THE LIBRARY

THE UNIVERSITY

OF CALIFORNIA

LOS ANGELES

SCHOOL OF LAW

O. >k A^* A^t.-*>^>

(Lif(.C. ^^^

sKLKc iioN nr r \<ks

A ( i 1 : N C V.

KlCLNi; WAMKAliill, 1. 1. P.,
pHoressoK or law la habtabo vMiTBBtiTT

CAMBRIDGE
HARVARD UNIVERSITY PRESS

ri; i;i ACE.

In selectini^ and arranj^itig these ca>L'S, the purpose has
been to furnish material fur the »tuily of the principal
topics of Agency, including some topics frequently classed
under the head of Master and Servant. As far as practi-
cahle, use has been made of those famous cases with whicli
it is peculiarly important that the student should become
acquainted. The order of the chapters and of the sections
has been determined, not by the vie^vs of analyticiil jurists
or of codiliers, but by tiie sup|>osed convenience of stu-
dents ; and consequently the plan has been to place in close
juxtaposition topics that throNv light upon one another,
and to present the easiest and the most fundamental topics
as early as possible. The cases as to each topic have been
arranged chronologically. The statements by the report-
ers, and the opinions of the judges, have been reprinted
in full, with exceptions indicated in the foot-notes; but
the arguments of counsel have usually been omitted.
The citations in the foot-notes have been intended to
include only such cases as may profitably be examined
by students.

Thanks are due to Professor "William A. Keener, of the
Columbia Law School, and Professor Jeremiah Smith, of
the Harvard Law School, for cordial permission to use lists
of cases prepared by them. It is matter of regret that it

671018

IV PREFACE.

is impossible to acknowledge, otherwise than in the most
general terms, indebtedness to the very numerous other
workers — counsel, judges, reporters, digesters, text-writers
— from whose labors, covering several centuries, the com-
piler has derived aid at every step.

EUGENE WAMBAUGH.
Afbil 23, isdaw

TABLE OF SUBJECTS.

Sectiox
Section

II.

Section III.

Section IV.
Section V.

CHAPTER I.

INTRODUCTORY TOPICS.

PAQB

Qui facit per alium facit per se i

Who can be an Agent.

(A) General Principles 2

(B) Infancy 7

(Z)) The Statute of Frauds . 10

Who can be a Principal.

(A) General Principles 15

(B) Infancy 17

What Acts can be done through an Agent . . 33
How AN Agent is Appointed.

(A) General Principles 42

(5) Appointment to execute an Instrument

within the Statute of Frauds .... 52

CHAPTER II.

THE AGENT'S POWER TO SUBJECT HIS PRINCIPAL TO LIABILITIES.

Section I. The Rise of the Doctrine 79

Section II. Torts 95

Section III. Contracts 253

Section IV. Misrepresentation, Fraud, and kindred Topics

COMMON to Torts and Contracts 358

Section V. Crimes 429

Section VI. Admissions 447

CHAPTER III.
THE AGENT'S RESPONSIBILITY TO STRANGERS.

Section I. Torts 4fi9

Section II. Unauthorized Contracts 494

Skction m. Authorized Contracts for a disclosed Principal 525

V^l

TABLE OF SUBJECTS.

Section I.
Section II.
Section III.

CHAPTER IV.

PARTIES TO WRITINGS.

Instruments neither Negotiable nor Sealed

Sealed Instruments

Negotiable Instruments

rAOB

548
583
601

CHAPTER V.
UNDISCLOSED PRINCIPAL.

Section I. Whether the Principal can hold the Third

Party 627

Section II. Whether the Third Party can hold the Prin-
cipal 636

Section III. Whether the Third Party can hold the Agent 658

Section IV. Whether the Agent can hold the Third Party 664

Section V. Defences.

(A) In an Action brought by the Principal

against the Third Party 673

(i>) In an Action brought by the Third Party

AGAINST the PRINCIPAL 692

AGAINST THE AgENT 723

(D) In an Action brought by the Agent against

THE Third Party 729

CHAPTER VI.

THE PRINCIPAL'S DUTIES TO THE AGENT.

Section I. Reimbursement or Indemnity 741

Section II. Responsibility for Injuries.

(A) The Fellow-Servant Rule 773

{B) Suitable Appliances, Agents, Premises,
AND Regulations. And herein of the
Vice-Principal Doctrine 824

CHAPTER VII.

THE AGENT'S DUTIES TO THE PRINCIPAL.

Section I. Obedience, Diligence, and Skill 882

Section II. Loyalty 904

TABLE OF SUBJECTS.

Vll

CHAPTER VIII.
DELEGATION BY AN AGENT.

Section I. The Rule

Section II. Exceptions, real or apparent

PAGE

928
935

CHAPTER IX.

TERMINATION OF AGENCY.

Section I. Modes of Termination.

(^4) Revocation

(B) Death

953
957
962
973

CHAPTER X.

RATIPTCATION.

Section I. Early Authorities 986

Section II. The Requisites of Ratification 989

Section III. The Possibility of Ratification as affected by
the Rights of Persons other than the Quasi-
Principal 1034

INDEX 1059

TABLE OF CASES.

[In addition to the cases reprinted in the text, this Table includes the cases quoted ic
the foot-notes.]

Abbey v. Chase 592, n.

Adanison r. Jarvis 754

Addison v. Gandasequi 52"J

Ahern v. Baker 'J12

Alford V. Eglisfield 548

Aldrich v. B. & W. Railroad Co. . 202

Allen V. Merchants' Bank .... 93tj

Ancona v. Marks 1014

Anderson v. Sanderson 450

Anonymous (15 East, 407) . . . 279, n.

(Fitz. Abt., Annuitie, pi. 51) . 1

(Godbolt, 109, pi. 129) . . . 987

(12 Mod. 514) 87

(IStr. 527) 92

(Y. B. 7 H. IV. 34) .... 987

V. Harrison 953

Armory v. Delamirie 92

Armour v. Michigan Central Rail-
road Co 418

Armstrong v. Stokes 704

Ashworth v. Stanwix 795

Atkinson v. Cotesworth 729

Attwood V. Munnings 286

Audley v. Pollard 988

Baines v. Ewing 334

Baird v. Shipman 491

Baldwin v. Potter 905, n.

Ballou V. Talbot 494

Baltimore & Ohio Railroad Co. v.

Baugh 872

Bank of New York v. Bank of Ohio 606
Barlow *;. Congregational Society . 609

Barnard v. Coffin 934^ n.

Barr v. Lapsley 42

Bartholomew v. Dighton .... 17
Bartonshill Coal Co. v. Reid . . 793, n.
Barwick v. English Joint Stock Bank 412

Bateman v. Phillips 548

Batty V. Cars well 266

Baxter v. Bnrfield 957

Beaulieu v. Finglam 79

Beckham v. Drake 647, n.

Bell V. Josselyn 478

V. McConnell 913

Bennett r. Bayes 479

Bentley v. Doggett 345

Bibb V. Allen 768, n.

Biggs V. Evans 355

Bird V. Boulter 12

V. Brown 1040

Bhicknall v. Parish 62

Blaikstone v. Buttermore .... 983

Bliss V. Sneatii 739

Bodine c. Killeen 30

Bolton Partners v. Lambert . . . 1053

Booth L-. Mister 936

Borcherling v. Katz 647

Borries v. Imperial Ottoman Bank . 678

Boson V. Sandford 82

Botteler v. Newport 18, n.

Boulton V. Arlsden 84

Bowler v. O'Connell 248

Bradstreet r. Baker 598

Brady v. Todd 328

Bray v. Kettell 559

Bridges v. Savage 906, n.

Brinley r. Mann 593

Britisli Mutual Banking Co. i'. Cham-
wood Forest Ry. Co 425

Brodeur v. Valley Falls Co. . . . 820

Brook r. Hook 1024

Brookshire r. Brookshire .... 953

Brucker v. Fromont 95

Burns v. Poulsom 214

Bush V. Steinman 98

Byington v. Simpson 582

Calder v. Dobell 564

Camden Safe Deposit and Trust Co.

V. Abbott 349

Campbell v. Reeves 933, n.

Carpenter v. Farnsworth .... 618

Caswell V. Cross 226

Catlin V. Bell 929

Chandler v. Coe 573

Chapman v. N. Y. C. Railroad Co. . 183

Chase v. Debolt 660

Chastain )•. Bowman 3

Child V. Morley 741

TABLE OF CASES.

Chisholm v. Doulton 438, n.

City Bank v. Barrow .... 253, n.

Clarke v. Holmes 806

Cleveland, Columbus, & Cincinnati
liailroad Co. v. Keary . . . 829, n.

Clifford V. Burton , . 451

Clough I'. Clougli 68

Cobb V. Knapp 726

V. Superior Court 5

Coben v. Kittell 902

Collen V. Wriglit 506

Combes' Case 33

Commercial Bank v. Norton . . . 939
Commonwealtli v. Briant .... 445

V. Gillespie 447, n.

V. Morgan 439

V. Nichols 435

V. Wacbendorf 438, n.

Cooke V. Esiielby 687

Corcoran v. Holbrook 857

Cornfoot v. Fowke 358

Cothay v. Fennell 628

Covell f. Hart 545

Craker v. C. & N. W. Ry. Co. . 165, n.
Cream City Glass Co. v. Friedlander

558, n.

Cribben v. Deal 74

Crispin v. Babbitt . 859

Culien V. Thomson's Trustees . 489, n.
Curtis V. Williamson 713

D'Arcy v. Lyle 747

Darling v. Stanwood 938, n.

Davenport v. Riley 659

Davis I'. Hamlin 917

Davison r. Donaldson .... 720, n.

De Bussche i-. Alt 934, n.

Delaney v. Rocbereau .... 487, n.

Dempsey v. Chambers 1030

Denny v. Manliattan Company . . 473

Dickerman v. Asliton 67

Dodge v. Hopkins 1044

Dorchester & Milton Bank v. New

England Bank 942

Dord V. Bonnaffee 1004

Drew V. Nunn 967

Duncan v. Beeson 760

V. Hill ^760

Dynen v. Leach 833, n.

Edmunds v. Bushell 331

Edwards r. Golding 686, n.

Elbinger Actien-Gesellschaft v. Claye 542
Eldridge v. Atlas Steamship Co. . 868
Ellis V. Sheffield Gas Consumers Co. 148

Emerson v. Blonden 9

Emmerson v. Heelis 53

Empire State Ins. Co. v. American

Central Ins. Co 917, n.

Evans v. Davidson 231

V. Evans 550

Page

Fairlie v. Fenton 561

V. Hastings 447

P'arebrother v. Simmons .... 11
Farwell v. Boston & Worcester Rail-
road Corp 786

Feltus V. Swan 489

Fenn v. Harrison (3 T. R. 757) . . 254
— V. Harrison (4 T. R. 177) . . 259

Firbank v. Humphreys 517

Fisher v. Cuthell 1084

V. Marsh 558, n.

Flike V. Boston & Albany Railroad

Co 853

Ford V. Fitchburg Railroad Co. . . 850

Forney v. Sliipp 723

Foster v. Bates 1000

Freeman r. Cooke 51, n.

V. Rosher 1003, n.

Gadd V. Houghton 578

Gannon r. Housatonic Railroad Co. H03

Gardner v. Baillie 260

1-. Davis 666

V. Gardner 61

Garth v. Howard 452

George v. Clagett 674

Gibson f. Erie Ry. Co 841, n.

V. Winter 730

Gilshannon v. Stonv Brook Railroad

Corp. . . . '. 794

Grammar i". Nixon 93

Grant v. Beard 1021

V. Norway 368

Great Western Railway Co. v. Willis 456
Greenfield Bank r. Crafts . . . 1026, n.

Griggs V. Griggs 960

Guerreiro ?•. Feile 282

Gurratt v. CuUum 628, n.

Gwilliam r. Twist 951

Hagedorn i-. Oliverson 1037

Haluptzok V. Great Northern Ry. Co. 947

Hardy v. Waters 22

Harper i-. Little 958

Hatcli V. Taylor 291

Hathaway v. Johnson 415

Hawtayne v. Bourne 301

Hazard v. Treadwell 253

Heald v. Kenworthy 692

Henchman v. Roberts 28

Hern v. Nichols 90

Hibblewhite v. McMorine .... 58

Higgins V. Senior 654

Hill 1-. Caverly 471

V. Morey 149

Hobbit V. L. & N. W. Ry. Co. . . 184

Hogg V. Snaith 269

Hopkins v. Mehaffy 590

Hornby v. Lacy 675

Horner i'. Lawrence 483

Hough I'. Railway Co 841, n.

Houston & Great Northern Railroad

Co. V. Miller 81?

TABLE OF CASES.

Page

Howard v. Baillie 261

Howe i\ Newmarch 18-1

Howe Macliine Co. v. Clark ... 462

Humble V. Hunter 629

Hunt V. Rousmanier 974

Huntington v. Knox 634

Hurst V. Holding 744

Hutcliinson i*. Wheeler 725

V. York, Newcastle, & Ber-
wick Ry. Co 828, n.

Hyde v. Johnson 37

Illinois Central Railroad Co. v. Latham 2o0

Insurance Co. v. Davis 962

Irvine v. Watson 715

Isberg V. Bowden 734

Isham V. Burgett 656

Jenkins v. Hutchinson 503

Joel V. Morison 117

Johnson v. Barber 475

v. Boston Tow-boat Co. . . . 862

V. Dodge 56

V. Johnson 960

Johnston i'. Kersliaw 896

Jones V. Littledaie 552

Joseph V. Knox 664

Kayton v. Barnett 652

Kelner v. Baxter 1016

Kendall v. Hamilton 702, n.

Kindig v. Marcli 983

Kingsley v. Davis 702

Kirkpatrick v. Stainer 631

Kirkstall Brewery Co. v. Furness

Railway Co 458

Knapp V. Alvord 979

Knaus v. Krueger Brewing Co. . 917, n.
Kroeger v. Pitcairn 509

Lane v. Cotton 468

Lanlarazon's Case 986

Laugher v. Pointer 105

Lawrence v. M'Arter 18

V. Shipman 210

Leadbitter v. Farrow 602

Lerned r. Johns 645

Lewis V. Nicholson 504

V. Read 1001

Liebsclier v. Kraus ...... 624

Lilly V Smales 524

Limpus V. London General Omnibus

Co 170

Little Miami Railroad Co. v. Stevens 824

Long V. Colbum 601

Loomis V. N. Y., N. H., & H. Railroad

Co 464

V. Simpson 931

Lovell V. Howell 810

Lnbv V. Hudson River Railroad Co. 455

Page

Ludwig v. Gillespie 672

Lux V. Shipman 210

McGilvray v. West End St. Ry. Co. 251

Mclntyre v. Park 993, n.

Maclean v. Dunn 993

McManus r. Crickett 102

Maitland v. Martin 762

Marshall, In re 935

Martin ;•. Great Falls Mfg. Co. . . 288

V. Temperley 129

May V. Bliss 1-38

Meader v. Page 44

Meehan i\ Forrester 1003, n.

Meek v. Wendt 521

Membery v. Great Western Ry. Co. 871, n.

Merrill v. Kenyon 720

Merryweather v. Moore 924

Michael v. Alestree 82

Michell V. Allestry 82, n.

Michil V. Alestree 82, n.

Middleton v. Fowler 86

Miller y. Lea 691, n.

Milhken v. Coombs 990

Mitchell V. CrasswuUer 144

.Mohr V. Miesen 769

Moir V. Hopkins 155

Morier v. St. P., M., & M. Ry. Co. . 238
Morse y. Connecticut River Railroad

Co 454

Murphey v. Caralli 180

Murray v. Currie 206

V. South Carolina Railroad

Co 777

Mussey v. Beecher 311

Nelson v. Powell 092

New York and New Haven Railroad

Co. V. Schuyler 387

Nickson v. Brohan 90

North River Bank r. Aymar . . . 303

Northwestern Distilling Co. v. Brant 596

Opie V. Serrill 892

Osborne v. Morgan 484

Oulds V. Sansom 23

Owen V. Gooch 525

Packet Company v. Clough . . . 459

V. McCue 805

Page V. Methfessel 47

1-. Webb 923

Palliser i;. Ord 928

Parker v. Brancker 887

Paterson v. Gandasequi 527

V. Tash 253

V. Wallace 828, n.

Patten v. Rea 157

Patterson v. Lippincott 514

Peck V. Harriott 283

Peele v. Hodgson 636

TABLE OF CASES.

Page

Pentz V. Stanton 643

People V. Koby 442

Peto V. Hague 450

Phelon r. Stiles 224

Phelps V. Sullivan 72

Philadelphia & Reading Railroad Co.

V. Derby 139

Philadelphia, Wilmington & Balti-
more Railroad Co. v. Cowell . . 1008
Phosphate of Lime Co. v. Green 1003, n.

Pickard v. Sears 51, n.

Pickering v. Busk 272

Pike V. Ongley 662

Pole V. Leask 51, n.

Polhill V. Walter 496

Portuguese Consolidated Copper

Mines, I?i re 1058, n.

Poulton V. L. & S. W. Ry. Co. . . 191

Price V. Taylor 604

Priestley v. Fowler 773

Priestly v. Fernie 698

Quarman v. Burnett 125

Quinlan v. Providence Washington
Ins. Co 350

Rabone v. Williams 673

Railton v. Hodgson 636

Railway Co. v. Ranney .... 829, n.

Rames v. Machin 18

Rann v. Hughes 52, n.

Read v. Anderson 765

Rechtscherd v. Accommodation Bank 900
Reedie i'. L. & N. W. Ry. Co. . . 134

Rex V. Almon 429

». Medley 432

Reynell v- Lewis 51, n.

Rh'oades i'. Blackiston 736

Right d. Fisher v. Cuthell .... 1034

Robertson v. Cloud 955

Robinson v. MoUett 908

Rogers v. Ludlow Mfg. Co. • . 866, n.

Roosevelt v. Doherty 681

Rossiter v. Trafalgar Life Assurance

Association 933, n.

Rounds v. D., L. & W. Railroad Co. 218
Rourke v. White Moss Colliery Co. 229

Ruddiman v. Smith 237, n.

Rutland & Burlington Railroad Co.

i\ Lincoln 1007

Ryan v. C. & N. W. Ry. Co. . . . 800

Sadler v. Henlock 152

Schmaltz v. Avery 631

Scott V. Surman 628, n.

Scrimshire v. Alderton 627

Seiple V. Irwin 322

Serle de Lanlarazon's Case . . . 986

Seymour i'. Greenwood 166

Short V. Spackman 667

Simon v. Motives 658

Sims V. Bond 666, n.

Page

Singer Mfg. Co. v. Ralm .... 240

Skipp V. Eastern Counties Ry. Co. . 831

Sleath V. Wilson 122

Smith V. Cologan 989

I'. McGuire 324

V. Steele 808

Smout V. Ilbery 499

Staples V. Schmid 243

Stead V. Thornton 15

Stebbins v. Walker 684

Stephens v. Badcock 929

Stetson V. Patten 992

Stevens v. Woodward 234

Stewart v. Woodward 342

Stinchfield v. Little 586

Stone V. Cartwright 470

Storey v. Ashton 204

Strasser r. Conklin 1028

Sturdivant r. Hull 619

Sumner v. Conant 24

Sutton, Ex parte 935

Swainson v. North-Eastern Ry. Co. 813

Switzer v. Connett 902, n.

Taft V. Brewster 585

Tarrant i'. Webb 834

Temple r. Pomroy 319

Tenant v. Elliott 904

Thompson v. Havelock 907

Thomson ;•. Davenport 637

Thorner. Deas ......... 883

Thorold v. Smith 88

Toledo, W. & W. Ry. Co. v. Harmon 198

Trueman v. Loder 578, n.

Tucker Mfg. Co. v. Fairbanks . . 614

Turberville v. Stampe 84

Udell V. Atherton 374

United States Telegraph Co. v. Gil-

dersleve 668

Upton V. Suffolk County Mills . . 316

Vose V. Dolan 65

Wabash Rv. Co. v. McDaniels . 867, n.

Walsh I'. Whitcomb 973

Walter v. James 1049

Waples V. Hastings 20

Ward V. Evans 87

V. Smith 339

Watkins v. Vince 7

Watson V. King 979, n.

Watteau r. Fenwick 654

Wayland's Case 83

Weber r. Weber 488

Weed V. Panama Railroad Co. . . 162
Weisbrod v. C. & N. W. Ry. Co. . . 28

Weyland v. Elkins 104

Whatman r. Pearson 196

White V. Duggan 70

V. Sanders 1003

TABLE OF CASES.

XIU

Page
Whitehead v. Greetham .... 885

V. Tuckett 277

Whitfield V. Lord Le Despencer . . 469
Whiting V. Massachusetts Mut. L.

Ins. Co 1051

Wliitley Partners, In re u'J

Wiiittingharn's Case 17

Widrig V. Taggart 7

Wilkinson v. Coverdale 882

Wilks V. Back 583

Williams v. North China Ins. Co. 1040, n.

Williamson r. Barton 535

Wilson r. Brett 890

V. Merry 842

V. Tumman 997

V. Wilson 902, n.

Wiltshire v. Sims 268

Page

Wolff w. Koppel 893

Wood V. Cobb 190

Woodley v. Metropolitan District

Ky. Co 833, n.

Worthington v. Cowles 640

Wright V. Dannah 10

V. Wilcox 118

Y. B. 30 E. I. 126 .
Y. B. 2 H. IV. 18 .
Y. B. 7 H. IV. 34 .
Y. B. 21 H. VI. 31

Zouch V. Parsons

. 79
. 987
18, n.

18, n.

CASES ON AGENCY.

CHAPTER I.
INTRODUCTORY TOPICS.

SECTION I.

Quifacit fer aliumfacit per se.

ANONYMOUS.

Common Pleas. 1304-5.

[Fitzherbei-t's Abridgment, Annuitie, pi. 51.]

AiJOJTJiTY against the heir upon a deed of gi-ant made by the father
antil the plaintiff^ was advanced bj'the grantor or his heirs to a suitable
benefice.

Tilton. After the death of our father our mother gave to the plaintiff,
by our procurement and to discharge us, the deanery of T., of which
the plaintiff is still seised.

Herle. The writing is, until he be advanced " by the grantor or his
heirs," and so we are not, &.Q.

Hengham [C. J.]. Qui per alium facit per se ipsum facere videtur,
and have care that he answer over.

Herle. The mother of the defendant gave us the benefice for our
service, and not in discharge of the annuit}'. Read}'.

And the other side said the contrary', &c.

1 Among the rules appended to the Sext, promulgated hy Pope Boniface VIII. in
1298, are the following: " lxvii. Quod alicui suo non licet nomine, nee alieno lice-
bit. Lxviii. Potest quis per alium, quod potest facere per se ipsum. . . . lxxii.
Qui facit per alium, est perinde, ac si faciat per se ipsum." Sexti Decretalium, lib. v.
tit. xii., De regulis juris, according to the text of Friedberg's edition of the Corpus
Juris Canonici, vol. II., column 1124. See 1 Pollock & Maitland's History of English
Law, 9.3, 196. — Ed.

- Fitzherbert says defendant ; but that appears to be an error. — Ed.
'f- 1

3 WHO CAN BE AN AGENT. [CHAP. L

West's Symboleography, part I., sec. 3, Of the Fact 0/ 3Ian (1590) :

Now the fact of that person, and the person himselfe, are to be
considered. The fact is the covenant or agreement, or the offence,
which two are the onely way making obhgations.

The person is hee which either agreeth or offendeth, and beside him
none other.

And both may be bound either mediatly or imraediatly.

Immediatl}', if he which is bound do agree.

Mediatly, wlien if he which by nature differeth from him, but not by
law, whereby as by some bond hee is fained to be all one person, doth
contract or offend, of which sort in some cases be those which be in our
power, as a wife, a bondman, a servant, a factor, an Atturnej', or Pro-
curator, exceeding their authoritie.

SECTION 11.

Who can he an Agent.
(^) General Principles.

Perkins' Profitable Book, sees. 184-187 (1532) : —

184. All such persons as can grant for themselves maj' make livery
of seisin for themselves, viz. in their own right, and as servants to
others, in the same manner and form as they may grant, &c., mutatis
mutandis, &c. , . .

185. And as to such persons as cannot make livery of seisin in
their own right, but ma^' as servants to others, know, that a monk,
friar, or canon, &c., professed,^ or a married woman, cannot make
livery of seisin for themselves, viz. in their own right ; and if they
make any liver}- of seisin in their own right, it is void ; because per-
sons professed in religion cannot have any land in their own right,
except he be severed from the same house of religion, &c.

186. And although a married woman ma}' be seised in her own
right with her husband, j'et livery of seisin made hy her alone, without
the agreement of her husband, is void ; insomuch that notwithstanding
such livery of seisin, her husband and she may have an assise, if he be
seised of the freehold in her right : but in such case, if the husband be
seised in his own right, then notwithstanding such livery of seisin made
by his wife, he shall have an assise in his own name, &c.

187. But if a monk or other person professed in religion, or a feme
covert, make livery of seisin according to the deed of a person able to
make a feoffment in his own right, and by a letter of attorney made to

* On civil death, see 1 Pollock and Maitland's History of English Law, 4 16-4 "21. — Ed.

SECT. II.] CHASTAIN V. BOWMAN. 3

him or her bj' the same feoffor so to do, then such feoffment is good ;
because the feoffee in such case is not in in the land by him or her that
made the livery of seisin, but by the feoffor. . . .

Coke on Littleton, 52 a (1628) : —

Few persons are disabled to be private attorneyes to deliver seisin ;
for mounks, infants, fem coverts, persons attainted, outlawed, excom-
municated, villeins, aliens, &c., ma}- be attorneyes. A fem may be an
attorney to deliver seisin to her husband, and the husband to the wife,
and he in the remainder to the lessee for life.

Coke on Littleton, 187 b (1628) : —

Albeit baron and feme (as Littleton here saith) be one person in
law, so as neither of them can give an}- estate or interest to the other,
yet if a charter of feoffment be made to the wife, the husband as attur-
ne}' to the feoffor may make liverie to the wife ; and so a feme covert,
that hath power to sell land by will, ma}' .sell the same to her husband,
because they are but instruments for others, and the state passeth from
the feoffor or devisor.

CHASTAIN V. BOWMAN.

Court of Appeals of South Carolina. 1833.

[I mil's S. Car. Law, 210.]

Tried before Mr. Justice Evans, at Abbeville — Spring Term, 1833.

This was an action on the case, against the defendants as common
carriers on the Savannah River, for a loss sustained by the burning of
the plaintiff's cotton on board their boat. The boat was passing down
the river when the plaintiff came to a landing, and asked if it could carry
his cotton. The patroon (a slave belonging to one of the defendants)
answered that it could. The cotton was received, and was burnt on
board the boat before it reached Augusta. It w-as proved that the de-
fendants had given general instructions to their patroons to take in
freight whenever it could be had, and that, in one instance, one of the
defendants had received pay for freight engaged by his patroon. There
was also some evidence to show the general custom of the river. Some
witnesses proved that it is the custom to allow patroons to take in
freight generally, and others, that they are only allowed to receive
freight when a boat is not fully laden.

The presiding judge charged the jury that the defendants were not
liable unless the patroon was his master's agent, and authorized to take
in freight ; that the authority might be proved by showing that such
was the custom of boat owners, or by proving that the defendants had
given such authority ; that to establish a custom, it must be proved to
be universal ; that a slave might be the agent of his master, and, if his
agency was established, the master was bound ; and whether the agency

4 CHASTAIN V. BOWMAN. [CHAP. I.

of the slave was established in this case, was a question submitted to
their decision. The jury found for the plaintiff, and the defendants
appealed, and move for a new trial on the ground of error in the charge
of the presiding judge.

Johnson, J., delivered the opinion of the court.

From the instructions given to the jury, it is more than probable that
they found tlie verdict on the ground that the defendants had constituted
their patroon, tlie slave Jaclc, their agent to contract with the plaintiff
for carrying his cotton, and on that ground it can be well sustained.

It is not questioned that a master may constitute his slave his agent,
and I cannot conceive of any distinction between the circumstances
which constitute a slave and a freeman an ogent, — they are both the
creatures of the principal, and act upon his authority. There is no con-
dition, however degraded, which deprives one of the right to act as a
private agent ; the master is liable even for the act of his dog done in
pursuance of his command. Two witnesses. Beck and Eaton, prove that
defendants had given general instructions to their patroons to procui'e
freight whenever they could, and in one instance it is shown that one of
the defendants received the price of freight on produce so received and
carried bj* the patroon, a distinct recognition of their authority to con-
tract for them ; and there is not a tittle of evidence that this authority
was ever rescinded. The authority was general as to that particular
business, and the contract to carry was directly in pursuance of it.
The defendants were therefore bound.

The proof of the custom appears to me to have been too equivocal to
have supported the verdict on that ground alone. To make a good
custom it must be proved to be general ; and if the proof had l)cen that
those concerned in the navigation of the Savannah River had, from time
immemorial, authorized and permitted their slave patroons to contract
for carrying freight, the defendants would have unquestionably been
bound by it ; but the proof here, with the exception of one witness, is
confined to particular instances, and it is not very obvious that that
witness clearly understood what is meant by a general custom.

Motion dismissed.

Harper, J., absent.

Wiirdlaw, for the motion.
Calhoun, contra.

SECT. II.] COBB V. SUPERIOR COURT OF GRAND RAPIDS.

COBB, Relator, v. JUDGE OF THE SUPERIOR COURT
OF GRAND RAPIDS.

Supreme Court of Michigan. 1880.

[43 Mich. 289.]

Mandamus. Submitted April 13. Decided April 14.

Smiley^ for relator.

Maher^ for respondent.

Marst(in, C. J. In a cause pending in the Superior Court of Grand
Rapids some of tlie defendants appeared b}' an attorney and afterwards,
at tlieir request and witli the consent of their attorney, a substitution
was made under which a third person not an attorney of the court
appeared in the cause as their agent. The present motion raises the
right of a party to appear in a court of record by an agent who is not
an attorney duly licensed to practise as such. It was claimed on the
argument that parties have such right under sec. 24, art. vi. of the
Constitution.

Under the legislation in force at the time of the adoption of the Con-
stitution no person was permitted to practise as an attorney or coun-
sellor at law, except in the county court, or as a solicitor or counsellor
in chancery, unless approved by the court for his good character and
learning, and duh* admitted.

The Supreme Court was authorized to grant to any citizen of the
State, of good moral character and of the age of twenty-one years, a
license to practise as an attorney, upon an examination, if satisfied
that the applicant possessed sufficient legal learning and ability to dis-
charge the duties of such office. Such attorney is required to take the
constitutional oath of office, and may be removed or suspended by the
several courts in which he is authorized to practise. 2 Comp. L. § 5622
et seq. These and other provisions then and still in force show how
carefully the right to practise as an attorney was guarded, not in the
admission to practise alone, but in regard to their standing and retain-
ing such rights thereafter. This legislation and our entire practice
relating to attorneys has always been observed, and was never sup-
posed to conflict in any way with the constitutional provision referred
to. Our rules of practice in reference to the service of papers are
framed upon the same theory, and do not recognize the right of parties
to appear by agents or persons who are not attorneys and solicitors of
the court, and we are of opinion that the word " agents" as used in the
Constitution does not give the broad authority claimed by the respond-
ent in this case. The Constitutional Debates referred to on the argu-
ment throw no real light upon this question.

If the word " agent" as used in the Constitution, is not to be con-
strued as synonymous with the word " attorney," what is to be the

6 COBB V. SUPERIOR COURT OF GRAND RAPIDS. [CHAP. L

result? Parties may appear by agents possessing no legal qualification
or even ordinary intelligence, and of the worst possible character; tliey
ma}* be minors, and may even be persons who liave been disbarred and
removed bj' this court from practising as attorneys and solicitors.
They could not practise as attorneys, po'ssessing neither the legal nor
moral qualifications for such a position, and yet they could appear as
agents. They would possess the rights of attorneys, but not be subject
to the responsibilities ; their removal by the court, if they could be
removed, would be a mere idle ceremony. Litigants might again em-
plo3' them and authorize them to appear and represent their interests,
so that persons who could not practise as attorne3's could as agents,
with equal rights and powers. Such could not have been the intention
of the fraraers of our fundamental law, or of the people in adopting it.

There are still additional reasons for this view. Attorneys are
licensed because of their learning and abilit}', so that they may not
only protect tlie rights and interests of their clients, but be able to assist
the court in the trial of the cause. Yet what protection to clients or
assistance to courts could such agents give? They are required to be
of good moral character, so that the agents and oflficers of the court,
which they are, may not bring discredit upon the due administration of
the law ; and it is of the highest possible consequence that both those
who have not such qualifications in the first instance, or who having
had them have fallen therefrom, shall not be permitted to appear in
courts to aid in the administration of justice. One of the principal
powers possessed b}- courts for the protection of the public, and to
maintain the high standing, character, and reputation of the bar, is the
right to expel members who have been shown guilty of immoral acts,
thus rendering them unworthy to longer retain their position as officers
of the court. This court has had occasion heretofore to disbar attor-
neys convicted of crime, or shown guilty of some serious offence. Such
persons can no longer a[)pear as attorneys in any court of record, and
it is equally clear that they would have no right to appear, and should
not be permitted to represent an}' person in court, either as attorne3-s,
agents, or otherwise. If the}' have such power or right their position is
better than before, and the judgment of this court is practicall}' of but
little force or effect. An examination of the opinions of this court
in the Matter of Mills, an attorney, 1 Mich. 392, and of the People v.
May, 3 Mich. 598, will show the importance of this question.

The writ must issue as pra^'ed for.

The other Justices concurred.^

1 The early history of attorneys at law may be traced in Glanvill, lib XI. ; Bracton
de Legibus, fo. 3.34, 342-343; Statute of VVestniiuster II., 13 Ed. I., stat. 1, c. 10, s. 7;
Fleta, lib. iv., c. vi., §7, lib. vi., c. vi., § 14, Ub. vi., c. ix., §§ 7, 9-11; Erittou, fo. 119 b,
120, 285 b-287. And see 1 Pollock and Maitland's History of Euglisli Law, 190-196.

" Any suitor in any court of this state shall have the right to prosecute or defend
his suit, either in his own proper person, or by an attorney or agent of his choice."
Constitution of Michigan, art. vi., sec. 24 (1850). — Ec.

SECT. II.] WIDRIG V. TAGGART. 7

SECTION II. {continued),
(B) Infancy.

WATKINS V. VINCE.
Nisi Prius. 1818.

[2 Starkie, 368.]

This was an action on a guarantee by the defendant, b}- which, as
was alleged, he had guaranteed to the plaintiff the payment for
100,000 bricks, to be supplied to one Hanipson.

The guarantee was in the hand-writing of James Vince, the son of
the defendant, a minor of the age of IG. It was proved that he had
signed for his father in three or four instances, and that he had ac-
cepted bills for him.

Gurneij for the defendant objected, that this was too slight evidence
of authority given to the son to warrant the receipt of the guarantee in
evidence against the father; but —

Lord Ellenborougii held, that this was sufficient priz/^a fade
evidence, in the absence of any inducement on the part of the son
to commit a crime.

Gurney afterwards objected, that such a guarantee required a stamp ;
but —

Lord Ellenborougii overruled the objection, the guarantee being a
contract relating to the sale of goods, and therefore within the excep-
tion in the statute. Verdict for the 'plaintiff .

Topping and V. Lawes^ for the plaintiff.
Gurney^ for the defendant.

JACOB WIDRIG, BY NEXT friend, v. LESTER B. TAGGART
Supreme Court of Michigan. 1883.

[51 Mich. 103.]

Assumpsit. Defendant brings error. Affirmed.

Cohb & Ely^ for appellant. Recoupment may be had against an
infant suing for the value of his services. Moses v. Stevens, 2 Pick.
332; Thomas v. Dike, 11 Vt. 273; Hoxie v. Lincoln, 25 Vt. 210;
Judkins v. Walker, 17 Me. 38 ; Vehuet;. Pinkham, 60 Me. 142.

Geo. TP". Mead., for appellee. In an infant's action for the value of
his services no deduction can be made for his own breach of the

8 WIDEIG V. TAGGAKT. [CHAP. I.

contract of emplo^'ment. Whitmarsh v. Hall, 3 Den. 375 ; Derocher v.
Continental Mills, 58 Me. 217 ; Robinson v. Weeks, 56 Me. 102 ; Vent
V. Osgood, 19 Pick. 575 ; Gaffney v. Hoyden, 110 Mass. 137 ; Meeker v.
Hard, 31 Vt. 642; Dallas v. Hollingsworth, 3 Ind. 537; Meredith v.
Crawford, 34 Ind. 399 ; Ray v. Haines, 52 III. 485 ; Kearney v. Doyle,
22 Mich. 294.

Graves, C. J. The plaintiff, a minor of the age of nineteen,
labored as a farm hand for defendant from the last of March until the
earl}' part of Jul}', a space of eighty-five days, and brought this action
to recover for the service. The defendant had previously paid him
$45. The jury found in his favor, and allowed him $5.87, and the
defendant brought error to this court.

At the trial the defendant proposed to recoup damages bj- showing
that the labor sued for was performed under an express contract with
the plaintilF to serv^e for seven months at $17.50 per month, and that
he quit during the term and just before harvest ; but the court ruled
out the defence. The plaintiff admitted he was not entitled to recover
at as high a rate as $17.50 per month, and the circuit judge told the
jury that the measure of recover}' would be what the services were
worth at that season, after bearing in mind that the value might be less
than in case the labor had been extended or continued through the
summer. The value found by the jur}' was at the rate of $15.50 per
month, — a sum less than the lowest value in the evidence. We
discover no error.

The plaintiff, in consequence of his infanc}', was not compellable to
pa}' damages for withdrawing from his contract engagement. Recoup-
ment is, in substance and effect, a cross-action, and unless the party
whom it is attempted to subject to it could be compelled to respond
for the damages by an independent action against him, he cannot be
reached by recoupment ; and such was the position ot the plaintiff.

Persons who contract with minors must understand that they do so
at the risk of greater or less disadvantage. The adult binds him-
self, but the infant does not. And the law has not found it possible
to maintain these conditions of inequalit}', and at the same time secure
to the adult the same measure of remedial right which obtains where
both parties are of full legal capacity.

The judgment must be affirmed with costs.

The other Justices concurred.^

1 And see Vasse v. Smith, 6 Cranch, 226 (1810); Moses v. Stevens, 2 Pick. 332
^1824), Hoxie v. Lincoln, 25 Vt. 207 (1853). — Ed.

SECT. II. 1 EMERSON V. BLONDEN. 9

SECTION II. (continued).
(C) Coverture.

EMERSON V. BLONDEN.
Nisi Prius. 1794.

[1 Esp. 142]

Assumpsit for the use and occupation of certain rooms in the plain-
tiff's house, which had been let to the defendant.

The defendant and liis wife had taken the apartments at a certain
rent, the wife had made the bargain, and had agreed to give three
months' notice of quitting. Having quitted without notice, the action
was brought to recover the three months' rent.

A witness for the plaintiff proved a demand of the rent from the de-
fendant's wife, and that she had acknowledged the sura claimed to be
due, and had promised payment.

Mingcuj, for the defendant, objected to this evidence, as it was ad-
mitting the declarations of the wife, and her acknowledgment of debt
to charge the husband.

It was answered b}- the plaintiff's counsel, that the defendant having
in the present instance permitted his wife to act for him, in making the
agreement, and settling the terms upon which the lodgings were taken,
that he had thereb}- constituted her his agent for that purpose, and
should therefore be bound I)y her acts and admissions.

Lord Kenyon said, that the rule of law had been correctly stated b}'
the plaintiff's counsel, that where a wife acts for her husband in an}'
business or department, by his authority and with his assent, that he
thereby adopts her acts, and must be bound by any admission or ac-
knowledgment made by her respecting that business, in which b}* his
authority she has acted for him, and that therefore in the present case
her admission of the debt due to the plaintiff, on account of the lodging,
was competent and admissible evidence to charge the husband.

Tlie plaintiff had a verdict.

Erskine and Baldwin, for the plaintiff.

Mingay, for the defendant.

10 WRIGHT V. DANNAH. I'CHAP. L

SECTION II. (continued).
(D) Tke Statute of Frauds.^

WRIGHT V. DANNAH.

Nisi Prius. 1809.

[2 Camp. 203.]

Goods bargained and sold. Plea, the general issue.
The action was brought for the value of four sacks of clover seed.
The parties having met on tlie corn exchange in London, entered into
a negotiation for the sale of this seed ; and after they had agreed on
the price, the plaintiff wrote the following memorandum of the
contract : —

" Robert Dannah, Windley, near Derby.
4 sacks clover seed, at £6 18s.
Per Fly Boat."

After the plaintiff had written this memorandum, the defendant, who
overlooked him while he wrote it, desired him to alter the figures 18 to
16, — £6 16s. being the price agreed on. This the plaintiff accord-
ingly did. They then parted, the memorandum being left with the
defendant.

Park objected that this was not a sufficient memorandum within the
statute of frauds, not being signed by the party to be charged by it, or
his authorized agent.^

Garroio and Puller, contra, submitted that the defendant had made
the plaintiff his agent for the purpose of signing the memorandum, by
overlooking and approving of what he had written ; and they put the
ease of a man incapable from disease or ignorance of writing for
himself.

Lord Ellenborough said the agent must be some third person, and
could not be the other contracting party.*

Plaintiff nonsuited.

Garrow and Puller, for the plaintiff.

Park, for the defendant.

1 The pertinent parts of the statute are reprinted post, p. 52. — Ed.

2 29 Car. 2, c. 3, § 17, enacts, "that no contract for the sale of any goods, &c., for
the price of £10 or upwards, shall be good except, &c., or that some note or memo-
randum in writing of the said bargain, be made and signed by the parties to be
charged by such contract, or their agents thereunto lawfully authorized." — Rep.

8 Ace: Sharman v. Brandt, L. R. 6 Q. B. 720 (Ex. Ch. 1871). — Ed.

SECT. 11.] FAREBKOTIIER V. SIMMONS. 11

FAREBROTHER v. SIMMONS.

King's Bench. 1822.

[5 D tj- Aid. 333.]

Assumpsit by the plaintiff, an auctioneer, against the defendant, for
not taking or clearing away or paying tlie purchase-money, being £34,
for a lot of turnips, standing and being on certain land. Second count,
for crops of turnips bargained and sold, etc., and the usual money-
counts. Plea, general issue. At the trial before Wood, B., at the last
assizes for the county of Surry, the only question was, whether there
was a sufficient contract in writing to satisfy the statute of frauds. It
appeared that the contract given in evidence was the book in which the
plaintiff himself had written down the different biddings opposite to
the lots, and which book had been duly stamped. The learned Judge
directed a verdict for the plaintiff, reserving to the defendant liberty
to move to enter a nonsuit. Marryat, in last Michaelmas Term,
obtained a rule nisi for that purpose, and cited Wright v. Danuah, 2
Camp. 203.

Gurney and Abraham now showed cause. This was no interest in
land ; for the turnips having ceased to grow, the land merely was a
warehouse for them. But even if this be not so, the book is sufficient
to take the case out of the statute. For the plaintiff may be considered
as the agent of both himself and the defendant for the purpose of reduc-
ing the contract into writing. The case of AVright v. Dannah is dis-
tinguishable. There the party who wrote the memorandum was the
person who made the sale for his own benefit. Here it is the ease of an
auctioneer, who has no personal interest in the transaction.

Abbott, C J. The most favorable way for the plaintiff is to treat
the question as a case of goods sold and delivered ; and then, the goods
being above the price of £10, the case will fall within the 17th section
of the statute of frauds, which requires some note or memorandum in
writing of the bargain, to be made and signed b}- the parties to be
charged b}' it, or their agents, thereunto lawfully authorized. Now, the
question is, whether the writing down the defendant's name b}' the plain-
tiff, with the authorit}' of the defendant, be in law a signing b}' the de-
fendant's agent. In general, an auctioneer may be considered as the
agent and witness of both parties. But the difficult}' arises, in this
case, from the auctioneer suing as one of the contracting parties. The
case of Wright v. Dannah seems to me to be in point, and fortifies the
conclusion at which I have arrived, viz., that the agent contemplated
63- the legislature, who is to bind a defendant by his signature, must be
some third person, and not the other contracting party upon the record

Hide absolute.

12 BIRD V. BOULTER. [CHAP. L

BIRD V. BOULTER.
King's Bench. 1833.

[4 B. <^- Ad. 443.]

Assumpsit for goods sold and delivered, and goods bargained and
sold. Plea, the general issue. At the trial before Littledalk, J., at
the Hereford Spring Assizes, 1832, it appeared that the goods in ques-
tion (wheat, the property of one Smith) were a lot sold at an auction,
and knocked down to the defendant by the plaintiff, who was the auc-
tioneer, at a price exceeding £10. Tlie course pursued at this sale
was, that the parties as usual signified their biddings to the auctioneer,
who repeated them aloud ; and when the hammer fell, one Pitt, who
attended as the auctioneer's clerk, called out the name of the pur-
chaser, and, if the party assented, made an entry accordingly in the
sale-book. In the present instance, the auctioneer having named the
defendant as the purchaser, Pitt said to him, " Mr. Boulter, it is your
wheat;" the defendant nodded, and Pitt made the entry in his sight,
he being then within the distance of three yards. The question was,
whether a note or memorandum of the bargain had been made, pur-
suant to 29 Car. 2, c. 3, s. 17, In- the party to be charged, or his agent
thereunto lawful!}- authorized. A verdict was taken for the plaintiff,
and leave given to move to enter a nonsuit. A rule nisi having been
obtained for that purpose,

The Solicitor- General (with whom was "Whately) now showed cause.
It is still, perhaps, vexata qucestio, whether sales b}- auction are within
the seventeenth section of the statute of frauds at all, but see Kenwortby
V. Schofield, 2 B. & C- 945 ; but it is not necessarv to discuss that
point. The objection taken on the other side was, that under the
seventeenth section, one contracting party cannot constitute the other
his agent, to sign the memorandum (which, it was said, was the effect
of the present transaction) ; and Wright v. Dannah, 2 Campb. 203,
and Farebrother v. Simmons, 5 B. <fe A. 333, were cited. In the first
of those cases. Lord ELLENBORorGH held, that the agent who signed
the memorandum must be a third person, and not one of the con-
tracting parties ; and, in the other, Abbott, C. J., referring to Wright
V. Dannah, held that an auctioneer's signature was not sufficient,
where he sued as one of the parties to the contract. But the doctrine
of these cases is not borne out by the words of the statute ; and, at
common law, there is nothing to prevent one contracting party from
being the agent of the other ; an obligor, for instance, from gi\ing an
obligee a power of attorney to execute a bond for him ; a lessee from
executing a lease as attorney of the lessor ; a party from accepting a
bill by procuration, payable to his own order ; assuming the authority
in each case to be complete, which would be matter of evidence. It
was admitted here that Smith, the owner of the goods, might have

SECT. II.] BIRD V. BOULTER. 13

maintained the action. But the defendant is either bound by the con-
tract originall}', or not bound ; if he is bound, it does not matter b}'
whom the action is brought, so that it is a part}' entitled to enforce
the contract b^' action ; and this was the view taken by the learned
Judge at the trial. But there is no need to contest the cases cited.
Here the memorandum was not signed by the auctioneer, who sues,
but by another party, Pitt, who signed the contract by the defendant's
immediate autliority. If it is rightly held that a contracting party can-
not be the agent to sign under section 17, that restriction will surely
not be extended to his clerk. The court here called upon

Ludloic^ Serjeant, and Justice, contra. To decide in favor of the
plaintilT, the court must overrule Farebrother v. Simmons, 5 B. & A.
333. It is not disputed that, if Smith had sued, an entr\' by the
auctioneer would have been a sutlicient memorandum to bind the
purchaser ; so also would an entry by his clerk. In Henderson v.
Barnewall, 1 Y. & J. 389, Hdllock, B., observed that "an auc-
tioneer's clerk, who writes down the name of the buyer in his pres-
ence, is the agent of both parties." But then, whether the auctioneer
or the clerk sign, the same objection arises, that the memorandum is
signed by one of the contracting parties, who is plaintiff in the suit ;
for the clerk's signature is that of his master. [Littledale, J. Then
you would say that an auctioneer can, in no case, bring an action like
this in his own name.] He is not obliged to sue; the vendor mav. If
the auctioneer makes himself the plaintiff, he must take the consequent
disadvantages. [Taunton, J. Ma}- not the vendor have two agents ;
one to extol the commodity', the other to do the mechanical vAork of
making the memorandum in the sale-book?] The latter is an essen-
tial part of the auctioneer's duty ; the clerk, in doing it, represents
him ; and it was proved in this case that Pitt was the clerk and servant
of Bird. His receipt for money would have been that of Bird, and
would have charged Bird, and not Pitt himself. Edden v. Eead, 3
Camp. 339. The auctioneer, in this case, on knocking down the lot,
says, "It is Mr. Boulter's" (the defendant); and the clerk writes;
that is, in effect, that the auctioneer writes b}' the hand of his clerk.
If not, where is the memorandum b}' an agent lawfully authorized?
for there was no attempt at the trial to establish a distinct agenc}' in
the clerk. And if the signature is to be made available as that of the
auctioneer given by the hand of his clerk, Wright v. Dannah, 2 Camp.
203, and Farebrother v. Simmons, 5 B. & A. 333, applj'. [Pat-
TESON, J. In Blore v. Sutton, 3 Mer. 237, the signature of an agent's
clerk acting for and under the direction of the agent, in a case within
sect. 4 of the statute, was held not to be a memorandum b}' the au-
thorized agent of the principal.] The dictum of Hullock, B., in Hen-
derson V. Barnewall, 1 Y. & J. 389, contradicts this. [Patteson, J.
That was not called for by the case before the court.] In a sale by
auction the knocking down constitutes the contract ; the entr\- is a
requisite superadded bj' the statute, but it is not a distinct transaction.

14 BIRD V. BOULTER. [CHAP. I.

[LiTTLEDALE, J. Ma}' it iiot be said that the clerk is constituted a
deput}" by all the room ?] He goes to the sale in a definite character,
hired to act for a particular master ; he could not sue an}- other person
for work and labor ; and the auctioneer might sue for labor done by his
clerk. The clerk acts as a mere automaton under the direction of tlie
auctioneer.

Dekman, C. J. I think this case is distinguishable from AVright v.
Dannah, 2 Camp. 203, and Farebrother v. Simmons, 5 B. & A. 333 ;
and it appears to me that the clerk was not acting merel}' as an autom-
aton, but as a person known to all engaged in the sale, and employed
by any who told him to put down his name. Without, therefore, in-
terfering with the cases that have been cited, I think this rule must
be discharged.

LiTTLEDALE, J. With rcspcct to the cases relied upon in support of
the rule, there is certainly a difficulty in saying that a purchaser shall
be bound by a contract or not, as the action is brought bj' one party
or another. It is, indeed, irregular that the real buj'er or real seller
should make the other party his agent to sign a memorandum under
the statute ; but when that is done through a third person the objection
is removed. An auctioneer is enabled by law to sue the purchaser,
but, according to the rule insisted upon for the defendant, an action of
this kind could not be maintained by the auctioneer. I think that a
clerk employed as Pitt was in this case, must, in an action brought bj-
the auctioneer, be considered as his agent for the purpose of taking
down the names, and also as the agent of the several persons in the
room for the same purpose, and to prevent the necessity' of each
purchaser coming to the table to make the entry for himself

Taunton, J. I ver}' much agree with my brother Littledale as to
the difficulty in Farebrother v. Simmons, 5 B. & A. 333. But there is
no necessity to overrule that case. The Chief Justice there says, in
the close of his judgment, " Wright v. Dannah fortifies the conclusion
at which I have arrived, viz., that the agent contemplated by the legis-
lature, who is to bind a defendant by his signature, must be some third
person, and not the other contracting party on the record." It is a
sufficient distinction between that case and this, that in the former the
auctioneer, whose signature was relied upon, was the party suing; here
the signature is by a third person. I would, however, go farther than
this. Under the circumstances, I think Pitt may be considered to have
been the agent of the vendor. It is not necessary to suppose that the
vendor rested a particular confidence in the auctioneer for the purpose
of putting down the names in the sale-book. He may be taken to have
constituted that person his agent for the making of such entries, whom
the auctioneer might choose to appoint. If so, Pitt was agent for the
vendor, and also for the persons in the room who saw him acting as he
did under the auctioneer, and by their acquiescence constituted him
their agent for the business which they saw him performing. At all
events he is a third person, and not a contracting party on the record

SECT. III.] STEAD V. THORNTON. 15

Patteson, J. It is not necessary here to overrule FarebrotUer y.
Simmons, 5 B. & A. 333. It ma}' be correct to say, as there laid
down, that the signature must be by a third person, and not by a
contracting party on the record. Here it was so. According to the
evidence, Pitt was seen by all the parties at the sale making the entries
in the sale-book ; it was inconvenient that each purchaser should come
to the table for that purpose, and, by nodding as the names were
called, they authorized him to act as lie did. Rule discharged.

SECTION III.
Who can he a Principal.
(A) General Principles.

STEAD V. THORNTON.
King's Bench, 1832.
[3 B.^^ Ad. 357, u. («).]

Assumpsit for money had and received. At the trial before Parke,
J., at the Yorkshire Lent assizes, 1831, it appeared that the money in
question was part of tiie bankrupt's estate, and had been received by
the defendant in the capacity, as it was alleged, of agent to his brother,
who was assignee of the bankrupt, but who became insane, and was so
during the whole time when the money was received. He was after-
wards removed, and the present assignee, the plaintiff, appointed in his
stead. At the trial it was contended that the mone}' having been re-
ceived by the defendant as agent for his brother, the late assignee,
there was no privity of contract between the parties to tliis action, that
it ought to have been brought against the representatives of the late
assignee, and that the defendant was answerable to them alone. The
learned judge directed a nonsuit, with leave to move to enter a verdict
for the plaintiff. A rule nisi having been obtained accordingly,

John WiUiains and Starkie now showed cause, and restated the
ground of nonsuit. The imbecilit}' of the former assignee makes no
difference ; he was assignee in point of law till removed, and the
defendant would have been liable in an action brought by him for the
mone}' received on account of the estate. The assignee's want of intel-
lect would have been no defence to such an action against his agent.
The defendant then continues to be legally liable for this mone}' to the
representatives of the late assignee, and therefore no privity of contract
can be raised between the defendant and the new assignee. Sect. 66
of the bankrupt act, 6 G. 4. c. 16, applies only to debts due to the

16 STEAD V. THORNTON. [CHAF. L

bankrupt at the time of the fresh assignment ; here the debt was not
due to the bankrupt, but to tlie former assignee.

JF^. Pollock (and Alexander was with him), contra. The former as-
signee having been insane, the defendant must be taken to have
received the mone}' on liis own responsibiUty, and not as agent. "Where
a person receives money with knowledge that anotlicr party is or will,
under certain circumstances, he entitled to it, there is sutlicient privity
to make the receiver liable at the suit of such other party. Littlewood
V. Williams, 1 Marsh. o89 ; 6 Taunt. 277. The argument on the other
side would introduce a circuity of action : a new assignee would have
to sue the old, and he to sue the agent, who had received money
and not paid it over. Such agent cannot indeed be liable to two sets
of assignees at the same time, but he may be to both successively.
De Cosson v. Vaughan, 10 East, 61, shows that under the former
bankrupt acts a new assignee might recover in debt upon a judgment
recovered on behalf of the bankrupt's estate by an assignee who had
been removed ; and that case is applicable here« (Here he was stopped
by the court.)

Lord Tentekden, C.J. We are not called on to decide how the
case would be if the defendant had received this money as the duly
constituted agent of the former assignee. He could not be so, that
assignee having been incompetent to appoint any agent. He is, there-
fore, in the situation of an}* other person who has received and has in
his hands a part of the bankrupt's estate, and is undoubtedly liable to
those who represent that estate.

Parke, J. If the receipt of this mone}' had taken place under such
circumstances that the former assignee could have been charged with
it, as he might if he had received it bj- his agent or clerk, I should have
thought this action not maintainable. But here the receipt was that of
the defendant alone, who stood in the situation of a mere stranger, and
held the money subject to the claim of the assignees who might be
afterwards appointed.

Patteson, J. It is unnecessar}' to sa}' what might have been the case
if the defendant had received the money as agent to his brother. It is
sufficient that he did not stand in that situation, the brother being
incapable of having an agent.

Mule absolute.^

1 With this case compare Read v. Legard, 6 Ex. 636 (1851), aud Debeuham v. Mel-
lon, 6 App. Cae. 24 (1880).— Ed.

SECT. III.] WHITTINGHAM'S CASE. 17

SECTION III. (continued).
(B) Infancy.

BARTHOLOMEW v. DIGHTON.
Queen's Bench, 1595-6 and 1597.

[Cro. Eliz. 424.]

Error upon a judgment in the Common Pleas, because the plaintiflF,
being an infant, sued by attorney and recovered, whereas he ought to
have sued b}- his guardian. But the Court upon the motion held that
in regard the plaintitF hath recovered, and it is for his benefit, and no
prejudice by his appearance by attorney, that it should not be assigned
for error : but they would advise. And afterward, Fasch. 39 Eliz.,
being moved, it was held clearly to be error. And the judgment was
reversed for that cause.

WHITTINGHAM'S CASE.
Star Chamber, 1G02-3.

[8 Co. 42 i ]

The case in the Star Chamber, Hil. 45 Eliz., was, that Richard Whit-
tingham was seised of three messuages, &c., in Crayford, in the count}'
of Kent, held of the Queen in socage, as of the manor of Newberry in
Crayford in fee ; and by his will in writing devised them to Prudence,
his bastard daughter, and her heirs, and died. Prudence, being within
age of 21 3'ears, by deed, as was pretended, did enfeoff Stephens and
others of the said tenements in fee, and died within age without issue ;
and whether this feoffment should prevent the Queen of her escheat was
the question. And, on consideration had with the two Chief Justices,
it was resolved that if there be lord and infant-tenant, and the infant
makes a feoffment in fee, and executes it by livery of seisin by his own
hands, and afterwards dies without heir, that the lord should not take
benefit of any escheat in that case.^ . . .

But afterwards it appeared in the principal case, that the said sup-
posed feoffment of the said Prudence wats ixecuted by letter of attorney
made by the said Prudence ; wherefore it was resolved that it was void,
and that the land did escheat to the Queen.

^ The report is shortened by giviug only the passage as to the power of attorney.
— Ed.

18 LAWRENCE V. MCARTER. [CHAP. 1.

RAMES V. MACHIN.
Common Tleas. About 1G08.

[.Vc;^, 130.]

In an Ejectione firm., by the Court, That a lease for years for an
/hfant to try the title, is good enough, because it is for his advantage.
Note 21 H. 6. 31, letter of attorney- hy an infant to receive livery
and seisin for him. ^

Lessee of LAWRENCE v. McARTER.
Supreme Court of Ohio. 1840.

[10 Ohio, 37.]

This is a motion to set aside a verdict, taken for the defendant, in
an action of P^jectment, in the county of Knox.

William Barton, Sen., was once the owner of the land.

He died, and his will was proved in 1802. By it he devised the land
" to my four sons, Gilbert, William, Joseph, and George, or the
survivors of them, and tlieir heirs and assigns, to be equally divided
among them when the youngest attains the age of twenty -one years."

All the sons survived the testator.

1 " And that which is to liis advantage an infant can do : for if a feoffment be
made to an infant who makes a letter of attorney to another person to take livery of
seisin for him, this livery of seisin is well made, and lawfully ; the cause is because
this is for his advantage. And the law is the same if an infant make me the bailiff
of his manor, and to have the care and administration of his goods; if afterwards
he will bring action of trespass against me, I plead the aforesaid matter in bar well
enough, and he can have against me a writ of account, wliich will be to liis advan-
tage." Per Ayscoghe, J., in Botteler v. Newport, Y. B. 21 H. VI. 31 (1442-3).

" All such gifts, grants, or deeds made by an infant, as do not take effect by delivery
of his hand are void. But all gifts, grants, or deeds made by an infant by matter in
deed, or in writing, which take effect by delivery of his own hand, are voidable by
himself, and his heirs, and by those who have his estate." Perkins' Profitable Book,
sec. 12 (1532).

" The words ' which do take effect ' are an essential part of the definition ; and ex-
clude letters of attorney, or deeds which delegate a mere power and convey no
interest. . . .

" The distinction hetween the deeds of femes covert and of infants is important :
the first are void ; the second voidable. . . .

" Powers of attorney are an exception to the general rule as to deeds ; and a power
to receive seisin is an exception to that. The end of the privilege is to protect infants.
To that object, therefore, all the rules and their exceptions must be directed." Per
Lord Mansfield, C. J, in Zouch w. Parsons, 3 Burr. 1794, 1804, 1805, 1808 (1765).—
Ed.

SECT. III.] LAWRENCE V. Mf^ARTER. 19

George, the youngest son, attuiiied twenty-one years in 1816.

Gilbert died in 1812, intestate and without issue.

William died prior to 1812, and left a sou William and a daughter,
his heirs-at-law.

Joseph was living when George arrived at full age, and the defendant
now holds his interest.

In 1815, before he came of age, George gave to his brother Joseph a
letter of attorney, to sell his lands, and thev have been sold under it,
and the defendant claims the title.

In 1835, George conveyed to the plaintiff.

In the same year William, the grandson, conveyed to the plaintiff.

M. A. Sayre and R. C. Hurd, for the plaintiff.

1. The letter of attorney from George Barton is void, because at the
time of giving it he was an infant. There may be doubts whether an
infant can make a valid deed of bargain and sale, or of lease and re-
lease, but a letter of attorney, conveying no present interest, is spoken
of in all the books as a mere nullity. Zouch v. Parsons, 3 Burr. 1804 ;
Saunderson v. Marr, 1 H. Bl. 75 ; Stafford v. Roof, 9 Cowen, 626 ;
2 Kent Com. 234, 236; Fonda v. Van Home, 15 Wend. 631 ; 3 Bac.
Ab. 598; 2 Roll. Ab. 2; Noy, 130; Palm. 237; Roll. Rep. 242;
8 Co. 45 a.

An act done by another for an infant, which act must necessarily be
by letter of attorney under seal, is absolutely void. Whitne}- v. Dutch,
14 Mass. 461.

A letter of attorney' given bj' an infant is absolutely void. Pyle v.
Cravens, 4 Littell, 18 ; Burton on Real Property, 69 ; Law Library
No. 67 ; 1 Story's Eq. 247 ; Bingham on Infancy, 34 ; Story's
Agency, 7.

H. Stanhery, C. Delano^ and H. B. Curtis, for the defendant.

1. There is scarcely any question more vexed tlian whether the acts
of infants are void or voidable.

This court was pressed with the difBcult}- arising from the contrariety
of the cases, in Drake v. Ramsay, 5 Ohio Rep. 251. but settled no gen-
eral rule.

The older cases seem inclined to make the acts of infants void rather
than voidable, and though no recent case is found directly overruling
these decisions, 3'et the rule of late recognized is based on a different
principle, holding the acts of an infant void where the}- are to his
prejudice, but voidable where they may be beneficial to him ; and leav-
ing their ratification, or disaffirmance, to his mature judgment, at full
age. 2 Kent's Com. 236 ; Oliver v. Houdlett, 13 Mass. 239 ; Kline v.
Beebe, 6 Conn. 503.

In Vin. Ab. 384, it is said, If a man makes a deed of feoffment to an
infant, and the infant makes a letter of attorney to another to take
livery for him, this is good, because it is for his benefit. S. P. 1 RolL
Ab. 730 ; Whitney v. Dutch, 14 Mass. 457.

20 WAPLES V. HASTINGS. [CHAP. L

Lake, C. J.' The effect of this interpretation is, that "William Barton,
the grandson, took one half the share of his father who held one fourth
the land under the will, and one sixteenth as the heir of his uncle
Gilbert, which is now the property of the plaintiff, and is five thirtj'-
seconds of the entire estate.

The same rule of construction gave to George Barton ten thirty-
seconds, which is likewise held bj- the plaintiff, under a deed from him,
unless George was divested of his title b}- the sale under the letters of
attorney-, given, in his minority, to his brother Joseph.

It is claimed by the plaintiff that these letters of attorne}- are void,
incapable of ratification, and never well executed.

We are then led to the oft d^6ussed, and yet not settled question, as
to what acts of an infant are^-goid and what voidable. No accurate
test has yet been propounded to determine this important point, and
the authorities seem rather to decide individual cases than to give a
comprehensive and intelligible rule. Yet in all, and from the earliest,
we find it laid down that deeds which do not derive their eflScac}' from
delivery only are void ; and it has been held in man}' cases, and, as
far as I can learn, without a dissenting opinion, or a contradictory
authority', that letters of attorney, conveying no present interest, are
absolutely null.

It would be a bold act to attempt to withstand this bod}- of precedent,
and we cannot but recognize it as destructive of that part of the de-
fendant's title.

It is therefore unnecessar}' to consider any further questions. The
plaintiff is entitled to fifteen thirt^'-seconds of the land.

The defendant is to have the benefit of the law for the relief of
occupants. Motion granted.

WILLIAM D. WAPLES v. RICHARD F. HASTINGS.

Superior Court of Delaware. 1842.

[3 Harrington, 403.]

Judgment confessed on bond and warrant of attorney, dated 18th
of February, 1836. On the application of defendant, rule to show
cause wh}' the judgment should not be vacated, on the ground that the
defendant was an infant at the date of the bond and warrant of
attorn e}'.

At the hearing it appeared that the defendant was born on the 24th
of April, 1816. He was acting as a man of full age in 1836, doing
business as a partner with his father ; generally understood to be of

1 The report has been abbreviated by omitting from the arguments and from the
opinion passages as to the nature of the estate transmitted to the sons by the will. — Ed.

SECT. III.] WAPLES V. HASTINGS. 21

age, and voted at the goneial election in that year. In March, 1840,
he executed a paper under hand and seal, expressly to recognize and
confirm tliis bond and warrant of attorney given to William D. Wa[)les,
in Februar}', 1836. Tiie judgment was confessed on the 23d of
February, 1836.

Houston, in support of the rule.

R'uhjehj, contra.

Bayard replied.

By the Court. The bond and warrant of attorney of an infant are
void. 3 Com. Dig., Enfant, B, Co. Lit, 172 a.

The court, on motion, will set aside a judgment on a warrant of
attorney executed by an infant. 3 Com. Dig., Enfant, B ; 2 W. Bl.
1133 ; 1 H. Bl. 75, Saunderson v. Marr.

Even if the contract could be confirmed after full age, it would
not set up the warrant of attorney. 2 B. & C. 824, Thornton v.
lUingworth.

The bond and warrant of attorney failing, the judgment is without
authority and must be vacated.

The cases of suits against femes covert as femes sole have only
decided that the court will not permit the defendant to set up her
coverture in a summai}- way, but put her to plead the coverture.

Ride absolute}

* " An act which an infant is under a legal incapacity to perform is the appoint-
ment of an attorney, or, in fact, an agent of any kind. And this rule depends upon
reasoning which, if somewhat refined, is yet perhaps well founded. The constituting
of an attorney by one whose acts are in their nature voidable is repugnant and im-
possible, for it is imparting a right which the principal does not possess, — that of
doing valid acts. If the acts when done by the attorney remain voidable at the option
of the infant, the power of attorney is not operative according to its terms; if thev
are binding upon the infant, then he has done through the agencv of another
what he could not have done directly, — binding acts. The fundamental principle
of law in regard to infants requires that the infant should have the power of affirming
such acts done by the attorney as he chooses, and avoiding others, at his option ;
but this involves an immediate contradiction, for to possess the right of availing
himself of any of the acts, he must ratify the power of attorney, and if he ratifies the
power, all that was done under it is confirmed. If he affirms part of a transaction,
he at once confirms the power, and thereby, against his intention, affirms the whole
transaction. Such personal and discretionary legal capacity as an infant is vested
with is, therefore, in its nature, incapable of delegation ; and the rule that an infant
cannot make an attorney is, perhaps, not an arbitrary or accidental exception to a
principle, but a direct, logical necessity of that principle. But if the considerations
suggested as the foundation of this rule be not satisfactory, the rule itself is estab-
lished by a conclusive weight of authority." 1 American Leading Cases (.5th ed.), 247.

For a discussion of the distinction between void and voidable, see The State v.
Richmond, 26 N. H. 232, 2.-57-239 (\^bS),per Bell, J., and Markby's Elements of Law
§§ 274, 649-652, 764. — Ed.

22 HARDY V. WATERS. [CHAP. I.

HARDY V. WATERS.
Supreme Judicial Court of Maine. 1853.

[38 Me. 450.]

On exceptions from Nisi Pi'ius, Hathaway, J., presiding.

Assumpsit, on a promissory note, payable to a minor, wlio was
under guardianship. The note was indorsed to the plaintiff, b}- a
brother of the pa3'ee, also a minor, being authorized by the payee to
write his name thereon. Since this suit was commenced, the guardian
had approved of the transfer to plaintiff.

The defence was that the note had not been legall3' negotiated, and
therefore the plaintiff could not maintain this action. The court
I'uled otherwise, and the plaintiff recovered the amount of the note.
Defendant excepted.

Cutting^ for defendant.

It is not contended that an infant payee may not indorse and
transfer a note payable to him or his order, as was decided in Nightin-
gale V. Withington, 15 Mass. 272, or make a ratification after be-
coming of age, as in Whitney v. Dutch, 14 Mass. 457.

But it is denied that an infant under guardianship has such authority ;
or having such authority, can delegate to another ; or if to another,
an infant.

It is settled be3'ond controversy that an infant cannot delegate
authorit}' to an agent or attorney' to transact business or appear in
his behalf.

An infant is also incapable of assuming an}- power as an agent or
attorney. More especially if the infant delegating such power be under
guardianship. If a decision adverse to these propositions be pro-
nounced by this court, it would overturn all the elementary law on
this subject.

" The assignment of a promissory note by an attorney in fact of an
infant obligor is void, though the infant be present at the assignment."
Semple v. Morrison, 7 Monroe (Kentucky), 298, cited in 2 Sup. U.
S. Dig. 159.

The consent of the guardian, since the commencement of the suit,
cannot affect the rights of the parties as they existed when the suit
was instituted. Ford v. Phillips, 1 Pick. 202 ; Thing v. Libbey. 16
Maine, 55.

Peters, for plaintiff, cited 15 Mass. before cited; 22 Pick. 540;
Nightingale v. Withington, 15 Mass. 272; 2 Kent's Com. 235; 1 N.
H. 73; 10 Peters, 71 ; 7 Cowen, 179 ; 1 Met. 559 ; Whitney v. Dutch &
al. 14 Mass. 457.

Shepley, C. J. — It is admitted that an infant may transfer a
promissory note payable to himself by indorsement. It is denied
that he can confer upon another the power to do it for him, the reason

SECT. III.] OULDS V. SANSOM. 23

is, that an indorsement by an infant is voidable ; while his act confer-
ring power upon another to do it for him is void.

If the act of transfer in this case be voidable only, it is to be
regarded as valid until avoided ; and it can be avoided onl}' b}' the
infant or his heir or personal representative. If the power to indorse
by another was void, it could not be ratified, and the plaintiff could
acquire no legal interest in the note ; and the approval of tlie guardian
since the commencement of the suit cannot aid him.

In the case of Whitney v. Dutch, 14 Mass. 457, the right of an
infant to empower another, otherwise than by an instrument under
seal, to do an act for him, which he might lawfully perform himself,
was fully considered. It was admitted, if the court were confined to
the letter of the authorities, it must conclude, that the act could not be
performed by delegated power.

Considering, that the object of the law was to protect infants from
injui-y, and that this would be fully effected by regarding contracts so
entered into as voidable and not void, the court came to the conclusion
that there could be no difference, upon principle, between the ratifica-
tion of a contract made b}' an infant and one made through the inter-
vention of another person acting under parol authority' from him.

Changes in the law respecting negotiable paper are undesirable,
and should not be made without strong reasons for them. The de-
cision in that State was made, and the rule of law established, while
this State composed a part of it. It should not, after it has been so
long received as the law, be abrogated merely because other highlv
respectable courts have come to a different conclusion, especiall}' when
it is not perceived, that it has been, or is likely to be productive of
any injustice or mischief. Exceptions overruled.

Tenney, Appleton, and Rice, JJ., concurred.

SECTION III. {continued).
(C) Coverture.

OULDS AND Others v. SANSOM. C

Common Pleas. 1810.

[3 Taunton, 261.]

This was a writ of right. The demandants, three coheiresses, femes
covert^ suing without their husbands, by their attorney, demanded cer-
tain premises in Leighton, Essex. The\' counted upon the seisin of
Mary Lewis, and averred that upon her death, for that she died without
issue of her body, the right descended to John Spriggs, father of the

24 SUMNER V. CONANT. [CHAP. L

demandants, who was cousin and heir of Mary Lewis, but onl}- argu-
mentativel}', whereas the cousinage of the said John to the said Marj
ought to have been directly and expressly' shown bj' the count.

Mest, Serjt., in support of the demurrer, took a preliminary objec-
tion, that/emes covert could not make an attorney.

jShejj/ierd, Serjt., admitted he could not answer this objection.

Lawrence, J. It is matter in abatement of the writ. The judgment
must be quod breve cassetur.

Judgment for the tenant.

SUMNER V. CONANT.

Supreme Court of Vermont. 1836.

[10 Vt. 9 ]

Ejectment, to recover a lot of land in Barnard, numbered 165. The
plaintiff claimed to derive title from Benning Wentworth, as one of the
original grantees of said town of Barnard. On the trial of the cause,
the plaintiff gave in evidence a copy of the charter of the town of
Barnard, which grants the town in sixty-nine equal shares to the per-
sons therein named. After naming other grantees, the shares of Gov.
Wentworth are mentioned as follows : " His Excellency Benning Went-
worth, Esq., a tract as marked in the plan, ' B. W.' to contain five
hundred acres, which is to be accounted two of the within shares."
The shares of Gov. Wentworth were not designated on the plan by the
letters " B. W." being marked thereon. The plaintiff also offered in
evidence a copy of the will of Benning Wentworth, who devised the
whole of his estate, both real and personal, to Martha Wentworth, his
wife. A copy of the will of the said Martha Wentworth, who devised
all her real, personal, and mixed estate to her daughter, Martha Went-
worth, wife of John Wentworth, in tail-general, with power to sell and
dispose of such part of the personal or real estate as might be best
spared, for her and her famil^-'s comfortable support, and to do good to
the poor and need}'. A power of attoi-ney from John Wentworth and
Martha, his wife, to Isaac Shepherd, authorizing the said Shepherd, in
the name of the said John and Martha, " to prosecute, sue for, and
recover all and ever}- the right and rights commonly called the Gov-
ernor's right, or farm, situate and being in the State of Vermont, in
every township in said State, containing five hundred acres, more or
less, and reserved to His Excellenc}', the late Governor Benning Went-
worth " and also empowering the said Shepherd " to convey all and
every such right or right or rights in said State of Vermont, in our
name, and to give deeds of quit claim to purchasers of the same." The
plaintiff also offered a deed from the said John Wentworth and Martha,
his wife, executed by said Shepherd as their attorney, to Henry A.

SECT. III.] SUMNEU V. CONANT. 25

Raixlall, conveying (among other lands) Gov, Wentworth's two rights
in IJarnard. Also, a power of attorney from said Randall to said
Sheplierd empowering the said She[)herd, as tlie attorney of said Ran-
dall, to sell and convey, in the name of said Randall, by quit-claim
deed, any or all of the said Randall's lands, and a deed from said
Randall, executed by said Shepherd, as his attorney, to the plaintiff,
conveying (among otiier rights) Gov. Wentworth's two lights in Bar-
nard. Also, a copy from the proprietors' records of said town, which
show that a meeting was called " to see if the proprietors will rectify
an}* mistakes, if there should be an}' found, in the proprietors' records,"
" to see if the proprietors will finish laying out and dividing the re-
mainder of the undivided lands in said Barnard," and for other pur-
poses, as spccilied in tlie warning; that the proprietors met on the 6th
of October, 1795, and chose "a committee of three to look into the
proprietors' records and state the mistakes and make report at the next
meeting;" that tlie meeting adjourned to the 1-ith of Octol)er, 1795;
that the proprietors met pursuant to the adjournment, and the commit-
tee, appointed at the previous meeting, reported that on examination of
the records they found that, at a former meeting of the proprietors,
a division of lands in said Barnard had been made, and the lots on
which the settlers lived were voted to them in lieu of the lots by them
drafted, and the remainder of said division was made by draft; that
the clerk, through mistake, entered on the records all the voted and
drafted lands, as voted, making no distinction, and that they had
" entered the voted and the drafted lands as follows : Governor's two
shares, drafted, 166, 169, 265, 165, 168, 264," which report the meet-
ing voted to accept.

The several deeds and letters of attorney above set forth were duly
executed and acknowledged, and the magistrate who took the acknowl-
edgment of jNIartha Wentworth certified that she was examined sepa-
rate and apart from her husband. The defendant objected to the
introduction of all the foregoing evidence, except the copy of the
charter, and the several w'ills of Benning "Wentworth, but the court
overruled the objections, and admitted the evidence. Tiie plaintiff also
gave evidence, tending to prove the marriage of Michael Wentworth to
the said Martha Wentworth first named, on the 19th December, 1770 ;
and also, of the said John Wentworth to the said Martha Wentworth,
secondly al)ove named, on the 7th Januarv. 1802, and that the said
Benning Wentworth died, prior to the 31st day of October, 1770, and
that the said John Wentworth died on the 3d day of June, 1831 ; and it
was conceded that the defendant was in possession of the land in con-
trovers}'. On the trial, the counsel for the defendant contended and
requested the court to charge the jury : 1 . That by the terms of the char-
ter, if Benning Wentworth acquired any rights under such charter, he
acquired a right, in severalt>-, to 500 acres of land in one separate and
distinct tract, and not a right to five or six different tracts located in
different parts of the town, and that it was incumbent on the plaintiff

26 SUMNER V. CONANT. [CHAP. L

to show the land sued for to be a part of said tract ; 2. That, inasmuch
as the tract attempted to be granted b}' said charter to said Benning
Wentworth was not therein described with such certainty that it could
be known and distinguislied from the lands granted by said charter to
the other grantees therein named, said grant was void as to said Went-
worth ; 3. That the said Benning Wentworth never had any legal
interest in the land in question, bv virtue of said charter; 4. That
neither the plaintiff nor any of the persons from or through whom his
pretended title passed ever had any legal right or interest to the land
in question, b}' virtue of any division of the lands in Barnard, shown by
the evidence in the case to have been made by the proprietors of said
town. But the court refused so to charge the jur}', but did charge tliem
to the contrary thereof. Whereupon the jur}' returned a verdict for the
plaintiff, and the court rendered judgment thereon ; to which decision
and charge the defendant excepted.

Aikens & Edgerton, for the defendant.

T. Hutchinson^ for plaintiff.

The opinion of the court was delivered by

RoYCE, J.^ The case shows that all the right of Benning Wentworth
came b}' devise to Martha, the wife of John Wentworth, about 1803;
and the only remaining question is, whether the plaintiff has ac-
quired her title. This depends on the validity of the power of attor-
ney, executed by her and her husband to Shepherd, in October, a. d.
1808. The power was undoubtedly good for all the purposes men-
tioned in it, except that of conveying lands ; because the husband alone
was competent to authorize all necessar}' acts to accomplish those pur-
poses. And whether it was also good for the purpose of passing her
title to the lands is a question of great importance, and one which has
never been decided in this court to our knowledge.

At common law, a woman under coverture could make no convey-
ance of her lands, except through the agency of a court of record. She
could neither convey directly by deed, nor authorize any one to convey
for her. All her present right to convey by deed is therefore conferred
by statute. The requisites of a common deed of conveyance are pre-
scribed by the fifth section of the act regulating conveyances. It must
be " signed and sealed by the party having good and lawful authority
thereunto," and " signed by two or more witnesses, &c." The ninth
section contemplates that such deed may be executed by attorney, and
discloses some of the requisites of the power of attorney. The words are,
" such power having been signed, sealed, and acknowledged before a jus-
tice of the peace, by the party having lawful right to make the same."
Thus far the statute is applicable to all persons having a legal right to
act under it, whether by conveying their lands directly, or empowering
agents to conve}'. No personal disabilities are as yet mentioned, or pro-
vided for. But the twelfth section relates exclusively to the case of a

1 The opinion is abridged by omitting paragraphs not bearing upon the power of
attorney. — Ed.

SECT. 111.] SUMNER V. CONANT. 27

feme covert attempting to convey her lands by deed. The right is there
given or recognized to convey " by deed of herself and baron ; " and
as a protection against any improper influence of the husband, her
separate examination and acknowledgment are made necessary, and
required to be certilied upon the deed. The question now presents
itself, whether this deed may not be executed through the instru-
mentality of a third person. Though it is generally true that what
a person has a right to do in his own affairs, he ma}' authorize an-
otlier to do for him, yet this is b}- no means universally true. An
infant may execute and deliver a deed of his land, which will be effec-
tual in law, unless he afterwards elects to avoid it; while his autlioiity
to another to deed for him, is merely void. Reeve's D. R. 251. The
disability ofaj'e/ne covert is not founded, like that of an infant, ui)on
a supposed want of discretion, but results from a legal subjection to
her husl)and, which is presumed to deprive her of that freedom of will
which is essential to the validity of contracts. And that this disability
emphatically applies to the delegation of powers is shown b^- the familiar
case of an attorney to defend a suit, whom, it is everywhere said, the
wife cannot appoint. It is contended, however, that in this instance,
the statute has removed her disabilit}*. This proposition is defended
on two grounds : 1st. That the power to convey, and the deed executed
by the agent, being parts of one entire conveyance, constitute the deed
which the statute has authorized ; 2d. That, the right to conve}' being
expressly given, the power to create an intermediate agency should be
upheld, as one of the necessar}', or usual, means for exercising that
right. The first ground here taken would lead to a ver}' free and loose
construction of the statute. The power of attorney is strictly no part
of the conveyance, but a mere qualification of the person who is to
make it. Much less is it the deed of conveyance itself, of which
alone the statute speaks. It is known that the power and deed are
distinct instruments, not merely executed at different times, but ac-
knowledged bv different persons, — the power by the part}' making it,
and the deed by the agent who executes it. Such were the facts in
this case. And how can it be maintained, except upon a subtle and
strained construction of the act, that Martha Wentworth has ever exe-
cuted and acknowledged the deed which professes to convey her estate?
In our opinion, the terms of the statute do not justify a conclusion so
wide of their apparent import.

The remaining ground is open to most of the observations already
made. I shall suggest but a simple additional objection, which con-
sists in the inability of the wife to revoke a power of this description,
without the concurrence of her husband. Whether this consideration
alone would be fatal to the power in ever\' case, it is certain!}' of great
and decisive force in the present. The power in question extended to
all the rights granted, or reserved, to Gov. Wentworth throughout this
State ; the pi'operty to be affected was consequently large, and the
business of the agency was doubtless expected to continue through a

28 WEISBROD V. CHICAGO AND NORTH-WESTERN RY. CO. [CHAP. I.

course of years. To sustain the power, under such circumstances, would
be to place the valuable estate of a wife beyond her own control, and
not unfrequently subject it to the waste of a faithless agent, or an un-
wise and improvident husband.

Judgment of the County Court reversed, and new trial granted.*

ADAM HENCHMAN v. JOSEPH ROBERTS and
ELIZABETH ROBERTS.

Superior Court of Delaware. 1836.

[2 Harrington, 74.]

Rule to show cause wh}' a judgment entered against husband and
wife should not be set aside, because the warrant of attorney was given
b^' the wife after marriage.

The court said that the judgment against the wife was void, being
confessed on a void authority, as a married woman cannot execute a
letter of attorney ; and the judgment, being a joint one, must be set
aside as against both. Mule absolute.^

Wales, for plaintiff.

Booths for defendant.

WEISBROD V. THE CHICAGO & NORTH-WESTER]^
RAILWAY COMPANY.

Supreme Court of Wisconsin. 1864.

[18 Wis. 35.]

Appeal from the Circuit Court for Winnebago County.

Ejectment, for a strip of land lying near the middle of what was
commonly known as Broad Street in the city of Oshkosh. The plaintiff
claimed the premises as part of lot 1, block E, and lot 26, block D, in
the 2d Addition to said city. The defendant claimed to occupy and use
the premises as the property of one Miller, under a license from him.
The grounds upon which the parties severally rested their claims are
fully and clearly stated in the second paragraph of the opinion, infra.
In making out his chain of title to lot 26, block D, the plaintiff offered

1 Accord: Steele ''. Lewis, 1 T. B. Mon. 48 (1824) ; Administrators of Earle v.
Earle, 20 N. J. L. .347, 360 (1845) ; Lewis v. Coxe, 5 Harrington, 401 (1852) ; Mott
V. Smith, 16 Cal. 533, 556-557 (1860). And see Holladay v. Daily, 19 Wall. 606,
609 (1873).— Ed.

2 As to the judgment against the husband, see Mendenhall v. Springer, 3 Harnngton
87 (1840) ; Britton v. Wilder, 6 Hill, 242 (1843). —En.

SECT, 111.] WEISBROD V. CHICACxO AND NORTH-WESTERN RY. CO. 29

in evidence the record of a power of attorne}- from Arabella Crar^ to
Leonard P. Crary, dated June lltli, 1853, and admitted that said
Leonard was the husband of said Arabella at the time the instrument
was executed ; also the record of a warranty deed from Ai-abella CrarN-
and Leonard P. Crary to the plaintiff, executed in June, 1854, by said
Leonard as attorney in fact of said Arabella and for himself; but the
evidence was excluded on the ground that a wife could not at that time
execute a valid power of attorney to her husband, nor execute a deed
by her husband as attorney.

After considerable evidence had been introduced on both sides as to
so much of the land in dispute as fronts lot 1, block E, the court
instructed tliejurv, in sul)stance, that if Miller's land included all the
west half of Hroad Street, and extended beyond the centre of said street,
but did not extend to the east line of the street, so that a strip of land
remained between the east line of the Miller purchase and the east line
of Broad Street, to which Miller had no title, then his quit-claim deed
to the plaintiff did not convey to the latter that i)ait of the street lying
east of its centre and in front of plaintiff's lot; and if the defendant's
track was constructed upon the strip so described, the plaintiff could not
recover. Verdict and judgment for thexlefendant.

Whittemore & JFeisbrod, for appellant.!;

M. A. Eihnonds^ for resi)ondent.

By tlie Court, Dixon, C. J. A feme covert may at the common law
be an attorne3' of another to make liver}' to her husband upon a feoff-
ment ; and a husband may make such livery to his wife. She may act
as the agent or attorney of her husband, and as sucli, with his consent,
bind him by her contract or other act ; or she may act as the agent of
another in a contract with her own husband. Story on Agency, § 7.
If it is no violation of the common law principle of the unity of husband
and wife for the wife to act as the agent or attorne}' of her husl)and, the
conclusion would seem irresistil)!}' to fojlow, that it is no infringement
of the same principle to allow the husbij^ to act as the agent of the
wife in cases where by law she is sui juris and capable of acting for
herself. At common law, the separate existence of the wife was for
many purposes merged in that of the husband, and she could do no act.
Incapable of acting for herself, she could not appoint another to act in
her stead. Her disability was general, and hence we find no cases in
the books of agency in her behalf, either by her husband or another;
certainly none by her husband, unless they be some of very recent date,
and which have arisen since the enactment of statutes enlarging the
rights of married women, and in which the capacity of the husband to
act as the agent of his wife seems rather to have been assumed than
decided. Thus it will be seen from the report that it was assumed by the
Court of Appeals, in Hauptman v. Catlin, 20 N. Y., 247, that the hus-
band might act as the agent of his wife in transactions respecting her
separate estate. Her separate property was charged in an action at
law, under the lien act, upon a contract made by her husband as her

30 BODINE V. KILLEEN. i[CHAP. L

agent. The opinion in the case was written by the same learned judge,
whose language in White v. Wager, 25 N. Y., 328, is quoted b}* counsel
for the respondent to prove that the husband cannot act as such agent.
Thus, too, it was assumed bj* this court in Hobby v. The Wisconsin
Bank, 17 Wis., 167. But in neither case was the capacity of the hus-
band to act, or the power of the wife to appoint him, directly raised or
discussed. The question passed off suh silentio. But, as we have al-
read}' said, there seems on principle to be no reason to doubt the cor-
rectness of the doctrine thus assumed. The disability of the wife has
in man3- respects been removed bj' statute, and she is now capable of
acting not only by herself but by an agent, with no express limitation
upon her power of appointment. If the doctrine of unity does not stand
in the way, as it seems it cannot, then we see nothing to prevent her
making her husband her agent, whenever she chooses to intrust him with
the management of her affairs. It is true that the Court of Appeals
held, in White v. Wager, that the statute does not enable the wife to
convej" land to her husband. It is also true that the statute does not
authorize her to receive b}- gift, grant, etc., from her husband an}- real
or personal property ; and 3'et it would hardh' be contended that this
limitation upon her power to receive directh* abrogates the common law
rule that she ma}' act as the agent of her husband in the sale and dis-
position of the same property' to others. So too at the common law she
could not take b}' grant or gift from her husband ; still she could convey
to others as his agent. The distinction arises from the inherent differ-
ence between a mere power to conve}* and the conveyance itself. The
former is not regarded in the law as a contract, whilst the latter is.
Hence a person incapable of contracting ma}' be the donee of a power ;
and husband and wife, for the purpose of giving and receiving a power
either to and from each other or third persons, are to be considered as
if no relation of marriage existed between them. For these reasons we
are of opinion that the power of attorney from Arabella Crary to her
husband, and the deed from her to the plaintiff executed b}- her husband
as her attorney in fact, should have been received in evidence.^

The judgment is therefore reversed, and the cause remanded for
further proceedings according to law.

MORDAUNT BODINE et al., Respondents, v. MATILDA
KILLEEN, Appellant.

Court of "Appeals of New York. 1873.
[53 N. Y. 93.]

Appeal from judgment of the General Term of the Supreme Court in
the first judicial department, affirming a judgment in favor of plaintiffs,
entered upon a verdict.

1 A paragraph not dealing with Agency is omitted. — Ed

SECT. III.] bodinp: v. killeen. 31

This was an action for goods alleged to have been sold and deliv-
ered by plaintiffs to defendant, a married woman, between Ma}- and
September, 1869.

For several years prior to May 1, 1869, the defendant had carried on
business on her own account at 400 Broome Street, in the city of New
York, and was accustomed to purchase stock in trade of plaintiffs.
Up to the early part of 1868 such purchases were made tlirough her
husband, acting as her agent. lie being taken ill, she subsequently
made the purchases and payments herself. On May 1, 1869, she sold
out to her husband, and he opened and continued a similar business
for himself in Twenty-eighth Street, and made purchases therefor of
the plaintiffs upon credit.

The court charged the jury in effect that they were only to deter-
mine in this case whether notice was given plaintiffs by defendant of
her retirement from business ; that in case the plaintiffs had no such
notice the verdict must be in their favor, to which defendant excepted ;
that if plaintiffs had notice of such fact or knowledge of facts suffi-
cient to put them upon inquiry in respect thereof, and neglected to
make it, the verdict must be for the defendant.

Defendant's counsel requested the court to charge the jury, that in
case they were satisfied from the evidence that defendant at the time
of the purchases in question was not actually engaged in business on
her own account, no recovery could be had against her in this action.
The court refused so to charge, and defendant excepted. The jury
found a verdict in favor of the plaintiffs.

3Toses EI)/, for the appellant.

Cyrus Ldicton^ for the respondents.

