40

be presumed that the legislature intended that a nuisance should be created, unless such result is the necessary and probably consequence of an exercise of the power granted. A general grant of powers does not justify the creation of a nuisance, if the sewerage system can be constructed without creating a one. Even authority to change, widen and deepen a particular brook, and use it for drainage purposes, does not justify the creation of a nuisance in the stream into which the brook flows, if it can be avoided by adopt-❘ ing reasonable methods for purifying the sewage.41 Where the statute expressly authorizes the particular arrangement of sewers, strict compliance therewith is a protection from indictment on behalf of the public for public nuisance.42 But it has been doubted whether the legislature has the power to authorize either a municipality, or a private or quasi-public corporation, to create or maintain a nuisance that amounts to a taking of private property without compensation therefor, so as to bar an action by the parties specially injured. A statute is constitutional, however, which legalizes what would otherwise be a nuisance, provided the injury inflicted on private rights is not excessive or unreasonable;45 and in such cases strict compliance with the statute is a protection even against a private action.46 Injunction is the proper and only adequate remedy in cases of pollution of streams by city sewerage, when

44

48

40 Edmondson v. City of Moberly (Mo.), 11 S. W. Rep. 990; Haskell v. New Bedford, 108 Mass. 208, 215; Moody v. Village of Saratoga Springs, 45 N. Y. S. 365; Siefert v. City of Brooklyn, 101 N. Y. 136; Morton v. New York, 140 N. Y. 207; Bacon v. City of Boston (Mass.), 28 N. E. Rep. 9; Pine City v. Munch (Minn.), 44 N. W. Rep. 197; Atty.-Gen. v. Leeds, L. R. 5 Chan. App. 583, 594; Atty. Gen. v. Colney Hatch Lunatic Asylum, L. R. 4 Chan. App. 146; Atty.-Gen. v. Hackney Local Board, L. R. 20 Eq. 626, 631.

41 Morse v. City of Worcester, 139 Mass. 389, 391. 42 16 Am. & Eng. Enc. of Law, 1000.

43 Kobbe v. Village of New Brighton, 45 N. Y. S. 777; Siefert v. City of Brooklyn, 101 N. Y. 136.

44 Balt. & Pot. Ry. Co. v. Fifth Baptist Church; 108 U. S. 317; Penn. Ry. Co. v. Angel (N. J.), 7 Atl. Rep. 432; Taylor v. Ry. (W. Va.), 10 S. E. Rep. 29; Bohan v. Port Jervis Gas Light Co., 122 N. Y. 18, 29; McAndrews v. Collerd, 42 N. J. L. 189.

45 Sawyer v. Davis, 136 Mass. 239, 243.

46 16 Am. & Eng. Enc. of Law, 1003. But it has been held that where a change of circumstances since the statute was passed, makes compliance therewith necessarily result in a nuisance, when it would not have so resulted at the time of passage, it will not be presumed that the legislature intended a nuisance to be created. Reg. v. Bradford Navigation Co., 13 W. Rep. 892.

50

the injury is a continuing one that would lead to multiplicity of actions at law, and when irreparable damage is caused that is difficult or impossible of exact or adequate pecuniary recompense.47 Where the nuisance arising from the pollution of a stream operates to destroy health and impair the comfortable enjoyment of property, the damage is held to be irreparable, and an action at law not an adequate remedy.48 And regard will be had not merely to the comfort or convenience of the occupier of the estate, but also to the effect of the nuisance upon the value of the estate and the prospect of advantageously dealing with it.49 Injunction has been frequently employed in cases of pollution of streams by city sewage." In order to warrant the issuance of an injunction in such a case, the injury to the parties complaining must be not merely temporary or trivial, but permanent and serious. 51 It must be a continuous injury, not a mere occasional injury, which may never be repeated. Thus, a fisherman on Lake Michigan, whose nets were destroyed by the sewage of a city, has no right to enjoin the city from emptying its sewers therein, when his fishing operations extend over an area of four hundred square miles, and the injury may never occur again.5 There are cases where a city has been enjoined from erecting its sewerage system, in advance of actual use proving it to be a nuisance; but that has been only where it was clear from the circumstances that a nuisance would result.53 The determination of plaintiff's rights, in an action at law for damages, is not a necessary condition precedent.54 The general rule, however, is that a very strong case must be made out to justify equitable interference in the case of a merely anticipated nuisance, and that usually no injunction will

47 Atty. Gen. v. Birmingham, 4 K. & J. 528, 540; Indianapolis Water Co. v. American Strawboard Co., 53 Fed. Rep. 970, 975, 57 Fed. Rep. 1000, 1004.

