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Must obey instructions as to price of sale.

Must use the

same care with the goods as if they were his

own.

Must not grant credit

unless usual in the trade.

Must insure the goods.

Must account faithfully to his principal.

agent. But as such instructions are always applicable only to the ordinary course of things, the agent is authorised to deviate from them in cases of extreme and unforeseen emergency, in the same manner as any unavoidable calamity or overwhelming force will excuse the agent from a strict performance of his duties. The agent is also justified in violating his instructions where they require him to execute any immoral or illegal

acts.

It is the duty of the agent to attend faithfully to the instructions of his principal as to the price of sale. If the price has been limited he cannot depart from it even where he has made advances upon the goods. If no limit has been put, he must act to the best of his employer's interest (a). It is usual, however, when an agent makes advances upon goods to make them on the condition of full power being granted to sell whenever and at whatever price he may deem best for his own security and for the interest of his principal. An agent is bound to ordinary diligence in relation to the property confided to him. When he is entrusted with goods for sale, it is his duty to use the same care over them as if they were his own, and when his orders leave the management of the property to his discretion, he is bound to good faith and reasonable conduct (b).

So as respects the granting of credit; if the goods are habitually sold for ready money, it is the duty of the agent not to sell at credit, and where it is usual to grant credit, he is required to act with reasonable care and prudence in his employment and exercise his judgment after making proper inquiries and taking all necessary precautions. If he shut his eyes against the light, or sell to a person without inquiry, where ordinary diligence would have enabled him to learn the discredit or insolvency of the party, he is not discharged from responsibility (c).

Where goods are consigned to a factor, it is his duty to insure them or to make every exertion to that effect, if he have sufficient effects in his hands to cover the cost of the insurance.

It is the duty of the agent to furnish his principal in all cases with a correct account of the contracts he has made and

(a) Smart v. Sandars, 16 L. J. C. P. 39; Wiltshire v. Sims, 1 Camp. 258. (b) Evans v. Potter, 2 Gallis, Am.

Rep. 13.

(c) Burrill v. Phillips, 1 Gallis, Am, Rep. 360.

generally to account faithfully, at least when called upon, and not to suppress, conceal, or overcharge (a). An agent is always bound to act in the best manner he can for his principal, and in matters which are left to his own discretion he can only act for the benefit of his principal (b).

The duty of the agent is to procure and communicate to General duties of the agent. his principal all necessary information relating to the state of the market, to execute faithfully and promptly his employer's orders, and to consult his interest in all matters referred to the agent's discretion. Finally the law demands of the agent strict morals and good faith and a scrupulous regard to the principal's rights and interests.

FOREIGN LAWS.

to fulfil the

cuse a devia

France. An agent is bound to fulfil his instructions so long Agent bound as he remains charged with them, and is liable to damages if principal's he does not execute them. He is bound to complete what he instructions. has commenced previous to the death of his principal if there be danger in the delay. The agent must conform literally to the What will exinstructions he has received, and will answer for all the conse- tion from quences where he has not attended to such instructions, unless instructions. he can prove that by fulfilling them to the letter he would have compromised the interest of his principal. If the instructions are that he should act for the best, he should do what the father of a family would have done on such occasion. An agent is not Must give an only responsible for fraud but for the faults which he commits management. in his management. He is bound to give an account of his engagement and to pay to the principal whatever he has received in his character as agent. He would be responsible for the party whom he substitutes when he had no power to substitute any one, when the power was conferred on him without naming any person, and when the person chosen was evidently incapable or insolvent. In all cases the principal would have a right against the agent's substitute. When several agents are deputed by the same deed there is no joint respon

(a) Thom v. Bigland, 8 Exch. 725; The Earl of Hardwicke v. Vernon,' 4 Ves. 511; Crosskey v. Mills, 1 C. M. & R. 298; Boorman v. Brown, 2 Per. & D. 401; Topham v. Braddick, 1 Taunt.

572; Pearse v. Green, 1 J. & W. 135;
Collyer v. Fallon, 1 Turn. & Russ.
471.

(b) Pariente v. Lubbok, 20 Beav.
588.

account of his

Must perform the act him

self.

Must conform to the usages of trade.

When he may depart from his instructions.

sibility between them. An agent is bound to pay interest upon any sum which he may have employed for his own use and upon what he owes to his principal (a).

