- •Introduction.
- •Introduction. 5
- •Identity,! but with the growth of individualism and the
- •1 O. W. Holmes, Jr., 4 Ilarv. Law Rev. 345; 5 Ihid. 1. But see 2
- •2 Post, в§ 55.
- •6 Agency.
- •Voluntary primary obligations and their correlative rights.
- •Introduction. 7
- •In our English law has an eventful future before it, the ' use,
- •8 Agency.
- •Is estopped to deny the agency (for there is no holding out as
- •Introduction. 9
- •10 Agency.
- •1 Donovan V. Laing, (1893) 1 q. B. 629.
- •2 Quinn V. Complete Electric Const. Co., 46 Fed. Rep. 506; Huff V.
- •8 Post, в§ 86.
- •Introduction. 11
- •In the performance of an operative or mechanical act of ser- •
- •Vice not resulting in the creation of a voluntary primary obli-
- •Inducing a third person to act. A servant may cause damage
- •In representation through a servant, there are only two per-
- •In sequence upon the primary one. The agent, by influencing
- •12 Agency.
- •Is estopped to deny its truth. In deceit, the matter is not so
- •In tort for negligence. Bigelow on Torts, 7th ed., в§в§ 54-56.
- •Intkoducticn. 13
- •In this, that it arises from a voluntary representation by one
- •Ing, the obligation is created voluntarily by the one making
- •Important to note here is the fact that the distinction between
- •1 Ames, Hist, of Assumpsit, 2 Harv. Law Rev. 15.
- •8 Ibid. P. 16.
- •If he had acted immediately instead of mediately. In such a
- •It has been contended that we must seek the basis of
- •Introduction". 15
- •16 Agency.
- •Is within the course of the employment, is an incident which
- •Ing promises or representations to third persons calculated to
- •Induce them to change their legal relations.
- •18 Agency.
- •Is applicable except where a third person is induced to change
- •Voluntary or involuntary.
- •Ity to drive the horse to a designated place, he is a servant in
- •Introduction. 19
- •Is as above stated." — Dwight, Persons and Pers. Prop. P. 323. See
- •1 Sometimes (a) is given as the correct definition, sometimes (b), and
- •2 Sometimes the definition is given with, and sometimes without, the
- •20 Agency.
- •Inquire whether the agent has really or apparently been en-
- •Is an agent whose powers are fixed by the customs of a trade
- •9 Wall. (u. S.) 766.
- •2 Holland, Jurisp. (9tli ed.) p. 200; Dwiglit, 1 Col. Law t. 81.
- •Introduction. 21
- •22 Agency.
- •In cases where the representative acts as for himself and not
- •Ing the relation, this part will also discuss the methods by
- •It should also be noted that much, but not all, of what
- •Implied whenever he undertakes to act for another; and his
- •1. Agency hy Contract.
- •If the agent will render a service. The promise may be ex-
- •In its absence an implied agreement may be inferred. Strictly
- •1 Muscott I'. Stubbs, 24 Kans. .520 ; McCrary V. Ruddick, '33 Towa, 521.
- •2 Hertzog V. Hertzog, 29 Pa. St. 4g5; Hall V. Fincli, 29 Wis. 278.
- •6 Dearborn V. Bowman, 3 Mete. (iMass.) 155; Hicl.S V. Burhans, 10
- •Is not clear.I Moreover, as to third persons, the question
- •Is void.* It is admitted that the exception, if it be one, is not
- •Insane to the knowledge of the agent, but unknown to the
- •1 Drew V. Nunn, l. R. 4 q. B. D. 6g1; Davis l: Lane, 10 n. II. 156;
- •3 Weisbrod c Chicago, &c. R , 18 Wis. 35.
- •Is necessary will not bring the appointment within this rule.*
- •It seems that parol authority to one to fill in the name of the
- •2 Tillier V. Whitehead, 1 Dull. (Pa.) 2g9 ; Lucas V. Bank, 2 Stew.
- •8 Post, в§ 185.
- •Itous relationship is created between the agent and the sub-
- •In tlic nature of a ratification of the act, and is intended to
- •In question, and the ratification operates as an extension of
- •1 Post, в§в§ 42-44.
- •16 Cal. 501; Grant V. Beard, 50 n. H. 129; Dempsey V. Chambers, 154
- •1. Elements of Ratification.
- •Very near the line of ratification, but is distinguishable from
- •If a. Makes a contract in the name and on 1)ehalf of b., c.
- •2 Hagedorn r. Oliverson, 2 m. & s. 485.
- •8 Foster V. Bates, 12 u. & w. 226 ; Lyell V. Kennedy, 14 App. Cas.
- •6 Brainerd V. Dunning, 30 n. Y. 211.
- •Implied. (2) Silence is not (ordinarily) assent. (3) Assent
- •Impliedly adopted the act, the conduct relied on to establish
- •Ing as the principal knows or does not know the facts to
- •Ized agent in the mean time will bind the purchaser to his
- •Infancy), then clearly the act could not have been authorized
- •It has already been seen that, with the exception of a few
- •2 Pollock V. Cohen, 32 Oh. St. 514; Taylor V. Robinson. 1 1 Cal. 306;
- •610; Irvine V. Union Bank, 2 App. Cas. 306.
- •6 Milford V. Water Co., 124 Pa. St. 610.
