factors and purchasing agents; (1) but not in favor of ollecting agent, such as a bank collecting a note, which [*731 a lien for the general balance of account;(2) nor in favor of a servant or clerk who transacts the business of his principal excluvely.(3) It extends to goods and the proceeds of them, and securities and debts, belonging and due to the principal, and is for advances, commissions and responsibilities incurred when there is a reasonable apprehension of danger; (4) and it is general, embracing those goods which have been paid for, as well as those which have not been.(5) But to give this lien, there must be a debt to the factor, or a present liability on his part; for if, by agreement, express or implied, goods ordered through a purchasing agent, are purchased on an extended credit, and to be delivered at once, the retention of the goods till payment, would be in violation of the agreement of the parties.(6) "In order to constitute a lien, there must be some possession, custody, control, or disposing power, in the person claiming the lien, or his agent, in and over the subject matter in which such lien is claimed:-the factor, indeed, sells the goods and thereby parts with the lien on the goods; but at the same moment he takes the proceeds, whether the money, or security, which he may take in his own name, and thus as between him and his principal, the lien is immediately transferred to the proceeds;(7) the possession of the factor's carrier or agent, however, is the factor's possession; (8) and, as a general principle, constructive possession is equivalent to actual, for the purposes of this lien.(9) If the factor make an unconditional delivery of possession his lien is gone; but if he deliver to one as his agent with notice of his lien and with orders to hold for him, the lien will be preserved;(10) and though, when possession has been voluntarily given up, the factor cannot retake the goods, yet if they come again lawfully into his possession his lien will revive.(11) The lien of a factor, as given (1) Stevens v. Robins, 12 Massachusetts, 180; Brooks v. Bryce, 21 Wendell, 14, 16, 17. (2) Lawrence v. Stonington Bank, 6 Connecticut, 521, 527. (3) Gray v. Wilson, 9 Watts, 512. (4) Bradford v. Kimberly; Hodgson v. Paxson & Lorman, 3 Harris & Johnson, 339; Matthews & Hopkins v. Menedger, 2 McLean, 145, 153; Murray v. Toland, 3 Johnson's Chancery, 569, 573; Toland v. Murray, 18 Johnson, 24; Bard & Co. v. Stewart, 3 Monroe, 72; Jordan et al. v. James, 5 Hammond, S8, 99; Newhall v. Dunlap, 14 Maine, 180, 183; Stevens v. Robins, 12 Massachusetts, 180; see Le Guen v. Gouverneur & Kemble, 1 Johnson's Cases, 436, 459, 462. (5) Stevens v. Robins; Brooks v. Bryce; see Le Guen v. Gouverneur & Kemble, cited supra. (6) Williams v. Littlefield, 12 Wendell, 362, 370; Brooks v. Bryce, supra. (7) Hall v. Jackson and Tr., 20 Pickering, 195, 197. (8) Holbrook v. Wight, 24 Wendell, 169, 175. (9) Kollock and others v. Jackson, 5 Georgia, 153, 155. (10) Matthews & Hopkins v. Men edger, 2 McLean, 145, 153; Urquhart v. McIver, 4 Johnson, 103, 116; Hall v. Jackson and Tr. ; see McFarland v. Wheeler, 26 Wendell, 467; Bigelow v. Heaton, 6 Hill, 43. (11) Moody v. Webster, 3 Pickering, 424, 426. impending ruin, and the owners of goods are personally liable for the amount of contribution, on the ground, that the act was done, by the general agent, for the safety of the property. In this case, it will be observed, the action against the agent, though in tort, had been unsuccessful; but the right of indemnity is the same where damages have been recovered against the agent in an action of tort for something done by direction of the principal, if the act of the agent was required by his duty, and was without knowledge or intention of wrong: and on this ground rests the implied obligation of a party to a suit to indemnify an officer acting by his directions, for damages recovered against him in trespass.(1) The case of Greene and others v. Goddard, 9 Metcalf, 212, illustrates the principle of indemnity arising out of the relation of agent and principal, in a very interesting manner; and this decision, reported with faultless and elegant distinctness, from the ability with which the most delicate principles of mercantile law are dealt with and applied, in a case of some intricacy, is eminently creditable to the commercial jurisprudence of this country. In this case, Messrs. W. & Co., of London, having given the defendant a letter of credit, authorizing the plaintiffs to draw at Canton on them, for account of the defendant, who engaged to remit funds to London, in time to provide for the bills, the defendant sent the letter to the plaintiffs' house at Canton, and the plaintiffs, as agents of the defendant, drew accordingly in their own names, and disposed of the bills, and invested the proceeds for the benefit of the defendant. W. & Co. accepted the bills, but, before their maturity, had stopped payment. *B. & Co., of London, then took up the bills, *729] supra protest, for the honor of the plaintiffs as drawers, under an arrangement with the plaintiffs' house at Boston, by which certain credits of the plaintiff's