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An agent is bound to use, in the affairs of his principal, all that care and skill which a reasonable man would use in his own. And he is also bound to the utmost good faith. Where, however, an agent acts gratuitously, without an agreement for compensation, or any legal right to compensation growing out of his services, he will not be held responsible for other than gross negligence. But a strictly gratuitous agent will be held responsible for property intrusted to him, if it be lost or injured by his gross negligence.
For any breach of duty an agent is responsible for the whole injury thereby sustained by his principal; and, generally, a verdict against the principal for misconduct of the agent measures the claim of the principal over against the agent. The loss must be capable of being made certain and definite; and then the agent is responsible if it could not have happened but for his misconduct, although not immediately caused by it. Thus, where an insurance-broker was directed to effect insurance on goods “from Gibraltar to Dublin," and caused the policy to be made “beginning from the lading of the goods on board," and they were laden on board at Malaga, and went thence to Gibraltar, and sailed for Dublin, and were lost on the voyage, so that the policy did not cover them because they were not laden at Gibraltar, - this was held to be gross negligence on his part, and he was held responsible for the value of the goods.
If any agent embezzles his employer's property, it is quite clear that the employer may reclaim it whenever and wherever he can distinctly trace and identify it. But if it be blended indistinguishably with the agent's own goods, and the agent die or become insolvent, the principal can claim only as a common creditor, as against other creditors; but as against the factor or agent himself, the whole belongs in law to the principal; because the factor or agent had no right thus to mix up the property of another with his own, and if he chooses to do so, he must lose all of his own property that cannot be separated from that which is not his
An agent employed to sell property cannot buy it himself; nor, if employed to buy, can he buy of himself, unless expressly authorized to do so. Nor can a trustee purchase the property he holds in trust for another. But the other party may ratify and confirm such sale or purchase by his agent; and he will do this by accepting the proceeds and delaying any objection for a long time after the wrongful act is made known to him. And if a trustee or agent to sell property buys it, not in his own name, but through somebody else, the sale is voidable.
Among the obvious duties of all agents is that of keeping an exact account of their doings, and particularly of all pecuniary transactions. After a reasonable time has elapsed, the court will presume that such an account was rendered, accepted, and settled; otherwise, every agent might always remain liable to be called upon for such account. Moreover, he is liable not only for the balances in his hands, but for interest; or even, where there has been a long delay to his own profit, he might be liable for compound interest, on the same ground on which it has been charged in similar cases against executors, trustees, and guardians. No interest whatever would be charged, if such were the intention of the parties, or the effect of the bargain between them; and this intention may be inferred either from direct or circumstantial evidence, — as the nature of the transaction, or the fact that the principal knew that the money lay useless in the agent's hands, and made no objection or claim.
The general rule is, that a principal may revoke his agency, and an agent may throw up the agency at pleasure. But neither would be permitted to exercise this power in an unfair and injurious manner which circumstances do not require or justify, without being responsible to the other party for any damages caused by his wrong. ful act.
Insanity revokes authority, especially if legally ascertained But if the principal, when sane, gave an authority to his agent, and a third party acts with the agent in the belief of his authority, but after the insanity of the principal has revoked it, the insanity not being known to this third party, this revocation will not be permitted to take effect to the injury of this third party.
FACTORS AND BROKERS.
All agents who sell goods for their principals, and guarantee tho price, are said in Europe to act under a del credere commission. In this country, this phrase is seldom used, nor is such guaranty usually given, except by commission-merchants. Indeed, the word “ factor" is not commonly used in this country, except among lawyers, the common term being “commission-merchants;” and they may or may not give a guaranty. Where a guaranty is given, the factor is so far a surety, that his employers must first have recourse to the principal debtor. Still his promise is not “a promise to pay the debt of another," within the statute of frauds.” (See Section 2 of Chapter XV.) Nor does be guarantee the safe arrival of the money received by him in payment of the goods, and transmitted to his employer, but he must use proper caution in sending it. And if it is agreed that he shall guaranty the remittance, and charge a commission for so doing, he is liable, although he does not charge the commission. If he takes a note from the purchaser, this note is his employer's; and if he takes depreciated or bad paper, he must make it good.
A broker or factor is bound to the care and skill properly belonging to the business which he undertakes, and is responsible for the want of it.
A factor intrusted with goods may pledge them for advances to his principal, or for advances to himself to the extent of his lien for charges and commissions. And his power to pledge them, which grows out of the law-merchant, has been much enlarged by statute in many of our States.
The mere wishes or intimations of his employer, if sufficiently distinct, have the force of instructions. Thus, in New York, a principal wrote to his factor, stating that he thought there was a short supply of the goods he had consigned, and giving facts on which his opinion was founded, and concluded, “I have thought it best for you to take my pork out of the market for the present, as thirty days will make an important change in the value of the article." This was considered by the court to be a distinct instruction, binding upon the factor; and he was therefore held liable for the loss caused by selling the pork within the thirty days.
