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general authority so as to bind the defendant, although in fact no authority had been given by him to execute this charter-party, and it was one in which he had no interest.
Pollock, J. observed,-" Has the person who is to be charged with liability under this commercial instrument or with the contract, whatever it may be, authorized and permitted the person who has professed to act as his agent, so as to act in such a manner and to such an extent as that from what has occurred publicly, persons dealing with him have a reasonable right to conclude and to draw the inference that the person so acting is a general agent? If that question is answered in the affirmative, in my judgment the party is bound; although, as between him and the agent, he takes care to give on every occasion special instructions; and I think it makes no difference whatever whether the agent professes to act in the name of his principal, as if he were the principal, or whether he professes to act as the agent, signing as A. B., agent for C. D., or whether he professes to act under a power of attorney.
"The term procuration' does not appear to me altogether necessary to imply that it is under procuration. I believe that expression is frequently used by persons who are in employment, and who have no power of doing it at all. All that the expression Per procuration' means is this, "I am an agent, not acting on any authority of my own
in the case, but authorized by my principal to
another, or "by procuration of" another, was to
In the case of De Bussche v. Alt,3 Thesiger, L. J. Delegation of in delivering the judgment of the Court of Appeal said:"As a general rule, no doubt, the maxim “delegatus non potest delegare" applies so as to prevent an agent from establishing the relationship of principal and agent between his own principal and a third person; but this maxim when analyzed merely imports that an agent cannot, without authority from his principal, devolve upon another obligations to the principal which he has himself undertaken to personally fulfil; and that, inasmuch as confidence in the particular person employed is at the root of the contract of agency, such authority cannot be implied as an ordinary incident in the contract. But the exigencies of business do from time to time render necessary the carrying out of the instructions of a principal by a person other than the agent originally instructed for the purpose, and where that is the case, the reason of the thing requires that the rule should be relaxed, so as, on the one hand, to enable the agent to appoint what has been termed "a sub-agent" or "substitute" (the latter of which designations, although it does
. McGuire, 27 L. J. Ex. 465, 468. See also Cooke v. Wilson
1 C. B. (N. S.) 153, 162.
29 L. J, Q. B. 95 n. ; 5 M. & S. 345,
L. R. 8 Ch. D. 286.
not exactly denote the legal relationship of the parties, we adopt for want of a better, and for the sake of brevity); and, on the other hand, to constitute, in the interests and for the protection of the principal, a direct privity of contract between him and such substitute. And we are of opinion that an authority to the effect referred to may and should be implied where, from the conduct of the parties to the original contract of agency, the usage of trade, or the nature of the particular business which is the subject of the agency, it may reasonably be presumed that the parties to the contract of agency originally intended that such authority should exist; or where, in the course of the employment, unforeseen emergencies arise which impose upon the agent the necessity of employing a substitute; and that when such authority exists, and is duly exercised, privity of contract arises between the principal and the substitute, and the latter becomes as responsible to the former for the due discharge of the duties which his employment casts upon him, as if he had been appointed agent by the principal himself. The law upon this point is accurately stated in Story on Agency.1
like the present, where a shipowner employs an agent for the purpose of effectuating a sale of a ship at any port where the ship may from time to time in the course of its employment under charter happen to be, is pre-eminently one in which the appointment of substitutes at ports other than
1 S. 201.
those where the agent himself carries on business is a necessity, and must reasonably be presumed to be in the contemplation of the parties.
The facts of the above case were as follows:The plaintiff sent a steamer to G. in China for sale on commission. The terms were cash payment, and not less than $90,000. G. employed the defendant as a sub-agent, informing him of the terms. The defendant having accepted the agency, informed G. that he could not sell for cash, and offered to take the vessel over himself upon the terms named. The defendant had in the meantime arranged with a Japanese prince for the sale to him of the steamer for $160,000, of which about $75,000 were to be paid in cash, and the rest during the course of the year. The steamer was assigned to defendant upon these terms, and the defendant carried out his sale to the prince. The plaintiff instituted a suit for an account and payment of the profits made by the defendant as his agent for sale of the vessel.-Held, that G. had both express and implied authority to appoint a sub-agent, or substitute, for sale of the vessel; that having exercised that authority the relationship of principal and agent arose between the plaintiff and the defendant, and the defendant could not change his position of agent for that of purchaser without the consent of the plaintiff; that in this case G. had not consented to the termination of the agency till after the
defendant had agreed to sell the steamer to the prince; that, therefore, when that sale was made defendant was both in law and in fact the agent of the plaintiff; and that on all these grounds the plaintiff was entitled to the account claimed.
So where by the custom of trade, a ship-broker, or other agent, is usually employed to procure a freight or charter-party for ships, seeking a freight, the master of such a ship, who is authorized to let the ship on freight, will incidently have the authority to employ a broker, or agent for the owner for this purpose.1
A broker, being personally confided in, cannot ordinarily delegate his authority to a sub-agent, or clerk under him, or to any other person. His authority, therefore, to delegate it, if it exists at all, must arise from an express or an implied assent of the principal thereto. 2
The ship's husband is the agent or commissioner for the owners. He may be a part-owner or a stranger. His powers are by mandate or written commission by the owners, or by verbal appointment; the latter chiefly where he is also part owner. His duties are to arrange everything for the outfit and repair of the ship, stores, furnishings; to enter into contracts of affreightment and charter-parties. And it has been held that this is
2 Henderson v. Barnwall, 1 Y. & J. 387; Cochran v. Irlam, 2 M. & S. 301.