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case (b), Pollock, C. B., ruled that a gentleman was liable for corn ordered in his name by a livery stable keeper, H., who had been his coachman, who used to order corn, &c. of the plaintiff, and who continued to wear his livery. The defendant did not give notice to the plaintiff that H. was no longer in his service. It seems that an account was sent to the defendant; but he did not then give any notice to the plaintiff, who continued to supply corn on H.'s orders.

express or actual notice. And here you have the fact that no accounts were sent in, even to the servant (and none to the master), for four years before the servant's death; and no accounts sent in


Nickson v. Brohan (1713), 10 Mod. 109. Master sent a clerk who had the general management of his cash concerns with a note to a banker to receive money or bank bills, and the servant got another person to give him for the note a draft upon the banker. The banker failed before the draft was presented: the master liable on the ground that a servant, by transacting affairs for his master thereby derives a general authority and credit from him.


Authority of Servant as to Contracts.


Hazard v. Treadwell (1722), 1 Str. 506. Master sent waterman plaintiff to buy iron on credit, and paid for it afterwards; sent the same waterman a second time with money; the waterman received the goods, but did not pay the money.

Helyear v. Hawke (1803), 5 Esp. 71. Person not a horse-dealer sent his servant to Tattersall's with horse for sale, with instructions to warrant sound; servant warranted it free from vice; "servant entrusted to do all that he can to effectuate the sale." Ellenborough, C. J. See, however, Brady v. Todd, p. 216, n. (e), supra, and Woodin v. Burford (1834), 2 Cr. & M. 391.

until after his death, and the plaintiff's removal."

Barrett v. Deere (1823), Mood. & Malk. 200. Payment to a person in

(b) Aste v. Montague (1858), 1 F. & F. 264.


Stubbing v. Heintz (1791), Peake's N. P. 66. Master gave successive servants money to pay the bills once a week; one servant did not pay the bills but bought meat on credit for herself. Master not liable.

Pearce v. Rogers (1800), 3 Esp. 214. Plaintiff sued for price of beer supplied to defendant's family. Defendant dealt with plaintiff for porter used by his family, and was in the habit of paying ready money.

Hiscox v. Greenwood (1802), 4 Esp. 174. See p. 218.

Maunder v. Conyers (1817), 2 Stark. 281. A master not responsible for liquors ordered by his butler in the name of his master without authority, unless he has been in the habit of paying for goods ordered by the butler. Ellenborough, C. J.

Waters v. Brogden (1827), 1 Y. & J. 457. Cheque given by B. to his bailiff to give to C., in whose favour it was drawn; no authority in bailiff to discount the cheque with A.

Sanderson v. Bell (1834), 2 Cr. & M. 304. Semble, payment to an apprentice in master's countinghouse not in the usual course of business is not a good payment to the master.

Hunter v. Berkeley (1836), 7 C, &


a merchant's counting-house, who appears to be entrusted with the conduct of business there, good payment to the merchant though it turned out the person was never so employed by him. Tenterden, C. J. Rimell v. Sampayo (1824), i C. & 1 P. 254, p. 219.

Miller v. Hamilton (1832), 5 C. & P. 433. Baker delivered bread from week to week. He was paid many sums by housekeeper and receipted weekly bills for a date after the time for which housekeeper paid him; defendant liable, as he did not prove he had given to housekeeper money to pay.

Smith v. Hull Glass Co. (1852), 11 C. B. 897. Defendants liable for goods supplied to them on the orders of manager, appointed to superintend and transact, under the control of the directors, the manufacturing business of the company, although no express delegation of authority.' So Totterdell v. Fareham Blue Brick Co. (1866), 35 L. J. C. P. 278; Geake v. Jackson (1867), 36 L. J. C. P. 108.

Summers v. Solomon (1857), 7 E. & B. 879. Defendant, who resided near London, had a jeweller's shop at Lewes managed by A., who gave orders at Lewes for articles to be sent to the shop. Plaintiff, who resided in London, sent articles by A.'s orders to Lewes. A. away from Lewes, came to London, verbally ordered articles of jewellery, and took them away, telling plaintiff he was going to take them to Lewes. Plaintiff had no notice of withdrawal



of agency. Held, that there was evidence which the jury might find A. to be defendant's general manager. But see 3 H. & N. 794.

Smith v. McGuire (1858), 3 H. & N. 561. Defendant liable on charterparty signed by person whom he had left in charge of his business, although that person signed per pro," and had received special instructions, which he exceeded.

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Howard v. Sheward (1866), L. R. 2 C. P. 148; p. 216.

