liable. He may also become responsible by his failure to use apt words in the contract, and thus, while intending to bind the principal, may really bind himself, as signing a note C. D., agent of A. B., instead of A. B., by C. D., his agent. See sec. 141.

424. When the Agent has Received Money.-When money has been paid to an agent, through mistake, by a third person, and he is notified of the mistake, and afterwards turns it over to the principal, he is liable, but if he paid it before notice, he is not liable. So when an agent receives money to be paid over on the happening of a certain contingency, if he pays it over to the wrong person before the happening of the contingency, he is responsible to the rightful

owner.

425. Public Agents.-The duties of a public officer are prescribed by law, which every one is presumed to know. Consequently, a public officer does not become personally liable when he exceeds his authority. While this is the general rule, there are many cases when he will be responsible, and this depends solely on the circumstances of each case. It is said that whenever the law imposes on an officer ministerial duties, in which a private individual has a special and direct interest, the officer is liable to such individual for his failure. or neglect to perform them properly.

CHAPTER XXXV.

LIABILITIES OF PRINCIPAL TO AGENT.

426. Payment of Compensation.-One of the most important claims that the agent has upon the principal is for compensation. The amount may be expressly agreed upon, or it may be agreed that it shall be determined in a certain way, as a certain per cent of the business done. There are also cases where the promise to pay any compensation must be express, for it will not be presumed, as where the parties are near relatives, or members of the same family. No recovery can be had for services, however valuable, if they have been rendered without the express or implied request of the principal. But where a party knowingly and without objection permits another

to render service for him, the law implies a promise to pay what it is reasonably worth.

427. Amount -It is possible for the parties to agree that the full performance of the duty shall be a condition precedent to the right to recover any compensation. But if this full performance be excused or prevented by the principal, the agent will still be entitled to his commission, if he has done all that is necessary on his part. If the agency be terminated by the sickness of the agent, he is entitled to recover the reasonable value of his services up to the time of his incapacity. This is the rule, even though the contract be to perform a certain service before he is entitled to any compensation. Where the agent is employed at a fixed salary, and additional duties are imposed on him, he cannot ordinarily recover extra compensation in the absence of a promise to pay them.

428. Right of Recoupment. The principal has the right to recoup any damages he may have suffered at the agent's hands, out of his compensation. But both the claim for damages and the compensation must arise out of the same transaction. A railway company may recoup from a conductor's wages damages resulting from a collision caused by his negligence.

429. Right of Reimbursement. It is the principal's duty to reimburse the agent for all his advances and for expenses, incurred in the course of the agency, which were for the benefit of the principal. They must not however, be the result of the agent's negligence, neither will they be allowed where the agent makes a contract to perform a certain service for a gross sum.

430. Right of Indemnity.—If in the performance of a lawful act for the principal, the agent invades the rights of others, the loss should fall upon the principal, and not the agent.

An agent, by direction of his principal, cut timber upon the land of a third person, which land the agent supposed belonged to the principal. He was sued for trespass, but recovered in turn from his principal.

431. Agent's Right to Protection from Injury.-Every undertaking for the rendition of services is attended with more or less risk. Risks of this nature are as much within the knowledge, and perhaps more within the control of the agent than of the principal. It is therefore, the rule that the principal is not responsible to the agent for injuries received, which result from the natural and ordinary risk

incidental to the performance of the service. The principal is liable for an injury which is the result of his negligence. He must provide, not necessarily the latest and best machinery and tools, but such as are reasonably safe, and must keep them in a reasonable state of repair. If the agent discovers that the machinery is not in proper repair, it is his duty to report it, for in such case he cannot recover from the principal without notice, and a promise from the principal to repair, which promise was relied upon.

432. Fellow Servants.-Nothing is any better settled than that a master is not liable to a servant for an injury resulting from the negligence of a fellow servant engaged in the same business. Two brakemen are fellow servants but an engineer is not a fellow seivant to a brakeman.

LIABILITIES OF PRINCIPAL TO THIRD PERSON.