- •2. Legal Effects of Ratification.
- •Innocent, which induces the principal to ratify, will involve tlie
- •1 Sherrod V. Laugdon, 21 Iowa, 518 ; Poillou V. Secor, Gl n. Y. 456.
- •Ing notice of his withdrawal to those who had previously been
- •160; Ewart on Estoppel, pp. 83-97.
- •2 Kwart on Estoppel, pp. 83-97.
- •8 First n. B. V. Cody, 93 Ga. 127.
- •If it is made to another, and intended or expected to be com-
- •Is, of course, necessary that there should be some representa-
- •If he has justified the belief of a third party that the person
- •It is no answer for him to say that no authority had been
- •1 Post, в§в§ 1o0-116.
- •2 Ante, в§в§ 4-5; pout, в§ 243.
- •6 Bank of Hatavia V. New York, &c. R., 106 n. Y. 1 в– "': Haskell V.
- •It is admitted that a shipping clerk has authority to certify
- •Is, certify checks or issue bills of lading ; in each case the
- •Ignorance must not be the result of his own negligence or
- •1 Ewart on Estoppel, pp. 18-27, 28-67.
- •2 Post, в§в§ 102-116; в§в§ 149-157.
- •Vendee with the difference between the contract price and the
- •It is clear upon principle, that since the authority is con-
- •1 MacBeath r. Ellis, 4 Bing. 57s ; Butler V. Knight, l. R. 2 Ex. 109.
- •2 Seton V. Slade, 7 Ves. 265.
- •6 Post, в§в§ 79-81.
- •Ity was originally conferred by a formal instrument.* The
- •Various. If tlie principal, after conferring the authority, but
- •If tlie agency is to endure for an indefinite period, or is an
- •Implied agreement that the agency is to endure for a definite
- •3. By Operation of Law.
- •Insanity has been judicially declared, the decree of the court
- •1 Iluffcut's Alison on Cont. Pp. 431-432; Read V. Anderson, 10 q. B.
- •8 Hess V. Ran, siipj-a.
- •It being assumed that the relation of principal and agent
- •92 RiilNcii'al and agent.
- •1. The duty to comjjensate the agent.
- •2. The duty to reimburse the agent.
- •3. The duty to indemnify the agent.
- •Inference, arising from the relation of the parties, is that the
- •Vices are competitive, or are rendered on the chance of future
- •If the service was unauthorized but is subsequently ratified
- •If the revocation of the agency be not a breach of the
- •Ity on part of the agent. In either case the impossibility in
- •If an infant renounce his employment, he may nevertheless
- •If, however, the province of the agent is merely to bring
- •If the loss is due to the agent's own negligence or default
- •1 Post, в§ 97.
- •In sending it to b, since he had no right of choice whatever
- •In general, the same rules apply to a breach of the contract
- •It is the duty of an agent to keep his principal's money and
- •It in cases where such enforcement would be in direct viola-
- •In all matters involving judgment, skill, or discretion, it is
- •If an agent in breach of his duty to act in person commits
- •2 AVhite V. Proctor, 4 Taunt. 209 ; Haluptzok V. Great Northern Ry.,
- •55 Minn. 446.
- •125 X. Y. 57; Carpenter V. Gernmn Am. Ins. Co., 135 n. Y. 298.
- •109 Pa. St. 422; Daly V. Bank, 56 Mo. 94; First n. B. V. Sprague, 34
- •2 Ayrault V. Pacific Bank, 47 n. Y. 570 ; Bank V. Butler, 41 Oh. St.
- •8 Dun V. City n. B., .58 Fed. Rep. 174, where it was held that one who
- •1 Xational Cordage Co. R. Sims, 44 Neb. 148; ante, в§ 2.
- •2 Thorne V. Deas, 4 Johns. (X. Y.) 81, where the subject is exhaus-
- •Is accustomed to use in his own like affairs ; (2) how much
- •Is liable for the want of that care and prudence " that men
- •1 Swentzel V. Penn Bank, u7 Pa. St. 140; Bank V. Bossieux, 4 Hughes
- •2 Ilun V. Gary, 82 n. Y. 65.
- •111. 247 ; Williams V. McKay, 40 n. J. Eq. 189.
- •1 Hun V. Gary, 82 n. Y. 65; Williams V. McKay, 40 n. J. Eq. 189.
- •1. In Agencies generally.
- •It depends upon a consideration of the rights of the public
- •Ity. This consideration leads to the conclusion that where
- •2 See Chapters II. And V., ante.
- •Is a question of fact. It is sometimes said that where the
- •In the ordinary course of a trade, business, or profession, and
- •Instructions to the agent, intended to limit the ostensible
- •If a special agent exercise the power exhibited to the public
- •1 Ilatcli r. Taylor, 10 n. II. 538, 548.
- •2 Howell V. Graff, 25 Nel). 130; Byrne V. InIassasoit Packing Co., 137
- •It is better that an individual should occasionally suffer fi-om
- •Is not responsible for the veracity and accuracy of the agent's
- •In others still, to determine them becomes a question of mixed
- •Inference that the agent has certain powers, and if so the
- •Ized to sell realty as well as to those authorized to sell
- •Incidental to the transaction, as, to fix the terms, and, if
- •Insured, since the latter cannot be held to anticipate that
- •Voidable at the election of the principal. "' Any agreement or
- •1 Ante, % 96.
