some negotiation as to the intended voyage, the broker is entitled to his commission if a charterparty be effected for that voyage, even although they may employ another broker to prepare the charterparty, or may write the charterparty themselves (a). If a broker be authorised by both parties, and acting as the agent of each, communicates to the merchant what the shipowner charges, and also communicates to the shipowner what the merchant will give, and he names the ship and the parties, so as to identify the transaction, and a charterparty be ultimately effected for that voyage, the broker is entitled to his commission; but if he does not mention the names, so as to identify the transaction, he does not get his commission to the exclusion of another broker, who afterwards introduces the parties personally to each other (b). So the actual earning of freight under a charterparty is not a condition precedent to the right of the shipbroker to his commission for procuring the execution of the charter (c). The The service work and service must be usefully and skilfully performed to fully perentitle an agent to a remuneration. Where work which is formed. useful has been performed unskilfully, or where work which is useless for the object in view has been performed skilfully, no compensation can be recovered (). An agent guilty of fraud towards his principal, or betraying his trust by acting against his interest, will forfeit his claims to a commission (e). The agent has also a right to be reimbursed of all advances, expenses, and disbursements, made on account and for the benefit of his principal, and to interest upon the same (ƒ). The agent has a right of lien over all the goods in his hands belonging to his principal for the balance of his accounts, or for advances made by him to his principal on the credit of goods entrusted to him (g). So bankers have a right of lien on the securities belonging to their customers for their general balance due to them (h). So insurance brokers who have effected a (a) Read v. Rann, 10 B. & C. 438; Burnett v. Bouch, 9 C. & P. 620; Broad v. Thomas, 7 Bing. 99. (b) Burnett v. Bouch, 9 C. & P. 620. (e) Brown v. Croft, 6 C. & P. 16. Calton v. Bragg, 15 East, 223. (g) Gardener v. Coleman, 1Burr. 494; Godin v. London Assurance Company, 1 W. Bl. 104; Dixon v. Stansfeld, 10 C. B. 399; Graham v. Ackroyd, 10 Hare, 192; Pultney (Bart.) v. Keymer, 3 Esp. 182. (h) Barnett v. Brandao, 6 M. & G. 666. must be skil Agent con tracting as policy have a lien upon it for their commission and balance (a), and an attorney has a lien for his general balance or papers of his clients which come to his hands in the course of his professional employment. An agent contracting in his own name for an undisclosed principal may principal may himself sue as principal (b), though the latter also may sue on such a contract in his own name (c). sue as principal. Right to advances and interest. Right of lien for advances. Bailee's lien. FOREIGN LAW. France. The agent has the right to demand the reimbursement of his advances after he has given a detailed account of them, with vouchers as usual. The interest runs from the day he has made them. He may demand to be indemnified of any loss he may have suffered in the execution of the authority without any imprudence on his part, and of all the consequences that may result from what he has done within the limits of his authority. He may also demand a compensation at the rate agreed upon, or such as is usually given, or arbitrators may decide upon the amount. A commission agent who has made advances on merchandises forwarded to him from another place to be sold on account of his principal, has a lien for his advances, interest, and expenses upon the value of the merchandises, if they are at his disposal in his own warehouse, or in a public deposit, or if before their arrival he can show by a bill of lading or carriage note that they have been forwarded to him. If the merchandises have been sold and delivered on account of the principal, the commission agent has a right over the produce of the sale for his advances, interest, and expenses, in preference to the creditors of his principal. Loans, advances, or payments made upon merchandises deposited or consigned by an individual residing in the same place as the agent, will give such privilege to the agent or depositors in case only he has conformed with the requirement of the Civil Code respecting pledges (d). United States. Every bailee for hire who by his labour and skill has imparted an additional value to the goods has a lien (a) Mann v. Forrester, 4 Camp. 60. (c) Humphrey v. Lucas, 2 C. & K. 152. (d) French Commercial Code, §§ 93 -95. Lien on goods for compensa tion. upon the property for his reasonable charges. So a porter or wharfinger, or warehouseman, or any person taking property in the way of his trade or occupation to bestow labour or expense upon it. Mechanics and labourers having a claim to the amount of twenty dollars for labour or material used in the erection of any building have a lien on the building. If goods come to the possession of a person, and he has been at trouble and expense upon them, he has a lien upon the goods for a compensation in one case only, and that is the case of goods lost at sea, and it is a lien for salvage. By the custom of trade an agent may have a lien upon the property of his employer entrusted to him in the course of that trade, not only in respect to the management of that property, but for his general balance of accounts. The usage of any trade sufficient to establish a general lien must, however, have been so uniform and notorious as to warrant the inference