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Popular Law Library Vol3 Contracts and Agency | by Albert H. Putney



Definition And Requisites Of Contracts. Making The Contract. The Statute Of Frauds. Consideration. Legality Of Object. Operation Of The Contract. Interpretation And Construction Ofcstatutes. Discharge Of Contracts. Some Defenses To Performance Of Contract. Conditional Contracts. Special Branches Of Contract Law. Quasi Contracts. Introductory. Classes Of Agents. Creation Of The Relation. Authority Of The Agent. Execution Of The Agency. Rights And Duties Of Principal And Agents As To Each Other. The Duties Of Principal And Agent To Third Persons. Termination Of Agency. Obligation Of Third Persons.

TitlePopular Law Library Vol3 Contracts Agency
AuthorAlbert H. Putney
PublisherCree Publishing Company
Year1908
Copyright1908, Cree Publishing Company
AmazonPopular Law-Dictionary

Volume III

Contracts Agency

Examination Questions

By Albert H. Putney, A. B., D. C. L., Ll. D. Dean Of The Illinois College Of Law, Author Of "Government In The United States," "Colonial Governments Op European States," "Landmark Cases In United States Constitutional Law," Etc., Member Of The Bar Of Massachusetts And Illinois

-Chapter I. Definition And Requisites Of Contracts. Section 1. Definitions
Many different, and to a certain extent inconsistent, definitions of contracts have been given by different authors and judges. Blackstone defines a contract as An agreement, upon sufficient conside...
-Section 2. Requisites Of A Contract
The requisites for a contract are as follows: I. Competent parties.11 II. An agreement between these parties reached by an offer made by one and accepted by the other.12 III. This agreement must be...
-Section 3. Classes Of Contracts
Contracts are divided into express contracts and implied contracts, to which list may be added quasi or constructive contracts. An express contract is one which is contained in an agreement entered i...
-Section 4. Method Of Treatment
In the preparation of a series of books of this character, the important problem presented to the writer is how to present the most law and the most important law in the space which can be given to ea...
-Chapter II. The Parties To The Contract. Section 5. Who May Contract - General Rule
In general the law presumes that all natural persons are capable of entering into a contract. Inability to contract is the exceptional, and not the natural condition. The burden of proof is on the par...
-Section 6. Minors
At common law every person was a minor (or infant) until he or she had attained the age of twenty-one years. In a little more than half of the states of this country at the present time, by statutory ...
-Section 7. Married Women
At common law, married women were entirely without the power to contract. At the present time, she has very generally been given this power by statute in the different states. Some limitations still r...
-Section 8. Persons Of Unsound Mind
The making of a contract requires the meeting of the minds of the parties, and as an insane person is incapable of understanding the nature of his acts, in theory, it would be impossible for a person ...
-Section 9. Drunken Persons
Drunkenness is no defense for the commission of a crime or tort. It may, however, be a defense against the enforcement of a contract made by a party who was so far under the influence of liquor as not...
-Section 10. Spendthrifts
At common law, and still in a few states, a party may be adjudged incapable of conducting his affairs on account of being a spendthrift, and a conservator appointed for him. In such case the contracts...
-Section 11. Aliens
In early times the laws of every country bore very hardly on all aliens. At the present time, in most jurisdictions an alien who is not an alien enemy, has full power to contract and to sue or be sued...
-Section 12. Corporations
Contracts may be made not only by natural persons but also by those artificial persons known as corporations. A description of corporations and an account of the peculiarities of contract law affectin...
-Section 13. Trustees
The great mass of contracts are made by the parties themselves interested, either personally or through agents. There is, however, a class of contracts which are made by persons not for their own bene...
-Chapter III. Making The Contract. Section 14. Offer And Acceptance
It has been shown how a contract is the result of an agreement, or a meeting of minds, between two or more parties. Such a meeting of minds cannot take place spontaneously or by accident. In the makin...
-Section 15. The Offer
The offer may be either express or implied. An offer is express where the proposal is set out in express words either oral or written. In the more important contracts the offer is almost invariably of...
-Section 16. Revocation Or Lapse Of Offer
An offer may be terminated in any of the following ways: (1) By revocation; (2) by lapse of time; (3) by a counter offer or modified acceptance; (4) by the death or insanity of the party making the of...
-Section 16. Revocation Or Lapse Of Offer. Continued
William Barnicoat, called as a witness by the defendants, testified that he was chief engineer of the Fire Department in Boston, in 1837, and for several years after; that alarms of fire were frequen...
-Section 17. Acceptance
An offer can only ripen into a contract by being accepted 16 by the person (or one of the persons) to whom it was made. To make a contract the acceptance must be one of the exact terms contained in th...
-Section 18. Offer Or Acceptance By Mail Or Telegraph
Either party may make use of the mail or telegraph for the transmission of his offer or acceptance. The party using the mail adopts it as his agent and the contract is completed the moment the accepta...
-Section 18. Offer Or Acceptance By Mail Or Telegraph. Continued
In support of the contention that the acceptance was not complete till the letter of acceptance reached its destination, it was urged that until that event the acceptor might have interrupted or prev...
-Section 19. Situs Of The Making Of The Contract
The situs of a contract, or the locus contractus is not necessarily a single place, but may consist of one place for one purpose, and another place for another purpose. The truth is that a contract i...
-Chapter IV. The Statute Of Frauds. Section 20. The Statute And Its Purpose
The term Statute of Frauds is the name generally applied to those statutes, existing in England and the different states, requiring contracts on certain subjects to be in writing. The original statu...
-Section 21. Difference In The Wording Of The Statute In Different States
It is impossible to describe in detail the exact wording of the statutes of fraud in each of the states. Two important differences must be noted at the outset however. Some states only re-enact the fo...
