Itous relationship is created between the agent and the sub-

agent ; in the second case, a privity is created between the

j)riucipal and the sub-agent, provided, of course, the agent,

was expressly or impliedly authorized to make such an agree-

ment for the employment of the sub-agent in behalf of his

principal.'* This subject is more fully discussed hereafter,

more particularly with reference to the liability of the princi-

pal or agent for the conduct of the sub-agent.^

§ 26. Form of contract. — "Writing or seal.

An agent may be appointed by oral communication, by

writing, or by an instrument under seal. As a general rule

the contract of agency may be by parol. The cases where it

must be in writing or under seal may be summarized as

follows : —

(1) Where by the terms of the contract it is not to be

performed within a year, the contract is required by the

Fourth Section of the English Statute of Frauds to be

in writing.^ If the contract may be performed within a

1 Williams v. School District, 21 Pick. (Mass.) 75.

2 McNeil V. Boston Chamlier of Commerce, 154 Mass. 277.

8 r.ank V. Town, .52 Vt. 87 ; Williams v. Scliool Dist., 21 Pick. (:\rass.) 75.

* llaluptzok V. Great Northern Ry. Co., 55 Minn. 410; De Bus.sche v.

Alt, 8 Ch. Div. 286.

6 Post, §§ 92-95, 147, 160.

8 Hinckley v. Southgate, 11 Yt. 428; Tuttle v. Swett, 31 Me. 555;

Board V. Howell, (Ind.) 52 N. E. 769, 21 Ind. App. Ct. Rep. 495.

BY AGKEEMENT. 37

year,^ or if it expressly contemplates a continf^ency, as death,

which would terminate it within a year,^ it need not be in writ-

ing. Whether both parties must sign in order to have mutual

obligations and thus avoid the defence of want of mutuality has

been variously decided,^ but the weight of authority seems to

be that mutuality is not necessary in such cases.*

(2) In some States the Statute of Frauds provides that,

where a contract is required to be in writing and signed by

the party to be charged, or his agent thereunto duly author-

ized, such authority to the agent shall be in writing/^ Unless

such express provision is added in the statute, the agent may

be appointed orally although he must execute his authority in

writing.^ In these cases an auctioneer or broker may act for

both parties in signing the required memorandum, but one

party cannot act for the other.'^

(3) Where the contract between the principal and the third

party is required to be under seal, the authority of the agent

to execute the instrument must itself be under seal.^ A con-

tract for the sale of the lands need not be under seal, although

it must, under the Statute of Frauds, be in writing ; ^ but a

conveyance of the lands must be under seal, and the agent's

authority to execute the conveyance must also be under seal.

So also an authority to execute any specialty, as a bond, must be

evidenced by a sealed instrument.^^ To this rule there are some

1 Roberts v. Rockbottoin Co., 7 Mete. (Mass.) 46; Russell v. Slade,

12 Conn. 455; Moore v. Fox, 10 Johns. (N. Y.) 244; Scribner i'. Flagg

IMfg. Co., 175 Mass. 536.

2 Riddle V. Backus, 38 Iowa, 81 ; Updike v. Ten Broeck, 32 N. J. L.

105; Jilson v. Gilbert, 26 Wis. 637; Eiseman v. Schneider, 60 N. J. L.

291.

8 See Wilkinson v. Heavenrich, 58 Mich. 574.

4 Wood, St. of Frauds, В§ 405.

6 See Stimson's Amer. Statute Law, Vol. I. В§ 5201.

В« Johnson v. Dodge, 17 111. 433; Long v. Hartwell, 34 N. J. L. 116.

' Ante, В§ 23.

8 Berkeley v. Hardy, 5 B. & C. 355, 8 D. & R. 102 ; Hanford v. Mc-

Nair, 9 Wend. (N. Y.) 54; Gordon v. Bulkeley, 14 Serg. & R. (Pa ) 331.

