Voluntary primary obligations and their correlative rights.

Under the head of master and servant, wc treat of the breach

of such obligations and the substitution of secondary obliga-

tions and their correlative rights and remedies. Under both

heads, we seek to discover the source and extent of the repre-

sentative's authority, the rights and obligations of the consti-

tuent and representative, of the constituent and third persons,

and of the representative and third persons.

В§ 3. Distinction betvreen agency and other legal relations.

Before jjroceeding to a discussion of the essential i)roblems

of aginicy, it is necessary to distinguish this legal concept fi-oni

other concepts more or less nearly related to it. One person

may act in the interest of another without being technically

his agent or servant. In order, therefore, to delimit our subject,

Introduction. 7

we must first set aside and distinguish these analogous legal

relations.

(1) Agency or Trust. "The germ of agency is hardly to

be distinguished from the germ of another institution which

In our English law has an eventful future before it, the ' use,

trust, or confidence.' " ^ The two are now, of course, quite

distinct, and the distinction is found fundamentally in this,

that in agency the legal title and use of the property concerned

are in the principal and not the agent, while in trusts the legal

title is in the trustee and the use in the cestui. Accordingly,

agency is a topic of the common law, and trusts a topic of equity

jurisdiction. Yet for some purposes an agent is spoken of as

a quasi trustee, and is required to account in equity .^

(2) Agency or Partnership. It is sometimes difficult to

determine whether a contract creates the ordinary relation

of principal and agent or the special relation of partnership.

Even where parties unite in a joint enterprise and agree to

share the profits, a partnership does not necessarily result ;

the participation in profits is an element in the problem, but is

not decisive. It is a question of construction upon the whole

agreement, the intention of the parties being the controlling

consideration.'^ A partner is also an agent, but his agency is

of a special and peculiar character.*

(3) Agency or Sale. Whether the relation between the

parties is that of principal and agent, or vendor and vendee,

must depend upon the construction of the contract. A. agrees

to dispose of goods placed in his hands by B., and at periodical

intervals return an account to B. of the sales made, and turn

over to B. the value of the goods sold, at a fixed price, keeping

himself the difference between this price and the price at which

he has sold them. This might be a del credere agency,^ or a

sale as between A. and B. The construction to be placed on

1 2 Pollock and Maitland, Hist, of Eng. Law before Edw. I., p. 226.

2 Marvin v. Brooks, 9-1 N. Y. 71 ; Warren v. Holbrook, 95 Mich. 185;

cf. Uhlnian v. N. Y. Life Ins. Co., 109 N. Y. 421.

3 Grinton v. Strong, 148 111. 587 ; Wright v. Davidson, 13 Minn. 449.

* Burdick on Partnership, p. 159, 195.

6 Post, В§ 90.