business; to be transacted in his name, or on his account, and by which the agent assumes to do the business and to render an account of it. As a general rule, whatever a man do by himself, except in virtue of a delegated authority, he may do by an agent. Combee's Case, 9 Co. 75. Hence the maxim qui facit per alium facit per se.
2.
When the agency express, it is created either by deed, or in writing
not by deed, or verbally without writing. 3 Chit. Com. Law 104; 9 Ves.
250; 11 Mass. Rep. 27; Ib. 97, 288; 1 Binn. R. 450. When the agency is
not express, it may be inferred from the relation of the parties and the
nature of the employment, without any proof of any express appointment.
1 Wash. R. 19; 16 East, R. 400; 5 Day's R. 556.
3.
The agency must be antecedently given, or subsequently adopted; and in
the latter case there must be an act of recognition, or an acquiescence
in the act of the agent, from which a recognition may be fairly implied.
9 Cranch, 153, 161; 26 Wend. 193, 226; 6 Man. & Gr. 236, 242; 1
Hare & Wall. Sel. Dec. 420; 2 Kent, Com. 478; Paley on Agency;
Livermore on Agency.
4. An agency may be dissolved in two ways – 1, by the act of the principal or the agent; 2, by operation of law.
5.
– 1. The agency may be dissolved by the aet of one of the parties. 1st.
As a general rule, it may be laid down that the principal has a right
to revoke the powers which he has given; but this is subject to some
exception, of which the following are examples. When the principal has
expressly stipulated that the authority shall be irrevocable, and the
agent has an interest in its execution; it is to be observed, however,
that although there may be an express agreement not to revoke, yet if
the agent has no interest in its execution, and there is no
consideration for the agreement, it will be considered a nude pact, and
the authority may be revoked. But when an authority or power is coupled
with an interest, or when it is given for a valuable consideration, or
when it is a part of a security, then, unless there is an express
stipulation that it shall be revocable, it cannot be revoked, whether it
be expressed on the face of the instrument giving the authority, that
it be so, or not. Story on Ag. 477; Smith on Merc. L. 71; 2 Liv. on Ag.
308; Paley on Ag. by Lloyd, 184; 3 Chit. Com. f. 223; 2 Mason's R. 244;
Id. 342; 8 Wheat. R. 170; 1 Pet. R. 1; 2 Kent, Com. 643, 3d edit.; Story
on Bailm. 209; 2 Esp. R. 665; 3 Barnw. & Cressw. 842; 10 Barnw.
& Cressw. 731; 2 Story, Eq. Jur. 1041, 1042, 1043
6.
– 2. The ageacy may be determined by the renunciation of the agent. If
the renunciation be made after it has been partly executed, the agent by
renouncing it, becomes liable for the damages which may thereby be
sustained by his principal. Story on Ag. 478; Story on Bailm. 436; Jones
on Bailm. 101; 4 John r. 84.
7.
– 2 The agency is revoked by operation of law in the following cases:
1st. When the agency terminates by the expiration of the period, during
which it was to exist, and to have effect; as, if an agency be created
to endure a year, or till the happening of a contingency, it becomes
extinct at the end or on the happening of the contingency.
8.
– 2. When a change of condition, or of state, produces an incapacity in
either party; as, if the principal, being a woman, marry, this would be
a revocation, because the power of creating an agent is founded on the
right of the principal to do the business himself, and a married woman
has no such power. For the same reason, when the principal becomes
insane, the agency is ipso facto revoked. 8 Wheat. R. 174, 201 to @04;
Story on Ag. 481; Story on Bailm. 206. 2 Liv. on Ag. 307. The incapacity
of the agent also amounts to a revocation in law, as in case of
insanity, and the like, which renders an agent altogether incompetent,
but the rule does not reciprocally apply in its full extent. For
instance, an infant or a married woman may in some cases be agents,
althouah they cannot act for themselves. Co. Litt. 52a.
9.
– 3. The death of either principal or agent revokes the agency, unless
in cases where the agent has an interest in the thing actually vested in
the agent. 8 Wheat. R. 174; Story on Ag. 486 to 499; 2 Greenl. R. 14,
18; but see 4 W. & S. 282; 1 Hare & Wall. Sel. Dec. 415.
