Vendee with the difference between the contract price and the

amount received on the re-sale. This agency arises " by

operation of law," and can be defeated by the vendee only by

taking and paying for the goods. ^

В§ 59. Other illustrations.

The doctrine of agency by necessity has been extended in

some modern cases to relations unknown to the common law.

The most important instance is that of the employment of

medical attendance in railway accidents. Is a railway com-

pany liable for services rendered by a physician in the care of

injured servants or passengers, where the services are ren-

dered at the request of (say) a conductor ? It is held on the

one side that it is, on the ground that the emergency creates

an agency by necessity in favor of the highest railway official

on the scene of the accident or within reach by reasonable

means of communication.^ But this conclusion is denied in

other jurisdictions.^ The grade of the officer may determine

1 Pike V. Balch, 38 Me. 302; Gaither v. Myrick, 9 Md. 118; Butler v.

Murray, 30 N. Y. 88 ; post, В§ 116.

2 Dustan v. McAndrew, 44 N. Y. 72; Benjamin on Sales (6th ed.),

§§ 782-795, and American note.

3 Terre Haute, &c. R. v. McMurray, 98 Ind. 358 ; lb. v. Stock^Yell,

118 Ind. 98; Toledo, &c. R. v. Mylott, lud. App. 438; Indianapolis,

&c. R. V. Morris, 67 111. 295.

* Sevier v. Birmingham, &c. R., 92 Ala. 258; Peninsular R. v. Gary,

22 Fla. 356; Tucker v St. Louis, &c. Ry., 54 Mo. 177. See Marquette,

&c. R. V. Taft, 28 Mich. 289, where the court was evenly divided. And

see Godshaw v. Struck, (Ky.) 58 S. W. 781; Central of Georgia R. v.

Price, 106 Ga. 176.

76 FORMATION OF AGENCY.

the question, but if so, it must be on the ground of assent

and not of necessity.^

The recent English case of Gwilliam v. Twist ^ is an

interesting one upon the question of a servant's acquiring

authority by necessity. The driver of an omnibus belonging

to defendants became intoxicated while on duty and was

taken from his seat by a policeman. A man who happened

to be standing near, volunteered to drive the omnibus to the

defendants' yard, and the driver and conductor acquiesced,

the former warning him to drive carefully. The volunteer in

negligently turning a corner ran over and injured })laintiff,

who brought action for damages against the defendants,

owners of the omnibus. The trial court held, with consider-

able hesitation, that the defendants were liable for the injury,

placing its decision upon the ground of agency by necessity ;

but the Court of Appeal reversed the decision on the ground

that the necessity did not sufficiently appear, since the defend-

ants might have been communicated with, and left open the

question whether, if there had been an actual necessity, the

defendants would have been liable.^

^ Langan v. Great W. Ry., 30 L. T. x. s. 173; Swazey v. Union Mfg.

Co., 42 Conn. 556.

2 1895, 1 Q. B. 557; on appeal, 1895, 2 Q. B. 81.

8 See also Sloan v. Central Iowa Ry. Co, 62 Iowa, 728; Fox v. Chi-

cago, &o. Ry. Co., 86 Iowa, 308. See;;o^/, §§ 239-240.

TERMINATION OF AGENCY BY ACT OF THE PARTIES. 77

CHAPTER Yl.

TERMINATION OF THE RELATION.

В§ 60. Ways in which relation may be terminated.

The relation of principal and agent may be terminated, by

various methods, and for convenience of treatment, these

methods may be classified as follows : (1) by bilateral act ;

(2) by unilateral act ; (3) by operation of law. But to the

general rules governing the termination of the agency by

these means there is an important exception, (4) where the

agency is coupled with an interest or where its revocation

would involve the agent in liability tov:ard third persons.

1. Bt/ Bilateral Act.

В§ 61. By terms of original agreement.

The relation may be limited by the terms of the original

agreement, in any one of the following ways : (1) When the

contract by its terms is to endure only during a certain period

of time, the expiration of that period will dissolve the rela-

tion.i (2) When the parties manifestly contemplate that the

relation shall continue only until the happening of a certain

event, the happening of that event likewise operates as a dis-

solution.2 (3) When the purpose for which the agency was

created is accomplished, either through the instrumentality

of the agent or otherwise, the agent's authority is terminated.^

In every case, it is a question of the intention of the parties,

and such intention, unless expressed by the words of the con-

tract, may be implied from the circumstances of the case.

1 Gundlach r. Fischer, 59 III. 172.

2 Danby v. Coutts, L. R. 29 Ch. Div. 500.

8 Moore v. Stone, 40 Iowa, 259; Short v. Millard, 68 111. 292; Ahern

V. Baker, 34 ]\Iinn. 98.

78 Ti:i:.ML\ATION OF AGENCY

Tims the authority of an attorney engaged to conduct an

action terminates wlicn judgment is rendered.^ An auction-

eer's authority ceases when the sale is consummated.- And a

broker's ceases when the contract of sale is completed.^

4; 62. By subsequent agreement.

Ao-encv depends for its existence upon the contract l)y which

it was created, and consequently a subsequent agreement be-

tween the parties to cancel or rescind their original contract,

terminates the relation. The rescinding contract, of course,

must have the essential element of consideration, but the

abandonment by either party of his rights under the original

contract is sullicient.*

2. By Unilateral Act.

В§ 63. Revocation and renunciation.

Having considered the ways in which the agency may be

terminated by the voluntary act of both principal and agent,

we have now to treat of its termination by the act of one party

alone. This may be effected, (1) by the principal's revoca-

tion of his agent's authority ; (2) by the agent's renunciation

of his authority. Questions as to remedies for breach of con-

tract by either principal or agent are considered hereafter.^

§ 64. Revocation — when possible.