regulated and restricted by law. Mediate (or subordinate) powers are those incident to primary powers given by a principal to his agent. Thus, an agent authorized to perform certain acts has power to employ all the incidents to his authority to accomplish the thing intended. The general authority given to collect, receive, and pay debts due by or to his principal is a primary power. In order to accomplish this it is frequently necessary to settle accounts, adjust disputed claims, resist unjust demands, and defend suits. These subordinate powers are called mediate powers.k

Ratification, when express, is that made in open and express terms. Implied ratification is that which the law presumes from the acts of the principal; thus, if A. buys goods for B., and the latter knowing of the purchase receives them and applies them to his own use, the law will presume B.'s assent to the purchase. By ratifying a contract a person adopts the agency altogether, as well what is detrimental as that which is beneficial.1

The principal has, as a general rule, the right to elect whether he will adopt an unauthorized act or not; having once ratified the act, upon a full knowledge of all the material circumstances, the ratification cannot be revoked or recalled, and the principal becomes bound as if he had originally authorized the act.m The ratification of a lawful contract has a retrospective effect, and binds the principal from its date, and not only from the time of the ratification, for the ratification is equivalent to an original authority." Such ratification will, in general, relieve the agent from all responsibility, when he would have otherwise been liable." See CONTRACTS.

Recognition is the acknowledgment or avowal that something which has been done by one person in the name of another was done by authority of the latter. A recognition by the principal of the agency of another is, in the particular instance, evidence of the authority of the agent; and this recognition may be express or implied.P

Revocation is recalling or revoking an authority conferred, or the annulling or vacating of an instrument conferring a power previously made. The principal may, at any time, put an end to the relation between himself and his agent by withdrawing the authority, unless the authority is coupled with an interest, or given for a valuable consideration. And K-1 Story Ag. 58; see 1 Campb. 43, ; 4 Id. 163; 6 S. & R. 149. 1-2 Str. 859; 1 Atk. Ch. 158; 4 T. R. 211; 7 East. 164: 16 Martin, La. 105; 1 Ves. Ch. 509; Smith Merch. L. 60: Story Ag. 250; 9 B. & C. 59. m-Story Ag250; Paley Ag. (Lloyd's Ed.) 171; 3 Chitty C. L. 197. n-Poth. Ob. n. 75: 2 L. Raym. 930: Campb. 450; 5 Burr. 2727; 2 H. Bl. 623; 1 B. & P. 316: 13 Johns. 367: 2 Johns. Cas. 424; 2 Mass. 106; Co. Litt. 207, a; Story Ag (4th Ed) 102; Broom. Max. 715; 2 Bouv. Inst. 25: 4 Id. 26; 8 Wheat. 363; 7 Exch. 726; 10 Id. 845: 9 C. B. 532. 607; 14 Id. 53. 0-2 B. & B. 452: see 16 Mass. 461; 8 Wend. 494; 10 Id. 399: Story Ag. ? 251. D-1 Campb. 43, n, a; 4 Id. 88: 1 Esp. Cas. 61. q8 Wheat. 201: 2 Esp. 565; 10 B. & C. 731: 3 Id. 482; 7 Ves 28; 2 M. & W. 371; 1 B. & Ald. 684; 9 C. B. 441 4 N. Y. Leg. Obs. 301; 14 Pet. 479, 405; Story Agency, 466, 467, 468; 2 Kent Comm. 644; 23 Pick.

this countermand may, in general, at the mere will of the principal, be effected at any time before the contract is completed, even though there be an express agreement not to revoke. But when the authority or power is coupled with an interest, or when it is given for a valuable consideration, or when it is a part of security, then, unless there is an express stipu lation that it shall be revocable, it cannot be revoked. Unless the power provides a specific mode of revocation (in which case it must be strictly followed) its authority may be revoked in any form the constituent or principal may adopt. Where third parties have dealt with an agent clothed with general powers, whose acts have therefore bound his principal, and the principal revokes the authority he gave his agent, such principal will continue to be bound by the further acts of his agent, unless such third parties have knowledge of the revocation, or unless he does what he can to make the revocation as notorious and generally known to the world as the fact of the agency." This is usually done by advertising.

