by them, and they are paid accordingly. The rule is founded on the expediency of throwing the risk upon those who can best guard against it. Story on Bailments, 590, and seq. We are of opinion that these considerations apply strongly to the case in question. Where several persons are employed in the con- duct of one common enterprise or undertaking, and the safety of each depends much on the care and skill with which each other shall perform his appropriate duty, each is an observer of the conduct of the others, can give notice of any misconduct, incapacity or neglect of duty, and leave the service, if the common employer will not take such precautions, and employ such agents as the safety of the whole party may require. By these means, the safety of each will be much more effectually secured, than could be done by a resort to the common employer for indemnity in case of loss by the negligence of each other. Regarding it in this light, it is the ordinary case of one sustaining an injury in the course of his own employment, in which he must bear the loss himself, or seek his remedy, if he have any, against the actual wrong-doer. In applying these principles to the present case, it appears that the plaintiff was employed by the defendants as an engineer, at the rate of wages usually paid in that employment, being a higher rate than 568 DUTIES OF PRINCIPAL TO AGENT. the plaintiff had before received as a machinist. It was a voluntary undertaking on his part, with a full knowledge of the risks incident to the employment and the loss was sustained by means of an ordi- nary casualty, caused by the negligence of another servant of the company. Under these circumstances, the loss must be deemed to be the result of a pure accident, like those to which all men, in all employments, and at all times, are more or less exposed ; and like similar losses from accidental causes, it must rest where it first fell, unless the plaintiff has a remedy against the person actually in default ; of which we give no opinion. It was strongly pressed in the argument, that although this might be so, where two or more servants are employed in the same de- partment of duty, where each can exert some influence over the con- duct of the other, and thus to some extent provide for his own se- curity ; yet that it could not apply where two or more are employed in different departments of duty, at a distance from each other, and where one can in no degree control or influence the conduct of another. But we think this is founded upon a supposed distinction, on which it would be extremely difficult to establish a practical rule. When the object to be accomplished is one and the same, when the employers are the same, and the several persons employed derive their authority and their compensation from the same source, it would be extremely difficult to distinguish, what constitutes one de- partment and what a distinct department of duty. It would vary with the circumstances of every case. If it were made to depend upon the nearness or distance of the persons from each other, the question would immediately arise, how near or how distant must they be, to be in the same or different departments. In a black- smith's shop, persons working in the same building, at different fires, may be quite independent of each other, though only a few feet distant. In a ropewalk, several may be at work on the same piece of cordage, at the same time, at many hundred feet distant from each other, and beyond the reach of sight and voice, and yet acting together. Besides, it appears to us, that the argument rests upon an as- sumed principle of responsibility which does not exist. The mas- ter, in the case supposed, is not exempt from liability, because the servant has better means of providing for his safety, when he is employed in immediate connection with those from whose negligence he might suffer ; but because the implied contract of the master does not extend to indemnify the servant against the negligence of any one but himself; and he is not liable in tort, as for the negligence of his servant, because the person suffering does not stand towards him in the relation of a stranger, but is one whose rights are regu- lated by contract express or implied. The exemption of the master, therefore, from liability for the negligence of a fellow servant, does not depend exclusively upon the consideration, that the servant has A case may be ! ■se the i' ' I was iC' 'Onditiou luy tic j '. •,.it the engine:' r.v' , rs, paying toll to ...ition from passei to suffer a loss fr^ ■ ' "cd to the o, -: the railroa tiicL as between ii engines and cars, .'; the engineer woui iirm there could be . . .. er would have n; : conduct of leader. The respo - r - ^'~ - his servant, in thr ,, is founded on anot n- tract, and stand? ■ ts '!' policy, we- ir whose see olicy and general ex] j far as to warrant l nployer for an indei ' nature and t:' ■ not ronduci . )n, we would a?- application of i •'Ic. It may be ■ tijiig in the present . actual negligence would bt T<. ' i;.^ ;.i.e i '-nntifl: had before ■ voluntary ,,jm'>" ' .'■ ino- on his p.-^i ■' - iM,~I(]f'nt to -lymenf ; naiy ^,.i::if.cilty, caus' '; I lie company. Under t> icd to be the result of n, in all employment • and like similar loss It: It first fell, unless the ri.ially in default ; of ion. It was sti. . . J. - argil tiieii ...1. i'.A^ might be so, where two o ■ints are the same de- partmer" ;ii exert si over the con- duct, of ■ me exti. r his own se- ci:: • ertiployed Ml ither, and ; or ini ■■'.t conduct of d tipon ' j;i distinction, lit to estabhsh a practical rule. . .,,:.] tl>.. ...,,,.^ when the ed derive >ource, it -s one de- luent of duty. it would vary V.l ■ smun ;- fires, ni feet distant, i piece of cordnf. from each ' acting too^et:. B< sides, It appears t. Slimed pr.inciple '■' '-':-•' ter, in the c^se servant has bet- emj'loved in im: t suffer -nd to i) one but himself; a.y of It-- V, va.nt, becai: lii. elation of a latcLi ii\ .JM tract expre->:- ■ . n.i^ . therefore, from liability for the r not depend exclusively upon the -. If it were made to depend c of the persons from each other, the ^ri=e, how near or how distant must Afferent dt'partments. In a black- "n the same building-, at different of each other, though only a few ■ i, on the same ■ <\ feet distant voice, and yet rests upon an as- /-vUt. The mas- > , because the liCn he is icgligence . iSter does nny .-■f consiQr.u. s rights are regi: ion of the master ;low servant, do('- tnat the servant ha employer's liability. 569 better means to provide for his own safety, but upon other grounds. Hence the separation of the employment into different departments cannot create that liabihty, when it does not arise from express or imphed contract, or from a responsibiHty created by law to third persons, and strangers, for the negligence of a servant. A case may be put for the purpose of illustrating this distinction. Suppose the road had been owned by one set of proprietors whose duty it was to keep it in repair and have it at all times ready and in fit condition for the running of engines and cars, taking a toll, and that the engines and cars were ow^ned by another set of proprie- tors, paying toll to the proprietors of the road, and receiving compen- sation from passengers for their carriage; and suppose the engineer to suffer a loss from the negligence of the switch-tender. We are inclined to the opinion that the engineer might have a remedy against the railroad corporation ; and if so, it must be on the ground, that as between the engineer employed by the proprietors of the engines and cars, and the switch-tender employed by the corporation, the engineer would be a stranger, between whom and the corpora- tion there could be no privity of contract ; and not because the engi- neer w^ould have no means of controlling the conduct of the switch- tender. The responsibility which one is under for the negligence of his servant, in the conduct of his business, towards third persons, is founded on another and distinct principle from that of implied con- tract, and stands on its own reasons of policy. The same reasons of policy, we think, limit this responsibility to the case of strangers, for whose security alone it is established. Like considerations of policy and general expediency forbid the extension of the principle, so far as to warrant a servant in maintaining an action against his employer for an indemnity which we think was not contemplated in the nature and terms of the employment, and which, if established, would not conduce to the general good. In coming to the conclusion that the plaintiff, in the present case, is not entitled to recover, considering it as in some measure a nice question, we would add a caution against any hasty conclusion as to the application of this rule to a case not fully within the same principle. It may be varied and modified by circumstances not ap- pearing in the present case, in which it appears, that no wilful wrong or actual negligence was imputed to the corporation, and where suitable means w^ere furnished and suitable persons employed to ac- complish the object in view. We are far from intending to say that there are no implied warranties and undertakings arising out of the relation of master and servant. Whether, for instance, the em- ployer would be responsible to an engineer for a loss arising from a defective or ill-constructed steam engine : Whether this would de- pend upon an implied warranty of its goodness and sufficiency, or upon the fact of wilful misconduct, or gross negligence on the part of the employer, if a natural person, or of the superintendent or im- 570 DUTIES OF PRINCIPAL TO AGENT. mediate representative and managing agent, in case of an incorpo- rated company — are questions on which we give no opinion. In the present case, the claim of the plaintiff is not put on the ground that the defendants did not furnish a sufficient engine, a proper railroad track, a well-constructed switch, and a person of suitable skill and experience to attend it ; the gravamen of the complaint is, that that person was chargeable with negligence in not changing the switch, in the particular instance, by means of which the accident occurred, by which the plaintiff sustained a severe loss. It ought, perhaps, to be stated, in justice to the person to whom this negligence is imputed, that the fact is strenuously denied by the defendants, and has not been tried by the jury. By consent of the parties, this fact was assumed without trial, in order to take the opinion of the whole court upon the question of law, whether, if such was the fact, the defendants, under the circumstances, were liable. Upon this ques- tion, supposing the accident to have occurred, and the loss to have been caused, by the negligence of the person employed to attend to and change the switch, in his not doing so in the particular case, the court are of opinion that it is a loss for which the defendants are not liable, and that the action cannot be maintained. Plaintiff nonsuit.^ VALTEZ V. OHIO and MISSISSIPPI RAILWAY COMPANY. 1877. Supreme Court of Illinois. 85 111. 500. Mr. Justice Breese delivered the opinion of the court. This was case, in the St. Clair circuit court, by Joseph Valtez, plaintiff, and against the Ohio and Mississippi Railway Company, defendant, to recover damages for a personal injury caused by the negligence of defendant's servants. The questions came before us on a demurrer to the evidence, which had been adjudged in favor of the defendant, and a judgment rendered against plaintiff for the costs, to reverse which he appeals, and makes the point that the demurrer was not properly framed, and should have been overruled on the ground, and for the reason, that it admitted the evidence, instead of the facts which the evidence established. We do not appreciate the force of this objection as now made, as the record shows the plaintiff voluntarily, without any order of the court, joined in the demurrer, thus distinguishing the case from that of Dormandy v. The State Bank, 2 Scam. 236. It is the office of a demurrer to the evidence, to withdraw the issues from the jury, ^ See article, "American Law Concerning Employer's Liability," in 24 Am. Law Rev. 175. 1 order oi tiic iiat are ■ j.i-.'.jitiff was in ilie ci •r with other • " I in East St was in a shv .. ■ ed ; that the per 'his car, whi/ ' 1 on tlie "d; not in use were ' :ng and less dai: ployed, he, by th<, ._, . -ompany, enr. .-;.., ed. This h the que one sfcivoiiji , :3 done by a the master has seiec there is ''■• ■''- - ' - switch '- m:- iter, riamciii k* jompany, the ha ts of his - ice into many men, and iiad ipt;-; ut III . ir' 'Vi -.-^ ,' ;;■ ii the usi. ■.fior, anse>. xi ■-, a this court has held /\amx. vj ... > cind occu that one is nee the cla; trat K, a wc, 'ind tha ill Liic parii. by which t? to be state coi; -rson Lo -h- i1ep.i> ; :ies, this fact t tA' La:: . of the whole >vhether. the fact, th. . m this < los? to OSS for . lendant 'nr no r ■c:;tcc:tppt p \tt \'^^ PAW «5 il- costs, t- .-^"^ ■|T1 f • vVe do nt tlU: ' ' co: of opeals, and the coi; ;t, by Joov._,Mi V altez. 'i Railway Compan}- ;iy caused by the '"sme before u- in favor -.1 for the 'e point that the '- i^een overruled the evidence, as now made, as tile oiiice oi ■:m the iu"v. » EMPLOYER S LIABILITY. 5/1 in order that the court may pronounce the law upon the facts ad- mitted by the demurrer. The defendant, in effect, says to the plaintiff*, by demurring to the evidence, that all the facts such evi- dence tends to prove are admitted to exist, but upon those facts you are not entitled to recover, and on that we demand the judg- ment of the court. What are the material facts admitted by the demurrer? That plaintiff was in the employment and service of the defendant, to- gether with other servants and employees, in repairing cars, at its depot in East St. Louis ; that the usual place of making such re- pairs was in a shed, into which one or more tracks of the company entered ; that the person in charge of the repair gang, one Rein, directed this car, which required new springs to be attached, should be placed on the "dead track," so called for the reason that cars not in use were placed there, and where there would be less switch- ing and less danger than in the shed ; that while he was so em- ployed, he, by the negligence and carelessness of another servant of the company, employed on the same track at this depot, was badly injured. This is the substance of the proof, and the question, so often decided by this court, of respondeat superior, arises. It is unnecessary to cite the numerous cases wherein this court has held that one servant cannot recover from the common master, for in- juries done by a fellow servant in the same line of employment, if the master has selected trusty and competent servants, and of this there is no dispute. The accident was caused by the driver of a switch engine, there employed, mistaking the signal of the yard master. Plaintiff knew, when he entered into the employment of the company, the hazard attending his vocation, and, for the emolu- ments of his position, assumed the usual and ordinary hazards of the service into which he entered. He knew the company employed many men, and had a right to believe some of them might be care- less and negligent in the performance of a duty, and this hazard he voluntarily accepted. Those who are engaged in the service of the same master, in carrj'ing on and conducting the same general busi- ness, in which the usual instrumentalities are used, may justly be con- sidered fellow servants. A proper test of the existence of this rela- tion may be to inquire whether the negligence of the one is likely to inflict injury on the other, as claimed by appellee in its argument. This is not unlike the case of the Chicago and Alton Railroad Com- pany V. Murphy, Admx., 53 111. 336. It was there said, where the ordinary duties and occupations of the servants of a common master are such that one is necessarily exposed to hazard by the careless- ness of another, they must be supposed to have voluntarily taken the risks of such possible carelessness when they entered the service, and must be regarded as fellow servants within the rule. It is very plain appellant knew, when he entered the service of this company, he would be exposed to the action of other servants of 572 DUTIES OF PRINCIPAL TO AGENT. the company; that, on an emergency, he might be called upon to make repairs, as in this case, not in the shed, but on a track, and be exposed to the acts of engine-drivers and others, whose business called them on to the same track. Admitting, as the demurrer does, all the facts and the inferences fairly to be drawn from them, there is no cause of action made out, and the circuit court did right in sus- taining the demurrer, and its judgment must be affirmed. See case of Illinois Central Railroad Company v. Modglin, ante, p. 481, Judgment affirmed \ DANIELS V. UNION PACIFIC RAILWAY COMPANY. 1890. Supreme Court of Utah. 6 Utah 357. Blackburn, J. — This is a suit by a brakeman, an employee of the defendant company, for an injury to him while in the line of his duty on a train that was wrecked. He was severely injured, and permanently in one leg and one of his shoulders, so as to be unable to perform manual labor. The evidence tends to show that the train on which the plaintiff was at work as brakeman was wrecked by a broken wheel ; that there was an old crack in the wheel, which could have been seen by proper inspection ; and the question was fairly submitted to the jury, and they found that this was negligence in the defendant company. We think the evidence abundantly sup- ports this finding. It was the duty of the company to furnish reason- ably safe cars for the running trains, and to have them inspected with reasonable care at proper intervals; and, if an emplo3'ee was injured by a neglect to perform this duty, the company is liable to him for the damage he sustained. On this branch of the subject we see no error. The instructions, as we think, state well and fairly the law of the ^ In Chicago, etc., R. R. Co. v. Kneirim, 152 111. 458, it was held that it was a question for the jury to decide whether a helper in a train yard is a fellow servant with a brakeman on a train coming from a distance. "The question as to who are fellow servants is a mixed question of law and fact." Gary, J., in Wilson v. Railway Co., 51 S. Car. 79, 96. In Wilson v. Madison, etc., R. R. Co., 18 Ind. 226, the plaintiflf, a general employee of the railroad, was injured while uncoupling freight cars. On page 230 Worden, J., said : "The fact that the plaintiff, under his employment, had duties to perform other than coupling and uncoupling cars, can make no difference in the case. If he received an injury while in the performance of that service, his rights can neither be enlarged nor diminished by the fact that his employment embraced other ser\'ice." In Specs V. Boggs, 198 Pa. St. 112, it was held that a girl employed in the tailoring department of a dry goods store is a fellow servant of a boy employed to run an elevator set apart for the exclusive use of employees. I y/i and nr tiu-: it was 1 h'. i;.,. V, ^^rvant of .mv: tti-''. , I'Ondent cannot recc ■J. -i^ to who : and great vari, •o review thci'. ^ it of authority i^ cr fellow servants, , L be engaged in the b,.,. ■■ foreman, be eiiipi'.. c*] i; ftment in wr" inal relation.- 'Otive of pre." shall be at other ill the — i.-S shall bring ..„. xercise an influL , i each other '.nd to be so siti '• •- labor, •nd watch the co . other i ^s. Railroac nee in this jt in the same line do with the runnii. . , iuctor, but reports to, is app' md is under the dire '■ ^* zo conassociation wi* !. unless casually : no work in ccr; "" to act t' .>t say, t: !S case, was a fellow occurred. s contended, also, b;. iiat point the jury rovince of the jnrv ; and they dou! ■ " authorized to "I one leg for ■ V.H-- vholl, . . ., . red entuelv ■ die same head of the or that ion, as li.. . e of proper -.-* -■ ■'. to SUl'-_i V :.~C :e and care- .. 203. The r of cnrs is .e respoi (itieiore, we caiuiot say y; that, . ... . , _ IS, as in be exposed to the a called them on to th all the facts and th' is no cause of actioi, taining the deiniiT, of Illinois Cent- • Truicnnent aflV on th ■ 'Irivers upon 1. ■■■' !ii sn.s- See case DANIEI FlC RAIL )MPANY. ports this fi ab' re.. by a licglect io the damage he error. nriii-. in -it ; difir-c: .... .i: that service. his rn,-.'r,vr,. Dloyee of the .ne of his ured, and i»e unable Liiai the train vv I c'cked by a :, which could on was fairly ■ ■ . 1. J.C. \\ ■ i':>r t niastcr --* that 10 lie as 1] '^rhc 1-1 es must be pre- from i:. here th'^ ...^,.. _. .. aken as those of the on of this exception le a servant assumes •^g that a servr.:: !:i .., to possible nc '■' ■ ith a view to po- nd upon the same .". um.; ■ hich probably afford as grea; >ccupation. Can it Ij rs within the scope ■ ductor, superintends vn duties ? To the a\ '1 between grades of - it was based upon ■ ii. — that founded ur ' vation of IS'Jr. Tm ■T2U. S. 377- • ' thus cj" , o subjec: ^he one, or .- uiied U- 0\ i^ii^l .■ leg. He ^n\cr as neg^li- xl to fall from ->f speed ; that - "tted to re- • and to be answered, rt and al- ii tile part oi i:i.nckson. There was lrs.i',v. for $1,625.-^ :>: * * n was a fellow-servant of vviioevci . f.. ctijci tha Lt the company is, there- fore, not Ir iect elabc'rate briefs have been filed upon t ' >- all tho • ithorities. We shall T ■eviev/. e of the hope- less C( t convince any 0. s the law *ijtered upon a 'he subject '>f fellow-serva : • • V 1 ^ .■ . , ■ cd. Prob- ihly the leadin; '.\i Amerio : 'plying the ■ >e of fel' r^all thf ;»n master, of Far^'. ' <^ W. F ) 49. All VAC Ci. lirectly or indirci i-^Hce Shaw in that case. : 'vay system > the couutj-y w.i iher large co; jjorations emp'' .1 in the pursuit of one genern! -^" ;.. actions and engaged in. many r' ■ affairs was then just ■ i'lrtion oi ihc emitted. employer's liability. 575 arising, and the vast change of conditions in the relations of master and servant was onl}- then beginning to appear. The extent of that change and the consequences of applying old rules to new conditions could not then be foreseen. In that case, as in all others upon the subject, the reasons for the rule exempting masters from liability to servants for injuries produced by the negligence of their fellow- servants are stated as twofold: First, that such injuries must be pre- sumed to be within the contemplation of the parties when they made their contract ; and second, that public policy requires the enforce- ment of such a rule, upon the theory that by enforcing it each servant is made closely observant of the acts of his fellow-servants, and that the scrutiny of one another naturally tends to efficiency and care. The first reason given, where the rule is sought to be applied without discrimination to all servants of a common master, has already been completely set aside and disregarded, even by those courts in America most inclined to conservatism upon the subject. It is everywhere conceded that inasmuch as a corporation can only act through agents and all agents are servants, the logical application of the rule would discharge a corporation entirely from liability to its servants, and this gives rise to a corollary that where the negligence is that of a vice-principal whose acts must be taken as those of the master, the rule does not apply. The recognition of this exception was necessary to preserve another rule, that while a servant assumes the dangers incident to his employment, he does not assume dangers caused by the negligence of his master. There is as much reason for holding that a servant in entering an employment contracts with a view to possible negligence of the master as to hold that he contracts with a view to possible negligence of the man who works beside him and upon the same footing. To illustrate by reference to railways, which probably afiford as great a variety of grades in employment as any occupation. Can it be logically said that a section man in the matters within the scope of his employment is less liable to err than a conductor, superintendent, or general manager with reference to his own duties ? To the writer's mind, when the first distinction was drawn between grades of servants, the force of the general rule, so far as it was based upon contract, was destroyed. As to the second reason, — that founded upon public policy, — there is much force in the observation of Mr. Justice Field in Chicago, M. & St. P. R. Co. V. Ross, 112 U. S. 377: "It may be doubted whether the exemption has the effect thus claimed for it. We have never known parties more willing to subject themselves to dangers of life or limb because, if losing the one, or suffering in the other, damages could be recov- ered by their representatives or themselves for their loss or injury. The dread of personal injury has always proved sufficient to bring into exercise the vigilance and activity of the servant." Still we con- cede that there may be some force to the rule so far as grounded upon public policy and confined to servants who are, in the language 576 DUTIES OF PRINCIPAL TO AGENT. of the Supreme Court of Illinois, "consociated by means of their daily duties or co-operating in the same department of duty or the same line of employment." (Chicago & N. W. R. Co. v. Moranda, 93 111. 316). Beyond this line we can see no force in it. When the au- thorities are examined it is found that they range themselves in two general classes, those following the opinion of Chief Justice Shaw and those distinguishing between grades of employment, and em- ployes in distinct departments of service. The principal objection urged to the latter class is that by adopting such distinctions the courts overthrow a general rule of easy application and adopt one not susceptible of precise application and uncertain in its results. Possibly this objection is well taken. If so, we can only say that it accords with the general spirit of the common law. Perhaps the main distinction between the civil law and the common law is that the civil law is based upon well-defined logical rules readily susceptible of ascertainment, while the common law is founded upon broader general principles, to be applied to the diversity of human affairs in such a manner as to favor individual liberty and to conform them- selves to changed conditions. When the law of fellow-servants was first announced business enterprises were comparatively small and simple. The servants of one master were not numerous. They were all engaged in the pursuit of a simple and cominon undertak- ing. Now, things have changed. Large enterprises are conducted by persons or by corporations employing vast numbers of servants divided into classes, each pursuing a different portion of the work, and each practically independent of the other. The old reasons do not apply to the new conditions. We are not prepared in this case to propose any set rule for always determining when two employes are fellow-servants within the meaning of the law and when they are not, nor are we required for present purposes so to do. Erickson was a section man. He was employed with several others to keep the road-bed and the track in repair. The fireman was employed to fire the engine and perform certain duties in connection with the opera- tion of trains. Some one was employed at Grand Island to load the tenders with coal. With either the fireman or this third person Erickson had nothing in common, except that he drew his pay from a common source, and that in a broad sense they were all carrying out parts of a vast transportation business. Erickson had no control over either of the others, no^ opportunities of judging their com- petency, no supervision of their specific acts, and only by adopting the broadest rule as announced by Chief Justice Shaw could we hold them to be fellow-servants. This rule we are not prepared to adopt. We hold on the contrary that employment in the service of a com- mon master is not alone sufficient to constitute two men fellow- servants within the rule exempting the master from liability to one for injuries caused by the negHgence of the other, and that to make the rule applicable there must be some consociation in the same de- e iigiit uf qi; supreme co"- o. V. Ross, . ere not f elloA v ... other errors disc i :■. a of instructions. r:ic branches of the c •.■ instructions, as '■' arc co lined of, simply i Uidgment affirmc't. 1906. Court ( : .8 Ky. I LE, J. — '' r the Campbell court, enter', ' " 'e ed of appellr i ;ed in it- , , it, a cor; Licking river in ti ""' to its elevator i; ■ the bank at tht iie float with ari ■■ ■verlookinr" tbc = .;"e d upon the oth' rs are moved u]. over a drum r-.pe , ■ -.ted in the cr. ioat is a horv he steam n: :>vel.-r); V.-r,v .1. s of their :'ity or th€ ;?i 1 eiiipio; ' ^la, 93 ' ' , . jJeyond \\i- au- s are exami' -v.:iL,i.-ii classe?, '•' M.^ .^,.,1/ ■ ,t.C ollUvV and those dist: >,"n grad. . and em- ployes in disti • f serviv Mection urged to the I by ad • .IS the courts of eap; iiid adopt one not sr Mtion -■: in its results. Possibly t •nly say that it nr/'orr]-; " Perhaps the law is that the ..f.>yi'.i:t! lily susceptible ;] law is upon broader ii^ :ie diver' 1 affairs in 1 liberty . c^rm them- •: ttie law oi rvants was w ere comp. small and \ere noi us. They i ^luiple and . undertak- i. Large enterj . conducted b) pc: .;.-•. of servants dividt' n of the work, ■ ■'•- oi the othci. i he old reasons do •^. We are not prepared in this case to pn lys determining when two employes are fell' eaning 0+ •' ■ '•■'^v and when they are not, nor are \\ esent p^ ) to do. Erickson was a section n '-- ' ' others to keep the road-bed and t IS employed to fire the eng-ine and .)n with the opera- tion of trains. T'bnd to load the tenders with, coal. ird person Erickson had mit'i; .s pay from a common sor.. re all carrying out parts of a > , iiad no contr^ ' over either of '■, lig their co pekTu:y, no si; ;> by adopting" the broadest rt. could we hold them to be fell' lueparcd to adopt. We hold on ti service of a corn- mon master i two men fellr servants wt*^^' om liability to Oi.^. for injuriv . and that to make 'ihe rule appii.i L:-j iii ere mast De soni'. cm --cuition in the same d.^ employer's liability. 577 partment of duty or line of employment. For the purposes of this case we are content to follow the opinion of Mr. Justice Miller in Garrahy v. Kansas City, St. J. & C. B. R. Co., 25 Fed. Rep. 258, where, in the light of quite recent decisions and of the mature judg- ment of the supreme court of the United States in Chicago, M. & St. P. R. Co. V. Ross, supra, he held that persons occupying such rela- tions were not fellow-servants within the meaning of the rule. The other errors discussed in the briefs relate to the giving and refusal of instructions. If we are right in the conclusions reached on the branches of the case already discussed, there was no error in the instructions, as those given and refused, so far as they are com- plained of, simply relate to those questions. - Judgment affirmed. DANA V. BLACKBURN. 1906. Court of Appeals of Kentucky. 28 Ky. L. 695. Settle, J.— This is an appeal from a judgment of the Campbell circuit court, entered upon the verdict of a jury, whereby appellee recovered of appellant $750 in damages for personal injuries received while engaged in its service as a shoveler of coal. Appellant, a corporation, owns and operates a coal elevator on the Licking river in the city of Newport. The coal it handles is carried to its elevator in barges which are moored to a float and the float to the bank at the foot of a double track tramway which con- nects the float wath an engine house and coal sheds on an elevated point overlooking the river. The coal is loaded from the barge in cars standinj^ on the float, which are run up one of the tracks of the tramway to the coal sheds above, and when emptied of coal are returned upon the other track of the tramway to the float below. The cars are moved up and down by means of a wire cable which ]>asses over a drum operated by a steam engine, the drum and engine being- situated in the engine house at the top of the tramway. On the float is a hopper supported by upright posts. By the use of a steam digger coal may be dumped into the hopper, through which it runs into the cars when placed beneath the hopper to receive it. \\'hen the steam digger is not in use the coal is thrown by ap- pellant's shovelers from the barge into the cars on the float with shovels, and such was the manner of loading the coal on the cars " Cases holding the "different department" rule are collected in 26 Cyc. 1342. 37 — Reinhard Cases. 578 DUTIES OF PRINCIPAL TO AGENT. when appellee received the injuries complained of. The shovelers were paid for their work by appellant according to the number of cars loaded by them respectively. A shoveler and truckman were assigned to each car, it being the duty of the truckman to aid the shoveler in getting the empty car to the place on the float where it could be loaded by the shoveler from the barge, and the further duty of the two after it was loaded, the shoveler by pushing and the truckman by pulling it, to move and adjust the car to the track of the tramway, and when the loaded car was adjusted to the track upon which it ascends to the coal sheds, it was the duty of the shoveler who loaded it to attach it to the wire cable by dropping the ring at the end of the cable over the hook, or "gooseneck," on the end of the car, after which the car would by the action of the engine and drum in pulling the cable be drawn to- the unloading place above. Although several employes of appellant were present when ap- pellee was injured, some of whom were introduced as witnesses, none of them saw or could tell how it was done. The only witness on that point was appellee himself, and his testimony is quite con- fused and indefinite. When questioned by his counsel as to the manner of receiving his injuries, he said : "Well, there was a certain car after dinner, and when I was taking it down to the run, Mr. Elam Grizzell — I think that is his name — which are the river boss was taking mud off the track and I hollered to him to get out so I could pull the cable wire rope. After he had gotten out why I taken hold of the hook and swung to put it over the gooseneck, and as I did why I sort of slipped and throwed my hand up against the car. At that time I looked down the car and was going, I struggled to^ get aside of it and found my- self I was being mashed and that was the last I knowed of." Upon being asked if he did not slip before he was caught by the car, appellee said : "When I was feeling for the cable as I went to hook it, I slipped and got against the car ; that is the last I remember of it till I was being mashed.'- But taking appellee's testimony as a whole, and giving it a mean- ing most favorable to him, it was in substance that after loading a car, he was assisted by the truckman to get in position for its ascent to the coal shed and had just attached it to the cable when, without notice to him, it was started up the tramway, observing which he tried to get out of its way, but in doing so slipped and fell, which oc- casioned his being caught between the car and a post of the hopper, whereby his body was crushed, several of his ribs broken, and other injuries of a serious nature sustained by him. His testimony fully establishes the fact that it was his duty to attach the cable to the car and that he had so attached it before he was injured. Indeed, the latter fact cannot be disputed, for the car could not be moved until it was so attached. I l that he '- lid not tell • nan or not. i by one otlvri \ i^ineer without .i limine room <■ tell when tl' and when i . iDre a sigTial 1 by a signal fro' was not at th^^ ■ from the ti uidow of the engine when lie air ■. and no other witness d that he ^^ • time. Tn hrief. there o testimony thar • ir without a -' r was that < ;y Oi itic ii . I not be sin;" . ence of the , uciated wi<1i vorked undc ''^nving the i 'l ruckman w: : ~. did noi ■t, 2? K'- llee ve>.^ for the' :.jnr.! '.}c i--";;;,. duty of the Uv trtickman by i the tramwav. upon whi; shoveler w ring at tli end of *^ and I r the hi inellant .0 shovelers •lumber of knian were ' aid the here it Lurther lud the ;ack of ■c track ;c duLy of the , dropping the eneck," on the ' -n of the engine unloading place sent when ap- es ses, none A-itnc^? on ns testi. and throv\ , the car an;i ^\r• < so riTfachc ed. several ed, for the it a mea'^. ......r loading a n for its ascent ' 'jii, without which he icll, which " of the hopp'. broken, and ot! [is testimony fuJ. , 1 he cable to the car jured. Indeed, thr •lot be moved ut: employer's liability. 579 It is appellee's contention that he was injured by the negligence of appellant's engineer, that the latter was his superior in authority, and that the negligence consisted in the moving of the car by which he was injured without notice to him and before he could reach a place of safety after attaching the cable to it. His own testimony was that he gave no signal to the engineer to start the car, and that as in attaching the cable to the car and when injured, he was so situated that he could not see the truckman, or be seen by him, he could not tell whether the car was moved by a signal from the truckman or not. Appellee also testified, in which he was corrob- orated by one other witness, that the car was sometimes started by the engineer without a signal, for when looking from the window of the engine room out on the tramway and float, as he often did, he could tell when the cable was attached to the car by its taut con- dition, and when in such condition he knew the car could be moved ; therefore a signal was unnecessary ; but that the car was usually started by a signal from the truckman to the engineer. If the engi- neer was not at the window, or in sight, the signal was given by a halloo from the truckman. In testifying, appellee would not undertake to say, and did not know, whether or not the engineer was at the window of the engine house when he attached the cable to the car, and no other witness testified that he was at the window at that time. In brief, there was no testimony that tended to prove whether the car was started with or without a signal. The only testimony as to the moving of the car was that of appellee, and though it be admitted that it was started without notice to him, and before he was ready for it to start, and that some one was guilty of negligence in thus starting it, the identity of the negligent servant is tmdisclosed by the evidence. It will not be sufficient to say that appellee was injured either by the negligence of the engineer or truckman. Manifestly, the truck- man associated with appellee in his work was his fellow-servant, both worked under the same foreman and in the same department, neither having the right to command or control the other. The fact that the truckman was accustomed to give signals for the starting of the cars did not make him appellee's superior. In I. C. R. R. Co. V. Stewart, 23 Ky. L. 637, it was held that a switchman could not recover of the railroad company because of the negligence of another switchman in giving improper signals, as they were fellow- servants. Indeed, it seems to be conceded by counsel for appellee that he and the truckman were fellow-servants, so even if it be ad- mitted that the engineer was appellee's superior in appellant's serv- ice, as contended by the former, as at most the testimonv only tends to prove that appellee's injuries may have resulted from the negli- gence of the engineer or truckman, and the inference that they re- sulted from the negligence of the truckman, a fellow-servant, for which appellant is not liable, being just as strong as that they re- 580 DUTIES OF PRINCIPAL TO AGENT. suited from the negligence of the engineer, a recovery was un- authorized. The burden was upon appellee to prove that his injuries were caused by the negligence of a servant of appellant superior to himself in authority. The mere fact that he was injured while in appellant's service is not evidence that he was injured by the negligence of a superior, or even of a fellow-servant. Nor is such negligence to be presumed, and as appellant, in the absence of proof of negligence, is not re- quired to account for appellee's injuries, the fact that it did not upon the trial attempt to do so, gave no support to appellee's con- tention. Louisville Gas. Co. v. Kaufman-Straus |& Co., 105 Ky. 131 ; Hughes V. R. R. Co., 91 Ky. 526; Wintuski's Adm'r v. L. & N. R. R. Co., 14 Ky. L. 579. While in this state the common-law doctrine of respondeat su- perior applies where a brakeman on a railroad train is injured by gross negligence upon the part of the engineer of the same train, we have been referred to no case which extends this doctrine to an in- jury to a servant caused by the negligence of a stationary engineer employed by the same master and engaged in the same service with the injured servant. No evidence was offered in the case at bar which tended to show that the elevator engineer was a representa- tive of the master in respect to other workmen in the master's service engaged in the work of transferring coal from barges in the river to coal sheds on the hill above. In that work, appellee, the engineer, and all other workmen about the barges and elevators, were directed and controlled by a superintendent in appellant's employ known as the "river boss," but, according to the proof of the engineer, did not control or command appellee or the other work- men about him. In a certain sense, appellee and the truckman had as much control over the cars as the engineer ; they filled and moved them on the float to the point where they were attached to the cable, and when that was done the engineer controlled their movements until they reached the coal sheds. The engineer was, therefore, a fellow-servant of appellee, and if the latter was injured by his negligence — of which there was no proof — svich injury was incidental to the work in which both were engaged, and one of the ordinary risks pertaining thereto. Sherman & Redfield on Negligence, § 109 ; Fort Hill Stone Co. v. Orms' Adm'r. 84 Ky. 182 ; Doyle v. Swift Iron ,& Steel Works, 5 Ky. L. 59. We do not think the evidence shows that appellee and the engineer were employes working in dififerent departments of the same service, as contended by counsel. There are numerous cases, some of them decided by this court, holding that employes working in a distinct and independent department, although in the same line of service, as engineers operating dififerent trains, are co-agents, and not fellow- servants. \^olz V. C. &. O. Ry. Co., 95 Ky. 188; L. & N. R. R. Co. V. Edmonds, 23 Ky. L. 1049. enlt-j:: -e 'are uit on the encourn ,' rule as to i It." "= * * !" '.rther on . additional r ss either tI, aal assi ■. . ily co-opci-' • !. or in the .-: r to incite . or hv ' on m- on rial •her •jt the apply tew in numi es so close)} •:umscribed i . or repoi'l u ances, all s? -servants in :.ig appellant ; our opinion the '• iction asked 3 testimony, the reason- •;ded for a in \ -inion. ole court sitti'i.r \^e Nnnn di '" engineer ijpellee received his area of operations er all was required. ; ■ .ite with by €x- ir- •vi J*^ ri, the ir . Theb-i wervj ^;HUsed by the iiiinself in authority The mere fact t\' not evidence that h even of a fellow-s. and as appellor quired to acc< - upon the trial tention. Lori Hughes V R. R. Co., i, r..y. '. While in this «t as much contt' >; them on t' and when until they reached The engineer w: the latter was proof — such i; en Pa lied, and c Vv'e do not i' w ere employe-" as content" decided b; > and indooendr ured while of plVrtf !.■ injuries, tl -e no su' , 'rnnn-^t' aon-law doci od in th the elevator engi lect to other -wc oi ^ransferrinsf ' was un- :.is injuries superior to vice is lor, or limed, IS not re- it did not appellee's con- .'105 Ky. 131; "r v. L. & N. espondeat sur- injured by c train, we .< to an in- y engineer • rvice with ase at bar representa- ■■' master's •ge? in the e. In thciL work, appellee, the bout the barges and elevators, a supeinntendent in appellant's , !)Ut, according to the proof of the nimand appellee or the other work- ■-.-'■- ■■--'-■ and the truckman had : thev filled and moved ■"ed to the cable, eir movements /f nnnellee, and if re was no both were . Sherman Lo. V. Orms' « 5 Ky. L. 59. •■"jer ';e, some of them l.iUg in a distinct me line of service, " " and not fello"; i-N.R. R. ( here ar employer's liability. 581 In discussing the different department doctrine, McKinney on Fellow Servants, p. 168, § 74, says : "The different department lim- itation or doctrine of consociation, seems to be founded entirely on the fact that servants in different departments of a large industrial enterprise are unable to exercise any influence upon one another on the encouragement of caution, and the supposed reasons for the rule as to fellow-servants failing, the courts refuse to apply it." * * * Further on in the same section (74), page 173, the author pre- sents additional reasons for the doctrine in question as follows : "Unless either their duties are such that they usually bring about personal association between such servants, or unless they are actually co-operating at the time of the injury in the business in hand, or in the same line of employment, they have generally no power to incite each other to caution by counsel, exhortation or ex- ample, or by reporting delinquencies to the master." The principles on which the separate department rule rests do not apply to this case. Appellant's plant is a small one, and its opera- tives few in number. They were at the time appellee received his injuries so closely associated in work and the area of operations so circumscribed that but one superintendent over all was required. Each employe had an opportunity to observe and communicate with his fellow-servants, to caution them by counsel, incite them by ex- ample, or report their delinquencies to the master. Under such cir- cumstances, all save the superintendent were on an equality, and fellow-servants in appellant's employ. We can find no grounds for holding appellant responsible in damages for appellee's injuries, and in our opinion the trial court should have granted the peremptory instruction asked by appellant's counsel at the conclusion of ap- pellee's testimony.^ * * * For the reasons indicated the judgment is reversed and cause remanded for a new trial and further proceedings consistent with the opinion. Whole court sitting. Judge Nunn dissents from so much of the foregoing opinion as holds the engineer a fellow-servant of the appellee. - ^ A portion of the opinion is omitted. " "The practical difficulty in trying to enforce the department doctrine is that it is nowhere stated of what the departments shall he composed. The term or name is employed as expressive of a class, but there has been no attempt to classify. The result is contrary judgments upon the same facts, an irrecon- cilable contrariety of opinion, with a natural and to-be-expected confusion in the law, with no better or more satisfactory results to either the master or servant than were attained before the doctrine was announced." Marshall, J., in Grattis v. Kansas City, etc., R. R., 153 Mo. 380, 395. 582 DUTIES OF PRINCIPAL TO AGENT. INDIANAPOLIS & GREENFIELD RAPID TRANSIT COM- PANY V. FOREMAN. 1903. Supreme Court of Indiana. 162 Ind. 85. Monks, J. — Appellee brought this action against appellant and the Kirkpatrick Construction Company, a corporation, to recover for a personal injury alleged to have been caused by the negligence of said corporations. The defendants jointly filed a demurrer to each paragraph of the amended complaint, and each defendant filed a separate demurrer to each paragraph of the complaint. These de- murrers, which challenged each paragraph of the complaint for want of facts, were overruled by the court, to which ruling the defend- ants "jointly and separately excepted." A trial of said cause re- sulted in a general verdict against appellee as to the Kirkpatrick Company and in favor of appellee against appellant. Appellant filed a motion for a new trial, which was overruled, and judgment was rendered on the verdict in favor of appellee. The errors assigned call in question the action of the court in overruling (i) the joint demurrer of appellant and said construction company to the amended complaint, (2) the separate demurrer of appellant to each paragraph of the amended complaint, and (3) ap- pellant's motion for a new trial. The amended complaint is also challenged by an assignment that the same "does not state facts sufficient to constitute a cause of action." Appellee insists that appellant's assignment of errors predicated upon the exception taken by appellant to the rulings on the demur- rers to each paragraph of the complaint presents no question as to the sufficiency of the paragraphs thereof, citing City of South Bend V. Turner, 156 Ind. 418, 421, 54 L. R. A. 396, 83 Am. St. 200. It will be Deserved that in the case cited the exception was joint, while in this case the defendants "jointly and separately excepted." 7t is clear, therefore, that the case cited is not in point here. The first paragraph of the amended complaint proceeds upon a common-law liability. Appellant was, on May 27, 1901, "a cor- poration owning and operating an interurban street railway extend- ing from Irvington to Greenfield, in this state, and was a com- mon carrier of passengers for hire. On said day appellee was an employe of appellant as a common laborer, and was engaged with divers others in constructing a spur from appellant's track to Spring Lake, a distance of three-fourths of a mile. Appellant had in use on said day a car known as a work car, which had been and was used in carrying its employes to divers points along said road where they were engaged and employed by appellant in building, maintaining, and repairing its said line of road. After said day's work had been finished, at about 6:30 p. m., appellee, with divers other employes of appellant, entered said work car on said spur for the purpose of I wit. th;: thar the ^oll'^Mn' . t! ■ ence an 1,. -senq-er-' it is also ai' i-.M,. ilee was t-:,. _ ; nd had no c •\t to or a p ; vants in cha^ rs with '. ' ere wit'^ ited with ihi . said passt'i: acI ^ charge of said \ ^oi, bvu was simply - reenter therer- \i,e] lee says that naragraph of on-law lia- " and that tl; ' '■-'- his was occasi' ■■ 'is my, W'hose ui. hose of the . , 7 Ind. 43^^. \as held in the '.. 5 Ind. 339, <>' to an emplo\ > employes oi 1 with whiv'i. _ irtment with er, were overrn' I, 31 Ind. 174. ! :::f said rule: "Bir. • -a liability in t cases ; and 12, Hi ! xeitnc: the Kirkpatric' a personal inj-, said corporati' paragraph of separate deirv murrers, v of fact.,. . rers i the su„. ..... V. Turner, 15^ will \><='. Dbservm a.>r while in this case • is " 7t is clear, the- The first p.. common-law liability, ppration owning and ■ ing from Irvingti "^"" carrier of p^i ve of appcP '' crs in con-^i m: inr^ .n si)Ui tanoe nf three-fourths of , n as a work c: yes to diver ^ were ■■ and employed b and r-i -.., .. ^ as said line of r< finished, at abc>ut 6:30 p. m., :. ■\t and , er for nee of (1 each :ni filed a These de- oaragra nt for want court, ' ,, .he defend- cepted." I^ ' said caiise re- iinst appellc iie Kirkpatrick v-e against ay Appellant filed '■ was overruicij Igment was ' of appelke. the act )e court in -,'ellant a mstruction laiht, {2) til cnmrrer of . . ihe amended - .'.d (3) ap- trial. The amende , Int is also nt that the same "d<:c,< u-.n state facts j^e of action." " It's assignment of errors predicated reliant to the ruhngs on the demur- : presents no question as to . , citing City of South Bend \. 396. 83 Am. St. 200. It a.>'* ..ted the exception was joint, !s "jointly and separately excepted." 1 ' ' i^oint here proceeds upon a ^i, "a cor- V ay extend- hI was a com- .ir.,.iiee was an .„ sanie comnr IjOiil V li ;Hes and services tending- to ^e same v main- taining and op( : mine, or erecting a i ier the same general > effect 1 . ille V. Cleveland, etc • 4ir. A\' . ; 'those employed in f iimg of ballasting the track, renv '. > nd thrw_ It stations, at- tending t' .. ; ■','■_-. i;;' iture upon the road, a - all be well r garde '2 iiid. -, whose duty ' . etc., w! fried to his by a collision witii a ireight train. negligence of the engineer in charge he court's attention was called to the , etc, R, Co., supra, and Fitzpatrick ' a, and on page 33 it v as said : "The >t overlooked, hv the liter cases. ., R. Co >; Tnd. J do, etc. •ef erred to V. Toledo, !d, 31 Tnd. burgh, etc., R. Co., 58 ground or. pellant. li a an employer • another c more fittit.. lint Ml':- court she- i. vvk ;-•" clearly es T37 hul. 306, 310. Vrnold, supra, is 10 the same effect : R. A. 792. and Cc.:.^;.^ Cite !. 461, 469, and rases cii. Spencer v. <■ 'hio, etc., R. ^ ke V. Peiunsylvania Co.. cited ; Capper v. Louis\ '* ' 'o. V. Dailey, ^ ' 'a, etc., R. ca-t;. Sullivan 3 certain^; ,,v,m consistent with the ! have a right of recovery in the ap- hcation of the rule that or an injury caused by • eral undertaking, it is 1 LO give a remedy, than ntroduce doubtful exceptions to , :,.-.;n,- :.ir V r,-v v. Barnes, , R. Co. v. . Hig cases are i ^o 'ind. 82, 85, St. R. Co., :ia Co., 130 184, and cases L. R. A. 811, 103 Ind. 305 ; ' Mid cas^ cited ; 'ollen Trial Proc., r under the ::ed in com- employer's liability. 585 mon labor upon its track, was a fellow-servant with those in charge of the passenger-car. It is a general rule in this state that employes, while being trans- ported to and from their work on the cars of trains of their employ- ers, are fellow-servants of those engaged in the same general under- taking, and if injured, while being so carried, by the negligence of a fellow-servant, the employer is not liable therefor. Bailey Masters' Liability 283, 360, 361, and cases cited. Ohio, etc., R. Co. v. Ham- mersley, 28 Ind. 371 ; Wilson v. Madison, etc., R. Co., supra, and cases cited ; Capper v. Louisville, etc., R. Co., supra, and cases cited ; Ohio, etc.. R. Co. v. Tindall, 13 Ind. 366, 369, 74 Am. Dec. 259, and cases cited ; Gormley v. Ohio, etc., R. Co., supra ; Bowles v. Indiana R. Co., 27 Ind. App. 672, 675, and cases cited; Ewald v. Chicago City R. Co., 70 Wis. 420, 36 N. W. 12, 5 Am. St. 178; Oilman v. Eastern R. Corp., 10 Allen 233, 87 Am. Dec. 635 ; Gillshannon v. Stony Brook R. Corp., 10 Cush. 22^ : Rvan v. Cumberland Vallev R. Co., 23 Pa. St. 384;^ Vick v. New York, etc., R. Co., 95 N. Y. 267, 47 Am. Rep. 36. The allegation that the work appellee was engaged in doing had no connection with, nor was in any way connected with or incident to or a part of, the work or employment of the motorman or servants in charge of the passenger-car, and the allegation that he was sim- ply a passenger on the work-car, and the allegation that appellant owed him a duty, and was bound to carry him safely, are mere con- clusions of the pleader, and are not admitted by the demurrer, and cannot control the special facts alleged, which show that he was a fel- low-servant of those in charge of the passenger-car. Woollen Trial Proc, § 1037. It is true that if an employe is injured by the negligence of a fel- low-servant who is incompetent, and this incompetency is the proxi- mate cause of the injury, the employer is liable therefor if he knew, or could by the exercise of ordinary care have known, of such incom- petency, and the injured employe was not guilty of any negligence contiibuting to his injur\% and did not know and could not have known of such incompetency by the exercise of ordinary care. For if an injured employe has knowledge of the incompetency of his fellow-servant by whose negligence he is injured, and enters the service with such knowledge, or continues therein after he obtains, or could by the exercise of ordinary care have obtained, such knowl- edge, he assumes the risks incident to such incompetency. Lake Shore, etc.. R. Co. v. Stupak, 108 Ind. i. 5, 6, and cases cited : Louis- ville, etc., R. Co. V. Sandford, 117 Ind. 265-269, and cases cited; Indianapolis, etc., R. Co. v. Watson, 114 Ind. 20. 25, 27, 5 Am. St. 578, and cases cited ; Indiana, etc., R. Co. v. Dailey, supra; Louis- ville, etc., R. Co. V. Kemper, 147 Ind. 561, 565-567, and cases cited; Kroy V. Chicago, etc., R. Co., 32 Iowa 357 ; Woollen Trial Proc., §§ 1347, 1348, 1352. No such facts were alleged in said paragraph. 586 DUTIES OF PRINCIPAL TO AGENT. It follows that the court erred in overruling the demurrer to the first paragraph of the amended complaint.^ * * * - Judgment reversed. YEOMANS V. CONTRA COSTA STEAM NAVIGATION COMPANY. 1872. Supreme Court of California. 44 Cal. 71. Appeal from the district court of the twelfth judicial district, city and county of San Francisco. The following is the eighth instruction referred to in the opinion : 'Tf you believe from the evidence that an explosion of defendants' boiler took place at their depot on the 27th day of August, 1866, and the said plaintifif, while standing on the platform of defendants, in the depot where passengers usually went, in getting on and off the cars, that the plaintiff, while in that position, was then intending to take passage on said cars, and about to step into the baggage car, where he had often and usually ridden ; that there was no regulation of defendants against his going in the baggage car, and the plaintiff, while in this position, was, without his fault, injured by an explosion of defendants' boiler, then the plaintiff has made out a prima facie case, and is entitled to recover, unless the defendants have shown that the explosion of the boiler was the result of inevitable casualty, or from some cause which attentive care could not prevent." NiLES, J. — The plaintiff recovered a judgment for damag'es for injuries received from the explosion of a boiler upon a locomotive owned by the defendants. The appeal is taken from the judgment and from the order over- ruling defendants' motion for a new trial. At the time of the injury the defendants were common carriers of freight and passengers between San Francisco and Petaluma, using steamboats between San Francisco and Rudesel's Landing, and be- tween the latter and Petaluma a small locomotive and train of cars. There was no separate charge for passage; it was all one line and was under one management, the captain of the steamboat acting as conductor on the cars. At the date of the accident the plaintiff was keeping a bar upon the steamboat under an agreement with the defendants, he paying to them the sum of two hundred dollars per month for the privilege and use of the bar, with the use of a stateroom and such meals as he ^ A portion of the opinion is omitted. ^ Cases repudiating the "different department" rule are collected in 26 Cyc. 1344- The court in Whaalan v. R. R., 8 Ohio St. 249, declined either to reject or adopt the "different department" rule, saying that each case must be decided upon its particular facts. itv d(.l plaintiri if- .... „i that place, r, Cisco, the boiler oi ^ncer, explode^: ifif recovered . At the close of c .Li[u-.-i jil, gave to the jir. "First— If the j- were engaged in ' •isco to Petaluma. 'nring the montl. -riod of time th'.: r'fendants a bar i;u n...- lereon to tend tin period, r.r n said route fr< i •■■R- on the Petaluma reek, from wher, '-^^ were bv defend- nts conveyed to tv :^.d from the Tov irs ; that for said - art of the consider,! . Iff to the defenda'it!-:. 'Ute by said cai' i'at on the 27th li- ars at the depot thei i I 'Steamer, and by a. of said bar; thai , -icfendants, usually • .rriving by said cars. > liler of the lo- ■'<;ness or n^ . of said Uk' . ... .... j.Jaintiff, not ' iS injury), the plain!; er for a . Hfl I Li!'.' aoh of {' omplaii and coujitv The foli. "If ^oP ' boiler ^ thr - rulint^ deft ■ At tlie t:: frei^^ht an ' steamboat tween the There was no - was under one co'nductor on t! At the date v -'vamboat und': •)STA ST! ^ON iPANY. rALIFORN the twel ' ,il diotnct, city truction rei"' n the opinion: nee that an i of defendants' ■ n the 27th d: 'Mst, 1866, and ^- on the pb' lefendants, in illy went, it: >n and off the that positior. '. •'ing' to ihout to ste; . -e car, 11. : that ' ' . tegulation e baggai. !C plaintiff, at his fault, . V an explosion laintiff has 1 • '^rima facie unless the ;ve shown .vas the result 'v, ; u \ :La!>ie casualty, ^'e cJire C'->uld not prevent." 1 for damages for :pon a locomotive judgmen ■-,L'r ri^-pi". uew trial. ■ ;■. .. 1_ . ' '! 'ii t;Lrriers dj; ^taluma, using ntr, and b'' . iin of cSi - U one line and i'io;it acting 3'^ . war upon tlic he pa>'ing to • the privilei' .'h meals as ' '344 The cour; adopt the "V; ' collected m 20 L. d either to reject :ase must be deci! employer's liability. 587 mig'ht desire upon the boat, and receiving to his own use the profits of all sales of liquors, etc. In addition to his business as barkeeper he acted as express messenger under employment by Wells, Fargo & Co., and received from the express compan}^ for his services in that capacity fifty dollars per month. Wells, Fargo & Co. paid to the defendants a monthly rate for carrying their packages and messen- ger over the route. The plaintiff resided at Petaluma, and as he was about to enter the cars at that place, intending to make the usual daily trip to San Fran- cisco, the boiler of the locomotive, then in charge of the defendants' engineer, exploded and caused the personal injury for which the plaintiff recovered judgment in this action. At the close of the testimony the court, at the request of the plain- tiff, gave to the jury the following instructions: "First — If the jury believe from the evidence that the defendants were engaged in the transportation of passengers from San Fran- cisco to Petaluma, and from Petaluma to San Francisco, before and during the month of August, A. D. 1866; that during this same period of time the plaintiff rented at a monthly or other rental of defendants a bar on the steamer of the defendants, and traveled thereon to tend the same ; that said steamer, during said period, ran on said route from San Francisco to a landing on the Petaluma Creek, from whence the passengers so transported were by defend- ants conveyed to the Town of Petaluma, by cars propelled by steam, and from the Town of Petaluma to said landing by means of said cars ; that for said rental of said bar it was understood and agreed as part of the consideration for the rental agreed to be paid by the plain- tiff to the defendants, that the plaintiff should be transported on said route by said cars and steamer, without other or further charge ; that on the 27th day of August, 1866, the said plaintiff came to said cars at the depot thereof at Petaluma, for the purpose of going to said steamer, and by and on said steamer to San Francisco, in. attend- ance of said bar; that he was standing in the depot on the platform of defendants, usually occupied by passengers who were departing or arriving by said cars, for the purpose of getting on said cars, when the boiler of the locomotive attached to said cars blew up, through the carelessness or negligence of the engineer of defendants, who was in charge of said locomotive, and the plaintiff was injured thereby (he, the, plaintiff, not being guilty of any negligence contributing to his injury), the plaintiff is entitled to recover. "Second — If the jury believe from the evidence that the defend- ants were engaged in the transportation of passengers from San Francisco to Petaluma, and from Petaluma to San Francisco, before and during the month of August, A. D. t866 ; that during the same periods of time Wells, Fargo & Co. employed the plaintiff to carry their express matter between said places, and paid the defendants to transport said express matter for a certain sum of money per month ; 588 DUTIES OF PRINCIPAL TO AGENT. and said plaintiff and said defendant entered upon said arrangement, and were engaged in the same during said period of time, and that it was understood and agreed between said defendants and Wells, Fargo & Co. that the plaintiff, as their messenger, should be trans- ported with their said express matter from San Francisco to Peta- luma, and from Petaluma to San Francisco, during said period of time ; that the defendants made such transportation by cars pro- pelled by steam, and a steamer ; that said cars started from the town of Petaluma; that while thus engaged the plaintiff, during said period of time, came to said cars, at the depot thereof, for the pur- pose of going to San Francisco; that he was standing on the plat- form of said defendants, near said cars, for the. purpose of stepping into a car of defendants (and that said platform was usually used by passengers departing or arriving by said cars), when the boiler of the locomotive attached to said cars exploded, through the negli- gence or carelessness of the engineer employed by the defendants, who was then in charge of said locomotive, and the plaintiff was in- jured thereby (the plaintiff not being guilty of any negligence which contributed to his injury), then the plaintiff is entitled to re- cover damages for such injury." The defendants excepted to these instructions, and contend that the case is within the reason of the rule that an employer is not re- sponsible to his employe for injuries resulting from the negligence, carelessness, or unskilfulness of a fellow employe engaged in the same general business. The rule itself cannot be questioned. It has been settled by a uni- form series of both English and American decisions. The question comes upon the application of the principle to the present case. The reason usually given in the cases for the rule, as we have stated it, is that a servant, in bargaining with his employer is pre- sumed to know the ordinary risks of the business in which he is to engage, and can obtain a compensation in accordance with the risk, or at his option decline the employment. Among the ordinary perils of the service are those arising from the carelessness or neg- ligence of co-laborers, and they are presumed to be provided for in the bargain which he makes. He assumes the risk as a part of his contract of service. The duty of the employer in this regard ex- tends no further than to the use of due care and prudence in the selection of competent servants in the several departments of the business. (Farwell v. Boston & Worcester Railroad Co., 4 Met. 49; Albro V. Agawam Canal Co., 6 Cush. 'jy; Ryan v. Cumberland Valley Railroad Co., 23 Pa. St. 385 ; Russell v. Hudson River Rail- road Co., 17 N. Y. 137; Hard v. Vermont, etc.. Railroad Co., 32 Vt. 477; Sher. & Red. on Neg., §§ 86, 88, 90, and cases cited.) The doctrine of these cases is not based wholly or mainly upon the theory that the employe is presumed to know the nature of the risk. I 589 se of Abraham v. F' by UK- ' " "' ■ " test in incurrcu .^ \ -■ thit a guest a; e had the sr .h he was. do not thini , l^ >i iiicient. An c or management of - nboat or lo( • r wa"? carel . • ■'.y or U' upon '-. ^ trom Habi!! from the n suid . be- I ne co-laborer c dy .entered into v. n by him of thes^ We do not think n of the rule. A I contended that n of an ordinary employe of the • an apartment v^ 'e. His ion for t . in the receipts ■ !e for its proper c ^ the same establishni^ '■ -lors and cigars U die transportatii. een the same ii at for any other nd occupy, for f store, and an e _ merchant's clerk, it not be respf^'^ -'■•'' • ■njuries resiii :i the letter or rea- li Co., merely, it is ;M-r!ir,ie(l fhe posi- sense Mieral line of de^ •• ./.c.i.c.i. It. ' . licjcuient. re engaged" , and that .' ■ understood ad Wells, Fargo & Co. that l ; be trans- ported with their s. . icUuCi J. I Peta- luma; and from TV ..a Franc : lOd of time; that the deteud-^ U; such i: cars pro- pelled by steam, and ? ihnt ^ni,i i'le town of Petahima; that ■r^v... :; said period of time. • • . •, a I iijt- :, MJi uie pur- pose of going ; that h', .i; on the plat- form of s-cv' ■'d cars, i^r . se of stepping into a car 'nt said pla. usually used by pa.^ by sa;(l the boiler of the . ars expk -,^A the negli- gence ■•-■ ;ineer- emplr le defendants. -wh'-. '■< locomotive, a iamtiff was in- n' jt being gu. :iy negligence ■ , then the piau' : titled to re- ;itend that i is not re- iries resulting from the negligence, •r ;..n,-n.^ .-.Tl--.^-- engaged in the stated it, is th o,,y',r.A to knov . and ca Of ai his optioij. perils of the servic; li gence of co-labor c the bargain which j ntract of service. ■■:'U. vu^ fin-ther tb : compt ics of th'" tisation ucy ccic : . He a 1 he duty of r; • Hard V ;ouca, K. nas ly^xn settled by a uni- ' Americpn decisions. The question the present case. .. - the rule, as we have irgaining with his employer is pre- the tijcory that the employe is presu; ' -ss in which he is to ance with the risk, "'-r ordinary ss or neg- lu'.'ided for in ,.; a part of his 'cgard ex- ..-a:nce In thr^ ■ tments of t i Co.' 4 M' V-. Cumberla •on River Rr: . ..ad Co., 32 \ .3 cited.) ily or mainly up now the nature of h employer's liability. 589 In the case of Abraham v. Reynolds, 5 Hurlst. & Nor. 147, cited by the appellant, it was suggested by Chief Baron Pollock that the test in such cases was whether the party injured, knowing the risk, incurred it voluntarily ; and, as an illustration of the principle, said that a guest at a house was in the same position as a servant, be- cause he had the same means of judging the character of the house in which he was. We do not think that the test suggested by the learned judge is sufficient. An ordinary passenger acquainted with the structure or management of steam engines might know that the boiler upon a steamboat or locomotive was unsafe, or might observe that the engineer was careless or incompetent, and yet be willing, from mo- tives of necessity or interest, to encounter the risk of travel. Yet this knowledge upon his part would not absolve the carrier of pas- sengers from liability for damages for injuries received by the pas- senger from the negligence of the engineer, or insufficiency of the boiler. The co-laborer cannot recover in such a case, because he know- ingly entered into a contract, from which the law implies an assump- tion by him of these very risks. We do not think the present case comes within the letter or rea- son of the rule. As messenger for Wells, Fargo & Co., merely, it is not contended that the plaintiff would not have occupied the posi- tion of an ordinary passenger. As barkeeper, he was in no sense an employe of the defendants. He was a lessee, for a monthly rent, of an apartment upon their boat, which he occupied for purposes of trade. His transportation over the route was a part of the con- sideration for the monthly payment. The defendants had no inter- est in the receipts of his business, and could not hold him account- able for its proper conduct. The parties were in no sense members of the same establishment for one common purpose. The vending of liquors and cigars to passengers was no part of the business in which the transportation company were engaged. The case would have been the same if the plaintiff had leased an apartment upon the boat for any other species of trade. If a cigar vendor should rent and occupy, for the purposes of his trade, a corner of a mer- chant's store, and an explosion should occur through the negligence of the merchant's clerk, it would not be contended that the merchant would not be responsible in damages to the cigar vendor for per- sonal injuries resulting from the accident. The fact that the place of trade was upon a steamboat can make no difference in the appli- cation of the principle. Grave objections have been made to the rule which relieves a mas- ter from liability for damages incurred by the negligence of a fellow servant. While the rule is too firmly supported by authority to be overthrown, we are unwilling to extend it beyond the limits desig- nated by the general line of decisions. 590 DUTIES OF PRINCIPAL TO AGENT. We think that the plaintiff in the hypothetical case stated in the instructions was entitled to the privileges and remedies of an ordi- nary passenger. It follows, that the court did not err in giving these instructions, or in refusing those asked by the defendants in opposition to them. There was no error in the eighth instruction, given at the request of the plaintiff. It premises that the jury must be satisfied from the evidence that the plaintiff, at the time the explosion occurred, was standing upon the platform, intending to take passage on the cars, and about to step into the car ; and then directs the application of the well-settled principle that as between a passenger and a common carrier of passengers, the proof of the occurrence of an accident, without fault of the passenger, is prima facie proof of negligence on the part of the carrier. (Boyce v. Cal. Stage Co., 25 Cal. 467; Ficken v. Jones, 28 Cal. 627.) It was a contested issue whether the plaintiff was or was not a passenger, and the jury were required substantially to find this issue in favor of the plaintiff, before applying the principle of law em- bodied in the instruction. Third — The sixth instruction asked by the defendants was sub- stantially given in the charge of the court, and a repetition of it could not benefit the defendants. We see nothing in the other points made by the defendants which requires special notice. The record discloses no error which calls for a reversal. Judgment and order affirmed.^ KANSAS PAC. RY. CO. v. SALMON. 1873. Supreme Court of Kansas, ii Kan. 83. Valentine, J. — This was an action brought by Margaret Salmon, administratrix of the estate of Daniel Salmon deceased, against the Kansas Pacific Railway Company, to recover damages for wrong- fully causing the death of said Daniel Salmon. The issues were ^ See particularly Murray v. Currie, L. R. 6 C. P. 24. In Jones v. St. Louis, etc., Ry. Co., 125 Mo. 666, it was held that a porter on a Pullman car is not a fellow-servant of the engineer operating the train. "I can well conceive that the general servant of A might, by working toward a common end along with the servants of B and submitting himself to the control and orders of B, become pro hac vice B's servant, in such sense as not only to disable him from recovering from B for injuries sustained through the fault of B"s proper servants, but to exclude the liability of A for injury oc- casioned, by his fault, to B's own workmen." Lord Watson in Johnson v. Lindsay, L. R., 1891, App. Cas. 371, 382. id bv I— At'ii. .im. the , •' the sai(j ' marriage. 3d. — The d' rier, as alleged in the such owned and operal' 4th. — On the 13th of !-. for a long time })re\ ioi ■t as locomotive ^ at Ellsworcir .■• ■ defendant, accusto nui an engine, to Dlsvvorth, a distar with his family, ir eastern end of his ■ "den by the forer: the consent ant, to be ordet' any engine oi _ - jant at any rp iie said 13th of September, having v at Ellsworth, '■■" set out to ride t ■ '■■■ - - ■■ t-^- rendant's freight defendant f •ited the dec an engine froi'; : ■ and as such the freight-: v..im with a cal tl railway, and ot; ' o their work lit said Sail Y lare, and wa ?'-' • and the ■^n'' e prohii V- emplo>c_. vere known beioni )d defendant, go tiiat tij. -.a in tl" was eiiL an ord; rver. , . ;, that tb i ruction ^ oi in refusing those to then! There was no err ■ ' ij liioi; '-equest of the plaintiff. It 1 ■ the jur\ ->n the evidence th; time t: standing iij • idinin- t" and about to si i>-ation of the well-settled ,1 common carrier of ] of the • an accident. without- ■■■■■ -■■ hi'ini, )f negiigeucc on the 25 Cal. 467 ; Fickcn L; v^ the plaintiff was or was not a pa: this issut . law em of the court, and r points mad' •ord disci 'endants was sub- !'.on of it could. ats which hich call: T.^TOX I Valentine, ; administratrix C' Kansas Pacific ful! --— " ',aret Salmoi. ' 'to'ainst ti"i r wronp ues wer* d that a port' "1 car. a crinH' fauli ol ii b ;n such sense as in tstained through tl; of A for injury 0^: atson in Johnson \ EMPLOYERS LIABILITY. 59I tried by a jury; and on the trial the parties submitted the following agreed statement of facts to the jury as evidence, to wit: "ist. The plaintiff is the administratrix of the estate of Daniel Salmon, deceased, duly and legally appointed, as in the petition alleged. 2d. — At the time of the death of Daniel Salmon, he left surviving him, the plaintiff, Margaret Salmon, his widow, and two children of the said Margaret and the said Daniel, issue of their marriage. 3d. — The defendant is a corporation and common car- rier, as alleged in the petition, and also of freight trains ; and as such owned and operated the line of railroad alleged in the petition. 4th. — On the 13th of September, 1870, said Daniel Salmon was, and for a long time previous thereto had been in the employ of the de- fendant as locomotive engineer. The family of the said Salmon resided at Ellsworth, and the said Salmon was, by permission of the defendant, accustomed, on days when it was not his regular turn to run an engine, to return upon his route on defendant's trains to Ellsworth, a distance of twenty-three miles from Brookville, to stay with his family, instead of remaining at Brookville, which was the eastern end of his regular run as an engineer ; and this was not for- bidden by the foreman of engineers, his immediate superior, but was by the consent and permission of the defendant; but he was then subject to be ordered by defendant to take charge of any engine of defendant at any moment. And on the morning of the said 13th of September, having remained all night with his family at Ellsworth, he set out to ride to Brookville, as was his custom to do, upon the defendant's freight train (which did not carry passengers, and was by the defendant forbidden to do so, unless the facts herein stated constituted the deceased a passenger), to take his run; that is, to operate an engine from Brookville westward, according to his regu- lar turn; and as such employe, by permission of the conductor in charge of the freight-train from Ellsworth to Brookville, being a freight train wuth a caboose car, in which laborers upon the line of the said railway, and other employes, had been and were accustomed to travel to their work on said road, with the assent and permission of defendant said Salmon got into the caboose car for the purpose of going to Brookville to resume his duties as such engineer at said point. He paid no fare, nor was he requested by the conductor to pay any fare, and was known to the conductor as an employe as aforesaid ; and the said Salmon knew the usages of defendant re- specting the prohibition of passengers upon freight trains. He was not actually employed in operating that train in any capacity, and such facts were known to the conductor of such train. On the road between Ellsworth and Brookville, in the state of Kansas, and while said Daniel Salmon was in the caboose car as aforesaid, the train was endeavoring to ascend a heavy grade, and being unable to do so, backed down the grade, and came in collision with another train belonging to said defendant, going in an opposite direction from the 592 DUTIES OF PRINCIPAL TO AGENT. way the aforesaid train was backing down. The trains so coming into collision, the car in which said Daniel Salmon was, was crushed without fault or negligence on his part, and was thrown from the track, and he mortally wounded thereby, from which mortal wound he died the succeeding day. That the injury received by him and from which he died was not occasioned by any neglect or fault on his part, other than may be legitimately inferred from the facts aforesaid." There was some evidence introduced on the trial, but nothing that in the least affects or modifies the foregoing agreed statement of facts. The jury found a special verdict; and in their verdict they found the facts literally as agreed to in the foregoing statement, ex- cept that they omitted the following concluding words of the agreed statement of facts, to wit — "other than may be legitimately inferred from the facts aforesaid." The jury made some other findings, but it is scarcely necessary to notice them, for those that harmonize with the foregoing statement of facts raise no question of law not al- ready raised by such agreed statement, and those that conflict with said agreed statement were found by the jury without any evi- dence to sustain them, and against the evidence. The main, and in fact the only question in this case is, whether the deceased was a passenger, or merely an employe of the defendant, while riding on the defendant's train. If he was a passenger, the other facts would undoubtedly give the plaintiff the right to recover in this case ; but if he was merely an employe, the plaintiff would not have any such right. The court, among other instructions, charged the jury as follows : 'T instruct you that the mere, naked, unexplained fact of a col- lision of two trains of cars, operated by the same railroad company, raises the presumption of negligence on the part of the company." And the jury, in pursuance of this instruction, found as follows: "5th — The death of said Daniel Salmon was caused by the negli- gence of the defendant, without any fault of the said Daniel Sal- mon" — and upon this finding the court below rendered judgment for the plaintiff and against the defendant. All this would have been correct if the deceased had been a passenger ; but it was cer- tainly incorrect if the deceased was only an employe of the company. The said collision was the only proof of negligence on the part of the railroad company introduced on the trial. A collision always pre- sumptively shows negligence, but whether negligence of the com- pany, or negligence merely of some one or more of its officers, agents, or employes, is the important question in this case. As be- tween the railroad company and a passenger, the negligence of any officer, agent, employe or servant of the company is the negligence of the company itself ; but as between the railway company and one of its employes, the negligence of another employe, a co-employe, is not at all the negligence of the company. (Dow v. K. P. Ry. Co., EMPLOVER S LIABILITY ' Kan. ' herefore while a Cf -^'■' ■Hi Lj'c part of the o — : ^r. vet it never prov. iian any oinc t ail the ne,t;:',, Vs to railroad c( •'•^'tdent, the ■•■ ■..,, ^.v. ther agei f the rai general oi; ' ' ■■ '.ny, in fact ■ persons, w v_s or noc. i^al of a collisi' on the part of ne of these ,., rs. it .: ^) show .;ence on the iii-^^l-rni igineer, nductor, or of the day, who ha^ - ' v\ as the decea:- .:-, not every rson who may ,■ i ride upon in, that can r. r that he is ed to all the /; 'TT P Rv. . Nichols, 8 ' lot a passengvi ollowing: He b< tny ticket or pa or pay any fa ■. or act as a passenger •ye of the railway c ■ne acted as such .t train, and roc'. " "" because he of the com]/ ons except e elusion the < ■ liome to the irpose of p-: e caboose Cr torn, usage, he facts of w-i Viresaid l. corning in. i), the ca' !- crushed without fault or ne on his part, ani from the track, and h^ -m.^n . 1-' thereby, froi r,\\ wound lie died the at the injur him and from whicli ;ir ■oned by m r fault on his part, other nately h. rlie facts aforesaid." There v:r duced on a; that in the lea?' vhe fore; .i.cment of facts. T!.. verdict edict they found i to in t. iTient, ex- cept th ■ ng conclu i ihe agreed stateni r than mav '■■ ■; inferred undings, but irnionizewith ti;: ■ .r, raise no <] ■w not al- ■.ement, and * 'iiiiict with uid by the ' any e^ ,..■ tI.,^ ev^.l. '.n, and ii. -.ed was a ( 01 inc. iiiic riding or. ;;er facts \\\ji.- 'y give the this case; bi merely an t liave any such The court. ;cd the jtir. ^- f . naked; ; fact of a co! ated by . road compaip ra ■''.nee on tl; e company." nd as follows ; ^-'V the negli- gence 'aniel Sal- mon"— judgment for the pL ould have '■■"■■- -orrecL ,. .-■. ■,.i. :t was ct"-- ncorreci 'IS only :.■: • compai. i / . -Aid r< ■"■ io part of the rni(ri'.;!il '~< n .ilways pre- ' the cor IS officei ■nportai ■'■'. in this case. As be- ■^nA , ■ -■, iif^fili gence of any officer, agent, c . rhe negligence of the : — cuuipany and one of its ' e, a co-employe, is ..oiiipaUj, . -^iJow V. K. P. Ry. Cr employer's liability. 593 8 Kan. 642.) Therefore while a colHsion presumptively proves negligence on the part of the company as between the company and a passenger, yet it never proves negligence on the part of the com- pany as between the company and one of its employes. It is a gen- eral rule that one employe does not represent the principal any more than any other employe ; and negligence between co-employes is not at all the negligence of the principal. This rule has its exceptions. As to railroad companies, the general manager, the general super- intendent, the general officer for the employment or discharge of the other agents and servants of the railway company, or indeed any other general officer, would probably be the representative of the company, in fact the company, as between the company and all other persons, whether such persons were employes or not. But proof of a collision does not at all show negligence on the part of any one of these general officers. It tends more properly to show negligence on the part of the brakeman, the fireman, the engineer, the conductor, or some other inferior officer, agent or servant of the company, who has a more close and direct connection with the col- lision. Was the deceased a passenger? We think not. It is not every person who may enter a car, or go upon a train, or even ride upon a train, that can thereby claim that he is a passenger, or that he is entitled to all the rights and privileges of a passenger. (U. P. Ry. Co. v. Nichols, 8 Kan. 505.) Among the reasons why the deceased was not a passenger in the legal sense of the term we would state the following: He bought no ticket, paid no fare, nor offered to buy any ticket or pay any fare. Nor did he intend to buy any ticket or pay any fare. He did not at any time claim to be a passenger, or act as such. He did not go into a passenger car, nor upon a passenger train. But on the contrary, as he was a mere employe of the railway company, he chose to ride as such, and all the time acted as such. He went into a caboose car attached to freight train, and rode in such caboose car as an employe of the company, because he was an employe, where other servants and employes of the company rode, and from which passengers, and all other persons except employes of the company, were excluded ; and of this exclusion the deceased had full knowledge. He was going from his home to the place of his employment, as was his custom, for the purpose of performing the duties of his employment, and rode in the caboose car on a freight train, and paid no fare, accord- ing to custom, usage, understanding and agreement of the parties. Now, as the facts of this case show beyond all doubt that the de- ceased was not a passenger, but merely an employe of the company, the charge of the court was erroneous, the finding of the jury with regard to the negligence of the company was erroneous, not being sustained by any evidence, and the judgment founded on the ver- 38 — Reinhard Cases. 594 DUTIES OF PRINCIPAL TO AGENT. diet was erroneous. The plaintiff did not by the evidence make out any case against the defendant, and the court therefore erred in re- fusing to grant a new trial. (Higgins v. Han. & St. Jo. Rd. Co., 36 Mo. 418; Gilshannon v. Stony Brook Rd. Co., 10 Cush. 288; Seaver v. Boston & Maine Rd. Co., 14 Gray 466; Russell v. Hud- son River Rd. Co.. ly N. Y. 134.) Chapter 93 of the laws of 1870, p. 197, has no application to this case. That act applies only where a railway company, as a company, has been negligent, and does not apply to negligence between co-employes of a railway company. The judgment of the court below must be reversed, and cause re- manded for a new trial. All the justices concurring.^ BAIRD V. PETTIT. 1872. Supreme Court of Pennsylvania. 70 Pa. St. 477, Williams, J. — The plaintiff below was employed as draftsman in the works carried on by the defendant for the manufacture of loco- motive engines. On the evening of the 15th of November, 1865, after the hands had quit work, he left the building where he was em- ployed and was on his way home, when he fell over a pile of dirt and rubbish on the sidewalk in front of the premises, a few feet from the steps of the building, which had been thrown out in deepening a cellar, and left on the pavement, and in falling received the injury for which this action was brought. The work of excavating the cellar was done under the superintendence of the carpenter employed to do the jobbing work about the premises, but the men who did the excavation, as the jury have found, were subject to the defendant's direction and control. Is the defendant, then, liable for the injury occasioned the plain- tiff by their negligence? If they were engaged in the same common employment with the plaintiff, the defendant is not responsible for the injury, because the plaintiff in entering into the defendant's service assumed all the risks usually and necessarily incident to the employment. One of these risks, as is well settled, is the liability to injury from the negligence of fellow workmen. But if they were not in the same common employment, the defendant is liable for the injury occasioned by their negligence, for the plaintiff did not take upon himself any risk except such as are ordinarily incident to the business in which he was engaged. The defendant's business was the manufacture of locomotive engines, for which the plaintiff was ^Accord: Russell v. Hudson River R. R., 17 N. Y. 134. Compare State, use of Abell, v. West IMd. R. R. Co., 63 Md. 433. nv II the ini '■ith what pv :d the cellar plaintiff? It takes the :>eci to (, sman. ti ; risks whic; nt. sen'an t to be q; to grant : ^^o. 418; nil or V. Bo. ' li River Rrl 197. has n :. Co., 1. ^4.) Chain, IS case. Th, . Rd. Co., '•'^h. 288; V . Hud- oi 1 870. iv where iovV aiUst be J use le- f^ETTTT sxcavation, <\ direction ana Is the defe n :nt. One 0+ > i.iom the 11'-^" 1 the same r .n wliicii iic \Vd5 ^i\: f.1C'^t■iro of ]nco!~;oti"' oiiian ui of loco- .ng ot i mber, 1865, lie left t; he was em- jme, wli pile Qf dirt front 01 . - ).e\v feet from . had b'' i in deepening- a ■ ived the injury excavating the center employed men who did the the defendant's c'd the plain- ijeiendanrs ■ident to the c liability to ... if they were is Viable for the (lid not take ident to the i ' :n(?ss was iliff was .ur.part Si> employer's liability. 595 employed to make the drawings. In accepting the employment he took upon himself all the risks necessarily incident to the business. But the workmen by whose negligence he was injured were not en- gaged in the manufacture of engines, nor in the performance of any service connected with the business. There is not a particle of evi- dence that the cellar they were excavating had been or was intended to be used for any purpose connected with the business carried on by the defendant. If, in order to exempt the master from respon- sibility, it is not necessary that "the servant causing, and the servant sustaining the injury should both be engaged in precisely the same or even similar acts," it is essential that they should be engaged in the same common employment, and that they should be working for the same common end. As it was the plaintiff's business to make drawings for tools and engines, all persons engaged, or in carrying on the works, however employed, must undoubtedly be regarded as his fellow-workmen and engaged in the same common employment. But with what propriety can it be said that the workmen who ex- cavated the cellar were engaged in the same common employment as the plaintiff? Servants, it is said, are engaged in a common em- ployment when each of them is occupied in service of such a kind that all the others, in the exercise of ordinary sagacity ought to be able to foresee, when accepting their employment, that it may prob- ably expose them to the risk of injury in case he is negligent. That this is the proper test is evident from the reason assigned for the exemption of masters from liability to their own servants, viz., that the servant takes the risk into account when fixing his wages. He cannot take into account a risk which he has no reason to anticipate, and he does take into account the risks which the average experience of his fellows has led him, as a class, to anticipate. Shearman & Redfield on Negligence 109. If this is the rule — and we are not disposed to question its soundness — how could the plaintiff, in the exercise of ordinary sagacity, foresee, when accepting the employ- ment of draftsman, that it would probably expose him to the risk of injury from the negligence of the workmen employed by the de- fendant to excavate the cellar? What reason had he to anticipate the risk so as to take it into account in fixing his wages? Mani- festly the negligence which occasioned the plaintiff's injury was not one of the risks which he assumed in entering into the defendant's employment. But there is another reason for holding that the rule which ex- empts a master from liability for an injury occasioned by the negli- gence of a servant does not apply in this case. The relation of mas- ter and servant did not exist between the parties when the plaintiff received the injury. He was not then in the service of the defend- ant ; he had quit work and was then on his way home. He was no longer subject to the defendant's control, or bound to obey his or- ders. As soon as he left the building he was his own master. He 596 DUTIES OF PRINCIPAL TO AGENT. was then no more in the defendant's service than any other citizen passing along the street, and he was entitled to the same rights and immunities. If the relation of master and servant did not cease when he left the building, after his day's work was done, when did it? It cannot be pretended that it followed the plaintiff home and remained with him while there. And if not, it must have ceased when he left the building, and he had the same right to an unob- structed sidewalk in front of defendant's premises as any other citi- zen; and if injured by a dangerous obstruction, the same remedy for an injury. It will scarcely be contended that if, while on his way home, he had been run down by the defendant's carriage, through the carelessness of the driver, the defendant would not have been responsible for the injury, because the negligence of the driver was one of the risks which the plaintiff assumed when he entered into his service. But in principle what difference is there between the two cases? Why is not the driver of defendant's carriage as much the plaintift''s fellow-servant as the digger of the cellar? And why should the plaintiff be required to foresee and take into account the risk arising from the negligence of the one and not the other? There is no real difference between the cases, and neither case is within the rule which exempts masters from liability for injuries occasioned by the negligence of their servants. It is clear that this case is not within the rule, not only for the reason that the injury did not happen to the plaintiff while he was engaged in the defend- ant's service, but because it was not occasioned by any of the risks he assumed when he entered into his employment. The risk which occasioned the injury was not one incident to the business, and to which only the workmen engaged in carrying it on were exposed ; but one unconnected with the business, and to which all citizens hav- ing occasion to pass along the street were as much exposed as the plaintiff and his fellow workmen. It follows from what we have said that there was no error in the instructions given by the learned judge of the district court to the jury, or in his refusal to affirm the points submitted by the defend- ant. Judgment affirmed.^ HARPER, BY Wood, His Next Friend, v. THE INDIAN- APOLIS & ST. LOUIS RAILROAD CO. 1871. Supreme Court of Missouri. 47 Mo. 567. Wagner, J. — This case was here on a former occasion, and will be found reported in 44 Mo. 488. The action was for damages, and ^ Compare Ewald v. Chicago, etc., R. Co., 70 Wis. 420. EMPLOY . "that on tl- . vi defendant h . ';r on said road : \ duties :i or nt; Uinrjijli the mii^iii, and drawing said etc.; that the injt' he was in the penv_.ii, carelessness on his pr from the fault, ne? ' that there w?is no ■ by i>ermission and autno! controlled by a firer^ ■ ^ '^ ' iiowledge and by ' )rmance of an eiu i !iie : that said fir( to perform . . engine, of ;. ' 'eient knowledge." The defendant, ans\'. J Te admitted, that the pening of the injury v of an engineer in and a d injury. All t; •vere contrOverte in the answer a'. expressly admiti . er who had been a .^f plaintiff was cond. injury, a competent , Ihe following abstract •fc :\r proved upc^r lh<"- !S appor )ad, and liy 9th, t80, as conductoi ^w.,., . ^he train; to superii cmg managed ana V • 1 , ' i 1 1 .-- 1- .- • \ ; ' M L - r I f-> he. fit or com- •t said loco- ■A] ?Tld COf*"- to deny, . . engine at t! I '.en no r V, -.- if^' It cannot remained with when he left structed sidev zen; and if i' for an injij home, h':- the c, respr,: l> mg occas i>laintiff a It folio instructions g jury, or in hio ant. [ndsment affirmeti citizen . ;>its and 1 maslv.-r . not cease his day'.- ■ when did follow €■ ne and And if i ceased he had the 1 unob- fendant's ;: ;ier citi- orous o!' 'emedy e conter 'V the 1,1 ' -j; i iiave L>een : driver was c entered into between tlie ge as much And why 'ccount the Oi die ' the other? ■ a the c. i;er case is > masters fi >r injuries : their ser^'' . .^ ar that this : only fo. liat the injury while he the defend- .s not or. of the risks i. ae risk which ,,-: >usiness, and to .-. were exposed; :a;u.u._ . ill citizens hav- street \'. exposed as the e said tt; error in the ourt to the the defend- JJvRPER, Ai'UL.i.S K INDIAN- [871. Supreme Coub vio. 567. Wagner, J. — This case wa« be found reported in 44 M • occasion, and will iv damages, and Compare Ewald v. Chicago. EMPLOYER S LIABILITY. 