433. Undisclosed Principal.-We have learned that when the agent fails to disclose his principal, he becomes personally liable. Should the principal be afterwards disclosed, he also is liable, at the election of the third person. This election must be made, to hold the principal, before he has settled with the agent in good faith, and on the basis that the agent alone was responsible.

434. Liabilities for Agent's Acts. It is a principle of the law of agency that whatever lawful acts one does for another, and by his authority, are to be considered as the acts of that other. The acts must be lawful, for no one can authorize another to do an unlawful act. What the agent does, however, must be in pursuance of his authority, either real or apparent, and within the scope of his business. Third persons have a right to rely on an agent's apparent authority, and are not bound by secret instructions and restrictions. If such secret limitations are known to third persons when dealing with the agent, they are bound by them.

435. Liabilities for Agent's Tort.-The principal is liable for the wrongful or negligent acts of his agent, done in the transaction of the principal's business. Authority to do that particular act is not the criterion, but if the agent acted within the scope of his employment it is sufficient. If the agent goes outside of this he alone is liable.

A sent B to a saw mill to get some lumber belonging to him. At the mill B was given such ambiguous instructions that in addition to A's lumber he took C's. A was held liable.

An engineer ran his train when expressly forbidden to do so. A collision occurred and the company was held liable.

These were all acts within the scope of the agent's business. Should the agent step aside from his employment to do some act for himself, the principal is not liable. The owner of a horse is not liable to a third person for an injury caused by the negligent driving of a borrower, if it was not used at the time in the owner's business. The principal is not liable for the willful and malicious acts of the agent. This was formerly the plain rule of law, but the later cases make no distinction between a willful or malicious act and a negligent one, resting both cases on the question whether the act was done in the scope of the business of his employment.

CHAPTER XXXVI.

LIABILITIES OF THIRD PERSONS TO AGENT.

436. Liabilities on Contract.-While the agent acts in pursuance of his authority for a disclosed principal, the contract binds his principal alone. Yet we have seen that an agent may act under such circumstances as to bind himself, as when he fails to use apt words to bind his principal. In such cases the third person is bound to the agent. On a note payable to A B, agent for C D, or A B, president of C D company, the action may be brought by the agent. He is also bound where he expressly agrees to be. (See sec. 423.)

437. Liabilities in Tort.-For all injuries committed by third persons to the agent personally in the course of his employment, the agent may sue and recover in his own name. When the agent has a special interest in his principal's property in his possession, he may maintain an action against any person who wrongfully injures or converts the goods. In some cases he may even maintain an action against the owner or principal.

LIABILITIES OF THIRD PERSONS TO PRINCIPAL.

438. Liabilities on Contracts.-The principal has the undoubted right to sue upon contracts made by the agent in his name. He also has a right to an action on all contracts made by the agent in his behalf, but in the agent's name, if they are not under seal. But if the contract involved considerations personal to the agent, such as pledging his personal credit, the third person is bound to the agent alone. The principal may recover money paid out by the agent through mistake, coercion or without consideration.

A bookkeeper embezzled the funds of his principal, and with the money bought real estate, which he took in the name of his wife, who knew the source from which the money had been obtained. It was held in equity that the principal was entitled to recover the property.

439. Liabilities for Torts.-For wrongs done or injuries committed by third persons to his property while in possession of the agent, the principal may recover in the same manner as though no agency had existed. A third person is liable to a principal for wrongfully inducing an agent to abandon his undertaking. If one contracts for a consideration to render personal services for another, any third person who maliciously induces the party who contracted to render the service, to refuse to do so, is liable to the injured party for damages. For the same reason the principal may recover against one who wrongfully prevents the agent from performing his duties, whereby the principal is injured.

DISSOLUTION.

440. Manner of Dissolution.—An agency may be dissolved or terminated in any of the following ways:

I. By Original Agreement.

II. By Act of the Parties.

III. By Operation of Law.

1. By Lapse of Time.

2. By Accomplishment of Object.

1. By Principal. 12. By Agent.

1. Death.

2. Insanity.
3. Bankruptcy
4. Marriage.

441. Original Agreement.-When the agency was originally created, to endure for a given period, or until the happening of a certain event, the expiration of that time or the happening of that