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§ 289. Negligent acts of agent. In the law of torts the rule qui facit per alium facit per se, applies, and as to all injuries resulting from the negligence of the agent's authorized acts, the principal is responsible. An injury to an employee, from the negligent blasting of a superior servant, would render the principal liable, so would the principal, generally, be liable for any injury done within the general scope of the agent's duties, although the particular act was not directly authorized, or even against instructions. But as to acts not done by the authority of the principal and not within the apparent scope of the agent's employment, the negligent act would be the individual tort of the agent, and redress would have to be sought against him alone.1

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§ 290. Fiduciary relation Secret profit. Where a party is acting as the agent of another, on account of the fiduciary relation existing, the law requires the fullest dis

1 Cooley Torts, 136, 142.

2 Spelman v. Fisher Iron Co., 56 Barb. (N. Y.) 151.

3 Evansville &c. Co. v. Nickee, 99 Ind. 138. "In an action against the owners of a mine to recover damages for an injury sustained by an employee, if the complaint avers that the injury was caused by the negli gence and want of skill of the engineer, and that the superintendent had full power to control the working of the mine, and employed and discharged all the workmen at his discretion, it must also allege that the defendants were negligent in employing the superintendent, or it does not state a cause of action." Collier v. Steinhart, 51 Cal. 116; M. M. D.

62.

4 Cooley on Torts, p. 139. "A court of chancery cannot charge an agent who has committed a trespass in taking coal, although conscious of its being a wrong, with the proceeds of such trespass as compensation when his principal and not himself received such proceeds." Powell v. Aiken, 4 Kay & J. 343; M. M. D. 11. "Compensation is not to be required of an agent of a mining company which has tortiously taken ore beyond its boundary, although it was his duty to prevent such acts." Stockbridge Iron Co. v. Cone Iron Works, 102 Mass. 80; M. M. D. 11.

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closures to the principal. Agents, whether acting for individual copartners or corporations, are not permitted to make secret profit out of their principals, but are held to a strict account of all profits so realized. An outstanding title to the principal's land, purchased by an agent, is held by him in trust for the principal; a lease obtained for the principal will be so held by the agent; 5. all commissions made from sales of the principal's property must be accounted for; an agent to sell cannot himself purchase the principal's property at a bargain;7 nor could he purchase for a third party; and any clandestine partnership by which a profit was realized, at the expense of the principal, would have to be accounted for."9 But where the agency had terminated before the contract was entered into,1o or a full disclosure had been made,11 the agent would not be held to an account but would be permitted to claim the profits realized.

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§ 291. Same Sale may be avoided.—On the discovery of a contract whereby one has conspired to purchase the principal's property from the agent at a profit to the

1 Norris v. Taylor, 49 Ill. 18; Bispham's Pr. Eq. 238, 239.

2 Simmons v. Vulcan Oil Co., 61 Pa. St. 202.

3 Beaumont v. Boultbee, 5 Ves. Jr. 485; s. c. 7 Id. 599; 11 Id. 358.

4 Hardenberg v. Bacon, 33 Cal. 356.

Taylor v. Salmon, 4 My. & Cr. 134.

6 Collins v. Case, 23 Wis. 231. But it has been held: "Where plaintiff found gold while working for defendants in excavating a mill site on public land, defendants have no claims to the gold under Civil Code, § 1985." Burns v. Clark (Cal.), 66 Pac. Rep. 12. One who obtains a patent for mines upon the public land for himself and others, is held a trustee for the others. Mullins v. Butte Co. (Mont.), 65 Pac. Rep. 1004. Cumberland Coal Co. v. Shermen, 30 Barb. 553.

8 Cumberland Coal Co. v. Sherman, supra.

9 Massey v. Davies, 2 Ves. Jr. 317.

10 Van Dusen v. Star Min. Co., 36 Cal. 571.

11 Bispham's Pr. Eq, Secs. 238-239.

latter, the principal can avoid the sale,1 or affirm it and recover the profit at his election.2

§ 292. Agent cannot delegate authority. If the acts of the agent require the exercise of a personal discretion and judgment, he cannot delegate his authority unless he is authorized to do so. But merely ministerial acts, which do not require the exercise of a personal discretion in the agent, can be performed by a sub-agent without any power to delegate authority, and while this would not authorize a subordinate officer or agent of a corporation to appoint an attorney to attend to business of the company, if one is appointed by the agent, and the corporation does not disaffirm the act of its agent, his appointment would be valid."

1 Cumberland Coal Co. v. Sherman, 30 Barb. 553.

2 Beaumont v. Boultbee, 5 Ves. Jr. 485. "In an action by the purchaser of mining stock against the seller, on the ground that the stock was worthless and the sale induced by the fraudulent representations of the seller, one who had acted as plaintiff's agent in the purchase testified that, after she learned the truth as to the stock, she had a conversation with defendant: Held, that it was proper to permit the witness to be asked whether she relied on defendant's representations; the plaintiff having dealt solely through the agent, and having had no knowledge of the situation." Geraghty v. Randall (Colo. App. 1902), 70 Fac. Rep. 767. 3 Coles v. Trecothick, 9 Ves. 274; Brewster v. Hobart, 15 Pick. 302; Emerson v. Prov. Mfg. Co., 12 Mass. 237; Warner v. Martin, 11 How. (U. S.) 309; Hunt v. Douglass, 22 Vt. 128; Grady v. Am. &c. Co., 60 Mo. 116; Renwick v. Bancroft, 56 Iowa, 527. But the agent's power to delegate his authority may be implied from the nature of the business. Krumn v. Jefferson &c. Ins. Co., 40 Ohio St. 225; 75 N. C. 534.