597 after it was sent back by this court for a re-trial, there was an amended petition and a verdict for the plaintiff. The amended pe- tition states "that on the 9th day of July, 1867, plaintiff w^as in the employ of defendant as conductor of one of its construction trains running on said road ; that on said day, while plaintiff was discharg- ing his duties as conductor of said train, he was, without any care- lessness or negligence on his part contributing thereto, but solely through the mismanagement of the locomotive engine attached to and drawing said train, thrown on the railroad track and injured, etc.; that the injuries so complained of resulted to plaintiff while he was in the performance of his duties as aforesaid, without any carelessness on his part contributing thereto, solely and directly from the fault, negligence and want of care of defendant, in this : that there was no engineer at said time upon or in charge of said locomotive engine, but the same was then and there, without the knowledge or consent of the plaintiff, but with the knowledge and by permission and authority of defendant, being managed and controlled by a fireman, said fireman being then and there, with the knowledge and by permission and authority of defendant, in the per- formance of an engineer's duties in and about said locomotive en- gine ; that said fireman was not an engineer, nor was he fit or com- petent to perform the duties of an engineer in and about said loco- motive engine, of all which defendant at said time had full and com- petent knowledge." The defendant, answering this petition, failed to deny, and there- fore admitted, that the fireman in charge of the engine at the hap- pening of the injury was not fit or competent to perform the duties of an engineer in and about the locomotive engine, and that plaintiff suffered injury. All the remaining allegations of the amended pe- tition w^ere controverted by the answer. Certain affirmative matter stated in the answer was denied in a reply filed by the plaintift", but it was expressly admitted in the replication that William Griffith, the engineer who had been assigned to the locomotive of the train whereof plaintiff was conductor, was, at the time of the happening of the injury, a competent and skilful engineer. The following abstract of the testimony presents the essential facts as proved upon the trial: That in February or March, 1866, plaintiiT was appointed conductor of a construction train on defend- ant's railroad, and continued in defendant's service in that capacity until July 9th, 1867, when he suffered the injury complained of. His duties as conductor were to direct the engineer when and where to move the train; to superintend and oversee a party of twenty or thirty laborers attached to the train when at work, and to act as brakesman and switchman where his services in those capacities were required. Plaintiff had no other authority over the engineer than that stated above; and with the management and control of the loco- 598 DUTIES OF PRINCIPAL TO AGENT. motive he was not permitted to interfere, that being a skilled em- ployment. The fireman was subordinate to the engineer and not subject to the orders of the conductor. At the time of the happening of the occurrence which gave rise to this suit, William Griffith was engi- neer of the locomotive attached to the train, and James Blansfield was fireman. Blansfield was appointed fireman on the 20th of June, 1867, previous to which time he had been a laborer. On the afternoon of July 9th, 1867, having finished work at Alton, plaintiff directed Griffith to take the train to Alton Junction, a distance of two or three miles; to slack up on arriving there, that plaintiff might cut off the last car, and then place the train in the sand-pit, a few hun- dred yards beyond the station. The train consisted of twelve or thirteen platform cars and a box-car, which was next to the engine. As the train arrived at the junction, plaintiff walked back, and, standing at the end of the last car but one, with his back to the loco- motive, stooped down and pulled out the coupling-pin. Before he could recover an upright position, the train, which had slacked its speed and was moving slowly, started suddenly ahead, plaintiff was thrown on the track, and was run over by the car which had been cut off and which was slowly following the train. When this oc- curred the engineer was on the platform at the junction, having, without plaintiff's knowledge, left the locomotive to the charge and management of Blansfield, the fireman, who had pursued that occu- pation but nineteen days. The movement of the train which threw plaintiff off was caused by the fireman letting on the steam. Plaintiff says in his testimony that he intended, after replacing the pin and regaining an upright position, to wave his hand for the engine to move ahead, but was prevented by the hasty and negligent act of Blansfield, who started without waiting for the signal. Upon this point there was evidence given for the defense tending to show that the plaintiff did give the signal ; but this was rebutted by counter- testimony in support of the plaintiff's statement. The evidence was conflicting, and therefore the jury alone could determine the fact. It was further testified that on defendant's railroad, with the knowl- edge of the superintendent of engineers, and without objection from or any restraint imposed by them, firemen were permitted to manage locomotives, in the absence of the engineers, at side-tracks, stations, and when switching, if deemed competent to do so by their respective engineers ; and that, in accordance with this state of facts, Griffith, deeming Blansfield competent, had, prior to the injury, yielded up management of the engine to him. It was also shown that the management of a locomotive so far involved science, skill and ex- perience, that firemen served an average term of three years as firemen before they were considered competent to assume the duties and responsibilities of engineers. Upon this state of facts the court gave the following instructions for the plaintiff: n the employ of the defe; his part locomoti"\ believe from the eviti or superintendent of of defendant's road |: motive engines, in the tions, and failed or plaintiff had knov, ' ' gincer's duty ther. dent performing s. "2. The jury ;; igs in this case that i n charge of the locohr... form the duties of an engii The othei" instructions : upon them in this court. ristructions : "i. The jury are ins+rr '1 his pleadings that ■igineer, the plaintift mst discard from their c^ ohn Harper as relai.; " •ritifith. "2. The jury are ir '\at, at the time of tl inploy as a conductor oi ^nc !S duties as such; that the i ther by plaintiff's o:\ri caw r by that of the engine, ley should find for the d. er care in the sel;- ■ of the respectiv . Hereof plaintiff was, "'^. The jury are ). ' that plaintiff, by hi.- -s, contributed to ri- se of ordniary c; • ULU have been avoidtn, n,c; The following instruction':, ed in the series, ised: '5. The jury are instructea 1 -f IS an engineer d^ic^ n r ; it has been est :'' • ''nd a periiiusMi ii . - '.mrt ga . admitted by the plaintiff ■ ompetent and skilful e fact, and the jury , of the testimony of ni<-A.: . :. ne was not ployuient. The fireman was the or.ders of the c; occurrence which g neer of the ' ■■ ■ >■ ■ was firema: 1867, previou.s of July 9th, 18 Griffith to takv three miles; to off the last car, an( dred yards ;:;-vi-^^i' thirteen pi. As the iTc.-, siai-'lu'ii:;- ar r meiivc, sto regaining an ii; move ahea-' ■ • Blansfield, point t'-. - the pL testimon)' conflicting. It was furlhei edge of the su; or an}' restrain locomotives, in and when switc engineers; and deeniinq; Blair^' j>erience, thai firemen before and responsibil gn--- ^-^''- I 10 .uueriere, t!. killed em- to the e' 'ject to the tir ■ if the lis suit, to the t engi- :sfield ointed Iv June, ., -I •„ . ,.- till, moon ;T directed LOU Juiic- - vo or ing tht iie train ^ iit cut ; iL, a few hun- The tra of twelve or .-car, which riction, plain; (0 the engine. ' back, and, r but one, wi > the loco- d out the c< ' ' fore he il, the train .ed its intiff was . had been ly following the the platform a e, left the locom' n this oc- •1. having, i large and ■e firemr; '■ ,;cd that occu- 'he mo\ '\ which threw earn. Plaintiff .g the pin and wave ' by the waiting- or the d' fur the engine to 1 negligent act of il. Upon tills ■ .'/ to show that , but tbi^ ■ d by counter- idence was .: the fact. he knowl- 'tion from ted to manage < acks, stations, heir respective CI facts, Griffith, injury,, yielded up -0 shown that the v-nce, skill and ex- id an ;i isidered of three years as i L.J assume the duties iers. V state of facts the court ions for 1 employer's liability. 599 "i. If the jury believe from the evidence that the plaintiff, while in the employ of the defendant, without any fault or negligence on his part contributing thereto, through the mismanagement of the locomotive engine by a fireman, suffered injury, and they further believe from the evidence that the superintendent of engineers on, or superintendent of, defendant's road knew that the engineers of defendant's road permitted firemen to manage and control loco- motive engines, in the absence of engineers, about switches and sta- tions, and failed or neglected to prohibit the same, then, unless plaintiff had knowledge that the fireman was permitted to do an en- gineer's duty therein on said engine, or was at the time of the acci- dent performing said duty, they will find a verdict for the plaintiff. "2. The jury are instructed that it stands admitted by the plead- ings in this case that the fireman, who at the time of the accident was in charge of the locomotive engine, was not fit or competent to per- form the duties of an engineer in and about said locomotive engine." The other instructions need not be noticed, as no point is made upon them in this court. For the defendant the court gave these instructions : "i. The jury are instructed that, it being admitted by the plaintiff in his pleadings that William Griffith was a competent and skilful engineer, the plaintiff is forbidden to dispute the fact, and the jury must discard from their consideration so much of the testimony of John Harper as related to the incapacity or want of sobriety of Griffith. "2. The jury are instructed that if they believe from the evidence that, at the time of the injury sued for, plaintiff was in defendant's employ as a conductor of one of its trains, and in the discharge of his duties as such ; that the injury complained of was occasioned either by plaintiff's own carelessness, unskilfulness or negligence, or by that of the engineer or other person in charge of the train, they should find for the defendant, provided defendant has exercised proper care in the selection of persons competent for the perform- ance of the respective duties of engineer and fireman of the train whereof plaintiff was, at the time of the injury, conductor. "3. The jury are instructed that if they believe from the evi- dence that plaintiff, by his own recklessness, carelessness or unskil- fulness, contributed to the injury for which he sues, or that by the exercise of ordniary care, skill or prudence on his part the accident could have been avoided, they will find for the defendant." The following instructions, which it is deemed necessary to notice as numbered in the series, and which were offered by the defendant, were refused : "5. The jury are instructed that the incapacity of the fireman to act as an engineer does not justify a recovery against defendant unless it has been established that the defendant authorized him to act as such ; and a permission to the engineer, when the fireman was 600 DUTIES OF PRINCIPAL TO AGENT. by the engineer deemed competent to act temporarily as engineer, does not make the defendant responsible for a mistake or negligence of the engineer in permitting a fireman to handle the engine when in- competent for the duty.^ * '" * "7. The jury are instructed that it is admitted by the plaintiff in his pleadings that William Griffith, the engineer of the train at the time of the accident sued for, was a careful, competent and skilful engineer; if, therefore, the jury should find from the evidence that Griffith was guilty of negligence in surrendering charge of the loco- motive engine of the train to one who was incompetent to manage it, and that plaintiff's injury was the result of such negligence, plain- tiff is not entitled to recover, because the negligence of his fellow- servant was one of the risks he assumed by his hiring to defendant. "8. The jury are instructed that if they believe from the evidence that the plaintiff was, at the time of the accident sued for, in defend- ant's employ as one of the conductors of its trains, and that the in- jury sued for was occasioned by the negligence, carelessness or un- skilfulness of one of those employed by defendant on the same train, and this without the knowledge or consent of defendant, then plain- tiff is not entitled to recover, if defendant has taken proper care to engage competent servants to perform the duty assigned to them, or if the plaintiff, at the time of the accident sued for, knew that the fireman only of the train was in charge of the engine, and plaintiff was acquainted with the fireman's abiUty and skill to perform the duties of engineer. "9. The jury are instructed that if they believe from the evidence that the injury was the result of the negligence or unskilfulness of one James Blansfield, a fireman at the time acting as engineer, and unfit to perform the duties of an engineer ; that Blansfield acted as engineer in compliance with a custom of the defendant to permit its firemen, in the absence of the engineer, to act as such, at stations or when switching; that this custom existed before plaintiff was employed as a conductor for defendant, and became known to him after his employment as conductor, then plaintiff is not entitled to recover." The tenth instruction, in reference to the person in charge of the engine being subordinate to the plaintiff, was properly refused, there being no evidence to justify it. The jury, in finding a verdict for the plaintiff, acting under the instructions of the court, must have found, and did find, that the plaintiff received the injury, and that he did not contribute thereto; that the accident happened in consequence of the mismanagement of a locomotive engine by a fireman; that the fireman was managing the engine with the knowledge or by permission or authority of de- ^A portion of the opinion is omitted. r.M l'L.V\ L: t, and ,1 against the i held otherwise wi reason of imp--' ' in the prosecu' ■'':■■. hoe or miscfiiuini,-: ; : . ; .. iry skill and cap-^ enipioyment of sn. of ordinary care <■ R. R. Co, 30 Mo. Hibson v. Pacific 1- In Shearman & employment of oij< laborer, to run a .- : i:[v-nce on the part ii. ■: rjc of the serva-. other place, "it is ' cient care and skii: jury to each other Neg, §§ 90, 91.) In the case of the IL ■ vas held that the co.' njnn,'" received while tency • of an er . n to the compair . Y. 565, the court sa . i'lf}' happening to hir : i' master, and thi? :! and incompetent '■•: to be done, or f" •nents and facilit' !i they are to be recognizing and sponsible to thos. ence, carelessne.- I same general bu^;)" ■ <], then, which the la r, is that .are and ^k of th C^ it "pnX' 'ic or a CLMii.ui'.'.i iption of negli- , t he had actual .'ors state in an- serva: 'fi- \\iV: IV m- .: Redf. m the of its agent -5 ur applian 6(X) DUTIES OF PRINCIPAL TO AGi-vN « by the engineer deemed ,1.'./.. ...^ rr- a-e the defen. er in permil ,:> nipe:. !ii lor the dii' ■ "7. The jury aire hi? pie.idings that V time of the accideni It to act as engineer msible ^ - ".egHgena man to . wiien in 'intiff in engmeer ; 11, the 'lould n- ' ncc tnat Griffith was guil n surren the loco- motive engine o; who w.i managv it, and that plair. he result ^ciice, plain- tiff is not entit!' Liise th'. f his fellow- servant was -sumed ] [o defendant "8. Th- ■ it if they the evidence that the of the accide; n defend- ant's er ictors of its tr >it the in- jury sue by the negligence, c;' ^s or un ri-;i;' ,;-, •• ved by defend.:;- ' .-.cune trani. consent of ., then plain idant ha- . i- care h . u the dut , them, • e. of the accident suc that th was in charge of th': plaintil fireman's ability ancl I'orm th^: I that if the} ;rom the evidence of the negi . unskilfulness ot m at the tir as engineer, and lUliJL a.' leld acted a- eagiiieer mt to perniK its firemen, in tu such,. at stations or when switcbi ,,...,. -. 're plaintiff was employed as a ct- iidant, a € known to him after his employj: .- j-1-,.-,^. ■■ r '\ntitled to recover." The tenth ins: ;e of the engine being sul; ■cd, there being no evidenc . The jury, in •ig under the instructions of i. lid find, that the plaintiff received w )ntribute thereto; that the accident hai nsmanagement of a locomotive engine ■riajn: r n was managing the '^riQfine with the - .': or by ' authority of de- :t«l. employer's liability. 6oi fendant, and that this was without the plaintiff's knowledge or con- sent. The incompetency of the fireman to act as engineer is con- ceded. With the weight of the evidence we have nothing to do; the jury has passed upon that, and their verdict binds us. We have only to inquire whether the law was correctly laid down by the court. "Whilst this court has followed the prevailing doctrine that a servant of a corporation who has been injured by the negligence, misfeasance or misconduct of a fellow-servant, can maintain no action against the master for such injury, yet it has been expressly held otherwise where injuries to servants or workmen happen by reason of improper and defective machinery and appliances used in the prosecution of the work, or where the servant by whose neg- ligence or misconduct the injury was occasioned is not possessed of ordinary skill and capacity in the business intrusted to him, and the employment of such incompetent servant is attributable to the want of ordinary care on the part of the master. McDermott v. Pacific R. R. Co., 30 Mo. 115; Rollback v. Pacific R. R. Co., 43 Mo. 187; Gibson v. Pacific R. R. Co., 46 Mo. 163. In Shearman & Redfield on Negligence it is said that "proof of the employment of one who had always been a mere clerk or a common laborer, to run a steam engine, would raise a presumption of negli- gence on the part of the master, without showing that he had actual notice of the servant's antecedents ;" for, as the authors state in an- other place, "it is the duty of a master to employ servants of suffi- cient care and skill to make it probable that they will not cause in- jury to each other by the lack of those qualities." (Shearm. & Redf. Neg., §§ 90, 91.) In the case of the Illinois Cent. R. R. Co. v. Jewell, 46 111. 99, it was held that the company was liable to a fellow-servant for an injury received while in their employment, resulting from the in- competency of an engine-driver, where that incompetency was known to the company. In Wright v. N. Y. Cent. R. R. Co., 25 N. Y. 565, the court says : "The master is liable to his servant for any injury happening to him from the misconduct or personal negligence of the master, and this negligence may consist in the employment of outfit and incompetent servants and agents, or in furnishing for the work to be done, or for the use of the servants, machinery or other implements and facilities improper and unsafe for the purposes to which they are to be applied." In a later case in the same court, while recognizing and laying down the general rule that a master is not responsible to- those in his employ for injuries resulting from the negligence, carelessness or misconduct of a fellow-servant engaged in the same general business, the court proceeds to say : "The only ground, then, which the law recognizes, of liability on the part of the defendant, is that which arises from personal negligence, or such want of care and prudence in the management of its affairs or the selection of its agents or appliances, the omission of which oc- 602 DUTIES OF PRINCIPAL TO AGENT. casioned the injury, and which, if they had been exercised, would have averted it." Warner v. The Erie R. R. Co., 39 N. Y. 471. In Snow v. Housatonic R. R. Co., 8 Allen 444, 445, the supreme court of Massachusetts examines the principle and gives the rule the following clear exposition: "Now, while it is true, on the one hand, that a workman or servant, on entering into an employment, by implication agrees that he will undertake the ordinary risks in- cident to the service in which he is engaged — among which is the negligence of other servants employed in similar services by the same master — it is also true, on the other hand, that the employer or master impliedly contracts that he will use due care in engaging the services of those who are reasonably fit and competent for the per- formance of their respective duties in the common service, and will also take due precaution to adopt and use such machinery, apparatus, tools, appliances and means as are suitable and proper for the prose- cution of the business in which his servants are engaged, with a reasonable degree of safety to life and security against injury." The case of Noyes v. Smith, 28 Verm. 63, is also a case adopting the same principle ; and while it recognizes fully the rule that a master is not liable to his servant for an injury occasioned by the negligence of a fellow-servant in the course of their common employment, the court says : "Such rule has no application where there has been actual fault or negligence on the part of the master, either in the act from which the injury arose or in the selection or employment of the agent which caused the injury." This opinion is sustained by citing to its support the case of Hutchinson v. Ry. Co., 5 Wells, Hurl. & G. 352, which also thus qualifies the rule that the master shall have taken due care not to expose his servants to unreasonable risks. The Vermont court there lays down this rule : "The master, in relation to his fellow-servants, is bound to exercise diligence and care that he brings into his service only such as are capable, safe and trustworthy ; and for any neglect in exercising that diligence he is liable to his servant for injuries sustained from that neglect." It is not necessary that he should know that they are unsafe and incapable. It is suffi- cient that he would have known it if he had exercised reasonable care and diligence. (Id., and cases cited; Gibson v. Pacific R. R. Co., 46 Mo. 163.) Again, in the case of Gilman v. The Eastern R. R. Corporation, 10 xA-llen 233, 239, an employe of the defendant brought his action for an injury occasioned by the negligence of a switchman in failing properly to adjust the switch upon the track. The court held that the plaintiff, being a fellow-servant in the employ of the same railroad company, could not have recovered of their common master ; but they add : "The evidence offered by the plain- tiff at the trial was competent to show that the defendant, knowingly or in ignorance, caused by its own negligence, employed an habitual drunkard as a switchman, and thereby occasioned the accident. Of the sufficiency of this evidence a jury must judge. If the plaintiff ., a?i satis I '.-Jit ir. ] r ■na ana . care in providing servants, and is li' in this -regard." lliese cases inc >•.',; M-.rt tlie iV '■^ ihe instruv !-, duty in ei :onofitsbu£' r must be held r - astain this fact il :!ven on both si ad we think, tl. hole case was j; ■ refusal ol : asserted iv: : .. That exec, .. ^res that a pt : he engineer deei > -'-'• the del ■cer in ['. etent for th the compair le, but denio dered the act Judgment affirmed. portion of the opii ■ !■? the r]u'\ of ,^ ■■ • nt. ■ve ni the series, ar.u ! the fireman was by as engineer, did ■ r.c or r''-'''- •■x' of the ent i'\- le engmetr :rv, T , to i'jrv iv ( v.aM.>i:(..d the injur} lev hat'. ■-■d, woul V. Hou^: uj I u L K.n 1\ 1. assachu ■=' Co., 8 Allen •. the prin-: ' supreme " e rule the following clear Mow. A\ one hand, that a w< r" by implication a cident to the s ■ IS eiig .-. the neg-ligence of o( .\ved in ; .-ame master — it is a' >ther hand, tha master impl'>'^' " ''-ill use dv.e ■ ' & ' ' ' S '" ' ' ' services of . fit ami r the per for: ■i m th( !:e, and wi.i al:^ tools, a ; and use re suitable ar rv, apparati!-, the prose- rutior-; ;; his servani^ 1, with a ) life and security aj; '^^erm. 63, is also a ■ii-y." Th. ■ •i1)i'o- ill. ■gtiizes fully the , Au injury occasi v^ ' urse of their con^ ment, tlx lias no application has been e on the part of the.i in the act or in the selection i>r ent of the y." This opinion is - ..i by citing" taken c: VeruKjo' bis f.Il.-. cient that he w caref and diligence. Co., 46 Mo. t6'^.) swiicaniau ui 1: The court held ' ; the same nw common master , u. tiff at the trial was lutchinson v. Ry. Co., 5 Wells, Hurl ^■f'es the rule that the master shall have ervants to unreasonable risks. Tlie lis rtile: '"'The master, in relation i'.-. -xercise dili(r<'''''^e and care that h< ' trustworthy liable to hi uecessar . f'acinc i\. i- The Easter. .he defendant V to at! sufficieiicy of lii.s evidence a jui ogligence ot a a upon the traci .auit in the empk; recovered of the iiered ,by the r^""' defendant, know employed an hab;t;i. Hied the accident. ( udge. If the plainti; II employer's liability. 603 can satisfy them that such misconduct or negUgence in the defendant caused the injury, and that he himself used due care, he may main- tain his action." In the same case they say : "It is well settled, both in England and America, that a master is bound to use ordinary care in providing his structures and engines and in selecting his servants, and is liable to any of his fellow-servants for his negligence in this regard." These cases incontrovertibly establish the law and overwhelmingly support the theory upon which the case was submitted to the jury by the instructions. If the defendant was negligent or unmindful of its duty in employing competent and skilful servants in the execu- tion of its business, and injury resulted therefrom to a fellow-servant, it must be held responsible. And of the sufficiency of the proof to sustain this fact the jury were the proper judges. The instructions given on both sides fairly and substantially embraced these views, and we think, therefore, that they were unobjectionable. As the whole case was presented by the instructions given, we see no error in the refusal of instructions for defendant, as, with one exception, they asserted nothing that was not sufficiently covered by those given. That exception is in the one numbered five in the series, and declares that a permission to the engineer, when the fireman was by the engineer deemed competent to act temporarily as engineer, did not make the defendant responsible for a mistake or negligence of the engineer in permitting a fireman to handle the engine when in- competent for the duty. This instruction concedes the authority from the company to the engineer to allow a fireman to handle the engine, but denies that the employment by the engineer is to be considered the act of the company.^ * * >ic2 Judgment affirmed. ^ A portion of the opinion is omitted. ^ "It is the duty of a railroad company in employing its servants to use ordi- nary care and diligence to select only those who are fit and proper persons to be engaged in that duty. The care and diligence which is required is measured by the nature of the duties to be performed by the servant who is employed." McCrary, J., to jury in Crew v. St. Louis, etc., Ry. Co., 20 Fed. Rep. 87, 88. "In the absence of any evidence as to the exercise of care on his selection, proof that a servant who has been in that service but two or three weeks was incompetent when employed need not be supplemented by proof of the com- pany's knowledge of his incompetency. The presumption that defendant had done its duty is overcome by proof that the servant was incompetent when employed." McGrath, J., in Lee v. Alich. Cent. R. R. Co., 87 Mich. 574, 579. In Kersey v. Kansas City, etc., R. R., 79 Mo. 362, it was held that to entitle a servant to recover from the master for an injury caused by a fellow-servant, it is not sufficient to show that the fellow-servant was incompetent, and that the master was negligent in employing him; it must also be shown that the fellow-servant was guilty of negligence directly contributing to the injury. 604 DUTIES OF PRINCIPAL TO AGENT. TEXAS & PACIFIC RAILWAY COMPANY v. JOHNSON. 1896. Supreme Court of Texas. 89 Tex. 519. Brown, Assoc. J. — Joe Johnson was in the employ of the ap- pellant as conductor of a freight train and at the time of his injury was engaged in the discharge of his duty as conductor on a freight train going west from Fort Worth. The injury occurred on the second day of June, 1891. The train on which Johnson was acting as conductor stopped at a water tank for the purpose of taking water, and stayed there the usual and necessary time. When about to leave the tank the train on which Johnson was, was run into from the rear by another freight train, which was known as the second sec- tion of the first train. The second section was in charge of one C. S. Roberts as conductor. We copy the following from the conclusions of fact as found by the court of civil appeals : "3. That the regular conductor of section No. 2 of train 17 was one Conrad, but for some reason he did not go out on his train that night, as was expected, but one Roberts was put in charge of the train as conductor, and plaintiff did not know that Roberts was put in charge of the second section which was to follow him that night, and could not have known thereof by the use of ordinary diligence, as he left Fort Worth with his train some time before Roberts was put in charge of section two of the train. "4. That Roberts was in the employment of defendant as a brakeman, but had been, in May, 1890, appointed also to the position of 'extra conductor.' An extra conductor, as proven by the defend- ant's officers, is a man that runs other conductors' trains when they are laying off, sick, or something- of that kind, or might be called upon to act upon any train in the absence of the regular conductor. An extra conductor has no regular caboose crew. The plaintiff, at and before the accident, knew that Roberts had been appointed extra conductor, and was liable to be put in charge of trains at any time. "5. The plaintiff testified that he did not know, and had not been informed prior to the time of the injury, that Roberts v/as a reckless, incompetent conductor ; but the evidence showed that such was Rob- erts' general reputation among the employes of appellant on the division of the road w^here plaintiff and Roberts were both engaged, upon the testimony of which employes plaintiff mainly relied to show this general reputation, and that plaintiff and Roberts were per- sonally acquainted. Whether he had such knowledge then was a controverted issue in the case. "/. Plaintiff's injury was caused by the negligence and reckless- ness of Roberts, conductor on the second section of the train, in fail- ing to have his train under control, as required by defendant's rules, when he ran into the water station. ,s and tT me rip. :e for fitteen ed as extra o iicers knew r. hat at that iin:-- ; good or bad." The majority l - ■f the district ':< ating their reaS' "The court in e : ■i Roberts' incon:, ■flicted upcnt the ~e company woi. ■-ncy, pr :!-y diHge; -'nducior was in cha; ol of the plaintiff. "The majority of this reposition of this ■ 'id requires a r. ■riously affected ' Justice Hunter e majority, which a: The p>oints of law ii. e latter part of the ' e will state the quesi First : Was there a r " ' have at! ' of the i 'ctor? If noi, was i iiv;-. sncli ;-i ■; (ii iiisi! couuucb>' r know, or by the use 'in that the incompetent that under the con- •ion that thi jurv !f int as a brakem; s was reckless hat hf^. R'->bt^r^c or the 6o4 TEXAS & FA MSON. pi- :;;iat at condi: \^ as engaged in train going wes second day of "^ ■ i - conducto water, and > to leave the : the rear by a tion of the ^"i Roberts one •f takuu;- ricn was jnh ■ cond ser- sertinn was ine C. S. lie did not g' ^'"berts was ■1 >t know was to the u*^" IS trani soni' \ the train, the ei; i'i < I'.nt' are UpOi i i,'-' a^;.i; ; An extra co) nnd before the a> >,r.n; ':.. ' r 'uA -. ent conductr div' up..' this sonii i "Liic lesciiiiony ( general reputat liy acquainted. ■ rted issue in i..-. ....^. . laintiflF's injury was caus Oi Robt ' ing to have i >vhe n I'le ran into the iiv.> round by :i 17 was rain that - 4" 4-1, Roberts wa-^ endant as ii ' the position y the defend 'IS when thev u^ht be called ir conductor T)laintiff, ai i ed extr, ... any time, iiad not been -^ reckless. A as Rob- ;t on the; . . engaged, clied to show ■ rts were per odge then v ; and reckless- t'le train, in fail.- iefendant's rules. employer's liability. 605 "9. We find that, at the time Roberts was placed in charge of the second section of train 17, the division superintendent of de- fendant, who had control over the appointment and discharge of conductors and trainmen on that division of defendant's road, knew that Roberts was a reckless conductor, and had known it for at least a month, and had only a month or two previous thereto investigated charges against him for recklessly running into the caboose of a train at Coal Mine station, and found him guilty, and suspended him from service for fifteen days ; but we also find that at the time he was ap- pointed as extra conductor, in May, 1890, neither the defendant nor its officers knew of his incompetency or recklessness as a conductor, and that at that time he had made no reputation as a conductor, either good or bad." The majority of the court of civil appeals held that the judgment of the district court should be reversed and the cause remanded, stating their reasons for such conclusion in the following language : "The court in effect charged that if the defendant, with knowledge of Roberts' incompetency, retained him in its service, and the injury inflicted upon the plaintiff was brought al>out by that incompetency, the company would be liable, even though the plaintiff knew of such incompetency, provided he did not further know, or by the use of ordinary diligence, was unable to ascertain that the incompetent conductor was in charge of the train following that under the con- trol of the plaintiff. "The majority of this court are of opinion that the concluding proposition of this instruction is erroneous ; that it vitiates the charge and requires a reversal of the judgment, as in all probability it seriously affected the verdict of the jury." Justice Hunter of the said court dissented from the opinion of the majority, which dissent has been certified to this court. The points of law involved in the certificate of dissent arise upon the latter part of the charge as quoted above, and for convenience we will state the questions as follows : First: Was there any evidence before the jury in this case which would have authorized them to find that before the accident Johnson knew of the recklessness and incompetency of Roberts as a con- ductor? If not, was there error in the charge of the court, if it be error, such as to justify a reversal of the judgment of the district court ? Second : If Johnson knew that C. S. Roberts was employed by appellant as a brakeman and also as extra conductor, and knew that Roberts was reckless and incompetent as a conductor, but did not know that he, Roberts, was to go on the road as conductor that night, did Johnson assume the risk of injury which might occur from the incompetency' of Roberts as conductor in case he should be put in charge of the train which was to follow Johnson's train ? There is no question that Roberts, the fellow-servant from whose 6o6 DUTIES OF PRINCIPAL TO AGENT. negligence the injury occurred, was incompetent and unsafe as con- ductor, and that the railroad company knew the fact when it sent him on this trip, and it must be held liable to Johnson for the injury received by him in the discharge of the duties of his employ- ment b}' reason of the negligence of Roberts while performing his duties as an employe of the railroad company, unless it has been proved that Johnson knew of the unfitness and reckless character of Roberts before the accident. Railway v. Mussette, 86 Tex. 720; Railway v. Farmer, 73 Tex. 88 ; Beach on Contributor}^ Negligence, §§ 127, 128. Mr. Beach, in his work referred to, in § 127, uses this language: "The responsibility of a master to each of his servants for the com- petency and fitness of the other servants he employs to work with him is in every way analogous to the duty he owes them in regard to the machinery and all the other instrumentalities he furnishes for the performance of the work." The servant is not required to investi- gate as to the condition of the machinery furnished to him, nor is he required to examine into the character of the servants employed to work with him ; but he may, and generally must, act upon the as- sumption that the master has performed his duty in selecting and retaining such servants. McKinney on Fellow-Servants, § 95 ; Roll- ing Stock Co. V. Wilder, 116 111. 100; Railway v. Meyers, 55 Tex. 114. In Railway v. McNamara, 59 Tex. 258, in which the injury was caused by defect of the track, the injured party being a brakeman upon the train, the court said : "The master is chargeable with knowl- edge which he might have acquired by the exercise of due care, the same as if he actually possessed it, whereas the servant has the right to assume that all necessary examinations have been made by the master, and is not required, either in person or by another em- ployed by him for the purpose, to- examine the machinery as to fitness and sufficiency." In another part of the same opinion, after speaking of the duty of the master to keep the track in good order and the diligence required of the employe, the court said : "The law requires no such extraordinary vigilance and care of servants, nor charges them with knowledge of facts which they could have learned only by their exercise." It is claimed that Johnson had equal opportunity with the rail- road company to know the character of Roberts, and for that reason he cannot recover. This claim is based upon the testimony of Roberts' general reputation among the employes of the defendant engaged in service with him. In order to charge the railroad com- pany with notice of Roberts' unfitness for his work, by proving that it might have known of such fact if it had used ordinary care, the plaintiff proved that the general reputation of Roberts among his fellow-servants was that of a reckless, careless and dangerous con- ductor. This evidence was admissible asfainst the defendant for A,V7 i by jonnsoi iuthori?' • ss and ■•: ihe diiterence .' duties of the ... - the duty of character of its •Its, the ■- ■ ^'— ^•"^-■- ompan}- ' ^er oi c. y a me^ • ter of ■ : prove I "r, and •1 siich rw<.i .ide that he ■ ! .:.... the defend: service . railroad co- ;- II _ v.uu notice o) ly proving tl. it Tnii,'ht have kno inarv care, t tiW defendant J employer's liability. 607 the reason that it was under oblig-ation to inquire intO' the character of its servant, Roberts, and its failure to learn of his general reputa- tion among its employes was of itself negligence. Mr. McKimiey, in his work on Fellow-Servants, § 90, says : "Evidence of general reputation is admissible to prove the unfitness of a fellow-servant, and ignorance of such general reputation on the part of the master is itself negligence, in a case in which proper inquiry would have ob- tained the necessary information, and where the duty to inquire was plainly imperative." It was not necessary for Johnson to prove that he did not know of the incompetency of Roberts ; the burden rested upon the defendant to make that proof. Yet, if the evidence intro- duced by Johnson of Roberts' general reputation was such as would have authorized the jury to find that plaintiff knew of Roberts' reck- lessness and unfitness, it would have the same effect as if introduced by the defendant, and no more. In other words, it was incumbent upon the defendant in that case to show Johnson's knowledge of Roberts' character, unless it appeared from the testimony offered by Johnson himself. The difference in the effect of general reputation upon the rights and duties of the railroad company and Johnson lies in this, that, it being the duty of the former to inform itself of the character of its servants, the proof of general bad reputation fixed the liability of the company without proving knowledge of the reputation or of the character of the servant, but. as to the servant Johnson, the proof was simply a means b}' which it might be shown that he knew of the character of Roberts as a conductor. The general reputation might be proved in order to show this knowledge, but it must go further, and either show that he knew of that reputation, or place him in such relation thereto by his surroundings that a jury could conclude that he did know of the fact. For example, if the proof had shown that the reputation of Roberts had been discussed in the presence of Johnson, under such circumstances as that a man with ordinary sense of hearing must have heard the conversation, then the jury might conclude that he did hear it, and that he knew of such reputation, but this would simply be a matter of proof upon the issue of knowledge of character of Roberts. In order to entitle the de- fendant to have the judgment reversed in this case, the testimony must be such that the jury could, in the proper exercise of their functions, have found that Johnson knew of the recklessness of Roberts, and, if it falls short of this measure of certainty, then it is insufficient to authorize the court to reverse on account of the charge in question. It would be absurd to say that Johnson might prove the general reputation of Roberts as a conductor in order to fix liability on the part of the railroad company, but that, having made this proof, he is chargeable with notice of that g^eneral reputation to the same ex- tent as the defendant, and therefore could not recover. This would 6o8 DUTIES OF PRINCIPAL TO AGENT. make the evidence of his right to recover destructive of the very cause of action that it was introduced to sustain. The facts show that Johnson did not know of the reputation of Roberts, nor of his reckless character, and the proof which was in- troduced as shown by the conclusions of fact found by the court of civil appeals, was not sufficient to justify the jury in finding- that Johnson had such knowledge. We answer the first question, that there was no evidence which authorized the court to submit a charge to the jury upon the hy- pothesis that Johnson knew of Roberts' reckless character as a con- ductor. It did not matter whether Johnson knew that Roberts would follow him on the train that night or not ; for, if he knew that Rob- erts was to act as conductor upon the second section of that train, it not appearing from the evidence that Johnson knew of Roberts' reckless character, no other verdict could have been rendered under the evidence than that v^^hich was rendered by the jury. If, there- fore, it be conceded that the court erred in that part of the charge which informed the jury that Johnson could recover if he did not know that Roberts was tO' follow him on that night, it was an im- material error, and did not justify a reversal of the judgment of the district court. Our conclusion upon this question renders it unnecessary to con- sider the second question ; for the reason stated, that the matter em- braced therein becomes immaterial by the decision of the question herein considered. We therefore make no answer to the second ques- tion embraced in the certificate of dissent.^ BAULEC V. NEW YORK & HARLEM RAILROAD COM- PANY. 1874. Court of Appeals of New York. 59 N. Y. 356. Appeal from judgment of the general term of the supreme court in the third judicial department, affirming a judgment in favor of de- fendant entered upon an order nonsuiting plaintiff upon trial at circuit. This action was brought to recover damages for the alleged neg- ligent causing of the death of Thomas Hammond, plaintiff's in- testate. Said Hammond was, at the time of his death, in the employ of de- fendant as a fireman upon a locomotive running upon its road. The accident occurred at a junction of defendant's road with the New * Regarding constructive notice to master of servant's incompetence see Chi- cago, etc., R. R. Co. V. Doyle, 18 Kan. 58. ^ & ^h : ,- nee was ofie- ence on rt. LEN, J. — Ru'' 'le f'^ro'^d bpfore this act: i-e- d as too ' :; -- be now que- c selection o: 'ains in his sc v. B. & A. R. R. '. 562 ; Tarrant v. • :l. & El. i02.) Ther. 39— Rei>. 6o8 'he evKK ; ' if action u. facts show ivobciis. nor O'" tr.-'duced as. sh of civil appeal:- Johnson had s We answer authorized the ■ pothesis that I' ; ditctor. J I follow hiv erts \A : ' not :i ' f the ve ' did nol itation ■ •\as in- court "r that , that there wa- ■nee which a charp' < +'- "^n the hy- ivoberts' r as a con- v-r Johns ' erts would ,!it or no that Rob- •n the s( . ir that train, it ce that . . vv of Roberts' '>ict could \r.i\ rendered under ts rendered — . If. there- nrt erred in ihe charge Johnson coiilu r< le did not :w him on that n as an im- ' wersal ol ihe j.udg^nent , . ' ;i render ry to con- ]:<: reason st: • matter env- ■rial by the ■ •if the quest; : make n; "- '■■■' -econd qii- ■f diss en.: .11 lis action was MTcn'" riu^incr of H^RT > rr\M. -874- Co. '■ 3.0- .; \; I r.'. '-. I i I 'in I .1 in the third judicial it entered ui in. favor of < (jn trial fendant as a fireman upon a ioc- accident occurred at a junctior ^ Regarding constructive notir '- ■ago, etc., R. R. Co. v. Doyle, i ■ employ . . its road. 1 with the N' .,-,„j.^por- ".("^ r employer's liability. 609 York and New Haven road, and, as the evidence tended to show, was occasioned by the neghgence of defendant's switchman at that point, one jNIcGerty, who, after the passage of the New Haven train, changed the signal so that it indicated that the switch was right for the Harlem train without changing the switch. Plaintiff ofifered evidence upon the trial that some six or seven months before this accident a New Haven freight train met with a similar accident at this same switch. This evidence was objected to and received under objection. The proof as to the former accident left the question in doubt whether it was chargeable to AIcGerty or to the engineer upon the train. It was a dark night. The tracks of the two roads ran parallel for some distance. McGerty had set the switch for the New Haven road. It did not appear that the bell upon the engine of the New Haven train was rung or its whistle sounded. McGerty not hearing it supposed it was a special on the Harlem road and changed the switch and the train ran olT. It appeared that the general agent of the road having authority to employ and discharge switchmen investigated the occurrence, and after evidence of the facts continued AIcGerty in his position. It appeared, also, that he had been in the employ of the defendant for eight or nine years ; had been switchman at this point some eighteen or twenty months, and at another post about five months. No other evidence was offered of any want of competenc}^ or of negligence on his part. Allen, J. — But a single question is presented by the record before us in this action. It is conceded, or if not conceded it must be re- garded as too firmly established as well upon principal as by author- ity to be now questioned, that if a master is wanting in proper care in the selection of servants, and negligently or knowinglv emplovs or retains in his service those who are incompetent and unfit for the duties to which they are assigned, he is liable to respond to other employes and servants engaged in the same service, who may sustain damage by reason of such incompetency and imfitness. And when the master is a corporation, necessarily acting by and through agents, the acts of its general agents charged with the employment and discharge of servants, in the performance of that duty, must be regarded as its acts. The corporation should be regarded as con- structively present in all acts performed by its general agents within the scope and range of their ordinary employment. It is equally well settled that when reasonable precautions and efforts to procure safe and skilful servants are used, and without fault one is employed through whose incompetency damage occurs to a fellow-servant, the master is not liable. (Laning v. N. Y. C. R. R. Co., 49 N. Y. 521 ; Flike v. B. & A. R. R. Co., 53 id. 549 ; Wright v. N. Y. C. R. R. Co., 25 id. 562; Tarrant v. Webb, 18 C. B. 797; Ormond v. Holland, El., Bl. & El. 102.) There is nothing in the case to justify the impu- 39 — Reinhard Cases. 6lO DUTIES OF PRINCIPAL TO AGENT. tation of a want of care in the first or original employment of Mc- Gerty, the switchman, by whose want of care and neglect of duty, as is charged, the injury was occasioned to the deceased, resultinig in his death. The complaint is that he was retained in the service of the defendant, and in the same capacity as a switchman, after he had shown himself unfitted for the position and unsafe to be trusted in it. Proof was given of a single occurrence in respect to which it was claimed an accident similar to that which resulted in the death of the deceased was occasioned by his neglig"ence and carelessness, and that knowledge of the facts was brought home to the general agents of the defendant. When as here the general fitness and capacity of a servant is involved, the prior acts and conduct of such servant on specific occasions may be given in evidence with proof that the principal had knowledge of such acts. The cases in which evidence of other acts of misconduct or neglect of servants or employes, whose acts and omissions of duty are the subject of investigation, have been held incompetent, have been those in which it has been sought to prove a culpable neglect of duty on a particular occasion, by showing similar acts of negligence on other occasions. This class of cases does not bear upon the case in hand, and may be laid out of view. Proof of specific acts of negligence of a servant or agent on one or more occasions, does not tend to prove negligence on the par- ticular occasion which is the subject of inquiry. When character as distinguished from reputation is the subject of investigation, spe- cific acts tend to exhibit and bring to light the peculiar qualities of the man, and indicate his adaptation, or want of adaptation to any position, or fitness or unfitness for a particular duty or trust. It is by many or by a series of acts that individuals acquire a general reputation and by which their characters are known and described, and the actual qualities, the true characteristics of individuals, those qualities and characteristics which would or should influence and con- trol in the selection of agents for positions of trust and responsibility, are learned and known. A principal would be without excuse should he employ for a responsible position, on the proper performance of the duties of which the lives of others might depend, one known to him as having the reputation of being an intemperate, imprudent, indolent, or careless man. He would be held liable to the fellow- servants of the employe for any injury resulting from the deficiencies and defects imputed to the individual by public opinion and general report. Still more should he be chargeable if he had knowledge of specific acts showing that he possessed characteristics incompatible with the duties assigned him and which might expose his fellow- servants and others to peril, and harm. Frazier v. Pennsylvania R. Co. (38 Penn. St. 104), is adverse to these views. There evidence was admitted over the objection of the defendant, of repeated acts of negligence of the conductor (by whose carelessness the plaintifif, a brakeman on the train, was injured), resulting in collisions before n, and ti - 1 •- "vv.a by v-''> ,._,, ;,c ■,■ ■ ie to investii; reputation ■an be i;; ■ ■ ■ .j-, . :i been ; -t. on. Xeg'., § 238, ai! & r. "R. Co. V. Rub} k, J. The ! think tV'f^ ' ig that '. uiu- '.are, prm; ine in service, ':t its roa otice 0' ence or -e cited c:- s and want I- :IV causing a ■; nit; |)'.ii.r' i. .3 proved to haA s^ly and neg-ligrently ^uiily ot -4' .' oruer?. ii :) station ior ie^-nnlhir ;e on after he ' jo stances the i • crson for ti' obegiv. tor. in ;ts not .diet \va. a verdict for the pk inrlt tlip In-;) vrri'!.- - y care., u; ci!-.' having respect • e consequences ti r care in the pe. such care and c;i nnpetent, or in ir -s come to otherir ■poration must air^ . ■ . ing a servant incompetei- 1 nere is no impeachment tation of a want of car. the switchman, 1- ;"ed, the injury • th. The conn ' ! int, and in ! >ii<>svn himself r I 'loof was givt claimed an acc' the deceased w that knowledge of the defendav a servant is in\ < SJifOiflC OCi principal h: I >f other ac ■s\-hose acts ;:;;\e be€n ' ilrst or origi qualities an' trol in the sc. are learned and he empV the du;, him as ii^ving indolent, or car servants of the and defects imp.; . report. Still more spi -■<■ - -^ ..!l i -. upon this triril ^ ent and f the defen'.i aouut J or the fault ■ or the .eer in cl ^1'. is no ev: ■ e ■ ich of his tra: ■ ■^^^e service n ' 'liman he... ' h ol the train by : reasonably, in + hupposen t signal \ e causing- tiM v»>ncluston that • a negligent or ■: \ ; .ible mail i.^,; visedly and '. .1 carelessness a act in a man a 'i€ no imputation -onable care cou- lining him. justify a recovei 'uust be inferred ;)nd fitness of . occurrence, , . :.ot contended due care in his or' lie was competent was during- all the temperate, att' cessfully perfi : ception referrc service of the years, had ser . point at whic'- months before the track ! the plaint' or mi prior .vitchrK iCb, ca:c!ul' required d ': of the ififerent over a } • iitestate rred to, j faithful service 1 * -^L. and is not vi*- r incompetent i e or act of ' ree of canti'^ : must b<' (lef'j;- . . circuni.-L. son for a act is int or malicio; may conclusively inabihty to perfoD neglect does not, p prudent, :. '. ' ■- '' vJuiractei not b}' a sourd the ' not tend to .any. The co those who have a. cations called for u . i:,v. ;...., that a gfood character acauire seriot' (Mu., proof of a :i questii ' -r^rcise . . cd that It, and .. sober, ;d suc- j;-le ex- Ijcen in the lit or nine ear the V ^1 seven ':rown from • narge, which .nt of attention, ry upon the Mic defend- :d with ...ce. An asclf trust- '■ further •id not i omis- i mind, iiuiu beii _ L>rgetfuln. ail employes ■ "e from i inder so . and unfit p ■ as wh.en s\ v: actor and . Je act of casu areless and r ' ■" ' pruden' >f acts, a; ion omit it such i,' \'ant of t ± employ ii I to the qua!: one wor^ ' IS destr' :tentionai i^l.. appeal does :;■ 4 employer's liability. 613 necessarily depend upon the correctness of this view of the effect to be given to a single instance of neglect. All that the corporation defendant was bound to do, after the occurrence, was to inquire into it, and ascertain the facts, and act in the discharge or retention of the switchman with reference to the facts as ascertained, as reasonable prudence and care should dictate, and if such care and caution was exercised, the company is not liable, although its general agent erred in judgment in retaining" the switchman in the same service. Or- dinary care and a reasonable exercise of discretion and judg^iient is all that is necessary to absolve the corporation from the charge of neglect or duty in such a case. The transaction upon which stress is laid, and by force of which it is now sought to charge the defendant with the consequences of the servant's neglect on this occasion, and the ag'ency of the switchman in causing the accident on that ocasion was investigated immediately thereafter by the agent of the defendant whose general duties in- cluded such investigation, and who was authorized to employ and discharge switchmen at that point. He had the statement of the switchman himself and in this record we have his sworn statement of the same transaction, and assuming as we must that the facts dis- closed upon this trial were made known to the agent and representa- tive of the defendant, then it was certainly a question of doubt whether the fault of that accident was upon the switchman or the engineer in charge of the train that was thrown from the track. There is no evidence that he rang the bell or gave other signal of the approach of his train as he was bound to do b}' the rules of the road, and of the service upon a train going south on the New Haven track. The switchman heard no signal and only learning of the near ap- proach of the train by the noise made by the running of the train he might reasonably, in the hurry and haste incident to the occasion, have supposed that it was an extra upon the Harlem track, which did not signal when going south, and thus be innocently led into the mistake causing the accident. The corporation might well come to the conclusion that the misplacing of the switch on that occasion was not a negligent or careless act on the part of the switch tender. And if a reasonable man might infer that the switchman was careless, or acted unadvisedly and without proper caution, it does not follow that general carelessness and imprudence can be inferred from this single act in a man as to whose conduct on other occasions there could be no imputation of negligence or inattention, or that a want of reasonable care could be inferred on the part of the corporation in retaining him. To justify a recovery by the plaintiff from this single instance there must be inferred not only the carelessness as a characteristic of the switchman and his consequent unfitness for that particular service, but the want of due care in the corporation in investigating 6l4 DUTIES OF PRINCIPAL TO AGENT. the occurrence and determining upon the retention of the man. The corporation did not guarantee the absohite fitness of their servants and agents for their respective employments, and is only responsible for some fault in employing, or continuing them in its service. The question in this case was, whether the single occurrence detailed by the witness, in connection with other circumstances and with his general character and conduct, was such as to make it necessary for the defendant in the exercise of proper care and prudence, such as the law enjoins, to discharge this switchman. I am clearly of opinion that there was not sufficient evidence to carry the case to the jury. A verdict against the defendant based upon this evidence would have been against evidence, and such being the case it was the duty of the court to nonsuit. This case as reported upon a former trial (5 Lansing 436), and the decision there made, is quoted with apparent approval by Mr. Wharton in his recent treatise on the law of negligence, and the principle there decided makes a part of the text of section 238 of that work. It is not enough to authorize the submis- sion of a question, as one of fact, to a jury, that there is "some evi- dence. A scintilla of evidence, or a mere surmise that there may have been negligence on the part of the defendants, would not justify the judge in leaving the case to the jury." (Per Williams, J., in Toomey v. Railway Co., 3 C. B. [N. S.] 146.) The same learned justice adds that every person who has had any experience in courts of justice knows very well that a case of this sort against a railway company could only be submitted to a jury with one result. In an- other case it is held that a judge will not be justified in leaving the case to the jury when the plaintiff's evidence is equally consistent with the absence as with the existence of negligence in the defend- ant. In such case the party affirming negligence has altogether failed to establish it. and Earle, C. J., says, "that is a rule which ought never to be lost sight of." (Cotton v. Wood, 8 C. B. [N. S.] 568.) This rule applied to this case leads to an affirmance of the judgment for it cannot be denied that the evidence is as consistent with the idea that the defendant did carefully investigate the oc- currence of which evidence was given, and with proper prudence and in the exercise of due care continue McGerty in its employ, as that they were negligent in the performance of that duty and carelessly or imprudently retained him with knowledge that he was not a proper man for the position. At most the jury could only conjecture that the defendant might have been wanting in the care and caution proper to be exercised in such a case, and if so the case was properly withheld from the jury. (Avery v. Bowden, 6 E. & B., 973, 974; McMahon v. Lennard, 6 H. of L. Cases, 970, 993.) I am of the opinion that the plaintiff was rightfully nonsuited, and that the judgment should be affirmed. •pt roU' (1 bv pi: at Kq_n V or iiiiuif ' 'T defej. See Laning \ ..AM V .' i 1 1 '. : 1 '. ! a : •t one of the freis:ht .11^ UC: -s then i . so employi: . cep aWay aiv v ... , lid side-track 'jrder ai pon said sia •r -1 (>; .1 w; ;he witness, ii general c! for the i^-; as Hi. llMUlf The led by 'ih his clearly case to i ■s evider . it was ' ■ .•>. fori; ocideci ;• A the u ■ .,-.-,m.t1'. •;,. .,,1>- of the < ho iias 1 I rri';!- <.■ "vVlLil 1 ant. failed C'ughr , 568.) Th. jiKlg-ment 1".., with the idea allv consistv imance ot i ■^s consist'. te the ' man 10 ■ . . .:c defentl p -oper to be exerci ■''-'' *^rom the V. Lenn; 1 au; or thc and that the ju xiiiy conjecxr .T ill I rm s ' ^ It is • Mtiff that no .e set out as reqni 'pany, but th vidence temi ing to i > knowledge w,. - rule ha^ been ad ;ce, however, ter Mrove th r„j|,i _ '.luion, and the ^ • -u the cau.^ •:culty,.is whether md the fore \v serv^ants. If they '. and th' . the .alter ego of t'. ny in th- 's of this action, absolve lid rule by the p; : . .. . Lau foreman his safety. Appellant's counsel say tha mine who are fe"' - vants is we rk on INTaster an. , at page S6' . the perforn- .mpliedly con iracced , ■>r which re ^im as an absolut duty, he - i>"i- in whicli is performed b the middle i xted as i and to the exter. of the disci 1 ' y the mi •, he stands in th place of the .'1 other he is a mere co servant." The bject, n 1 the books, ar numerous and 1 it wo!, ' endless task t review, and utt-. . ;npt to n. ' i. Whether the i _ case. h:i )t authority t. employ and disn wairers, by determines his re lation to the ph- lime the ' '"Med. It is a.^ serted in some c / lat it is ; uration migii adopt a by-law, ' very ofi' pany the author ity to employ a, hands, ■ : the board of d rectors, still leax '■roper c itrol and directio of the work the engaged , This would m constitute the t- ;er, or other ^^eneral officer, a fellow servant of all tb ,. ,,cd in his '^^ - nent of the service ' the law were otl; 1 railroad CO f would escape h..: to its servants case, unless : .;: -uid be proved that u. directors had r . , employed the servant whose negligenc VICE-PRINCIPAL DOCTRINE. 617 occasioned the injury, or retained him in the service after learning his unfitness. If we may venture a general proposition on the sub- ject, it is, that all are fellow-servants who are engaged in the prose- cution of the same common work, leaving no dependence upon or relation to each other, except as co-laborers without rank, under the direction and management of the master himself, or of some servant placed by the master over them. If a person employs another to per- form a duty which he w'ould have to discharge if another were not employed to do it for him, such employe, as to that service, stands in the master's stead, with relation to other persons. A railroad cor- poration impliedly contracts, not only to furnish suitable machinery and appliances for its employes to operate and work with, but to keep them in repair, and the latter duty stands upon no different ground than does its obligation to furnish suitable machinery, in the first instance. When he whose duty it is, as representative of the company, to inspect the machinery, sends any of it to the shop for repair, the company is at once chargeable with notice of its condition, and the foreman, in having it repaired for use, is in the line of his duty. It is true the company was under no obligation to the plaintiff to have the car in question repaired at all. It owed no duty to any one, except servants who were to use it, or passengers or shippers of freight in that car, to repair it, but the repair of the car was the company's business, if undertaken at all. The company being a cor- poration, could not be actually present, either to make or direct re- pairs, but, having ordered its repair, it had to be represented by some one or more to do the work, and by some one to determine where, how and when it should be repaired. The person who had control of the work, and of the men engaged in it, directing how, when and where it should be done, represented, in those matters, the company itself. It was the duty, a contractual obligation, of the company to provide for the safety of the men at work in repairing the car. The company devolved that duty upon the person who represented it in conducting, ordering and managing the work, and the men engaged in it. It could not impose that duty upon the car repairers, so as to absolve itself from liability for its own negligence. It might make, as it did, reasonable rules, and impose the duty upon the servants to observe those rules, for their own safety, but could not impose upon them the entire duty of protecting themselves. The foreman, in what he had to do for the company, did not represent himself. Ex- cept as the agent of the company, he had no interest in the repair ordered. He did none of the manual labor in repairing the car, but, for the company, gave such orders and directions to the car repairers as he thought proper. That the foreman was an inferior servant to Buck, who had a general control and management of car repairs everywhere along the line of the road, does not determine that the foreman was a fellow-servant of plaintiff. 6l8 DUTIES OF PRINCIPAL TO AGENT. In some of the cases and text books the rule is announced that, where a master has committed the entire control and management of his business to another, reserving no discretion or control to himself, the person to whom such power is delegated stands in the place of the master, so that his acts are in law the acts of the master. Such authority to an agent woidd certainly constitute him the alter ego of the principal, but it is not true that, because the master has reserved, either to himself or some superior agent, some control over the inferior agent, the latter cannot stand in the place of the master. Strictly speaking, all servants from the general manager, down through all the grades of the service, to a brakeman, are engaged in the common work of running trains of cars, and it is only when one of these servants is placed "by the master in his stead to discharge some duty which the master owes to the servant," that he ceases to be the fellow-servant of the others, and becomes the representative of the master. Every spike driven into a cross-tie is driven with reference to the running of trains over the road, and the man who wields the sledge to drive it, is, in some sense, a fellow-servant of every one employed by the company whose services are necessary to the running of trains. Says Mr. Wood : "The instances are rare in which the master, either by himself, or some superior servant, does not reserve some supervision over every department of his business, or, at least, reserve such a right to himself." Sec. 438. Buck, the general superintendent of car repairs, was not a fellow- servant of plaintiff, and could not have been so regarded if he, in- stead of Kestler, had been present and given the order, and made the alleged promise to protect plaintiff in obeying that order. And if, by authority of the company, Kestler was placed there to do what fell in the line of Buck's duty, did he not, in respect to that matter, stand in the same relation to the company as Buck himself? And if Buck had personally done what it is alleged Kestler did, could the company have successfully defended the action on the ground that Buck and plaintiff were fellow-servants? We recognize the prin- ciple that one may act in the dual character of a representative of the master, and as a fellow-servant. If it had been the duty of the fore- man, in this case, to assist, when necessary, in the manual work of repairing the car, in addition to the other duties of superintending, controlling, and directing such work, and he had gone under the car with plaintiff to assist in repairing it, and by some negligent or un- skilful act, while so engaged, injured the plaintiff, the latter could not have recovered without proof of facts which entitle one to re- cover when injured in consequence of the negligence or unskilful- ness of a fellow-servant. Under the circumstances proved in this case, we think that plaintiff and Kestler were not fellow-servants. The defendant's refused instructions asserted the following gen- eral propositions, viz., that although plaintiff and Kestler were not fellow-servants, Kestler was not authorized by the company to make .. h-pRiNCir lise alk by the com]^ ■ the me.' 'Iv. in a in the parti(. nise to mc pi ;•, ana undertook i:pUy dor --- being t! _ while engaged in its ■ as to the employmen -m agent, will the lav> id by having n ;rT-r '-'^^sonable tion, ail ne judgment is aitin \v^; nf t book? iced tha^ ■■ement < > himsel place < tiic ijn-; eitht^r inferior ai of the&t some d be tlie all by riuii fell in star Cipie that one ic . master, and as a roan, in this cas ■1 gaged •r -.•!. V.M .>. when Oi. e master in discharp ■ to the ceases t rs, and ientati> into a V •r th'^ r Wood: "T' re rare i :.!iii-.elf, or £.' — ant, doc over every busine^ : repairs, was not a fellov, i not have been so regarded if he, ii' -'■■nt and giv'^ 1 Hir nrder, and made tl itf in ol stler Wt :i he no: t order. And i there to do whr ct to that matte 1 ■ • A{? Av. could t). ' gtound th: "'ze the pri]- \ve of tb .' the fon ' work <> :ov€red .. . , .,,.-.,, injiT-'" ' riess of a fellov :r.^e, we thir.'- ' The defei entitie one to n. nee or unskilful es proved in thi ilow-servants. ie following ger. VICE-PRINCIPAL DOCTRINE. 619 the promise alleged to protect plaintiff while under the car, and that notwithstanding such promise, yet plaintiff could not recover if he failed to set out the red flag, as required by the rule, or to set some one to watch for the approach of engines and trains. It being con- ceded, as it must be, that the company owed a duty to the men under the car to provide for their safety, can it be that the foreman had no authority in an emergency to use any other means than those adopted by the company ? That the red flags, and nothing but the red flags, was the means he was to employ? If for any reason that would clearly, in a given case, have been insufficient as a warning, can it be possible that the foreman would be restricted to the use of the red flags ? Or if, in such case, he had had the red flag set up, and one of the men was injured in consequence of its insufficiency to give the warning, that the company would not be liable to the injured party? Has it discharged its duty by simply adopting a means of protection ordinarily sufficient, when the person in charge of the work knows that in the particular case it is not a sufficient warning? If the fore- man has authority in such an emergency, that authority results from his general authority to perform the duty of the company, in pro- tecting the employes under his control, in the performance of a dan- gerous work for the company, and he was authorized to make the promise to the plaintiff for the company, and undertook to set out the red flags in his possession, or to adopt any other means necessary to secure the safety of the men, thereby absolving them from the duty of setting out the flag, or setting the watch. As to the latter, there was no proof of a rule requiring one man to watch while the others worked ; and it was in proof that while the work in question could possibly have been done by one man, it could not be conveniently or promptly done by less than two. It being the duty of the company to provide for the safety of men while engaged in its dangerous service, if it delegates such authority as to the employment of men, and their control and management to an agent, will the law, in the absence of an express stipulation to that eft'ect. declare that such agent is under no obligation, and has no power, as the representative of the company, to provide means for the safety of servants whom he sends into a place of danger to work? If so, the duty of the company to provide such security may be easily evaded by having no one on hand to perform it. And by simply adopting reasonable rules, the observance of which will ordinarily afford protection, although in a given instance the observance of such regulations would afford no protection whatever, and the per- son representing the company in the direction of the work and the control of the hands, knew the fact. Such abdication of duty can certainly find no support, either in reason or authority. The judgment is affirmed. All concur.^ ^ See discussion of distinction between fellow-servant and vice-principal in Anderson v. Bennett, 16 Ore. 515. 620 DUTIES OF PRINCIPAL TO AGENT. DOBBIN V. RICHMOND AND DANVILLE RAILROAD COMPANY. 1879. Supreme Court of North Carolina. 81 N. C. 446. Civil action for damages tried at Spring Term, 1879, of Rowan Superior Court, before Schenk, J. The plaintiff alleged that he was employed by the defendant com- pany as a train hand, under the control and management of one T. W. Lowrie, an employe and superintendent of the company, and by the direction of said Lowrie, he was engaged in digging gravel, when by the negligence of the defendant's employe, a bank of dirt and gravel fell in upon the plaintiff, whereby he was greatly injured, having his leg broken and being permanently disabled from perform- ing any actual work. The defendant denied the allegations of the complaint and alleged that the injury was caused by plaintiff's own negligence ; and that its employes and servants on the material train under said Lowrie were men of ordinary skill and care ; and if plain- tiff was injured by the negligence of defendant's employes, superin- tendent, or servants, the defendant is in no way responsible therefor. The facts set out in the statement of the case are substantially em- bodied in the opinion delivered by Mr. Justice Ashe, and upon them the court below held that the plaintiff could not recover on the ground that Lowrie was a mere fellow-servant of the plaintiff. Upon this intimation the plaintiff submitted to a judgment of non- suit and appealed. And it was agreed if this court reverse the decision below, no final judgment is to be given, but only judgment setting aside the nonsuit. Ashe, J. — This is an action brought by the plaintiff against the de- fendant to recover damages for an injury to his person resulting from the negligence of the defendant. The defendant in the answer denied the allegations of the complaint, and for a further defense insisted that if the plaintiff was injured by the negligence of defend- ant's employes, superintendent or servants, the defendant was not responsible for the injury received. The case was submitted to a jury for trial, and the evidence pro- duced disclosed the facts, that the plaintiff was employed as a train- hand and laborer, and at the time of the injury was engaged in dig- ging gravel under the direction of one T. W. Lowrie, and that said Lowrie was engineer, superintendent, conductor and master of the gravel and material train of the defendant, whose business it was to employ and discharge hands connected with the business for which the gravel train was used ; also, that he had entire charge of this branch of business on his section of the railroad, known as that of digging gravel, putting the same upon the track, digging ditches and repairing the same ; and also repairing culverts, etc. After hearing this evidence, his Honor expressed the opinion that it? con I ft ;he lis statv. ). the relati ed bv the cc uieir 11 u ■_-ntiy vc , ^-servants or .. t it is difficult u- .J . ase in the future as h ..articular facts. Where the relation ;-t, it is ■■ rities, a: r is not res,. ,ii'.d by the nc,. usiness or empi nized by '' And tb . c undertakes, ■..- isks of the servlv ■ cllow-servants, a. immon master, ; L^ut he does not : V , — - -rence of ;: !e his SiV.v been :: vanes occa- ... in the same so universally ; -neral rule of es to serve. ads, direct i, _. they perfoni' ie must have en' ■■■ ■"^"'-^- ■■'■'ids ai.M -. is, etc. lority of and to ^eiit is what is k .••r is the scrsant t borer in furthei ot a "fellow-ser^ s, because he re- ol and managfe Uic i.i i facit per alitivi" applies. ^:;20 ^aCHIV; (^OAD 4 CiViL action i ■; ; .perior Court, ihe plaintiff ■< pany as a train W. Lowrie, an the directio when by Ll^ and gra having ' ing any selii,...^ ........ Ashe, J.- fendant to frniTi the no Spring 1 . s employed ! ol and r. •ndent oi was engagi -fendant's ei' :T, whereby i crmanently d.i>d.i idant denied the jury wa;- and sei \ if Rowan :.int com ■f one 1 . . , and b> >.; grave! •v of dir: . injurefi. perfornj IS of tlN ift's OW' iial trail. 'linary skill una cure ; and if plain of defendant's en: •]..'. es, superin L is in no way re therefor nt of the case arv 'ally em- Mr. Justice Asl- .-on them iaintiff could not recover on tht ■' tellow-servr»fi*- of the plaintil: rnent of non 1 reverse thv IS to be given, but only judgment :int. The d< ;;ainst the de •on resultin; T) the answer- ant s employes, servar responsible for t. The case was duced disclosed un hand and laborer, aii !vel under th . one vvas enginee; .'^nt, .m-uei and material i employ and discharj.; ■ . , :: the gravel train wa; Iso, tha; branch of business o,.. .,.,-> .auction of : digging gravel, putting the same upon repairing the same; and also ■' After hearing this evidencr iant was nc the evidence pro ' — ' rs a train d in dig i . \\ . that sai'- ^ondiK .:r of tb less it was v . .:'ess for whic;. re charge of thi: known as that o gging ditches an-: ;j the opinion tlia; VICE-PRINCIPAL DOCTRINE. 621 the plaintiff could not recover, admitting that he was injured by the negligence of said Lowrie, for the reason as he alleged that Lowrie was a mere fellow-servant of the plaintiff. Who is a fellow-servant within the meaning of the law appertain- ing to this subject, is a difficult question, one that has never been de- cided in this state. And so far as we have been able to find, no defi- nition of the relation as a test applicable to all cases, has as yet been adopted by the courts ; and we do not think can be, so variant are the relations subsisting between master and servant, principal and agent, co-laborer and employe, in the various enterprises and employments, with their numerous and divers branches and departments ; the cases frequently verging so closely on the line of demarcation between fellow-servants or co-laborers and what are called "middle men," that it is difficult to decide on which side of the line they fall. Each case in the future as heretofore will have to be determined by its own particular facts. Where the relation of fellow-servants or co-laborers is found to subsist, it is well established by the English as well as American authorities, and is conceded in the argument of this case, that the master is not responsible for an injury to one of his servants occa- sioned by the negligence of a fellow-servant engaged in the same business or employment. This principle has been so universally recognized by the courts, that it may be regarded as a general rule of law. And the reason of the rule is, that where one engages to serve, he undertakes, as between him and his master, to run all the ordinary risks of the service, which includes the risk of the negligence of his fellow-servants, acting in the discharge of his duty as servant of the common master, and engaged in the same common employment. But he does not undertake to incur the risks that may result from the negligence of the master, or such person to whom he may choose to delegate his authority in that branch or department of business in which he is engaged. To impute the negligence of such an agent to the master, he must be more than a mere foreman to oversee a batch of hands, direct their work under the supervision of the master, see that they perform their duty, and in case of dereliction, report them. He must have entire management of the business, such as the right to employ hands and discharge them, and direct their labor, and pur- chase materials, etc. He must be an agent clothed in this respect with the authority of the master, to whom the laborers are put in subordination, and to whom they owe the duty of obedience. Such an agent is what is known as a "middle man," wlio as well as the laborer is the servant of the master, and although he may work with the laborer in furthering the common business of the master, he is yet not a "fellow-servant" in the sense of that term as used by the courts, because he represents the master in his authority to direct, control and manage the business. To such an agency, the maxim of "qui facit per alitim" applies. His acts are the acts of the master ; 622 DUTIES OF PRINCIPAL TO AGENT. his duties, the duties of the master ; and his neglects and omissions, the neglects and omissions of the master. We think this principle clearly deducible from the more recent and most approved adjudications on this subject. In the case of Lanning v. N. Y. Cent. R. R. Co., 49 N. Y. 529, it was held that where the business is of such a nature that it is neces- sarily committed to agents, as in the case of corporations, the prin- cipal is liable for the neglects and omissions of duty of one charged with the selection of other servants, in employing and selecting such servants, and the general conduct of the business committed to his care. To the same effect is Flike v. Boston & Albany R. R. Co., 53 N. Y. 549. In Corcoran v. Holbrok, 59 N. Y. 520, which was the case where an operative had been injured by the falling of an elevator in conse- quence of a defect in the chain by which it was operated, the court held that when the master delegates to one agent the performance of duties which he is bound to perform towards his employes, the agent occupies the place of the master, and he is deemed to be present and is liable for the manner in which they are performed. And in Brothers v. Carter, 53 Mo. 372, where the plaintiff was in- jured by the falling of a bridge, the superintendence of the construc- tion of which had been committed to a head carpenter ; it was held if the master deputes the superintending control of the work, with the power to employ hands and purchase and remove materials, to an agent, then the master acts through the agent, and the agent becomes the master, the duties are the duties of the master, and he cannot evade the responsibilities which are incident and cling to them, by thus delegating to another. In such case the agent repre- sents the master, and though in truth he may be and is a servant, yet in those respects he is not a co-servant, a co-laborer, a co-employe, in the common acceptation of the term. He is an agent and stands instead of the principal, and is not a fellow-servant within the mean- ing of the rule, as applied to laborers or workmen. And again in the case of Brickner v. N. Y. Cent. R. R. Co., 2 Lansing 504, it was held that the corporation cannot act personally. "It requires some person to superintend structures, to purchase and control the running of cars, to employ and discharge men, and pro- vide all needful appliances. This can only be done by agents. When the directors themselves personally act as such agents, they are representatives of the corporation. They are then the executive head or master. Their acts are the acts of the corporation. The duties above described are the duties of the corporation. When these directors appoint some person other than themselves to super- intend and perform all these executive duties for them, then such appointee equally with themselves represents the corporation as master in all these respects ; and though in the performance of these executive duties, he may be and is a servant of the corporation, he is t in those resj^ects ■ immon zccfptnU' ■■" ■ ercises tlic sa;in labor like and his i' may be likened Lo . master, lie exerci^' of servants, in self tools, structures, n use of the other a) five nets, are the !• ■ .ijle that he - .res, m em pi \ and tools, . . na-L'. . , ■;■. . es their or. is the mouth- tnd interpn^ by him. ] . nsible will c Tiit coriX>ra- II spepV arv' ., e acts are their "*. his I ;crol, their control. Vias in ii ., . ,i ,v]vlf. -%! -h.- ■ .-r.. ice of these e ■ or co-serv..: V ; Mullan v. might refer v ' principle \\ ; ;e authoritic-^ cir;. veral of them w nine do not com ■- iieretdfore cited, racuse R. R. Co., i- did not sit, and & Mil. R. R. C lined by a y.r '■ who was a: ice after notice :• favor of the d. •fendant had kni . le case of Tindal' i set of hands w< track. The san the gravel, and ! ed the train through the 622 his li..ltie,^>, the duties the neglects and \Vc think this most approved a. In the case of • was held that wb: savily committecJ v.ipR] is hable fC'' with the sele servants, an. care. To t! . N. Y. 54- In Co' an jpet;. Oiirri.;e And .'id omissions, ■11 ore recent and n this subje ■^'. Cent. R. ..V ■ • D -'':.*> '■ s of such a 1. IS neces .;.: the ' • ■he prin- and om; rhartj-ed is, in en.. cf the L "ioston 6i ' Co., 53 Y. 520, which was the case where the falling of an elevator in conse V which it was operated, the court s to one age ■ formam. : ,n towards \- •■ es, the ; nd he is deemed 10 be present aud ley are perfo; 1 nu!. o. 372, whei intiif was in :e superinten: !' - construc- ■ to a head ; ^vas helo. to an agent. Ui i' insi ing And a Lansing ^t... , "It requires control the 1 vi '.-i ?11 nee head or master, duties above de>^ these directors a] intend and perfoim appointee equally v, master in all these rt executive duties, he r agh tile agem, and the agem ::• duties of the master, and \u which are incident and cling tu oLher. ""'^ -■'■'^ <;ase the agent repre- 1 truth ' and is a servant, yet I co-enipl :;t and sK. ■ . within the mean- inckner v. N. ^ R. R. Co., .:' '-• .-r'.-r>, ,r'ir;. r^ , t pcrsonally. j.Hirchase and w;')j ■'.:■'. • .-vii.u;^'- men, and pro- i> can onsv be done by agent.'N agents, ■ die exec )rporation. ih rporation. Whei' themselves to super e.xcclPl^c .1 -, for them, then sue!- iselves repre>evits the corporation a-- ■ ' !)erformance of tli the corporation, h VICE-PRIXCIPAL DOCTRINE. 623 not in those respects a co-servant, a co-laborer, a co-employe, in the common acceptation of those terms, an}^ more than is a director who exercises the same authority. Though such superintendent ma}' also labor like other co-laborers, and may be in that respect a co-laborer, and his negligence as such co-laborer, when acting as co-laborer, may be likened to that of any other, yet when, by appointment of the master, he exercises the duties of master — as in the employment of servants, in selection for the adoption of the machinery, apparatus, tools, structures, appliances and means suitable and proper for the use of the other and subordinate servants — then his acts are execu- tive acts, are the acts of a master, and then corporations are re- sponsible that he shall act with a reasonable degree of care for the safety, security and life of the other persons in their employ. These executive duties may also be distributed to different heads of differ- ent departments, so that each superintendent within his sphere may represent the corporation as master. In controlling and directing structures, in employing and dismissing operatives, in selecting ma- chinery and tools, thus he speaks the language of a master. Then he issues their orders to their operatives. Then he is the mouth- piece and interpreter of their will. Their voice which is silent is spoken by him. He then only speaks their executive will, not the irresponsible will of a fellow- workman or co-laborer. The corpora- tion can speak and act in no other way. His executive acts are their acts, his negligence is their negligence; his control, their control. He has in his executive duty no equal. He is not, while in the per- formance of these executive duties, only the equal of the common co- laborer or co-servant."'. Harper v. Ind. & St. Louis R. R. Co., 47 Mo. 567 ; Mullan v. Phila. & So. Alail & Steamboat Co., 78 Pa. 25. We might refer to other decisions, but we think those cited estab- lish the principle which governs the present case. We have exam- ined the authorities cited by the counsel of the defendant and regret that several of them were inaccessible ; but those we have been able to examine do not controvert the general doctrine recognized in the cases heretofore cited, except the case of Shearman v. Roch. & Syracuse R. R. Co., 17 N. Y. 153. But in that case two of the judges did not sit, and another expressed no opinion. In Davis v. Detroit & INlil. R. R. Co., 20 Mich 153, the cause of action was an injury sustained by a yard-man of the company by the negligence of an engineer who was alleged to be incompetent, and it retained him in service after notice of his incompetency. But the case was de- cided in favor of the defendant, because the plaintiff failed to show that defendant had knowledge of the incompetency of the employe. And the case of Tindall v. Ohio & Miss R. R. Co., 13 Ind. 366, was where a set of hands were at work for the company graveling a part of the track. The same hands loaded and unloaded the cars con- veying the gravel, and rode back and forth on the cars. While thus employed the train through the alleged carelessness of the engineer 624 DUTIES OF PRINCIPAL TO AGENT. ran against an ox, was thrown off the track, and one of the em- ployes was killed. It was held that the engineer and the deceased were engaged in the same general undertaking, and the representa- tive of the deceased could not recover. The case is not in conflict with those cited above. The person killed and the engineer were co- laborers. The engineer had no authority over the laborers. Applying the principle to be gathered from the current of authori- ties to our case, we think it is clear that Lowrie was what is termed a middle man ; for it was in evidence that he was engineer, superin- tendent, conductor and master of the gravel and material train, whose business it was to employ and discharge hands connected with the business for which the gravel train was used, and that he had entire charge of the business on his section of the railroad. He was no co-laborer with the plaintiff ; he had no equal in his business ; he was the representative of the defendant. The laborers engaged in the same business were in subordination to his authority, as master pro hac vice; they were bound to yield obedience to his commands; and his acts were the acts of the defendant, and his neglects, the neglects of the defendant. We are of the opinion there is error, and the nonsuit must be set aside. Let this be certified to the superior court of Rowan county, that further proceedings may be had in accordance with this opinion and the law. Error. Reversed.^ O'BRIEN V. AMERICAN DREDGING COMPANY. 1891. Supreme Court of New Jersey. 53 N. J. L. 291. Plaintiff's action was brought to recover damages for an injury received by him by reason of his foot having been drawn into the machinery of a steam dredge, whereon he was employed as a "deck hand." The dredge was owned by defendant, and was, at the time, used in dredging the James river, near Richmond, under a contract with the United States government. The machinery had stopped because the chain had jumped from the drum, and the plaintiff took a position which exposed him to the injury if the machinery moved. ^Accord: Chicago, etc., R. R. v. May, 108 111. 288. "Where the master, or one placed b)' him in charge of men engaged in his service, personally assists or interferes in the labor being performed under his direction and control, and is, while performing such labor, or interfering with its performance, guilty of negligence resulting in an injury to one engaged in such service, there is no sound principle of law that v/ill excuse or exonerate the master from liability."' Boynton, J., in Berea Stone Co. v. Kraft, 31 Ohio St. 287, 291. ny. i -vns matter of cont •rkmen gave : proposed ni- . • • was a verdict ii. : ■A'.:,LE, J. — One ol I'l. \i on the conto.tioa of plaintiff, was a 'Tion employer, the <\^ ce (if his act was ne; 'lot exercise proper c; iiiploy, of which there lie general rule, that lie same master, in ■^. n to injury f •d. althougl: are fc each o .^ :Ce, and >: .: ..ir any in, . :!ting therefrom, .■■ 'wxl in a series of cases ur courts (Harr . 2 Vroom 293; Paul- • V. Erie R. R. C v. Burns. 10 id. 117; n V. Lippincott. / 46-^ ). is no<" ^r put in his place a re; injury to a serv:^= ■ thus conceded h 'h V. Oxford Ire rber an incorpor • was Oi that the been committed iiy dangerous e- :d to use it in re. under siich cir^ notice of the n; ' 1 be nej^- •r^r th'.^ use Ot t; ran against an ployes was killed. •:•■.•' engaged in t:: (' the decease: ecover. f the eii 'i deceased ; epresenta- iu conflict tics, to our middle man ; . ten dent, cond whose busines +be businc^*; ■' iirire chci iK> co-iabc was tho •■ the s:\ M-r: /• :ace that }!- of t;ie Cft" ■ his sect; he had no defendant, rdinatiov to yield 'lefendaj 's error, and ;he superior • had in acc< ^ 'perui- • 1 train, lected with hat he had d. He was i "css; he -iged in , as master ommands ; gleets, the uit must be set '•^'_v,an county, his opinion I COMPANY machinery oi hand/' Th:: used in d' if the v< :- an injur} , n into the as a ''deck 1 the time, had jumped fr. osed him to V'ICE-PRINCIPAL DOCTRINE. 625 The evidence was conflicting whether plaintiff had been ordered to take that position by one Cannon, who was called "captain" of the dredge. The machinery was set in motion by Cannon and caused plaintiff's injury. It was matter of contest upon the evidence whether Cannon or other workmen gave notice to plaintiff' of the danger of his position, or of the proposed movement of the machinery. There was a verdict for plaintiff, and this rule was granted. Magie, J. — One of the reasons assigned in support of this rule is based on the contention that Cannon, whose act occasioned the in- jury of plaintiff, was a fellow-servant of plaintiff', and that their common employer, the defendant, is not liable for Cannon's negli- gence (if his act was negligent), unless it appears that defendant did not exercise proper care in employing him, or in retaining him in its employ, of which there was no proof. The general rule, that servants emplo3-ed by or under the control of the same master, in a common employment, obviously exposing them to injury from the negligence of others so employed or con- trolled, although engaged in different departments of the common business, are fellow-servants who assume the risk of each other's negligence, and cannot have recourse to the master for any injury resulting therefrom, as announced and established in a series of cases in our courts (Harrison v. Central R. R. Co., 2 Vroom 293; Paul- mier v. Erie R. R. Co., 5 id. 151 ; McAndrews v. Burns, 10 id. 117; Ewan V. Lippincott, 18 id 192 ; Rogers Locomotive Works v. Hand, 21 id. 464), is not brought in question, but its correctness is conceded by plaintiff's counsel. On the other hand, it is also conceded that a master may employ and put in his place a representative, for whose negligence occasion- ing injury to a servant, also in his employ, he will be liable. The rule thus conceded has been applied by our courts only in the case of Smith V. Oxford Iron Co., 13 Vroom 467. The question there was, whether an incorporated company was liable to an injured servant whose injury was occasioned by the neglect of its president. The case showed that the superintendence of the business of the company had been committed to its president. He introduced the use of a highly dangerous explosive without instructing the workmen di- rected to use it in respect to its dangerous qualities. This court held that under such circumstances a duty devolved on the company to give notice of the qualities of the explosive, a failure to perform which would be negligence, and that, having entrusted to its chief executive officer the superintendence of its business, it became his duty to give the required information, and his failure or neglect in that respect was imputable to the company and rendered it liable to its servant injured in the use of the explosive. The superintendent 40 — Reinhard Cases. 626 DUTIES OF PRINCIPAL TO AGENT. of the business was thus held to be, in respect to this duty owed by the company to its servants, a representative of the company, whose negUgence was its negUgence. The question to be solved in the case before us concerns the rela- tion between the defendant company on the one hand and Cannon and the plaintiff on the other hand, and the rule to be applied in re- spect to plaintiff's injury, if occasioned by the negligence of Cannon in relation to the common employer disclosed by the evidence. If that relation comes within the doctrine of Smith v. Oxford Iron Co., defendant's liability will be settled ; if, however, the relation is dif- ferent from that then considered, it must be next determined whether it comes within the principles of that case, or whether, upon that or other principle, the liability of the defendant is shown. In determining the relation of parties, we are bound to assume as proved whatever the jury was warranted in finding from the evi- dence to sustain plaintiff's action. Thus considered, the evidence establishes the following, viz. : that defendant is an incorporated company engaged in the business of dredging by steam dredges ; that Albertson is the general superin- tendent of the company, having power to direct where the dredges are to operate, to supervise the employment of workmen and to dis- charge them; that the steam dredge, whereon plaintiff's injury was received, was directed to be worked in the James river, near Rich- mond, under a contract with the United States, the control of government engineers and the supervision of an inspector stationed thereon ; that Cannon, who was called "captain" of the dredge, was authorized to employ men to work on it, subject to the approval of the general superintendent, who had power to disapprove and dis- charge them ; that the duty of the captain was to operate the dredge in said dredging; that plaintiff was employed by Cannon as a "deck hand" on the dredge, and his duty was to aid in the operation of the dredge, and that Cannon had charge of the men so employed and they were under him. From this it is obvious that the case in hand does not present the same features as that of Smith v. Oxford Iron Co. The relation which its president and superintendent bore to that company is here paralleled by the relation of Albertson to the defendant. While Cannon was entrusted with some authority to employ workmen, yet, in respect to the operation of the dredge in the prosecution of de- fendant's business, he was not a general superintendent, but a mere foreman of the gang of workmen engaged with them in the execu- tion of the master's work. He was a superior and they were in- ferior workmen, but all were employed in a common operation, though in different grades of service. Does the principle on which that case was decided, or do correct principles, fix a liability on the master under the circumstances of this case? T}^.-. ,-.,!p laid dow.. ,. ... itive officer of an in> the superintendc- workmen, its re ' anottier. n. ...i own, the Id .. . to the workmen in master, who is 1'-^^ " : 2 Thonip. Neg^.. M'.ice a cor, Ht when it : . who, in '!ve of th. . :h corporations to a : ■ een them an-^' --'^i- -.Hvidual emj !es governing ■. i ft mav he th?.T. -• en may represent tii^ ^'■'^t a master may '.- ts he may repre- ^.an. neither of these pr. the rule I have me een the relation wh- e of his master and •th others, we are co •ns. evincing a posit; ' ■ of the business wa the company to its negligence was its The question to : '-' ■ 'M-tween the i iC plaintiff ot I Oct to plaintiff's in relation to the that relation c defendant's li.'i ferent from th it comes withii other principle In determining :i proved whntever i ized to fiand" on dredge, ::.■ they were: From this i same features : vvhich its presidem paralleled by the Cannon was entni- i to the opev. business, he ioieinan of the gang < tion of the master's \^ ferior workmen, but ail were en though in different grades of scrv Does the principle on whicl principle? ' ■ ■ ' " ' ■^'•■■ this case? d to be, duty owed by a representative my, whose in the case before v s the rela- company ov. '''- • ' id Cannon r hand, and olied in re- asioned 1) lae ;; of Cannon lover dis< 'i?"vc:er| ; dence. If on Co., is dif- It must be • ■.;d whether ' that case, ci .. .'.!) f'l.it or ;e defendant is si ■ ! parties, we ' '-' as!?unir. as ..- warranted {rem the evi- • establishe-^ i' : that . ompany lusiness of : :!: Alber , ,al superin- ver to direct where the dredges ioyment o-i- - ''men and to dis- . where. ff's injury was ■ ' , ' ' ver, near Rich- flie ''(iiitrol of • itioned :;e, was work on ■ Approval of ■i.,^ UaA f. ■e and dis- the dredge \vc!o C'il ; as a "deck ity was •- nion of the . harge c .ployed and iie case : present the . V. Ox' : he relation ■ tendent bore any is here ,„ Albe-'-- ■ ^ mt. While some a rkmen, y " ;• . tion of de- but a mere . in the exec'- ; they were '. ■ irere en inon ope rati' :. )f SCrvi- licb f, or do corr., v ■'■ ircumsta'— ' VICE-PRINCIPAL DOCTRINE. 