Agency - 1849- 1899

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This page lists 33 cases, and was prepared on 04 January 2012.

Acraman And Another, Assignees Of Garrett, A Bankrupt -v- Herniman [1851] EngR 429; (1851) 16 QB 998; (1851) 117 ER 1164
6 May 1851	Insolvency, Agency
	Link[s] omitted

Robertson -v- Wait (1853) 8 Ex 299
1853	Contract, Agency	Casemap 1 Citers

Collen -v- Wright (1857) 8 B & E 647
1857	Agency	Casemap 1 Citers
	The law of breach of the warranty of authority should be read to imply a remedy to an innocent third party, with whom the agent has purported without authority to make a contract or to reach a settlement of outstanding liabilities under a contract, against the agent.

Slack -v- Crewe [1860] EngR 244; (1860) 2 F & F 59; (1860) 175 ER 958
1860	Agency, Landlord and Tenant
	It is doubtful whether an agent to let a house has an implied general authority to let persons into possession, but slight evidence will be sufficient to show an express authority.
	Link[s] omitted

Platzhoff -v- Lebean [1865] EngR 40; (1865) 4 F & F 545; (1865) A)
1865	Agency, Contract
	Link[s] omitted

Edmunds (PO) -v- Bushell And Jones [1865] EngR 12 (B); (1865) 4 F & F 1044
1865	Agency, Employment
	Link[s] omitted

Salomons -v- Pender [1865] EngR 365; (1865) 3 H & C 639; (1865) 159 ER 682
21 Apr 1865 Bramwell B	Agency	Casemap 1 Citers
	When a person who purports to act as an agent is not in a position to say to his principal, "I have been acting as your agent, and I have done my duty by you," he is not entitled to recover any commission from that principal. Bramwell B said: "It is true that . . the defendant has had the benefit (if it be one) of the plaintiff's services. But the defendant is in a position to say, 'What you have done has been done as a volunteer, and does not come within the line of your duties as agent.'" And in the same case Martin B. quoted the passage from Story on Agency, where it is said: "In this connection, also, it seems proper to state another rule, in regard to the duties of agents, which is of general application, and that is, that, in matters touching the agency, agents cannot act so as to bind their principals, where they have an adverse interest in themselves. This rule is founded upon the plain and obvious consideration, that the principal bargains, in the employment, for the exercise of the disinterested skill, diligence, and zeal of the agent, for his own exclusive benefit. It is a confidence necessarily reposed in the agent, that he will act with a sole regard to the interests of his principal, as far as he lawfully may; and even if impartiality could possibly be presumed on the part of an agent, where his own interests were concerned, that is not what the principal bargains for; and in many cases, it is the very last thing which would advance his interests. The seller of an estate must be presumed to be desirous of obtaining as high a price as can fairly be obtained therefor; and the purchaser must equally be presumed to desire to buy it for as low a price as he may."
	[ Commonlii ]

Jones -v- Phipps [1868] LR 2 QB 567
1868 QBD	Landlord and Tenant, Agency	Casemap 1 Citers
	For many years, an agent had, with the authority of his principals, dealt with an estate as his own and negotiated with the tenant as to the terms and continuance of the holding. Held: It was incidental to that authority that he should determine the tenancy by notice to quit. The tenant was not aware of the existence of the agent's principals and considered the agent to be the landlord.

Calder -v- Dobell (1871) LR 6 CP 486
1871	Agency	Casemap 1 Citers
	"an agent who contracts in his own name does not cease to be contractually bound because it is proved that the other party knew when the contract was made that he was acting as agent."

Australasian Steam Navigation Co -v- Morse (1872) LR 4 PC 222
1872 PC Sir Montague Smith	Agency	Casemap
	Sir Montague Smith: "... when by the force of circumstances a man has the duty cast upon him of taking some action for another, and under that obligation, adopts the course which, to the judgment of a wise and prudent man, is apparently the best for the interest of the persons for whom he acts in a given emergency, it may properly be said of the course so taken, that it was, in a mercantile sense, necessary to take it."

