Слике страница
PDF
ePub

does all acts connected with a particular business or transaction, or that relate to some particular department of business, so long as he keeps within the general scope of his authority, binds his principal or employer by all his acts, although in some special cases he has done an act which he was expressly instructed not to do.

§ 5. The justice of this rule is apparent. A large por tion of the commercial business of every community, is transacted by agents; and if a principal who holds out to the public that his agent has general authority to act for him in a certain business, or a certain department of business, could quit himself from liability for acts of his agent whose authority he had limited by secret instructions, frauds would be frequent, dealings with agents would be unsafe, and the general business of the country would be greatly embarrassed.

§ 6. An agent is bound, in ordinary cases, to observe the instructions of his principal, even though an act in violation of such instructions should be intended for the benefit of the principal. The agent must bear, personally, all losses growing out of a noncompliance with his orders; and the profit accruing therefrom goes to the benefit of the principal. An agent, however, is excused from a strict compliance with his orders, if after receiving them, some sudden and unforeseen emergency has arisen, in consequence of which such compliance would operate as an injury to the principal, and frustrate his intention.

§ 7. When an agent receives no instructions, he must conform to the usage of trade, or to the custom applicable to the particular agency; and any deviation therefrom, unless it is justified by the necessity of the case, renders him solely liable for all the loss or injury resulting from it.

§8. An agent is bound to exercise ordinary diligence. and reasonable skill; and he is responsible only for the want thereof. Ordinary diligence is that which persons of common prudence use in conducting their own affairs. Reasonable skill is the average skill possessed by persons of common capacity employed in the same business.

§ 9. If an agent exceeds the limits of his authority, he becomes perscnally responsible to the person with whom he deals, if the limitations of his authority are unknown to such person. So he is in like manner responsible, if he makes a

contract in his own name; or if he does not disclose the name of the principal, so as to enable the party with whom he deals to have recourse to the principal, in case the agent had authority to bind him. And if the agent even buys in his own name, but for the benefit of his principal, and without disclosing his name, the principal also is bound, provided the goods come to his use. Also, if the principal is under age, or a lunatic, or otherwise incompetent to contract, the agent is liable.

§ 10. A broker is an agent who is employed to negotiate sales between parties for a compensation in the form of a commission, which is commonly called brokerage. His business consists in negotiating exchanges; or in buying and selling stocks, goods, ships, or cargoes; or in procuring insurances, and settling losses: and as he confines himself Ito one or the other of these branches, he is called an exchange broker, stock broker, insurance broker, &c. A broker differs from a factor. He has not the custody of the goods of his principal. He is merely empowered to effect the contract of sale; and when he has effected such sale, his agency ends. If a broker executes his duties in such a manner that no benefit results from them; or if he is guilty of gross misconduct in selling goods, he is not entitled to a commission or compensation.

§ 11. A lien, as has been stated, is the claim of a factor or agent upon property in his possession, as security for the payment of his charges. This right of lien extends to others than factors. It is intended also for the benefit of manufacturers and mechanics, and other persons carrying on business for the accommodation of the public. A merchant has a lien upon goods sold till the price is paid, if no credit has been stipulated for; and even when he agrees to give a credit, if the purchaser practices fraud in obtaining the goods, the seller may take them. These cases differ, however, from ordinary cases of lien, as the purchaser has not, in reality, acquired any lawful right to the property; and the merchant may dispose of the property as his own, which can not be done in other cases.

12. A shoemaker receiving leather to manufacture into shoes, may retain the shoes until he is paid for the making; a tailor has a lien upon the garment made from another's cloth; a blacksmith upon the horse he shoes; an inn

keeper upon the horse or goods of his guest; and common carriers upon the goods they transport. But they can not hold the property for any other debt; nor have they a right to sell it to satisfy their claim. Whenever a person allows property to go out of his possession, he loses his lien.

CHAPTER LV.

PARTNERSHIP.

§1. A PARTNERSHIP is the association of two or more persons for the purpose of carrying on any business, agreeing to divide the profits and bear the loss, in certain proportions. Persons forming a partnership, unite their money or capital. Sometimes one furnishes money, and another performs the labor. Or, perhaps no money may be necessary, but each agrees to do his share of the labor.

