Factor

An agent employed to sell goods or merchandise consigned or delivered to him, by or for his principal, for a compensation, commonly called factorage or commission.

Pal. Ag. 13; Sto. Ag. § 33; Com. Dig. Merchant, B; Malynes, Lex Merc. 81; Beawes, Lex Merc. 44; 3 Chit Com. L. 193; 2 Kent 622; 1 Bell, Comm. 385, § 408; 2 B. & Aid. 143.

An agent for the sale of goods in his possession or consigned to him.

Lawson, R. A Rem. § 227.

A factor or commission merchant is one who has the actual or technical possession of goods or wares of another for sale. A possession or control. He is simply an agent with very limited powers; J. M. Robinson, Norton & Co. v. Cotton Factory, 124 Ky. 435, 99 S. W. 306, 102 S. W. 869, 8 L. R. A. (N. 474, 14 Ann. Cas. 802. When the agent accompanies the ship, taking a cargo aboard, and It la consigned to him for sale, and he Is to purchase a return cargo out of the proceeds, such agent is properly called a factor; be Is, however, usually known by tbe name of a supercargo {q. V.).

Beawes, Lex Merc. 44; Livermore, Ag. 69; 1 Domat, b. 1, t. 16, { 8, art 2.

A factor differs from a broker In some Important particulars: namely, he may buy and sell for bla principal in his own name, as well as In tbe name of his principal; on tbe contrary, a broker acting as such should buy and sell In tbe name of his principal; 2 B. & Aid. 143; 8 Kent 622; Slack v. Tucker, 23 Wall. (U. S.) 321, 23 L. Bd. 143: Ward T. Brandt 11 Mart 0.

S. (La.) 831. 18 Am. Dec. 852.

Again, a factor is Intrusted with possession, management disposal, and control of tbe goods to be bought and sold, and has a special property and a lien on them; the broker, on tbe contrary, has usually no such possession, management, control, or disposal of tbe goods, nor any such special property or lien; Paley, Ag. 13; 1 Bell, Com. 885. The business of factors in the United States is usually done by commission merchants, who are known by that name, and tbe term factor is but little used; 1 Pars. Contr. 78. The term factor, however, is largely used in the Southern States in tbe cotton business, and in a different sense from commission merchant; Fordyce v. Peper, 16 Fed. 516. He not only sells cotton, but makes advances to the merchant or planter, in cash or goods, to be paid when the crop comes in. He thus has a lien upon the crop before it is shipped to him. In Alabama tbe term "commission merchant" as used in the revenue laws is synonymous with “factor”; Perkins V. State, 60 Ala. 164. A domestic factor is one who resides In the same country with his principal. By the usages of trade, or Intention of law, when domestic factors are employed in the ordinary business of buying and selling goods, it is presumed that a reciprocal credit among tbe principal and tbe agent and third persons has been given. When a purchase has been made by such a factor, be, as well as bis principal, la deemed liable for the debt; and in case of a sale the buyer is responsible both to tbe factor and principal for tbe purchase-money; but this presumption may be rebutted by proof of exclusive credit; Story. Ag. § 267, 291, 293; Paley, Ag. 243, 871; 9 B. A C. 78; 16 Bast 62. A foreign factor is one who resides in a different country from his principal.

1 Term 112; 4 Maule & S. 676.

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 tbe presumption Is that the credit is given exclusively to the factor. But this presumption may be rebutted by proof of a contrary agreement; Story, At;. ( 268; Mech. Ag. 1061; Bull. N. P. 130; 1 B. & P. 898; 9 B. A C. 78.

His duties

He is required to use reasonable skill and ordinary diligence in his vocation; 1 Ventr. 121; De Bavier v. Funke, 66 Hun 633, 21 N. T. Supp. 410; Foster v. Bush, 104 Ala. 662, 16 South. 625. If for any reason not tortious, he delays selling the goods consigned to him, he is not liable for a subsequent loss occurring through an act of God; Dunbar v. Gregg, 44 111.

App. Camming & Co., 77 Ga. 04, 4 Am. St. Rep. 72; 6 0.

B. 805; but when be has none he may and ought to act according to the general usages of trade; Brown v. Mc Gran, 14 Pet (U. S.) 479, 10 L. Ed. 550; 7 Taunt 164; Judson V. Sturgis, 6 Day (Conn.) 656; Liotard y. Graves, 3 Caines (N. Y.) 226; Forre.stier v. Bordman, 1 Story, 43, Fed. Cas. No. 4,945; to sell for cash when that is usual, or to give credit on sales when that is customary; Daylight Burner Co. v. Odlln, 61 N. H. 56, 12 Am. Rep. 45. He is bound to render a just account to his pfincipal, and to pay him the moneys he may receive for him. The mere fact that one sells products as a factor, does not impose upon him the burden of proving due diligence in the sale; Govan v. Cushing, 111 N. C. 458, 16 S. E. 619.

His rights

He has the right to sell the goods in his own name; and, when untrammelled by instructions, he may sell them at such,tlmes and for such prices as, in the exercise of a just discretion, he may think best for his employer; 3 C. B. 380; Bessent V. Harris, 63 N. C. 542; but he must obey Instructions if given; Ernest v. Stoller, 6 Dill. 4.S8, Fed. Cas. No. 4,520; Scott v. Rogers, 31 N. Y. 076; but when the instructions are to wait until a certain law has produced its effect on the market, a certain discretion as to time may be exercised; Milbank v. Dennistoun, 21 N. Y. 386. He may sell on credit when such is the usage of the market; Forrestler v. Rordman, 1 Sto. 43, Fed. Cas. No. 4,945; but if he sell on change he is held to a high degree of diligence to ascertain the solvency of the purchaser; Foster v. Waller, 75 111.

464.

In the absence of instructions he may give a warranty; Schuchardt v. Allens, 1 Wall. (U. S.) 359, 17 L. Ed. 642; and he may insure the goods of the principal in his own name; Johnson v. Campbell, 120 Mass. 449. He is, for many purposes, between himself and third persons, to be considered as the owner of the goods. He may, therefore, recover the price of goods sold by him in his own name, and, consequently, he may receive payment and give receipts, and discharge the debtor, unless, inaeed, notice has been given by the principal to the debtor not to pay. But th6 title to goods consigned to a factor to be sold remains in the principal until sold, and may not be sold on execution to pay debts of the factor; Barnes Safe & Lock Co. v. Tobacco Co., 38 W. Va. 158, 18 S. E. 482,, 22 L. R. A. 850, 45 Am. St Rep. 846. He has 'll lien on the goods for advances made by him, and for his commissions; this exists by law and apart from any agreement; Plattner Implement Co. v. International Harvester Co., 133 Fed. 376', 66