48 See cases in note 9, and also Holsman v. Bleaching Co., 14 N. J. Eq. 335, 343; Woodyear v. Schaefer, 57 Md. 1, 12.

49 Goldsmid v. Turnbridge Wells, L. R. 1 Chan. App. 349, 355.

50 See cases in notes 9-16.

51 Goldsmid v. Turnbridge Wells, L. R. 1 Chan. App. 349, 355; Atty.-Gen. v. Gee, L. R. 10 Eq. 131, 137; Mor. gan v. City of Binghampton, 102 N. Y. 500.

52 Kuehn v. City of Milwaukee, 83 Wis. 583.

53 Village of Dwight v. Hayes (Ill.), 37 N. E. Rep. 218, 220.

54 Village of Dwight v. Hayes, supra; Dierks v. Comm. of Highways (Ill.), 31 N. E. Rep. 496, 501; Beach on Injunctions, Vol. II, § 1064.

57

issue until actual demonstration has shown a nuisance to exist." Mere apprehension that such will be the case in two or three years, with increased use of the sewer, is not sufficient;56 particularly when the distance of the party complaining from the outfall of the sewer, or the possible use of purifying arrangements for the sewage, 58 make it doubtful whether any injury will occur. But if some degree of existing nuisance be shown, the fact that it is likely to continue and to increase with the growth of the city, may properly be considered.59 The sewerage system of a large city, involving the health of its inhabitants and erected at a large expense, will not be suppressed for any trivial or fanciful reason," 60 but where it is clearly shown that a nuisance exists, neither the expense61 to the city in constructing its sewers, nor the fact that its many inhabitants will be injured by their suppression,62 is a valid defense; nor will the court concern itself as to how, or at what expense, the city is to abate the nuisance, or drain itself without sewers.63 as time may be needed to change the method of drainage, the court will listen to all proper suggestions on that head, and shape the final decree so as to give the city time to make the change.6 It is immaterial that the stream is already somewhat polluted, or that others, however many, contribute to the pollution,65

But

55 Atty. Gen. v. Mayor of Kingston, 13 W. Rep. 888; Newark Aqueduct Co. v. City of Passaic (N. J.), 18 Atl. Rep. 106, 110; Morgan v. City of Binghampton, suprą; Robb v. Village of LaGrange |(Ill.), 42 N. E. Rep. 77; Atty. Gen. av. Manchester, 2 Chan. Div. (1893) 87.

56 Morgan v. City of Binghampton, supra.

57 Newark Aqueduct Board v. City of Passaic (N. J.), 18 Atl. Rep. 106, 112.

38 Atty. Gen. v. Mayor, etc. of Kingston, 13 W. Rep. $88, 892; Fletcher v. Bealey, L. R. 28 Chan. Div. 688. 5 Goldsmid v. Turnbridge Wells, L. R. 1 Chan. App. 349, 354.

60 Note 48, and cases supra.

61 Atty.-Gen. v. Leeds, L. R. 5 Chan. App. 583, 591; Susquehanna Fertilizer Co. v. Malone, 73 Md. 268, 282. 62 Atty. Gen. v. Birmingham, 4 K. & J. 528, 539; Atty. Gen. v. Colney-Hatch Lunatic Asylum, L. R. 4 Chan. App. 146, 155.

63 Atty. Gen. v. Colney-Hitch Lunatic Asylum, L. R. 4 Chan. App. 157, 158; Atty. Gen. v. Birmingham, 4 K. & J. 543. But see City of Richmond v. Tent (Ind.), 48 N. E. Rep. 610, 616.

