presumption in these cases is founded upon the agent's possession of the securities, and it ceases when the securities are withdrawn by the creditor; and it is incumbent upon the debtor to assure himself on each occasion when a payment is made that they still continue in the agent's possession, or the payment will not bind the principal, unless his conduct has been such as to estop him to deny the agency.2 But authority to receive payment of a note payable to the order of the principal and not indorsed by him cannot be presumed from the mere possession by the assumed agent.3 This rule does not conflict with that already noticed,' that the mere possession of the bill or statement of an account, though made upon the principal's bill-head and in his handwriting, does not imply authority to receive payment of it. Securities for the payment of money stand obviously upon other ground. 1454. Whether authority to receive payment implied from relation of parties - Husband and wife - Parent and child. Authority to receive payment cannot be implied merely from the existence of one of the so-called domestic relations, unless, as in the case of guardianship of the estate as well as of the person, the power of business representation has been legally conferred. Thus, it need scarcely be stated, perhaps, that the husband or wife has, as such, no implied power to receive pay 1 Guilford v. Stacer, 53 Ga. 618; Megary v. Funtis, 5 Sandf. Sup. Ct. (N. Y.) 376; Brown v. Blydenburgh, 7 N. Y. 141; Cooley v. Willard, 34 Ill. 68, 85 Am. Dec. 296. 2 Smith v. Kidd, 68 N. Y. 130, 23 Am. R. 157; Brown v. Blydenburgh, 7 N. Y. 141; Kellogg v. Smith, 26 N. Y. 18; Purdy v. Huntington, 42 N. Y. 334; Wolford v. Young (1898), 105 Iowa, 512, 75 N. W. R. 349; Harrison v. Le Gore (1899), 109 Iowa, 618, 80 N. W. R. 670; Bartel v. Brown (1899), 104 Wis. 493, 80 N. W. R. 801; Bloomer v. Dau (1899), 122 Mich. 522, 81 N. W. R. 331; Western Security Co. v. Douglas (1896), 14 Wash. 215, 44 Pac. R. 257; Trull v. Hammond (1898), 71 Minn. 172, 73 N. W. R. 642; Rhodes v. Belchee (1899), 36 Oreg. 141, 59 Pac. R. 117; Williams v. Walker, supra; Hatfield v. Reynolds, supra; Van Keuren v. Corkins, supra; Megary v. Funtis, supra; Haines v. Pohlmann, supra; Cooley v. Willard, supra; Brewster v. Carnes, 103 N. Y. 556, 9 N. E. R. 323. 3 Doubleday v. Kress, 50 N. Y. 410, 10 Am. R. 502. 4 See ante, § 1445. ment for the other. Authority for that purpose may, of course, be expressly conferred, or it may be implied from circumstances as in other cases, but it does not exist as the mere consequence of the marriage relation. The same is true also of parent and child. Neither party, by virtue of that relation alone, has implied authority to receive payment for the other, though the authority may be conferred as in other cases.* 2. Construction of the Authority. § 1455. Can receive nothing but money. An agent authorized merely to collect a demand or to receive payment of a debt cannot bind his principal by any arrangement short of an actual collection and receipt of the money. He cannot, therefore, take in payment the note of the debtor payable either to himself," or to his principal; or the note or bond of himself, or of a third person; or a draft or order on a stranger," 8 1 See Mechem on Agency, §§ 62, 63. 2 See Stanton v. French, 83 Cal. 194, 23 Pac. R. 355. 6 Garrett, L. R. 5 C. P. 451; Ward v. 3 See Mechem on Agency, §§ 51, son, 14 Cal. 396: Mathews v. Hamil 59, 86. 