С НА Р. XII.

CONTRACTS OF LABOUR.

COMMISSION S.

WHOEVER undertakes another man's bufi

ness makes it his own, that is, promises to employ the fame care, attention, and diligence, that he would do if it were actually his own; for he knows that the bufinefs was committed to him with that expectation. And he promises nothing more than this. Therefore an agent is not obliged to wait, inquire, folicit, ride about the country, toil, or ftudy, whilft there remains a poffibility of benefiting his employer. If he exert fo much of his activity, and ufe fuch caution, as the value of the business, in his judgment, deferves, that is, as he would have thought fufficient, if the fame intereft of his own had been at ftake, he has difcharged his duty, although it fhould afterwards turn out, that by more activity and longer perfeverance, he might have concluded the business with greater advantage.

This rule defines the duty of factors, ftewards, attornies, advocates.

One of the chief difficulties of an agent's fituation is, to know how far he may depart from his inftructions, when, from fome change or difcovery in the circumftances of his commiffion, he fees reafon to believe that his employer, if he were prefent, would alter his intention. The latitude allowed to agents in this refpect will be different, according as the commiffion was confidential or minifterial; and according as the general rule and nature of the fer

vice require a prompt and precife obedience to orders, or not. An attorney fent to treat for an eftate, if he found out a flaw in the title, would defift from propofing the price he was directed to propofe; and very properly. On the other hand, if the commander in chief of an army detach an officer under him upon a particular fervice, which fervice turns out more difficult, or lefs expedient, than was fuppofed, in fo much that the officer is convinced that his commander, if he were acquainted with the true ftate in which the affair is found, would recall his orders, yet muft this officer, if he cannot wait for fresh directions, without prejudice to the expedition he is fent upon, pursue, at all hazards, thofe which he brought out with him.

What is trufted to an agent, may be loft or damaged in his hands by misfortune. An agent who acts without pay is clearly not answerable for the lofs; for, if he gives his labour for nothing, it cannot be prefumed, that he gave alfo fecurity for the fuccefs of it. If the agent be hired to the bufinefs, the question will depend upon the apprehenfion of the parties at the time of making the contract; which apprehenfion of theirs must be collected chiefly from cuftom, by which probably it was guided. Whether a public carrier ought to account for goods fent by him; the owner or master of a ship for the cargo; the poft-office for letters, or bills inclofed in letters, where the lofs is not imputed to any fault or neglect of theirs; are questions of this fort. Any expreffion, which by implication amounts to a promife, will be binding upon the agent, without cuftom; as where the proprietors of a stage-coach advertise, that they will not be accountable for money, plate, or jewels, this makes them accountable for every thing else; or where the price is too much for the labour, part of it may be confidered as a premium for infurance. On the other hand, any caution on the part

of

of the owner to guard against danger, is evident that he confiders the risk to be his; as cutting a bank bill in two, to fend by the poft at different times.

Univerfally unless a promife, either exprefs or tacit, can be proved against the agent, the lofs must fall upon the owner.

The agent may be a fufferer in his own person or property by the bufinefs which he undertakes; as where one goes a journey for another, and lames his horse, or hurt himself, by a fall upon the road; can the agent in fuch cafe claim a compenfation for the misfortune? Unless the fame be provided for by exprefs ftipulation, the agent is not entitled to any compenfation from his employer on that account for where the danger is not foreseen, there can be no reafon to believe, that the employer engaged to indemnify the agent against it; much less where it is forefeen: for whoever knowingly undertakes a dangerous employment, in common conftruction takes upon himself the danger and the confequences; as where a fireman undertakes for a reward to rescue a box of writings from the flames; or a failor to bring off a paffenger from a ship in a ftorm.

CHAP.

СНАР. XIII.

CONTRACTS OF LABOU R.

I

PARTNERSHIP.

KNOW nothing upon the fubject of partnership that requires explanation, but in what manner the profits are to be divided, where one partner contributes money, and the other labour; which is a common cafe.

Rule. From the flock of the partnership deduct the fum advanced, and divide the remainder between the monied partner and the labouring partner, in the proportion of the intereft of the money to the wages of the labour, allowing fuch a rate of intereft as money might be borrowed for upon the fame fecurity, and fuch wages as a journeyman would require for the fame labour and trust.

Example. A advances a thousand pounds, but knows nothing of the bufinefs; B produces no money, but has been brought up to the bufinefs, and undertakes to conduct it. At the end of the year the ftock and the effects of the partnership amount to twelve hundred pounds; confequently there are two hundred pounds to be divided. Now nobody would lend money upon the event of the business fucceding, which is A's fecurity, under fix per cent.-Therefore A must be allowed fixty pounds for the intereft of his money. B, before he engaged in the partnership, earned thirty pounds a year in the fame employment; his labour therefore ought to be valued at thirty pounds; and the two hundred pounds

muft

propor

must be divided between the partners, in the tion of fixty to thirty: that is, A muft receive one hundred and thirty-three pounds fix fhillings and eight-pence, and B'fixty-fix pounds thirteen fhillings and four-pence.

If there be nothing gained, A lofes his intereft, and B his labour, which is right. If the original stock be diminished, by this rule B lofes only his labour as before; whereas A lofes his intereft, and part of the principal: for which eventual difadvantage A is compenfated, by having the intereft of his money computed at fix per cent, in the divifion of the profits, when there are any.

It is true, that the divifion of the profit is feldom forgotten in the conftitution of the partnerfhip; and is therefore commonly fettled by exprefs agreement: but these agreements, to be equitable, fhould pursue the principle of the rule here laid down.

All the partners are bound by what any one of them does in the courfe of the bufinefs; for quoad hoc, each partner is confidered as an authorized agent for the reft.

CHAP.