-Section 22. What Constitutes Sufficient Writing
The various statutes of frauds do not necessarily require a formal contract, but permit a memorandum of the contract signed by the party to be charged thereby. Any memorandum, however, informal, is ad...
-Section 23. The Fourth Section
The text of the fourth section of the original Statute of Frauds is as follows: And be it further enacted by the authority aforesaid, That from and after the said four and twentieth day of June no ac...
-Section 24. Promise By Executor Or Administrator
The original Statute of Frauds and those of nearly all of the states include promises made by an executor or administrator, to answer damages out of his own estate, among the contracts which must be i...
-Section 25. Promise To Answer For The Debt, Default Or Miscarriage Of Another
The second class of promises which the fourth section of the original statute required to be in writing were those to answer for the debt, default or miscarriage of another person. In order for this s...
-Promise To Answer For The Debt, Default Or Miscarriage Of Another. Continued
Board of Com'rs of GibsDti Co. vs. Cincinnati Steam Heating Co., supra; Keesling vs. Frazier, 119 Ind., 185; 21 N. E., 552; Shaffer vs. Ryan, 84 Ind., 140; King vs. Summitt, supra. Appellant's secon...
-Section 26. Agreements Made In Consideration Of Marriage
Another class of agreements required to be in writing are those made in consideration of marriage. This provision was at first construed in England to include mutual promises to marry;29 but this view...
-Section 27. Contracts For The Sale Of Land On Any Interest Therein
The most important contracts required by the statute of frauds to be in writing are those for the sale or transfer of land or any interest in or concerning them. These provisions of the statute are v...
-Contracts For The Sale Of Land On Any Interest Therein. Continued
A revocable license to be exercised on the grantor's land may be granted by parol.51 A license is a permission or authority to enter the land and do certain acts or series of acts, the parties not int...
-Section 28. Agreements Not To Be Performed Within One Year
The remaining class of agreements covered by the fourth section of the statute of frauds are those which are not to be performed within a year from the making thereof. For an agreement to come under t...
-Section 29. The Seventeenth Section
The seventeenth section of the English statute of frauds provides that No contract for the sale of any goods, wares or merchandises, for the price of ten pounds sterling or upwards, shall be allowed ...
-Chapter V. Consideration. Section 30. Definition
Consideration is the thing or act of value, given to or done for, one party to a contract, or promise made to him at his request, either express or implied, in return for the thing given, act done, or...
-Section 31. Necessity
In order that a contract may be enforceable at law there must be a consideration for the promise.2 1 Streets Foundation of Legal Liability, Vol. II. Page 67. 2 Cooke vs. Bradley, 7 Conn., 57; Bailey...
-Section 32. Adequacy Of Consideration
The consideration must be of some value, bat this value need not be adequate to the promise. The law never undertakes to make the terms of the contract for the contracting parties but leaves the parti...
-Section 33. Consideration In Sealed Instruments
As a general rule a sealed instrument is binding and enforceable although no consideration is mentioned in it and even though there is none in fact. In Cooch vs. Goodman,9 the Court said: That a cove...
-Section 34. Moral Obligation
It is not always necessary, however, that there must be an immediate benefit to the party promising or a loss to the party to whom the promise was made. What is known as a moral obligation is sufficie...
-Section 35. Existing Legal Obligations
If a person actually does or promises to do something which he is already bound to do, this is not sufficient consideration to support a promise by the other party.15 Thus the payment of an undisputed...
-Section 36. Forbearance
Forbearance to exercise a legal right may be good consideration for a promise. Thus, forbearance to sue or to levy on an execution may be a good consideration for a promise to pay even a larger sum of...
-Section 37. Compromise
Although if the amount of the claim is undisputed a payment of a part of it will not work a discharge of the whole debt even with the agreement of both parties, nevertheless, if there is any dispute a...
-Section 38. Mutual Promises
Mutual promises will always constitute mutual considerations. In such cases, the promise by one party is the consideration for the promise by the other.20 Mutual promises to marry render both parties ...
-Section 39. Subscriptions
It is a disputed point whether voluntary subscriptions by a number of persons for an object in which they have a common interest - as for instance the building of a church - are binding upon the parti...
-Section 40. Marriage
Marriage is a sufficient consideration to support a promise on account of the change which it makes in the relations of the parties. In some of the cases, the courts even say that it is one of the bes...
-Section 41. Failure Of Consideration
If the consideration for a promise wholly fails, then the promise is one without consideration and is void. For example, if land is sold and a notice given for its payment and then the title to the la...
-Chapter VI. Legality Of Object. Section 42. In General
No contract which is illegal or contrary to public policy will be enforced by the courts.1 As the Supreme Court of the United States has said: Courts are instituted to carry into effect the laws of a...
-Section 43. Prohibition May Be Either Express or Implied
Any act which is forbidden either by the common or the statutory law - whether it is malum in se or merely malum prohibitum,3 indictable, or only subject to a penalty or forfeiture,4 or however otherw...
-Section 44. Classes Of Illegal Contracts
The most important classes of illegal contracts are the following: Agreements in restraint of trade.8 Sunday laws.9 Wagers.10 Usury.11 Ultra vires agreements.12 Agreements which tend to prejudic...
-Section 45. Agreements In Restraint Of Trade
One of the most dangerous classes of illegal contracts is that of those in restraint of trade. The welfare of the community requires free competition in all branches of industry, and it is also agains...
-Section 45. Agreements In Restraint Of Trade. Part 2
But then it is said that, over and above the rule that the contract shall be reasonable, there exists another rule, namely: that the contract shall be limited as to space, and that this contract bein...