627 The rule laid down in that case is based on the proposition that the chief executive officer of an incorporated company, to whom it has committed the superintendence of its business, is, in respect to duties owed to its workmen, its representative. This proposition accords with that announced by the text writers on this subject, viz., that when a master commits entire charge of his business to another, retaining no oversight and exercising no discre- tion of his own, the latter becomes, in respect to the duties of the master to the workmen in his employ, an alter ego, or vice principal of the master, who is liable for his negUgence. Shearm. & R. Neg., § 102; 2 Thomp. Neg., n. 1038, § 34; Whart. Neg., § 229. Since a corporation must, in general, act by agents, it is evident that when it becomes an employer of men there will exist some agent, who, in respect to its duties to the employed, will be the repre- sentative of the company. While, however, it may be necessary for such corporations to act in these respects by agents, the relation be- tween them and such agents will be identical with that between an individual employer and such agents voluntarily employed, and the rules governing the relation will be alike. It may be that a master, whether an individual or a corporation, in the conduct of an extensive business, may so commit the charge of distinct departments of the cominon work to different agents that each may represent the master within that department. It may also be that a master may employ one in a dual relation, so that in some respects he may represent his master and in other respects be a mere workman. But neither of these propositions need now be pronounced upon, for neither is directly involved in the case. When we examined the adjudged cases involving the application of the rule I have mentioned, and attempting to draw the line be- tween the relation which will constitute an employe the representa- tive of his master and that which will make him a fellow-workman with others, we are confronted with a variety of irreconcilable deci- sions, evincing a positive opposition of views, between courts admin- istering the same system of laws. In one line of cases, the mere fact that one servant is endowed with a superior grade of service over others who are subordinated to him, is deemed to establish his position as a representative and vice principal of the master. Such is the view taken in Ohio, Berea Stone Co. v. Kraft, 31 Ohio St. 287, and cases therein collected ; in Illinois, over dissent, Chicago & Alton R. R. Co. v. May, 108 111. 288; in Missouri, Cook v. Han- nibal, &c., R. R. Co., 63 Mo. 397; in Tennessee, Louisville, &c., R. R. Co. V. Bowler, 9 Heisk. 866, and in Michigan, Chicago, &c., R. R. Co. V. Bayfield, 37 Mich. 205. So, in the Supreme Court of the United States, it was held, by a divided court, that a conductor of a railroad train, who had a right 628 DUTIES OF PRINCIPAL TO AGENT. to command the movements of the train and to control those em- ployed on it, was not a fellow-servant with such employes, but a representative of the company, for whose negligence it was liable. Chicago & Milwaukee R. R. Co. v. Ross, 112 U. S. 377. On the other hand, there is a line of well-considered cases which repudiate this doctrine, and hold that a servant, employed as a fore- man with other workmen, is not, in respect to such employment, a vice principal, but only a fellow-workman. A "mining boss" or "driving boss," who were under a general su- perintendent of a mine, were held, in Pennsylvania, to be fellow- servants of those working with and under them. Lehigh Valley Coal Co. V. Jones, 86 Pa. St. 432. A like principle will be found to underlie the decisions in Ruse v. Biddle, 112 id. 72 ; New York, Lake Erie & Western R. R. Co. v. Bel, /(/. 400; Waddell v. Simonson, id. 567, and Lewis v. Seifert, 116 id. 626. A like view is expressed in the courts of New York. Brick v. Rochester, &c., R. R. Co., 98 N. Y. 211 ; McCosker v. Long Island R. R. Co.. 84 id. '//'■, Crispin v. Babbitt, 81 id. 516; Malone v. Hath- away, 64 id. 5 ; Hussey v. Coger, 112 id. 614, and Loughlin v. State, 105 id. 159. In the last cited case, Chicago & Milwaukee R. R. Co. v. Ross, supra, was disapproved. Cases in Massachusetts, some of which carry still further the lim- itation of the master's liability, are collected in Throop Dig., tit. "Master and Servant," II, 2, § 56, The following English cases are in the same line : Murphy v. Smith, 19 C. B., N. S., 361 ; Feltham v. England, 2 L. R., Q. B., 33, and Wilson v. Merry, i L. R., S. & D. App., 326. In the absence of authority in this state, we are at liberty to adopt that view which is most consonant with the reason for denying the liability of a master to a servant for injuries received by the negli- gence of the fellow-servant. That liability is denied by the law, because the servant is pre- sumed to have entered upon his contract of service with knowledge that he would be exposed to risk from such negligence, and to have required proper compensation therefor in the wages agreed upon. The exemption from liability which the law thus raises out of the contractual relation of master and servant, does not, of course, ex- tend to the liability of the master for his own negligence, or for negligence which may be contemplated as his. So, if a master su- perintend and manage his own business, he will plainly be liable for an injury to a servant resulting from his own negligence; and if he withdraw from the superintendence and management of his business and substitute in his place another, he will be equally liable for the negligence of his vice principal. Whether the master retain the superintendence and management of his business, or withdraws himself from it and devolves it on a vice principal or representative, it is quite apparent that, although the irzLf •ide the maci' neither can, ai .tiori of all sudi v execution of the vhere necessary, ihat one should be s - .o the execution of ' rvice is so essential and )g upon a contr.'-.t o\ i in a proper <-;^-' "nternplation .reman, as \v^ ne foreman < :e precise posi.- Although the q; ■xford Iron Co.. ' work- ince of the ihe eight of author; not : rent servant net*. ■■:t. My conclusion '■ not a conclusiv 'tat Hability will anst .r.e place the master \ ■ when the negligent cru- ■•'.tion of the mast. anaging his own 'Htracting workn,. rhe result is, th,. The trial judge lert Cannon, which cau,^ preseritative of defen But it was clear, ur thin the scope of hi V' existe i v^ice. . J ui of tlie men on th ister in which all wer IS a fellow-servant, a direction for a vera ■. • The rule to show cause n: ■ 11 ai S- ■ from !, service with the irijurt.i 'eriority in grade of service '■'le liability of the master. ^ mploye has been put in ^y, but i' r foreni ■ct See collection of cases accord .i'. 62S W V,. , . . . ■ ,4... .,,.^.^ .'.l*-^ ... the traii. ■'T'A those er ployed on it, was servant ves, but ■ -• - ■■^•^dve of 1m .ii;, for wliosc ,vH§ liable. Milwau!. Co. V. Ross, 112 ,i:e othe- line of ■ ' - which . ate this ' ■ ♦h?.t V. -1 fore- liiaxi with other w iuyinent, vice principal, but -. A "mining boss , ' who Vyf ' general su- perintendent o^ .Vi, in Penty be fellow- servants of th and under \iih Valley Coal Co. V. Jo: ••. A like p; ' jund to underlie the di Biddle, 112 ., Lake Erie & W. i, id. 400; \'. ;onson, / 567, and T_ 626. A !i: 'he courts of Brick V. R<,^^;- .. Y. 211 ; M- •ng Island ilabbitt, 8t h. V. Hiith- ■, 112 id. 611 ,n V. State, ise, Chicago ■^ R. R. Co. . of which cai cr tiie lim- . are collect. Dig., tit. are in the same line: Murphy v. L cithara V. England, 2 L. R., Q. B., 33, :., S. &D. App., 326. ;i; > liberty to adopt th^.t N- or denying the li' i by the negli- That Ik >nt is pre- umed to he . <. "...l.ll.^v.. ^, ■vDowledge ■ at lie would ; from such :id to have d upon. )ut of the se, ex- >r for negligence which may ler su- per intend and man^if>^ ,-able for an injury to a serv, : and if he withdraw from the .- ..■ lis business and substitute in his p'. ble for the n^; ' of his vi ,'cll. the m: n the e ie. as was rn^ rion hatf ,old tha^ tio] oi au.,"-aer, such ;■ ;i iiarjle if the subot'' ■itlier, without r^ ihey were engag when it overrule^ . Other courts ; co-employe or ff imaged in the san^ mined by the rar the act being pe^ plies a contract the offending Ci other acts they ;■ 834, and cases ci; This court is that the liabilitv the performance vi the rank of the oiter Co., 38 Wis. 289, ti injuries caused b^ '■ duty of the fori negligently < v/as a vice \:>: .riund that it o- reasonable time liable for the nc to whom that d >.. without regard to tb-. In fiowland v. ]\I was employed as a .s' ■ :iy track. He was iv aring the track w:> plaintiff was subject i>bintiff lo remain ii; . ' .pted to run the e: • .0 doing the c '1 that -the t or bus- jurt appi: !t. o the latter rule, 10 wit, ^n the nature of the act in d. without regard to nts V. C. & N. W. R. liable to an employe for of repair ■ ' ■ '- -- *'- s to rcD The above ca- sn!iject under cr ; i, on the pri; 'J ' DWYER N EXl'RES: i8c Appeal fron Ten years a; ant, the Amer' sonal injuries • the neglige- manager - allege*' with V th- tli. was hauling a . tliat the pl?'i^' the load, ^^ from n order lorincr ace authority o ; defendant drive the tcoiu ■ hut that it V a)- muirer to ■ Lyon, C an inccmf was any dc. .. raents of good ■'■' "-nm was :; iS conceci 1'' iiini. :■ c- mere press company in 1 makes the compan, ticular Winrn o have : .io was : itice at ved by tiiC ind from \h md to I ve one i i-he express . se of hi.^ '"'' >v;e came h1 demu' , — and that it w : \dng when the pi :.;-fend- r per- use of :.!, cat and cohiplai to go e and on an appeal ■ tUe same int in the !,ad all the ay, he wa.-, is duty 1 . was injure^: md said work was performed b} ant for i' -^ '-'■i . Dj-gsent 1 an ord. .al de- ontains no the tea; nrerrr '/olvin was tliat there -ons, or ;i the C! iiui; emplo} Colvin an • iKing ship- die driving (. .iiargc -tiff in c for ii Colvin > ction of for V.-- ' IJ\. (.V . th,-- VICE-PRINCIPAL DOCTRINE. O3I when, were he not such vice principal, the company would not be thus liable, as was ruled on the appeal in the former action. This question has been determined both ways. The courts of some states hold that, if an employer put one servant under the con- trol of another, such servants are not fellow-servants, and the master is liable if the subordinate servant is injured by the negligence of the other, without regard to the nature of the work or business in which they were engaged at the time. The circuit court applied this rule when it overruled the demurrer to the complaint. Other courts adhere to the doctrine that whether the relation of co-employe or fellow-servant exists between different employes en- gaged in the same business for the same employer is not to be deter- mined by the rank or grade of either servant, but by the character of the act being performed by them. "If it is an act that the law im- plies a contract duty on the part of the employer to perform, then the offending employe is not a servant, but an agent, but as to all other acts they are fellow-servants." 7 Am. & Eng. Ency. of Law 834, and cases cited. This court is unmistakably committed to the latter rule, to wit, that the liability of the master depends upon the nature of the act in the performance of which the injury is inflicted, without regard to the rank of the offending employe. In Brabbits v. C. & N. W. R. Co., 38 Wis. 289, the company was held liable to an employe for injuries caused by the use of an engine out of repair which it was the duty of the foreman of defendant's shops to repair, but which he negligently omitted to do. It was not determined that the foreman was a vice principal, but the company was held liable on the express ground that it owed a duty to plaintiff to repair the engine within a reasonable time after it became defective, and hence that it was liable for the negligent failure of any of its servants or employes to whom that duty was intrusted to repair the defective engine, without regard to the rank or subordination of the negligent servant. In Rowland v. M., L. S. & W. R. Co.. 54 Wis. 226, the plaintiff was employed as a shoveler to aid in removing snow from the rail- way track. He was in a car drawn by an engine, and the work of clearing the track was in charge of a conductor, to whose orders the plaintiff was subject. At a certain point the conductor directed plaintiff to remain in the car and, as it was alleged, negligently at- tempted to run the engine and car through a snowdrift on the track. In so doing the car was overturned and the plaintiff injured. It w^as held that the conductor and plaintiff' were fellow-servants in the common business of clearing the track, and that the railway company was not liable for the negligence of the conductor. The above cases fairly illustrate the doctrine of this court on the subject under consideration. In the Brabbits case the company was held, on the principle that it is liable to one of its servants for the negligence of another in respect to any duty intrusted to the latter 6^2 DUTIES OF PRINCIPAL TO AGENT. to perform, which at the same time is a duty the company owes to the injured servant, no matter how humble or subordinate the em- ployment of the offending servant may be. The real effect of the rule is to make any servant of the company who is charged with the performance of any duty which the company owes its servants a vice principal in respect to such duty. The case of Schultz v. C, M. & St. P. R. Co., 48 Wis. 375, affords an apt illustration of an applica- tion of this rule. In the Rowland case the company was held not liable for the neg- ligence of the conductor, who for many purposes is held to stand for the company, and who had control of the plaintiff, because the al- leged negligent act did not pertain to a matter in respect to which the company owed a direct duty to plaintiff. For that reason the conductor and his subordinate employe — the plaintiff — were held to be fellow-servants engaged in a common undertaking, and the com- pany was held not liable for the negligence of the former which re- sulted in injury to the latter. The same doctrine is adhered to in Toner v. C, M. & St. P. R. Co., 69 Wis. 188, and in numerous other cases in this court, some of which are cited in the opinion in the Toner case. Whatever may be thought of the reason or justice of the rule, it is now too deeply imbedded in our jurisprudence to be repudiated or shaken by judicial determination. If any change of the rule is desirable, it should be made by the legislature — not by the courts. The question here under consideration was not reached on the appeal in the first action for the alleged injury, and there is no sig- nificance in the circumstance that the court there gave no opinion upon it, but expressly declined to do so. In this case there is no direct averment in the complaint that the express company was neg- ligent, or that Colvin was incompetent to drive the team, or that the company failed in any duty it owed plaintiff. It simply alleges facts which show that Colvin chose to drive the team, as he had un- doubted authority to do, instead of allowing plaintiff or some other employe of the company to drive it, and that he drove it so negli- gently that the plaintiff was thereby injured. Under the above rule, these averments show that Colvin and plaintiff were fellow-servants in the particular business in which they were engaged, and hence that the company is not liable for the negligence of Colvin. It results from the foregoing views that the complaint fails to state a cause of action against the express company, and that the de- murrer thereto should have been sustained. By the Court. — The order overruling the demurrer to the com- plaint is reversed, and the circuit court directed to sustain such de- murrer. i86o. Supr>:me Case. — Th.: i.r^cr.-i, fallows : In a plea. mts hen the tenth dir ' f a certain Concord, in r ro a place ■ • ^aia, operate^ and along s.'i nnd had the oi tne Vi M^ .lofrn 'ent. or r rheir said r^ : .e injured servan 1 er how hui; P- P' . St. P. R. Co., 4b V tion of this rule In the How), ligence of the '. m ai was the company, leged • the co- .ill t.0 .■ V to plai co ■';ye— I'- ■.:.y-i:.:^:; m: ■ UpOii direct ; ligent, or ti companv " , facts Avhic' doubted auuind for he al- which jri the -Id to com- ch re- • to in > other in the .ce of to be ige of i be made by the legislature — ^not by the consideration was not reached on the r^"C: alleged ' ' there is no sig- at the c I'e no ooinion ;eteiit tc th It results from ti:r a '.anse of act''^''> :r:v\\ : '■■'■ thereto By the CoUk'. — ; r,- nnwy . plaint is reversed, and the circui m • 'is to sts rut: coi- 1 such d' PREMISES APPLIANCES ASSUMPTION OF RISK. 633 (C ) DUTY OF THE EMPLOYER TO PROVIDE SAFE PREMISES AND SUIT- ABLE APPLIANCES. ALSO ASSUMPTION OF RISK BY EMPLOYE. FIFIELD V. NORTHERN RAILROAD. i860. Supreme Judicial Court of New Hampshire. 42 N. H. 225. Case. — The defendants demurred to the declaration, which was as follows : In a plea of the case for that the defendants heretofore, to wit, on the tenth day of February, 1859, owned, occupied, and possessed of a certain railroad called the Northern Railroad, running- from Concord, in the county of Merrimack and state of New Hampshire, to a place called West Lebanon, in the town of Lebanon, in the county of Grafton, which railroad runs through the town of Canaan, in said county of Grafton, and the defendants, at the time afore- said, operated said railroad by running their cars and engines on and along said railroad from said Concord to said West Lebanon, and had the management, control and direction thereof, and the engines and cars on the same, and the plaintiff was at said time in the employ of the defendants as a brakeman upon a freight train of said road of the defendants, and employed by the defendants for that purpose ; by reason whereof it became and was the business and duty of the plaintiff to attend to the brakes upon the train or trains of the defendants upon which he was, and it was also his duty to assist in setting out cars from said train or trains, and in taking into said train or trains such cars as it was necessar\' to take in, or set off, by shackling or hitching, unshackling- or unhitching the cars, as might be necessary, or as he might be ordered to do by the super- intendent, or other officer of said railroad ; and it was the duty of the defendants to keep said road in good and sufficient repair, and the track so cleared from snow, ice, and other impediments, and the engines and cars used and drawn thereon in good and sufficient order, so that their servants and men employed in making up, run- ning, managing and controlling their said trains upon said road, could, with ordinary care and prudence, do and perform their said duties in, upon, and about said engines and cars, and about the said railroad with safety ; yet the defendants, not regarding their said duty in these respects, negligently and carelessly allowed and suf- fered their said road, to wit, at said Canaan, on the day and year aforesaid, to become filled and blocked up with snow and ice on the side and sides of said road and tracks, aiid then and there negligently and carelessly suffered a certain freight car to be and remain out of repair, by reason of which negligence and carelessness of the de- fendants in permitting the said road to become so filled and blocked 634 DUTIES OF PRINCIPAL TO AGENT. up with snow and ice as aforesaid, and so carelessly and negligently permitting the said car to be so out of order, as aforesaid, the plain- tiff, while in the performance of his duty as by his said employment bv and with the defendants as brakeman on said train or trains, in shackling and unshackling said cars at said Canaan, heretofore, to wit, on the said tenth day of February, and while in the exercise of great care and prudence on his part, was unavoidably caught be- tween the said cars, and run against and upon by the said cars, whereby the plaintiff's arm was broken, and he was so otherwise cut, bruised and wounded that he became and was very weak, sick, sore and disordered, and so remained and continued for a long space of time, to wit, from thence hitherto, and still so continues, during all which time the said plaintiff suffered great pain, and has been wholly prevented and hindered from performing any business what- ever during that time, and deprived thereby from earning a support for himself and family, and so now continues ; and also by means of the premises the plaintiff was forced to pay, lay out and expend, and has necessarily paid, laid out and expended divers large sums of money, in all amounting to a large sum of money, to wit, the sum of five hundred dollars, in and about endeavoring to be healed and cured of his wounds, hurts and bruises occasioned as aforesaid ; to the damage of said plaintiff, as he says, the sum of five thousand dollars. Doe, J. — The gist of the declaration is, that by reason of the de- fendant corporation negligently permitting its road to be blocked with snow and ice and a car to be out of repair, the plaintiff, a serv- ant of the defendants, employed as a brakeman, was injured. If the railroad were owned by one individual, and he should per- sonally assume the duty of examining and repairing the road and the cars, and through his negligence in not repairing, or in imper- fectly repairing them, a brakeman employed by him should be in- jured, the employer would be liable. And if the employer did not attend to the repairs himself, and if ordinary care and prudence re- quired that one or more persons should be constantly engaged in making repairs, and the employer, through gross negligence, did not employ any, or a sufficient number of repair-men, or negligently employed unskilful ones, and a brakeman, not knowing this fact, and being in no fault for not knowing it, and being chargeable with no negligence or fault whatever, were injured, solely in consequence of such negligence of his employer, the employer would be liable. In such case, the master would be held responsible for the exercise of ordinary care and prudence. If he assumed to do any part of the work himself, he should exercise ordinary care and skill in doing it ; if he did nothing personally, except hiring all the servants, he should exercise ordinary care in employing a sufficient number of competent servants. And a declaration alleging that he carelessly and negli- gently permitted the track and a car to become and remain defective PREMI- wo; tained I. and re I f the bu lent anc ;;, and : n, or an . k and a car becar :ts would exist 1. ;g;ence consisted himself, or ^'. men or coti ihe same gen the road and emj The agents of a must have a raasi-:. n-a^ter and servant r or a being ^ case, ordinal should have been ei; •-iiow and ice fr.;-., not to emplr in•=1-fiFicien^ -■; d that ken, and he was so otherwise cut, bruised ar; came and w - . sick. sore and discv i and contini!' J, space of time, to >. and still S' .•.:s, during all whidi rered great ■ ! has been wholly rom performing . iiess whpii ever 6< ved thereby fror a suppoiv ior hn ow continues; ar means of :ced to pr '- -pend, and ■ud cxp< • sums of um of _d and ' bruises occasioned as aiuresaid ; to ^ir- Kavs, the sum »"' n\ ( ^ ilii'»u>..-mfi the cars, a fectly repj- jured, the attend to tne r cd unskiiiu; .... ing in no fai. no negligence or fa of such negligence In such case, the i o" ■ • care ai- w ""If. he s' ■ •., that bv 1' i^Dii 1,1 ..lie ue- ng its road to be blocked V out of repair, the plaintiff, a serv- es a br?kem?'t>. was injured. he should pcr- ot , :n e, did gently ■ fact, ■e'lM i)C lUlUiC-. )r the exercise •ny part of the ill in doing it ; ■ ants, he '< r of coni relessly and ! ro^^iiii <"''' PREMISES — APPLIANCES — ASSUMPTION OF RISK. 635 would be sustained by evidence that they became and remained de- fective through his personal carelessness and negligence in not dis- covering and remedying the defects, if he took upon himself that branch of the business ; or by evidence that he assumed the general management and superintendence of the road, and employed all the workmen, and that from gross negligence he employed no re- pair-men, or an insufficient number, or unskilful ones, whereby the track and a car became and remained defective. In either case, the defects would exist by reason of his own negligence. Whether his negligence consisted in not discovering or in not removing the de- fects himself, or in not employing any or a sufficient number of re- pair-men, or competent ones, the action could be founded upon his personal negligence, and the allegation that the defect existed by reason of his negligence would be sufficient. The same general rules must be applicable, whether the owner of the road and employer of the workmen is a person or a corporation. The agents of a corporation must have a principal, and its servants must have a master; and the mutual duties and liabilities between master and servant must be the same, whether the master is a man, or a being existing only in contemplation of law. In the present case, ordinary care and prudence may have required that workmen should have been employed to repair the cars, and to remove the snow and ice from the track, and the stockholders may have voted not to employ such workmen, or to employ a number known to be insufficient, or those known to be incompetent, and the plaintiff, in the exercise of reasonable care, and without any knowledge, or means of knowledge of defects in the car or track, or of the insufficiency or incompetency of the repair-men, may have been injured in conse- quence of the action of the stockholders. In such case, although the stockholders, for many purposes, are not the corporation, it would not, probably, be denied that the plaintiff, being injured by the gross negligence of the controlling power of the corporation, could main- tain this action. The declaration must, therefore, be held suffixient. It is understood that the powers and duties of the directors are such that, in the general management of the business of the cor- poration, their negligence may be called the negligence of the cor- poration, in contradistinction to the negligence of its servants. Whether any other officers occupy a similar position in relation to the corporation and its servants, cannot now be decided. King v. B. & W. Railroad, 9 Cush. 42 ; C, C. & Cin. Railroad v. Kearv, 3 Ohio (St.) 201. The rule is very generally established that a servant who is in- jured by the negligence of a fellow-servant in the course of their common employment, without any fault on the part of the master, can maintain no action against the master for such injury. The rule appears to be founded on the implied contract that he who engages in the employment of another for the performance of specified duties 636 DUTIES OF PRINCIPAL TO AGENT. and services, for compensation, takes upon himself the natural and ordinary risks and perils incident to the performance of such serv- ices, the compensation, in legal presumption, being adjusted ac- cordingly ; and it is said that perils arising from the negligence of fellow servants are incident to the service. Farwell v. B. & ,W- Railroad, 4 Met. 49. The contract between master and servant, for many if not for all purposes is, that each will exercise ordinary and reasonable care. If an individual is the sole owner of a railroad, and also general manager, purchaser and superintendent, he is presumed to engage with his workmen that he will use ordinary care in furnishing them with engines, cars and road, in a condition reasonably safe, and if, from any defect in the engines, cars or road, which ordinary care on the part of the owner personally would have prevented or cured, a brakeman, in the exercise of ordinary care, having no knowledge or means of knowledge of the defect, is injured, the owner is liable. But it would be unreasonable to imply a contract of warranty, on the part of the owner, that the engines, cars and road should be sufficient and free from defect. And it is claimed that it would be equally unreasonable to imply a contract of warranty on the part of the owner with each of the workmen that all the other workmen should^ be competent and free and from fault, and that the only reasonable and consistent contract that can be implied on this point is that the owner will exercise ordinar}^ care in employing compe- tent workmen. If such owner hires an engine and engineer, and a. brakeman is injured at one time by a defect in the engine, and at another time by the fault of the engineer, it might be difficult to imply a contract on the part of the owner to use ordinary care in hiring a suitable engine, and a contract of warranty that he would hire a suitable engineer, and that the engineer should not only be reasonably competent, but that he should never be negligent. It has been held substantially that whether a workman is injured through inadequacy of machinery, or other aids or means furnished by his master, or through incompetency or carelessness of fellow- workmen, his right of action against his employer stands upon the same ground ; that between master and servant the implied con- tract is that each will use ordinary care in all things pertaining to the servant's business ; that if a master exercises ordinary care in hiring and retaining in his employment a competent engineer, and in buying and continuing to use a suitable engine, the master should no more be liable to a brakeman, if the engineer should prove to be incompetent, or being generally competent should on some oc- casion be careless, than if the engine, apparently sufficient, should explode ; that the master has performed his contract with the brake- man, so far as it relates tO' the engine and engineer, when he has done all that ordinary care requires him to do to secure an engine and engineer reasonably suitable for the business. If the owner of I care n^ ther pa- ^n them their fixed by ■ cl c. . - f- 1 al and .ister is ensrai :ed •is ini- a raii - serv- ants ^' ■' •;i^T:- self, 1 far ab .--■■.-.. r..^ ,l; -.v,,.^. ■_,. man, who would charjre tl ... M : ' 'ish his claim \ public poi. standing ;. law on , roads, or extensive em ants, in this case, and . harvest, or two carpenters ':re. to be determined by tli .ister and serv:)nr, and >- se between c undation in ■ tter. Bailees bailment, at act of bailment : rvants, must '■ ■- ifoiTn rule, material. If the employer's contrP' men is, that he will use iinary care i: rkraen, but that he will ■ i; guarantee i . such care. . u '. i. 'he cjligence of one . :s injure not liable, the cui^ ... ' v- -^^ ^ ': act of the master, h jjut if a third person, r and servant, is injured V the master ■ ' ct. The ser- ■; risks incident to ti:. ;reement, and is not j And if the contract, ' ' risks only of the 1 ■ks of other business •m maintaining- the negligence - in other business. Hit cn!v as to t'le neglige). , or the ■ . r. i:>.. •.. undertak:; ,, ■ n it. by their negligence ;n tii. ht ably expect to be - be understood to be . iitcre being an express agreemci. V risk? and n-e to tVx il and serv- f'iiow servant Ivailroad, 4 M^ The contraci purposes is, tlir.i ■ ; If an individual is manager, i witii hi'- " with V iron: ... on the part and sen ar: hi: hire a suit •pably ^A-- !S been .;.:h i'l.- 11. tract IS thate? the servant's Lu. . ■ hiring- and retainin in buying and conti ' no more be liable b<' ■ €:■ expiude ; ciiat the mabter has p«: man. so f,ir as it i'^^hitc- to th: ^lent, iu - ;e a-dinan- in a condii' aid if. '. ars or V care would h cured, Tr-"' '--It. .'.ledge liable. ;tv, on lid be And it idd be 1 contra e part. \orkmen thai worknii and from fa..>.. . . the 01 : .ct that can be i; . this po ordinary care in c iij>!cying comi a'res an eno'ine anr engineer, and ;e by a ^ ' engine, and at le engiL' l:>e difficult to the owner 1 '! ry care in contract of ^^ : he would at the engineer turn I she: -'f fello-; all things pertaining ■ , - \ /-. .1 • * ■' •''^ry care ineer, ai ter shou. : prove vuh the . when aire aM engi PREMISES — APPLIANCES ASSUMPTION OF RISK. 637 a railroad, being a person of ordinary care, should select his serv- ants with reasonable circumspection, and ride upon the road him- self, he would take as much care of his brakeman as of himself, so far as their safety depended upon the other servants ; and the brake- man, who would charge the owner with greater obligations, should establish his claim upon strong and satisfactory grounds of reason, justice, public policy, or probability as to the actual intention and understanding of the parties in making the contract of service. The law on this subject is not peculiar to common carriers, rail- roads, or extensive enterprises. The responsibilities of the defend- ants, in this case, and of the individual who hires two laborers in harvest, or two carpenters to erect a staging and shingle his house, are to be determined by the same legal tests. This case is between master and servant, and is to be carefully distinguished from a case between common carrier and passenger, as there may be no foundation in the former for the peculiar principles applicable in the latter. Bailees are held to different degrees of care in different kinds of bailment, as between themselves and the other parties to the con- tract of bailment; but all bailees, as between themselves and their servants, must be held to a degree of care fixed by a general and uniform rule. The business in which the master is engaged is im- material. If the employer's contract with his workmen is, that he will use ordinary care in the employment of other workmen, but that he will not guarantee their carefulness, and if he use such care, and, by the negligence of one of them another of them is injured, the employer is not liable, the common rule of torts, that the act of the servant is the act of the master, being suspended as to that case by the contract. But if a third person, not a party to the contract between the master and servant, is injured by the fault of the servant, his right of action against the master does not depend upon, and is not limited by that contract. The servant has agreed to bear, and is paid for bearing the risks incident to the service ; the stranger has not made such an agreement, and is not paid for bearing such risks. And if the contract, implied on the part of the servant, is to bear the risks only of the business in which he is engaged, and not the risks of other business, he would not be prevented by his contract from maintaining an action against the master, if he were injured by the negligence of another servant of the same master, engaged in other business. His remedy would be restricted by the contract only as to the negligence of fellow-servants engaged in the same general service, or those employed in the conduct of one common enterprise or undertaking, or those whose employment is such that, by their negligence in the usual line of their duty, he might reasonably expect to be endangered, or those whose negligence might be understood to be incident to his service. There being an express agreement between the master and serv- 638 DUTIES OF PRINCIPAL TO AGENT. ant to do certain work and to pay for that work, but no express agreement as to the care to be exercised, the Habihties to be assumed, or the risks to be borne by either, the most reasonable contract to be implied on those subjects. The servant is supposed to undertake that he will exercise reasonable and ordinary care in doing the work ; and he is liable, if, from the want of such care on his part, any damage result to the person or property of the master, and the damage could not have been avoided by ordinary care on the part of the master. And if the servant receives an injury which such care on his part would have avoided, he has no remedy against the master, although the master may also have been in fault. And if the servant knows that a certain part of the work is to be done by other servants, and the master is required to use ordinary care in employing them, the obligations of master and servant, as between themselves, in everything done by each of them in relation to the servant's business, would be reciprocal and equal. A contract is implied, on the part of the servant, that he assumes the apparent risks, as well as those generally incident and ordinarily and reasonably to be expected in the service. Assop v. Yates, 2 H. & N. 768. He engages to bear the special perils which he knows actually to exist in his particular service, as well as the dangers generally appertaining to such business. If an engineer undertakes to run an engine which he knows to be defective and peculiarly liable to burst, he has no remedy for an explosion to which he voluntarily exposes himself. If he would have the visible or known risks borne by his employer, he should insist upon an express stipu- lation to that effect in the contract ; no such stipulation can reason- ably be inferred. And if the servant takes the risks of known defects of machinery, it would seem that he also assumes, to some extent, the risks of known incompetency and insufificiency of fellow-serv- ants. Skipp V. E. C. R. Co., 9 W. H. & G. 223. In the present state of this case we are not called upon to deter- mine what rule, as to the liability of a master to a servant, for the negligence of a fellow-servant, is the law of this state, as the de- fendants may be made liable without raising that question. And whether it should have been alleged in the declaration that it was the duty of the defendants to use and exercise ordinary and rea- sonable care and diligence, to keep the said road and car in rea- sonably good and sufficient repair, etc., and that the defendants did not use and exercise ordinary and reasonable care and diligence to keep, etc., but negligently and carelessly allowed and suffered, etc., is a question not argued by counsel or considered by the court. Similar allegations, in the leading case of Priestly v. Fowler, 3 M. & W. I, were held insufficient upon grounds which are not satisfac- tory to us. It was there said that if the owner of a carriage is re- sponsible to his servant for the sufficiency of the carriage, he is re- sponsible to the servant, also, for the negligence of his coach-maker, !e defendam n the carria,c c occasion, h be in a ; ■nrisi<1or' V part of the m v implied contra, procuring- a suit lintifF, the incor, •ion in that casf ve resulted ."• rdinary and • ed meanijig !•• MIS of this kinu. Demurrer overrulf. PENNA. &.\ MASON. i.'^Sq. SrpREit! son and Sarah :ial and Railroad ir respective h" 'n the respective facts appea r^ ' e as follows . saiu : "ii is no : ■ ■'^TilTol the trnrl, , ■n and tal: •ight to k. ■ii'.' mill conipauy .' •.trrif'--^ '(] on those ; , lilt; 1' • servat. tssumed, < I the Tiiasi care (iti his master, altii the ser\ other SI eni! tllCi scrvaiu nt recer. led, he also h.'t ■ i maati ' ■y each i • rocal and eq^ a-t "of tho e di * r an \ ■..,:: _ •r known :!■ :^IlOUm :■IC^iM ui^V.JI ..Ul ^Ai.VeSS Stlpl]- ntracl. ; no such stipulation can reason ! ' ■ ' ' ' " \nown defects some extent, and ii. r fellow- serv H. &G. ." we ari > of a n ; the la • -, the dr n. An it it w? and re;' - in re:' :-anilar allegations. J & \" ■ ' : • lor nib bcivaiit for the the servant, also, foi .•red, etc. liie courr \'.ler, 3 li not satisfai .irriasre is re PREMISES — APPLIANCES — ASSUMPTION OF RISK. 639 or his harness-maker, or his coachman, and that the mere relation of master and servant never can imply an obligation on the part of the master to take more care of the servant than he may reasonably be expected to do of himself. But the declaration in that case was, not that the defendant insured the plaintiff against injury from all de- fects in the carriage, but that it became the duty of the defendant, on that occasion, to use due and proper care that the said carriage should be in a proper state of repair. The declaration seems to have been considered as setting forth a right of action growing out of a contract of warranty ; whereas, in fact, it alleged substantially that from the relation of master and servant, there was to be implied, on the part of the master, a contract to use due and proper care. If the implied contract were that the master should use ordinary care in procuring a suitable carriage and suitable fellow-servants for the plaintiff, the inconvenient and absurd consequences which the de- cision in that case seem to have been intended to avoid, would not have resulted from holding the declaration sufficient. The terms "ordinary and reasonable care and diligence," have an exactly de- fined meaning in law, and perhaps they should be used in declara- tions of this kind. Demurrer overruled.^ I PENNA. & N. Y. CANAL AND R. R. CO v. MASON. SAME V. LESLIE. 1885. Supreme Court of Pennsylvania. 109 Pa. St. 296. These were two actions of trespass on the case, brought by Anna Mason and Sarah Leslie against the Pennsylvania & New York Canal and Railroad Company to recover damages for the deaths of their respective husbands, Frank Mason and John Leslie, caused by the alleged negligence of the defendant company. The defend- ant pleaded not guilty. On the respective trials in the court below, before Morrow, P. J., the facts appeared to be substantially the same in both cases and were as follows : ^ See Pressed Steel Car Co. v. Hcrath, no III. App. 596. If servants in the scope of their employment are reqnired to go upon prem- ises not owned by the master, the latter must use due care to have such prem- ises safe. Harding v. Railway Transf. Co., 80 Minn. 504. On page 506, Start, C. J., said: "It is no answer to this proposition to say that the defendant did not control the track and steps ; for. if its right to use them in the work of putting in and taking out cars for the mill company did not carry with it the implied right to keep the premises safe for its emploj'es, it was bound to see that the mill company did so, or decline to use them." 640 DUTIES OF PRINCIPAL TO AGENT, John Leslie and Frank Mason were employes of the defendant company, the former as engineer, and the latter as fireman, of the locomotive "Wyoming." On April 26, 1880, they were both killed by the sudden explosion of the boiler of this locomotive, while they were operating it in the course of the company's business. The locomotive was originally built by the Baldwin Locomotive Works in i860, and had been in the use of the defendant since that time. In 1877 it had been taken to the defendant's repair shops at Sayre and inspected, repaired and tested. Shortly before the accident it had again been taken to these shops and repaired and re-tested by the practical machinists who were in the employ of the company. These employes were under the direction of J. N. Weaver, the mas- ter machinist of the company. Weaver testified that he also had the engineers and firemen employed by the company "under my control ; that is, so far as the care of the engines was concerned. I had nothing to do with them on the road. I directed what engines they were to run on." He further testified that he directed what engines should go out and assigned the engineers to run them, that he had exclusive charge of such assignments ; that he arranged all promotions and made such changes as he thought necessary. The evidence as to the cause of the accident was conflicting. There was some testimony tending to show that the accident was due to the negligence of Leslie ; other witnesses testified that the boiler was defective in its original construction and insufficiently repaired, and that by reason of these defects it was unfit for use. The court sub- mitted these questions to the jury for their determination. The plaintifif submitted the following point: i. That the de- fendant company was bound to keep and maintain the engine "Wyo- ming" in such condition as to be reasonably and adequately safe for Mason (Leslie), the deceased, to be upon and use, and if the jury believe the death of Mason (Leslie), was caused by the negligence of the defendant in failing to keep and maintain the said engine in such reasonably and adequately safe condition, the plaintififs are en- titled to recover. Answer : This is affirmed. The defendant submitted the following point in the case brought by Anna Mason : 3. That the workmen in the shop at Sayre who repaired this boiler were fellow-servants under the evidence in this case with Frank Mason, and the plaintiff cannot recover if the explosion was caused by their negligence, either in inspecting or repairing the boiler. Answer : That is denied. It is true that Mr. Weaver testified that he had under him Slowey, who made these repairs, and he also had under him the engineer and fireman of the gravel train ; and, as Slowey repaired this engine by his direction, it is claimed on the part of the defendant that because they were all imder Weaver, vie was not )f the -^ 'in v.ouid bind tb- Verdict in each on. The defer inter alia, the .... in qualifying dete- *he supreme court Mr. Justice Ckn On the 26ti-'. of a locomotiA the engineer, was so injured ti.af he actions wer^ ' ing to th( ' actions are in '„.l ■ together, and for . opinion. Certain anesl'to: 'led by th-: ihe work ^ • lid not b} (lent. There u cr^ «:ourt below, aboui as that the burthei on the part of th<,' recovery if the ac servant; that this ■. tools with which i required to do. ani careful mechanics the boiler. In jury, and the} have some assignuK-n'- rulings of that court. We are told that it the plaintiffs' first poi quately" as follow^ : keep and r be reason;, upon and u.^^.. LiuL sin-.ply 'sutTicjency ; sul' 41 — Rejnhaud C\m - Cuurt. h in thi rt below have been set- iciency of the lx)ikr foi ' .! ■■ :■'. . ihe formr iocditiotive "W'-' by the sudden l were ofierating it locomotive was or- : : i860, and he ^i\ 1877 Jt had .vd inspected, . had again beeii the practical n These < ter m;,> the en COlilri;' I ]. ne.Q-ugence M, bell of the defoi such reasoi titled to re*' Answer: il' The defendar b\- Anna Masor, ' ;, That the bv'.' V were fellow- ran. Mason, and ^d bv their nt C'll boi' That if that he iiad under 1/ had under him the • as Slowey repaired this I ' ; ■!'.-: 1 iciuniutiu iS fireman, of the ni 20, : ■ ■ killed Diler of they of thi The V the J^' ■ '^rks lue ujiis- nl?o had J by th'. _ of the ( : 'the road. . t engines >her testified ted what led the engiv iliem, that ; assigimient ■ed all I'-^C'^ as he ti^ . The ■nt was here wr. .t the ac :•■' to th'.- i.iesses testified i- i' ■■! and insufficie... i » L ^. • , . I ' xj i.*. J . ■ unfit for use. The court sub ■ y hjc th': ■ ■ ' ■ ■ -Tnination. followin;' T That the de ne"Wyo- ;\- safe'foi '■ the jur; ; ; , i , . . ;-.i C... ■ ■v'-ljofMir- ^p and maint brougl" the sho- -r the engine b rb;;t he-- lired th case wii sion w. 'iring t! -•aver te5tifi< ^, and b- el train iaimed' • ■ nder '^A' I PREMISES — APPLIANCES — ASSUMPTION OF RISK. 64I therefore they were fellow-servants, and that if the engine was not reasonably, carefully and well repaired, the plaintiff cannot recover, because Slowey and Mason were fellow-servants. I do not think it follows, necessarily, because Weaver swears that he is the master mechanic of the shop, and I think that whatever was done under him would bind the defendant. Verdict in each case for the plaintiff therein, and judgment there- on. The defendant took these writs of error, assigning for error, inter alia, the action of the court in affirming plaintiffs' point, and in qualifying defendants' point. The cases were argued together in the supreme court. Mr. Justice Gordon delivered the opinion of the court May 25, 1885. On the 26th day of April, 1880, in consequence of the explosion of a locomotive boiler belonging to defendant below, John Leslie, the engineer, was killed outright, and Frank Mason, the fireman, was so injured that he died on the 4th of May following, and these actions were brought by their widows severally for damages result- ing to them from the death of their respective husbands. As these actions are in all respects similar, they were, in this court, argued together, and for this reason we will dispose of both in the same opinion. Certain questions which arose in the court below have been set- tled by the verdict : among others, the insufficiency of the boiler for the work it was intended to do, and the fact that Leslie and Mason did not by any act of commission or omission contribute to the acci- dent. There were also certain legal principles recognized by the court below, about which there was and can be no serious dispute, as that the burthen of proof was on the plaintiff's to show negligence on the part of the defendant or its agents ; that there could be no recovery if the accident resulted from the negligence of a fellow- servant ; that this master was bound to furnish safe appliances and tools with which its servants might accomplish the work they were required to do, and that it could not be held liable if competent and careful mechanics were employed in the manufacture and repair of the boiler. In all these particulars the court properly instructed the jury, and they would seem to cover the entire case. Nevertheless we have some assignments of error founded on exceptions taken to the rulings of that court. We are told that it was a mistake for the learned judge to affirm the plaintiffs' first point because of its containing the word "ade- quately" as follows : "That the defendant company was bound to keep and maintain the engine 'Wyoming' in such a condition as to be reasonably and adequately safe for Mason, the deceased, to be upon and use." But as, according to Webster, 'adequacy' means simply 'sufficiency ; sufficiency for a particular purpose,' we cannot 41 — Reinhard Ca-Ses. 642 DUTIES OF PRINCIPAL TO AGENT. see wherein this instruction there was error. The boiler ought to have been sufficient for the purpose intended, and if it was not the company was responsible for the absence of such sufficiency ; in- deed, in this alone the neglect, if any, is found. But the court below was asked by the counsel for the defendant to say that the workmen in the shop at Sayre, who repaired the boiler, were, under the evi- dence, fellow-servants with Leslie and Mason, and that there could be no recovery for the negligence of such co-employes. To this the court made answer as follows : "That is denied. It is true that Mr. Weaver testified that he had under him Slowe}^, wlio made these repairs, and he had also under him the engineer and fireman of the gravel train ; and as Slowey repaired this engine by his direction, it is claimed on the part of defendant that because they were all under Weaver, therefore they were fellow-servants, and that if the engine was not reasonably, carefully and well repaired, the plaintiff cannot recover, because Slowey and Mason were fellow-servants. I do not think it follows necessarily, because Weaver swears that he is the master mechanic of the shop, and I think that whatever was done under him would bind tlie defendant." We think this answer accords with the general tenor of our Pennsylvania decisions, and unless we propose a new departure, and conclude that the servant is to have no protection whatever from the carelessness of his master, we must support this ruling of the court below. How a boiler-maker em- ployed in a machine shop can be regarded as a co-employe with a fireman and engineer engaged in running a locomotive on a rail- road, in the sense of making the latter responsible for the negligence of the former, is something that is difficult to understand. The only possible connecting link between them was the superintendent, Weaver, but as he stood in the place of the defendant company in the department over which he was placed, he is not to be regarded as an employe but as a principal : Mullan v. The Steamship Com- pany, 28 P. F. S. 25. What business had Leslie and Mason in or about the company's machine shop any more than they had about the shop of any other firm or individual ? The boiler was condemned as unfit for use, and was taken from these men for the purposes of repair, and afterwards, when it was supposed to have been made safe, it was returned to them and they were required to use it as a ma- chine fit for the intended purposes. The fact was, as the jury found, it was not safe, and not fit for the use to which it was put ; it blev.^ up, and destroyed the lives of the men who had charge of it, and the question now is, upon whom is the blame to rest if not on the master? And how are Leslie and Mason to be charged with the negligence of men with whom they had not the remotest practical connection ? Are we to strain a point against these laborers and raise a theo- retical connection between them and the boilermaker in order to shift the responsibility from the master to the servant? Neither on /ant a safe •> and machr at industrial master fron -hinery, and nied autlior, fhe case case ve; • which exei: ing to those i. of co-Iabore - 1_ 1 _^ -J table ir, ^rt> f'-o. ich the ma' - . . to be rei-^^- er equally ci tool, or macir imes danrrerniv^ in the V<; hetween the e?T>r e think it may be ought to ,s not the ency ; in art belov. workmen gravel 'red thi rection, it is claii; " *''' *" all imder Weavr le engine w.' 'fif cannot rt I do nil! use W . ■•^ T thiK. We th uswcr accoru- .ca as a ' c witn :i I. or liie ' rstand. e fiuperintenden: Ib.e de as an c . pany, .. - . ahoi.it the -t I r m or> ■poiiiiUiii:v iroin u\l ina-.: PREMISES — APPLIANCES — ASSUMPTION OF RISK. 643 disposition nor authority can we approve a proposition so clearly wrong- as this. Says Dr. Wharton in his work on Negligence, section 232 : "A master is bound when employing- a servant to provide for the servant a safe working place and machinery. It may be that the person by whom buildings and machinery are constructed, are serv- ants of the common master, but this does not relieve him from his obligation to make buildings and machinery adequate for working use. Were it otherwise, the duty before us, one of the most im- portant of those owed by capitol to labor, could be evaded by capi- talists employing their own servants in the construction of build- ing's and machinery. In point of fact, this is the case with most great industrial agencies, but in no case has this been held to relieve the master from the duty of furnishing to his employes, material, machinery, and structures, adequately safe for their work." The learned author, in support of what he thus propounds, cites, among others, the case of Ford v. Fitchburg Railroad Company, no Mass. 240. A case very much like the one in hand, and in which the duties of the master to his servants are well and ably stated by Mr. Jus- tice Colt. It is there, as in many other cases, held, that the legal rule which exempts the master from responsibility for accident re- sulting to those in his employ, or from those occurring through neg- lect of co-laborers, does not excuse him from the exercise of rea- sonable care in supplying and maintaining suitable implements for the performance of the work required. Nor are those agents who are charged with the business of supplying the necessary machinery, to be regarded as fellow-servants, but rather as charged with the duty which the master owes to the servant, and the neglect of such agent is to be regarded as the neglect of the master. So is the em- ployer equally chargeable whether the failure is found in the orig- inal tool, or machine or in a subsequent want of repair by which it becomes dangerous. There can, indeed, be no essential difference in these particulars, and the only question is, whether the defect from which the accident arose, was known, or might, by the exercise of reasonable diligence, have been known to the master or his agents. What has been above stated accords, we think, with the general tenor of our own authorities, and among others O'Donnel v. The Railroad Company. 9 P. F. S. 241. We must, therefore, refuse to sustain the exceptions of the plaintiffs in error, and approve the rulings of the court below. Judgment in each case affirmed.^ ^ "As between the employers and employed, it is unquestionably the duty of a railroad company to provide a track and equipments which shall be rea- sonably safe ; but this does not oblige the company to make use of the latest improvements, or to change the structures upon its road so as to conform to the most recent or advanced improvements and ideas upon such subjects." Sherwood, J., in Illick v. Flint, etc., R. R. Co., 67 Mich. 632, 637. "We think it may be laid down as a legal principle that in all occupations 644 DUTIES OF PRINCIPAL TO AGENT. KNOX V. PIONEER COAL CO. 1891. Supreme Court of Tennessee. 90 Tenn. 546. Snodgrass, J. — Plaintiff was injured while aiding- Shannon, an- other employe of the defendant company, to prop an entry in de- fendant's mine, where plaintiff was digging coal. It was not his business to prop the mine. While Shannon, whose duty it was to prop it, was thus engaged, he asked plaintiff to help him. Plaintiff left the place where he was at work and went to do so. A large piece of slate fell on his thumb and mashed it while he was so aiding Shannon. He sued for $1,000; lost, and appealed. If it was his duty to do this repairing, he cannot recover, because the danger of it would be the object for which he was employed, and was one assumed. If it was not his duty, and he was ordered to do it by one not authorized to command him, the company would not be liable. Railroad Company v. McDaniel, 12 Lea 386. See also 14 Lea 374. Accepting the invitation or obeying the order of one not author- ized to command him, and voluntarily placing himself in the dan- gerous position where he was hurt, gave him no right of action against the company. The company had been negligent in suffering the mine to g'et in a dangerous condition, and allowing it to remain so, and had plain- tiff's injury been occasioned by that negligence while he was in the line of his duty in passing under the loose slate the company would have been liable : but it is not so when such negligence did not proxi- mately cause the injury, but the same was caused by the voluntary which are attended with great and unusual danger there must be used all appliances readily attainable known to science for the prevention of accidents, and that the neglect to provide such readily attainable appliances will be re- garded as proof of culpable negligence." Field, J., in Mather v. Rillston, 156 U. S. 391, 399- "It is well settled that among .the legal obligations of a master to his serv- ant, forming a part of the implied contract between them, is that of making reasonable provision to protect the servant against dangers to which he is exposed while conducting the work he is employed to do, and of supplying a sufficient number of servants to effect the work with reasonable and ordinary safety to those engaged in performing it ; and if the proximate cause of an injury sustained by the servant while so engaged is the failure of the master to exercise ordinary prudence in this respect, the master is liable, unless the servant may fairly be regarded as having assumed the risk incident thereto. The failure of the master in this respect stands upon the same footing as the failure to supply suitable and sufficient machinery or appliances for conducting the work safely." Simmons, J., in Cheeney v. Ocean Steamship Co., 92 Ga. 726, 728. il-IEISLAN] 1898. Sup: Howard, C. T I ny in sn ' which ht ,v or of appel' turned answers \ sel may best h( in refusinrr ' rogatories, i fo inlerros:aton and previous tl coal near Linto than a year beror- known as No. 2, 1' which work he number of open with a passage way. ; r ent: '-•'y feet in width ; 1I1 ■ •'• ,s usual for the i end of the r ng mined on .kness; that it wai aiw ■ The law . :ract bet\ ■ " ^ ;■ I.'-, [ . .1 1 , Lime the U"l U7 ^o re- wers to dav of 2ii m ttie c •un a '"'tttii more. n Iron Co. v 'loctrine (assiv. discretion to apprcoui ■'cr^t'on to {hf^ rr?« r'' ■ i-.i'.- l\ assumpt. 417 DUTIES OF PRINCIPAL i^'xr -,4'^- Snodgrass, ].- ither employe (■■> tendant's mine It was not In- fu.-i:. iuty it was to prop it him. Plai so. A la'' wa? mjured while icre lie ~- II his thi .( d for $i,oo«'. ■^opairiiv:'-. h, 1 m, an- - ;n '^<- ;o help ! to do hile he yi, and .^.cJ to do would not pero' rnait '"•ent in suffering the mine to gfet in n "J wing it to remain so, and had plain- by that negligence while he was in the ■T-r the 1( ' i nany would when •=• i not proxi- d bv the voluntn' vv-liich ^30', 39^- ■'It is well siM legal obi' be used •if accid^;^ > will be Rillston, ister to his serv i^ that of mak' ^ (o which h The failure of the n wiiile . I ihe lil,i e, unless 'dent ther !'>oting as ^r condiic Co., 92 PREMISES — APPLIANCES ASSUMPTION OF RISK. 645 act of plaintiff in placing himself under it to aid another servant of the company at his request. Let the judgment be affirmed with cost.^ THE ISLAND COAL COMPANY v. GREENWOOD. 1898. Supreme Court of Indiana. 151 Ind. 476. Howard, C. J. — Appellee was employed by the appellant company in mining coal, and has brought this action to recover damages for injuries alleged to have been caused by the negligence of the com- pany in suffering coal to fall upon him from the roof of the mine in which he was at work. The jury returned a general verdict in favor of appellee, assessing his damages at $4,500. They also re- turned answers to interrogatories. The questions discussed by coun- sel may best be considered in connection with the action of the court in refusing to give judgment to appellant on these answers to inter- rogatories, notwithstanding the general verdict. From the answers to interrogatories it appears: That on the i6th day of October, 1895, and previous thereto, the appellant company was engaged in mining coal near Linton, in Greene county ; that on said day, and for more than a year before, appellee was employed in the company's mine known as No. 2, his business being to run a cutting machine, in which work he was assisted by one Sherwood : that there were a number of openings in the mme called work rooms, each connected with a passage way, or entry, the rooms being from twenty to twenty- six feet in width : that after a room was started at a given width it was usual for the miners to work at the face of the vein, that is, at the end of the room farthest from the entry ; that the vein of coal being mined on said i6th of October, 1895, was about five feet in thickness ; that it was mined by the men operating the machine by ^ "The law governing the relation of master and servant assumes freedom of contract between them. Much of the world's work is dangerous, and it could hardly be carried on successfully unless those who were employed in it should be held to assume the dangers that were incident to it, or which were known, or so obvious as that they ought to be known, by one entering the employ- ment. Latent or concealed dangers known to the master, or which he ought to have known, must be explained by him to the servant.'' Gray, Cir. J., in Bethlehem Iron Co. v. Weiss, 100 Fed. Rep. 45. 49. "This doctrine (assumption of risk) pre-supposes that the servant has suffi- cient discretion to appreciate the dangers incident to the work, and has no application to the case of young and inexperienced children. In such a case it is the duty of the master not only to warn the child, but to instruct him as to the dangers of the employment and the means of avoiding them." Searls, C, in Fisk v. Cent. Pac. R. R., ^2 Cal. 38, 43. The doctrine of assumption of risk applies to a domestic servant. Herold v. Pfister, 92 Wis. 417. 646 DUTIES OF PRINCIPAL TO AGENT, cutting away a part of the lower edge of the vein across the whole face of the room, preparatory to blasting ; that after the machine men had done their work, other miners, called loaders, drilled holes in the face of the coal which had been so cut under, into which holes blasting powder was inserted, and thereby masses of coal were thrown down and broken up ; that while the loaders were blasting coal in one room and removing it from the mine, the machine men were at work in another room ; three loaders, in this case, following the two machine men; that it was the business of the loaders to clear up a room after a blast and before any further cutting was done in it ; that appellee was hurt in a room known as No. 8 in the ninth entry east of the south main entry, his injury being caused by top coal and slate falling upon him from the roof of the room ; that on the i6th day of October, 1895, the day on which appellee was hurt, and for several days prior thereto, one Newport was appellant's mine boss ; that said mine boss visited room eight on the 14th day of October, 1895, and then found top coal adhering to the roof of said room, extending across the end of the room next to the face of the coal, and being about eleven feet wide on the right hand side of the room, and three and a half inches thick ; that the mine boss sounded this top coal and found it loose at the point where he sounded it ; that the mine boss then directed one of the loaders to take down the top coal, and before the accident occurred the loaders did take down a part thereof; that the part taken down began at the left side of the room, and the loaders took down all that was loose ; that the mine boss again visited the room on the morning of October i6th, the day of the accident to appellee, and then saw that a part of the top coal had not been taken down ; that about three-quarters of an hour after the mine boss left room eight, on the morning in question, appellee and his assistant brought in their cutting machine, and both noticed that a part of the top coal had not been taken down ; that appellee then sounded said top coal by striking it with a pick to dis- cover whether it was loose and likely to fall down, but upon such sounding the coal appeared to be firm, and to adhere closely to the roof of the room ; that appellee's assistant, Sherwood, sounded the top coal in like manner with the handle of a shovel, and also found it firm and adhering tightly to the roof ; that thereupon appellee and his assistant placed their machine and began to cut the side of the room under said top coal, and after they had been at work for an hour and a half the top coal fell upon them ; that the weight of the coal that came down was about 800 pounds, being all of the coal that adhered to the roof when they began cutting, and it fell a dis- tance of two feet and a half ; that miners determine whether top coal, or other material adhering to the roof of a room, is likely to fall by striking it and listening to the sound ; if such material is loose it will give forth a hollow sound on being so struck ; no other method is shown for determining whether top coal is loose ; that there is t'Ri mine. i no one ■')ee and In- • mine, had jiic to n - : that r. . entered by iioss ; that ap, to work in a roon; the loaders had i' ccasions to test tb and thus detc) this occasion : the coal, souni i when it was ^ >as the best li •>■ Sherwood .tter than the 4th of Octobe: le could do n )pellee and S'. al in room > :ts struck by om eight wl- r the acciden' •rve its conditio i. . i.. xe ; that the reason •. roofs of rooms in cause the entire vi.' fired ; that Newpoi of entries, rooms, :asion to go in a' ;ning coal, that j., . , ten became unsafe ":■ s done, and the '■ . n g'e r , b\' rem ovi n lied bet\ . ; that ap: eleven years I- lie boss for abou c l •J north and west of leering to the ro<,-'f, Im the morninp; of th'' crate the ni^ chine u iCed his machine un.: ;s there, in room eight, ai ih^ el handle used .. ,''cQ, either being in sounding on the ' of the : it was . ^n they sounded the lop ^d given forth when it lat the condition of - '1 it on the morning n, but thev did not ol^ 646 DUTIES OF PRINCn ■ uitting away a pa: face of the room, p; iiad done their w the face of the coa bla.uiiig powder • thrown down and coal in one r&^v' were at work the two mach' clear up a ro< done in it ninth entr top cc on th- luirt, r edge . ;o blasting miners, ca'; ■ad been so ' '!, and tii ■)iat while itn; lo. it from the i"''- Lhree loader was the ' ■ nd bef' 't in a r Ml entr^ • whole lie men oles in holes were lasting ■ men "g .. i>> to g was . b in the caused by n ; tha't ■■. ,■ , ee was to, one Newport was appellant's . , iLod room eight on the 14th day of top coal adhering to the roof of said of the room ■ ■ -' of the i wide on th of the :es thick; tha' imded - Q.t the poin led it ; : one of the ; take down the ...It occurred the . _. did take down 't taken down began at the left side of ^ '-wn all that ^ ' c; that the ,1 the morni: ober r6th. ;i-c, and : of the .vn ; thai. of an ii' in eight, chi ; '1 ciLiestion. «M ; iit in their c.; . and both noticed tliat a pan Loal had a; that appellee th' - • '^ oal by t.i ^ ... to dis- cover wh< likely to faUd upon such sounding tin; < '0 firm, .; • ' lai'sely to the roof of the re s assist I. sounded the al in likr ■ . ." : and adli'- his assistant place ■uL the side of i room under said ' ::■ ,'. work for . h^ur and a half tl. ;1 fell U] ■ ight of the coal that came do ■bout 8v' ... of the cr-i that adhered to th^ lien they .d it fell a d tance of two feet a: ; that m' 'lether top C' or other material tr^ the •s likely to i ]>y striking it am'' -aterial ' :. .,.;ii ^:^.p (■',~-^\^ ^ , •10 other ietennming whether ; that tliert PREMISES — APPLIANCES — ASSUMPTION OF RISK. 647 always more or less danger of top coal falling from the roof of a mine, and no one can determine by examination when it will fall ; that appellee and his assistant, while running a cutting machine in appellant's mine, had eight different working rooms, and changed from one to another, going to a room wdiich the loaders had made ready ; that rooms were often shot, cleaned up by the loaders, and again entered by the machine men between the regular visits of the mine boss ; that appellee and his assistant, Sherwood, when they went to work in a room often found top coal adhering to the roof wdiich the loaders had not taken down, and it was their custom on those occasions to test the condition of such top coal by sounding the same, and thus determining whether it was safe to work under ; that on this occasion Sherwood sounded said coal all over its surface, and the coal sounded solid and safe, both when appellee sounded it and when it was sounded l)y Sherwood ; that the pick used by appellee was the best thing for sounding top coal, and the shovel handle used by Sherwood was a good implement for that purpose, either being better than the implement used by the mine boss in sounding on the 14th of October, 1895 ; that to judge of the safety of the top coal no one could do more than listen to the sound when it was struck ; that appellee and Sherwood had good hearing v^-hen they sounded the top coal in room eight, and both heard the sound given forth when it was struck by the pick and the shovel handle ; that the condition of room eight when appellee and Sherwood entered it on the morning of the accident was open to their observation, but they did not ob- serve its condition closely or sound the top coal over its whole sur- face; that the reason why top coal was often found adhering to the roofs of rooms in which appellee and Sherwood worked was be- cause the entire vein did not always come down when the blast was fired ; that Newport, the mine boss, had general charge of the safety of entries, rooms, and other places where employes or others had occasion to go in appellant's mine ; that, in the course of the work in mining coal, that part of the room where work was actually done often became unsafe by reason of the manner in which such work was done, and the loaders often remedied the trouble which caused danger by removing the top coal ; that such dangers often arose and were remedied betv/een the visits of the mine boss, and without his suggestion ; that appellee had been a coal miner, a part of the time, for eleven years before the accident, and Newport had then been mine boss for about ten days ; that there was space in room eight to the north and w^est of wdiere the top coal that fell on appellee was adhering to the roof, in v/hich they might have worked their machine on the morning of the accident ; but it v/as necessary for them to operate the machine under tlie overhanging coal ; that the appellee placed his machine under the top coal, knowing that such top coal was there, in room eight, at the time lie so placed his machine, and 648 DUTIES OF PRINCIPAL TO AGENT. began work thereunder, because of the fact that he had sounded such top coal and beHeved it to be absolutely safe and free from danger. It is not contended that these facts show contributory negligence on the part of appellee ; but counsel for appellant do contend that the facts so found show that appellee assumed all risk of danger from the falling of the top coal. Counsel for appellee, on the other hand, contend that the danger was not obvious but concealed or latent, and that as to such danger there is no assumption of risk. It is true that the danger was concealed, but it was concealed from appellant as well as from appellee. And while the duty of inspection rested upon the company, and it was required to furnish a reasonably safe place for its employes to work, yet we think the facts show that the duty so resting upon appellant was performed as fully as was reason- ably possible. It is to be remembered that the defect in the roof was not in the passage way of the mine, but in the very place where appellee was at work, and of which he had a fuller and more com- plete knowledge than appellant could have. The cause of danger w^s in the immediate presence of appellee, and had been thoroughly tested by him and his assistant ; and. on such test, the place was found by them to be, as they believed, perfectly safe. They often found such top coal adhering to the roof when they entered a room to work, and were in the habit of testing it, as they did on this occasion. The jury found that there is always more or less danger of such coal falling, and that no one can tell by any examination when it will fall. It was also found that such dangers often occur and the top coal is removed between the visits of the mine boss, and without his suggestion. No doubt, as to permanent openings through which persons pass and repass in the mine, it is the duty of the mine owner, made so by the common law as well as the statute, to see that the mine is safe from all dangers that may be avoided by removing or propping up loose places in the roof. And while the statute (§ 12 of the act approved March 2, 1891, Acts 1891, p. 57, § 7472, Burns' R. S. 1894), makes it also the duty of the mining boss to visit and examine every working place in the mine at least every alternate day and see that the same is properly secured by props or timber, and that safety in all respects is assured, yet these require- ments must be taken in a reasonable sense. It cannot be intended that props shall be set up at the very place where the machine men are at work. The men must have room to use their machines and tools, and to engage in the actual work before them. Indeed the fact that the mine boss is not required to be present oftener than every alternate day shows that these props are not to be set up before the workmen have cleared a place for them. It is found that rooms are often shot, cleaned up by the loaders, and again entered by the ma- chine men between the regular visits of the mine boss. In Louisville, etc., Ry. Co. v. Howell, 147 Ind. 266, an employe was injured by reason of the parting of a coupling pin between two dangei -upled the cars het'.vcL; -<^e, "and thus hari' ' \ observe it, ti . lie for a knov chargeable with k\ ■ f machinery rr, ' me in contaC' are at work a condition and ' > hour, as th' vttcr means . iiployer possiblv -ises, as sa''' % '.. loi L >j, wliere an . of of a minv , to work did n ; the W( making" a danj^... ' ■ "'^ acter of the place falling top coal in caving in of a gra court that the which is ahke Vincennes Water '""ity of Lafayette, ■ The jury here f^ it of the top coal v ; •jiellee began work vcen, whether iIt. -uses arising afte: .,, xv.ing equal or better nger threatening hi: rht of action. Were and the failure oL -aid Ix: pn)pi>ed or ■rk, the case . '-:r. from a <^ r...i.s and bci the fallint;- ■ contend that ih^ that as to such that the danj^^ei as well as fro' upon the cr- •RINCI]?.- ■' the h ,uired t ch dn^ mat tr.* s reason roof wa- n.'t i-ii . but in e vvher. ap; u-]\ he had r- could have. appellee ■T1.1 < , ■ estincT 1' thai i>ut ■ I the v!- and withoi^' 'bt, as ( open ins? tbrouef'-' '■ -: ■-; m ■ ' the dut; nl rjic ^ ':e statute- to see ih;.,T ; voided b; removing- ( while til' statute {§ i Aiarch §7472, Bur, it '^I'-'O ■ to visit and ii least ever alternate d ■ - ■ ~ I - i by props c tinihiM". iv-v} pects is .hese require rij' ii- must .!( iclK' .,1.1,. ..,., , i,.^ ;,,t,-" 1- thar props shall he that tne mine boss : I than alternate day sliows np befo' w'.-rkmen ha ve cleared a place fv 'lat roon . ,■-.:..-, .•i-,,f ,- leaned up h^ ?tween the v r1,^ i. ,..,) U.. y'- JA PREMISES — APPLIANCES — ASSUMPTION OF RISK. 649 cars. The employe was at the time standing on the front of the engine liolding- the shackle bar in his hands, and it was unsuccess- fully sought to charge him with having assumed the risk of the danger occasioned by the defective coupling pin. "Had he coupled the cars between which the link was used," said the court in that case, "and thus handled the defective appliance and so had opportunity to observe it, there might be some propriety in holding him account- able for a knowledge of its condition. Employes are rightly held chargeable with knowledge of the condition of the tools and parts of machinery and appliances which they use or with which they come in contact." The same is true of the places in which employes are at work and v/ith which they are in immediate contact. The condition and dangers of such places are liable to change from hour to hour, as the work progresses, and the employe himself has much better means of knowing of such condition and dangers than his employer possibly can have. An important consideration in such cases, as said by the supreme court of Iowa, in Corson v. Coal Hill Co., loi Iowa 224, 70 N. W. 185, is whether the structure, appliance or instrumentality is one which has been furnished for the work in which the employes are to be engaged, or whether the furnishing and preparation of it is itself part of the work which they are em- ployed to perform. So in Finalyson v. Utica Mining Co., 67 Fed. 507, where an employe was injured by material falling from the roof of a mine, it was held that the rule as to providing a safe place to work did not fully apply to a case where the work consisted in making a dangerous place safe, or in constantly changing the char- acter of the place for safety as the work progressed. The case of falling top coal in such a case as the one before us is not unlike the caving in of a gravel pit, v.-here it has been frequently held by this court that the employe assumes the risk of such a possible danger which is alike open to the observation of employer and employe. Vincennes Water Supply Co. v. White, 124 Ind. 376; Swanson v. City of Lafayette, 134 Ind. 625. The jury here find that both appellant and appellee knew that a part of the top coal was left adhering to the roof of the place where appellee began work. Appellee found the coal, as he and his as- sistant believed, to be so fast to the roof as "to be absolutely safe and free from danger." In this it turned out that they were mis- taken, whether the defect then existed or was brought about by causes arising after appellee and his assistant had begun their work. Having equal or better opportunities than appellant for knowing the danger threatening him, it would seem that appellee could have no right of action. Were it not for the provisions of the statute above cited, and the failure of the jury to find whether the overhanging coal could be propped or timbered without undue interference with the work, the case would hardly admit of doubt. We are of opinion, however, from a consideration of the whole case as presented, that 650 DUTIES OF PRINCIPAL TO AGENT. justice will best be promoted by granting a new trial, rather than by ordering judgment on the answers to interrogatories. Judgment reversed, with instructions to grant a new trial, and with leave to amend pleadings if desired.^ LLOYD V. HANES. 1900. Supreme Court of North Carolina. 126 N. C. 359. Civil action for damages for personal injury alleged to have been occasioned by the negligence of defendant in permitting a saw used in their factory to remain without guard or screen, or safety ap- pliance used on such machinery, to prevent injury to operatives, tried before Robinson, J., at February term, 1900, of Forsythe Superior Court. The defendant denied all negligence on their part, and attributed plaintiff's injury to his own carelessness. The plaintiff was the only witness examined. He testified : "I am forty-two years old, and have been box-maker for ten or twelve years. In 1899 I was working for defendants in their shops in Winston. The shop is not joined to the tobacco factory, but is in the factory lot, and is operated by steam generated from the main boiler in the factory. They own the ma- chinery in the shop. I got part of my thumb cut off as I was sizing box timber. The saw came out of the table about one inch above the boards of the table. I was pushing the timber when the saw struck a knot, or gave way, and thrust my hand against the saw and cut off part of my thumb. It was an open saw without hood or screen. I had never seen or knew of a screen or hood operated in this manner before I was hurt. I have since seen such protection and hoods, especially in the factory of Bailey Bros. (Hood here introduced and exhibited to the jury.) They make saws less dangerous. If there had been a screen or hood, and the saw had struck a knot or cross-grain, it could have thrust my hand on the screen and not on the saw. I was required to size the timber down to a 32d of an inch, which was very careful work. I took particular pains to hold the boxing in place. I cannot do the same, or as good work as then. I got Si per day before I was hurt. I cannot get so much now. I cannot average over 60 cents per day. "W. H. Woodward in the shop employed me. I never spoke to Hanes about my employment, and never saw either of the Hanes ^ Contributory negligence and assumption of risk are often confused by the courts. See McKee v. Chicago, etc., Ry. Co., 83 Iowa 616. The question of contributory negligence is for the jury. Amato v. North. Pac. R. Co., 46 Fed. Rep. 561. Where a defect in the premises is plainly observable by an employee, he assumes the risk as a matter of law, and the question is not for the jury. Lindsay v. New York, etc., R. Co., 112 Fed. Rep. 384. eini ^•' m t^ a eacii < ;. The : & Co.' Cross-examined 1. Woodward in ■'-: to the rl-r appear ; ward, who . ig of a sr.v; was dangerou he knew it w:. at one time, b< Brown & WiJi tract at defen.i his own hands, o.' saws, but had iv^ < - to the one b) now working man hired to <' guard similar factories in W ments. At the close oi il:, the plaintiff, on hi- 1. Because hi? • was dangerous, and th: been engaged in sm- : character of the w- 2. Because his ' >y\ between him . The plaintiff, fr< > a led to the supri. Clark, J. — We ■■ -■n employe operate which have come • risk" which rc^ simply to hold ■■ :'-.';:'-iii;, but ii - - ;nan to n. ■'. er. This nega* : . ■ "t his negligence, ' tion, those whose iv 'T they can get it. A is not to be held as i" work at ments or s. here was a 1 and paid Hanes ■ W. TJ rt, and That .It n uses a saw wii hurt. In the tobacco f the different depart- e, his honor intimated tb : ot entitled to re^ • the sav •'■-' ■ dangero. waive y -. DUTIES OF PRI justice will best be j .1 ■h-v'f.-.cr judgment I, with instil ^leadings i' by grai ; nswers > grant r than by udgment leave to HANES. Civil acil occasioned in thei plianct. before par had ne- before . especially i and exhibiui there had been cross-grain, it t the saw. T \v; ir th , ^■. I y r day be v>.,age ove^ H. Woodwci ,1'tanes ahc / ' * Cont: ■' courts. :nal laj-u- ', been . iidant in used •ut guard or V ap- J nrevent in , tried buperioi- .1 their y. ittributi'' ctsncss. Th': the only "I am forty- And have ,rs. In ; lOr for The s! to the otoi-y lot, an. by steam .. in the factor-. 1 the ma- irt of my thumb cut as sizing of the table about our. Mim alx>ve thr ng the timber when the saw struck ny hand ajjainst i' ud cut I'l'" :>en saw without -creen. ; ■ en or hood ir. ■ :■. seen such Bros. ( . '.itroduce ! ,TM-e ^■• •rous. 1 1 ,1 knot oi :\ and not oi' ; a 32d of an • pains to h^•^ work as the much nr shop c; r spoke 1 _ ., 1 ■be Han' rinsed ^^- '■ ' The que.' PREMISES — APPLIANCES — ASSUMPTION OF RISK. 65 I employ or pay the hands in the several departments. There was a manager in each department in the factory, that employed and paid the hands. The bills for lumber were made out to P. H. Hanes &Co." Cross-examined, plaintiff testified : That he was employed by W. H. Woodward in the box shop, and paid by him. That he never spoke to the defendants about employment or his work, nor did his name appear upon their time book, but his time was kept by W. H. Woodward, who run the box shop, and paid for his labor. That the running of a saw of this kind was dangerous, and that he knew it was dangerous. That his hands were cold the day he was hurt, and he knew it was more dangerous when his hands were cold. That at one time, before his injury, he had a contract to make boxes at Brown & Williamson's factory, similar to W. H. Woodward's con- tract at defendant's factory. That he employed his own labor, paid his own hands, but they furnished the shop and power to run his saws, but had no control over his hands. That he used a saw similar to the one by which he was injured, without a guard. That he is now working at Taylor Bros.' factory, under a contract, and has a man hired to do his re-sawing, and this man uses a saw without a guard similar to the one on which he was hurt. In the tobacco factories in Winston there are managers of the different depart- ments. At the close of the plaintift''s evidence, his honor intimated that the plaintiff', on his own evidence, was not entitled to recover : 1. Because his evidence showed that the sawing of box plank was dangerous, and that he knew it was dangerous, and that he had been engaged in similar work ten or twelve years, and knew the character of the work. 2. Because his testimony did not establish any contractual rela- tion between him and defendants. The plaintiff", from this intimation, submitted to a nonsuit, and ap- pealed to the supreme court. Clark, J. — We cannot agree with the defendant's counsel that if an employe operates a machine which is lacking in safety appliances which have come into general use, that this is an "assumption of risk" which releases the employer from liability. That would be simply to hold that if such appliances are not used the defendant is negligent, but if the pressure of circumstances forces some un- fortunate man to accept service with such machine it releases the employer. This negatives the liability of the employer by the very fact of his negligence, and that as to the class most needing pro- tection, those whose urgent need compels them to take work wher- ever they can get it. As was said in Sims v. Lindsay, 122 N. C. 678: "It is not to be held as a matter of law that operatives must decline to work at machines which may be lacking in some of the improve- ments or safeguards they have seen upon other machines, under pen- 652 DUTIES OF PRINCIPAL TO AGENT. alty of losing all claims for damages from defective machinery. It is the employer, not the employe, who should be fixed with knowl- edge of defective appliances, and held liable for injuries resulting from their use. It is only where a machine is so grossly or clearly defective that the employe must know of the extra risk, that he can be deemed to have voluntarily and knowingly assumed the risk." To illustrate — if a railroad company fails to use automatic coup- lers it is negligence per se. Troxler v. R. Co., 124 N. C. 189; Green- lee v. R. Co., 122 N. C. 977. If one should take service upon a rail- road not having such appliances, this would not absolve the railroad from liability for its negligence in not using such life and limb- saving device. The doctrine of "assumption of risk" is more rea- sonable and extends no further than that if a particular machine has become injured or dangerous, and the employe, seeing the danger, does not report its condition, but goes on with his work in disregard of it, he assumes the risk. The difference between "knowledge of the danger" in the first case (absence of safety appliances which should be in use), and "assumption of the risk" (by working without protest at a machine which has become defective and dangerous), is pointed out among many other cases, in a late decision of the House of Lords, Smith v. Baker, App. Cases L. R. (1891) 325, in a discus- sion of the difference between the maxims "scienti non fit injuria" and "volenti non fit injuria," the former not being law, for which Lord Halsbury cites Bowen, L. J., in Thomas v. Quartermine, 18 Q. B. D. 685, and Lindley, L. J., in Yarmouth v. France, 19 Q. B. D. 647, 660, and further cites from the latter case that even when an employe reports the defect, if he is told to go on with his work, and does so to avoid dismissal, a jury may properly find that he had not agreed to take the risk, and had not acted voluntarily in the sense of having taken the risk upon himself. Whereupon Lord Halsbury sums up "in order to defeat a plaintiff's right to recover by the maxim relied on {volenti non fit injuria, anglice, 'assumption of risk'), the jury ought to be able to affirm that he consented to that particular thing being done which would involve the risk, and con- sented to take the risk upon himself." This has the weight of prac- tical common sense, no matter from what court it came, but with some, common sense has an added value when it iis found in a deci- sion of the House of Lords. The distinction is wide between mere "knowledge of the danger," and "voluntary assumption of the risk." Besides, "assumption of risk" is a matter of defense, analogous to, and indeed, embraced in, the defense of "contributory negligence," Rittenhouse v. Railroad, 120 N. C. 544, and it is an error to direct a nonsuit. Cox v. Railroad, 123 N. C. 604. The jury, as Lord Hals- bury says, must pass upon the question whether the employe volun- tarily assumed the risk. It is not enough to show merely that he worked on, knowing the danger. But the plaintiff, in fact, failed to make out negligence on the part i Jown jr .- ...,..,,,. a thn^ ■: that "It is nc; -afegnari rlee V. I; ; cases. "luld not ■ judge. It is unnec signed that t' between plain ..•, as a general rule chargeable to his 3.-^ Am. St. 692. r THE i.\. Elliott, J. — 5i of the comjv ' yard n^ar the and switches used jo; day of October, 1882 as a night watchman. and over the yard at erty of his employer. ployes. The man should b- discharge his ger, yet the a^ , the appellee had been necessary for him to and to protect himsei for him in a short tii formance of hi>? (hitir the appe'' C>n the n.L on his part, while m the * See acticle, "Vc 1 Harv. Law Rep., 14 , ... the iy'2 DUrjK.-; MP PRINCIPAL li, !?es froir. ■'er, no- ;ctive a] -ir use. It"; • that the t eeraed to ha . . iiiustrate — it - lers it is neghge;- lee V. R. Co., 12. road not h.^vine tr-'- a aiacli know . and kp' !pany fa.: T V. R. Co., 124 m tliat ii a paii '. the cninl<:>'.'e. - ;ce of Su he risk,'' risk'), the jury particular 'i' tic - SO! ■ sion of the House c •irio,, ir.,!,^^ Qf the not aci distmc in the sens' rd Halsbur; r bv the jetween mere of the ri^:'- ' ■•0. anal a noiis' Ijurv sa lanly assumed the risk, it is r. -' 1 on, knowing the danr-pr ;ie plaintiflf, in fact, f. merely that lie ■e on the pa: I PREMISES — APPLIANCES — ASSUMPTION OF RISK. 653 of the defendants upon the evidence because he failed to show that the safety apphance which he alleges would have prevented the injury was in general use, and, in fact, he shows the contrary'. The rule laid down in Witsell v. Railroad, 120 N. C. 557, is not that it is required that the latest improved appliances be provided, but only that 'Tt is negligence not to adopt and use all approved appliances and safeguards which are in general use." This has been approved, Greenlee v. Railroad Co., supra; Troxler v. Railroad, supra, and in other cases. The intimation that upon the evidence that the plain- tiff could not recover was correct, but not for the reason given by the judge. It is unnecessar}', in this view, to consider the other ground as- signed that the evidence did not establish any contractual relation between plaintiff and defendants. It may be said, however, that as a general rule the negligence of an independent contractor is not chargeable to his employer. Engle v. Eureka Club, 137 N. Y. 100, 33 Am. St. 692, and note. Affirmed.^ THE INDIANAPOLIS & ST. LOUIS RAILWAY v. WATSON. 1887. Supreme Court of Indiana. 114 Ind. 20. Elliott, J. — Stated in a condensed form, the material allegations of the complaint are these : The appellant maintained a freight yard near the city of Indianapolis, in which there were many tracks and switches used for handling locomotives and cars. On the 15th day of October, 1882, the appellee was in the service of the appellant as a night watchman. His duties as such watchman were to go about and over the yard at all hours of the night, and look after the prop- erty of his employer, and to wake up at the proper times its em- ployes. The appellant knew that it was necessary that the watch- man should be provided with a light in order that he might properly discharge his duties and at the same time protect himself from dan- ger, yet the appellant refused to provide a light. A day or two after the appellee had been so employed he notified his employer that it was necessary for him to have a light in order to discharge his duties and to protect himself. His employer promised to procure a light for him in a short time, and requested him to continue in the per- formance of his duties. Relying on this promise, he did continue in the appellant's service, but the light was not provided as promised. On the night of November i, 1882, he was injured, without anv fault on his part, while in the discharge of his duties, and his injury was ^ See article. "Voluntary Assumption of Risk," by Francis H. Bohlen. 20 Harv. Law Rep., 14-34 and 91-115. 654 DUTIES OF PRINCIPAL TO AGENT. caused by the wrong- and negligence of the appellant in failing to provide him with a lantern. The fourth instruction given by the court reads thus : "The general rule is, that when a servant, before he enters the service, knows it to be hazardous, or voluntarily continues his service, without objec- tion or complaint, when he has such knowledge, he is presumed to contract with reference to the state of things as they are known to him, and if he knows that the continuance of such service exposes him to constant and certain danger, the servant in such cases takes the risk upon himself, and in case he suffers injury thereby, he waives all claims for damages against his master for such injury. As has been said in argument, the master is not required to take better care of his servant than he takes of himself." Appellant's counsel dissects this instruction, and, seizing on the words "without objection or complaint," assails it as erroneous. This course cannot be successfully pursued. The instruction must be taken in connection with the others of the series, and cannot be considered as standing alone. An instruction is not to be judged by taking mere fragments dislocated from their proper connections, nor is one instruction to be taken as complete in itself. This instruc- tion must, as is well settled, be taken as an entirety, and in connection with the others referring to the same subject and immediately con- nected with it. City of Indianapolis v. Gaston, 58 Ind. 224 ; Deig v. Morehead, no Ind. 451. We must, therefore, take the fourth instruction in connection with that bearing upon the same subject, which is as follows: "6. To the general rule I have announced in relation to a servant who, with a knowledge of the dangers of the service, continues in it, there is at least this exception, that if a servant knows that his service is dangerous, and that he has not been provided with proper means or implements for the reasonably safe performance of the duties of his employment, and makes complaint to his master, who promises that suitable and proper implements shall be provided him to render his service less dangerous, then such servant may con- tinue in the service a reasonable time, and may recover for an injury sustained by him within such time, if, on account of the master's negligence in failing to supply the means of avoiding danger, the injury results ; provided such servant at the time of the injury was not guilty of any negligence which contributed to produce the injury. His care must be also proportioned to the danger ; when the one is increased, the other must be also. Yet all that is required is ordi- nary care under the circumstances of the case. And you must determine from the evidence in the case what would be a reasonable time within which he might continue in the master's service under said promise, if any was made, and, also, what would be ordinary care — that is, such care as an ordinarily prudent and cautious per- ao IK' I thAt -A' :r Call'". vvho re- ■e by ih>; : he nex' lorities e alter urgi:;- : ^;o. y. • L. Reg. 574; " ro c . Rep. 120; 2 Ti ■ refill exH'^^'- iinsel b, -i.cu that thi ;i Hohnes \ !-'ar] lament . 's m a 5-' f:.;,4 i-'UTIF.S OF PRINCIPA. ca- ailing- \v e gener?, nai v> I'l knows i ,/,arclous, ;t objec u«.ji ur complaint, v ■ - '"-net with refof ■ 1 if he 1 .,.,., .^ const'^'" the risk up '^e suif< waives all '. ^t his mci:>ic. A;-; lias bee! "laster is no; bet; ' ' ■' ■ loueou.- !;>>n mu.'