Implied whenever he undertakes to act for another; and his

conduct, in so acting for or on behalf of another, may give rise

to an estoppel to deny the agency.*

Under the head of agency by agreement, we have then to

consider, (1) agency by contract, and (2) agency by agree-

ment falling short of contract.

1 Huffcut's Anson on Cont. p. 2. 2 p^^f^ §§ 50^ io3.

• Post, § 30 et seq. * Fvoberts i-. Ogilby, 9 Price, 269.

BY AGREEMENT. 25

1. Agency hy Contract.

В§ 11. Elements of contract.

A contract of agency (that is, a contract binding as between

the principal and agent) must possess all the essential ele-

ments of any enforceable contract, namely, true agreement,

consideration, competent parties, legality of object, and in

some cases a particular form.^ Most of these elements call

for no special discussion, as they differ in the contract of

agency in no essential particular from the like elements in

any contract known to the law. Some special points of diffi-

culty may be briefly noted.

В§ 12. Agreement, forms of.

The agreement between the principal and agent may take

any one of three forms : the offer of a promise for an act ;

the offer of an act for a promise ; the offer of a promise for a

promise.^

The first case is where the principal promises remuneration

If the agent will render a service. The promise may be ex-

press, or it may be an implied promise to pay what the ser-

vices are reasonably worth. An express agreement controls ; ^

In its absence an implied agreement may be inferred. Strictly

the promise would be offered for the act only when there was

a request that the act be done.^ And even in sucli a case the

circumstances may negative any implication that the services

were to be paid for.^ Such is the result where the services are

rendered by one member of a family at the request of another.^

The second case is where the agent offers a service which

the principal accepts. The acceptance may be by express

words, stating the terms, in which case the express promise

would control ; or it may be by conduct, in which case there

is an implied promise to pay what the services are reasonably

^ Huffcut's Anson on Cont. p. 12 et seq.

2 Huffcut's Anson on Cont. pp. 402-403.

8 Wallace v. Floyd, 29 Pa. St. 184.

* Van Arman r. Byington, 38 lU. 443.

6 Scott V. Maier, 56 Mich. 554.

6 Hall V. Finch, 29 Wis. 278.

26 FORMATION OF AGENCY

wurtli.^ The test is as to whether a reasonable man would

understand that the agent expected to be paid for his services.

It is because reasonable men understand that services rendered

by one member of a family for another are generally gratuitous

that an offer of an act by the one, accepted by the other, raises

no promise to pay.^ Of course if the offer of the act is not

communicated to the principal until after it is performed, and

he has therefore had no opportunity either to accept or reject

it, he would not be bound without a ratification.^

The third case is that of a promise for a promise, namely, an

express contract by which the agent promises to perform the

service, and the principal to pay for it. In this, and the other

cases, it is necessary as between employer and employee that

the agreement be real, that is, free from mistake, misrepre-

sentation, fraud, or duress. As between the employer and

third person, the authority, if exercised, binds the employer.

В§ 13. Consideration.

Consideration consists in a benefit to the promisor or a

detriment to the promisee. It is as necessary to tlve contract

of agency as to contracts generally. The only case calling

for special mention is where the services have been rendered

gratuitously, and there is a subsequent promise to pay for

them. Generally speaking there would be no consideration

for the subsequent promise, since, there being no prior legal

obligation, the case would be one of past consideration, which

will not support a promise.* Cases which seem to hold to the

contrary arc those in which there was cither a previous re-

quest, express or implied, or where the services were rendered

under such circumstances as not to be deemed gratuitous,

and the subsequent promise merely fixes expressly the value

of the services.^