- •150 Principal and tiiiiid pakty.
- •In the sale of similar goods '/' to receive payment in a sale
- •1 Carnochan V. Gould, 1 Bailey (s. C), 179; Howard V. Chapman,
- •152 RuiNoir.VL and ttiikd I-autv.
- •Is much narrower than that of a factor. He must obey in-
- •Very wide discretion in their management. All the usual and
- •Implied or customary authority and will bind the client.
- •1 Cockcroft V. Muller, 71 n. Y. 367.
- •8 Matter of GoodelC 39 Wis. 232; In re Day, 181 111. 73.
- •Validity of a lien, for which a decree of sale has already been
- •Indorse and transfer for collection, discount, or sale the nego-
- •In order to make clear the outlines of a difficult branch of
- •1. The Doctrine of Privity of Contract.
- •2 Boston Ice Co. I'. Potter, 123 Mass. 28 ; Boultou V. Jones, 2 II. & n.
- •Venience, namely, that " it accords the remedy to the party
- •1 McDowell V. I.Aev, 35 Wis. 171.
- •2 Lehow V. Simonton, 3 Colo. 3i0 ; Wood I-. Moriarty, 15 r. I. 518.
- •8 See Huffcut's Ausou on Coiit. Pp. 279-282; Ilaniman on Cont.
- •1 Cothay V. Feunell, 10 b. & c. 671.
- •1G2 prinCirAl and tiiikd party.
- •Is not admissible to introduce into a sealed instrument or
- •In that I'ospect. It rests upon the anomalous docti'ines
- •It is established that the defendant was the real j)rincipal,
- •025; Ilubburd V. Tonbrook, 124 Pa. St. 291 ; Schendel V. Stevenson, 153
- •Is obvious, however, that this is all sheer assumption and
- •1 AVatteau V. Fenwick, supra, per Wills, j. See criticism in 9 Law q.
- •168 RiiiNCirAi. And tiiikd takty.
- •Is made by the seller, either by words or conduct, the seller
- •Versy therefore is as to whether settlement in good faith
- •In the former case the right of set-off which might be asserted
- •Is equally applicable to contracts other than those for the sale
- •In his own name, since parol evidence would l)e inadmissible
- •Istence or non-existence of some fact (other than the two named
- •Is offered, and secondarily upon the relation of the admission
- •In evidence against the principal, eitiier (1) to establish the
- •08 Mo. 418; Buller V. C, b. & q. Ry. Co., 67 Iowa, 206.
- •It is therefore improper to charge a jury that they may find
- •It is said that the declaration of an agent to be competent
- •In which tiie agent was acting for his princi])al ; (a) it must
- •1 1 Greenleaf on Ev. В§ 113; Fairlie V. Hastings, 10 Ves- Jr. 123; Bar-
- •In the conduct of a transaction for his principal is treated
- •Is stated very clearly in the leading case of White V.
- •1 Great w. Ry. V. Willis, 18 c. B. N. S. 748; Stiles V. Western r., 8
- •2 Peto V. Hague, 5 Esp. 134 ; Baring V. Clark, 19 Pick. (Mass.) 22c ;
- •35 Kans. 412.
- •199 ; Burt V. Palmer, 5 Esp. 145 ; Webb V. Smith, 6 Colo. 365.
- •In cases of pure tort in which no doctrine of estoppel is
- •In connection with such torts, where the servant's declaration
- •Is uncertain. The courts have shifted the line in accordance
- •Identity all the knowledge present in the mind of the agent,
- •It hapi)ens that a possesses information affecting the trans-
- •It therefore follows that as to notice acquired by the agent
- •In the course of the transaction in respect of which the notice
- •Is invoked, the principal is bound as fully as if he acquired
- •Is continuous, and concerned with a business made up of a
- •It is the rule that whether the principal is bound by contracts
- •2 Cave r. Cave, 15 Cli. Div. G:!!); Barnes V. Trenton Gas Light Co., 27
- •8 Frenkel V. Hudson, 82 Ala. 158.
- •Voked, for as is said in one case : " a corporation cannot see
- •Individuals and corporations is governed by the same limita-
- •Ing which he has notice, the corporation is charged with his
- •Is held that the master is liable for every wrong committed
- •Inquiry may be whether it was for the master's benefit.
- •1 For a discussion of the meaning and definition of " tort," see Bigelow
- •2 Pollock on Torts (.5th ed.), p- "*- et seq. ; Bigelow on Torts (7th ed.),
- •194 Principal and third partv.
- •In this, that a servant injures a person by acting upon him or
- •Injured person to act to his own prejudice ; and this the
- •Innocent principal liable in deceit for the wilful frauds of his
- •Ing the matter, and does not expressly authorize any repre-
- •1 " III Cornfoot V. Fowke, it is difficult to suppose that as a matter of
- •Is now generally conceded that the principal is liable however
- •Innocenli he may have been personally.-* Thus, if the agent is
- •1 Udell V. Athorton, 7 II. & n. 172; Western Bank V. Addie, l. R. 1
- •If they are in the line of accomplishing the object of the
- •In any case where the principal has in his hands the fruits
- •Innocent, and that the fraud was not for his benefit, was
- •Inquire as to the validity of the stock, and were of course
- •Informed that the stock was valid. The jMaster of the
- •It may well be that they would l)e liable. But although
- •1 British Mutual Banking Co. V. Chavnwood Forest Ky , l. R. 18 q.