-Section 45. Agreements In Restraint Of Trade. Part 3
22 17 R. I., 3. Is the contract unreasonable? Courts should be slow to set aside as unreasonable a restriction which has formed a part of the consideration of a contract. Yet when it is a restrictio...
-Section 46. Sunday Laws
The common law did not prohibit the making of contracts on Sunday, and such contracts are valid in the absence of express statutory provisions to the contrary.23 In the majority of states there are st...
-Section 47. Wagers And Gambling Contracts
A wager is an agreement between parties, differing as to an uncertain fact or forecast of a future event, that, on the transpiring of what will disclose the truth, a designated sum of money or other ...
-Section 47. Wagers And Gambling Contracts. Continued
In Bigelow vs. Benedict, 70 N. Y., 202, 206, the Court of Appeals of New York said that 'where an optional contract for the sale of property is made, and there is no intention on the one side to sell...
-Section 48. Usury
At common law, the taking of interest of any amount was in early times prohibited to all but a particular class in the community. Later, the taking of interest became legal, and for a while, no limita...
-Section 49. Ultra Vires Agreements
By ultra vires agreements are meant those agreements made by corporations which are beyond the extent of the powers granted to the corporation by its charter or the statute of the State. Such contract...
-Section 50. Agreements Which Tend To Prejudice A Nation In Its Relations With Other Nations
On the ground of comity and in accordance with the principle of international law, no court will enforce any agreement which will prejudice the home country in its relation with foreign nations. This ...
-Section 51. Agreements Which Tend To Injure The Public Service
Agreements which tend in any way to injure the public service are clearly, against public policy and void. Under this heading would come all contracts which will tend to interfere with the freedom of ...
-Section 52. Agreements Which Tend To Increase Litigation
The common law was originally very strict in its provisions against contracts which would tend to increase litigation. Champerty and maintenance were especially prohibited. Maintenance is defined in ...
-Section 53. Agreements Which Tend To Obstruct Justice
Where a crime has been committed the party especially injured has no right to agree to drop the prosecution, or to refuse to testify against the criminal, in consideration of receiving satisfaction fo...
-Section 54. Agreements Which Involve Immorality
Agreements which either directly or indirectly tend to violate the established rules of decency and morality are void, as being against public policy. Most of the contracts which come under this class...
-Section 55. Agreements In Restraint Of Marriage
Marriage is considered by the law as the basis of society, and any contract which tends to interfere with marriage, or with the free choice by men and women of their wives and husbands, is looked upon...
-Section 57. Agreements Illegal Only In Part
If an agreement is partially illegal and partially legal, and the illegal part can be separated from the legal part, then the last mentioned portion will be good and enforceable. If, however, the cont...
-Section 58. Recovery Under An Illegel Contract
No agreement between parties to do a thing prohibited by law or subversive of any public interest which the law cherishes, will be judicially enforced. This means that no party to such a contract has...
-Chapter VII. Operation Of The Contract. Section 59. Limits Of Contractual Relations
The general rule (subject to a few exceptions, to be noticed in the next section) is that a contract cannot impose liabilities, nor confer rights on a person who is not a party to such contract. The t...
-Section 60. Effect On Third Parties
There are, however, a few real or apparent exceptions to this general rule. In general a contract cannot confer rights on a third person, but if a person purchases property with money belonging to an...
-Section 61. Joint Contracts
A joint promise is one where two or more persons jointly agree to do a certain thing. Here the promise is that of all collectively, and not of any one individually.8 The result is that the person, to ...
-Section 62. Assignment Of Contracts
The rule as to the assignability of such instruments is that all contracts may be assigned, either before or after the breach, which were not entered into, upon the one side or the other, on account o...
-Chapter VIII. Interpretation And Construction Of Statutes. Section 63. Definition
The terms 'interpretation' and 'construction' as generally used by courts and legal writers, signify the ascertainment of the thought or meaning of the author of, or of the parties to, a legal docume...
-Section 64. First Principle - Intention Of Parties
The great object and purpose of the interpretation and construction of contracts is to ascertain and carry out the intention of the parties to the contract. The duty of the Court is to enforce the con...
-Section 65. Whole Contract to be Construed Together
In determining the intention of the parties from the wording of the contract, the whole contract must be construed together. Obscurities in certain passages or apparent inconsistencies between differe...
-Section 66. Presumptions In Favor Of Instruments
All presumptions will be made in favor of upholding the contract. Where the language of an instrument is susceptible of two constructions, one of which will render it valid and the other invalid, the ...
-Section 67. Some Other Presumptions
In case of doubt words in a contract or deed will be construed most strongly against the party using such words.18 The contrary is the case, however, where the State is the grantor,19 and contracts in...
-Section 68. Parol Evidence - When Admissible To Show Intention
Parol evidence is admissible to explain a latent ambiguity in a written contract, but not a patent ambiguity. This will be fully explained under the subject of Evidence.21 ...
-Section 69. Meaning Of Words And Phrases; Punctuation And Grammar
The rules already given under the subject of Statutory Construction as to the meaning to be given to words and phrases, and the force to be given to punctuation marks and grammatical construction will...
-Section 70. Contracts Partly Written And Partly Printed
In the case of a contract partly written and partly printed, the written words will be given greater weight, as being the words selected by the parties, and presumably more considered and better under...
-Chapter IX. Discharge Of Contracts. Section 71. In General
By the discharge of a contract is meant the termination of all liabilities thereunder, in whatever way this may have been brought about. Such discharge may take place either by the act of the parties ...
-Section 72. Performance According To Terms Of Contract
The simplest of all methods of discharging the contract is by its performance on both sides, according to the terms of the original contract. A modified performance will have the same effect if the pa...
