LIABILITY OF AGENT IN TORt for Breach OF FIDUCIARY DUTY. Among the obligations of an agent to his principal, are the duties, (1) to obey instructions, (2) to exercise care and skill, and (3) at all times to act in good faith and be loyal to his principal. A breach of any of those duties is a tort, and the principal can recover for any proximate damage. It is well established that an agent must obey to the letter all instructions of his principal, unless the act commanded is illegal or immoral, or unless obedience is prevented by unavoidable necessity. It is no defense to a non-performance or to a deviation that he exercised reasonable care and skill in the course pursued, and acted in good faith, thinking he was doing that which was best for the interests of his principal. He has no discretion in the matter, and adopts a contrary course at his own risk. Accordingly, where an agent, thinking that the price was about to drop, did not follow his instructions to buy, he was compelled to make good for the loss sustained by the subsequent rise.1 It is also well established that in executing his instructions, and in discharging the duties of his agency, it is his duty to exercise a reasonable degree of skill and care, such as is reasonably demanded by the nature and circumstances of the transaction. He is presumed to warrant that he possesses such a degree of skill. If the principal knows of the deficiency, the presumption is rebutted. The agent does not undertake an absolute liability. He is not liable for loss due to his mistake of law or fact. Accordingly, where an agent is instructed to loan money, he is liable if he shows such a lack of skill or care as to loan upon worthless or imprudent securities.* But illustrations of holding an agent liable in tort for a breach of the third class of duties are not so numerous. This principle is well established that it is the duty of an agent at all times to act with the best of good faith in the furtherance of his principal's business. The relation is called a fiduciary one. This principal relies upon the fidelity and intergrity of the agent; and the latter should act with the single purpose of advancing his principal's interest, and should never take any position which is antagonistic to those interests, or use his position and authority for his own private gain. Generally this breach of the duty affords a remedy in equity, where the 'Heineman v. Heard, 50 N. Y. 27 (1872). 'Pelt v. School Dis., 24 Vt. 297. 'Whitney v. Martine, 88 N. Y. 535. agent has represented two principals, or where he acted both for himself and his principal-e. g., where, being ordered to sell, he became the purchaser-a bill in equity is brought to rescind. Where the agent has misused his position for his own private profit, equity makes him a constructive trustee. Yet there are cases when the agent has received no profit, and where there is no contract to set aside; but because of a breach of his fiduciary duty, a loss has occurred to his principal. It is well settled that such a breach of a fiduciary duty is a tort. Accordingly, where an agent, with authority to lend, loaned money to an irresponsible person, in an enterprise in which he was interested, he was compelled to make good the loss. In a recent case, an agent disregarded instructions to renew a lease, and instead got others to try to obtain it for his own profit; the principal was compelled to renew the lease at a higher rental, and recovered from the agent. Acker, Merrall & Condit Co. v. McGaw, 68 Atl. (Md.) 17 (1907). In another case, a chairman of a commission, authorized to buy land, gave information as to proposed purchases to a third person, who bought up the land. The chairman was made liable. These cases are perfectly sound. They generally state that a breach of a fiduciary duty is a tort. Of course, if this is intended to cover breaches of duty on the part of an express trustee, it is inaccurate. Such cases are, however, of interest in causing the query whether there has been or is likely to be a tendency in courts of law to recognize and compensate for the breach of duties which may at one time have been recognized by courts of equity alone. 'First Nat. Bank of Sturgis v. Reed, 36 Mich., 263 (1877). 5 City of Boston v. Simmons, 150 Mass. 461, 1890. Also Hegenmeyer v. Marks, 37 Minn. 6 (1887); Talbot v. Scripps, 31 Mich. 268. RECENT CASES. ACCORD AND SATISFACTION. State Statutes An agreement to accept less than the liquidated amount of a debt in discharge thereof will operate as a good accord and satisfaction if actually executed by payment of agreed amount. Phinzy v. Bush, 59 S. E. Rep. 259. Sup. Ct. of Ga. This decision is based upon a Georgia statute, Civil Code (1895), sec. 3735, and is directly contra to the common law rule of Foakes v. Beer, 9 App. Cas. 605. Common Law The following states have also abolished the common law rule by statute: Alabama-Ala. Code (1876), sec. 2774; Mississippi abolished the rule by decisions without statute -Clayton v. Clark, 74 Miss. 499. By decision, also, in some states a