to actions upon or concerning things. Service deals with matters of manual or mechanical execution. An agent is the more direct representative of the master and clothed with higher powers and broader discretion than a servant. Mechem Agency, sections 1 and 2.

"The terms 'agent' and 'servant' are so frequently used interchangeably in the adjudications that the reader is apt to conclude that they mean the same thing. We think, however, that the history of the law bearing on this subject, shows that there is a difference between them. Agency in its legal sense always imports commercial dealings between two parties by and through the medium of another. An agent negotiates or treats with third parties in commercial matters for another. When Nichols was engaged in treating with the defendants concerning the note he was an agent. When the note was delivered to him it was in law delivered to the plaintiff and he ceased to treat or deal with the defendants. All his duties concerning the note then related to the plaintiff. It was his duty to carry and deliver it to the plaintiff. In doing this he owed no duty to the defendants. He ceased to be an agent because he was not required to deal further with third parties. He was then a mere servant of the plaintiff charged with the duty of faithfully carrying and delivering the note to his master. When Nichols made the alteration in the note he was the servant and not the agent of the plaintiff.

"Modern jurisprudence properly and justly limits the liability of the master to the acts of his servant done within the scope of the employment. There is still substantial and just grounds for the principle that the master is liable for the wrongful acts of his servant. No liability arises against the master for the wrongful acts of his servant unless the servant has perpetrated an injury upon either the person or property of another. Nichols was the servant of the plaintiff when he made the alteration of the note. But did he inflict any injury upon the property of the defendant? Certainly not. The injury, if any, was inflicted by the servant upon the property of his own master, and not upon the property of the defendants. The principle that the master

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is liable for the tortious acts of his servant committed in the line of the employment has no application to the facts of this case, for no injury was done to the defendant's property."

Question 198: (1) What were the facts in this case, the question presented and the Court's decision?

(2) What is the nature of the duties that make one an agent? A servant?

(3) For what purpose was Nichols an agent, and for what a servant in this case?

§ 186. (Agency, Sec. 2.)

The responsibility of the principal or master.

(Note: The cases under the other appropriate sections render none necessary here. The idea underlying the relationship of Principal and Agent and Master and Servant is that the Principal, or Master, is responsible for that which he has employed the Agent or Servant to do, as though he had done it himself. It is the principal's act, done through the agency of another. Two maxims frequently are quoted to express this fundamental idea of Agency "Qui facit per alium facit per se" and "Respondeat superior.")

§187. (Agency, Sec. 3.)

The principal and agent as one person.

act of the agent or When the agent or

(Note: The theory of the law is that the servant is the act of the principal or agent. servant does the act, the principal or master does it. It is his act. See remarks of Holmes, J. in Case No. 211 post, and remarks of Peters, J. in Lyon & Co. v. Kent, Case No. 199 post.)

§ 188. (Agency, Sec. 4.) Kinds of agencies. (Note: Agents are classified

(1) From standpoint of extent of authority into

(a) General agents;

(b) Special agents.

(2) From standpoint of responsibility of agent to principal

(a) Agents del credere;

(b) Agents not del credere.

(3) From standpoint of skill or profession

(a) Non-professional agents;

(b) Professional agents.)

A.

CHAPTER 24

CAPACITY OF PARTIES AND POWER OF
DELEGATION

§ 189. (Agency, Sec. 5.) In general.

(See cases in following sections.)

Power to be principal or agent as dependent upon capacity to contract. B. Power to be principal or agent as dependent upon nature of act involved.

A. Power to Be Principal or Agent as Defendant Upon Capacity to Contract.

§ 190. General rule as power to be principal.

§ 191. Minors as principals.

§ 192. Corporations as principals.

§ 193. Power to act as agent.

§ 190. (Agency, Sec. 6.) General rule as power to be

principal.

Case 199. Lyon & Co. v. Kent, 45 Alabama Reports, 656.

PETERS, J.: "It is the undoubted law of agency, that a person may do through another what he could do himself in reference to his own business and his own property; because the agent is but the principal acting in another name. The thing done by the agent is, in law, done by the principal. This is axiomatic and fundamental. It needs no authorities to support it. Qui facit per alium, facit per se. Broom's Maxims, marg.; 1 Parsons' Contract, 5th Ed., p. 39 et seq.; Story's Agency, sec. 440. And to this it may be added, that an agent in dealing with the property of his principal must confine

his acts to the limit of his powers; otherwise the principal will not be bound. And it is also the

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duty of one dealing with an agent to know what his powers are, and the extent of his authority."

Question 199: (1) Generally speaking, may one do any business act through another that he might personally do? (2) Has an agent any more power than the principal gives him?

§ 191. (Agency, Sec. 7.) Minors as principals.

.(Note: See Case No. 21 in Contracts.)

§ 192. (Agency, Sec. 7.) Corporations as principals.

(Note: See powers of corporations under title Corporations, Division G post.)

§ 193. (Agency, Sec. 9.) Power to act as agent.

Case 200. Lyon & Co. v. Kent, 45 Ala. 656.

PETERS, J.: Any one, except a lunatic, imbecile, or child of tender years, may be an agent for another. It is said by an eminent author and jurist, that 'it is by no means necessary for a person to be sui juris, or capable of acting in his or her own right, in order to qualify himself or herself to act for others. Thus, for example, monks, infants, femes covert, persons attainted, outlawed or excommunicated, villeins and aliens may be agents for others.' Story's Agency, 6, 7, 9. So, a slave, who is homo non civilis, a person who is but little above a mere brute in legal rights may act as the agent of his owner or his hirer. Powell v. The State, 27 Ala. 51; Stanley v. Nelson, 28 Ala. 514."

Question 200: Why may a person act as agent when he is without power to do the same act as principal?

(Note: The power to act as agent is of course to be distinguished from the power to make a binding contract of agency.

If I employ a child to buy goods for me on my credit I am bound if he follows out his authority, but the child could of course disaffirm his employment with me at any time.)

B. Power to Be Principal or Agent as Defendant Upon Nature of Act Involved.

§ 194. Appointment of agent for illegal purpose.

§ 195. Acts not delegable because general public policy forbids.

§ 196. Personal duties imposed by contract not delegable.

§ 194.

(Agency, Sec. 10.) Appointment of Agent for Illegal Purpose.

Case 201. Mills v. Mills, 40 New York Reports, 543.

(Set out as Case No. 109, supra.)

§ 195. (Contracts, Sec. 11.) Acts not delegable because general public policy forbids.

(Note: Some acts may not be delegated because of their personal nature. Public officers cannot delegate judicial and discretionary powers; directors and trustees cannot delegate their powers except as matters of administration. Citizens cannot delegate power to vote at the polls; an agent cannot delegate the personal duties he has been employed to perform.)

§ 196. (Contracts, Sec. 12.) Personal duties imposed by contract not delegable.

(This is exemplified by cases, post, on duties of agent.)