If the revocation of the agency be not a breach of the

contract, as where the agency is at the will of the principal,^

or is revoked because of a breach by the agent himself,' no

damages can be recovered, but only compensation for services

actually rendered. If, however, the agent is guilty of such

gross misconduct or negligence that tlie service he has ren-

dered is of no value to his principal, he is not entitled to

compensation.^

1 Haniilton v. Love, 152 Ind. Oil; Howard r. Daly, 61 N. Y. 302;

Sutherland v. Wyer, 67 Me. 64; Cutter v. Gillette, 163 Mass. 95; Hand

V. Clearfield Coal Co., 143 Pa. St. 408.

2 Howard v. Daly, 61 N. Y. 362; Leatherberry v. Odell, 7 Fed. Rep.

641 ; Horn v. Western Land Ass'n, 22 ]\Iinn. 233.

3 Costigan r. Mohawk, &c. Rd. Co., 2 Denio (X. Y.), 009 ; Wolf v.

Studebaker, 05 Pa. St. 459.

* Costigan i'. Mohawk, &c. Rd. Co., 2 Denio (N. Y.), 009; Strauss v.

Meertief, 64 Ala. 299; Harrington v. Gies, 45 Mich. 374.

6 Strauss v. Meertief, 04 Ala. 299.

6 United States v. Jarvis, Daveis (U. S. C. C), 274.

^ Lawrence v. Gullifer, 38 Me. 532; Massey v. Taylor, 5 Cold. (Tcnn.)

417.

8 Dalton V. Lvin, 4 C. & P. 289; Bracey v. Carter, 12 Ad. & E. 373;

Sumuer v. Reicheuiker, 9 Kans. 320.

OBLIGATIONS OF PiaNCIPAL, 99

If there be no contract, or none for a definite time or a

definite service, the revocation by the principal gives the

agent no remedy.^ Whetlicr there has been an engagement

for a definite time or for definite services so that no irreme-

diable revocation can occur is a question of construction to be

settled by the terms of the contract or by custom and usage.^

В§ 80. Compensation: revocation of agency by law.

The circumstances which will revoke an agency by opera-

tion of law have already been pointed out.=^ There may be

some incapacity on the part of the principal or some incapac-

Ity on part of the agent. In either case the impossibility in

question discharges the contract as to both parties, but does

not discharge the liability of the principal for services already

rendered. In case of death, insanity, illness, imprisonment,

or other incapacity or coercion of the agent, he or his re-

presentative may recover in quasi-contract for benefits

already conferred,* unless he has expressly stipulated that

he shall not be entitled to compensation under such cir-

cumstances,^ or unless he knows at the time he makes the

contract that it will be impossible for him to perform it.*^ In

such case, however, the cost of completing an entire contract

may be considered in reduction of the claim for benefits

conferred." Even where the illness or imprisonment is caused

by the fault of the plaintiff he may still recover, as the illness

or imprisonment, and not the wrongful act of the agent, is

regarded as the proximate cause of the breach.^

1 Simpson c. Lamb, 17 C B. 603; Burton r. Great N". Ry., 9 Exch.

507; In re London, &c. Bk., L. R. 9 ВЈq. 149 ; Rhodes v. Forwood, 1 App.

Cas. 256.

2 Queen v. Parr, 39 L. J. Ch. 73; Lewis v. Lis. Co., 61 :Mo. 534.

3 Ante, §§ 70-71.

4 Wolfe V. Howes, 20 N. Y. 197; ILighes v. Wamsutta Mills, 11 Allen

(Mass.), 201 ; Green i-. Gilbert, 21 Wis. 401 ; Walsh v. Fisher, 102 Wis.

172.

6 Cutter V. Powell, 6 T R. 320.

^ Jennings v. Lyons, 39 Wis. 553.

T Ricks V. Yates, 5 Ind. 115; Wolfe r. Howes, 20 X. Y. 197.

В® Hughes V. Wamsutta Mills, supra.

100 I'UINCIPAL AND AGENT.

Bankruptcy of the ])rincipalj however, does not discharge

the estate from liability for damages, though it revokes the

authority of the agent.^ But in case of revocation in con-

sequence of the death of the principal, no damages may be

recovered but only compensation earned. -

В§ 81. Compeusatiou: renunciation of agency by agent.

Where the agent renounces the agency in breach of the

contract, it is generally held that he can recover nothing for

the services already performed. It is due to his own fault

that the contract is not completed, and most of the courts

refuse to depart in his behalf from the severe rule of the law,

which forbids a man to profit from his own wrong.^ But a

few jurisdictions have been led from considerations of the

liardships of the case to permit a recovery in qaantum meruit

for the services actually performed, so far as tlie value of

such services exceeds the damage resulting from the breach.*

The two classes of cases are irreconcilable, and it is neces-

sary to know what is held in each jurisdiction where the

question may arise.

The above applies to the cases of indivisible contracts, or

to one partly performed division of a divisible contract.

But how of a divisible contract in which one or more parts

have been fully performed ? If the agreement is that the

agent shall work a year at a given price per month, or at a

given commission on actual sales, payable as the work or

sales progress, then the agent upon abandoning the contract

would be able to maintain an action for the full months he

1 Vanuxem v. Bostwick, 10 W. N. C. (Pa.) 74; s. c. 7 Atl. Rep. 598.

2 Yerrington v. Greene, 7 R. I. 589.

В» Stark V. Parker, 2 Pick. (Mass.) 2G7 ; :\ril]er i'. Goddard, 34 Me.

102; Hutchinson v. Wetmoro. 2 Cal. 310; Ripley v. Chipman, 13 Yt. 268;

Heiison V. Hampton, 32 Mo. 408; Martin v. Schoenbercrer, 8 W. & S.

(Pa.) 307; Diefenback v. Stark, 56 Wis. 102; Timberlake v. Thayer, 71

Mi.ss. 279.

* Britten V. Turner, 6 X. H. 481; IMcClay v. Hedsrp. 18 Towa, 66;

Downey v. Bnrke, 23 ^NIo. 228 (bnt see Henson v. Hampton, unprn) ;

Duncan v. Baker, 21 Kans. 90: Parcell v. McComber, 11 Xeb. 209; Coe

V. Smith, 4 Ind. 79; Allen v. McKibbin, 5 Mich. 449.

OBLIGATIONS OF PRINCIPAL. 101

actually served, or the commissions actually earned, subject

to a counter-claim for damages for the non-performance of

the entire contract. This proceeds upon the theory that in

effect there are twelve contracts in one, and that the breach

of (say) the fifth is no bar to an action for the full pei'furm-

ance of the first, second, third, and fourth. But the fifth, and

the succeeding ones, are abandoned, and the defendant is

entitled to damages for their breach. The most serious

difficulty in these cases is to determine whether a contract is

in fact divisible or indivisible.^ This is really a question of

construction depending upon the ascertainment of the intent

of the parties. The general tendency seems to be to hold

contracts of service entire rather than severable, although

payment may be stipulated for by instalments.^