dice of C.-See note to Sec. 2310, ante. Where one of ratifica tion. 2314. A ratification may be rescinded when made Rescission without such consent as is required in a contract, or with an imperfect knowledge of the material facts of the transaction ratified, but not otherwise. NOTE.-Seymour vs. Wyckoff, 10 N. Y., pp. 213224; Cobb vs. Dows, id., p. 341; Nixon vs. Palmer, 8 id., p. 398; Brass vs. Worth, 40 Barb., p. 648; Roach vs. Coe, 1 E. D. Smith, p. 175; M'Cracken vs. San Francisco, 16 Cal., pp. 591, 625; Freeman vs. Rosher, 13 Q. B., p. 780; Owings vs. Hull, 9 Peters, p. 607. "But not otherwise."-Story on Agency, Secs. 242, 250; see Commercial Bank vs. Warren, 15 N. Y., p. 577. 2315. An agent has such authority as the princi- Measure pal, actually or ostensibly, confers upon him. of agent's authority. authority, 2316. Actual authority is such as a principal inten- Actual tionally confers upon the agent, or intentionally, or by what. want of ordinary care, allows the agent to believe himself to possess. authority, 2317. Ostensible authority is such as a principal, Ostensible intentionally or by want of ordinary care, causes or what. allows a third person to believe the agent to possess. NOTE.-Farm. & Mech. B'k vs. Butch. & Drov. 2318. Every agent has actually such authority as is defined by this Title, unless specially deprived thereof by his principal, and has even then such Agent's authority as to having persons notice of restrictions upon it. authority ostensibly, except as to persons who have actual or constructive notice of the restriction upon his authority. NOTE.-Dingle vs. Hare, 7 C. B. (N. S.), p. 159. It was held that the party dealing with an attorney in fact, or an agent, is bound to know at his peril what the power of the agent is and to understand its legal effect. He must inquire into the extent of the powers of the agent.—Blum vs. Robertson, 24 Cal., p. 127; Mudgett vs. Day, 12 Cal., p. 139; see, also, Dunlap's Perry on Agency, p. 202. Says Mr. Perry (on Agency, p. 199): "There may be many cases in which the acts of an agent, though not in conformity to his authority, may yet be binding upon his employer, who is left in such cases to seek his remedy against his own agent." Whether an employer be bound or not by such acts as are not conformable to the commission given by him, depends principally upon the authority being general or special. "By a general agent is understood * * * a person whom a man puts in his place to transact all his business of a particular kind." An authority of this kind binds his employer by all acts within the scope of his employment, and that power cannot be limited by any private order or direction not known to the party dealing with the agent. See, also, Story on Agency, Sec. 127: "But a special agent who is employed about one specific act, or certain specific acts only, does not bind his employer unless his authority be strictly pursued. It is the business of the party dealing with him to examine his authority, and, therefore, if there be any qualification or restriction annexed to the commission it must be observed, otherwise the principal is discharged." If a person, for instance, keeping livery stables intrusts his servant with a horse to sell and direct him not to warrant, and the servant nevertheless did warrant him, the master would be held liable on the warranty, because the servant was acting within the general scope of his authority, and the public cannot be supposed cognizant of any private conversations between the master and the servant. But if the owner of a horse send a stranger to a fair with express directions not to warrant the horse, and the latter acts contrary to orders, the owner is not liable on the warranty, and the purchaser can have recourse only to the person who actually sold the horse. See Dunlap's Perry on Agency, pp. 199-211, and notes. necessary 1. To do everything necessary or proper and usual, Agent's in the ordinary course of business, for effecting the authority. purpose of his agency; and, 2. To make a representation respecting any matter of fact, not including the terms of his authority, but upon which his right to use his authority depends, and the truth of which cannot be determined by the use of reasonable diligence on the part of the person to whom the representation is made. NOTE.-Subd. 1.-Story on Agency, Secs. 85, 86, 96, 97; Dingle vs. Hare, 7 C. B. (N. S.), p. 159; see Horton vs. Morgan, 19 N. Y., p. 170; Waring vs. Mason, 18 Wend., p. 434; Graves vs. Legg, 2 H. & N., p. 210; Taylor vs. Stray, 2 C. B. (N. S.), p. 191; Pollock vs. Stables, 12 Q. B., p. 765; Bayliffe vs. Butterworth, 1 Exch., p. 428; Sutton vs. Tatham, 10 Ad. & El., p. 27; Bayley vs. Wilkins, 7 C. B., p. 886; see, however, Sweeting vs. Pearce, 7 C. B. (N. S.), p. 449; Partridge vs. Bank of England, 9 Q. B., p. 396. Subd. 2.