Naked powers not coupled with an interest may always be revoked by the express act of the constituent or principal whenever he so elects, he being bound by all the acts of the agent until notice of the revocation; until such notice the agent is entitled to compensation and indemnity for all acts done and liabilities incurred. The act of revocation is merely provisional and contingent until notice is com municated to the agent." Third persons who deal with the agent before notice of the revocation of his powers are not affected by it." But strangers who have never dealt with the agent before the revocation of his powers, if the principal has given public notice of the revocation in such a manner as to render the fact generally known in the vicinity, will have no remedy against such principal. Where, however, the power was conferred in writing, and the agent retains and exhibits it as the evidence of his authority, so that strangers are fairly justified in believing in its continuance, having no adequate means of knowledge of its revocation, the acts of the agent will bind the principal. It is a question of fact whether, under all the circumstances, a party is justified in supposing the authority still continues."

An agent's authority terminates by the bankruptcy of either the principal or the agent, though not necessarily by the bankruptcy of the 330: 14 Pet. 479; 22 Pick. 40; 12 N. H. 239: 3 Comst. 78; 5 C. B. 895: 6 M. & W 670. r-3 Chitty C. & M. 223; 2 Liverm. Ag. 309; Paley Ag. 185; Story Ag. 462, 465. S-Story Ag. 8 476, 477: 2 Liverm. Ag. 308, 309: Paley Ag. 184, 185; 2 Kent Comm. 643, 644; 2 Mass. C. C. 244. 342. t-8 Ired. 74; 6 Pick 108; Story Ag. 2 474. -Stra. 506; 12 Mod. 346; 5 T. R. 215: 4 Mun 130; 5 Binn. 305: 11 N. H. 307: 12 Q. B. 460; 4 Campb. 215. V-1 Parsons Contr. 58 and notes; 6 Ind. 231. W-1 Str. 506; 5 T. R. 211-214; 12 Q. B. 460; 4 Campb. 215: 12 Mod. 346; 4 Munf. 130; 5 Binn. 305: 5 Dana, 513: 17 Mo. 204; 11 N. H. 397; 2 Kent. Comm. 644, and cases cited; 11 Ad. & F. 589, 592. X- Parsons Contr. 59, 60; Dav. Dist. Ct. 287. y11 N. H. 397. Z-12 Q. B. 460. a-2 Kent Comm. 644, and notes; 4 Taunt. 544; 16 East. 382; 5 B. & Ald. 27.

latter. Where the agent has a lien it may be enforced in the name of the assignee.

The authority of an agent may be revoked by death of either principal or agent. In case of a naked authority the death of the principal terminates the authority of the agent by that event itself, and without notice either to the agent or those with whom he deals. Acts done in good faith in discharge of the agent's duty before knowledge of the death of his principal, and which enures to the benefit of the principil's estate, are binding upon his personal representatives. Where the agent has entered upon the business or incurred expenses he is entitled to compensation. And if he has incurred liabilities he is entitled to indemnity. Powers coupled with an interest which are not revocable by the act of the principal during his life, are, nevertheless, annulled by his death, so far as any act in his name is concerned. Joint authority by two persons terminates by the death of one of them.

A complete execution of the trust, or accomplishment of the business or undertaking, operates an extinguishment of authority.j

The agency may terminate by the expiration of the period which it was to exist, and to have effect; as, if an agency be created to endure a year, or until the happening of a contingency, it becomes extinct at the end of the year, or the happening of the contingency.k

The extinction or destruction of the subjectmatter of the agency destroys with it the power to accomplish the result intended.j

The authority of the agent may be revoked by the incapacity of either principal or agent.

