1. When, with his consent, credit is given to him Same. personally in a transaction; 2. When he enters into a written contract in the name of his principal, without believing, in good faith, that he has authority to do so; or, 3. When his acts are wrongful in their nature. NOTE.-One who assumes to act as agent is responsible as principal in the following cases, and none others: See Story's Agency, Secs. 261, 310; see Kirkpatrick vs. Stainer, 22 Wend., p. 244; Green vs. Kopke, 18 C. B., p. 549; Smout vs. Ilbery, 10 M. & W., p. 1. Subd. 1.-Sto. Ag., Sec. 288. This provision includes the cases in which an agent does not disclose the fact of his agency (Waring vs. Mason, 18 Wend., p. 434; Sto. Ag., Sec. 266); those in which the fact of the agency is known, but the principal is unknown (Mills vs. Hunt, 20 Wend., p. 431; Sto. Ag., Sec. 267); or where the agent makes himself a party to the contract.-Higgins vs. Senior, 8 M. & W., p. 834; Tanner vs. Christian, 4 E. & B., p. 591; Lennard vs. Robin5 E. & B., p. 125; Pentz vs. Stanton, 10 Wend., p. 271. In all cases the question is, "to whom was the credit given?"-Green vs. Kopke, 18 C. B., p. 549; Mahony vs. Kekule, 14 id., p. 390; see Kirkpatrick vs. Stainer, 22 Wend., p. 244. This is true even concerning public agents who contract in their own names.— Sto. Ag., Sec. 302. son, Subd. 2.-This rule seems to be in some, but not all the States, established.-Feeter vs. Heath (Ct. of Errors), 11 Wend., p. 477; Meech vs. Smith, 7 Wend., p. 315; Dusenbery vs. Ellis, 3 Johns. Cas., p. 70; Rossiter vs. Rossiter, 8 Wend., p. 494; see Palmer vs. Stephens, 1 Denio, p. 471; though it is confined to the limits here stated (Walker vs. Bank of N. Y., 9 N. Y., p. 582); and has been doubted altogether.-White vs. Madison, 26 N. Y., p. 117. It is not law in England (Collen vs. Wright, 7 E. & B., p. 301; Jenkins vs. Hutchinson, 13 Q. B., p. 744; Lewis vs. Nicholson, 18 id., p. 503), in Massachusetts (Abbey vs. Chase, 6 Cush., p. 56; Jefts vs. York, 4 id., p. 371; Ballou vs. Talbot, 16 Mass., p. 461; Long vs. Colburn, 11 id., p. 97), in Connecticut (Ogden vs. Raymond, 22 Conn., p. 385), in Maine (Harper vs. Little, 2 Greenl., p. 14; Stetson vs. Patton, id., p. 358), in Indiana (McHenry vs. 11-vol. ii. Obligation of agent to person. Agent not having Duffield, 7 Blackf., p. 41), nor Pennsylvania.-Hopkins vs. Mehaffey, 11 Serg. & R., p. 126. The maxim Subd. 3.-Sto. Ag., Secs. 311, 312. respondeat superior does not exempt the agent from liability even for mere negligence.-Arthy vs. Coleman, 30 Law Times, p. 101; 8 E. & B. (Am. ed.), p. 1092. Liability of an agent for acting beyond the scope of his employment as such.-See Truite vs. Wakelee, 19 Cal., p. 692. For a breach of confidence.Hardenbergh vs. Bacon, 33 Cal., p. 356; Hunsaker vs. Sturgis, 29 Cal., p. 142. Even when committed by an unpaid agent. Id. And where in executing a contract the agent uses terms which charge himself he is liable upon the instrument, but not if the terms bind the principal only.-Hall vs. Crandall, 29 Cal., p. 567; see also case where agent managing real property is liable only to his principal and not to real owner thereof for the rents and profits.-Shores vs. Scott River Co., 21 Cal., p. 135. 2344. If an agent receives anything for the benefit of his principal, to the possession of which another person is entitled, he must, on demand, surrender it to such person, or so much of it as he has under his control at the time of demand, on being indemnified for any advance which he has made to his principal, in good faith, on account of the same; and is responsible therefor, if, after notice from the owner, he delivers it to his principal. NOTE.-Story Agency, Sec. 300; Hearsey vs. Pruyn, 7 Johns., p. 179; see note to preceding section. 2345. The provisions of this Article are subject capacity to to the provisions of Part I, Division First, of this Code. contract. NOTE. The rights acquired by third persons against both principal and agent are stated in this Title. The mutual relations of principal and agent are a branch of service, and are defined in that part of the Code referred to in this section. So far as these relations create a mutual trust, they are regulated by the Title on Trust. ARTICLE V. DELEGATION OF AGENCY. SECTION 2349. Agent's delegation of his powers. 2350. Agent's unauthorized employment of sub-agent. 