Allex, J. With the removal of common-law disabilities from mar-
ried women, corresponding liabilities have necessarily been imposed
upon them. They take the civil rights and privileges conferred, sub-
ject to all the incidental and correlative burdens and obligations, and
their rights and obligations are to be determined b}- the same rules of
law and evidence b}' which the rights and obligations of the other sex
are determined under like circumstances. To the extent, and in the
matters of business in which the}' are by law permitted to engage, they
owe the same duty to those with whom the}' deal, and to the public,
and may be bound in the same manner as if they were unmarried.
Their common-law incapacity cannot serve as a shield to protect them
from the consequences of their acts, when the}' have statutory capacity
to act.

A married woman is sxn Juris to the extent of the enlarged capacity
to act conferred by statute, and may be estopped by her acts and
declarations, and is subject to all the presumptions which the law
indulges against others with full capacity to act for themselves.
Sherman v. Elder, 24 N. Y., 381. Where there is no legal capacity
to contract, a party will not be estopped by falsely representing that he
has capacity, that is, the incapacity is not removed by any fraudulent

32 BODINE V. KILLEEN. [CHAP. I.

representation of the actor. The law will not permit one legally inca-
pacitated to do that indirectly which he or she cannot do directly.
That is especially the case in respect to infants and married women
laboring under tlie common-law disabilities, the law imposing the dis-
qualifications from motives of public policy, and for the safety of those
regarded as weak, and needing this protection. Keen v. Coleman, 30
Penn., 299 ; Lowell v. Daniels, 2 Gray, 161 ; Goulding v. Davidson,
26 N. Y., 604. But the reason of the rule ceasing with the removal
of the incapacity, the rule falls. In the management and control of her
separate propert}', when acting by agents, a feme covert is answerable
for the frauds of her agent while acting within the scope of the agenc}",
although the fraud may be without her knowledge or assent. Baum
V. Mullen, 47 N. Y., 577. By statute (Laws of 1860, chap. 90) a
married woman ma}- carry on an\' trade or business on her sole and
separate account, and the earnings from her trade or business are her
sole and separate property, and she may sue and be sued in all matters
having relation to her sole and separate propertj', in the same manner
as if she were sole. She has all the legal capacity to do every act inci-
dent to the business or trade in which she ma}' engage which a feme
sole would have, that is, full legal capacity to transact the business,
including, as incidents to it, the capacity to contract debts and incur
obligations in any form, and b}' any means, b}' which others acting siii
juris can assume responsibilitj'.

This defendant, for many j^eai's prior to May, 1869, had been doing
business in New York City as a retail grocer, buying her goods of the
plaintiffs on credit. During most of the time, and until some time in
the year 1868, her husband had acted as her agent in making the pur-
chases and payments. The husband was taken ill in 1868, and from
that time she made the purchases and payments to the plaintiffs, but
there was no revocation of the agency of the husband. About the first
of May she transferred the business to her husband, who subsequently
carried it on at a different place in the same city, and bought the bills
of goods for whicli action is brought during the month of May. The
jury have found that there was no notice to the plaintiffs of the change
in the business, and that they had no knowledge of it. Credit was in
fact given to the defendant, and not to her husband. The plaintiffs
had the right to presume that the business of the defendant, and the
agency of her husband in respect to it, continued until actual notice of
change in the business, and a revocation of the agenc}'. SuflTering the
plaintiffs to act upon this presumption, she is estopped from alleging
the contrary. She had capacity to continue the business in which she
had been engaged, and whether she expressly represented to the plain-
tiffs that the business was still hers and her husband was her agent, or
the facts were legally and naturally inferable from her acts, or her
silence, is immaterial. She is bound by the appearances which she has
given to the transaction, and upon the faith of which others have acted,
up to the limits of her legal capacit}' to act. In other words, to the

SECT. IV,] combes' case. 33

extent of her legal capacity, the apparent authority of the husband to
act for and bind her must be taken as the real authority, so far as
others have been induced to act upon it, and have parted with their
property upon the faith of it It is simply because tlie defendant liad
the power to contract the debt for which this action is brouglit, that
she may be estopped l)y her acts from disputing iier liabihty, and the
existence of this capacity takes the case out of the principle of the
authorities relied upon by the counsel for the appellant. This is
the only question presented by the record, or urged by the appellant,
although it is made the subject of several exceptions in different forms
upon the trial. The case was well disposed of at the circuit.

The liability of the defendant does not depend upon the fact that she
was actually carrying on a business or trade on her sole and separate
account, but upon her capacity to do so, with the other circumstances
establishing her liability.

The judgment must be alllrmed.

All concur. Judgment affinned.

SECTION IV.

What Acts can be done through an Agent.

COMBES' CASE.

Common Pleas. 1G13.

[9 Co. 75«.]

In replevin by William Atlee, against Daniel Banks and Thomas
Osborn, of taking of his cattle at Harraonsworth, in a place called Wal-
nut-tree Close, in the county of Middlesex, «&;c. Which plea began
Trin. 8 Jac. Reg. Rot. 330. Upon the pleading, and issue joined, and
special verdict given, the case was such. Thomas Combes, copyholder
in fee of ten acres of pasture in H. of the manor of Harmoiisworth, in
the county of Middlesex, by his deed 22 November, 5 E. 6, consti-
tuted and ordained William Combes and Stephen Erlie, two copyhold
tenants of the same manor, his lawful attornies, to surrender vice &
nomine suo to the lord of the said manor, the said ten acres of pasture
to the use of John Nicholas and his heirs, and afterwards at a Court
held of the said manor 8 Julii anno 6 E. 6, the said attornies tune
tenentes dom* per copiam Rot' Cur' in eadem Cur' ostenderunt scrip-
turn p reed' gerens daf prcBdicf 22 Nov' anno 5, supradicto, et iidem
Willielmus et Stephanus authoritate eis per prced' literam attornatus
doff in plena cur' sursum reddiderunt in maims doni' prced" decern
fwras pasturcB ad opus tb usum prced' Johannis N^icholas hceredum et

34 combes' case. [chap, l

assignatorum suorum, who was at the same court admitted accord-
ingly ; and that within the said manor there was not any custom to
surrender copyhold lands, &c., b}' letter of attorney, either in court or
out of court. And if the said surrender by letter of attorne}- of the
said lands held by copy, &c., was good or not, was the doubt, which
the jury referred to the consideration of the court. And this case was
argued at the bar, in Michaelmas, Hilary, and Easter terms, and in
this term, and in this it was also argued by the justices at the Bench ;
and in this case two points were moved: 1. If a surrender could be
made bj' force of the letter of attorne}' ; 2. If the attorneys had pur-
sued their authority.

As to the first, it was unanimousl}' agreed bj- all the judges in their
several arguments, that the surrender in the case at bar made b}' letter
of attorney was good ; and their reason was, because ever}' copyholder
having a customary estate of inheritance may, de comimmi Jure, with-
out an}' particular custom, surrender his lands held by cop^^ in full
court, and therefore in pleading the copyholder need not allege a cus-
tom within the manor to surrender in court ; for that which is the
usage /)er totatn Angliam is the common law as it is held in 34 H. 8
Br. Custom 59, & 34 H. 8, Dy. 54, qxiod hahetur co?isuetudo inter
mercatores per totam Angliam, <&c., is no good manner of alleging
a custom, for that is the common law ; and in the Book of Entries,
Tit. Tresp. Divisione Copyhold 1, f. 568, no custom is alleged to enable
a copyholder to surrender in full court, no more than that a copyholder
ma}' make a lease for one year ; because that he ma}' do b}- the general
custom of the realm, which is the common law, vide Bracton, lib. 2, c. 8.
Then if a copyholder ma}' surrender his estate in court by the general
custom of the realm, which is the common law, from thence it follows
that he may do it by attorney, as a thing incident by the common law :
and that will more clearly appear if the reason of such things which a
man cannot do by attorney be well considered. And therefore if a man
has a bare authority coupled with a trust, as executors have to sell
land, they cannot sell by attorney ; but if a man has authority, as
absolute owner of the land, there he may do it by attorney, as Cestui
que use might after the statute of 1 R. 3, and before the statute of 27
H. 8, for Cestui que use had an absolute authority to dispose of the
land at his will, without any confidence reposed in him, as appears in
11 Eliz., Dyer, 283, and there a judgment is cited in 25 H. 8 accord-
ingly, against the opinion of some judges in 9 H. 7. 24. But in the
case at bar, the copyholder has a customary estate of inheritance, and
not an authority or power only. Also there is a difference betwixt
a general absolute power and authority as owner of the land, as afore-
said, and a particular power and authority (by him who has but a
particular interest) to make leases for life or years. And therefore if
A. be tenant for life, the remainder in tail, &c., and A. has power
to make leases for twenty-one years, rendering the ancient rent, «fec.,
he cannot make a lease by letter of attorney by force of his powert

SECT. IV.] combes' case. 35

because be has but a particular power, which is personal to him ; and
so was it resolved in the case of the Lady Greshatn at the assizes in
Suffolk in quadrageslnV 24 El. by Wra^' and Anderson, Chief Jus-
tices, Justices of Assise there. Also there are some things personal,
and so inseparably annexed to the person of a man, that he cannot do
them by another, as doing of homage and fealt}' : so it is held in 33
E. 3, Trespass 2o3, the lord may beat his villain for cause, or without
cause, and the villain shall not have any remedy ; but if the lord com-
mands another to beat his villain without cause, he shall have an action
of battery against him who beats him in such case. So if the lord
distrains the cattle of his tenant, although nothing be behind, the ten-
ant for the respect and duty which belong to the lord, shall not have
trespass vi et armis against him : but if the lord commands his bailiflf
or servant in such case to distrain where nothing is behind, the tenant
shall have an action of trespass ci et armis against the bailiff or ser-
vant. 2 U. 4. 4. a. 11 H. 4. 78. b. 1. H. G. 6. a. 9 II. 7. 14. a.

Littleton, in his chapter of Burgage, holds that where in a borough
be who is seised of lands in fee may devise b}' custom, there the owner
of such land ma}- devise that bis executors shall sell, which they shall
do as attornies to him, 3 E. 3. Coron. 310. by the custom of a manor
a freehold will pass from one to another by surrender in court, against
the will of the lord, and where the custom is such, the tenant may do
it b}' attorney', vide 14 H. 4. 1. a. by Hankford, & vide 19 Ass. p. 9.

And it was said, as he to whose use a surrender is jnade nia}" be
admitted by attorney', so a copyholder may surrender by attornc}' in
full court ; and the case of him to whose use seems the stronger case,
because he who is to be admitted is to do fealt}-, which none can do
fealt}' but he who shall be admitted, and therefore in such case the
lord may refuse to admit him by attorney ; but if he admits him by
attorney, it is good enough.

But Hil. 28 Eliz. in Chapman's case it was held in the King's Bench
that where the custom of a manor is, that the copyholder out of court
may surrender into the bands of the lord of the manor b}' the hands of
two customary tenants, who in effect are but instruments or attornies
of the copyholder to take his surrender, that in such case the cop}'-
holder by his attorney cannot surrender into the bands of the lord by
the hands of two copyhold tenants ; for inasmuch as the surrender in
such case ought to be warranted b}' the custom, tlie surrender without
special custom to warrant it by attorney will not be good. Also that
was upon the matter by attorney to make a surrender by others who
are but attornies, for that is not warranted by the particular custom of
the manor to make a surrender out of court. But in the case at bar
the common law, and no particular custom, warrants the surrender,
and therefore it may well be made according to the rule and reason of
the common law by attorney. But it was resolved, that the attorney
ought to pursue the manner and form of the surrender in all points
according to the custom, as the copyholder himself ought to have

36 combes' case, [chap, l

done ; as if the surrender by the custom ought to be b}' the rod, or by
any other thing, or in an}- other manner, the attorney ought to pursue
it. And the Chief Justice said that the style of a copyholder imports
three things: 1. Nomen, his name. 2. Originem, his commence-
ment. 3. Titul, his assurance. His name is tenant by copy of court-
roll, for his name is not tenant by court-roll, but by copy of court-roll,
who is the sole tenant in law that holds by copy of any record, char-
ter, deed, or any other thing. 2. His commencement, ad voluntatem
domini; for at the beginning he was but tenant at the will of the lord.
3. His title or assurance secundum consuetudinem manerii, for the
custom of the manor has fixed his estate, and assured the land to him
so long as he doth his services and duties, and performs the customs
of the manor. And therefore Danby saith in 7 E. 4. 19 a. that bj' the
custom he is as well inheritable to have the land, as tenant to hold his
freehold by the common law. And it was resolved that this case was
stronger, because the letter of attorne}' was made to those who were
tenants by copy, &c., of the said manor. But it was agreed that
where an infant at the age of fifteen years may make a feoffment that
he cannot do it by attorney, because a custom which enables a person
disabled by the law ought to be pursued, and an infant can do nothing
to pass anything out of him by attorne}' : vide 11 H. 4. 33. a. and it
would be hard if men in prison, or sick, or beyond the sea, could
not make surrenders of their lands held b^' copy for payment of their
debts, or preferment and advancement of their wives and children,
«&:c. Nbta, reader, this is the first case that I have known which
was adjudged in this point.

2. It was resolved that when an}' has authority, as attorne}-, to do
any act, he ought to do it in his name who gives the authority ; for he
appoints the attorne}' to be in his place, and to represent his person ;
and therefore the attorne}' cannot do it in his own name, nor as his
proper act, but in the name, and as the act of him who gives the
authority. And where it was objected that in the case at bar, that the
attornies have made the surrender in their own names ; for the entr}' is
Quod iidem Williehmis et Stepha^ius, &c., sxirsum reddiderunt^ &c.
It was answered and resolved, per totam curiam, that they have well
pursued their authorit}- : for first they showed their letter of attorne}',
and then they authoritate eis per prced' litera7n attornaV daf siirsum
reddiderunt, &c., which is as much as to say, as if the}" had said, we
as attornies of Thomas Combes, surrender, &c., and both these ways
are suflBcient ; as he who has a letter of attorney to deliver seisin saith,
I as attorney to J. S. deliver you seisin ; or I by force of a (this) letter
of attorney deliver you seisin ; and all that is well done, and a good
pursuance of his authority : but if attornies have power by writing to
make leases by indenture for years, &c., they cannot make indentures
in their own names, but in the name of him who gives them warrant.
But if a man by his will in writing devises that his executors shall sell
his land, and dies, there the executors in their own name may sell the

SECT. IV.] HYDE V. JOHNSON. 37

land for necessit}", because he who gives them authority by his will
(which takes effect after liis death) is dead ; and yet in such case the
vendee is m by the devisor.

HYDE V. JOHNSON.
Common Pleas. 1836.

[2 Bing. N. C. 776.]

In this action the plaintiff, in order to recover a debt barred by the
Statute of Limitations, offered in evidence at tlie trial before the under-
sheriff, a letter written by the defendant's wife, in her husband's name,
at his request, offering to pay the debt by instalments, and sent by him
to the plaintiff.

The evidence was objected to as not signed '' by the party cliargeable
thereby," within tlie meaning of 9 G. 4. c. 14, § 1 ; but the under-
sheriff received it, and a verdict was taken for the plaintiff with leave
for the defendant to move to set it aside, and enter a nonsuit instead,
if the court should be of opinion that the letter ought not to have been
received. Accordingly,

Chilton having obtained a rule nlH to that effect,

Byles showed cause. It is true the statute requires the acknowledg-
ment to be signed b}' the party chargeable thereby, and, except in § 7,
where it recites the statute 21 Jac. 1, c. 16, does not employ the word
" agent ; " but a man's agent is as much implied in the mention of himself
as his executor or administrator ; and great inconvenience would ensue
if a party were not allowed in all cases to bind himself by the recog-
nized acts of his agent. According to that construction of the statute,
a party unable to write would never be capable of making a binding
acknowledgment of a debt. In Whippy v. Hilary, 3 B. & Adol. 399,
it was held that the Statute of Limitations was not barred b^' a letter
in which the defendant stated " that family arrangements had been
making to enable him to discharge the debt ; that funds had been ap-
pointed for that purpose, of which A. was trustee ; and that defendant
had handed the plaintiff's account to A. ; that some time must elapse
before payment, but that defendant was authorized by A. to refer the
plaintiff to him for any further information ; " but that was because by
the statute 9 G. 4. the acknowledgment must be signed by the party
chargeable tliereby ; and such letter did not charge the defendant.

Kdly and Chilton in support of the rule.

If the signature of an agent be admitted, parol evidence must also
be admitted to prove the agent's authority, and then all the inconven-
ience will be reproduced which the statute was passed to obviate. And
after the recital of the statute 21 Jac. 1, c. 16, which contains the
word '' agent." the omission of that word in the enacting part of 9 G. 4.

38 HYDE V. JOHNSON. [CHAP. 1.

c. 14, cannot be esteemed accidental. The object no doubt was to
exclude the temptation to i)erjury in the proof of agenc}-. Where a
written acknowledgment has been destroyed, parol evidence may be
given of its contents : Haydon v. Williams, 7 Bing. 163 ; but that is on
the general principle which admits secondary evidence where primary
has existed, but is no longer forthcoming. Here the statute meant to
exclude the question of agency altogether. As to the difficulty sug-
gested with respect to parties who may be unable to write, they may at
least affix their mark, as in otlier cases. In Lyde v. Barnard, 3 Ci-. M.
& Ros. 101, Lord Abinger, C. B., says: "The obvious policy of this
statute was to prevent that fraud and perjury which had been found by
experience, or was thought probable, to arise from trusting to evidence
of less authority than tliat of a written document."

Cu)'. adv. vult.

TiNDAL, C. J. Tlie short question in this case is, whether a letter
offering to pay a debt by instalments written b}- the defendant's wife to
the plaintiff in her husband's name, and at his request, and afterwards
sent by him to the plaintiff, is a sufficient acknowledgment or pronn'se
" made or contained by or in some writing, signed b}- the party cliarge-
able thereb}-," within the meaning of the 9 G. 4. c. 14, § 1.

The question turns entirely on the construction of the statute, and it
amounts in other words to this, — does the statute 9 G. 4. c. 14 extend
to a writing signed b}- an agent of the party, or is it confined to a
writing signed by the party himself? Looking at the words of the
statute, it is confined in terms to a writing " signed by the part}'
chargeable thereby." And as the effect of that statute is, for the first
time, to introduce a legislative exception into the statute of 21 Jac. 1,
c. 16, and thereby pro tanto, to repeal it, we do not feci ourselves justi-
fied in extending such exception beyond the plain and unambiguous
meaning of the words employed therein. The legislature has, in many
statutes, given equal efficacy to written instruments when signed by
the parties, and when signed by their agents ; but in all those cases
express words have been employed for that purpose. The Statute of
Frauds, in its third section, requires for the purposes of that section, a
note in writing to be signed by the party, "or their agents thereunto
lawfully authorized by writing ; " in the fourth section, a memorandum
or note in writing is required, " signed by the party to be charged
therewith, or some other person thereunto by him lawfully authorized ; "
in the fifth section, a devise of lands is required to be made in writing
to be "signed by tlie party so devising, or by some other person, in
his presence, and by his express directions ; " in the seventh section, a
declaration of trusts of any lands shall be in writing " signed by the
party ; " and lastl}', the seventeenth section requires upon the sale of
goods, that there shall be some note or memorandum in writing of the
bargain, " signed by the parties to be charged by such contract, or
their agents thereunto lawfully authorized." It appears, therefore, that
the legislature well knew how to express the distinction, not onlj- b<j

SECT. IV.] IN RE WHITLEY PARTNERS. 39

tween a signature by tlie party, and a signature by his agent : but also
to describe the different modes by which agents for diilerent purposes
are to be appointed. Tiie same observation arises upon referring to
the more recent statutes, 3 & 4 W. 4. c. 2, § 42, and c. 42, § 5. When,
therefore, we find in the statute now under consideration that it ex-
pressly mentions the signature by tlie part}- onh', we think it a safer
construction to adliere to the precise words of the statute, and that we
should be legislating, not interpreting, if we extended its operation
to writings signed, not by the party chargeable thereby', but by his
agent. And we feel ourselves the more compelled to adopt this con-
struction, as we find the seventh section of this same statute recites the
seventeenth section of the Statute of Frauds ; so that the legishiture
must Iiave had in their view, at the very time of passing this statute,
and therefore must have intended, the distinction between writings
signed by a party, or signed by his agent.

Some inconveniences have been pressed in the course of the argu-
ment upon our attention, in cases where a total inabilit}' of parties to
sign may exist ; but the nature of the signature which is necessary to
comply with the requisites of the statute is such as to make it almost
impossible to suppose a case in which a party could not make such a
signature as would satisfy the statute. And, after all, in construing a
statute, we must not look to cases of very rare and singular occurrence,
but to those of ever}' day's experience ; and whatever may be the
consequence, we must interpret the statute according to the plain
import of the language employed in it.

Upon the whole, we think in this case, the latter was not a sufficient
writing signed by the party, to take the case out of the operation of the
enactments of 21 Jac. 1. c. 16. And, therefore, direct a nonsuit.

Rule absolute}

In re WHITLEY PARTNERS, Limited.
Court of Appeal. 1886.

[32 Ch. D. 337.]

This company was registered on the 10th of November, 1873, as
a company limited by shares. The memorandum of association pur-
ported to be signed by eight persons, the name of Mr. Callan appearing
last, as a subscriber for 100 shares; and the articles of association
purported to be signed by him in respect of the same number of shares.
Tlie company was unsuccessful and was ordered to be wound up. Mr.
Callan was put on the list of contributories for 100 shares, and about

1 The doctrine of this case was abrogated by the Mercantile Law Amendment Act
19 & 20 Vict. c. 97, § 13.

See Swift v. Jewsbury, L. K. 9 Q. B. 301, 310-313, 316 (1874).— Ed.

40 IN KE WHITLEY PARTNERS. [CHAP. L

the end of May, 1880, received notice of a call. He placed the matter
in the hands of his then solicitor, and, as he deposed, heard no more
about it till December, 1882, when he was served with orders for pay-
ment of calls. He disputed his liabilit}-, alleging that he had never
agreed to take shares in the companj' nor signed the memorandum or
articles.

On investigation it appeared that the signature of Mr. Callan
to the memorandum and articles was not in his own handwriting, but
had been written b\- a Mr. Oakley, who had simply signed Mr. Callan's
name without anything to indicate that the signature was not written
b}' Mr. Callan, but by some other person as his attorney or agent,
Mr. Oakle}' deposed that in October, 1873, he received from Mr. Callan
authorit}', verbally and by telegram, to sign Mr. Callan's name to the
memorandum and articles, but it was not alleged that any authority
was given by deed, nor was an}' written authority produced, and Mr.
Callan denied having given an}' authority at all. Vice-Chancellor
Bacon having refused to remove the name of Mr. Callan from the list
of contributories, Mr. Callan appealed.

Theodore Hibton, for the Appellant.

Harten, Q. C, and Oswald, contra, were not called upon.

Cotton, L. J. This is an appeal from a decision of Vice-Chancellor
Bacon, who has refused to remove the name of the appellant, Mr.
Callan, from the list of contributories. It is conceded that his signature
to the memorandum and articles was not written b}' himself, but the
liquidator contends that it was written by his authorit}'. The a))pellant
says that this is not enough, even if there was authority, which he
denies. The case turns upon these questions, there being no other
evidence that Mr. Callan ever agreed to take shares. Now there is
nothing in the Companies Acts expressl}' requiring that the memoran-
dum and articles must be signed by the subscribers with their own hands,
but it is contended by the appellant that the Act according to its true
construction requires personal signature. Sect. 6 of the Companies
Act, 18G2, provides that " any seven or more persons associated for
any lawful purpose ma}' by subscribing their names to a memorandum
of association, and otherwise complying with the requisitions of this
Act in respect of registration, form an incorporated company," and by
sect. 11 it is provided that the memorandum of association "shall
be signed by each subscriber in the presence of, and attested by, one
witness at the least." The appellant contends that as nothing is
said in the statute about signature by an agent, these expressions
must mean that the signature is to be affixed by the subscriber him-
self. In support of this, Hyde v. Johnson, 2 Bing. N. C. 776, is
referred to. That case I think was decided on the special ground
that the enactment which the court was then considering was one of a
series of enactments which made a distinction between a man's sign-
ing by himself and signing by an agent, and it was therefore con-
sidered that where signature by an agent was not mentioned the Act

SECT, IV.] IN RE WHITLEY PARTNERS. 41

required signature by the man hiraself. That may be quite right, but
in the present case the enactment we have to construe is not one of a
series of enactments some of wliich refer to signature by an agent, and
I think it would be wrong to hold that an enactment simply referring
to signature is not satisfied by signature by means of an agent.
Suppose seven persons sitting round a table with a view to signing a
document, and one of them says to another, "Sign it for me," are
we to say that tiie signature affixed under this authority is insufficient?
I am of opinion that it is quite effectual. The signature in the present
case is irregular, for it ought to have been "P. Callan, by Oakley his
attorne}- ; " but this irreguhirit}- will not make the signature invalid if
there was authority to affix it.

It was urged that assuming authority to have been given it was not
dul\' given, for that as the memorandum of association is equivalent
to a deed, the authorit}' to sign it ought to have been given by deed.
That is a fallacv. The memorandum has for certain purposes the effect
of a deed. But it is not a deed. An authoritv to sign and seal an
instrument must be given by deed, but though signature of the
memorandum is made by the Act equivalent to signing and sealing, the
memorandum is not signed and sealed. The authority to sign it there-
fore need not be given by deed.

[His Lordship then entered into a consideration of the evidence on
the question whether Mr. Callan had given authority to sign the
memorandum, and stated his conclusion to be that such authority had
been given, and that the memor\- of Mr. Callan, who had been much
engrossed by political matters at the time, was defective on this
subject.]

BowEN, L. J. I am of the same opinion. [His Lordship then stated
his reasons for agreeing with the conclusion of Lord Justice Cotton as
to the question of fact.]

As regards the question of law, it is contended by the Appellant
that it is not sufficient for a man to sign the memorandum of
association by an agent, but that he must sign it himself. In ever}'
case where an Act requires a signature it is a pure question of con-
struction on the terms of the particular Act whether its words are
satisfied by signature b}' an agent. In some cases on some Acts the
courts have come to the conclusion that personal signature was re-
quired. In other cases on other Acts they have held that signature
by an agent was sufficient. The law on the subject is thus summed
up by Blackburn, J., in Reg. i\ Justices of Kent, Law Rep. 8 Q. B.
305, 307: ''No doubt at common law, where a person authorizes
another to sign for him, the signature of the person so signing is the
signature of the person authorizing it ; nevertheless there may be cases
in which a statute may require personal signature." Quain, J., then
says. "We ought not to restrict the common law rule quifadt per nil urn
fadt -per se, unless the statute makes a personal signature indispen-
sable." Archibald, J., savs : "I think this case comes within the

42 BARR V. LAPSLEY. [CHAP. I.

common law rule, qui facit jier alium facit 2'>eT se, and ihere is nothing
in the statute to qualify the operation of that maxim. It is easy to
understand that there may be cases in wliich a different construction
must be put on particular statutes." Hyde v. Johnson, 2 Bing. N. C.
776, was decided on the ground that Lord Tcnterden's Act was to be
read along with the Statute of Frauds, which expressly refers to
signature by an agent, and tliat a clause which contained no reference
to an agent was therefore to be held to require personal signature. In
the present statute tliere is nothing in the wa}' in whicli the memoran-
dum of association is dealt with to show that the Legislature intended
anything special as to the mode of signature. The principle of Hyde
V. Johnson therefore cannot be invoked in this case, and the general
rule that a man may sign b3' an agent is not interfered with. I agree
with Lord Justice Cotton that there is no ground for requiring the
authority to sign the memorandum of association to be given by
deed.

Fry, L. J. I cannot usefully do more than express my entire con-
currence in the judgments of the Lords Justices.^

SECTION 'V.

Sow an Af/ent is appointed.

{A) Gf:NERAL Pkinciples.

BARR V. LAPSLEY.
Supreme Court of the United States. 1816.

[1 Wheat. 151.]

Appeal from the Circuit Court of the District of Columbia. This
cause was argued by Jones., for the appellants and complainants, and
Harper, for the respondents and defendants.

Johnson, J., delivered the opinion of the court.

The object of this bill is to obtain a specific performance of an alleged
agreement to receive a quantity of cotton bagging, at a specified price,
in satisfaction of certain judgments at law. The defendants deny that
the circumstances proved ever rendered the agreement final and obliga-
tory upon them ; and this is the principal, perhaps the only, question
the case presents.

It appears that the complainants were indebted to one West, who
assigned this debt (then unliquidated), together with the residue of his
estate, to Lapsley et al. ; that Lapsley liquidated the debt with the
Barrs, and took their notes payable at different periods, making up,

1 And see Finnegan v. Lucy, 157 Mass. 439 (1892). — Ed.

SECT. V.J BARR V. LAPSLEY. 43

together, the amount clue. These notes having become due, and judg-
ment being recovered on some of them, in October, 1811, the Barrs
addressed a letter to Lapsley, in which they offer to pay him in cotton
bagging, at thirt3-three cents per yard, by instalments, at certain
periods. On the ITtli of December, in the same year, Lapsle}'
answered their communication, and the following words, contained in
that letter, are all that tlie court deem material to the point on which they
propose to found their decision : " We are willing to take cotton bag-
ging in liquidation of the three last notes, delivered at the period you
propose, but not at the price you offer it." '' We expect that you give
us satisfactory accounts for tlie punctual performance of your engage-
ments, and to tliis effect we shall direct Mr. M'Coun, to whom we pro-
pose to write by the next mail," On another passage of this letter,
and a letter written by West, on the 18th of December, it has been
contended that certain conditions were imposed upon the Barrs, which
it was incumbent upon tliem to comply with before the}- could claim
the benefit of the offer contained in Lapsley's letter. But, as the
opinion of this court is made up on a ground whoU}' unaffected by this
question, we deem it unnecessary to notice this point. It appears that
Lapsley never, in fact, instructed M'Coun on the subject of this letter
of the 17tli of December. But Warfield, the agent of the Barrs (who
were absent from home on the receipt of that letter), supposing his prin-
cipals to be referred to M'Coun as the authorized agent of Lapsley,
notified to him the acceptance of Lapsley's offer, and remained under
the impression that the agreement had become final, notwithstanding
M'Coun's declining, altogether, to act, for want of instructions. Laps-
ley, on the other hand, alleges that tlie notification of acceptance ought
to have been made to himself, and assigns the want of an answer from
the Barrs as his reason for never having given instructions to M'Coun.
This state of facts presents an alternative of extreme difficult}'. On
the one hand, Lapsley, b}' writing that he shall direct M'Coun, by the
next mail, plainly pointed to a mode of expediting the conclusion of the
agreement, through the agency of a representative on the spot, and when
he intimated his intention to write b}' the next mail, showed that it was
not his intention to await Barr's answer. This was well calculated to
delude Barr into the idea that Lapsley would recognize no notification
but that which should be made to M'Coun. On the other hand, how
far could M'Coun, unempowered, uninstructed as he was, legall}' act,
to bind Lapsle}' by his acceptance of the notification? Or, if he had
received instructions from Lapsley, what obligation was he under to
have undertaken the agency? Under the pressure of this dilemma,
there is but one principle to which the court can resort for a satisfac-
tory decision. Something remained for Barr to do. The notification
of his acceptance was necessary to fasten the agreement upon Lapsley.
For this purpose, he very rationally addressed himself, in the first place,
to M'Coun ; and the reference to Lapsley's letter would have been a
sufficient excuse for not returning an answer until a reasonable time

44 MEADER V. PAGE. [cHAP. L

had elapsed for M'Coun to receive the expected communication from
Lapsley. But when he found M'Coun uninstructed, and unwilling to
act under the letter addressed to Barr, his course was plain and une-
quivocal. A letter to Lapsley, transmitted by the mail, would have
put an end to all doubt and difficulty. This is the method he ought to
have pursued, and for not having pursued this course, we are of opinion
that the bill was properly dismissed below.

Decree affirmed.

MEADP:R v. page, appellant.
Supreme Court of Vermont. 1866.

[39 Vt. 306.]

Book account. The case was heard upon the auditor's report at
the June Term, 18G6, Steele, J., presiding, when judgment was ren-
dered for the plaintiff; exceptions b}' defendant. In respect to item
number four, the one in dispute, cash $11.00, the auditor reported as
follows: "It appeared that the defendant, about the month of
October, 1862, left his home in Ryegate for New York, and has since
that time been living and at work in the state of New York, a con-
siderable part of the time, being at home several months at a time, at
several different times since leaving home, his wife and family remaining
at his residence at Ryegate ; that Mrs. Page has kept house and managed
affairs at home ; that the defendant has from time to time sent home
money to his wife to use in taking care of the family ; that in June,
1863, one of the defendant's children died at Ryegate ; that the defend-
ant was at home at the time and agreed with one Jenkins, of Bradford,
to furnish a set of gravestones for the child, and also a set for the
defendant's father (who died previously), at the sum of $2.5.00. The
defendant then returned to New York, agreeing to send home money to
his wife to pay for these gravestones. Jenkins furnished and set up
the gravestones, as agreed, where the}' now stand, and subsequent!}'
the defendant sent home money to his wife to pay for them. It so
happened when the money was sent the article of flour was rising in
price, and had advanced to fifteen dollars per barrel, and Mrs. Page
was advised that it would advance higher, perhaps to $20.00, and
desiring to provide a supply for the time to come, bought a barrel, at
$15.00, and at the same time bought several other articles at the
store for family use, and paid out of the money so sent, and had n't
enough left to pay for the stones, when Jenkins should call for it,
which was soon expected; she therefore borrowed $13.00 of the plain-
tiff, and when Jenkins came she paid for the gravestones therewith,
and with other money she had left on hand. Mrs. Page agreed to pay
the plaintiff back the money, when she borrowed it, in two or three
weeks, and he called on her for the money, but she not having it paid

SECT, v.] HEADER V. PAGE. 45

liirn two dollars only, and the balance, eleven dollars, not being paid,
the plaintiff subsequently charged to the defendant, which is the item
No. 4, in his account. It did not appear to what extent the defend-
ant gave his wife authority to transact business at home ; he left her
there to manage for him at home, what might be necessary to be
done, considering their respective situations, and the defendant testi-
fied that his wife took care of business pretty well, quite as well as the
neighbors generally did, and would have done very well, if the neigh-
bors had let her alone. It did not appear that he ever gave her any
specific instructions, or that he left business to be done by any other
person than his wife. lie had no other agent. It appears that Mrs.
Page took care and got along at home by her own efforts and with
what mone}' her husband sent or gave her from time to time. It did
not appear that the defendant ever acknowledged that his wife bor-
rowed anj' mone}' of the plaintiff or that he ever promised to pay the
plaintiff."

Leslie & Rogers, for the defendant.

A. Underwood, for the plaintiff.

The opinion of the court was delivered by

Peck, J. In relation to the item of $11.00 in the plaintiffs account,
it cannot be assumed that the credit was given by the plaintiff to the
defendant's wife and not to the defendant. The auditor does not so
find, and the facts, in the absence of such finding, do not lead to that
conclusion. As the defendant was absent at work in New York, and
only occasionally at home, and his wife remaining at the defendant's
residence in Ryogate with his famil}', managing his affairs at home, it
is probable the plaintiff ma}' have expected the payment would be
made through the agency of the wife. But this does not show that the
plaintiff did not give the credit to the husband, especially as he was
sending money home to his wife from time to time as the wants of the
family and the necessity of his business affairs left in charge of his wife
required. The credit must be intended to have been given in fact to
the defendant.

But it is insisted that the wife had no authority to bind the defend-
ant in the transaction of borrowing this money. This proposition is
correct if it is to depend simply on the implied power of a wife arising
from the legal relation of husband and wife without reference to the
attending circumstances. Nor does the case come within the principle
of those cases where the husband abandons his wife, or turns her away
without cause, destitute of means of support ; for here was no such
state of facts. Nor is any express authority shown to borrow mone^',
either generally or in this particular instance. But it is conceded by
the defendant's counsel that a wife may bind the husband in certain
domestic affairs, such as are usual to intrust with the wife. The extent
of this power, however, depends very much on the attending facts and
circumstances. It is usually more extensive in case of the absence
of the husband for long periods of time than when he is at home

46 MEADER V. PAGE. [CHAP. I.

managing his own business. But upon the facts reported in this
case, there was an agenc}- in fact arising from the absence of the
husband, and from his having left his wife with the care of the family
and in the management of his affairs at home. This agenc}', howe^;er,
was not unlimited. The power must be construed in reference to the
nature and extent of the business afiairs entrusted to her charge. On
this point the report is not very full or explicit. It appears, however,
that the defendant's wife " kept house and managed affairs at home,
and that the defendant from time to time sent home money to his
wife to use in taking care of the family," etc. The auditor reports
also that '' it did not appear to what extent the defendant gave his
wife authority to transact business at home ; he left her there to
manage for him at home what might be necessary to be done, con-
sidering their respective situations," and that the defendant testified
that his wife took care of business pretty well, quite as well as the
neighbors generally did, etc. This shows that the defendant gave his
wife some scope for the exercise of her judgment in his business
affairs. Considering that she borrowed the money (the $13.00) to
help to pay a debt that the defendant himself contracted, and which
he directed her to pa}', and which she did pa}', we think under the
circumstances stated in the report, it came within the scope of her
agency. It is true the defendant sent his wife money to pay that debt
for the gravestones when they should be delivered and set up, but as
flour was rising in price, and she being advised it would soon be still
higher, she judged it prudent and good economy to buy a barrel of
flour for the family with a portion of the money, which she did at
$15.00, and some other articles at the store for family use, and bor-
rowed the S13.00 to make up with what she had, a sum sufficient to pay
the debt for the gravestones. The flour and other articles were for
the use of the family, and must be intended as necessaries in kind ;
and it is not found by the auditor that they were not necessary, in fact,
under the circumstances. The auditor further reports that it did
not appear that he, the defendant, ever gave her any specific instruc-
tions ; that he had no other agent ; that his wife took care and got along
at home by her own efforts and what money her husband furnished
her from time to time. From this and other facts reported, it is
evident that the defendant contemplated his wife, in such small matters
as are embraced in the plaintiffs account, would exercise her judg-
ment and discretion. If she had paid for the gravestones out of the
money the defendant sent her, and borrowed the money in question
to buy the flour, there can be no doubt but it would have charged the
husband. The using of some of the money sent as she did, and re-
placing it with the money borrowed, is the same in efiect, and was within
the scope of her agency, and the plaintiff had a right so to understand
it. There was an agency in fact, and what she did was within the scope
of her apparent agency. The item of forty cents for horse to Wells River
must be regarded as embraced within the domestic affairs intrusted to

SECT. V.J PAGE V. METHFESSEL. 47

her charge, without proof of the actual necessity for it at the time. No
questions is made as to any other items, except item for the lialter
which is not before us, as the plaintiff did not except.

Judgment affirmed}

PAGE V. METHFESSEL.

Supreme Court op New York, General Term, Fourth
Department. 1893.

[71 Hun, 442.]

Appeal by the defendant, Anton G. Methfessel, from a judgment
of the Supreme Court, entered in the office of the clerk of the county
of Oswego on the 25th da}* of Juh', 1892, upon the report of a referee,
with notice of an intention to bring up for review upon such appeal
the order made by the referee herein, dated June 4, 1892. •^

In the com})Iaint, it is alleged that at divers times between October
7, 1890, and June 10, 1891, the plaintiffs, at the request of defendant
and on his promise to pay therefor, sold and delivered to him goods
at prices agreed upon and payable in sixty days, amounting to and of
the value of $4078.90. The answer denies, in substance, all the
allegations of the complaint, except that the defendant admits he has
been requested to pay certain money's to plaintiffs.

Van Hoevenherg & Holt, for the appellant.

J). P. 3forehoHse, for the respondents.

Merwin, J. All of the goods for which a recovery has been had
in this case were ordered b}' "Philip Michel, Agent," and were
shii)ped by plaintiffs to " Philip Michel, Agent," at Stapleton, Staten
Island, and were charged in the same wa}^ upon plaintiffs' books.
The referee has found that the defendant, by his acts and conduct in
these and similar prior transactions with plaintiffs, held Michel out to
them as his agent in purchasing these goods, and that in reliance upon
that, and in the belief, induced by such acts and conduct, that defend-
ant was the principal behind Michel, they made the sales in question.
In other words, it was held that the plaintiffs had the right to treat the
defendant as the principal in the transactions. The question in this
case is whether such finding of the referee is sustained by the evidence.

The plaintifTs are manufacturers at Minnetto, Oswego Count}', of
shade-cloth, window-curtains and fixtures, under the firm name of the
Minnetto Shade-Cloth Company-. The defendant, since April 1, 1886,
has resided at Stapleton, Staten Island, and owned there a factory

^ See Cliurch v. Landers, 10 Wend. 79 (1833); Benjamin v. Benjamin, 15 Conn.
347 (1843) ; Felker v. Emerson, 16 Vt. 653 (1844). — Ed.

2 The reporter's statement has not been reprinted in full. — Ed.

48 PAGE V. METHFESSEL. [CHAP. L

building for the manufacture and decorating of shade- cloth into
window-shades. During this period, Philip Michel, who is a practical
window-shade manufacturer, lived at Stapleton. In the latter part of
April, 1866, and before the 29th, the business of manufacturing and
decorating window-shades at defendant's factory was commenced under
the name and style of *' Philip Michel, Agent," and such business
was carried on under that name until after June 9, 1891. During this
time Michel was the practical shade maker and managing agent of the
business, and defendant was the office man and book-keeper, and had
charge of the finances of the business. On the 29th April, 1886,
Michel, as agent, had a negotiation with one Gillett, who was a sales-
man and agent of the plaintiffs in reference to the purchase of goods
from the plaintiffs for the purpose of manufacturing and decorating in
said factory. Gillett inquired of Michel as to his financial responsibil-
ity, and Michel replied, "I have a friend who will advance me some
money to do business ; " and thereupon Michel took Gillett to the house
of defendant, introduced him to defendant, and then left. After
Michel left, Gillett asked defendant whose agent Michel was, and
defendant replied : —

"He has been unfortunate, and cannot use his own name. I am
ready to assist Mr. Michel according to mj- ability. All the orders
received from Mr. Michel, countersigned by myself, I will be responsi-
ble for."

The defendant, then, at Gillett's request, wrote, signed, and de-
livered to him a memorandum, of which the following is a copy : —

Stapleton, April 29, 1886.

I herewith declare myself to be responsible for all orders sent by Phil. Michel,
Agent, to the Minnetto Shade-Cloth Company, if the same are countersigned by me.

A. G. Methfessel.

After this, and on the same day and occasion, an order was signed
and delivered to Gillett, as follows :

Philip Michel, Agent.

1 pc. ea. 18-32-38-62-66-68-64-58.

Philip Michel, Agent, Stapleton. A. G. Methfessel.

These goods were shipped as directed, and soon thereafter the plain-
tiffs received in payment thereof from the defendant, by mail, his
individual check on the German-American Bank of New York for the
amount of the order, less a discount of 2 per cent allowed for payment
within 30 days. The next order seems to have been about May 25th,
and not countersigned by defendant, by reason of his absence. On
the 21st June, 1886, the defendant writes to the plaintiffs, inclosing an
order, as to which he says : " You will oblige me by sending at your
very earliest convenience to Phil. Michel, Agent." He also inclosed
his check for the amount of seven bills from May 25th to June 14th.
In this letter he also sa.vs : —

SECT. V.J PAGE V. METHFESSEL. 49

" Our iuteution is to pay alway.s cash, and, if we do not do it this time, it is becaose
I was abseut on a trip west, and we thought that the goods bouglit of you iu the first
days of May would la.st until my return. Orders, however, coming in earlier and
larger tliau we expected, Mr. Michel applied to you for more goods, which you
sent without my guaranty, thereby doing us a favor, for which we feel grateful. I
send the full amount of those seven bills, trusting that you will allow all the discount
you posssbly can, and deduct the same from the amount of next bill."

After the first order, none were in form countersigned b}- defendant.
Some orders, however, were sent b}- the defendant himself, and many
letters of defendant are in evidence, from which it might be inferred
that the defendant liad a personal interest in the business. For
instance, on the 25th September, 1886, he sends an order for certain
specified goods, and adds, " We will soon give you larger orders,"
The goods, however, were mainly ordered by " Thilip Michel, Agent,"
and all were shipped and charged in that form. The dealings were
quite large, comprising hundreds of orders, aggregating about ^35,000,
and continued to June 9, 1891. All of the goods so ordered and
shipped, down to October 2, 1890, were paid for, from time to time, by
the individual checks of the defendant on the German-American Bank
of New York, inclosed in letters written bj- him to the plaintiffs. The
orders since October 2, 1890, are the items involved in this suit. All
the goods sent b\' the plaintiflfs were used at the factory in Stapleton,
and all the proceeds of their sale after being manufactured, excepting
a small amount, were turned over to, and received bv, the defendant,
and were deposited b^- him, with other moneys belonging to him, in his
bank account with the German-American Bank. It is shown on the
part of the defendant that Michel was in fact the agent of his wife, and
employed the defendant as his book-keeper and cashier, and that
defendant kept an account of the moneys received, and checked them
out as directed b\' Michel. All this, however, was unknown to plain-
tiflfs. Defendant was in a position to know of all the orders sent, and
no objection was made by him that the}' were not countersigned by
him, or that Michel did not have authority- to bind him.

These are the main features of the case. It seems to me ver\' clear
that the evidence warranted the conclusion that the limitation or con-
dition in the writing of April 29, 1886, that the orders should be coun-
tersigned by the defendant, was waived b}' the defendant, or at least
that the plaintiflfs had a right to believe that it was not required by
defendant. In his letter of June 21, 1886, he excused the want of it,
and treated it as a favor that the plaintiffs sent the goods without it ;
and for four years and upwards, thereafter, he paid the bills without
question, and without any suggestion that the countersigning was im-
portant. If the limitation was waived, that left the declaration of
defendant general, — that he would be responsible for all orders sent to
plaintifl["s bj- Michel as agent. This responsibility was, in eflfect,
acknowledged by the defendant, so far as the plaintiflfs were concerned,
from June, 1886, to October, 1890. The plaintiflfs were informed of

50 PAGE V. METHFESSEL. [CHAP. I.

no other person as principal. The defendant himself gave orders, and
indicated a personal interest in the business. The authority given by
the paper of April 29, 1886, was never revoked. The plaintiffs had a
right to assume that the authority continued after October, 1890, as it
had existed before. Bodine v. Killeen, 53 N. Y. 93.

It is suggested that the credit was not given to defendant, because
the goods were charged to ]\Iichel as agent. That form of charge indi-
cated that credit was not given to Michel individually, and there was
no other known to plaintiffs, to whom credit would be given, except
the defendant. The plaintiffs' agent, before the commencement of tlie
negotiation in April, 1886, was informed that Michel was insolvent,
and it is easy to infer that no one intended or expected that credit
would be given to him. It is also suggested that the plaintiffs did not
testify that they relied on defendant. In such a case, it is said in
Brown v. Bowen, 30 N. Y. 520, that, in the absence of proof of the
effect of the admission on tlic party setting up the estoppel, it is for the
jury to say whether, on the facts, the several essential parts of the estop-
pel are proved. In the present case it was a question of fact whether
the defendant, by his acts and conduct, held out Michel to the plaintiffs
as his agent, and whether, from such acts and conduct, the plaintiffs
were led to believe, and did believe, that the defendant was the prin-
cipal, and relied on this in selling the goods in suit. The conclusion of
the referee on this subject should not, I think, under the circumstances
of this case, be disturbed.

But it is said that the plaintiffs were guilty of laches in allowing the
bills in suit to accumulate. Still, the defendant, by reason of his posi-
tion in the business, presumptively knew all about the orders that were
being sent to plaintiffs, and knew that the bills in suit were not paid.
He was bookkeeper, and had charge of the finances, and the proceeds
of all the goods sent by the plaintiffs, including those in suit, were
turned over to him. He made no suggestion to the plaintiffs that he
did not propose to pay any more, or proposed to change the current of
the business. A large portion of the goods in suit were ordered before
the payments on the prior account were completed. We fail to see any
defence on the ground of laches.

After the evidence before the referee was closed, and before the
decision of the case, a motion, upon affidavits and notice to plaintiffs,
was made, before the referee, to correct the minutes of the referee of
the testimony of the defendant as to his answer to a particular ques-
tion, or that the trial be opened. AflSdavits were used by plaintiffs in
opposition to the motion, and there was a conflict as to what the testi-
mony in fact was. The motion to correct the minutes was denied, but,
on motion of the counsel for defendant, leave was given to defendant
to recall the witness upon certain terms as to the costs of the motion,
and the further attendance before the referee, and the expenses of
rebutting testimony. Nothing was further done, the terms, apparently,
not being satisfactory. Whether the minutes were correct was for the

SECT, v.] PAGE V. METHFESSEL. 51

referee to determine, and his decision on that is conclusive. Tweed v.
Davis, 1 Hun. 252. The terms for opening the case were within liis
discretion, and no sufficient reason appears for this court to say that
such discretion was abused.

Hardix, p. J., and Parker, J., concurred.

Judgment and order affirmed with costn}

* " But the rule of law is clear, that, where one by his words or conduct wilfully
causes another to helieve the existence of a certain state of things, and induces liiin
to act on that belief, so as to alter his own previous position, the former is concluded
from averring against the latter a different state of things as existing at the same
time." Pickard v. Sears, 6 Ad. & E. 469, 474 (1837), per Lord Denman, C. J.

" By the term ' wll/ulli/,' however, in that rule, we must understand, if not that
the party represents that to be true which he knows to be untrue, at least tliat he
means his representation to be acted upon, and that it is acted upon accordingly ;
and if, whatever a man's real intention may be, he so conducts himself that a reason-
able man would take the representation to be true, and believe that it was meant that
he should act upon it, and did act upon it as true, the party making the representa-
tion would be equally precluded from contesting its truth ; and conduct, by
negligence or omission, where there is a duty cast upon a person, by usage of trade
or otherwise, to disclose the truth, may often have the same effect." Freeman v.
Cooke, 2 Exch. 654, 663 (1848), per Pakke, B.

" The agency may be constituted by an express limited authority to make such a
contract, or a larger authority to make all falling within the class or description to
which it belongs, or a general authority t(j make any ; or it may be proved by showing
that such a relation existed between the parties as by law would create the authority ;
as for instance, that of partners, by which relation, when complete, one becomes
by law the agent of the other for all purposes uecessarj' for carrying on their particular
partnership, whether general or special, or usually belonging to it; or the relation
of husband and wife, in which the law, under certain circumstances, considers the hus-
band to make his wife an agent. In all these cases, if the agent, in making the
contract, acts on that authority, the principal is bound by the contract, and the
agent's contract is his contract, but not otherwise. This agency may be created by
the immediate act of the party, that is, by really giving the authority to the agent, or
representing to him that he is to have it, or by constituting that relation to which
the law attaches agency ; or it may be created by the representation of the defendant
to the plaintiff, that the party making the contract is the agent of the defendant, or
that such relation exists as to constitute him such ; and if the plaintiff really makes
the contract on the faith of the defendant's representation, the defendant is bound ;
he is estopped from disputing the truth of it with respect to that contract; and the
representation of an authority is, quoad hoc, precisely the same as a real authority
given by the defendant to the supposed agent. This representation may be made
directly to the plaintiff, or made publicly so that it may be inferred to have reached
him, and may be made by words or conduct. Upon none of these propositions is
there, we apprehend, the slightest doubt ; and the proper decision of all these
questions depends upon the proper application of these principles to the facts of each
case, and the jury are to apply the rule with due assistance from the judge." Per
Pollock, C. B., in Reynell v. Lewis, 15 M. & W. 517, 527-528 (1846).

" First, then, as to the constitution by the principal of another to act as his agent.
No one can become the agent of another person except by the will of that other person.
His will may be manifested in writing or orally, or simply by placing another in a
situation in which, according to ordinary rules of law, or perhaps it would be more
correct to say, according to the ordinary usages of mankind, that other is understood
to represent and act for the person who has so placed him ; but in every case it is
only by the will of the employer that an agency can be created.

"This proposition, however, is not at variance with the doctrine that where one

52 STATUTE OF FRAUDS. [CHAP. L

SECTION V. (continued).

(5) Appointment to execute an Instrument within the Statute

OF Frauds. ^

The Statute of Frauds, 29 Car. II. c. 3, §§ 1-5, 17 (1676-7) : — »

Sect. 1. . . . All leases, estates, interests of freehold, or terms of
years, or an}- uncertain interest of, in, to or out of any messuages,
manors, lands, tenements or hereditaments, made or created by livery
and seisin only, or by parol, and not put in writing, and signed by the
parties so making or creating the same, or their agents thereunto law-
fully authorized b}' writing, shall have the force and effect of leases or
estates at will onlj', and shall not either in law or equity be deemed or
taken to have any other or greater force or effect ; an}' consideration
for making any such parol leases or estates, or any former law or
usage, to the contrary notwithstanding.

Sect. 2. Except nevertheless all leases not exceeding the term of
three j^ears from the making thereof, whereupon the rent reserved to
the landlord, during such term, shall amount unto two third parts at
the least of the full improved value of the thing demised.

has so acted as from his conduct to lead another to believe that he has appointed
Some one to act as his agent, and knows that that other person is about to act on
that behalf, then, unless he interposes, he will, in general, be estopped from disputing
the agency, though in fact no agency really existed. It is, however, necessary to
bear in mind the difference between this agency by estoppel, if I may so designate
it, and a real agency, however constituted.

" Another principle to be kept constantly in view is, that the burden of proof is on
the person dealing with any one as an agent, through whom he seeks to charge
another as principal. He must show that the agency did exist, and that the agent had
the authority he assumed to exercise, or otherwise that the principal is estopped from
disputing it.

" Unless this principle is strictly acted on, great injustice may be the consequence ;
for any one dealing with a person assuming to act as agent for another can always
save himself from loss or difficulty by applying to the alleged principal to learn
whether the agency does exist, and to wliat extent. The alleged principal has no
similar mode of protecting his interest ; he may be ignorant of the fact that any one
is assuming to act for him, or that persons are proposing to deal with another under
the notion that that other is his agent. It is, therefore, important to recollect con-
stantly where the burden of proof lies." Per Lord Cranworth, dissenting, in Pole
y.Leask, 33 L. J. n. s. Ch. 155, 161-162 (House of Lords, 1863).

Similar to the principal case are Fanning v. Cobb, 20 Mo. App. 577 (1886); and
Mook V. Parker, 9 N. Y. Misc. 90 (1894), s. c. 29 N. Y. Supp. 32. — Ed.

1 " All contracts are by the laws of England distinguished into agreements by spe-
cialty, and agreements by parol ; nor is there any such third class, as some of the
counsel have endeavored to maintain, as contracts in writing. If they be merely
written and not specialties, they are parol, and a consideration must be proved." Per
Sktnner, C. B., delivering the opinion of the judges, in Rann v. Hughes, 7 T. R. 346,
n. (a) (House of Lords, 1778).— P>d.

2 1 Statutes Revised, 774; 8 Statutes of the Realm, Pickering's edition, 405. The
text follows the spelling, punctuation, and numbering of Pickering's edition. — Ed.

8KCT. v.] EMMERSON V. HEELIS. 53

Sect. 3. . . . No leases, estates or interests, either of freehold, or
terms of 3'ears, or any uncertain interest, not being copyhold or cus-
tomary interest, of, in, to or out of any messuages, manors, lands,
tenements or hereditaments, shall ... be assigned, granted or sur-
rendered, unless it be b}' deed or note in writing, signed by the party so
assigning, granting or surrendering the same, or their agents thereunto
lawfully authorized by writing, or by act and operation of law.

Sect. 4. . . . No action shall be brought whereb}- to charge any
executor or administrator upon an}' special promise, to answer dam-
ages out of his own estate ; (2) or wherebj' to charge the defendant
upon any special promise to answer for the debt, default or miscar-
riages of another person ; (3) or to charge any person upon any
agreement made upon consideration of marriage ; (4) or upon any
contract or sale of lands, tenements or hereditaments, or an}' interest
in or concerning them ; (5) or upon an}' agreement that is not to be
performed within the space of one year from the making thereof; (6)
unless the agreement upon which such action shall be biought, or some
memorandum or note thereof, shall be in writing, and signed by the
party to be charged therewith, or some other person thereunto by him
lawfully authorized.

Sect. 5. . . . All devises and bequests of any lands or tenements,
devisable either by force of the statute of wills, or by this statute, or
by force of the custom of Kent, or the custom of any borough, or any
other particular custom, shall be in writing, and signed by tlie i)arty so
devising the same, or by some other person in his presence and by his
express directions, and shall be attested and subscribed in the presence
of the said devisor by three or four credible witnesses, or else they
shall be utterly void and of none effect.

Sect. 17. . . . No contract for the sale of any goods, wares and
merchandizes, for the price of ten pounds sterling or upwards, shall be
allowed to be good, except the buyer shall accept part of the goods so
sold, and actually receive the same, or give something in earnest to
bind the bargain, or in part of payment, or that some note or memo-
randum in writing of the said bargain be made and signed by the
parties to be charged by such contract, or their agents thereunto law-
fully authorized.

EMMERSON v. HEELIS.
Common Pleas. 1809.

[2 Taunton, 38.]

This was an action of assumpsit for not carrying off from the
plaintiff's land certain lots, to wit, 27 different lots of turnips, alleged
to have been bought by the defendant of the plaintiff, and for not

54 EMMERSON V. HEELIS. [CHAP. L

bringing back and laying upon the land a certain quantit}' of manure ;
the declaration also contained a count for turnips bargained and
sold, and the common money-counts. The defendant pleaded the
general issue. Upon the trial at the Westmoreland Spring assizes,
1808, a verdict was taken for the plaintiff for the amount of damages
stated in the declaration, subject to a reference as to the amount of
the plaintiff's demand, for which sura only a verdict was to be entered,
and also as to tlie fact whether one Moss, who attended at an auction
on behalf of the defendant, and there purchased the turnips for him,
had been duly authorized by the defendant to act as his agent on that
occasion. Upon both these points the arbitrator afterwards duly made
his award, thereby fixing the amount of the plaintiff's damages at £46
6s., and declaring that Moss, a servant in husbandr}', retained and
omplojed b}' the defendant, was dul}' authorized b}' the defendant to
attend as his agent at the sale. The verdict was also made subject to
the opinion of the Court of Common Pleas upon the following case.

The plaintiff put up to sale b}- public auction, on the 25th of Sep-
tember, 1806, a crop of turnips, then growing upon his land, in separate
lots, and under certain conditions of sale. The defendant, by his agent
Anthon_y Moss, his farming servant, attended at the sale, and being
the highest bidder for 27 different lots, containing in the whole 108
stiches or furrows, was declared to be the purchaser thereof ; and the
name of each purchaser, and amongst others, of the defendant was
written in the third column of the sale bill b\' the auctioneer, opposite
to each particular lot for which the other purchasers and the defendant
were respectively declared the highest bidders, in the order in which
tlie same were respectively knocked down. The defendant was not
present at the auction ; neitlier did he, or Moss, sign any agreement
in writing, nor did the auctioneer, otherwise than as is before stated,
b}- putting down the names of the different purchasers, amongst whom
was Moss for the defendant. The lots were not purchased by the
defendant's agent in succession, but other purchasers purchased several
intermediate lots. No single lot was knocked down to the defendant
at a larger sum than £1 lis., although the amount of the 27 lots was
£39 Is. The following was the form of the bill of sale prepared by the
auctioneer, and by which the turnips were sold. It was divided into
five columns.

A bill of sale of turnips, by stiches, the property of George Emmer-
son, at Kirb}-, in the parish of Bongate, in the count}' of West-
moreland, that were sold the 25th of September, 1806, by John
Wright, auctioneer. Time for payment till the 1st day of January,
1807, on giving satisfactory security before they depart the sale,
or when demanded. Everv four stiches one cart load of manure.

No. of Stiches.

No. of Lots.

Purchasers' Names.

Articles sold.

Price.

Edw. Heelis.

Lot 1.

£1 7s

SECT, v.] EMMERSON V. HEELIS. 65

The bill of sale was proposed at the trial, as evidence of the
contracts of sale of the 27 lots, but it was not proved ; there was
no stump on it, but it did not in any manner appear that there was an}^
fraud or intention to elude the stamp act in setting down eacli lot
separately. The question for the opinion of the court was, whether
the verdict should stand, or a nonsuit be entered.

Lens, Serjt., for the plaintiff.

Shejiherd, .Serjt., contra.

Lens, in reply. Cur. adv. vult.

On a following day in the same term, the court observed that the
statute of frauds did not require that the agent for the buyer should be
authorized bv writing ; and in the case of Coles v. Trecothick, and
numerous other equity cases, a written authority had been held
unnecessary, although the contrary had been once ruled ; if the defend-
ant had subscribed his own name in the third column opposite to each
lot as it was knocked down to him, no doubt the contract would have
been good; or if he had expressly said to the auctioneer, " Put down
my name."

Mansfield, C. J., in this term delivered the opinion of the court.
He observed, that some curious points had been agitated in this case,
and recapitulated the facts. The questions are, whether the contract
should be in writing, as being for a sale of goods amounting to £10.
There is no ground for that objection, for the contract for each stich
was a separate sale ; for the same reason no stamp is necessar}',
because no one lot was worth £20. The third question is, whether it
was an interest in land, and if so, whether a signing b}- the auctioneer
is a signing by an agent for the purchaser ; this depends on the 4th
section of the statute, for this is an agreement to purchase. The words
of the statute are, " that no action shall be brought to charge any
person upo7i any contract or sale of lands, tenements, or hereditaments,
or any interest in or concerning them," unless the agreement, or
some note or memorandum thereof, shall be in writing, and signed b}'
the partv to be charged therewith, or some other person thereunto
bj' him lawfull}' authorized. Now as to this being an interest in land,
we do not see how it can be distinguisljed from the case of hops
decided in this court ; and if the auctioneer is an agent for the pur-
chaser, then the statute of frauds is satisfied, because the memorandum
in writing is signed by an agent for the part^' to be charged. Now
this memorandum is more particular than most memorandums of sale
are ; and upon it the auctioneer writes down the purchaser's name.
Bj- what authority does he write down the purchaser's name? By the
authority of the purchaser. These persons bid, and announce their
biddings, loudl}" and particularlv enough to be heard by the auctioneer.
For what purpose do thej' do this? That he may write down their
names opposite to the lots ; therefore he writes the name bv the
authority of the purchaser, and he is an agent for the purchaser ; and

56 JOHNSON V. DODGE. [CHAP. I.

it does seem, therefore, that this is a contract signed by an agent for
the purchaser, and consequently is binding ; and judgment must be
entered for the plaintiff.^

JOHNSON V. DODGE.
Supreme Court of Illinois. 1856.

[17 ///. 433.]

Error to Cook Count}- Court of Common Pleas. ^

The bill was dismissed by Wilson, Judge, at Januarj' term of the
Common Pleas Court, and thereupon the complainant brought this writ
of error.

B. /S. Jlori-is, and Waller & Caidjield, for plaintiff in error.

I. JV. Arnold, and H. G. Miller, for defendant in error.

Skinner, J. This was a bill in equity, for specific performance of a
contract for the sale of land.

The bill and proofs show that one Iglehart, a general land agent,
executed a contract in writing in the name of Dodge, the respondent,
for the sale of certain land belonging to Dodge, to one Walters, and
received a portion of the purchase mone^' ; that Walters afterwards
assigned the contract to Johnson, the complainant ; a tender of per-
formance on the part of Walters, and on the part of Johnson, and a
refusal of Dodge to perform the contract. The answer of Dodge, not
under oath, denies the contract, and sets up the statute of frauds as a
defence to any contract to be proved. The evidence, to our minds,
establishes a parol authorit}' from Dodge to Iglehart to sell the land,
substantially according to the terms of the writing. It is urged against
the relief prayed, that Iglehart, upon a parol authority to sell, could
not make for Dodge a binding contract of sale, under the statute of
frauds ; that the proofs do not show an authority to Iglehart to sign
the name of Dodge to the contract, and therefore that the writing is
not the contract of Dodge ; that the writing not being signed by the
vendee is void for want of iputuality ; that no sufficient tender of per-
formance on the part of complainant is proved, and that the proof
shows that the authorit}' conferred was not pursued b}* the agent.
Equity will not decree specific performance of a contract founded in
fraud, but where the contract is for the sale of land, and the proof
shows a fair transaction, and the case alleged is clearly established, it
will decree such performance.

In this case, the contract, if Iglehart had authority to make it, is the
contract of Dodge and in writing ; and it is the settled construction of

1 See Mews v. Carr, 1 H. & N. 484 (1856); Horton v. McCarty, 53 Me 394
(1866). — Ed.

* The reporter's statement of the case is omitted. — Ed.

SECT, v.] JOHNSON V. DODGE 57

the statute of frauds, that the authority to the agent need not be in
writing ; and by this construction we feel bound. 1 Parsons on Con.
42, and cases cited; Doty v. Wilder, 15 111. 407; 2 Parsons on Con.
292, 293, and cases cited; Saunders' PI. and Ev. 541, 542, and 551 ;
Story on Agency, 50 ; 2 Kent's Com. 614. Authority from Dodge to
Igleliart to sell the land included the necessary- and usual means to
make a binding contract in the name of the principal. If the authority
to sell may be created by parol, from this authority may be implied
the power to use the ordinary and usual meaijs of effecting a valid sale ;
and to make such sale it was necessary to make a writing evidencing
the same. If a party is present at the execution of a contract or deed,
to bind him as a part}' to it, when his signature is affixed b^- another,
it is necessary that the person so signing for him should have direct
authority- to do the particular thing, and then the signing is deemed his
personal act. Story on Agency, 51. In such case the part}- acts
without the intervention of an agent, and uses tlie third person only as
an instrument to perform the mere act of signing. This is not such a
case. The agent was authorized to negotiate and conclude the sale,
and for that purpose authority was implied to do for his principal
what would have been incuml)ent on the principal to do to accomplish
the same thing in person. Hawkins /'. Chance, 19 Pick. 502; 2 Par-
sons on Con. 291 ; Stor}' on Agenc}', Chap. 6 ; Hunt v. Gregg, 8
Blackf. 105 ; Lawrence v. Taylor, 5 Hill, 107; 15 111. 411 ; Vanada v.
Hopkins, 1 J. J. Marsh. 283 ; Kirby v. Grigsby, 9 Leigh, 387.

The mode here adopted was to sign the name of Dodge " by" Igle-
hart, "his agent,*' and it is the usual and proper mode in carrying out
an authority to contract conferred on an agent. But if the signing the
name of the principal was not authorized by the authority to sell, 3'et
the signature of the agent is a sufficient signing under the statute.
The language of the statute is, " signed by the party to be charged
therewith, or some other person thereto b}- him lawfully authorized."
If Iglehart had authorit}' to sign Dodge's name, then the contract is
to be treated as signed b}- Dodge ; and if Iglehart had authority to
sell, in anj- view his signature to the contract is a signing b}- "some
other person thereto by him lawfulh' authorized," within the statute.
Truman v. Loder, 11 Ad. and El. 589 ; 2 Parsons on Con. 291. It is
true that author! t}' to convey must be in writing and by deed ; for land
can onl}- be conveyed by deed, and the power must be of as high dig-
nity as the act to be performed under it. It was not necessary- to the
obligation of the contract that it should have been signed bj- the vendee.
His acceptance and possession of the contract, and payment of money
under it, are unequivocal evidences of his concurrence, and constitute
him a party as fully and irrevocably as his signing the contract could.
2 Parsons on Con. 290; McCrea v. Purmort, 16 Wend. 160; Shirly
V. Shirly, 7 Blackford, 452.

We cannot question the sufEcienc}' of the tender in equit}', to entitle
the complainant to specific performance. Webster et al. v. French et

58 HIBBLE WHITE V. M'MORINE. [CHAP. I.

al., 11 111. 278. Nor do we find any substantial departure in the con«
tract from the authority proved. While we hold that the authority to
the agent who for his principal contracts for the sale of land, need not
be in writing, yet we should feel bound to refuse a specific performance
of a contract made with an agent upon parol authority, without full
and satisfactory' proof of the authority, or where it should seem at all
doubtful whether the authority was not assumed and the transaction
fraudulent.

Decree reversed and cause remanded. Decree reversed.

SECTION- V. (continued).
(C) Appoixtment to execute a Specialty.

HIBBLEWHITE v. McMORINE.
Exchequer. 1840.

[6 M. .j- W. 200.]

The judgment of the court ^ was delivered bj-

Parke, B. In this case, which was argued last term, upon show-
ing cause against a rule for a new trial, we are of opinion that the rule
must be made absolute.

It was an action brought by the plaintiff to recover damages for
not accepting and paying for fifty shares in the Brighton railroad ;
which, by the contract, were to be transferred, delivered, and paid for
on or before the 1st of March, 1839, or at an}' intermediate date that
the defendant might require them, b}' paying for them at par, together
with all calls that might have been paid on the same, the plaintiff bind-
ing himself to execute to the defendant, or his nominee, a legal transfer
of the shares, on or before the 1st of March.

Tlie declaration avers that on the 1st of March the plaintiff was
ready and willing to transfer the shares, if the defendant would have
paid for the same ; and offered to the defendant, or an^' nominee of
the defendant, a legal transfer. This averment was traversed in one
plea, and in another it was pleaded that at the time of the agreement,
or on the 1st March, or between those times, the plaintiff was not
the proprietor of the shares, nor had he good right or title to execute
a legal transfer of such shares, according to the agreement.

The replication states that on the 1st March, the plaintiff was the
proprietor of the shares, and then had good right and title to execute
a legal transfer thereof.

1 The opinion states the case. The reporter's statement is omitted. — Ed.

SECT, v.] HIBBLEWHITE V. m'.MORINE. 59

The question for consideration arises on those two pleas. Upon one
or both, the title of the plaintiff to make the transfer ma}' be ques-
tioned. It is not material upon which ; but there seems no doubt but
that it arises on tlie traverse of the readiness to convey, which must
involve a capacity to do so, as there is no other averment in tlie dec-
laration which expresses or implies that the plaintiff had a title to
convey on the 1st of March. It appears on the trial that between the
date of tiie agreement and the 1st of March, some instalments became
due, which the pluiutifT did not pay; and on the 1st of March (before
which day the defendant had not desired any transfer) the plaintiff's
broker, who had purciiased fifty shares from one Pritchard, produced
to the defendant a conveyance executed b}' Pritchard, of these shares,
with a blank for the name of the transferee, and offered to fill it up
with that of the defendant or his nominee, on tlie defendant's paying
tlie price. The defendant refused to do so. The plaintiff sold the
shares, and the action was brought for the difference.

The objections to tlie plaintiti's recovering were, 1st, that he was
incapable of conveying on the 1st of March, because Pritchard was
then the owner, and not the plaintiff ; 2ndly, that the conveyance was
invalid by the express provisions of the Brigliton Railway Act, 1 Vict.
c. cxix. sect. 157, as the calls due before that date were not paid ; and
Srdl}', that the conveyance tendered was void at common law, as there
was a blank in it for the name of the transferee.

It is unnecessary for us to give any opinion, except upon the last
of these objections; but it may not be improper to observe that there
is great weight in the first, because tlie defendant has bargained for a
conve3ance from the plahitiff, which must be intended to be a convey-
ance in the statutory form ; and, consequently, for the implied covenant
of the lilaintiff for title, and Pritchard's implied covenant is not the
same thing. The last objection, however, we are all of opinion, must
prevail.

The second objection, which would otherwise have been valid, has
been waived, as it appears on the evidence at the trial that the defend-
ant agreed that the plaintiff should not pay the intermediate instal-
ments ; and, as the contract with respect to shares of this description
is not required by the Statute of Frauds to be in writing, since the}' are
neither an interest in land, nor goods and merchandises, there might
be a waiver by parol. As there was such a waiver, the only objection
would be to the statement of the contract in the declaration, on the
ground of variance, which ought to have been made at tlie trial.

The conve^'ance required by the statute must, we think, be by deed ;
and a deed, with the name of the vendee in blank at the time it was
sealed and delivered is void.

The instrument of transfer, by the 15.5th section, must be under the
hands and seals of both parties. It was argued that it did not follow,
from the instrument being under seal, that it was a deed ; for warrants
of justices, subpoenas, and awards, are under seal, and are not deeds.

60 HIBBLEWHITE V. M'MORINE. [CHAP. 1

But this is an instrument containing a contract of the parties ; if a
contract is required to be by instrument under seal, it must be intended
that it should be bij deed: and the context shows that the legislature
so intended it, for it is afterwards called a deed or conveyance
(probably a synonyme for the same thing), and a deed of sale or trans-
fer, that is, a deed of sale or of transfer.

Assuming, then, the instrument to be a deed, it was wholl}' improper,
if the name of the vendee was left out; and to allow it to be afterwards
filled up by an agent appointed by parol, and then delivered in the
absence of the principal, as a deed, would be a violation of the
principle that an attorne}- to execute and deliver a deed for another
must himself be appointed by deed. The only case cited in favor of
the validity of a deed in blank, afterwards filled in, is that of Texira
V. Evans, cit. 1 Anst. 228, where Lord Mansfield held that a bond
was valid which was given with the name of the obligee and sum in
blank to a broker to obtain mone}' upon it, and he borrowed a sum
from the plaintiff', and then inserted his name and the sum. But this
case is justly questioned by Mr. Preston, in his edition of Shepp.
Touch. 68, " as it assumes there could be an attorne}- without deed ; "
and we think it cannot be considered to be law. On the other hand,
there are several authorities that an instrument which has a blank in
it, which prevents it from having an}- operation when it is sealed and
delivered, cannot become a valid deed b}' being afterwards filled up.

In Com. Dig. Fait, A. 1, it is said, "If a deed be signed and
sealed, and afterwards written, it is no deed." .To the same effect is
She[)p. Touch. 54. In Weeks v. Maillardet, 14 East, 568, the instrument
had nothing to operate upon, as it referred to a schedule as annexed,
which was not annexed at the time of execution ; and it was held that
the subsequent annexation, in the absence of one of the parties, did not
give it operation as part of the deed. So, where a bail bond was
executed, and a condition afterwards inserted, it was held bad as a
bail bond. Powell v. Duff, 3 Camp. 181 ; and see Bull. N. P. 267.
The cases cited on the other side were all of them distinguishable.
In one, Hudson v. Revett, 5 Bing. 372, a blank in a part material was
filled up ; but, having been done in the presence of the party, and
ratified by him, it was held that there was evidence of re-delivery.
In another. Doe v. Bingham, 4 B. & Aid. 672, the blanks filled up were
in no respect material to the operation of the deed, with respect to the
party who executed before they were filled up, — as to him the deed
was complete. In a third, Matson v. Booth, 5 M. & Sel. 233, the
point decided was that a complete bond was not rendered void by the
subsequent addition of another obligor with the assent of all parties.

It is unnecessary to go through the others which were cited on the
argument. It is enough to say that there is none that shows that an
instrument which when executed is incapable of having any opera-
tion, and is no deed, can afterwards become a deed by being com-
pleted and delivered bj' a stranger in the absence of the party who
executed, and unauthorized by instrument under seal.

SECT, v.] GARDNER V. GARDNER. 61

In truth, this is an attempt to make a deed transferable and negoti-
able like a bill of exchange or exchequer bill, which the law does not
permit. Mule absolute.^

GARDNER v. GARDNER.
Supreme Judicial Coukt of Massachusetts. 1850.

(5 CusL 483.]

This was a writ of entry to foreclose a mortgage of land in Nan-
tucket, tried before Fletcher, J., in this court.

The demandant claimed as the assignee of Barker Burnell, whose
title was derived from a deed purporting to be executed by Poll}' Gwinn
and by the tenant.

The conditional judgment was entered for the demandant, subject to
the opinion of the court upon the question, whether the last-mentioned
deed was properly executed. The subscribing witness thereto testified
that, at the request of the tenant, he went to the house of Polly Gwinn,
and there saw all the parties sign the deed. When it was time foi
Polly Gwinn to sign, her daughter, Mary G. Gardner, offered to sign
for her mother, who assented by a nod of the head, and the daughto
then and there signed her mother's name thus: "Polly Gwinn by
Mary G. Gardner," in the presence of her mother, and of the witnesSj
who saw all the signatures made.

The case was argued in writing by C bunker, for the demandant,
and T. G. Coffin^ for the tenant.

Shaw, C. J. The only question is upon the sufficiency of the exe.
cution of a mortgage deed, as a good and valid deed of Polly Gwinn.
The execution of the deed is objected to on the ground that when a
deed is executed b}' an agent or attorney' the authority to do so must
be an authority of as high a nature, derived from an instrument under
the seal of the grantor. This is a good rule of law, but it does not
apply to the present case. The name being written by another hand,
in the presence of the grantor, and at her request, is her act. The
disposing capacity, the act of mind, which are the essential and effi-
cient ingredients of the deed, are hers, and she merely uses the hand
of another, through incapacity or weakness, instead of her own, to do
the physical act of making a written sign. Whereas, in executing a
deed by attorney, the disposing power, though delegated, is with the

1 Ace: Williams v. Crntcher, 6 Miss. 71 (1840) ; Graham v. Holt, 3 Iredell's Law,
300 fl84.3) ; Preston v. Hull, 23 Gratt. 600 (1873).

According to Blood v. Goodrich, 12 Wend. 525 (1834), an admission that an agent
had authority to execute a certain specialty is prima facie, evidence of an authonty
under seal. Paine v. Tucker, 21 Me. 138 (1842), is contra. See Tapper v. Foulkes, 9
C. B. N. 8. 797 (1861). — Ed.

62 BLACKNALL V. PARISH. [CHAP. L

attorney, and the deed takes effect from bis act ; and therefore the
power is to be strictly examined and construed, and the instrument
conferring it is to be proved b}- evidence of as high a nature as the
deed itself. To hold otherwise would be to decide that a person hav-
ing a clear mind and full capacit3', but through physical inability inca-
pable of making a mark, could never make a convej-ance or execute a
deed ; for the same incapacity to sign and seal the principal deed
would prevent him from executing a letter of attorney under seal.

It appears to us that the distinction between writing one's name in
his presence and at his request, and executing a deed b}' attorney, is
obvious, well founded, stands on satisfactory reasons, and is well sus-
tained by authorities. Ball t'. Dunsterville, 4 T. R. 313 ; The King v.
Longnor, 1 Nev. & M. 576 ; s. c. 4 B. & Ad. 647 ; 2 Gr. Ev. § 295.
We think the deed was well executed by Polly Gwinn ; and judgment
must therefore stand for the demandant.^

BLACKNALL v. PARISH.
Supreme Court of North Carolina. 1860.

[6 Jones' Eq. 70.]

Cattse removed from the Court of Equit}' of Orange Count}'.

This was a bill filed for the specific performance of a contract, by
which the defendant bound himself to conve}* the plaintiff a tract of
land, described by its metes and bounds, and lying in Orange county.
The allegations in the bill (which are sustained by the evidence filed)
are, that the defendant, being about to remove from the count}- of
Orange, where he lived, to the western part of the State, authorized
one Harrison Parker to sell for him the land in question, and to enable
him to do so, he prepared a deed, describing the premises, and pur-
porting to convey the same in fee, but leaving therein blanks as to the
name of the bargainee and the price, with instructions, when he might
make sale of the land, to fill up the blanks in the deed, and deliver it
to the purchaser ; that afterwards Parker made a sale to the plaintiff,
at a reasonable price, and accordingly filled up the deed in the requisite
particulars, with the name of the plaintiff and with the price ; both
supposing the instrument was thus made good as a deed ; that Black-
nail gave his bond for the money to the defendant's agent, who used
the same in the purchase of a slave for the defendant, and it was sub-
sequently paid to defendant's assignee.

1 See Hudson v. Revett, 5 Bing. 368 (1829); Vandruff r. Rinehart, 29 Pa. 232
(1857) ; Mutual Benefit Life Ins. Co, v. Brown, 30 N. J. Eq. 193 (1878). See also the
discussion in Wallace v. McCullough, 1 Rich. Eq. 426, 438-439 (1845), and Inhabi-
tants of South Berwick v. Huntress, 53 Me. 89, 95-96 (1865). — Ed.

SECT, v.] BLAGKNALL V. PARISH. 63

The prayer of the bill is for a specific performance of the contract,
evidenced by the imperfect deed, and to stay, by an injunction, the
proceedings of an action of ejectment, which the defendant had brought
against the plaintiff, and which was then pending in the Superior Court
of Orange County.

The defendant answered, denying the authority of Parker to sell to
Blacknall, and alleging that he had special objections to plaintiffs
having the land, which are stated ; and that the deed in question was
prepared for the purpose of consummating a sale to one Hopkins, with
whom he was in treaty when he left the county, and that his agent had
no authority to deliver it to an}' one else. He relied on the Statute of
Frauds as a bar to the plaintiffs equity.

On the coming in of the answers, the injunction, which had issued ia
vacation, was dissolved, and the bill continued over as an original bill.
Proofs were taken, which sustained the plaintiffs allegations and dis-
proved those of the defendant. The cause, being set for hearing, was
transmitted to this court by consent

Norwood, for the plaintiff.

Graham^ for the defendant.

Battle, J. Upon examination of the testimony' taken in this cause,
we are entirely satisfied that the land mentioned in the pleadings was
contracted to be sold to the plaintiff bj' an authorized agent of the
defendant; that the authorit}' under which the agent acted was b}'
parol, and that the contract was entered into by the agent's filling up
certain blanks in an instrument, which the defendant had signed and
sealed, and left with the agent to be b\- him made complete b}' filling
up such blanks and delivering it as the deed of the defendant to the
person who should become the purchaser. We are further satisfied
that what was intended to be a sale was made fairly, and for a price
which, at the time, was not inadequate, and further, that the price was
subsequentlv received by the defendant.

It has been properl}- admitted b}- the plaintiff that the instrument
which was delivered to him b\' the agent of the defendant as a deed for
the land in question could not operate as such, because it was not com-
plete when it was signed and sealed b}- the defendant. In the case of
Davenport w. Sleight, 2 Dev. & B. L. 381, and again in Graham v.
Holt, 3 Ired. L. 300, it was held that an instrument signed and sealed
in blank, and handed to an agent onl}' verballv authorized to fill up the
blank and deliver it, was not the bond of the principal, and that after
declarations of the principal approving of the deliver}- bj' the agent,
made in the absence of the instrument, and without an}' act in relation
to it, would not amount to an adoption and ratification of the delivery.

The case before us is one of a deed for land, instead of a bond for
the payment of money, but the principle is the same. The instrument
must be complete before it can be delivered by an agent, acting under
a mere parol authority, as the act and deed of his principal.

The plaintiff, not being able to set up a legal title under the instru-

64 BLACKNALL V. PARISH. [CHAP. I.

ment in question, insists, nevertheless, that it is evidence of a contract,
the specific performance of which he has a right to have enforced in a
court of equit}'. The defendant objects to this, and relies, in support
of his objection, upon the statute of frauds, which declares ''that all
contracts to sell or convey any lands, etc., shall be void and of no
effect unless such contract, etc., or some memorandum or note thereof,
shall be put in writing, signed by the party to be charged therewith, or
by some other person b}- him thereunto lawfully' authorized," etc. Rev.
Code, c. 50, sec. 11. The question, then, is: 1. Whether the contract
for the sale of the land was put in writing ; and 2. Was it signed by
the party to be charged therewith, or b}- an\' person b}' him thereto law-
fully authorized? We think that tiiere can be no doubt that the instru-
ment, which for the reasons above stated could not operate as a deed,
may be regarded as a contract put in writing. It is in truth a written
contract more than ordinaril}' complete, both in form and substance,
and the onl}- question admitting of an}' sort of doubt is, whether it
has been signed b}- the defendant, or by any legally authorized agent.
We are of opinion that it cannot be considered as a contract with the
plaintiff, signed b}' the defendant himself, independently of an}' act of
his agent, because, when the defendant put his name and seal to it, no
such contract had been made. But we think that, in legal effect, it
was signed for him, and in his name, by his properl}' constituted
agent. The failure of the agent to make the instrument operate as the
deed of his principal, did not prevent him from causing it to operate as
tbe simple contract of his principal ; for nothing is more common than
for an agent to fill up blanks in a promissory note signed by his prin-
cipal, and nobody has ever doubted that the principal was bound by it.
That the authority of the agent, in all such cases, ma}', under the stat-
ute of frauds, be by parol, is well settled. 1 Parsons on Cont. 42 ; 2
Kent's Com. 612 ; Coles v. Trecothic, 9 Ves. jun. 250.

The plaintiff is entitled to a decree for a specific performance, and
also to recover back all the costs which he has been compelled to pay
in the action of ejectment at law, and also the costs which he has had
to pay upon the dissolution of the injunction in the court of equity
below ; to ascertain which an account may be ordered.

Per Curiam, Decree accordingly.

S£UT. v.] VOSE V. DOLAN. 65

VOSE V. DOLAN.
Supreme Judicial Court of Massachusetts. 1871.

[108 Muss. 155.]

Tort for the conversion of a lot of earth, gravel, and stone. The
case was referred by the Superior Court to an arbitrator, the material
parts of whose report were as follows : —

The parties agreed in writing on March 14, 1861, that the defendant
should make certain streets and remove the earth and gravel in certain
mounds or knolls on the plaintiff's estate ; and the defendant began the
work, but had not finished removing all the earth and gravel on April
14, 1864. The plaintiff offered to prove that on that day the parties
signed and sealed an instrument in duplicate, of which the following is
all that is material : "Memorandum of an agreement made this four-
teenth day of April, 1864, by and between Thomas Dolan and Francis
Vose witnesseth, that on the fourteenth day of March, 1861, the said
parties entered into an agreement in writing in reference to making
certain streets and excavating and removing certain mounds or knolls
on an estate of said Vose in Dorchester, according to certain specifica-
tions therein set out, and certain profiles made b}' Alexander Wads-
worth, and therein referred to, which said agreement ma}' be referred
to in connection with this memorandum ; and whereas said agreement
has not been fulh' performed by said Dolan, and much earth and gravel
contemplated b}' the parties to said agreement to have been removed
according to said specifications and profiles still remain on the premises
aforesaid, the said Vose, in consideration of , paid by

the said Dolan, herebv sells, transfers and conve3's to the said Dolan
all the remaining earth and gravel on said premises, which the parties
under said agreement intended should be excavated and removed
according to the aforesaid specifications and profiles, after completing
and grading the streets named in said agreement as therein set forth,
and being in quantity . The said Dolan, in considera-

tion of the said sale and transfer, hereb}' promises and agrees that he
will faithfully and fully, and to the satisfaction of said Wadsworth,
execute and complete all the filling, excavating, and grading, contem-
plated and agreed b}- him to be performed in the aforesaid agreement,
and in the manner therein specified, on or before the first daj* of
August, 1864, and will forfeit all right to all earth or gravel which
shall remain on said premises on said first day of August, 1864, and
which ought to have been removed by him in the due and proper exe-
cution of said agreement."

The plaintiff further offered to prove that the defendant then made
his two promissory notes, each for the sum of $500, and delivered them
to the plaintiff, in part pa\'ment for the earth, gravel, and stone, and

tb VOSE V. DOLAN. LCHAP. 1.

signed another note, and handed it to Wadsworth, who was a surve3'or,
a blank being left therein for the amount ; tliat the quantity of earth,
gravel, and stone remaining had not then been ascertained ; that it was
agreed b}' the parties that Wadsworth should measure and ascertain the
quantity-, and should fill the blank in the note by inserting the total
price of the earth, gravel, and stone, at $1.25 per square, less the sum
of $1,000, the amount of the two notes of $500 each; that the said
instrument of two parts was then executed by the parties, the one
being taken by the defendant, and the other b}' Wadswortli ; that
blanks were left in each copy for the number of squares sold and the
considerations ; that these blanks were to be filled b}' Wadsworth,
when he should ascertain the quantity ; that Wadsworth did within
a short time ascertain bj- measurement the quantity to be 1,808
squares, and the price thereof to be $2,260, and caused to be inserted
in the note the words "twelve hundred and sixty" before the word
"dollars," and in the cop}' of the instrument which he had retained,
the words " eighteen hundred and eight squares," as the quantity sold,
and the words " twent}- two hundred and sixty dollars," as the consid-
eration for the sale ; and that the blanks in the copy taken by the
defendant have not been filled. To the admission of this evidence,
and to the introduction in proof of the instrument and of the note, the
defendant objected. But the objection was overruled. It appeared
that the defendant had no notice of Wadsworth's intention to fill the
blanks, or of how he intended to fill them.

The refex'ee found " that, b}' the instrument aforesaid, the defendant
was bound to remove the earth, gravel, and stone, which he had pur-
chased, by August 1, 1864; that he failed to remove 700 squares,
through no default of the plaintiff; that he thereupon ceased to have
any right of property in the 700 squares, and was a wrong-doer in after-
wards removing and appropriating them to his use ; that the 700
squares were of the value of $875 ; that the plaintiff was entitled to
judgment for that sum, and interest, and his costs of court ; but that
if the court should be of opinion that the above evidence should not
have been received, or that upon the evidence the instrument was not
the deed of the defendant, the plaintiff should take nothing by his writ,
and the defendant should recover his costs of court."

Tiie Superior Court ruled that the evidence was properly received,
and that the instrument was the deed of the defendant, and ordered
judgment to be entered for the plaintiff for the amount found by the
referee. The defendant alleged exceptions.

W. Colbuni, for the defendant.

0. Allen, for the plaintiff.

Colt, J. Upon the question submitted by the report of the referee,
we are clearl}- of opinion that evidence of the means taken to ascertain
the quantity of earth, gravel, and stone which was to be removed under
the contract of April 14, and of the subsequent filling of the blanks
in the note and sealed instrument with the ascertained amounts, was

8ECT. v.] DICKEKMAN V. ASHTON. 67

properly received by him ; and that the instrument containing the
terms of the contract was binding upon the defendant as his deed,
notwithstanding the subsequent filling of the blanks. It was a com-
pleted, intelligible contract when it was executed. The existence of
the blanks did not impair its validity. The quantity of earth sold was
definitely indicated by reference to specifications and profiles, and it
was not necessary to state the number of squares sold or the price to
be paid for them. This was a matter of computation from data given.
If the blanks had been left, the rights of the parties would have been
the same as if filled before delivery. The alleged alteration of the
instrument was therefore an immaterial alteration, in no way changing
its terms or enlarging the defendant's liabilit}' under it. There is no
pretence that it was fraudulently made ; on the contrarj', the blanks
were filled by the surveyor, in accordance with the agreement of the
parties at the time the deed was executed.

It is now well settled that an immaterial alteration of a sealed instru-
ment, not fraudulent, will not invalidate it, though made b}- the part}'
claiming under it. Brown v. Pinkham, 18 Pick. 172; Commonwealth
V. Emigrant Industrial Savings Bank, 98 Mass. 12 ; Chessman v. Whit-
temore, 23 Pick. 231 ; Adams v. Frye, 3 Met. 103. The case is not
within those in which it is held that blanks in a deed constituting a
material part of the instrument itself cannot, in the absence of the
maker, be filled by parol authorit}', because authority' to make a deed
must be given by deed. Burns y. Lj^nde, 6 Allen, 305 ; Basford v.
Pearson, 9 Allen, 387. Exceptions overruled.

DICKERMAN v. ASHTON.
Supreme Court of Minnesota. 1875.

[21 Minn. .538.]

Appeal by defendant from an order of the Court of Common Pleas
for Ramsey County, Hall, J., presiding, refusing a new trial, after a
trial by the court without a jury.

Lorenzo Allis^ for appellant.

Bigeloio^ Flandrau, & Clarlc, for respondent.

GiLFiLLAN, C. J. This is an action to enforce specific performance
of a contract to convey real estate. The contract was in writing, and
purported to be under the seal of the defendant, the vendor, and was
made on his part by an agent, with only oral authority to make it.

The defendant makes the point that the proof of the authority of the
agent was not of that clear and satisfactory character which a court of
equity will insist upon as to contracts the specific performance of
which is sought. But the " statement of the case " does not show that

68 CLOUGH V. CLOUGH. [CHAP. L

it contains all the evidence on that point ; and where such is the case,
this court presumes that there was sufficient evidence to justify the
finding of fact of the court below. Henry v. Hinman, 21 Minn. 378.

