ment a wider term than extensive with 'employment,' though writers careless of Employterminology are apt to speak generally of a person employed as the agent of the employer. By agency I mean employment for the purpose of bringing the employer into legal relations with a third party. [*332] * agency. an act for a promise; Such is the fication. (B) Or secondly, the relation may be created by the By offer of acceptance of an executed consideration. case where A ratifies a contract which X, antecedent authority, has made on his behalf. A accepts the bargain and thereby takes over its liabilities from X. (7) Or thirdly, the relation may be created by mutual promises, to employ and remunerate on one side, and to do the work required on the other. We will now speak no longer of employer and employed, but of principal and agent. The authority given by the principal to the agent, enabling the latter to bind the former by acts done within the scope of that authority, may be given by writing, words, or conduct. By offer of for a a promise promise. Formal grant of authority for contract In one case only is it necessary that the authority requisite should be given in a special form. In order that an agent may make a binding contract under seal it is neces- under seal. sary that he should receive authority under seal. formal authority is called a power of attorney.1 Such a duct: Nothing need be said as to the formation of the contract (i) Conby writing or words which has not been said in the chapter on offer and acceptance. As regards its formation by conduct the inference of intention may be affected by the relation in which the parties stand to one another. and If a master allows his servant to purchase goods for him in case of of X habitually, upon credit, X becomes entitled to look master to the master for payment for such things as are supplied servant: in the ordinary course of dealing. 1 Parol authority is sufficient if the seal is unnecessary to the operative effect of the instrument. Wagoner v. Watts, 44 N. J. L. 126. Or if the instrument be executed in the presence of the principal. Gardner v. Gardner, 5 Cush. (Mass.) 483. 1 Shower, 95. of hus band and wife: Debenham v. Mellon, Thesiger, L. J., 5 Q. B. D. 403. different rule for partners. So too with husband and wife. Cohabitation does not necessarily imply agency. But if the wife is allowed to deal with a tradesman for the ordinary supplies of the household, the husband will be considered to have held her out as his agent and to be liable for her purchases. Yet there is nothing in the relations of master and servant *or husband and wife, to give any inherent [*333] authority to the servant or the wife. The authority can only spring from the words or conduct of the master or husband. We can see this more clearly, if we contrast these relations with that of partnership. Marriage does not of itself create the relation of agent and principal: partnership does. The contract of partnership confers on each 58 & 54 Viet. partner an authority to act for the others in the ordinary course of the partnership business. And each partner accepts a corresponding liability for the act of his fellows. c. 39. § 5. Hawken v. Bourne, 8 M. & W. 710. 15 East, 38. ibid. 43. The relations above described, marriage and employment, enable an authority to be readily inferred from conduct. But apart from these, the mere conduct of the parties may create an irresistible inference that an authority has been conferred by one upon the other. In Pickering v. Busk the plaintiff allowed a broker to purchase for him a quantity of hemp, which by the plaintiff's desire was entered in the place of deposit in the broker's name. The broker sold the hemp and it was held that the conduct of the plaintiff gave him authority to do so. 'Strangers,' said Lord Ellenborough, can only look to the acts of the parties and to the external indicia of property, and not to the private communications which may pass between a principal and his broker: and if a person authorize another to assume the apparent right of disposing of property in the ordinary course of trade, it must be presumed that the apparent authority is the real authority.' We may, if we please, apply to these cases (excepting, of course, partnership) the term agency by estoppel. They differ only in the greater or less readiness with which the presumption will be created by the conduct of the parties. For estoppel means only that a man may not resist an inference which a reasonable person would necessarily draw from his words or conduct.1 Circumstances operating upon the conduct of the parties (ii) Nemay create in certain cases agency from necessity. [*334] *A husband is bound to maintain his wife: if therefore he wrongfully leave her without means of subsistence she becomes an agent of necessity to supply her wants upon his credit.' cessity: Eastland v. 3 QB.D. Glossop, may create agency contractu. quasi ex Kemp v. Ves. 246. A carrier of goods, or a master of a ship, may