4 Robinson v. Anderson, 106 Ind. 152, 6 N. E. R. 12; McCormick v. Wood, etc. Co., 72 Ind. 518; O'Conner v. Arnold, 53 Ind. 203; Ward v. Smith, 7 Wall. (U. S.) 447; Waterhouse v. Citizens' Bank, 25 La. Ann. 77; Rodgers v. Bass, 46 Tex. 505; Moore v. Pollock, 50 Neb. 900, 70 N. W. R. 541; Stuart v. Burcham, 50 Neb. 823, 70 N. W. R. 383; Nicholson v. Pease, 61 Vt. 534, 17 Atl. R. 720; Scully v. Dodge, 40 Kan. 395, 19 Pac. R. 807; Padfield v. Green, 85 Ill. 529; Woodbury v. Larned, 5 Minn. 339; Trull v. Hammond, 71 Minn. 172, 73 N. W. R. 642; McCulloch v. McKee, 16 Pa. St. 289; Aultman v. Lee, 43 Iowa, 404; Graydon v. Patterson, 13 Iowa, 256; McCarver v. Nealey, 1 G. Greene (Iowa), 360; Kirk v. Hiatt, 2 Ind. 322; Corning v. Strong, 1 Ind. 329; Bridges v. ton, 23 Ill. 470; Robson v. Watts, 11 Tex. 764; British & Amer. Mtg. Co. v. Tibballs, 63 Iowa, 468, 19 N. W. R. 319; Pitkin v. Harris, 69 Mich. 133, 37 N. W. R. 61. 5 Corning v. Strong, 1 Ind. 329; McCulloch v. McKee, 16 Pa. St. 289; Robinson v. Anderson, 106 Ind. 152, 6 N. E. R. 12. 6 Miller v. Edmonston, 8 Blackf. (Ind.) 291. 7 McCarver v. Nealey, supra. 8 Langdon v. Potter, 13 Mass. 319; Wilkinson v. Holloway, 7 Leigh (Va.), 277; Smock v. Dade, 5 Rand. (Va.) 639; Smith v. Lamberts, 7 Gratt. (Va.) 138; Wiley v. Mahood, 10 W. Va. 206. 9 McCarver v. Nealey, 1 G. Greene (Iowa), 360; Drain v. Doggett, 41 Iowa, 682; Goldsborough v. Turner, 67 N. C. 403. 2 or horses, wheat, merchandise or other property of any kind;1 or Confederate or other depreciated currency; or corporate bonds, especially where they are worthless; nor can he set off a claim due from himself; or take property for his own use in payment.5 4 3 Where, however, the agent was a bank of deposit, it was held, while recognizing the general rule, that it might receive in payment one of its own certificates of deposit." And so, it has been held, an agent authorized to negotiate a note might accept in place of money a certificate of deposit payable on demand, issued by a solvent bank." § 1456. No authority to release or compromise the debt. It follows, as a corollary of the rule above referred to, that an agent authorized merely to collect or receive payment has no implied power to release the debt, in whole or in part, or to compromise the claim, without payment; nor can he discharge the 1 Rhine v. Blake, 59 Tex. 240; Wright v. Daily, 26 Tex. 730; Kent v. Ricards, 3 Md. Ch. 392; Harper v. Harvey, 4 W. Va. 539; Kirk v. Hiatt, 2 Ind. 322; Aultman v. Lee, 43 Iowa, 404; Martin v. United States, 2 T. B. Monr. (Ky.) 89, 15 Am. Dec. 129; Reynolds v. Ferree, 86 Ill. 570; Hayes v. Colby,65 N. H. 192,18 Atl. R. 251; Williams v. Johnston, 92 N. C. 532, 53 Am. R. 428; Pitkin v. Harris, 69 Mich. 133. 37 N. W. R. 61. 2 Webster v. Whitworth, 49 Ala. 201; Fritz v. Stover, 22 Wall. (U. S.) 198. See Baird v. Hall, 67 N. C. 230. See also 34 L. R. A. 283. 3 Paul v. Grimm (1895), 165 Pa. St. 139, 30 Atl. R. 721, 44 Am. St. R. 648. 4 Whitney v. State Bank, 7 Wis. 620; Butts v. Newton, 29 Wis. 632; Stewart v. Woodward, 50 Vt. 78, 28 Am. R. 488; Rodick v. Coburn, 68 Me. 170; Union School Fur. Co. v. Mason, 3 S. Dak. 147, 52 N. W. R. 671; Deatherage v. Henderson, 43 Kan. 684, 23 Pac. R. 1052; Greenwood v. Burns, 50 Mo. 52; McCormick v. Keith, 8 Neb. 143; Irwin v. Workman, 3 Watts (Pa.), 357; Coffman v. Hampton, 2 Watts & Serg. (Pa.) 377: Bridges v. Garrett, L. R. 5 C. P. 451; Sykes v. Giles, 5 M. & W. 645; Scott v. Irving, 1 B. & Ad. 605; Catterall v. Hindle, L. R. 1 C. P. 187; Hurley v. Watson, 68 Mich. 531, 36 N. W. R. 726; Stetson v. Briggs, 114 Cal. 511, 46 Pac. R. 603; Smith v. James, 53 Ark. 135, 13 S. W. R. 701. 5 Williams v. Johnston, 92 N. C. 532, 53 Am. R. 428. 6 British, etc. Mortgage Co. v. Tibbals, 63 Iowa, 468, 19 N. W. R. 319. 7 Poorman v. Woodward, 21 How. (U. S.) 266, 1 Myer's Fed. Dec., § 61.. 8 Herring v. Hottendorf, 74 N. C. 588; Murphy v. Kastner, 50 N. J. Eq. 214, 24 Atl. R. 564; McHany v. Schenk, 88 Ill. 357; Melvin v. Lamar Ins. Co., 80 Ill. 446; Baird v. Randall, 58 Mich. 175, 24 N. W. R. 659; Nolan debtor and assume the debt himself,' thus making himself the debtor of his principal without the latter's consent. § 1457. May receive part payment.