If an agent in breach of his duty to act in person commits

the duty to another, he renders himself liable to his principal

for all damages resulting therefrom. If, for example, he is

authorized to sell goods, and turns them over instead to a sub-

agent, he is guilty of conversion, and must account in full for

the value of the goods.^ And for any negligence or miscon-

duct of a sub-agent whose appointment is not authorized by

the principal, the agent remains liable.'''

Tiie rule, therefore, is that an agent cannot, without

authority, delegate to a substitute the exercise of the judg-

ment or discretion which he has contracted to place at the

service of the principal.

To this rule, there are no real exceptions. All seeming

exceptions range themselves under the head of an actual or

1 Ilnffcut's Anson on Cent. p. 287 et scq. ; Robson v. Drummond,

2 B. & A. 303; Arkansas Smelting Co. v. Belden Mining Co., 127 U. S.

379 ; La Rue v. Goezinger, 84 Cal. 281 ; Rochester Lantern Co. v. Stiles,

135 N. Y. 209.

2 Ante, В§ 92.

8 Coles V. Trecothick, 9 Ves. 234; Cockran v. Irlam, 2 I\I. & S. 301 ;

Wright V. Boynton, 37 N. H. 9; Hunt v. Douglass, 22 Vt. 128.

* Eggleston v. Boardman, 37 Mich. 14.

5 Howard's Case, L. R. 1 Ch. 561 ; Ex j)arte Birmingham Banking

Co., L. R. 3 Ch. 651.

6 Catlin V. Bell, 4 Camp. 183; Loomis v. Simpson, 13 Iowa, 532;

Campbell v. Reeves, 3 Head (Tenn.), 226; Laverty v. Snethen, 68 N. Y.

522.

7 Barnard v. Coffin, 141 Mass. 37; Fairchild v. King, 102 Cal. 320.

]1,S PRINCIPAL AND ACKXT.

iinplicd authority from the ))rincii):il to the agent to em])loy

Bub-agents,^ or under tlie head of a ratification or ac(|uicscence

in the cniploynient of such sub-agents.^ Such authority may

arise from actual agreement or fi-om usage.^ If there be any

exception it is to be sought in cases of necessity or emergency

not contemplated l)y the parties.*

В§ 95. Same: (3) sub-agency by authority.

Authority to employ sub-agents must he sought in the

terms of the original appointment, or in the usages or cus-

toms of the particular agency, or in the obvious necessities of

the case.^ It is entirely clear that certain duties confided to

an agent cannot be performed by him personally, and that he

will and must employ sub-agents in order to accomplish the

purposes of the agency. In such cases there is an implied

authority from the principal to the agent to make use of

such additional instrumentalities as may be necessary and

prudent.

Assuming such authority from the principal to be expressed

or implied in the terms or nature of the agency, the second-

ary question is whether the agent's liability is merely to use

due care in the selection of the sub-agent, or whether he also

remains liable for the negligence or misconduct of such sub-

agent. The answer hinges ui)on the notion of privity of con-

tract or undertaking. Upon this, there may be two views :

first, that the principal's sole contract is with the agent, but

that it authorizes the agent to act through sub-agents, although

remaining liable for all consequences; second, that the prin-

ci])al authorizes the agent to make for the principal a contract

with a suitable sub-agent, and create thereby a i>rivity of

^ De Biissche v. Alt, S Cli. 1)1 v. 286.