parol debt may be satisfied if the creditor gives a receipt in full for a partial payment-Green v. Langdon, 28 Mich. 221; Lemprey v. Lemprey, 29 Minn. 151; Gray v. Barton, 55 N. Y. 68; Ferry v. Stephens, 66 N. Y. 321. AGENCY. Pallure to A lessee's agent with instructions to renew the lease of his principal, renewed it for himself at the old rental. He finally assigned the lease to his principal, but the landRenew Lease: lord refused to consent. This agent procured others to try to obtain the lease for him. Due to their high offer, the principal was finally compelled to pay an additional thousand dollars rental in order to procure the lease for himself. Held, The agent was Tort: Breach of Fiduciary Duty CONFLICT OF LAWS. liable in tort for the loss sustained by the principal-See note, page. Telegraph A, in Tennessee, sent a telegram to B, in Arkansas, to call B to the funeral of a near relation. The telegram was lost in transit before it reached the state of Arkansas. B sued the telegraph company in Arkansas to recover damages for "mental anguish." Held, though he could not recover under the Arkansas statute, which gives a cause of action to the addressee when the negligence is shown to have occurred within the state, yet he could recover under the decision of the courts of Tennessee, which permit the addressee of a telegram to sue on the contract of the sender, to recover for mental anguish. Supreme Court of Arkansas, in W. U. T. Co. v. Woodward, 105 S. W., 578. In determining what law governs, the ultimate criterion is the intention of the parties, expressed or implied (II Wharton, Conflict of Laws, 1056, 3d ed.). When the addresse of a telegram recovers on the theory that the contract was made for his benefit, it might be said that the parties must have intended that the law of the place of delivery should apply. It was so held in Howard v. Tel. Co., 84 S. W., 764 (Ky.); but on the ground that the negligence occurred entirely in Kentucky. But if the recovery is on the contract, it would seem that the place where the negligent act occurred is of no importance in determining what law shall apply. See Tel. Co. v. Cooper, 29 Tex. Civ. App., 591. CONSTITUTIONAL LAW. Police The State Legislature of Texas enacted that the Comptroller of Public Accounts shall issue a permit to apply to the county judge of the proper county for a liquor license; that the applicant must show, among other things, (1) that he is a law-abiding, tax-paying, male citizen of the state of Texas, and (2) that he has been a resident of the county wherein such license is sought more than two years next before the filing of such petition. A, a resident of Arkansas, seeks a mandamus to compel B., the comptroller, to issue to him such a permit, alleging that the above require CONSTITUTIONAL LAW (Continued). ments are unconstitutional under Art. 4, Sec. 2, and Art. 14, Sec. 1 of the Federal Constitution. Held, (1) that the regulation of the liquor traffic is within the police powers of the state with which the above sections were not designed to interfere, and (2) that this discrimination against non-residents was not a mere guise for discrimination, or without good reason. For it is reasonable that they should be residents of the county, so as to be within the jurisdiction at all times for the enforcement of the law, and to enable the character of the applicant to become known in case of impeachment if it be necessary. De Grazier v. Stephens, 105 S. W., 992. A similar case arose in Missouri, in 1843, under Art. 4, Sec. 2, and was then held to be constitutional in Austin v. State, 10 Mo., 591. Liquor dealers, saloon-keepers, hawkers, peddlers, theaters, shows, billiard-table keepers, gamblers, brewers, etc., are within the class subject to such police power. Territory v. Connell, 16 Pac. (Ariz.), 209. So, also, are laundries and professions. Barbier v. Connolly, 113 Fed., 31. However, where such exercise of the police power works a discrimination against the products of another state, as in the "Dispensary Law" of South Carolina, prohibiting a citizen from buying liquor in another state for his own use in his own state, the act is unconstitutional. Donald v. Scott, 67 Fed., 857. The statute providing such regulation may not give to the person whose duty it is to enforce the act an unrestrained will or discretion, but there must be fixed rules by which impartial execution may be secured. Yick Wo v. Hopkins, 118 U. S., 373. Municipal By ordinance duly enacted under the legislative powers conferred by the legislature, B granted to A the street railway franchise, upon certain conditions. A fulfilled the conditions and put the line into operation at a cost of $75,000. Thereupon B proceeded to pass another ordinance, within its legislative power, repealing the first ordinance. A brings a bill to restrain the mayor and council from passing the ordinance, on the ground that it will impair the obligations of his contract and deprive him of his property without due process of law. Held, that though the ordinance would be unconstitutional, |