1655. The contract of lease or hire of things is terminated in the manner common to obli- gations, as declared in the eighth chapter of the title Of Obligationa, in so far as the rules therein contained can be applied, and subject to the special rules contained in this tUle. [IL 91.] 1656. It is also terminated by rescission in the manner and for the causes declared in articles 1624 and 1641, and also in cases of insolvency of traders as provided in The Insolvent Act of 1864. [II. 91 : III. 383.] 1657. When the term of a lease is uncertain, or the lease is verbal, or presumed as pro- vided in article 1608, neither of the parties can Larminate it without giving notice to the other, with a delay of three months, if the rent be payable at terms of three o- more months ; if the rent be payable at terms of loss than three months, the delay is to bo regulated according to article 1642. — The whole nevertheless subject to that article and to articles 1608 and 1653.— Poth. Louage, n. 29 ; Guy. Bail, 16 j C. N. 1736. [IL 91.] 1658. The lease, if written, terminates of course, and with- out — ^*'cc, at the expiration of the term agreed upon. — Cod. 266 LEASE AND HIBE. L. 11, Do loo. et oond. ; Dom. 1. 1, t. 4, 8. 2, n. 11 ; Poth. Louage, n. 29, 308; 2 Bour. 43, n. 6 J C. L. 2698 j C. N. 1737. [II. 91.] 1659t The contract of lease or hire of things is terminated by the loss of the thing leased. —If. L. 25, S 2, L. 9, 9 1, loc. oond. ; Poth. Louage, n. 65 ; 2 Bour. 62, n. 1 J C. N. 1741. [II. 91.] 1660i If, during the lease, the thing be wholly destroyed by irresistible force, or a fortuitous event, or taken for {)urposes of public utility, the ease is dissolved of course. If the thing bo destroyed or taken in part only, the lessee may, according to circumstances, obtain a reduction of the rent or the dissolution of the lease ; but in oither case he has no claim for damages against the lessor.— ff. L. 19, § 6, L. 30, § 1, L, 15, § 7, L. 33, loc. cond., L. 23, Do rog. ju.; Dom. 1. 1, t. 4, 8. 3, n. 3 ; Poth. Louago, n. 139 - J C. L. 2667 j C. N. 1722. [II. 91.] 1661> The contract of lease or hire of things is not dis- solved by the death of the lessor or lessee. — flF. L. 60, § 1, L. 19, § 8, loo. cond. ; Cod. L. 10, De loc. et cond. j Poth. Louage, n. 59 ; 2 Bour. 41, n. 16 ; C. N. 1742. [II. 93.] 1662> The lessor cannot put an end to the lease, for the purpose of occupying him- self the premises leased, unless the right to do so has been expressly stipulated, [and in such case the lessor must give notice to the lessee according to the rulo3 contained in article 1657 and th^ articles therein referred to ; unless it is other- wise stipulated.] — C. S. L. C. c. 52 J C.N. 1761. [11.93.] 1663i [The lessee cannot, by reason of the alienation of the thing leased, be expelled before the expiration of the lease, by a person who bo- comes owner of the thing leased under a title derived from the lessor; unless the lease contains a special stipu- lation to that efifect and be re- gistered.— In such case liotice must be given 'to the lessee ac- cording to the rules contained in article 1657 and the articles therein referred to; unless it is otherwise specially agreed.] — ff. L. 25, § 1, loc. cond. ; Cod. L. 9, de loc. et cond. ; Dom. 1. 1, t. 4, s. 3, n. 4 ; Poth. Lou- age, n. 62, 101, 288, 289, 292, 293; C. N. 1743; C. 2128. [II. 93.1 !'"64. [The lessee who is exi ixcd under a stipulation to that effect is not entitled to re- cover damages, unless the right to do so is expressly reserved in the lease.] [II. 93.] 1665* When property sold subject to the right of redemp- tion is taken back by the seller, in the exercise of such right, the lease made by the buyer is thereby terminated and the lessee has his recourse for damages upon the buyer only. — Tr. Louage, n. 776, 777, & cit. [II. 93.] LEASE AND HIBK. iflf CHAPTER THIRD. or THE LEA8B AND HIRE OF WOBK. SECTION I. General provisions. 1666* Tho principal kinds of work -which may do loased or hired aro : 1. Tho personal sorvloos of workmen, servants and others ; 2. Tho work of carriers, by land and by water, who un- dertake tho conveyance of per- sons or things ; 3. That of builders and others, who undertake works by estimate or contract. — C. N. 1779. [II. 95.] SECTION II. Of the lease and hire of the personal service of work- men, servants and others, 1667* The contract of lease or hire of personal service can only be for a limited term, or for a determinate undertaking. — It may bo prolonged by tacit renewal. — fF. L. 71, § 1, 2, do cond. et dem. ; Desp. Louage, s. 2, n. 6 ; Poth. Louage, 372 ; Tr. 881 ; C. N. 1780. [II. 95.] 1668. It is terminated by the death of the party hired or his becoming, withput fault, unable to perform the services agreed upon. — It is also termi- nated by the death of the party hiring, in some cases, according to circumstances. — 2 Ort. Inst. 271 ; Poth. Louage, K. 165-8, 171-6 J C. N. 1795. [IL 95.] '*^1669* In any action for ^ages by domestics or farm 18 servants, in the absence of written proof, the master may offer his oath, as to tho condi- tions of the engagement and as to the fact of the payment, ao- companiod by a detailed state- ment.