his own contracts. Hence, in pleading, the only question peculiar to him, is the question, when he may himself sue or be sued in his own name; or when his principal must sue or be sued. But if the principal call on the buyer of the factor to pay the principal, he gives up his claim against the factor, for not pursuing his instructions; as by calling on the buyer he ratifies the factor's sale. Reeves' D. R. 348; Bul. N. P. 130; 7 D. & E. 359. ART. 11. Further American cases. CH. 30. Art. 11. 1. In this case the court decided, that where A sent cer- 3 Mass. R. tain lottery tickets to B, for sale, with a request to put them 211, Brown into such hands as B should think safe, this was not an autho- v. Bull. rity to sell the tickets on credit at A's risk. 2. In this case Pearce, the deft. sent his ship, Samuel 4 Mass. R. Calder master, to St. Petersburg; there, June 19, 1803, 258, Van Staphorst v. Calder, according to orders, drew bills on Pearce for 25,000 Pearce. rubles, balance of cargo received from Blandow & Co. for Pearce, payable at Amsterdam, at Messrs. Van Staphorst & Co. June 23, 1803, Blandow & Co. endorsed said bills to the plts. thus, "pay to the order of Messrs. Van Staphorst & Co. value in account. St. Petersburg, June 23, 1803, (signed) Blandow & Co." No payee was named in the bills, but they were delivered to Blandow & Co. who, as above, endorsed them to the plts., who as agents of Blandow & Co. sent them to the deft. who accepted them. The third count stated the contract as a bill drawn by Blandow & Co. on Pearce in favour of the plts., and accepted. And on this count the plts. recovered, "because every endorsement of a bill may be considered as a new bill drawn by the endorser on the acceptor in favour of the payee ;" and "upon an express promise to pay the factor of any one for the use of the principal, the factor may maintain an action in his own name." "And as the endorsement expresses value in account, if the endorsee holds it for the use of the endorser, he is his factor as to this bill." "If Pearce had after his acceptance paid the bill to the principals, [Blandow & Co.] he might be allowed to avail himself of such payment against the factor." And the creditors of Blandow & Co. could not discharge Pearce from his express promise made to the factors of their debtors. Pearce was also sued as trustee of Blandow & Co. ham v. Davenport. 3. In this case the court held, that when A, owner of a 6 Mass. R. ship abroad, directed B, his factor here, to get insurance on 258, Abraher, and he could not in his town or vicinity, nor did he obtain it in more distant places, where he limited the premium below what it could be done for, B was not liable to the owner for not having got the insurance. The defts. lived in Boston, and the distant place was New York. Сн. 30. 7 Mass. R. 36, Goodenow v. Tyler. 7 Mass. R. Munson. 13 East 432. 4. The deft. was a commission merchant in Boston, and sold as the factor to the plt. a pipe of gin to one Joseph Chapin for $81 36, and in payment took his note payable to the deft. or order in ninety days. Chapin failed before the note became payable, and never paid any dividend among his creditors. The plt. gave no particular orders as to selling on credit. It was proved to be the custom in Boston, and particularly at the deft's. store, to sell on credit by factors, and at the risk of their principals, unless an additional premium was allowed for taking the risk upon themselves. Verdict for the plt., because the deft. had received from Chapin a negotiable note; and a new trial was granted. And also held, that evidence ought to have been admitted to prove it was the usage for factors to take such notes in such cases on the account of their principals; though it was allowed that such a note taken for goods sold, is payment as much as cash, and that by it the original contract was merged and discharged. And the Chief Justice was of opinion, that the deft. was not liable, on general principles, independent of any usage in Boston. The majority of the court went on the principle, that the deft. received the note in trust for the plt., and would have become personally liable to him for the amount of the gin, if, first, he had neglected seasonably to collect the note: 2. If he had sold or disposed of it: and 3. If he had refused to assign it to the plt. on his demanding it and offering to pay the deft. his commission and charges, and allowing an endorsement that would not have made the plt. personally liable; for in either of these cases the deft., the factor, would have made the note his own. 5. Assumpsit for the proceeds of eighteen hogsheads of 