No. IV. * An Agreement by a Merchant or Manufacturer with an Agent, Factor, or Broker (1) to take and dispose of goods abroad. ARTICLES of agreement indented, made, and entered into this AGREEMENTS Agent. (1) A factor is a person to whom goods are consigned for the purpose of Factor, what. being sold ostensibly as for himself, but in fact as agent to the owner of them, and generally at a usual fixed commission of so much per cent.; in which case the principal relies solely on the discretion of the factor in selling to a responsible purchaser, to whom, and not to the factor, he looks for payment; but sometimes the factor sells under what, in the language of merchants, is termed a commission del credere, i. e. of giving credit at his own risk, when, in consideration of a per centage beyond the usual commission, he consents to make himself personally responsible for the payment of the goods sold; see 1 Durnf. & East. 112. Baring v. Cowie, 2 Barn. & Ald. 137. A broker is an agent of a more general and indefinite kind than a Broker, what. factor, in as much as a broker is employed for the purpose of buying as well as selling goods for his employer, and the goods he is to make sale of are not consigned to him as they are to a factor, but are sold by sample or specification, as agent, and in the name of his principal. This distinction gives rise to a difference in practice, for as a factor is in Cautions. possession of the goods to be sold, the purchaser has a right to consider him as owner of them; whence it follows, that any misconduct of the factor towards the purchaser will fall upon the principal, for whom he acts as confidential trustee, and who must look to his factor for indemnity; and therefore in appointing a factor, not only care should be taken (as in other cases of a generally authorized agent) to employ a person of tried integrity and judgment, but the instrument of his appointment must guard against the consequences of his exceeding or misusing the trust reposed in him; see ante, p. 17. in notes,-see also, 6 Geo. 4. c. 94. post, p.47. But in the case of the appointment of a broker, this will not be so necessary, for a broker not being in the possession of the goods he contracts to sell, cannot be considered by the purchaser in any other light than as an agent acting for his principal, and should therefore require the production of his authority, and if he do not, must abide by the consequences of the agent's exceeding his powers; when, however, such agent purchases goods for his principal, there is nothing to apprize the seller that he is not purchasing AGREEMENTS and the (agent or factor) now at, &c., but about to proceed to beyond the seas, of the other part. Agent. WITNESS that agent will take &e. and account for produce. Whereas the said (principal) has shipped with the said (agent) sterling, and merchandizes, to the amount and value of £ or thereabouts, and hath intrusted the same to the care of the said (agent) as his agent or factor, to sell and dispose of the same at aforesaid, upon the terms and conditions hereafter mentioned. Now THESE PRESENTS WITNESS that the said (agent) hath charge and sell, agreed, and hereby [for himself, his executors, and administrators,] doth covenant, promise, and agree, with and to the said (principal), [his executors, administrators, and assigns] as follows, that is to say, that he the said (agent) will take the said goods, wares, and merchandizes with him to aforesaid, and there sell and dispose of or use his best means and endeavours to sell and dispose of the same to the best advantage and for the most money that can be obtained for the same: AND from time to time will remit home to him the said (principal), [his executors, administrators, or assigns,] in good bills of exchange, or otherwise, all sums of money which shall arise from such sale and disposition, with a true and faithful account of the sales and prices of each and every of the same (1). AND the said (principal) doth hereby covenant, promise, and agree with and to the said (agent), that he the said (principal) will from time to time during the term of years, to be computed from the day of the date hereof, (if they the said principal and agent shall both so long live) but determinable nevertheless as hereinafter mentioned, on receiving from the said (agent) the remittances or produce arising from the sale of the said goods, wares, and merchandizes, ship and consign to him the said (agen:) such further or other goods, wares, and merchandizes, as will keep up a stock in the hands and custody of the said (agent) of or to the amount or value of Principal will make future consignments. Accounting. on his own account; hence, with reference to his buying, the appointment should contain an express agreement that he will in every such purchase produce his authority to the seller; in which case, should he not do so, he will be personally answerable; see Roe v. Davis, 7 East, 364. Baring v. Corrie, 2 Barn. & Ald. 137. 1 Moore, 157. 2 Stark. 443. But the most certain way for the principal to protect himself against the misconduct of his factor or agent, is (if he has notice of the contract before it is completed) to give express notice to the party of the agency; which, therefore, it behoves the solicitor for the principal to advise his client to do in every case where it is practicable; see 1 Peake's Rep. 177., also post, p. 32. n.*.