Ity to drive the horse to a designated place, he is a servant in

the performance of that duty, and if he drive the horse negli-

gently to the injury of A., the master becomes liable in tort

for the damage.^

^ 28 Am. L. Rev. 9, 22, citing Chicago, &c. R. Co. v. Ross, 112 U. S.

377, 390.

' "The great and fmitlainental {listiiiction between a servant and an

Introduction. 19

В§ 7. Classification of agents and servants.

Agents are often classified as universal agents, general

agents, and special agents.

A universal agent is said to be one authorized to transact

for his princijial any and all business which can be done

through a representative. Such agencies are rather theoreti-

cal than practical, and a universal agent is, at most, a "gen-

eral agent" in the superlative degree. We may, therefore,

disregard this class of agents.

A general agent is said to be (a) one authorized to act for

his principal in all matters (universal agent), or in all matters

connected with a particular trade or business, or in all mat-

ters of a particular nature, or (b) one whose business or pro-

fession it is to transact for any or all persons a particular kind

of business, as a factor, broker, auctioneer, lawyer, etc.^

A special agent is said to be one authorized to act for his

principal in only a single, specific transaction, such act or

transaction not being in the ordinary course of a trade or pro-

fession which he is followino-.^

Many refinements as to the liability of a principal have

been built upon the distinction between general agents and

special agents. The distinction, however, is a vague one and

often leads to more confusion than it cures. To begin with,

writers do not agree as to the distinction itself, much less as

to its legal effects. One writer makes the distinction to con-

sist in the extent of the representation ; that is, if the agent

represents the principal in a single transaction, he is a special

agent is, that the former is principally employed to do an act for the em-

ployer, not resulting in a contract between the master and a third person,

while the main office of an agent is to make such contract. Servants

may make contracts incidentally, while agents may in the same way

render acts of service. The principal distinction between them, however,

Is as above stated." — Dwight, Persons and Pers. Prop. P. 323. See

Singer Mfg. Co. v. Rahn, 132 U. S. 518; Hand r. Cole, 88 Tenn. 400;

Jones V. Avery, 50 Mich. 326.

1 Sometimes (a) is given as the correct definition, sometimes (b), and

sometimes both (a) and (b).

2 Sometimes the definition is given with, and sometimes without, the

last qualifying phrase.

20 Agency.

agent, while if he represents him in all business dealings of a

particular kind, he is a general agent.^ Another writer finds

the distinction in the source of the discretionary power. If

the agent's powers arc fixed by the terms of his appointment,

he is a special agent, while if his powers are fixed by custom

and usage, he is a general agent."'' Clearly it would be of the

first importance to know which of these views is correct if

anything depended upon the distinction, for they are irrecon-

cilable. If a principal entrusted a cargo of wheat to a factor

to sell, the agent would be a special agent under the first view,

but a general agent under the second. If a principal's liabil-

•ity depends upon the solution of the question whether the

agent is special or general, the conclusions reached would be

exactly opposed to each other. As we shall see later, the

question of the principal's liability can be determined without

involving it in the solution of this preliminary question,^ The

terms special agent and general agent may therefore be dis-

regarded except as terms of convenience to indicate broadly

the scope of the agency. The liability of a principal for the

acts of his agent depends upon the ostensible authority which

he has conferred: in determining this it is often necessary to