General Principles. who undertakes to order the shipment to be made in the name of another person, and declares he has authority from the foreign merchant thus to control and vary their orders, the factor is justified in obeying the new orders, though contrary to the written orders. Manella et al. v. Barry, 3 Cranch, 415; 1 Cond. Rep. 581. 27. The officers of a bank are held out to the public as having authority to act according to the general usage, practice, and course of their business; and their acts within the scope of such usage, practice, and course of business, would, in general, bind the bank in favour of third persons, possessing no other knowledge. Minor et al. v. The Mechanics' Bank of Alexandria, 1 Peters, 46. 36. A factor has the security of the person, as well as a lien upon the goods of his principal, for all advances made on them. But he may waive his right to resort to the person, and an express agreement to that effect will be binding. Peisch v. Dickson, 1 Mason's C. C. R. 9. 37. If he agree that for advances made, “he will hold for reimbursement on the amount and nett proceeds of the goods, which are only considered answerable for said amount advanced," it is a waiver of any personal claim. Ibid. 38. A factor, who sells under a del credere commission, and guaranties the debts, guaranties only the sales and receipts of the money. If, after receiving the money, he purchases a bill from a person in good credit, for the purpose of 28. Where an agent does an act, unauthorized remitting the proceeds pursuant to directions, he by his orders, the principal is not bound to ratify is not answerable for the loss in case the bill is or disavow it, as soon as he is apprized of the protested. If, however, he receives a bill in circumstance; he has a right to deliberate.payment, which he remits, in case that is dishonoured, he is responsible. Muller v. Bohlens, 2 Wash. C. C. R. 378. Ibid. 29. Where the contract was made with the principal, an action will not lie against the agent, who has been merely the organ of communication between the parties, but who entered into no engagement himself. Bradford v. Eastburn, 2 Wash. C. C. R. 219. 30. When a contract is entered into with an agent, who executes the instrument in his own name, without reference to the principal, and all the covenants are made with such agent, the principal cannot sustain an action in his own name upon the agreement. Clark's Ex'rs. v. Wilson, 3 Wash. C. C. R. 560. 31. An agent cannot be required to do what one, concerned as principal, found himself unable to accomplish, without showing that he would have been more successful. Blight's Ex'x. v. Ashley et al., 1 Peters' C. C. R. 15. 32. In the absence of any express agreement, an agent who has the sale and management of lands belonging to absent owners, remitting the proceeds, &c., is entitled to a compensation for his services, in the nature of a quantum meruit. West Jersey Society v. Morris, 1 Peters' C. C. R. 59. 33. The irregularities of an agent, in relation to the disposition of the proceeds of real estate sold by him, will not affect the title of the purchasers. Andrews et al. v. Solomon et al., 1 Peters' C. C. R. 356. 34. In general, an injunction will not be allowed on a decree rendered against an agent, where the principal is not a party to the suit. But if the principal be not himself subject to the jurisdiction of the court, as in the case of a Sovereign state, the rule may be dispensed with. Osborn v. The Bank of the U.S., 9 Wheat. 738; 5 Cond. Rep. 741. 35. Where a factor makes advances, it is legally to be inferred, independent of any actual agreement to that effect, that they were not made without recourse to the principal: the general rule is, that they are made on the joint credit of the fund and the party, and the factor may relinquish his lien on the fund, without at all affecting his personal remedy. Burrell v. Phillips, 1 Gallis. C. C. R. 360. 39. The general rule is, that a factor may sell on credit unless in special cases, or he is otherwise directed; an order by the principal to sell to the best advantage, implies such authority to sell on credit. Gerbier v. Emery, 2 Wash. C. C. R. 413. 40. A recognition of the acts of an agent, by his principal, is equivalent to an original grant of authority. Conn v. Penn, 1 Peters' C. Č. R. 496. 41. If a trustee, executor, or agent, buy in debts due by testator or principal, his cestui que trust, the benefit arising from the same belongs to the principal. Prevost v. Gratz, 1 Peters' C. C. R. 364. 42. No man can compel another to render him acts of friendship, or service of any kind whatsoever, gratuitously, or with a view to compensation. But if a person applied to, consents to render the service, and undertakes the business, he is bound to act in conformity with the terms on which the request was made; and in commercial agencies this rule is strictly enforced. Walker et al. v. Robert Smith, 1 Wash. C. C. R. 152. 43. An attorney, authorized to collect a debt for his principal, cannot commute that debt for one due by himself to the debtor, by the mere operation of exchanging one for the other. The debtor cannot say he has paid his debt to the attorney, by showing an agreement made by the attorney to credit the debtor, and debit himself with the amount which he, the attorney, owes. Kingston v. Kincaid, 1 Wash. C. C. R. 453. 44. If a party knows that A is the agent of several shippers, who had separate interests in the cargo, he cannot take the property of any of them to pay the debt of the agent to him, although he is perfectly justifiable in paying over the money for the use of the principal to the agent. Merrick v. Bernard, 1 Wash. C. C. R. 479. 45. A and B shipped a cargo of goods for C, but consigned them to D, the partner of E. Before the arrival of the goods D died. C be came bankrupt, and the defendant, under a General Principles. power of attorney from E, took possession of them, sold them, and remitted part of the proceeds to E, at the same time informing A and B of his having taken possession of the goods; and when he remitted in part their proceeds to E, he advised A and B of such remittances, who approved of the whole of his proceedings. Held, that the defendant did not become the agent of the shippers, but was the agent of E; and any remittances made to E, of which advice was not given by the defendant to A and B, that they were for the proceeds of the goods, were not a payment to A and B. Holt et al. v. Dorsey, 1 Wash. C. C. R. 396. 46. It has always been deemed proper to hold agents to strict account, in relation to the orders they receive, provided they are expressed in plain terms, and free from ambiguity; and in this respect, the same measure of justice has been dealt out to agents within the United States, acting for persons abroad, as to foreign agents or citizens of the United States. Loraine v. Cartwright, 3 Wash. C. C. R. 151. 47. Where an agent abroad is directed not to sell for less than the first cost and charges, and an invoice accompanies the letter, stating the prices of the articles, and the amount of the charges on the shipments, the price stated in the invoice is the maximum by which he is to be governed. He has nothing to do with the actual cost of the articles. Ibid. 151. 48. If a consignor accepts a consignment, he does it on the terms prescribed by the shipper. He might have rejected it, but he cannot, after accepting it, refuse a compliance with the orders accompanying it. Ibid. 49. The ratification of the acts of an agent, whose acts had been without authority, thus to give validity to such acts, as if they had been strictly authorized in the first instance, may be done not only directly, but by collateral acts, as if the principal, knowing all the circumstances, accept, or even demand the purchase-money for that which the agent sold. Ibid. 50. Where the principal can trace his property into the hands of an agent, or factor, whether it be the identical article which first came into his hands, or other property purchased by the principal for the factor, with the proceeds, he may follow it into the hands of the factor, or of his legal representatives, or his assignees, if he should become insolvent, unless such representatives or assignees should pay away the same before notice of the claim of the principal. Veil et al. v. The Adm'rs. of Mitchell, 4 Wash. C. C. R. 105. 51. Where, by a difference of opinion between the agent and trustees of an estate, who was himself a trustee, the business of the trust could not be done, the circuit court of Pennsylvania ordered the agent to deliver up the papers of the trust, referring to the master to report to the court a fit person to receive the papers. Barings et al. v. Willings and Hare, 4 Wash. C. C. Ř. 248. 53. Questions between principal and agent frequently occur in courts of justice, as to the construction of the orders which are alleged to have been violated, whether they are positive or unqualified, or leave a discretion to the agent. If they are so ambiguous that two constructions may fairly be given to them, every principle of justice demands that the want of precision in the writer should fix the loss upon him, rather than on his correspondent. If the order leaves him a discretion, the law requires nothing but the exercise of a fair and honest judgment. But if the order be free from ambiguity, and is positive and unqualified, it must be rigidly obeyed, if it be practicable; and no motive connected with the interest of the principal, however honestly entertained, or however wisely adopted, can excuse a breach of it. This is a general and well-established principle of law. Courcier v. Ritter, 4 Wash. C. C. R. 551. 54. An agent who is a party to an illegal transaction, and has in his hands the proceeds, may set up such illegality against the action of any party concerned with him. Fales v. Mabury, 2 Gallis. C. C. R. 563. 