18. Must execute accepted mandate.—To the ex tent of the powers and authority given to him, the agent must execute his mandate. That is his con tract, whether the authorization be expressed or im plied, tho he is not obliged to carry obedience to the point of committing a fraud or some wrongful or un lawful act. He can refuse to be made merely an in strument for wrongdoing. Strict performance will be exacted where he is paid for his work. If the man date is gratuitous, however, the courts will, as may ap pear just in the circumstances, moderate the rigor of the liability arising even from his negligence or fault— for it must be understood that an agent, who thru his negligence or fault in executing his mandate causes loss to his principal, will be held liable for such loss. Apparently, tho, where an' agent undertakes to do a thing gratuitously and does not do it, he will not be liable for his mere non-performance.
19. Delegation of agent's authority to a —The fundamental rule is that an agent, who in theory is employed because of his special skill, knowl edge, reputation or influence, must carry out in per son the mandate which he has accepted, unless helms express or implied authority to the contrary. He is appointed because the principal has confidence in him and his peculiar ability. So where he is appointed to act under circumstances which require the exer cise of discretion, for example, he may not, as a general rule, appoint anyone else to exercise that dis cretion in his place. Thus a broker, an auctioneer, the liquidator or the directors of a company must ordinarily carry out their mandate in person.
The rule, like other rules, suffers exception.
Where expressly or impliedly an agent has under taken to carry out a mandate in person, he cannot dele gate his authority; but in other cases his right to do so may be implied. Many forms of agency, especially mercantile agencies, cannot be carried out by the agent in person, and it is not intended that they should be. So it has been laid down in a leading case, that: The exigencies of business do from time to time render necessary the carrying out of the instructions of a principal by a person other than the agent originally instructed for the purpose, and where that is the case, the reason of the thing requires that the rule should be relaxed, so as, on the one hand, to enable the agent to appoint what has been termed a "sub-agent" or "substitute"; and, on the other hand, to constitute in the interests and for the protection of the prin cipal a direct privity of contract between him and such sub stitute. And we are of opinion that an authority to the
effect referred to may and should be implied where, from the conduct of the parties to the original contract of agency, the usage of trade, or the nature of the particular business which is the subject of the agency, it may reasonably be pre sumed that the parties to the contract or agency originally intended that such authority should exist, or where in the course of the employment unforeseen emergencies arise, which impose upon the agent the necessity of employing a substi tute.' In other words, the principal may know when he appoints an agent that the latter will employ substi tutes ; or it may be the custom or usage of the trade or business that sub-agerits should be engaged; or the act or duty may be performed without the exercise of any particular skill or discretion—in these, and under many other circumstances, the agent is free to employ others to fulfill his contract for him.
20. Relations of agent, sub-agent and principal.— The authorities are somewhat at variance in ruling upon these relations, and the Quebec law differs in details from the English law. It may be said, how ever, that where an agent appoints a sub-agent, with out the express or implied authority of the principal, the latter will not be bound by the acts of such sub agent. On the other hand, the agent is answerable for the acts of the person whom he, without authoriza tion, substitutes for himself. In an English case, an agent was held liable for the acts of his sub-agent who was appointed with the principal's Cer tainly he would be liable where, being authorized to appoint an unnamed substitute, he appointed some one who was notoriously unfit.
21. Duties of agent.—An agent should act with all the skill, care and diligence that could reasonably be expected of anyone engaged in his particular busi ness. There are well recogniZed standards of con duct and performance in most callings, and to these he will be expected to adhere ; more especially when he is being paid for his services. If he is acting gratuitously, the rigor of the rule is somewhat re laxed, and such skill and diligence as he possesses will be exacted or which he would exercise in the con duct of his own affairs. He is bound to keep his prin cipal's money and property separate and intact, to keep and render accounts of his administration, to keep proper books and vouchers, and to deliver and pay to his principal all that he has received under the authority of his mandate. He must pay interest upon such money of his principal as he employs for his own use.