The principal has a direct right against third parties for the acts of his agent. Right of the principal to payment. purchased on behalf of his principal he would be held trustee for the same (a). FOREIGN LAWS. France.-Third parties who have dealt with an agent are deemed to have incurred a direct obligation towards the principal who may sue them direct as a personal obligation. And vice versa those who have contracted with an agent acquire a direct action against the principal. United States. When goods have been sold by the factor the owner is entitled to call upon the buyer for payment before the money is paid over to the factor, and a payment to the factor, after notice from the owner not to pay, would be a payment by the buyer in his own wrong, and it would not prejudice the rights of the principal. If, however, the factor should sell in his own name as owner, and not disclose his principal, and act ostensibly as the real and sole owner, the principal may nevertheless afterwards bring his action upon the contract against the purchaser, but the latter, if he bond fide dealt with the factor as owner, will be entitled to set off any claim he may have against the factor, in answer to the demand of the principal (b). Holland. The principal has a direct right against the party with whom the agent has contracted as such, and may demand the execution of the agreement (c). An agent cannot bind his principal by deed, unless it is executed in his name. SECTION IX. LIABILITY OF THE PRINCIPAL. BRITISH LAW. That an agent may bind his principal by deed, the same must be executed in his name (d). Thus a conveyance by a deed executed by the attorney in his own name is a void conveyance, inasmuch as where an interest is to pass by an instrument, it must in terms purport to be conveyed by him in whom alone that interest is vested. In other commercial contracts, (a) The Bank of London v. Tyrrell, 23 L. J. Ch. 921. (b) Kent's Comment. Vol. ii. p. 821. (c) Dutch Code, § 1836. (d) Wilks v. Back, 2 East, 142. wherever it is sufficiently shown that the true object and intent of the act was to bind the principal and not the agent, the same will be construed as such (a). That the agent may bind his principal, the act done must be within the scope of his authority. Whenever the agent does any act beyond the scope of his power, it is void even as between him and the principal (b). A general agent acting within the general scope of his authority may bind the principal, although acting contrary to express private instructions, if these instructions are unknown to the party acting with the agent (c). But in a case of special agency the agent will bind the principal only when he has strictly adhered to his instructions. Thus where an agent was authorised to sign his name to a note for a certain sum payable at six months, and the agent put the principal's name to a note for the same sum payable in sixty days, it was held that the principal was not liable. If a person sells goods, supposing at the time of the contract he is dealing with a principal, but afterwards discovers that the person with whom he has been dealing is not the principal in the transaction, but agent for a third person, though he may in the meantime have debited the agent with it, he may afterwards recover the amount from the real principal, provided, however, the state of the accounts between the principal and the agent is not altered to the prejudice of the principal (d). The act must be within the scope of the agent's au thority. Special agent principal only will bind his when he strictly adheres to his instructions. Principal liable though the agent may have been debited. agent be pre ferred as On the other hand, if at the time of the sale the seller Unless the knows that the person who is nominally dealing with him is not principal but agent, and also knows who the principal really is, and notwithstanding all that knowledge chooses to make the agent his debtor, dealing with him and him alone, then the seller cannot afterwards on the failure of the agent turn round and charge the principal, having once made his election at the time when he had the power of choosing between one and the other. So if after the disclosure of the principal the seller lie by and suffer the principal to settle the account with his broker for the amount of his purchase, he cannot afterwards charge the (a) Long v. Coburn, 11 Mass. Am. R. 97. (b) Olding v. Smith, 16 Jur. 497, Q. B. (c) Howard v. Braithwaite, 1 Ve.. & B. 202; Fenn v. Harrison, 3 T. R. (d) Cox v. Midland Railway Com- Payment by charges the principal. latter so as to make him a loser, but will be deemed to have elected the broker for his debtor. The election to charge the principal must be made within a reasonable time after the discovery of him; and if, after the discovery, the creditor goes on for nearly a year without any communication with the principal, he must be taken to have elected to take the agent as his debtor (a). and Payment by the agent discharges the principal. And if the the agent dis- creditor voluntarily give an enlarged credit to the agent of the debtor, or adopts a particular mode of payment whereby the principal is placed in a worse situation than he would otherwise have been, the liability of the principal is discharged. A delivery of goods to an agent is a delivery to the principal; a tender to an authorised agent is a tender to the principal. The principal is bound for all the representations of the agent respecting the subject matter of the contract made at the time of the contract. And the principal is also responsible for all frauds, misrepresentations, torts, and negligences of the