(e) See Fenn v. Harrison, 3 T. R. 757; 4T.E. 177.
Authority to collect a note, has none to take a sealed note for the amount, and there will be no merger of the original debt: McCulloch v. McKee, 16 Pa. St. 289. So, if a shopman authorized to receive money over the counter only receives it elsewhere than in the shop, the payment is not good : Kaye v. Brett,
5 Exch. 273. Other instances of the application of this familiar rule may be found in Andrews v. Kneeland, 6 Cow. 354; Thompson v. Stewart, 3 Conn. 171; Snow v. Perry, 9 Pick. 542; Lobdell v. Baker, 1 Mete. 201; Huntington v. Wilder, 6 Vt. 234; Brown v. Billings, 22 lb. 98; Gordon v. Buchanan, 5 Yerg. 71; Bank of Hamburg v. Johnson, 3 Rich. 42; Carter v. Taylor, 6 Sm.
6 M. 367; Shriver v. Stevens, 12 Pa. St. 258; Scott v. McGrath, 7 Barb. 53; Paige v. Stone, 10 Mete. 160.-R.
Taylor v. Labeaume, 14 Mo. 572; Nash v. Drew, 5 Cush. 422; The Methuen Co. v. Hayes, 33 Me. 169; Bailey v Rawley, 1 Swan, 295; Kirk v. Hiatt, 2 Ind. 322; Towle v. Leavitt, 23 N. H. 360; Huber v. Zimmerman, 21 Ala. 488. An agent employed to buy and sell has no authority to bind his principal by a negotiable note given for notes bought: Temple v. Pomroy, 4 Gray, 128.-s.
1 A factor is a general, not a special agent, entrusted with the possession disposal, and apparent ownership of property; and having a general power to sell, he may do so for cash or on credit, and receive in payment notes or any kind of property. Notwithstanding this general authority, it was, however, held in England, in the case of Paterson v. Tash, 2 Str. 1178, that "a factor cannot bind or affect the property of the goods by pledging them as a security for his own debt, though there may be the formality of a bill of parcels and a receipt," and this decision has been followed, though with occasional reluctance, by numerous cases: Daubigny v. Duval, 5 T. R. 604; Martini v. Coles, 1 M. & S. 140, 493; Graham v. Dyster, 6 lb. 1, 14; Queiroz v. Trueman, 3 B. & C. (10 E. C. L. R.) 342; Fielding v. Kymer, 2 Brod. & Bing. (6 E. C. L. R.) 639. 8uch is recognized as the rule on this side of the Atlantic, unless where it has been altered by statute: Van Amringe v. Peabody, 1 Mas. 440; Kinder v. Shaw, eral authority to sell, but received directions on each occasion. It was held that they might bind their principal by a re-sale of a particular parcel of sugar before purchased and paid for in their own names and lodged in their own warehouse, *though such re-sale was for a price less than they were directed by their principals to sell for; for the Court considered that the general authority of the broker to sell being, in respect of those who did not know their private instructions, to be collected from their general dealing, was not limited by such private instructions. So, where the real principal in a business holds out an agent as the ostensible principal, and carries it on under his management and in his name, he is bound by all such acts and contracts as are incidental to the ordinary conduct of the business, and this obligation cannot be restricted by any private arrangement between them (g). On the other hand, the following case illustrates the rule as to the particular agent. The defendant, being about to purchase a mare, wrote to the plaintiff, "I will take the mare at twenty guineas, of course warranted;" and subsequently wrote again, "My son will be at the World's End (a public-house) on Monday, when he will take the mare and pay you: send anybody with receipt and money shall be paid, only say in the receipt sound and quiet in harness." The plaintiff wrote in reply, "She is warranted sound, and quiet in double harness;" and the mare, having been brought to the World's End on Monday, was taken away by the defendant's son without paying the price, and without a receipt or *warranty. The defendant kept her two days, and then returned her as being unsound. The writings between the parties not amounting to a complete contract, it was sought to show that the defendant was bound by the conduct of his son, as amounting to an acceptance in law. But it wall clearly be perceived that the son was a particular agent, in which case his principal is not bound by what he does if he exceeds his authority. "The son," said Parke, B., "had only a limited authority; and if a party contracts with another through his agent, he can only take such rights as the agent can give: and this is no hardship on the plaintiff, because he was distinctly informed that the son was authorized to receive the mare if a warranty were given that she was quiet in harness." This was not given, and, therefore, the son had no authority to accept the mare, and the defendant was not bound by the son's act (h).
*The case of Whitehead v. Tuckett (f) is a very good illustration of the rule, that, although the express instructions are exceeded, yet, if what he does is within the usual scope of the business he is deputed to transact, the agent binds his principal by so doing. There, Sill & Co., who were brokers at Liverpool, were employed by the defendant, a wholesale grocer at Bristol, to buy and sell on his account great quantities of sugar. The greater part was bought on speculation for resale, and was resold at Liverpool; but some was occasionally sent to the defendant. Sill & Co. usually bought and paid for the sugar, and re-sold in their own names and received the price. They did not draw upon the defendant for the amount of each purchase, nor remit him the bill in payment of each sale; but there was a general running account between them. Sill & Co. never had a general authority to buy, but received directions in each instance; but sometimes, when the markets were low, had unlimited authority as to the quantity they were to buy, or the price they were to pay. In like manner, they had no gen(f) 15 East, 400. See In re Athenaeum Life Ass. Co., 27 L. J. (Ch.) 829.
2 Mass. 398; Odiorne v. Maxcy, 13 lb. 178; Hoffman v. Noble, 6 Mete. 74; Holton v. Smith, 7 N. H. 446; Newbold v. Wright, 4 Rawle, 195; Kennedy v. Strong, 14 Johns. 128; Hewes v. Doddridge, 1 Robinson (Va.) 143. It has, however, been held that although a factor has not authority to pledge, yet he can in the usual course of mercantile dealing, deliver for sale to a broker auctioneer. etc, the goods entrusted to him, and receive money upon them as an advance, and the deposit will bind the principal, who cannot recover them in trover: Martini v. Coles, supra; Laussatt v. Lippincott, 6 S. & R. 386; Martin v. Moulton, 8 N. H. 504; Bowie v. Napier, 1 McCord, 1. But the rule thus established by Paterson v. Tash, having been thought to impose undue restrictions upon the facilities of commercial dealings, has been altered by the acts of Parliament referred to by the English editor, supra, which have been copied with more or less exactness in New York, Pennsylvania, Rhode Island Ohio, Massachusetts, and some other States. See the note to Laussatt v. Lippincott, in 1 Am. L. C. 668.-R.