Insanity either of the principal or agent terminates the agency. But third persons, ignorant of the fact of insanity, and whose contract with the agent is fair and just, will be protected. An inquisition of lunacy is constructive notice to all;" and the inquisition forming the basis of the commission is allowed to antedate the finding of the incapacity, in which case it would probably throw the burden of proof on the other party. If the power confer an interest upon the agent which can be enforced in his name, insanity will not operate as a revocation.

Loss of the principal's interest operates as a revocation."

The marriage of a feme sole terminates her power either as principal or agent, though not necessarily so.¶

When the authority has been partially executed by the agent, if it admit of severance, or of being revoked as to the part which is unb-Story Ag. 22 485, 486; 12 Mod. 383; 3 Burr. 1469, 1471. e-Story Bailm. 211; Story Ag. 2486. d-Story Bailm. 209: 1 Kent. Comm. 645: Paley Ag. 185. e-Willes, 103; 10 M. & W. 1; Story Ag. 488; 4 Pet. 333, 334: Humphr. 294; 12 N. H. 146; 4 Metc. Mass. 333: 11 Leigh. 137. f-33 Eng. L. & Eq. 229; Dav. Dist. Ct. 287; Bac. Abr. Authority (E.). g-Chitty Contr. 225, n. 0. h-4 Campb. 272; Willes, 105, 563; 5 Esp. 117; 6 East 356; 8 Wheat. 174: 2 Kent. Comm. 646; 2 Me. 14; Prec. n, Ch. 125. 1-2 Kent Comm. 645; 15 East. 592. j-Story Ag. 2499; Story Bailm, 207; 2 Bouv. Inst. 51, 52. K-Story Ag. 480. 1-2 Kent Comm. 645, and cases cited in note. m-10 N. H. 156.

executed, it may be revoked as to that part; but if it be not thus severable, and the agent by its execution in part will sustain damage, it cannot be revoked as to the unexecuted part, unless the agent be fully indemnified. This revocation may be by a formal declaration publicly made known, or an informal writing, or by parol; or it may be implied from circumstances, as, if another person be appointed to do the same act. It takes effect from the time it is made known, and not before, both as regards the agent and third persons.t

The determination may be by the renunciation of the agent either before or after a part of the authority is executed;" it should be observed, however, that if the renunciation be made after the authority has been partially executed, the agent, by renouncing it, becomes liable for the damages which may thereby be sustained by his principal, or, by operation of law, in various ways.

V

Powers coupled with an interest are, in general, not revocable. Being transferred upon consideration, a power is no more revocable than any other contract." Whenever the power confers an interest in the subject-matter only, and not in the results, and constitutes an essential part of a security upon the faith of which money or other thing has been advanced or liability incurred, it is not revocable even by the death of the principal, but may be thereafter executed, where it can be done without the use of the name of the principal. The consignee of goods for sale who has incurred liability or made advances upon the faith of the consignment, acquires a power of sale which, to the extent of his interest, is not revocable or subject to the control of the consignor. if orders are given by the consignor contemporaneously with the consignment and advances, in regard to the time and mode of sale, and which are, either expressly or impliedly, assented to by the consignee, he is not at liberty to depart from them afterward. But if no instructions are given at the time of the consignment and advances the legal presumption is that the consignee has the ordinary right of factors to sell according to the usages of trade and the general duty of factors, in the exercise of a sound discretion, and reimburse the advances out of the proceeds, and that this right is not subject to the interference or control of the consignor.