^ he ^-s, and cannot hi '.., ,1,. . . ,1.. w , • -•- to be jrri--" ted from the • connect •.tiy COJi- -'i"tion in connection with ls follows: '-'':■ to a servant continues ii; ii, - that his 'h prope; ■^ of the ter, wh"' ^ ;-0'ni:'t ^ iV: - 'ded him to render h ^ may con- tinue in the for an injurv 111!' jury was ;i : e injury. !ie one i nary care u'ndt on musi .1 reasof ' ' "(?rvic«» 1 . :■:. yn ■■•A ,■,' i , , ■ . PREMISES — APPLIANCES — ASSUMPTION OF RISK. 655 son would exercise under the circumstances of the case. The want of such care is what the law terms negligence." If these instructions, taken together, express the law, then the ap- pellant has no just cause of complaint, even though the isolated clause which counsel detaches and assails should in itself be re- garded as an inaccurate statement of the law. Our conclusion is, that when the instructions are so taken they express the law as favorably to the appellant as it had a right to ask. The first of these instructions does not assert that those employees who continue in the master's service, "without objection or coin- plaint," do not assume the usual risks of the service. It simply asserts that all who do continue "without objection or complaint" do assume the risks incident to the service ; but it by no means as- serts that those who do complain and object do not also assume those risks. Possibly, the instruction standing alone may be incomplete, but it cannot be justly said to be erroneous, since it may be true that all who continue in a sers'ice without objection do assume the risks as well as those who do make objections. But, however this may be, it is sufficiently evident that the fourth instruction is made com- plete by the sixth, and there is, therefore, no available error. The next step takes us into a field of stubborn conflict. There are authorities holding that, where the employee objects to the safety of the appliances furnished him, the employer is liable if the employee is injured while in the employer's service, and within a reasonable time after urging the objection. Union Mfg. Co. v. Morrissey, 22 Am. L. Reg. 574; Thorpe v. Mo. Pacific Ry. Co., 89 ^lo. 650, 58 Am. Rep. 120 ; 2 Thompson Negligence, 1009. A careful examination of the other authorities relied on by appel- lee's counsel has satisfied us that they do not decide all that it is asserted that they do. In Holmes v. Clarke, 6 Hurl. ,& N. 349, the master neglected to fence a dangerous place, as an act of Parliament required him to do, and a servant was awarded a recovery for injuries caused by this negligence. Leaving out of consideration the element introduced by the positive legislation, although it is by no means clear that the act of Parliament did not exert an important influence, we yet conclude that the case does not sustain appellee's position. Wabash, etc., R. Co. V. Locke, 112 Ind. 404. This conclusion we rest upon these words of the opinion in the case cited by counsel : "Where machinerv is required by an act of Parliament to be protected, so as to guard against danger to persons working it, if a ser\'-ant enters into the employment when the ma- chinery is in a state of safety, and continues in the service after it has become dangerous in consequence of the protection being decayed or withdrawn,, bat complains of the want of protection, and the master promises to restore it, but fails to do so, we think he is guilty of negligence, and that if any accident occurs to the servant he is 656 DUTIES OF PRINCIPAL TO AGENT. responsible." The promise of the master formed, it is obvious, an important factor in the case, and exerted a controlHng- influence on tl^ judgment of the court. There are some expressions in Greene v. Minneapohs, etc., Ry. Co., 31 Minn. 248, that seem to support the appellee's contention, but the ultimate decision is against him. It was there said: "If the emergencies of a master's business require him temporarily to use defective machinery, we fail to see what right he has in law or natural justice to insist that it shall be done at the risk of the servant and not his own, when, notwithstanding the servant's objection to the condition of the machinery, he has requested or induced him to continue its use under a promise thereafter to repair it." At an- other place, the court, in speaking of the general rule, asserts that the master is liable where the servant gives notice of the defects and the master "thereupon promises that they shall be remedied." The utmost that can be deduced from the case under immediate mention is, that the servant may continue in the service a reasonable time after the promise to make the machinery or appliances safe, and that if he is injured Vv'ithin that time he may maintain an action. The cases of Kroy v. Chicago, etc., R. R. Co., 32 Iowa 357 ; Greenleaf v. Dubuque, etc., R. R. Co., 33 Iowa 52, Muldowney v. Illinois Central R. R. Co., 39 Iowa 615 ; Lumley v. Caswell, 47 Iowa 159; and Way v. Illinois Central R. R. Co., 40 Iowa 341, do not, as we understand them, go further than to hold that the master is not liable where the servant continues in his service with notice of its danger, unless he has induced the servant to do so' by an express or implied promise. In Way v. Illinois Central R. R. Co., supra, it was held error to refuse an instruction containing this clause : "If a brakeman on a railroad knows that the materials with which he works are defective, and continues his work without objecting, and without being induced by his master to believe that a change will be made, he is deemed to have assumed the risks of such defects." This, we think, implies that there must be a promise either in express words or arising by fair implication from the conduct of the master. Going back to the case of Kroy v. Chicago, etc., R. R. Co., supra, we find the principle upon which the subsequent decisions rest, for they are all built upon that case. It was there said : "Another im- portant modification of the liability of a master for an injury to an employee, which is sustained by an almost unbroken current of au- thority in this country and in England, is, that if a servant knows that a fellow-servant is habitually negligent, or that the materials with which he works are defective, and continues his work without objecting, and without being induced by his master to believe that a change will be made, he is deemed to have assumed the risk of such defects." This ruling certainly does not sustain the appellee's con- tention that if an objection and protest are made the master be- comes liable. The case of Snow v. Housatonic R. R. Co., 8 Allen iiat a ... .aiov'- •Q risks , e em pic ,tv as to 'U, it would r'-n or prot; :.s the ri- te indi; lilt to r. } wiiat "Such . . xpress or ''• ^^. Wharton ?•. Phis author is. i, ■'■ rule, e\ ihe excel ij."»t of events ti iters, goes on Wi defect. But thi OS where the em, : yet intelli.srentl . hority ma}' service of h '5^er of the service, a ^ss the master expr. 'Xt. The promise; c^ he promise be .' ur conclusion \' Oil. I4i^ ^ " 42 . (li li!C ; >U3, an - and ';nce on I i- t . fiClit Oi I' '^' v are sorn in Gr€^ ic, Ry. ;i Minn. 24.-- om to SUpp' mention, . .iie ultimrit^ '- -,< |-j;I1t.T ^T ' : i: "If I he emerg-ent! 'mil he done at tl . •irily to law or servant i'.iui 110 L -. ■' ■ '■"! *^hp- '■n^';']'' tliereafier tc> of the cf'T-i.^' ■ ■,1 1 •;■ '. ■ At an- isserts that the ]: •'ant gi\ ..i.-,3 that tlr iced from tr time lie niA rjo.. etc:. K' . Co., 40 or liiau to hi' ' iLies in his s he servant t' Lllinois Ceni ^.he defects ■ -lied." nediate . aciion. Irvva 35; , vncy V. !/ Iowa Ic lo not, r is not ' of it< was held truction cor.' lause: "li a bni'- - '■- .h-; 7I-,,. 1 which he \vor]^ ■ lUst be a pi •tion froni, tlv ecting, and mge will ^'O 'icts." Tl... in express the master. ; back to the cat Co., .??(/?■■, . ...id the princ" 1,-. , lis rest, i' ■ 1. hey are all built f t was t!:' vnother lu It modificati' -. ., .11 injury to .r \ee, which ;- 1 current of n . this CQi a a servant knc ' :aw-s'en . th-^t the mater, ,\Jih wiiich he wc. rk with o]>jectino, and wir believe t: ;. '■naiiL;-e will \u: 'n; '' 1 '. ■ . !ii; 1; '[^r i the risk of s>' '.lofects." This nil ing ccrtainl; I appellee - ■ ■ ention that if an obj ection a the ma: omes liable. The case of '' ' ' PREMISES APPLIANCES ASSUMPTION OF RISK. 65/ 441, cannot be regarded as in point upon this question, nor can the case of Indiana Car Co. v. Parker, too Ind. i8i, for both of these cases simply affirm the general rule that it is the duty of the master to provide his servants with a safe working- place and with safe machinery and appliances. In Patterson v. Pittsburgh, etc., R. R. Co., 76 Pa. St. 389, there was an express promise on the part of the master, and that fact gives a controlling force to the decision there made. We are re- ferred to Dr. Wharton's statement that "In this country the excep- tion has been still further extended, and w'e have gone so far as to hold that a servant does not, by remaining in his master's employ, with knowledge of defects in machinery he is obliged to use, assume the risks attendant on the use of such machinery, if he has notified the employer of such defects, or protested against them, in such a way as to induce a confidence that they will be remedied." Wharton Neg. (ist ed.), § 221. If it were conceded that this is a correct .statement of the law, still, it would not supply a premise for the conclusion that an ob- jection or protest exempts the servant from the general rule that he assumes the risk, for it is implied that something must be done by the master to induce the belief that the defect will be remedied, and it is difficult to conceive what other thing than a promise, express or implied, can be regarded as sufficient to induce such a belief. We find on examining the later edition of Dr. Wharton's book that he adds to what is copied from the earlier edition by counsel these vv'ords : "Such confidence being based on the master's engagements, either express or implied," and modifies the statement in other re- spects. Wharton Negligence (2d ed.), § 220. This author is, indeed, inclined to condemn the exception to the general rule, even as he states it, for he says : "The only ground on which the exception before us can be justified is, that in the ordinary course of events the employee, supposing the employer has righted matters, goes on with his work without noticing the continuance of the defect. But this reasoning does not apply, as we have seen, to cases where the employee sees that the defect has not been remedied, and yet intelligently and deliberately continues to expose himself to it." Wharton Negligence (2d ed.), § 220. The rule which we regard as sound in principle and supported by authority may be thus expressed : The employee who continues in the service of his employer after notice of a defect augmenting the danger of the service, assumes the risk as increased by the defect, unless the master expressly or impliedly promises to remedy the defect. The promise of the master is the basis of the exception. If the promise be absent the exception cannot exist. In support of our conclusion we refer to these authorities : Russell v. Tillot- son, 140 Mass. 201 ; Linch v. Sagamore Mnfg. Co., 143 Mass. 206; 42 — Rein HARD Cases. 658 DUTIES OF PRINCIPAL TO AGENT. Hatt V. Nay, 144 Mass. 186; Buzzell v. Laconia Manfg. Co., 48 Maine 113 \'j'] Am. Dec. 212, 218, and authorities, n.) ; Galveston, etc., R. R. Co. V. Drew, 59 Tex. 10 (46 Am. Rep. 261 ; Webber v. Piper, 38 Hun 353 (33 Alb. L. J. 64) ; Pennsylvania Co. v. Lynch, 90 111. 333; Wood Master and Servant, 21 ; Beach Cont. Neg. 372. The rule absolving the servant from the assumption of risks is an exception to the general rule, for the general rule is that the serv- ant does assume all the ordinary risks of the service he enters. There must, therefore, be some ground for the exception, and the only solid ground that can be found is the inducement held out by the agreement of the master. If this be not so, then an employee at his first entrance into service might object and protest, and suc- cessfully claim that he was exempt from the perils of the service. Or, if our theory be not sound, a mere complaint or objection might, in effect, overturn the general rule, and this would result in confusion and uncertainty. We can see no way to hold that the servant is exempt from the known risks of his service where there is no express or implied contract on the part of the master, without completely nullifying the general rule. The servant is at liberty to quit the service, and if he remains after knowledge of its danger he assumes the risks, even though he may object or complain, un- less he is induced to continue by a promise of the master to remove the cause that augments the danger, since, if this be not true, it must be true that any objection or complaint made at any time will absolve him from the risk, and this conclusion cannot be sustained. As the exception concedes and tries the general rule, it cannot be allowed to destroy it, for if it were allowed to do this, it would cease to be an exception. Sweeney v. Berlin, etc., Co., loi N. Y. 520. The evidence in this case, as counsel concede, shows that a lantern was essential to the service the appellee undertook to perform ; that, as the appellee knew, without the lantern the act which he was en- gaged in performing subjected him to great danger, and he was in- jured while attempting to perform it. Nor does the counsel for the appellant, as we understand his argument, contend that it was not the duty of the company to provide the lantern, nor does he ques- tion the authority of the person to whom the appellee made appli- cation for one to act for the company in such cases. The central position assumed is, that the evidence does not show any promise. This is the question presented to us, and the question to which we at this point limit our decision. We are, therefore, required to de- termine whether there is evidence fairly supporting the verdict on this subject, and in doing so we must take that which the jury deemed credible and trustworthy. Julian v. Western Union Tel. Co., 98 Ind. 327. We cannot sustain the verdict unless we find in the record evi- dence tending to prove that a promise to remedy the cause of the PREMISES AITL. that ter ! by it. i danger of the ■A. - promise in di iced • acquired knowledr--- :'s failure to fuv r: the promir- If either be omise th • :-■€ to con danger, and if no .. the appellee, for iii the position that the •service. The appellee's arirun tne evidence s]> " master's agent case in a distinct |. to the neglect oi and was characterized h di-awal of the promises remark indicating at H' be delayed. That ' pectation that the r, for the fulfilment of the master to dc and that he was doin^ ' and could have doiv^ - as to the track the train being made up by a sudden jar from „ expect, and had no r.-n^c: taken no precaution." In substance, the a promise to furni:.. fendant's agent acctis. 1 p!; told him he would be ' ' was no promise at all. " t. There was no rc' Want's service till a : ,- swears that a-; ould get a larif •c without any expec ! id get him a lantern \u :,. i, . ation he threatened to lamni ^^ did not care for plaintiff's s, promise to fumish a lantern -r relieve ^ from tb -:'rn for ; dav , ■ice af- )is em- •■- must 'ed under rn. Th -.jistence oi .tie . rds, but there was nc -hing but an angry, peuiLur, rnent of the promise might in the service with the ex- "ty, and looked every night he was sent by the agent -' in which he was injured, e location of movine cars. :, havinr i. from ' and agamst 6=;8 PRINCIPAL TO .viain; 113 KJ"^ i\\V' etc., K. R. Co. V. y PiiMjf, 38 Hun 353 90 '11. 333 ; Wood The rule absolvi. exception to t^v ant does assun: must, therefori solid ground < agreement his first €1 cessfuUy ( On if 01. r in eii CO- '• St i.=^ c< to quii he as:-; less hv the cau.v. must be ti Cc 520. The evidence . . was essential to th. as the appellee ' gaged in perfr jured while at. appellant, as ^^ .;:-. Co. 48 12, zyr-, ijiG :-:Tnorir' >jalveston, Tex. 10 (46 Arn. K' V^bber v, . L. J. 64) ; Pen Cynch, id Servant, 21 ; ;. 372. rvant from the assuiv! , is an for the general r; > ; serv- iisks of the serv! There ;d for. the excepiv. , nu: uic only is the inducement liehl out by the ■ be not so, th' ^tployee at \'X object an. , and suc- rnpt from the perils 01 the service. f mere complaint or objection might, i rule, and this would result in e can see no way to hold that the wn risks of his service where there " on the part of ' cr, without al rule. The s nt liberty aains after i- danger ■;.igh he may > , , m, un- '•e by a promise of tlie masiijr to remove danger, since, if this be not true, it . or complaint made at any time will this conclusion cannot be sustained. ! tries the general rule, it cannot be were allowed to do^ this, it would ■ mey V. Berlin, etc. Co., loi N. Y. :.el concc- Uee und< •.<; iantern th nim to great "t. Nor .■unif'Dt, . the duty of the company to piuvide th- tion the authority of \\v' r.erson to wh' cation for one to ' 'le company position assumed i; e evidence • This is the questi- ted to us, ai at this point limit -ion. W. temiine whether il \idence this subject, and in vioing so we deemed credible rmd trr.-tvcrthv. Co., 98 Ind. 3 We cannot t... .c.... u,,, ,.,..... ,,, dence tendmg to prove that a promise that a lantcra iorm ; that, he was en- he was in- ' sei for tlie it was not does he ques- :e made appli- The central iirci! i',' '1'- verdirt Oil ..; the recoi'. . V the cause of th ■ PREMISES — APPLIANCES — ASSUMPTION OF RISK. 659 augmented danger of the service was made by the appellant, and that this promise induced the appellee to remain in the service af- ter he acquired knowledge of the increased peril caused by his em- ployer's failure to furnish him with a lantern. Two things must concur : the promise, express or implied, and the inducement created by it. If either be absent the case fails. If no reliance was placed on the promise there could not have been an inducement influencing the appellee to continue in the service with knowledge of its increased danger, and if no promise was made the case is still stronger against the appellee, for in that event there could be no possible ground for the position that the employer induced him to continue in the service. The appellee's argument on the point under discussion is, that the evidence shows "three conversations between the servant and his master's agent; the first two being friendly, and resulting in each case in a distinct promise to furnish the lantern. The third was due to the neglect of the master and the persistence of the servant, and was characterized by some angry words, but there was no with- drawal of the promises before made — nothing but an angry, petulant remark indicating at most that the fulfilment of the promise might be delayed. That the servant continued in the service with the ex- pectation that the master would do his duty, and looked every night for the fulfilment of the promise. That he was sent by the agent of the master to do the particular service in which he was injured, and that he was doing his best to see the location of moving cars, and could have done so with a light, but, having none, was misled as to the track the moving cars were on, from having just seen a train being made up on track number three, and was thus injured by a sudden jar from a car on track number two, which he did not expect, and had no reason to anticipate, and against which he had taken no precaution." In substance, the argument of the appellant is this : "Instead of a promise to furnish a lantern there was a quarrel, in which de- fendant's agent accused plaintifif of carrying off the lantern, and told him he would be lucky if he got another in a month. There was no promise at all. This was the last conversation upon the sub- ject. There was no request that plaintiff should remain in the de- fendant's service till a lantern should be furnished. The plaintiff emphatically swears that defendant's agent did not lead him to believe he would get a lantern short of a month, and that he went to work without any expectation that Howells, the defendant's agent, would get him a lantern in less than a month, and in this same con- versation he threatened to lamm the agent because 'it looked like he did not care for plaintiff's safety.' Now, if there had been a promise to furnish a lantern at the end of thirty days, that would not relieve plaintiff from the risk incurred by working without a lantern for that thirty days, when, as he says, he had no expectation 66o DUTIES OF PRINCIPAL TO AGENT. that a lantern would be furnished."' See Stand. Oil Co. of Ind. v. Helmick, 148 Ind. 457. It is true, as appellee's counsel affirm, that there were three con- versations, and that in two of them a promise was made ; but it is also true that the appellee, finding that the promise was not kept, entered complaint, and was told in the last conversation that he would be lucky if he got a lantern in a month. It is likewise true that the appellee did not, after the last conversation, rely on the promise previously made, for he testified that he did not expect to be supplied with a lantern. This is his own testimony : "After I had asked him for the lantern twice, and then left orders twice, I went over early to see him myself, and told him it was dangerous — it was a dangerous place to be without a lantern — and it seemed like it made him out of humor, and he said: 'You may think yourself well off if you get a lantern in a month,' and then I did not say any- thing more to him about it. That was two weeks before I was hurt that I asked Mr. Howells for the last time for a lantern. Well, when he would not get me a lantern, and when he spoke the way he did, I got a little excited, and when I get excited I will say what I please. He said the men need not be carrying their lanterns off, they were all charged up to them. I told him I had not lost my lantern, and had not carried it off, but put it into the box, and that if he would have a box for the night men and a box for the day men they might save their lamps. It was in this same conversa- tion that he told me I would be lucky if I got another lantern in a month. It was after that I had a rough talk with him, because he had insulted me there, because it looked like he did not care for my safety." In answer to this question : "He did not lead you to expect that he was going to get a lantern for you short of a month in that conversation, did he?" the appellee said: "No, sir." He was also asked this question : "And you went on to work in the yard without a lantern, and without any expectation that Howells would get a lantern for you within a month, did you not?" and his answer was, "Yes, sir." The appellee also testified that Howells was the only man he ever asked for a lantern, and thus narrates one of the first conversations : "I told him I had been pretty nearly killed down in the yard once without a lamp, and I did not want to be killed by neglect of having the lamp there ; then I got a little out of fix because he didn't furnish me a lamp, and I told him I had pretty nearly got killed in that yard by being struck by a car, and all that ; that is what I said, and then he promised to get me a lamp." After the most careful study we find ourselves unable to resist the conclusion that the verdict cannot be sustained. We are con- strained to hold that the appellee was not induced to remain in the appellant's service by any promise, express or implied. On the con- trary, the clear and irresistible inference from the evidence is that PRFMI«r the proirns^ .,..■. service, knowing i l-'Ti'- -1, .or lamp, r> i says that ' tioii that How ells This shows the c of Howells, and i' that those word? • before us, we us save that wl., ;; affirm that an Qx\v-\o\f- ter he has acqiiii' ; ' assumes the risk ,. ' promise, expr-:>s ur We do not d-- "i-art f; ordinary care t ) provr for his emplo}v.es , b\il a case as this. 7 :ie m' Car Co. V. Pari er. .supra, ■ Ind. 51 ; PemiS;l.ania Co. ^ It is the apjiii^ ,(;i<)n — the principle it ^--.;r.v chinery and a] not know of t! know of their ■"ithout being i. The employee li-; or by reasonable ^ the assumption th: fe appliances ; b' > can no longer ■ puts an end to hi duty. It is manu l>een performed carir' ■ -c ' ^sumption that it li.iO ■ <:hin the rule that tht which he has kri. liana, etc., R. W Co. V. Stupak, lob iij^' .., 83 Ind. 191. Where there is a promi- continue in the servi'- igth of time, rely ori s the danger of contui ; .;; i so great that a reasonal'ly Railway Co., 100 U. ued in the u that the ided. He \- expecta- a month. !hf» words ■:!n ;)en to firmly settled, l !• > iile, etc., R. V' • III Ind, 212, de by the appellee, and not '.te rule asserts that the ma- ; those who do ■ ■• ,. :^/:v to those v;ho 'ill contmue ce iiployer'v r-' ■ uires kii i" Me rt that •;e •le a- it, it. DUTIES OF PRINCIPAL TO AGEN that a lantern would 1 Helmick, 148 Ind. It is true, as api vers:itions, and that ii is also true that the ap entered complaint, an. would be lucky if he .. that the appellee did promise previously r ■ supplied with a Ian: asked him for the oyer early to see was a dai: ad." See Stand oi Ind. el affirm, tiiat th- three con- them a pr but it ding- that tb^ t kept, Id in the last convc nat he ':ern in a mnv." Ti , ;^e true - the last CO ely on the testified tha; ■■--^rt to be i.-; his own t'. I had \ and then letl jfcurji tuicc, I went •nd told him it was dangerous — it ithout a lanteni- -ar.d it seemed like it made li; >i he said: 'You i think yourself well ofT if ^ ■I month,' and the ot say any- thing mor^ I' at was two week [ was hurt that I ask the last time fr rn. Well. \\ : ; : ' ;i. lantern, and whei. ■ tlie way I-.' . and when I get exc, v what . need not be carryin rns off. ;o them. I told him i )St my 1 it off, but put it in; •■■A tha't -r the night men an*; . ihe day men 1 lamps. It was in t conversa- ti'-" ^' d be lucky if I got ,: mtern in a V- '' had a rough talk v. because he had i. ause it looked li' >t care for my sa; . this question: ' ' cad you to expect that lu' > get a lantern i' »f a month in that conver- •?" the appellet sir." He was also asked ti-. "And you \^ . ork in the yard without a lau - ithout any cX(_v.vi . . .iHt Howells would get a lantern i'hin a month, did \'>a not?" and his answer was, "Yes, The appellee ah>' ' Howe^' n.an he ev( r asked for a lantcn. ■ onversations : "I told him I had • the yard once without a lamp, and I anc to bt 2:]ect of having the lamp there ; then I .. o'li ,-,r . ;!c didn't furnish me a lamp), and I toLi got killed in that yard by being struck b> . . .- ' , dlnl .■ ■ • -^"t r -r,id. -n-' then he promised to geJ nie a lamp. After the most careful study w^ .naUle to resist the conclusion that the verdict can We are con- strained to hold that the appellee \\ in the .rOi ellant's service hv 'av,\ f)romise, c , / . '11 ■."!€ con- the clear ati ible inferen< 1 le evidence is th PREMISES APPLIANCES ASSUMPTION OF RISK. 66l the promise was withdrawn, and that the appellee Continued in the service, knowing its great danger, ^^dthout any promise that the lantern, or lamp, required to make it safe, would be provided. He himself says that "he went on with the work without any expecta- tion that Howells would get a lantern" for him within a month. This shows the construction put by the appellee upon the words of Howells, and it is the only natural and reasonable construction that those words will bear. With this, the appellee's own testimony, before us, we can see no other course consistent with duty open to us save that which leads to a reversal of the judgment. We must affirm that an employee, who continues in the employer's service af- ter he has acquired knowledge of its great and immediate dangers, assumes the risk, unless he is induced to continue in the service by a promise, express or implied. We do not depart from the rule that an employer is bound to use ordinary care to provide a safe working place and safe appliances for his employees ; but we do hold that the rule cannot apply to such a case as this. The rule itself we regard as firmly settled. Indiana Car Co. V. Parker, supra; Krueger v. Louisville, etc., R. W. Co., iii Ind. 51 ; Pennsylvania Co. v. Whitcomb, iii Ind. 212. It is the application of the rule as made by the appellee, and not the principle it asserts, that we deny. The rule asserts that the ma- chinery and appliances must be kept safe as against those who do not know of their unsafe condition, but does not apply to those who know of their unsafe condition, and still continue in the service without being induced to do so by the employer's promise. The employee has a right, until he acquires knowledge of danger, or by reasonable care might acquire such knowledge, to act upon the assumption that his employer will use ordinary care to provide safe appliances ; but when he becomes fully informed of the danger, he can no longer act upon this assumption. Knowledge on his part puts an end to his right to assume that the master has done his duty. It is manifest that one who knows that a duty has not been performed cannot reasonably assert that he acted upon the assumption that it had been performed. The case, therefore, falls within the rule that the employee assumes the risks of all the dangers of which he has knowledge. Pennsylvania Co. v. Whitcomb, supra; Indiana, etc., R. W. Co. v. Dailey, 100 Ind. 75 ; Lake Shore, etc., R. W. Co. V. Stupak, 108 Ind. i ; Umback v. Lake Shore, etc., R. W. Co., 83 Ind. 191. Where there is a promise to repair which induces the employee to continue in the service, then, doubtless, he may, for a reasonable length of time, rely on the promise and continue in the service, un- less the danger of continuance, without a removal of the cause of it, is so great that a reasonably prudent man would not assume it. Hough V. Railway Co., 100 U. S. 213 ; Loonam v. Brockway, 3 Rob. 662 DUTIES OF PRINCIPAL TO AGENT. (N. Y.) 74; Illinois Cent. R. R. Co. v. Jewell, 46 111. 99; Crichton v. Keir, i. C. Sess. Cas. (3d Series) 407. Some of the cases go further and assert that the promise of the employer exonerates the employee entirely, even though the con- tinuance in the service is known to him to be constantly and im- mediately dangerous. Ft. Wayne, etc., R. R. Co. v. Gildersleeve, 33 Mich. 133. We are not inclined to adopt this view. Our opin- ion is, that if the service cannot be continued without constant and immediate danger, and the danger and its character are fully known to the employee, he assumes the risk if he continues in the service. It is a fundamental principle in this branch of jurisprudence, that one who voluntarily incurs a known and immediate danger is guilty of contributory negligence, and we are unable to perceive why a promise should relieve the party injured through his own contribu- tory fault. If the danger is not great and constant, then such a promise may well be deemed to relieve him ; but where it is great and immediate, and is of such a nature that a prudent man would not voluntarily incur it, a promise does not nullify or excuse the contributory negligence. Even if there be a promise by the em- ployer, the employee must not subject himself to a great and evident danger, since this he cannot do without participating in the em- ployer's fault. The community have an interest in such questions, and that interest requires that all persons should use ordinary care to protect themselves from known and certain danger. A man v/ho brings about his own death or serious bodily injury sins against the public weal. All must use ordinary care to avoid known and im- mediate danger, although it is not the assumption of every risk that violates this rule. When the line of danger, direct and certain, is reached, there the citizen must stop, and he cannot pass it, even upon the faith of another's promise, if to pass it requires a hazard that no prudent man would incur. Proceeding upon a somewhat different line of reasoning, other courts have reached the same con- clusion as that to which we are led. Ford v. Fitchburg R. R. Co., no Mass. 240; Crichton v. Keir, supra; Couch v. Steel, 3 E. & B. 402. The general principle which rules here is strongly illustrated by the cases which hold that a passenger cannot recover for an in- jury received while acting in obedience to the directions of the con- ductor in whose charge he is, where obedience leads to a known danger which a prudent man would not voluntarily incur. Lake Shore, etc., R. W. Co. v. Pinchin, 112 Ind. 592; Cincinnati, etc., R. R. Co. V. Carper, 112 Ind. 26. If the rule prevails in such cases, much stronger is the reason why it should prevail in a case like this, where ordinary care is required of employer and employee alike, while, in the class of cases referred to, the highest degree of practi- cable care is required of the carrier and only ordinary care exacted of the passenger. It is probably true that the promise of the employer, when relied emt3lov in the jjpellee \ was sc --led lli.- : here w, .■ry. Judgment c unco; .... Jecision hether there g him f " he appt;. '=rs. vVe .ui--: •;o make cui a varsaw v. Dunlap, •ong, 112 Ind Tt",', '.'. Co, V. Mo! Dunn, 38 1 'ec. 329). Where, as i our duty to ony is ' ■^re is n. ■cide the legal ei: '! errur. ' the record, a:. _., here could be no recovery. ■spends upon the question - the appellee, exonerate ■icinnati iry find the '% and tliat 1- Iter of law; r of law that there I no c;i?r- wlir'rr- n ( T- iV> J • , ■ SOI ! tmuance in the se; nil di^tdv 53 ^Ii<:l^' ion is, that ir ' ■ immediate dan: to the employ It is a fundan one who voIuij of contribi ' promise ?^ tory f richton v and asi /ee enti n to hii ■tc, K. ♦"o fdo' pore OTIS )rdinary ca are led. 1- V reacueu, : upon the that no pruut: different line a elusion as that to no Mass. 240; Cr 402, The general by the cases which i!iry received while • in whose c r which a pi Siioie, etc., R. W. G ' R. R. Co. V. Carper, i : vuch stronger is the r where ordinary care i:, .v.^..;. ., while, in the class of cases referrer cable care is required c" ' — ■ of the passenis^er. ' " : i.!e thjA, ; stop, rinc iii'^e, if to ]. .v II h r, I ^nld ■ U 'U- )d im- ■ ■■ ve, : nd ,11 risk if he <: rUic It-inch -•. irnmed.. .-'.le un.-' ' v\' vvny a Mred thr , contribu- ou such a •t is great would _;^U .:, ^c .! .r- the .ven if there be '1- ot subject himse^ ■* 5t do without p. have an inl; . :3Uon-, ■ V care 11 who 1st the ;)d im- > /..k th-t : certain. -s it, evc!) a hazard somewhat same con- R. R. C 3 E. & 1;.. illustrated ^ . I for an in ns of the co: • a ~ known :ur. Lake anati, et:., ■ such cases, 1 case like th;>, :>11 iVlVf'' 'I i' hcii rei! I PREMISES APPLIANCES ASSUMPTION OF RISK. 663 on by the employee, will rebut a presumption of contributory negli- gence in cases where the danger is not great and immediate, but this presumption yields whenever it appears that the employee vol- untarily incurs a known and immediate danger of so grave a charac- ter that it would deter a reasonably prudent man from incurring it. In the case before us the testimony convincingly shows that the appellee knew the danger he encountered, and it shows, also, that it was so great and immediate that a prudent man would not have assumed the risk it created. It results that even if it were conceded that there was a promise, and a reliance on it, there could be no recovery. Reluctant as we are to set aside a verdict which has passed the scrutiny of a learned trial court, we cannot do otherwise in this instance. Judgment reversed. Filed December 27, 1887. On petition for rehearing. Elliott, J. — In a very forcible and able brief, counsel for the ap- pellee contend that we departed from the established rule and weighed the evidence. In this counsel are in error. We took the evidence as we found it in the record, and decided, on the uncontradicted evidence, and there could be no recovery. The decision of the case, in the main, depends upon the question whether there was a promise, relied upon by the appellee, exonerat- ing him from the consequences of his negligence in remaining in the appellant's service after he acquired full knowledge of its dangers. We have held in many cases that where the evidence fails to make out a case the judgment will be reversed. City of Warsaw v. Dunlap, 112 Ind, 576; Cincinnati, etc., R. W. Co. v. Long, 112 Ind. 166; Riley v. Boyer, j6 Ind. 152 ; Pittsburgh, etc., R. W. Co. V. Morton, 61 Ind. 539; Roe v. Cronkhite, 55 Ind. 183; Ray V. Dunn, 38 Ind. 230; Crossley v. O'Brien, 24 Ind. 325 (87 Am. Dec. 329). Where, as here, there is only one witness upon a pivotal point, it is our duty to apply the law to his testimony, and if, under the law, the testimony is not sufficient to sustain a recovery, so adjudge. Where there is no conflict of testimony the court must necessarily decide the legal effect of the testimony in the record. In doing this there is no departure from the long-settled rule to which counsel refer. The question of negligence is never one exclusively of fact. The jury find the facts, but if from the facts one inference only can be drawn, and that is that there was negligence, it must be so adjudged as matter of law ; or, conversely, if it can be clearly affirmed as mat- ter of law that there was no negligence, the court must so declare. In no case where negligence is the issue does the court entirely 664 DUTIES OF PRINCIPAL TO AGENT. abdicate its power, for as to the law it must always rule, although, in some instances, the jury ultimately decide whether there is, or is not, negligence; but in every case the court must declare the law. In ruling that there is no negligence the court does not rule upon a question of fact. Judge Holmes says: "Where a judge rules that there is no evidence of negligence, he does something more than is embraced in an ordinary ruling that there is no evidence of a fact. He rules that the acts or omissions proved or in question do not constitute a ground of legal liability, and in this way the law is gradually enriching itself from daily life, as it should." Holmes Common Law, 120. This principle applies here, for we rule, not that there is no evi- dence of a fact, but that the facts proved do not create a legal lia- bility. It has been very often decided by our own and by other courts that, where the facts are undisputed and unequivocal, the court must apply the law to them. Wabash, etc., R. W. Co. v. Locke, 112 Ind. 404, and cases cited; Pittsburgh, etc., R. R. Co. v. Spencer, 98 Ind. 186, and cases cited ; Counsell v. Hall, 5 New Eng. Rep. 462, n. The doctrine that the welfare of society forbids a man from thrusting himself into immediate and certain danger without press- ing necessity, remounts to the case of Hales v. Petit, i Plowden 253, a case made famous because of its having suggested, as many sup- pose, to Shakespeare, the grave-digger's scene in Hamlet. Although the reasoning of that case is quaint and fanciful, still the principle asserted is a wise one, and has long formed part of our juris- prudence. We did not assert in our former opinion that an employee, who takes a risk that imperils his safety, cannot maintain an action; but we did decide that if he, knowingly and deliberately, assumes a risk that will lead him into immediate and certain danger, he cannot recover, although his employer had promised to remedy the defect. The authorities we cited sustain this principle, and we applied it to the uncontradicted evidence. Where, as here, there is only one witness to a material fact, we must act upon his testimony, and in applying a principle to it we do not weigh evidence. Cincinnati, etc., R. R. Co. V. Long, 112 Ind. 166; Palmer v. Chicago, etc., R. R. Co., 112 Ind. 250. It may be that on another trial the evidence may be such as to take the case out of both the rules here stated, for it may well be that additional evidence will explain the testimony given by Mr. Watson, or prove circumstances giving it a different meaning and effect ; but as the record presents the case to us, we find by applying the law to the evidence that the verdict is not supported. Petition overruled. court ol c- facturing <. been sustained !' the company's ; machinerv to u. The been <■ jured ' on a ir. a circular - «. "bunk" — '' pail, such ^^ out ir,' Tivnati >i all the n;cii dnd uty to manage and control the ivv. was kept in good ord-: rind conditi- ■'■' On the wlio had fni - ', ■•, to go to work t: the jointer ui bad con .saying in reieii .l ■)c something u j' rew staves — get '. vvill take it upstav :nced jointing, ;■ .>unk, his hand wa- H.s stated in hi* i-ei' ' had he:! 10 had f. ■■■ r a to keep on wo: . "t the court of l • ence of the c .1.11 to the jury, l:i'. c consideration of tl- > ■r the defendanr- .V," and that M. ing dangerous macliint-r^ 11 i." pRiMCir. al>dic;!ie its power, f in &ome ii;>!r;iir.-s ■ is not, In rijitji\i^ ;urtL tiii a question of fact. there is no evident' is embraced in an t;:ct. He rules i' constitute a gr gradually enric^ Common Law, ... This principle apr dence of a f bility. H- !' courts court u Locke, 112 Spencer. oF Eue. R law it T^ ■lately ti .'.se the c u,^ence th' s says : ice, he ( 'Sf that the law. tnan '^f a :1S pi OvC»i t.j( r.nd in th- ; we rule, not that there is no evi- 's proved do not create a legal lia- lecided by our own and by other ■ and unequivocal, the .; 1. etc, R. W. Co. V. leu; Piitsbi . R. R. Co. v. princij 'i( iVT-ontradictc . jicre, as '' \ mater. nust act up- .ii c^i'i''; '"ii ^ princip^r lo not weigh . ;mv,>,,..„ . etc., R. R. Co. V. Long, 166: Palmer , -tc, R. F Co., 112 Ind. 250. It may be that on p' nch aK 1" take the case out 0* that additional evii; Watson, or prove c meaning and effect ; but as the re .. , . ^ .^ ■--.•., • ]:\' TlUluivP' the law to the evidence that the verdi' Pctiti-n overruled. PREMISES APPLIANCES ASSUMPTION OF RISK. 665 MANUFACTURING COMPANY v. MORRISSEY. 1883. Supreme Court Commission of Ohio. 40 Ohio St. 148. Error to the district court of Lucas county. Patrick Morrissey, defendant in error, commenced an action in the court of common pleas of Lucas county against the Union Manu- facturing Company, plaintiff in error, for damages alleged to have been sustained by him while in the service of the company, through the company's negligence in furnishing him hazardous and unsafe machinery to use, and placing over him an incompetent foreman. The company was, in the year 1878, and had for some time before, been engaged in manufacturing wooden pails. Alorrissey was in- jured by having a portion of his hand cut off while he was at work on a machine known as a "pail-lathe," which was composed in part of a circular saw, a jointer, and a bed or carriage commonly called a "bunk" — all used in the several operations necessary to make a pail, such as cutting off the staves to equal lengths, joining them, turning out the inside, turning off the outside, etc. One Tivnan was the foreman of the room in which Morrissey was at work when injured, and as such had charge of all the men and machinery in the room. It was the foreman's duty to manage and control the men, and see that the machinery was kept in good order and condition. On the morning of the injury, the foreman directed Morrissey, who had for sixteen months been at work under him on the lathe, to go to work on the part known as the jointer. He had worked on the jointer before this time for about six months. The jointer was in bad condition, and Morrissey called the foreman's attention to it, saying in reference to what is known as the bunk, "There ought to be something done with that." The foreman replied. "You joint a few staves — get out some staves to keep these fellows going — and I will take it upstairs and get it fixed." Morrissey thereupon com- menced jointing, and shortly after, by reason of the defect in the bunk, his hand was forced against the saw teeth, and he was hurt as stated in his petition. About two weeks before he was injured, he had heard the foreman say to one of the workmen, named Fuller, who had called his attention to the bunk's need of repair, "I want you to keep on working until we get a lay-off and I will get it fixed." In the court of common pleas, the testimony tending to show the negligence of the company, and all the facts in the case having been given to the jur}-, the court upon the motion of the defendant took the consideration of the case from the jury, and directed a verdict for the defendant — charging, that it was "a question entirely of law," and that Morrissey "had been guilty of gross negligence in using dangerous machinery when it was out of order, * * * ^1. 666 DUTIES OF PRINCIPAL TO AGENT. though," as the court further charged, "there was no dispute but that the defendant was guilty of gross neghgence." Morrissey by his counsel excepted ; filed a motion for a new trial ; and upon judgment for defendant being rendered, took bill of ex- ceptions embodying in it all the testimony and charge of the court ; and filed his petition in error in the district court, where the judg- ment of the court of common pleas was reversed, and the cause re- manded for a new trial. The case is here on petition to reverse the judgment of the district court. DiCKMAN, J. — There is no evidence that there was any careless- ness on the part of Morrissey the defendant in error, in his mode of operating the machine through whose defects he was injured. On the morning of his injury — from the time of his commencing Vv'ork, up to and at the time he was injured — he ran the machine much slower than usual, on account of its bad condition, and in order to avoid being hurt. The contributory negligence imputed to him, consisted in his knowing that the part called the "jointer" was out of repair, and could not be safely used, and in thereafter remaining in the service of the company and continuing to operate that portion of the machine. For that reason, the court below took tlie case from the jury, and directed a verdict for the company. The question of contributory negligence on the part of the plaintiff is generally a mixed question of law and fact ; but, it is only when the facts are be- yond dispute and admit of no rational inference but that of neg- ligence, that the court has the right to apply the law without the aid of a jury. The defendant in error, while in the employment of the company, was under the supervision and direction of a foreman, v/hose duty it was to manage and control the workmen, and see that the machinery was kept in good order and repair. As soon as Morrissey discovered that the part of the machine upon which he was working was in a condition unsuitable for use, he complained of the same to the foreman, who promised him that the defects in the machine would be remedied, and ordered him to continue at his v/ork. He thereupon began work at once at the jointer, and in a short time thereafter, was injured through its defects, before any steps were taken to remedy them. As a fact which was taken to be beyond dispute, the court charged the jury that the company was guilty of gross negligence. But, the court, in view of another fact beyond dispute, viz. : that Morrissey worked at the machine with knowledge of its defective condition, evidently considered it a settled principle, that such knowledge was, as matter of law, conclusive of contributory negligence on his part ; and ignored the importance of other material questions of fact not beyond dispute, which might tend to qualify or limit the legal effect of such knowledge, and which should have been submitted by the court to the consideration of the jury. After the promise made to Morrissey himself by the foreman i the same tL ing suv the CGI, the machine. . the company, i,'i put the jointer to such an extt use it, even afl tions Oi I'l-irv. ■■ the same, . that of neg the fact tb: and rti ' The- ant element in there ': drcun .~ -ume the ai^- i:i3t rendered ; the part of ot. by a promise to . -. i of law, an answe- omitted to ne cannot be quire their ' '^* of authiM ,, , ■3 Vi Worthingtoi ii the ' ' and tilt n they d the Vie be depri -c rc- On !'■ A"," i^'-ii will -frOlT! 1 the sam: LcJiine vvv^iu )rk. He the rime the ere tak aid CO.:' crood '. ■X of tiic !, a,ii(i ■- As so which i omplaitit ects in t' itlii-T rnaieriql •::• ' :Ufy L;r iuuii. . ' : been subm: r the promise in . issey w ■ ,.,.don. ''V'' t^e was, tiis part : fact nv -V the forcii;.. PREMISES APPLIANCES — ASSUMPTION OF RISK. 667 that the jointer should be "fixed," and after hearing- the foreman promise the same thing two weeks before to another workman, it be- came a material question of fact for the jury to determine, under proper instructions from the court, whether Morrissey after acquir- ing such knowledge, continued such a length of time in the service of the company, as to constitute a waiver on his part of the defects in the machine. Whether he afterwards remained in the employment of the company, because of his reliance on the promise of the foreman to put the jointer in repair; and whether the jointer was out of repair to such an extent, that a man of ordinary care would not continue to use it, even after a promise to put it in good repair — were also ques- tions of fact, which should have been left to the determination of the jury, under proper instructions from the court. But it could not, in order to take the case from the jury, be said with reason, that knowledge alone of defects in the machinery and continuing to use the same, as matter of law, admitted of no rational inference but that of negligence, when such knowledge is taken in connection with the fact that Morrissey complained to the foreman of the defects, and received from him a promise that they should be remedied. The court below applied the doctrine in all its latitude, without any qualification in the light of other facts and circumstances of the case, that if one knowingly and voluntarily exposes himself to danger by using dangerous machinery, he cannot be said to be without any fault or negligence on his part, and therefore cannot recover for injuries suffered by him in consequence. That a knowl- edge of the unsafe condition of the machinery used, is a most import- ant element in detennining the question of contributory negligence, there can be no doubt. Alone and unexplained, it may, under some circumstances, be conclusive that the injured party was willing to assume the attendant risks, and waive all objections to the defects that rendered the machinery hazardous. But, such knowledge, on the part of one induced to remain in the service of an employer by a promise to remove the cause of danger, is not of itself, in point of law, an answer sufficient to exonerate a defendant, who has omitted to supply machinery that is safe and proper. Relying upon such inducement held out by their employers, the most prudent workmen will often take risks, not merely on account of their own necessities, but in consideration of their employers whose interests require their continued service. Under such circumstances, the weight of authority is in accord with the language of Willes, ]., in Holmes v. Worthington, 2 Foster & Finlason 533. "If the defendants knew of the defect and undertook to repair it, and the plaintiff went on working, relying on their repairing it, then they may be liable. If the plaintiff complained of the defect, and the defendants promised that it should be remedied, he is not to be deprived of his remedy, merely because, relying on their prom- ise, he remained in their employment." 668 DUTIES OF PRINCIPAL TO AGENT. To the same effect was the judgment in Clarke v. Hohnes, 7 Hurl- stone & Norman 937, in the exchequer chamber on appeal from the decision of the court of exchequer. In that case, the plaintiff was employed by the defendant to oil dangerous machinery. At the time the plaintiff entered upon the service, the machinery was fenced, but the fencing became broken by accident. The plaintiff complained of the dangerous state of the machinery, and the defendant promised him that the fencing should be restored. The plaintiff, without any negligence on his part, was severely injured in consequence of the machinery remaining unfenced. It was held, in the exchequer cham- ber — affirming the judgment of the court of exchequer — that the de- fendant was liable for the injury. Chief Justice Cockburn, in deliver- ing his opinion, very forcibly draws a distinction between the case of an employee who knowingly enters into an engagement to work on defective machinery, and that of him, who in the course of his employment discovers its defective condition, but is induced to remain in the same service by the master promising him to remedy the defect. If the master in such a case fails to fulfill his obligation, the employee cannot be held to have waived his right to hold the master responsible. The rule recognized in the English courts, has been followed by the supreme court of the United States in the instructive case, Hough V. Railroad Co., 100 U. S. 213. In that case, the engineer had a knowledge of the defect in the engine, and complained thereof to both the master mechanic and the foreman of the roundhouse. They promised that it should be promptly remedied. But, the court below seemed to attach no consequence to the engineer's complaint, or the promise made to him. Under the instructions given, if the engineer worked the engine with knowledge of its defect, the jury were to find for the company, although he may have been justified in relying upon the promise made to him that the defect should be remedied. The instruction in that branch of the case, involving the question of contributory negligence on the part of the engineer, was considered by the supreme court misleading and erroneous. Justice Harlan cites approvingly the language of Mr. Cooley, in his work on Torts. "If the servant having a right to abandon the service because it is dangerous, refrains from doing so in consequence of assurances that the danger shall be removed, the duty to remove the danger is manifest and imperative, and the master is not in the exercise of ordinary care unless or until he makes his assurances good. Moreover, the assurances remove all ground for the argu- ment that the servant by continuing the employment engages to assume all risks." In view of the whole current of authority, and in the light of reason, we are led to the conclusion, that under the circumstances of the case at bar, Morrissey's knowledge of the defective state of the machine which he was using and continued to use, was not, as matter . concl- ' - ledge, he into consideration by t; PtT/-! circumstances, in ence contributed I he judgni' ■ Judgment ar Sucii 1880 Appeal fro: Action to vi resulted from the ' and safe coverin" was employed, by such saw, an" and partly over tJv.: to pass in the complaint will ant appeals from complaint. Cole, C. J.— W'l .'perating the t^ the unsafe con was not coverv the narrow pa ening and loos . '-cnowledge. T)' v to it, if unsate anrl .y a person of cor^ ''■ risk incident to t! ' ^ider such circun. ■ the injury he ^ i'e machinery an-' Accord: Roux v. i . Co., 112 Wis. i>!t Some of >ncf. or 'he futurtr. w >:• ih.-, , I 11 Gunning System v. 1 iiiiv.. >,-, iv •.,,■ a defec; vant is ■ n, with V _ stands as fuiiy, as the master ;* m not pro e-mill, in wh-.^.. ife and proper ]» to project over ..- hich the plaintiff was ' -s. Other allegations ci ti; the opinion. The defervl a general demurrer red upon U owneu n -.ill. the farr 668 DUTIES OF PRl r ; the same effect was the judgment in Clai -s. 7 Hur. rman 937, in th'e exchequer 'J "; an the the court of ^Kchenuer. In if was employed by the dcf i danger. e time the plaintiff entered .vice, tht d, but the fencing became cident. The pla; led of the dangerous - .,, linery, and the <{■ mised him that the ft -•".stored. The pla' It any negligence on 1 .rely injured in of the machinery rem; It was held, in {]■, ■ham- ber — afifirn • • he court of < iie de- fendant \v:. Chief Justs* icliver- ing his opii \vs a distinction uetween me case of an emi^l IV 'jrs into an eng^igement to work on defects of him, who in the course of his employ/..; .' (elective condition, biu is induced to reni:ni! in V- •y the master promising him L to remedy iV. 'i a case fails to fnltill his olnigation. »}•■■- have waived his nght to hold the iiglish courts, has been foi' -wed I ; ed States in the instructive ca^' S. 213, In that case, the engine; I the engine, and complained there. and the forem- ' e roundhouse. ' be promptly re: ]->vt. the court be tow '^ce to tl: complain' or the j ■r the ir. en, if tb. engineer v n knowledge 1. the jur were to find, . • i though he r n. justifies in relying upon ■ le to him tli, should d remedied. The , ^_ 1. .i_ _ living th' t|Ue-tion of con:-. ineer, va- considered by the -.• . niisleao. -. Justi'-' Harlan cites appro- ■guage ■■ ■ his woii oii Torts. "If the ng a ri:' ."11 the serv'ic; because it is dange;i . : . 1..^ from 1 on sequence oi assurances that the danger shall be rer [ty to remo\t' the d.-inger is manifest - ■ •^-■' '-•'V-. ' • not in t];- cxcr; ise of ordinary c;^ ssurancc- .L;i:odi. Moreover, the ; !-r the arg nicai that the servant at engages '. assume all risks." In view of the whole current (;f rr.t'inr' ai the light ' reason, we are led tothe conclu- cumstances the case at bar, Morrissey's knou •.. .ve state of tl irj.'rchinc- wlV'ch he was using and coni vvas not, as matte JH PREMISES — APPLIANCES — ASSUMPTION OF RISK. 669 of law, conclusive of contributory negligence on his part. Such knowledge, how^ever, w^as a prominent fact in the case, to be taken into consideration by the jury in connection with all the other facts and circumstances, in determining the question, whether his own negligence contributed to the accident by which he was injured. The judgment of the district court must be affirmed. Judgment accordingly.^ STEPHENSON v. DUNCAN. 1889. Supreme Court of Wisconsin. 73 Wis. 404. Appeal from the circuit court for Taylor county. Action to recover damages for personal injuries alleged to have resulted from the defendant's negligence in not providing a proper and safe covering for a saw in his shingle-mill, in which the plaintiff was employed, and in not providing a safe and proper passage-way by such saw, and in allowing the saw to project over its frame and partly over the passage-way along which the plaintiff' was obliged to pass in the performance of his duties. Other allegations of the complaint will sufficiently appear from the opinion. The defend- ant appeals from an order overruling a general demurrer to the complaint. Cole, C. J. — When the plaintiff entered upon his employment of operating the machinery and shingle-mill owned by the defendant, the unsafe condition of such shingle-mill, the fact that the saw was not covered, and that it projected over its frame partly across the narrow passage-way along which he was obliged to go in tight- ening and loosening the belt, were all matters presumably wathin his knowledge. The condition of the passage-way and the relation of the saw to it, if unsafe and dangerous, would be seen and comprehended by a person of common intelligence, and the plaintiff assumed the risk incident to the service when he undertook the employment. Under such circumstances, the plaintiff could not maintain the action for the injury he sustained because the defendant failed to provide safe machinery and did not cover the saw with a substantial cover- ^ Accord: Roux v. Blodgett Lumber Co., 85 Mich. 519; Yerkes v. North Pac. Ry. Co., 112 Wis. 184. "Some of the courts have drawn a distinction between a promise to repair at once, or within a reasonable time, and a promise to repair at a stated time in the future." Werner, J., in Rice v. Eureka Paper Co., 174 N. Y. 385, 393. In Gunning System v. Lapointe, 212 111. 274, it was said that the master's promise to repair a defect does not suspend the servant's assumption of the risk where the servant is engaged in ordinary labor or the tools used are of simple construction, with which the servant is as familiar, and which he un- derstands as fully, as the master. 6/0 DUTIES OF PRINCIPAL TO AGENT. ing nor provide a safe passage-way in place of the defective one ; for, as we have said, he must be held to have assumed the risk by accept- ing and remaining in the service with knowledge of the existing de- fects in the machinery. The rule of law upon this subject has been laid down by this court in the following language: "It is well settled that the master may conduct his business in his own way, although another method might be less hazardous ; and the servant takes the risk of the more hazardous method as well, if he knows the danger attending the business in the manner in which it is conducted. Hence, of a servant, knowing the hazards of his employment as the business is conducted, is injured while employed in such business, he cannot maintain an action against the master for such injury merely because he may be able to show that there was a safer mode in which the business might have been conducted, and that had it been conducted in that mode he v/ould not have been injured." Naylor v. C. & N. W. R. Co., 53 Wis. 661 ; Hobbs v. Stauer, 62 Wis. 108. These decisions are all we deem it necessary to cite in reply to the argument that, as between master and servant, it is the duty of the former to provide suitable means and appliances to enable the servant to do his work as safely as the hazards incident to the em- ployment will permit. This is undoubtedly the general rule, but it cannot apply here, for the reason that the plaintiff must be deemed to have entered upon the employment with full knowledge of the existing defects ; therefore he assumed the risk. The fact that the saw was not covered, that the passage-way was narrow^ and danger- ous, would be seen at a glance. But probably the liability of the defendant was not intended to be rested upon the ground that the machinery used was not originally in a safe condition, for it is further alleged in the complaint that about ten days prior to^ the accident the plaintiff informed the de- fendant of the defective and dangerous condition of the shingle-mill, saw, and passage-way, and requested the defendant to repair the same, and to provide a suitable and safe passage-way, and to cover the saw, notifying the defendant, at the same time, that he would not remain and work the shingle-mill unless the same were put in a safe condition at once ; that the defendant then promised and agreed to repair the mill, cover the saw, and put the passage-way in a safe condition, and by these promises induced the plaintiff' to remain in his employment about the shingle-mill until he was hurt. If the complaint had stopped here, it might be held tO' state a cause of action, for it would then state a cause of action within the rule laid down and approved by courts of the highest authority, which hold that where the servant, having the right to abandon the service be- cause it is dangerous, refrains from doing so in consequence of as- surances by the master that the danger shall be removed, such assurances remove all ground for holding that the servant by con- tinuing in the employment engages to assume the risk. This doc- PK^Mih;^ .•.\V. it vp the in a verv cietecis 1 lie i Ccl L ».| • all the ciraims' vvant waived h:: - the work, an'! Lihty. "This :: to the jury, nl no doubt that, defect, the seri such a period allowed for its • within any per tion that the proii; (4th ed.), § 215. ploynient after way safe, and ... saw while going t; •^-ntter of law, v. :ded all rca- lur an injury ;. : all re^'^^on^ihl? p make t! ping an . V to tighten •0.-5 10 liii: n. ^' upon the <' :ntift did continr. ^ defendant < •• nied to have 'lie maclv The ill ' — obviui . , and \\;, 'dition the niacin informed him c* ., iired, but neglected : tection of the p' '■ mtiff continued ( :ch he might rr- -Tiise and put tlu' 1 e hold the complaint 670 Dl. ing- nor provide a sa ■ . one ; fo'- ;.s w;- In,:- said, he ; .v> nave ■ •y accept '; .; :v\ ;l !iaining vt with kn- -ririor de- fects 111 the machine of law been laid down by thi? c .nvin.s;' i. •ttled v'-ar the master ough uMther method -. the ri-1. of the morv ;d as wi- attending the 1 ■lanncr iu \>-'..: u Hence, of a ser hazards of his empl business is ■- while employed in he cannot ' jainst the master fo: merely ■ 1 show that there was a .-i.ticr rno(; in whi' > e been conducted and 'ii.it had bc-n c- .^ would not hr injured. ■^';-. 66I;H<erform all the terms ;; be performed, but thn; ent and employ ip large sum of nc :-. defendant. wL .oployment of de- !>ney, the proper' gleet of the plain ■. . The plaintiff, in his lions of the contract aiu. t avers that he has \r< nies that the sui! the defendant h e money was, without an} 43 — Reinhard r«-. •m on a certificat . " ' hs to be due. ■.;;ic' iaim,and states that le plaintiff, in consideration its employ r^ ■ ti- ••. r -.y-^f^ housand doll n. Din lE.T, • I-- PRINCIJ that the plaintiff was injur tfd within suci i efendant's promise as it would be r"^ -or, , Me. to alio ', iuce under the circumstances, for iintiff c( Mployment longer than there ible grr ; file de- fenciant would reii' Ls, and \vovild assume the risk <• .)us conditio -•ry as when he entered -- ce. We hold the defective because it ■ j.r that the plaint i : i'< lie hail a reasona .u-um that the defen promise. The d to the complaint "^h--- . iv-d for this reason. By the ( i.he circuit court is reversed, and the cause rem;/ proceedings according- to law ^"Hi: a unreasonab': c atier such I'T' agreed to be lis em- pl--'- ■ ■ V. Bass. 8i Ai..u . "V f. -■ i , lo same a unreasonab': c atier agreed to be lis em- ■ ■ V. Bass. 8i Ai..u . "V -c, Lo same N. J. L. 451- ■f>c (,-, hi? servant ' - , ,'; rh-jno-,-.-! hy 'jyers' Li ! St. igor x>, sS 71-79; New York h. 600 ; T. 6q. Ch. 149, § I. .^ atutory C Hobbs, in J ■cv. 212. Act, 6 Edw. ■ . ' Green rttcle^- discussing the \V'-iku eu « i>.ompen-,.. imtries. CHAPTER XII. DUTIES AND LIABILITIES OF AGENT TO PRINCIPAL. Section 1. — Agent's Duty to Obey Instructions. RECHTSCHERD v. ACCOMMODATION BANK OF ST. LOUIS. 1870. Supreme Court of ^Missouri. 47 ]\Io. 181. Wagner, J. — Plaintiff brought his action on a certificate of deposit for $2,600, which defendant, by its answer, admits to be due. Defendant, in its answer, sets up a counter-claim, and states that before the plaintiff's action accrued, the plaintiff, in consideration that defendant would receive him into its employ as collector and agent and pay him a salary of one thousand dollars per annum, promised and agreed with defendant that he would carefully and diligently attend to his duties as such collector and agent, and safely and prudently care for and deliver over and account for to defendant any moneys which he might receive into his custody as such agent and collector ; and that defendant, relying upon such engagement and promise, did receive the plaintiff' into its employ as collector and agent, and did pay him his said salary, and did in all things perform all the terms and conditions of said contract on its part to be performed, but that defendant, not regarding his said engage- ment and employment, failed and refused to account for and deliver a large sum of money, to wit: the sum of $2,983.06, the money of the defendant, which came into his care and custody while in the employment of defendant as such collector and agent, which sum of money, the property of the defendant, was, through the fault and neglect of the plaintiff, wholly lost to the defendant. The plaintiff, in his replication, does not deny the terms and con- ditions of the contract and employment as set forth in the answer, but avers that he has in all things complied with the same. He denies that the sum alleged in the answer, or any other sum, was lost to the defendant through his fault or negligence, and alleges that the money was, without any neglect or fault on his part, taken from 43 — Reinhard Cases. 673 674 DUTIES OF AGENT TO PRINCIPAL. him by thieves, robbers, and other persons, whilst he had the same in his possession and was taking extraordinary care of the same for and as the agent of the defendant, and therefore he was not Hable for the same. The cause was tried at special term before a jury, who, after hearing the evidence and being instructed by the court, rendered a verdict for the plaintiff. Upon appeal to general term the judgment was reversed and the cause remanded for a new trial, and from this judgment the case is brought here by writ of error. If the money was taken from the plaintiff by thieves or robbers when he was using ordinary care and guilty of no negligence, he was clearly not liable. But this was a question of fact for the jury to determine upon proper instructions. There was something said in the argument (and it is alluded to in the record) about incon- sistent instructions being given to the plaintiff in the transaction of his business, by the cashier and the note clerk, two of the defendant's officers. Whether the note clerk had any authority to give the orders, or it was the duty of the plaintiff to obey, was not very clearly developed in the evidence, and should be rendered more ap- parent. The first instruction given for the plaintiff is on the subject of con- tributory negligence, and, although not objectionable as a proposi- tion of law, is hardly justified by the evidence. Of its own motion, the court instructed the jury that the plaintiff, as collector for the defendant, was bound to use such care as men of ordinary prudence would have used under like circumstances ; if, therefore, the plaintiff used such care in doing the business of the defendant, he was not guilty of negligence, unless he disregarded reasonable instructions given to him by defendant or its authorized agents. The following instruction asked by the defendant was refused : "Although the jury may believe from the evidence that the moneys in controversy in the counter-claim were taken from the plaintiff' by thieves or robbers, yet the plaintiff is not excused from liability to the bank on that account, if the jury find that such loss by theft or robbery was occasioned by the failure of the plaintiff to obey the instructions given to him by the said, Accommodation Bank or any of its officers thereto authorized." It will be perceived that the view of the court was, that in order to render the plaintiff responsible for disregarding the instructions of the principal, those instructions must be reasonable ; whilst the instruction asked by the defendant asserted the absolute right of the principal to give whatever instructions it saw proper, and the duty of the agent to obey. We suppose that there is no doubt about the established rule at law, that an agent is bound to execute the orders of his principal whenever, for a valuable consideration, he has under- taken to perform them, tmless prevented by some unavoidable ac- cident, without any default on his part, or unless the instructions re- quire him to do an illegal or immoral act ; and it is no defense that he I to act for I visible > occasioned cding ar disreg-aVding ins- Story- Agency, § 192: Hn - '>- St. 394.) It is the dat\ ' : principal, and i . tion, he will nr ; be disregarded ; emergencies, or ii require a breach ' 'i are, however, excc),' •" what has beer •ight within liistruction giv«, and that the in. given. Tudoiix-nt affirnv 'JHNSON Ei A TRAL RAILRO.M) iS^- CoL^x/ ■ >'■ >>T ^.^ >ri'jiAL irom the n was i ety-one bales oi 'r>w, Tr, delivered by the pL., !e transported to A' pie's Line of st. k. The tow ^ lie defendant on ^^<- -^ i- 'lie property at . pie's Line, who , e prohibited by .•: ription. The t- Corning," a fr any and New Yf. his description. of December, and r that fall, that ;,.. the passage to New It is the first duty of an 'rs' Exp. Co., 104 Mass. ; Drnii^ I' thieves, robbers, and , .^session and was tak '!id as the agent of the de'-' ior the same. Thr- - whii. after heariric ' cd a verdict cnt was re^'' ii'om this judg: If the mone} when he was using or was clearly not liable to determine upon in the arg sistent in^' his bn officer '>iiier perso; he same in ;ng extraor' • same for . j'.dant, and not liable tried at si<--. re a jury, and being (he court, iT. Upor rm the .^ause rt il, and 'Ought here by writ the plaintiff by thic -ibbers are and guilty of no ce, he was a question of fac. .iie jury ictions. There was son>cthing said iiiuded to in the record) al>>ut incon- , en to the plaintiff, in the tran.>action of lie note clerk, two of the defendant's rk had any authority to give the of the plaintiff to obey, was not vt ii:e i.o;. "Although in controvi thieves or to the bank on tha or robbery was oc( instructions given ; of its officers there It will be percei' ;:f juHUii 1 il IS (.111 iiif Miljjix'L ui c .igh not objectionaV)1e as a propo: .'.■ the evidence. ' -n motion, at the plaintiff, or for the li care as men of ordinary prudence imstances ; if, therefore, th€ plaintiff ■ iness of the defendant, he was not disregarded rea--^" •'^^" instructions authorized ageni :.ed by the ■' " was refuseu from the ev. it the money: vere taken i, .laintiff by :V is not e.K> .ii liability . i) ihe jury find that such loss by theft n- the failure of the plaintiff to obey the .- tlie said Accommodation Bank or any ized." he view of the to render the plaintit: i -..^^onsible for di of the principal, thosp '^'^tructions mu instruction asked b cndant asseri principal to give wl. . .structions ii the agent to obey. We suppose that t established rule at law, that an agen+ •- of his principal whenever, for a valu. taken to perform them, unless -, oident, without any default on h '.im to do an illegal or immoiai act that in ordc^ about tho the order-^ has undcr- idable a actions r icfense that i OBEDIENCE TO INSTRUCTIONS. 6/5 intended to act for the benefit of his principal. He is still responsible for loss occasioned by any violation of his duties, either in exceeding or disregarding instructions. (Switzer v. Connet, ii Mo. 88; Story Agency, § 192; Hays v. Stone, 7 Hill 128; Wilson v. Wilson, 26 Pa. St. 394.) It is the duty of the agent to adhere faithfully to the orders of the principal, and if a loss occurs in consequence of his voluntary devia- tion, he will not be held faultless. It is true that instructions may be disregarded in cases of extreme necessity arising from unforseen emergencies, or if performance becomes impossible, or if they require a breach of law or morals. (Story Agency, § 194.) These are, however, exceptional cases. But the general rule is as indicated in what has been said above, and the case as made in the record is not brought within any of the exceptions. I think, therefore, that the instruction given by the court of its own motion was objectionable, and that the instructions asked by the defendant should have been given. Judgment affirmed. The other judges concur.^ JOHNSON ET AL. V. NEW YORK CENTRAL RAILROAD COMPANY. 1865. Court of Appeals of New York. 33 N. Y, 610. Appeal from the supreme court. The action was for the value of ninety-one bales of tow, addressed to E. Ludlow, Jr., at New York, and delivered by the plaintifif's firm to the defendant at Little Falls, to be transported to Albany, and to be forwarded thence by the People's Line of steamboats to New York. The tow was received by the defendant on the 29th of November, 1854, and on the arrival of the property at Albany, it was oftered to the proprietors of the People's Line, who declined to receive it, on the ground that they were prohibited by act of congress from transporting freight of that description. The tow was then shipped by the defendant on the "E. Corning," a freight barge in good condition, running in the Albany and New York line, which was accustomed to carry freight of this description. The barge left for New York on the ist or 2d of December, and w^as the last boat in the line that went down the river that fall, that being the close of navigation for the season. On the passage to New York, the tow was lost with the barge. ^ "It is the first duty of an agent, whose authority is limited, to adhere faith- fully to his instructions, in all cases in which they can be properly applied. If he exceeds or violates or neglects them, he is responsible for all losses, which are the natural consequence of his act." Colt, J., in Whitney v. Mer- chants' Exp. Co., 104 Mass. 152, 154. 676 DUTIES OF AGENT TO PRINCIPAL. The cause was first tried before Judge Pratt, and the plaintiff re- covered ; but the judgment was reversed at the general term, which held that upon the foregoing facts that the defendant was not liable for the loss. On the last trial, before Judge Hubbard, further evidence was given, tending to support the allegation made in the complaint, and denied in the answer, that the defendant was directed when the property was received to forward it only by the People's Line of steamboats. On the first trial the plaintiff rested his case, in this respect, on the note made by the defendant at the foot of the entry in the way- bill books, "via People's Line ;" but on the last trial it was proved that when the tow was taken to the defendant, the plaintiff asked Mr. Priest, the freight agent of the company, with whom the con- tract was made, whether the company could forward the tow in ques- tion by the People's Line, who replied that it could, but it would cost more than it would to send it by tow boats. The plaintiff told him that it was so late in the season, that unless the defendant could forward it by the People's Line, he did not then wish to send it, and that he did not care about the extra expense. Priest thereupon re- ceived the goods to be forwarded in that mode. This evidence was imdisputed. It was also proved that there was daily communication by mail and telegraph between Albany and Little Falls. The plaintiff claimed that under these circumstances, the forward- ing of the flax by a tow boat, without notice to the owner, was a breach of duty, and that the defendant assumed the risk by disre- garding the instructions. The judge held otherwise, and granted a nonsuit, which was sustained at the general term. Porter, J. — The defendant undertook to transport the flax to Albany, and to forward it thence to New York by the People's Line of steamboats. On the refusal of that line to receive it, the defend- ant's obligation as a carrier ceased ; and if it incurred any further lia- bility, it was in the character of agent for the owner of the property. In the absence of instructions as to the mode of transportation from Albany, it owed no duty to the plaintiff, beyond the delivery of the property, in the usual course of business, to safe and responsible carriers for transmission to its destination : Brown v. Dennison, 2 Wend. 593; Van Santvoord v. St. John, 6 Hill 157. But when the forwarding agent is instructed as to the wishes of his principal, and elects to disregard them, he is guilty of a plain breach of duty. When he sends goods in a mode prohibited by the owner, he does it at his own risk, and incurs the liability of an insurer : Ackley v. Kel- logg, 8 Cow. 225. It appears in the present case that the contract was made with the freight agent of the defendant, who suggested that it would be better to forward the hemp by tow-boat from Albany ; but the plain- tiff replied, in substance, that it was so late in the season that he send il. ; ; -.to sho\ an express un to New York lu. fendant was clear!; prietors to receive communicated the tions, or it slxn ' ' the hemp for Walker, 9 Pa. Dec. 398) ; Fisi. There is a ■ .:expected err'' safety of tlie pi arose. TIt; owner fron have b' ■ had n(, than to liazarci of navigation, instructions of must be conte^ Contracts 69; logg, 8 Cow. -' The evidenct ch of d'. 'US. Th be ordered, wit' Judgment if Brown and < . with ' >d - -le- pro- '-^ve )U e iienip rather : ■ il, at the close 01 le agent is to ob .... . . iie departs from these, 1 • he assumes: i Parsons <. Story 43; Ackley v. Kd e iun/ to find that there >va= was th • v-w trial 1877. Court HEN. \ppEAT. from juf; as in ar of the - - w "York, which affirri • )n a verdict. This action was for t property of plaintir ier. J 'he facts appear sufticic; 676 ))\: cause was first tried ed; but the ^- ' ' ' hat upon the iOi me loss. ^')m the last tn: ' tending to ^ 1 ■-d in the an- property was rec< steamboats. On the fir?' the note mad' bill books, "v that whe^ Mr. Prie- tract before Judge Pratt, -- -. reverse'' ' ■''•■. cts that Judge Hu; le allegation in.' lie defendant ard it only ■ f rested his case at the foot of l ' but on the las*. 1:0 the defendant L the company, iipany could for\ :> replied that it '1 it by tow boat ason, that unlesr :, he did not ther- extra expense. od in that mode. plaintiff re- ^;ii. which )t liable ce was nt, and ■Q way- nrovf'd n ques- laintifl i ' nt COli:': i it, and •pon re- uce was ' that there was daiiv cunanunical: \lbany and Little, FhIIs. ler these circumstances, tlie forwa without notice to the owner, waj, a iefendant assumed the risk by disre- 11 judge held ■ ' It the general d granted :; ir'ijKi'EK, J . undertook to 1 ihe flax to Albany, and e fo New York v-ople's Line of steamli ■iiat line to v< the defe: . ant's oblig.it ■'.'ii .. ■ 1 , and if it inci further iia- bility, it was in th^ agent for the c lie property. In the absence of iS to the mod Mbany, it owed ^.v ' ]-)hir\^\ff. W rty, in r ,::-s for 1' VV end. 593 ; Van Sam ■ St. Johi . But when n -: ■frv.-yx -irding agent is iii-.^.i . ...... as tc. Mv . ids principal, an I to disregard them, he is g 'Un breach of dui\. \' ncn he sends gr ' mode p' he owner, he does it at his own risk, ai the liabv •irer : Ackley v. K'.l- logg, 8 Cow. 225. Jt appears in the present case tb-' 'rac t v/as made with vh-- !:t agent of the def' hat it Av ■■ ft r^vard the hem, >>• ; but tL , substance, the season that n.e OBEDIEN'CE TO INSTRUCTIONS. 677 would not send it, unless it could go by the People's Line. This proof tends to show that the defendant received the property with an express understanding that the hemp was not to be forwarded to New York unless by the People's Line. If this was so, the de- fendant was clearly liable. On the refusal of the steamboat pro- prietors to receive the property, the company should either have communicated the fact to the plaintiff, and awaited further instruc- tions, or it should have relieved itself from liability, by depositing the hemp for safe-keeping in a suitable warehouse : Forsyth v. Walker, 9 Pa. St. 148; Goold v. Chapin, 20 N. Y. 259 (75 Am. Dec. 398) ; Fisk v. Newton, i Denio 451 (43 Am. Dec. 649). There is a class of cases in which an agent is justified by an unexpected emergency in deviating from his instructions, where the safety of the property requires it. In this instances no such exigency arose. The only inconvenience which would have resulted to the owner from compliance by the carrier with his known wishes would have been mere delay in transmitting the hemp to market ; and he had notified the company that he would rather submit to this delay than to hazard the tow-boat transportation, at the close of the season of navigation. The primary duty of the agent is to observe the instructions of his principal, and when he departs from these, he must be content with the voluntary risk he assumes : i Parsons on Contracts 69 ; Forrester v. Boardman, i Story 43 ; Ackley v. Kel- logg, 8 Cow. 223. The evidence would have authorized the jury to find that there was a breach of duty by the defendant, and the nonsuit was therefore erroneous. The judgment should be reversed, and a new trial should be ordered, with costs to abide the event. Judgment reversed, and new trial awarded. Brown and Campbell, JJ., dissented. LAVERTY V. SNETHEN. 1877. Court of Appeals of New York. 68 N. Y. 522. Appeal from judgment of the general term of the court of common pleas in and for the city and county of New York, affirming a judgment of the general term of the marine court of the city of New York, which affirmed a judgment in favor of defendant, entered upon a verdict. This action was for the alleged conversion of a promissory note, the property of plaintiff, made by one Holly, payable to plaintiff's order. The facts appear sufficiently in the opinion. 6/8 DUTIES OF AGENT TO PRINCIPAL. Church, Ch. J., — The defendant received a promissory note from the plaintiff made by a third person and endorsed by the plaintiff, and gave a receipt therefor, stating that it was received for negotia- tion, 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 exception was intended to apply to the proposition above stated, and was sufficient. The question as to when an agent is liable in trover for conversion is sometimes difficult. The more usual liability of an 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 defined 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 himself. Every unauthorized taking of personal property and all intermeddling with it, beyond the extent of the authority conferred, 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. ]., in Spencer v. Blackman, 9 Wend. 167, defines it concisely as follows : "A conversion seems to consist in any tortious 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 author- ity (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 money ^o g-o 01 -: he had jc with the ]■ - ference and : • c/erred to, a on elusion, b} •^yeds V. Ha\. .gainst the m. ■ontrary to tho "hem by sendi';. "If one man ito the b;: :on." Tlr . - good \c\-- lOugh it ! hich ihe ' pencer ^ fendant into thr y virtue r be a con vers to him for a "ders or lea\ -jther person.'' and g-oes beyoi - Wheelock v. , Buffalo was d.) day, or ship it > sold it the nexi ■as a conversion, on Torts 310, r.:- ! upon by the i-, Hutchinson, 3 J ai; ing* that a broker erty at a price = of cases, I ap{i; . nothing with the j. had a right to .stl. structions as to pricv ■inversion of the jr ay seem technical Ijetween an unautlioii the avails or terms o; cognized and settled was an ! inter- ' !hat . in. al- .tj."-.'Uicr )0n ill be h. Ir. ■ watch waj by a watch i; '>r, when it was levu lie owner, and it was [,^.< "The watch was intrus r.i tain its vabiv T. , , ! i 'V) n, the watcl :V\' rse to gv; ■'C' 'e in tro-. • il. OT,. So ia , •f'c\f\0(\ ' :i r 'Ut . lilUill in trovv _ . nction in the (Vb AGIOjN' r l\> PR I JRCH, Ch. J., — Til , Ln lit iff made b}'' n :>.::•] t::i'\' a receipt thert lion, and die note to \- The plaintiff testified ' <;■ note go oni .dant, after r, dcli\cred the noti discounted, and re note for that pun, • but appropriat'^'T The court ■. plaintiff in re^vK.:ci i the possession of the note, and and the t cntic trover 'i"!r'?ed e defendant rec ■ third person ai *or, stating thai '•" -'ed the n: tee that ' ' without iL ih one Foo'; r the pron"-. V to defends ■ •d procure the p lis own use. ■le jury believed Ing the defendant " act of defendant ■-:e it away, was ; CO recover. The f o{X3sitions, one of ,. available. ts is desirable, I thii' ■'"? -^^-oposition alx) an agent is liable in r ' rr-ore usual liability iisit or what was 1 or misconduct. : remedy. Conversion exercise of the i.^^.u . Her to the exclusion of -ion takes place wl;en a onds of another as . Every ;ng with ■se a hmited autb ;x)se of it as to ainion, is a conN rights. A CO such acts in ) appropriation of personal pi of the authority c( with intent so to ; interfere with the Diet., title Convert.!-..! Savage, Ch. J., in h . Blackman • -ely as follows: ' ~sion se*:; which the defei rives tl: In this case th jced th defendant for a sp> ^ ._• not on' ity (as we must assume from the \ with the possession of the note wii delivery to Foote was unauthorized! to the express directions of the o\\ • the absolute dominion over this j art with so much of that dcr. note from - plaintiff, negotia- ihereof. i not to ,. The e note, get it \ay the vjunted, ncc of the i 1 rt with ' \ag the •iMii in law, n has been which was unob- e exception r cou version :;^ent to the termed an e are cases d to be an I ownership the owner's person does lount in law to ■ ized taking ! the extent ijeen given, >:>ndition or 3ouv. Law 167, define in any torti' his goods." c hands of ; restricted aut!' ' jury), not to p: ■• ^ he money. 'I ecause contr;: ' was entitled :. He had i AC pleased. He >' OBEDIENCE TO INSTRUCTIONS. 6/9 part with so much of it as would justify the defendant in dehvering 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 inter- ference 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 v. Hay, 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, contrary to orders, it is a conver- sion." This case has been repeatedly cited by the courts of this state as good law, and has never to my knowledge been disproved, al- though it has been distinguished from another class of cases upon which the defendant relies, and which will be hereafter noticed. In Spencer v. Blackman, 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. H., 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. Wheelock v. Wheelwright, 5 ]\Iass. 103. So, when a factor in Buffalo was directed to sell wheat at a specified price on a particular 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 v. 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 v. Hutchinson, 3 Taunt. 117, and Sarjeant v. Blunt, 16 Johns. 73, hold- ing that a broker or agent is not liable, in trover, for selling prop- erty at a price below instructions. 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 in- structions 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 unauthorized interference with the property itself, and the avails or terms of sale. At all events, the distinction is fully recognized and settled by authority. In the last case Spencer, J., distinguished it from Syeds v. Hay, supra. He said: "In the case 68o DUTIES OF AGENT TO PRINCIPAL. of Syeds v. Hay, 4 Term R. 260, the captain disobeyed his orders in deHvering the goods. He had no right to touch them for the pur- pose of dehvering 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 take away, any more than he had to pay his own debt with it. Morally, there might be a difference, but in law both acts would be a conver- sion, each consisting in exercising an vmauthorized dominion over the plaintiff's property. Palmer v. Jarmain, 2 M. & W. 282, is plainly distinguishable. There, the agent was authorized 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 v. Bleecker, 12 Johns. 300, where an agent was authorized to deliver goods on receiving sufficient se- curity, 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 V. 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 principal to his own use, and the fact of conversion may be made out by showing either a demand and refusal, or that the agent has without necessity sold or otherwise disposed of the property contrary 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 tort feasor." 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 misconduct. It fol- lows 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 authorized 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 evi- dence was not only not objected to, 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 available upon ap- peal. But if an exception had been taken I am inclined 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 <'>'\: if oi recciv; •hat a parol i;>etore sale and re- There is nc »■•.'' part with a pi The instruct i' though if the; have been ope l and a bona fie'' claimed that ;i;. livery to r> t'. upon this 5ome +'-- ma}- ;" liarsh , in thi> The jU'' All cone, ■ Judgmen; the jury re Foster, J. — • cation of well unusual and exi 'Accord: Chas. '"'I. V. Mather, iJ^^ It is no defen' ,T.iif,-t a claim : he claim i ■ never ar. wiiether it be l<} mere negligence o other manner, and an responsible therefor, r fitute no defense i<- nncipal. Indeed, in ■ ' cd from : ' '- . y, and ac: its deci he is . at me c -iich a c:' 68o AGENT TO PRINCJ : < .: •■;•! 1;. line J'"fn'(i jMise of 'Jciivering" t: The tlefendai, it at a less price \. ;i > action, but he \ :.v,ay, any more tl. ■ there might be a sion, each consi the plaintiff's p; plainly disti'^ note discoui B., said: "1 : authorized ■ an agent v cur-'- ■ '■■■■ the. "511 i' V. . that ill I. X), wher ;icient si was he I n of tl TIk . property, in a v a conversion, bii although at less ; quate for sufficitut property, but only iv, lows that there was ; faith is not involveci. of the conversion. his property by the < and control over it. o. It is evidence of instruct! l.w.- art with to vary the terms of the contains dence was not only not '■'■']'^Ll<:es to surrender the goods of 1- his authority in disixising of thei: id may be treated as a tort feasor that if the agent parts with ti ose not authorized, he is liable .. ^.i it in accordance with his autho :e misapplies the avails, or takes v .\e is not liable for a conversion ( n on the case for miscon<».iict. I ' the charge. Th-- 111 intent is not n' if the owner - assuminp- f. \\ t he can, in ch a case, ft voyages of this so terest and hevf■^^^ and emergen*: raster v. Boar necessary dep;.i tual instruct!' ptrirtnc^s, '! ' ccomes, '•In all the in- rcessity ' For- ■pon ic- sumed to have .ai '\. merce re^' bestow, a from the sence of occur catioTi dently and in ^ would ha\e K .■ tion in the s n. ■mi: aiswerabli nstratc i onrse iv This i:^ siTbmitted to us. good faith of i'ie strictness, givv vii;;'! stated does n - m conformir parties, to co. ants did act \ from liability, c • in payment? If t: ould have been an : .)n or to congress - ogard these rer ) seven per cent expense, the (\ induced any one, i acting in his owi; lan to attempt t" cmedy was praci.i.... !onate to the amount The propriety < ' uestionable. As I r bv 682 r'J.-iiF.s Of The defendants, i: received during the .._.,. tity of hay consigned f< payment of freight and value. Three hundred . officers of t'u re seized by ; to the factors for er clearly within the S' strong arm of milit;' trol. The only paymer either for the ha^ indebtedness, th- the bearer ar ■ The factor; their n- rlaivn^ ' xor the ]<.)S.'^ their face. rchants or factcr ^64 from the pla^. . . tpon whidi they mad Orleans, : ge quan- .■ Kivances in larges amou- ' • ' ' K-.Tj.- .•(-.- ty-one tons > • ites for cash, iiie 'lority. No fauk cov. ■ 134 lUted events. T) authority, r 13 an occurr-. were y the >nd their con- I'nited States ofl. ild make, • »r that seized, w; ificates of - of the United ayable to - 'e rate of six per ^.eiil. per annum yment, and at once sold them fv cents on the dollar. The plaintir- iable for the loss sustained by thi i.s factors they had no right to tak- lu secondly, because, if justified in a> right to sell them below par withou' /e called upon to decide whether is ?y violated their duty, so as to rendc "e to their principal, the consigno: . -if the teriifuritr :)i n (li'-ci.'unt liek'; - tacL. LIM (. >l_)l. .ilV; MiM L LH LI Uionly ; tii,.' consignor, ti the usages of t: course pursued stances. But ^^ emergencies? Iv.. , ^ - of Mr. Justice Stor} who had totally dep. : ivisivu. ■is S'.> apposite that \ ,)rincipU :e. In circuii ecessity ry that the fi ^ ict /'^?- discretion. "What, thei such a case of unexpectc . of the instructions?" "Now I take it • den emergency, or supervening neces it becomes impossible for the superi tenns of his instructions, or a •' F'-vstrate the objects of the ow^- 'uty of the supei not compromise debts without at hange of circumstances, advise t'i is ; and that they must conform - je known to both parties, or to tl ■roved by the owner in former i; in novel, critical and unforesee ■ '^'^ to an opmu a supercarr ^)or. whir' .'-ice of ir ■.agency it is on' I with reasonah - : > to do i ' ..!.cmplati<-! l>y some suti vpected even! ith the exav rewith wouh iterests, it b'. oumstances, to d< OBEDIENCE TO INSTRUCTIONS. 683 the best he can, in the exercise of a sound discretion." "He becomes, in such a case, an agent from necessity for the owner." "In all voyages of this sort there is an implied authority to act for the in- terest and benefit of the owner in all cases of unforeseen necessity and emergency, created by operation and intendment of law." For- rester V. Boardman, i Story 43, 51. A justification founded upon necessary departure from the ordinary custom of trade or from ac- tual instructions must undoubtedly be construed with considerable strictness. The agent cannot be allowed lightly or unadvisedly to assume a latitude of discretion not conferred upon him by express authority, or by those usages of trade, which both parties are pre- sumed to have known and contemplated. But the interests of com- merce require, and the enlightened principles of commercial law bestow, a discretion which enables the factor to protect his principal from the irreparable injury which would be liable to arise in the ab- sence of authority to act under critical circumstances, unexpectedly occurring, which do not admit of delay for the purposes of communi- cation and consultation. And the factor, so placed, who acts pru- dently and in good faith, as the owner himself, being a wise man, would have been likely to do if personally present, finds his protec- tion in the sincerity and sound discretion of his conduct, and is not answerable for consequences, although subsequent events may dem- onstrate that his principal would have been the gainer by a different course from the one he has conscientiously and discreetly adopted. This is the rule which must govern the decision of the case here submitted to us. It isi a question of fact rather than of law. The good faith of the defendants is expressly conceded. We might, in strictness, give judgment for them on the ground that the case stated does not affirmatively establish their liability. But we prefer, in conformity with what we suppose to be the intention of the parties, to consider and pass upon the question, whether the defend- ants did act with such prudence and discretion as to exempt them from liability. Ought they to have refused the certificates proffered in payment? If they had done so, the only redress open the plaintiff would have been an application to the war department at Washing- ton or to congress or to the court of claims. No rational man could •regard these remedies as worth pursuing to avoid a discount of seven per cent., the whole amount of which was only $1,659.28. The expense, the delay, the uncertainty of ultimate success, would have induced any one, having regard solely to his pecuniary interest, and acting in his own affairs, to accept the proffered certificates rather than to attempt to stand upon his strict legal rights, where no legal remedy was practically available without disadvantages dispropor- tionate to the amount at stake. The propriety of selling the certificates may be considered more questionable. As they were sold as soon as received, justice requires 684 DUTIES OF AGENT TO PRINCIPAL. US to regard the factor's entire judgment and conduct together, and if the principal was benefited by the whole exercise of their discre- tion, and placed in a better condition than if they had refused to as- sume the responsibility, it would be unfair to subject them to loss because they might in one respect have done still better. No one can say that they would have decided to accept the certificates without also, as a part of the same mental act, deciding to convert them forth- with into cash. But we do not proceed upon this narrow ground alone. In guarding the interests of a distant principal it was their duty to err on the side of prudence rather than of overconfidence. We must remember the situation of the parties and the country at the time of the transaction, and judge by the light they then had, and not according to the wisdom that comes after the event. The ordinary facilities to correspondence between Maine and New Or- leans was greatly interrupted. No telegraphic communication was possible. The mails were slow and uncertain, and somewhat exposed to capture in transit. The interval within which the most speedy interchange of letters could take place was long enough for mo- mentous events. The pecuniary credit of the government depended on the varying fortunes of war. A single disaster might have de- pressed the market value of the securities far below the point at which they then stood. Other factors and agents similarly situated with themselves deemed it their duty to realize at the current rates of the market. More than half of the proceeds of the property would be required in New Orleans to pay advances and charges. The justification of the sale is not to be placed on the ground that they had a right to make a sacrifice in order to reimburse themselves, for factors cannot sell below limits without notice to the owner of the amount due and a request for payment. But the fact that the con- signor owed $14,303.45, payable in New Orleans, on account of this shipment, was a circumstance of some weight in determining the question of expediency. If the securities were to be sent to the north, and the money due to be remitted thence, double risks of transportation must be incurred. It is impossible for us to • conclude that the course adopted exhibited any such error of judgment or neglect of duty as ought to render mercantile agents personally responsible to their principals. Judgment for the defendant.^ ^Compare Harter v. Blanchard. 64 Barb. (N. Y.) 617. Regarding the right of a ship captain to sell the cargo see Butler v. Mur- ray, 30 N. Y. 88. :SOTA LI- rLAl>iT]FJ- '. i claims to have said Valentini. mit that the n: Valentine for payment - -j'- '-''^' - ■■ fied b. ict and tiff, a i.use has hv,; conrt art here de' ider which the mon« - - - i-^ - J. ihe i^sited witi. ... with them by one K agent for the was a conflict in the evi the direct: ;i this time as h' ' which the -e.d. TTarkne^s while def t : iie direction was ■ should be ;.^ ' 1 1 1 .;. : n !"» Q ''. .'• 1 1 ■ M r . for plaintiff, vn formed them : • lllUif \\ ■ sion of six cei ;te seed evidence :' his arrany chases me unfo ■■ loss have do- ■:• can : to accept the cc '. ' ■:t, deciding to ecu •. ■. - ' ;)roceed upon this n:. of a distant princip;; ice rather than of o'> i. of tlie parties an^l judge by the h'ght t. that comes after the event. Th- •ire between Maine and New Or \o telegraphic communication w? i uncertain, and somewhat expose' \al within which the most speed, • place was long enouj^h for mo redit of the government dependc di. A single disaster might have de the securities far below the point a' :r factors and agents similarly situate. ^mV fluty to realize at v^ ■ < -.irrent rate ' : ; the proceed:- propert •_' :ns to pay advau'c:- .uiu char- it to be placed on the ground :ii . . ier to reii' " ;i; -i notice u \inent. But the fact lisat the a New Orleans, on acccunt oi some weight in determining tlv ide tha irse adopte' arter v. Biari /ic riplit of a OBEDIENCE TO INSTRUCTIONS. 685 MINNESOTA LINSEED OIL CO. v. MONTAGUE and SMITH. 