AGREEMENTS Agent. No. III. An Agreement between a Principal in the Country and an Agent in AGENT. General rcmark. Who may be an agent. Kinds of agents. Caution in framing ap pointment of a general agent. (1) The business of commerce could not be carried on (nor indeed could many of the ordinary concerns of life be at all times conducted) without the assistance of agents, or persons appointed to act for the parties beneficially interested in the subject matter of the transaction; hence the law legitimizes acts done by an agent, as if done by the principal, under the well-known maxim, qui fecit per alium fecit per se. And as agencies are offices of a ministerial nature only, the performance of them does not require any legal, but only a personal discretion or judgment, i. e. such as the principal in his own discretion thinks them competent to perform; therefore any person, without regard to the legal disabilities in other matters, as coverture, minority, or the like, may be appointed an agent to do whatever the principal himself has authority to do. Co. Lit. 52. a. Agents are either general or special. A general agent is one appointed to manage all the affairs of his principal, either in some particular place, or in some particular matter discretionally, according to his own judgment. A special agent is one appointed to perform some particular or specific thing, or to complete some particular transaction, in the mode, and according to the directions pointed out by his principal. In the first case, the principal is bound by whatever his agent may do consistently with the general scope of his authority, and nature of the matter entrusted to him; because, if he trust his agent with powers to which those who treat with him cannot know the extent, he must abide the consequences: but in the latter case, the principal is bound to the extent only of the special authority delegated, and not by any excess of, or deviation from it; for here, as his authority is circumscribed, and is known to be so from the character in which he acts, as will appear by the instances adduced in a subsequent page, (see post, p. 29. n.) it behoves the persons with whom he contracts to see its extent, or to sustain the consequences of their neglect. Hence, caution should be used by solicitors in preparing the form of an appointment of every general agent; that his powers are not, by any sweeping words, extended to authorize (the principals) of, &c. agent) (2) of, &c. of the one part, and (the AGREEMENTS of the other part. WHEREAS the Agent. him to do any thing which may be prejudicial to the interests of the principal, in excess of the authority reposed in him; for which purpose it will be proper (where any such danger is apprehended) to insert a negative clause, prohibiting him from doing or acceding to such and such particular things, in the exercise of his powers; for although this may not annul the transaction as between the principal and third persons, (see Harrison v. Harrison, 3 Durnf. and E. 177.) yet it will make him responsible to his principal for a wilful breach of the trusts confided to him. The same doctrine, on the other hand, suggests the propriety, in framing Caution in the appointment of a special agent, of guarding against the insufficiency of his framing appowers to conclude and complete the contract or transaction to be effected, pointment of a the authority of a special agent being strictly construed and confined to special agent. the particular and express powers delegated to him; but as even a special agent may do all such acts as flow from his particular powers, or from the nature of the transaction, it will be proper, in the appointment of a special agent, to insert a similar restrictive clause to that already mentioned, if it be thought fit to restrain him from doing any particular act, which is within the scope of his implied authority, but which it is not intended he should exercise. In other respects, no particular form or wording of the instrument is No particular necessary to constitute an agent, nor is it even essential that it should form essential be in writing, unless in particular cases required by statute, (and which will be noticed hereafter). Co. Lit. 48. b. 94. b. Rex v. Biggs, 3 P. Wms. 423. But it would evidently be imprudent as well for the principal to give, as for the agent to accept, an authority otherwise than in writing, in order to prevent all doubts as to the limits and extent of the powers intended to be transferred, and all questions as to the exercise of those implied by law. The appointments of factors and brokers will furnish practical illustrations of the distinction we have been noticing between general and special agency, and upon which some further remarks will be made on these, (see post, No. IV.) In addition to what has already been said, it may be observed, that in Notice of agent's order to protect the principal against the liability to which he is legally authority. subject by the misconduct of his agents, in the cases I have mentioned, the solicitor for the principal, in the appointment of an agent, whether general or special, should advise his client (where the thing is practicable) to give to the party contracting or negotiating with the agent, notice, before the completion of the contract or transaction, of the agent's acting as such, and not as a principal, and of the extent of his authority. See Maners v. Henderson, 1 East, 335, and 1 Peake's Rep. 177. *(2) Great circumspection should be had by a principal in the appoint- Principal bound ment of an agent, as the agent, by becoming the representative of his by acts of agent. principal, will bind him in all transactions relative to the subject of the agency, unless when he grossly, palpably, and evidently is acting in excess of the usual authority of agents of a similar description. And if the AGREEMENTS Said (principals) are agents and manufacturers of Agent. Recital of appointment of agent. Covenant by agent to dispose of manufactures consigued to him. Notice of agent exceed. ing his authority. Agents copart ners. Copartners. their works, at , at Now aforesaid, and in order to increase the sale of their said goods and commodities, being desirous of keeping a stock of the various articles of their manufacture, at for the London markets, have agreed with the said (agent) to become their agent in disposing of the same, upon the terms and conditions hereafter mentioned. THESE PRESENTS WITNESS, that for the considerations hereinafter mentioned, He (4) the said (agent) doth hereby for himself, his heirs, executors, and administrators, covenant, promise, declare, and agree with, and to the said (principals) and each of them respectively, and their respective executors, administrators, and assigns, that he the said (agent) shall and will, during the term of years, to be computed from the day of the date of these presents, (but determinable nevertheless as hereinafter mentioned) accept and receive all such goods, wares, and merchandize, as shall be sent or consigned to him, by the said (principals), or any, or either of them (5), and carefully