A principal is liable for the statements and representations

* * * * *

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| Transcriber's Note: |

| |

| Inconsistent hyphenation in the original document has |

| been preserved. Bolded text is represented =like so=. |

| |

| Obvious typographical errors have been corrected. For |

| a complete list, please see the end of this document. |

| |

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* * * * *

BY ALBERT SIDNEY BOLLES,

PH.D., LL.D.

THE MODERN LAW OF BANKING

BANKS AND THEIR DEPOSITORS

BANK OFFICERS

BANK COLLECTIONS

THE NATIONAL BANK ACT AND ITS JUDICIAL INTERPRETATION

Putnam's Handy Law Book

for the Layman

Putnam's

Handy Law Book

for the Layman

By

Albert Sidney Bolles, Ph.D., LL.D.

Formerly Professor of Commercial Law and Banking in the

University of Pennsylvania, also Lecturer on the

Same Subjects in Haverford College

G.P. Putnam's Sons

New York and London

The Knickerbocker Press

Copyright, 1921

by

Albert Sidney Bolles

Published September, 1921

Reprinted December, 1921

" March, July, 1922

" April, 1923

[Illustration]

Made in the United States of America

FOREWORD

What useful purpose can this book serve? Most of the laws under which

we live are kept, not from knowing them, but because the good sense of

individuals leads them along legal ways. Yet in many cases their good

sense fails to discover the right way. Thus, the receiver of a check

on a bank must present it within a reasonable time after receiving it,

and if he keeps it longer the risk of loss, should the bank fail, is

his own. What is this reasonable time? One man says three days,

another a week, another a month. So one's common sense fails to

establish a definite reasonable time. It is needful to have the time

fixed, and the law therefore has established a reasonable time. There

are many cases like this in which one's common sense fails to furnish

a correct, yet needful guide.

This little book contains many of the legal principles that are in

most frequent use, as readers will learn who carefully read it. Again,

if they do not always find an answer to their questions, it is

believed that in many cases they will find enough law of a general

nature from which they can safely solve their questions. They are

therefore besought to do something more than merely consult this book

for the purpose of finding ready and complete answers to their

questions, to read it and become familiar with its contents.

Besides the law presented here the reader should learn to be cautious,

and not trust too much his own judgment when no rule can be found for

his guidance. Many a person has written his own will, as he has a

right to do, and after giving a legacy to a relative or friend has

nullified the gift by having the legatee, through the testator's

ignorance, sign as a witness. The writer knew a railway president who

had the temerity to draw the writing containing an important contract

between his railroad and another, and who, by unintentionally putting

a comma in the wrong place, made his road instead of the other

responsible for large losses. If this book shall make the reader

cautious concerning the legality of his undertakings, it will be worth

to him many times its price.

A.S.B.

CONTENTS

PAGE

EXPLANATION OF TERMS 1

ADOPTED CHILD 5

AGENCY 6

AGREEMENT TO PURCHASE LAND 15

AUCTIONEER 16

AUTOMOBILE 19

BAILOR AND BAILEE 26

BANKRUPTCY 31

BENEFICIAL ASSOCIATIONS 38

BROKER 45

CARRIER 48

CHATTEL MORTGAGE 52

CHAUFFEUR 57

CHECK 58

CITIZEN 62

CONTRACTS 64

CORPORATIONS 72

CURTESY 101

DECEIT 102

DEEDS 104

DIVISIONAL TREE 113

DOWER 113

DRUNKENNESS 116

EQUITABLE REMEDIES 118

FACTOR 123

FIRE INSURANCE 124

FIXTURES 132

GARAGE KEEPER 133

HOMESTEAD 135

HUSBAND AND WIFE 137

INNKEEPER 147

LAND LICENSE 149

LEASE 151

LEGAL REMEDIES 164

LIFE INSURANCE 167

MINOR 176

MORTGAGE 177

NEGOTIABLE PAPER 183

PARENT AND CHILD 197

PARTNERSHIP 198

PATENT 202

PAYMENT 211

PRESCRIPTIVE RIGHTS 214

QUASI CONTRACTS 218

SALE 227

SHIPPING 235

STATUTE OF FRAUDS 242

STATUTES OF LIMITATION 243

TELEGRAPH AND TELEPHONE 246

TORTS OR WRONGS 248

WARRANTY 260

WILL 262

WORKMEN'S COMPENSATION ACTS 266

LEGAL FORMS FOR EVERYDAY USE 277

INDEX 321

Putnam's Handy Law Book for the Layman

=Explanation of Terms.=--At the outset the explanation of a few terms,

often used, may be helpful to the reader. Among these are the terms

statute and common law. Statute law or statutes mean the laws enacted

by the state legislature and by the federal congress. Common law means

the decisions made by the state and federal courts. These decisions

may relate to the interpretation and application of statutes, or to

the application of former decisions or precedents, or to the

qualification and application of them, or to the making and

application of new rules or principles where none exist that are

needed to decide the case in hand.

