What included in authority property. Authority of general agent to receive price of property. Authority of special agent to receive price. however, Brady vs. Todd, 9 C. B. (N. S.), p. 592, which holds these powers to be confined to a general agent. 2324. An authority to sell and convey real property includes authority to give the usual covenants of warranty. NOTE.-Leroy vs. Beard, 8 How. U. S., p. 451. 2325. A general agent to sell, who is intrusted by the principal with the possession of the thing sold, has authority to receive the price. 2326. NOTE. An agent for the collection of a note is confined to taking money, and has no power (unless special authority is given) to take goods in payment.-Mudgett vs. Day, 12 Cal., p. 139. A special agent to sell has authority to receive the price on delivery of the thing sold, but not afterwards. NOTE.-Peck vs. Harriott, 6 Serg. & R., p. 149. ARTICLE III. MUTUAL OBLIGATIONS OF PRINCIPALS AND THIRD PERSONS. SECTION 2330. Principal, how affected by acts of agent within the scope of his authority. 2331. Principal, when bound by incomplete execution of authority. 2332. Notice to agent, when notice to principal. 2333. Obligation of principal when agent exceeds his authority. 2334. For acts done under a merely ostensible authority. 2336. Rights of person who deals with agent without knowl edge of agency. 2337. Instrument intended to bind principal does bind him. 2338. Principal's responsibility for agent's negligence or omission. 2339. Principal's responsibility for wrongs willfully commit ted by the agent. 2330. An agent represents his principal for all purposes within the scope of his actual or ostensible authority, and all the rights and liabilities which how 77 would accrue to the agent from transactions within Principal, such limit, if they had been entered into on his own affected by account, accrue to the principal. NOTE." Within the scope of his actual or ostensible acts of of his when 2331. A principal is bound by an incomplete exe- Principal, cution of an authority, when it is consistent with the bound by whole purpose and scope thereof, but not otherwise. NOTE.-Story on Agency, Secs. 171, 180. incomplete execution of authority. agent, Notice to notice to 2332. As against a principal, both principal and agent are deemed to have notice of whatever either when has notice of, and ought, in good faith and the exercise principal. of ordinary care and diligence, to communicate to the other. NOTE." Both principal" (Fulton Bank vs. Sharon Obligation of principal exceeds his 2333. When an agent exceeds his authority, his when agent principal is bound by his authorized acts so far only as authority. they can be plainly separated from those which are unauthorized. For acts done under a merely ostensible authority. When exclusive credit is given to agent. Rights of person who deals with agent without knowledge NOTE.-When the agent, on behalf of his principal, performs an unauthorized act, yet if the principal has put the agent in a position to mislead innocent parties, he is responsible to them.-Davidson vs. Dallas, 8 Cal., p. 227. 2334. A principal is bound by acts of his agent, under a merely ostensible authority, to those persons only who have in good faith, and without ordinary negligence, incurred a liability or parted with value, upon the faith thereof. NOTE.-See Mechanics' Bank vs. New Haven R. R., 13 N. Y., p. 611; Farmers' and Mechanics' Bank vs. Butchers' and Drovers' Bank, 16 N. Y., p. 127. See note to preceding section. 2335. If exclusive credit is given to an agent by the person dealing with him, his principal is exonerated by payment or other satisfaction made by him to his agent in good faith, before receiving notice of the creditor's election to hold him responsible. NOTE.-Story Agency, Sec. 291; Fish vs. Wood, 4 E. D. Smith, p. 327; see Heald vs. Kenworthy, 10 Exch., p. 739; Hyde vs. Paige, 9 Barb., p. 150; Cheever vs. Smith, 15 Johns., p. 276; French vs. Price, 24 Pick., p. 13; Fitler vs. Commonwealth, 31 Penn. St., p. 406. If such credit is not given to the agent, mere delay in calling upon the principal does not exonerate him.-Macfarlane vs. Giannacopulo, 3 H. & N., p. 860. 2336. One who deals with an agent without knowing or having reason to believe that the agent acts as such in the transaction, may set off against any claim. of agency of the principal arising out of the same, all claims which he might have set off against the agent before notice of the agency. NOTE.