The Australasian Steam Navigation Company -v- William Henry Morse And George Philip Morse [1872] EngR 22; (1872) 8 Moo PC NS 482; (1872) 17 ER 393
22 Mar 1872 PC	Commonwealth, Transport, Agency
	The authority of the Master of a Ship to sell the goods of an absent Owner is derived from the necessity of the situation in which he is placed; and, consequently, to justify his selling, he must establish (1) a necessity for the sale; and (2) inability to communicate with the Owner. Under these conditions, and by force of them, the Master becomes the Agent of the Owner, not only with the power, but under the obligation (within certain limits) of acting for him; but he is not, in any case, entitIed to substitute his own judgment for the will of the Owner, in selling the goods, where it is possible to communicate with the Owner.
	Link[s] omitted

Hamilton -v- Dixon 1873 1R 72
1873 Lord Justice Clerk Moncrieff	Agency	Casemap 1 Citers
	The court heard an allegation concerning an alleged obligation to deliver pig iron. Held: "it was too plain to require argument that in order to authorise an agent to give away his employer's goods without consideration, direct and immediate sanction to the individual transaction would be necessary."

Parker -v- McKenna (1874) LR 10 Ch 124
1874 CA James LJ, Lord Cairns LC	Agency, Company	Casemap
	The directors of a bank acquired for themselves, and made a profit on, certain shares the subject of a new issue that were not taken up by the bank's shareholders. Held: James LJ said: "I do not think it is necessary, but it appears to me very important, that we should concur in laying down again and again the general principle that in this court no agent in the course of his agency, in the matter of his agency, can be allowed to make any profit without the knowledge and consent of his principal; that that rule is an inflexible rule, and must be applied inexorably by this court, which is not entitled, in my judgment, to receive evidence, or suggestion, or argument as to whether the principal did or did not suffer any injury in fact by reason of the dealing of the agent; for the safety of mankind requires that no agent shall be able to put his principal in the danger of such an inquiry as that." Lord Cairns LC said: 'The Court will not inquire, and is not in a position to ascertain, whether the bank has or has not lost by the acts of the directors. All that the Court has to do is to examine whether a profit has been made by an agent, without the knowledge of his principal, in the course and execution of his agency, and the Court finds, in my opinion, that these agents in the course of their agency have made a profit, and for that profit they must, in my opinion, account to their principal.'

Hollins -v- Fowler (1875) LR 7 HL 757
1875 HL Blackburn J, Brett J	Torts - Other, Agency	Casemap 1 Cites 1 Citers
	One who deals with goods at the request of the person who has the actual custody of them, in the bona fide belief that the custodier is the true owner, or has the authority of the true owner, should be excused for what he does if the act is of such a nature as would be excused if done by the authority of the person in possession if he was a finder of the goods or intrusted with their custody. Thus a warehouseman with whom goods had been deposited is guilty of no conversion by keeping them or restoring them to the person who deposited them with him, though that person turns out to have had no authority from the true owner. The same principle applies to persons "acting in a subsidiary character, like that of a person who has the goods of a person employing him to carry them, or a caretaker, such as a wharfinger". Blackburn J (Advising the House): "If, as is quite possible, the changes in the course of business since the principles of law were established make them cause great hardships or inconvenience, it is the province of the Legislature to alter the law."

Panama & South Pacific Telegraph Co -v- India Rubber, Gutta Percha, and Telegraph Co [1875] 9 Ch App 515
1875	Agency	Casemap 1 Citers
	Where his agent has taken a secret commission, the transaction is voidable at the election of the principal who can rescind it provided counter-restitution can be made.

National Mercantile Bank Ltd -v- Rymill [1881] 44 LTNS 767
1881 CA Bramwell LJ, Brett and Cotton LJJ	Agency, Torts - Other	Casemap 1 Citers
	The plaintiff was the owner of horses the subject of a bill of sale. The grantor of the bill sold the horses privately in the defendant's auction yard and following the sale, on the grantor's instructions, the auctioneer delivered the horses to the buyer. It was held that there had been no conversion. Held: The auctioneer did not claim to transfer the title and did not purport to sell; all the dominion he exercised over the chattels was to redeliver them to the person to whom the man from whom he had received them had told him to redeliver them. On the evidence there had been no sale by the auctioneer. A bailee escapes liability for conversion, not only where he merely redelivers to his bailor, but where he delivers at the bailor's directions to a third party without knowledge of any adverse claim, though with knowledge that such delivery is in pursuance of a sale or other disposition.

National Mercantile Bank -v- Rymill (1881) 44 LTNS 767
1881 Bramwell LJ, Brett and Cotton LJJ	Contract, Agency	Casemap 1 Citers
	The plaintiff owned horses subject to a bill of sale. The grantor of the bill sold the horses privately in the defendant's auction yard and following the sale, on the grantor's instructions, the auctioneer delivered the horses to the buyer. Held: There had been no conversion. Bramwell LJ: [the auctioneer:] "has not claimed to transfer the title and he has not purported to sell; all the dominion he exercised over the chattels was to redeliver them to the person to whom the man from whom he had received them had told him to redeliver them." Brett and Cotton LJJ agreed that on the evidence there had been no sale by the auctioneer. This case has been criticised, mainly for the conclusion that there had been no sale by the auctioneer.

