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against the master that he had made a special arrangement with his groom by which for a year the groom was to keep his master's horses properly shod and to furnish them with medicine (1). On the other hand, if a servant chooses to go to a tradesman with whom there have been no previous dealings—if, for example, as was the case in Hiscox v. Greenwood (m), a coachman sends, without his master's knowledge, a chaise to a coachmaker who had never been before employed—the master incurs no liability. A common example of this principle occurs when a servant is allowed to make repeatedly purchases on credit. Tradesmen dealing with him are entitled to assume that he has in these circumstances authority to do that which he usually does with the knowledge or permission of his master, in the absence of notice that his authority is limited, or has been withdrawn. Accordingly, if a servant who usually buys for his master on credit, appropriates to his own use things which have been so bought, the master is liable. On the other hand, if the servant is always in cash beforehand to pay for goods, the master is not liable if the servant misappropriates the money or the goods (n). “Nothing,” said Lord Kenyon, in Stubbing v. Hentz (0), “could be clearer than that where a man gives his servant money to pay for commodities as he buys them, if the servant pockets the money, the master will not be liable to pay it over again.”
To rebut the presumption of authority raised by a previous course of dealings, it must be shown that notice was given of the intention to make a change. The cases seem to sbow that notice to a servant of a tradesman will not suffice. In Gratland v. Freeman (p) it appeared that the defendant was in the habit of dealing with the plaintiff, a publican, on credit. He paid his bill and then gave notice to the plaintiff's servant that he would run up
(1) Precious v. Abel (1795), i Esp. 350.
(m) (1802), 4 Esp. 174.
(0) (1791), 1 Peake, N. P. 66.
no more bills, but only pay for beer as it came. Lord Eldon ruled that the defendant must show that the plaintiff had notice of this change in the manner of dealing, and that notice to the servant alone would not be sufficient.
Even if there have been no previous dealings, the master's conduct may amount to a representation that the servant bas authority to contract in his name. Thus, when a coachman with whom his master had a private arrangement that he was to provide horses, went to a stable keeper in his master's livery and ordered horses, the master was liable. Littledale, J., in directing the jury, said “If he (the servant) made the contract in his own name, and represented to the plaintiff the agreement between himself and the master, of course under such circumstances the plaintiff cannot recover. But if he made no such representation of any agreement between himself and his master, I think that, by the master's sending him forth into the world wearing his livery, to hire horses which he (the master) afterwards uses, knowing of whom they were hired, and yet not sending to ascertain if his credit had been pledged for them, an implied authority is given, and the master is bound to pay the hire” (q).
A master will render himself liable if he ratifies the acts of his servant. Ratification may take place in many ways. If the servant orders goods in his master's name, and the latter uses them, knowing or having grounds for believing that they have been so ordered, he will be held to have ratified bis servant's act. If he ratify a contract concluded by his servant, he will ratify it altogether. Thus if he receive the price of a horse sold by his servant, he will be bound by a warranty which the servant may have given in selling it (r).
It is often a difficult question, especially when contracts are made orally, to determine whether a master or a servant has been, in fact, trusted. If the servant did not act as
(9) Rimell v. Sampayo (1824), 1 C. & P. 254.
(r) Bristowe v. Whitmore, 4 L. T. N. S. 622.
his master's agent-if he either expressly or by implication contracted on his own behalf—the master is not liable (s).
Has a servant power to pledge his master's credit after he quits his employment? This is a mixed question of law and fact, and depends upon whether his master still in any way holds the servant out to the world as his agent. With reference to a servant, who had been in the habit of drawing bills of exchange in his master's name, and who was discharged, Holt, C. J., said, “If he draw a bill in so little time after that the world cannot take notice of his being out of service, the bill, in these cases, shall bind the master" (t). In a Nisi Prius case (u), 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.
In some cases both master and servant will be bound. This will happen when a servant contracts as the agent of his master without naming his master, according to a wellknown rule of law, that an undisclosed principal or his agent may be sued (y).
(s) Williamson v. Barton (1862), 7 H. & N. 899; 31 L. J. Ex. 170 ; 5 L.T. N. S. 800.
(1) Anon. y. Harrison (1699), 12 Mod. 346.
In Stavely v. Uzielli (1860), 2 F. & F. 30, Erle, C. J., ruled thus : “Although the law is clear that the master who has once held out a servant as having authority to contract on credit must withdraw that authority by notice, not to the servant, but to the tradesman, and that it is not enough to do so merely by notice to the ervant; yet
there is much more than that in this case, and there may be notice by other means than 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 until after his death, and the plaintiff's removal.”
(u) Aste v. Montague (1858), 1 F. & F. 264.
(y) 2 Sm. L. C. 8th ed. 360.
AUTI RITY. Nickson V. Brohan (1713), 10 Mod. 109; master sent a clerk who hail 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 there. by derives a general authority and credit from him.
Hazard v. Treadwell (1722), 1 Str. 506. Master sent waterman to 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
NO AUTHORITY. Stubbing v. Heint: (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. 247.
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. & 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), I C. & K. 309. An authority to a
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 free from vice; servant entrusted to do all that he can to effectuate the sale.” Ellenborough, C.J. See, however, Brady v. Todd, and Woodin v. Burford (1834), 2 Cr. & M. 391.
Barrett v. Deere (1823), Mood. & Malk. 200. Payment to a person in 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), 1 C. & P. 254. p. 248.
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
NO AUTHORITY. after the time for which house- servant, a common drover, to keeper paid him ; defendant liable, sell in market overt; not general as he did not prove he had given authority to sell elsewhere.to housekeeper money to pay.
Rolfe, B. Smith v. Hull Glass Co. (1852), Cox v. Midland Ry. Co. (1849), 11 C. B. 897. Defendants liable 3 Ex. 268. Defendants not liable for goods supplied to them on the for surgical attendance on injured orders of manager, appointed to passengers ordered by stationsuperintend and transact, under master. But query. To same efthe control of the directors, the fect, Montgomery v. North British manufacturing business of the Ry. Co. (1878), 5 R. 796. 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 upon which the jury might find A. to be defendant's general manager. But see 3 H. & V. 794.
Smith v. McGuire (1858), 3 H. & N. 561 ; 27 L. J. Ex. 465. Defendant liable on charter-party 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.
Howard v. Sheward (1866), 12 Jur. N. S. 1015; 36 L. J. Ć. P. 42 ; L. R. 2 C. P. 148. p. 245.
Walker v. Great Western Ry Co. (1867), L. R. 2 Ex. 228 ; 36 L. J. Ex. 123; 16 L. T. N. S. 327. Defendants liable for services of surgeon employed by their general manager to perform an operation