that the party against whom the right is claimed had knowledge of it. This general lien may Right of lien may be acalso be created by express agreement, as, where one or more quired by persons give notice that they will not receive any property for the purposes of their trade or business, except on condition that they shall have a lien upon it, not only in respect to the charges arising on the particular goods, but for the general balance of their account. All persons who afterwards deal with the knowledge of such notice, will be deemed to have acceded to that agreement. How far such a notice would avail in the case of persons who, like common carriers and innkeepers, are under an obligation to accept employment in the business they assume, for a reasonable price to be tendered to them, and who had no right to impose any unreasonable terms and conditions upon their employers, or to refuse to serve them, remains yet to be settled by judicial decision. Possession, actual or constructive, of the goods is necessary to create the lien; and the right does not extend to debts which accrued before the character of factor commenced, nor where the goods of the principal do not, in fact, come to the factor's hands, even though he may have accepted bills upon the faith of the consignment, and paid part of the freight. The right of lien is also to be deemed waived, when the party enters into a special agreement inconsistent with the existence of the lien, or from which a waiver of it may fairly be inferred; as, when he usage or by ment. express agree Possession necessary to the right of lien. Granting of credit is a waiver of lien. gives credit by extending the time of payment, or takes distinct and independent security for the payment. The party shows, by such acts, that he relies, in the one case, on the personal credit of his employer; and in the other, that he intends the security to be a substitution for the lien; and it would be inconvenient that the lien should be extended to the period to which the security had to run. The lien is destroyed when a factor makes an express stipulation on receiving the goods to pay over the proceeds. So if the party comes to the possession of goods without due authority, he cannot set up a lien against the true owner; as if a servant delivers a chattel to a tradesman without authority, or a factor, having authority to sell, pledges the goods of his principal. Portugal. The Portuguese code has the same provisions as the French on the subject (a). Spain. The same law prevails in Spain as in France. Advances made on merchandise consigned by a person residing in the same place as the agent are considered as loans upon the property pledged (b). Agent's duties instructions. SECTION VI. DUTIES OF THE AGENT. BRITISH LAW. The duties of the agent to his principal are primarily deterdetermined by. mined by the verbal or written instructions he receives, and in the absence of specific instructions they are implied to be in accordance with the ordinary practice in the business in which he is employed. The first duty of the agent is to give to his principal the free and unbiassed use of his own discretion and judgment, and to exercise good faith and reasonable care and diligence (c). So he cannot engage himself with a third person when he has agreed to give up the whole of his personal services to his principal (d). An agent must be also competent to fulfil a trust reposed in him, and he should not engage in it without Agent must be competent for his duties. (a) Portuguese Code, §§ 49–51. (d) Thompson v. Havelock, 1 Camp. 527. sufficient skill. When doubts are expressed as to whether the agent has exercised a competent skilfulness in the fulfilment of his duties, the best means to adopt with a view to determine the question is to see whether a majority of skilful and experienced agents would have so acted (a). Even where a person acts gratuitously, if he undertakes to do a thing to the best of his skill, and if his situation or profession is such as to imply skill, an omission of that skill is imputable to him as gross negligence (b). of Must act ac do of The agent must act according to the accustomed mode transacting business. Where he is employed generally to any act, he is authorised to do it only in the usual way business. Any departure from the established usage and habits of business would subject the agent to the penalty of any accident or loss which might thereby accrue to the principal (c). So if an insurance broker ordered to effect a policy omits to insert in it the usual clauses to cover the vessel or goods from certain risks, he would be liable for any loss accruing from such negligence (d). He must not make himself an adverse party to his principal, unless by previous understanding with him; therefore an agent instructed to sell an article cannot himself be the purchaser of it, nor can an agent employed to purchase be himself the seller (e). Where an agent employed to sell property purchases it himself, he is bound to show that there was no concealment or unfair representation, and that in purchasing himself the same advantages were afforded to his principal as if the property had been sold to a stranger (f). So if an agent employed to purchase becomes the purchaser for himself he is to be considered as a trustee for the principal (g). The agent must not exceed the letter of his instructions. If he does exceed them, he does it at his peril, unless the principal subsequently acknowledges the departure and ratifies the acts of the cording to the accustomed course of business. Must not make himself adverse to his principal. Must attend to the terms of his instruc tions. |