It was decided in Brown v. Eaton, 21 Minn. 409, that the authority
of an agent to make such a contract need not be in writing.

The defendant objects that the contract is void, because it purports
to be a specialty, and that the authority of an agent to bind his
principal by contract under seal must also be under seal. The proposi-
tion is true, that an agent, not authorized by deed, cannot execute a
contract which shall be valid, as a deed or specialty, against his prin-
cipal. But in such case, if the contract need not be by deed, it will
be valid as a simple contract, nothwithstanding a seal is attached to it.
Minor v. Willoughby, 3 Minn. 225. The order denying a new trial is
affirmed.^

JOSEPH E. CLOUGH and others v. WILLIAM M. CLOUGH-

Supreme Judicial Court of Maine. 1882.

[73 Me. 487.]

On report.

Writ of entry, dated September 3, 1880.

Plea, general issue.

At the trial the defendant offered in evidence the deed of John
Clough to him. The plaintiffs objected to the deed upon the ground
that it was not properly executed. For the purposes of this trial it
was admitted that the name of the grantor in the deed was signed
by the grantee, at the grantor's request and in his presence, and
that the grantor personally acknowledged the deed, and that it was
duly delivered to the defendant. The case was then submitted to the
law court. If such a deed is valid in law the case is to stand for trial ;
if not, default is to be entered.

A. P. Gould, for the plaintiffs, contended that when one person
writes the name of another at his request, he does it as agent.

Thus if A. writes B.'s name to a deed, to assert that because B. is
present, giving personal and verbal authority to A., A. becomes B.,
that it is B.'s own act precisely as if no person was acting but himself,
and no act of agency is done, is too transparent a sophism to be
adopted by a court of law.

The grantee cannot take the acknowledgment of the grantor. Bea-
man v. Whitney, 20 Maine, 413 ; Gibson v. Norway Savings Bank, 69
Maine, 579.

» See Worrall v. Mmm, 5 N. Y. 229, 238-243 (1851), Jones v. Horner, 60 Pa. 214
(1869), Long i'. Hartwell, 34 N. J. L. 116, 121-122 (1870), ace; and Wheeler v.
Nevins, 34 Me. 54 (1852), contra. See also Russell v. Anuable, 109 Mass. 72. 74. 77
(1871). — Ed.

SECT, v.] CLOUGH V. CLOUGH. 69

How vastly more important that the signature of the grantor should
be affixed by a disinterested person. A deed is good without acknowl-
edgment, that being required simply before recording. See Wash.
Real Prop. (2 ed.) 601 (575).

To allow the grantee to act as agent of the grantor in executing the
deed, would be a violation of one of the cardinal rules of the law of
agency.

C. E. Littlejield, for the defendant, cited : Bird v. Decker, 64 Maine,
552; Lovejoy v. Richardson, 68 Maine, 386 ; Bartlett v. Drake, 100
Mass. 174; Holbrook r. Chamberlain, 116 Mass. 155; Wellington u.
Jackson, 121 Mass. 159 ; Alhim v. Perry, 68 Maine, 234 ; Wood v.
Goodridge, 6 Cush. 117; 3 Wash. Real Prop. 120.

\Valton, J. The only question is whether a deed can be made
valid b}' subsequent acknowledgment and delivery, when the name of
the grantor has been signed to it b}' the grantee. We think it
can.

If one acknowledges and delivers a deed which has his name and a
seal affixed to it, the deed is valid. No matter by whom the name and
seal were affixed. No matter whether with or without the grantor's
consent. The acknowledgment and delivery are acts of recognition
and adoption so distinct and emphatic that they will preclude the
grantor from afterward denying that the signing and sealing were also
his acts. The}- are his by adoption. Without deliver}' the instrument
has no validit}'. B}- force of our statutes the instrument is incomplete
without acknowledgment. Till one or both of these acts are performed
the instrument has no more validit}' than a blank deed. By taking the
instrument in this incomplete condition and completing it, the grantor
makes it his deed in all its particulars. He adopts the signature and
the seal the same as he does the habendum and the covenants which
were inserted bv the printer of the blank. The deed is not sustained
on the ground of ratification, but adoption. Ratification applies to
agenc\'. No question of agenc\' arises in this class of cases. The valid-
ity of the deed cannot rest upon the ground of agenc\' or ratification.
If such were the case the authority or the ratification would have to be
by instrument under seal ; for authority or ratification must be of as
high a character as the act to be performed or ratified. If the act is
the execution of a sealed instrument, it must be authorized or ratified
by a sealed instrument. We therefore repeat that the validity of the
instrument in this class of cases does not rest on agency or ratification,
but on adoption. No matter by whom the signing and sealing were
performed, nor whether with or without the grantor's consent. By
completing the instrument, he adopts what had previously been dono
to it, and makes it his in all its particulars.

It is not often important to notice this distinction ; but it is impor-
tant in this case in order to avoid the apparent absurdity of holding
that an agent can contract with himself, can be both grantor and
grantee. An agent cannot contract with himself. He cannot as

70 WHITE V. DUGGAN. [CHAP. L

agent for the grantor execute a deed to himself. But he can prepare
a deed running to himself, even to the signing and sealing, and if tlie
grantor then adopts the deed by personal!}' acknowledging and deliver-
ing it, it will be a legal and valid instrument. But its validity rests
upon the ground of adoption, not agenc}' or ratification. And when
the word "ratified" or " ratification " is used in this class of cases,
as it often is, it will be found on careful examination that it is used in
the sense of " adopted" or " adoption," and not in the technical sense
in which it is used in the law of agency. Bartlett v. Drake, 100 Mass.
174 ; Story on Agency, §§ 49 and 252 ; Lovejoy v. Richardson, 68
Maine, 386, and cases there cited.

Action to stand for trial.

WHITE, Judge of Probate, v. DUGGAN and Others.
Supreme Judicial Court of Massachusetts. 1885.

[140 Mass. 18.]

Holmes, J. This is an action on a probate bond. The following
facts are relied on as a defence b}' the sureties. Having signed
another bond which turned out to be wrong in form, they signed this
one in blank at their piincipal's request, and upon his representation
that the penal sum in the former bond ($2000) was satisfactory, and
that the new bond was to be for the same amount. The principal
filled out the blank with a larger penal sura, and delivered the bond,
but subseqnentl}' told the sureties that it was in the penal sum of
$2000, which the)' believed until after this action was brought.

It does not appear in terms that the representation that the penal
sum of the former bond was satisfactory was false, or that the judge of
probate did not require the larger sum for the first time when the
second bond was offered. And if the bill of exceptions should be
taken at all strictly against the defendants, it would seem that what-
ever expectations they may have entertained as to the action of the
Probate Court when they handed the blank bond over to their principal,
they handed it to him to be filled in as the Probate Court might
require, being chargeable with knowledge that the time for final action
upon the matter had not yet come. In this view of the facts, the only
question is whether the case is governed by Burns v. Lynde, 6 Allen,
305, and, more especially, by Basford v. Pearson, 9 Allen, 387 ; and
we are of opinion that it is not. In Burns v. L3'nde, a deed had been
delivered executed in blank, and a parol authorit}' was relied on to
make valid a subsequent filling in of the blanks in the absence of the
grantor. The filling in of the blanks stood on the same footing as
signing and sealing, and could be authorized only by a power under
seal. Basford v. Pearson applied the same principle, without fur-

SECT, v.] WHITE V. DUGGAN. 71

ther discussion, where a deed was signed and sealed b}' husband
and wife, and he subsequently filled in the blanks and made altera-
tions, with the knowledge of the grantee, in the absence of the wife
and by her parol authority, and then delivered the deed. It may be
somewhat hard to reconcile the latter case with those decisions which
sustain the filling in of blanks in the presence of a party who has
previously signed and sealed, even after delivery, on the ground
that this is equivalent to a new deliver^'. For the reason given
imports that an authorized deliver}- will cure a defect of authority
in the writing, which seems indisputable. 2 Bl. Com. 307. Perkins,
pi. 130. But we do not understand that it was intended to deny this
principle, as it is expressly recognized by the same judge in Burns y.
Lynde, 6 Allen, 310. At all events, when the grantee or obligee is
ignorant of the order in which the several parts of the instrument are
written, and the delivery to him is duly authorized, he is entitled to
assume that the instrument was so written as to bind the grantor or
obligor from whose control it comes. We should add that, in this
commonwealth at least, we cannot question for an instant that the
authority to deliver mereh* may be given b}' parol. This does not
seem to have been doubted in Basford v. Pearson. See Parker y.
Hiil, 8 Met. 447 ; Foster v. Mansfield, 3 Met. 412. To admit a doubt
on this point would shake many titles.

If we are to interpret the bill of exceptions more tavorably for the
defendants than we have done thus far, and to take it that they onlj
authorized the bond to be filled in with a penal sum of S2000, — and
even if we take the further step of assuming that limitation to have
carried with it the understanding between them and the principal that
they onh' assented to a deliver}- if the bond was filled in as they
expected it to be, — we are still of opinion that no defence is made
out. We are aware that there are several cases more or less opposed
to our conclusion. People v. Bostwick, 32 N. Y. 445 ; Ohio v. Boring,
15 Ohio, 507 ; United States v. Nelson, 2 Brock, 64 ; Preston v.
Hull, 23 Grat. 600, and cases cited. But we think that the prevailing
tendencv, both in this State and elsewhere, has been in the direction
we have taken. Thomas v. Bleakie, 136 Mass. 568 ; Butler v. United
States, 21 Wall. 272 ; Dair v. United States, 16 Wall. 1 ; South Ber-
wick V. Huntress, 53 Maine, 89 ; State v. Peck, 53 Maine, 284 ; State
V. Pepper, 31 Ind. 76 ; Millett v. Parker, 2 Met. (Ky.) 608.

These decisions are generall}' put on the ground of estoppel. It has
been debated in England whether, and under what circumstances,
there could be an estoppel by negligence. Swan v. North British
Australasian Co., 2 H. & C 175. And it has been admitted that there
might be, in a supposed case hardh- as strong as this. Tayler v.
Great Indian Peninsula Railwa}-, 4 DeG. & J. 559, 574. A specialty
deriving its validit}- from an estoppel in pais is perhaps somewhat like
Nebuchadnezzar's image with a head of gold supported by feet of clay.
But if the case is properl}- put on that ground, then, as was pointed

72 PHELPS V. SULLIVAN. [CHAP. I

out in Commonwealth v. Pierce, 138 Mass. 165, the difference between
intent and negligence, in a legal sense, is ordinarily' nothing but the
difference in the probability, under the circumstances known to the
actor and according to common experience, that a certain consequence,
or class of consequences, will follow from a certain act ; and it follows
that the question when an estoppel will arise is simply one of degree.
If, on the other hand, the true question is the scope of the principal's
authority to deliver the bond, — bearing in mind that an authorized deliv-
er}' will cure defects in the writing of the bond, that the authority to
deliver may be by parol, and that the scope of authority maj' be greater
than is wished by the obligor, ostensible authorit}- being actual authority,
— then the question is equally one of degree, depending on the partic-
ular circumstances, just as the same question is in tort. Quacunqiie via,
then, all that we have to do is to deal with the case before us ; and it
will serve no useful purpose to consider whether, if the surety had
intrusted the bond to the principal, with no authority to deliver it at
all, or whether, if he had handed a blank sheet of paper, with his sig-
nature and seal at the bottom, to an agent, directing him to deliver it
filled out one wa}', and he had filled it out in an entirely' different way
and delivered it, such cases would fall on one or the other side of the
line. We are of opinion that, when a bond such as this is intrusted to
the principal for his use, to fill it up and deliver it, the possibility of
his being required by the probate judge to insert a penal sum larger
than the suret}" directed, and of his doing so, is so obvious and so near,
that the surety must be held to take the risk of his principal's conduct,
and is bound b}' the instrument as deliv^ered, although delivered in
disobedience of orders, if, as here, the obligee has no notice, from the
face of the bond or otherwise, of the breach of orders. To hold other-
wise would be to disregard the habits of the community.

Exceptions overruled}

J. L. Eldr'idge & J. E. Cotter^ for one suret}'.

E. G. Pratt, for the other suret}'.

J. F. Wiggin & B. M. Fernald, for the plaintiff.

PHELPS V. SULLIVAN.
Supreme Judicial Court of Massachusetts. 1885.

[140 Mass. 36.]

Morton, C. J. This is a writ of entry to forclose a mortgage. The
demandant claims under a mortgage from the tenant to Nathan P.
Pratt and an assignment thereof b}- said Pratt. It appeared at the
trial, that said Pratt executed and acknowledged the assignment in

* Compare Goodyear Dental Vulcanite Co. v. Bacon, 151 Mass. 460 (1890). — Ed.

SF^T- v.] PHELPS V. SULLIVAN. 75

blank, and orall}- authorized his son, when he could find a person to
purchase the mortgage, to write in the name of such person as the gran-
tee, and to deliver the assignment. The son negotiated the mortgage
to one Simonds, filled in his name as grantee, and then delivered to him
the assignment. He afterwards reported what he had done to Nathan
P. Pratt, who replied, " It is all right." The only question presented
by the bill of exceptions is whether, upon these facts, there was a valid
assignment to Simonds.

The tenant contends that the assignment was invalid, reiving upon
the rule of the common law that an authority to an agent to execute
a deed or other specialty must be under seal. But we do not think
the case is governed by this rule. Where a deed purports to be
executed by an agent, or where the person with whom an agent is
dealing knows that he is acting as agent, it ma}' be tliat such person
must see to it at his own peril that the agent has legal autliority.
But in this case the assignment did not disclose, and Simonds did not
know, that the son was acting as agent in any respect except to deliver
the assignment. It is settled that an authority to deliver a deed or
other specialty may be bj' parol. Parker v. Hill, 8 Met. 447. A deed
takes effect from its delivery ; and it ma^- well be held that the author-
ity to deliver, which may be oral, is an authority to dehver the deed
in the condition in which it is when delivered, if there are no circum-
stances of suspicion to put the grantee upon inquiry. When a grantor
signs and seals a deed, leaving unfilled blanks, and gives it to an
agent with authority- to fill the blanks and deliver it, if the agent fills
the blanks as authorized, and delivers it to an innocent grantee without
knowledge, we think the grantor is estopped to deny that the deed
as delivered was his deed. Otherwise, he may by his voluntary act
enable his agent to commit a fraud upon an innocent party. Whether,
if the agent violates the instructions in filling the blanks, the grantor
would not in like manner be bound, we do not discuss, as it is not
involved in this case. To hold that such deeds are invalid, because
the authority to fill the blanks is not under seal, would tend to unsettle
titles, and would be mischievous in its results. Few deeds are
written by the grantors. Most are written b}- scriveners, and a
grantee to whom a deed is delivered has no means of determining
whether the bod}' of the deed was written before or after the signature
was affixed. It would be very dangerous to allow titles to be defeated
by parol proof that a deed, without suspicion on its face, dul}- signed
and sealed b}- the grantor, which he authorized to be delivered, was in
fact written in some part after he executed it, by an agent having only
oral authority. We think a person taking such a deed in good faith
has the right to rely upon it ; and that the grantor cannot be permitted
to aver that it is not his deed. White u. Duggan, ante., 18.

The cases of Burns v. Lynde, 6 Allen, 305, and Basford v. Pearson,
9 Allen, 387, are distinguishable from this case. In Burns v. L3'nde,
the deed had been delivered to the grantee signed in blank, and ha

74 CRIBBEN V, DEAL. [CHAP. I.

himself, after the delivery, filled the blanks. In Basford v. Pearson, a
deed had been signed by the defendant in which the name of the
grantee was left blank. The deed contained the covenant against
the claims of " all persons claiming by, through, or under us, but
against none others." The grantor gave it to her Imsband to be de-
livered. He, by parol authority from his wife, but in her absence,
and with the knowledge of the grantee, inserted the name of the
grantee, and erased the words which limited the covenant, so as to
make it a general covenant of warranty against all persons. He then
delivered the deed. If he had made these material altei-ations b}'
parol authority from his wife, and without the knowledge of the
grantee, a different question would have been presented, more nearly
resembling the question before us.

Upon the facts presented in the bill of exceptions, we are of opinion
that the assignment to Simonds was valid ; and therefore that the ruling
ordering judgment for the tenant was erroneous.

Exceptions sustained}

G. H. Stevens, for the demandant.

S. Bancroft, for the tenant.

CRIBBEN V. DEAL.
Supreme Court of Oregon. 1891.

[21 Ore. 211.]

Multnomah Count}-. L. B. Stearns, Judge. Plaintiff appeals.
Affirmed.

W. 31. Gregory, for appellant.

Killin, Starr, <& Thomas for respondent.

Lord, J. This is a suit in equit}', brought b}- the plaintiffs to have a
deed of general assignment set aside and declared void, and to have
the attached propert}' applied in payment of their judgment. The
single proposition of law involved is, whether the name of the grantee
can, by some one authorized upon parol authority of the grantor, be
inserted in a blank left in a deed of general assignment, after the deed
has been signed, sealed, and acknowledged, but before delivery. For the
purposes of this case, the facts are these : that the deed of assignment
was made on the 17th of November, 1888, by C. E. Deal. -T. C. O'Reilly,
and J. W. Brockett, partners doing business under the firm name of
Deal, O'Reilly, & Co., to Thomas Connell for the benefit of creditors :
that it was in all things completed and signed and sealed and acknowl-
edged, except that a blank was left for the name of the grantee ; that
Mr. F. A. E. Starr was authorized to insert as the name of such grantee

1 Ace. : Nelson v. McDonald, 80 Wis. 605 (1891). —Ed.

SECT, v.] CRIBBEN V. DEAL. 75

any person satisfactory to himself and the members of such firm ; that
on the following da}', Mr. Starr, with the consent of the members of
sucli firm, inserted the name of Thomas Connell as assignee in such
deed, and the deed was delivered to Thomas Connell, and on the next
day was recorded. Upon this state of facts, the contention is that
such deed is void because the name of Thomas Council was not in-
serted when the deed was signed and sealed.

It is said in Sheppard's Touchstone, 54, that " every deed well made
must be written, i. e., the agreement must all be written before the
sealing and delivery of it ; for if a man seal and deliver an empty piece
of paper or parchment, albeit he do therewithal give commandment
that an obligation or other matter shall be written in it, and this be
done accordingly, yet this is no good deed." This is founded upon
that ancient and technical rule of the common law, that the authority
to make a deed, or to alter or fill a blank in some substantial part of it,
cannot be verbally conferred, but must be created by an instrument of
equal dignit}'. As the deed was under seal, to alter or complete it by
the insertion of the name of the grantee required the authoritv to be
under seal. So firmly rooted was this principle that it mattered not
with what solemnities a deed may have been signed and sealed, unless
the grantee's name was inserted, and delivery was made by him, or
some one legall}' authorized under seal, it was a nullity. It imposed
no liability on the party making it, nor conferred an}' rights upon the
party receiving it ; it was, in fact, no deed. Hence, it was held that
parol authority to fill a blank with the name of a grantee could not be
conferred without violating established principles of law, and rendering
the deed void. Tliis doctrine still prevails in England.

It is true that in the case of Texira v. Evans, cited in Master v.
Miller, 1 Anstr. 225, Lord Mansfield held otherwise ; but this was in
effect overruled in Hibble white v. McMorine, 6 Mees. & W. 200, on
the ground that an authority to execute a sealed instrument could not
be given by parol, but must be given by deed, although this latter case
.seems more or less trenched upon b}' the decision in Eggleston v. Gut-
teridge, 11 Mees. & W. 465, and by Davison v. Cooper, 11 Mees. &
W. 778, and in West v. Steward, 11 Mees. & W. 47. But the rule
has never been universally accepted in this country ; and however
the holding of some courts may be, still the better opinion and the
prevailing current of authority is, that when a deed is regular!}^ exe-
cuted in other respects, with a blank left therein for the name of the
grantee, parol authorit}' is sufficient to authorize the insertion of the
name of such grantee, and that when so filled out and delivered, it is
a valid deed.

It is true that Chief Justice Marshall, in United States v. Nelson, 2
Brock. 74, felt bound to follow the ancient rule ; but his opinion clearly
indicates he felt that the authority to fill a blank in an instrument
under seal should be held to be valid. lie says : " The case of Speake
V. United States, 9 Cranch, 28, in determining that parol evidence of

76 CRIBBEN V. DEAL. [CHAP. L

such assent ma}' be received, undoubtedly goes far toward deciding it»
and it is probable that the same court may completely abolish the dis-
tinction in this particular between sealed and unsealed instruments."
Again : "If this question depended on those moral rules of action
which in the ordinar}' course of things are applied by courts to human
transactions, there would not be much difficulty in saying that this
paper ought to have the effect which the parties at the time of its
execution intended it should have." And he concludes with this state-
ment : "I say with much doubt, and with a strong belief that this
judgment will be reversed, that the law on the verdict is, in my opinion,
with the defendants."

The rule was purely technical, and the outgrowth of a state of aff'airs
and condition of the law which does not now exist. The reason of the
law is the life of it, and when the reason fails, the law itself should fail.
At the present day the distinction between sealed and unsealed instru-
ments is fast disappearing, and the courts are gradually doing away
with them. As Judge Redfield said: "But it [the rule] seems to be
rather technical than substantial, and to found itself either on the
policy of the stamp duties, or the superior force and sacredness of
contracts b}- deed, both of which have little importance in this countr}'.
And the prevailing current of American authorit}', and the practical
instincts and business experience and sense of our people, are undoubt-
edly otherwise." 1 Redfield on Law of Railways, 124.

In Drury v. Foster, 2 Wall. 24, the court says : "Although it was
at one time doubted whether parol authority' was adequate to autliorize
an alteration or addition to a sealed instrument, the better opinion of
this da}' is that the power is sufficient." Again, in Allen v. Withrow,
110 U. S. 119, the court says : "It may be and probably is the law in
Iowa, as in several States, that the grantors in a deed conveying real
property, signed and acknowledged with a blank for the name of a
grantee, may authorize another party by parol to fill up the ])lank."
" But, " he continues, "there are two conditions essential to make a
deed thus executed in blank operate as a conveyance of the property
described in it : the blank must be filled by the part}^ authorized to fill
it, and this must be done before or at the time of the delivery of the
deed to the grantee named." In the case at bar these conditions were
fulfilled.

In Inhabitants, &c., v. Huntress, 53 Me. 89, 87 Am. Dec. 535, the
court held that a party executing a deed, bond, or other instrument,
and delivering the same to another as his deed, knowing there are
blanks in it to be filled necessary to make it a perfect instrument, must
be considered as agreeing that the blanks may be thus filled after he
has executed it. In delivering the opinion of the court, Kent, J., said :
"The rule invoked is purely technical. Practicall}' there is no real
distinction in this matter between bonds and simple contracts. There
is no more danger of fraud or injury or wrong in allowing insertions in
a bond than there is in allowing them in a promissor}' note or bill of

SECT, v.] CKIBBEN V. DEAL. 77

exchange ; both are agreements or contracts, and in neither can unau-
thorized alterations be made with impunity. Considering that the
assumed difference rests on a mere technical rule of the common law,
we do not think that the rule should be extended beyond its necessarj-
limits, viz., that a sealed instrument cannot be executed by another, so
far as its distinguishing characteristic as a sealed instrument is in ques-
tion, unless by an authority under seal." Likewise in Bridgeport Bank
V. New York, &c. R. R. Co., 30 Conn. 274, Ellsworth, J., said : "Nor
can any reason be assigned which is founded in good sense, and is not
entirely technical, why a blank in an instrument under seal may not be
filled up by the party receiving it after it is executed as well as any
other contract in writing, where the parties have so agreed at the time.
In either case the contract, when the blank has been filled, expresses
the exact agreement of the parties, and nothing but an extreme techni-
cal view, derived from the ancient law of England, can justify the
making of any distinctions between them."

It is to be noted that both of these adjudications were b}' courts of
States where seals were not abolished. In Burnside v. Wayman, 49
Mo. 357, where the name of a grantee in a trust deed was left in blank,
Wagner, J., said : " It is contended that no recover}' could be had or
relief granted on the first count, because no grantee was named in the
deed of trust, and that in consequence thereof the instrument was void,
and no title conveyed ; but we think otherwise. Whatever ma}' have
been determined in some of the old books, the better doctrine is against
such a position." And subsequently, in Field v. Stagg, 52 Mo. 534, 14
Am. Rep. 435, this doctrine was affirmed in all its breadth, the court
saying: "A deed regularly executed in other respects, with a blank
left therein for the name of the grantee, and placed in that condition in
the hands of a third person with verbal authority, but no authority
under seal from the person who executed it, to fill up the blank in his
absence, and deliver the deed to the person whose name is inserted as
grantee, when so filled out and delivered is a valid deed." In Duncan
V. Hodges, 4 McCord, *239, 17 Am. Dec. 734, it is held that a deed
executed with blanks, and afterwards filled up and delivered by the
agent of the party, is good. So in Van Etta v. Evenson, 28 Wis. 33,
9 Am. Rep. 486, it was held that where a note and mortgage otherwise
fully executed, but with a blank in each for the name of the payee and
mortgagee, were delivered to an agent who was to procure from whom-
soever he could a loan of money thereon for the maker, this shows an
intention that the agent should fill the blanks, and when so filled the
instruments were valid without a new execution and delivery. And the
same doctrine was expressly affirmed in Schintz v. McManamy, 33 Wis,
301, the court, by Lyon, J., saying: " It was doubtless competent foi
the grantors to authorize Emil by parol to insert the name of the gran-
tee in the deed after they had signed and acknowledged the same.''
And in State v. Young, 23 Minn. 551, it was held that authority to fill
a blank in a sealed instrument may be given by parol, and that such

78 CKIBBEN V. DEAL. [CHAP. L

authority may be either express or implied from circumstances, and
that it may be implied from circumstances whenever these, fairly
considered, will justify the inference. So in Swartz v. Ballon, 47
Iowa, 188, 29 Am. Rep. 470, where the owner of land executed a deed
in blank and placed it in tlie hands of another part}- under circumstances
which raised an implied authority in the latter to insert the name of the
grantee, it was held that the insertion of the grantee's name, either by
the party receiving the deed or by some one authorized by him, made
the instrument perfect as a conveyance.

Without referring to the authorities at greater length, there are
numerous other cases supporting the same doctrine : Wiley v. Moor,
17 Serg. «fe R. 438 ; 17 Am. Dec. 696 ; Smith v. Crooker, 5 Mass. 538 ;
Gibbs V. Frost, 4 Ala. 720 ; Wooley v. Constant, 4 .Johns. 54 ; 4 Am.
Dec. 246 ; Ex parte Decker, 6 Cow. 60 ; Richmond Mfg. Co. v.
Davis, 7 Blackf 412; Boardman t-. Gore, 28 N. J. Eq. 517 ; 18 Am.
Dec. 73 ; Camden Bank v. Hall, 14 N. J. L. 583 ; Ragsdale v. Robin-
son, 48 Tex. 379. The contrary rule was adopted in Upton v. Archer,
41 Cal. 85; 10 Am. Rep. 266; Preston v. HuU, 22 Gratt. 600; 14
Am. Dec. 153; Ingram v. Little, 14 Ga. 173; 58 Am. Dec. 549.

It seems to us that the weight of authority and better opinion is, that
parol authority is sufficient to authorize the filling of a blank by the
insertion of the name of the grantee in a deed after its execution but
before delivery, as in the case at bar. There is no pretence of any
mistake or fraud, or that the blank was not filled as authorized and
directed. In a word, that it was filled by a party authorized to fill it,
and was done after its execution and before its delivery to the grantee
named. Nor is it questioned but what the deed faithfully expresses
the intention of the parties, and was duly executed for the purposes
specified ; and in such case it seems to us complete effect ought to be
[given] to that intention, notwithstanding the technical rule of the com-
mon law in respect to such instruments. As Mr. Justice Swa3'ne said :
" If a person competent to convey real estate sign and acknowledge
a deed in blank, and deliver the same to an agent, with an express or
implied authorit}- to fill up the blank and perfect the conveyance, its
validity could not be well controverted." Drur^' v. Foster, 2 Wall. 24.

It results that the decree dismissing the bill must be sustained.^

1 For the doctrines, English and American, as to the power of a partner to hind
by specialty copartners who have hy parol given assent, see Steiglitz ». Egginton,
Holt, N. P. 141 (1815); Gram v. Seton, 1 Hall, 262 (1828); Parsons on Partnership,
§ 122, n. (0-

As to granting to an officer or other agent of a corporation power to execute an
instrument under the corporate seal, see Savings Bank v. Davis, 8 Conn. 191 (1830) ;
Burrill v. Nahant Bank, 2 Met. 163(1840); Hopkins v. Gallatin Turnpike Co., 4
Humph. 403 (1843) ; Angell & Ames on Corporations, §§ 282-283, 292; 4 Thompson
on Corporations, §§ 5107-5108, 5177. — Ed.

SECT, l.j BKAULIEU V. FINGLAM. 79

CHAPTER II.

THE AGENT'S POWER TO SUBJECT HIS PRINCIPAL TO
LIABILITIES.

SECTION I.

The Rise of the Doctrine.

BEAULIEU V. FINGLAM.

Common Pleas. 1401.

[}'. B.2 11. IV. 18, pi. 6.J

One brought such a writ. St Willihelmus Beaulieu, etc. pone Hoge-
mm J^iiKjlam, quare cum secundum legem et consuetudlnem regni uos-
tri Anglioi hactenus obtenta, quod quilihet de eodem regno ignem
suum salvo et secure custodiat, et custodlre teneatur, ne per ignem suum
dampnnm aliquod vicbds suis idlo modo erenlat: prcjed' Mogerus if/uem
suum apud Carlloti tarn negligenter cnstodivit, quod j^ro defectu debitm
custodice igtiis prmdicti, bona et cattcdla ipsius Willihelmi ad valentiam
quadraginta libraruvi in domibiis ibidem existentia ac domus prcedictoe
ad tunc et ibidem per ignem ilium cumbusta extiterunt, ad dampmim
ijjsius W. etc. And counted accordingh'.

Hornby. Judgment of the count, for he has counted on a common
custom of the realm, and has not said that this custom has been
used, etc.

To which the whole court said pass over, for common law of this
realm is common custom of the realm, and then Thirnixg [C. J.] said
that a man shall answer for his fire which through misfortune burns
another's goods.

And some were of opinion that the fire cannot be called his fire, for
this reason, that a man cannot have property in fire ; and that opinion
is not agreed to.

Markham [J.]. A man is held to answer for the act of his servant
or of his hosteler in such case, for if my servant or my hosteler puts a
candle on a wall, and the candle falls in the straw and burns all my
house and the house of my neighbor also, in this case I shall answer
to my neighbor for the damage that he has.

Which was conceded by the court.

80 BEAULIEU V. FINGLAM. fCHAP. II.

Hornby. Then he ought to have had a writ Qunre domum suam
ardebat vel exarsit.

Hull. That will be contrary to all reason to put blame or fault on a
man where he does not have any on him, for negligence of his servants
cannot be called his feasance.

Thirning [C. J.]. If a man kills or siaj's a man through misfortune,
he shall forfeit his goods, and it is proper that he should have his char-
ter of pardon of grace.

To which the court agrees.

Markham [J.]. I shall answer to my neighbor for another who
enters m^- house, with my leave or my knowledge, or is a guest through
me or through my servant, if he does, or any one of them does, such
a thing, as with a candle or other thing, by which feasance the house
of m}' neighbor is burned ; but if a man from outside my house, against
my will, puts the fire in the straw of my house, or elsewhere, by which
my house is burned, and also the houses of m}- neighbors are burned,
for this I shall not be held to answer to them, etc., for this cannot be
said to be through wrong on my part, but against my will.

Hornby. This defendant is ruined and impoverished forever if this
action be maintained against him, for then twenty other such suits will
be brought against him of like matter.

Thirning [C.J.]. What is that to us? It is better that he should
be wholly undone than that the law should be changed for him.

And afterwards the}' were at issue that the house of the plaintitf
was not burned through the fire of the defendant, ready ; and the other
side said the contrary.

Doctor and Student, Dialogue I., Chapter IX. (1518) : i —
The law of England is, that if a man command another to do a tres-
pass, and he doth it, that the commander is a trespasser. And I am
in doubt, whether that it be only by a maxim of the law, or that it be
b}' the law of reason. . . .

Doctor and Student, Dialogue II., Chapter XLTI. (1518): ' —

. . . And now I intend to show thee some particular cases, where
the master after the laws of the realm shall be charged by the act of
his servant, bailiff, or deput}-, and where not. . . .

First, for trespass of battery, or wrongful entry into lands or tene-
ments, ne yet for felony or murther, the master shall not be charged
for his servant, unless he did it by his commandment.

Also, if a servant borrow money in his master's name, the master

1 From the eighteenth edition, p. 32. — Ed.

2 From the eighteenth edition, pp. 236-2.38. The previous parts of the same chap
tftr treat of a public officer's responsibility for the acts and defaults of his deputy.
— Ed.

SECT. I.] DOCTOR AND STUDENT. 81

shall not be charged with it unless it come to his use, and that by his
assent. And tlie same law is, if a servant make a contract in his
master's name, the contract shall not bind his master, unless it were by
his master's commandment, or that it came to the master's use by his
assent. But if a man sends his servant to a fair or market to bu^- for
him certain things, though he command him not to bu}' them of no
man in certain, and the servant doth according, the master shall be
charged : but if the servant in that case buy them in his own name,
not speaking of his master, the master shall not be charged, unless the
things bought come to his use.

Also, if a man send his servant to the market with a thing which he
knoweth to be defective, to be sold to a certain man, and he selkth it
to him, there an action lieth against the master : but if the master bid-
deth him not to sell it to an}' person in certain, but generally to whom
he can, and he selleth it according, there lieth no action of disceit
against the master.

Also, if the servant keep the master's fire negligently, whereby his
master's house is burnt, and his neighbor's also, there an action lieth
against the master. But if the servant bear fire negligentl}' in the
street, and thereby the house of another is burned, there lieth no ac-
tion against the master. . . .

Also, if a man make another his general receiver, and that receiver
receiveth money of a creditor of his master, and maketh him acquit-
tance, and after payeth not his master ; yet that payment dischargeth
the creditor : but if the creditor hath taken an acquittance of him
without paying him his money, that acquittance onh* were no bar to
the master, unless he made him receiver by writing, and gave him au-
thority to make acquittances, and then the authorit}' must be shewed.
And if the creditor in such case, b}' agreement between the receiver
and him, delivered to the receiver an horse, or another thing in recom-
pence of the debt, that deliver}- dischargeth not the creditor, unless it
be delivered over unto the master, and he agree to it. For the receiver
bath no such power to make no such commutation, but his master give
bim special commandment thereto.

Also, if a servant shew a creditor of his master, that his master sent
him for his money, and he payeth it unto him ; that payment discharg-
eth him not, if the master did not send him for it indeed, except that
it came after unto the use of the master by his assent.^ . . .

1 The early reports, statutes, and text-books afford ample material for testing the
accuracy of Doctor and Student's presentation of the early law as to a principal's re-
eponsibility for his agent's acts. Authorities useful for this purpose are : Mortimer's
Case, Bigelow's Placita Anglo-Normannica, 59 (temp. W. I. ); Abbot of Abingdon v.
Anskill, id. 62 (1088-1089); Jurnet v. Church of St. Edmund, id. 223 (1176); Bos-
tard V. Duket, Bractou's Note Book, pi. 873 (1232); Statute of Westminster II., 13
Ed. I., Stat. 1, c. 11, § 10 (1285) ; Anonymous, Y. B. 35 Ed. I. (Rolls ed.) 567 (1307)
Statute of the Staple, 27 Ed. III., Stat. 2, c. 19, § 1 (1353) ; W.'s Ca.se, Y. B. 27 Ass.
pi. 5, fo. 133 (1354) ; J. II.'s Case, Fitzherbert's Abridgment, Dette, pi. 3 (1378) ; s. c
Bellewe's Cas. temp. Rich. II. 136; Anonvmous, Y. B. 9 H VI. 53 b, pi. 37 (1430J;

82 BOSON V. SANDFORD. [CHAP, IL

MICHAEL V. ALESTREE.
King's Bench. 1676.

[2 Levinz, 172.] w

Case, for that the defendants in Lincoln's-Inn-Fields, a place where
people are always going to and fro about their business, brought a
coach with two ungovernable horses, and eux improvide incuNte et
absque debita consideratio7ie ineptiti(di?iis loci there drove them to make
them tractable and fit them for a coach ; and the horses, because of
their ferocity being not to be managed, ran upon the plaintitf, and
hurt and grievously wounded him. The master was absent, yet the
action was brought against him as well as his servant, and both found
guilt}'. And now 't was moved in arrest of judgment, that no sciens is
here laid of the horses being unrul}', nor any negligence alleged, but
e contra, that the horses were ungovernable : yet judgment was given
for the plaintiff, for 't is alleged that it was improvide et absque
debita consider ati one ineptitiidinis loci ; and it shall be intended the
master sent the servant to train the horses there. ^

BOSON V. SANDFORD et al.
King's Bench. 1690.

[2 Salk. 440.-2]

Case against A. and B., part-owners of a ship, for that he put goods
on board, and the defendants undertook to carry them safely for hire,

Pigot's argument in the Duchess of Suffolk's Case, Y. B. 8 Ed. IV. 11-11 b (1468) ;
Anonymous, Y. B. 11 Ed. IV. 6, pi. 10 (1471) ; Anonymous, Y. B. 13 H. VII. 15 b, pi.
10 (1497-8); Fitzherbert's Natura Brevium, 120 G (1534); Seaman and Browning's
Case, 4 Leon. 123 (1589) ; Waltham v. Mulger, Moore, 776 (1605) ; Southern v. How,
Popham, 143 (1618) ;* s. c. Cro. Jac. 468, 2 Rolle's Reports, 5, 26; Seignior v. Wolmer,
Godbolt, 360 (1623); Kingston v. Booth, Skinner, 228 (1684-5). — Ed.

1 Per curiam, s. C. sub nom. Michell v. Allestry, 3 Keble, 650 : "It's at peril of the
owner to take strength enough to order them, and the master is as liable as the
servant if he gave order for it, and the action is generally for bringing them thither,
which is intended personal."

Per curiam, s. c. sub nom. Michil v. Alestree, 1 Ventris, 295: "It was the de-
fendant's fault, to bring a wild horse into such a place where mischief might prob-
ably be done, by reason of the concourse of people. Lately, in this court an action
was broiight against a butcher, who had made an ox run from his stall and gored the
plaintiff ; and this was alleged in the declaration to be in default of penning of him."
And per Wylde, J. : " If a man hath an unruly horse in his stable, and leaves open
the stable door, whereby the horse goes forth and does mischief, an action lies against
the master." — Ed.

2 s. c. Skinner, 278; Comberbach, 116; 1 Shower, 29; 3 Mod. 321; Carthew, 58;
3 Levinz, 258. —Ed.

SECT. I.] WAYLAND'S CASE. 83

but 3et were so negligent that the goods were spoiled. Upon not
guilty pleaded, in evidence it apj^eared that C. and D, were also part-
owners, and that the ship was under the care of a master, to whom the
goods were delivered ; and this being found specially, it was argued
pro quer., that the action is grounded on the wrong, and may be
against all or any of the proprietors. There was also another doubt
started, and that was, whether the owners were liable, when in tiuth
they did not undertake, but in fact the master sujyer se suscepitf P]tre,
Justice, held there was no difference between a land-carrier and a
water-carrier, and that the master of a ship was no more than a
servant to the owners in the eye of the law ; and that the power he has
of hypothecation, etc., is by the civil law. Ft /)er Holt, C. J. The
owners are liable in respect of the freight, and as employing the
master; for whoever employs another is answerable for him, and
undertakes for his care to all that make use of him. 2dly, the court
held that all owners were liable, for they are charged, in point of
contract, as employers, and are all equall}- entitled to the freiglit.
Either master or owners may bring an action for the freight ; but if the
owners bring the action, they must all join ; erffo the}' must all be joined ;
as the freight belongs to all, so all are equally undertaking ; and a
breach of trust in one is a breach of trust in all ; as where two make
one officer, the act of one is the act of the other. Sdl}', the court held
this was not an action ex delicto, but ex quasi conti'actu, and it was not
the contract of one but of all ; that there was no other tort but a breach
of trust. Therefore the court gave judgment for the defendant, because
all the owners were not joined.^

SIR ROBERT WAYLAND'S CASE.
Nisi Prius. 1690.

[3 Salk. 234.-]

He used to give bis servant money eveiy Saturda}' to defray the
charges of the foregoing week, the servant kept the monej', yet per
Holt, C. J., the master is chargeable, for the master at his peril
ought to take cai-e what servants he employs ; and 'tis more reasonable,
that he should suffer for the cheats of his servant than strangers and
tradesmen ; so if a smith's man pricks my horse, the master is liable.

1 Compare Boucher v. Lawson, Lee's Cas. temp. Hardwicke, 85, 194 (1735-6). — En

2 8.0. 1 Shower, 95. — Ed.

84 TURBERVILLE V. STAMPE. [CHAP. II.

BOULTON V. ARLSDEN.
Nisi Pkius, Holt, C. J. 1697.

[3 Sulk. 234.]

In this case it was held, that where a servant usually buys for his
master upon tick, and takes up things in his master's name, but for his
own use, that the master is liable, but 't is not so where the master
usually gave him ready money.

That where the master gives the servant money to buy goods for
him, and he converts the mone}' to his own use, and buys the goods
upon tick, yet the master is liable, so as the goods come to his use,
otherwise not.

That a note under the hand of an apprentice shall bind his master,
where he is allowed to deliver out notes, tho' the money is never
applied to the master's use.

But where he is not allowed or accustomed to deliver out notes,
there his note shall not bind the master, unless the money is applied to
the master's use.

TURBERVILLE v. STAMPE.
King's Bench. 1697.

[1 Ld. Raym. 264.1]

Case grounded upon the common custom of the realm for negligently
keeping his fire. The plaintiff declares that he was possessed of a
close of heath, and that the defendant had another close of heath
adjoining ; that the defendant tarn improvide et negligenter custodivit
ignem suum that it consumed the heath of the plaintiff. Not guilty
pleaded. Verdict for the plaintiff. And Gpxdd, king's serjeant, moved
in arrest of judgment that this action ought not to be grounded upon
the common custom of the realm ; for this fire in the field cannot be
called ignis sims, for a man has no power over a fire in the field, as he
has over a fire in his house. And therefore this resembles the case of
an innkeeper, who must answer for an}' ill that happens to the goods
of his guest, so long as they are in his house ; but he is not answerable,
if a horse be stolen out of his close. And in fact in this case the
defendant's servant kindled this fire by way of husbandry, and a wind
and tempest arose, and drove it into his neighbour's field ; so that it
was not any neglect in the defendant, but the act of God. Sed non

1 s. c. Comberbach, 459 ; Skinner, 681 ; Carthew, 425 ; Comyns, 32 ; 1 Salk. 13 ;
12 Mod. 151 ; Holt, 9. The pleadings are given in 3 Ld. Raym. 250. — Ed.

SECT. I.] TURBEKVILLE V. STAMPE. 85

allocatur. For, per curiam, as to the matter of the tempest, that ap-
peared only upon the evidence, and not upon the record, and therefore
the King's Bench cannot take notice of it, but it was good evidence to
excuse the defendant at the trial. Then as to the other matter, per
Holt, Chief Justice, Kokeby and EyuE, Justices, a man ought to keep
the fire in his field as well from the doing of damage to his neighbour,
as if it were in his house, and it may be as well called suus, the one as
the other ; for the property of the materials makes the property' of the
fire. And therefore this action is well grounded upon the common
custom of the realm. But Tukton, Justice, said that these actions
grounded upon the common custom had been extended ver}* far. And
therefore (by him) the plaintiff might have case for the special damage,
but not grounded upon the general custom of the realm. But by the
other justices judgment was given for the plaintiff. Note Mr. Northey
for the plaintiff cited 40 Assis. pi. 9 ; Htz. issue 88, double pica, 31 ;
28 Hen. 6, 37; 21 Hen. 6, 11, b. Rast. Entr. 8, and Old Entr. 219,
where the declaration is general for negligently keeping his fire in such
a parish, without specifying a particular house or ground. But Holt,
Chief Justice, answered that that -was an antiquated entry. And (b\-
him) if a stranger set fire to my house, and it burns my neighbour's
house, no action will lie against me ; which all the other justices
agreed. But if my servant throws dirt into the highway, I am indict-
able. So in this case, if the defendant's servant kindled the fire in the
way of husbandry and proper for his employment, though he had no
express command of his master, yet his master shall be liable to an
action for damage done to another by the fire ; for it shall be intended
that the servant had authority from his master, it being for his master's
benefit.^

^ Skinner, 681, s. c. : " It was moved in arrest of judgment, that it does not appear
in this case to be done by the command of the master; and then it being out of his
house, he is not responsible, 2 H. 4, 24, for if tlie servant does it without the command
of the master, it is not the negligence of the master ; but it was answered, that it
being after a verdict, be it by negligence or by misfortune, it is all one ; for now they
are upon the record, and it may be his fire in a field, as well as in a house ; and it was
matter of evidence if it be his fire or not."

Comberbach, 459, s. c. : " Holt, C. J. . . . And tho' I am not bound by the act
of a stranger in any case, yet if my servant doth any thing prejudicial to another, it
shall bind me, where it may be presumed that he acts by my authority, being about
my business." — Ed.

86 JONES V. HART. [CHAP. II.

MIDDLETON v. FOWLER.
Nisi Prius. 1698.

[1 Sulk. 282. J

An action upon the case upon the custom of the realm was brought
against the defendants being masters of a stage-coach ; and the plain-
tiff set forth that he took a place in the coach for such a town, and
that in the journey the defendants by their negligence lost a trunk of
the plaintiff's. Upon not guilt}' pleaded, upon the evidence it appeared
that this trunk was delivered to the person that drove the coach, and
he promised to take care of it, and that the trunk was lost out of the
coachman's possession ; and if the master was chargeable with this
action, was the question. Holt, C. J., was of opinion that this action
did not lie against the master, and that a stage-coachman was not
within the custom as a carrier is, unless such as take a distinct price
for carriage of goods as well as persons, as wagons with coaches ; and
though mone}- be given to the driver, j'et that is a gratuit}', and cannot
bring the master within the custom ; for no master is chargeable with
the acts of his servant but when he acts in execution of the authority
given b}' his master, and then the act of the servant is the act of the
master ; and the plaintiff was nonsuited.

JONES V. HART.
Nisi Prius. 1698.

[2 SalJc. 441.]

A pawn-broker's servant took a pawn ; the pawner came and ten-
dered the mone}' to the servant ; he said he had lost the goods. Upon
this the pawner brought trover against the master, and it was held
well, per Holt, C. J.

The servants of A. with his cart run against another cart, wherein
was a pipe of sack, and overturned the cart, and spoiled the sack ; an
action lies against A. So where a carter's sen^ant run his cart over a
bo}', it was held the boy should have his action against the master for
the damage he sustained by this negligence. So in Lane and Cotton,^
a letter with bills in it was delivered at the post-office to a servant ; it
was held, case lay against the post-master and not against the servant,
unless he stole them, for then he was a wrong-doer, as where a gaoler
suffers an escape wilfully; otherwise, if negligently. Per Holt, C. J.'

> The contrary was ruled to what is here stated. Vide the case, 1 Salk. 17. — Rep
2 Holt, 646, s. c. : " Holt, C. J. . . . And so it is if a smith's man pricks a horse

SECT, l] ward V. EVANS. 87

ANONYMOUS.

Nisi Pejus. 1701.

[12 Mod. 514.]

Per Holt, C. J. Ever}- factor of common right is to sell for ready
mone}'. But if he be a factor in a sort of dealing or trade where the
usage is for factors to sell on trust, there, if he sell to a person of good
credit at that time, and he afterwards becomes insolvent, the factor is
discharged ; but otherwise if it be to a man notoriously discredited at
the time of tlie sale. But if there be no such usage, and he, upon the
general authority to sell, sells upon trust, let the vendee be ever so
able, the factor is only chargeable ; for in that case, the factor having
gone bej'ond his authority, there is no contract created between the
vendee and the factor's principal ; and such sale is a conversion in
the factor ; and if it be not in market-overt, no propertj- is thereby
altered, but trover will also lie against vendee : so likewise if it be in a
market-overt, and the vendee knows the factor to sell as factor.

WARD V. EVANS.
Queen's Bench. 1702-3.

[2 SalL 442.1]

"Ward sent his servant to receive a note of £50 of B., who went with
him to Sir Stephen Evans's shop, who indorsed off £50 from a note B.
had upon him, and gave Ward's servant a note of £50 upon one Wallis,
a goldsmith, to whom the note was carried the next da}- by Ward's
servant ; Wallis refused to pay, and that da}- broke ; upon this the
note was sent back to Sir Stephen P^vans, who refused payment, where-
upon the action was brought. Et per Cur. it was held, 1st, that this
was money received by Sir Stephen Evans ; 2dly, that the act of a ser-
vant shall not bind the master unless lie acts by authority of his master ;
and therefore if a master sends his servant to receive money, and the
servant, instead of money, takes a bill, and the master, as soon as
told thereof, disagrees, he is not bound by this payment; but acqui-,
escence, or any small matter, will be proof of the master's consent,
tnd that will make the act of the servant the act of the master.

3dly, They held this was no payment; for a goldsmith's note is
/)nly paper, and received conditionally, if paid ; and not otherwise,
♦vithout an express agreement to be taken as cash.

to shoeing, the master is liable. For whoever employs another is answerable for him,
4n(l undertakes for his care to all that make use of him. The act of a servant is the
tct of his master, where he acts by authority of the master." — Ed.

1 R. c. 3 Salk. 118 ; 6 Mod. 36; 12 id. 521 ; 2 Ld. Raym. 928 ; Comyns, 138. — Ed.

88 THOROLD V. SMITH. ^ [CHAP. II.

4tbly, they held that the party receiving such note should have a
reasonable time to receive the money, as in this case the next day,
and is not obliged, as soon as he receives it, to go straight for his
money.

THOROLD V. SMITH.

Queen's Bench. 1706.

[11 Mod. 71, 87.]

The defendant being indebted to Sir Charles Thorold in a hundred
pounds, Sir Charles sent his servant to receive the money. The ser-
vant took the goldsmith's note upon one Johnson, and thereupon gave
a receipt to Smith. Johnson broke within a week after.

The question was, whether this was a good payment to Sir Charles ;
or, whether the servant had pursued his authority in taking a note in
lieu of money, and had a power to give a receipt to discharge the debt
without receiving the money.

Holt, C. J. A bill is no payment ; ^ but if a man will give a re-
ceipt, he by that accepts the bill as money and payment ; and therefore
upon the receipt this case turns.

The principal objection from the Bar was, that the defendant had
not authority to receive anything but money, and consequently could
not discharge the debt upon receiving the bill.

Powell, J., said. Sir Charles Thorold should have sent his man
back again the same day to have dissented, else it is a presumption
that his master was acquainted with, and acquiesced in, what he had
done ; and this might have altered the case.

To which the court agreed ; and said. Sir Stephen Evans's case dif-
fered from this case, for Sir Stephen Evans became a receiver to the use
of Ward. If a man give a note to another upon a banker, and no re-
ceipt, it is usual to have three days as a convenient time to receive
it ; and if the banker break in that time, it will be no payment.

Adjournatur.

Darnell, Serjeant. A receipt shall not be a good discharge, where
a servant had not a special authorit}' to give a receipt.^ Suppose a
servant give a receipt, and do not receive the money, shall this bind
the master? So if he take any collateral security', as a bond.

1 By 3 & 4 Anne, c. 9, § 7, " If any person accept a bill of exchange for and in
satisfaction of any former debt or sum of money formerly due to him, it shall be ac-
counted and esteemed a full and complete payment of such debt, if such person accept-
ing of any such bill for his debt do not take his due course to obtain payment of it,
by endeavoring to get the same accepted and paid, and make his protest, according to
the directions of the act, either for non-acceptance or non-payment." See Murdal v,
Clarke, 1 Salk. 124; Kyd on Bills of Exchange, 111. — Bep.

" Year-Book, 10 Hen. VII. pi. 9; 4 Hen. VI. pi. 1 ; 40 Assize, 38. — Rep.

SECT. I.] THOROLD V. SMITH. 89

Jfr. Eyres. The question is, if a servant is sent by his roaster for
mone}', and receive anything else in lieu of monej-, whether this is
a pursuance of his authority. It did not appear in this case that Sir
Cliarles Tiiorold had any notice of the receipt of the bills, nor of
Jolnison's breaking ; but the servant sent the note back upon hearing
of Johnson's breaking, A servant sent by his roaster to receive rooney
cannot release or discharge his roaster's debt without receiving the
mone}' ; for a receiver has no power to make any commutation without
a special authority.^

AV> James Mountague, ccmtra. The authorities cited from the old
books will not weigh much in this case ; for the way of trade and
commerce is of a quite different nature now.

Holt, C. J. A bill of exchange or goldsmith's note is not payment,
unless the part}' omits receiving of it in a reasonable time, as three
days, when he might have received it ; but if he give a receipt and
accept the note as payment, this shall bind him. In this case Sii
Charles himself gave no receipt, but the servant. Where a man hag
authority to receive money, he cannot receive anything else. It is
common practice, if a man receive a goldsmith's note, and give a re-
ceipt, it is purchasing the bill. In this case it must be understood,
according to the course of the world and trade, that this servant had
a general authority' to do what his master would have done ; this case
differs much from the case of a servant or attorney to one particular
purpose, but this is in nature of a factor, etc.

Powell, J. No modern practice will alter the old law. The part}'
himself ma}' give a receipt, but a general receiver cannot receive any-
thing else. His own acquittance would stop hiro, but his servant's
receipt will not. In this case the servant was sent to receive money :
this servant, he supposed, had many times received bills for his mas-
ter, and this is an authority to this purpose ; but this indeed was proper
matter of evidence, being the constant practice of the world ; and had
this not been. Sir Charles would have asked his servant what he had
done ; and when he had told liim he had received such a note, it is a
strong presumption his master approved of it, or else, it is to be pre-
sumed, he would have sent it back again.

Holt, C. J., thought this was more matter of evidence than law ;
and any jury at Guildhall would find payment by a bill to be a good
payment, it being the common practice of the city. And he proposed
a new trial, whether the servant had power to receive a bill, and give
a receipt ; which was agreed to.

Holt, C. J. In this case, the receipt of a servant that has power
is the receipt of the master.

1 Doctor and Student, 138 b. — Rep.

90 MCKSON V. BROHAN. [CHAP. IL

HERN V. NICHOLS.

Nisi Prius. 1708.

[1 Salk. 289.]

In an action on the case for a deceit, the plaintiff set forth that he

bought several parcels of silk for silk, whereas it was another

kind of silk ; and that the defendant, well knowing this deceit, sold it

him for silk. On trial, upon not guilty, it appeared that there

was no actual deceit in the defendant who was the merchant, but that
it was in his factor beyond sea ; and the doubt was, if this deceit could
charge the merchant? And Holt, C. J., was of opinion, that the mer-
chant was answerable for the deceit of his factor, though not crimi-
naliter, yet civiliter ; for seeing somebody must be a loser bj' this
deceit, it is more reason that he that employs and puts a trust and
confidence in the deceiver should be a loser, than a stranger. And
upon this opinion the plaintiff had a verdict.

NICKSON V. BROHAN.
Queen's Bench. 1712.
[10 Mod. 109.]

A MASTER sent his servant, who was used to transact affairs of that
nature for him, on Saturday morning, with a note drawn upon Sir
Stephen Evans, with orders to get from Sir Stephen either bank bills
or money, and turn them into exchequer notes ; but the servant having
other business of his master's upon his hands, to save himself the time
and trouble of going to Sir Stephen, went to B. and prevailed with him
to give him a bank bill for the note upon Sir Stephen ; and then, in
pursuance of his master's orders, invested it in exchequer notes, which
he brought to his master, not letting him know but that he had gone
to Sir Stephen. Sir Stephen Evans failed upon the Monday following.

The question was, upon whom this loss should light, B. or the
master.

Parker, Chief Justice, who tried the cause, was first of opinion that
it should fall upon B. , because the servant acted directly contrary to
his master's orders, and B., by furnishing the servant with a bank bill,
did the master no service at all ; for if he had not done it, the servant
must, in obedience to his master's orders, have gone and received him-
self the money from Sir Stephen ; and cited the case of Ward v. Evans,
where it was resolved that if a servant, sent to receive money, takes

SECT. I.] NICKSON V. BROHAN. 91

a bill in lieu of it, the master is not bound b}' the act of the servant,
unless the bill is answered.

J5ut one of the jury informing him that he took the practice to be
otherwise (for that whether a servant, used to act upon the credit of his
master, went against the orders of the master, was a fact that could
not be known to a third person), he quitted his opinion ; but directed
the counsel to move the Court of King's Bench, which was accordingly
done.

The substance of what was said upon the motion in favor of the
master was, that the servant going contrary to his orders, and there
being no subsequent consent of the muster, who knew nothing of the
matter, the act of the servant should not bind the master, according
to the cases of Ward v. Evans, Hanky v. Watts, and Thorold v. Smith.
A master commands his servant to sell his horse, the servant sells him
as a good one, no action against the master.

But the court were all of opinion that the verdict was well given,
and that the master was chargeable, and he onl}- ; for a servant, by
transacting affairs for his master, does therebj* derive a general au-
thority and credit from him ; and if this general authority' should be
liable to be determined for a time b}- an}- particular instructions or
orders, to which none but the master and servant are priv}-, there
would be an end of all dealing but with the master. The master has
put himself in the power of the servant b\- trusting him with the bill.
The case of Monk v. Cla3'ton^ was where the act of a servant, though
out of place, bound his master, b\- reason of the former credit given
him by his master's service, the other not knowing that he was dis-
charged. And as for the cases put, there was this main difference
between them, that nothing came to the master's use ; as here the notes
did. In some of those cases there was a prior debt, but none here. It
was agreed by the court that the property of the note was not trans-
ferred and vested in B., but was only in nature of a clepositum or secu-
rity to him, for there is no indorsement; nor could he have sued upon
the bill ; and though practice cannot alter the law, yet it ma}' explain
an agreement. They were likewise of opinion that the master could
not recover it of the servant, the loss being occasioned b\- a mere acci-
dent, and not either folh* or negligence. If a master frequenth' send
a servant to market without read}' money, so that the servant is
trusted upon the master's account, — if, in such a case, the servant
embezzles the mone}' when he is sent with it, and buy upon trust, the
master is chargeable ; but not if he always is sent with ready money.

1 M0II07, de Jure Maritimo (ed. 1676) 270. — Rep.

92 ANONYMOUS. [CHAP. IL

ARMORY V. DELAMIRTE.
Nisi Prids, Pratt, C. J. 1721-2.

[1 Str. 505.]

The plaintiff, being a chimne3'-sweeper's boy, found a jewel and car-
ried it to the defendant's shop (who was a goldsmith) to know what it
was, and delivered it into the hands of the apprentice, who under pre-
tence of weighing it, took out the stones, and calling to the master to
let him know, it came to three halfpence ; the master offered the boy
the money, who refused to take it, and insisted to have the thing again ;
whereupon the apprentice delivered him back the socket without the
stones. And now in trover against the master these points were
ruled : —

1. That the finder of a jewel, though he does not by such finding
acquire an absolute property' or ownership, yet he has such a property
as will enable him to keep it against all but the rightful owner, and
consequentl}' may maintain trover.

2. That the action well lay against the master, who gives a credit to
his apprentice, and is answerable for his neglect.

3. As to the value of the jewel, several of the trade were examined
to prove what a jewel of the finest water that would fit the socket would
be worth ; and the Chief Justice directed the jury, that unless the
defendant did produce the jewel, and show it not to be of the finest
water, they should presume the strongest against him, and make the
value of the best jewels the measure of their damages, which they
accordingly did.^

ANONYMOUS.
Nisi Prius, Pratt, C. J. 1722.

[1 Str. 527.]

The Chief Justice allowed the wife's declaration, that she agreed to
paj' 4s. per week for nursing a child, was good evidence to charge the
husband ; this being a matter usually transacted by the women.

' Ace: Mead v. Hamond, 1 Str. 505 (1721-2). And see Gary v. Webster, I Star-
480(1721).— Ed.

SECT. I.] BLACKSTONE'S COMMENTARIES. 93

GRAMMAR v. NIXON.
Nisi Prius, Eyre, C. J. 1725.

[1 Str. 653.]

A goldsmith's apprentice sold an ingot of gold and silver upon a
special warranty that it was of the same value per ounce with an essay
then shown. Upon the evidence it appeared he had forged the essay,
and that the ingot was made out of a lodger's plate, which he had
stolen. And the Chief Justice held the master was answerable in this
case.

Strange, jjro def\

Blackstone's Commentaries, I., 425-427, 429-432 (1765) : —

1. The first sort of servants, therefore, acknowledged by the laws
of England, are menial servants ; so called from being intra moenia, or
domestics. The contract between them and their masters arises upon
the hiring. . . .

2. Another species of servants are called apprentices (from ap-
prendre, to learn), and are usually' bound for a term of 3ears, b}' deed
indented or indentures, to serve their masters, and be maintained and
instructed b}- them. . . .

3. A third species of servants are labourers, who are only hired b}'
the day or the week, and do not live i)itra mocnia, as part of the
family. . . .

4. There is yet a fourth species of servants, if thej' ma}- be so
called, being rather in a superior, a ministerial, capacity ; such as
steioards, factors, Siud bailiffs: whom, however, the law considers as
servants pro tempore, with regard to such of their acts as affect their
master's or employer's property'. . . .

As for those things which a servant ma}' do on behalf of his master,
the}- seem all to proceed upon this principle, that the master is answer-
able for the act of his servant, if done by his command, either expressly
given or implied : nam qui facit per alium, facit per se. Therefore, if
the servant commit a trespass by the command or encouragement of
his master, the master shall be guilty of it : though the servant is not
thereby excused, for he is only to obey his master in matters that are
honest and lawful. If an innkeeper's servants rob his guests, the
master is bound to restitution : for as there is a confidence reposed in
him, that he will take care to provide honest servants, his negligence
is a kind of implied consent to the robbery ; nam qui non prohibet, cum
prohibere possit, jtibet. So likewise if the drawer at a tavern sells a
man bad wine, whereby his health is injured, he may bring action
against the master : for although the master did not expressly order the

94 blackstone's commentaries. [chap. II.

servan^j to sell it to that person in particular, yet his permitting him
to draw and sell it at all is impliedlj' a general command.

In the same manner, whatever a servant is permitted to do in the
usual course of his business, is equivalent to a general command. If
I pay money to a banker's servant, the banker is answerable for it :
if I pay it to a clergyman's or a physician's servant, whose usual busi-
ness it is not to receive money for his master, and he embezzles it, I
must pay it over again. If a steward lets a lease of a farm, without
the owner's knowledge, the owner must stand to the bargain ; for this
is the steward's business. A wife, a friend, a relation, that use to
transact business for a man, are quoad hoc his servants ; and the princi-
pal must answer for their conduct : for the law implies that they act
under a general command ; and without such a doctrine as this no
mutual intercourse between man and man could subsist with any toler-
able convenience. If I usual!}' deal with a tradesman by myself, or
constantl}' pay him read}' money, I am not answerable for what my
servant takes up upon trust ; for here is no implied order to the trades-
man to trust mj' servant ; but if I usually send him upon trust, or
sometimes on trust and sometimes with ready mone^', I am answerable
for all he takes up ; for the tradesman cannot possibly' distinguish when
he comes b}' my order, and when upon his own authority.

If a servant, lastly, by his negligence does any damage to a stranger,
the master shall answer for his neglect : if a smith's servant lames a
horse while he is shoeing him, an action lies against the master, and
not against the servant.-^ But in these cases the damage must be
done while he is actually employed in the master's service ; otherwise
the servant shall answer for his own misbehaviour. Upon this principle,
by the common law, if a servant kept his master's fire negligently, so
that his neighbour's house was burned down thereby, an action lay
against the master ; because this negligence happened in his service ;
otherwise, if the servant, going along the street with a torch, by
negligence sets fire to a house; for there he is not in his master's
Immediate service ; and must himself answer the damage personally.
But now the common law is, in the former case, altered by statute 6
Ann. c. 3, which ordains that no action shall be maintained against
any, in whose house or chamber any fire shall accidentall}' begin ; for
their own loss is sufficient punishment for their own or their servant's
carelessness. . . .^

1 " This is, of course, not law to day, and probably was not law when written. Black-
stone simply repeated the doctrine of the Year Books. The servant had not expressly
assumed to shoe carefully. . . . This primitive notion of legal liability has, of course,
entirely disappeared from the law. An assumpsit is no longer an essential allegation
in these actions of tort, and there is, therefore, little or no semblance of analogy
between these actions and actions of contract." Professor J. B. Ames, " The History
of Assumpsit," 2 Harv. L. Rev. 1, 4. — Ed.

'■^ " Blackstone . . . misunderstood ' accidentally ' to include ' negligently ' in these
statutes. This was corrected by Philliter v. Phippard, 11 Q, B. 347 (1843)." Pro-
fessor J. H. Wigmore, " Responsibility for Tortious Acts," 7 Harv. L. Rev. 441, 449,
n. (6). — Ed.

SECT. II.] BRUCKER V. FROMONT. 95

We may observe, that in all the cases here put, the master ma^ be
frequently a loser by the trust reposed in his servant, but never can be
a gainer; he may frequently be answerable for his servant's misbe-
haviour, but never can shelter himself from punishment by laying the
blame on his agent. The reason of this is still uniform and the same ;
that the wrong done by the servant is looked upon in law as the wron<^
of the master himself; and it is a standing maxim, that no man shall be
allowed to make any advantage of his own wrong. ^

SECTION n.

Torts.^

BRUCKER V. FROMONT.

King's Bench. 1796.

[6 T. R. 659.]

The plaintiff declared against the defendant for that he on such a
day was driving a cart and horse along the king's highway, and that
he so carelessly-, negligently, and improvidently guided, drove, and di-
rected the same that the cart for want of due care and caution of the
defendant in that behalf was violently forced and driven and run against
the plaintiff's horse then passing and drawing the plaintiff's chariot
along the said highway, whereby the shaft of the defendant's cart was
forced into the body of the plaintiff's horse and killed it.

The fact was that the defendant's servant was driving the cart at
the time when the accident happened, and the defendant himself was
not present. Whereupon it was objected b}' the defendant's counsel at
the trial that the action was misconceived, as it ought to have stated, not
that the defendant himself had done the act, but that it had been done
bj' the act of his servant ; and jMr. Baron Thomson before whom it
was tried at the last assizes for Berkshire, nonsuited the plaintiff. A

1 For a full statement and discussion of the authorities that show the history of the
principal's responsibility for his agent's torts, see Professor J. H. Wigmore's articles
on Kesponsihility for Tortious Acts, in 7 Harv. L. Eev. 315, .383, 441. For historical
matter as to both contracts and torts, see 2 Pollock and iMaitland's History of English
Law, 225-227, 526-532, and Mr. Justice Holmes' articles on Agency in 4 Harv. L.
Rev. 345, and 5 id. 1. — Ed.

2 In addition to cases on the torts of persons who are confessedly servants, this
section presents cases on the distinction between servants and independent contractora
Cases on fellow-servants are found in Chapter VI. — Ed.

96 BRUCKER V. FROMONT. [CHAP. II.

rule having been obtained to show cause why the nonsuit should not be
set aside, and a new trial granted,

Plumer and Milles showed cause ; contending that the master was
not liable for the act of his servant under this general form of declar-
ing, which was not conformable to the generality of precedents, nor
warranted by any express decision. Mr. Justice Blackstone, 1 Com.
429, &c., states the liability of masters for the acts of their servants on
three distinct grounds : first, where the servant acts by the master's
express command, in which case the act of the servant is considered
as the act of the master, on the principle of quifacitper alium facit per
se ; and the person injured may declare against the latter as for his
own act. Secondl}^, where the servant is acting in the usual course of
his master's business at the time of the act complained of; in which
case the law implies that it was done by the master's consent ; and he
is liable in the same manner as in the former instance. Thirdly, where
by his own negligence or wilfulness the servant does an injury to an-
other while in his master's employment ; here, although the master is
still liable, yet that liability arises, not from any implied command or
consent of the master to the wrongful act of his servant, but from the
legal relation subsisting between them by virtue of which the former is
answerable for the default of the latter. In such cases, therefore, the
act itself not being imputable to the master, but only the consequences
arising from the relation in which he stands, the party injured ought
by his declaration to allege the fact trulj', and refer the act to the
servant who did it, deducing the master's liability from such relation ;
and the more so in order that the court may see upon the face of the
record that the act imputed is such for which by law the master is
answerable. For it is not every wrongful act of a servant for which the
master is compellable to make satisfaction ; but it must appear to be
such as happened within the scope of his employ. But if this general
mode of declaring be deemed sufficient, the master will be precluded
from moving in arrest of judgment, or taking the opinion of a court
of error. The only cases referred to in support of the action were,
first, Michael v. Alestree and another, 2 Lev. 172, where an. action
Was brought against the master and servant for an injury done to the
plaintiff by the servant in exercising his master's horses, which were
unruly, in Lincoln's-Inn-Fields. The act there is indeed laid to have
been done by both, though the master was absent ; 3'et the ground of
the judgment was, that it should be intended that the master sent the
servant there to train the horses. The injury is stated to have arisen
from the ferocity and ungovernable nature of the horses, which were
driven there to be rendered tractable. And if the master directed
the servant to train the horses in an improper place, and in so doing the
injury happened, the declaration was well adapted to the truth of the
case on the principles before laid down. The other case is that of
Turberville v. Stampe, 1 Ld. Raym. 264 ; 3 Ld. Raym. 375 ; Skin. 681
Carth. 425 ; Salk. 13 S. C, where the plaintiff declared upon the cus-

SECT. II.] BRUCKER V. FROMONT. 97

torn of the realm against the defendant for so negligently keeping his
fire that it consumed tlie plaintiff's heath ; it only appears argueyalo
that the fire was made by the defendant's servant. But that case is
distinguishable from the present in many respects. The question arose
upon a motion in arrest of judgment, and not upon a new trial ; and
therefore it was not in dispute how far the evidence tallied with the
declaration ; and the declaration was good on the face of it. Next, it
was an action founded on the custom of the realm ; and therefore by
law the act was specially imputable to the defendant. Again, it is
stated to have been a fire lighted in the course of husbandry, which
must necessarily have been either by the express or implied command
of the ovv^ner ; in which case the objection could not have arisen even
at Nisi Prius. And the court are made to say that if the servant kin-
dled the fire by way of husbandry, and proper for his employment,
though he had no express command, his master shall be liable ; for it
shall be intended that the servant had authority from his master, it be-
ing for his master's benefit. Both these cases therefore fall within the
former rules, and do not apply to the present, where the liability of the
master arises from the culi)able conduct of the servant in an instance
which cannot be imputed either to an express or implied command.

Williams, Serjt., and liussell, after mentioning the case of Turber-
ville V. Stampe to show that this mode of declaring was considered in
Lord Holt's time as the proper form, where an action is brought against
the master for the negligence of the servant, upon the principle that
it is sufficient to declare upon the legal effect of any act, were stopped
by the court.

Lord Kenyon, C. J. On reason and on principle I should have been
inclined to support the decision at Nisi Prius, because it is most con-
venient to state the real cause of action on the record. But I cannot
distinguish this case from that cited from Lord Raymond's Report ;
nor am I equal to the task of overturning a precedent that was con-
sidered b}' Lord Holt and the court as a good one.

AsHHURST, J. I think it may be stated in the declaration either
way, though it is certainly most convenient to state the fact as it really
happened.

Grose, J. The use of a declaration is to inform the defendant of
everything that the plaintiff intends to prove, and that the defendant
is called upon to answer ; and on looking at this declaration the de-
fendant could not know that the action was brought against him for
the act of his servant ; but I cannot get rid of the authority of the case
that has been mentioned.

Lawrence, J., of the same opinion.

On the next day Plumer mentioned this case again ; observing that
the case of Turberville v. Stampe, on the authority of which alone he
understood the court had granted a new trial, did not apply to this
case, because there the question was not, whether the facts proved sup-
ported the declaration, but whether the declaration itself was good, it

98 BUSH V. STEINMAN. fCIIAP. IL

being an action on the custom of the realm against the defendant for
negligentl}' keeping his fire, and it was stated in the declaration that
the fire was on a close of heath and not in the defendant's house. But
Lord Kenyon, C. J., said, the ground on which that case influenced
m}' opinion was, that that precedent was at that time considered as a
good one. Hule absolute.^

BUSH V. STEINMAN.
IDEM ET ux. V. EUNDEM.

Common Pleas. 1799.

[1 B.Sr P. 404.]

These were two actions on the case against the defendant for caus-
ing a quantity of lime to be placed on the high-road, b}' means of
which the plaintiff and his wife were overturned and much hurt, and
the chaise in which they then were was considerably damaged.

The two actions came on together to be tried before Eyre, Ch. J., at
the Guildhall Sittings after last Hilary term, when the following circum-
stances appeared in evidence. The defendant having purchased a
house by the road-side (but which he had never occupied), contracted
with a surveyor to put it in repair for a stipulated sum ; a carpenter
having a contract under the surveyor to do the whole business em-
ployed a bricklayer under him, and he again contracted for a quantity
of lime with a lime-burner, by whose servant the lime in question was
laid in the road. The Lord Chief Justice was of opinion that the
defendant was not answerable for the injury sustained by the plaintiff
under the above circumstances ; but in order to save expense, a verdict
was taken for the plaintiff for £12 12s., with liberty to the defendant to
move to have a nonsuit entered.

Accordingl}' a rule nisi for that purpose having been obtained on a
former day,

Cockell and Shepherd, Serjts., now showed cause.

Le Blanc and 3Iarshall, Serjts., contra.

Eyre, C. J. At the trial I entertained great doubts with respect
to the defendant's liability in this action. He appeared to be so far
removed from the immediate author of the nuisance, and so far re-
moved even from the person connected with the immediate author in
the relation of master, that to allow him to be charged for the injury
sustained b^- the plaintiff seemed to render a circuit}' of action neces-
sary. Upon the plaintiff^s recover}', the defendant would be entitled
to an action against the surve3"or, the surveyor and each of the sub-
contracting parties in succession to actions against the persons with
whom they immediately contracted, and last of all the lime-burner

1 Tompare Anonymous, Y. B. 32 Ed. I. (Rolls ed.) 3.31, 333 (1304). — Ed.

SECT. II.] BUSH V. STEINMAN. 99

would be entitled to the common action against his own servant. I
hesitated therefore in carrying the responsibility beyond the immediate
master of the person who committed the injury, and I retained my
doul)ts upon the subject, till I had heard the argument on the part of
the plaintiff, and had an opportunity of conferring with my brothers.
They, including Mr. Justice Buller, are satisfied that the action will
lie, and upon reflection, I am disposed to concur with them ; though I
am read}' to confess that I find great difficult}- in stating with accuracy
the grounds on which it is to be supported. The relation between
master and servant as commonly exemplified in actions brought against
the master is not sufficient ; and the general proposition that a person
shall be answerable for anj* injury which arises in carrying into execu-
tion that which he has employed another to do, seems to be too large
and loose. The principle of Stone v. Cartwright, 6 T. R. 411, with the
decision of which I am well satisfied, is certainh' applicable to this
case; but that of Littledale v. Lord Lonsdale, 2 H. Bl. 267, 299,
conies much nearer. Lord Lonsdale's collier}' was worked in such a
manner b}' his agents and servants (or possibly by his contractors, for
that would have made no difference) that an injury was done to the
plaintiff's house, and his Lordship was held responsible. Wh}'? Be-
cause the injury was done in the course of his working the collier}' ;
whether he worked it by agents, by servants, or by contractors, still it
was his work ; and though another person might have contracted with
him for the management of the whole concern without his interfer-
ence, yet the work being carried on for his benefit, and on his pro-
perty, all the persons employed must have been considered as his
agents and servants notwithstanding any such arrangement ; and he
must have been responsible to all the world, on the principle of sic utere
tuo lit alienum non Icedas. Lord Lonsdale having empowered the
contractor to appoint such persons under him as he should think fit,
the persons appointed would in contemplation of law have been the
agents and servants of Lord Lonsdale. Nor can I think tliat it would
have made an}' difference, if the injury complained of had arisen from
his Lordship's coals having been placed by the workmen, on the prem-
ises of Mr. Littledale, since it would have been impossible to distin-
guish such an act from the general course of business in which they
were engaged, the whole of which business was carried on either by
the express direction of Lord Lonsdale, or under a presumed authority
from him. The principle of this case therefore seems to afford a ground
which may be satisfactory for the present action, though I do not say
that it is exactly in point. According to the doctrine cited from
Blackstone's Commentaries if one of a family " layeth oi " casteth "
anything out of the house which constitutes a nuisance the owner is
chargeable. Suppose then that the owner of a house, with a view to
rebuild or repair, employ his own servants to erect a hoard in the street
(which being for the benefit of the public they may lawfully do) and
they carry it out so far as to encroach unreasonably on the highway, it

100 BUSH V. STEINMAN. [CHAP. II.

is clear that the owner would be guilty of a nuisance ; and I apprehend
there can be but little doubt that he would be equally guilty if he had
contracted with a person to do it for a certain sum of money, instead
of employing his own servants for the purpose ; for in contemplation of
law the erection of the hord would equally be his act. If that be estab-
lished we come one step nearer to this case. Here the defendant by a
contractor, and by agents under him, was repairing his house ; the
repairs were done at his expense, and the repairing was his act. If
then the injury complained of by the plaintiff was committed in the
course of making those repairs, I am unable to distinguish the case
from that of erecting the hord, or from Littledale v. Lord Lonsdale,
unless indeed a distinction could be maintained (which however I do
not think possible) on the ground of the lime not having been deUvered
on the defendant's premises, but only at a place close to them, with a
view to being carried on to the premises, and consumed there. My
brother BuUer recollects a case which he would have stated more
particularly, had he been able to attend. It was this ; a master having
employed his servant to do some act, the servant out of idleness
employed another to do it, and that person in carrying into execution
the orders which had been given to the servant committed an injury to
the plaintiff, for which the master was held liable. The responsibility
was thrown on the principal from whom the authority originall}' moved.
This determination is certainly highly convenient, and beneficial to the
public. Where a civil injury of the kind now complained of has been
sustained the remed}' ought to be obvious, and the person injured
should have only to discover the owner of the house which was the
occasion of the mischief; not be compelled to enter into the concerns
between that owner and other persons, the inconvenience of which
would be more heavily felt than any which can arise from a circuity of
action. Upon the whole case, therefore, though I still feel difficulty
in stating the precise principle on which the action is founded, I am
satisfied with the opinion of my brothers.

Heath, J, I found my opinion on this single point, viz. : that all
the subcontracting parties were in the employ of the defendant. It
has been strongly argued that the defendant is not liable, because his
liability can be founded in nothing but the mere relation of master and
servant ; but no authority has been cited to support that proposition.
Whatever may be the doctrine of the civil law, it is perfectlv clear
that our law carries such liabilitj- much further. Thus a factor is not a
servant ; but being employed and trusted by the merchant, the latter,
according to the case in Salkeld, is responsible for his acts. There are
besides this other cases. As where a person hires a coach upon a job,
and a job-coachman is sent with it, the person who hires the coach is
liable for any mischief done by the coachman while in his employ,
though he is not his servant. We all remember an action for defamar
tion brought against Tattersall who was the proprietor of a newspaper,
with sixteen others ; the libel was inserted by the persons whom the

SECT. II.] BUSH V. STEINMAN. 101

proprietors had employed by contract to collect news, and compose the
paper, yet the defendant was held liable. Now this is a strong case to
show that it makes no difference wliether the persons employed by the
defendant were employed on a quantum meruit, or were to be paid a
stipulated sura. In Rosewell v. Prior, Salk. 460, an action for the con-
tinuance of a nuisance was held to lie against the defendant though he
had underlet the building which was the subject of it, and though the
plaintiff had recovered against him in a former action for the erection
of the nuisance ; for the court said " he affirmed the continuance by his
demise, and received rent as a consideration for it." That case la
analogous to the present ; the ground of the decision having been, that
the defendant was benefited by the nuisance complained of. It is not
possible to conceive a case in which more mischief might arise than in
the present, if the various subcontracts should be held sufficient to
defeat the plaintiff of his action. Probably' he would not be able to
trace them all, since none of the parties could give him anv information,
and consequently he might be turned round every time he came to
trial.

RooKE, J. I am of the same opinion. He who has work going on
for his benefit, and on his own premises, must be civilh" answerable
for the acts of those whom he emplo3S. According to the principle of
the case in 2 Lev. it shall be intended b}' tlie court, that he has a con-
trol over all those persons who work on his premises, and he shall
not be allowed to discharge himself from that intendment of law by
an}' act or contract of his own. He ought to reserve such control, and
if he deprive himself of it, the law will not permit him to take ad-
vantage of that circumstance in order to screen himself from an action.
The case which has been supposed of the lime having been deposited at
a distance from the defendant's house, and the accident having hap-
pened there, does not apply ; for here a person acting under the
general employment of the defendant brought a quantity of lime to
the premises and deposited it without any objection being made by
any person there, whereas it was the dut}' of the defendant to have
provided a person to superintend those employed in his work. The
person from whom the whole authorit}' is originallj' derived, is the
person who ought to be answerable, and great inconvenience would
follow if it were otherwise. There is such a variety of sub-contracts in
this case as rarely occurs, but this serves only to illustrate more
strongly the mischief which would ensue should we depart from the
doctrine in Stone v. Cartwright. In that case, and in Littledale v.
Lord Lonsdale, the safest rule was adopted. The plaintiff may bring
his action either against the person from whom the authority flows, and
for whose benefit the work is carried on, or against the person by whom
the injury was actually committed. If the employer suffer by the acts
of those with whom he has contracted he must seek his remedy against
them. Utile discharged.

102 McMANUS V. CRICKETT. [CHAP. L

McMANUS V. CRICKETT.
King's Bench. 1800.

[1 East, 106.1

This case was very much discussed at the bar, upon a motion to set
aside a verdict for the plaintiff, and enter a nonsuit, by Gibbs and
Jf oat? against the rule, and Garrow and Giles in support of it. The
court took time to consider of their judgment ; and afterwards entered
so fully into the cases cited and the arguments urged at the bar that
it is unnecessary to detail them in the usual form.

Lord Kenyon, C. J., now delivered the unanimous opinion of the
court.

This is an action of trespass, in which the declaration charges that
the defendant with force and arms drove a certain chariot against a
chaise in which the plaintiff was riding in the king's highway, by which
the plaintiff was thrown from his cjhaise and greatly hurt. At the trial
it appeared in evidence that one Brown, a servant of the defendant,
wilfully drove the chariot against the plaintiff's chaise, but that the
defendant was not himself present,^ nor did he in any manner direct or
assent to the act of the servant; and the question is, if for this wilful
and designed act of the servant an action of trespass lies against the
defendant, his master. As this is a question of very general extent,
and as cases were cited at the bar, where verdicts had been obtained
against masters for the misconduct of their servants under similar cir-
cumstances, we were desirous of looking into the authorities on the sub-
ject, before we gave our opinion ; and after an examination of all that we
could find as to this point, we think that this action cannot be maintained.
It is a question of \&\'y general concern, and has been often canvassed ;
but I hope at last it will be at rest. It is said in Bro. Abr. tit. Trespass,
pi. 435, "• If my servant, contrary to my will, chase my beasts into the
soil of another, I shall not be punished." And in 2 Roll. Abr. 553,
" If my servant, without m}' notice, put my beasts into another's land,
my servant is the trespasser, and not I ; because b}' the voluntar}' put-
ting of the beasts there without m}- assent, he gains a special property
for the time, and so to this purpose they are his beasts." I have
looked into the correspondent part in Vin. Abr. and as he has not pro-
duced any case contrary to this, I am satisfied with the authority of it.
And in Noy's Maxims, ch. 44, "If I command my servant to distrain,
and he ride on the distress, he shall be punished, not I." And it is
laid down by Holt, C. J., in Middleton v. Fowler, Salk. 282, as a gen-
eral position, " that no master is chargeable with the acts of his servant
but when he acts in the execution of the authority given him." Now

^ No person was in the carriage : the act was done by the servant either in going
for or after he had set down his master. — Rep.

SECT. II.] McMANUS V. CRICKETT. 103

when a servant quits sight of the object for which he is employed, and
without having in view his master's orders pursues that which his own
malice suggests, he no longer acts in pursuance of the authority given
him, and according to the doctrine of Lord Holt, his master will not
be anwerable for such act. Huch upon the evidence was the present
case ; and the technical reason in 2 Roll. Abr. with respect to the
sheep applies here ; and it may be said that the servant, by wilfully
driving the chariot against the plaintiff's chaise, without his master's
assent, gained a special property for the time, and so to that purpose
the chariot was the servant's. This doctrine does not at all militate
with the cases in which a master has been holden liable for tlie mis-
chief arising from the negligence or unskilfulness of his servant, who
had no purpose but the execution of his master's orders ; but the
form of those actions proves that this action of trespass cannot be
maintained : for if it can be supported, it must be upon the ground
that in trespass all are principals ; but the form of those actions
shows that where the servant is in point of law a trespasser, the
master is not chargeable as such ; though liable to make a compen-
sation for the damage consequential from his employing of an unskilful
or negligent servant. The act of the master is the employment of
the servant ; but from that no immediate prejudice arises to those
who may suffer from some subsequent act of the servant. If this
were otherwise, the plaintiffs in the cases mentioned in 1 Lord Raym.
739 (one where the servants of a carman through negligence ran over
a bo}' in the streets and maimed him ; and the other, where the ser-
vants of A. with his cart ran against the cart of B. and overturned it,
by which a pipe of wine was spilt) must have been nonsuited from
their mistaking the proper form of action, in bringing an action upon
the case, instead of an action of trespass ; for there is no doubt of the
servants, in those cases, being liable as trespassers, even though the}'
intended no mischief; for which, if it were necessary, Weaver v. Ward,
in Hobart 134, and Dickinson w. Watson, in Sir Thomas Jones, 205, are
authorities. But it must not be inferred from this that in all cases
where an action is brought against the servant for improperh' con-
ducting his master's carriage, by which mischief happens to another,
the action must be trespass. Michael v. Allestree, in 2 Levinz, 172,
where an action on the case was brought against a man and his servant
for breaking a pair of horses in Lincoln's Inn Fields, where, being
unmanageable, they ran awa}' with the carriage and hurt the plaintiffs
wife, is an instance to show that trespass on the case ma}* be the
proper form of action. And upon a distinction between those cases
where the mischief immediately proceeds from something in which the
defendant is himself active, and where it may arise from the neglect
or other misconduct of the party, but not immediately, and which per-
haps may amount only to a nonfeasance, we held in Ogle v. Barnes, 8
Term Rep. 188, that the plaintiff was entitled to recover. The case of
Savignac and Roome, 6 Term Rep. 125, which was much pressed as

104 WEYLAND V. ELKINS. [CHAP. IL

supporting this action, came before the court on a motion in arrest
of judgment ; and the only question decided by the court was, that the
plaintiff could not have judgment, as it appeared that he had brought
an action on the case for that which in law was a trespass ; for the
declaration there stated that the defendant by his servant wilfully drove
his coach against the plaintiff's chaise. Day v. Edwards, 5 Term Rep.
648, was also mentioned ; which was an action on the case, in which
the declaration charged the defendant personally with furiously and
negligentl}' driving his cart ; that by and through the furious, negli-
gent, and improper conduct of the defendant the said cart was driven
and struck against the plaintiff's carriage ; and on demurrer, the court
were of opinion that the fact complained of was a trespass. And in
the last case that was mentioned, of Brucker v. Fromont, 6 Term Rep.
659, the only point agitated was, whether evidence of the defendant's
servant having negligently managed a cart supported the declaration,
which imputed that negligence to the defendant ; and the court with
reluctance held that it did, on the authority of a precedent in Lord
Raymond's Reports, 264, of Turberville and Stamp. In none of
these cases was the point now in question decided ; and tliose determi-
nations do not contradict the opinion we now entertain, which is, that
the plaintiff cannot recover, and that a nonsuit must be entered.

Per Curiam, Hule absolute for entering a nonsuit.

WEYLAND V. ELKINS.
Nisi Prius. 1816.
[ Holt N. P. 227.1]

This was an action against the defendant, the proprietor of a
wagon, for the negligence and misconduct of his servant, the driver ;
who had driven the wagon against a cart which stood in the public
street, in Kensington, and had forced the cart against the plaintiff^s
shop window, which was thereby broken. The wagon belonged to the
defendant ; but the horses were the property of another partner, of the
name of Dyson. The business of a public carrier was divided between
them : the defendant provided the wagon, and Dyson found the horses
and drivers, from London to Earnham ; but from Farnham to Gosport,
which was the conclusion of the stage, the defendant provided horses
and drivers. He had, however, no actual control over the wagoner at
the time of the accident ; on the contrar}-, Dyson hired him, and paid
him his wages.

Best^ Serjeant, for the defendant. Elkins is not responsible : it is
his wagon, but it is neither drawn hy his horses nor driven by his

» s. c. 1 Starkie, 272. — Ed

SECT. II.] LAUGHER V. POINTER. 105

servant. The principle of the law is, to hold the master responsible
for the injury done by his servant in the course of his employ ; the
relation of master and servant must therefore subsist, or the law can
raise no responsibility. It would be unjust to make one man liable for
the act of another, whom he has not placed in his employment, and
over whom he has no control. If I lend a friend my carriage, and he
hires a coachman to drive it, am I responsible, as the owner of the
carriage, for an injury done by the driver? The action is a hard one
at best, and ought not to be extended. He cited Barton v. Hanson,
2 Taunt. 49.

GiBBS, C. J. The action is maintainable on this principle : the
wagon belongs to Elkins ; he has the profit of the carriage. On what
terms he engages with other persons to horse the wagon, we cannot
tell. It is sufficient that he is found to be a partner in a common con-
cern, and jointly interested with Dyson in the profits. It is of no
importance how P^lkins and Dyson apportion the carrying business
between them. The servant is engaged to drive the wagon for Elkins,
as well as for his immediate employer Dyson. Though, by the subor-
dinate contract between the partners he is the servant of one, yet in
the contemplation of the law, and for all purposes of legal responsi-
bility, he is in the employ of both. The case cited has no application.
There may be an inferior contract, regulating the rights of the parties,
and binding them to each other, which will not extinguish or alter the
general obligation which the}' all owe to the public.

Yerdict for the plaintiff .

Pell, Serjeant, and Es2nnasse, for the plaintiflf.

Best, Serjeant, for the defendant.

LAUGHER V. POINTER.
King's Bench. 1826.

[5 B. cj- C. 547.1 ]

Case. The first count of the declaration alleged that the plaintiff
was possessed of a horse, and defendant was possessed of a carriage
and two horses harnessed to and drawing the same, and which car-
riage and horses were under the care, government, and direction of a
person, being the servant of the defendant in that behalf, who was
driving the same, yet that the defendant, by his said servant, so negli-
gently and improperly' drove and directed his said carriage and horses
that by the negligence and improper conduct of the defendant, by his
said servant, the carriage ran and struck against the plaintiff's horse,
&c. The second count differed from the first, onh', by omitting to

1 8. c. 8D. & R. 556. — Ed.

