#### James Moore *Ex’r. v.*Solomon Tickle.

No power can be inferred from a relation of master and servant, whereby the servant can bind his master. Hence a groom has not theriglit to vary from his employ.er’sterms, unlessaspecialauthority beproved.

This was an action commenced by a warrant, wherein the plaintiff sought to recover live dollars for the season of a mare belonging to the defendant, to the horse of his, testator.

The cause was tried before Norwood, Judge, at 0-range, on the last circuit, when the plaintiff having proved that the horse was advertised for the season at five dollars, and that the defendant’s mare was put to him for that period, the defendant proved a special agreement with the groom, whereby he was to pay hut three dollars and fifty cents, and offered some evidence of a custom among tiie keepers of horses; whereby the grooms were permitted to alter the advertised prices.

*245His Honor informed the jury, that if it was the cus-t@m for grooms to make special contracts with the owners of mares, they might from the evidence in the cause', presume the agency of the groom, and in that event the plaintiff would be bound by the agreement between his groom and the defendant.

A verdict was returned for the defendant, and the plaintiff appealed.

No counsel appeared for the plaintiff.

*Jfash,*for the defendant, submitted the cause.

Haxi, Judge.

The terms which the plaintiff held out to the public were notorious. There is no complaint that the defendant was ignorant of them. The employment of the agent did not lead him into contact with those terms ; it had no relation to them. He had no right to Alter them in whole or in part. If the defendant and the agent made a contract in contravention of them, it must have been understood, or ought to have been understood, that it was not obligatory without the assent of the employer.

But a custom sanctioning this agreement with the agent has been relied upon. I imagine it would be very difficult to prove such a custom. Instances of such secondary contracts may have happened, and been connived at. But such instances fall far short of establishing a custom, which is to be considered generally obligatory. There is no necessity in this case to presume, that an implied power was given by the employer to the agent to alter the terms held out to the public. If the employer had thought proper to confer such a power, he could easily have expressed it. This is not like the case of a salesman behind the counter. He is identified with his employer. He acts in the room and place of his employer in selling goods. He is placed there for that purpose; and his employer is bound by his acts. But a principal is not bound by a regulation entered into by his agent, uhless it come within the scope of a delegated authority.

HupfiN, Judge.

The terms expressed in the advertisement may certainly be varied by a special contract; *246and that contract may be made with the owner of the horse or his agent, But if made by the latter, his character must be proved. This is not done by the evidence ¿n this case. There is no proof of an express agency to this purpose. Nor can an authority to make special bargains be inferred from the relation between the parties. A groom is the mere servant, menial as it were, not the general agent of the owner of the horse. And as to what the case calls “ some proof of a custom,” I must say that the understanding or misunderstanding of the law in a particular neighborhood, or by a portion of. the people in the neighborhood, cannot enlarge the powers of a lackey into those of an agent, capable of controlling the contracts of the master.

Customs are of two sorts, general and local. The former nr,cds no proof, but are judicially known and form part of (lie law. The latter, if proved, cannot alter, the law, or form a ground of the construction of a contract, except in a very few cases, which are mostly of a mercantile character.

If indeed there had been proof, that this groom had made other contracts on terms variant from those advertised, and the master recognized them, by receiving payment according to them, or otherwise treated them as valid, it would have been different. That would have, been evidence, that in this particular case, there was, in fact, an agency, as understood by all parties. But there was no evidence of that sort. *And sueh*an agency cannot be inferred from the circumstance, that some other grooms have been, or have been understood to ho their master’s agents. A groom is not known, as a trader’s shopman or a merchant’s clerk; and therefore, there must be evidence of an actual authority in the former, to make contracts different from those offered by the owner.

Per Curiam. — Judgment reversed.