Bryant v. Moore , 26 Me. 84 ( 1846 )

The opinion of the Court was drawn up by

Shep-ley J.

— This suit is upon a promissory note made by the defendant on March 30, 1844, and payable to Peter H. McAl-laster or order. The bill of exceptions in substance .states, that McAllaster on that day exchanged a pair of the plaintiff’s oxen with the defendant for a pair of steers, and received of the defendant^ note for twelve dollars for the estimated difference in value. That he returned the steers and note to the defendant on the same day, and informed him, that the plaintiff would not consent, that the exchange should be thus made, but directed him to say, that the “ defendant must send him a note for fifteen dollars or change back.” That they then spoke of a bunch on the jaw of one of the oxen, and defendant said, he would give the note for fifteen dollars, if McAllaster would warrant, that the ox would not be injured by the bunch, that McAllaster did so warrant, and thereupon the note in suit was made,

. The question presented is, whether the plaintiff is bound by that warranty.

The' authority of a general agent may be more or less extensive ; and he may be more or less limited in his action within the scope of it. The limitation of his authority may be public or private. If it be public, those who deal with him must regard it, or the principal will not be bound. ' If it be private, the principal will be bound, when the agent is acting withiu the scope of bis authority, although he should violate his secret instructions.

| A special agent is one employed for a particular purpose only. He also may have a general authority to accomplish that purpose, or be limited to do it in a particular manner. If the limitation respecting the manner of doing it be public or known to the person, with whom he deals, the principal will not be bound, if the instructions are exceeded or violated. If such limitation be private, the agent may accomplish the object in violation of his instructions, and yet bind • his principal by his acts. /

The ease ‘of a servant of a horse dealer, who on sale of a horse warranted him to be sound in violation of his instructions, and yet bound his principal, is an example of the kind of agency last named.

This case differs from it in this respect only, that the manner, in which he was to perforin the' particular act, was communicated to the defendant. But that makes an essential difference ; for, in such case, the principal is not bound. After the first bargain the defendant was informed, that McAllaster had acted without authority, and of the terms, upon which the plaintiff would make the exchange; and he had no right to conclude, that McAllaster had any authority to vary them. There being no warranty in the first bargain, he' could not be authorized to infer, that McAllaster might make one as a part of the second. On the contrary he should have been admonished, by what had taken place, that he had no general authority to make an exchange.

There is no doubt, that if one person knows, that another has acted as his agent without authority, or lias exceeded his authority as agent, and with such knowledge accepts money, property, or security, or avails himself of advantages, derived from the act, he will be regarded as having ratified it. This will not be the case, when the knowledge, that the person has exceeded his authority is not received by the employer so early as to enable him, before a material change of circumstances, to repudiate the whole transaction without essential injury. If, for instance, a merchant should authorize a broker by a written memorandum to purchase certain goods at a price named, and the broker should exhibit it to the seller, and yet should exceed the price, and this should be made known to the merchant, when he received the goods; if he should retain or sell them, he would ratify the bargain made by the broker, and be obliged to pay the agreed price. But if he had received the goods without knowledge, that théy had been purchased at an advanced price, he would not be obliged to restore them, or pay such advanced price, if he could not, when informed of it, repudiate the bargain without suffering loss. In such case he would not be in fault. The seller would be, and he should bear the loss.

When the plaintiff in this case was first informed, that his agent had exceeded his authority, he.had lost the services of the oxen for two months and a half; and the agent was present and denied, that he had made the warranty. The defendant appears to have been sensible, that the plaintiff would then suffer loss by a rescission of the contract, and to have offered compensation therefor. Whether the offer was a reasonable one or not, is immaterial, for the plaintiff under such circumstances was not obliged to rescind. He does not appear to have made any movement in the first instance to effect the exchange, or to have desired it, or to have been in fault, when first informed of the warranty. The defendant could not at that time prescribe the terms, upon which the contract should be rescinded, or insist upon it.

Exceptions overruled.