英文法律词典 A-77

AGENT, practice. An agent is an attorney who transacts the business of another attorney.

2. The agent owes to his principal the unremitted exertions of his skil and ability, and that all his transactions in that character, shall be distinguished by punctuality, honor and integrity. Lee's Dict. of Practice.

AGENT, international law. One who is employed by a prince to manage his private affairs, or, those of his subjects in his name, near a foreign, government. Wolff, Inst. Nat. 1237.

AGENT, contracts. One who undertakes to manage some affair to be transacted for another, by his authority on account of the latter, who is called the principal, and to render an account of it.

2. There are various descriptiona of agents, to whom different appellations are given according to the nature of their employments; as brokers, factors, supercargoes, attorneys, and the like; they are all included in this general term. The authority is created either by deed, by simple writing, by parol, or by mere employment, according to the capacity of the parties, or the nature of the act to be done. It is, therefore, express or implied. Vide Authority.

3. It is said to be general or special with reference to its object, i.e., according as it is confined to a single act or is extended to all acts connected with a particular emplowment.

4. With reference to the manner of its execution, it is either limited or unlimited, i. e. the agent is bound by precise instructions, (q. v.) or left to pursue his own discretion. It is the duty of an agent, 1, To perform what he has undertaken in relation to his agency. 2, To use all necessary care. 3, To render an account. Pothier, Tr. du Contrat de Mandat, passim; Paley, Agency, 1 and 2; 1 Livrm. Agency, 2; 1 Suppl. to Ves. Jr. 67, 97, 409; 2 Id. 153, 165, 240; Bac. Abr. Master and Servant, 1; 1 Ves. Jr. R. 317. Vide Smith on Merc. Law, ch. 3, p. 43,. et seq. and the articles Agency, Authority, and Principal.

5. Agents are either joint or several. It is a general rule of ther common law, that when an authority is given to two or more persons to do an act, and there is no several authority given, all the ageuts must concur in doing it, in order to bind the principal. 3 Pick. R. 232; 2 Pick. R. 346; 12 Mass. R. 185; Co. Litt. 49 b, 112 b, 113, and Harg. n. 2; Id. 181 b. 6 Pick. R. 198 6 John. R. 39; 5 Barn. & Ald. 628.

6. This rule has been so contrued that when the authority is given jointly and severally to three person, two cannot properly execute it; it must be done by all or by one only. Co. Litt. 181 b; Com. Dig. Attorney, C 11; but if the authority is so worded that it is apparent, the principal intended to give power to either of them, an execution by two will be valid. Co. Litt. 49 b; Dy. R. 62; 5 Barn. & Ald. 628. This rule aplies to private agencies: for, in public agencies an authority executed by a major would be sufficient. 1 Co. Litt. 181b; Com. Dig. Attorney, C 15; Bac. Ab. Authority, C; 1 T. R. 592.

7. The rule in commercial transactions however, is very different; and generally when there are several agents each possesses the whole power. For example, on a consignment of goods for sale to two factors, (whether they are partners or not,) each of them is understood to possess the whole power over the goods for the purposes of the consigment. 3 Wils. R. 94, 114; Story on Ag. 43.

8. As to the persons who are capable of becoming agents, it may be observed, that but few persons are excluded from acting as agents, or from exercising authority delegated to them by others. It is not, therefore, requisite that a person be sui juris, or capable of acting in his own right, in order to be qualified to act for others. Infants, femes covert, persons attainted or outlawed, aliens and other persons incompetent for many purposes, may act as agents for others. Co. Litt. 62; Bac. Ab. Authority, B; Com. Dig. Attorney, C 4; Id. Baron and Feme, P 3; 1 Hill, S. Car. R. 271; 4 Wend. 465; 3 Miss. R. 465; 10 John. R. 114; 3 Watts, 39; 2 S. & R. 197; 1 Pet. R. 170.

9. But in the case of a married woman, it is to be observed, that she cannot be an agent for another when her husband expressly dissents, particularly when he may be rendered liable for her acts. Persons who have clearly no understanding, as idiots and lunatics cannot be agents for others. Story on Ag. 7.

10. There is another class who, though possessing understanding, are incapable of acting as agents for others; these are persons whose duties and characters are incompatible with their obligations to the principal. For example, a person cannot act as agent in buying for another, goods belonging to himself. Paley on Ag. by Lloyd, 33 to 38; 2 Ves. Jr. 317.

11. An agent has rights which he can enforce, and is, liable to obligations which he must perform. These will be briefly considered:

1. The rights to which agents are entitled, arise from obligations due to them by their principals, or by third persons.

12 – 1. Their rights against their principals are, 1., to receive a just compensation for their services, when faithfully performed, in execution of a lawful agency, unless such services, are entirely gratuitous, or the agreement between the parties repels such a claim; this compensation, usually called a commission, is regulated either by particulaar agreement, or by the usage of trade, or the presumed intention of the parties. 8 Bing. 65; 1 Caines, 349; 2 Caines, 357.

2. To be reimbursed all their just advances, expenses and disbursemnts made in the course of their agency, on account of, or for the benefit of their principal; 2 Liverm. on Ag. 11-23; Story on Ag. 335; Story on Bailm. 196; Smith on Mer. Law, 56; 6 East, 392; and also to be paid interest upon such advances, whenever from the nature of the business, or the usage of trade, or the particular agreement of the parties, it may be fairly presumed to have been stipulated for, or due to the agent. 7 Wend. 315; 3 Binn. 295; 3 Caines, 226; 3 Camp. 467; 15 East, 223.