1884. Supreme Court of Iowa. 65 Iowa 67. Plaintiff brought this suit to recover a sum of money which it claims to have deposited with defendants, to be paid out only on tickets issued by one Valentine, an agent of the plaintiff, in the pur- chase of flaxseed, but which defendants, without authority, paid to said Valentine in payment of certain commissions. Defendants ad- mit that the money was deposited with them, and that they paid it to Valentine for the purpose alleged by plaintiff, but deny that such payment was unauthorized, and allege that it was subsequently rati- fied by plaintiff. There was a verdict and judgment for the plain- tiff, and defendants appeal. The cause has heretofore been in this court. See 59 Iowa 448. Reed, J. — i. * * * (The court here decided a question re- garding the admissibility of evidence.) 2. The original arrangement under which the money was de- posited with defendants was made with them by one Harkness, as agent for the plaintiff. There was a conflict in the evidence as to the directions given by Harkness at this time as to the manner in which the money should be disbursed. Harkness testified that he directed the defendants to pay out money only on tickets issued by Valentine, which should show actual purchases by him of flaxseed ; while defendants both testified that the direction was that the money should be paid out generally in the business of purchasing flaxseed for plaintiff, in which Valentine was engaged, and that Harkness in- formed them at that time that Valentine was to be paid a commis- sion of six cents per bushel on all the seed purchased by him. The evidence shows without conflict that Valentine was entitled, under his arrangement with plaintiff, to receive as commissions on the pur- chases made by him the amount of money paid him by defendants. The defendants asked the court to give the following instruction, which was refused : 'Tf the language used by plaintiff's agent in employing defendants as plaintiff's disbursing agents, to pay off checks made by Valentine, and instructing them as to their duties as such disbursing agents, was fairly capable of two constructions or understandings, or was ambiguous in its meaning, the plaintiff is bound by the understanding which his language fairly and reason- ably conveyed to defendants, provided defendants acted in good faith in carrying out such understanding thus fairly and reasonably conveyed to them by the language of plaintiff's agent." Defend- ants assign the refusal to give this instruction as error. The court on its own motion instructed the jury that, "if the language used by plaintiff's general agent in making the arrangement with defendants was ambiguous, or fairly admitted of more than one construction. 686 DUTIES OF AGENT TO PRINCIPAL. that meaning is to be given in which they were understood by de- fendants, provided plaintiff's said general agent had reason to be- lieve they were so understood by defendants." Omitting the quali- fication expressed in the last clause, this instruction presents the rule which is embodied in the instruction asked. With the qualification, however, it presents a very different rule. Under the instruction as given, defendants would be liable if they adopted and acted on a con- struction of the instructions of which they were fairly capable, but which was different from which was actually intended by the agent, and he did not know that they had adopted such wrong construction. This, it seems to us, would be to make the innocent party suffer for the wrong or negligence of another. If the instructions were "am- biguous, or fairly admitted of more than one construction," this was the fault or negligence of the party who gave them, and that party ought in justice to bear the consequence of such negligence, rather than the one who was deceived and misled by it. We think, there- fore, that the instruction should have been given without the qualifi- cation. Vianna v. Barclay, 3 Cow. 281.^ * * * Judgment reversed and cause remanded for a new trial. ^ WELLS V. COLLINS. 1889. Supreme Court of Wisconsin. 74 Wis. 341. Appeal from the Superior Court of Milwaukee County. The following statement of the case was prepared by Mr. Justice Taylor as part of the opinion : This action was brought to recover for the wrongful conversion of certain sums of money collected by the defendant for the plaintiff, and converted by defendant to his own use. The material facts as shown upon the trial are the following : In 1883 the defendant was the agent of the plaintiff, Daniel Wells, Jr., in collecting rents and other moneys for him. At the same time he was also the agent of William S. Wells, collecting rents and transacting other business for said William S. Wells. The plaintiff was the owner of a certain dwelling-house situated in the city of Milwaukee, and on or about the day of , 1883, he directed said defendant to col- lect the rents which should thereafter become due to him from the tenants of said premises, and pay over the money so collected to his ^ A portion of the opinion is omitted. "Accord: Bessent v. Harris, 63 N. Car. 542, 646; Pickett v. Pearsons, 17 Vt. 470, 477- In Coker v. Ropes, 125 Mass. 577, an instruction to the jury, that where orders to an agent are explicit and intelligible the agent is deprived of any discretion in the execution of these orders, was held correct. William ^. same to W;: : to his brother. ( " " )n, and before >' collected rents from of $368.20. Of thi said William S. We! plaintiff demanded : by him and not n.;-' to refused to pay ovci :::c -^ On the trial thert wa collected, or the amount Ham S. V/(=-i''; ;'..' r'w- . the $50 commis fendant Tayl tention we must, un were collectc. , der direction to there can be no was the money r- by his agent money so co ;■ tion to the matter 11 and handed the n- ^ William S. WelL converted it to lu- 'enant of the respon' rive the mone- :noney of the ■: between the Li. - money shall f;-.^ elation of cr: ^e money so i^ on V. Sharpstei: ice Paine, after found no rnse • rent.s and over by ered ani'.. to Willi, ollecting li • ' -on:) J . : .nt to the . ^ i.der the direction giv /lOut foundation. HoJ.^ , igs of the court, that the '■': agent of the respo!- ' iiam S. Wells when hat the money when cgIj any application of ^tirh ;. i would be a cou ere could be no u .,. id collected the ren^ :C, v/ith direc^^ ■' - 1 neglected ; cy collected by him ■ if. in the absence 01 . . his own, and himself a: 686 •r f" that, meaning is to be given; fendiints. provided yr- ' iieve they were so U'. fication expressed in which is embodied h: however, it presents given, defendants w< struction of the inst which was differs ' and he did not k This, it seems to the wrong or rtr biguous, pr the fault or ought in jv. than the ont w;; fore, tlmt the ins- cat^ in which they were • d by de said general agent ! ' ■ ' v hv defendants." ('■ , .,■. c, this instn. rule on asked. lion, nt rule. Under the n as (f they adopted and ac. . con- hich they were fairly capable, but as actually intended by the agent. ■ adopted such wrong constnictior iiake the innocent pai"ty suffer for cr. If the instructions were "am- ^e than one construction," this was ly who gave them, and that party equence of such negligence, rathe v nd misled by it. We think, there ,ave been given wthout the qualifi V. 281.^ * * * < !nanded for a new trial. ^ LLINS. L 01? Wisconsin. 74 Wis. 341. iiie •■ Taylor ;. This action w certain sums of and converted b shown upon the c. -. .. . the agent of the plamtifi other moneys for hir'- William S. Wells, cc ■ S.- We jse situa the day of - lect the rents which tenants of said prenr; ' A portion of the opi -Accord: Bessent v. 470, 477. la Coker v. Ropes, i ruers to an agent are J: •:ietion in the execut; rt of Milwaukee County. iie case was prepared by Mr. Jusik >ver for the wrongful conversion o. !iy the defendant for the plaintifl , own use. The material facts a .v/ing: In 1883 the defendant wa Wells, Jr., in collecting rents an<; ■ " time he was also the agent oi ; transacting other business f o ■ f was the owner of a co-' i Milwaukee, and on or ; lie directed said defendant to coi ifter become due to him from tht over the money so collected to hh : V. Pearsons, 17 Vt. ■.he jury, that where is deprived of any M OBEDIENCE TO INSTRUCTIONS. 68/ brother, William S. Wells. This direction to collect the rents and pay the same to William S. Wells was intended as a gift from the plaintiff to his brother, William S. Wells. After the giving of this direction, and before the commencement of this action, the defendant collected rents from the tenants of said dwelling-house to the amount of $368.20. Of this sum the defendant paid $50, and no more, to said William S. Wells. Before the commencement of this action the plaintiff demanded of the said defendant the said money so collected by him and not paid to said William S. Wells, and the defendant refused to pay over the same or any part thereof. On the trial there was no dispute as to the amount of the rents collected, or the amount actually paid over by the defendant to Wil- liam S. Wells ; and the plaintiff recovered amount of said rents, less the $50 admitted to have been paid to William S. Wells, and the commissions due the defendant for collecting the same. The de- fendant appealed from the judgment. Taylor, J. — (After deciding another question:) The other con- tention, that the only relation of the respondent to the appellant in regard to the rents collected by him under the direction given is that of creditor and debtor, is equally without foundation. Holding, as we must, under the evidence and findings of the court, that the rents were collected by the defendant as the agent of the respondent, un- der direction to pay the same to William S. Wells when collected, there can be no reasonable doubt but that the money when collected was the money of the respondent, and any application of such money by his agent other than the one directed would be a conversion of the money so collected and received. There could be no doubt in rela- tion to the matter if the respondent had collected the rents himself and handed the money to the appellant, v/ith directions to pay it to William S. Wells, and the appellant had neglected to pay it over and converted it to his own use. When he receives the money of the tenant of the respondent as agent of the landlord, does he not in law receive the money as the money of the landlord ? It certainly is not the money of the agent when received, unless there be some agree- ment between the landlord and agent, either express or implied, that such money shall be considered the money of the agent, and that only the relation of creditor and debtor shall exist between the parties as to the money so received. Such was the decision of this court in Cotton V. Sharpstein, 14 Wis. 226. In the opinion in that case, Justice Paine, after a full discussion of the question, says : "We have found no case where the exact question now under discussion has been decided. But we are satisfied that it is the clear result of principles well established that it is the duty of the agent to keep money collected by him for the principal, to whom it belongs, and that if, in the absence of any authority, express or implied, to treat it as his own, and himself as a mere debtor, he wrongfully converts it to his own use, he is liable to an action of trover and to all the 688 DUTIES OF AGENT TO PRINCIPAL. legal consequences of such an action." In in re , 30 Eng. Law & Eq. 390, Lord Campbell said : "Those bills were chattels, sent to him to be applied to a specific purpose for the benefit of the client, and he could not honestly mix the proceeds of those bills with his own proper money. * * * Unless there was some evidence of condonation on the part of the client, we cannot treat this as a case of mere debt." So in the case at bar, the rent money came to the hands of the appellant for a specific purpose, and he cannot divert the money from that purpose without the consent, express or implied, of the respondent. In this case the court has, upon suffi- cient evidence, fovmd that no such consent was given. The fact, if such be the fact, that the respondent had treated the appellant as his debtor for other rents collected by him, would not help the appellant as to the rents collected under the order to pay the money so collected to William S. Wells. Such direction took these rents out of the course of general dealing between the parties, and appropriated them to a particular purpose ; and, according to the findings of the court, which are clearly supported by the evidence, the appellant did not appropriate them to such specific purpose, but, on the contrary, converted them to his own use, without the consent, either express or implied, of the respondent or of William S. Wells. We think the case was properly decided by the superior court. By the Court. — The judgment of the Superior Court of Mil- waukee County is affirmed. Section 2. — Agent's Duty to Observe Good Faith. HEGENMYER and Another v. MARKS. 1887. Supreme Court of Minnesota. 37 Minn. 6. Gilfillan, C. J. — The plaintiff owned a lot of land in Minneap- olis. One Creigh was a real estate broker, and at his request she employed and authorized him to sell the lot to any one who would purchase it at such sum as would net her $1,050, Creigh to receive as his compensation whatever he could get for the lot in excess of $1,050. At the time of such employing he (believing it to be true) represented to her, and she believed, that $1,050 was the fair market value of the lot. Both of them supposed the lot to be entirely ■vacant ; but a third person, owning the adjoining lot, had by mistake constructed on her lot, thinking it was his, a valuable house and barn in such manner that they were part of the realty. Neither plaintiff nor Creigh knew anything of this at the time of employing. With the buildings the lot was worth over $3,000. Creigh learned of it before making a sale, but did not disclose it to plaintiff. He sold the lot to defendant for $1,150, the latter knowing of the buildings on c- lot ai}d knowing tha the fact. Of the $] _ i. -■ [_' 1 ci n ; I : . i I . • ■ ' ' te and mortga^^- 'ant refusk^ii, : .- .>urt below d' .j- the decision vi rst, that it \\3- ' mg upon th- ;Ung the !■ ' e had pr >on her ; ■eij^h's f .ed the pric- > e that, had she ihe fact, she undoubtedly v, of him, and ii he proceeded t ice in accori.. oc , his selHng i ing to her the : The tender \ the fraud on pi.. (in effect) from a eration of equity that good either to • ;'?r as a condit'- •' the fraud c ice of the facts j .,.1 judgment affirmed. 07. l^OURT OF APPEAL from tht- "^ iiid a sale of >V(i ■ fendant ' -R If. queiices oi ■ I 1. 390, Lord him to be appli ^...^..v. and he could "-^ his own proper m' of condonation ors case of mere debt, the hands of the ; divert the money 1 impHed, of thr cient evidence. The fact, if appellant as hi^ vj._ help the appellant money so rents ':>'it .:don. " -, 30 Eng. '] said: chattels, jjecific \) : of the ..wy mix the 'Is with * * Unir vidence of the clieni, \- is as a ihe case at bar, nme to :• a specific puij he cannot )Ose without the ;"cpress or this case the court a suffi- h consent was given. that the respondent had treated the (.r rents collected by him, would not ; collected under the order to pay the ?. Wells. ■ Such direction took these ral dealing between the partifes, anci liar purpose; imd, according to the <: clearly supported by the evidence. :e them to such specific purpose, but< > to his own use, within 1 .r- .-r,tv,r.n- respondent or of Wi • riy decided by the suijljmi, coun. iient of the Superior Court of Mil ,rl Vr r]i -.'■; ANOTilEP. V. iVi_AKiS,:3. MiNNEs< Minn. 6. GiLFILLAN, ■' olis. One Crcx^i, employed and auti purchase it at sucl as his compensati; $1,050. Attheti;; reriresented to her, of the lot. ....,it ; but a thir 1 constructed on her in such manner th;;. nor Creigh knew anyth the buildings the lot ' before making a sale, i lot to defendant for $ 'iff owned a lot of land in Minne state broker, and at his request -^ o sell the lot to any one who wc. w-aild net her $: " Creigh to rect .er he could gei lot in exces- ying he ; lAaicving it to he * , that $1,050 was the fair ; nn supposed the lot to be c ing the adjoining lot, had by !• it was his, a valuable house ar, -■-1-- part of the realty. Neither \y.- int< of this at the time of employing. '■ ^h leam.' if. He - 150, the latter kuo^ing oi the builds- GOOD FAITH. 689 the lot and knowing that Creigh knew and that plaintiff was ignorant of the fact. Of the $1,150, $450 was paid in cash — plaintiff receiv- ing $350 and Creigh $100 — and $700 was secured by defendant's note to plaintiff and his mortgage on the lot. Upon learning of the facts plaintiff tendered to defendant the $350, with interest, and the note and mortgage, and demanded a reconveyance of the lot, which defendant refused. The action is to rescind the sale and conveyance. The court below decided in favor of plaintiff. The decision of the court below proceeds on the propositions : First, that it w^as the duty of Creigh, upon learning of the buildings being upon the lot, to communicate that fact to plaintiff, and that by selHng the lot without disclosing that fact, at a price which he knew she had put upon it in ignorance of that fact, he committed a fraud upon her; and, second, that defendant, by purchasing wath notice of Creigh's fraud, became a party to it. If the first proposition be cor- rect the second follows as a necessary consequence. The case turns upon whether it was the duty of Creigh, before making a sale, to disclose what he had learned to his principal. Upon this contract of agency my brethren are of opinion (though it is not mine) that when Creigh learned a fact affecting the value of the property, and of which fact he knew she was ignorant when she fixed the price, and if he had reason to believe that, had she known the fact, she would have fixed a higher price (as in this case she undoubtedly would), then good faith toward his principal required of him, and it was his legal duty, to disclose the fact to her before he proceeded to sell, so that she might, if so disposed, fix the selling price in accordance wdth the actual condition of things. This being so, his selling upon the basis of the price fixed first, without disclos- ing to her the fact he had learned, was of course a fraud on her. The tender was sufficient. Defendant and Creigh were parties to the fraud on plaintiff, by which Creigh, one of the parties, received (in effect) from defendant, the other party to it, $100. No consid- eration of equity or morality would require of plaintiff to make that good either to Creigh or defendant. All that can be required of her as a condition of her repudiating the transaction imposed on her by the fraud of Creigh and defendant is to restore what (in igno- rance of the facts) she received in the transaction. Judgment affirmed. CONKEY V. BOND. 1867. Court of Appeals of New York. 36 N. Y. 427. Appeal from the Supreme Court. The action was brought to re- scind a sale of stock in the Oswego Starch Company, made by the defendant to the plaintiff in February, 1857, and to recover $1,500, 4-! — Reixhard Cases. 690 DUTIES OF AGENT TO PRINCIPAL. the price paid therefor, and certain payments made by the plaintiff as a stockholder. The complaint alleged the facts upon which the plaintiff claimed that the sale was fraudulent in fact and in law. These were, in substance, that the defendant undertook to purchase stock in that company as his agent, and that he fraudulently transferred his own stock to the plaintiff, at a price greatly exceeding its value, under the pretense that it was the stock of other parties which he had pur- chased for the plaintiff as his agent ; that he concealed this fact from the plaintiff, and upon its discovery by the latter, shortly before the commencement of this suit, he refused to rescind the sale. The com- plaint further alleged that the defendant made false representations to the plaintiff as to the value of the stock and the financial condition of the company, to induce him to make the purchase. The judge, before whom the cause was tried, found that no repre- sentations were made by the defendant which he knew to be false, and held, as matter of law, that the other facts established by the pleadings and proofs did not entitle the plaintiff to relief. These were substantially as follows : In January, 1857, the de- fendant was the owner of a number of shares of the Oswego River Starch Company, and the agent of the company in the city of New York for disposing of its manufacture. In an interview at that date between the parties in New York, after a glowing account by the defendant of the business of the concern, and of which the plaintiff had previously no knowledge whatever, the plaintiff expressed a desire to purchase some one or two thousand dollars' worth of the stock, if any was to be obtained in the market, at a price not exceed- ing $150 per share. The defendant thereupon undertook to buy some, if it could be procured, and if successful he was to apprise the plaintiff, who resided in the county of Chenango. Accordingly, on the 31st of January, 1857, he addressed a letter to the plaintiff, reiterating his opinion of the value of the investment, stating that he knew where he could obtain the stock at $150 per share, and asking defendant if he would like it. He stated fur- ther that he did not wish to advise the plaintiff, but if he should conclude to take the stock, he would "get and send him a certificate'' for that amount. The plaintiff answered this letter on the 5th of February, remarking that he liked the statement, and was willing to take that amount, and desiring the defendant to obtain the certificate, when he would at once put him in the funds. This letter the de- fendant acknowledged on the 19th by a brief note, saying that he would write and get the certificate as soon as possible, and on the 25th of February he wrote again, inclosing the plaintiff the scrip for ten shares of the stock, and adding in a postscript : "If we meet with no mishap, I think our stock will pay well ; I could sell quick at $150 if I had any to dispose of." The plaintiff remitted the $1,500, and that closed the transaction. not dip •T the CO. little ini • ant. and ;n this v ! c soon '. " a receiv' The case, as decided in t- ':, is rep- ar 276. Porter fendant volimteered his ti stock of the \ -Ml* ;)M Ml- I, who , , .- assuranct I, and he av m to buy at • It hini a rv .t he had n('. h. ted luidt red was his ■ ii. There is no Id. He staj _ . jm concluding a = on assent of the |; at once as sell', v'ner. Thar him and ver " latter to rc- not. materia. . '.adulent purpose. i\\'z ■'. I authority fr- '■ s fiduciary re e, the 1 is rt rfr none v • court below, and his chority. (34 Barb. 27c jry on Agency, S j ! 4 ; vone V. Fannin;? the pi certam pdyiaeni plaint' complaint aileged • -^nle was p-'-" • ■■ that the (:(>f,:ps.ny as hi- siock to the pla pretense that -. chased for the ^ the plaintiff, and 1:1 commencement of il.- plaint further alleged 1' to the plaintiff r of the companA the facts upon ' "-it in fact aiiv. . ,.. . it undertook to pur' tr claimed i!i£; S P" ^ the pi: stating that he ■■' -, and ask,,;.. lat he did i~ I'ciade to take tl cor that arncmnt. when he would at ^"endant ackno vvi ! ; ' would write a 25th of Februa. j. ' ten shares of the : with no mishap, I ! .-150 if I had any v The plaintiff remitteii lii f oilier parties iiad pur- nt ; that he cone ^ fact from ery by the latter, shortly before the : used to rescind the sale. The com- . fendant made false representations the stock and the financial condition make the purchase. was tried, found that no repr ant which he knew to be fal-^ liiat the other facts established by tl -ntillp ihe ! Iniiitiff to relief. Tanuar} i!Ui'.ii.:<::r i.)j Mi.iicS of the ' .'o vv.;t^v.' i\iw •ent of the company in the city of N<. ' cture. In an interview at that date 'k. after a glowing account by rh** •ern, and of which the plaint- ever, the plaintiff expressed thousand dollars' worth of tl ii Lae market, at a price not excet' ndant thereupon undertook to br d if successful h'- apprise ti nty f>f Cbenang'C'. d obtain the stock at $150 j:. would like ■♦ '^"f* stated fv Ivise the plaintij he sho; ■ :\ certificat< on the 5th 1 was wi! ; the cen ; m the letter 9lh by ;- - -- . saying • ■ate as soon as i>ossible, and ■"-^' • ■•■ ■ *■'- • • -lintiff the s<- ript: -If \v i: v.ili •.'. i could sell quick ^he transactio! GOOD FAITH. 69 I The defendant did not, in fact, purchase any stock from the company or from any outside party, but caused ten shares of his own stock to be transferred to the plaintiff. He did not communicate this fact to the plaintiff at any time during the negotiation, or subsequently, and it was not discovered until the following June. At the time of the transfer the company was in an embarrassed condition, and the stock was of little intrinsic value, though these facts were unknown to the defendant, and he supposed the representations to be true which he made in this respect to the plaintiff. The affairs of the company were soon afterward wound up, and its effects passed into the hands of a receiver. The complaint was dismissed; but the judgment was reversed and a new trial was ordered by the General Term in the fifth district. The case, as decided in the Supreme Court, is reported in 34 Bar- bour 276. Porter, J. — The fact that the defendant volunteered his agency did not absolve him from the duty of fidelity, in the relation of trust and confidence which he sought and assumed. The plaintiff was in- duced to purchase at an extravagant premium stock of the value of which he was ignorant, on the mistaken representations of the de- fendant, who professed to have none which he was willing to sell. This assurance very naturally disarmed the vigilance of the respond- ent, and he availed himself of the defendant's offer by authorizing him to buy at the price he named. The defendant did not buy, but sent him a certificate for the amount required, concealing the fact that he had not acted under the authority, and that the stock trans- ferred was his own. There is no view of the facts in which the transaction can be up- held. He stood in a relation to his principal which disabled him from concluding a contract with himself, without the knowledge or assent of the party he assumed to represent. He undertook to act at once as seller and purchaser. He bought as agent, and sold as owner. The ex parte bargain, thus concluded, proved advantageous to him and very unfortunate for his principal. It was the right of the latter to rescind it, on discovery of the breach of confidence. It is not material to inquire whether the defendant had any actual fraudulent purpose. The making of a purchase from himself, with- out authority from the plaintiff, was a constructive fraud, in view of the fiduciary relation which existed between the parties. In such a case, the law delivers the agent from temptation by a presumptio juris et de jure, which good intentions are unavailing to repel. It is unnecessary to state our views more fully on this question, as it is fully and ably discussed in the opinion delivered by Judge Bacon in the court below, and his conclusions are abundantly fortified by authority. (34 Barb. 276; Gillett v. Peppercorne, 3 Beavan 78; Story on Agency, § 214; Michaud v. Girod, 4 How. (U. S.) 555; Davone v. Fanning, 2 Johns. Ch. 268, 270; Moore v. Moore, i Seld. 692 DUTIES OF AGENT TO PRINCIPAL. 262 ; N. Y. Central Ins. Co. v. Protection Ins. Co., 14 N. Y. 91 ; Gardner v. Ogden, 22 id. 347.) The objection that this theory is inconsistent with that stated in the complaint is not sustained by the record. The essential facts are alleged, and the appropriate relief is demanded. The fact that the complaint alleged other matters which the plaintiff failed to estab- lish impairs neither his right nor his remedy. Utile per inutile non vitiatur. The order of the Supreme Court should be affirmed, with judg- ment absolute for the respondent. All the judges concurring. Judgment accordingly.^ VON HURTER v. SPENGEMAN. 1864. Court of Chancery of New Jersey. 17 N. J. Eq. 185. The Chancellor. — The bill alleges that in the year 1846 Edward F. Von Hurter became seized in fee of a lot in Jersey City, and after mortgaging the same for $825, in January, i860, agreed to convey the premises to George W. Korn for $3,000. Having previ- ously conveyed the legal title to one Michael Lienan, and having only an equitable title in the premises, Von Hurter, in order to carry his contract with Korn into effect, caused a bill to be filed for the foreclosure of the mortgage and the sale of the mortgaged premises. On the 2d of July, i860, the premises were sold under a decree of this court, and struck off and conveyed to Spengeman, the defend- ant, for $2,005. Spengeman mortgaged the lot for $1,000, and on the 1st of September, i860, he conveyed it to Korn, in fulfilment of the contract of Von Hurter, for $3,000. The mortgage of $1,000 constituted a part of the consideration, and the balance of $2,000 was paid by Korn to Spengeman. For this sum the bill prays that the defendant may be decreed to account, as trustee for the complainant. The bill further charges that the complainant was the adopted daughter of Von Hurter, and had been nurtured, maintained and educated by him and his wife from her infancy until the year i860. That in May, i860. Von Hurter, having lost his wife and being about to return to Europe, leaving the complainant in this State, ap- ^ An agent to sell cannot himself become the purchaser. Bain v. Brown, 56 N. Y. 285. "An agent to purchase cannot be allowed, except as his principal assents, to purchase for himself. He can acquire nothing by an adverse purchase, even though he contribute of his own means or credit to effect it; the product will belong to the principal exclusively." Stewart, J., in Bergner v. Bergner, 219 Pa. St. 113, 119.* See also Geisinger v. Beyl, 80 Wis. 443. iswer and ev } . :.:i-d Speng-ein-;' minority, but that ' collect all debt.^ an to him in America defraying necx - to educate. ?u!' ity. The < : the fund i- expended '. ■-••'hich he The sin !ant is U i.OUnt to Tl!'; i.. Wh«: been iTuihv of . .ion of t: which he claims tc '"^nefit of '^' ■> • ads, for ;• fund ill Pmt the Korn tlie title the premises 1 :ure a debt • ■ ditors. Th^ ' conveyance in the mouth c: property of ¥■ The title was [ to the defendai contract. The de " T-'s title to the pri The defendant I iiiased by him at t' for her benefit, bur n "money, and f. it he prevented •: ^ave the property 202 ; N. Y. CenUai Ins. Co. v. PrC' Gardner v. Ogden, 22 id. 347.) The objection that this theory is inco; the complaint is not sustained by the reaj; alietfcd, and the appropriate relief is der com]>Jaint alleged cV ^lers which the \j lisli impairs neither nor his remedy. vitiatur. The ordt , urt should be ment absolute for u 14 N. Y. 91 stated 1 i...w ant, for $2,005. the ist of Septt the contract of constituted a par paid by Korn t ■ defendant may be d.. The bill further daughter of Von I educated by him an. That in May, i86t) about to return to Eur \i ■ 11 alleges that in the year 1846 Edwar cd in fee of a* lot in Jersey Cit>', an for $825, in January, i860, agfeed !■ ie W. Korn for $3,000. Having prev Mile to one Michael Lienan, and havin; h'^ premises, Von Hurter, in order to can •t, caused a bill to be filed for tl . :hc sale of the mortgaged premise premises were sold under a decree < i conveyed to Spengeman, the defen< riiortgaged the lot for $1,000, and c tnveyed it to Korn, in fulfilment < $3,000. The mortgage of Slo- iciation, and the balance of $2,00- For this sum the bill prays th; account, as trustee for the complai that the complainant was the a^!' id had been nurtured, maintaine* 2 from her ir ' ^ r-di\ the year irter, haviii - wife and - .,jj^, leaving the conijiiUiuant in this State, i] come the purchaser. Bain v. Bro ■■.■\n ayci.. u.' I'urcii.ise (anii'.': ue allow to purchastr for himself. He can acquire p' though he contribute of his own means O'- heloilg to the principal exclusively." Stew Pr, . Si. ! I ■:. i lo' ;ner v. 1' GOOD FAITH. 693 pointed Spengeman her guardian, and constituted him the trustee of the fund in question for her benefit. The material allegations of the bill are either admitted by the an- swer or satisfactorily established by the evidence. It appears from the answer and evidence in the cause that Von Hurter not only ap- pointed Spengeman the guardian of the complainant during her minority, but that he also constituted him his attorney, with power to collect all debts and demands due and owing or of right belonging to him in America, and after satisfying certain specified claims and defraying necessary charges and expenses, to appropriate the residue to educate, support and maintain the complainant during her minor- ity. The defendant admits that by virtue of this power, aside from the fund in question, he has received over $800, and claims to have expended in pursuance of the trust vested in him over $2,400, for which he exhibits his account. The simple inquiry now is whether the defendant is bound to ac- count to the complainant for the fund in question. Whether he has been guilty of a breach of trust by a misappropriation of the funds in his hand, and whether the account rendered by him is true and fair, may become subjects of inquiry hereafter. The defendant, by his answer, does not deny his liability to account for a part of the funds placed in his hands by Von Hurter. He exhibits an account, by which he claims to have expended, in execution of the trust for the benefit of the complainant, not only the amount of funds in his hands, for which he admits his liability, but also a large portion of the fund in controversy. But the defendant objects, first, that at the time of the sale to Korn the title to the lot in question was not in Von Hurter, but that the premises had previously been conveyed to Michael Lienan to secure a debt due to him, and to defeat the claims of Von Hurter's creditors. There is no evidence of fraud practiced or meditated in the conveyance to Lienan. If there was, the objection does not lie in the mouth of this defendant. The land was sold to Korn as the property of Von Hurter. The sale was efifected by the defendant. The title was perfected in Korn, and the purchase money was paid to the defendant as the agent of Von Hurter, in fulfilment of that contract. The defendant is estopped from questioning Von Hur- ter's title to the premises, or to the proceeds of the sale.^ The defendant further objects that this property was not pur- chased by him at the sheriff's sale, as trustee of the complainant, or for her benefit, but that it was purchased in his own name, with his own money, and for his own benefit. It is shown by the evidence that he prevented competition at the sale by stating that he wanted to save the property for Von Hurter or his family, or, in the lan- guage of another witness, that "he was going to bid it in for the "^ Accord: Collins v. Tillou, 26 Conn. 368. Compare Burton v. Wilkinson, 18 Vt. 186. 694 DUTIES OF AGENT TO PRINCIPAL. benefit of Emma," the complainant. But aside from this testimony, the defendant was not in a position to purchase the propert}- for his own benefit. He was the recognized agent of Von Hurter in the transaction, and the trustee of the fund for the complainant. He negotiated the contract of sale to Korn, and after the title had been perfected by a sale to him, under the decree of this court, he con- veyed the premises in pursuance of the contract. A purchase by an agent or trustee in his own name, while in the performance of his office, enures to the benefit of his principal, or cestui que trust. 2 Story's Eq. Jur., §§ 121 1, 1211a. Again, it is urged that the fund in question was not the property of the complainant, and constituted no part of the fund entrusted to the defendant for her benefit. The objection is founded upon the terms of the deed from Von Hurter, appointing Spengeman guar- dian of the complainant, and conferring on him the title to the ex- clusive charge of the person and estate of the complainant. Neither at that time, nor afterwards, had Emma Von Hurter, the complain- ant, anv estate in the land, and it is argued, therefore, that under the terms of the deed she acquired none, either in the land itself, or in the proceeds of the sale. It is not perceived that the terms of the deed, so far as they relate to the appointment of the defendant as guardian, can in any wise afifect the rights of the parties. The complainant was not the daugh- ter, but an adopted child of Von Hurter ; and for the purpose of this suit, the appointment of the guardian may be treated as inoperative and void. But by the same instrument, the defendant is constituted the attorney of Von Hurter, with power to collect all debts and de- mands of whatever nature and kind, either in law or equity, which were or might be due and owing, or of right belonging to Von Hurter, in America. At the date of the deed there was a subsisting contract for the sale of the land from Von Hurter to Korn, and an engagement on the part of the vendee to pay the purchase money to Von Hurter. This constitutes the fund in question. By the terms of the deed the residue of the moneys to be collected by the defend- ant, after defraying certain claims, and paying charges and expenses, were to be appropriated by him to the education, support and main- tenance of the complainant till she attain the age of twenty-one years. This constituted the estate of the complainant, of which the defendant, as her guardian, was to have the custody. It was suggested at the hearing that Lienan was a necessary party to the suit, on the ground that the decree of foreclosure was against him, as the owner of the equity of redemption, and that the surplus money arising from the sale was, by the order of this court, directed to be paid to Spengeman, he having been authorized by Lienan to receive the same. The objection has been obviated by making Lienan a party defendant. By his answer he admits the equity of the bill, and assents to a decree in favor of the complainant. ■lance ai. ru;-. i nerc • ' T to take an . 1868. SvPRr. This was r. h^]\ ^n -: pellee, ;ber made and e disclosure? have donr. thereby pre. below renu fend?int 3.}>- 01 these lands, ajnd Hme, he did not mak.. reof, as it was his duty to . ; \ relation to ' iy inadequate prl t the compla' e further fat e • ■ thA. ^ action, was th 'nd to that we VVhat was ti; land purchase* 1 seen the land, statements. \ . swer to the qi. answered that , himself, for th.- , ' ar to year; that ' )unds were not tre powered by Tayloe ■\vecn Lir pay the . eral parties ■<•,• "Vorri. oy4 dian of the ' lant, ail' elusive chai :• p(-rc;np at that time, uc ant, anv r-inu- r^ terms o the ' '-' , the conjplainanL. IS not in a position t<^ ^ own benefit. He was the recognized agent ■ r in th' tran'^nction, and the trustee of the fund for int. H nee .*' ited the contract of sale to Korn, and v. had bee. d by a sale f nder the de: • ]ie premises i ice of the a-' ij.uiL or trustee v, while m ihe ^; .iltice, enures to ^ principal, or r Stor3''s Eq. Jur., §fi; 1211, 12.11a. Ag-ain, it is urg-ed that the fund in question of the complainant, and constituted no part of the fur.- the defendant for her benefit. The objection is fouiu wj .:, n, . terms of the deed from Von Hurter, appointing-. Spengeman gua' ng on him the title to the e> .e of the complainant. Neith( Km ma Von Hurter, the complair ;s argued, therefore, that under tl^ Mone, either in the land itself, or i^ the deed, so far as thev relai ioijQatit as guardian, can in The complainant wa^ not > on Hurter; and for i' st ind exj.. o the educati ort and ;;;.:; she attain r .>f twenty-or ■e of the con ;- .i.nr.ni, of which t" :> have the <-u:'lv>dv. that Li. ■ v; decree • iity of redemption, aur. tiiat the s- was, by the nrdei .v tiiis court, dir .. c. having bee ized by Lienan " ■ection has [.. M.viated by makin. By his answer he admits the equity r aa ' What fo|: record. Ver— att. On the w ' to pure: wants hun i giving for ti get thousands c liis personal gra • land since tli . On the 14th c to ftiv^ two thi>i which then amor, he represented c;; innocently. To this, on the 2,v Washington City, th; to send him the natv the land, and when ]; Varnell in then to inve iiuigton City, the matte/ \\.\: Liic: . d a letter from Norris, relating t; li iciries is found in the letters in tli- rom Varnell to Norris, dated Ml . viiich .Varnell asks Norris if he will n this land, and asks him how he pre ' !iim what he will give for the land . uy it at a reasonable rale for you ! 'kase let me hear from you as soon a^ to Norris, by Varnell, to beconiv Was this oflfer accepted by Norris . rnell writes to Norris for an oflfer f o ■ '^closed him Foltz's letter proposin.;. - Norris shall have the refusal, an* r at once every dollar he feels likv ; rusts he can make a big strike an- ■rom it, and then asks, merely fo nch iniiv:ir;.1 nas ^een - the land ihan eight 1. K hundred -ch. and ■ken from oroposed cd rents Dut whicl. no doub^ Varnell responded by letter fron -'tion is accepted. He asks Norri ^ . arties. and th«' <'■-■■' f description ot - to this State, 01 : of April, he all right, duly exc ,.v<,,, ready for de livery, and tells Norris he can go on as there will be no difficulty. On the 3d of April, 1866, Varn^ '' ' ■ writes Norris t Washington City, acknowledging rec letter of Marcb from Norris, containing a description ot liie lands, and says he will will bring the deed wna GOOD FAITH. 697 send on the deed as directed in a few days — that Mrs. Tayloe was sick, but would be all right in a day or so. He further says he has put the consideration at $1,500. being the amount at which Norris valued the land, and says he had authority to sell at $1,500, but "the amount I make I desire no one to know." He says he will be in Virginia until Saturday, when he will start the deed, which will be ready by that time ; is glad Norris gets the land, and truly hopes he may do well with it. In a nofa bene to this letter, he says : "I said nothing to Mr. T. (Tayloe) especially of the late strike. Don't think he would have sold if I did, but I really don't deem it of any great importance. We have spent a good deal on the land, and ought to make something out of it. Though he authorised me to sell at $1,500, if he knew I obtained $2,000 he might not feel kindly about it. I have had considerable trouble and loss of time with, and ought to make something out of it, and do not deem the trans- action otherwise than as perfectly fair. I would be willing to give the price for the land myself, but I know he would not sell to me." There is nothing appearing in the record to show that Varnell was the agent of Tayloe to bargain away this land, except Varnell's statement in the above letter, nor did he, as this correspondence shows, act as such, but as the agent of Norris to purchase the land for him, he, Varnell, having volunteered to be such agent, as is shown by his letter of February 12, 1866. He was not Tayloe's agent to sell, but had a supervisory control over the lands, as stated by him in his deposition. The same position was occupied by Nor- ris. He had full charge of the land, and granted privileges in it, and to that extent was the agent of Tayloe. Norris well knew Varnell was not the agent to sell the land, but he made him his agent to purchase. What, then, was Varnell's duty under the circumstances? Stand- ing in a quasi confidential relation to Tayloe, and at the same time an agent of Norris to purchase valuable property which Tayloe had entrusted to him, it seems one of the plainest dictates of justice and honesty that Varnell, when negotiating with Tayloe to purchase the property, should have communicated to him all the knowledge he possessed, by the letters of Norris, of the supposed mineral wealth of the land, all of which he studiously withheld, believing, as he says, "it was a matter of no great importance." At the time the letter of March 14, by Norris to Varnell, was written, proposing to give $2,000 for the land, the survey, which de- termined most important interests, had not been made, but it was made by the county surveyor about the middle of March, or a few days after the letter of the 14th. That survey developed the fact that a rich lode, not before certainly known to be on that land, was in fact on it, greatly enhancing its value, and even when the letter was written, sufficient developments had been made to justify the belief that the tract contained rich diggings, as in the months of 698 DUTIES OF AGENT TO PRINCIPAL. January up to the 23d of March, about 90,000 pounds of mineral, and up to April ist, about 140,000 pounds were raised on it, so that it is very evident, the realities and the prospect together made the land immensely more valuable than the price offered and received, and these facts were known only to one of the contracting parties, Norris, and he acting and standing in a fiduciarj^ relation to the owner, of whom, through Varnell, he purchased at a greatly in- adequate price, which, on Varnell's own admission, Tayloe would not have accepted had he known the true state of the facts. We cannot but think it was Norris's duty, before he permitted his offer of March 14 to go before Mr. Tayloe, to have communicated, fully, the result of the survey which was then in the process of exe- cution, and which he could have done in his letter of March 27. By accepting the position of an agent to take charge of this land, collect the rents and royalty, and pay the taxes, a fiduciary relation was thus created in regard to whatever related to the land. Confidence was reposed that he would act in all things for the interests of his constituent. Good faith required he should have communicated these important facts, developed by the survey, before he permitted his constituent to sell. But even that which was certainly known, that it was mineral land with flattering prospects, was not communi- cated by Varnell, his agent, to Tayloe, their common constituent. As for the other appellant, Foltz, it is very evident he had full knowledge of what w^as going on. Substantially he was a party with Norris in purchasing. We fail to perceive any error in the record, and must affirm the decree. Decree affirmed.^ ROCHESTER v. LEVERING. 1885. Supreme Court of Indiana. 104 Ind. 562. Mitchell, J. — A complaint filed by John Levering against Made- line Rochester, and a cross-complaint filed by the latter against Levering, constitute the basis of the controversy exhibited in the record in this case. The complaint seeks a recovery upon an account exhibited with it, for services rendered, money loaned, paid out and expended by the plaintiff at the defendant's instance and request. The cross-com- plaint charges that from the year 1862, down to and including the year 1878, the plaintiff. Levering, was in the relation of agent and ^ An agent, for the transmission of money is liable for any loss occurring through his failure to notify his principal of the manner of transmission. Clark V. Bank of Wheeling, 17 Pa. St. 322. :ol and niun;.iC"; r: . tss a large • lut ner. Upon i •cts, witi, itl) the ' epted to an: respectively, < The cor. period of adjusl That i findin the r agent?, _ south sidt. -4.,cxx), i' About th< ff ^'v acres for .'^ ering ' remaii would giv( to find a p by her, wt; but the hig.v Ball. The inv 'ts main valiie its with a vi^' • ^tate the real hereinafter ni:( found to be $4 ; It is found ii:.: .evering was acii and while acting r. proposed to buy i liicntioued, vv proceeds of Sin He represented 1st, about i.i ident, the realities and ine j ^ely more v;!:i' '>' 'Cts were • i.ai he ■'■■* of who- ..■.c4i:ate price.. nut have accept. We cannot but tii' offe: . •' ^[arch 14 l ful" suit of the survey '•■ .v.. vvhich he ■■r,n]r \.: g the positic ru^ , cziis and r thus created in W2 than the 1 to one ling in • ell, he 1. '.niell's wm the ' wiiich was then in ^^ ,T,.iip in his letter ; . ....... _, .ake charge of this land, coUee ■-^^ a fiduciary relation vr^ 1 to the land. Confiden. i all things for the interests •' ' d he should have cojnmur jy the survey, before he perr . . '.1 that which was certainly kr. _ flattering prospects, was not commun- ■ ) Tayloe, their c'" ■' '^"^ -constituent. I. Foltz, it is vc it he had fii' Substanuiiiiy ne was a pan , ior in the record, and mui^t affirm tli 1S85. SUPE. NA. 10- Mitchell, J. — A line Rochester, and Levering, constitute ui'. record in this case. The complaint seeks • fur j^TVice? rendered, 11 ■ plaintiff at the defendant,^ distance plaint ciiarges that from the year i;i year 1878, the plaintiff, Levering, was ' An ag<-nt, for i.h rough h"; faiiurt • Bank of Wheeling. 17 k'.-. d by John Levering against Made plaint filed by the latter again - '• •' - "'■- - hibited i" ^ •d wkn -d by ti tion of agent ari GOOD FAITH. 699 attorney to the defendant, Mrs. Rochester, having in charge the con- trol and management of all her property and business, and that while in such relation he so managed her affairs and business and dealt with her as that upon an accounting and proper adjustment of their business a large sum of money, amounting to over $20,000, would be due her. Upon issues made the case was heard and a special finding of facts, with conclusions of law stated thereon, filed by the court. With the facts as found, both parties are content, while each ex- cepted to and are yet, by assignment of errors and cross-errors, respectively, contending against some of the conclusions of law. The controversy involves a great variety of transactions, covers a period of more than eighteen years of business, and required the adjustment of an account aggregating but little short of $80,000. That it was reduced to the order and symmetry in which the special findings present it, is abundant evidence that the case was tried with extraordinary care and ability. The facts upon which the first conclusion of law is based are, in substance, as follows : Mrs. Rochester, in addition to a large amount of other property, was the owner of thirty acres of land in the extreme south part of the city of Lafayette. Through her agents, Mr. Levering and his brother, she sold fifteen acres off the south side of this tract to Owen Ball for $4,000, in August, 1865. About the same time Ball offered to purchase the remaining fifteen acres for $3,500. This was refused. The appellant and Mr. Lev- ering about that time went to Ball and solicited him to purchase the remaining fifteen acres for $4,000. Ball again offered $3,500, and would give no more. Mrs. Rochester then requested the appellee to find a purchaser for this tract and other unimproved lands owned by her, which she was anxious to sell. This the appellee tried to do, but the highest offer made for the tract in question was $3,500 by Ball. The tract was unfenced, unimproved and unproductive, and its main value was probable and prospective for platting into town lots with a view to selling it in lots. The court finds it difficult to state the real value of the tract at the time of the sale to Levering, hereinafter mentioned, but its approximate value at that time was found to be $4,500. It is found that on the 19th day of February, 1869, while ^Iv. Levering was acting as the confidential agent of Mrs. Rochester, and while acting as her agent to sell the tract of land mentioned, he proposed to buy the land from her himself, at the price of four thousand dollars, agreeing that he would lay it out into lots, as an addition to the city of Lafayette, and that he would pay the price mentioned, with six per cent, interest, in money or notes, out of the proceeds of sales of the lots. He represented to her that, in his opinion, it would be better for her to sell it to him than to hold it. It is found by the court that he yOO DUTIES OF AGENT TO PRINCIPAL. fully and correctly communicated to her all the facts of which he had knowledge about the tract of land and its value, and that he made no misrepresentation, nor did he conceal from her any fact concerning the land or its value, and that the price offered, so far as could then be known, was not manifestly inadequate. Mrs. Rochester had full confidence in the judgment of her agent, and relied upon his advice as to the propriety of making the sale, and concerning the value of the land. Under these circumstances, and without consulting any person other than Mr. Levering, the appellant sold the tract to him on the terms proposed, and executed to him a warranty deed therefor. As evidence of his obligation to her for the purchase-price, he executed an instrument of writing signed by him, in which the purchase of the land is recited, and in which his agreement to pay is stated as follows : "I am to lay out said land into town lots, as an addition to the city of Lafayette, and will pay to said Madeline Rochester, out of the proceeds of the sales of said lots, in money or promissory notes taken, the sum of four thousand dollars, with interest at the rate of six per cent." It is found that the tract was laid out into sixty-nine town lots, in the month of April, 1869; that a plat was filed, calling it "John Levering's addition to Lafayette," and that from May 28th, 1869, to August 9th, 1874, Levering sold thirty-nine lots, receiving for prin- cipal and interest from such sales, in the aggregate, $9,010.85, leav- ing thirty lots still unsold. The purchase-money was never actually paid by Levering, but in a settlement had on the 15th day of June, 1874, which was after- wards found to be erroneous. Levering credited Mrs. Rochester's account with the $4,000 and the accrued interest thereon, according to the contract as modified. The appellant paid out about $600 for the improvement of Fourth street, which ran along or through the tract; but this sum was paid by using a judgment, which belonged to Mrs. Rochester, against one Austin. This judgment was used by Mr. Levering, upon an agreement with Mrs. Rochester that he would change his obligation to her so as to allow ten per cent, in- terest on the $4,000 purchase-money for the land, instead of six. This was accordingly done. The court also found that Levering had a well appointed and cen- trally located office in the city of Lafayette, with two or three clerks constantly in attendance ; that by reason of these facilities, and his extensive business connections and his energy and industry, he had great advantages in effecting sales of real estate ; that soon after the purchase from Mrs. Rochester, Fourth street, lying along the east line of the addition, laid out of the land purchased, was improved, and on that account lots in that locality became more desirable ; that many of them were sold at prices largely in excess of the price paid for the land in bulk. The court finds it impossible to state how -t some 1 fouiui that Mrs. '•■■• -'erienced '"' ; that < . ir. Leveri! ,^ Otis to her, and her property always open 'lem. The fir- 1 the la- •nu, a. The ustee or .■ihor \, hich, in •■ . rectly r - >^ relevant t. .;: 'operty earn- i, -•' om hiin- £ the pr- : ppositions intiexibly ■ The facts frsnnd >' >'/hile they disclose :. laracter bet\ :ent of the h cerned, they a; he did not, in irticular tract o ,-ciid Madeline wa- unimproved land therefor, which hi confidential accent acre tract, df preted, this n ■ isiness agent to t irchaser for the 1... \i^ as agent to sell he jiroi ■ 1 and negotiate with lie: ; >ntroversy. The case is one arising o , miTiunicated to her all th< ■)oui luc tract of land and its valut ation, nor did he conceal from h.: iiic !,. ui or its value, and that the price oT l)e i- f.own, was not m?r>''*'f"=t1y inadequate corinrlence in the ju ■' agent, auu a^^ to the proivricls ■ s.'de. aivl c the. land. Under thc.->'j v ■i^mw.-i.ii. ^ >..-., .,,.^.; «......-..■. v. other than Mr. Levering:, the appellant sold the tract h he ha< Liien ! ttdl terms proposed, evidence of his v an instrument oi A^ the iijV:. the o f no! rat- land is recited. iiim a warranty deed tn- rf i. ':^r the purchase-price, he executed him, in which tl' agreement to p.' nd into town lots, as an addition : '■'•' said Madehne Rochester >> lots, in money or prom^ ■ ' ''" '•"'■ interest ai nd out into sixty -mne town lots, ;: a plat was filed, calling it "Joli and that from May 28th. 1869, ' [livty-nine lots, receiving for prii the aggregate, $9,010.85, lea\ vas never actually paid b; g, but i ' ' V of June, 1874, w. f' = ,evering credited Mr .iccrued interest thero appellant paid out r L, which ran alor )ugh tii ising a judgmer; belongs iistin. This judr used b "^ with Mrs. Iv^.n. > •. that !• o as to allow ten per cent, iii ■ : the land, instead of ■ wa. • account wi* to the contr; the improvemei tract; but this ; to Mrs. Roches! ' Mr. Levering, ujc would change his oV terest on the $.• This was accort' , - The court also foumt liiai had a n trally located office in the ctt) .yette. v constantly in attendance ; tiiat by reason of thest extensive business, connections and his en^^' -^ ^' great advantages in effectlrig sales of rea; purchase from Mrs. Rochester, Fourth - line of the addition, laid out of the land and on that account lots m that local' many of them were sold at prices lari. ■ the land in bulk. The court finds it unT))> iibie "ited and : three (.■■ . . and h' .i V, he hj! oon after tb ^ong the " -as impf: '.csirablfc the price to state GOOD FAITH. 70I much of the advanced price obtained was due to the superior faciH- ties and the individual energy, industry and efforts of Levering. Among other facts found, in addition to those above recited, which cast some Hght on the transaction, it may be stated that it was found that Mrs. Rochester was a lady of superior intelligence, but inexperienced in business matters, or in relation to the value of real estate; that she had entire confidence in the judgment and honesty of Mr. Levering ; that he generally explained all business transac- tions to her, and that he had the entire management and control of her property and business ; that he kept her accounts, which were always open to her inspection, and that she frequently examined them. The first conclusion of law stated by the court was, that the sale of the land was valid and binding and free from actual or legal fraud, and that the plaintiff Levering's account should be charged with the sum of four thousand dollars, the purchase-price of the land, as so much money received by him at the date of the sale. The conclusion of law which affirms the validity of this sale is the chief subject to which the appellant's argument is directed. It may be remarked, that so far as the contention relates to sales b}- a trustee or other person having a power or agency to sell property, which, in the execution of such agency, the agent or trustee either directly or indirectly sells to himself, the argument is not deemed to be relevant to the case under consideration. That an agent to sell property cannot, either directly or indirectly, become the purchaser 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 manage- ment of the financial and business affairs of the principal were con- cerned, 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, defendant proposed to buy it himself." Fairly inter- preted, this means that while in the relation of general confidential business agent to the appellant, Mr. Levering was requested to find a purchaser for the land who would pay a fixed price, and while so act- ing as agent to sell he proposed to purchase the land from his princi- pal and negotiate with her the purchase which is now the subject of controversy. The case is one arising out of a transaction between a confidential 702 DUTIES OF AGENT TO PRINCIPAL. agent and his principal, who purposely and intentionally dealt with each other concerning a subject-matter involved in the agency. The result of the negotiation between the two was, that the principal consciously 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 severest scrutiny. Its purpose will be to see that the agent, by reason of the confidence reposed in him by the principal, secures to himself no ad- vantage 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 in- formation 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 pertain- ing to the subject of the sale and the value of the property, and that there was no suppression or concealment which might have influ- enced the conduct of the principal. McCormick v. Malin, 5 Blackf. 509, 522 ; Cook V. Berlin, etc., Co., 43 Wis. 433 ; Porter v. Woodruff, 36 N. J. Eq. 174; Young v. Hughes, 32 N. J. Eq. 372; Farnam v. Brooks, 9 Pick. 212; Moore v. 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 intervention, in any contract of purchase or sale with the principal, or other trans- action by which the agent obtains a benefit, a presumption arises against its validity which the agent must overcome ; although this presumption is undoubtedly not so weighty and strong 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 com- municated to the principal, any lack of the perfect good faith which equity requires, renders the transaction voidable, so that it will be set aside at the option of the principal. If, in 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 Pom. Eq. Jur., § 959. Subject to the burdens thus imposed, as was stated in Fisher's Ap- Jl L.4UII cu, i'e lig:ht fact«. . Roche; de bv mucn mg of > nature of tl.e l: from the '^r' affairs at i' speculation ;;. part of 187". ' lots dispo' in tlie pa til value, as been forty that the pr' ice was : antz, 6 ^ ■ idence : .'.'ins to \. way of pre^ n of frail' require - ion, of to c: .ionarenr. -ix ' ■ changes in the S3, we think all '■'... certain to a coin'U' iiitable. ''~'' ' 11 of evi '■> acipal, ;i>,i-rning a si ' ijVl i-i> negotiation betweei the •.iiaiU'Jtev ».!■ U 1 orincipal, of public p( ' erlheless, sui J^ . I, l.l. , . Its ptv".. ■e that the a;. confidence repos •rincipal, set ■ , from the en the trans. ;cr ed, a presimr i validity arises, a .i.....-a!ne.> ; the U'ely appear fairly, and i: to his princii formation c- , possessed by him. 1 1 , > .' ■ . V. ! 1 ", <"ansaction having hat the bargain ^ was fair r<: within his knowledge peruu; he value of the prone ■ity. and tha. which ' * wrmick v. 43 Wis. 433; Porter V \VQodruii lies, 32 N. J. Eq. S7- ■ V'":irtinm -> ndlebaum, 8 Mich. 4 ■haracter under cons! ' .'■; ,. U( ^li, Ul' .rned author in the following lav? iCU:. ;h the principal'' • with the princii' IS a benefit, a pi . .nt must overcome , i weighty and stp"" ' a reasonable cor itT trau> on arise ilthough thv •: -i^ the ca^v •n is pai a.i' ken, is not of its .^nt. An} unfv 'cr, any use of kr not com munica! f the per .h whic! enuitv i •.m void- ncipai. •: will !-■. ' [ jjcii i-Cvi . . !, , lo-fj , , . > ^' .•-■ . »-. , 1 ■ iiis prin>. - though ere a ?t ■ liHrgai;; i-r price ' on his ith full the su! ,u;.;ioi- Oi the tr f the per^.o;! v. iia w horn h( ■iealing^. and gav' isent -if all th'-'-f^ are affirmai . proved, the pre? is valid.' 2 Potn, Kn. Jur., ., -.,,,. ■ ■ I ! 1 i ' '. ;r ' * the burdens thus impose* : stated in Fisher's Ap- GOOD FAITH. 703 peal, 34 Pa. 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." In the light of the foregoing principles we may now briefly recur to the facts. Airs. Rochester and her agent called on Mr. Ball, who had bought half the thirty-acre tract, and solicited him to purchase the remain- ing fifteen acres at the price of four thousand dollars. He refused to pay more than thirty-five hundred. The agent, then being solicited to find a purchaser, was unable to secure an oft'er in excess of that made by Ball. The property being unproductive, its value purely prospective and largely contingent on events that might or might not happen, such as the growth and improvement of the city to which it lay contiguous, and the demand which might arise for lots in that direction, can it now be said, after this lapse of time, that the price paid was not fair? That it was difficult to ascertain the real value of the land with much certainty at the time of the sale, is disclosed in the special find- ing of facts, and that it was necessarily so is inherent in the very nature of the case. Considering the length of time which intervened from the sale until the investigation was set on foot, the condition of afifairs at the time the sale was made, the inflation in values, and the speculation in real estate which ensued, and continued until the latter part of 1873, covering the period during which substantially all the lots disposed of were sold by Levering, and the obstacles which lay in the path of the investigation are apparent. That the approximate value, as arrived at under these circumstances, is stated to have been forty-five hundred dollars fvdly justifies the further statement that the price paid was not manifestly inadequate, in effect that the price was fair. As was said by Mr. Justice Story, in Prevost v. Grantz, 6 Wheat. 481, "length of time necessarily obscures all human evidence ; and as it thus removes from the parties all the immediate means to verify the nature of the original transactions, it operates by way of presumption, in favor of innocence, and against imputa- tion of fraud. It would be unreasonable, after a great length of time, to require exact proof of all the minute circumstances of any trans- action, or to expect a satisfactory explanation of every difficulty, real or apparent, with which it may be encumbered." When it is remembered that the transaction was had in February, 1869, ^"cl that it was permitted to stand unchallenged through all the changes in the situation and fluctuation of prices until January, 1883, we think all that can be required of the defendant is to make it certain to a common intent that the price paid was fair and equitable. This has been done. That the purchaser, by the succes- sion of events, the rise in value of the property on his hands, coupled with his energy, ability and industry, and his facilities for selling 704 DUTIES OF AGENT TO PRINCIPAL. the lots, sold the property for more than he paid for it, cannot now be taken as the measure of its value at the time of the purchase, nor can it be assumed on that account that the plaintiff was over-reached in the purchase. Fisher's Appeal, supra. Having paid a fair price for the property, and fully communicated to his principal all the facts within his knowledge about the land and its value, misrepresenting nothing, concealing nothing, the appellee has brought the transaction within the rule which authorizes it to stand. As related to the subject we are considering, it was urged on the argument that the obligation given for the purchase price was such that the purchaser came under no absolute contract to pay for the land, that his liability to pay was contingent upon his realizing the amount stipulated to be paid from sales of lots, and that this was so unfair that the sale should have been set aside. We do not think the contract admits of the construction contended for. The contract recited that the land was conveyed at the price of $4,000. The import of this was a debt for a specified amount then presently due. The unilateral stipulation contained in the writing, to the effect that the purchaser would lay the land out into lots, specifying no time, and pay the amount with interest out of the proceeds of sales in money or promissory notes, was, if of any force whatever, at most an agreement on his part that he would do so within a reasonable time. It is insisted that because the Austin judgment which belonged to Mrs. Rochester was used by her agent to pay for the street im- provements, and because the amount of the purchase price of the land and the accrued interest thereon were liquidated by being in- cluded in a partial settlement made in 1874, which was afterwards found to be erroneous, an imputation of bad faith in making the pur- chase of the land arises. These were all matters occurring long after the transaction which it assailed was completed, and cannot be supposed to have been contemplated. They did not exist at the time the land sale was made, and could, consequently, have exerted no influence upon it, one way or the other. They were matters only relevant to be considered in the adjustment of the accounts between the parties, and in that connection they were considered by the learned court and properly adjusted. The sale of the land cannot be affected by independent dealings or transactions which were had afterwards, and which had no relation to the principal transactions here involved. Sherman v. Hoagland, 54 Ind. 578.^ * * ^' ^ Judgment affirmed. ^ A portion of the opinion is omitted. "See Curry v. King (Cal.), 92 Pac. 662. iring a cert. :rchasing an r her; that ,. r, during s; Liring said [v $6,225, or tlu due her from < defendant an- plaint. ' than .^ plaint'! ant ;tv HULK: which purchase .i facts as to by defendant in the an'sw'^^^ $3,600 alle; fused to c''" plaintiff up $9,92070 ( judgment, : judgment '- paid out in when defer for plaintif!' was one of . the interests si; , and she did not a member of s; • about to purchr. '' said S)ndicat .or plaintiff. th< $55,500, which 'hat he did not nolj; 'mid not have an idicate. 45— Reinhard Cases 704 oiint that til' •"•"'^.1, supra micateci ■ "-.: land an<.i :; the appellee has ruk vvi.ich autiiorizes it to stand. . cd to tlie subject we are considerir ■at that the obligation jjiven for the pi he purchaser came i '; ■ no absolute C'-i. I now e, nor -reach- -'•■ pric\, facts id, that his liability t amount stipulated tr- ' unfair that the sal* We do not th " for. The cont: $4,000. The V'. presently due h' the efft eluded found lo nt' cr; chase of the Ki after the tran^ be supposed to time the land si- no influence upc _ .. relevant to be consi the parties, and in learned court and 1 "' rted by inde]) rds, and wh: ii.v _d. Sher. affirmc s contingent upon hi n'.fin sales of lots, and tiun. iiave been set aside. ict admits of the construction contcnucd it the land was conveyed at the price of was a debt for a specified amount th il stipulation contained in the writin aser would lay the land out into lot "■he amount with interest out of t! imissory notes, was, if of any for ucnt on his part that he would do ^ the Austin judgment wlr her agent to pay for ■ .i nount of the pur ce of ti M,.i-ec!T-i n-ere liquiu.;.; ., . being i- S74. which was afterwar> u bad faith in making the pu: re all matters fKcurring lot ed was cout ' ed. They (' 1 could, consequ^ the other. The} thi' adjustment of th' "^ • tion they were ^.n -ted. The sale of tht 'd cann ist at t! e exert c Iters on' , betwei .vd by tl land cann .ich were h;- ! transactio! land, 54 I GOOD FAITH. 705 STERLING V. SMITH. 1893. Supreme Court of California. 97 Cal. 343. AIcFarland, J. — In her complaint, the plaintiff averred that, during- a certain period, defendant was her confidential agent in purchasing and selling real estate and in transacting other business for her ; that as such agent and for such business he received from her, during said period, the sum of $11,920, or thereabouts; that during said period he paid out and expended for her the sum of $6,225, or thereabouts, leaving a balance of $5,695, with interest, due her from him; and for this last sum she prays judgment. The defendant answered, admitting the agency as alleged in the com- plaint, but denied that he had received of plaintiff's money more than $9,920.70. The court found the defendant had received of plaintiff's money only the said amount of $9,920.70. But the defend- ant averred that, in addition to the said sum of $6,225 P^i^ out by him for plaintiff, as averred in the complaint, he also paid out for her the further sum of $3,600. He averred that this latter sum of $3,600 had been paid out by him for her in purchasing certain interests in what is called generally the Kansas Street Syndicate, which afterwards became a corporation, and was engaged in the purchase and sales of land, principally at Pasadena, California. The facts as to this syndicate, and the expenditure of money of plaintiff by defendant in connection with the same, are stated in great detail in the answer. The court found against the defendant as to the said $3,600 alleged to have been expended with said syndicate, and re- fused to allow defendant for the same, and entered judgment for plaintiff upon the basis of allowing defendant, as against said sum of $9,920.70 only the sum of $6,503.75. Defendant appeals from the judgment, and the only point made by him for a reversal of the judgment is the refusal of the court to allow him for said amount paid out in said syndicate. The court found that, prior to the time when defendant made the purchase of interests froin said syndicate for plaintiff, "he had already become a member of said syndicate, and was one of the joint owners of the property of said syndicate, and of the interests so purchased by him for her ; that he did not inform her, and she did not know at the time she made said purchase, that he was a member of said syndicate, and a part owner of the interests he was about to purchase for her, but led her to believe he was not a member of said syndicate ;" and that at the time defendant made said purchase for plaintiff, the syndicate was indebted in a large amount, exceeding $55,500, which defendant had been instrumental in incurring; and that he did not notify her of said debt, but represented to her that she would not have any calls to pay if she became a member of the syndicate. 45 — Reinhard Cases. 706 DUTIES OF AGENT TO PRINCIPAL. The main contention of appellant is, that the findings above re- ferred to are entirely outside of any issues made by the pleadings, for the reason that the complaint does not contain any allegation of facts constituting fraud of any character, or any allegation that appellant was a member of the syndicate, or that she did not know of his having an interest therein, etc., which allegations appellant con- tends were absolutely essential, in order to admit evidence upon the subject. This position, however, is not tenable. Our system of pleading does not include a replication, and, under § 462 of the code of civil procedure, "the statement of any new matter in the answer, in avoidance or constituting a defense or counterclaim, must on the trial be deemed controverted by the opposite party." The averments in the answer as to the investments in the syndicate consti- tuted new matter ; and if a replication were allowable, the plaintiff, by such a pleading, could have set up the facts found by the court as aforesaid. But under our system of pleading, she is deemed to have set up such facts. No doubt, when a cause of action rests upon fraud, the facts constituting the fraud must be set up in the com- plaint ; but such was not the case here, for the necessity of proving fraud appeared only after the answer of the defendant. And a plain- tiff is in that position with respect to all new matters set up in the answer. (Williams v. Dennison, 94 Cal. 540; Grangers' Business Ass'n V. Clark, 84 Cal. 204; Colton Land, etc., Co. v. Raynor, 57 Cal. 588; Curtiss v. Sprague, 49 Cal. 301; Canfield v. Tobias, 21 Cal. 349.) In Colton Land, etc., Co. v. Raynor, 57 Cal. 588, the court, in speaking of said § 462, say : "This has always been regarded as allowing a plaintiff, in reply to such new matter, to introduce on the trial any evidence which countervails or overcomes it, as if it were inserted in a replication, and pleaded with all the precision and fullness which the strictest rules of law ever required." With respect to respondent's criticism of the findings, it is sufficient to say that, in our opinion, they are full and specific enough, and that no further findings were necessary. As to the merits of the case, it was not necessary for the respond- ent to prove or for the court to find expressly that the acts done by appellant were done with fraudulent and wrongful intent ; because the acts themselves were of such a character, considering the rela- tionship of the parties, that the law imputes fraud. In Pomeroy's Equity Jurisprudence, § 959, the rule, as between principal and agent, is stated as follows : "Equity regards and treats this relation in the same general manner, and with nearly the same strictness, as that of trustee and beneficiary. The underlying thought is, that an agent should not unite his personal and his representative characters in the same transaction ; and equity will not permit him to be exposed to the temptation, or brought into a situation where his own personal interests conflict with the interests of his principal. In dealings without the intervention of his principal, if an agent for the pur- '-■:•:. at tne option ii:t, absence of 'in wholly immater: • ■ '^ edy, except lu- ;-." (See also. B i he object' iient, hecar.' •!o such rati! •o show ■'•' .bout til such tht .. . to noticr Judgment 1870. •kAvE-, j.- certaiii c< n a case - 1 ne defend, '. '.\i:e, and he ei in writing a!) ich entries. ....jg down the a » and rate of inter : the agent prj or not) ^' '' . ' reap an. 'he agent . Co., 3 Ga. Ai rrtrticiilarly I' . Law Rr t must !!• . ilolland. 2 Bii '[]:■■: main coi. icire'! »o are en for m thai ilie of ' -tituting fra appellant was a member <■ his having an interest thi. tends were absolutely e- th.e subject. Th' '*' pleading does n code of civil pr answer, in avoid.* on the trial be deen averments in ^'^f" '^n- tuted new r. by such • • as afor- have se! fraud, 1' plaint ; !.: fta-v) ■:■ WCxL ... fullness With rcsp to say that, i- no further f As to the 1 . ent to prove or for i appellant were done the acts themselv tionship of the pan Equity Jurisprudent agent, is stated as f c "; in the same general i that of trustee and b agent should not unit' in the same transaction ; and equity will nc to the temptation, or brought into a situat interests conflict with the interests of 1:> wirJiout the intervention of his principal pciiani lb, tiiut :' of any issues n: t does not • character, ■ , dicate, or th know ot . which alle:,, "" ■""- n order to . er, is not tc: :i cation, and ement of any new luaLlcr m the ■■• a defense or counterclaim, must ' by the opposite party.'' Th( . . -itments in the syndicate consti- ition were allowable, the plaintiff, ■'V the facts found by the court of pleading, she. is deemed to wnen a cause of action rests upon I'raud must l>e set up in the corn- here, for the necessity of provin,;.: . cr of the defendant. And a plain- all new matters set up in the Cal. 540; Grangers' Business Land, etc., Co. v. Raynor, 57 *. ai. 301; Canfield • "^^ ' Co. V. Raynor, 57 \' : ''This has always becu regarded such new matter, to introduce on ntervails or overcomes it, as if it ■ pleaded with all the precision and •f law ever required." 'icisni of the findings, it is sufficient full and specific enough, and that not necessary io^^ the respond- xpressly that done bA- . and wrongli ; ; l>ecause a character, considernig the rela- .vw imputes fraud. In Pomeroy's rule, as between principal and ly regards p ■vith nearlv this relatiovt strictness, as :it is, that an live character ^ un to be exposed his own person:! ■ ■al. In dea' I; ent for ''' GOOD FAITH. 707 pose of selling property of the principal, purchases it himself, or an agent for the purpose of buying property for the principal buys it from himself; either directly or through the instrumentality of a third person, the sale or purchase is voidable ; it will always be set aside at the option of the principal ; the amount of consideration, the absence of undue advantage, and other similar features are wholly immaterial ; nothing will defeat the principal's right of remedy, except his own confirmation after full knowledge of all the facts." (See also, Burke v. Bours, 92 Cal. 108.) The objection that the findings are insufficient to support the judg- ment, because they do not contain an express statement that the re- spondent did not ratify the investment in the syndicate, cannot be maintained. The findings clearly go upon the theory that there was no such ratification ; and, moreover, there was no evidence tending to show any ratification after respondent had learned all the facts about the transaction. Appellant was not entitled, upon the eidence, to a finding that there had been such ratification. Neither do we think that the stipulation of counsel referred to in finding 14 can be held as estopping the respondent from attacking the validity of the investment in the syndicate ; and the trial was not conducted upon any such theory. There are no other points which we deem it neces- sary to notice in detail. Judgment affirmed.^ SCRIBNER AND POTTER v. COLLAR. 1879. Supreme Court of Michigan. 40 Mich. 375. Graves, J. — The plaintiffs recovered judgment against defendant for certain commissions, and a review of the proceedings is asked upon a case made. The defendant owned certain real estate he wished to sell or ex- change, and he employed the plaintiffs to aid him. The arrangement was in writing and signed by defendant in a book kept by plaintiffs for such entries. After designating the property and the price and setting down the amount to stand on mortgage and the time of cred- it and rate of interest, it proceeded as follows : ^ "If the agent practices upon the principal any deception (whether inten- tional or not) whereby the principal is misled and damaged and the agent would reap any benefit, the transaction is fraudulent and the courts will not allow the agent to take or retain the benefit." Powell, J., in Williams v. Moore- Gaunt Co., 3 Ga. App. 756, 760. See particularly Powell and Thomas v. Jones, 21 T. L. R. 55, and discussion in 18 Harv. Law Rev. 309. The agent must not mingle the principal's property with his own. Bracken- ridge V. Holland, 2 Blackf. (Ind.) Z^T, 383. 708 DUTIES OF AGENT TO PRINCIPAL. "I hereby place the above described property in the hands of Messrs. Scribner and Potter for sale, or exchange for farm property at my option, and agree to pay them a brokerage commission of 2^ per cent, when sale or exchange is made, and further agree to render all the assistance I can in making such sale or exchange." At the same time this arrangement was made, the plaintiffs were under a similar retainer from persons by the name of Warren, who had a farm they wished to sell or exchange. Of this fact the defend- ant was ignorant. In the course of a few weeks the plaintiffs facilitated the opening of negotiations between the Warrens and defendant, and the parties mot long after, through the aid of plaintiffs, consummated a trade, the Warren property, however, being granted tO' Homer A. Collar, a son of defendant. There were some special circumstances con- nected with the substitution of the former for the latter as grantee which are somewhat obscure, to say the least, but the result is not governed by them. After this trade it was ascertained by the de- fendant that during the negotiation the plaintiffs were acting under retainer from the Warrens, and for an agreed compensation, and he objected in the court below and objects here that the fact is a com- plete answer to the action. The plaintiffs' counsel have not contested and do not contest the principle that the same person cannot be the agent of both parties in reference to a matter where discretion is to be exercised upon inter- ests which are conflicting. He contends that the plaintiffs were not in that situation, but on the contrary that the retainer taken by the plaintiffs required them to do no more than bring the parties to- srether, and that in this the interests of defendant and the Warrens were concurrent and not conflicting; that these persons were left to negotiate as they pleased and uninfluenced by the plaintiffs ; that no opportunity existed for any infringement of good faith, and that it was just and lawful to take employment and pay from both sides. There is nothing in the record to impugn the personal fairness and integrity of purpose of the plaintiffs in this transaction, and the only question is whether the undisclosed arrangem.ent to act for each side so accords with public policy as to afford a ground of action to recover pay for the service. There is some contrariety of decision in regard to the right to accept a double retainer and double pay, even when the fact is disclosed to both parties. Farnsworth v. Hemmer, i Allen 494 ; Walker v. Osgood, 98 Mass. 348 ; Pugsley v. Murray, 4 E. D. Smith 245 ; Everhart v. Searle, 71 Pa. St. 256 ; Raisin v. Clark, 41 Md. 158; Schwartze v. Yearly, 31 Md. 270; Mjorison v. Thompson, L. R. 9 Q. B. 480, 10 Eng. 129; Rice v. Wood, 113 Mass. 133; Lynch v. Fallon, 11 R. I. 311. But the cases are nearly, if not quite, uniform that where the double employment exists and is not known, no recovery can be had against the party kept in ignorance, and the result is not made to I >ut is a consequence of e^ The opinion has been c- nerely as a middleman !■ n negotiation and h; ufluence, he may la^A Sampson, i6 Gray 398 ; bv ases may occur; but t' learly before they shoul n Walker v. <>- croon. - ind pointed omI ih- 1 vvas employe svas to brinj? n this ca?'; :m> writing o.n A-iiicr: hat defendant an mutual TV ••'••'• ■ thing or The w: lands ai should Ix' -i .■ . itford tht- p: ir exchange. The cc :han to constitute the icular third person. legotiate w .;otiate and he plain ■' .heir juui,/!'. ract entered he view mo^. laim did not • the writin;. !ian that cau< • !ie alleged ca •e urged by p; iiore or less or :. elations caused mder it. If thei; Jiey owed him tl o reach a result ^mission to niteritr-.- .uty, and this failure \ erse retainer. The par my bias and still l:>c ins^ losition instead of the he There might h- •i--- - *' /CxS r)lace tl" e hands ''t : ,. bcnbiier .t property > option, and of 2^ ])cr cent, when ^ i^ iiia<(C - 1 n rencitr all the asj- Making si ■ (. , At the same tit .■ement was m.id( ts were under a simila-- '■ jjersons. by the m^ n, who had a farm tl.- ^n exchange. Of defend- ant was i In the o, the plaintiffs facilitaterl i ■ r, ^^: of nc irrens and defendant ■:'■. not 1 ■ of plaintiffs, consu; ^ ' 1 . . the • ever, being granted to Homer A. Collar, were con to negoti:.. no opportuni! it was just av There is notL integrity of ' only question ■. side so accords '■ to recover pay for in regard to the rigiit to even when the fact is d Hemmer, i Allen 494 ; Walker v. Osgood, Murray, 4 E. D. Smith 245 ; Everhart v Raisin v. Clark, 41 Md. 158; Schwart?:e M)orisou V. Thompson, L. R. 9 Q. I^ Wood, 113 Mass, 133; Lynch v. Fallon But the cases are nearly, if not quite, double employment exists and is not' knowi re were some special circumstances con- n r,{ the iomier for the latter as grantee to say the least, but the result is not trade it wa? ascertained by the de- \;tion the plainti.'^s were acting under ' for an agreed coinpensation, and he d objects here that the fact is a com- not contested and do no^' contest the .> cannot be the agent o^' -■♦^ "n.rties in c discretion is to be exerr :i inter- He contends that the piainva.- were not e contrary that the retainer taken by the > do no more than bring the parties to- "ritcrests of defendant and the Warrens icting; that these persons were left l uninfluenced by the plaintiffs; that infringement of gxxxl faith, and tl at mployment and pay from both sides, to impugn the personal fairness anc' 'tiffs in this transaction, and the losed arrangement to act for each as to aft'ord a ground of action i re is some contrariety of decision double retainer and double pay, I... to both <^-^i' ■ Farnsworth ^48 ; Pugslev -I Pa. St. 2,^ iv. 31 Md. 2: g. 129; Ric, that where ' overy can b* no escape her.*? fro; r>efore mentioned, ani' the case as he did m cf the specia' suit, were it a . - The judgment judge : cory Oi ^ed by I oe distasi reversed with ) actual >f policy :bmitted n view ary re- Seotfcii 3.— -A)>-^f kBi C-n?: and r^kiH. ,. Ui' i\iil./iJJViI.L.Jt V. NK OF NEW YOKK. that Th. Karl, of Craw' livered to tht a sight draft t the city of N-- by mail to the New York, for o on the ited by i' lion It received f" ^'.■•.■r^ Thirn T ration : t term :A liic ciiipreiue court, ing a judgment in favor uf .1 referee. (Reported beli ecover damages alleged to have been ! the defendant in the performance of ■. in collecting a draft sent to it for in the o| of March, i'6(t>, the National Bank 'vania, at Meadville, made and de- rial bank located at the same place, "y^n Culver, Penn & ''.'o., bankers in ; '.ff 'endorsed the draft and sent it 'responding- bank in the city of The draft was rert'ix'cd by the • and wr e morn- . ivment. i esenta- ees their check for t i:it upon - . -i-'Ce V- FIvt .. IVTc. 'hi n:axim that serve two in: ;-.'tvrK'. ;.• ■'.■.'jon from n. . . , ror certnin f- lies to the same traiisactiuii when thei- irryjiUv to ♦be onc is not a breach of • ^ 37 Ohio St. 445, 447. nay always, by mutuai ik;? a third their agent." , 40 Ga. 330, 336. s not prevent the two or more par- it, and wher« . 4'.vorth, J, in how diverse ti CARE AND SKILL. 7II count, and it delivered the draft to them. It did not present the check to the bank for payment on that day ; but it was sent through the clearing-house and presented for payment the next day, the 27th. Culver, Penn & Co., failed on .that day, and the bank refused to pay the check. The defendant then took the check, and on the same day returned it to Culver, Penn & Co., and received back the draft for which it had been given, and then formally demanded of them payment of the draft, and caused the same to be protested for non- payment; and on the next day, March 28, due notice of such non- payment was served by mail upon the plaintiff and also upon the drawer. Upon these facts it cannot be disputed in this state that sufficient was done to charge the drawer. It was so decided, upon precisely similar facts, in Turner v. Bank of Fox Lake, 4 Abb. Ct. App. Dec. 434, and Burkhalter v. Second National Bank, 42 N. Y. 538. If therefore the whole duty of the defendant to the plaintiff was dis- charged, as claimed by the learned counsel for the defendant, by preserving the liability of the drawer upon the draft, then the judg- ment appealed from is wrong. It is the duty of an agent who receives negotiable paper for col- lection, in case such paper is not paid, so to act as to secure and preserve the liability thereon of all the parties prior to his principal ; and if he fails in this duty, and thereby causes loss to his principal, he becomes liable for such loss. But this is not the utmost limit of the agent's duty and liability. He may so act as to charge all the parties to the paper, and yet become liable for a loss occasioned by his negligence. The rule which will measure the diligence which is exacted of a holder oi such paper, in order to charge the prior parties, will not always measure the diligence which is required of a collecting agent in the discharge of his duty to his principal, i Dan. on Neg. Inst., § 330. Suppose an agent receives for collection from the payee a sight draff. No circumstance can make it his duty, in order to charge the drawer, to present it for payment until the next day. He has en- tered into no contract with the drawer, is not employed or paid by him to render him any service, and owes him no duty to protect him from loss. What is required to be done to charge the drawer is simply a compliance with the condition attached to the draft, as if written therein ; and that condition is in all cases complied with by presentation, demand and notice, on the next day after receipt of the draft. But suppose the agent, on the day he receives the draft, ob- tains reliable information that the drawee must fail the next day, and that the draft will not be paid unless immediately presented ; what then is the duty he owes his principal, whose interests for a compensation he has agreed with proper diligence and skill to serve in and about the collection of the draft? Clearly, all would say, to present the draft at once ; and if he fails to do this, and loss ensues, 712 DUTIES OF AGENT TO PRINCIPAL. he incurs responsibility to his principal ; and yet the drawer would be charged if it was not presented until the next day. Where an agent receives a bill for collection, payable some days or months after date, in order to charge the drawer, he need not present it for acceptance until it falls due; and if he then presents it and demands payment, and protests it, and gives the notice, the drawer is held ; and yet in such a case he owes his principal the duty to present the bill for acceptance at once, and if he fails in such duty, and loss ensues to his principal, he becomes liable for such loss. It was so held in Allen V. Suydam, 17 Wend. 368. That case was taken to the Court of Errors, and again appears in 20 Wend. 321, and although the judg- ment was reversed upon the question of damages, the same rule was laid down as to the duty and liability of the agent. The chancellor said : "If the receiving a bill by an agent, to collect, implies an obligation on his part to take the necessary steps to charge the drawer and indorsers, by protest and notices, in case it is not ac- cepted and paid by the drawee, I do not see why due diligence on the part of the agent, in procuring the acceptance of the drawee without delay, when it may be necessary or beneficial to the inter- ests of the principal, should not also be implied, as it is the duty of a faithful agent to do for his principal whatever the principal himself would probably have done, if he was a discreet and prudent man. Even where the principal is habitually negligent in attending to his own interests, it forms no excuse for similar negligence on the part of his agent." In the same case, Senator Verplanck said : "It seems to be the general commercial law of the civilized world, that when a bill is payable at a day certain, the drawer and indorser are not dis- charged, if the bill is not presented until the day of payment. Yet it is still the duty of the agent for collection to present the bill for acceptance without delay, and to give immediate notice of refusal to accept." He said further : "The principle is familiar that an agent for pay is bound to use such means, care, skill and precaution as are adequate to the due execution of his trust. He must use the ordi- nary diligence of a skillful and prudent man in such affairs." The rule of diligence applicable to an agent for the collection of negotiable paper, which has been stated, was fully and explicitly recognized in the case of Smith v. Miller, reported in 43 N. Y. 172; s. c. 3 Am. 690, and again 52 N. Y. 545. In that case the de- fendants sent to- the plaintiffs, for the purpose of paying them for a bill of goods, a draft drawn by them upon Place & Co., of New York. On the same day the plaintiffs received the draft, they presented it to the drawees for payment, and received their check upon a New York bank for the amount, and delivered up the draft. The check would have been paid if presented on that day, but it was not pre- sented until the next day, and, in the meantime, Place & Co. having failed, the bank refused to pay the check. Suit was then commenced by the plaintiffs against the defendants for the price of the bill of negli!:];'0nvc day they rcC' in which tw : last does, which the ^•. of the plaint i I lercial i 'tv of i' Within \. sentp'' poni, Second the ihen^ of his leasonab'! =X)und to :^, check. at once, ir ■ tinn as s n. : acceptance at On his principal, he V. Suydam, 17 Errors, and ''"■' ment was r^ laid down a. said: "Tf : cepted FVC!1 ^ ch: it ii .li.l Ji' acceptance accept." 1 ■ for pay is L" adequate to the ice, the a the du ? in such ^l\• such loss, , i. 't case was takti. '•'• '-'d. 321, and ai... >f damages, the s iiiy of the agent. The en.' ; r:i lo- an ao^ent. to collect, imphev ai' steps to charge th* -. in case it is not ac- i cio not see why due diligence oi '■'•■ the acceptance of the drawer ary or beneficial to the intei c implied, as it is the duty of whatever the principal himself eet and ■nt in r\-r se part c . . , _ "It seem^ of the civilized world, that when ■■■ e drawer and indorser are not dis ' d until the day of payment. Yo ollection to present the bill fo- inmT^di.ate notice of refnsa' t ■ !iis trust, rie .A.ni. i»'K), a; t t,' the pla, ' raft dra .Von-: ij.'i'.iK iA)r iiic aiii''v;ii;. would have been paid if pr^ I CARE AND SKILL. 713 goods, and it was held that the plaintiffs could not recover, upon two grounds: i. Because they did not protest the draft and give notice of the non-payment thereof to the drawers. 2. Because of their negligence in not presenting the check for payment upon the day they received it, although they had but two hours on that day in which to present it. The first ground does not exist here ; but the last does. In 43 N. Y. 176, Judge Allen, after speaking of the duty which the payee of a check owes to the drawer, said : "But the duty of the plaintiffs to the defendants is not determined by that rule of commercial law. That rule has respect only to the contract and liability of the parties to the instrument. When a check is taken in- stead of money, by one acting for others, as was done by the plain- tiffs, a delay of presentment for a day, or for any time beyond that within which with proper and reasonable diligence it can be pre- sented, is at the peril of the party thus retaining the check and post- poning presentment, as between him and the persons in interest whom he represents." In 52 N. Y. 549, Judge Rapallo said: "The plaintiffs had received from the drawees of the draft the means of obtaining the amount thereof, and by their own laches these means became unavailable, and the amount was lost both to them and the defendant." In the case of Turner v. Bank of Fox Lake and Burkhalter v. Second National Bank, the actions were against the drawers of the bills ; and the sole question involved was whether they had been properly charged. The case of Smith v. Miller is not in conflict with them. That was an action against the collecting agent for breach of his duty ; and what w^as decided in that case, or said in the opinions written therein, was in entire harmony with the law as everywhere laid down. The rule as recognized is not unjust or un- reasonable or inconveniently uncertain. Here the defendant was bound to present this draft and demand the money thereon. It took a check. That placed in its hands the means of procuring the money at once. It should have presented the check for payment or certifica- tion as soon as with reasonable diligence it could, and the delay was at its peril. There is nothing in conflict with these views in Bank of Washington v. Triplett, i Pet. 25, and West Branch Bank v. Ful- mer, 3 Penn. St. 402, to which our attention has been called. The question here discussed was not involved in those cases. All the facts as to the draft and the check are set out in the com- plaint and are found in detail by the referee, and hence it cannot be said that the complaint and the findings are not sufficient to sustain the recovery, unless difficulty is found in points yet to be considered. It is said that the proof did not warrant the conclusion that the check would have been paid if presented on the 26th day of IMarch. It is true, that the account of Culver, Penn & Co. was largely over- drawn on that day. But the bank had been in the habit for a long time of allowing them tO' overdraw during any day, they depositing 714 DUTIES OF AGENT TO PRINCIPAL. collaterals or making the account good when it was made up the next day. This arrangement was entirely at the discretion of the bank, and had been acted upon for a month or more. Under it the bank paid all the checks of Culver, Penn & Co., drawn on the 26th, and down to their failure on the 27th ; and among the checks thus paid were some drawn after the one given to the defendant. It was therefore a justifiable conclusion that this check would have been paid if promptly presented. A cause of action was therefore estab- lished against the defendant ; and the only remaining question is the rule of damages. The recovery was for the whole amount of the draft, with interest. In I Dan. on Neg. Instr., § 329, the rule as to damages in such a case is laid down as follows : "The measure of damages which the holder is entitled to recover of the bank, or other collecting agent, who has been guilty of negligence or default in respect to it, is the actual loss which has been suffered. That loss is prima facie the amount of the bill or note placed in its or his hands ; but evidence is admissible to reduce it to a nominal sum." In Borup v. Nininger, 5 Minn. 523, the same rule is laid down, and it is said : "The defend- ants may mitigate the damages by showing either the solvency of the maker, the insolvency of the endorser, or that the paper was partially or wholly secured, or any other fact that will lessen the actual loss to the plaintiff ; the real loss occasioned by the improper conduct of the defendant being the fact for the jury to arrive at in measuring the plaintiff's damages." In Allen v. Suydam, supra, the judge at the trial charged the jury that as they had no knowledge of what the amount of the damage was, except from the proof of the amount of the draft, they should find a verdict for the plaintiffs for the amount of the draft, with interest. This charge was upheld by the supreme court, and the rule was there laid down that the amount of the bill or note, in such a case, is the prima facie measure of dam- ages. On account of this charge, the judgment was reversed in the Court of Errors, 20 Wend. 321. Two opinions were delivered, one by the chancellor for reversal, and another by Senator Verplanck for affirmance. These learned jurists did not differ materially as to the rule of damages, but they differed in its application to the facts of that case. The chancellor, writing the prevailing opinion, laid down the rule thus : "Where there is a reasonable probability that the bill would have been accepted and paid if the agent had done his duty, or where, by the negligence of the agent, the liability of a drawer or endorser, who was apparently able to pay the bill, has been discharged, so that the owner of the bill cannot legally recover against such drawer or endorser, I admit the agent, by whose neg- ligence the loss has occurred, is prinui facie liable for the whole amount thereof, with interest, as damages ; unless he is able to sat- isfy the court. and jury that the whole amount of the bill has not been actually lost to the owner, in consequence of such negligence ;" the !