Express verbal au. thority. Ratification. Bird v. acted in a manner contrary to his master's intention, the Court will, as between him and his master, construe them in a manner favourable to the servant and against the master, if they are capable of such a construction, upon the principle that verba fortius accipiuntur contra proferentem (i). The effect of express verbal instructions to the servant will be considered hereafter, as it depends upon whether the servant has a general authority to act for his master, or is merely specially employed on one particular oc casion. Where a master has recognised and adopted a contract entered into in his name by his servant, he will be equally liable upon it as if he had previously expressly authorized the servant to enter into it,-the maxim in such cases being, omnis ratihabitio retrotrahitur et mandato priori æquiparatur (k). "This doctrine," said Lord Cranworth, in Bird v. Brown (1), “is intelligible in principle and easy in its application when applied to cases of contract. If A. B., unauthorized by me, makes a contract on my behalf with J. S., which I afterwards recognise and adopt, there is no difficulty in dealing with it as having been originally made by my authority. J. S. entered into the contract on the understanding that he was dealing with me, and when I afterwards agreed to admit that such was the case, J. S. is precisely in the condition in which he meant to be; or, if he did not believe A. B. to be acting for me, his condition is not altered by my adoption of the agency, for he may sue A. B. as principal at his option, and has the same equities against me if I sue which he would have had against A. B." (m). A master, however, cannot in this manner render himself liable upon a contract made by a servant, unless the servant, at the time he entered into it, assumed to act as his agent (n). Nor can he thus avail himself by (i) Story on Ag. sect.74.75. (k) Co. Litt. 207 a; Story on Ag. sect. 239, et seq., where see the rule of the Roman law, which was similar; and see Saunderson v. Griffiths, 5 B. & C. 909; Vere v. Ashby, 10 B. & C. 298, Maclean v. Dunn, 4 Bing. 722. (1) 4 Exc. 798. (m) There is more difficulty in the application of this doctrine in cases of tort; as to which see post. (n) Wilson v. Tumman, 6 M. & G. 236; 4 Inst. 317; Walker v. Hunter, 2 C. & B. adoption, of an act done in his name, which, in order to be valid at all, ought to have been valid at the time it was done. Such, for instance, as a notice to quit; since such a notice to be good must be one that the party to whom it is given may act upon it immediately (o). It is conceived, however, that even if such a notice were given in his master's name, by a servant not authorized to give it, to a tenant from year to year, and the master ratified it, and gave notice to the tenant of such ratification, before the commencement of the last half of the tenancy, such ratification would render the notice valid (p); though that might perhaps more properly be called a fresh notice to quit given by the master himself. Where a master has admitted his liability upon a Admission contract made by his servant, the weight due to that of liability admission depends on the circumstances under which it by master. was made (q). If no other person has been induced by it to alter his condition, the master is not concluded or estopped by it, but may prove it to have been mistaken or untrue (r). authority. Where the authority of a servant to bind his master Extent of upon contracts arises merely by implication, the general servant's implied rule is, that the authority of a servant is co-extensive with his usual employment, and the scope of his authority is to be measured by the extent of his employment (s). For a master who accredits a servant by employing him must abide by the effects of that credit, and will be bound by contracts made with innocent third persons in the seeming course of that employment, and on the faith of that credit, whether he intended to authorize them or not, or even if he expressly, though privately, forbad them; it being a general rule of law, founded on natural justice, that where one of two innocent persons must suffer by the fraud of a third, he who enabled that third person to commit the fraud should be the sufferer (t). 334. It was a maxim of the canon law, "Ratum quis ha bere non potest, quod ipsius nomine non est gestum;" see note (a), to 6 M. & G. 239. (0) Doe v. Walters, 10 B. & C. 626; Doe v. Goldwin, 2 Q. B. 146; and see per Parke, B., in Buron v. Denman, 2 Exc. 188. (P) See Bird v. Brown, 4 Exc. 799. (q) Newton v. Belcher, 12 Q. B. 924. (r) Newton v. Liddiard, 12 (s) Smith's Merc. Law, Master lia. ble when servant credit, and he usually Upon this principle, where a servant usually buys for his master upon credit, and the master is in the habit of usually buys paying for goods so purchased, the master is liable to for him upon pay for any goods of a similar nature which the servant may obtain upon credit, even though, in a particular instance, the master furnish the servant with money to pay for the goods, and the servant embezzle the money: or even if the servant, after he has been discharged, pledge his master's credit, unless the party giving credit knew that the servant was discharged (u). pays. Hazard v. Wayland's case. Thus, where (v) the defendant, who was a considerable dealer in iron, and known to the plaintiff as such, though they had never dealt together before, sent a waterman to the plaintiff for iron, on trust, and paid for it afterwards. He sent the same waterman a second time with ready money, who received the goods, but did not pay for them, the defendant was held liable, "for the sending him upon trust the first time, and paying for the goods, was giving him credit so as to charge the defendant upon the second contract" (w). So where a master (r) used to give his servant money every Saturday to defray the charges of the foregoing week. The servant kept the money; yet, per Holt, C. J., the master is chargeable,-for the master, at his peril, ought to take care what servant he employs, and it is more reasonable that he should suffer for the cheats of his servant than strangers or tradesmen. Salk. 289; Baring v. Corrie, (u) Nixon v. Brohan, 10 v. Harrison, 12 Mod. 346; Sir Robert Wayland's case, 3 Salk. 234; Anon. 12 Mod. 564; Boulton v. Arlsden, 3 Salk. 234; S. C. 1 Ld. Raym. 225. (v) Hazard v. Treadwell, I Str. 506. (w) See, however, Todd v. Robinson, Ry. & M. 217; Gilman v. Robinson, Ry. & M. 226; S. C. 1 C. & P. 642. A general agency to order goods could hardly be implied from a single recognised dealing. In most cases it would be a question for a jury whether the defendant held out the servant as his agent for the purpose of ordering the goods in question. (x) Sir R. Wayland's case, 3 Salk. 234; and sec Miller v. Hamilton, 5 C. & P. 433. Scarlett. Again, where a gentleman (y) kept a book with his Rusby v. coachman, in which were entered the articles procured by, and the sums advanced to him; but there did not appear to be any connexion between the sums advanced and the demands he was to pay: the gentleman was held liable to pay for hay and straw delivered for the use of his horses, although he had given the coachman money to pay the bills, which he had embezzled. foreman. Upon similar principles, the owner of a sawmill was Tradesman held (2) bound by a contract entered into by his fore- bound by man to furnish the plaintiff with a large quantity of contract of Scotch fir staves; as a foreman employed to conduct a Richardson business like that in which the defendant was engaged, v. Cartmust be taken to have a general authority to bind his wright. master by such contracts. tended to The principle of presumptive agency, on which these Presumptive cases were decided, has been extended to cases in which agency exthe person who assumed to act as servant was not really stranger in servant, but was considered to have been held out as a countingservant by the act of the master. house. course of held good. Thus, a merchant has been held bound by a payment Payment to in the usual course of business, to a person found in his such a counting-house, and appearing to be entrusted with the person, in conduct of the business there, though it turned out that business, the person was never employed by him, and the money never came to his hands; "For," said Lord Tenterden, "the debtor has a right to suppose that the tradesman has the control of his own premises, and that he will not allow persons to come there and intermeddle in his business without his authority" (a). And so a tender Tender to to a person, probably a chief clerk, in the office of an person in an attorney, who refused to accept the amount tendered as insufficient, has been held good,-being equivalent to a tender to the attorney himself (b). attorney's office, pro. bably a clerk, held good. Implied Again, although "it may be admitted that an authority to draw, does not import, in itself, an authority to authority of indorse bills; still, the evidence of such authority to clerk to in (y) Rusby v. Scarlett, 5 Esp. 76. (z) Richardson V. Cartwright, 1 Carr. & K. 328. (a) Barrett v. Deere, Moo. & M. 200. See Rex v. Thorley, 1 Moo. Cr. Cas. 343. (b) Wilmott v. Smith, Moo. dorse bills. Guarantee. Servant without prerity has all powers ne cessary and cise autho usual in similar cases. Warranty by servant entrusted to sell. draw is not to be withheld from the jury, who are to determine, on the whole of the evidence, whether such authority to indorse exists or not" (c). And therefore, where the defendants' confidential clerk had been accustomed to draw cheques for them, and in one instance, at least, they had authorized him to indorse, and in two other instances had received money obtained by his indorsing in their names, a jury were held warranted in inferring therefrom that the clerk had a general authority to indorse (d). And a man has been held liable (e) upon a guarantee given in his name by his son, who had signed for his father in three or four instances, and had accepted bills for him. Where a servant is employed to transact business, and has no particular orders with reference to the manner in which the business is to be transacted, he is considered as invested with all the authority necessary for transacting the business entrusted to him, and which is usually entrusted to agents employed in matters of a similar nature (ƒ). In this respect there is no distinction, whether the authority be general or special, express or implied. In each case it embraces the appropriate means to accomplish the desired end (g). Thus, a servant sent, without money, to buy goods, has implied authority to pledge his master's credit (h). Upon this principle it was held, in a very old case (i), that if a goldsmith make plate, wherein he mingles dross, so that it is not according to the standard, and send his servant to a fair to sell it, who sells it for good plate according to the standard; an action upon the (c) Per Tindal, C. J., Prescott v. Flinn, 9 Bing. 22. (d) Prescott v. Flinn, ubi supra; and see Barber v. Gingell, 3 Esp. 60; Llewellyn v. Winckworth, 13 M. & W. 598. (e) Watkins V. Vince, 2 Stark. 368. (f) Story on Ag. sect. 60; and see per Parke, B., in Cox v. Midland Counties Railway Company, 3 Exc. 278. (9) Story on Ag. sect. 85, 97; Howard v. Baillie, 2 H. Bl. 618. (h) Tobin v. Crawford, 9 M. & W. 718. (i) Southern v. How, Cro. Jac. 471; and see Hern v. Nicholls, 1 Salk. 289. As to how far the master is affected by fraud of his servant, see Cornfoot v. Fowke, 6 M. & W. 358; Fuller v. Wilson, 3 Q. B. 58; Jones v. Downman, 4 Q B. 235, note; Downman v. Williams, 7 Q B 103; Story on Ag. sect. 264. |