pal by deed must be under seal; there is, however, an exception in the case of two joint contractors, one of whom it has been held may execute a deed for himself and the other without an authority under seal, provided the execution be made "for himself and the other in the presence of that other."(f) When the principal himself is made to covenant, and the agent appears merely as the executing party, if the agent has not an authority, under seal, to warrant his acts, there is no binding contract at all, the principal cannot be bound as he has not legally sanctioned the contract, and the agent cannot be made liable upon it as he has not contracted in his own name. SECTION II. OF THE LIABILITY OF THE PRINCIPAL UPON SIMPLE CONTRACTS.(a) Of the agent's authority to sign writings for the principal-Except for the purposes described in the first, second, and third sections of the statute of frauds; viz., for the purpose of creating leases, estates of freehold, or any uncertain interest in lands, tenements, or hereditaments, other than leases under three years, and except in the case of agents appointed by a corporation to bind the corporate body to certain contracts, a mere verbal authority to the agent will suffice to bind the principal, and in the great majority of instances, an authority binding one man to the acts of another, is raised by implication of law. Any person who accredits another by employing him in any particular course of dealing, is bound by what has been done by such agent in the course of his usual employment, and is responsible to third parties who have dealt with the agent in reliance upon the power and authority with which he was apparently clothed by the principal. Guarantees and policies of insurance.-An action was brought upon a guarantee which was in the hand-writing of the defendant's son, a minor, sixteen years of age. It was proved that the son had signed for the father, in three or four instances, and that he had accepted bills for him, (f) Ball v. Dunsterville, 4 T. R. 313. (a) As to the right of action of the principal upon simple contracts. See ante, 257 to 262. and this was thought by Lord Ellenborough to be sufficient primâ facie evidence of the son's authority to sign the guarantee in question.(b) If B. has repeatedly signed A.'s name to policies of insurance, and A. has subsequently recognized and sanctioned such signatures, the law will imply a general warrant from A. to B., authorizing the latter to sign policies of insurance in A.'s name, and A. will continue liable upon all policies underwritten by B. in the name of A. until the determination of the implied general authority has been publicly announced. (c) The express sanction and recognition of the previous signatures by the principal must of course be distinctly proved.(d) Bills of exchange." If a man has a bill of exchange he may authorize another to indorse his name upon it by parol, or by a power of attorney, and when that is done, it is the same as if he had done it himself." (e) If A. has been "in the habit" of paying bills accepted by B., in his name, (f) or, has in several instances directed B. to sign his (A.'s) name to bills or notes, (g) the law will infer from the acts so permitted to be done, a general authority from A. to B., empowering the latter to make use of A.'s name, (h) and this general authority, will, by implication of law, continue until its determination has been made notorious. (i) But an agent employed specially to sign a contract for his principal upon one particular occasion, would not be impliedly clothed with any general authority to sign contracts for his principal. And a person whose agency had been strictly confined to bill transactions, would not have any implied authority to give a guarantee. The liability of the principal is always to be measured by the nature and extent of the previous employment of the agent, and it is the duty of parties dealing with a person who professes to be an agent, but is not notoriously so, to ascertain the nature and extent of his authority before they deal with him. If they neglect so to do, and it afterwards turns out that the agent had no authority, or has exceeded his authority, the principal will not be bound, and the only remedy they can have will be against the agent himself who has misled them. An agent entrusted with the performance of a particular duty, has an implied permission and authority to do all such incidental acts as are (b) Watkins v. Vince, 2 Stark. 368. (c) Neal v. Irving, 1 Esp. 61; Brockelbank v. Sugrue, 5 C. & P. 21. (d) Courteen v. Touse, 1 Camp. 43 n. (e) Holt, C. J. Anon. 12;. Mod. 564; Attwood v. Munnings, 7 B. & C. 278. (f) Barber v. Gingell, 3 Esp- 60; Haughton v. Ewbank, 4 Camp. 88; Townsend v. Inglis, usual and necessary for the purpose of carrying the main object of the principal into effect in the best and most convenient manner he can. Therefore, an agent employed to get a bill discounted, and not restricted as to the mode of doing it, may indorse it in the name of the principal to facilitate its being cashed, and bind the latter by such indorsement. But, if he is expressly ordered by the principal not to put his name to the bill, and has not been employed by the principal as his general agent to discount and indorse bills, the principal cannot be made liable upon it. (k) And whenever one person is sought to be charged by the acceptance or indorsement of another, in consequence of the latter having, on previous occasions, drawn and accepted, or indorsed bills in his name, it must be distinctly shown that he knew of and had sanctioned such previous acceptances or indorsements.(1) The customary mode of indorsement through the medium of an agent is, by the agent's signing the name of the principal, adding under it " per procuration A. B.," the agent writing his own name. The arrangement of the words is quite immaterial, provided they plainly express that the indorsement is made by one man on behalf of another-as A. for B., B. by A., or by procuration of A., &c.; but the name of the principal, whether the bill be drawn, accepted, or indorsed by the agent, must appear on the face of the bill, it must be expressed that the principal does the act through the medium of his agent, for if the agent merely signs his own name, then the principal cannot be made liable upon it.