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way, and that there is no need of any more complex machinery in such a case than where the agent is a mere messenger to express terms settled by his principal in every detail. Suppose that the principal agrees to buy a horse at a price fixed by another. The principal makes the contract, not the referee who settles the price. If the agreement is communicated by messenger, it makes no difference. If the messenger is himself the referee, the case is still the same. But that is the case of an agent with discretionary powers, no matter how large they may be. So far as he expresses his principal's assent to be bound to terms to be fixed by the agent, he is a mere messenger; in fixing the terms he is a stranger to the contract, which stands on the same footing as if it had been made before his personal function began. The agent is simply a voice affording the marks provided by the principal's own expression of what he undertakes. Suppose a wager determined in amount as well as event by the spinning of a teetotum, and to be off if numbers are turned up outside certain limits; is it the contract of the teetotum?
If agency is a proper title of our corpus juris, its peculiarities must be sought in doctrines that go farther than any yet mentioned. Such doctrines are to be found in each of the great departments of the law. In tort, masters are held answerable for conduct on the part of their servants, which they not only have not authorized, but have forbidden. In contract, an undisclosed principal may bind or may be bound to another, who did not know of his very
existence at the time he made the contract. By a few words of ratification a man may make a trespass or a contract his own in which he had no part in fact. The possession of a tangible object may be attributed to him although he never saw it, and may be denied to another who has it under his actual custody or control. The existence of these rules is what makes agency a proper title in the law.
I do not mean to assume in advance that these rules have a common origin because they are clustered round the same subject. It would be possible to suggest separate reasons for each, and going farther still, to argue that each was no more than an application, even though a misapplication, of general principles.
Thus, in torts it is sometimes said that the liability of the master is “in effect for employing a careless servant,” repeating the reason offered by the pseudophilosophy of the Roman jurists for an exceptional rule introduced by the praetor on grounds of public policy. This reason is shown to be unsound by the single fact that no amount of care in selection will exonerate the master;' but still it might be argued that, whether right or wrong, this or some other notion of policy had led to the first of the rules which I selected as a peculiar, and that at most the liability of a master for his servant's torts is only a mistaken conclusion from the general theory of tort.
6 Parke, B., in Sharrod v. London & N. W. Ry. Co., 4 Exch. 580, 585 (1849); 1 Austin, Jurisprudence, Lect. 26, 3d Ed., p. 513. Cf. The Common Law, 15, 16.
7 Dansey v. Richardson, 3 El. & Bl., 144, 161.
Then with regard to undisclosed principals in contract, it might be said that it was no hardship to hold a man bound who had commanded his servant to bind him. And as to the other and more difficult half of the doctrine, the right of an undisclosed principal to sue, it might be observed that it was first asserted in cases of debt, where the principal's goods were the consideration of the liability, and that the notion thus started was afterwards extended to other cases of simple contract. Whether the objection to the analogy and to the whole rule were duly considered or not, it might be urged, there is no connection other than a purely dramatic one between the law of agency in torts and in contracts, or between the fact of agency and the rule, and here, as there, nothing more is to be found than a possibly wrong conclusion from the general postulates of the department of law concerned.
Ratification, again, as admitted by us, the argument would continue, merely shows that the Roman maxim "ratihabitio mandato comparatur” has become imbedded in our law, as it has been from the time of Bracton.
Finally, the theory of possession through servants would be accounted for by the servant's admission of his master's present right to deal with the thing at will, and the absence of any claim or intent to assert a claim on his part, coupled with the presence of such a claim on the part of the master.
8 Scrimshire v. Alderton, 2 Strange, 1182 (H. 16 G. II). Cf. Gurratt v. Cullum (T. 9 Anne, B.R.), stated in Scott v. Surman, Willes, 400, at p. 405 (H. 16 G. II.) and in Buller, N. P. 42.
But the foregoing reasoning is wholly inadequate to justify the various doctrines mentioned, as I have shown in part and as I shall prove in detail hereafter. And assuming the inadequacy to be proved, it cannot but strike one as strange that there should run through all branches of the law a tendency to err in the same direction. If, as soon as the relation of master and servant comes in, we find the limits of liability for, or gain by, others' acts enlarged beyond the scope of the reasons offered or of any general theory, we not only have good ground for treating that relation separately, but we fairly may suspect that it is a cause as well as a concomitant of the observed effects.
Looking at the whole matter analytically it is easy to see that if the law did identify agents with principals, so far as that identification was carried the principal would have the burden and the benefit of his agent's torts, contracts, or possession. So, framing a historical hypothesis, if the starting-point of the modern law is the patria potestas, a little study will show that the fiction of identity is the natural growth from such a germ.
There is an antecedent probability that the patria potestas has exerted an influence at least upon existing rules. I have endeavored to prove elsewhere that the unlimited liability of an owner for the torts of his slave grew out of what had been merely a privilege of buying him off from a surrender to the vengeance of the offended party, in both the early Roman and the early German law. I have shown, ,
also, how the unlimited liability thus established was extended by the praetor in certain cases to the misconduct of free servants. Of course it is unlikely that the doctrines of our two parent systems should have been without effect upon their offspring, the common law.
The Roman law, it is true, developed no such universal doctrines of agency as have been worked out in England. Only innkeepers and shipowners (nautae, caupones, stabularii) were made answerable for the misconduct of their free servants by the praetor's edict. It was not generally possible to acquire rights or to incur obligations through the acts of free persons.
But, so far as rights of property, possession," or contract " could be acquired through others not slaves, the law undoubtedly started from slavery and the patria potestas.
It will be easy to see how this tended toward a fictitious identification of agent with principal, although within the limits to which it confined agency the Roman law had little need and made little use of the fiction. Ulpian says that the act of the family cannot be called the act of the paterfamilias unless it is done by his wish. But as all the family rights
.? and obligations were simply attributes of the persona of the family head, the summary expression for the members of the family as means of loss or gain
9 The Common Law, 9, 15-20. 10 Inst. 2, 9, $ 5; D. 44, 7, II; D. 45, I, 126, § 2. 11 Inst. 2, 9, esp. $$ 4, 5. Cf. D. 41, I, 53. 12 Inst. 3, 17; D. 41, 1, 53; D. 45, 1, 38, § 17. 18 D. 43, 16, I., $$11-13.