factor

A factor cannot delegate his trust to his clerk. The law upon this point is well settled. ... An agent ordinarily, and without express authority, or a fair presumption of one, growing out of the particular transaction or the usage of trade, has not the power to employ a sub-agent to do the business, without the knowledge or consent of his principal. The agency is a personal trust for a ministerial purpose, and cannot be delegated; for the principal employs the agent from the opinion he has of his personal skill and integrity, and the latter has no right to turn his principal over to another, of whom he knows nothing.

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." Paley, Ag. 13; 1 Livermore, Ag. 68; Story, Ag. § 33; Comyn, Dig. "Merchant" (B); Malynes, Lex. Merc. 81; Beawes, Lex. Merc. 44; 3 Chit. Com. Law, 193; 2 Kent, Comm. (3d Ed.) 622, note (d); 1 Bell, Comm. 385, §§ 408, 409; 2 Barn. & Aid. 143. A domestic factor is one who resides in the same country with his principal. A foreign factor is one who resides in a different country from his principal. 1 Term R, 112; 4 Maule & S. 576. A "factor" differs from a "broker" in that he is intrusted with the possession and management of the goods to be sold, while a broker has only an agency to sell, or possession of documents. Story, Ag. § 33. In Maritime Law. A factor was anciently an agent who accompanied the ship, the cargo being consigned for sale, and fie being empowered to purchase a return cargo out of the proceeds. Such an agent is usually called a "supercargo." Beawes, Lex. Merc. 44, 47.

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

1. A commercial agent, employed by a principal to sell merchandise consigned to him for that purpose, for and in behalf of the principal, but usually in his own name, being intrusted with the possession and control of the goods, and being remunerated by a commission, commonly called "factorage." Howland v. Woodruff, 60 N. Y. 80; In re Rabenau (D. Ct) 118 Fed. 474; Lawrence v. Stonington Bank, 6 Conn. 527; Graham v. Dnckwall, 8 Bush (Ky.) 17. A factor is an agent who, in the pursuit of an independent calling, is employed by another to sell property for him, and is vested by the latter with the possession or control of the property, or authorized to receive payment therefor from the purchaser. Civ. Co.de Cal. § 2026; Civ. Co.de Dak. § 1168. Classification. Factors are called "domestic" or "foreign" according as they reside and do business in the same state or country with the principal or in a different state or country. A domestic factor is sometimes called a "home" factor. Ruffner v. Hewitt, 7 W. Va. 585. Synonyms. A factor differs from a "broker" in that he is intrusted with the possession, management, and control of the goods, (which gives him a special property in them,) while a broker acts as a mere intermediary without control or possession of the property; and further, a factor is authorized to buy and sell in his own name, as well as in that of the principal, which a broker is not Edwards v. Hoeffinghoff (C. C.) 38 Fed. 641: Deiafield v. Smith, 101 Wis. 664, 78 N. W. 170, 70 Am. St. Rep. 938; Graham v. Duckwnil, 8 Bush (Ky.) 12; Slack v. Tucker, 23 Wall. 330, 23 L. Ed. 148. Factors are also frequently called "commission merchants ;" and it la said that there is no difference in the meaning of these terms, the latter being perhaps more commonly used in America. Thompson v. Woodruff, 7 Cold. 410: Duguid v. Edwards, 50 Barb. (N. Y.) 288; Lyon v. AJ-vord, 18 Co.nn. 80. Where an owner of goods to be shipped by sea consigns them to the care of an agent, who sails on the same vessel, has charge of the cargo on board, sells it abroad, and buys a return cargo out of the proceeds, such agent is strictly and properly a "factor. though in maritime law and usage he ls com na only called a "supercargo.", Beaw. Lex Merc. 44, 47; Iiverm. Ag. 69, 70.

— Factorage. The allowance or commission paid to a factor by his principal. Winne v. Hammond. 37 111. 103; Slate v. Thompson, 12 Mo. 12, 25 S. W. 346.

— Factors' acts. Th name given to several English statutes (6 Gen. IV. c. 94; 5 & 6 Viet c. 39; 40 & 41 Viet, c. 39) by which a factor is enabled to make a valid pledge of the goods, or of any part thereof, to one who believes him to be the bona fide owner of the goods.
2. The term ls used in some of the states to denote the person who is elsewhere calied "garnishee" or "trustee." See Factorizing Process.
3. In Scotch law, a person appointed to transact business or manage affairs for another, but more particularly an estate-agent or one intrusted with the management of a landed estate, who finds tenants, makes leases, collects the rents, etc.

— Judicial factor. In Scotch law. A factor appointed by the courts in certain cases where it becomes necessary to intrust the management of property to another than the owner, as; where the latter is insane or imbecile or thf infant heir of a decedent

A commercial agent who buys and sells goods for others on commission; in some of the states, a person in whose hands the effects of another ai-e attached for debt, otherwise called trustee. V. Factorizing process; Trustee process.