But

A pledge of personal property to secure the liabilities of the pledgor, with an express power of sale, confers such an interest in the subject-matter that it will not be revoked by n-2 Kent. Comm. 645. -Chitty Contr. 224, and notes, (Perkins Ed.) 1860. p-i Rolle Abr. 331, Authority (E. Pl. 4); W. Jones, 388; 5 East. 266; 2 Kent. Comm. 645; 11 Vt. 545. q-Story Ag. 22 485, 486: 12 Mod. 383; 3 Burr. 1469, 1471. r-Story Ag. 2466. S-Story Ag. 474: 5 Binn. 305: 6 Pick. 198. t-Story Ag. 2470; Paley Ag. 188: 2 Liverm. Ag. 306, 310; 2 Kent Comm. 644; 11 N. H. 397. u-Story Ag. 478. V-Story Ag. 478; Jones Bailm. 101; 4 Johns. 84. W-1 Parsons Contr. 61, and notes; Chitty Contr. 224, and notes (Perkins Ed. 1860); 7 Ves. Ch. 3, 8. X-1 Caines Cas. 1; 3 B. & C. 842, 851; 2 Esp. Cas 565; 4 Campb. 272; 17 Mass. 234. y-14 Pet. 479.

his death. But a power to pledge and sell the property of a constituent, and from the avails to reimburse advances made or liabilities incurred by the appointee, is not so coupled with an interest as to be revocable.j The interest must exist in the subject-matter of the power, and not merely in the result of its exercise, to become irrevocable. Hence, if one give a letter of credit agreeing to accept bills to a certain amount within a limited time, the letter is revoked by death, and bills drawn after the death and before knowledge thereof, reaching the drawer, cannot be enforced against the estate of such deceased party. All contracts which are to be executed in the name of the constituent or principal by virtue of an agency, although forming an essential part of a security upon the faith of which advances have been made, are of necessity revoked by the death of the constituent. Even a warrant of attorney to confess judgment, although not revocable by the act of the party, is revoked by his death.

times, and whenever called on, without con cealment or overcharge."

And

The responsibility of an agent, whether fo positive misconduct, or for deviation from instructions, is not measured by the extent of hi commission or compensation, but by the loss or injury which he may cause his principal. And, in general, a verdict against a principal for the act of his servant, is the measure of damages which the former may recover from the latter. An agent is bound to great diligence and care for his principal; not the utmost possible, but all that a reasonable man, under the circumstances, would take of his own affairs. he is bound to possess and exert the skill and knowledge necessary for the proper performance of the duties which he undertakes. If an agent, without necessity, has mixed the property of his principal with his own in such a way that he cannot render an account precisely discriminating between the two, the whole of what is so indistinguishable is held to belong to the principal; for it was the duty of the agent to keep the property and accounts separate, and he must bear the responsibility and consequences for not doing so. If an agent em

pal, whenever, for a valuable consideration, he has undertaken to perform them." When his authority is limited by instructions it is his duty to adhere faithfully to those instructions; but cases of extreme necessity and unforeseen energency constitute exceptions to this rule; P and where the agent is required to do an unlawful or an immoral act 9 he may violate his ir structions with impunity. If he have no specific instructions, he must follow the accust med course of the business. When the tansaction may, with equal advantage to the principal, be done in two or more different

ays, the agent may, in general, do it in either, provided a particular mode has not been prescribed to him. He is to exercise the skill employed by persons of common capacity similarly engaged, and the same degree of diligence that persons of ordinary prudence are accustomed to use about their own affairs." It is his duty to keep his principal informed of his doings, and to give him reasonable notice of whatever may be important to his interests." He is also bound to keep regular accounts of business and money transactions, and to render his accounts to his principal at all reasonable

1-10 Paige Ch. 205. 1-8 Wheat. 174: 6 Comm. 559. K-15 N. H. 468. 1-28 Vt. 209. m-Paley Ag. 3: 2 L. Raym, 517. n-Story Ag. 189; 6 Cow. 128; 7 Id. 456; 20 Wend. 321. O-Paley Ag. 3, 4; 3 Bos. & P. 75: 5 Id. 269; Story Ag. 193; 3 Johns. Cas. 36; 1 Sandf. 111; 26 Penn. St. 394; 14 Pet. 494. D-1 Story, C. C. 45; 4 Binn. 361; 5 Day, 556; 26 Penn. St. 394; 4 Campb. 83. q-6 C. Rob. Adm. 207; 7 T. R. 157; 11 Wheat. 258. r-Story Ag. 2 193, 194, 195; 11 Mart. 636. S-Paley Ag. 4; 4 Story Ag. 2199: 1 Gall. 360. t-1 Liverm. Ag. 103. -Story Ag.