— If the oath bo not of- fered by the master it may be deferred to him, and is of a docisory nature, as regards the subjects to which it is limited. — C. P. 127 ; Poth. Louago, n. 17' Quy. Domestique, 102;. K Oages, §3, p. 143: C. N. 17hi. [11. 95.] 1670. Tho rights and obli- gations arising from the lease or hire of personal sorvico are subject to the rules common ta contracts. They are also regu- lated in certain respects in the country parts by a special law, and in the towns and villages by by-laws of the respective municipal councils. — C. S. L. C. c. 27: 0.24,8.28, §20. [II. 95.] *1671. The hiring of seamen is subject to certain special rules provided in the act of the imperial parliament. Intituled : The Merchant Shipping Act,. 1854, and by an act of the par- liament of Canada, intituled r An Act respecting the Shipping of Seamen, and the hiring of boat-men, commonly called voi/ageura, by certain rules provided in an act intituled : An act respecting Voyagours. — C. S. L. C. c. 55 ; c. 58 ; I. S. 17,18 v., c. 104 J 18, 19 v., c. 91 J 25, 26 v., c. 63. [11.95.] SECTION III. ^ Of carriers. 1672< Carriers by land anu. ^W^ ^V'- ^.T- IMAGE EVALUATION TEST TARGET (MT-3) 1.0 1.1 Ui 1^ |2.5 S?||4 i- 12.2 us 140 H^ m |l.25 1 1.4 ||||L6 ^ 6" ► Mm o: '/ Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. MS80 (716)873-4503 % 268 LEASE AND BIBE. "by water are subject, with re- spect to the safe-keeping of things entrusted to them, to the same obligations and duties as innkeepers, declared under the title Of J)epo»it.^fS. L. 1, i. £. & § 1-4, naut. oaup. stab. ; om. 1. 1, t. 4, s. 8, n. 5 ; C. N. 1782. [II. 96.] ^1673. They are obliged to receive and convey, at the times fixed by public notice, all persons applying for passage, if the conveyance of passengers be a part of their accustomed business, and all goods oflfered for transportation; unless, in «ither case, there is a reason- able and sufficient cause of refusal. — C. S. C. c. 66, s. «6-98, 119, 120 J Guy. Voitu- rier, 634 j De Vil. D. C. C. Voiture, n. 3 ; Sm. M. L. 288 j Sto. Bts. § 508; Ba. Ab. Car- riers, B. [II. 97.] 1674. They are liable, not only for what has been received in the carriage or vessel, but also for what has been deliver- ■ed to them at the port or place of deposit, to be put in their carriage or vessel. — ff. L. 1, § 8, naut. caup. ; Dom. 1. c. ; C. N. 1''83. [II. 97.] 1675. They are liable for the loss or damage of things entrusted to them, unless they can prove that such loss or damage was caused by a for- tuitous event or irresistible force, or has arisen from a defect in the thing itself. — Merl. Messageries, § 11, n. 2, for arrets j C. 1071, 1072 j Hustou vs. G. T. Railway, 3 L. C. J. 269 ; C. N. 1784 j C. Co. 103. [II. 97.] * 1676. Notice by carriers, of special conditions limiting their liability, is binding only upon persons to whom it is made known; and notwithstanding such notice and the know- ledge thereof, carriers are liable whenever it is proved that the damage is caused by their fault or the fault of those for whom they are responsible. —2 Tr. Louage, n. 942; 2 Par. n. 642, p. 449 ; Sto. Bts. § 664 & n. 3; 1 Bell, Com. § 104, 4th ed.; Sm. M. L. 489, 490; Huston vs. G. T. B. Co. oit. sup. [II. 97.] *1677. They are not liable for large sums of money or of bills or other securities, or for gold, or silver, or precious stones, or other articles of an extraordinary value, contained in any package received for transportation, unless it is declared that the package contains such money or other articles. — The foregoing rule nevertheless does not apply to the personal baggage of travel- lers when the money or the value of the articles lost is only of a moderate amount and suit- able to the circumstances of the traveller, and the traveller is entitled to be examined upon oath in proof of the value of the things composing such bag- gage. — Fer. Df. Aubergiste, 144 ; 1 Aug. 562 ; N. D. Aubergiste, § 3, n. 3 ; 6 Marc. 632 ; 6 Boi. 173-6 ; 11 Toul. n. 265; 2 Duv. 329; Sto. Bts, § 630; Sm. M. L. 489, 490; McDougal vs. Allan et al, 12 L. C. R. 321 ; tiadwallader vs. G. T. R. Co., 9 L. C. R. 169 j McDougal vs. Torrance, 4 L< C. J. 132. [II. 97.] r \ LEASE AND HIBE. 269 1678. If by reason of afor- tuitous event, or irresistible force, the transportation and delivery of the thing be not made within the stipulated term, the carrier is not liable in damages for the delay. — flF. L. 58, § 1, loc. cond. ; Dom. 1. 1, t. 4, s. 9, n. 5; C. Co. 104. [II. 97 J 1679. The carrier has a right to retain the thing trans- ported until he is paid for the carriage or freight of it. — £f. L. 6, § 1, 2, q. pot. ; Dom. 1. 3, t. 1, 8. 