pal.(a) And on the other hand, if he thereby obtain an

(a) Beawes, Lex Merc. 41, 43; Malyne, 154. 4 Catlin v. Bell, 4 Campb. 184. In this last case, goods, which the master of a vessel had undertaken

the parties, as it must be presumed to have been when the advances were made; and it would enable the plaintiff to impair the defendant's security, at his own will and pleasure, for an unlimited time, if he were disposed so to do. To sanction such a right would be to operate injuriously on the interests of consignees, and would check the continuance of those large advances, by the aid of which a flourishing trade has been carried on for years past, to the great profit of the mercantile community. For although such advances may sometimes lead to overtrading, and may induce individuals to venture upon rash speculations, yet it cannot be doubted, that on the whole they have contributed to the increase of the wealth and prosperity of the country."

If foreign merchants send out, by their general agent, written orders to their factors in this country, to purchase tobacco on their account, but to ship it in the name of the factor, and by those orders the factor is referred to the verbal communications of the general agent, who is stated to be sent out on purpose to superintend the shipment, and he undertakes to order the tobacco to be shipped in the name of another person, and declares he has authority from the foreign merchants thus to control and vary their orders; the factor is justified in obeying the new orders of the general agent, in opposition to his written instructions. This reference to the verbal communications of the general agent, unqualified by any restriction whatever, is a declaration of complete confidence placed at least in his veracity by the principals, and is a full authority given by them to the factor to credit the representations which he should make. Manella v. Barry, 3 Cranch, 415. 1 Liverm. Ag. 371.

Letters of instruction from a merchant to his consignee and factor, not expressly mentioning a price below which goods consigned for sale shall not be sold, but merely communicating a belief that the excellent quality of the goods will command a certain price, and expressing it as the sum confidently expected to be realized on a sale, will not be construed as fixing the minimum price at which the goods shall be sold; and a sale for a less sum by the factor, in good faith and without negligence, will not be deemed a breach of instructions, nor render the factor liable in damages. Woodworth, J. said:" The letter of June 18, 1816, accompanying the consignment of the wines says, its price is £52 per pipe,' expressing a hope that it may be readily sold, being of superior quality. The defendants, in reply, stated that the market was overstocked, that saving sales could not then be effected; and that the plaintiffs might be assured of their best exertions, when it could be without a sacrifice. I incline to think the plaintiffs did not intend, by the instructions, to fix the minimum price at £52. The expressions

to sell in the West Indies, had been delivered to him for that specific purpose; and he, being unable to procure a market for them there, had sent

seem rather to have proceeded from a belief that the excellent quality of the wine would command that sum; and, therefore, instead of directing generally, to sell for the best price that could be obtained, they specify the sum confidently expected to be realized; probably to prevent precipitancy in the disposition of the property, and induce greater exertion if, unfortunately, they had consigned to an unfavorable market. The fact that the instructions are somewhat ambiguous, supports this construction; for if an express limitation was in view, at the time, it is reasonable to expect that it would have been explicitly given. What was the state of the market was unknown. If unfavorable, it must have occurred to the plaintiffs, how are the defendants to act? Such a state of things would seem to call for explicit directions as to the minimum price. The omission, I apprehend, was not accidental; the plaintiffs intending not to interfere with the sound discretion of their agents.—The answer of the defendants appears to be in accordance with this construction. They would close the sales when it could be done without a sacrifice.' Such was undoubtedly their intention, as faithful agents, anxious not to disappoint the expectations of their principal. Had they considered themselves expressly restricted, it is more probable they would have suggested the improbability of effecting a sale on the terms required, and the propriety of vesting in them, a discretion to act as circumstances might require. The market was such as to warrant this course. But admitting that the words of the letter will bear a stricter construction, or that the defendants at the time, may have supposed that they were limited; this is not conclusive upon them. The question is not whether the defendants, in the first instance, considered themselves limited, but were they so by the plaintiff's instructions." Vianna v. Barclay, 3 Cowen, 281.

The principal's instructions to his factor ought to be unequivocal. De Tastet v. Crousillat, post 18, n. (1). If ambiguous, the factor has the benefit of the doubt. Kingston v. Kincaid, 1 Wash. C. C. Rep. 454.

A substantial compliance may, under circumstances to be left to the jury, be equivalent to a literal performance of the principal's instructions. Parkhill v. Imlay, 15 Wend. 451.

