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nor v. Parker, 114 Mass. 331; Smith v. Sublett, 28 Tex. 163; Furnas v. Frankman, 6 Neb. 429; Loomis v. Simpson, 13 Iowa, 532; Barrett v. Rhem, 6 Bush, 466; Hunt v. Douglass, 22 Vt. 128; Paul v. Edwards, 1 Mo. 30; Pendall v. Rench, 4 McLean, 259; Dorchester etc. Bank v. New England Bank, 1 Cush. 177; Commercial Bank v. Norton, 1 Hill, 501; Sayre v. Nichols, 7 Cal. 535; 68 Am. Dec. 280; Lewis v. Ingersoll, 3 Abb. App. Dec. 55.

Thus, authority conferred upon canal commissioners to enter upon and take possession of land, etc., of individuals for the construction of a canal, can be executed only by them in person, or under their express direction. It must follow, of course, that an engineer, or any other subagent of the state, cannot lawfully exercise such power without the express direction of the canal commissioners, or one of them, even if such engineer or other subagent has been intrusted with the duty of superintending the canal in the vicinity of the premises entered upon: Lyon v. Jerome, 26 Wend. 485; 37 Am. Dec. 271; Stoughton v. Baker, 4 Mass. 522; 3 Am. Dec. 236. So the directors of a corporation are not authorized to delegate their authority to lease premises of the corpora tion. The directors of a corporation are merely its agents, and are not the corporation: Gillis v. Bailey, 21 N. H. 149. A contract between the owner of a land certificate and his agent, by which the agent is employed and empowered to locate the certificate, involves a personal confidence reposed in the agent, and does not, in the absence of an express power of substitution, or of an established custom of the country, confer upon the agent the right to transfer the trust to another person. The mere possession of the certificate does not imply a power in the holder to employ another person to locate it: Smith v. Sublett, 28 Tex. 163. It has been held that an agent cannot delegate the power to receive money, for this involves discretion or trust: Lewis v. Ingersoll, 3 Abb. App. Dec. 55; but there are cases to the contrary: Grinnell v. Buchanan, 1 Daly, 538. A power of attorney must be executed in the name of the person who gives it: See monographic note to Davenport v. Parsons, 81 Am. Dec. 777, on powers of attorney. But the rule that an agent, public or private, cannot delegate his authority in cases requiring the exercise of judgment and discretion, is said not to apply to the indorsements of drafts by a deputy in the state treasurer's office: Note to Newton v. Bronson, 67 Am. Dec. 105.

Exceptions. To the general rule that an agent has, ordinarily, no power to appoint a subagent, there are, however, a number of excep tions; as, where the agent has express authority to employ a subagent; where the act to be done is purely ministerial; where the agent is allowed to do so by a lawful custom or usage; where the object of the agency cannot lawfully he attained otherwise; or where the principal is aware that his agent will appoint a subagent. These several exceptions to the general rule will be examined in their order.

Implied Authority.-An authority to appoint a subagent or substitute, between whom and the principal a privity will exist, may be implied where, from the conduct of the parties to the original contract of agency, the usage of trade, or the nature of the particular business which is the subject of the agency, it may reasonably be presumed that the parties to the contract of agency originally intended that such authority should exist, or where, in the course of employment, unforeseen emergencies arise which impose upon the agent the necessity of employing a substi tate: De Bussche v. Alt, 8 Ch. Div. 286, 310; Appleton Bank v. MoGilvray, 4 Gray, 518; 64 Am. Dec. 92. The principal may confer the power of delegation or substitution, either expressly or impliedly, or he may, after delegation by the agent, ratify or confirm it in such manner as to make the subagent responsible directly to the principal; but the fact that the principal knows that a subagent will be employed does not destroy the liability of the agent to the principal: Loomis v. Simpson, 13 Iowa, 532.

