No. 1348.

Book 2, part 2, tit. 5, chap. 10, sec. 6, § 1.

No. 1349.

principal, and he has sustained a loss, he may maintain an action against such third person for such wrongful act, deceit or fraud. (a)

SECTION 6.-OF THE LIABILITY OF THE AGENT.

1348. Agents are liable to their principals and to third persons.

§ 1. Of the agent's liability to his principal.

1349.-1. The agent is bound to obey the instructions of his principal, and a voluntary violation of them, by exceeding his authority, by misconduct, by negligence or omission, or by the performance of any act for which the principal sustains a loss, will render the agent liable for the consequences, however fair his motives may have been, or however pure his intentions. (b) Whenever the orders are positive, the agent must either refuse to act, or he is bound to a strict observance of them.(c) But the agent is excusable for disobeying instructions when he acts under an overwhelming necessity, or is prevented from acting by a like calamity; or when urged by an unexpected or unforeseen emergency, to which his instructions did not or could not apply; or if they did apply, that he was compelled to act as he did in order to prevent a greater loss, or the absolute ruin of his principal ;(d) as if goods are in a perishable condition, they may be sold contrary to instructions; or if they are accidentally injured, they may be sold to prevent further loss; or if in imminent danger of being captured in one port, they may be removed to another. (e) In the absence

(a) Story on Ag. § 415.

(6) Manella v. Barry, 3 Cranch, 415, 439; Walker v. Smith, 1 Wash. C. C. 152: Rundle v. Moore, 3 John. Cas. 36.

(c) Kingston v. Kincaid, 1 Wash. C. C. 454, 457.

(d) 3 Chit. on Com. and Man. 218; Dusar v. Perit, 4 Binn. 361. (e) See Catlin v. Bell, 3 Camp. 183.

No. 1350.

Book 2, part 2, tit. 5, chap. 10, sec. 6, § 1.

No. 1352.

of instructions, he is bound to conform to the usages of trade, and he is liable for nothing more. (a)

But this rule binding the agent to obey the instructions of his principal, is subject to be changed by the equities of the former against the latter; for when an agent, a factor for example, has received goods for sale at a limited price, and has made advances, he may, however, unless the advances are returned to him after demand, sell them below the limit at a fair price to reimburse himself.(b)

1350.-2. A want of sufficient skill, and a neglect to employ adequate diligence for the accomplishment of the objects of the agency, will render the agent liable to the principal for the consequences. (c) But it is to be remarked, he is only liable for the loss occasioned by his negligence, for if no loss has occurred in consequence of it, he will not be liable, although he may have been negligent.(d)

1351.-3. The agent is required to keep his principal informed as to the business of the agency, and to advise him, in reasonable time, of the sales he has made, and of such other facts and circumstances, as may enable him to take measures for his security; and in case of his neglect, the agent will be responsible for all the loss he may have occasioned. (e)

1352.-4. We have seen (f) that an agent is bound to account with his principal in relation to the business

(a) Geyer v. Decker, 1 Yeates, 486; Evans v. Potter, 2 Gallis, 13. (b) Parker v. Brancker, 22 Pick. 40, 45.

(c) Redfield v. Davis, 6 Conn. 439, 442; Lawler v. Keaquick, 1 John. Cas. 174; Story, Ag. § 183; Story, Bailm. § 23, 455; 1 Liverm. Ag. 331 to 341.

(d) Folsom v. Mussey, 1 Fairf. 297. To make the agent liable, there must be both a wrong and damage, for damnum absque injuria, and injuria absque damno, are equally objections to a recovery.

(e) Duval v. Burbridge, 4 W. & S. 305; S. C. 6 W. & S. 529; Brown v. Arrott, 6 W. & S. 402; Austil v. Crawford, 7 Ala. 336; Forrestier v. Boardman, 1 Story, 44.

(ƒ) Ante, sec. 6, § 1, of this chapter.

No. 1353.

Book 2, part 2, tit. 5, chap. 10, sec. 6, § 2, art. 1.

No. 1356.

of the agency, so that it will not be requisite further to discuss the subject. (a)

1353.-5. The above are the duties which every agent is bound to fulfil; there are others which arise from contracts in particular cases. For example, an agent is liable for the solvency of all persons to whom he has sold goods, and for which he has charged a del credere commission, for by this he becomes a guarantor that the buyer shall pay for the goods at the time stipulated.

§ 2. Of the agent's liability to third persons.

1354. This liability of an agent to third persons arises either from his contracts, or from his torts or injuries.

Art. 1.-Of the agent's liability on his contracts with third persons.

