14 Definitions and distinctions. [в§в§ 17-22.

See Jeffrey v. Bigelow (1835), 13 Wend. (N. Y.) 518, 28 Am. Dec.

476.

§ 18. How to be proved. — Whether an agency

Is general or special is usually a fact to be proved. The

law itself makes no abstract presumption in reference

to it, though when an agency is once shown to exist,

the law would presume it general rather than special.

It is always true that anybody who relies upon the existence of

agency has imposed upon him the burden of proving it. He must

not only prove that it exists, but he must also show what kind~oTan

agency it is. The law never simply presumes that agency exists,

and it never simply presumes that an agent is general or special.

When it appears that an agency does exist, the court, if it makes

any presumption at all, presumes it to be general rather than lim-

Ited, but, speaking generally, the fact of the agency must be shown

and also the nature and extent of it.

See Savings Fund Society v. Savings Bank, Cas. Ag. 371.

В§ 19. Professional and non-professional agents.

—Agents may further be classified as professional and

n o n-p r of ess iona I.

Of the professional agents, the most important are

the attorney at law, the auctioneer, the broker and the

factor.

В§20. The attorney at law is one whose profes-

sion it is to give advice and assistance in legal matters,

and to prosecute and defend in the courts the causes of

those who may employ him for that purpose.

В§ 21. The auctioneer is one whose business it is

to sell or dispose of property, rights or privileges, at

public competitive sale, to the person offering or ac-

cepting the terms most favorable to the owner.

В§ 22. The broker is one whose business it is to

bring parties together to bargain, or to bargain for

them, in matters of trade, commerce or navigation.

Brokers are of many kinds, such as merchandise brok-

X

y.

§§ 22-26.] DEFINITIONS AND DISTINCTIONS. US

ers, stock-brokers, insurance brokers, peal estate

brokers, and tlie like.

В§23. The factor is one whose business il is to

receive and sell goods for a commission. He is often

called a commission-merchant. If he guarantees pay-

ment for the goods he sells, he is said to act under a

del credere commission. When authorized t<> sell a

cargo which he accompanies on the voyage, he is called

a super-cargo.

В§ 24. Distinctions between these classes of

agents. — These various classes of agents differ mate-

rially from each other. Thus the auctioneer is em-

ployed to sell or dispose of only, and not to buy, and his

sales are always public, lie is primarily the agent of

(lie seller only, blit lie becomes the agent of the bliyei;

also when he accepts his bid and enters his name upon/

the memorandum of the sale.

В§ 25. The broker sells at private sale, and has

not usually the possession of the goods or property

which he sells, lie is regarded as the agent of the per-

son who first employs him, and he can not represent

both parties to the transaction unless with full knowl-

edge of his relations to the other each principal sees fit

to confide his interests to him. The broker acts prop-

erly in the name of his principal only, and he has not

usually any property in his possession upon which he

could claim a lien.

В§ 26. The factor is entrusted with the posses-

sion of the goods, and sells usually in his own name.

Unlike the auctioneer, his sales are private. The factor

has a special property in the goods, a lien upon them

for his advances and charges, and, unless restricted,

may sell upon a reasonable credit.

Each of these different classes of agents will be more

fully considered hereafter.

16

FOR WHAT PURPOSES CREATED.

[§§ 27-29.

CHAPTER II.

FOR WHAT PURPOSES AN AGENCY MAY BE CREATED.

В§ 33.

34.

Illustrations.

Validity as between

principal and agent.

35. How when contract il-

legal in part.

В§ 27. The general rule.

28. The exceptions.

29. The first exception.

30. Illustrations.

31. The second exception.

32. How these cases re-

garded in law.

§ 27. The general rule. — It is the general rule that

an agency may be created for the transaction of any

lawful business-, and that whatever a person may law-

fully do, if acting in his own right and in his own be-

half, he may lawfully delegate to an agent.

§ 28. The exceptions. — The cases is which authority

cannot lawfully be delegated fall into one or the other

of two general classes: