nevertheless warrant him, still the master would be liable upon the warranty, because the servant was acting within the general scope of his authority, and the public cannot be supposed to be cognizant of any private conversation between the master and servant (e); but if the owner of a horse were to send a stranger But not on to a fair with express directions not to warrant the horse, and warranty of the latter acted contrary to the orders, the purchaser could only ordered to have recourse to the person who actually sold the horse, and the sell, and not owner would not be liable on the warranty, because the servant warrant. was not acting within the scope of his authority (ƒ). stranger, Upon the same principle a gentleman, who by an agreement Precious v. with his groom allowed him five guineas a year for which he Abel. was to keep the horses shod, was held nevertheless to be liable to pay a farrier's bill for shoeing his horses, as it did not appear that the farrier knew of the agreement; and Lord Kenyon said, "That unless the farrier knew of the agreement and expressly trusted the groom it was no defence, for a tradesman has nothing to do with any private agreement between the master and servant" (g). And where (h) a gentleman contracted with his Rimell v. coachman, at 2207. a year, to provide horses and his own livery Sampayo. and everything connected with the carriage, but the coachman went in his master's livery to the plaintiff's stables and represented that he wanted a pair of job-horses for his master's carriage, and an agreement was made with him, at ten guineas a month, whereupon he took the horses away, and his master used them, and the plaintiff then sued the master for four months' hire; it was held not necessary for the plaintiff to prove that the coachman acted by his master's authority, as he had used the horses: and Littledale, J., said, “If the coachman made the contract in his own name, and represented to the plaintiff the agreement between himself and his master, of course, under such circumstances, the plaintiff cannot recover; but if he made no such representation of any agreement between himself and his master, I think that by the master sending him forth into the world, wearing his livery, to hire horses which he (the master) afterwards uses, knowing of whom they were hired, and yet not sending to ascertain if his credit had been pledged for them, an implied authority is given, and the master is bound to pay the hire. A master may be prevented by business or want of time from making a bargain himself, and may send his servant, and provided the business be within the regular department of the servant, the master is clearly liable." The (e) Fenn v. Harrison, 3 T. R. 760; Pickering v. Busk, 15 East, 45; see Story on Agency, s. 132. In note 4, that learned author says, "In America livery stable keepers are not understood to give their servants any general authority to sell their horses." (f) İbid. But if the master is unwilling to adopt a warranty given by his servant under such circumstances, he is bound to (h) Rimell v. Sampayo, 1 C. & If third party know of private orders, mas ter not Jordan v. Where servant is a special agent, parties deal ing with him must inquire into his authority. Ward v. Evans. Waters v. Fenn v. Harrison. jury, however, having found that there was no evidence of any direct application to the master on the part of the plaintiff, found a verdict for the defendant (i). If a third party, dealing with a servant on behalf of his master, know of the private agreement or instructions given by the master to his servant, he cannot of course charge the master (k) upon any contract contrary to that agreement. Accordingly, where (7) the defendant sent his son to obtain from the plaintiff a horse which he had agreed to sell to the defendant, and the plaintiff knew that the son was instructed only to take the horse if warranted, but the son took it without a warranty, it was held that the defendant was not liable to pay for the horse, which did not answer the warranty agreed to be given. But where a servant is employed by his master to act for him in a single transaction, he must be regarded as the special agent of his master; and, in such case, it is incumbent upon every one dealing with him, who wishes to charge his master upon his contracts, to inquire into the extent of his authority, as, should he exceed it, his master will not be bound. And, therefore, where (m) the plaintiff sent his servant to receive 601. from B., and B. desired E., who owed him money, to strike off 60l. from his debt and pay the plaintiff's servant; E. accordingly credited himself with 607. in account with B., but instead of giving the plaintiff's servant money gave him a goldsmith's note, which the servant accepted as payment; it was held that the plaintiff was not bound by the act of the servant in receiving the note instead of money. Again, where (n) the defendant drew a cheque in favour of a creditor, and gave it to his own farm bailiff (who bought and sold cattle for him) with instructions to deliver it to the creditor in whose favour it was drawn, but the bailiff, at the request of the creditor, got it discounted by the plaintiff (a