Thus, if an agent take upon him to put out his employer's money at interest, unknown to him, and without authority, it is at his own hazard; but the receipt of interest by the principal, with knowledge, is an affirmance by him of the transaction, and exempts the agent from liability, if the security fail.(c)

In the next place, an agent is bound to use the utmost diligence and care in the execution of his trust. In the absence of specific instructions, it is his duty to pursue the accustomed course of that business in which he is employed. (A) For an employer has undoubtedly a right to expect from an agent, whom he pays for his service, that, without any particular directions, every precaution ordinarily used for the safety and improvement of his property will be observed. And to this end it is incumbent upon an agent, who receives compensation for his labor, to possess such a competent *degree of skill and knowledge in his [5] business, as would, in ordinary cases, be adequate to the accomplishment of the service undertaken.(d) Thus an agent employed in negotiating bills of exchange, is bound, "First, to endeavor to procure acceptance; secondly, on refusal, to protest for non-acceptance; thirdly, to advise the remitter of the receipt, acceptance, or protesting; and fourthly, to advise any third person that is concerned ;(B) and all this without any delay."(3)(e)

(c) Clarke v. Perry, 2 Freem. Rep. 48; Eq. Ca. Ab. 708. + And see Prince v. Clark, 1 B. & C. 186, post. + || 31, 115.||

(A) || And to transact the business according to the laws of the place in which it is to be done. Owings v. Hull, 9 Peters, 608, 27.||

(d) Russell v. Palmer, 2 Wils. 325; ||Redfield v. Davis, 6 Conn. Rep. 442; Kingston v. Wilson, 4 Wash. C. C. Rep. 310.||

(B) | Mr. Justice Story (Agency, § 208) very reasonably questions whether the duty of the agent can be extended to the giving advice to third persons.||

(3) + The case of a bill-broker is here put, of course, merely as an instance. The rule is of general application; for whoever holds himself out as ready for a proportionate remuneration to transact a particular kind of business for others, is presumed to have the requisite skill for such an undertaking. It extends, therefore, to all professional men, as attorneys, surgeons, &c

(e) Beawes, 431. See with respect to attorneys, 2 Wils. 325; 4 Burr.

What the usages of each trade are, is the subject of proof as the occasion occurs ;(A) unless they are such as, by re

2061; + 3 B. & C. 799. || As to the liability of an attorney for deficiency of skill and diligence, the following language of Tindal, C. J. furnishes an illustration. "It would be extremely difficult to define the exact limit by which the skill and diligence which an attorney undertakes to furnish in the conduct of a cause is bounded, or to trace precisely the dividing line between that reasonable skill and diligence which appears to satisfy his undertaking and that crassa negligentia, or lata culpa mentioned in some of the cases, for which he is undoubtedly responsible. The cases, however, which have been cited and commented on at the bar, appear to establish in general, that he is liable for the consequences of ignorance or non-observance of the rules of practice of this court; for the want of care in the preparation of the cause for trial; or of attendance thereon with his witnesses; and for the mismanagement of so much of the conduct of a cause, as is usually and ordinarily allotted to his department of the profession. Whilst on the other hand, he is not answerable for error in judgment upon points of new occurrence, or of nice or doubtful construction, or of such as are usually intrusted to men in the higher branch of the profession of the law." "We lay no stress upon the fact, that the attorney had consulted his counsel as to the sufficiency of the evidence; because, we think, his liability must depend upon the nature and description of the mistake or want of skill which has been shown; and he cannot shift from himself such responsibility by consulting another, where the law would presume him to have the knowledge himself." Godefroy v. Dalton, 6 Bing. 460. And see Shilcock v. Passman, 7 Carr. & Payne, 289; Warner v. Griswold, 8 Wend. 666; Varnum v. Martin, 15 Pick. 440.|| And as to auctioneers, see 3 Campb. 451.+ || Post, 105.||

