3 Smith v. McGuire, 3 H. & N. 554 (1858); Hurlburt v. Kneeland, 32 Vt. 316 (1859).
4 Iowa v. Haskell, 20 Iowa, 276 (1866); McCurdy v. Rogers, 21 Wis. 197 (1866).
5 White v. Langdon, 30 Vt. 599 (1858); Pursley v. Morrison, 7 Ind. 356 (1855); Whiting v. Western Stage Co., 20 Iowa, 554 (1866).
6 Story on Agency, § 126 et seq., and cases cited; 2 Kent, Comm. lect. 41, p. 620, 621; Paley on Agency, by Lloyd, 198, 199 to 208; Fenn v. Harrison, 3 T. R. 757; Pickering v. Busk. 15 East, 45; Helyear v. Hawke, 5 Esp. 72, 75; Jeffrey v. Bigelow, 13 Wend. 518; Schimmelpennich v. Bayard, 1 Peters, 264; Withington v. Herring, 5 Bing. 442. So, also, see 1 Pothier on Oblig., Evans, 79, n.; ib. 447, 448, n.; Planters' Bank v. Cameron, 3 Sm. & M. 609; Linsley v. Lovely, 26 Vt. 123 (1853); Butler v. Maples, 9 Wall. 766 (1869). And the authority of a general agent even is restricted to the range of his employment, and the acts and representations which a prudent and ordinarily sagacious and experienced person might expect him to do, or to be authorized to make, on behalf of his principal. Farmers' M. F. Ins. Co. v. Marshall, 29 Vt. 23 (1856), per Red-field, C. J. This case contains an interesting consideration of the extent of the authority of a general agent to procure applications for an insurance company.
1 Fenn v. Harrison, 3 T. R. 757, 762; s. c. 4 T. R. i77, per Ashhurst, J. See also, on this subject, Croom v. Swann, 1 Florida, 211; Bradford v. Bush, 10 Ala. 386; Nelson v. Cowing, 6 Hill, 336; Hunter v. Jameson, 6 Ired. 252; Coleman v. Riches, 16 C. B. 104; 29 Eng. Law & Eq. 326.
2 Pickering v. Busk, 15 East, 45. See also 2 Kent, Comm. 621, lect. 41; Story on Agency, § 132; Fenn v. Harrison, 3 T. R. 760; Helyear v. Hawke, 5 Esp. 72; Taggart v. Stanbery, 2 McLean, 543.
3 Brown v. Johnson, 12 Sm. & M. 398. See also Mayor, etc, of Little Rock v. State Bank, 3 Eng. 227.
4 Gibson v. Colt, 7 Johns. 390. See also Nixon v. Hyserott, 5 Johns. 58. vol. i. 14 lands, it was held, that his warranty was binding on the principal, a conveyance with warranty being the ordinary form in the country.1 But an agent with express authority to sell an article not usually sold with a warranty, as bank stock, for instance, has no implied authority to warrant.2
§ 214. So, also, the representations, declarations, admissions, and even concealments of an agent, constituting a part of the res gestae, and being the inducement to the contract, and made at the same time, are binding upon the principal.3 But if they be made at another time, and do not form a part of the res gestae, the principal will not be bound.4 For the agent can only bind the principal by such statements or concealments in reference to the subject-matter of the contract, as he makes, or is understood to make, in his character of agent.6 Thus, the representations made by an agent at the authorized sale of a horse, in regard to the soundness of the horse, will be binding upon the principal; but his representations upon the same subject, at a different time, would not be binding, because they could not be presumed to be made by him as agent.1 So, also, if the agent should give a warranty, contrary to his instructions, the principal would be bound, if the agency were general.2 So, also, an agent employed for a special object, may use the ordinary means for accomplishing it, and if he make false representations, in the due course of such transaction, the principal is bound by them.8 And any fraud or misrepresentation, which would bind the principal, if he made it himself, will equally bind him, if made by his agent within the scope of his authority,4 and in the course of his business.
1 Taggart v. Stanbery, 2 McLean, 543. See Peters v. Farnsworth, 15 Vt. 155; North River Bank v. Rogers, 22 Wend. 649.
2 Smith v. Tracy, 36 N. Y. 79 (1867), explaining Bennett v. Judson, 21 N. Y. 238, and Condit v. Baldwin, 21 N. Y. 219. A general agent to sell may bind his principals by a warranty. Milburn v. Belloni, 34 Barb. 607.
3 Story on Agency, § 135 et seq., and cases cited; Peto v. Hague, 5 Esp. 135; Fairlie v. Hastings, 10 Ves. 126, 127; Garth v. Howard, 8 Bing. 451; Hannay v. Stewart, 6 Watts, 489; Helyear v. Hawke, 5 Esp. 72; Marsh, on Ins., B. 1, ch. 11, § 1, p. 466; Fillis v. Brutton, ib. 465; Stewart v. Dun-lop, 4 Bro. P. C. 483; Willes v. Glover, 1 Bos. & Pul. N. R. 14; Doggett v. Emerson, 3 Story, 700. Declarations of an agent in the scope of his employment, and his knowledge of facts and circumstances affecting it, bind his principals. Willard v. Buckingham, 36 Conn. 395 (1870).
4 Helyear v. Hawke, 5 Esp. 72; Cornfoot v. Fowke, 6 M. & W. 358; Tillotson v. McCrillis, 11 Vt. 477; Corbin v. Adams, 6 Cush. 93; Royal v. Sprinkle, 1 Jones (N. C), 505; Byers v. Fowler, 14 Ark. 87; Robinson v. Fitchburg Railroad, 7 Gray, 92; Luby v. Hudson River Railroad, 17 N. Y. 131; Saunders v. McCarthy, 8 Allen, 42. But see Graham v. Schmidt, 1 Sandf. 74.
5 Garth v. Howard, 8 Bing. 451; Helyear v. Hawke, 5 Esq. 72, 73; Langhorn v. Allnutt, 4 Taunt. 511; Betham v. Benson, Gow, 45; Fairlie v. Hastings, 10 Ves. 123; Paley on Agency, by Lloyd, 257, 268, 269; Maesters v. Abraham, 1 Esp. 375; Hannay v. Stewart, 6 Watts, 489; Story on Agency, § 137; Doggett v. Emerson, 3 Story, 700.
§ 215. But fraudulent acts of the agent beyond the scope of his authority, and especially if they be in contravention of his duty and against the rights of his principal, will not be binding upon the principal. Where, therefore, the agent of a wharfinger, whose duty it was to give receipts for goods actually received at the wharf, fraudulently gave a receipt for goods which had not been received, the principal was held not to be responsible.5 So, also, the representations of a professed agent, although they should form a part of the res gestce, would not be available to prove the fact of his agency or the extent of his authority, if questioned by his principal, however publicly such declarations should be made.6