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must this officer, if he cannot wait for fresh directions, without prejudice to the expedition he is sent upon, pursue, at all hazards, those which he brought out with him.
What is trusted 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 loss; for, if he give his labour for nothing, it cannot be presumed, that he gave also security for the success of it. If the agent be hired to the business, the question will depend upon the apprehension of the parties at the time of making the contract ; which apprehension of theirs must be collected chiefly from custom, 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 post-office for letters, or bills inclosed in letters, where the loss is not imputed to any fault or neglect of theirs ; are questions of this fort. Any expression, which by implication amounts to a promise, will be binding upon the agent, without custom ; 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 considered as a premium for insurance. On the other hand, any caution on the part of the owner to guard against danger, is evidence that he considers the risk to be his; as cutting a bank bill in two, to send by the post at different times.
Universally, unless a promise, either express or tacit, can be proved against the agent, the loss must fall upon the owner.
The agent may be a sufferer in his own person or property by the business which he undertakes; as where one goes a journey for another, and lames his horse, or is hurt himself, by a fall upon the road ; can the agent in such cafe claim a compensation for the misfortune ? Unless the fame be provided for by express ftipulation, the agent is not entitled to any compensation from his employer on that account: for where the danger is not foreseen, there can be no reason 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 construction takes upon himself the danger and the consequences; as where a fireman undertakes for a reward to rescue a box of writings from the flames ; or a sailor to bring off a passenger from a ship in a storm.
CH A P. XIII.
CONTRACTS OF LABOUR.
I KNOW nothing upon the subject of partI nership 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 case.
Rule. From the stock of the partnership deduct the sum advanced, and divide the remainder between the monied partner and the labouring partner, in the proportion of the interest of the money to the wages of the labour, allowing such a rate of interest as money might be borrowed for upon the same security, and such wages as a journeyman would require for the same labour and trust.
Example. A advances a thousand pounds, but knows nothing of the business; B produces
no money, but has been brought up to the business, and undertakes to conduct it. At the end of the year the stock and the effects of the partnership amount to twelve hundred pounds ; consequently there are two hundred pounds to be divided. Now nobody would lend money upon the event of the business succeeding, which is A's security, under fix per cent.--Therefore A must be allowed sixty pounds for the interest of his money. B, before he engaged in the partnerfhip, earned thirty pounds a year in the same employment; his labour therefore, ought to be valued at thirty pounds; and the two hundred pounds must be divided between the partners, in the proportion of sixty to thirty; that is, A must receive one hundred and thirty-three pounds six shillings and eight pence, and B fixtyfix pounds thirteen shillings and four pence.
If there be nothing gained, A loses his interest, and B his labour, which is right. If the original stock be diminished, by this rule B loses only his labour as before; whereas A loses his interest, and part of the principal: for which eventual disadvantage A is compensated, by having the interest of his money computed at fix per cent, in the division of the profits, when there is any. VOL. I. , N
It is true, that the division of the profit is feldom forgotten in the constitution of the partnerfhip; and is therefore commonly settled by express agreement : but these agreements, to be equitable, should pursue the principle of the rule here laid down.
All the partners are bound by what any one of them does in the course of the business; for, quoad boc, each partner is considered as an authorized agent for the rest. ·
CH A P.