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subsequent ratification and adoption of the act by the principal, there must be evidence of previous knowledge on the part of the principal of all the material facts. The act of an unauthorized person in such cases is not void, but voidable ; 2 but when the principal is once fully informed of what has been done in his behalf, he is bound, if dissatisfied, to express his dissatisfaction within a reasonable time, and if he does not, his assent will be presumed. But where the act of the agent was by deed, the ratification also must in general be by deed ; 4 or, more generally speaking, wherever the adoption of any particular form or mode is necessary to confer the authority in the first instance, the same mode must be pursued in the ratification. The acts and conduct of the principal, evincing an assent to the act of the agent, are interpreted liberally in favor of the latter, and slight circumstances will sometimes suffice to raise the presumption of a ratification, which becomes stronger in proportion as the conduct of the principal is inconsistent with any other supposition. Thus, if goods are sold without authority, and the owner receives the price, or pursues his remedy for it by action at law against the purchaser, or if any other act be done in behalf of another, who afterwards claims the benefit of it, this is a ratification. Payment of a loss, upon a policy subscribed by an agent, is evidence that he had authority to sign it.8 Proof that one was in the habit of signing policies in the name and as the agent of another, and with his knowledge, is evidence of his authority to sign the particular policy in question ; 9 and if the principal has been in the habit of paying the losses upon policies so signed in his name, this has

1 Owings r. Hull, 9 Pet. 607; Bell v. Cunningham, 3 Pet. 81; Courteen v. Touse, 1 Campb. 43, n. See also Wilson v. Tummon, 6 Scott, N. R. 894; Nixon v. Palmer, 4 Selden (N. Y.), 398.

2 Denn v. Wright, 1 Pet. C. C. 64.

3 Cairnes v. Bleecker, 12 Johns. 300; Bradin v. Dubary, 14 S. & R. 27; Amory v. Hamilton. 17 Mass. 103; Ward v. Evans, 2 Salk. 442. · If he assents while ignorant of the facts, he may disaffirm when informed of them. Copeland v. Merchants' Ins. Co., 6 Pick. 198.

Blood v. Goodrich, 9 Wend. 68; s. c. 12 Wend. 525; Story on Agency, § 252. 5 Despatch Line, &c. v. Bellamy Man. Co., 12 N. H. 205; Boyd v. Dodson, 5 Humphr. 37.

6 Story on Agency, $ 253; Ward v. Evans, 2 Salk. 442.

7 Peters v. Ballister, 3 Pick. 495. But if the action is discontinued or withdrawn, on discovering that the remedy is misconceived, it is not a ratification. Ibid. See also Lent v. Padelford, 10 Mass. 230; Episcopal Charit. Soc. v. Epis. Ch. in Dedham, 1 Pick. 372; Kupfer v. Augusta, 12 Mass. 185; Odiorne r. Maxey, 13 Mass. 178; Herring v. Polley, 8 Mass. 113; Pratt v. Putnam, 13 Mass. 361; Fisher v. Willard, Id. 379; Copeland v. Merchants' Ins. Co., 6 Pick. 198.

8 Courteen v. Touse, 2 Campb. 43, n. 9 Neal v. Irving, 1 Esp. 61.

been held sufficient proof of the agency, though the authority was conferred by an instrument in writing. And an authority to sign a policy is sufficient evidence of authority to adjust the loss.? Where the principal, in an action against himself on a policy signed by an agent, used the affidavit of the agent to support a motion to put off the trial, in which the agent stated that he subscribed the policy for and on account of the defendant, this was held a ratification of the signature.3

§ 67. Same subject. Long acquiescence of the principal, after knowledge of the act done for him by another, will also, in many cases, be sufficient evidence of a ratification. (a) If an agency actually existed, the silence or mere acquiescence of the principal may well be taken as proof of a ratification. If there are peculiar relations between the parties, such as that of father and son, the presumption becomes more vehement, whether there was an agency in fact or not, and the duty of disavowal is more urgent. And if the silence of the principal is either contrary to his duty, or has a tendency to mislead the other side, it is conclusive. Such is the case among merchants, when notice of the act done is given by a letter which is not answered in a reasonable time. Whether a mere voluntary intermeddler, without authority, is entitled to the benefit of the principal's silence, is not clearly agreed ; but the better opinion is, that where the act was done in good faith for the apparent benefit of the principal, who has full notice of the act, and has done nothing to repudiate it, the agent is entitled to the benefit of his silence as a presumptive ratification.