It is a rule of the most general application that legal decisions are

precedents which are to be followed in other cases of the same

character. The decisions of the highest court in each state must be

followed by the lower courts, but no courts in any state are obliged

to follow the decisions of the courts in any other state. The courts

in every state must also follow the decisions of the federal courts in

all matters of a national character. Thus if a federal court decides

the meaning or interpretation of a federal statute, a state court must

follow the interpretation in a case requiring the application of that

statute.

Again, common law decisions are not binding on the courts that make

them like statutes or legislative commands. A decision may be modified

or set aside when it is regarded as no longer applicable to the

present condition of things. It may also be set aside or changed by

legislative action. The common law is therefore always slowly changing

like the ocean and is never at rest.

The common law forms much the largest part of the great body of law

under which we live. This book is a collection chiefly of common law

principles; a few statutes are interwoven here and there to complete

the subjects presented.

The distinction also between civil and criminal law requires

explanation. Nearly all criminal law is founded on statutes, in other

words the statutes, state and federal, define nearly all legal crimes

known to society. It is therefore true that the field of crime is not

fixed, is in truth always changing. Thus formerly if a man bought

goods on credit of another on the statement that he was worth fifty

thousand dollars and the seller afterward learned that he was not

worth fifty cents, the seller could sue the buyer to recover the value

of the goods and for any additional loss, but could do no more. Many,

perhaps all the states, now declare by statute that such an act is a

crime, and the offender can be prosecuted by the state and fined or

imprisoned or both. And the wrongdoer may still be sued in a civil

action for the loss to the seller as before.

All crimes are prosecuted by the officers of the state chosen or

appointed for that purpose. Again, as in the case mentioned, the

wrongful act has a double aspect. An individual who has been wronged

may proceed against the wrongdoer to recover his loss; the state also

has been wronged and may also proceed against him. A good illustration

is a bank defaulter. The bank may proceed through a court of law to

recover the money lost by him, or from those who have promised to make

the bank good should he wrongfully take anything; the state may also

proceed against him as a criminal for breaking a statute that forbids

him from doing such a thing. Furthermore, should the bank, as often

happens, agree to accept a sum from the defaulter and not trouble him

further, the agreement would be no bar to an action by the state

against him.

The terms law and equity are frequently used in the law books and

require explanation. Formerly there was no such term as equity in the

common law. It came to be used as a supplement to the law to indicate

ways of doing things unknown to the law, which ought to be done. Thus

if a man threatened to fill up your well because it stood, as he

claimed, on his land, you had no preventive remedy at law. You could

use some force to prevent him, you could not kill him, or put out his

eyes, or treat him roughly. The law only gave you the right to proceed

against him to recover money damages for the legal injury. A court of

equity has a preventive remedy. If one threatens to fill up your well

you can petition or pray the court to order that he shall refrain

until there has been a legal hearing to determine whether he has any

right to do so and the court will order him to desist until it has

heard the case, and will enforce its order with a fine or penalty

should he disobey.

The term equity contains a larger element of justice than law; and the

courts often say that an act is just or equitable, meaning that an act

which is just or equitable may not always be a legal act. Equity

therefore is a broader term, and is in constant use in legal

proceedings.

Another word frequently used in this book is action. When a person has

wronged another, for example, has not paid a promissory note that is

due, and the wronged party wishes to collect it through the courts, he

brings an action, so called, against the wrongdoer for that purpose.

Sometimes the word suit is used. Suit, or case in court, is a common

expression.

Finally something should be said about courts of law. Every state has

three kinds or classes of courts. First a court in which suits are

brought and tried relating to small matters, the recovery of money,

for example, for one or two hundred dollars or less, also for small

petty criminal offenses. Next is a higher court in which suits for all

larger matters are begun and tried, as well as appeals from the lower

court. Lastly is a third court of review, usually called the supreme

court, composed in most of the states of five, or more often, seven

judges, who review the decisions of the court below whenever

application is made founded on erroneous matters, the wrongful

admission of, or refusal to admit, evidence and the like, and their

decisions form the great body of the common law.

The federal government also has three courts corresponding somewhat to

the courts established by the states. First is a court existing in

every state called the district court, while some states, like New

York, are divided into several districts. An appeal lies from its

decision to the court of appeals consisting of three judges. There are

nine of these courts, one for each circuit into which the United

States is divided. Lastly appeals may be taken from their decisions

and also from the decisions of the supreme courts of the states to the

supreme court of the United States consisting of nine judges. An

appeal does not lie in every case decided by a state court or by the

federal courts of appeal; only such cases as the highest court shall

decide after application, made in proper form, may be appealed and

heard by that tribunal.