-Section 73. Release And Rescission
The parties who have entered into any contract may by a subsequent agreement agree to release each other from all liability for the performance of said contract. Such a contract as well as the origina...
-Section 74. Discharge By Substituted Agreement
Similar to the discharge of a contract by release, is discharge by substituted agreement. Such a discharge is called a novation, and takes place wherever a new contract is expressly substituted for th...
-Section 75. Discharge By Repudiation Of The Contract
Repudiation or a refusal to perform a contract releases the other parties from their obligations and enables them to sue for damages, even before the performance was due from the party who has repudia...
-Section 77. Discharge Of Contract By Operation Of Law
The principal methods by which a contract can be discharged by operation of law are by death, bankruptcy, alteration of a written instrument, merger, or judgment. ...
-Section 78. Discharge By Death
All contracts involving personal services or relations are terminated by the death of the person. Among contracts of this character would be those of partnership, and generally those of agency. Contra...
-Section 79. Discharge By Bankruptcy
A second method by which contracts may be discharged by operation of law is by bankruptcy. Such discharges are entirely regulated by statute and will be discussed under the subject of Bankruptcy.12 ...
-Section 80. Discharge Of Contract By Merger
A contract is discharged by merger where a new security of a higher nature in legal operation than the old one is taken by the same person against the same person for the same debt or demand.13 ...
-Section 81. Discharge By Alteration Of A Written Instrument
The intentional and material alteration of a written instrument by one party to a contract without the consent of the others, releases those parties not consenting to the alteration from any liability...
-Section 82. Discharge Of Contract By Judgment
Where a cause of action is pursued to final judgment in a court of competent jurisdiction, a judgment in favor of the plaintiff discharges the cause of action by way of merger,15 and a judgment again...
-Section 83. Discharge By Lapse Of Time
In every State there are statutes known as Statutes of Limitations, which provide that no action shall be brought on any claim unless such action is brought within a certain time after the cause of ...
-Chapter X. Some Defenses To Performance Of Contract. Section 84. Mistake
The doctrine of mistake, the same as of fraud, is in the main a product of the more elementary one that parties enter into a contract only by the concurrent consent of their wills to the same thing. ...
-Section 85. Kinds Of Mistake
Mistake is divided into two classes; mistake of law and mistake of fact. Everybody is conclusively presumed to know the law and a mistake of law is therefore no defense either in a criminal prosecutio...
-Section 86. Fraud
The effect of fraud upon a contract is different from mistake in that while mistake renders a contract void, fraud only renders it voidable. If a person means to agree to the terms of the contract as ...
-Section 87. Duress
Duress, like fraud, renders a contract voidable rather than void. Duress considered as a ground for avoiding a contract consists in any of the following acts committed or threatened by one of the par...
-Section 88. Undue Influence
Undue influence arises wherever a person who stands in a fiduciary relation towards another, uses such fiduciary relation to secure an unfair contract from the person towards whom he stands in such re...
-Chapter XI. Conditional Contracts. Section 89. Conditional Promises
Up to this time, we have been considering only absolute contracts. There are, however, other contracts known as conditional contracts. A conditional contract is one which goes into effect or is determ...
-Section 90. Condition And Subsidiary Promises
A distinction is to be noted between those provisions of the contract which are considered conditional and those which are merely subsidiary promises. A breach of a condition destroys the rights of a ...
-Section 91. Conditions Precedent
In the case of conditions precedent the promisor cannot become bound on his promise as long as the condition is unfulfilled no matter what the reason for the non-fulfillment of the condition may be.3 ...
-Section 92. Conditions Concurrent
Strictly speaking, conditions concurrent can only exist in the eyes of the law. It is, of course, impossible that two conditions shall be fulfilled in the same time, and yet each precede the other. In...
-Section 93. Conditions Subsequent
When a contract contains within itself express or implied provisions for which it may be terminated under certain circumstances, these are known as conditions subsequent. The forms which such conditio...
-Chapter XII. Special Branches Of Contract Law. Section 94. Early And Modern Classifications Of Contracts
Repeated references have already been made to the fact that in all early legal systems attention is paid to the form, rather than to the substance, of the law. This tendency is to be observed in the e...
-Section 95. Sales
Sales of personal property were among the earliest contracts to come into existence. A sale is a contract for the transfer of property from one person to another, in consideration of some price, or re...
-Section 96. Bailments
Closely allied to contracts of sale are bailments which transfer the possession of the goods without transferring the title. Sir William Jones, the first important writer on this branch of the law, de...
-Section 97. Agency
Agency is the term signifying the legal relations established when one man is authorized to represent and act for another and does so represent and act for another.9 With the increase of complexity of...
-Section 98. Partnership
Partnership is the relation subsisting between two or more persons who have contracted together to share, as common owners, the profits of a business carried on by all, or any of them, on behalf of al...
-Section 99. Corporations
Corporations are artificial persons created by the law, and only existing in the eyes of the law. Corporations possess many advantages over partnership, and are yearly growing in importance. The pecul...
-Section 100. Bills And Notes
The law governing bills and notes present the greatest divergency from the general principles of contracts in the common law, to be found in any branch of this subject. The reason for this is found in...
-Section 101. Guaranty And Suretyship
The subject of guaranty and suretyship includes a treatment of those collateral contracts where one person goes security for another person. This subject is closely allied to the former one, as most o...
-Section 102. Insurance
One of the very latest branches of contract law to come into prominence is that of insurance. Insurance is a conditional contract, whereby one party undertakes to indemnify another against loss, dama...
-Chapter XIII. Quasi Contracts. Section 103. What Are Quasi Contracts?
