WHEN THE AGENT IS ENTITLED TO HIS PAY. The agent having fully performed his undertaking is entitled to his compensation. The agent may agree with the principal that full performance shall be a prerequisite to the pay ment of any compensation, and where such an agree ment has been fairly made it will be enforced, full performance has been defeated by some act of the principal.
And though the fruits of an undersaking are to be considered in determining the amount of an agent's compensation where the salary is implied, the mere fact that the business accomplished by the agent has proven profitless to the principal will be no defense to the agent's claim for compensation.
Whether an agent is entitled to pay when his author ity is revoked before complete performance, depends mainly upon whether the agency has been rightfully or wrongully terminated by the principal. If the prin cipal has rightfully revoked the agent's authority he may still be liable to pay him for services already ren dered, but may offset any claims for damages which the agent's misconduct may 'have caused him. (Massey v. Tay-lor, 5 Cold. (Tenn.) 447; Carroll v. Welch, 26 Tex. 147.) In cases of an agency made determinable upon the happening of a contingency, or at the will of the . principal, where there has been no misconduct on the part of the agent, he is entitled to reasonable compen sation for the work done, as well as to be reimbursed for any outlays he may have made in regard to the agency. (Chambers v. Seay, 73 Ala. 372.) But where for g,ross neglect or misconduct in the course of the agency his authority- has been revoked, the agent is not entitled to any compensation. (Sumner v. Reicheniker, 9 Kans. 42a) If the agent's authority is wrongfully revoked by the principal, as where he is discharged without cause, when the agency is not terminable at the will of the principal, he is entitled to compensation for all services rendered, as well as for those to be rendered in the fu ture by way of damages for being wrongfully deprived of a lucrative employment. The remedies of the agent for a wrongful discharge by the principal are the same as those for the breach of a contract of service. When an agent is wrongfully discharged it is his duty to exer cise reasonable diligence in seeking and obtaining other employment, and thus to reduce his damages as much as possible. But he is not under obligation to ac cept any other employment that may be offered; the other employment that it is his duty to accept is one of the -same general nature as the one he has been dis charged from. (Utter v. Chapman, 38 Cal. 659; Will iams v. Chicago Coal Co. 6o III. 149; Wolf v. Stude baker, 65 Pa. St. 459.) Nor is an agent wrongfully dis charged by his principal bound to seek employment in a new locality, or with an objectionable employer in or der to reduce his damages. (Harrington v. Gies, 45 Mich. 374; Strauss v. Mertief, 64 Ala. 299.) The right of action accrues to the agent when he is discharged; also when the principal wholly repudiates the agency there is an immediate right of action.
The agent may acquiesce in his discharge, and then the principal is not liable for damage; but such acqui escence is not to be implied from the fact that the agent, without protest, surrenders his trust. (Mechem on Agency, Sec. 625; Boyle v. Parker, 46 Vt. 343.) When the agency is revoked by operation of law, as by the death, insanity or bankruptcy of the principal, the agent has no claim to future wages or damages. (Yerrington v. Greene, 7 R. I. 589.) When the agency is terminated by the death, sickness or incapacity of the agent, he or his representatives are entitled to recover for services rendered, and this applies to cases in which the payment was contingent upon the entire perform ance. (Ricks v. Yates, 5 Ind. 117.) But the principal may offset damage for failure to perform entire con tract.
Whether an agent is entitled to compensation when he abandons his agency, depends upon whether the agency was rightfully or wrongfully abandoned. If the abandonment was justifiable the agent may recover full compensation for his services up to the time of the abandonment at least, and in cases he may recover fur ther compensation by way of damages. Thus, if the agency was terminable at the option of the agent, he may recover for services rendered, and if abandon ment was caused by inisconduct of the principal he mav also recover damages. (Patterson v. Gage, 33 Vt. 558; Winship v. Base Ball Assoc., 78 Ale. 571.) If the agent wrongfully abandons his agency, whcther hc is entitled to compensation or not depends upon the cir cumstances of the case and the nature of the agency. Thus, if the undertaking is an entire one, so that a com plete performance is a condition precedent to payment, the general rule is, that the agent by abandonment of the agency, abandons his compensation, On the other hand, if the undertaking is not entire, or, as it is sometimes expressed, is severable, the agent may re cover compensation for such services as he has ren dered; subject, however, to reduction for all damages he has caused the principal.
What will amount to an abandonment by the agent is to be determined by the facts and circumstances of the agency. If a mere temporary- absence of the agent from the employ-ment caused no loss, it will not be an abandonment. (Shaver v. Ingham, 58 Mich. 649.) So where an agent is compelled to abandon his agency through sickness, or because a dangerous epidemic prevails in the vicinity of his work, such abandonment will be excused. These misfortunes are treated as the result of inevitable accident, or acts of God for which the agent is not responsible. (Jennings v. Lyons, 39 Wis. 557; Lakeman v. Pollard, 43 Me. 463.) And where the agent has stipulated that the agency will not be ter minated without notice, a violation of this agreement will not forfeit his right to all compensation, unless this is also stipulated. Where it is so stipulated and the for feiture is not out of proportion to the principal's loss, the stipulation will be respected. (Hunt v. Otis, 4 Metc. 463; Richardson v. Woehler, 26 Mich. 9o.) Equity will not enforce a forfeiture, a court of law may or ray not, according to the circumstances. (Hughes v. Wam sutta Mills, i i Allen, 2o1.) Where the agent acts for the adverse party, without the knowledge or consent of the principal, he is held to forfeit all right to compensation from his principal, as such action is a breach of the duty owing to the prin cipal. (Steiger v. Hollington, 17 Mo. App. 382; Walker v. Osgood, 98 Mass. 348; Bell v. McConnell, 37 0. St. 396.) And for the same reason he cannot recover from the second employer, if 'he was ignorant of the previous relation. (Bell v. McConnell, supra.) And if the sec ond employer was a party to the fraud upon the first principal, then his contract with the agent is void as against public policy. (Idem.) But where such double agency is fully known and approved by both principals, the agent may recover compensation from them both. (Adams Mining Co. v. Senter, 26 Mich. 73.) An agent is not entitled to pay for extra services, in the absence of a custom authorizing it, unless there is an express or implied promise to pay for such ser vices. (Mechem on Agency, Sec. 646.)