1355.-1. It is evident that when a person undertakes to do business for another as his agent, that he thereby assumes to be invested with that character, which, if true, would bind the principal; but if such assumption is not founded in truth, then the supposed principal would not be liable. In this case the law holds the agent responsible personally; and when he is invested with authority, and he exceeds the power given to him, he is liable for the difference.(b)

1356.-2. An agent becomes responsible as a principal, when he does not disclose his agency, because in that case the credit is given to him personally.(c) And the rule is the same, although it is known that the agent is acting for others who are unknown, as, when an auctioneer sells goods, without

(a) See Clark v. Moody, 17 Mass. 145, 153.

(b) Story, Ag. 166; Co. Litt. 258 a; Com. Dig. Attorney, C 15; Deming v. Bullitt, I Blackf. 241; Hampton v. Speckenagle, 9 S. & R. 212; Meech v. Smith, 7 Wend. 315; Clark v. Foster, 8 Verm. 98; Sinclair v. Jackson, 8 Cowen, 543; Ballou v. Talbot, 16 Mass. 461.

(c) Owen v. Gooch, 2 Esp. 567; Ex parte Hartop, 12 Ves. 352.

No. 1357.

Book 2, part 2, tit. 5, chap. 10, sec. 6, § 2, art 2.

No. 1360.

disclosing his principal, he will be liable to the purchaser on the contract.(a)

1357.-3. A foreign factor is always liable upon the contracts he enters into,(b) unless there be a special agreement to the contrary.

1358.-4. An agent is liable upon the contract when, from the form of it, it appears he intended to bind himself. (c) And he is equally liable when he makes a contract as agent, and there is no other responsible principal to whom resort can be had; as, if a man sign a note as "guardian of A B," an infant; in that case neither the infant nor his property will be liable on the note, and the agent alone will be responsible.(d)

1359.-5. If, in the character of agent, a person receive money for his principal, and afterward it appears that such money was paid to him in mistake, he holds it after notice of the mistake, not for the use of the principal, who is not entitled to it, but of the person who paid it to him; and if, after such notice, he pays it to the principal, he will be responsible in an action to the person who paid it to him; for as it might have been recovered from the principal, after notice, it was a wrong payment by the agent. But if, in consequence of the receipt of the money, there had been any change in relation to his principal, unfavorable to himself, the agent is ordinarily not liable.(e)

Art. 2.—Of the agent's liability for his torts to third persons.

1360. A distinction as to the liability of an agent has been made between acts of non-feasance and acts of malfeasance; between neglects or omissions, and active or positive wrongs.

(a) Hanson v. Roberdeau, Peake's R. 120.

(b) Paley, Ag. by Lloyd, 248, 273.

(c) Story, Ag. § 156, 159.

(d) Thatcher v. Dinsmore, 5 Mass. 299; Forster v. Fuller, 6 Mass. 58. (e) Farge v. Kneeland, 7 Cowen, 456.

No. 1361.

Book 2, part 2, tit. 5, chap. 10, sec. 6, § 2, art. 2.

No. 1363.

1. Of acts of non-feasance.

1361. For acts of non-feasance or omissions of duty, the agent's liability is confined to his principal; there being no privity between him and third persons, but a privity existing between him and his principal: the rule in these cases is, respondeat superior. (a) Thus if a servant of a common carrier should negligently lose a parcel of goods entrusted to him, the principal, and not the servant, is responsible to the owner; or if an under sheriff is guilty of negligence in executing a writ, an action lies against the high sheriff, and not against the deputy personally for his negligence.

2. Of acts of misfeasance.

1362. Contrary to the rule in cases of non-feasance, an agent is liable to a third person for his acts of misfeasance, whether such acts were authorized by the principal or not, for the principal has no right to confer an authority on him to commit a tort upon the rights or property of a third person. (b) Thus if the owner of a horse deliver him to a smith to shoe, and he deliver him to another smith, who lames him, the owner may have an action on the case against the latter, though he did not deliver the horse to him ;(c) but if the servant of the smith should by unskilfulness lame him, no action will lie against the servant, but against his employer, (d) unless the servant had maliciously done the injury, when an action might be maintained against him for the tort. (e)

1363. When the principal is a wrong doer, the agent who participates in his acts becomes a wrong

(a) Lane v. Cotton, 12 Mod. 488; 1 Hare & Wall. Sel. Dec. 467. (b) Paley, Ag. by Lloyd, 398; State v. Matthis, 1 Hill, S. C. 37; Owings v. Hull, 9 Pet. 607.

(c) Roll. Ab. 90.

(d) 1 Bl. Com. 430.

(e) Story on Bailm. § 402, 409; Story on Ag. § 310.