1 Blot v. Boiceau, 1 Sandf. Ill; 3 Comst. 78; Frothingham v. Everton, 12 N. H. 239. See Maynard v. Pease, 99 Mass. 555.
2 Brown v. M'Gran, 14 Peters, 495; Courcier v. Ritter, 4 Wash. C. C. 549; Manella v. Barry, 3 Cranch, 415.'
3 Manella v. Barry, 3 Cranch, 415; Courcier v. Bitter, 4 Wash. C. C. 549; Short v. Skipwith, 1 Brock. 103; Marfield v. Douglass, 1 Sandf. 360; Marfield v. Goodhue, 3 Comst. 70; Catlin v. Smith, 24 Vt. 85.
4 Courcier v. Bitter, 4 Wash. C. C. 549.
5 Greenleaf v. Moody, 13 Allen, 363 (1866).
§ 445. Where a general authority is given to a factor to buy and sell, he is considered as a general agent, and his acts will be binding on his principal, whether he have violated his private instructions or not.1 So, also, factors employed to do certain acts, have incidental authority to bind their principal by any acts conducing to the proper performance of their duty.2 Thus, if a factor be employed to ship goods for his principal, he is authorized to bind the latter to the payment of freight.
1 Burrill v. Phillips, 1 Gall. 360; Evans v. Potter, 2 Gall. 13; Porter v. Blood, 5 Pick. 54; Marfield v. Douglass, 1 Sandf. 360; Marfield v. Goodhue, 3 Comst. 70. 2 Ibid.
3 Brown v. Arrott, 6 Watts & Serg. 402.
4 Brown v. M'Gran, 14 Peters, 494. 5 Ibid.
6 Jolly v. Blanchard, 1 Wash. C. C. 252; Parker v. Brancker, 22 Pick. 46; Williams v. Littlefield, 12 Wend. 362, 370; Holbrook v. Wight, 24 Wend. 169; Story on Agency, § 374. See Maynard v. Pease, 99 Mass. 555.
7 Jolly v. Blanchard, 1 Wash. C. C. 252.
§ 446. A factor is also bound to give his principal the free and unbiassed use of his own discretion and judgment; to keep and render true accounts; and to keep the property of his principal unmixed with that belonging to himself or others.3
§ 447. A factor is bound to keep the goods intrusted to him with the same care as a prudent man would bestow upon them if they were his own. The measure of his diligence is ordinary diligence.4 He is not, therefore, liable for unavoidable accidents, happening without his default; such as robbery or fire; but if the loss accrue through his gross negligence, or unreasonable want of care, he will be responsible. The question has been much discussed, as to his duties and authority in regard to insuring the goods consigned to him; and it now seems to be settled, that he has authority to insure them, not only to the extent of his own interest, but also in behalf of his principal.5 Whether, if he be a mere naked consignee to take possession of the goods with no power to sell, he would have a right to insure, is more questionable, and does not seem yet to have been directly adjudicated.6 As to his duty in respect of insurance, it seems also to be settled, that he is only bound to insure in case he has either received express orders so to do, or, in case such an order is to be implied from a previous course of dealing between the parties, or from the usage of trade.1 Where such an order is either expressly or impliedly given, he will be responsible for any damage or loss which may result from his neglect to insure. And where it is his duty to insure, he is bound to give notice to his principal, in case of his inability to procure insurance.2 He may insure in his own name, or in the name of the principal; and, if he elect the former, he may, in case of loss, recover of the underwriters the whole amount of the value of the property insured; and the surplus, beyond his own interest, will be a resulting trust for the benefit of his principal.3
1 Story on Agency, § 110; 2 Kent, Comm. 619, 620.
2 Story on Agency, § 110; Paley on Agency, by Lloyd, 241; Laussatt v. Lippincott, 6 S. & R. 386; Cockran v. Irlam, 2 M. & S. 301, 303, note.
3 Clarke v. Tipping, 9 Beav. 292.
4 Evans v. Potter, 2 Gall. 13. 5 Story on Agency, § 111.
6 Story on Agency, § 111; Wolff v. Horncastle, 1 Bos. & Pul. 323; Lu-cena v. Craufurd, 3 Bos. & Pul. 98; 2 Bos. & Pul. N. R. 324; Cornwal v. Wilson, 1 Ves. 509. See, also, particularly, De Forest v. Fulton Fire Ins. Co., 1 Hall, 84, 100 to 136; 1 Bennett, Fire Ins. Cas. 223.
§ 448. In the next place, a factor cannot delegate his office to another, because it is an office of personal trust; unless with the express authority of his principal, or with his implied authority arising from some usage in the trade, or from the particular circumstances of the case.4 He cannot, therefore, send away to another person the goods consigned to him for sale at a particular place, although he is unable to sell them there.5 But wherever a right to delegate his authority is necessarily implied in his orders, he may exercise such right; as if he be ordered to recover a debt, he is authorized to employ proper legal agents.6
§ 449. It is now settled, although it was for a long time a subject of doubt, that a factor cannot pledge the goods of his principal for his own debts and liabilities, even though a bill of parcels and a receipt be given; and if he do, the principal is entitled to recover them from the person to whom they are pledged.1 So strictly is this rule applied, that it has been held, that, although there should be a request of the consignor accompanying the consignment, that his factor should make remittances in anticipation of sales, yet the factor would not be thereby authorized to pledge the goods in order to raise money to remit.2 Nor can he pledge by the indorsement and delivery of a bill of lading, any more than by the delivery of the goods themselves.3 Indeed, the rule is, that the factor cannot pledge : and the ground of it is stated to be, that if the pawnee will call for the letter of advice, or make due inquiry as to the source from which the goods came, he can discover that the possessor holds the goods as factor, and not as purchaser or owner; and he is bound to know the extent of the factor's power at his own peril.4 So, also, he cannot, unless specially authorized, barter the goods of his principal.5