dissenting.
Finding myself unable to agree to the conclusion reached by the majority of the court in the present case, I shall proceed to a statement of the reasons which seem to me to justify a contrary view. It will be observed, upon an examination of the opinion filed by my brethren, that the real point of difference between us is as to the effect of the evidence submitted touching the character of the agency under and by virtue of which the agent acted in the purchase of the goods for the recovery of the value of which this action is 'brought. For a statement of the necessary facts I refer to the opinion of the court, pronounced through Justice Lumpkin. It will be seen that the defendants had an agent who for them was authorized to buy cotton at the point designated, from any person whomsoever, without limitation as to quantity, quality, or price to be paid. ITe had full power in the name of his principal to complete the contract of purchase. He was at his general discretion to^ select the person from whom he would purchase, agree upon the price to be paid, the thing to be purchased (provided only it was cotton), to perform every needful act in the transmission of title from the sellers to his principal, including the acceptance of delivery of the thing sold. Hp to this point there was not the slightest limitation upon the authority of the agent. In dealing with the seller, he in *177.all respects represented and was the alter ego of tire principal; and this, according to my view, constituted him a general agent — one exercising general powers with respect to the purposes of the agency, as distinguished from one exercising powers with respect to a particular subject; nor ■does it occur to me that the mere fact that the scope of the agency did not extend beyond the purchase for the principal of one commodity in general, render it the less a general agency. My brethren agree that if the agency was general and not special, the principal is bound. The distinction between the two classes of agency has been so aptly stated by Mr. Justice Strong, speaking for the Supreme Court of the United States, in the case of Butler v. Maples, reported in 9th Wallace, page 766, that in support of my own view I take the liberty of quoting from his opinion as follows: “The distinction between a general and a special agency is in most cases a plain one. The purpose of the latter is a single transaction with designated persons. It does not leave to the agent any discretion as to the persons with whom he may contract for the principal, if he be empowered to make more than one contract. Authority to buy for a principal a single article of merchandise by one ■contract, or to buy several articles from a person named, is a special agency; but authority to make purchases from any persons with whom the agent may choose to deal or to make any indefinite number of purchases, is a general agency, and it is not the less a general agency because it does not extend over the whole business of the principal. A man may have many general agents — one to buy cotton, another to buy wheat, and another to buy horses. So he may have a general agent to buy cotton in one neighborhood, and another general agent to buy cotton in another neighborhood. The distinction between the two kinds of agencies is, that the one is created by power given to do acts of a class, and the other by power given to do in*178dividual acts only.” Upon authority of the distinction, thus stated, the writer is content to rest his judgment that the agency now under review was general, and not special as contended by the majority. If this premise be established, it is conceded by the majority that the position of the writer is sustained.
But I shall nevertheless undertake to examine the scope of the general agency, in the light of what my brethren treat as concurrent instructions limiting its scope, which are deducible from the letter quoted in the opinion of the court; and in doing so, I will in the outset endeavor to make a distinction between instructions from the principal to the agent which operate as limitations upon the power itself, and those instructions which relate to transactions between the agent and the principal, and between the agent and persons other than the seller dealing with him with respect to the same matter. The former inhere in and become a part of the power, and if known, affect third persons; the latter do not, and a disobedience of such instructions makes questions between the agent and his principal only. The scope of the agency in the present case comprehended the employment by the agent of such means as were necessary in the purchase of cotton. What means were to be so employed was left to the discretion of the agent; but after the purchase was in all respects complete, and the entire transaction, so far as the purchase was concerned, was concluded by a delivery of the cotton, then only did the alleged instructions apply. It will be seen that they in no way related to the contract by which the ownership of the cotton was changed, but related only to the manner in which the agent upon the part of his principal should perform the duty of payment. For his own protection against the infidelity of his agent, the principal required that in the event the agent should see proper to^ pay for purchases by draft upon the bank, bills of lading should be attached to drafts drawn by the agent upon the *179bank to which the letter containing the alleged instructions was addressed, and in that event authorized the bank to honor the drafts, and if the bank had paid such drafts without requiring bills of lading, as instructed, the principal could not have been held liable thereon; but I find nowhere in the record any requirement that the agent shall purchase for cash or credit only, or that in payment for cotton he must at all events draw through the bank. The letter only guaranteed to the bank drafts drawn in accordance with its terms, and did not undertake to limit the agent as to the manner of payment. When, however, the cotton purchased had been delivered by the seller to the common carrier upon the order of the general agent, the liability of the principal to the seller for the purchase price was complete; and what difference could it make to the seller whether the agent thereafter obeyed instructions or not? It might affect the agent, and might affect the bank dealing with him, but not the seller. The violation of such instructions could not by any possibility affect, much less discharge, the liability of the principal for the price of the goods. Had the agent obeyed instructions, the bank might have paid the draft delivered by him to the seller; but it is impossible for me to understand how, in law or morals, the repudiation of the draft coxxld discharge the piúxicipal frcm liability for the price of the cotton. That the cotton, for the purchase price of which this action was brought, was actually sold by the plaintiff, and by hixn delivered to the common carrier upon the order of the agent of the defendant who had competent authority to buy, cannot be disputed; and to say that the infidelity, misfeasance or nonfeasance of the agent for whose conduct the defendant is in no manner responsible should absolve his pidncipal from the dxxty to pay, is equivalent to permitting the principal to take advantage of his own fraud, and this I cannot consexit to sanction. I think my brethren have xnisconceived the scope of the agency in question, and have fallen in*180advertently into tbe error of confusing instructions to tbe agent as to tbe manner of bis dealing witb tbe bank, witb limitations upon bis part to act for bis principal in tbe execution of tbe purposes of that agency; and, therefore, am of tbe opinion that tbe judgment should stand affirmed.