1 Haughton o. Ewbank, 4 Campb. 88. So of bills of exchange. Hooe v. Oxley, I Wash. 19, 23.

2 Richardson v. Anderson, 1 Campb. 43, n. See also 2 Kent Comm. 614, 615. & Johnson v. Ward, 6 Esp. 47; ante, vol. i. $$ 196, 210. · Story on Agency, $$_255,258, cum notis; Amory v. Hamilton, 17 Mass. 103; Kingman v. Pierce, Id. 247 ; Frothingham v. Haley, 3 Mass. 70; Erick v. Johnson, 6 Mass. 193.

(a) Thus, if one is agent of a mining com- (N. Y.) 281. So where the agent was aupany for the purpose of working its mines, thorized to "sell the goods now in store, and has no authority to borrow money in and buy other goods in order to keep the its name, but does in fact borrow large stock good,” "but not to buy on credit sums of money, and the president of the without an order in writing from the company is informed of such loans, and principal," and the agent bought goods demand is made by the lender for payment on credit, which went into the stock of thereof, and within a reasonable time the the defendants and were kept and sold by company fail to disavow the act of its agent them, it was held that this was a sufficient in so borrowing the money, this is suffi- ratification of the act of the agent in buycient evidence of a ratification of the loan. ing the goods, although the principal was Gold-mining Company v. National Bank, not aware that they were bought on credit. 96 U. S. 640; Vianna v. Barclay, 3 Cow. Sartwell v. Frost, 122 Mass. 184.

§ 68. When agent's act is unlawful. If the act of the agent was in itself unlawful and directly injurious to another, no subsequent ratification will operate to make the principal a trespasser; for an authority to commit a trespass does not result by mere implication of law. The master is liable in trespass for the act of his servant, only in consequence of his previous express command;(a) which may be proved, either by direct evidence of the fact, or by his presence at the time of the transaction, or by any other legal evidence which will satisfy the jury. In the absence of such proof, the master is not liable in tort; for the only act of the master is the employment of the servant, from which no immediate prejudice can arise to any one; and the only authority presumed by the law, is an authority to do all lawful acts belonging to his employment. But if the servant, in doing such acts, perpetrates a fraud upon another, or occasions a consequential injury, the master is liable in an action on the case. (6) Thus, where the defendant, being the owner of a house, employed an agent to sell it, and the agent described it as free from rates and taxes, not knowing it to

1 See 1 Parsons on Contr. pp. 69, 70, n.

2 McManus v. Crickett, 1 East, 106; Middleton v. Fowler, 1 Salk. 282; Odiorne l'. Maxcy, 13 Mass. 178; Salem Bank v. Gloucester Bank, 17 Mass. 1; Wyman r. Hal. & Augusta Bank, 14 Mass. 58; Wilson v. Tummon, 6 Scott, N. R. 894; Southwick v. Estes, 7 Cush. 385.

8 Story on Agency, $ 308; 1 Bl. Comm. 431; Foster v. Essex Bank, 17 Mass. 479; Gray v. Portland Bank, 3 Mass. 264; Williams v. Mitchell, 17 Mass. 98; Lane v. Cotton, 12 Mod. 488; Shaw v. Reed, 9 Watts & Serg. 72. The sheriff, however, on grounds of public policy, is liable, in trespass, for the act of his deputy. Campbell v. Phelps, 17 Mass. 244; 1 Pick. 62.

