By statute law the person in whose name goods are ship ped is deemed true owner. upon them in immediate reference to the sale, according to usage, the auctioneer should become a pawnbroker, and advance money on the goods by way of loan, and in the character of pawnee instead of seller, he has no lien in the goods. By the statute law of New York, of Rhode Island, and of Pennsylvania, passed in 1830 and 1831, the above rules of common law are changed; and it was enacted that the person in whose name goods were shipped should be deemed the owner, so far as to entitle the consignee of goods to a lien thereon for his advance and liabilities for the use of the consignor, and for monies or securities received by the consignor to his use. But the lien is not to exist if the consignee had previous notice, by the bill of lading or otherwise, that the consignor was not the actual and bond fide owner. Every factor entrusted with the possession of any bill of lading, custom-house permit, or warehouse keeper's receipt for the delivery of the goods, or with the possession of goods for sale, or as security for advances, shall be deemed the owner, so far as to render valid any contract by him for the sale or disposition thereof, in whole or in part, for monies advanced, or any responsibility in writing assumed upon the faith thereof. The true owner will be entitled to the goods or repayment of the advances, or restoration of the security given on the deposit of the goods, and on satisAuthority not fying any lien that the agent may have thereon. The Act does not authorise a common carrier, warehouse-keeper, or other person to whom goods may be committed for transportation, or storage, to sell or hypothecate the same. Acts of fraud committed by factors or agents, in breach of their duty in that character, are punishable as misdemeanors. It has been held under this Act that a contract of sale by a factor or agent, entrusted with goods for sale, will protect the purchaser, though no money be advanced, or negotiable instrument, or other obligation be given at the time of the sale (a). extended to carriers. American law founded on This Act is founded chiefly upon the provisions of the British English Acts. statute of 6 Geo. 4, ch. 94, passed in 1825, in pursuance of the recommendation contained in the report of a select committee from the British House of Commons of January, 1823. So by the Civil Code of Louisiana, art. 3214, every consignee or commission agent who has made advances on goods consigned to him, or (a) Jennings v. Merrill, 20 Wendell, 1. placed in his hands to be sold for account of the consignor, has a privilege for the amount of those advances, with interest and charges on the value of the goods, if they are at his disposal, in his stores, or in a public warehouse, or if, before their arrival, he can show by a bill of lading or letter of advice, that they have been despatched to him. commission Portugal. The Portuguese law is the same as the French What is a on the constitution of an agency. Every act of trade carried on agent. for the benefit of others is a trading on commission. An agent contracting with third persons in his own name, or in the name of a firm with which he is connected, is a commission agent. An agent acting in the name of his principal is a broker (a). SECTION V. RIGHTS OF THE AGENT. BRITISH LAW. to com The agent has a right to his commission, which is either Agent's right fixed by contract or determined by the usage of the trade, mission. unless he is a mere gratuitous agent, or unless the nature of the service, or the understanding between the parties, repels such a claim (b). Thus, where a person performed work for a committee under a resolution entered into by them, "that any service to be rendered by him should be taken into consideration and such remuneration be made as should be deemed right," it was held that no action would lie to recover a recompense for such work, the resolution importing that the committee were to judge whether any remuneration was due (c). Where, however, the contract is that the amount only shall be fixed by the employer, then the agent may maintain a suit for a reasonable remuneration if none be fixed by his employer (d). muneration. The commission usually consists of a percentage upon the Amount of reactual amount of the value of the business done, or upon the value of the goods sold or bought, or upon the value of the freight of a ship chartered, and is usually paid by the seller of (a) Portuguese Code, §§ 762-772. (b) Eike v. Meyer, 3 Camp. 412; Roberts v. Jackson, 2 Stark. 