66 NOTE.-Mr. Story says 66 a person is sometimes called a general agent who has a general authority in regard to a particular object or thing;" and see Wilcox vs. Routh, 9 Smedes & Marsh., p. 476. "On the other hand, a person is sometimes said to be a special agent whose authority, although it extends to do acts generally in a particular business or employment, is yet qualified by instructions of a special nature."-Story on Agency, Secs. 18, 19. The true distinction is, that a general agency arises from a general employment, whereas a special agency is confined to and constituted by the authority delegated in the individual instance.— Per Lord Ellenborough, Whitehead vs. Tuckett, 15 East, p. 408. In the same case Nelson, C. J., says: 'A general agent is bound to exercise a sound discretion in the business in which he is engaged, and he possesses all the necessary implied powers within the scope of his authority for this purpose. An authority to settle accounts implies a power to allow credits; to sell a horse, to make a sale in the usual way. The agent stands in the place of his principal in respect to the particular business, and should conduct it as a prudent and discreet man should manage his own affairs. The doctrine in relation to a special agent is different. As a general rule, it may be said he is confined to his instructions; but the authority of the agent being limited to a particular business does not make it special. It may be as general in regard to that as if the range of it was unlimited."-Anderson vs. Cronly, 21 Wend., p. 279. "The authority of a general agent is not unlimited; it must necessarily be restrained to the transactions and concerns appurtenant to the business of the principal. Thus, one who was authorized to buy the raw materials and to sell the manufactures of a manufacturing company, could not, by implication, have authority to buy ships or real estate, or any other thing having no relation to the establishment. So, if one was authorized generally to sign promissory notes for the debts of the principal, it could not be reasonably intended that he might, by implication, have authority to give a note binding his principal to pay the debts of a stranger, or to pledge the credit of his principal as a surety for goods which were not bought for him, and which never came to his use.-Odiorne vs. Maxey, 13 Mass., p. 181; Dunlap's Paley on Agency, p. 3, and notes. Yet if such notes, executed by the agent in the name of the principal, have reached the hands of an innocent holder, it has been held that the principal was liable therefor, even though the notes may have been 2298. given for the private purposes of the agent.-Hellman An agency is either actual or ostensible. Agency, actual or ostensible. 2299. An agency is actual when the agent is really Actual employed by the principal. agency. agency. 2300. An agency is ostensible when the principal Ostensible intentionally, or by want of ordinary care, causes a third person to believe another to be his agent who is not really employed by him. ARTICLE II. AUTHORITY OF AGENTS. SECTION 2304. What authority may be conferred. 2305. Agent may perform acts required of principal by Code. 2306. Agent cannot have authority to defraud principal. 2307. Creation of agency. 2308. Consideration unnecessary. 2309. Form of authority. 2310. Ratification of agent's act. 2311. Ratification of part of a transaction. 2312. When ratification void. 2313. Ratification not to work injury to third persons. 2314. Rescission of ratification. 2315. Measure of agent's authority. 2316. Actual authority, what. 2317. Ostensible authority, what. 2318. Agent's authority as to persons having notice of re- 2319. Agent's necessary authority. 2320. Agent's power to disobey instructions. 2321. Authority to be construed by its specific, rather than by its general terms. What authority may be conferred. Agent may perform acts required of principal by Code. Agent cannot have authority to defraud principal. Creation of agency. tion SECTION 2322. Exceptions to general authority. 2323. What included in authority to sell personal property. 2304. An agent may be authorized to do any acts. which his principal might do, except those to which the latter is bound to give his personal attention. 2305. Every act which, according to this Code, may be done by or to any person, may be done by or to the agent of such person for that purpose, unless a contrary intention clearly appears. 2306. An agent can never have authority, either actual or ostensible, to do an act which is, and is known or suspected by the person with whom he deals, to be a fraud upon the principal. 2307. An agency may be created, and an authority may be conferred, by a precedent authorization or a subsequent ratification. NOTE.-If a person ratifies the act of one who has assumed to be his agent, the effect of the transaction is the same as if he had actually given him direct authority in the premises to the extent to which such act reaches. That a subsequent ratification is equally effectual as an original authority is well settled.Newton vs. Bronson, 13 N. Y., p. 594; Moss vs. Rossie Mining Co., 5 Hill, p. 137; Weed vs. Carpenter, 4 Wend., p. 219; Peterson vs. Mayor of New York, 17 N. Y., p. 453; Hoyt vs. Thompson, 19 id., p. 218; see note to Sec. 2310, post. Considera- 2308. A consideration is not necessary to make an authority, whether precedent or subsequent, binding upon the principal. unnecessary. Form of authority. NOTE.