Quasi contracts are legal fictions adopted for the purpose of enforcing legal duties by actions ex contractu, where no actual contract exists, either express or implied.1 Strictly, quasi contracts ar...
-Section 104. Classes Of Quasi Contracts
Quasi contracts arise for the following reasons: (a) Work and Services,4 (b) Money Received,5 (c) Money Paid,6 (d) Goods Sold and Delivered,7 (e) Use and Occupation,8 (f) Where Tort is Waived and Suit...
-Section 105. Work And Services
For mere voluntary or gratuitous services there can be no recovery. No person can have a liability forced upon him in this way without any consent on his part.10 There is one well established exceptio...
-Section 106. Money Received
Where a person has in his hands money which in equity and good conscience belongs to and ought to be paid to another, an action for money had and received will lie for the recovery of such money and n...
-Section 107. Money Paid
When a person pays money for another at his request, he is entitled to be reimbursed by the party for whom the payment was made.23 Where a person, not a party to a note, in the presence of the maker r...
-Section 107. Money Paid. Part 2
In order for it to be possible to recover back money paid on an illegal claim, the payment must be involuntary and made under protest. A payment will be recognized as involuntary only where the party...
-Section 107. Money Paid. Part 3
In Stevens vs. Lynch, 12 East, 38, the plaintiff was the indorser, and the defendant the drawer of a bill of exchange. The defense was, that the plaintiff had given time to the acceptor after his dis...
-Section 107. Money Paid. Part 4
If this be so, why has this question been so frequently and elaborately discussed, not only in the English, but in our courts of equity? How are the cases of Bilbie vs. Lumley and of Brisbane vs. Dac...
-Section 108. Goods Sold And Delivered
Where goods are sold and delivered to another, without any express agreement as to the price to be paid for them the law presumes a promise to pay what they are reasonably worth. This is, in reality, ...
-Section 109. Use And Occupation
Before rent can be collected for the use and occupation of property the relation of landlord and tenant must exist between the owner and the occupier of the premises. Where, however, the use of the pr...
-Section 110. Where Tort Is Waived And Suit Brought In Assumpsit
Formerly a tortious action could only be relieved against by an action in tort. In a few cases, however, the injured party, is now allowed, to treat the tort as having created a contract, waive the to...
-Seventh Subject. Agency
By Shelley B. Neltnor, D. C. L. Professor Of The Law Of Sales, Agency And Negotiable Instruments At The Illinois College Of Law. Member Of The Chicago Bar. ...
-Chapter I. Introductory. Section 1. Principal And Agent
The subject of Agency is closely connected, and is a part of commercial and maritime law. One who has a large business, transacted either by land or sea, is bound to employ others to take charge of hi...
-Section 2. The Principal
The principal, who might also be called the employer or master, is the person from whom the authority to act is derived; he is the appointing person, represented by the agent, acting under the authori...
-Section 3. The Agent
The agent who is also properly called the representative, the servant, the attorney, or delegate, is the one who performs the duties of the agency, acting under authority, direction or appointment of ...
-Section 4. The Power Or Authority
The agent, being the proxy of his principal or master, his authority or power to represent the principal so as to bind him by the act, performed is a matter of the will of the principal, it rests with...
-Chapter II. Classes Of Agents. Section 5. Classification Of Agents
Agents are generally classified as general, special, or universal. Text writers and students endeavoring in this wise to more or less closely differentiate the powers of the agent, though a person may...
-Section 6. Universal Agents
A universal agent is of exceeding rare occurrence. Such an agent would be one with authority to perform all acts for the principal which his principal might perform in person and which he could legall...
-Section 7. General Agents
One who is appointed to act in the affairs of the principal generally, in some business or trade or work of the principal, binding the principal for all acts of such agent within the scope of the appa...
-Section 8. Special Agents
Where the authority is limited to the performance of a single act, or accomplishment of one transaction, the agent so acting is called a special agent;3 as where an agent is vested with authority to p...
-Section 9. Particular Kinds Of Agents
The nature of the work to be done by the agent is the basis of a further classification. The most important agents to be mentioned in this connection are brokers, factors, auctioneers, officers of shi...
-Section 10. Brokers
One who negotiates a contract for another, relating to a subject matter not in his possession, is a broker.4 The broker's commission is called brokerage. His duty is simply to bring the parties togeth...
-Section 11. Factors
An agent who has goods consigned to him for the purpose of negotiating a sale of the same, for a commission, is a factor or commission merchant.9 Where the consignee, for an additional compensation, g...
-Section 12. Auctioneers
An agent who sells property, rights or privileges at auction to the highest bidder, for a commission, is called an auctioneer.12 He is the agent for both the seller and the purchaser. He is the agent ...
-Section 13. Officers Of Ships
A ship to be seaworthy in maritime law must have a master, commonly called the captain. He receives his appointment from the owners of the ship. His duties are first to see that the ship is seaworthy ...
-Section 14. Other Particular Agents
All corporations must have certain particular officers usually with certain designated or implied duties, with corresponding authority to bind the cor- . porate principal. The board of directors is th...
-Chapter III. Competency Of Parties. Section 15. Who May Be A Principal
One May Be A Principal, In Any Proposed Agency, Who Is Competent Himself To Transact That Contract,1 The Fulfillment Of Which, He Delegates To Another. It Is Also True, That If The Person Who Delegate...
-Section 16. Incompetent Parties
Parties are usually rendered incompetent to contract either from a legal cause or from a natural cause. The legal cause may arise from some provision of the statute, or from some rule of the common la...
-Section 17. Corporations
The charter fixes the powers of a corporation, to contract, and the charter, and by-laws, usually fix the method of appointment of its agents.7 The corporation may adopt the act of one, as its own act...