with B. & Co., against which the plaintiff's might have drawn, were appropriated to the purpose, covering the liability in part, and to cover the residue, funds, purchased at a high premium of exchange, were remitted by the plaintiffs, from Boston. Afterwards, W. & Co., with funds remitted by the defendants, paid B. & Co. the amount of the bills with interest, notarial expenses, and banker's commissions, and took them up, and thus all liability on the bills was discharged; but the plaintiff's brought this suit, upon the relation of principal and agent, for indemnity for damage occasioned by the failure of the defendant to provide funds for the bills at maturity, according to his engagement; which damage was alleged to consist in, 1. The high premium of exchange paid by them in sending funds to London to take up the bills supra protest, and 2, the loss of the profits of exchange which they might have made in drawing on their credits with B. & Co. As to the latter, it was decided to be speculative damage, which the plaintiffs were not entitled to recover for; but they were decided to be entitled to recover for the (1) Gower v. Emery, 18 Maine, 79, 83. former, because, as drawers, they had a right to make provision for taking up the bills, after dishonor, to sustain their commercial credit, and prevent the heavy damage consequent on a return of the bills, which would have exceeded the premium of exchange now demanded; and therefore, that the relation of the parties was that of an agent seeking to recover an indemnity from his principal, for a loss sustained by him in the faithful discharge of his agency. The court observed, that the expense in question, incurred by the plaintiffs, arose from drawing the bills in their own names, which they were obliged to do in executing, as agents of the defendant, the authority given by W. & Co.; and that, "Where an agent, in pursuing the instructions of his principal, and acting within the scope of his authority, becomes personally liable for the performance of the contract he makes for his principal, and without which personal liability the orders of the principal cannot be executed at all, or not so well executed, and this is known by the principal at the time of giving his instructions and creating the agency, if a loss occur to the agent, it is most clear that he can look to the principal for indemnity for the damage sustained by him. And this," it was added, "rests upon those sound principles of common sense and mutual justice in the transaction of business, upon which the law merchant, in its various branches, is founded; and which law, as it regulates and prescribes the rights and duties of principal and agent, alike furnishes protection to the agent, when he suffers loss through fidelity to his employer, and gives redress to the principal who sustains an injury from the breach of orders or neglect of duty by the agent." [However, though a factor is undoubtedly entitled to indemnity, he cannot indemnify himself out of his principal's property by selling it in unusual and irregular ways: and hence even if by so doing he would reimburse his own charges and advances, he cannot sell his principal's goods in payment of an antecedent debt of his own.(1)] II. Compensation. Every agent, employed by another, is ordinarily entitled to a reasonable compensation for his services; (2) but negligence or breach of orders will abate or bar the claim.(3) The compen[*730 sation of a factor or other commercial agent, consists by the usage of trade in commissions, which are defined to mean 66 an allowance or compensation made upon the sale or purchase of goods;"(4) and they accrue immediately upon effecting the sale ;(5) these are due to such (1) Benny v. Rhodes, 18 Missouri, 151; Same v. Pegram, Id. 191. (2) See Bradford v. Kimberly; Walker et al. v. Robert Smith, 1 Washington, C. C. 152, 154; Gregory v. Mack, 3 Hill's N. Y. 380, 384; Tevebaugh v. Reed, 5 Monroe, 179; Welsh v. Dusar, 3 Binney, 329. (3) Dodge v. Tileston, 12 Pickering, 328; White v. Chapman, 1 Starkie, 91. (4) Miller v. Livingston, 1 Caines, 349, 357; see Stevenson v. Maxwell, 2 Sandford's Chancery, 274, 284. (5) Solly v. Weiss, 8 Taunton, 371. commercial agents by the usage of trade;(1) and the right to them is chiefly regulated by usage ;(2) but usage cannot entitle a factor to commissions on the payment of his own debt.(3) III. For the security of his claims as agent upon the principal, a factor has a general lien on the principal's goods which are in his possession as factor. There are three kinds of lien mentioned in the books. 1. A lien at common law, which is a right to retain a specific article, until its price, or a charge respecting it, is paid, and the true character of this lien at common law, as stated by Serjt. Manning, in a note to Barnett v. Brandao, 6 Manning & Granger, 658, is, that as the title of one party to demand possession and of the other party to demand payment, are contemporaneous, the owner has no right to possession until he has tendered payment.(4) 2. A lien by special contract, express or implied. 