- •2 Moores V. Citizens' Nat. Hk., Ill u. S. 156. Cf Bank of New York,
- •8 Friedlander V. Texas, &o. Ry., 130 u. S. 416.
- •In the doctrine that where the principal authorizes an act
- •Is of course binding on the principal. But the doctrine
- •If the representation be false. So he does as between him-
- •1 New York & New Haven r. V. Schuyler, 31 n. Y. 30, especially pp.
- •206 Principal and third party.
- •Voked under other circumstances too various to be referred
- •1. Contract Ohligations.
- •In the name of the principal outside the scope of a prior au-
- •Ity, real or apparent, which would bind the principal will also
- •In such a case the principal is both the real and nominal party
- •In interest and is the only one who can sue or be sued upon
- •Instrument 1)c under seal or negotiable, parol evidence cannot,
- •It follows that there are three cases in which the agent also
- •Indicia of title, it might be reasonably inferred that the
- •2 McCauley V. Brown, 2 Daly (n. Y. C p.), 426.
- •8 Hentz r. Miller, 94 n. Y. 64.
- •8 Lord Ellenborough in Pickering V. Busk, 15 East, 38.
- •In his own name, and it follows that an innocent purchaser
- •In any one of these cases the principal may reclaim bis goods
- •Ing it better that where one of two innocent persons must
- •It is to be observed that the factor or agent must be one
- •Ize a common carrier, warehouse-keeper, or other y)erson to whom mer-
- •2 This is ostensible ownership. The English Act reads, "any sale,
- •8 Xew York Security & Trust Co. V. Lipman, 91 Hun, 554, allirmed,
- •It is to be observed that the third party must have made
- •If the property is still in the hands of the third party, an action
- •Its value. If it has been sold by the third party, the tort may
- •Interference with the agent in the discharge of his duties, or
- •Involve either fraud or malice, — fraud in inducing the prin-
- •Is acting in behalf of the principal, since every person is liable
- •2 Gushing V. Rice, 46 Me. 303; Perkins c. Evans, 61 Iowa, 35; White
- •V. Owen, 12 Vt. 361.
- •Is committing a fraud on his princii)al, he becomes a party to
- •Interfering with the agent or the agency. He is liable if he
- •Interferes with the agent in the performance of the duties of
- •2. Where the Agent alone is bound.
- •If the contract is unenforceable against the principal be-
- •Is a body of more or less clearly identified ])ersons who might
- •Is always a question of the intention and understanding of
- •Is no presumption either way, and that it is always a question as to what
- •6 Flinn & Co. V. Iloyle, 63 l. J. Q. B. 1 (1894).
- •Is liable on the contract whether his principal be known or
- •Instruments. As to either no parol evidence is admissible to
- •1 Tucker Mfg. Co. V. Fuirbauks, 98 Mass. 101 ; Williams V. Second n.
- •2 Metcalf V. Williams, 104 u' s. 93; Case Mfg. Co. V. Soxman, 138
- •8 Compare, for example, Carpenter V. Farnsworth, 106 Mass. 561 ;
- •It would be improper to sustain a demurrer to a complaint
- •Ing under this head are only a phase of those just con-
- •Indicative of agency. The court held the instrument ambigu-
- •Is general agreement that, in the absence of recitals -or other
- •Indications of the identity of the principal, a. B. Alone is
- •In the case of indorsers of bills and notes the whole doc-
- •If read with the signature and its descriptive words, would
- •3. Where both Principal and Agent are hound.
- •If the third person knows that the agent is acting for some
- •If an agent contracts personally in a simple written con-
- •It is supported savors of subtlety and refinement. . . . What-
- •4. Wiere neither Principal nor Agent is hound.
- •Implied warranties as to the existence and competence of his
- •Instruments, adding words descriptive of their office, and
- •If the agent has not acted as agent, but for an undisclosed
- •In the second case he may sue because there was at least
- •It is admitted, however, that even in the first case the agent
- •Ing the action, gives due notice of the actual state of the
- •Interest. He may supersede it by suing in his own name,
- •Is, of course, necessary that the essential elements of deceit
- •2 Bennett V. Bayes, 5 h. & X. 391.
- •In such cases he is both bailee and agent, and it is a general
- •Introduction.
- •If the primary obligation was an involuntary one, or if, being
- •Voluntary, it was one to which the law annexed additional
- •Is tort. A servant in performing operative acts for his mas-
- •Vant, with the liability of a servant for his own torts, and
- •1 Ante, в§в§ 4-6.
- •Independent contractors.
- •Ists, would go far toward destroying the whole doctrine appli-
- •If the employer contracts for a nuisance or other unlawful
- •If the employer is under an obligation of positive law to do
- •109, 115; Atlanta r. V. Kimberly, 87 Ga. 161, 168.
- •2 Read V. East Providence Fire Dist., 20 r. I. 574 ; Higgins V. W. U.
- •280 Who is a sEliVant?
- •In favor of the view that the coachman was not the servant of
- •In a recent case the hirer owned a hoisting tackle affixed to
- •1 Hardy V. Shedden Co., 78 Fed. Gio.
- •8 Lord Russell of Killowen, c. J., in Jones V. Scullard, 1898, 2 q. B.
