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master was considered to be liable in a private action for damages arising from misfeasance or for negligence, or want of ordinary diligence in his office, in not safely transmitting a letter.a Whether he was liable himself for the negligence of his clerks or assistants, was a point not decided ; b though if he were to be deemed *responsible in that case, it would only result •611 from his own neglect, in not properly superintending the discharge of his duty in his office.c
The general doctrines of agency and lien have a material bearing on this subject of bailment; but as they are essentially connected with mercantile transactions, their extent and importance will require a separate discussion.
a See, also, Schroyer v. Lynch, in the supreme court of Pennsylvania, cited in Story on Bailments, 302, 2d edit.
o In Conwell v. Voorhees, 13 Ohio Rep. 523, it was held that a mail contractor was not liable to the owner of a letter for money lost by the mail by the carelessness of the contractor's agents carrying the mail.
Since the first edition of this work, my learned and estimable friend, Mr. Justice Story, in the discharge of his duties as Dane Professor of Law in Harvard University, has favoured the public with Commentaries on the Law of Bailments, with Illustrations from the Civil and Foreign Law; and in 1840, he gave to the public an improved and enlarged edition of that work. I would strongly recommend that volume to the student, who wishes to pursue more extensively than the plan of the present lecture permitted, the refined distinctions and practical illustrations which accompany this branch of the law. I have availed myself of the lights which that work has afforded, and the confidence which it has inspired, while engaged in the revision of my own more brief and imperfect survey of the subject. This excellent treatise is the most learned and the most complete of any that we have on the doctrine of bailment. It aims to lay down all the principles appertaining to the subject, both in the civil, the foreign, the English and the American law, with entire accuracy; and I beg leave to say, after a thorough examination of the work, that in my humble judg. ment, it has succeeded to an eminent degree.
OF PRINCIPAL AND AGENT.
The law of principal and agent is of constant application in the commercial world, and the rights and duties which belong to that relation ought to be accurately, as well as universally understood. And while recommending that title to the attention of the student, as well as of the practising lawyer, I will give a summary view of those general principles, which apply at large to every branch of the subject, and more especially to agencies that relate to commercial concerns.
1. Agency, how constituted.
Agency is founded upon a contract either express or implied, by which one of the parties confides to the other the management of some business, to be transacted in his name, or on his account, and by which the other assumes to do the business, and to render an account of it. The authority of the agent may be created by deed or writing, or verbally without writing; and, for the ordinary purposes of business and commerce the latter is sufficient, a Though the statute of frauds of 29 Charles II., *requires, in certain cases, a contract for the sale of goods to be in writing, and signed by the party to be charged or by his authorized agent, the authority to the agent need not be in writing. It may be parol.a The agency may be inferred from the relation of the parties, and the *nature of the employment, without proof of any 614* express appointment.b It is sufficient that there be satisfactory evidence of the fact that the principal employed the agent, and that the agent undertook the trust. The extent of the authority of an agent will sometimes be extended or varied on the ground of implied authority, according to the pressure of circumstances connected with the business with which he is intrusted. The statute of frauds does not require that the authority of the agent contracting even for the sale of land, should be in writing. But if an agent is to convey or complete the conveyance of real estate or any interests in land, or to make livery of seisin, the appointment, must be in writing;e and where the conveyance or any act is required to be by deed, the authority to the attorney to execute it must be commensurate in point of solemnity, and be by deed also.?
* Chitty on Commercial Law, vol. iii. p. 104. Lord Eldon, 9 Ves. 250. Stackpole v. Arnold, 11 Mass. Rep. 27. Long v. Colburn, Ibid. 97. Northampton Bank v. Pepoon, Ibid. 288. Ewing v. Tees, 1 Binney's R. 450. Shaw v. Nudd, 8 Pick. Rep. 9. Turnbull & Phyfe v. Trout, 1 Hall's N. Y. Rep. 336. M'Comb v. Wright, 4 Johns. Ch. Rep. 667.
Rucker v. Cammeyer, 1 Esp. N. P. Rep. 105. Chitty on Contracts, 213. Lord Eldon, in Coles v. Trecothick, 9 Vesey, 250.
o Whitehead v. Tuckett, 15 East's Rep. 400. Hooe v. Oxley, 1 Wash. U. S. Rep. 19. Long v. Colburn, ub. sup.
• Judson v. Sturges, 5 Day's Rep. 556.
d Clinan v. Cooke, 1 Sch. f Lef. 27. 31. Barry v. Lord Barrymore, cited in 1 Sch. f. Lef. 28. McWhorter v. McMahan, 10 Paige, 394. But in Louisiana it is settled that an agency to purchase real estate cannot be established by parol. Breed v. Gray, 10 Robinson's Rep. 35.
