1 Wolff v. Horncastle, 1 Bos. & Pul. 323; Lucena v. Craufurd, 3 Bos. & Pul. 98; De Vignier v. Swanson, 1 Bos. & Pul. 346, n.; Bell v. Gilson,
1 Bos. & Pul. 343; Marsh, on Ins. B. 1, ch. 8, p. 311, 312, 2d ed.
2 Dow v. Worthen, 37 Vt. 108 (1864).
3 Story on Agency, 161, 162, and cases cited; Paley on Agency, by Lloyd, 207, 208; 1 Bell, Comm. 385, 386, § 408, 409, 410, 4th ed.; 2 Kent, Comm. lect. 41; Atkyns v. Amber, 2 Esp. 493; Snee v. Prescot, 1 Atk. 248; Morris v. Cleasby, 4 M. & S. 566; Paley on Agency, by Lloyd, ch. 2, § 2, p. 1ll, note 3; ib. ch. 4, § 1, p. 324; Edwards v. Golding, 20 Vt. 38; Squires v. Barber, 37 Vt. 558 (1865). If the consignee of goods, at the time he received them, acted only as agent of a third party, and the carrier must have known the fact, the consignee is not personally liable for the freight, though he does not notify the carrier that he has acted as agent. Boston & Maine R. Co. v. Whitcher, 1 Allen, 497; Dart v. Ensign, 49 N. Y. 619 (1872). See Amos v. Temberley, 8 M. & W. 798; Sanders v. Van Zeller, 4 Q. B. 260.
§ 227. Ordinarily, an agent contracting on behalf of the government, or of the public, is not personally bound by such contract, because it is not to be presumed either that a public agent intends to bind himself personally, or that a party contracting with him, in his public character, means to rely upon his individual responsibility.1 And therefore a quartermaster of the army is not personally responsible for the payment of services of a clerk employed by him in government work alone.2
1 Abbott on Shipping, pt. 2, ch. 3, § 1, 2, 3 (ed. 1829); James v. Bixby,
11 Mass. 36; Ingersoll v. Van Bokkelin, 7 Cow. 670.
2 Abbott on Shipping, pt. 2, ch. 2, § 1 to 8; 3 Kent, Comm. lect. 46, p. 161, 162, 163, 3d ed.; 1 Bell, Comm. § 446-466, 4th ed.
3 Abbott on Shipping, pt. 2, ch. 2, § 5; Blood v. Goodrich, 9 Wend. 68; 1 Liverm. on Agency, ch. 2, § 3, p. 35, 36; 3 Kent, Comm. lect. 46, p. 162, 163, 3d ed.; Gardner v. Lachlan, 8 Sim. 126, 128; Meyer v. Barker, 6 Binn. 234; Schack v. Anthony, 1 M. & S. 573.
4 Hopkins v. Lacouture, 4 La. 64; Mechanics1 Bank v. Bank of Columbia, 5 Wheat. 326; Higgins v. Senior, 8 M. & W. 834; Beebee v. Robert,
12 Wend. 413. " The suppression of the principal's name is entirely consistent with the practice of many trades, to conceal transactions of speculation. The effect is that if the broker enters into contracts in his own name, and has a principal, those whom he contracts with will have the responsibility both of the principal and of the broker." Per Bovill, C. J., in Calder v. Dobell, Law R. 6 C. P. 486 (1871). See Thomson v. Davenport, 9 B. & C. 78; Addison v. Gandassequi, 4 Taunt. 574; Paterson v. Gandasequi, 15 East, 62; Mortimer v. McCallan, 6 M. & W. 58. And where the dealer has no knowledge of the existence of a principal, and there is nothing to put him on inquiry, he may set off a debt due from the agent in an action by the principal. Squires v. Barber, 37 Vt. 558 (1865).
5 Clark's Executors v. Van Riemsdyk, 9 Cranch, 153; Van Reimsdyk v Kane, 1 Gall. 630; Story on Agency, § 162.
§ 228. But if a contract expressly state the agency of the party on the face of it, he will not incur any personal liability thereupon, unless he acted without authority. Nor is it necessary that there should be an express declaration of agency in the contract, if it clearly appear from the general context of the instrument, that he is dealing as agent, and does not intend to assume personal responsibility thereon.3 Thus, where Richard Mitchell signed a note of hand, promising to pay a sum of money " for John Clarke, Richard Mitchell, Joseph Phillips, and Thomas Smith," and it appeared that he was the agent of Clarke, Phillips, and Smith, it was held that he could not be sued alone upon the note, but that all the four persons should have been made parties.4 So, also, where an auctioneer, in the sale of an estate, made the following memorandum, " I, E. Driver, as agent for the vendor, hereby agree to sell to the above-named R. H. Gaby, etc," it was held, in an action brought against the auctioneer, on account of the default of the vendor to deliver an abstract of title, that the agent was not personally liable.5 So, also, although the written contract contain no expression of agency, yet if the letters or papers previous to the contract clearly indicate that the party is contracting as agent, and assumes no personal liability, he will only be liable as agent.6
§ 229. Where an authority is coupled with an interest in the property itself, it will bind the principal although it be executed in the name of the agent.1 Thus, where a factor has the legal title to property, subject to the equitable title of the owner, and where he is authorized to sell in his own name, he may so sell it, and pass the legal title.2 The same rule applies to cases where there is an authority coupled with an interest in mortgages, and other conveyances of real and personal property to the grantee, and the grantee is authorized to sell under certain circumstances.3
1 Perrin v. Lyman, 32 Ind. 16 (1869), Gregory, J.; Hodgson v. Dexter, 1 Cranch, 345; Nichols v. Moody, 22 Barb. 611; Belknap v. Reinhart, 2 Wend. 375. 2 Perrin v. Lyman, supra.
