Seven leading implied contracts are : Ist. Quantum meruit for services rendered without agreement as to price.

2d. Quantum valebant, where goods are sold and the price not fixed.

3d. Money lent.

4th. Money paid to the use of the defendant.

5th. Money had and received. This action may be brought in cases where it would be contrary to conscience and justice for one to retain the money of another, such as where money is paid under a mistake of fact, or is obtained through extortion or oppression, or by duress and the like. It would not include cases where a payment was voluntary; that would be supposed to be substantially a gift. This doctrine is comparatively recent, and was imported into the common law from the principles of equity jurisprudence.

6th. Account Stated. This is a case where parties have looked into their accounts and come to a common view that one owes the other so much money; out of this will spring an implied promise to pay the money.

7th. One more may be added, growing out of the letting of land where there is no express promise to pay a particular amount of rent, or perhaps the rent is due. Then the landlord may proceed upon an implied promise called for use and occupation.

Bond, obligation, covenant, agreement, contract, promise. The first three words. refer to sealed instruments. Any instrument for the payment of money or for the

performance of an act with a seal attached is a bond. The word obligation as a technical word also frequently means an instrument under seal, but is not so well defined as a bond. It is more general. A covenant is a single promise in a sealed instrument. There may be a series of covenants in one instrument; for example, in a deed for the conveyance of land there are frequently six covenants.

The other three words are appropriated to simple contracts and promises. The word promise is the most generic word and may even be applied to engagements without consideration or wholly on one side, sometimes called unilateral promises. The words contract and agreement are substantially the same in meaning and imply mutual promises or a consideration. Therefore, to make the word promise equivalent to contract, we must put before it the word mutal or some other term indicative of consideration.

CHAPTER III. AGENTS.

The most important aspect in which a general agent may be regarded is not his authority to act merely for the particular principal in question, but the fact that he follows a line of business which embraces the act under consideration. Thus, with the consent of his principal, he holds himself out to the community as being ready to do a class of acts of a particular kind, and these are commonly attended with commercial or trade usages. There are many well-known agencies of this kind; examples are, cashiers and tellers of banks, auctioneers, factors, brokers of

various sorts known as cotton, grain, sugar and insurance brokers and the like. Now, in all these cases there are usages of the business, and any third person dealing with the agent may fairly assume that he has the power accorded to him by the usage, unless such third person has notice to the contrary. Accordingly, if the agent violates special instructions in opposition to the usage, the principal will still be liable to the third person acting in good faith, and the remedy of the principal will be against his agent for his misconduct. This proposition has no application to special agents. The principal in that case is only bound by the authority given to him, the agent.

In applying these statements already made, an important case has arisen in regard to the power of a transfer agent of a corporation to bind his company by fictitious transfers of stock. N. Y. & N. Haven Ry. vs. Schuyler, 34 N. Y., 30. In this case the court of appeals held that when the transfer agent, having the power to issue genuine certificates, in fact issued those that were fictitious to persons acting in good faith, the railroad company was responsible in damages and that its remedy was against its agent. This rule, however, in not universally adopted, and is disapproved in England. See the 18 Q. B. Div., 718.

is adopted by the United States Supreme Court. See 105 U. S., 7; also 122 U. S., 79. On the other hand a number of the State Courts, including New York, hold that this case is substantially the same as the Schuyler case above referred to, and the owner is liable. See 65 N. Y., III; also 106 N. Y., 199, where the court says the rule is settled in New York. 108 Penn. St., 529-544.

Brady vs. Todd, 9 Common Bench N. S., 99, discusses the question how far a power to sell authorizes power to warrant the quality of the goods sold.

Section VII. The liability of an undisclosed principal to a contract is discussed in Thompson vs. Davenport, Addison vs. Gandasequi, Patterson vs. Gandasequi, z Smith's Leading Cases, 342-384; 198-228, marginal paging.

Section VIII. Powers in reference to revocation are divisible into two classes, naked powers and those that are coupled with an interest. A naked power is a mere authority, A power coupled with an interest is one where the attorney has some ownership in or claim upon the subject in respect to which the power is to be exercised, such as a mortage on the thing or a pledge. The main object in such a case is to enable a creditor to realize the amount secured by the mortgage or pledge. A leading case on this subject is Hunt vs. Rousmanier, 8 Wheaton, 201. In this case a creditor on loaning money, took a power of attorney authorizing him to sell the debtor's interest in certain ships to reimburse himself.