64 Boston Rolling Mills v. City of Cambridge, 117 Mass. 396. 401; Atty.-Gen. v. Colney Hatch Lunatic Asylum, L. R. 4 Chan. App. 163.

Newark Aqueduct Board v. City of Passaic (N. J.), 18 Atl. Rep. 106, 112; Indianapolis Water Co. v. American Strawboard Co., 57 Fed. Rep. 1000, 1003; Townsend v. Bell, 17 N. Y. S. 210; Barrett v. Green

or that the new sewers built, or proposed to be built, merely increase the already existing pollution,66 or that the best and most approved appliances are used,67 or that the sewerage of the city by itself would not cause a nuisance,68 or that, being purified, it only becomes a nuisance by coming in contact with other substances unlawfully deposited in the river by third parties.69 In most jurisdictions it is, in the proper case, not only permissible, but usual, to join a demand for damages for past injury to the plea for an injunction against the further continuance of the nui

Special Damage.-Where, as in the case of the pollution of public waterways, the act of the city amounts to a public nuisance, no private citizen is entitled to bring an action at law, or suit in equity, unless he has sustained special damage, differing not only in degree, but in character, from that suffered by the general public. The best and most comprehensive statement of what constitutes special damage and what does not is that of Bigelow, C. J., in Wesson v. Iron Co., and particular attention is called thereto. In part

he says: "The real distinction would seem to be this: That when the wrongful act is of itself a disturbance or obstruction only to the exercise of a common and public right, the sole remedy is by public prosecution, unless special damage is caused to individuals. In such case the act of itself does no wrong to individuals distinct from that done to the whole community. But when the alleged nuisance would constitute a private wrong by injuring property or health, or creating personal inconvenience and annoyance, for which an action might be maintained in favor of a

wood Cemetery Assn. (Ill.), 42 N. E. Rep. 891; Atty.. Gen. v. Leeds, L. R. 5 Chan. App. 595; Atty.-Gen. v. Colney Hatch Lunatic Asylum, L. R. 4 Chan. App. 155.

66 Atty. Gen. v. Leeds, 18 W. Rep. 517, 518; Goldsmid v. Turnbridge Wells, L. R. 1. Eq. 161, L. R. 1 Chan. App. 349; Atty. Gen. v. Acton Local Board, L. R. 22 Chan. Div. 221; Boston Rolling Mills v. City of Cambridge, 117 Mass. 396.

67 Notes 9 and 19. And see Indianapolis Water Co. v. American Strawboard Co., 57 Fed. Rep. 1000, 1004; Susquehanna Fertilizer Co. v. Malone, 73 Md. 268, 276. 68 Morgan v. City of Danbury (Conn.), 35 Atl. Rep. 499; Blair v. Deakin, 57 Law Times, 522; Thorpe v. Brumfit, L. R. 8 Chan. App. 650.

69 Morgan v. City of Danbury, supra.

70 Cases in note 9. See also Cedar Lake Hotel Co. v. Cedar Creek Hydraulic Co., 79 Wis. 297, 302; Beach on Injunctions, § 10.

71 13 Allen, 95.

person injured, it is none the less actionable, because the wrong is committed in a manner and under circumstances which would render the guilty party liable to indictment for a common nuisance." Thus, a fisherman who enjoys, with all others, the right to fish in Lake Michigan, has no right to enjoin a city from emptying its sewers therein;72 nor can a water company, having no real riparian rights, but merely the right, with all others, to draw water, enjoin a city from draining into a river where the tide ebbs and flows. 73 In each of these cases, the interference was with merely a public right, common to all, and the only remedy a public one. There was no special damage, on precisely the ground that it has often been held that obstructions to navigation, or obstructions in highways, furnish no cause of action to parties who merely have the right, with all others, to pass along. But the injury to the property and health of the riparian owner, arising from the pollution of the water of the river adjoining his land, and the stenches and smells arising therefrom, is regarded as a special and peculiar injury, not merged in the common nuisance ;74 and this although others similarly situated have a like cause of action for their own special damage.75 And it is no bar to the action that an indictment on behalf of the public could be had for the suppression of the public nuisance.76 Where special

