In tort for negligence. Bigelow on Torts, 7th ed., в§в§ 54-56.

^ Ames, Hist, of Assumpsit, 2 Harv. Law Rev. 8.

Intkoducticn. 13

Moreover the first actions for breach of parol promises were

actions on the case for deceit,^ and assumpsit to-day retains in

the doctrine of consideration the earmarks of its origin,

" because only he who had incurred detriment ujjon the failh

of the defendant's promise, could maintain the action on the

case for deceit in the time of Ilcnry VII." 2 Deceit, there-

fore, while sounding in tort, resembles contract and estoppel

In this, that it arises from a voluntary representation by one

party acted upon by another to his detriment. Strictly speak-

Ing, the obligation is created voluntarily by the one making

the representation, but its extent is determined by the detri-

ment suffered by the one acting upon it. It is therefore

proper, or at least it serves a useful purpose, to include

deceit among the voluntary bifactoral obligations.

(4) The third distinction between representation through

an agent, and representation through a servant, lies in the

nature of the test fixing the constituent's liability for acts of

his representative in excess of the actual authority. In the

case of the principal, this test is to be sought in the doctrine

of estoppel. In the case of the master, this test is to be

sought in the doctrine that one who employs an instrumen-

tality for an operative act must remain liable, within reason-

able limits, for its defects. The nature of these tests will be

explained more fully in the succeeding section. What it is

Important to note here is the fact that the distinction between

the two branches of agency involves more than a mere matter

of classification, and goes direct to the central problem of

agency, namely, when and upon what doctrine is a consti-

tuent liable for the acts of his representative in excess of the

authority conferred.

В§ 5. Basis of the constituent's liability for the acts of his repre-

sentative.

The main problem of agency is to discover when, and under

what circumstances, a man is liable for the acts of his repre-

sentative. This problem would be a comparatively easy one

1 Ames, Hist, of Assumpsit, 2 Harv. Law Rev. 15.

8 Ibid. P. 16.

1-i AGENCY.

were it true that a man is obligated by the act of his

representative only when he has in fact authorized the repre-

sentative to do or not to do that which results in obligation,

or when he has ratified as his own an act of his representative

not originally authorized. Agency is a compendious term

signifying the instrumentality through which a i-esult is ac-

complished ; in its normal sense it means the instrumenlality

through which the will of an individual is accomplished. If

therefore a man chooses to em])loy a particular agency to

carry out his i)re-determined purpose, he is of course respon-

sible for the result determined upon and reached, as fully as