Doan v. Duncan , 17 Ill. 272 ( 1855 )

Scates, C. J.

The only question is whether the law of agency has been correctly stated in the instructions. We think it has not. Agencies are classed into general and special. But the powers and the instructions under which the agent acts may be more or less restricted in the one case or the other. Power to act generally in a particular business, or a particular course of trade, in a business however limited, would constitute a general agency,—if the agent is so held out to the world, however so restricted his private instructions may be. Story on Agency, Secs. 126,127,131,132,133.

We should not confound the extent of the agent’s authority, whether limited or unlimited, with the nature of the agency, whether general or special, (Sec. 133, note 1 to p. 154.) Either acting within the general scope of the authority held out to the world by the principal will bind him. And this may he shown by the usual acts of such agent in his principal’s business, or by his permitting and acquiescing in such acts when known to him, as well as by express authority and directions. The policy and reason of the rule, is for the protection of the innocent, who deal upon the faith of such authority as the principal holds out or permits as being authorized and sanctioned by him. If any innocent party is to suffer it shall fall upon him who enables the supposed agent under his authority, to impose on others. And it is upon this principle that the principal may frequently be bound to third persons for acts of the agent in violation of his express private instructions, although the agent himself would be liable to his principal for the breach.

Too much stress is laid upon the personal knowledge of plaintiffs as to the character and fact of agency, in the modification of plaintiffs’ instruction and in the first instruction for defendant. They proceed upon the ground that defendant would not be liable for the acts of his general agent, unless the fact of the agency was personally known to plaintiffs, or they had demanded and the agent had produced satisfactory proof of his agency.

This does not accord with my understanding of the law of agency. The principal may, when discovered, be held responsible, although concealed by the agent, and he alone trusted. I presume the instructions were prepared and modified, with a view to deny the sufficiency of the acts in proof, to establish a general agency. But I presume the agency and defendant’s liability must depend upon the facts, rather than plaintiffs’ knowledge of these facts.

The second and third instructions for defendant are clearly wrong. The second woidd be understood as requiring an express authority to make this particular purchase, or that plaintiffs must show that the agent had been in the habit of buying of them for defendant. Much less proof than this instruction contemplates may fix a liability on one for the acts of another, as his agent. Few agencies could be established under the rule laid down in that instruction.

The employment of persons in acts of this kind, buying and selling, frequently constitutes the proof of the agency itself. The third instruction would destroy the force of such acts as evidence, and withdraw them from the jury. For although the agent was “ sometimes employed,” as such, to buy “ at St. Louis or elsewhere,” yet if not held out to the world—and this is what is regarded and is evidence of a holding out to the world—or authorized to buy of plaintiffs, the jury are told not to regard the several purchases the agent was sometimes employed to make. Thus the acts, instances, facts, that are legitimate evidence of a holdings the party out to the world as a general agent are withdrawn as such, and no inference can be made from them. Stripped of these, and the remainder of the instruction requires direct authority to make this purchase. The previous course of dealing by or through the alleged agent, in St. Louis or elsewhere, was legitimate evidence tending to show an agency or not, and if one, its extent; and all such facts should have been left to the jury to draw their own inferences.

Judgment reversed and remanded for a new trial.

Judgment reversed.