the subject matter because he had not first ascertained the extent of the agent's powers? In transactions that are of a very unusual character, and where power is rarely granted to an agent to bind his principal, except within very strict limits, it may be a very necessary caution in the party dealing with the agent to know first, the extent of his authority; but in ordinary transactions who would think of suspending the treaty in order to write to the principal to make inquiries lest the agent might not have full power or information to answer them."(m) Therefore, if an agent is sent by his principal into the market with a bill of exchange to get it discounted, and the agent in the execution of his commission indorses the bill in the name of his principal, the latter is bound by the indorsement and may be sued thereon, although he gave his agent no express authority to put his name to the instrument.(n) So if the principal sends his horse by the hands of an agent to market to be sold, and the agent warrants the horse to be sound, the principal is liable to an action upon the warranty at the suit of the purchaser, although he gave no express authority to the agent to warrant the horse. (0)

It has been said that if the principal gives his agent express orders not to warrant, and he nevertheless does warrant, the principal is not responsible on the warranty because the agent was not acting within the scope of the authority given him.(p) But it is impossible for the buyer to know whether the agent is, or is not exceeding the private instructions of his principal; and it can hardly be contended, that a principal is to be allowed to have the benefit of the warranty, and at the same time to say that his agent had no power to make it. (q) If in consequence of the representation or warranty so made, he has obtained the price of a sound horse for an unsound horse; if he has obtained 607. for an animal which was not worth 107., is it to be supposed for one moment that he can be permitted to keep the 501., any more than if he had been the actual seller of the animal himself, and had made the warranty with his own mouth? It was his own fault, as Lord Holt has observed, to repose the trust in unworthy hands, and he shall not be allowed to derive a profit from the misconduct of his own servant to the prejudice of the innocent purchaser. I very much doubt," observes Lord Kenyon, C. J. " the case alluded to by the

(m) Lord Abinger, C. B. Cornfoot v. Fowke, 6 M. & W., 384, 385.

(n) Fenn v. Harrison, 4 T. R., 177. (o) Alexander v. Gibson, 2 Campb. 555; Helyear v. Hawke, 5 Esp. 71.

(p) Ashurst, J., 3 T. R. 760.

(7) Such secret instructions, justly observes

Pothier, "me donne bien une action en dommages contre mon procureur, pour n'avoir pas suivi les instructions secrètes que je lui avais données; mais il ne peut me dégager envers celui avec qui il a contracté en mon mon, conformement au pouvoir apparent qu'il lui a représenté." OBLIGATIONS, No. 79.

defendant's counsel, of the servant warranting the horse against the direction of his master, to such a case, I think the maxim respondant superior pplies; and the principal has his remedy against his agent for his misconduct."(r) So, also, observes Lord Abinger-"In the case of a servant employed to sell a horse, but expressly forbid to warrant him sound, is it to be contended that the buyer, induced by the warranty to give ten times the price which he would have given for an unsound horse, when he discovers the horse to be unsound, is not entitled to rescind the contract," (s) and recover back the purchase money from the principal ?

But it is not every affirmation and representation, as we have already seen, (ante, 167, 168,) which will be binding upon the principal. If the fact, concerning which the representation is made, lies as much within the knowledge of the one party as the other, or even if its correctness or incorrectness may be ascertained by the party interested in knowing the truth, by the exercise of ordinary inquiry and diligence, and the agent making the statement merely says what he believes to be true, and expresses his opinion in an ordinary conversation about the matter, leaving the party dealing with him to test the accuracy of his statement by more extended inquiries, (he having the means of so doing within his reach,) there is no warranty on the part of the agent of the truth of what he states; it is understood only, under such circumstances, that he does not wilfully state that which he knows to be false, either to mislead or to lull to sleep the vigilance of the other contracting party. And if there is, under such circumstances, a defect unknown to the party making the statement, and which the other party had as good means of discovering as the agent himself, the rule of caveat emptor applies, and the principal is discharged. (1)

A servant, serving in a shop and demanding only the ordinary marked price of the wares he sells, may be asked this and that question as to the fitness of the different articles for particular purposes, and his answers to such queries would, in most instances, be considered the mere expression of his own individual judgment and opinion, given by way of guidance and advice to the purchaser, and not as warranties binding the principal to the truth of his representations.

