Dennis v. Ashley's Administrators

Ryland, J., delivered the opinion of the court. The question in this case, as will he seen by the above statement, involves the authority of the agent to bind his principal by a warranty of soundness in the sale of a personal chattel. The instructions refused on the part of the plaintiff, and those given for the defendants in the court below, all rest upon this authority. It is a branch of the law on which many adjudications have been made, and which has also employed the labor and learning of elementary writers. The decisions are not uniform; and distinctions have been taken which are not supported in reason, and are destitute of the force of enlightened authority. However, some general rules may be gathered from the decisions which will be of importance in settling the question so far as it relates to this case. “In all cases an authority is to be construed, and the intention of the principal to be ascertained, in reference to the purpose of the appointment; and a consideration of the object which the agent is directed to accomplish will either expand the powers specified, as means of executing it, or limit the exercise of the most general powers conferred. Accordingly, it is a general maxim, applicable to special and limited agencies, as well as to those which are more comprehensive and discretionary, that in the absence of special instructions to the contrary, and in the absence of such prescription of the manner of doing the act as imples an exclusion of any other manner, an authority or direction to do an act, or accomplish a particular end, implies and carries with it authority to use. the necessary means and inducements, and to execute the usual legal and appropriate measures proper'to perform it,” or as it has been expressed, the “principal authority includes all mediate powers which are necessary to carry it into effect:” Peck and another vs. Harriott and another; 6 Serg. and Rawle 146, 151; 1 American Leading cases, 394. “The amount of this rule is, that a dirction or authority to do a thing is a reasonable implication of the powers necessary to accomplish it, unless there is a special restriction, or unless an intention to the contrary is to be inferred from other parts of the authority,” [457] Upon this principle, it has been decided, that a special agency to sell chattels, or to procure subscribers to a joint stock company relating to lands, implies (unless forbidden) an authority to bind the principal by a warranty or representations respecting the quality or condition of the subject of the contract, such being usual means of accomplishing the proposed end: Sanford vs. Handy, 23 Wend. 260; Nelson vs. Cowing, 6 Hill, 337; and that an authority to sell a slave, includes and implies a power to warrant the slave to be sound: Skinner vs. Gunn, 9 Porter, 305; Gaines vs. McKinley, 1 Judges Alabama Rep. 446. An authority to sell and convey lands, will authorise the execution of deeds with general warranty binding the principal, if there be no restriction in the power: Peters vs. Farnsworth, 15 Vermont 155; Taggert vs. Stanberry, 2 McLean, 543, 549; Vanada’s heirs vs. Hopkins adm’r., 1 J. J. Marshall, 285. These cases are against the authority of Mixon vs. Hyserott, 5 Johns. 58. Where a person is engaged in a particular department ofbusiness and is employed to do an act within his line, with special restrictions, there the general powers, derivable from the nature of his ordinary employment, will control the limitation; he will be held to possess such in the particular instance, as his ordinary occupation fairly imports to the public: Nickson vs. Brohan, 10 Modern 109. A general agency is an implied authority, derived from a course. of dealing or from a number of acts of a particular kind authorised or assented to. Such a general authority authorises the agent to bind the principal without orders, in dealing with those who have no notice of the want of lawful power in the agent, and who act without collusion: See St. John vs. Redmond, 9 Porter 428; Stothard vs. Aull & Morehead, 7 Mo. Rep. 318; Williams et als. vs. Mitchell, 7 Mass., 98. In the case of the Commercial Bank of Lake Erie vs. Norton, 1 Hill 502, the court said: “It is not necessary in order to constitute a general agent, that he should have done before an act the same in specie with that in question. If he have usually done things of the same general character and effect, with the assent of his-principals, that is enough. But beyond the regular course of his business employment, and the general nature of the acts done, the implied power of a general agent will not extend.” Bronson, Justice, in the case of Nelson vs. Corving, 6 Hill 338, said: “But a warranty, and so of a representation, is one of the usual means for effecting a sale of a chattel; and when the owner sells by an agent it may be presumed, in the absence of all proof to the contrary, that the agent has been clothed with all the usual powers for accomplishing the proposed end. [458] Mr. Justice Story, in his treatise on agency, page 126, lays down the general rule which is as applicable to special as well as to general agents, that “where the acts of the agent will bind the principal, there his representations, declarations, and admissions respecting the subject matter, will also bind him, if made at the same time and constitute a part of the res gesta.” “For most purposes a party dealing with an agent, who is acting within the scope of his authority and employment, is to be considered as dealing with the principal himself.” In the. case of Skinner vs. C. & R. Gunn, 9 Alabama 306, Ormond, Justice, said: “The power in this case is to sell and convey the negro in the name of the plaintiff, and the agent must, as an incident of that power, and in the absence of any prohibition, have the right to warrant the soundness of the slave, as that is an usual and ordinary stipulation in such contracts, and must therefore be implied to effectuate the object of the power: Fenn vs. Harrison, 3rd Term Rep. 767; Alexander vs. Gibson, 2 Campbell, 555. Now, by applying the principles here laid down, and they are mainly expressed in the words of adjudicated cases, to the case before us, and it will be plainly seen that the court below erred in refusing the instructions containing the above principles, which were asked for by the plaintiff below — erred also in giving the converse of these instructions to the- jury on the part of the defendants. Here, the intestate, Ashley, in his life time, put a negro woman in the possession of one Curl, who was engaged in the business of buying and selling negroes.' That was his ordinary employment; the negro woman was put there by her owner to be sold for him and on his account. There was nothing said about warranting her soundness or any thing else; no inhibition to warrant — no restriction upon the terms of the sale. The agent, Curl, sold the negro woman to the plaintiff, and warranted her soundness, after trying to sell her without such warranty, and finding that the plaintiff would not purchase without a warrant, of soivndness, he sold her and warranted her tobe sound. This act was one of the usual and ordinary means used in sales of such property — few persons are found willing even to purchase slaves' without such a warrant. In the language of Justice Bronson, “a warranty of soundness is one of the usual means of effecting a sale” of such a species of property. The agent, Curl, therefore, was acting fully within the line of his usual employment in selling and giving a warranty of the slave, as to her soundness in this instance, and his acts are binding on his principal, The judgment below must, therefore, be reversed, and this cause [459] remanded to be proceeded in further, in accordance with this opinion, the other judges concurring.