COMMERCIAL AGENCY. A person, firm, or corporation engaged in the business of collecting information as to the financial standing, ability, and credit of persons en gaged in business and reporting the same to subscribers or to customers applying and paying therefor. "They have become vast and extensive factors in modern commercial transactions for furnishing information to retail jobbers as well as to wholesale mer chants. The courts are bound to know judi cially that no vendor of goods at wholesale can be regarded as a prudent business man if he sells to a retail dealer, upon a credit, without first informing himself through these mediums of information of the finan cial standing of the customer, and the credit to which he is fairly entitled ;" Furry v. O'Connor, 1 Ind. App. 573, 28 N. E. 103. See also Eaton, Cole & Burnham Co. v. Avery, 83 N. Y. 31, 38 Am. Rep. 389; Holmes v. Harrington, 20 Mo. App. 661.
How far the agency may contract against its ' own negligence. An exception is made to some extent in favor of such agencies to the rule against stipulations by a person against liability for his own negligence. The agency usually contracts that their agents shall be considered as the agents of their patrons, and that they shall not be liable for the negligence their agents. Where in an action upon such a contract the plaintiff contended that under it the agency was protected only against gross and not against ordinary negligence, it was held otherwise; Duncan v. Dun, 7 W: N. C. (Pa.) 246, Fed. Cas. No. 4,134.
Under a contract that the actual correct ness of the information was in no manner guaranteed, the agency was not liable for loss occasioned to a subscriber by the wilful and fraudulent act of a sub-agent in furnish ing false information; Dun v. Bank, 58 Fed. 174, 7 C. C. A. 152, 23 L. R. A. 687, reversing City Nat. Bank v. Dun, 51 Fed. 160. Where the inquiry was made concerning a grocer and the agency reported concerning the wrong person, who had the same name and was a grocer and saloon keeper, the plaintiff could not recover from the agency the value of goods sold on the strength of the report, the evidence being held to show that there was not such gross negligence as would render the agency liable; Xiques v. Brad street Co., 70 Hun 334, 24 N. Y. Supp. 48 ; but such a contract does not protect the agency from an error made in the publica tion of its books of reference giving the financial responsibility of merchants and others, and upon which a subscriber of the agency relied In selling goods and suffered a loss, and in such case it is unnecessary to thus establish the insolvency of the purchas er by suit before suing the agency ; Crew v. Bradstreet Co., 134 Pa. 161, 19 Atl. 500, 7 L. R. A. 661, 19 Am. St. Rep. 681.
When reports are privileged and when libellous. Such an agency is a lawful busi ness when lawfully conducted, but is not exempt from liability for false and defama tory publications when other citizens would not be exempt. Its communications to a per-' son interested in the information are privi leged even if false, if made in good faith and without malice, but if communicated to its subscribers generally they are not privi leged; Bradstreet Co. v. Gill, 72 Tex. 115, 9 S. W. 753, 2 L. R. A. 405, 13 Am. St. Rep. 768; Kingsbury v. Bradstreet Co., 116 N. Y. 211, 22 N. E. 365 ; Woodruff v. Bradstreet Co., 116 N. Y. 217, 22 N. B. 354, 5 L. R. A. 555 ; Pollasky v. Minchener, 81 Mich. 280, 46 N. W. 5, 9 L. R. A. 102, 21 Am. St. Rep. 516; Mitchell v. Bradstreet Co., 116 Mo. 226, 22 S. W. 358, 724, 20 L. R. A. 138, 38 Am. St. Rep. 592 ; State v. Lonsdale, 48 Wis. 348, 4 N. W. 390; Trussell v. Scarlett, 18 Fed. 214; King v. Patterson, 49 N. J. L. 417, 9 Atl. 705, 60 Am. Rep. 622 ; Erber v. R. G. Dun & Co., 4 McCrary 160, 12 Fed. 526; Johnson v. Bradstreet Co., 77 Ga. 172, 4 Am. St. Rep. 77. See also 3 Montreal, Q. B. 83; 18 Can. S. C. 222. The contract of the agen cy to furnish information to all its subscrib ers, including those who have no special in terest in it, is no defence to an action for libel; King v. Patterson, 49 N. J. L. 417, 9 Atl. 705, 60 Am. Rep. 622 ; nor was the fact that the information was given by printed signs of which each subscriber had the key; Sunderlin v. Bradstreet, 46 N. Y. 188, 7 Am. Rep. 322; the matter is privileged if com municated to the proper person by a clerk or agent as well as by the proprietor of the agency; King v. Patterson, 49 N. J. L. 417, 9 Atl. 705, 60 Am. Rep. 622; Erber v. R. G. Dun & Co., 12 Fed. 526; (but see Beardsley v. Tappan, 5 Blatchf. 497, Fed. Cas. No. 1,189, and Tappan v. Beardsley, 10 Wall. 427, 19 L. Ed. 974, criticised in the two cases just cited ;) or if specially reported upon prop er occasion to subscribers having special in terest in them, though not applied for by such subscribers ; Locke v. Bradstreet Co., 22 Fed. 771; but if a subscriber apply for special information from the agency, a false de nunciation of the person inquired about, coupled with the report, is actionable ; Brown v. Durham, 3 Tex. Civ. App. 244, 22 S. W. 868. So also are statements at first privileg ed but repeated and persisted in when known to be false, or, if otherwise privileged, made maliciously ; Erber v. R. G. Dun & Co., 12 Fed. 526 ; or if made recklessly and without due care and caution in making inquiry; Locke v. Bradstreet Co., 22 Fed. 771; Brdd street Co. v. Gill, 72 Tex. 115, 9 S. W. 753, 2 L. R. A. 405, 13 Am. St. Rep. 768; Loyal' v. Vedder, 40 Minn. 475, 42 N. W. 542.