Walker v. Great Western Ry. Co. (1867), L. R. 2 Ex. 228. Defen

dants liable for services of surgeon employed by their general manager to perform an operation on a servant injured by an accident,


P. 413. A. ordered of B. two suits of livery a year for her coachman. At the request of the coachman B. supplied plain clothes instead of one of the suits; B. could recover only for livery supplied.

Acey v. Fernie (1840), 7 M. & W. 151. Payment to country agent of insurance company after period for payment; no authority to vary time of payment.

Metcalfe v. Lumsden (1844), 1 C. & K. 309. An authority to a servant, a common drover, to sell in market overt; not general authority to sell elsewhere. Rolfe, B.

Cox v. Midland Ry. Co. (1849), 3 Ex. 268. Defendants not liable for surgical attendance on injured passengers ordered by station-master. But query: To same effect, Montgomery v. North British Ry. Co. (1878), 5 R. 796.

Gwilliam v. Twist, [1895] 2 Q. B. 84. Driver of defendant's omnibus ordered by police to discontinue driving; driver and conductor tell third person to drive the omnibus to defendant's yard, only a quarter of a mile distant; plaintiff injured by third person's negligent driving. Held, no authority to employ third


Spooner v. Browning (1897), 77 L. T. (N. S.) 685; (C. A.) 78 L. T. (N. S.) 98. Defendants stockbrokers; their clerk received orders from plaintiff, which they carried out, sending him bought notes by the clerk; plaintiff handed cheques to clerk, one of them payable to clerk himself; no communication save through clerk. Other orders given by plaintiff to clerk, who never communicated them to defendants, but forged bought notes and appropriated proceeds of plaintiff's cheques which he thereby obtained. Action by plaintiff against defendants in respect of orders not carried out. Held, no evidence of "holding out" by defendants.

Wright v. Glyn, [1902] 1 K. B. 745 (C. A.). Defendant's coachman received, besides wages, a fixed sum per horse to pay for forage and shoeing: coachman ordered forage on credit from plaintiff, saying he was defendant's coachman, Plaintiff


Langan v. Great Western Ry. Co. (1874), 30 L. T. (N. S.) 173, Ex. Ch., affirming 26 L. T. (N. S.) 577; p. 216.

Beer v. London & Paris Hotel Co. (1875), L. R. 20 Eq. 412. Secretary of company authorised agent to execute contract of sale, both within Statute of Frauds and Companies Act, 1867.

As to servant's authority to give receipts, Thorold v. Smith (1700), 11 Mod. 87; Bridges v. Garrett (1869), 38 L. J. C. P. 242; and Coleman v. Riches (1855), 16 C. B. 104. As to tender to servant being equivalent to tender to master, Moffatt v. Parsons (1814), 5 Taunt. 307; and Wilmott v. Smith (1828), Mood. & Malk. 238. As to admissions by servants, Garth v. Howard (1832), 8 Bing. 451; and Great Western Ry. Co. v. Willis (1865), 34 L. J. Ch. 195.

Watteau v. Fenwick (1892), 67 L. T. (N. S.) 831. H., manager of defendants' public-house, forbidden to buy cigars on credit, bought cigars on credit from plaintiff, who knew at the time nothing of defendants. Held, the purchases within scope of manager's usual authority; defendants liable.


never saw or communicated with defendant. Held, coachman had no ostensible authority to order the forage.




THIS question really belongs to the law of principal and agent ; but some of the points most commonly affecting servants may be noted.

Servants incur no liability on contracts made through them if they contract as their masters' agents.

Servants are subject to the ordinary liabilities of agents. They are not liable if they contract as agents, but if they contract as principals-if they pledge their own credit, if they exceed their authority, or if they contract without authority, they are personally answerable (a). If, in entering into a contract, a servant do not disclose the fact that he is acting for his master, those with whom he deals may sue either him or his master (b). To whom credit was given will be a question for the jury if the servant be sued (c), and if credit has been given to the master, and the servant have had authority, the servant will not be liable; but if credit have been given to the servant, he will not escape liability on the mere ground of agency. The settled principle is that "persons who induce others to act on the supposition that they have authority to enter into a binding contract on behalf of third persons, on it turning out that they have no such authority, may be sued for damages for the breach of an implied warranty of authority" (d).

(a) Cherry v. Bank of Australasia (1869), 38 L. J. P. C. 49; Story on Agency, s. 264.

(b) See notes on Thomson v. Davenport, 2 Sm. L. C. (11th ed.) 379.