Express Authority.-As said in the principal case, the consent and au thority from the principal to the agent to employ a subagent may be

given expressly or by implication. If a general agent is specially au thorized to employ subagents to act in the name of his principal, the further authority to bind the principal for their payment will be implied: Furnas v. Frankman, 6 Neb. 429.

Ministerial Acts.-While an agent cannot delegate any portion of his power requiring the exercise of discretion or judgment, he may do so as to powers or duties merely ministerial in their nature: Sayre v. Nichols, 7 Cal. 535; 68 Am. Dec. 280; Renwick v. Bancroft, 56 Iowa, 527; Newell v. Smith, 49 Vt. 255; Norwich University v. Denny, 47 Vt. 13; Grady v. American Cent. Ins. Co., 60 Mo. 116; Bodine v. Exchange Fire Ins. Co., 51 N. Y. 117; 10 Am. Rep. 566; Williams v. Woods, 16 Md. 220; Eldridge v. Holway, 18 Ill. 445; Grinnell v. Buchanan, 1 Daly, 538. The rule that an agent cannot delegate his powers unless the subagency is directly authorized or ratified by his principal, with full knowledge of the facts, has no application to acts purely ministerial. In such cases, if the agent directs the act, or, being aware of the circumstances, afterward adopts it as his own, that is sufficient: Grady v. American Cent. Ins. Co., 60 Mo. 116. Hence, if empowered to bind his principal by an accommodation acceptance, he may direct another to write it, having first determined the propriety of the act himself; and it will bind the principal, though naming the delegate, and not the agent, as the one exercising the power: Commercial Bank v. Norton, 1 Hill, 501. So, if an agent is authorized by the owners to sell certain lands, exercising his own discretion as to price and terms after an examination of the land, he may lawfully employ a subagent to find a purchaser, and a sale made by such subagent is binding upon the owners: Renwick v. Bancroft, 56 Iowa, 527. If a person is a freight and passenger agent, his office clerk's signature of the agent's name to a contract of shipment, the execution of such contracts being a part of his duties, will bind the agent's principal in the same way as if the agent had signed his own name: Newell v. Smith, 49 Vt. 255. So one having authority to sign the name of another to a subscription paper may procure a third to do it in his presence: Norwich University v. Denny, 47 Vt. 13. Again, if a policy of insurance is signed by a subagent for the agent, and the latter afterward takes the policy, receives the premium, and, with full knowledge of the facts, redelivers the instrument, it there by becomes the act of the company as much as though signed by the agent himself. That such authority in the subagent is recognized by the company may be shown by proving previous transactions of a similar character: Grady v. American Cent. Ins. Co., 60 Mo. 116. An insurance agent can employ a clerk and authorize him to contract for risks, to deliver policies and renewals, and to collect premiums and to give credit therefor. The act of the clerk in such cases is the act of the agent and binds the company: Bodine v. Exchange Fire Ins. Co., 51 N. Y. 117; 10 Am. Rep. 566. So a broker, having made a contract of sale, may authorize his clerk to make and sign an entry or memorandum thereof, under the broker's direction and in his presence, so as to bind the parties named in the contract; and the clerk may reduce the contract to writing and sign it, where he exercises no discretion, but merely acts ministerially, or mechanically, under the direction and supervision of his employer, the broker: Williams v. Woods, 16 Md. 220. And an attorney in fact may, by another acting for him, serve a notice upon a party in possession, as a foundation for a proceeding by forcible entry and detainer: Eldridge v. Holway, 18 Ill. 445. "There is," said the court, "neither confidence, skill, discretion, or judgment required to deliver a written notice, and make oath of it, which could prevent the employment of anyone by an agent. The maxim withholding the power of subdelegation of authority only has place when there is an object and end to be gained-where the interest of the principal may be neglected or injured by substitution. When, from the nature of the act to be done, there can be no difference, the principle cannot apply": Eldridge v. Holway, 18 Ill. 445,

448.

