PRINCIPAL AND AGENT 1. Definitions and distinctions.—Mandate has been defined as a contract by which a person, called the mandator or principal, commits a lawful business to the management of another, called the mandatory or agent, who by his acceptance obliges himself to per form it. The acceptance may be implied from the acts of the agent, and in some cases from his silence. Or again, an agent is a person having express or im plied authority to represent or act on behalf of an other person, who is called his principal. There are general agents and special agents.
A general agent has authority to act for his prin cipal in all matters, or in all matters concerning a par ticular trade or business, or of a particular nature; or to act in the ordinary course of his business, trade or profession as an agent, on behalf of his principal—as a solicitor, a factor, a broker.
A special agent is an agent who only has authority to do some particular act, or represent his principal in some particular transaction, such act or transaction not being in the ordinary course of his trade, profes sion, or business as an agent.
A factor or commission merchant is an agent who is employed to buy or sell goods for another, either in his own name or in the name of his principal, for which he receives a compensation commonly called a commission. He is a bailee and is intrusted by his principal with the possession or control of the goods. Ordinarily he is entitled to receive payment and to give a valid and binding discharge. If his principal resides in another country, he is personally liable to third persons with whom he contracts, whether his principal's name be known or not. The principal is not liable on such contracts to third persons, unless it is proved that the credit was given to both principal and factor, or to the principal alone. He has a lien upon the goods in his hands for any balance of ac count in his favor. If he voluntarily relinquishes pos session, his lien is lost.
A broker is an agent who exercises the trade and calling of negotiating between parties, the business of buying and selling or any other lawful transactions. He may be the mandatory of both parties and bind both by his acts in the business for which he is en gaged by them. He is not intrusted with the posses sion or control of the goods or other property which he may have contracted to buy or sell.
An auctioneer is an agent whose ordinary course of business is to sell by public auction to the highest bid der, goods or other property of which he may or may not have the possession or control. He sells for cash, unless he has authority to accept payment in goods or in negotiable paper, or to sell on credit. The adjudi cation of a thing to any person on his bid or offer, and the entry of his name in the sale book of the auc tioneer, completes the sale to him and satisfies the statute of frauds, i.e., enables the auctioneer or seller
to bring action without the necessity of making other written proof, of the sale. Unless authorized, he can not warrant the goods, and he cannot rescind a sale.
A del credere agent is a mercantile agent who, in consideration of an extra remuneration, which is called a del credere commission, guarantees to his principal that third persons with whom he contracts on behalf of the principal shall duly perform their contracts. In effect, he makes himself a surety for the due per formance of the contract by the person with whom lie deals.
2. How constituted.—It has already been said that agency is a contractual relation. The relation will not exist unless there is the consent, express or im plied, of both principal and agent. The rule suffers exception where, in case of necessity, the relation is imposed by operation of law. So that agency will exist where there is an express appointment by a prin cipal, or by someone duly authorized and acting on his behalf ; and an express acceptance by the agent or by someone on his behalf similarly authorized. But the assent of the principal may be implied from his acts; or when another person occupies such a position that, as a matter of common usage, he would be un derstood to be acting with the approval and on be half of the principal. Thus a coachman in livery entered into a contract for the hire of horses, the per son from whom he hired them giving credit to the master. The coachman had, in fact, agreed with the master to pay for the hire of the horses, but the per son from whom they were hired had no notice of the agreement. It. was held that the master was liable on the contract. A wife gave orders for furniture to be supplied and work to be done at the house where she resided with her husband, the husband being present, giving directions as to the work. It was held that the husband was liable on the orders, altho he had ex pressly forbidden his wife to pledge his credit, and it had been agreed between them she should pay for the furniture and work, the plaintiff having had no notice of such prohibition or agreement. The assent of the agent may also be implied when he so acts on behalf of another person that, in an action by the lat ter, he could not be heard to deny that in fact the agency existed. But where a person assumes to act for another, the consent of that other will not be im plied merely because he raises no objection, unless the circumstances support a presumption that he has au thorized the act.