We have already explained the term equity. Formerly there were courts

to try and decide equity cases. England still maintains such courts

and a few exist in the United States; New Jersey and Delaware are two

of these states. The chief official of the court is called a

chancellor, the others vice chancellors. Instead of an action, as in a

court of law, the preliminary proceeding is called a petition or bill,

and while in substance it is similar to an action or complaint, used

in a court of law, the form is quite different. The modern tendency of

the law, considered in the most general way, is to fuse law and

equity, and to endow law judges with equity powers. For further

explanation see _Legal Remedies and Equitable Remedies_.

=Adopted Child.=--Children are sometimes adopted. By doing so the

natural parents lose all personal rights and are relieved from all

legal duties. The adopted parents acquire the right to the adopted

child's custody and control, to his services and earnings, and they

must maintain and educate him. In some states he becomes the heir of

the adopted parent like a natural child, with some limitations. Who

can inherit an adopted child's property is not clearly settled. He can

also inherit from his natural parent and kindred as if he had not been

adopted. In Massachusetts the courts hold that an adopted child will

take like a natural child under a residuary clause in an adopted

father's will giving all the property not otherwise devised to his

child or children. See _Parent and Child_.

=Agency.=--Much of the business of our day is done by agents or

persons who represent others. The most general division is into

general and special agents. A general agent is one who has authority

to act for his principal or person he represents in all matters, quite

as the principal himself could do; or in some of his matters. Thus if

a principal had a farm he might have a general agent to act as his

farmer; if he owned a mill, another general agent who had charge of

it. If he had two mills, he might have a general agent for each, and

so on.

A special agent is authorized to do a specific thing, to sell a home,

buy a horse, or effect some particular end or purpose. While this

distinction is plain enough in many cases, in others the lines run so

close together that it is difficult to decide whether one is a general

or special agent.

Whenever one acts as a general agent he is supposed to have all the

authority that general agents possess who thus act for their

principals, unless the person who is dealing with him knows of the

restriction on his authority. Suppose one goes to the office of a

general insurance agent to get insurance on his home. A policy is

taken and afterwards the house burns up. The company declines to pay

because the agent made a lower rate than was authorized by his

company. The insured however knew nothing about the restriction, and

supposed that the agent had the same authority as other insurance

agents have concerning rates. The company would be obliged to pay. But

if the insured knew that restrictions had been put on the agent and

that he was violating them in giving him the lower rate, the company

would not be liable.

One who deals with a special agent must find out what authority he

possesses; therefore more care is needful in dealing with a special

than with a general agent. His authority must be strictly pursued.

Thus it is said that a person dealing with him "acts at his own

peril," is "put upon inquiry," "is chargeable with notice of the

extent of his authority," "it is his duty to ascertain," "he is bound

to inquire," "and if he does not he must suffer the consequences."

In some cases the law creates an agency. Thus an unpaid vendor of

goods sometimes has authority to sell them, so has a pledgee of goods

outside the authority conferred by the contract pledging them. A

married woman whose husband does not supply her has a limited power to

buy necessaries on her husband's credit, which prevails

notwithstanding any objection he may make. A minor sometimes has the

same power.

A person can act as an agent for another who cannot act for himself.

Minors therefore can thus act. Besides individuals, corporations often

act for others.

The authority of an agent may be given in writing, a power of attorney

so called, or he may act, and often does, without written authority,

especially a general agent. To this rule there is one well understood

exception. If an agent is required in executing his authority to sign

a deed or other writing, especially a sealed writing, his authority

must also be equally great. In executing a deed therefore his

authority must be in writing under seal, and when the deed is

recorded, the agent's written authority should also be recorded; this

is the usual practice. If this is not done, some person who afterward

wished to purchase the land might object because the recorded title

was defective.

A particular usage or custom also affects an agent's powers. If the

principal confers on him authority to transact business of a

well-defined nature, bounded by well-defined usage and customs, the

law presumes the agency was created with reference to them. This

protection affects agents and third persons alike, the latter

therefore who act in good faith in such dealings are protected against

secret limitations of which they had no notice.

An agent has no authority to purchase his principal's property. To do

this, in a sense, would be to purchase of himself. The temptation to

do this is sometimes very great, too great for him to withstand, and

so he resorts to a crooked method for accomplishing his end. He sells

the property to another party who afterward sells it back to him. The

worst violators of this principle have been railway receivers, who

have taken advantage of their position to get control of the property

entrusted to them at a sum much less than its real value. Such sales

can be set aside by proper legal procedure. By the modern rule they

are not void but are voidable, that is, can be set aside if the

creditors or other interested parties wish to do so.

Whenever therefore one deals with a general agent and his authority is

disputed, unless there be restrictions known to the person dealing

with him, the liability of his principal turns on the answer to the

general question, what authority do general agents like himself have.