Usage, Custom, or Course of Trade.-The appointment of a subagent may be justified by a known and established usage or course of dealing. If the principal constitutes an agent to do a business as to which there is a known and established usage of substitution, the principal must be held to have expected and authorized such substitution: Planters' etc. Nat. Bank v. First Nat. Bank, 75 N. C. 534; Darling v. Stanwood, 14 Allen, 504; Laussatt v. Lippincott, 6 Serg. & R. 386; 9 Am. Dec. 440. Thus, if a commission merchant is employed here to buy goods in a distant market, and the custom of that market is for commission merchants to employ brokers to make such purchases, and this custom is understood by the principal, the commission merchant may properly employ a broker of experience and good reputation to make the purchases; and, if he does so, he will not be liable for such broker's errors or misconduct: Darling v. Stanwood, 14 Allen, 504. So, where goods were intrusted by the plaintiff to a merchandise broker to sell, deliver, and receive payment, and the broker deposited them, in accordance with usage, with a commission merchant connected with an auctioneer, taking his note therefor, and some of the goods were afterward sold at a less price than the broker was authorized to sell them for, it was held that the principal was bound by such act of the broker, and that he could not maintain trover against the commission merchant: Laussatt v. Lippincott, 6 Serg. & R. 386; 9 Am. Dec. 440. In this case the court said:" Business to an immense amount has been transacted in this manner, and, the usage being established, it follows, that when the plaintiff authorized his broker to sell, he authorized him to sell according to the usage; and when the defendants dealt with the broker, even if they had known that the goods were not his own, they had a right to consider him as invested with power to deal according to the usage.' So, where defendants employed an architect to draw a specification of a building proposed to be erected, and the architect employed the plaintiff to make out the "quantities," or calculations, which work was to be paid for by the successful competitor for the building contract, the defendants, upon refusing to allow the building to proceed, on account of a dispute between them and the architect, are liable to the plaintiff for making out the "quantities," or calculations, especially where there is a usage in the trade for architects or builders to have their "quantities," or calculations, made out by surveyors, where the custom is beneficial to the parties concerned, and where the defendants themselves had an intimation that that was the practice: Moon v. Guardians of Whitney Union, 3 Bing. N. C. 814.

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Necessity-Acquiescence.-The fourth exception above mentioned may be treated under the head "Necessity." It is a well-established principle, that the authority of an agent is always construed to include all the necessary and usual means of executing it properly: Howard v. Baillie, 2 H. Black. 618, 620; and it clearly follows that if an agent can show that instructions of his principal could not be carried out except through subagents, he is justified in delegating so much of his authority as the nature of the agency requires. In other words, the employment of subagents is imperatively necessary in many instances, and the interests of the principal will suffer if such subagents are not employed. In such cases, the power to employ the necessary subagents will be implied: Planters' etc. Bank v. First Nat. Bank, 75 N. C. 534; Speight v. Gaunt, 9 App. Cas. 1, 29; Rossiter v. Trafalgar Life etc. Assn., 27 Beav. 377; Dorchester etc. Bank v. New England Bank, 1 Cush. 177; Harralson v. Stein, 50 Ala. 347; Tiernan v. Commercial Bank, 7 How. 648; 40 Am. Dec. 83; Commercial Bank v. Martin, 1 La. Ann. 344; 45 Am. Dec. 87; Buckland v. Conway, 16 Mass. 396; Strong v. Stewart, 9 Heisk. 137,

147.

