58 Delegation of authority. [в§в§99-101.

him. It is the question, not whether an agent may be

authorized to appoint other agents, but whether he may

appoint sub-agents. The difference may be seen by

Inquiring whether an agent appointed by an agent is

the agent of the principal or the agent of the agent.

The act of handing down authority conferred is fre-

quently spoken of as delegation of the authority, and

the question arises in other departments of the law than

agency.

В§ 100. Agent generally cannot delegate authority

to sub-agent. — It is the general rule, finding expres-

sion in the familiar maxim, Delegatus non potest dele-

gari, that an agent cannot delegate his authority to a

sub-agent, without the expressed or implied consent of

his principal. This is always the rule where the act

to be performed requires the exercise of judgment or

discretion, or where the principal evidently trusted to

a personal performance by the agent.

The rule is based upon the presumption that the

principal has selected the particular agent because he

relied upon, or desired the benefit of, that particular

person's judgment, discretion, experience, skill or abil-

ity, and it would be a manifest injustice, as well as

a disappointment of expectations, if the person so

selected could turn the matter over to another of whom

the principal may be ignorant and to whom he might

not be willing to entrust the authority.

See Appleton Bank v. McGilvray, 4 Gray (Mass.) 518, 64 Am.

Dec. 92, Cas. Ag. 229; Birdsall v. Clark, 73 N. Y. 73, 29 Am. Rep.

105, Cas. Ag. 231; McKinnon v. Vollmar, 75 Wis. 82, 43 N. W. 800,

17 Am. St. Rep. 178, 6 L. R. A. 121; Davis v. King, 66 Conn. 465,

50 Am. St. Rep. 104 and exhaustive note; Central, etc., Ry. Co. v.

Price, 106 Ga. 176, 71 Am. St. Rep. 246.

В§ 101. These are the considerations also which

forbid the agent's doing what is really the same thing

§§ 101-103.] DELEGATION OF AUTHORITY. 5S

under another name, that is, assigning his contract of

agency. "In the case of sue!) a contract," it is said in

a recent case, "it is a presumption of law that the trust

is exclusively personal, and that it cannot be trans-

ferred or delegated by the agent without his principal's

consent."

See Bancroft v. Scribner, 72 Fed. Rep. 988, 44 U. S. App. 480, 21

C. C. A. 352; Peterson v. Christensen, 26 Minn. 377, Cas. Ag. 234.

В§ 102. The rule, however, is not inflexible. It

is based upon the presumed intention of the principal

and is intended for his protection. There are cast-,

moreover, wherein the reason is not present, and the

rule should not then prevail. Ifjhe c ase doe s not in-

volve the exercise of any special skill, judgment or dis-

cretion, or, though it does, if it appears that the prin-

cipal is willing that the authority may be delegated,

then exceptions should be recognized, and the law

admits them. Hence —

§ 103. Under what circumstances justified. — Unless

the contrary is expressed, authority to appoint a sub-

agent will be implied — (1) where the act to be done

is mechanical or ministerial only; (2) where the au-

thority can not be executed without the employment

of sub-agents; (3) where their employment is in accord-

ance with a known and well established usa<re; and

(4) where the circumstances were such that it was evi-

dently contemplated, when the agent was appointed,

that sub-agents would be employed.

See Harralson v. Stein, 50 Ala. 347, Cas. Ag. 23G; Grady v.

Insurance Co., 60 Mo. 116. Cas. Ag. 23S; Exchange Nat. Ban!. 7.

National Bank, 112 U. S. 276, Cas. Ag. 239; Cummins v. Heald, 24

Kan. COO, 36 Am. Rep. 264, Cas. Ag. 247; Bailie v. Augusta Say.

Bank, 95 Ga. 277, 21 S. E. Rep. 717, 51 Am. St. Rep. 71; McKlnnon

v. Vollmar, 75 Wis. 82, 43 N. W. 800, 17 Am. St. Rep. ITS 6 L. R.

