CHAPTER XXV.

ASSIGNMENT OF PERSONAL CONTRACTS.

CONTRACTS of hiring and service cannot be transferred or assigned without the consent of the parties thereto (a).

Master and servant both contract with regard to the personal qualities of each other. The relation is one of personal confidence, and the one cannot compel the other to accept a third person in substitution. If A., for example, sells his business to B., he cannot turn over D., his servant, to the purchaser. Neither will a servant be permitted to say to his master, "I decline to work myself, but I have procured a competent substitute," or, "I have let out a part of the work." In one case the plaintiff was employed as master of a ship; he engaged A. to act for him. In an action which the former brought for wages, it was held that B. could not recover, as the contract contemplated personal service (b).

In like manner the contract of apprenticeship is primâ facie not assignable (c). As it is expressed in Coventry v. Woodhall, "The matter of putting an apprentice is

(a) Addison on Contracts, 7th ed., 311; Pollock on Contracts, p. 411.

(b) Campbell v. Price (1831), 9 S. 264; Schmaling v. Tomlinson (1815), 6 Taunt. 147. (A. employed by defendant to carry goods to a foreign market; A. delegated the performance to plaintiff, who did the work without knowledge of the defendant; plaintiff could not recover compensation for services from de

fendant). See also Stevens v. Benning (1854), 1 K. & J. 168; 6 D. M. & G. 223 (agreement between author and publisher); Robson v. Sharpe (1831), 2 B. & A. 302. As to servant agreeing to serve master's assignee, Benwell v. Inns (1857), 26 L. J. Ch. 663.

(c) Baxter v. Burfield (1747), 2 Str. 1266; Horne v. Blake, 2 Str. 1267.

a matter of great trust, for his diet, for his health, for his safety; and therefore I will, by choice, commit him to one and not to another" (d). Such a contract, however, may be assignable if the master's assignees, or executors are named (e), or if there be, as is the case in the City of London, a custom in virtue of which an apprentice may be turned over to a new master (ƒ).

(d) Hob. 134 A.

(e) Cooper v. Simmonds (1862), 7 H. & N. 707; 31 L. J. M. C. 138. An infant bound himself apprentice to a tradesman, his executors and administrators for seven years carrying on the same business in the town of Wolverhampton; the apprentice bound to serve the widow, who was sole executrix, and who carried on the same business in Wolverhampton.

(f) Rex v. Peck (1699), 1 Salk. 66; Boochier v. Coster, Keble, 250. But

apparently, the assignee could not sue on the deed; Show. 4. There are authorities (Wadsworth v. Gye, Sid. 216; Walker v. Hull, 1 Lev. 177) that where a master covenants to find the apprentice in meat, drink, and necessaries during the terin of apprenticeship, his executors are bound to perform the covenant. But query. As to right to appoint deputies, Phelps v. Winchcombe, 3 Bulst. 77; Walsh v. Southworth, 6 Ex. 150.

CHAPTER XXVI.

SERVANT'S AUTHORITY AS TO CONTRACTS.

A SERVANT may bind his master by contracts (1) when he is specially authorised to do so; (2) when he is placed in a position of trust for the due discharge of which authority to make such contracts is necessary or usual; or (3) when third persons have reason to believe from his master's conduct that he has authority to bind his master.

When a master entrusts to a servant the performance of certain duties, it will be held that there is an implied authority or mandate to enter into contracts which are necessary or usual for the performance of such duties, and persons dealing with servants will not be affected by restrictions which are placed upon the servants' authority unless such restrictions are known to them (a).

The relation of master and servant invests the latter with no authority to bind the former (b), but the servant may have from the particular duties assigned to him the right to bind his master in regard to contracts. When, for instance, a foreman employed by the owner of a sawmill agreed to supply a quantity of fir-staves, the latter, it was held, was bound by the contract though he had given his foreman no special authority to enter into it (c). It will often be left to a jury to say whether

(a) For early authorities on this subject, see Doctor and Student, II., chap. xlii., and Noy's Maxims, p. 58. One can see by Nickson v. Prohan, 10 Mod. 110, how uncertain the law was in 1710. See Hibbs v.