72 Kuehn v. City of Milwaukee, 83 Wis. 583.

73 Newark Aqueduct Board v. City of Passaic (N. J.), 18 Atl. Rep. 106. To the point that riparian rights are necessary, see also Stockport Water Co. v. Potter, 3 H. & C. 300, 319, 326; Laing v. Whaley, 3 H. & N. 675. In England, it has been held that the grantee of the exclusive right to fish in a certain part of a river may mention an action for its pollution. Fitzgerald v. Firbank, L. R. 2 Chan. Div. (1897) 96. Such a case could hardly arise as to the public waterways of this country.

74 Lind v. City of San Luis Obispo (Cal.), 42 Pac. Rep. 437; Edmondson v. City of Moberly (Mo.), 11 S. W. Rep. 990; City of Jacksonville v. Doan (Ill.), 33 N. E. Rep. 878, 880; Chapman v. City of Rochester (N. Y.), 18 N. E. Rep. 88; Haskell v. New Bedford, 108 Mass. 208, 215; Brayton v. Fall River, 113 Mass. 218, 227; Shoen v. Kansas City, 65 Mo. App. 134; Deleplaine v. C. & N. W. Ry. Co., 42 Wis. 214, 230.

75 Lind v. City of San Luis Obispo, supra; Shoen v. Kansas City, supra; Wesson v. Iron Co., 13 Allen, 95; Morris v. Graham (Wash.), 47 Pac. Rep. 752; Spokane Mill Co. v. Post, 50 Fed. Rep. 429, 432; Lansing v. Smith, 4 Wend. 9; Farmers' Mfg. Co. v. Ry. Co., 117 N. Car. 579.

76 Haskell v. New Bedford, supra; Wesson v. Iron Co., supra; Barrett v. Greenwood Cemetery Assn. (Ill.), 42 N. E. Rep. 891; Hart v. Board of Chosen

damage is shown, the motive of the party suing in bringing the suit is immaterial."

Estoppel and Other Defenses.-As already indicated, equity will not, except in the clearest cases, enjoin a city from erecting its sewerage system, preferring rather to wait until it has been demonstrated by actual use that a nuisance results from its operation. Such being the case, it is clear that the property owner specially injured is not estopped from enjoining such works as a nuisance by the mere fact that he entered no objection to their erection provided he did nothing to encourage it;78 as, until the contrary is shown, he has a right to assume that no nuisance will result.79 This is true, although the city goes to great expense in building the sewers to drain a large city. Unlike a private nuisance, no prescriptive right can be acquired to maintain a public nuisance, so as to bar an action by the party specially injured. Unreasonable delay in bringing suit is, of course, a bar. 83 But sixteen years delay has been held no bar. Delay may be justified by reliance upon the representations of the city that the sewers would soon cease to give trouble, and delay is immaterial where the sewage of the city had not theretofore caused

81

85

84

80

Freeholders (N. J.), 29 Atl. Rep. 490; Peck v. Elder. 3 Sandf. (N. Y.) 126.

77 Townsend v. Bell, 17 N. Y. S. 210; Lippincott v. Lasher (N. J.), 14 Atl. Rep. 103.

78 Chapman v. City of Rochester (N. Y.), 18 N. E Rep. 88; Village of Dwight v. Hayes (Ill.), 37 N. E Rep. 218; Matthews v. Gas Co. (Minn.), 65 N. W. Rep 947; Indianapolis Water Co. v. American Strawboard Co., 57 Fed. Rep. 1000, 1001. But even express per mission to build, on the strength of which large sums of money are expended, works no estoppel in States where such parol license relating to lands is revocable after being acted on. Village of Dwight v. Hayes, supra. Nor would any permission justify exceeding the license given. Loughran v. City of Des Moines (Iowa), 31 N. W. Rep. 172; N. Y. Cent. Ry. v. City of Rochester, 127 N. Y. 591.

