Gilbert Brewster versus Thomas Hobart et al., 15 Pick. 302

Wilde J. delivered the opinion of the Court. As to the question arising on the demurrer, it seems very clear that the plea is not a good and sufficient answer to the firs count. In that count the plaintiff declares on a promise to pay in iron castings on ' demand, the plaintiff furnishing the models and delivering the patterns ; until such demand then was no cause of action on the promise ; so that the time o! the promise, being immaterial, should not be put in issue, as it is by this plea. The third plea is the proper and appropriate answer to this count.

The defendants’ counsel, however, have argued that the first count is insufficient, and therefore that the first fault is op the part of the plaintiff. Without deciding whether this objection to the declaration be valid or not, it is sufficient to say, that the plea being entire, and pleaded to the whole declaration, and being bad as to one count, is so altogether. It follows, that the plaintiff is entitled to judgment on his good counts. Thé defendants cannot obtain any advantage' by a bad plea, nor rest on better ground than they would have rested on, upon a general de murrer to the whole declaration.

Lawes on PL in Assumpsit, 733 ; Shutford v. Penow, Cro. Car. 138 ; Shutford v. Borough, Godb. 437 ; Webb v. Martin, 1 Lev. 48. The remaining questions arise out of the facts which were proved at the trial, and are reported by the judge ; the principal of which is, whether the note or agreement declared on, was signed by the defendants’ agent, legally authorized to bind them- It appears that Pratt had no authority in this matter, except by the oiders from Allen.

The question is, whether Allen, as the defendants’ general agent, could legally delegate his authority to Pratt, so as to authorize him to bind the defendants by a note signed by him in their name.

The general principle is, that a delegated authority can be executed only by the person to whom it is given, for the confidence being personal, cannot be assigned to a stranger. “ If, therefore,” says Paley, p. 128, “ an agent be appointed to sell, he cannot depute the power to a clerk or undér-agent, notwithstanding any usage of trade, unless by express assent of the principal.” If, however, the principal is informed of the usage and makes no objection, that may be evidence of his assent to a sale by the clerk or sub-agent. Thus in the case of Coles v.

Trecothick, 9 Ves. 236, the defendant had retained one Smith, an auctioneer, to sell his estate. The estate was sold by one of Smith’s clerks, during his absence ; but it was proved, that the principal was informed of Smith’s intended absence, and was informed by him, that he was in the habit of allowing his clerks to sign contracts, witness instruments, and conduct his business. Lord Eldon thought, that the evidence of the principal’s assent to the sale by the clerk, was sufficiently express to bind him.

But he reprobated the doctrine, that, if an auctioneer is authorized to sell, his clerks, during his absence, in consequence of any usage, are agents for the party who authorized him. And it is quite clear, that where there is no assent of the principal, either express or implied, an agent or attorney cannot delegate his authority to a sub-agent, so as to authorize him to bind the principal, especially in matters which require any degree of judgment or discretion however small.

Now it appears from the evidence, that Pratt was left to exercise his judgment or discretion in some respects, although the business to be done by him was not difficult. He was to ascertain the balance due on the old note, which he testifies he ascertained as well as he could from the information of one Drake, the clerk of Leach who was absent and had the orders, the evidence of payment, in his trunk in Boston. It does not appear that Pratt had any orders as to the discharge of the old note, and that he took a conditional discharge,- which Allen objected to when it was shown to him.

Pratt therefore had no directions to guide him in this respect, or he did not pursue his directions. Upon this evidence it cannot be said that Pratt acted in pursuance of particular instructions from Allen ; but in some respects he was allowed to be guided by his own judgment and discretion ; and we think it clear, that Allen could not delegate to him an authority so to act. There is also another objection to the execution of the authority delegated to Pratt, which has much weight.

The note purports to be signed by Pratt as agent and attorney oi the defendants, and not by the order and command of Allen the agent.. By this mode of signing he holds himself out as agent of the defendants, and if they had paid the note without objection, it would furnish good presumptive proof of his authority to bind them in other cases.

By this form of signing, Pratt must be understood as asserting the right to bind the defendants as their agent; and by assenting to such a claim the defendants would be considered as sanctioning his claim, and would be bound by his acts although not authorized by Allen, unless the person dealing with him should have knowledge of the circumstances under which the note in question was signed. To allow a delegation of authority by an agent to a sub-agent, executed as this was, to bind the principal, would be dangerous, and we know of no principle of law which will sanction it. The case of Emerson v.

Providence Hat Manufacturing Co., 12 Mass. R. 237, is a strong cas 3 to support these objections. In that case it was decided, that although a general agent of a trading company, being himself also one of the company, may have authority to make promissory notes binding on the company, yet a sub-agent appointed by him would not have such authority. The note m that case was signed by the sub-agent, and was given for a lot of furs purchased by him for the company and which went to their use.

The sale was adjudged valid, because he held himself up as the agent of the company and had repeatedly purchased furs for them before ; but as there was no proof, that he had ever before assumed the authority to bind them by note, and as the general agent could not delegate his authority to him, the Court decided, that the note was not valid and binding on the company. In delivering the opinion of the Court, the late chief justice remarks, “that although the general administration of the affairs of the company was intrusted to the general agent, we see no power given him to appoint sub-agents.

Nor can such power be implied ; for a confidence is supposed to exist between principal and agent, which is not communicated to sub-age.nts, selected and appointed only by the agent.

There is no doubt, that the clerks and other persons necessarily employed by the general agent to execute the business of the company, may be considered their servants, as far as their instrumentality is necessary for the due execution of the general concerns of the company “ but it would not be safe to allow persons of this description to make promissory notes, or other written contracts, to bind the company.” The case also of Blore v. Sutton, 3 Meriv. 237, is a very strong case in support of the objections of the defendants’ counsel, as to this point of the case.

That was a bill for a specific performance of an agreement for a lease evidenced by a memorandum in writing, entered in the book of an authorized agent, but not signed by. him, and it was held not to be binding on the principal, although it was signed by the agent’s clerk, and by his direction. So the case of Coles v. Trecothick, before cited establishes the same general principle, and we have not 'bund any authority or dictum to the contrary. New trial granted.