He is bound to obey positive instructions precisely, but not mere wishes or inclinations; (q) and will be justified in departing from precise instructions if an unforeseen emergency arises, and he acts in good faith and for the obvious and certain advantage of his principal. (r)

If a factor buys goods at a price exceeding the limit set by his principal, or otherwise in disregard of his instructions, and the principal repudiates the contract, the goods become the property of the factor, and the principal is not liable for them. (rr)

Factors or brokers must conform to the usages of the business; and they have the power such usages would give them, and can bind the principal only to a usual obligation. A factor need not advise insurance, still less make insurance; but having possession of the goods he may insure them for the owner. (s)1 A factor has discretionary power in regard to the time, mode, and circumstances of a sale; but he must exercise this discretion in good faith, and if he hastens a sale improperly, and without good reason, it is void. (t)

If he has any instructions how to dispose of the goods, and has made no advances on them, he is certainly bound by these instructions. (u)

(oo) Higgins v. Moore, 34 N. Y. 417.

(p) Warner v. Martin, 11 How. 209; Beach v. Forsyth, 14 Barb. 499; Blackmail v. Green, 24 Vt. 17; Benny v. re-gram, 18 Mo. 191. See Fahnestoek v. Bailey, 3 Met. (Ky.) 48, which is a strong case upon this point.

(q) Brown v. McGran, 14 Pet. 479; Ekins v. Marklish, Ambl. 184; Lucas v. Groning, 7 Taunt. 164.

(r) Judson v. Sturges, 5 Day, 556; Drummond v. Wood, 2 Caines, 310; Liotard v. Graves, 3 Caines, 226; Law-ler v. Keaquick, 1 Johns. Cas. 174; For-restier v. Bordman, 1 Story, 43.

(rr) The Sally Magee, 3 Wall. 451.

(s) De Forest v. The Fire Insurance Co. 1 Hall, 84.

(I) "But it seems, if the sale be hurried in order to enable the factor to realize his advances, and it is not made' in due course of business, it will be void." . . . The agents "were bound as factors to sell at reasonable and fair prices; and it would be contrary to their duty, and a fraudulent proceeding on their part, to sell the goods at a greatly reduced price, or in common parlance, to sacrifice them, in order the more hastily to realize the proceeds." Shaw, C. J., Shaw v. Stone, 1 Cush. 228, 248.

1 If a factor promises to insure, or if so ordered or if usage imposes that duty upon him he fails to do so, he is liable himself as insurer, and, in the event of a loss, is entitled to credit for premiums that he should have paid. Shoenfeld v. Fleisher, 73 Ill. 404; Area v. Milliken, 35 La. Ann. 1150. - K.

A factor for commission must account to him from whom he received the goods, until an adverse claimant establishes his right to them. (uu) *A factor is a general agent from the nature of his employment; and if he be known as a general commission merchant or factor, he binds the principal who employs him, although for the first time, by any acts fairly within the scope of his employment, even if they transcend the limits of his instructions; if the party dealing with him had no knowledge of those limits.

If he sends goods to his principal, contrary to order or to his duty, the principal may refuse to receive them, and may return them, or if the nature of the goods or other circumstances make it obviously for the interest of the factor that they should be sold, the principal may sell them as his agent. (v)

If he has no del credere commission, he may still be personally liable to his principal; as where he makes himself liable by neglect or default; or if he sells the goods of several principals to one purchaser on credit, taking a note to himself, and getting the same discounted. (w) Or if he sells on credit, and when that expires takes a note to himself. (x) But if he sell on credit and at the time takes a negotiable note which is not paid, the loss falls on the principal; and the factor is not bound to pay it, if he has no guaranty commission, although the note be made payable to the factor. (y)

A foreign factor is one who acts for a principal in another country; a domestic factor acts in the same country with his principal. A foreign factor is, as to third parties, under ordinary circumstances, a principal.1 And though his principal may sue

(u) Marfield v. Goodhue, 3 Const. 62; Brown v. McGran, 14 Pet. 479; Smart v. Sandars, 5 M. G. & S. 895; Union Hardware Co. v. Plume, 58 Conn. 219.

(uu) Bain v. Clark, 39 Mo. 352.

(v) Kemp v. Pryor, 7 Ves. Jr. 237, 240, 247; Cornwall v. Wilson, 1 Ves. Sen. 509.

(w) Jackson v. Baker, 1 Wash. C. C.

394; s. c 445; Johnson v. O'Hara, 5 Leigh, 456. But not necessarily so. Goodenow v. Tyler, 7 Mass. 36; Cor-lies v. Cumming, 6 Cowen, 181.

(x) Hosmer v. Beebe, 2 Martin (N. s.), 368.

(y) Messier v. Amery, 1 Yeates, 540; Goodenow v. Tyler, 7 Mass. 36.

1 The present state of the law of England on this point is thus expressed by Lord Blackburn in a recent case: " The great inconvenience that would result if there were privity of contract established between the foreign constituents of a commission merchant and the home suppliers of the goods has led to a course of business in consequence of which it has been long settled that a foreign constituent does not give the commission merchant any authority to pledge his credit to those from whom the commissioner buys them by his order and on his account. It is true that this was such third parties, they cannot sue his principal, for they act with the factor only, and on the factor's credit But it seems to be otherwise with the domestic factor. A third party dealing with him may have a claim on his principal, unless it can be shown that credit was given to the factor exclusively. (z) That is, in the case of a foreign factor the presumption * of law is, that credit was given to him exclusively; in the case of a domestic factor, that credit is given to his principal; but the presumption may be said to exist only in the absence of evidence; for the intention of the parties, to be drawn from the terms of the contract and from circumstances, will determine whether the party dealing with the factor dealt with him as agent or as principal. (a) It seems very nearly and perhaps quite settled, that for the purpose of this rule, our States are not foreign countries to each other, although for most purposes of the law-merchant they are so.1