It in cases where such enforcement would be in direct viola-

tion of the agent's duty as a fiduciary. For example, if a

principal directs his agent to collect a debt and to apply it

first to the payment of certain demands due to third persons,

and then to the payment of a mortgage held by the agent, but

the agent collects the debt and applies it all to the payment

of his own claim, the principal may recover the sum collected

by the agent, and ai)iilicable to tlie ])ayinent of the third per-

sons' claims, since the agent has acted in breach of his special

trust.^

(4) Dt'Uverij of propertjj and profits. The agent must deliver

to the ])rincipal, ujion demand, all the proj)erty of the i)riiici-

pal in his iiands, all proceeds of pro))erty disposed of, aud all

profits accruing from the agency." The agent cannot, without

the consent of his principal, make for himself any jiei'sonal

1 Makepeace v. Rogers, 4 De G. J. & S. 649 ; Marvin v. Brooks, 91 N. Y.

71 ; Warren v. Holbrook, 95 Mich. 185; Rippe v. Stogdill, 61 Wis. ;38.

2 Langdell, 3 Harv. Law Rev. 237; ante, В§ 76.

8 Padwick v. Stanley, 9 Hare, 627.

* Williamson v. Barbour, 9 Ch. Div. 520.

* Teed c Beere, 28 L. J. Ch. 7S2 ; Biirdick r. Garrirk, L. R. 5 Ch.

233 ; Jett v. Hempstead, 25 Ark. •162 ; Mundeville v. Welch, 5 Wheat.

(U. S.) 277.

6 Tagg V. Bowman, 108 Pa. St. 273.

^ Topham v. Braddick, 1 Taunt. 572 ; Crosskey v. Mills, 1 C. M. &

R. 298.

OBLIGATIONS OF AGENT. 115

profits in the conduct of the principal's business. He must,

accordingly, pay over to his principal all such profits made in

the course of the agency .^ This rule is applicable, even in

cases where the agent took the risk of loss,^ or the principal

suffered no injury.^ No secret profits, or profits made in

breach of the trust, are permitted to remain in the hands of

the agent. If the agent receives a bribe, he must pay it over

to his principal.*

В§ 92. (V.) Delegation of authority: appointment of sub-agents.

In all matters involving judgment, skill, or discretion, it is

the duty of an agent to act in person unless he has the express

or implied authority of his principal to employ su])-agents.

No agent can without such permission from his principal

delegate his discretionary authority. Delegatus non jjotest

delegare is the maxim, and is founded upon the confidential

character of the relation.^

The doctrine involves, however, three quite distinct con-

siderations : first, the delegation to a deputy of the perform-

ance of mechanical or ministerial acts in execution of the plan

determined upon by the agent ; seco7id, the delegation to a sub-

agent of some discretionary power without seeking to create any

privity between such sub-agent and the principal ; third, the ap-

pointment of a second agent as the agent of the principal, and

therefore in privity with him. The first case lias to do with the

delegation of non-discretionary duties ; the second, with tlie

delegation of discretionary duties ; the third, with the perform-

ance of the duty or power to employ agents for the principal.

In the first two cases the agent is acting for himself in employ-

1 Parker v. McKenna, L. R. 10 Ch. 96; De Bussche v. Alt, 8 Ch. Div.

286; In re North Australian Territory Co., 1892, 1 Ch. D. 322; Eldridge

V. Walker, 60 111. 230; Button v. VVillner, 52 N. Y. 312; Bunker v. Miles,

30 Me. 431.

2 Williams ;;. Stevens, L. R. 1 P. C. 352.

3 Parker v. McKenna, supra.

* Mayor v. Lever, 1891, 1 Q. B. 168.

6 Combe's Case, 9 Co. R. 75; Blore v. Sutton, 3 Meriv. 267; Catlin v.

Bell, 4 Camp. 183; Cockran v. Irlam, 2 M. & S. 301 ; Campbell v. Reeves,

3 Head (Tenn.), 226 ; Loomis v. Simpson, 13 Iowa, 532.

116 PRINCIPAL AND AGENT.

ing his assistants ; in the third case lie is acting for his j)rincipal

in employing them. In neither of the first two cases can

tliere be any privity between the sub-agents and the ])rincipal,

and the sole question is, had the agent any authority to act

through such sub-agents, or should he have acted in person ?

In the third case the sole question is, was the agent vested

with authority to engage agents for liis principal, or was it

intended eitlier that he should act in person, or should employ

for himself such additional assistants as he might need ?

В§ 93. Same : (1) delegation of non-discretiouary duties.

AVhere the particular act to be done is purely ministerial or

non-discretionary, involving no act of deliberation or judg-

ment, the agent may employ a deputy or assistant to perform

the act ; and where the general act to be done is one involving

discretion, and the agent, having exercised the discretion, has

still to perform in execution of his determined purpose a

particular act, ministerial or non-discretionary in character,

lie may employ a deputy or assistant to perform such minis-

terial act.i Thus, if an agent is invested with discretion to

make commercial paper, he may, after having exercised this

discretion, and determined upon the making of the paper,

delegate to a sub-agent the performance of the mechanical act

of writing and subscribing the papcr.^ The same is true of

other contracts, as insurance policies,^ or bills of lading.*

В§ 94. Same : (2) delegation of discretionary duties.

Some contracts are assignable, and some are non-assignable.

None are assignable in which there is an element of conlidcnce

1 jNIason r. Joseph, 1 Smith, 406; Rossiter r. Trafalgar Life Assurance

Co., 27 Beav. .377; St. IMargaret'.s Burial Board v. Thomp.son, L. R.

6 C. P. 445; Williams v. Woods, 10 Md. 220; Reuwick r. Bancroft, 56

Iowa, .")27; Eggleston v. Boardman, ^7 Mich. 14.

2 Ex parte Sutton, 2 Cox, 84; Commercial Bank v. Norton, 1 Hill

(N. Y.), 501; Sayre v. Nichols, 7 Cal. .535.

3 Rossiter v. Trafalgar Assurance Co., 27 Beav. 377; Grady v. Ameri-

can Cent. Ins. Co., 60 Mo. 116.

* Newell c. Smith, 49 Yt. 255.

OBLIGATIONS OF AGENT. 117

or trust in the skill,credit, character, or discretion of another.^

Agency is peculiarly a relation of trust and confidence, and

hence the rule is strict that an agent cannot delegate to

another the exercise of the judgment and discretion which

he has undertaken personally to place at the service of his

principal.^ Accordingly an agent employed to buy or sell

property for his principal cannot delegate to another the

duty of buying or selling, because the principal contracts for

the judgment and discretion of the agent himself.^ Nor

an attorney engaged to conduct a litigation.'^ Nor any other

fiduciary.^