relation of principal and surety is first created by agreement between the co-debtors, and without the concurrence of the creditor, it will, merely by being brought to his notice, affect his rights against them as originally contracted (i). (i) Rouse v. Bradford Banking Co., (1894) A. C. 586; 63 L. J. C. 890. CH. I. CHAPTER II. PRINCIPAL AND AGENT. SECT. I.-PRINCIPLES OF THE LAW OF AGENCY. Appointment of agent to contract-contracts under seal-simple Presumptive agency-agency of wife-of servant-agency from PAGE 308 309 Ratification of assumed agency-profession of agency-existence contract Extent of authority of agent-construction of written authority- Execution of agency-joint and several agents-directors of 311 314 316 Form of execution-contracts under seal-simple contracts...... 318 of agent. Revocation of agency-authority coupled with interest—notice of Indemnity of agent Execution of agency in fraud of principal-agent accountable for 320 322 326 326 PART II. A PERSON capable of contracting may in general appoint an agent Appointment to contract for him. It is not necessary that the agent should be capable of contracting in his own right in order to bind the principal; an infant or a married woman may act as agent; but an agent must be capable of contracting in his own right in order to become responsible to his principal for the proper execution of the agency, so far as such responsibility depends upon contract (a). -"The burden of proof is on the person dealing with anyone as an agent, through whom he seeks to charge another as principal. He must show that the agency did exist, and that the agent had (a) Co. Lit. 52 a;_ Watkins v. Fince, 2 Stark. 368; James, L. J., Re D' Angibau, 15 C. D. 246: 49 L. J. C. 756; King v. Bellord, 1 H. & M. 343; 32 L. J. C. 646. the authority he assumed to exercise, or otherwise that the principal is estopped from disputing it " (b). CH. II. SECT. I. In contracts under seal, the authority to execute for a party to Contracts the deed must be given by an instrument also under seal; which under seal. is commonly called a power or letter of attorney (c); and if the deed is disputed, the authority must be proved as well as the execution under it; but an admission of the principal that it is his deed dispenses with further evidence (d). The memorandum of association of a company is not a deed, though it has a statutory effect as a deed, and it may be executed by an agent without authority under seal (e). seal. In contracts not under seal, no particular form of appointment Contracts is generally necessary. By the Statute of Frauds, sects. 1 and 3, not under relating to the creation, assignment, and surrender of leases and Statute of estates and interests in land, it is required that agents shall be Frauds. "thereunto lawfully authorised by writing." By sect. 4 of the same statute, and sect. 4 of the Sale of Goods Act, 1893, though there is required a memorandum in writing signed by the party or his agent, it is sufficient that the agent be "thereunto lawfully authorised” (ƒ). An agency may be created in express terms, by writing or by Presumptive parol; or it may be presumed from the circumstances and conduct agency. of the parties; and "where one has so acted as from his conduct to lead another to believe that he has appointed someone to act as his agent and knows that that other person is about to act on that behalf, then, unless he interposes, he will in general be estopped from disputing the agency, though in fact no agency really existed" (g). Thus, if a person sends goods to an auction room, or to a repository for sale, or to a factor or broker whose business it is to sell such goods, he is presumed to authorise a sale (h). A wharfinger or warehouseman whose business is the custody of goods only has no apparent authority to sell goods deposited with him (i); but the deposit of goods at a ware (b) Ld. Cranworth, Pole v. Leask, 33 L. J. C. 155; Thomas v. Edwards, 2 M. & W. 215. (e) Berkeley v. Hardy, 5 B. & C. 355. (d) Tupper v. Foulkes, 9 C. B. N. S. 797; 30 L. J. C. P. 214. (e) Re Whitley, 32 C. D. 337; 55 L. J. C. 540. (f) See ante, p. 185. (g) Ld. Cranworth, Pole v. Leask, supra. (h) Ellenborough, C. J., Pickering v. Busk, 15 East, 43. (i) Cole v. North Western Bank, L. R. 10 C. P. 354; 44 L. J. C. P. 233. PART II. From previous dealing. Agency of wife. Agency of servant. Agency necessity. house in the name of a person as apparent owner would raise a presumption of authority to sell (4). So an authority or agency may be presumed from previous dealings of the principal; as the paying of bills or cheques which purported to be signed by an agent on his behalf (1); or buying and selling goods through a person professedly acting as his agent; and in such cases the agency is presumed to continue until notice is given to the contrary (m). An agency may be presumed or implied from the relation of the parties; as in the case of a wife who has a presumptive authority during cohabitation to act as agent for the husband in domestic matters; and when separated under certain circumstances is invested by law with an authority to pledge his credit for her maintenance (n).