West London Commercial Bank -v- Kitson [1883] 12 QBD 157
1883	Agency	Casemap 1 Citers

Re Lewis ex parte Helder (1883) 24 ChD 339
1883 CA Sir Baliol Brett MR	Insolvency, Agency	Casemap
	An agent in obedience to a previous instruction of his principal paid away money of the principal which was in his hands knowing before he made the payment that when completed it would constitute an act of bankruptcy on the part of his principal. The principal was afterwards adjudicated bankrupt. Held: The agent was not liable to account to the trustee for the money paid away. The Court did not rely upon the fact that the money was paid away before adjudication which would have been sufficient, but on the fact that the money did not become the trustee's money until the completion of the act of bankruptcy to which his title would relate back, ie. until after the money had left the agent's hands: "It appears to me that on this ground - that the money did not become the trustee's money until the payment had been completed- Mr. Roberts is not liable to the trustee"

Firbank's Executors -v- Humphryes (1886) 18 QBD 54
1886 CA Lord Esher MR	Agency	Casemap 1 Citers
	The plaintiff was induced to enter into a transaction by the someone pretending to be the principal. The defence was that he was the principal's innocent agent. Held: Lord Esher MR discussed the warranty of authority: "The rule to be deduced is, that where a person by asserting that he has the authority of the principle induces another to enter into any transaction which he would not have entered into but for that assertion, and that assertion turns out to be untrue, to the injury of the person to whom it is made, it must be taken that the person making it undertook that it was true, and he is liable personally for the damage that has occurred."

Blackburn, Low & Co -v- Vigors (1886) 17 QBD 553
1886 CA Lord Esher MR, Lindley LJ,	Agency, Insurance, Torts - Other	Casemap 1 Cites 1 Citers
	Lord Esher MR: "This seems to me to be the true doctrine. The freedom from mis-representation or concealment is a condition precedent to the right of the assured to insist on the performance of the contract, so that on a failure of the performance of the condition the assured cannot enforce the contract." Lindley LJ: "It is a condition of the contract that there is no misrepresentation or concealment either by the assured or by anyone who ought as a matter of business and fair dealing to have stated or disclosed the facts to him or to the underwriter for him." Lord Halsbury LC warned against "the somewhat vague use of the word 'agent'" which, he said, "leads to confusion" in insurance cases.

Toulmin -v- Millar (1887) 58 LT 96
1887 HL Lord Watson	Agency	Casemap 1 Citers

Blackburn, Low & Co -v- Vigors (1887) 12 App Cas 531
1887 HL Lord Macnaghten, Lord Watson, Lord Fitzgerald	Agency	Casemap 1 Cites 1 Citers
	There was a condition precedent of full disclosure of material facts in an insurance contract. The duty of an agent to disclose circumstances within his own knowledge to the insurer is independent of the duty of the insured to make disclosure, but: "... it would, in my opinion, be a dangerous extension of the doctrine of constructive notice to hold that persons who are themselves absolutely innocent of any concealment or misrepresentation, and who have not wilfully shut their eyes or closed their ears to any means of information, are to be affected with the knowledge of matters which other persons may be morally though not legally bound to communicate to them." .

