Innocent, which induces the principal to ratify, will involve tlie

agent in liability to his principal for loss or damage which ac-

crues because the fact is otherwise than stated.^ Moreover,

the same conduct which might amount to ratification as be-

tween the principal and the third party will not always be so

construed in favor of the agent in order to relieve him from

liability for his own wrongful act.*

В§ 49. Effect as between agent and third party.

An agent after ratification of his unautliorized act by his

principal is in the same relation to the third party as if the

acts had been previously authorized. The principal alone is

generally liable on a contract which he has ratified,^ though,

if the third party is free to accept or reject the ratification and

chooses to reject,^ the agent would be liable on his warranty

of authority.''' But since prior authority will not relieve an

agent from liability for a tort, obviously subsequent ratification

в– will not ; ^ although the agent may claim indemnity against

the principal if sued for the tort in like case where he could

under prior authority.^

1 Spittle V. Lavender, 2 Brod. & Bing. 452 ; Risbonrg v. Bruckner,

3 C. B. N. s. 812; Gelatt v. Ridge, 117 Mo. 553.

2 Pickett V. Pearsons, 17 Vt. 470 ; "Woodward v. Suydam, 11 Ohio, 360;

Bray v. Gunn, 53 Ga. 144.

3 Bank of Owensboro v. Western Banli, 13 Bush (Ky.), 526.

* Triggs V. Jones, 46 Minn. 277.

^ Story on Agency, В§ 244.

^ As to which see ante, В§ 38,

7 See post, % 183.

8 Josselyn v. McAllister, 22 Mich. 300 ; Richardson v. Kimball, 28 INIe.

463 ; Wright v. Eaton, 7 Wis. 595.

В» Post, В§ 85.

62 FORMATION OF AGENCY

CHAPTER TV.

FORMATION OF THE RELATION BY ESTOPPEL.

В§ 50. Agencies not resting on actual assent.

The agencies by agreement and by ratification rest on as-

sent. The agent is either appointed by the j)i-incipal to carry

out tlie will of the latter, or the latter adopts the act of the

agent as an expression of his own will. The agencies we have

now to consider do not rest upon assent, but are created by

the law on grounds of public policy or convenience, irrespective

of the consent of the principal. In these agencies the prin-

pal has either given no authority whatever, or has not given

an authority extensive enough to warrant the act done by the

agent. Yet if there be ground to estop the principal from

denying the authority, or if there be an unforeseen necessity

urgent enough to enlarge the authority, the principal may be

held liable for the agent's act. And first of estoppel.

В§ 51. Meaning of estoppel.

Estoppels may arise (1) from a record, (2) from a deed, (3)

from a contract, or (4) from a misrepresentation, which mis-

representation may be either by words or by conduct. Es-

toppels arising from contract or from misrepresentation are

usually termed estoppels in pais, a phrase frequently used but

conveying in itself no very definite notion. In the law of

agency we are mainly concerned with estoppels arising fi'om

misrepresentations.

Misrepresentation may be ])y words or by conduct, and may

be made by the person sought to be estopped acting alone or

by a third person who is aided therein by the act or omission

of the person sought to be estopped. For example, the defend-

ant represents that he is a member of a firm : he is estoi)pcd

to deny the truth of his representation.^ The defendant has