Page:Harvard Law Review Volume 9.djvu/539

THE NATURE OF AGENCY. $11 5 Suppose I direct A to execute in my name a deed conveying to B certain lands which I own. The now familiar elements of the purpose of one and the execu- tion of it by another reappear, together with the determination of the relation between us by the communication of my purpose. As in the last case, what I receive from A is his service ; but there is a new factor here, due to the presence of B. 'Before B accepts such a deed as and for my deed, he is entitled to be certified of the right of A to act in my stead. The relation supposed between A and myself, in other words, must be communicated to B, and until so communicated A cannot effect my purpose. The rela- tion between A and myself is not completely established between us two alone, and is not therefore completely intelligible without the recognition of B's part in it. These five cases which have just been considered illustrate cer- tain forms of joint action which are very common, and of which many have been gathered under separate titles in the law. In stating them the facts have been reduced to the simplest and barest form, in order to bring out the elements common to the largest number of specific instances ; and in analyzing them the common elements of the intention have been stated as briefly as possible. The first illustration will be readily recognized as typical of the relation classified in the books under the title of trustee and cestui que trusty while the fourth and fifth are classified under the titles of master and servant and of principal and agent, respectively. These terms, however, are often misused in the sense that they have been applied to relations of very varying legal import. Thus, A in the first illustration has been called an agent, and in the fifth is very frequently called a trustee.^ The second and third illus- trations have not received specific names ; but they illustrate re- spectively the relation subsisting between a bank and its depositors, and between an owner and a contractor. In all of them it is to be 1 In Rowe v. Rand, in Ind. 206 (1887), a trustee was called an agent. So directors of a corporation are frequently called trustees, their position being in fact much more analogous to, if not indeed identical with, that of an agent as I have used the term. Cook on Stockholders, 648, and cases there cited in n. 2. See also Wilcox & Gibbs Sewing Machine Company Z'. Ewing, 141 U. S. 627 (1891), where one who had ob- tained from the company an exclusive right to sell their machines within a certain territory was called an agent to sell, although he bought the machines outright from the company and then sold them, keeping the purchase price and pocketing the profit or loss himself.