5, n. 11 ; Sm. M. L. 568-9 ; Brewster ct al. vs. Hooker et al, IL. C. J. 90; C.N. 2102. [II. 97J 1680. The reception of the thing transported and payment of the carriage or freight, with- out protest, extinguish all right of action against the carrier; unless the loss or damage is such that it could not then be known, in which case the claim must be made without delay after the loss or damage be- comes known to the claimant. —2 Par. n. 547, 554 j C. Co. 106. [11.97.] ^^1681. The conveyance of persons and things by railway is subject to certain special rules, provided in the Act res- pecting Railways. — C. S. C. c. 66, 8. 68, 96-102, 119, 120 j C. N. 1786. [II. 99.] 1682. Speoial rules relat- ing to the contract of affreight- ment and the conveyance of passengers in merchant vessels are contained in the fourth book.— C. N, 1786. [II. 99 j III. 383.] SECTION IV. OfworJc hy estimate and ciyn^ tract, 1683. When a party under- takes the construction of a building or other work by esti- mate and contract, it may be agreed, either that ho shall furnish labor and skill only, or that he shall also furnish ma- terials.— Dom. 1. 1, t. 4, 8. 7, n. 2; Poth. Lotiago, n. 393,304; C. L. 2728 ; C. N. 1787. [II. 99/1 1684. If the workman fur- nish the materials, and the work is to be perfected and delivered as a whole, at a fixed price, the loss of the thing, in any manner whatsoever before delivery, falls upon himself, unless the loss is caused by the fault of the owner or he is in default of receiving the thing. — ff. L. 2, § 1 ; L. 36, loc. cond. ; L. 20 ; L. 65, de cont. empt. ; Dom. 1. 1, t. 4, 8. 8, n. 8-10 ; Poth. Louage, n. 425, 426, 436, 394, & pt. 7, c. 3, al. 4, 5; Guy. Louage, 47 ; 6 Marc. 355, 356 ; Tr. Louage, n. 976 — ; 19 Duv. 336, 337 ; C. N. 1788. [II. 99.] 1685. If the workman fur- nish only labor and skill, the loss of the thing before delivery does not fall upon him, unless it is caused by his fault. — ff. L. 13, § 5; L. 62, loc. cond.; Dom. 1. 1, t. 4, s. 8, n. 4; Poth. Louage, n. 428, 434, 435, 500 ;• C. L. 2730; C.N. 1789. [II. 99.] 1686. In the case of the last preceding article, if the work IS to be perfected and delivered as a whole, and the thing perish before the work has been re- 270 LEASE AMD HIRE. oeirod, and without the owner being in default of receiving it, the workman cannot claim his wages, although he be without fault; unless the thing has perished by reason of defect in the materials, or by the fault of the owner.— ff. L. 61, § 1 ; L. 38, i. p. & § 1, loo. oond. ; Dom. 1. 1, t. 4, 8. 9, n. 4 ; Foth. Louage, n. 433, 434 ; Tr. Louage, n. 971-978; 6 Marc. 637 j C. C. V. 1275: C. N. 1790. III. 99.] 1687. If the work be com- posed of several parts, or done at a certain rate by measure- ment, it may be received in parts. It is presumed to have been so received, for all the parts paid for, if the owner pays the workman in propor- tion to the work done. — Poth. Lou. n. 436, 437 ; C. L. 2732 j C. N. 1791 J C. C. V. 1276 j Auth. under three pre. arts. [II. 99.] 1688. If a building perish in whole or in part Within ten years, from a defect in con- struction, or even from the un- favorable nature of the ground, the architect superintending the work, and the builder are jointly and severally liable for the loss. — Cod. L. 8, de op. Sub. ; Poth. Louage, n. 425. 26, Ob. n. 163 j Fer. on 113, 0. P. J Bour. 1. 6, t. 2, c.j9, n. 8 } C. 2259 J Brown «fe Laurie, 5 L. 0. R. 65, and oit. ; C. N. 1792, 2270. [11.99.] 1689. If» in the case stated in^ the last preceding article, the architect do not superin- tend the work, he is liable for the loss only which is ooca- Bioned by defector error in the plan furnished by him. — 19 Dw-r. 1. 354. [II. 99,] ^ 1690. [When an -architect or builder undertakes the con- struction of a building or other works by contract, upon a plan and specification?, at a fixed price, he cannot claim any ad- ditional sum upon the ground of a change from the plan and specifications, or of an increase in the labor and materials, un- less such change or increase is authorized in writing, and the price of them is agreed upon with the proprietor. — Poth. Lou. n. 407, 408 j N. D. D6vis et Marchd, 364 ; Tr. Louage ; n. 1016-1019; 6 Marc. 642; 6 Boi. 193 & arr. cit. ; 19 Duv. 366; C. N. 1793. [11.101.] 1691. The owner may can- cel the contract for the con- struction of a building or other works at a fixed price, although the work Lave been begun, on indemnifying the workman for all his actual expenses and labor, and paying damages ac- cording to the circumstances of the case. — Poth. Lou. n. 440- 2-4 ; Guy. Lou. 48 ; C. L. 2736 ; C.N. 1794. [11.101.] 1692. The contract of lease or hire of work by estimate and contract is not terminated by the death of the workman ; his legal representatives are bound to perform it. — But in cases wherein the skill and ability of the w6rkman were an inducement for making the contract, it may be cancelled at his death by the party hir- ing him. — Poth. Louage, n. 423, 463-465 ; Guy. Louago, 48 ; C.L,2737; C,N.1796. [11.101.] 1693> In the latter case stated in the last preceding ar- ticle the owner is bound to pay ]CAirx>ATK. 271 to the legal representatives of the workman, in proportion to the price agreed upon in the contract, the value of the work done and materials furnished, in case, such work and mate- rials are useful to him. — Poth. Lou. n. 456 j C. N. 1796. [II. 101.] 