Right of owner to redeem ; or to recover balance of proceeds. In case of bankruptcy, owner to prove for amount paid to redeem, or for value of goods, unredeemed. That nothing herein contained shall prevent such owner as aforesaid from having the right to redeem such goods or documents of title pledged as aforesaid, at any time before such goods shall have been sold, upon repayment of the amount of the lien thereon, or restoration of the securities in respect of which such lien may exist, and upon payment or satisfaction to such agent, if by him required, of any sum of money for or in respect of which such agent would by law be entitled to retain the same goods or documents, or any of them, by way of lien as against such owner, or to prevent the said owner from recovering of and from such person with whom any such goods or documents may have been pledged, or who shall have any such lien thereon as aforesaid, any balance or sum of money remaining in his hands as the produce of the sale of such goods, after deducting the amount of the lien of such person under such contract or agreement as aforesaid: Provided always, that in case of the bankruptcy of any such agent the owner of the goods which shall have been so redeemed by such owner as aforesaid shall, in respect of the sum paid by him on account of such agent for such redemption, be held to have paid such sum for the use of such agent before his bankruptcy, or in case the goods shall not be so redeemed the owner shall be deemed a creditor of such agent for the value of the goods so pledged at the time of the pledge, and shall, if he shall think fit, be entitled in either of such cases to prove for or set off the sum so paid, or the value of such goods, as the case may be (a). The words of the statute, "entrusted with the goods or documents," are intended to give validity to pledges of documents entrusted to the factor by his principal, not to pledges of documents created by the factor himself. Therefore an entrusting with the bill of lading for the purpose of sale of goods is not an entrusting with the dock-warrant, which represents those goods, notwithstanding that the possession of the bill of lading enables the holder of it to obtain possession of the dock-warrant. Is is not enough to show that the plaintiff empowered the factors to possess themselves of the warrant whenever they chose. It must be shown that he really intended the factors should be possessed of them at the time they pledged them, or it must be (a) 5 & 6 Vict. c. 39, s. 7. shown that he meant them not only to have the power the possession of the bill of lading would give of getting the warrant when they liked, but to exercise it by obtaining it whenever they in their discretion might think fit (a). A contract made with an agent for the pledge of goods will be valid as against the principal though the person dealing with the agent knows him to be only an agent in respect of the goods pledged, provided that the person so dealing acts bond fide and without notice that the agent is acting malá fide and beyond his authority. But to deprive the pledgee of the protection of the Act he must be fixed with knowledge that the agent is so acting as above stated, and no mere suspicion will amount to notice; nor will the knowledge that the agent has power to sell the goods constitute notice that he has not power to pledge them (b). FOREIGN LAWS. At common law the agent has no right to pledge the United States.-The factor may sell and bind his principal, but he cannot pledge the goods as a security for his own debt. The principal may recover the goods of the pawnee, goods of his and his ignorance that the factor held the goods in the cha- principal. racter of factor is no excuse. The principal is not even obliged to tender to the pawnee the balance due from the principal to the factor; for the lien which the factor might have had for such balance is personal and cannot be transferred by his tortious act, in pledging the goods for his own debt. But though the factor cannot pledge the goods of his principal as his own, he may deliver them to a third person for his own security, with notice of his lien and as his agent to keep possession for him. So if a factor, having goods consigned to him for sale, should put them into the hands of an auctioneer, or commission merchant connected with the auctioneer in business, to be sold, the auctioneer may safely make an advance on the goods for purposes connected with the sale, and as part payment in advance, or in anticipation of the sale, according to the ordinary usage in such cases. But if the goods be put into the hands of an auctioneer to sell, and, instead of advancing money (a) Close v. Holmes, 2 M. & Rob. 23; Hatfield v. Phillips, 9 M. & W. 647; 14 M. & W. 665. (b) Navulshaw v. Brownrigg, 2 De G. Mac. & G. 441. By statute law the person in whose name goods are ship ped is deemed true owner. upon them in immediate reference to the sale, according to usage, the auctioneer should become a pawnbroker, and advance money on the goods by way of loan, and in the character of pawnee instead of seller, he has no lien in the goods. By the statute law of New York, of Rhode Island, and of Pennsylvania, passed in 1830 and 1831, the above rules of common law are changed; and it was enacted that the person in whose name goods were shipped should be deemed the owner, so far as to entitle the consignee of goods to a lien thereon for his advance and liabilities for the use of the consignor, and for monies or securities received by the consignor to his use. But the lien is not to exist if the consignee had previous notice, by the bill of lading or otherwise, that the consignor was not the actual and bond fide owner. Every factor entrusted with the possession of any bill of lading, custom-house permit, or warehouse keeper's receipt for the delivery of the goods, or with the possession of goods for sale, or as security for advances, shall be deemed