319, Kelley v. molasses, the property of the plt., sent by his factor to the deft. and claimed by the factor. Notice to the deft. not to pay him. Held, first, a sale by a factor creates a contract between the owner of the property and the purchasers: 2 If on credit, the buyer may not pay the factor after notice from the owner not to pay him; except, 3. Where the factor sells in his own name and is responsible to the owner for the price, collected or not or 4. Where he sells to his own creditor, there being mutual dealings between them. Judgment for the plt. 6. It is said in some books, it is doubtful how far a factor may sell on credit. It is true there are authorities both ways; but the general principle is on the whole settled, that a factor cannot sell on credit, except there be a usage and course of trade to justify him in so doing, and where there is, principal and factor are presumed to know the usage and to understand the business will be done according to it. Reeves' D. R. 349, 7. If a factor purchase goods at a price higher than his instructions from his principal, but he receives and sells them at a less price, he must account with his factor at the price he gave; for by receiving and selling the goods he adopts the factor's purchase, and waives his right to reject them; and this, though he declares he will not allow the factor's purchase. And the principal will not be permitted to say he received and sold them as the factor's agent. 8. One as a factor receives goods to sell for another, and no special orders given to sell for cash or not on credit. Held, he may sell on credit for the period usual in that market, and selling on credit in the usual way, and using due diligence to ascertain the buyer's solvency, if he prove insolvent the factor will not be liable; but he is always liable for his due diligence or want of it. 437, Le Grun v. Gouver § 9. Wherever the factor by his own acts, by mistakes, or by breach of trust or of orders, substitutes himself in the place of the principal's debtor or the vendee of goods of the principal sold by the factor, he on the one hand is liable to all the engagements of such debtor or vendee, and on the other has every defence when sued, such vendee or debtor would have 1 Johns. Ca. if sued, either by shewing fraud or any other matter of defence. Therefore, if the factor sell his principal's goods by neur & alhis express direction to A on credit, and the factor takes his note, and refuses to deliver it to his principal when demanded, the factor by such refusal is guilty of a breach of trust and substitutes himself in A's place and becomes liable to his principal for the contents of the note of A, and whatever defence A would have if sued on it, the factor has, and he retains his right to deduct his commissions &c. as factor. 4 Johns. R. 103, 113. v. al. Moore So if the insured employ a factor or agent to settle with the 3 Johns. Ca. underwriter for a total loss on a legal abandonment, and the 36, Rundle & factor misapprehend his principal's instructions, or negligently & al. adjust the loss with the underwriter at two per cent. as an average loss and cancels the policy, the factor becomes liable to his principal for all the underwriter was liable for, that is, the total loss. 10. Wherever the factor has a lien on his principal's 4 Johns. R. goods, or ship, &c. the factor may convey or deliver them to 103. a third person for the purpose of preserving that lien, though he cannot pledge them. 11. A merchant's factor promised he would write to his 3 Cranch 503, Randolph v. principal to get insurance done. Held, this did not bind the Ware. principal to insure; 1 Wash. 23, Hooe & al. v. Oxley & al.; 1 Cain. 342, Molloy 421. 12. Where a principal gives written instructions to his 3 Cranch factor, he will be justified in departing from them by the 415, Manilla v. Barry. 2 Cain. 310, Drummond v. Wood.-4 Dall. 389, Walker v. Smith. CH. 30. 3 Cain. 226, Graves. See s. 11. orders of a general agent. But generally, the factor must pursue his orders, and will be liable for any injury or loss consequent on his departing from them; 1 Bay 169, Wilkinson v. Campbell; 1 John. Ca. 459; 3 Cain. 238. So a merchant who accepts a consignment he is not obliged to do, is liable for a loss which ensues, if he do not observe the orders given him. If the agent act with good faith his orders are liberally construed. § 13. But a factor having no particular instructions, and in whom a discretion is vested, is not responsible if he act according to the best of his judgment, and is not guilty of any fraud or gross abuse of the confidence placed in him. If a loss ensue from mistake or error of judgment, where there is no lata culpa or crassa negligentia, his principal and not he 1 Johns. Ca. must bear it. And if liable, he is excused if the principal adopt his acts, Fowle & al. v. Stevenson; 1 Cain. 539, Codwise v. Hacker; 2 Cain. Er. 36, 49, 63. 