106 LAUGHER V. POINTER. [CHAP. H.

state that the defendant was possessed of the horses. The third and
last count alleged that the defendant was possessed of a carriage drawn
1)3' two horses under the care, government, and direction of the defend-
ant, yet that the defendant so negligently and iuiproperl}' drove,
governed, and directed the carriage and horses that, b\' the negligence
and improper conduct of the defendant, tiie carriage ran and struck
against the plaintiff's horse, &c. At the trial before Abbott, C. J., at
the London sittings after Michaelmas terra, 1823, it appeared in evi-
dence that tlie defendant, a gentleman usually residing in the country,
being in town for a few days with his own carriage, sent in the usual
wa}' to a stable-keeper for a pair of horses for a day. The stable-
keeper accordingly sent the pair of horses and a- person to drive the
same. The defendant did not select the driver, nor had any previous
knowledge of him. The stable-keeper sent such person as he chose
for this purpose. The driver had no wages from his master, but
depended upon receiving a gratuity from the persons whose carriages
he drove ; tlie defendant gave him 5s. as a gratuit}- for his day's work,
but the driver had no power to demand anything. The Lord Chief
Justice thought that the evidence did not support the declaration, and
directed a nonsuit. A rule nisi for a new trial was afterwards granted,
and upon the argument, there being a difference of opinion on the
bench, the case was directed to be argued before the twelve judges, all
of whom (except the Lord Chief Baron) met for that purpose in
Serjeant's Inn Hall, on the 2d of Februarj' 1825, when

Tindal showed case against the rule.

Abraham^ contra.

Tindal., in replj'. Cur. adv. vidt.

And now the Judges not being agreed in opinion proceeded to give
judgment seriatim.

LiTTLEDALE, J, ^ In the course of driving the carriage, the coach-
man by his negligent conduct occasioned the injury ; and the question
for the consideration of the court is, whether the defendant be liable.
According to the rules of law, ever}' man is answerable for injuries
occasioned b}' his own personal negligence ; and he is also answerable
for acts done by the negligence of tliose whom the law denominates his
servants, because such servants represent the master himself, and their
acts stand upon the same footing as his own. And in the present case
the question is, whether the coachman, by whose neglitj:ence the injury
was occasioned, is to be considered a servant of the defendant.

For the acts of a man's own domestic servants there is no doubt but
the law makes him responsible, and if this accident had been occa-
sioned by a coachman who constituted a part of the defendant's own
family, there would be no doubt of the defendant's liabiHty ; and the
reason is, that he is hired b}- the master either personally or by those

* After stating the case. — Ed.

SECT. II.J LAUGHER V. POINTER. 107

who are entrusted b}- the master with the hiring of servants, and he is
therefore selected by the master to do the business required of him.

This rule applies not onl}- to domestic servants who may have the
care of carriages, horses, and other things in the emplo}- of the family-,
but extends to other servants whom the master or owner selects and
appoints to do an}' work or superintend any business, although such
servants be not in the immediate employ or under the superintendence
of the master. As, for instance, if a man is the owner of a ship, he
himself appoints the master, and he desires the master to appoint and
select the crew ; the crew thus become appointed bj' the owner, and
are his servants for the management and government of the ship, and
if any damage happens through their default, it is the same as if it
happened through the immediate default of the owner himself So the
same principle prevails if the owner of a farm has it in his own hands,
and he does not personally interfere in the management, but appoints a
bailiff or hind who hires other persons under him, all of them being paid
out of the funds of the owner, and selected b}' himself or b}' a person
specially deputed by him, if any damage happen through their default
the owner is answerable, because their neglect or default is his, as
they are appointed b}' and through him. So in the case of a mine, the
owner employs a steward or manager to superintend the working of
the mine, and to hire under workmen, and he pa^s them on behalf of
the owner. These under workmen then become the immediate ser-
vants of the owner, and the owner is answerable for their default in
doing an}- acts on account of their employer. This, however, is not
the case of a man employing his own immediate servants, either
domestic servants or others, engaged by him to conduct an}- business,
or emplo3'ment, or occupation carried on by him. For the jobman was
a person carrving on a distinct employment of his own, in which he
furnished men and let out horses to hire to all such persons as chose
to employ him. This coachman was not hired to the defendant; he
had no power to dismiss him. He paid him no wages. The man was
only to drive the horses of the jobman. It is true the master paid him
no wages, and the whole which he got was from the person who hired
the horses, but that was only a gratuity. It is the case with servants
at inns and hotels. Where there is a great deal of business they fre-
quently receive no wages from the owner of the inn or hotel, and trust
entirely to what they receive from the persons who resort to the inn or
hotel, and yet they are not the less the servants of the innkeeper ;
they are not servants upon wages, but servants upon expectation of
gratuities. And, therefore, if the defendant is in this case to be
answerable for the acts of the driver provided by the jobman, it must
be upon this principle, that if a man either for his benefit or pleasure
employs an agent to conduct any business, such agent is to be looked
upon in the same light as if he was the immediate servant of the
employer, and that the owner of the property by employing such an
agent to transact his business, confides to him the choice of the undet

l08 LAUGHER V. POINTER. |_CHAP. IL

workmen, and then the principle must go on to this, that such agent
and under workmen are to be considered in the same light as the fore-
man or manager of a person in conducting his business, and as the
workmen selected by such foreman or manager ; and that it makes no
difference to persons who receive an injur}- in what light the offending
party stands to the principal, whether as an under workman employed
b}- an agent, or an under workman employed by the foreman of the
principal. And that the onl}- thing to be looked to is, whether in the
end the principal pays for the employment in the course of which the
injur}' is occasioned.

But I think tliat, upon principle, this rule cannot be carried so far.
In Bush V. Steinman, 1 Bos. & Pul. 407, indeed, Mr. Justice Heath
expresses it as his opinion that if a person hires a coach upon a job,
and a job coachman is sent with it and does any injur}', the hirer of the
carriage is answerable. That is certainly entitled to great weight, as
being the opinion of a very able judge. It was, however, only an obiter
dictum, and in a case where, like the present, there is a difference of
opinion amongst the judges, the question must, if possible, be deter-
mined upon principle and decided cases. If a man charters a ship for
a voyage or for time, and the master and mariners are appointed by
the owner, this ship is employed for the benefit and for transacting the
business of the charterer, just the same as if he had a ship of his own
employed in the same service, and it might be said that he deputes to
the owner the selection of the master and mariners ; but in such a case
the law has never considered the charterer liable to third persons for
the negligence of the master and mariners. In Fletcher v. Braddick,
2 N. R. 182, the owners had chartered the vessel to the commissioners
of the navy, who were to put an officer on board, under whose direction
the master was to act, and though there was a king's pilot on board,
yet the owners were nevertheless held liable for running down the
plaintiffs ship. In Nicholson v. Mounsey, 15 East, 384, a captain
of a man of war was held not liable for the default of the lieutenant
whose watch it was when an injury was committed. Suppose a man
has a ship or a carriage or other thing to repair, and he, instead of
having the repairs done on his own premises and by his own servants,
sends it out to be repaired by a person who exercises the public
employment under which it would be repaired, and any damage hap-
pens in the course of the repair by the negligence of the persons
employed ; these are employed by a person who may be considered the
agent of the principal, and yet the law would not hold the principal
liable. If a man hires a carriage and horses to travel from stage to
stage, the carriage and horses are employed for the benefit or pleasure
of the traveller, instead of using his own, which he may not do either
from inability to keep horses or a desire of expedition, and yet the law
has never considered the traveller liable. There is no difference in
principle between a man's travelling by the stage or travelling by the
day. In one case and the other the traveller is using the carriage and

SECT. II.] LAUGHER V. POINTER. 109

horses for his benefit ; he pays so much by the day instead of so much
by the mile ; he pays the coachman a gratuity in one case, and the
postilion in the other case, and yet the traveller has never been held
liable. As to this latter point, there are some decisions in point : Sam-
raell V. Wright, 5 Plsp. 2G3, where the horses were hired to go to
Windsor, and the owner of the horses was held liable, because the}'
were under the care and direction of his servants. The carriage
belonged to the traveller, who was the marchioness of Bath. The case
of Dean v. Branthwaite, 5 Esp. 35, arose on a dispute between the
owner of the carriage and the owner of the horses, which were hired
to go to Epsom. Lord EUenborough says, a person who hires horses
under such circumstances has not the entire management and power
over them, but that they continue under the control and power of the
stable-keeper's servants who were entrusted with the driving ; and
that he would be answerable for any accident occasioned b}' the post-
boy's misconduct on the road, and then he mentioned a case which had
occurred of that kind. In this case, also, the party travelling had his
own carriage. The same rule would apply to a hackney-coach; a man
instead of hiring his own carriage and servants, employs a hacknej--
man to drive him ; there it is for the profit or convenience of the person
riding in the coach, and yet the person so riding is not liable.

The cases referred to before Lord EUenborough onl}- show, indeed,
the owner of the horses to be liable, but it may be said the traveller is
liable also. I think not. The coachman or postilion cannot be the
servant of both. He is the servant of one or the other, but not the
servant of one and the other; the law does not recognize a several
liabilit}' in two principals who are unconnected. If the}' are jointly
liable you may sue either, but you cannot have two separately liable ;
you must bring your action either against the principal, or the person
who commits the injury. Stone v. Cartwright, 6 T. R. 411. There it
was held that an action for an injury sustained through the improper
working of a mine, must be brought agahist the owner of the mine, or
against the workmen who did the injury, but that it could not be
brought against an agent who hired the workmen. The allowing two
principals to be severally liable would tend to a multiplicity of actions,
because if the traveller was liable, he might have an action against the
stable-keeper for supplying improper drivers and horses, and then the
stable-keeper might have an action against his own drivers. If, indeed,
several persons are concerned in a trespass, or other tortious act, they
are liable jointly or severally, at the election of the party injured, but
the several liability arises from the joint liability, and from the rule of
law that a party injured need not sue all who are guilty of the wrongful
act ; but what I say is, that two persons cannot be made separately
liable at the election of the party suing, unless in cases where they
would be jointly liable ; and there cannot be any ground for saying
that the hirer of the horses and the jobman would be jointly liable.
There are, however, cases which have been determined upon princi*

110 LAUGHER V. POINTER. [CHAP. IL

pies not altogether consonant to what 1 have before considered are
those upon which the liabilities of parties should be determined, where
persons have been held liable for the negligence of individuals who
were not their own immediate sei'vants, but the servants of agents
whom the}' had employed to do their work.^ . . .

But supposing these cases to be rightl}' decided, there is this mate-
rial distinction, that there the injury was done upon or near and in
respect of the property of the defendants, of which they were in pos-
session at the time. And the rule of law ma}' be that in all cases
where a man is in possession of fixed property he must take care that
his property is so used and managed that other persons are not injured,
and that, whether his property be managed by his own immediate ser-
vants or by contractors or their servants. The injuries done upon
land or buildings are in the nature of nuisances, for which the occupier
ought to be chargeable when occasioned by anj' acts of persons whom
he brings upon the premises. The use of the premises is confined by
the law to himself, and he should take care not to bring persons there
who do an\' mischief to others.^ .... It may be said that the defend-
ant in the present case was owner of the carriage, and that therefore
the principles of these latter cases apply ; but, admitting these cases, the
same principle does not apply to personal movable chattels as to
the permanent use and enjoyment of land or houses. Houses and land
come under the fixed use and enjoyment of a man for his regular occu-
pation and enjo3'ment in life ; the law compels him to take care that
no persons come about his premises who occasion injur}' to others.
The use of a personal chattel is merely a temporary thing, the enjoy-
ment of which is, in many cases, trusted to the care and direction of
persons exercising public employments, and the mere possession of
that, where the care and direction of it is entrusted to such persons,
who exercise public employments, and in virtue of that furnish and
provide the means of using it, is not sufficient to render the owner
liable. Movable property is sent out into the world by the owner to
be conducted by other persons : the common intercourse of mankind
does not make a man or his own servants always accompany his own
property ; he must in many cases confide the care of it to others who
are not his own servants, but whose employment it is to attend to it.
And in the instances of various kinds of carriages, they are frequently,
in the common intercourse of the world, confided to the care of persons
who provide the drivers and horses, and it is not considered that the
drivers necessarily belong to the owner of the carriage. And I think
that there cannot be any difference, in point of law, as to the liabilities
of these persons arising from the mere ownership of the carriage, and
that the ownership of the carriage makes him no more responsible
than it would do if it had been sent to be repaired by a coachmaker

1 Here Bush v. Steinman, ante, p. 98, and Sly v. Edgley, 6 Esp. 6, were stated. — Ed.

2 Here Littledale v. Lord Lonsdale, 2 H. Bl. 299, and Leslie v. Pounds, 4 Taunt
649. were stated. — Ed.

SECT. II.] LAUGHER V. POINTEK. lH

who, in the course of repair, had occasioned any damage to other per-
sons ; but if the injury arises from the driver, it is he, or the person
who appoints him, that is to be responsible. It ma}- be said that,
according to this doctrine, a person wlio liired job-liorses and a coach-
man for a year would not be answerable for the negligence of the
coachman ; if the coachman remain the mere servant of the jobman,
not otherwise employed in the service of the hirer, 1 think the hirer
would not be liable for whatever time he hired the coachman and
horses ; but where the coachman is hired for a year, it will verj' often
happen that he is em[)loyed in other services besides the mere atten-
tion to the coach and horses ; and if, by such circumstances, he be-
comes the servant of the hirer, besides being the servant of the jobman,
the case might then admit of a different consideration. In Chilcot v.
Bromley, 12 Ves. 114, testator bequeathed to all his servants £500
each ; and it was held, that a coachman supplied by a jobmaster,
together with a carriage and horses which were hired by the 3'ear, was
not entitled to be considered a servant.

This, however, is not the case of a servant employed for a year or a
month, and upon the whole of the circumstances of this case, I am of
opinion that this defendant is not liable for the damage that has
occurred, and that the rule for setting aside the nonsuit should be
discharged.

There are man}' cases where questions have arisen upon the liabilities
of postmasters, of captains of ships of war, and of owners of ships who
have taken pilots, and of factors who have acted for their principals,
and others, as to what degree of possession is kept by the owner.
These I have not thought it necessary to notice, because I think the
sole question here is, whether if a man employs another to do work
respecting personal movable property, and that other furnishes a ser-
vant, that servant is to be considered in the same light as a servant
appointed by the person himself.

HoLROYD, J.^ It was contended in the argument, not only that the
defendant was not responsible for the driver, but that the plaintiff
could not recover on this declaration, each count of which contained as
a material allegation that the act was done by the defendant's servant,
whereas the driver could not be considered as his servant. But my
mind has come to the conclusion, that the defendant is responsible for
the driver's negligence, and responsible too upon this declaration, the
driver being to be considered, in my opinion, for this purpose, as, in
law, his servant. It appears to me that the defendant stands in the
same situation of responsibility as if the horses had been driven by
Bryant himself, or as if they had been driven by a person chosen by
the defendant himself, for the driving is equally under the authority
and orders of the defendant, and equally for his profit, benefit, or
pleasure, and the driver is, I think, equally the defendant's servant for

^ After stating the case. — Ed.

112 LAUGHER V. POINTER. [CHAP. II

that purpose, whether the driver be Bryant himself, the person directly
hired and employed by the defendant, or be another person selected
and appointed by the defendant himself, or a person selected and
appointed bj' Bryant under the authority or permission of the defend-
ant. The question is not whether Brjant, as the owner of the horses
and the immediate master of the driver, might or might not have been
made responsible for the driver's negligence, nor is this the case of a
letting for a particular purpose onl}', such as going to a particular
place, as in Dean v. Branthwaite, 5 Esp. 35, and Sammell v. Wright,
5 Esp. 263, where the hirer was considered not to have the entire
management and control over the things so hired ; from which cases
the present is distinguishable, because the present hiring was for no
such particular purpose, but to go with the carriage where the defend-
ant chose, and to be under his general authority and orders in that
respect for a certain time By such a letting for a certain time the
defendant became possessed in law of the horses so let to him while
he was using them under such letting. It would be so clearl}', if
they had not been retained in the custody of a driver provided by
Bryant, according to the doctrine of Lord EUenborough in Lotan
V. Cross, 2 Camp. 464, where he says, "show a letting" (sc. of
the chaise) " for a certain time to Brown, and the possession would
be in him ; " and in Hall v. Pickard, 3 Camp. 187, where by the
horses being let to hire to Dr. Carey for a certain term, he, and not
the owner, was deemed to be the person in possession of them, as
he. Dr. Carey, had a right to retain them till that time was expired,
though in that case indeed Dr. Carej' is stated to have been driving
them by his own servants when the mischief was done. But in the
present case, although the horses were continued in the custod}' of a
driver provided by Bryant, jet as the horses and the driver were to be
for the use and subject to the general directions of the defendant, and
as the defendant had a right to retain them till the time for which they
were hired was expired, and as they were at the time the mischief was
done in the use and under the directions of the defendant, I think that
the driver was for this purpose in the employ, and in law, the servant
of the defendant, and that the defendant was in law answerable for the
driver's negligence in the execution of the defendant's orders in such
eraplo}', in whatever situation the driver might also stand with respect
to Bryant, with regard to Brj'ant's responsibility for him, at the elec-
tion of the plaintiff. A person ma}' stand in the relation of servant to
two different persons as his masters in two different respects with
regard to the same thing, and this even though the service done, or
to be done, be special and limited to a single act, as appears in 2
Eolle's Abr. 556, pi. 14. . . . So in the present case, I think the
horses were to be considered in law as in the possession of the defend-
ant, and the driver as the defendant's servant, for the purpose for
which he was sent to the defendant ; and I think that a taking of the
horses or driver awav from the defendant's service during the time for

SECT. II.] LAUGHER V. POINTER. 113

which he had hired them, would have been a taking them away from
liim, for which he might have maintained an action of trespass, as for a
taking them out of his possesssion and service ; and, consequentU',
that he was answerable for the driver's negligence in driving him, the
defendant, while under his, the defendant's, orders, and it is to be con-
sidered, I think, as the defendant's driving of the carriage and horses
by his servant.^ . . .

Bayley, J. The question in this case is, whether the owner of the
carriage is answerable for the negligence of the driver. This is not
the case of a driver, where, according to established usage, carriage
and horses and driver belong, not to the person driven, but to another
master, who may easily be discovered, as in the case of a hackney-
coach ; nor is it the case of a driver, where, according to established
usage, neither horses or driver belong to or are commonly in the ser-
vice of the person driven, but belong to another master, who is either
known or may easil}' be discovered, as in the case of post horses ; but
it is the case of a person who hires a pair of horses for the day to draw
his own carriage, and leaves it to the owner of the horses to send such
person to drive them as such owner may think fit. There is nothing
from usage or otherwise to impl}' that the horses are not the defendant's
and the driver his regular servant ; nothing to designate or to make it
easy to discover to whom the horses and driver belong. The general
rule in the case of master and servant, as laid down in Boson v. Sand-
ford, 2 Salk. 440, is, that the man who employs another is answerable
for him. Had the defendant hired the driver, can there be a doubt but
that he would have been defendant's servant? If he leaves it to the
owner of the horses to hire him, is he not, in substance, hired b>- the
defendant? If I hire horses of A. and hire B. to drive, B. is undoubt-
edly, for the time, my servant. Is the driver less my servant fOr the
time, because I hire him and the horses under one bargain, and allow
the owner of the horses to select him? He is employed for me; that
cannot be disputed. He drives where I direct, and so as I require
nothing contrary to ni}' contract with the owner of the horses, he must
obey my reasonable commands. He must go where I order ; must
stop where I require ; must go the pace I specif}'. Though the owner
of the horses is, to a certain extent, his master, I am, to a certain
extent, his master also. Though the former is his master in general,
he has, for a time, let him out to me ; and a master is liable for the
acts of one who is in his service or emplo}-, though the master who is
to be charged is not his immediate employer, but employs him through
the medium of another. If I hire the driver, I am answerable for him ;
if I employ J. S. to hire him, am I not still answerable? I exercise
my own judgment in the one case, I leave it to J. S. to exercise a judg-
ment for me in the other, but still it is for me that the judgment is
exercised. The service is performed for me. It is my work the driver

* Here Bush v. Steiuinau, ante, p. 98, was stated. — Ed.
8

114 LAUGHER V. POINTER. [CHAP. IL

does. In Bush v. Steinraan, 1 Bos. & P. 404, the man who did the
wrong was not selected by the defendant, was not immediately employed
by him, he was only employed through the medium of one who con-
tracted to do the work for the defendant, but he was doing the defend-
ant's work. He was (through the medium of the contractor indeed,
but still he was) working for the defendant, and on that account the
defendant was held liable. " If a deputy has power to make servants,
the principal will be chargeable for their misfeasance, for the act of the
servant is the act of the deputy, and tlie act of the deput}- is the act of
the principal." Per Holt, C. J. in Lane v. Cotton, 1 Ld. Raym. 656.
The owner of a ship is answerable for the misfeasance of mariners,
though he leaves it to the master to select the crew. The owners of a
coach will be liable, though the}' leave it to J. S. to select the driver
and horses, or though the}'^ employ as driver the man who owns the
horses. In man}- instances one proprietor horses a coach for one
stage, another for a second, and so on, and in some instances the man
who finds the horses finds the coachman also. Shall this take away
the liability of all the proprietors? Shall it be said, if the coach does
an injury upon a given stage, that the proprietor who finds the horses
and driver for that stage shall alone be answerable? The horses and
driver are found by the one to do the work of all, the}- are employed
upon the work and for the benefit of all, and therefore all are respon-
sible. Nor does it appear to me to make an}' distinction whether the
driver and horses are hired for a single day only, or for a longer period.
Had they been hired by the year, can there be a doubt but that the
hirer would have been answerable? What if they had been hired for a
month, or for a week? Would the difference of period for which they
were hired make a difference in the responsibility ? Can any legal princi-
ple be adduced to make the period the criterion of being answerable or
not? The driver is equally employed on account of the hirer, to do the
work of the hirer, to obey the lawful commands of the hirer, and to be
the temporary servant of the hirer, whether he is engaged for the day,
the week, the month, or the year, and the hirer bears the appearance for
the time of standing in the relation of master to the driver, and these
are circumstances which in my judgment make the hirer responsible.
Upon these grounds, therefore, that the driver in this case was in the
temporary employ and service of the defendant, and that this is not a
case in which according to the known and established course of pro-
ceeding, it is notorious that the person driven does not stand in rela-
tion of master to the driver, and it is matter of easy discovery who
does stand in that relation, as in the case of hackney-coaches and post
horses ; and that there was nothing in this case to rebut the 2)rhnd
facie pi-esumption that the horses were the defendant's, and the driver
his servant, I am of opinion that this defendant was liable to the action,
and that the nonsuit was wrong.

Abbott, C. J.^ Having made these remarks upon the former cases.

1 After reviewing the decisions. — Ed.

SECT. II.] LAUGHER V. POINTER. 115

I will now proceed to make some observations upon the case as it
might stand independent of prior decisions. I admit the principle
that a man is answerable for the conduct of his servants in mutters
done by them in the exercise of the authority that he has given to them,
and also (which is the same thing in other words) that whatever is
done by his authority is to be considered as done by him. I am sensi-
ble of the didiculty of drawing any precise or definite line as to time or
distance. But I must own that I cannot perceive any substantial
difference between hiring a pair of horses to draw my carriage about
London for a day, and hiring them to draw it for a stage on the
road I am travelling, the driver being in both cases furnished by the
owner of the horses in the usual way ; nor can I feel any substantial
difference between hiring the horses to draw my own carriage on these
occasions, and hiring a carriage with them of their owner. If the
hirer be answerable in the present case, I would ask on what principle
can it be said that he shall not be answerable if he hires for an hour or
for a mile? He has the use and benefit pro tempore, not less in the
one case than in the other. If the hirer is to be answerable when he
hires the horses only, why should he not be answera!)le if he hires the
carriage with them? He has the equal use and benefit of the horses in
both cases, and has not the conduct or management of them more in
the one case than in the other. If the teujporarj- use and benefit of
the horses will make tlie hirer answerable, and there be no reasonable
distinction between hiring them with or without a carriage, must not
the person who hires a hackney-coach to take him for a mile, or other
greater or less distance, or for an hour, or longer time, be answerable
for the conduct of the coachman? Must not the person who hires a
wherr\' on the Thames be ausw^erable for the conduct of the waterman?
I believe the common sense of all men would be shocked if any one
should affirm the hirer to be answerable in either of these cases. ATill
it be said that the hirer is not answerable in either of these cases
because the coachman and the wherryman are read}' to attend to the
call of any person who will emploj- them? I answ^er, so, also, is the
stable-keeper. If it be said that they are obliged to obe}' the call of
anj- person when they are on the stand, or at the stairs, I would ask.
Will there be any difference if the}' are spoken to beforehand, and
desired to attend at a particular hour? which is not an unusual occur-
rence where persons have an engagement to go out at an early hour in
the morning. If the personal presence of the hirer will render him
responsible, why should he not be equallv so if he is absent, and has*
hired the horses or carriage for his family or servants? Does his
presence give him an}' means of superintending or controlling the
driver? Can any legal obligation depend upon such minute distinc-
tions? If the case of a whei'ry on the Thames does not furnish an
analogy to this subject, let me put the case of a ship hired and chartered
for a voyage on the ocean to carry such goods as the charterer may
think fit to load, and such only. Many accidents have occurred from

116 LAUGHER V. POINTER. [CHAP. II.

the negligent management of such vessels, and man}' actions have been
brought against their owners, but I am not aware that any has ever
been brought against the charterer, thougli he is to some purposes the
dominus pro tempore, and the voyage is made not less under his
emploj-ment, and for his benefit, whether he be on board or not, than
the journe}- is made under the employment, and for the benefit of the
hirer of the horses. Wh}', then, has the charterer of the ship, or the
hirer of the wherry, or the hackney-coach, never been thought answer-
able ? I answer. Because the shipmaster, the wherryman, and the
hackney-coachman have never been deemed the servants of the hirer,
although the hirer does contract with the wherryman and the coach-
man, and is bound to pa}* them, and the pay is not for the use of the
boat, or horses, or carriage onlj', but also for the personal service of
the man. In the case now before the court, the hirer makes no con-
tract with the coachman ; he does not select him ; he has no privity
with him ; he usually- gives him a gratuity, but he is not by law obliged
to give him anything ; and from thence I conclude that the coachman
is not the servant of the hirer. And if the coachman is not the ser-
vant of the hirer on such an occasion, but is chosen and entrusted bj'
the owner of the horses to conduct and manage them, I think it cannot
be said that the hirer has in law, what he certainlj' has not in fact, the
conduct and management of the horses. If the coachman is in such
a case the servant of the hirer, he maj', at anj' moment, require him to
quit the charge of the horses, and deliver them over to another, and
must be obej-ed ; but I think it cannot be said that the coachman may
not lawfully refuse, and ought not in most cases to do so. It does not
seem to be doubted that the injured party maj' sue the owner of the
horses ; is there, then, an}' rule of law, or any principle of convenience,
requiring that he should have his choice of suing either the stable-
keeper or the hirer at his election. Generally speaking, the one is as
well able to pay damages as the other, and may be as easily found
out and known, and more easily if the carriage and hoi'ses are hired
together. Should the hirer be held responsible in the first instance, he
must certainly have his remedy over against the letter, so that the
letter will in the end be answerable, and there will be a circuity of
action, which is inconvenient, and to be avoided if possible.

I have acknowledged the difficulty of drawing a line with reference
to time or distance ; and I think we must look to other circumstances
in order to ascertain the obligation of the hirer. Length of time may
in itself be a circumstance deserving of attention, because it may be
evidence of the subsequent approbation and continuance, if not of the
original choice of the coachman. The payment of board wages and
the furnishing a livery may also be circumstances worthy of attention,
because they also may in some cases be considered as evidence of a
choice and a contract. I do not pronounce upon any case of this kind.
I speak only of the present case, and of the evidence given at the
trial ; and not being able to find any reason satisfactory to my own

SECr. 1 1. J JOEL V. MORISON. 117

mind, by which the defendant in this cause can be made answerable in
the present action, 1 lliink myself bound to say tliat, in my opinion,
the rule I'or setting aside the nonsuit ought to be discharged.

Mule discharged.

JOEL V. MORISON.

Nisi Prius. 1834.

[6 C. S,' P. 501.]

The declaration stated, that, on tlie 18th of April, 1833, the plaintiff
was proceeding on loot across a certain public and common higlnva}-,
and tliat the defendant was possessed of a cart and horse, which were
under the care, government, and direction of a servant of his, who was
driving the same along the said highway, and that the defendant by his
said servant so carelessly, negligently, and improperly drove, governed,
and directed the said horse and cart, tliat, by the carelessness, negli-
gence, and improper conduct of the defendant by his servant, the cart
and horse were driven against the plaintiff, and struck him, whereby he
was thrown down and tlie bone of one of his legs was fractured, and he
was ill in consequence, and prevented from transacting his business,
and obliged to incur a great expense in and about the setting the said
bone, &c., and a further great expense in retaining and employing
divers persons to superintend and look after his business for six calen-
dar months. Plea — Not guilty.

From the evidence on the part of the plaintiff it appeared that he
was in Bishopsgate Street, when he was knocked down by a cart and
horse coming in the direction from Shoreditch, which were sworn to
have been driven at the time by a person who was the servant of the
defendant, another of his servants being in the cart with him. The
injur}' was a fracture of the fibula.

On the part of the defendant, witnesses were called who swore that
his cart was, for weeks before and after the time sworn to by the plain-
tiff's witnesses, only in the habit of being driven between Burton
Crescent Mews and Finchley, and did not go into the city at all.

Thesiger, for the plaintiff, in reply, suggested that either the defend-
ant's servants might in coming from Finchley have gone out of their
way for their own purposes, or might have taken the cart at a time
when it was not wanted for the purpose of business, and have gone to
pay a visit to some friend. He was observing that, under these circum-
stances, the defendant was liable for the acts of his servants.

Parke, B. He is not liable if, as you suggest, these young men
took the cart without leave ; he is liable if they were going extra viam
in going from Burton Crescent Mews to Finchley ; but if they chose to
go of their own accord to see a friend, when the}' were not on theil
master's business, he is not liable.

118 WRIGHT V. WILCOX. [CHAP. IL

His Lordship afterwards, in summing up, said : This is an action to
recover damages for an injury sustained by the plaintiff, in consequence
of the negligence of the defendant's servant. There is no doubt that
the phxintiff has suffered the injury, and there is no doubt that the
driver of the cart was guilt}' of negligence, and there is no doubt also
that the master, if that person was driving the cart on his master's
business, is responsible. If the servants, being on their master's busi-
ness, took a detour to call upon a friend, the master will be responsible.

If you think the servants lent the cart to a person who was driving
without the defendant's knowledge, he will not be responsible. Or, if
you think that the young man who was driving took the cart surrepti-
tiouslj', and was not at the time employed on his master's business, the
defendant will not be liable. The master is only liable where the ser-
vant is acting in the course of his employment. If he was going out
of his wa}', against his master's implied commands, when driving on
his master's business, he will make his master lialile ; but if he was
going on a frolic of his own, without being at all on his master's busi-
ness, the master will not be liable. As to damages, the master is not
guilty of an}' offence, he is onl}' responsible in law, therefore the amount
should be reasonable.

Verdict for the plaintiff — damages, £30.*

Thesiger and S. Martin, for the plaintiff.

Platt^ for the defendant.

WRIGHT V. J. AND S. WILCOX.
Supreme Court of New York. 1838.

[19 Wend. 343.]

This was an action on the case, tried at the Cayuga circuit, in Octo-
ber, 1836, before the Hon. Daniel Moskley, one of the circuit judges.

The suit was brought for an injury sustained by tlie son of the plain-
tiff, who was a minor, in being run over by a wagon driven b}' S.
Wilcox, the son of J. Wilcox, whilst in the employment of the father.
Tiie plaintiff's son was a ver}' young lad, and on his wav to school
asked S. Wilcox to permit him to ride ; who answered that he might
do so when be got up a hill which he was then ascending. When the
hill was ascended, the lad took hold of the side of the wagon between
the front and hind wheels. S. Wilcox did not stop his team. He was
cautioned by a bystander that if he did not stop he would kill the bo}'.
He looked behind him; the horses were then walking; and seeing the
plaintiff's son and other boys attempting to get on the wagon, he
cracked his whip and put the horses upon a trot. The plaintifi's son

^ Compare Rayner v. Mitchell, 2 C. P. D. 357 (1877). — Ed.

SECT. II.] WRIGHT V. WILCOX. 119

fell, and one of the hind wheels passed over him, and greatly injured
him. A joint action was brought against the defendants. A motion
was made for a nonsuit, which was denied. The judge charged the
jury that both defendants were answerable, whether the injury was
wilful, or only attributable to negligence. The jury found a verdict for
the plaintiff against both defendants, with one hundred and nine dollars
damages. A motion was made for a new trial.

J. Williams and S. Stevens^ for the defendants.

M. T. Reynolds^ for the plaintiff.

By the Court, Cowen, J. In a case of strict negligence by a ser-
vant while employed in the service of his master, I see no reason why
an action will not lie against both jointly. They are both guilty of the
same negligence at the same time, and under the same circumstances ;
the servant in fact, and the master constructively, b}- the servant,
his agent. Mr. Hammond lays down the rule in this way : " Whether
the principal and inferior may be charged jointly depends on whether
the inferior is liable as a trespasser vi et armis, or in case only. If the
latter, they may be sued together, but otherwise if the former ; it being
held, how justly ma}- be questioned, that a principal is liable for his
agent's misconduct only in case." Ham. on Part, to Actions, 85, 86.
The rule is in the main doubtless right, but seems to be shaken b}'
Moreton v. Hardern, 6 Dowl. and Ryl. 275, in respect to the quality of
the servant's act. There were, in that case, three proprietors of a
coach ; one was driving, and ran against tlie plaintiff's cart. All three
were sued in case ; and several judges thought either trespass or case
would lie against the driver, though the mischief arose from mere neg-
ligence ; but all agreed that case onl}' would lie against the other two
who were absent ; j'et the action was maintained against all three.

But it is impossible to sustain this verdict against the father. It
is difficult to infer from the evidence anything short of a design in
Stephen the servant to throw the plaintiff's boy from the wagon; and
the judge, as I understand the charge, told the jur}' that the defendants
were jointly liable in that view. If Stephen, in whipping the horses,
acted with the wilful intention to throw the plaintiff's boy off, it was a
plain trespass, and nothing but a trespass, for which the master of
Stephen is no more liable than if his servant had committed any other
assault and batter}'. All the cases agree that a master is not liable for
the wilful mischief of his servant, though he be at the time, in other
respects, engaged in the service of the former. 1 Chit. PI. C9, ed. of
1828: M'Manus v. Crickett, 1 East, 106; Ham. on Part, to Actions,
83 ; Croft v. Alison, 4 Barn, and Aid. 590 ; 1 Chit. Gen. Pr. 80.
Browcher v. Noidstrom, 1 Taunt. 568. AVhy is the master chargeable
for the act of his servant? Because what a man does by another he
does by himself. The act is within the scope of the agenc}'. Reeve's
Dom. Rel. 357. " A master is not answerable," says Mr. Hammond,
" for every act of his servant's life, but onl}' for those done in his
relative capacit}*. To charge the master, it must always be shown or

120 WRIGHT V. WILCOX. [CUAP. II

presumed, that the relation of master and servant subsisted between
them in the particular affair. If the master is liable under other cir-
cumstances, he is so, not quatenus master, but as any one would be
who instigates an injury." The dividing line is the wilfulness of the
act. If the servant make a careless mistake of commission or omis-
sion, tlie law holds it to be the master's business negligently done. It
is of the very nature of business that it may be well or ill done. We
frequently speak of a cautious or careless driver in another's employ-
ment. Either may be in the pursuit of his master's business, and neg-
ligence in servants is so common that the law will hold the master to
the consequences as a thing that he is bound to foresee, and provide
against. But it is different with a wilful act of mischief. To subject
the master in such a case, it must be proved that he actually assented,
for the law will not imply assent. In tlie particular affair there is,
then, no longer the presumed relation of master and servant. The
distinction seems to resolve itself into a question of evidence. A man
shall be presumed to intend the ordinarj- consequences of his own acts ;
and especially so far as such consequences may be innocent of all evil
intention ; for these he may be safely held accountable. But for those
which are remote or barely possible, he is not accountable ; and if they
be at the same time criminal, it would be violating one of the plainest
principles of presumptive evidence to sa}' that he intended tliem.
" The master's liabilit\' has never been questioned," says Judge Reeve,
"when a servant does an act injurious to another, through negligence
or want of skill, on the principle that the master should at his peril
employ servants who are skilful or careful." Reeve's Dom. Rel. 357,
358. He admits that the English cases den}' the master's liability
where the servant's act is wilful ; but questions the soundness of the
distinction if the wilful act be done in the immediate performance of
his master's business ; in which I understand the learned judge at the
circuit to have followed him in the case at bar. The answer is, that
the law holds such wilful act a departure from the master's business.
Judge Reeve remarks that one of two innocent persons must suffer,
and that should be the man who put it in the power of the servant to
do the injury ; and the reason is as strong that the master should run
the risk of his servant's unruly passions, as his want of care. Clearly
the argument proves too much. It would make the master account-
able for ever}' mischievous act of the servant which he is enabled to
commit in consequence of the general relation ; for aught I see,
including the credit which the servant ma}' obtain with his merchant.
The learned writer puts a distinction involving the very question we
are considering. A servant, driving a wagon, leaves it and commits an
assault and battery ; for that he admits the master is not liable ; other-
wise, if he should drive it violently over a man with intent to injure
him. "In the first place" (he says), "the servant had abandoned his
master's business ; in the latter he was in the immediate pursuit of it ;
In the first he was not driving his master's wagon, in the last he was."

6ECT. II.J WRIGHT V. WILCOX. 121

Now the authorities deny that when the servant wilfully drives over
the man, he is in his master's business. They hold it a departure, and
a going into the servant's own independent business. It is true, he is
still driving his master's wagon, and so he would be though he should
use it to run away from service. It will hardly be contended, that
after he has completed his escape, the master would be liable for his
running over a man; and wh}'? Because he has taken up a new and
distinct object of his own, and is engaged in executing that ; and has
he not, to every material purpose, done the same whenever he commits
a wilful injury to another ? In M'Manus v. Crickett, the servant, while
driving a chariot on the road as authorized by his master, wilfully
drove against the plaintiff's chaise. Lord Kenton said that the act
being wilful, the chariot might be considered for that purpose in the
possession of the servant as his special proi)erty, and not the master's.
He said : " When a servant quits sight of the object for which he is
employed, and without having in view his master's orders, pursues that
wliich his own malice suggests, he no longer acts in pursuance of the
authority given him." He puts the master's liability on the ground of
negligence or unskilfiilness, with no purpose but the execution of his
orders. Judge Reeve says it is difficult to reconcile such a doctrine
with the cases which hold a sheriif liable for the wilful misfeasance of
his deputy. But such cases are clearl}', as stated b}' Mr. Hammond,
exceptions to the general rule for reasons of policy. Hamm. on Part,
to Actions, 83, 84. The master is liable in case onl}- ; but the action
against the sheriff is trespass, and lies against him for every act of his
officer done colore officii, even the execution of process after the return
day, and the seizing of the goods of a third person. Id. Ackworth v.
Kempe, I Doug. 40 ; Parrot v. Mumford, 2 Esp. N. P. Cas. 585. So
for arresting undei' color of process without having an}- in his hands.
Smart v. Hutton, 2 Nev. and Mann. 426.

The line where the master's liability shall terminate must be placed
somewhere ; and the acquiescence of Westminster Hall for many j-ears
in the rule we have cited as laid down b}' Lord Kenyon, is an evidence
of the common law not to be resisted, especialh' as it will not be found,
I imagine, to conflict with any general principle of that law.

The statute 1 R. S. 693, § 6, has altered the rule in respect to car-
riages for the conveyance of passengers. The owners are here liable,
whether the injur}' done to another b\' the driver be wilful or neg-
ligent. It is not contended, however, that this statute applies to the
case at bar.

The objection to the judge's charge goes to the very foundation of
the action against Joseph Wilcox, the father. It should have been
put to the jur\' that, if they were satisfied from the evidence of
Stephen's design to throw the plaintiff's son from the wagon, they
should have acquitted his father. It is true that by the 2 R. S. 456,
§ IG, 2d ed., this act of Stephen, though wilful, and formerly, therefore,
the subject of an action of trespass only, is, by the statute, made the

122 SLEATH V. WILSON. [CHAP. IL

subject of an action on the case. The only consequence is that he
might have been convicted and liis father acquitted. But the statute,
though it mitigates the consequence of misjoinder, never intended to
alter the effect of the relation between master and servant. It neither
adds to the right of the plaintiff nor the liability of the defendant. It
goes only to the form of the remedy, b}^ giving case in almost all
instances of personal injuries redressible formerly by trespass only.
A new trial must be granted, the costs to abide the event.^

SLEATH V. WILSON.

Nisi Prius. 1839.

[9 C. cj- P. 607.]

Case to recover damages for an injury occasioned to the plaintiff by
the negligent driving of a servant of the defendant. Pleas — 1st, that
the horse and carriage were not the defendant's ; 2nd, that the person
driving was not the defendant's servant ; 3rd, that, at the time when
the injury was sustained, the horse and carriage were not in the employ
of the defendant, but were improperly used b}' the person driving then^
for purposes of his own.

Wilde, Serjt. , in stating tlie plaintiff's case, referred to the case of
Joel y. Morison.

The witnesses on the part of the plaintiff" stated that the defendant's
servant was driving a four-wheeled phaeton, drawn by one horse, along
the Old Street Road, at a quick pace ; some described it as very fast,
others as not so fast ; but they all agreed in the fact that the plaintiff,
who was an old woman nearly sevent\' years of age, and was crossing
the road, was knocked down b}' one of the shafts of the carriage, and
much bruised, and had some of her teeth knocked out.

Slade, for the defendant. The plaintiff's counsel must make out
two things to entitle him to a verdict : 1st, that the servant was acting
within the due scope of his authorit}' ; and, 2ndly, that he was driving
carelessl}'. The case cited for the plaintiff is not all fours with the
present. I rel\' on the case of M'Manus v. Crickett, 1 East, 106.

I shall show that the servant, on the present occasion, was acting
contrary to the directions of his master. He had no business in Old
Street Road at all ; it was four miles out of his wa}-. My learned friend
admits that, if a servant take his master's carriage without his knowl-
edge, the master will not be liable for his acts. I do not see any
difference between that state of facts and this, so far as the conduct
of the servant is concerned. I see no difference between the servant in

1 Ace: De Camp r. Mississippi & Missouri Railroad Co., 12 Iowa, 348 (1861);
Wood r. Detroit City Street Ry. Co., 52 Mich. 402 (1884); Galbrielson o. Waydell
135 N. Y. 1 (1892). "Compare Dwinelle v. N. Y. C. & H. R. Raihroad Co., 120 N. Y
117, 125-126 (1890). — Ed.

SECT. II.] SLEATH V. WILSON. 123

the present case driving out of his way, and the servant in the case
admitted taking the carriage out of the coach-house, and using it for
his own purposes. As to the question of negligence, driving on the
wrong side of the road is not proof of negligence ; there is no obli-
gation to keep on any particular side of the road, if there is room
enough on the road, and no other carriages are in the way.

The servant who was driving the carriage was called as a witness,
and said: "I drove my master to Great Stamford Street; my orders
were, to put up at the Red Lion in Castle Street, Leicester Square, and
meet my master at the Olympic Theatre; I went into Old Street Road
on business for myself ; I took a parcel for m}' wife to her father and
mother; I was driving at a slow pace in Old Street Road, — at a pace
not exceeding four miles an hour ; I called to the woman three times
distinctly, as loud as I could ; she took no notice ; I pulled up imme-
diately when I found she took no notice ; the horse was walking then ;
her back was turned, and I suppose the shaft of the vehicle struck her
on the shoulder ; somebody seized the horse by the bit, and he reared
on his hind legs, and backed ; I was sitting low at the time ; I went to
the old woman, and offered her a recompense of £5 ; she said she could
do nothing with it, I must speak to the gentleman ; I went to him, and
he said he would speak to the part}', and I heard nothing more of it>;
a friend gave me the monej'." On his cross-examination he said :
" I do not know that that money came from my master ; it was a
friend at Turnham Green ; I did not go to the old woman by my
master's desire ; the only conversation I had with my master before I
went was being scolded for going out of my wa}-; the name of the per-
son I got the money from was Barnett; he is a gentleman, a lawyer;
as far as I know, he is my master's lawyer. When I came back, I gave
the money back to Mr. Barnett ; it was dusk when I was in the Old
Street Road ; I saw an object as I was driving ; it had a cloak on ; I
was quite pretty nearly at a stand-still, when she ran herself against
the shaft; she came in contact with the shaft ; I was pulling up at the
time ; her back was towards the horse ; she w^as looking a contrary
wa}', and then she fell down ; I suppose she fell down from fright ; I
got to the Red Lion about half-past seven ; I went there the direct
road from Old Street Road ; I had lived with the defendant about a
year and a half at the time, and lived with him about nine months after."
In answer to questions from the judge, he said : " My master did not
know anything about my having the parcel to deliver ; I left the car-
riage in a yard at the corner of Old Street Road, by Shoreditch, while
I went to Bateman's Row with the parcel ; this was about 200 yards
from the place where the accident happened."

The gentleman at whose house in Stamford Street the defendant was
set down, was also called as a witness for the defence, and stated that
the carriage arrived at his house about four in the afternoon, that he
heard the defendant direct the servant to drive to some stables, the
name of which he did not remember, and to meet him afterwards with

124 SLEATH V. WILSON. [CHAP. IL

the carriage at the Olympic Theatre, and that the sei'vant turned round
and drove the carriage in a direction wliich would lead towards Leices-
ter Square.

Wilde, Serjt., in reply. First, as to the law: The rule of law I
take to be tliis, — if you give your servant the care and control of your
carriage and horses, and tell him to take the carriage to a given place,
you place the carriage under his control as to the mode in which he
is to arrive at that place, and for his conduct in the course of the execu-
tion of that order ^-ou will be responsible. "VVe shall have next the
case of a stage coach, and it will be said that if the coach does not go
by the usual and direct road, the proprietors will not be liable. The
case cited of M'Manus v. Crickett is quite a different case, — there
the servant had a spite against the officer, and drove against him.

Erskine, J. It is quite a different case.

Wilde, Serjt. It is an improper mode ; but is a mode of conducting
the emplo3'ment — the man was out of his road — his object was the
Red Lion Stables, and he went out of his way for purposes of his own,
but still it was an improper act while under his master's orders. It
may be said next, that if the servant turns out of his road to get some-
thing to drink, the master will not be liable for any injury done by him.
It is enough that it is in the course of his emplo}-, though he acts im-
properlj' in carrying his master's orders into execution. The question
is, was he when the act occurred in the course of the master's employ?
If he was, the master will be liable. After some observations bj' the
learned Serjeant on the question of negligence,

Erskine, J., in summing up, said : This is an action brought by the
plaintiff to recover damages for an injury which she alleges she has
sustained by the negligent conduct of the defendant's servant. The
law has said that whencA'er an injur}' has been occasioned by the
negligent conduct of a person in the service of another, the master
is answerable for it ; and this is for the purpose of inducing those
who employ others to take care that they emplo}' proper persons. The
defendant pleads, first, that the horse and carriage were not his, and,
secondly', that the servant was not his servant ; but it has been clearly
proved by the witnesses on the part of the defendant, that the carriage
was the defendant's, and that the person driving it was his servant.
But in addition to these he has pleaded, thirdl}', that the horse and
carriage at the time of the injury were not in the emplo}' of the defend-
ant, but were improperl}' used b}' the servant for purposes of his own ;
and evidence has been given that the master directed the servant to
drive to the Red Lion, in Castle Street, Leicester Square, but that the
servant improperly drove to the Old Street Road, to deliver a parcel of
his own ; and the point has been put to the court, that inasmuch as it
is clear that the servant was not at that time engaged in his master's
business, this action cannot be maintained. But I am of opinion that
this action may be maintained. I think the law has been most properly
laid down by Mr. Baron Parke, in the case which has been cited. It is

SECT. II.] QUARMAN V. BURNETT. 125

quite clear that, if a servant without his master's knowledge takes his
master's carriage out of the coach-house, and with it commits an injury,
the master is not answerable ; and on this ground, that the master has
not entrusted tlie servant with the carriage. But whenever the master
has entrusted the servant with the control of the carriage, it is no answer
that the servant acted improperh' in the management of it. If it were,
it might be contended that if a master directs his servant to drive
slowly, and tlie servant disobeys his orders, and drives fast, and
through his negligence occasions an injury, the master will not be
liable. But that is not the law : the master in such a case will be
liable, and the ground is, that he has put it in the servant's power to
mismanage the carriage, by entrusting him with it. And in this case,
I am of opinion that the servant was acting in the course of his emplo}--
ment, and till he had deposited the carriage in the Red Lion Stables,
in Castle Street, in Leicester Square, the defendant was lial)le for any
injury which might be committed through his negligence. After read-
ing the evidence and observing on the question of negligence, His
Lordship left the case to the jury, who found a

Verdict for the plaintiff — damages, £25.

TFi7(7e, Serjt., and Ghannell^ for the plaintiflf.

Slade, for the defendant.

QUARMAN V. BURNETT.

Exchequer. 1840.
[6 M. cj- W. 499 ]

Case. The declaration stated, that the plaintiff, on the 21st
December, 1838, was possessed of a carriage, to wit, a chaise of
great value, &c., and of a horse then drawing the same, in which
said carriage the plaintiff was then riding : and that the defendants
were also possessed of a carriage, to wit, a chariot, to which said car-
riage of the defendants were harnessed two horses, and which said
carriage and horses loere then under the care of the defendants.
Nevertheless the defendants so carelessh' &c. conducted themselves
in the premises, that by and through the mere carelessness, negligence,
want of proper caution, and improper conduct of the defendants in that
behalf, the said horses so harnessed to the carriage of the defendants
started off with the said carriage, without a driver or other person to
manage, govern, or direct the same, whereby the said carriage of the
defendants then ran and struck with great force against the said carriage
of the plaintiff, and thereby' greatly crushed and injured the same,
and the plaintiff was thrown with great force and violence out of his
carriage upon the ground, c&c, &c.

Pleas, first, not guilt}' ; secondly, that the said carriage and horses in

126 QUARMAN V. BURNETT. [CHAP. IL

the declaration mentioned, or either of them, were not under the care
of the defendants, or either of them, in manner and form, &c. ; upon
which issues were joined.

At the trial before Maule, B., at the Middlesex Sittings in last
Michaelmas Term, the following appeared to be the matei-ial facts of
the case : —

The defendants are elderly ladies resident in Moore Place, Lambeth,
keeping a carriage of their own, but hiring horses and a coachman
from a job-mistress of the name of Mortlock. They generally had the
same horses, and always the same coachman, a man of the name of
Kemp (the only regular coachman in Miss Mortlock's employ), to
whom the}' paid 2s. for each drive, having told him when they first set
up their own carriage, three years ago, that the}' would pay him that
sum. He received regular weekl}' wages from Miss Mortlock. The
defendants sometimes took the coachman and horses into the country
for several weeks, when the}' paid him a certain sura per week. They
had a plain coachman's coat and a liver}' hat, for which Kemp was
measured, and which he wore when driving the defendants, and took off
on his return to their house, where the coat and hat were hung up in
the passage. On the 21st December, 1838, he went into the defend-
ants' bouse to pull off the hat (he did not wear the coat that day,
having his own box coat on), and left no one in the charge of the horses :
they started off, ran against the plaintiff's chaise, which was drawn up
on the side of the footpath, threw him out, and seriously injured him,
and damaged the chaise.

This being the state of facts, it was contended for the defendants
that Kemp was, under the circumstances, the servant not of the de-
fendants, but of the job-mistress, and that the defendants were not
responsible. The following cases were referred to : Laugher v.
Pointer, 5 B. & C. 547 ; Smith v. Lawrence, 2 Man. & R. I. ;
Brady v. Giles, 1 M. & Rob. 494; Fenton i-. Dublin Steam Packet
Co., 8 Ad. & i:. 835; 1 P. «fe D. 103; Randleson v. Murray, 8
Ad. & E. 109 ; 3 N. & P. 239. The learned Judge thought there
was evidence to go to the jury, but gave the defendants' counsel
leave to move to enter a nonsuit: it appearing to him that there was
some evidence that the carriage was under the defendants' care, both
in respect of their choosing this particular coachman, and also in
respect of his having gone to put back their hat, and left the carriage
unattended to. And he told the jury that if the coachman was, at the
time the horses ran away, acting as the servant of the defendants,
they were liable : and that he thought he was acting as such servant, if
the job-mistress appointed him specially at the defendants' desire, or if
in putting back his hat he acted for the defendants. The jury found a
verdict for the plaintiff, damages 198Z. 9.s.

Kelly having obtained a rule nisi for entering a nonsuit, pursuant to
the leave reserved,

Thomas (Sir F. Pollock with him) showed cause.

Channell, Serjt. (Kelly with him), in support of the rule.

SECT. II.] QUARMAN V. BURNETT. 127

Parke, B.^ On tlie argument, in the course of which the principal
authorities were referred to, we intimated our opinion that we should
be called upon to decide the point which arose in the case of Laugher
V. Pointer, and upon which not only the Court of King's Bench, but the
twelve Judges differed ; as the special circumstances above mentioned
did not seem to us to make any difference ; and we are still of opinion
that they did not. It is undoubtedly true that there may be special
circumstances wiiich may render the hirer of job-horses and servants
responsible for the neglect of a servant, though not liable by virtue of
the general relation of master and servant. He may become so by his
own conduct, as by taking the actual management of the horses, or
ordering the servant to drive in a particular manner, which o(?casions
the damage complained of, or to absent himself at one particular mo-
ment, and the like. As to the supposed choice of a particular servant,
ray Brother Maule thought there was some evidence to go to the jury,
of the horses being under the defendants' care, in respect of their choos-
ing this particular coachman. We feel a difliculty in saying that there
was any evidence of choice, for the servant was the only regular coach-
man of the job-mistress's yard ; when he was not at home, the defend-
ants had occasionall}' been driven hy another man, and it did not
appear that at any time since the3' had their own carriage, the regular
coachman was engaged, and they had refused to be driven by another ;
and the circumstance of their having a liver}', for which he was meas-
ured, is at once explained b}' the fact, that he was the only servant of
Miss Mortlock ever likel}- to drive them. Without, however, pro-
nouncing any opinion upon a point of so much nicety, and so little defined,
as the question whether there is some evidence to go to a jury, of an}'
fact, it seems to us that if the defendants had asked for this particular
servant, amongst many, and refused to be driven by anj- other, the}'
would not have been responsible for his acts and neglects. If the driver
be the servant of a job-master, we do not think he ceases to be so by
reason of the owner of the carriage preferring to be driven by that par-
ticular servant, where there is a choice amongst more, any more than a
hack post-boy ceases to be the servant of an innkeeper, where a travel-
ler has a particular preference of one over the rest, on account of his
sobriety and carefulness. If, indeed, the defendants had insisted upon
the horses being driven, not by one of the regular servants, but by a
stranger to the job-master, appointed by themselves, it would have
made all the difference. Nor do we think that there is any distinction
in this case, occasioned by the fact that the coachman went into the
house to leave his hat, and might therefore be considered as acting by
their directions, and in their service. There is no evidence of any
special order in this case, or of any general order to do so, at all times,
without leaving any one at the horses' heads. If there had been any
evidence of that kind, the defendants might have been well consid-

* After stating the case. — Ed.

128 QUAEMAN V. BURNETT. [CHAP. n.

ered as having taken the care of the horses upon themselves in the
meanlinie.

Besides tliese two circumstances, the fact of the coachman wearing
the defendants' livery, witli their consent, whereby they were the
means of inducing third persons to believe that he was their servant,
was mentioned in the course of the argument as a ground of liability,
but cannot affect our decision. If the defendants had told the plaintiff
that lie might sell goods to their livery servant, and had induced liim to
contract with the coachman, on the footing of his realh' being such
servant, the}' w'onld have been liable on such contract: but this repre-
sentation can only conclude the defendants with respect to those who
have altered tlieir condition on the faith of its being true. In the
present case, it is matter of evidence only of the man being their
servant, which the fact at once answers.

We are therefore compelled to decide upon tlie question left unsettled
b}' the case of Laugher v. Pointer, in which the able judgments on both
sides have, as is observed by Mr. Justice Story in his Booiv on Agenc}',
page 406, "exhausted the whole learning of the subject, and should
on that account attentiveh' be studied." We have considered them
full}', and we think the weight of authority, and legal principle, is
in favour of the view taken by Lord Tenterden and Mr. Justice
Llttledale.

The immediate cause of the injury is the personal neglect of the
coachman, in leaving the horses, which were at the time in his imme-
diate care. Tlie question of law is, whether any one but the coachman
is liable to the party injured ; for the coachman certainly is.

Upon the principle that qui facit per alium facit per se, the master is
responsible for the acts of his servant; and that person is undoubtedly
liable who stood in tiie relation of master to the wrong-doer — he who
had selected hira as his servant, from the knowledge of or belief in his
skill and care, and who could remove him for misconduct, and whose
orders he was bound to receive and obey ; and whether such servant
has been ap[)ointed by the master directly, or intermediately through
the intervention of an agent authorized by him to appoint servants for
him, can make no difference.

But the liability, by virtue of the principle of relation of master and
servant, must cease where the relation itself ceases to exist: and no
other person than the master of such servant can be liable, on the simple
ground that the servant is the servant of another, and his act the act of
another ; consequently, a third person entering into a contract with the
master, which does not raise the relation of master and servant at all, is
not thereby rendered liable ; and to make such person liable, recourse
must be had to a different and more extended principle, namely that a
person is liable not only for the acts of liis own servant, but for any in-
jury which arises by the act of another person, in carrying into execution
that which that other person has contracted to do for his benefit. That,
however, is too large a position, as Lord Chief Justice Eyre says in the

SECT. II.] MARTIN V. TEMPERLEY. 129

case of Bush v. Steinman, 1 Bos. & P. 404, and cannot be maintained to
its full extent without overturning some decisions, and producing conse-
quences which would, as Lord Tenterden observes, " shock the common
sense of all men ; " not merely would the hirer of a post-chaise, hackney-
coach, or wherry on the Thames, be liable for the acts of the owners of
those vehicles, if the^" had the management of them, or their servants, if
the}' were managed b}- servants, but the purchaser of an article at a shop,
which he had ordered the shopman to bring home for him, might be made
responsilde for an injur}' committed by the shopman's carelessness, whilst
passing along the street. It is true that there are cases — for instance,
that of Bush v. Steinman, Slj' v. Edgley, 6 Esp. 6, and others, and per-
haps amongst them may be classed the recent case of Randleson v.
Murray — in which the occupiers of land or buildings have been held
responsible for acts of others than their servants, done upon, or near,
or in respect of their property. But these cases are well distinguished
by my Brother Littledale in his \evy able judgment in Laugher v.
Pointer. . . .

It is unnecessary to repeat at length the reasons given b}- m}' Brother
Littledale for this distinction, which a[)pear to us to be quite satisfac-
tory ; and the general proposition referred to, upon which only can the
defendants be liable for the acts of persons who are not their servants,
seems to us to be untenable. We are therefore of opinion that the de-
fendants were not liable in this case, and the rule must be made abso-
lute to enter a verdict for the defendants on the second issue.

Hule absolute.

MARTIN V. TEMPERLEY.

Queen's Bench. 1843.

[4 Q. B. 298.]

The declaration stated that, whereas plaintiff, on etc., before and at
the time of the grievance hereinafter mentioned, was lawfully pos-
sessed of a certain boat of great value, to wit, etc., then lawfully being
in the River ThaiTies ; and defendant was also then possessed of two
barges in the same river, and then had the care, direction and manage-
ment of the same ; yet defendant, not regarding his duty in that behalf,
whilst the said boat of plaintiff so was in the River Thames aforesaid,
to wit on etc., took so little and such bad care of, and so carelessly,
negligently and improperly managed, governed and directed his said
barges, that one of them, by and through the carelessness, misdirection
and mismanagement, negligence and improper conduct of defendant
and his servants in that behalf, then with great force and violence ran
foul of and struck against the said boat or vessel of plaintiff, and
thereby then greatly broke, damaged and injured the same ; and by

130 MARTIN V. TEMPEKLEY. [CHAP. II.

means of the premises the said boat of phiiiitiff then became and was
filled with water, and sunk in the said river ; and thereby- divers goods
and chattels, to wit etc. (special damage from tlie loss of goods on
board, expense of repairs and deprivation of the use of the vessel,
and other expenses in respect of goods on board, and of the vessel).

Pleas. 1. Not guilty. 2. That defendant had not, at the time of
the committing, etc., the care, direction, or management of the two
vessels or barges, or either of them ; conclusion to the country. Issue
thereon.

On the trial, before Lord Denman, C. J., at the London sittings
after Hilar}' term, 1842, it appeared that the defendant had hired by
the year two barges mentioned in the declaration from one Covington,
who was the owner of the barges and a freeman of the Company of
Watermen and Lightermen, incorporated by Stat. 7 & 8 G. 4, c. 75,
§ 4, that it was usual to hire barges in this manner ; and that the barges
so hired were entirely under the control of the persons hiring them.
The accident occurred within the limits named in the title of the act,
and was occasioned by the two barges, which at the time were lashed to-
gether, coming into collision with the plaintiff's boat. The barges
were at that time under the management of two men named Wickings
and Martin. Martin was a freeman of the Company' of Watermen
and Lightermen, and AVickings was an apprentice to his own brother,
Joseph Richard Wickings. J. R. Wickings was a freeman of the com-
pan\', and foreman to the defendant ; he was paid b}' the defendant
weekly ; and he had let out himself and his apprentice by the week.
He hired Martin for the particular job, and was also paid bj' the de-
fendant for what Wickings the apprentice did, by the job. The de-
fendant's counsel contended that the defendant was not liable for the
damage, inasmuch as he was bound to emplo}' onh' persons authorized
to navigate, under Stat. 7 & 8 G. 4. c. 75, § 37. A copy of the by-laws,
made under § 57 of the statute, was put in ; by the 25th of which it was
ordained that, during all the time that an}' barge, &c., should be navi-
gating or passing along the river within the limits, one able and skilful
man, authorized by law, should be constantly on board the same, for
the navigation and management thereof; and, if the owner or owners
of an}' such barge, «Scc., should permit or suffer the same to pass along
any part of the limits aforesaid without having at least one such able or
skilful man or other person, authorized as aforesaid, to navigate the same,
he or they, or any of them, should forfeit for every such offence 40s. ;
and, if the person or persons on board should quit or leave the barge,
&c., at any time during the navigation or passage through the limits,
he or they should forfeit and pay for every such offence 40s. ; and it
should be lawful for any harbor-master and his assistants to remove
the said barge, &c. ; and the charges and expenses thereof respec-
tively should be paid by the owner or owners or master thereof. It
appeared that there were about six thousand freemen and apprentices.
The jury being of opinion that negligence was proved, the Lord Chief

SECT. II.] MARTIN V. TEMPERLEY. 131

Justice directed a verdict for the plaintiff, giving leave to move for a
nonsuit, or a verdict for the defendant on the second plea. In Easter
term, 1842, Richards obtained a rule nisi for a nonsuit or verdict for
defendant, or for a new trial.

Thesiger and Bovill now showed cause.

R. V. Michards and Peacock, contra.

Lord Denman, C. J. It is quite clear that the defendant is the party
liable. In the first place, every man is liable for the misconduct of his
servants ; and, in the second, the men here undoubtedly were the ser»
vants of the defendant ; and men so employed are even called servants
in Stat. 7 & 8 G. 4. c. 75, § 102. But a question is made, whether the
limitation of the defendant's power of choice deprived the party injured
of the remedy against him. I cannot think it can be reasonably con-
tended that it does : the inconvenience would be enormous. Mr. Bo-
vill's argument on the statute respecting apprentices bears very strongly
on the point. Before the repeal on that statute, persons could not be
cmplo3ed in trades without having been apprenticed ; the selection
therefore was limited just as much as here. Sect. 89, of Stat. 7 & 8
G. 4. c. 75 makes an unskilful navigator liable, to the amount of £5,
for the mischief he ma}' do ; but he is not touched in this respect by
any other provision of the act. The decision of Dr. Lushington in The
Maria, 1 W. Rob. Adm. R. 95, cannot be applied to this case. Dr.
Lushington must be understood as assuming that the master was there
bound to take the first licensed pilot who offered himself He clearly
considers that, under § 6 of the Newcastle Pilot Act, 41 G. 3. (U. K.)
c. 86, the master of the ship, being foreign, was bound to take the pilot
on board, without any power of selection ; and indeed in the case of a
foreign vessel in a strange port there could seldom be anj' ground for
preferring one pilot to another, and therefore little practical power of
selection, even if two or three offered themselves at the same time.
The rule of respondeat superior is not impeached : the onl}- question
is who is the superior. Under Stat. C G. 4. c. 125, the authority of the
master is absolutely superseded by that of the pilot. Milligan v. "Wedge,
12 A. & E. 737, has been fairly pressed upon us; but the distinction
between that case and the present is clear. The drover there was pur-
suing a separate trade : to dri-'e the bullocks was no part of the butch-
er's business : he had only to select the licensed drover, who was the
person that set in motion the servant whose negligent driving did the
mischief ; and the owner of the bullock had no longer any control over
it. In the present case it was otherwise ; and therefore our decision
here is not inconsistent with that in Milligan v. Wedgo.

Patteson, J. I am of the same opinion. The first question is,
whether the relation of master and servant existed between the defend-
ant and those managing his barges ; and next, if it did, whether there
be anything in Stat. 7 «& 8 G. 4, c. 75 that prevents the legal conse-
quences following from such a relation. On the part of the defend-
ant it is argued, without reference to the statute, that this is the case

132 MAKTIN V. TEMPEKLEY. [CHAF. IL

not of master and servant, but of an independent contract to perform
the work, as in Milligan v. Wedge and Quarman v. Burnett, 6 M. & W.
499. But tliat is clearly erroneous. Independently of the act, the men
navigating the barges would clearly be the defendant's servants. If
the defendant, being at libert}' to employ whom he pleased, engaged
persons to manage his barges on the Thames, I cannot see how it is
possible to contend that thej' were not his servants as much as a man
whom he might employ to drive his carriage. Where, indeed, a man
hires another man's servant from him, though such servant be em-
plo3'ed to drive w'here the person hiring pleases, it has been held in
Quarman r. Burnett, that the servant so hired is not the servant of the
person so hiring. That case certainly carried the exception a great
way ; but there the servant hired was ordinarily in the employment of
the person from whom he was hired, and who let horses along with the
driver. That case is not like the present. The second question, then,
is as to the effect of Stat. 7 & 8 G. 4. c. 75. That indeed confined the
defendant to employing as his servants onl}" individuals of a particular
class. It narrowed the number of persons from whom he could select.
But that is very different from the state of things created b}' the Pilot
Act, where a party must take the first pilot who offers himself. Here
the defendant had the power of selection, though from a limited num-
ber, and no case has gone so far as to decide that the person hired
ceases to be the servant of the person hiring if he is necessarily se-
lected from a number, though limited. I was much struck with the
argument deduced from the old Statute of Apprenticeship. According
to the doctrine contended for on the part of the defendant, it would
hardly have been possible, while that act was in force, to employ a man
as a servant. I do not» put the case on the largeness of the number
from which the selection may here be made ; the principle seems to me
the same whether the number be five hundred or five thousand. If
there be a power of selection, and not, as in the Pilot Act, a provision
preventing an}' choice, the person hired is the servant of the person
hiring. At first I felt the diflncult}- raised I)v Lucey v. Ingram, 6 M.
& W. 302. That case, however, was decided on the words of the Pilot
Act, 6 G. 4. c. 125. It is true that the defendant there came within
the exemption of § 63 of the Act, and was not obliged to take a pilot.
But the pilot, under § 72, was compelled to act when called upon ; and
the court rested their decision on the precise words of § 55, which
"exempts the owner from responsibility in respect of accidents hap-
pening by reason of the default of any pilot, acting under or in pursu-
ance of the provisions of the Act" (6 M. & W. 316) ; and they held
that the pilot was so acting, whether the owner was compelled to em-
plo}' him or not. And thev conclude as follows. " The case before
us is clearly within the words of the exempting clause ; and we must
therefore hold it to be within its spirit and meaning, unless (which is
not the case) some manifest inconvenience or inconsistency should result
from our so doing." The decision, so explained, is inapplicable to the
present question.

SECT. II.] MARTIN V. TEMPERLEY, 133

Coleridge, J. Though this case has been argued at some leugth
and with much ingenuity, the point is not difficult. Tlie question is,
were the defendant and the persons emplo3ed by him master and
servants? If they were, the general i)rinci[jle applies. And the tests
leave no doubt that they were. First, the men were selected bj' the de-
fendant ; secondly, they were paid by him ; thirdly, they were doing
his work ; fourthly, they were under his control, that is, in doing the
work in the ordinary wa}-. It is said that a difference arises where the
workman is paid so much for doing the whole job. But the defendant
might pay either for a given time or a given work ; and the men here
were as much under the defendant's control as a gentleman's coachman
is under that of his master. The master cannot order the coachman to
do an illegal act, as to drive furioush', or on the wrong side. But, sub-
ject to that, the master has the control over the coachman. So here
the defendant had the control over tiie persons navigating the barge,
subject to the rules of the river. The}- are, principally, selected by
him. Suppose the owner of a barge, seeing a number of watermen on
the side of the river, chose to hire one who was incompetent, would not
he have made the selection? Then, if the men here were the defend-
ant's servants, on what grounds is the defence put? On two only. First,
that the defendant was bound to select from a particular class ; secondly,
that he was not allowed to do the work for himself. But neither of
these grounds is sufficient. As to the first, it is true that the defendant
w^as bound to select from a class ; and so we all practicalh' are limited
by the necessit}' of choosing persons of skill and fitness ; but, if we
can choose from a class, whether large or small, our contract places us
in the situation of a party responsible for the acts of those whom he
does choose. And, as to the defendant not being able to do the work
for himself, the law, for the public safet}', imposes a qualification, and
makes the apprenticeship a test of fitness. Though the defendant was
obliged to employ one qualified person, he still made those whom he
did employ his servants by the contract. Both grounds of defence
therefore fail. Mule dUcharged.

134 KEEDIE V. LONDON AND NORTH WESTERN RY. CO. [CHAP. IL

REEDIE V. LONDON AND NORTH WESTERN RAILWAY

COMPANY.

HOBBIT V. LONDON AND NORTH WESTERN RAILWAY

COMPANY.

Exchequer. 1849.

[4 Exch. 244.]

This was an action by the widow and administratrix of a person who
was killed while passing under a viaduct in course of construction, as
part of a railway from Leeds to Dewsbury. The action was brought
to recover compensation, for the benefit of herself and her children
under the provisions of the 9 «& 10 Vict. c. 93. The declaration stated
that the defendants were possessed of a viaduct over the Gomersall
and Dewsbury turnpike-road, such viaduct being part of a railway then
in course of construction between Dewsbury' and Leeds ; yet the
defendants conducted themselves in making the said archway over the
said turnpike road so negligently that, by reason thereof, a large
stone, parcel of the materials used in the construction of the said arch-
way, fell on the plaintiffs husband as he was passing along the road,
whereby he was killed.

The pleas were first, not guilty ; secondly, that the defendants were
not making the said archwaj' in manner and form, &c. Upon which
pleas issues were joined. At the trial, before Cresswell, J., at the
last York Summer Assizes, the material facts proved were as follows :
On the 30th of June, 1845, an Act of Parliament, intituled "The
Leeds, Dewsbury, and Manchester Railway- Act, 1845," received the
Royal assent. B}' the provisions of that Act, a compan}' was incorpor-
ated in the usual wa}", for the purpose, among other objects, of forming
the railway in question. By an indenture, dated the 29th of Septem-
ber, 1846, made between the company of the one part, and Joseph
Crawshaw and Richard Crawshaw of the other part, the Messrs. Craw-
shaw covenanted with the company that the}' would, in consideration
of a sum of £55,000, to be paid as therein mentioned, make and com-
plete a portion of the railway described in the indenture, of the length
of 3830 yards, or thereabouts, with all excavations, embankments,
bridges, tunnels, viaducts, roads, fences, and other works connected
therewith, according to the specification referred to. Amongst other
stipulations in the deed, it was provided that the works were to be
done b}' the contractors ; but the company had a general right of watch-
ing the progress, and, if the contractors employed incompetent work-
men, the compan}' had the power of dismissing them. Under this
contract, Messrs. Crawshaw proceeded to execute tlie works, and,
while they were in progress, viz. on the 9th July, 1847, another Act

Sf:CT. II.] REEDIE V. LONDON AND NORTH WESTERN RY. CO. 135

received the Royal assent, wherein' it was enacted, that the said Leeds,
DewshiiiT, and Manciiesler Railway*, with all and singular tlie under-
takings thereof, as well those which had been commenced as those
which had not, and all the real and personal estate of the said com-
pany, should (subject to the existing debts, liabilities, and contracts of
the same company) be vested in the London and Nortli Western Rail-
way Company, and might be lawfull}- executed, completed, held,
and enjoyed by them, in the same way as they might have been ex-
ecuted, completed, held, and enjoyed b^- the said Leeds, Dewsbur}',
and Manchester Company if that Act had not passed. After the pass-
ing of tliis second Act, Messrs. Crawshaw continued to proceed with
their work, and in the course of it, by the negligence of some of the
contractor's workmen, a heav}' stone fell from a travelling truck upon
the plaintiffs husband, who was passing along the road underneath,
and occasioned his death. Upon these facts, a verdict was found for
the plaintiff, leave being reserved for the defendants to move to enter
a nonsuit, if the court should be of opinion that the action would not
lie.

A rule nisi having been obtained accordingh', against this rule, in
Hilary Vacation last (February 13 and 14), cause was shown by

3Ia)'tin, Pickering, and //. Hill.

Knowles, and Hall, in support of the rule. Cur adv. vult.

The judgment of the court in the preceding cases was now given by
RoLFE, B. (His Lordship after stating the pleadings and facts in
Reedie v. The North Western Railway Company, as above set forth,
proceeded): — It appears to us quite clear, that after the passing of
the second act, the contract with Messrs. Crawshaw was transferred to
the present defendants, so as to make them liable to the same extent
precisely, as the original Leeds, Dewsbur}-, and Manchester Company
would have been liable, if the second act had not passed. But, after
full consideration of the subject, we are of opinion that neither the
defendants nor the original company are liable.

In the case of Quarman v. Burnett, this court decided (adopting the
opinion of Lord Tenterden and Mr. Justice Littledale, in Laugher v.
Pointer), that the liability to make compensation for an injury arising
from the neglect of a person driving a carriage, attaches onlj- on the
driver, or on the person employing him. The liability of any one,
other than the party actually guilty of any wrongful act, proceeds on
the maxim, " Qui facit per alium facit per se." The party employing
has the selection of the party employed, and it is reasonable that he
who has made choice of an unskilful or careless person to execute his
orders, should be responsible for any injury resulting from the want of
skill or want of care of the person employed ; but neither the principle
of the rule, nor the rule itself, can apply to a case where the party
sought to be charged does not stand in the character of employer to
the party by whose negligent act the injury has been occa«ione4-

136 REEDIE V. LONDON AND NORTH WESTERN RY. CO. [CHAP. IL

The doctrine of Quarman v. Burnett has since been acted on in this
court, in the ease of Rapson v. Cubitt, and in the court of Queen's
Bench, in Milligan y. Wedge, and again in Allen v. Hayward.

By these authorities we must consider the law to have been settled ;
and the only question is, whether the law, so settled, is applicable to
the facts of this case.

To show it was not, it was argued b}- the counsel for the plaintiff,
that there is a recognized distinction on this subject between injuries
arising from the careless or unskilful management of an animal, or
other personal chattel, and an injury resulting from the negligent
management of fixed real property. In the latter case, it was con-
tended, the owner is responsible for all injuries to passers-b}' or others,
howsoever they ma}' have been occasioned ; and here it was said the
defendants were, at the time of the accident, the owners of the railway,
and so are the parties responsible.

This distinction as to fixed real property is adverted to by Mr. Jus-
tice Littledale, in his very able judgment in Laugher v. Pointer,
5 B. & C, at pages 559 and 560 ; and it is also noticed in the judgment
of this court, in Quarman v. Burnett. But in neither of these cases
was it necessar}' to decide whether such a distinction did or did not
exist. The case of Bush v. Steinman, where the owner of a house wa.s
held liable for the act of a servant of a sub-contractor, acting under a
builder employed by the owner, was a case of fixed real property.
That case was strongl}- pressed in argument in support of the liabilit}-
of the defendants, both in Laugher v. Pointer and Quarman v. Burnett;
and as the circumstances of those two cases were such as not to make
it necessary' to overrule Bush xk Steinman, if any distinction in point
of law did exist, in cases like the present, between fixed property and
ordinary movable chattels, it was right to notice the point. But, on
full consideration, we have come to the conclusion, that there is no
such distinction, unless, perhaps, in cases where the act complained of
is such as to amount to a nuisance ; and in fact, that, according to the
modern decision, Bush v. Steinman must be taken not to be law, or, at
all events, that it cannot be supported on the ground on which the
judgment of the court proceeded.

It is not necessary to decide whether, in any case, the owner of real
property, such as land or houses, ma}' be responsible for nuisances
occasioned b}' the mode in which his property is used by others not
standing in the relation of servants to him, or part of his family. It
may be that in some cases he is so responsible. But then his liability
must be founded on the principle that he has not taken due care
to prevent the doing of acts which it was his dut}' to prevent, whether
done by his servants or others. If, for instance, a person occupyijig a
house or a field should permit another to carry on there a noxious trade,
so as to be a nuisance to his neighbors, it may be that he would be
responsible, though the acts complained of were neither his acts nor the
acts of his servants. He would have violated the rule of law, " Sic

SECT. II.] REEDIE V. LONDON AND NORTH WESTERN RY. CO. 137

utere tuo ut alienum iion licdas." This is referred to by Mr. Justice
Cresswell, in delivering the judgment of the Court of Common Bench, in
Rich V. Basterfield, 4 C. 1>. iJep. 802, as the principle on which parties
possessed of fixed property' are responsible for acts of nuisance
occasioned by the mode in which the property is enjoyed. And,
possibly, on some such principle as this, the case of Bush v. Steinman
may be supported. But certainly that doctrine cannot be applied to
the case now before us. The wrongful act here could not in any
possible sense be treated as a nuisance. It was one single act of
negligence ; and, in such a case, there is no principle for taking any
distinction b}' reason of the negligence having arisen in reference to
real and not to personal property.

If the defendants had employed a contractor, carrying on an inde-
pendent business, to repair their engines or carriages, and the con-
tractor's workmen had negligently caused a heavy piece of iron to fall
on a b3"stander, it would appear a strange doctrine to hold that the
defendants were responsible. Mr. Justi<e Littledale, in his very able
judgment in Laugher v. Pointer, observed (5 B. & C. 558) that the
law does not recognize a several liability in two principals who are
unconnected ; if they are jointly liable, you may sue either, but you
cannot have two separately liable. This doctrine is one of general
application, irrespective of the nature of the employment; and, appl}'-
ing the principle to the present case, it would be impossible to hold
the present defendants liable, without the same time deciding that
the contractors are not liable, which it would be impossible to be
contended.

It remains onl}' to be observed that in none of the more modern
cases has the alleged distinction between real and personal property
been admitted. In Milligan v. Wedge, Lord Denman expresses doubt
as to the existence of such a distinction in any case ; and, in the more
recent case of Allen v. Hayward, the judgment of the court proceeded
expressly on the ground that the contractor, in a case like the present,
is the onl}' party responsible. The last case so closely resembles the
present that, even if we had not considered the decision right, we
should probably have felt bound by it. But we see no reason to doubt
its perfect correctness. It seems to follow as a necessar\' corollary
from the principles of the preceding cases, and entirelj' to govern
this.

Our attention was directed during the argument to the provisions
of the contract, whereby the defendants had the power of insisting on
the removal of careless or incompetent workmen, and so it was con-
tended the}' must be responsible for their non-removal. But this
power of removal does not seem to us to var^' the case. The workman
is still the servant of the contractor onl}', and the fact that the defend-
ants might have insisted on his removal if the}' thouglit him careless
or unskilful did not make him tlieir servant. In Quarman v. Burnett
the particular driver was selected by the defendants ; but this was held

188 MAY V. BLISS AND EVERETT. [CHAP. IL

not to affect the liability of the driver's master, or to create an}- respon-
sibility in the defendants; and the same principle applies here. On
these grounds we are of opinion that tiiis rule must be made absolute.

Mule absolute.

MAY V. BLISS AND EVERETT.

Supreme Court of Vermont. 1850.

[22 Vt. 477.]

Trespass for taking a quantit}^ of boards. The defendant Everett
being an infant, under the age of twenty-one years, a guardian ad
litem was appointed, at whose request judgment was rendered against
him, as by default. The defendant Bliss pleaded the general issue.
Trial by the court, December Term, 1849, Redfield, J., presiding.
It appeared that one Homer, who occupied a saw mill, sawed boards
for Bliss, which were afterwards piled in the mill yard. The plaintiff
also owned boards, which were piled near the boards of Bliss. Bliss
sent Everett, who was his hired man, with a team, to draw away his
boards, and directed him to call upon Homer, and he would inform
him which boards belonged to Bliss. Everett called upon Homer, who
gave such directions to him that he took away all the boards of Bliss
and also the boards of the plaintiff, supposing he was following the
directions of Homer, and that he was taking the boards of Bliss and
none other. Subsequentl}-, upon inquiry being made b}' the plaintiff,
Bliss became satisfied that he had the plaintiff's boards, and he sent
word to the plaintiff that he had found an excess among his boards of
980 feet, which he would draw back to the plaintiff, or pa}' him for
them the price of poor hemlock. The number of feet of the plaintiff's
boards which were taken was nearl}' 2,000, of a poor qualit}' of pine,
but much more valuable than hemlock. Bliss, also, at some time, told
the plaintiff that if he would examine the boards drawn by Everett,
and find those belonging to him among them, he would draw them
back, or account for them ; but the plaintiff declined making the ex-
amination, upon the ground, as the court inferred, that he did not
suppose that either he or Bliss could determine which boards had
belonged to the plaintiff. There was testimon}' tending to prove that
Bliss had kept on hand about 1,*200 feet of the boards drawn b}'
Everett, and which he supposed were those which had belonged to
the plaintiff, and that they were still read}' to be delivered to the
plaintiff. The testimony was not entirely satisfactory as to whether
there were not more of the plaintiff's boards taken by Everett. The
court decided that Bliss, having sent his hired man to follow such
instructions as he might receive from Homer, and he having received
such instructions as induced him to take away the plaintiff's boards, it

SECT II.J PHILADELrillA AND READING R. R. CO. V. DERBY. 139

was the same as if Bliss had given the instructions himself, and that
BHss was responsible, whether the fault were in Homer, in not giving
sufficiently specific instructions, or in Everett, in not properly appre-
hending or not following them, the same as if Bliss had done the whole
himself and taken the plaintiff's boards b\' mistake. Judgment was
according!}- rendered for the plaintiff for the value of the boards taken.
Exceptions by Bliss. Damages were assessed against Everett equal to
the amount of the damages for which judgment was rendered against
Bliss.

Ormsbt/, for defendant.

Parker^ for plaintiff.

By the Colkt. We think the decision of the court below upon the
main question of the liability of Bliss, and the reasons assigned in the
bill of exceptions, are correct. Indeed the question as to the partici-
pation of Bliss in the act of Everett is chiefly matter of fact ; and the
case having been tried by the court, and they having found his partici-
pation, it is difficult to revise that decision in the matter of law, without
reversing also the finding of the ftxcts. But to the extent of the reasons
stated by the County Court, this court sec no reason to doubt tiieir per-
fect soundness.^ Judymetd affirmed.'^

PHILADELPHIA & READING RAILPOAD COMPANY,

l*LAiNTiiF IN P2kror, V. DERBY,

SuPRElttE Court of the United States. 1852.
[14 How. 468.]

This case was brought up, by writ of error, from the Circuit Court
of the United States for the Eastern District of Pennsylvania.

It was an action on the case brought b}- Derby for an injury suffered
upon the railroad of the plaintiff in error.

The declaration, in ten counts, was, in substance, that on the 15th
day of June, 1848, the defendants, being the owners of the railroad, and
of a certain car engine called the Ariel, received the plaintiff into the
said car, to be safely carried therein, upon, and over the said railroad,
whereby it became the duty of the defendants to use proper care and
diligence that the plaintiff should be safely and securely carried, yet,
that the defendants not regarding their duty in that behalf, conducted
themselves so negligently by their servants, that, by reason of such
negligence, while the car engine Ariel was upon the road, and the
plaintiff therein, he was precipitated therefrom upon the ground, and
greatly injured. Defendants pleaded not guilty.

^ A passage as to procedure is omitted. — Ed.

2 See Andrusi;. Howard, 36 Vt. 248 (186.3). — Ed.

140 PHILADELPHIA AND READING R. R. CO. V. DERBY. [CHAP. XL

On the 22d of April, 1851, the cause came on to be tried, and the
evidence was, in substance, as follows : — -

In the month of June, 1848, the plaintiff, being a stockholder in the
said railroad compan}', came to the city of Philadelphia, for the purpose
of inquiring into its affairs, on his own account and as the representa-
tive of other stockholders. On the 15th of June, 1848, the plaintiff
accompanied John Tucker, Esq., the president of the said company,
over the railroad, for the purpose of viewing it and the works of the
compan}'.

They proceeded in the ordinary passenger train of the company from
the cit}' of Philadelphia (the plaintiff paying no fare for his passage) as
far as the cit}' of Reading.

On arriving at Reading, the plaintiff inspected the machine-shops
of the defendants there situate, and remained for that purpose about
half an hour after the departure of the passenger train towards Potts-
ville, which latter place is about the distance of ninety-two miles from
Philadelphia.

By order of Mr. Tucker, a small locomotive car engine called the
Ariel was prepared for the purpose of carrying the plaintiff and Mr.
Tucker further up the road. This engine was not constructed or used
for the business of the said defendants, but was kept for the use of the
president and other officers of the company*, their friends and guests.

On this engine, the plaintiff and Mr. Tucker, accompanied by the
engineer and fireman, and a paymaster of defendants, proceeded, fol-
lowing the passenger train, until they reached Port Clinton, a station
on the line of the railroad.

After leaving Port Clinton, when about three miles distant from it,
going round a curve, the passengers on the Ariel saw another engine,
called the Lycoming, of which S. P. Jones was the conductor, ap-
proaching on the same track. The engineer of the Ariel immediately
reversed his engine, and put down the brake. Mr. Tucker, the plain-
tiff, and the fireman, jumped from the Ariel to avoid the impending
collision. After they had jumped the engineer also left the Ariel,
having done all he could do to stop it. The plaintiff, in attempting
to jump, fell, and received the injury of which he complains.

The engineer of the Lycoming, when he saw the approach of the
Ariel, reversed his engine and put down the brake. He did not leave
the Lycoming till affer the collision. At the time of the collision, the
Lycoming was backing. The engines were but slightlj' injured by it.

On the night of the 14th or the morning of the loth of June, a bridge
on the line of the railroad above Port Clinton was burnt. In consequence
of this, one of the tracks of the railroad was blocked up b}' empty cars
returning to the mines, and stopped by the destruction of the bridge.
For this reason a single track only could be used for the business of
the road between Port Clinton and the burnt bridge.

Lewis Kirk, an officer of the said company (master machinist and
foreman), went on in the passenger cars from Reading towards Potts-

SECT. II.] rillLADHLririA AND READING K. R. CO. V. DERBY. 141

ville, informing tlie plaintiff and Mr. Tucker that he would give the
proper orders to liave the track kept clear for the Ariel. On arriving
at Port Clinton he did give an order to Edward Burns, despatcher at
Port Clinton (an officer of said company, charged with the duty of
controlling the starting of engines), that no car should be allowed to
go over the road until he the said Kirk returned.

This order was communicated in express terms by Burns to Jones,
the conductor of the Lycoming. Jones replied that he would go, and
would take the responsibility, and, contrary- to his orders, did go up
the road towards the burnt bridge, and on his return met the Ariel,
and the collision ensued, as above stated. Jones had the reputation of
being a careful and competent person, no previous disobedience of
orders by him had ever occurred, and he was discharged by the defend-
ants immediateh' after the accident, and because of it.

On the trial the plaintiff below requested the court to charge the
JHi-y : —

I. That if the plaintiff was lawfully upon the railroad of the defend-
ants at the time of the collision, b3' the license of the defendants, and
was then and there injured b}' the negligence or disobedience of orders of
the compan3-'s servants, then and there employed on the said railroad,
the defendants are liable for the injury done to the plaintiff by such
collision,

n. That if the defendants, by their servants, undertook to convey
the plaintiff along the Reading Railroad, in the car Ariel, and while so
conveying him, through the gross negligence of the servants of the
company then and there employed on the said railroad, the collision
occurred by which the plaintiff was injured, that the defendants are
liable for the injury done to the plaintiff b\' such collision, although
no compensation was to be paid to the company- for such convey-
ance of the plaintiff.

III. That if the collision, by which the plaintiff was injured, was
occasioned by the locomotive Lycoming, then driven negligentl}- or in
disobedience of orders upon the said road by J. P. Jones, one of the
company's servants, then having control or command of the said loco-
motive, that the defendants are liable for the injur}' to the plaintiffs,
caused by such collision.

And the counsel for the defendants below requested the court to
charge the jury : —

1. That the damages, if any are recoverable, are to be confined to
the direct and immediate consequences of the injur}- sustained.

2. That if the jury believe the plaintiff" had paid no fare, and was
passing upon the railroad of the defendant as an invited guest, in order
to entitle him to recover damages he must prove gross negligence, which
is the omission of that care which even the most thoughtless take of
their own concerns.

3. That the defendants would be liable in damages to a passenger
who had paid passage-money upon their contract to deliver him safely,

142 PHILADELPHIA AND READING R, R. CO. V. DERBY. TCHAP. IL

for slight negligence, but to an invited guest, who paid no fare or
passage-money, the}' will not be responsible unless the jury believe that
there was not even slight diligence on the part of the agents of the
defendants.

4. That the employer is not responsible for the wilful act of his
servant.

5. That if the jury believe that the conductor of the engine Lyco-
ming wilfully, and against the express orders of the officer of the com-
pany communicated to him, by running his engine upon the track above
Poi't Clinton, caused the collision, the defendants are not responsible
for any injury or loss resulting from such wilful disobedience.

6. That if the jurj' believe that every reasonable and proper precau-
tion was taken to have the track of the railroad clear for the passage
of the Ariel, and collision ensued solely by reason of the wilful dis-
obedience of the conductor of the L3'coming, and of the express orders
dulv given by an agent of the company, the plaintiff cannot recover.

7. That if the jury believe that the conductor of the Lycoming, and
all the officers of the company in any wise connected with the collision,
were carefull}' and prudenth' selected, and that the collision ensued
and the injur}' resulted to the plaintiff, an invited guest, by the wilful
disobedience of one of them to an order duly communicated, then the
plaintiff cannot recover.

The learned judge charged the jury as requested, on all the points
offered by the plaintiff.

And the learned judge charged on the first and second points offered
by the defendants, as requested, and also on the third point of the
defendants, with the explanation, that though all the other agents of
the defendants acted with diligence, yet if one of the agents used no
diligence at all, then the defendants could not be said to have shown
slight diligence.

As to the fourth point, the learned judge charged as requested by the
defendants, with this explanation, that though the master is not liable
for the wilful act of his servant, not done in the course of his employ-
ment as servant, yet if the servant disobeys an order relating to his busi-
ness, and injury results from that disobedience, the master is liable,
for it is his duty to select servants who will obey. The disobedience
in this case is the ipsa 7iegligentia, for it is not pretended by the defend-
ants that the Lycoming was intentionally driven against the Ariel.

On the fifth, sixth, and seventh points of the defendants, the learned
judge refused to charge as requested.