*, and p. 47. (1) See ante, p. 24. n. (13). £ Agent. sterling. AND the said (agent) doth hereby in like man- AGREEMENTS ner as aforesaid, covenant, promise, and agree with and to the said (principal), his executors, administrators, and assigns, that he the said (agent), his executors or administrators, shall and will from Agent will sell such goods, &c. time to time during the said term of years, determinable nevertheless as hereinafter mentioned, sell and dispose of the said goods, wares, and merchandizes, so to be hereafter shipped and consigned to him from time to time, to the best advantage and for the most money that can be procured for the same: AND shall and will immediately thereupon remit home to the said (principal), [his executors, And remit the administrators, or assigns,] in the manner aforesaid, all such sums of produce. money as shall or may arise from the sale or disposition thereof, with a true and particular account of the sales and prices of the same respectively. AND also that he the said (agent) shall not nor will during the said term of years, purchase or receive for sale any Agent will not act for any other goods, wares, or merchandizes whatsoever, in his own name, or on his own account, or in the name or on account of any other person or persons than of him the said (principal) (1). AND it is hereby agreed Agent to have and declared by and between the parties hereto, that the said (agent) shall be entitled to and shall have and retain the sum of £ for every £100 (2), (and so in proportion for any less sum) which shall arise or be made by or from the sale or disposition of the commission for goods, wares, and merchandizes so now or hereafter to be intrusted to the care of or shipped and consigned to him the said (agent), and also all necessary, customary, and reasonable expenses attending the same. AND the said (agent) doth hereby further, in the man commission; trouble. ner aforesaid, covenant, promise, and agree, that he the said (agen), Agent will keep [his executors, administrators, or assigns,] shall and will from time accounts. to time, and at all times during the said term of years, keep or cause to be kept all usual and proper books of account of and concerning all goods, wares, and merchandizes which he the said (agent), [his executors, administrators, or assigns,] shall from time to time receive from the said (principal), [his executors, administrators, or assigns,] and of all sums of money, bills of exchange, or other securities which he or they shall receive for or on account of the said goods, wares, and merchandizes. AND it is hereby further agreed and declared by and between the said parties hereto, that he Principal or his the said (principal), [his executors, administrators, or assigns, or appointee may inspect books. his or their lawful attorney or attorneys, or appointee or appointees, (1) See ante, p. 19. n. (6). Remittances. (2) See ante, p. 20. n. (11). and 21. n. (9). Commission. AGREEMENTS lawfully authorized in that behalf,] shall or lawfully may from time to time and at all times during the said term of Agent. years, have at all seasonable times full and free liberty to inspect, view, and examine the books of accounts so to be kept by him the said (agent), [his executors or administrators] as aforesaid, and to take or cause to be taken any extracts from or copies of the same or any part thereof; and that he the said (agent), [his executors or administrators,] shall and will from time to time produce the said books of accounts unto the said (principal), [his executors, administrators, or assigns, and his or their lawful attorney or attorneys, or appointee or appointees,] for that purpose. IN WITNESS, &c. 6 G. 4. 94. ***Since the preceding note, (ante, p. 29, n. (1),) went to press and was composed, the act of 6 Geo. 4. c. 94. was passed, which declares that factors and agents having goods in their possession, shall, to a certain extent, be deemed the real owners. An abstract of this act will be found post, p. 47. No V. * An Agreement between a Tradesman retiring from active business, and a confidential Agent for the management of it for his benefit, the Agent receiving a salary and also a part of the proceeds (1). Variations when there are sureties on the part of the Agent. AGREEMENTS Agent. ARTICLES of agreement entered into and concluded upon this in the of our Lord 18 year day of Between (the principal) of, &c., of the one part, and (the agent) of, &c., of the other part (2). Whereas the said (principal) being desirous of retiring from the Recitals. active management of the said trade or business of has agreed with the said (agent) to conduct and manage the same for the term of. years, upon and for the terms and conditions hereinafter mentioned. Now THESE PRESENTS WITNESS that for and in consideration of the covenants and agreements hereinafter con- WITNESS agent tained on the part of the said (agent) to be performed, the tradewith the said (principal) for himself, [his executors and administrators,] present stock. doth covenant, promise, and agree with and to the said (agent), [his executors and administrators,] that he the said (agent) to manage and (1) Although, generally speaking, the perception of any part of the pro- Salary part of fits or net proceeds of the business will constitute a co-partnership between profits. the participating parties as to third persons, see Exp. Langdale, 18 Ves. 301. Cheap v. Cramond, 1 Barn. & Åld. 663, yet where the receipts of a portion of the profits is for the time and attention of the party devoted to the business, it has been held not to effect a co-partnership; nor will the receipt of an annuity or annual sum out of the business; see Exp. Stamper, 17 Ves. 404, 19 ib. 461; but as the distinctions upon this head are very nice, great care is requisite in preparing an agreement of this kind upon any plan of reciprocity of profit out of the trade. (2) If the agent procure a surety for his fidelity, make the principal Surety. of the first part, the agent of the second part, and the surety of the third part. |