1 McKinley v. Irvine, 13 Ala. 681.
2 Murphy v. O'shea, 2 Jones & Lat. 422; Trevelyan v. Charter, 9 Beav. 140. 3 Ibid. 4 Ibid.
5 Commercial Bank of Lake Erie v, Norton, 1 Hill, 501; Lyon v. Jerome, 26 Wend. 485; Ex parte Winsor, 3 Story, 411. See Mayer v. McLure, 36 Miss. 394.
6 Combes's Case, 9 Co. 75; Com. Dig. Attorney, C. 3; Gillis v. Bailey, 1 Fost. 149.
7 Catlin v. Bell, 4 Camp. 183; Solly v. Rathbone, 2 M. & S. 298; Cock-ran v. Irlam, 2 M. & S. 301, n.; Schmaling v. Thomlinson, 6 Taunt. 147; 1 Bell, Comm. 412, p. 388; Henderson v. Barnewall, 1 Y. & J. 387; Story on Agency, § 33, 34. But see Williams v. Woods, 16 Md. 220.
8 Laussatt v. Lippincott, 6 S. & R. 386; Coles v. Trecothick, 9 Ves. 234, 251; Shipley v. Kymer, 1 M. & S. 484; Cockran v. Irlam, 2 M. & S. 301, note, 303. See also Dorchester & Milton Bank v. New England Bank, 1 Cush. 177; Appleton Bank v. McGilvray, 4 Gray, 522; Quebec and Richmond Railroad Co. v. Quinn, 12 Moore, P. C. 233; Warren Bank v. Suffolk Bank, 10 Cush. 582; Gillis v. Bailey, 1 Foster, 149; Mason v. Joseph, 1 Smith, 406.
§ 205. The authority of an agent may be created by parol,4 and may be either expressly given, or be implied from the acts of the parties. Thus, wherever a man stands by and suffers another, knowingly, to do acts in his name, he is presumed to have given him authority to do those acts.6 As if a man suffer another to sell his property, and do not object, the sale will be valid. So, where the plaintiff loaned money to a society which had no power to borrow, and took a receipt for the same from the defendants, acting as directors of the society, it was held that by signing the receipt, the defendants had in effect represented themselves as having authority to bind the society, and were liable in damages for a breach of warranty of authority.6 So, also, where the act of the agent is exercised in so open and notorious a manner as to create a prima facie presumption of knowledge on the part of the principal, the latter will be liable. Thus, where a ship-broker advertised a ship at the Royal Exchange, and at the other usual places, as " warranted to sail with convoy," and the ship did not sail with convoy, and was captured, it was held, in an action by one of the shippers against the owner, that the latter was bound by the advertisement of the agent, although no actual authority had been given, since its publicity afforded to all a presumption that it was authorized.1 So, also, if the principal send his commodity to a place where it is the ordinary business of the person to whom it is confided, to sell, it will be presumed to be sent there for sale; as if he send his goods to an auction room, or his horse to a repository for the sale of horses.2 So, if an agent buy or sell goods for the principal, on credit, and the principal have knowledge thereof, and make no objection, he will be bound.3 So, also, an authority to act as agent in respect to a particular transaction or class of transactions will be implied from the fact that the person professing to act as agent in the particular case, has been habitually employed to do similar acts by the person whom he ostensibly represents.4 But a person who has been accustomed to perform special acts as agent, will not be impliedly clothed with authority to do other acts, or to act generally as agent.5 Thus, if a party had been employed strictly as an agent in bill transactions, he would not be authorized by implication to give a guaranty. So, where several persons, interested in an estate, offered it for sale by advertisement, in which persons desiring to purchase were informed that applications " to treat and view " were to be made to F., among other persons, it was held that though this gave F. authority to enter into negotiations, and to receive proposals on behalf of himself and associates, it gave him no authority to enter into a contract for the sale of the estate.6 So, also, where a party avails himself of acts done by a third person, an agency is implied; as where a manufacturing corporation used certain machinery, ordered by their president, and refused to produce their records, it was held, that the jury might presume a previous authority to buy, or a subsequent ratification of the purchase.1 But it does not follow, in the case of an incorporated company, that, because one of the members, acting as a director, gave instructions for the performance of certain acts, he had authority to do so from the corporate body; nor will this and the additional fact that the instructions were also given by one who usually acted as solicitor of the company, per se, prove an agency.2 Where, however, the directors of an insurance company issued a policy without the prior authorization required by the deed of settlement, and the company in discussions with the assured treated the policy as binding, it was held that the insurance was valid.3
1 Story on Agency, § 15; Wilson v. Smith, 3 How. 770.
2 Smith v. White, 5 Dana, 376.
3 See Cleaves v. Stockwell, 33 Me. 341; Cobb v. Becke, 6 Q. B. 930; Bobbins v. Fennell, 11 Q. B. 248.
4 And it is held that a parol authority to make a contract may be executed by the agent under seal. Schmertz v. Shreeve, 62 Penn. St. 457 (1869); Jones v. Horner, 60 Penn. St. 214 (1869); Baum v. Dubois, 43 Penn. St. 260 (1862).
5 Pickard v. Sears, 6 Ad. & El. 469, 474; Landon V. Proctor, 39 Vt. 78 (1866); Darnell v. Griffin, 46 Ala. 520 (1871).
6 Richardson v. Williamson, Law R. 6 Q. B. 276; Collen v. Wright, 7 El. & B. 301; 8 El. & B. 647.
1 Runquist v. Ditchell, 3 Esp. 64. 2 Pickering v. Busk, 15 East, 43.
3 Pickering v. Busk, 15 East, 38, 43; Story on Agency, § 89, 91, 94, 95; Paley on Agency, 2; Story on Agency, ch. 5, § 47 et seq.; Hoare v. Dawes, 1 Doug. 371; Coope v. Eyre, 1 H. Bl. 37; United Ins. Co. v. Scott, 1 Johns. 106; Story on Agency, § 39; 3 Kent, Comm. lect. 43, p. 40 to 50.