-Hogan vs. Shorb, 24 Wend., p. 458; George vs. Clagett, 7 T. R., p. 359; see Taintor vs. Prender gast, 3 Hill, p. 72; Ferrand vs. Bischoffshelm, 4 C. B. intended 2337. An instrument within the scope of his Instrument authority by which an agent intends to bind his prin- to bind cipal, does bind him if such intent is plainly inferable does bind from the instrument itself. NOTE.-See Hunsaker vs. Sturgis, 29 Cal., p. 142. This subject belongs, probably, to the general subject of interpretation of contracts. It has been held that instruments, when executed by agents as such, are binding upon the principal, and not upon the agent. But the intention to bind the principal must appear, and such intention is presumed when.-McDonald vs. Bear R. Co., 13 Cal., p. 220; Haskell vs. Cornish, 13 Cal., p. 45; Sayre vs. Nichols, 7 Cal., p. 535; Shaver vs. Ocean Mining Co., 21 Cal., p. 45. principal him. responsi bility for agent's or omission. 2338. Unless required by or under the authority Principal's of law to employ that particular agent, a principal is responsible to third persons for the negligence of his negligence agent in the transaction of the business of the agency, including wrongful acts committed by such agent in and as a part of the transaction of such business, and for his willful omission to fulfill the obligations of the principal. NOTE. "Unless required by law to employ that particular agent" (Story Agency, Sec. 456,) “a principal is responsible to third persons for the negligence of his agent in transacting the business of the agency" (Drew vs. Sixth Av. R. R. Co., 26 N. Y., p. 49; Sadler vs. Henlock, 4 E. & B., p. 570; Althorf vs. Wolfe, 22 N. Y., p. 355; Blake vs. Ferris, 5 N. Y., p. 48), “including wrongful acts of such agent in transacting such business (Chase vs. N. Y. Central R. R. Co., 26 N. Y., p. 523; Sanford vs. Eighth Av. R. R. Co., 23 N. Y., p. 343; see Griswold vs. Haven, 25 N. Y., p. 595), “and willful omission to fulfill the obligations of the principal."-Weed vs. Panama R. R., 17 N. Y., p. 362; Story Agency, Sec. 453. The right of selection is the basis of the responsibility of a principal for the acts of his agent. No one can be held responsible as principal who has not the right to choose the agent from whose act the injury flows.-Boswell vs. Laird, 8 Cal., p. 469. Principal's responsibility for wrongs willfully committed by the agent. 2339. A principal is responsible for no other wrongs committed by his agent than those mentioned in the last section, unless he has authorized or ratified them, even though they are committed while the agent is engaged in his service. NOTE.-A principal is not responsible if he has not authorized or ratified such other wrongs.-Steele vs. Smith, 3 E. D. Smith, p. 321; Eastern C. R. R. vs. Brown, Exch., p. 314; Chilton vs. Croydon R. R., 16 M. & W., p. 212; Maund vs. Monmouth Canal Co., 4 M. & G., p. 452. Even though committed while the agent is in his service. Story Ag., Sec. 456; Church vs. Mansfield, 20 Conn., p. 284; Condit vs. Baldwin, 21 N. Y., p. 219; Richmond Turnpike Co. vs. Vanderbilt, 2 N. Y., p. 479; 1 Hill, p. 480; Fellows vs. Commissioners of Oneida, 36 Barb., p. 655. ARTICLE IV. Warranty of OBLIGATIONS OF AGENTS TO THIRD PERSONS. SECTION 2342. Warranty of authority. 2342. 2343. Agent's responsibility to third persons. 2344. Obligation of agent to surrender property to third person. 2345. Agent not having capacity to contract. One who assumes to act as an agent thereby authority. warrants, to all who deal with him in that capacity, that he has the authority which he assumes. Agent's responsibility to third persons. NOTE.-See Sec. 3318, post, and note thereto. Also, White vs. Madison, 26 N. Y., p. 117; Collen vs. Wright, 8 E. & B., p. 647; 7 id., p. 301; see Walker vs. Bank of N. Y., 9 id., p. 582; Jenkins vs. Hutchinson, 13 Q. B., p. 744; Jefts vs. York, 10 Cush., p. 395; Polhill vs. Walter, 3 B. & Ad., p. 114. The exception established in Smout vs. Ilbery (10 M. & W., p. 1), is not necessary to be retained under the change which is made as to the termination of agency. 2343. One who assumes to act as an agent is responsible to third persons as a principal for his acts in the course of his agency, in any of the following cases, and in no others: |
