3 The mere possession of bills of lading of cotton confers no lien on the factors to whom it was shipped as against an attachment. Saunders v. Bartlett, 12 Heiskell, 316; Oliver v. Moore, 12 ib. 482; Chaffraix v. Harper, 26 La. An. 22. But delivery of cotton to a factor's agent and the placing it on the factor's drays gives such a lien as against an attachment put on the cotton while still on the drays. Burrus v. Kyle, 56 Ga. 24. - K.

It may be doubted, whether, in England, a factor can sell the goods, against the orders of the principal, even if the principal expressly refuses to pay or secure his debt to the factor. (j) Here, the factor certainly may sell enough to cover his balances, if the principal, after proper demand, refuses to pay or secure them; but the factor must protect the principal's interest, as to the time and manner of the sale. (k) And the Supreme Court of the United States denies that a consignor, having received advances, has any right, by any orders, to suspend or * control the factor's right of sale, except as to the surplus of the goods beyond the factor's advances or liabilities. (l) But instructions or an agreement as to this right of sale will be enforced. (ll) Nor need a factor make a sale; but after reasonable delay and endeavors to sell, he may maintain an action against his principal for his commissions or charges. (m) As to the measure of damages in actions against factors for wrongful sales, see second volume.

Possession is necessary to give a lien, and a broker has therefore no lien. (n)l In the transactions of business these relations are sometimes confounded, and it is not always easy to distinguish between the factor and the broker. The best test, however, is in the fact of possession; but even one who has possession may

(g) Nesmith v. Dyeing Co. 1 Curtis, 130.

(h) Bank of Rochester v. Jones, 4 Comst. 497.

(i) Elliot v. Bradley, 23 Vt. 217; Dixon v. Stansfield, 10 C. B. 398.

(j) See Smart v. Sandars, supra.

(k) Frothingham v. Everton, 12 N. H. 239; Parker v. Brancker, 22 Pick. 40; Marfield v. Goodhue, 3 Comst. 62; Blot v. Boiceau, 1 Sandf. 111, and 3 Comst. 78; Blackmar v. Thomas, 28 N. Y. 67. See ante, p. * 70, n. (y).

(l) Brown v. McGran, 14 Pet. 479. So Mooney v. Musser, 45 Ind. 115; Howard v. Smith, 56 Mo. 314.

(ll) Milliken v. Dehon, 27 N. Y. 364.

(m) Frothingham v. Everton, 12 N. H.

239; Upham v. Lefavour, 11 Met. 1:4. Dolan v. Thompson, 126 Mass. 183. See Strong v. Stewart, 9 Heisk. 137.

(n) See Jordan v. James, 5 Ham. 99, where the several classes of liens are discussed, and the cases cited. Hut it is of the very essence of a lien that possession accompanies it.

1 But a broker may have a lien for his commissions upon the proceeds of a sale remaining in his hands, although he cannot retain the amount of his entire claim against the owners. Barry v. Boninger, 46 Md. 59. And an insurance broker has a lien on policies of insurance in his hands or the proceeds of them for the balance due him for commissions and premiums. Fisher v. Smith, 4 App. (!as. 1.

sometimes be held to be a broker. (0) Neither can delegate his authority. (p) The broker may certainly be the agent of both parties, and often is so; but it would seem from the nature of his employment, that the factor can be, generally at least, the agent only of the party who employs him. The whole subject of the lien of a factor and the rules and principles applicable to it, are considered in our chapter on Liens; and the distinction between a factor and broker, in respect to the Statute of Frauds, is stated in the section on Bought and Sold Notes.

Neither has a right to his commissions, as a general rule, until the whole service, for which these commissions are to compensate, is performed. (q)1 But where the service is begun, and an important part performed, and the factor or broker is prevented by some irresistible obstacle from completing it, and is himself without fault, there it would seem that he may demand a proportionate compensation. (r)2 So a broker, employed to sell land and making

(o) Pickering v. Busk, 15 East, 38.

(p) Catlin v. Bell, 4 Camp. 183; Solly v. Rathbone, and Cockran v. Irlam, 2 M. &Sel. 298, n. (a.).

(q) Hamond v. Holiday, 1 C. & P. 384;

Dalton v. Irving, 4 C. & P. 289; Broad v. Thomas, 7 Bing. 99.

(r) Hamond v. Holiday, 1 C. & P. 384; Broad v. Thomas, 7 Bing. 99; Read v. Rann, 10 B. & C. 438.

1 Nor for unsuccessful efforts, unless the failure is due to the principal. Sibbald v. Bethlehem Iron Co. 83 N. Y. 378. But a real estate broker is entitled to his commissions if he procures a purchaser, although his principal concludes the sale himself, Timberman v. Craddock, 70 Mo. 638; Arrington v. Cary, 5 Baxter, 609; Dolan v. Scanlan, 57 Cal. 261; but such purchaser must be ready to carry out the terms agreed on between his principal and himself, Eraser v. Wyckoff, 63 N. Y. 445; Mc-Arthur v. Slauson, 53 Wis. 41; Hyams v. Miller, 71 Ga. 608; Kerfoot v. Steele, 113 Ill. 610; or be acceptable to him, Coleman v. Meade, 13 Bush, 358; nor can the principal, by changing such terms, prevent the recovery of such commissions, Bash v. Hill, 62 Ill. 216; Stewart v. Mather, 32 Wis. 344; or by a refusal to ratify a sale, Bailey v. Chapman, 41 Mo. 536; Cawker v. Apple, 15 Col. 141; Fiske v. Soule, 87 Cal. 313; Greenwood v. Burton, 27 Neb. 808; or otherwise preventing a sale, Phelps v. Prusch, 83 Cal. 626. If, however, a broker breaks off negotiations, his principal can afterwards renew and complete them without entitling the broker to a commission. Wylie v. Marine Bank, 61 N. Y. 415. - A broker to sell is also entitled to compensation when he finds one who makes a written contract for the property, Veazie v. Parker, 72 Me. 443; though never carried out. Pearson v. Mason, 120 Mass. 53, and though the sale falls through because the seller is unable to give a good title, Birmingham, etc. Co. v. Thompson, 86 Ala. 146; Cheatham v. Yarbrough, 90 Tenn. 77. - A broker, leaving copies of a written authority to procure a loan with several persons, one of whom without the broker's knowledge lends the money, is entitled to his commissions. Derrickson v. Quimby, 14 Vroom, 373. But where the broker's advertisement attracted a purchaser to whom the principal made a sale, the broker was held to recover not even his outlays, in Charlton v. Wood, 11 Heiskell, 19. - A broker to sell a colliery, who was to receive as a commission all he could get above a certain sum, was held entitled to such excess, although very largely above such sum. Morgan v. Elford, 4 Ch. D. 352. - A broker, in the absence of agreement, is entitled to the customary rate of commissions. Potts v. Aechternacht, 93 Penn. St. 138. One who renders services as a broker is not entitled to commissions unless employed by the principal to do so. Twelfth Street Market Co. v. Jackson, 102 Pa. 269; Coffin v. Linxweiler, 34 Minn. 320. See in general as to the right to commissions, 30 Amer. Law Reg. 114.