Thus, a trustee may, in the administration of the trust fund, avail himself of the agency of third parties, such as bankers, brokers, and others, if he does so from a moral necessity, or in the regular course of business; and, if a loss to the trust fund should be occasioned thereby, the trustee will be exonerated, unless some negligence or default of his

AM. ST. REP.. VOL, L.- 8

has led to that result: Speight v. Gaunt, 9 App. Cas. 129. A proposal for a life insurance policy was accepted, on behalf of a London assurance company, by their agent in Australia, who acted in the transaction through the medium of a subagent. The premium was paid, and the transaction was held binding on the company, although the agent had no authority to appoint a subagent, and although there were some informalities, but of form only: Rossiter v. Trafalgar Life etc. Assn., 27 Beav. 377. So, where a draft, payable at a distant place, is left with a bank for collection, it must be presumed that it is intended to be transmitted to a subagent, at the place where it is payable, and not that the bank is to employ its own officers to proceed there, for the purpose of obtaining payment: Dorchester etc. Bank v. New England Bank, 1 Cush. 177; Baldwin v. Bank of Louisiana, 1 La. Ann. 13; 45 Am. Dec. 72; Commercial Bank v. Martin, 1 La. Ann. 344; 45 Am. Dec. 87; Appleton Bank v. McGilvray, 4 Gray, 518; 64 Am. Dec. 92. Again, if a note is sent to a bank for collection, and, for the protection of the principal, it becomes necessary to have the note protested, the authority of the bank to employ the proper officer will be implied: Tiernan v. Commercial Bank, 7 How. 648; 40 Am. Dec. 83. So, an agent employed to collect a demand by suit has implied power to employ the necessary attorneys: Commercial Bank v. Martin, 1 La. Ann. 344; 45 Am. Dec. 87; Buckland v. Conway, 16 Mass. 396; or, if authorized to sell goods, to employ a broker or auctioneer: Harralson v. Stein, 50 Ala. 347; Strong v. Stewart, 9 Heisk. 137, 147; or, if authorized to charter a vessel, to employ a vessel broker to assist him in securing the charter: Saveland v. Green, 40 Wis. 431. The master of a vessel who carries goods to a distant port, with orders to dispose of them for the most he can obtain, will be justified, if he is unable to find a purchaser, in placing the goods in the hands of a merchant in good standing, to be sold for the owner's benefit: Day v. Noble, 2 Pick. 615; 13 Am. Dec. 463.

The legal maxim, that an agent cannot delegate his authority to a subagent, is not of universal application to factors and commission merchants, and can only be invoked by the principal, when sought to be charged by the act of the subagent: Harralson v. Stein, 50 Ala. 347.

The fifth exception above mentioned is based upon an assumption of the tacit consent or acquiescence of the principal. "Semper qui non prohibet pro se intervenire, mandari crediture," was the maxim of the civil law. If the appointment of a subagent was contemplated by the parties at the time of the creation of the agent's authority, or if it was then expected that subagents might or would be employed, this must be treated as at least implied authority for such an appointment: Planters' etc. Nat. Bank v. First Nat. Bank, 75 N. C. 534.

Arbitrators cannot, as a general rule, delegate their powers. They are selected by parties who have placed particular confidence in their personal judgment, discretion, and ability, and it would be a palpable injustice if they were permitted to delegate their responsibilities and powers to others. Hence, if arbitrators delegate their powers, the award is totally void: Lingood v. Eade, 2 Atk. 501, 505. They must give their own judgment upon the matter, submitted, uninfluenced by that of others: Little v. Newton, 2 Scott. N. R. 509; Whitmore v. Smith, 5 Hurl. &. N. 824; Eads v. Williams, 4 De Gex, M. & G. 674; but it is perfectly proper for them, in a case requiring it, to obtain, from disinterested persons of acknowledged skill, such information and advice in reference to technical questions submitted to them as may be necessary to enable them to come to correct conclusions. The award, however, must be the result of their own judgment, after obtaining Buch information: Anderson v. Wallace, 3 Clarke & F. 26; Caledonian Ry. Co. v. Lockhart, 3 Macq. 808; Eads v. Williams, 4 De Gex, M. & G. 674; Soulsby v. Hodgson, 3 Burr. 1474. Where, however, parties have agreed to have their dispute settled by laymen, it is legal miscon duct for one of the arbitrators to insist upon having a lawyer at his elbow to assist him from time to time with his a ivice, and to be present throughout the proceedings for the purpose of regulating the con

duct of the arbitration, especially where objection to his presence is made by one of the arbitrators: Proctor v. Williams, 8 Com. B., N. S., 386, 390. But there is no valid objection to arbitrators availing themselves of such mechanical or ministerial assistance as the nature of their duties may require: Thorp v. Cole, 2 Cromp. M. & R. 367; Moore v. Barnett, 17 Ind. 349.

