Rzghts and privileges. A. to his principal, an agent is ordinarily entitled to compensation for his services, commonly called a commission, which is lated either by special agreement, by the usage of trade, or by the presumed intention of the parties. Story, Ag. 324, 326; Paley, Ag. 100, 101 ; 8 Bingh. 65 ; 1 Caines, N. Y. 349 ; 2 id. 357. In general, he must have faithfully performed the whole service or duty before he can claim any commissions, Story, Ag. 329, 331 ; 1 Carr. & P. 384 ; 4 id. 289 ; 7 Bingh. 99 ; 16 Ohio, 412. He may forfeit his right to commissions by gross skilfulness, by gross negligence, or gross conduct, in the course of his agency, 3 Campb.
451 ; 7 Bingh. 569 ; 12 Pick. Mass. 328 ; as. by not keeping regular accounts, 8 Yes. Ch. 48 ; 11 id. 358 ; 17 Mass. 145 ; 2 Johns. Ch. N.Y. 108 ; by violating his instructions ; bq wilfully confounding his own property witu that of his principal, 9 Beay. Rolls, 284; 5 Bos. & P. 136 ; 11 Ohio, 363 ; by fraudulently misapplying the funds of his principal, 3 Chitty, Comm. & M. 222 ; by embarking the property in illegal transactions ; or by doing any thing which amounts to a betrayal of his trust. Story, Ag. N 331-334 ; Paley, Ag. 104, 105 ; Story, Eq. Jur. 468 ; 12 Pick. Mass. 328, 332, 334.
The agent has a right to be reimbursed his advances, expenses, and disbursements reasonably and in good faith incurred and paid, without any default on his part, in the course of the agency, 2 Livermore, .Ag.11-13 ; Story, Ag. /i 335, 336 ; Story, Bailm. N 196, 197, 357, 358; Paley, Ag. 107, 108 ; 5 Barnew. & C. 141 ; 3 Binn. Penn. 295 ; 11 Johns. N. Y. 439 ; 4 Halst. Ch. N. J. 657 ; and also to be paid interest on such advancements and disbursements whenever it may fairly be pre sumed to have been stipulated for, or to be due to him. Story, Ag. 338 ; 2 Livermore, Ag. 17 ; 2 Bouvier, Inst. 36 ; 15 East, 223 ; 3 Campb. 467 ; 7 Wend. N. Y. 315 ; 3 Caines, 226 ; 3 Binn. Penn. 295. But he cannot re cover for advances and disbursements made in the prosecution of an illegal transaction, though sanctioned by or even undertaken at the request of his principal, Story, Ag. 344; 1 Livermore, Ag. 14-21; 3 Barnew. & C. 639; and he may forfeit all remedy against his principal even for his advances and disburse ments made in the course of legal transac tions by his own gross negligence, fraud, or misconduct, Story, Ag. 348 ; 12 Wend. N. Y. 362; 12 Pick. Mass. 328, 332; 20 id. 167; nor will he be entitled to be reimbursed his expenses after he has notice that his author ity has been revoked. Story, Ag. 349 ; 2 Term, 113 ; 8 id. 204 ; 3 Brown, Ch. 314.
The agent may enforce the payment of a debt due him from his principal on account of the agency, either by an action at law or by a bill in equity, according to the nature of the case ; and he may also have the bene fit of his claim by way of set-off to an action of his principal against him, provided the claim is not for uncertain damages, and is in other respects of such a nature as to be the subject of a set-off. 2 Livermore, Ag. 34; Story, Ag. fl 350, 385 ; 4 Burr, 2133 ; 6 Cow. N.Y. 181; 11 Pick. Mass. 482. He has also a particular right of lien for all his necessary commissions, expenditures, advances, and ser vices in and about the property intrusted to his agency, which right is in many respects analogous to the right of set-off. Story, Ag 373 ; 2 Livermore, Ag. 34 ; Paley, Ag. Factors have a general lien upon the goods of their principal in their possession, and upon the price of such as have been lawfully sold by them, and the securities given there for. Story, Ag. 376 ; Paley, Ag. 128, 129 ; 2
Kent, Comm. 640 ; 26 Wend. N. Y. 367 : 10 Paige, Ch. N. Y. 205. There are other cases in which a general lien exists in regard to particular classes of agents, either from usage, from a special agreement of the par ties, or from the peculiar habit of dealing between them : such, for example, as insu rance brokers, bankers, common carriers, at torneys at law and solicitors in equity, pack ers, calico-printers, fullers, dyers, and wharf ingers. Story, Ag. 379-384. See LIEN.
As to third persons, in general, a mere agent who has no beneficial interest in a contract which he has made on behalf of his principal cannot support an action thereon. 1 Livermore, Ag. 215. An agent acquires a right to maintain an action upon a contract against third persons in the following cases. First, when the contract is in writing, and made expressly with the agent, and imports to be a contract personally with him; as, for example, when a promissory note is given to the agent, as such, for the benefit of the prin cipal, and the promise is to pay the money to the agent eo nomine, Story, Ag. 393, 394; 1 Livermore, Ag. 215-221; 3 Pick. Mass. 322; 16 id. 381; 5 Vt. 500; and it has been held that the right of the agent in such case to sue in his own name is not confined to an express contract ; thus, it has been said that one holding, as mere agent, a bill of exchange, or promissory note, indorsed in blank, or a check or note payable to bearer, may yet sue on it in his own name. Paley, Ag., Dunl. ed. 361, note. Second, the agent may maintain an action against third persons on contracts made with them, whenever he is the only known and ostensible principal, and conse quently, in contemplation of law, the real contracting party, Russell, Fact. & B. 241, 244; Paley, Ag. 361, note; Story, Ag. 393; as, if an agent sell goods of his principal in his own name, as though he were the owner, he is entitled to sue the buyer in his own name, 12 Wend. N. Y. 413 ; 5 Maule & S. 833; and, on the other hand, if he so buy, he may enforce the contract by action. The re nunciation of the agent's contract by the prin cipal does not necessarily preclude the agent from maintaining an action, but he will still be entitled to sue the party with whom he has contracted for any damages which he may have sustained by reason of a breach of contract by the latter. Russell, Fact. & B. 243, 244; 2 Barnew. & Ald. 962. Third, the right of the agent to sue in his own name exists when, by the usage of trade or the general course of business, he is authorized to act as owner, or as a principal contracting party, although his character as agent is known. Story, Ag. ii 393. Fourth, where the agent has made a contract in the subject, matter of which he has a special interest or property, he may enforce his contract by ac tion, whether he held himself out at the time to be acting in his own behalf or not, 1 Liver more, Ag. 215-219; Story, Ag. 393 ; 27 Ala. N. s. 215: fur example. an auctioneer who sells the goods of another may maintain an action for the price, though the sale be on the premises of the owner of the goods, be cause the auctioneer has a possession coupled with an interest. 2 Esp. 493 ; 1 II. Blaekst. 81, 84, 85. But this right of the agent to bring an action in his own name is subordi nate 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. 1 Livermore, Ag. 221; Story, Ag. 403 ; 3 Hill, N. Y. 72, 73 ; 6 Serg. & R. Penn. 27 ; 4 Campb. 194.