Page:Harvard Law Review Volume 8.djvu/466

450 4SO HARVARD LAW REVIEW. however, be properly implied only in a case where there is com- munication ^ between the stockbroker and the customer, on the taking of the order, sufficient to warrant the implication. This is often absent, as where an order is sent by mail and the stockbroker, without notifying the customer of his taking the order, at once proceeds to carry it out, and in such a case no such promise can be implied. The effect of such a promise is to add to the duty of acting in good faith and with due care, which springs from the stockbroker's status as agent, a contractual obhgation of the same import. It is to be noticed that neither the stockbroker's duty as agent nor this contractual obligation bind him so that he will incur any liability if he is unable through no carelessness or fault of his own to carry out the order. Such a Hability would be incurred, how- ever, if he should promise to carry out the order, but inasmuch as an order is carried out by the making of one or more contracts, each of which depends on the meeting of the minds of two per- sons, the stockbroker will not except in very rare cases expressly give such a promise, and a promise to this effect can never be im- plied from the ordinary facts surrounding and constituting the " taking" of an order in the regular form.^ " Taking " the order completes the engagement of the stock- broker in the regular way. All there is to this way can now be seen to be the creation of two agencies, one to contract and the other to perform the contract or contracts made to carry out the order, coupled with an offer to pay a commission on the making of the contract or contracts, and an offer to indemnify the stock- broker, which, where the means to perform the contract or con- tracts are not deposited at the time the order is given, gives rise to an offer to supply the securities to be sold or the money to be invested when the contract or contracts is or are made. The " Execution " of the Order. The scope of every authority is measured by the principal's in- tent, and only when the agent acts within this scope does he bind the principal. This is the general rule, and is without exception. For the purposes of this article the intent of a customer in giv- the offeror and offeree as an express contract. 2 Cf. Fletcher z/. Marshall, 15 M. & W. 755; Dos Passos, 120.
 * A contract implied in fact is as dependent on communication of some kind between