- Authority to collect or receive payment of the whole of a demand implies power to collect or receive a part payment to apply upon it.2 § 1458. But may not extend time.—But although he is thus authorized to receive payment in part, he cannot upon such payment, or in consideration of it, extend the time of payment of the balance. Nor can he extend the time without express authority in any case. § 1459. Not authorized to receive before due.— And even though an agent have authority to receive payment of an obli gation, this does not authorize him to receive it before it is due, in the absence of a known usage of trade or course of business in a particular employment, or habit of dealing between the parties, extending the ordinary reach of the authority. § 1460. No authority to take checks.- Being authorized to receive nothing but money, the agent has no implied power to accept checks. Of course if the check is paid it is a good pay v. Jackson, 16 Ill. 272; Whittington v. Ross, 8 Ill. App. 234; Sonneboom v. Moore (1898), 105 Ga. 497, 30 S. E. R. 947. 1 Miles v. Richwine, 2 Rawle (Pa.), 199, 19 Am. Dec. 638; Chambers v. Miller, 7 Watts (Pa.), 63; Cooney v. Wade, 4 Humph. (Tenn.) 444, 40 Am. Dec. 657. 2 Whelan v. Reilly, 61 Mo. 565. 3 Hutchings v. Munger, 41 N. Y. 155; Ritch v. Smith, 82 N. Y. 627; Gerrish v. Maher, 70 Ill. 470. 4 Chappell v. Raymond, 20 La. Ann. 277; Lockhart v. Wyatt, 10 Ala. 231, 44 Am. Dec. 481. Am. R. 157; Doubleday v. Kress, 50 6 Thompson v. Elliott, 73 IL 221; Smith v. Hall, 19 Ill. App. 17; Thornton v. Lawther, 169 IIL 228, 48 N. E. R. 412; Harrison v. Le Gore, 109 Iowa, 618, 80 N. W. R. 670. 5 Smith v. Kidd, 68 N. Y. 130, 23 7 Hall v. Storrs, 7 Wis. 253. ment,' but if the drawee fails to pay, it is not payment; and if a loss results, the agent also will be liable.2 § 1461. If authorized to take check or note, has no authority to indorse and collect it. But even if authorized to accept checks in payment of the demand, the agent has no implied authority to indorse them and collect the money thereon, and the bank paying the check so indorsed is still liable to the principal for the amount thereof.3 So an agent authorized to accept a note in settlement of a debt has no implied power, after delivering it to his principal, to receive payment of the note.* § 1462. Authority to collect does not authorize sale.Authority to an agent to collect or receive payment of a note or other demand does not imply power to sell, transfer, or otherwise dispose of it. Nor will authority to an agent to accept a note in settlement of a demand, imply power in the agent to afterward sell the note so taken." § 1463. No authority to deal with funds collected. An agent authorized to collect and transmit funds to his principal has no implied authority to enter into any contract concerning the money in his hands or to exchange it for other money with third persons. Such conduct may be treated by the principal as a conversion of the funds." 1 Bridges v. Garrett, L. R. 5 C. P. Am. R. 88, 7 N. W. R. 524, 8 N. W. R. 451. 797. 2 Harlan v. Ely, 68 Cal. 522, 9 Pac. R. 947. 3 Graham v. United States Saving Inst., 46 Mo. 186; Thompson v. Bank, 82 N. Y. 1; Robinson v. Chemical Bank, 86 N. Y. 404; Millard v. Republic Bank, 3 MacArthur (D. C.), 54; McClure v. Evartson, 14 Lea (Tenn.), 495; Holtsinger v. National, etc. Bank. 6 Abb. (N. Y.) Pr. (N. S.) 292; Hogg v. Smith, 1 Taunt. 347. 4 Draper v. Rice, 56 Iowa, 114, 41 5 Smith v. Johnson, 71 Mo. 382; Texada v. Beaman, 6 La. 84, 25 Am. Dec. 204; Hardesty v. Newby, 28 Mo. 567, 75 Am. Dec. 137; Quigley v. Mexico Southern Bank, 80 Mo. 289, 50 Am. R. 503. 6 Ames v. Drew, 31 N. H. 475. 7 Darling v. Younker, 37 Ohio St. 487,41 Am. R. 532; Kent v. Bornstein, 12 Allen (Mass.), 342; Greenwald v. Metcalf, 28 Iowa, 363. |