The learned judge further said, that it is admitted that the plaintiff
was injured through the act of Jones, the conductor of the Lycoming,
that the plaintiff was lawfully on the road by the license of the defend-
ants ; then, in this view of the case, whether he paid fare or not, or
was the guest of the defendants, made no difference as to the law
of the case.

The jury found a verdict for the plaintiff, and assessed the damages
at three thousand dollars.

SECT. II.] PHILADELPHIA AND READING R. R. CO. V. DERBY. 143

A writ of error brought the case np to this court.

It was argued b^^ Mr. Campbell and Mr. Fisher, for the plaintiff in
error, and Mr. Birmeij and Mr. W/icwton, for the defendant in error.

Mr. JiisLice Grikr delivered the opinion of the court.^

The rule of i'espoudeat superior, or that the master shall be eiv-
ill}' liable for the tortious acts of his servant, is of universal applica-
tion, whether the act be one of omission or commission, whether negli-
gent, fraudulent, or deceitful. If it be done in the course of his
employment, the master is liable ; and it makes no difference that
the master did not authorize, or even know of the servant's act or
neglect, or even if he disapproved or forbade it, he is equalh' liable, if
the act be done in the course of his servant's employment. See Story
on Agenc}', § 452 ; Smith on Master and Servant, 152.

There may be found, in some of the numerous cases reported op
this subject, dicta which, when severed from the context, might seem
to countenance the doctrine that the master is not liable if the act of
his servant was in disobedience of his orders. But a more careful
examination will show that they depended on the question whether the
servant, at the time he did the act complained of, was acting in the
course of his employment, or, in other words, whether he was or was
not at the time in the relation of servant to the defendant.

The case of Sleuth v. Wilson, 9 Car. & Payne, 607, states the law in
such cases distinctly and correcth'. . . .'•^

Although, among the numerous cases on this subject, some may be
found (such as the case of Lamb v. Palk, 9 C. & P. 629) in which the
court have made some distinctions which are rather subtile and astute
as to when the servant may be said to be acting in the employ of his
master; yet we find no case wdiich asserts the doctrine that a master
is not liable for the acts of a servant in his employment, when the par-
ticular act causing the injury- was done in disregard of the general orders
or special command of the master. Such a qualification of the maxim
respondeat superior would, in a measure, nullify it. A large propor-
tion of the accidents on railroads are caused b}' the negligence of the
servants or agents of the company. Nothing but the most stringent
enforcement of discipline, and the most exact and perfect obedience to
every rule and order emanating from a superior, can insure safety to
life and property. The intrusting such a powerful and dangerous en-
gine as a locomotive to one who will not submit to control, and render
implicit obedience to orders, is itself an act of negligence, the " ccmsa
causans" of the mischief; while the proximate cause, or the ipsa
negligentia which produces it, may truh' be said, in most cases, to be
the disobedience of orders b}- the servant so intrusted. If such dis-

^ After stating the case and discussing the fact that the person injured was a
stockholder riding at the invitation of the company's jiresideut and as the company's
guest. — Ed.

2 Here Sleath i'. Wilson, ante, p. 122, was stated, and the opinion of Erskine, J«
ante, pp. 124-125, was quoted. — Ed.

144 MITCHELL V. CRASSWELLER. [CHAP. IL

obedience could be set up by a railroad company as a defence when
charged with negligence, the remed}' of the injured part}' would in most
cases be illusive, discipline would be relaxed, and the danger to the life
and limb of the traveller greatly enhanced. Any relaxation of the
stringent policy and principles of the law affecting such cases would be
highly detrimental to the public safety.

The judgment of the Circuit Court is therefore affirmed.^
Mr. Justice Daniel dissents from the decision of this court in this
cause, upon the ground that the said railroad company being a corpora-
tion, created by the State of Pennsylvania, is not capable of pleading
or being impleaded, under the 2d section of the 3d article of the Con-
stitution, in any of the courts of the United States ; and that therefore
the Circuit Court could not take cognizance of the controversy between
that corporation and the plaintiff in that court.

MITCHELL V. CRASSWELLER.
Common Pleas, 1853.

[13 C. B. 237.]

This was an action b}- husband and wife, to recover a compensation
in damages for injuries sustained by them through the alleged negligent
driving of the defendants' servant.

The first count of the declaration stated that, on the 8th of Sep-
tember, 1852, the defendants were possessed of a certain cart and
horse, which was being driven b^- and under the care and direction of
the defendants' servant ; and that, whilst the plaintiff Dorothj^ was
crossing a certain street in London, called Grafton Street, the defend-
ants, b}- their said servant, so negligently and improperly drove and
directed the said cart and horse along the said street, that the said cart
and horse ran against and struck the plaintiff Doroth}' with great vio-
lence, and threw her down, and the wheel of the said cart passed over
her ; by reason whereof, the said last-mentioned plaintiff was very
much hurt and injured, and was confined to her bed several weeks, and
during that time underwent, and still continued to undergo, a great
deal of pain and suffering ; and the plaintiff in right of the said plaintiff
Dorothy claimed £100.

The second count was for the injury sustained by the plaintiff Richard
Mitchell.

The defendants pleaded, — first, not guilt}', — secondl}-, that they
were not possessed of the said horse and cart in the declaration men-
tioned ; whereupon issue was joined.

The case was tried before Jervis, C. J., at the sittings atWestmin-

* Ace. : Garretzen v. Duenckel, 50 Mo. 104 (1872). — Ea

SKCT. II.] MITCHELL V. CRASSWELLER. 145

ster, after the last teim. The facts appeared to be as follows: The
defendauts are ironmongers, carrying on an extensive business in Wel-
beck Street, and were possessed of a horse and cart, with which their
carman had on the da}' mentioned in the declaration been out to de-
liver goods. Returning home at a late hour in the evening, the carman
drove up to the shop-door to get tlie keys of the stable, for the pur-
pose of putting up the horse and cart. Having got the keys, the car-
man was about to proceed to the stable, which was in an adjoining
street, and within five hundred yards of the shop, when the defendants'
foreman, who was unwell, asked him to drive him a part of his way
home ; whereupon the carman went to the house for the purpose of
.^sking the permission of one of his employers, but. not finding either
/f them at home, returned to the foreman, and, observing that "he
ff-ould chance it," he drove him as far as Euston Square. In returning
thence to the stable, he accidentally ran over the plaintiffs.

Upon this state of facts, it was contended on the part of the defend-
ants that they were not responsible, the accident having happened whilst
the carman was doing something out of the scope of his dut}-.

The Lord Chief Justice intimating a doubt whether this defence
was open to them under not guilty and not possessed, the counsel for
the defendants asked his lordship to amend, under the 222d section of
the common law procedure act, 15 & 16 Vict. c. 76,^ b}' adding a plea,
that, at the time when the injurj' was sustained by the plaintiffs, the
said cart and horse were not being used in the employ of the defend-
ants, but were being improperlv used and driven by certain persons
driving themselves for other and different purposes. His lordship
allowed the amendment.

On the part of the plaintiffs it was insisted that, inasmuch as the
carman was in charge of the cart and horse of the defendants when
the accident happened, though he might have exceeded his dutj'in what
he did, the}' still were responsible for the consequences.

His lordship directed the jurN' to find for the [defendants], telling them
at the same time to assess the damages thej' considered the plaintiffs
entitled to. The jury accordingly assessed the damages at £30 for the
injury done to the plaintiff Thomas Mitchell, and at £10 for the injury
to his wife. And leave was reserved to the plaintiffs to move to enter
the verdict for them, if the court should think that the defence raised

1 " Whereas, the power of amendment now vested in the courts and the judges thereof
is insufficient to enable them to prevent the failure of justice by reason of mistakes and
objections of form," — be it enacted as follows, — " It shall be lawful for the superior
courts of common law, and every judge tliereof, and any judge sitting at nisi prius, at
all times to amend all defects and errors in any proceeding in civil causes, whether
there is anything in writing to amend by or not, and whether the defect or error
he that of the party applying to amend, or not ; and all such amendments may be
made with or without costs, and upon such terms as to the court or judge may seem
fit ; and all such amendments as may be necessary for the purpose of determining in
the existing suit the real question in controversy between the parties, shall be so
made." — Kep.

146 MITCHELL V. CRASSWELLER. [CHAP. IL

by the added i)lea was not admissible under the pleas originally pleaded,
and that the Chief Justice had no power under the statute to allow such
additional i)lea ; or that the defendants were under the circumstances
responsible for the negligence of their carman.

^/lee, Serjt., on a former day in this term, obtained a rule iiisi
accordingly.

J>i/les, Serjt., now showed cause.

Shee^ Serjt., Peter sdoi-ff, and Garth (In support of the rule).

Jervis, C. J. I am of opinion that the rule should be discharged.*
, . . The declaration alleges that, on a certain da}', the defendants
were possessed of a certain cart and horse, which was being driven
(not stating it to be so being driven at the time of the accident) by and
under the care and direction of the defendants' servant. If this alle-
gation were traversed, it would be established by proof of any driving
bv their servant at any time : it is therefore an immaterial allegation.
Then, because they have not alread}- fixed the time, the plaintiffs do
in some sort ascertain it in the charging part, — '' and that, whilst the
plaintiff Dorothy was crossing a certain street in London, called Grafton
Street, the defendants, by their said servant, so negligently and im-
properly drove and directed the said cart and horse along the said
street, that the said cart and horse ran against and struck the plaintiff
Dorothy," etc. I think ^ not guilty" puts in issue whether at the time
of the accident the driver of the cart was the servant of the defend-
ants. That brings us to the principal point, whether, under the cir-
cumstances disclosed by the evidence, the defendants are responsible
for the injury which the plaintiffs have sustained. Each case must
depend upon its own particular circumstances. No doubt a master
may be liable for injury* done by his servant's negligence, where the
servant, being about his master's business, makes a small deviation, or
even where he so exceeds his duty as to justify his master in at once
discharging him. But here it cannot be denied that, though it was
the dutv of the carman, on his arrival with the horse and cart at Wel-
beck Street, immediatel}- to take them to the stable, he, in violation of
that dut}', and without the sanction or knowledge of his employers, in-
stead of going to the stable, started on a new journe}^ whoU}' uncon-
nected with his masters' business, — as my Brother Parke expresses it
in Joel V. Morrison, " on a frolic of his own." I think, at all events,
if the master is liable where the servant has deviated, it must be where
the deviation occurs in a journey on which the servant has originally
started on his master's business ; in other words, he must be in the
employ of his master at the time of committing the grievance. I think
that was not the case here, and therefore I think the defendants are not
liable to this action.

Maule, J. I am of the same opinion. . . . The facts were these :
The defendants' carman, havmg finished his business, had nothing

1 The passages omitted from the opinions deal with pleading and procedure. — £flk

SECT. II.] MITCHELL V. CRASSWELLEK. 147

further to do but to drive the horse to the stable. At the time ol
the accident, he was not going a roundabout wa}- to the stable, or, as
one of the cases express it, making a detour. He was not engaged in
the business of his employers. But, in violation of his dut}, so far
from doing what he was employed to do, he did something totally incon-
sistent with his duty, a thing having no connexion whatever with his
employers' service. The servant only is liable, and not the employers.
All the cases are reconcilable with that. The master is liable even
though the servant, in the performance of his duty, is guilty of a devia-
tion or a failure to perform it in the strictest and most convenient
manner. But, where the servant, instead of doing that which he is em-
ployed to do, does something which he is not emploj'ed to do at all, the
master cannot be said to do it by his servant, and therefore is not
responsible for the negligence of the servant in doing it.

Ckessavell, J. I am of the same opinion. For the reasons given by
my Lord and my Brother Maule, I think the defence was admissible
under not guilt}'. ... As to the main point of the case, I agree, that,
under the circumstances, the carman cannot be said to have been acting
in the employ of the defendants at the time the injury complained of
was done, so as to make them responsible in damages for his negligence.
No doubt, if a servant, in executing the orders, express or implied, of
his master, does it in a negligent, improper, and roundabout manner,
the master ma}' be liable. But, here, the man was doing something
which he knew to be contrar}- to his duty, and a violation of the trust
reposed in him. The expression used by him at the time he started
upon the unauthorized journey showed that he was aware that he was
doing that which was inconsistent with his duty. I think it would be a
great hardship upon the employers to hold them to be responsible under
such circumstances.

Williams, J. I am entii'ely of the same opinion : and I must say I
should have been extremely sorry if any authorit}- could have been
found which would compel us to hold that this man was, at the time of
the accident which occurred through his breach of dut}' and his negli-
gence, acting in the emplov of the defendants. If the allegation that
the defendants were possessed of the cart and horse which was being
driven by their servant, had pointed to the particular time of the com-
mitting of the injury, the defendants might have traversed the induce-
ment. But, here, the introductorv averment is so framed as not to
involve the question whether at the time of the accident the cart and
horse were under the care and management of the defendants bj- theit
servant. . . . Hule discharged.^

1 Ace: Stone v. Hills, 45 Conn. 44 (1877). Compare Quinn v. Power, 87 N Y
535(1882). — Ed.

148 ELLIS V. SHEFFIELD GAS CONSUMERS CO. [CHAP. IL

ELLIS V. SHEFFIELD GAS CONSUMERS CO.
Queen's Bench. 1853-

[2 E. St' B. 767.] -

Count for unlawfully digging a trench in a public street and high-
way, and heaping up stones and earth, excavated from the said trench,
upon the said street and liighway, so as to obstruct it, and to be a com-
mon public nuisance ; whereby plaintiff, lawfully passing along the said
public street and highway, fell over the ;^aid stones and earth, so heaped
up as aforesaid, and broke her arm.

Plea: Not guilty*. Issue thereon.

On the trial, before Wigiitman, J., at the last York Assizes, it ap-
peared that the defendants had made a contract with persons trading
under the firm of Watson, Brothers, of Sheffield, by which Watson,
Brothers, contracted to open trenches along the streets of Sheffield
in order that the defendants might lay gas pipes there, and afterwards
to fill up the trenches and make good the surface and flagging. Watson,
Brothers, did accordingly, b}' their servants, open the trenches along
one of the streets in question, and, after the pipes were laid, proceeded
to fill up the trench and restore the flagging. In doing so, the servants
of Watson, Brothers, carelessly left a heap of stones and earth upon
the footway ; and the plaintiff, passing along the street, fell over them
and broke her arm. Neither the defendants nor Watson, Brothers, had
any legal excuse for breaking open the street in the manner described,
which was a public nuisance. It was objected, for the defendants, that
the cause of the accident was the negligence of the servants of the con-
tractors, Watson, Brothers, for which the defendants were not respon-
sible. It was answered that the contract was to do an illegal act,
viz. to commit a nuisance ; and, that being so, that the defendants were
responsible. The learned Judge directed a verdict for the plaintiff,
with leave to move to enter a verdict for the defendants.

T. Jones now moved accordingly-.

Lord Campbell, C. J. I am of opinion that there should be no rule
in this case. Mr. Jones argues for a proposition absoluteh' untenable,
namely, that in no case can a man be responsible for the act of a per-
son with whom he has made a contract. I am clearly of opinion that,
if the contractor does the thing which he is emplo3'ed to do, the em-
ployer is responsible for that thing as if he did it himself. I perfectly
approve of the cases which have been cited. In those cases the con-
tractor was employed to do a thing perfectly lawful : the relation of
master and servant did not subsist between the employer and those
actually doing the work : and therefore the employer was not liable for
their negligence. He was not answerable for anything beyond what he
employed the contractor to do, and, that being lawful, he was not liable
at all. But in the present case the defendants had no right to break

8ECT. II.] HILL V. MOKEY. 149

up the streets at all ; they employed Watson, Brothers, to break up the
streets, and in so doing to heap up earth and stones so as to be a public
nuisance : and it was in consequence of this being done by their orders
that the phiinlirt' sustained damage. It would be monstrous if the party
causing another to do a thing were exempted from liability for that act,
merely because there was a contract between him and the person imme-
diately causing the act to be done.

CoLKKiixn:, J., concurred.

WiGHTMAN, J. It seems to me, as it did at the trial, that the fact of
the defendants having employed the contractors to do a tlung illegal in
itself made a distinction between this and the cases which have been
cited. But for the direction to break up the streets, the accident could
not have happened: and, though it may be that if the woikmen em-
ployed had been careful in the way in which they heaped up the earth
and stones the plaintitl" would have avoided them, still I think the nui-
sance which the defendants employed the contractors to commit was the
primary" cause of the accident.

EiiLE, J. I agree that there should be no rule, on this specific ground
that, as I understand the facts, the cause of the accident was the very
thing done in pursuance of the specific directions of the defendants
contained in their contract ; and that in ra^' opinion makes the distinc-
tion between the present case, and those cited, in which the cause of
the accident was the negligence of those doing the thing, not the thing
itself. Jiule refused.

HILL V. MOREY.
Supreme Court of Vermont. 1854.

[26 T7. 178.]

This was an action of trespass founded on the statute entitled, "An
act more effectually to prevent trespass in certain cases," passed in
1849. Plea not guilty-, and trial by jury. After the jury were em-
panelled, the defendant made a motion, in writing, that the cause be
dismissed, on the ground, " that the plaintiff, when he prayed out his
writ, did not cause a true minute of the day, month, and year when said
writ was signed, or any minute whatever to be made on said writ." The
court decided, that if such certificate was necessary, the defendant was
too late in making his motion ; and overruled the same. It appeared
on trial, that the plaintiff and defendant were adjoining landowners,
the plaintiff owning upon the east, and the defendant upon the west ;
and that originally, the line between them was marked upon the land,
and corners made at the north and south ends of the line ; but the
marked trees towards the north part of the line had been mostly cut
down, and the fence (a brush fence) was not on the line, some parts

150 HILL V. MOREY. [CHAP. II.

being on the one side and some on the other. That tile parties went
upon the ground for the purpose of ascertaining where the line was,
and of dividing and repairing the fence between them ; and that one
Sturdevant was also there at the time. They went to the north part of
the line where the marked trees were gone, and where the trespass was
said to have been committed, and the plaintiff went to a certain point
in tlie woods, either at or near the north end of the line, and told the
defendant, who was some fifteen rods distant, that it was the corner.
AVhether the plaintiff went to the true corner or not, did not distinctW
appear ; the testimony of the plaintiff tending to show that he did go to
the true corner ; and tlie testimony of defendant tending to show that he
did not, but that plaintiff was a short distance east of it. The parties
made, at this time, a division of their fence, the defendant taking the
said north part for his share of the fence ; and he then began to repair
the brush fence. The defendant also offered testimon}- tending to
show, that the said Sturdevant, who was a neighbor, and happened to
be present, without any request from the defendant, began to assist
the defendant in repairing the said brush fench. That in so doing, said
Sturdevant cut a few small trees and poles east of the division fence
and east of the line between plaintiff and defendant ; and this cutting
bj' said Sturdevant, was the trespass complained of. It also appeared
from defendant's testimon}', that at the time said Sturdevant began to
cut, the defendant told him, that he must be careful and not cut over
the line. The line, a portion of the way, was in dispute on the trial.
It appeared that the defendant in repairing the fence, went on the west
side, and said Sturdevant on the east side, and in this wa}' passed over
the whole of that part of the division, which defendant was to repair,
each cutting on his side of the fence small trees and poles, and putting
the same on the fence, and thus repairing it. The defendant claimed,
and so said Sturdevant testified, that Sturdevant in what he did, in
cutting and repairing the fence, was a mere volunteer, and that he did
not act at the request of the defendant, and that he was not in the
emplo}' of the defendant. The defendant therefore claimed that he was
not liable for Sturdevant's act ; and that as he requested Sturdevant
not to cut over the line on plaintiff's land, Sturdevant in so doing,
acted against the wishes and without the authorit}' of defendant,
and that no assent could be inferred or implied from the defendant's
presence and knowledge of the acts being done. Defendant also
claimed, that if the jury found that the plaintiff, when he pointed out
the north corner, pointed it out as further east than the true corner, it
amounted to a license ; and that if defendant or Sturdevant did not cut
further east than the line would have been, assuming the corner
thus pointed out by plaintiff to be the true corner, it amounted to a
license, and that defendant would not be liable. Plaintiff's testimony
tended to prove, that he, the plaintiff, told them before they began to
mend said fence, not to cut on his side of the fence. It also appeared,
that, where said fence run it was wood land, but that the land east of
the fence was enclosed with the plaintiff's cleared land, and occupied

SECT. II.] HILL V. MOREY. 151

by plaintiff; and that the land west of said fence was enclosed with
defendant's cleared land, and occupied by and in defendant's posses-
sion. On the points above stated, and made by defendant, the court,
— Peck, J., presiding, — charged the jury as follows : —

That in order to entitle the plaintiff to recover, the jurj' must Gnd,
that some cutting was done or trespass committed east of the division
fence and east of the division line between the plaintiff's and defend-
ant's land ; that for any cutting or trespass west of the true line,
although east of the division fence, the plaintiff could not recover for
want of title to the premises where such trespass was committed ; and
that for any cutting done or trespass committed east of the true line,
if west of the division fence, the plaintiff could not recover, for want of
possession, and b}- reason of the defendant being in possession of the
land west of and up to the division fence ; but for any cutting done,
or trespass committed by defendant, which was both east of the divi-
sion fence, and east of the division line between plaintiff and defend-
ant, if done on plaintiff's land, or land in plaintiff's possession, the
defendant would be liable. On the point made in relation to defend-
ant's liability for the acts done by Sturdevant, the court charged the
jury, that if Sturdevant was cutting for defendant's benefit and in his
presence, and with his knowledge and consent, the act of Sturdevant
wonld be the act of defendant, for which defendant would be liable,
even if Sturdevant had not been employed by defendant, and defendant
did not advise or direct such act to be done ; or if defendant knew at the
time when Sturdevant was cutting and did not object, but assented to
it, and it was an act beneficial to defendant, and done for defendant's
benefit, the defendant would be liable for such act of Sturdevant ; and
that the question, whether what was done b}- Sturdevant was done
by the consent of defendant or not, was a question of fact for the jury
to find ; and that they might or might not find such consent of the
defendant, as they might think the evidence warranted ; that if they
did not find such assent, or that the cutting or trespass by Sturde-
vant, was not done b}^ defendant's assent, the defendant would not be
liable for the acts of Sturdevant ; but if Sturdevant was cutting for
defendant's benefit, and his acts were beneficial to defendant, and he
was cutting by defendant's assent, even if defendant told him not to
cut over the line on plaintiff's land, yet, if Sturdevant, b}' mistake, not
knowing and not having the means of knowing where the line was, cut
over the line on plaintiff's land and possession, such act of Sturdevant
would be the act of defendant ; but if Sturdevant was cutting even
with defendant's consent or direction, and knowingly' or wilfully with-
out defendant's consent or direction cut over on plaintiff's land or
possession, the defendant would not be liable for such act. In refer-
ence to what was claimed, as to a license, the court told the jury,
that even if they should find that plaintiff pointed out the corner
further east than the true corner, and that defendant and Sturdevant
did not either of them cut further east than the line would be, assum-
ing the corner thus pointed out to be the true corner, if such evidence

152 SADLEE V. HENLOCK. [CHAP. IL

had a tendency to prove a license, it would not be a defence under the
general issue, that in order for defendant to avail himself of that
evidence, as a license, it should have been pleaded ; but that such
evidence was proper for the jury to consider and weigh, in reference to
the question of fact, where the true line was, and in that point of view,
it had a tendency to show that the true line was further east, than the
line claimed by the plainlift" on trial. To the decision of the court
overruling the motion to dismiss, and to the omission of the court to
charge as requested, and to the charge as given, the defendant ex-
cepted. The jury i-eturned a verdict for plaintiff.

A. Burt and A. 0. Aldis for defendant.

H. R. Brardsley for plaintift'.

The opinion of the court was delivered by

Redfield, C. J.^ The other objection depends a good deal upon the
construction of the testimon}-. It is a small cause and seems to have
been pretty thoroughly tried in the county court, and we have not been
able to see very clearl}' any error in the trial. Sturdevant, although a
volunteer, seems to have undertaken the office of a servant to the
defendant pro hac vice, and to have been suffered to proceed in his
service, without objection, or any other restriction, except to be careful
not to cut trees standing upon the plaintiff's land ; but he did cut trees
on the plaintiff's land, negligentl}', and for want of proper information,
and upon every principle of the relation of master and servant, the
defendant must be regarded as liable for the act. If one could always
excuse himself from liability for the acts of his servant, by giving such
instructions, the liability would be reduced to cases of express assent.
And in the present case, the act being done, in the presence of the
defendant and for his benefit, and he not dissenting, in any manner,
must be regarded, as assenting. As the evidence stood, there could
be no reasonable doubt of defendant's liability' for the acts of Sturde-
vant, upon either of these grounds, and we think, the case was
correclly submitted to the jury, upon both grounds.

Judgment affirmed.

SADLER y. HENLOCK.
Queen's Bench. 1855.

[4 E. .j- B. 570.]

TgfK declaration alleged that, before and at the time &c., there was,
and thence hitherto &c., a common and public highwa}', in «&;c., for all
the liege &c. to go, return, " pass and repass, on foot and by and with
horses and carriages, at all times of the year, at their free will and

* Paragraphs as to procedure and license are omitted. — En.

8ECT. II.] SADLER V. HENLOCK. 153

pleasure : yet the defendant, well knowing the premises, heretofore, to
wit on the 28th day of November in the year 1853, wrongfully and
unjustly cut, dug and excavated a deep ditch or trench across the said
highway, and partially filled and covered in the same with mud, dirt and
other soft and loose materials, and thereby- rendered that portion of
the said highway, across, over and along the said ditch or trench so
cut, dug and excavated as aforesaid, soft, mirv, dangerous and unsafe
to persons using and frequenting the said highway on hoiscback and
otherwise. ]>}• means of which said several premises, afterwards, and
while the said road remained and was in the said state and condition
last aforesaid, and before the commencement of this suit, to wit on "
&c., a horse of plaintiff, of great value &c., "which the plaintiff was
then lawfully riding on and along the said highway, was thrown down
by stepping in and upon the said portion of the road which was so
rendered soft, miry, dangerous and unsafe as aforesaid : and thereby
the knees of the said horse were broken, and the said horse was and is
otherwise greatly injured and rendered of little or no use or value to
the plaintiff, who was tliereby also then subjected to and incurred great
expense," &c.

Plea: Not guilty. Issue thereon.

There were two other issues of fact not now material.

On the trial, before Platt, B., at the last Yorkshire Assizes, it
appeared that the defendant was the occupier of some land adjacent to
the highway mentioned in the declaration. The land was drained by a
drain which passed from the laud down under the highwaj-. The drain
having become obstructed, and the water having accumulated on
defendant's land, he (in consequence, as it appeared, of having been
told by the parish surveyor that the Board of Health would require
all drains to be cleansed out) directed a man named Pearson to cleanse
out the drain. Pearson was not otherwise in the emplo3-ment of the
defendant ; he was a common laborer who had originallj- made the
drain. Pearson executed the work with his own hands, and charged
the defendant five shillings for the job, which the defendant paid.
The defendant was not shown to have interfered with the work, or to
have seen th§ way in which it was executed, or to have given any
specific directions. Pearson, in clearing out the drain, took up the
part of the highway under which the drain passed. After completing
the work, he replaced the soil of the highwa}', but iraperfecth", and
with insufficient materials : and, in consequence, it gave way, as a
horse belonging to the plaintiff, and on which plaintiff was riding at
the time, was passing over it : and the horse, by falling into the hole
thus made, was injured. The action was brought for this injur}'.

The counsel for the defendant contended that, under these circum-
stances, Pearson alone was answerable, and that the rule of respondeat
superior did not appl}'. The learned Baron overruled the objection,
reserving leave to move for a nonsuit or for entering a verdict for the
defendant. The plaintiff had a verdict on all the issues.

154 SADLER V. HENLOCK. [CHAP. IL

In last term Hugh Hill obtained a rule calling on the plaintiff to
show cause why a verdict should not be entered for defendant, or a
nonsuit, on the plea of not guilty, or why a new trial should not be had,
" on the ground of misdirection in this : that the Judge who tried the
cause directed the jury to the effect that Pearson, who did the work,
was the servant of the defendant, and that the defendant was respon-
sible for the negligence of Pearson, although Pearson might have done
the work which he was employed to do without being guilty of any
negligence ; and also that, if it was material to determine whether
Pearson was a contractor or servant, that should have been left as a
question to the jur}'."

T. Jones now showed cause.

Hugh Hill, contra.

Lord Campbell, C. J. I am of opinion that this rule ought to be
discharged. The real question is, what relation subsisted between the
defendant and Pearson. Ellis v. Sheffield Gas Consumers Company,
2 E. «fe B, 767, is inapplicable : the act there could not be done at all
without committing a public nuisance. Here the drain might have
been cleansed without injury to the public or to an}' individual. The
question therefore depends on this : whether Pearson was the defend-
ant's servant. Had Pearson been the domestic servant of the defendant,
and the defendant had said to him, "go and clean out the drain," no
doubt Pearson, by doing the work negligently, would have made the
defendant liable. Then what difference can it make that Pearson was
an independent laborer, to be paid by the job? The defendant might
have said, '• fill up the hole in the road, but not as you are now doing
it, lest, when a horse goes over the place, he may be injured." Pear-
son was therefore the defendant's servant; and, if so, cadit qucestio.
Our decision is not inconsistent with that in Peache}' i". Rowland, 13
Com. B. 182, and the other cases which have been cited, in which the
relation of master and servant did not exist.

Coleridge, J. I am of the same opinion. The defendant was not
called on by public authorit}' to do the work ; nor was there an v reason
wh\', if it could not be done properlv, it should be done at all. If the
work had been done b}' his own hand he would have been responsible.
So he would if it had been done by his servant or b}' a common laborer
whom he had emplo3ed. On what ground? Because the party doing
the act would have been employed by him. Instead of this, he employs
a person who seems to have been usually emplo3-ed in such works.
Such person is just as much his servant, for' this purpose, as a domes-
tic servant. The rule must be discharged.

"WiGHTMAN, J. Really the question is whether Pearson is to be
considered as the defendant's servant or as a contractor exercising an
independent employment. The whole evidence shows that the former
is the correct view. Pearson was not a person exercising an indepen-
dent business, but an ordinar}' laborer, chosen bv the defendant in
preference to an}^ other, but not exercising an independent employ-
ment. Our decision is in conformity with all the cases cited.

SECT. II.] MOIK V. HOPKINS. 155

CuoMPTON, J. I am of tlie same oi)inion. The real question is,
whetlier the (lefeiidant and IVarson stood to each other in the rehition
of master and servant. I decide, not on the ground that Pearson did
not employ the hands of another ; for, if he was the defendant's ser-
vant, the defendant would be liable for the wrong doing of the person
whom the servant employed : though it is true that such employment
may sometimes be a test as to whether the employer was a servant or
an independent contractor. The test here is, whether the defendant
retained the power of controlling the work. No distinction can be
drawn from the circumstance of the man being employed at so much a
day or by the job. I think that here the relation was that of master
and servant, not of contractor and contractee. It is only on the
ground of a contractor not being a servant that I can understand the
authorities.

Rule discharged.

MOm V. HOPKINS.
Supreme Court of Illinois. 1855.

[16 ///. 313.]

This cause was heard before Wead, J., and a jnry, at April term,
1855, of Henderson Circuit Court. The opinion of the court gives a
statement of the case.

Sievxirt and Goudy, for plaintiff in error.

C. M. Harris, for defendant in error.

Skinner, J. Trespass by Manassah Hopkins against William,
James and Robert Moir, for killing Hopkins' horse. The defendants
pleaded not guilty. Upon the trial, the plaintiff proved b}- William
Hopkins, his brother, that plaintiff had worked for defendants with his
team ; that while he was at work he was taken sick, and went home,
leaving his team with witness ; that at night, witness took the team
home where plaintiff boarded, and kept his team ; that he put the team
np and fed it, as directed by plaintiff; that the next da}', plaintiff being
still sick, witness worked for defendants ; that on said day, defendants
wanted a team to haul lumber in their mill-yard ; that early in the
morning, defendant, Robert Moir, directed witness to go and see if he
could not hire a team to do the hauling ; that witness accordingly
endeavored to hire a team among the neighbors, but could not obtain
one ; that when defendant, Robert Moir, found that witness had been
unsuccessful in hiring a team, he directed witness to go and get plain-
tiff's team ; that witness then went and got plaintiff's team out of the
stable, without plaintiff's knowledge or consent, and took it to the yard
and used it for defendants, hauling lumber during that forenoon ; that
In the afternoon, defendants wanted some bricks hauled from the coun-
try, a distance of eight miles, and that defendant, James Moir, directed

156 MOIR V. HOPKINS. [CHAP. II.

witness to go and haul the bricks ; that witness started with plaintiff's
team, got the bricks, and in returning, drove partly down a steep hill
on the road ; that as he got part wa3' down, one of the horses was
forced over the bank, fell and was killed ; that the horse was of the
value of $115 ; that witness was a married man ; that the plaintiff was
his brother, was an unmarried man, lived with witness, and kept his
team at the stable of witness ; that for some time previous to the time
plaintiff was taken sick, plaintiff had been in the employ of defendants,
with his team, hauling lumber for defendants ; that plaintiff, on being
taken sick, went to witness' house, and was there the next day, when
witness took the team ; that plaintiff was sick and confined for some
time after the horse was killed.

The jury found the defendant, Robert Moir, guilty^ assessed the
plaintiff's damages at Si 15, and found the other defendants not guilty.
Motion for new trial overruled, and judgment on the verdict.

The plaintiff in error, Robert Moir, assigns for error, the giving of
the first and second instructions asked for by the plaintiff below, and
the refusal of a new trial. These instructions are as follows : —

First. If the defendants, or either of them, directed the witness to
go and get the plaintiff's horses, and he did go and get tliem, in pursu-
ance of such directions, without the assent, express or implied, of the
plaintiff, the person giving such instruction is a trespasser.

Second. If a person injures personal property belonging to another,
of which he has obtained possession bj' a trespass, he is liable to pay
for such injury.

The first instruction construed with reference to the facts before the
jury, and in the sense evidently intended by the court, and understood
b}- the jur}', is clearh' good law. The plaintiff below, Hopkins, had,
with his team, been in the employ of the Moirs ; had left on account of
being sick ; was then confined, and his team was idle. The Moirs had
sent their agent among their neighbors to hire a team, and he had re-
turned unsuccessful. Robert Moir then directed the same agent to
'•go and get" Hopkins's team. He did so. The instruction is based
on the hypothesis of a command b}' the Moirs to their agent, to go and
take Hopkins's team, and the evidence warranted the hypothesis. If,
then, Robert Moir directed his agent to go and take Hopkins's team,
and the agent did so, there can be no question of his liability for any
injury done to Hopkins's property thereb}-.

The rule of law is, that all who aid, command, advise or counte-
nance the commission of a tort b}' another, or who approve of it after it
is done, if done for their benefit, are liable in the same manner as they
would be if the}' had done the same tort with their own hands. Judson
V. Cook, 11 Barbour's R. 642; 1 Chitty's PL 208; Story on Agency,
Sec. 455.

The general rule is, that the principal is liable for the torts of his
agent, done in the course of his emploj'ment, although the principal
did not authorize, or justify, or participate in, or even if he disap-

SECT. II.] PATTEN V. REA. 157

proved of tliem. If the tort is committed by the agent in the course of
his employment, while pursuing the business of his principal, and is
not a wilful departure from such employment and business, the princi-
pal is liable, although done without his knowledge. Story on Agency,
sec. 452 ; Fuller v. Voght, 13 111. 285 ; Johnson v. Barber, 5 Gil. 425,
and cases there cited ; May v. Bliss, et al., '2'2 Vt. K. 477.

And it would seem, that although Moir intended that his agent
should get the owner's consent before taking his team, and the agent
misunderstanding the instructions given, took it without the owner's
consent, he would still be liable. 22 Vt. R. 478.

The second instruction is certainly the law, and the evidence suffi-
cient to sustain the verdict. Judgment affirmed.^

PATTEN V. REA.

Common Pleas. 1857.

[2 C. B. N. s. 606.]

This was an action against the defendant for negligence in drivmg
a horse and gig. The declaration stated that, by the wrongful act,
neglect, and default of one William Taylor, then being and acting
therein as the servant of the defendant, a certain horse and carriage of
the defendant were driven upon and against a horse of the plaintiff,
which last-mentioned horse was thereby- killed.

The defendant pleaded, — first, not guilty, — secondly-, that the horse
and carriage in the declaration mentioned were not the property of the
defendant as alleged, — thirdly, that the horse and carriage in the dec-
laration mentioned were not under the care, management, and direction
of the defendant as alleged. Issue thereon.

The cause was tried before Crowder, J., at the first sitting at
Westminster in Hilary Term last. The facts which appeared in evi-
dence were as follows: — The defendant was the proprietor of a re-
pository for the sale of horses, at Newington, in the county of Surrey.
Taylor was his manager there, acting as auctioneer in the sale of
horses, collection of moneys, and otherwise in the general conduct of
the business. He had a horse and gig, his own property, which were
kept for him on the premises of the defendant free of charge, and which
he was in the habit of using when going out upon the defendant's busi-
ness. One Smith had bought a horse at the defendant's repository,
which he ought to have paid for at the office upon the premises, but had
not done so. On the 10th of November, 1856, Taylor was going in the
gig to see his medical attendant at Finsburj' Place, and also purposed
to call upon Smith for paj-ment of the debt he owed the defendant for
the horse ; and, whilst on his way to the former place, and before he

1 See Wilson v. Noonan, 27 Wis. 598 (1871); Maier v. Randolph, 33 Kan. 340
a 88.5). —El).

158 PATTEN V. REA. [CHAP. IL

got to Smith's, he negligently ran against and killed a horse belonging
to the plaintiff.

It appeared, that, whilst Taylor was getting ready the horse and gig
for the purpose of going on the journey in question, the defendant
asked him where he was going, when Taylor told him he was going to
get Smith's money.

On the part of the plaintiff it was insisted, that, although the horse
and gig were the property of Taylor, yet, as at the time of the accident
he was using it in the defendant's business, and with his knowledge,
the defendant was liable. The contrary was contended on the part of
the defendant.

In answer to questions put to them by the learned judge, the jur}'
found, that, on the occasion in question, there was no verbal request
by the defendant to Taylor to go with the horse and gig upon the
defendant's business ; but that Taylor went on the journey upon the
business of the defendant, and that the defendant knew it and assented
to it.

Upon this finding, the defendant's counsel claimed to have the verdict
entered for him upon the second and third issues.

The learned judge, however, ruled that the plaintiff was entitled to
the verdict upon all the issues, and the jur^^ assessed the damages
at £31.

Atherton, in Hilary Term last, obtained a rule nisi for a new trial,
on the ground of misdirection on the part of the learned judge, —
first, in not leaving to the jury the question whether the horse and
gig driven by William Taj-lor were used b}' him on his master's busi-
ness, at the instance and express I'equest of the defendant, — secondly,
in not directing the verdict to be entered for the defendant, on the fact
being found, and not disputed, that the horse and gig were the property
of William Taylor, not b}' him made over or bailed to the defendant ;
or on the ground that the verdict was against the weight of evidence,
if it was to be taken that the jury in fact found that the horse and gig
driven by Taylor were used by him on his master's business at the
instance and express request of the defendant.

3Iontagu Chambers, Q. C, and Joyce^ now showed cause. — The
evidence shows beyond dispute that Ta3lor was at the time the col-
lision took place acting in the service and about the business of the
defendant ; and the fact of the horse and gig belonging to Ta3-lor
can make no difference ; the defendant would have been equally lia-
ble if they had been the property of a stranger. Taylor had the
general management of the defendant's business. A horse had been
sold to one Smith, and Taylor was going to him for the purpose of
obtaining payment for it. He was also, it is true, going elsewhere,
for a purpose of his own : but he met with the accident before he
reached Smith's. [Willliams, J. — Was it essential to the master's
business that the journey should be made with the horse and gig?]
Probably not ; but Taylor was in the habit of going about his mas-
ter's business with the horse and gig. [Cockbukn. C. J. — Suppose

SECT. II.] PATTEN V. KEA. 159

the master had said to him, " Go to such a place," without more,
would he be liable?] That would depend upou the surrounding cir-
cumstances. Here, the evidence was, that Taylor's horse and gig
were kept for him free of cost upon the defendant's premises, that
he was in the habit of using them when going upon the defendant's
business, and that, on tlie occasion in question, the defendant knew
where he was going, and the manner of going. He therefore tacitl}'
assented to his going in that manner. The case of Goodman v.
Keunell, 1 M. & P. 241, is ver}- much in point. There, a person
occasionally employed by the defendant as his servant, being sent
out b}- him on his business, took the horse of another person, in
whose service he also worked, and, in going, rode over the plaintiff.
At the trial, it was left to the jur}' to say whether or not the horse
was taken by the servant with the implied consent or authoiit}' of
the defendant; and, they having found a verdict for the plaintiff,
the court refused to interfere. Best, C. J., said : " It has been trulj'
said that a serv'ant's riding the horse of another, without the assent
or authority of his master, cannot render the latter answerable for
his acts. But here the question was, whether there was not sufli-
cient evidence to show that Cocking was riding the horse with the
defendant's assent, and ou his business. It was proved that Cocking
was the servant of the defendant ; that the horse was in his stable ;
and that on the da}- the accident happened. Cocking was going on
the defendant's business or employment. The proof of these three
facts was sufficient to raise a strong presumption that Cocking was
using the horse with the defendant's consent." Here, the proper
question was left to the jury, — did Tajlor go in the gig at the re-
quest of the defendant, or with his assent? The jurj- found that it
was done with the defendant's knowledge and assent. [Crowder, J.
— The contention was. that, in order to render the defendant liable,
there must be something tantamount to a command by the master.
The rule is not quite correct in the use of the word express.'] It might
almost be said here that there was an express command. [The court
called on

Athei'ton, Q. C, and Barnard, to support the rule. — This is an
action against the defendant, not for an act or omission imputed to
him personalh', but for an act done hy his servant. That Taylor was
at the time of the accident acting in the service of the defendant, and
about his business, is admitted. That, however, is not enough to im-
pose upon him this liability. The rule of law is well exemplified by
the language of the declaration itself: to render the defendant liable,
Taylor must in the very act of driving have been acting as his servant,
and not upon his own account. A man may be the servant of another
at the time of doing the act which causes the injury, without that other
being responsible for the mode of doing the act. The question is, not
whether the servant was engaged on his master's business, but whether
he was going in the particular manner, — with the horse and chaise, —
as his servant. The mere fact of the master seeing him about tf) start

160 PATTEN V. KEA, [CHAP. II.

in the chaise, and making no objection, is not enough. [Cockbdrn,
C. J. — Tliat is only one circumstance. The facts seem to be these : —
Taylor is employed in the general management of the defendant's busi-
ness. He possesses a horse and gig ; and it is mutually agreed, that,
in consideration of the use of the horse and gig by Taylor for the pur-
pose of the defendant's business, they shall be kept upon the defend-
ant's premises without charge. Upon the occasion in question, Taylor
was going out upon his master's business ; the master saw him start
upon the journey, and thereby assented to that mode of performing the
service. The knowledge of the master was only one circumstance, in
addition to the other and more material ones. I think it was a question
for the jury, and that there was abundant evidence for them.] There
was no evidence of any agreement or arrangement to the effect just
stated. There was no bargain that the use of the horse and gig for the
purpose of the defendant's business should be an equivalent for the
horse's keep. [Cockburn, C.J. — It was a tacit arrangement. That
seems to have been assumed on all hands.] Suppose a master desires
his servant to go to a certain place, and the servant of his own accord
borrows a friend's horse for the purpose of riding there, and his master
meets him by accident on the wa}-, and says nothing, — could it be con-
tended, that, in riding that horse, the man was acting in the service of
his master, so as to make him responsible for auy misadventure of the
servant on the road? [Crowder, J. — You must not lose sight of the
other facts. Taylor was manager at the defendant's establishment ;
and his horse and gig were kept there without charge, and were used
by him from time to time upon his master's business.] There was no
evidence of any contract which made it his dut}' to use the horse and
chaise in his mastei"'s service. It clearly was a misdirection not to leave
it to the jury to sa}' whether the horse and gig were used by Taylor on
his master's business, at the instance and request, express or implied,
of the defendant. [Cockburn, C. J. — I think the master would have
been liable if Taylor had taken the horse and chaise without his
knowledge. I think there was abundant evidence for the jury, inde-
pendently of that fact.] To justify- the verdict, it should have been
found as a fact that there was some obligation, some binding contract,
on the part of Taylor to find a horse and gig for the service of his
master.

Cockburn, C. J. I am clearl}' of opinion that this rule must be
discharged. I concur in the argument urged by the defendant's coun-
sel, to this extent, that, to render the master liable, it is not enough to
show that the person driving the vehicle which causes the damage is
his servant, but that it must be shown that the servant was driving
with his master's authorit}' and upon his business. Now, I tliink there
was abundant evidence here that Taylor was driving, at the time the
accident occurred, with the defendant's authorit}' and in the course of
business as his servant. Taylor, it appears, was the general manager
of the defendant's establishment; and, being so, he, either by express
agreement or by some tacit arrangement, was in the habit of using in

SECT. II.] PATTEN V. REA. 161

transacting the defendant's business a horse and gig, his own property-,
which, in consideration of that arrangement, were kept for him upon the
defendant's premises free of charge. Looking at these circumstances,
and considering the nature of the business, I tiiink Taylor must be as-
sumed to liuv'e had authority to exercise iiis discretion as to the mode
of performing his duty to his master. Adding to this the fact tliat the
master knew that his servant was using the horse and gig on the partic-
ular occasion, I think the evidence was ample to show that what was
done had the sanction and authorit}- of the master. That question was
not at all withdrawn from the jury. The contention on the part of the
defendant at the trial was, that he was not responsible for the damao^e,
because the horse and gig were the propert3' of Taylor, and because
there was no evidence of any express command from the defendant to
Taylor to use the horse and gig upon the occasion in question. I think
the former part of the argument is met by the fact that the horse and
gig were kept by the defendant free of charge to Taylor, and were ordi-
narily used by him in the performance of journeys about his master's
business, and the latter by the fact that the master was cognizant of the
course which iiis servant was pursuing at the time, and did not dissent.
I think the case was properly presented to the jury, and that there is
no ground for saying that the verdict was not well warranted by the
evidence.

Williams, J. I am entirely of the same opinion. I agree with
Mr. Atherton, that, in cases of this sort, the real question is, whetlier
the servant while doing the negligent act complained of was acting as
the agent of the defendant. That is demonstrated b}' the consideration
that the plaintiff in declaring in such an action has the option of alleg-
ing the negligent act to be the act of the servant, or of relying upon the
legal effect, and alleging it to be the act of the master. Thus, in
Brucker v. Fromont, 6 T. R. 659, it was held that a declaration which
charges the defendant with having negligently driven his cart against
the plaintiffs horse, is supported by evidence that the defendant's ser-
vant drove the cart. I think there was ample evidence here that Taylor,
at the time of the accident, was acting as the servant and by the author-
ity of the defendant. It was incumbent on the plaintiff, no doubt, to
show that Taylor acted as the defendant's agent in the employment of
the horse and gig upon the particular occasion. I think there was evi-
dence enough of that for the jury, and that that question was properly
left to them. The rule does not complain that it was not so left : the
complaint is. that my Brother Crowder misdirected the jury in not
leaving to them the question whether the horse and gig driven bj-
Taylor were used by him on his masters business, at the instance
and express request of the defendant. Now, it clearly is not necessary-
'm cases of this sort that there should be any express request : the
jury may imph' a request or assent from the general nature of the ser-
vant's duty and employment. There was ample evidence of such implied
request or assent here. The only other complaint made of the direction
was not relied on by Mr. Atherto?i in his argument in support of the

162 WEED V. PANAMA RAILROAD CO. [CHAP. IL

rule : nor could it have been with any hope of success. Upon neither
ground, therefore, can this rule be sustained.

WiLLEs, J. I am clearl}' of the same opinion. The argument urged
on tlie part of tlie defendant amounts in substance to a denial of the
general rule laid down by Lord Holt in Turberville v. Stampe, 1 Lord
Ravm. 26G, that "a master is responsible for all acts done by his ser-
vant in the course of his employment, though without particular direc-
tions." Was Taylor at tlie time the accident complained of happened
acting in the course of his employment? It appears that part of the
terms of his employment was that he should have the benefit of the keep
of his horse and the standing of his gig upon his master's premises, in
consideration of his using tliem when going about his master's business ;
and that he was actually engaged on his master's business, viz. going
to collect a debt due to him, at the time. And it further appears that
his master knew that he was going, and in what manner he was going.
The master is clearly reponsible.

Crowdeu, J., said nothing. Eule discharged.

WEED AND ANOTHER V. THE PANAMA RAILROAD COMPANY.

Court of Appeals of New York. 1858.
[17 iV. y. 362.]

Appeal from the Superior Court of New York City. The action
was brought b}' husband and wife to recover damages for breach of
duty by the defendant as a carrier of passengers, whereby the wife was
injured in her iiealth. On the trial before Mr. Justice Oakley and a jury,
it was proved that in August, 1854, the plaintiffs were passengers on a
train of cars of the defendant from Obispo to Aspinwall, about thirty
miles distant. The train proceeded about seven miles on the route, to
a place called the Barbacoas Switch, where it was detained during a
night, and did not reach Aspinwall until the afternoon of the day fol-
lowing. There were about four hundred passengers on the train, who
remained in the cars during the night, from inabilit}' to procure other
accommodations. The weather was stormy, and the wife was taken
sick in the night and experienced great suffering. Much evidence was
given tending to prove that in consequence of the detention her health
was greatly and perraanentl}' injured.

In summing up, the plaintiffs' counsel insisted that the evidence es-
tablished that the conductor designedly left the train at the Barbacoas
Switch, having that intention wlien he left Obispo, and that for this
reason exemplar}- damages might be given. He claimed damages on
the ground of wilful misconduct and negligence. The counsel for the
defendant asked the court to charge the jury that if the conductor acted
wilfull}' in the detaining of the train the defendant was not liable for that,
as there was no evidence that defendant authorized or approved such

SECT. II.J WEED V. PANAMA RAILROAD CO. 163

nnsconduct. The justice refused so to charge, and to such refusal the
defendant's counsel excepted. The justice then directed the jiUT, among
other things, that altliough the}' should find that the conductor acted
wilfull}' in the detention of the train, the defendant would not for that
reason be entitled to a verdict ; to which the defendant's counsel ex-
cepted. The justice, after delivering his charge, directed tlie jury to
answer the following questions, which were submitted to tliem in writ-
ing : First. Was the detention at the Barbacoas Station, liy the con-
ductor of the defendant, a wilful act of the conductor? Second. In
detaining the train as lie did there, did the conductor act negligenth' or
without reasonable care and judgment? The counsel for the defendant
excepted to the submission of the first question to the jur}-. The jury
answered each of these questions in the allirmative, and rendered a
verdict for the plaintiffs, assessing damages at $2,000. Judgment was
sus[)ended and a case made which, in pursuance of a direction at the
close of the trial, was argued at a general term, where judgment was
rendered for the plaintiffs on the verdict. The defendant appealed to
this court.

James T. Brady, for the appellant.

A. J. IrVillard, for the respondents.

Strong, J. The i)rincipal question in this case is, whether the de-
fendants are liable for the detention of the train producing damages to
the wife, although the detention was the wilful act of the conductor,
neither authorized nor approved b}' the defendants. The obligation of
the defendants from receiving the wife on their train of cars to be carried
to Aspinwall and proceeding with the train part of the distance, to
carr3' her to that place with all reasonable diligence, is not disputed by
them and admits of no doubt. (Story on Bailment, § 545 ; Wibert v.
New York & Erie Railroad Co., 2 Kern. 253.) Nor is it claimed by
them that detention and delay on the route, from the mere negligence
of the conductor or other servants of the defendants connected with
the management of the train, occasioning damage to the wife, would
not be a breach of the obligation for which the defendants would be
responsible ; but they insist that their obligation is not broken and that
they are not liable for the wilful act of the conductor followed by such
a result; and they invoke in support of their position the rule, well
sustained by principle and authority, that a master is not liable for a
wilful trespass of his servant.

It is important, therefore, to inquire whether that rule extends to a
case like the present, and for that purpose, to consider the basis on
which it is founded. The reason of the rule clearly appears by the
cases in which it has been declared and applied.^ . . . All the cases on
the subject, so far as I have observed, agree in regard to the principle of

1 Here were stated M'Manus v. Crickett, ante, p. 102 ; Wright v. Wilcox, ante, p. 1 1 8 ;
Richmond Turnpike Co. v. Vanderbilt, 1 Hill, 480 ; s. c 4 N. Y. 479. Reference waf
also made to Hibbard v. New York & Erie Ry. Co., 15 N. Y. 455, 467, 468 ; and Story
on Agency, §§ 456-462. — Ed.

164 WEED V. PANAMA RAILROAD CO. [CHAP. IL

the rule, and also in limiting the rule to that principle. For acts of an
agent within his authorit}-, the principal is liable, but not for wilful acts
without his autliority. (Phil. & Read. R. R. Co. v. Derby, 14 How.
U. S. R. 4GH.)

In the light of this examination of the class of cases which has been
considered, it cannot fail to be seen that there is an important differ-
ence between tliose cases and the one before the court. Tlie former
are cases of wilful, unauthorized, wrongful acts by agents, unapproved
by their principals occasioning damage, but which do not involve nor
work an}' omission or violation of duty by their principals to the per-
sons injured ; wrongs by the agents only, with which the principals are
not legally connected. In the present case, b}- means of the wrongful,
wilful detention by the conductor, the obligation assumed by the de-
fendants to carry the wife with proper speed to her destination, unless
this wilful wrong of the conductor was an excuse to them, was broken.
The real wrong to the wife in this case, and from which the damage
proceeded, was the not carrying her in a reasonable time to Aspinwall,
as the defendants had undertaken to do ; and this was a wrong of the
defendants, the carriers, unless the law excused them for their delay on
account of the misconduct of their agent. It is for this alleged wrong
of the defendants in not performing their duty as carriers with reasona-
ble diligence, from which injury has been experienced, that this action
was brought ; and the only question in relation to the point under con-
sideration would seem to be, whether they can defend themselves by
showing that the delay on the route was the wilful wrong of one of
their servants. The jur}' have found, as necessarily included in their
general verdict for the plaintiffs, that the defendants did not use due
diligence ; but they have also found, in answer to a special inquiry',
that the detention to which it was owing was a wilful act of the conduc-
tor. Upon these findings, connected with the exceptions to the refusal
of the judge to charge that if the conductor acted wilfully in detaining
the train the defendants were not liable and charging the contrarv, the
question must be whether the fact that the detention was a wilful wrong
of the conductor at all varies the law of the case.

Viewing the general question, as it appears to be clear we must, as
being whether the defendants have discharged their duty as carriers,
and the particular point of inquiry', whether the circumstance that the
detention was a wilful act of their servant will excuse what will other-
wise be a want of proper diligence, this part of the case is relieved
from difficult}'. If the detention had resulted from negligence of the
conductor, the liability of the defendants would be unquestionable.
A master is answerable for negligence of his servants in the perform-
ance of their duties. (2 Kent. Com. 601, 602.) Story, in bis Treatise
on Agency (§ 452), sa3'S : " It is a general doctrine that a principal is
liable to third persons, in a civil suit, for the frauds, deceits, conceal-
ments, misrepresentations, torts, negligence, and other malfeasances or
misfeasances and omissions of duty of his agent in the course of hia

SKCT. II.] WEKD V. PANAMA RAILROAD CO. 165

employment, although the principal did not authorize or justify or par*
ticipate in or indeed know of such misconduct, or even if he forbade
the acts or disapproved of them," &c. " In every such case, the prin-
cipal holds out his agent as competent and fit to be trusted, and thereby,
in effect, he warrants his fidelity and good conduct in all matters within
the scope of his agency." (Story on Bailm., §§ 400-406; Stokes v.
Saltonstall, 13 Pet. U. S. R. 181.) No reasons exist for holding a
master liable for injuries from negligence of his servants in his employ-
ment, which do not equally and with like force preclude him from alleg-
ing an intentional default of a serv^ant as an excuse for delay in the
performance of a duty the master has undertaken. In the former case,
the negligence of the servant is that of the master, and that is the
ground of the master's liability ; in the latter, the act of the servant is
the act of the master, constituting negligence of the master ; the motive
of the servant making no difference in regard to the legal character of
the master's default in doing his dut}'. The obligation to be performed
was that of the master, and delay in performance, from intentional vio-
lation of duty by an agent, is the negligence of the master.

In the present case, the defendants, as carriers, were bound to carry
the wife tlie entire journe}' with reasonable despatch, but the conductor
stopped the train on the route unreasonably, in known disregard of his
duty ; the defendants did not send it forward as it was their duty to do,
providing another conductor if that was necessary, and that was ncgli-
gence of the defendants. It must be assumed, in the absence of any
finding or even proof to the contrary, that it was practicable for the
defendants to forward the train without injurious dela}'.

I am satisfied, for the reasons stated, that the rule of law relied on
by the defendants to sustain their position, which has now been con-
sidered, is inapplicable to the case.

It is made a point b}' the defendants that judgment could not prop-
erly be rendered against them, for the reason that the findings of the
jur}' that the detention was a wilful act of the conductor, and also that
in detaining the train he acted negligenth" or without reasonable care
and judgment, are inconsistent with each other ; but in the view I have
taken of the case, whether the act was wilful or negligent makes no
difference as to the liabilit}' of the defendants ; in either aspect the
judgment was right.

Harris, J., did not sit in the case : all the other judges concurring.

Judgment affirmed}'

1 In Craker i-. Chicago & Northwestern Railway Co., 36 Wis. 657, 668-669 (1875),
Ryax, C. J., said : " We cannot help tliinking that there has been some useless subtlety
in the books in the application of the rule respondeat superior, and some unnecessary
confusion in the liability of principles for wilful and malicious acts of agents. This
has proliably arisen from too broad an application of the dictum of Lord Holt, that
' no master is chargeable with the acts of his servant but when he acts in the execu-
tion of the authority given to him, and the act of the servant is the act of the master.'
Middleton v Fowler, 1 Salk. 282. For this would seem to go to excuse the master foi
the negligence as well as for the malice of his servant. One employing another in

166 SEYMOUR V. GREENWOOD. [CHAP. IL

SEYMOUR V. GREENWOOD.

Exchequer. 1861.
[6 H. ^' N. 359.]

Declaration. That the plaintiff was a passenger for reward in
and upon a certain carriage of tlie defendant, used for the conveyance
of passengers in a certain public street in the cit\' of Manchester, to
wit, Clicster Road, and being and while he was such passenger, the
defendant and his servants so negligently and improperly conducted
themselves in and about the driving, managing and conducting of the
said carriage, that the plaintiff was thereby cast from the said carriage
to the ground with great violence, and his skull was fractured and his
legs crushed and bruised, and he suffered great personal injuries, &c.

Pleas. First: Not guilty. Secondly, that the plaintiff was not a
passenger.

At the trial, before Blackburn, J., at the last Liverpool Spring
Assizes, it appeared that the action was brought against the defendant,
the proprietor of an omnibus, by the plaintiff, who had been forcibly
removed from the omnibus by the guard in charge of it, whereby the
plaintiff's skull was fractured. The plaintiff's witnesses proved that
the plaintiff pulled the wire and the bell rung. The guard then went

good faith to do his lawful work, would be as little likely to authorize negligeute as
malice ; and either would then be equally dehors the employment. Strictly, the act of
the servant would not, in either case, be the act of the master. It is true that so great
an authority as Lord Kenyon denies this in the leading case of McManus v. Crickett,
1 East, 106, which has been so extensively followed; and again, in Ellis v. Turner, 8
Term, 5.31, distinguishes between the negligence and the wilfulness of the one act of
the agent, holding the principal for the negligence but not for the wilfulness. It is a
singular comment on these subtleties, that McManus v. Crickett appears to rest on
Middleton v. Fowler, the only adjudged case cited to support it ; and that Middleton
V. Fowler was not a case of malice, but of negligence, Lord Holt holtling the master
in that case not liable for the negligence of his servant, in such circumstances as no
court could now doubt the master's liability. In spite of all the learned subtleties of
so manv cases, the true distinction ought to rest, it appears to us, on the condition
whether or not the act of the servant be in the course of his employment, as is virtu-
ally recognized in Ellis c. Turner.

" But we need not pursue the subject. For, however that may be in general, there
can be no doubt of it in tliose employments in which the agent performs a duty of the
principal to third persons, as between such third persons and the principal. Because
the principal is responsible for the duty, and if he deleg;-oe it to an agent, and the
agent fail to perform it, it is immaterial whether the failure be accidental or wilful,
in the negligence or in the malice of the agent ; the contract of the principal is equally
broken in the negligent disregard, or in the malicious violation, of the duty by the
agent. It would be cheap and superficial morality to allow one owing a duty to an-
other to commit the performance of his duty to a third, without responsibility for the
malicious conduct of the substitute in performance of the duty. If one owe bread to
another and appoint an agent to furnish it, and the agent of malice furnish a stone
instead, the principal is responsible for the stone and its consequences. In such cases,
malice is negligence. Courts are generally inclining to this view, and this court long
eince affirmed it." — En.

SECT. II.] SEYMOUR V. GREENWOOD. 167

into the omnibus and seized the plaintiff b}' the collar. The plaintiff
offering no resistance, tlie guard backed himself out of the omnibus,
drawing the plaintiff after him, and threw the plaintiff upon the road.
Tlie plaintiff fell to the ground, and a cab, coming up, went over him.
The guard did not fall. This was in August, 1859. In December the
plaintiff's attorney wrote to the defendant as follows : —

"Sir, — I have been requested by Mr. Seymour to write to you in
reference to the serious injuries he sustained at the hands of your ser-
vants on the 22nd of August last.

" I may state that he was a passenger on that day in your omnibus,
&c. He signalled the guard to stop and let him alight. B}- the neg-
ligence and improper conduct of the guard, Mr. Seymour was cast
with great violence upon the roadway. One of your Hansom cabs,
which was following the omnibus, immediatelv came into contact with
Mr. Seymour's head. I shall be glad to receive any communication
from you upon the subject, &c.

" I am, sir,
"Mr. John Greenwood. R. W. Stead."

In consequence of that letter a person named Baxter called on the
plaintiff's attorne}-. He said that Mr. Seymour was mistaken in sig-
nalling the guard to stop ; that he was drunk, and had refused to pay
his fare ; that he had created a disturbance in the omnibus lower down
the road ; that he had first assaulted the guard, and that there had
been a scuffle, and that in the scuffle they had both rolled out into the
road.

On cross-examination, the plaintiff said his memor}' was much affected
by the accident, but he believed he was not drunk at the time, but he
admitted that he had been diinking.

At the conclusion of the plaintifl"'s case, the defendant's counsel
submitted that there was no evidence to charge the defendant with the
assault committed b}' his servant, which was not an}' negligence in the
performance of his duty, but an unwarrantable assault; and a verdict
was entered for the plaintiff with leave to the defendant to move to
enter a nonsuit, if the court should be of opinion that there was no
evidence on which the jury might reasonabh- find that the act of the
servant was one for which the defendant was answerable.

T. 'Tojies, having obtained a rule '' to show cause why the verdict
found for the plaintiff on the trial of this cause, &c., should not be set
aside, and a nonsuit entered on the ground agreed upon, that there was
no evidence to go to the jur}-."

Monk and Wheeler now showed cause. The question is, whether
at the time when the act complained of was committed, the guard was
acting as the servant of the defendant. In Eex v. Gutch, M. & M.
433, Lord Tenterden ruled that the proprietor of a newspaper, who
intrusts the conduct of the publication to one whom he selects, is crimi-
nally answerable for a libel published in such newspaper, though it is
not shown that he was individually concerned in the particular publi-

168 SEYMOUR V. GREENWOOD. [CHAP. II.

cation. One of the tests whether the maxim "respondeat superior"
applies is, wlietlier the party was enabled to do the wrongful act by
reason of his employment. Plere there was evidence that the plaintiflE
was drunk, and it may well have been tiie duty of the guard to remove
him in a careful manner. The removal of the plaintiff from the omnibus
was then an act done by the guard with the defendant's authority, and,
in the ordinar}' course of the employment intrusted to him ; and it was,
therefore, an act for which the defendant is responsible : Patten v. Rea,
2 C. B. N. S. 606. The defendant does not suggest that the act of the
guard was malicious. [Pollock, C. B. In removing the plaintiff
from the omnibus, the guard seems to have acted so carelessly as to
injure the plaintiff. Martin, B. The only question is whether there
was evidence for the jury.]

T. Jones^ in support of the rule. It may be conceded that the
question is wliether there was any evidence for the jury. It is sub-
mitted that the guard was a trespasser, and that the defendant is not
liable for his act. A master is not liable for the trespass of his ser-
vant. [Martin, B. If a servant drives his master's carriage against
another, the servant is liable in trespass, the master in case.] Was
the act one wliich the relation between the guard and the defendant
warranted him in doing? A master is not liable except for acts of
omission on the part of the servant — not for acts of commission.
Here what is complained of is a trespass — an act committed — not an
act of omission, such as negligence in driving or managing the omnibus.
By the concurrent testimony of all the witnesses, without provocation
the guard dragged the plaintiff out of the omnibus, and threw him on
the ground. [Channell, B. Suppose the plaintiff, being a passenger,
had grossly misconducted himself, the guard would have been justified
in removing him without unnecessary violence. Therefore, if the
representation of Baxter is well founded, it may show that the guard
had the authority of the defendant to remove the plaintiff, and, in so
doing, was engaged in the business of his master : Mitchell v. Crass-
weller, 13 C. B. 237.] M'Manus v. Crickett, 1 East, 106, shows that a
master is not liable in trespass for the wilful act of his servant, as by
driving his master's carriage against another, done without the direc-
tion or assent of the master. [Pollock, C. B. Suppose a servant
driving along a road in order to avoid supposed danger intentionally
drove against the carriage of another, would not the master be respon-
sible?] Not if the servant transgressed the line of his dut}'. In
M'Manus V. Crickett, Lord Kenyon cites Bro. Ab., tit. "Trespass,"
pi. 435, where it is said : "If my servant, contrary to my will, chase
my beasts into the soil of another, I shall not be punished." And 2
Roll. Ab., 553, " If my servant, without m}' notice, put my beasts inta
another's land, my servant is the trespasser, and not I." In Savignao
V. Roome, 6 T. R. 125, it was held that an action on the case, stating
that the defendant's servant wilfully drove against the plaintiffs car-
riage, whereby it was damaged, could not be supported, and the court

SECT. II.] SEYMOUR V. GREENWOOD. 169

arrested the judgment on that ground. In Roe v. The Birkenhead,
Lancashire and Cheshire Junction Railway Compan}-, 7 Exch. 36, a
railway servant, who had charge of a train, on receiving the plaintiff's
ticket, told him he had come by the wrong train, and that he must pay
2.S. (5d. more. This the i)hiiutitf refused to pay, and he was thereupon
taken into custody h}" a railvva}' servant, under the direction of the
superintendent. The court held that the plaintiff was bound to shovr
that the person by whom he was arrested was not only the servant of
the Compan}', but also that he had their authorit}- to arrest him.
[Maiitin, B. That case goes farther than any other on this sultject.
CiiANNELL, B. Would it not have been negligence if the guard took
the plaintiff out of the omnibus and left him in the middle of a street in
a crowded thoroughfare, when he was too drunk to walk?] If a ser-
vant is guilty of anything which is not mere want of skill or want of
care, the master is not resjjonsible : Sharrod r. The London and North
Western Railway Com[)an\-, 4 Exch. 580 ; Gregor}' v. Piper, 9 B. & C.
591 ; Timothy v. Simpson, 6 C. & P. 499.

Pollock, C. B. We are all of opinion that the rule to enter a non-
suit must be discharged. I agree with my brother Martin that since
the case of Roe r. The Birkenhead, Lancashire and Cheshire Railway*
Company the courts have been desirous to give full effect to tlie rule
by which a master is made responsible for want of care on the part of
his servants in executing his commands. As a judge, in determining
what is evidence, and as a juryman in giving effect to it, I should have
decided that the defendant's servant was ejecting a troublesome pas-
senger from the omnibus — not with violence and brutality, for I do
not believe that he intended to do more than put the plaintiff safely out
of the omnibus, and that his act in so doing produced the mischief
which occurred. I think then that there was evidence that the defend-
ant's servant was executing his master's command, but with a want of
care and consideration. I adopt the definition under which Mr. Jones
admits that his client would be liable. The law on this subject hag
undergone much discussion of late years. At the time of the decisions
of Scott V. Shepherd, 2 W. Black. 892, and M'Manus v. Crickett, the
subject had not been so thoroughly considered as it has since been.
For these reasons, I think that the rule must be discharged, and my
brother Channell, who has left the court, is of the same opinion.

Martin, B. The question is, wliether there was evidence from
which a jury might find that the act was one for which the defendant
was responsible. There was evidence that the plaintiff was drunk, and
had refused to pay his fare ; he had assaulted the guard, and a scuffle
took place, in which the plaintiff was thrown to the ground and injured.
If the guard used unnecessary violence, the defendant, his master, is
responsible. There are man}- cases, of which Roe v. The Birkenhead,
Lancashire, and Cheshire Railway Company is one, in which the lia-
bility of the master is put as resting upon the relation of principal and
agent ; but in reality it depends upon the relation of master and sei>

170 LIMPUS V. LONDON GENERAL OMNIBUS CO. [CHAP. IL

vant. If the act is one within the scope of the servant's employment,
and is done in the master's service, an action lies against the master,
and the master is liable, even though he has directed the servant to do
nothing wrong. In the present case the act was one which was prop-
erly within the scope of the servant's employment. M'Manus v.
Crickett is ordinarily cited as showing that the master is not liable for
the malicious act of his servant. Of course we do not say that a mas-
ter is responsible for everything which a servant does in the course of
his employment. A great deal has been said as to the act being one
which was purelj' a trespass ; but it was nothing more than the guard
of an omnibus putting a person out who had misconducted himself.
The case of Roe v. The Birkenhead, Lancashire and Cheshire Railway
Compan}' was much considered in this court in the cases of Wilson v.
The Lancashire and Yorkshire Railway Company, and Farren v. The
Lancashire and Yorkshire Railway Company.^ Hule discharged.^

LIMPUS V. LONDON GENERAL OMNIBUS COMPANY.

Exchequer Chamber. 1862.

[1 H. i- C. 526.]

Error on a bill of exceptions. The declaration stated that before
and at the time of the committing of the grievances, &c., the plaintiff
was lawfully possessed of an omnibus and harness, and of horses
drawing the same, which were in a certain public highway. And the
defendants were then possessed of another omnibus, and of horses
drawing the same, which were then under the care, government and
direction of a servant of the defendants, who was then driving the same
in and along the same highwaj'. Nevertheless, the defendants, by their
said servant, so carelessly, negligentlj', and improperl}* drove, gov-
erned, and directed their said omnibus and horses, that b}' and through
the mere carelessness, negligence, and improper conduct of the defend-
ant by their said servant in that behalf, the said horses and omnibus of
the defendants ran against and came in collision with the horses and
omnibus and harness of the plaintiff, and overturned and broke to
pieces and damaged the said omnibus and harness of the plaintiff, and
bruised, wounded, and injui'ed one of the horses of the plaintiff. 3y
means whereof the plaintiff was put to and necessarily incurred expense
in and about endeavoring to cure his said horse and repairing the
damage done to his said harness and omnibus, &c.

1 Not reported. A short note of these cases may be seen in 27 Law Times, 204. —
Rep.

2 Acc: Higgins v. Watervliet Turnpike Co., 46 X. Y. 23 (1871) ; Bayley v. M., S.
& L. Ry. Co., L. R. 8 C. P. 148 (Ex. Ch., 187.3) ; Hoffman v. N. Y. C. & H. R. Railroad
Co., 87 N. Y. 2.0 (1881). Seymour v. Greenwood was affirmed in the Exchequer Cham-
ber, 7 H. & N. 355 {1861 ). — Ed.

SECT. II.] LIMPUS V. LONDON GENERAL OMNIBUS CO. 171

Plea. — Not guilty. Issue thereon.

The cause was tried before Martin, B., at the Middlesex Sittings
after Michaelmas terra, 18G1. The bill of exceptions set out the
Judge's note of the evidence, which was (in substance) as follows : —

The driver of the phuntiir's omnibus stated that on the 27th August
he left the bank for Hounslow. Alter he had passed Sloane Street and
was going towards Kensington, he slopped, about the barracks at
Knighlsbridge, to take up two passengers. Tlie defendants' omnibus
then passed him, and got ahead, eight to a hundred yards. In passing,
the driver eased liis pace, and witness went on at his regular pace and
overtook him. Tliere was room in the road for five or six omnibuses.
AVhen witness got up to the defendants' omnibus, it was on the off side
of the road rather than the near ; but there was plent3- of room to pass.
As witness was going to pass, the driver of the defendants' onniibus
pulled across the road, and one of tlie hind wheels touched the shoulder
of witness's near horse. Witness called out and tried to pull up, but
could not. There was a bank there, and the defendants' driver forced
the witness's off horse on to the bank. The wheels of plaintiff's
omnibus went on the bank and threw the omnibus over. On cross
examination the witness stated that the defendants' driver pulled his
horses towards the witness's horses to prevent him passing.

Another witness stated that the defendants' driver drove across the
road purposely to prevent the progress of the plaintiff's omnibus, and
that he considered it a reckless piece of driving.

On behalf of the defendants, the driver of their omnibus stated that
he passed the plaintiffs omnibus, when the driver pulled up on his near
side to take up the two passengers. Afterwards the plaintiff's driver
put his horses into a gallop to overtake the defendants' omnibus. Tlie
witness proceeded to sa}' : "I pulled across him to keep him from
passing me, to serve him as he had served me. His omnibus ran upon
the bank and turned over on its side. I pulled across on purpose."

The witness stated that- he was furnished with the following card :
" London General Omnibus Company (Limited).

"Attention is particularly- directed to the following regulation of the
Company, and the drivers are desired to act in accordance therewith.

" During the journej- he must drive his horses at a stead}' pace,
endeavoring as nearly as possible to work in conformit}' with the
time list. He must not on any account race with or obstruct another
omnibus, or hinder or annoy the driver or conductor thereof in his
business, whether such omnibus be one belonging to the Company or
otherwise.

" By Order. — A. G-. Church, Secretary,
"31 Moorgate St."

Another witness, who was a passenger on the defendants' omnibus
stated that at Knightsbridge ther^ was a contention between the con-
ductors of tlie two omnibuses which should have three ladies, who got
into the plaintiff's omnibus. The defendants' driver wished to go on ;
the plaintiff 's drove him across the road, so that he could not go on.

172 LLMPUS V. LONDON GENEKAL OMNIBUS CO. [CHAP. II.

The defendants' driver said : " I will serve you out when I get on the
road." The plaintiff's omnibus went on first, and stopped at the
barracks to take up two passengers, when the defendants' omnibus
passed it. When near Gore Lane, the defendants' driver maliciously
and spitefully drove his horses suddenly to the footpath, not allowing
the after omnibus any space at all.

Martin, B., directed the jury " that, when the relation of master
and servant existed, the master was responsible for the reckless and
improper conduct of the servant in the course of the service ; and that
if the ]\\vy believed that the real truth of the matter was that the
defendants' driver, being dissatisfied and irritated with the plaintiff's
driver, whether justly or unjustly, by reason of what had occurred, and
in that state of mind acted recklessl3', wautonh', and improperl}', but in
the course of his service and employment, and in doing that which he
believed to be for the interest of the defendants, then the defendants
were responsible for the act of their servant : that if the act of the
defendants' driver, in driving as he did across the road to obstruct the
plaintiff's omnibus, although a reckless driving on his part, was never-
theless an act done by him in the course of his service, and to do that
which he thought best to suit the interest of his employers and so to
interfere with the trade and business of the other omnibus, the defend-
ants were responsible : that the liability of the master depended upon
the acts and conduct of the servant in the course of the service and
employment ; and the instructions given to the defendants' driver, and
read in evidence to the jur}', were immaterial if the defendants' driver
did not pursue them ; but that if the true character of the act of the
defendants' servant was, that it was an act of his own, and in order
to effect a purpose of his own, the defendants were not responsible."

The defendants' counsel excepted to the said ruling, for that the said
Baron misdirected the jury in telling and directing them as aforesaid ;
and, further, that, the learned Baron ought to have told the jury that,
if the}' believed that the defendants' driver wilfully drove across the
road as aforesaid, even for the purpose of merely obstructing the plain-
tiff's omnibus, the defendants were not responsible, and he ought to
have told and directed the jurj- that for an act wilfully done by the
servant of the defendants against the orders of his employers contained
in the said paper or card, even though at the time of doing it he was in
the course of driving for his employers, the defendants were not respon-
sible : that the learned Baron ought to have told the jury that there
was no evidence to justif}' them in finding that the driver of the defend-
ants' omnibus, in doing the act complained of, was acting in the course
of his employment ; and he ought to have told them that there was no
evidence to warrant them in finding for the plaintiff, and ought to have
directed them to find their verdict for the defendants. The jury gave a
verdict for the plaintiff, with £35 damages.

Mellish {Matthews with him) now argued^ for the plaintiffs in

1 Before Wightman, J., Williams, J., Crompton, J., Willes, J., Byles, J,
and Blackburn, J. — Rep.

SECT. IJ.] LIMPUS V. LONDOxV GENERAL OMNIBUS CO. 173

error (the defendants below). The direetion of tlie learned Judge was
erroneous. There was evidence that the defendants' driver wilfully
and recklessly drove across the plaintiff's omnil>us for the purpose of
impeding its progress. It is not contended that the fact of the servant
having committed a wilful trespass necessarily, of itself, absolves the
master from responsibilit}', but it is submitted that a master is not
liable for a wilful trespass committed by his servant, unless it was
done in obedience to the master's orders, or was within the scope of
the servant's employment. Here the defendants' servant was employed
to drive his omnibus, and if the wrongful act had been done in the
course of that employment the defendants would be liable ; but they are
not if the act was done by tlie servant for some purpose of his own.
The learned Judge made it an essential part of his direction, whether
the defendants' driver was doing that which he believed to be for the
interest of his employer ; whereas the real question was whether the
driver thought the act necessary for carrying out his masters' orders.
The true rule is laid down in Croft v. Alison, 4 B. & Aid. 590 : " If a
servant driving a carriage, in order to effect some purpose of his own
wantonl}' strike the horses of another person and produce the accident,
the master will not be lial)le. But if, in order to perform his master's
orders, he strikes, but injudiciously and in order to extricate himself
from a difficulty, that will be negligent and careless conduct, for wliich
the master will be liable, being an act done in pursuance of the servant's
employment." [Williams, J. If a driver in a moment of passion
vindictively strikes a horse with a whip, that would not be an act done
in the course of his employment ; but in this case the servant was
pursuing the purpose for which he was employed, viz., to drive the
defendants' omnibus. Suppose a master told his coachman not to
drive when he was drunk, but he nevertheless did so, would not the
master be responsible?] Here the defendants' driver recklessly and
pnrposeh' obstructed the plaintiff's omnibus. That was not an act
within the scope of his employment, and was contrary to the orders
given to him by his master. If the action had been against the
servant, it must have been in trespass, not case. [Blackburn, J.
If the defendants' driver did the act to effect some purpose of his own,
the case would fall within the latter part of the direction.] The doc-
trine laid down in Croft v. Alison was recognized and adopted in
Seymour v. Greenwood, 7 H. & N. 355. [Ckomptox, J. Was not
the driver carrying out his masters' purposes in attempting to get
before the other omnibus and pick up passengers?] He states that he
drove across the plaintiff's omnibus to prevent it from passing him,
and to serve the plaintiff's driver as the plaintiff's driver had served
him. [WiGHTMAN, J. Would the master have been responsible if
the servant had thought it for his master's interest to drive against the
other omnibus and overturn it?] Lyons v. Martin, 8 A. & E. 512,
decided that a master is answerable in trespass for damage occasioned
by his servant's negligence in doing a lawful act in the course of his

174 LI.MPUS V. LONDON GENERAL OMNIBUS CO. [CHAP. IL

service ; but not so if the act is in itself unlawful, and is not proved to
have been authorized b}' the master. Here the servant wilfully did an
act which he knew he had no right to do, and which he was instructed
by his master not to do ; and it can make no difference that he believed
it to be for the benefit of his master, since it was not within the scope
of his employment.

Ziush, for the defendant in error (the plaintiff below). The direc-
lion was right. The true test is whether the servant, in doing the
particular act, ceased to be the agent of his master, and did it solel}' for
his own purposes. If the defendants' driver had wilfully driven against
the other omnibus and overturned it, the jury could not have found that
he did it in the course of his employment or for the benefit, or supposed
benefit, of his master. The object of the defendants was to get as
much traffic as the}' could on the road, and their driver, in doing the
wrongful act, was attempting to carr}' out that object. [Cromptox, J.
It was merely an act of wrongful driving.] Suppose the defendants
had told their driver not to drive faster than seven miles an hour, but
he did so, would not the defendants be liable for damage resulting from
it? The defendants' driver drove across the other omnibus, not for an}'
purpose of his own, but believing that it was for the interest of his
masters to prevent that omnibus from passing him. [Williams, J.
Suppose the driver of an omnibus saw a passenger waiting at a distance,
and, in order to reach him before another omnibus, drove at full speed
and thereb}' ran over a person, would not the master be liable?] Tlie
fair meaning of the direction is that, if the defendants' servant did the
wrongful act in order to effect an}' purpose of his own, they are not
liable, but, if the act was done in the course of the employment or for
the benefit of the defendants, they are responsible. That is directly
within the principle laid down in Croft v. Alison, 4 B. & Aid. 590, and
Seymour v. Greenwood, 7 H. & N. 355. The argument on the part of
the defendants would limit the responsibility of a master to acts which
are strictly within the authority of the servant. But a servant has a
discretion intrusted to him by his master as to the pace and mode of
driving. Lyons v. Martin, 8 A. & E. 512, merely decided that a
master is not liable in trespass for a wilfully unlawful act of his ser-
vant unauthorized by him. — He also referred to Kyle v. Jeffres, 3
Macq. 611.

JfelUsh replied. Cur. adv. vult.

The learned Judges having differed in opinion, the following judg-
ments were now delivered.

WiGiiTMAN, J. It appears by the evidence in this case that the
defendants were the proprietors of an omnibus plying between the
Bank and Hounslow, which at the time in question was driven by a
coachman in their service ; that whilst upon the road, in the course
of his employment to drive defendants' omnibus from Piccadilly to
Kensington, he wilfully and on purpose, and contrary to the express

SECT. II.] LIMPUS V. LONDON GENEKAL OMNIBUS CO. 175

orders of the defendants, wrongfully endeavored to hinder and obstruct
the passage along the road of another omnibus belonging to the plain-
tilt"; and for that purpose, he, who was ahead of the plaintiff's omnibus
80 or 100 yards, slackened his pace, until the plaintiff's omnibus came
up to him and was about to pass, and he then purposely pulled across
the road in order to prevent and obstruct his progress, and in so doing
ran against one of the plaintiff's horses with his (the defendants')
omnibus, thereby causing considerable damage. The reason assigned
by the defendants' coachman for this wrongful proceeding was that he
pulled across the plaintiff 's coaciiman to keep him from passing, in
order to serve him (the plaintilf's coachman) as he had served him
(the defendants' coachman).

It seems clear upon the evidence that this was wholly a wilful and
unjustiiiable act on the part of the defendants' coachman, and not in
the lawful prosecution of his masters' business.

A master is undoubtedly responsible for an}' damage occasioned b}'
the negligence or carelessness of his servant whilst employed upon his
master's business. In the present case it was no part of his employ-
ment to obstruct or hinder tlie passing of other omnibuses or carriages,
— on the contrary he was directed not to do so.

The case appears to me to fall within the principle of the decision in
the case of Croft v. Alison, 4 B. & Aid. 590, cited upon the argument.
In that case the court said that the distinction was this: ''That if a
servant driving a carriage, in order to effect some purpose of his own
wantonly strikes the horse of another person and thereby jjroduccs an
accident, the master is not liable. But if, in order to perform his
master's orders, he strikes, but injudicioush' and in order to extricate
himself from a difficultv, that will be negligent and careless conduct for
which the master will be liable, being an act done in pursuance of the
servant's employment."

In the case of L3-ous v. Martin, 8 A. &. E. 515, Mr. Justice
Patteson, in his judgment, says, " Brucker v. Fromont, 6 T. R. 659,
and other cases, where the master has been held liable for the conse-
quences of a lawful act done negligently by his servant, do not appl}-.
Here the act was utterly unlawful. A master is liable where his servant
causes injury by doing a lawful act negligently, but not where he wilfully
does an illegal one," There are other cases, some of which were cited
upon the argument, to the same effect. In the present case the defend-
ants' coachman wilfully did an illegal act contrary to his masters' orders,
and quite be3-ond the scope of his employment. In this view of the case,
it appears to me that, if the evidence of the defendants' coachman was
believed, as well as that of the other witnesses in the case, the verdict
ought to have been for the defendants. The question, however, before
us is whether the direction of the learned Judge to the jury, as it
appears upon the bill of exceptions, was right in point of law upon the
case as it appeared in evidence. I entertain the highest and most
sincere respect for the opinion of my brother Martin, but it does

176 LIMPUS V. LONDON GENERAL OMNIBUS CO. [CHAP. IL

appear to me that the mode in which the questions were put to the jury
was such as might mislead them, and induce them to find a verdict
which I cannot but think was wrong.

He appears to have told them ''that if the act of the defendants'
driver in driving as he did across the road to obstruct the plaintiff's
omnibus, although a reckless driving on his part, was nevertheless an
act (lone by him in the course of his service^ and to do that which he
thought best to suit the interests of his employers and to interfere with
(he trade and business of the other omnibus, the defendants were
responsible ; and that the liability of the master depended upon the
acts and conduct of the servant in the course of the service and
employment, and that the instructions given to the coachman not to
obstruct another omnibus or hinder or annoy the driver in his business
were immaterial."

It certainly appears to me that the wilfully or wrongfully attempting
to obstruct the progress of another omnibus contrary to the express
directions of the defendants, though done by their coachman whilst
employed in the service of the defendants, cannot be considered an act
done b}' him in the course of his service. It was quite beside the
course of his service and what he was employed to do ; and I cannot
consider the express prohibition to the coachman to do what he did as
immaterial in considei-ing what was the course of his service in that
respect. This was not a case of reckless or careless driving, but of
wilfully and wrongfully attempting to obstruct the passage of another
omnibus, and in so doing running against one of the horses. This
cannot, I think, under the circumstances, be considered as an act done
in the course of his service, even though the coachman might think that
it was for his masters' interest bj- such wrongful means to obstruct the
business of the other omnibus. The defendants' coachman was not
employed to obstruct or hinder the plaintiff's omnibus, nor was it in
the course of his service, in the proper sense, to do so. Upon the
evidence it was entirelj' his own wrongful and wilful act, for which I
think, according to the distinction taken in the cases to which I have
referred, the defendants are not responsible. The jur}-, upon the
direction to which I have referred, might well have thought that if the
act was done during the time that the defendants' coachman's employ-
ment was to drive their omnibus, and that he thought it for their benefit
to obstruct the other omnibus, the defendants would be liable. This I
think was wrong for the reasons I have given ; and I am therefore of
opinion that there should be a trial de novo.

Williams, J., said. — I am of opinion that the judgment ought to
be affirmed. If a master employs a servant to drive and manage a
carriage, the master is responsible for an}' misconduct of the servant in
driving and managing it which must be considered as having resulted
from the performance of the duty intrusted to him, and especially if he
was acting for his master's benefit and not for any purpose of his own.
I think that the summing up of my brother Martin was substantially in

SECT. II.] LIMPUS V. LONDON GENERAL OMNIBUS CO. 177

accordance with that doctrine, and therefore there is no foundation for
the bill of exceptions.

Crompton, J., said. — I must confess that ray mind has altered in
the course of the discussion. At first I was inclined to the opinion
which m}' brother Wightman has expressed, but my present impression
is in favour of the view of my brother Williams^ that the injury resulted
from an act done in the course of the driving and management of the
omnibus. I do not follow ray brother Wightman in one respect (for
which however he has the authority of Patteson, J., in Lyons v. Martin,
8 A. & E. 515, as to its being necessary that the act done by the ser-
vant should be a lawful act, for later cases sliow that the act need
not be lawful in order to fix the master with responsibility ; but my
doubt has been whether this was an act done within the scope of the
driver's authorit}-, in other words, whether he was acting in the course
of the driving or management of the omnibus. It appears by the
evidence of the driver that he was driving the defendants' omnibus in
an improi)er way, for, without intending to touch the horses of the
plaintiff's omnibus, he drove so near to it, for the purpose of keeping
it from passing him, that he caused the accident. It is not necessary
to say what vvould have been the case if the driver had used the omni-
bus so as to block up the road ; as it is, I cannot see that the direction
of my brother 3Iartin was necessaril3' wrong. If the matter had come
before us on a motion for a new trial, it ma}' be that I should have
agreed with nn- brother Wightman, for the question might have been
presented in such a wa}' as to bring it more clearlv before the jury, and
it is possible that some expressions of the learned Judge may have led
them to a wrong conclusion. But the question now is, whether any of
the exceptions show that the learned Judge was wrong in point of law.
Throughout his summing up he left it to the jur^' to sa^- whether the
injurv resulted from an act done bv the driver in the course of the
service and for his masters' purposes. That is the true criterion ; and
I cannot see anything necessarilv wrong in the ruling of my brother
Martin. Therefore, though with considerable doubt, I do not think
that we ought to reverse the judgment of the Court below.

WiLLEs, J., said: I am of opinion that the judgment of the Court
below ought to be affirmed. The direction of va\ brother JIartin was
in accordance with principle and sanctioned bj' authority. It is well
known that there is virtually no remed}' against the driver of an omni-
bus, and therefore it is necessary that, for injur}- resulting from an act
done by him in the course of his master's service, the master should
be responsible ; for there ought to be a remed}- against some person
capable of paying damages to those injured by improper driving. This
was treated b}- ni}- brother Martin as a case of improper driving, not a
case where the servant did anything inconsistent with the discharge of
his duty to his master, and out of the course of his employment. The
defendants' omnibus was driven before the omnibus of the plaintiff, in
order to obstruct it. It may be said that it was no part of the duty of

178 LIMPUS V. LONDON GENERAL OMNIBUS CO. [CHAP. IL

the defendants' servant to obstruct the plaintiff's omnibus, and more-
over the servant had distinct instructions not to obstruct an}' omnibus
whatever. In my opinion those instructions are immaterial. If dis-
obeyed, the law casts upon the master a liabilit}' for the act of his
servant in the course of his employment ; and the law is not so futile
as to allow a master, by giving secret instructions to his servant, to
discharge himself from liabilitj'. Therefore, I consider it immaterial
that the defendants directed tlieir servant not to do the act. Suppose
a master told his servant not to break the law, would that exempt the
master from responsibility for an unlawful act done by his servant in
the course of his employment?

But there is another construction to be put upon the act of the servant
in driving across the other omnibus ; he wanted to get -l^efore it. Tliat
was an act done in the course of his employment. He was employed
not onl}' to drive the omnibus, which alone would not support this
summing up, but also to get as much money as he could for his master,
and to do it in rivahy with other omnibuses on the road. The act of
driving as he did is not" inconsistent with his employment, when ex-
plained by his desire to get before the other omnibus. I do not speak
without authority when I treat that as the proper test. Take the ordi-
nar}' case of a master of a vessel, who it must be assumed is instructed
not to do what is unlawful but what is lawful, if he has distinct instruc-
tions not to sell a cargo under any circumstances, but he does so under
circumstances consistent with his duty to his master, the master is
liable in damages to the person whose goods are sold.