This is simply a question of fact, to be determined like every other

question of fact by the court in which the controversy is pending.

Another way of rendering a principal liable for the act of his agent

is by ratifying it. Suppose A professed to be the agent of B in

building a house for C, and built it so badly that C sued B to recover

damages, whose defense was, that A was not his agent. Suppose,

however, that B accepted payment for the house, this would be a

ratification of A's authority to act for B even if he did not have

proper authority in the beginning. Suppose A had authority to sell

goods for B but not to collect payment, and someone should pay him and

he ran off with the money, could his principal still collect the money

of the buyer of the goods? This is a hard case, and has happened many

times. The buyer usually is required to pay the second time. But if B,

notwithstanding his direction to his agent not to collect payment,

should receive it such conduct would operate as a ratification.

Whether the authorized act arises from a contract or from a wrong or

tort, whoever with knowledge of all the facts adopts it as his own, or

knowingly appropriates the benefits, which another has assumed to do

in his behalf, will be deemed to have assumed responsibility for the

act. Of course, such action does not render an act valid that was

invalid before; its character in this respect is not changed by

anything the ratifier may do.

Can a forgery be ratified? The right of the state to pursue the forger

cannot be defeated by its ratification, but so far as the act may be

regarded merely as the act of an unauthorized agent, it may be

ratified like any other. Mechem says that if at the time of signing,

the person doing so purported to act as agent, the act might be

ratified.

Again, a principal cannot accept part of an agent's act and reject the

remainder. The acceptance or rejection must be complete.

In appointing an agent the principal has in mind the qualifications of

the person appointed, he cannot therefore without his principal's

consent, designate or substitute another person for himself. This rule

though does not prevent him from employing other persons for a minor

service. Indeed, in many cases a general agency requires the

employment of many persons to execute the business. How far one may go

in thus employing others to execute the details, and how much ought to

be done by the general agent himself, depends on the nature of the

business. The inquiry would be one of fact, to what extent is a

general agent in his particular business expected or assumed to do the

things himself.

One rule to guide an agent is this: when the act to be done is purely

mechanical or ministerial, requiring no direction or personal skill,

an agent may appoint a subagent. Thus an agent who is appointed to

execute a promissory note, or to sign a subscription agreement, or to

execute a deed, may appoint another to do these things. Likewise an

agent who is authorized to sell real estate with discretionary power

to fix the price and other terms, may employ a subagent to look up a

purchaser, or to show the land to one who is desirous of purchasing.

When a person is really acting as an agent, but this is not known by

the persons with whom he is doing business, he is liable to them as if

he were the principal. It often happens for various reasons that

agents do not disclose their principals. Suppose a dealer finds out

that the agent presumably acting for himself was, in truth, acting

for another, could the real principal be held responsible and the

agent escape, or could both be held? The answer is, after discovering

the real principal, both can be held, or either of them. The failure

of an agent to disclose his agency will not make him individually

liable if the other party knew that he was dealing with a principal

with whom he had had dealings through the agent's predecessor. Notice

of the agency to one member of a firm is not sufficient notice to the

firm to release the agent from personal responsibility in subsequent

transactions with another member who did not know and was not informed

of the agency. Again, the liability must be determined by the

conditions existing at the time of the contract, his subsequent

disclosure will not relieve the agent. Finally, while the agent may be

held in such a case, the principal also is liable, except on

instruments negotiable and under seal, on the discovery of his

relationship as principal.

While secret instructions to an agent that are unknown to persons

dealing with him do not bind them, the principal is liable for any

acts within the scope of his agent's authority connected with the

business conducted by his agent for him. Some very difficult questions

arise in applying this rule. A car conductor is instructed to treat

passengers civilly and to use no harsh means with them, save in

extreme cases. How far may a conductor go with a disorderly passenger?

Very likely he would be justified in putting him off; suppose the

conductor was angry and administered hard and needless kicks in the

operation? His principal surely would not be liable, though the

conductor doubtless would be. Suppose in buying a railway ticket the

agent loses his temper and calls you a liar and a thief, you would

have an action against him for slander, unless you happened to be one,

but you would have no action against his principal for the company did

not employ him to slander its patrons; to do this was clearly not in

the scope of his employment.

An agent must not act for both parties in any transaction unless this

is understood by both of them. Nor can an agent receive any personal

profit from a transaction. Whatever profit there may be should be

given to the principal. Thus if an agent is authorized to buy a piece

of property for his principal and buys it for himself, or hides the

transaction under the name of another, the principal, after

discovering what his agent has done, can proceed to obtain the

property.

An agent must be faithful and exercise reasonable skill and diligence.

Money belonging to the principal should be deposited in the

principal's name, or, if in the agent's name, his agency should be

added; otherwise if the bank failed the agent would be responsible for

the loss. Again, if the agent deposited the money in his own name the

true owner could proceed against the bank to recover it.