Boston Deep Sea Fishing & Ice Co -v- Ansell (1888) 39 ChD 339
1888 CA Bowen LJ, Cotton LJ, Fry LJ	Agency, Employment	Casemap
	An employer having dismissed an employee (its managing director) later learnt of the employee's fraud. Held: The employer was allowed to rely upon that fraud to justify the dismissal. Where an agent is in wrongful repudiation of his contract with his principal, he loses his right to claim remuneration from his principal. It is sufficient if there was a fundamental breach of contract justifying a dismissal whether or not the employer knew of it at the time of dismissal. The managing director could not recover his salary for the part of the year which he had completed before his dismissal. His right to his salary was conditional on his fulfilling his duties for the year and that condition had not been fulfilled. The contract was indivisible, and no payment under it could be claimed. Cotton LJ said: "Then when he was engaged in that contract, in respect of the matters of that very contract, he in one instance got a percentage of 1 per cent. from the Shipbuilding Company, and, in the other case, he insisted on getting - that is the evidence - and did get, a lump sum of £50. It is suggested that we should be laying down new rules of morality and equity if we were to so hold. In my opinion if people have got an idea that such transactions can be properly entered into by an agent, the sooner they are disabused of that idea the better. If a servant, or a managing director, or any person who is authorized to act, and is acting, for another in the matter of any contract, receives, as regards the contract, any sum, whether by way of percentage or otherwise, from the person with whom he is dealing on behalf of his principal, he is committing a breach of duty. It is not an honest act, and, in my opinion, it is a sufficient act to shew that he cannot be trusted to perform the duties which he has undertaken as servant or agent. He puts himself in such a position that he has a temptation not faithfully to perform his duty to his employer. He has a temptation, especially where he is getting a percentage on expenditure, not to cut down the expenditure, but to let it be increased, so that his percentage may be larger. I do not, however, rely on that, but what I say is this, that where an agent entering into a contract on behalf of his principal, and without the knowledge or assent of that principal, receives money from the person with whom he is dealing, he is doing a wrongful act, he is misconducting himself as regards his agency, and, in my opinion, that gives to his employer, whether a company or an individual, and whether the agent be a servant, or a managing director, power and authority to dismiss him from his employment as a person who by that act is shewn to be incompetent of faithfully discharging his duty to his principal." Bowen LJ said: "This is an age, I may say, when a large portion of the commercial world makes its livelihood by earning, and by earning honestly, agency commission on sales or other transactions, but it is also a time when a large portion of those who move within the ambit of the commercial world, earn, I am afraid, commission dishonestly by taking commissions not merely from their masters, but from the other parties with whom their master is negotiating, and with whom they are dealing on behalf of their master, and taking such commissions without the knowledge of their master or principal. There never, therefore, was a time in the history of our law when it was more essential that Courts of Justice should draw with precision and firmness the line of demarcation which prevails between commissions which may be honestly received and kept, and commissions taken behind the master's back, and in fraud of the master. . . Now, there can be no question that an agent employed by a principal or master to do business with another, who, unknown to that principal or master, takes from that other person a profit arising out of the business which he is employed to transact, is doing a wrongful act inconsistent with his duty towards his master, and the continuance of confidence between them. He does the wrongful act whether such profit be given to him in return for services which he actually performs for the third party, or whether it be given to him for his supposed influence, or whether it be given to him on any other ground at all; if it is a profit which arises out of the transaction, it belongs to his master, and the agent or servant has no right to take it, or keep it, or bargain for it, or to receive it without bargain, unless his master knows it. Fry LJ said: "In my judgment, the conduct of Ansell in so dealing was a fraud—a fraud on his principals—a fraud, not according to any artificial or technical rules, but according to the simple dictates of conscience, and according to the broad principles of morality and law, and I think it is the duty of the Courts to uphold those broad principles in all cases of this description. We were invited to consider the state of mind of Mr. Ansell; whether he thought it wrong; in other words we are invited to take as the standard for our decision the alleged conscience of a fraudulent servant. I decline to accept any such rule as one on which the Court is to decide such questions."

Lyell -v- Kennedy (1889) 14 App Cas 437
1889 HL	Equity, Agency	Casemap 1 Cites 1 Citers
	The true owner may recover money which was rightfully his from a person to whom the money in question had been wrongly paid by the collector of the money. A fiduciary is one who has undertaken, whether on request or without request, of his own motion to act on behalf of another in circumstances in which equity will not allow him ‘to enter into engagements in which he has, or can have, a personal interest conflicting, or which possibly may conflict, with the interests of those whom he is bound to protect’.

Barker -v- Furlong (1891) 2 CH 172
1891 Romer J	Agency, Torts - Other	Casemap 1 Citers
	The executor plaintiffs were entitled to furniture which was sent to auction without their knowledge or consent. Some of the furniture was returned unsold to the would-be seller and no claim was made against the defendant auctioneer in respect of that furniture. But he was held liable for the furniture he sold. Held: Where, as here, the auctioneer receives the goods into his custody, and, on selling them, hands over the goods to the purchasers with a view to passing the property in them, then I think the auctioneer has converted the goods and is liable accordingly. The general rule is that where an agent takes part in transferring the property in a chattel and it turns out that his principal has no title, his ignorance of this fact affords him no protection. Cases of a carrier and packing agent might support the case of the auctioneers. But carrier and packing agents are generally held not to have converted, because by their acts they merely purport to change the position of the goods and not the property in them.