(A) || Young v. Cole, 3 Bing. N. C. 724. "A person who employs a broker, must be supposed to give him authority to act as other brokers do. It does not matter whether or not he himself is acquainted with the rules by which brokers are governed." Littledale, J. Sutton v. Tatham, 10 Ad. & Ell. 21." It is a reasonable and legal presumption that every man knows the usage of the place in which he traffics, whether by himself or his factor, and if the usage be not illegal, he is bound by it." Parsons, C. J. Goodenow v. Tyler, 7 Mass. Rep. 46; Post, 212, note. Tindal, C. J., states it as the general rule, "that where a doubt was raised by evidence upon the meaning of a mercantile contract, evidence was admissible of the usage or course of trade, at the place where the contract was to be carried into effect, to explain or remove such doubt." Bottomley v. Forbes, 5 Bingh. N. C. 121; Johnston v. Usborne, 11 Ad. & Ellis, 549; McKinstry v. Pearsall, 3 Johns. Rep. 319; Smith v. Dunn, 6 Hill, 545. The rule peculiarly applies in the construction of policies of insurance. Commercial Ins. Co. 7 Johns. Rep. 385; Astor v. The Union Ins. Co. 7

Coit v. The

Cowen, 202. But see Turner v. Burrows, 5 Wend. 547. Evidence of the custom of trade is inadmissible to vary the express and unequivocal terms of a written contract. Trueman v. Loder, 11 Ad. & Ellis, 589; Camden v. Doremus, 3 Howard, 515; 3 Kent's Comm. 260, and cases cited, n. b, ibid. But the meaning of mercantile phrases in letters between merchants, is a proper subject for the jury. Gibbs, C. J. said, “The expressions in the several letters from R. Groning & Co., are not easily reconcileable; but the question whether the phrase, when duly honored' means, when they were accepted or when they were paid, was a question not so much for the consideration of the court, as of a jury. The jury have pronounced their judgment, and on a case involved in such mercantile obscurity, they have found that the bills were remitted at the risk of R. Groning & Co., not of Doorman." Park, J. "The Solicitor General argues that the phrase, duly honored' means accepted; whether it does so or not has been left to the jury, and they have found that it meant due payment; which is the opinion I myself should have formed." Lucas v. Groning, 7 Taunt. 164.

Though the terms of a mercantile contract may be ascertained by usage, "it is perfectly clear that new terms cannot be introduced into any written instrument under seal;" [as for instance, a charter party.] Gibbs, C. J. Gibbon v. Young, 8 Taunt. 254. "where a positive statute has declared the meaning or legal signification of a word, in reference to its use in contracts generally, I am not aware of any case in which a court of law has gone so far as to receive parol evidence to explain a written contract, expressed in the language of the statute, by showing that the statutory term in that particular contract meant something else than that which the legislature had declared should be its meaning." Walworth, Ch. Macy v. The Beekman Iron Co., 9 Paige, 195.

Evidence of usage has been admitted to show that demand of payment of a promissory note on the fourth day after it became due, was sufficient to charge the endorser. Renner v. The President &c., of the Bank of Columbia, 9 Wheat. 581; Mills v. The Bank of the United States, 11 Wheat. 431.

Mr. Justice Story has, however, expressed a pointed disapprobation of the admission of usage, in strong and emphatic language. "I own myself," he says, " to be no friend to the indiscriminate admission of evidence of supposed usages and customs in a peculiar trade and business, and of the understanding of witnesses, relative thereto, which has been in former times so freely resorted to; but which is now subjected by our courts to more exact and well defined restrictions. Such evidence is often, very often, of a loose and indeterminate nature, founded upon very vague and imperfect notions of the subject; and therefore it should, as I think, be admit ted with a cautious reluctance and scrupulous jealousy; as it may shift the whole grounds of the ordinary interpretation of policies of insurance and other contracts." Rogers v. Mechanics Ins. Co., 1 Story's Rep. 608. It was well observed by the late Lord Tenterden, (Treatise on Shipping,

peated proof, have come to be recognized by the law;(A) as those which relate to bills of exchange, and some other known instruments of trade. And agents are not only responsible for the performance of these duties in their own persons, but are sureties for those whom they themselves employ in the execution of the service they undertake.(ƒ)

