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Liability of liable in the event of their non-payment; for, it seems, that to a certain extent he maybe considered the representative of the vendee, in respect of the vendor, and whatever would be required to absolve the vendee himself, is necessary, in order to determine the liability of the del credere agent (c). He is not indeed to be considered as the principal, because he is never responsible in the first instance; but he is a surety, who on the default of the purchaser is liable in all cases to the vendor-principal^).

Agent can- A factor or other agent employed to sell goods bethempur. cannot himself become the purchaser. "And this is founded upon a plain reason; for, even supposing the possibility of his maintaining a strict impartiality between the two opposite interests, yet the employer has not that for which he bargains in the employment, viz. zeal and vigilance for his exclusive advantage" (e). On the same ground, an agent is not justified in depriving his employer of his time and services by devoting them to another (/).

(c) M'Kenzk v. Scott, 6 Bro. P. C. 280.

(rf) See judgment of Lord Ellenborough, C. J., Morris v. Cleasby, 4 M. & S. 566; Koster v. Eason, 2 M. & S. 112; Gurnet/ v. Sharpe, 4 Taunt. 242.

(e) Paley, Pr. & A. 10, (see the cases cited in note to 3d Ed. p. 11.) And see 31 Geo. II. c. 40, s. 11.

(f) Thompson v. Havelock, 1 Campb. 527.

Where goods are consigned to an agent for sale, Principal's it is his duty to account with his principal on awim.f&c. demand for such as are sold, to pay over the proceeds, and to deliver the part remaining unsold (g). The usual remedy formerly was by action of account, and it was doubted whether assumpsit would lie upon a running account, or where the items were numerous (A); but it is now decided that assumpsit may always be maintained upon the balance, however numerous may be the items(i). And assumpsit or debt is the proper remedy where the accounts are closed and a balance agreed upon (&), even if there had been a covenant to account (7). So, assumpsit is the proper remedy to recover back money which has been received by the agent to apply to a particular purpose, where he makes default (m); or where the authority is countermanded before execution (n), whether

(g) Topham v. Braddkk, 1 Taunt. 572; Chedworth v. Edwards, 8 Ves. Jun. 49.

(A) Scott v. M'Intosh, 2 Campb. 238.

(j) Tomkins v. Wiltshear, 5 Taunt..431; S. C. 1 Marsh. 115; Arnold v. Webb, 5 Taunt. 432, n. Paley, Pr. & A. 56. If the accounts are intricate and difficult, and the parties cannot agree to refer, a bill in equity is said to be the most usual and suitable proceeding; Paley, 59: but the principal will not be entitled to relief if the matter can be fairly tried at law; Frietas v. Dios Santos, 1 Y. & J. 574.

(&) Eagle v. Vale, Cro. Jac. 69.

(I) Foster v. Allanson, 2 T. R. 479.

(m) Lincoln v. Topliff, Cro. Eliz. 641; Scott v. Surman, Willes, 404.

(») Taylor v. Lendey, 9 East, 49.

Principal's the purpose for which the money was received,

remedy.

was legal or illegal (o). if the agent sell the goods at an undervalue, the proper remedy is case for the special damage, and not trover to recover the goods themselves(p). But trover is maintainable where the goods have been disposed of contrary to the principal's express directions (cj).

joint Joint factors are liable for each other's acts,

though one carry on the whole business with the

Subordinate principal's knowledge (r). A subordinate agent is liable only to his immediate employer (i).

II. Rights of Agent.

The rights of the agent against the principal may be considered under the three following heads: 1. Reimbursement of all necessary expenses. 2. Commission on the sale. 3. Lien on the property consigned to him.

(o) The general rule is, that, where money has been deposited for an illegal purpose, the application may be countermanded at any time before the money has been actually applied, and the sum may be recovered back in an action for money had and received, (Farmer v. Russell, 1 B. & P. 296, Tennant v. Elliott, 1 B. & P. 3 ;) although the plaintiff would have had no remedy had the application been actually made, (Carman v. Bryce, 3 B. & A. 179.)

(p) Dufresne v. Hutchinson, 3 Taunt. 117.

(q) Powell v. Sadler, Paley Pr. & A. 80; Payne v. Brander, 2 Stark. N. P. C. 568; Syeds v. Hay, 4 T. R. 260.

(/•) Willed v. Chambers, Cowp. 814; Goore v. Daubeny, 2 Leon. 75; Waugh v. Carver, 2 H. Bl. 235.

(*) Cartwright v. Hately, 1 Ves. Jun. 292; Pinto v. Santos, 5 Taunt. 447; Schmaling v. Thomlinson, 6 Taunt. 147.

First. The agent is entitled to be reimbursed Reimburseior all necessary expenses incurred m the execu- penses. tion of his authority; in some cases even where the advance has been made without express directions; for, if the exigency of the particular case has required it, the assent of the principal will be implied from very slight circumstances (t). But in general an unauthorized payment is at the risk of the agent himself, unless the principal subsequently affirm the act(w); and a fortiori the agent has no claim for repayment if the expense has been incurred after express directions to the contrary (x). So, the principal cannot be compelled to repay the advances, where the expense has been occasioned by the negligence or unskilfulness of the agent(^), or where it has been incurred in the prosecution of an illegal transaction, though undertaken at the express request of the principal himself (z).

Secondly, The agent is entitled to commission (a), commi

mission.

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Commis- The amount is either regulated by a particular contract in each particular case (b), or determined by the usage of trade (c), or settled by particular acts of parliament (</). Where there is a particular agreement, it controls the usage of trade; for the maxim is, conventio vincit legem(e); and if by the terms the amount of the commission is to be left to the principal's discretion, the agent cannot sue the principal for any compensation whatever (/). No commission can be recovered where the transaction in which the agent was employed was illegal, as in bargaining for the sale of an office (g), or for the sale of shares in an illegal joint-stock company (A). But if the adventure be subsequently legalized, the agent will not be barred from recovering his commission (i). Where the agent has been guilty of gross negligence in the execution of his authority, he can support no claim

(4) See Paley Pr. & A. 101.

(c) See Eiche v. Meyer, 3 Campb. 412; Cohen v. Paget, 4 Campb. 96; Roberts v. Jackson, 2 Stark. N. P. C. 225; Chapman v. De Tastet, 2 Stark. N. P. C. 294; Broad v. Thomas, 7 Bingh. 99.

(d) See 12 Ann. st. 2. c. 16. s. 2; 31 Geo. II. e. 10, s. 30; 17 Geo. III. c. 26.

(e) Bower v. Jones, 8 Bingh. 65. See 6 T. R. 262.
(/) Taylor v. Brewer, 1 M. & S. 290.
(g) Stackpole v. Earle, 2 Wils. 133. Supra.
(h) Josephs v. Pebrer, 3 B. & C. 639; see Holland v. Hall, 1

B. & A. 53.

(i) Haines v. Busk, 5 Taunt. 521; S. C. 1 Marsh. 191.

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