How is an agency established? Our readers probably could answer this question in part; try it and see if we are not right.
We must answer by remarking that it depends somewhat upon what is wanted of an agent. Thus, if one be possessed of real estate, situated in some distant place, and is desirous of making a sale, and of selecting and commissioning some one to represent him in such a transfer of property, the appointment would be by a power of attorney, executed as described in our later article on real estate, “to which reference is hereby made.”
To represent another in ordinary business transactions one may act by virtue of a written or verbal agreement. Thus, if A places goods in B’s hands for the purpose of selling through B, this will be sufficient to constitute an agency, and for the purposes of this business B is A’s agent, and all would be protected in dealing with him in such capacity. A bookkeeper in the counting room of his employer is fairly presumed to have authority to receipt bills, to pay bills, render accounts, and in some cases to make purchases, particularly if such part by him done has been sanctioned by the merchant in the past. But he has no authority to sign his employer’s name to notes, bills or checks unless specially authorized.
A minor, though not capable of being a party to a contract himself, may do so for an employer, and thus be an agent, and his principal is responsible for his acts in such capacity, unless they be tortious, or wrongs in themselves. There would obviously be no security for innocent parties in fixing upon any other solution of the question of liability, because if A permits B, though a minor, to act for him and thereby takes advantage of his services in that capacity when they are favorable to his interests, it would be inequitable for him to shift the responsibility when it becomes onerous.
While the principal is responsible for the acts of his agent, when not beyond the authority given, it is the duty of the agent to obey the instructions of his principal. This he is always to do unless some unforeseen situation presents itself, which requires the exercise of a discretionary power and immediate action. And then, an agent would be justified in acting contrary to instructions, or without instructions only when reasonable foresight and experience would approve of the course pursued by him. This for legitimate pursuits, our readers always remembering that an agent is not justified in doing an illegal or immoral act, and that, even though specially instructed so to do. The agency must be apparent and known to exist, that third parties may know themselves to be dealing with one in such capacity, and that agents may not be made to assume responsibilities which do not belong to them. This may be accomplished by advertising in and transacting all business in the principal’s name; or where the name of the principal is not necessarily made use of in the course of the business, the fact of the agent’s business employment being known as such would doubtless be sufficient.
A clerk having occasion, in the course of business, to sign his employer’s name to letters, in receipting bills and such routine business, does it in this manner:
E. E. Emmons,
Per S.
Where special authority is given to sign checks, notes and accept bills in his principal’s or employer’s name, the agent will add his own name, with the word “Attorney.”
It must be remembered that an agency, so far as an agency transaction is concerned, must stand by itself, and not be associated with agent’s private business; that principal’s and agent’s property should be kept entirely distinct.
A commission merchant, although an agent so far as his dealings with his principal or consignor, is not such in relation to other parties, since he does business in his own name, and is recognized as a merchant and not an agent, although his business may be largely a commission business. He is bound to obey instructions of his principal or consignor, whom he charges a percentage for the handling of the goods consigned, incidental expenses, and, in cases where he assumes the indebtedness resulting from the sales, an extra commission.