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tainer must be proved: it is the duty of an agent to buy for his principal in the most beneficial manner, and, as in all other cases, to exercise proper skill, &c.; and he will be liable whenever he deviates from his orders in price, quality, or kind: Paley, 28 to 36; plt. should, therefore adduce his proof accordingly. Where an agent grossly misstates the quantity of goods purchased by him, and such misstatement be productive of loss to his employer, he would be liable, though the agent thereby derived no additional pecuniary benefit: Ld. M. of London v. Brandon, Holt. 438, 441, n. Where plt. ordered tobacco of the best quality, and the agent purchased it of so inferior a description that a person to whom it was shipped brought an action against plt. and recovered, it was held, that plt. could recover from his agent the whole damage that he had suffered by his neglect, Mainwaring v. Brandon, 8 Taunt, 202; and it will be no waiver of principal's right though he may have received a bought note not stating it to be of the best quality: ib. Plt. may show he sustained a loss in consequence of deft. himself being the seller. 3 Chit. Com. L. 217.
In Action for not Insuring, after proof of the retainer, plt. should prove his interest in the property to be insured : Purk Ins. 4; Delaney v. Stoddart, 1 T. R. 24. The agent must insure where it has been the course of dealing to do so; or where the principal, having effects in the agent's hands, orders him to insure, or where bills of lading are sent to the agent conjointly with orders to insure, he must do so, though his principal have mortgaged to him the subject of insurance, and the mortgage have become absolute. But he is not bound to insure, at all events, but only to do his utmost to effect.it: Smith v. Lascelles, 2 T. R. 187. And, in all cases where the agent makes an ineffectual insurance, or neglects to insure, he will be liable in the same manner as if he had been
the insurer himself: Mal. 86; Beawes, 43; Delaney v. Stod[*697 dart, 1 T. R. 24; Wallace v. Telfair, 2 T. R. 188, n. *There
fore, if an agent omit to insert a clause usual in the policy, and loss ensue by the omission, he will be liable for the sum directed to be insured, deducting the premium: Mallough v. Barker, 4 Camp. 150. But he will not be liable to an action for neglecting to insert in a policy a liberty to carry simulated papers not mentioned in his written instructions, though it may have been verbally communicated to him that simulated papers were to be used in the voyage, Fomin v. Oswell, 3 Campb. 357; or wording the clause so as not to include certain goods intended to be insured, he will be liable: Park v. Hammond, 2 Marsh, 189; 6 Taunt. 495, s. c.
In Action for not giving Plaintiff Notice of a fact known by the deft., and which ought to have been communicated to plt., and for the want of which a loss is sustained to plt., he should prove deft.'s knowlege of that fact, and that it was a material one: such as proving a sale by deft. without information to plt., 13 Vin. Ab. 4; or a bill of exchange remitted to deft., Beawes, 431; or a notice of insolvency of an underwriter, 2 Camp. 546, n. As to attorney not giving notice, post. The retainer should be proved.
In an Action against a gratuitous Agent, as he is not liable for a mere nonfeasance, plt. must prove he has been guilty of misfeasance : 2 Ld. Raym. 909; Elsee v. Gatwaed, 5 T. R. 143; Wilkinson v. Coverdale, 1 Esp. Rep. 74. As, if an attorney should undertake gratuitously to conduct a cause, and he did so conduct it, plt. should show he did it in such a gross manner as to create the loss. And, in all cases, in order to render a gratuitous agent liable, plt. should show he did not pay the same attention to the trust as he reasonably would for himself in his own affairs : 3 Chit. Com. Law, 215. Mixing money of principal's with his own at bankers, and they fail, he is liable for the loss : 1 J. 8. W. 241; Robinson v. Ward, R. & M. 274; Maud v. Waterhouse, 2 C. l. P. 579. The retainer should be proved.
