Is not responsible for the veracity and accuracy of the agent's

statements.^

Where the authority is contained in an instrument not

under seal, or is conferred orally, the authority is construed

more liberally, that is, while evidence of usage or attendant

circumstances may not be allowable to vary an authority

under scal,^ such evidence may be received to extend an

authority not under seal.'

Notice of the actual limits of an agent's powers j)revcnts

the one having such notice from claiming to rely upon osten-

sible authority. Thus by statute a signature by " procura-

^ Peiifold V. Warner, supra ; Weare v. Wilhains, S.l Iowa, '2oS.

2 ;j5 Am. St. Rep. 593, citing Fay v. Wiuchester, 4 Met. (Mass.) .513;

Bigelow i: Livingston, 28 Minn. 57.

3 Attwood i: Mannings, 7 B. & C. 278; Craighead r. Peterson, 72

N. Y. 279; Camden, &c. Co. v. Abbott, 41 X. J. L. 2."i7. But see North

River Bank v. Ayniar, 3 Hill (X. Y.), 2G2.

* Ireland v. Livingston, L. R. 5 II. L. 395 ; Minnesota, &c. Co. v.

Monta'iue, 65 Iowa, 67.

в– ^ Haines c. Ewing, 4 II. & C. 511 ; Mussey v. Beecher, 3 Cush. (Mass.)

511. See pout, §§ 151-157.

В« Hogg r. Snaith, 1 Taunt. 317; Delafield v. Illinois, 26 Wend.

(N.Y.) 192. Such evidence may be used to interpret the instrument.

Reese v. Medlock, 27 Tex. 120; Frink v. Roe, 70 Cal. 29G.

" Pole r. Leask, 28 Beav. 562; Entwisle r. Dent, 1 Ex. 812; Piiillips

V. Moir, 69 111. 155; Lyon v. Pollock, 99 U. S. 668.

CONTRACT FOR DISCLOSED PRINCIPAL. 137

tioii " operates as notice that the agent has but a limited

authority to sign negotiable instruments, and the principal is

bound only in case the agent in so signing acted within the

actual limits of his authority.^

(2) Powers incidental to those conferred. — The implied

authority of the agent includes the power to use all means

reasonably necessary to the accomplishment of the object of

the agency. 2 What means are thus reasonably necessary,

seems to be a mixed question of law and fact. " Sometimes

the powers are determined by mere inference of law; in other

cases by matters of fact ; in others by inference of fact ; and

In others still, to determine them becomes a question of mixed

law and fact." ^ The nature and extent of such incidental

powers are varied and beyond the province of this work to

enumerate in detail. A few illustrations must suffice. An

agent employed to travel and sell goods has the implied power

to hire a horse for such purpose."^ And the principal is liable

for the horse hire even though he has furnished the agent

with money to pay for it, and has forbidden the agent to hire

it on credit.^ But the manager of a hotel has no implied

authority to hire horses for the use of guests and render the

principal liable for their safe-keeping and return.^ An agent

authorized to sell goods has implied power to warrant the

goods in such manner as is usual in such sales, but not the

power to give an unusual warranty.''' And the weight of

authority is now in favor of the proposition that an agent

1 Negotiable Instruments Law, В§ 21 (N. Y. В§ 40) ; English Bills of Ex-

change Act, В§ 2.5; Stagg v. Elliott, 12 C. B. x. s. 373; The Floyd Ac-

ceptances, 7 Wall. (U. S.) 666; Nixon r. Palmer, 8 N. Y. 398.

2 Pole V. Leask, 28 Beav. 562; Beaufort v. Neeld, 12 C. & F. 248;

Durrell v. Evans, 1 H. & C. 174 ; Mullens v. Miller, 22 Ch. Div. 194 ;

Wheeler v. McGuire, 86 Ala. 398; Bentley v. Doggett, 51 Wis. 224.

3 Huntley v. Mathias, 90 N. C. 101, 104.

* Huntley v. INIathias, supra.

^ Bentley v. Doggett, supra.

6 Brockway v. Mullin, 46 N. J. L. 448. See also Wallis Tobacco Co.

V. Jackson, 99 Ala. 460.

T Benj. on Sales (Bennett's ed. 1892), В§ 624, and notes pp. 629-630;

cases cited post, В§ 107; Upton v. Suffolk County Mills, 11 Cush. (Mass.)

586.

138 PKINCIPAL AND THIRD PAItTV.

autliorized to sell and convey real property may, nnlcss

specially restricted, sell and convey with general warranty .^

An agent authorized to sell goods has implied power to

receive payment for the goods provided he has ])Ossession

of them, and is authorized to deliver; but ii" he has not

possession there is no implied authority to receive payment.^

An agent has implied power to borrow money only where the

transaction of the business confided to him absolutely requires

the exercise of the power in order to carry it on ; it will not

be implied merely because its exercise would be convenient

or advantageous.^ Some agents have, however, a customary

power to borrow money, as cashiers of banks'* and masters of

ships,^ The power to make or indorse negotiable paper will

not ordinarily be inferred, or regarded as incidental to other

powers.^

(3) Powers annexed hy custom. Custom or usage may

aid materially in determining the authority of an agent.