A principal is liable for the statements and representations of his

agent that have been expressly authorized. He is also liable even for

false and fraudulent representations made in the course of the agent's

employment, especially those resulting in a contract from which the

principal reaped a benefit. Even though the statements may not have

been expressly authorized, such authority may be implied by law

because they are the natural and ordinary incidents of the agent's

position. Thus the position of a business manager often calls for a

great variety of acts, orders, notices, and the like, and statements

made while performing them are regarded as within the line of his

duty.

An agency may end at a fixed time, or when the particular object for

creating it has been accomplished, or by agreement of the parties. In

many cases an agency is created for an indefinite period, and in these

either party can terminate it whenever he desires. There are some

limitations to this principle. Neither party can wantonly sever the

relation at the loss of the other; and if one of them did he would be

liable for the damage sustained by the other. Likewise if the agent

has an interest of his own in the undertaking the principal cannot

terminate it before its completion without the agent's consent. Such a

rule is needful for his security. The bankruptcy of a business agent

operates as a revocation of his authority, but not when the act to be

done is of a personal nature like the execution of a deed.

If the principal becomes insane and unable to exercise an intelligent

direction of his business, his condition operates as a revocation or

suspension for the time being of his agent's authority. If on

recovering, he manifests no will to terminate his agent's authority,

it may be considered as a mere suspension, and his assent to acts done

during the suspension may be inferred from his forbearing to express

dissent when they come to his knowledge. Likewise an agent's insanity

terminates or suspends the agency for the time being unless he has an

interest of his own in the matter. Partial derangement or monomania

will not have that effect unless the mania relates to the agency, or

destroys the agent's ability to perform it.

Again, the marriage of a principal in some cases, unless a statute has

changed the common law, will revoke the power previously given,

especially when its execution will defeat or impair rights acquired by

marriage. Thus should a man give a power of attorney to another to

sell his homestead, but before effecting a sale the principal should

marry, his marriage would revoke the power. By marrying the wife

acquires an interest in the property which cannot be taken away from

her without her consent by joining in a deed of conveyance with her

husband. Likewise the marriage of a woman would operate to revoke a

power of attorney previously given by her whenever its execution would

defeat the rights acquired by her husband. An agent's marriage usually

will not affect the continuance of his agency.

When an agency is terminated it is often needful for the principal to

notify all customers for his protection, otherwise they might continue

to do business with the agent, supposing he was thus acting, and

involve him perhaps in heavy loss. This rule applies especially to

partnerships, each member of which is an agent with general authority

to do the kind of business in which it is engaged.

If the authority of an agent in writing is revoked, but is still left

with him and is shown to a third person who, having no knowledge of

the revocation, makes a contract with him, the principal will be held

for its execution.

Another rule of law may be given. The law assumes that any knowledge

acquired by an agent concerning his principal's business, will be

communicated to his principal, who is bound thereby. This rule though

is often difficult to apply. Thus, if a cashier of a bank should learn

that a note was defective, which was afterward discounted by his bank,

it would be regarded as having knowledge of the defect, because it

was the cashier's duty to inform the proper officials before they

discounted it.

The death of either agent or principal terminates the agency except in

cases of personal interest. And when an agent has appointed a

substitute or subagent without direct authority, and for his own

convenience, the agent's death annuls the authority of the subagent or

substitute, even though the agent was given the right of substitution.

But if the subagent's authority is derived directly from the

principal, it is not affected by the agent's death.

=Agreement to Purchase Land.=--An agreement to purchase land must be

in writing to be valid. Oral or parol agreements may be made to do

many things, but everywhere the law makes an exception of agreements

relating to land purchases. A statute that is quite similar in the

states requires this agreement to be in writing and signed by the

party against whom it is to be enforced. Thus if the seller wishes to

enforce such an agreement, he must produce a writing signed by the

purchaser; if the latter wishes to hold the seller, he must do the

same thing. The better way is to have the writing signed by both

parties.

How complete must the writing be? It need not mention the sum to be

paid for the land; it can be signed with a lead pencil: a stamp

signature will suffice. The entire agreement need not be on one piece

of paper. If it can be made out from written correspondence between

the two parties this will be enough.

To this rule of law are some exceptions. Therefore if an oral

agreement for the sale of land is followed by putting the buyer into

possession, the law will compel the seller to give him a deed. The

proceeding would consist of a petition addressed to a court of equity,

which would inquire into the facts, and if they were true, would

compel the seller to give the purchaser a deed of the land. The reason

for making this exception is, the purchaser would be a trespasser had

he no right to be there: to justify his possession the law permits him

to prove, if he can, his purchase of the land; and if he has bought

it, of course he ought to have a deed of his title.