2351. Sub-agent rightfully appointed, represents principal. delegation 2349. An agent, unless specially forbidden by his Agent's principal to do so, can delegate his powers to another of his person in any of the following cases, and in no others: 1. When the act to be done is purely mechanical; 2. When it is such as the agent cannot himself, and the sub-agent can lawfully perform; 3. When it is the usage of the place to delegate such powers; or, 4. When such delegation is specially authorized by the principal. NOTE. "An agent, unless specially forbidden by his principal, can delegate his powers to another person in the cases mentioned in this section, but in no others.Ess vs. Truscott, 2 M. & W., p. 385; see Powell vs. Tuttle, 3 N. Y., p. 396; Moffat vs. Wood, 5 Seld. Notes, p. 14; Newton vs. Bronson, 13 N. Y., p. 593. Subd. 1.-Commercial Bank vs. Norton, 1 Hill, p. 501; see Powell vs. Tuttle, 3 N. Y., p. 407. Subd. 2.-Story Agency, Sec. 14. Subd. 3.-Laussatt vs. Lippincott, 6 Serg. & R., p. 393; see Horton vs. Morgan, 19 N. Y., p. 170; Whitehouse vs. Moore, 13 Abb. Pr., p. 142; Pollock vs. Stables, 12 Q. B., p. 765. Subd. 4.-Story Agency, Sec. 14. It has been held that agents may delegate mere mechanical powers but not discretionary powers.-Sayre vs. Nichols, 7 Cal., p. 535. An agent may, in some cases, employ a sub-agent, and the principal will be held liable for the wages of such sub-agent.-See McConnell vs. McCormick, 12 Cal., p. 142. powers. 2350. If an agent employs a sub-agent without Agent's authority, the former is a principal and the latter his agent, and the principal of the former has no connection with the latter. NOTE.-Story Agency, Sec. 217a; Code of La., ? 2976. unauthor ized employ ment of sub-agent. Sub-agent rightfully appointed represents principal. 2351. A sub-agent, lawfully appointed, represents the principal in like manner with the original agent; and the original agent is not responsible to third persons for the acts of the sub-agent. NOTE.-See Althorf vs. Wolfe, 22 N. Y., p. 355; Sadler vs. Henlock, 4 E. & B., pp. 570, 578. ARTICLE VI. Termination of agency. Same. TERMINATION OF AGENCY. SECTION 2355. Termination of agency. 2356. Same. 2355. An agency is terminated, as to every person having notice thereof, by: 1. The expiration of its term; 2. The extinction of its subject; 3. The death of the agent; 4. His renunciation of the agency; or, 5. The incapacity of the agency to act as such. 2356. Unless the power of an agent is coupled with an interest in the subject of the agency, it is terminated, as to every person having notice thereof, by: 1. Its revocation by the principal; 2. His death; or, 3. His incapacity to contract. NOTE. "Unless the power of an agent is coupled with an interest in the subject of the agency "-Knapp vs. Alvord, 10 Paige, p. 205; see Hunt vs. Rousmaniere, 8 Wheat., p. 174; "it is terminated as to every person having notice "-Cassidy vs. McKenzie, 4 Watts & Serg., p. 282; Ish vs. Crane, 8 Ohio State, p. 521. It may be doubted whether this clause has generally been accepted as law in this country (see Houghtaling vs. Marvin, 7 Barb., p. 412), as it certainly is not in England.-Blades vs. Free, 9 B. &. C., p. 167. Subd. 2.-Champney vs. Coope, 34 Barb., p. 539; Megary vs. Funtis, 5 Sandf., p. 376; Blades vs. Free, 9 B. & C., p. 167. Subd. 3.-Story on Agency, Secs. 485, 486. Insanity, not judicially declared, has been held to be no revocation (Wallis vs. Manhattan Bank, 2 Hall, p. 495); but this was on the ground that otherwise the authority would be thereby revoked without notice, an objection which this section obviates. CHAPTER II. PARTICULAR AGENCIES. ARTICLE I. AUCTIONEERS. II. FACTORS. III. SHIPMASTERS AND PILOTS. IV. SHIPS' MANAGERS. ARTICLE I. AUCTIONEERS. SECTION 2362. Auctioneer's authority from the seller. 2363. Auctioneer's authority from the bidder. eer's 2362. An auctioneer, in the absence of special Auctionauthorization or usage to the contrary, has authority authority from the seller, only as follows: 1. To sell by public auction to the highest bidder; 2. To sell for cash only, except such articles as are usually sold on credit at auction; 3. To warrant, in like manner with other agents to sell, according to Section 2323; 4. To prescribe reasonable rules and terms of sale; 5. To deliver the thing sold, upon payment of the price; 6. To collect the price; and, 7. To do whatever else is necessary, or proper and usual, in the ordinary course of business, for effecting these purposes. NOTE.-Subd. 1.-Story Agency, Sec. 108. from the seller. |