1694. The contract is not terminated by the death of the party hiring the work, unless the performance of it becomes thereby impossible. — Poth. Lou. n. 444 ; G. N. 1742. [II. 101.1 1695. Architects, builders and other workmen, have a privilege upon the buildings, or other works constructed by them, for the payment of their work and materials, subject to the rules contained in the title Of Privilegea and Hypothecs, andthe title Of Registration of Meal Bights.^C. S. L. C. c. 37, a. 26. § 4 J C. N. 2103. [11.101.] 1696* Masons, carpenters, and other workmen, who un- dertake work by contract, for a fixed price, are subject to the rules prescribed in this section. They are regarded as con- tractors with respect to such work. — Tr. Louage, n. 1053 ; 4 Fen. 212 J C.L. 2742; C. C. V. 1283; C.N. 1799. [11.101.] 1697. The workmen who are employed by the contractor in the construction of a build* ing or other works have no direct action against the owner. — Guy. Ouvrier, 470 ; Bridgman vs. Ostoll, 9 L. C. R. 445 : G. N. 1798. [II. 101.] CHAPTER FOURTH. OF THE LEASK OF CATTLE 05 SHARES. 1698. The letting out of cattle on shares is a contract by which one of the parties delivers to the other a stock of cattle to keep, feed, and take care of, upon certain conditions as to the division of profits between them. — Cod. L. 8, De pac. ; Poth. Chop. n. 6 ; 2 Arg. 296 ; C. N. 1800. [II. 103.] 1699. Every kind of animal wh'ch is susceptible of increase or profit, in agriculture or commerce, may be the object of this contract. — Dom. 1. 1, t. 4, 8. 1, n. 2; Poth. Chep. n. 21-23 : C. N. 1802. [II. 103.] 1700. If there be no special agreement the contracc is regu- lated by the usage of the place where the cattle are kept. — G. N. 1803. [II. 103.] TITLE EIGHTH. OF MANDATE. CHAPTER FIRST. GENERAL PROVISIONS. 1701. Mandate is a contract by which a person, called the mandator, commits a lawful business to the management of another, called the mandatary, who by his acceptance obliges himself to perform it. — The 372 MANDATB. aoeeptanoe maj be implied from the acts of the mandatary, and in some cases from his tilence. — ff. L. 1, De proc, L. i, Mand. ; Poth. Mand. 1, 31- .33; Dom. 1. 1, 1. 15, s. 1, § 1-3; Ir. Mand. n. 6 ~, 146, 148, 149 j Halifax, A. C. L. 70 ; Sto. Bts. 137 : C. L. 2958 j C. X. 1794, 1795. jrill. 81.] 1702. Mandate is gratu- itous unless there is an agree- ment or an established usage to the contrary. — flf. L. 1, § 4, L. 6, mand. ; Inst. 13, de mand. ; Poth. Mand. n. 22, 23, 26 ; Dom. 1. 0. § 9, and s. 3, § 8, 9 ; Tr. Mand. 249-251 ; C. N. 1986. [III. 81.] 1703. The mandate may be either special, for a parti- cular business, or general, for all the affairs of the mandator. — When general it includes only acts of administration. — For the purpose of alienation and hypothecation, and for all actA of ownership other than acts of administration, the mandate must be express. — ff. L, 1, § 1, de proc. L. 16, L. 60, L. 63, e. t.; Poth. Mand. n. 123, 144, 159, 160 j Dom. 1. c. s. 1, § 6-8, s. 3, § 3, 10 J Tr. Mand. n. 276, 278, 286 j C. N. 1987, 1988. [III. 81.] * 1704:. The mandatary can do nothing beyond the autho- rity given or implied by the mandate. He may do all acts which are incidental to such authority* and necessary for the execution of the mandate. — ff. L. 66, de proc. ; Dom. 1. 0. 8. 3, § 3, 10 ; Tr. Mand. 285, 319: C.N. 1989. [III. 81.] 1705< Powers granted to persons of a certain profession or calling to do any thing in the ordinary course of the business which they follow, need not be specified ; they are inferred firom the nature of such profes- sion or calling. -- Sto. Ag. § 127-133, 228 ; Pa. P. & A. 194, 200, 201 J C. L. 2969. [III. 810 1706> An agent employed to buy or sella thing cannot be the buyer or seller of it on his own account. — ff. L. 34, § 7, de oontr. emp.; Sto. Ag. n. 213: Sm. M. L. 121 ', C. 1484: C.N. 1596. [III. 81.] 1707* Emancipated minors may be mandataries, but in such cases the action tif the mandator against the minor is subject to the general rules relating to the obligations of minors. — ^ff. L. 3, § 11, L. 4, de min. ; Tr. Mand. n. 330, 332- 335 } C. N. 1990. [III. 81.] 1708* A married woman, who executes a mandate given to her, binds the mandator, but no action can be brought against her otherwise than as provided in the title Of Mar- riage.— Poth. P. Mar. n. 49; Tr. Mand. n. 330, 332-335; C. 183; C.N. 1990. [III. 81,] CHAPTER SECOND. OF THE OBLIGATIONS OF THE MANDATARY. SECTIOlf I. Of the obligations of the mandatary toward the mandator. 1709. The mandatary is obliged to execute tho mandate which ho has aceeptcd, and ho is liable for damages resulting MANDATE. 27a from his non-ezeoution of it while hia authority continues. — He is obliged, after the ex- tinction of the mandate, to do whatever is a necessary con- sequence of acts done before, and if the extinction be by the death of the mandator, he is obliged to complete business which is urgent and cannot be delayed without risk of loss or injury.