§ 274. A factor has a lien on goods consigned to him, for his general advances and his commissions; this lien attaches immediately upon the property coming into his possession.1 The lien is not alone for the special advances made upon the identical shipment, but extends also to and protects the general balance remaining in his favor.2 He is, for all practical purposes, to all the world except his principal, to be regarded as the owner of the property; he may insure it, both for the protection of his lien for advances and charges, to the extent of his interest and for his principal. He may sue in his own name for the price of goods sold by him for his principal, and of

with his principal. By the usages of trade, or intendment of law, when domestic factors are employed in the ordinary business of buying and selling goods, it is presumed that a reciprocal credit between the principal and the agent, and third persons, has been given. When a purchase has been made by such a factor, he, as well as his principal, is deemed liable for the debt; and in case of a sale, the buyer is responsible both to the factor and principal for the purchase-money, but this presumption may be rebutted by proof of exclusive credit." (Story Ag. 267, 291, 293; Paley on Agency, 243, 371; 9 Barn. & C. 78; 15 East, 62.)

"A foreign factor is one who resides in a different country from his principal. Foreign factors are held personally liable upon all contracts made by them for their employers, whether they describe themselves in the contract as agents or not. In such cases, the presumption is that the credit is given exclusively to the factor. But this presumption may be rebutted by the proof of a contrary agreement." (Story Ag. Sec. 268; Paley on Ag. 245, 373; Buller, Nisi P. 130.)

1 "The question as to the precise time when the property may be said to vest in a factor who is consignee under liabilities in advance, properly falls under the law of shipping, and especially under the right of stoppage in transitu." (Story on Agency, Sec. 111, Note 3; Abbott on Shipp. p. 3, Chap. 9, Secs. 4-25; Holbrook v. Wright, 24 Wend. 169; Hall v. Smith, 1 Bos. & Pull. 563.)

Bailey v. R. R. R. Co. 49 N. Y. 70; Byers v. Danley, 27 Ark. 77. A mere consignment gives the factor no lien for advances on previous consignments, until such goods actually arrive and come into the factor's possession, and does not prevent the consignor from transferring the goods, while on the way, to a third person. (Bank of Rochester v. Jones, 4 N. Y. 497; Winter v. Coit, 7 N. Y. · 288.)

2 Knapp v. Alvord, 10 Paige, 105; Grieff v. Cowquill, 2 Cincinnati (Sup. Ct.) 58; 2 Disney, Ohio, 54. "The factor has his lien, not merely for a particular advance, but also for his general balance. He never loses his lien but by his own consent, or his neglect to enforce it, if it has been once legally vested." (Howe v. Whited, 21 La. An. 495.)

The lien of a factor for advances made prior to the levy of an attachment on the property, is superior to that of the attaching creditor. (Maxen v. Lamarum, 21 La. An. 366.)

3 Waters v. Monarch L. & F. Ins. Co. 34 Eng. Law & Eq. 116; Story's Ag. Sec. 111.

course may release debtors for and upon such transactions, unless so far as specially restricted by his principal.1

§ 275. Foreign factors are generally treated as principals, whether they are known to be acting for others or not, so that exclusive credit is generally given by and to them; and they alone, therefore, are entitled to maintain actions on contracts arising in their conduct of the business.2

Domestic factors, by the usages of trade, and by custom having its origin in the convenience of the parties interested, are treated as principals, but not as exclusive principals, for the owner of the goods may sue or be sued on the contracts made by his factor, whether, in making the contract, the other party was or was not aware that the factor was acting as such for another person.3

§ 276. A factor del credere is one who, for an additional commission, or other consideration, in case of sale being made on credit, undertakes to guarantee to his principal the debt due by the buyer. A factor with a del credere commission is liable to the principal if the purchaser becomes insolvent, or fails to pay the debt; but the factor is not primarily the debtor, and before reaching the factor, the principal must make it appear that the buyer cannot be made to pay, and to that end, the principal may, in his own name, sue the buyer, notwithstanding the del credere commission.4

§ 277. Presumption of knowledge of consignor as to usages of trade.-In forwarding goods for sale to a factor

1 Drinkwater v. Goodwin, Cowp. 254; Johnson v. Osborne, 11 Adolph. & Ellis, 549; Dunlap's Paley on Agency, 278, 285, 286.)

