employed. The acts of a general agent, while acting within the scope of his authority, will bind his principal, whether or not they are in accordance with his private instructions. If he is apparently clothed with authority, the principal is bound.

One Chappell was appointed general agent to manage Gasharie's store, buy and sell goods, issue notes, etc. He purchased goods on Gasharie's credit, which was contrary to orders. Held, Chappell was a general agent and as such his acts were binding on Gasharie, even though contrary to his private instructions. - Manning v. Gasharie, 27 Ind. 399.

Special Agent. A special agent is one who is appointed for a special purpose, or to transact a particular piece of business. He is given but limited authority. His acts do not bind his principal beyond the scope of the particular authority given him.

In the case of a general agent there has been general power delegated, the authority is necessarily broad, and a person dealing with such agent may reasonably infer that he has the authority usually conferred upon such agents under like circumstances; while in the appointment of a special agent, the object is to accomplish a special purpose or to carry out a particular piece of business, and one would naturally infer the authority was limited.

In the case of a railroad company, a ticket agent would be considered a special agent to sell tickets, and his duties and authority would be confined to the sale of tickets, while the general superintendent of the road would be considered a general agent, as he would have general duties to perform and general authority over all departments of the road.

Public Agents. — All public officials and all employees of every department of our government are public agents. In one particular there is a difference between public agents and other agents. A public agent who exceeds his authority in the making of contracts is not liable, for the reason that every one is supposed to know what authority a public agent has.

If the Chief of Police in a certain city should contract with a local painter to paint the building used as police headquarters and the painter should perform his part of the contract, he could not collect from the city, as he had not been officially authorized to paint the building, and he could not hold the Chief of Police, as he is not liable in this instance for having exceeded his authority.

Del Credere Agents. -Sometimes an agent who is employed to sell goods guarantees his principal against loss from any of the customers to whom he sells. In such case the agent is termed a "del credere agent." In the United States it is the rule that the agent is held primarily and not as a guarantor, so his promise need not be in writing. Sales made in this way amount practically to sales by the principal to the agent.

Persons Known as Agents. —A person appointed as agent may be known as agent, factor, commission merchant, broker, attorney, or special representative to some person. Sometimes other employees may be authorized to act as agent; for instance, chauffeurs, factory workers, and domestic servants may, at times, act in the capacity of agent. There is this distinction between servant or employee and agent. The servant or employee is considered a mere mechanical worker, whereas the agent is a business representative, and it is his duty to represent his employer in business transactions. There are many cases, however, where the employee is also an agent; for example, the chauffeur may be directed to buy supplies for his employer, or the domestic servant may be authorized to purchase provisions for the household, in which cases they are acting as agents.

QUESTIONS

I. What is an agency? How is an agency created?

2. Why is the subject of agency important?

3. What are the parties to an agency called?

4. What does the word "agent" mean?

5. Why are agents necessary?

6. Who may act as principal? Who may act as agent?

7. Has an infant a legal right to act as agent?

8. What are the different classes of agents? Define each.

9. What limit is there on the authority of a general agent?

10. What limit is there on the authority of a special agent?

II. What is the principal difference between public agents and other

agents?

12. Who is a del credere agent?

13. May servants and other employees act as agents?

14. Give some examples of agents.

15. What is the distinction between employees and agents? Give examples.

2. HOW CREATED

Agreement. The relation of principal and agent may be created in several different ways. The ordinary way is by agreement, as where one man employs or appoints another to represent him in a certain transaction or in a general way. This is really an agency by contract, except in case of a gratuitous agent (one who is not to receive any pay for his services), and all the rules governing contracts govern also the relations of the principal and agent as between themselves.

The reason why a gratuitous agent is not an agent by contract is that, there being no consideration, the agreement cannot be enforced as a contract, as we have learned in the chapter on contracts.

Form of Agreement. An agent by agreement may be appointed orally except in the following cases:

1. When by the terms of the agency the service is not to be performed within one year; then, by the Statute of Frauds, the. agreement must be in writing.

Southgate made an oral agreement in February with Hinckley that Hinckley would carry on Southgate's gristmill for one year from April 1, next. Hinckley offered to perform, but Southgate would not allow him. It was held by the court that the case was clearly within the Statute of Frauds, since the work was not to be performed within one year; consequently the parol agreement could not be enforced.