■;.->.,; he reached in wrong, and th more damage:: it ^-•-' -' - SV! \v !:. lo hi.s ■ to the : his prir:. , the rule v. Ryl. 37' dam, •■ bill ■ th hi h- er . 'nil C»;i biU. The - undertake that basis. erence to tt diUgence. of pavtp^' nc' up_ until it coiii for the m-) was preseii dr. U- . .that it its com do so. But this ._.. puted facts of • ages. The dt* charged, and sc edies of the plaui i.)i;''-ir;^ ./. 1 lus arr. id' had been bain< paid all the check.-^ v>i ( and down to their failure or paid were some drawn after tiierefore a justv*^--^^'^- ••'. ^ paid if prompt] . lished again ' the rule of the draft, with In I Dan. rn> a case is lai' hold.- ^ - acu.cii amonn) count good whe' : was ei"" ■ >n for a Julver, Penn :h- 27t]l ; < .1 the -t the cor: tne am' the supii:.,!., , <'>t the bill or noi bv for the rule of dan; ' • case, i ; '■e rule thus ; ' ■ 'tld have (-■c^ where, bv t use of ' +1 e orny ^vas for lit of Stir! sg, the rule as to damag'" The measure of damage? iie bank, or other collect! u^ c.,..; i or default in respect to it, is tii . ied. That loss is prima facie tb in its or his hands ; but evidence am." In Borup v. Nininger, M. and it is said: "The defenii ;ng either the solvency o> er, or that the paper wa- my other fact that will lessen th': al loss occasioned by the improper !ie fact for the jury to arrive at ii ." In Allen v. Suydam, supra, tht V that as they had no knowledge o , except from the proof of th. a verdict for the plaintiffs fc>' merest. This charge was upheld b '- *-here laid down that the amouir. 'le prima facie measure of dan: •lit was r- . • .' ■ =; were inoclicr iid not of the ageii amount thereof, with interest, as dar ■..", rhe court. and jury that the ^'^ rually lost to the owner, r CARE AND SKILL. 715 and he claimed that the facts in that case did not clearly show that the loss of the plaintiffs was the whole amount of the bill ; and hence he reached the conclusion that the charg-e of the trial judge was wrong, and that a new trial should be granted, "to the end that no more damages may be recovered than such as a jury may believe it probable, for the evidence adduced, that the plaintiffs may have sustained from the negligence." When the agent so deals with the draft as to secure and preserve to his principal all his rights and remedies against the prior parties to the bill, he is liable only for the actual or probable damages which his principal has sustained, in consequence of his negligence ; and so the rule was recognized to be in Van Wart v. Woolley, 5 Dowl. & Ryl. 374. In Bank of Scotland v. Hamilton, cited in Allen v. Suy- dam, where the agent by his negligence in not sooner presenting a bill for acceptance became prima facte liable for the whole amount thereof, he was allowed in mitigation of damages a dividend which his principal would be entitled to out of the drawer's estate in bankruptcy. In all these cases, the negligence of the agent being established, it is a question of damages, and the agent may show, notwithstanding his fault, that his principal has suffered no damages ; and the recov- ery can then be for nominal damages only. He may show, in reduc- tion of the damages, that if he had used the greatest diligence, the bill would not have been accepted or paid, or that his principal holds collaterals, or has an eflFectual remedy against the prior parties to the bill. The defendant did not receive the check from the plaintiff and undertake to collect it ; and this case must not be disposed of upon that basis. It received the draft for collection ; and it was in ref- erence to that that it came under obligation to the plaintiff to act with diligence. It presented the draft for payment, and for the purpose of paying the same, the drawees delivered to it an order upon a neighboring bank for the amount, and instead of getting the money upon the order at once, as it could have done, it negligently delayed until it could not. It had no more right to delay presenting the order for the money than it would have had to decline, when the draft was presented, to receive the money until the next day, in case the drawees had expressed a willingness to pay then. The gravamen of the plaintiff's complaint is that the defendant acted so negligently that it did not get payment of the draft when it had the means under its control, and the power, by the exercise of reasonable diligence, to do so. But this fault of the defendant, so far as disclosed by the undis- puted facts of this case, caused the plaintiff none but nominal dam- ages. The defendant, as shown above, caused the drawer to be charged, and secured and preserved against it all the rights and rem- edies of the plaintiff; and the presumption, in the absence of proof, yi6 DUTIES OF AGENT TO PRINCIPAL. is that the drawer was solvent, and responsible for the amount of the draft. Ingalls v. Lord, i Cow. 240 ; Allen v. Suydam, supra. But in this case we need not rest upon this presumption, as the complaint alleges that the draft could be collected from the drawer, if properly charged. The result is that the plaintiff has recovered against the defendant, as damages for its negligence, the full amount of the draft. But the draft is not by this judgment transferred to the de- fendant, and it is not subrigated to the plaintiff's rights and remedies thereon against the drawer ; and the plaintiff still holds the draft, and for aught that appears in this case, can enforce it, or has en- forced it, for the full amount against the drawer. To justify such judgment, the plaintiffs should have shown that the draft was wholly worthless, or that for some reason the responsibility of the drawer thereof was wholly unavailable to it. The plaintiff is enti- tled to indemnity, and no more, for the loss caused by the fault of the defendant, and it must show the extent of such loss. It was said by the learned counsel for the plaintiff, upon the argu- ment before us, that by the law of Pennsylvania the drawer was not charged upon the draft by what was done by the defendant. But that law was not proved ; and in the absence of proof, we must as- sume that the common-law rule prevails there which prevails here. It was also stated that the plaintiff had sued the drawer upon the draft and failed to recover, because it was not properly charged. But there is also no proof of that. Therefore, for the error as to the damages, the judgment must be reversed and a new trial granted, costs to abide event. All concur, except Folger and Miller, JJ., not voting, and Church, Ch. J., absent. Judgment reversed.^ HEINEMANN et al. v. HEARD et al. 1872. Court of Appeals of New York. 50 N. Y. 27. Appeal from judgment of the general term of the supreme court in the first judicial district, affirming a judgment in favor of defendants entered upon an order of the court at circuit directing a dismissal of the complaint. (Reported below, 58 Barb. 524.) This action was brought to recover damages for an alleged breach of duty, upon the part of defendants, as plaintiffs' agent. The plaintiffs are co-partners, carrying on business in the city of New York under the firm name of Heinemann & Payson. The defendants are commission merchants and co-partners, carry- ^ Accord: Merchants' Bank v. Stafford Bank, 44 Conn. 564 See Bank of Delaware Co. v. Broomhall, 38 Pa. St. 135. ing" Oil tiiat !;j,-- the firm name ■ rnngcmeiit was by wliich the lav for the purchas; tiffs. In order teas and silks. Peabody & <' plaintiffs. '; purchase b; the defend; i5,cx)0 in No. x for hunif' 1 > Konr;:, ■ Onion L'-, • n or b! of IS. 7 ling, fr . [ insurai Tai. 2^1 The I Febn.i^ry, iJV; second to be d 5 vSeptem : plaintif' fend an; defend? credit i; At this :., between t'l- letter date*! i iw- o, amount unu> benefit of tl- August 8, [ facts appear ILVPALLO, J - diligence, and \.'- (i'ir.k the jury on th fraud on the r action for ; An agent is :.. .. and to such ski I" capacity engagt 1 86. Whether usually a questic: i :. It) DVTIES OF AGENT TO IS t!' awer was solvent, <''■ ■ Is V. Lord, 1 <"""" e need not r ai the draft could i".- The result is that t ![, as damages for .-.} : '.ut the draft is r '^^• ';ant, and it is not - .Hereon against the '' and for aught that .'i forced it,, for the '•- judgment, the j.'i wholly worthles'- drawer thereof ■, lied to ii the deiv^ I' an.' this pre- ■ 'ilected fri' ic plaintiff ■ ; negliji' th.is ju. it of the • But ' ' /laint the rlie Ch. J., .r TndgTtiiexil rc\ ■ the plain nil ;'u- plaintiff , :>e, can enfo; .... the drawer, i ■ nave shown that th >; the respon> it. Thepla ; ■ •r the joss caused by the fault of lie extent of stich loss. el for the plaintiff, upon the argu- Pennsylvania the drawer was not .vas done by the defendant. But ;]ie absence of proof, we must as- icvails there which prevails here. iil had sued the drawer upon the ise it was not properly charged. ■'- ''amages, the judgment must be to abide event. -i ,,.,. ..,;.,., g„(} Church, TT TTTT \VT\ Appeal from juiL. -c general t -' '" the fir?^ ' ;. affirming lants err or of the cO' ;. ':;-!!!: sal of the cd: ^fiorted h< ' This action was bn: --er dan: of duty, upon the part oi ts, as p! The plaintiffs are co-j carrvin of New York under the firm name of i The defendants are commission '> - ' .Irrofd- Merchants' Bank v. Staft' ''. h.v.;:r.: C'' v. Broomhall, 38 Pa. St. . 1 breach the city . .arry- Bank of CARE AND SKILL. 717 ing- on that business at Hong Kong' and elsewhere in China, under the firm name of Augustine Heard & Co. In the year 1864 an ar- rangement was entered into between the plaintiffs and defendants, by which the latter were to become the correspondents of the former for the purchase of teas and silks in China for account of the plain- tiffs. In order to put the defendants in funds for the purchase of teas and silks, a credit in favor of the defendants, with Georg^e Peabody & Co., of London, for £15,000 sterling, was obtained by plaintiffs. The plaintiffs gave defendants their first instructions to purchase by a letter dated the 23d December, 1864, addressed to the defendants at Hong Kong. It directed the investment of £5,000 in No. I re-reeled silk (if possible, all white), at i8s. sterling for humchuck, or i6s. sterling for No. i Loong" Kong or Kow Kong, free on board ; and £10,000 sterling- in fair cargo Foochow Oolongs, at a price not exceeding gd. (say gd. sterling) per pound. These instructions were modified by a letter dated May 2, 1865, in these respects, namely : The limit of price for silk was increased five per cent. ; and for the Oolongs the defendants were authorized to substitute fine Moyune teas from Canton or Shanghai, the usual assortment of fully fair cargo, at a price of is. yd. per pound ster- ling-, free on board, without freig-ht and insurance ; for the Ting Tai, 2d. per pound higher. The first letter was received on the 22d February, 1865, and the second on the 7th of July, 1865. By its original terms the bills were to be drawn prior to the ist July, 1865 ; the time was extended to September i. The defendants were notified of the extension by the plaintiffs' letter of May 12, which notice was received by the de- fendants on the 6th July, 1865. No purchases were made by the defendants for the plaintiffs under these orders, nor any part of the credit used. At this time there was a certain joint account arrangement on foot between the plaintiffs and the defendants, and the plaintiff's, in a letter dated June 6, 1865, advised the defendants as follows : "Anv amount unused of our first credit of £15,000 you may apply for the benefit of the joint account arrangement." This letter was received August 8, 1865 ; no part of the credit, however, was applied. Other facts appear in the opinion. Rapallo, J. — * * * The question in the case was one of due diligence, and we think that there was sufficient evidence to go to the jury on that point. The position cannot be maintained that fraud on the part of the agent is necessary to subject him to an action for neglecting to perform a duty which he has undertaken. An agent is bound not only to good faith but to reasonable diligence, and to such skill as is ordinarily possessed by persons of common capacity engaged in the same business. Story on Agency. §§ 183, 186. Whether or not he has exercised such skill and diligence is usually a question of fact ; but its omission is equally a breach of 7l8 DUTIES OF AGENT TO PRINCIPAL. his obligation and injurious to his principal, whether it be the re- sult of inattention or incapacity, or of an intent to defraud. In the case of Entwisle v. Dent ( i Exch. 822) there was an element of fraud as well as breach of duty ; but the judgment of the court was not founded upon the fraud, nor could it be, as the action was for breach of the implied contract of the defendant to act according to instructions. As an independent ground for sustaining the nonsuit, it is claimed, on the part of the defendants, that the order to purchase silk was dis- cretionary, and that for that reason they are not responsible in dam- ages for their failure to execute it. By reference to the letter of December 23, 1864, it will be seen that no discretion was given whether or not to purchase. The order to invest £5,000 in silk of one or other of the particular descriptions mentioned, and at the prices named, vv^as absolute. The only matter left to the discretion of the defendants was the selection of the silks as well as the teas. They were instructed to purchase either Cumchuck at i8s., or No. i Loo Kong, or Kow Kong, at i6s., and were requested to obtain all white if possible ; otherwise, to separate the white from the yellow. No other matters were left to their dis- cretion. It was their duty to select some of these descriptions, if they were to be obtained, and to use reasonable diligence in obtain- ing the required quantity in time to ship under the letter of credit. It is argued that as they had discretion in the selection of the silks, and had to determine whether it was possible to obtain all white, no period can be fixed as the time when they were bound to decide these matters and make the purchase. This argument is not satisfactory. The necessity of making a selection may have justified them in not accepting the first ofifer which they may have met with, and in look- ing further for the purpose of complying with the wishes of their correspondents; but it would not justify them in allowing all oppor- tunities to pass, and the time to elapse within which they could pur- chase under the letter of credit. They were bound to make a selec- tion within a reasonable time, and, at all events, before the time for shipping, under the credit, expired. The prices appear to have continued below their limit from the early part of June until the first term of the letter of credit had run out ; yet they allowed all that time to elapse without making any selection. Such delay was cer- tainly evidence of want of due skill and diligence, if attributable merely to a failure to come to a decision. But the defendants do not, in their correspondence, take any such ground, or claim that they regarded themselves as having any dis- cretion as to purchasing the silks and tea. On the contrary, in their letter of February 27, 1866, they say: "We were bound to follow your instructions for the investment of £15,000 credit first sent, and have already explained to you our reasons for not having purchased silk;" referring to their letter of December 14, 1865. They rest tlieir jusufication wTi >'!• rrv below the plauitif: them at still li ' - in persisting i the letter -i' c-. Judg-irjcnt r. 1834. Supre: ASSUMV. implied pr. to him. Wi and he is F- . the dt made a indebitotv: names, d?' the officer ad day, declan. writ, and court of ; plaintiffs, ' sell appeal entered the The CO in alif 'iuer sui- ■ ■ r. ed any ]■: The defend: :its, the wcr iswer, that fc m question " the blank . court her<* d- roperty of Bissell. He ,:..: the common counts in h blank spaces for sums, :ounts. "' ■ ■] value <■ '•-S OF AC/cl^ liis ' and injurious to his principal, v ■ ■ :ition or incapacity, or of an inft i ntwisle v. Dent (i Exch. 822) ■ ■.V y[ a- well as breach of duty ; but the ju...giiit.ii not founded upon the fraji>i. nor could it be, as th( the ini} '' tlie re- in the iient of — t was for As an inde; on the part 01 cretioriary, and ti' ages for their *' •^: By referen that no discr> to invest f5,c mentionc'' matter lef the silks ' Uicy wee- ing' the I It is argi and h;;.' ■ peril matte 1.- '...'. The necessit} -ring th(_ tiase under the i ;r>r, -.x-:iTiin a reasu.... under th» wuliov. e of vv: failure to incKti* l,L.' a But the defendants ground, or claim that the cretion is to purchasing ti letter of February 27, iS' ■ ■ ; ons for the in^ they are not ret; jceraber 23, 1864. er or not to purchase, i ■ her of the particular dess aned, was absolute. Tlic oiily defendants was the selection of were instructed to purchase either \ ,iip-, or Kow Kong, at i6s., and ssible; otherwise, to separate -; iriatters were left to their dis- t some of these descriptions, if use reasonable diligence in obtain- to ship under the letter of credit. •^tion in the selection of the silks, IS possible to obtain all white, no . t\ they were bound to decide these ' ni> argument is not satisfactory. ly have justified thtin in not V have met with, and in look- ing with the wishes of their them in allowing all oppor- vithin which thev cot:M pur- were bound to tr All events, before . d. The prices app ihe early part o^ '■ run out: vet the 1. :orresr; d themf ',d tea. ' .ay: "\^ ent of ""' " explained to you our reaj g to their letter of Deccii.Lci H. ec- ; . . w , ... lor ear to have '-•itil the -dl that ■er- , 1 ■> )iy such '^S any dis- irv , in their ■A' .0 follow cut, and rchased ^cy rest CARE AND SKILL. 719 their justification wholly upon the ground that while the silks were below the plaintiff's limits they held off in the attempt to obtain them at still lower prices. They were scarcely justified, however, in persisting in this attempt until it became too late to ship under the letter of credit as originally drawn or as extended.^ * * =r: Judgment reversed. - VARNUM ET AL. V. MARTIN. 1834. Supreme Judicl\l Court of Massachusetts. 15 Pick 440. Assumpsit against the defendant as an attorney at law, on an implied promise by him to do the business of the plaintiff's intrusted to him, with proper care, skill and fidelity, for a reasonable reward ; and he is charged with negligence, carelessness and want of skill, whereby the plaintiffs lost a debt due to them. The plaintiffs proved, that on August 27, 1832, a debt of $1,000 was due to them from E. M. Bissell, and that on that day they em- ployed the defendant to collect it, and gave him directions to secure the demand by an attachment of personal property of Bissell. He made a writ, using a blank form in which the common counts in indebitatus assumpsit were printed with blank spaces for sums, names, dates, etc. There were no other counts. The writ directed the officer to attach property to the value of $1,200, and the ad damnum was laid at the same sum, but the defendant inserted a declaration for $12 only instead of $1,200. The officer served the writ, and property to the value of $1,200 was attached. In the court of common pleas, judgment was rendered pro forma for the plaintiffs, for the amount of their debt; from which judgment Bis- sell appealed, but neglected to enter his appeal, and the plaintiffs entered the action in this court for an affirmation of the judgment. The court refused to affirm it, because the declaration was erroneous in alleging the debt to be only $12. Bissell became insolvent in November subsequent to the attachment, and the plaintiffs never received any part of their demand. The defendant proved, that formerly, in the blank forms of writs, the word hundred was printed. The plaintiffs proved in answer, that for a year or more previous to the making of the writ in question, the blank forms had omitted the word hundred, and that the blank forms used by the defendant for the June term previous ^ The court here discussed the question of damages. ■ The same test of care and skill was applied to one who invested money for another. De Hart v. De Hart, 70 N. J. Eq. 774. In Kennedy v. McCain, 146 Pa. St. 63, it was decided that an agent investing money for his principal does not guarantee the sufficiency of the security. See Page v. Wells, 27 Mich. 415, 420. 720 DUTIES OF AGENT TO PRINCIPAL. were of the new kind ; and that at the time when he made the writ in question, he made another writ against Bissell in favor of two of the plaintiffs, in which he wrote the word hundred, the bank forms used in both cases being of the same kind. It was conceded that the defendant was a man of competent skill in his profession, and the case was put upon the ground of negli- gence. The jury were instructed, that the defendant was required to pos- sess competent skill, and if there was a want of ordinary skill he would be liable ; that an attorney is not liable for every mistake, but if there is a want of reasonable care and diligence, he is liable ; and that if he exercises reasonable care and diligence, he is not liable. The jury found a verdict for the plaintiffs. If the court should be of opinion that this evidence was not sufficient to support the verdict, a new trial was to be granted. Per Curiam. — 'Whether the c[uestion of negligence should be determined by the jury, or by the court upon the facts being found or agreed, it is not necessary to consider ; as we are of opinion, that the facts show a want of ordinary care and diligence on the part of the defendant, and that there is no good reason for disturbing the verdict. In a case like this, where care was required, it was the duty of the attorney to read over the writ, to see that it was correct. And the defendant cannot allege in excuse, the change which had taken place in the blank forms, for the later forms had been in use for a year or longer, and on the same day that the writ in question was made, he used one of these forms and inserted the word hundred. Judgment on the verdict. THOMAS V. DABBLEMONT. 1903. Appellate Court of Indiana. 31 Ind. App. 146. This was an action against the appellant, a physician, for mal- practice. The trial court gave certain instructions to the jury, to which appellant took exception.^ CoMSTOCK, J. (After deciding other questions.) — Objections were made and exceptions taken to the giving to the jury of certain instructions ; with others, the seventh. It is as follows : 'Tf a per- son holds himself out to the public as a physician, he must be held to possess and exercise ordinary skill and knowledge and care in his profession in every case of which he assumes the charge, whether in the particular case he receives a fee or not. Where an injury results from the want of ordinary skill or attention in the treatment of a ^ The statement of the facts is abbreviated. fers his services ti. contracts with tho:-e ->. ;; ^ ^ and experience ^^^'•''^ •': ' or profess to required by tl ■ . ment as necessarv lo quali; ■*^ession successfnliy." •A physician '■ - Dound to gree of skill ■ profession pr Ind. App. 12 Ind. Ai L. R. A. ■ 95 Ind. ;;; . plained of cnyr tor ' • for a liCvV triai. :iv neii V. Hosier, to i: )ns to sustain ap CI FUND & SAi'Tvn^ as^. FRIEDLE > l88<>. SrT-TJF.ME COURI Mitch ' Fund and sureties o : the loan a the defendai; tion. It is avi. ! lars to one advice given 1 * A portion of » "A t.Im -■■■.■■ that h. reason r clans and ^. regarded by to engage in iht under the furtho plying hi? ^Socia- iS, (ilv ri^;ir.>- rt-; i.aMpbier the new kind ; and that at ttie time w . ,,...;!, he made another writ against Bis:;.;: the plaintiffs, in which he wrote the word hnndi • ' n both cases bein^j of the same kir ' ,'.s conceded that the defendant \v; profession, and the case was put ■ wnt m - :\vo of tik forms ;t skill 'ihe jury wet s;ess competenl ." ould be liable ; that but if there is a want and that if he exe; liable. The jl1r^ of "Opi'-;' a new or a^rc ■ the defenUci '" was a wui . - not liable .... care and dili^. . lable care and diligt. is not ro\ he plaintiffs. If the court sh^'Uld lie not sufficient to support the verdict, question of negligence should be at court upon the facts being found consider ; as we are of opinion, that ry care and diligence on the part of no good reason for disturbing tltc >ere care was required, it was the the writ, to see that it was correct. ^ in excuse, the change which had :or the later forms had been in u same day that the writ in qi: r-inc nn/I ■;n';firl cil tin- \\Niril /; ; • BLEMONT. .03. Ait This was an ac- practice. The trial Mdiich appellant t,->, . Com STOCK, J were made and ev instructions; with c son holds himself oui t possess and exercise Oi profession in every case oi which he the particular case he r'-cr'ves a fee ■; om the want of he appelbnt, a phy.^ actions to tiu •;nth. : He as a p kill and nestion.'- statement of the tacts ir^ CARE AND SKILL. 721 case, the physician is responsible for such injury. A person who of- fers his services to the pubhc in any profession or business impHedly contracts with those who employ him that he is a person of the skill and experience which is possessed ordinarily by those who practice or profess to understand the same art or business which is generally required by those most conversant with that profession or employ- ment as necessary to qualify him to engage in such business or pro- fession successfully." A physician is bound to possess and exercise only the average de- gree of skill possessed and exercised by members of the medical profession practising in similar localities. Baker v. Hancock, 29 Ind. App. 456; Gramm v. Boener, 56 Ind. 597; Smith v. Stump, 12 Ind. App. 359; Whitesell v. Hill, loi Iowa 629, 70 N. W. 750, 37 L. R. A. 830 ; Becknell v. Hosier, 10 Ind. App. 5 ; Jones v. Angell, 95 Ind. 376. Under the foregoing decision the instruction com- plained of cannot be upheld. It fixes the standard of skill required too high.- * * * Judgment reversed with instructions to sustain appellant's motion for a new trial. ^ CITIZENS' LOAN FUND & SAVINGS ASSOCIATION v. FRIEDLEY et al. 1889. Supreme Court of Indl\xa. 123 Ind. 143. Mitchell, C. J. — This- suit was instituted by the Citizens' Loan Fund and Savings Association against Harmon H. Friedley and the sureties on this bond to recover money alleged to have been lost to the loan association on account of the negligence and want of skill of the defendant Friedley while acting as the attorney of the associa- tion. It is averred that the association made a loan of four hundred dol- lars to one of its share-holders in August, 1883, upon the faith of advice given by the appellee, its attorney, who certified to its officers, ^ A portion of the opinion is omitted. ^"A physician and surgeon, by taking charge of a case, impliedly represents that he possesses, and the law places upon him the duty of possessing, that reasonable degree of learning and skill that is ordinarily possessed by physi- cians and surgeons in the locality where he practises and which is ordinarily regarded by those conversant with the employment as necessary to qualify him to engage in the business of practising medicine and surgery. * * * He is under the further obligation to use his best judgment in exercising his skill and applying his knowledge." Vann, J., in Pike v. Housinger, 155 N. Y. 201, 2og. See Lanphier v. Phipos, 8 C. & P. 475. Regarding the duty of an architect see Chapel v. Clark, 117 Mich. 638. 46 — Reinhard Cases. 722 DUTIES OF AGENT TO PRINCIPAL. in writing-, that the title to certain real estate upon which the appli- cant for the loan proposed to execute a mortgage as security therefor was perfect, and available to secure the loan applied for. It appears that the real estate was owned by the applicant and his wife as tenants by the entireties ; that the loan was made in reliance upon the advice of the attorney ; that the borrower subsequently died, his estate being insolvent ; and that his widow successfully resisted a suit for the foreclosure of the mortgage, subsequently brought by the association, her defense having been predicated upon the ground that she signed the note and mortgage merely as the surety for her husband. It is insisted that the complaint shows that the association sustained loss in consequence of the ignorance, carelessness, or unskilfulness of its attorney, and that the latter, with his sureties, must therefore respond to it in damages for the amount lost. No neglect or want of skill appears, except that the attorney was mistaken as to the law applicable to the state of the title of the borrower, and its avail- aljility as a security for the loan. Attorneys are very properly held to the same rule of liability for want of professional skill and diligence in practice, and for errone- ous or negligent advice to those who employ them, as are physicians, surgeons, and other persons who hold themselves out to the world as possessing skill and qualification in their respective trades or pro- fessions : Waugh V. Shunk, 20 Pa. St. 130. The practice of law is not merely an art ; it is a science which demands from all who engage in it, without detriment to the public, special qualifications, which can only be attained by careful prelim- inary study and training-, and by constant and unremitting investiga- tion and research. But as the law is not an exact science ; there is no attainable deg-ree of skill or excellence at which all differences of opinion or doubts in respect to questions of law are removed from the minds of lawyers and judges. Absolute certainty is not always possible. "That part of the profession," said Lord Mansfield in Pitt V. Yalden, 4 Burr. 2060, "which is carried on by attorneys, is liberal and reputable, as well as useful to the public, when they con- duct themselves with honor and integrity ; and they ought to be protected where they act to the best of iheir knowledge and skill. But every man is liable to error ; and I should be very sorry that it should be taken for granted that an attorney is answerable for every error or mistake, and to be punished for it by being charged with the debt which he was employed to recover for his client" : Watson v. Muirhead, 57 Pa. St. 161, 98 Am. Dec. 213; United States Mort- gage Co. V. Henderson, 1 1 1 Ind. 24, 34. An attorney who undertakes the management of business com- mitted to his charge thereby impliedly represents that he possesses the skill and that he will exhibit the diligence ordinarily possessed and employed by well-informed members of his profession in the and appij those rules and clearly defi'T^' •'■ dared in adjud a sufficient len cise reasonable ■ ssion: h ,;.::., cin V. Yel' 30 Ala. 482. Fenaille v. C, Thus it norance or the want on the points G b. decisi' gence of the a mistake in rt sion possesseo the law until i; in a po'"' ' weli-ii. Burt, 4 i.- The iud;. -id >iished "'"! de- .ed ■ . y Oil G iis own 1" £ needs only to use < asion requires, ignorant of the ordinary of the statutes and pui not to be charged with 'iition iv' ior can ' ^ which Section 4. — Agent's ^^^ * 1874. General assum, nirt, September It ' A portio" ' I' (woman to C' • For full . ' \'ard, IOC) U. h 193. al bv the ill •.vntmg-. that the title to ccrtaUi i^ c^uit for the loan proposed to execute \\ a^ perfect, and available to secure the 1< It ajjpcars that the real estate was owi wife as tenants by the entireties; that tht upon the advice of t'^ ■• his estate beine in-- a suit for V< the associai that she sigiie<.i u\< lUAt husband. It is insisted that the c loss in con-^'"'"''' ■ '• '■"' of its attor: respond ' ■ - of skill ajv ■ ous or StTr:^-" ^ that the iiat his igagc iiicreiy a.- inar}' - tion aiu; i. -r^v-.ii. no attainable d'. of opinion or douiM the minds of lawyer possible. "That part Pitt v.-Yalden, 4 Burr . liberal and reputable, af duct themselves wi^l ! protected where th But every man' is li;fi n u should be taken for granted r mistake, and to be puii:>..iCd for ' liich he was emj^b'^ve'l to recover iMuirhead, 57 Pa. St. ( ' m. Dec gage Co. V. Henderson, . 24, 34. An attorney who undertakes the ma mitted to his charge thereby implie<1'^ the skill and that he will exhibit t1 ' ' ' hy well-informed shows that the assoo. nice, carelessness, or r, with his sureties, i e ' amoiuit lost. No negicc: ur want .attorney was mistaken as to the law- tie of the borrower, and its avail- o the same rule of liability for ce in practice, and for errone- employ them, as are physicians, .,«'f.i themselves out to the world as in their respective trades or pro- a. St. 130. .rely an art; it is a science which .\ ithoiit detriment to the public, be attained by careful firf I'n.- constant and unremitting inv iw is not an exact science; th^i^. k-> excellence at which all differences questions of law are rem Absolute certainty i*; .^ion," said Loro !i is carried on 1 iseful to the public, ■ ■ integrity ; ;'i"-' *'"- ' of the:. II shon ittornev in i~ .; \atli ■.'.■ \Vatson ^ les Mori TO ACCOUNT. 723 conduct of business such as he has undertaken. He will be liable if his client's interests suffer on account of his failure to understand and apply those rules and principles of law that are well established and clearly defined in the elementary books, or which have been de- clared in adjudged cases that have been duly reported and published a sufficient length of time to have become known to those who exer- cise reasonable diligence in keeping pace with the literature of the profession: Hillegass v. Bender, 78 Ind. 225, and cases cited; Pen- nington V. Yell, II Ark. 212, 52 Am. Dec. 262 ; Goodman v. Walker, 30 Ala. 482, 68 Am. Dec. 134; Weeks Attorneys, §§ 284-289; Fenaille v. Coudert, 44 N. J. L. 286 ; Gambert v. Hart, 44 Gal. 542. Thus it has been said : "He is liable for the consequences of ig- norance or non-observance of the rules of practice of his court, for the want of care in the preparation of the cause for trial ; whilst on the other hand, he is not answerable for error in judgment upon points of new occurrence, or of nice or doubtful construction :" Godefroy v. Dalton, 6 Bing. 460; Chitty on Contracts 817; Dear- born V. Dearborn, 15 Mass. 316. It is his own fault, however, if he undertakes without knowing what he needs only to use diligence to find out, or applies less than the occasion requires. A lawyer is without excuse who is ignorant of the ordinary settled rules of pleading and practise, and of the statutes and published decisions in his own state ; but he is not to be charged with negli- gence where he accepts as a correct exposition of the law a decision of the supreme court of his own state ; nor can he be held liable for a mistake in reference to a matter in which members of the profes- sion possessed of reasonable skill and knowledge may differ as to the law until it has been settled in the courts ; nor if he is mistaken in a point of law on which reasonable doubt may be entertained by well-informed lawyers: Marsh v. Whitmore, 21 Wall. 178; Kemp v. Burt, 4 Barn. & Adol. 424. ^ * * * The judgment is affirmed, with costs.^ Section 4. — Agent's Duty to Account. BALDWIN BROTHERS v. POTTER. 1874. Supreme Court of Vermont. 46 Vt. 402. General assumpsit. Plea, the general issue, and trial bv the court, September term, 1873, Royce, J., presiding. ^A portion of the opinion dealing with the statutory right of a married (woman to contract is omitted. ' For full discussion of the duties of an attorney at law see Savings Bank v. Ward, 100 U. S. 195. 724 DUTIES OF AGENT TO PRINCIPAL. The case was tried upon the following agreed statement of facts : "The plaintiffs were merchants and partners, residing and doing business at St. Albans, Vt. They employed the defendant to solicit orders for and sell an article known and called 'prize candy' on com- mission. It was the practice of the parties, under said employment, for the defendant to solicit and take orders for said goods, and send such orders to the plaintiffs, who would thereupon send the candy to the parties ordering it, and charge it directly to the purchaser, on the plaintiff's books, and for the defendant, when convenient, to make collections in respect thereof for the plaintiffs, receipt therefor, notify the plaintiffs thereof, and pay the amounts collected over to the plaintiffs on demand. "The defendant entered upon said business ; and in November, 1870, and January, 1871, he sent orders for said candy for various parties in the state of New York to the amount of $103, and after- ward, in August and September, 1871, collected the pay for the same as the plaintiffs' agent. In November and December, 1870, and February and March, 1871, the defendant sold and sent orders to the plaintiffs from various parties in the state of Massachusetts for said candy to the amount of $210.52, and afterward, in August and October, 1871, collected pay for the same as the plaintiffs' ageni. During the years 1870 and 187 1 the defendant sold and sent orders for said candy from various parties in Vermont to the amount of $215.57, and afterward, in August, September, and October, 1871, collected the pay for the same as the plaintiff's agent. "On the delivery of said goods by the plaintiffs they charged the same to the purchasers on their books ; and on receiving notice from the defendant of said collections they credited to such purchasers the amounts thereof. The plaintiffs delivered to the defendant four silver dollars and four silver half-dollars as samples of the prizes contained in certain of said prize candy packages, which, with the premium thereon, were of the value of $6.72, and which the defend- ant has never returned nor accounted for to the plaintiffs. It is agreed that the commission to which the defendant is entitled is equal to and shall be set off against items in the plaintiff's favor; specification not included in the amounts aforesaid. "Said prize candies were of three kinds, and were known and called the 'Challenge,' 'Gem,' and 'United States Silver Coin,' and were put up in packages designed to be sold at retail for a certain price per package. Each package, in addition to a quantity of candy, contained a prize of some value ; and the inducement to purchase one or more of the packages at retail was the chance of receiving with the candy a prize, some of which were of greater value, and some of less value, than the price paid. The plaintiffs, at St. Albans, put up said candy in packages, with a prize in each package, and put up the packages in boxes containing a certain number thereof. The plain- tiffs sold said candy by the box only, and each box of the several contain t I Circulars ; ut as their v particularly the ' ix)x as a prize - - iforme'd anc alue, and ki ought ; and t >e same i. ;.e prizes 'lasers ti.' "In res; the dfcfen' of OctofK to them es, ana and on de- n^ ermont, ihall be ren . the date of c., the coin. If r any of sai'l it Tt to rec An agi atutes < i^ablic pr- judgmeni ' is of opinion th, :i3 as Stated, -.w York, Ma> for said silver . ' -uch sum" - the da. me of of die same ; action ari defendant, an' ^he defendant PlERPONT, • der the que- roperty refer! ■ased it, wen. • not. Thib uither is it fomi .-ntracts were ilk ; "icm ; it will not 1 the property soiu 724 DUTIES OF AGENT TO F l"he case was tried upon the following agree-. I "The plaintiffs were merchants and partners, business at St. Albans, Vt. They emploved the r the defendant, v vl.creof for the plaintii i pay the amounts of facts : nd doing to solicit It, nd iy ni •o I. o vcr to nintiffs" nd Mar from \ 1 said business ; and in ' rr^ 1" orders for said candy ■ is ;- to the amount of $103, and after- r, T871, collected the pay for the 'XI November and December, 1870, the defendant sold and sent orders . rties in the state of Massachusetts !l ut $210.52, and afterward, in August r>qy for the same as the plaintiffs' agem. ^ the defendant sold and sent orders ^ .rties in Vermont to the amount of ard, in August, September, and October, 187 1, • '"' --^rne as the plaintiff's agent, g^oods by the plaintiffs they charged the Teir books; and on receiving notice from ' lions they credited to such purchasers delivered to the defendant four oUars as samples of the prizes e candy packages, which, with the lue of $6.72, and which the defend- ounted for to the plaintiffs. It is which the defendant is entitled i- iinst items in the plaintiff's favo; vjnts aforesaid. e kinds, and were known and id United Stales Silver Coin,' and cd to be sold at retail for a certain :-, in addition to a quantity of candy, , and the inducement to purchase one or more of the packages at retail was the chance of receiving with th.. candy a prize, some of which were of gre nf less value, than the price paid. The plaintiff' ;^ said candy in packages, with a prize in ea« 1, and packages in boxes containing a certain r iicreof. ^ '" '■^'s sold said candy by the box id each box of the severa: 1870, and parties in ward, in same and F' to tht k. ay D f.M satne to ti:e pu: the defendant . the amounts theieoi. silver dollars and fouj contained in certain of premium thereon, v"^' - ant has never reti ; agreed that the con;': equal to and shall be - specification not iv.:' '"Said prize canu called the 'Challenge,' were put up in packagi price per package. Eai; contained a prize of soiut^ TO ACCOUNT. 725 kinds contained the same amount of candy and the same prizes, and the prizes contained in each box were printed on the outside and on printed circulars ; and cards were used by the plaintiffs, and the de- fendant as their agent, in connection with the sale thereof, stating particularly the kind and value of each article contained in the box as a prize ; and each purchaser thereof from the plaintiffs was informed and knew the amount of candy and the exact number, value, and kind of articles as prizes contained in each box that he bought ; and the plaintiffs knew that such purchasers intended to sell the same at retail, in the vicinity of the place of purchase, and that the prizes would be drawn as hereinbefore stated by the retail pur- chasers thereof. "In respect to said business, and in the collection of said money, the defendant acted solely as the agent of the plaintiffs. On the i8th of October, 1871, the plaintiffs demanded of the defendant to account to them for the money collected by him as aforesaid, and said silver coins, and to pay over the amount thereof to them, but the defendant absolutely refused, and ever since hath refused so to do, and has never paid the same nor any part thereof. "If upon the foregoing facts the court is of opinion that the plain- tiffs are entitled to recover for the sums as stated, which were col- lected upon sales in the states of New York, Massachusetts, and Vermont, or either of said states, or for said silver coins, judgment shall be rendered for the plaintiff's for such sums, and interest from the date of collection of the money and the date of the delivery of the coin. If the plaintiffs are not entitled to recover in respect of any of said items, then judgment shall be rendered for the defend- ant to recover his costs." An agreement was also made as to some of the provisions of the statutes of New York and Massachusetts relating to offenses against public policy in force at the time of said sales. The court rendered judgment for the plaintiff, pro forma, to recover the full amount claimed, w'ith interest thereon as stipulated, and found that the de- fendant received said money in a fiduciary capacity and converted the same to his own use, and adjudged, pro forma, that the cause of action arose from the willful and malicious act and neglect of the defendant, and that he ought to be confined m close jail ; to all which the defendant excepted. PiERPONT^ Ch. J. — We do not find it necessary in this case to con- sider the question as to whether the contract for the sale of the property referred to, by the plaintiffs, to the several persons who pur- chased it, were contracts made in violation of law, and therefore void or not. This action is not between the parties to those contracts ; neither is it founded upon or brought to enforce them. If those contracts were illegal the law will not aid either party in respect to them ; it will not allow the seller to sue for and recover the price of the property sold if it has not been paid ; if it has been paid, the 726 DUTIES OF AGENT TO PRINCIPAL. purchaser cannot sue for and recover it back. The facts in this case show that the purchasers paid the money to the plaintiffs, not to the plaintiffs personally, but to the defendant as the agent of the plain- tiffs authorized to receive it. When the money was so paid it became the plaintiff's money, and when it was received by the defendant as such agent the law, in consideration thereof, implies a promise on the part of the defendant to pay it over to his principals, the plain- tiffs ; it is this obligation that the present action is brought to enforce ; no illegality attaches to this contract. But the defendant insists that, inasmuch as the plaintiff could not have enforced the contracts of sale, as between himself and the purchaser, therefore, as the pur- chaser has performed the contracts by paying the money to the plaintiffs through me, as their agent, I can now set up the illegality of the contract of sale to defeat an action brought to enforce a con- tract on my part to pay the money that I as agent receive, over to my principal. In other words, because my principal did not receive the money on a legal contract, I am at liberty to steal the money, appropriate it to my own use, and set my principal at defiance. We think the law is well settled otherwise, and the fact that the defendant acted as the agent of the plaintiff in obtaining orders for the goods does not vary the case : Tenant v. Elliot, i B. & P. 2 ; Armstrong v. Toller, II Wheat. 257 ; Evans v. City of Trenton, 4 Zab. (N. J.) 764. We think the certificate granted by the county court was properly granted. It has been urged in behalf of the defendant that the zeal with which he has defended this case shows that he intended no wrong; but we think the man who receives money in a fiduciary capacity, and refuses to pay it over, does not improve his condition by the tenacity with which he holds on to it. Judgment of the county court affirmed.^ HAAS V. DAMON. 1859. Supreme Court of Iowa. 9 Iowa 589. Stockton, J. — The plaintiff claims of defendant five hundred dollars for the price and value of three certificates of stock, or shares ^ Regarding the duty of the agent to keep book accounts see Chicago Title and Trust Co. v. Ward, 113 111. App. 327. An agent is liable to account only to his principal. Attorney-General v. Chesterfield, 18 Beav. 596. "In mercantile agencies, and perhaps others, where the nature of the busi- ness requires the agent to keep various accounts of purchases and sales, or of receipts and expenditures, with his principal, he may be called upon by his principal, in chancery, for an account. But the present is a dififerent case. The alleged agency was for a single transaction, in which no such accounts as we have mentioned could arise; and the remedy for a breach is exclusively at law." Blackford, J., in Coquilard v. Suydam, 8 Blackf. (Ind.) 24, 30. in tlie town oi Uiiicini.ati to defendant to sell and <-'. upon the agreement of dei advantage, and account t. fjlaintilT avers that defen ' cates. and refuses to accou- though requested so to do The defendruit ■,\ns'\ . averring that ;ii 'lie ; lirected him ame; and ti •ne gold ^• aid), two vhich he ■- •..-.luir-^l- efused h till is r. lis ]>avii' .all, ible .\nd rtifi- !aintiff gave in evidence Received of A. Haas, thret Iowa, t' ' sell for him on c laintiflf for l: certificates, or brought. We tl,: ^iven, ii! 1 uty of the > hares for the , ,. o exchange \.ht:v^ io; ^.ad shown tlv •rty, instead iefendant, thai ; • ringing suit. S' ;8o. It was the dut\ . !ue season, and in i' ':ase of neglect, or without any dein Forry v. Bryant any tender : ...I. court in^it ring receipt ; :. Bluffs, T\ Cincinnal.!. ' -old the shares a feu er, for haltVsharf i " of shares in El' ---n of def. '•:-': ! to def' ■ been showi 'ore, ■ op- u bv fore > iwa :i. iJ :>-j- 726 'l!i..S or AGKNT TO I".- purchaser cannot sue for and recover it b ■ show that the purchasers paid the money plaintiffs personally, but tQ the defendan' tiffs authorized to receive it. When the ni the plaintiff's money, 'and when it was ^ as such agent the law, in consideration thero • the part of the defondar'l ^/^ nay it over to hi this case lot to the liC plain 'i hecanif lefenda? tiffs ; it is this of no illegality atta; inasmuch as the pi sale, as between hii...,.: chaser has performed t plaintiffs through me, a- of the contract of sale f tract oif my prii' the mo appropr think tb ' resentactlOI- .ict. But the ■ot have enforce ; purchaser, there. ;- acts by paying the ent, I can now^ set ui ,n action brought to -: ■:.y that I as agent receive, (,/vt;i : .cause my principal did not receive ; t. I am at liberty to steal the mone^ . and set my principal at defiance. W < herwise, and the fact that the defendan ^ ' '"""^ ' ntiff in obtaining orders for the good' mt V. Elliot, I B. & P. 2 ; Armstrong v, • V. City of Trenton, 4 Zab, (N. J.) 764 inted by the county court was properl; giMiitcd. 1 ;n behalf of the defendant that the zeal with which \ this case shows that he intended no wrong ; but we thuik tht: man who receives money in a fiduciary capacity, and refuse^ to pay it over, does not imt^'->vp h^. .-.mWt-r;-. by the tenacity with which Ive holds on to it. Judgment of the count- ^ affirmed.^ AS V.DAMON. 1859. Sui'Kx„«to Court of Iowa. 9 Iowa 58*) Stockton, J. — The piaintiff claims of defendant five hundred dollars for the price and vai:ie of three certificates of stock, or shares ^Regarding the duty of the agent to keep book accounts see Qiica^o Tit! - and Trust Co. v. Ward, 113 11: App. 327. An agent is liable to accounr only to his prinripal Attorney-General v. Chesterfield, l8 Beav. 596. "In mercantile agencies, and perhaps others, whe ire of the busi ness requires the agent to keep various accounts of .1.1.. receipts and expenditures, with his principal, he n principal, in chancery, for an account. B"' 'I-'' i'he allegcj aftency was for a single tran- ^ ,. . rave mentioned could arise; and t'v Blackford, J., in Coquilard '-lkI) 24, 3' TO ACCOUNT. 727 in the town of Cincinnati, Harrison county, Iowa, delivered by him to defendant to sell and dispose of for the best interest of plaintiff, upon the agreement of defendant to sell the same to the best possible advantage, and account to plaintiff for the proceeds thereof. And plaintiff avers that defendant refuses to deliver to him said certifi- cates, and refuses to account for the proceeds of the sale of the same though requested so to do. The defendant answers denying the allegations of the petition, and averring that at the time of receiving said certificates, the plaintiff directed him to exchange them for anything he could get for the same ; and that under such instruction he did exchange them for one gold w^atch, two silver watches and twenty dollars in money, which he immediately thereafter offered to deliver to plaintiff, who refused to receive the same ; that defendant has been at all times and still is ready and willing to deliver up said property to plaintiff, on his paying defendant a reasonable compensation for his trouble and services. The plaintiff' replied to the answer denying that he author- ized defendant to exchange said certificates as alleged by defendant, and denying that defendant had made any tender to plaintiff as al- leged. On the trial, which was by the court instead of a jury, the plaintiff gave in evidence the following receipt : "Council Bluffs, March 4, 1857. Received of A. Haas, three shares in Cincinnati, Harrison county, Iowa, to sell for him on commission. J. W. Damon." And proved that defendant had sold the shares a few weeks after receiving the same, to one Gardner, for half -share in Elk Horn, Nebraska. After proving the value of shares in Elk Horn, plaintiff rested his cause. The court on motion of defendant nonsuited the plaintiff for the reason that no demand to defendant to return the certificates, or account for the same had been shown, before suit was brought. We think the district court was not justified under the evidence given, in rendering judgment of nonsuit gainst the plaintiff. The duty of the defendant, by his written undertaking, was to sell the shares for the plaintiff. The authority to sell, did not authorize him to exchange them for other property. When the plaintiff, therefore, had shown that defendant had exchanged the shares for other prop- erty, instead of selling them, he so far established a conversion by defendant, that he was excused from any proof of demand before bringing suit. Storv on Agencv, § 78. Cutter v. Fanning, 2 Iowa 580. It was the duty of defendant to render an account to plaintiff' in due season, and in reasonable time after selling the shares, and in case of neglect, or refusal so to do, he is probably liable to an action without any demand, as soon as he is in default, for not accounting. Torry v. Bryant, 16 Pick. 528; Schee v. Hassinger, 2 Bin. 325. 728 DUTIES OF AGENT TO PRINCIPAL. When, however, he has rendered his account duly, and is in no de- fault of any kind, he is not liable to an action for money received by him, until a demand has been made upon him, or until he is directed to make remittance. Ferris v. Parris, 10 John. 285 ; Cooley V. Betts, 24 Wend. 203. One of the issues made by defendant was, that at the time of re- ceiving the shares, plaintiff directed him to exchange them for any- thing he could get for them. As the undertaking of defendant was in writing, and was to sell on commission, it might be doubtful how far he could be allowed to enlarge his authority by parol evi- dence applicable to the same subject-matter at the same point of time, and which might in effect contradict, vary or control what must be understood as the agreement of the parties as derived from the writing. Story on Agency, §§ 79, 80. As the question does not arise, we indicate no opinion. The judg- ment will be reversed for the error of the district court in directing the nonsuit. Judgment reversed. Section 5. — Duty of Gratuitous Agent. HAMMOND V. HUSSEY. 1871. Supreme Judicial Court of New Hampshire. 51 N. H. 40. Foster, J. — The substance of the plaintiff's declaration is that the school committee employed the defendant to examine candidates for admission to the high school, and to report upon their qualification ; that the defendant voluntarily undertook to make such examination ; that he examined the plaintiff, and found him to possess the requisite qualifications ; but, with intent wrongfully to exclude the plaintiff from the school and to deprive him of its benefits, maliciously and falsely reported to the committee that he was not qualified ; and, by reason of this malicious and false representation, the plaintiff was excluded from the school and lost its benefits. The declaration, therefore, charges upon the defendant a wilful and positive deceit and fraud ; and the suit is placed upon the general ground that, where one party sustains an injury by the malfeasance of another, the sufferer rnay maintain an action against the wrong- doer for redress. The defendant contends that upon this declaration no suit can be maintained ; because, assuming the allegations to be true, there is no contract, express or implied, between these parties, and without privity of contract there can be no liability. It is true ; and that the ■ nor of any oh was under ti' amination. But the pU parties were ; :nine the : L-.,;i :iinati<'>T'. imp]; unde form liis My ■Iff fortii this , ii ail lK>n >M 1 existence .ration in si;. • ich for mittee; or, v wrong and c: rule apply, i- wrong of SI wrong-doer ? V. Frecmai-i, V. VandcTvet 585 ; Salem BanK v, v But without pla -ii ■ these grounds, v\ them by the appi: Bernard, 2 Ld. E As all lawyers kix DTTTTES ■, wcvfr, 1k' ivd^ rt;u;.!.cr.:d lii;- ii< eounr ■,; any kind, he is not liable to an actioi; all, until a demand has been made iipon a ted to make remittance.. Ferris v. Pnrri?. lo iit'tts, 24 Wend. 203^ no cie- eceived i! he is Coolev One of the issues m. ceiving the shades, pi ''-":t he could get 1 in Writing, and v far he could ' e applicable time, and which i' be understood a writing. St- As the '■"" ment wil' the :ii defei- . . ._ . , _ lat at th' ected him to exchange th, As the undertaking oi <. commission, it might be ;large his authority 1 ■lect-matter at the ^;' :iradict, vary or c - the parties as 'i 80. e indicate no opinion. ...... j..--, r of the district court in directing ny- l OJt at must oni the Section 5 Aj^ent. )Li N. H. AM PS HI RE. : ..,v_. ^..,.;t...!.. o declaration is that iht. defendant to examine candidates for to report upon their qualification ; rtnnk to make such examinatir,)) ; that the defendan that he examined qualirscations ; bu, from the school and falsely reported t^ t' rea.son of this m;; excluded from the sv.i The declaration, tl" and positive deceit an^ ground that, where Oi of another, the suflferet n;ay maintain an action ag doer for redress. The defendant contends that tipon this dcclarati' maintained ; because, assuming the allep" • ' '^' contract, express or implied, betweei ■ ity of contract there can be no " • !ts benerits, m;, uni , ., „..„. ne was not quali;.... . ...a, by false representation,, the plaintiff was »st its benefits. charges upon the defendant a wilful md the suit is placed upon the general .aistains an injury by the maH*'^r\-: to 1 Smith's Lead. Cas. 254; Wilkinson v. Covcrdale, i Rep. 74 ; Doorrtian v. Jenkins '^ d 8: '^■ (5th ed.) 447, and note zv. By this rule a . ' or official dut^ :j';;UutOUsly ' >-f.ce of nri' inferior gross n' Prof, thus: "!. the peri' underta! It i-^ damage ^'c was the .'luntarv ap'cnv, u no 1: who, nevertheles vice requiring the trust auw ; . . ce of his responsibility is grc \et bound not to be guiii .■ in more broad and general terms, ous promise, and then enters upon to a full execution of all he has o general a proposition without It is sufficient to hold that if a volun- ition, is accountable for the conse- nuch more should he be held an- .'r-,1,,1 1,-,,! x.-1-onsf in connection ni\ except m the cri to include the sn The demurrer iinM'T r.in.sKieration seldom arise but the principle is broad enougl'^ ..sent inquiry. POST. .u->ij.[. TOO. Appeal from in the second ju' file general term oi 1 lent, entered upon ^;^ : he early leading case on the subject of gratu'- Bernard, Ld. Raym. 909. See note to that case in i S kinson v. Coverdale, i Esp. 75. "A short review of the leading cases will she mandatory, or one who undertakes to do an at ■- not answerable for omitting to do the act, ann ■ <>ri,y I nipts to do it, and does it amiss. In other words, htr Hi, ■■■' but not for a non^- • ■ though .■>, .. •. .' a\-. • t. Ch. J., in Thorji. hns. (N. Y.) 84. 9;- !ie court • lade July e is Coggs V. 188. SeeWil- ible for I I I GRATUITOUS AGENT. 73I 28, 1893, which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial at special term. This action was brought by plaintiff, as trustee, to recover of Augustus T. Post the sum of $25,000 alleged to have been placed in his hands to be loaned for plaintiff and to be returned on demand. After the death of Post the action was revived and continued against his administratrix. The facts, so far as material, are set forth in the opinion. Finch, J. — The relation between the parties to this controversy must be regarded as that of principal and agent. Post was a banker, — not a member of the stock exchange, and so bound by its rules, but familiar with its customs and usages, and controlled by them to some extent whenever dealing with stocks in the Wall street market. He held himself out to the business world in that char- acter. By his circulars he advertised himself as dealing in "choice stocks," and promised his customers "careful attention" in all their financial transactions. Those who dealt with him contracted for, and had a right to expect, a degree of care commensurate with the importance and the risks of the business to be done, and a skill and capacity adequate to its performance. That care and skill is such as should characterize a banker operating for others in a financial center, and different in kind from the ordinary diligence and capacity of the ordinary citizen. The banker is employed exactly for that reason. Without it there might cease to be motives for employing him at all. Isham was the trustee of an express trust, but in this dispute must be regarded simply as an individual, and without reference to his trust character ; for the trial court has found as a fact that, in em- ploying the banker to loan for him $25,000. he gave no notice of the trust character attaching to the money, contracted apparently for himself, and left Post to believe, and be justified in believing, that the money was his own. The evidence on the subject admits of some difference of opinion, but on this appeal the finding must control. In the same way the question whether Post's services in making the loan were or were not to be gratuitous must be deemed settled. The finding is that those services were to be without compensation ; and on that ground the appellant claims that Post was a gratuitous mandatary, and liable only for gross negligence. But, while no com- penstion as such was to be paid, it does not follow that the banker was freed from the obligation of such diligence as he had promised to those who dealt with him, or was at liberty to withhold from his agency the exercise of the skill and knowledge which he held himself out to possess. Nothing in general is more unsatisfactory than at- tempts to define and formulate the different degrees of negligence ; but even where the neglect which charges the mandatory is described as "gross," it is still true that if his situation or employment implies ordinary skill or knowledge adequate to the undertaking, he will 732 DUTIES OF AGENT TO PRINCIPAL. be responsible for any losses or injuries resulting from the want of the exercise of such skill or knowledge. Story on Bailments, § 182a ; Shiells V. Blackburne, i H. Black. 158; Foster v. Essex Bank, 17 Mass. 479 ; First Nat. Bank v. Ocean Nat. Bank, 60 N. Y. 295. In the latter case it was said that ordinary care as well as gross negli- gence, the one being in contrast with the other, must be graded by the nature and value of the property, and the risks to which it is ex- posed. Post, therefore, was required to exercise the skill and knowl- edge of a banker engaged in loaning money for himself and for his customers, because of the peculiar character and scope of his agency, because of his promise of careful attention, and because the con- tract was made in reliance upon his business character and skill. We should next consider upon whom rested the burden of proof. The plaintiff alleged and proved that he put into Post's hands, as his banker and agent, to be loaned upon demand at the high rates of interest prevailing, and in the mode approved by custom and usage, the sum of $25,000, which sum Post had not returned, but re- fused to return upon proper demand, and so had converted the same to his own use. That made out plaintiff's case. Judgment for him must necessarily follow, unless Post, in answer, has established an affirmative defense. That which he pleaded and sought to prove was that the money was lost without his fault and through an event for which he was altogether blameless. In other words, he was bound to show that he did his duty fully and faithfully, and without negligence or misconduct, so that the resultant loss was not his, but must justly fall upon the plaintiff. Marvin v. Brooks, 94 N. Y. 75 ; Ouderkirk V. C. N. Bank, 119 id. 267. With that burden resting upon him, we must examine his defense and the evidence given in its support, and determine whether or not it is our duty to sustain the adverse con- clusion, to reverse which he brings this appeal.^ * * * Judgment reversed. BEARDSLEE v. RICHARDSON. 1833. Supreme Court of New York, it Wend. 25. This was an action on the case, tried at the Onondaga circuit in March, 1832, before the Hon. Daniel Moseley, one of the circuit judges. The declaration contains several special counts ; in the one prin- cipally relied on, it is stated that the plaintiff delivered to the defend- ant a bank note for $100, the property of the plaintiff, which the de- fendant undertook and promised to take care of, and safely carry from New Orleans to the town of Salina in this state, and there deliver the * The court here considered the question whether Post was in fact negligent. <: to the but wholly 11* tains the co; duced the d^ who state' " to the 'I Beardsl'j' bill for ,^ ter, and of the ci and the ^his str't li Uti. By iHK (' ■AVdi tact, nor u<:s >ealed letter. It c unless he broke tl and there is v-- It was a s€ tho .Icr.rn.'.!i I not recovc ;s bailee. T: •v'hether he wa;^ . From the testimoii , or application of any was bound to show &■ i'^ DUTIES OF AGENT TO be responsible for any. losses or injuries resuli: tli'^ «.\\ercise of such skill or knowledge. Sto'--- ^! it:lls V. Blackbume, i H. Black. 158; 1 .Mjss. 479; First Nat. Bank v. Ocean Nat. i auK, rlic IflHer case it was sait with the othe- e and value v • 'perty, and the i' i. Post, therefore, was required to exercit; . .^c of a banker enrr;! ■'"'•' customers, because o. because of his promi-r • tract was made in relianct We sl> ■ • The pla; want of "^ '82a; ;., 17 ,. In ;cgH- I by !l p roof. his banker ,i. of interest ; usage, the sum o^ fused to retnrr- '^ to his own r;-: fall upon the plai; V. C. N. Ban'- - must examin' determine wl chision, to r«;.. Judgment reversed. ng money fo. . character and sc< 1 attention, and b^^.; business character a vhoni rested the burduu that he put into Post's hands, as I upon demand at the high rates ' mode approved by custom and um Post had not returned, but re- 'd, and so had converted the same •-lintiff's case. Judgment for him ■st, in answer, has established an > pleaded and sought to prove was LiL his fault and through an event for less. In other words, he was bound to md faithfully, and without negligence . - ultant loss was not his. but must justly irvin v. Brooks, 94 N. Y. 75 ; Ouderkirk ^^'''ith that burden resting upon him, we the evidence given in its support, and ■ duty to sustain the adverse con- this appeal.^ * ♦ * 1833. Sltprem: \Ew York, ii Wend. 2^ , as an action on 1832, before the ..es. tried at the Onondatja circuit in ''■r\ ''""•'r. ■ ..' circuit J11- Ihe declaration contains .^c\c:rai b.pccial co Juts , m ' cipally relied on, it is stated that the plaintiff delivered t- cl- ant a bank note for. $100, the property of the plaintiff, which the de- fendant undertook and promised to take care of, and safely carry from Mew Orleans to the town of Salina in this state, and there deliver the i lie court here considered the question whether Post was in fact negligent. GRATUITOUS AGENT. 733 same to the plaintiff in a reasonable time then next following ; it is then averred, that although a reasonable time had elapsed, etc., the defendant did not and would not, although often requested, etc., safely and securely carry the bank note from New Orleans to Salina, but wholly neglected and refused so to do. The declaration also con- tains the common money counts. On the trial, the plaintiff pro- duced the deposition of William Beardslee, taken at New Orleans, who stated that in the spring of 1829, at New Orleans, he delivered to the defendant a sealed letter addressed to the plaintiff, James Beardslee, at Salina in this state, containing a United States bank bill for $100, and informed the defendant of the contents of the let- ter, and that the bill belonged to the plaintiff ; and that the defendant promised to deliver the letter to the plaintiff as soon as he arrived at Salina, stating that he was going to Auburn, and would proceed to Salina and deliver the letter to the plaintiff. It was further proved, that about the ist of May, 1829, the defendant was at Auburn, and that this suit was commenced in May, 1830. The judge refused to nonsuit the plaintiff, and charged the jury that although the plain- tiff was not entitled to recover on the special counts of his declara- tion, yet he would submit to them whether he was not entitled to re- covery on the money counts. He remarked that the plaintiff having shown the placing of the letter containing the bank note in the hands of the defendant, his promise to deliver it, his arrival at Auburn, and the lapse of a year thereafter previous to the commencement of this suit; it was left to them to say whether a demand might not be presumed, if a demand was necessary. And he further instructed the jury, that although the defendant was a bailee without hire, yet the facts shown seem to impose upon him the necessity of making some proof accounting for the letter and bank note. The jury found a verdict for the plaintiff for $114. The defendant moves for a new trial. By the Court, Savage, Ch. J. — If the defendant was liable upon the money counts, he was not liable as bailee, but as having received the money of the plaintiff for his use. The evidence does not prove that fact, nor does it show that he received it otherwise than in a sealed letter. It cannot be said to be money in the defendant's hands ; unless he broke the seal, it could not answer the purposes of money, and there is no evidence of such act. It was a sealed package of the value of one hundred dollars, which the defendant, as bailee, without reward, undertook to deliver. It was held at the circuit, and, I think, correctly, that the plaintiff could not recover upon his special counts, which charged the defend- ant as bailee. The defendant was liable for gross neglect only ; and whether he was guilty of any neglect, does not sufficiently appear from the testimony. It does not appear that any demand was made, or application of any kind, until the suit was brought. The plaintiff was bound to show that the money was lost by the defendant's neg- 734 DUTIES OF AGENT TO PRINCIPAL. ligence, or could not be obtained on request. Had he shoAvn a de- mand and refusal, the defendant, I think, would have been bound to account for the loss, and to indemnify the plaintiff, unless he could show the property lost without fault on his part, that is, without gross negligence. New trial granted, costs to abide event. ^ VICKERY V. LANIER. 1858. Court of Appeals of Kentucky, i Met. 133. The facts appear in the opinion. Stites, J. — No doubt exists as to the principles of law applicable to this case. If the appellees, or either of them, undertook for a con- sideration to insure the goods which were lost, and failed and neg- lected to comply with such undertaking, a liability at once attached for any damage resulting from such failure. Or, if such undertaking were merely gratuitous, and they pro- ceeded to execute it, and then abandoned or neglected its perform- ance, a like liability accrued. In the one case the claim for damage would grow out of a breach ^ In Doorman v. Jenkins, 2 A. & E. 256, it was held that a gratuitous bailee is Hable only when guilty of gross negligence. On page 261 Taunton, J., said : "The phrase 'gross negligence' means nothing more than a great and aggra- vated degree of negligence, as distinguished from negligence of a lower degree." "To define what constitutes 'gross negligence' so as to render the phrase more intelligible or exact, is difficult if not impossible ; and all attempts to do so have, it would seem, heretofore failed. We are disposed to regard it as a question of fact, to be determined by reference to all the circumstances of the case, including the subject-matter and objects of the agency, and the known character, qualifications, and relations of the parties. What would be but slight negligence in the treatment of a matter of trifling importance, might perhaps be gross negligence in dealing with concerns of momentous interest. And a stupid or ignorant man, while devoting all his powers to the duties of his agency, might be guilty of blunders of omission or commission which, in one of higher qualifications, would be strong or conclusive evidence of culpable delinquency." Brinkerhofif, J., in Grant v. Ludlow's Adm'r, 8 Ohio St. i, 10. "No one taking upon himself a duty for another without consideration is bound, either in law or morals, to do more than a man of that character would do generally for himself under like conditions. The exercise of reasonable care is in all such cases the dictate of good faith. * * * The general doctrine, as stated by text-writers and in judicial decisions, is that the gratuitous bailees of another's property are not responsible for its loss unless guilty of gross negli- gence in its keeping. But gross negligence in such cases is nothing more than a failure to bestow the care which the property in its situation demands ; the omission of the reasonable care required is the negligence which creates the liability; and whether this existed is a question of fact for the jury to deter- mine." Field, J., in Preston v. Prather, 137 U. S. 604, 608. uch liabilit; iiic parties e question • .r on the. ' i verdict 'eicl such a riu;l!;;i; ■ About the '■ onceded tha' :: Nashvi'.' iealings 1 Orleans ; point to pellants h,i ; ni .. surance. aiid tliai nor any for their ■ ;,,rr f , forward *'^ 'eg^ed u' 'XL an V . or, in ocery and c- lu be ; "F.ki CO' in case of ■:■ at New>-'i ■■■ The answer tk- ide lo ■ ; or thai previous deaiivi:^- between the parties from which any pr- ^o;-reement to iiisr.re could have been or was implied. Jones, the witness, and the only one who is inti the direct uu ' T.. A. T^anier saw this !..,., . ,-, . T.anier ^ave me , 'othing was offc. ontract to insiir* ie could ,o have i would be that he ' done. asure, because ro fu; nat it was not i' .'ashville to insu; This was subst n- undertaking, nsufficient to est; (.ffect. ; couid not be obtained on rcqucsi n a de- '■ refusal, the defendant, I think, \v«- u .jund to It for the loss, and to indemnify the plaii; e could the property i-^-* "•"■^•— ^ ^-^-it •. i.- • ■ ,,-'rhout aegligence. \-: i.r:.':l o^ranteci, ccs;-: lo aDjac evenc.- 185S. CoT-T, - Kentv". The fa; Stites, the principles of law applicable to thi er of them, undertook for a con- '^i'ier h were lost, and failed and ncg- ^ a liability at once attached iilure. • ; e merely gratuitovis, and they pro- i] ,:i ■ 1 IrnTf, ' I >.r 1 jf^O'W->r t ,■■1' 'r^ riiTfcirin- -'■'■"'■ ■'' " ' -' ' that a gratuitous bailee 261 Taunton, J., said: >- .ian a great and aggra- ■m negligence of a lower 1' so as to render the phrase ^1 - ■ -ible; and all attempts to do We are disposed to regard it as a -eference to all the circumstances of , : objects of the agency, and the known f the parties. What would he but r would ble care statei" iters and in j, -^ions, is that - its loss ' '' e in suci • ^ :■- ;■•-. .>^ i,L I. ..^ ^ I'.M. >.[r. jjfopcrty :: 11 of the reasonable care required is the : . : ;n\d whether this existed is a nni-' 'd, ]., in Preston v. Prather, GRATUITOUS AGENT. 735 of contract, and in the other out of the misfeasance of the party. But to create such Habihty, however, there must have been an undertak- ing. The parties should have intended to enter into the agreement. The question here is, was there sufficient evidence of an under- taking on the part of Lanier to effect an insurance, to have author- ized a verdict in behalf of appellants, or, in other words, to have up- held such a finding? About the general facts of the case there is no controversy. It is conceded that Lanier & Co., were grocery and commission merchants in Nashville; but that, prior to this transaction, there had been no dealings between the parties ; that the goods were shipped from New Orleans to their care at Nashville, to be re-shipped from the latter point to Stigell's Landing, in Pulaski county, Kentucky ; that ap- pellants had no funds in the hands of Lanier & Co., to pay for in- surance, and that no arrangement had been made for that purpose, nor any for their reimbursement in case of insurance. The undertak- ing to forward the goods was made at New Orleans some days before the alleged undertaking to insure. The answer admits the undertak- ing to forward, but emphatically denies any promise or undertaking, implied or express, to insure ; admits also, that word was sent to in- sure, and that an effort was thereafter made to that effect, but denies that they promised to obtain insurance, or that there had been any previous dealing between the parties from which any promise or agreement to insure could have been or was implied. Jones, the witness, and the only one who is introduced to prove the direct undertaking or promise, says, in substance, that after L. A. Lanier had started to Nashville, Vickery requested him (the witness) to tell Lanier at Nashville to have the goods insured ; that, according to request, he went to the counting-room of Lanier & Co., saw Lanier alone, and informed him of the request of Vickery in this language : "Vickery wants his things or goods insured," and that "Lanier gave me to understand, as I thought, that it would be done." Nothing was offered Lanier to pay for insurance, nor were there any contract to insure. Nothing was said about paying for insurance. He could not say that Lanier did or said anything when he told him to have the things insured, but it was his understanding "that it would be done." Upon his return to Pulaski he was told bv Lanier that he had tried to insure Vickery's goods, but could not get it done. McKee proved that Lanier told him no effort had been made to insure, because no funds had been left to pay for it. And Gordon, that it was not the custom or duty of commission merchants in Nashville to insure goods forwarded to them. This was substantially all the evidence as to the alleged promise or undertaking. And we have no hesitation in saying it was wholly insufficient to establish such promise, or to uphold a verdict to that effect. 736 DUTIES OF AGENT TO PRINCIPAL. The utmost it proves is a request to insure, and the impression or understanding of the witness that "it would be done," without, as he says, any word or act upon which to found such understanding. A simple request to insure, where no funds are provided, or where there has been no previous dealing between the parties or no goods on consignment from which the party requested may reimburse him- self, will not, of itself, devolve upon him the duty to insure, or render him liable for failing so to do. Neither will his subsequent effort to comply with such request have that effect. There must have been an undertaking or promise to insure, made at the time, and intended as such by the parties. The party making the request must have had some assurance on which he had the right to rely, and from which he had the right to expect the other party would insure, or, in other words, there must in the language of all the books have been an undertaking to that effect. Without it no liability attaches. Such promise or undertaking is implied where the course of deal- ing has been such that the agent has been used to effect insurances, or where he has funds or effects on hand, or even where the bill of lading from which he derives his authority contains an order to insure, or where the general usage is to insure, and in such case he is bound at his peril to insure. But in the absence of these circum- stances, as in this case, no such obligation rests upon him. And he is not bound for any loss arising from a failure to insure, unless he has undertaken so to do. (Story's Agency, 238; Paley on Principal and Agent 19; Story on Bailments 165.) Our opinion, therefore, is, that the court below properly instructed the jury to find for appellees, and the judgment must be affirmed.^ McNEVINS V. LOWE. 1866. Supreme Court of Illinois. 40 111. 209. Lawrence, J. — This was an action brought against the appellant for malpractice as a surgeon and physician. In the third and fourth instructions for the plaintiff, the court told the jury that the defend- ant, if he held himself out as a physician, was liable for whatever damage may have accrued to the plaintiff by reason of any want of care or skill on his part whether he charged fees or not. This states the responsibility of a physician too strongly, as it requires the high- est degree of care and skill, whereas only reasonable care and skill are necessary. As to the payment of fees the instruction is unob- ^ The principal, upon learning that the agent has failed to insure, should effect the insurance himself. If he fails to do so, he cannot recover from the agent for a resulting loss. Brant v. Gallup, 11 1 111. 487. he must be held to orcl: ticf as sucii, an< he does not iv Ritchey v. W-. judgment niu highest dearer Judgment riglit tc I se officers ill The bil a statf -n linqiH. ment cient ' secor third, 1 withdraw , use, the f; president duties. The que^^-''"i 'i is to be M bill, do noi Viewed in ■ to persons h' t'cndant^. is i' is a plain one- manner provided prudence in so d < servants, but the vigilance was nor' The utmost it proves is a request to insi uD.lcrstanding of ihe witness that "it wov he siays, any word or act upon which to foir A simple request to insure, where no fuu... there has been no previous deaUng between tl on consignment from which the party requeste self, will not, of itself, 'ievolve v.pon him the dv him liable for failing comply with such rec undertaking or prom such by the parties, some assurance on which he had the right to expec words, there must in th. undertaking to that t'"' ■'1 or ' ■ li, as ding. - vvhere lods Such pronii-'^' nr w ing has : or wher- from which : 1 o tiif 'i^ -i. .ure, or is bound Our opinion, ih ' ither will hi^ io [ effect. Thv^ an vnade at the tinu iaking the reque.-^ ;he right to rely, and trom which ler party would insure, or, in other c^e of all the books have been an 'Ut it no liabihty attaches. implied where the course of deal- las been used to effect insurances, n hand, or even where the bill of > authority contains an order to „,;,;: is to insure, and in such .case he But in the absence of these circum- h obligation rests upon him. And he '!g from a failure to insure, unless he ■- Agencv, 238; Paley on Principal .165.) at the court below properly instructed •\r] trie- iiidcment must be aiifinned.'^ McNEVINS V. LOWE. 1866. Supreme Court of Illinois. 40 111. 209. Lawrence, J. — Th!^ vas an action brought again=!t the appellant for malpractice as a ad physician. In the • fourth instructions for the pi,., ., .c, .ae court told the jur} ■...■. ^>.«. defend- ant, if he held himself out as a physician, was liable for whatever damage may have accrued to the plaintiff by reason of any want of care or skill on his part whether he charged fees nr rK>t. This states the responsibility of a physician too strongly, a -es the h';jj' est degree of care and skill, whereas only rea- .ire and .^kili are necessary. As to the payment of fees the mst ruction is unob- ' The principal, upon ]eamin.g that the agent has failed to insure, should effect the insurance himself. If he fails to do !^o. h-r rarnot recover from the agciU for a resulting loss. Brant v. Gal' GRATUITOUS AGENT. '/■};j jectionable. If a person holds himself out to the public as a physician he must be held to ordinary care and skill in every case of which he assumes the charge, whether in the particulr case he has received fees or not. But if he does not profess to be a physician nor to prac- tice as such, and is merely asked his advice as a friend or neighbor, he does not incur any professional responsibility. The case of Ritchey v. West, 23 111. 385, is to be understood in this sense. The judgment must be reversed because the instruction required the highest degree of care and skill. Judgment reversed. WILLIAMS V. McKAY et al. 1885. Court of Errors and Appeals of New Jersey. 40 N. J. Eq. 189. Beasley, C. J. — This bill was exhibited by the receiver of the Mechanics' and Laborers' Savings Bank against its managers, for the purpose of holding them liable for certain losses sustained by the institution from time to time through a series of years. The right to the relief prayed is based on the alleged negligence of these officers in the management of the corporate affairs. The bill which is somewhat loosely framed contains, in substance, a statement which is mainly substantiated by details of official de- linquencies in the following particulars, viz. : First, in the invest- ment of moneys in a large number of specified instances on insuffi- cient landed security, and in violation of the charter of the company ; second, in the loaning of other moneys on mere personal securitv ; third, in permitting the president of the bank, one John Halliard, to withdraw, without giving adequate security ; and to apply to his own use. the funds of the bank ; and fourth, in the failure to require the president to give bond for the faithful performance of his official duties. The question before this court is whether the decree appealed from is to be sustained, which holds that these charges, as stated in the bill, do not lay any ground of equity in the complainant. Viewed in its general aspect, the equitable rule which is applicable to persons holding official positions, such as were held by these de- fendants, is not in doubt. The duty belonging to such a situation is a plain one — to care for the moneys intrusted to them in the manner provided in the charter, and to exercise ordinary care and prudence in so doing. It is true that the defendants were unpaid servants, but the duty of bringing to their office ordinary skill and vigilance was none the less on that account, for to this extent there 47 — Rein HARD Cases. 738 DUTIES OF AGENT TO PRINCIPAL, is no distinction known to the law between a volunteer and a salaried agent. These defendants held themselves out to the public as the managers of this bank, and by so doing they severally engaged to carry it on in the same way that men of common prudence and skill conduct a similar business for themselves. This is the measure of the responsibility of officers of this kind.^ Decree unanimously reversed. ^ See collection of cases on liability of bank directors in 5 Cyc. 480-482. A leading case on the subject of the liability of bank directors is Hun v. Cary, 82 N. Y. 65. On page 74 of that case Earl, J., said : "One who volun- tarily takes the position of director, and invites confidence in that relation, un- dertakes, like a mandatory, with those whom he represents or for whom he acts, that he possesses at least ordinary knowledge and skill, and that he will bring them to bear in the discharge of his duties. Such is the rule applicable to public officers, to professional men and to mechanics, and such is the rule which must be applicable to every person who undertakes to act for another in a situation or employment requiring skill and knowledge ; and it matters not that the service is to be rendered gratuitously." See Morawetz, Private Corporations, § 552. Til Section 1. — ^By the Terms of the Agreement, GUNDL legeci fai cert a-" • Illinois, I & E hay 1-^ Gundlac- The s^' ':oiintv -., Fischer tumish 1 G. Fisch^ 1867; th: First. To sell no IS Ol liiis li on in the ;.i a simi" !)onsibilit\ \ ce unanimoii ' See collection of c; \ ir.w'Jn > case on \ V. 65., O' ^le po.-.;(i< uertaKf s, iike a ■ n acts, that he .pos<^^ bring them to bea, pnbiic officers, to ■ must be ap! ' situation or \vn to Uie l.i\ .rioi-( pay the said Fischer ten dollars on two dollars on each rake, and eight dollars for eacb (irii, au su;. ■•' ■ ' ' - - bove, the same to be payable at the time and in as the payments are made on the sum to include the compensation for selling, collecting, remitting and put operation. .ties hereunto set their han'I? and scah ring tne mactimes m In testimony wherci this 3d day of May, 1867 ijL -'.JL^i^.^cK & Esler. v >.. .^.. . George Fischer. (L. S.)' Per Curiam. — A fair and reasonable construction of the agree- ment makes Fischer the "" Gundlach & Esler, for the .sale of machines, until the first c; , 1867. And the appellees, by their obligation, under Uie iunhful disv f all of Fischer's duties as such u. : that he shoulc -for and ]my all moneys, notes, etc., i :ch & Esler. for 'i ;- chinery received prii date. It appear ~ lui that he received machinery prior to the first day r, 1867, amounting to $2,023.92. For his faithful acco'"^ sum his sureties are liable, but they are not for machine received after that date. The agreement only contem; ' should act as agent up to that time, and, hence, the sur^ d them- A portion of the agreement is omitted. BY TERMS OF AGREEMENT. 741 selves that he should account for machinery received before that date. The evidence, however, fails to show that Fischer has accounted for all the money and notes received on the sale of the machinery received before the first of October, 1867. Even by Fischer's evi- dence, it appears that there is some amount still due Gundlach & Esler, for machinery received within the period for which the sure- ties were bound, and for whatever sum that may be so due they are liable and the jury should have found that amount, by their verdict. Fischer does not pretend that he had paid the full amount received for the sale of machinery so furnished him, and appellants' witnesses make the amount over two hundred dollars, after deducting the note sent him for collection after the first of October, and all payments. But allovv'ing him a credit of all he claims, still he would owe them, for which his sureties would be liable, at least $87 and interest. The evidence, as given in this transcript, shows at least that amount. We are clearly of opinion, that the jury misunderstood the evidence and erred in the finding of the verdict, and the court below should have granted a new trial. The judgment of the court below is reversed and the cause remanded." MOORE V. STONE et al. 1875. Supreme Court of Iowa. 40 Iowa 259. The plaintifl: brought this action to recover the east half of the southeast quarter of section 32, in township 69, north of range 35 west. There was a jury trial resulting in a verdict for the plaintiff. On motion of the defendants, a new trial was granted upon the conditions that they should pay all the accrued costs, file an equitable cross-demand asking to redeem the land in controversy, and to cancel the treasurer's tax deed to plaintiff, and pay into court for the use of the plaintiff a sum equal to the whole amount of the taxes, inter- est, costs and penalty included in said tax deed, and the cause to re- main upon the equity docket. Under this order the defendants filed an answer, denying the al- legations of plaintiff's petition, alleging that Stone is the absolute owner of the premises ; that he acquired the same by purchase from his co-defendant, Scarlett, in 1870; that in the summer of 1868, Scarlett employed plaintiff' to purchase the lands in controversy for him ; that plaintiff did purchase the lands for him, as his agent, from one Stewart, and received a warranty deed therefor ; that before the completion of said purchase, and while the plaintiff was ■ See Danby v. Coutts, L. R. 29 Ch. D. 500. Compare Sines v. Superintendents of Wayne Co., 58 Mich. 503. 742 TERMINATION OF AGENCY, acting as the agent of Scarlett, the plaintiff fraudulently purchased the land for "back taxes," about the 12th of October, 1868, re- ceiving a certificate of purchase from the treasurer, and fraudulently concealed such purchase from said defendant, Scarlett ; that defend- ant, Scarlett, depended and relied upon plaintiff that said land so purchased should be clear of incumbrances, and that plaintiff so rep- resented to said Scarlett that the land was all right, when in fact plaintiff was concealing a tax certificate on the land. The money ordered by the court to be paid into court for the use of the plaintiff was so paid. The answer prayed for a cancellation of the tax deed, and for general relief. The cause was tried to the court, and a decree rendered for de- fendants. Plaintiff appeals. Miller, Ch. J. — The evidence establishes the following state of facts: In the month of June, 1868, Mr. Scarlett applied to the plain- tiff, who was then a member of the banking firm of Moore & Mclntire, for the purpose of buying the land in controversy, if they had the agency. On being informed by plaintiff that they were not agents for the land, Scarlett said that Horace Everett, of Council Bluffs, was agent for the owner of the land. Plaintiff then examined and found the land in a printed list of lands for sale by Mr. Everett. Mr. Scarlett desired the plaintiff to buy the land for him at five dollars per acre. The plaintiff said he was going to Council Bluffs in a short time, and would see Mr. Everett and try and make the purchase. In a few days after this the plaintiff did see Mr. Everett, and bargained for the land as Scarlett desired him to do. About two weeks after this, Scarlett again called at the banking house of Moore & Mclntire, did not find Moore in, but Mclntire was there, and informed him that they had obtained the land for him. In a few days thereafter Scarlett called again and paid one-half the purchase money for the land, and received a written contract for a deed upon the payment of the balance. Scarlett then inquired of plaintiff how much he charged for his services? "He said, usually $20, but in this case $10 would do," and Scarlett then paid the same. The plaintiff resided in Page county where the business was trans- acted, Scarlet resided, and the land was situated, in Taylor county. Sometime in the month of July, 1869, a Mr. Farrell called at the banking house of Moore & Mclntire, and inquired if the deed to Scarlett for the land in controversy had been received by Moore & Mclntire. He was told by them that it had not. The deed was afterwards received, being sent by Everett to Moore & Mclntire's banking house, to be delivered by them to Scarlett on payment of the balance of the purchase money. On the 27th of August, 1869, Far- rell again called, and plaintiff delivered the deed to him on receipt of the money due, which was remitted to Everett. In delivering the deed and receiving the last payment on the land, Moore & Mclntire any k" there were any purchased the certificate at did not make this tract wa chased at 1 ' treasurer pay in: the d' certify comr of tlv lat Mre ■ :ix -id chase ■ ai; l!k'' ■ mad' him '' payment undef^-'- were and on perforfiK ' and, ]' Agevu This wa^ Moore & time the> Their ag( a good tit 1 the written ihe one-h ■^• es for t' :,ad on . iied. sale bv At ^h:^'^ where the lav. 742 ter; acting as the agent of Scarlett, the j; the land for '"back taxes," alsout tli ceivinsr a certificate of purchase from i such purcl ' ilett, clepeni purraased should be resented to said Sc:^; plaintift was concea! ordered by the court was so paid. The a: and for general !• The cause wa fendants. Plaintiii .ippe MiLLEK, Ch. J.— The facts: In the month i tiff, wlv "•"■ ■•'"" Mclntii ha.1 the ., . said detenu., died upon ^ icumbrances, aii •ne land was a . tificate on t^ '!o court for tlit ^ tor a cancellatio .rt, and a decree renderc establishes the following state of \ Mr. Scarlett applied to the plain- f the banking firm of Moore & ag the land in controversy, if they led by plaintiflE that they were not That Horace Everett, of Council '. Plaintifif then examined s for sale by Mr. Everett. ■ to buy the land for him at five : I lie was going to Council Bluffs F.verett and try and make the I- Liie plaintiff did see Mr. Everett. lett desired him to do. About two led at the banking house of M in. but Mclntire was there. iiied the land for him. In a m and paid one-half the puri.' ,1 written contract for a deed u];)oit lett then inquired of plaintiff how "He said, usually %20, but in this hen paid the same. j.nty where the bnsipi uis- '(] was : Wt' & ; informttu lurii ti days thereafter ,v money for the land, and the payment of the b - • much he charged for ■ case $io would do," The plaintiff resicK acted, Scarlet reside .^o-nctime in the m^ 1869, a house of ^'' tire, and inqun -. for the lano - liqd been '■• -- Mclntire. He was a: it ha(i afterwards received, '^t.' -^ -« < r; r.v^rett t' banking house, to be delivered by them to Scar' balance of the purch<; y. On the 27th ■ rell again called, and deHvered the de r!!e money due, which was remitted to F Ct'd and receiving the last payment on th- deed t< BY TERMS OF AGREEMENT. 743 both testify they were acting as agents of Mr. Everett, whom they charged the usual collection fee of one-half of one per centum. The evidence further shows that neither plaintiff nor Afclntire had any knowledge, at the time they made the purchase for Scarlett, that there were any tax liens on the land. The firm of Moore )& jMcIntire purchased the land at tax sale in October, 1868, and held the tax certificate at the time of the delivery of the deed to Scarlett, and did not make the fact known to him. In making such tax purchase this tract was not selected and purchased by itself, but was pur- chased at the same time with other lands as they were offered by the treasurer, regardless of the ownership, and without any inquiry, and paying no attention to the numbers, and at the time of the delivery of the deed to Scarlett, they had no knowledge that they then held a certificate for the purchase of the land at tax sale, except what was common to all persons from the records. They then held certificates of the same kind from ten to twenty thousand acres, and their atten- tion was not particularly called to this tract, until after the treasurer's deed came into the hands of the plaintiff. Upon these facts it is quite clear that the agency of the plaintiff, or of Moore & JMcIntire, for the purchase of the land for Scarlett, terminated at the time they delivered to him the written contract for a conveyance of the land on the receipt of the one-half of the pur- chase money, and the payment of their fees for the services per- formed. When this was accomplished Moore & IMcIntire had done all that they, or the plaintiff, had been employed to do. They had made the purchase as Scarlett had desired them to do, delivered to him the written contract sent to them for Scarlett, received the first payment as per agreement. This completed the services they had undertaken. Scarlett himself so regarded it, for when these things were done he inquired how much they charged him for their services, and on being informed as to the amount he paid the same. They had performed the business for which the agency had been constituted, and, by operation of law, the agency was terminated. See Story on Agency, § 499, and cases cited ; 2 Kent's Com. 643. and cases cited. This was in July, 1868. The purchase of the land at tax sale by Moore & Mclntire was not made until October of that year. At that time they were as free to purchase the same as any other persons. Their agency no longer existed ; they had not undertaken to procure a good title for Scarlett, nor to examine the title for him. The land was situated in another county from where plaintiff resided ; nothing was said to them about the title, and they might well suppose that Scarlett, since he resided near the land and desired to buy it, had examined or procured some one to examine the records, in the county where the lands were situated. It is also quite clear that the fact that the deed to Scarlett was sent by Everett to the banking house of Moore & Mclntire, for the pur- pose of being delivered upon payment of the balance of the purchase 744 TERMINATION OF AGENCY. money, did not operate to revive the prior agency for the purchase of the land. In this transaction Moore & Mclntire acted for, and as agents of the grantor in the deed. There is no evidence that Scarlett procured the plaintiff, or his firm, to obtain the deed for him. On the contrary it was sent by Everett to Moore & Mclntire for the pur- pose of collecting the balance of the purchase money then due. They performed that service for Everett, and received their compensation from him. It is equally clear that the plaintiff was not guilty of any fraud, in failing to disclose the fact of the tax purchase by ]\Ioore & Mclntire. Their relations were not such as required such disclosure to be made, especially when it is affirmatively shown that they had no actual knowledge that they held the certificate of purchase at the time they delivered the deed to Scarlett. The decree of the court below will be reversed, and a decree en- tered for plaintiff in this court if he so elects, or the cause will be remanded for a decree to be entered in conformity with this opinion by the district court. Reversed.