SECTION 2. What Remedies an Agent has for his own Indemnity. A factor may also have a right to enforce the payment of money to himself, in opposition to the claim of the principal. When a factor has a lien upon goods intrusted to him for sale, and which he has sold pursuant to that trust, the lien attaches upon the price,(A) and the factor has a right to receive it for his own indemnity. This doc[*365] trine is laid down by Lord Mansfield, in a case *in which the right of the debtor to be discharged by paying the factor was discussed; and it is there declared, that in an action brought by the factor, to compel the payment of the price of goods sold by him, it would be no defence for the buyer, that as between him and the principal, he, the buyer, ought to have the money, because the principal is indebted to him in more than that sum; for the principal himself can never say that, but where the factor has nothing due to him.(a) And in an action brought by a broker, for the price of timber sold for his principal, upon which the broker had a lien for sums advanced, Eyre, C. J., would not allow the defendant to set off a debt due to him from the principal.(b) This right equally exists where the factor has a lien upon the goods, though he be unless it appear that he actually demanded the goods before the right of stoppage in transitu was at an end; (Waring v. Cox, 1 Campb. 369, supra ;) but it has been held, that if the factor make such demand before the right of stoppage in transitu is determined, he will be entitled to bring trover in his own name for the goods, although the bill of lading was endorsed to him without consideration, and for the mere purpose of enabling him to exercise that right. Morison v. Gray, 2 Bing. 260."|| Granger, 5 Barn. & Ald. 27. Warner v. (A) ||Ante, 129. Hudson v. M'Kay, 1 Mees. & Wels. 591. (a) Drinkwater v. Goodwin, Cowp. 256. (b) Atkyn v. Amber, 2 Esp. Cas. 493. not answerable to his principal for the debt.(c) And is not affected by the circumstance of his being known at the time of the contract to be an agent.(d) It seems therefore to follow, that if the debtor, after no. tice and tender of an indemnity by the factor, should nevertheless pay the principal, that he would be answerable to the factor in an action. But he does not seem bound to refrain from paying *the principal with- [*366] out an indemnity from the agent.(e) The right which is founded upon the factor's lien for his advances, does not depend upon his being answerable to the principal for the debt. But upon this latter ground also, independent of the former, an agent acting upon a del credere commission, has a lien upon the price of the goods sold by him. Therefore, as between the buyer and an agent of this description, the latter is considered as the sole owner of the goods.(f) It has been determined that an agent's parting with the lien which he has upon goods in his possession, is a good consideration for a promise, by a third person, to pay him the amount of his lien. And that such an undertaking need not be in writing, as being for the debt of another. Castling, a policy broker, who had a lien upon certain policies for his acceptances, gave up those policies to Aubert, (c) Cowp. 256. (d) Ib. and 2 Esp. Cas. 493. In the latter case, that the sale was by the plaintiff, as agent of H. the sale-note expressed (e) Cowp. 255. Whether the debtor can insist upon such indemnity from the agent, appears to be questionable. Mr. Russell says; "It appears to be taken for granted, that in such cases third parties are entitled to an offer of an indemnity from the factor; and it is believed that in practice, such indemnity is usually offered; although whether this be absolutely essential in order to the security of the factor's rights, may admit of question." Fact. & Brok. 247. And Mr. Justice Story, (Agency, § 409,) observes, "It seems at least a questionable point, whether there is any principle of Jaw, which positively requires such an indemnity, or offer of indemnity."|| (f) Per Chambre, J., 3 Bos. & Pull. 489. The misapprehension of the author upon this subject has been noticed and corrected, ante, p. 111, (3), and p. 286.4 to whom the principal had transferred his business upon Aubert's verbal undertaking to lodge money for the payment of Castling's acceptances. An action was held to be sustainable upon this undertaking: and the transaction. being considered as a purchase of Castling's interest [*367] in the policies, was held to *have no relation to the Statute of Frauds, which avoids parol promises to pay the debt, or answer for the default or miscarriage of another.(g) (A) (g) Castling v. Aubert, 2 East, 325. A detriment sustained by the party to whom the promise is made, at the instance of the other, is as good a consideration as a direct benefit to the party promising. (A) | A commission merchant having received goods to sell at a certain limited price, and made advances upon them, has a right to reimburse himself by selling them at the fair market price, though below the limit, if the consignor has refused upon application, and after a reasonable time, to repay the advances. Wilde, J. delivering the opinion of the court said; "The jury were instructed, that a commission merchant having received goods to sell at a certain limited price, and made advances upon such goods, had a right to reimburse himself by selling such goods at the fair market price, though below the limit, if the consignor refused upon application and after a reasonable time, to repay the advances.' The rule of law thus laid down, appears to the court to have been stated with perfect accuracy, and with all the qualifications which are applicable to the defendants' right of sale, as claimed by them on the evidence. The law appears to be well settled, both in England and in this country, that the pledgee of personal property, after the debt becomes due, may sell without a judicial process and