2 Q. B. 66; Atlee V. Bartholomew, 69 Wis. 43, 5 Am. St. Rep. 103,

and note; 25 Am. L. Rev. 74.

The Wisconsin cases and the English cases represent extreme

Views. The rule of the Pennsylvania case is more likely to be fol-

lowed. The question is one of real difficulty. In addition to the

discussions referred to in the notes to the* cases, see 9 Harv. L.

Review, 60; 5 Law Quar. Rev. 440; Fry on Specific Performance

(3d Eng. ed.), 711.

§ 97. Effect between agent and other party. — In

contract. — A person who assumes to deal as agent

with third parties in matters concerning which he has

5G OF AUTHORITY BY RATIFICATION. [§§ 97-98.

no authority incurs, in many instances, as will be seen

hereafter, an individual liability to the person so dealt

with. As between such another party and the agent

of a disclosed principal, the effect of the ratification

in contract cases is to release the agent from liability

to the other party for having made a contract without

authority; and it gives the agent the same rights

against the other party which he would have had if the

contract had been previously authorized.

See Spittle v. Lavender, 2 Brod. & Bing. 452, 6 Eng. Com. L. 224.

If the principal were undisclosed, ratification will

not pro tect the agent from liability to the other party,

but it will charge the principal and give the other party

an option to hold the principal or the agent as he

choo ses.^

See post, В§ 243.

§ 98. In tort. — But in cases of tort, the rule

is different: The ratification by the principal makes

him liable also for the tort to the third person, but it

does not release the agent from his liability to the third

person for his participation in the tort. Both princi-

pal and agent are thereafter liable. It is no defense

to the agent when sued for a tort that he acted as the

agent of another in committing it.

See Stephens t. Elwall, 4 Maule & Sel. 259, Cas. Ag. 226; Delaney

V. Rochereau, 34 La. Ann. 1123, 44 Am. Rep. 456, Cas. Ag. 514; Os-

borne t. Morgan, 130 Mass. 102, 39 Am. Rep. 437, Cas. Ag. 518; Miller

V. Wilson, 98 Ga. 567, 58 Am. St. Rep. 319.

В§99.]

DELEGATION OF AUTHORITY.

57

CHAPTER VI.

OF DELEGATION OF AUTHORITY BY THE AGENT.

99. In general.

100-2. Agent generally cannot

delegate authority to

sub-agent.

В§ 103 Under what circumstances

justified.

104-5. Effect of appointment of

sub-agent.

§99. In general. — Thus far there has been consid-

ered the (question of the appointment of agents by the

principal himself, either before the act was done — by

authorization, or after it was done — by ratification.

Some consideration is required of the question whether

authority can be conferred not by the principal him-

self but by some one else to whom that power has been

confided.

There can be no doubt, of course, that the principal

may authorize an agent to employ other agents, as

where the manager of a business is clothed with the

power of employing all such servants and agents as the

conduct of the business may require. In such eas< -.

employment of agents by the agent authorized to em-

ploy them, within the scope of the employment, is an

appointment by the principal under the general maxim

Qui facit per alium, farit per se } and the agents so ap-

pointed are the agents of the principal as fully as

though appointed by him in person.

Another and a different question is, not whether an

agent may thus be authorized to appoint agents who

will derive authority directly from the principal, but

whether an agent who has been given certain authority

may himself hand that authority over in whole or in

part to another, who is to exercise it either for ^v under