Lord v. Hall, 8 C. B. 627; Gainwell v. Buchanan, 1 Daly, 538; Newell v. Smith, 49 Vt. 255; Eldridge v. Holway, 18 Ill. 445.

5 Hillyer v. Overman Sil. Min. Co., 6 Nev. 51. But "when an attorney proposes to do the legal business of a mining company for a certain period for a certain rate per month, the mere fact that his bills at that rate for several months had been allowed and paid, though sufficient to raise a presumption of the acceptance of his proposition, would not overbear direct evidence that the proposition was not submitted to or acted upon by the company, and consequently never accepted." Hillyer v. Overman S. M. Co., 6 Nev. 51; M. M. D. 19.

§ 293. Revocation of authority. Unless the agent's authority is coupled with an interest, the principal can revoke his power at any time, even though the agency is expressly declared to be irrevocable. But when a general authority is given an agent and is unlimited in point of time, then the authority will ordinarily continue until it is revoked. And the death or subsequent insanity of either party will, of itself, work a revocation of the agent's authority, but where the insanity is very slight, or unknown to persons dealing with the agent, the principal would not be justified in revoking his authority, unless the agent was really incapacitated from discharging his duties connected with the employment or transaction for which he was engaged, and so the agency would generally be held to continue if the agent himself had an interest in the subjectmatter of the agency and the accomplishment of his undertaking, other than as a mere agent, for in such case his interest would not be made to depend on the arbitrary will of the principal.5

§ 294. Agents of corporations. Before a company is formed those engaged in forming it are not partners and are not each other's agents for doing that which may be necessary to form the company, and in order that a person engaged with others in forming a company may be held

1 McGregor v. Gardner, 14 Iowa, 326; Blackstone v. Buttermore, 3 Smith (Pa.), 266; Phillips v. Howell, 60 Ga. 411; Trumbull v. Nicholsen, 27 Ill. 149.

2 Ante, idem. Tiedeman Com. Paper, § 80, p. 142.

3 Boone v. Clark, Cranch C. C. 389; Gale v. Toppan, 12 N. H. 145; Scruggs v. Driver, 31 Ala. 274; Lehigh Coal Co. v. Mohr, 2 Morris (Pa.),

228.

4 Hill v Day, 7 Stew. Ch. 150; Drew v. Nurser, 4 Q. B. D. 661; Lehigh Coal &c. Co. v. Mohr, 2 Norris (Pa.), 228.

5 Haggert v. Ranger, 15 Fed. Rep. 860; Hill v. Day, 7 Stew. Ch. 150. But even though the agent has an interest in the subject-matter of the

liable for their acts, he must have authorized them to do those acts as his agent or ratified the same subsequent to their commission. Promoters of companies and members of provisional committees are not prima facie each other's agents, and in order to render any member liable for the acts of the others, the person who asserts that such liability exists must prove the existence of an authority emanating from the member in question to the others to bind him. And authority is not presumed from the mere announcement and advertisement that the several persons sought to be charged are acting together for the purpose of forming a company. But after the company is formed and the transaction of its business is intrusted to directors and managers appointed by the members of the company, they constitute such members the agents of the company, and are responsible for their acts within the usual scope of the corporate business."

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§ 295. Company not bound by acts of its members. A joint-stock company or corporation is not, like an ordi

agency, if the power could only be exercised in the name of the principal, the latter's death would terminate the agency, for, as observed by Lord Ellenborough, a valid act could not be done in the name of a dead man. Watson v. Kirck, 4 Camp. 272-274; Clayton v. Merritt, 52 Mass. 353.

1 Beach on Pri. Cor., § 160, p. 289; Bailey v. Macauley, 15 Q. B. 533; Reynell v. Lewis, 15 Mees. & W. 517; Wilson v Curzon, 15 Mees. & W. 532; s. c. 5 Am. & Eng. Ry. Cas. 24; Alger Prom. Cor., Ch. 1.

2 Patrick v. Reynolds, 1 C. B. (N. 8.) 727; Beach on Pri. Cor., § 160, p. 290; Burbridge v. Morris, 3 Hurl. &c., 664; Williams v. Piggott, 2 Ex. 201; Dawson v. Morrison, 5 Am. & Eng. Ry. Cas. 62.

3 Beale v. Mauls, 10 Q. B. 976; Ex parte Peele, 6 Ves. 602. But how far the members may have ratified the acts of the promoters, so as to render them liable, is a question of fact for the jury. Beach, § 160.

4 Beach on Cor., § 161; 159; Hurt v. Salisbury, 55 Mo. 110. And the promoters would themselves be liable on contracts entered into by them