decree of foreclosure, upon giving reasonable notice to the debtor to redeem. The principle thus settled seems to be founded in good sense, and may be essentially necessary to enable the pledgee to avail himself of his pledge in a reasonable manner for the discharge of his demand. In the present case, the defendants were not merely pledgees, but they were expressly authorized to sell the property consigned to them, and thereby to reimburse themselves for their advances. There was no time limited with in which the sale was to have been made. The defendants were therefore bound by their acceptance of the consignment to wait a reasonable time, if the sale could not be made for the price limited, although by the delay their security might be impaired. But after such a reasonable time had elapsed, and a demand had been made upon the plaintiff to repay the money advanced, and he had refused so to do, he had no further power, by any principle of law or justice, to control the defendants' right of sale to their prejudice. Such a power would be inconsistent with the understanding of the parties, as it must be presumed to have been when the advances were made; and it would enable the plaintiff to im air the defendants' security at his own will and pleasure for an unlimited time if he were disposed so to do. To sanction such a right would operate injuriously on the interest of consignees, and would check the continuance of those large advances by the aid of which a flourishing trade has been carried on for years past, to the great profit of the mercantile community. For although such advances may sometimes lead to overtrading, and may induce individuals to venture upon rash speculations, yet it cannot be doubted, that on the whole they have contributed to the increase of the wealth and prosperity of the country. The principle therefore, involved in this case is of great importance, and has been considered by the court with great care." Parker v. Brancker, 22 Pick. 40. In Pothonier v. Dawson, Holt's N. P. Rep. 383, Gibbs, C. J. said; "Undoubtedly as a general proposition, a right of lien gives no right to sell the goods. But when goods are deposited by way of security, to indemnify a party against a loan of money, it is more than a pledge. The lender's rights are more extensive than such as accrue under an ordinary lien in the way of trade. These goods were deposited to secure a loan. It may be inferred, therefore, that the contract was this:- If I (the borrower) repay the money, you must re-deliver the goods; but if I fail to repay it, you may use the security I have left, to repay yourself.' I think, therefore, the defendant had a right to sell." Whenever a consignment is made to a factor for sale, the consignor has a right generally, to control the sale thereof according to his own pleasure, from time to time, if no advances have been made, or liabilities incurred on account thereof; and the factor is bound to obey his orders. If however the factor make advances, or incur liabilities on account of the consignment, by which he acquires a special property in the goods, then the factor has a right to sell so much of the consignment as may be necessary to reimburse such advances, or meet such liabilities, unless there is some agreement between himself and the consignor which contracts or varies this right; and this right of the factor to sell to reimburse himself applies with stronger force to cases where the consignor is insolvent, and where, therefore, the consignment constitutes the only fund for indemnity. Brown v. McGran, 14 Peters, 479, 495. 2 Kent's Comm. 639. That the factor's lien does not preclude him from availing himself of his personal remedy against his principal, see ante, 127, n. (a.) Beckwith v. Sibley, 11 Pick. 482. As to waiver by factor of the personal responsibility of principal, see Consequa v. Fanning, 3 Johns. Ch. Rep. 600; Oakley v. Crenshaw, 4 Cow. 250; Robertson v. Livingston, 5 Cow. 473. If a factor employ a sub-agent for the purpose of carrying into effect the orders of his principal, and such sub-agent, by neglecting the instructions of the factor, commits a breach of duty for which the factor is compelled to answer his principal in damages, the factor will be entitled to recover from the sub-agent the damages which he has so sustained. Mainwaring v. Brandon, 8 Taunt. 202; Kuss. Fact. & Brok. 256; ante, 32, n. (2).|| CHAPTER VI. OF THE PERSONAL LIABILITY OF AGENTS. SECTION 1. 1. Ir now remains to be considered in what cases the agent is personally liable to those who deal with him. In general, where a man is known, to act merely as an agent, where the principal is known, and there is no express engagement by the agent, nor circumstances from which it may be inferred, that the credit is given to him, the rule is, that the agent, though the person immediately making the contract, is not subject to personal responsibility. It is laid down by very old authority, that if a servant by express words do not bind himself, if the thing come to the use of his master, he is not liable at all.(a) No rule of law, it has been said, is better ascertained, or stands upon a stronger foundation than this, that where an agent names his principal, [*369] the principal is responsible and not *the agent.(b) And factors or brokers, therefore, acting for their principals, under a proper authority, are not, in general, liable in their individual capacities. (c) The question, indeed, is simply to whom the credit is given, whether to the principal alone, or the agent alone, or to both jointly ;(A) as ap (a) Goodhaylie's case, Dy. 230 a. (b) Per Lord Erskine, Ex parte Hartop, 12 Ves. 352. (c) Per Lord Ch. Talbot, 3 P. Wms. 279. || Ante, 246, 247.|| (A) || Beebe v. Robert, 12 Wend. 417. The rule which prevents a vendor, who has given credit to an agent, from afterwards resorting to the principal for payment, does not apply to a case in which the vendor, at the |