Is necessary will not bring the appointment within this rule.*

Where all of the partners have executed a sealed instrument,

It seems that parol authority to one to fill in the name of the

grantee is good.^

§ 20. Parties. — Unincorporated clubs, etc., as principals.

Unincorporated clubs and other voluntary associations, as

churches, political organizations, and the like, are not com-

petent principals because they are not legal entities. But

their members are competent joint principals, and may be

held as such if they have acted jointly in the appointment of

an agent.^ Mere membership in the club does not make them

principals as to contracts made by the officers or committees

of the club;'^ it must be shown that they authorized the agent

of the club to act as their agent and pledge their credit. But

this is a question not of the competency of the principal, but

of the fact and extent of the agency.^

^ Leake on Contr. (3d cd.) p. 451 and cases cited.

2 Tillier V. Whitehead, 1 Dull. (Pa.) 2g9 ; Lucas V. Bank, 2 Stew.

(Ala.) 280.

^ Charles v. Eshleman, 5 Colo. 107.

* Lucas V. Bank, supra ; Edwards v. Dillon, 147 111. 14.

' Cribben v. Deal, 21 Ore. 211. See Parsons on Partnership, В§ 122;

post, В§ 26.

В« Kay V. Powers, 134 Mass. 22.

' Flemyng v. Hector, 2 M. & W. 172 ; Hawke v. Cole, 62 L. T. Rep.

N. 8. 6r)8; Ash V. Guie, 97 Pa. St. 493.

8 Post, в§ 185.

BY AGREEMENT. 33

§ 21. Parties. — Aliens as principals.

Aliens are generally as competent to create an agency as

citizens or subjects. But an alien enemy cannot, during the

continuance of a state of war, make any contract with a

citizen of the United States which involves any communica-

tion across the lines of hostilities.^ Accordingly he cannot

appoint an agent in the United States during the continuance

of the war.2 But if he have an agent here at the outbreak of

the war, the agency is not terminated or suspended for those

purposes not involving a communication across the lines of

hostilities, either between the principal and the agent or the

agent and third persons.^

§ 22. Parties. — Joint principals.

Two or more persons may be jointly principals in a con-

tract of agency. This has already been illustrated in the

case of partnerships and unincorporated clubs.* In the case

of a partnership each partner represents his co-partners and

may bind them by the appointment of an agent. But joint-

owners of property do not stand in this relationship, and

each must assent for himself to the appointment of the agent

in order to be bound as a principal.^ If a joint power be

given, it does not authorize the agent to act for one of the

principals in matters affecting his individual interests.^ In

unincorporated associations, not being partnerships, one mem-

ber does not represent the others, nor do a majority represent

a minority, except by assent."

1 Kershaw v. Kelsey, 100 Mass. 561 ; United States v. Grossmayer,

9 Wall (U, S.)72.

2 United States v. Grossmayer, 9 Wall. 72.

8 Monsseaux v. Urquhart, 19 La. An. 482; Ward v. Smith, 7 Wall.

(U. S.) 447.

* Atite, §§19, 20.

5 Keay r. Fenwick, L. R. 1 C. P. Div- 745; Perminter v. Kelly, 18 Ala.

716.

6 Gilbert v. How, 45 Minn. 121.

'' Flemyng v. Hector, 2 M. & W. 172; Todd v. Enily, 7 M. & W. 427;

Devoss V. Gray, 22 Oh. St. 159; Newell v. Borden, 128 Mass. 31.

3

3-4 FORMATION OF AGENCY

§ 23. Parties. — Competency of agent.

Any person may, as to third persons, act as an agcnt,^

unless, perhaps, one who is too young or too imbecile to

perform at all the act in question.^ So infants,^ married

women,^ slaves,^ and probably lunatics and other incompet-

ents maybe the channel of communication between a principal

and one with whom he deals. Of course the contract of

agency between the principal and the incompetent is subject

to the usual rules governing contracts by persons under

disability,^ and the contract of warranty of authority'^ be-

tween the agent and the third party would be governed by like

considerations.

