make a

remain

he should not divest himself of his character of agent and Agent to become a principal party to the transaction. This may contract be said to arise from the fiduciary relation of agent and must principal: the agent is bound to do the best he can for his agent. principal; if he put himself in a position in which he has an interest in direct antagonism to this duty, it is difficult to suppose that the special knowledge, on the strength of which he was employed, is not exercised to the disadvantage of his employer. Thus if a solicitor employed to effect a sale of property purchase it, nominally for another, but really for himself, the purchase cannot be enforced.

But we may put the rule on another ground. If A employs X to make a bargain for him with some third party, the contract of employment is not fulfilled if X make the bargain for himself. The employer may sustain no loss, but he has not got what he bargained for.

[*341]

McPherson

v. Watt,

8 App. Ca.

254.

802.

Thus in Robinson v. Mollett the defendant gave an order L. R. 7 H. L. to the plaintiff, a broker in the tallow trade, for the purchase of a quantity of tallow. In accordance with the custom of the market the broker did not establish privity of contract between the defendant and a seller, but simply appropriated to him an amount of tallow, corresponding to the order, which he had purchased from a selling broker.

It was held that the defendant could not be required to accept goods on these terms, and that he was not bound by a custom of the market of which he was not aware and which altered the intrinsic character' of the contract. Robinson The broker was employed to make a contract on behalf of his principal, he had in fact made a sale to him, and the House of Lords held that such a transaction could not be supported.1

1 Cf. Terry v. Birmingham Nat. Bk., 99 Ala. 566; Skiff v. Stoddard, 63 Conn. 198.

v. Mollett,

L. R. 7 H. L.

802.

(e) Not to delegate authority.

The agent may not, as a rule, depute another person to do that which he has undertaken to do.

The reason of this rule, and its limitations, are thus 8 Ch. D. 310. stated by Thesiger, L.J., in De Bussche v. Alt.

New Zea

'As a general rule, no doubt, the maxim delegatus non potest delegare applies so as to prevent an agent from establishing the relationship of principal and agent between his own principal and a third person; but this maxim when analyzed merely imports that an agent cannot, without authority from his principal, devolve upon another obligations to the principal which he has himself undertaken personally to fulfil; and that inasmuch as confidence in the particular person employed is at the root of the contract of agency, such authority cannot be implied as an ordinary incident to the contract.'

The Lord Justice points out that there are occasions. when such an authority must needs be implied, occasions springing from the conduct of the parties, the usage of a trade, the nature of a business, or an unforeseen emergency, 'and that when such implied authority exists and is duly exercised, privity of contract arises between the principal and the substitute, and the latter becomes as responsible to the former for the due discharge of the duties which his employment casts on him, as if he had been appointed agent by the principal himself.'1

[*342]

*But where there is no such implied authority and the agent employs a sub-agent for his own convenience, no privity of contract arises between the principal and the sub-agent. On default of the agent the prin(C. A.) 874. cipal cannot intervene as an undisclosed principal to

land Co. v. Watson,

7 Q. B. D.

the contract between agent and sub-agent. Nor can

he treat the sub-agent as one employed by him, and follow and reclaim property which has passed into the subagent's hands.2

1 Harralson v. Stein, 50 Ala. 347; Grady v. American Cent. Ins. Co., 60 Mo. 116; Newell v. Smith, 49 Vt. 255.

2 Exchange Nat. Bk. v. Third Nat. Bk., 112 U. S. 276.

(2) Disclosed

principal.

thorized

II. RIGHTS AND LIABILITIES OF THE PARTIES WHERE AN AGENT CONTRACTS FOR A NAMED PRINCIPAL. Where an agent contracts, as agent, for a named princi- () Aupal, so that the other party to the contract looks through contract. the agent to a principal whose name is disclosed, it may fond be laid down, as a general rule, that the agent drops out principal of the transaction so soon as the contract is made.

(a) Agent

for named

drops out

when

Where the transaction takes this form only two matters contract arise for discussion: the nature and extent of the agent's made, authority; and the rights of the parties where an agent enters into contracts, either without authority or in excess of an authority given to him.

Much trouble has been wasted in distinguishing general from special agents as though they possessed two sorts of authority different in kind from one another. But there is no such difference.

