They were shipped about the end of September. The prices of sugar fell in England in the meantime, and the defendant wrote a countermand of his order, which was received by the plaintiffs on the 20th October. The defendant refused to accept the 400 tons when they arrived in England on the ground that his order had not been complied with. The Court of Queen's Bench, consisting of Chief Justice Cockburn, Justices Mellor and Shee, decided that the defendant was bound to accept and pay for the 400 tons. Nothing turned upon any ambiguity on the instructions. The grounds upon which the court decided were simply that a discretion was given to the plaintiffs by the words "fifty tons more or less," and that the defendant must be taken to have given the order with reference to the circumstances of the Mauritius market. On appeal to the Court of Exchequer Chamber, Baron Cleasby and Mr. Justice Montague Smith were of opinion that the judgment of the Queen's Bench should be affirmed, whilst the majority, Chief Baron Kelly, Barons Martin and Channell, and Mr. Justice Keating, reversed that judgment on the ground that the instructions gave no discretion; that the order being unambiguous for a single cargo of 500 tons in a single ship, no question could be raised respecting the custom at the Mauritius. On behalf of the respondent it was contended, on the authority of Bayliffe v. Butterworth (q), that inasmuch as the order was not so unambig uous as to exclude the custom, the custom of the market [152*] *at Mauritius must be referred to, to explain it.1 This was the opinion of Mr. Justice Montague Smith, one of the minority. In the House of Lords this opinion prevailed, and it was held by the Lords present, namely, Lords Chelmsford, Westbury and Colonsay, to be sufficient for the decision of the case. The judgment of the Court of Exchequer Chamber was reversed. After hearing the opinion of the judges the learned lords decided that the ambiguity of the order justified the mode of executing it. The case was thus brought within the operation of a wellestablished rule. The difference of opinion upon this question was remarkable. In the Queen's Bench, Chief Justice Cockburn, Justices Mellor and Shee were of opinion that the words "fifty tons more or less " (g) 1 Ex. 425; 17 L. J., Ex. 78. 1 As to the effect of usage and custom, see ante, p. 111. gave a discretion, and that they had reference to the advantage of getting a suitable vessel. In the Exchequer Chamber this was substantially the opinion of Baron Cleasby, Mr. Justice Montague Smith, Chief Baron Kelly. Barons Channell and Martin, and Mr. Justice Keating, on the other hand, thought that the authority pointed to a single shipment of one cargo and by one vessel. The judges having been summoned to the House of Lords, Barons Cleasby and Martin supported their former opinions. Justices Byles, Blackburn and Hannen supported the judgment of the Queen's Bench. 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 (r). (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 Sect. 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 (8). (c.) With reference to the construction of an authority which arises by implication, see Book II, Part I, Chap. II. (r) Story's Agency, s. 69. See Sect. 1 of this chapter. 1See ante, p. 145, notes. 77. (s) Paley, by Lloyd, 198; Story, s. 75, 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 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 agree ment, merely because that person has been an agent of his (a). An agent can act only within the scope of his authority; hence declarations or *admissions made by him as to a particular [154*] 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 (c). Hence, what is said by an agent respecting 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 (d). Hence, too, an admission by the servant of a company as to the ferocious habits of a dog which had bitten the plaintiff, was rejected in the absence of proof that the servant had the care of the animal, or control of the place where the dog was kept (e). The ruling in two old cases (ƒ) is calculated to throw some difficulty upon the subject of admissions and declarations. The proposition which may be inferred from these decisions is that where an agent can himself be called, evidence of his admissions will not be received as evidence against his principal, unless the principal's acquiescence in such admissions may be reasonably inferred. In Maestars v. Abram the agent was in the box as a witness, and it was urged on behalf of the defendant that a letter written by the agent to the principal should not be produced, as the agent was there in person. Lord Kenyon ruled that the agent's statement of what he had done on account of the defendant was admissible; but that it should be learned from himself, and not by the letter. To the same effect Mr. Justice Chambre ruled (g) that an affidavit of an agent cannot be used to prove a fact against his principal when the agent himself can be called; but, where the principal has used an affidavit of the agent in an application to the court in which a particular fact is stated, the affidavit of the agent may be used as evidence of that fact. In neither of these cases was there any necessity to apply the (a) Per Sir William Grant, M. R., Fairlie v. Hasting, 10 Ves. 123, 126. (c) Betham v. Benson, Gow. 45. (d) Peto v. Hague, 5 Esp. 134. (e) Stiles v. The Cardiff Steam Naviga tion Company, 33 L. J., Q. B. 310. (f) Maestars v. Abram, 1 Esp. 374, and Johnson v. Ward, 6 Esp. 47. (g) Johnson v. Ward, supra. first part of the above proposition. In the one case (h) the letter was not contemporary with the transaction to which it referred; in the other the agent's affidavit was admitted because the principal had acquiesced in it. The difficulty here referred to has been touched upon by [155*] *Sir W. Grant, M. R. (2): "If any fact material to the interest of either party rests in the knowledge of an agent, it is to be proved by his testimony, and not by his mere assertion. Lord Kenyon carried this so far as to refuse to permit a letter by an agent to be read to prove an agreement by the principal; holding that the agent himself must be examined. If the agreement was contained in the letter, I should have thought it sufficient to have proved that letter was written by the agent, but if the letter was offered as proof of the contents of a pre-existing agreement, then it was properly rejected." This doctrine was discussed incidentally in Bauerman v. Radenius (k), where, upon reference to the case of Biggs v. Lawrence (1), in which Mr. Justice Buller held that a receipt given by an agent for goods directed to be delivered to him was admissible against the principal, it was objected that Lord Kenyon had frequently ruled the contrary since at Nisi Prius, and this was not denied. 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 gesta, 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.1 (h) Maestars v. Abram, supra. To the same effect, see Byers v. Fowler, 14 Ark. 86; Corbin v. Adams, 6 Cush. 95; Stiles v. Western R. R. Co., 8 Met. 46; Baring v. Clark, 19 Pick. 220, 226; La Fayette & Ind. R. R. Co. v. Ehman, 30 Ind. 83; Pinnix v. McAdoo, 68 N. C. 56; Anderson v. Rome, Watertown & O. R. R. Co., 54 N. Y. 334; Willard v. Buckingham, 36 Conn. 395; Sweatland v. Ill. & Miss. Tel. Co., 27 Iowa, 434; Rowell v. Klein, 44 Ind. 290; Robinson v. Walton, 58 Mo. 380; Burnham v. Grand Trunk R'y Co., 63 Me. 298; Campbell v. Hastings, 29 Ark. 512; Wilcox v. Hall, 53 Ga. 635; Wheelock v. Town of Hardwick, 48 Vt. 19; Southern Life Ins. Co. v. Booker, 9 Heisk. 606; White v. Miller, 71 N. Y. 118. See, also, Williamsburg Ins. Co. v. Frothingham, 122 Mass. 391, entries in a book by clerks; Grimshaw v. Paul, 76 Ill. 164, as to admissions of deputy revenue collector not being admissible to bind his principal. See ante, p. 138, note. In Linblom v. Ranney, 75 Ill. 246, |