55. If an agent to collect and receive payment of bills, transmit them to his own private agent to receive the money, and place the amount, when received, to his own private credit, payment to such agent is payment to the original agent, and if there be a failure, it is the loss of the latter and not of the former. This applies with more force, where the money has been drawn by a bill in favour of a third person, which has been accepted before the failure. Ibid. 56. A factor is bound to good faith and reasonable diligence. He cannot pledge the property of his principal for his own debts, but he may do so for duties accruing on the goods, or for other purposes where the usage of the trade allows it. Evans v. Potter, 2 Gallis. C. C. R. 14. 57. Where a factor was authorized to sell goods for a limited price, and he afterwards sold them below that price, and sent an account to his principal of the sales and prices, and authorized him to draw for the balance of the account, and the principal received the account and drew for the balance, and made no objection in his letter, or otherwise, to the conduct of the factor, in his sales: Held, that this conduct amounted to a ratification of the factor's proceedings. Richmond Manufacturing Company v. Starks et al., 4 Mason, 296. 58. In trover, a mere demand and refusal is not, in all cases, evidence of a conversion. Where the demand is made by an agent, and the refusal is for defect of authority in the agent, it is not evidence of a conversion. Aliter, where there is no request to see the authority, and the refusal to deliver the property turns on other and distinct grounds. Watt v. Potter, 2 Mason's C. C. R. 77. 59. If the factor sell, bona fide, the goods of his principal for a valuable consideration, by as52. A deed of an attorney, executed in his signing over the bill of lading, the sale is valid own name, is not the deed of the constituent. against the principal. But such a sale is not Barger's Lessee v. Miller, 4 Wash. C. C. R. 280. | valid, unless the bill of lading for the goods has General Principles.- What Acts of an Agent bind the Principal. been received by the factor. Walter et al. v. Ross et al. 2 Wash. C. C. R. 283. 60. The principal may follow the money in the hands of the purchaser, and if not paid to the factor, he may receive it. lbid. 61. A factor has no property or interest in the goods of his principal, beyond his commissions, and cannot control the right of the principal over them. Ibid. 62. Where an agent of the war department was empowered to make a contract, which reserved no right of ratification to the secretary at war, it was held complete and binding without such ratification. United States v. Tillotson, 1 Paine, 305. 63. The agents of a corporation may be sued in the circuit court of New Jersey, although the corporation may not be suable there. Bonaparte v. The Camden and Amboy Railroad, 1 Baldwin's Rep. 216. 64. The mere relation of agent and principal between parties does not give jurisdiction in equity, unless the case comes under some appropriate head of equity jurisdiction. Baker v. Biddle, 1 Baldwin's C. C. R. 421, 422. 65. Where a special agency has been closed by the parties, either wholly or as to the particular transaction, it is a matter cognisable at law, if the transactions are distinct. Ibid. 66. The possession of goods by an agent is the possession of the principal. Merrill & Foster v. Rinker, 1 Baldwin's C. C. R. 533. 67. The goods of a principal in the hands of an agent cannot be taken in execution for the debts of the agent; or where goods were delivered under a special contract of consignment for their sale or return, on terms stipulated, if the contract was bona fide. Ibid. 68. An agent or factor who accepts bills on a promise to provide funds to meet them, must be put in the same situation as if the funds had been provided. The reimbursement must be at the place of the acceptance of the bills. Bainbridge & Co. v. Wilcocks, 1 Baldwin's C. C. R. 538. 69. Contracts between the agent and his principal respecting the subject of the agency, are watched with the utmost scrutiny by courts of equity; and slight circumstances, showing that the agent has obtained an advantage over his principal, through the knowledge acquired by means of the agency, and not imparted to the principal, will induce the court to set aside the contract. Teakle v. Bailey, 2 Brockenb. C. C. R. 43. 70. Where an insurance was effected by an agent for the benefit of whom it concerned, and a loss was incurred, and the agent brought an action against the underwriters in his own name, for the benefit of the owners of the ship, held, that the underwriters could not set off debts or demands, due from the agent in his own right, against the claim for the loss. Hurlbert v. The Pacific Ins. Co., 2 Sumner's C. C. R. 471. 71. An agent may withhold the delivery of an article purchased by him on credit, until he shall be paid for the same. Matthew's v. Menedger, 2 M'Lean's C. C. R. 145. 