— fF. L. 22, § 11, L. 6, L. 8, § 10, mand. ; Inst. § 11, de mand. ; Poth. Mand. n. 38, 107 ; Ersk. Inst. b. 3, t. 3, n. 41, p. 704; Sto. Bts. n. 204; Tr. Mand. n. 382, 383 ; C. L. 2971: C. N. 1991. [III. 83.] 1710. The mandatary is bound to exercise, in the exe- cution of the mandate, reason- able skill and all the care of a prudent administrator. — Ne- vertheless, if the mandate be gratuitous, the court may mo- derate the rigor of the liabili- ty arising from his negligence or fault, according to the cir- cumstances.— ff. L. 10, L. 12, § 10, mand. ; C;d. L. 13, mand. ; Poth. Mand. n. 46; C. 1045; Dom. 1. 1, 1. 15, s. 3, § 4, 5 ; Tr. Mand. n. 393 ; Jones, Bts. 61, 62, 114; Pa. P. & A. 6; Ersk. Inst. b. 3, t. 3, § 36, p. 699; C. L. 2972; C.N. 1992.1111. 83.] 1711* The mandatary is answerable for the person whom he substitutes in the execution of the mandate, when he is not empowered to do so ; and if the mandator be injured by reason of the substitution he may repudiate the acts of the substitute. — The mandatary is answerable in like manner when he is empowered to sub- atitttte, witUout designation of the person to be substituted, and he appoints one who is notoriously unfit. — In all these cases the mandator has a di- rect action against the person substituted by the mandatary. — fiF. L. 8, § 3, mand. L. 21, § 3, de neg. gest ; Poth. Mand. n. 99; Lac. Procureur, 521; Tr. Mand. n. 447-449; 0. L. 2296, 2979,2978; C.N. 1994. [III. 83J x712i When several man- dataries are appointed together for the same business, they are jointly and severally liable for each other's acts of administra- tion, unless it is otherwise sti- Eulated. — ^ff. L. 60, § 2, mand. ; ►om. 1. 1, t. 15, s. 3, n. 13; Poth. Mand. n. 63 ; Ersk. Inst. b. 3, t. 3, § 34; Sto. Ag. § 44, Bts. § 195 ; Jones, Bts., 51, 62 ; C. N. 1996; Tr. n. 489-7. [III. 83.] *1713. The mandatary is bound to render an account of his administration, and to do- liver and pay over all that he has received under the autho- rity of the mandate, even if it were not due; subject neverthe- less to his right to deduct there- from the amount of his dis- bursements and charges in the execution of the mandate. — If he have received a determinate thing he is entitled to retain it until such disbursements and charges are paid. — ff. L. 20, L. 10, § 8, mand. ; Poth. Mand. n. 51, 68, 59; Dom. 1. c. n. 8; Tr. Mand. n. 698, 699 - ; Pa. P. & A. 124, 125, 127; Sto. Bts., § 173; C. N. 1993; C. 1723. [III. 83.] 1714. He is bound to pay interest upon the money of th» 274 MANDATB. mandator which he employs for his own use, from the day of so employing it, and upon any remainder due to the man- dator, from the time of being put In default.-~ff. L. 10, § 3, mand. ; Poth. Mand. n. 51, 56 ; O. N. 1996. [III. 86.] SECTION II. Of tlic ohligations of the mandatary toioard third persons, 1715i The mandatary act- ing in the name of the manda- tor and within the bounds of the mandate is not personally liable to third persons with whom he contracts, except in the case of factors hereinafter specified in article 1738, and in the oases of contracts made by the master of a ship for her use. — ff. L. 20, de inst. act.; Poth. Mand. n. 87; Dom. 1. 1, t. 16, 8. 3, n. 8 ; Tr. Mand. n. 510; Sto. Ag. 263; Pa. P. & A. 368 ; C. N. 1997. [III. 85.] 1716i A mandatary who acts in his own name is liable to the third party with whom he contracts, without prejudice to the rights of the latter against the mandator also. — Poth. Mand. n. 88 ; Pa. P. & A. 361, 372 ; Sto. Ag. 163, 266, 269 ; Tr. Mand. n. 522 —. £111. 85.] 1717. He is liable in like manner when he exceeds his powers under the mandate, unless he has given the party with whom he contracts suffi- cient communication of such powers. — C. L. 2981 ; Sto. Ag. 264, 265; Tr. Mand. 591, 592; C.N. 1997. [III. 85.] 1718. He is not held to have exceeded his powers when he executes the mandate in a manner more advantageous to the mandator than that speci- fied by the latter. — ff. L. 5, § 5, mand.; Poth. Mand. n. 92; Tr. Mand. n. 403 ; C. L. 2980. [III. 85.] 1719. He is held to have ex- ceeded his powers, when he does alone any thing which, by the mandate, he is charged with doing conjointly with another. — ff. L. 5, mand. L. 11, 8 5, de inst. act.; Poth. Mand. n. 99 ; Dom. 1. 1, t. 15, s. 3, ». 14 ; Sto. Ag. § 42, 43. [III. 85.] CHAPTER THIRD. OF THE OBLIGATIONS OF THE MANDATOR. SECTION I. Of the ohligations of the mandator toward the mandatary. 1720. The mandator is bound to indemnify the man- datary for all obligations con- tracted by him toward third persons, within the limit of his powers; and for acts exceed- ing such powers, whenever they have been expressly or tacitly ratified. — ff. L. 45, i. p., § 5, mand. ; Dom. 1. 5, 1. 15, s. 2, n. 1 ; Poth. Mand. n. 80- 82 ; Sto. Bts. § 196, 198; C. N. 1998. [III. 85.] 1721. The mandator or his legal representative is bound to indemnify the mandatary for all acts d6ne by him with- in the limit of his powers, after the extinction of the f ', UJLITDATS. 