§ 209. In the next place, as to the extent of the agent's authority. The authority of the agent to bind his principal grows out of the power with which he is expressly or impliedly invested. If his actual power be exceeded, the principal will not be bound, unless he have made him ostensibly his agent, by so treating with him as to create a presumption of authorized agency, or unless he have held out the agent as possessed of general authority to act in his behalf. If, therefore, one person undertake to act as agent for another, in respect to matters in which he is not authorized, the person whom he professes to represent will be bound, as to third persons, only so far as he has expressly or impliedly held such person out to the public as agent, or ratified his agency.3 Thus, if A. have been in the habit of employing B. to do a certain act, or class of acts, and have always consented thereto, and in a special case he do not authorize him, A. will nevertheless be bound, if B. only do what he has been accustomed to do.4 As, for instance, if B. have repeatedly signed A.'s name to policies of insurance, or have accepted bills for him, a signing of a policy, or an acceptance of a bill by B. in a particular case where he is not authorized, or is expressly forbidden, will bind A., because A. has invested B. with an ostensible and prima facie authority.5
1 Story on Agency, § 42, and cases cited.
2 Gordon v. Buchanan, 5 Yerg. 71.
3 Farmers', M. F. Ins. Co. v. Marshall, 29 Vt. 23 (1856). See Rutland & B. R. R. Co. v. Lincoln, ib. 206.
4 Watkins v. Vince, 2 Stark. 368; Neal v. Erving, 1 Esp. 61; Brockel-bank v. Sugrue, 5 C. & P. 21; Barber v. Gingell, 3 Esp. 60; Haughton v. Ewbank, 4 Camp. 88; Townsend v. Inglis, Holt, N. P. 281; Prescott v. Flinn, 9 Bing. 19; s. c. 2 Moo. & S. 18.
5 Neal v. Erving, 1 Esp. 61; Watkins v. Vince, 2 Stark. 368.
But if B. should undertake to do other and different acts, A. would not be bound. So, also, where a servant makes a contract for his master, the master will be bound, if he have permitted the servant previously and habitually to make contracts of a similar character. Thus, if he have authorized the servant to purchase on credit in former cases, and the servant purchase on credit in a particular case, when he is supplied with cash, and ordered to pay, the master will be bound.1 But if the servant had never been authorized to purchase on credit, and he should purchase on credit in a particular case, in violation of his instructions, the master would not be bound.2 Nor is a clerk, who is authorized to obtain orders for goods, authorized to receive payment for them without special authority.3 Nor does an authority to sell goods imply an authority to exchange them.4 Again, the same rule holds where one person places another in a position or office from which an authority to make certain contracts in his behalf would be presumed,- as if A. make B. his foreman, and intrust him with the general management of the business, a contract by B., within the apparent bounds of his authority, would bind A.5 So, also, the contracts of a surveyor of a public road, known to be in the employ of the commissioners of public highways, will bind his principals.6 But if the party trusting a person professing to act as agent do not exercise due caution, and trust the agent negligently, the principal will not be bound. Thus, where the plaintiff contracted to supply the defendant with meat at "5 1/2d. per pound, ready money," and the defendant's cook was in the habit of ordering meat, and paying for it as soon as it amounted to a few shillings or a guinea (the defendant giving her the money for such purpose), and after some time, a new cook in the defendant's employ suffered the bills to run on, until they amounted to £33 3s. 3d., and then ran away, the defendant having all the while paid her in the customary manner, it was held that the plaintiff could not recover the amount from the defendant.1 In all these cases, the question is, whether the principal has clothed the agent with apparent authority, and this is a question of fact to be determined by a careful consideration of the circumstances of each particular case.2
1 Sir R. Wayland's Case, 3 Salk. 233; s. c. 1 Ld. Raym. 225; Hazard v. Treadwell, 1 Str. 506; 1 Shower, 95, per Holt, C. J.; Nickson v. Bro-han, 10 Mod. 109. 2 Ibid.
3 Puttock v. Warr, 3 H. & N. 979 (1858).
4 Trudo v. Anderson, 10 Mich. 357 (1862).
5 Hazard v. Treadwell, 1 Str. 506; Sir R. Wayland's Case, 3 Salk. 233.
6 Pochin v. Pawley, 1 W. Bl. 670.
§ 210. In all cases where an authority is implied from previous acts of a similar kind having been done by the agent, it must be clearly shown that the principal had either expressly authorized the doing of such acts beforehand, or had knowledge of and sanctioned them after they were done; for if he never authorized the agent to act for him, and was ignorant of his having done so, he will not be bound.3 In determining whether a servant was authorized to purchase on credit, in a case where he is supplied with cash, it becomes important to consider, whether the money was given before or after the purchase; for if it were given before the purchase, he would not have been authorized to purchase on credit.4
1 Stubbing v. Heintz, Peake, 47. "The contract," said Lord Kenyon, "was to deal for ready money, and the plaintiff, when he let the bill run on to such an amount as the sum now claimed, was giving credit to the servant, and not to the defendant."
2 Pickering v. Busk, 15 East, 43. The general doctrine is thus stated by Monahan, C. J., in Page v. Great Northern Ry. Co., Irish R. 2 C. L. 228, 233(1868): "When an agent is entrusted with certain duties, the public have a right to act on the supposition that he is not violating his duty when doing any act naturally within the scope of his duty, and that the principal will be bound by such an act, though it be contrary to his instructions; the person dealing with the agent not knowing that he is disobeying his orders." See also Anderson v. Chester & Holyhead Ry. Co., 4 Irish C. L. 435 (1854); Riley v. Packington, Law R. 2 C. P. 536 (1867); Maddick v. Marshall, 16 C. B. (n. s.) 387; in error, 17 C. B. (n. s.) 829, holding that where the directors of a company have passed a resolution authorizing their agent to incur an expense, this is evidence from which the jury may infer an authority to contract, regardless of private instructions.