72. A factor has a lien for all advances on account of his principal, for balances due, or liabilities incurred. But this lien is special, and connected with the possession of the property. Ibid. 73. If the property be delivered up, the lien is gone. But if the factor still controls the property, the lien is not relinquished. Ibid. 74. An agency, as against an individual, may be proved by his acts and declarations. Piatt v. Oliver et al., 2 M'Lean's C. C. R. 267. 75. A declaration in debt on simple contract is bad, if it allege the defendant promised to pay. The word agreed, instead of promised, should be used. Metcalf v. Robinson, 2 M'Lean's C. C. R. 363. 76. Though the declaration, in other respects, have the form of debt, yet, if it allege a promise, it has the form of assumpsit, and not of debt. Ibid. 2. What Acts of an Agent bind the Principal. 77. The United States are not bound by the declarations of their agent, founded on a mistake of the fact, unless it clearly appear that the agent was acting within the scope of his authority, and had authority, in his capacity of agent, to make such a declaration. Lee v. Munroe, 7 Cranch, 366; 2 Cond.Rep. 531. 78. A public agent, contracting for the use of the government, and by legal authority, is not personally responsible, though the contract be under his seal. Hodgson v. Dexter, 1 Cranch, 345; 1 Cond. Rep. 329. 79. When a collector has given two bonds for his official conduct, at different periods, and with different sureties, a promise by the supervisor to apply his payments exclusively to the discharge of the first bond, although some of the payments were for money collected and paid after the second bond was given, does not bind the United States, and does not amount to an application of the payments to the first bond. United States v. January et al., 7 Cranch, 572; 2 Cond. Rep. 611. 80. A debtor of the United States, who puts evidence of the debts due to himself into the hands of a public officer of the United States, to collect and apply the money, when received, to the credit of such debtor in account with the United States, is not entitled to such credit until the money gets into the hands of a public officer of the United States entitled to receive it. Its being in the hands of an agent of the person, who, at the time the claims were put into his hands for collection, was a public officer of the United States, entitled to receive debts due to the United States, but whose office became extinct before the money was received by his agent, is not sufficient to entitle such debtor to a credit in his account with the United States therefor. U. States v. Patterson, 7 Cranch, 576; 2 Cond. Rep. 617. 81. Navigating under an enemy's license is cause of condemnation, and is closely connected in principle with the offence of trading with the enemy; in both cases the knowledge of the agent will affect the principal, although he may What Acts of an Agent bind the Principal. in reality be ignorant of the fact. The Hiram, 1 Wheat. 440; 3 Cond. Rep. 615. 82. A survey made by a deputy surveyor is, in law, considered as made by the principal surveyor. Craig et al. v. Radford, 3 Wheat. 594; 4 Cond. Rep. 343. had sanctioned. Schimmelpennich et al. v. Bayard et al., 1 Peters, 264. 89. Whatever an agent does or says in reference to the business in which he is at the time employed, and within the scope of his authority, is done or said by the principal, and may be proved as well in a criminal as a civil case, in like manner as if all the evidence applied personally to the principal. American Fur Company v. The United States, 2 Peters, 358. 90. If a party, knowing that his agent is about to procure insurance for him, withheld information for the purpose of misleading the underwriter, it is a fraud which is fatal to the insurance. M'Lanahan v. The Universal Ins. Co., 1 Peters, 170. 83. H., a merchant in Baltimore, consigned a vessel and cargo to W. in Amsterdam, with instructions, showing, that on the failure of procuring a freight to Batavia, or selling the vessel at a price limited, she was to proceed to St. Petersburgh, and there take in a cargo of Russian goods for the United States, but with instructions to the master, committing to him the management of the ulterior voyage. The freight could not be obtained, nor the vessel sold for the price limited; and W. purchased in Amsterdam, 91. The general rule is, that the principal is with the concurrence of the master, a return bound by the act of his agent, no further than cargo of Russian goods, partly with the money he authorizes that agent to bind him, but the of H. and partly with the money advanced by extent of the power given to an agent, is decided himself. On the return of the vessel to Balti-as well from facts as from express delegation. more, H. objected to this purchase at Amsterdam, as being contrary to orders, and gave notice to W. of his determination to hold him responsible for all losses sustained in consequence of the breach of instructions, but received the goods and sold them. W. brought assumpsit against H. to recover the money advanced. Held, 1st, that W. had a demand against the defendant, which could be maintained in this form of action. 