79 Atty. Gen. v. Leeds, L. R. 5 Chan. App. 583, 594. 80 Id. and cases in note 58. But see Harley v. Merrill Brick Co. (Iowa), 48 N. W. Rep. 1000.

81 16 Am. & Eng. Enc. of Law, 996. But the prescriptive right to pollute a private waterway does not justify increasing the pollution. Middlesex Co. v. City of Lowell, 149 Mass. 509; Goldsmid v. Turnbridge Wells, L. R. 1 Chan. App. 349.

82 Meiners v. Brewing Co., 78 Wis. 364; City of Bloomington v. Costello, 65 Ill. App. 407; Bowen v. Wendt (Cal.), 37 Pac. Rep. 149; Wood on Nuisances. § 727.

83 Atty. Gen. v. Leeds, supra; Wood on Nuisances, § 804.

84 Atty. Gen. v. Leeds, supra.

85 Atty. Gen. v. Birmingham, 4 K. & J. 528, 544.

89

a nuisance.86 The fact that the nuisance existed before plaintiff acquired his property is no bar. 87 One has no right of action for pollution of a stream when he himself contributes to the pollution. 88 But the fact that a part of his damage is due to a separate and independent nuisance maintained by him is not a bar, nor is he barred by his failure to take precautions against the nuisance, the effects of which he could have avoided at slight expense.90 Sometimes the plaintiff's private drain is connected with the sewer that causes the damage. Where the connection is made lawfully and under a permit from the city, the city is liable for damages due to negligence, but perhaps not otherwise, unless the city requires such connection to be made.92 But it has been held that a party whose private drain is connected with the city sewer that causes the nuisance has a right to sue for an injunction against the city.93 But there can be no cause of action if the connection is unlawful, although a formal permit from the city may not always be necessary. 95 It is no defense that the nuisance is caused by third parties connecting their drains with the city sewer, nor that the sewer is partly upon private property, and could not be abated without trespass, 97 nor that the city has no jurisdiction over part of the sewer, nor that it was paid for by assessments on the adjoining lot owners.99

96

98

Parties. Two or more parties, each suffer

86 Goldsmid v. Turnbridge Wells, L. R. 1 Chan. App. 349; Boston Rolling Mills v. City of Cambridge, 117 Mass. 396.

$7 16 Am. & Eng. Enc. of Law, £34.

88 Ferguson v. Firmenich Mfg. Co. (Iowa), 42 N. W. Rep. 448.

89 Randolf v. Bloomfield (Iowa), 41 N. W. Rep. 562. 90 Satterfield v. Rowan (Ga.), 9 S. E. Rep. 677; Paddock v. Somes (Mo.), 14 S. W. Rep. 746; Tenn. Coal Co. v. Hamilton (Ala.), 14 South. Rep. 167.

91 City of Fort Wayne v. Coombs, 107 Ind. 75, 83; Daggett v. City of Cohoes, 7 N. Y. S. 882; Defer v. City of Detroit (Mich.), 34 N. W. Rep. 680; Livingstone v. City of Taunton (Mass.), 29 N. E. Rep 635. 92 Buckley v. City of New Bedford, 155 Mass. 64, 68. 93 Bolton v. Village of New Rochelle, 32 N. Y. S. 442. 94 Breuck v. City of Holyoke, 167 Mass. 258. 95 Sheridan v. City of Salem, 148 Mass. 196.

Stoddard v. Village of Saratoga Springs, 4 N. Y. S. 745, 127 N. Y. 261; Demby v. City of Kingston, 14 N. Y. S. 601, 133 N. Y. 538.

97 Demby v. City of Kingston, supra; Stoddard v. Village of Saratoga Springs, supra; Netzer v. City of Crookstown (Minn.), 61 N. W. Rep. 21.

