unless such an authority may be reasonably inferred from the terms which were used in the retainer."

As between the client and the opponent, the former is bound by every act of his solicitor done in the ordinary course of practice (provided there is no collusion of fraud), whether it is authorized or not. Thus, if a solicitor pleads an improper plea, vr brings the action in an improper

9

form; or waives a judgment by default; or admits a fact to prevent the necessity of proving it at the trial;1 or sues out an irregular writ, whereby trespass is committed,2 the act binds the client.3

In all those cases where the solicitor, through acting negligently or against his instructions, binds his client to other [130] parties, the solicitor of course may be liable to the client for the consequence of his negligence or breach of duty.*

CHAPTER IV.

[136] OF THE LIMITS OF AN AGENT'S AUTHORITY.

SECT. 1. Of the Extension of the Authority.

The authority with which an agent is invested is not necessarily confined to the performance of those actions alone which are authorized by the bare words in which an authority is conveyed. On the contrary, it is rarely so confined. Generally speaking, the authority may be extended in a variety of ways by the operation of a number of rules and principles, some of which have already been discussed. There now remains for consideration the influence of the principal's conduct in extending the original authority.

The only ground of liability on the part of a principal to third parties dealing with an agent, for the acts of the agent

8. Payne v. Chute, 1 Roll. 365.

9. La Tuch v. Pacherante, 1 Salk. 86.

1. Blackstone v. Wilson, 26 L. J., Ex. 229.

2. Parsons v. Lloyd, 3 Wils. 341. 3. "If an attorney sues out an illegal writ, the party for whom he acts is so far identified with him in the proceedings that he is responsible for what is done under it; but the plaintiff is not responsible for any illegal

action taken or directed by the attorney which the plaintiff did not advise, consent to, or participate in, and which was not justified by any authority he had given." Cooley on Torts, 131, and cases cited.

4. As to the general law respecting attorneys, see Weeks on Att'ys (1892); Thornton on Att'ys (2 vols., 1914). See, also, notes to Evans Agency (Ewell's ed., Chicago), 182, et seq.; Tiffany Agency, 227.

done in excess of the power given him, and which he would be held to have even in a question between himself and the principal, is such culpa or quasi-culpa on the principal's part as would be a relevant ground for the plea of estoppel against [137] his pleading the actual terms of the authority given to the agent. Where the principal by his words or conduct wilfully causes another to believe the existence of certain powers in the agent, and induces him to deal with the agent in that belief; where the principal has by words or by conduct made a representation to another as to the agent's authority in order to induce others to act upon it; and where the representation or conduct complained of, whether active or passive in its character, has been intended to bring about the result whereby that other dealing with the agent has altered his position to his loss — in such a case, and in such a case alone, will the doctrine of estoppel apply to bar the principal from pleading against the third party the terms of the real authority which he gave to the agent.1 Mere negligence is not of itself a ground of estoppel.2

The question to be considered, so far as the liability of the principal to third parties is concerned, is whether the agent's act is within the scope of his authority. Thus, where the agent of a wharfinger, whose duty is was to give receipts for goods actually received at the wharf, fraudu

1. See Rice v. Groffman, 56 Mo. 434; Johnson v. Jones, Barb. 569; Kasson v. Noltner, 43 Wis. 646; Schimmelpennich v. Bayard, 1 Pet. 264; Farmers' Mut. Ins. Co. v. Taylor, 73 Penn. St. 342; Bigelow on Estoppel (2d ed.), 434, and cases cited.

Although an agent's authority may be special and limited, or even though he may have no actual authority, yet if the principal allows him to hold himself out to the public as his agent generally, without noting such limitation, and the agent acts outside of his actual authority, the

principal will be bound thereby, unless the party with whom he deals had notice of the limitation, or want of authority. St. Louis & M. Packet Co. v. Parker, 59 Ill. 23; Kerslake v. Schoonmaker, 3 Thomp. & C. 524; 8. c., 1 Hun, 436; Gallup v. Lederer, 3 Thomp. & C. 710; s. c., 1 Hun, 282. 2. Bell, Commentaries, iii, I, 3, n. 5. 3. See Taylor v. Chicago & N. W. R'y Co., 74 Ill. 86; Fletcher v. Sibley, 124 Mass. 226; Kennedy v. Otoe County Nat. Bank, 7 Neb. 59; Saveland v. Green, 40 Wis. 431; Locke v. Stearns, 1 Met. 560.

lently gave a receipt for goods which had never been received, the principal was not held to be responsible, because it was not within the scope of the agent's authority in the course of his employment to give such a receipt.*

SECT. 2. Limitations of an Agent's Authority.

In considering the true limits of the authority of an agent a distinction must be made. Questions may arise either between a principal and third parties who have dealt bona fide with the agent of that principal, or between the principal and the agent. The construction of the authority will be different in each of those cases respectively. In the former case, the true limit of the agent's power to bind the principal will be the apparent authority with which the agent is invested;" in the latter case, the true limit of his authority will be marked by the express authority or instructions given to the agent; nor will it be extended by the addition of any implied powers inconsistent with such authority and instructions."

4. Coleman v. Riches, 24 L. J., C. P. 125.

5. See Kasson v. Noltner, 43 Wis. 646; Taylor v. Chicago & N. W. R'y Co., 74 Ill. 86; Adams Express Co. V. Schlessinger, 75 Penn. St. 246;

Smith v. Peoria County, 59 Ill. 412; and note 1, p. 140.

6. See Allen v. Suydam, 20 Wend. 321; Wilson v. Wilson, 26 Penn. St. 393; Williams v. Higgins, 30 Md. 404; Sawyer v. Mayhew, 51 Me. 398.

[145] CHAPTER V.

OF THE CONSTRUCTION OF AN AGENT'S AUTHORITY.1

SECT. 1. Where the Authority is given by a Formal
Instrument.

When an authority is conferred upon an agent by a formal instrument, as by a power of attorney, there are two rules of construction to be carefully attended to:

1. The meaning of general words in the instrument will be restricted by the context, and construed accordingly.

2. The authority will be construed strictly so as to exclude the exercise of any power which is not warranted either by the actual terms used, or as a necessary means of executing the authority with effect.

[149] SECT. 2. Where the Authority is Ambiguous. When the instructions given to an agent are clear and defined, his duty is to observe them faithfully. He will not be allowed to violate them in any particular, provided they may be lawfully carried out. On the other hand, if the instructions are given in such uncertain terms as to be susceptible of two different meanings, and the agent bona fide adopts one of them and acts upon it, it is not competent to the principal to repudiate the act as unauthorized because he meant the instructions or orders to be read in the other sense of which they are equally capable. It is a fair answer to such an attempt to disown the agent's authority to tell the principal that the departure from his intention was

1. A large collection of maxims and rules of interpretation will be found in Blackwell on Tax Titles, *606 et seq. Brown's Legal Maxims is, also, a book of good value to the student.

2. Bissell v. Terry, 69 Ill. 184; Wood v. Goodridge, 6 Cush. 117, 123; Brantley v. Southern Life Ins. Co., 53 Ala. 554; Cringhead v. Peterson, 72 N. Y. (anno. reprint) 279.