It appears to me that the summing up is in accordance with the
principle that a master is liable for acts done by his servant in the
course of his employment. It is also consistent with authority. I need
onlj' refer to the authority of Lord Holt in Tuberville v. Stampes, 1 Ld.
Rayra. 264, and of Lord Wensleydale in Huzzey v. Field, 2 C. M. &
R. 432. It is part of the history of the law that the judgment in Huzzey
V. Field, although delivered b}' Lord Abinger, was prepared b}' Lord
Wensleydale. That learned person there laid down that the proper
question is whether the servant was acting at the time in the course of
his master's service, and for his master's benefit ; if so, his act was that
of his master, although no express command or privity of his master
was proved. It seems to me that in so laying down the law he was
strictly accurate ; and I feel bound to say that it is for the interest of
every person (for all are liable to be injured by servants), that he
should not be without remedy b}- the law being loosely administered.
I entertain no doubt that the direction was correct, and that the judg-
ment ought to be affirmed.

Byles, J., said. — I am also of opinion that the direction of my
brother JIartin was correct. He used the words " in the course of his
sen'ice and employment," which, as my brother WiUes has pointed out,
are justified by the decisions. The direction amounts to this, that if a
servant acts in the prosecution of his master's business for the benefit

SECT. II.] LIMPUS V. LONDON GENERAL OMNIBUS CO. 179

of his master, and not for the benefit of himself, the master is liable,
although the act may in one sense be wilful on the part of the servant.

It is said that what was done was contrary to the master's instruc-
tions ; but that might be said in ninety-nine out of a hundred cases in
which actions are brought for reckless driving. It is also said that the
act was illegal. So, in almost every action for negligent driving, an
illegal act is iujputed to the servant. If we were to hold this direction
wrong, in almost every case a driver would come forward and exaggerate
his own misconduct, so that the master would be absolved. Looking
at what is a reasonal)le direction, as well as at what has been already
decided, I think this summing up perfectly correct.

Blackburn, J., said. — I am also of opinion that the direction of the
learned Judge was sufficiently correct to afford the jury a guide in the
particular case, which is all that is required. It is admitted that a
master is responsible for the illegal act of his servant, even if wilful,
provided it was within the scope of the servant's employment, and in
the execution of the service for which he was engaged. That the
learned Judge told the jury, and perfectly accurately, but that alone
would not be enough to guide them in coming to a correct conclusion.
It was necessary that the jury should understand the principles which
they must apply in order to ascertain whether the act was done in the
course of the servant's employment. It is upon that part of the sum-
ming up that INIr. 3Iellish has mainly pointed his argument, saying that
it gave the jury a wrong guide.

Now, we nnist look at what the particular employment was, in order
to see what was understood by the jury. The defendants' servant was
the driver of an omnibus, and as such it was his duty, not only to con-
duct it from one terminus to another, but to use it for the purpose of
picking up traffic during the course of the journe}'. He drove across
another omnibus under circumstances from which the ]\\vy might have
thought that it was done for the purpose of wreaking his spite against
the driver of that omnibus. The learned Judge, having to tell the jury
what was the test by which the}' were to determine whether the act was
done in the course of the service or not, used language in which he tells
them, perfectly rightly, that if the act was done in the course of the
service the defendants were responsible ; and he goes on to sa}', " that
if the jurv believed that the real truth of the matter was that the
defendants' driver, being dissatisfied and irritated with the plaintifl^'s
driver, whether justly or unjustly, by reason of what had occurred, and
in that state of mind acted recklessh', wantonly, and impro^Derly, but in
the course of his service and employment, and in doing that which he
believed to be for the interest of the defendants, then the defendants
were responsible for the act of their servant." No doubt what Mr.
3IelUsh said is correct : it is not universally true that ever}' act done
for the interest of the master is done in the course of the employment.
A footman might think it for the interest of his master to drive the
coach, but no one could say that it was within the scope of the foot

180 MURPHEY V. CARALLI. [CHAP, II.

man's employment, and that the master would be liable for damage
resulting from the wilful act of the footman in taking charge of the
horses. But, in this case, I think the direction given to the jury was a
sufficient guide to enable them to say whether the particular act was
done in the course of the emplo3'ment. The learned Judge goes on to
say that the instructions given to the defendants' servant were imma-
terial if he did not pursue them (upon which all are agreed) ; and at
the end of his direction he points out that, if the jury were of opinion
" that the true character of the act of the defendants' servant was that
it was an act of his own and in order to effect a purpose of his own,
the defendants were not responsible." That meets the case which I
have alread}' alluded to. If the jury should come to the conclusion
that he did the act, not to further his masters' interest or in the course
of his employment, but from private spite, and with the object of in-
juring his enem}', the defendants were not responsible. That removes
all objection, and meets the suggestion that the jurj' may have been
misled by the previous part of the summing up.

Under these circumstances, I think that the direction given by the
learned Judge was sufficiently accurate to guide the jury in coming to
a right conclusion, and that there ought not to be a trial de novo.

Judgment affirmed.

MURPHEY y. CARALLI.
Exchequer. 1864.

[3 //. ^ C. 462.] 1

The first count of the declaration (which was the count relied on)
stated that the defendant so carelessly, negligently, wrongfuU}', and
improperly placed a pile of cotton bales in a certain cotton shed or
warehouse, that by and through the mere carelessness, negligence,
wrongful and improper conduct of the defendant in that behalf the
same fell upon the plaintiff, who was then lawfulh' engaged and work-
ing in the said cotton shed or warehouse, and inflicted on him bodily
injuries, and the plaintiff thereby became ill, «S:c.

Plea, — Not guilt}'. Issue thereon.

At the trial, before the Assessor of the Court of Passage for the bor-
ough of Liverpool, the following facts were proved on behalf of the
plaintiff: The defendant was a Liverpool cotton merchant, and he
and another firm of cotton merchants (Messrs. Dixon & Co.) had re-
spectively caused some bales of cotton to be stored in the same ware-
house. The plaintiff having been employed by Messrs. Dixon & Co. to
recanvass their bales, went to the warehouse, and while engaged in re-
canvassing Messrs. Dixon & Co.'s bales received the injuries for which

1 The arguments of counsel are taken from the report in 34 L. J. n. s. Ex. 14. — Ed

SECT. II.] MUliPHEY V. CARA.LLI. 181

this action was brought IVom the fall of one of the defendant's bales.
The defendant's bales liad been stored some days before the accident by
cotton porters in the defendant's employ, under the superintendence of
one Jones, the warehouse keeper employed by the owner of the ware-
house. From the evidence of Jones it appeared that it was his duty to
see the bales piled properly, and that those who piled the bales were
bound to obe^' his directions. He further stated that when the pile was
not made properly at first, he was in the habit of pulling it down and
ordering it to be replied. Evidence was also given that, at the time
when the defendant's bales were piled, they were not properly secured
so as to prevent them from falling. It was not disputed that the cotton
porters were workmen who understood the mode in which bales ought
to be piled. The charges for warehouse room were at a given price per
bale, no exclusive space in the warehouse being allotted to the different
merchants.

The learned Assessor, being of opinion that on this evidence it
appeared that the act which caused the mischief was the act of the
warehouse keeper, directed a nonsuit to be entered.

Littler, on a former day in this Term, obtained a rule nisi for a new
trial, on the ground that there was evidence for the jury of negligence
in the defendant's servants, and that the employment of a warehouse-
man under such circumstances did not protect the defendant ; against
which,

C. -Russell appeared to show cause, contending that, as the damage
was done by a person not under the defendant's control, and the defend-
ant was not the owner of the warehouse or any part of it, but only of
some bales which were stowed there, the nonsuit was right.

Littler, being called on by the Court to support his rule, cited the
case of The Mobile, Swa. Adm. Rep. 127, where it was held tliat the
owners of a vessel in charge of a licensed pilot are not exempted by the
Merchant Shipping Act from liability for damage caused by the vessel,
unless the pilot was exclusively to blame, and there was no blame
attributable to the master and crew ; and contended that the porters
who packed the cotton were the defendant's servants, and that there
was negligence on their part as well as on that of the warehouse keeper.
[Bramwell, B. Is the master responsible for the negligence of his
servants when they act under another person who is not his servant,
but whom they are bound to obey?] Yes. The plaintiff here never
touched the bales that fell, and there was no contributory negligence
on his part. Had they fallen while being piled, the defendant would
clearly have been liable. The warehouse keeper was for this particular
service the servant of the owner of the cotton ; and if the bales had
fallen on one of the defendant's men while engaged in piling, it would
have been said that he and the warehouse keeper were fellow-servants.
It was no part of the warehouse keeper's duty to direct where the
passers-by were to go. He had only to direct where the bales were
to be stowed. He cited Martin v. Temperley, 4 Q. B. 298, and

182 MURPHEY V. CARALLI, [CHAP. II.

Raiulleson v. Murray, 8 Ad. & E. 109, in which lattei case a ware-
hoiiscuum who had engaged a master-porter to move a barrel was
held liable for injury arising from the negligence of the men employed
and the falling of the tackle used by the master-porter.

Pollock, C. B. I am of opinion that the nonsuit in this case was
correct, and that this rule should be discharged. Jones was eniployed
as warehouse keeper by the owner of the warehouse, and as such had
control over the warehouse itself and also over the entrance to it.
"When bales were stowed the3' were stowed under Jones's directions,
and by his orders restowed if not stowed properly at first. The bales
which caused the mischief having been stowed under Jones's directions,
I think that he and his master are alone responsible. The case of Ran-
dleson v. Murray, 8 A. & E. 109, seems at variance with the current of
authority, but it certainly establishes no principle for constraining us to
hold this defendant liable.

Bramwell, B. I also think the nonsuit right. I assent, indeed, to
Mr. Littler s argument, that the men employed by the defendant, while
engaged in piling the bales, were his servants so as to render him re-
sponsible for their acts. And if, while they were so engaged, there had
been an}* negligence on their part with reference to an}' person lawfully
passing by, I think the defendant would be liable. The question may,
therefore, be treated as if the defendant had piled the bales himself.
But suppose he had piled the bales, would he be liable? I think not.
For in that alone there would have been nothing dangerous without the
subsequent act of the warehouse keeper in permitting persons to approach
the bales. Suppose the defendant had been present, and had pointed
out to the warehouse keeper that tlie mode in which the bales were piled
was dangerous. The warehouse keeper might surely have replied that
that was his business, and that he would take the necessary steps to
prevent any one coming near the bales. If from his subsequent omis-
sion to do so any mischief had occurred, the defendant would not be
responsible for that mischief. Take this case. A. delivers at B.'s
house goods which, from their nature, cannot at once be taken in. B.
says: " Put them down in the highway, I will remove them directly,
and will see that in the mean time no one runs against them." A. com-
plies. The goods remain out all night, there is no light, and some one
is injured. Who is responsible? B., the owner of the house, and not
A., for though A.'s act be wilful it would not be dangerous without B.'s
subsequent negligence. So here the defendant is not responsible for
an act which would have produced no mischief without the warehouse
keeper's subsequent negligence. If, indeed, the negligence were of a
covert kind, so as to be less obvious to the warehouse keeper than to
the men engaged in piling the bales, that might be a different case.
For the warehouse keeper might then have no notice of the danger, and
so the mischief might occur without an}* subsequent wrongful act on his
part. But here the danger was at least as patent to the warehouse
keeper as to the men ; and the men were acting under his control, and

SECT. II.] CHAPMAN V. NEW YORK CENTRAL RAILROAD CO 183

the act in itself would not have caused the mischief. The warehouse
keeper is liable, if any one.

Channell, B. I agree that this rule should be discharged ; and the
ground of my opinion is that the act, of which the plaintiff complains,
must be taken to have been done under the direction of the warehouse
keeper. No personal negligence is imputed to the defendant ; and, if
he be liable at all, it must be on the ground that the act complained of
was done by his servants. Now, I agree with my Lord as to the
extent of the wareh'ouse keeper's duties ; and, indeed, that he had a
right to control the mode in which the bales were packed is not dis-
puted. We mu.st presume he was attentive to his duties, and that what
was done was with his approval. Consequently it must be taken to
have been done under his direction. I think, therefore, that although,
for certain purposes, the cotton porters were the defendant's servants,
and although their duties did not terminate on depositing the bales in
the warehouse but continued in the packing, yet in that proceeding, and
in the negligence which then took place, they were not acting as ser-
vants of the defendant, but as the servants of the warehouse keeper and
the owner of the warehouse.

PiGOTT, B. I agree, upon the grounds stated by m}' brother
Chminell. If the warehouse keeper, instead of controlling the mode
in which the bales were packed, had let a certain space in the ware-
house to the defendant, that would be a different case. There would
then be a duty in the person sent to deposit the goods to deposit them
carefully, and if he fiiiled in that duty, the defendant who had appointed
him might reasonably be held responsible. But where the person sent
with the goods stows them under the control of a warehouse keeper,
and is allowed to exercise no discretion as to the mode of stowage, the
sender is not responsible, for he is guilty of no neglect of duty.

Hide discharged.

CHAPMAN, Respondent, v. NEW YORK CENTRAL RAIL-
ROAD COMPANY, Appellant.

Court of Appeals of New York. 1865.

[33 N. Y. 369.]

Campbell, J. The plaintiff brought this action to recover damages
caused b}- the alleged negligence of the defendant in leaving down bars
in the fence on the side of their railroad track, wherebj- the horses of
the plaintiff in the night time escaped from his adjoining field on such
track, and were struck and killed b}' a passing engine of the defendant.
One Andrew Ryan, who was then and had been for some time in the
employment of the defendant as a da}' laborer, receiving his pay
monthly-, but at a fixed rate for each day's labor, on the night of the

184 HOWE V. NEWMARCH. [CHAP. H.

accident took down the bars for the purpose of passing with a team,
being engaged at the time in a business which concerned himself, and
in which the defendant had no interest vvliatever. The bars were left
down by K\an, and through the opening the horses passed on to the
track and were killed. The referee, before whom the cause was tried,
found that while Ryan was thus in the emplo}- of the defendant as a
day laborer, it was understood in virtue of that employment, that he
might be called upon in case of accident to perform extra labor, receiv-
ing compensation therefor, and if, at any time after his day's labor was
over he saw anything amiss, he was required to give necessary- atten-
tion to it without being specially directed so to do. In the language of
Ryan, who was examined as a witness, " If I seen anything amiss after
that, I had to do it." The referee found that under that employment it
was the duty of Ryan as the servant of the company to replace the
bars, and that his negligence was that of the company, and he reported
in favor of the plaintiff, and the judgment was affirmed in the seventh
district.

Jf the bars had been taken down by others, and Ryan, occupying
the relation he did to the compan}', had seen them, or had been notified,
there can be no doubt but it would have been his duty at once to have
put them up. That he took them down himself can make no difference.
The neglect of duty was in leaving them down. For that negligence,
and which caused the loss of the plaintiff's horses, I think the company
must answer in damages. That Ryan was intoxicated at the time was
the misfortune of the compan}-. That he had been retained in his
place when known to be intemperate, was the fault of his immediate
superior officers. But I am unable to see how this question of intoxi-
cation in any way affects the legal rights of the plaintiff, who seeks
simply to recover for the loss of his property', caused by the neglect of
the defendant's servant. The judgment should be affirmed.

Judgment affirmed.

HOWE V. NEWMARCH.
Supreme Judicial Court op Massachusetts. 1866.

[12 Allen, 49-1

Tort to recover damages sustained b}' reason of the negligence of
the defendant's servant, in driving against the plaintiff in Cambridge.

At the trial in the Superior Court, before Vose, J,, it appeared that
the defendant was a baker and employed William S. Brown to drive
his wagon and deliver bread to his customers. There was a city ordi-
nance prohibiting riding or driving upon any sidewalk in Cambridge.
The plaintiff introduced evidence tending to show that on the morning
of July 9th, 1857, he came upon a sidewalk in Cambridge, in front of a

SECT. II.] HOWE V. NEWMARCH. 185

house owned bj' him, and turning to walk upon it he saw the defend-
ant's horse and wagon upon the same sidewalk, in front of another
house near by, and facing towards him ; that he proceeded on the side-
walk till he got witiiiu some twelve feet of the horse, when Brown
came out from tliat house prett}' fast, threw his basket upon the wagon,
and jumped to get on the seat, and the horse started, and the plaintiff
turned round to escape, when the horse struck him and he was thrown
down and injured.

The defendant introduced evidence tending to show that, on the day
before the one referred to above, the plaintiff had told lirown not to
drive on the sidewalk in front of his premises, and they then had some
dispute together, and, on the morning of Juh' 9, when Brown came
out from the house, the plaintiff stood leaning against the fence, and,
as soon as the horse started, the plaintiff walked across the sidewalk
and caught him by the bridle and pulled him in towards the fence, and
Brown jumped off and told the plaintiff to let go of the horse, which he
did, and Brown got in and started again, and as he began to turn the
horse into the street the plaintiff took hold of him again, and Brown
again told him to let go, and the plaintiff did not let go, and Brown,
after again telling the plaintiff to let go, started the horse, and the
plaintifT, who still held on to the bridle, was thrown down. There was
no evidence that the defendant knew of Brown's habit of driving on the
sidewalk, or had ever given directions where he should drive.

The plaintiff requested the court to instruct the jury as follows :

" 1. If the jur}' are satisfied that the defendant's servant, with his
team, met the plaintiff on the sidewalk adjoining the plaintiffs prem-
ises, and neither of them would give the road, and the defendant's
servant insisted on proceeding on the sidewalk, and a contest ensued
in which the servant urged on his team, by means of which the plaintiff
sustained an injurv, a verdict should be rendered for the plaintiff, unless
the injur}' resulted from want of due care on the part of the plaintiff.
2. If at the time of the injury the defendant's servant was engaged in
the business of the defendant, and within the scope of his duty as such
servant, and he drove the horse over the plaintiff and did him an injury,
the defendant is responsible, whether the act was done wilfulh' or neg-
ligentl}', the plaintiff being in the exercise of due care himself."

The judge declined to give the instructions prayed for, but did
instruct the jury that, " if they were satisfied that the defendant's ser-
vant, with his team, met the plaintiff on the sidewalk adjoining the
plaintiffs premises, and neither of them would give the road, and the
defendant's servant insisted on proceeding on the sidewalk, and a con-
test ensued in which the defendant's servant carelessh" or negligently,
but without the purpose or intention of driving against the plaintiff or
doing him an injury, urged on his horse, by means of which the plain-
tiff sustained an injury, a A-erdict should be returned for the plaintiff,
unless the want of due care on the part of the plaintiff contributed to
the injur}'. And if Brown, while acting as the sen-ant of the defendant

186 HOWE V. NEWMARCII. [CHAP. II.

in driving from house to house and deUvering bread, wilfully and
intentionally drove the horse upon the plaintiff for the purpose of car-
rying out liis wish to drive unlawfully upon the sidewalk opposite the
plaintiffs house, notwithstanding the remonstrance of the plaintiff, and
thereby caused the injury complained of, and he did this without any
previous direction or authority from the defendant, then the defendant
is not responsible for such wrongful act of his servant."

The jury returned a verdict for the defendant, and the plaintiff
alleged exceptions.

C. II. Hudson {A. Cottrell with him), for the plaintiff.

S. J. Thomas^ for the defendant.

Hoar, J. The second instruction requested by the plaintiff at the
trial, that "if at the time of the injury the defendant's servant was
engaged in the business of the defendant, and within the scope of his
duty as such servant, and he drove the horse over the plaintiff and did
him an injury, the defendant is responsible, whether the act was done
wilfully or negligently, the plaintiff being in the exercise of due care
himself," seems to have been stated with substantial accuracy. It
makes the test of the defendant's liability, not the intention of the ser-
vant, but the fact that the injurious act was done while engaged in his
master's business, and within the scope of his duty as a servant. If
the act of driving over the plaintiff was done wilfully, still it may also
have been done negligently in the view of the law ; that is, in disregard
of the plaintiff's rights, and neglect and omission of the precautions
necessary- to his safety-. It is obvious that the test of the master's lia-
bility cannot be whether the servant is a trespasser ; for he who uses
force upon the person or property of another is a trespasser, whether
his violence be accidental or intentional, if it is without lawful justifi-
cation. But if the servant is strictly within the scope of his employ-
ment, doing his master's work, and, for the purpose of doing what he is
employed to do, does it in a manner which violates the rights of another,
it is difficult to see wh^- the master should be exempted from responsi-
bilit}', because the servant knows th.at his act will be injurious, and
intends to do it. If the consent of the master is made the ground of
his liabilit}', the master is no more consenting to the thoughtless negli-
gence of his servant than to his wilful negligence. The authorities all
agree that, where an action is brought against the master for an injury
occasioned by the servant's negligence in his service, it is no defence
to show that the master directed the servant to be careful ; or even
that he cautioned him against the particular act of negligence which
produced the injur}-. Southwick v. Estes, 7 Cush. 385.

The act which causes the injury ma}' be precisely the same, whether
merely careless or intentional, and the authority of the master wanting
as much in one case as in the other. Thus, if a servant driving his
master's carriage becomes entangled in a crowd of other carriages, and
is impatient to drive on, and there is not room to pass with safety, and
reasonable care and prudence would require him to wait ; but he per-

SECT. II.] HOWE V. NEWMAKCH. 187

sists in driving on, and in so doing strikes another carriage ; this is
negligence for which the master is responsible. Is the master's respon-
sibility at an end if it is shown that the servant saw that he should
strike the other carriage, and intended to extricate himself by so doing?
He is in his master's employment in the one case as in the other. If
his master has directed him to drive carefully, he is in each case alike
acting without his master's authority or approval. His purpose in
each case ma}' be to do his master's work which he is employed to do.
In the former, be does not think of or care for the rights of the other
party, and so is neghgent. In the latter, he perceives and understands
the riglits of the otiier party, but determines to disregard tliem.

It is not easy to reconcile the numerous cases on this subject. The
leading case on which the defendant relies is M'Manus v. Crickett, 1
East, lOG. That case merely decided that trespass vi et arrtiis would
not lie against a master for the wilful trespass of his sei'vant, which
was not autliorized or consented to by the master, either dlrecth- or by
implication from the nature or subject matter of his employment. The
decision rests entirely upon the distinction between trespass and tres-
pass on the case. Lord Kenyon says that " when a servant quits
sight of the object for which he is employed, and, without having in
view his master's orders, pursues that which his own malice suggests,
he no longer acts in pursuance of the authoritv given him, and, accord-
ing to the doctrine of Lord Holt, his master will not be answerable for
such act." But he adds that " this doctrine does not at all militate
with the cases in which a master has been holden liable for the mis-
chief arising from the negligence or unskilfulness of his servant wlio
had no purpose but the execution of his master's orders ; " but that the
form of such action must be case and not trespass. There is nothing
in the opinion which bears upon the intermediate case of a servant who
does not "quit sight of the object for wliich lie is employed," but for
the purpose of executing his master's orders, and in the course of his
emplo3'ment does an act injurious to another, or in disregard of his
rights. The case of Savignac r. Roome, 6 T. R. 125, and Ogle v.
Barnes, 8 T. R. 188, turned upon the same distinction between tres-
pass and case.

M'Manus v. Crickett has been recognized as an authority in this
Commonwealth in Foster v. Essex Bank, 17 Mass. .510; which was
an action against the bank for the amount of a special deposit in gold
which had been stolen from the vault by the cashier or chief clerk.
The bank was held not liable for the loss. The court state the general
rule to be, " that to make the master liable for any act of fraud or
negligence done bv his servant, the act must be done in the course of
his employment ; and that if he steps out of it to do a wrong, either
fraudulenth' or felonious!}', towards another, the master is no more
answerable than any stranger." In Lyons v. Martin, 8 Ad. & El. 512,
the master had employed his servant to distrain horses damage feasant
in his close ; and it was held that he was not answerable in trespass

188 HOWE V. NEWMARCH. [CHAP. IL

for the act of his servant in driving the plaintiffs horse from the high-
way into tlie close in order to distrain him, as not being an act done
by the master's authority, or in the course of the servant's employment.
In Richmond Turnpike Co. r. Vanderbilt, 1 Hill, 480, it was held that
the owner of a steamboat is not responsible in an action on the case,
for the wilful misconduct of the master in running her against and
injuring another boat. And in Wright v. Wilcox, 19 Wend. 843, it
was decided that if the act of the servant was wilful, although in the
performance of his master's business, the master is not responsible in
an action on the case, because " the law holds such wilful act a depart-
ure from the master's business."

This distinction has not been approved by several of the text writers.
It is questioned b}' Judge Ileeve in his treatise on the Domestic Rela-
tions, 357, 358; in Redfield on Railway's, 384, note; and is stated
with some qualifications in Smith on Master & Servant, 1 72 et seq.

In Croft V. Alison, 4 B. & Aid. 590, the Court of King's Bench say
that "the distinction is this: if a servant driving a carriage, in order
to effect some purpose of his own, wantonly strike the horses of another
person, and produce the accident, the master will not be liable. But
if, in order to perform his master's orders, he strikes, but injudiciously,
and in order to extricate himself from a difficult}', that will be negligent
and careless conduct, for which the master will be liable, being an act
done in pursuance of the servant's employment." The case showed
that the defendant's servant had wilfully struck the plaintiff's horses,
when driving his master's carriage, in order to extricate himself from
an entanglement of the carriages occasioned bj* his own fault, and
thereby had caused an injur}' to the plaintiff's carriage ; and a verdict
for tlie plaintiff was supported. The action was case for negligence.

In Seymour v. Greenwood, 6 Hurlst. & Norm. 359, Chief Baron
Pollock asks the question, " Suppose a servant driving along a road,
in order to avoid a danger intentional!}' drove against the carriage of
another, would not the master be responsible?" And in Limpus v.
London General Omnibus Co., 1 Hurlst. «fe Colt. 526, it was decided
in the Exchequer Chamber that the master is responsible if the servant
is in the course of doing the master's work, and does the act to accom-
plish it.

Wherever there is a contract between the master and another person,
the master is responsible for the acts of his servant in executing the
contract, although the act is fraudulent, and done without his consent.
So far the authorities are uniform. And this court has held the master
answerable as a trespasser, where the servant committed a trespass in
the course of his employment, and the business in which he was em-
ployed implied the use of force or violence to the persons or property
of others, although the trespass consisted only in the use of force
excessive in degree. Moore v. Fitchburg Railroad, 4 Gray, 465 ;
Hewett V. Swift, 3 Allen, 420.

The instructions asked b3^ the plaintiff at the trial were refused ; and

SECT. II.] HOWE V. NEWMARCH. 189

the court instructed the jury that if the defendant's servant carelessly
or negligently, but without the purpose or intention of driving against
the plaintiff, urged on his horse, and so injured him, the defendant
would be answerable; but that if the servant, "while acting as the
servant of the defendant in driving from house to house and delivering
bread, wilfully and intentionally drove the horse ujjon the plaintiff for
the purpose of carrying out his wish to drive unlawfully upon the side-
walk opposite the plaintiff's house, notwithstanding the remonstrance
of the plaintiff, and thereby caused the injury- complained of, and he
did this without any previous direction or authority from the defendant,
then the defendant was not responsible."

The objection to the latter branch of the instruction is, that it gives
the jury no guide for their action in case they should find that the ser-
vant was within the scope of his employment, and was intending to do
his master's work ; and that his intention to drive against the plaintiff
was only as a means of doing it. We think that, upon the facts
reported, the jury might have been satisfied that the servant's driving
on, though intentional, was not merelj' for the purpose of injuring the
plaintiff. lie was already upon the sidewalk, and may have wished to
go on for the purpose of continuing his journey, and delivering bread
to his master's customers, although he saw that in so doing he should
drive against the plaintiff, who was resisting his progress. lie would
not then have been acting for a purpose of his own, losing sight of the
object for which he was employed.

With the views we have taken of the law, we think the instructions
given were defective, and that they did not fully supplv the rule which
the case required. The rule may be stated thus : The master is not
responsible as a trespasser, unless by direct or implied authority to the
servant he consents to the wrongful act. But if the master give an
order to a servant which implies the use of force and violence to others,
leaving to the discretion of the servant to decide when the occasion
arises to which the order applies, and the extent and kind of force to
be used, he is liable, if the servant in executing* the order makes use
of force in a manner or to a degree which is unjustifiable. And in an
action of tort in the nature of an action on the case, the master is not
responsible if the wa'ong done b}' the servant is done without his author-
ity, and not for the purpose of executing his orders or doing his work.
So that if the servant, wholly for a purpose of his own, disregarding
the object for which he is employed, and not intending b}- his act to
execute it, does an injury to another not within the scope of his
employment, the master is not liable. But if the act be done in the
execution of the authorit}' given him b}' his master, and for the pur-
pose of performing what the master has directed, the master will be
responsible, whether the wrong done be occasioned bj' negligence, or
b}' a wanton or reckless purpose to accomplish the master's business in
an unlawful manner.

Tt is not certain that the point to which the exceptions apply was

190 WOOD V. COBB. [chap. II.

essential to the decision of the case. If the plaintiff's evidence were
believed, it would seem to be a case of negligence for which the jury
were instructed that the master would be responsible. If the defend-
ant's evidence were entitled to credit, the plaintiff could hardl}^ have
recovered, by reason of the want of ordinary care on his own part.
But we cannot judicially know what view the jur}- ma}' have taken of
the evidence ; and the ruling of the court appearing to be defective,
there must be a new trial.

Exceptions sustained.^

WOOD V. COBB.
Supreme Judicial Court of Massachusetts. 1866.

[13 Allen, 58.]

Tort to recover damages for a personal injury, received in conse-
quence of the neglect of the defendants' servant, in driving against the
plaintiff.

At the trial in the Superior Court, before Morton, J., there was evi-
dence tending to show that while the plaintiff was walking in a highway
in Worcester a wagon was driven against him by a boy named Wheeler ;
that Wheeler was employed by the defendants, Cobb & Atwood, who
were dealers in fish, and the wagon had just left their place of business
loaded with their fish.

Thomas R. Foster, a truckman, testified that the defendants em-
ployed him to deliver all their parcels of fish every Friday to their
customers, for the sum of one dollar ; that he received the parcels in
baskets, labelled where to go ; that he took whatever route he chose,
and suited his own accommodation ; that at the time of the accident he
had been sick several weeks and confined to his house; that he thought
he told Pierce, his boj-, to get some help if necessary' ; and that on the
day of the accident he told Pierce to take the team up and tell the
defendants they could have it if they wanted it.

Pierce testified that Foster had two teams ; that on the day of the
accident " Foster told me to ask Mr. Cobb if his boy could drive for
me. I saw Wheeler, and asked him if he could drive for me. He said
he did not know, must ask Mr. Atwood. Went in and asked Mr.
Atwood if he could drive for me that morning. He said he might.
He took the light team. At other times while Foster was sick, I had
help elsewhere." Pierce and Atwood testified to substantially the
same facts.

The judge instructed the jury that, if they believed the evidence of

1 Ace. : Wallace v. Navigation Co., 134 Mass. 95 (1883) ; Texas & P. Ry. Co v
Scoville, 62 Fed. R. 730 (C. C. A., Fifth Circuit, 1894). —Ed.

SECT. II.] I'OULTON V. LONDON' AND SOUTH-WESTERN RY. CO. 191

these witnesses as to what took place at the defendants' shop, the
plaintiff could not recover ; and tlie jury returned a verdict for the
defendants. The [)lainti(r alleged exceptions.

/-*. J^. Aldrich <t' //'. ^1. Willia/iis, for the plaintiff.

G. F. Hoar & A. Uadmun, for the defendants.

BiGELOw, C. J. There was no error in tlie instructions. The testi-
mony of the witnesses introduced b}- the defendants would warrant no
other inference than tliat the person who was in charge of the horse
and wagon at the time the injury was done to the plaintiff was not in
the employment or service of the defendants, but was acting as the ser-
vant of a third person, who exercised an independent employment in no
way subject to the command or control of the defendants as to the mode
in which it should be carried on. It is too well settled to admit of debate
that under such circumstances no liability for the acts done attached to
the defendants. Brackett v. Lubke, 4 Allen, 138 ; Forsyth v. Hooper,
11 Allen, 419, 421. Exceptions overruled.

POULTON V. LONDON AND SOUTH-WESTERN RAIL-
WAY CO

Queen's Bench. 1867.
[L. R. 2 Q. D. 534.]

Declaration, that the defendants, bv their servants, assaulted the
plaintifT, and gave him into the custodN' of a policeman, and caused
him to be imprisoned.

Plea, not guilty.

At the trial before Kelly, C. B., at the Hants spring assizes, it
appeared in evidence, that the plaintilT, having the care of a horse,
had taken it b\' the defendants' railway to an agricultural show held
at Salisbury, in June, 1866. Under the railway arrangements ad-
vertised b}' the defendants, horses were to be taken to Salisbury at
the usual rates; "on return free, if remaining unsold, on produc-
tion of certificate to that effect." After the show the plaintiff pro-
duced the proper certificate to the defendants' servants, and the horse
was put into a horse-box without anv payment or booking, and the
plaintiflT having taken a third class ticket for himself travelled by
the same train. On his arrival at his destination, Rorasey Station,
the plaintiff gave up his ticket and the certificate to a porter, and was
taking the horse away along the road when the station master sent after
hira and demanded 6s. \Ocl. for the carriage of the horse, under a
mistaken notion that the horse could not be carried free b\' that train.
On the plaintiff explaining the circumstances and I'efusing to pay, he

192 POULTON V. LONDON AND SOUTH-WESTERN KY. CO. [CHAP. II.

was dttained and taken back to the station by two policemen, acting
under the orders of the station master. After the plaintiff had been
detained half an hour, the station master telegraphed to Salisbury, and
on receipt of a telegram in repl}', " all right," the plaintiff was allowed
to proceed.

The jur}' returned a verdict for the plaintiff for £10, leave being re-
served to move to enter the verdict for the defendants.

A rule having been obtained accordingly, on the ground that the
station master had no authority fi'om the defendants to take the plain-
tiff into custody,

June 28. Prideaux^ Q. C, and Lopes^ showed cause. The defend-
ants, a railway company, can only act by their servants ; the station
master was the person in authorit}', and it must be assumed that he
had authority to do all which the exigency of the business requires, and
the defendants, therefore, are bound by his act in detaining the plain-
tiff. Goff V. Great Northern Railway Company, 30 L. J. (Q. B.) 148 ;
3 E. & E. 672.

[Blackburn, J. In that case there ivas a power to arrest, on the
assumption that the facts were as the officer arresting supposed ; here
there is no such powei". The distinction is kept in view in the judg-
ment in that case, and was expressl}- made bj- an alteration in the
judgment suggested by Sir Hugh Hill, which certainly made the
judgment more strictl}' accurate.]

The arrest in that case was founded on the Railway's Clauses Con-
solidation Act, 1845 (8 Vict. c. 20), ss. 103, 104, which gives power to
detain a person travelling on a railway without having paid '■' his
fare." The plaintiff and his horse travelled by the same train, and
it ma}' well be that the payment for the carriage of the horse and him-
self maj- be treated as one contract, so that the carriage of the horse is
part of the plaintiff's fare. But putting aside that contention, the
station master is placed in a position of authorit}' by the defendants,
and he must be taken to have full authority to exercise his discretion
as to law or fact ; and the defendants must be held liable for his acts
done so far in the course of his duty as to be for their benefit, just as if
they had done the acts themselves. Seymour v. Greenwood, 30 L. J.
(Ex.) 189 ; 6 H. & N. 359 ; Wilson v. Lancashire and Yorkshire Rail-
way Company ; Farren v. The Same, 27 L. T. 204.

[Blackburn, J. In Seymour v. Greenwood, 30 L. J. (Ex.) at
p. 328 ; 7 H. & N. at p. 358 ; in the Exchequer Chamber, "Williams, J.,
delivering the judgment of the court says: " It is urged that, though
it cannot be denied that the defendant authorized his guard to superin-
tend the conduct of the omnibus generally, and that that authority
must include an authority to turn out any passenger who misconducts
himself, yet that it gives no authority to turn out an unoffending pas-
senger. But by giving the guard authority to turn out an offending
passenger the defendant necessarily gave him also authority to judge
for himself who should be considered an offending passenger." That

SECT. II.] I'OULTON V. LONDON AND SOUTH-WESTERN RY. CO. 193

is in exact accordance with Goff v. Great Northern Railway Compan}',
30 L. J. (Q. B.) 148 ; 3 E. cfe E. 672.]

It i« a very fine distinction to sa\' that the master is Hable for a
mistake of facts, but not for a mistake of law, when the servant is
Stri(;tly acting in his master's service.

[Blackbuun, J. It has been decided in the Exchequer Chamber, in
the somewhat analogous case as to notice of action, that a bond fide
mistake of facts entitles the defendant to the protection of the statute,
but not when, on the given state of facts, the defendant was mistaken
in luw.^]

In Seymour v. Greenwood, 30 L. J. (Ex.) at p. 192; G II. &. N. at
p. 365, Martin, B., puts the criterion of the liability of the master to
be, not whether the master has given the authority to do the particular
act, but whether the servant does it in the ordinary course of his em-
ployment. So in Limi)us v. London General Omnibus Company, 32 L.
J. (Ex.) 34 ; 1 H. & C. 520, the act upon which the master was held
liable was in direct violation of his orders, but was in the course of
the servant's employment.

11. T. Cole, Q. C. {Phidcr with him), in support of the rule, cited
Roe V. Birkenhead, &c. Railway Company, 21 L. J. (Ex.) 9 ; 7 Ex.
36 ; and Cox v. Midland Railway Compan}-, 3 Ex. 2G8 ; 18 L. J.
(Ex.) 65.

[Prideaux, contra, called attention to Walker v. Great Western
Railway Company, Law Rep. 2 Ex. 228 ; and the court then
adjourned.]

June 29. Blackburn, J. I do not think we need trouble the
defendants' counsel any further. There being no doubt whatever that
the station master did give the plaintiff into custody and that that was
false imprisonment, the only question is whether there was evidence
that the station master was clothed with authority ; that his act in
detaining the plaintiff in custody was within the scope of his authority,
and was such as that the evidence before the jury would properly con-
vince them that he was authorized on the part of the company to do
the wrongful act, and consequently that the company were responsible.

There can be no question, since the decision of the case of Goff v.
Great Nortliern Railway Company, 30 L. J. (Q. B.) 148 ; 3 E. & E.
672, that where a railway company or any other body (for it does not
matter whether it is a railway company or not), have upon the spot a
person acting as their agent, that is evidence to go to the jury that
that person has authority from them to do all those things on their
behalf which are right and proper in the exigencies of their business,
— all such things, as somebody must make up his mind, on behalf of
the company, whether they should be done or not ; and the fact that
the company are absent, and the person is there to manage their
affairs is prima facie evidence that he was clothed with authority to do

1 See Roberts v. Orchard, 2 H. & C. 769 ; 33 L. J. (Ex.) 65. — Rep.

194 POULTON V. LONDON AND SOUTH-WESTERN RY. CO. [CHAP. IL

all that was right and proper ; and if he happens to make a mistake,
or commits au excess, while acting within the scope of his authority,
his employers are responsible for it.

In the present case the station master took the plaintiff into custod}',
because, as he erroneously supposed, the plaintiff had improperly
not paid the fare for a horse that had been carried on the defendants'
railway. Had the station master given him into custody under the
erroneous supposition that he had not paid his own fare for carrying
himself, as an individual, then, inasmuch as there is an authority by the
Act of Parliament to arrest and take into custody any person who
does not pay his fare, and, consequently, the act would have been an
act which the railwa}' company' were authorized to do, it might be
said that the station master, being the head man on the spot, had
authority to take into custody those who did not pay their fares ;
and, if he made a mistake, it was a mistake in doing a thing which the
railway company had given him authority to do, and then the rail-
wa}' compan}' would be responsible. But what the plaintiff was given
into custody for, was the not paying the mone}' for carrying the
horse. There was an attempt by the counsel for the plaintiff to argue
that that was part of " his fare," within the meaning of the Act of
Parliament ; but we think that is untenable. The Act of Parliament
enacts, in very careful words, that where a passenger does not pay his
fare, he may be taken into custod}', and that where goods are not
paid for, the}- may be detained. Where a person does not pay for a
horse, and he is himself a passenger in the train, it would be an abuse
of language to sa}' the money for the horse was part of " his fare."

Then comes the question we have to determine : can there be said
to be any evidence from which it may be inferred that the railway
oompau}' authorized the station master to do an act which it appears,
on every view of the facts, he would be utterl}' unauthorized to do?
We think not ; we do not think it is within the scope of his authority,
in what he was authorized to do, so to bind the company. It was an
act out of the scope of his authority, and for which the compan}' would
be no more responsible than if he had committed an assault, or done
any other act which the compan}' never authorized him to do.

There is little need to refer to the cases, they all have this same
distinction. In Goff v. Great Northern Railway Company, 30 L. J.
(Q. B.) 148 ; 3 E. & E. 672, the act was the arresting a man for the
benefit of the company, where there was authority to arrest a passenger
for travelling without paying his fare, and the court thought, and no doubt
righth', that the station master and the policemen who were employed
there must be assumed to be authorized to take people into custody
whom they believed to be committing the act, and if there was a mis-
take, it was a mistake made within the scope of their authorit}'.

In Seymour v. Greenwood, 30 L. J. (Ex.) at p. 828 ; 7 H, & N. at
p. 358 ; in the Exchequer Chamber, Sir E. V. Williams, in delivering
the judgment of the court, points out verj- distinctly that the conductor

SECT. II.J rOULTON V. LONDON AND SOUTII-VVESTEKN KY. CO. 195

was authorized to remove a disordei-l}- passenger ; that that was part of
his authority ; and when, in removing a passenger whom he thought to
be disorderlv, he used more violenee than was neeessary, he was doing
a tiling within tiie scope of liis authoiity.

In Limpus r. London General Oiimiijus Company, 32 L. J. (Ex.) 34 ;
1 II. & C. 52G, wliere the question was, whether or not the direction
of my Brother Martin to tlie jury was erroneous, there was a difference
of opinion. The late Mr. Justice Wightman thought it was ; that the
learned judge had gone too far to make tlie company liable ; the other
judges thought there was no misdirection, and that the act done
by the driver was within tlie scope of his authoritv, though, no doubt,
it was a wrongful and improper act, and therefore that his masters
were responsible for it.

In the present case an act was done by the station master com-
pletel}' out of the scope of his authorit}', which there can be no
possible ground for supposing the railway company authorized him
to do, and a thing which could never be right on the part of the
company- to do. Having no power themselves, they cannot give the
station master any power, to do the act. Therefore the wrongful
imprisonment is an act for which the plaintiff, if he has a remedy at all,
has it against the station master personally, but not against the railway
company.

Mellor, J. I am entirel}' of the same opinion. I think the distinc-
tion is clear ; it limits the scope of authority, to be implied from the
fact of being the station master, to such acts as the company could
do themselves, and I cannot think it ever can be implied that the
compan}- authorized the station master to do that which they have
no authority to do themselves ; and that seems to me to be the
boundary line. It was well put by the counsel for the plaintiff, and no
doubt there is a difficulty at first in seeing where the distinction begins
and where its ends ; but I cannot help thinking it is analogous to an
action against magistrates. If the station master had made a mistake
in committing an act wliich he was authorized to do, I think in that
case the company would be liable, becouse it would be supposed to be
done by their authority. Where the station master acts in a manner
in which the company themselves would not be authorized to act, and
under a mistake or misapprehension of what the law is, then I think
the rule is ver^y different; and I think that is the distinction on which
the whole matter turns. So if a magistrate acts within the scope of
his authoritv, however erroneously he judges of the facts, he is pro-
tected ; but the moment he assumes a jurisdiction over a matter which
does not belong to him, then an action lies. It is a kindred distinction,
and I only refer to it for the sake of illustration.

Shee, J. I am of the same opinion. As pointed out by my learned
Brothers, an authorit}' cannot be implied to have been given to a
servant to do an act, which, if his master were on the spot, the master
would not be justified in doing, on the assumption of a particular state

19G WHATMAN V. PEARSON. [cHAP. II.

of facts. It rs clear, from the construction of s. 103 of 8 Vict, c, 20,
that the company had no power to ai'rcst this passenger because he had
not paid the price for the carriage of his horse.

Jiule absolute.

WHATMAN V. PEARSON.

Common Pleas. 1868.

[L. R. 3 C. P. 422.]

Declaration for damage done to certain iron raiUngs of the plain-
tiff by the negligence of the defendant's servant in the management of
a horse and cart of the defendant.

Plea, not guilty, by statute 25 & 26 Vict. c. 102.

The cause was tried before Byles, J., at the last sittings at Guildhall.
The plaintiff was the owner of some houses at Deptford. The defend-
ant, a contractor, was employed under the district board of Greenwich
in carting away the soil excavated from a highway there during the
construction of a sewer, and for this purpose employed a number of
men with horses and carts. The duty of the men so engaged was, to
travel with their carts for a certain number of hours each day between
the place where the excavation was going on and the place of deposit
for the earth and rubbish, with an hour's interval for dinner, but never
to quit their horses or carts or to leave their work. One of the men,
contrar}' to his instructions, went home to dinner at a place about a
quarter of a mile out of the line of his work, and left his horse and
cart in the street before his house ; the horse had his bridle off and a
nose-bag on, and there was no one to look after him. Whilst the driver
was thus absent, the horse ran away, and damaged the plaintiff's rail-
ings. No notice of action was given.

The learned judge left it to the jur}' to say whether the driver had been
guilty of negligence, whether he was at the time acting within the scope
of his employment, and whether the injury complained of was a thing
done or intended to be done under the act (25 & 26 Vict. c. 102, s. 106),
under which tlie contractor's work was being done. The jury answered
the first two questions in the affirmative and the third in the negative.

The learned judge reserved leave to the defendant to move to enter
a nonsuit, on the ground that there was no evidence that the driver
was acting in the scope of his employment, or on the ground that the
defendant was entitled to notice of action under 25 & 26 Vict. c. 102,
s. 106.

Montagu Chambers, Q. C.. moved to enter a nonsuit, or for a new
trial on the ground of misdirection.

1 Compare Moore v. Metropolitan Ry. Co., L, R. 8 Q. B. 36 (1872). — Ed.

SECT. II.] WHATMAN V. PEARSON. 197

BoviLL, C. J. I am of opinion lliat there should be no rule upon
either ground. As to the lirst point, the jury found that the defend-
ant's servant was acting in the course of his enii)lo\ inent ; and 1 think
there was sufficient evidence to support that finding. In Joel v. Mori-
son, 6 C. & P. 501, 503, Parke, B., lays it down that "the master is
onl}- liable where the servant is acting in the course of his employ-
ment." But he adds: " If he was going out of his way against his
master's in)plied commands, when driving on his master's business, he
will make his master liable." In the present case, the servant had
charge of the horse and cart, and it was through his negligence and
want of care, whilst acting in the course of his employment, that the
accident occurred. The jury were quite at liberty to come to the con-
clusion they did ; and I cannot doubt its accurac}'. As to the notice of
action, — it is difficult to see how such a case can be brought within the
106th section. The intention was that there should be notice in all
cases where the act compluinod of was a thing done or intended to be
done under the powers of the board or vestry or under the act. The
cause of action here is not a thing done or intended to be done under
the act ; the whole thing was collateral. The defendant's servant was
not acting or intending to act in the performance of anv duts" cast upon
his master by virtue of the act. He was guilty of negligence in the
care of the horse entrusted to him, whilst he was absent taking his
meal. That clearly had no relation to an act done or intended to be
done under the Act of Parliament. Neither the act done nor the mis-
chief which resulted had anything to do with the performance of the
powers of the act. No notice of action, therefore, was necessary.

Byles, J. I am of the same opinion. The question of negligence
was left to the jury ; and they found that the defendant had been guilt}-
of negligence. I agree it is doubtful whether the second and third
questions ought not to have been decided by the judge; but for safety
sake I left them to the jury. When the defendant's servant left the
horse at his own door without any person in charge of it. he was
clearly acting within the general scope of his authority to conduct the
horse and cart during the day. On the second point, I am of opinion
that the thing complained of was not an act done or a default made
under the powers of the board, or under the act. If negligence in
looking after the horse was the cause of the injury, that clearly had
nothing to do with the powers of the board ; still less had the breaking
of the plaintiffs railings.

Keating, J. I am of the same opinion. Upon the first point Mr.
Chambers's contention in substance is, that there was such an amount
of deviation by the defendant's servant from the line of his duty, that
he ceased to be acting in the course of the employment of his master.
It is always, however, a question of degree. I think my brother Byles
was quite right in leaving the question to the jury. They found, and
properly, I think, that the man was at the time of the accident acting
in the course of his employment. As to the want of notice, — I see

198 TOLEDO, WABASH, ETC. KY. CO. V. HARMON. [CHAP. IL

no ground for saying that the defendant's servant was acting or intend-
ing to act in pursuance of the Act of Parliament when he was guilty of
the negligence complained of. Whether that be a question for the
jury or the court, I am equally of opinion that the verdict was right.

Montague Smith, J. I am of the same opinion. There was evi-
dence that the defendant's servant was acting within the scope of his
authority, and not upon his own account independently of his master ;
and that evidence was properly submitted to the jury. Upon the other
point, there was no evidence to satisfy the jury, or which ought in niy
judgment to satisfy us, that a notice of action was necessary. The
injury sustained by the plaintiff did not arise from any negligence in
the performance of anything done or intended to be done under the
powers of the act. It is not because a man may believe that he is
acting in pursuance of the act that a notice of action is necessary.
The negligence of the defendant's servant here was entirely collateral
to anything done or intended to be done under the powers conferred by
the act. It would be difficult to say where the necessity for a notice of
action would not arise, if it were held to be necessary here. If the
servant were taking the horse out of the shafts, and in so doing negli-
gently suffered it to run away and do damage, could it be said that that
was a case within the act? It seems to me that it would be an absurd
construction of the clause to hold a case like this to be within it.

Hule re/used.^

TOLEDO, WABASH & WESTERN RAILWAY CO.
V. HARMON.

Supreme Court of Illinois. 1868.

[47 ///. 298.]

Appeal from the Circuit Court of Morgan count}' ; the Hon.
Charles D. Hodges, Judge, presiding.

This action was in case, to recover for injuries received b}' Harmon,
by the running away of his team caused b}' an engineer of the road
letting off steam from his engine with a loud noise, just as Harmon was
crossing the track. The declaration contained two counts, each char-
ging the steam to have been let off wantonh' and maliciously, but one
stating that the locomotive was standing still, and the other, that, while
moving, the steam was let off. The counts differed, too, as to whether
the engineer blew the whistle or let off steam.

A demurrer to the declaration was interposed and overruled. De-
fendants then pleaded the general issue.

For the plaintiff, three instructions were given : —

1 Aec. : Ritchie v. Waller, 63 Conn. ) 55 (1893). — Ed.

SECT. II.] TOLEDO, WABASH, ETC. RY. CO. V. HARMON. 199

1st. The jury, if tbej find the defendants guilty, may assess the
damages from all the facts, and may include punitive damages, but not
to exceed $3000.

2d. If they find that defendants' engineer, with intent to frighten
plaintiff's horses, unnecessaril3' and wantonl}' let off steam or blew a
whistle, so that pluiutilfs horses ran off and injured him, defendants
are guiltj', unless [)hxintiff is also guilt}' of negligence.

3d. Malice in the engineer need not be proved positively, but may be
inferred.

For the defendants, nine instructions were asked, and all but the
second and fifth were given: —

1st. If the plaintiff's neglect co-operated to cause the injur\', defend-
ants are not liable.

2d. If the jury believe the act of the engineer to liave l)eeu wilful
and malicious, and that the act was not authorized 1)\' any special or
general command or permission, expressed or implied, of defendants,
defendants are not lial)le. (Refused.)

3d. Unless they believe the act to have been wilful and malicious, as
alleged, they must find for defendants.

4th. If the acts were usual and necessar\' at the time for the proper
running of the engine, they will find for tiie defendants.

5th. If the}' believe the injury to have been caused by the wilful and
malicious act of the agent of the defendants, they will find for the
defendants. (Refused.)

Gth. In the absence of evidence to the contrary, the presumption is
that defendants ordered their servant in charge of the engine to do
lawful acts in a lawful manner.

7th. That unless they believe that the engineer wilfully, by his
wilful and malicious act, so managed his engine as to frighten plaintiflT's
horses and cause said injury, they will find for defendants.

8th. Unless the jury believe the injury to have been caused by the
wilful and malicious act of defendants' servant, they will find for
defendants.

9th. If, upon the weight of evidence, the jury can conscientiously ex-
plain the occurrence upon the theory of accident, and without a wilful
and malicious purpose, they will find for defendants.

Verdict for plaintiff. Damage $500. Judgment in accordance
therewith.

Motion for new trial by defendants upon the following grounds : —

1st. The court admitted improper evidence to go to the jury.

2d. The court erred in giving the 1st, 2d and 3d instructions asked
by the plaintiff.

3d. The court erred in refusing to give the 2d and 5th instructions
asked by defendants.

4th. The verdict of the jury is contrary to the law and evidence of
the case.

M(Mion overruled and appeal taken.

200 TOLEDO, WABASH, ETC. RY. CO, V. HARMON. [CHAP- II

Messrs. Ixobertson & Harnes, for the appellant. Messrs. Ketcham
& Atki/is, ou the same side.

Messrs. JIurrlsoii & Epler, for the appellee.

Mr. Justice Walker delivered the opinion of the Court. The evi-
dence in this record is conflicting, and was properly left to the con-
sideration of the jur}'. In such cases this court will not disturb the
verdict, unless we can see that it is manifestly against its weight.
An attentive examination of the testimony fails to satisfy us that the
finding is unwarranted. On the contrary, we think it preponderates in
favor of the finding of the jury. If the agents and employees of a
railroad company, while in the discharge of their duty, act with such
negligence as to occasion injur}' to others who are not in fault, the
company must be held liable in damages for the wrong. The well-
being of society requires these bodies to employ careful and skilful
agents, and that the}- in the performance of their duties shall have due
regard to the safety and rights of other persons. They are held to a
high degree of caution and skill while exercising and enjoying their
franchises. Negligence, or want of skill b}' their agents, producing
injury, will create liability. And when they locate their stations and
depots in populous cities and on thoroughfares, they must, for the pro-
tection of community be held to a degree of care commensurate with
the greater danger such a situation involves. When located at such
places, they know the hazard that must ensue, and must be held to an
increased degree of care and diligence equal to the greater hazard.
The life and propert}' of individuals cannot be lightl}' or wantonly
placed in jeopard}-. If that might be done, then these great instruments
of prosperity, and agents in the development of the resources of the
country, and promoters of its commerce, instead of blessing, would
become a nuisance, if not a curse to our citizens. If the lives of men,
or their property, must be endangered in the pursuit of their ordinary
and legitimate business, while lawfully passing over our public high-
ways, and no person can be held responsible, then it would be an injury
instead of a blessing to community that they were constructed.^ . . .

It can make no difference in its results to appellee, whether the es-
cape of steam was the effect of negligence, or from wanton and wilful
purpose. The engine-driver does not pretend that there was any neces-
sity, nor can we imagine any, for the escape of steam at that time. He
had stopped his locomotive, and there could be no necessity to start it
until appellee had crossed the track, which could have required, at most,
not more than a very few seconds. There could have been no danger
of an explosion, nor is it "pretended there was. Then why the necessity
for the escape of steam, either through the whistle or the escape pipes?
It must have been the result of gross negligence under the circum-
stances, or of wanton and wilful purpose, in total disregard of the
eecurity of the life and property of appellee.

^ Several paragraphs not dealing with Agency are omitted. — Ed.

SECl. II.] TOLEDO, WABASH, P:TC. RY. CO. V. IlARxMON. 201

It is, however, contended that if ihe engine-driver did the act wan-
tonly or wilful]}', it was outside of his authority, and hence the company
are not liable for the damages resulting from the misconduct of the
engineer! lie was their servant, was engaged in the performance of
the duty assigned to him, and if, while so engaged, he used the engine
put into his possession and under his control, to accomplish the wanton
or wilful act complained of, why should not the company be held lia-
ble? It is said that he was not employed for the purpose, nor directed
to perform the act ; and it is equally true that they do not employ en-
gineers to inflict injuries through negligence or incompetency, and yet
these bodies are held liable for such acts of their servants.

In the case of tlie Chicago, Burlington «fe Quincj' R. R. Co. v. Parks, 18
111. 4G0, it was urged that the conductor, in ejecting Parks from the
train, did not onlv an unlawful, but an unautliorized act, and tlie cora-
pan}' were not liable for damages. The law prohibited liim from re-
moving or forcibly ejecting a passenger for refusing to pay his fare,
except at a usual stopping place, while he put him off b}' force at a
different place. In that case, the agent of the road did an act pro-
hibited by the statute and outside of his authority, and yet the com-
pany were held liable. In the case of the 111. Cent. R. R. Co. v. Reedy,
17 111. 582, it was said that while trespass might be maintained against
the agents of tlie company for their immediate acts, yet the corporation
who employed them would be liable in case for the damage inflicted by
their servants ; and if authority bv the company to perform the act were
to be made the test of liabilit}-, the}' would always escape, as the}' would
never authorize their agents to do an unlawful act, or to omit any duty,
or to carelessly or negligently perform others, whereby injury would
result to individuals.

This court held, in the case of the St. Louis, Alton & Chicago R. R.
Co. V. Dalby, 19 111. 353, that a railroad corporation is liable, in an
action of trespass, for an assault and battery committed by an em-
ployee of the company on a passenger on the train ; and this rule was
fully approved in the case of the 111. Cent. R. R. Co. v. Read, 37 111.
484. It was there said, in answer to the objection to the want of
authority in the agent to commit the act, or that the company had no
power to order a lawful act to be done in an improper mode, or so that
it will violate the rights of others, and therefore, such act must be re-
garded as that of the agent, and not of tlie company ; that such a rule
would release railway companies from liability from all affirmative acts
violating the rights of others ; that in all such cases the ready answer
would be, that because such act was wrongful, therefore it was unlaw-
ful, and not authorized by its charter, but the individual act of their
agents, who exercise its functions. That the result of the position
would be, that the company could not be liable for a trespass, because
no corporation can be empowered to commit a wrongful act.

There can be no pretence, that where an agent commits an act wil-
fully, or otherwise, while he is not engaged in the performance of his

202 ALDKICH V. BOSTON AND WORCESTER RAILROAD. [CHAP. II.

dut^- to the company, they would be liable for the wrong ; or even
while so engaged, if he were to personally perform an act not connected
with the business of the corporation, they would be liable. But when
employed in the discharge of his duty, or while engaged in bperating
their engines and machinery on their road, if he uses such agencies in
an unskilful manner, or so negligently as to occasion injury to another,
or even if, while so engaged, he wilfully perverts such agencies to the
purpose of wanton mischief and injury, the company should respond in
damages. They should not be permitted to sa^-, it is true he was an
agent, was authorized by us to have the possession of our engines, was
engaged in carrying on our business, and wiiile so engaged, he wilfully
perverted the instruments which we placed in his hands to something
more than we designed or authorized, and, therefore, we should not be
liable for the injur}' thus inflicted.

In this case, so far as the record discloses, the engineer was properly
engaged in the use of the machinery of the company, and it can make
no difference whether the escape of steam was negligently permitted,
or wilfuU}' done bj* the engineer, any more than if he had wilfully run
his engine against appellee's wagon and team, and thus produced the
injur}'. The question, whether it was negligently or intentionally done,
can, we think, make no difference in results. It then follows that the
instructions were not improper, and no error was committed by telling
the jury that the company were liable if the act was intentional on the
part of the engineer. The judgment of the court below is affirmed.

Judgment affirmed}

ALDRICH V. BOSTON and WORCESTER RAILROAD
COMPANY.

Supreme Judicial Court of Massachusetts. 1868.
[100 Mass. 31.]

Contract to charge the defendants as warehousemen with the value
of three barrels of kerosene oil and four barrels of glassware burned
between midnight and four o'clock in the morning of November 1, 1866,
in their freight house at Milford.

At the trial in the Superior Court, Rockwell, J., refused a request
of the defendants at the close of the evidence to direct a verdict in their
favor, and the jury found for the plaintiff for the value of the glassware,
but not of the oil. After this verdict, the judge, at the same time

1 Ace. : C, B. & Q. Railroad Co. v. Dickson, 63 111. 151 (1872). Compare Little
Miami Railroad Co. v. Wetmore, 19 Ohio St. 110 (1869). See Harrimaii v. Railway
Co., 45 id. 11, 36-38 (1887) ; and Railway v. Shields, 47 id. 387 (1890). — Ed

SECT. II.] ALDKICH V. BOSTON AND WORCESTER RAILROAD. 203

allowing a bill of exceptions taken by the defendants at the trial, re-
ported the case, by agreement of the parties, for the determination of
this court, judgment to be entered on the verdict if there was evidence
of negligence which should have been submitted to the jury, otherwise
the verdict to be set aside. The substance of the evidence is stated in
the opinion.

G. S. Hale <S) F. P. Gouldhuj, for the defendants.

II. B. Staples & T. G. Kent, for the plaintifif.

HoAK, J. The manner in which this case comes before us is irregu-
lar, and not autiiorized b}' statute. When the parties consent to the
report of a judge after verdict, it should contain a statement of all the
questions of law which it is proper to present ; and a bill of exceptions
cannot be sent with it. The losing party may have his bill of excep-
tions as a matter of right ; but if the case is reported, all the exceptions
allowed should be incorporated in the report. But as upon the report we
are all of opinion that the action cannot be maintained, there is no
need to examine the bill of exceptions ; and the parties lose no right b}'
disregarding it.

The action is brought to recover the value of goods destroyed h\ fire,
which were in the custodv of the tj«;fendants as warehousemen. The
goods were in their freigiit house at Milford, which was burned in the
night-time with its contents. The fire, for which it is agreed that the
defendants were not responsible, was caused b^- the burning of another
building in tlie neighborhood ; and the only ground of liability charged
at the trial was the negligence of their agents in not removing the goods
from the freight house at the time of the fire.

It appeared that different persons in the defendants' emplo3'ment
came upon the ground from time to time, and evidence was offered to
show that with due care and diligence they might have saved the plain-
tiff's property. There was no evidence that the general agent who had
charge of the freight house heard the alarm or was present at the fire ;
or that he was in any fault for not being there. The servants of the
coinpan}' who were present were, a clerk emploN'ed to check freight as
it was received, and to help deliver it ; a baggage-master and brake-
man ; a road-master and superintendent of the repairs of the track ;
another baggage-master, who had charge of the freight house in the
day-time, and locked it at night, but did not keep the ke}- ; and a clerk
employed to receive freight.

The legal obligation of the defendants as warehousemen is w^ell
settled 1)3' the authorities, and there is no substantial difference be-
tween the parties respecting its nature and extent. They are respon-
sible for due care in storing the goods in a place of reasonable safety-,
and are to be charged onh- upon proof of their own negligence, or that
of their servants in the course of their employment. The}' are not
insurers against loss by an accidental fire.

As the defendants furnished a suitable warehouse, properly secured,
in which the goods were deposited, they had done their whole duty, until

204 STOREY V. ASHTON. [CHAP. IL

the time came when, upon reasonable notice of danger, an obligation
should arise to remove them. Tobin r. Murison, 5 Moore, P. C. 110.
They were not chargeable with the negligence of any of their servants,
unless it was negligence within the scope of the servant's employment.
And a true test of this liabilitj' may be found in the question, Whether
auy one of the defendants' servants who were present at the fire would
be answerable to his euiployers for a neglect of his duty?

The answer to this question, upon the evid-ence reported, seems to us
perfectly plain. It was no part of the service for which either of them
was engaged, to attend to the removal of goods from the freight house
in case of a fire in the night. Neither of them was under any obliga-
tion, b}- reason of his employment, to rise in the night and be present
at the fire. Neither of them had an^' custod}', or responsibility for the
safet}', of the goods at that time. If they were under no obligation to
be present, their voluntary- attendance imposed upon them no legal
liability for mere omission to do anything when on the spot.

It is a mere confusion of terms to sa^- that the servants of the com-
pany were present and neglected to remove the goods. Thej" were not
then and there, in an}' legal sense, the servants of the company. What-
ever they did was done b}' them as volunteers, as neighbors and citi-
zens. They had the full control of their own time and labors. They had
the right to choose for themselves whom they would assist, and whose
goods they would trj' to save ; and, in making the choice, they in
no manner implicated the railroad compan}-, or assumed any of its
obligations.

As the clerks, brakeman, and baggage-master, and superintendent of
track repairs, were under no legal liability to the defendants for their
omissions at the fire, it follows, therefore, that the defendants are not
chargeable with their neglect, an}' more than with the neglect or ineffi-
cienc}' of any other persons who were there ; and the whole foundation
of the action fails. Hew trial granted.

STOREY V. ASHTON.

Queen's Bench. 1869.

\L. R.4 Q. B. 476.]

Declaration. That the defendant was possessed of a horse and
cart then being driven under the control of a servant of the defendant,
and, b}' the servant's negligence in driving, the horse and cart were
driven over the plaintiflf, who was crossing a certain highway, to wit,
the City Road.

Pleas : 1 . Not guilty.

2. That the horse and cart were not under the control of the defend-
ant's servant.

SECT. II.] STOREY V. ASHTON. 205

Issue joined.

At the trial before Hannen, J., at the sittings in Middlesex, during
Trinity Term, 1868, it appeared tliat the plaintiff, a child of six years
old, was on the 23rd of February, 1867, run over in the City Road
by a horse and cart of the defendant, driven by a servant of the
defendant.

The defendant was a wine merchant having offices in Vine Street,
Minories. On the day in question, which was a Saturday, the defend-
ant sent a clerk and a carman with a horse and cart to deliver wine at
Blackheath. They delivered the wine and received some empty bottles,
and it was then the dut}' of the carman to have driven back direct to
the defendant's offices, left the empties there, and taken the horse and
cart round to the stables in the neighborhood ; instead of doing this,
it being after business hours (3 p. m.) on Saturda}', the carman, after
he had crossed London Bridge, when about a quarter of a mile from
home, instead of turning at the statue in King William Street to the
east toward the Minories, at the persuasion of the clerk drove north-
ward to the clerk's house, near the City Road, and thence to fetch a
cask (which the clerk had sold to a cooper in the cit}'), from the house
of the clerk's brother-in-law at Barnsbur}* ; and it was while they were
driving along the City Road towards Barnsl)ury that the accident hap-
pened to the plaintift'.

There was contradictor}' evidence as to who was in fault ; but by
consent the only question left to the jur}- was the amount of damages ;
and a verdict was directed for the defendant, with leave to move to
enter it for the plaintiff for £80, the amount found by the jur}-, if the
Court should be of opinion, on the evidence, that the defendant was
liable for the negligence of his servant.

A rule having been obtained accordingly,

Prentice^ Q. C, and A. L. Smith, showed cause.

Digby Seymour, Q. C, and Finlay, in support of the rule.

CoCKBURN, C. J. I am of opinion that the rule must be discharged.
1 think the judgments of Maule and Cresswell, JJ., in Mitchell v. Crass-
weller, 13 C. B. 237; 22 L. J. (C. P.) 100, express the true view of
the law, and the view which we ought to abide by ; and that we cannot
adopt the view of Erskine, J., in Sleath v. Wilson, 9 C. & P. 607, 612,
that it is because the master has intrusted the servant with the control qf
the horse and cart that the master is responsible. The true rule is that
the master is only responsible so long as the servant can be said to be
doing the act, in the doing of which he is guilty of negligence, in the
course of his employment as servant. I am ver}- far from saying, if
the servant when going on his master's business took a somewhat longer
road, that owing to this deviation he would cease to be in the employ-
ment of the master, so as to divest the latter of all Uability ; in such
cases, it is a question of degree as to how far the deviation could be
considered a separate journey. Such a consideration is not applicable
to the present case, because here the carman started on an entirely new

206 MURRAY V. CUKRIE. [CHAP. IL

and independent journe}' which had nothing at all to do with his em-
ployment. It is true that in Mitchell i'. CrassweUer, 13 C. B. 237;
22 L. J. (C. F.) 100, the servant had got nearly if not quite home,
while, in the present ease, the carman was a quarter of a mile from
home ; but still he started on what may be considered a new journey
entircl}- for his own business, as distinct from that of his master ; and it
would be going a great deal too far to say that under such circum-
stances the master was liable.

Mellor, J. I am of the same opinion. Generally speaking, the
master is answerable for the negligent doing of what he employs his
servant to do ; and it is not, as Cresswell, J., says, because the servant
in executing his master's orders does so in a roundabout way, that the
master is to be exonerated from liability. But here, though the car-
man started on his master's business, and had delivered the wine and
collected the empty bottles, when he had got within a quarter of a
mile from the defendant's office, he proceeded in a directh' opposite
direction, and as soon as he started in that direction he was doing
nothing for his master ; on the contrary every step he drove was awaj'
from his duty.

Lush, J. I am of the same opinion. The question in all such cases
as the present is whether the servant was doing that which the master
employed him to do. If he was, the master is liable for the negligence
just as if he himself was guilty of it. Here the employment was to
deliver the wine, and carry the empty bottles home ; and if he had been
merely going a roundabout wa}' home, the master would have been
liable ; but he had started on an entirely new journe}' on his own or his
fellow-servant's account, and could not in any way be said to be carry-
ing out his master's employment.

Hannen, J., concurred. Hule discharged.

MURRAY V. CURRIE.
Common Pleas. 1870.

[L. R. 6 C. P. 24.]

The declaration stated that the defendant, by his servants and
workmen, being engaged in the unloading of a vessel in or near a
public dock in Liverpool, bj'^ his said servants and workmen so neg-
ligently and improperly conducted himself about the premises that by
means thereof certain machinery or cog-wheels were set in motion,
whereby the hand of the plaintiff, who was lawfully upon the ship, was
drawn in between the said cog-wheels and crushed and injured, &c.

Pleas, first, not guilt}' ; secondly, a denial that the defendant by

SECT. II.] MURRAY V. CURRIE. 207

his servants and workmen was engaged in unloading the ship. Issue
thereon.

The cause was tried before the assessor of the Passage Court, Liver-
pool, on the 20th of Jul}- last. The defendant, it appeared, was the
owner of the steam-ship Sutherland, which at the time of the accident
in question was alongside a quay in the Nelson Dock. For the i)urpose
of facilitating the loading and unloading of cargo the vessel was pro-
vided with a winch at each of her four hatchways, worked by a donkc}'-
engine. On the loth of January last, whilst the plaintiff, who was a
dock-laborer, was engaged together with one Davis, one of the Suther-
land's crew, in unloading the vessel by means of one of the winches,
his hand was, through the negligence of Davis, jammed between the
cog-wheel and pinion, and much injured. The work of unloading the
vessel was being done l)y one Kennedy, a mastei' stevedore ; and all
the men engaged in it were under his direction and control.

Kennedy, who was called for the defendant, stated that he supplied
the labor for the unloading and the working of the steam-engine ; that
Davis worked the winch, and was full}' competent; that the office
[i. e. the defendant] paid him, but deducted the sum paid from his
(Kennedy's) bills; that all the unloading was under his control and
that of his foreman ; that he would have had to get labor elsewhere, if
the sliip had not found men ; that the ship-owner selected those of the
crew who were employed in unloading, but he (Kennedy) selected the
work for them, and had control over it ; and that he could have refused
to employ Davis or an}- man whom he thouglit incompetent.

Tlie verdict was by consent entered for the plaintiff, damages £50,
with leave to the defendant to move to enter a verdict for him if the
court should be of opinion that the defendant was not under the circum-
stances liable for the negligence of Davis, — the court to be at liberty
to draw inferences of fact.

('. linssell obtained a rule nisi, citing Murph}' v. Caralli, 3 H. & C.
462: 34 L. J. (Ex). 14.

IlerscheH showed cause. Davis was the servant of the defendant,
and not of Kenned}', the stevedore, and the defendant was therefore
responsible for his negligence. The fact that Davis was at the time of
the accident acting under the direction of the stevedore makes no
difference.

[BoviLL, C. J. The question is, who was working the winch, — the
defendant or Kennedy?

Bkett, J. If Davis by his negligence had damaged part of the
cargo, would not Kennedy have been liable to the owner?]

It is submitted that he would not. The true test is, whose servant
was Davis, not under whose immediate orders he was working ; or, as
Crompton, J., says in Sadler v. Henlock, 4 E. & B. 570, 578 ; 24 L. J.
(Q. B.) 138, 141 ; cited in Warburton v. Great Western Railway Co.,
Law Rep. 2 Ex. 30 : " The test is, whether the defendant retained
the power of controlling the work."

208 MURRAY V. CURRIE. [CHAP. II.

rBRETT, J. How do you meet the case of Murphe}" v. Caraili cited
by Mr. Russell on moving?]

There the work was being done under the control and superintend-
ence of the warehousekeeper, and for his benefit ; the persons through
whose negligence the injury was caused were not in any sense acting
as the servants or in pursuance of orders of the defendant. The case
is so put by Bkamwell, B., in his judgment.

C. Russell, contra, was not called upon.

BoviLL, C. J. Mr. Herschell has put the case very clearly before
us ; but his argument has failed to carry conviction to my mind.
Kennedv, the stevedore, undertook to execute the work of unloading
the Sutherland, and for that purpose a steam-winch belonging to the
chip was placed at his disposal. The work of unloading was done b}'
Kennedy under a special contract. lie was acting on his own behalf,
and did not in any sense stand in the relation of servant to the
defendant. He had entire control over the work, and employed such
persons as he thought proper to act under him. He had the option of
using the services of the crew of the ship ; but he was under no obliga-
tion to do so. Whether he selected independent laborers or part of
the crew, they were all his servants, and their acts were his acts,
and not the acts of the owner. The owner did not exercise any control
over the work. All was left to the stevedore and those whom he
employed. The stevedore paid for the labor he engaged, making an
allowance to the owner of the vessel for the pa}' of those of the crew
who assisted in the work. Davis was employed in this way by the
stevedore, and was doing his work, and under his control and superin-
tendence. In no sense, therefore, can it be said that Davis was
working for or under the orders of the defendant, so as to make the
maxim " Respondeat superior" apply. The defendant did not stand
in the relation of superior. The rule must be made absolute to enter
a nonsuit.

WiLLES, J. I am of the same opinion. It is to be observed that
this is not a question arising between ship-owner and charterer. The
emplo3"ment of stevedores has grown out of the duty of the owner to
load and unload the ship. This duty used formerly to be executed by
the crew ; but, in dealing with large cargoes, the exigencies of modern
commerce have created a necessity for the employment of persons
skilled in the particular work of stowing cargo. The stevedores, how-
ever, are not the servants of the owner of the ship ; but they are persons
having a special employment, with entire control over the men era-
ployed in the work of loading and unloading. They are altogether
independent of the master or owner. In one sense, indeed, the>' may
be said to be agents of the owner ; but the}- are not in an\- sense his
servants. The}- are not put in his place to do an act which he intended
to do for himself. I apprehend it to be a clear rule, in ascertaining
who is liable for the act of a wrong-doer, that 3'ou must look to the
wrong-doer himself or to the first person in the ascending line who is

SECT. II.] MURRAY V. CUKRIE. 209

the employer and has control over the work. You cannot go further
back, and make tlie employer of that person liable. Tlie question
here is, whether Davis, who caused the accident, was employed at the
time in doing Kennedy's work or the ship-owner's. It is possible that
he might have been the servant of both ; but the facts here seem to me
to negative that. The rule, out of which this case forms an exception,
that a servant or workman has no remedy against his employer for an
Injury sustained in his emplo}" through tlie negligence of a fellow-
servant or workman, is subordinate to another rule, and does not come
into operation until a preliminary condition is fulfilled ; it must be
shown that, if the injur}- had been done to a stranger, he would have
had a remed}' against the person who employed the wrong-doer. Here,
I apprehend, the defendant would not have been liable to the charterer
if the wrongful act of Davis had caused damage to any part of the
cargo ; and for this simple reason, that the person doing the work
in the performance of which the damage was done was not doing it as
his servant. He was acting altogether independent of his control.
The defendant could not have taken him away from the work. It was
Kennedy's work that he was eraplo^'ed upon, and under Kenned^-'s
control. The liability of a master for the acts of his servant extends
only to such acts of tlie servant as are done by him in the course of the
master's service. The master is not liable for acts done by the servant
out of the scope of his duty, even though the master ma}' have entered
into a bargain that his servant should be emplo^'ed b}- another, and is
paid for such service, as was done here. It seems to me to be quite
plain that the defendant incurred no liabilitv for the act of Davis.

Montague Smith, J. I am of the same opinion. Applying all the
usual tests, the defendant was not the master of Davis in doing the
work in the course of which the injuiT w'as received b^* the plaintiff.
He was not the immediate principal of Davis, but Kenned}', who was
an independent contractor as stevedore to unload the vessel, was.
In order to perform his contract, it was necessary for Kennedy to
emplo}' a number of laborers. He selected them. Some of them were
persons unconnected with the ship. Others were part of the crew of
the vessel, emploj-ed at the request or upon the recommendation of the
defendant or the master. But, though he employed them upon that
recommendation, it was competent to Kenned}' to reject their services.
It follows, therefore, not only that Kenned}' was the immediate prin-
cipal for whom the work was done, but also that he was the employer
of Davis, and the entire controller of the labor of those whom he em-
ployed. An ambiguity was sought to be raised from the circumstance
of Davis being one of the crew ; but he was employed under an arrange-
ment by which his wages for the time were to be ultimately paid by
Kennedy. I entirely agree with the rest of the court that Davis was
the servant of Kennedy and not of the defendant, and was subject
only to Kennedy's orders, and consequently that the defendant is not
liable.

210 LAWRENCE V. SHIPMAN. [CHAP. II.

Brett, J. The ordinary contract and liability of a stevedore is
well established ; and the only question here is whether there was any-
thing in the evidence to take the case out of the ordinary rule. The
only circumstance relied on for that purpose is that the defendant
placed the services of Davis at the disposal of the stevedore. But I
apprehend it to be a true principle of law that, if I lend ray servant to
a contractor, who is to have the sole control and superintendence of the
work contracted for, the independent contractor is alone liable for any
wrongful act done by the servant while so employed. The servant is
doing, not my work, but the work of the independent contractor.

Mule absolute.

LAWRENCE v. SHIPMAN.
LUX V. SHIPMAN.

Superior Court op Hartford County, Connecticut. 1873.

[39 Conn. 586.]

The following opinion was given by Hon. O, S. Seymour, Judge of
the Supreme Court, in two cases in the Superior Court in Hartford
County, submitted to him as an arbitrator, under a rule of court, by
William T. Lawrence, plaintiff in the one, and Peter Lux, plaintiff in
the other, and Nathaniel Shipraan and George M. Bartholomew, defend-
ants in both cases, the defendants being trustees. The questions of
law considered and decided make the opinion one of interest to the
profession and the public. The facts are sufficiently stated b}' the
judge.

H. S. Barbour and Merrill^ for the plaintiffs.

Robinson for the defendants.

JUDGE Seymour's opinion.

These two cases have been submitted to me as arbitrator under a
rule of court. The two are substantially alike. The plaintiffs were
respectively tenants of the defendants, occupying a brick building
called the Russ Place, which the defendants owned as trustees in fee,
situate on the west side of Main street, in the cit}' of Hartford. The
plaintiffs aver that while thej- were thus occupying the tenement on the
13th day of July, 1869, and for several days next previous thereto,
the defendants carelessly and negligently' excavated and removed, and
caused to be excavated and removed, the earth and foundation from
under the south wall of said tenement, and did thereb}' remove the
necessary support of said wall, and on said daj' had negligentl}' and
carelessl}' made and caused to be made the excavation and removal
aforesaid, without providing other necessar}' support of said wall, and
had negligently omitted to shore up said wall as aforesaid, although

SECT. II.] LAWRENCE V. SIIIl'MAN. 211

wanietl b}- the plaintiffs of the danger, whereby the wall sank aiul fell
and the whole building was demolished, and the plaintiffs' goods of
great value were destroyed,

There is no serious eonlliet of testiraon}*. Indeed most of the facts
are agreed to. The relation of the parties to each other is as stated in
the writ. One Duffy owned the premises south of and adjoining those
of the defendants, and he had pulled down a tenement on his lot in
order to rebuild. Neither building had a cellar. Duffy had n)ade con-
siderable progress in digging a cellar on bis lot, when he had a
comnuinication with the defendants proposing that they should join
him in building a party wall of stone under the south wall of the
defendants' tenement. Duffy's proposition was favorably entertained,
and resulted in a verbal contract with a builder and mason by trade, to
remove the earth from under the south wall of the defendants' tenement
and underpin it with stone. He was to furnish everything needed for
the job. The stone structure was to be laid eight feet below the side-
walk, and was to extend the depth of the defendants' building, and
was to be two and a half feet in thickness, nine inches being on Duffy's
land and one foot nine inches on the defendants' land. The price agreed
on was $500, one half to be paid by Mr. Duff}' and one half b}- the
defendants. The defendants and Duffy were the contracting parties on
one side and the mason on the other. The defendants did not have,
nor were they by the terms of the contract to have, anj' oversight or
direction of the job. The}' relied on the skill and experience of the
mason to do the work properly, carefully, and according to his contract.

The contractor commenced his work about the 12th of July, under-
mining at first about nine feet of the defendants' wall and immediately
began tilling up the gap with stone. On the 13th he continued his
stone work, but unfortunately and unadvisedly he undermined the wall
at another place before the first gap was filled and thus weakened the
foundation, so that at about half-past three o'clock in the afternoon of
the 13th of July, the whole building tumbled into a mass of shapeless
ruins. The occupants bare!}' escaped with their lives, saving none of
their property.

The principal question of law raised in the case arises out of the fore-
going facts. Some other facts, however, appeared in evidence which
will be hereafter noticed, as bearing upon the question of the defend-
ants' liability. The first question suggested is, whether this negligence
of the mason can in law be imputed to the defendants. If he was their
servant his carelessness is in law theirs. If, on the other hand, he was
mereh' a contractor, acting as such in an independent business, the}-
are not under the general rule of law liable, though the}- ma}' even then
under certain circumstances be held responsible. Whatever obscurity
may heretofore have rested upon the distinction between servant and
contractor, it is now established law that such a distinction exists, and
the elements which distinguish the one from the other by the modern
decisions have been determined with considerable approach to exact-

212 LAWRENCE V. SHIPMAN. [CHAP. II.

ness and accurac\", though it must be admitted that in some uistances
the distinction is nice and difficult. In this case it is to be noticed :

1. That the mason was employed in a single transaction at a specified
price for the job.

2. By the terms of the contract he was to accomplish a certain
specified result, the choice of means and methods and details being
left wholly to him.

3. The employment was of a mechanic in his regular business, recog-
nized as a distinct trade, requiring skill and experience, and to which
apprenticeslups are served.

4. The contractor's duty was to conform himself to the terms of the
contract, and he was not subject to the immediate direction and control
of his employers.

These circumstances bj' all the authorities indicate a contractor in
contradistinction from a mere servant, and the defendants cannot in
mj' judgment be subjected for the negligence of the contractor, upon
the basis of the relation of master and servant. But it was suggested
in the argument that as the contractor was at work on the defendants'
propert}^, by their procurement and for their benefit, and being selected
by them, natural justice requires that they should bear the consequences
of his negligence rather than the plaintiffs, who are innocent sufferers,
having had no agency whatever in the transaction which caused the
loss.

These suggestions are not without a show of reason, and their force
is fully admitted in the law as applicable to a certain class of cases.

1. If a contractor faithfully performs his contract, and a third person
is injured by the contractor, in the course of its due performance, or by
its result, the employer is liable, for he causes the precise act to be done
which occasions the injury ; but for negligences of the contractor, not
done under the contract but in violation of it, the employer is in general
not liable. It is not claimed here that the injury to the plaintiffs arose
from the due performance of the contract. On the contraiy, it resulted
from the breach of the contract, by the contractor not doing his work
with suitable care.

2. If I emplo}' a contractor to do a job of work for me which in the
progress of its execution obviously exposes others to unusual peril, I
ought, I think, to be responsible upon the same principle as in the last
case, for I cause acts to be done which naturally expose others to injury.
The case now before me could not, however, I think, come under this
head. The peril, whatever it was, was mainly to the defendants' own
tenement, and cannot be treated, notwithstanding the unfortunate event,
as one at all imminent to the plaintiffs.

3. If I employ as a contractor a person incompetent and untrust-
worthy, I may be liable for injuries done to third persons by his care-
lessness in the execution of his contract. This, too, has no application
to the case before me. But the plaintiffs claim that the same principle
is ap[)licable to the employment of a person pecuniarily irresponsible,

SECT. II.] LAWKENCE V. SHIPMAN. 213

and evidence was received, subject to objection, that the contractor was
destitute of propert}' ; and I am called upon to decide the efTect of this
fact. I am not prepared to say that this fact may not be of some weight
where the work to be done is hazardous to others. If a person having
an interest in a job which naturally exposes others to peril, should
attempt to shield himself from responsibility by contracting with a
bankrupt mechanic, I think the employers might be subjected for dam-
ages done b}' the contractor, but, as before stated, the work to be done
by the contractor involved no peril in its usual performance, and I
cannot hold the defendants liable under this claim.

4. The employers may be guilty of personal neglect, connecting itself
with the negligence of the contractor in such manner as to render both
liable. I find no precedents to guide me under this head, but the prin-
ciples of the law lead inevitably to this conclusion.

[Here follows an examination of the evidence on this point, which is
omitted by the reporter; the conclusion of the judge being that the
defendants had not been guilt}' of any personal negligence.]

I therefore award that the defendants are not guilt}' in manner and
form as alleged.

There are other cases than those mentioned in which the employer is
liable for the negligence of his contractor, but they have no special
application to the matter before me. I will barely allude to them. It
has always been understood that if the negligence creates a nuisance
the employer is liable, though in a late English case this seems to be
somewhat doubted. Overton r. Freeman, 11 C. B. 867. So if the
contract is to do an unlawful thing, the employer as well as the con-
tractor is liable for the damage done in the execution of the contract.
There was formerly a doubt whether the owner of real propert}' could
be protected from liabilit}' caused b}- work upon it by a contractor, but
it is now settled that real and personal property- stand upon the same
footing in this respect.

These cases are submitted to me as an arbitrator, with full power, as
I understand, upon questions of law and fact. The plaintiffs are inno-
cent sufferers to a large amount b}' the fall of this building. The suits
have been very fairh' conducted with a view to a full investigation of
the facts and the law applicable to the facts. There are circumstances
connected with the case which I think justifj' me in making the matter
so far a mere matter of arbitration as to award that no costs be taxed
against the plaintiffs, and that the arbitrator's fees be paid half b}' the
plaintiffs and half by the defendants.

O. S. Setmour. *

* On the distinction between servants and independent contractors, and on the
responsibility for the acts and omissions of the latter, see further : Blake v. Ferris,
5 N. Y. 48 (1851) Hilliard v. Richardson, 3 Gray, 349 (1855) ; Boswell v. Ladd, 8 Cal.
469 (1857); Storrs i-. City of Utica, 17 N. Y 104 (1858); Hole v. Sittingbourue &
Sheerness Ry. Co., 6 H. & N. 488 (1861); Pickard v. Smith, 10 C. B. n. s. 470
(1861); McCafferty v. Spuyten Duyvil & Port Morris Railroad Co., 61 N. Y. 178

214 BURNS V. POULSOM. [CHAP. IL

BURNS V. POULSOM.
Common Pleas. 1873.

[L. R. 8 C. P. 563.]

Action against the defendant for an injuiy to the plaintiff tlirougli
the negligence of the defendant's servant.^

Gully showed cause. Malone, in throwing the iron out of the cart,
was not acting within the scope of his employment. His duly com-
menced only when the iron rails had been placed on the ground ; and,
in anything done by him beyond taking them from the ground to the
ship, and there stowing them, he was a mere volunteer. A master is
not responsible for acts done by his servant which do not fall within
the ordinary scope of his authority. It is only for the negligent exer-
cise by the servant of his dut}' to his master that the latter is liable.

[Grove, J. Where the act is closely connected with the employ-
ment, must it not be a question for the jury? Can we say that this
act of Malone was so wholly unconnected with the scope of his employ-
ment that it could not have been his duty to help the carter to unload
the iron?]

Tlie only question of fact for the jury was whether or not Malone
had been guilty of culpable negligence.

[Denman, J., referred to AVhatman v. Pearson, Law Rep. 3 C. P.
422, and Storey v. Ashton, Law Rep. 4 Q. B. 476.]

[The following cases were cited, — Limpus v. London General Omni-
bus Co., 1 H. & C. 526 ; 32 L. J. (Ex.) 34 ; Seymour u Greenwood, 7
H. & N. 355 ; 30 L. J. (Ex.) 189 ; and Page v. Defries, 7 B. «& S. 137.]

Crompton, in support of the rule. The plaintiff is entitled to a ver-
dict, if there was any evidence which could properly have been sub-
mitted to the jury that Malone was acting within the scope of his
employment ; and that question ought to have been left to them.
[The following cases were cited, — Poulton v. London and South Wes-
tern Railway Co., Law Rep. 2 Q. B. 534; Barwick v. English Joint
Stock Bank,"^ Law Rep. 3 Ex. 259 ; The Thetis, Law Rep. 2 A. & E.
365 ; Bay ley v. Manchester, Sheffield, and Lincolnshire Railway Co.,
Law Rep^ 7 C. P. 415 ; in error. Law Rep. 8 C. P. 148.]

[Denman, J. Is it not a question of fact whether this was anything
more than a slight deviation from the strict line of Malone's duty? I
think it was held by the Court of Queen's Bench in a recent case of
Woolley V. Curling, not reported, that the question whether or not an
act was within the scope of the servant's authoritj' ought to be sub-
mitted to the juiy.] Cur. adv. vidt.

(1874) ; Tarry v. Ashton, 1 Q. B. D. 314 (1876) ; Hughes v. Percival, 8 App. Cas. 443
(1883); Circleville v. Neuding, 41 Ohio St. 465 (1885); Hexanier v. Wehb, 101
N. Y. 377 (1886) ; Norwalk Gaslight Co. v. Borough of Norwalk, 63 Coun. 495, 528-
529 (1893). — Ed.

1 The reporter's statement is omitted. — Ed.

SECT. II.] BUKNS V. I'OULSOM. 215

Tlie judges differing iu opinion, the following judgments were
delivered : —

Denman, J. In tliis case which was tried before the judge of the
Passage Court at Liverpool, who nonsuited the plaintiff, a rule was
obtained to set aside that nonsuit, and to enter a verdict for the plain-
tiff for £30 damages, if this court sliould tliinlc fit.

It was assumed, upon the argument of the rule, b}' the counsel on
both sides, and I tliink we are also bound to assume, that this reserva-
tion means tliat the plaintiff is to be entitled to the verdict for £30 if
this court should be of opinion that there was evidence upon which
the jury might not unreasonably have found for the plaintiif. I am of
opinion that lliere was such evidence.

Tlie material facts proved at the trial were as follows : The de-
fendant was a stevedore who was employed to ship some iron rails
which were to go by a ship h ing in the Iluskisson Dock at Liverpool.
He had a foreman named ISLiloiio, who on the day in question was act-
ing for him at the dock. Tlie iron rails were being unloaded from a
cart which belonged to one Wood, and was standing at a small distance
from the ship on board of which the rails were in course of being
loaded. The carter, in unloading the rails, was putting them down on
one side of the cart, when Malone, — for what purpose is not stated,
but, 1 think it may be inferred, in order to assist his own operations
in some way, — told him to put them on the other side, and, upon his
refusal, got Into the cart and threw out some rails, one of which injured
the plaintiif, a passer-by.

The only evidence in relation to Poulsom's or Malone's duty in
respect of the iron rails in question was as follows : Tlie second wit-
ness, a warehouseman in the service of the plaintiff's emplo3"ers, on his
cross-examination, said: ''Poulsom is a stevedore. lie receives the
iron rails after they are thrown out of the cart on to the ground, and
takes them to the ship." The carter on his cross-examination said:
*' It is our dutj' to put the rails down out of the cart on the ground ;
and then the stevedore takes them to the ship."

It was contended for the defendant that, upon these facts, there was
no evidence upon which a jury could have found a verdict for the plain-
tiff ; and upon this ground the learned judge nonsuited the plaintiff.

The contention before us on the part of the defendant was, that,
inasmuch as the duty of the stevedore did not commence, in relation
to any particular portion of the rails in question, until they were on
the ground, it was impossible to hold the defendant liable for the act of
Malone in throwing the rail in question from the cart ; that that act
could not be within the scope of his employment or duty, being an act
done at a period antecedent to that at which his duty in relation to the
iron commenced, and at a place where he had no business to be med-
dling with it at all.

In m}' opinion, this contention of the defendant proceeds upon too
narrow a view of the duty or employment of Malone ; and I think that

216 BUENS V. POULSOM. [CHAP. II.

tlie cases applicable to the subject establish tliat, even though in the
ordinary course of his employment, it would not be a part of Malone's
duty to assist in moving the rails from the cart, it was still a question
for the jur}', and not for the judge, whether in this particular case he
was acting within the scope of his employment.

It cannot, 1 think, be contended in this case that the judge or jury
were bound to hold that Malone was acting for any purpose of his own,
as distinguished from his master's service, as was the case in Storey v.
Ashton, Law Rep. 4 Q. B. 47G, where the carman through whose neg-
ligence the plaintiff was injured had been induced by a clerk of the
defendant's to drive him in a wrong direction, after business hours, on
business of the clerk's ; nor, as it appears to me, if it was a question
for the jur}', would it be unreasonable for them to have found that he
was acting witlun the scope of his employment, inasmuch as they might
not unreasonably have thought that the act was one done for his mas-
ter's benefit, and with a zealous desire to expedite the work, and, for
aught I know, in a manner proper and even usual under the circum-
stances for a person emploj-ed as Malone was at the time.

In Joel V. Morison, 6 C. & P. 501, which, though a nisi prius case,
is cited with approval in many other cases decided by the courts, —
Parke, B., says: "The master is onl}' liable where the servant is act-
ing in tlie course of his employment : " but he immediately adds : " If
he was going out of his way, against his master's implied commands,
when driving on his master's business, he will make his master liable."
And earlier in the same summing-up the learned Baron says : " If the
servant, being on his master's business, took a detour to call upon a
friend, the master will be responsible." And this view of the law is
entirely in accordance with the judgments in Whatman v. Pearson,
Law Kep. 3 C. P. 422, cited for the plaintiff, which indeed is a stronger
case, inasmuch as there the servant acted in violation of his instructions.
No doubt, cases ma^' be put in which a servant may so conduct himself,
about goods of his master with which he is dealing as servant, as to
make it clear that the master is not responsible for his negligence in
the course of such conduct. Storey v. Ashton, Law Rep. 4 Q. B. 476,
mentioned above, and Mitchell v. Crassweller, 13 C. B. 237 ; 22 L. J.
(C. P.) 100, were such cases. But can it be said that, in the present
case, it would have been unreasonable for a jury to find that the act of
the foreman in getting into the cart and throwing the iron down was
an act bona fide and not unreasonably done in the zealous dis-
charge of his duty to his master, in the course of the business he was
employed upon ? And, if they were of that opinion, might they not
also properh' find that he was acting within the scope of his employ-
ment? I think the}' might, and therefore that this nonsuit was wrong,
and that, by vii'tue of the understanding at the trial, the rule should be
made absolute to enter the verdict for £30.

My Brother Grove agrees with me that in this case there was evi'
dence for the jury, and that the nonsuit was therefore wrong.

SECT. II. J BURNS V. POULSOM. 217

Bkett, J.* The question was stated in argument on both sides to
be, whether there was evidence that Malone was acting within the
scope of his authority. If there was, it was admitted bj- the defend-
ant's counsel that the judgment should be for the plaintiff. If there
was not, it was admitted by the plaintiff's counsel tliat the judgment
should be for the defendant.

The arguments raise the question, what is the proper application in
point of law in this case of the phrase or doctrine "that the servant
must be acting within the scope of his authoritj." Some cases have
raised the question whether the servant in what he did was intending
to act for his master or for purposes of his own. That does not seem
to me to be the point in this case. Malone ma}- be considered to have
been intending to act in performance of the dut\- delegated to him. In
this case the question is whether the time had arrived or the circum-
stances had arisen for doing anything which the servant was employed
to do. Had his employment commenced? ''The question," says
Lush, J,, in Storey v. Ashton, Law Rep. 4 Q. B. at p. 480, " in all
such cases is, whether the servant was doing that which the master
emplo^-ed him to do." " Where the servant, instead of doing that
which he is employed to do, does something which he is not employed
to do at all, the master cannot be said to do it by his servant : " per
Maule, J., in Mitchell v. Crassweller, 13 C. B. 237, 247 ; 12 L. J.
(C. P.) 100. " It is not sufficient that the act should be done with
intent to benefit or intent to serve the master. It must be something
done in doing what the master has employed the servant to do : " per
Blackburn, J., in Limpus v. London General Omnibus Co., 1 H. & C.
526 ; 32 L. J. (Ex.) 34. In Whatman v. Pearson, Law Rep. 3 C. P.
422, the servant was held to be acting in the course of his employ-
ment, because he was emploved to manage the horse and cart during
the day : per Byles, J.. Law Rep. 3 C. P. at p. 425.

Now, in the present case, Brocksop, who was the warehouseman of
Davis & Co., the shippers of the iron rails, stated that the defendant's
employment was to receive the rails after they were thrown out of the
cart on to the ground, and take them to the ship. It was, therefore,
obviousl}' the business of Davis & Co., by their own servants or some
other agent of theirs, to carrj' the rails to the quay and place them on
it, i. e., on to the ground there, for the defendant to carry them thence
into the ship and there stow them. And it is obvious that Davis &
Co. employed Wood, a master carter, to carr}' the rails to the quay and
deliver them there. Strongfellow, who was Wood's carter, stated, "It
is our dut}' to put the rails down out of the cart on the ground, and
then the stevedore takes them to the ship." The joint employers of
Wood and the defendant, therefore, limit the commencement of the
defendant's employment to a time after the rails were on the ground.
And the person employed on the previous and antecedent operation,

1 After statintr the case. — Ed.

218 ROUNDS V. DELAWARE, ETC. RAILROAD CO. [CHAP. IL

viz., that of cnrning the rails fi-om tlie wareliouse and tlelivoring them
out of tlie cart on to tlie quay, equally limits the conimencenient of the
defendant's employment to the time after the rails are on the ground.

Now, what the defendant was employed to do, what he might accord-
ing to that employment have done himself, he employed Mtilone to do.
He employed Malone to carry the iron rails, after they were on the
ground at the quay, thence into the ship, and there stow them. For
anything done by Malone in canying or stowing the rails, or anything
done by Malone with the rails after they were on the ground, with
intent to carr}' out his orders to take them into the ship and stow tliem
there, the defendant would have been liable. But it seems to me that
the defendant had not employed Malone to do anything with regard to
the rails before they were on the ground. The defendant himself was
not employed to do anything with the rails before they were on the
ground. Anything voluntarily done by Malone, therefore, before the
rails were on the ground, though done wath intent to serve the defend-
ant, was not a thing done which the defendant had employed Malone
to do. The evidence which described and limited the employment of
the defendant and of Malone was given on behalf of the plaintiff, and
there was no evidence to vary or render doubtful the limitation of the
commencement of that employment. There was no question which the
jury would have been entitled to entertain about it. The judge was, in
my opinion, bound to sa}' that what was done b}' Malone was done
before his employment by the defendant was called into pla^', that is to
sa}-, it was a thing which the defendant had not emploj'ed Malone
to do.

I am of opinion, therefore, that the learned judge was right in non-
suiting the plaintiff, and that this rule ought to be discharged.

The majority of the court, however, being of a different opinion, the
rule will be made absolute to set aside the nonsuit and enter a verdict
for the plaintifT for £30, the damages agreed upon at the trial.

Mule absolute.

BOUNDS, BY Guardian, Respondent, v. THE DELAWARE,
LACKAWANNA, AND WESTERN RAILROAD COMPANY,

Appellant.

Court of Appeals of New York. 1876
[64 N. Y. 129.]

Appeal from judgment of the General Term of the Supreme Court in
the third judicial department, in favor of plaintiff, entered upon an
order denying a motion for a new trial and directing judgment on a
verdict. ^Reported below, 3 Hun, 329 ; 5 T. & C. 475.)

This action was brought to recover damages for injuries sustained by

SECT. II.] ROUNDS V. DKLAWARE, ETC. RAILROAD CO. 219

plaintiff in consequence of being kicJied off of one of defendant's l)ag-
gage cars by the baggagouian.

The transaction resulting in the injury occurred at Norwich, May 3,
1872. The defendant operated a broad-gauge railroad from Bing-
hamton to Norwich, and a narrow-gauge road from Norwich to Utica.
The passenger train from Binghamton on this occasion as usual ran
to the depot at Norwich and transferred the passengers and freight
to the Utica train and then backed south on a switch, a distance of
about sixty rods, to the round-house, to make up the new train which
was to run back to Binghamton. The train consisted of the engine, an
express car, a baggage and smoking car, one car divided into two com*
partments, and one passenger car. The conductor of the train got off
with the passengers at the depot and left it in charge of the baggage-
man to run back on the switch and make up the new train. While the
train was unloading and transferring the passengers at the depot the
plaintiff, a bo}' twelve years old, living near the depot, got on the plat-
form of the baggage and smoking car, at the rear end, to ride down to
the round-house. A quantity of wood was piled at one point along
near the west side of the track for a distance of over 100 feet. While
the train was backing down the track, and when it arrived at the wood
pile, the baggageman in charge of the train discovered the plaintiff on
the platform and ordered him off. According to the plaintiff's testi-
mony, he replied: '' I can't, the wood is right here; I want you to
help me ; " and thereupon the baggageman kicked him off. He fell
against the wood and rolled under the car, the wheel of which passed
over and crushed his leg. A printed notice was posted up in the bag-
gage car and another one near where the plaintiff was standing on the
platform, as follows : " No person will be allowed to ride on this bag-
gage car except the regular train men employed thereon. Conductor
and baggageman must see this order strictly enforced.'' Another
printed notice was contained in the posted time cards as follows :
" Train baggagemen must not permit an}- person to ride in the bag-
gage car, except the conductor and news agent connected with the
train. Conductor and baggageman will be held alike accountable for a
rigid enforcement of this rule."

At the close of the plaintiff's evidence the defendant's counsel moved
for a nonsuit on the grounds: 1. The plaintiff was a trespas.ser, or
wrongfully on tlie cars of the defendant, and is not entitled to recover.

2. The plaintiff, b}' his own negligence, contributed to the accident.

3. Upon the evidence the defendant was not guilt}' of any negligence
or wrongful act in reference to the plaintiff; that the acts of Gow (bag-
gageman), which caused the injur}-, were not authorized by the defend-
ant, but were a wilful and wanton assault by Gow upon the plaintiff,
and for these acts and their consequences the defendant is not respon-
sible to the plaintiff. The court denied the motion and ruled that it
was a question for the jury whether the baggageman was there acting
within the authority of the company in putting the boy off, and whether

220 ROUNDS V. DELAWARE, ETC. KAILROAD CO. [CHAP. II.

he acted wilfully and wrongfully ; to which the defendant excepted.
After the defendant had given evidence contradicting the plaintiff's
testimony, and at the close of the case, the defendant's counsel renewed
his motion for a nonsuit on the same grounds, and also on the ground
that no right of action is made against the defendant, and that the evL
dence does not warrant a submission of any question of fact to the jury
which could authorize a recovery. The motion was denied and the de-
fendant excepted. The court then submitted the following questions to
the jury, to which the defendant also excepted: 1. Did Gow put the
boy off the cars ? 2. Was he acting within the authority given him by
the defendant? 3. Was lie acting maliciously and in excess of his
authority ?

The court then charged the jury, among other things, that the plain-
tiff was a trespasser on the car, but if the baggageman, nevertheless, in
the discliarge of his dut}^ pushed him off the train in an improper man-
ner, and at a dangerous place, tlie defendant was liable ; to which the
defendant excepted. The coiu't also charged the jur}- that if the bag-
gageman pushed the bo}' off the train, and in doing so was acting as
the employee of the defendant in good faith in the discharge of a duty
he owed the compan}', the defendant would be liable for the careless
and negligent discharge of his duty ; but if he was acting wilfully and
maliciously toward the plaintiff, outside of and in excess of his dut}',
then the baggageman alone would be responsible in law for the conse-
quences ; to which the defendant excepted and requested the court to
modify the charge or to charge that defendant was not liable if the bag-
gageman acted wilfully and wantonl}' without authority from defendant.
This the court refused.

Fi^ancis Kernan, for the appellant.

E. H. Prindle^ for the respondent.

Andrews, J. There is, at this time, but little conflict of judicial
opinion in respect to the general rule by which the liabilit}' of a master
for the misconduct of his servant, resulting in injury to third persons,
is to be tested and ascertained. In Higgins v. The Watervliet Turn-
pike Company, 46 N. Y. 23, this subject was considered by this court,
and the rule was declared to be, that the master was responsible,
civiliter, for the wrongful act of the servant causing injur}' to a third
person, whether the act was one of negligence or positive misfeasance,
provided the servant was at the time acting for the master, and within
the scope of the business intrusted to him. The master is liable only
for the authorized acts of the servant, and the root of his liability for
the servant's acts is his consent, express or implied, thereto. When the
master is to be considered as having authorized the wrongful act of the
servant, so as to make him liable for his misconduct, is the point of
difficulty. Where authority is conferred to act for another, without
special limitation, it carries with it, b}' implication, anthorit}' to do all
things necessar}' to its execution ; and when it involves the exercise of
the discretion of the servant, or the use of force towards or against

SECT. II.] ROUNDS V. DELAWARE, ETC. RAILROAD CO. 221

another, the use of such discretion or force is a part of the thing
authorized, and when exercised becomes, as to third persons, the dis-
cretion and act of tlie master, and this, although the servant departed
from the private instructions of the master, provided he was engaged
at the time in doing his master's business, and was acting within the
general scope of his employment. It is not the test of the master's
liabilit}- for the wrongful act of the servant, from which injury to a
third person has resulted, that he expi'essly authorized the particular
act and conduct which occasioned it. In most cases where the master
has been held liable for the negligent or tortious act of the servant, the
servant acted not only without express authority to do the wrong, but
in violation of his dut}' to the master.

It is, in general, sufficient to make the master responsible that he
gave to the servant an authority, or made it his dut}- to act in respect
to the business in which he was engaged when the wrong was com-
mitted, and that the act complained of was done in the course of his
employment. The master in that case will be deemed to have consented
to and authorized the act of the servant, and he will not be excused
from liability, although the servant abused his authority, or was reck-
less in the performance of his duty, or inflicted an unnecessary injury
in executing his master's orders. The master who puts the servant in
a place of trust or responsibility, or commits to him the management of
his business or the care of his property, is justly held responsil)le when
the servant, through lack of judgment or discretion, or from infirmity
of temper, or under the inlluence of passion aroused by the circum-
stances and the occasion, goes beyond the strict line of his duty or
authority and inflicts an unjustifiable injur}- upon another. But it is
said that the master is not responsible for the wilful act of the servant.
This is the language of some of the cases, and it becomes necessary to
ascertain its meaning when used in defining the master's responsibility.

The case of McManus v. Crickett, 1 East, 106, turned upon the form
of the action and the distinction between trespass and case, but Lord
Kenyon, in pronouncing the judgment of the court, said : " Where a
servant quits sight of the object for which he was employed, and, with-
out having in view his master's orders, pursues that which his own
malice suggests, his master will not be liable for such acts." This
language was cited with approval in Wright v. Wilcox, 19 Wend. 343,
and the master was held not to be responsible where the servant, in
driving his master's wagon along the highway, wilfully whipped up his
horses while the plaintiff's son, a 3'oung lad, was standing between the
front and back wheels, attempting, with the implied permission of the
servant, to get into the wagon, in consequence of which the boy was
thrown down, run over, and injured. The servant was cautioned bj- a
bystander that if he did not stop he would kill the bo}'. The court, in
the opinion delivered, assumed that the evidence showed that the ser-
vant w^iipped up the horses with a wilful design to throw the bo)' off.
The act of the servant was imminently dangerous, and it might reason-

222 KOUNDS V. DELAWARE, ETC. RAILROAD CO. [CHAP. IL

ably be inferred from the evidence tliat he designed the injury which
resulted from it. "The law," said Cowen, J., "holds such a wilful
act a departure from the master's business." So in Vanderbilt v. The
Richmond Turnpike Company, 2 Comst., 479, the master of the de-
fendant's boat intentionally ran into the boat of the plaintiff, and the
court held that this was a wilful trespass of the master for which the
defendant was not liable. In Lyons v. Martin, 8 Ad. & El. 512, it was
held that where a servant merely authorized to distrain cattle damage-
feasant, drives cattle from the highway into his master's close, and
there distrains them, the master is not liable. In Mali v. Lord, 39 N.
Y,, 381, the act complained of was an illegal imprisonment of the
plaintiff b}' the servant of the defendant, and the court held that the
authority to do the act could not be implied from the general employ-
ment of the servant. The imprisonment, assuming that the suspicion
upon which it was made was well founded, was illegal. The master
could not lawfully have detained the plaintiff if he had been present,
and the court were of the opinion that the servant could not be said to
be engaged in his master's business when he assumed to do what the
master could not have done himself. See, also, Bolingbroke v. The
Local Board, etc., L. R. 9 C. P. 575. It is quite useless to attempt to
reconcile all the cases. The discrepancy between them arises not so
much from a difference of opinion as to the rule of law on the subject
as from its application to the facts of a given case.

It seems to be clear enough from the cases in this State that the act
of the servant causing actionable injur}' to a third person does not sub-
ject the master to civil responsibility in all cases where it appears that
the servant was at the time in the use of his master's property-, or be-
cause the act, in some general sense, was done while he was doing his
master's business, irrespective of the real nature and motive of the
transaction. On the other hand, the master is not exempt from respon-
sibility in all cases on showing that the servant, without express
authority, designed to do the act or the injury complained of. If he is
authorized to use force against another when necessary in executing
his master's orders, the master commits it to him to decide what de-
gree of force he shall use ; and if, through misjudgment or violence of
temper, he goes beyond the necessity of the occasion, and gives a right
of action to another, he cannot, as to third persons, be said to have
been acting without the line of his duty, or to have departed from his
master's business. If, however, the servant, under guise and cover of
executing his master's orders, and exercising the authority- conferred
upon him, wilfully and designedly, for the purpose of accomplishing his
own independent malicious or wicked purposes, does an injur}- to an-
other, then the master is not liable. The relation of master and ser-
vant, as to that transaction, does not exist between them. It is a
wilful and wanton wrong and trespass, for which the master cannot be
held responsible. And when it is said that the master is not respon-
sible for the wilful wrong of the servant, the language is to be under-

SECT. II.] ItOUNDS V. DELAWARE, ETC. KAILHOAL) CO. 223

stood a.s referring to an act of po.sitive and designed injnry, not done
with a view to the master's service, or for the purpose of executing his
orders. Jn this view, the judge at tlie trial correetl}' refused to qualify
his charge, or to charge tliat it was sufficient to exempt the defendant
from liability that the act of the brakeman in putting the plaintiff olf
the car was wilful. He had ahead}- chaiged that if the brakeman acted
" wilfully an'l maliciously towards the plaintiff, outside of and in excess
of liis duty," in putting him off tlie car, the defendant was not liable.
If tlte counsel intended to claim that the defendant was exempt from
resi)on.sibility if the brakeman acted wilfully, although without malice,
the i)oint was not well taken. That the brakeman designed to put the
plaintiff off the car was not disputed, and this was consistent with the
authority and duty intrusted to him. But a wilful act wdiich will exempt
a master from liability for the tort of his servant, must be done outside
of his duty and his masters business. The chaige was, therefore,
strictly correct, and the exception was not well taken.

Neither was the defendant entitled to have the court rule, as matter
of law, that, upon the circumstances as shown by the evidence on the
part of the plaintiff, the defendant was not responsible. It is conceded
that the removal of the plaintiff from the car was within the scope of
the authority conferred upon the baggageman. The plaintiff had no
right to be there. He was not a passenger or servant, and had no
express or implied permission to be upon the car. The brakeman,
in kicking the boy from the platform, acted violently and unreasonably^,
and to do tb^s while the car was in motion, and when the space between
it and the wood-pile was so small, was dangerous in the extreme. But
the court could not say from the evidence that the brakeman was acting
outside of and without regard to his employment, or designed to do the
injury which resulted, or that the act was wilful within the rule we have
stated. If the master, when sued for an injury resulting from the
tortious act of his servant while apparentl}- engaged in executing his
orders, claims exemption upon the ground that the servant was, in fact,
pursuing his own purposes, without reference to his master's business,
and was acting maliciously and wilfulh-, it must, ordinarilv, be left to
the jury to determine this issue upon a consideration of all the facts
and circumstances proved. See Jackson v. The Second Ave. R. R.
Co., 47 N. Y. 274. There may be cases where this rule does not ap-
ply, and where the court would be justified in taking the case from the
jury ; but where different inferences may be drawn from the facts
proved, and when, in one view, they may be consistent with the liability
of the master, the case must be left to the jury. The fact that the
plaintiff was a trespasser on the cars is not a defence. The lad did not
forfeit his life, or subject himself to the loss of his limbs, because he
was wrongfully on the car. The defendant owed him no duty of care
by reason of any special relation assumed or existing between the com-
pany and him, but he was entitled to be protected against unnecessary
injury b}' the defendant or its servants in exercising the right of remov-

224 PHELON V. STILES. [CHAP. II.

Ing him, and especially from the unnecessary and unjustifiable act of
the brakeman by which his life was put in peril, and which resulted in
his losing his limb. Sanford v. Eighth Ave. R. R. Co., 23 N. Y. 343 ;
Lovett V. Salem, etc., R. R. Co., 9 Allen, 557; Holmes v. Wakefield,
12 id. 580.

No error of law was committed on the trial, and the judgment of the
General Term should be affirmed, with costs.

All concur. Judy meat affirmed.

PHELON AND Wife v. STILES.
ELLEN PHELON v. STILES.

Supreme Court of Connecticut. 1876.

[43 Conn. 426.]

Actions of trespass on the case, for injuries from the negligent acts
of the servant of the defendant ; brought to the Superior Court in
Hartford Count}-. The two cases involved the same facts and were
tried together. The court made the following finding of facts : —

On the first day of November, 1872, Stiles was, and had for a long
time been, engaged in selling flour and feed in Suffield. He then had,
and for more than a year before had had, in his employ one George H.
Babcock, whose principal employment was to deliver the goods so sold
by Stiles to his customers. On that da}', in the afternoon, Babcock
took a load of twenty bags of flour and six of bran, the former to be
delivered at a Mr. King's and the latter at a Mr. Smith's. Smith
lived on a side road branching off from the road leading to King's,
and when Babcock came to this side road he took off from his load the
bags destined for Smith's and piled them up on the side of the road
within the limits of the highway, and left them there while he went on
to King's with the remainder. While these bags were so remaining
there Mrs. Samuel C. Phelon and Mrs. Ellen Phelon were driving along
the road, and their horse being frightened at the bags ran away and
threw them both out and injured them.

• I find that the bags so left were an object calculated to frighten
horses of ordinaiy gentleness; that the horse driven b}' the plaintiffs
was of ordinal'}' gentleness ; and that the plaintiffs were not guilty of
any negligence which contributed to the injury.

I find that Babcock placed the bags in the highway without the
knowledge or express authority of the defendant, and for the purpose
of so shortening the time to be occupied by him in delivering the goods
as to enable him to return to Suffield in time to take a train for Hart-
ford on the same day on his own private business.

If the defendant was liable to pay the damages so happening to the
plaintiffs, I assess the damages at the sum of three hundred dollars in

SECT. II.] PHELON V. STILES. 225

each case, and I reserve for the advice of the Supreme Court the
question wiiether Stiles is liable for the damages so caused by the acts
of Babcock.

(\ E. PerMna and J. W. Johnson, for the plaintiffs.

W. C. Case and S. A. York, for the defendant.

Park, C J. The same principles of law appl}- to both of these
cases, and therefoi'e they will be considered together.

The defendant claims that the court below has not found that Bab-
cock was the servant of the defendant. We think there is no founda-
tion for this claim. We construe the phrase, " had in his employ one
George H. Babcock," is meaning that Babcock was in the emplo}' of
the defendant as a hired servant.

The principal question in the case is, whether Babcock in deposit-
ing the bags of bran intended for INIr. Smith by the side of the highway,
and leaving them there until his return from Mr. King's, where he
went to deliver the bags of flour, was engaged in the business of the
defendant in the the regular course of his employment.

The defendant was a flour and feed merchant, and it was his practice
to deliver his merchandise at the residence of his customers. Babcock
was employed to make delivery, and, on the occasion in question,
started with his bags of flour and bran, sold by the defendant to King
and Smith, to deliver them to these parties in the regular course of
his employment.

The question then is, was Babcock engaged in the defendant's
business while depositing and leaving the bags by the side of the
road ?

The defendant claims that those acts were performed by him on his
own account ; that he was desirous to take a train for Hartford later in
the dav, on his own private business, and that he left the bags by the
roadside to enable him to make his deliver}- more rapidh' and return
earlier, so that he could accomplish his purpose.

But what business of his own was he then doing? He was not then
attending to private business in going to Hartford. That was to be
undertaken later in the day. He left the bags to expedite the deliver}'.
Did it make the business his own because he despatched it more
speedily than it would naturally have been done? He was sent by the
defendant to deliver the flour and bran. Did he do anything else than
deliver them? His whole object in leaving the bran by the side of the
road was to gain time. Suppose he had driven the horse with such
speed as amounted to carelessness in order to gain time, and had
injured a person by so doing, would he be transacting his own business
while driving so rapidly, so that the defendant would not be hable?
Suppose he had left the bran out of consideration for his horse, and the
same result had followed, would the defendant be excused? He was
under the necessity of taking the bran to Mr. King's, or of leaving it by
the side of the road until his return ; suppose he had taken the latter
course without any special object in view, would it make any difference

226 CASWELL V. CROSS. [CHAP. IL

in the case? We think all that can be said of the matter is, that
Babcock performed the defendant's business in delivering the bran in a
shorter time than he would have done had he not intended to go to
Hartford later in the day ; and certainly the rapidity with which the
business was transacted cannot operate to excuse the defendant.

Tlie defendant further claims that the bags, left as they were bj- the
side of the road, became a public nuisance, and that the leaving of
them was therefore a public offence, and that he cannot be liable for
such an act of his servant. But Babcock did not intend to create a
nuisance. The case does not find that he intended any harm. All
that can be said is, that he negligently left them while performing the
business of the defendant, and for such negligence the defendant is of
course liable. We think there is nothing in this claim.

We advise judgment for the plaintiffs.

In this opinion the other judges concurred ; except Foster, J., who
dissented.

CASWELL V. CROSS.
Supreme Judicial Court of Massachusetts. 1876.

[120 Mass. 545.]

Tort for an arrest and false imprisonment. The case was submitted
to the Superior Court, and, after judgment for the defendant, to this
court on appeal, on an agreed statement of facts, in substance as
follows : —

The defendant emplo3'ed J. E. Cupples & Co. to collect a bill in his
favor against the plaintiff, amounting to twelve dollars and accrued
interest. Cupples & Co. advertise and hold themselves out to the
public as a " Law and Collection Bureau," and have their place of
business on School Street, in Boston. They are not regularly admitted
attorneys, but they sue out writs upon claims placed in their hands for
collection, sometimes appearing in court as the attorneys of record in
their cases, and sometimes using the names of regularly admitted at-
torneys.

In all courts in the vicinity of Boston, where they are permitted to
do so, they enter their own appearance only, and always retain the
exclusive control and management of their cases in and out of court,
whenever an attorney's name is entered of record. They use the name
of a regularly admitted attorney for the mere purpose of complying with
the rules of court. In addition to appearing in court in their own cases,
they examine poor debtors arrested by them, and do the general busi-
ness of regular attorneys, in making writs and declarations, levying and
collecting executions, &c.

SECT. II.] CASWELL V. CROSS. 227

Upon the claim placed in their hands b}- the defendant they brought
an action against the plaintiff in the Municipal Court of Boston, using
the name of a regularly admitted attorney, and recovered judgment on
September 1, 1874, on default, for the amount of $1.").12 debt and
$<S.I'J costs, and took out an execution in favor of the plaintiff on said
judgment, which execution was duly returned in no part satisfied.

Cu[)ples & Co. then brought another action upon said judgment in
the I'olice Court of Charlestown, and recovered a new judgment, in-
cluding the full amount of the prior judgment and costs. They then
took out an execution on this last judgment, with the usual diivctions
for the arrest of the defendant in said action ; and one Perkins, who
was a clerk in the employ of Cupplcs & Co., and who had the general
management of their cases in and out of court, made an affidavit as
required b}- law for the arrest of poor debtors, which affidavit was duly
attached to said execution. Perkins then gave said execution to an offi-
cer with instructions to arrest the judgment debtor. The officer arrested
him ; he recognized with suret3' to take the oath for the relief of poor
debtors, gave the required notice, submitted himself to be examined,
was examined by Perkins in behalf of the judgment creditors, and was
finalh' discharged from arrest, upon taking said oath.

The judgment upon which execution was issued, and upon which
the plaintiff was thus arrested, was for less than twenty dollars, exclud-
ing the costs in that and the prior action ; but this fact was unknown
to the plaintiff or his attorney until after the oath had been adminis-
tered to him, — both judgments having been upon default and without
his actual knowledge.

The defendant gave Cupples & Co. no special instruction as to the
manner in which they were to proceed, or the proceedings they were to
adopt in collecting said bill. He called upon them in answer to their
advertising card sent to him, a copy of which is printed in the margin.''
He had no knowledge of the manner in which they collected bills and
conducted their business, except such as he derived from this advertise-
ment, and he had no actual knowledge of an\- of the proceedings of
Cupples & Co. and Perkins, in trying to collect his claims against the
plaintiff, or in making said affidavit, or in causing the plaintiff to be

1 " OiEce of ' The New England Collecting Agency ' for the Special Collection of
Physicians' Accounts. 3 School Street, Room 15. Boston, Mass., Dec. 1873. Sir:
As the close of the year is now at hand when it is customary for books to be made up
and accounts sent out, we would again direct your attention to our agency for the col-
lection of physicians' accounts. We have made complete arrangements for systemati-
cally and promptly collecting all such, throughout the city and neighborhood. Every
effort is made to trace parties who have moved, and most energetic steps are taken to
compel reluctant and dilatory debtors to settle. Should you intrust us with your col-
lections we shall take your instructions as to the manner in which you wish your debtors
treated, whether with delicacy, so as not to offend them, or with such severity as to
show that no trifling is intended. Our terms are ten per cent, commission on the
amount we collect. Settlements made as often as wished. Yours obediently, J. E.
Cupples & Co " — Rep.

228 CASWELL V. CROSS. [CHAP. IL

arrested, until after the bringing of this suit. He left with tlieni sev-
eral other claims against oilier parties for collection, at the same time,
Cupples & Co. agreeing with him to make no charge against him or
any of his claims unless the}' were successful in making tlie collections.

Upon the foregoing facts, if the plaintiff was entitled to recover, a
default was to be entered against the defendant, and the case stand
for the assessment of damages only ; otherwise, judgment for the de-
fendant.

P. IT. Coojiey, for the plaintiff.

C. W. Twner, for the defendant.

Loud, J. It is not necessary in this case to consider whether the
relation of attorney and client existed between Cupples & Co. and the
defendant, nor whether the defendant understood Cupples & Co. to hold
themselves out as attorneys at law. The card sent by them to the de-
fendant, which he received and to which he responded, contains ample
notice of the character of the firm and of the business pursued by them.
They held themselves out as professional duns ; a character quite well
enough known. Their card contains full notice of the mode in which
they did business. They announced that they would act under instruc-
tions ; that they had modes of doing business, either with delicacy which
could not offend, or with a severity which indicated that there was to be
no trifling. We think any person who employs such agents with such
knowledge on his part, giving no special instructions, authorizes the
agents to use, and becomes responsible for injuries caused by the use
of, such means as they see fit to adopt in the prosecution of his busi-
ness for his benefit, whether those means be honorable and proper or
whether resort is had to insolence and insult or to misuse or abuse of
legal process. They are his servants to do his work in their own man-
ner, though that manner ma^' be unjustifiable or illegal. This view of
the case renders it unnecessarv to inquire whether the mere fact that the
present defendant was the plaintiff in the proceedings against Caswell,
and that the execution upon which Caswell was arrested was in his
name and prosecuted for his benefit would be of itself sufficient to hold
the defendant responsible for the illegal arrest and imprisonment of the
plaintiff. Upon the agreed statement, therefore, the defendant is to be
defaulted, and the case is to stand for

Assessmetit of damages}

1 Compare Smith v. Keal, 9 Q. B. D. 340, 349-354 (C. A., 1882).— Ed.

SECT. II.] ROURKE V. WHITE MOSS COLLIERY CO. 229

ROURKE V. THE WHITE MOSS COLLIERY CO.
CouKT OF Appeal. 1«77.

[2 C. P. D. 205.]

Appeal from the decision of the Common Pleas Division, making
absolute an order to enter judgment for defendants, 1 C. P. D. 556.

The action was for injuries caused to plaintiff b}' the negligence of
defendants' servants; and was tried before Lush, J., at the Liverpool
winter assizes, 1875.

The defendants were the owners of a colliery, and had begun sink-
ing a pit or shaft, for which purpose they employed workmen (among
whom was the plaintiff) , and had erected a steam engine near the mouth
of the shaft, and employed men to drive it. Having sunk some depth,
they entered into an agreement with Roger Whittle to carry on the work
for them. The following were the terms of the agreement, &c., de-
tailed b}- the managing director of the defendant companj' in answer
to interrogatories : —

"■3. The sinking and excavating were executed b}' Roger Whittle,
contractor, under a verbal contract, at a certain price per j'ard. Whit-
tle to find and provide all labor necessary for such sinking, and the
company to pro»ide and place at the disposal of Whittle the necessary
engine power, ropes, and hoppets, with two engineers to work the en-
gine, one for the day and one for the night, such engineers, engine,
and hoppets being under the control of the contractor,

" 4. The engine, pulley, and hoppet which were used to bring to the
surface the stuff excavated in the shaft were the propert\' of the defend-
ants, but were at the time of the accident under the control of the
contractor.

" 5. Ellis Lawrence, engineer, was in charge of the engine, pulley,
and hoppet on the 27th of October, 1874, under the control of Whit-
tle. Lawrence was employed by the defendant company, who on the
7th of November paid him for his work from the 21st of October to
the 3d of November."

On the 27th of October, 1874, the plaintiff, being one of the men
employed and paid by Whittle, was working at the l)ottom of the shaft,
when, owing to Lawrence, the engineer, falling asleep, the engine was
not stopped at the proper time, and the hoppet was overturned, and
fell with its contents on the plaintiff below, and injured him severelv.

A verdict was found for the plaintiff for £300, with leave to move
to enter judgment for the defendants, if the court should be of opinion
that the def'^ndants were not liable to the [)laintiff for Lawrence's
negligence.

The Com-non Pleas Division ordered judgment to be entered for the
defendants.

The plaintiff appealed.

230 KOUKKE V. WHITE MOSS COLLIKKY CO. [CHAP. IL

X. Temple^ Q. C, and Galley, for tlie pluiiiUff.

Herschell, Q. C, ai:d McConnell, for Ihe dcfciidants.

L. Temple, Q. C, in reply.

CocKBUiiN, C. J. I am of opinion that the judgnient of the Common
Pleas division should be atllrmed. My mind has thictnated during tlie
argument; but I have been led to the opinion I have formed l«y the
answers given to the interrogatories by the managing director of tlie de-
fendant company. It is quite unnecessary to say whether the case of
Wiggett V. Fox, 11 Ex. 83 2 ; 25 L. J. (Ex.) 188, which was relied on
for the defendants, was rightly decided. INIy own view is tliat it was
not; though it might agree with the decision if 1 could come to the
conclusion that the facts were what Baron Channell appears to have
thought they were, in the explanation he gives of that case in Abra-
ham V. Reynohls, 5 H. & N. at pp. 149-150. But I cannot agree that
the facts were as the learned Baron states them. It is, however, un-
necessary to express any decided opinion on that case, because it does
not apply to the present, the facts being different. I regret that our
decision must be against the plaintiff, for he has sustained a serious
injury owing to the negligence of a man who undoubtedly was at the
time of the accident the general servant of the defendants, and who
had been placed by them in the position he occupied. But these cir-
cumstances afford no ground, in point of law, for visiting the defend-
ants with the result of the man's negligence, if he was not in point of
fact their servant at the time, in the sense of being actually employed
to do their work. If the agreement had been that, whereas Whittle
was to sink the shaft and get away the soil, and do all the necessary
work to make a proper shaft, yet that incidentally to this work the de-
fendants had undertaken to do part of it themselves by means of their
machinery and servants — so that this part of the work would have
been carried on independently of Whittle and not under his control, —
then the defendants would have been liable. For in that case Lawrence,
the engineman, would have continued to be the servant of the company,
and would have been working as their servant at their work. But when
we look at the answers to the interrogatories the facts amount to no
more or less than this : Whereas Whittle would have been obliged to
hire an engine and engineers in order to carry out the excavation which
he had undertaken, the company, having already an engine and at-
tendants on the spot, say to the contractor, " We have got an engine
and enginemen already, and it shall be part of the contract that we
will let you have them to do your work and to be under your control, and
we will pay you so much the less per yard than we should have done
had you been obHged to find the engine and pay the engineer yourself."
It appears to me that the defendants put the engine and this man Law-
rence at Whittle's disposal just as much as if they had lent both to
him. But when one person lends his servant to another for a particular
employment, the servant for anything done in that particular employ-
ment must be dealt with as the servant of the man to whom he is lent,

SECT. II.] EVANS V. DAVIDSON. 231

altlioiigli he remains the general servant of the person who lent him.
Looking at the present case, I think we must arrive at the conclusion
that Lawrence was practically in Whittle's service at the time he was
guiltv of the negligence complained of; and this being so, it follows
that Lawrence became the fellow-servant of the plaiulitf; and it is set-
tled law, which it is now too late to disturb, that a servant cannot re-
cover damages from his employer for any injury he may have sustained
through the negligence of a fellow-servant. Therefore, Lawrence and
the plaintiff, being fellow-servants in the employ of Whittle, it follows
that the plaintilT cannot maintain an action against the defendants.
The judgment must, therefore, be affirmed.'^

Judgment affirmed^

EVANS y. DAVIDSON.
Court of Appeals of Maryland. 1880.

[53 .!/(/. 245.]

Appeal from the Circuit Court for Cecil County.

The case is stated in the opinion of the court.

Exception. — At the trial the plaintiff offered the following praN'ers : —

1. If the jury believe that the defendant's servant, in the course of
his master's service, negligently killed the plaintiffs cow, the plaintiff
is entitled to recover the value of said cow.

2. That if the jury find that the servant of the defendant killed the
plaintiff's cow, by negligently knocking it on the head with a stone
while driving said cow out of defendant's field, and shall also find that
said cow was at the time eating up the corn of the defendant, and had
escaped into said field through a defect in defendant's fences, which he
was bound to repair, and that at the time the said servant was in the
defendant's employ, hired for a period of nine months to do general
farm work, and had, on the day of the injury complained of, been sent
into said corn-field to cultivate said corn, and that the defendant was
absent at said time, that tlien the plaintiff is entitled to recover ; pro-
vided the jury shall believe that the servant was acting in the course
of his employment, at the time of the killing, and that it was part of

1 Concurring opinions were pronounced by Mellish, L. J., Baggall.\y, J. A., and
Bramwell, J. A. — Ed.

2 Ace: Miller i-. M. & N. W. Railway Co., 76 Iowa, 655 (1888) ; PoweU v. Con-
struction Co., 88 Tenn. 692 (1890) ; Wyllie i'. Palmer, 137 N. Y. 248 (1893) ; Donovan
V. Laing, &c , Construction Syndicate, [1893] 1 Q. B. 629 (C. A.) ; BjTne v. K. C, Ft.
S. & M. R. Co., 61 Fed. R. 605 (C. C. A., Sixth Circuit, 1894).

Contra: Burton v. G., H. & S. A. Ry. Co., 61 Tex. 526 (1884) ; New Orleans, &c.,
Railroad Co. v. Norwood, 62 Miss. 565 (1885). Compare Omoa Coal & Iron Co. »
Huntley, 2 C. P. D. 464 (1877). — Ed.

232 EVANS V. DAVIDSON. [CHAP. IL

said servant's duty to protect his said master's corn by driving cattle
from said field.

3. That it is not necessary, to establish the master's liabilit}- for the
acts of his servant, that he should direct the particular act, but if
the jur}' believe that he was placed by his master, in his stead, to do
the class of acts necessary to be done to protect his master's property',
it will be sufficient authority from the master to authorize the servant
to do an act within such class ; and if the jur}- believe that the defend-
ant's servant was sent in this case to cultivate his master's corn, in his
master's absence, and that the plaintiffs cow, together with about
thirt}' other cattle, broke into said corn-field, and were eating up
said corn of the defendant, and shall find that the said servant of
the defendant was employed at the time b}- the nine months, to do
general farm work for the defendant, that then there is evidence in the
case from which the jury may find that in driving said cow of the plain-
tiff from defendant's corn-field, and protecting his corn, the servant
was acting in the service of his master, with his master's authority.

The defendant prayed the court to instruct the jur^' : —

That there is no evidence in this case legally sufficient to entitle the
plaintiff to recover.

The court (Robinson and Stump, JJ.) granted the defendant's
prayer, but rejected the plaintiff's prayers ; the plaintiff excepted,
and the verdict and judgment being for the defendant, the plaintiff
appealed.

The cause was argued before Bartol, C. J., Miller, Alvey, and
Irving, JJ.

Albert Constable and Heyiry W. Archer, for the appellant.

George A. Blake and W. E. Evans, for the appellee.

Alvey, J., delivered the opinion of the court.

The only substantial question in this case is whether the defendant,
the present appellee, is liable for the wrongful act of his servant in
killing the plaintiff's cow while driving her out of the defendant's
corn-field.

It appears in proof tliat the defendant was a farmer, and that his
farm adjoined that of one Boulden ; that he had emplo3'ed on his farm
negro Lewis and two other negro hands, and that thej* were emploj'ed
for a period of nine months to do general farm work on the farm ; that
on the day the plaintiff's cow was killed the defendant w^as awav from
home, and that the three negro servants or hirelings were at work in
the corn-field, cultivating the corn, when a herd of cattle, consisting of
about tbirt}' head, among which was the plaintiff's cow, broke into the
defendant's corn-field, where his hirelings were at work, from the ad-
joining farm belonging to Boulden ; and that upon discovering the cattle
among the corn the servants " immediately started to drive them out,
and in doing so the said negro Lewis negligently struck the plaintiff's
cow with a stone and killed her before she had left the field." There
was also proof on the part of the defendant that he had given no orders

SECT. II.] EVANS V. DAVIDSON. 23-3

in regard to driving cattle out of tlie field, and that he did not know
that the cattle were in the corn until after the cow had been killed.

The court below, at the instance of the defendant, instructed the jury
that there was no evidence in the cause legally sufficient to entitle the
plaintiff to recover. To this ruling and the rejection of the prayers
offered by the plaintiff the latter excepted.

There is no question as to whether the relation of master and servant
existed between the defendant and the party doing the wrongful act
complained of; that is conceded. But the question is whether the act
of driving the cow out of the corn-field was within the scope of the
servant's employment under the circumstances of the case.

If that act was, either expressly or by fair implication, embraced
within the employment to do general farm work on the defendant's
farm, then it is clear the latter is liable for any wrong or negligence
committed by the servant in doing the act authorized to be done.
In one sense, where there is no express command by the master, all
wrongful acts done by the servant may be said to be beyond the scope
of the authority given ; but the liability of the master is not determined
upon any such restricted interpretation of the authority and duty of the
servant. If the servant be acting at the time in the course of his
master's service and for his master's benefit, within the scope of his
employment, then his act, though wrongful or negligent, is to be treated
as that of the master, although no express command or privity of the
master be shown. This general principle is sanctioned by all the
authorities. Baltimore & Ohio R. Co. v. Blocher, 27 Md. 277 ; B. «&
Y. Turnpike Co. v. Boone, 45 id. 344 ; Turberville v. Stanipe, 1 Ld.
Raym. 265 ; Huzzey v. Field, 2 C. M. & R. 439 ; Seymour v. Green-
wood, 7 H. & N. 354 , Limpus v. London Gen. Omnibus Co., 1 H. &
Colt. 526 ; Barwick v. English Joint Stock Bank, L. R., 2 Exch. 262 ;
Wood Mast. & Servt., § 307, and the authorities there collected.
Therefore the fact that the master gave no express direction in
regard to driving the cattle out of the corn-field and did not know
of their being in it until after the doing the injury complained of, will
not avail to exonerate the master, if the servant was acting in the
course of his employment.

Was then the servant acting in the course of his employment?
What is embraced, as commonly understood, in general farm work?
In the ver}' nature of the employment there must be some implied
authorit}' and duties belonging to it ; and this as well for the protection
of the master as third parties. If, for instance, a servant thus em-
ployed should see a gate open or a panel or fence down, through which
a herd of cattle might or would likely enter and destroy his master's
grain, we suppose all would sa}' that it would be the positive duty of
the servant to close the gate or put up the fence, to prevent the de-
struction of the grain ; and if he should pass by and wilfully neglect
such duty, it would constitute cause and a sufficient justification for the
discharge of the servant. If that be so, how much more imperative

234 STEVENS V. WOODWARD. [CHAP. II.

the dut}' where, as in this case, in the absence of tlie master, the ser-
vant being in the field at vvorlc, and seeing a herd of cattle break into
the field, and in the act of destroying the corn, to drive out the cattle
and thus to save the corn from destruction? To do such act, for the
preservation of the growing crop, must be regarded as ordinary farm
work, and such as every farmer, employing a servant to do general
farm work, would reasonabh' contemplate and have a right to expect
as matter of duty from the servant. The servant, therefore, was acting
in the course of his employment in driving out the cattle, and if he did,
while driving them out, commit the wrong complained of, the master is
hable therefor.

It follows that we cannot concur with the court below in tlie instruc-
tion given to the jury ; and for the reasons already stated, we think
the first and second prayers offered by the plaintiff should have been
granted. The plaintiff's third prayer seems to have been intended, not
so much as an instruction upon the law of the case, as an instruction
as to the conclusion of fact at which the jury were at liberty to arrive
upon finding certain other facts. This form of prayer is not free from
objection, and there was no error in rejecting it.

Judgment reversed, and neiv trial awarded.

STEVENS AND Another v. WOODWARD and Others.

Queen's Bench Division. 1881.

[6 Q. B. D. 318.]

Appeal from the Lord Mayor's Court.

Action for negligence. At the trial before the Recorder it appeared
that the plaintiffs occupied premises beneath the offices of the defend-
ants, who were solicitors. Evidence was given for the plaintiffs that a
quantity of water had come from the offices of the defendants, and it
was found to have escaped from a tap left open in a lavatory there. It
damaged the property of the plaintiffs. At the close of the plaintiffs'
case, counsel for the defendants submitted that there should be a non-
suit as there was no evidence that the defendants or any servant of
them had been guilty of negligence, and he cited Ross v. Fedden, Law
Rep., 7 Q. B. 661. The learned judge declined to nonsuit, whereupon
evidence for the defendants was given, and one of them said : " The
lavatory is in my room, and is for my own use exclusiveh', and m}'
orders are that no clerk shall come into my room after I have left. I
left the oflfice on the 12th of August, at 5.45, after washing my hands
and turning off the tap." A clerk of the defendants said, " I went into
the room of the last witness to wash m}' hands. I turned the tap and
the water did not flow, and then I went out." The jur}' found a ver-
dict for the plaintiffs for £15, and leave was reserved to the defendants

SECT. II.] STEVENS V. WOODWARD. 235

to move for a nonsuit if tlie court should be of opinion that there was
no evidence of negligence, or that under the circumstances the defend-
ants were not liable.

A rule having been obtained accordingly,

Candy showed cause. The learned Recorder was right in refusing
to nonsuit, and also in leaving the case to the jury. They have decided
the question. If the master himself had left the tap open he would
have been undoubtedly liable. The clerk to a solicitor is more than a
servant, he acts for his employer in his absence. Here the clerk was in
the office during working hours, and it was part of the routine of the
day's work to wash his hands. It is the general practice for such clerks
to wash their hands in the offices where they are emploj'ed. Here the
clerks' room contained a lavatory for their use, but the water failed
there, and so the clerk went to the other room. That he was forbidden
to do so is irrelevant. Whatman v. Pearson, Law Rep. 3 C. P. 422.
He was acting within the scope of his employment. Venables v. Smith,
2 Q. B. D. 279. This case is not like Storey r. Ashton, Law Rep. 4
Q. B. 47G, where the defendant's carman after business hours drove a
clerk out on business of his own, and was negligent while on the inde-
pendent journey. In such cases no doubt the master is not liable :
Mitchell V. Crassweller, 13 C. B. 237. The question is whether the
subordinate is acting within the scope of his authority if he be an agent,
or in the course of his employment if he be a servant. The clerk here
was so acting.

Petheram^ Q. C. {De Witt and G. G. Kennedy with him), in support
of the rule. The principle is well stated in Whatman v. Pearson,
by Montague Smith, J. Here the clerk was acting for himself, and on
his own responsibility. His duty was clearly to keep in his own room,
and not to wash his hands in the room of his master. Could it be said
that the master would have been liable if the clerk had washed his
hands at some tavern near during office hours and had left the tap there
running? His negligent act was not in the scope of his employment,
and the defendants are not answerable for the consequences. If the
contention for the plaintiffs were right, a master would be liable for an}'
independent and wrongful act of the servant done on the employer's
premises.

Grove, J. I am of opinion that the verdict should be entered for
the defendants. No doubt this question is a very nice one, and there
may be cases close to the line between the liability and non-liability of
a master for the act of another person done in the " course of his em-
ployment" if he is servant, or within the "scope of his authority"
when he is an agent, for as Mr. Candy well says, such is the mode in
which those terms have been applied by the courts, although the words
"scope of authority " may cover both cases. The facts are simple.
The defendants were solicitors, with a clerk who had an office or some
room in which he was entitled to be, and where, if he wished to wash
his hands he could, as the learned counsel admits, wash them. The

236 STEVENS V. WOODWARD. [CHAP. II.

master left the premises, whether hnally for the evening or not does not
distinctl}- appear, nor is it, I think, material. He had left, and he says,
" The lavatory- is in mj' room, and is for ra}' own use exclusively, and
my orders are that no clerk shall come into my room after I have left."
The clerk therefore would have no right to enter contrary to this par-
ticular prohibition, prima /acie at least he would not be entitled to do
so, and the onus would lie on the plaintiffs to show that the clerk had
permission to use his master's room. The case is a little stronger by
reason of the prohibition, but I quite agree with Mr. Candy that there
are cases where a prohibition would have no effect, and I cannot put a
nearer one than that I suggested during argument : suppose this were not
a clerk, but a housemaid, whose diit\' it was to clean up the room and at-
tend to the lavatory and wipe out the basin ; then I think that, although
she was expresslj' prohibited from using the basin, and was told not to
leave the tap open, 3'et, notwithstanding the prohibition, her act of
using the basin and omitting to turn off the water would be so incident
to her employment that the master would be liable. Although a defi-
nition is difficult, I should sa}' that the act for which the master is to be
held liable must be something incident to the employment for which the
sei'vant is hired, and which it is his duty to perform. All the cases
tend to show, and Mitchell i\ Crassweller and Storey* t\ Ashton,
point out clearly that line of distinction ; in one case a servant was
employed to drive his master's cart, and after coming home to the
stable started off on a fresh journej' for his own purposes, and during
that second journev, which was not incident in any wa}' to his employ-
ment, an accident happened ; in the other case, which goes a little fur-
ther, before the servant put up the cart he turned off and went in an-
other direction, making a detour, and an accident happened ; in both
those cases the master was held not liable. I think I should have come
to the same conclusion as that I have arrived at if there had been no
express prohibition in the case, and it had merel}' been shown that the
clerks had a room of their own and a lavatory where they could wash
their hands. Then what possible part of the clerk's employment could
it be for him to go into his master's room to use his master's lavatory,
and not only the water but probably his soap and towels, solely for his,
the clerk's own purposes? What is there in any way incident to his
employment as a clerk? I see nothing. The case seems to me just the
same as if he had gone up two or three flights of stairs and washed his
hands in his master's bedroom. It is a voluntar}' trespass on the por-
tion of the house private to his master. I do not use the word trespass
in the sense of anything seriously wrong, but he had no business there
at all. In doing that which his employment did not in any way authorize
him to do he negligently left the stop-cock open, and the water escaped
and did damage. I think there was nothing in this within the scope of
his authority or incident to the ordinar}' duties of his employment.
Then it is said tliat is a question for the jur}', and that if there is evi-
dence on both sides the court is bound to accept the finding of fact

SECT. II.] STEVENS V. WOODWARD. 237

That is so where there is a conflict of evidence, but there is no conflict
here. The plaintiffs' case was one of apparent probability, that the
water came from premises in which a stop-cock was left open. That
might ha[)pen in various ways, but the learned Recorder seemed to
think he must assume, until the contrary was shown, that there was an
implied liability on the defendants. If, however, that was removed b^'
uncontradicted evidence, showing the implication to be a mistake, as it
would have been if the defendants had shown that a stranger, some
friend of one of the clerks, had come in and washed his hands in the
lavatory and had left the stop-cock open, surely those facts would dis-
pose of the prima fade liability. The prohibition is material as show-
ing the local limit of the clerk's duties. The case is wholly free from
any conflict of evidence, for the jury believed the evidence given both
for the plaintiifs and the defendants, it being quite consistent. The
evidence for the plaintiffs made out a ground of liability, and the evi-
dence for the defendants limited it, by showing that the clerk was not
in the relation of servant to the master in respect of this particular act
of neglect. I think the judgment should be for the defendants.

LiNDLEY, J. I am of the same opinion, and I agree for much the
same reasons. I do not see on what principle the defendants are to be
held liable for a negligent act of a man who trespasses in their room
and leaves their tap nnining. The facts show that the clerk was a tres-
passer after his master had left. I think this a plain case, and that our
judgment should be for the defendants, with costs.

Bale absolute}

1 Compare Ruddiman v. Smith, CO L. T. Rep. n. s. 708 (Q. B. D., 1889). There
the defendauts, mauufacturiug statioucrs, supplied in their apartments a lavatory for
the use of their clerks. A few minutes after the close of business, the foreman went
to the lavatory to wash liis hands, found the water had been turned off, and negligently
left the tap open. When the water was turned on, damage was done to the premises
and goods of the plaintiffs, wiio sublet from the defendants the floor below. In the
Lord Mayor's Court of London the Recorder gave judgment for the plaintiffs. The
defendauts appealed. The Queen's Bench Division dismissed the appeal. Lord
Colekid(;e, C. J., said : " The master is liable if the act of negligence was done by the
servant, either within the scope of his authority or as an incident to his employment.
I say, with some doubt, on the variety of cases decided, that it might have been within
the scope of his employment to wash his hands ; I should say it was, though I do not
desire to place my judgment upon that, as I am clearly of opinion that it was an inci-
dent to bis employment. In such houses there is generally some place for the clerks
to hang up their hats, and a lavatory, and so on ; all these things are incident to the
employment. . . . Stevens v. Woodward, as far as the decision goes, is a decision by
which the master was held not liable, but held not liable by both judges on the ground
that the clerk had been forbidden to do what he had done. . . . The ground on which
that case was decided was, that there was an act of trespass committed, and that it
would be monstrous to make the person against whom that trespass was committed
liable for the damage thereby caused. ... I do not wish to place my judgment on the
case of Rylands v. Fletcher, L. R. .3 H. L. 3.30." Hawkins, J., said : " I rest my
judgment entirely on the ground that it was intended that the clerks should use this
tap in the course of their employment ; that this clerk did use it in the course of his
employment, and for tlie negligent use of the tap the master is liable. . . . Here there
is a lavatory provided for the use ol the clerks, the clerk uses it, and it is as a cler)^
and because he is a clerk, that he uses it." — Ed.

233 MOEIER V. ST. PAUL, MINNEAPOLIS, ETC. RY. CO. [CHAP. IL

MORIER y. ST. PAUL, MINNEAPOLIS, & MANITOBA
RAILWAY COMPANY.

Supreme Court of Minnesota. 1884.

[31 Minn. 351.]

Appeal b}- defendant from an order of the District Court for Polk
Connt\-, Stearns, J., presiding, refusing a new trial.

Ji. B. Gahisha and -P. A. Dufour, for appellant.

JR. Beynolds, for respondent.

Mitchell, J. All the evidence in this case tends to prove that
some section men, under the charge of a section foreman, were, in the
employment of defendant, engaged in repairing its railroad near
defendant's farm, on the 21st of October, 1882. While engaged in
such work, they usually returned to their boarding-house for dinner,
but on this day, their work being at some distance, they took their din-
ner with them. At noon, when they quit work to eat, they built a fire,
or rekindled one which some other person had kindled, on defendant's
right of way, for the purpose of warming their coffee. After eating
dinner they resumed their work, negligently leaving the fire unex-
tinguished, which spread in the grass and ran on to plaintiff's land and
burned his ha3\ There is no evidence that the defendant was boarding
these men, or that it was any part of its duty to prepare or cook their
meals. Neither is there anythini,' tending to show that the defendant
either knew or authorized the kindling of a fire for any such purpose,
either on this or any other occasion. Nor is their any evidence that
it was the duty of these section men to exercise any supervision over
the right of wa}', or to extinguish fires that might be ignited on it. So
far as the evidence goes, their employment was exclusively in repairing
the railroad track.

The doctrine of the liability of the master for the wrongful acts of
his servant is predicated upon the maxims, respondeat superior and
qui facit per alium facit per se. In fact, it rests upon the doctrine
of agency. Therefore, the universal test of the master's liabihty is
whether there was authority, express or implied, for doing the act ;
that is, was it one done in the course and within the scope of the
servant's employment? If it be done in the course of and within the
scope of the employment, the master will be liable for the act, whether
negligent, fraudulent, deceitful, or an act of positive malfeasance.
Smith on Master «fe Servant, 151. But a master is not liable for
every wrong which the servant may commit during the continuance of
the employment. The liability can only occur when that which is done
is within the real or apparent scope of the master's business. It does
not arise when the servant steps outside of his emplo^-ment to do an

SECT. II.] MORIEll V. ST. PAUL, MINNEAPOLIS, ETC. KY. CO. 239

act for himself, not connected with his master's business. Beyond the
scope of his employment the servant is as much a stranger to his
master as any third person. The master is only responsible so long as
the servant can be said to be doing the act, in the doing of which he is
guilty of negligence, in the course of his employment. A master is
not responsible for an}' act or omission of his servant which is not con-,
nected with the business in which he serves him, and does not happen
in the course of his employment. And in determining whether a par-
ticular act is done in the course of the servant's employment, it is
proper first to inquire whether the servant was at the time engaged in
serving his master. If the act be done while the servant is at liberty
from the service, and pursuing his own ends exclusively, the master is
not responsible. If the servant was, at the time when the injury was
inflicted, acting for himself, and as his own master, pro tem2)ore, the
master is not liable. If the servant step aside from his master's busi-
ness, for however short a time, to do an act not connected with such
business, the relation of master and servant is for the time suspended.
Such, variously expressed, is the uniform doctrine laid down by all
authorities. 2 Thompson on Negligence, 885, 886 ; Shearman & Redf.
on Negligence, §§ 62, 63 ; Cooley on Torts, 533 et seq. ; Little Miami
R. Co. y. Wetmore, 20 Ohio St. 110 ; Storey v. Ashton, L. R. 4 Q. B.
476 ; Mitchell v. Crass weller, 13 Com. B. 237 ; McClcnaghan v. Brock,
5 Rich. (Law) 17.

It would seem to follow, as an inevitable conclusion, from this, that
on the facts of this case the act of these section men in building a fire
to warm their own dinner was in no sense an act done in the course of
and within the scope of their employment, or in the execution of de-
fendant's business. F'or the time being they had stepped aside from that
business, and in building this fire the}" were engaged exclusiveh' in their
own business, as much as the}' were when eating their dinner ; and were
for the time being their own masters, as much as when they ate their
breakfast that morning, or went to bed the night before. The fact that
the}' did it on defendant's right of way is wholly immaterial, in the
absence of any evidence that defendant knew of or authorized the act.
Had they gone upon the plaintiff's farm and built the fire, the case
would have been precisely the same. It can no more be said that this
act was done in the defendant's business, and within the scope of their
employment, than would the act of one of these men in lighting his
pipe, after eating his dinner, and carelessly throwing the burning match
into the grass. See Williams v. Jones, 3 Hurl. & C. 2.56. The fact
that the section foreman assisted in or even directed the act does not
alter the case. In doing so he was as much his own master, and doing
his own business as were the section men. Had it appeared that it
was a part of his duty to look after the premises generally, and ex-
tinguish fires that might be ignited on them, his omission to put
out the fire might possibly, within the case of Chapman v. N. Y. C.
R. Co., 33 N. Y. 369, be considered tlie negligence of the defendant.

240 SINGER MANUFACTURING CO. V. RAHN. [CHAP. II.

But nothing of the kind appears, and the burden is upon plaintiff to
prove afflrmativel}' every fact necessary to establish defendant's liability.

Order reversed, and neic trial granted}

SINGER MANUFACTURING CO. v. RAHN.

Supreme Court of the United States. 1889.
[132 U. S. 518.]

Error to the Circuit Court of the United States for the District of
Minnesota.

The original action was brought by Katie Rahn, a citizen of Minne-
sota, against the Singer Manufacturing Company, a corporation of
New Jersey, for personal injuries done to the plaintiff by carelessly
driving a horse and wagon against her when crossing a street in
Minneapolis. The complaint alleged that the driver of the wagon was
the defendant's servant and engaged in its business. The answer de-
nied this, and alleged that the driver, one Corbett, was engaged in
selling sewing-machines on commission, and not otherwise, for the
defendant. The replication denied the allegations of the answer.

At the trial before a jury, after the plaintiff had introduced evidence
to maintain the issues on her part, the defendant put in evidence the
contract between itself and Corbett, headed "Canvasser's Salary and
Commission Contract," the material provisions of which were as
follows : —

" 1st. The party of the first part agrees to pay unto the party of
the second part, for his services in selling and leasing the Singer sew-
ing-machines, five dollars for each and every acceptable sale of a new
machine sold by him ; and in addition to said five dollars a further sura
of ten per cent of the gross price realized for said sales so made shall
be paid to said second party, which, in addition to the five dollars on
each acceptable sale, shall be deemed a selling commission.

" 2d. The part}' of the first part shall pay unto the second party,
for his further services, a collecting commission of ten per cent on the
amounts or balances due from customers having purchased machines
from him, pa^'able as the cash shall be collected and paid over to the
said first part}' or its authorized representative at Minneapolis ; and
the said per centum so paid shall be in full for the services of said
second party in collecting or other service rendered to date thereof."

" 7th. The said first party agrees to furnish a wagon, and any
damage to said wagon through negligence shall be at the cost and ex-
pense of said second party ; and the said second party agrees to fur-

1 See Williams v. Jones, 3 H. & C. 256 (1864), s. c. in Excheqiuer Chamber, 3 H. &
C 602 (1865). — Ed.

SECT. II.] SINGER MANUFACTUKIXG CO. V. RAIIN. . 241

nisli a horse and liurncss, to be used exclusively in canvassing for the
sale of said machines and the general prosecution of said business ;
and said second part}' agrees to give his exclusive time and best ener-
gies to said business, and paj' all expenses attending same.

"8th, The said second partv agrees to employ himself under the
direction of the said Singer Manufacturing Company, and under such
rules and instructions as it or its manager at Minneapolis shall pre-
scribe, and in all respects to comport himself to the best interests of
the business of the said first party, and to neither sign nor to make
use of the name of the said company in any manner whereby the pub-
lie or any individual may be led to believe that the said company is
responsible for his actions, said party's power being simply to make
sales and turn over the proceeds to the said first party. If any special
acts are required of said second part}-, the power to perform the same
will be specially' delegated."

" 10th. It is further agreed that if said second party sells an}- other
than the machines furnished to hira by said first party, it shall work a
forfeiture of any commissions that accrue under this agreement, if
violated prior to the termination of the same."

'• 12th. This agreement may be terminated by the first party at any
time, and by said second party by giving first party ten days' notice in
writing."

The defendant requested the court to instruct the jury "that the
contract under which Corbett, the driver of the horse causing the acci-
dent, was operating made him an independent contractor, and the de-
fendant could not be liable for any damage done through his negligence,
if he was negligent." The court declined to give the instruction re-
quested, and instructed the jury that the contract established the rela-
tion of servant and master between Corbett and the defendant, and
that the defendant was answerable for Corbett's negligence while
engaged in its service.

The jury returned a verdict for the plaintiff in the sum of 610,000,
upon which judgment was rendered ; and the defendant tendered a bill
of exceptions, and sued out this writ of error.

Mr. Grosveyior Lowrey and Mr. Joseph S. Auerbach, for plaintiff
in error.

Mr. W. P. Clottgh, Mr. John W. Willis, and Mr. Charles A. Ehert^
for defendant in error.

Mr. Justice Gray, after stating the case as above reported, deliv-
ered the opinion of the court.

The general rules that must govern this case are undisputed, and
the only controversy is as to their application to the contract between
the defendant company and Corbett, the driver, by whose negligence
the plaintiff was injured.

A master is liable to third persons injured by negligent acts done b}'
his servant in the course of his employment, although the master did
not authorize or know of the servant's act or neglect, or even if he dia-
ls

242 . SINGER MANUFACTURING GO. V. RAHN. [CHAP. II.

approved or forbade it. Philadelphia & Reading Railroad v. Derby,
14 How. 468, 486. And the relation of master and servant exists
whenever the employer retains the right to direct the manner in which
the business shall be done, as well as the result to be accomplished, or
in other words " not only wliat shall be done, but how it shall be done."
Railroad Co. v. Hanning, 15 Wall. 649, 656.

The contract between the defendant and Corbett, upon the construc-
tion and effect of which this case turns, is entitled " Canvasser's
Salary and Commission Contract." The compensation to be paid by
tlie company to Corbett, for selling its machines, consisting of " a sell-
ing commission " on tlie price of machines sold by him, and " a collect-
ing commission" on the sums collected of the purchasers, is uniformly
and repeatedly spoken of as made for his " services." The company may
discharge him by terminating the contract at any time, whereas he can
terminate it only upon ten days' notice. The company is to furnish
him with a wagon ; and the horse and harness to be furnished b}' him
are " to be used exclusivelj- in canvassing for the sale of said machines
and the general prosecution of said business."

But what is more significant, Corbett " agrees to give his exclusive
time and best energies to said business," and is to forfeit all his com-
missions under the contract, if while it is in force he sells any machines
other than those furnislied to him b}' the company' ; and he further
" agrees to employ himself under the direction of the said Singer
Manufacturing Compan}', and under such rules and instructions as it
or its manager at Minneapolis shall prescribe."

In short, Corbett, for the commissions to be paid him, agrees to give
his whole time and services to the business of the compan\' ; and the
company reserves to itself the right of prescribing and regulating not
only what business lie shall do, but the manner in which he shall do it ;
and might, if it saw fit, instruct him what route to take, or even at
what speed to drive.

The provision of the contract, that Corbett shall not use the name of
the company in an}' manner whereby the public or an}' individual may
be led to believe that it is responsible for his actions does not and can-
not affect its responsibility to third persons injured b}' his negligence
in the course of his employment.

The Circuit Court therefore rightly held that Corbett was the defend-
ant's servant, for whose negligence in the course of his employment,
the defendant was responsible to the plaintiff. Railroad Co. v. ITan-
ning, above cited ; Linnehan v. Rollins, 137 Mass. 123 ; Regina v.
Turner, 11 Cox Crim. Cas. 551.

Judgment affirmed}

1 See Pickens v. Diecker, 21 Ohio St. 212 (1871). — Ed.

SECT. II.] STAPLES V. SCHMID. 243

STAPLES V. SCHMID.
Supreme Court of Rhode Island. 1893.

[26 Atl. R. 193.]

Action by Phoebe A. Staples against John M. Schniid and another
to recover I'or her wrongful arrest, caused by defendants. There was
judgment for plaintiff, and defendants petition for a new trial. New
trial granted, provided plaintiff refused to remit all damages in excess
of $1U0.

George J. West, for plaintiff.

Frederick Jiueckert, for defendants.

Douglas, J. The jury have substantially found in this case that
the defendants' salesman, erroneously suspecting the plaintiff of having
stolen a package of spoons from the store, which was in his charge,
detained her, sent for a police officer, and caused her to be sent to the
police station, and there searched, and they assessed the damages to
the plaintiff in the sum ofS750. The defendants bring their petition
for a new trial, alleging that the verdict is against the evidence ; that,
if the facts were as found, the defendants are not liable; and that the
damages are excessive. The questions of law involved are raised by
exceptions to the refusal of the presiding judge to rule as requested by
the defendants, and by exceptions to the charge as given. The propo-
sition upon which these exceptions are based, and wliich the defendants
contend is established b\- the cases he cites, is that, as matter of law,
it is not within the scope of the employment of a salesman left in
charge of a store to cause the arrest and search of a person whom he
believes to have stolen property from his custod}-. The general rule
defining the liability of a master for the acts of his servant is thus laid
down in Wood on Master and Servant (section 279) : " For all acts
done by the servant under the express orders or direction of the mas-
ter, as well as for all acts done in the execution of his master's bus' ■
ness within the scope of his emplovment, the master is responsible;
but when tlie act is not within the scope of his employment, or in obe-
dience to the master's orders, it is the act of the servant, and not of
the master, and the servant alone is responsible therefor." The prin-
ciple of the rule is stated by Andrews, J., in Rounds v. Railroad Co.>
64N. Y. 129.1 . . .

It is not contended that this general rule is not settled by reason
and authority, but the defendants say that the acts here complained of
were not within the scope of their agent's employment. It is obvious
that in most cases the question is one of fact. What are the limita-
tions of an agent's or a servant's authority depends generally upon the
things he is to do, the object he is set to accomplish, the degree of dis-

1 A quotation from Rounds v. D. L. & W. Railroad Co., avte, pp. 218, 220-221, la
omitted. — Ed.

244 STAPLES V. SCHMID. [CHAP. IL

cretion wbich the position where he is placed and the exigencies of the
occasion reasonably call for. These are matters of common knowledge
when they pertain to the ordinary occupations of men, matters of fact,
as well known to the jur}' as to the court, or inferences of fact from
well-known or proven facts, which it is as much the province of the
jur}- to draw as it is the province of the court to carry out a principle
of law to particular deductions. It is only when the act under consid-
eration is elearl}- foreign to the scope of the employment that the court
can exclude it as a matter of law. Opinion of Deuman, J., for a
majority of the court in Burns v. Poulson, 42 Law J. C. P. 302, L. R.
8 C. P. 563. " What is or is not within the course of the servant's
employment or the course of his authorit}' is, within certain limits, a
question of fact ; and the decisions of the courts on the subject are not
altogether consistent, or easily to be reconciled." Add. Torts (6th ed.
by H. G. Wood), * 107. Some of these inconsistencies have evidently
arisen from attempts to ascertain sharp legal distinctions where the
cases presented legitimately only questions of fact. Bearing in mind
these considerations, we may now consider the cases cited by counsel
as settling principles by which this case should be decided.

Two principles seem to be recognized bj- the English cases cited :
First, that, when a servant not speciall}' appointed to protect property
arrests a person whom he supposes to have stolen his master's goods,
the servant must be presumed to have acted in pursuance of his duty
as a good citizen, and not in the scope of his employment as a servant.
This was strenuously urged by counsel in Edwards v. Railway Co., L.
R. 5 C. P. 445, and was adopted by the court as the rule for that case.
We doubt its cogency as a rule of universal application. The arrest of
a thief is not an ordinary necessity- of commercial business. An at-
tempt to steal is an extraordinar}' event which puts the guardian of the
property- to an instantaneous election of means to frustrate it. A clerk
or salesman in such a case may ex necessitate be invested with duties
and powers which are more germane to the scope of employment of an
officer. The opinions of the judges, however, are instructive in this
connection as showing assent to the converse of the proposition, which
is nearer the case at bar. Keating, J. (page 448), saA-s : '' If there is
any evidence to 6x the defendants, it must be upon an implied author-
ity resulting from Holmes' position as their servant, and that raises
broadly, the question whether a person in the position of Holmes has
implied authority to give into custod}' an}' one whom he suspects to
have stolen his master's goods. I think there is no such implied
authority. It is admitted that the point is new, and that there is no
case in which such an authorit}' has been assumed to exist. . . . There
seems no grounds for saying that what was done was in the ordinary
course of the business of the company, nor that it was for their benefit,
except in so far as it is for the benefit of all the queen's subjects that a
criminal should be convicted. If Holmes acted from a sense of the
duty which rests on every one to give in charge a person whom he

SECT. II.] STAPLES V. SCHMID. 245

thinks is committing u felony, his conduct would in no wjjy be con-
nected with the defendants." Montague Smith, J., saj-s: " No doubt,
if in furtherance of the particular business of the company it is neces-
sary to arrest a person, the servants of the company have an implied
authorit}' to do it. . . . Here, however, the cause of the arrest was not
at all connected with the company's business, and it cannot, I think,
be presumed that the company- gave authorit}^ to their servants gen-
erally to apprehend any person whom the servants think is committing
a felony, even though on the company's property." Brett, J., " It is
not enough that the act should be for the benefit of the master, but it
must be in the ordinarj- course of business, in order that an authority
to do it may be implied. In the case of a person being arrested for
breaking the company's by-laws, it may well be said that this is the
way in which the company- carr}- on their business ; and similarly if an
officer be appointed expressl3' to watch the company's property. I
should think, if he took an innocent person into custody- on the charge
of stealing, it might well be said that the company were liable." In
Allen V. Railway Co., L. R. 6 Q. B. 65, a booking clerk for the railway-
company caused the arrest of a person who had apparentl}- attempted
to rob the till in his charge. The attempt was unsuccessful, and had
ceased at the time of the arrest. It was held that such an arrest was
not in the scope of the clerk's emplo3ment, its object being the punish-
ment of the offence, not the protection of the property, but, in the
course of his opinion, Blackburn, J., says (page 68) : " I am inclined
to think that if a man in charge of a till were to find that a person was
attempting to rob it, and he could not prevent him from stealing the
propert}' otherwise than by taking him into custody, the person in
charge of the till might have an implied authority to arrest the offender ;
or if the clerk had reason to believe that the money had been actuall}'
stolen, and he could get it back b3- taking the thief into custod}-, and
he took him into custody with a view of recovering the propertv taken
away, it might be that that also might be within the authority' of a per-
son in charge of a till. I am not, however, prepared to pronounce a
a decided opinion on these supposed cases. The present case is alto-
gether different. There is a marked distinction between an act done
for the purpose of protecting the property by preventing a felon}-, or of
recovering it back, and an act done for the purpose of punishing the
offender for that which has already been done." Second, that it cannot
be inferred as matter of law that a master has authorized his servant
to do an act which he could not lawfull}- do himself in tho circum-
stances supposed by the servant to exist. In Poulton v. Railwa}- Co.,
L. R. 2 Q. B. 534, this proposition is thus expressed by Mr. Justice
Shee (page 541): "An authority cannot be implied to have been
given to a servant to do an act which, if his master were on the spot,
the master would not be justified in doing on the assumption of a par-
ticular state of facts." The servant in this case caused the arrest of a
passenger because he supposed the freight due for transportation of the

246 STAPLES V. scnMiD. [chap. II.

passenger's horse had not been paid. If the supposition had been true,
the arrest would have been unlawful, and there could be no implied
authority, because the limit of the servant's powers was defined by act
of parliament. In the same case, Blackburn, J., says (page 538) :
" There can be no question that where a railway company, or any
other body, have upon the spot a person acting as their agent, that
is evidence to go to the jury that that person has authority to do all
those things on their behalf which are right and proper in the exi-
gencies of their business, — all such things, as somebody must make
up his mind, on behalf of the company, whether they should be done
or not ; and the fact that the company are absent, and the person is
there to manage their affairs, is prima facie evidence that he was clothed
with authority to do all that was right and proper ; and if he happens
to make a mistake, or commit an excess, while acting within the scope
of his authority, his employers are responsible for it."

In applying the principle of this case, its limitations must not be
forgotten.

1. It is a rule for the court, in the absence of evidence bearing upon
the issue. It does not prevent a logical inference of fact from proven
facts, even when that inference is that the master has directed a wrong.
The court of appeals of New York, in Lynch v. Railroad Co., 90 N. Y.
77, found that the jury were justified in believing from the evidence
that the gate-keeper was expected hy the company to detain persons
who refused to present tickets or to pay their fares. The scope of the
employment being thus ascertained, they say (page 86) : " In any-
thing that he did he did not act for any purpose of his own, but to
discharge what he believed to be his duty to bis principal. It matters
not that he exceeded the powers conferred upon him by his principal,
and that he did an act which the principal was not authorized to do, so
long as he acted in the line of his duty, or, being engaged in the ser-
vice of the defendant, attempted to perform a duty pertaining, or
which he believed to pertain, to that service. He detained the plaintiff
at the [railroad] station, caused his arrest, went with the police officer
to the police station, there made a complaint, and then the next morn-
ing appeared before the police magistrate, and renewed his complaint.
These were successive steps taken bj* the gate-keeper to enforce the
payment of the fare b}' the plaintiff, or to punish him for refusing to
pay it, and for all that he did the defendant is responsible." See, also,
Smith V. Webster, 23 Mich. 298 ; Barden v. Felch, 109 Mass. 154.

2. Neither does this principle forbid the court to imply the responsi-
bility^ of the master for the wrongful or excessive exercise of the ser-
vant's discretion in a case where the act done would have been lawful
if the supposed circumstances had been real. This limitation, care-
fully made by Mr. Justice Shee, seems to have been ignored in the
case of Mali v. Lord, 39 N. Y. 381, which is cited by counsel as deci-
sive of the case at bar. The opinion delivered by Judge Grover, rests
the case upon the reasoning of Poulton v. Railway Co., but makes, as

SECT. II.] STAPLES V. SCHMID. 247

we think, an unwarranted extension of it. The court say (page 384) ;
"It cannot be presumed that a master, by intrusting his servant with
his property, and conferring power upon him to transact his business,
thereby authorizes him to do any act for its protection that he could
not lawfully do himself if present. The master would not, if present, be
justified in arresting, detaining, and searching a person upon suspicion,
however strong, of having stolen his goods, and secreted them upon
his person. The authority of the superintendent could not, therefore,
be implied from his employment." It is quite true that the master
would have had no right to arrest and search an innocent person ;
but it is equal]}' true that he would have had the right to detain a
thief, and to recapture his property from him. The case, therefore,
was one where the act, aside from any excessive force, might be law-
ful or unlawful according to whether the supposed circumstances were
real or unreal. The servant was left in a situation where he was
obliged to determine the fact, and where his duty to his master depended
upon his decision. The decision was his, as the substitute of the mas-
ter, and the act was one intended by him to be for his master's benefit,
and which his duty required if the facts were as supposed ; hence, as
to third persons, it was the master's act. The criterion of the mas-
ter's liabilit.y can never be whether the act would have been lawful for
the master to have done in the circumstances as the}- actually existed.
It remains to apply these principles to the case at bar. The servant
in this case was left with an assistant in charge of his master's store.
His ordinar}- duties undoubtedly were to show goods, and to sell them
to customers. It was, however, equally his duty to protect his mas-
ter's property from pilfering. Tlie acts complained of were evidentlv
done with that intention. The arrest was for the purpose of searching
for and recovering the master's property, not with the object of pun-
ishing crime against the public. The establishment was not a railroad
station where the multiplicit}' of employees confines each one to a nar-
row round of duties, where special officers are stationed to preserve
order and detain criminals ; nor a large diy goods emporium, where
detectives and watchmen are employed to guard against thieves. The
servant here was salesman and custodian in one. Whatever the mas-
ter might do in the protection of liis property he expected his servant
to do in his absence. If the servant had seen the plaintiff take up and
secrete the package of spoons in question, and had allowed her to walk
away with them unmolested, could an}' one say that he had not been
derelict in his duty to his master? If, in the performance of this duty,
he mistook the occasion for it, or exceeded his powers, or employed an
improper degree of compulsion, the mistake and the excess must be
answered for by the master. We conclude, therefore, that the direc-
tions asked by the defendants were rightly refused, and that the charge
correctly stated the law of the case. We are not convinced by an
examination of the testimony that the preponderance of evidence is so
strongly against the verdict as to warrant us in disturbing it. If the

248 BOWLER V. O'CONNELL. [CHAP. 11.

jur}' believed the plaintiff instead of the clerk and the police officer,
they were justified in finding the verdict of guilt}'. The damages, how-
ever, which were awarded are grossly excessive as compensation for
the wrong which the plaintiff suffered. They must have been estimated
on the supposition that exemplary or punitive damages were allowable
in a case of this kind. The law upon this point was settled at an early
da}' by this court in the case of Hagan v. Railroad Co., 3 R. I. 88,
where the late Chief Justice Brayton clearly shows that, unless the
principal participates in or approves the wrong of his servant, he can
be held only for the actual damages occasioned thereby. The opinion
of Judge Brayton is quoted with approval by the supreme court of the
United States in the recent case of Lake Shore & M. S. Railway Co.
V. Prentice, 147 U. S. 101. For this reason we think a new trial should
be granted, unless the plain tiif will consent to remit the damages in
excess of the sum of $100.^

BOWLER V. O'CONNELL.
Supreme Judicial Court of Massachusetts. 1894.

[162 Mass. 319].

Tort, for personal injuries occasioned to the plaintiff by being
kicked by a colt belonging to the defendants. At the trial in the
Superior Court, before Mason, C. J., the jury returned a verdict for
the plaintiflT; and the defendants alleged exceptions. The material
facts appear in the opinion.

O. D. Robinson, ( T. B. O'Bonnell with him) , for the defendants.

W. H. Brooks, for the plaintiff.

Allen, J. In determining the legal question which is presented,
we must assume that the jury adopted the plaintiff's view as to the
circumstances attending the accident, and the testimon}' in contradic-
tion thereof may be disregarded. With reference to this aspect of the
case, the defendants asked an instruction to the jury that they were
not responsible for the acts of Frank O'Connell, who was thirteen
years of age and the son of one of the defendants, in his invitation to
the plaintiff to take a ride upon the colt. The jury, however, were
instructed that, if Frank O'Connell was the servant of the defendants
in leading the colt from the stable to the defendants' yard, and while
so leading the colt the plaintiff, who was between five and six years of
age, was invited b}' Frank to ride, and was injured as he was going

1 As to causins: arrest, compare Goff v. Great Northern Railway Co., 3 E. & E.
672 (1861) ; Palmeri v. Manhattan Railway Co., 133 N. Y. 261 (1892) ; Central Rail-
way Co. V. Brewer, 78 Md. 394 (1894). See also Ramsden v. B. & A. Railroad Co.,
104 Mass. 117 (1870). — Ed.

SECT. II.] BOWLER V. O'CONNELL. 249

forward to accept the invitation, it would be competent for the jury
to find that such invitation was within the scope of the employment of
Frank ; and again, that if, while Frank was leading the colt along or
across the sidewalk or in the ^ard of the defencUuils, as the servant of
the defendants, and, while so leading the colt in ihe line of his duty,
he of his own accord, and witliout the knowledge or authority of or
direction from the defendants, invited the plaintiff to ride upon the
horse, and while the plaintiff was attempting to go forward to accept
the invitation of Frank he was injured, it was competent for the jury
to hnd the action of Frank to be negligent, and such negligence to be
within the scope of his employment.

The correctness of these instructions is to be determined witli
reference to the testimou}' in the case. The colt, it would seem, was
about two years and nine months old. It was not harnessed into a
wagon, but the boy Frank, who must be assumed to have been in the
defendants' employment, was leading it from the watering-tub to his
stall, or to some other place. The defendants were contractors and
excavators, and owned many teams. There was nothing to show that
it was any part of their business, or that it was their habit or custom,
to furnish horses or colts to ride, or to allow boys to ride upon them,
or that they in any way ever authorized or permitted Frank to do this.
Under this state of things, we are unable to see how the invitation b}'
Frank to the plaintitf to ride upon the colt, although given while
Frank was engaged in his employment, can be considered to be an act
done in the course of such employment, or for the purpose of doing
the business of his masters. The true test of liability on the part of
the defendants is this. Was the invitation given in the course of
doing their work, or for the purpose of accomplishing it? Was this
act done for the purpose, or as a means, of doing what Frank was
employed to do? If not, then in respect to that act he was not in the
course of the defendants' business.

An act done by a servant while engaged in his master's work,
but not done as a means or for the purpose of performing that work,
is not to be deemed the act of the master. And under this rule, in
view of the testimony, the defendants were not responsible for the
consequences of Frank's invitation to the plaintiff to ride upon the
colt. Howe V. Newmarch, 12 Allen, 49; Hawks v. Charleraont, 107
Mass. 414; Hawes v. Knowles, 114 Mass. 518; Levi v. Brooks, 121
Mass. 501; George v. Gobey, 128 Mass. 289, 290; Wallace v.
Merrimack River Navigation & Express Co., 134 Mass. 95 ; Walton v.
New York Central Sleeping Car Co., 139 Mass. 556 ; Young v. South
Boston Ice Co., 150 Mass. 527 ; Mitchell v. Crassweller, 13 C. B. 237 ;
Croft V. Alison, 4 B. »Sc Aid. 590 ; Limpus v. London General Omnibus
Co., 1 H. & C. 526 ; Barwick v. English Joint Stock Bank, L. R. 2 Ex.
259, 265 ; Storey v. Ashton, L. R. 4 Q. B. 476 ; British Mutual Bank-
ing Co. V. Charnwood Forest Railway, 18 Q. B. D. 714; Snyder v.
Hannibal & St. Joseph Railroad, 60 Mo. 413, 419 ; Morier v. St.

250 ILLINOIS CENTRAL RAILROAD CO. V. LATHAM. [CHAP. IL

Paul, Minneapolis, & Manitoba Railway, 31 Minn. 351 ; Davis v.
Houghtellin, 33 Neb. 582.

There ma}' be cases where injuries result from accepting unauthorized
invitations to ride which do not fall within the above rule, and are to be
distinguished. Such cases may be found in the books, and need not
be considered here, the circumstances being different.

Under the circumstances disclosed in the present case, it was not
competent for the jur}' to find that the invitation given to the plaintiff
to ride was within the scope of Frank's employment, and for this
reason there must be a new trial. Exceptions sustained.

ILLINOIS CENTRAL RAILROAD CO. v. LATHAM.
Supreme Court of Mississippi. 1894.

[16 So. R. 757.]

Appeal from Circuit Court, Panola county : Eugene Johnson, Judge.

" To be officially reported.'-

Action by Lincoln Latham against the Illinois Central Railroad
Company. From a judgment for plaintiff, defendant appeals. Re-
versed.

Mayes <b Harris, for appellant.

G. D. Shauds, for appellee.

Whitfield, J. Accepting the plaintiffs testimony as true, it ap-
pears that he was riding on top of the coach to avoid the payment
of his fare, and did not go back to the caboose because he feared
the conductor would say something. He got on at Memphis to go
to Sardis. The fare was $1.50. The brakeman did not demand
$1.50, but 50 cents. He did not eject him when the demand for 50
cents was first made and declined, and not until the transit was
nearly terminated, Under the rules introduced by plaintiff, and as
explained by Homer Williams, a witness for plaintiff, it would have
been the duty of the brakeman to report to the conductor the pres-
ence of plaintiff on the train, and acted, as to his ejection, under the
conductor's orders. The brakeman made no report to the conductor
whatever, but acted independently of him. Failing to get the mone}',
— the 50 cents, — he cursed the plaintiff, and shoved him off the
moving train. Surel}', in no just and reasonable view can it be held
that in the acts of the brakeman, thus done, was he acting in his
master's business, or with intent to perform any dut}' due to the mas-
ter. He was not demanding fare, but mone}' to put in his pocket.
He did not eject him under the orders of the conductor, nor when,
aside from any orders of the conductor, he first discovered him, nor
at the next station. He was plainly attempting to extort money for

SECT. II.] McGILVRAY V. WEST END STREET RAILWAY CO. 251

his private use. Wc are not prepared to bold that it may not be
the implied dut}' of a brakeman to eject trespassers, on the idea
clearl}' put by Judge Andrews in Hoffman v. Railroad Co., 87 N. Y.
28, that "the implied authority in such a case is an inference from
the nature of the business, and its actual daily exercise according to
common observation and experience," — a statement of the law copied
literally and approved in Railroad Co. v. Kelley (Kan.), 14 Pac. 173.
It is true the contrary- is held in Bess v. Railroad Co., 35 W. Va.
492 ; 14 S. E. 234, and possibly in other cases ; but what may be
the better reason is not now before us, and we leave this open, as
not necessary now to decide. The question here is whether the brake-
man, in doing what he did, as he did it, was acting for the corapanj-,
or in the accomplishment solely of his own independent, wilful, mali-
cious, and wicked purposes ; using his authority to eject trespassers,
if an}- there were, as a mere cover under which to extort money from
appellee, not for fare, but for his pocket. The case in 14 Pac. 173
is clearly a case where the injured boj' was ejected from the train as
a trespasser, simply to get him off, as being improperh' on the train,
in execution of what the court held the implied dut}' of the brake-
man to eject trespassers. Manifestly, in that case the brakeman
acted in discharge of what he deemed a duty to the compan}'. There
was no hint in that case of anj' act done b}' the brakeman for bis own
private benefit, or to gratif)' even private malice. The true rule is
thus clearl}' announced in Rounds r. Railroad Co., 64 N. Y., at page
136.^ . . . We approve this as an admirable statement of the law.
It is true that ordinarily the question whether the brakeman's act was
within the line of his dutj', done for the master and in his business,
is one of fact, for the jur}', since ordinarily there is conflict in the
evidence; but in this case, on the plaintiff's own testimon}', the court
should have granted the peremptorv charge, following the cases of
Railwa}' Co. v. McAfee, 71 Miss. 70, 14 South. 260, and Railroad
Co. V. Harris, 71 Miss. 74, 14 South. 263.

Judgment reversed and cause remanded.

McGILVRAY v. WEST END STREET RAILWAY COM-
PANY.

Supreme Judicial Court op Massachusetts. 1895.

[41 N. E. R. 116.]

Appeal from Superior Court, Suffolk county ; John Hopkins, Judge.

Action by Daniel McGilvray against the West End Street Railway

Company for an assault committed by one of defendant's employees.

1 The passage appears at pp. 222-223, ante. — Ed.

252 McGILVRAY V. WEST END STRE;ET RAILWAY. [CHAP. 11.

The court ruled that phiiutitf had no evidence on which to go to the
jur}', and he excepts. Exceptions overruled.

Plaintiff testified that while he was standing in the street with one
foot on the sidewalk and the other on the step to defendant's car-house,
waiting for a car, he complained to the contluctor of the car which had
just been switched into the car-house, because the conductor had not
told him that the car was not going through, and that the conductor,
after saying that plaintiff had not asked him if it was going further,
and after certain other conversation, assaulted him.

L. 31. Child, for plaintiff.

Win. B. Sproiit, for defendant.

