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 — Agency.

180 Sect.



himself became the buyer and subsequently resold at a large profit, it was held that there had been no such acquiescence by the principal Ratification. in the sale as to extinguish the relation of principal and agent which had been created between the principal and sub-agent, and that the principal was entitled to recover from the sub-agent the profit made on the resale (/). Acquiescence is stronger evidence of ratification where the Where agency previously relationship of principal and agent previously existed between the existing parties, and the act to be ratified was rather one in excess of the between agent's authority than one which was totally unauthorised (g) Thus, parties. where a shipmaster who was intrusted with the sale of goods, the proceeds to be devoted to particular purchases, devoted the proceeds to other purchases and advised his employer thereof, it was held that the fact that there was no repudiation by the employer within a reasonable time was evidence that he assented to and ratified the shipmaster's conduct (h). 4.

Manner

of

.

Sect. General effect.

388.

An

contract

Effect of Batification.

effective ratification places all the parties in exactly the

same position as they would have occupied in the case of a precedent agency by formal constitution. Omnis ratihabitio retrotrahitu?' et

In case of

5.

Where

mandato priori ceqidparatur

(i).

agent is relieved from personal liability to his principal for acting in excess of his authority (/i;), and may recover his commission and expenses®. The principal must perform the contract made by the agent in its and the agent is relieved from personal liability to entirety (m) the other contracting party for breach of warranty of authority, the only remedy of such party being against the principal, unless the agent contracted in his own name (n). In the case of a tort the agent remains liable, and the principal a

contract

ratified

is

the



In case of tort.

(/) De Bussche v. Alt (1878), 8 Ch. D. 286; Powell v. JEvan Jones & Co., [190o] 1 K. B. 11 and where the agent of a shipowner contracts for repairs in excess of his authority, the fact that the owner accepts his own ship as repaired and sells it is not acquiescence {Forman & Co. Proprietary, Ltd. v. The Liddesdale, [1900] A. C. 190). {g) Sentancey. Ilawley (1863), 13 C. B. {n. s.)458; Benham v. Batty (1865), 12 L. T. 266; Waithman v. Wakefield (1807), 1 Camp. 120; Lapraik v. Burroius (1859), 13 Moo. P. C. C. 132; Allard v. Bonrne (1863), 15 0. B. (n. s.) 468; Smith Y. Hull aiass Co. (1852), 11 C. B. 897 Pott v. Sevan (1844), 1 C.& 335. (h) Prince v. Clark (1823), 1 B. & C. 186; Sentance v. Hawley, supra (principal found to have acquiesced in a reasonable custom of brokers) FothergiU v. Phillips (1871), 6 Ch. App. 770 (where one tenant in common entered into negotiations for sale, and the other, who allowed them to go on for three years without dissenting; knowing that the mortgagee was threatening to foreclose unless the sale took place, was held too late to allege absence of authority). See also Bigg v. Strong (1857), 3 Sm. & Gr. 592. Maclean v. Dunn (1828), 4 Bmg. 722. (?:) {k) Smith V. Cologan (1788), 2 Term Rep. 188 a; Rishourg v. Bruckner {1868), 3 C. B. (isr. s.) 812, where a foreign principal distinctly ratified; Hartas v. Bibhons (1889), 22 Q. B. D. 254 Clarke v. Perrier (1679), 2 Freem. 48. (Z) Keay y. Fenwick (1876), 1 C. P. D. 745; Masony. Clifton (1863), 3 P. &F. 899; Cornwdly. Wilson (1750), 1 Yes. Sen. 509; Frixioney. Tagliaferro (1856), 10 Moo. P. C. C. 175; Gleadow y. Hull Glass Co. (1850), 19 L. J. (CH.) 44 (directors of a company entitled to indemnity). (m) Bristoiv v. Whitmore (1861), 9 H. L. Cas. 391. [n) Spittle y. Lavender (1821), 2 Brod. & Bing. 452.





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