6 Howard v. Sheward, Law R. 2 C. P. 148 (1866); Brady v. Todd, 9 C. B. (n. s.) 592, holding it otherwise in case the principal is not a dealer.
7 See post, Construction of Contracts.
8 Wiltshire v. Sims, 1 Camp. 258; Paterson v. Tash, 2 Str. 1178; Guerreiro v. Peile, 3 B. & Al. 616.
9 Attwood v. Munnings, 7 B. & C. 278, 283, 284; Ducarrey v. Gill, an authority to grant a license to a person to enter and cut timber on the land, though done bond fide, with a view of inducing him to buy.1 And a power to sell personal property does not necessarily confer a power to sign the principal's name to a contract of sale, so as to bind him under the statute of frauds.2 So, also, an authority to sell on credit does not include an authority to collect the price.3
§ 218. So, also, an authority conferred by any written instrument is always restricted to those acts which are obviously incidental and occasional to the particular subject-matter to which they refer.4 Thus, where a person was authorized to superintend a farm, he was held to possess no power to sell it, or the things belonging to it.5 But, if the language of an instrument be susceptible of different interpretations, and the agent be in fact misled, and adopt that one which was not intended by the principal, the principal will, nevertheless, be bound. For he who occasions the mistake should suffer the injury.6 Indeed, wherever an express authority is conferred by informal instruments, such as letters of advice, or instructions which are general in their terms, and convey a general authority, the rule of construction is more liberal than that applicable to formal and deliberate instruments.7
§ 219. Again, a promise of indemnity to an agent for the performance of all the acts ordered by his principal, is implied from the relation of the parties; and even when he commits a trespass, he has a claim for reimbursement of all damages he thereby sustains, provided he act bond fide, without suspicion of wrong, and in pursuance of orders.1 The principal is under an implied obligation to indemnify an innocent agent for obeying his orders, when the act would have been lawful in respect to both, if the principal had the authority which he claimed.2
Mood. & Malk. 450; Withington v. Herring, 5 Bing. 442; Story on Agency, § 62, 67; Rossiter v. Rossiter, 8 Wend. 494; Hogg v. Snaith, 1 Taunt. 847; Murray v. East Ind. Co., 5 B. & Al. 204, 210, 211; Hay v. Goldsmidt, 1 Taunt. 349; Bott v. McCoy, 20 Ala. 578.
1 De Bouchout v. Goldsmid, 5 Ves. 211.
2 Coleman v. Garrigues, 18 Barb. 60.
3 Seiple v. Irwin, 30 Penn. St. 513 (1858).
4 Hubbard v. Elmer, 7 Wend. 446; Story on Agency, § 69; Kilgour v. Finlyson, 1 H. Bl. 155.
5 Story on Agency, § 71, 78, and cases cited; Cod. Lib. 2, tit. 13, 1. 16; Pothier, Pand. Lib. 3, tit. 3, n. 4; Guerreiro v. Peile, 3 B. & Al. 616; Paterson v. Tash, 2 Str. 1178; Wiltshire v. Sims, 1 Camp. 258.
6 See Loraine v. Cartwright, 3 Wash. C. C. 151; Courcier v. Ritter, 4 Wash. C. C. 551; De Tastett v. Crousillat, 2 Wash. C. C. 132; 1 Liverm. on Agency, 403; Story on Agency, § 79; Pickett v. Pearsons, 17 Vt. 470.
7 Story on Agency, § 82.
§ 220. We have seen that an agency may be created by implication and presumption from circumstances, or from the acts of the parties; and where this is the case, the implied agency will be restricted to the purposes for which it was obviously created, and is limited by the general usage, course, and scope of the business for which it was created. If it arise by implication from numerous acts, done by the agent with the tacit assent of the principal, it must be limited to acts of a similar nature. If it be an implied authority to do a particular act, the agency must be limited to the appropriate means of accomplishing that act only.3 An authority is, however, to be inferred often from the nature of the business of the agent; as, if one send goods to an auction-room, or to a broker's, an implied authority to sell arises, because it is not to be supposed that they were sent there for any other purpose.4 But, where such a presumption does not naturally grow out of the circumstances of the case, no such agency will be implied. Thus, if a person send his watch to a watchmaker, to be repaired, and the watchmaker sell it, inasmuch as possession of the watch does not necessarily imply either ownership or a power to sell it, the owner would not be bound by such a sale.5
§ 221. There is, however, one modification of this rule, which obtains in cases where the agency is enlarged by the necessity of the case. Whenever, therefore, extraordinary emergencies arise, requiring the agent to overstep the limits of his authority, in order to attain the object contemplated by the agency, he will be justified in assuming extraordinary powers, in consideration of the necessities of the case. Thus, although a factor be required by his orders to sell at a particular price, yet, if the goods be of a perishable nature, so that the sale is indispensable to prevent a greater loss, he will be justified in selling them. So, also, the master of a ship is, in times of necessity, invested with an added authority, exceeding his ordinary power, in respect to the ship and cargo; and in cases of great emergency, may sell them, or hypothecate the ship.1 So, also, a supercargo is not bound to observe the exact terms of his instructions, if the interests of the owner would be thereby sacrificed, or the objects of the voyage frustrated.2 The same principle applies also to cases where the agency is primarily created by necessity; as where a mere stranger, under circumstances of necessity, makes himself agent for the purpose of saving property from injury or destruction. So, also, salvors may dispose of the property saved by them, in behalf of the parties in interest, if it be of such a nature that it cannot be kept without injury.3 So, also, if goods be exported, and the vendee, upon their arrival, refuse to receive them, and it would not comport with the interest of the vendor to have them returned, the vendee may sell them for the benefit of the vendor, and hold him liable, in an action for damages, to the amount of the difference, giving him the benefit of a sale in the foreign market.4 But an agent employed in driving stock has no power to dispose of it on the ground that it has become foot-sore and unable to travel.5
1 Gower v. Emery, 18 Me. 79. See post, § 261.
2 Howe v. Buffalo, N. Y., etc., Railroad Co., 37 N. Y. 297 (1867).
3 Odiorne v. Maxcy, 13 Mass. 178; Salem Bank v. Gloucester Bank, 17 Mass. 1.; Story on Agency, § 87; 1 Liverm. on Agency, 36 to 40; Paley on Agency, by Lloyd, 161, 162, 3d ed.
4 Saltus v. Everett, 20 Wend. 267; Pickering v. Busk, 15 East, 38; 2 Kent, Comm. lect. 41, p. 622.
5 Pickering v. Busk, 15 East, 38.
1 Hawtayne v. Bourne, 7 M. & W. 599; 2 Kent, Comm. lect. 41, p. 614, 3d ed.; Forrestier v. Bordman, 1 Story, 43; 3 Chitty on Com. and Manuf. 218; 1 Comyn on Cont. 236; The Gratitudine, 3 Rob. Adm. 255 to 258. See post, as to the authority of masters of vessels.
2 Forrestier v. Bordman, 1 Story, 43.
3 Story on Agency, § 142; Story on Bailments, § 83, 189; Paley on Agency, by Lloyd, 28, 29, 30, and note m; Kemp v. Pryor, 7 Ves. 240; Cornwal v. Wilson, 1 Ves. 509, by Lord Hardwicke.
4 Kemp v. Pryor, 7 Ves. 240, 241, 242, 247, by Lord Eldon; Story on Agency, § 143; Cornwal v. Wilson, 1 Ves. 509, by Lord Hardwicke.
5 Reitz v. Martin, 12 Ind. 306 (1859).