§§ 263 to 274. (Agency, Secs. 79 to 90.)

(Note: It does not seem feasible to give cases in this connection. See Sections 79 to 90 in Agency, Commercial Law Series. For cases in regard to auctions see Sales. The following case defining and distinguishing between factors and brokers is given.)

Case 258. Turner v. Crompton, 21 North Dakota, 294.

"The true definition of a broker seems to be that he is an agent employed to make bargains and contracts between other persons in matters of trade, commerce, or navigation for a compensation commonly called brokerage. Or, to use the brief but expressive language of an eminent judge, ‘a broker is one who makes a bargain for another and receives a commission for so doing.' Properly speaking, a broker is a mere negotiator between the other parties, and he never acts in his own name but in the names of those who employ him. Where he is employed to buy or to sell goods, he is not intrusted with the custody or possession of them, and is not au

thorized to buy or to sell them in his own name. He is strictly, therefore, a middleman or intermediate negotiator between the parties." Story, Agency, ¶ 28. Again a broker is defined as 'one whose occupation it is to bring parties together to bargain, or to bargain for them, in matters of trade, commerce, or navigation; he is essentially a middleman or go-between.' Mechem, Agency, 13. 'He (a broker) differs from a factor also, in that he does not ordinarily have the possession of the property which he may be employed to sell, and that his contracts are always made in the name of his employer. As will be seen, he is primarily the agent for the first person who employs him, and he cannot, without the full and free consent of both, be throughout the transaction the agent of both parties.' Mechem, Agency, ¶927. Again: 'Brokers are agents who are engaged to negotiate contracts for other persons relative to property, with the custody of which they have no concern. He is a mere negotiator between the other parties. It is the duty of a broker to bring the contracting parties together for the purpose of making a contract, or he may, if so authorized, make the contract for them. Merchandise brokers are those who negotiate the sale of merchandise without having the possession or control of it as factors have.' Reinhard, Agency,

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21. The features which mainly distinguish a factor from a broker are: The former is intrusted with the possession, disposal, and control of the property, and may sell it in his own name and bind the principal; the broker is, strictly speaking, a middleman, or intermediate negotiator between the parties, and is not in the fiduciary relation of an agent to his principal, but must favor neither the one nor the other of the parties between whom he effects a transaction.' 19 Cyc. Law & Proc. p. 116.

The foregoing definitions are but illustrative of every definition of the term 'broker,' which term is not defined by our statute.

A 'factor' is defined by our statute as follows (Rev.

Codes 1905): Section 5801: 'A factor is an agent who is employed to buy or sell property in his own name, and who is intrusted by his principal with the possession thereof, as defined in ¶ 5582.' །

"Section 5582. A factor is an agent who, in the pursuit of an independent calling, is employed by another to sell property for him, and is vested by the latter with the possession or control of the property, or authorized to receive payment therefor from the purchaser?

It will be noticed the two sections together as quoted constitute the statutory definition of factor, and that a factor may buy as well as sell property the subject of the agency. But, in the absence of a statute as broad as ours declaring that a factor may buy as well as sell property, the courts have held the term 'factor' to apply to a purchasing agent, as well as to one employed to sell property. Price v. Wisconsin M. & F. Ins. Co., 43 Wis. 267, in an opinion by Chief Justice Ryan, to the effect that 'a factor is an agent to buy or to sell.' A factor may buy and sell in his own name as well as in the name of his principal; a factor buying goods for his principal in his own name is personally liable for the price. Story, Agency, 110. To the same effect is McGraft v. Rugee, 60 Wis. 406, 50 Am. Rep. 378, 19 N. W. 530, and Beardsley v. Schmidt, 120 Wis. 405, 102 Am. St. Rep. 991, 98 N. W. 325."

Question 258: Define a broker, a factor. In what respects does the factor differ from the broker?

PART IV

TERMINATION OF RELATIONSHIP

Chapter 34. Termination by Act of Parties.
Chapter 35. Termination by Operation of Law.

CHAPTER 34

TERMINATION BY ACT OF PARTIES

§ 275. By terms of original agreement.

§ 276. By accomplishment of object.

§ 277. Revocation by act of principal.

§ 278. Irrevocable agencies.

§ 279. When principal has right to revoke.

§ 280. Termination by agent.

§ 281. Notice of revocation to agent.

§ 282. Notice to third persons.

§ § 275, 276. (Agency, Sec. 91, 92.) By terms of original agreement and accomplishment of object.

(Note: The agreement being carried out, the agency ends, unless continued by further agreement.)

§ 277. (Agency, Sec. 92.) Revocation by act of

principal.

(Note: A principal has a power to revoke, even though he has no right, except the agency is coupled with an interest. See next section, and case thereunder.)

§ 278. (Agency, Sec. 94.) Irrevocable agencies.

Case 259. Chambers v. Seay, 73 Ala. 372.
Facts: The facts are stated in the opinion.

Point Involved: That powers coupled with an interest or to effectuate a security are irrevocable. To inquire: Whether the power in this case was such a power.

SOMERVILLE, J.: "The main contention in this case involves the right of the principal to revoke the agent's authority to sell, so as to deprive the latter of his commissions.

"The agreement, which is the basis of this suit, is in writing, bearing date February 28, 1878, and is signed by both the plaintiff and defendant. Its substance is briefly as follows: Seay was the owner of a tract of land in Talladega county, valuable for the quantity of iron ore it was known to contain. He placed this land in the hands of Chambers for sale, subject to Seay's ratification, if he (Seay) should 'deem the price to be paid for said property sufficient to warrant a sale.' Chambers, on his part, agreed to undertake the sale of the land, and to this end undertook and promised to transport specimens of ore taken from it to Birmingham, England, for inspection there; and also to advertise the property in one respectable paper in each of the cities of Birmingham and London, England. By way of compensation for his services and expenses, it was stipulated that Chambers should receive 'an undivided onefourth interest in the proceeds of sale when sold as aforesaid,' and his right to sell was made 'exclusive.'

"The evidence tends to show that Seay revoked the agency of Chambers in January, 1880, and very soon afterwards himself sold the property to one Glidden for the sum of twenty thousand dollars. The circuit court charged the jury, that the agreement in question was a mere revocable agency, which could be recalled by the principal, Seay, at any time before it had been executed by his making a sale of the property; and if it was so revoked prior to the sale made by Seay to Glidden, then Chambers was not entitled to recover any commissions.

"The rule is not denied, that, in ordinary cases, a principal, who has empowered an agent to sell, may at any time before sale revoke the agent's authority. It is equally true that the usual theory of commissions is, that the agent is to receive them only in the event of success. Wood's Mayne on Damages (Amer. Ed.), §§ 746-474.