per qui non prohibet pro se intervenire, mandare credituro

Procurator qui recepit literas mandati, et statim non .contradixit, videtur acceptare mandatum.

The Roman law would oblige a person to indemnity an assumed agent, acting without authority, and without any assent or acquiescence given to the act, provided it was an act necessary and useful at its commencement.a But the English law has never gone to that extent; and, therefore, if A. owes a debt to B., and C. chooses to pay

it without authority, the law will not raise a pro*617 mise in A. to indemnify *C. ; for if that were so, it

would be in the power of C. to make A. his debtor nolens volens.b If there be any relation between the parties, a payment without authority may be binding on the person for whose use it was made, if it be made under the pressure of a situation in which one party was involved by the other's breach of faith. A surety, from his relation to the principal debtor, has an interest, and a right to see that the debt be paid ; and if he pays to re

Clement v. Jones, 12 lbid. 60. Shaw v. Nudd, 8 Pick. Rep. 9. Merlin, Questions de Droit, vol. i. p 482. Verbo, Compte Courant, sec. 1. Pitts v. Shubert, 11 Louis. Rep. 286. Flower v. Jones, 7 Martin, N. S. 143.

a Dig. 3. 5. 45. Ibid. 3. 5. 10. 1. The negotiorum gestio, according to the civilians, is a species of spontaneou z agency, or an interference by one in the affairs of another, in his absence, from benevolence or friendship, and without authority. The negotiorum gestor acquires no right of property by means of the interference, and he is strictly bound, not only to good faith, but to ordinary care and diligence; and in some cases he is held responsible for the slightest neglect. Jones on Bailment, 37. 1 Bell's Com. 269. Pothier, App. du Quasi. Contrat Negotiorum Gestor, No. 208, 209, 210. Pothier, Contrat de Mandat, n. 200—212. Nelson v. Macintosh, 1 Starkie's Rep. 237. Louisiana Civil Code, art. 2274, 2275. Lord Ellenborough, in Drake v. Shorter, 4 Esp. Rep. 165. To lay a foundation for a claim of recompense or remuneration on the part of the negotiorum gestor, the labour or expense must be bestowed either with the direct intention of benefitting the third party against whom the claim is made, or in the bona fide belief that the subject belongs to the person by whom the expense or labour is bestowed. Lord Stair's Institutions, vol. i. ed. 1832, note g. pa. 54, by J. E. More, the editor.

Lord Kenyon, 8 Term Rep. 310. Story, J., 5 Mason's Rep. 400.

lieve himself, it is money paid to and for the use of the other. So, in the case mentioned by Lord Kenyon, b from Rolle's Abridgment, where a party met to dine at a tavern, and all except one went away after dinner without paying their quota of the tavern bill, and the one remaining paid the whole bill; he was held entitled to recover from the others their aliquot proportions. The recovery must have been upon the principle, that as a special association, they stood in the light of sureties for each other, and each was under an obligation to see that the bill was


II. Of the power and duty of agents.

An agent who is intrusted with general powers, must exercise a sound discietion, and he has all the implied powers which are within the scope of the employment. A power to settle an account, implies the right to allow payments already made. If he be an empowered agent in a particular transaction, he is not bound to go on and do all other things connected with, or arising out of the case; for the principal is presumed to have his attention awakened to every thing not within the specific

• Exall v. Partridge, 8 Term Rep. 308. • Ibid. 614.

• When several persons dino together at a tavern, each is liable for the reckoning. Collyer on Part. 25, note a. They are considered to be liable jointly. They are parties to a joint contract. But the members of a club are not partners, and are not to be treated as such. The committee of a club are the agents of the members at large, and bound by the contracts they make in that character, but the members are not bound by the acts of the committee if they exceed their authority as agents. Todd v. Emly, before Tindal, Ch. J., 8 Meeson f. W. 505, and cited at large in Woodworth on Joint Stock Companies, p. 174–185. See, also, Eichbaum v. Irons, 6 Watts f. Serg. 67, S. P. As to the liability of the member of a club, the question is, is the contract was not made personally with the member, whether there was sufficient evidence of an authorized agency to make a contract binding on the members personally. Fleming v. Hec. tor, 2 Meeson of Welsby, 172. It is not a question of partnership, but of principal and agent.

charge. If his powers *are special, and limited, he must strictly follow them ; but whether there be a special authority to do a particular act, or a general authority to do all acts in a particular business, each case includes the usual and appropriate means to accomplish the end. An agent acting as such cannot take upon himself at the same time an incompatible duty. He cannot have an adverse interest or employment. He cannot be both buyer and seller, for this would expose his fiduciary trust to abuse and fraud.c