^ Section 2. — By Revocation of Authority. PHILLIPS ET AL. V. HOWELL. 1878. Supreme Court of Georgia. 60 Ga. 411. Jackson, J. — Mrs. Phillips, joining her husband in the action, sued E. P. Howell for the recovery of one thousand dollars, on the following- receipt : "Atlanta, Georgia, April 17th, 1876. Received of Mrs. Mary S. Phillips, one thousand dollars for the purpose of effect- ing a settlement of a civil suit for damages instituted by Nancy L. Ray V. W. R. Phillips, Jr., pending in Fulton superior court — said suit to be settled during the present term of said court, if possible, and for the sum of one thousand, dollars, and in the event the same is not settled for said sum, and on terms to her every way satisfactory, I am to return said one thousand dollars to said Mrs. Phillips, or her legal representative. (Signed) E. P. Howell." Howell pleaded the general issue. The jury, under the charge of the court, found for the defendant ; the plaintiff made a motion for a new trial, it was refused, and plaintiff' excepted. ^Accord: Short v. Millard, 68 111. 292; Atlanta Savings Bank v. Spencer, 107 Ga. 629. In Wallace v. Goold, 91 111. 15. an agent who was employed to secure a debt due his principal, obtained the endorsement of the debtor to several notes. It was held that his agency did not terminate while he held the notes and his acts were not approved by the principal. liie inonev \ between Hoa- was the attoi Mrs . Phi Hip. ^ vas a sort ■■ money u-;' the real w'hu to I!: the v.: rom tnc the 1:'^^ Ii, riON OF '■d noi operaie lo revive nn- pi. In this transaction Moore • che grantor in the deed. The. die plaintiff, or his firm, to ^ V -ntrary it was sent by Everett to Mooi ■ •i' 'collecting- 1'-- Uv.'-i^re of 'he purcha^ 1 that s , and re^. , 'urcriase oi tni and as i 1ett Ori ior tile pur- '!iie. They cnsation It is equally clear t; failing to disclose the Their relations were v. especiall}' when it is knowledge that they 1.' delivered the deed to . The decree of t^e lered for plaintilT ;ff was not guilt: n: purchase by M juired such disck shown that they had lonte of rnirchape at tlic '. in Lire-. • dr. he so elects, or the cause will be itered in conformity with this opinion :,\sii ov.t.i. i-AL. V. HOWELL. RT OF Ci 66 Ga. 411. ;;:,',a i_. i'. iioweii i-- iGlIowing-receipt : "A Mrs. Mar)-S. Fl- ing a settlement R^y V. \V. R. Phiiij] suii io be settled du' ; and for the sum of or not settled for said s 1 am to retjurn said her lepal representative. Howell pleaded the ge^ the court, found for the for the purj' "■':»■ , .-s instituted • • 1 . ig in Fulton superior couix — . id •It term of said court, if pos»;IjA-. Jlars, and in the event the same is 11 it.rms to her ev-"--- ''-■ ■ ••♦<->^}- >and dollars to . < - • ) E. P. Hox'> ,e. The jurv ; the plaintiff ni. : ntift' excepted. .- illard, 68 111. 292 ; Atlanta S 7 ua. 029. ]v '^'/rillari' v. Conld. OT II!. t^. -•'.r nrrcnt who ipt^'-Vt-d by tiic pri:irip:M BY REVOCATION OF AUTHORITY. 745 It appears from the evidence that ]Mrs. Ray had sued Phillips, a son of the plaintiff, for seduction, and that this was the suit to be settled. It further appears that the case has never actually been settled — that it is not marked settled on the docket, nor has any of the money been paid — that terms of settlement were agreed upon between Howell, who was the attorney of Phillips, and Hopkins, who was the attorney of Mrs. Ray, but the agreement was not ratified by Airs. Phillips, and was not satisfactory to her, but Howell felt that he was a sort of stakeholder, and declined to pay Mrs. Phillips the money unless he was protected by the judgment of a court, and that the real contest, deducible from all the facts, is between Mrs. Ray, who wants the money, and Mrs. Phillips, who is not satisfied with the terms Howell had agreed upon. So that the real question in the case is, can Mrs. Phillips, the settlement not being consummated, and she being a mere volunteer, and having stipulated that she should be paid back if the case was not settled to her satisfaction, get the money back from Howell? The object was to settle the seduction suit, and no settlement of it has been made, why she should not be permitted to change her mind and get the money back? We know of no law to the contrary. Nobody has been hurt. The suit is still pending for seduction, and it seems to us that Mrs. Phillips could recover back from Howell any time before settlement, at her option, on notice to him, even if she had not prescribed the terms of the settle- ment. But she has prescribed those terms, and the terms are among others things to be "in every way to her satisfactory." They are not to her satisfactory, and therefore, by the express words of the con- tract, Howell is "to return said one thousand dollars to said Mrs. Phillips or her legal representative," and we cannot see why she can- not recover it. In this view of the case it is hardly necessary to consider the points made in the motion on the charge of the court, and its rulings on the evidence, the verdict being in our judgment contrary to the law and to the evidence, and the new trial being required on that ground in the motion. The judgnient being reversed, and a new trial awarded on this controlling ground, the presumption is that the city court will cor- rect its other errors, if any, so as to conform to the judgment of this court. We will add generally, however, that the criminal cases and How- ell's policy in postponing the settlement of the suit for seduction on account of those cases, cannot affect this case on this contract : nor can any previous understanding of his with Judge Plopkins not com- municated to ]\Irs. Phillips, and omitted by fraud, accident or mistake from the contract between Mrs. Phillips and Howell, in writing, alter the law springing from the writing. In our view, the case does not make Mr. Howell a stakeholder at all, but, for the purpose for which 3.1rs. Phillips turned over the 746 TERMINATION OF AGENCY. money to him, he was her agent, subject to her control, and to be governed by her will in regard to this money until the settlement had been actually made. As Mrs. Phillips was a volunteer, and no con- sideration whatever passed to her from Howell or others, it was in her power to revoke her authority to him, and to take her money back at any time before he had parted with it in accordance with the agreement. 15 Ga. 486, 489, 490; 55 Ga. 198; Code, §§ 2183, 2188. Judgment reversed.^ KOLB V. J. E. BENNETT LAND COMPANY. 1896. Supreme Court of Mississippi. 74 Miss. 567. Calhoun, Sp. J. — Mr. Kolb signed and delivered to Mr. Jackson, an agent of the land company, an instrument in writing in these words : "This is to certify that I am owner in fee of the following lands (describing them), and that I hereby authorize and appoint J. E. Bennett Land Company as my agents to sell said lands, to the exclusion of all others, with the express understanding that they shall have a commission of ten per cent, of the consideration, when cash payment is made, regardless of who effects the sale, the follow- ing price and terms to govern said sale : $2,425 cash ; terms easy. Deferred payments to draw interest at the rate of eight per cent, per annum, payable annually, all payments to be made on or before . Said sale to be effected within a period of January i, 1896. I further agree to assist said J. E. Bennett Land Company in selling said land at the price named above, and to execute deed and furnish abstract of title showing said land clear of all incumbrance, on demand and in compliance with the above terms. In witness whereof I have hereunto subscribed my name, this twelfth day of April, 1895." Before January i, 1896, and without notice to the land company, Kolb sold his lands himself for $2,000, one-third cash and the bal- ance on time. The land company sued him for 10 per cent, commis- sions on the amount paid and agreed to be paid Kolb by his vendee. The land company had taken steps to obtain purchasers, had adver- '^ Accord: Gilbert v. Holmes, 64 111. 548. "As to the agent, the principal's poivcr to revoke is one thing and his right to revoke, in breach of the terms of the contract, is another, and such revoca- tion may subject the principal to damages at the suit of the agent." Lamm, J., in Kilkpatrick v. Wiley, 197 Mo. 123, 167. "When, indeed, a person is employed as an agent, traveler or salesman, for no definite time, the law does not imply a hiring by the year, but at the will of both parties, and the principal has a right to terminate it at any time, and to discharge the agent from his service without notice." Sharswood, J., in Kirk V. Hartman, 63 Pa. St. 97, 105. .\t the trial written contr, ;m in th;. iiuin $242.5^^ that, before i pany, uui the jury The 6t pany ' atioi; : unaer > r to PI. I , sue for ti z sues Oi as if it were . An agent . proceed, ■ land - any -" comp;; Until it • nothing , that, by it way c>i i- the nTi);i- revu' l\ V I 1 1 "I 1 land, \vh. of the pr; him, he was her agent, sudj. 1))' lier will in regard to this n- lily made. As Mrs. Phillips ■ whatever passed to her from n' to revoke her atithoritv to him, V time befor ' ed with it m :. 15 Ga. 4.'- 5 Ga. 198; ( e versed.' i to be ■1 bad -' in- ,.a^ in monev KOLB V r LAND COMPANY i8c)6. Sri' iississippi. 74 Miss. 567. an agent (descri' anni^ ■ 1806. T further on demand and in c( whereof I have nerpn \pril, 1895." Before Januuiv 1, : Kolb sold his lands hi on time. The lane ; • >n the amount paid : ipany had tai cd and delivered to Mr. Jackson, instrument in writing in these m owner in fee of the following I hereby authorize and appoint 'Hts to sell said lands, to the ss understanding that they cent, of the consideration, when • who effects the sale, the f oUow- said sale: $2,425 cash; terms easy. •^' -it at the rate of eight per cent, per :ients to be made on or before 1 within a period of January i, ; J. E. Bennett Land Company in ' above, and to execute deed and lid land clear of all incumbrance, Ji the above terms. In witness d my name, this twelfth day of iiiout notice to the land company, $2,000, one-third cash and the bal- ned him for 10 per cent, conimis- ■d to be paid Kolb by hU vendee. to obtain purchp et- ..ut\i. bilbert ' 48. 10 the agent, . to revci " ■ ''ach ot ii.c l-'nijo v-i Lie contract, ' the principal to damasfes at the > •\^ is an agent, t; ferred at the mere wil benefit; the principal, agency whenc upon acting-. p.xV'.'i. rr tain'y •::;:: it. Mr. S the revoc.i' pubhcly 1 execulini', it can hard 74^ cit(.'-J i;; !iote 3. Nothing- is beiler pjlel. vith an interest" mea note i), or than that a commission ou! ■■''• '^ade, is not such ar ^''■• ioperty by the p: . illy well settled .; principal at hi, nent declare that .1 em on Agency, sec. .. propositions are removed '. on the ground of wan» ^^i" other. This express ing for the Supreme Luiv Court Rep., vol. 125, p. 3. In Walker v. Denison clauses : "And said atto^' proceeds derived expenses the' n in:.. . ,. .21^, ssion ou! if a siale to ♦: {ib., nuiv- • <' ^- sale of a revocation ?>)■ It n of such :iu .e made re, though V- !:he ap- e "exclusive" <:: ...;,;,,•• lotes 3 and 4 tht ' •/.-e atable territory. Ih sed ation. They can be n<) n by Chief Justice W. k- United States. U. S. bupreme .;lker V. Walker. ' the power contained these 'lO unat 1 nient." In Stensg:uard . eration of L. T. Si>-i. the property hereinaft Stensguard the exclusive, lowing property." It the missions. The agent '• vertising and by pers month after executing the land. Nevertheless, the ct mt to me for one-half of the net ales, after deducting all necessary power of attorney is not revocable, •" ^-ears from this date." its in a prescribed territory. The e oi revocation to the agent. The court • this, on the express reason that "there is part of Walker (the agent) in the instru- .43 Minn. 11, the power was, "In consid- • ? reeing to act as agent for the sale of ued, I have hereby given to said L. T. three months from date, the fol- ':s the lands and states the cora- ■ook steps to effect a sale, by al ion of purchasers. But, in one nt, the principal himself s(M the .aned the right of the nr;- : ,1 to sell, and said, speaking of the instrument, "This alone ^;v tract, for there was no mutuality of obligation. The p He agent) did not by this instrument obligate hiniself to !;.; ar.^1 therefore, the oth' not bound," and ■ ' .lonied rile '.■tfciit any competi ver, even for exi A said fiiiMier, as to the agent: He can recover nothing for wimt he did unless there was a complete contract, in which c.r.e. .if ;.nr;^e. he might have recovered damages for its breach." On this requirement of mutuality, we refer ai .. . ■ . i.^. ». ..ii- perial Life Ins. Co., 58 Fed. Rep. 847; Blackstone v. Buttermore, 53 Pa. St. 266; Wilcox V. Ewing, 141 U. S. 627 '^ cv. § 476; McGregor v. Gardner, 14 Iowa 326; C' /^ \la. 372. BY REVOCATION OF AUTHORITY. 749 It follows that the contract in the case at bar was w^ithout consid- eration, and did not prevent Kolb from dealing with his property as he saw fit. The court erred in giving the peremptory instruction for plaintiff and in refusing a peremptory instruction for defendant. Reversed and remanded.^ BROOKSHIRE v. BROOKSHIRE. 1847. Supreme Court of North Carolixa. 8 Ired. 74. Nash, J. — It is not denied by the plaintifif, that, in this case, it was within the power of the defendant to put an end to his agency, by revoking his authority. Indeed, this is a doctrine, so consonant with justice and common sense, that it requires no reasoning to prove it. But he contends, that it is a maxim of the common law, that every in- strument must be revoked by one of equal dignity. It is true an in- strument under seal cannot be released or discharged by an instru- ment not under seal or by parol, but we do not consider the rule as applicable to the revocation of powers of attorney, especially to such an one as we are now considering. The authority of an agent is con- ferred at the mere will of his principal and is to be executed for his benefit; the principal, therefore, has the right to put an end to the agency whenever he pleases, and the agent has no right to insist upon acting, when the confidence at first reposed in him is with- drawn. In this case, it was not necessary to enable the plaintifif to execute his agency, that his power should be under seal ; one by parol, or by writing of any kind, would have been sufficient ; it cer- tainly can not require more form to revoke the power than to create it. Mr. Story, in his treatise on agency, page 606, lays it down that the revocation of a power may be, by a direct and formal declaration publicly made known, or by an informal writing, or by parol; or it ^ "The mere fact that the power of attorney is itself declared irrevocable, does not prohibit its revocation." Baldwin, J., in MacGregor v. Gardner, 14 Iowa 326, 340. "The power of attorney also provides that it is irrevocable ; and although this is not conclusive, it nevertheless tends to prove that the parties under- stood that plaintiff (attorney) had an interest in the subject-matter upon which it was to operate." Vanclief, C, in Norton v. Whitehead, 84 Cal. 263, 270. The disposal by the principal of the subject-matter of the agency revokes the authority of the agency. Bissell v. Terry, 69 111. 184; Torre v. Thiele, 25 La. Ann. 418; Wilson v. Harris, 21 Mont. 374. "The assignment of the judgment, notice of which was given to the attorney, was undoubtedly a revocation of his authority to receive the proceeds of the execution. If his principal had parted with the right to control the judgment, it can hardly be questioned that the power of the attorney closed with it." Caton, C. J., in Trumbull v. Nicholson, 2"^ 111. 148, 151. 750 TERMINATION OF AGENCY. may be implied from circumstances, and he nowhere intimates, nor do any of the authorities we have looked into, that when the power is created by deed, it must be revoked by deed. And, as was before remarked, the nature of the connection between the principal and the agent seems to be at war with such a principle. It is stated by Mr. Story, in the same page, that an agency may be revoked by implica- tion, and all the text-writers lay down the same doctrine. Thus, if another agent is appointed to execute powers, previously intrusted to some other person, it is a revocation, in general, of the power of the latter. For this proposition, Mr. Story cites Copeland v. The Mercantile Insurance Company, 6 Pick. 198. In that case, it was decided that a power, given to one Pedrick to sell the interest of his principal in a vessel, was revoked by a subsequent letter of instruc- tion to him and the master to sell. As then, an agent may be ap- pointed by parol, and as the appointment of a subsequent agent su- persedes and revokes the powers previously granted to another, it follows, that the power of the latter, though created by deed, may be revoked by the principal, by parol. But the case in Pickering goes further. The case does not state, in so many words, that the power granted to Pedrick, was under seal, but the facts set forth in the case, show that was the fact; and, if so, is a direct authority in this case. This is the only point raised, in the plaintiff's bill of excep- tions, as to the judge's charge. AHERN V. BAKER. 1885. Supreme Court of Minnesota. 34 Minn. 98. Vanderburgh, J. — The defendant, on the ninth 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. He 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 effected a sale of the land, which was consum- mated by a conveyance. Subsequently, on the tenth day of Septem- ber, Fairchild, as agent for the 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 revoca- tion may be shown by the death of the principal, the destruction of the subject-matter, or the determination of his estate by a sale, as 1 ; (ju I 11. Pedrick I'tdrick That r' to r th£ ;asL- Hi;-:- [><■ d ^" ';■,-.- ■ i by deed, u d, tiie nature . -^ . ems to be at • such a - . - ■ , nx the same pa^v. ■;. u an agencj. iui-. • tio- and all the text-wnters lay down the sar; ■-■.!'■■ ■ ihr-r ;ji^ent i tlu' latter. For Mercaiitile Insur decided that a p ■ principal in a ve tion to him and in: bv Mr. Mr. Siorv cites - Pick. 198. In Pedrick to sell h% ■, =-ibsequent .>.,.. ..; ........ icn, an agent may be ap- .iiiiieni of a subsequent agent su- previously frrnnted to another, it r, thouc: :. But't Late, in so many words, that the power -.■:■ '.^ni r,nf the facts .set forth in the a direct authority in this BAKEl' Minn. 08. dill, on xnrj ;nrii!i oav oi Wheeler, as his ai^ent. ti to execi ■ on the - ':.e authority of ihe ageI^ i^''*r transaction naip^'''' die land, which " the tent^ ' and h'd real pvopcriy m coii' of the same. He in r .child to sell the iaiiance being limit. same day, Whe^: mated by a convc; .^1^ ber, Fairchild, as ag' the previous sale ma^ic l. iand to this plaintiff., vvli his part, brings this action ior iJainages ioi brt This is a case of special agency, and the^v; going to show that the plaintiff would be '.; revocation of the agency prior to the ^-^i' '■■' n may be shown by the death of tl "-■' - ---'^ "'e determinati . . , rea- ction of . sale, as BY REVOCATION OF AUTHORITY. 751 well as by express notice. The plaintiff had a right to employ sev- eral 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. I Pars. Cont. 71. Order affirmed, and case remanded.^ COPELAND v. MERCANTILE INSURANCE CO. 1828. Supreme Judicial Court of jNIassachusetts. 6 Pick. 198 Morton, J. — This is an action of assumpsit on a policy of insur- ance upon the brig Joseph for six months. The loss within that time by a peril insured against, and a reasonable notice and offer to abandon, are admitted. The plaintiff procured the insurance to be made in his own name, for whom it might concern, and now alleges that it was made for the account and benefit of himself and three others, each of whom he avers was owner of one-quarter part at the time of the loss as well as at the date of the policy. It is agreed by the defendants, that the several persons named in the declaration were interested in the manner alleged, at the time of effecting the insurance ; and the defense is, that the plaintiff and Porter & Greene had sold their parts of the vessel before the loss, and at that time had no insurable interest in her. Before the loss, John Pedrick, assuming to act as the attorney of the plaintiff and of Porter & Greene, executed a bill of sale purport- ing to convey their half of the vessel to Bright and Seaver, the own- ers of the other half. The first inquiry will be whether anything passed by this instrument. Pedrick's authority to convey must have been derived either from the power of attorney of the plaintiff, or from the letter of instructions from the plaintiff and Seaver to Pedrick and Bright of a subsequent date. There is no evidence in the case of any other authority from either of the former owners. Neither of these was executed by Porter & Greene, and the act of Pedrick was wholly unauthorized by them. That the power of attorney, while in force, authorized Pedrick to sell the plaintiff's quarter, cannot be questioned. But the letter of instructions subsequently written by the plaintiff and Seaver, gave to Pedrick and Bright a joint authority to sell the two quarters of the plaintiff and Seaver. This was inconsistent with the authority before given by the plaintiff to Pedrick alone, and when he received the instructions, he must have understood them as a substitute for ^Accord: Clark v. Miillenix, 11 Ind. 532. 752 TERMINATION OF AGENCY. the former authority. They must therefore be considered a revoca- tion of the power of attorney. The letter of instructions conveyed to Pedrick and Bright a joint authority, which neither of them separately could execute. Co. Litt. 112 b, i8i b; Paley on Principal & Ag-ent, 129; First Par. in Sulton V. Cole, 3 Pick. 244. The bill of sale was therefore unau- thorized. It is manifest, too, that even had there been sufficient authority in the agent, it was not properly executed. The deed ought to have been in the name of principal, instead of the agent. It is not now the deed of the principal. Paley, 131, 132, 133, and cases there cited. This bill of sale was therefore ineffectual to pass the property of the plaintiff and Porter & Greene ; unless power may be derived from a subsequent ratification. The instrument is not so far void as to be incapable of becoming effectual by the adoption of the prin- cipals and this ratification may be by implication as well as by a direct sanction. The receipt by the owner, of the purchase money, would necessarily imply a ratification of the sale ; but to be binding on the principal, the ratification must be made with a full knowledge of all the circumstances. Paley, 143, 144; Smith v. Cologan, 2 T. R. 189, note ; Fenn v. Harrison, 3 T. R. 757. In the case under consideration Pedrick communicated to the plaintiff the fact that he had sold, the price, and the names of pur- chasers, and other circumstances attending the sale. The plaintiff expressed no disapprobation, but in applying for a renewal of the policy for another term of six months, expressly stated that the brig was owned by Seaver and Bright. This could only have been true in consequence of his approbation of the sale by Pedrick. Also, upon the receipt of the bill drawn in payment for his quarter of the brig, he presented it for acceptance and demanded payment of it. These acts are sufficient evidence of a ratification on the part of the plaintiff. The ratification of the sale on the part of Porter & Greene does not so clearly appear. According to the testimony of Pedrick, the money received in part payment for their quarter was placed to their credit and settled in their account. From the language used in his deposition, it does not clearly appear that this settlement was made with the knowledge and assent of Porter & Greene. They did, how- ever, upon the receipt of the bill drawn for the remainder of the price for which their quarter was sold, present it for acceptance and for payment. These circumstances strongly tend to show, and per- haps will warrant the inference, that they assented to and confirmed the sale on their part. But still the question will recur, whether this sale passed anything to Bright and Seaver. Could Bright, being agent to sell, purchase either for himself or as agent for another ? It is a rule of law well settled, and founded in the clearest princi- ples of justice and sound policy, that the agent of the seller cannot l>econ:e tnc puicj;; tions are utterly i: Mar. Ins. Co . The attempt o. sel was a breach ot trust t. owners of their inter e^^i Seaver had Rl^•c'l ir. authorized act of Bri adopted ii cured insi it might concern, : the former polii" that row *v-i.- '^'' ■ isuraiic. r. as ii he had purchased. Fo the pariK ratify liis plaintiff and ' such waiver asonabl- joint pure, - . ...... The refu: ver to bill, pv ' to the ing ? TheL passed n*: duced no We an case, that brig, that for himseli never been so ers. The iiueic . :: loss that it \^. ^ ; ti- the first c Since ti and annu; the former autliunty. iliey inusl ilic tion of the power of attorney. The; letter of instructions conveyed t n 'N.-rity, which neither of them sej) 112 b, i8i b; Paley un Principal & .\ i.tou V. Cole, 3 Pick, 244. The-bill of y...-.- thorized. It is manifest, too, that even had autliority in the agent, it ought to have been in tb- It is not now the deci cases there cited. This bill of sale was the: the plaintiff and Pniit- ,'; from a subsequei' as to be incapable 1 cipals and this ratifi'. direct sanctio wo'jid neces*^ pia-.; properly c principal, 1 Paley, (iered a revoca- ' a joint )••- Co. Par, in M' unau- •ifficient . Iced ■,.,'nt. aid More nieiiectual to pass tiie pn "'reene; unless power may be ,- The instrument is not so far void effectual by the adoption of the prin- \x be by implication as well as by a ■e owner, of the purchase money, . ion of the sale ; but to be binding ' must be made yvith a full knowledge : . ^J% 144; Smith V. Cc-Iogan. 2 T. R. '• 757. . policy £(/■ was owm, in consequence of h: upon the receipt "'•' >' brig, be presents These acts are suiiici'. ■ plaintiff. The ratification of not so clearly appear, money received in pai credit and settled in t:. deposition, it does not ck with the knowledge and a ever, upon the receipt of price for which their quar for payment. These circ ' • will warrant the infer<;nce, tliai tlie) assented ■ale on their part. But still the question will r. sale passed anything to Bright and Seaver. agent to sell, purchase either for himself or as a It is a rule of law well settled, and founded '•' ^}\ts of justice and sound polic > > the price, and the names of pur- iitending the sale. The plaintiff n applying for a renewal of the hs, expressly stated that the brig This could only have been true ii of the sale by Pedrick. x\lso, in payment for his quarter of the .e and demanded payment of it. : ^^^ ideation on the part of the ic part of Porter & ' to the testimony of • their quarter was p! From the languag ar that this settlenie' orter & Greene. Tl draw'n for the rem.. ' ' . .ent it f - 'v tend t v., Demg -her? _. : princi- cuer cannot BY REVOCATION OF AUTHORITY. 753 become the purchaser or the agent of the purchaser. These rela- tions are utterly incompatible with each other. Paley, 32 ; Barker v. Mar. Ins. Co., 2 Mason 369; Church v. Mar. Ins. Co., i Mason 341. The attempt of Bright to become the purchaser of a part of the ves- sel was a breach of trust on his part, and could not divest the other owners of their interest. Seaver had given to Bright no power to purchase for him, but had authorized and instructed him with Pedrick to sell his part. This act of Bright was therefore wholly unauthorized. Has Seaver ever adopted it? After he received information of the purchase, he pro- cured insurance to be effected upon the vessel in his name for whom it might concern, for six months, to commence at the expiration of the former policy. It does not appear that he made a statement, or that any was made with his knowledge, of the names of the owners. This insurance might as well be procured by him, being owner of a quarter, as if he was owner of half. Nothing tending to show a ratification can be inferred from this circumstance. And the first opportunity which he has to act decisively upon the subject, he re- pudiates the contract. Before information of the loss of the vessel reached him, he refused to accept Bright's bills drawn in payment of the half which he had purchased. To hold this transfer to be valid, would be to compel him to become a purchaser without his consent. Notwithstanding this breach of confidence on the part of Bright, the parties interested might waive all objection to his conduct and ratify his contract. And we have already seen that the acts of the plaintiff and of Porter & Greene have a strong tendency to show such waiver and ratification. But these acts were founded upon a reasonable presumption, that Seaver and Bright were to become joint purchasers and jointly responsible for the purchase money. The refusal of Seaver to adopt the contract and to accept Bright's bill, produced such an entire change of circumstances as furnished to the plaintiff and to Porter & Greene sufficient reasons for disavow- ing a contract which perhaps before they had intended to adopt. The bill of sale purporting to be a joint contract between the parties passed no property to Bright and Seaver, or either of them, and pro- duced no change in the ownership of the vessel. We are therefore all of opinion, upon the facts disclosed in the case, that Pedrick had no authority to make sale of the half of the brig, that Bright had no legal right to become the purchaser, either for himself or for Seaver, and that these unauthorized acts have never been so ratified as to change the property of the former own- ers. The interest in the vessel remained the same at the time of the loss that it was at the date of the policy, and is correctly stated in the first count in the plaintiff's declaration. Since the commencement of the action Bright ha-^ disavowed it and annulled the authority of the plaintiff to prosecute it, so far 48 — Reinhard Cases. 754 TERMINATION OF AGENCY. as that authority was derived from him. He might well prohibit the plaintiff from maintaining the suit for his proportion of the loss ; but the policy was in the name of the plaintiff. The action is brought by him for the benefit of himself and the other owners ; and it would be manifestly unjust that one owner, having received payment for his part of the loss, having compromised with the underwriters, or being unwilling to litigate the claim, should have the power to defeat the legal rights of the others. Bright might well revoke the power which he had given to the plaintiff to prosecute for his benefit, but he could not annul the authority which the other owners had given to sue for them, much less the right which he had to maintain the action in his own name for his own benefit. We are therefore well satisfied, that the plaintiff is entitled to judgment for his own quarter and those of Seaver and Porter & Greene, and the verdict must be amended accordingly. After this opinion was delivered, Fletcher insisted that the declara- tion was insufficient. The plaintiff, being the agent in a joint con- tract for four, the action brought by him must be to enforce the whole contract. Besides, there is no count alleging the interest to be in three only, and the counts in which the whole interest is averred to be in some one of the three, are not supported by the evidence. But Per Curiam. — We were inclined to think the first count suffi- cient to sustain a judgment for three-quarters of the sum insured ; that as it stated correctly the interest of all the parties for whose benefit the suit was originally brought, the revocation by Bright of the authority to prosecute any further on his behalf, ought not to be allowed to prejudice the other parties concerned; but it is not necessary to determine this, as we are of opinion that judgment may be rendered for the plaintiff upon the other counts.^ "^ Accord: Morgan v. Stell, s Binn. (Pa.) 305. In Rowe v. Rand, 11 1 Ind. 206, it was held that when two principals jointly appoint an agent to take charge of some matter in which they are jointly in- terested, and a severance of their joint interests afterwards occurs, the sever- ance revokes the agency. Revocation by letter is complete when the letter is received by the agent and not when it was mailed. Robertson v. Cloud, 47 Miss. 208. In Rees v. Fellow, 97 Fed. Rep. 167, a letter revoking an agent's authority was addressed to the agent's place of business and delivered there. The agent was absent at the time, and did not receive the letter till several weeks later. It was held that the agency was revoked from the date of the delivery of the letter. See discussion of this case in 13 Harv. Law Rev. 523. of a contract ft ,'<: came the : the term v. agreed to work ex He was al"^" ' ■ '■■ and relial sohciting v:- •!•: to be on thf- }■.■■•. As CO 35 P^'' after rha- and m r. were i the dulies of the i March, 1872, at \\1 in IlUnois. nr.'i f.:ii!. ana / there* for the di: on acconi ' able to o the 24th ■■ the St. Lr sanctionc ' and about its busines-^ n entirely to tl 24th of April, It was an uii was tried bef^ found for the ; eral term this appeal to thi? There are ]> 754 ;ibit the 'le. loss ; as that authority was denved from hi. plaintiti" from maintaining the suit io l>ut the policy was in the name of the pi ri is brought ijv him for the benefit of himself and th. nd it would be manifestly unjust that one owner, havi nent for his part of the loss, having compromi.sed wm: iters, or being unwilling to litigate the claim, should ha\ io defeat the legal rights of the ot' 'gT'it might well ; > 'wer which he had given to tl i to prosecute fu, , bu.f he could not annul the a. vhich the other own.. iven to sue for them, much It .;ht which he had to ' t'lc action in his own name lor h.is own benefit. We are there satisfied, that the plaintiff !•- • ' • ''^d to judgment for his own ., ■.. . and those of Seaver an*: & Greene, and the verdict must be amended accor^^ elivered, Fletcher insisted that the declara- ihe plaintiff, being the agent in a joint con- vtion brought by him must be to enforce the les. there is no count alleging the interest to be « oimts in which the whole interest is averred ree, are not supported by the evidence. • -e inclined to think the first count suffi- • r three-quarters of the sum insured; f of all the parties for whose = ;, the revocation by Bright of rther on his behalf, ought not to " parties concerned; but it is not are of opinion that judgment may -ii the other --."-'ii^ '' After this opir tion was ins" ' tract for f*^' who in t; to In the authority lo be allowed to pr< . necessary to determir. be rendered for the pi 'Pa.) 305. - held that when two principals jointly ■ic matter in which they are jointly, in- oint interests afterwards occurs, the sever- ^ Accord: Morgan v. ' In Rowe v. Rand, ii] appoint an agent to tak; terested, and a severanc ance revokes the agency. Revocation by letter is c^.ii.v/.n.te when the letter is receive and not when it was mailed. Robertson v. Cloud, 47 Miss. 208 In Rees v. Fellow, 97 Fed. R'.-p. 167, a letter revoking ;ii was addressed to the agent's plact" of business and deliver, was absent at the time, and '" ' ceive the letter till It was held that the agency ^ J from the date of BY REVOCATION OF AUTHORITY. 755 LEWIS V. ATLAS MUTUAL LIFE INS. CO. 1876. Supreme Court of Missouri. 6i "Slo. 534. Wagner, J. — This was an action to recover damages for breach of a contract of agency. By virtue of the contract the plaintiff be- came the general agent of the defendant for the state of Illinois, for the term of five years. By the provisions of the contract the plaintiff agreed to work exclusively 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 loth of each month, at the time of his monthly reports. As compensation for his services and expenditures, he was to have 35 per cent, on first premiums, prior to July i, 1870, and 30 per cent, after that, 10 per cent, on term insurance and paid up policies, and 10 per cent, on all renewals. These premiums on renewals were to be paid to him and his heirs after the expiration of the five years, provided he continue 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 ]\Iarch, 1872, at which time the defendant discontinued its business in Illinois, and failed and refused to permit plaintiff to further prose- cute 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 un- able 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 conclusively, 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 ]\Iutual 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 gen- eral term this judgment was reversed, and plaintiff prosecuted his appeal to this court. There are but two questions arising on the record of any import- 756 TERMINATION OF AGENCY. ance, and the first is, whether the insolvency and inabihty of the com- pany 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. It appeared at the trial that the plaintiff was only permitted to con- duct his agency about half the time agreed upon by the stipulation. During that time he procured a large number of policies and the an- nual 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 com- pany for the term of five years, and had he neglected or failed, he would have been liable in damages. If he was bound for that length of time, it necessarily follows that the company must also have been bound ; for mutuality 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 obli- gation, that there should be a corresponding and correlative obliga- tion on the other party, such corresponding and correlative obliga- tion 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 v. Cole, i Wm. Saund. 319; Churchward v. The Queen, 6 B. & S. 807; Black v. Woodrow, 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 ex- emption upon the happening of the contingency.^ * * * Judgment affirmed.^ ^ A portion of the opinion dealing with the measure of damages is omitted. ^ Regarding renunciation of the agency by the agent see Stoddart v. Key, 62 How. Pr. (N. Y.) 137. FELLOWS AND ANOTl! LKKC!Ki Llj.' -l The quest' fact. In t. n^ert ri ''■ i. V <„v.\,i ! ' ' s are a were under steamers its close in *b been . board to pa- had i- were - and tlv ants, a the spi i ployed ->i special au 'o 'the X during th;! plies, ft".1 the CO propo:-'. vi-;v,:.i:s an to boar . such c take the pay tii' ••R^MT>T ' the first :.-. V, ..., u>.vi ,,.^ arry on its business, is ai act; and the '-':-■. :~\, by its ins its Ijusiness, was iiO cx-cuse .•iff. It appeared at the trial ' duct his agency about !.; During that time he < nual renewals were si It is now argiied c- the contract sued on, company, for the pe . texpressly bind itself to C' that its. inability to act an constituted no breach. J covenant on the ]• '•' * ' definite time. B . ._ ci>ni- iches of - The :• to A'ith ge number < : ;.'i- ry valuable. le defendant, tha- > >f as merely appointed cars, and, as the con; business for that length oi utuc, the whole stipulation on its part, there was no positive and direct * • ,., .iiy to carry on the business for any agreed to act exclusively for the com- md had he neglected or failed, he If he was bound for that" length • . must also have h' ■: iity of the agreen.i: i;:. Happens that contrncts on their face and by :•■ r 1 I be obligatory on one party only ; but in lat it was the intention of the parties, ich one party assumed an express obli- corresponding and correlative obliga- • " ind correlative oLl' ,; by the party bin , v-oiiespoiuiuig act being done or t; tion by the latter to do or allow y for the completion of the .... (Pordage v. Cole, i Wm. Queen, 6 B. & S. 807; Black v •laintiff bound hir -"* '' , tor the period gallon, ' lion on tho oiLici pa tion will be implied, himself can only be allowed by the other ' to be done the act - contract, will be ne Saund. 319; Church Woodrow, 39 Md. 194., his exclusive services to there was a correlativ the defendant, to giv> execute the terms of the contract, inis was manin of the parties. The defendant's insolvency or inal' excuse for its breach of the contract. Had it desir. from liability in such an event, it should n- - '^^■• emption upon the happening of the contiii ' ■ ' . I ' affirmed " '•■on uc.iljiig \Mti-! ine iTi' ->n of the agency by the BY REVOCATION OF AUTHORITY. 757 FELLOWS AND ANOTHER V. HARTFORD & NEW YORK STEAMBOAT CO. 1871. Supreme Court OF Errors OF Connecticut. 38 Conn. 197. Seymour, J. — This is an action of assumpsit on the common counts, and comes before us by reservation for our advice on a very detailed statement of facts found by the court of common pleas. The questions discussed at the bar are mixed questions of law and fact. In order to a full understanding of the case the entire state- ment of facts is needed, and is as follows : The plaintiffs are a co-partnership, doing business in Hartford, and sold the goods described in their bill of particulars, which were delivered by the plaintiffs on board the boats of the defendants, and were used thereon. The defendants were a corporation, organized under a charter of the state of Connecticut, and engaged in running steamers which carried passengers and freight between New York and Hartford. Two of the steamers so used were severallv named "The City of Hartford," and "The State of New York." 'The de- fendants had been so engaged in business for several years, and em- ploying said boats (among others which they were accustomed to run on said route) each season from the opening of navigation till its close in the fall. Prior to the spring of 1868 the defendants had been accustomed to furnish their own provisions and supplies, to board their own officers and crews on said boats, and supply meals to passengers thereon, and had required and employed stewards, or persons acting in that capacity, on each of them. Up to this time the president of the company, or some person specially authorized b}' him, or under his direction, had purchased the greater part of the provisions used on said boats, but the stevv'ards had been allowed to purchase from time to time such supplies as were deficient, in the name of the defendants and on their credit, and the bills so made had always been paid or allowed by the defend- ants, and usually settled for at the end of the trip, or soon after. In the spring of 1867, and during that season, the defendants had em- ployed Mr. Knox as keeper of their store of provisions, and he by special authority purchased a large portion of the supplies for pro- visioning the boats, some of them of the plaintiffs, who charged them to "the New York Steamboat Company." And from time to time during that season the plaintiffs presented their bills for such sup- plies, endorsed by Knox as correct, for payment to the treasurer of the company, who paid them. In the spring of 1868 the defendants proposed to make a change, by ceasing to furnish their own pro- visions and supplies for their boats, and to contract with some party to board the officers and crew of each boat at a certain price per week, such contractor also to provide meals and supplies for passengers, and take the pay therefor, and the defendants advertised in newspapers in 758 TERMINATION OF AGENCY. Hartford for written proposals for such contracts. None of the writ- ten proposals received were accepted, but the defendants entered into a contract with U. T. Smith, of Hartford, to board the officers of the ''State of New York" at $7 per week, and the crew at $6 per week, Smith to have the right to supply the passengers with meals, and to have the use of the bar on the boat, he furnishing his own supplies and provisions. The defendants also made a contract with one Silloway, of Hartford, to board the officers and crew of the "City of Hartford," on the same terms as Smith had contracted for the "State of New York." Smith and Silloway each went on their re- spective boats, and accompanied them on their several trips, dis- charging the duties which had previously been performed by the stewards of the boats, and severally purchased all the supplies, and procured them to be delivered upon their respective boats. Smith had, for several years prior to entering into the aforesaid contract for provisioning the boat, been steward of the "State of New York," and had while so acting made purchases of the plaintiffs of goods to be used on said boat, upon the credit of the defendants, which were paid for by the defendants, as aforesaid. Silloway had never been in the employ of the defendants in any capacity. During the season of 1868 Smith and Silloway presented to the defendants their bills for the board of the officers and men, which were paid in full, weekly. During the boating season of 1868 Smith procured of the plaintiffs goods for which there remains due a balance of $13, which were by his directions, delivered on board the "State of New York," and used thereon, and were charged by direction of Smith on the plaintiffs' books to the "State of New York." And Silloway made similar purchases of the plaintiffs, which were by his direction charged to the steamer "City of Hartford," and de- livered upon said boat, and for which there is now a balance due. It appeared that the plaintiffs were not aware of the contracts that had been made between the defendants and Smith and Silloway, and charged the goods as directed supposing they were selling to the Hartford and New York Steamboat Company, and would not have given credit to either Smith or Silloway, who were pecuniarily irre- sponsible. The plaintiffs had, the year previous, by direction of the stewards or other persons purchasing for the boats, charged the goods to the "New York Steamboat Co." The defendants did not give special notice to the plaintiffs of any change in their mode of victualling their boats, nor did they advertise the same in the news- papers, or otherwise, except the before-mentioned advertisement for proposals. The defendants gave no express authority to either Sillo- way or Smith to contract any bills in their name, and had no knowl- edge that they had done so until after the bills had been contracted. We think the defendants are liable for the goods purchased by Smith. It appears that he had been their steward, and had on their credit purchased goods of the plaintiffs to be used on the boat, and The L ihorizea to one wbe'-' ties, unl defendiiK differer :c: I CO: liav auti ^inv' an 'i ■ trii- ace; L. .: . years, drawal mereh ' Ev- cepted notice short ci We n ^oods i; curred.- go. a r' 758 TERMINATION OF AGENCY. Hartford for written proposals for such co ten Is received were accepted, but ' a c«; ith U. T. Smith, of Hartford, "Stale ui New York" at $7 per week, an^ Smith to have the right to supply the pas- have the use of the bar >m the boat, he fumi,- and provisions. The defendants also made „ Silloway, of Hartford, to board the officers and • of Hartford," on the t^arae terms as Smith had c.»i.: Smith and Silloway each wei! ■, them on their sevc the writ- "State of New York/ spective boats, and charging the duties- stewards of the boati>, procured them to hie dc- treviously been perfwi lly purchased all the suj[i .pon their respective boat had, for several ye<'irs prior to entering into the aforesaid contra' for provisior^ and had w] in of $!■■ Nfc Smitii on uie ;: Silloway mad^e his direction charged t livered upon said boat, It appeared that the pla; had been made betwe • charged the goods . Hartford* and New given credit to eithc sponsible. The plair, stewards or other {_ goods, to the "New Yoi give special notice to tl: victualling their boats, v papers, or otherwise, exccj n steward of the "State of New York,' ie purchases of the plaintiffs of gooc lie credit of the defendants, whic^ a'i aforesaid. Silloway had neve Us in any capacity. During y presented to the defendants ■he oriicers and men, which were paid •oating season of 1868 Smith procured >>hich there remains due a balance of iions, delivered on board the "State of m. and were charged by direction of . the "State of New York." And. of the plaintiffs, which were by imer "'City of Hartford," and de- svhich there is now a balance due. re not aware of the contracts that :lants and Smith and Silloway, and apposing they were selling to the oat Company, and would not have Uoway, who were pecuniarily irre- tiic year previous, by di' irchasing for the boats. oat Co." The defendanis did not !s of any change in their mode of ey advertise the same in the news- !c before-mentioned adv^-*' - "^ *" '•• proposals. The defendants gave no express authority \ way or Smith to contract any bills in their name, and edge that they had done so until after the bills had b< We think the defendants are liable for i\u Smith. It appears that he had been their stew . ' ftdit purchased goods of the plaintiffs to be use^ t^oat, and BY REVOCATION OF AUTHORITY. 759 that the defendants had paid for the goods thus purchased, without objection. The goods, for the price of which this action is brought, were charged to the defendants, the plaintiffs supposing they were seUing them to the defendants, and credit would not have been given to Smith, he being pecuniarily irresponsible. The defendants then had treated Smith as their servant, and represented him as au- thorized to make purchases on their credit. The case is the common one where the liability of the master is established by the authori- ties, unless it can in some important particular be distinguished. The defendants rely on several circumstances as sufficient to create a difference ; before considering which we will briefly notice some principles and rules which have been adopted in this class of cases. It is well settled that where a general authority has once been conferred, its revocation takes effect as to third persons only after it becomes known to them, unless indeed the principal has done his full duty in making it known ; and where an authority is revoked, it is in general the duty of the principal to notify those persons who have had dealings with the agent as such; the rules on this subject being substantially the same as those relating to the dissolution of a co-partnership, and the power of a partner after dissolution to bind the firm. Story Agency. ^§ 470, 471. i Parsons Contracts, 59, 60. Now in regard to Smith, it appears that he for several seasons was authorized to bind the defendants by contracts with the plaintiffs similar to that on which this suit is brought, and that the defend- ants have done nothing to notify the public in general, or these plaintiffs in particular, of any revocation of authority, and that the plaintiffs were not in fact aware of a revocation. The defendants, however insist that there were circumstances which ought to have put the plaintiffs on inquiry, and it is certainly true that the manner of dealing under which the account in suit accrued was somewhat different from what it had been in previous years. But we see nothing at all equivalent to notice of the with- drawal of Smith's authority. The advertisement relied upon was merely for proposals for letting the stewardship out upon contract. Even if the plaintiffs had seen the advertisement, they could not know that any proposals were made, or that if made they were ac- cepted or acted upon. The advertisement was not intended as a notice of authority withdrawn, and in our judgment it falls far short of such a notice as was necessary.^ :;: * * We advise that judgment be rendered for the plaintiffs for the goods delivered to Smith. In this opinion the other judges con- curred. - ^ A portion of the opinion dealing with the liability of the defendants for the goods purchased by Silloway is omitted. ""A person who has dealt with an agent in a matter within his authority, has a right to assume, if not otherwise informed, that the authority continues, and when the dealing continues after the authority is revoked, the principal is 760 TERMINATION OF AGENCY. Section 3. — By Operation of Law. DAVIS, ADMINISTRATOR OF WARDNER v. THE WINDSOR SAVINGS BANK. 1873. Supreme Court of Vermont, 46 Vt. 728. PiERPONT, Ch. J. — The only question presented by the bill of ex- ceptions is, whether the defendant bank was justified in paying- the money which it held to the credit of the deceased, to Mrs. Dudley, his sister, who deposited the money as his agent, such payment being made after the revocation of her agency by the death of her princi- pal, said bank having no knowledge of such death, and paid the money in good faith. That the death of the principal terminates the agency, all the authorities agree ; but the effect of such death upon the acts of those who in good faith deal with the agent without knowledge of the death, is a subject upon which there is some di- versity of decision. But the weight of authority seems to be decid- edly in favor of the principle, that the death of the principal instantly terminates the power of the agent, and that all dealings with the agent subsequent to that event, are void and of no effect, even though the parties were ignorant of that fact. Kent lays down the rule, that "the authority of an agent determines by the death of his principal. By the civil law, the acts of an agent done bona fide after the death of the principal, and before notice of his death, are valid and binding on his representatives. But this equitable principle does not prevail in the English law, and the death of the principal is an instantaneous revocation of the authority of the agent, unless the power be coupled with an interest." 2 Kent Com. 646. Story lays down the same doctrine, and says : "As the act of the agent must, if done at all, be done in the name of the principal, it is impossible that it can prop- erly be done, since a dead man can do no act, and we have already seen that every authority executed for another person, presupposes that the party could at the time, by his personal execution of it, have made the act valid ;" and numerous authorities, both English and American, are referred to in support of the position. This principle was expressly held in Bank v. The Estate of Leavenworth, 28 Vt. 209, and also in Mich. Ins. Co. v. Leavenworth, 30 Vt. 11. In the latter case, Judge Bennett, in delivering the opinion, says : "Though it may be true that when a power is revoked by the act of the party, notice may be necessary, yet when revoked by his death, the revocation at once takes effect ; and if an act is subsequently done under the power, though without notice of the death of the party, nevertheless bound, unless notice of the revocation is brought home to the other party." Andrews, J., in McNeilly v. Continental Life Ins. Co., 66 N. Y. 23, 28. of the rule, but I c ■i.luiiJJg tuvj ; Indeed it i^ is no prii'' terest cot- discussed made up. Judgmen, r>:\r !.M-'. betwe Field (I VI est' priricn have I they 1' loriou Thu>, iciiigau Weber TERMIN Section 3 — By Operation of Law XDMINISTRATOK Ut ^^^^NI)soR saving; ]'iERPoi\i\ L-if. j. — i ■ 'On preseutCi oeption.s is, whether the ;i;.nk was jusir , mouev which it held to tiic credit of the deceased, tc. his sister, who depositee! made after the revocati pal, said bank havii money in good fail! agency, all the ; the acts of th'. knowledge versitv <"■'' • termmaits ■ •• T? his agent, such p... iicy by the death of ' ■ of such death, and pc'u \ i of the principal terminates tlu: but the effect of such death upon jaith deal with the agent without ■)iect upon- which there is some di 't" of authority seems to. be decid death of the principal instantly )Nd that all dealings with the agent i ^nd of no effect, even though the " lown the rule, that "the ill of his principal. By 'c done bona fide after the death of 'f his death, are valid and binding equitable principle does not prevail - .1, . --nncipal is an instantaneou"^ nless the power be couple'. . u^D. Story lays down the same >i the agent must, if done at all. ^ is impossible that it can io no act, and. we have a iii< the 1... on his in the t-i;^;l -^M j.'W , anf revocation of the author with an intercj-' doctrine, and sa done in the name oi the pri erly be done, .since a dead n' s'.en that every authority executed for another person, presu; that the party could at the time, by his personal execution of it, ..av made the act valid ;" and numerous authorities, both Enjrlish an Vnuricnn, ,ire referred + i)Ort of the position. Thi- was oxiuessly held in 11 ^ he Estate of Leavenwor. 209, and also in Mich. Ins. avenworth, 30 Vt. u. latter case, Judge Benni: Jelivering the opinion, '!'hough it may be true that when a power is revoked by the lUe party, notice may be necessary, yet when revoked i'- '"'^ the revocation at once takes effect ; and if an act is sub- under the power, though without notice of the deati r,evertheles.s bound, unless notice of the revocation is V other party.'" Andrews, J., in McNeilly v. Continental BY OPERATION OF LAW. 761 the act is void." ]^Iany other cases might be referred to in support of the rule, but I do not deem it necessary.^ A different doctrine was held in Cassidy v. McKenzie, 4 Watts & Sergt. 2?>2 ; but as is said in a note to 2 Kent Com. 873, "It is sub- stituting the rule of the civil for the rule of the common law." Indeed it is difficult to see how there can be an agent when there is no principal. The question whether in this case there was an in- terest coupled with the agency, and some other questions that were discussed in the argument, do not arise upon the exceptions as made up. Judgment reversed and cause remanded. CASSIDY V. AI'KENZIE. 1842. Supreme Court of Pennsylvania. 4 W. & S. 282. Rogers, J.- — * * =:= But, finally, it is contended that a pay- ment, after the death of the principal, is not good. It is conceded that the death of the principal is ipso facto a revocation of a letter of attorney. But does it avoid all acts of the attorney intermediate between the death of the principal and notice of it? In Salte v. Field (5 Term. 214), Mr. Justice Buller observes: "It has been questioned with respect to an agent acting under a power of at- torney, whether acts done by him before he knows of the revocation of his warrant, are good against the principal ; and it seems that the principal in such case could not avoid the acts of his agent, done bona ftde, if they were to his disadvantage, though he might consent to avoid such as were for his benefit." And in Hazard v. Treadwell (Str. 506) ; 12 Mod. 346, it is ruled, that the credit arising from an ostensible employment continues at least with regard to those who have been accustomed to deal on the faith of that employment until they have notice of its being at an end, or till its termination is no- torious. And these are principles founded on most obvious justice. Thus, if a man is the notorious agent for another to collect debts, ^ "No principle is better settled than that the powers of an agent cease on the death of his principal. If an act of agency be done subsequent to the decease of the principal, though his death be unknown to the agent, the act is void." M'Lean, J., in Gait v. Galloway, 4 Pet. (U. S.) 332, 344. "The reason of that rule is, that upon the death of the principal his estate belongs to his heirs, devisees, or creditors ; and their rights cannot be im- paired by any act of one who was not their agent, and who had no control over their property." Isham, J., in ^lichigan State Bank v. Estate of Leaven- worth, 28 Vt. 209, 216. "There can be no agent where there is no principal." Danforth, J., in Weber v. Bridgman, 113 N. Y. 600, 605. 'A portion of the opinion is omitted. 762 TERMINATION OF AGENCY. it is but reasonable that debtors should be protected in payments to the agent until they are informed that the agency has terminated. But this, it is said, is only true of an agency terminated by express revocation, and does not hold, of an implied revocation by the death of the principal. It would puzzle the most acute man to give any reason why it should be a mispayment when revoked by death, and a good payment when expressly revoked by the party in his lifetime. In Watson v. King (4 Camp. 272), however, it is ruled: "That a power of attorney, though coupled with an interest, is instantly revoked by the death of the grantor ; and an act afterwards bona fide done under it by the grantee before notice of the death of the grantor is a nullity. Lord EUenborough says, a power coupled with an in- terest cannot be revoked by the person granting it ; but it is neces- sarily revoked by his death. How can a valid act be done in the name of a dead man?" It will be observed that the reason is purely tech- nical. How can a valid act be done in the name of a dead man? And it might with as much propriety be asked, how can a valid act be done by an agent whose authority is revoked by his principal ? But, notwithstanding the opinion thus confidently expressed, it is now an admitted exception that where the power or authority is coupled with an interest in the thing actually vested in the agent, then an act done by him after the death of his principal is good. And the reason given by Chief Justice Marshall in Hunt v. Rous- manier (8 Wheat. 174), is, that the agent, having the legal title in the property, is capable of transferring it in his own name, not- withstanding the death of the principal ; and the death of the prin- cipal has no operation upon his act. The power given by the prin- cipal is, under such circumstances, rather an assent or agreement that the agent may transfer the property vested in him, free from all equities of the principal, than strictly a power to transfer. The whole reasoning of the court, in Hunt v. Rousmanier, shows their anxiety to rid themselves of the absurdity into which a strict adher- ence to the principle that death is a revocation of a power, would lead them. Why not place it on the rational ground, that although the conveyance would be bad at. law, yet it would be good in equity when made bona fide without any notice whatever of the death of the principal. But be this as it may, the principle does not apply here. There is no act to be done. This money has been paid by the debtor, and received by the agent in good faith ; and why should it not be good when the authority is revoked by death, as it con- fessedly is when expressly revoked by the principal in his lifetime? Here the precise point is, whether a payment to an agent when the parties are ignorant of the death is a good payment. In addition to the case in Campbell before cited, the same judge, Lord Ellen- borough, had decided in 5 Esp. 117, the general question that a pay- ment after the death of principal is not good. Thus, a payment of sailor's wages to a person having a power of attorney to receive them, has been lield of payment. If, by i eral proposition that a revocation of the p . . . . ^ it. But if it is intended to sa\ was no r--— -f death, ■ mitted i- from ir In ad' : Tate V. given I) time. . he . received th<: '' • .1 the testate) -> inclined to thi; ;l ir.,.ji tviji- made to «" But, i — and tr. ample, has it be^ [i I : •:- 1 i (. \ L;c:iiion of author ' have occurred" and it woi formed that thi; of his principal i ant, and of which i.. that till- Li.Tt 'v i-v .. prii, soU froi rec to-! cip„ laiow In the of t!- h.- ■ coi ' trial. a. IS but reasonable that debtors slioul' The agent until they are informed tha^ But this, it is said, is only true of an < revocation, and does not hold, of an inij ... of the principal. It would puzzle the mos lents to iinated. ;ith inv hy it should .ivment when la V\ atson v. King a power of attorney, revoked by the death ■ done under it by ^^'-i:' is a nullity. Lori' terest cannot be -> sarily revoked by of a dead man?" it . nical. How can a v And it might wit' be loric b\ an ■?. : iiia.! the cipal is, under such that the agent may i all equities of the pr whole reasoning of t anxiety to rid themst ence to the principle lead them. Why- not the conveyance wouL when made bona Me •<.'.. the principal. But be thi? is no act to ■ tcceived by it not be good when the ■ "- nient when v .ncl ■ oked by the -. i_4 Caiijp. 2y2), however, ii : "ihat thoT.gh ry-npled with an intv nstantly : ; and an act aft*. . ,';./(' notice of the dealt; '.ii.r ^ys, a power coupled ti- ■ rson granting it; bui n i.^ ^.^ces- an a valid act be done in the name ed that the reason is purely tech- ne in the name of a dead man? oty be asked, how can a valid act ! ty is revoked by his principal ? e opinion thus confidently expressed, it is ,M.ion that where the power or authority is .est in the thing actually vested in the agent, . ' .r the death of his principal is good. f ruf;tice Marshall in Hunt v. Rous- ■rcnt. having the legal title in . ig it in his own name, not- principal; and the death of the prin- 15 act. The power given by the prin- mces, rather an assent or agreemenv nroperty vested in him, free fror ■ strictly a power to transfer. ! :• Munt V. Rousmanier, shows tlv_ surdit^' into which a strict nd' • ation of a powe _:. I .lal ground, thai at iaw, yet it would be g 'ui. any notice whatever of n.v .,<- l. as it may, the principle does not aiS' Tliis money has ' ! in good faith : . is revoked by dcaLJi, ^ (1 by the princip'i' "n '"■"-" fessedly is when express; Here the precise point is, whether a payment parties are ignorant of the death is a good ' - the case in Campbell before cited, the borough, had decided in 5 Esp. 117, the g- '^■«<^nt after the death of principal is not r wages to a person having a BY OPERATION OF LAW. 763 them, has been held void when the principal was dead at the time of payment. If, by this case, it is meant merely to decide the gen- eral proposition that by operation of law the death of the principal is a revocation of the powers of attorney, no objection can be taken to it. But if it is intended to say that this principle applies where there was no notice of death, or opportunity of notice, I must be per- mitted to dissent from it. In addition, it is contrary to the opinion of Lord Loughborough in Tate V. Hilbert (2 Yez. Jun.), where, on a question whether a check given by a dying person to a relation, but not presented in his life- time, could be enforced as donatio causa mortis against the executor, he said, if the donee had received the money upon the check imme- diately after the death of the testator, and before the cashier was apprised of it, he was inclined to think no court would have taken it from him. And what would he have said if the attempt had been made to subject the banker, when he was ignorant of the death? But, if this doctrine applies, why does it not apply to the case of factors, foreign or domestic, to commission merchants, to super- cargoes, and masters of ships, and to various other agencies which the necessities of commerce may require. In the case of a foreign factor, for example, has it been supposed that his acts, after this im- plied revocation of authority are void ? Cases of this kind must often have occurred and it would astonish the mercantile world to be in- formed that the factor was liable on a contract made in the name of his principal because he was dead, a fact of which he was ignor- ant, and of which he could not by any possibility be informed, or that the merchant who was trusting his goods on the credit of the principal was to be cast on him who may have been of doubtful solvency, for payment. Can it be, that a payment made to an agent from a foreign country, and from one of our cities to the Western States, employed for the special purpose of collecting debts, is void because his principal may have died the very day before the actual receipt of the money? That a payment may be good to-day or bad to-morrow from the accidental circumstance of the death of the prin- cipal, which he did not know, and which by no possibility could he know? It would be unjust to the agent and unjust to the debtor. In the civil law, the acts of the agent, done bona fide in ignorance of the death of his principal, are held valid and binding upon the heirs of the latter. The same rule holds in the Scottish law, and I cannot believe the common law is so unreasonable, notwithstanding the doubts expressed by Chancellor Kent in the second volume of his Commentaries 646. These principles dispose of all that will be material on another trial. Judgment reversed, and a venire de novo awarded.^ * "Where the act, notwithstanding the death of the principal, can and may be 764 TERMINATION OF AGENCY. CARRIGER'S ADMINISTRATOR v. WHITTINGTON'S ADMINISTR.\TOR. 1858. Supreme Court of Missouri. 26 Mo. 311. This was an action by the administrator of Christian Carriger to recover certain sums of money alleged to have been received by William W. Whittington, defendant's intestate, as the agent of said Carriger. Evidence was introduced that in 1846 said Carriger had a pre-emption claim ; that he went to California leaving Whitting- ton his agent ; that he received the rents accruing, and also sold the claim to one De Witt ; that he received in 1847 fifty dollars for rent of this land; in 1848 twenty dollars; that in 1850 he received from De Witt five hundred dollars, the purchase money agreed to be paid for the pre-emption claim ; that Carriger died in 1846 on the way to California. It did not appear that his death was known to Whit- tington and De Witt at the time of the sale. The court instructed the jury as follows: "If the jury believe from the evidence that William Whittington, as the agent of Christian Carriger, received of Nefif, in the spring of 1847, fifty dollars, and in the spring of 1848, of P'atton, twenty dollars, and in the spring of 1850, of De Witt, five hundred dollars, with interest, for the price of Carriger's farm, and that the plaintifif, Charles F. Holly, as public adminis- trator of Andrew county, has charge of said Carriger's estate, they will find for the plaintiff the amount so received by said Whit- tington." The court refused the following instructions, among others, asked by defendant: "i. Unless the jury believe from the evidence that Christian Carriger was alive at the time William Whittington made the sale and received the money in evidence, they will find for de- done in the name of the agent, there seems to be a sound reason why his death should not be deemed to be a positive revocation under all circumstances, and that a subsequent execution of it may be valid." Story on Agency, § 495. This statement has the basis of decision in Dick v. Page, 17 Mo. 234, and Lenz v. Brown, 41 Wis. 172. See the able and elaborate discussion of the various views and authorities on the subject of revocation by death in Ish v. Crane, 8 Ohio St. 520, and 13 Ohio St. 574. On page 540 of 8 Ohio St. Sutlifif, J., says : "Now upon what principle does the obligation, imposed by the acts of the agent after his au- thority has terminated, really rest? It seems to me the true answer is, public policy. The great and practical purposes and interests of trade and com- merce, and the imperious necessity of confidence in the social and commer- cial relations of men, require that an agency, when constituted, should con- tinue to be duly accredited. To secure this confidence, and consequent facility and aid to the purposes and interests of commerce, it is admitted that an agency, in cases of actual revocation, is still to be regarded as continuing, in such cases as the present, toward third persons, until actual or implied notice of the revocation. And I admit that I can perceive no reason why the rule should be held differently in cases of revocation by mere operation of law." Quoted with approval in Deweese v. Muff, 57 Neb. 17, and Meinhardt v. New- man, 71 Neb. 532. See note in 12 Harv. Law Rev. 563. money was derr 6. If tn ized Wil ; the land n;e: evidence, t said Whi^-''' •^"' further a. , if he wa- 'me of said - the :' ' does not ^r»pear in of tt :ie pr-e-c deal i'dpal, C c that at tl his hein, equitabli^ merce av: no c prin sen I. 170. CARRIGliR'S AD. N'S ;^-;S. Supreme Coi^i^t ny ■Missout 1 action ' r. r • . er certain sums ' \\ i;'-p.n \V Whittingl. ience w." ti jM t citii^iin-'ii claim; t, ton his agent; that he • claim to one De W of this land ■ in t^ De Witt fi- for ilie prr nia. it ,...,,^,i-.,a an'] T" the jury <• William \ .;.r Neff, i. -,v;'l u geU Lo lia\ ' ■ s intestate, : ! that in' 184/ ,,;. ("■-jlifornia ..,; ruing, a I e ■i.U in 1847 fifty aou:. it that in 1850 he rec -Jt rchase money agreed to be paid . iger died in 1846 on the way to iiat his death was known to Whit- e of the sale. The court instructed Liry believe from the evidence that ;ent of Christian Carriger, received fifty dollars, and in the spring of ■ the spring of 1850, of De for the price of Carriger's Holly, as public adminis- ■ said Ci^rri-'^r'- <:>i:i'v. lliev by ucieaaaut ■ Christian Can he able ar d elaborate > ■■'■■ct of revr-r-^''^^ .,, :-. pi-.. *li/- - If,, 'n -, .. On . -^ ill, pa; 1 ■ :' ' . 'I : ■ oa^ ncci fpfi lire ag instructions, among others, asked believe from th ' ' e that 'ime Willi ^'n Wi made evidenci iil lind for de . to be a soLiuU ioason why his death , •cation under all circumstances, and " ' " Storj' on Agency, § 495- i'hj.s Page, 17 Mo. 234, and Lenz •■■. lous views and authoriti - ,. . - .aae, 8 Ohi.^ '"- ='■,■ ■-,,■ , Suthtl, J., says: .■< *h- aclr- uf the a- : )^C 111 li' when r. ocation by n'- ■ ■ ^ - *W 57 Ncl:.. ;-. ■ 532. See note in la Harv. Law : BY OPERATION OF LAW. 765 fendant. 2. If the said William Whittington was the agent of Chris- tian Carriger, deceased, and received the money in evidence as such agent, then the jury will find for the defendant, unless the plaintiff has proved that said money was demanded before the commence- ment of this suit. 5. If more than five years have elapsed since said money was received and before suit, they will find for defendant. 6. If the jury find from the evidence that Carriger merely author- ized William W. Whittington to sell for him, the said Carriger, the land mentioned in evidence, then so soon as said Carriger died said Whittington had no further authority to act as such agent ; and if he was so dead at the time of said sale then the jury will find for the defendant." Napton, J. — It does not appear in this case whether at the time of the sale of the pre-emption by Whittington to De Witt the death of the principal, Carriger, was known to the parties or not. It is inferable that at the time of the payment of the purchase money to the agent, in 1850, Carriger's death was known to both parties. It is probable that when the contract was made in 1847, Carriger's death, which took place in the previous summer on his way to California, was not known to either. Although by the common law an agency terminated by the death of the principal, and all subsequent acts of the agent cease to bind his heirs or executors, yet judicial tribunals, especially those having equitable jurisdiction, have, for the convenience of trade and com- merce and in accordance with the principals of natural justice, very much modified this doctrine. When the death of the principal is un- known to both parties at the time the contract is made, so that there is no binding contract on him or his representatives, the agent is not personally responsible. (Smout v. Ilbery, 10 Mees. & Wels. i ; Story on Agency, § 265; Blader v. Free, 9 Barn. & Cress. 167.) In Cas- siday v. McKenzie, 4 Watts & Serg. 282, the supreme court of Pennsylvania declared in good sense and sound reason there was no difference between a revocation of an agency by the act of the principal and 2i. revocation by his death, which was the act of God, and that in either case, where the parties dealing were acting in good faith and ignorant of the revocation, the principal or his repre- sentatives ought to be bound. In neither case did the court suppose the agent would be ; and they repudiate the opinion of Lord Ellen- borough, in Watson v. King, 4 Camp. 5 Esp. 117, and of Lord Loughborough, in Tate v. Hilbert, 2 Ves. Jr. — , where a power of attorney, though coupled with an interest, was held to be in- stantly revoked by the death of the grantor.^ * * * ^he other judges concurring, judgment affirmed. - * A portion of the opinion is omitted. ^ Death of the agent terminates the agency. Adriance v. Rutherford, 57 Mich. 170. In Jackson Insurance Co. v. Partee, 9 Heisk. (Tenn.) 296, a factor trans- 766 TERMINATION OF AGENCY. DAVIS V. LANE. 1839. Superior Court of New Hampshire. 10 N. H. 156. Assumpsit, upon a promissor)- note. It appeared in evidence that Foss, the plaintiff's intestate, for some time previous to his death, which happened in October, 1833, held a note against the defendant, for $50 ; and on the day of his decease, and when he was entirely senseless, and no hopes were entertained of his recovery, one Jeremiah Prescott, to whom Foss was indebted in the sum of about $46, came, in company with the plaintiff, to the house of Foss ; and, after some conversation, it was suggested to the wife of Foss, that she had better give up to Pres- cott the note her husband had against the defendant, and pay the debt due him, which after some hesitation she concluded to do ; upon which the amount due Prescott was deducted from the amount of the note against the defendant, and a note for $4 or $5 was given by Prescott, payable to Foss, as a balance. The defendant afterwards paid Prescott the amount of his note. This suit was brought to re- cover the amount of the note, on the ground that the wife of Foss had no authority to deliver up the note to Prescott and have it ap- plied in the manner before mentioned. There was evidence, on the part of the defendant, tending to show that for several years previous to this transaction Foss's wife had been his general agent for transacting all his business, and that she was authorized to settle this concern in the manner she did ; but the plaintiff insisted that if she had been agent, the situation of Foss at the time of the transaction, which was well known to her and the others concerned, operated in law as a revocation of her agency. The court charged the jury, that if they were satisfied that the wife had been the general agent of her husband for several years previous, the situation in which he was placed when said business was transacted, although well known to her and Prescott, did not operate in law as a revocation of her agency. The jury returned a verdict for the defendant, and the plaintiff moved for a new trial. Parker, C. J. — There is no pretense that a wife, as such, has any authority to dispose of the husband's goods, or adjust his affairs, by reason of his incapacity to transact business. But it is contended, in this case, that the wife having had a gen- eral power to transact business for her husband previous to his ill- ness, nothing but an express revocation of that power, or some oc- mitted goods of his principal to a sub-agent for sale. The factor died, and his administrator collected from the sub-agent the proceeds from the sale of the goods. It was held that the death of the factor terminated his agency; hence, the administrator in receiving the proceeds did not receive them as ad- ministrator, but by the act of collection made himself agent for the principal. CurrtiKT wiuc.d bankruptcy, will terminate her authorit husband, and in question, n inca})ab]e of oi 'jr , and iin< to Prescott. i' ued in thai The autlr.i the authorit V, ■ may be e^ 1 it. Hnd no: v€r is C( :th an in ■ of tiic Green R. anier's s. c. 8 on Al tion : v-rs V. King, 4 vaUJi... jy i.ptcy, on h-> pr;^t. nT';cr?t 16 East R in not. 1" iin the nver to con^. ., \'ermore on Age^' end is put to the ; oneration of law tr to the ci no author; ^en OS are uik cited or found which will di present ca We art Mon, ho\' at the auth where th( act of Pr case or ix- iient of nil j to act for satisfaclor , les. til^ - 274; 2 l^rvcniivrt Ti~ n rpvoca- An authority to do poses a power in tin The act to be dor princip' ' '' which IS Ills ; But revocable, present, :r, in fact lyir t ' t on U act b anoth' \\ \ : \ ■' irv NEW HaMP^I. iSIT, UpC :i. ti i'eared in cvi. sume tiine previous U' heUl a note against t! decease, and when h^ entertained of his reccver; was indebted in the svnn ( plaintiff, to the house of F suggested to the . cort tlie note her 'ue him, 1 the anv.' 3iot€ against the ■ •Si, Llie pla- Tor !iich happenc. - \^3, and ui! liis CSS, and - '"o •remiah Prescott, to ...L $46, came, in compai.v and, after some conversation that she had better give up 1 against the defendant, and hesitation she conckided to do ; ufX/.* was deducted from the amount of the and a note for $4 or $5 was given by . , as a balance. The defendant afterwards :uit of his note. This suit was brought to re- " • "^n the ground that the wife of Foss ihe note to Prescott and have it ap- ■ •d. I f the defendant, tending to show lu this transaction Foss's w^ife had ^acting all his business, and that she oncern in the manner she did ; but had been agent, the situation of Foss which was well known to her and the s a revocation of her agency. ;l if they were satisfied that the >t her husband for several years • was placed when said biTsiness Mas transacted, althougn well known to her and Prescott, did not operate in law as a rev- 1 '''''' ' ^ler agency. The jury 1,. i- ,, 1 1 verdict for the defend laintifT moved for a Parker, C. J. — Ther-,- ■ > ■ j'ltense that a wife, as sv 1 authority to dispose of the fiusband's goods, or adjust h i. , reason of his incapacity to business. But it is contended, in ; that the wife havinp" had n gen- eral power to transact bu,- her husband pr( 11- iiC':->. niching but an exprt- .ation of that po^A ., oc- was ; tlie pi.^Miwii II -1---. i .11.1. at the time of the transact;; others concerned, ■ The court chai , wife had been thi previous, the situ. '■3 of his principal to a sub-agent for sale. Tl. atiminisLrator collected from the sub-agent the proc' •he eroods. It was held that the death of the factor the administrator in receiving the proceeds did rator, but by the act of collection made himself nctr.T and his of BY OPERATION OF LAW. '/6'J currence which divests and transmits the property, as death or bankruptcy, will terminate her authority to act as the agent of her husband, and that she therefore might well dispose of the note in question, notwithstanding her husband was utterly insensible and incapable of any volition whatever ; and this well known to her, and to Prescott, to whom she passed it, and notwithstanding he contin- ued in that state until his decease. The authorities show that the death of the constituent terminates the authority, unless the power is coupled with an interest so that it may be executed in the name of the agent : Harper v. Little, 2 Green R. 18; Hunt v. Rousmanier's Admr., 2 Mason's R. 244; s. c. 8 Wheat. R. 174; Waters v. King, 4 Camp. 274; 2 Livermore on Agency 302. So bankruptcy, on his part, operates as a revoca- tion : Parker v. Smith, 16 East R. 386. So marriage of a single woman terminates a power to confess a judgment in her behalf; Anon, I Salk. 399 ; 2 Livermore on Agency 307. In all these cases an end is put to the power of the principal to act, and, moreover, the operation of law transfers the estate, upon which the power might operate to the custody and control of others. In this latter respect these cases are unlike the one before us, and no authority has been cited or found which will directly settle the present case. We are of opinion, however, that the authority of the agent, where the agency is revocable, must cease or be suspended by an act of Providence depriving the constituent of all mind and ability to act for himself, and that this doctrine can be sustained by very satisfactory principles. An authority to do an act for and in the name of another presup- poses a power in the individual to do the act himself, if present. The act to be done is not the act of the agent, but the act of the principal, and the agent can do no act in the name of the principal which the principal might not himself do, if he were personally present. The principal is present by his representative, and the making or execution of the contract, or acknowledgment of a deed, is his act or acknowledgment. But it would be preposterous, where the power is in its nature revocable, to hold that the principal was in contemplation of law, present, making a contract, or acknowledging a deed, when he was in fact lying insensible upon his death bed, and this fact well known to those who undertook to act with and for him. The act done by the agent, under a revocable power, implies the existence of volition on the part of the principal. He makes the contract — he does the act. It is done through the more active instrumentality of another, but the latter represents his person and uses his name. Farther, upon the constitution of an agent or attorney to act for another, where the authority is not coupled with an interest and not irrevocable, there exists at all times a right of supervision in the 768 TERMINATION OF AGENCY. principal and power to terminate the authority of the agent at the pleasure of the principal. The law secures to the principal the right of judging how long he will be represented by the agent and suffer him to act in his name. So long as, having the power, he does not exercise the will to revoke, the authority continues. When, then, an act of Providence deprives the principal of the power to exercise any judgment or will on the subject, the authority of the agent to act should thereby be suspended for the time being; otherwise the right of the agent would be continued beyond the period when all evidence that the principal chose to continue the au- thority had ceased ; for after the principal was deprived of the power to exercise any will upon the subject, there could be no assent, or acquiescence, or evidence of any kind to show that he consented that the agency should continue to exist. And, moreover, a confirmed insanity would render wholly irrevocable an authority, which, by the original nature of its constitution, it was to be in the power of the principal at any time to revoke. It is for these reasons that we are of opinion that the insanity of the principal, or his incapacity to exercise any volition upon the sub- ject, by reason of an entire loss of mental power, operates as a revocation, or suspension for the time being, of the authority of an agent acting under a revocable power. If, on the recovery of the principal, he manifests no will to terminate the authority, it may be considered as a mere suspension. And his assent to acts done dur- ing the suspension may be inferred from his forbearing to express dissent when they came to his knowledge : i Livermore on Agency, 300; Cairnes v. Bleecker. The act of the agent in the execution of the power, however, may not in all cases be avoided on account of the incapacity. If the prin- cipal has enabled the agent to hold himself out as having authority, by a written letter of attorney, or by a previous employment, and the incapacity of the principal is not known to those who deal with the agent, within the scope of the authority he appears to possess, the transactions may be held valid and binding upon the principal. Such case forms an exception to the rule, and the prin- cipal and those claiming under him may be precluded from set- ting up his insanity as a revocation, because he had given the agent power to hold himself out as having authority and because the other party had acted upon the faith of it and in ignorance of any termina- tion of it. They would be so precluded in the case of an express revocation, which was unknown to the other party : 2 Livermore on ;Agency 310; Salte v. Field, 5 D. & E. 215; 2 Greenleaf's R. 18. And a revocation by operation of law, on account of the insanity of the principal, cannot have a greater effect than the express revoca- tion of the party himself. But this case is not of that character. Here there was full knowledge of the situation of the plaintiff's intestate, by Prescott, when he received the note. where the power security, or < v ;> i"erms or n;;U:' ■: ir; :ind as a ]->':'V\cr ■ 4 Camp. ^7-? i, n. -i. ;•;-- - Such a ovnver ojw hv the pr continue J (2 Live the case. Some > to, v.' UT ■ne in his name, not exist where t in such case be , { the act, on in!e power. If, on the recovery of the j ro terminate the authority, it may be •n. And his assent to acts done dur- rred from his forbearing to express disi:u.:u V, nowledge: i Livermore on Agency, 300; Caii The act ot the agent m ition of the power, however, may not in all cases be avoided mt of the incapacity. If the prin- cipal has enabled the agent to hold himself out as having authority, by a written letter of attorney, or by a previous employment, and the incapacity of the principal is not known to those who deal with the agent, within the scope of the authority he appears to possess, the transactions rnay be held valid and binding upon the principal. Suclij case : exception to the rule, and the prin- cipal and those claiii: . r "him may be precluded f^nm set ting up his insanity as a revocation, because he had giv. ■. i-t power to hold himself out as having authority and becai:^. . party had acted upon the faith of it and in ignorance of any tion of it. They would be so precluded in the case of an revocation, which was unknown to the other party : 2 Liver ■ .Vgency 310; Salte v. Field. 5 D. & E. 215: 2 G * And a revocation by operation of law, on account ( the principal, cannot have a greater effect than tion of the party himself. But this case is ri' TIere there was full knowledge of the situaticm of the plaintiff's • * fate, by Prescott, when he rece'^"'^ ^^^^ '^' ■ ' BY OPERATION OF LAW. 769 The principle that insanity operates as a revocation cannot apply where the power is coupled with an interest, so that it can be exer- cised in the name of the agent, for such case does not presuppose any volition of the principal at the time, or require any act to be done in his name, and is not revoked by his death. Whether it is applicable to the case of a power which is part of a security, or executed for a valuable consideration, and thus is by its terms or nature irrevocable, and which seems to be regarded in Eng- land as a power coupled with an interest (lo Barn. & Cres. 731; 4 Camp. 272), may be a question of more doubt: 2 Mason 249. Such a power could not be revoked by the principal, if his sanity was continued (2 Livermore 308), and any volition of his could not alter the case. Some of the reasons, therefore, V\'hich have been adverted to, would not exist in a case of that character. But a power of that kind is to be executed in the name of the principal ; and it was held, in Hunt v. Rousmanier's Administrator, before cited, that the death of the principal operates as a revocation of it, for the reason that after that event no act can be done in his name, as if he himself per- formed it. This reason would not exist where he was still living; and perhaps he and others might in such case be precluded from set- ting up his insanity in avoidance of the act, on the ground that he would have had no right to interfere if sane, and had therefore no right to insist on his insanity as an objection. It has been held, in England, that the insanity of one partner does not operate as a dissolution of the partnership, but that object must be attained through a court of equity : Sayer v. Bennet, cited 2 Ves. & Bea. 303; Gow on Part. (272). But the soundness of the prin- ciple may perhaps be doubted : Waters v. Taylor, 2 Ves. & Bea. 303; Groswold V. Waddington, 15 Johns. R. 57, 82. It certainly could not have been applied here prior to 1832, as we had before that time no court through whose decree in equity a dissolution could have been effected. Admitting it to be correct in its fullest extent, however, it would not affect this case, for each partner has an in- terest, by the partnership contract, and the interest of one partner would not be terminated by the insanity of another. In making a sale or contract he does not act as agent, but in his own right, and the partnership name may be used by one without any supposition that another acts individually or has any knowledge or volition in relation to the matter. But so long as the partnership continues, the act of the one binds the others ; and as it is, in its effect, the act of all the partners, it may deserve great consideration whether the insanity of one, in the absence of any stipulation to the contrary, does not operate ipso facto as a dissolution of the partnership itself. The result of the view we have taken is that the wife of the in- testate had at the time no authority to dispose of this note to Pres- cott, and that he acquired no title to it, and had no right to receive 49 — Reixhard Cases. 770 TERMINATION OF AGENCY. ■ • the money. We have already held, on a former case, in this suit, that a payment to him, by the defendant, under such circumstances, could not operate to discharge the note: 8 N. H. 224. The in- structions to the jury were erroneous, but there is no agreement in the case by which we are authorized to enter judgment for the plain- tiff, and the action must, therefore, be transferred to the Common Pleas for a new trial, if there is anything further in controversy be- tween the parties.^ Section 4. — Irrevocable Agencies. HUNT V. ROUSMANIER'S ADMINISTRATORS. 1823. Supreme Court of the United States. 8 Wheat. 174. Appeal from the Circuit Court of Rhode Island. The original bill, filed by the appellant, Hunt, stated that Lewis Rousmanier, the intestate of the defendants, applied to the plaintiff in January, 1820, for the loan of $1,450, 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, as collateral security for the repayment of the money. The sum requested was lent; and on the nth of January, the said Rousmanier executed two notes for the amount ; and on the 15th of the same month, he executed a power of attorney, authoriz- ing 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 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 there- ^ Accord: Drew v. Nunn, L. R. 4 Q. B. D. 661. "Notwithstanding the declaration of Chancellor Kent (2 Kent Com. 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 prin- cipal operates, per se, as a revocation or suspension 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 become coupled with an interest; or where a consideration of value is given by a third person, trusting to an apparent authority in, ignorance of the principal's incapacity." Depue, J., in M. & W. Refining Co. v. McMahon, 38 N. J. L. 536, 546. Bankruptcy of the agent terminates the agency. Hudson v. Granger, 5 B. & A. 27; Audenried v. Betteley, 8 Allen (Mass.) 302. Regarding the effect of the bankruptcy of the principal see Ex parte Snow- ball, L. R. 7 Ch. App. 534. the said I said notes turn ot ti^ t, tir as lUji The b- of ■' t'f hi. that ;. aim, by the defendar cu'cumstances, ■ ' . '- - ■,- note. 'Hie in- IS. but ! ■ent in ^11 vv >- • ■ ~>]n- ction tr^ ■ in tor a new tri Lhing ti ']<■ n.-iriics.' Section 4. — Irrevocable Ag'^ TiT-VT V t:>OT'' DMTNTSTRATORS. The or said vessel, or ited that I^^wis ■iicd to the plaintiff to .cive, in addition >r a mc in the brig - i.^r:,' s, ...u :-^,;.i;nent of the >n the nth of January, w IK.'.: :.u the amount; and on the cuted a power of attorney, authoriz- xecute a bill of sale of three-fourths o any oflier person ; and in the event t, to collect the money h the ve ocable in terms, or if not so, is dc a letter of attorney depends, from its natur. ' : i .i making it, and may, in general, be recalled .... ' ' himself for a consideration, in terms, or by the not to change his will, the law will not per- Rousmanier, therefore, couid not, during his • own, have revoked tliis letter of attorney. But etticacy after his death" We think it does not. settled, that a power ;ey, though irrevocable durmg \h> of the party, becnnn _ by his death. This principle -ed in Littleton (§ 66), by Lord liis commentary u.i .^ .., ;,ection (52b), and in Willes' Repo;... note, and 565). The legal reason of the rule is a plain one 'ed on thi iption that the substitute acts by v rity of 1 al, existing at the time the act is , 1 which he n^ ute his authority, Co. 766. Ir; ■■■■: it was resolved as attorney to do any act, he ought t' ; t'ority." The reason of this res ularly, pass out of the person • ■iveyance in his own name; and er for him, when it could not, in juveyance in the name of a person 1 be a manifest absurdity. i a power must be executed in • of :.. , .,- - .. - :-, 't- trine founded on the natu _ transaction, is most - fted in the power itself, its usual language is, that the dl do that which he is empowered to do in tlie name of He is put in the place and stead of his principal, ^^ name. This accustomo.' obsen'ed i" the i onsideration. Hunt is c the . and it . make, and execute, a r. of - e name • -r. Now, as an authont\ pursued, m order to maKe the act of the substitute the act 01 the principal, it is necessary that this bill of sale should be iv' ^y- ;;.' if^ of Rousmanier; and it would be a gross absurdity that • purport to be executed by him, even by attorney, after the attorney is in the place of the principal, capable alo: vith the givj'ii^ ii:. auiii('.b u; m. If a power b ■■interest/' it survive ^ .giving it, and ma his death. As this proposition is laid down toe y in the books to be controverted, it becomes necessary t what is meant by the expression, "a power coupled with ^ ;;.'' Is it ' ia the subject on which the power b: ^ ■ " ' •' '" IRREVOCABLE AGENCIES. 773 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 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 w^ould seem to import this meaning. "A 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 under- stand by the word "interest," an interest in that which is to be pro- duced 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 vested 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 principal, 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 necessarily 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 thie contract on which B ad- vances his money as if the power had been made to himself. If this were the true exposition of the term, then a power to A to sell for the use of B, inserted in a conveyance to A, of the thing to be sold. 774 TERMINATION OF AGENCY. 