An agent with instructions is bound to regard them in every point; nor can he depart from them, without making himself * responsible for the consequences. (g) If he have no instructions, or indistinct or partial instructions, his duty will depend upon the intention and understanding of the parties.
This may be gathered from the circumstances of the case, and the agent paid the money he received from the underwriter in discharge of the foul loss, over to his principal, he would have rendered himself an instrument of fraud, which no agent can be obliged to do. Except in such cases as these, the maxim, respondeat superior, has been applied, and the agent held responsible to no one but his principal." Merc. Law, B. 1, c. 5, § 7.
(g) Leverick v. Meigs, 1 Cowen, 645; Marshall, C. J., Manella v. Barry, 3 Cranch, 415, 439; Kingston v. Kincaid, 1 Wash. C. C. 454; Rundle v. Moore, 3 Johns. Cas 36; Loraine v. Cartwright, especially from the general custom and usage in relation to that kind of business. (A) But he cannot defend himself by showing a conformity to usage, if he has disobeyed positive instructions.1 If loss ensue from his disregard to his instructions, he must sustain it; if profit, he cannot retain it, but it belongs to his principal.(i)
3 Wash. C. C. 151; Ferguson v. Porter, 3 Fla. 27; Sawyer v. Mayhew, 51 Me. 398; Whitney v. Merchants' Union Express, 104 Mass. 152; Robinson Machine Works v. Vorse, 52 Ia. 207; Clark v. Roberts, 26 Mich. 506; Owensboro' Bank v. Western Bank, 13 Bush, 526; Nicolai v. Lyon, 8 Oreg. 56. - "And no motive connected with the interest of the principal, however honestly entertained, or however wisely adopted, can excuse a breach of the instructions." Washington J., in Courcier v. Ritter, 4 Wash. C. C. 549, 551; but compare Forrestier v. Boardman, 1 Story, 43.
A principal discharges his agent from responsibility for deviation from his instructions, when he accepts the benefit of his act. (k)2 He may reject the transaction altogether; (l) and * if he advanced money on goods which his agent purchased in violation of his authority, he is not bound to return the goods to the agent when he repudiates the sale, but has his lien on them, and may hold them as the property of the agent (m) But he must reject the transaction at once, and decisively, as soon as fully acquainted with it. For if he delays doing this, that he may have his chance of making a profit, or if he performs acts of ownership over the property, he accepts it, and confirms the doings of the agent. (n)
The question has arisen, whether a principal is bound by the act of an agent who executes his commission in part only; as if, being directed and authorized to buy two houses, he buys one only; or to buy fifty shares of stock, he buys twenty-five; or to buy one hundred bales of cotton, he buys fifty. It has been said that the principal is bound by the partial execution of the agent's authority. (o) But it is plain that cases which present this question may differ essentially. If one is made agent to purchase a lot of woodland and a saw-mill, and purchases either alone, it would be a hardship upon the principal to be compelled to take that, when it might be nearly valueless to him without the other. But if the authority which he gave his agent to buy both, was in such a form that the seller of one, after due inquiry, was perfectly justified in believing the agent authorized to buy either separately, the principal should be held. We should say, that the principal might generally be held; but would not be, where he could show that the things embraced within the authority he gave were united in that authority, and in his intention, and that it would be a detriment to him to take a part only.
(h) Marzetti v. Williams, 1 B. & Ad. 415; Sutton v. Tatham, 10 A. & E. 27; Sykes v. Giles, 5 M. & W. 645; Kingston v. Wilson, 4 Wash. C. C. 315; Bailey v. Bensley, 87 Ill. 556. - And if the agent is employed to act in some particular business or trade he may bind his principal by following the usages of that trade, whether the principal is aware of them or not. Pollock v. Stables, 12 Q. B. 765; Bayliffe v. Butterworth, 1 Exch. 425; there Parke, B., distinguishing the case of Bartlett v. Pentland, 10 B. & C. 760, said: " That however is a different question from the present, which is one of contract. In the case of a contract which a person orders another to make for him, he is bound by that contract if it is made in the usual way "
(i) Catlin v. Bell, 4 Camp. 184; Park-ist v. Alexander, 1 Johns. Ch. 394; Segar v. Edwards, 11 Leigh, 213
(k) Clarke v. Perrier, 2 Freem. 48; Prince v. Clark, 1 B. & C. 186.
(/) Roe v. Prideaux, 10 East, 158.- If, however, an agent has done more than he was authorized to do, the execution, though void as to the excess, may be held good for the rest, at least in equity. But it is necessary in such a case that the boundaries between the excess and the execution of the power should be clearly distinguishable. Sir Thomas Clarke, V. C, Alexander v. Alexander, 2 Ves. Sen. 644; Campbell v. Leach. Ambl. 740; Vanada v. Hopkins, 1 J. J. Marsh. 285, 294; Sug-den on Powers, ch. 9, § 8. - And in some cases it has been hold at law that an agent transcending his authority in part binds his principal for the part which was performed in accordance with the authority. Gordon v. Buchanan, 5 Yerg. 71; Johnson v. Blasdale, 1 Sm. & M. 17. - See Wintle v. Crowther, 1 Cr. & J. 316.
(m) Lord Hardwicke, Cornwall v. Wilson, 1 Ves. Sen. 510; Lord Eldon, Kemp v. Pryor, 7 Ves. 240, 247.
(n) Prince v. Clark, 1 B. & C. 186; Cornwall v. Wilson, 1 Ves. Sen. 509; Marsh v. Whitmore, 21 Wall. 178; Eastern Bank v. Taylor, 41 Ala. 72; Bassett v. Brown, 105 Mass. 551.
1 Osborne v. Rider, 62 Wis. 235. See also Greenstine v. Borchard, 50 Mich. 434; Sheffield v; Linn, 62 Mich. 151.
2 Or otherwise ratifies it, Bray v. Gunn, 53 Ga. 144.
Some conflict appears to exist as to the right of an agent to delegate his authority. On the one hand, the general principle, that delegatus non potest delegare, is certain. (p) An agent can * do for his principal only that which his principal authorizes; and if the principal appoint an agent to act for him as his representative in any particular business, this agent has not thereby a right to make another person the representative of his principal. The employment and trust are personal; they may rest on some ground of personal preference and confidence, and on the knowledge which the principal has of his agent's ability, and the belief he has of his integrity. But if the agent merely by virtue of his agency may substitute one person in his stead, he may another, or any other, and thus compel the principal to be represented by one whom he does not know, or be