-Hinckley v. Southgate, 11 Vt. 428.

2. When the contract between the principal and the third party, to be executed by the agent, is required to be under seal; then the authority of the agent to execute the instrument must itself be under seal.

In a suit on a bond signed by one Williams as agent for one Pierce, it was proved that Williams' authority was oral. It was held that authority to execute a sealed instrument must itself be under seal and Pierce was not liable on the instrument. Overman v. Atkinson, 102 Ga. 750.

The following are exceptions to the rule that an agent to make a contract under seal must receive his appointment under seal:

1. When the agent signs the contract in the presence of his principal.

2. When the instrument signed by the agent, although under seal, is not required to have a seal.

3. When the agent signs as a member of his firm.

4. When the agent signs for a corporation.

Agent's Appointments under Seal. The formal way of appointing an agent is by a written instrument under seal known as the power of attorney. Certain instruments such as deeds. and mortgages are required to be under seal and are usually witnessed and then acknowledged before a notary public (an official appointed to take acknowledgments, administer oaths, etc.), and for this reason the power of attorney by which the agent receives his authority to make a deed and mortgage or any other instrument under seal on behalf of his principal must be executed in the same formal way.

A contract for the sale of land does not necessarily have to be under seal, although it must be in writing under the Statute of Frauds. An agent could contract for the purchase or sale of real property, but he could not execute a sealed instrument such as deeds or mortgages without having a power of attorney. Ratification. The second way in which the relation of principal and agent may be created is by ratification.

The assent of the principal to the act of the agent may be given either before or after the agent's act. If given before, then it is an agency by agreement and has already been explained. If given after the act has been performed by the agent, it is a ratification of this act and gives the same effect to it as though there had been a previous appointment. This may be true in a case where the agent had no previous authority whatever, or where the agent had some prior authority but exceeded this authority in the particular act. The ratification operates as an extension of the authority to this act.

The principal may ratify an agent's acts:

1. By expressed words.

2. By acquiescing in them and allowing the agent to continue.

3. By accepting the benefits resulting therefrom.

It was held that where a person was clothed with some authority as agent, the ratification by his principal of his unauthorized acts relates

back and makes such acts of the agent the acts of the principal from the beginning, the same as though they had been duly authorized at the start. Merritt v. Bissell, 84 Hun (N. Y.) 194.

A person without authority purchased a bill of goods for persons about to form a copartnership, in their name and on their credit as partners They received the goods and sold them. One of the partners afterwards repudiated the purchase, claiming that the other partner was to buy the goods and that the agent had no authority to buy for him, and he so advised the sellers. Held, this was not sufficient. He should have restored the goods, but as they kept the goods they were liable as partners; they had ratified the act by retaining the benefit. Pike v. Douglass, 28 Ark. 59.

The ratification to bind the principal must be made with a knowledge of all the material facts; if made under a misunderstanding, or through a misrepresentation, the principal will not be bound. The principal must repudiate the agent's unauthorized act within a reasonable time after he learns of it, or he will be presumed to have ratified it.

But if the principal ratifies the act it must be as a whole, for he cannot accept the benefits of a part and reject the remainder.

An axiom of the law is, "A man cannot take the benefits of a contract without bearing its burdens."

A subscription agent, canvassing for a history to cost $10, had a book for signatures, and on this it was printed that no terms except those printed thereon should be binding. A justice of the peace consented to sign on condition that his office fees from that time to the time of delivery of the book should be taken in payment. This was agreed, and he was given a written memorandum by the agent to that effect. Held, if the company ratified the contract it must be upon the terms agreed upon. As the agent went beyond his authority they could repudiate the contract and refuse to deliver the book, but they could not repudiate part and still hold the subscriber. Eberts v. Selover, 44 Mich. 519.

Necessity. The third way in which the relation between principal and agent may be created is by necessity.

This is where the relations or positions of the parties are such that the authority of the principal is presumed. The leading illustration of this is the case of husband and wife. The wife can contract for the necessities of the household and bind the husband for their payment.

It was held that a wife becomes her husband's agent by necessity to procure board and lodging for herself and minor children on his credit when he has driven her away without means of subsistence.

- East v. King, 77 Miss. 738.