• The statute of frauds on this point was adopted verbatim in the first revision of the laws of New York, (sess. 10. ch. 44.) and the provision was continued in the N. Y. Revised Statutes, vol. ii. p. 134, sec. 6.
i Co. Litt. 52. a. Horsley v. Rush, cited in 7 Term Rep. 209. Cooper v. Rankin, 5 Binney's Rep. 613. Plummer v. Russell, 2 Bibb's R. 174. Sedgwick, J., 5 Mass. Rep. 40. Shamburger v. Kennedy, 1 Badg. f Dev. Rep. 1. Mellen, Ch. J., in 2 Greenleaf's Rep. 260. Blood v. Goodrich, 9 Wendell's Rep. 68. Delius v. Cawthorn, 2 Dev. N. C. Rep. 90. Too. o Neal v. Irving, 1 Esp. Rep. 61. Hooe v. Oxley, 1 Wash. U. S. Rep. 19. So, also, if a confidential clerk had been accustomed to draw checks for his principal, and had occasionally been permitted to endorse for him, the jury would be warranted to infer a general authority to endorse. Pres cott v. Flinn, 9 Bing. Rep. 19.
The agency must be antecedently given, or be subsequently adopted ; and in the latter case, there must be some act of recognition. But an acquiescence in the assumed agency of another, when the acts of the agent are brought to the knowledge of the principal, is equivalent to an express authority. By permitting another to hold himself out to the world as his agent, the principal adopts his acts, and will be held bound to the person who gives credit thereafter to the other in the capacity of his agent. Thus, where a person sent his servant to a shopkeeper for goods upon credit, and paid for them afterwards, and sent the same servant again to the same place for goods, and
with money to pay for them, and the servant re*615 ceived the goods but embezzled *the cash, the
master was held answerable for the goods; for he had given credit to his servant by adopting his former act.a So, where a broker had usually signed policies of insurance for another person, or an agent was in the habit of drawing bills on another, the authority was implied from the fact that the principal had assumed and ratified the acts; and he was held bound by a repetition of such acts, where there was no proof of notice of any revocation of the power, or of collusion between a third party and the agent.b It is the prior conduct of the principal that affords just ground to infer a continuance of the agency in that particular business; and the rule is founded on obvious principles of justice and policy. It was familiar to the Roman law,c and is equally so in the law
mer, J., Ibid. 153. Rogers, J., 6 Serg. of Rawle, 331. Davenport v. Sleight, 2 Dev. f Battle, 381. Paley on Agency, by Lloyd, 158_160.
· Hazard v. Treadwell, 1 Str. Rep. 506. Rusby v. Scarlett, 5 Esp. R. 76. Todd v. Robinson, 1 Ryan f Moody's Rep. 217.
• Dig. 17. 1. 6. 2. Ibid. 50. 17. 60.
of modern Europe, and the jurisprudence of this country.a Emerigon states an interesting case within his experience, of the presumption of ratification of an act, from omission in due season to dissent from it. A merchant of Palermo wrote to a house at Marseilles, that he had shipped goods consigned to them, to be sold on his account. The ship being out of time, the consignees at Marseilles caused the cargo to be insured on account of their friend at Palermo, and gave him advice of it. He received the letter, and made no reply, and the vessel arriving safe, he refused to account for the premium paid by the consignees, under the pretence they had insured without orders. But the reception of the letter, and the subsequent silence, were deemed by the law inerchant equivalent to a ratification of the act. At this day, and *with *616 us, the authority would be implied from the duty of the consignee, without the aid of the subsequent silence, provided the previous course of dealing between the parties had been such as to warrant the expectation.b The ground taken at Marseilles was undoubtedly sufficient; and it is a very clear and salutary rule in relation to agencies, that where the principal, with knowledge of all the facts, adopts or acquiesces in the acts done under an assumed agency, he cannot be heard afterwards to impeach them, under the pretence that they were done without authority, or even contrary to instructions. Omnis ratihabitio mandato æquiparatur. When the principal is informed of what has been done, he must dissent, and give notice of it in a reasonable time; and if he does not, his assent and ratification will be presumed.c Sem
• Emerigon, Traité des Assurances, tom. i. p. 144. Nickson v. Brohan, 10 Mod. Rep. 109. Williams v. Mitchell, 17 Mass. Rep. 98. Bryan v. Jackson, 4 Conn. R. 288.
Buller, J., in Wallace v. Tellfair, 2 Term Rep. 188, n. Smith v. Lascelles, Ibid.
• Dig. 14. 6. 16. Dig. 46. 3. 12. 4. Dig. 50. 17.60. Towlo v. Stevenson, 1 Johns. Cas. 110. Cairns & Lord v. Bleecker, 12 Johns. Rep. 300. Erick v. Johnson, 6 Mass. Rep. 193. Frothingham v. Haley, 3 Ibid. 70.