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are for this purpose identified." I repeat more distinctly the admission that no fiction is necessary to account for the rule that one who is induced to contract by an agent's fraud may rescind as against the innocent principal. For whether the fraud be imputed to the principal or not, he has only a right to such a contract as has been made, and that contract is a voidable one. But when you go beyond that limit and even outside the domain of contract altogether to make a man answer for any damages caused by his agent's fraud, the law becomes almost inconceivable without the aid of the fiction. But a fiction is not a satisfactory reason for changing men's rights or liabilities, and common-sense has more or less revolted at this point again and has denied the liability. The English cases are collected in Houldsworth. v. City of Glasgow Bank.81

When it was attempted to carry identification one step further still, and to unite the knowledge of the principal with the statement of the agent in order to make the latter's act fraudulent, as in Cornfoot v. Fowke,82 the absurdity became more manifest and dissent more outspoken. As was most accurately said by Baron Wilde in a later case. *3 “The artificial identification of the agent and principal, by bringing the words of the one side with the knowledge of the other, induced the apparent logical consequence of

5 App. Cas. 317. See The Common Law, p. 231. 82 6 M. & W. 358 (1810). It is not necessary to consider whether the case was rightly decided or not, as I am only concerned with this particular ground.

83 Udell v. Atherton, 7 H. & N. 172, 184 (1861).




fraud. On the other hand, the real innocence of both agent and principal repelled the notion of a constructive fraud in either. A discordance of views, varying with the point from which the subject was looked at, was to be expected.” The language of Lord Denman, just quoted, from Fuller v. Wilson, was used with reference to this subject.

The restrictions which common-sense has imposed on the doctrine of undisclosed principal are wellknown. An undisclosed principal may sue on his agent's contract, but his recovery is subject to the state of accounts between the agent and third person." He may be sued, but it is held that the recovery will be subject to the state of accounts between principal and agent, if the principal has paid fairly before the agency was discovered; but it is, perhaps, doubtful whether this rule or the qualification of it is as wise as the former one.

Then as to ratification. It has nothing to do with estoppel,se but the desire to reduce the law to general principles has led some courts to cut it down to that point.? Again, the right to ratify has been limited by considerations of justice to the other party. It has been said that the ratification must take place





84 Rabone v. Williams, 7 T. R. 360 (1785); George v. Clagett, 7 T. R. 359 (1797); Carr v. Hinchcliff, 4 B. & C. 547 (1825); Borries v. Imperial Ottoman Bank, L. R. 9 C. P. 38 (1873); Semenza v. Brinsley, 18 C. B. N. S. 467, 477 (1865); Ex parte Dixon, 4 Ch. D 133.

85 Armstrong v. Stokes, L. R. 7 Q. B. 598, 610; Irvine v. Watson, 5 Q. B. D. 414.

86 See Metcalf v. Williams, 144 Mass. 452, 454, and cases cited.

87 Doughaday v. Crowell, 3 Stockt. (N.J.) 201; Bird v. Brown, 4 Exch. 788, 799.



at a time and under circumstances when the would be principal could have done the act;*and it has been so held in some cases when it was manifestly just that the other party should know whether the act was to be considered the principal's or not, as in the case of an unauthorized notice to quit, which the landlord attempts to ratify after the time of the notice has begun to run.98 But it is held that bringing an action may be subsequently ratified. "

I now take up pleading. It is settled that an assumpsit ® to or by a servant for his master may be laid as an assumpsit to or by the master. But these are cases where the master has commanded the act, and, therefore, as I have shown in the beginning of this discussion, may be laid on one side. The same thing is true of a trespass commanded by the

But when we come to conduct which the master has not commanded, but for which he is responsible, the difficulty becomes greater. It is, nevertheless, settled that in actions on the case the negligence of the servant is properly laid as the negligence of the master, and if the analogy of the substantive law is to be followed, and the fiction of identity is to be carried out to its logical results, the same would be true of all pleading. It is so held with regard to fraud. “The same rule of law which imputes to the

master. 92


88 Bird v. Brown, 4 Exch. 788. 89 Doe v. Goldwin, 2 Q. B. 143. 90 Ancona v. Marks, 7 H. & N. 686. 91 Seignior and Wolmer's Case, Godboldt, 360. 92 Gregory v. Piper, 9 B. & C. 591. 93 Brucker v. Fromont, 6 T. R. 659 (1796).

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principal the fraud of the agent and makes him answerable for the consequences justifies the allegation that the principal himself committed the wrong.

Some American cases have applied the same view to trespass, and have held that this action could be maintained against a master whose servant had committed a trespass for which he was liable although he had not commanded it. But these decisions, although perfectly reasonable, seem to have been due rather to inadvertence than to logic, in the first instance, and the current of authority is the other way. Baron Parke says, “The maxim 'Qui facit per alium, facit per se renders the master liable for all the negligent acts of the servant in the course of his employment, but that liability does not make the direct act of the servant the direct act of the master. Trespass will not lie against him; case will, in effect, for employing a careless servant.' Considered as reasoning, it would be hard to unite more errors in as many words. "Qui facit per alium, facit per se" as an axiom admitted by common-sense goes no farther than to make a man liable for commanded trespasses, and for them trespass lies. It it be extended beyond that point it simply embodies the fiction, and the precise point of the fiction is that the direct act of one is treated as if it were the direct act

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94 Comstock, Ch. J., in Bennett v. Judson, 21 N. Y. 238 (1860); acc. Barwick v. English Joint Stock Bank, L R. 2 Ex. 259 (1867).

95 Andrew v. Howard, 36 Vt. 248 (1863); May v. Bliss, 22 Vt. 477 (1850).

96 Sharrod v. London & N. W. Ry Co., 4 Exch. 580, 585 (1849). Cf. Morley v. Gaisford, 2 H. Bl. 442 (1795).


of another. To avoid this conclusion a false reason

a is given for the liability in general." It is, as has been shown, the fallacy of the Roman jurists, and is disposed of by the decisions that no amount of care in the choice of one's servant will help the master in a suit against him.* But although the reasoning is bad, the language expresses the natural unwillingness of sensible men to sanction an allegation that the defendant directly brought force to bear on the plaintiff, as the proper and formal allegation, when as a matter of fact it was another person who did it by his independent act, and the defendant is only answerable because of a previous contract between himself and the actual wrong-doer." Another circumstance may have helped. Usually the master is not liable for his servant's wilful trespasses, and, therefore, the actions against him stand on the servant's negligence as the alternative ground on which anybody is responsible. There was for a time a con

а. fused idea that when the cause of action was the defendant's negligence, the proper form of action was always case. 100 Of course if this was true it applied equally to the imputed negligence of a servant.“ And thus there was the further possibility of confounding the question of the proper form of action with the

97 The same reason is given in M'Manus v. Crickett, 1 East, 106, 108 (1800). Compare i Harg. Law Tracts, 347; Walcott v. Swampscott, 1 Allen, 101, 103; Lane v. Cotton, 12 Mod. 472, 488, 489.

98 Dansey v. Richardson, 3 El. & Bl. 144, 161.

99 M'Manus v. Crickett, 1 East, 106, 110 (1800); Brucker v. Fromont, 6 T. R. 659 (1796).

100 Ogle v. Barnes, 8 T. R. 188 (1799). Cf. Leame v. Bray, 3 East, 593 (1803).


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