2 Wilson v. Zuluetta, 14 Q. B. 405; 1 Liverm. on Agency, 226, 227; Story on Agency, Sec. 400.

3 Paley on Agency, 324, 361; Story on Agency, Sec. 400 et seq. The lien of a factor who has accepted a draft specifically payable out of the property of the drawer, in the hands of the factor, in favor of a creditor of the drawer, while the factor retains the custody of the property with the consent and as the mutual agent of both parties, drawer and payee, is paramount to that of any other creditor or purchaser from the owner. (Eaton v. Truesdill, 52 Ill. 307.)

4 Gale v. Comber, 7 Taunt. 558; Peele v. Northcote, Ibid, 478; Morris v. Cleasby, 4 M. & Selw. 566; Thompson v. Perkins, 3 Mason, 232; 2 Kent. Com. 624–5; Story on Agency, Sec. 215; Lewis v. Boheme, 33 Md. 412.

or commission merchant, the principal is presumed to intrust them to his agent for disposal, in conformity with established usages in the contemplated market, and to confer on him the means necessary and proper for the accomplishment of the purposes of the consignment, by the various means which are justified or allowed by the usages of trade, so that under an ordinary consignment, without special restriction, it will be understood that the factor may sell upon credit as well as for cash, to the extent justified by the usages of trade and for the usual period of time.

The principal is presumed to have authorized the agent to sell in the usual manner in which similar goods are disposed of in the special market.1

§ 278. The factor may pledge goods consigned, when.— The necessities of trade, which have given rise to the employment of factors, are such that certain expenses must necessarily be incurred by this agent of the seller; and in view of that fact, the consignor is presumed to have clothed his agent with power to pay such charges upon the goods as are requisite to further the objects of the consignment.

It is customary for the factor to pay inland freight, forwarding charges, and similar expenses incident to the transit of the goods to him; advances are often made by the consignee to the producer, and it is understood by the parties that out of the money realized from sales, these disbursements, and the factor's commissions, are to be paid.

The relation of the factor to his principal is such that, as a

1 Story on Agency, Sec. 60; Dunlap's Paley on Agency, Sec. 201; Ibid, 207; Houghton v. Mathews, 3 Bos. & Pul. 489. "The credit given by the factor must, however, be reasonable and customary; and the security which he takes from a purchaser must be of such a nature as that the principal may avail himself by the exercise of reasonable diligence, and without being exposed to extraordinary risk or trouble." (Dunlap's Paley on Agency, 207, Note 1; Barton v. Ladok, Bulstr. 103.)

"While no statute or principle of public policy intervenes, but a rule of law is a mere privilege which may be waived, such waiver may as well be by a custom known to, and acquiesced in, by the parties, as by an express contract." (Colket v. Ellis, Court of Com. Pleas of Phil. March, 1875.) A custom or usage, which is relied upon as explanatory of the understanding of parties to a contract, must not be repugnant to the terms of the contract, nor to the law. (Randall v. Smith, 63 Me. 105.)