183; Paley Ag. 77, 78; East. 348; 6 Taunt. 495; 10 Bing. 57; 1 Johns. 364: 20 Pick. 167; 6 Met. (Mass.) 13; 24 Vt. 149. v-Paley Ag. 27, 38, 39: Story Ag. 208; 5 M. & W. 527; 4 W. & S. 305; 1 Story, C. C. 43, 56: 4 Rawle, 229; 6 Whart. 9; 13 Mart. 214, 365. w-Paley Ag 47, 48; Story Ag. 203: Story Eq. Jur. 468, 63: Taunt. 572; 8 Ves. 49: 14 Id. 510; 13 Id. 1 Id. 436; 1 Jac. & W. 135; 7 Ired. Eq. 211; 12 Q.

duty and does all he was required to do, he is entitled to full compensation, although the principal declines or refuses to take advantage of the agent's act, or even adopt it.

As to their principals, the liabilities of agents arise from a violation of duties and obligations to them by exceeding their authority, by misconduct, or by any negligence, omission, or act, by the natural result or just consequence of which the principal sustains a loss. And joint agents who have a common interest are liable for the misconduct and omissions of each other in violation of their duty, although the business has, in fact, been wholly transacted by one with the knowledge of the principal, and it has been privately agreed between themselves that neither shall be liable for the acts or losses of the other.d

The degree of neglect which will make the agent responsible for damages varies according to the nature of the business and the relation in which he stands to his principal. The rule of common law is, that where a person holds himself out as of a certain business, trade, and profession, and undertakes, whether gratuitously or otherwise, to perform an act which relates to B. 531; Johns. Ch. 62-108; 1 C. B. (N. S.) 26. X-19 Law T. 10; 2 Brock. 350; 6 Whart. 9, 12 N. H. 1.239: 20 Wend. 321; 1 B. & Ad. 415. y-8 Taunt. 202 S. Č.; 2 Moore, 125. z-Co. Litt. 89, a: 10 Bing. 57; 1 Johns. Cas. 174; 1 Wash. C. C. 154: 4 Nev. & M. 170; 2 A. & E. 256; 4 B. & C. 345. a-One who undertakes to act in a professional or other clearly defined capacity, as that of a carpenter, blacksmith, or the like, is bound to exercise the skill appropriate to such trade or profession; and this although the undertaking be gratuitous; 4 B. & C 435: H. Bl. 161; 2 Chitty, 311; 8 C. & P. 479; 7 Foster (N. H.) 460; 11 M. & W. 113. b-15 Ves. 4.6440; 8 Id. 46; 11 Id. 377; 2 Johns. Ch. 62-108; 1 C. B. (N. S.) 26. e-Story Ag. 217 c; Paley Ag. 7, 71, 74. 1 Liverm. Ag. 398; 1 B. & Ad. 415; 6 Hare Ch. 366; 12 Pick. 328; 20 Id. 167; 11 Ohio, 363; 13 Wend. 518; 6 Whart. 9. d-1 Liverm. Ag. 79-84; Story Ag. 23: Paley Ag. 52, 53: 7 Taunt. 403.

As to third parties. Ger.erally, when a person having full authority is known to act merely for another, his acts and contracts will be deemed those of the principal only, and the agent will incur no personal responsibility. But when an agent does an act without authority, or exceeds his authority, and the want of authority is unknown to the other party, the agent will be personally responsible to the person with whom he deals. If the agent, having original authority, contract in the name of his principal, and it happens that at the time of the contract, unknown to both parties, his authority was revoked by the death of the principal, the agent will not be personally responsible.1