A factor for the purchase of goods has no right to impose terms upon his principal, as the condition of delivery, which were not sanctioned by the order for making the purchase. By imposing such terms, he varies his character from that of factor, to a vendor, and until acceptance by the principal subject to the condition, he, as a vendor, is liable for the destruction of the property previous to delivery. Thus, it was held by the Supreme Court of New York, that where orders are given to a factor, to purchase at an extended credit, and to forward goods of a particular description, and from the character of the market for which they are intended, it is important that they should be delivered forthwith; and the purchase is made, and the goods forwarded to a correspondent of the factor, with instructions

them by another person in search of a market to the Carraccas, where they were destroyed by an earthquake. Lord Ellenborough held, that a special confidence having been reposed in the master as to the sale of the goods, he had no right to hand them over to another person and to give them a new destination; and the plaintiff (the owner of the goods) recovered against him in an action for not accounting to her. So, Marshall, C. J. says; "that an agent is bound to pursue the orders of his principals, and is answerable for any injury consequent on his departing from them, however fair may have been his motives for such departure, is a plain principle of law which has not been drawn into question." Manella v. Barry, 3 Cranch, 415. So, a merchant of Philadelphia sent a cargo of coffee to his correspondent at Bourdeaux, and wrote to him as follows: "you will please to make sale of the coffee immediately on arrival, and forward the returns in the articles under mentioned, by the same schooner." It was held, that it was the duty of the agent to sell immediately on arrival, no matter at what loss, if he could; or as soon as he could: he had no right to exercise any discretion. Courcier v. Ritter, 4 Wash. C. C. Rep. 449. A case (Bertram v. Godfrey, 1 Knapp's Privy Council Rep. 381,) which seems to be analogous in principle, is mentioned in Russell's Treatise on Factors and Brokers, 52. "Where a commission was given to a mercantile house to sell and transfer stock, when the funds should be at 85 per cent, or above that price,' such commission was construed to be a particular commission, under which the agent was bound to sell when the funds reached 85; and not a general commission, under which he might defer selling until the funds got above that price." See post, 208.

The principal being about to proceed on a distant voyage, ordered insurance to be made on his life for £3000, and the defendant undertook to pay the premium, and have the business completed, which was done. The de

not to deliver them to the principal until paid for in cash, or approved paper given, payable in ninety days, when the factor had purchased at a credit of six months; and the goods after arrival, and before delivery are consumed by fire, while in the possession of the correspondent of the factor, the loss falls upon the factor and not upon the principal. Sutherland J. in delivering the opinion of the court, says: "The terms of the defendants order, taken in connection with the evidence, clearly show that the defendant's expected the goods to be purchased upon an extended credit, and that their immediate delivery was considered all-important; that the sale for the season would otherwise be lost, such, then, was the legal effect of the defendants' order; and the plaintiff in undertaking to exact immediate payment, and refusing to deliver the goods until paid for, if he intended to be considered as factor or agent in the transaction, violated his instructions and made the goods his own; he became in fact, a vendor offering terms of sale. There is no evidence to show the defendant's acceptance of those terms, and the goods, therefore, at the time of their destruction, were at the risk of the plaintiff." Williams v. Littlefield, 12 Wend. 362.||

fendant afterwards, alleging that there was a mistake in the order, without the knowledge of the principal, procured the policy to be cancelled, and the premium returned, and another policy to be executed for £450. The principal having died within a year, the defendant was held responsible to his legal representative for the amount of the original policy, (the subsequent policy being excluded from the account,) deducting the premium. Gray v. Murray, 3 Johns. Ch. Rep. 167, 83.

Where an agent voluntarily disobeys the instructions of his principal, and converts to his own use money belonging to his principal, to which a definite and specific destination was given, and the article which he was directed to buy subsequently acquires additional value, the agent has been held responsible, not merely for the money with interest, but for the article. Short v. Skipwith, 1 Brockenbrough's Rep. 103.

Where an agent having a sum of money in his hands, belonging to his principal, is directed to remit it by purchasing and forwarding a bill of exchange, he should purchase the bill with such money, and not by his own credit. Hays v. Stone, 7 Hill, 128.

