The right of lien may be destroyed by the special agreement of the parties; and if the agent enters into•a contract with his employer inconsistent with the exercise of the right (as if he stipulates for a particular mode of payment), he must be understood to waive it.
We have hitherto considered only the case of hired or paid agents, between whom and gratuitous agents there exists nearly the same difference with respect to their relative rights and duties as be tween bailees for hire and gratuitous bailees. (Sir W. Jones, (hi the Law of Bailments.) The responsibility of a gratuitous agent (the mandataries of the Roman law) is much less than that of one who is paid for his services. He will in general incur no liability, provided he acts with good faith, and exercises the same care in the business of his employer as he would in his own. But if he is guilty of gross negligence, or if, having competent skill, he fails to exert it, he will be answerable to his employer for the consequences. Be has of course no right to commission, but he is entitled to be reimbursed for any reasonable pay ments made, or charges incurred in be half of his employer. (As to the Roman mandataries, see Gains, iii. 155-162, iv. 83, 84; Di,. 17. tit. 1.) II. It remains to explain the conse quences of the relation of principal and agent, as between the parties and third persons : and, first, as between the prin cipal and third persons ; and, secondly, as between the agents and third persons.
First, then, as between the principal and third persons : it is a general rule that the act of the agent is to be con sidered as the act of the principal ; it gives the principal the same rights, and imposes on him the same obligations, as if he had done it himself.
A bargain or agreement entered into by an agent is therefore binding upon his principal, whether it tends to his benefit or his disadvantage ; and, in order to have this effect, it is not absolutely necessary that it should actually be within the agent's real authority, either express or implied, provided it be within what may most properly be called his apparent is, provided it is such as the person dealing with the agent might under the circumstances reasonably pre sume to be within his authority.
An authority may be presumed, first, from the principal's having previously authorized or sanctioned dealings of the same nature. Thus, if a person has been in the habit of employing another to do any act,—as, for instance, to draw or in dorse bills,—he will be answerable for any subsequent acts of the same nature,— at least, until it is known, or may rea sonably be presumed, that the authority which he had given has ceased. An authority may likewise be presumed from the conduct of the principal, with re ference to the subject-matter of the trans action in question. For if a person au thorizes another to assume the apparent right of engaging in any transactions, the apparent authority must, as far as regards the rights of third persons. be considered as the real authority. Thus, a broker employed to purchase has no authority to sell ; and if he does, his em ployer may (unless the sale was in open market) reclaim the goods so sold, into whatever hands they may have come. But if the principal has permitted the broker to assume the apparent right of selling the goods, he will be bound by a sale so apparently authorized.
Upon the same principle, when a general agent is employed,—that is, an agent authorized to transact all his em ployer's business of a particular kind, as to buy and sell certain wares, or to nego tiate certain contracts.—he must be pre sumed to have all the authority usually exercised by agents of the same kind in the ordinary course of their employment: and though the principal may have li mited his real authority by express in structions, yet he will not thereby be discharged from obligations incurred in the ordinary course of trade towards persons who have dealt with the agent without any knowledge of such limita tion. Thus where an agent purchases goods on credit, the seller may come on the principal for payment: and this right cannot be affected by any private agree ment between the principal and agent, by which the agent may have stipulatedto be liable to the seller.