13. Besides the personal remedies which an agent has to enfored his claims against his principal for his commissions and, advancements, he has a lien upon the property of the principal in his hand. See Lien, and Story on Ag. 351 to 390.

14. – 2. The rights of agents against third penons arise, either on contracts made between such third persons and them, or in consequence of torts committed by the latter. 1. The rights of agents against third persons on contracts, are, 1st, when the contract is in writing and made expressly with the agent, and imports to be a contract personally with him, although he may be known to act as an agent; as, for example, when a promissory note is given to the agent as such, for the benefit of his principal, and the promise is to pay the money to the agent, oe nomine. Story on Ag. 393, 394; 8 Mass. 103; see 6 S.& R. 420; 1 Lev. 235; 3 Camp. 320; 5 B.& A. 27. 2d. When the agent is the only known or ostensible pincipal, and therefore, is in contemplation of law, the real contracting party. Story on Ag. 226, 270, 399. As, if an agent sell goods of his principal in his own name, as if he were the owner, he is entitled to sue the buyer in his own name; although his prncipal may also sue. 12 Wend. 413; 5 M.& S. 833. And on the other hand, if he so buy, he may enforce the contract by action. 3d. When, by the usage of trade, the agent is authorized to act as owner, or as a principal contracting party, although his character as agent is known, he may enforce his contract by action. For example, an auctioner, who sells the goods of another may maintain an action for the price, because he has a possession coupled with an interest in the goods, and it is a general rule, that whenever an agent, though known as such, has a special property in the subject-matter of the contract, and not a bare-custody, or when he has acquired an interest, or has a lien upon it, he may sue upon the contract. 2 Esp. R. 493; 1 H. Bl. 81, 84; 6 Wheat. 665; 3 Chit. Com.Law, 10; 3 B. & A. 276. But this right to bring an action by agents is subordinate 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. 7 Taunt. 237, 243; 2 Wash. C. C. R. 283. 2. Agents are entitled to actions against third persons for torts committed against them in the course of their agency. 1st. They may maintain actions, of trespass or trover against third persons for any torts or injuries affecting their possession of the goods which they hold as agents. Story on Ag. 414; 13 East, 135; 9 B. & Cressw. 208; 1 Hen. Bl. 81. 2d. When an agent has been induced by the fraud of a third person to sell or buy goods for his principal, and he has sustained loss, he may maintain an action against such third person for such wrongful act, deceit, or fraud. Story on Ag. 415.

15 – 2. Agents are liable for their acts, 1, to their principals; and 2, to third person.

16. – 1. The liabilities of agents to their principals arise from a violation of their duties and obligations to the principal, by exceeding their authority, by misconduct, or by any negligence or omission, or act by which the principal sustains a loss. 3 B. & Adol. 415; 12 Pick. 328. Agents may become liable for damages and loss under a special contract, contrary to the general usages of trade. They may also become responsible when charging a del credere commission. Story on Ag. 234.

17. – 2. Agents become liable to third persons; 1st, on their contract; 1, when the agent, undertakes to do an act for another, and does not possess a sufficient authority from the principal, and that is unknown to the other party, he will be considered as having acted for himself as a principal. 3 B. 9 Adol. 114. 2. When the agent does not disclose his agency, he will be considered as a principal; 2 Ep. R. 667; 15 East, 62; 12 Ves. 352; 16 Martin's R. 530; and, in the case of agents or factors, acting for merchants in a foreign country, they will be considered liable whether they disclose their principal or not, this being the usage of the trade; Paley on Ag. by Lloyd, 248, 373; 1 B.& P. 368; but this presumption may be rebutted by proof of a contrary agreement. 3. The agent will be liable when he expressly, or by implication, incurs a personal responsibility. Story on Ag. 156-159. 4. When the agent makes a contract as such, and there is no other responsible as principal, to whom resort can be had; as, if a man sign a note as "guardian of AB," an infant; in that case neither the infant nor his property will be liable, and the agent alone will be responsible. 5 Mass. 299; 6 Mass., 58. 2d. Agents become liable to third persons in regard to torts or wrongs done by them in the course of their agency. A distinction has been made, in relation to third persons, between acts of misfeasance and non-feasance: an agent is, liable for the former, under certain circumstances, but not for the latter; he being responsible for his non-feasance only to his principal. Story on Ag. 309, 310. An agent is liable for misfeasance as to third persons, when, intentionally or ignorantly, he commits a wrong, although authorized by his principal, because no one can lawfully authorize another to commit a wrong upon the rights or property of another. 1 Wils. R. 328; 1 B. & P. 410. 3d. An agent is liable to refund money, when payment to him is void ab initio, so that, the money was never received for the use of his principal, and he is consequently not accountable to the latter for it, if he has not actually paid it over at the time he receives notice of the take. 2 Cowp. 565; 10 Mod. 233; M.& S. 344. But unless "caught with the money in his possession," the agent is not responsible. 2 Moore, 5; 8 Taunt. 136; 9 Bing. 878; 7 B.& C. 111; 1 Cowp. 69; 4 Taunt. 198. This last rule is, however, subject to this qualification, that the money shall have been lawfully received by the agent; for if, in receiving it, the agent was a wrongdoer, he will not be exempted from liability by payment to his principal. 1 Campb. 396; 8 Bing. 424; 1 T. R. 62; 2 Campb. 122; 1 Selw. N. P. 90, n.; 12 M. & W. 688; 6 A.& Ell. N. S. 280; 1 Taunt. 359; 3 Esp. 153. See Diplomatic agent.