650. So, although the usage of trade may warrant a factor in selling on credit, and

taking a note from the purchaser pavable to himself, yet he must not deal with such

note as his own property and for his own benefit. Where, for example, the factor

In such case discounted the note for his own use, and the maker became insolvent

before its maturity, the factor was held absolutely responsible to the principal. The

factor had made the note his own, for it is evident that had the maker continued

solvent, and the factor become insolvent, the note on its maturity would have been

the property of the indorsee, and the factor a debtor to the principal for the amount.

Johnson &, Duggens v. O'Hara, 5 Leigh. 456. S. P. Myers v. Entriken, 6 "Watts &

Serg. 44. Jackson v. Baker, 1 Wash. C. C. R. 394. "A usage," said Lord Ellenbo-

rough, "authorizing an agent to make a profit by a bill on his principal, would be

a usage of fraud and plunder." Diplock v. Blackburen, 3 Camp. 43.

The agent, when the agency has closed, is bound to render an account thereof to

his principal. Viner's Abridg. Acco. c. 7, d. 16. Mathews v. Walwyn, 4 Ves. 25.

White V. Lady Lincoln, 8 Ves. 369. Bacon's Abridg. Merchant. B. Agents Account-

Ing. Wilkin V. Wilkin, 1 Salk. 9. Clark V. Moody, 17 Mass. 145. Cooley V. Belts,

24 Wend. 203. American Leading Cases, Vol. L p. 697, second edition. The rule

as to the liability of agents to be called to account, must be taken with this qualifi-

cation, that where, as in the case of clerks, shopmen, and apprentices, the agency is

but an execution from time to time of the immediate orders of the principal, the ex-

ecution of such orders, and the communication of the result to his principal, or the

entry of the same by the agent in his principal's books in pursuance of his prescribed

duty, will discharge the agent from the necessity of sending in formal accounts, or

PRINCIPAL AND AGENT. 161

Rights of Principal against Agent.

that the parties must have recourse to equity. However, it is now

clear, that if the items can be proved, indebitatus assumpsit will lie

for the balance ; {u) and according to Gibbs, C. J., the foundation

of an action of account is, that the party wants an account and is

not able to prove his items without it, in which case he may either

maintain a special action against his agent, for his breach of duty

In refusing to account, {V) or seek relief in equity, {IV) where he

may have a discovery of books and papers, and the benefit of the

defendant's oath.

As mercantile agents are generally employed in sales or pur-

chases, let us examine somewhat more particularly their duties

with reference to those contracts.

A factor is bo and to keep the goods in;rusted to him for sale

with the same care that a prudent man would keep his own ; (x) he

Is not liable in case of robbery, fire, or other accidental damage,

happening without his default, (y) unless previous to such damage

(m) Tompkins v. Wiltshire, 1 Marsh. 115 ; 5 Taunt. 431. Arnold v. Webb, 5 Taunt