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CHAPTER IV.

AGENCY.

SECTION 1.-General Views.

MUCH of the business of life must necessarily be carried on by persons, not acting in their own right, but under authority derived from others. The exigencies of trade and commerce, the pressure of an extensive business, or of professional, official, or other engagements, the existence of personal illness or infirmity, the necessity of transacting business at the same time at various and remote places, and the importance of securing accuracy, skill, ability and speed in the accomplishment of the great concerns of human life, must require the aid and assistance and labors of many persons, in addition to the immediate superintendence of him, whose rights and interests are to be directly affected by the results.

The theory of our law is, that whatever a man may do of and for himself, he may do by another; and correlatively, that what is rightfully and by authority done by another is to be deemed and treated as done by the party himself. Of course one who is under a disability which prevents him from doing an act, in his own right, and for himself, cannot authorize another to do the act for him.

He who employs another to act for him is, in common .language, known as the Principal, Constituent, or Employer; and the party employed is usually called an Agent, Attorney, Proxy, or Delegate; and the relation thus created is termed an Agency.

The power delegated is properly called an authority. When the agency is created by writing the instrument is usually called a letter of attorney, but frequently in common speech a power of attorney.

SECTION 2.

Who may be Agents?

We have remarked that to enable one to be a principal, he must have power to do the act for himself, that is, must be under no positive disability, as infancy, outlawry, &c.

But it is not necessary for a person to be capable of acting in his or her own right to qualify him to act, for another as agent; but infants, married women, persons attainted, or outlawed, may act for others as agents; and a married woman may even act as agent for her husband, and being duly authorized may bind him by her act and contract, though under disability to bind herself, by her own contract. So, she may, as the agent of another, enter into a contract with her own husband.

Of course persons under natural disability, as idiocy, lunacy, &c., cannot act as agents.

An agent cannot delegate his authority to do an act, unless the letter of his authorization specially allows it.

It is presumed that special trust and confidence is reposed in him; and therefore he may not delegate to another the authority, which his principal might not have been willing so to entrust.

Thus an executor, real estate agent, factor or broker, has usually a personal trust reposed in him, and may not delegate to another his authority to bind his principal.

There are exceptions to this rule: as, where it is indispensable by e laws, in order to accomplish the end; or where it is understood by the parties to be the mode in which the business entrusted would be done; as, where goods are to be sold at auction and the law requires that it be done by a licensed auctioneer; or where by the usage of trade a ship broker is employed by the master, (himself an agent), to procure a freight.

SECTION 3.

Different kinds of Agency.

An agency may be general or special. A general agent is one who is authorized to do all things for his principal, or all acts connected with a particular business or employment.

There is an important difference between the powers of a general agent and one employed for a special purpose. The acts of a general agent, or one whom a man puts in his place to do all his business, of a particular kind, or at a specified place, will bind his principal so long as he keeps within the general scope of his authority, even when he acts contrary to private instructions; this rule being necessary to prevent fraud upon third persons, and to encourage confidence in dealing.

But an agent appointed for a particular purpose, and under a limited power, cannot bind his principal if he exceeds that power; his special authority must be strictly pursued. One dealing with such an agent deals at his own risk and peril, if the agent exceeds the limits of his power; he should, therefore, call for an exhibit of the letter of authority, and, if he has any doubt that it covers the point in hand, should take advice.

If the agent thus exhibits his authority, and pursues the power as shown, the principal is bound, though private instructions had still further limited him.

This doctrine rests on sound morality. There must be no deception anywhere, and the principal is bound, whenever he clothes his agent with powers calculated to induce third persons to believe he had due authority in the given case.

If the servant of a horse dealer, having general instructions and power to sell for his employer, but with private instruction not to warrant as to soundness, does warrant, the employer is bound; because the servant having general authority to sell, acted within the scope of that authority, and the public cannot be supposed to know the private conversation in which he was forbidden to warrant.

Agent is the general designation, or genus. The most common species are Attorneys, Auctioneers, Brokers, Factors, and Masters of Ships.

Attorneys are of two classes; attorneys in law and attor-. neys in fact.

The former are a well-known professional class, having charge of causes and matters intrusted to them to be man aged before judicial tribunals.

They have general power to bind their principals (clients) in all matters relating to suits under their charge.

An attorney is deemed an officer of the courts in which he has right to practice.

It is his duty, to be true to his client and to the court, to manage the business entrusted to. him with care, skill and fidelity, to keep his client informed as to the progress of the matters in his hands, and to keep the secrets of his client, confided to him as such.

The courts protect this confidence between an attorney and his client, and will not allow matters revealed under its protection to be called out, even upon the witness stand.

If an attorney deposit his client's money to his own private account, he is responsible for it if lost.

If he deposit it to the account of his client, he is not responsible.

If discharged by one party he may properly act for the other; provided he makes no improper use of information gained in acting for his former client.

Like other agents, he is responsible for any carelessness, negligence, or want of reasonable skill in transacting the business entrusted to him.

He could not, however, be held responsible for mistakes in doubtful points of law or practice, nor for the fault of counsel retained by him.

An attorney in fact is, in the broad sense, one who is specially authorized to do any act for another; but the term is commonly applied to persons authorized to sign the name of a principal,—as a confidential clerk, who is specially authorized to sign the name of his employer.

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An auctioneer is one who is authorized to sell goods at public auction: he is primarily deemed the agent of the seller, but for certain purposes is treated as the agent of both parties.

He is so considered in inserting the name of the parties, seller and purchaser, in his book of sales; and the memorandum so made by him will bind both parties, and brings them within the statute of frauds.

An auctioneer has a special property in the goods entrusted to him for sale, and may sue for damage done to them; and he has a lien on them and their proceeds for his commission.

He can sell only for ready money, unless there is a usage of trade, in reference to the goods sold, to sell on credit; and if, in the absence of such usage, he should sell on credit, he would be personally responsible to the principal, whose goods he had sold.

A broker is a middle-man engaged in negotiating contracts relative to property.

He is the agent of his employer, is not usually entrusted with the possession of the property which he is to sell, and is not authorized to buy or sell in his own name.

Like an auctioneer, he is for some purposes deemed the agent of both parties, and may bind them both by signing a contract within the statute of frauds. When employed to buy and sell goods, he gives the buyer a note of the sale, sometimes called a sold note, and to the seller a like note,called a bought note,-in his own name as agent of each; and if he has not exceeded his authority they are each thereby respectively bound.

Being primarily the agent of his employer, he of course does not become the agent of the other party, till a contract is settled between the principals; for as a middle-man he is not entrusted to settle and fix the terms, but merely to negotiate between the principals.

It would be a fraud for him to act for both parties, concealing his agency for one from the other, in a case where he was intrusted with discretion.

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