guar

An agent will be liable on a contract made with him when he expressly, or by implication, incurs a personal responsibility; as, if he make an express warranty of title, and the like; or if, though known to act as agent, he give or zccept a draft in his own name; and public as well as private agents may, by a personal engagement, render themselves personally liable.1 In general, although a person contract as agent, yet if there be no other responsible principal to whom resort can be had, he will be personally liable; as, if a man sign a note as “ dian of A. B.," an infant, in that case neither the infant nor his property will be liable, and the agent alone will be responsible. The case of an agent of government, acting in that capacity for the public, is an exception to this rule, even though the terms of the contract be such as might, in a case of a private nature, involve him in a personal obligation; it not being presumed that a public agent meant to bind himself individually." Masters of ships, though known to contract for the owners of the ships and not for themselves, are liable for the contracts they make for repairs, unless they negative their responsibility by the express terms of the contract." As a general rule, the agent of a person resident in a foreign country

e-Paley Ag (Lloyd's Ed.) 7, note 4. f-1 Liverm. Ag. 336, 339, 342. g-2 Liverm. Ag. 245; Story Ag. 261; Paley Ag. 368, 369: 2 Kent. Comm. 629, 630; 15 East. 62; 3 P. Wms. 277; 6 Binn. 324; 13 Johns. 58, 77; 15 Id. 1. h-Story Ag. 264; 2 Liverm. Ag. 255, 256; 2 Taunt, 385; 7 Wend. 315; 8 Mass. 178. i-Story Ag. 265; (a) 10 M. & W. 1. j-Story Ag. 2 156-159, 269. k-5 Taunt. 74: 1 Mass. 27, 54; 2 Duer 260: 2 Conn. 453: 5 Whart. 288 1-Paley Ag. 381. m-Paley Ag. 374: Story Ag. 280; 2 Brod. & B. 460; 5 Mass. 299; 6 Id. 58: 8 Cow. 31. n-Paley Ag. 376, 377; and see 5 B. & Ald. 34 1 Brown Ch. 101; 6 Dowl. & R. 122; 7 Bingh. 110. -Paley Ag. 388; 15 Johns. 298; 16 Id. 89; 11 Mass. 34. p-2 Liverm. Ag. 249; Story Ag. 268; Paley Ag. 248, 373, 382; 15 East. 68; 9 Barn. & C. 78; 3 Hill (N. Y.) 72. q-11 Ad. & E. 589, 594, 595. r-11 Wend. 477; 3 P. Wms. 279; 4 Q. B. 235, #: Story |

An agent is not personally liable, unless he transcends his agency, or departs from its provisions; or unless he expressly alleges his own liability, in which case he is liable, although he describes himself as agent; or unless he conceals his character as agent; " or unless he so conducts as to render the principal inaccessible or irresponsible; or unless he acts in bad faith. If a sealed instrument is executed by an agent, and it contain covenants which expressly purport to be those of the principal, and the agent in executing it calls himself an agent, he is not liable on those covenants; but if they are not expressly the principal's covenants, the agent is liable on them. If a person dealing with an agent knows his agency, his rights and obligations will be the same as if the agent disclosed it, unless the agent purposely represents himself as a principal and assumes the responsibility of one. And if the agent's act be open to two constructions, one of which binds him, and the other binds the principal, the law prefers the latter. If a party dealing with an agent as agent, and knowing that the principal is bound, takes the agent's note, the principal is discharged. If one describes himself as agent for some unnamed principal, he is of course liable if proved to be the real principal. And one acting as agent is liable personally, if it be shown that he acts without authority. An agent is not responsible to third parties for mere neglect or omission in discharge of his duty, for they must look to the principal. An agent who exceeds his authority renders himself liable to the whole extent of the contract, although a part of it was within his authority.