agent in the course of his employment, and for those also done by those employed by such agent in the execution of the business (b). Principal bound for the representations of the agent and for his frauds and misrepresentations. The principal must fulfil the engagements contracted for him by the agent. Must indemnify the agent for his losses and pay the advances he has made. FOREIGN LAWS. France. The principal is bound to fulfil the engagements contracted by the agent according to his instructions, but he is not bound for anything done beyond that, unless he has ratified it either openly or tacitly. He ought to reimburse the agent of his advances and expenses incurred in the execution of his authority, and pay him the compensation agreed upon. Unless the agent is chargeable with any fault the principal cannot refuse such reimbursement and payment, even when the business has not succeeded well, nor can he demand any reduction of such expenses and advances on the pretext that they might have been less. The principal ought also to indemnify the agent for the losses which he may have suffered in the execution of the authority without any fault or imprudence on his part. (a) Smethurst v. Mitchell, 28 L. J. Q. B. 241; Thomson v. Davenport, 9 B. & C. 86. (b) Udell v. Atherton, 30 L. J. Ex. 337; Cornfoot v. Fowke, 6 M. & W. 358; Hern v. Nicholls, 1 Salk. 282 Ormrod v. Hutt, 14 M. & W. 652. The principal must also pay interests on such advances from the day they were made. When several persons unite in giving authority to an agent, every one of them is bound in solidum for all the effects of such authority (a). SECTION X. TERMINATION OF THE AGENCY. BRITISH LAW. of authority. The agent's authority is determined by revocation, by the Revocation death of the principal, by efflux of time, or by the performance of the commission. A power of attorney is generally revocable, except when it is part of a security for money and when it is necessary to give validity to any security (b). The authority of the agent may be revoked at any time; but, in order to determine the liability of the principal to third parties, the revocation must be publicly notified. When the authority is revoked by death, transactions begun previous to the death may go on, and those done in ignorance of the death are effectual. FOREIGN LAWS. France. An agency ends by revocation of the authority, The principal by renunciation on the part of the agent, and by the natural may revoke the authority or civil death of the principal or agent. The principal at will. may revoke his authority at will, and may compel the agent to return to him the powers he had granted to him. The revocation notified to the agent only cannot be set against third persons who may have dealt with the agent in ignorance of such revocation, though the principal would have his right against the agent. The appointment of a new agent for the same business means the revocation of the authority given to the first from the time it has been notified to the latter. The agent may renounce the agency by intimating (a) French Civil Code, §§ 1998 to 2002. (b) Walsh v. Whitcomb, 2 Esp. 565. Agent may renounce the authority. Modes in which the authority ends. Authority revocable at pleasure. Effect of notice to the agent. his renunciation to his principal. But if such renunciation injures his principal, he ought to be indemnified by the agent,unless it should be impossible for the latter to continue his agency without suffering considerable injury. If the agent is ignorant of the death of his principal, or of any other cause which produces the revocation of the agency, whatever he has done in ignorance of it is valid. In such case the engagements contracted by the agent towards third persons in good faith must be executed. In case of death of the agent his heir must inform the principal, and meanwhile provide whatever is necessary for the interest of the latter (a). United States. The authority of the agent may terminate in various ways. It may terminate by the death of the agent, by the limitation of the power to a definite period of time, by the execution of the business which the agent was intrusted to perform, by a change in the state or condition of the principal, by the express revocation of the power, and by his death. The agent's trust is not transferable either by the act of the parties or by the operation of law. It terminates by his death. If the agent had entered upon the execution of the trust in his lifetime, and left it partially executed but incomplete at his death, his legal representatives would be bound to go on and complete it. A power of attorney or even naked authority is, in general, from the nature of it, revocable at the pleasure of the party who gave it. But where it constitutes part of a security for money, or is necessary to give effect to such security, or where it is given for a valuable consideration, it is not revocable by the party himself, though it is necessarily revoked by his death. In the case of a lawful revocation of the power by the act of the principal, it is requisite that notice be given to the attorney; and all acts bona fide done by him under the power, prior to the notice of the revocation, are binding under the principal. Even if the notice had reached the agent, and he concealed the knowledge of the revocation from the public, and the circumstances attending the revocation were such that the public had no just ground to presume a revocation, his acts done under his former power would still be binding upon his principal. He can, likewise, according to Pothier, conclude a transaction which was not (a) Fren h Civil Code, $$ 2000-201). |