Hamlyn v. Houston & Co.(1903) 1 K.B. 81

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COLLINS, M.R. – The decision of the learned judge in this case was, in my opinion, right.
The defendant Strong appears to have been a sleeping partner in a firm consisting of himself
and the defendant Houston, or, at any rate, he delegated the transaction of the whole of the
firm’s business to Houston. The jury have found that it was in the course of the business of
the firm to obtain by legitimate means information in regard to contracts made or tendered for
with brewers and with buyers of grains by competing firm What Houston did for the purpose of
obtaining information which, according to the finding of the jury, it was within the scope of
his authority to obtain by legitimate means, was to bribe the clerk of the plaintiff, who was a
competitor in business, to give him access to documents belonging to the plaintiff; indeed, it
would appear that he actually had possession of one of the plaintiff’s books for a time. It was
argued for the defendants that this action by Houston was so completely outside the scope of
the authority given to him that the defendants’ firm cannot be responsible for it in an action
brought against them by the plaintiff for damages thereby occasioned to him. The defendants’
counsel have endeavoured to frame a definition with regard to what is and what is not within
the scope of an agent’s authority so as to render his principal liable. They suggested that,
where the end sought to be obtained by the agent is in itself illegal, and the means employed
to accomplish it are illegal, it cannot be said that the action of the agent is within the scope of
the general authority given to him to conduct a business, but that it is otherwise where the end
and the means employed are legal, or where the end is legal or illegal. Trying this case by the
test so suggested, was the end to be obtained here in itself illegal? The defendants’ counsel
say that it was, but it does not appear to me to be so. According to the finding of the jury it
was part of the defendants’ business to obtain information as to the contracts and tenders of
competitors in business, and, the more secret these matters were, the greater was the value of
that information to the defendants’ firm. The jury have in effect found that it was within the
scope of the authority given to Houston to obtain such information by legitimate means, and I
do not see that there was anything illegal in so obtaining it. It is too well established by the
authorities to be now disputed that a principal may be liable for the fraud or other illegal act
committed by his agent within the general scope of the authority given to him, and even the
fact that the act of the agent is criminal does not necessarily take it out of the scope of his
authority. If the act done by the agent is within the general scope of the authority given to
him, it matters not for the present purpose that it was directly contrary to the instructions of
his principal, or even that it may have been an offence against society itself. The test is that
which is applied to this case by the learned judge. Was it within the scope of the authority
given to Houston to obtain this information by legitimate means? If so, it was within the
scope of his authority for the present purpose to obtain it by illegitimate means, and the
defendants are liable. That is the law as expressed in the Partnership Act, 1890, and as laid
down by decisions previous to that Act, in which it has been held that a principal is liable for
the fraud or other wrongful act of his agent if committed within the scope of his employment.

This doctrine does not appear to rest upon the notion of the principal’s holding out the agent
as having authority. The grounds upon which it seems to rest, as explained in cases such as
Barwick v. English Joint Stock Bank [(1867) L.R. 2 Ex. 259], appear to be that the principal
is the person who has selected the agent, and must therefore be taken to have had better means
of knowing what sort of a person he was than those with whom the agent deals on behalf of
his principal; and that, the principal having delegated the performance of a certain class of
acts to the agent, it is not unjust that he, being the person who ahs appointed the agent, and
who will have the benefit of his efforts if successful, should bear the risk of his exceeding his
authority in matters incidental to the doing of the acts the performance of which has been
delegated to him. For these reasons I think this application must be dismissed.
METHEW, J. – I agree. A little confusion has been introduced into this case by the
reference made to the criminal law. It is not suggested that Houston’s partner would be liable
determinally; the question is only one of civil liability. The rule of law applicable is perfectly
plain. The question is whether the action of Houston was within the scope of his authority for
the purpose of making the firm liable. I think the jury were entirely warranted in finding that
Houston was authorized to obtain information as to the contracts and tenders made by
competing firms by legitimate means. He did obtain such information by illegitimate means.
It being within the scope of his authority to procure the information, it is immaterial for the
present purpose whether the acts which he committed in order to procure it were fraudulent or
even criminal or not, and his partner is responsible for those acts.