An agent is personally responsible where money has been paid to him for the use of his principal under such circumstances that the party paying it becomes entitled to recall it In such cases, as long as the money has not been paid over by the agent, nor his situation altered as by giving his principal fresh credit upon the faith of it, it may be recovered from

-4

Agency, 265: 4 Q. B. 239. S-2 M. & W. 440: 8 Id. 834 6 A. & E. 486; 5 East. 148; 12 E. L. & E. 180; 29 Id. 103: 30 Me. 299; 1 Wheat. 56; 4 Mass. 595; 6 Id. 58; 13 Johns. 307; 7 Cowen, 453; 4 Herring, 451 : 2 Carter (Ind.) 327; 2 Hill (S. C.) 294. 1-10 Cust.. 324 29 E. L. & E. 103; S. C. 4, E. & B. 591; 32 E. L. & E. 127; S. C. 5, E. & B 125; 30 Conn. 122. C. B. 637: 3 A. & E. 132; 9 B. & C. 78; 2 Esp. 567: 2 Met. 319: 5 Cush. 210; 3 Hill (N. Y.) 72. V-3 T. R. 761 9 N. H. 263: 8 Texas, 98; 2 Md. 63. S. & R. 126. X-4 Bing. 269; 7 Cowen, 453: 10 Wend 87. y-2 Gillman, 371. Z-25 Me. 13. a-10 Met. 190; 8 Id. 411: 6 Greenl. 220. b-5 E. L. & E. 391; 19 Id 526. e-3 Johns. Cas. 70; 20 Mo. 284; 2 C. R. 530, #, (a); 7 E. & B. 301; 8 Wend. 494: 1 Denio, 471; 2 M. & W. 217: 5 M. & Sel. 383; 15 M. & W. 359. d-2 Comst. 126; 2 Denio, 118 e-11 Wend. 477; S. & Marsh. 1.

W-11

the agent. And if, in receiving the money, the agent was a wrong-doer, he will not be exempted from liability by payment to his principal.s

As to torts, there is a distinction between acts of misfeasance or positive wrongs, and nonfeasance or mere omissions of duty. In the former case, the agent is personally liable to third persons, although authorized by his principal, while in the latter he is, in general, solely liable to his principal.

RIGHTS AND PRIVILEGES.-As to their principals. An agent is ordinarily entitled to compensation for his services-commonly called a commission-which is regulated either by special agreement, by the usage of trade, or by the presumed intention of the parties. In general, he must have faithfully performed the whole service or duty before he can claim any commissions. He may forfeit his right to commissions by gross unskilfulness, by gross negligence, or gross misconduct in the course of his agency; as, by not keeping regular accounts; m by violating his instructions; by wilfully confounding his own property with that of his principal; by fraudulently misapplying the funds of his principal; by embarking the property in illegal transactions, or by doing anything which amounts to a betrayal of his

trust.P

n

The agent has a right to be reimbursed his advances, expenses, and disbursements reasonably and in good faith incurred and paid, without any default on his part, in the course of the agency, and also to be paid interest on such advancements and disbursements, whenever it may fairly be presumed to have been stipulated for, or be due to him. But he cannot recover for advances and disbursements made in the prosecution of an illegal transac tion, though sanctioned by or even undertaken at the request of his principal; and he may forfeit all remedy against his principal even for his advances and disbursements made in the course of legal transactions by his own gross negligence, fraud, or misconduct; nor will he be entitled to be reimbursed his expenses after he has notice that his authority has been revoked."

8

The agent may enforce the payment of a debt due him from his principal on account of the agency by an action for the amount; and he may also have the benefit of his claim by way of set-off to an action of his principal

f-Paley Ag. 388, 389; 2 Liverm. Ag. 260, 261; Story Ag. 300; 3 M. & S. 344: 7 Johns. 179; 1

