If he had acted immediately instead of mediately. In such a

case, we should be concerned only with the result, and not

with the means through which it was accomplished. But the

doctrine is much more sweeping in its application. In the

employment of a human agency, the constituent must take

account, not only of his own will, but also of the will of the

representative. This second will may prove either incom-

petent, or careless, or perverse, and from this incompetence,

carelessness, or perversity may flow consequences never in-

tended by the constituent, but for which the law holds him

accountable. Thus it follows that a man may be obligated

by the act of a representative which he has not only not

authorized, but which he has in terms forbidden. The problem

therefore resolves itself into this, when and why is a man held

liable for acts of his representative, neither commanded nor

ratified, acts in excess of any actual authority conferred ?

It has been contended that we must seek the basis of

liability in such cases in the fiction of identity.^ It has, on

the other hand, been contended that this fiction plays a small

part historically in the development of the law of representa-

tive liability, and that the basis of the liability is the voluntary

act of the employer in setting the representative in motion,

or that one must answer, within reasonable limits, for an

instrumentality operating for his benefit.^ Still others would

contend that the whole matter is determined mainly by the

1 O. W. Holmes, Jr., 4 Haw. Law Rev. 345, and 5 Ibid. 1.

2 J. H. AVigmore, 7 Harv. Law Rev. 383.

Introduction". 15

practical consideration that the employer is usually better

able to pay than the representative.'

Much confusion has been occasioned by the failure to dis-

tinguish between liability for acts creating primary obligations

and giving rise to primary rights, and liability for acts violat-

ing primary obligations and giving rise to secondary obliga-

tions and secondary or remedial rights. In the first case the

employer has authorized a representative to make promises

or representations and to induce third parties to act upon

them. The sole legal question then is, had the third person,

in acting upon the representative's statements, reasonable

grounds for believing that the representative was authorized

to make them ? In other words, had the agent apparent

authority to do what he did do ? If so, then the employer is

estopped to deny that that which he made to appear to be

true is not true, since a third person has acted upon the repre-

sentation of the principal as to the agent's authority .^ This

is a solid ground of liability which dispenses with all fictions

and all slippery considerations of the limits within which one

man ought to be held liable for the perversity of his instru-

mentalities. The earliest authorities which suggest this

ground of liability are in cases of deceit where, as in contract,

the essence of the employer's liability consists in the fact that

he has held out his agent as having authority to make repre-

sentations, and the third party has, relying on this apparent

authority and the agent's representations, changed his legal

position.^ And in contract cases this ground is distinctly

taken.*

1 2 Pollock and Maitland, Hist, of Eng. Law, 530-532. See also 7

Harv. Law Rev. 107.

2 Post, §§ 51, 52, 102, 108.

8 Southerne v. Howe, 2 Rolle's Rep. 5, 26 (1618), in the argument of

counsel; Hern v. Nichols, 1 Salk. 289 (1708).

* Hazard v. Treadwell, 1 Stra. 506 (1768) ; Pickering v. Busk, 15 East,

38 (1812) ; Whitehead v. Tuckett, 15 East, 400 (1812). In Pickering y.

Busk, it is said, " This case . . . proceeds on the principle, that the plain-

tiff having given Swallow an [implied] authority to sell, he is not at lib-

erty afterwards, when there has been a sale, to deny the authority." The