under certain circumstances, in the interest of his employer, pledge his credit, and will be considered to have his authority to do so. It has even been held that where goods are exported, unordered, or not in correspondence with samples, the consignee has, in the interest of the consignor, an authority to effect a sale of them. But here the relation of principal and agent does not arise from [Gwilliam v. agreement, it is imposed by law on the circumstances of the parties. The agent occupies the position of the negotiorum gestor of Roman law.2 Twist, 43 W. R. 566.] It remains to consider ratification, or the adoption by (iv) RatiA of the benefit and liabilities of a contract made by X on his behalf, but without his authority. The rules which govern ratification may be stated thus: fication: which The agent must contract as agent, for a principal who rules is in contemplation, and who must also be in existence at the time, for such things as the principal can and lawfully may do. 1 Martin v. Webb, 110 U. S. 7; Johnson v. Hurley, 115 Mo. 513. 2 Benjamin v. Dockham, 134 Mass. 418; McCready v. Thorn, 51 N. Y. 454; Terre Haute &c. R. v. McMurray, 98 Ind. 358. Cf. Sevier v. Birmingham &c. R., 92 Ala. 258. Huffcut on Agency, §§ 54-59. govern it. Wilson v. Tumman, 6 M. & G. 242. Agency must be declared, See post, p. 350. for a con templated Wilson v. 6 M. & G. Watson v. Swann, An act done for another, by a person not assuming to act for himself, but for such other person, though without any precedent authority whatever, becomes the act of the principal, if subsequently ratified by him. In that case the principal is bound by the act, whether it be for his detriment or his advantage, and whether it be in tort or in contract.' (a) The agent must contract as agent. He must not incur a liability on his own account and then assign it to some one else under colour of ratification. If he has a principal and contracts in his own name he cannot divest himself of the liability to have the contract. enforced against him by the party with whom he dealt, who is entitled under such circumstances to the alternative liability of the agent and principal. If he has no principal and contracts in his own name he can only divest himself of his rights and *liabilities in favour of another by assignment to that other; subject to the rules laid down in Part II. ch. ii. § 1. [*335] (b) The agent must act for a principal who is in contemplation.1 He must not make a contract, as agent, with a vague expectation that parties of whom he is not cognizant at the time will relieve him of its liabilities. The act must be done for another by a person not assuming to act for himself but for such other person.' This does not prevent ratification in the case of a broker who makes contracts, as agent, expecting that customers with whom he is in the habit of dealing will take them off his hands. Thus, in contracts of marine insurance, persons who are not named or ascertained at the time the policy is effected are allowed to come in and take the benefit of the insurance. But then they must be persons who were contemplated at the time the policy was made.' So too where work is done on behalf of the estate of a 1 Hamlin v. Sears, 82 N. Y. 327; Western Pub. House v. District Tp. of Rock, 84 Iowa, 101. deceased person, if it is done by order of one who after- In re Watson, 18 as principal until he has obtained letters of administration. Q. B. D. 116. (c) The principal must be in existence.1 existence. 174. This rule is important in its bearing on the liabilities who is in of companies for contracts made by the promoters on their behalf before they are formed. In Kelner v. Baxter L. R. 2 C. P. the promoters of a company as yet unformed entered into a contract on its behalf and the company when duly incorporated ratified the contract. It became bankrupt and the defendant who had contracted as its agent was sued upon the contract. It was argued that the liability had passed, by ratification, to the company and no longer attached to the defendant, but the court held that this could not be. "Could the "company," said Willes, J., 'become liable by a mere ratification? Clearly not. Ratification can only be by a *person ascertained at the time of the act done, — by a per[*336] son in existence either actually or in contemplation of law, as in the case of the assignees of bankrupts, or administrators whose title for the protection of the estate vests by relation.' (d) The agent must contract for such things as the principal can, and lawfully may do. ibid. p. 184. Mann v. Tramways There can be no ratification of a void act. And so if an agent enter into a contract on behalf of a principal who Northern is incapable of making it, or if he enter into an illegal 9. contract, no ratification is possible. The transaction is void, in the one case from the incapacity of the principal, in the other from the illegality of the act.2 1 McArthur v. Times Printing Co., 48 Minn. 319; Bell's Gap R. R. |