the contract and the condition; and, if the horse be returned, is bound to return the money (r). by master. Where a master has admitted his liability upon a contract Admission made by his servant, the weight due to that admission depends on of liability the circumstances under which it was made (s). If no other person has been induced by it to alter his condition, the master is not concluded or estopped by it, but may prove it to have been mistaken or untrue (t). Where the authority of a servant to bind his master upon con- Extent of tracts arises merely by implication, the general rule is, that the servant's authority of a servant is co-extensive with his usual employment, authority. implied and the scope of his authority is to be measured by the extent of his employment (u). For a master who accredits a servant by employing him must abide by the effects of that credit, and will be bound by contracts made with innocent third persons in the seeming course of that employment, and on the faith of that credit, whether he intended to authorize them or not, or even if he expressly though privately forbad them; it being a ge eral rule of law, founded on natural justice, that where one of two innocent persons must suffer by the fraud of a third, he who enabled that third person to commit the fraud should be the sufferer (x). Upon this principle, where a servant usually buys for his master Master liable upon credit, and the master is in the habit of paying for goods when servant so purchased, the master is liable to pay for any goods of a for him upon usually buys similar nature which the servant may obtain upon credit, even credit and he though, in a particular instance, the master furnish the servant usually pays. with money to pay for the goods, and the servant embezzle the money; or even if the servant after he has been discharged pledge his master's credit, unless the party giving credit knew that the servant was discharged (y). Thus, where (z) the de- Hazard v. fendant, who was a considerable dealer in iron, and known to the plaintiff as such, though they had never dealt together before, sent a waterman to the plaintiff for iron on trust, and paid for it afterwards. He sent the same waterman a second time with ready money, who received the goods but did not pay for them; the defendant was held liable for the sending him (r) See and consider Ferguson v. Carrington, 9 B. & C. 59; Foster v. Smith, 18 C. B. 156; but see Bosanquet v. Foster, 9 C. & P. 659; Same v. Corser, ib. 665. (s) Newton v. Belcher, 12 Q. B. 924. (t) Newton v. Liddiard, 12 Q. B. 925; see Heane v. Rogers, 9 B. & C. 577; Pickard v. Sears, 6 A. & E. 474. (u) Smith's Merc. Law, 116; Paley on Ag. 162; and see Poth. on Obl. by Evans, No. 456. (x) Hern v. Nicholls, 1 Salk. 289; Baring v. Corrie, 2 B. & Ald. 143. In Fitzherbert v. Ma ther, 1 T. R. 16, Buller, J., said, (y) Nickson v. Brohan, 10 Mod. (z) Hazard v. Treadwell, 1 Str. 506. Treadwell. Wayland's Case. Rusby v. Summers v. Giving ser to pay debt. upon trust the first time, and paying for the goods was giving him credit so as to charge the defendant upon the second contract" (a). So where (b) a master used to give his servant money every Saturday to defray the charges of the foregoing week. The servant kept the money, yet per Holt, C. J., "The master is chargeable; for the master, at his peril, ought to take care what servant he employs, and it is more reasonable that he should suffer for the cheats of his servant than strangers or tradesmen." Again, where (c) a gentleman kept a book with his coachman, in which were entered the articles procured by, and the sums advanced to, him; but there did not appear to be any connection between the sums advanced and the demands he was to pay; the gentleman was held liable to pay for hay and straw delivered for the use of his horses, although he had given the coachman money to pay the bills, which he had embezzled. So where the defendant, a jeweller, kept a shop in the country, living himself in London, and visiting the country shop once a month to take stock, &c. The country shop was managed by a shopman, A., from whom the plaintiff had for some years been in the habit of receiving orders in the country in the defendant's name, for goods which were sent to the country shop, and afterwards paid for by the defendant. A. absconded, went to London and ordered jewellery there of the plaintiff in the defendant's name, which he carried away with him: it was held that the previous course of dealing justified the plaintiff in assuming that A. had general authority to order goods for the shop on the defendant's credit, and that the defendant was, therefore, liable for the goods obtained by A. in London (d). And if the master was originally liable for a debt incurred by vant money his servant, he could not discharge himself by merely giving the servant money to pay it (e). But if the creditor should so deal with the master as to lead him to believe that the debt was discharged, the creditor might, under such circumstances, be precluded from afterwards suing the master (f). Tradesman Upon similar principles the owner of a saw mill was held (g) (a) See, however, Todd v. Robinson, Ry. & M. 217; Gilman v. Robinson, Ry. & M. 226; S. C. 1 C. & P. 642. A general