Portugal. It is the duty of the agent, in the execution of his authority, to conform to the usages of trade. If he departs from them he becomes liable to damages. He is bound to execute the business entrusted to him promptly. He is not bound to accept an agency; but if he has accepted it he must execute it. The agent must not depart from his instructions except in the following cases-1, when it is for the real advantage of the principal; 2, when injury would result from delaying the execution; 3, when the deviation is immaterial; or 4, when he can obtain the approval of his principal. The silence of the principal to an intimation of such a deviation is equivalent to an approval of the same. To determine how far the agent has transgressed his authority it should be considered -1, whether the agent has departed from his instructions to the injury of the principal; 2, whether by so doing the principal has derived any benefit; 3, whether the execution of the order might not have been injurious to the principal, having regard to the time or to any change unforeseen by the principal; and 4, whether the agent was not able to execute his instructions in the manner prescribed by the principal. In the first case the agent would be responsible for the losses he may have caused. In the second case he is not liable. In the third and fourth, if a delay was not likely to cause any injury, the agent would be bound to ask and wait for further instructions. And if the business cannot be delayed without injury to the principal, Not responsi the agent should act according to his own discretion. The agent who has bestowed every care to the execution of his instructions is not responsible for the non-fulfilment of the object, or for the bad result of the business entrusted to him, nor for the insolvency of those with whom he has contracted when at the time he contracted with them they were solvent, provided in all cases there was no fraud on his part. The agent charged to forward a cargo of merchandise is responsible for the good quality of such when he shipped them. But if he was employed to execute the order in a different port through another

ble for the

success of the business.

(a) French Civil Code, §§ 1991-1997.

agent, the latter is responsible towards the first agent, who must prove to his employer that he has faithfully transmitted his orders (a).

Prussia. A person who accepts an agency ought to execute it himself. He ought to manage the affairs of his principal as his own. If extraordinary cases should present themselves, he ought to communicate them at once to his principal; and he must be ever ready to afford to the principal any information he may request.

agent may

Spain. The commission agent is at liberty to accept or Commission refuse the agency; but if he does refuse it he ought to advise refuse the the principal by the first post, and in case of negligence he will agency. be liable to damages. The agent who refuses to undertake the business entrusted to him is still bound to use every diligence for the preservation of the object until another agent has been named. And the agent who undertakes to execute an authority is bound to go through with it when he has once begun it. When, however, funds are necessary the agent is not bound to execute the authority, even though he may have accepted it, unless the principal supplies him with sufficient funds, and he may even suspend all further proceedings when he has used up the funds he has received. But if he has engaged to advance the necessary funds he must execute the agency, unless the employer is in a state of insolvency. When without any lawful cause the agent refuses to execute the agency he has accepted or to complete what he has commenced, he is responsible for damages. It is the duty of the agent to follow the instructions of his principal. He should consult him in matters which have neither been foreseen nor provided for; and if he cannot consult him he should do precisely the same as if the business were his own. He should never depart from the instructions of his principal, and if he deems it necessary to deviate from them, he should advise him of it by the first mail. He should give the principal every information on the state of the negotiation and advise him immediately of the conclusion of the business. The agent should himself execute the agency, and he cannot delegate it to another without the previous consent of the principal. He must render to his principal

(a) Portuguese Code, $$ 804-817.

Must consult his principal for things not foreseen.

an account of all the transactions with all the vouchers attached to it (a).

Agent not

liable where he contracts in the name of his principal.

Liable if he

contracts in his own

name.

SECTION VII.

LIABILITY OF THE AGENT.

The agent is not personally liable where he contracts in the name and on account of his principal. To relieve himself from all personal liability in a contract the agent must draw up the instrument in a manner that it shall purport in its face to be the contract of the principal, though he may sign it by his authority as agent (b).

But if the agent does not disclose the name of his principal, or contracts in such a form as to make himself personally responsible, he cannot afterwards, whether his principal were or were not known at the time of the contract, release himself from that responsibility (c).

Even where it is shown that the party acted as agent for other persons, that will not diminish his liability on the agreement executed in his own name; it will only show that it is also binding on others by reason that the act of the agent in signing the agreement in pursuance of his authority is in law the act of the principal (d). So where an agent makes a sale on behalf of an unnamed principal, and signs the note in his name as broker, evidence might be produced of a custom of trade that where a broker purchases without disclosing the name of his principal he was liable to be looked to as the purchaser (e). No person in fact in making a contract is considered to be the agent of another unless he stipulates for his principal by name, stating his agency in the instrument which he signs (f). Thus if a person signs a note or draws or accepts a

(a) Spanish Code, §§ 120-140.

(b) Deslandes v. Gregory, 29 L. J. Q. B. 93; Downman v. Jones, in error, 7 Q. B. 103; Schmaltz v. Avery, 16 Q. B. 659; Jenkins v. Hutchinson, 13 Q. B. 744; Amos v. Temperley, 8 M. & W. 805; Gaby v. Driver, 2 Y. & J. 555; Spittle v. Lavender, 5 Moore, 270.

(c) Higgins v. Senior, 8 M. & W.

845; Jones v. Littledale, 6 Ad. & El. 486; Magee v. Atkinson, 2 M. & W. 440; Hanson v. Roberdean, Peake, 163; Kendray v. Hodgson, 5 Esp. 228; Reid v. Dreaper, 30 L. J. Ex. 268; Wake v. Harrop, 30 L. J. Ex. 273.

(d) Franklyn v. Lamond, 4 C. B. 637. (e) Humfrey v. Dale, 7 E. & B. 266. (f) Stackpole v. Arnold, 11 Mass. Am. R. 29.

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