under the contract, fill the place of the employé. 24 Cal. 399.

CHAPTER V.

CONTRACT OF ACCOUNT.

SECTION 1. An account, in writing, examined and signed by the parties, will be deemed a stated account, notwithstanding it contains the ordinary preliminary clause that errors are excepted. 9 Cal. 360.

SEC. 2. The right to sue a county is not limited to cases of tort, malfeasance, etc., but is given in every case of account, after presentation to, and rejection by, the board of supervisors. 6 Cal. 256.

An action of assumpsit is the proper remedy on an account against a county which has been rejected by the board of supervisors. 6 Cal. 255.

SEC. 3. Where in a suit on an account stated, the only evidence was that of a witness who said defendant, on presentation of the account, admitted it to be correct and promised to pay it, and the court charged the jury, that if they believed the testimony of the witness, they must find for the plaintiff the amount claimed, and they so found: Held, that the instruction did not prejudice defendant, as but one verdict could have been rendered under the evidence. Terry vs. Sickles, 13 Cal. 427.

SEC. 4. To sustain an action on an account stated, it must be shown there was a demand in favor of plaintiff acceded to by defendant; and if defendant does not object to the account as presented, within a reasonable time, his silence will be an admission of its correctness. Terry vs. Sickles, 13 Cal. 427.

SEC. 5. In such action, evidence that the items of the account are overcharged is not admissible, the complaint being verified and the answer not averring fraud or mistake in the accounting. Terry vs. Sickles, 13 Cal. 427.

SEC. 6. Account with Memorandum.-An account stated, with a memorandum "payable in gold coin (United States) according to contract" and signed by the defendant, is ad

missible as written evidence of a contract on the part of the defendant to pay in gold coin. 33 Cal. 694.

SEC. 7. Where accounts bear upon their face the words "audited and approved" and "certified to be correct": Held, that this is language sufficient to create them instruments of writing within the meaning of the statute. 5 Cal. 57.

SEC. 8. Where an account has been stated by the plaintiff, charging interest both on the debt and the payment and rendered to the defendant, and no objections made thereto within a reasonable time, it is the same as an agreement that the interest should be computed accordingly. 3 Cal. 231.

SEC. 9. And when the party who seeks to go behind the stated account, goes into particulars and specifies the articles improperly charged or omitted, he is confined to those items, and the remainder of the account must stand. 3 Cal. 231.

SEC. 10. An account stated alters the name of the original indebtedness and constitutes a new promise or undertaking. 33 Cal. 694.

SEC. 11. Mutual accounts are made up of matters of setoff, where there is an existing debt on the one side which constitutes a credit on the other, or where there is an express or implied understanding that mutual debts shall be satisfied or set off, pro tanto, between the parties. 30 Cal. 127. SEC. 12. A payment, whether it be made in money or of an article of personal property of a stipulated value, made on an account and intended as a payment, and not as a setoff, pro tanto, does not make an account mutual. 30 Cal. 127.

SEC. 13. Where money is delivered by one party to the other, and credited on account by him who received it, it will be treated as intended as a payment, unless it is shown to have been delivered as a loan, but not so with personal property, even though a value be affixed thereto. 30 Cal. 127.

SEC. 14. When Property Received and Credited makes Account Mutual.-The defendants, being indebted to the plaintiffs on account, delivered them an article of personal property, for which the latter gave the former credit at a specified valuation: Held, that thereby the account consisted of reciprocal demands between them. 30 Cal. 126.

SEC. 15. Striking of a Balance on Accounts, where there are

Demands on each Side.-The striking of a balance converts the set-off into a payment, and from that time the statute of limitations commences running. 30 Cal. 126.

SEC. 16. Until a balance is struck a mutual account is open and current. 30 Cal. 126.

SEC. 17. Where one party is selling the other goods from time to time, and charging the same, and the other gives him money which he credits on the account as a payment, this credit does not make the account a mutual one within the meaning of the eighteenth section of the statute of limitations. 35 Cal. 122.

SECTION 1. An agent may make contracts which will be equally binding on his principal as if made by the principal himself, but it is necessary that the principal has ability himself to do all acts which he confers upon another to do. An agent is therefore defined to be one employed by any person, competent to do any act for himself, to do it for him. 1 Story's Agency, Sec. 6.