Once, a purchaser who made an oral agreement and paid part of the

purchase money could compel the seller to give him a deed, and many

still think such action is sufficient to bind the bargain. This is no

longer the law. The practice gave rise to much fraud: A would assert

that he gave money to B to pay for land when in truth it was given for

some other purpose. So the courts abandoned the rule founded on the

part payment of the purchase price. A can however get back his money.

An option to purchase land, contained in an agreement to sell, must be

exercised within a reasonable time, if none is fixed in the agreement.

See _Deed_.

=Auctioneer.=--An auctioneer, employed by a person to sell his

property, is primarily the owner's agent only, and he remains his

exclusive agent to the moment when he accepts the purchaser's bid and

knocks down the property to him. On accepting the bid the auctioneer

is deemed to be the agent of the purchaser also, so far as is needful

to complete the sale; he may therefore bind the purchaser by entering

his name to the sale and by signing the memorandum thereof. His

signing is sufficient to satisfy the Statute of Frauds in any state

conferring on an agent authority to make and contract for the sale of

real and personal property without requiring his authority to be in

writing. His agency may begin before the time of the sale and continue

after it. Again, the entry of the purchaser's name must be made by the

auctioneer or his clerk immediately on the acceptance of the bid and

the striking down of the property at the place of sale. It cannot be

made afterward. The auctioneer at the sale is the agent of the

purchaser who by the act of bidding calls on him or his clerk to put

down his name as the purchaser. In such case there is little danger of

fraud. If the auctioneer could afterward do this he might change the

name, substitute another, and so perpetrate a fraud.

A sale by auction is complete by the Sales Act when the auctioneer

announces its completion by the fall of the hammer, or in other

customary manner. Until such announcement is made, any bidder may

retract his bid; and the auctioneer may withdraw the goods from sale

unless the auction has been announced to be without reserve.

Authority may be conferred on an auctioneer in the same manner as on

any other agent for the sale of similar property, verbally or in

writing. Even to make a contract for the sale of real estate, oral

authority to the auctioneer is sufficient, in the absence of a statute

to the contrary.

Authority to sell property does not of itself imply authority to sell

it at auction, and the purchaser therefore who has notice of the

agent's authority or knowledge sufficient to put him on inquiry,

acquires no title to the property thus purchased. If goods are sent

to an auction room to sell, this is deemed sufficient evidence of

authority to sell them in that manner and to protect whoever buys

them.

As an auctioneer is ordinarily a special agent, the purchaser is

supposed to know the terms and conditions imposed by the seller on the

agent. The seller or owner therefore is not bound by any terms stated

by the auctioneer differing from those given to him. If the owner has

imposed no terms on him, then he has the implied authority usually

existing in such cases.

An auctioneer has authority to accept the bid most favorable to the

seller when the sale is made without reserve and to strike down the

property to the purchaser. He cannot therefore consistently with his

duty to his principal refuse to accept bids, unless the bidder is

irresponsible or refuses to comply with the terms of the sale. He is

justified in rejecting the bids of insane persons, minors, drunken

persons, trustees of the property, and perhaps in some cases of

married women.

An auctioneer cannot transfer his duty to another. This rule does not

prevent him from employing others to do incidental things connected

with the keeping and the moving of the property. He cannot sell on

credit contrary to his instructions or custom; nor would he be secure

in following custom if instructed to do otherwise. After the bid has

been accepted the bidder has no authority to withdraw it without the

owner's consent, nor can he be permitted to do so by the auctioneer.

Nor can he sell at private sale if his instruction is to sell

publicly, nor can he justify himself even if he acted in good faith

and sold the property for more than the minimum price fixed by the

owners. Nor can he sell the property to himself, nor authorize any

other person to bid and purchase for him either directly or

indirectly. It is impossible with good faith to combine the

inconsistent capacities of seller and buyer, crier and bidder, in one

and the same transaction.

He has no authority to warrant the quality of property sold except

custom or authority is expressly given to him. Nor is he an insurer of

the safety of the goods entrusted to him for sale; he must however use

ordinary and reasonable care in keeping them. Lastly, an auctioneer

should disclose his principal and contract in his name. If one bought

property therefore supposing it belonged to A, when in fact it

belonged to B, through any manipulation of the auctioneer, the bidder

would not be bound.

=Automobile.=--The members of the public have a right to use the

public avenues for the purpose of travel and of transporting property:

nor has the driver of horses any right in the road superior to the

right of the driver of an automobile. Each has the same rights, and

each is equally restricted in exercising them by the corresponding

rights of the other.

Again, the public ways are not confined to the original use of them,

nor to horses and ordinary carriages. "The use to which the public

thoroughfare may be put comprehends all modern means of carrying

including the electric street railroad and automobile." It has been

declared that the fact that motor vehicles may be novel and unusual in

appearance and for that reason are likely to frighten horses which are

unaccustomed to see them, is no reason why the courts should adopt the

view of prohibiting such machines.

