A distinction must be drawn between the rights which flow from such a special property in goods which an agent is employed to sell as entitles him to maintain an action against the buyer, and rights which flow from an authority coupled with an interest. In the former case the authority is revocable, in the latter it is irrevocable. This distinction was brought out clearly in Taplin v. Florence (z), in the year 1851. In that case it was argued that an auctioneer has an interest or special property in goods which are intrusted to him for sale, and, therefore, an irrevocable authority. In deciding that an auctioneer has no such irrevocable authority, Chief Justice Jervis distinguished the case of Williams v. Millington (a), on the ground that that case established a wellrecognized principle, namely, that an auctioneer has a sufficient property in goods which he is employed to sell to maintain an action for such goods against a buyer; but all the learned judges were clear that his authority was not coupled with an interest. The following powers have been held to be authorities [86*] *coupled with an interest, and irrevocable: An authority to sell premises, and to apply the proceeds in liquidation of a debt due to the donee of the authority and his partners (c); an authority to sell certain shares of a ship given by a person largely indebted to the donee of the power (d); a power of attorney given as part of a security for money, or to effectuate any security (e); an authority to sell in consideration of the agent forbearing to sue the principal for prior advances (ƒ); a power of attorney executed for valuable consideration (g). Lastly, cases may arise in which the appointment of the agent to act on behalf of a company is mentioned merely in the articles of association. A question was raised in a recent case with respect to the effect of a clause in the articles stating such appointment, and it was decided that articles of association state the arrangement between the members; they are an agreement inter socios, factor, and a bill drawn against the (a) 1 H. Bl. 81. (c) Gaussen v. Morton, 10 B. & C. 731. (d) Watson v. King, 4 Cowp. 272. (e) Walsh v. Whitcomb, 2 Esp. 565; Drinkwater v. Goodwin, Cowp. 251. (f) Per Parke, B., Raleigh v. Atkinson, 6 M. & W. 676. (g) Bromley v. Holland, 7 Ves. 28. and do not constitute a contract between the company and third parties. Hence, when articles contained a clause in which it was stated that the plaintiff should be solicitor to the company, and should transact all the legal business of the company, and should not be removed from his office except for misconduct, it was held that the plaintiff could not bring an action against the company for breach of contract in not employing him as solicitor (h). In the Court of Appeal, Lord Cairns reserved his judgment as to whether such a clause is obnoxious to the principles by which the courts are governed in deciding on questions of public policy, but observed that it was a grave question whether such a contract is one that the courts would enforce. It is probable, too, that the contract alleged by the plaintiff did not satisfy the Statute of Frauds. An agent may of course renounce his agency at any stage;1 but if the agency has been undertaken for a valuable consideration, he will be liable in damages to his principal, and the same rule will apply even in the case of gratuitous undertakings which have been performed in part by the agent (i).3 *SECT. 3.- By Operation of Law. [87*] The law with respect to the dissolution of the contract by operation of law has been summarized in the following terms by Mr. Justice Story: "A revocation by operation of law may be by a change of condition or of state, producing an incapacity of either party. This proceeds upon a general rule of law, that the derivative authority expires with the original authority from which (h) Eley v. The Positive, etc. Assurance Co., 1 Ex. Div. 20, 88. 1 Where the duration of a contract of agency is not fixed, the agent may terminate it on giving reasonable notice. Barrows v. Cushway, 37 Mich. 481. An agent may forfeit his right to his place by want of fidelity to his principal, whatever may be the nature of his default, and whether it is or not a source of injury to his principal. Henderson v. The Hydraulic Works, 9 Phila. 100. So, where it was proved that A. had authority from B. to sell a slave, and that A. afterwards, setting up a claim to the property as his own, or upon some claim of unsettled accounts with B., ran off with the slave and sold her with a view to appropriate the proceeds to himself, it was held that the fraudulent conduct of A. worked a revocation of his authority as B.'s agent. Case v. Jennings, 17 Tex. 661. See ante, p. 81. White v. Smith, 6 Lans. 5. (i) See chapter on Liability of Agent to Principal, Sect. 3. See post, p. 235. it proceeds. The power of constituting an agent is founded upon the right of the principal to do the business himself; and when that right ceases, the right of creating an appointment, or of continuing the appointment of an agent already made for the same purpose, must cease also. In short, the derivative authority cannot generally mount higher, or exist longer, than the original authority" (k). In Coombe's case (1) it was resolved, that where a person has authority as an attorney to do an act, he must do it in the name of him who gave the authority; for he appoints the attorney to be in his place and represent his person. Hence the attorney or agent cannot act in his own name, nor do it as his own act, but in the name and as the act of him who gave the authority. Hence if a person has a letter of attorney to receive a testator's rents, this authority will be determined with the testator's death, being a mere naked authority (m).1 (k) Story on Agency, sect. 481. (1) 9 Rep. 76 b. of the principal or a member of the firm, even though the agency arises (m) Shipman v. Thompson, Willes, from the fact of the existence of a part105, n. 'The death of the principal operates as an instantaneous revocation of the agency, where it is a naked power unaccompanied with an interest; and every act of the agent thereafter performed is void so far as the estate of the principal is concerned. Clayton v. Merrett, 52 Miss. 353; Galt v. Galloway, 4 Pet. 332; Hunt v. Rousmanier, 8 Wheat. 174; Lewis v. Kerr, 17 Iowa, 73; Davis v. Windsor Savings Bank, 46 Vt. 728; Saltmarsh v. Smith, 32 Ala. 404; Travers v. Crane, 15 Cal. 12; Rigs v. Caye, 2 Humph. 