FARM-22.

general rule, the service of the former is not rendered upon the credit of the latter, as in an ordinary employment, and it is seldom that the personal responsibility of the consignor is, by the factor, relied upon. The credit extended by the factor is upon the expectation that he shall be paid from the sale of the produce, and that such is the understanding the consignor is aware; hence, by sending the goods to the factor, the consignor is assumed to have acted with reference to this understanding, and to have contracted with the consignee in such manner as to create in him a special property in the articles consigned, sufficient to protect himself in the premises. This special property being created, the factor may pledge goods consigned to him for advances. made to his principal, or for the purpose of raising money for him, or in order to raise money to reimburse himself to the amount of his own lien, or for the payment of duties, or other charge or purpose allowed by law or justified by established usages of trade.1

§ 279. The factor cannot pledge goods for his own debts which have been consigned to him for sale, or in any manner convert the property of the principal to his own use; he holds himself out to the public for employment in a specified capacity, and the acceptance of his services implies a limit to the trust to the extent usual in such employment. The power of sale does not authorize the factor in disposing of the principal's property by way of barter, or in any other way than by usual course of trade, a departure from which will render the factor directly liable for conversion, and he will be liable to the principal for the value of the goods.2

§ 280. Innocent pledgee of consigned goods not protected. There is nothing in the consignment of goods to a factor for sale which divests the title of the consignor to any

1 Story on Agency, 113: Pultney v. Keymer, 3 Esp. 182; 2 Kent's Com. 625-8. 22 Kent's Com. 626. "Though a factor may sell, and bind his principal, he cannot pledge the goods as a security for his own debt, not even though there be the formality of a bill of parcels and a receipt. The principal may recover the goods of the pawnee; and his ignorance that the factor held the goods in the character of a factor, is no excuse." (Kennedy v. Strong, 14 Johns. 128; Roderiguez v. Hoffman, 5 Johns. Ch. 417: Story on Agency, 113; Dunlap's Paley on Agency, 207, and Note 1.

extent, other or further than by the creation of the factor's lien for advances and commissions. The ownership remains the same, until an actual sale divests the title in the manner contemplated. When the sale is consummated, it is the act of the owner, by his agent, the factor; and all parties are justified in dealing with the agent, as such, to the extent of his authority to sell, which may be implied from his having the goods in his hands, ostensibly for that purpose. But there is nothing to justify the belief that he is clothed with power to act, with reference to the goods, in any manner other than that which is usual in making sales, and he who deals with a factor in any other way does so at his peril. The title to property can be parted with by the owner's consent, and the pledgee not only has no proof of the owner's assent to the pledge, but he ought to regard the attempt, by the factor, to so dispose of goods, as notice of a wrongful conversion by him.1

§ 281. Consignor may recover of pledgee value of goods. If consigned goods be pledged by the factor for his own debt, and the pledgee sell them, the owner may recover of the pledgee the value of the property so pledged and sold. The title to consigned goods being in no wise affected by a pledge of them by the factor, the owner has the same rights against the pledgee, so far as following his property is concerned, which he had against the factor. He has a right to take his property, by paying such charges as he has assented to; and if he find his goods in the hands of the pledgee, he may recover them, upon payment of such charges as the factor might justly make. If, however, the pledgee refuses to deliver the goods, or has so disposed of them that they cannot be reached, he is deemed to have converted them to his own use, to have purchased them at market value, and the owner may recover that value from him.2

1 Story on Agency, 225; Paley on Agency, 340-2; Ibid, 218; Bouchont v. Goldsmid, 5 Ves. 211; Boyson v. Coles, 6 M. & Selw. 14; Warner v. Martin, 11 Howard, (U. S.) 209; Evans v. Porter, 2 Gall. 13.

2 Patterson v. Tash, 2 Strange, 1178; Daubigny v. Duval, 5 T. R. 604; McCombe r. Davis, 6 East, 538; Pickering v. Bask, 15 East, 38; Mason v. Amringe, 1 Mass. 442; Rodriguez v. Hefferman, 5 Johns. Ch. 417; Kennedy v. Strong, 14 Johns. 128; Buckley v. Packard, 20 Ibid, 421; Stearns v. Wilson, 3 Denio, 473; Walker v. Wetmore, 1 E. D. Smith, 25; Kinder v. Shaw, 2 Mass. 398; Florence Sewing Machine Co. v. Warford, 1 Sweeney, (N. Y.) 433.