Parke v. Frank

McKinstry, J. —The main contention of the appellant in the court below was, that the contract of agency, not being for any definite term, was revocable at the will of the principal. Appellant claims that the rulings of the superior court, alleged to be erroneous, are exemplified by the portion of its charge to the jury which reads: “No period of time was mentioned. .... Where employment is proved, and no time is specified, the law pro- ‘ sumes it shall last and endure for a reasonable time. : What would be a reasonable time is a question for you ’ to determine”; and by the refusal of the court, on request of defendant, to charge: “If the jury believe from the evidence that no definite time was agreed upon between plaintiffs and defendant for the contract of agency to endure, then said contract could be terminated by either party thereto at his option at any time.”

The Civil Code provides: “Unless the power of an [368]agent is coupled with an interest in the subject of the agency, it is terminated, as to every person having notice thereof, by its revocation by the principal.” (Sec. 2356.) The interest which can protect a power after the death of the person who creates it must be an interest in the thing itself, and not an interest in that which is produced by the exercise of the power. (Hunt v. Rousmanier, 8 Wheat. 174.) It may be conceded that by the section of the Civil Code a revocation by the principal terminates the agency in every case where his death terminates it; and that the plaintiffs herein had no such interest in the subject of the agency as rendered the agency irrevocable.

' Nevertheless, if, for a valuable consideration, the defendant agreed not to revoke the agency for a reasonable time, and in view of the circumstances and nature of the contract a reasonable time could be ascertained, he had •^no legal right to revoke it during such time. “Although a letter of attorney depends, from its nature, on the will of the person making it, and may in general be recalled at his will, yet if he binds himself for a consideration, in terms, or by the nature of his contract, not to change his will, the law will not permit him to change it.” (Hunt v. Rousmanier, 8 Wheat. 203.) In such case, if he fails to comply with his contract, he becomes liable to the agent as such.

Even if, however, it should be conceded that under the code the principal retains the right to revoke a power at his option, in every case where the agent is not vested with an interest in the subject of the agency, this would not render illegal a collateral agreement, whereby the principal should agree for a consideration not to exercise the power for a definite period, or for a reasonable time ascertainable. In case of such an agreement, if the agency is revoked by the principal, and the agent is thereby deprived of authority further to act as such, the principal is liable in damages by reason of the breach of his promise not to recall the agency.