SEC. 2. The employer is called the principal and the employment an agency. Any person who is not actually disabled by weakness of mind or want of understanding, may be an agent. What would constitute a legal disability to contract for himself, will not incapacitate him from becoming an agent thus, infants, slaves or married women, may act as agents. 1 Story's Agency, Sec. 7.

SEC. 3. To constitute a valid agency, where property is its subject, it is not essential that the principal should hold

the legal or equitable title or more than a naked claim of title; it may be created for the acquisition of title, either legal or equitable, or for the protection of an asserted title. Hardenbergh vs. Bacon, 33 Cal. 356.

SEC. 4. The authority of an agent may be conferred verbally, and it may be implied from the acts of the parties. An implied agency, is where one suffers another to do acts in his name, to buy goods or sell them, to sign his name to notes or checks; he is presumed to have given him an authority to do so, and his acts will bind him. Where, however, some act is required to be executed by a sealed instrument, the authority must be given, in writing, under seal. Story on Agency, 49.

SEC. 5. When the authority to the agent is in writing, the written instructions must be strictly followed.

SEC. 6. A special agency, is an agency to do a special or single act, as to sell my horse, with or without warranty, or to purchase a horse for me. If a special agent exceed his authority, the principal is not bound by his acts, unless the principal has held him out as his authorized agent for other purposes. The question for the justice in such cases is, what were the acts of the agent and principal in other transactions of a similar kind, or whether their business relations were such as to justify a man of reasonable prudence to infer the power of the agent to act. One who deals with a special agent is bound to acquaint himself with the extent of his authority. Story on Agency, Sec. 126.

SEC. 7. A general agent, is one who has a general authority. His power is not confined to particular acts, but extends to all acts which the principal himself, if present, might do; and the principal is bound by all his acts within the scope of his authority. Story on Agency, Sec. 126. SEC. 8. The principal is bound by all the representations of his agent, in any trade or transaction, which his agent may make. As, when the agent in selling a horse, represents him as sound or a safe horse in harness; if the horse prove otherwise, the principal is responsible for the damages. Therefore, the representations, admissions and concealments, of an agent made at the time, and constituting a part of the transaction, and being an inducement to the con

tract, are binding upon the principal, though if made at another time, and without forming a part of the transaction, are not binding. 6 Hill's Reports, 336.

SEC. 9. An agent cannot delegate his authority to another, for it is a maxim of law, that delegated power cannot be transferred by the delegate. He must transact the business intrusted to him in the name of his principal, or the contract will not bind the principal, but will become binding upon himself. Cowen's Treatise, Sec. 160.

SEC. 10. An agent, whether he be a mercantile agent, or a mere domestic servant, may, in general, be appointed by mere words (see Stackpole vs. Arnold, 11 Mass. 27), and writing is not necessary to empower him to act, even for the purposes described in the twelfth and thirteenth sections of the statute of frauds (see Hittell, Secs. 3156, 3157), viz: to charge a person to answer for the debt of another, or upon an agreement in consideration of marriage, or upon a contract or sale of premises or an interest therein, or upon a contract not to be performed within one year; it being held, that although these contracts are to be in writing and signed, yet an agent may sign them without having a written authority. Coles vs. Trecotlick, 9 Ves. 234, 250. Nor is a written appointment necessary to authorize an agent to sign an agreement for the purchase of goods, under the thirteenth section of the act. Webb vs. Browning, 14 Mo. 354; Story on Agency, 51, 52; Dunlop's Paley's Agency, 159, 160.

SEC. 11. An agent for the sale of goods sometimes acts under a del credere commission; that is, for a higher reward than is usually given, he becomes responsible to his principal for the solvency of the vendee; or, .in other words, he guarantees, in every case of sale, the due payment of the price of the goods sold. See Morris vs. Cleasby, 4, M. & S. 574.

SEC. 12. The undertaking of the del credere agent, is an original, absolute and independent, engagement, entirely between the principal and the agent, before the sale and separate from it, and of course before any debt has accrued from the purchaser. It does not affect the ordinary relations between the principal or the agent and the purchaser. See Swan vs. Nesmith, 7 Pick. 220; Leverick vs. Meigs, 1 Cowen,