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Agency - 1849- 1899

Law relating to Agency, Powers of Attorney, Enduring Powers of Attorney etc.

These cases are extracted from a very large database. The entries on that database are now being published individually to the main swarb.co.uk website in a much improved form. As cases are published here, the entry here will be replaced by a link to the same case in that improved form on swarb.co.uk. In addition the swarb.co.uk site includes very substantial numbers of cases after 2000. Please take the time to look.  

This page lists 40 cases, and was prepared on 20 October 2013. These case are being transferred one by one to the main swarb.co.uk site which presents them better, with links to full text where we have it, and much improved cross referencing.
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
Lady Beresford -v- Driver; 31-Jul-1851
Lady Beresford -v- Driver [1852] EngR 650 (A); (1852) 16 Beav 134
1 Jun 1852

Agency
[ Commonlii ]
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.
[ Commonlii ]
Holland -v- Russell; 13-Jun-1861
Holland -v- Russell; 09-May-1863
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."
Link[s] omitted
Jones -v- Phipps [1868] LR 2 QB 567
1868
QBD
Landlord and Tenant, Agency

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
1 Citers
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.
[ Commonlii ]
Hamilton -v- Dixon 1873 1R 72
1873

Lord Justice Clerk Moncrieff
Agency Casemap

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; CA 1874
Great Northern Railway Co -v- Swaffield; 1874
Panama & South Pacific Telegraph Co -v- India Rubber, Gutta Percha, and Telegraph Co [1875] 9 Ch App 515
1875

Agency

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.
Hollins -v- Fowler (1875) LR 7 HL 757
1875
HL
Blackburn J, Brett J
Torts - Other, Agency Casemap

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."
National Mercantile Bank Ltd -v- Rymill [1881] 44 LTNS 767
1881
CA
Bramwell LJ, Brett and Cotton LJJ
Agency, Torts - Other

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

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.
Re Lewis ex parte Helder; CA 1883
West London Commercial Bank -v- Kitson [1883] 12 QBD 157
1883

Agency
1 Citers
Re Chapman ex parte Edwards; CA 1884
Blackburn, Low & Co -v- Vigors (1886) 17 QBD 553
1886
CA
Lord Esher MR, Lindley LJ,
Agency, Insurance, Torts - Other Casemap

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.
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; HL 1887
Toulmin -v- Millar (1887) 58 LT 96
1887
HL
Lord Watson
Agency

Boston Deep Sea Fishing & Ice Co -v- Ansell (1888) 39 ChD 339
1888
CA
Bowen LJ, Cotton LJ, Fry LJ
Agency, Employment

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
1 Cites

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
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


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

Powers of Attorney are to be construed strictly.
Ultzen -v- Nicols; 1894
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.
Gaskell -v- Gosling; CA 1896
Re Hampshire Land Company; 1896
Shipway -v- Broadwood [1899] 1 QB 369
1899

Chitty LJ
Agency

Where an agent takes a commission, "the real evil is not the payment of money, but the secrecy attending it"

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