9 Long V. Hartwell, 34 N. J. L. 116.

^В° Gordon v. Bulkeley, supra ; Hibblewhite v. ^McMorine, 6 Mees. & W.

200.

38 FORMATION OF AGENCY

apparent exceptions. First, if the specialty be executed by

the agent in the presence of the principal, the agent's author-

ity need not be under seal.^ and the grantee may sign the

grantor's name provided the latter afterward acknowledges

and delivers the deed.'-^ Second, if the seal is superfluous in

the sense that the instrument though actually sealed need not

be scaled in order to be valid, the seal may be disregarded and

a parol authority will be sufficient.^ Third, if a corporation

executes a specialty the agent's authority to execute it and

affix the corporate seal need not itself be under seal; it is

enough that the authority has been conferred by a vote of the

directors.* Fourth, the rule has also been greatly relaxed in

the case of partnerships, and many jurisdictions have held that

one partner may be authorized by parol to execute specialties

in the partnership name.^

(4) If a deed be executed by the grantor, but with blanks

left in it, may the grantor by parol authorize an agent to fill

the blanks and deliver the deed ? It is settled that a parol

authority is sufficient for the delivery of a deed.^ The older

authorities denied, however, that a parol authority was suffi-

cient for the filling of blanks in a deed." The modern

authorities in the United States are strongly in favor of the

view that where the agent acting under parol authority fills

the blanks before or at the time of delivery, the deed is effect-

ive as delivered.^ It is very generally held that this is so in

cases where the grantee is ignorant that such parol authority

1 Gardner v. Gardner, 5 Cush. (Mass.) 483; Eggleston v. Wagner, 46

Mich. 610; Jansen v. INIcCahill, 22 Cal. 563; King v. Longnor, 4 Barn

& Adol. 647.

2 Clou-h V. Clongh, 7-3 Me. 487.

3 Worrall v. Munn, .5 N. Y. 229; Alcorn's Exec. v. Cook, 101 Pa. St.

209; Wagoner ^^ Watts, 44 N.J. L. 126; Thomas r. Joslin, 30 Minn.

388. Contra, Wheeler v. Nevins, 34 Me. 54 ; Pollard c Gibbs, 55 Ga. 45

4 Bun-ill V. Nahant Bank, 2 Met. (Mass.) 163; Howe v. Keeler, 27

Conn. 538 ; Fitch v. Lewiston Steam Mill Co., 80 Me. 34.

6 Burdick on Partnership, pp. 188-193; Smith v. Kerr, 3 N. Y. 144.

• Parker i-. Hill, 8 Met. (Mass.) 447.

' Slieppard's Touchstone, 54; Ilibblewhite v. McMorine, 6 Mees. & W.

200.

8 Cribbeu v. Deal, 21 Ore. 211, and cases there cited.

BY AGREEMENT. 39

has been conferred and exercised, the decision in such cases

being put upon the ground of estoppel.^ This doctrine is not

applicable to a case where a married woman who can not ap-

point an agent to execute the deed, but must execute and

acknowledge it in person, executes and acknowledges a

deed with blanks, and seeks to authorize an agent to fill the

blank S.2

(5) In England, subject to various exceptions, it seems to

be the rule that all appointments of agents by corporations,

other than trading corporations, must be under the corpo-

rate seal.2 In the United States no such rule seems to be

recognized.*

В§ 27. Legality of object.

A contract of agency must not contemplate an illegal

object. Accordingly a contract of agency for dealing in

futures where the object is to bet on the rise or fall of prices,^

or for lobbying,*^ or selling smuggled goods," or for procuring

a marriage contract,^ or for improperly influencing the action

of a third person, as by assuming to advise as a friend when

the adviser is secretly the agent of one who is to profit by the

advice,^ or for any other object opposed to law, or public

policy, or good morals, is unenforceable.^^ The whole matter

is a part of the general law of contract.^^

1 Phelps ('. Sullivan, 140 Mass. 36; Campbell v. Smith, 71 N. Y. 26.

Contra: Upton v. Archer, 41 Cal. 85.