3. The commercial lien of factors, bankers, and insurance brokers, which is a general lien, and which, though originally established by custom and usage of merchants, is now settled as a part of the law merchant, and the general law of the land.(5) Such a lien exists also, in favor of wharfingers, but not of warehousemen :(6) an attorney or solicitor, it has been held in Mississippi, has a particular lien on the fund recovered, and a general lien on papers in his hands.(7) But it is only the factor's lien which it is proposed to consider at present. This general lien is defined to be "a right of the factor to hold all the goods of his principal which come into and remain in his hands as such factor, until the general balance, that is to say, all debts which his principal owes him, and which have arisen and become payable in the course of his business as factor, have been paid;""whereas a particular lien is confined to the debt due for the specific article ;" per Cowen, J.;(8) but it does not apply to debts incurred on other than the agency account.(9) This lien exists by law (1) Poag, Ex'r, v. Poag, 1 Hill's Chancery, 285, 287; Lever v. Lever, 2 Id. 158, 166. (2) Clark v. Moody et al., 17 Massachusetts, 145. (3) Pavret et al. v. Perot et al., 2 Yeates, 185. (4) See Brooks v. Bryce, 21 Wendell, 14, 17; and Steinman v. Wilkins, 7 Watts & Sergeant, 466. (5) Fee Barnett v. Brandao, 6 Manning & Granger, 630, 665; Moody v. Webster, 3 Pickering, 424, 426; Neponset Bank v. Leland, 5 Metcalf, 259; McKenzie ». Nevius, 22 Maine, 138; Bank of the Metropolis v. New England Bank, 1 Howard's Supreme Court, 234; Kollock and others v. Jackson, 5 Georgia, 153, 159; Russell v. Hadduck, 3 Gilman, 233, 238. (6) See Brooks v. Bryce, 21 Wendell, 14, 17; and Steinman v. Wilkins, 7 Watts & Sergeant, 466. (7) Pope v. Armstrong, 3 Smedes & Marshall, 214; Cage v. Wilkinson and Miles, Id. 223. (8) Brooks v. Bryce, 21 Wendell, 14, 16, 17. (9) McKenzie v. Nevius, 22 Maine, 138, 150. [*731 in favor of factors and purchasing agents;(1) but not in favor of a mere collecting agent, such as a bank collecting a note, which has not a lien for the general balance of account ;(2) nor in favor of a mere servant or clerk who transacts the business of his principal exclusively.(3) It extends to goods and the proceeds of them, and securities and debts, belonging and due to the principal, and is for advances, commissions and responsibilities incurred when there is a reasonable apprehension of danger;(4) and it is general, embracing those goods which have been paid for, as well as those which have not been.(5) But to give this lien, there must be a debt to the factor, or a present liability on his part; for if, by agreement, express or implied, goods ordered through a purchasing agent, are purchased on an extended credit, and to be delivered at once, the retention of the goods till payment, would be in violation of the agreement of the parties.(6) "In order to constitute a lien, there must be some possession, custody, control, or disposing power, in the person claiming the lien, or his agent, in and over the subject matter in which such lien is claimed:-the factor, indeed, sells the goods and thereby parts with the lien on the goods; but at the same moment he takes the proceeds, whether the money, or security, which he may take in his own name, and thus as between him and his principal, the lien is immediately transferred to the proceeds;(7) the possession of the factor's carrier or agent, however, is the factor's possession;(8) and, as a general principle, constructive possession is equivalent to actual, for the purposes of this lien.(9) If the factor make an unconditional delivery of possession his lien is gone; but if he deliver to one as his agent with notice of his lien and with orders to hold for him, the lien will be preserved;(10) and though, when possession has been voluntarily given up, the factor cannot retake the goods, yet if they come again lawfully into his possession his lien will revive.(11) The lien of a factor, as given (1) Stevens v. Robins, 12 Massachusetts, 180; Brooks v. Bryce, 21 Wendell, 14, 16, 17. (2) Lawrence v. Stonington Bank, 6 Connecticut, 521, 527. (3) Gray v. Wilson, 9 Watts, 512. (4) Bradford v. Kimberly; Hodgson v. Paxson & Lorman, 3 Harris & Johnson, 339; Matthews & Hopkins v. Menedger, 2 McLean, 145, 153; Murray v. Toland, 3 Johnson's Chancery, 569, 573; Toland v. Murray, 18 Johnson, 24; Bard & Co. v. Stewart, 3 Monroe, 72; Jordan et al. v. James, 5 Hammond, 88, 99; Newhall v. Dunlap, 14 Maine, 180, 183; Stevens v. Robins, 12 Massachusetts, 180; see Le Guen v. Gouverneur & Kemble, 1 Johnson's Cases, 436, 459, 462. (5) Stevens v. Robins; Brooks v. Bryce; see Le Guen v. Gouverneur & Kemble, cited supra. (6) Williams v. Littlefield, 12 Wendell, 362, 370; Brooks v. Bryce, supra. (7) Hall v. Jackson and Tr., 20 Pickering, 195, 197. (8) Holbrook v. Wight, 24 Wendell, 169, 175. (9) Kollock and others v. Jackson, 5 Georgia, 153, 155. (10) Matthews & Hopkins v. Menedger, 2 McLean, 145, 153; Urquhart v. McIver, 4 Johnson, 103, 116; Hall v. Jackson and Tr. ; see McFarland v. Wheeler, 26 Wendell, 467; Bigelow v. Heaton, 6 Hill, 43. (11) Moody v. Webster, 3 Pickering, 424, 426. |