34 Who may be principal or agent. [в§в§55-57.

be some provision in the instrument appointing them

or something in the circumstances, such as waiver, ac-

quiescence and the like, which indicates the consent of

the principal that less than the whole may act.

See Hawley v. Keeler, 53 N. Y. 114, Cas. on Ag. 50.

В§ 56. If the power is joint and several, then

all or one only must act and not an intermediate num-

ber. If a partnership is the agent, the authority may,

as has been seen, be executed by any one of the part-

ners, in the absence of stipulations to the contrary.

The death or disability of one of two or more joint

agents will terminate the authority unless it is coupled

with an interest in the survivors.

See Deakin v. Underwood, 37 Minn. 98, 5 Am. St. Rep. 827, Cas.

Ag. 68.

В§ 57. But where the agency is one created

by law, or is public in its nature, the rule is different.

In such cases all of the agents or officers must be pres-

ent to deliberate, or must have notice and an oppor-

tunity to be present and deliberate with the others, but

a majority of the whole number, if present, may then

lawfully meet. A majority of this meeting may then

exercise the power.

This rule applies to the directors of corporations.

Thus after due notice, a majority constitute a quorum,

and a majority of that quorum may act.

See First Nat. Bank v. Mt. Tabor, 52 Vt. 87, 36 Am. Rep. 734, Cas.

on Ag. 52; McNeil v. Chamber of Commerce, 154 Mass. 277, Cas.

Ag. 63.

5В§ G8 60]

APPOINTMENT OF AGENTS.

35

ER Q,

CHAPTER

OF THE APPOINTMENT OF AGENTS AND THE EVIDENCE

THEREOF.

5 58. In general.

1. How the Agent May

Be Appointed.

59. Usually, only by act of

principal.

60. The method to be pursued.

61. 1. Authority to execute in-

struments under seal.

62. How when instrument

executed in presence of

Need not be express.

67.

Doctrine of estoppel

applied.

CS.

General rule.

69.

Limitations.

2.

Evidence of the Appoint-

ment.

70.

Authority not to be proved

by agent's admissions.

71.

But agent may be

called as a witness.

What constitutes the best

evidence.

How question deter-

mined.

principal.

63. How corporation may

appoint.

64. 2. Authority required by

statute to be in writing.

65. In other cases, authority

may be conferred by pa-

rol.

§ 58. In general. — The questions next to be consid-

ered will be, 1, How the agent may be appointed, and

2, By *what evidence the fact of his appointment may

be established.

.f 1. How the [gent may be Appointed.

§ 59. Usually, only by act of principal. — Except

in those cases in which the law creates the authoritv,

it is the invariable rule, that an agent can only be ap-

pointed at the will and by the act of the principal,

though that will may find expression in many different

ways.

See Pole v. Leask, 33 L. J. Rep. Eq. 155, Agency Cases. 81.

§60. The method to be pursued. — The law usu-

ally prescribes no particular method of conferring the

36 APPOINTMENT OF AGENTS. [§§ 60-S1 .

authority. The material question is as to the fact of

the appointment rather than as to the method adopted..

There are, however, two classes of cases — one arising

under the rules of the common law and one under

statutes — in which the authority must be conferred in

a particular way, and they are : 1. Cases wherein an

instrument under seal is to be executed ; and, 2, Cases

wherein some statute, usually designed to prevent

fraud or perjury, expressly requires the authority to

be conferred by writing. These two classes of cases

will be considered first.

В§ 61. 1. Authority to execute instruments under

sea l f — it was the settled rule at common law — and this

rule still generally prevails — that authority to execute

an instrument necessarily under seal could be con-

ferred only by a written power under seal.

See Humphreys v. Finch, 97 N. Car. 303, 1 S. E. Rep. 870, 2 Am.

St. Rep. 293.

So authority to fill blanks in deeds or other sealed in-

struments can generally be conferred only by sealed