His right to the Service of the Agent, and His Correlative Obligations. The principal is entitled to the service of the agent with respect to the matter in hand as though the agent were attending to his own business; and the latter will be considered, to that extent, as merging his own individuality and will be held to act entirely for the benefit of the principal. He cannot make a profit out of the business which he transacts for the principal derived from ac quired by him in the course of it, except con sistently with the engagements between the principal and agent. So where an agent, acting in a confidential capacity, obtained in formation of a defect in his principal's title and put in an outstanding claim through a third party, it was held that he could not profit by his purchase but held the title for his principal ; Kelley-Goodfellow Show Co. v. Scales, 12 U. S. App. 610, 58 Fed. 161, 7 C. C. A. 140. On the other band, a prin cipal cannot retain the fruit of his agent's acts and yet disclaim his authority in order to escape the corresponding obligation. Where a corporation obtained from the plaintiff the right to construct a road in front of his property and constructed it, it could not refuse to recognize its agent's au thority to bind it to pay the sum he agreed to pay ; Nutting v. R. Co., 21 App. Div. 72, 47 N. Y. Supp. 327. It is said in this case that agency cannot be proved by the uncor roborated testimony of the agent, nor can any implication of consent to the work done arise, in the absence of proof of knowledge that it was being done.
Their Rights and Liabilities. The rights to which principals are entitled arise from obligations due to them by their agents or by third persons.
Their Rights as against the Agents. The rights of principals in relation to their agents are—first, to call them to an account at all times in relation to the business of the agency; 2 Bouvier, Inst. 28. Second, when the agent violates his obligations to his principal, either by exceeding his au thority, or by positive misconduct, or by mere negligence or omissions in the dis charge of the functions of his agency, or in any other manner, and any loss or dam age falls on his principal, the latter will be entitled to full indemnity ; Story, Ag. § 217c; Dodge v. Tileston, 12 Pick. (Mass.) 328 ; 7 Beay. 176. But the loss of damage must be actual, and not merely probable or possible; Story, Ag. § 222 ; Paley, Ag. 7, 8, 74, 75. But see id. 74, note 2. Third, where both the principal and agent may maintain a suit against a third person for any matter re lating to the agency, the principal has a 'right to supersede the agent by suing in his own name ; and he may by his own inter vention intercept, suspend, or extinguish the right of the agent under the contract ; Story, Ag. § 403 ; 4 Camp. 194; Taintor v. Prendergast, 3 Hill (N. Y.) 72, 38 Am. Dec. 618. But, as we shall presently see, an ex ception to this rule arises in favor of the agent, to the extent of any lien, or other in terest, or superior right, he may have in the property; Story, Ag. §§ 393, 397, 407, 424.
The principal has a right to determine or revoke the authority given to his agent, at his own mere pleasure, where not otherwise agreed between them ; Willcox & Gibbs Sew ing Mach. Co. v. Ewing, 141 U. S. 627, 12 Sup. Ct. 94, 35 L. Ed. 882.
Agents are not entitled to use the ma terials gained or collected by them in the cause of their employment to the detriment of their principal; [1893] 1 Ch. 218.
Their Rights with Respect to Third sons. In general, the principal, as against third persons, has a right to all the advan tages and benefits of the acts and contracts of his agent, and is entitled to the same remedies against such third persons, in re spect to such acts and contracts, as if they were made or done with him personally ; Story, Ag. §§, 418, 420; Paley, Ag. 323; Brewster v. Saul, 8 La. 296; 2 Stark. 443. But to this rule there are the following ex ceptions. First, when the instrument is un der seal, and it has been exclusively made between the agent and the third person, as, for example, a charter-party or bottomry bond made by the master of a ship in the course of his employment, in this case the principal cannot sue or be sued on it ; Story, Ag. § 422; Dubois v. Canal Co., 4 Wend. (N. Y.) 285. Second, when an exclusive credit is given to and by the agent, and therefore the principal cannot be considered in any man ner a party to the contract, although he may have authorized it and be entitled to all the benefits arising from it. The case of a foreign factor buying or selling goods is an example of this kind ; he is treated, as be tween himself and the other party, as the sole contractor, and the real principal can not sue or be sued on the contract. This, it has been well observed, is a general rule of commercial law, founded upon the known usage of trade ; and it is strictly adhered to, for the safety and convenience of for eign commerce ; Story, Ag. § 425; 9 B. & C. 87 ; 4 Taunt. 574. Third, when the agent has a lien or claim upon the property bought or sold, or upon its proceeds, which is equal to or exceeds the amount of its value, the principal cannot sue without the consent of the agent ; Story, Ag. §§ 403, 407, 424.
But contracts are not unfrequently made without mentioning the name of the prin cipal. In such case he may avail himself of the agreement; for the contract will be treated as that of the principal as well as of the agent. If, however, the person with whom the contract was made, bona fide dealt with the agent as .owner, he will be entitled to set off any claim he may have against the agent, in answer to the demand of the principal ; and the principal's right to enforce contracts entered into by his agent is affected by every species of fraud, misrepresentation, or concealment of the agent which would defeat it if proceeding from himself; Story, Ag. §§ 420, 440; 2 Kent 632; Paley, Ag. 624 ; 3 B. & P. 490; Hogan v. Shorb, 24 Wend. (N. Y.) 458.