4 Neal v. Erving, 1 Esp. 61; Brockelbank v. Sugrue, 5 C. & P. 21; Barber v. Gingell, 3 Esp. 60; Haughton v. Ewbank, 4 Camp. 88; Town-send v. Inglis, Holt, N. P. 281; Watkins v. Vince, 2 Stark. 368; Warren v. Ocean Ins. Co., 16 Me. 439; Fisher v. Campbell, 9 Porter, 210.
5 Ibid.; post, § 213.
6 Godwin v. Brind, Law R. 5 C. P. 299 (1868).
§ 206. To this rule, however, there is one exception, which is, that whenever any act of agency is required to be done under seal, in the name of the principal, the authority to do such act must be given under seal.4 But an instrument not required to be under seal, may be binding upon the principal, although a seal be unnecessarily affixed. An authority to sign an unsealed paper may, however, be given by parol.5 And an oral authority to execute a written contract for the conveyance of land is sufficient.6 The general rule also applies to agencies created by corporations.7
1 Narragansett Bank v. Atlantic Silk Co., 3 Met. 282.
2 Moody v. London, etc, Ry. Co., 1 Best & S. 290 (1861). The distinction between a general and a special authority is presented in this case. A bailee is authorized to bind the bailor by contracts for the preservation of the property. Hunter v. Blanchard, 64 Barb. 617 (1873).
3 Prince of Wales Life Assur. Co. v. Harding, El. B. & E. 183 (1858).
4 Story on Agency, § 49, and cases cited; Co. Litt. 48 b, and note (2).
5 Paley on Agency, by Lloyd, 160, 161; Anon., 12 Mod. 564; Story on Agency, § 50; Baker v. Freeman, 35 Me. 485.
6 Hammond v. Hannin, 21 Mich. 374 (1870).
7 The old rule was, that all agencies created by corporations should be created by their corporate seal. This doctrine has undergone, however, many modifications, and the English rule at the present day seems to be, that the agent of a corporation need not be appointed under the seal of the corporation for acts which are of an ordinary nature, and do not affect the interests of the corporation. See Smith v. Birmingham Gas Co., 1 Ad. & El. 530, where Mr. Justice Taunton says, "The distinction is between ever, receives a liberal interpretation in respect of mercantile transactions; and where goods are consigned to two factors, each is considered as the agent of the other, and responsible for his acts.1 So, also, where an agency is given to partners in their partnership name, an execution of the power by one in the name of the firm will bind the principal.2
§ 207. Where there are several principals, each having an interest, either distinct from that of the others, or undivided, as in the case of tenants in common, the general rule is, that no one of them can appoint an agent for all, without the consent of all. There is, however, one exception, which obtains in cases of partnership. By the terms of such a contract, each partner becomes interested in the whole subject-matter, and is an agent for the other partners.1 So, also, the exception extends to part-owners of ships, where each of them is considered as the agent of all, in respect to the ordinary repairs and employment of the ship.2
§ 208. Where an authority is given by law to several persons, it may generally be executed by a majority of them.3 But where there are several agents appointed by the act of the principal, their authority is joint, not several, and all, therefore, must concur, in order to bind the principal.4 This rule, howmatters which do, and matters which do not affect the interests of the corporation." See also East London Water Works Co. v. Bailey, 4 Bing. 283; Beverley v. Lincoln Gas Co., 6 Ad. & El. 829; and Church v. Imperial Gas Co., 6 Ad. & El. 846; London & Birmingham Railway Co. v. Winter, Craig & Phil. 57. The latest case on the subject is The Mayor of Ludlow v. Charlton, 6 M. & W. 815. The American doctrine, however, is that stated in the text, to which the English doctrine is every day approximating, and embraces all exercises of authority, which are in any way sanctioned by the corporation itself, or by its delegated directors, in regard to the rights, duties, and interests of the corporation, which are not within the exception stated above, and required to be under seal. Bank of Columbia v. Patterson's Adm'r, 7 Cranch, 299, 306, and cases there cited; Bank of U. S. v. Dandridge, 12 Wheat. 64, 68, 75, and cases cited; Mott v. Hicks, 1 Cow. 513; Kortright v. Buffalo Bank, 20 Wend. 91; Fleckner v. Bank of U. S.f 8 Wheat. 338; 2 Kent, Comm. lect. 33, p. 291, 4th ed., and cases cited in a note. See also Story on Agency, § 53, and the learned note, containing a discussion of the English cases. See also post, Corporations.
1 Post, Contracts of Partners, § 216.
2 2 Bell, Comm. B. 7, ch. 2, § 4, 1222, 1223, p. 638, 4th ed.; Abbott on Shipping, pt. 1, ch. 3, § 2 to 9, 68, 77.
3 Ibid.; Johnston v. Bingham, 9 Watts & Serg. 56; Low v. Perkins, 10 Vt. 532; Union Bank v. Beirne, 1 Gratt. 226; Scott v. Detroit Society, 1 Dougl. (Mich.) 119; Caldwell v. Harrison, 11 Ala. 755.
4 Jewett v. Alton, 7 N. H. 253; Woolsey v. Tompkins, 23 Wend. 324; Union Bank v. Beirne, 1 Gratt. 226; Heard v. March, 12 Cush. 580; Cross v. United States, 22 Law Rep. 224; Rollins v. Phelps, 5 Minn. 463.