Except as considered in Part B of this chapter (covering cases not of true agency) an agent's authority must be traceable to something the principal has said or done whereby he has actually conferred, or whereby to third persons he seems to have conferred, the authority in question, with the qualification that he may confer the authority by ratification after the agent has acted as well as by prior authority.
An appointment of an agent is a matter of agreement between principal and agent.15 The principal need not confer any more authority than he wishes. The extent of the authority which in any given case is conferred, whether actual, implied, or apparent, is considered at length hereafter.
In the appointment no particular formalities are required except that the power to execute an instrument under seal must be under seal; and except as may be locally required by statute for particular classes of agencies.
15. Central Trust Co. v. Bridges, 57 Fed. 753.
Contracts under seal when executed by an agent require authority under seal, as it is said that the authority must be of equal dignity with the deed.16 But if the law does not require the contract to be under seal or the seal is not required by the principal the gratuitous addition of the seal by the agent can be ignored and the contract treated as a simple, binding contract if the agent otherwise pursued his authority.17
In those jurisdictions in which the significance of the private seal has been abolished, the reasoning above has, of course, no application.
By the original statute of frauds, considered at length in the volume on Contracts in this series, certain classes of contracts can not be proved in court against the objection that there is no written memorandum signed by the party sought to be charged, or by his agent thereunto lawfully authorized. But the statute does not say that the authority of an agent must itself be in writing, even in those classes of cases covered by the statute. Hence it has always been considered that under the statute of frauds, an agent of the defendant may make the requisite memorandum and sign the name of his principal, although his authority is oral. This is still the law, except that in some states it has been further provided that in case of a contract to sell real estate, the principal is not bound upon the contract the agent may make, even if he pursue his actual authority, if that authority is not in writing.
To establish the relationship by contract, all the elements essential to formation of contract must exist, but agency may also result from a gratuitous appointment.
16. Watson v. Sherman, 84 111. 263.
17. Worral v. Munn, 5 N. Y. 229, 55 Am. Dec. 330.
Agency may arise out of contract, and this is the usual case. In that case there must be all the elements which are essential to the formation of any contract, namely, competent parties to contract, offer and acceptance, legality of object, and either a consideration or a seal. We need not here dwell to any extent on a consideration of these elements, as that belongs rather to a treatment of contracts in general.18
The relationship, however, need not be contractual. It may be purely gratuitous. In such a case, the third party with whom the agent makes the contract is not concerned with the contractual rights between principal and agent. All that concerns him is the authority with which the agent is clothed, and if that sufficiently appears, that is all that is necessary. It cannot concern him what the principal pays the agent, or whether anything.