98 Stoddard v. Village of Saratoga Springs, 4 N. Y. S.753.

99 Stoddard v. Village of Saratoga Springs, supra.

ing special damage from the same nuisance, may unite as plaintiffs in a suit for injunction, although they are not joint owners of the property injured by the nuisance.100 But the rule is otherwise in actions at law for

damages. 101 In the case of tenants in common, any one or more of them may sue for an injunction. 102 When the nuisance is the result of the joint act of two or more parties, they may be sued together, or either may he sued separately, for the entire damage. 103 But where it is the result of two or more parties acting separately, each is liable only pro rata for the damage caused by his own act.104 In such case they may be joined as defendants in a suit in equity for an injunction,105 or enjoined separately,106 but they cannot be joined as defendants in an action at law for damages. 107 Where, however, an injunction, as well as damages, is asked, the court, in a proper case, will grant the injunction, provided the plaintiff withdraws his demand for damages, 108 W. W. ALLEN.

100 Bushnell v. Robeson (Iowa), 17 N. W. Rep. 888, 890; Town of Sullivan v. Phillips (Ind.), 11 N. E. Rep. 300; First Nat. Bank v. Sarlls (Ind.), 28 N. E. Rep. 435; Peck v. Elder, 3 Sandf. (N. Y.) 126; Robinson v. Baugh, 31 Mich. 290; Beach on Injunctions, §§ 362, 363, 364.

101 Hellams v. Switzer, 24 S. Car. 39.

102 Mitchell v. Thorne, 134 N. Y. 536; Murray v. Hay, 1 Barb. Ch. 59; Lytle Water Co. v. Perdew, 65 Cal. 447. 103 Sloggy v. Dilworth (Minn.), 36 N. W. Rep. 451, and cases cited; Grogan v. Pope Co. (Mo.), 3 W. Rep. 233.

104 Chipman v. Palmer, 77 N. Y. 51; Martinowsky v. City of Hannibal, 35 Mo. App. 70.

105 Lockwood Co. v. Lawrence, 77 Me. 297, collecting

cases.

106 Woodyear v. Schaefer, 57. Md. 1. Although the act of neither alone would amount to a nuisance. Lambton v. Mellish, 3 Chan. Div. (1894) 163.

107 Lockwood v. Lawrence, supra; Shipman v. Palmer, supra.

108 Blaisdell v. Stephens, 14 Nev. 17; Miller v. Highland Ditch Co., 87 Cal. 430. But see Sadler v. G. W. Ry. Co., 2 Q. B. (1895) 688. On this general subject, see City of Valparaiso v. Moffit (Ind.), 39 N. E. Red. 909.

AGENCY-DEATH OF PRINCIPAL.

DEWEESE v. MUFF.

Supreme Court of Nebraska, December 8, 1898.

When in good faith one deals with an agent within his apparent authority, in ignorance of the death of the principal, the estate of the principal will be bound in case the act to be done by the agent is not required to be performed in the name of the principal.

NORVAL, J.: On July 1, 1892, Catherine Muff executed a note, whereby she promised to pay to

the order of James E. Jones the sum of $2,000 on September 1st of the same year, with interest thereon at 7 per cent. per annum. The payee resided in England, but the note was delivered to him personally at Crete, Neb., at which time he stated in substance, to Mrs. Muff, in the presence of one J. H. Gruben, her business manager, that he would probably sell the note to C. C. Burr, of Lincoln, as he (Jones) was going to England, and desired to take the money with him, and that the maker should pay the note to Mr. Burr. The latter had been, and then was, the agent of Mr. Jones. Instead of selling the note, the payee, soon after it was given, indorsed the same in blank, and delivered the instrument to Mr. Burr, for collection. On September 19, 1892, Mrs. Muff paid $1,000 on the note to Mr. Burr; and on November 11, 1892, she paid him the balance due; and the instrument was at the time delivered to her, indorsed, "Paid Nov. 11th, 92. C. C. Burr." On October 16, 1892, James E. Jones died, leaving a will; and Jacob Bigler was duly appointed executor of his estate, and qualified as such. The executor repudiates the payment made to Mr. Burr on November 11th, claiming that the latter's authority to collect the note had been previously revoked by the death of Mr. Jones; and this action was brought to recover from Mrs. Muff the amount of said payment, as the balance alleged to be due on the note. The jury returned a verdict for the defendant, under a peremptory instruction of the court so to do; and error has been prosecuted from the judgment entered thereon. After the filing of the record in this court, Jacob Bigler died; and the action was revived in the name of Jasper C. Deweese, as executor de bonis non of the estate of James E. Jones, deceased.

