§ 232. An agent is bound to exercise only ordinary diligence, and reasonable skill; and he is responsible only for such injuries as arise from a want thereof.2 Ordinary diligence is that diligence which persons of common prudence use in the conduct of their own affairs. Reasonable skill is the average skill possessed by persons of common capacity, employed in the same business.3 The mere fact, that an agent has sold or let property at an undervalue, will not make him responsible, if it appear that he acted in entire, good faith.4 But in a very recent case5 the court say that it is well settled that an agent employed to sell land is held to the strictest fairness and integrity, and is bound to act in the utmost good faith; so that he cannot himself become the purchaser, and so that if he is authorized to sell land at a fixed price, and sells for a greater price, he must account to his principal for the excess.6
§ 233. Every agent is bound to execute the incidental orders and instructions of his principal, whenever, for a valuable consideration, he has undertaken to perform certain offices or duties out of which they spring. Nor does it matter, whether such orders or instructions be expressly given, or arise from implication, either from the habits of the parties in their previous intercourse, or from the general usage of trade.1 Thus, an agent having the goods of his principal in his hands, is bound to insure them in three instances. First, where there is a positive order. Secondly, wherever the usage of trade, or the previous habit of dealing between the parties creates an implied obligation to insure them; although there be no special order in the particular case. Thirdly, where a merchant abroad sends bills of lading to his correspondent here, and ingrafts thereupon an order to insure, as the implied condition on which the bills of lading are to be accepted, the agent is bound to obey, if he accept them.2 In these three instances, the agent will render himself responsible for all losses and injuries, growing out of the omission to insure. But, unless something have been held out by the agent to the principal to induce the belief that he will procure insurance, he will not be compelled to insure.3 § 234. Wherever any duties grow reasonably out of the orders of the principal, so that a proper attention to the facts stated therein, or to the condition or situation of the property, would have induced persons of reasonable skill to perform such duties, the agent will be responsible for any loss arising from his neglect.4 Thus, where A., being an insurance broker, was employed by B. to insure goods for a part of a voyage from Malaga to Dublin, namely, from Gibraltar to Dublin, B. intending to take the risk of the preceding portion of the voyage on himself, and A. effected an insurance on goods, "at and from Gibraltar to Dublin, beginning the adventure from the loading thereof on board at Gibraltar," and the vessel was lost after leaving Gibraltar; it was held, that if A. had paid a proper attention to the facts, he would have known that the goods were to be laden at Malaga; and that he was therefore liable for his negligence in insuring goods to be laden at Malaga, - no goods having, in fact, been laden at the latter port.1
1 2 Kent, Comm. lect. 41, p. 618.
2 Evans v. Potter, 2 Gall. 13; Fuller v. Ellis, 39 Vt. 345 (1867).
3 Story on Bailments, § 431 to 434; Jones on Bailments, 94, 98, 99; Denew v. Daverell, 3 Camp. 451; Seare v. Prentice, 8 East, 348; Simpson v. Swan, 3 Camp. 291; Madeira v. Townsley, 12 Martin, 84; Dartnall v. Howard, 4 B. & C. 345; Story on Agency, § 183, and cases cited; Leverick v. Meigs, 1 Cow. 645. The same rule prevails in regard to diligence, in the Roman law, the Scotch law, and the French law. Hei-nec. Elem. Juris, Lib. 3, tit. 14, § 788; Id. Pand. Lib. 17, tit. 1, § 233; Pothier, CEuvres, edit. 1681, 4to, p. 455; Ersk. Inst. B. 3, tit. 1, § 21; Id. tit. 3, § 36; Bell, Comm. § 411, p. 387.
4 Dyas v. Cruise, 2 Jones & Lat.460. See Gorman v. Wheeler, 10 Gray, 362.
5 Kerfoot v. Hyman, 52 111. 512 (1869). See Grumley v. Webb, 44 Mo. 444.
6 Merryman v. David, 31 111. 404. See Leake v. Sutherland, 25 Ark. 219 (1868).
1 Story on Agency, § 189 et seq. See Williams v. Higgins, 30 Md. 404 (1868).
2 Smith v. Lascelles, 2 T. R. 189; Marsh, on Insurance, B. 1, ch. 8, p. 269, 297; 1 Liverm. on Agency, ch. 8, § 1, p. 323, 325, 326; Morris v. Summerl, 2 Wash. C. C. 203; s. c. Marsh, on Ins., by Condy, note to p. 301; Paley on Agency, by Lloyd, 18; 1 Phillips on Ins. ch. 22, p. 519 to 524; Wallace v. Tellfair, 2 T. R. 188, note; Story on Agency, and cases cited; Moore v. Mourgue, Cowp. 479; Comber v. Anderson, 1 Camp. 523.
3 Smith v. Lascelles, 2 T. R. 189. See Schaeffer v. Kirk, 49 111. 251.
4 Park v. Hammond, 6 Taunt. 495; s. c. 4 Camp. 344; Mallough v. Barber, 4 Camp. 150; Fomin v. Oswell, 3 Camp. 357; 1 Liverm. on Agency, 352. 372, 373, 374; Paley on Agency, by Lloyd, 18.
§ 235. Whenever the agent receives instructions, he must comply with them faithfully, unless they be either unlawful, or unless some sudden and unforeseen emergency arise, not contemplated in such instructions; in which case, if strict adherence to them would either operate as an injury, and frustrate the intention of the principal, or would be impossible, he will be excused therefrom.2 But in all other cases, he must obey his instructions; and although the act done in violation thereof be intended for the benefit of the principal, it will not excuse him. Every loss, growing out of a non-compliance with his orders, must be borne by him personally,3 and all the profit accruing therefrom enures to the benefit of the principal. But, if the main object of the orders be attained, without any additional expense or risk, a slight and unimportant, deviation from their literal terms will not subject the agent to liability. Thus, if an agent be limited to a certain price for the purchase of goods, and he exceed it, but make up such excess by a saving in some other part of the same business, as in the expense of shipping them, he would be excused; at least in equity.4