deposit the same in warehouses or agent exceed his authority, immediate notice should be given of it to the party with whom he has contracted, as an acquiescence for any unnecessary length of time would be an assent to the transaction, and be an implied authority for similar dealings by the agent with the same or other parties. See Ward v. Evans, Ld. Raym. 930. Spittle v. Lavender, 2 Brod. & Bing. 452, and very trifling circumstances will afford a presumption of subsequent assent. See Fern v. Harrison, 4 Durnf. & E. 177. Hunter v. Prinsep, 10 East. 378.; and see also 2 Durnf. & E. 189. n. Hence the solicitor should advise great caution to be observed by the prin cipal in his correspondence with his agent on the subject of any excess of authority which he does not intend to sanction; and in case of the agent ceasing to be such, immediate notice (and the most public in the case of a general agency) should be given of his removal to prevent the principal being further liable for his acts. (4) If there be several agents in copartnership, say, "They the said (agents,) for themselves, severally and respectively, and for their several and respective heirs, executors, and administrators, but not the one for the other of them, or for the heirs, executors, or administrators, or for the acts, deeds, or defaults, of the other of them, do, and each of them doth hereby covenant, &c." as above. (5) If copartners, say, "Other person or persons who may be copartner or copartners with them or either of them, for the time being," and so through out. Agent. At such price, &c. as princi pals shall direct. And in default of directions to the best of his other proper places; AND ALSO shall and will use his best endea- AGREEMENTS vours and means to sell, and dispose of the same, at such price or sum, or prices or sums, as he shall be required in writing, by and under the hands of the said (principals) or any or either of them, or for such further or other price or sum, or prices or sums, as can or ought to be had or obtained for the same, according to the rise or advance in the current or market price thereof; and at the expense and costs of him the said (agent) deliver the same to the several purchasers thereof;* and in all cases where he shall not receive any express directions relative thereto, will so act therein, as will to the best of his judgment be most beneficial to them the said (principals); AND also shall and will from time to time, on the first day of judgment. every month, send and transmit to the said (principals) and to the survivors and survivor of them, a full, clear, and correct statement in writing, of all orders, he shall have received and executed, and of all goods which may have come to his hands, and of all such thereof as he may have sold, and to whom, and whether for ready money or on credit, and likewise of all such other matters, transactions, and things as may in anywise concern the said agency business, and which may have taken place during the preceding month*; AND FURTHER, that he the said (agent), his clerks, agents, or servants, shall not nor will, without such consent in writing as aforesaid, at any time or times, within the said period or term of years, take or execute any order or direction for vending or disposing of, nor shall nor will vend or dispose of, or seek or endeavour to vend or dispose of any , or other merchandize of the nature or kind aforesaid, for or on account of himself the said (agent), his heirs, executors, administrators, or assigns, or for or on account of any person or persons whomsoever, other than and except them the said (principals), their executors, administrators, or assigns (6). PROVIDED ALWAYS NEVERTHELESS, that in case the said (principals), their respective executors, administrators, or assigns, shall not be able to supply or furnish, or shall not in fact supply or furnish the said (agent), his a Will not act as like agent for other persons. If principals fail supply manu to factures, agent may buy on their account. The parts within asterics here and in the subsequent parts of this precedent, are insertions by the present Editor. (6) It appears to be a lawful and binding stipulation, that an agent shall not employ himself in the affairs of another during the subsistence of the present appointment. See 1 Campb. 527. Agent not to act for others. AGREEMENTS executors, administrators, or assigns, with such merchandize as aforesaid, upon receiving a request or notice in writing from and Agent. under the hand of the said (agent) within the time in such notice expressed, then and in every such case it shall be lawful for him the said (agent), his executors, administrators, or assigns, and he and they are lawfully allowed and required to provide and purchase elsewhere, and from any other person or persons whomsoever, such quantities of goods and merchandize, as he or they shall have demanded, or have occasion for in the mean time, and until the same can and shall be furnished or supplied by the said (principals), their respective executors, administrators, or assigns; he the said (agent), his executors, administrators, or assigns, at all times, and from time to time accounting with the said (principals), their executors, administrators, and assigns, for all and every the net profits to arise from the sale thereof, after deducting the first cost or price for the same, and the charges and expenses of carriage, and also the allowance or poundage hereinafter mentioned. AND they, the said (principals) for themselves, severally and respectively, and for their several and respective executors, administrators, and assigns, but not the one for the other of them, or the executors or administrators, or the acts, deeds, or defaults of the other of them, do, and each of them doth hereby covenant, declare, and agree, with and to the said (agent), his executors, administrators, and assigns, that they the said (principals), their executors, administrators, or assigns, or some or one of them, shall and will from time to time, during the subsistence of this agreement, unless prevented by some rule of law or equity, or other just and sufficient cause (7), consign, supply, and deliver, or cause to be consigned, supplied, and delivered, at their own costs and expense, unto the said (agent), his executors, administrators, or assigns, with as little delay as may be after notice in writing shall be given to them, under the hand of the said (agent), his executors, administrators, or assigns, so much and such quantities and sorts or kinds of Covenant by principals to supply manufactures. And allow per cent. commission. goods and merchandizes, as he the said (agent) his executors, administrators, or assigns, shall require. AND shall and will allow Bankruptcy of principals. (7) This agreement would be dissolved by bankruptcy, or any act rendering the performance of it illegal or impossible. Partridge v. Sowerby, 3 Bos. and Pul. 172; but if the obstacle be of a temporary nature, it will be a suspension only of the contract, which will revive upon its removal. Hadley v. Clarke et al, 8 Durnf, and E. 259. |