(a) A corporation may be sued for an (b) The principal cannot be permitted assanlt and battery committed by their to enjoy the fruits of a bargain without servant acting, under their authority. adopting all the instrumentalities emMoore v. Fitchburg Railroad Co., 4 Gray ployed by the agent in bringing it to a (Mass.), 465. It is now well settled that consummation. If an agent defrauds the the principal is liable for the consequences person with whom he is dealing, the prinof an unlawful or even criminal act of cipal, not having authorized or participated his agent, done in the course of his em- in the wrong, "may, no doubt, rescind, ployment, as where the servant purposely when he discovers the fraud, on the terms rings a bell so as to frighten a horse (Ch. of making complete restitution.

But so B. & Q. R. R. Co. v. Dickson, 63 Ill. long as he retains the benefits of the deal151), or, in the line of his employment, ing, he cannot claim immunity on the commits an assault and battery (Moore v. ground that the fraud was committed by Fitchburg R. R. Co., 4 Gray (Mass.), 465), his agent, and not by himself. Elwell v. or maliciously prosecutes another (Gillett Chamberlin, 31 N. Y. 619.

Where an v. Mo. V. R. R. Co., 55 Mo. 315), or for agent buys an article for his principal, criminal negligence (Passenger R. R. Co. and the price goes down, another agent of v. Young, 21 Ohio St. 518. See also Sey: the same principal has no authority to mour v. Greenwood, 6 H. & N. 359; Ph. & repudiate the contract, unless specially Read. R. R. Co. v. Derby, 14 How. (U. S.) directed so to do. Law v. Cross, 1 Black 468; Ramsden v. B. & A. R. R. Co., 104 (U. S.), 533. Mass. 117. See also post, $ 222).

be otherwise ; but it was in fact liable to certain rates and taxes, as the owner knew; and, on the faith of the agent's representation, the plaintiff bought the house ; it was held, that the purchaser, being actually deceived in his bargain, might maintain case for deceit against the owner, though it did not appear that the latter had instructed the agent to make any representation as to rates and taxes. (a)

§ 68 a. Revocation. The proof of agency, thereby charging the principal, may be rebutted by showing that his authority was revoked prior to the act in question. But if he was constituted by writing, and the written authority is left in his hand subsequent to the revocation, and he afterwards exhibits it to a third person, who deals with him on the faith of it without notice of the revocation, or the knowledge of any circumstances sufficient to have put him on his guard, the act of the agent, within the scope of the written authority, will bind the principal.2

1 Fuller v. Wilson, 3 Ad. & El. N. S. 58. ? Beard v. Kirk, 11 N. H. 397.

Note. — [Mr. Justice Story (Story on Agency, c. 18) states the law in regard to the dissolution or determination of agency in substance as follows: An agency may be dissolved, either by the revocation of the principal, or by the renunciation of the agent, or by operation of law, as where the event occurs, or the period expires, to which and by which it was originally limited; or where the state and condition of the principal or agent has changed; or where the principal or agent dies; or where the subject matter of the agency has become extinct, or the principal's power over it has ceased; or where the trust contided to the agent has been completely executed. In general, a principal may determine or revoke the authority given to his agent, at his mere pleasure; and this is so even if the authority be expressly declared to be irrevocable, unless it be coupled with an interest, or unless it was given for a valid consideration. But where an authority or power is coupled with an interest, or where it is given for a valuable consideration, or where it is part of a security, then, unless there is an express stipulation that it shall be revocable, it is, from its own nature and character, irrevocable in contemplation of law, whether it is or is not expressed to be so upon the face of the instrument conferring the authority. If the authority has been in part executed by the agent, and if it admits of severance, or of being revoked as to the part unexecuted, it would seem that the revocation, either as to the agent or as to third persons, is good as to the part unexecuted, but not as to the part already executed. If the authority is not thus severable, the principal, it would seem, cannot revoke the unexecuted part, at least, without fully indemnifying the agent; and it would seem, the right of the other contracting party would not be affected by the revocation.