27S mandate by death or other cause, when ho is ignorant of such extinction. — Poth. Mand. n. 106 } C. 1728, 1670. [III. 85.] 1722. The mandator is bound to reimburse the ex- penses and charges which the mandatary has incurred in the execution of the mandate, and to pay him the salary or other compensation to which he may be entitled. — ^When there is no fault imputable to the manda- tary, the mandator is not re- Leased from such reimburse- ment and payment, although the business has not been suc- cessfully accomplished ; nor can he reduce the amount of the reimbursement upon the ground that the expenses and charges might have been made less by himself.— fif. L. 12, § 9, L. 27, S 4; L. 56, § 4, mand.; Poth. Mand. n. 68, 69, 78, 79 ; Dom. 1. 1, 1. 15, s. 2,n. 2, 3 ; 2 Par. n. 489, 571; C. Co. 93, 94 j C.N. 1999. [III. 87.] 1723< The mandatary har. a privilege and right of pre- ference for the payment of^the expenses and charges mention- ed in the last preceding article, upon the things placed in his hands and upon the proceeds of the sale or disposal thereof. — C. 1713 J C. Co. 93, 94. [III. 87.] 1724:. The mandator is ob- liged to pay interest upon money advanced by the man- datary in the execution of the mandate. The interest is com- puted from the day on which the money is advanced. — ff. L. 12, § 9, mand. ; Dom. 1. c. n. 4 ; Tr. Mand. n. 274, 275 -: C. N. 2001. [III. 87.] 22 1725. The mandator is ob- liged to indemnify the manda- tary who is not in fault, for losses caused to him by th« execution of the mandate. — ff. L. 20, L. 29, § 6, mand. ; Poth. Mand. 75, 76 ; Dom. 1. 1, t. 15, 8. 2, n. 6 ; Sto. Bts., $ 200, 201, Ag. 341 ; Tr. Mand. n. 655 - : C.N. 2000. [III. 87.] 1726. If a mandate bo given by several persons, their obligations toward the manda- tary are joint and several. — ff. L. 59, § 3, mand. ; Poth. Mand. n. 82 ; Dom. 1. c. n. 5 ; Ersk. Inst. b. 3, t. 3, § 38: C. N. 2002. [III. 87.] SECTION n. Of tlie obligations of the man- dator totoard third persons. *1727. The mandator is bound in favor of tliird persons for all the acts of his manda- tary, done in execution and within the powers of the man- date, except in the case pro- vided for in article 1738 of this title, and the cases wherein by agreement or the usage of trade the latter alone is bound. — The mandator is also answer- able for acts which exceed such power, if he have ratified them either expressly or tacitly. — Poth. Ob. n. 75, 77 - , 447, 448, Mand. n. 87, 88, 89 j Dom. 1. 1, t. 15, s. 2, n. 1 J 18 Dur. 260, 261 J Tr. Mand. n. 511 — , 516, 517 J 522, 535,536; Sto. Ag. § 442, 444,445, 446, 448; 1 Bell, Com. § 418, p. 396, 399 ; Pa. P. & A. 247, 248; C. N. 1998. [III. 87.] 1728. The mandator or his legal representative is bound 276 MANDATE. toward third persons for all aots of the mandatary, done in execution and within the powers of the mandate after it oas been extinguished, if its extinction be not known to such third persons. — Poth. Mand. 106; Dom. I. 1, t. 15, s. 4, n. 1, 7 ; Ersk. Inst. b. 3, t. 3,5 41} O.K. 2009. [III. 87.] 1729. The mandator or his legal representative is bound for acts of the mandatary done in execution and within the powers of the mandate after its extinction, when such acts are a necessary oonsequenco of a business already begun. — He is also bound for acts of the mandatary done after the ex- tinction of the mandate by death or cessation of authority in the mandator, for the com- {)letion of a business, where OSS or injury might have been caused by delay. — Poth. Mand. 106, 107, 111, 121 J Dom. 1. c. n. 7 ; Ersk. Inst. 1. c. ; 1 Bell. Com. § 413, p. 396 J C. 1709, [III. 89.] 1730« The mandator is liable to third parties who in good faith contract with a per- son not his mandatary, under the belief that he is so, when the mandator has given reason- able cause for such belief. — 1 Bell, Com. 411, 412 j Pa. P. A. 162 -J Sto. Ag. 443. [III. 89.] 1731> He is liable for dam- ages caused by the fault of the mandatary, according to the rules declared in article 1054. —Poth. Ob. n. 453; 1 Bell, Com. § 418, p. 400 : Sto. Ag. § 462. [III. 89.] CHAPTER FOURTH. OF ADVOCATES, ATTORNEYS AKD NOTARIES. *1732t Advocates, attorneys and notaries are subject to the general rules contained in this title, in so far as they can be made to apply. The profession of advocate and attorney is re- gulated by the provisions con- tained in an act intituled : An Act respecting the Bar of Lower Canada, and that of notary by an act intituled : An Act res- pecting the Notarial Profeaeion. — C. S. L. C. 0. 72 ; lb. o. 73; C. S. C. c. 76. [III. 80.] 1733. The rules concerning the duties and rights of advo- cates and attorneys, in the exercise of their functions be- fore the several courts of Lower Canada, are contained in the Codo of Civil Procedure, and in the rules of practice of such courts respectively. — [III. 89.] 