must, by the Statute of Frauds, be in writing (i); and an agent for a corporation aggregate must in general be constituted not only by writing, but by deed (k); and in every case where a deed is to be executed by one man as agent or attorney for another, the agent or attorney must himself be authorized by deed for that purpose (1). An agency, in whatever way constituted, determines ipso facto by the death of the principal, and is also capable of being revoked by him in his lifetime, with as little ceremony as it was created, and at his mere pleasure; but to this there is an exception in the case where an authority is given in pursuance of a contract with another party, and by way of security to him,-as where a man assigns his effects in trust for his creditors, and executes a power of attorney to the trustee, to enable him to recover debts, the amount of which is to be applied to the purposes of the trust;-for an authority of this sort is not revocable at the pleasure of the principal (m). An agent also may be either general or special; the former, where a man is empowered to act generally in the affairs of another, or at least to act for him generally in some particular capacity; the latter, where he is authorized to transact for him only in some particular matter (n). And here the distinction is observable, that so far as the (i) 29 Car. 2, c. 3, ss. 1, 2, 3. Under the 4th and 17th sections of this statute, however, (vide sup. p. 54, et post, p. 69,) the agent's authority is not required to be in writing. As to the lease, or assignment, &c. itself, and the necessity for its being not merely in writing under this statute, but by deed also under the statute 8 & 9 Vict. c. 106, s. 3, vide sup. vol. 1. p. 516. (k) Plowd. 91; see Mayor of Ludlow v. Charlton, 6 Mee. & W. 815. (1) See Harrison v. Jackson, 7 VOL. II. T. R. 209; Elliott v. Davies, 2 Bos. & Pul. 338. (m) Paley, Princ. and Ag. 156, 2nd edit. (n) As to the extent of an agent's authority in particular cases, the following, among other authorities, may be consulted:-Attwood v. Munnings, 7 B. & C. 278; Flemyng v. Hector, 2 Mee. & W. 172; Thomas v. Edwards, ibid. 215; Todd v. Emly, 7 Mee. & W. 427; S. C. 8 Mee. & W. 505; Rotton v. Inglis, 2 Q. B.667. rights of strangers who deal with him, without notice of any particular restriction placed on his powers, are concerned, a general agent shall be presumed to have authority for what he does, provided it fall within the limits ordinarily belonging to the kind of employment which he exercises, even though in fact he may be violating the direction privately given in the particular case by his employer; but the power of a special agent is strictly bounded by the authority he has actually received, so that a stranger who deals with him has no right to consider his acts as binding on the employer, if it should turn out that the instructions of the latter have been exceeded (o). But where that which is done by an agent (of whatever description) is without sufficient authority, it is always capable of being made good by the subsequent assent of the principal; and the effect, in such event, is exactly the same as if full power had been originally given; the maxim of law on this subject being, that every ratification is retrospective, or, as it is commonly expressed, omnis ratihabitio retrò trahitur, et mandato æquiparatur. A contract duly made by an agent is in law the contract of the principal; from which it follows that such principal is entitled to enforce it by suit in his own name, and is also liable to be personally sued upon it: and the case will be the same though the agent should have made the contract as if he were himself the party interested, and without disclosing the capacity in which he acted. Yet in the case last supposed, the agent, having pledged his own personal credit, would be liable (not less than the principal) to be personally charged on the contract; though, supposing him to have made it professedly on behalf of another person, and without any expressions indicative of an intention to bind himself, no such liability could have attached to him (p). (0) See Trueman v. Loder, 11 Ad. & El. 593. (p) As to the liability of principal, or of agent, on contracts made by To these remarks we may add, that an agent is always incompetent, without special authority for that purpose, to appoint another person to act in his stead (q); the maxim of law being, that delegatus non potest delegare. Having now attempted to trace the principal lineaments of the law of contract, generally considered, we shall devote the remainder of the chapter to an examination of such particular species of contract, relative to things personal, as are of superior interest and importance, without reference in this place to such contracts as concern the realty, which have been in some measure noticed in the first part of this book (r). And at the head of these we may place, I. The contract of sale. This is a contract for the transmutation of property from one man to another, for a price (s). [If it be a commutation of goods for goods, it is more properly an exchange; but if it be a transferring of goods for money, it is called a sale; which is a method of exchange introduced for the convenience of mankind, by establishing an universal medium, which may be exchanged for all sorts of other property; whereas, if goods were only to be exchanged for goods, by way of barter, it would be difficult to adjust the respective values, and the carriage would be intolerably cumbersome. All civilized nations therefore adopted very early the use of money, for we find Abraham giving "four agent, see Goodhaylie's case, Dy. 230; Appleton v. Binks, 5 East, 148; Paterson v. Gandasequi, 15 East, 62; Lucas v. De la Cour, 1 M. & S. 249; Addison v. Gandasequi, 4 Taunt. 