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 accom- panied 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 cre- ated 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 executed after the death of the testator. The law, in allowing a testamentary disposi- tion of property, not only permits a will to be considered as a con- veyance, 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 meantime, descends to the heir. The power is, necessarily, to be executed after the death of the per- son who makes it, and cannot exist during his life. It is the inten- tion 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 de- vise 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 irrev- ocable by Rousmanier himself, expired on his death.^ * * * 2 ^A portion of the opinion not dealing with the question of irrevocability is omitted. The court reversed the decree of the circuit court, and remanded the cause to that court, with directions to permit the defendants to withdraw their demurrer, and to answer the bill of the complainants. " "A power coupled with an interest cannot be revoked by the person grant- ing it; but it is necessarily revoked by his death. How can a valid act be done in the name of a dead man?" Lord Ellenborough in Watson v. King, 4 Camp. 272, 274. Followed in Frederick's Appeal, 52 Pa. St. 338. "Where an authority or power is given for a valuable consideration, or is coupled with an interest, or is part of a security for the payment of money or the performance of some other lawful act, it is irrevocable, whether so ex- pressed upon its face or not." Searls, C, in Frink v. Roe, 70 Cal. 296, 309. See Terwilliger v. Ontario, etc., R. R. Co., 149 N. Y. 86. iJ.. 1 866. SuPR! Appeal from Hartk)' ■{-■'■ Hann ley .' • and povv- "the- se:- est. re 11 ■ lo i att-:. a.lM rr.R:\iTNATifv>: or Atn-:N\-\ V'. >.iiu'.i Tiui ixr ci power Cl.lUp■e^J U'uii ;•. could not be exercised after the deaths vver to A to sell and' pay a debt X< J with any conveyance which mis,: v> him to make the conveyance, aud to p^ after the vivifying principle of the power juenny, ; while :.;ccom- would 1 1 him, ■.,xtinct. But every day's experience teaches us that the law is not as the first case put would suppose. \^" benefit of B, engrafted on at any time, and is not aft'e' ated it. It is, then, a power "1 to whom it iS glvcti ' that a power to conveyed to A, r "} the death of the ■■ coupled with an inters lias no interest in its iiw ex the His ' r is coupled with riv. ^-'^-rest in the thing which en. i to execute it in his own d is, therefore, not dependent on the life of the person who . it. The general rule, that a power of attorney, though irrevocable by the party duri- (>v the circuiri tion that it shall be ex by the person to whom it and tlie purchaser holds ) given in a will is cons: benefit of the person i vise or bequest to that pei It is, then, deemed perf< is a naked power, not con ocable bv Rousmaniet- ' extinguished by his death, is not affected ;stameiitary powers are executed after the I ne law, in allowing a testamentary disposi- !ilv permits a will to be considered as a con- ition which is not allowed to deeds _; the life of the person who executes i may take effect at a future time or n the meantime, descends to the heir. e executed after the death of the per- exist during his life. It is the inten- '^^ter his death. The conveyance made .]iven, takes effect by virtue of the will, title under it. Every case of a power art of chancery as a trust, for the t^.t DOwer is made, and a? a de- ..... w,o power givci, ... ..... . ..v an interest, which, though irrev- ired on, his death.' -' '' " ' the question ai i- circuit court, aiui ,,> /i.r-^ndants to v.. ^A portion of thr - omitted. The court ' - •■ to that court, ■. .. . ...... ■ ... ; '■rer, and to answer the bill of the .\ power coupled with an interest c sd by the ing it; but it is necessarily revoked by nis death. Ho.w can a done in the name of a dead mar;'" I>ord Ellcnborough in W-i 4 Camp. 272, 274. Followed it- "s Appeal, 52 Pa. Si "Where an authority or p'.^. en for a valuahle coupled with an interest, or is p,iu ^1 a security for or the performance of some other lawful act, it is irr. pressed upon its face or not.'* Searls, C, in Friiik v. K"- See Terwilliger v. Ontario, etc., R, R. Co., 149 N. Y. 86 persi>n V'llid grant- act be King, inoiiey so ex- IRREVOCABLE AGENCIES. 775 HARTLEY and MINOR'S APPEAL. 1866. Supreme Court of Pennsylvania. 53 Pa. St. 212. Appeal from the Orphans' Court of Greene County, by Samuel Hartley and John Minor. Hannah D. Gallion, on the 30th day of June, 1866, made to Hart- ley and Minor a power of attorney to collect and receive all money and property coming to her as heir of John Douglass, deceased, with power to convey her interest in the real estate of the decedent, etc., "the said Hartley and Minor to receive as compensation for their services herein one-half of the net proceeds of my interest in said estate which may be collected or received by them as my attorneys, after paying all costs and expenses, they to receive no further com- pensation for any service they may render or expenses they may in- cur or pay as my attorneys." On the 20th of July, 1866, she gave another power of attorney to Livingston Howland for the same purpose, and in it revoked that to Hartley and Minor. On the 29th of September, 1866, Hartley and Minor, as attorneys of Hannah Gallion, petitioned the Orphans' Court of Greene county for a citation to the administrator, etc., of Douglass to settle his account. This was objected to because of the power of attorney to Howland. On this ground the court refused to award the citation, and dismissed the petition. Hartley and Minor appealed from this decree, and assigned it for error. Thompson, J. — There was no error committed by the court below in holding the power of attorney of Hannah Gallion to the appellants to be revocable. It was an ordinary agency, constituted by letter of attorney, to act for her to enforce a settlement of his accounts by the administrator of her father's estate, in which she was interested, and to collect any moneys or property that might belong, or be coming to her. For these services the attorneys were to have one-half of the net proceeds of what they might receive or recover for her. The plaintiffs in error suppose that this clause rendered the power ir- revocable by their principal, under the idea that it was a power cou- pled with an interest. This was a mistake, as all the authorities show. To impart an irrevocable quality to a power of attorney in the ab- sence of any express stipulation, and as the result of legal principles alone, there must co-exist with the power an interest in the thing or estate to be disposed of or managed under the power. An instance of frequent occurrence in practice may be given of the assignment of vessels at sea, with a power to sell for the benefit of the holder of the power, or of anybodv else who may have advanced money and who it was agreed should be secured in that way. So where securities have been transferred with a power to sell, and generally, I presume, in all cases of property pledged for the security of money where there is an accompanying authority to sell to reimburse the lender J'/d TERAIINATION OF AGENCY. or creditor. In Hunt v. Rousmanier, 8 Wheat. 174, this doctrine is clearly and fully elucidated in the opinion of Marshall, C. J. In Ban- croft V. Ashhurst, 2 Grant 513, a case tried at nisi priiis before me, at which my brethren sat as adsessors, there is a pretty full examina- tion of the question herein involved, and all the authorities referred to, and the conclusion is fully in accordance with Hunt v. Rous- manier, and sustains the above view of a power coupled with an interest. In the case in hand the power and the interest could not co-exist. The interest the appellants would have would be in the net pro- ceeds collected under the power, and the exercise of the power to collect the proceeds would ipso facto extinguish it entirely, or so far as exercised. Hence the appellants' interest would properly begin when the power ended. This distinction is noticed in Hunt v. Rous- manier ; but neither by this test, nor any other, was the power of attorney in question irrevocable, and this judgment must be affirmed. Judgment affirmed.^ KNAPP V. ALVORD. 1843. Court of Chancery of New York. 10 Paige 205. This case came before the court upon exceptions to the report of a master to whom it was referred to take and state the account of the defendant as the administratrix of W. Alvord, deceased, and to report the amount due to the complainant and to the other cred- itors of the decedent ; and the only question was as to the right of J. Meads to retain, out of the estate, of the decedent, the amount of two notes upon which he was endorser, the estate of the decedent being insufficient to pay all his debts. The master decided in favor of the right of Meads to retain, and allowed to the administratrix the amount retained by Meads out of the proceeds of the property of the decedent, and which had been so retained with her assent. Rathbone and Smith, two of the creditors who had come in and proved their debts under the decree, excepted to that part of the report. The facts on which the question arose were as follows : The decedent, W. Alvord, for some time previous to his death, carried on the business of a cabinet-maker in the city of Albany. In the fall of 1837, Alvord be- ing in bad health. Meads, who had formerly been his co-partner, consented to assist him gratuitously in the care and management of his business. In the latter part of November in that year, the de- cedent having determined to spend the winter at the south, on ac- ^ The authority of an agent to whom a negotiable promissory note has been endorsed for collection is not revoked by the death of the owner, as the en- dorsement passes the legal title to the note. Moore v. Hall, 48 Mich. 143. IRREVOCABLE AGENCIES. '/JJ count of his health, applied to Meads to take the general charge of his business during his absence; to which Meads consented. At that time a note of $i,8oo, drawn by Alvord and endorsed by Whit- ney and Van Vechten as his sureties, was held by the Mechanics' & Farmers' Bank, and was payable December 9. Alvord also owed another note to H. Rector, for $428.34, endorsed by Meads, and which was payable December 12, 1837. To provide for the pay- ment of these notes, or others w4iich might be given in renewal thereof, and to enable Meads the better to manage his business dur- ing his anticipated absence, Alvord executed an instrument, bearing date November 22, 1837, constituting j\Ieads his agent and attorney to carry on, conduct, and manage his business as a cabinet-maker, in his absence ; to purchase and procure stock and materials ; to hire, pay and discharge workmen ; to collect and receive moneys, etc., and to apply the same in his said business ; or to the support of the de- cedent's family, or to the payment or security of his debts and lia- bilities. That instrument or power also contained the following clause : "And I hereby expressly authorize and empower the said Meads to sell, assign, transfer, and dispose of, at any time, or in any manner which he may deem necessary or advisable, all or any furniture, stock, property, notes, claims, or other effects whatsoever, which now are or may at any time be in his hands, belonging to me, and to apply the same and the proceeds thereof to the security or payment in whole or in part, of a certain note for about the sum of $1,800, drawn by me and endorsed by S. Whitney and J. T. B. Van Vechten, and discounted at the Mechanics' & Farmers' Bank ; or any note or notes which may be given in lieu or renewal thereof or of any part thereof ; and to the payment or security of any note or notes drawn by me, and endorsed, or which may have been en- dorsed, by the said Aleads, or for which he may become respon- sible." The day after the execution of this instrument the decedent attended at his shop and delivered over his account books, etc., to Meads, and put him into actual possession, and charge of the shop and business, and the property therein and Aleads then opened, or caused to be opened, a new cash-book in the presence of Alvord. On the same day Alvord gave to Whitney, one of the endorsers upon the $1,800 note, a mortgage upon the furniture, lumber, and stock in trade of the said cabinet-maker's business, to secure him as the en- dorser of that note or of any other note which might be given in lieu or renewal of it ; which mortgage was filed in the clerk's office De- cember 26 thereafter. Alvord left for the south a day or two after the date of these instruments, having left his signatures in blank with Meads, to enable him to renew the notes if necessary ; and he died at Savannah, in Georgia, December 18, 1837. When the $1,800 note became due, December 9. Meads wrote a new note for the same amount over one of the blank signatures, payable in ninety days, which was also endorsed by Whitney and 778 TERMINATION OF AGENCY. Van Vechten, and given to the bank in renewal of the note. And as the bank required further security, Meads put his name upon the note as a subsequent endorser. December 12, when the note of Rector became due, Meads filled up another note over one of Al- vord's blank signatures, and endorsed the same himself and gave it in renewal of the old note ; which note was also made payable in ninety days. Both of these renewal notes were duly protested for non-payment, and were afterwards taken up by Meads as endorser. After the death of Alvord, Meads claimed a lien upon the property and assets of the cabinet-making business in his hands, for all re- sponsibilities which he had incurred, as endorser upon these notes or otherwise; and he continued in the possession and control of the property, with the assent of the administratrix, until April, 1838, when the property was sold at auction, under his direction, and with her assent. The amount of the notes was retained by him out of the proceeds of the sale, and the residue of the proceeds was accounted for to the administratrix. The 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 endorser of the note of $1,800, a prefer- ence 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 $1,800 note and to notes drawn by Alvord and endorsed by Meads. And as that instrument was accom- panied by an actual delivery and continued change of possession of the property until it was converted into money and applied in pay- ment of 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 intention of the parties, so far as that intention can be collected from the whole in- strument and the situation of the parties at the time the writing was executed. And I think no one who reads this special clause, in con- nection with the evidence, or rather the admissions, of extrinsic facts which are proper to be taken into consideration, can believe that Alvord did not intend to give to the endorsers of the $1,800 note, and to Meads, as the endorser of the Rector note and other notes which he might thereafter endorse, a beneficial interest in the execu- tion 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 endorser, in the discharge of the duties of his agency, and that something more than an ordi- nary power of attorney was necessary to protect him from loss. And as the possession of the property was delivered to Mead, in connec- I .""EVnCAEr.E -^.GENCTES. 77^5 l'c''l'i i '. ' -^ :;'.'<%<:: \.j iii?j;';m^ ty i ii., j ' u i i ;j;.".'.^-. ■ ;■ -ii o. ! If and the other endorsers, the i •: be consid- !' sarvivev . ,.:ire, i^ ^ the Unit ' actual pl^ execute.''! Rousmanier, 8 ■rty. But a ''" laintiff to ti- manier. i : Chief Tiistict r'lvery ot ; ■ iti thnr ^ ■ -d, a, ;. - power -. And . rent if i tiie vessels ^ case the cot; i:ree of the v- ■.st a mi. re t.^ in •..':C X.h<: i 'X--: - ''■■ :-^.i] il.'iblluil ■ ;• ver of att> '■'ive to i to hi<; ]< \Vli of • ter:m ; Vaa Vechten, and given to the bank : .\ And a.s the bank required further security, T. : on the note as a subsequent endorser. Decembej lote of Rector became due, Meads filled up anotke. '^ Al- vord's blank signatures, and endorsed the same e li, in renewal of the old note ; which note was a'i in ninety days. Both of these renewal notes were r >r non~payment, and wer ' taken up b}' -•'-<'■ After the death of Al' daimed a hti rtv and assets of .the cabinet- -usiness in his ii. i e- sponsibilities which he ha: . -d, as endorser U'^^- '.es or otherwise; and he contiriued in the possession and ct .iie prop)erty, "wath the assent of the administratrix, until /x^.i... .iijS, when the property was sold at auction, under his direction, and with her assent. The amount of the notes was retained by him out of the proceeds of the pale, and the residue of the proceeds was accounted for to the adm -n:. The Chak The personal mortgage to Whitney not being filed till after \lvord, and not being accompanied by an immediate de- ^,v^;itin'' -' '■-• --session of the property, it may be doubtful it was > to give Whitney, who was " ' ' ' '- '■ endor.ic;i- (.)[ the note of $i,8oo, a prefer- other creditors of Alvord. This case, uestion; as I am satisfied that an IS created by the special clause in $t,8oo note and to notes drawn by And as that instrument was accom- :id continued change of possession of ■■':'] into money and applied in pay- •!0t necessary that the instrument ■corded, under the act of 1833. It h a construction to the language N into effect the intention of the A be collected from the whole in- .le parties at the time the wridng was ' '^o reads this special clause • ■ ■^^- 'ner the admissions, of "deration, cai. ' ."sers of the to. zhe power m Alvord and en . .,,. . panied by an actual d^ the property until it wa:^ ■ ment of two several note^ which created that lien sh is the duty of the cotirt ♦"• . of a written instr parties, so far as . strument and the situo executed. And I think ... nection with the evidenc facts which are proper to ! Alvord did not intend to and ' '. as the endor.si/L ol the Ivector note whic: lit thereafter enddrse, a beneficial intet tion of this power, for their security and indemnity, that Alvord anticipated that it would probably be nee to incur further responsibiHty as his. endorser, in the duties of his agency, and that something ■"" nary power of attorney was necessarv to protec ' e possession of the proper 'elivered . snows ' Meads iirge of .1 an ordi- 11 loss. And oonnec- I IRREVOCABLE AGENCIES. 779 tion with this power to dispose of it, for the security and protection of himself and the other endorsers, the property must be consid- ered as pledged to him for that purpose. The power to sell, there- fore, was coupled with an interest in the property thus pledged, and survived. Bergen v. Bennett, i Cai. Cas. in Err. i ; Raymond v. Squire, ii Johns. 53. In the case decided by the supreme court of the United States (Hunt v. Rousmanier, 8 Wheat. 174) 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 Rous- manier. It was upon that ground, as I understand the case, that Chief Justice Marshall held that the power was not coupled with any interest in the vessels. And I presume his opinion upon 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 business with which he was entrusted by his principal. Although it was doubted previous to the case of Kruger v. 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 execution of his agency. Whit. Lien 103; 2 Kent. Com. 640; Story Ag., § 34. And the case of Foxcraft v. Wood, 4 Russ. 487, was probably decided upon the ground that the arrangement under which the business at Birming- ham was carried on constituted Foxcraft the factor of Lanning, al- though he received a fixed salary instead of the usual mercantile com- mission 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 excep- tions are therefore overruled, with costs, and the report of the mas- ter is confirmed.^ ^ A power of attorney read : "For value received, we hereby sell, assign, and transfer to A the shares of stock within mentioned, and hereby authorize him to make the necessary transfer on the books of the corporation." It was held that this power was coupled with an interest, and could not be revoked by the donor of the power. Skinner v. Fort Wayne, etc., R. R., 58 Fed. Rep. 55. 78o TERMINATION OF AGENCY. In an agreement giving to an agent the exclusive power to sell certain land it v^^as stipulated that he was to receive as compensation for his services "an undivided one-fourth interest in the proceeds of sale when sold as aforesaid." It was held that this agency may be revoked by the principal. Chambers v. Seay, TT, Ala. Z7^- In page 378, Somerville, J., said: "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 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 in the event of the latter's death, so as to be capable of execution in the name of the agent." ACCEPTANCE, AC'. ACKi\C AO TFPMIXATT-r OF AGENi th •!S to receive : . .,.,,. , .Lcit in the •procc- .. 'hat this agency may be revoked by < 1. 372. In page 378. Somerville, J., sai ..ell settled, that the power conferred mui-. .If, or in the property which is the subject > rdi Uic power and estate must be united and co-e such a nature that the power would survive the princi tor's death, so as to be capable of execution in the name INDEX [References are to Pages.] A ACCEPTANCE, delegation of authority to accept negotiable paper, 173. of authority by agent, 101. of negotiable paper, authority to make, 114. ACCOUNTING, as affected by receipt of money on illegal contract, 723. demand as condition precedent, 726. duty of agent, 723, 726. ACKNOWLEDGMENT, by corporation, 49. ACQUIESCENCE, ratification of unauthorized negotiable paper, 361. ACTIONS, accounting, demand as condition precedent, 726. against carrier when consignor and consignee are one, 494. by agent against third persons, 494, 499, 503, 506, 508. by undisclosed principal in his own name, 449. by undisclosed principal on negotiable paper, 441, 442. by undisclosed principal on sealed instrument, 440. by undisclosed principal on simple contract, 442, 471. demand as condition precedent to, for property lost by gratuitous bailee, 733. for breach of contract as bar to action for wages, 537. on the case for deceit to enforce personal liability of agent, 406. on the case on implied promise to indemnify agent, 559. ratification by bringing assumpsit on contract, 349. trover by principal against agent, 677, 686. ACT OF GOD, compensation of agent following breach of contract of employment, 545, 550, 553. 781 782 INDEX. [References arc to PagesA ACTS, of agent, effect of statutory provisions, 53. what can be done by agent, 53, 56, 57, 60. ADMISSIONS, See Declarations and Admissions of Agent. ADOPTION, acts of agent by parol, 82. by principal of tort of agent, Z27. contract by corporation, 84. criminal act, 334. of forged instrument, effect, 331. AFFREIGHTMENT, contract as binding upon foreign principal, 388. AGENCY, as differing from service, 7. assumption by one contracting party for other, 56. assumption of risk of revocation, 751. burden of proving, 95, 113. by estoppel, 102, 103, 219, 228. by implication, 3. common-law doctrine as applied to partnerships, 82. compensaiion of agent upon revocation, 746. construction of, as being coupled with interest, 77?>. coupled with interest as being irrevocable, 770, 776. creation, acceptance by agent, 101. creation by express authority, 88, 90, 91. creation by implied authority, 95, 97, 99. creation, in general, 75, 81, 85, 88, 90, 95, 97, 99, 101, 102, 103. creation, necessity of consent of agent, 101. creation of exclusive, 92. creation, to execute sealed instruments, 75, 81, 85. death of principal as revocation, 760, 761, 764, 767, 771. death of principal as revoking irrevocable, 770. delegation, in general, 164, 166, 169, 172, 173, 175, 177, 178. duty of agent to disclose if he would avoid personal liability, 519. effect and scope of written, as question for court, 108. effect of undiscovered, 213. establishment by declarations of agent, 190. evidence as to notice of revocation, 759. evidence as to revocation, 750. evidence insufficient to establish, 477. evidence to establish, 42, 96. INDEX. 783 {References are to Pages.^ AGENCY— Continued. executed by sub-agent, 171. form and requisites of revocation, 749. for single woman as terminated by marriage, 767. knowledge of agent of revocation, 761. liability of principal to agent upon revocation, 755. liability of principal to third persons for act of agent following revocation, 750, 757, 760, 761, 764. mutuality of contract as essential to non-revocability, 748. nature and kinds, 1, 5, 11. notice of revocation, 747, 750, 757. operation and effect of revocation, 751. parol revocation, 749. ratification, 337. ratification of act of agent following revocation, 752. real, 102. revival of terminated, prior, 743. revocation as implied from circumstances, 749. revoked by insanity of principal, 768. right to revoke, in general, 744, 771. right to revoke, to sell land, 746. sale by principal as revocation of, to sell, 748. sale of property as evidence of revocation, 750. suspension, 766. terminated by execution of power, 776. terminated by senseless condition of principal in extremis, 766. to sell, right tO' revoke as affected by "exclusive" or "irrevocable" grant of power, 748. validity of payment to agent after revocation, 761. when irrevocable, 771, 775. AGENT, ability of principal to act through agent, 40. acceptance of authority, 101. acts as establishing authority, 96. appointment by infant, 340. as principal, 40. burden of proving character, 108. defined, 1. distinguished from servant, 5, 7, 436. general and special defined, 198. mere request as not constituting person gratuitous, 736. notice and knowledge, 293, 296, 299, 300, 304, 307, 310, 313. of seller as purchaser or agent of purchaser, 752. one contracting party assuming to act for the other, 56. 784 INDEX. [References are to Pages.] AGENT — Contimicd. one person agent of both parties, 708. personal communication unnecessary to make appointment illegal, Z7. ratification of act done following revocation of authority, 752. ratification of illegal appointment, 2)7. seller as agent of buyer following latter's default, 100. "servant," interchangeable term, 7. special, general, and universal, 11. what acts can be done by, 53, 56, 57, 60. who can be, 39, 41, 42, 44, 46, 50. who is an, 3. ALIENS, as attorneys in fact, 42. APPOINTMENT, contract for illegal purposes, 61, 66, 71. ASSENT, to broker acting for both parties to transaction as affecting ri^ht to compensation, 57. ASSIGNMENT FOR BENEFIT OF CREDITORS, authority to execute, 118. ASSIGNMENTS, ratification of invalid contract, 358. ASSUMPSIT, against agent executing unauthorized contract, 396. on implied promise to indemnify agent, 559. ratification of act of agent by bringing, 349. ASSUMPTION OF RISK, by person dealing with agent, of revocation of latter's authority, 751. by servant, 633, 639, 644, 645, 650, 653, 665, 669. ATTACHMENT, notice to attaching officer as notice to plaintiff, 302. ATTAINTED PERSONS, as attorneys in fact, 42. ATTORNEYS, .See Attorneys at Law, Attorneys in Fact. ATTORNEYS AT LAW, authority to execute specialty, 83. I INDEX. 785 [References are to Pages.] ATTORNEYS AT LAW— Continued. authority to prepare, sign and present liquor license remonstrance, 167. compensation of solicitor empowered by married woman, 23. compensation under contract for lobbying, 61. contract to influence governmental acts, 70. contract to place facts of case before government officers, 69. duty to client as to use of diligence and skill, 721. fee as "current wages," 526. fee contingent upon success in influencing governmental acts, 70. fee for voluntary services, 531. fixed fees for influencing governmental acts, 70. general authority from general employment, 233. implied representations as to knowledge and skill, 721. liability for mistakes as to law, 721. liability for want of professional skill and diligence, or negligent ad- vice, 719, 721. power to employ to prosecute suit, by agents of town, 177. right of client to sell to, 703. ATTORNEYS IN FACT, aliens, 42. appointment by infant, 340. attainted persons, 42. authority to sign liquor remonstrance, 166. corporation as, 46. deed of, when valid, 131. husband for wife, 75. infant, 42. modes and means of executing authority to sell land, 184. personal liability in executing unauthorized bond, 392. to execute negotiable paper, 122. validity of deeds, 131. AUCTIONS, duty of purchaser to inquire as to seller's right to sell, 216. AUTHORITY, acceptance by agent, 101. acts of agent as establishing, 96. administrator to make covenants in sale of land under judicial decree, 129. agents of town appointed to prosecute a suit, 177. apparent as real, 229, 233, 477. assumption of risk of revocation, 751. brokers, 181. burden of proving, 113. 50 — Reinhard Cases. 786 INDEX. [References are to Pages.'\ AVTHORITY— Continued. by estoppel, 219, 228. character of agent, burden of proving, 108. compensation of agent upon revocation, 746. conferred by power of attorney, 210. consent of principal to delegation, 178. construction as being coupled v^^ith interest, 778. creation by agent, 95. creation of agency by express, 88, 90, 91. creation of agency by implied, 95, 97, 99. creation of agency to execute sealed instruments, 75, 81, 85. death of principal as revoking irrevocable, 770. delegation by agents of town to prosecute suit, 177. delegation by bank to collect negotiable paper, 178. delegation in general, 164, 166, 169, 172, 173, 175, 177, 178. delegation to accept negotiable paper, 173. delegation to indorse negotiable paper, 185. delegation to sign liquor license remonstrance, 166. delegation with reference to bill of exceptions, 169. duty, to ascertain in general, 89, 113, 206. duty to ascertain character and extent of agency, 123. duty to ascertain extent and limit, of agent under written power, 210. duty to ascertain, of agent acceptor, 116. duty to ascertain, of special agent, 214, 233, 482. duty to ascertain powers of married woman's agent, 23. efifect of exceeding, 88. effect of revocation as to third persons, 757. effect of secret instructions, 222, 226. effect of undisclosed limitations, of general freight agent, 220. established by declarations of agent, 190. estoppel to deny, 102, 103, 219, 228. evidence as to notice of revocation, 759. evidence as to revocation, 750. evidence to establish character, 108. evidence to establish, to execute accommodation paper, 110. execution as to bills and notes, 136. execution as to sealed instruments, 124. execution of agency by corporation as delegation, 49. extent under power of attorney, how settled, 183. factor to sell on credit, 224. following from acts of principal, 222. form and requisites of revocation, 749. from undisclosed principal to sell as, to receive payment, 461. full, as implied from custom of buying and selling, 228. general agent, as limited by private instructions, 215. INDEX. 787 [References are to Pages.] AUTHORITY— Continued. general agent, scope, 220. general agent to execute accommodation paper, 110. general agent to make accommodation acceptance, 188. given agent by parol, 82. how determined, 192. implications as question for jury, 109. implications from testimony of witnesses as question for jury, 109. implications in general, 188. implied as to special agent, 188. implied, from what deducible, 214. implied general, 98. implied, in salesman to receive payment, how shown, 222. implied of general freight agent to promise cars, 216. implied to fix compensation of sub-agent, 190. implied, to receive payment, 202, 206. import of, general, 108. intention to execute, to appear on face of instrument, 134, 140. knowledge as to limitations upon, as question for jury, 220. knowledge of agent of revocation, 761. liability in damages of principal to agent upon revocation, 755. liability of principal for act of agent following revocation, 750, 760. 761, 764. modes and means of executing, 184. mutuality of contract as essential to non-revocability, 748. nature of express, 88. nature of, implied, 95. notice of revocation, 747, 750, 757. operation and effect of revocation, 751. parol revocation, 749. parol, to execute deed, 87. power to delegate, implied from circumstances, 175. presumptions as to, to buy from, to sell, 228. railroad brakeman to remove trespasser, 275. railroad conductor, in general, 192. railroad conductor to employ surgical aid for injured brakeman, 192. railroad conductor to remove trespasser, 277. ratification of act of agent done following revocation, 752. revocability, in general, 744, 771. revocability, to sell land, 746. revocation as implied from circumstances, 749. revoked by death of principal, 760, 761, 764, 767, 771. right of third person to rely upon agent's apparent, 200. rules of construction, 114. sale by principal as revocation of, to sell, 748. 788 INDEX. [References are to Pages.] AUTHORITY— Continued. sale of property as evidence of revocation, 750. salesman to receive payment for principal, 221. special agent, effect of private instructions, 215. stockholders to employ agents, 190. suspension, 766. terminated by execution of power, 776. terminated by insanity of principal, 768. terminated by senseless condition of principal^ in extremis, 766. to accept bills and notes, 114. to act for single woman as terminated by marriage, 767. to bind municipal corporation by sealed instrument, 83. to bind principal by instrument in writing, 87. to bind principal by sealed instrument, 83, 392. to collect debts as, to give notes, 393. to convey land, construction, 121. to draw bill, 207. to employ sub-agent, 172, 176. to execute assignment for benefit of creditors, 118. to execute bills and notes, 122. to execute bond, burden of proving, 393. to execute mortgage and mortgage note, 132. to execute sealed instrument, 75, 76, 82. to lease as, to make representations regarding property, 246. to make contract for corporation, 84. to make covenants in sale of land, 183. to make warranties, how arising, 245. to sell, delegation of, by factor, 169. to sell land, conferring of, 91. to sell, right to revoke as affected by "exclusive" or "irrevocable" grant of power, 748. to subject principal to action on collateral contract in regard to bill drawn by agent, 207. under general employment in specific capacity, 233. under power of attorney to sign liquor license remonstrance, 166. validity of pajanent to agent after revocation, 761. what, can be delegated, 172. what, cannot be delegated, 164. what constitutes delegation of, to indorse bills and notes, 186. when implied, 280. wife to employ servant by contract under seal, 84. INDEX. 789 [References are to Pages.l B BAILMENT, burden of proving liability of bailee to bailor for gross negligence, 732, suit by undisclosed bailor in his own name, 452. BANKS AND BANKING, duty of gratuitous banker to client to exercise diligence, etc., 730. knowledge of vice-president as knowledge of bank, 310. liability of gratuitous officers of bank for negligence, etc., 737. notice to or knowledge of director or trustee, 300, 307. parol evidence to establish ownership in bank of promissory note pay- able to cashier, 444. right of bank to delegate authority to collect negotiable paper, 178. BILL OF EXCEPTIONS, delegation by judge of authority as regards, 169. BILLS AND NOTES, acceptance by procuration, 114. action by undisclosed principal, 441, 442. authority of general agent to execute accommodation paper, 110 authority to accept, 114. authority to collect debts as authority to execute, 393. authority to draw, 207. authority to execute mortgage note, 132. authority to make purchase as authority to execute, 468. delegation of authority to accept, 173. delegation of authority to indorse, 185. duty of agent receiving, for collection, 710. estoppel of principal by indorsement of sub-agent, 186. execution by agent, 123. execution of authority as to, 136. intent to execute authority must appear on face, 140. liability of agent when intent to bind principal is clear, 148. liability of undisclosed principal, 465. negotiable paper in agent's name, 138. operation of unauthorized paper in principal's name per that of agent, 378. parol evidence as to intent in signing negotiable paper, 142, 149. parol evidence to establish ownership in undisclosed principal, 441, 444. power of attorney to execute, 122. power of married women to execute, 22. presumption in regard to those of married woman, 22. principal or agent liable, 140, 149. ratification by one partner of paper executed in firm name by other partner, 366. 790 INDEX. [References are to Pages.] BILLS AND NOTES— ConfmM^d. ratification of forged signature, 328, 332, 336. ratification of unauthorized negotiable paper signed in principal's name per that of agent, 378. ratification of unauthorized signature by acquiescence, 361. relevancy of testimony as to intent in signing, as being discretionary with court, 144. validity for unauthorized sale by agent, 326. what constitutes delegation of authority to indorse, 186. wife as agent of husband in execution of accommodation paper, 109. BILLS OF LADING, liability of railroad on fraudulent and collusive, 248, 255. nature, 252, 256. BONDS, personal liability of agent in executing unauthorized, 392. BROKER, apparent authority as real authority, 229. as middleman, 61, 535. authority, in general, 181. compensation from both parties to transaction, 57, 60, 708. contract, 529. failure to obtain license, 50. general authority from general employment, 233. personal liability for purchase money, 522. possession as implied authority to pledge, 230. to procure loan, when entitled to commission, 534. voluntary broker as not entitled to commissions, 528. when entitled to commissions, in general, 527. BURDEN OF PROOF, agency, 95. authority, in general, 113. authority to execute bond, 393. character of agent's authority, 108. fairness of questioned sale by agent, 702. liability of gratuitous bailee to bailor for negligence, 732. liability of principal on simple contract signed in agent's name, 162. negligence on part of master, 641. ratification, in general, 346. that employe could have obtained higher wages than he did following breach of contract, 536. that employe could not obtain employment after breach of contract, 536. INDEX. ygi [References are to Pages.] C CARRIERS, action against, when consignor and consignee are one, 494. liability on fraudulent and collusive bill of lading, 248, 255. CHANCERY, bill signed by wife for husband, 75. CLUBS, president as personally liable for wrongful act, 418. COLLUSION, See Bills of Lading; Fraud; Liability of Principal to Third Persons. COMMISSION MERCHANTS, See Factors. COMMISSIONS, See Compensation of Agent. out of proceeds of sale to be made as "interest," 748. COMPENSATION OF AGENT, broker acting for both parties to transaction, 57, 60. by administrator of employer upon breaching contract of agency, 550. contingent upon success in influencing governmental acts, 70. death of agent as barring recovery for services rendered under contract of employment thereby breached, 553. death of principal as terminating right under contract of employment, 550. duty of principal, in general, 526, 527, 531, 534. failure of broker to obtain license, 50. fixed, for professional services in influencing governmental acts, 70. following breach of contract of employment by act of God, 545, 550, 553. for influencing location of government office, 66. for influencing location of railroad station, 67. for influencing pardon of another, 71. for influencing those in public service, 68. for lobbying, 61. for placing facts of case before government officers, 69. from both parties to transaction, 708. implied authority of agent to fix compensation of sub-agent, 190. of attorney at law as "current wages," 526. right of agent to sue third person for, lost by third person's breach of contract, 503. solicitor emploj'ed by married woman, 23. under contract of doubtful nature, 93. upon his breach of contract of employment, 543. 792 INDEX. [References are to Pages.] COMPENSATION OF AGE^T— Continued. upon revocation of authority by principal, 746. voluntary service as calling for, 527, 531. when agency has been prematurely terminated» 535, 537, 539, 543, 545, 550, 553. when agent has breached contract of employment, 545. COMPETENCY, of agent, 39, 41, 42, 44, 46, 50. of principal, 15, 18, 21, 22, 23, 25, 27, 34, 36, 38, 39. CONDITION PRECEDENT. See Actions. CONSENT, of agent necessary to creation of agency, 101. CONSIDERATION, of transaction with unauthorized agent, 408. CONSIGNOR AND CONSIGNEE, action against carrier when one person is both, 494. CONSTRUCTION, See Interpretation and Construction. CONTINGENT FEES, See Attorneys at Law, Compensation of Agent. CONTRACT, See Authority; Bills and Notes; Liability of Agent to Principal; Lia- bility of Agent to Third Persons; Liability of Principal to Agent; Liability of Principal to Third Persons ; Sealed Instruments. appointment for illegal purposes, 61, 66, 71. capable of ratification, 323, 324, 326, 328, 332, 336, 337. construction of sealed, as simple, 462. construed as agency rather than option, 93. execution of simple, 157, 158. liability of undisclosed principal upon written parol executory, 465. made by person assuming to act as agent, validity, 397. must be ratified or repudiated as entirety, 349, 364. of agent as that of principal, 449. of infant through agent, 15, 414. of infant, void and voidable, 16-18. of lunatic, 27. of married woman, 22. INDEX. 793 [References are to Pages.] CONTRACT— Continued. power of married woman to execute contracts relating to her busi- ness, 25. ratification of infant's partner's, 18. simple, burden of proving principal liable when signed in agent's name, 162. simple, parol evidence to show intent of agent in signing in his own name, 155. simple, signed by agent in his own name, 137. to assist property owner in fitting up or purchasing building to be given to government for public use, 70. CONTRIBUTORY NEGLIGENCE, See Negligence. CORPORATIONS, acknowledgment, 49. acting impossible except by agents, 49. act of agent without scope of authority as affecting liability for his tort, 275, 279. act of officers as act of, 49. adoption of contract, 84. as agent, 48. as attorney in fact, 46. authority to make contract for, 84. employment of surgical aid for injured employe as acknowledgment of liability to such one, 200. estoppel by acts of one held out as agent, 219. execution of agency as involving delegation of authority, 49. general agent, as corporation itself, 195. knowledge of officers, 310. liability as undisclosed principal, 468. liability for act of agent held forth as general agent, 219. liability for compensation of sub-agent authorized by stockholders, 190. liability for false representations of officers, 241. liability for fraud of agents, 309. liability for surgical aid rendered injured employes, 192. liability of gratuitous officers for negligence, etc., 737. liability when agent has colluded with third persons, 313. negligence of directors, 635. noticeto or knowledge of trustee or director, 300. parol evidence to establish ownership of promissory note payable to officer, 444. personal liability of individuals for tort as not to be predicated of their being directors, officers or stockholders in domestic, 426. power of stockholders to employ agents, 190. 794 INDEX, [References are to Pages.^ CORPORATIONS— CoH;mM(?J. power to appoint agents, 35. power to make contracts, 35. president as personally liable for wrongful act of, 418. presumption as to power to contract, 35. ratification of unauthorized contract, 324. COURTS, delegation by judge of authority with reference to bill of exceptions, 169. COVENANTS, authority to make, in sale of land, 183. liability of undisclosed principal to third person, 464. CREDIT, authority of factor to give, 224. CRIMES, ratification, 328, 332, 336. CUSTOMS AND USAGES, affecting authority of factor to sell on credit, 226. affecting authority to make covenants in sale of land, 183. affecting course pursued by factors, 682. affecting right of undisclosed principal to sue purchaser from fac- tor, 460. notice of bank's, in collecting negotiable paper, 180. of bank, upon whom binding, 180. of brokers as defining authority of broker, 182. operation of local, 460. presumptions as to agent's full authority from custorq of buying and selling, 228. D DAMAGES, measure for breach of contract of employment, 536. measure in action by agent when latter has breached contract of em- ployment, 545. measure in action by railroad superintendent for breached contract of employment, 539. measure in action for compensation of deceased agent under contract of employment, 557. reduction, recoverable by employe for breached contract of employ- ment, 540. INDEX. 795 [References are to PagesA DEATH, of agent as barring recovery for services rendered under contract of employment thereby breached, 553. of principal as evidence of revocation of authority, 750. of principal as revocation of agency, in general, 550, 760, 761, 764, 767, 771. of principal as revoking irrevocable power, 770. of principal as terminating agent's right to compensation, 550. DECEIT, of agent, liability of principal, 235, 237, 241. DECLARATIONS AND ADMISSIONS OF AGENT OR SERVANT, as binding principal, 190, 200, 317, 319, 322. as establishing his right to receive payment, 202, 206. as proving agency, 95, 190. effect of unauthorized representations of agent, 222. principle upon which, are evidence against principal or agent, 319, 322. DEEDS, authority of agent to sell land as authority to make, 184. authority of one partner to bind another by, 83. authority to execute, 75, 76, 82, 87. manner of executing, so as to bind principal, 440. of attorneys in fact, when valid, 131. of lunatic, 27. parol authority to fill blanks, 76. parol ratification of filling blanks, 76. signing by agent, 125. DEFINITIONS, agency, 7. agent, 1, 3, 5, 7, 436. general agent, 11, 198, 199. servant, 5, 7, 436. service, 7. special agent, 11, 199. universal agent, 11. DELEGATION OF AGENCY, See Delegation of Authority. DELEGATION OF AUTHORITY, by agents of town to prosecute suit, 177. by bank to collect negotiable paper, 178. by judge as regards bill of exceptions, 169. 796 INDEX. [References are to Pages.} DELEGATION OF AUTHORITY— Coufinued. consent of principal, 178. execution of agency by corporation as, 49. in general, 164, 166, 169, 172, 173, 175, 177, 178. power to delegate implied from circumstances, 175, 177, 178. to accept negotiable paper, 173. to indorse negotiable paper, 185. to indorse negotiable paper, what constitutes, 186. to sell, by factor, 169. to sign liquor license remonstrance, 166. what authority can be delegated, in general, 172, 173. what authority cannot be delegated, in general, 164, 166, 169. with reference to policy of insurance, 164. DEMAND, as condition precedent to action for accounting, 726. as condition precedent to action for property lost by gratuitous bailee, 733. DESCRIPTIO PERSONARUM, effect of use of words, 124, 127, 129, 130, 132, 136, 139, 148, 149, 157, 158, 162, 440. DUTY OF AGENT TO PRINCIPAL, agent receiving negotiable paper for collection, 710. agent to sell as having no right to purchase for himself, 701. illegality of contract as absolving agent from duty of accounting, 723. not to accept retainer from other party to transaction, 707. of gratuitous agent, 728, 730, 732, 734, 736, 737. to account, 723, 726. to communicate knowledge of facts, 688, 695. to obey instructions, 673, 675, 677, 681, 685, 686. to observe good faith, 688, 689, 692, 695, 698, 705, 707. to use care and skill, 710, 716, 719, 720, 721. voluntary agent not absolved from exercise of good faith, 691. DUTY OF PRINCIPAL TO AGENT, See Master and Servant. compensation in general, 526, 527, 531, 534. compensation, when agency has been prematurely terminated, 535, 537, 539, 543, 545, 550, 553. compensation when agent has himself breached his contract of employ- ment, 545. of administrator of employer to compensate agent upon breaching con- tract of latter, 550. to reimburse agent, 558, 561. INDEX. 797 [References are to Pages.] ELECTION, acts constituting election to hold agent, 492. between enforcing liability of undisclosed principal, and that of agent, 490. time for making, between enforcing liability of agent and undisclosed principal, 489, 490. EMBEZZLEMENT, by receiver, 1. EMERGENCY, liability of railroad company for surgical aid to employe, 192. EMPLOYER AND EMPLOYE, See Master and Servant. ESTOPPEL, agent to question principal's title, 693. creation of agency, 102, 103, 219, 228. husband to deny agency of wife, 109. one agent by execution of power by another, 751. principal by apparent authority of broker, 229. principal by declarations and acts of agent, 317, 319, 322. principal by forgery of name, 334. principal by holding person out as agent, 219. principal by indorsement of sub-agent, 186. principal by notice to agent, 293, 296, 299, 300, 304, 307, 310, 313, 356. principal by permitting another to hold himself out as principal's agent, 228. principal by ratification of forged signature, 336. principal by representations of agent, 237, 241, 243, 255. principal to allege subsequent incapacity, 768. principal to disaffirm contract by acceptance of benefits, 358. EVIDENCE, delivery to agent, 42. notice of revocation of authority, 759. ratification of act of agent following revocation of authority, 752. ratification of authority, 42. revocation of authority, 750. sufficiency of to establish delivery to agent, for jury, 42. to establish agency, 42, 96, 477. to establish authority to execute accommodation paper, 110. to establish character of agent, 108. to establish wife in business, as agent of husband, 45. 798 INDEX. [References are to Pagcs.^ EXCOMMUNICATED PERSONS, as attorneys, 42. EXECUTION OF AUTHORITY, See Authority. EXECUTORS AND ADMINISTRATORS, authority to make covenants in sale of land under judicial decree, 129. construction of covenants in deed, 129. duty to compensate agent of deceased upon breach of contract of em- ployment by, 550. liability for covenants made in sale of land under judicial decree, 129. liability in sale of decedent's personal property, 171. EXTENT OF AUTHORITY, See Authority. F FACTORS, acts as controlled by usages of trade in usual course of dealing, 682. as principal, 171. authority to sell on credit, 224. conversion, 679. delegation of authority to sell, 169. duty to obey instructions of principal, 681. general authority from general employment, 233. personal liability for breach of warranty of goods sold, 513. personal liability on contract following but before notice of death of principal, 763. possession by as implied authority to pledge, 230. right to compromise debts, 682. set-off against, as available against undisclosed principal, 455, 457. FALSE REPRESENTATIONS, effect of agent's believing to be true, 247. of agent, liability of principal, 239, 246. of insurance agent, personal liability, 401. "representation" and "warranty" as not synonymous, 245. to bind principal, 246. FELLOW-SERVANTS, basis of "department limitation or doctrine of consociation," 581. boiler-maker and fireman and engineer, 642. "captain" of dredge and deck hand, 624. car inspector and brakeman, 572. car- repair foreman and car repairer, 615. I INDEX. 799 [References are to Pages.] FELLOW-SERVANTS— Continued. co-agents distinguished, 580. co-laborer in service of emploj^er and draftsman, 594. conductor and others employed on train, 627. conductor of train and snow shoveler riding thereon, 631. employe as, rather than passenger on railroad train, 590. employe of lessor and lessee, 586. express agent and handler of goods, 630. foreman and other workmen, 628. liability of master for injuries caused by negligence, 563, 570, 572, 574, 577, 582, 586, 590, 594, 596, 604, 608. mining or driving boss and those working with or under him, 628. motorman of interurban and laborer on construction work, 582. stationary engineer in unloading coal and shoveler, 580. superintendent of construction train and common laborer on construc- tion work, 620. switch-engine driver and car repairer, 571. switchman and switchman, 579. truckman unloading coal and shoveler, 579. vice principal as, 630. who are, in general, 571, 573, 576, 579, 583, 586, 590, 594, 604, 616, 621, 624, 628, 630. FORGERY, adoption of forged instrument, effect, 331. effect of attempted ratification of forged instrument, 328, 332, 336. FRAUD, collusion of agent with third persons, 248, 255, 313. false representations of insurance agent, 401. fraudulent indorsement, effect of attempted ratification, 323, 328, 332, 336. liability of agent to third persons on unauthorized contract as depend- ent on injury to such third person, 399. liability of principal to third persons following judgment by latter against agent for, 487. notice of, in negotiable paper to director as notice to bank, 307. of agent in receiving payment, 202, 206. of agent, liability of principal, 235, 237, 241, 243, 248, 271. of husband as that of wife, 313. principal retaining benefit of agent's fraudulent act, 315. ratification of forged signature on negotiable instrument, 328, 332, 336. ratification of tainted contract, 328, 332, 336. unnecessary to impose liability on agent for neglecting to perform, 717. upon principal, concealment of facts by agent, 688. what constitutes ratification of tainted contract, 323. 800 INDEX. [References are to Pages.] G GENERAL AGENT, authority to execute accommodation paper, 110. authority to make accommodation acceptance, 188. by implication, 188. clearly distinguishable from universal, 12. defined, 11, 108, 198. distinguished from special, 13, 482. liability of principal for acts, 13. of corporations as corporation itself, 195. railroad conductor, 198. scope of authority, 220. to be carefully distinguished from universal, 112. to sell land, modes and means of executing authority, 184. H HOMICIDE, as within line of duty of agent, 284. by agent, liability of principal, 284. HUSBAND, agency of wiie in business for, 45. as agent of wife, 26. as attorney in fact for wife, 75. authority of wife to employ servant by sealed instrument, 84. business of wife as that of, 45. estoppel to deny agency of wife, 109. fraud of, as fraud of wife, 313. liability of capital advanced by wife for trade debts, 26. liability on contracts made by wife in her business, 45. presumption as to agency of wife, 44. tertnination of general agency of wife, 766. wife as agent in executing accommodation paper, 109. wife as agent in purchase of necessaries, 45. wife as surety, 80. I IDENTITY OF PRINCIPAL AND AGENT, agent as principal, 40. of principal and factor, 171. ILLEGAL AGENCY, assisting property owner in fitting up or purchasing building to be given government for public use, 70. influencing governmental acts, 70. INDEX. 8oi [References are to Pages.^ ILLEGAL AGENCY— Continued. influencing location of government office, 66. influencing location of railroad station, 67. influencing pardon of another, 71. influencing those in public service, 68. lobbying, 6L ILLEGAL CONTRACT, accounting for money received on, 723. contract by agent of state unauthorized and impliedly prohibited by statute, 327. of appointment, 61, 66, 71. ratification, 327, 331, 334. ILLEGAL PURPOSES, See Illegal Contracts. IMBECILES, See Insanity. IMMORAL CONTRACTS, contract by agent of state unauthorized and impliedly prohibited by statute, 327. of agency, influencing pardon of another, 71. of agency, lobbying, 61. ratification, 331, 334 IMPLIED AUTHORITY, See Agency; Authority; Presumptions and Implications. INDEMNITY, between wrong-doers, 560. INFANT, as agent, 40, 43. as attorney in fact, 42. infancy as personal privilege, 414. power to appoint agent for sale of property, 15. power to appoint agent or attorney, in general, 17, 19, 340. ratification of act of agent done while principal was, 340. ratification of contract of partner, 18. void and voidable acts, 16, 18, 19, 414. INSANITY, deed, contract, or power of attorney of lunatics, 27. imbecile as agent, 40. 51 — Reinhard Cases. 802 INDEX. {References are to Pages A mSANlTY—Contimied. lunatic as agent, 40. of partner as dissolving partnership, 769. of principal as suspending authority, 768. of principal as terminating agency, 768. INSURANCE, delegation of authority with reference to policy, 164. liability of company when agent has colluded with insured, 313. notice to agent as imputed to insurer, 293. personal liability as gratuitous agent for failure to insure, 736. personal liability of agent making false representations, 401. INTENT, liability of agent on negotiable paper when, to bind principal is clear, 148. manner of showing, to appoint agent, 102. of agent in signing note, 151. parol evidence to show, of agent in signing negotiable paper, 142. parol evidence to show, of agent in signing simple contract, 155. relevancy of evidence as to, in signing negotiable paper as discretionary with court, 144. INTERPRETATION AND CONSTRUCTION, agent's authority, 114. changing grammatical, 159. contract as to termination of agency, 739, 741. covenants in administrator's deed, 129. deed of attorney in fact, 131. language sufficient to confer authority to make covenants in sale of land, 183. meaning of word changed by popular use, 159. power of attorney as being coupled with interest, 778. power of attorney as creating equitable lien, 778. power of attorney, in general, 119, 121. power of attorney to convey land, 121. power of attorney to execute bills and notes, 122. signature of agent to negotiable paper, 136, 139, 148, 149. signature of agent to sealed instrument, 124, 127, 129, 130, 132. signature of agent to simple contract, 157, 158, 160, 161. signature to mortgage and mortgage note, 132. words used in executing authority, 140. INTOXICATING LIQUORS, authority of attorneys at law to prepare, sign and present remon- strance, 167. IRREVOCABLE AGENCY, See Agency. INDEX. 803 [References are to Pages.] K KNOWLEDGE, duty to know agent's authority, 23, 89, 113. liability of agent to third persons when latter have, of agency, 521. of agent as imputed to principal, 293, 296, 299, 300, 304, 307, 310, 313. of agent as imputed to principal, effect upon of collusion of third per- son, 313. of agent as to revocation of authority, 761. of director or trustee of bank, 300, 307. of limitations upon authority of agent as question for jury, 220. of servant as ending right to assume that master will provide safe appliances, 661. of servant of defects in machinery as entering into question of con- tributory negligence, 668. of vice-president of bank as, of bank, 310. ' that acceptance is by agent, effect, 116. that broker is acting for both parties to transaction as affecting right to compensation, 57, 60. what constitutes, of master as to incompetency, etc., of servant, 604, 608. L LANGUAGE, See Words. LARCENY, by agent liability of principal, 260. LIABILITY OF AGENT TO PRINCIPAL, agent as guilty of conversion, 677, 686. as not dependent upon fraudulent intent of agent, 691. bank officer rendering gratuitous services for negligence, etc., 737. for exceeding authority, 234. for nonfeasance, 426. for omission of duty, 421, 423. fraud unnecessary to impose liability for neglecting to perform, 717. gratuitous agent as depending upon undertaking to act, 736. gratuitous agent for wilful and malicious fraud and wrong, 728. gratuitous agent, request as insufficient to establish liability, 736. gratuitous bailee for gross negligence, 732. in purchasing from principal, 695. in selling his property to principal, 705. nature when agent disregards instructions, 676. on purchasing in his own name while in performance of office, 694. physician rendering gratuitous services, for malpractice, 736. when loss has resulted through failure of agent to obey instructions, 673. when principal has given ambiguous instructions, 685. 804 INDEX. [References are fo Pages.] LIABILITY OF AGENT TO THIRD PERSONS, administrator for covenants made in sale of land under judicial de- cree, 129. administrator in sale of decedent's personal property, 17L affecting liability of undisclosed principal, 443. agent as chargeable with wrongful act of principal, 415. agent innocently disposing of stolen property, 415. agent in undisclosed agency for services, 519. agent of foreign principal as depending on intent, 388. agent participating in creation of public nuisance, 418. broker for purchase money, 522. commission merchant for breach of warranty made by him in selling goods, 513. depending on actual act of agent, 420. depending on intention and understanding of the parties, 387. depending on lack of notice to such third persons, 415. duty of agent to disclose agency if he would avoid personal liability, 519. for act done following revocation of authority by death of principal, 763, 765. for act of sub-agent employed without authority, 176. for nonfeasance, 421, 423, 426, 428. for torts, 415, 418, 420, 421, 423, 426, 428. individuals for tort of corporations, not predicable of their being di- rectors, etc., of domestic corporations, 426. in signing negotiable paper when intent to bind principal is clear, 148. nature of agent's personal obligation, 408. nature of obligation affecting, for tort, 428. not established by mere fact of infancy of principal, 412. on authorized contract for disclosed principal, 383, 387, 388. on building contract made for undisclosed principal, 517. on note executed for principal, 140. on purchasing as ostensible principal, 511. on sealed instruments executed without or beyond authority, 130. on unauthorized bonds, 392. on unauthorized contract as depending upon actual injury to such third person, 399. on unauthorized contract, in general, 392, 393, 394, 396, 399, 401, 407, 412, 415. on unauthorized negotiable paper, 394. president of club for wrongful act of same, 418. private agent in attempting to bind principal, 394. public agent acting in public business, 383, 394. public or private agent in exceeding authority, 395. qualification of rule that if agent does not bind principal he binds him- self, 383. INDEX. 805 [References are to Pages.] LIABILITY OF AGENT TO THIRD PERSOlSiS— Continued. rule as to liability of private agents extends to public agents, 395. under what circumstances agent is liable, 401. upon ratification of unauthorized negotiable paper signed in principal's name per that of agent, 378. upon signing negotiable paper, 149. upon signing simple contract, 161. when latter have knowledge of agency, 521. LIABILITY OF PRINCIPAL TO AGENT, for compensation when agent has breached contract of employment, 543. for damages upon revocation of contract of agency, 755. upon thwarting execution of power, 747. LIABILITY OF PRINCIPAL TO THIRD PERSONS, acting without authority as affecting, for tort of agent, 269, 275, 279. act of agent, driving cart, running down pedestrian, 262. act of agent following revocation of authority by death of principal, 760, 761, 764. act of agent following revocation of authority, in general, 750, 757. act of agent in excess of authority, 108, 123, 211, 215. act of agent within apparent authority, 229. act of agent within scope of his authority, 215, 222. act of person held forth as agent, 219, 222, 228. act of special agent, 108. act of sub-agent, 171, 172, 176. after judgment by latter against agent for fraud, 487. as affected by want of notice of subsequent incapacity, 768. concurrent liability of agent and undisclosed principal, 489. effect of ratification of act of agent, in general, 370. effect of ratification of contract of partnership, 371. effect of secret instructions, in general, 215, 222, 226, 233. effect of undisclosed limitations upon authority of general freight agent, 220. election by third persons to proceed against undisclosed principal, 449. false representations of agent, 246. homicide by agent, 284. injuries to property caused by driving of agent, 263. in retaining benefit of fraudulent act of agent, 315. in trover for larceny by agent, 261. larceny by agent, 260. manner of executing contract by deed to render principal liable, 440. nonfeasance of agent, 426. on note executed by agent disclosing agency, 140. on sealed instrument signed by agent in his own name, 125, 127, 132. 8o6 INDEX. [References are to Pages A LIABILITY OF PRINCIPAL TO THIRD PERSONS— Continued. on sealed instrument signed in his presence and at his request, 134. personal injuries inflicted by agent, 258, 260, 262, 263, 265, 269, 275, 279. principal in undiscovered agency, 213. railroad, for cars promised by general freight agent, 216. railroad, for surgical aid rendered injured employe, 192. railroad, on fraudulent and collusive bill of lading, 248, 255. right of person with notice, dealing with agent on his personal credit, subsequently to charge principal, 449. tort of agent, 235, 237, 241. 255, 258, 260, 262, 263, 265, 269, 275, 279. tort of servants of sub-contractor, 285. tort of sub-contractor, 285. trespass of agent, 258. unaffected by fact that contract was made by infant agent, 43. undisclosed principal, as affected by personal liability of agent, 443. undisclosed principal as affected by secret restrictions upon authority of agent, 475, 476. undisclosed principal, as concurrent with that of agent, 490. undisclosed principal, for breach of contract by agent, 476. undisclosed principal, on contract in general, 468, 484. undisclosed principal, on contract of purchase, 469, 474. undisclosed principal, on negotiable paper, 138, 149, 465, 467. undisclosed principal, on sealed contract, 462. undisclosed principal, on unauthorized contract of special agent, 477. undisclosed principal, on written parol executory contract, 465. undisclosed principal to vendor in sealed executory agreement to con- vey, 462. upon ratification of agency of person committing tort, 337. upon ratification of forged signature, 336. when acts of agent are within general authority arising from general employment in specific capacity, 233. when agent has colluded with third persons, 248, 255, 313. when agent has disobeyed orders or duty, 214. when agent has signed simple contract in his own name, 137. LIABILITY OF THIRD PERSONS TO AGENT, of carrier to consignor who is agent of another, 494. on contract by agent for principal, 494, 506, 508. on contract not disclosing principal, 499. where latter loses compensation through breach of contract of former, 503. LIABILITY OF THIRD PERSONS TO PRINCIPAL, as parties to unauthorized acts of agent, 234. following unauthorized payment to salesman, 221. INDEX. 807 [References are to PagesA LIABILITY OF THIRD PERSONS TO FRI^CIFAL— Continued. right of undiscovered bailor to sue in his own name, 452. right of undisclosed principal to sue on sealed contract, 438, 441, 450. right of undisclosed principal to sue on unsealed contract, 442, 450. to undisclosed in general, 438, 441, 442, 444, 449, 450, 452, 455, 457, 461, 477, 484. to undisclosed principal as affected by seal on instrument valid without seal, 438. upon payment to agent of undisclosed, 461. upon ratification of executory contract, 378. upon ratification of invalid contract of agent, 326. upon ratification where covenants are mutual, 376. LIENS, construction of power of attorney as creating equitable, 778. I LIQUIDATORS, effect of statutory provisions upon acts, 53. LOBBYING, contract, 61. LUNATICS, See Insanity. M MALPRACTICE, liability of physician, 720. MARRIAGE, as terminating agency for single woman, 767. MARRIED WOMEN, attorneys in fact, 42. compensation of solicitor employed by, 23. delegation of authority, 23. employment of solicitor, 23. engaging in trade, 26. Hability on executory promise, 22. necessity of inquiring into powers of agents, 23. power to appoint agent to sell real estate, 21. power to make bond in judicial proceedings, 25. power to make contracts relating to business, 25. power to sue and be sued, 24. i presumption as to validity of notes, 22. undisclosed member of partnership, 26. 8o8 INDEX. [References are to Pages.] MASTER AND SERVANT, acting without authority as aflfecting master's liability for tort of serv- ant, 269, 275, 279. act of servant driving cart in running down pedestrian, 262. acts of servant, in general, 10. "agent" and "servant" not synonymous, 7. assumption of risk by servant, 633, 639, 644, 645, 650, 653, 665, 669. basis of "department limitation or doctrine of consociation," 581. creation of relation, 266. distinction between agent and servant, 5, 7, 436. duty of master to compensate servant, in general, 526, 527, 531, 534. duty of master to compensate servant upon peremptory termination of relation, 535, 537, 539, 543, 545, 550, 553. duty of master to compensate servant when latter has breached contract of employment, 543. duty of master to provide safe premises and suitable appliances, 633, 639, 644, 645, 650, 653, 665, 669. duty of master to servant, in general, 194. employment of surgical aid for injured employe as acknowledgment of liability to such one, 200. evidence to establish incompetency, etc., of servant, 604, 608. generally governed by same rules as principal and agent, 7. injuries to property caused by driving of servant, 263. injuries to servant caused by negligence of fellow-servant, 563, 570, 572, 574, 577, 582, 586, 590, 594, 596, 604, 608. injuries to servant caused by negligence of vice-principal or superior servant, 615, 620, 624, 630. larceny by servant, 260. master's promise to furnish safe appliances, 653, 665, 669. nonfeasance of servant, 426. objection by servant as to safety of appliances, 653, 665, 669. relation as existing between master and sub-contractor, 285. relation as not existing after completion of day's work, 595. relation responsible for that of principal and agent, 7. servant representative of master in a qualified sense, 10. tort of servant, 9, 279, 284. tort of servant of sub-contractor, 285. tort of sub-contractor, 285. trespass of servant as that of master, 258. trover against master for larceny by servant, 261. MEDICAL AND SURGICAL AID TO EMPLOYES, as acknowledgment of liability to such one, 200. authority of conductor to contract for, 192. who has authority to contract for, 192. INDEX. 809 [References are to Pages.] MIDDLEMEN, brokers as, 61. MISFEASANCE AND NONFEASANCE, act constituting nonfeasance, 421, 423, 426, 428. distinguished, 423, 426, 428. liability of agent to principal for nonfeasance, 423. liability of agent to third persons for, 421, 423, 426, 428. liability of principal for nonfeasance of agent, 426. MORTGAGES, authority to execute, 132. MUNICIPAL CORPORATIONS, authority to execute sealed instrument binding upon, 83. ratification of sealed instrument by parol, 83. N NEGLECT, of agent, liability of principal, 239, 271. NEGLIGENCE, as question exclusively of fact, 663. contributory, as mixed question of law and fact, 666. contributory of injured employe, as entering into right of surgeon to recover for services rendered, 199. of directors of corporation as that of corporation, 635. of fellow-servants, causing injuries to servant, 563, 570, 572, 574, 577, 582, 586, 590, 594, 596, 604, 608. of vice-principals and superior servants causing injuries to servants, 615, 620, 624, 630. personal liability of agent, 428. NEGOTIABLE INSTRUMENTS, See Bills and Notes. NOTICE, as affecting right of person making payment to agent, 223. as affecting right of principal to disaffirm, 358, 359. circumstances insufficient as constructive, of factor's agency for undis- closed principal, 461. effect of constructive, on availability against undisclosed principal of set-off against factor, 457. effect of marking package "C. O. D.," as regards, 227. evidence as to, of revocation of authority, 759. of revocation of agency, 747, 750, 757. 8lO INDEX. [References are to Pages.] NOTICE— Continued. to agent as imputed to principal, 293, 296, 299, 300, 304, 307, 310, 313, 356. to agent as imputed to principal, effect upon of collusion of third per- son, 248, 255, 313. to director or trustee of bank as, to bank, 300, 307. to third persons as relieving agent from personal liability, 415. to vice-president of bank as, to bank, 310. want of, as affecting validity of act following termination of agency by death, 760, 761, 764, 767, 771. want of notice of subsequent incapacity of principal, 768. what constitutes, to master as to incompetency, etc., of servant, 604. 608. NOXAL ACTIONS, nature, 10. NUISANCE, public, personal liability of agent participating in creation, 418. O OPTION, contract construed as agency rather than, 93. giving of, 92. OUTLAWED PERSONS, as attorneys in fact, 42. P PAROL, adoption of acts of agent, 82. authority given agent by, 82. authority to execute deed, 76, 87. authority to fill blanks in deed, 76. authority to make contract of purchase of land as making sealed con- tract binding on undisclosed principal, 462. authority to sell land, 43. establishing liability of undisclosed principal, in general, 449. establishing liability of undisclosed principal on negotiable paper, 467. establishing ownership of promissory note in undisclosed principal, 441, 444. establishing right of undisclosed principal to sue in his own name, 450. establishing undisclosed principal's right in contract, 449. evidence as to intent in signing negotiable paper, 142, 149. evidence as to intent in signing simple contract, 155. evidence to bind principal when agent's name is signed to simple con- tract, 160. INDEX. 8ll [References are to Pages.] FAROL—Cotttinued. evidence to establish ownership in bank of promissory note payable to cashier, 444. ratification of filling blanks in deed, 76. ratification of sealed instrument by municipal corporation, 83. ratification of sealed instrument, in general, 342, 343. revocation of authority, 749. right of agent to charge undisclosed principal alone, 449. right to establish instructions to agent under written contract, 680. right to obviate uncertainty as to whether undisclosed principal or agent is bound by simple contract, 471. PARTIES, to contract of agency, competency, agent, 39, 41, 42, 44, 46, 50. to contract of agency, competency, principal, 15, 18, 21, 22, 23, 25, 27, 34, 36, 38. PARTNERSHIP, appointment of agent or attorney by partner, 38. authority to accept bill for member of, 114. eflfect of ratification of contract making principal, member of, 371. insanity of partner as dissolution, 769. law of agency as that of, 83, 475. liability of clerk purchasing as ostensible partner, 511. liability of dormant partner as affected by secret restrictions upon active partner, 475. liability of retiring partner after notice to agent of seller, 304. one partner as agent of other, 82. personal liability to third persons of agent acting as partner, 519. ratification by one partner of negotiable paper executed in firm name by other, 366. ratification of infant's partner's contract, 18. PAYMENT, authority of salesman to receive for principal, 221. implied authority in salesman to receive, how shown, 222. ratification when money received through mistake of fact has been re- turned, 375. to agent as payment to principal, 202, 206. to agent of undisclosed principal as payment to latter, 461. to salesman as payment to principal, 221. validity to agent after death of principal, 761. PERSONAL INJURIES, liability of principal for, inflicted by agent, 258, 260, 262, 263, 265, 269, 275, 279. 8l2 INDEX. [References are to Pages.l PERSONS OF UNSOUND MIND, See Insanity, PHYSICIANS AND SURGEONS, knowledge and skill required of, 720. liability for malpractice, 720, 736. liability for malpractice as dependent upon charging of fee, 736. PLEADING, by agent asserting personal nonliability, 393. by agent to enforce implied promise of indemnity, 560. by broker for commissions, 530. by employe for breach of contract of employment, 536. by servant injured following promise of master to make machinery safe, 669. for compensation of deceased agent under contract of employment, 557. POWER OF ATTORNEY, authority to execute assignment for benefit of creditors, 118. authority to execute mortgage and mortgage note, 132. authority to sign liquor license remonstrance, 166. by infant, 17, 19. construction, in general, 112, 114, 119. coupled with interest, 778. creating equitable lien, 778. death of principal as revocation of irrevocable, 770. executed by lunatic, 27. executed by partner, 38. extent, how settled, 183. extent of authority, conferred, 210, 393. form and requisites of revocation, 749. presumptions springing from, 356. ratification of forged, 331. termination by execution, 776. to convey land, construction, 121. to execute bills and notes, 122. to execute sealed instrument, 82. unilateral, 747. when irrevocable, 771, 775. PRESUMPTIONS AND IMPLICATIONS, agency, in general, 42. agency of wife for husband, 44. agent acting in private business, 386. agent acting in public business, 386. agent's authority, in general, 188, 214, 216, 280. INDEX. 813 [References are to Pages.] PRESUMPTIONS AND IMFLICATIOXS— Continued. apparent authority is real authority, 229. assumption by servant of risks of known incompetency, etc., of fellow- servants, 638. authority as to right of railroad conductor to remove trespasser, 277. authority conferred upon brokers, 181. authority of agent to fix compensation of sub-agent, 190. authority of broker to sell, 229. authority of railroad conductor, 198. authority of special agent, 188. authority to buy from authority to sell, 228. authority to draw bill, 207. authority to make representations concerning property as implied from authority of lease, 247. authority to receive pa3'ment, 202, 206. contract of servant assuming risks of employment, 638. contributory negligence of injured servant, rebuttal, 662. credit being given agent rather than foreign principal, 388. delegation of authority of bank to collect negotiable paper, 179. exact limits of authority of railroad conductor, 198. fraud in sale by agent to principal, 706. from method of signing promissory note, 141. full authority from custom of buying and selling, 228. general authority from general employment in specific capacity, 233. intent of agent in signing negotiable paper, 151. intent of private agent to bind himself, 395. intent of public or private agent in exceeding authority, 395. invalidity of transaction whereby agent obtains benefit, 702. knowledge of principal from notice to agent, 293, 296, 299, 300, 304, 307, 310, 313. knowledge that broker receives compensation from both parties to transaction, 61. negligence of superior causing injuries to servant, 580. person taking negotiable paper on credit of signer, 465. possession by factor or broker as authority to pledge, 230. power of corporation to contract, 35. power to delegate authority, from circumstances, 175. promise of indemnity to agent, 559. ratification from accepting benefits for long time, 356. ratification from silence of principal, 363. ratification of acts of agent during suspension of authority, 768. revocation of authority, from circumstances, 749. right of servant to assume that master will provide safe appliances, 661. springing from power of attorney, 356. 8l4 INDEX, [References are to Pages.] PRESUMPTIONS AND IMPLICATIONS— ConfmM^d that employe under breached contract of employment afterwards ob- tained highest wages possible, 537. undertaking of gratuitous agent to insure, 736. validity of note of married woman, 22. PRINCIPAL, ability to act through agent, 40. act of agent as act of, 222. acts within agent's authority as binding upon, 222. agency not created except by will of, 95, 102. agent as, 40. as bound by act of special agent, 233. as bound by act of sub-agent, 172. as bound by act within apparent authority of broker, 229. as bound by declarations and admissions of agent, 317, 319, 322. as bound by statements of agent, 200. authority to bind, by sealed instrument, 83. binding, in execution of note, 140. consent of, to delegation of authority, 172, 178. covenants in deed as those of, 131. death as evidence of revocation of authority, 750. death as revocation of agency, 760, 761, 764, 767, 771. death as revoking irrevocable power, 770. effect of presence at execution of agency, upon authorization of agent, 87. estoppel by indorsement of sub-agent, 186. estoppel by ratification of forged signature, 336. estoppel to deny agency, 102, 103, 219, 222, 228, 233. factor as, 171. implications as to authority of agent from conduct of as question for jury, 109. insanity as revoking authority of agent, 768. manner of executing contract by deed to bind, 440. manner of showing intent to appoint agent, 102. marriage of single woman as termination of agency for her, 767. mutuality of contract as affecting right of, to revoke authority, 748. notice to agent as notice to, 293, 296, 299, 300, 304, 307, 310, 313, 356. partnership relation governed by same rules as agent and, 83. power of agent to bind, by instrument in writing, 87. relation of agent and, closely allied to that of servant and master, 7. right in undiscovered agency, 213. right of undisclosed bailor to sue in his own name, 452. right of undisclosed, to claim benefits of agent's act, 477. right of undisclosed, to sue on contract, 438, 441, 442, 449, 450, 471. INDEX. 815 [References are to Pages.] PRINCIFAL— Continued. rights and liabilities upon written instruments executed by agent, upon what dependent, 451. right to revoke authority of agent, in general, 744, 771. right to revoke authority to sell as affected by "exclusive" or "irrev- ocable" grant of power, 748. right to revoke authority to sell land, 746. right to sell to agent, 703. rules as to servant and master as controlling relation of agent and, 7. sale by, as revocation of authority to sell, 748. senseless condition of, in extremis as terminating authority, 766. signature, in his presence and at his request, by agent, 134. signing of simple contract with reference to binding, 157, 158. undisclosed, as affected by seal on instrument valid without seal, 438. who can be, 15, 18, 21, 22, 23, 25, 27, 34, 36, 38, 39. written contract as binding upon foreign, 388. wrongful act of, as that of agent, 415. PROCURATION, acceptance of negotiable paper, 114. PROFESSIONAL SERVICES, See Attorneys at Law; Physicians and Surgeons. PROMISES, nude, 747. PUBLIC AGENT, personal liability of, acting in public business, 383. who is, 384. PUBLIC POLICY, See Illegal Agencies. Q QUESTIONS FOR COURT, negligence, 663. negligence, contributory, 666. relevancy of evidence as to intent in signing negotiable paper, as, 144. QUESTIONS FOR JURY, assumption of risk by servant, 652. evidence insufficient to take question as to negligence of master in taking incompetent servant into employ to jury, 608. exercise of diligence and skill by agent, 717. implications as to authority of agent from contract of principal, 109. 8l6 INDEX. [References are to Pages.] QUESTIONS FOR JVRY— Continued. knowledge of limitations upon authority, 220. negligence, 663. negligence, contributory, 666. sufficiency of evidence as to negligence of master in employing incom- petent servant, 602. vi^aiver by servant of defects in machinery, 667, 671. R RAILROADS, admissions by engineer, 319. authority of conductor of train, in general, 192. authority of conductor of train to employ surgical aid for injured brakeman, 192. authority of conductor to remove trespasser, 277. conductor of train as general agent, 198. effect of undisclosed limitations upon authority of general freight agent, 220. employe of, when not a passenger, 590. implied authority of general freight agent to promise cars, 216. liability for surgical aid rendered employes, 192. liability for tort of agent of sub-contractor, 285. liability for tort of conductor, 275. liability for tort of sub-contractor, 285. liability on fraudulent and collusive bill of lading, 248, 255. measure of damages in action by railroad superintendent on breached contract of employment, 539. RATIFICATION, accommodation, 366. acquiescence after notice as, 359, 361. act of agent done while principal was minor, 340. act of agent during suspension of authority, 768. act of agent following revocation of authority, 752. attempted, of fraudulent indorsement, effect, 328, 332, 336. burden of proving, 346. by acceptance of benefits, 354, 358, 359. by bringing assumpsit on contract, 349. criminal act, 328, 332, 336. effect, in general, 82, 334, 337, 350, 356, 366, 370, 371, 375, 376, 378, 381. effect of ignorance, mistake, or misapprehension, 345, 348. effect, on contract making principal, partner, 371. effect, on executory contract, 378. effect, on voidable contract of infant, 19. forged power of attorney, 331. INDEX. 817 [References are to PagesA RATIFICATION— Continued. forged signature on negotiable instrument, 328, 332, 336. illegal contract, 327. invalid contract of agent of state, 326. liability of principal in trover for larceny by agent as depended upon, 261. nature, 323, 346. necessity of ratified act being done by avowed agent of ratifier, 347. of contract, must be of same in entirety, 349, 364. of infant's partner's contract, 18. of payment when money received through mistake of fact has been returned, 375. of sealed instrument by municipal corporation by parol, 83. of tort, 337. of unauthorized negotiable paper signed in principal's name per that of agent, 378. parol, of acts of agent, in general, 82. parol, of filling blanks in deed, 76. parol, of sealed instrument, 342, 343. proper parties to ratify contract, 325. relation back, 334, 339. requisites, 340, 342, 343, 345, 347, 349, 354, 358, 359, 361, 364. validity as not dependent upon communication, 381. what acts can be ratified, 323, 324, 326, 328, 332, 336, 337. what constitutes, in general, 335. what constitutes, of contract tainted with fraud, 323. when covenants are mutual, 376. REAL ESTATE AGENTS, See Brokers. RECEIVER, agent within Kansas statute on embezzlement, 1. REIMBURSEMENT, duty of principal to reimburse agent, 558, 561. RELATION BACK, of ratification, 334, 339. REMEDIES, against innocent principal for fraud and deceit of agent, 242. against one who fraudulently acts as agent to another, 396. manner of enforcing personal liability of agent, 406. of agent on implied promise of indemnity, 559. 52 — Reinhard Cases. 8l8 INDEX. {References are to PagesJ\ 'RRU.EDIY.S— Continued. of employe under breached contract of empIojTnent, 538. to enforce personal liability of agent, 412. trover against principal for larceny by agent, 260. trover by principal against agent, 677, 686. REPUDIATION, necessity of prompt, 355. of contract, must be of same in entirety, 349, 364. one ground as efifectual as many, 356. RES GEST^, declarations of agent to bind principal must be part of, 190. RESPONDEAT SUPERIOR, application of doctrine, 265, 280. basis of rule of, 265. doctrine of as applicable when brakeman is injured through negligence of his engineer, 580. REVOCATION OF AUTHORITY, assumption of risk, 751. compensation of agent, 746. effect as to third persons, 757. evidence, 750. evidence as to notice, 759. form and requisites, 749. implied from circumstances, 749. imposing liability upon principal for damages to agent, 755. liability of principal for act of agent following, 750. mutuality of contract as essential to non-revocability, 748. notice, 747, 750, 757. operation and effect, 751. parol, 749. power to revoke authority to sell land, 746. ratification of act of agent following, 752. right to revoke, 744, 771. sale by principal as, to sell, 748. to sell, right to revoke as affected by "exclusive" or "irrevocable" grant of power, 748. RIGHTS OF THIRD PERSONS, accepting unauthorized negotiable paper, 394. as to principal in undiscovered agency, 213. parties to unauthorized acts of agent, 234. to rely upon apparent authority of agent, 200. , upon acceptance executed by agent, 116. INDEX. 819 [References are to Pages.] SAFE PREMISES AND SUITABLE APPLIANCES, duty of master to provide, 633, 639, 644, 645, 650, 653, 665, 669, SALES, agent of seller as purchaser or agent of purchaser, 752. authority of factor to make, on credit, 224. concurrent liability of agent and undisclosed principal on purchases by former, 490. election between enforcing liability of agent and that of undisclosed principal for purchases, 490. implied authority of broker to make, 229. liability of agent purchasing as ostensible principal, 511. liability of innocent seller for deceit of agent, 241. liability of undisclosed buyer, 469. liability of undisclosed principal for unauthorized purchases of agent, 474. personal liability of broker for purchase money, 522. personal liability of commission merchant for breach of warranty of goods sold, 513. right of undisclosed principal in written contract, 450. seller as agent of buyer after latter's default, 100. SCOPE OF AUTHORITY, See Authority. acting without, as affecting liability of principal for tort of agent, 269, 275, 279. acts of special agent to bind principal must be within, 233. apparent, as real, 477. effect of exceeding, in general, 108, 211. effect of special agent's exceeding, 215, 482. false representations to bind principal must be within apparent scope of authority, 246. homicide as within, of agent, 284. includes what, 247. of general agent, 108, 220. under general employment in specific capacity, 233. SEAL, effect on right of undisclosed principal to sue in his own name, 450. necessity on authority of one partner to bind another by sealed instru- ment, 82. necessity on authority to bind municipal corporation by sealed instru- ment, 83. necessity on authority to execute sealed instrument, 82. 820 INDEX. [References are to Pages.^ SEAL — Continued. necessity on ratification of sealed instruments, 342, 343. on instrument valid without, as affecting rights of undisclosed prin- cipal, 438. use of private, in making contract for corporation, 84. SEALED INSTRUMENTS, authority of one partner to bind another by, 82. authority to bind municipal corporation by, 83. authority to execute, 75, 81, 85, 392. employment of servant by wife under, 84. execution of authority as to, 124. form and requisites of revocation of authority under seal, 749. liability of undisclosed principal on sealed contract, 462, 464. manner of executing deed so as to bind principal, 440. parol authority to execute, 83, 87. parol authority to execute deed, 76. ratification to be under seal, 342, 343. right of undisclosed principal to bring action upon, 438, 441, 450. right to construe sealed, as simple contract, 462. signing by agent, 125, 127. SERVICE, difference between agency and, 7. SET-OFF AND COUNTERCLAIM, against factor as available against undisclosed principal, 455, 457. against undisclosed principal as available in suit by agent, 456. SIGNATURE, best mode of agent's signing or indorsing note to bind principal, 140. burden of proving effect, when words descriptio personarum are used, 162. construction, on mortgage and mortgage note, 132. effect of words descriptio personarum accompanying agent's own name, 124, 127, 129, 130, 132, 136, 139, 148, 149, 157, 158, 162, 440. negotiable paper signed in agent's name, 138. of attorney in fact to deed, 132. parol evidence as to intent in signing negotiable paper, 142, 149. parol evidence as to intent in signing simple contract, 155, 160. relevancy of evidence as to intent in signing negotiable paper, as discre- tionary with court, 144. to sealed instrument, 125, 127, 132. to simple contract, 137, 157, 158. SIMPLE CONTRACT, See Contract. SLAVES, as agents, 40, 41. SOLICITORS, INDEX. 821 [References are to Pages.] See Attorneys at Law. SPECIAL AGENT, acts as binding upon principal, 13, 233. defined, 11, 108, 199. distinguishable from general, 13, 482. duty to ascertain authority, 214, 233, 482. eflfect of exceeding authority, 215. effect of private instructions, 215. implied authority, 188. liability of undisclosed principal on unauthorized contract, 477. same person may be, for same principal in several different matters, 6. to sell land, modes and means of executing authority, 184. SPECIALTY, See Sealed Instruments. SPECIFIC PERFORMANCE, right of undisclosed principal, 471, STATES, ratification of invalid contract of agent, 326. STATUTE OF FRAUDS, application to creation of agency, 56, 85. as affecting ratification of sealed instruments, 342, 343. as affecting right to establish fact that undisclosed principal is entitled to benefits by parol, 473. as requiring principal to be disclosed in contract, 449. STATUTES, 3 and 4 Anne, ch. 9, § 1, as affecting right of undisclosed principal to sue on promissory note, 444. effect of statutory provisions upon acts of agents, 53. ratification by statute of contract prohibited by, 326. receiver as agent under Kansas statute on embezzlement, 1. SUB-AGENT, acceptance of negotiable paper, 173. acts as binding upon principal, 172. authority of agents of a town to prosecute suit to appoint, 177. authority to employ, in general, 172, 176. authority to indorse negotiable paper, 185. 822 INDEX. [References are t^o Pages.] SUB-AGENT— Continued. estoppel of principal by indorsement, 186. execution of agency, 171. implied right of agent to fix compensation of sub-agent, 190. what constitutes delegation of authority to indorse negotiable paper, 136. SUB-CONTRACTOR, liability of principal for tort, 285. liability of principal for tort of servant of, 285. SUBSCRIPTION, payee assuming to act as agent for payer, 56. SUITABLE APPLIANCES AND SAFE PREMISES. duty of master to provide, 633, 639, 645, 650, 653, 665, 669. SURETIES, of agent as not bound for default after expiration of agency, 739. wife for husband, 80. SUSPENSION OF AUTHORITY, when suspended, 766. TERMINATION OF AGENCY, assumption of risk, 751. by death of principal, 550, 760, 761, 764, 767, 771. by execution of power, 776. by insanity of principal, 768. by operation of law, 760, 761, 764, 766. by parol, 749. by revocation of authority, 744, 746, 749, 750, 751, 755, 757. by senseless condition of principal in extremis, 766. by terms of agreement, 739, 741. compensation of agent, 746. construction of contract, 739, 741. effect as to third persons, 757. evidence, 750. evidence as to notice, 759. form and requisites, 749. for single woman by marriage, 767. implied from circumstances, 749. irrevocable agency by death of principal, 770. irrevocable agency, in general, 770, 775, 776. knowledge of agent, 761. INDEX. 823 [References are to Pages.] TERMINATION OF AGENCY— Continued. liability of agent to third persons for act done following, 763, 765. liability of principal for act of agent following, 750, 757, 760, 761, 764. liability of principal to agent for damages, 755. meaning of "coupled with an interest," 748, 772. mutuality of contract as affecting right to terminate, 748. notice, 747, 750, 757. nude promises, 747. operation and effect, in general, 751. ratification of act of agent following, 752. revival of terminated prior agency, 743. right of principal to terminate agency to sell land, 746. right of principal to terminate, in general, 744, 771. sale by principal as, to sell, 748. sale of property as evidence, 750. sureties of agent as not bound for default after expiration of agency, 739. to sell, right to terminate as affected by "exclusive" or "irrevocable" grant of power, 748. validity of payment to agent after, 761. when irrevocable, 771, 775. wife for husband, 766. TITLE, notice to agent as notice to principal, 296. TORTS, agent as guilty of conversion, 677, 686. of agent, adoption by principal, 337. of agent, liability of principal, in general, 235, 237, 241, 243, 248, 255, 258, 260, 262, 263, 265, 269, 275, 279, 284. of agent, ratification by principal, 337. liability of principal to third persons following judgment by latter against agent for fraud, 487. TOWNS AND TOWNSHIPS, acts of people of township not amounting to ratification, 325. authority of agents of town appointed to prosecute suit, in general, 177. delegation of authority by agents of town to prosecute suit, 177. ratification by board of highway commissioners of contract of one of its members, 324. TRESPASS, of agent as that of principal, 258. 824 INDEX. [References are to Pages.] TROVER, agency as defense to action of, 415. as maintainable by principal against agent, 677, 686. TRUSTS AND TRUSTEES, liability of trustee on covenants in excess of authority, 130. liability of trustee purchasing in his own name while in performance of his office, 694. U ULTRA VIRES, acts of agent as binding upon principal, 124, 236, 237, 241. contract, effect of ratification, 356. UNIVERSAL AGENCY, creation, 112. never inferred from general expressions, 13, 112. UNIVERSAL AGENT, clearly distinguishable from general, 12. defined, 11. USAGE, See Customs and Usages. V VENDOR AND PURCHASER, authority to make covenants in sale of land, 183. liability of undisclosed principal to vendor in sealed executory agree- ment to convey, 463. notice to agent of vendor as to title as notice to vendor, 296. right of undisclosed vendee to sue for specific performance, 471. sale by one agent as precluding another from exercising power, 751. sale of property as evidence of revocation of authority, 750. VICE-PRINCIPALS AND SUPERIOR SERVANTS, applicability of doctrine, 615, 620, 624, 630. as fellow-servant, 630. "captain" of dredge and deck hand, 624. car repair foreman and car repairer, 615. conductor and others employed on train, 627. express agent and handler of goods, 630. foreman, 628. liability of master for injuries to servant caused by negligence of, 615, 620, 624, 630. INDEX. 825 [References are to Pages."] VICE-PRINCIPALS AND SUPERIOR SERVANTS— Con^mw^rf. mining or driving boss and those working with or under him, 628. superintendent of construction train and common laborer on construc- tion work, 620. who are, in general, 615, 620, 624, 628, 630. W WAIVER, by servant of defects in machinery, as question for jury, 667, 671. of right to disaffirm invalid contract, 358. WAR, appointment of agent by resident of territory in rebellion, 40. appointment of agent in territory of enemy, 37. effect upon agencies, 40. principal and agent residing in territory of opposing belligerents, 37. WARRANTY, authority to make, how arising, 245. of authority as broken by infancy of principal, 414. "warranty" and "representation" as not synonymous, 245. WIFE, agent for husband in executing accommodation paper, 109. agent for husband in purchase of necessaries, 45. authority to employ servant by sealed instrument, 84. business of, as that of husband, 45. business of husband's liability for contracts made in, 45. capital advanced to husband, effect, 26. engaging in trade, 26. estoppel of husband to deny agency, 109. fraud of husband as that of, 313. husband as agent, 26. husband as attorney in fact, 75. in business, as agent of husband, 45. liability of capital advanced by, for husband's trade debts, 26. presumption as to agency for husband, 44. surety for husband, 80. termination of authority as general agent of husband, 766. undisclosed member of partnership, 26. WITNESSES, See Authority. 826 INDEX. [References are to Pages.] WORDS, "agent" and "servant" neither synonymous nor interchangeable, 7. construction in simple contract as to binding of principal, 158. construction, used in creating agency, 112. construction, used in executing authority, 140. construction, used in power of attorney to execute bills and notes, 123. descriptio personarum, effect, 124, 127, 129, 130, 132, 136, 139, 148, 149, 157, 158, 162, 440. fee of attorneys at law as "current wages," 526. found in power of attorney, construction, in general, 119. meaning of "coupled with an interest," 748, 772. "ordinary and reasonable care and diligence" as having an exactly de- fined meaning in law, 639. sufficient to confer authority to make covenants in sale of land, 183. "we," in promissory note signed in agent's own name, 151. WRITING, authority of agent to bind principal by instrument in, 87. necessity in conferring authority to fill blanks in deed, 76. unnecessary to confer authority upon agent, 43. WRONG-DOERS, as between principal and agent though act of former may be mala fide that of latter may be bona fide, 560. WRONGFUL ACT, See Torts, agent as guilty of conversion, 677, 686. liability of master for wrongful act of servant, 279. liability of principal to third persons following judgment by latter against agent for fraud, 487. of agent, liability of principal, 235, 237, 241, 243, 248, 260, 262. 269, 275, 279, 284. of principal as that of agent, 415. ratification, in general, 337. ratification of invalid contract by bringing action of assumpsit, 349. UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 834 205 7