-Section 18. Who May Be Agents
It may be broadly stated that any person may be the agent of another, unless he be a lunatic, an idiot or a child of tender years.8 Infants,9 married women, persons under the ban of the law, slaves, a...
-Section 19. Incompetent Parties
In addition to lunatics, and idiots, a child of tender years, that is, one under the age of seven years, is ordinarily lacking in sufficient understanding to make him a proper agent, but above the age...
-Section 20. Corporations
A corporation may act as agent, within the scope of its charter powers,14 but the power must be expressly granted or be implied as necessary to properly carry out express powers so granted. It is quit...
-Chapter IV. Creation Of The Relation. Section 21. Appointment Of Agents
The rule is stated generally, that an agent can become such, only by the will of the principal. The rule is subject to the exception that the law will sometimes create an agency even against the will ...
-Section 22. Manner
The appointment of the agent may be made orally 4 or by an informal writing5 or under a formal power under seal.6 Most appointments are informal. In the commercial world, the actual authority conferre...
-Section 23. Requisites
Ordinarily authority may be conferred on the agent by parol,8 and it is only in those cases where the requirements of the statute of frauds must be met, that a written authority is necessary, though t...
-Section 24. Ratification Of Acts Of Alleged Agent
It is not necessary that the agent's authority to act be given before the act is performed, and a principal after the consummation of an act, by one on his behalf, without previous authority, may conf...
-Section 25. Agency - How Proved
Where the question of the authority of the agent is directly involved, it can only be proved by bringing evidence of the source of the agency, the act alleged constituting the principal's appointment ...
-Chapter V. Authority Of The Agent. Section 26. A Difference Between Authority Of General And Special Agents
What particular authority an agent may have had conferred on him in a given case, may be hard to decide, but as the authority of the agents rests on the principal's appointment, the Court will endeavo...
-Section 27. When Principal Is Bound By Contract
When an agent acts entirely within the scope of the authority conferred on him, discloses to the third person the name of the principal for whom he is acting as agent, the principal alone will be boun...
-Section 28. When Principal Is Not Bound
The principal will not be bound by his agent's contracts or agreements, if the agent has an adverse interest8 in the agency, and the third person has knowledge of this fact and the principal himself w...
-Section 29. When Agent Is Personally Bound On The Contract
If an agent, believing himself to have certain authority, which he does not possess, makes an express representation to a third person that he has such authority, he is liable to the third party for t...
-Section 30. Authority To Sell Personal Property
A principal may, by express authority, confer the power on the agent to sell personal property, but the power may also be implied from the circumstances of the case, as by giving possession of propert...
-Section 31. Power To Sell Real Estate
The authority to sell real estate, should properly be by power of attorney, in due form, stating that the agent is invested with authority to sell, bargain, and convey the real estate in question,15 d...
-Section 32. Place And Time Of Sale
If the power designates a place of sale, that is the expression of the owner's will, and the agent is bound to observe it. An authority to sell at once could not be extended to invest the agent with...
-Section 33. Authority To Give Credit
In the absence of a contrary expression in the power, the presumption is, that an agent who is given power to sell property, must sell for cash and not on credit.20 Where, however, an agent is clothed...
-Section 34. Authority To Warrant
An agent with authority to sell goods and chattels, would first have implied authority to warrant the title of the principal.23 This implied warranty would hold against the principal, if even he himse...
-Section 35. Authority To Receive Payment
Whether or not an agent has the power to receive payment for goods sold, depends upon the circumstances of the case. A clerk in a shop would certainly have the right to receive the money at the time o...
-Section 36. Authority To Mortgage Or Lease
The power to mortgage or lease property generally must be expressly given, it will not be implied in a general power to manage the principal's business, neither would an authority to sell, carry with ...
-Section 37. Authority To Purchase Property
The agent authorized to purchase goods, and being supplied with funds, would not have authority to buy on credit.34 But where the agent is instructed to purchase and has not been supplied with the cas...
-Section 38. Authority In Relation To Negotiable Paper
It is a well stated principle, that the authority to bind the principal on negotiable paper must not be lightly inferred. Generally, the authority must be expressly conferred, and any authority grante...
-Chapter VI. Execution Of The Agency. Section 39. Genreal Rule
In performing his duties as the representative of another, it is the cardinal rule that the agent must so act, as to carry out the will of the principal. He should after apprising the third person of ...
-Section 40. Manner Of Execution
The manner of executing the contract depends upon the kind of contract that is to be entered into. It may be a simple oral contract, or a simple contract in writing, or a contract to be evidenced by a...
-Section 41. Power To Delegate Authority
It is a general rule of law that since the agent himself is a delegate, he cannot redelegate the authority delegated to him. The maxim is Delegatus non potest delegare, but the rule is not without e...
-Section 42 When Authority Cannot Be Delegated
As intimated above, where an agency carries with it a trust, or the exercise of some personal skill or labor, the agent cannot employ another to act in his stead. This would be true in the case of the...
-Section 43. Joint Agents
Where several agents are given joint authority, the execution of the authority must generally be joint.12 It is sometimes difficult to determine whether agents have joint authority only, or whether th...
-Chapter VII. Rights And Duties Of Principal And Agents As To Each Other. Section 44. Duties Owed By Agent To Principal
Once the agent assents to the agency, it is his first duty to enter upon the performance of the trust imposed in him. His failure to enter upon the execution of the contract, would render him liable t...
-Section 45. Degree Of Skill Required
Whenever the performance of the duties of the agency, itself requires the possession of professional skill, the agent entering on such an agency, impliedly warrants that he possesses such skill, and t...
-Section 46. Degree Of Care Required
In addition to the exercise of reasonable skill, the agent should perform his duties with that degree of care, which the circumstances of the agency dictate. He should so endeavor to act with such car...