574; Thomson v. Davenport, 9 Barn. & Cress. 78; Sims v. Bond, 5 B. & Ad. 393; Amos v. Temperley, 8 Mee. & W. 798; Smout v. Ilbery, 10 Mee. & W. 1; Drake v. Beckham, 11 Mee. & W. 315; Carr v. Jackson, 7 Exch. 382; Jones v. Downham, 4 Q. B. 235; (q) 9 Rep. 77 b; Coles v. Trecothick, 9 Ves. 251; Blore v. Sutton, 3 Meriv. 237. (r) Vide sup. bk. 11. pt. 1. cc. XV. XVI. (s) Noy, Max. 42. [“hundred shekels of silver, current money with the mer"chants," for the field of Macpelah (t); though the practice of exchange still subsists among several of the savage nations. But with regard to the law of sales and exchanges there is no difference: we shall therefore treat of them both under the denomination of sales only.] A contract of sale implies a bargain, or mutual understanding between the parties as to terms; and the law as to the transmutation of property under such contracts may be stated generally, as follows: [if the vendor says the price of the beast is 47., and the vendee says he will give 47., the bargain is struck;] and if the goods or price be thereon delivered, or tendered by either party, conformably to the bargain, or any part of the price paid down and accepted (if it be but a penny), or any portion of the goods delivered and accepted by way of earnest (u), the property in the goods is transmuted, and vests immediately in the bargainee so that in the event of their damage or destruction, he must stand to the loss; but if no such delivery, payment or tender take place, the loss falls on the vendor (x). This supposes (it will be observed) the case of a sale for ready money; but if it be a sale on credit, of goods to be delivered forthwith, the property passes to the vendee immediately upon the striking of the bargain (y). (t) Gen. c. xxiii. v. 16. (u) Earnest is called in the civil law arrha, and interpreted emptionis, venditionis contracta argumentum ; Inst. 3, t. 24. Antiently, among all the northern nations, shaking of hands was held necessary to bind the bargain, a custom which we still retain, says Blackstone, in many verbal contracts. A sale thus made was called handsale-venditio per mutuam manuum complexionem-(Stiernh. de Jure Goth. 1. 2, c. 5), till in process of time the same word was used to signify the price or earnest, which was given immediately after the shaking of hands, or instead thereof. 2 Bl. Com. 448. (a) See Shep. Touch. 224, 225; Dy. 30 a; Hob. 41; Noy, Max. c. 42; Langfort v. Tiler, 1 Salk. 113; 2 BI. Com. 447; Hinde v. Whitehouse, 7 East, 571; 2 Kent, Com. 388. (y) See Hob. 41; vide Noy, Max. 87; Dy. 30, 76; Shep. Touch. 222; Clarke v. Spence, 4 Ad. & El. 469. But if there be a fraudulent intention on the part of the vendee at the time, not to pay for the goods, the property does not pass. Noble v. Adams, 7 Taunt. 59. These doctrines, however, with respect to the time at which the property vests, refer only to a sale of specific goods; for in other cases no property passes until the particular goods be ascertained by delivery (z). They also refer to the case where the goods are at the time of sale in a condition to be immediately delivered; for while any previous act remains to be done to them on the part of the vendor, they continue always at his risk (a). There is a distinction, too, between the vesting of the property, and the vesting of the right of possession (b); for even in the case of a sale of specific and finished goods (if for ready money), the vendee cannot take the goods until he tenders the whole price agreed on. [But if he tenders the money to the vendor, and he refuses it, the vendee may seize the goods, or have an action against the vendor for detaining them (c).] All that has been said besides, with respect to a contract of sale, is to be taken as subordinate (where the price amounts to 107.) to the provisions of the Statute of Frauds, 29 Car. II. c. 3; by the 17th section of which it is enacted, that no contract for the sale of any goods, wares, or merchandizes, for the price of 107. sterling, or upwards, shall be allowed to be good, except the buyer shall accept part of the goods, and actually receive the same (d), or unless (z) Per Holroyd, J., Simmons v. Swift, 5 Barn. & Cr. 864; per Parke, J., Dixon v. Yates, 5 Barn. & Ad. 340. By 19 & 20 Vict. c. 90, s. 2, the plaintiff in an action on breach of a contract to deliver specific goods for a price in money, may now recover the goods specifically, and not merely damages for their non-delivery. This could not formerly be done; vide post, bk. v. c. VIII. (a) Simmons v. Swift, 5 Barn. & Cress. 857; Tansly v. Turner, 2 Bing. N. C. 151. As to the passing of property under ship-building * contracts, where the price is paid by instalments, during the progress of the work, see Clarke v. Spence, 4 Ad. & E. 448. (b) 2 Kent, Com. 387. (c) Waterhouse v. Skinner, 2 Bos. & P. 447. (d) See Acraman v. Morrice, 8 C. B. 449; Farina v. Home, 16 Mee. & W. 119; Saunders v. Topp, 4 Exch. 390; Morton v. Tibbett, 15 Q. B. 428; Cuncliffe v. Harrison, 20 L. J., Exch. 325; Hunt v. Hecht, 8 Exch. 814; Holmes v. Hoskins, 9 Exch. 753; Tomkinson v. Staight, 17 C. B. 697. |