A. 121.

60 DELEGATION OF AUTHORITY. [§§ 103-105.

An appointment of a sub-agent, though not originally

authorized, may be ratified by the principal in the

same manner and with like effect, as in other cases.

See Saveland v. Green, 40 Wis. 431. See also Barret v. Rhern, 6

Bush (Ky.) 466; Montagu v. Forwood [1893], 2 Q. B. Div. 350.

§ 104. Effect of appointment of sub-agent. — If the

sub-agent is employed with the express or implied con-

sent of the principal, then the sub-agent is to be

regarded as the agent of the principal. He is liable to

the principal directly, and the original agent is not

responsible to the principal for the acts of the sub-

agent, unless lie failed to exercise good faith and due

care in his appointment.

See Davis v. King, 66 Conn. 465, 50 Am. St. Rep. 104, and note;

Bradford v. Hanover Ins. Co., 102 Fed. Rep. 48, 43 C. C. A. 310, 49

L. R. A. 530; Franklin Fire Ins. Co. v. Bradford, 201 Pa. St. 32, 50

Atl. Rep. 286, 55 L. R. A. 408, 1 Michigan Law Review, 140.

В§ 105. If the employment of the sub-agent was

not so authorized by the principal, then the sub-agent

is to be deemed the agent of the original agent only,

and the latter is responsible to the principal for the

acts of the sub-agent.

See Barnard v. Coffin, 141 Mass. 37, 55 Am. Rep. 443, Cas. Ag.

249; Hoag v. Graves, 81 Mich. 628, 46 N. W. Rep. 109.

§§ 1CKJ-107.] TERMINATION OF THE AGENCY.

61

CHAPTER VII.

OF THE TERMINATION OF THE AGENCY.

9 106. In general.

I. Termination by Act of

Parties.

107. What methods fall under

this head.

108. Termination by original

agreement.

109. Termination by subse-

quent act of parties.

1. Termination By Mutual

Consent.

110. Agency may be termi-

nated at any time by

mutual consent.

2. Revocation By Principal.

111-112. Power of principal to

revoke.

113-115. Not when coupled

with an interest.

116. How revoke.

117. Notice of revocation.

3. Renunciation By Agent.

118. Power of agent to re-

nounce authority.

В§ 119. Enforcement of contract

of agency.

120. Agency at will.

121. Discharge of agent justi-

fied when.

122. Renunciation by agent

justified when.

II. Termination by Opera-

\ UK Law.

123. In general.

124. Death of principal.

125. Death of agent.

126. Insanity of principal or

agent.

127. Bankruptcy of principal

or agent.

128. Marriage of principal.

129. War.

130. Destruction of subject

matter.

131. Termination of power

over subject matter—

Sub-agents.

§ 100. In general. — Ilaving now given some atten-

tion to the question of how agency may be created, it

may be well to consider next the question of how it may

be terminated. The agency may be terminated in one

of two general ways: —

1. By the act of the parties.

2. By operation of law.

I. TERMINATION BY ACT OF PARTIES.

§ 107. What methods fall under this head. — The

agency may be terminated by the act of the parti

either —

62 TERMINATION OF THE AGENCY. [§§ 107-110.

(a) By force of their original agreement; or

(6) By the subsequent act of one or both of them.

§108. Termination by original agreement, — The

authority will be terminated by force of the original

agreement where it comes to an end because of some

limitation either expressly or impliedly impressed upon

it at the time of its creation.

By force of the original agreement, therefore, the

agency is terminated —

(1) When the object for which it was created has

been accomplished; and

(2) When the time originally fixed for its continu-

ance has expired.

В§ 109. Termination by subsequent act of parties.

— The authority will be terminated by the subsequent

act of the parties —

(1) Where it is terminated by their mutual con-

sent.

(2) Where the principal revokes it.

(3) Where the agent renounces it.