The following is a case having some analogy as to its facts with Catlin v. Bell, ubi supra; but the decision appears to have turned upon the custom or usage of trade. It was held that a commission merchant, receiving goods on general consignment from a distant owner, and making advances therefor, might for his own interest and safety, be authorized by the usage of the place in certain circumstances, at his discretion, and for the benefit of himself and the consignor, to ship the goods to a more advantageous market, or one deemed so, especially if a sale at the place would not indemnify him for his advances; and that if such was the known custom of the place (New Orleans,) it would be reasonable to sustain the authority. Wallace v. Bradshaw, 6 Dana's (Kentucky) Rep. 385, cited 3 Kent's Comm. 260, n. b.

Mr. Livermore states the subject very perspicuously. He says; "when the power of an agent is limited by instructions, he is bound to pursue those instructions. If he deviate from his orders, though with a view to his employer's interest, he will be liable for the consequences. For example, if he gives credit when his instructions are to sell for cash, or a longer credit than directed, for the sake of a better price and the buyer becomes insolvent, he will be answerable for the debt. Emerigon reports two cases in which the agent was directed to ship goods on board vessels of a particular denomination, as a felucca, or a ship, and he put them on board a tartan, or a pink, which were shipwrecked and the goods lost. In these cases the agent was condemned to make good the loss.-Necessity will sometimes justify a factor in acting contrary to orders; particularly if induced by some cause not in the contemplation of the principal, at the time the orders were given. As if the factor be limited to sell goods at a particular price, and the goods are of a perishable nature, and not in a condition to be kept, and the factor has no time nor opportunity for consulting with his principal; in such case, I apprehend, he may sell under the price limited, to prevent a total loss." 1 Liv. Pr. & Ag. 368. So, a supercargo may under peculiar circumstances

advantage, or make a profit, he will not be allowed to retain it; but must account to his principal for the whole, notwithstanding that he bore the risk of failure.(b)

But though every excess of authority is at the hazard of the agent, the principal, by taking the benefit of his act, discharges the agent and embraces the risk himself.(A)

be authorized in departing from, or exceeding his instructions. Story J. "I take it to be clear, that if by some sudden emergency, or supervening necessity, or other unexpected event, it becomes impossible for the supercargo to comply with the exact terms of his instructions, or a literal compliance therewith would frustrate the objects of the owner, and amount to a total sacrifice of his interests, it becomes the duty of the supercargo, under such circumstances, to do the best he can in the exercise of a sound discretion, to prevent a total loss to his owner; and if he acts bona fide, and exercises a reasonable discretion, his acts will bind the owner. He becomes in such a case, an agent from necessity for the owner. Suppose, for example, that a cargo of a perishable nature is shipped on a voyage, and it is to be carried to a particular port of destination, and there sold, and the ship should in the course of the voyage meet with a storm, which should disable her, and she should go into a port of necessity to refit; and that the cargo should be found so much damaged, that the whole must perish before her arrival at the port of destination; would not the supercargo have a right to sell it there, in order to prevent a total loss, although no such case was contemplated in his orders? Certainly he would have a right to sell; and indeed it would become his duty, under such circumstances, to sell. In truth, in all voyages of this sort, there is an implied authority to act for the interest and benefit of the owner, in all cases of unforseen necessity and emergency, created by operation and intendment of law." Forrestier v. Bordman, 1 Story's Rep. 51. In Judson v. Sturges, 4 Day's (Connecticut) Rep. 556, where an agent was sent abroad with goods of his principal to sell, but the master left the property at a place short of the original destination; it was held, that the agent under the circumstances of the case had authority to pledge the credit of his principal for another vessel. Another exception to the general rule was intimated in a case cited infra. 115. And see Arthur v. The Schooner Cassius, 2 Story's Rep. 81-97. Gould v. Rich, 7 Metcalf, 538. Post, 209, n.||

(b) Beawes, 41; Russell v. Palmer, 2 Wils. 325; Shiells v. Blackburn, 1 H. Bl. 161. || Parkist v. Alexander, 1 Johns. Ch. Rep. 394-7; Benson v. Heathorn, 1 Yo. & Coll. C. C. 326.||

(A) Wolf v. Horncastle, 1 Bos. & Pull. 316; Pratt v. Putnam, 13 Mass. Rep. 361; Copeland v. The Mercantile Ins. Co. 6 Pick. 203; Forrestier v. Bordman, 1 Story's Rep. 43; Courcier v. Ritter, 4 Wash. C. C. Rep. 549; Post, 171, n. (o); Hays v. Stone, 7 Hill, 128.||