In matters of trade, commerce and navigation. For the services of

the former there is a fixed stated salary, while for the latter a com-

pensation, commonly styled brokerage, is allowed."

В§ 8. How agent compares with "independent con-

tractor." — The agent — and the servant also — is fur-

— .iii.ii i, im Jb^mtf m \*'*k-

ther to be distinguished from th e "independent co n-

Uunjjg" who is one who exercises some independent

employment, in the course of which he undertakes to

accomplish a certain result, being responsible to his

employer for the end to be achieved and not for the

means by which he accomplishes it.

Judging from what has been already said, does the servant or

the agent more closely resemble the independent contractor? Why?

Thus in a recent case wherein a loaded vessel ju3t leaving port

was found to be on fire, and the master employed S. & Co., who were

doing business as shipping-merchants, to take charge of her and

rescue her cargo, the court said: "The employment of S. & Co.,

under these facts, was something more than the appointment of an

agent. It was more in the nature of an employment or hiring than

an appointment to an agency. It was in the nature of a contract

between the captain of the vessel, as the owner's agent, and S. & Co.,

whereby the latter agreed to extinguish the fire, and if necessary

unload the vessel of its cargo, and do everything else for the pro-

8В§ 810] DEFINITIONS AND DISTINCTIONS. 9

tection of the vessel and cargo. They were employed to do a par-

ticular thing, and were contractors, Instead of agents, in the general

understanding of agency."

See Horan v. Strachan (1890), 80 Ga. 408, 12 S. E. Rep. C78, 22

Am. St. Rep. 471.

§9. Agency differs from trust. — Agency differs

in material respects from the ordinary trust.

See Hartley v. Phillips, (1901), 198 Pa. 9, 47 Atl. Rep. 929;

Knowles v. Scott, [1891] 1 Ch. 717; James v. Smith, [1891] 1 Ch.

384; Cleghorn v. Castle, (1900) 13 Hawaiian 186.

It is true that agency is often said to be a relation

of trust and confidence, and that property in the hands

of an agent is often held to be impressed with a trust

for the benefit of the principal, yet the two relations

are not identical._3— truetr-m-vohes control over prop-

erly, ageney may be totally disconnected with any pa>

ticular property. __The_Jjais4eeIJoIds'a legal__Utie JL Jhe

agent has usually no title at all. The trustee may act

hrins own name, the agent acts normally in the name

of his principal. Trust is not necessarily a contract

relation, agency is properly to be so regarded. A trust

does not necessarily or even usually involve any author

Ity to enter into contracts which shall bind another,

the authority to make such contracts is the distinguish-

Ing characteristic of agency. Other distinctions exist

but these are sufficient to mark the contrast.

See, for example, Central Stock Exchange v. Bendinger, (1901),

48 C. C. A. 726, 109 Fed. Rep. 926, 56 L. R. A. 875.

§ 10. Agency to be distinguished from sale. —

Agency is further to be distinguished from sale. Not

that thi" 1 two contracts are not ordinarily readily

enough distinguished, but because so many cases arise

wherein either through inadvertence or design con-

tracts have been given some of the characteristics of

each, and it is necessary to decide which of them so

10 DEFINITIONS AND DISTINCTIONS. [§§ 10-18.

predominate as to determine the nature of the trans-

action. A typical ease is presented where goods are

put into the nanas of a person under a contract which

in seme of its parts seems to treat that person as an

absolute purchaser of the goods and in other parts

merely as an agent to sell them. No hard and fast rule

can be laid down for the determination of these contro-

versies. Names go for very little, and if the parties

have made a contract which really operates to transfer

the title it must be deemed a sale, even though the

parties have expressly declared that it shall be deemed

an agency.

See Mechem on Sales, §§ 41-49; Ex parte White, (1871), L. R.

6 Ch. App. 397; Arbuckle v. Kirkpatrick (1897), 98 Tenn. 221, 39

S. W. R. 3, 36 L. R. A. 285, 60 Am. St. Rep. 854; Braunn v. Keally,

(1892), 146 Pa. St. 519, 23 Atl. R. 389, 28 Am. St. Rep. 811; Nor-

wegian Plow Co. v. Clark (1897), 102 Iowa 31, 70 N. W. Rep. 808.

§11. Agency differs from lease. — So agency may

be distinguished from lease. As in the preceding case

of sale, the tAvo contracts are usually very much un-

like; but, here as there, cases are met with wherein

one relation has apparently been disguised under the

name of the other. Here as there, also, names are of

no consequence, and the true nature of the contract

determines the case. If, therefore, though the contract

be called a lease, the alleged tenant is so far under the

direction and control of the alleged landlord as to make

the latter the real party in interest and the former

merely his representative, the contract will be held to

be one of agency.

See Petteway v. Mclntyre,— N. Car. — , 42 S. E. Rep. 851.

§ 12. The contract appointing — "Power of attor-

ney." — The contract by which the relation of principal

and agent is created is called a "contract of agency";

the right of the agent to represent the principal is

§§ 12-13.] DEFINITIONS AND DISTINCTIONS. 11

called his '-authority" or "power" j whejj the, authority