delivered the opinion of the court:
In this case, after the evidence was closed, the court instructed the jury that plaintiff' was not a factor, under the contract with Lillie, and held no lien upon the property, and that they must find for the defendant. If there was evidence-that plaintiff was a factor, or even if it tended to prove that he was, no matter how slight the evidence, plaintiff had the right to have it passed upon by the jury. If such evidence was before .the jury, the court transcended its authority by taking it from their consideration; and was such an. error as would require a reversal of the judgment.
It appears that plaintiff in error was employed by Lillie to sell his safes, at Chicago. By their agreement, plaintiff in error was to receive $1,200 a year out of the net proceeds of the business, and to receive a sum equal to one-half of all commissions at twenty-five per cent, on the sales. If, however, the sales should fail to allow a dividend of one thousand dollars over and above all expenses and salaries, including the twelve hundred dollars, then plaintiff in error was to receive, out of the net proceeds, one hundred dollars in addition to his half of such proceeds. Plaintiff was to select and lease a store in Chicago, take charge of the same, hire clerks and workmen, conduct the business under Lillie, and the expenses to be paid out of the business.
*103The lease of the business house selected by plaintiff* in error, was taken in the name of Lillie. The policy of insurance was effected in the name of plaintiff in error, covering the stock in the store. Safes were shipped by Lillie to, and were received by him, and Lillie, at different times, drew drafts for various sums, in the aggregate larger than the amount of the sales, which he accepted. He received of Lillie, in safes and otherwise, the sum of §21,345.91; and advanced to him by accepting drafts, the sum of §23,140.50; leaving a general balance in his favor of the sum of $1,795.58. Hatch having attached the safes in possession of plaintiff in error, he thereupon brought this action^ to recover damages for the alleged trespass in seizing the safes under the attachment.
If, under these facts, plaintiff in error was a factor, he held a lien on the property, which authorized him to hold it until his lien was discharged. Then, was he a factor, and did he hold the property in dispute in that capacity ? Jacob, in his Law Dictionary, defines a factor to be the agent of a merchant living abroad. He says a factor is authorized to act by letter of attorney, with a salary or allowance for his care. Bouvier defines a factor to be “An agent employed to sell goods or merchandize, consigned or delivered to him by or for his principal, for a compensation, usually called factorage or commissicn.” Wharton, in his Law Lexicon, gives substantially the same definition. A factor is, then, the agent, for. the sale of goods or merchandize for his principal, for com-! pensation or a commission. Bor does it seem to make any difference, that he is compensated by a salary or a percentage on the sales. Bor does the name make any difference, but-it is the nature of his employment that constitutes him the factor. Bo reason is perceived for holding that plaintiff in error was not a factor.
There seems to be no doubt that a factor, or agent of that character, has a lien on the property entrusted to his custody for his commissions, against his principal as well as others. In Parsons on Contracts, vol. 1, p. 84, it is said, a factor has *104a lien on the property in his hands, for his commissions, advances and expenses. Then there seems to be a lien on ' the goods, not only for Ms commissions, but for expenses in conducting the business, and for advances made to the principal, or in the regular course of the business. Ho distinction is perceived between a lien for special advances, or general advances on account of business. Hor do the books seem to limit the lien to property acquired with the money advanced, but it seems to extend to all of the property, in his hands, against third persons. Ho hardship can accrue from the rule as between the principal and agent. It is reasonable and just. And as between the agent and third parties, there can be no injustice, as the 'agent has the exclusive possession, which is the indicia of ownership, and hence no one can be misled into giving others credit to the true owner, on the property.
k In this case, the property was taken from the possession of plaintiff, without satisfying Ms lien. Hor does it change the relations of the parties, or vary their rights and duties, by taking the lease of the house in the name of Lillie. Plaintiff was still the agent, to sell the goods on commission, and not a mere clerk. This in no way gave to third persons any claim paramount to plaintiff’s lien. He was in the actual possession, and that was at least notice to the world, of his rights in the property. It became the duty of defendants in error, to inquire and inform themselves of his rights, and to have paid him the sum for which he held his lien, before they could levy upon the property, and take it out of his possession.
The law is well settled, and the books all concur in holding that a factor has a special property in the goods of his principal, so far as they come to his hands. And it is by virtue of his lien. This special property gives him the right to sue for and recover it, if illegally dispossessed, or to maintain trespass, for injury it may sustain by a wrong doer, precisely as if he was the general owner. Hor can a tort feasor 1 question his title.
*105The instruction was clearly wrong, as it took the whole case from the jury, when there was evidence for their consideration. The judgment of the court below must therefore be reversed, and the case remanded.
Judgment reversed.