Who may appoint and be appointed can only be appointed by those who can themselves enter into contracts, and are without legal disabilities. On the other hand, incapacity to act for himself does not prevent a person being appointed and acting as agent for another. Thus an infant cannot appoint an agent to incur on his behalf a liability which he as a principal could not himself incur ; but an infant can be appointed and act as agent for another.
Appointment of most cases, and as a rule, there is no formality required in the appointment of an agent. The agency may be created verbally ; and where the agency is a part of the ordinary course of the particular business, there may be an absence of express appointment or authority. But in certain cases, form is important in the creation of agency. Thus, if the agent is to contract under seal, e.g. to execute a deed of mortgage or a transfer of shares, the appointment must itself be under seal. Such a formal appointment is called a power of attorney ; a general form of which, capable of being adapted to different circumstances, will be found in a later volume. Unless the intended duties of the agency are confined to certain very ordinary and usual business transactions, an agent for a limited company can be appointed only under seal. There is a necessity for appointment in writing, but not under seal, in those cases relating to leases within the provisions of Sections 1, 2, and 3 of the Statute of Frauds. But even in the cases where, under the Sale of Goods Act [See SALE OF GOODS] the contract itself must be in writing, it is sufficient for the appointment of agency in respect thereof to be verbal. We have now seen that the relationship of principal and agent may be created—(1) By deed ; (2) By writing ; (3) verbally. It now remains to notice that it may be also created (4) by implication arising from conduct. Such a creation of agency arises where the conduct of the alleged principal has been such, in relation to the third parties, as to prevent him denying the agency. Such a result of conduct is called ESTOPPEL.
The following arc illustrations of agency by implication : A servant puhlasing oats for his master's horses, the master having previously paid similar bills. A broker was employed by a merchant to buy hemp ; the
broker did so, and at the merchant's request the hemp was left at the broker's wharf; the broker sold the goods, and the sale was supported on the ground that the broker was the apparent agent, and that the merchant was estopped by his conduct from denying the agency. So too with hus band and wife, though cohabitation does not necessarily imply agency. If the wife is allowed to deal with a tradesman for the ordinary supplies of a household, the husband will be considered to have authorised her as his agent, and to be liable for her purchases. But in an action by the trades man g.gainst the husband for the price thereof, it would be a good defence that he had always allowed her sufficient household money to make the incurring of debts needless. In the relations of partnership this authority by implication is stronger. There another partner would have no like defence in a somewhttt similar action. The only requirement being, that the debt-incurring partner had dealt with the creditor in the ordinary course of business. Agency may also arise as where a husband wrong fully leaves his wife without means of subsistence, or as in the case of a master of a ship. But this authority from necessity does not arise as between parent and child. If one sees a starving child, and gives it food, no action for the price thereof would lie against the parent.
If a contract be entered into at a time when no agency exists, an agency may arise and relate back to the contract by ratification, i.e. by adoption of the contract as made. But ratification is only possible when the circum stances of the case are made up as follows : (1) In making the contract the agent held himself out as acting for, and did act for a contemplated principal ; (2) The principal was existent when the contract was made; (3) The principal was legally capable of making the contract at the date of the ratification ; (4) When ratifying, the principal either had full knowledge of the facts, or can be shown to have adopted the acts whatever they were ; (5) The ratification must not be to part, but to the whole of the contract. When ratified, the ratification is thrown back to the time when the act was done.