(c) Fisher v. Marsh, 34 L. J. Q B.


(d) Cockburn, C. J., in Richardson v. Williamson (1871), L. R. 6 Q. B. 276, 279, referring to Collen v. Wright (1857),

7 E. & B. 301; 8 E. & B. 647, where the costs of an action against the supposed principal were recovered: Downman v. Jones (1845), 9 Jur. 454. Apparently, according to the authorities, a servant would be responsible when he entered into a contract under the belief, bond fide but erroneous, that he had authority: Randell v. Trimen (1856), 18 C. B. 786; Kelner v. Baxter (1866),

But in case of a revocation of authority by death, of which the servant did not know and could not with reasonable diligence have known, the servant will not be liable (e). An agent of the Crown is not liable for breach of warranty of authority (ƒ).

Whether a person, in any particular case, have contracted merely as agent or no, is a question of the intention of the parties to be collected from the facts (g) and, in the case of a written contract, from the contract itself (h). But in the latter case it is to be remembered that no parol evidence will be admitted to contradict the written agreement (i), and the rule is that when a person signs a contract in his own name, without qualification, he is primâ facie to be deemed to be contracting personally (k).

Rightful receipt of money by a servant for his master is receipt by the master, who must be sued for its return (1); à fortiori, if the servant have paid it over to the master (m), even when the payment to the servant has been made by mistake or extorted by duress of which the servant had no notice, before he so paid it over (n); but if he have had such notice, he is liable to repay (0). If the servant obtains possession of money by wrong-doing, he is liable to repay it, though he have paid it over to his master (p);

L. R. 2 C. P. 174, where the defendants contracted on behalf of" a principal who was not in existence: Oliver v. Bank of England, [1902] 1 Ch. 610; 2 Sm. L. C. (11th ed.) p. 392, notes on Thomson v. Davenport; but a servant is not liable for a mistaken misrepresentation of law: ibid. p. 394. As to the measure of damages in an action for breach of warranty of authority, see Re National Coffee Palace Co. (1883), 24 Ch. D. 367.

(e) Smout v. Ilbery (1842), 10 M. & W. 1: Salton v. New Beeston Cycle Co., [1900] 1 Ch. 43, where this principle was applied to revocation by the dissolution of a company.

(f) Dunn v. Macdonald, [1897] 1 Q. B. 401, 555; but servants of the Crown, incorporated by statute, such as the Public Works Commissioners, may be sued upon contracts made by them in their public capacity: Graham v. Public Works Commissioners, [1901] 2 K. B. 781.

(g) Harper v. Williams (1843), 4 Q. B. (N. S.) 219. As to liability of agent on negotiable instruments, see Bills of Exchange Act, 1882, ss. 97, 24, 26; Leadbitter v. Farrow (1816), 5 M. & S. 345; Nicholls v. Diamond (1853), 9 Ex. 154; Dutton v. Marsh (1871), L. R. 6 Q. B. 361,

(h) Tanner v. Christian (1855), 4 E. & B. 591; Parker v. Winlow (1857), 7 E. & B. 942; Gadd v. Houghton (1876), 1 Ex. D. 357; Deslandes v. Gregory (1860), 2 E. & E. 602. As to the liability of receivers and managers, see Burt v. Bull, [1895] 1 Q. B. 276.

(i) At any rate for the purpose of discharging an apparent principal: Magee v. Atkinson (1837), 2 M. & W. 440 (a case of custom); Higgins v. Senior (1841), 8 M. & W. 834; Humfrey v. Dale (1857), 7 E. & B. 266; Sm. L. C. (11th ed.) vol. ii. pp. 403-414.

(k) Cooke v. Wilson (1856), 1 C. B. N. S. 153; Bottomley v. Fisher (1862), 1 H. & C. 211.

(1) Ellis v. Goulton, [1893] 1 Q. B. 350. For cases against revenue officers, see Whitbread v. Brooksbank (1774). Cowp. 69; Campbell v. Hall (1774), Cowp. 205; Atlee v. Backhouse (1838), 3 M. & W. 633.

(m) Cary v. Webster (1716), 1 Stra.


(n) Owen v. Cronk, [1895] 1 Q. B. 265. (0) Buller v. Harrison (1777), Cowp. 565; Cox v. Prentice (1815), 3 M. & S. 344; Murray v. Mann (1848), 2 Ex. 538.

(p) Miller v. Aris (1800), 3 Esp. 232; Snowdon v. Davis (1808), 1 Taunt. 359; Steele v. Williams (1853), 8 Ex. 625,

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