As between the agent and princijjal, the agent may be

disqualified by the fact that he has an interest in the subject-

matter of the agency adverse to that of the principal.^ As

between the principal and a third person the agent may be

disqualified by the fact that the agent is secretly acting for

both of the parties to the contract to the knowledge of the

third person ; this would amount to a combination between

the agent and the third party to defraud the princij)al.^ So

one cannot contract for himself in person and for another by

representation, that is to say, an agent cannot contract with

himself.

In cases where the Statute of Frauds requires a writing,

signed by a party or his agent, the agent contemplated by

the statute, who is to bind the party to be charged by signing

^ Coke on Littleton, 52 a.

^ Lyon r. Kont, 45 Ala. 656.

8 Talbot V. Bowen, 1 A. K. Marsh. (Ky.) 436 ; In re D'Angibau, L. R.

15 Ch. D. 228.

* Hopkins v. Mollinieux, 4 Wend. (X. Y.) 465; Butler v. Trice, 110

Mass. 97.

^ Lyon V. Kent, supra ; Chastain v. Bowman, 1 Hill's So. Car. Law.

270.

В« Widrig V. Taggart, 51 Mich. 103.

T Post, В§ 90.

* Tewksbury v. Spruance, 75 111. 187; Crump i'. Ingersoll, 44 Minn.

84; Tau.ssig r. Hart, 58 N. Y. 425.

9 ^Layor, etc. of Salford v. Lever, L. R. 1891, 1 Q. B. 168; City of

Boston V. Simmons, 150 Mass. 461.

BY AGREEMENT. 35

the required memorandum, must be some third person and not

the other contracting party .^ An auctioneer selling for the

vendor may himself, or through his clerk, make the memoran-

dum which will bind both parties.^ So also a broker.^ But

an auctioneer's implied authority to sign for the buyer is

confined to the time of the sale and cannot be exercised at

any later date.*

The law may fix the qualifications of agents, as in the case

of attorneys-at-law, and in such cases only a duly licensed

person can act as agent.^

§ 24. Parties. — Joint agents.

The agents entrusted with the authority from the principal

may be either several or joint. The only question of

difficulty connected with a joint agency is as to the manner

in which it must be executed, and that may best be disposed

of at this point.

Where the agency is joint, that is, where two or more

persons are authorized jointly to act for the principal, the

execution of the agency must generally be joint.^ But

whether the agency is joint or several is a matter of con-

struction to be gathered from the terms of the authority and

considerations of custom or necessity." Two cases are clear

in which the agency though confided to two or more persons

is presumed to be several and not joint, so that one may act

for all : the first is the case of a partnership acting as agent,*

1 Wright V. Dannah, 2 Camp. 203 ; Farebrother v. Simmons, 5 B. &

Aid. 333.

2 Bird V. Boulter, 4 B. & Ad. 443; Gill v. Bickuell, 2 Cush. (Mass.)

355.

3 Butler V. Thomson, 92 U. S. 412 ; Newberry v. Wall, 84 N. Y. 576;

Coddington v. Goddard, 16 Gray (Mass.), 436.

4 Horton v. McCarty, 53 Me.' 394.

8 Cobb V. Superior Court, 43 Mich. 289.

6 Brown v. Andrew, 18 L. J. Q. B. 153; Commonwealth lk Canal Com-

missioners, 9 Watts (Pa.), 466.

' Guthrie v. Armstrong, 5 B. & Aid. 628; Hawley v. Keeler, 53 N. Y.

114.

8 Deakin v. Underwood, 37 Minn. 98; Jeffries v. Ins. Co., 110 U. S.

305.

36 FORMATION OF AGENCY

and the second is the case where the agency is a public one

or one created by hnv ; ^ or where the agency is that of direct-

ors of a corporation or a body of like powers.^ In the first of

these cases one of the joint agents may act for all, and in the

second a majority may decide for all, provided a quorum

meet and confer after due notice to all.^

§ 25. Parties. — Sub-agents.

Sub-agents may be appointed either, (1) by an agreement

between the agent and the sub-agent in which the agent as to

the sub-agent is principal, or (2) by an agreement between

the agent and the sub-agent in which the agent acts for the

princi})al. In the first case, a privity of contract or gratu-