- •It has also been held that the engineer and crew of a railroad
- •Vants for the time of the mill-owner and not of the railroad
- •1 Rourke V. White Moss CoTliery Co., l. R. 2 c. P. D. 205.
- •2 Donovan V. Laing, 1893, 1 q. B. 629. ' Ibid. P. 632.
- •6 Burton V. G. H. & s. A. Ry., 61 Tex. 526 ; New Orleans, &c. R. V.
- •If the general master is asked to furnish a workman for a
- •Vant of the hirer and a fellow-servant of the hirer's regular
- •Voluntarily assumes the risks of the default of fellow-servants.
- •Vices, in determining the question, Who is a servant ?
- •In some cases — as in the em{)loyment of pilots — the em-
- •If the employment of a particular person, or of the first of
- •Is injured through the negligence of a member of the crew.
- •In such case is the pilot barred of recovery upon the ground
- •If a convict is hired out by the state to an employer, there
- •1 Angel V. Felton, 8 Johns. (n. Y.) 149; Kosminsky V. Goldberg, 44
- •2 Phillips V. Barnet, 1 q. B. D. 436 ; Abbott V. Abbott, 67 Me. 304.
- •It is generally conceded that, aside from the cases of com-
- •8 Gwilliam V. Twist, supra.
- •Injury recklessly inflicted after knowledge of his dangerous
- •If, however, the volunteer performs the service at the
- •It, or (3) that the master had intrusted the servant with
- •In some cases there may be a presumption that the wrong-
- •Involves, however, further questions of considerable nicety
- •Vant who is within the scope of the employment. Thus where
- •In other words, if the defendant had engaged the teamster to
- •If a servant commit an assault or other wrong while in the
- •In a custom of workmen to throw off fire-wood from a con-
- •Ity." 2 But if the express authority is given to one servant,
- •It is to be noted that these cases cannot proceed upon the
- •Intimations are subject to the material qualification, that the
- •Vice, and were not such as the servant intended and believed
- •8 Rounds I'. Delaware, &c. R., supra.
- •It is not a bar to the plaintiff's recovery that he provoked
- •If so the master is liable, although the provocation may be
- •It is shown that the administrators of the charity were them-
- •In either case the test is whether the act was done by the agent
- •In the performance of his business, and is an act within the
- •Violation of revenue laws, licensing laws, health hiws, and in
- •In the course of the employment, —
- •In case the prohibited act is done in the conduct of his busi-
- •It is immaterial whether the failure to comply with the statu-
- •1 Comm. I'. Morgan, 107 Mass. 199. See also Bisliop, dim. Law, "Vol. 1.,
- •Impose a penalty for any violation of the conditions, whether
- •Ing diluted or skimmed milk should be recoverable by
- •In the course of the employment, and in his behalf or interest,
- •330 Liability of master
- •Istrative acts.
- •It will be recalled that the distinction between an agent
- •Vice-principal in the sense that his act is the act of the
- •It will also be recalled that the distinction thus made
- •It will also be recalled that the same employee may be both
- •Indeed, insist that an employee whose chief duties are admin-
- •Istrative shall always be regarded as a vice-principal whatever
- •Vant committed within the scope of the employment, there is
- •Instances of who are and who are not "fellow-servants."
- •In the decision of that case. The earliest actual decision was
- •1841. The leading American case is that of Farwell V. Boston
- •Inconvenience in specific cases. Finally the whole matter is
- •In others. The English and Massachusetts cases were imme-
- •In order that the rule should apply it is necessary that the
- •Vants employed in the same service. They must have a
- •In their relation to the servants of the employer of the inde-
- •In such a way as to cut up the railroad business into different
- •It is everywhere admitted that two servants of the same
- •In the ocean carrying trade, the seamen on one of his vessels
- •Injury occasioned by the negligence of a fellow-servant, has
- •In authority to the one receiving the injury. . . . Where one
- •In whole or in part in a few other states. In Illinois it is
- •Inferior servant for the negligence of a superior servant, pro-
- •Vided the superior is negligent in the exercise of the power
- •Impropriety or defect in the rules, by-laws, or instructions, —
- •In the same grade, in like employment, and in the district in
- •1894, C. 499).4 Mississippi (l. 1896, c. 87) adopts substantially
- •Inferior servant for any injury due to the negligence of a su-
- •Injured servant.В®
- •10 Western, &c. Ry. V. Bishop, 50 Ga. 405; Fulton isIills V. Wilson, 89
- •In damages to his servant. These torts uuiy be either negli-
- •If the master is working with his servants in operating the
- •1 Crispin V. Babbitt, 81 n. Y. 516.
- •8 Ashwortli r. Stanwix, 3 El. & El. 701.
- •In consequence of his failure to do so. If he negligently fails
- •Inspection, he is liable to any servant injured in consequence
- •Injuries arising from a danger which he voluntai'ily and with
- •1 Sweeney V. Berlin, &c. Co., 101 n". Y. 520; Dougherty V. West Supe-
- •8 Hough V. Texas, &c. R., 100 u. S. 213 ; Northern Pac. R. V. Bab-
- •Ical Co., 147 Pa. St. 475; Haas V. Balch, 50 Fed. Rep. 984. Cf. Davis V.
- •If a master is asked the character of a servant who is or
- •360 Liability of servant
- •1. Liability to master.