-So the relation of partners imports a general agency in each partner with reference to the partnership business (0).—In the mere relation of master and servant there is no general authority in the servant to bind the master by contracts on his behalf; so that if a man sends his servant with ready money to buy goods, and the servant buys upon credit, the master is not chargeable. But the master is bound by his usual mode of dealing with others through his servant; so if a servant usually buy for his master upon credit, and takes up things for his own use in his master's name, the master is liable (p). And the master would be bound by receiving goods bought for him on credit, with notice of the credit (g). In some exceptional cases an authority is implied in law from implied from the necessity of the occasion to contract on behalf of the person whose interest is concerned. The master of a ship, upon a necessity arising during the voyage, becomes authorised to pledge the credit of the owner for repairs, and for such supplies and services as are necessary for the prosecution of the voyage; and even to sell the ship or the cargo (). And a common carrier by land, (k) Henderson v. Williams, (1895) 1 Q. B. 521; 64 L. J. Q. B. 308. (1) Prescott v. Flinn, 9 Bing. 19; 1 L. J. C. P. 145; Llewellyn v. Winckworth, 13 M. & W. 598; 14 L. J. Ex. 329; see Davidson v. Stanley, 2 Man. & G. 721; Hogarth v. Wherley, L. R. 10 C. P. 630; 44 L. J. C. P. 330. And see Bills of Exchange Act, 1884, s. 91. (m) Trueman v. Loder, 11 A. & E. 589; 9 L. J. Q. B. 165; Pole v. Leask, 33 L. J. C. 155. (n) See post, Pt. II., Chap. III., Sect. III. (0) See post, Pt. II., Chap. II., Sect. III. (p) Stubbing v. Heintz, 1 Peake, 66; Rusby v. Scarlett, 3 Esp. 76; Summers v. Solomon, 7 E. & B. 879; 26 L. J. Q. B. 301; Wright v. Glyn, (1902) 1 K. B. 745; 71 L. J. K. B. 497. (g) Boulton v. Hillersden, 1 Ld. Raym. 225; 3 Salk. 234. (r) See post, Pt. II., Chap. II., Sect. III. upon an emergency happening, becomes agent by necessity for the CH. II. SECT. I. of assumed agency. Where a person professes to contract as agent for a principal Ratification without having authority, the principal is not bound; but by a subsequent ratification of the authority he may become bound, to the same extent and with the same consequences as if the contract had been originally made with his authority: as expressed in the maxim, "omnis ratihabitio retrotrahitur et mandato æquiparatur” (y). By acting upon the contract, and in some cases by mere acquiescence or not disavowing it within a reasonable time, he is taken to ratify it (≈); but ratification must be based upon a full knowledge of the facts, or upon evidence of a clear intention to adopt the act of the agent in any event (a).-The principal may also claim the benefit of a contract professedly made on his behalf, although it was made without his knowledge (b). And in the case of a policy of insurance made without authority on behalf of another, and a loss supervening, the principal may claim the benefit of the policy after notice of the loss (c).—The subsequent Ratification ratification of the agency is sufficient to satisfy the Statute of under Statute. Frauds, which requires signature by the party or "by his agent (8) G. N. Ry. v. Swaffield, L. R. 9 Ex. 132; 43 L. J. Ex. 89. (t) Cox v. Midland Ry., 3 Ex. 268; 18 L. J. Ex. 65. (u) Walker v. G. W. Ry., L. R. 2 Ex. 228; 36 L. J. Ex. 123. And see Langan v. G. W. Ry., 30 L. T. 173. (x) Bills of Exchange Act, 1882, ss. 65-68. (y) Broom, Legal Maxims, 7th ed. 586, 656. (z) Bigg v. Strong, 3 Sm. & G. 592; affirmed 4 Jur. N. S. 983; 6 W. R. 636. (a) Lewis v. Read, 13 M. & W. 834; 14 L. J. Ex. 295; Freeman v. Rosher, (b) Ancona v. Marks, 7 H. & N. 686; (c) Hagedorn v. Oliverson, 2 M. & S. 485; Williams v. North China Ins., 1 Q. B. D. 757. of Frauds. |