§ 2. All the members of a partnership are bound by the act of any one of them, or by any contract which either of them may make. Although they agree to divide their gains and losses, either one of them is liable for all the debts of the partnership. If one of the concern buys property on his own account, for his individual use and benefit, he alone is liable; but though he thus buys it, if it is af terward applied to the use of the partnership, all become liable.

§ 3. There are cases, however, when not all who share in the profits are responsible: as when a clerk or agent agrees to receive a part of the profits as a compensation for his service or labor; or when one receives, as rent, a part of the profits of a tannery, tavern or farm. In these cases, although the parties share in the profits, there is no partnership; and the persons who buy the stock and other materials, and hire the labor necessary to carry on their respective trades, are alone responsible.

§ 4. One partner can not bring a new partner into the firm, without the consent of all the others. If, therefore, a partner should desire to sell his interest to some other wer

son who is to take his place in the partnership, he can not do so, unless all the partners consent to such sale.

§ 5. All the partners must unite in suing and being sued. Sometimes, however, there are secret or dormant partners, who conceal their names: these may not join in an action as plaintiffs, but they may be sued when discovered to be partners.

§ 6. As each partner is liable for all the debts of the concern, so each may, in the name of the firm, in ordinary cases, assign over the effects and credits to pay the debts of the firin.

§ 7. Any partner may withdraw when he pleases, and dissolve the partnership, if no definite period has been agreed on for the partnership to continue; but if, by the terms of agreement, it is to continue for a definite period, it can not be dissolved before the expiration of the term, without the mutual consent of all the partners, except by the death or some other inability of one of them, or by a decree of the court of chancery.

§ 8. When a partnership is dissolved by the withdrawal of any of the partners, notice of dissolution ought to be duly published, or a firm may be bound by a contract made by one partner in the usual course of business, and in the name of the firm, with a person who contracted on the faith of the partnership, and who had no notice of the dissolution. The same notice is necessary to protect a retiring partner from continued responsibility. And even if due notice is given, yet, if he willingly suffers his name to continue in the firm, or in the title of the firm over the door of the shop or store, he may in certain cases be still liable.

§ 9. In some of the states, a partnership may be formed by a number of persons, some of whom are to be responsible only to a limited amount; and their names are not to be used in the firm. But before a partnership of this kind can do business, a writing and certificate signed by the parties, stating the terms of partnership, and the amount for which the special partners (as they are called) are to be responsible, must be recorded. The terms of partnership must also be published in a newspaper.

§ 10. In partnerships thus formed, called limited partnerships, the special partners become liable only to the amount mentioned in the terms of partnership. The other partners,

called general partners, whose names only are used, and who transact the business, are liable for all the debts contracted, as in ordinary partnerships. If such partnership is to be dissolved by act of the parties, before the time expires for which it was formed, notice of dissolution must be filed and recorded, and published in a newspaper.

CHAPTER LVI.

BAILMENT.

§ 1. ANOTHER Class of rights and responsibilities are those which arise from delivering and receiving property in trust, to be kept or used, and redelivered, according to agreement. Such delivery and receiving includes giving and taking goods to be kept for and without reward, and in security for debt; borrowing and lending; letting for hire; carrying, &c. These are comprehended in the word bailment, which is from bail, a French word, meaning to deliver.

§ 2. If a person takes goods to keep and return without reward, he must keep them with ordinary care, or, if they receive injury, he will be liable to the bailor for damage; in other words, a bailee without reward is responsible only for gross neglect. The person with whom goods are deposited, is also called in law, depositary. A depositary may not use the goods taken into his care.

§3. A mandatary, that is, a person who agrees to carry goods from place to place, or to do some other act or work upon or about them, without recompense, must use due dili gence in performing the work; he is responsible for gross neglect, if he undertakes and does the work amiss; but it is thought that for agreeing to do, and not undertaking or doing at all, he is not liable for damage. If he has been strongly persuaded to do the act, only a fair exertion of his ability is required.

§ 4. A borrower is liable for damage in case of slight neglect. If he applies the article borrowed to the use for which he borrows it, uses it carefully, does not allow ano

« ПретходнаНастави »