The revocation may be express, as by a direct and formal declaration publicly made

(a) As to the effect of fraud on a sub- and nothing else, ratification is allowable. sequent ratification of a contract, it has Thus, where an indorsement is forged on a been said that where the fraud is of such promissory note, no ratification of the fora character as to involve a crime, the ratio gery by the party whose name it purports fication of the act from which it springs is to be will render the indorsement good. opposed to public policy, and cannot be Shisler v. Vandike, 92 Pa. St. 447; citing permitted; but where the transaction is Pearsoll v. Chapin, 44 Pa. St. 9, and Negcontrary only to good faith and fair deal. ley v. Lindsay, 67 Pa. St. 217. ing, where it affects individual interests

known, or by an informal writing, or by parol ; or it may be implied from circumstances, as where the principal employs another person to do the same act, and the exercise of the authority of both is incompatible; or where the principal should himself collect the debts, which he had previously authorized the agent to collect.

The revocation takes effect as to the agent, when it is made known to him ; as to third persons, when it is made known to theni, and not before. Hence, if an agent is employed to sign, indorse, or accept bills and notes for his principal, and he is discharged by the principal, if the discharge is not known by persons dealing with him, notes and bills subsequently signed, indorsed, or accepted by the agent, will be binding upon the principal, upon the well-known maxim of law and equity, that where one of two innocent persons must suffer, he shall suffer, who, by his confidence or silence or conduct, has misled the other. (a)

An instance of the revocation of the authority of an agent, through the operation of law, by a change of condition or of state, producing incapacity in either party, when such authority is not coupled with an interest, is where an unmarried woman, as principal, gives authority to an agent, and afterwards marries, the marriage revokes the authority. So where the principal becomes insane, the lunacy having been established by an inquisition, it would seem that the authority of the agent would or might be revoked or suspended, during the continuance of the insanity. The bankruptcy of the principal operates as a revocation of the authority of the agent, touching any rights of property of which he is divested by the bankruptcy. Where the authority is coupled with an interest, as it need not be executed in the name of the principal, but is valid if executed in the name of the agent, it is not revoked by the marriage, or insanity, or bankruptcy of the principal.

The death, either of the principal or agent, operates as a revocation of the authority of the agent, if such authority is not coupled with an interest ; (b) even though the authority is declared in express terms to be irrevocable. Hunt v. Rousmaniere's Adm'r, S Wheat. 174. See also Wilson v. Edmonds, 23 N. H. 360 ; Dick v. Page, 17 Mo. 234 ; McDonald v. Black, 20 Ohio, 185. (c) The payment of money to an agent after the death of the principal, the death being unknown to both parties, is a good payment, and binds the estate of the principal. Cassiday v. McKenzie, 4 Watts & Serg. 282. See post, $ 518.]

(a) Fellows v. Steamboat Company, 38 accordingly creates a substitute, the power Conn. 197; Tier v. Sampson, 35 Vt. 179. of such substitute is withdrawn by the So if an agent exhibit to third parties a death of his principal; for the attorney proper authority which is on its face a con- being accountable for the acts of his subtinuing authority, and they deal with him stitute, since he appoints him on his own on the strength of that authority, they are responsibility to do those things which he not affected by a revocation of the authority was authorized to do, it follows that, when until it is brought to their notice. Hatch his death occurs, the source of the substi. v. Coddington, 95 U. S. 48.

tute's power is cut off and fails. The only (6) Merry v. Lynch, 68 Me. 94. Where exception to this rule is where from express one constitutes two persons jointly as his terms or from the nature of the power an agents, for a salary, and one of them be- inference arises, that the principal intends comes incapacitated for work, the principal the substitute shall act for him, notwithmay revoke the authority of both. Salis- standing the revocation of the authority bury v. Brisbane, 61 N. Y. 617.

of the original agent. Story, Agency, (c) Where one is made agent by a _469; Peries v. Aycinena, 3 W. & S. power of attorney, which power contains (Pa.) 64, p. 79; Lehigh, &c. Co. v. Mohr, à power of substitution, and the attorney 83 Pa. St. 228.

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