173^ The rules of pres-. cription relating to advocates, attorneys and notaries are con- tained in article 2260. [III. 89.] CHAPTER FIFTH. OF BROKERS, FACTORS AND OTHER COMMERCIAL AOENTS. *1735. A broker is one who exercises the trade and calling of negotiating between parties the business of buying and sell- ing or any other lawful trangac- tions. — He may be the manda- tary of both parties and bind both by his acts in the business for which he is engaged by them. — ff. Xt. 3i do prox. ; Dom. 1. 1, t. 17, s. 1, n. 1 ; C. Co. 74; C. L.2985; Sto. Ag. § 28; MANDATE. 3T7 6m. M. L. 507, 608 ; gymo ot al. vs. Howard, 1 L. C. R. 10. [III. 89.] ^ 1736. A factor or oommia- slon-merohant is an agent who is employed to buy or sell goods for another, either in his own name or in the name of his principal, for which he receives a compensation commonly call- ed a commission. — 3 Chit. Co. L. 193, 194 ; Sto. Ag. S 33 ; 2 Par. 404-413; 1 Boll, Com., 408, 409 ; Ersk. Inst. b. 3, t. 3, $ 34. [III. 89.] 1737* Brokers and factors are subject to the general rules declared in this title, when these are not inconsistent with the articles of this chapter. [III. 91.] ^1738* A factor whose prin- cipal resides in another country is personally liable to third persons with whom he con- tracts, whether the name of the {Hrincipal be known or not. The principal is not liable on such contracts to the third parties, unless it is proved that the credit Waa .i^iven to both principal and jfactor, or to the principal alone.—Pa. P. & A. 248, 273, 282 ; Sto. Ag. § 268, 290, 448 ; 2 Par. 404 J Sm. M. L. 66. [III. 91.] 1739. Any person may con- tract for the purchase of goods with any agent entrusted with their possession or to whom the same nave been consigned, and may receive the same from such agent and pay him the price thereof, and such contract and payment is binding upon the owner of the goods, notwith- standing the purchaser has notice that he is contracting only with an agont.— C. S. C. 0.69,8.1. [III. 91.] 17^0* Any agont entrusted with the possession of goods, or of the documents of title there- to, is deemed the owner thereof for the following purposes, that is to say : 1. To make a sale or contract, as mentioned in the last preced- ing article ; 2. To entitle the consignee of goods consigned by such agent, to a lien thereon for any money or negotiable secu- rity advanced or given by him to or for tho use of such agent, or received for him by such agent for tho use of tho con- signee, in like manner as if such agent were the true owner of the goods ; 3. To give validity to any contract or agreement, by way of pledge, lienor security, made in good faith with such agont, as well for an original loan, advance or payment made upon the security of the goods or documents, as for any other or continuing advance in respect thereof; 4. To make such contract binding upon the owner of tho goods and on all other per- sons interested therein, not- withstanding the person claim- ing such pledge or lien had notice that he was contracting only with an agent. — C. S. C. c. 69, 8. 2. [III. 91.] 174:1. In case any person having a valid lien and secu- rity on any goods or documents of title or negotiable security, in respect of a previous advance upon a contract with an agent. 278 MANDATE. gives up tho same to such agent, upon a contract for tho pledge, lien or security of other goods, or of another document or secu- rity, by such agent delivered to him in exchange, to be held upon the same Hen as tho goods, document or security so given up, then, such new contract, if in good faith, is deemed a valid contract, made in con- sideration of a present advance in money, within the provisions of this chapter, but the lien acquired under such now con- tract, on the goods, document or security, deposited in ex- ohange, cannot exceed the value of the goods, document or security, so delivered up and exchanged, — C. S. 0. o. 69, 8. 3. [III. 01.] 174i2t Such contracts only are valid as are mentioned in this chapter, and such loans, advances and exchanges only are valid as are made in good faith and without notice that the agent making the same has no authority so to do, or that he is acting in bad faith against the owner of the goods. — C. S. C. 0. 59, 8. 4. [III. 91.] 174:3. Loans, advances and exchanges in good faith, though made with notice of the agent not being the owner, but with- out notice of his acting without authority, bind the owner and all other persons interested in the goods, documents or securi- ty, as the case may be. — C. S. C. e. 69, 8. 6. [III. 91.] 1744:. No antecedent debt owed by an agent entrusted with the possession of goods or the documents of title thereto, can be the subject of any lien or pledge of such soods or do- cuments, nor can the agent for any purpose relating to such goods deviate from tho orders or authority received from his principal.— 0. S. 0. o. 69, s. 6. [III. 93.] 1745. Bills of lading, ware- house-keeper's or wharflngor's receipts or orders for delivery of goods, bills of inspection of potash or pearlash, and all other documents used in the ordinary course of business, as proof of the possession or con- trol of goods, or purporting to authorize, either by endorse- ment or by delivery, the posses- sor of any such document to transfer or receive goods there- by represented, are deemed documents of title within the § revisions of this chapter.