agency to order goods could hardly be implied from a single recognized dealing. In most cases it would be a question for a jury whether the defendant held out the servant as his agent for the purpose of ordering the goods in question. (b) Sir R. Wayland's Case, 3 Salk. 234; and see Miller v. Hamilton, 5 C. & P. 433. (c) Rusby v. Scarlett, 5 Esp. 76. (d) Summers v. Solomon, 26 L. J., Q. B. 301; S. C. 7 E. & B. 879. Bramwell, B., does not assent to the law laid down in this case, 3 H. & N. 794. (e) Heald v. Kenworthy, 10 Exc. 739. (ƒ) Macfarlane v. Giannacopulo, 3 H. & N. 860. (g) Richardson v. Cartwright, 1 Carr. & K. 328; see Thompson v. Bell, 10 Exc. 10, where a joint stock bank was held bound by an act of the manager. See also Pauling v. London and NorthWestern Railway Company, 8 Exc. 867. foreman. bound by a contract entered into by his foreman to furnish the bound by plaintiff with a large quantity of Scotch fir staves; "as a fore- contract of man employed to conduct a business like that in which the defendant was engaged, must be taken to have a general authority to bind his master by such contracts." And if a person goes Winkfield v. to the office of a carrier and asks what a thing will be done for, Packington. and he is told by a clerk, or servant, who is transacting the business there that it will be done for a certain sum, the master can charge no more, although he has previously ordered his clerks to charge more (h). company. A company established for the manufacture of glass, completely Manager of registered under 7 & 8 Vict. c. 110 (i), had power under their deed joint stock of settlement to appoint a manager of their works, &c., to "superintend and transact, under the control of the board of directors, the manufacturing business of the company," and to whom the board of directors were, by another part of the deed, authorized to delegate "such and so many of the powers thereby given to them as would enable him to carry on the said works and manufacturing business in an efficient manner." It was held that the company were liable for goods supplied to them for the purposes of their manufactures upon orders given by such manager, although there was no express delegation of authority (k). tended to The principle of presumptive agency on which these cases Presumptive were decided has been extended to cases in which the person agency exwho assumed to act as servant was not really servant, but was stranger in considered to have been held out as servant by the act of the counting master. house. in course of Thus a merchant has been held bound by a payment in the Payment to usual course of business to a person found in his counting-house such a person and appearing to be entrusted with the conduct of the business business there, though it turned out that the person was never employed held good. by him, and the money never came to his hands; for, said Lord Tenterden, "The debtor has a right to suppose that the tradesman has the control of his own premises, and that he will not allow persons to come there and intermeddle in his business without his authority"(). And so a tender to a person, pro- Tender to bably a chief clerk, in the office of an attorney, who refused to person in an accept the amount tendered as insufficient, has been held attorney's good: being equivalent to a tender to the attorney himself (m). bably a clerk, held good. (h) Winkfield v. Packington, 2 C. & P. 599. (i) This act is now repealed, 19 & 20 Vict. c. 47, s. 107; 20 & 21 Vict. c. 14, s. 23; except as to insurance companies, 20 & 21 Vict. c. 80. (k) Smith v. Hull Glass Company, 11 C. B. 897; see also Ex parte Greenwood, 3 De. G. M. & G. 459; S. C. 18 Jurist, 387; Ernest v. Nicholls, 6 Ho. Lords Cas. 401; Forbes v. Marshall, 11 Exc. 166, 179; Re Athenæum Life Assurance Company, 27 L. J., Ch. 829; Agar v. Same Company, 3 C. B., N. S. 725; S. C. 27 L. J., (1) Barrett v. Deere, Mood. & (m) Wilmott v. Smith, Mood. & Malk. 238. In Moffat v. Parsons, 5 Taunt. 307, tender of payment to a servant who, in pursuance of his master's orders, refused to accept it, was held a good tender to the master. office, pro Implied authority of clerk to And an attorney has been held liable to refund money and pay the costs of the application where some one in his office extorted an excessive sum for costs, although the matter did not come to his personal cognizance (n). And payment to a sheriff's bailiff's assistant has been held good as against the sheriff (o). Again, although "it may be admitted that an authority to draw, does not import in itself an authority to endorse, bills, still the endorse bills. evidence of such authority to draw is not to be withheld from the jury, who are to determine on the whole of the evidence whether such authority to endorse exists or not" (p). And, therefore, where the defendants' confidential clerk had been accustomed to draw cheques for them, and in one instance, at least, they had authorized him to endorse, and in two other instances had received money obtained by his endorsing in their names, a jury were held warranted in inferring therefrom that the clerk had a general authority to endorse (q). Smith v. And in a case (r) in which the defendant was held liable upon a charter-party signed by his brother (" per