Inducing a third person to act. A servant may cause damage

by acting upon a third person or his property or rights. In

representation through an agent there are always three per-

sons involved, the principal, the agent, and the third person.

In representation through a servant, there are only two per-

sons primarily involved, the master and the servant, and the

third person is introduced only when the servant commits, in

the course of his master's business, a breach of the obligations

owing by the master to a third person. In the first case, there

are three persons and the third is induced to act. In the sec-

ond case, there are three persons and the third is acted upon.

(2) The secondary distinction between representation

through an agent, and representation through a servant, hangs

In sequence upon the primary one. The agent, by influencing

the will of the third person, induces him to enter into new

legal relations with the principal. The servant, by acting

upon the already existing legal relations of the principal and |

the third person, may commit a breach of his principal's obli-

gations. The agent lays upon his principal a primary obliga-

tion to make good a promise or a representation. A servant

may lay upon his master a secondary obligation to repair the

breach of an antecedent or primary one. The law governing

12 Agency.

principal and agent has therefore to do with the creation of

new obligations. The law governing master and servant has

to do with the breach of existing obligations. The main, but

notthejexclusive, subject-matter of the first is contract. The

main, but not the exclusive, subject-matter of the second is

tort. The first includes, besides contract, such gratuitous

undertakings as may be enforceable, such estoppel obligations

as may be enforceable, and such tort obligations as result from

a false rci)resentation acted upon by the one to whom it is

made, namely, deceit and torts analogous to deceit. The

second includes, besides torts, the breach of existing contract

obligations or voluntary undertakings, though it will usually

be found in such cases that the undertaking, while it may

originate in contract, is really larger than contract, and that

its breach is remediable in an action ex delicto.^

An agent therefore is a representative who creates bifac-

toral obligations to which his principal is a party. These

are usually contracts ; but other concepts of the law fall

within the classification, namely, gratuitous undertakings,

estoppel, and deceit. In a gratuitous undertaking the obliga-

tion is voluntary, and it is fixed by the act of the one who

suffers a detriment relying upon it. In estoppel the obliga-

tion is voluntarily undertaken by making a representation

and is fixed by the act of the one who suffers a detriment

relying upon it ; thereafter the maker of the representation

Is estopped to deny its truth. In deceit, the matter is not so

clear because of the habit of regarding deceit as strictly a

tort arising from the breach of an absolute involuntary obli-

gation. But deceit differs from all other torts in this, that it

consists in influencing the conduct of another person to his

damage. Its first appearance seems to have been in an action

for a false warranty, and it was not until 1778 that an action

in assumpsit on a warranty first appears in the reported cascs.^

^ For example, where a carrier undertakes by contract to transport a

passenger, and liis servant entrusted with tlie performance of the duty is

negligent, the passenger has an action eitlier for breach of contract, or