Mullens -v- Miller [1892] 22 Ch D 194
1892	Contract, Agency	Casemap 1 Citers
	Where an agent enters into a contract on behalf of a principal and the opposite party has been induced to enter into it by an innocent misrepresentation by the agent, the opposite party is entitled to rescission provided that the making of a representation of that kind was within the actual or apparent authority of the agent.

Consolidated Co -v- Curtis & Son (1892) 1 QB 495
1892 QBD	Torts - Other, Agency	Casemap 1 Cites
	An auctioneer who sold and delivered goods the subject of a bill of sale. An auctioneer who sells and delivers is liable in conversion because he is acting as more than a mere broker or intermediary. Held: It is not easy to draw the line at the precise point where a dealing with goods by an intermediary becomes a conversion. The difficulty is diminished by remembering that in trover the original possession was by a fiction deemed to be lawful … and some act had therefore to be shown constituting a conversion by the defendant of the chattel to his own use, some act incompatible with a recognition on his part of the continuous right of the true owner to the dominion over it. All acts which are consistent with the duty of a mere finder such as the safeguarding by warehousing or asportation for the like purpose, may well be looked upon as entirely compatible with the right of the true owner, and, therefore, as not constituting a conversion by the defendant. The test may be whether there is an intent to interfere in any manner with the title of or ownership in the chattel, not merely with the possession. The difficulty is rather in drawing the true inference from facts in particular cases than in grasping the principle. There can be no conversion by a mere bargain and sale without a transfer of possession. The act, unless in market overt, is merely void, and does not change the property or the possession: Lancashire Wagon Co. v Fitzhugh A fortiori, mere intervention as broker or intermediary in a sale by others is not a conversion.

Bryant Powis & Bryant -v- La Banque du Peuple [1893] AC 170
1893 PC Lord Macnaghten	Commonwealth, Agency	Casemap 1 Citers
	Powers of Attorney are to be construed strictly.

Pape -v- Westacott [1894] 1 QB 272
1894	Agency	Casemap 1 Citers
	The landlord's agent, in breach of his authority, released a licence to assign a lease taking a cheque (instead of cash) for the outstanding rent due from the existing tenant. This took place in the presence of the assignee, who did not however know of the excess of authority. Held: The court dismissed a suggestion that the landlord could still have distrained against the assignee. The agent had as far as the assignee was concerned been held out as acting with authority, but the agent was liable to the landlord for exceeding his authority.

Re Hampshire Land Company [1896] 2 Ch 743
1896 Vaughan Williams J	Agency	Casemap 1 Citers
	A company had borrowed from a building society. The borrowing was not properly authorised by resolution. The court was asked whether whether the knowledge of the company secretary common to both the company and the society, as to the irregularity should be imputed to the society, so as to preclude the society from recovering the loan. Held: The rule of law that information held by an agent in the course of his agency is to be imputed to his principal, has an exception where the agent is committing a fraud on his principal. Vaughan Williams J said: "The case is very much more like the one which [counsel for the society] had to admit was an exception to the general rule that they sought to lay down, for they admitted that if Wills had been guilty of a fraud, the personal knowledge of Wills of the fraud that had had committed upon the company would not have been knowledge of the society of the facts constituting that fraud; because common sense at once leads one to the conclusion that it would be impossible to infer that the duty, either of giving or receiving notice, will be fulfilled where the common agent is himself guilty of fraud. It seems to me that if you assume here that Mr. Wills was guilty of irregularity – a breach of duty in respect of these transactions – the same inference is to be drawn as if he had been guilty of fraud. I do not know, I am sure, whether he was guilty of actual fraud; but whether his conduct amounted to fraud or to breach of duty, I decline to hold that his knowledge of his own fraud or of his own breach of duty is, under the circumstances, the knowledge of the company."

Gaskell -v- Gosling [1896] 1 QB 669
1896 CA Rigby LJ (dissenting)	Agency	Casemap 1 Citers
	The agency of a receiver for the mortgagor is one where the principal, the mortgagor, has no say in the appointment or identity of the receiver and is not entitled to give any instructions to the receiver or to dismiss the receiver. "For valuable consideration he has committed the management of his property to an attorney whose appointment he cannot interfere with" and "a receiver and manager appointed by a mortgagee under an agreement that he shall be the agent of the mortgagor is in the same position as if appointed by the mortgagor himself, and as if every direction given to him emanated from the mortgagor himself."

Shipway -v- Broadwood [1899] 1 QB 369
1899 Chitty LJ	Agency	Casemap 1 Citers
	Where an agent takes a commission, "the real evil is not the payment of money, but the secrecy attending it"