CHAFI'EIl V.

PEINCIPAL AND AGENT.

Sect. 1. Definition and character of agent.

2. Rights of principal against agent.

3. Rights of agent against principal.

4. Rights of third parties against principal,

5. Rights of principal against third parties.

6. Rights of agent against third parties.

7. Rights of third parties against agent.

i

Section I, — Definition and character of Agent.

As a comparatively small part of an extensive business can be car-

ried on by the unassisted exertions of the trader, whether sole or

the member of a partnership or corporation, the agents by whom

he is obliged to transact the remainder constitute an important,

though subordinate, class of mercantile persons; this book will

therefore conclude with a sketch of the law relating to them.

An agent is a person authorized to do some act or acts, in the

name of another, who is called his principal. Whatever a man

has power to do in his own right, he may (except in one or two

Very peculiar cases) (a) appoint an agent to do for him, I say in

his own right, for one agent cannot nominate another to perform the

(a) An agent cannot sign an acknowledgment for the purpose of taking a case

out of the Statute of Limitations ; Hyde v. Johnson, 2 Bingh. N, C. 777 ; nor could

a devise be executed by an agent, because the Statute of Frauds expressly required

the signature of the testator ; but now see 7 W. 4, & 1 Vict. 4, c. 26, s. 9.

148 Mercantile persons.

Definition and character of Agent.

subject of his agency, vicarius non hahet vicarium. (b)^ It is true,

that when, from the nature of his trust, it cannot be expected that

he should accomplish it all by his own personal exertions, he will

be allowed to employ others to assist him ; and therefore, where a

factor lodged goods in the warehouse of the South Sea Company,

the Court held that he had a right to do so, for that a bailiff aa

merchandkandum is not obliged to keep the goods always about

him. (c) So where the guardians of the poor of Witney Union

employed Kempthorne to draw a specification for a workhouse, and

Kempthorne employed Moon to make calculations, the Court of

Common Pleas decided that Moon, though he had no communi-

cation with the guardians, might sue them for a compensation,

having first proved that Kempthorne, in employing him, had acted

In accordance with the custom of his trade of architecture ; " for,"

said the L. C. J., " in contractis tacite insunt quce sunt moris et con-

suetudinisr {d) In these cases, however, he does not so much dele-

gate his agency, as exercise a power impliedly contained in his

appointment ; in doing which, he must act with precaution, and not

exceed what is proper under the circumstances of the case, and

в– warranted by the usage of trade.

(6) Roll. Abr. 330; 9 Co. 11, b. Coles v. Trecothick, 9 Ves. 236, 251, 252. Solly

V. Rathbone, 2 M. & S. 289. Cockran v. Irlam, 2 M. <fe S. 301. Schraaling v. Tom-

linson, 6 Taunt. 147. Catlin v. Bell, 4 Camp. 184. Doe d. Rhodes v. Robinson, 3

Bingh. K C. 678. Clark v. Dignam, 3 M. <fe "W. 318. Ess v. Truscott, 2 M. & W.

385. Maryatt V. Broderick, 2 m. & "w. 369. Miles V. Bough, 3 q. B. 845.

(c) Goswell V. Dunkley, Str. 681. See Bromley v. Coxwell, 1 B. & P. 438.

((f) Moon V. Guardians of "Witney Union, 3 Bingh. K C. 817.

* This maxim is sometimes thus expressed : — delegata potestas non potest delegan

Agency is a personal trust and confidence, which cannot be delegated unless thb

principal has conferred such a power of substitution in express terms, or by impli

cation fairly to be deduced from the nature of the employment. Thus, a factor can-

not transfer a consignment made to him, for sale, to another factor, without the

authority of his principal. So, it has been held that where powers requiring the

exercise of discretion have been confided to a corporation, they cannot be delegated

to the directors, but must be exercised solely by the corporation, at a legal meeting

held for that purpose. Ex parte Henry "Winsor, 3 Story C. C. R. 411. These general

principles are recognized and enforced in the later case of Warner v. Martin, 11 How

e. C. R. 224.

rPJXCIPAL AXD age:s't. 149

Definition and character of Agent.

Some persons may be agents for others who could not act in

their own capacity. An infant, or feme covert^ may become an

agent, the latter even for her own husband, (e) But it has been

decided that one of two contracting parties cannot be agent for the

other, even with that other's consent, so as to bind him by a writ-