10.
– 4. The agency is revoked in law, by the extinction of the
subject-matter of the agency, or of the principal's power over it, or by
the complete execution of the trust. Story on Bailm. 207, Vide
generally, 1 Hare & Wall. Sel. Dec. 384, 422; Pal. on Ag.; Story on
Ag.; Liv. on Ag.; 2 Bouv. Inst. n. 1269-1382.
AGENT, practice. An agent is an attorney who transacts the business of another attorney.
2.
The agent owes to his principal the unremitted exertions of his skil
and ability, and that all his transactions in that character, shall be
distinguished by punctuality, honor and integrity. Lee's Dict. of
Practice.
AGENT,
international law. One who is employed by a prince to manage his
private affairs, or, those of his subjects in his name, near a foreign,
government. Wolff, Inst. Nat. 1237.
AGENT,
contracts. One who undertakes to manage some affair to be transacted
for another, by his authority on account of the latter, who is called
the principal, and to render an account of it.
2.
There are various descriptiona of agents, to whom different
appellations are given according to the nature of their employments; as
brokers, factors, supercargoes, attorneys, and the like; they are all
included in this general term. The authority is created either by deed,
by simple writing, by parol, or by mere employment, according to the
capacity of the parties, or the nature of the act to be done. It is,
therefore, express or implied. Vide Authority.
3.
It is said to be general or special with reference to its object, i.e.,
according as it is confined to a single act or is extended to all acts
connected with a particular emplowment.
4.
With reference to the manner of its execution, it is either limited or
unlimited, i. e. the agent is bound by precise instructions, (q. v.) or
left to pursue his own discretion. It is the duty of an agent, 1, To
perform what he has undertaken in relation to his agency. 2, To use all
necessary care. 3, To render an account. Pothier, Tr. du Contrat de
Mandat, passim; Paley, Agency, 1 and 2; 1 Livrm. Agency, 2; 1 Suppl. to
Ves. Jr. 67, 97, 409; 2 Id. 153, 165, 240; Bac. Abr. Master and Servant,
1; 1 Ves. Jr. R. 317. Vide Smith on Merc. Law, ch. 3, p. 43,. et seq.
and the articles Agency, Authority, and Principal.
5.
Agents are either joint or several. It is a general rule of ther common
law, that when an authority is given to two or more persons to do an
act, and there is no several authority given, all the ageuts must concur
in doing it, in order to bind the principal. 3 Pick. R. 232; 2 Pick. R.
346; 12 Mass. R. 185; Co. Litt. 49 b, 112 b, 113, and Harg. n. 2; Id.
181 b. 6 Pick. R. 198 6 John. R. 39; 5 Barn. & Ald. 628.
6.
This rule has been so contrued that when the authority is given jointly
and severally to three person, two cannot properly execute it; it must
be done by all or by one only. Co. Litt. 181 b; Com. Dig. Attorney, C
11; but if the authority is so worded that it is apparent, the principal
intended to give power to either of them, an execution by two will be
valid. Co. Litt. 49 b; Dy. R. 62; 5 Barn. & Ald. 628. This rule
aplies to private agencies: for, in public agencies an authority
executed by a major would be sufficient. 1 Co. Litt. 181b; Com. Dig.
Attorney, C 15; Bac. Ab. Authority, C; 1 T. R. 592.
7.
The rule in commercial transactions however, is very different; and
generally when there are several agents each possesses the whole power.
For example, on a consignment of goods for sale to two factors, (whether
they are partners or not,) each of them is understood to possess the
whole power over the goods for the purposes of the consigment. 3 Wils.
R. 94, 114; Story on Ag. 43.
8.
As to the persons who are capable of becoming agents, it may be
observed, that but few persons are excluded from acting as agents, or
from exercising authority delegated to them by others. It is not,
therefore, requisite that a person be sui juris, or capable of acting in
his own right, in order to be qualified to act for others. Infants,
femes covert, persons attainted or outlawed, aliens and other persons
incompetent for many purposes, may act as agents for others. Co. Litt.