2 Drm-y v. Foster, 2 Wall. (U. S.) 24.

8 Austin V. Guardians of Bethnal Green, L. R. 9 C. P. 91 ; Arnold

V. Poole, 4 M. & G. 860 ; Sutton v. Spectacle Makers Company, 10 L. T.

Rep. 411.

4 1 IVIorawetz on Corp. В§ 338; Bank v. Patterson, 7 Cranch, 299.

6 Irwin r. Williar, llO U. S. 499.

6 Trist V. Child, 21 Wall. (U. S.) 441 ; IMills v. Mills, 40 N. Y. 543.

7 Armstrong v. Toler, 11 Wheat. (U. S.) 258.

8 Duvall ('. Wellman, 124 N. Y. 15G.

9 Byrd v. Hughes, 84 Til. 174; Bollman v. Loomis, 41 Conn. 581.

w Stout V. Ennis, 28 Kans. 706 ; Nichols v. Mudgett, 32 Vt. 546 ; Keat-

ing V. Hyde, 23 Mo. App. 555 ; White v. Equitable, &c. Union, 76 Ala. 251 ;

Elkhart County Lodge v. Crary, 98 Ind. 238. See post, В§ 83.

^1 Huffcut's Anson on Cout. pp. 225-273.

40 rORMATION OF AGENCY

2. Gratuitous Agency.

В§ 28. Gratuitous agency as between principal and third person.

The question of gratuitous agency resolves itself into two

parts : (1) as to the liability of a principal to third persons

where he acts through a gratuitous agent; (2) as to the lia-

bility of the agent to the principal or to third persons where

the agent serves without compensation.

The first phase of the question affords little difliculty. One

who acts through another is liable to third persons in the

same way as if he had acted without the intervention of an

agent, and so far as the tliird person is concerned it is wholly

immaterial whether the agent acts for the principal for com-

pensation or gratuitously.^ The sole inquiry is, had the

agent authority to act for the principal ? If so, the princijjal

is bound by the agent's act within the apparent scope of the

authority. But the doctrines as to the competency of the

principal apply to a gratuitous agency in the same way as to

an agency by contract.'-^

В§ 29. Gratuitous agency as between principal and agent.

It is a fundamental dogma of the English law that a con-

sideration is necessary to support a promise. Accordingly a

gratuitous promise by an agent to perform an act for the prin-

cipal is unenforceable. If the agent enters upon the perform-

ance of the act, then he may be liable for the negligent manner

in which he performs it, either, as is sometimes said, because

the consideration then arises from the fact that the principal

suffers a detriment in parting with his control over the su])ject-

matter of the agency, or, as is more accurately said, because

one who voluntarily meddles with the property rights or quasi

pro])erty rights of another is bound to act as an ordinarily

])rudcnt man would act under like circumstances.^

The main difference therefore between an agency by con-

1 Haluptzok r. Great Northern Ry., 55 Minn. 446.

2 Ante, §§ 14-22.

В» Thorne v. Deas, 4 Johns. (X. Y.) 84; Wliitolioad v. Greetham, 2 Bing.

i64; rollock on Gout. (Gth ed.) pp. 170-171 ; 2 Law Q. Rev. 33.

BY AGREEMENT. 41

tract and a gratuitous agency lies in the fact that the former

may be enforced while it remains unacted upon by either

party, while the latter can be enforced only when it has been

acted upon by the agent, and he has, by his act, involved the

interests and rights of the principal. But of this hereafter.^

1 Post, §§ 97, 98.

42 FOKMATION OF AGENCY

CHAPTER III.

FORMATIOiN OF THE RELATION BY RATIFICATION.

В§ 30. Meaning of the term.

(1) Ratification generally. The assent of the principal to

the act of the agent may be given either before the act is per-

formed, or after it is performed. When given before it is

performed, the assent is in the nature of an appointment of the

agent for the performance of the act as explained in the pre-

ceding chapter. When given after the act is performed, it is