occasioned by his own fault, and that he should have given his order in clear and unambiguous terms.3

SECT. 3. Where the Authority is conferred by Informal Writing or arises by Implication.

The rules under this head may be briefly summarized. (a) A written instrument will be so construed as to give authority to do only such acts as are within the scope of the particular matter to which the instrument refers.*

(b) Where orders and instructions are free from ambiguity, they will be construed according to their obvious meaning. As to the rules where they are not, see section 2 of this chapter. The construction of mercantile instruments and instructions may be guided by the usages of trade; and for that purpose the evidence of persons conversant with mercantile affairs is received."

(c) With reference to the construction of an authority which arises by implication, see Book II, Part I, Chap. II.

[153] CHAPTER VI.

ADMISSIONS AND DECLARATIONS BY AGENTS.

As a general proposition, what one man says, not upon oath, cannot be evidence against another man. The exception must arise out of some peculiarity of situation, coupled with the declarations made by one. An agent may undoubtedly, within the scope of his authority, bind his principal by his agreement, and in many cases by his acts. What the agent has said may be what constitutes the agreement of the principal; or the representations or statements made may be the foundation of the inducement to the agreement. Therefore, if writing is not necessary by law, evidence must

3. Per Lord Chelmsford in Ireland v. Livingstone, L. Rep., 5 H. L. 416; National Bank v. Merchants' Bank, 91 U. S. 92, 104.

4. Story's Agency, s. 69. See sect. 1 of this chapter.

5. Paley, by Lloyd, 198; Story, ss. 75, 77.

be admitted to prove that the agent made a certain statement. So with regard to acts done, the words with which these acts are accompanied frequently tend to determine their quality. Nevertheless the admission of the agent cannot be assimilated to the admission of the principal. A party is bound by his own admission, and is not permitted to contradict it; but it is impossible to say a man is precluded from questioning or contradicting anything any person has asserted as to him, as to his conduct, or his agreement, merely because that person has been an agent of his.1 An agent can act only within the scope of his authority; hence declarations or [154] admissions made by him as to a particular fact are not admissible as evidence against the principal, unless they fall within the nature of the agent's employment as agent; unless, for instance, they form part of the contract which he has entered into and is employed to negotiate on behalf of the principal. Hence, what is said by an agent representing a contract or other matter in the course of his employment, is good evidence to affect the principal, but not if it is said on another occasion.3

The result of the cases appears to be that if it is shown that an admission has been made by an agent acting in a matter within the scope of his authority, and that it is a part of the res gestae, and does not relate to bygone transactions, then such admission is receivable in evidence against the principal, and the agent himself need not be called. Admissions or declarations of an agent cannot, of course, be received if there is no sufficient proof of agency."

1. Per Sir William Grant, M. R., Fairlie v. Hasting, 10 Ves. 123, 126. 2. Betham v. Benson, Gow. 45. 3. Peto v. Hague, 5 Esp. 134.

4. Corbin v. Adams, 6 Cush. 95; La Fayette & Ind. R. R. Co. v. Ehman, 30 Ind. 83; Anderson v. Rome, Watertown & O. R. R. Co., 54 N. Y. ( (anno. reprint) 334; Willard v. Bucking

ham, 36 Conn. 395. See notes, Evans Agency (Ewell's ed.), 217, et seq.

5. Reynolds v. Ferree, 86 III. 570. But the error of admitting such declarations or admissions, before the proper foundation has been laid, is cured by subsequent proof of his agency. Rhodes v. Lowry, 54 Ala. 4.

CHAPTER VII. [159]

THE DOCTRINE OF CONSTRUCTIVE NOTICE.

The following principles appear to be deducible from the

cases:

(1) As to knowledge acquired by an agent during his employment as agent. It is well settled, and is universally true, that a principal is affected with constructive notice of all such knowledge,' provided the knowledge is of facts which are material to the transaction in which the agent is employed, and which it was the duty of the agent to communicate.2

(2) As to knowledge acquired by an agent otherwise than in the business for which he was employed. In [165] commercial transactions the knowledge of the agent, however acquired, is the knowledge of the principal. Where the same solicitor is employed by a vendor and purchaser, the latter will be affected with constructive notice of the knowledge possessed by the solicitor, although that knowledge was acquired before the retainer by the purchaser. It is assumed, however, that in both

1. Fuller v. Bennett, 2 Ha. 294, and eases there quoted; Wyllie v. Pollen, 32 L. J. Ch. 782; Boursot v. Savage, L. R. 2 Eq. 134.

2. Wyllie v. Pollen, L. R. 2 Eq. 142; Jones v. Smith, 1 Ph. 244.

3. Dresser v. Norwood, 14 C. B., N. S. 574; in error, 17 ibid. 466.

4. Fuller v. Bennett, 2 Ha. 394. The rule is generally stated to be that notice to an agent, of any fact connected with the business in which he is employed, is notice to the principal. Wade on Notice, § 672; Bracken v. Miller, 4 W. & S. 102;

Astor v. Wells, 4 Wheat. 466; Reed's
Appeal, 34 Penn. St. 207; Jackson v.
Sharp, 9 Johns. 162; Jackson v.
Leek, 19 Wend. 339; Mechanics'
Bank v. Seton, 1 Pet. 309; Sterling
Bridge Co. v. Baker, 75 Ill. 139.

But the principal will not be af-fected by notice to the agent of any fact outside the scope of his agency. Roach v. Karr, 18 Kan. 529; Adams Exp. Co. v. Trego, 35 Md. 47; Congar v. C. & N. W. R'y Co., 24 Wis. 157; Smith v. Water Commissioners, 38 Conn. 208; Wells v. Am. Exp. Co., 44 Wis. 342.

these cases the knowledge acquired must be material to the transaction for which the solicitor or other agent is employed.

(3) When it is sought to fix a purchaser with constructive notice, the question is whether the not obtaining the knowledge was an act of culpable negligence on the part of his agent, and not whether the agent had the means of obtaining that knowledge."

[166] BOOK II.- PART II.

CHAPTER I.

OF THE EXECUTION OF THE AUTHORITY GENERALLY.

In considering whether the contract of an agent is binding upon his principal, a twofold inquiry arises. In short (a) He may execute an authority strictly, or with only a circumstantial variance;1 or

(b) He may act entirely without authority; or

(c) Having authority, he may do something in excess in executing his authority, or he may do less than his authority justifies.

If an agent strictly observes his authority, it will depend upon the form and construction of the contract into which he enters, [167] whether his act will bind his principal and not himself. Although an act varying in substance from the authority is void so far as the principal is concerned,2 yet there are a number of cases in which an authority will be deemed to be properly executed though it is not strictly pursued. Thus, if executors have authority to sell land, and one of them refuse, the others may sell or if one dies.*

5. Ware v. Lord Egmont, 4 De G., M. & G. 460. See, generally, as to notice, Wade on Notice, § 687, and cases cited.

66

1. Com. Dig. Attorney," c. 15.
2. Com. Dig. Attorney," c. 13.
3. Co. Litt. 113a.
4. R. Cro. Car. 382.

It is sufficient if the words and intent of the authority are generally pursued.

The correct principle is undoubtedly that laid down by Chief Justice Holt, who delivered the opinion of the court in Parker v. Kett, 1701, where it is laid down that a circumstantial variation in the execution of an authority is not material.

As to the second class of cases, the rule is that a person who enters into a contract as agent, and without authority, renders himself liable."

As to the third class of cases, one of the earliest authorities is contained in Lord Coke's" Commentary upon Littleton," where it is said: "Regularity, it is true, that where a man doth less than the commandment or authority committed unto him, there (the commandment or authority being not pursued) the act is void. And when a man doth that which he is authorized to do, and more, there it is good for that which is warranted, and void for the rest: yet both these rules have divers exceptions and limitations." The summary of the law by Sir Thos. Clarke, in Alexander v. Alexander, is to the effect that where there is a complete execution of a power and something ex abundanti added, which is improper, there the execution is good, and only the excess is void; but where there is not a complete execution of a power, or where the boundaries between the excess and execution are not distinguishable, it will be bad.