All instructions the agent or factor must obey; but may still, as we have already stated, depart from their letter, if in good faith, and for the certain benefit of his employer, in an unforeseen exigency. Having possession of the goods, he may insure them; but is not bound to do so, nor even to advise insurance, unless requested, or unless a distinct usage makes this his duty. He has much discretion as to the time, terms, and manner of a sale, but must use this discretion in good faith. For a sale which is precipitated by him without reason and injuriously is voidable by his principal, as unauthorized. If he send goods to his principal without order, or contrary to his duty, the principal may return them, or, acting in good faith and for the benefit of the factor, may sell them as the factor's goods.
Although a factor charges no guaranty commission, he is liable to his principal for his own default; so he is if he sells on credit, and, when it expires, takes a note to himself: but if he takes at the time of the sale a negotiable note from a party in fair credit; and the note is afterward dishonored, this is the loss of his e nployer, unless the factor has guaranteed it.
If he sells the goods of many owners to one purchaser, taking a note for the whole to himself, and gets it discounted for his own use or accommodation, he is then liable without any guaranty for the payment of that note. So he is if he gets discounted for his own use a note taken wholly for his principal's goods. But he may discount the note to reimburse himself for advances, without making himself liable. If he sends his own note for the price to his employer, he must pay it.
As a factor has possession of the goods, he may use his own name in all his transactions, even in suits at law; but a broker can buy, sell, receipt, &c., only in the name of his employer. So, a factor has a lien on the goods in his hands for his advances, his expenses, and his commissions, and for the balance of his general account. And the factor may sell from time to time enough to cover his advances, unless there be something in his employment or in his instructions from which it may be inferred that he had agreed not to do so. But a broker, having no possession, has no lien. The broker may act for both parties, and often does so. But, from the nature of his employment, a factor should act only for the party employing him.
A broker has no authority to receive payment for the goods he sells, unless that authority be given him, expressly or by usage. Nor will payment to a factor discharge a debtor who has received notice from the principal not to make such payment.
Generally neither factor nor broker can claim their commissions until their whole service be performed, and in good faith, and with proper skill, care, and industry; and their negligence may be given in evidence either to lessen their compensation or commissions, or to bar them altogether. But if the service begins, and is interrupted wholly without their fault, they may claim a proportionate compensation. If either bargains to give his whole time to his employer, he will not be permitted to derive any compensation for services rendered to other persons. Nor can either have any valid claim against any one for illegal services, or those which violate morality or public policy.
A principal cannot revoke an authority given to a factor after advances made by the factor, without repaying or securing the factor.
The distinction between a foreign and a domestic factor is quite important, as they have quite different rights, duties, and powers by the law-merchant generally. A domestic factor is one who is employed and acts in the same country with his principal. A foreign factor is one employed by a principal who lives in a dif. ferent country; and a foreign factor is as to third parties - for most purposes and under most circumstances - a principal. Thus, third parties cannot sue the principal, because they are supposed to contract with the factor alone, and on his credit, although the principal may sue them; and a foreign factor is personally liable, although he fully disclose his agency, and his principal is known.
The following forms of powers of attorney are those most frequently required; and from them, by suitable alterations, powers of attorney may be framed for any purpose.
FORMS ANNEXED TO THIS CHAPTER.
(159.) A power of attorney. (160.) A power of substitution. (161.) A power of attorney in a shorter form. (162.) A full power of attorney to demand and recover debts. (163.) A power of attorney to sell and deliver chattels. (164.) A power of attorney given by seller to buyer. (165.) A power of attorney to sell shares of stock, with appointment
by attorney of a substitute. (166.) A power of attorney to subscribe for stock. (167.) A proxy, or power of attorney to vote. (168.) A proxy, revoking all former proxies. (169.) A proxy, with affidavit of ownership, in use in New York (170.) A power to receive a dividend.
POWER OF ATTORNEY.
KNOW ALL MEN BY THESE PRESENTS, That I (the name of the principal or party appointing), of (residence), have constituted, ordained, and made, and in my stead and place put, and by these presents do constitute, ordain, and make, and in my stead and place put (name of attorney), to be my true, sufficient, and lawful attorney, for me and in my name and stead to (here set forth the purposes for which the power is given).
Giving and hereby granting unto him, the said attorney, full power and authority in and about the premises; and to use all due means, course,
and process in law for the full, effectual, and complete execution of the business afore described; and in my name to make and execute due acquittance and discharge; and for the premises to appear, and the person of me the corstituent to represent, before any governor, judges, justices, officers, and ministers of the law whatsoever, in any court or courts of judicature, and there on my behalf to answer, defend, and reply unto all actions, causes, matters, and things whatsoever relating to the premises. Also to submit any matter in dispute, respecting the premises, to arbitration or otherwise; with full power to make and substitute, for the purposes aforesaid,