109 Pa. St. 422; Daly V. Bank, 56 Mo. 94; First n. B. V. Sprague, 34

Neb. 318; Irwin v. Reeves Pulley Co., 20 Ind. App. 101, 43 N. E. GOl.

2 Ayrault V. Pacific Bank, 47 n. Y. 570 ; Bank V. Butler, 41 Oh. St.

519.

8 Dun V. City n. B., .58 Fed. Rep. 174, where it was held that one who

seeks through a commercial agency information as to the standing of a

person residing in a distant city, contemplates the employment of a sub-

agent at the place where the third person lives and becomes the principal

of such sub-agent, to whom, and not to the commercial agency, he nmst

look for damages for negligence or fraud.

* De Bussche v. Alt, 8 Ch. Div. 286; Barnard v. Coffin, 141 Mass. 37;

Bradstreet v. Everson, 72 Pa. St. 124; Cummins v. Heald, 24 Kans. 600.

^ OBLIGATIONS OF AGENT. 121

his agency.^ His powers and duties are, in general, of the

same nature and extent as those of an ordinary agent or

factor. The authorities do not agree, however, whether tlie

legal effect of his special undertaking is to make him a mere

surety for the vendee, or primarily liable for the proceeds of

the sale.2 In England, it has been held that he is merely a

surety ; that is to say, that he guarantees the solvency of the

vendee, and in case of default, undertakes, himself, to pay;^

but later cases clearly modify this.* In the United States, on

the other hand, it is generally held, that the del credere agent

i^jjrimarily liable for the proceeds of the goods sold, as for

goocTs sold to Tmn.^ The question becomes of importance,

under the provisions of the Statute of Frauds. If the del

credere agent be regarded as a mere surety, his contract is to

answer for the debt of another, and must therefore be in writ-

ing. But if he is himself absolutely liable in the first instance,

his undertaking is an original one, and not within the provi-

sions of the statute.^ So, too, if he Agrees to make advances

to his principal, and after making them seeks to prove against

the principal's bankrupt estate, it is held that he must first

exhaust the property in his hands, and prove only for a

balanced

It is sometimes difficult to determine whether a transaction

amounts to a sale between A and B or the creation of a del

credere agency. It is stated broadly that " the law implies a

mere consignment of goods for sale upon a del credere com-

mission, and not a sale thereof, where the contract provides

that the consignee shall receive them, and return periodically

1 Morris v. Cleasby, 4 M. & S. 566; Hornby v. Lacy, 6 M. & S. 166.

2 Lewis i'. Brehme, 33 Md. 412.

8 Morris v. Cleasby, 4 M. & S. 566; Hornby v. Lacy, 6 M. & S. 166.

* Couturier v. Hastie, 8 Ex. 40 ; Wickham v. Wickham, 2 Kay &

Johns. 478.

6 Lewis I'. Brehme, 33 Md. 412; Sherwood v. Stone, 14 X. Y. 267;

Swan V. NesmiLh, 7 Pick. (Mass.) 220; Wolff v. Koppel, 5 Hill (N. Y.),

458.

В® Sherwood v. Stone, supra ; Swan v. Nesmith, supra.

1 Gihon V. Stanton, 9 N, Y. 476; Balderston v. Rubber Co., 18 R. L

338. Compare Dolan v. Thompson, 126 Mass. 183.

122 riU-NXIPAL AND AGENT.

to the consignor the proceeds of the sales, at prices charged

by the hitter, the consignee guarantying payment thereof." '

2. Gratuitous Agents.

В§ 97. Obligations of gratuitous agents.

Tlie agent may nndertake to perform a service for the prin-

cipal gratuitously. In such case the promise, being witliout

consideration, is unenforceable, and the agent is not liable for

refusing or neglecting to perform.^ But if the agent enter

upon the performance of the undertaking he is bound to exer-

cise that degree of care and skill for which he undertakes.

The real question in such cases is, what amount of care did

the gratuitous agent nndertake to bestow in the transaction

committed to him? To this various answers have been re-

turned. Some say that he undertakes to use only slight care

and is therefore liable only for gross negligence.^ Others say

that he undertakes for as much care as he would bestow upon

his own affairs.* Still others add, that he must exercise such

skill as he possesses ;5 or, in case he holds himself out as

skilful in a particular calling, then such as might be reason-

ably expected from one so holding himself out;*' or, in case

he undertakes an act highly dangerous to human life and