CHAPTER XVIII.

AGENCY.

Generally. --Agency is the relation existing between persons whereby one of them, called the principal, authorizes the other, called the agent, to act for him in dealings with third persons. The relation of agency may arise by express or implied agreement, and in a few instances may arise by operation of law. Whether the parties to the relation are technically known as principal and agent is immaterial; it is the relation existing between them, no matter by what name it is known, which determines whether the law of agency applies to them. Parties may sustain the relation of principal and agent towards each other even though they distinctly disclaim such relation. The relation of agency exists between attorney and client, employer and employee, if the employe is vested with discretion, between guardian and ward, trustee and cestui que trust, and one partner is the agent of the firm of which he is a member for the purpose of transacting the business of the firm; in short, any person who transacts business for another, by that other's authority, is an agent. No one can act as agent unless he has a principal, and if he acts as such and has no principal, he binds himself or makes himself liable for his acts. When an agent properly acts as such, his act is that of the principal in the same manner as if the principal had acted himself; it follows, therefore, that what one cannot do himself, he cannot do through an agent. But the converse of this proposition is not always true. Generally speaking, a person may do any act through an agent which he may do himself, but there are some acts which must be done in person. For instance, the agent himself may not delegate his authority unless he has authority to do so, nor can a person perform any duty which he owes another which involves personal service, through an agent. The contract of marriage cannot be entered into through an agent.

Authority can usually be given to an agent orally, or may even be implied from circumstances. In a few cases the law requires an instrument in writing, as for instance in the case of sales for real estate, and the making of encumbrances thereon. Any person who can make a valid contract may be a principal or agent. A person who cannot contract himself, cannot, of course, make a contract through another. But one who cannot legally do a certain act for himself may often be able to do so as agent for another, as it is not his capacity which is in question, but that of his principal. Thus, a minor, although he cannot generally make a perfectly valid contract himself, may make one as agent for another. Any person, therefore, who is capable of carrying out the instructions of another, no matter what his other disabilities may be, may be an agent. It has been decided in Wisconsin that a mortgagor of chattels may be the agent of the mortgagee to sell and dispose of them; a husband may be the agent of his wife, and vice versa, and the wife by operation of law has authority to act as agent for her husband in the purchase of house-hold necessities. Corporations, being artificial beings, must necessarily conduct all of their business through agents, such as the usual officers, their directors and employes. The distinction between an agent and an employe technically speaking is that an agent-and an agent always deals with third parties, whereas an employe does not necessarily do so - is vested with descretion, whereas a servant is not. The distinction is of little practical importance, as employes are often vested with discretion, and thus at least for the time being become agents.

Agents have been variously classified. Ordinarily they are divided into general and special agents. A general agent is one who has authority to transact all of the principal's business or all of the principal's business of a certain kind. A special agent is one who has authority only to act in a specific transaction. "A general agent has implied power to do those things which are necessary and proper to be done in carrying on the business in its usual and customary way, and which the principal could and would usually do in like cases if present.

How authority is given.-In order that one person may act as agent for another, there must be an authority granted by the principal to the agent, except in the rare cases where

such authority arises as a matter of law. The authority may be given orally, or in writing, or may be implied from the conduct of the parties. It has been decided in Wisconsin that an agent may be appointed to agree to sell land without any written authority, but that the completed sale itself cannot be made by the agent unless his authority is in writing, under the Statute of Frauds. No person can become an agent unless he has been appointed as such expressly or impliedly, and has accepted such appointment. An exercise of the powers conferred will constitute an acceptance. Correspondence between the owner of real estate and a real estate agent, as to prices, etc. does not make the real estate agent the agent of the owner for any purpose. One who knows that another is claiming to act as agent for him, and acquiesces in the acts of such other, thereby impliedly make him his agent. One who delivers a blank instrument with his signature to another for certain purposes, thereby constitutes such other his agent to make the proper insertions. An agent cannot execute an instrument under seal unless his authority to do so is also under seal. One who allows another to act as agent for him and encourages third parties to deal with him, or acquiesces in such dealings, is estopped to deny the agent's authority as to such third parties, although such agent had no actual authority. "A wife signed a note with her husband; and delivered to him a mortgage which was blank as to description, upon his representation that it was to cover certain land belonging to him. He inserted the description of the homestead, which belonged to the wife, and negotiated the note and mortgage to the payee in the note, who advanced the money without notice of the fraud. The mortgage appeared to be in due form and properly acknowledged, and there was nothing suspicious on the face of the papers. Held, that the wife was bound by the acts of her husband, and that the mortgage was valid, whether it was in fact acknowledged by her or not. By signing a joint note with her husband the wife clothed him with prima facie evidence of her intention to charge her separate estate, and cannot deny such intention as against an innocent holder of the note who advanced money upon the faith thereof." "Where the evidence tended to show, that one who afterwards purchased wrote to the plaintiff, inquiring for logs; that shortly afterwards the owner of the logs agreed to pay

