Page:Halsbury Laws of England v1 1907.pdf/404

 ;

Agency.

182 Sect.

1.

In General. Effect of

usage or custom.

the rights and duties implied by law as are not clearly excluded by express words or by necessary implication (e).

391. Wherever a principal employs an agent belonging to a class of professional agents, or instructs him to deal at a particular place, a question arises how far the usages of the class or place in question are incorporated with the contract between them. Where the contract is an implied one only, such usages are deemed to be incorporated (/), provided that they are reasonable (^), even though the principal be in fact unacquainted with them (h). But no usage, which the Courts hold to be unreasonable (i), is binding upon the principal {k), unless he is shown to have known of it at the time when he employed the agent, and to have assented to it (I), or unless the circumstances of the particular case preclude him from denying his knowledge and assent (m). The same rules apply to the case of an express contract (n), except that no usage can be incorporated which is inconsistent with the expressed intentions of the parties (o).

Fiduciary nature of relation.

Remedy

for

breach of contract of agency.

392. The relation is of a fiduciary nature (p), whenever the principal reposes trust and confidence in the person whom he selects as his agent. This is so in all cases of general agency (q), but where the agency is not a general one, its fiduciary nature depends upon the circumstances of the particular case (r). A contract of agency, being in the nature of a contract for personal services, will not be s|)ecifically enforced at the suit of either party (s). But an injunction may be granted to restrain a breach of such a contract {t). (e) Graham Y. Ackroyd (1852), 10 Hare, 192, where a del cre.dere agent was held not to be entitled to reimbursement in respect of matters covered by his agency; and compare hooper v. Treffry [184:1) 1 Exch. 17, where the reimbursement claimed and upheld was outside the del credere agency. (/) Baijliffe v. Butterworth (1847), 1 Exch. 425. ig) Eor examples of reasonable usages see Bridges v. Garrett (1870), L. E. 5 Walker v. Barker (1900), 16 T. L. E. 0. P. 451 (receipt of payment by cheque) 393 {id.) Croj)'per v. Cook (1868), L. E. 3 C. P. 194 (agent incurring personal liability on the contract) Pelham v. Hilder (1841), 1 Y. & C. Ch. 3 (sale on credit) Bcott v. Godfrey, [1901] 2 K. B. 726 (consolidation of orders). (A) Cropper v. Cook^ supra. (?) For examples of unreasonable usages see Robinson v. Mollett (1875), L. E. 7 H. L. 802 (agent makes himself principal) De Bussche v. Alt (1878), 8 Ch. D. 286 Sweeting v. Pearce (1859), 7 C. B. (n. s.) 449 (payment by set-off) Marsh V. «/e// (1862), 3 E. & E. 234 (auctioneer selling by private contract). (k) Neilson v. James (1882), 9 Q. B. D. 546; Perry v. Barnett (1885), 15 B. D. 388. (l) See Sweeting v. Pearce, s^ipra, per CocKBUB-isr, C.J., at p. 481 ; Mateieffy. Grossfield (1903), 51 W. E. 365. (w) Seymour v. Bridge (1885), 14 Q. B. D. 460. [n) Scott and Norton v. Godfrey, [1901] 2 K. B. 726. (o) Bower v. Jones (1831), 8 Bing. 65. As to the admissibility of parol evidence of usage when there is a written contract, see title Contract. ,















a

Eor examples see pp. 184, 188, j^ost. Makepeace v. Eogers (1865), 4 De G-. J. & Sm. 649. Foley v. Hill (1848), 2 H. L. Cas. 28 Fluker v. Taylor (1855), 3 Drew, 183 Mackenzie v. Johnston (1819), 4 Madd. 373. (s) White V. Bohy (1877), 37 L. T. 652. {t) Mutual Reserve Fund Life Association v. Neiu York Life Lisurance Co. (1896), 75 L. T. 528. (p)

(q) (r)