- •If one intrust a horse to another as gratuitous servant or
- •If the servant agrees upon a consideration to perform a
- •4 Johns. (n. Y.) 84.
- •2 Ante, в§в§ 97-98; Whiteheafl V. Greetham, 2 Biiig. 4g4.
- •2. Liability to fellow-servant.
- •3. Liability to third persons.
- •In dealing with the liability of the servant for his torts we
- •Is liable to third persons (including fellow-servants) for his
- •If an agent never does anything toward carrrying out his con-
- •1 Thorne V. Deas, 4 Johns. (n. Y.) 84 ; ante, в§в§ 97, 286.
- •2 Osborne V. Morgan, 130 Mass. 102. And see Bell V. Josselyn, 3
- •364 Liability of servant
- •Is liable for his own negligent omissions in the management
- •89 Ilun (n. Y.), 417; Dean V. Brock, 11 Ind. App. 507.
- •In control, but not after he has surrendered control to his
- •In such cases the relief of the party injured must be sought
- •Is held that it is immaterial that there is no binding contract
- •Importance in view of the broader doctrine concerning the
- •It is also actionable to induce or persuade a master to dis-
- •It is actionable if unlawful means are used as force, intimida-
- •Is it actionable to induce or persuade a master to discharge
- •Ing the plaintiff does not carry with it immunity to the de-
- •Interfering with the plaintiff's occupation or means of liveli-
- •It will be observed that there are two different views enter-
- •1. For any money advanced, or negotiable security given by
- •2. For any money or negotiable security received by the per-
- •1 Sects. 1 and 2 are now cited as в§ 72 of " The Lien Law " (l. 1897,
- •37G appendix.
- •Instrument or otlier obligation in writing given by such other
- •Isfying such lien as may exist thereon in favor of the agent who
- •52 & 53 Vict. C. 45.
- •1. For the Purposes of this Act — (1) The expression "mer-
- •6. For the purposes of this Act an agreement made with a
- •7. ВЂ” (1) Where the owner of goods has given possession of the
- •8. Where a person, having sold goods, continues, or is, in pos-
- •Ing for him, of the goods or documents of title under any sale,
- •9. Where a person, having bought or agreed to buy goods,
- •382 Appendix.
- •Instantaneous death. If there are no such persons, then no
- •1 This paragraph was added by St. 1892, c. 200.
- •2 This paragraph was added by St. 1893, c. 3.')9.
- •Injured or by some one in his behalf; but if from physical or
- •In case of his death without having given the notice and without
- •It is shown that there was no intention to mislead, and that the
- •384 Appendix.
Insanity has been judicially declared, the decree of the court
will be regarded as notice, and the revocation will operate
upon all persons, whether or not they have actual knowledge
of the insanity. But if the princii)al has not been formally
adjudged insane, persons who, in ignorance of the insanity,
deal with the agent, are protected. This, upon the theory
that while both principal and tliird person are innocent and
free from blame, the principal, by conferring the original
authority, had made the wrong possible, and he must there-
fore bear the loss." In accordance with the general rule, if
1 Lacy )'. Getraan, HON. Y. 100.
2 Farmers', &c. Co. v. Wilson, 139 N. Y. 284; Long v. Thayer, l.oO
U.S. 520; In re Succession of Lanaux, 46 La. Ann. 10:56; Harper v.
Little, 2 Me. 14; Blades v. Free, 9 B. & C. 167. Post, В§ 200.
^ McNaughton v. Moore, 1 Haywood (N. C), 189; Rowe v. Kand,
111 Ind. 206 ; Tasker v. Shepherd, 6 H. & X. 575.
в– * limit V. Rousmanier. 8 Wheat. (U. S.) 174, 203; Grapel v. Hodges,
112 X.Y. 41 0; jujsi, В§ 72.
^ Johnson r. Jolinson's Adni'r, Wright (Ohio), 594.
6 Davis V. Lane, 10 N. H. l.')(); Motley v. Head, 43 Vt. 633; MatHiie-
sen, &c. Co. v McMahon, 38 N. .J. L. 536 ; Drew v. Xuun, L. R. \ il. B. D.
661.
' Ante, В§ 16. But the burden is upon tlio third party to show that he
в– was ignorant of the principal's insanity. !Merritt v. Merritt, 43 W. Y.
App. Div. 68.
BY OPERATION OF LAW. 85
tlie agent's authority is coupled with an interest, the princi-
pal's insanity does not terminate the agency.^
(3) Illness. The illness of the principal would have no
effect uj)on the agency. Ihit the illness of the agent which
incapacitated him from performing the duties of the agency
would warrant him in renouncing the contract.- And it is
immaterial that his illness is due to his own fault, since an
inquiry as to the cause of the illness is treated as an inquiry
into a remote cause.^ If, however, before renunciation or
notice of the termination of the agency, the agent should act
for the principal, his acts would, of course, be binding.
(4) Marriage. The marriage of a principal does not, as a
general rule, operate as a termination of the agency. It may,
liowever, revoke an authority the exercise of which would
impair rights growing out of the marriage. For instance it is
lield that a power of attorney to sell land, the home of a single
man, is revoked by his marriage* The principal's wife, by
the marriage, acquires an interest in the land which can only
be divested by her joining in the conveyance, or in the power
to convey. Under the common law, a woman was deprived
by marriage of all control over her property, and the authority
of her agent was consequently revoked.^ But under the
modern statutes giving to married women the right to hold
and control separate property, this rule, of course, does not
apply. The marriage of a woman who is under contract of
service does not of itself afford ground for a revocation of the
contract by the master.^ And, as we have seen, married
women may act as agents.'
