Ings V. Bell, 1 c. B. 951.

liabilities on the footing of such consignment, there the legal presumption is, that

the factor is intended to be clothed with the ordinary rights of factors to sell, in the

exercise of a sound discretion, at such time and in such mode as the usage of trade

and his general duty require, and to reimburse himself for his advances and liabili-

ties out of the pi'oceeds of the sale; and the consignor has no right, by any subse-

quent orders, given after advances have been made or liabilities incurred by the fac-

tor, to suspend or control this right of sale, except so far as respects the surplus of

the consignment not necessary for the reimbursement of such advances or liabilities.

Of course, this right of the factor to sell, to reimburse himself for his advances and

liabilities, applies with stronger force to cases where the consignor is insolvent, and

where, therefore, the consignment constitutes the only fund for indemnity."

The Court of Common Bench in England, examined this subject in the late case

of Smart v. Sanders, 6 Man. & Grang. & S. 896 ; and whilst manifesting a strong iu-

clinatiou to recognize the existence of a general custom among factors to sell on de-

fault of the principal, yet decided that the factor's authority to sell was revocable at

the will of the consignor, although the latter on request had refused to refund ad-

Vances previously made, to the full value of the property. Some of the American

courts have pushed the doctrine of Brown v. McGran yet farther, and hold that

where a factor has made advances upon goods in good faith, he may sell upon de-

fault of the pi'incipal, on reasonable demand, to reimburse him, although such sale

may be inconsistent with the instructions given at the time of the consignment.

Blot V. Borieau, 1 Sand. Sup. Ct. Rep. Ill, S. C. ; 3 Comst. 78. Parker v. Branker,

22 Pick. 40. Marfield V. Goodhue, 3 Comst. 62. Frothingham V. Everton, 12 n. H,

239. See also Williams & Morley V. Littlefield, 12 Wend. 362. Jordan et ah. V.

James, 5 Hamm. 88.

170 Mercantile persons.

Rights of third Persons against Principal.

As far as the agent's authority extends, lie has a right to bind

his principal to third persons. Now his authority may, as we have

seen, be either expressly given, or inferred from the acts of his sup-

posed principal. When it is expressly given, there can be no doubt

as to its extent, except from the uncertainty of words employed in

delegating it. (j) When, however, it is to be inferred from the con-

duct of the principal, that conduct furnishes the only evidence of

Its extent as well as of its existence ; and, in solving all questions

on this subject, the general rule is, that the extent of the agent^s au-

thority is {as between his principal and third parties) to be measured by

the extent of his usual em2:>loyment ; for he who accredits another by

employing him, must abide by the effects of that credit, and will

be bound by contracts made with innocent third persons, in the

seeming course of that employment, and on the faith of that credit,

whether the employer intended to authorize them or not; {k) since,

where one of two innocent persons must suffer by the fraud of a

third, he who enabled that third person to commit the fraud should

be the sufferer. {I) On this principle it is, as we have seen in the

first chapter, that one partner can bind another to contracts within

the scope of the partnership business ; the same principle is well