Responsibility of Agents to Principals. remitting when exchange was favourable, cannot | on account of B. & Co. Held, that C. & Co. be recovered. Pope et al. v. Barret, 1 Mason, 117. 114. Where goods are consigned to an agent or factor to sell, and he refuses to render any account of the sales, the most unfavourable presumptions which the evidence admits of, ought to be made against him, in respect to the amount and value of the goods sold and unaccounted for. Ibid. were entitled to recover damages for the breach of their orders; that their not having given notice to B. & Co. that the paper would be considered as sold on their account, did not injure their claim; and that the amount of the damages may be determined by the positive and direct loss arising plainly and immediately from the breach of the orders. Bell et al. v. Canningham, 3 Peters, 69. to orders, and sells the same without signifying any intention of disavowing the acts of the agent, an inference in favour of the ratification of the acts of the agent may fairly be drawn by the jury. But if the merchandise was received by the principal, under a just confidence that his orders to his agent had been faithfully executed, such an inference would be in a high degree unreasonable. Ibid. 81. 115. A factor cannot pledge the goods of his 120. If the principal, after a knowledge that principal for his own debt; and if he does, the his orders have been violated by his agents, reprincipal may, after demand and refusal, main-ceives merchandise purchased for him contrary tain trover for them against the pawnee. Van Amringe v. Peabody, 1 Mason's C. C. R. 440. 116. An agent or factor who is ordered by his principal to ship goods in his possession, has no right to retain more than enough to secure such lien as he may have. He may do this, and obey the order as to the balance, or he may send the whole to his consignee at the place directed, with orders to deliver them to the principal on being paid. But if he retain the whole, because of a lien to a small amount, and any loss results from his breach of orders, he is responsible. Jolly v. Blanchard, 1 Wash. C. C. R. 252. 117. If one merchant is in the habit of effecting insurance for another, and neglects, when ordered to have one effected, he is himself answerable for the loss, as if he had insured, and is entitled to the premium. If he can excuse himself for not obeying his orders, he is answerable for nothing; if he cannot, he is so for the whole. Morris v. Summers, 2 Wash. C. C. R. 203. 118. If an agent or factor sell the goods of his principal, and has not received payment, or having received it, invests it in property for the use of his principal, or marks and puts it away as his, the latter has a right to it, and is entitled to all the profits made from it, either as against the factor or his general creditors. Aliter, if the factor applies the money to his own use, charging himself with the same in account with the principal. Hourquebie v. Girard's Adm'r., 2 Wash. C. C. R. 212. 121. The faithful execution of orders which an agent or correspondent has contracted to execute, is of vital importance in commercial transactions, and may often affect the injured party far beyond the actual sum misapplied. A failure in this respect may entirely break up a voyage and defeat the whole enterprise. Speculative damages, dependent on possible, successive schemes, ought not to be given in such cases; but positive and direct loss, resulting plainly and immediately from the breach of orders, may be taken into the estimate. Ibid. 85. 122. The jury, in an action for damages for a breach of orders, may compensate the plaintiff for actual loss, and not give vindictive damages. The profits which would have been obtained on the sale of the article directed to be purchased, may be properly allowed as damages. Ibid. 86. 123. If the factor has transmitted to his principal an account of sales, mentioning the names of the purchasers and times of credit, the burden of proof lies on the principal to show that the purchasers were not in good credit, or reputed to be so. Gerbier v. Emory, 2 Wash. C. C. R. 413. 125. A factor to whom a general shipment has been intrusted as security for advances, expenses, and commissions, has a special property only in the shipment; and subject to his lien for these charges, the owner may dispose of them as he pleases, and his conveyance will carry the right. The Packet, 3 Mason, C. C. R. 334. 