If the loss is due to the agent's own negligence or default

he cannot recover indemnity.^

В§ 86. Non-assignability of obligations or rights.

The rule of law is strict that no one can assign his obliga-

tions.* Accordingly the principal cannot assign to a third

person the obligations which by his contract he undertakes

toward his agent. On the other hand the general rule is that

rights or benefits under a contract may be assigned.^ Yet an

exception occurs in the case of agency. A principal cannot

assign his rights to the services of the agent, since the agent

is not bound to assume a fiduciary relation toward the assignee

or consent to be governed by the latter.^ It follows that a

principal can assign neither his rights nor his obligations

under the contract of agency. He may with the consent of

the agent or servant transfer the services to another, so as to

make that other temporarily the principal or master.'

1 Harvey v. IMerrill, 150 Mass. 1 ; Molir v. Miesen, 47 Minn. 228.

2 Coventry v. Barton, 17 Johns. (N. Y.) 142.

3 Capp V. Tophara, 6 East, 392 ; Duncan v. Hill, L. R. 8 Ex. 242

See Hartas v. Ribbons, 22 Q. B. D. 254.

в– 1 Post, В§ 94.

5 Huffcut's Anson on Cont. Ft. III. Ch. ii.

6 lUd. ; Hayes r. Willio, 4 Daly (N. Y. C. P.), 259.

7 Post, В§ 228 et seq.

106 riUNCIPAL AND AGENT.

CHAPTER VIIL

OBLIGATIONS OF AGENT TO PRINCIPAL.

1. Ajenta by Contract.

В§ 87. Statement of obligations. .

An agent may act for a reward, tliat is, for a valuable consid-

eration, or he may act gratuitously. If he acts fur reward, ho

is under contract and must perform the undertaking or pay

damages. If he enters into an undertaking gratuitously, he is

not bound to perform.^ We deal first with the obligations of

agents who undertake to act for a valuable consideration.

The obligations of the agent to the principal are in the main

, as follows : —

^>ut^a-В«- 1. The duty to obey the instructions of the principal.

^yj^Ax<.<<- 2. The duty to exercise the skill, judgment, and care neces-

sary to the ])rudent discharge of the agency.

^io^>- 3. The duty to act with the highest good faith in the

management of the principal's interests.

<-J^K. :., 4. The duty to account fully for all the proceeds and profits

of the agency.

L^. -^ 5. The duty to act in person, except where autliorized by

v^ his principal or by custom to act through sub-agents.

В§ 88. (I.) Obedience.

Agency is a means of expressing the will of the principal.

The agent contracts that he will serve as the means to that

end, and the measure of his obedience is his conformity to the

dominant will. So long as the agent correctly carries out

the will of his principal he is protected, but if he fails to be

directed by it, and loss ensues, he becomes liable for the

1 Post, в§ 97.

OBLIGATIONS OF AGENT. 107

deviation.^ It is no answer even that he used reasonable care

and diligence in the course he pursued ; he pursues it at his

own risk since it is contrary to his instructions, and it is not

for him to judge of the reasonableness of such instructions.^

Thus where the principal directed the agent to return a draft

at once if it was not paid, but the agent held the draft in

order to give the drawee an opportunity to communicate with

the drawer, and loss ensued, the agent was held liable for the

loss.3 So where an agent is directed by his principal to send

a claim for collection to A, but sends it to B, and loss ensues,

the agent is liable, and it is no defence that he acted prudently