472, sixth edition) "every mercantile practice of frequent use, and even of general convenience, is not, and ought not to become in all its consequences, a part of the law of the land ;" and on this principle our courts have reserved to themselves the right of judging of the reasonableness of those usages, and of allowing or disallowing them accordingly. Rus. Fact. & Br. 71; 1 Bell's Comm. on Merc. Jur. 390 is there referred to "where it is laid down by that learned writer, that three things are necessary to settle a usage, as a rule of the law merchant, 1. Proof of the usage; 2. The legality of it, or at least, that it is not inconsistent with the common law, but an allowable deviation from it, and 3. The allowance of the custom judicially." Of the two alternatives, it is assuredly better that the merchants should receive their law from the courts, than the courts theirs from the merchants. See further, United States v. Hardyman, 13 Peters, 176; Webb v. Plummer, 2 Barn. & Ald. 746; Chandler v. Belden, 18 Johns. Rep. 162; Forrestier v. Bordman, 1 Story's Rep. 54; The Citizens Bank v. The Nantucket Steamboat Co., 2 Story's Rep. 17, 37, 45, 50.||

(a) || Post, 281, 189; Kemp v. Coughtry, 11 Johns. Rep. 109; Renner v. Bank of Columbia, 9 Wheat. 581.||

(f) Lord North's case, Dy. 161. || Kemp v. Coughtry, 11 Johns. Rep. 107. Clark v. Richards, 1 Conn. Rep. 59. So, the plaintiff having a claim against the United States, for money in lieu of bounty lands, employed the defendant to procure the money from the United States, and executed a power of attorney containing a clause of substitution. On the trial, the weight of evidence was, that the plaintiff and defendant agreed that the money should be remitted by draft; the defendant, by an instrument in writing substituted V. and R. of Washington, or either of them, to procure the money, directing them by letter, to forward the money by mail, after taking out commission. The money was accordingly procured, and put into the Post Office at Washington, directed in a letter by V. and R. to the defendant. There was no very satisfactory proof that the defendant had received it. The circuit judge charged the jury, that by construction of law V. and R. were the agents of the defendant and not of the plaintiff; and the receipt of the money by them rendered the defendant liable; but that if such was not the construction of law, yet if the original direction of the plaintiff was, to have the money remitted in a draft, and the defendant changed it, then V and R. were his agents, and he was liable. At any rate, if they found the money was actually received by the defendant, he was liable. Verdict for

*2. The rule that agents are responsible for damage [*6] arising from breach of orders, negligence, or incompetence, admits of few or no exceptions in regard to agents who receive hire or reward for their service.(g) Yet, independently of this consideration, the confidence induced by undertaking any service for another, is a sufficient legal consideration to create a duty in the actual performance of it. Therefore a gratuitous or voluntary agent, though the degree of his responsibility is greatly inferior to that of a hired agent, is yet bound to exert such a portion of activity and care, as may reasonably satisfy the trust reposed in him.(h)

But a gratuitous promise does not render the person making it answerable, as a hired agent is, for neglecting to

the plaintiff. A new trial was refused; and Savage, C. J. delivering the opinion of the court, said: "The points ruled by the judge must be taken in reference to the facts of the case. Whether in general, the substitute is the agent of the attorney and not of the principal, we need not decide. The substitute is certainly the agent of the principal for some purposes. In this case, V. executed a release to the government, as the attorney of the plaintiff and his wife, which no doubt is valid and obligatory; and had he not forwarded the money to the defendant, he would be liable to pay it to the plaintiff. So far, therefore, as the judge expressed an opinion on the abstract proposition that V. and R. were the agents of the defendant, I am inclined to think he erred. But it seems to me to have no necessary connection with the case. The defendant was employed to procure certain moneys to which the plaintiff was legally entitled. The proper documents were furnished for that purpose, and the mode in which the remittance should be made is pointed out. The defendant directed a different mode of remittance, and the money was lost. Upon this state of facts, nothing can be clearer than that the defendant is liable. He constituted V. and R. his own agents for the purpose of remittance. Then the receipt of the money by them was, in effect, a receipt by the defendant; and makes him liable in this action." Foster v. Preston, 8 Cowen, 198. Where an agent may properly appoint a sub-agent, it is still his duty to oversee his conduct, and when anything appears to be wrong to take the earliest steps to secure his principal from loss. Amory v. Hamilton, 17 Mass. Rep. 108.||

(g) Shiells v. Blackburn, 1 H. Bl. 159. || Leverick v. Meigs, 1 Cowen, 645.||

(h) Coggs v. Barnard, 2 Ld. Raym. 909, and see Sir Wm. Jones's Treatise on the Law of Bailment, where this subject is fully and elaborately discussed.↓