Must conform to the usages of trade. When he may depart from his instruc tions. sibility between them. An agent is bound to pay interest upon any sum which he may have employed for his own use and upon what he owes to his principal (a). Portugal. It is the duty of the agent, in the execution of his authority, to conform to the usages of trade. If he departs from them he becomes liable to damages. He is bound to execute the business entrusted to him promptly. He is not bound to accept an agency; but if he has accepted it he must execute it. The agent must not depart from his instructions except in the following cases :-1, when it is for the real advantage of the principal; 2, when injury would result from delaying the execution; 3, when the deviation is immaterial; or 4, when he can obtain the approval of his principal. The silence of the principal to an intimation of such a deviation is equivalent to an approval of the same. To determine how far the agent has transgressed his authority it should be considered −1, whether the agent has departed from his instructions to the injury of the principal; 2, whether by so doing the principal has derived any benefit; 3, whether the execution of the order might not have been injurious to the principal, having regard to the time or to any change unforeseen by the principal; and 4, whether the agent was not able to execute his instructions in the manner prescribed by the principal. In the first case the agent would be responsible for the losses he may have caused. In the second case he is not liable. In the third and fourth, if a delay was not likely to cause any injury, the agent would be bound to ask and wait for further instructions. And if the business cannot be delayed without injury to the principal, Not responsi- the agent should act according to his own discretion. The agent who has bestowed every care to the execution of his instructions is not responsible for the non-fulfilment of the object, or for the bad result of the business entrusted to him, nor for the insolvency of those with whom he has contracted when at the time he contracted with them they were solvent, provided in all cases there was no fraud on his part. The agent charged to forward a cargo of merchandise is responsible for the good quality of such when he shipped them. But if he was employed to execute the order in a different port through another ble for the success of the business. (a) French Civil Code, §§ 1991-1997. agent, the latter is responsible towards the first agent, who must prove to his employer that he has faithfully transmitted his orders (a). Prussia-A person who accepts an agency ought to execute it himself. He ought to manage the affairs of his principal as his own. If extraordinary cases should present themselves, he ought to communicate them at once to his principal; and he must be ever ready to afford to the principal any information he may request. Spain. The commission agent is at liberty to accept or Commission refuse the agency; but if he does refuse it he ought to advise agent may the principal by the first post, and in case of negligence he will agency. be liable to damages. The agent who refuses to undertake the business entrusted to him is still bound to use every diligence for the preservation of the object until another agent has been named. And the agent who undertakes to execute an authority is bound to go through with it when he has once begun it. When, however, funds are necessary the agent is not bound to execute the authority, even though he may have accepted it, unless the principal supplies him with sufficient funds, and he may even suspend all further proceedings when he has used up the funds he has received. But if he has engaged to advance the necessary funds he must execute the agency, unless the employer is in a state of insolvency. When without any lawful cause the agent refuses to execute the agency he has accepted or to complete what he has commenced, he is responsible for damages. It is the duty of the agent to follow the instructions of his principal. He should consult him in matters which have neither been foreseen nor provided for; and if he cannot consult him he should do precisely the same as if the business were his He should never depart from the instructions of his principal, and if he deems it necessary to deviate from them, he should advise him of it by the first mail. He should give the principal every information on the state of the negotiation and advise him immediately of the conclusion of the business. The agent should himself execute the agency, and he cannot delegate it to another without the previous consent of the principal. He must render to his principal own. (a) Portuguese Code, $$ 804-817. Must consult his principal for things not foreseen. an account of all the transactions with all the vouchers attached to it (a). Agent not liable where he contracts in the name of his principal. Liable if he contracts in his own name. SECTION VII. LIABILITY OF THE AGENT. The agent is not personally liable where he contracts in the name and on account of his principal. To relieve himself from all personal liability in a contract the agent must draw up the instrument in a manner that it shall purport in its face to be the contract of the principal, though he may sign it by his authority as agent (b). But if the agent does not disclose the name of his principal, or contracts in such a form as to make himself personally responsible, he cannot afterwards, whether his principal were or were not known at the time of the contract, release himself from that responsibility (c). Even where it is shown