— C. . C. 0. 69, 8. 7. [III. 93.] 1746. Any agent possessed of any document of title, whether derived immediately from the owner of the goods, or obtained by reason of the agent having been entrusted with the possession of the goods, or of any document of title thereto, is deemed to be entrusted with the possession of the goods represented by such document of title.— 0. S. C. c. 69, s. 8. [III. 93.] 1747. Any contract pledg- ing or giving a lien upon any document of title, is deemed a pledge of and lien upon the goods to which it relates, and the agent is deemed the posses- sor of the goods or documents of title, whetl\,erthe same be in his actual custody or be held by any other person for him or subject to his control.— MANDATX. 279 0. S. C. 0. 59, 8. 9. [III. 93.] 1748t When a loan or ad- yanoo is made in good faith, to an agent entrusted with and in possession of goods or docu- ments of title, on the faith of any contract in writing to con- sign, deposit, transfer or deli- ver such goods, or documents of title, and the same are actually received by the person malting the loan or advance, either at the time of the contract or at a time Bubseouent thereto, with- out notice tnat the agent is not authorized to make the pledge or security, such loan or ad- vance is deemed a loan or ad- vance upon the security of the goods or documents of title within the provisions of this chapter. — C. S. C. o. 59, s. 10. [III. 93.] 1749. Every contract, whe- ther made directly with the agent or with a clerk or other person on his behalf, is deemed a contract with such agent. — C. S. 0. c. 69, B. 11. [III. 93.] 1750. Every payment, whe- ther made by money, bill of exchange or other negotiable security, is deemed an advance within the provisions of this chapter. — C. S. C. c. 59, s. 12. [lit. 93.] 1761. Every agent in pos- session of goods or documents as aforesaid is for the purposes of this chapter taken to be en- trusted ther ith by the owner, unless the contrary is shewn in evidence. — C. S. 0. o. 59, s. 13. [III. 93.] 1752. Nothing contained in this chapter lessens or affects the civil responsibility of the agent for the breach of any ob- 19 ligation, or the non-fulfilment of his orders or authority. — 0. S. 0. 0. 59, s. 14. [III. 93.] 1753. Notwithstanding any of the foregoing articles, the owner may redeem any goods or documents of title pledged as aforesaid, at any time before the same hare been sold, upon repayment of the amount of the lien thereon, or restoration of the securities in respect of which the lien exists, and upon payment or satisfaction to the agent, of any sum of money for or in respect of which such agent is entitled to retain the goods or documents by way of lion against such owner; or he may recover from the person with whom any goods or docu- ments have been pledged, or who has any lien thereon, any balance or sum of money re- maining in his hands as the produce of the sale of the goods, after deducting the amount of the lien under the contract. — C. S. C. c. 59, i. 20. [III. 95.] 1754. In case of the bank- ruptcy of any agent, and in •case the owner of the goods redeem the same, he is held, in respect of the sum paid by him on aciount of the agent for such redemption, to have paid the same for the use of such agent before his bank- ruptcy, or in case the goods have not been so redeemed, the owner is deemed a creditor of the agent for the value of the goods so pledged at the time of the pledge, and may in either case claim or set off the sum so paid, or the value of such goods, as the case may' 280 MANDATE, be.— C. S. C. 69, s. 21. fill. 96.] CHAPTER SIXTH. OF THE TERMIKATIOX OF MANDATE. 1755. Mandate terminates : 1. By revocation; 2. By the renunciation of the mandatary ; 3. By the natural or civil death of the mandator or man- datary j 4. By interdiction, bank- ruptcy, or other change in the condition of either party by which his civil capacity is affected ; 5. By the cessation of au- thority in the mandator; 6. By the accomplishment of the business or the expiration of the time for whieh the mandate is given; 7. By other causes of ex- tinction common to obligations. — ff. L. 12. § 16, L. 22, § 11, L. 27, § 3, jj, 26, i. p. mand. ; Cod. L. 15, mand. ; Poth. Hand, n. 38 -, 101, 103, 111-113, 120; Dom. 1. 1, 1. 15, s. 4 ; Tr. Mand. 744-; Sto. Bts. §§ 202-211; Clam. 300 -, 332 - ; C. 1138 ; C. N. 2003. [III. 95.] 1756* The mandator may at any time revoke the man- date, and oblige the mandatary to return to him the procura- tion, if it be an original instru- ment.— ff. L. 12, § 16, mand. ; Poth. Mand. 1. c. ; Tr. Mand. 764- ; C. L. 2997; C. N. 2004. [III. 96.] 1757. The appointment of a new mandatary for the same business haa the effect of a Tevocation of the first appoint- »<nt from the day on which the former mandatary hals been notified of the new appointment. — ff. L. 31, 5 fin., De proo. ; Poth. Mand. 114 — ; Dom. 1. c. 