This was done under legal advice as being more desirable than a mortagage. The debtor died. The court held that the power was revoked. The creditor thereupon asked relief in a Court of Equity to have the power of attorney

converted into a mortgage. The court denied this application on the ground that his mistake was as to a rule of law which the court could not correct. I Peters, 119, same case.

Section X. There are two theories concerning notice to an agent as being equivalent to notice to the principal. One is that it must be given in the very transaction in which the principal is sought to be charged with notice. The other is that it will be enough if the agent had it present to his mind, though he gained the information in some prior transaction, and even though that prior transaction was with a stranger.

The leading case in England on the first doctrine is Warrick vs. Warrick, 3 Atkyns, 291. This view prevailed a long time-until it was qualified by the later case of Dresser vs. Norwood' 17 C. B. N. S., 466. This case adopts the other theory.

The courts of New York and a number of the American States still adhere to the old doctrine in Warrick vs. Warrick. See 2 Hill, 452; there are cases to the same effect in Pennsylvania and Illinois. The Supreme Court of the United States adopts the later view of Dresser vs. Norwood in 11 Wallace, 356-366.

Section XII. Money paid under compulsion to an agent. In general in order to recover back such money two things are necessary: Ist, that the payment should have been obtained involuntarily, e. g., by extortion, or duress of goods. This would be necessary whether the action was brought against the principal or agent; zd, in order to sue the agent there must be a so-called protest or notice, the object being to prevent him from paying it over to his principal and relieving himself from suit. This becomes a very important matter in case of duties due the

United States on imported goods. The form of protest in this case is regulated by statute. U. S. Revised Statutes, Sec. 2931-2932 and 3010, 3011, 3012. Under these rules, if one should voluntarily pay a tax to the Government, being under no duress. he could not recover it back.

Section XIII. There is an important class of cases where a note is left by a depositor in his bank for collection, it may be at a distant point, and such bank employs another bank to collect, and this second bank in the series employs a notary public to do the acts incidental to collection, and these he fails to do through negligence, whereby the depositor is injured. The better opinion here is that the first bank. though acting gratuitously, is an agent of the owner of the note and liable for negligence and also for the acts of the notary, who is to be regarded as a sub-agent, and not as acting as a public officer. This subject is carefully considered in Allen vs. Merchants' Bank, 22 Wend., 214.

CHAPTER IV. FACTORS AND BROKERS.

Section III. The powers of a factor when there is no express agreement limiting his authority, are conferred by usage. Commercial usage gives him a power to sell but no implied power to pledge. A pledge made even to a lender of money, acting in good faith on the supposition that the factor is owner will, according to an early case (Paterson vs. Tash), be of no legal effect so as to bind the owner. This rule is a serious restriction upon trade, and is remedied in England by several statutes. 4 Geo. IV., Chap. 83; enlarged by the 6 Geo. IV., Chap. 94 and again by 5 and 6 Vic., Chap. 39. The 3d section of 6 Geo., 4, is very important in this country. It provides for two distinct classes of cases. One where the factor

or other person has documentary evidence running in his name by the owner's consent, and the other where he is without this documentary evidence intrusted with the goods for the purposes of sale. It is the consent of the owner in every case that must confer the apparent title, and it is not really material whether the person in question be called factor or not. So a money lender who takes a bill of lading running to himself with the consent of the owner of the goods has the legal title, while the ultimate owner has a title subject to the right of the money lender. This is brought out in 61 N. Y., 298, followed up by 71 N. Y., 387. Accordingly, if the ultimate owner should in any surreptitious way withdraw the goods from the control of the money lender he could not defeat his superior title, not even by transfer to a third person acting in good faith. The result is that documentary evidence of title emanating from an owner is not only of great consequence in determining the right of the holder to sell to third persons, but also the right of the holder of it as against the person who gave the evi

dence of title.

FOREIGN AND DOMESTIC FACTORS.