3 Downman v. Jones, 14 Law J. (n. s.) Q. B. 228; 7 Q.B. 103; Amos v. Temperley, 8 M. & W. 798; Ex parte Buckley, 14 M. & W. 469; Gaby v. Driver, 2 Y. & J. 555; Spittle v. Lavender, 5 Moore, 270; Owen v. Gooch, 2 Esp. 567.
4 Ex parte Buckley, 14 M. & W. 469. See Aspinwall v. Torrance, 1 Lans. 381 (1870).
5 Gaby v. Driver, 2 Y. & J. 555. See also Spittle v. Lavender, 5 Moore, 270.
6 Downman v. Jones, 14 Law J. (n. s.) Q. B. 228; 4Q.B. 235, n.
§ 230. Having already considered the form which is necessary in the execution of an authority, we next come to the consideration of the actual execution of it. The general rule is, that no act or contract by an agent, however proper in form, is binding upon his principal, unless it be within the limits of his authority.4 He is, therefore, bound to observe the exact instructions of his principal; and if his act or contract vary materially therefrom, in nature, extent, or degree, it will not be binding upon the principal, whether the variation be beneficial or not; for the question is, whether the agent has done his duty strictly, and not whether he has acted with good motives. If, therefore, an agent, who is authorized to do an act conditionally, do it absolutely, the principal will not be bound. So. also, if he be commissioned to buy an entire thing, and he buy a part of it only, the purchase will not be binding on him; or if, by mistake, he orders a greater quantity than the principal directed.5 But a trifling variation from the terms of his agency will not absolve the principal from liability.6
1 Hunt v. Rousmaniere, 2 Mason, 244; 3 Mason, 294; 8 Wheat. 174; 1 Peters, 1.
2 Coates v. Lewes, 1 Camp. 444; Baring v. Corrie, 2 B. & Al. 137; Martini v. Coles, 1 M. & S. 140, 147; Pickering v. Busk, 15 East, 38; Story on Agency, § 164.
3 Hunt v. Rousmaniere, 2 Mason, 244; 3 Mason, 294; 8 Wheat. 174; 1 Peters, 1.
4 Upton v. Suffolk Co. Mills, 11 Cush. 586; Clark v. Lillie, 39 Vt. 405 (1867).
5 Henkel v. Pape, Law R. 6 Exch. 7 (1870). The defendant in this case wrote a telegraphic order for three rifles from the plaintiff. The operator mistook the word "three" for "the," and the plaintiff, relying upon a previous communication, sent fifty rifles. Defendant declined to pay for more than three; and the court sustained him.
6 Story on Agency, § 165, 170, 175, 176, 192; Ure v. Currell, 4 March
§ 231. If the agent exceed his authority, by doing something cumulative and additional to the complete execution of his power, the principal will be liable for all, except such unauthorized excess. But where the power is imperfectly executed, and the rightfully executed part cannot be separated from the excess, the principal is absolved from all liability.1 Thus, if an agent were empowered to procure insurance upon a ship for two thousand dollars, and he should procure a policy for two thousand dollars on the ship, and two thousand dollars additional on the cargo, the principal would be bound by the policy on the ship, and not by the policy on the cargo; unless under special circumstances.2 But, if an agent, being authorized to sign a note for six months, should sign it for sixty days, it would be utterly void against the principal.3 So, where an agent is authorized to buy a certain quantity of goods, he will not be bound to purchase the exact quantity, if it be divisible, or if the quantity do not go to the essence of the contract. Thus, if an agent, being authorized to buy a hundred bushels of corn, at a certain price, should buy two hundred, the principal would be liable for the one hundred. So, also, if in such case the agent should buy only fifty, being unable to procure more at the price at which he was limited, the principal would be bound thereby, unless the exact quantity were of the essence tin (n. s.), 502; Manella v. Barry, 3 Cranch, 415; Co. Litt. 258 b; Paley on Agency, by Lloyd, 29; Howard v. Baillie, 2 H. Bl. 623; 2 Kent, Comm. lect. 41, p. 618. See Ireland v. Livingston, Law R. 2 Q. B. 99 (1866); Johnston v. Kershaw, Law R. 2 Exch. 82 (1867). If it be generally known that an agent's authority in a particular kind of transaction is almost always limited, he cannot bind him with whom he contracts, in favor of his principal, in excess of his actual authority. Baines v. Ewing, Law R. 1 Exch. 320 (1866), criticising Story, Agency, § 131, 4th ed.
1 Story on Agency, § 166; 1 Story, Eq. Jur. § 96, 177, and note; Sug-den on Powers, 3d ed. ch. 5, per tot. and especially § 8; Harg. note to Co. Litt. 258 a; Bright v. Boyd, 1 Story, 487; Zouch v. Woolston, 2 Burr. 1146; Alexander v. Alexander, 2 Ves. 644; Com. Dig. Attorney, C. 15; 1 Liverm. on Agency, ch. 5, § 1, p. 101, 102; Campbell v. Leach, Ambl. 740; Jenkins v. Kemishe, Hard. 395; Roe v. Prideaux, 10 East, 158; Dig. Lib. 17, tit. 1, 1. 33. See Reid v. Dreaper, 6 H.& N. 813 (1861).
2 1 Liverm. on Agency, ch. 5, § 1, p. 101, 102; Story on Agency, § 169, 170.
3 Batty v. Carswell, 2 Johns. 48. vol. I. 15 of the contract. But, if the authority were to purchase the fee of a certain estate, and the agent should purchase a part of it, or a life-interest in it, the principal would not be bound; because the entirety, or the nature of the estate, would form an essential consideration of the purchase.1