LEWIS, C. J.: "The primary obligation of an agent, whose authority is limited by instructions, is to adhere faithfully to those instructions, in all cases to which they ought properly to apply: Story on Agency, 192. He is in general bound to obey the orders of his principal exactly, if they be imperative and not discretionary; and, in order to make it the duty of a factor to obey an order, it is not necessary that it should be given in the form of a command. The expression of a wish by the consignor may fairly be presumed to be an order: Story on Contracts, 359, Brown v. McGran, 14 Peters, 494. It is true that instructions may be disregarded in cases of extreme necessity arising from unforeseen emergencies, or if performance becomes impossible, or if they require a breach of law or morals: Story on Agency, 194. These are, however, exceptional cases. There may, perhaps, be others which have been sanctioned by adjudications, founded on the principle that the departure complained of was not material. But the general rule is as indicated in what has been said, and the case before the Court is not brought within any of the exceptions. To justify a departure from instructions, where a loss has resulted from such deviation, the case must be brought within some of the recognized exceptions. It is not sufficient that the deviation was not material if it appear that the party giving the instructions regarded them as material, unless it be shown affirmatively that the deviation in no manner contributed to the loss. * ** As between vendor

and vendee, the right of property and the consequent risk vests on delivery of the goods purchased to the designated carrier, packed, and directed according to usage or instructions. But if a different method of packing and directing, or a different carrier than the one designated, be adopted by the vendor, he assumes the risk in case of loss, unless it be shown that his deviation in no way contributed to the loss. Where the goods are stolen, how can this be shown? In sending banknotes by mail, it is manifest that while a large package. would attract the attention and care of honest agents.

on the route, it might tempt the cupidity of dishonest ones. The party who proposes to take the risk of this method of remittance has a right to weigh the advantages and disadvantages of the money to be remitted in notes of $100 or $50, the debtor has no right to increase the size of the package by remitting in notes of $10 or $5. There was error in permitting the jury to find that the departure from instructions was immaterial."

Question 223: (1) What did the Court hold in this case? (2) State the exceptions suggested by the Court which would justify a disregard of instructions.

(3) If the agent disregards instructions, is he liable for loss which was not caused thereby?

§ 222. (Agency, Sec. 38.)

Duty of agent to use care and skill.

Case 224. Whitney v. Martin, 88 N. Y. 535.

Facts: Suit to recover a sum of money invested by defendant's testator for plaintiff, in second mortgages, the property not being of sufficient value to satisfy the first mortgages. The deceased (whose executor is sued herein) was an attorney at law and the agent of the plaintiff and having money to invest for plaintiff invested the same in second mortgages in New York City.

Point Involved: Generally, of the duty of an agent to use care, prudence and skill. Specifically, the rule applied to the case of an attorney at law having money of his principal to invest who invests the same in second mortgages with scant security.

MILLER, J.: Although there was a contradiction in the testimony in regard to the testator's relation to the plaintiff, it was sufficient, nevertheless, to warrant the conclusion that the testator was intrusted by the plaintiff with making the loan, and the duty devolved upon him to see that the money was safely and securely invested. The responsibility of an agent or attorney under such circumstances is beyond dispute and the rule is well settled that the agent is not only bound to act in good faith, but to exercise reasonable diligence and such care and skill as is ordinarily possessed by

persons of common capacity engaged in the same business. (Here the Court reviews the evidence showing that the security was inadequate.) Loans under such circumstances are always hazardous and doubtful, and, while the attorney or agent may be exonerated, where the party had full knowledge of their existence and the value of the property, it would be a very unsafe rule to hold as a matter of law, that an agent would be justified without an understanding by the party of the true character of the prior encumbrance, under circumstances like these here presented.