-Section 48. Keeping Accounts And Accounting For Money Or Other Property
The principal may at the time of appointing the agent, designate the time for making regular reports to him showing the state of the accounts of the agent, of all funds or property in his hands; where...
-Section 49. Duties Owed By Principal To Agent
In addition to the duty of compensating the agent where he has performed his duties with proper care and skill, the principal is bound to reimburse the agent, for all advances and expenses made in the...
-Section 50. Payment For Services And Expenses
The first duty the principal owes the agent in return for the many duties of the agent, is to compensate him for his services in performing the agency. The salary or commission of the agent may have b...
-Section 51. The Agent's Right To Lien
The law gives to the agent in certain cases, the right to hold property in his hands to secure the payment of his just claim for service, and for disbursements made by him as agent. This is called the...
-Section 52. Rights Of Agent In Cases Of Emergency
It is not only the right of an agent vested with general authority to assume extraordinary powers where an emergency arises, and action is necessary to protect the interest of the principal, but it is...
-Chapter VIII. The Duties Of Principal And Agent To Third Persons. Section 53. Of Agent To Third Person
The agent disclosing his principal's name, and making the contract as such agent, cannot be held liable on the contract to the third person. The agent may, of course, by express agreement, make himsel...
-Section 54. Liability In Tort
As to the torts of an agent, the rule is the contrary to the rule as to his acts in contracting. The agent is bound to third persons, who are injured by his wrongful acts, even though they are done by...
-Section 55. Money Paid To Agent
If a third person pays money to agent under mistake, and demand is made on the agent to return the money to the third person, the agent would be liable for the payment of the money, but if the agent p...
-Section 56. Of Principal To Third Parties
Once an agent is invested with authority, as such, he becomes the hand of the principal, or is the principal in law so far as the agency extends, and so far, the principal and the agent, are then one ...
-Section 57. On Contracts Made By Agent
The principal is liable to third persons on all contracts made by his agent, so long as the agent acts within the scope of his real, or apparent authority. The agent being clothed with apparent author...
-Section 58. Estoppel Of Principal
Where the agent has received no appointment from the principal, but the principal has led another to believe, that he has invested the so-called agent with authority, the principal will be estopped fr...
-Section 59. On Torts Of Agent
The rule has already been stated, that the agent must answer for his wrongful acts, but while the policy of the law makes the agent liable for his torts, even when committed while performing the dutie...
-Section 60. Notice Of Termination Of Agency Necessary To Be Given To Third Parties
The agent, once having been appointed, if it is either the will of the principal or agent that the agency be dissolved or in any case, where it is dissolved for any reason, it is the duty of the princ...
-Chapter IX. Termination Of Agency. Section 61. By Act Of Parties
Since the agency comes into being by the appointment of an agent and exists purely by the will of the principal, the relation of principal and agent may be terminated practically, whenever the parties...
-Section 62. In Accordance With Original Agreement
The contract of agency is governed by the general principals of contract law; there is no reason why it should be otherwise, hence if the terms of the contract in reference to the duration of the cont...
-Section 63. By New Agreement
The relation of principal and agent being founded on a mere contract, there is nothing sacred in this particular kind of contract that would prevent the parties from bringing the contract to an end, b...
-Section 64. When Principal, May Terminate
The principal, of right, cannot terminate a contract of agency through caprice, or where it is to his benefit to do so, unless the contract is merely at will. Where it is for a stated term he has the ...
-Section 65. When Agent May Terminate Contract
The agent's power to renounce the agency, is as full and ample as the power of the principal to revoke the agency.14 The agent may have both the right, and power, to renounce, but having only the powe...
-Section 66. Death Of Either Party
The authority of the agent is terminated instantly by the death of the principal, even though it was an irrevocable agency in the lifetime of the principal. This is the general rule and governs except...
-Section 67. Insanity
Whenever a principal becomes insane, the authority of the agent is at an end and a third person dealing with the agent with notice of the principal's insanity could not hold the principal's estate on ...
-Section 68. Marriage Of A Feme Sole
Following the rule of the common law that a woman on marriage was deprived generally of the power to contract and to exercise authority over her own property, her previous appointment of an agent was ...
-Section 69. Bankruptcy
Bankruptcy must be distinguished from insolvency, the latter is simply a present inability to pay one's debts while bankruptcy is the result of an adjudication by the courts, and may be a voluntary, o...
-Section 70. War
It is the general rule of law, that with the breaking out of war between the nations of the principal and agent, the war itself brings the agency to an end, and prevents the agent from acting further....
-Section 71. Irrevocable Agencies
In addition to the agency coupled with an interest, that is where the agent's interest is in the thing itself, in addition to the interest he has in the execution of the power vested in him, there is ...
-Chapter X. Obligation Of Third Persons. Section 72. Liability Of Third Persons To Principal
Since the principal is liable to third persons on all contracts made by his agent, the principal is entitled to recover from the third person, anything owing or due from the third person, on the contr...
-Section 73. Right To Recover For Torts
The third person owes to the principal the passive duty not to interfere with the agent, or the agency, in any way that would wrong the principal in his right to the agent's services.5 A principal may...
-Section 74. Principal's Right To Follow Trust Funds
Wherever property, or money, has come into the hands of an agent charged with the accomplishment of a certain object, or is given the agent for the performance of a particular act, the law imposes a t...
-Section 75. When Agent Is In Secret Employ Of Another
The rule has already been stated, that an agent ordinarily can have but one master, and where a third person employs the agent to work for him in the same line of employment, for which he has already ...
-Contracts Questions
Chapter I Page 11. 1. Give Blackstone's definition of a contract. 2. Give Anson's definition of a contract. 3. Give Parson's definition of a contract. 4. Give Bishop's definition of a contract. ...