By the phrase foreign factor is meant the case where the factor lives in one country and the principal in another. Accordingly, a factor in New York, acting for a person in Liverpool, England, and dealing with a New York merchant, would be a foreign factor. The point then arises whether this foreign factor has the same power by implication to pledge the credit of his principal as a domestic factor would have. Cases on this subject are quite contradictory. The latest expression of opinion is that the foreign factor must have express authority to pledge the credit of his foreign principal, otherwise the

agent is alone liable. Armstrong vs. Stokes, Eng. L. R., 7 Q. B.., 605. In any event a person acting in one of the States of the Union for a principal residing in another State is not a foreign factor in this sense. Kirkpatrick vs. Stainer, 22 Wend., 244, where cases are explained.

The position of a factor who makes advances on goods of principal should be noticed. In this case the factor holds a double position. double position. In his relation of factor simply he is bound to follow the instructions of his principal. In making advances he is a creditor, and has a right to sell to reimburse himself. A difficult question arises as to his right to sell in opposition to the instructions of his principal. The leading case in the U. S. Supreme Court is Brown vs. McGranu, 14 Peters, 495, holding that the factor may sell in such a case in opposition to instructions, while the New York Court holds that the factor must first relieve himself of his duties of agent, by giving notice to his principal to repay the advances, and conceding to him a reasonable time in which to do so. If he sells in opposition to this rule he is liable to the principal. This doctrine is held in Marfield vs. Goodhue, 3 N. Y., 62. The doctrine of this case is reiterated in Hilton vs.

Vanderbilt, 82 N. Y., 591. The factor might, however, obtain from the principal express authority to sell without notice, in which case he would be protected.

The right of a broker to claim commis: sions is considered in 83 N. Y., 378, where a number of cases are reviewed.

Chapter V. In the law of servants, particularly of carriers, e. g., railroads, the liability of the carrier for the conduct of a servant to a passenger is quite different from that which prevails towards a mere stranger. Their contract with the passen

ger implies that they are to be treated with civility. Accordingly, the employer may be liable for acts of incivility and impropriety on the part of a servant, though such acts are wilful and dictated by malice. This distinction was lost sight of in Isaacs vs. Third Avenue Railway, 47 N. Y., 122, but that case was overruled in 90 N. Y., 594, where the distinction is stated.

The implied power of attorney to compromise a claim is recognized in England though not in general in this country. Late case is case of Matthews, L. R., 2 Q. B. Div., 141. The proper way, according to English cases, is for client, if he does not desire to confer on his attorney, etc., this implied power, to withdraw the authority to act as counsel or attorney. This principle is not generally recognized in the United States.

Chapter VII. A public officer is liable for negligence in the performance of duties to a private individual who is injured. Adsit vs. Brady, 4 Hill, 630. This was applied to the case of a canal commissioner in 47 N. Y., 665; also see 94 N. Y., 302, to the same effect.

Chapter VIII. It is a general rule of law that an action for a wrong and in particular for a personal wrong dies with the person; the meaning of which is that it does not pass to an executor. The rule applies both to the right to sue and the liability to be sued. An exception to this An exception to this rule is that if the wrong doer has profited by the wrong in a pecuniary way, an action will lie against his executors. This point is considered in Phillips vs. Pomfret, L. R., 24 Ch. Div., 439. Another form of statement is that the administrator or executor represents the property and estate of the testator, but not the person. He also represents his debts. See pages 456

and 7 of the same case. This subject is generally in this country affected to some extent by local statutes, which must be sought in the various statute books.

Chapter X. The peculiarity of a corporation is that it is created by law, by a special or general statute. It then becomes a juristic person; while a partnership is conceived of only as a collection of individuals. So, a corporation can be sued in its corporate name; a partnership only by the names of its members. A judgment against a corporation, therefore, binds only the corporation.

The doctrine of ultra vires is discussed in 118 U. S., 256, where a distinction is pointed out between actions arising on contracts made by a corporation in excess of its powers, and the case of actions for injuries caused by the wrongful acts of their agents in the course of their employment and in excess of their powers. In the latter case the corporation would be responsible. So in the former case they might be when the carrying forward of the contract which was ultra vires caused injury to the other party. Brice on Ultra vires is an important work on this subject.

Clubs are of comparatively recent origin, and sometimes they are incorporated and at other times not. It is not necessary now to speak of an incorporated club, since it is governed by its charter and the general law of corporations. An unincorporated club is a mere voluntary society. It may be either with or without property. In case there is no property it is within the power of the members to establish such rules of discipline as they may see fit. When a question of expulsion arises and there are no special rules, a member may be expelled by vote of a majority. But rules of natural justice must be followed, and give