The general rule is that all travelers have equal rights to use the

highways. An automobile therefore has the same rights and no more than

those of a footman.

The mere fact that automobiles are run by motor power, and may be

operated at a dangerous and high rate of speed, gives them no superior

rights on the highway over other vehicles, any more so than would the

driving of a race horse give the driver superior rights on the highway

over his less fortunate neighbor who is pursuing his journey behind a

slower horse.

There is no authority or power in the state to exclude non-resident

motorists from the public ways, nor have the states power to place

greater restrictions or burdens on non-resident automobilists than

those imposed on their own citizens.

A license to operate an automobile is merely a privilege. It does not

constitute a contract, consequently it does not necessarily pass to a

purchaser of the vehicle, and may, for a good reason, be revoked.

Moreover the charge imposed for the privilege of operating a motor on

the highway is not generally considered a tax, only a mere license or

privilege fee.

An automobile may be hired from the owner. This is called in law a

bailment. The bailor is not responsible generally for any negligence

of the hirer in operating the car. Nor is the rule changed should the

hirer be an unskilled person, unless he was an immature child or

clearly lacking in mental capacity, or was intoxicated. Where the

owner of an automobile delivered it to another by agreement, who was

to pay the purchase price from the money derived from its use, and

thereafter had complete control of the machine, his negligence could

not be charged to the seller.

Again, where an automobile is hired and the chauffeur is also

furnished by the owner, who pays him for operating the car, and the

hirer has no authority over him except to direct his ways of going,

the chauffeur is regarded as the servant of the owner. He, therefore,

and not the hirer is responsible for the negligence of the chauffeur.

Of course, the rule would be changed if the hirer assumed the

management of the car: then the hirer alone would be liable for the

chauffeur's negligence.

A party who hires an automobile from another is bound to take only

ordinary care of it and is not responsible for damage whenever

ordinary prudence has been exercised while the car was in his custody.

If lost through theft, or is injured as a result of violence, the

hirer is only answerable when these consequences were clearly the

result of his own imprudence or negligence. The hirer though must

account for the loss or injury. Having done this, the proof of

negligence or want of care is thrown on the bailor.

If the hirer should sell the automobile without authority to a third

party, the owner or bailor may bring an action against even an

innocent purchaser who believed that the hirer had the title and power

to sell.

There is an implied obligation on the hirer's part to use the car only

for the purpose and in the manner for which it was hired. And if it is

used in a different way and for a longer time, the hirer may be

responsible for a loss even though this was inevitable.

Suppose the hirer misuses the car, what can the owner do? He can

repossess himself, if this can be done peaceably, otherwise he must

bring an action for the purpose. As the hirer acquires a qualified

title to the property, he can maintain an action against all persons

except the owner, and even against him so far as the contract of

letting may set forth the relations between them.

When an owner or hirer undertakes to convey a passenger to a specified

place and, while on the way, the car breaks down, if it cannot be

properly mended at the time and the owner or hirer is able to furnish

another, the law requires him to do so and thus fulfil his contract.

"The owner of a motor vehicle," says Huddy, "is of course entitled to

compensation for the use of the machine. If a definite sum is not

stated in the contract between the parties, there arises an implied

undertaking that the hirer shall pay a reasonable amount. One who uses

another's automobile without consent or knowledge of the owner, may be

liable to pay a reasonable hire therefor. In case the hirer is a

corporation, there may arise the question whether the agent of the

company making the contract has authority to bind the company. Where a

machine is hired for joy riding on Sunday, it has been held that the

contract is illegal and the hirer cannot recover for the use of the

automobile."

The speed of automobiles along the public highways may be regulated by

law. A municipality may forbid the use of some kinds of motor vehicles

on certain streets, but it cannot broadly exclude all of them from all

the streets. The rules regulating travel on highways in this country

are called, "the law of the road." The object of these rules is to

prevent collisions and other accidents, which would be likely to occur

if no regulations existed.

A pedestrian who is about to cross a street may rely on the law of the

road that vehicles will approach on the proper side of the street.

This rule however does not apply to travelers walking along a rural

highway. Huddy says: "When overtaking or meeting such a person, it is

the duty of both the pedestrian and the driver of the machine to

exercise ordinary care to avoid a collision, but no rule is, as a

general proposition, definitely prescribed as to which side of the

pedestrian the passage shall be made."

The law of the road requiring vehicles to pass each other on the

right, contrary to the English custom, has been reënforced in many or

all the states by statutory enactments, and applies also to

automobiles. When, therefore, two vehicles meet and collide on a

public highway, which is wide enough for them to pass with safety, the

traveler on the wrong side of the road is responsible for the injury

sustained by the other. But a traveler is not justified in getting his

machine on the right-hand side of the road and then proceeding

regardless of other travelers; on the contrary, the duty of exercising

reasonable care to avoid injuries to others still continues.

