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— Part IV.

Formation of the Contract of Agency.

157

to be charged, i.e., the prmcipal, or by his agent thereunto lawfully authorised, whether the authority is given by parol or otherwise {m) and the principal may prove the agency by parol and enforce the Nor is the parol contract against both agent and vendor {ii). appointment of an agent to purchase land invalid on the ground that creations of trust in land must be proved by writing (o), for, in the first place, such an agent is not a trustee unless and until the land has been conveyed to him, but a mere conduit pipe, whose contract and, secondly, since vests the equitable estate in the principal the Court will not allow the Statute of Frauds to be made an instrument of fraud, an agent to whom land, purchased on behalf of his principal, has been conveyed, will not be permitted to plead the statute against the principal, for whom he is a trustee, and who may give parol evidence of the trust {q).

344. Even in cases where the signature of a principal is required by statute, an agent may be appointed by word of mouth or in any other informal manner to sign for him, unless the statute expressly requires the agent, if any, to be authorised by writing (?), or expressly or impliedly requires a personal signature, and so renders an agent incompetent to sign at all (s). Thus an agent informally appointed may sign a memorandum of association (t), or a consent to a dissolution under the Building Societies Act, 1874 (a). Subject, therefore, to the requirements already mentioned, an agent may be appointed by mere word of mouth or by signs, though he may have to execute a written instrument, and even in cases where he is appointed to enter into contracts which are not enforceable unless evidenced by writing (&). Sect.

Agency

4.

Sect.

3.

Informal Appointment.

Agent

to sign

J^^^^.^^^^

of Necessity.

345. Agency of necessity arises wherever a duty is imposed upon Agency of a person to act on behalf of another apart from contract, and in necessity, circumstances of emergency, in order to prevent irreparable injury.

(to)

(n)

Clman Heard

Sch.

v. CooJce (1802), 1

v.

Pilley (1869),

&

Lef. 22



4 Ch. App. 548

29 Car. 2, c. 3, s. 4. Cave v. Mackenzie (1877), 46



L. J. (cH.) 564. (o) Statute of Frauds (29 Car. 2, c. 3), s. 7. (p) Cave V. MacJcenzie, supra. (q) The contrary view was once held [Bartlett v. Pichersgill (1759), 1 Cox, Eq. 15), and was recognised as still law in James v. Smith, [1891] 1 Ch. 384, but must now be taken to be overruled. See Booth v. Turle (1873), L. E. 16 Eq. 182 Davies v. 0%, No. 2 (1865), 35 Beav. 208 Haigh v. Kaije (1872), 7 Ch. App. 469 Willis V. Willis (1740), 2 Atk. 71 and, finally, Rochefoucauld y. Boustead, [1897] 1 Ch. 196, in which James y. Smith [supra) was adversely criticised by the Court of Appeal. (r) E.g., Statute of Frauds (29 Car. 2, c. 3), s. 1. (s) Fricker v. Va7i Qruttem, [1896] 2 Ch. 649. {t) Re Whitleii Partners, Ltd. a886), 32 Ch. D. 337. (a) 37 & 38 Vict. c. 42, s. 32 Dennison v. Jeffs, [1896] 1 Ch. 611. (b) Deverell v. Lord Bolton (1812), 18 Yes. at p. 509; MortlockY. Buller (1804;, 10 Ves. at p. 311 Coles v. Trecothick (1804), 9 Ves. 234 the common law rule, Qui facit per alium facit per se, will not be restricted except where a statute requires personal signature. An instance of the latter is the Statute of Frauds Amendment A.ct, 1828 (Lord Tenterden's Act, 9 Geo. 4, c. 14), s. 6. See Williams v. Mason (1873), 28 L. T. 232.