A surveyor of highways appointed by the vestry of a parish may be liable for accidents due to the condition of such highways (e). Apparently the 56th section of 5 & 6 Vict. c. 50, which imposes a penalty on a surveyor who causes any heap of stones or other matter to be laid on the highway, and allows it to remain there at night without proper precautions, does not apply to cases where the road itself is dangerous and not the materials (ƒ). There is no analogy between the case of a captain of a ship of war and that of the master of a ship. The former has no power of appointing the officers or crew on board; and is compellable to enter upon the performance of the duties upon the ship to which he is appointed. Hence he is not answerable for damage done by his vessel running down another vessel, the damage having been done during the watch of the lieutenant, and when the captain was not upon deck, nor called by his duty to be there (g). In all cases deputies are answerable for their own personal misfeasances; hence a deputy postmaster is liable for nondelivery of letters gratis in a country post town (h). Hence it was said in an early case, that as to an action on the case lying against the party really offending, there can be no doubt of it; for whoever does an act by which another person receives an injury is liable in an action for the injury sustained. If the man, who receives a penny to carry letters to the postoffice, loses any of them, he is answerable; so is the sorter in the business of his department. So is the postmaster for any fault of his own (2). *The law relating to the liability of agents to third per- [334*] sons for tort may be thus summarized: 1. No agents, other than masters of ships, are liable to third parties for results due to their omissions and nonperformance, or the omissions of their sub-agents. 2. Every agent is personally liable to third parties for the results of his own wrongdoing. ways and liability for nonperformance 15 East, 384. of this duty, see Shearman & Redf. on Neg., § 350 et seq. (e) Pendlebury v. Greenhalgh, 1 Q. B. Div. 36. (f) Ibid. (g) Nicholson v. Mouncey and Symes, (h) Rowning v. Goodchild, 2 W. Bl. 909. See note, p. 332. (i) Per Lord Mansfield, Whitfield v. Lord Le Despencer, Cowp. 754. (k) See the Chapter on Ratification. 3. Both the preceding propositions are equally true of public and private agents. 4. Ratification by the crown frees an agent from liability for wrongdoing: not so ratification by an individual (k). 5. Where the agent's act is within the scope of his authority, his principal also will be liable; where the act is wilful, the immediate wrongdoers alone will be liable. THE right of an agent to commission for his services depends upor a variety of circumstances which it will be necessary to [336*] *examine in detail. This right may be derived from an express contract between the principal and agent, from a legal custom, or from an implied contract.1 It is part of the gen-" eral law of contracts that where there is an express contract between the parties, neither can resort to an implied one inconsistent with the express one. Expressum facit cessare tacitum is the rule. Hence it follows that, as a general rule, where the contract between the principal and agent is an entire contract, the latter can recover no remuneration upon a quantum meruit, but must recover the whole amount agreed upon or nothing (a). The right to recover may also be similarly controlled by custom (6). Turning to the circumstances under which an agent may claim commission, it will be seen that the claims may be made under any of the following circumstances: The authority may be duly executed. To entitle a broker to commissions for services in negotiating a sale, the services must be rendered under an employment by his principal. Services rendered as a mere volunteer, without any employment, express or implied, will give no right to commissions. Hinds v. Henry, 36 N. J. Law, 328; Earp v. Cummins, 54 Penn. St. 394; Cook v. Welch, 9 Allen, 350; Sussdorff v. Schmidt, 55 N. Y. 319. Such employment must be established either by showing a previous authority or the acceptance of his agency and adoption of his acts. Keys v. Johnston, 68 Penn. St. 42. (a) See Cutter v. Powell, 6 T. R. 320; [2 Smith's Lead. Cases, 17, and notes.] (b) See Read v. Rann, 10 B. & C. 438. It may be only partially executed. It may not be executed. It may be so executed that the agent's services are useful to the principal. The act authorized may be illegal. - The authority may be revoked before execution (a) by act of principal; (b) by death of principal. The amount to which an agent is entitled will, in the absence of an [express] contract or custom,' be fixed by a jury.2 When the authority has been duly executed, the agent is entitled to his commission, unless the services performed are illegal.3 See Suydam v. Westfall, 4 Hill, 211; Kock v. Emmerling, 22 How. 69; Glenn v. Salter, 50 Ga. 170; Robinson v. Morris, 51 How. Pr. 442. Parties in charge of gold dust as factors for another, have no right to take their compensation out of the gold dust. The gold dust is to be treated as property, and their compensation must be estimated in money. McCune v. Erfort, 43 Mo. 134. 2 The amount in such case must be determined on a quantum meruit. See Briggs v. Boyd, 56 N. Y. 289; Ruckman v. Bergholz, 38 N. J. Law, 531; Glenn v. Salter, supra. In the absence of any understanding between the principal and agent as to whether the latter is to be paid for his services, the law by implication supplies the omission, holds him an agent for hire, and makes him accountable accordingly. Mangum v. Ball, 43 Miss. 288. See Wood v. McCranie, 21 La. Ann. 557. A broker to be entitled to his commissions for negotiating a sale of property, must find a purchaser in a situation and ready and willing to complete the purchase according to the terms agreed on. Kimberly v. Henderson, 29 Md. 512; McGavock v. Woodlief, 20 How. 221; Mooney v. Elder, 56 N. Y. 238; Hinds v. Henry, 36 N. J. Law, 328; Cook v. Kroemeke, 4 Daly, 268; Hein rich v. Korn, id. 74; Fraser v. Wyckof, 63 N. Y. 445; Wylie v. Marine Nat. Bank, 61 id. 415. See, also, Walker v. Tirrell, 101 Mass. 257. But it is not necessary for the broker in an action for commissions to prove in the first instance that the person introduced was of sufficient pecuniary ability to pay the price. On this question the burden of proof is on the defendant to prove the contrary. Cook v. Kroemeke, 4 Daly, 268. See, however, Coleman v. Meade, 13 Bush, 358, where the rule is laid down that if the principal rejects the purchaser, and the broker claims his commission, he must show not only that the person furnished was willing to accept the offer precisely as made, but in addition that he was an eligible purchaser, and such a one as the principal was bound, as between himself and the broker, to accept. Where a party is produced and a contract entered into through the agency of the broker, but the contract is of such a character that the party contracting by the exercise of an option given him, relieves himself of the obligation to complete the purchase, and does not in fact become the purchaser, the broker is not entitled to commissions. Kimberly v. Henderson, supra. See, however, Leete v. Norton, 43 Conn. 219. When a real-estate broker under |