119. C. & Co., merchants of Boston, owners of a ship proceeding on freight from Havana to the consignment of B. & Co. at Leghorn, and to 124. An attorney is answerable in damages return to Havana, instructed B. & Co. to invest to a party, if without his authority he appear to the freight, estimated at four thousand six hun-a suit. Field v. Gibbs, 1 Peters' C. C. R. 455. dred petsos, two thousand two hundred in marble tiles, and the residue, after paying disbursements, in wrapping paper. B. & Co. undertook to execute these orders. Instead, however, of investing two thousand two hundred petsos in marble, they invested all the funds which came into their hands in wrapping paper, which was received by the captain of the ship, and was carried to Havana, and there sold on account of C. & Co. and produced a loss, instead of the profit which would have resulted had the investment been made in marble tiles. As soon as information of the breach of orders was received, C. & Co. addressed a letter to B. & Co., expressing in strong terms their disapprobation of the departure from their orders, but did not signify their determination to disavow the transaction entirely and consider the paper as sold 126. If a factor, with a del credere commission, sells the goods of his principal, and takes negotiable securities in payment, and fails before they become due, having assigned those securities to his assignees, in favour of his creditors, and the assignees, when the notes fall due, receive the money; the principal may recover the amount from such assignees, subject to a deduction of the lien of the factor for his commissions and charges. Thompson v. Perkins et al., 3 Mason's C. C. R. 232. Responsibility of Agents to Principals. 127. The principal is entitled to recover, wherever he can trace his own property, and distinguish it or its proceeds, from the mass of the property of his factor. Ibid. 128. If it has been sold, and notes taken in payment, and these can be specifically ascertained, they remain the property of the principal, and he has a right to receive them, discharging at the same time any lien of the factor. Ibid. 129. It makes no difference whether the factor be with or without a del credere commission. Such a guarantee is not a direct, original liability to the principal, in the same way as if the factor was himself the purchaser, excluding the liability of the original purchaser; it is merely an undertaking to pay, in case there should be a failure of payment by the buyer. Ibid. 130. The relinquishment of commissions on an agency does not release the agent from his responsibilities to his principal. Walker v. Smith, 1 Wash. C. C. R. 152. 131. An agent who does not comply with instructions is liable for the loss incurred thereby; although the services were gratuitous. Ibid. 132. An agent, if a discretion is given to him, is bound to act to the best of his judgment for the benefit of his employer. If his orders be positive, he must either refuse to act, or he is bound to a strict observance of them. He cannot exercise his own judgment, but as to the best mode of executing the orders according to their terms. If the orders are ambiguous, the construction must be taken most strongly against him who gave them. Kingston v. Kincaid, 1 Wash. C. C. R. 453. 133. A consignee who receives merchandise from a supercargo for sale, and who knows that the supercargo is the agent of others, contracts a debt with the shipper for this portion of the cargo; and the supercargo has no right to appropriate the same to the payment of his private debt. Merrick v. Bernard, 1 Wash. C. C. R. 479. 134. Where the insurance has been imperfectly made and not altogether neglected, it may be questioned whether the agent is liable for more than damages equal to the chance of indemnity, which would have been afforded by the exact execution of the order. De Tastett v. Crousillat, 2 Wash. C. C. R. 132. 135. A claim of damages against an agent, upon the orders of his principal, which he is charged with neglecting, is not entitled to favour if the order has been couched in doubtful terms. Ibid. to him for others, upon a contract for their sale or delivery made with the principal, the remedy is by action against the principal and not against the agent. Ibid. 140. Where an agent voluntarily disobeys the instructions of his principal, and converts to his own use a sum of money belonging to his principal, to which a definite and specific destination is given by the principal, and the article into which the agent is directed to convert the money, subsequently acquires great additional value, the agent is not only responsible for the money so misapplied, with legal interest, but is accountable for the article into which it ought to have been converted. Short v. Skipwith, 1 Brock. C. C. R. 103. 141. A, the principal, residing in Europe, directs his agent, B, residing in Virginia, by letter bearing date December 20th, 1787, to convert the funds in his hands belonging to his principal, into certificates, which B fails to do. In the spring of 1788, B determines to relinquish the agency, and places A's funds in the hands of C, except a certain sum which is not accounted for. C invests the funds in certificates, according to previous instructions: Held, that B is chargeable with the certificates which he ought to have purchased with the remaining funds, at the rate at which C purchased the certificates in 1789. But he is accountable for the certificates, with their legal interest only, and not with the certificates into which the interest might have been annually converted. Ibid. 142. An agent who, in his character of agent, collects a debt due to his principal, and retains it by contract of loan with his principal as debtor, entered into before the debt was collected, is not entitled to commissions. Ibid. 143. In 1807, a contract was entered into between L. T., widow and administratrix of S. T., and R. T., a daughter of S. T., of Maryland, and T. M. B., of Virginia, whereby L. T. as administratrix of her deceased husband, and as guardian of her infant children, and Ŕ. T., in her own right constituted T. M. B. their agent, and stipulated to convey to him a moiety of certain military lands in the state of Ohio, on certain conditions expressed in the contract. This contract, after reciting the title of S. T. to those lands which had been patented, and the descent of them to his widow and children, proceeds thus:-"and whereas a considerable portion of the said land has been sold for the payment of taxes, now, therefore, in consideration of the said T. M. B. undertaking to redeem the portion of the land so sold for the payment of taxes, or so much thereof as he can redeem at his own proper cost and trouble, and also obtaining the necessary title-papers to the said 4000 acres, or so much thereof as he can obtain at his own proper cost and trouble, which he doth hereby undertake to do; then, in that case, she, the said L. T., in her own right, and also as guardian of E. T. and S. T., jr., and also the said R. T., do agree to convey to the said T. M. B. one-half of the said 4000 acres of the said land, or one139. Where the agent has acted illegally, in half of all which shall have been redeemed, as refusing to deliver goods sent by his principal | being sold, and also the half of that unsold." 136. If a reasonable diligence has been used to effect insurance for his principal, he is not liable. Ibid. 137. The neglect of an agent to give notice to his principal, that he could not effect insurance as ordered, will make him liable. Ibid. 138. An action cannot be maintained against the agent for transactions with his principal through him, unless the agent has specifically agreed he will be answerable for his principal. Bradford v. Eastburn, 2 Wash. C. C. R. 219. Responsibility of Agents to Principals. 145. An agent does not bear the same relation to his principal, that the holder of a bill of exchange does to the drawer and endorser. The same negence or omission that will deprive the holder of all recourse against the drawer or endorser, will not subject the agent to his principal, to the extent of the bill placed in his hands for collection. Ibid. 146. The relation of principal and agent is governed by the general rules of law, founded on reason; and if the principal suffers through the remissness or negligence of the agent, the actual loss sustained by the principal, in consequence of such misconduct, is the standard by which his damages must be measured. Ibid. 147. The factor to whom commercial paper is transmitted for collection, but who does not make himself a party by putting his name upon the paper, is an ordinary agent, governed by the law which regulates the relations between principal and agent generally, and is not subject to the law merchant, which relates to bills of exchange. Ibid. The contract contained a covenant on the part of L. T. and R. T., that E. T. and S. T. jr., should, when they respectively attained their majority, ratify the agreement, and make the necessary conveyances. In 1812, R. T., L. T., and E. T., the last two being then of full age, conveyed to the said agent the one moiety of the 4000 acres of land, which belonged to the heirs of S. T., deceased. The effect of this conveyance was to execute the contract of 1807, not only as to themselves, but as far as respected the interests of S. T., then a minor. The parties filed their bill to set aside the contract of 1807, and also the deed of 1812, in the execution thereof, on the ground that the contract was entered into, and the deeds were executed, through mistake and ignorance on the part of the plaintiffs, and misrepresentation on the part of T. M. B. On the trial, it was fully proved that R. T. was a minor when the contract of 1807 was entered into. The court held, 1. That with respect to the contract of 1807, that being the commencement of the defendant's agency, the onus probandi was on the complainants to show the misrepresentation and concealment, and without such proof adduced by them, the court could not interpose its authority to set aside the contract. 2. That the effect of that contract was to bind the widow according to its terms; i. e., to the extent of her dower right, and the infants to the extent of the equity it gave for a liberal remuneration of services performed. 3. But the question arising under the deeds of 1812 was a different one. So far as they could be considered a mere confirmation of the contract of 1807, which had been made for them by their mother, to the extent above expressed, they are binding on R. T. and E. T., though not upon their infant brother. But so much of the contract of 1812 as bound them farther than that 150. A merchant of Philadelphia sent a cargo of 1807, was not the confirmation of an old, but of coffee to his correspondent in Bordeaux, and the execution of an original contract. The prin- wrote as follows: "make sale of the coffee imciples of equity do not annul such a contract, mediately on arrival, and forward the returns in executed between an agent and his principals, the articles mentioned by the same vessel." It but they subject it to a searching and rigorous was the duty of the agent to sell immediately examination. They require the agent to show on arrival, no matter at what loss, if he could, that he withheld no information which his agency or as soon as he could. He had no right to exenabled him to acquire; that his communica-ercise a discretion. Courcier v. Ritter, 4 Wash. tions to his principals were full, as well as fair. If he cannot do this, the contract must be set aside. Teakle v. Baily, 2 Brockenb. C. C. R. 43. 144. A factor sells bills of his principal to C, on a credit, and takes in payment a note of a previous date, having three months to run, drawn by A, and endorsed by B, who were in good credit at the time; the note was not endorsed by C. Held, that the circumstances of the note being of previous date, and not endorsed by the purchaser of the bills, are not of themselves, per se, sufficient to outweigh the fact that the drawer and endorser of the note were in good credit at the time of the transaction. Nor was it of any consequence that the name of C, the purchaser, was not communicated by the factor to his principal, the principal not having required it. Hamilton et al. v. Cunningham, 2 Brockenb. C. C. R. 350. VOL. I -11 148. Where a commission merchant takes a bond for a simple contract debt due to him for goods sold on commission, and includes in the same instrument a debt due to himself, he makes himself answerable to his principal for the amount of the goods, as he has deprived him of the means of pursuing his debtor, by extinguishing the debt due by simple contract. Jackson v. Baker, 1 Wash. C. C. R. 394. 149. Plaintiff employed defendant to sell goods on commission. He sold part, and intrusted the other part to his clerk, who ran away with the goods and money. The agent was liable for the money received by him, and lost by the perfidy of his clerk. Read v. Bertrand, 4 Wash. C. C. R. 514. C. C. R. 559. 151. If an agent disobeys his orders, and makes a full and candid statement to his principal of all the facts upon which his judgment was exercised, and the latter makes no objection to his conduct, or is silent respecting it, this amounts to a recognition of it, and will excuse the agent. Ibid. 152. Where an agent has in part executed the orders of his principal, and the principal receives the proceeds of the property sold by him, in obedience to his orders, this does not excuse the agent for violations of orders as to other property. Ibid. 153. A purchase by an agent will be deemed a purchase for his principal, in a court of equity, unless the agent has openly and notoriously, and with full notice to his principal, discharged himself from his agency. Baker v. Whiting, 3 Sumner's C. C. R. 476. Agents, Witnesses for or against Principals.-Agreement. General Principles. 4. Agents, Witnesses for or against Principals. 154. In an action against a principal, on a contract made by an agent, such agent is competent to prove the contract, and the instructions from his principal. Livingston v. Swanwick, 2 Dall. 300. island. Lodge's Lessee v. Lee, 6 Cranch, 237; 2 Cond. Rep. 358. 9. A bond, executed in pursuance of articles of agreement, may, in equity, be restrained by those articles. Finley v. Lynn, 6 Cranch, 238; 2 Cond. Rep. 358. 10. A person who, upon receiving an assign155. The declarations of an agent for the de- ment of a share of property, as a security for a fendant, by whose orders insurance had been debt, agrees to comply with the contract of the made by his principal, were not admitted to assignor, with a joint owner of the property, is prove the liability of the principal for the pre-bound to fulfil that contract, although it exceed mium. Millick et al. v. Peterson, 2 Wash. C. C. 2. Contracts are always to be construed with a view to the real intentions of the parties. United States v. Grundy, 3 Cranch, 337; i Cond. Rep. 554. in amount the value of the property transferred to him. Clarke's Ex'rs. v. Carrington, 7 Cranch, 308; 2 Cond. Rep. 507. 11. A simple contract is not merged in a sealed instrument, which merely recognises the debt, and fixes the mode of ascertaining the amount. The Bank of Columbia v. Patterson, 7 Cranch, 299; 2 Cond. Rep. 501. 12. Whenever a corporation aggregate is acting in 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 upon them by law, and all benefits conferred at their request, raise implied promises, for which an action lies. Ibid. 13. The technical doctrine that a corporation could not contract, except under its seal, or in other words, could not make a promise, if it ever had been fully settled, must have been productive of great mischief. Indeed, as soon as the doctrine was established, that its regularly appointed agents could contract without seal, it was impossible to support it; for otherwise those who trusted the corporation would be without remedy. Ibid, 14. Where A. agreed with the managers of a lottery to take 2500 tickets, giving approved security on the delivery of the tickets, which were specified in a schedule, and deposited in books of 100 each, thirteen of which books were received and paid for by him, and the residue superscribed by 3. A contract is a compact between two or more persons, and is either executory or executed. An executory contract is one in which a party binds himself to do or not to do a parti-him with his name, and endorsed by the agents cular thing. A contract executed is one in which the object of the contract is performed, and this differs in nothing from grant. Fletcher v. Peck, 6 Cranch, 87; 2 Cond. Rep. 308. 4. Under a fair construction of the constitution, grants are comprehended under the term contracts. Ibid. 5. Where a law is in its nature a contract, where absolute rights have vested under that contract, a repeal of the law cannot divest those rights. Ibid. of the managers, "purchased and to be taken by A.," and on the envelope, covering the whole, "A.'s 12 books:" held, that the property in the tickets changed when the selection was made and agreed to, and that they remained in the possession of the vendors merely as collateral security. Such a contract is not divisible. Thompson v. Gray, 1 Wheat. 75; 3 Cond. Rep. 490. 15. An article purchased in general terms, from many of the same description, if after6. A party to a contract cannot pronounce his wards selected and set apart with the assent of own deed invalid, although the party be a sove-the parties, as the thing purchased, is as comreign state. A grant is a contract executed. pletely identified and as completely sold, as if it Ibid. had been selected previous to the sale, and spe7. If a suit be brought to set aside a convey-cified in the contract. Ibid. 83. ance obtained by fraud, and the fraud be clearly proved, the conveyance will be set aside as between the parties; but the rights of third persons, who are purchasers without notice, cannot be disregarded. Ibid. 16. A deed was made for lands in Virginia, in the year 1779, rendering an annual rent in current money of Virginia for ever. Held, that the rent is to be paid in specie, or other money equivalent thereto at the date of the deed; and the same is not to be reduced by the scale of depreciation existing at the date of the deed. Faw v. Marsteller, 2 Cranch, 10; 1 Cond. Rep. 8. A grant of land, by name, in the Potowmas, superadding the courses and distances of the lines thereof, which was reserved, was found to exclude part of the island, passed the whole | 337. General Principles. 17. When the acts stipulated to be done, are to be done at different times, the stipulations are to be construed as independent of each other. Goldsborough v. Orr, 8 Wheat. 217; 5 Cond. Rep. 412. 18. The title and claim of Charles, Lord Baltimore, his heirs and representatives, to the quitrents reserved by the proprietary of the late province (now state) of Maryland, was extinguished by the agreement between the heirs, devisees, and personal representatives of the said Lord Baltimore, and of his son and heir, Frederick, Lord Baltimore, made in 1780, and confirmed by an act of parliament in 1781. Cassel, Adm'r. &c. v. Carroll, 11 Wheat. 134; 6 Cond. Rep. 249. 19. The construction of a written agreement is a question of law for the determination of the court, upon which it is bound to instruct the jury. Peisch v. Dickson, 1 Mason, 9. 