-Contracts Questions. Part 2
Page 56. 1. What promises by an executor or administrator must be in writing? Page 57. 1. What contracts are included under the provision of the statute of frauds, requiring all promises or answer ...
-Contracts Questions. Part 3
Page 115. 1. What is champerty? 2. What is maintenance? 3. What contracts are held illegal as tending to obstruct justice? Pages 116-118. 1. What was the question of law involved in the case of X...
-Agency Questions
Chapter I Page 201. 1. State what a true agency is. 2. What is an ostensible agency? 3. State the two maxims on which the cardinal principles of the law of agency is based. Page 202. 1. What is ...
-Appendix A To Contracts. Forms. Farm Contract. Farming Upon Shares
THIS AGREEMENT, Made this 20th day of February, A. D. 1908, by and between Frank T. Johnson party of the first part, and John Clarkson owner of the real estate hereinafter described, party of the seco...
-Agreement And Power Of Attorney To Prosecute Suit For Proportion Of Amount To Be Recovered
WHEREAS THE UNDERSIGNED, William Ashbrook of Chicago, County of Cook, and State of Illinois, is about to bring a certain action at law against William J. Cook, in the County of Cook and State of Illin...
-Right-Of-Way Contract
WHEREAS, The construction of a Railway is contemplated on a line which, as now located, crosses the land hereinafter described. Now, Therefore, To aid in securing the location and construction thereo...
-Employee's Contract
AGREEMENT, Made between Ernest Woller-man and Andrew Olson. Witnesseth, Ernest Wollerman hires and employs the said Andrew Olson in his business in his store on North Clark St., Chicago, in the capac...
-Coal Contract
THIS ARTICLE OF AGREEMENT, Made the 1st day of July A. D., 1908, between Franklin A. Miller of the City of Chicago, County of Cook and State of Illinois, party of the first part, and William Nash of C...
-Contract For Party-Wall
THIS AGREEMENT, Made this 1st day of July, A. D. 1908, Between George Wallace, party of the first part, and Henry G. Howard, party of the second part. Witnesseth, That whereas, the said George Wallac...
-Contract For Warranty Deed
ARTICLES OF AGREEMENT, Made and concluded the 27th day of June, in the year of our Lord One Thousand Nine Hundred and Eight. Between Arthur Johnson, party of the first part, and Henry S. Smith, party...
-Articles Of Agreement. Lout Form
ARTICLES OF AGREEMENT, made this 20th day of June in the year One Thousand Nine Hundred and Nine. Between Andrew L. Jones, of Chicago, in the County of Cook, and State of Illinois, of the First Part,...
-Building Contract
Short Form. BUILDING CONTRACT, Made this 20th day of June, One Thousand Nine Hundred and Nine, by and between Andrew L. Jones of Chicago, and State of Illinois, of the First Part, and Partick T. Crow...
-Short Blank General Form Of Contract
CONTRACT, Made and concluded the........... day of................................One Thousand Nine Hundred and............................, by and between.............................. ...............
-Real Estate Sale Contract
THIS MEMORANDUM WITNESSETH, That Arthur. R. Jones hereby agrees to Sell, and William L. Stewart agrees to PURCHASE, at the price of three thousand dollars, the following described real estate, situate...
-Table of Cases Cited
Table of Cases, cases cited in sixth subject - Contracts Adams vs. Adams (26 Ala., 272), 140. Adams vs. Adams (25 Minn., 72), 124. Adams et al. vs. Lindsell et al. (1 Bramwell & Aldereon, 681), 26,...
-Table of Cases Cited. Part 2
Cork, in re Ry. (Law Rep., 4; 4 Ch., 748-762), 89. Cowley vs. Patch (120 Mass., 137), 129. Cox vs. Cox, (Peck, 443), 54. Coyne vs. Weavey (84 N. Y., 386), 140. Crawford vs. Millspaugh (13 Johns, 8...
-Table of Cases Cited. Part 3
Harsh vs. Klepper (28 Ohio, St. 200), 153. Hartford vs. Street (46 Iowa, 594), 153. Haskins vs. Royster (70 N. C, 601), 128. Havana Drill Co. vs. Ashurst (148 I11., 115; 35 N. E., 175), 82. Hayes ...
-Table of Cases Cited. Part 4
Morse vs. Woodworth (155 Mass., 233, 250; 29 N. E., 525; N. E. 1010), 159. Mowatt vs. Wright (1 Wend., 355), 187. Muldon vs. Whitlock (1 Cowp., 290), 143. Murray vs. Carlin (67 I11., 286), 22. Murray...
-Table of Cases Cited. Part 5
Siboni vs. Kirkman( I. M. & W., 417 s. c. 4 M. & W., 339), 132. Simonson vs. Kissick (4 Daly., 143), 52. Skinner vs. Skinner (38 Neb., 756), 196. Smalley vs. Mitchell (110 Mich., 650), 68. Smart vs. C...
-Table of Cases Cited. Part 6
Abby vs. Chase (6 Cush., (Mass.), 56), 237. Achover vs. Matthews (38 Me., 173), 239. Adams vs. Boise (24 Iowa, 96), 233. Aetna Insurance Co. vs. Alton City Bank (25 I11., 321), 239. Ahrens vs. Bak...
-Table of Cases Cited. Part 7
Matthews vs. Hamilton (23 I11., 470), 221. Matthews vs. Soule (12 Neb., 398), 230. Maxey vs. Heckelton (44 I11., 438), 223. May vs. Mitchell (5 Humph (Tenn.), 365), 230. Menkins vs. Lighter (18 I1...







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