Page:Harvard Law Review Volume 9.djvu/544

516 5l6 HARVARD LAW REVIEW. the second place, it will not be disputed that whatever the princi- pal tells the third person his agent may do will, when done, be just as valid an act of the principal as the other. In this last case there may, or may not, be a technical estoppel ; but the responsi- bility of the principal for his agent's acts is, under these circum- stances, quite independent of that doctrine. It rests on precisely the same ground as that upon which is founded the doctrine of mutual assent in contracts generally. If an offeree says " Yes " to an offer, he thereby creates a valid legal obligation, and that too without reference to any action by the offeror in reliance upon his assent. It is quite common to call an authority of this kind, based upon representations made by the principal, an " apparent author- ity." The phrase is unfortunate. It seems to imply some defect of legal validity, when in truth there is none, since the principal is quite as unable to avoid the consequences of acts authorized after this fashion as he is to avoid the consequences of acts authorized in any other. In every case of dealings with third persons through an agent these two elements will be found : the instructions to the agent, and the representations to the third person; and in hardly any case will these two be precisely identical.^ It may sometimes suit the principal's purpose to endow the agent with larger powers of action than are made known to the third person. Thus, for example, the principal, when he is a purchaser, will perhaps author- ize the agent to offer a higher price than he is willing to make known to the seller. On the other hand, it may sometimes be the case that the principal will inform the third person that the agent may do such and such things, which to the agent he says he may not do. Obviously in this case the principal must abide by his statements to the third person. An illustration of this difference between the instructions to the 1 I use the words " representations " and " instructions *' in their largest sense, which includes representation and instruction by conduct as well as by words. It is to be noted in the case of representations that they need not come to the third party directly from the principal. They may come indirectly through the agent. For example, the principal may never see the third person ; but if he authorizes the agent to state the scope of the granted powers, he will be bound by such a statement. It not infrequently happens that a statement so authorized may imply a larger power than that contained in the immediate instructions to the agent, in which case the principal will be bound by the statement rather than by the instructions. The principal has in fact empowered his agent to do two things, — to do certain acts, and to make representations as to the authority conferred.