If the service was unauthorized but is subsequently ratified

and the benefits accepted by the principal, the agent may,

ordinarily, recover for the services in the same way and to

the same extent as if the service had been originally author-

ized.^ This doctrine must, however, be clearly defined. In

the first place the adoption of the act must be intended as a

ratification in toto, and not merely as an attempt on the part

of the principal to avoid further loss, and in the next place it

must be remembered that what might establish ratification as

between the principal and the third party will not, necessarily,

establish it as between the principal and the agent.^ It is

further necessary to distinguish clearly between ratification

and a subsequent promise to pay for a gratuitous service ; in

the latter case there is no consideration for the promise and

the agent cannot recover.^ With these cautions the doctrine

may be accepted in broad terms.^

В§ 78. Compensation : conditions.

The compensation may be made to depend upon the per-

formance of certain conditions. If so, the performance of

1 Harrington v. Churchward, 29 L. J. Ch. 521 ; Smith v. Leveaux, 1 H.

& M. 123.

2 Post, В§ 91 ; Padwick i'. Stanley, 9 Hare, 627.

8 Gelatt V. Ridge, 117 Mo. 553; Wilson v. Dame, 58 N. H. 392; Dela-

field V. Smith, 101 Wis. 664; Frixione v. Tagliaferro, 10 M. P. C. C. 175;

Keay v. Fenwick, 1 C. P. D. 745.

* Triggs V. Jones, 46 Minn. 277.

6 Allen V. Bryson, 67 Iowa, 591.

« See ante, §§ 48, 49.

96 PRINCIPAL AND AGENT.

the condition is necessary to cstulilish the cUviin to compensa-

tion.^ If, however, the condition he perfoiined the agent is

entitled to his compensation, even though tlie princii)al refuse

to avail himself of the results of the service. This last propo-

sition is illustrated hy the cases where commissions are

promised the agent for the sale of the principal's proi)erty,

or for the securing of a loan. If the agent finds a purchaser

ready, willing and able to purchase on the terms fixed by the

principal, he is entitled to his commission although the prin-

cipal refuse to carry out the sale on those terms, or the sale

falls through from other causes.^ So, if the agent finds one

willing to loan to the principal on the terms fixed by the

latter, the agent has earned his commissi(m although the

principal refuse to accept the loan.^ In such cases the agent

has performed the condition precedent, and the right to

compensation is perfected.

В§ 79. Compensation: revocation of agency by principal.

When the principal wrongfully revokes the agency in

breach of a contract, the agent may : (1) treat the contract

as still in existence and sue for the stipulated compensaticm

as it falls due ;* (2) treat the express contract as rescinded

and sue in quantum meruit for the value of services performed

as upon an implied contract ; В° (3) treat the contract as

broken and sue in damages for its breach.*^

The first remedy is no longer open in most jurisdictions

since it has generally been regarded as contrary to social

economy to permit the agent to remain idle and recover as

for constructive services.' Accordingly it has been held that

1 Green v. Mules, :]() L. J. C. P. 3i:i; Cutter v. rowell. T. R. 320;

Jones V. Adler, 31 Md. 440.

2 Ilorford v. Wilson, 1 Taunt. 12: Lockwood v. Levick, S C. B. n. s.

603; Mo.ses v. Bierlinjr, 31 N. Y. 462; Love v. Miller, .53 Tnd. 21)4.

'^ Fisher v. Drewett, 48 L. J. Ex. 32; Yinton ?;. Baldwin, 8S Tnd. 104.

< Allen V. Colliery Engineer's Co., 196 Pa. St. 512; Strauss v. iSIeer-

tief, 64 Ala. 290; contra, Howard v. Daly, 61 K Y. 362.

6 Prickett /;. Badger, 1 C. B. n. s. 290.

В« Howard r. Daly, 61 N. Y. 362 ; Liddell v. Chidester, 84 Ala. 508.

" Howard v. Daly, 61 N. Y. 362 and cases there cited.

OBLIGATIONS OF PKIXCII'AL. 97

if, after revocation, the agent sues for and recovers one in-

stalment of salary, the judgment in that action is a bar to any

further action on the contract.^ But of course this would

not be so in jurisdictions that admit this form of remedy

under the doctrine of a continuing contract and constructive

service.^

The second form of remedy proceeds upon the theory that

the original express contract is rescinded, and that the prin-

cipal has agreed to pay what the services are reasonably

worth. In such a case the agent is not confined in his

recovery to the original contract price, but may recover the

full reasonable value of his services, as for benefits conferred.^

The third form of remedy is the usual and most effective

one. It proceeds upon the theory that the principal has

committed a breach of the contract to the damage of the

agent, and the latter is allowed to recover whatever damages

he can establish. The right of action accrues immediately

upon the revocation, even if this be before the time for per-

formance has arrived.^ If the action is begun before the

time for performance has arrived, the damages hvq prima facie

the entire stipulated compensation for the term of the hir-

ing ; ^ if the action is begun after the agent has entered upon

the employment, the damages are the salary already earned,

and jjrima facie iho. stipulated compensation for the unexpired

term.*^ To reduce the prima facie damages in either of the

above cases, the principal would have the burden of showing

the probability of the agent's finding similar employment

1 Alie V. Nadeau, 93 Me. 282.

2 Allen V. Colliery Engineer's Co., 196 Pa. St. 512.

3 Keener on Quasi-Contracts, p. 300; Derby v. Johnson, 21 Vt. 17.

4 Hochster v. De la Tour, 2 E. & B. 678; IToward v. Daly, 61 X. Y.

362; Diigan v. Anderson, 36 iMd. 567; Roehm v. Horst, 178 U. S. 1.

Contra, Stanford v. IVIcGill, 6 N. Dak. 536.

6 Ibid.

6 Cutter V. Gillette, 163 Mass. 95; Richardson v. Eagle Machine

"Works, 78 Ind. 422 ; James v. Allen County, 41 Ohio St. 226. The

theoi'y that the agent can recover dama^ies only down to the time of the

trial has some support (Gordon v. Brew>ter, 7 Wis. 353; Sumner v. Con-

haim, 54 N. Y. Supp. 146), but is contrary to the weight of authority.

98 PRINCIPAL AND AGENT.

(Jui'ing the unexpired term,^ and the proof must be weighty

enough to convince the jury of such reasonable probability.

If the action is not brought until after the expiration of the

prescribed term, the measure of damages is i^r una facie the

unearned stipulated compensation, but the principal may

show in mitigation of damages what the agent has earned

during that time, or what he might have earned had he

acted prudently. 2 The right of the principal to diminish the

damages by showing what the agent might earn proceeds on

the general doctrine of the hiw that upon a breach of con-

tract it is the duty of the injured party to act prudently and

diligently to prevent loss to himself. The application in the

case of agency involves the question as to the ditty of the

agent to seek other employment. He is bound to exercise

reasonable care to that end, but he is not bound to accept a

different employment,^ nor in a different locality,* nor with

an employer against whom reasonable objections would lie.В°