* This power, which is in the nature of a general lien, is not given by the corresponding article of the French Code de Commerce (No. 93), or by any of the excellent dispositions of the Spanish code with respect to the rights and liabilities of factors.
§ '441. But where goods have been consigned to a factor for sale, the transaction would seem to import an obligation on the part of the consignee to give a reasonable credit, so far as concerns a sale of the goods, for all advances made thereon by him, even although the consignment were made without stipulations as to price, time, or mode of sale.1 If, therefore, he should proceed to sell the goods at once, so as to sacrifice the interests of the consignor, without previous demand of payment for his advances, he would expose himself to a claim for damages.2 But he is only bound to wait a reasonable time, and he may then proceed to sell, in the exercise of a sound discretion and in good faith, without demanding repayment of his advances by the principal, or notifying to him an intention to sell.3 Yet the consignee is not bound to wait until the sale of the goods, or to depend thereon solely for his advances, but may immediately maintain an action therefor, unless there be an an agreement to the contrary.4
§ 442. When the factor is expressly ordered not to sell at all, and he violates his instructions, the damages would be the difference between the actual price received and the highest price the article bore in the market between the reception of the instructions and the commencement of the suit; provided the suit be commenced within a reasonable period after the transaction.6 But where he is ordered to sell at a fixed price, and he violates his instructions, the - measure of damages suivant le cours de la bourse ou du marche; et cela soit en totalite, soit en telle partie que le juge ordonnera, selon le montant de la dette." *
1 Upham v. Lefavour, 11 Met. 183; Frothingham v. Everton, 12 N. H. 239. 2 Ibid.
3 Marfield v. Douglass, 1 Sandf. 360; Marfield v. Goodhue, 3 Comst. 70. This doctrine does not, however, obtain in England. See Smart v. Sandars, 5 C. B. 894.
4 Beckwith v. Sibley, 11 Pick. 482; Whitwell v. Brigham, 19 Pick. 117.
5 Marfield v. Douglass, 1 Sandf. 360; Marfield v. Goodhue, 3 Comst. 70.
* No such power is given by the French code; and the Spanish code (art. 127) says, absolutely and without exception, " El comisionista debe sujetarse en el desempeno de su encargo, cualquiera que sea la naturaleza de dste, a las instrucciones que haya recibido de su comitente." And the language of art. 129 is still stronger: " Pero en caso alguno podra obrar el comisionista contra la disposicion espresa del comitente." would be the difference between the price obtained on the sale and the minimum price limited by his instructions.1
§ 443. If, however, no advances have been made, and no liabilities incurred by the factor, he is bound to obey the exact orders of the consignor, and the consignor has a right to control the sale according to his pleasure from time to time.2
§ 444. A factor is bound, unless in the excepted case before mentioned, where advances have been made, to obey the orders of his consignor exactly, if they be imperative and not discretionary; and he is liable for any injury resulting from a breach of orders, however proper his motives may have been.3 Thus, where a merchant in Philadelphia sent to his correspondent at Bordeaux a cargo of coffee, with orders to " make sale of the coffee immediately on arrival, and forward the returns in the articles mentioned below, in the same vessel," it was held, that the agent was bound to sell immediately on the arrival of the cargo, and that he had no right to exercise any discretion in respect to whether the sale was advisable or not.4 But, in unforeseen circumstances of necessity or great urgency, it has been said a factor may act for his principal irrespective of his instructions, or the ordinary usages of trade, in disposing of property at less than he would do under ordinary circumstances; and if he act in good faith and with a sound discretion under the apparent circumstances, he would not be liable to his principal for the loss on the sale.5 Where, however, the agent acts only under general instructions, and has discretionary power, he is bound to exercise reasonable care and prudence to do what is for the interest of his principal. And if injury result from his want of ordinary diligence, he will be responsible, although he may have neither been guilty of fraud, nor of such gross negligence as to carry with it the insignia of fraud.1 The general measure of diligence, required of a factor as to his consignments, is ordinary diligence, and he is bound to exercise as much care and attention in relation thereto as to his own private property.2 If, therefore, loss arise from his neglect to keep his principal informed of facts material to his interests, he renders himself liable.3 It is not necessary, in all cases, that the consignor should give an order in the form of a command, in order to make it the duty of the factor to obey it; for, in the case of a simple consignment of goods, without any interest therein on the part of the consignee, or any advance or liability incurred thereon, the expression of a wish by the consignor may fairly be presumed to be an order;4 and any answer by the factor to the effect that he had noted the wish, would be construed to be an assent thereto.5 But where advances have been made, and liabilities incurred, in respect of any consignment, the factor has a lien thereupon, and may, therefore, refuse to obey subsequent orders, which would destroy his lien, unless the consignor give him other security, or be willing to pay him therefor. But if he have received the goods subject to certain orders, he is bound to observe those orders, unless, after reasonable notice, the consignor refuses or neglects to indemnify him for his advances.6 He cannot, however, retain more than sufficient to indemnify him; and if he retain the whole, contrary to orders, because of a lien for a small amount, he will be responsible.7