In order to charge the principal, it must not only be shown that the re

(r) 3 T. R., 760. Pickering v. Busk, 15 East, 43, 45. Nemo potest mutare consilium suum in alterius injuriam. Dig. lib. 50., tit. 17, 75.

(8) Cornfoot v. Fowke, 6 M. & W. 358. "The only real difference," observes Alderson,

B., "between Lord Abinger and the rest of the Court, in Cornfoot v. Fowkes, was whether the particular representation there made was part of the contract." 3 Ad. & E. N. s., 73.

(t) Wilson v. Fuller, 3 Ad. & E. n. s. 72; Collins v. Evans, 5 Ad. & E. N. s.. 828.

presentation was made at the time the contract was entered into, but that it formed part of the foundation on which the contract rests. "What the

agent said at the time of a sale respecting the things sold, is evidence against the principal, but not what he has said at another time.”(u) Therefore if an agent employed by his principal to find parties willing to contract, and then send them to the principal to conclude the bargain with him, makes in the course of conversation with them, statements and representations respecting the subject matter of the contract, which are not afterwards included in the contract entered into with the principal himself, the latter will not be bound by them. If the parties wish to have the subject matter of the contract handed over to them in any particular state or condition, and at preliminary conversations between themselves, and the agent, the latter represents it to be in the state they wish it to be, believing it, at the time, to be so, and the parties afterwards conclude the bargain with the principal in person, without saying anything at all about the assurances they have received from the agent, or taking care to incorporate them into the contract they then enter into with the principal, they cannot afterwards treat such representations as forming any part of that contract so as to charge the principal with the fulfilment of them.

A house agent was employed to obtain a tenant for a house and premises, and in going to show the house to the defendant who had applied for it, he was asked if there was any thing objectionable about the house, to which the agent replied, "Nothing whatever." After this conversation, the parties differed about the rent, and the treaty was broken off. Subsequently, however, it was renewed, and after some negociation, the rent, which had originally been put at 450 guineas, was reduced to 3757., and the defendant then expressed his willingness to take the house. The matter was then referred to the principal, and a contract for the letting and hiring of the house was subsequently entered into between the principal himself and the defendant, which contract made no mention of the previous representation or assurance of the agent, nor was the principal aware at the time be executed the contract, that any such assurance had been given, and it was held that as the defendant had neglected to make it a term of the contract, which he afterwards entered into with the principal, the latter could not be held bound by the representation.(x)

Frudulent concealment and deceit on the part of the principal and not of the agent If a principal, desirous of selling or letting property, knows

(u) Helyear v. Hawke, 5 Esp. 73.

(x) Cornfoot v. Fowke, 6 M. & W., 358;

Strode v. Dyson, 1 Smith, 400.

of a latent defect, "and expressly authorizes his agent to state that it does not exist, or to make any statement of similar import; or if he purposely employs an agent ignorant of the truth, in order that such agent may innocently make a false statement, believing it to be true, and may so deceive the party with whom he was dealing; in either of these cases he would be guilty of a fraud." The representation of the agent, made under such circumstances, "would be the representation of the principal, and, coupled with his knowledge of its falsehood, would, doubtless, be a fraud."(y)