350; Gale v. Tappan, 12 N. H. 145; Harper v. Little, 2 Me. 14; Smout v. Ilbery, 10 M. & W. 1; Farrow v. Wilson, L. R., 4 C. P. 744. See, however, contra, as to payments made to the agent in ignorance of the death of the principal, Cassidy v. McKenzie, 4 W. & S. 282; Dick v. Page, 17 Mo. 234; Carriger v. Whittington, 26 Mo. 311; Ish v. Crane, 8 Ohio St. 520. A revocation is effected by the death nership between the principal and agent. Travers v. Crane, 15 Cal. 12; Marlett v. Jackman, 3 Allen, 287; Johnson v. Wilcox, 25 Ind. 182. See, however, Bank of N. Y. V. Vanderhorst, 32 N. Y. 553, where it was held that where an agent of a firm, authorized to draw its moneys from the bank and apply the same to the uses of the firm, continues to do so after the death of one of the members thereof, without knowledge on his part or on the part of the bank, of such death, he acts within the scope of his authority, and his acts bind the firm. See, also, Wilson v. Stewart, 5 Pa. L. J. Rep. 450. So, a dissolution of a partnership revokes a power of attorney given by the firm. Schlater v. Winpenny, 75 Penn. St. 321. But a mere change in the name of a firm, when the firm under the new name is composed of the same members as that under the old one, does not revoke an agency conferred upon it. Billingsley v. Dawson, 27 Iowa, 210. Mr. Justice Buller remarked, in Salte v. Field (n), that a question had been raised with respect to an agent acting under a power of attorney, whether acts which were done by him before he knew of the revocation of the power were good against the principal, and intimated that the principal in such a case could not avoid the acts of his agents done bonâ fide if they were to his disadvantage, though he might consent to waive such as were for his benefit. So in another case it is ruled that the credit arising from an ostensible employment continues (at least with regard to those who have been accustomed to deal on the faith of that employment) until they have notice of its being at an end, or till its termination is notorious. It is said, however, that these principles are true only of an agency terminated by express revocation, and not of an implied revocation *by the death of the [88*] principal. Thus, Lord Ellenborough ruled, in Watson v. King (0), which was decided in 1815, that a power coupled with an interest cannot be revoked by the person granting it, but that it is necessarily revoked by his death, inasmuch as a valid act cannot be done in the name of a dead man.1 In Blades v. Free (p), decided in 1829, a man who had cohabited for some years with a woman as his wife went abroad and died, the Court of King's Bench held that the woman might have the same authority to bind him for necessaries as if she had been his wife; but that his executor was not bound to pay for any goods supplied to her after his death, although the goods were supplied before information of his death had been received.2 The death of the agent of course operates to revoke his authority. Jackson Ins. Co. v. Partec, 9 Heisk. 296; Gage v. Allison, 1 Brev. 495; Merrick's Estate, 8 W. & S. 402. The death of an agent acting under a letter of attorney containing a power of substitution also acts as a revocation of the authority of an agent substituted by him under the power. Lehigh Coal & Nav. Co. v. Mohr, 83 Penn. St. 228; Peries v. Aycinena, 3 W. & S. 79. (n) 5 T. R. 214. (0) 4 Camp. 272. 1 Powers coupled with an interest, however, survive the principal, and may be executed in the name of the attorney. Gilbert v. Holmes, 64 Ill. 548; Bonney v. Smith, 17 Ill. 531; Travers v. Crane, 15 Cal. 12; Hunt v. Rousmanier, 8 Wheat. 174; Knapp v. Alvord, 10 Paige, 205. An agent for the sale of goods, with an interest in the proceeds, is not deprived of the power to sell, by the death of the principal. Merry v. Lynch, 68 Me. 94. See, however, ante, p. 83, note. 2 See Smout v. Ilbery, 10 M. & W. 1, and cases cited ante, p. 87. Mr. Justice Bayley said: "There is no doubt that a man may make an express contract for goods to be supplied to his wife or mistress after his death, for which his estate would be liable. But here there was no express contract. What, then, is the inference of law? That the woman had the same authority to bind the deceased by her contracts as if she had been his wife, and such an authority would be revoked by his death. It is said that this is hard upon the tradesman. But he trusts at his peril, whether the credit is given upon the order of a married woman or a mistress. If he is unwilling to run the risk, he should require an express contract; if he does not do so and sustains a loss, that is by reason of his own carelessness." A revocation of a bare authority by death is a very different thing from a revocation by the act of the party. In the latter case the plaintiff would undoubtedly be entitled to recover the reasonable expenses he might have incurred in endeavouring to execute the authority; but in the former, the failure would be the fault of no one; and whatever might be the expense incurred, the plaintiff could not recover against the administratrix (7). The authority of an agent is, as a rule, determined by the bankruptcy of his principal, and in the absence of evidence that the trustee of the bankrupt has invested the agent with authority to act for him, or that the authority of the agent is coupled with an interest, the agent has no authority to receive money due to the principal, or to pay away his money (r).1 In a case (s) [89*] *where, upon the bankruptcy of an underwriter, the ques tion was whether the authority of an insurance broker to settle losses on his behalf and apply the premiums in hand to the satisfaction of the just claims of the assured was not at an end, it was observed by the court that, "inasmuch as the bankrupt was not competent after his bankruptcy to pay or apply this fund himself in satisfaction of these claims of the assured, it followed as a consequence, that he could not authorize his broker so to do; (q) Per Crowder, J., in Campanari v. Woodburn, 15 C. B. 409. (r) Minett v. Forrester, 4 Taunt. 541; Drinkwater v. Goodwin, Cowp. 251. A broker who holds stocks on a margin is bound to take notice of the buyer's bankruptcy; and if he continues to hold them for an unreasonable length of time after the buyer's bankruptcy and then sells them without notice, he must sustain the loss. In re Daniels, 13 Nat. Bank. Reg. 46. (s) Parker v. Smith, 16 East, 382. |