Ross (1866), L. R. 1 Q. B. 534.

(b) Leake on Contracts, 467. (c) Richardson v. Cartwright (1844), 1 C. & K. 328. Compare Daun v. Simmins (1880), 44 J. P. 284.

a servant had authority to enter into a particular contract. Thus in Langan v. The Great Western Railway Company (d), passengers injured in a collision on defendants' line were carried into plaintiff's inn. The sub-inspector of railway police for the district, who was for the time being the superior of all the station-masters and servants of the company, was on the spot; and he ordered brandy to be given to one of the injured persons. In reply to a question put by the plaintiff as to who would pay for the maintenance of the injured persons, he said, "Don't trouble yourself about that; we'll see that is all right." The plaintiff brought an action against the defendants for board, lodging, and necessaries supplied to the injured passengers. It was held, affirming the view of the Queen's Bench, that there was evidence to go to the jury in favour of the plaintiff. "The sub-inspector," said Bramwell, B., " was the chief person there. It was the interest of the company that the mischief resulting from the accident should be the smallest possible, if the company were liable, and the company might be. Then is there a necessity under circumstances such as these, for what may be called instantaneous action? Surely it is reasonable to say that the person who is chief in office where the accident takes place, should have authority to do those things which must be done at once, and which are presumably for the benefit of the company." On the same principle of what is sometimes called necessary authority," the servant of a horse-dealer, or livery stable keeper, was entitled to bind his master by giving a warranty, although he had express orders not to give it (e). On the other hand, if the servant of a person who does not carry on the business of horse dealing, is entrusted to sell a horse on one occasion, and gives a warranty without authority from his master, it will not be binding (ƒ).

(d) (1874), 30 L. T. 173.

(e) Howard v. Sheward (1866), L. R. 2 C. P. 148; 36 L. J. C. P. 42; 12 Jur. N. S. 1015. In this case evidence of a general practice

among horse dealers not to warrant was held to be not admissible.

(f) Brady v. Todd (1861), 9 C. B. N. S. 592; 30 L. J. C. P. 223; 4 L. T. N. S. 212; 9 W. R. 483;

There is no implied authority to do what is unusual; and hence when an agent appointed by a mining company to manage a mine, borrowed money of the plaintiffs who were bankers, it was held he had no authority to bind the company (g). So owners of a ship are bound by contracts of a master with respect to the usual employment of the ship (h). But he cannot bind the owners to a contract at variance with the usual employment of the ship, e.g., to carry goods for freight payable to other than the owner (i). The distinction is often expressed by saying that when a man appoints a general agent, he is bound by all his acts, but that when he appoints a special agent he is bound only to the extent of the authority which he has in fact given (k). But this distinction does not bring out the fact that, when a person appears to be a general agent, the master is bound by his acts and is estopped from denying his authority; that the important point is not what the agent's powers are, but what they seem to be; and that, notwithstanding an arrangement to the contrary, it will be assumed that he has usual authority. If, however, a person dealing with a servant knows that he has a special or limited authority, he is bound to see that the authority is observed.

A servant may have authority from the course of previous dealings to bind his master; if they would naturally lead tradesmen and other persons to believe that a servant is authorised to pledge his master's credit, the latter will be liable. A private arrangement between them forbidding buying on credit, or attaching conditions to doing so, will be no defence. In the case of a groom, who took his master's horses to a smith and farrier to be shod and to be doctored, Lord Kenyon ruled that it was no defence to an action

Helyear v. Hawke (1803), 5 Esp. 71; Miller v. Lawton, 15 C. B. N. S. 834.

(g) Hawtayne v. Bourne (1841), 7 M. & W. 595.

(h) Myers v. Willis (1855), 17 C. B. 77; 18 C. B. 886; Sandemann v. Scurr (1866), L. R. 2 Q. B. 86.

(i) Reynolds v. Gex (1865), 34 L. J. Q. B. 251.

(k) Lord Kenyon in East India Co. v. Hensley (1794), 1 Esp. 112; Ashurst, J., in Fenn v. Harrison (1790), 3 T. R. 760; Story on Agency

sec. 126.