It is disclosed that Mrs. Muff paid the amount due on the note to Mr. Burr in good faith, without any notice or knowledge whatsoever that he was not the owner of the paper, or that Mr. Jones, the payee, was dead. It is insisted that the court erred in directing a verdict for the defendant, because the death of Jones revoked the authority or power of Mr. Burr to receive from the maker payment of the obligation, although she was unaware of the death of the payee. Undoubtedly, the rule is that the death of a principal instantly terminates the agency. But it by no means follows that all dealings with the agent thereafter are absolutely void. Where, in good faith, one deals with an agent within his apparent authority, in ignorance of the death of the principal, the heirs and representatives of the latter may be bound, in case the act to be done is not required to be performed in the name of the principal. There is a sharp conflict in the authorities on the question, but it is believed that the better reasoned cases sustain the proposition stated, among which are the following: Ish v. Crane, 8 Ohio St. 520; Id. 13 Ohio St. 574; Cassidy v. McKenzie, 4 Watts & S. 282; Davis v. Lane, 10 N. H. 156; Dick v. Page, 17 Mo. 234; Moore v. Hall, 48 Mich. 143, 11 N. W. Rep. 844; 1 Am. & Eng. Enc. Law (2d Ed.), 1224.

We quote the following apposite language from the opinion in Ish v. Crane, 8 Ohio St. 520: “Now, upon what principle does the obligation, imposed by the acts of the agent after his authority has terminated, really rest? It seems to me the true answer is, public policy. The great and practical purposes and interests of trade and commerce, and the imperious necessity of confidence in the social and commercial relations of men, require that an agency, when constituted, should continue to be duly accredited. To secure this confidence, and consequent facility`and aid to the purposes and interests of commerce, it is admitted that an agency, in cases of actual revocation, is still to be regarded as continuing, in such cases as the present. toward third persons, until actual or implied notice of the revocation. And I admit that I can perceive no reason why the rule should be held differently in cases of revocation by mere operation of law. It seems to me that in all such cases the party who has by his own conduct purposely invited confidence and credit to be reposed in another as his agent, and has thereby induced another to deal with him in good faith, as such agent, neither such party nor his representatives ought to be permitted, in law, to gainsay the commission of credit and confidence so given to him by the principal. And I think the authorities go to that extent. See Pickard v. Sears, 6 Adol. & E. 469. The extensive relations of commerce are. often remote as well as intimate. The application of this doctrine must include factors, foreign as well as domestic, commission merchants, consignees and supercargoes, and other agents remote from their principal, and who are required for long periods of time, not unfrequently, by their principal, to transact business of immense importance, without a possibility of knowing perhaps even the probable continuance of the life of the principal. It must not unfrequently happen that valuable cargoes are sold and purchased in foreign countries by the agent, in obedience to his instructions from his principal, after and without knowledge of his death. And so, too, cases are constantly occurring of money being collected and paid by agents, under instructions of the principal, after and without knowledge of his death. In all these cases, there is certainly every reason for holding valid and binding the acts so done by the agency which the principal had, in his life, constituted and ordered, that there would be to hold valid the acts of one who had ceased to be his agent, by revocation of his power, but without notice to the one trusting him as agent." In the case at bar it was not necessary for the agent, Mr. Burr, to collect or receive the money in the name of Mr. Jones, nor did he do so. defendant was justified in paying the money under the circumstances disclosed by the evidence. The note was properly indorsed by the payee in blank, and it was at the time in possession of Mr. Burr. Payment to him, without knowledge that the note was held for collection, or that the owner was dead, discharged the debt. Davis v. Associa

The