It is the general rule that one who purports to contract as the agent of another impliedly warrants his authority, and therefore may be held for breach of warranty if the assumed authority is wanting.2 Where, however, the agent in good faith discloses all of the facts touching the question of his authority in order that the person with whom he deals may judge for himself as to the existence or extent of such authority, no warranty is implied.3 If, in such a case, the agent receives a benefit from the performance of the other party and instead of turning it over to his principal retains it himself, is he responsible, quasi contractually, for its value? The answer must be in the negative, for the very circumstances that disprove the existence of an implied warranty show that the person with whom the agent dealt assumed the risk that he was without authority and therefore cannot be said to have conferred the benefit in misreliance upon a supposed right that turned out to be non-existent (ante, Sec. 16).

1 See ante, Sec. 30 as to effect of loss or theft of identical thing received by defendant.

2Mechem, "Agency," Sec. Sec. 544, 545; Huffcut, ','Agency," Sec. 183 and cases cited.

3 Mechem, ."Agency," Sec. 546; Huffcut, "Agency," Sec. 183 and cases cited.

In the English case of Smout v. Ilbery,1 decided in 1842, it was held that the defendant, whose husband had left England for China, was not liable to the plaintiff, a butcher,for meat purchased by her as the agent of her husband after the death of the husband but before information of his death was received. This decision has been criticised,2 but reasonably interpreted it commands respect. In the first place it should be remembered that in 1842 the doctrine of the agent's liability for breach of warranty, as distinguished from his liability in deceit, had not been fully developed.3 And in the second place it is a reasonable inference that there was in fact no implied representation of authority. As was said in a recent judicial discussion of the case: 4 "The husband had left England for China in May, 1839, a time in the history of the world when communication was not what it is now, and the Court seems to have decided upon the ground that the butcher who supplied the goods knew that the facts were such that the wife did not, because she could not, take upon herself to affirm that he was alive. If so, there was no implied contract." But whether or not this was the true ratio decidendi, it seems clear that if the case were to arise to-day, it would be held, either (1) that upon a proper interpretation of the facts there was an implied warranty of authority, or (2) that credit was given to the wife as principal, or (3) that there being no warranty of authority and credit not having been given to the wife as principal, the plaintiff "took a chance" that he was acquiring no contract right to compensation for the goods furnished, and therefore is not entitled, upon the theory of misreliance, to restitution.

Sec. 78. Same: Restitution Against Public Policy: Benefit Conferred Upon Municipal Corporations

Special considerations of public policy have led the courts to refuse to allow a recovery in quasi contract in many instances of benefits conferred upon municipal corporations under void or illegal contracts. The various cases, including those of benefits conferred under contracts void for want of authority in the agent professing to act for the municipality, are discussed in the chapter on ultra vires contracts of corporations (post, Sec. 161).

1 10 Mees. & Wels. 1.

2 See Keener, " Quasi-Contraets," pp. 334-6.

3 See Collen v. Wright, 1857, 8 El. & Bl. 647. 4 Younge v. Toynbee, [1910] 1 K. B. 215, 228.