(5) Constraint of Law. Where the law puts a constraint on
one of the parties which renders it impossible for him to con-
tinue the relation, the agency is revoked. Thus the arrest
1 PoM, В§ 72.
2 Spalding v. Rosa, 71 N. Y. 40 ; Robinson v. Davison, L. R. 6 Ex.
2G9.
8 Hughes V. Wamsiitta ^lills, 11 Allen (Mass.), 201 (semble).
* Henderson v. Ford, 4G Texas, 627.
6 Wambole v. Foote, 2 Dak. 1.
6 Edgecombe v. Buckhout, 146 N. Y. 332. ? Ante, В§ 23.
86 TERMINATIOX OF AGENCY
and imprisonment of an atront terminates tlie agency, and it is
immaterial that the arrest is due to the fault of the offender.^
So if a corporation be dissolved by judicial proceedings, the
agency is revoked.^ The dissolution of a partnership, whether
voluntary or involuntary, terminates an agency in which the
firm was either principal or agent.^
(G) BanJcruptcij. The mere insolvency of the principal has
no effect upon the agency, but if the principal becomes legally
bankrupt, and voluntarily or involuntarily surrenders the con-
trol of his property and affairs, the authority of the agent,
unless coupled with an interest, is regarded as terminated.*
It seems, however, that even after bankruptcy, the agent may
act for his principal in regard to all matters except those
touching the rights and property of which he is divested by
the bankruptcy.^ And it is also held that although the adju-
dication of the court relates back to the act of bankruptcy,
persons who, subsequent to the act of bankruptcy but prior
to the adjudication, deal with the agent in good faith, will
be protected.^ The bankruptcy of the agent revokes his
authority to deal with the principal's property rights, although
he might still perform a purely formal act.'
(7) War. Although there are several cases to the contrary,
it seems to be the law in America, that the existence of war
between the country or State of a principal, and that of his
agent, terminates the agency. This is in accord with the
general rule that all trading or commercial intercourse be-
tween two countries at war is prohibited.^ The exception is
^ Hughes V. "Wamsutta Mills, 11 Allen (Mass.), 201; Leopold v.
Salkev, 89 111. 412.
2 People V. Globe Ins. Co., 91 X. Y. 174.
8 Griggs V. Swift, 82 Ga. 392.
* Story on Agency, В§ 482; ]\Iinctt v. Forrester, 4 Taunt. 511; Pear.son
V. Graham. A. & E. 899; Parker v. Smith, IG East, 382; Ex parte
Snowluall, L. R. 7 Ch. App. 548.
6 Dixon V. Ewart, Buck, 9 1 ; 3 Mer. 322.
8 Ex parte Snowball, L. II. 7 Ch. App. 543; Elliott v. Turquand,
L. R. 7 App. Cases, 79.
в– ^ Audenried v. Betteley, 8 Allen (iMass.), 302. As to the agent's
right to compensation after bankruptcy, see post, В§ 80.
• * Kershaw v. Kelsey, 100 Mass. 5G1 ; United States v. Grossmayer,
8 Wall. (U. S.) 72. See ante, В§ 22.
hY IRUEVOCABLE AGENCIES. 87
recognized, however, that debts may be paid to the agent of
an alien enemy, wlien such agent resides in tlie same State
"with the debtor. But it must hr with the mutual assent of
princi{>al and agent, and it must not be done with the view of
transmitting the funds to the principal during the continuance
of the war.^
4. Irrevocable Agencies.
В§ 72. Doctrine of irrevocable agencies.
To the general rule that an authority vested in an agent
may be revoked by the principal, and that it is revoked by
the death, lunacy, or bankruptcy of the principal, there are
some exceptions, and these exceptions constitute what are
known as irrevocable agencies. The reason for holding cer-
tain powers vested in an agent irrevocable, is that a revoca-
tion would cause to the agent a loss or damage other than,
and different from, a mere loss of employment or profit. Thus
if, for a valuable consideration, an authority is vested in an
agent for the purpose of fortifying a security held by him
against the principal, or of protecting or securing an interest
of his, the authority is irrevocable because its revocation
would subject the agent to damage by the loss of such secu-
rity, or the means of realizing upon it.^ So also if the agent
is employed to do an act which involves him in personal
liability to a third person, and he has incurred such liability,
the power cannot be revoked, because its revocation would
subject the agent to an action by the third person.^ In the
first case the agent is said to have " a power coupled with an
interest." In the second case he may be said to have " a
power coupled with an obligation." There are, then, two
exceptions to the general rule that an agency is revocable,
^ Insurance Co. v, Davis, 95 U. S. 425; N. Y. Life Ins. Co. v. Statham,
93 U. S. 24 ; Ward v. Smith, 7 Wall. (U. S.) 447 ; Howell v. Gordon, 40
Ga. 302. See ante, В§ 21.
2 Walsh i: Whitcorab, 2 Esp. 565; Gaussen i'. IVIoiton, 10 B. & C. 731 ;
Raleigh v. Atkinson, 6 M. & W. G70; Smart v. Sandars, 5 C. B. 895;
Dickinson v. Bank, 129 Mass. 279 ; Carter r. Slocomb, 122 X. C. 475.
