If he has justified the belief of a third party that the person

assuming to be his agent was authorized to do what was done,

It is no answer for him to say that no authority had been

given, or that it did not reach so far, and that the third party

had acted upon a mistaken conclusion. He is estopped to

take refuge in such a defence. If a loss is to be borne, the

author of the error must bear it." ^

The doctrines elsewhere set forth as to the extent of an

agent's authority to bind his principal* are based upon the

Pickering v. Busk, 15 East, 38; Ewart on Estoppel, pp. 2-16, 484; Levi

V. Booth, 58 Md. 305.

1 Bickford v. Menier, 107 N. Y. 490.

2 Post, В§ 102 et seq.

8 Bronson's Ex'r v. Chappell, 12 Wall. (U. S.) 681. See also HiU v.

Wand, 47 Kans. 340 ; Ewart on Estoppel, pp. 501-512.

♦ Post, §§ 102-106.

BY ESTOrPEL. 67

doctrine of estoppel so far as tliey include acts beyond tbe

authority conferred. Assuming an agent to have been ap-

pointed for some purpose and authorized to do some acts, the

liability of the principal for acts beyond the authority con-

ferred may rest upon various specific considerations, but

all or most of them may be reduced to the basis of estoppel.

Briefly stated, the elements to be considered in fixing the

principal's liability are: (1) the power actually conferred;

(2) the powers reasonably necessary in the execution of

those actually conferred ; ^ (3) the powers annexed by custom

or usage to the agency in question, considered either as to

the nature of the agency, or as to the place, time, or cir-

cumstances under which it is to be exercised ;2 (4) the

powers (in addition to those above named) which the prin-

cipal, by his words or conduct, reasonably leads third persons

to believe that his agent possesses. Now the last of these

elements rests indubitably upon estoppel and can find no

other doctrine in the law applicable to it.^ But the second

and third of the elements enumerated may be referred either

to a doctrine of " implied authority " or to a doctrine of

estoppel. It is sometimes said that it will always be implied

that a principal has conferred, together with the express

authority, the auxiliary authority reasonably necessary to its

execution, or the authority usually incident to the particular

agency.* It must be remembered, however, that the fact may

be otherwise, and that it is necessary to invoke the doctrine

of estoppel in order to prevent the principal from asserting

the fact. Having by creating the agency represented that

the agent has the authority incidental to it or affixed to it by

custom, lie will not afterward be heard to say that the agency

was by express stipulations confined within narrower limits.

1 " When one commands a thing to be done, he impliedly commands

all [convenient] means to be used for doing this." Argument of counsel

in Southerne v. Howe, 2 RoUe's Rep. 5, 26 (1618).

2 Anonymous, 12 Mod. 514 (1701) ; Nickson v. Brohan, 10 Mod. 109

(1712).

3 Johnson v. Hurley, 115 Mo. 513; Bradish v. Belknap, 41 Vt. 172.

Iluutley V. Mathias, 90 N. C. 101.

C8 • FOKMATION OF AGENCY

This is, of course, subject to the qualification tliat the third

party, in dealing with the agent, does not know of the express

liuiitation upon the incidental or customary powers. Ex-

amples of such estoppels arc discussed in subsequent sections.^

It will be observed that the doctrine of estoppel is applicable

only to cases where a representative is authorized to make

promises or representations upon which third persons are

invited to act, that is, it is applicable to a princiiВ»al who

authorizes his agent to create primary obligations, but not to

a master who never authorizes his servant to create such

obligations.^

В§ 52 a. Application to agent's torta.

In most cases of tort, the doctrine of estoppel is inapplicable.

The liability of the master for the servant's unauthorized

torts rests upon other and different considerations.^ But

there is one class of torts, so-called, which properly belong

inider the head of principal and agent, rather than that of

master and servant, and this because they arise out of

agency instead of service, and the principal's liability for

them rests upon grounds similar to those that fix the liability

of a princii)al for his agent's contracts.'*

If in conducting the agency the agent makes a representation

which is either naturally incidental to, or customary in, such

agencies, the principal will be estopped to deny that the agent

had authority to make it as against one who reasonably relies

upon it to his prejudice.^ In ordinary cases of tort, there is

no estoppel because the third party has not changed his

position in consequence of any act of the agent ; but in

deceit and torts analogous to deceit, the third party does

change his })<)sition relying upon the agent's rciВ»resentation,