An agent may be one who follows an established or recog-

nized trade, })rofession, or business, or he may be one not

following such a recognized or customary business. Where

a principal appoints an agent who is customarily governed

by established usages, it is presumed that he intends such

usages to govern the agent in the transaction in ques-

1 Le Roy v. Beard, S How. (U. S.) 451 ; Schultz v. Grillin, 121 N. Y.

291.

••2 Iliggins V. Moore, 34 N. Y. 417; Butler r. Dorman, 68 Mo. 298;

Seiple r. Irwin, 30 Pa. St. 513.

8 Bickford v. Meiiier, 107 N. Y. 490; Consolidated Nat. Bk. v. Pacific,

&c. Co., 95 Cal. 1; Heath c Paul, 81 Wis. 532; Bryant v. Bank, 1893,

App. Cas. 170.

* Crain v. First N. B., 114 111. 510; Barnes v. Ontario Bk., 19 X. Y.

152.

* The power of masters of ships to borrow money rests strictly on

imperative nece.ssity, which, it seems, must be shown to exist in order to

charge the principal. McCready v. Thorn, 51 N. Y. 454; Stearns v. Doe,

12 (iray (Mass.), 482. Cf. Arey v. Hall, 81 Me. 17. Post, В§ 116.

G Abel r. Sutton, 3 E.-^p. 108; Kilgour v. Finlyson, 1 H. Bl. 155;

Burmester v. Norris, 6 Ex.796; In re Cunningham, 36 Ch. Div. 532;

New York Iron Mine v. First N. B., 39 Mich. 644; Jackson v. Nat. Bk.,

92 Tenn. 154. Cf. Edmunds v. Bushell, L. 11. 1 Q. B. 97.

CONTRACT FOR DISCLOSED PRINCIPAL. 139

tion.^ It is upon this consideration that the courts reach the

conclusion that a bank cashier has power to borrow money ;2

or a factor or broker to sell on credit ; ^ or an attorney to con-

trol the procedure of an action at law.* Where the principal

appoints an agent who does not follow a customary calling,

such agent, in the carrying out of the objects of the agency,

has implied authority to deal according to the usages of the

particular business confided to him, or of the particular place

in which the business is to be done.^ This doctrine as to

custom is well illustrated in the case of stock-brokers who

buy and sell stock on margins, or otherwise, in behalf of

customers. The customer is bound by the customs of the

market in which he deals, and if the custom permits the

broker to repledge the stock for his own debt, the princi-

pal will be bouud by the custom.^ The doctrine finds a

further illustration in the much mooted question as to the

power of an agent to warrant goods sold for his principal.^

The usage must be reasonable, not contrary to positive law,

well-established, and publicly known ;S or if it be not gen-

eral it must be known to the principal.^ Even when a

usage fulfils all necessary conditions it will not prevail- as

against positive instructions given to the agent.^'' It is nec-

1 Young V. Cole, 3 Bmg. N. C. 724 ; Howard v. Sheward, L. R. 2 C. P.

148; Hibbard v. Peek, 75 Wis. 619; Adams v. Ins. Co., 95 Pa. St. 348.

2 Crain v. First N. B., 114 111. 516.

3 Boorman v. Brown, 3 Q. B. 511; Pinkham v. Crocker, 77 Me. 563;

Daylight Burner Co. v. Odlin, 51 N. H. 56.

" Strauss v. Francis, L. R. 1 Q. B. 379; Moulton v. Bowker, 115

Mass. 36.

5 Dingle v. Hare, 7 C. B. n. s. 145; Pelliam v. Hilder, 1 Y. & Coll.

C. C. 3; Pollock v. Stables, 12 Q. B. 765; Pickert v. Marston, 68 Wis.

465.

6 Skiff V. Stoddard, 63 Conn. 198.

T Post, В§ 107; Brady v. Todd, 9 C. B. N. s. 592; Howard v. Sheward,

L. R. 2 C. P. 148 ; Brooks v. Hassall, 49 L. T. R. 569.

8 Sweeting v. Pearce, 7 C. B. n. s. 449 ; United States v. Buchanan,

8 How. (U. S.) 83; Jackson v. Bank, 92 Tenn. 154; Hibbard v. Peek,

75 Wis. 619.

9 Walls V. Bailey," 49 N. Y. 464 ; Robinson v. Mollett, L. R. 7 H. L.

802.

" Day V. Holmes, 103 Mass. 306.

140 PRINCIPAL AND TIIIRU TAKTY.

cssai'y ill all cases to distiiij^uish between regulations or

customs intended to govern a particular body of dealers (as

stock-brokers) in their relations to each other, and regula-

tious or customs intended to bind outsiders. An outsider

is bound only so far as (he rules or customs are clearly

intruded to aj)|)ly to outsiders.^ In some cases the court

will take judicial notice of the existence of the custom,^ but

generally it is a matter of proof. If sought to be established

by proof, it must be shown to be so prevailing that parties

may be presumed to contract with reference to it.^

(4) Powers inferred from co)iduct of principal. The con-

duct of the j)rincij)al may be such as to lead to a reasonable