Downer v. Carpenter

The referee finds that the authority of Gormly, the agent, did not empower him to take the note so as to extend the time of payment, without the approval of the plaintiffs, and that the plaintiffs refused to approve. There is evidence sufficient to sustain these findings, and as the case does not show that all the evidence is set forth, we cannot review the findings.

The taking of the note, therefore, had no legal effect on the original demand. If the defendants had sustained any loss in consequence of the agent’s act, in excess of his authority, they might have been protected, upon the principle that where the agent’s act was within the general scope of his employment, but in excess thereof, the principal is responsible to a third person, who, having rightfully believed the agent was acting within his authority, would sustain a loss if the act were not considered the act of the principal. But this rule is applicable only where the question is, which of two innocent parties ought to bear a loss resulting from the agent’s misconduct.

The judgment must be affirmed.

Judgment affirmed.