-Griswold vs. Haven, 25 N. Y., p. 595; Farmers' and M. Bank vs. Butchers' and Drovers' Bank, 16 id., p. 125; Exchange Bank vs. Monteath, 26 id., p. 505; North River Bank vs. Aymar, 3 Hill, p. 263. Authority of agent in general terms to collect or secure a claim of the principal, is not authority for purchase of the property of the debtor to secure the claim of the principal. Such a course is not the usual means of securing a debt.-Taylor vs. Robinson, 14 Cal., p. 396; see Mudgett vs. Day, 12 Cal., p. 139. Authority to receive money by ostensible agents.-See Lumley vs. Corbett, 18 Cal., p. 494. Authority of agent to collect losses on a policy of insurance effected for his principal, but retained in his charge.-De Ro vs. Cordes, 4 Cal., p. 117; see, further, Washburn vs. Alden, 5 Cal., p. 463. Agent cannot bind principal beyond the power delegated, though he may perform such subordinate acts as are usually incident to or necessary to effectuate the object expressed.—Blum vs. Robertson, 24 Cal., p. 127. See, also, for what acts bind the principal and not the agent, Shaver vs. Ocean Mining Co., 21 Cal., p. 45; Herron vs. Hughes, 25 Cal., p. 555. Admissions or representations of agent bind principal when they constitute part of the res gesta. They must be made 10-vol. ii. Agent's power to disobey instruc tions. with reference to the subject matter, and at the time of the act done.-Garfield vs. K. F. Water Co., 14 Cal., p. 35; see, also, Neely vs. Naglee, 23 Cal., p. 152. 2320. An agent has power to disobey instructions in dealing with the subject of the agency, in cases where it is clearly for the interest of his principal that he should do so, and there is not time to communicate with the principal. NOTE.-"As a general rule it may be stated," says Mr. Livermore (Principal and Agent, p. 368), “that an agent cannot deviate from his instructions, even with a view to his employer's interest, but necessity will sometimes justify an agent in acting contrary to orders, particularly if induced by some cause not in contemplation of the principal at the time the orders were given; as, if the factor be limited to sell goods at a particular price, and the goods are of a perishable nature and not in a condition to be kept, and the agent has no time nor opportunity for consulting with his principal, in such a case I apprehend he may sell under the price limited, to prevent a total loss." Mr. Story, also (Agency, Secs. 85, 118, 141, 193-197, 208, 237), holds that an agent will be justified in disobeying instructions in cases where it clearly becomes necessary so to do, or is for the manifest interest of his principal. In Forrestier vs. Bordman, 1 Story's Rep., p. 51, Story, J., holds "it to be clear that if, by some sudden emergency or supervening necessity a literal compliance with the instructions would frustrate the objects of the owner and amount to a sacrifice of his interests, it is the duty of the supercargo (agent) under such circumstances to do the best he can, in the exercise of a sound discretion, to prevent a loss to the owner, and if he acts bona fide and exercises a reasonable discretion, his acts will bind the owner." And the rule as laid down in this section seems fully sustained in Judson vs. Sturgis, 4 Days' Conn. Reports, p. 556; Williams vs. Schackleford, 16 Ala., p. 318; Arthur vs. Schooner Cassius, 2 Story Rep., pp. 81-97; Gould vs. Rich, 7 Metc., p. 538; Story on Bailment, Sec. 455; Chapman vs. Morton, 11 Mees. & Wels., p. 535; Sands vs. Taylor, 5 Johns. Rep., p. 395; Dusar vs. Perit, 4 Binn. R., p. 361; 3 Chitty on Comm. and Manuf., Chap. 3, p. 218; Liotard vs. Graves, 3 Caines, p. 226; ̧ Lawler vs. Keaquick, 1 Johns. Cas., p. 174; see, also, particularly, Drummond vs. Wood, 2 Caines, p. 310. Of course, in such cases it must clearly appear that to be 2321. When an authority is given partly in gen- Authority eral and partly in specific terms, the general author- construed ity gives no higher powers than those specifically mentioned. by its specific, rather than by its general NOTE.-Story Agency, Sec. 71; Stair Inst., B. 1, T. terms. 12, Sec. 15. 2322. An authority expressed in general terms, Exceptions however broad, does not authorize an agent: 1. To act in his own name, unless it is the usual course of business to do so; 2. To define the scope of his agency; or, 3. To do any act which a trustee is forbidden to do by Article II, Chapter I, of the last Title. NOTE. Subd. 1.-Bank of State of N. Y. vs. Farm- Subd. 2.-Sup'rs of Rensselaer vs. Bates, 17 N. Y., Subd. 3.-Claflin vs. Farmers', etc., Bank, 25 N. Y., to general authority. included in 2323. An authority to sell personal property in- What cludes authority to warrant the title of the principal, authority and the quality and quantity of the property. NOTE.-Waring vs. Mason (Ct. of Errors), 18 Wend., p. 434; see Ferguson vs. Todd, 35 Barb., p. 427; Milburn vs. Belloni, 12 Abb. Pr., p. 451; Story Agency, Secs. 58, 59; Nelson vs. Cowing, 6 Hill, p. 336. See, to sell personal property. |