Lien on goods for compensa tion. upon the property for his reasonable charges. So a porter or wharfinger, or warehouseman, or any person taking property in the way of his trade or occupation to bestow labour or expense upon it. Mechanics and labourers having a claim to the amount of twenty dollars for labour or material used in the erection of any building have a lien on the building. If goods come to the possession of a person, and he has been at trouble and expense upon them, he has a lien upon the goods for a compensation in one case only, and that is the case of goods lost at sea, and it is a lien for salvage. By the custom of trade an agent may have a lien upon the property of his employer entrusted to him in the course of that trade, not only in respect to the management of that property, but for his general balance of accounts. The usage of any trade sufficient to establish a general lien must, however, have been so uniform and notorious as to warrant the inference that the party against whom the right is claimed had knowledge of it. This general lien may Right of lien may be acalso be created by express agreement, as, where one or more quired by persons give notice that they will not receive any property for the purposes of their trade or business, except on condition that they shall have a lien upon it, not only in respect to the charges arising on the particular goods, but for the general balance of their account. All persons who afterwards deal with the knowledge of such notice, will be deemed to have acceded to that agreement. How far such a notice would avail in the case of persons who, like common carriers and innkeepers, are under an obligation to accept employment in the business they assume, for a reasonable price to be tendered to them, and who had no right to impose any unreasonable terms and conditions upon their employers, or to refuse to serve them, remains yet to be settled by judicial decision. usage or by express agree ment. necessary to Possession, actual or constructive, of the goods is necessary to Possession create the lien; and the right does not extend to debts which the right of accrued before the character of factor commenced, nor where lien. the goods of the principal do not, in fact, come to the factor's hands, even though he may have accepted bills upon the faith of the consignment, and paid part of the freight. The right of lien is also to be deemed waived, when the party enters into a special agreement inconsistent with the existence of the lien, or from which a waiver of it may fairly be inferred; as, when he Granting of credit is a waiver of lien. gives credit by extending the time of payment, or takes distinct and independent security for the payment. The party shows, by such acts, that he relies, in the one case, on the personal credit of his employer; and in the other, that he intends the security to be a substitution for the lien; and it would be inconvenient that the lien should be extended to the period to which the security had to run. The lien is destroyed when a factor makes an express stipulation on receiving the goods to pay over the proceeds. So if the party comes to the possession of goods without due authority, he cannot set up a lien against the true owner; as if a servant delivers a chattel to a tradesman without authority, or a factor, having authority to sell, pledges the goods of his principal. Portugal.—The Portuguese code has the same provisions as the French on the subject (a). Spain. The same law prevails in Spain as in France. Advances made on merchandise consigned by a person residing in the same place as the agent are considered as loans upon the property pledged (b). Agent's duties instructions. SECTION VI. DUTIES OF THE AGENT. BRITISH LAW. The duties of the agent to his principal are primarily deterdetermined by mined by the verbal or written instructions he receives, and in the absence of specific instructions they are implied to be in accordance with the ordinary practice in the business in which he is employed. The first duty of the agent is to give to his principal the free and unbiassed use of his own discretion and judgment, and to exercise good faith and reasonable care and diligence (c). So he cannot engage himself with a third person when he has agreed to give up the whole of his personal services to his principal (d). An agent must be also competent to fulfil a trust reposed in him, and he should not engage in it without Agent must be competent for his duties. (a) Portuguese Code, §§ 49-51. (d) Thompson v. Havelock, 1 Camp. 527. sufficient skill. When doubts are expressed as to whether the agent has exercised a competent skilfulness in the fulfilment of his duties, the best means to adopt with a view to determine the question is to see whether a majority of skilful and experienced agents would have so acted (a). Even where a person acts gratuitously, if he undertakes to do a thing to the best of his skill, and if his situation or profession is such as to imply skill, an omission of that skill is imputable to him as gross negligence (b). business. Must not make himself adverse to his principal. The agent must act according to the accustomed mode of Must act according to the transacting business. Where he is employed generally to do accustomed any act, he is authorised to do it only in the usual way of course of business. Any departure from the established usage and habits of business would subject the agent to the penalty of any accident or loss which might thereby accrue to the principal (c). So if an insurance broker ordered to effect a policy omits to insert in it the usual clauses to cover the vessel or goods from certain risks, he would be liable for any loss accruing from such negligence (d). He must not make himself an adverse party to his principal, unless by previous understanding with him; therefore an agent instructed to sell an article cannot himself be the purchaser of it, nor can an agent employed to purchase be himself the seller (e). Where an agent employed to sell property purchases it himself, he is bound to show that there was no concealment or unfair representation, and that in purchasing himself the same advantages were afforded to his principal as if the property had been sold to a stranger (ƒ). So if an agent employed to purchase becomes the purchaser for himself he is to be considered as a trustee for the principal (g). The agent must not exceed the letter of his instructions. If he does exceed them, he does it at his peril, unless the principal subsequently acknowledges the departure and ratifies the acts of the 63. (a) Chapman v. Walton, 10 Bing. (b) Shiells v. Blackburne, 1 H. Bl. 161; Mainwaring v. Brandon, 2 Moore, 125. (c) Wiltshire v. Sims, 1 Camp. 257; Massey v. Banner, 1 Jas. & Walk. 245. (d) Mallough v. Barber, 4 Camp. 150. (e) Lees v. Nuttall, 1 Russ. & My. 53; Murphy v. O'Shea, 2 Jon. & Lat. (f) Charter v. Trevelyan, 11 Clark (g) Lee v. Nuttall, 2 Myl. & K. 819. Must attend to the terms of his instruc tions. 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). of the agent. The duty of the agent is to procure and communicate to General duties 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. Agent bound to fulfil the principal's cuse a devia France.-An agent is bound to fulfil his instructions so long as he remains charged with them, and is liable to damages if 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 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 . Vernon,14 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; (b) Pariente v. Lubbok, 20 Beav. 588. account of his management. Must perform the act him self. |