§ 259. We now come to the rights of agents, in respect of their principals and third persons. Every agent is entitled to a compensation for all services done by him in respect to the agency, unless there be a special agreement between the parties to the contrary; or unless he be a gratuitous agent or mandatary; or unless the service be in respect to some matter which is illegal, or immoral, or in contravention of public policy. And the agent is entitled to the commission, even though the principal himself make the sale directly, provided the result were effected through the means of the agent.2 So if the principal declines to sell after the agent has procured a purchaser, and rescinds the agent's authority, the agent is entitled to a reasonable compensation for his services, and need not resort to a special action for the wrongful withdrawal of his authority.3 This compensation is called a commission, and is determined, in the absence of any express agreement,4 by the usage in the tion of damages.1 An agent is also entitled to his commission even though he exceed his powers if the principal afterwards ratify;2 and the principal cannot relieve himself by refusing to consummate the authorized bargain of his agent, or by an act of his own disabling him from performance.3
1 Macfarlane v. Giannacopulo, 3 H. & N. 860 (1858), per Watson, B.
2 Green v. Bartlett, 14 C. B. (n. s.) 681 (1863). This was a case of an auction sale; the agent being the auctioneer. See post, Auctioneers.
3 Prickett v. Badger, 1 C. B. (n. s.) 296 (1856). " I take it to be admitted that it is not competent to a principal to revoke the authority of an agent, without paying for labor and expense incurred by him in the course of the employment. The right of the agent to be reimbursed depends upon the terms of the agreement. A general employment may carry with it a power of revocation on payment only of a compensation for what may have been done under it; but there may also be a qualified employment under which no payment shall be demandable, if countermanded. In the present case, I think the evidence showed that the employment was of that qualified character." Per Jervis, C. J., in Simpson v. Lamb, 17 C. B. 603 1856).
4 See Lara v. Hill, 15 C. B. (n. s.) 45 (1863), as to the construction of particular business in respect to which the agency is exercised; or, in the absence of any usage, by the worth of the services rendered, which is a fact to be determined by a jury.1 Extraordinary commissions are sometimes allowed; as, commissions del credere, where the agent sells on credit, at his own risk, and guarantees payment.
§ 260. Before an agent can claim compensation, he must have faithfully performed all his duty;2 unless, by the usage in the particular business in respect to which the agency is created, a proportional remuneration be allowed for a partial performance of the agency. And if the agent departs from his instructions, he will not be entitled to the commission; as, where he was employed to sell to third persons, and in point of fact sold to himself.3 So, also, if the principal die before the business is completed, and the agent become his executor or administrator, his right to receive commissions as agent is determined. But if an agent, who has been employed for a determinate period, be improperly discharged before the expiration of the time, he is prima facie entitled to compensation for the whole term for which he was employed. But the defendant, upon whom the burden of proof lies, may show either that the plaintiff was actually engaged in other profitable service during the term, or that such employment was offered to him, and rejected.4 This, however, bears upon the case only in mitigathe following agreement: "No accommodation that may be afforded as to time of payment or advance to retard the payment of commission."
1 Eicke v. Meyer, 3 Camp. 412; Cohen v. Paget, 4 Camp. 96; Roberts v. Jackson, 2 Stark. 225; Chapman v. De Tastet, 2 Stark. 294; Bower v. Jones, 8 Bing. 65; Robinson v. N. Y. Ins. Co., 2 Caines, 357; Miller v. Livingston, 1 Caines, 349; Story on Agency, § 326 et seq.; Armstrong v. Toler, 11 Wheat. 261, 262; Story on Conflict of Laws, § 244-256; Wyburd v. Stanton, 4 Esp. 179; Josephs v. Pebrer, 3 B. & C. 639; Haines v. Busk, 5 Taunt. 521; Stackpole v. Earle, 2 Wils. 133; Waldo v. Martin, 4 B. & C. 319; s. c. 6 Dowl. & Ry. 364; Parsons v. Thompson, 1 H. Bl. 322.
2 Hamond v. Holiday, 1 C. & P. 384; Broad v. Thomas, 7 Bing. 99; Dalton v. Irvin, 4 C. & P. 289; Read v. Rann, 10 B. & C. 438; Vennum v. Gregory, 21 Iowa, 326 (1866); Walker v. Tirrell, 101 Mass. 257 (1869).
3 Salomons v. Pender, 3 H. & C. 639 (1865).
4 King v. Steiren, 44 Penn. St. 99 (1862); Costigan v. Mohawk & Hudson R. R. Co., 2 Denio, 609; 2 Greenleaf, Evid. § 261 a.
§ 261. All expenses and advances properly incurred, or paid by an agent, and all losses incurred by him in the course of his agency, should be reimbursed to him.4 So, also, if the agent, by the direction of his principal, innocently and unsuspiciously do a wrong, or commit a trespass, he will be entitled to compensation from his principal for the damages he sustains.5 The loss or damage for which an agent can claim compensation must, however, be the immediate result of a legal agency, and not the casual or remote result; that is, the agency must be the cause, and not the occasion of the loss or damage.6 And to enable an agent to recover damages from his principal, sustained in defending a suit on the principal's behalf, the agent must show that the loss arose from the fact of agency, and that he was acting within the scope of his authority, and without fault or laches on his part.7
§ 262. If, however, an agent be guilty of gross negligence, fraud, or misconduct, or violation of his instructions,8 he cannot recover even for the advances and disbursements made in the course of his agency,1 unless the principal ratify his acts.2 Nor can he recover for services and expenses in making a contract which is illegal and void by statute.3 So, also, he cannot recover for expenses and payments made after the revocation of his authority.4