Attorneys. By the employment of an attorney at law, a personal trust is reposed which cannot be delegated to another, except with the consent of the client. An attorney, with ordinary powers, cannot delegate his authority to another, so as to raise a privity between such third person and his principal, or to confer on him, as to the principal, his own rights, duties, and obligations: Hitchcock v. McGehee, 7 Port. 556; Johnson v. Cunningham, 1 Ala. 249; Ratcliff v. Baird, 14 Tex. 43. But, if an attorney does delegate his powers without authority, and this act is afterward assented to by the party interested, with full knowledge of the facts, it will be as binding on him as if done by his authority. Even if information is seasonably given to the person interested, of such unauthorized delegation, and he does not dissent from it, he will be held to have acquiesced in it, as silence in such a case will amount to a ratification: Hitchcock v. McGehee, 7 Port. 556. A client is entitled to the personal services of his attorney upon the argument. The retainer of one member of a firm is a retainer of all, and, unless otherwise stipulated, the cause may be argued and conducted by any one of them. Hence, if a client knowingly permits his case to be argued by a person in the service of his attorneys and under their direction, he is presumed to have consented thereto: Eggleston v. Boardman, 37 Mich. 14.

An attorney who employs another attorney to make a collection placed in the hands of the former is liable for the acts of the latter in collecting the money and not paying it over. The receipt of claims, "for collection," imports an undertaking by the attorney himself to collect, and not merely that he receives the claims for transmission to another for collection, for whose negligence he is not to be responsible. He is therefore liable by the very terms of his receipt for the negligence of the distant attorney, who is his agent, and he cannot shift responsibility from himself upon his client. There is no hardship in this, for it is in his power to limit his responsibility by the terms of his receipt, when he knows he must employ another to make the collection: Bradstreet v. Everson, 72 Pa. St. 124; 13 Am. Rep. 665, per Agnew, J.; Cummins v. Heald, 24 Kan. 600; 36 Am. Rep. 264. An attorney is civilly liable for the acts of the attorney he employs, in collecting and failing to pay over moneys collected for the former: Pollard v. Rowland, 2 Black f. 22; Cummins v. McLain, 2 Ark, 402; Wilkison v. Griswold, 12 Smedes & M. 669; Abbott v. Smith, 4 Ind. 452; Walker v. Stevens, 79 Ill. 193. The collecting attorney is, of course, directly liable to the transmitting attorney: Lewis v. Peck, 10 Ala. 142.

A Licensed Auctioneer cannot delegate to another his authority to sell: Stone v. State, 12 Mo. 400; Coales v. Trecothick, 9 Ves. 234, 250; but be may employ another person to use the hammer and make the outcry under his immediate direction and supervision; and his occasional absence during the sale will not subject his substitute to the penalties of the statute against selling by auction without a license: Ćommonwealth v. Harnden, 19 Pick. 482. A statute forbidding an auctioneer to authorize any person to act as his substitute does not prevent him from employing a crier, if the auctioneer superintends the sale in perBon: Poree v. Bonneval, 6 La. Ann. 386. If, by the terms of a deed of trust, a United States marshal is authorized to sell the property described, a sale made by a deputy of such marshal as "auctioneer" is void, and passes no title to the purchaser: Singer Mfg. Co. v. Chalmers, 2 Utah, 542. So a sheriff has no power to authorize the attorney of one of the parties to adjourn a judicial sale. For such an irregularity, a sale on the day to which the adjournment was made will be held invalid: Wolf v. Van Metre, 27 Iowa, 318.

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