banker at some distance), and gave the money to the creditor; some days afterwards the bankers on whom the cheque was drawn failed, and the plaintiff having omitted to present the cheque to them, brought an action against the defendant for the amount: but Alexander, C. B., was of opinion that the defendant was not bound by the act of his farm bailiff, who had no authority to act as he had done. So, as we have seen, if the owner of a horse send a stranger to a fair, with express directions not to warrant the horse, and the latter act contrary to the orders, the purchaser could only have recourse to the person who actually sold the horse, and the (i) See Hiscox v. Greenwood, 4 Esp. 174, where a servant, having acted beyond the scope of his employment, Lord Ellenborough thought the tradesman, not having inquired of the master, could not charge him. (k) Howard v. Braithwaite, 1 Ves. & B. 209. (1) Jordan v. Norton, 4 M. & W. 155. In this case, however, it will be observed, that the son was a special agent, into whose authority the party dealing with him is bound to inquire. (m) Ward v. Evans, 2 Lord Raym. 928; S. C. Salk. 442. (n) Waters v. Brogden, 1 Y. & J. 457. owner would not be liable on the warranty, because the servant was a special agent, and was not acting within the scope of his authority (0). where person he is a special And where a person dealing with an agent has notice, either And so from the mode in which the authority is exercised, or it would dealing with seem in any other manner, that the agent is acting under a him has special authority; as, for instance, where a bill of exchange is notice that accepted or indorsed by a clerk or cashier " per procuration' agent. of A. B. (the master), C. D. (the agent or servant), he is, à fortiori, bound to inquire whether or not the authority has been properly followed; and if he do not make such inquiries, and it turn out that the party exceeded his authority, he must suffer for his temerity (p). Therefore, where (7) the manager of a banking company, Alexander v. who had authority to draw, accept and indorse bills, on account Mackenzie. and for the benefit of the company, indorsed a bill for the accommodation of one G., " per proc." of the company, and signed his name, it was held, that the company were not bound by such indorsement. And Coltman, J., said, "Any house may allow a clerk to indorse bills of exchange in the name and on account of the firm, and so give currency to them, notwithstanding any secret limitation of his authority. If this banking company had been in the habit of allowing their cashier or manager to indorse bills on their behalf, that would have imported a general authority, and the public would not have been bound to inquire into the circumstances or the precise extent of such authority. But in every instance the indorsement by the form of it bears an intimation to the public, that the manager acts under a special authority; and therefore the persons into whose hands the bills might come, were bound to see that the authority was properly pursued." servant must If upon inquiry into the authority of such an agent, it should written turn out that he is acting under a written authority, parties authority of dealing with him should call for the production of the authority, be inspected. for should the agent exceed his authority, his principal will not be bound (r). This rule indeed applies equally to the case of a general agent. structions need not. If, however, the act assumed to be done is within the autho- Private inrity given, (in ascertaining which the authority must be strictly construed,) (s) the principal will be bound, although the act done may be in violation of private instructions as to the mode of executing the authority. With such instructions third parties have nothing to do (t). It is therefore important to bear in (0) Fenn v. Harrison, 3 T. R. 760; see Paley on Ag. 202. (p) Jordan v. Norton, 4 M. & W. 155; Neale v. Turton, 4 Bing. 149. (q) Alexander v. Mackenzie, 6 C. B. 766; see Smith v. Johnson, 3 H. & N. 222; Smith v. M'Guire, 3 H. & N. 554, ante, p. 160. (r) Attwood v. Munnings, 7 B. & C. 278; Story on Agency, s. 72; and see the American case (s) Attwood v. Munnings, ubi (t) Story on Ag. 73; and see Smethurst v. Taylor, 12 M. & W. 545. I Where master is not bound by contract of servant. Stubbing v. Pearce v. Maunder v. Hunter v. Countess of Hiscox v. mind the distinction between the two, although it is not in all cases easy to distinguish the one from the other. But where a master has not either expressly, or by implication, from a course of dealing, authorized his servant to pledge his credit, his servant cannot, by so doing, render him liable to pay for goods so obtained. Thus (u), where the defendant contracted with the plaintiff to serve him with meat at a certain price for ready money, and the cook was accustomed to order the meat, and when the bill amounted to a few shillings or a guinea, used to pay it, generally on Monday morning, and the defendant always gave her money to pay; which course of dealing continued for a long time, till at last the defendant got a cook who embezzled the money; it was held that the defendant was not liable, and Lord Kenyon, C. J., said, "Nothing could be clearer than that where a man gives his servant money to pay for commodities as he buys them, if the servant pockets that money, the master will not be liable to pay it over again. But if the master employs his servant to buy things on credit, he will be liable to whatever extent the servant shall pledge his credit." And so where (x) the defendant dealt with the plaintiff for the porter used in his family, and was in the habit of paying ready money to the plaintiff for a certain quantity which was allowed for the family, but the maid-servant obtained some clandestinely for her own use, and that of the defendant's wife's mother, but it did not appear that the plaintiff knew of this circumstance, it was held that the defendant was not liable; Lord Eldon saying, that "to allow such a demand would be to put it in the power of servants and tradesmen to ruin the master." Again, where (y) a butler ordered brandy in his master's name, and the brandy was consumed by the butler and cook, without the master being privy to the order, delivery or consumption, the master was held not liable to pay for it. And where (z) a lady ordered of a tailor two suits of livery a year for her coachman, and the tailor supplied one; but, at the desire of the coachman, supplied plain clothes instead of the other, it was held that the lady was only liable to pay for the livery actually supplied, and was entitled to set off against a subsequent account for clothes the price of a suit of livery which had been supplied and paid for, but taken back by the tailor from the coachman. Upon similar principles where (a) a servant, having injured his master's chaise by careless driving, left it with a coachmaker to be repaired without acquainting his master, and without any orders from him, and it appeared that he had never employed the coachmaker, who refused to deliver up the chaise without (u) Stubbing v. Heintz, Peake, 47; and see per Lord Abinger, C. B., in Flemyng v. Hector, 2 M. & W. 181. (x) Pearce v. Rogers, 3 Esp. 214. (y) Maunder v. Conyers, 2 Stark. 281. (z) Hunter v. Countess Dowager of Berkeley, 7 C. & P. 413. (a) Hiscox v. Greenwood, 4 Esp. 174. payment of his bill for the repairs. The master having brought an action for the chaise, recovered; as it was held that the coachmaker, not having inquired of the master whether the order for repairs was given by his authority, had no claim against him for the amount of his bill. children. So if a servant be left in charge of children with a sufficient Servant left allowance for their support, he has no power to pledge his mas- in charge of ter's credit for necessaries or goods supplied for the support of the children (b). farm bailiff. The bailiff of a large farming establishment, through whose Implied hands all payments and receipts takes place, has no implied authority of authority to pledge the credit of his employer by drawing and endorsing bills in his name (c). Nor has the resident Mining agent (d) of a mining company, or a co-adventurer (e), an im- agent. plied authority to borrow money upon the credit of the shareholders. And the secretary of a company who has authority only to accept bills drawn by A. on the company, cannot bind the directors by accepting bills drawn by B. (ƒ) Insurance Nor has the country agent of an insurance company authority Agent to to receive payment of premiums after the usual fifteen days' Company. grace (g). Nor has the agent of an insurance company power to bind the company by issuing policies contrary to the deed of settlement (). Company. Nor has the secretary of an intended railway company implied Secretary of authority, as such, to bind individual members of the provisional Railway or managing committee upon contracts, even for articles necessary for carrying on the business of the company. In order to fix them with liability to pay for goods, work or labour, &c., ordered by the secretary, it is necessary to connect the party sought to be charged with the order, either by showing his previous consent or subsequent recognition of it (i). The same principle applies to letters written by such secretary. They are only binding upon the board of directors, or such members of it as authorized the secretary to write them (k). Therefore, Rennie v. where (1) an engineer brought an action against a provisional Wynn. committeeman of a railway company for work and labour in surveying the intended line of railway, and the only evidence to charge the defendant was a letter written by the secretary, but (b) Atkyns v. Pearce, 26 L. J., C. P. 252. (c) Davidson v. Stanley, 2 M. & G. 721; see Waters v. Brogden, 1 Y. & J. 457. (d) Hawtayne v. Bourne, 7 M. & W. 595. (e) Ricketts v. Bennett, 4 C. B. 686. (f) Neale v. Turton, 4 Bing. 149. (g) Acey v. Fernie, 7 M. & W. 151. (h) Hamburgh v. Hull and London Fire Insurance Company, 3 H. & N. 789. (i) See Barnett v. Lambert, 15 M. & W. 489; Reynell v. Lewis, 15 M. & W. 517; Cooke v. Tonkin, 9 Q. B. 936; Barker v. Stead, 3 C. B. 946; Williams v. Pigott, 2 Exc. 201; Bailey v. Macaulay; and other cases, 19 L. J., Q. B. 73; 13 Q. B. 815. (k) Burnside v. Dayrell, 3 Exc. 224; and see Todd v. Emly, 7 M. & W. 429. (1) Rennie v. Wynn, 4 Exc. 691. |