2d, That whether or not the plaintiff could be made responsible in any form of action, for the possible loss resulting from the breaking up of the intended voyage to St. Petersburgh, the defendant could not deduct from the plaintiff's demand, in this action, the amount of such loss. Willinks v. Hollingsworth et al., 6 Wheat. 240; 5 Cond. Rep. 79. 84. A cashier of a bank has, prima facie, authority to endorse, on behalf of the bank, the negotiable securities held by it; and any restriction upon this authority must be proved. Wild v. Bank of Passamaquoddy, 3 Mason, 505. 85. A consul is not personally answerable on a contract made in his official capacity, on account of his government. Jones v. La Tombe, 3 Dall. 384; 1 Cond. Rep. 171. 86. A promise by a factor that he would write to his principal to get insurance done, does not bind the principal to insure. Randolph v. Ware, 3 Cranch, 503; 1 Cond. Rep. 608. 87. A recognition of the acts of an agent by his principal, is equivalent to an original authority. Conn et al. v. Penn et al., 1 Peters' C. C. R. 496. In the estimate or application of these facts the law has regarded the public security, and often applies the rule, that he who trusts must pay. So, also, collusion with an agent to get a debt paid through the intervention of one in failing circumstances, has been held to make the principal liable on account of immoral dealing. Parsons v. Armor & Okey, 3 Peters, 413. 92. All contracts made by the authorized agents of a corporation, within the legitimate scope of its institution, are binding upon the corporation. Bank of Columbia v. Patterson's Adm'rs., 7 Cranch, 299; 2 Cond. Rep. 501. 93. Anciently, it seems to have been held, that a corporation could not do any thing without deed. Afterwards the rule seems to have been relaxed, and they were permitted to act in ordinary matters without deed, as, to retain a servant, &c., and gradually this relaxation widened to embrace other matters. At length it seems to have been established, that though they could not contract directly except under their corporate seal, yet they might by mere vote or other corporate act, appoint an agent, whose contracts, within the scope of his authority, would be binding on the corporation. Ibid. 94. Every authority given to an agent or attorney to transact business for his principal, must, in the absence of any counter proof, be construed to be to transact it according to the laws of the place where it is to be done. A sale of slaves authorized to be made in Louisiana by an executrix, must be presumed to be intended to be done in the manner required by the laws 88. It is believed to be a general rule, that an of that state to give it validity; and the puragent with limited powers cannot bind his prin- chaser, equally with the seller, is bound under cipal when he transcends his power. It would those circumstances to know what the laws are, seem to follow, that a person transacting busi-and to be governed thereby. The law will ness with him on the credit of his principal, is bound to know the extent of his authority. Yet, if the principal has, by his declaration or conduct, authorized the opinion that he had given more extensive powers to his agent than were in fact given, he could not be permitted to avail himself of the imposition, and protest bills of exchange, the drawing of which his conduct never presume that parties intend to violate its precepts. Owings v. Hull, 9 Peters, 607. 95. A ratification of the unauthorized acts of an attorney in fact, without a full knowledge of all the facts connected with those acts, is not binding on the principals. No doctrine is better settled on principle and authority than this, that the ratification of the act of an agent previously What Acts of an Agent bind the Principal. unauthorized, must, in order to bind the principal, be with a full knowledge of all the material facts. If the material facts be either suppressed or unknown, the ratification is invalid because founded on a mistake. Ibid. Responsibility of Agents to Principals. it was immaterial whether the judgment paid by the surety was just or unjust, or whether it was obtained by the neglect or fault of A's agent. Ibid. 104. It is true that a copartner may bind his associates in relation to partnership concerns, because each partner is interested in his share of the partnership concerns and effects, and also in the whole. But this principle does not apply to persons acting under a delegated authority, and more especially where the act is not within the scope of his authority. Blight v. Ashley et al., 1 Peters' C. C. R. 26. 