DEALERS AND PRIVATE PERSONS AND OTHERS 415 



as a general agent, and, in the absence of express notice to a purchaser, 

 would have power to do all that is generally done in carrying on such 

 a trade. So the keeper of a livery stable is liable to an action for breach 

 of warranty upon a warranty given by his servant, though he had 

 expressly given such servant instructions not to warrant, for the public 

 is not sujjposed to know of any private arrangement between jirincipal 

 and agent, where the latter is acting within the general scope of his 

 authority. 



This last reservation is important, as where an agent does any act, 

 which does not form a part of his duties or employment as an agent, 

 his principal is not bound. {Fenn v. Hai-rison, 3 T,R. 757, 1790; 

 Haivard v. Sheward, L.R. C.P. 148, 1866.) So too the servant of 

 a private person, who is entrusted with the sale of a horse at a fair or 

 other public mart, would appear to have power to warrant and bind his 

 principal by such warranty, as it is usual, in the course of business, for 

 the person in possession to have such power. [Brady v. Todd, 9 C.B., 

 N.S. 592, 1861; Alexander v. Gibson, 2 Campb. 555, 1811; Brooks v. 

 Hassal, 49 L.T. 509, 1883.) Except, however, in such a case, the 

 servant of a private person, who has been instructed to sell and deliver 

 a horse on a particular occasion, is not thereby authorized to give a 

 warranty; and if a buyer takes a warranty from such servant, he will 

 have to prove, in order to bind the principal, that the servant was 

 authorized to give such warranty. (Brady v. Todd, vide supra.) It sliould 

 be noticed that in both the cases instanced above, where the principal 

 is bound by the act of the agent, he is so bound by general custom or 

 usage — in the case of the dealer, because the agent is a general agent, 

 who, in conducting his principal's business, has a generally understood 

 power to grant warranties; in the case of the private owner, because 

 it is customary for a person in possession of a horse at a fair or public 

 mart, and entrusted with the sale of such horse, to possess all the powers 

 of the owner, including that of warranty. He would not in this case 

 be a general agent, but rather a special agent with general powers. 

 In no other case, however, would such a presumption be allowed as 

 against a private owner, as it is no part of his business to sell horses, 

 nor can his servant be assumed to have the powers necessary in the 

 case of a horse-dealer for the conduct of his business. 



Where an auctioneer is instructed to sell, he may be the agent of both 

 buyer and seller for the purpose of signing the memorandum contemjilated 

 by the statute of frauds (29 Car. 2 C. 3). 



Whether he is so or not, however, depends somewhat on circumstances. 

 Where the sale takes place at a private place, he is the agent of the seller 