110. 2 Dall. 136.-4 Dail. 136. 3 Cranch v. Barry. § 14. Several distinct merchants residing abroad employ a factor, and empower him to remit by merchandise or good bills of exchange, as he might judge best. He remitted by a general bill payable to one of them, with separate drafts on him in favour of each of the others. Held, a good remittance; but material, notice be given of each one's proportion to the parties, nor is the factor liable if the drawer was in good credit when he drew, though he fail afterwards. 15. A factor acting according to his instructions or not. 415, Manilla Error to the Circuit Court in Maryland. The plts, Spanish merchants, Jan. 27, 1798, sent instructions by Menendy, the principal agent, to the deft. to purchase for them 20,000 quintals of tobacco, and to ship it as soon as convenient in six or more vessels, on his, the deft's., account and risk, and as his own, (intention to cover it from capture) advised to consult said Menendy; and added, "you will take care to seek captains of fidelity, American born, and that all the crews be strictly agreeable to law." The deft. purchased the tobacco at $10 50 a quintal, but could not procure American vessels for all. Shipped one cargo in a Moorish, and one in a Danish vessel. And after war was immediately expected between France and the United States, shipped one by Menendy's advice to a neutral Genoese merchant, and on his account and risk. These three cargoes were captured, and plts. sued to throw the loss on the deft. for a departure from orders. Judgment for him, as his instructions justified what he did. The main objects were to protect the property as neutral, and for the deft. to be advised by said Menendy, plts'. confidential agent. CHAPTER XXXI. Сн. 31. THE ACTION OF ASSUMPSIT FOR FEES, &c. CASES IN WHICH IT Stockhold v. § 1. It has been decided, that a quantum meruit lies for Salk. 330, fees. As for serving as a commissioner on a commission to Collington.examine witnesses when appointed on the nomination of the 2 Stra. 1262. deft. The declaration stated that the plt. at the deft's. request served him &c.; see 1 Esp. 8; Ch. 144. 2. An officer must execute a precept, and cannot previ- 1 Salk. 330, 331, 332, ously demand his fees, but may, after it is executed, though Earle v. erroneous; for the error is not the officer's fault, and when he Plummer.had done the business he is justly entitled to a reasonable 2 Stra. 1262. allowance, and is entitled on execution, though the parties compromise before the goods are sold, and after the seizure. 5 D. & E. 470; 1 Cain. 192. Ballard v. Ge rard. § 3. No court has power to settle the fees of its officers so 12 Mod. 609, as to conclude the subject. But on a suit in a quantum meruit by an officer for his fees, the judges assessing them in a reasonable manner may be good evidence, but not conclusive to the jury; but after once found reasonable by a jury, then this finding may be conclusive evidence. Burdeaux v. -4 T. R. 317. 4. There is no fee for christening or burying, unless by 1 Salk. 332, custom, and then only to him who does the duty, 12 Mod. 171. Lancaster.. 5. General principles in England seem to be, that a coun- 3 Bl. Com. sellor or physician cannot maintain an action for his fees. But Ch. Notes 3. our practice is different, as several actions for fees which have been supported will shew. This case was assumpsit for a S. J. Court, doctor's fee for delivering the deft's. wife in a very difficult 1789, Swett case, and judgment for the plt. on argument. v. Hooper. Chartey v. § 6. In this case in England it was held, that a physician 4 T. R. 318, cannot maintain an action for his fees, for that the reward is merely honorary. Likened to a barrister's case. 7. By the laws of the Union and of each State the fees of office are generally regulated and ascertained, so that it is very seldom the reward depends on a quantum meruit in regard to officer's fees; but it is otherwise as to physicians and attornies as between them and their clients &c. If a sheriff ar rest A on a ca, sa. while attending court, and he is discharged, the service to no fee. 8. Where attornies have a lien for their fees; see Lien being void, and Set-off, Ch. 168, a. 6; and debt for fees, see Debt, Ch. he is entitled 144; assumpsit lies for attorney's fees on 3 J. I. 7, s. 1, 10 Johns. R. directing bills to be given. 93. |