veyance, bond or other instrument under seal, unless his There is no doubt about the general rule that a power to Note: A deed must be executed by the owner of the land or by his agent or attorney appointed under seal. § 131. Appointment of Subagents Unless expressly or impliedly authorized, an agent is not empowered to appoint a subagent. When an agent is appointed, he is appointed because the principal places special trust and confidence in him. It would not be right for an agent to have power to delegate his authority to someone else, whom the principal might not care to have represent him. This is a maxim of the law-that delegated authority cannot be passed on to someone else unless the agent has been expressly authorized to do so, or unless it is customary in the particular line of business. A distinction is to be taken in this matter between acts requiring discretion and acts that simply involve some mechanical performance. An agent authorized to perform some important work could employ others to help him in the mechanical details. If it were customary, he could employ an assistant superintendent and supervisors, but he could not delegate the active supervision to someone else. Notes: I. An agent cannot appoint a subagent. 2. If he attempts to do so, (1) his appointee will have no power, and (2) the agent will be personally liable for the subagent's wages. Clark & Skyles on Agency. Long v. Hartwell, 34 N. J. L. 122. §132. Servants and Employees An employee or servant may also be an agent if authorized to do business with third parties. The distinction between an employee or servant and an agent is that the employee or servant is employed to do certain things and has no relation with third parties, while an agent is employed to represent the principal in dealings with third parties. It happens in many cases that an employee is also an agent, but his functions as an agent are distinct from his functions as an employee. A servant employed in domestic activities becomes an agent when he or she is authorized to buy supplies, or to do anything else that involves dealing with third parties. (See § 136.) If a delivery man has been in the habit of making collections, it would be safe to pay him. If a package has been sent C. O. D. the bearer is thereby authorized to receive the amount. If an employer acquiesces in his employees' acting as his , agents, he will be estopped from denying their agency. (See § 128.) Notes: I. It is not safe to deal with a servant or an employee unless he or she is authorized to do business with third parties. 2. It is not safe to pay money to truck drivers, delivery men, and errand boys, unless it is known that they are authorized to make collections. § 133. Void Contracts of Agency Contracts of agency for an unlawful purpose, as is the case with other contracts (see § 39), are illegal and cannot be enforced. For example, a contract to conduct a gambling establishment would be absolutely void. The principal could not com pel the agent to carry out the contract, and the agent could not collect any compensation for the unlawful service. A contract to procure an agent to commit a positive crime, to bribe legislators, to forge a will, or to commit a burglary, is void absolutely and entirely. Any contract opposed to public policy is void. Certain things are said to be against public policy. The following are examples: to employ a lobbyist to influence legislation; to contract with a lawyer to organize a trust in restraint of trade; to employ a broker to negotiate a marriage; or to bribe a purchasing agent to buy from you. In any contract to do an unlawful act, both agent and principal are liable to damages and to criminal prosecution. If an agent or an employee were engaged to smuggle silks, both the subordinate and the principal are liable to prosecution and whatever penalties are imposed. In legitimate business the agent acting within his authority makes his principal liable but does not make himself responsible. In any illegal business, the responsibility attaches to principal and agent alike. (See § 146.) Notes: 1. Any contract for an illegal or immoral purpose is I. 2. 3. void. An agent employed to act illegally cannot collect any compensation. In a contract for an illegal or immoral act, both principal and agent will be liable to damages and to criminal prosecution. REVIEW QUESTIONS 2. What is necessary to appoint an agent to convey land? 1. How may an agent be appointed? 3. What may an agent do in the absence of formal specification? 4. To what extent is a wife the implied agent of her husband? 5. How may a contract be ratified? 6. Define "power of attorney" and "attorney in fact." 7. Can an agent appoint a subagent? Explain answer.. 8. Distinguish between a servant and an agent. 9. What contracts of agency are void? 10. Can an agent who collects a gambling debt recover an agreed commission? II. What is agency by estoppel? 12. A's wife was ill and the family physician said that he would like to consult with a specialist. A said that he was willing. The family physician called in the specialist, whose diagnosis afterwards proved to be erroneous. Later the specialist brought suit for his services, to which A made the defense that he did not employ the specialist, and that the diagnosis was erroneous. Can the specialist recover? Give reason for answer. 13. What general facts are necessary to validate an unauthorized assignment by an agent? 14. Does the relation of agency always rest on consent? 15. In your state is there any provision of the law with which one must comply in order to conduct a general mercantile or manufacturing business in a fixed location as agent for another? CHAPTER XXIII THE PRINCIPAL § 134. Principal's Duty to Agent The principal's duty to his agent is to pay him his com The relation of the principal pensation and proper expenses. to the agent is one of contract. services and the principal promises to pay him a salary, a commission, or a fixed sum. If no amount of compensation has been fixed, the agent will be entitled to whatever his services are reasonably worth. Unless provided otherwise, the principal is bound to reimburse him for whatever expenses he has properly incurred. The contract should be a written one to avoid misunderstandings and to supply evidence of what the agreement really was. The usual rules which govern employment prevail in this relation. If the principal terminates the agency before the end of the period of employment, he must compensate the agent for the unexpired term less any amount the agent can secure from some other employment. If the agent were to be paid a commission or a gross sum and the principal were to terminate the agency unreasonably, the principal would be liable to pay damages for the breach of his contract. If the agent had completed his undertaking, even though the principal did not take advantage of what the agent had done, the agent nevertheless would be entitled to full payment for his services. In a Missouri case, one Gelatt, a real estate agent, was employed by the owner of a business block to find a purchaser for the property. He found a buyer, but the owner advanced |