the appointment of a subagent may be justified by a known and established usage or course of dealing.' Parties contracting in reference to a subject-matter concerning which there is such a usage may well be presumed to have it in contemplation. In contractis tacite insunt quae sunt moris et consuetudinis, is a maxim of law."

Thus where goods were entrusted by the plaintiff to a merchandise broker to sell, deliver and receive payment, and the broker deposited them in accordance with an usage with a commission merchant connected with an auctioneer, taking his note therefor, and some of the goods were afterward sold at a less price than the broker was authorized to sell them for, it was held that the principal was bound by such act of the broker and that he could not maintain trover against the commission merchant. Said the court: "Business to an immense amount has been transacted in this way, and the usage being established, it follows that when the plaintiff authorized his broker to sell, he authorized him to sell according to the usage; and when the defendants dealt with the broker, even if they had known that the goods were not his own, they had a right to consider him as invested with power to deal according to the usage."

may

8

The power of a bank receiving a note for collection at another place, to forward the note to a bank at that place for payment, also be derived from the same source, as may other powers referred to in the preceding section. Usage, however, will not be permitted to contravene express instructions, and if the agent has been denied the power of delegation, usage can not confer it. Nor can usage justify the agent in violating the funda

Buckland. Conway, 16 Mass. 396; Smith v. Sublett, 28 Tex. 163; Lynn . Burguoyne, 13 B. Mon. (Ky.) 400; Moon v. Guardians, 3 Bing. N. Cas. 814; Gray v. Murray, 3 Johns. (N. Y.) Ch. 167; Darling v. Stanwood, 14 Allen (Mass.) 504, Johnson v. Cunningham, 1 Ala. 249.

2 See Ewell's Evans' Agency, 58. Laussatt o. Lippincott, 6 Serg. &

R. (Penn.) 386, 9 Am. Dec. 440.

4 Wilson v. Smith, 3 How. (U. 8.) 763, where the court speaks of it as an authority fairly to be implied

from the usual course of trade or the nature of the transaction.

5 Barksdale Brown, 1 Nott. & McC. (S. C.) 517, 9 Am. Dec 720; Bliss v. Arnold, 8 Vt. 252, 30 Am. Dec 467; Hall v. Storrs, 7 Wis. 253; Day v. Holmes, 103 Mass. 306; Parsons v Martin, 11 Gray (Mass.) 112; Clark . Van Northwick, I Pick. (Mass) 343; Leland v. Douglass, 1 Wend. (N. Y.) 490; Catlin v. Smith, 24 Vt. 85; Hutchings v. Ladd, 16 Mich. 493.

mental duties which he owes to his principal or to change the intrinsic character of the contract existing between them.'

§ 196. 4. When originally contemplated. If the appointment of a subagent was contemplated by the parties at the time of the creation of the agent's authority, or if it was then expected that subagents might or would be employed, this would be treated as at least implied authority for such an appointment.'

$197. Effect of Appointment. It is not the purpose here to go minutely into the mutual rights and obligations of the principal, agent, and subagent. This subject is reserved for subsequent consideration. But

In general. If an agent employs a subagent for his principal, and by his authority, expressed or implied, then the subagent is the agent of the principal and is directly responsible to the principal for his conduct, and if damage results from the conduct of such subagent, the agent is only responsible in case he has not exercised due care in the selection of the subagent.

But if the agent, having undertaken to transact the business of his principal, employs a subagent on his own account to assist him in what he has undertaken to do, he does so at his own risk, and there is no privity between such subagent and the principal. The subagent is, therefore, the agent of the agent only and is responsible to him for his conduct, while the agent is responsible to the principal for the manner in which the business has been done, whether by himself, or his servant or his agent.'

'Robinson v. Mollett, L. R. 7 H. of L. 802, 14 Eng. Rep. 177; Minnesota Cent. R. R. Co. v. Morgan, 52 Barb. (N. Y.) 217.

Johnson . Cunningham, 1 Ala. 249; Duluth Nat. Bank o. Fire Ins. Co. 85 Tenn. 76, 4 Am. St, Rep. 744.

Appleton Bank v. McGilvray, 4 Gray (Mass.) 518; 64 Am. Dec. 92: Sexton. Weaver, 141 Mass. 273;

126

Campbell v. Reeves, 3 Head (Tenn.) 226; Commercial Bank v. Jones, 18 Tex. 811; Barnard Coffin, 141 Mass. 37; 55 Am. Rep. 443; Warren Bank v. Suffolk Bank, 10 Cush. (Mass.) 582; Pownall v. Bair, 78 Penn. St. 403; Darling v. Stanwood, 14 Allen (Mass.) 504; Stephens . Babcock, 8 B. & Adol. 354; McCants. Wells, 4 S. C. 381.

in what manner and under what conditions the relation of principal and agent may be created, it now remains to be seen in what manner and under what conditions that relation may be terminated, and also to ascertain what results may follow from such termination.

ity may be effected by a variety of methods. Thus the agency may have been created to endure only for a limited period, and at the expiration of that period would come to a close by the mere efflux of time; or it may have been called into being for the express purpose of performing a single act or a series of acts, and these being performed the agency would be terminated by the accomplishment of that for which it was created. Again, under certain circumstances, the agency may be concluded by the act of the parties, as where the principal revokes or the agent renounces it. So subsequent changes in the condition or relation of the parties may render the continuance of the agency inconsist ent or impossible, and it will be terminated by operation of law.

For convenience of treatment these various methods may be distributed under three heads: I. By original agreement. II. By act of the parties, and, III. By operation of law.

I.

BY ORIGINAL AGREEMENT.

§ 200. 1. By Efflux of Time. Where the agency was originally created to endure during a given period or until the happening of a certain event, the expiration of that period and the happening of that event would respectively operate to terminate the agency.

Where the language used by the parties is express as to the length of time the agency is to continue, there can of course be no doubt as to its duration; but this result may also be reached where the period is not expressly fixed but must be determined by the facts and circumstances of the case.

Thus where a resident of Australia who was possessed of estates in England, executed a written power of attorney to a firm of English solicitors, in which he recited, “Whereas I am about to return to South Australia and am desirous of appointing attorneys to act for me during my absence from England in the care and management of the said estate

and generally to act for me in the management and dealings with any property belonging to me during my absence from England," and then proceeded by the operative part of the instrument to convey such a power, but without any limitations as to