the owner, so far as to render valid any contract by him for the sale or disposition thereof, in whole or in part, for monies advanced, or any responsibility in writing assumed upon the faith thereof. The true owner will be entitled to the goods or repayment of the advances, or restoration of the security given on the deposit of the goods, and on satisAuthority not fying any lien that the agent may have thereon. The Act does not authorise a common carrier, warehouse-keeper, or other person to whom goods may be committed for transportation, or storage, to sell or hypothecate the same. Acts of fraud committed by factors or agents, in breach of their duty in that character, are punishable as misdemeanors. It has been held under this Act that a contract of sale by a factor or agent, entrusted with goods for sale, will protect the purchaser, though no money be advanced, or negotiable instrument, or other obligation be given at the time of the sale (a). extended to carriers. American law founded on This Act is founded chiefly upon the provisions of the British English Acts. statute of 6 Geo. 4, ch. 94, passed in 1825, in pursuance of the recommendation contained in the report of a select committee from the British House of Commons of January, 1823. So by the Civil Code of Louisiana, art. 3214, every consignee or commission agent who has made advances on goods consigned to him, or (a) Jennings v. Merrill, 20 Wendell, 1. placed in his hands to be sold for account of the consignor, has a privilege for the amount of those advances, with interest and charges on the value of the goods, if they are at his disposal, in his stores, or in a public warehouse, or if, before their arrival, he can show by a bill of lading or letter of advice, that they have been despatched to him. commission Portugal. The Portuguese law is the same as the French What is a on the constitution of an agency. Every act of trade carried on agent. for the benefit of others is a trading on commission. An agent contracting with third persons in his own name, or in the name of a firm with which he is connected, is a commission agent. An agent acting in the name of his principal is a broker (a). SECTION V. RIGHTS OF THE AGENT. BRITISH LAW. to com The agent has a right to his commission, which is either Agent's right fixed by contract or determined by the usage of the trade, mission. unless he is a mere gratuitous agent, or unless the nature of the service, or the understanding between the parties, repels such a claim (b). Thus, where a person performed work for a committee under a resolution entered into by them, "that any service to be rendered by him should be taken into consideration and such remuneration be made as should be deemed right," it was held that no action would lie to recover a recompense for such work, the resolution importing that the committee were to judge whether any remuneration was due (c). Where, however, the contract is that the amount only shall be fixed by the employer, then the agent may maintain a suit for a reasonable remuneration if none be fixed by his employer (d). muneration. The commission usually consists of a percentage upon the Amount of reactual amount of the value of the business done, or upon the value of the goods sold or bought, or upon the value of the freight of a ship chartered, and is usually paid by the seller of (a) Portuguese Code, $$ 762-772. (b) Eike v. Meyer, 3 Camp. 412; Roberts v. Jackson, 2 Stark. 225. (c) Taylor v. Brewer, 1 M. & S. 290. (d) United States v. M'Daniel, 7 Peter, Am. R. 1. Del credere commission. The service must be legal to enforce the right to remuneration. Agent guilty of misconduct not entitled to remuneration. The transaction must be completed. Except by usage of trade. goods or by the charterer of the ship. The rate and amount of remuneration or commission is usually regulated by the custom of trade, or of the particular business; but no custom of trade can prevail against an express agreement (a). Where there is a contract on the part of the agent to undertake to guarantee the fulfilment of the contract, or the payment of the goods sold upon the payment to him of a del credere commission, the agent may recover the same, and it becomes. due upon his entering into the contract of guarantee (b). To entitle the agent to enforce his claim to a commission the service must be legal. When the contract is either expressly or by implication forbidden by the common or statute law the agent cannot enforce his claim (c). Thus a broker not duly licensed by the mayor and aldermen of the City of London cannot maintain an action for work and labour, and for commission for buying and selling stock (d). An agent who is guilty of gross misconduct in the management of the affairs of his principal is not entitled to his commission (e). So if a yearly servant be dismissed by his principal before the year expires for such misconduct as will justify his dismissal, the servant is not entitled to any wages for the time during which he has served (f). If the agent perform his duties in so negligent a manner that no benefit results from them he is not entitled to recover either his commission or even a compensation for his trouble (g). That an agent may be entitled to his commission he must have wholly completed the duties required of him, or absolutely concluded the contract which he was contriving to establish, unless by the custom of trade he becomes entitled to a quantum meruit for what he has done where by any cause the duty remained unperformed. Thus it is the usage in the chartering of ships that when a broker has introduced the captain of a ship and a merchant together, and they by his means enter into (a) Bower v. Jones, 8 Bing. 65. (c) Cope v. Rowlands, 2 M. & W. (e) White v. Chapman, 1 Stark. 113; Denew v. Daverell, 3 Camp. 451. (f) Turner v. Robinson, 6 C. & P. 15. (g) White v. Chapman, 1 Stark. 113; Denew v. Daverell, 3 Camp. 451; Hamond v. Holiday, 1 C. & P. 384. |