(x) Co. Litt, 89 a; Chapman v. Walton, 10 Bing. 57; Lawler v. Keaquick, 1 Johns. Cas. 174; Kingston v. Kincaid,

1 Wash. C. C 454; Babcock v. Orbison, 25 Ind. 75; Pappa v. Rose, L. R. 7 C. P. 32, 525; Gheen v. Johnson, 90 Pa. 38; Matthews v. Fuller, 123 Mass. 446. - Less than ordinary diligence is required of one who acts as agent gratuitously; unless indeed he hold himself out as a person exercising one of certain privileged professions or trades, as that of an attorney. Doorman v. Jenkins, 4 Nev. & M. 170, s. c. 2 A. & E. 256; Dartnall v. Howard, 4 B. & C. 345; Hammond v. Hussey, 51 N. H. 40. See infra, n. (a).

(y) Ante, p. * 81, note (h); Wiltshire v. Sims, 1 Camp. 258. - And the usage if followed (in the case where there are no express instructions), is a defence to the charge of negligence. Russell v. Hankey, 6 T. R. 12. As to the factor's duty to insure, see Smith v. Lascelles,

2 T. R. 189; Tickel v. Short, 2 Ves. Sen. 239.

(z) Crawford v. Louisiana State Bank, 1 Mart. n. s. 214; Miranda v. City Bank of New Orleans, 6 La. 740; Smedes v. Utica Bank, 20 Johns. 372. Yet this liability may be limited by the particular understanding of the parties; as for instance, where an agent dealing with negotiable paper, has been accustomed to do business in a certain way different from that which the law would otherwise require, and the principal employing him may from the circumstances be supposed to know this; Mills v. Bank of U. S. 11 Wheat. 431; Allen v. Merchants Bank, 22 Wend. 215; East Haddam Bank v. Scovil, 12 Conn. 303. And an agent intrusted with a negotiable instrument, and failing to fulfil his duty with respect to it, is only liable like other agents to the extent of the loss he has caused, and does not have to assume the responsibilities which the law-merchant imposes upon a negligent party to the bill. Marshall, C. J., Hamilton v. Cunningham, 2 Brock. 367. And see Van Wart v. Woolley, 3 B. & C. 439, and Van Wart v. Smith, 1 Wend. 219. An agent, acting with ordinary diligence, is not liable for injuries caused by his mistake in a doubtful matter of law. Mechanics Bank v. Merchants Bank, 6 Met. 13.

(a) One who undertakes to act in a professional or other clearly defined capacity, as that of carpenter, blacksmith, or the like, is bound to exercise the skill appropriate to such trade or profession; and this, it seems, although the undertaking be gratuitous. Dartnall v. Howard, 4 B. & C. 345; Shiells v. Blackburne,

1 The agent is, however, responsible to his principal for the unauthorized sub-agent's acts, St. Louis, etc. Ry. v. Smith, 48 Ark. 317; Swett v. South worth, 125 Mass. 417; Morgan v. Tener, 83 Pa. 305. See also Sanger v. Dun, 47 Wis. 615, and Vol. II. pp. * 103, * 104. 88

The responsibility of an agent, whether for positive misconduct or for deviation from instructions, is not measured by the extent of his commission or compensation, but by the loss or * injury which he may cause to his principal.(b)1 And in general, a verdict against a principal for the act of his servant, is the measure of the damages which the Former may recover against the latter.(c) And the agent is responsible if the loss could not have happened but for his previous misconduct, although it was not immediately caused by it. (d) But the loss must be capable of being ascertained with reasonable certainty. (e)

An agent may not dispute the title of his principal. This is well established as a general rule; but it has been held that the agent may do this, if the principal has obtained the property by fraud. (ee) 2

1 H. Bl. 161; Bourne v. Diggles, 2 Chitt. 311; Tindal, C. J., Lamphier v. Phipos, 8 C. & P. 479; Denew v. Daverell, 3 Camp. 451; Leighton v. Sargent, 7 Foster (N. H.), 460. In Wilson v. Brett, 11 M. & W. 113, it was held that a person who rides a horse gratuitously at the owner's request, for the purpose of showing him for sale, is bound, in doing so, to use such skill as he actually possesses; and if proved to be a person conversant with and skilled in horses, he is equally liable with a borrower for injury done to the horse while ridden by him. Rolfe, B., said: " The distinction I intended to make was, that a gratuitous bailee is only bound to exercise such skill as he possesses, whereas a hirer or borrower may reasonably be taken to represent to the party who lets, or from whom he borrows, that he is a person of competent skill. If a person more skilled knows that to be dangerous which another, not so skilled as he, does not, surely that makes a difference in the liability. I said I could see no difference between negligence and gross negligence, - that it was the same tiling, with the addition of a vituperative epithet; and I intended to leave it to the jury to say whether the defendant, being, as appeared by the evidence, a person accustomed to the management of horses, was guilty of culpable negligence." But Parke, B., only went so far as to say that, " In the case of a gratuitous bailee, where his profession or situation is such as to imply the possession of competent skill, he is equally liable for the neglect to use it." See post, chapter on Bailments, section II.

(b) Sivewright v. Richardson, 19 Law Times, 10; Morison v. Thompson, L. R. 9 Q. B. 480; Mason v. Bauman, 62 Ill. 76; Hamilton v. Cunningham, 2 Brock. 350; Arrotty. Brown, 6 Whart. 9; Froth-ingham v. Everton, 12 N. H. 239; Allen v. Suydam, 20 Wend. 321; Sawyer v. Mayhew, 51 Me. 398. Yet the principal may maintain an action against the agent for a breach of the contract between them, and recover nominal damages, although there be no actual loss. Marzetti v. Williams, 1 B. & Ad. 415; Frothing-ham v. Everton, 12 N. H. 239.

(c) Maiuwaring v. Brandon, 8 Taunt. 202; s. c. 2 Moore, 125.

(d) Davis v. Garrett, 6 Bing. 716; Short v. Skipwith, 1 Brock. 103; Mal-lough v. Barber, 4 Camp. 150; Park v. Hamond, id. 344; s. c. 6 Taunt. 495; Smith v. Lascelles, 2 T. R. 187, Bell v. Cunningham, 3 Pet. 84, 85; De Tastett v. Crousillat, 2 Wash. C. C. 132; Morris v. Summerl, id. 203.