In contracts for the letting and hiring of landed property, there is no implied warranty or undertaking on the part of the lessor that it is fit for the purpose for which it is let, or that it is in any particular state or con. dition at the time of the demise; (2) and it has accordingly been held by the Court of Exchequer, that although a principal who employs an agent to let a house knows that the house is encumbered with a nuisance of so serious a nature as to render it an unfit place of residence for any family of respectability, yet he is not guilty of any fraud in the eye of the law by neglecting to make known the existence of the nuisance to the agent, and through him to the parties who contract for the hiring of the house. Thus, where a ready furnished house, situate in a fashionable quarter of London, and apparently suitable for the accommodation of a family of respectability, adjoined a brothel of the very worst description, and the principal was fully aware of the existence of the brothel, and of the extent of the nuisance, but neglected to mention it to the agent, and the latter, in ignorance of its existence, procured a tenant who agreed with the principal to take the house at a rent of 3751. per annum, which rent never could have been secured if the tenant had, at the time he entered into the contract, known of the brothel next door, it was held that the passing over in silence, by the principal, of this nuisance, was not in contemplation of law a fraud upon the tenant, rendering the principal responsible for the concealment.(a) The common law does not seem to take any note of latent defects in realty, and if there has been no express misrepresentation by the principal as to the state and condition of the property, and no actual attempt or contrivance to conceal and keep out of view a defect, there is no deceit nor any breach of contract.

A very different doctrine prevails in the civil and continental law upon

(y) Per Rolfe, B., and Parke, B. Cornfoot v. Fowkes, 6 M. & W. 370, 374. Wilson v. Fuller, 3 Ad. & E., N. s. 68, 75, 1009.

(2) Hart v. Windsor, 12 M. & W. 68, post, ch. 22.

(a) Cornfoot v. Fowkes, 6 M. & W. 358.

this subject,(b) and also in our own law as regards the letting and hiring and sale of moveable chattels. Thus, as we have already seen, in the case of a sale of goods, the law implies a promise from the vendor to the purchaser, that he does not at the time of the sale know of any latent defect materially lowering the value of the goods in the market, and the passing over in silence of a defect known to the vendor, and resting peculiarly within his knowledge, and which ought in good faith to have been disclosed to the purchaser, is equivalent in contemplation of law to an express representation, or even a warranty of its non-existence. (Ante 219, 220, et seq.) And if a principal employs an agent to sell a moveable chattel, and keeps such agent in ignorance of a defect which ought to have been made known, and thereby either causes the agent to make a statement which is contrary to the truth, or to leave the defect undisclosed, and the principal thus obtains the produce of a bargain which could not have been secured if the truth had been known, he is as much responsible for the concealment to the parties who have been deceived and injured as if he had completed the bargain himself without the aid or intervention of any servant or agent at all in the business. If, for example, the principal sends his agent into the market with a bill of exchange which he knows at the time to be a worthless security, and tells his agent not to indorse it, as he does not intend to make himself liable upon it, but to sell the security for what he can get for it, and the agent believing it to be a good bill because he has not been told the contrary by his principal, either expressly represents it to be a good security, or says nothing at all upon the subject, but gets cash for it upon the faith that there is no fraud or concealment in the matter, the principal cannot retain the money he has procured through the medium of such a transaction, but renders himself liable to an action at the suit of the party who has been defrauded of his money. "It is extremely clear that if the holder of a bill of exchange sends it to market without endorsing his name upon it, neither morality nor the laws of this country will compel him to refund the money for which he has sold it, if he did not know at the time, that it was a good bill. If he knew the bill to be bad, it would be like sending out a counter into circulation to impose upon the world instead of the current coin, and there is no doubt but that he would be obliged to refund the money."(c)

So if an agent is employed to let out a moveable chattel, such as a car

(b) Dig. lib. 19; tit. 2; Pothier, (LOUAGE,) No. 22, 148. Vin. Com. 758, 766; Cicero de officiiis lib. 3, 13, p. 1246, ed. Amst. 1661, cited by Ld.

Abinger, 6 M. & W. 380.

(c) Ld. Kenyon, C. J.; Fenn v. Harrison, 3 T. R. 759.