62; Bac. Ab. Authority, B; Com. Dig. Attorney, C 4; Id. Baron and Feme, P
3; 1 Hill, S. Car. R. 271; 4 Wend. 465; 3 Miss. R. 465; 10 John. R.
114; 3 Watts, 39; 2 S. & R. 197; 1 Pet. R. 170.
9.
But in the case of a married woman, it is to be observed, that she
cannot be an agent for another when her husband expressly dissents,
particularly when he may be rendered liable for her acts. Persons who
have clearly no understanding, as idiots and lunatics cannot be agents
for others. Story on Ag. 7.
10.
There is another class who, though possessing understanding, are
incapable of acting as agents for others; these are persons whose duties
and characters are incompatible with their obligations to the
principal. For example, a person cannot act as agent in buying for
another, goods belonging to himself. Paley on Ag. by Lloyd, 33 to 38; 2
Ves. Jr. 317.
11.
An agent has rights which he can enforce, and is, liable to obligations
which he must perform. These will be briefly considered:
1. The rights to which agents are entitled, arise from obligations due to them by their principals, or by third persons.
12
– 1. Their rights against their principals are, 1., to receive a just
compensation for their services, when faithfully performed, in execution
of a lawful agency, unless such services, are entirely gratuitous, or
the agreement between the parties repels such a claim; this
compensation, usually called a commission, is regulated either by
particulaar agreement, or by the usage of trade, or the presumed
intention of the parties. 8 Bing. 65; 1 Caines, 349; 2 Caines, 357.
2.
To be reimbursed all their just advances, expenses and disbursemnts
made in the course of their agency, on account of, or for the benefit of
their principal; 2 Liverm. on Ag. 11-23; Story on Ag. 335; Story on
Bailm. 196; Smith on Mer. Law, 56; 6 East, 392; and also to be paid
interest upon such advances, whenever from the nature of the business,
or the usage of trade, or the particular agreement of the parties, it
may be fairly presumed to have been stipulated for, or due to the agent.
7 Wend. 315; 3 Binn. 295; 3 Caines, 226; 3 Camp. 467; 15 East, 223.
13.
Besides the personal remedies which an agent has to enfored his claims
against his principal for his commissions and, advancements, he has a
lien upon the property of the principal in his hand. See Lien, and Story
on Ag. 351 to 390.
14.
– 2. The rights of agents against third penons arise, either on
contracts made between such third persons and them, or in consequence of
torts committed by the latter. 1. The rights of agents against third
persons on contracts, are, 1st, when the contract is in writing and made
expressly with the agent, and imports to be a contract personally with
him, although he may be known to act as an agent; as, for example, when a
promissory note is given to the agent as such, for the benefit of his
principal, and the promise is to pay the money to the agent, oe nomine.
Story on Ag. 393, 394; 8 Mass. 103; see 6 S.& R. 420; 1 Lev. 235; 3
Camp. 320; 5 B.& A. 27. 2d. When the agent is the only known or
ostensible pincipal, and therefore, is in contemplation of law, the real
contracting party. Story on Ag. 226, 270, 399. As, if an agent sell
goods of his principal in his own name, as if he were the owner, he is
entitled to sue the buyer in his own name; although his prncipal may
also sue. 12 Wend. 413; 5 M.& S. 833. And on the other hand, if he
so buy, he may enforce the contract by action. 3d. When, by the usage of
trade, the agent is authorized to act as owner, or as a principal
contracting party, although his character as agent is known, he may
enforce his contract by action. For example, an auctioner, who sells the
goods of another may maintain an action for the price, because he has a
possession coupled with an interest in the goods, and it is a general
rule, that whenever an agent, though known as such, has a special
property in the subject-matter of the contract, and not a bare-custody,
or when he has acquired an interest, or has a lien upon it, he may sue
upon the contract. 2 Esp. R. 493; 1 H. Bl. 81, 84; 6 Wheat. 665; 3 Chit.