96. Municipal corporations, acting within the limits of the powers conferred upon them by the legislature, in the exercise of a special franchise granted to them, and the performance of a special duty imposed upon them, are responsible for the acts and contracts of their agents, duly appointed and authorized, within the scope of the authority of such agents, in the same manner as other corporations and private indi- 105. Courts of equity have decreed a specific viduals are responsible on their promises, ex-performance of an agreement made by a major press and implied. Clark v. The Corporation of part of a corporation, and entered in the corpoWashington, 12 Wheat. 40; 6 Cond. Rep. 425. ration books, although not under the corporate 97. The owner of a vessel is answerable for seal. Bank of Columbia v. Patterson, 7 Cranch, the carelessness or unskilfulness of his master; 299; 2 Cond. Rep. 501. and by the common law nothing can excuse, but the act of God, the king's enemies, or the party complaining. Dusar v. Murgatroyd, 1 Wash. C. C. R. 13. 98. Wherever a corporation is acting within the scope of the legitimate purposes of its institution, all parol contracts made by its authorized agents, are express promises of the corporation, and all duties imposed on them by law, and all benefits conferred at their request, raise implied promises, for the enforcement of which an action will lie. Bank of Columbia v. Patterson, 7 Cranch, 299; 2 Cond. Rep. 501. 99. Where a contract is made for the exclusive use and benefit of a corporation, and by its agent, for purposes authorized by the charter, the jury may legally infer, that the corporation had adopted the contract, and had voted to pay the sum which should become due under the contract; and that the other party had accepted the engagement. Ibid. 100. If the agency is special, every thing is void which may be done, unless in strict conformity with the authority. Ibid. 101. The principal is not bound by any acts of the attorney, unless they are within the scope of his authority. Barger's Lessee v. Miller, 4 Wash. C. C. R. 280. 102. Money paid on account of suretyship for an agent when he was acting for his principal, and within his authority, creates a debt against the principal. Teirnan v. Andrews, 4 Wash. C. C. R. 474. 103. A, of France, appointed B his general agent in the United States, and authorized him, among other things, to dispose of an imperial license, and to reserve to him the commissions on cargoes shipped under the license. A shipment was made by D, who purchased the license of A, and a dispute afterwards arose as to the shipment. D brought a suit against B, the agent of A, for the breach of A's agreement, relative to the consignment, and bail was entered for B; and the bail afterwards having become surety for B in an appeal, was obliged to pay the amount recovered from B by D for the breach of A's agreement. Held, that A was responsible to the surety for the sum paid by him as bail and surety on appeal. The court held that 3. Responsibility of Agents to Principals. 106. A prize agent who pays over the proceeds of the prize, after an appeal has been regularly demanded, does it at his peril, and is answerable therefor. Penhallow v. Doane's Adm'x., 3 Dall. 54; 1 Cond. Rep. 21. 107. He is, however, only responsible for the proceeds which came to his hands, not for the acts of others, being no party to the original tort. Hills v. Ross, 3 Dall. 331; 1 Cond. Rep. 148. 108. An agent is bound to pursue the orders of his principal, and is answerable for any injury consequent on his departing from them, however fair may have been his motives for such departure. Manella v. Barry, 3 Cranch, 415; 1 Cond. Rep. 581. He may 109. A factor is bound to ordinary diligence in relation to the property confided to him; where his orders leave the management of the property to his discretion, he is bound only to good faith and reasonable conduct. lawfully do whatever the course and usage of the trade requires ; and, indeed, unless his orders restrict him, he is bound to conform to this course of the trade. Evans v. Potter, 2 Gallis. C. C. R. 13. 110. He cannot lawfully pledge the property of his principal for his own private debts; but he may lawfully pledge it for the duties accruing thereon, or for any other purposes which the usage of trade sanctions and approves. Ibid. 111. A factor in making sales of goods on consignment, is bound not only to good faith but to reasonable diligence. It is not sufficient that he has been guilty of no fraud, or of no gross negligence which would carry with it the insignia of fraud. He is required to act with reasonable care and prudence in his employment. Burrill v. Phillips, 1 Gallis. C. C. R. 360. 112. He shall not be permitted to sell his own goods and take security, and at the same time sell the goods of his principal to the same party without security; he is bound to exercise at least as much care and diligence as to his fac torage, as to his own private concerns. Ibid. 113. In assumpsit against a consignee of goods, stating the contract to be, "to sell the same and render a reasonable account," damages for not |