proc. of" the defendant), whom he had left at Limerick to conduct his business, which consisted in buying up corn for shipment, Pollock, C. B., observed :-" It would be most inconvenient if a person could not go into a shop and purchase an article without first asking the shopman whether he has authority to sell it. It may be that he was merely employed to sweep the shop; but it would be absurd to apply to the general business of life the doctrine as to the necessity of ascertaining whether an agent is acting within the scope of his authority-indeed the business of London could not go on." And he afterwards said: "When the holder of a bill has ascertained that the person who has accepted the bill as agent or by procuration is a clerk in the house, and in the course of his employment has from day to day accepted bills of that sort, that is enough, and he need not ask for his power of attorney or authority, nor whether that particular bill is on account of the firm. When you find him in the house acting and recognized as the agent of the firm, you need not make any further inquiry, and yet it may turn out that he has never accepted a bill without a schedule being laid before him in the morning of all bills that were to be accepted by him on that day. Persons are supposed to carry on their business according to the ordinary arrangement of mankind generally. If a person conducts his business as the defendant did, by an agent who acts in his absence, in my judgment it is a question for the jury whether, according to the ordinary mode in which business is carried on, the reasonable conclusion to be drawn from these circumstances is not that he had authority as a general agent, and, if so, the principal is bound, though it should turn out (n) Palmer v. Evans, 1 C. B., N. S. 151. (0) Gregory v. Cotterell, 5 E. & B. 571. (p) Per Tindal, C. J., Prescott v. Flinn, 9 Bing. 22. (q) Prescott v. Flinn, ubi. supra; and see Barber v. Gingell, 3 Esp. 60; Llewellyn v. Winckworth, 13 M. & W. 598; Summers v. Solomon, supra, p. 158. (r) Smith v. M'Guire, 3 H. & N. 561; S. C. 27 L. J., Exc. 465. that he had limited the extent of the agency by certain rules and regulations." And a man has been held liable upon a guarantee given in Guarantee. his name by his son who had signed for his father in three or four instances, and had accepted bills for him (r). cise authority and usual in Where a servant is employed to transact business, and has no Servant particular orders with reference to the manner in which the without prebusiness is to be transacted, he is considered as invested with has all powers all the authority necessary for transacting the business entrusted necessary to him, and which is usually entrusted to agents (s) employed similar cases. in matters of a similar nature. In this respect there is no distinction whether the authority be general or special, express or implied. In each case it embraces the appropriate means to accomplish the desired end (t). Thus a servant sent without money to buy goods has implied authority to pledge his master's credit (u). trusted to Upon this principle it was held in a very old case (a) that if Warranty by a goldsmith make plate wherein he mingles dross, so that it is servant ennot according to the standard, and send his servant to a fair to sell. sell it, who sells it for good plate, according to the standard, an action upon the case lies against the master. And so a horsedealer has been held liable upon the warranty of his servant entrusted to sell, where the warranty was part of the transaction of sale (y). Hawke. And so also where a person who was not a horse-dealer, sent Helyear v. his servant with his horse to Tattersall's for sale, with instructions to warrant him sound, and he warranted him free from vice; the master was held liable upon the warranty, although it was contended on his behalf that the servant was but a special agent, and he having exceeded his authority, the master ought not to be bound. But, said Lord Ellenborough, C. J., "the master having entrusted the servant to sell, he is entrusted to do all that he can to effectuate the sale, and if he does exceed his authority in so doing, he binds his master" (z). And in another Alexander v. case (a), where the defendant's servant, who was entrusted to Gibson. sell and receive the price, sold a horse at a fair to the plaintiff, and warranted him sound, the defendant was held liable for a (r) Watkins v. Vince, 2 Stark. 368. (s) Story on Ag. 60; and see per Lord Wensleydale, in Cox v. Midland Counties Railway Company, 3 Exc. 278. (t) Story on Ag. 85, 97; Howard v. Baillie, 2 H. Bl. 618. (u) Tobin v. Crawford, 9 M. & W. 718. (x) Southern v. How, Cro. Jac. 471; and see Hern v. Nicholls, 1 Salk. 289. As to how far the master is affected by fraud of his servant, see Cornfoot v. Fowke, 6 M. & W. 358; Fuller v. Wilson, 3 Q. B. 58; Jones v. Downman, 4 Q. B. 235, note; Down man v. Williams, 7 Q. B. 103; (y) Fenn v. Harrison, 3 T. R. (z) Helyear v. Hawke, 5 Esp. 72. In Smith v. M'Guire, 3 H. & N. 563, Pollock, C. B., said, "If a man sends his servant to market to sell goods, or a horse for a certain price, and the servant sells them for less, the master is bound by it." (a) Alexander v. Gibson, 2 Camp. 555; see 16 C. B. 113. |