"The right of an agent to advance funds on second mortgages or security not of the first class may well be questioned. (McQueen's Appeal Cases, 236.) And as a general rule it may properly be laid down that it is not prudent or safe to advance moneys on second mortgages where there are large prior encumbrance and especially where the personal security of the mortgagor is in any way precarious. Such an investment is not a first class one. * * * And as this case is presented upon the evidence, we are brought to the conclusion that the agent exceeded his authority and was chargeable with a want of proper care and skill in making the investment; and for this neglect he is legally liable for the loss sustained.

Question 224: (1) State the duty of an agent to exercise care, prudence and skill.

(2) Suppose in this case, the owner of the money had specifically directed the investment of the money in this particular security. Would the agent be liable on the failure of the investment?

(3) Suppose that the agent was not professional and was known to have no experience or skill in such matters and claimed Would this make any difference?

none.

§ 223. (Agency, Sec. 39.) Agent's duty of personal performance.

Case 225. Eldridge v. Holway, 18 Illinois, 445. Facts: Eldridge gave a power of attorney to Cobb appointing Cobb his attorney in fact to start suits in

forcible detainer against all persons unlawfully in possession of Eldridge's real estate in Chicago. Cobb for this purpose employed Kales, an attorney to serve a notice of demand upon the defendant Holway to quit possession of Eldridge's property, the notice being signed in Eldridge's name by Cobb as his attorney in fact. A suit for possession of the premises based upon this demand being subsequently instituted, Kales testified that he served the notice, to which the defendant objected upon the ground that under the power of attorney, Kales had no authority to serve the notice and therefore no notice had really been served upon him. The lower court upheld this contention. Plaintiff appeals.

Point Involved: What acts an agent must do personally, and what he may delegate to others to do for him.

SCATES, C. J.: "An attorney in fact of plaintiff employed an attorney at law in this case who served the written notice and demand of possession. The court excluded the evidence upon the ground that delegated authority cannot be delegated.

* * *

"This is true as a general principle, when properly applied to the classes of cases where personal confidence is reposed, and skill, judgment, etc., are involved. Story on Agency, Secs. 12, 13, 14. Some powers arise by implication as incidents to others, and are essential to their exercise. So, in the performance of a general or special agency, many acts are to be performed, of an indifferent nature, which may as well be done by one person as another, and which an agent might find it extremely inconvenient to be compelled to perform personally. The maxim withholding the power of subdelegation of authority only has place where there is an object, an end to be gained-where the interest of the principal may be neglected or injured by substitution. When from the nature of the act to be done, there can be no difference the principle cannot apply.

"Such is the case here. There is neither confidence,

skill, discretion or judgment required to deliver a written notice, and make oath of it which could prevent the employment of any one by an agent. The service of declarations in ejectment, notices to take depositions, and a great variety of acts now done by attorneys' clerks and others would fall under the same rule contended for, and compel attorneys to do such acts personally.

"An attorney may serve such notice and demand, and we perceive no reason why an agent to bring suit may not employ an attorney. Agents, as such, cannot appear in court for parties. Where agents are not licensed as attorneys, they must employ attorneys to appear for the client in the court.

"The act here falls strictly within a class which may be done by such supposed subdelegation. It is rather the true and only mode of acting out an agency where an attorney becomes necessary, than a subdelegation of power.

"Had the agency here been an attorney ship, it might present another question-one involving a question of confidence reposed, or skill and judgment-which could not be transferred. But the agency does not appear to be of that character.

"Judgment reversed and case remanded."

Question 225: (1) What is the meaning of the maxim "that which is delegated cannot be delegated."

(2) Under that rule may an agent appoint another to do any of the acts of agency? What ones?

(3) What was the act done by another than the agent in this case?

(4) Under what other theory than that of delegation did the court think the act in question might be supported?

§ 224. (Agency, Sec. 40.) Whether agent is selected to perform or to obtain agent to perform.

(Note: The thought here is this: One may be employed to do an act in which he may employ others to help him, but these others are his agents or employees, and their neglect or lack of skill are attributable to the agent. As where a lawyer personally