Damage.] The plt.'s damage must be proved. In general, it is not necessary to prove special damage, and, if plt. makes out his case, he will be entitled to nominal damages at all events. If plt, seeks to prove an actual damage, a loss of some legal benefit should be proved; proof of the loss of a probable advantage is not sufficient: Webster v. De Tastet, 7 T. R. 157; Park. In. 303. ante. The plt. will be entitled to recover the amount of any direct loss by the goods, Moll. 327, Cr. J. 265, as well as any sums expended by him in reparation to others, and the measure of damages ought to be the damages and costs recovered in the action against the plt.: Mainwaring v. Brandon, 8 Taunt. 208. But the debt to be recovered from the agent is the balance only of money received by him after deducting all just allowances, though not pleaded by way of set-off, 4 Burr. 2133; but he will not be liable for interest if he applies the money to his own use, or even mixes it up with his own at his banker's : Rogers v. Taylor, 2 Esp. Rep. 704; Robinson v. Ward, R. & M. 274. And, where the goods are forfeited by the agent's making improper entries at the Custom House, the extent of his liability is said to be the cost price of the goods, if to be exported, and the sale price if they are to be imported, with reference to the country where the seizure is made: Mal. Lex. Mer. 83; 13 Vin. Ab. 4. In actions against agents for not insuring, ante 68, plt. can only recover according to his interest, which, as well as the loss, he must establish in proof: Park. Ins. 4; Delaney v. Stoddart, 1 T. R. 24; post, “ Policy." The amount of the damages which the plt. will be entitled to recover, will be the sum directed to be insured, deducting the premiums paid: Mallough v. Barker, 4 Camp. 150. As to what deft. may deduct, post, 71.
Evidence for Defendant. In general, deft. should be prepared to disprove plt.'s case. A variance* in the declaration, in stating the retainer as an abso- *701 lute when it was only a conditional one, would be ground of nonsuit: Lopes v. De Tastet, 1 B. 8. B. 544. Deft. may show in defence, that he performed his employment; and, if the terms of the employment are in dispute, he should be prepared to prove the nature of thern. In an action for misconduct, he may show he pursued the express orders of
his principal, or, in the absence of them, that he pursued the usual and accustomed course of trade and dealing, proving the same. Proving his good intentions towards principal forms no defence, ante, 67.
" It is a settled rule of law that an agent shall not be allowed to dispute the title of his principal, and that, therefore, he shall not, after accounting with his principal and receiving money in that capacity, afterwards say that he did not do so, and did not receive it for the benefit of his principal, but for that of some third person:" per Abbott, C. J., Dixon v. Hamond, 2 B. 4. A. 313.
Fraud.] Deft., in an action for misconduct, may also show that the transaction in which he was employed was fraudulent, but he must show that it was part of the employment to defraud; as in the case of defrauding by the non-payment of duties, for, if he merely show that the duties were not paid, it will be insufficient: Catlin v. Bell, 4 Camp. 184; see Wilkinson v. Loudonsack, 3 M. f. S. 117; Gross v. La Page, Holt, 105-7.. He may also show that his compliance with his instructions would have been a fraud upon others: as, where an agent was employed to sell certain articles, and the condition of the sale purported that the highest bidder should be the purchaser, but the agent had private instructions not to sell under a certain sum, in which case it is sufficient if he sold to the highest bidder, though for less than the sum to which he was secretly limited: Bezwell v. Christie, Cowp. 395.
That Principal has adopted his Acts.] Though deft. has not complied with plt.'s instructions, he may show plt. has adopted his acts, as where deft. has put out plt.'s money on interest, and he receives it for any time with knowledge, it will be an affirmance of the transaction, and will exempt the agent from liability if the security fail: 2 Freem. R. 48; Eg. Ca. Abr. 708. When an agent deviates from his instructions, the principal has a right, as soon as he knows of the deviation, to repudiate what he has done; but, if he does not mean to accede to what has been done, he is bound immediately to take steps to notify his dissent: per Bayley, J., 2 D. &. R. 270. Deft. may also show that plt. did not disclose to him facts within his (principal's) knowledge, and whereby the loss occurred: Mayhew v. Eams, 3 B. &. C. 603.
In an Action for not Accounting, ante, 67, he should be prepared to disprove plt.'s case, and show he has duly accounted.