A commercial agent, employed by a principal to sell merchandise consigned to him for that purpose, for and in behalf of the principal, but usually in his own name, being intrusted with the possession and control of the goods, and being remunerated by a commission, commonly called "factorage." A factor is an agent who, in the pursuit of an independent calling, is employed by another to sell property for him, and is vested by the latter with the possession or control of the property, or authorized to receive payment therefor from the purchaser. Civil Code Cal. § 2026; Civil Code Dak. § 1168. When the agent accompanies the ship, taking a cargo aboard, and it is consigned to him for sale, and he is to purchase a return cargo out of the proceeds, such agent is properly called a "factor." He is, however, usually known by the name of a "supercargo." Beaw. Lex. Merc. 44, 47; Liverm. Ag. 69, 70; 1 Domat, b. 1, t. 16, § 3, art. 2. Factors are called "domestic" or "foreign," according as they reside in the same country with the principal or in a different country. A "factor" is distinguished from a "broker" by being intrusted with the possession, management, and control of the goods, and by being authorized to buy and sell in his own name, as well as in that of his principal. Russ. Fact. 4; Story, Ag. § 33; 2 Steph. Comm. 127; 2 Barn. & Ald. 137, 143; 2 Kent, Comm. 622, note. The term is used in some of the states to denote the person who is elsewhere called "garnishee" or "trustee."

^ An agent who is commissioned by a merchant or other person to sell goods for him and receive the proceeds.? A commercial agent, transacting the mercantile affairs of other men, in consideration of a fixed salary or certain commission, and, principally, though not exclusively, in the buying and selling of goods.* An agent employed to sell goods or merchandise, consigned or delivered to him, by or for his principal, for a compensation called his " factorage " or commission.* Often called a "commission merchant" or "conr signee;" and the goods received by him a "consignment." When, for an additional compensation in ease of sale, he undertakes to guarantee the payment of the debt due by the buyer, he is said to receive a del credere commission; that is, a commission of trust or credit.' A factor or commission merchant may buy and sell in his own name, and he has the goods In his possession. A " broker " cannot ordinarily buy and sell in his own name and has no possession of the goods.' Domestic factor. A factor who resides in the same country with his principal. A foreign factor resides in a different country. A factor may sell sufficient of the merchandise to reimburse himself for advances, or to meet liabilities incurred, unless he has agreed not to do so, or the consignor is ready to reimburse him. He must obey the orders of his principal.' ' [Abbott's Law Diet. ^ L. facere^ q. v. " Cotton V. Hiller, 62i Miss. 13 (1876), Sunrall, C. J. * Lawrence v. Stonington Bank, 6 Conn. 537 (1827), Hosmer, C. J. » Story, Agency, §§ 33, 357; Duquid v. Edwards, 50 Barb. 295 08C7); Whart. Ag. § 784; JBxp. White, L. E., 6 C. Ap. 403(1871); 1 Pars. Contr. 78; 1 Bl. Com, 437. « Slack V. Tucker, 23 Wall. 330 (1874), Bradley, J. To the extent of advances and charges, he has a lien, a special property, in the merchandise; and he may pledge articles to the amount of that lien. He may protect his possession by a suit against a' trespasser. He cannot sell to his own creditor in payment of his debt; nor can he delegate his authority without assent of the principal. Before he has effected a sale, the principal may reclaim possession by paying advances, interest thereon, and expenses.* The principal may sue and be sued on a contract made by the factor in his own name." If guilty of gross negligence in conducting the business, he forfeits all claim to compensation for his servites.' See further Agent. raptor's Act. Statute of 6 Geo. IV (1826), c. 94. Empowered a factor to pledge the goods, and protected persons who believed him to be the real owner. Statute of 6 and 6 Tict. (184S) further enabled him, as if the true owner, to enter into any agreement respecting the goods by way of "pledge, lien or security," excepting as to antecedent debts; and this, notwithstanding the lender is aware that the borrower is a factor only. Similar legislation exists in the States. Factorizing process. Trustee process; garnishment,* q. v,

An agent employed to buy and sell goods on commission in his own name, intrusted with their possession and control.

In mercantile law. A mercantile or commercial agent, who buys and sells goods for others on commission.* 2 Ken Cs C<ym. 622. Otherwise called a commission merchant, and a consignee of goods, being generally the correspondent of a foreign house. Id. ibid. note. More commonly employed to sell than to buy, and hence also defined to be " an agent to whom goods are consigned or delivered for sale by, or for a merchant, or other person residing abroad, or at a distance from the place of sale." Russell on Factors, 1. Story on Agency, § 33. A factor is distinguished from a broker by being entrusted with the possession, management and control of the goods, and by being authorized to buy and sell in his own name, as well as in that of his principal. Russell on Factors, 4. Story on Agency, § 33. 2 Stepk. Com. 127. 2 B. d Aid. 137, 143. 2 Kent's Com. 622, note.