that the party acted as agent for other persons, that will not diminish his liability on the agreement executed in his own name; it will only show that it is also binding on others by reason that the act of the agent in signing the agreement in pursuance of his authority is in law the act of the principal (d). So where an agent makes a sale on behalf of an unnamed principal, and signs the note in his name as broker, evidence might be produced of a custom of trade that where a broker purchases without disclosing the name of his principal he was liable to be looked to as the purchaser (e). No person in fact in making a contract is considered to be the agent of another unless he stipulates for his principal by name, stating his agency in the instrument which he signs (f). Thus if a person signs a note or draws or accepts a (a) Spanish Code, §§ 120-140. (b) Deslandes v. Gregory, 29 L. J. (c) Higgins v. Senior, 8 M. & W. 845; Jones v. Littledale, 6 Ad. & El. 486; Magee v. Atkinson, 2 M. & W. 440; Hanson v. Roberdean, Peake, 163; Kendray v. Hodgson, 5 Esp. 228; Reid v. Dreaper, 30 L. J. Ex. 268; Wake v. Harrop, 30 L. J. Ex. 273. (d) Franklyn v. Lamond, 4 C. B. 637. (e) Humfrey v. Dale, 7 E. & B. 266. (f) Stackpole v. Arnold, 11 Mass. Am. R. 29. bill in his own name, though on account of his principal, becomes personally liable on the note or bill (a). he acts without authority. responsible if The agent is personally responsible to third persons whenever The agent is he acts without authority or in excess of the authority delegated to him; wherever he makes a fraudulent representation of his authority with an intention to deceive; where he has no authority and knows it, but nevertheless makes the contract as having such authority; and also where he makes the contract as agent bond fide, believing that such authority is vested in bim, while he has in fact no such authority (b). A person professing to contract as agent for another implicitly, if not expressly, undertakes to the person who enters into such a contract upon the faith of the professed agent being duly authorised, that the authority which he professes to have does in fact exist (c). The remedy, however, against the person who professes to make such a contract, but has no authority, is either by an escrow for the deceit, alleging and proving the scienter or on an implied contract that he had authority, but not by treating him as principal (d). Where an English agent contracts on behalf of a principal When principal resides residing abroad, the agent is prima facie considered to pledge abroad. his own credit. By the universal understanding of merchants and of all persons in trade the credit in such case is considered to be given to the British buyer and not to the foreign. It is, however, in all cases a question of intention capable of being explained by the custom or usage of trade where such can be shown to exist (e). Where the contract is on the face of it with the foreign principal and not with the agent, the presumption of liability of the British agent is at an end; and though in a contract of sale without writing the party making the contract may be personally liable, notwithstanding he mentions it at the time that he is buying for a foreign principal, in the Liable for omission of duty and for wrongs. Agent converting pro perty to his case of a written contract, the same is to be construed according to the intention of the parties as evidenced by the words they have used having regard also to the surrounding circumstances (a). For any nonfeasances or omissions of duty in the course of his employment the agent is liable to the principal only, but for any misfeasances or acts of direct positive wrong, the agent is liable to third persons as a wrong doer (b). Masters of ships, however, are liable to third persons for neglect of duty. Thus if goods are injured or perish by the neglect of the master and crew, the master as well as the owner are severally liable for it. If any person intrusted with a power of attorney for the sale or transfer of any property, fraudulently sell, or transfer, or own use guilty otherwise convert such property, or any part thereof, to his own use or benefit, he is guilty of a misdemeanor (c). of misde meanor. When agent communicates the name of his buyer he ceases to be liable. Except where he receives a del credere commission. When the agent communicates to his principal the name of the buyer of goods sold on his account, he is not personally answerable to the principal for the fulfilment of the contract or for the payment of the goods, except in case of gross negligence. When, however, the agent charges a del credere commission, he makes himself liable for the loss which his conduct may bring upon the principal without the onus of proving negligence. His liability to pay is not an absolute engagement to the principal so as to make him liable in the first instance, and dispensing the vendor from resorting in the first instance to the vendee but contingent on the event of the agent failing to secure payment by the vendee. Upon non-payment by the vendee the debt falls absolutely on the factor (d). The tribunal will decide FOREIGN LAWS, France. The agent is not bound personally towards third whether a per- parties to whom he has shown his instructions, unless he has (a) Green v. Kopke, 18 C. B. 559; Risbourg v. Bruckner, 3 C. B. N. S. 812. (b) Lane v. Cotton, 12 Mod. 448. holt v. Roberts, 2 Camp. 587; Hough. ton v. Matthew, 3 B. & P. 485; Morris v. Clasby, 1 M. & S. 576; Leverick v. Meigs, 1 Cowen, Am. R. 664 Hornby v. Lacy, 6 M. & S. 166; Wickham v. Wickham, 2 K. & John, 478. |