Com.Law, 10; 3 B. & A. 276. But this right to bring an action by
agents is subordinate to the rights of the principal, who may, unless in
particular cases, where the agent has a lien, or some other vested
right, bring a suit himself, and suspend or extinguish the right of the
agent. 7 Taunt. 237, 243; 2 Wash. C. C. R. 283. 2. Agents are entitled
to actions against third persons for torts committed against them in the
course of their agency. 1st. They may maintain actions, of trespass or
trover against third persons for any torts or injuries affecting their
possession of the goods which they hold as agents. Story on Ag. 414; 13
East, 135; 9 B. & Cressw. 208; 1 Hen. Bl. 81. 2d. When an agent has
been induced by the fraud of a third person to sell or buy goods for his
principal, and he has sustained loss, he may maintain an action against
such third person for such wrongful act, deceit, or fraud. Story on Ag.
415.
15 – 2. Agents are liable for their acts, 1, to their principals; and 2, to third person.
16.
– 1. The liabilities of agents to their principals arise from a
violation of their duties and obligations to the principal, by exceeding
their authority, by misconduct, or by any negligence or omission, or
act by which the principal sustains a loss. 3 B. & Adol. 415; 12
Pick. 328. Agents may become liable for damages and loss under a special
contract, contrary to the general usages of trade. They may also become
responsible when charging a del credere commission. Story on Ag. 234.
17.
– 2. Agents become liable to third persons; 1st, on their contract; 1,
when the agent, undertakes to do an act for another, and does not
possess a sufficient authority from the principal, and that is unknown
to the other party, he will be considered as having acted for himself as
a principal. 3 B. 9 Adol. 114. 2. When the agent does not disclose his
agency, he will be considered as a principal; 2 Ep. R. 667; 15 East, 62;
12 Ves. 352; 16 Martin's R. 530; and, in the case of agents or factors,
acting for merchants in a foreign country, they will be considered
liable whether they disclose their principal or not, this being the
usage of the trade; Paley on Ag. by Lloyd, 248, 373; 1 B.& P. 368;
but this presumption may be rebutted by proof of a contrary agreement.
3. The agent will be liable when he expressly, or by implication, incurs
a personal responsibility. Story on Ag. 156-159. 4. When the agent
makes a contract as such, and there is no other responsible as
principal, to whom resort can be had; as, if a man sign a note as
"guardian of AB," an infant; in that case neither the infant nor his
property will be liable, and the agent alone will be responsible. 5
Mass. 299; 6 Mass., 58. 2d. Agents become liable to third persons in
regard to torts or wrongs done by them in the course of their agency. A
distinction has been made, in relation to third persons, between acts of
misfeasance and non-feasance: an agent is, liable for the former, under
certain circumstances, but not for the latter; he being responsible for
his non-feasance only to his principal. Story on Ag. 309, 310. An agent
is liable for misfeasance as to third persons, when, intentionally or
ignorantly, he commits a wrong, although authorized by his principal,
because no one can lawfully authorize another to commit a wrong upon the
rights or property of another. 1 Wils. R. 328; 1 B. & P. 410. 3d.
An agent is liable to refund money, when payment to him is void ab
initio, so that, the money was never received for the use of his
principal, and he is consequently not accountable to the latter for it,
if he has not actually paid it over at the time he receives notice of
the take. 2 Cowp. 565; 10 Mod. 233; M.& S. 344. But unless "caught
with the money in his possession," the agent is not responsible. 2
Moore, 5; 8 Taunt. 136; 9 Bing. 878; 7 B.& C. 111; 1 Cowp. 69; 4
Taunt. 198. This last rule is, however, subject to this qualification,
that the money shall have been lawfully received by the agent; for if,
in receiving it, the agent was a wrongdoer, he will not be exempted from
liability by payment to his principal. 1 Campb. 396; 8 Bing. 424; 1 T.
R. 62; 2 Campb. 122; 1 Selw. N. P. 90, n.; 12 M. & W. 688; 6 A.&
Ell. N. S. 280; 1 Taunt. 359; 3 Esp. 153. See Diplomatic agent.
AGENT AND PATIENT.
This phrase is used to indicate the state of a person who is required
to do a thing, and is at the same time the person to wbom it is done;
as, when a man is indebted to another, and he appoints him his executor,
the latter is required to pay the debt in his capacity of executor, and
entitled to receive it in his own right, he is then agent and patient.
Termes de la ley.
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