225. (c) Taylor v. Brewer, 1 M. & S. 290. (d) United States v. M'Daniel, 7 Peter, Am. R. 1. Del credere commission. The service must be legal to enforce the right to remuneration. Agent guilty of misconduct not entitled to goods or by the charterer of the ship. The rate and amount of remuneration or commission is usually regulated by the custom of trade, or of the particular business; but no custom of trade can prevail against an express agreement (a). Where there is a contract on the part of the agent to undertake to guarantee the fulfilment of the contract, or the payment of the goods sold upon the payment to him of a del credere commission, the agent may recover the same, and it becomes due upon his entering into the contract of guarantee (b). To entitle the agent to enforce his claim to a commission the service must be legal. When the contract is either expressly or by implication forbidden by the common or statute law the agent cannot enforce his claim (c). Thus a broker not duly licensed by the mayor and aldermen of the City of London cannot maintain an action for work and labour, and for commission for buying and selling stock (d). An agent who is guilty of gross misconduct in the management of the affairs of his principal is not entitled to his commisremuneration. sion (e). So if a yearly servant be dismissed by his principal The transaction must be completed. Except by usage of trade. before the year expires for such misconduct as will justify his dismissal, the servant is not entitled to any wages for the time during which he has served (f). If the agent perform his duties in so negligent a manner that no benefit results from them he is not entitled to recover either his commission or even a compensation for his trouble (g). That an agent may be entitled to his commission he must have wholly completed the duties required of him, or absolutely concluded the contract which he was contriving to establish, unless by the custom of trade he becomes entitled to a quantum meruit for what he has done where by any cause the duty remained unperformed. Thus it is the usage in the chartering of ships that when a broker has introduced the captain of a ship and a merchant together, and they by his means enter into (a) Bower v. Jones, 8 Bing. 65. (c) Cope v. Rowlands, 2 M. & W. (e) White v. Chapman, 1 Stark. 113; Denew v. Daverell, 3 Camp. 451. (f) Turner v. Robinson, 6 C. & P. 15. (g) White v. Chapman, 1 Stark. 113; Denew v. Daverell, 3 Camp. 451; Hamond v. Holiday, 1 C. & P. 384. some negotiation as to the intended voyage, the broker is entitled com The An agent guilty of fraud towards his principal, or betraying his trust by acting against his interest, will forfeit his claims to a commission (e). The agent has also a right to be reimbursed of all advances, expenses, and disbursements, made on account and for the benefit of his principal, and to interest upon the same (ƒ). The agent has a right of lien over all the goods in his hands belonging to his principal for the balance of his accounts, or for advances made by him to his principal on the credit of goods entrusted to him (g). So bankers have a right of lien on the securities belonging to their customers for their general balance due to them (h). So insurance brokers who have effected a (a) Read v. Rann, 10 B. & C. 438; Burnett v. Bouch, 9 C. & P. 620 ; Broad v. Thomas, 7 Bing. 99. (b) Burnett v. Bouch, 9 C. & P. 620. (e) Brown v. Croft, 6 C. & P. 16. Calton v. Bragg, 15 East, 223. (g) Gardener v. Coleman, 1Burr. 494; Godin v. London Assurance Company, 1 W. Bl. 104; Dixon v. Stansfeld, 10 C. B. 399; Graham v. Ackroyd, 10 Hare, 192; Pultney (Bart.) v. Keymer, 3 Esp. 182. (h) Barnett v. Brandao, 6 M. & G. 666. Agent contracting as policy have a lien upon it for their commission and balance (a), and an attorney has a lien for his general balance or papers of his clients which come to his hands in the course of his professional employment. An agent contracting in his own name for an undisclosed principal may principal may himself sue as principal (b), though the latter also may sue on such a contract in his own name (c). sue as principal. Right to advances and interest. Right of lien for advances. Bailee's lien. FOREIGN LAW. France. The agent has the right to demand the reimbursement of his advances after he has given a detailed account of them, with vouchers as usual. The interest runs from the day he has made them. He may demand to be indemnified of any loss he may have suffered in the execution of the authority without any imprudence on his part, and of all the consequences that may result from what he has done within the limits of his authority. He may also demand a compensation at the rate agreed upon, or such as is usually given, or arbitrators may decide upon the amount. A commission agent who has made advances on merchandises forwarded to him from another place to be sold on account of his principal, has a lien for his advances, interest, and expenses upon the value of the merchandises, if they are at his disposal in his own warehouse, or in a public deposit, or if before their arrival he can show by a bill of lading or carriage note that they have been forwarded to him. If the merchandises have been sold and delivered on account of the principal, the commission agent has a right over the produce of the sale for his advances, interest, and expenses, in preference to the creditors of his principal. Loans, advances, or payments made upon merchandises deposited or consigned by an individual residing in the same place as the agent, will give such privilege to the agent or depositors in case only he has conformed with the requirement of the Civil Code respecting pledges (d). United States.-Every bailee for hire who by his labour and skill has imparted an additional value to the goods has a lien (a) Mann v. Forrester, 4 Camp. 60. 359. (c) Humphrey v. Lucas, 2 C. & K. 152. (d) French Commercial Code, §§ 93 -95. |