If. A. authorizes B. to buy an estate for him at 50 dollars per acre, and he gives 51 dollars an acre, A. is not bound to pay that price; but the better opinion is, that if B. offers to pay the excess out of his own pocket, A. is then bound to take the estate. This case is stated in the civil law, and the most equitable conclusion among the civilians is, that A. is bound to take the estate at the price he prescribed. Majori summæ minor inest.d So, where an agent was directed to cause a ship to be insured at a premium not exceeding three per cent., and the agent, not being able to effect insurance at that premium, gave three and a quarter per cent. ; the assured refused to reimburse any part of the premium, under the pretence that his correspondent had exceeded his orders; but the French admiralty decreed, that he should refund the three per cent; and Valin thinks they might have

a Dubreuil v. Rouzan, 13 Martin's Louis. Rep. 158. Hodge v. Durn. ford, Ibid. 100. But the negotiorum gestor of the civil law, who interferes where the interest of his principal does not positively require it, must do everything necessarily dependent on the business he commences, though not within the order or knowledge of the person for whom it is transacted.

• Paley on Agency, by Lloyd, p. 197—200. Story on Agency, 2d edit. p. 71. 99.

e See infra, vol. iv. 438. Story on Agency, 199, 200. McGehee v. Lindsay, 6 Ala. Rep. 16.

a Inst. 3. 27. 8. Ferriere, sur Inst. h. t. Pothier, Traité du Contrat de Mandat, No. 94. 96. The act of an agent exceeding his authority, is good pro tanto and void as to the excess. Johnson v. Blasdale, 1 Smedes of Marshall's Miss. Rep. 1.

gone further, and made him pay the quarter per cent. ex bono et æquo; because, he says, it is permitted, in the usage of trade, for factors to go a little beyond their orders, when they are not very precise and absolute.& The decree was undoubtedly correct, and the injustice of the defence disturbed in some degree the usually accurate and severe judgment of Valin.

If the agent executes the commission of his principal in part only, as if he be directed to purchase fifty shares of bank stock, and he purchases thirty only, or if he be directed to cause 2000 dollars to be insured on a particular ship, and he effects an insurance for 1000 dollars, and no more, it then becomes a question, whether the principal be bound to take the stock, or pay the premium. The principal may perhaps be bound to the extent of the execution of the commission in these cases, though *619 it has not been executed to the utmost extent; and this seems to have been the conclusion of the civil law.b But a distinction is to be made according to the nature of the subject. If a power be given to buy a house, with an adjoining wharf and store, and the agent buys the house only, the principal would not be bound to take the house, for the inducement to the purchase has failed. So, if he be instructed to purchase the fee of a certain farm, and he purchases an interest for life or years only, or he purchases only the undivided right of a tenant in common in the farm; in these cases the principal ought not to be bound to take such a limited interest, because his object would be defeated. It might be otherwise, if the agent was directed to buy a farm of 150 acres, and he buys one corresponding to the directions as nearly as possible containing 140 acres only. The Roman lawyers considered and discussed these questions with their usual sagacity and spirit of equity; and whether the

. Valin, Com. sur l'Ord. de la Mer. tom. ii. p. 32, 33.

o Dig. 17. 1. 33. Green, J., in Gordon v. Buchanan, 5 Yerger's Tenn. Rep. 81.

principal would or would not be bound by an act executed in part only, depends in a measure upon the reason of the thing, and the nature and object of the purchase.a

If the agent does what he was authorized to do, and something more, it will be good, as we have seen, so far as he was authorized to go, and the excess only would be void. If an agent has a power to lease for twentyone years, and he leases for twenty-six years, the lease, in equity, would be void only for the excess, because the line of distinction between the good execution of the power and the excess, can be easily made. But, at law, even such a lease would not be good, pro tanto, or for

the twenty-one years, according to a late English *620 *decision in the K. B.c If, however, the agent does

a different business from that he was authorized to do, the principal is not bound, though it might even be more advantageous to him; as, if he was instructed to buy such a house of A., and he purchased the adjoining house of B. at a better bargain ; or, if he was instructed to have the ship of his correspondent insured, and he insured the cargo. The principal is not bound, because the agent departed from the subject matter of the instruction.d

There is a very important distinction on this subject

· Dig. 17. 1. 36. Pothier, Traité du Contrat de Mandat, No. 95. 1 Livermore on the Law of Principal and Agent, 100, 101.

Sir Thomas Clarke, in Alexander v. Alexander, 2 Ves. 644. Campbell v. Leach, Amb. Rep. 740. Sugden on Powers, 545.

• Roe v. Prideaux, 10 East's Rep. 158.

d Dig. 17. 1. 5. 2. Pothier, Traité du Contrat de Mandat, No. 97. Grotius, de Jure B. 4. P. b. 2. ch. 16. sec. 21, says, that the famous question stated by Aulus Gellius, whether an order or commission might be executed by a method equally or more advantageous than the one prescribed, might easily be answered, by considering whether what was prescribed was under any precise form, or only with soine general view that might be effected as well in some other way. If the latter did not clearly appear, we ought to follow the order with punctuality and precision, and not interpose our own judgment when it had not been required.

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