If John Styles, having authority to act on behalf of whether Richard Roe and describing himself as agent for Richard authority is general Roe, makes a contract on Roe's behalf with John Doe, he or special. brings Roe and Doe into the relation of two contracting parties, and himself drops out. The authority may have been wide or narrow, general or special, but the difference is only one of degree.

[*343]

For instance, X sends A to offer £100 for M's horse Robin Hood, or to buy the horse for a price not exceeding £100, or for as low a price as he can, or to buy the best horse in *M's stable at the lowest price, or X sends A to London to get the best horse he can at the lowest price, or X agrees with A that A shall keep him supplied with horses of a certain sort and provide for their keep: all these cases differ from one another in nothing but the extent of the authority given, there is no difference in kind between any one of the cases and any other: in none of them does A incur any personal liability to M or any one with whom he contracts on behalf of X so long as he acts as agent, names his principal, and keeps within the limits of his authority.

It should be observed indeed it follows from what ante, p. 333. has been said, that X cannot by private communications with A limit the authority which he has allowed A to

Maddick v.
Marshall,

16 C. B.,

N. S. 393.

assume.

There are two cases in which a principal becomes liable for the acts of his agent-one where the agent acts within the limits of his authority, the other where he transgresses the actual limits but acts within the apparent limits, where those apparent limits have been sanctioned by the principal.'

Jones employed Bushell as manager of his business, and it was incidental to the business that bills should be drawn and accepted from time to time by the manager. Jones however forbade Bushell to draw and accept bills. Bushell accepted some bills, Jones was sued upon them and was held liable. If a man employs another as an agent in a character which involves a particular authority, he cannot by a secret reservation divest him of that Jones, L. R. authority.'1

Edmunds v.
Bushell and

1 Q. B. 97.

Auctioneer.

We may note here the sort of authority with which certain kinds of agents are invested in the ordinary course of their employment.

(a) An auctioneer is an agent to sell goods at a public auction. He is primarily an agent for the seller, but, upon the goods being knocked down, he becomes also the agent of the buyer; and he is so for the purpose of the signatures of both parties within the meaning of the 4th section of the Statute of Frauds and of the Sale of Goods Act. He has not merely an authority *to sell, but actual possession of the goods, and a lien upon them for his charges. He may sue the purchaser in his own name, and even where he contracts avowedly as agent, and for a known principal, he may introduce such terms

[*344]

1 Hatch v. Taylor, 10 N. H. 538; Howell v. Graff, 25 Neb. 130; Butler v. Maples, 9 Wall. (U. S.) 766.

into the contract made with the buyer as to render him- Woolfe v. self personally liable.1

Horne, 2 Q. B. D. 355.

(b) A factor by the rules of common law and of mer- Factor. cantile usage is an agent to whom goods are consigned for the purpose of sale, and he has possession of the goods, authority to sell them in his own name, and a general discretion as to their sale. He may sell on the usual terms of credit, may receive the price, and give a good discharge to the buyer.

He further has a lien upon the goods for the balance of account as between himself and his principal, and an insurable interest in them. Such is the authority of a factor at common law, an authority which the principal Bus. cannot restrict, as against third parties, by instructions privately given to his agent.

Pickering

v.

15 East, 38.

c. 44.

By the Factors Act 1889" the presumed authority of the 52 & 53 Vict. factor is extended. Persons who, in good faith, advance money on the security of goods or documents of title are thereby given assurance that the possession of the goods, or of the documents of title to them, carries with it an authority to pledge them.

And so long as the agent is left in possession of the goods revocation of authority by the principal does not prejudice the right of the buyer or pledgee if the latter has not notice of the revocation at the time of the sale or pledge.2

(c) A broker is an agent primarily to establish privity Broker. of contract between two parties. Where he is a broker for

goods, and so he has not

sale he has not possession of the
the authority thence arising which a factor enjoys. Nor

a This act consolidates the four previous acts of 1823, 1825, 1842, 1877.

1 Walker v. Herring, 21 Gratt. (Va.) 678; Thompson v. Kelly, 101 Mass. 291.

2 For Factors Acts see Stimson, Am. St. Law, §§ 4380-88.