Is a question of fact. It is sometimes said that where the

facts are undisputed the question of authority is one of law

for the court; 2 but, in accordance with the general principles

applicable to similar questions, it would seem that this ques-

tion is for the court when the facts are undisinited, and but

one inference can reasonably be drawn from the facts,^ but

that if the facts are in dispute, or if reasonable men might

differ as to the inferences to be drawn from the facts, the

doubt should be resolved by the jury.* If the authority be

contained in a writing upon which X relied, or ought to

have relied, its interpretation is for the court in accordance

with the general rules governing written instruments.^ An

ambiguous authority is construed to cover any act that may

fall within any fair interpretation of it.^

The apparent scope of an agent's authority is such authority

as a reasonably prudent man, in like circumstances with X

and with like means of knowledge and information, would

naturally infer the agent to possess. The cases are numerous

and decisive to the point, that the third person may prudently

conclude that the principal intends the agent to exercise those

1 Pickering v. Busk, 1.5 East, 38; Rimell r. Sampayo, 1 C. & P. 254;

Jetley v. Hill, 1 C. & E. 2:59; Daylight Burner Co. v. Odlin, 51 N. II. 50;

Johnson v. Hurley, 115 Mo. 513.

2 (Julick V. Grover, 33 N. J. L. 4G3.

8 Spooner v. Browning, 1808, 1 Q. B. 528; Franklin Bank Note Co.

V. Mackev, 158 N. Y. 140.

4 Seiple V. Irwin, 30 Pa. St. 513; Huntley v. I\Iatbias, 90 X. C. lOl.

<В» Savings Fund See. v. Savings Bank, 36 Pa. St. 498.

8 Ireland v. Livingston, L. R. 5 II. L. 395; Very v. Levy, 13 How.

(U. S.) 345.

CONTRACT FOR DISCLOSED PRINCIPAL. 131

powers which ordinarily and properly belong to the character

in which the principal holds the agent out to the world.

" When a general agent transacts the business entrusted to

him, within the usual and ordinary scope of such business, he

acts within the extent of his authority ; and the principal is

bound, provided the party dealing with the agent acts in good

faith, and is not guilty of negligence which proximately con-

tributes to the loss." ^

(2) Relying upon representation. In order to work an

estoppel against the principal based upon a holding out of the

agent as possessed of authority, it is necessary that the third

person should have relied in good faith and prudently upon

the appearance of authority thus created.^ Thus if a principal

permits an agent who has loaned money for him to retain the

bond and mortgage, he vests the agent with apparent authority

to receive payment, and any payment made by the mortgagor

relying upon the appearance of authority thus created will

bind the principal ; but if the mortgagor makes a payment to

the agent after the latter has parted with possession of the

documents, with or without the knowledge of his principal,

such payment will not bind the principal, because the

mortgagor is not then relying upon an existing a])pearance of

authorityw^ In any case where the third person may not

prudently infer that the agent possesses the powers exercised,

he is negligent, and it is his own negligence, and not the

conduct of the principal, that is the proximate cause of his

loss.* If the third person knows the limitation upon the

agent's authority, he does not iu good faith rely upon any

apparent authority, and cannot hold the principal.^ But he

1 Wheeler v. McGuire, 86 Ala. 402; Butler v. Maples, 9 Wall. (U. S.)

766; Munn v. Commission Co., 15 Johns. (N. Y.) 44; Hatch v. Taylor,

10 N. H. 538.

2 Small V. Attwood, 1 Younge, 407 ; Freeman v. Cooke, 2 Ex. 654 ;

Proctor n. Bennis, 36 Ch. Div. 740.

"-в–  'в– '' . .'*^ВЈ-S^^^isВЈj^?"*^w^W> 120 N. Y. 274.

' 4 llazeftine v. Miller, 44 Me. 177; Gulick v. Grover, 33 N. J. L.

463.

6 CoUen V. Gardner, 21 Beav. 540; Peabody v. Hoard, 46 111. 242.

132 riUNClPAL AND THIRD PARTY.

is not bound to search for secret limitations upon an osten-

sible authority.^

J; 104. Same. — General and special agents.

It is oftrn said that tlie rules as above stated ai)])ly to a

general agency, but not to a special agency .^ "The dis-

tinction is well settled between a general and a special agent.

As to the former, the principal is responsible for the acts of

the affent, when acting within the general scope of his author-

ity, and the public cannot be supposed connusant of any

private instructions from the principal to the agent; but

в– where the agency is a special and temporary one, there the

principal is not bound if the agent exceeds his employment." ^

"The acts of the former bind the principal, whether in

accordance to his instructions or not; those of the latter do

not, unless strictly within his authority." * "A special agent

cannot bind his principal in a matter beyond or outside of the

power conferred, and the party dealing with a special agent

is bound to know the extent of his authority." ^ And many

other cases use language to the same effect.

It is believed, however, that these statements as to the

distinction between general and special agents are misleading.

The difference between a general agent and a special agent

is not absolute but relative. It is a difference in degree and

not in kind. In either case the principal by authorizing the

agent to do a particular act or class of acts vests him ostensibly

with authority to do what is ordinarily incidental to the

execution of the power. In either case the burden of proof

is on the person dealing with the agent to show that the

agent had the authority, real or ostensible, which he assumed

to exercise.^ In bearing this burden the proponent may pro-

^ Byrne i-. Ma.s.sasoit Packing Co., 137 ]\Ia.ss. 313; Bentley v. Doggett,

51 AVi.s. 224. Compare Baines v. Ewing, 4 H. & C. 511.

2 For definitions, see ante, В§ 7; Whitehead v. Tuckett, 15 East, 408 ;

Fenn v. Harrison, 3 T. R. 762.

8 Mimn r. Commission Co., 15 -Tolms. (N. Y.) 44, 54.

* Rossiter r. Rossiter, 8 Wend. (X. Y.) 497.

6 r,lack\vell v. Ketcham, 53 Ind. 186.

' Pole V. Leask, 33 L. J. N. s. Ch. 155.

CONTRACT FOR DISCLOSED PRINCIPAL. 133

ceed more easily in the case of an agent whose incidental

powers are naturally or necessarily extensive, than in the case

of one whose incidental powers are naturally or necessarily

limited. But to assert that in the one case the third person

need not inquire whether what appears to be true is true,

while in the other he must so inquire, is to set an artificial

and inconvenient limit to the operation of the salutary doc-

trines of estoppel. The most that can justly be asserted is

that the third person should know that an agent, not acting