In an Action to recover the Proceeds of Goods or moneys received by him, ante, 87, he should disprove, if possible, the plt's case as to the receipt of such moneys. He may prove the transaction is not closed, ante, 67; he may show he has paid over the money to another person, and that he had authority to do so; the onus lies upon him to show that he had such authority : Smith v. Watson, 2 B. & C. 407, 3 D. 8. R. 751. Deft. may also prove that he remitted the money received by him for his principal in the usual way, and it will be a sufficient defence, therefore, where plt, engaged deft. to receive money for him, and remit a bill for it by post, which the agent did, but the latter was suppressed
and the money upon the bill received at the bankers by some unknown person, the agent is discharged: Warwick v. Noakes, Peak. Rep. 68. And, where a steward, in receiving rents, takes bills from persons of reputed credit, yet he will be excused, though the bills be dishonoured and the money lost: 3 * Alk. 480. And where a banker, [*711 who had received bills of exchange for the purpose of procuring payment, took the acceptor's check instead of money, yet he was held discharged, though the check was dishonoured, as it appears that the banker only pursued the usual course of business: Russell v. Hankey, 6 T. R. 12. Where an agent takes securities, they must be such as principal can avail himself of by reasonable diligence and without risk or trouble: 1 Buls. 104; Yelv. 202; Winch. 53. And an agent resid. ing abroad may show that money was subsequently depreciated by edict, &c.: Moll. 424. As to fraud, ante, 70.
In an Action for Purchasing damaged Goods, he may show that the goods were damaged after, and not before, he bought them: Mal. 84.
In Actions for Selling on Credit, or to a Person unfit to be trusted, or for the Loss of Goods, the evidence for deft. may be collected from ante, 67-8.
In an Action for not Insuring, it will be no defence to him to show that he was directed to insure against British capture, for that will not render the whole insurance void, but only pro tanto: Glaser v. Cowie, 1 M. & S. 52. Deft. may show that his promise to insure was merely gratuitous; and that he never acted on such promise; for, if he once actually interfered, he would be liable for gross neglect, Wilkinson v. Coverdale, 1 Esp. Rep. 74, Marsh, 208; or that he had no effects in his hands, and declined from the first, Smith v. Lascelles, 2 T. R. 189; and, if bills of lading were consigned to him, that he refused at the same time to accept them, ib. In an action against an agent for a failure in making assurance, as it is a principle that he stands in the place of an insurer, he is entitled to any defence which an insurer could have made, Park, 4, Delaney v. Stodart, 1 T. R. 24; he may, therefore, avail hiinself of a deviation in the voyage, ib., 22; or the illegality of the intended insurance, Webster y. De Tastet, 7 T. R. 157. And, if the neglect complained of be, that by the non-communication of a material fact to the underwriters in making the insurance, the policy was avoided, the agent may make it appear, by way of defence, that the fact, if communicated, would have made it impossible to get the insurance effected : Anon. Cor. Chambre, J. York Sum. Assizes, 1808.
· In an Action against a gratuitous Agent, he should be prepared to show he was one, and that he acted to the best of his knowledge, and was not guilty of gross negligence, but took the same care of plt.'s goods as of his own; and, where a general merchant entered goods of his own and other person's at the Custom House, under a wrong entry, whereby they were forfeited, it was held that he was not liable, as he received no
reward, and was not of a profession that implied skill: Shiells v. Blackburne, 1 H. Bl. 158.
To reduce damages, deft. is entitled to deduct all just allowances which he has a right to retain out of the sum demanded, without pleading, or giving notice of set-off: Dale v. Sollet, 4 Burr. 2133. As to such charges, see ante, 69. Deft. may as well prove, if possible, he acted with an intention of benefiting principal, but this will not afford a ground for defence, ante, 67.
Actions AGAINST AGENT, BY THIRD PERSONS.
Form of Remedy, Pleadings, and Precedents, 72.
where Principal unknown, ib.
an Authority Principal had no right to give, 74. for Money had and received, ib.
for Torts, ib.
where Principal was unknown, ib.
an Authority Principal had no Right to give, ib.
Form of Remedy, Pleadings, and Precedents.
THERE is no peculiar form of remedy in an action at the suit of third persons against an agent, he being liable only as a principal, and not as agent: consequently, there are no forms of pleadings or precedents. For those relative to attorneys, auctioneers, bailees, carriers, and other such particular agents, see those titles.
Evidence for Plaintiff. In Action against Agent Contracting on his own Account.] The proofs relative to the subject matter of the action in this, as well as the other following actions against agents, will be similar to those against other parties in general. Plt. should show that the dest. personally contracted, either by parol or under seal, for the performance of the agreements in his own name; and deft. will, in general, be responsible,