8 Read r. Anderson, 13 Q. B. D. 779; Tbacker v. Hardy, 4 Q. B. D.
685 ; Crowfoot v. Gurney, 9 Bing. 372 ; Hess v. Ran, 95 N. Y. 359.
88 TERMINATION OF AGENCY
namely, (1) where the aixent has '' a power coupled with an
interest," and (2) when the agent has "a power coupled with
an obligation."
V (1) A "power coupled with an interest" is dil'licult to
define accurately. The word "interest" must not l)e taken
in a broad but in a narrow sense. It means an interest in
tlie thing itself which constitutes the subject-matter of the
agency as distinguished from an interest in tlie execution of
the power. " In other words, the power nnist be engrafted
on an estate in the thing." ^ There must be first an interest
or title in the thing constituting the subject-matter of the
agency and then, coupled with this, a power to dispose of or
otherwise control the thing for the purpose of protecting the
interest. Thus, if a factor makes advances to liis principal
in consideration of authority to sell goods consigned to him
and reimburse himself for the advances, the authority is irre-
vocable ; but if he is authorized to sell the goods and pay
himself from the proceeds a sum not advanced in considera-
tion of the power, the authority is revocable.^ If one have an
interest in lands or goods, coupled with a power of sale, the
power is irrevocable.^ But if one be authorized to sell lands
or goods in which he has no interest and apply the proceeds
to a debt due the agent from the principal, the power is revo-
cable because the agent, while having an interest in the
execution of the power, has none in the subject-matter of the
agency.*
The American rule seems to be that an interest in the sub-
ject-matter of tlie agency by way of security or indenmity,
coupled with a power to sell or otherwise dispose of the
property, renders the power irrevocable;^ but an interest by
^ Hunt V. Rousmaiiier, 8 Wheat. (U. S.) 174.
2 Raleigh v. Atkinson, 6 IM. & W. 670; Smart v. Sandars, 5 C. B. 895;
Taplin V. Florence, 10 C B. 744.
8 Roland v. Coleman, 76 Ga. 052; Knapp i'. Alvord, 10 Paige (X. Y.),
205.
* Hunt V. Rousinanier, 8 Wheat. (U. S.) 174; Friuk c. Koe, 70 Cal.
296; Farmers', &c. Co. r. Wilson, 139 N. Y. 284.
6 Knapp V. Alvord, 10 Paige (N. Y.), 205.
BY lEREVOCABLE AGENCIES. 89
way of compensation in the proceeds of such sale is not such
an interest as will render the power irrevocable.^
The English rale is somewhat broader and is to the effect
that where an agreement is entered into on a sufficient con-
sideration, whereby an authority is given for the purpose of
securing some benefit to the donee of the authority (as in the
proceeds by way of payment of a debt), such an authority is
irrevocable.^ This rule does not positively require that the
agent should have an " interest in the subject-matter," in
the sense in which that term is employed in most of the
American cases, but is satisfied if the agent has an interest in
the execution of the power, provided such interest rests upon
a sufficient consideration.
A leading American case took a distinction between revo-
cation by the voluntary act of the principal, and revocation by
death, and, while arguing that where the agent had acquired
upon consideration an interest in the execution of the power,
the principal could not have revoked such power during his
life, held that the power was revoked by the principal's
death.3 It is believed, however, that such a distinction is not
generally recognized, and that where a power is irrevocable
by the voluntary act of the principal, it is not revoked by his
bankruptcy,* insanity, or death.^
Y (2) ^ power coupled with an obligation means a power in
the execution of which an agent has come under some obliga-
tion to a third person. Where the revocation would involve
the agent in liability to a third person, the principal cannot
revoke, nor will the law revoke, the agency. Thus if an
agent is authorized to make a contract for the principal and
^ Blackstone v. Buttermore, 53 Pa. St. 2G6 ; Chambers v. Seay, 73
Ala. 372 ; Stier v. Ins. Co., 58 Fed. Rep. 843.
2 Gaussen i^. Morton, 10 B. & C 731 ; Clerk v. Laurie, 2 H. & N. 199 ;
In re Hannan's, &c. Co., 1896, 2 Ch. 643, affirming 74 L. T. Rep. n. s. 550.
3 Hunt V. Rousmanier, 8 "Wheat. (U. S.) 174. See also ^Vatson i-.
King, 4 Camp. 272.
* Dickinson v. Bank, 129 Mass. 279; Renshaw i'. Creditors, 40 La.
Ann. 37.
5 Knapp V. Alvord, 10 Paige (X. Y.), 205; Hess v. Rau, 95 N. Y.
359; Carter v. Slocomb, 122 N. C. 475.
90 TERMINATION OF AGENCY.
the agent has so far involved himself in the execution of the
power as that he would suffer loss or damage if the affair
were not carried through, the power to consummate it is irre-
vocable.^ So also if the agent is authorized to pay money on
behalf of the principal to a third person, and has come under
a personal liability to such third person for the sum in ques-
tion, the principal cannot revoke the authority .^ These cases
are sometimes treated as if they were those of a " power
coupled with an interest,'"'^ but they are distinguishable from
that class of cases which really have a more dcliuitely limited
scope.*