24. Where there is an agreement to deliver a note, with such endorsers as the other party should approve, and the party would avail himself of an offer to deliver, instead of an actual performance, it is incumbent on him to show that he had offered the note signed, and ten |dered himself ready to have it endorsed by such person as the other party should name. Latapee v. Pecholier, 2 Wash. C. C. R. 180. 25. The great rule of interpretation with respect to deeds and contracts is, to put such a construction upon them as will effectuate the intention of the parties, if such intention be consistent with the principles of law. Hollingsworth v. Fry, 4 Dall. 345. 26. If the time for payment is made a substantial part of the contract, and not a mere formal circumstance, and enters into the essence of the contract, it must be observed. Ibid. 27. If the agreement admits of another con and must not be guilty of gross delay. Ibid. 28. A law annulling a conveyance is unconstitutional, because it is a law impairing the obligation of contracts, within the meaning of the constitution of the United States. Fletcher v. Peck, 6 Cranch, 87; 2 Cond. Rep. 308. 29. The separation of Alexandria from Virginia did not affect existing contracts between individuals. The insurance upon buildings in Alexandria did not cease by the separation, although the company by which the insurance was made, could only insure buildings in Virginia. Korn v. The Mutual Insurance Society, 6 Cranch, 192; 2 Cond. Rep. 345. 20. One proposed to the plaintiffs, in the pre-struction, the party must use legal diligence, sence of the defendant, to ship them a quantity of sugars belonging to him, in the defendant's hands, on receiving an authority to draw on plaintiffs for the amount. It was thereupon agreed that the shipment should be made, and the authority given, on the defendant's engaging by letter to ship the sugars. The owner of the sugars accordingly wrote a letter to defendant, directing him to ship the sugars on board such vessel as he should direct, consigned to plaintiffs, and handed the letter to defendant, who wrote "agreed to" under the letter and signed his name, upon which the authority to draw was given. Held, that defendant's undertaking was an original part of the transaction, and that the consideration, moving from the plaintiffs to the owner of the sugars, which was not expressed in the letter, might be proved by parol, as it did not contradict the written agreement; and that the undertaking of the defendant required no consideration moving from plaintiffs to him to support it. Rabaud et al. v. D'Wolf, 1 Paine, 580. 30. A contract, in writing, for the sale of certain specific goods, examined, marked, and set aside for the purchaser, is not opened by an agreement on the part of the vendor, to replace or make a deduction for such as, on examination, may have been broken. Calhoun v. Vecchio, 3 Wash. C. C. R. 165. 31. One who has agreed to pay a sum of money out of funds expected to come into his hands, is not excused from the payment, if, by his own default, the funds were not received. Blight v. Ashley, 1 Peters' C. C. R. 15. 21. The owner of the sugars becoming insolvent, wrote to the plaintiffs, informing them that the vessel in which he had intended to take the sugars would not do so, and that they were at 32. Where two of three assignees of a bankliberty to make any arrangements with defend-rupt enter into an agreement in the absence of ant, for the interest of all concerned: Held, that this was an authority under which the plaintiffs could nominate a vessel, and that the defendant was bound to ship the sugars in such a vessel, if he should not choose to appoint another. Ibid. 22. The sugars were to be shipped at New York to Marseilles: Held, that the measure of damages, as against defendant, was the value of the sugars in New York at the time of his refusal to ship them according to his contract. Ibid. 23. He who sells property on a description given by himself, is bound in equity to make good that description; and if it be untrue in a material point, although the variance be occasioned by mistake, he must still remain liable or that variance. M'Ferran v. Taylor & Massie, 3 Cranch, 270; 1 Cond. Rep. 525. the third, the contract is not binding upon him, unless he had previously authorized, or subsequently ratified it. Ibid. 33. The agreement of the assignees of a bankrupt to give a preference to a particular creditor, is not valid without the assent of the commissioners and a certain proportion of the creditors. Ibid. 34. The agreement of the parties may control the general operation of law, but the agree ment must be clear, and incapable of doubtful import. Johnson v. The Lady Walterstorff, 1 Adm. Decis. 215. 35. An agreement in the shipping articles, that no officer or seaman should demand or be entitled to his wages, or any part thereof, until the return of the vessel to the port of outfit, does not amount to a guarantee on the part of the mariner, that the vessel shall arrive; but is |