-Commercial Bank vs. Warren, 15 N. Y., p. 577. 2309. An oral authorization is sufficient for any purpose, except that an authority to enter into a con tract required by law to be in writing can only be given by an instrument in writing. NOTE. This applies also to executory contracts for the sale or purchase of land, etc.-See note to Secs. 2295 and 1741, ante. tion of agent's act. 2310. A ratification can be made only in the man- Ratificaner that would have been necessary to confer an original authority for the act ratified, or where an oral authorization would suffice, by accepting or retaining the benefit of the act, with notice thereof. NOTE. "A ratification made only in the manner which would have been necessary to confer original authority."-Story Ag., Sec. 242; Despatch Line vs. Bellamy, 12 N. H., p. 232; see Newton vs. Bronson, 13 N. Y., p. 595; Blood vs. Goodrich, 9 Wend., p. 68; 12 id., p. 525; Wells vs. Evans, 20 id., p. 251. "Where an oral authorization would suffice, by accepting or retaining the benefit of the act."-Bennett vs. Judson, 21 N. Y., p. 238; Clarke vs. Van Reimsdyck, 9 Cranch, p. 153; Lowenstein vs. McIntosh, 37 Barb., p. 251; Decker vs. Judson, 16 N. Y., p. 446. "With notice thereof."-Seymour vs. Wyckoff, 10 N. Y., p. 213; Cobb vs. Dows, id., p. 341. A ratification is equivalent to a previous authority. It operates upon the act ratified in the same manner as though the authority had been originally given; and where the authority can originally be conferred only in a particular form or mode the ratification must follow the same form or mode. A ratification can only be made when the principal possesses at the time the power to do the act ratified. He must be able at the time to make the contract to which, by its ratification, he gives validity. The ratification is the first proceeding by which he becomes a party to the transaction, and he cannot acquire or confer the rights resulting from that transaction unless in a position to enter directly upon a similar transaction himself.-McCracken vs. San Francisco, 16 Cal., p. 591. A principal who ratifies must know the character of the acts to be ratified, otherwise the ratification is void. A general ratification of all the acts of an agent does not include acts not within the scope of the power.-Billings vs. Morrow, 7 Cal., p. 171; see, also, Davidson vs. Dallas, 8 Cal., p. 227; Marziou vs. Pioche, 8 Cal., p. 522. The acts of an agent without authority, subsequently ratified by the principal, bind the principal Ratification of part of a transaction When ratification void. Ratification not to work injury to third persons. back to the inception of the transaction. But such ratification cannot defeat the rights of third persons acquired between the acts of the agent and the ratification by the principal, as attachments on property of debtor after sale by or to an agent.-Taylor vs. Robinson, 14 Cal., p. 396. For the ratification by principal of acts of agent generally see Dupont vs. Wertheman, 10 Cal., p. 354; Ellison vs. Jackson Water Co., 12 Cal., p. 542; Borrel vs. Rollins, 30 Cal., p. 408; Racouillat vs. Sansevain, 32 Cal., p. 376; and for what amounts to ratification see Grogan vs. San Francisco, 18 Cal., p. 590; Wright vs. Solomon, 19 Cal., p. 64; see Minturn vs. Burr, 16 Cal., p. 107. 2311. Ratification of part of an indivisible transaction is a ratification of the whole. NOTE.-Decker vs. Judson, 16 N. Y., p. 446; Cobb vs. Dows, 10 N. Y., p. 335; Farmers' Loan Co. vs. Walworth, 1 N. Y., p. 433; Bell vs. Shibley, 33 Barb., p. 610; Ferguson vs. Hamilton, 35 id., p. 427; Story Ag., Sec. 250. See Bennett vs. Judson, 21 N. Y., p. 238; Condit vs. Baldwin, id., p. 231. 2312. A ratification is not valid unless, at the time of ratifying the act done, the principal has power to confer authority for such an act. NOTE.-McCracken vs. San Francisco, 16 Cal., p. 591; Zottman vs. San Francisco, 20 Cal., p. 102; People vs. Swift, 31 Cal., p. 28; see note to Sec. 2310, ante. 2313. No unauthorized act can be made valid, retroactively, to the prejudice of third persons, without their consent. NOTE. This is, perhaps, a broader rule than heretofore existed. But great difficulty has been felt in attempting to reconcile the cases.--See Story Ag., Secs. 246, 247; Bliss vs. Cottle, 32 Barb., p. 322; Bird vs. Brown, 4 Exch., p. 786; Wilson vs. Tumman, 6 M. & G., p. 236; Palmer vs. Stephens, 1 Denio, p. 481; Rossiter vs. Rossiter, 8 Wend., p. 499. In Buron vs. Denman, 2 Exch., p. 167, the defendant had committed a trespass, which the English Government expressly ratified. This was held to relieve the defendant from responsibility. In Lucas vs. Wilkinson, 1 H. & N., p. 420, it was held that an act expressly done on behalf of A could not be ratified and adopted by B, to the preju |