the plaintiff for finding a purchaser whatever the logs would bring over a certain price; that the plaintiff notified such purchaser that such logs could be purchased at a stated price, recommending their purchase, and thereupon such purchaser made the purchase direct from the owner, -in the absence of any evidence showing that the purchaser paid or promised to pay the plaintiff for securing such purchase, it was held that the plaintiff was the agent of the owner." "Proof that a certain person had prepared a catalogue of the cattle belonging to the estate of a deceased person and that he answered a letter addressed to the estate in relation thereto; that he afterwards received money from a would-be purchaser, and bid them in for such purchaser at the administrator's sale, held not to be sufficient to establish that he was agent for the administrator of the estate." "A mortgagor, wishing to pay his negotiable note secured by mortgage before it became due, put the money in the hands of a loan agent to be paid over to the mortgagee, who had agreed to receive it from him. Held, that such loan agent was merely an agent of the mortgagor to transmit the money, and was not a debtor of the mortgagee......The satisfaction of the mortgage of record by the mortgagee before he received the money did not operate to pay the debt or to make the agent the debtor of the mortgagee so as to render him liable to garnishment as such.'

The party claiming that an agency exists has the burden of proving it. The mere fact that one assumes to act as agent for another is no evidence of agency. The fact that a note is made payable at a bank does not make the bank the agent of the payee to receive payment. The admissions of an agent that he is acting as such for a certain person are not evidence of agency, as such admissions are hearsay evidence. The agent himself, however, may be called as a witness to testify as to his appointment.

Generally, an agent cannot act for both parties to a transaction. The reason for this is obvious. It has been decided in Wisconsin that "the same person cannot be employed by the seller and purchaser of the same land, by the first to sell and the other to purchase, where their interests in the service of such person are in any respect adverse or antagonistic, or where his will, discretion or judgment is to be or may be used adversely to both nor can he recover for his services

from either."

"One who acts as the vendor's agent in the sale of property without the knowledge of the vendee cannot recover from the vendee for his services in effecting such sale as his agent; his concealment of the fact that he was the agent of the vendor being fraud in the law." "A president of a bank, who was also vice-president of a railroad company, though empowered jointly with the president of the railroad company to compromise its debts, was held to be prohibited from acting as agent both for the bank and the railroad company in making a transfer of the property of the latter in payment of its debts to the former." "An agent of the vendor of land, also one of the promoters of a corporation to buy land, who sells land to the corporation for a sum which includes a large commission to himself, though with knowledge of the vendor, thereby commits a fraud upon the corporation and the latter may exercise an option tendering back the property received to rescind the contract and to compel the vendor to refund the consideration paid." An agent may act for both parties when both parties consent to the arrangement. Thus "an agent employed to sell land at a fixed price who after finding a purchaser at that price acts with the knowledge of the vendor as the agent of such purchaser in signing his name to the contract of sale is not thereby precluded from a recovery from the vendor of his agreed commission." "Nor will a recovery be prevented on the ground that the agent was acting as the agent of both parties where it is expressly agreed that he is not to receive any compensation from the purchaser, where the vendor fixes the price." "One who in the sale or exchange of property acts merely as a middeleman to bring the parties totogether, they making their own contract, may recover compensation from both parties. But where the person so employed is more than a middleman and acts as broker or agent in effecting the sale or exchange, he cannot recover, especially where the party sought to be charged was at the time ignorant of the employment by the other party."

The authority conferred.-To determine whether the principal is bound by the act of an agent it is necessary to ascertain the extent of the authority conferred on the agent, either expressly or impliedly. Third persons dealing with an agent are bound to know his authority and deal with him