(m) When, however, a firm, in partnership trade, under the name of " A. & Co.," and such partnership name appears on the face of the bill, all the members of the firm are liable upon it although their individual names do not appear.(n) The principal cannot rely upon any personal incapacity on the part of his agent to contract as a defence against an action brought by those who have dealt with such agent, for the principal who has employed and accredited the agent cannot impugn his own act in the choice he has made. Therefore, although a person under age cannot contract so as to bind himself for any thing beyond the necessaries of life, he may nevertheless contract so as to bind his employer. (o). "If," observes Pothier, "If," observes Pothier, "a merchant has entrusted the management of his business to a minor, he is liable to (k) Fenn v. Harrison, 3 T. R. 757; 4 T. R. 177. (1) Davidson v. Stanley, 3 Sc. N. R. 49; Fearn v. Filica, 7 M. & Gr. 523. (m) Barlow v. Bishop, 1 East, 432; Fenn v. Harrison, 3 T. R. 761; Bank of Scotand v. (n) See post, ch. 18. (o) Watkins v. Vince, 2 Stark. 368. the obligations arising from the contracts made by such minor, without having any right to oppose his want of age." (p) Subsequent ratification by the Principal.-Although no previous authority may have been given by the principal to the agent to enter into and sign the contract upon which the principal is sought to be charged, yet if there be subsequent acts of assent or acquiescence on the part of the principal, he is as much liable upon the contract as if a previous authority had been duly given upon the well known principle of the civil law, "omnis ratihabitio retrotrahitur et mandato priori æquiparatur." If a bill or note be signed without authority by A.'s servant or agent in the name of A., a subsequent promise by the latter to pay the bill is equivalent to a prior authority (q); and if the proceeds of such a bill be applied to A.'s use or for his benefit, with his knowledge or concurrence, such application of the money obtained upon the bill would of itself amount to a subsequent sanction and ratification of the act of the agent. (r) A. and B. being jointly interested in a quantity of oil, A. entered into a written contract for the sale of it without the knowledge of B, who upon receiving information of the circumstance, refused to be bound by it. In an altercation with the purchasers, B. subsequently acquiesced, saying, “Well, then, the oil must be delivered ;" and it was held that the ratification was equivalent to a previous authority, and rendered the contract binding on B." (8) A broker, not acting under previous authority, contracted with the plaintiffs for the purchase of wool by the defendant, and bought and sold; notes were exchanged, copies of which were subsequently shown by the broker to the defendant for his sanction. The defendant approved of the contract, but shortly afterwards he said he would have nothing to do with it, and refused to accept the wool. The plaintiff then, after having given due notice of his intention, sold the wool by auction, at a loss of 2,000l., and brought an action to recover that sum, being the difference between the price which the broker had agreed that the defendant should pay for the wool, and the price at which it had been subsequently sold; and it was held, that, although the broker was not authorized to enter into the contract at the time he did so, yet as the defendant afterwards assented to (p) Pothier, (OBLIGATIONS,) No. 450. The same rule prevails in the civil law. Dig. lib. 14, tit. 3, lex. 7. (q) Fenn v. Harrison, 4 T. R. 177. (r) Bolton v. Hillersden, 1 Ld. Raym. 224, 3 Salk, 235, s. c. (3) Soames v. Spencer, 1 D. & R. 32. the contract which had been entered into in his name, it was in legal effect the same as if the broker had received a previous authority. (t) An adoption of the agency as to one part of a contract generally operates as an adoption of the whole transaction, for an act cannot be affirmed as to so much as is beneficial and rejected as to the residue. Having had the benefit of part of the contract, the principal must take upon himself the burthen of the remainder. (u) "The principal is bound by the act, whether it be for his detriment or his advantage, and whether it be founded on a tort or a contract, to the same extent and with all the consequences which follow from the same act, if done by his previous authority." (x) The subsequent ratification of the contract by the principal relates back to the time when it was made by the agent, and in those cases where, by the statute of frauds, the contract is required to be authenticated by writing, such subsequent ratification renders the agent an agent duly authorized to bind his principal under the provisions of the statute at the time the contract was entered into. (y) Implied general authority to bind the Principal.-From repeated instances of employment, the law infers, as we have already seen, the existence of an implied general authority to the party employed to bind the employer within the limits of the previously recognized dealings. Thus where the defendant had frequently employed an agent who resided in London to order goods for him on credit, and the agent at last ordered goods in the defendant's name, without his authority, and appropriated them to his own use, and afterwards absconded; and it was held that the defendant was responsible for the price of them. (z) Servants entering into contracts on behalf of their masters in the usual course of their employment, bind the latter by their contracts, although in the particular instance they had no authority to do the act in question. If a man sends his servant with ready money to buy goods, and the servant buy upon credit, the master is not chargeable. But if the servant usually buys for the master upon tick," and the servant buys some things 66 (t) Maclean v. Dunn, 1 M. & P. 761; 4 Bing. 722, s. c. (u) Wilson v. Poulter, 2 Str. 857. Hovil v. Pack, 7 East, 164, 166. (x) Tindal, C. J., Wilson v. Tummon, 6 Sc. N. R. 904. Parke, B., Smethurst v. Taylor, 12 M. & W. 554. Doe v. Goldwin, 2 Ad. & E. N. S. 143. (y) 1 M. & P. 777. Si je contract au nom d'une personne qui ne m'avait point donnée de procuration, sa ratification, la fera pareillement reputer comme ayant contracté elle meme par mon ministere, car la ratification e'quipolle à procuration.-Poth. Traité des Obligations, No. 75. (2) Todd v. Robinson, Ryan and Moody, 217 Gilman v. Robinson, id. 226. |