Not only must each one pass to the right, but each must pass on his

own side of the center line of the highway, or wrought part of the

road. And when the road is covered with snow, travelers who meet must

turn to the right of the traveled part of the road as it then appears,

regardless of what would be the traveled part when the snow is gone.

After passing the rear of the forward vehicle an automobilist must

exercise reasonable care in turning back toward the right into the

center of the highway, and if he turns too soon he may be liable for

damages caused by striking or frightening the horses. "If two vehicles

meet in the street, it is the duty of each of them, as seasonably as

he can, to get each on his own right-hand side of the traveled way of

the street."

The rights of travelers along intersecting streets are equal, and each

must exercise ordinary care to avoid injury to the other. An

automobilist nearing an intersection should run at proper speed, have

his car under reasonable control, and along the right-hand side of the

street. If two travelers approach the street crossing at the same time

neither is justified in assuming that the other will stop to let him

pass. When one vehicle reaches the intersection directly in advance of

the other, he is generally accorded the right of way, and the other

should delay his progress to enable the other to pass in safety.

The driver of an automobile may be charged with negligence if, without

warning to a vehicle approaching from the rear, he turns or backs his

machine and causes a collision. Indeed, it is negligence for a

chauffeur to back his machine on a city street or public highway

without looking backward; and especially if one backs his car on a

street car track without looking for street cars.

If an obstruction exists on the right-hand side of a highway, the

driver of a car may be justified in passing to the other side, and in

driving along that side until he has passed the obstacle. Under such

circumstances he has a right to be on the left side temporarily; and

if he exercises the proper degree of care while there, is not liable

for injuries arising from a collision with another traveler. But if

the obstruction is merely temporary, it may be the duty of the driver

to wait for the removal and not to pass on the wrong side of the

highway.

An automobilist must exercise reasonable or ordinary care to avoid

injury to other persons using the highway. What this is depends on

many circumstances, and each case to some extent is decided by its own

facts. Consequently thousands of cases have already arisen, and

doubtless they will still multiply as long as automobiles are used and

their users are negligent.

The competency of the driver is one of the unending questions. Of

course he should be physically fit, not subject to sudden attacks of

dizziness, possessing sufficient strength and proper eyesight and a

sober non-excitable disposition. It is said, that a chauffeur is not

incompetent who requires glasses. But he certainly would be if his

eyesight was poor and could not be aided by the use of them.

The driver must at all times have his car under reasonable control so

that he can stop in time to avoid injury. He must keep a reasonably

careful lookout for other travelers in order to avoid collision; also

for defects in the highway. If by reason of weather conditions, lights

or other obstructions, he is unable to see ahead of him, he should

stop his car. If there be no facilities for stopping for the night, a

driver is not negligent should he proceed through the fog.

Passing to the liability of the owner of a car for the acts of his

chauffeur, the general rule is, he is then liable when the chauffeur

is acting within the scope of his owner's business. When the owner

himself is riding in the car there is less difficulty in fixing the

liability, but when the chauffeur uses the car without the owner's

consent, he is not liable for the conduct of the driver. And this is

especially so in using a car contrary to the owner's instructions and

for the chauffeur's pleasure; or in using it for his own business with

the owner's consent. And the same rule generally prevails whenever a

member of a family uses his parent's car without his knowledge and

consent, and especially when forbidden. But the parent is liable for

the running of a car with his knowledge by a member of his family and

for the convenience or pleasure of other members. See _Chauffeur_;

_Garage Keeper_.

=Bailor and Bailee.=--To create this relation the property must be

delivered to the bailee. Though a minor cannot make such a contract,

yet if property comes into his possession he must exercise proper care

of it. Should he hire a horse and kill the animal by rash driving, he

would be liable for its value. A corporation may act as bailor or

bailee, and an agent acting therefor would render the corporation

liable unless he acted beyond the scope of his authority.

Suppose one picks up a pocketbook, does he become the owner? Is he a

bailee? Yes, and must make an honest, intelligent effort to find the

owner; if failing to do so, then he may retain it as his own,

meanwhile his right as finder is perfect as against all others. Should

the true owner appear, whatever right the finder may have against him

for recompense for the care and expense in keeping and preserving the

property, his status as finder does not give him any lien unless the

owner has offered a reward to whoever will restore the property. To

this extent a lien thereon is thereby created.

The statutes generally provide what a person must do who has found

lost property. Suppose a person appears who claims to be the owner of

the thing found, what shall the finder do in the way of submitting it

to his inspection? In one of the recent cases the court decided that

it was a question of fact and not of law whether the finder of lost

property had given a fair and reasonable opportunity for its

identification before restoring it, and whether the claimant should

have been given an opportunity to inspect it in order to decide

whether it belonged to him.

Putnam's Handy Law Book for the Layman · 第 1 / 24 段