Wend. 173. g-Paley Ag. 393, 394; I Camb. 396. h-Story Ag. 311: Paley Ag. 396; 1 Wils. 328; 1 Bes. & P. 410; 28 Me. 464. i-Story Ag. 308; Paley Ag. 396, 397, 398; Story Bailm. 2 400, 404, 507. j-Story Ag. 324, 326; Paley Ag. 100, 101; 8 Bingh. 65; 1 Caines, 349: 2 Id. 357. K-Story Ag. 329, 331; I Carr. & P. 384; 4 Id 289: 7 Bingh. 99; 16 Ohio, 412. 1-3 Campb. 451; 7 Bingh. 569; 12 Pick. 328. m-8 Ves. Ch. 48; 11 Id. 358; 17 Mass. 145; 2 Johns. Ch. 108. n-9 Beav. Rolls. 284; 5 Bos, & P. 136; 11 Ohio, 363. 0-3 Chitty C. & M. 222. p-Story Ag. 331-334: Paley Ag. 104, 105: Story Eq. Jur. 2 468; 12 Pick. 328, 332, 334. q-2 Liverm. Ag. 11-13; Story Ag. 335, 336; Story Bailm. 196, 197, 357, 358; Paley Ag. 107, 108;

against him, provided the claim is not for uncertain damages, and is in other respects of such a nature as to be the subject of a set-off. He has also a particular right of lien for all his necessary commissions, expenditures, advances, and services in and about the property intrusted to his agency, which right is in many respects analogous to the right of set-off." Factors have a general lien upon the goods of their principal in their possession, and upon the price of such as have been lawfully sold by them, and the securities given therefor. There are other cases in which a general lien exists in regard to particular classes of agents, either from usage, from a special agreement of the parties, or from the particular habit of dealing between them; such, for example, as insurance brokers, bankers, common carriers, attorneys and solicitors, packers, calico printers, fullers, dyers, and wharfingers.

As to third persons. In general, a mere agent who has no beneficial interest in a con tract which he has made on behalf of his principal, cannot support an action thereon." An agent acquires a right to maintain an actior, upon a contract against third persons, in the following cases:

a

I. When the contract is in writing, and made expressly with the agent, and imports to be a contract personally with him; as, for example, when a promissory note is given to the agent, as such, for the benefit of the principal, and the promise is to pay the money to the agent under that name or description; and it has been held that the right of the agent in such case to sue in his own name is not confined to an express contract: thus, one holding, as mere agent, a bill of exchange, or promissory note, indorsed in blank, or a check or note payable to bearer, may sue on it in his own name.b

2. The agent may maintain an action against third persons on contracts made with them whenever he is the only known and ostensible principal, and, consequently, in contemplation of law, the real contracting party; C as, if an agent sell goods of his principal in his own name, as though he were the owner, he is entitled to sue the buyer in his own name; and, on the other hand, if he so buy, he may enforce the contract by action. The renunciation of the agent's contract by the principal does not necessarily preclude the agent from maintaining an action, but he will still be entitled

5 B. & C. 141: 3 Binn. 295; 11 Johns. 439; 4 Halst. Ch. 657. r-Story Ag. 338; 2 Liverm. Ag. 17; 2 Bouv Inst. 36; 15 East. 223; 3 Campb. 467; 7 Wend. 315; 3 Caines, 226; 3 Binn. 295. S-Story Ag. 344: 1 Liverm Ag. 14-21 3 B. & C. 639. t-Story Ag. 348; 12 Wend. 362; 12 Pick. 328, 332; 20 Id. 167. u-Story Ag. 2 349; 2 T. R. 113; 8 Id. 204; 3 Brown, Ch. 314. V-2 Liverm. Ag. 34: Story Ag. 350, 385: 4 Burr. 2133; 6 Cow. 181; 11 Pick. 482. w-Story Ag. 373; 2 Liverm. Ag. 34: Paley Ag 127. X-Story Ag. 376; Paley Ag. 128, 129; 2 Kent Comm. 640; 26 Wend. 367; 10 Paige, Ch. 205. y-Story Ag. 22 379-384; see "Bailments," "Liens." Z-1 Liverm. Ag. 215. a-Story Ag. 8 393, 394; Liverm. 215-221; 3 Pick. 322; 16 Id. 381; 5 Vt. 500. b-Paley Ag. (Dunlap's Ed.) 861, note. c-Russell Fact. & B. 241, 244; Paley Ag. 361, note; Story Ag. 2393. d-12 Wend. 413; 5 M. & S. 833.