Barker, J. If we assume in favor of the plaintiff that, upon the
evidence, the jury might find that he had paid his fare through to Pros-
pect Street, and that, in addition to his right to remain unmolested
upon the public street, he had the right, upon leaving tlie car which
had been switched into the stable, to inquire of the conductor why the
contract to carr}' him to Prospect Street was not carried out, and to
enter the stable to ascertain when and how he could be carried to his
destination, j-et the verdict for the defendant was rightly ordered. The
onl}' reasonable inference to be drawn from the whole evidence is that
while waiting in the public street to take one of the defendant's cars,
he saw 'fit to engage in an altercation with a person who was in fact
one of the defendant's servants, and received from him an assault
which was not made for any purpose which the jurj' could find to be
part of the defendant's business. The defendant had no control over
the place where the plaintiff was, and no duty to protect the plaintiff
there from any assaults, although it would be responsible to him for
assaults committed upon him there, as elsewhere, by its servants in the
scope of their employment. The suggestion that it could be found
within the scope of that employment for a servant to punish him for
asserting his rights against the defendant is of course untenable ; nor
is there sufficient ground in the suggestion that the assault was for the
purpose of putting him out of the defendant's premises to warrant sub-
mitting the case to a jury. Exceptions overruled.

SECT. III.] UAZAKD V. TREADWELL. 253

SECTION IIL

Contracts }

PATERSON V. TASH.
Nisi Pkius. 1742-43.

£2 IStr. 1178.]

It was held by Lee, C. J., that though a factor has power to sell,
and thereby bind his principal, yet he cannot bind or artect the prop-
erty of the goods by pledging them as a security for his own debt,
though there is the formality of a bill of parcels and a receipt.

And the jury found accordingly.*

HAZARD V. TREADWELL.
Nisi Prius, Pkatt, C. J., 1768.

[1 Str. 506.J

The defendant, who was a considerable dealer in iron, and known to
the plaintiff as such, though they had never dealt together before, sent
a waterman to the plaintiff for iron on trust, and paid for it afterwards.

1 Cases on undisclosed principals are found in Chapter V. — Ed.

2 " It is manifest that when a man is dealing with other people's goods, the differ-
ence between an authority to sell, and an authority to mortgage or pledge, is one
which may go to the root of all the motives and purposes of the transaction. The
object of a person who has goods to sell is to turn them into money, but when those
goods are deposited bv way of security for money borrowed it is a transaction of a
totally different character. If the owner of the goods does not get the money, his
object and purpose are simply defeated ; and if on the other hand, he does get the
money, a different object and different purpose are substituted for the first, namely,
that of borrowing money and contracting the relation of debtor with a creditor, while
retaining a redeemable title to the goods, instead of exchanging the title to the goods
for a title, unaccompanied by any indebtedness, to their full equivalent in money."
Per Lord Selbokne, iu City Bank v. Barrow, 5 App. Cas. 664, 670 (H. L., 1880).

In England the doctrine of the principal case has been largely abrogated by the
Factors Acts. See 4 Geo. TV. c. 8-3 (182.3) ; 6 Geo. IV. c. 94 (1825) ; 5 & 6 Vict. c. 39
(1842) ; 40 & 41 Vict. c. 39 (1877) ; .52 & .53 Vict. c. 45 (1889). And so in many of
the United States. For examples of the American statutes as to factors and other
persons entrusted with possession or wnth bills of lading, warehouse receipts, and the
like, see Public General Laws of Maryland (1888), art. 2 (from Laws of 1825, c. 182,
and of 1849, c. 293); Revi.sed Statutes of New York (eighth ed.) 2517-2518 (from
Laws of 1830, c. 179) ; Brightly's Purdon's Digest of Penn.sylvania Statutes (twelfth
ed.), 867 (from Act of Apr. 14^ 1834) ; Revised Statutes of Ohio (1880), sees. 3214-
3220 (from Laws of 1844, p. 49) ; Public Statutes of Massachusetts (1882), c. 71 (from
Statutes of 1845. c. 193). — Ed.

254 FENN V. HARRISON. [CHAP. IL

He sent the same waterman a second time with ready money, who re-
ceived the goods, but did not pay for them ; and the Chief Justice ruled
the sending him upon trust the first time and paying for the goods, was
giving him credit, so as to charge the defendant upon the second
contract.

FENN V. HARRISON.
King's Bench, 17'J0.

[3 T. R. 757.]

On a motion for a new trial, the facts appeared to be these : This
was an action for money lent, mone}' paid hy the plaintiffs to the use of
the defendants, and money had and received b3- the defendants to the
use of the plaintiffs. A bill of exchange was drawn by Livesay and
Co. on Gibson and Johnson in favor of one Norman, which came by
indorsement to the defendants ; who, being desirous of getting it dis-
counted, employed Francis Huet for that purpose, telling him to carry
it to market and get cash for it, but that they would not indorse it.
F. Huet applied to his brother James Huet to get the bill discounted,
informing him that it was the defendants' bill, and that though they did
not choose to indorse it, yet he added (as a reason of his own) that, as
their number was on the bill, it was equivalent to an indorsement ; and
that he (F. Huet) would indemnif)- him if he indorsed the bill. On an
application b}' James Huet to the plaintiffs, and on his indorsing the
bill, without which indorsement he could not have got the bill discounted,
the plaintiffs discounted it ; chiefly relying on the credit of Gibson and
Johnson, for at that time the}' did not know that the defendants had
had an}' concern with the bill. Afterwards however, on the failure of
Gibson and Johnson, the plaintiffs, having heard that the bill had
passed through the defendants' hands, applied to them for payment,
who at first refused, but afterwards promised to take it up ; and, on
their not doing so, this action was brought to recover the amount of it.
Lord Kenyon, before whom the cause was tried, after reporting the
above facts, said that he had told the jur}' that, if the}' were of opinion
that James Huet had made himself answerable to the plaintiffs, as agent
for the defendants, that was a sufficient consideration for the defend-
ants' promise ; and that they were of that opinion, and found a verdict^
for the plaintiffs.

A rule having been obtained to show cause why the verdict should
not be set aside, and another trial granted, on the ground that this was
nudum pactum ;

^ This was a second verdict : the plaintiffs had obtained a former verdict ; hut the
Court granted a new trial (without much discussion) for the purpose of having the
eabject better considered. — Rep.

SECT. III.] FKNN V. HAKKISON. 255

Bmrcrofl and Erskine now showed cause against it ; contending
that the promise made by the defendants was binding on them, whetlier
considered as given by them when under a moral obligation to pay, or
as having received a legal and valuable consideration tor it. As to the
first ; it cannot be denied but that so much money belonging to the
plaintiffs has got into the pockets of the defendants, for which they have
received no consideration. This therefore was a sum which in conscience
and morality the defendants were bound to pay to the plaintiffs ; and
that alone, though there were strictly no legal debt, is a sufficient con-
sideration on which to raise a promise. But, 'idlj', there was also a
legal and valuable consideration ; because the plaintiffs had a right of
action against James lluet, who might have resorted to the defendants
for an indemnity for an act done as their agent. Yox as James Huet,
in putting his indorsement on the bill, acted by the direction of his
brother, who was the avowed agent of the defendants, even admitting
that F. Huet exceeded his authority, yet as he acted within the scope
of his employment, which was to raise money on the bill for the defend-
ants, they must be bound by his acts : and the}' have a remedy over
against him. But it does not appear that F. Huet did exceed his au-
thority' ; for the only restraint imposed on him by the defendants was
not to indorse in their names, because they did not wish that their
names should appear on the bill, but they did not mean to restrain him
from indorsing the bill, or anj' other person for him, provided the money
could not be raised on any other terms ; and that turned out to be the
case. And whatever doubt there might have been originally whether
either of these agents had exceeded his authority, yet the defendants
by their subsequent promise have recognized and adopted the acts
of their agent, and made themselves immediately answerable to the
plaintiffs.

Mingay and Zmc, in support of the rule, insisted that the defend-
ants were under no moral or legal obligation when they made the
promise in question, and consequently that it was not binding. The
argument of the plaintiffs proceeds on a false foundation : for it sup-
poses that Francis Huet was not circumscribed in his authority ; whereas
the very reverse of that appears from the facts reported. The substance
of the authority given by the defendants to F. Huet was that he should
sell the bill ; for that they would not make themselves liable either on
the bill by their indorsement, or by any other circuitous mode. The
very circumstance of their refusing to indorse the bill negatives any idea
that they meant to make themselves responsible through the indorse-
ment of any other person for them. As therefore the agent exceeded
his authority, the principals (the defendants) are not bound, any more
than the owner of a horse would be by the warranty of his servant,
whom he authorized to sell it with an express direction not to warrant.^
Neither were the defendants under any moral obligation to pay ; for the

1 Vide Godb. 361, 2 Rol. Kep. 270, and 1 Rol. Abr. 95, V. pi. 1.— Rep.

256 FENN V. HARRISON. [CHAP. 11.

plaintiffs took the bill on the credit of Gibson and Johnson, and of J.
Huet ; and at that time they did not even know that the bill had passed
through the hands of the defendants. Therefore the plaintiffs have no
more equit}- than the defendants.

Lord Kenyon, C. J. This is a question of great nicet}' ; and during
the trial of the cause I entertained considerable doubts upon the subject,
and even at this moment the utmost that I can say is that the leaning
of my mind is in favor of the verdict. It is extremel}' clear tliat, if the
holder of a bill of exchange send it to market without indorsing his
name upon it, neither morality or the laws of this country will compel
him to refund the money, for which he has sold it, if he did not know
at the time that it was not a good bill. If he knew the bill to be bad,
it would be like sending out a counter into circulation to impose upon
the world, instead of the current coin. In this case, therefore if the
defendants had known the bill to be bad, there is no doubt bat that they
would have been obliged to refund the money. I agree with the defend-
ants' counsel that Francis Huet was circumscribed in his authority;
and, if that circumstance would protect the defendants, they would not
be answerable in this action. But I am of opinion that that circum-
stance is not a decisive answer to this action. For I ver^- much doubt
the case, alluded to by the defendants' counsel, of the servant warrant-
ing the horse against the direction of his master ; to such a case I think
the maxim, respondeat superior applies ; and the principal has his
remedy against his agent for his misconduct. But the difficulty I meet
with is this, this is not an action wherein Francis Huet calls on the
defendants for an indemnity; if it were, I admit that, as he exceeded
the authority of his principal, he could not recover against him. But
here James Huet, who is an innocent man, and not involved in the
misconduct of his brother Francis Huet, has a claim on the defendants.
When James Huet received this bill, he was informed thatitcanie from
the defendants; and, on his asking why thej' had not indorsed it, he
was told by Francis Huet that the}' had done that which was equivalent
to it, for that their number was on it; in this indeed he was mistaken.
However he told James Huet that he should be safe, and that he would
guarantee him, on which the latter indorsed his name on the bill, and
thus indorsed, it got into the hands of the plaintiffs. Then it is clear
that the plaintiffs miglit resort to James Huet for payment : and that
brings it to this question, whether James Huet, who took the bill from
Francis Huet, knowing him to be the agent of the defendants, has not
a right to call on the defendants, who constituted Francis Huet their
agent, although that agent exceeded his authorit}-? I think that he has.
And if so, that is a good consideration for the promise made by the
defendants.

AsHHURST, J. Although I have had doubts upon this case, I am of
opinion that the defendants are not liable. If Francis Huet had been
the general agent of the defendants, I admit that they would be charge-
able with his acts : but it appears from the evidence that he was con-

SECT. III.] FENN V. HAREISON. 257

stitiited their particular agent with a circumscribed authority. And
that brings it to the case put at the bar of the sale of a horse ; where I
take the distinction to be, that, if a person keeping livery stables, and
having a horse to sell, directed his servant not to warrant him, and the
servant did nevertheless warrant him, still the master would be liable
ou the warrant3', because the servant was acting within the general
scope of his authority, and the public cannot be supposed to be cogni-
zant of an}- private conversation between the master and servant : ^ but
if the owner of a horse were to send a stranger to a fair with express
directions not to warrant the horse, and the latter acted contrary to the
orders, the purchaser could only have recourse to the person who ac-
tually sold the horse, and the owner would not be liable on the warranty,
because the servant was not acting within the scope of his employment.
And that is like this case : Here F. Huet, who was employed b}' the
defendants to get the bill discounted, was expressly directed by them
not to indorse it, which was equivalent to saying that they would not
pa}' it. I agree that F. Huet would be liable to James Huet, either as
for money paid to his use, or on the express promise to guarantee : but
there it stops ; for, as to the defendants, he paid the money in his own
wrong, because the authority which they gave was exceeded. There-
fore, on the whole, I think that the defendants are neither liable on
account of the indorsement made by James Huet, nor on their subse-
quent promise to pa}', because not being under any obligation, it was
nudum pactum.

BuLLEK, J. I confess that this dors not appear to me to be a case of
much difficulty ; for, when the facts are understood, the consequences
follow of course. The result of my opinion is that, as between these
parties, the plaintiffs have no conscience or equit\\ and that the defend-
ants are not under an}' legal or moral obligation whatever to pay the
amount of this bill. I consider this action as a new attempt ; and it is
difficult to say to what extent it may be carried, if it be encouraged.
In the case of a bill of exchange, we know precisely what remedy the
holder has, if the bill be not paid ; his security appeals wholly on the
face of the bill itself; the acceptor, the drawer, and the indorsers, are
all liable in their turns, but they are only liable because they have
written their names on the bill. But this is an attempt to make some
other persons liable, whose names do not appear on the bill, and that
under circumstances very alarming to mercantile houses through whose
hands bills of exchange pass. For even indorsers, whose names are on
the bill, can only be called on after notice of non-payment, and without
delay. But if these defendants be answerable, by what rule are we to
be guided ; what notice is to be given to them ; are they to be liable at
any distance of time? I think this is a dangerous attempt, and ought
to be discouraged ; for in all cases arising on bills of exchange, there
should be some limitation of time, beyond which none of the parties

1 Vide 10 Mod. 109. — Rep.
17

258 FENN V. HARRISOX. [CHAP. II.

should be called on. In this case the defendants said in the most ex-
press terms that the}' would not make themselves liable on the bill ; for
when they told F. Iluet that they would not indorse it, it was the same
as if the}' had told him in terms to sell it. When a person refuses to
indorse a bill, it cannot be implied that he means to make himself liable
on the bill, much less in a more extensive way than if he had indorsed
it. The authority of F. Iluet was circumscribed ; he was mistaken in
what he said to J. Iluet ; he did not even desire J. Huet to act on the
authority of the defendants ; he thought that the defendants would be
liable; but that was merely his opinion. F. Iluet therefore did not
pledge the names of the defendants in any way whatever : consequently
the}' were under no obligation whatever to promise, and it is nudum
pactum. I agree with my brother Ashhurst, that there is a wide dis-
tinction between general and particular agents. If a person be appointed
a general agent, as in the case of a factor for a merchant residing abroad,
the principal is bound by his acts. But an agent, constituted so for a
particular purpose and under a limited and circumscribed power, cannot
bind the principal by any act in which he exceeds his authority ; for
that would be to say that one man may bind another against his con-
sent. There is a class of cases, which have been thought to bear ex-
tremely hard upon masters, who are held liable for the misfeasance of
their servants in driving their carriages against those of third persons :
but those cases have been determined on the ground that it must be
presumed that the servants have acted under the orders of their masters.
But suppose a master ordered his servant not to take his horses and
carriage out of the stable, and the latter went in defiance of his master's
orders ; there is no authority which says that the master shall be liable
for any injury done to another by such an act of the servant : though
indeed if the master had ordered the servant to go a particular journey,
and in the course of it the latter did an injury to some third person, the
authorities, which have been determined, say that the master is liable
in that case.

Grose, J. As I have had great doubts on this case, I am glad to
have heard the opinions of my Brothers before I deliver my own. The
question is, whether at the time when the defendants made this promise
it was nudum pactum,, or whether there were any legal consideration
for it. In the first place, this is a new attempt to make the defendants
liable as if they had indorsed the bill, when in fact they refused to in-
dorse it. The substance of the conversation between the defendants
and F. Huet was this ; they said, " Take the bill, get it discounted, and
sell it, but we will not be answerable to the holder of the bill in any
way whatever." If that be so, undoubtedly they were not liable to the
bolder ; and then the subsequent promise is without consideration,
unless something passed at the time when it was made to raise a con-
sideration. But nothing is stated to show that the defendants received
any benefit, or that the plaintiffs renounced any advantage. A strong
circumstance in this case is, that at the time of the original transaction

SECT. III.] FENN V. HARRISON. 259

the credit of Gibson r. Johnson was much relied on. Then there is no
pretence to impute fraud to an^- of the parties ; and, if not, the moraht}'
follows the law. I consider this as a new and dangerous attempt to
make the defendants liable, and that even beyond the extent to which
indorsers are ; and if we were to make them liable, it would be difficult
to sa}' what law attaches on them. As to the distinction between a
general and a particular agency ; I think it was pointedly put b}- m}'
Brother Ashhurst, with whom I entirely agree.

Mule absolute.^

FENN V. HARRISON.
King's Bench. 1791.

[4 r. AM 77.]

On the third trial of this cause at the sittings after last term before
Lord Kenyon, the same evidence was given as on the second trial, with
this difference, that, when the defendants desired F. Huet to get the
bill discounted, they did not sa}- that they would not indorse it. The
jury found a verdict for the plaintiffs, which the defendants' counsel
moved in this term to set aside : but, after arguments at the bar by
JBea)'crqft, Erskine, and Haldwin, in support of the verdict, and Min-
gay, and Xaio, on the other side.

The Court were unanimously of opinion that the rule for setting aside
the verdict, and for granting a new trial, should be discharged ; on the
ground that, as the defendants had authorized F. Huet to get the bill
discounted, without restraining his authorit}- as to the mode of doing it,
they were bound b}- his acts ; and that, if it were doubtful, from the
conversation which passed between the defendants and F. Huet at the
time when they applied to him to get the bill discounted, what authority
the defendants intended to confer on F. Huet in this transaction, their
subsequent conduct, in promising to pa}' the bill, was decisive. But

Ashhurst, Buller, and Grose, Justices, said that, unless the evi-
dence on this trial had varied from that given before, they should have
continued to entertain the same opinion which they delivered on the
former occasion.

Eide to grant a new trial discharged.

1 Vide post, 4 vol. 177, s. c. — Rep.

260 GAEDNER V. BAILLIE. [CHAP. IL

GARDNER v. BAILLIE.
King's Bench, 1790.

[6 T. li. 591.]

This was an action on a bill of exchange, drawn b}' the plaintiff on the
4th of September, 1793, for £793 7s. Qd. on the defendant by the name
and description of Mrs. C. Baillie, executrix of J. B., accepted by E.
Thornton for and on behalf of the defendant, it being averred that
Thornton was duly authorized by the defendant to accept the same on
her account.

At the trial before Lord Ken yon at the Sittings after the last term it
was proved on behalf of the plaintiff that Thornton, who acted under a
letter of attorney- from the defendant, accepted the bill in question,
which was drawn and accepted for a debt due to the plaintiff from the
defendant's testator ; and evidence was offered to prove that the defend-
ant had paid other bills drawn on her by other creditors of J. Baillie,
and accepted on her account b}' Thornton who on those occasions also
acted under this power of attorney, but Lord Kenyon thought the
evidence inadmissible. A verdict was taken for the plaintiff for the
amount of the bill, with liberty for the defendant to move to set it aside
and to enter up a nonsuit, if this Court should be of opinion that the
plaintiff ought not to recover. The principal question in the cause was,
whether Thornton had power under this letter of attornej' to accept bills
of exchange for the defendant ; because, if he had, the verdict was right.
By the letter, after reciting that the defendant had been appointed ex-
ecutrix of J. Baillie, who was entitled to considerable sums of money
on mortgage bonds, bills, notes, unsettled accounts, &c. the defendant
appointed Thornton her attorney, as executrix, to ask, demand, sue for,
and receive all sums, &c. " which at the time of J. B.'s death were due
to him and which were then due to her as executrix ; " in her name, as
executrix, to adjust and settle all accounts, differences, &c., wherein
she, as executrix, was interested ; to submit the same to ai'bitration
(if necessary), and for that purpose in her name as executrix to execute
an}' bond, &c. ; to execute for her and in her name, as executrix, assign-
ments of mortgages, receipts, releases, &c. ; for her and in her name
as executrix and agreeabl}' to the due course and order of law to pay
all debts, &c. due from her as executrix, whether on mortgage bond,
bill, note, or otherwise ; and generall}' for her, as executrix, to do all
such further acts for receiving debts and discharging the powers given
b}- the letter of attorney ; and giving full power to ^o and act '' touching
and concerning all or an}' of the said premises as effectually to all in-
tents, constructions, and purposes, whatsoever, as she, as executrix,
could, &c."

A motion was accordingly made to set aside the verdict ; and it was
argued on a former day b}-

SECT. III.] HOWARD V. BAILLIE. 261

ErsJcine and Park for the plaintiff, and

Gibbs, Chambre^ and Giles, for tlie defendant ;

The former contending that, as Thornton was expressly authorized
to receive and pay all sums due to and from tlie defendant, to refer an}'
matters in dispute between her and any other person to arbitration, and
generally to do all further and other lawful and reasonable acts as to
him should seem proper, he had power to bind the defendant by accept-
ing the bill in question on her account, it being for a legal debt due
from her as executrix. The point, relative to the admissibility of the
evidence rejected, was not now insisted on.

For the defendant it was argued that the accepting of this bill by
Thornton was an excess of his authority not warranted hy the power,
because it would charge her in her own right, whereas the letter of
attorney onl}' authorized Thornton to bind her as executrix, the letter
being cautiously drawn with that view.

The Court said that though they had no doubt about the case, yet as
there was a similar cause (said to be) depending in the Court of
Common Pleas on the construction of the same letter of attorne}-, it
would be proper not to decide this case until they had had an oppor-
tunity' of conferring with the judges of that court on the subject. And
on this dav,

Lord Kenyon, C. J., said there was no reason wb}- the Court should
any longer suspend their judgment in this case, as the}' were all clearly
of opinion that Thornton had no authority to bind the defendant by
accepting the bill of exchange on her account, and consequently that
the action could not be maintained. That they had consulted with the
judges of the court of Common Pleas, who authorized him to sav that
the}' concurred in this opinion respecting the construction of the letter
of attorney, but that there were other circumstances in that case.

Mule absolute.

HOWARD V. BAILLIE.
Common Pleas. 1796.

[2 H. Bl. 618.]

The facts of this case, and such of the arguments as were material,
are stated in the following judgment, which was thus delivered in the
name of the Court by the Lord Chief Justice : — ^

A new trial has been moved for in this cause, in which the plaintiffs,
being the drawers of a bill of exchange upon the defendant, dated 10th
January, 1794, for £290 18s. Zd. value in account with James Baillie
(whose executrix the defendant is), payable upon the 1st of September,

1 Sir James Ei're. — Ed.

262 HOWARD V. BAILLIE. [CHAP. IL

1795, to their own order, and which bill of exchange was accepted by
the defendant by Edmund Thornton her procurator, having recovered a
verdict for £330 damages. The ground made for this application is,
that upon the case in evidence Mr. Thornton was not the procurator for
the defendant duly authorized to accept this bill for her. The case was
shortly this : Mrs. Colin Baillie, being the sole acting executrix of
James Baillie, who died possessed of a large West India and other
property, and largely indebted to many persons, and among others to
the plaintiffs in the sum of £290 18.s\ 3(/., executed a power of attorney
to George Baillie and Edmund Thornton jointly and severally to act
for her in collecting and getting in the estate of the deceased, and pay-
ing his debts. These two persons acted under the power. The business
respecting the estate was transacted by one or other of them at the
counting-house where James Baillie's business was carried on in his
lifetime, and where the business of a new firm, at the head of which
was George Baillie, was also carried on after the death of James Baillie.
At this counting-house the bill in question was accepted, in the name
of the defendant, by Edmund Thornton one of the attorneys, as her
procurator, in payment of a debt due from the estate of James Baillie ;
and this was a mode adopted by the attorneys, [whether with or with-
out the privity of Mrs. Baillie at present I do not stay to inquire] for
the payment of the tradesmen's bills due from the estate. For the de-
fendant it is insisted, that the attorneys had rti- authority to provide for
the payment of the testator's debts in this manner, that they were to
administer the assets for the executrix, but that they could do no act
whereby she should become chargeable with the debts in her own right,
and particularly that they were not authorized to give a security for the
payment of any debts in her name. This makes it necessary to look
into the power of attorney, to view, and to consider the general scope
of it, and to examine the different parts of which it consists, as far as
the}' may seem to bear upon the present question. The general scope
of it is to put the whole estate into the hands of the attorneys, to commit
the collecting of it, and the disposition of it entirel}' to them, to delegate
to them all the authority that the executrix possessed, and to constitute
them, as far as it was possible to constitute them, executors in her
name. The first part of the instrument respects more particularlj* the
collecting of the estate ; and powers more ample could not be devised,
nor confidence more unlimited be reposed and expressed. The authority
to pay, discharge, and satisfj' debts is described in few words and more
general terms, and with a qualification properly applicable to this branch
of the power, " agreeably to the due order and course of law, to pay,
discharge, and satisf}'," vrhich I consider as tantamount to saying, in a
course of administration. Then follows a general authority to do such
further lawful and reasonable acts, for the better performing the powers
and authorities intended to be given, as to them should seem meet, the
executrix professing to give to them her full and whole power and author-
ity to do and act touching and concerning all or any of the premises, as

SECT. III.] HOWARD V. BAILLIE. 263

fully and effectually to all intents, constructions, and purposes, as she
as executrix could do if personally present, and undertaking to ratify
all that the attorneys should lawfully do in and about the premises.
There is also power to appoint attorneys to act in the name of the ex-
ecutrix. The authority to pay debts, upon the first view of it, seems
to be more confined and specified than the authority to collect the
eflfects, but if we consider it more attentively, we shall find that the ef-
fect of this part of the instrument is to commit the application of the
personal estate in paj'ment of debts to those attorney's absolutely and
exclusively; and it will also be found, without the assistance of general
words, that an authority of this nature necessarily includes medium
powers, which are not expressed. By medium powers, I mean all the
means necessary to be used, in order to attain the accomplishment of
the object of the principal power, which in this case is the paying, satis-
fying, and discharging the testator's debts. It must occur to every man
who reflects upon the nature of this trust, that numberless arrange-
ments would be to be made by those who were to execute it, accounts
to be settled, disputed claims to be adjusted, unjust ones to be resisted,
suits at law and in equity to be instituted and defended. pa3-raents to
be postponed or installed, according to the state of the fund, and per-
haps if the estate should be discovered to be insolvent, a distribution to be
made among the creditors in equal degree, pari passu. These and many
other subordinate powers, though not expressly given, as in the former
part of the instrument, must be understood to be included in this power
to pay debts ; and I take it to be clear, that in the construction of such
powers the}' are included. Our books say that these kind of authorities
are to be pursued strictly ; they instance that an authority given to three
cannot be executed by a less number than the whole, and the St. of 21
H. VIII. c. 4, was thought necessary to be made, to remedy- the inconveni-
ence arising from it in the case of executors, where some have declined
to act. But our books also sa\', that they are to be so construed as to
include all the necessary means of executing them with effect. Thus an
authorit}' to receive and recover debts includes a power to arrest. In
such a case as the present, which is not that of mere ministerial author-
ity capable of being defined and executed strictly, but a case where the
whole care of the administration is delegated by the executrix to the
attorneys, and all the means of executing the office of executrix put
into their hands, I am of opinion that both the particular provisions
and the general words ought to receive the most liberal construction,
which construction should, as far as possible, place the attornej'S where
the executrix intended to place them, in her room and stead, invested
with all her authority' and with all her discretion. Assuming then that
this authority to pay debts is larger and more comprehensive in its
nature, than the words construed very strictly would import, and that
it implies authority to make all necessary arrangements which the ex-
ecutrix herself might make, in order to the payment of the debts. I
ask, among the arrangements which it may be necessar}' for an exe«^U'

264 HOWARD V. BAILLIE. [CHAP. II.

trix, or for those to whom she has delegated all her authority touching
the payment of the testator's debts, to make, is there one more likely
to occur, more useful, in many cases more necessary, than that they
should ask and obtain from the creditors of tlie estate, time for pay-
ment of the debts, when the time given ma}- prevent all the vexation
and expense of a struggle for priority? Tliat an executrix herself
might make this arrangement, no one can doubt : that it is also neces'
sarj' that the}^ who are to have all the funds in tiieir hands, who know,
and are the only persons who can know within what time those funds
can be got in, and who have the whole application of them entrusted to
their care, who represent the executrix, and in effect are themselves
the executors, should have it in their power to make it, is equally' clear.
The consequence of such an arrangement in either ease, and indeed in
ever}' one of the instances which I before put, would be, that the ex-
ecutrix might by possibilit}' become personally and in her own right
chargeable with debts, as she might become chargeable in a variety of
other cases expressly within the power of attorney. But upon what-
ever ground, and bv whatever medium, in the instance of postponed
debts, this personal charge is produced, the debt still remains a debt
due from the estate, and pa3'able out of the assets. Such an arrange-
ment amounts to an admission, that at the expiration of the credit
given, there will be assets sufficient to pay the debt, which still remains
a charge upon the executrix as executrix, and only becoming eventually'
a charge upon her in her own right, if it should turn out that by some
unforeseen event there should be a failure of assets, or by misconduct a
devastavit incurred. If we are to argue from the intent of the instru-
ment, to be collected from the particular wording of it, I ask, Can it be
reasonably doubted, whether this executrix who trusted the whole of
this large estate in the hands and to the care of these attorneys, under
her personal responsibility for every shilling of the amount of it, if they
should fail in the collection or application of it, would have hesitated
to commit to their discretion, upon their view of the state of the prop-
ert}', and of the time within which it could be realized, the asking and
obtaining from the creditors twenty months further time for the pay-
ment of their respective debts? I ask, Whether the executrix did not
mean to throw all the burden of the administration of the effects upon
the attorneys? and. Whether there was not a convenient and necessary
discretion to be intrusted to them? When it is objected that the
authority given is restrained to an authority to pa}- in her stead as
executrix, and *■' agreeably to the due order and course of law," I an-
swer, that taking these words to amount to a direction to the attorney's
to pay in a course of administration, they were not meant, to control,
nor can they control the authority of the attorneys in any thing neces-
sarj' to that payment, in a course of administration. It is perfectly
clear, notwithstanding this direction, that the}' might take time for the
payment of the debts, having assets to pay them when the time came,
for then they would pay in a course of administration, and there can be

SECT. III.] HOWARD V. BAILLIE. 265

nothing repugnant to that direction in asking for the time, even though
the assets should afterwards fail, because it is a step taken upon a con-
viction tliat there will be as.sets to be administered in a due course of
law, and to the end that they may be administered. Where the execu-
trix has entrusted all to the care of her attorneys, with a responsibility
in herself to the extent of all the propert}', it is a small circumstance to
be observed upon, that though the payment of a debt, not in a course
of administration, is within the authority as between the creditor and
the executrix, yet that she might be obliged to answer to other creditors
as for a devastavit in respect of it. In truth, this direction to pay in a
course of administration ma}' operate as between her and her attorneys,
but as against creditors receiving payment of their debts it seems to me
that it can have no operation. Much stress was laid in the argument
on there being no express power given to the attorneys to sign accept-
ances for the executrix, but the objection proves too much. As well
might it be argued, that if the cash of the estate was kept at a banker's,
the attorneys should not draw for it in her name. The true question
appears to me to be, Whether the attorneys under this power have a
discretion to agree with creditors for the forbearance of tlie debts? and
that the rest of the difficult}' has more of form than substance in it. If
the foundation is well laid, the application of the argument to the par-
ticular case in question seems obvious and decisive. The acceptance
of tliis bill of exchange is called a security, but is in substance merely
a mode of taking twenty months' further time for payment of a debt,
due from the testator to these plaintiffs, and payable out of the assets.
Had the twenty months' credit been taken by a mere agreement to for-
bear, and she had been sued as executrix after the expiration of the
time given, she could not have \AQSn\Qd plen(i adniinistravit, because by
taking the credit she admitted assets. There is a formal difference onl}'
between that case and the present, the acceptance appears upon the
face of the bill to be an acceptance by her as executrix, and the con-
sideration of it is value in account with testator. If she is sued in her
own name, and not as executrix, she is so sued upon the same principle
upon which assignees of a bankrupt are sued for what they do after
the}' become assignees, for the estate, and at the expense of the estate.
The debt is still substantially the debt of the testator, which when paid
by her will be carried to the account of the testator's estate. I think
she might have been sued as executrix upon this acceptance, but as she
could not in that case have availed herself of a plea of plene adminis-
travit, it was not necessary so to sue her. In neither case could any
defence be made against the demand, and in truth no defence ought to
be made, for the creditor who accepts this kind of payment purchases
the benefit of it, the estate has had its advantage, and this defendant
as executrix has had her advantage of the forbearance. I have hitlierto
avoided any mention of the particular circumstances of this case, which
very strongly imply the knowledge of the defendant and her approba-
tion of the making these acceptances, but here they ought to have their

266 BATTY V. CAKSWELL. [CHAP. II

weight, b}" way of answer to the suggestion of possible inconvenience
which the suli'ering this verdict to stand might produce. I confess that
they appeared to me upon the trial, and do now upon the best con-
sideration that I can give to the case, appear to me to be strong enough
to raise an implication of a special procuration, if that were thought
necessary, from the executrix to her attorneys, to authorize these
acceptances, and that the defence now made upon the strict law is
against conscience and good faith. I have already taken an oppor-
tunity of observing on the case depending in the Court of King's Bench,
and what I suppose would be the decision of that court. I will only
now repeat, that we understand that it did not appear in that case,
that the acceptance was given for the payment of a debt due from the
testator, the payment of which had been agreed to be postponed, or in-
deed that it did in anj- manner touch or concern the execution of this
trust, which is the great and distinguishing feature between that case
and the present. We agree that this power cannot authorize the giving
acceptances in the name of Mrs. Baillie, which are neither expressed
uor proved to be in payment of the testator's debts. The case now in
judgment in this court rests on its own particular circumstances, upon
which we decide. Rule discharged.^

BATTY V. CARSWELL.
Supreme Court of New York. 1806.

[2 Johns. 48.]

This was an action of assumpsit, on a promissory note, alleged to
have been made by the defendants. The note was dated the 23d of
October, 1801, for the payment of $250, in GO days. Plea non assump-
sit. The cause was tried at the Washington circuit, on the 18th of
June, 1806, before Mr. Chief-Justice Kent.

On the trial the subscribing witness to the note swore that two or
three weeks previous to the date of the note, David Carswell, one of
the defendants, applied to Abner Carswell, the other defendant, to be
his suret}' to the plaintiff, on a note for $250, payable in six months,
which he consented to do, and directed the witness to sign his name to
such a note. A few days afterwards, and before the note was made,
David Carswell told the witness that he had informed Abner Carswell
that he should not want the monej' of the plaintiff, as he could do with-
out it. The witness, with tlie assent of David Carswell, for whom he
acted as clerk and agent, but without the privit}* of Abner Carswell,

1 The reporter's abstract of the power of attorney is omitted. The essential parts
of the instrument are found in Gardner v. Baillie, aiite, p. 260. — Ed.

SECT. III.] BATTY V. CARSWELL. 267

signed the note, on which the present action is brought, and for which
David Carswell received the amount.

It appeared that Abner Carswell had admitted in conversation that
he had authorized the other defendant to use his name to a note for
$250, for the purpose of procuring that sura of the plaintiff, but that he
was told by David Carswell that he should not want the money, and
did not know that the note had been so given until some time after-
wards. The note was then offered to be read in evidence, but objected
to b}' the defendants' counsel, because it had not been proved to have
been signed by the defendants ; but the objection was overruled. The
defendants' counsel then moved for a nonsuit, which was refused. The
judge charged the jury that if they believed that the note was made be-
fore David Carswell had told the other defendant that he should not
want the monej-, the plaintiff would be entitled to recover, otherwise
they ought to find for the defendants ; but that those were facts on
which they were to decide. The jur}' found a verdict for the plaintiff.

A motion was now made for a new trial, unless the court should thiuk
proper to grant a nonsuit.

Foot^ for the defendants.

Crary and Russell, contra.

Livingston, J., delivered the opinion of the court. This was a spe-
cial power, and ought to have been strictly pursued, 3 Term, 762.
But the note, to which Abner Carswell authorized the witness to put
his name, was to be payable in six months whereas, the one he signed
had only sixty days to run. The note, then, as far as it concerned
Abner, admitting there was no revocation, was made without his au-
thority. His confession, after the suit was commenced, does not alter
the state of the case. It was merely that he had allowed David to put
his name to a note. This must have been the one of wijich the first
witness speaks, which was to be paj-able in six months. There must
be a new trial, with costs, to abide the event of the suit.

2^ew trial granted.

268 WILTSHIRE V. SIMS. [CHAP. IL

WILTSHIRE V. SIMS.
Nisi Prius. 1808.

[1 Camp. 258.]

Action for not transferring stock.

The only witness was Watkins, the broker in this transaction, who
stated that the defendant gave him orders to sell out £500 of the stock
of the trustees of the Commercial Road ; that on the 27th of August he
agreed to sell it to the plaintiff ; that as the transfer could not be made
till the expiration of a fortnight, when there was to be a meeting of the
trustees, the plaintiff paid him for the stock b}' a promissory note at 14
da^-s ; that in taking the note he acted with a view to his employer's
advantage, thinking the stock might fall before the transfer could be
made ; that he paid in the note to his bankers, where it was attached
for a debt of his own ; and that at the end of the fortnight the defend-
ant refused to make the transfer, as he had received no part of the
purchase mone}-.

It was contended for the plaintiff, that the sale of the stock on the
27th of August was binding on the defendant. "Watkins was his author-
ized agent, and had acted bona fide for his benefit. He must he
supposed to have empowered his agent to sell the stock in the manner
most for his interest, and the loss ought to fall upon him, not upon the
plaintiff, who had paid for the stock, under the natural impression that
Watkins had authority to sell it immediateh', though a short time was
to intervene before the stock could be transferred in the books of the
trustees.

Lord Ellenborough. When the defendant employed the broker to
sell the stock, he employed him to sell it in the usual manner. He
made him his agent for common purposes in a transaction of this sort.
But did an}' one ever hear of stock being absolutely exchanged for a
bill at 14 days? Has a broker in common cases power to give credit
for the price of the stock which he agrees to sell? The broker here
sold the stock in an unusual manner ; and unless he was expressly
authorized to do so, his principal is not bound by his acts.

Plaintiff nonsuited,

Garrow, Park, and Laices, for the plaintiff.

The Attorney- General and Header, for the defendant.

SECT. III.] HOGG V. fcJNAITll. 269

HOGG V. SNAITH.
Common Fleas. 1808.

[1 Taiuiloti,'6'i1.]

Trover for two bills of exchange. Upon the trial of this cause at
the lust sittings at Guildhall, before Mansfield, C. J., a verdict was
taken for the plaintiff, subject to the opinion of the court upon the
following case. The i)laintiff, by a power of attorne}- under seal,
constituted English his attorney revocable, for him, in his name, and to
his use, to ask, claim, demand, recover, and receive, from the commis-
sioners of His Majesty's navy, or whom else it might concern, all such
salary, wages, &c., and all other money whatsoever, as then was or
thereafter should be due to him for his service, or otherwise, in anj- of
His Majesty's ships ; then followed a general power to receive all
demands from all other persons whatsoever; the constituent giving and
thereby granting unto his said attoi'uey, his substitutes and assigns, all
his authority and lawful power in the premises for receiving, recovering,
obtaining, compounding, and discharging the same, as fully and effectually
as he himself might or could do being personally present ; and acquit-
tances, releases, or any other discharges in his name to make, seal, and
deliver, and one attorney or more to substitute, and at pleasure to
revoke, with the usual clause of general ratification. By virtue of this
power English received from the commissioners for victualling His
Majesty's nav}-, for the use and on the account of the plaintiff, the two
bills in question, which were made payable to the plaintiff or his order.
Upon each of these bills a clerk in the pay department of the victualling
office had written his initials, G. S., with the words " letter of attorney
entered, William C. English, attorney," to denote that the power was
lodged in the victualling office, and that the proper officer there recog-
nized English as Hogg's attorney. English, without an}' other authority
from the plaintiff than this, being indebted to the defendants, who
were his bankers, in the sum of £142, applied to them to discount these
bills, which he delivered to them, indorsed " W, C. English, attorney."
The defendants discounted, and placed them to the credit of his account.
Before the bills were due, the plaintiff gave the defendants notice that
he had revoked the power of attorne}' made in favor of English, and
that in case English or any other person should present to them both or
either of the bills for discount, or security for money advanced, they
should refuse them ; he also demanded possession of the bills, which
the defendants refused to deliver up. The defendants offered evidence
that it was a general usage and practice for attornej's, constituted by,
and acting under similar powers, to negotiate bills of this description,
by indorsing them in the like manner. The plaintiff objected to the
evidence, but Mansfield, C. J., admitted it subject to the opinion of
the court. And it was proved that powers of attornev lodged at the

270 HOGG V. SNAITH. [CHAP. IL

victualling office were not all in one and the same form, but tliat this
particular power was in the form most commonl}' used for the last eight-
een or nineteen j'ears ; before which time victualling bills were not made
payable to order, but an assignment, or bill of sale, was necessary to
transfer tliem ; that the bills in question, thus indorsed, and thus marked
by the clerk, would have been paid at the victualling office, either to
English or any other person who should have produced them with the
same indorsement, but for the notice to stop the payment, which had
been given by the plaintiff. That it was the practice amongst navy
agents, acting under similar powers of attorney, to raise money for the
use of their principals, by indorsing similar bills in the same way, and
delivering them to their bankers, who had continuall}' advanced money
upon them and had received the contents from the victualling office, with-
out any other warrant or authorit}' than such indorsement ; and that bills
so indorsed and marked were frequently negotiated ; it being considered
that the mark recognizing the appointment of the attorney, and his
indorsement, rendered them negotiable. The questions for the opinion
of the court were, first, Whether upon the whole evidence, considering
it all as admissible, English had sufficient authority to indorse and
discount the bills for his own use? and if the court should be of opinion
that he had, then, secondly, Whether the evidence objected to ought to
have been received? and if the court should be of opinion that it
ought not, then, thirdly, Whether, rejecting the evidence of usage, and
considering the case apart from the facts found upon such evidence,
English had sufficient authority' to indorse and discount the bills for his
own use?

£est, Serjt., for the plaintiff, contended that no authority was given
to English by the power of attorney to discount or negotiate these bills ;
and so far as his acts exceeded the scope of his authorit}', they were
wholly void, and could not alter the plaintiffs property in the bills. He
observed that the power of the attorne\^ was limited to receiving these
bills at the navy office ; and it then became his duty to deliver them over
to the plaintiff ; for bj' the course of the navy office, the deliver}- of
the bills was payment of the debt due from the public to the plaintiff.
It would be too great a concession to allow that he could, even at the
end of the ninet}' days, indorse them for the purpose of receiving the
money on them for the plaintiff's use. [Lawrence, J., interposing,
read a short note of the following case, as decisive of the first point.
" Hay, Executor v. Goldsraidt and Another, B. R., Mich. Term, 45 Geo.
in. This was an action brought to recover the money which had been re-
ceived by the defendants upon a bill of exchange, payable to the plain-
tiff's testator, Major-General Patrick Duff, or his order, of which bill the
defendants had obtained payment under a power of attorne}' granted
b}' the testator to J. and R. Duff, and authorizing them, for him and in
his name, to ask, demand, and receive from the East India Company,
or whom it should or might concern, all money that might become due
to him on any account whatsoever, and to transact all business, and

SECT. III.] HOGG V. SNAITH. 271

upon non-payment or non-delivciy thereof, for him and in his name to
use all sueh lawful ways and means for the recovery thereof as he might
or could do if he was personally present, and did the same ; and on pay-
ment or delivery thereof, for him and in his name to make and give
proper receipts or other discharges for the same ; and one or more
substitute and substitutes under them to appoint, and again at pleasure
to revoke, giving and thereby gi-anting unto his said attorneys and their
substitute and substitutes, his full and whole power and authoritj- in the
premises ; and concluding with the usual clause of ratification. Under
this power J. and R. Duff received an India bill for £2920 8s. lOd,
payable to the testator or his order, which each of them indorsed ' for
Major-General Patrick Duff, per procuration, James Duff, Robert Duff.'
They discounted the bill with the defendants and raised money on it.
The defendants, by their broker, received of the India Company the
money due on the bill. At the trial a verdict was found for the plain-
tiffs ; and Erskine, for the defendants, having obtained a rule nisi for
setting aside the verdict, and entering a nonsuit, the question for the
Court of King's Bench was, whether J. and R. Duff had any authority
to indorse and discount the bill? The present Attorney-General
(Gibbs) and Wilson showed cause, and contended that the power of
attorney' gave the Duffs authorit}- to receive only, and not to negotiate
the bill. Erskine and Gaselee, contra, relied on the words, ' to transact
all business,' as giving an authority to do more than merel}' to receive,
and contended that the indorsement was only a substitution of other
persons for the attorneys themselves, which the power enabled tliem to
make. The cases of Howard v. Baillie, 2 H. Bl. 618, and Gardner v.
Baillie, 6 Term Rep. 592, were referred to in the course of the argument.
"• The court was of opinion that the power to transact business did not
authorize the Duffs to indorse the bill. The most large powers must be
construed with reference to the subject-matter. The words ' all busi-
ness ' must be confined to all business necessarj- for the receipt of the
money. Rule discharged." ]

Sest. 2. The evidence of the usage, if properly received in the prin-
cipal case, does not distinguish it from that of Hay v. Goldsmidt. It
was proved, indeed, that these bills, with this indorsement, would have
been paid, except for the notice, and that navj- agents are accustomed
to raise money upon similar bills for the use of their principals. But
here the mone}' was not raised for the use of the principal, but for that
of the attorney. But 3. the evidence of the usage ought not to have
been admitted at all. The practice of abuses, by what authority soever
it may be countenanced, cannot be received to enlarge the operation of
a definite written instrument.

Marshall, Serjt., contra, admitted that according to Comb's Case, 9
Co. 75, the attorney could regularly do no act unless in the name of his
principal. But it was proved that these bills, indorsed in the name of
the attorney and not iu that of the principal, would have been paid at

272 PICKERING V. BUSK. [CHAP. II.

the victualling office when due. And this usage had now so long pre-
vailed that it induced bankers and others to advance money to a large
amount upon this title. It was therefore such an universal practice of
a trade as to take the case out of the general rule of law. It is in
every day's occurrence that evidence is received of the usage of a par-
ticular trade to control the general law ; and it was clearly right to
receive such evidence in this instance.

Mansfield, C. J. It certainly was proved at the trial that nav}' and
victualling bills, indorsed under a power hke this, and so registered,
currently pass from hand to hand like bank notes ; but I was neverthe-
less of opinion that parol evidence could not be received to vary a
written instrument. But if the evidence of the usage had been ten
times as strong it would not have authorized this transaction. The
banker knew that these bills were not deposited with him for the debt
of the plaintiff, but for that of English. This is not at all distinguish-
able from the case mentioned by my brother Lawrence ; English could
not possibly pay his own debt to Snaith with this mone}'.

Heath, J., concurred. This evidence ought not to be received to
control the legal import of a known instrument in trade and commerce.

Lawrence, J., was of the same opinion.

Chambre, J. This authority' is strictly confined to receiving the
debt due to the plaintiff from the commissioners of the nav}'. English,
by receiving the bills, performed all that he was authorized to do. He
ought afterwards to have kept them in his possession for the plaintiff.
However, even supposing that his power extended so far, that if he had
kept the bills till they were due, he might have gone to the treasurer of
the navy and received the money upon indorsing the bills, still this is
clearly a deviation from that usage. But the evidence of the usage
ought never to have been received for the purpose of altering the opera-
tion of a written instrument.

Z^ei the postea be delivered to the plaintiff }

PICKERING V. BUSK.
King's Bench. 1812.

[1.5 East, 38.]

Trover for hemp. At the trial before Lord Ellenborough, C. J.,
at the sittings after Trinity term in London, it appeared that Swallow,
a broker in London, engaged in the hemp trade, had purchased for the
plaintiff, a merchant at Hull, a parcel of hemp then Mng at S^-monds*
wharf in Southwark. The hemp was delivered to Swallow, at the desire
of the plaintiff, hy a transfer in the books of the wharfinger from the

1 See Rossiter v. Rossiter, 8 Wend. 494 (1832). — Ed.

SECT. III.] PICKERING V. BUSK. 273

name of the seller to that of Swallow. Shortly afterwards Swallow
purchased for the plaintiff another parcel of hemp, lying at Brown's
quay, Wapping, which latter parcel was transferred into the names of
Pickering (tlie plaintiff), or Swallow. Both these parcels of hemp were
duly paid for by the plaintiff. Swallow, however, whilst the hemp re-
mained thus in his name, having contracted with Hay ward & Co., as
the broker of Blackburn & Co., for the sale of hemp, and having none of
his own to deliver, transferred into the names of Hay ward &. Co. the
above parcels in satisfaction of that contract, for which they paid him
the value. Hayward & Co. shortly after became bankrupts ; and the
plaintiff, discovering these circumstances, demanded the hemp of the
defendants their assignees, and upon their refusal to deliver it the present
action was brought. His Lordship was of opinion upon this evidence,
that the transfer of the hemp, by direction of the plaintiff, into Swal-
low's name, authorized him to deal with it as owner, with respect to
third persons ; and that the plaintiff, who had thus enabled him to
assume the appearance of ownership to the world, must abide the con-
sequence of his own act. A verdict was thereupon found for the defend-
ants, with liberty- to the plaintiff to move to set it aside.

The Attorney-General in the last term accordingly moved for a new
trial, on the ground that the principal in this case, b^- authorizing the
transfer to be made into the name of his broker, had done no more than
was usual and notorious in the course of that business, and therefore
gave no authority to the broker, his agent, to transfer the property
without his direction. Where by the ordinary course of trade the pos-
session of goods is left with an agent, he cannot dispose of it as his
own, but the purchaser must look to his authority. Such is the case of
a factor, who b}- the usage of trade has authority to sell, but not to
pledge. Therefore though he, like the broker in this case, be the
apparent owner, 3'et his pledge will not bind the principal. As in
M'Combie v. Davies, 6 East, 538, and 7 East, 5, where an assignment of
tobacco in the King's warehouse had been taken bj- wa}- of pledge from
the broker who had purchased it there in his own name for his
principal, it was held that the pawnee could not retain it against the
principal.

The Court now distinguished between that case which was the case
of a pledge, and bej'ond the scope of a broker's general authority ; and
this, which was the case of a sale, and within his general authorit}' ;
but the}' granted a rule to show cause, as the point was of general
consequence.

Garroic, Topping, and Taddy^ now showed cause and observed,
that Hayward & Co., who purchased the hemp of Swallow, had no
means of discovering that the hemp was not the propert}' of the person
in whose name it stood, and who took upon him to deal with it as his
own. And it would be unjust that, because the broker has turned out
to be an unfaithful steward of his emplovxr, the innocent purchasers
should suffer rather than the plaintiff, by whose act in suffering the

274 PICKERING V, BUSK. [cHAP. 11.

goods to be entered in the broker's name, the latter was enabled
to practise the delusion. If the plaintiff had meant to retain his
dominion over the property, he should have taken the transfer in his
own name instead of the broker's. M'Combie v. Davies, 6 East, 538,
was the case of a pledge, and onh* decides that a broker cannot pledge
the goods of his principal ; which doctrine was before laid down in
Patterson v. Tash, 2 Str. 1178, in the case of a factor. But here
Swallow has made an absolute sale ; which he had an apparent author-
ity to do: and according to Parker v. Patrick, 5 Term Rep. 175, the
owner, who has enabled another person to deal with the goods as his
own, must abide the consequence if any loss occur b}' third persons*
dealing with such apparent owner. [Bayley, J. That doctrine in its
full extent would give the pawnee in all cases a better title than the
original proprietor.]

T7ie Attorney-General, -Park, and Abbott, co7itra. The question is
whether the property' in the hemp passed by the sale and delivery of
Swallow. The cases of Patei'son v. Tash, and M'Combie v. Davies,
establish the principle, that if an agent go beyond his authorit}' in dis-
posing of the goods of another, that other is not bound b}' such an
excess of authority : on that ground only has it been held that a factor
cannot pledge ; because his principal has given him no authority to
pledge. But he may sell, because his principal entrusts him with an
authority to sell. How then can a broker, who has no authorit}' either
to sell or pledge, bind his principal by a sale? [Lord Ellenborocgh,
C. J. If Swallow had not the hemp for the purpose of sale, for what
purpose had he it?] For the purpose of safe custod}', and for the con-
venience of the owner. The world had no right to conclude from the
circumstance of the goods being in his name, that therefore he had the
power of disposing of them. The argument, that the property in goods
should follow the possession, might have weight, if the question were
whether the law should be altered in this respect : but that such is not
the rule of law is clear from the excepted case of a sale ifi market overt,
by which alone the property of another is bound. If a person entrust
his watch to a watchmaker for the purpose of repairing it, and he sell
it, the owner is not bound by such sale, because he had given no author-
ity to sell. [Lord Ellenborough, C. J. In that case the watclimaker
is not exhibited to the world as the owner, and the world does not credit
him as such merely b3' reason of his possession of the property. But
here Swallow was a common agent for the sale of property of this de-
scription.] Unless Swallow had the power of sale expressly given him,
no such power can be implied from the mere fact of the goods being
entered in his name at the wharfs. It does not follow that he who per-
mits the possession of propert}' by another therefore gives him an
authority to dispose of it, though that other ma}' deal in goods of the
same kind. If one entrust a chest of tea, for the purpose of safe cus-
tody', to a grocer who deals in such commodity, and whom the world
therefore might suppose to have the property in the chest, and he sell

SECT. III.] PICKERING V. BUSK 275

it ; the chest remaining unbroken ; willioiit doiil)t the owner may recover
it from the vendee ; for the grocer was onlj' entrusted with the custody,
and in cases of this kind the rule of caveat emptor applies. So where
goods are consigned to a merchant from abroad, the consignee cannot
go beyond his authority in disposing of them ; and yet he may have tlie
full possession of them either by delivery- of the goods themselves or of
the bills of lading, and may thereby impose on the world. The princi-
ple of all which cases is this, that a person who is entrusted with the
goods of anotlier can do no more in respect of those goods than what
the other has authorized him to do. Whether Swallow had power to
sell is a fact, and not an inference of law arising out of the apparent
possession : but no such fact was proved or found in this case. The
only distinction between this and the case of a factor is that the factor
has some authorit}' ; that is, to sell ; but here Swallow had none. In
Wilkinson v. King, 2 Camp. N. P. Cas. 335, which was trover for lead,
it appeared that the plaintiff had sent the lead to a wharfinger who was
accustomed to sell lead ; and he sold it to the defendant, who bought it
bond fide : yet it was held that the plaintiff was entitled to recover.
[Lord P^LLENBOROUGH, C. J. That was the case of a wharfinger whose
proper business it was not to sell ; and to whom the goods were sent for
the mere purpose of custody.] The case states that he was accustomed
to sell lead.

Lord Ellenborough, C. J. It cannot fairly be questioned in this
case but that Swallow had an implied authorit}' to sell. Strangers can
only look to the acts of the parties, and to the external indicia of prop-
erty, and not to the private communications which ma^' pass between a
principal and his broker ; and if a person authorize another to assume
the apparent right of disposing of property in the ordinary course of
trade, it must be presumed that the apparent authority is the real author-
it}'. I cannot subscribe to the doctrine, that a broker's engagements
are necessarily and in all cases limited to his actual authority, the real-
ity of which is afterwards to be tried by the fact. It is clear that he
may bind his principal witliin the limits of the authority with which he
has been apparently clothed by the principal in respect of the subject-
matter ; and there would be no safety in mercantile transactions if he
could not. If the principal send his commodity to a place, where it is
the ordinary business of the person to whom it is confided to sell, it
must be intended that the commodity was sent thither for the purpose
of sale. If the owner of a horse send it to a repository of sale, can it
be implied that he sent it thither for any other purpose than that of
sale? Or if one send goods to an auction-room, can it be supposed that
he sent them thither merely for safe custody ? Where the commodity
is sent in such a way and to such a place as to exhibit an apparent pur-
pose of sale, the principal will be bound and the purchaser safe. The
case of a factor not being able to pledge the goods of his principal con-
fided to him for sale, though clothed with an apparent ownership, has
been pressed upon us in the argument, and considerably distressed our

276 PICKERING V. BUSK. [cHAP. II,

decision. The Court, however, will decide that question when it arises,
consistently with the principle on wiiicli the present decision is founded.
It was a hard doctrine when the pawnee was told that the pledger of the
goods had no authorit}' to pledge them, being a mere factor for sale ; and
yet since the case of Paterson v. Tash, that doctrine has never been
overturned. I remember Mr. Wallace arguing, in Campbell v. Wright, 4
Burr. 2046, that the bills of lading ought to designate the consignee as
factor, otherwise it was but just that the consignors should abide by the
consequence of having misled the pawnees. The present case, however,
is not the case of a pawn, but that of a sale by a broker having the
possession for the purpose of sale. The sale was made by a person who
had all the indicia of propert}- : the hemp could onl}' have been trans-
ferred into his name for the purpose of sale ; and the party who has so
transferred it cannot now rescind the contract. If the plaintiff had in-
tended to retain the dominion over the hemp, he should have placed it
in the wharfinger's books in his own name.

Grose, J. The question whether the plaintiff is bound by the act of
Swallow, depends upon the authoritj' which Swallow had. This being
a mercantile transaction, the jury were most competent to decide it;
and if I had entertained any doubt, I should rather have referred the
question to them for their determination : but I am perfectly satisfied:
I think Swallow had a power to sell.

Le Blanc, J. The law is clearly' laid down, that the mere possession
of personal property does not conve}- a title to dispose of it ; and, which
is equall}' clear, that the possession of a factor or broker does not
authorize him to pledge. But this is a case of sale. The question then
is whether Swallow had an authorit}* to sell. To decide this, let us look
at the situation of the parties. Swallow was a general seller of hemp :
the hemp in question was left in the custod}' of the wharfingers, part in
the name of Swallow, and part in tlie name of the plaintiff or Swallow,
which is the same thing. Now for what purpose could the plaintiff leave
it in the name of Swallow, but that Swallow might dispose of it in his
ordinar}' business as broker? if so, the broker having sold the hemp,
the principal is bound. This is distinguishable from all the cases where
goods are left in the custody- of persons whose proper business it is not
to sell.

Bayley, J. It ma}' be admitted that the plaintiff did not give
Swallow any express authority to sell ; but an implied authority ma.j be
given : and if a person put goods into the custody of another, whose
common business it is to sell, without limiting his authority, he thereby
confers an implied authorit}' upon him to sell them. Swallow was in
the habit of buying and selling hemp for others, concealing their names.
And now the plaintiff claims a libert}' to rescind the contract, because
no express authority was given to Swallow to sell. But is it competent
to him so to do? If the servant of a horse dealer with express direc-
tions not to warrant, do warrant, the master is bound ; because the ser-
vant, having a general authority' to sell, is in a condition to warrant,

SECT. III.] WIIITEIIKAD V. TUCKETT. 277

and the master has not notified to the world that tlie general authorit}'
is circumscribed. Tliis case does not proceed on the ground of a sale
in market overt, but it proceeds on tlie principle, that the plaintiff hav-
ing given Swallow an authoritj- to sell, he is not at liberty afterwards,
when there has been a sale, to deny the authority.

Rule discharged.^

WHITEHEAD v. TUCKETT.
King's Bench. 1812.

[15 East, 400.]

In trover for thirty-seven hogsheads of sugar, which was tried before
Le Blanc, J., at Lancaster, a verdict was found for the plaintiffs for
£3,000, subject to the opinion of the Court on tlie following case.

The defendant, a wholesale grocer at Bristol, employed Sill & Co.^
brokers at Liverpool, to buy and sell on his account great quantities of
sugars. The greater part were bought on speculation for resale, and
were resold at Liverpool, but some were occasionally sent to the de-
fendant. Sill & Co. usuall}- bought and paid for the sugars in their
own names, and in like manner resold and received the purchase-
mone3S in their own names. The}' did not draw upon the defendant
for the particular amount of each purchase, nor remit to him the par-
ticular bill received in payment on each sale ; but there was a general
running account between them. Sill & Co. never had a general au-
thority to buy for the defendant, but in each instance received his
directions for so doing ; but when the markets were low, thev had
sometimes an unlimited authority as to quantity or price. Previously
to the transaction which gave rise to the present action, Sill & Co. had
not a general authority to sell at their discretion, but received the de-
fendant's directions to sell on each occasion, and were limited as to
price; and upon the transaction in question they had no other authorit}'
in general than what appears from the letters hereinafter stated. In
May, 1810, Sill & Co. bought in their own names fifty hogsheads of
St. Croix sugar of Ewart, Rutson, & Co., on account of the defendant,
paid for them by their own draft, and reimbursed themselves by drafts
on the defendant ; not for the particular amount of this purchase, but
on the general account running between them. The samples were sent
as usual to Sill &. Co.'s office, and remained there till the sale to the
plaintiffs hereafter mentioned, and the sugars were removed from the
warehouse of the sellers to the warehouse of Sill & Co.

The following are extracts from the correspondence between Sill &

» And see Dyer v. Pearson, 3 B. & C. 38 (1824) ; McNeil v. Tenth National Bank,
46 N. Y. 325 (1871) ; Cole v. North- Western Bank, L. R. 10 C. P. 354, 364-365, 369
(Ex. Ch., 1875). — Ed.

278 WHITEHEAD V. TUCKETT. [CHAP. II.

Co. and the defendant. Sill to Tuckett, 7th July, 1810: "We attend
to your instructions of selling 1 a 200 hogsheads of your sugar as soon
as we can get 4s. to 5s. per cvvt. on them, and having an order from
C. E. Rawlins, of your place, we have sold him forty hogsheads and
two barrels, St. Lucia sugar, belonging to you, at 73s., payable by his
acceptance at four months, which, trust will meet with your approba-
tion." Tuckett to Sill & Co., Dth August, 1810 : " We are in no
hurry to part with the sugars under your care, but whenever your
market should advance 3s. above the present price, you may sell the
whole of the St. Croix sugars,^ bought in May last, at 68s. or 69s. ;
on the best terms to safe men." Sill & Co. to Tuckett, 11th August,
1810: " We shall not offer any more of 3'ours for the present, unless
the prices advance further." Tuckett to Sill & Co., 11th August,
1810 : " B}- our B. Sykes's letter to-day, we see he is arrived at Liver-
pool, and that you have disposed of five of our lots of sugar at 4s.
profit, which we are sorr\' for, as our late intention was to hold every
cask until the prices got much higher, which we are very confident will
be the case within six weeks. N. B. Of course you will not offer any
more for sale till further instructions from Bristol." Tuckett to Sill
& Co., 27th August, 1810 : " Our raw sugar market, though not brisk,
continues to keep up, gives some prices, and we are very confident the
price will continue to advance ; when you can obtain 10s. per cwt. on
cost, we may be inclined to sell a few of our sugars. Though we are
poor, we are willing to suspend a little while longer, being very confi-
dent far better prices will be obtained b^- and bj-." Tuckett to Sill &
Co., 22d September, 1810: "Sugars we are not inclined to sell at
present, from an undoubted opinion that the}- will soon rally again."
Tuckett to Sill & Co., 22d October, 1810: "Our sugar market is
brisk and advancing. Could there be any possibility of selling the St.
Domingo coffee at anything like cost price? Should the sugar market
advance about 2s. higher, you may sell any of our sugars, when cost
price and expenses can be obtained, to men of undoubted safety. We
see by your letter that raw sugars are much sought after ; and if you
can get Is. for these three lots of St. Croix, bought in the fifth month,
at 69s. 6d. you may let them go. The 38 hogsheads of AB.L. that you
value at 71s. would bring here 74s. or 75s., we attend 3'our reply."

On the 15th of October, 1810, Sill & Co. sold the fifty hogsheads of
St. Croix sugar to the plaintiffs, at 69s. per cwt. ; and an invoice was
made out and dehvered by Sill & Co. to the plaintiffs, headed as fol-
lows : "Liverpool, 10th month, 15th, 1810. Whitehead, Whittle and
Herd, Bought of James Sill & Co. 50 hogsheads sugar, payment in
three months and twelve days, equal to four months cash." Then fol-
lows a statement of the numbers and weights, amounting to 634 c.
2 q. 3 lb. nett, at 69s., £2,189 2s. Ad. The plaintiffs duly paid Sill
& Co. for these sugars, according to the contract ; and afterwards, on

* The sugars in question were part of the St. Croix sugars here mentioned. — Rep.

SECT. III.] WHITEHEAD V, TUCKETT. 279

their application, thirteen hogsheads were delivered by Sill & Co. to
the pUiiiitiffs, and by them removed ; namel}', three hogsheads on the
20lh, and ten on the 2yth of October, 1810. Sill & Co. did not inform
the defendant of the sale of these sugars to the plaintiffs, nor of the
delivery of those last mentioned, nor did they remit to him the purchase
mone}' bv them received from the plaintiffs. The remaining thirty-
seven hogsheads continued in the warehouse of Sill & Co. until their
bankruptcy, when they were taken possession of by the defendant ; and
upon his refusal to deliver them to the plaintiffs, this action was brought.
If the plaintiffs are entitled to recover, the amount of the damages was
agreed to be settled by arbitration at Liverpool. The question for the
opinion of the Court was whether the plaintiffs were entitled to recover?
if they were, the verdict was to stand, or be entered for such sum as
should be awarded : if not, a nonsuit was to be entered.

Michardson^ for the plaintiffs.

Scarlett, for the defendant.-'

Hichardsoii in reply.

Lord Ellenuorough, C. J. This is an action brought by the plain-
tiffs to recover the value of certain hogsheads of sugar purchased b}'
them of Sill & Co., who are brokers at Liverpool, which the defendant
claims to retain as his property, as having been improperl}' disposed of
by Sill & Co., to whom he had intrusted them for the purposes of sale
under a limited authorit}-, which they had exceeded. Much of the argu-
ment in this case has turned upon the question whether Sill & Co. were
invested with a general authority to sell the sugars : when that question
is discussed, it may be material to consider the distinction between a
particular and a general authority ; the latter of which does not im-
port an unqualified authoritv, but that which is derived from a multi-
tude of instances ; whereas the former is confined to an individual
instance. Such was the distinction which governed the decision in
Fenn v. Harrison, and in the MS. case cited. Now in that sense of the
term general authority, Sill & Co. were general agents ; for they bought
and sold in a multitude of instances in their own names, paid and re-
ceived the money in their own names, and blended their accounts of
receipts and payments, without carrying each order to a separate ac-
count with the defendant ; and althougli there was a communication
between them and the defendant as to the price and time of sale, yet the
world was not privy to that communication, and had therefore no means
of knowing that their general authority was controlled by the interpo-
sition of any check. But even looking to the letters, I find nothing
in them to contravene a general power of sale. There are indeed par-

1 Scarlett " mentioned a MS. case in 1792 or 179.3 to the following effect : A ser-
vant was sent with a horse to a fair, with an express order from the master not to sell
it under a certain snm ; the servant, notwithstanding, sold it for a less sum ; upon
which the master immediately gave notice and brought trover against the pur-
chaser ; and it was held that he might recover, because the servant was not his general
agent " — Rep.

280 WHITEHEAD V. TUCKETT. [CHAP. II.

ticular allusions as to the price and time of sale, b}' way of advice and
instruction ; but I cannot find that they contain an}' general prohibition
to sell, nor any absolute limitation of the terms on which the}' were to
sell. In the letter of the 9th of August, the defendant writes to Sill
& Co. " that the}' may sell the whole of the St. Croix sugars at GSs. or
695. on the best terms, to safe men." If these expressions are to be
construed into so man}^ restrictions of the power of the brokers, it
will follow that the}' were not only limited as to price, but also as to
the terms of sale, which according to the letter were to be the best, and
as to the purchasers who were to be safe men ; and if in either of these
respects tlie contract made by them should fail, their principal would
have a right to reject it. But if this could be done, in what a perilous
predicament would the world stand in respect of their dealings with
persons who may have secret connnunications with their principal.
Such communications therefore must not be taken as limitations of
their power, however wise they may be as suggestions on the part of
the principal. In another letter the defendant, alluding to information
which his house had received from Sill & Co., of their having disposed
of some lots of sugars, remarks " that they are sorry, as their late in-
tention was to hold every cask until tlie prices got much higher." Now
this is the very language of a person who had given his broker an au-
thority to exercise his discretion upon the subject, and not of one who
miglit have repudiated the contract as being contrary to his instructions.
The subsequent letter of the 27th of August to Sill & Co. states,
*' when you can obtain 10s. per cwt. on cost, we may be inclined to
sell a few of our sugars," &c. This is a mere communication of specu-
lation and advice from the principal to the brokers, which presumes a
general authority in the brokers, with a desire, on the part of the prin-
cipal, to direct them in the exercise of it. The case of Paterson v.
Tash ^ is not involved in the decision of this : when that case comes
directly before us, we shall take occasion to consider it apart. Look-
ing then at this correspondence (which might perhaps have been more
properly left to the consideration of a jury), we find that there was a
sale of part of these sugars recognized in one instance by the defend-
ant, and that subsequently there was not any positive prohibition against
future sale. Upon the whole, therefore, I think it must be inferred that
Sill & Co. had a general authority to sell, and that the sale made by
them is valid.

Grose, J. I have had considerable doubts on this question as the
argument has gone on : I was inclined at first to think, from the letters
stated in the case, and from finding the defendant constantly speaking
in them of selling at certain prices, that Sill & Co. had not a general
authority to sell ; but upon consideration I think the discretion of the
brokers was left very much at large in the business ; and when that is
the case, it would be very dangerous to hold third persons bound by

1 Ante, p. 253— Ed.

SECT. III.] WHITEHEAD V. TUCKETT. 281

coniiniinications passing behind their back between a principal and his
broker. I think, tlierefore, under these circumstances, that the prin-
cipal was bound h\ tlie acts of the brokers.

Le Blanc, J. The plaintiffs are tlie vendees from Sill & Co. of cer-
tain hogsheads of sugars, for which the}- have paid the value ; the de-
fendant is the person who employed Sill & Co. ; and tlie question is
whether the Court can collect from the circumstances stated that Sill &
Co. had a general authority to sell? In order to determine that ques-
tion, I think the Court is not to look to the correspondence as it relates
to this particular parcel of sugars onh', but as it is connected with all the
circumstances of the case. It appears then that the goods were left with
Sill & Co. for sale ; and althougli they had not a general authority ex-
pressly given to thein by tlie letters, yet that in many instances they
bought and sold for the defendant in their own names, without making
an}' specific appropriation to the separate account of the defendant
either of the moneys received in respect of such sales, or of the moneys
expended on sucli purchases. Thus they appeared acting as general
agents for the defendant ; and upon one occasion in particular (alread}'
alluded to by my Lord), when the defendant received intelligence of
their having sold a lot at a lower price than he intended, instead of
repudiating the bargain as contrary to his instructions, we find him
indeed expressing his sorrow tliereupon, but acquiescing in that which
had been done. Can the court then sa}', after these instances of gen-
eral authority exercised over the goods of the principal, that in this
particular instance the authority of Sill & Co. was controlled, so as to
invalidate a sale made by them to a bond fide purchaser? I think it
cannot, but that under the circumstances we must hold the defendant
to be bound by the general authorit}- thus given to Sill & Co. It is
unnecessar}' to enter into the question whether an agent who exceeds
his authorit}' can bind his principal.

Baylet, J. I think the only conclusion to be drawn from the facts
stated is that Sill & Co. had a general authorit}' to sell, and that it
would be a fraud on the public to hold otherwise. Sill & Co. were
common brokers for the sale of sugars ; and if the defendant suffered
them to bu}' and sell for him in their own names, and thereby to hold
themselves out to the world as the owners of the goods, he must be
taken to have given them a general authorit}-. There was nothing to
designate him as the owner ; neither the bills of sale being in his name
nor the price of the goods sold or purchased carried to his separate ac-
count ; so that in all respects Sill & Co. appeared as the owners. If,
therefore, they have abused the confidence reposed in them, the defend-
ant, who intrusted them, and not the plaintiffs, the innocent purchasers,
must suffer for it. I agree, therefore, that the plaintiffs are entitled to
recover.

Per Curiam, Postea to the plaintiffs.

282 GUERREIRO V. PEILE. [CHAP. IL

GUERREIRO v. PEILE.
King's Bench. 1820.

[3 B. cj- Aid. 616.]

Trover for twenty-five pipes of wine ; plea, not guilty. At the trial
before Abbott, C. J., at the London sittings after Hilary term, the fol-
lowing appeared to be the facts of the case : The plaintiffs, who were
merchants resident at Oporto, in May, 1818, consigned the wines in
question for sale to Burmester and Vidal, who were merchants resident
in London. They employed one White, a broker, to sell the same ; and
he, on the 29th October, b}' their orders, made the two following con-
tracts with the defendants, which were both written on the same sheet
of paper: "Bought 29th October, 1818, for Messrs. Burmester and
Vidal, of Messrs. Sol. Peile and Son, 65 puncheons of Jamaica rum,
of good clear merchantable quality, of average 15 per cent over proof,
4s. Id. per gallon ; coopered and fitted up free on board ; no bill to be
drawn ; the qualit}' to be approved to-morrow. Sold 29th October,
1818, for Messrs. Burmester and Vidal, to Messrs. Sol. Peile and Son,
25 pipes of port wine, vintage 1815, £53 per 138 gallons, housed and
all charges paid ; no bill to be drawn ; but this being considered a barter
transaction for the above 65 puncheons rum, the balance is to be paid
in cash : as these wines have not been tasted by Messrs. Peile and Son,
this contract to be void if not approved of to-morrow." White did not
know that Burmester and Vidal were only factors in this transaction ;
nor was there any evidence to show that the defendants knew that fact.
In pursuance of these contracts, Burmester received the rums, and the
defendants the wines, and a balance was paid to the latter upon the
two transactions. In Februar}', 1819, Burmester and Vidal became
bankrupts, without having accounted to the plaintiflFs for the proceeds
of the wine. White proved that he had been frequently concerned in
similar transactions of barter ; and other witnesses proved that it was
not an uncommon practice among principals to barter one species of
goods for another. It was contended b}' the plaintiff, that Burmester
and Vidal, being merely factors, had authority to sell only in the usual
way for money, but not to barter ; and consequently that b}' these con-
tracts no property had passed to the defendants. The Lord Chief Jus-
tice told the jury that if the}'' were of opinion that Peile & Co. knew
Burmester and Vidal to be factors, they should find for the plaintiff;
and supposing that they did not know that fact, if the jury thought
that this was a transaction in the ordinary course of trade when parties
are dealing with their own commodities, they would find for the de-
fendant. The jur}' found a verdict for the defendant. Scarlett in last
Easter term obtained a rule nisi for a new trial, on the ground that
the factor in this case had exceeded his authority bj- bartering, and

SECT. III.] PECK V. HARRIOTT. 283

consequently that no property passed to the vendor; and he cited
Anoni/7nousy 12 Mod. 514, and Wiltshire v. /Sini.s, 1 Campb. 258.

The Solicitor- General, Gurney, and Puller, now showed cause. The
jury have found that this was a transaction in the usual course of trade ;
and if so, it is clear that the principal was bound. Although this ap-
pears to be a case of barter, it really constitutes two distinct contracts
of sale : a sale of the rums by Peile, and a sale of the wines by Bur-
mester and Vidal.

Abbott, C. J. My learned Brothers think that I ought to have told
the jury upon these facts, that this was a transaction of barter, and
that tlie plaintiff's property was not divested, because a factor has no
authority to barter; and I am also of that opinion. This rule must
therefore be made absolute.

Bayley, J. I am of the same opinion. Burmester and Vidal had
authority only to sell, and that for money, to be forthcoming to the
plaintiffs. But in this case not one farthing of money would ever be
forthcoming to the plaintiffs ; for the amount due for the rums ex-
ceeded the value of the wine.

HoLKOYD, J. I am of opinion that Burmester and Vidal had no
authority to barter. In looking at this transaction we must look at
the real nature of the thing, not at the color given to it by the parties.
If this had been a sale in market overt, the case might have been dif-
ferent ; but that not being so, the principle of caveat emptor applies,
and the person buying is bound by the authority which the person has
who sells. Where a factor sells the goods of his principal, it is his
duty to keep that sale wholly unconnected, and not to mix other mat-
ters with it to the detriment of his principal ; and therefore the rule for
a new trial must be made absolute. Rule absolute}

Scarlett, Marryat, and ParJce, were to have argued in support of
the rule.

PECK V. HARRIOTT.
Supreme Court of Pennsylvania. 1820.

[6 S. tf- R. 146.]

In the Court of Common Pleas of Crawford County, to which this
was a writ of error, a case was stated for the opinion of the Court, to
be considered as a special verdict.^

Selden and Baldwin, for the plaintiffs in error.

Forward, for the defendants in error.

Duncan, J., delivered the Court's opinion.

The plaintiffs in error, being the owners of certain lands in the
counties of Erie, Crawford, Warren, and Venango, on the 17th October,

1 Best, J. was abseut from indisposition. — Rep.

2 The reporter's statement is omitted. — Ed.

284 PECK V. HARRIOTT. [CHAP. IL

1815, constituted one Seth Young, their attorney-, in their names to
contract for sale, sell, and convey* any parts or parcels of the lands,
ratifying and confirming all that their said attorney might lawfully do
in the premises. On the 29th December, in the same year, Young
contracted to sell to the defendants two parcels of the lands. The
vendees covenanted to pay the purchase money in four annual instal-
ments, with interest, and make settlements, and certain specified
improvements on the land. The first instalment became due on the
29th December, ISIG; and in March and April, 1817, the vendees
paid Young three hundred and seventy six dollars fifty cents. By
this article the vendors, bj' their attorney, covenanted, on payment of
the whole or a satisfactory- part of the monej- and interest, within the
specified time, the improvements being completed, that they, or their
representative, would execute a conve3ance, a good and sufficient war-
rantee deed in fee, provided such part}- should, on giving the said deed,
give bond and mortgage on the said premises for the consideration
money, or so much thereof as should be due.

This action was brought for the whole consideration mone}-, and the
question submitted to the Court below was on the validity of the pay-
ments. The Court adjudged they were valid, and on this opinion we
are now called on to decide.

Every general grant implies the grant of all things necessary to the
enjo^-raent of the thing granted, without which it could not be enjo3-ed.
Every general power necessarily implies the grant of every matter
necessary to its complete execution. An attorne}- who has power to
conve}' has so essentially the power to receive the purchase money,
that a voluntar}- conveyance, without receiving the stipulated price or
security for it, would be fraudulent, and either the whole contract
might be rescinded by the principal, or the vendee liable for the pur-
chase mone}-. The principal authority includes all mediate powers
which are necessary to carry it into effect. The pa^'ment of the pur-
chase mone}' was an intermediate act between the articles and the con-
veyance. The receipt of the purchase money is within the general
scope of an authorit}' to sell and convey, as a mediate power, as an
act without which the conve3'ance would be fraudulent. No words
could confer a more ample authority, than is conferred by this instru-
ment. He has power to contract for sale, and having so contracted,
to conve}'. All the acts he performs, necessar}' in the premises, are
ratified and confirmed.

I cannot yield to the argument that, having contracted for sale, his
power ended, because the language of the power is ver}' explicit, that
he has not onh* power to enter into executor}' contracts, but that, hav-
ing entered into them, he has power to execute them by conveyances,
and we must not stop at the words contract for sale, and say, that is a
distinct power, but must go on with the whole sentence, sell and con-
ve}-. Articles are the first step usual in the sale of lands ; the convey-
ance, the last act which the attorne}- is authorized to perform. If h^

SECT. III."] PECK V. HARRIOTT. 285

had conveyed on the receipt of the whole purchase money, it is ad-
mitted that this would have bound the principal. If he had power to
receive the whole, he had power to receive any part, and it surely
lies not in the mouth of the principal to sa}', that because he has
not conveyed, he has no right to receive the mone}- ; for the same
objections would arise, had he received the whole money, and refused
to convey. The validity of the payment does not rest on the actual
conveyance, but the power to convey ; the payment is to precede the
conveyance. There is nothing in the nature of the thing to justif)'
such a construction, nor in the words of the instrument, and it is a
proposition which never can be maintained, that he had only power
to receive the money when he had conveyed, and that it is the con-
veyance which renders the payment valid ; whereas, the conveyance
could onl}- be good if the mone}' were paid, if he had power to
receive the money and convey. If he has received the monej- and
not conveyed, the payment must, in all reason and justice, be binding
on the principal.

That the attorney here did not exceed his authority in making the
contract, is admitted bv this action calling for its execution. If he
did not exceed his authority in making the contract, he had power to
carry it into execution by conveyance. In order to enable him to do
this, payment of the money, or securit}', was so necessary' an incident,
that without it the act would be fraudulent. He had power to con-
vey ; to conve}^ without payment would have been a fraud on the prin-
cipal ; to receive the purchase money could not be a fraud.

It is not pretended that the power was revoked ; much less, that
notice of the revocation before payment was given. It is not made
any part of the case, that there was any fraud on the part of the
defendants.

The power of attorne}' is unrestrained as to time, credit, or condi-
tion. All the authorit}' that the principals could confer, the}' did.
They substituted Young, with all their powers, to part with their title ;
to convey the estate in fee ; to bind them with covenants of general
warrant}-. He could sell on credit, having the power to sell on credit ;
he could receive the money fi'om the vendee, unless there was some-
thing in the instrument restrictive of this. It would be rather an
unusual mode of conducting business, to empower an attorney to sell
and conve}', and restrain him from receiving the purchase mone}-.
Here, he is not so restricted, and the implication would be a con-
strained one ; it would be dangerous for the Court to look for a hidden
meaning, where the terms are neither obscure nor equivocal, or to
impl}' a restriction of a power granted in general terms. The power is
not required to be executed uno jlatu ; there are several acts to be
done, at several times; the last act, the conveyance, not to be imrae-
diatel}' executed, not to be executed until all the conditions were com-
plied with by the vendees. The several payments were to come round ;
and until paid, or a satisfactory part, and mortgage given for the bal-

286 ATTVVOOD V. MUNNINGS. [cHAP. IL

ance, under the general power to contract for sale, and to convej-,
unrestrained as to the extent of authority, unlimited in its duration,
remaining in full force at the time of payment, the Court of Common
Pleas decided rightly, in determining these payments to be valid ; and
the judgment is affirmed. Judgment affirmed.

ATTWOOD AND OTHERS V. MUNNINGS.
King's Bench, 1827.

[7 B. Sf- C. 278.1]

Assumpsit by the plaintiffs, as indorsees, against the defendant, as
acceptor of a bill of excliange for £1,560. Plea, the general issue.
At the trial before Lord Tenterden,C. J., at the London sittings after
Michaelmas term, 1823, a verdict was found for the plaintiffs, subject
to the opinion of this court on the following case.

The plaintiffs were bankers carrying on business in the cit}' of Lon-
don ; the defendant was a merchant engaged in extensive mercantile
business, and also in joint speculations, to a considerable amount, with
Thomas Burleigh, Messrs. Bridges and E^lmer, 8. Howlett, and W.
Rothery. In the year 1815 the defendant went abroad on the partner-
ship business, and remained abroad till after the bill upon which this
action was brought became due. By a power of attorney, dated the
18th of May, 1816, the defendant granted power to W. Rothery, T.
Burleigh, and S. Munnings, his wife, jointly and severally for him, and
in his name, and to his use, to sue for and get in moneys and goods, to
take proceedings, and bring actions, to enforce payment of moneys due,
to defend actions, settle accounts, submit disputes to arbitration, sign
receipts for mone}-, accept compositions; "indorse, negotiate, and
discount, or acquit and discharge the bills of exchange promissory
notes, or other negotiable securities which were or should be payable to
him, and should need and require his indorsement ; " to sell his ships,
execute bills of sale, hire on freight, effect insurances; " bu}', sell,
barter, exchange, export and import all goods, wares, and merchan-
dises, and to trade in and deal in the same, in such manner as should
be deemed most for his interest ; and generally for him and in his
name, place, and stead, and as his act and deed, or otherwise, but to
his use, to make, do, execute, transact, perform, and accomplish all
and singular such further and other acts, deeds, matters, and things as
should be requisite, expedient, and advisable to be done in and about
the premises, and all other his affairs and concerns, and as he might or
could do if personally acting therein." B}' another power of attorney,
dated the 23d of Jul}-, 1817, and executed by the defendant when

1 s. c. 1 M. & R. 66. — Ed.

SECT. III.] ATTWOOD V. MUNNINGS. 287

abroad, he gave to his wife, S. Munnings, power to do a variety of acts
affecting his real and personal property ; '• and also for him and on
his behalf, to pa}' and accept such bill or bills of exchange as should
be drawn or charged on hina by his agents or correspondents as occa-
sion should require, &c. ; and generally to do, negotiate, and transact
the affairs and business of him, defendant, during his absence, as fully
and effectually as if he were present and acting therein." T. Burleigh
corresponded with the defendant, and acted as his agent, both before
and after the receipt of this power. The defendant, while abroad, em-
ployed part of the produce of the joint speculations in his individual
concerns, and during his absence T, Burleigh, for the purpose of rais-
ing mone}- to pay to creditors of the joint concern, who were become
urgent, drew four bills of exchange for £500 each upon the defendant,
dated May 22d, 1819. The proceeds of those bills were applied in
payment of partnership debts ; they were accepted by the defendant b}'
procuration of S. M., his wife. The bill in question was afterwards,
in order to raise money to take up those bills, drawn and accepted in
the following form : " Six months after date pay to m}- order £1,560,
for value received. T. Burleigh. — Accepted per procuration of G. G.
H. Munnings. S. Munnings." This bill was discounted by the plain-
tiffs. The defendant returned to P^ngland in October, 1821, and he,
and each of the partners to the joint speculations, claimed to be a
creditor on that concern.
Parke, for the plaintiffs.
Pollock, contra.

Bayley, J. This was an action upon an acceptance importing to be
by procuration, and therefore any person taking the bill would know
that he had not the security of the acceptor's signature, but of the
party professing to act in pursuance of an authority from him. A
person taking such a bill ought to exercise due caution, for he must
take it upon the credit of the party who assumes the authority to ac-
cept, and it would be only reasonable prudence to require the produc-
tion of that authority. The plaintiff in this case relies on the authority
given by two powers of attorney, which are instruments to be construed
strictly. By the first of the powers in question the defendant gave to
certain persons authority to do certain acts for him, and in his name,
and to his use. It is rather a power to take than to bind ; and, look-
ing at the whole of the instrument, although general words are used, it
only authorizes acts to be done for the defendant singly ; it contains no
express power to accept bills, nor does there appear to have been an
intention to give it ; the first power, therefore, did not warrant this
acceptance. The second power gave an express authority to accept
bills for the defendant, and on his behalf No such power was requisite
as to partnership transactions, for the other partners might bind the
firm by their Acceptance. The words, therefore, must be confined to
that which is their obvious meaning, viz. an authority to accept in
those cases where it was right for him to accept in his individual ca-

288 MARTIN V. GREAT FALLS MANUFACTURING CO. [CHAP. II.

pacity. Besides, the bills to be accepted are those drawn by the defend-
ant's agents or correspondents ; but the drawer of the bill in question
was not his agent quoad hoc. The bills are to be accepted, too, " as
occasion shall require." It would be dangerous to hold that the plain-
tiff in this case was not bound to inquire into the propriety- of accept-
ing. He might easily have done so b}- calling for the letter of advice ;
and I think he was bound to do so. For these reasons, I am of opinion
that judgment of nonsuit must be entered.

HoLROYD, J. I agree in tliinlving tliat the powers in question did
not authorize this acceptance. Tlie word 2^''OCura.tion gave due notice
to the plaintiffs, and they were bound to ascertain, before tliey took the
bill, that the acceptance was agreeable to the autliority given. The
case does not state sufficient to show that this bill was drawn by an
agent in that capacity, but ratlier the contrary ; for it appears tliat it
was drawn to raise money for the joint concern in wliich the drawer
was a partner ; it does not, therefore, come witliin the special power.
Then as to the general powers. These instruments do not give general
powers, speaking at large, but only where they are necessary to carry
the purposes of the special powers into effect.

LiTTLEDALE, J. I am of the same opinion. It is said that third
persons are not bound to inquire into the making of a bill ; but that it
is not so where the acceptance appears to be by procuration. The
question then turns upon the authority given. The first power of
attorney contains an authority- to indorse, but not to accept bills ; the
latter, therefore, seems to have been purposely omitted. Neither is
this varied by the general words, for they cannot apply to any thing as
to which limited powers are given. The second power gives authority
" to accept for me and in m}' name bills drawn or charged on me by
my agents or correspondents, as occasion shall require." The latter
words, as to the occasion, do not appear to me to vary the question ;
and, reading the sentence without them, it authorizes the acceptance
of bills drawn by an agent. The present bill was not drawn b}' Bur-
leigh in his character of agent, and therefore the acceptance was
without sufficient authority', and the plaintiff cannot recover upon it.

Postea to the defendant}

MARTIN V. GREAT FALLS MANUFACTURING CO.

Superior Court of New Hampshire. 1837.

[9 N. H. 51.]

Assumpsit for money had and received.

On the trial, the plaintiff produced the following memorandum in
writing, viz. : " Borrowed of Noah Martin, for the Co., one hundred

1 See Alexander u. Mackenzie, 6 C. B. 766 (1848). — Ed.

SECT. III.] MARTIN V. GREAT FALLS MANUFACTUUING CO. 289

and fifty dollars. C. Cutler. Jan'y 9, 1834." And he proved that, on
the date of the memorandum, Cutler, the signer, who had been in the
employ of the defendants, as a clerk, made application to him, saying
he wanted the mone}' for the company, as they had some settlements
to make, and that it should be returned in a few days ; and that he
thereupon let Cutler have the money, taking the memorandum before
mentioned.

It appeared that one Wells was at the time the general agent of the
com[)auy, I. L. Folsom the general clerk, B. C. Sewell principal clerk
in the counting-room for the cotton business, and that Cutler had been
a clerk in the latter counting-room for some time before the said 9th
of Januar\', 1834, but that for four or five days previous to that date
he had absented himself from his business. It did not appear that tliis
fact was known to the plaintiff. On said 9th da^- of Januar}-, after
borrowing the monej', he al)sconded, and converted the money to his
own use. There was no evidence that Cutler ever had an}' express
authority to borrow money on the credit of the company, or for their
use ; but in order to show that the compan}- were liable for the loan
thus made, the plaintiff introduced ths evidence of Z. Crowell, that
Cutler had several times borrowed money at the store of Crowell (fe
Wingate, which he said was for the company, and which had been
repaid, generally b}' Cutler himself, but that one loan of $500 thus
made, Sept. 13, 1833, for wliich Cutler gave a paper in which the
company's name was mentioned, was repaid by Sewell, and that Sewell
made no objection, at the time of the payment, to the authority of
Cutler to borrow, and the witness never inquired respecting his
authority of any one.

In another instance, six months or a year before he absconded, Cut-
ler borrowed thirty or fort}' dollars of another person, and gave a due
bill, signed with his name and the initials of the company, which was
afterwards presented at the counting room, Sewell and Cutler being
present, and Sewell paid it, no objections being made.

It appeared further, from the testimon}' of Sewell, that he had
charge of paying all the bills in the cotton department; that he
received the money for that purpose from Folsom, the general clerk, to
whom he gave receipts, and that he had authoritv from Folsom to bor-
row money when necessary, and exercised that authorit}', and borrowed
of tlie merchants ; that the usual pay dav was Friday, but that the
laborers sometimes left, and were settled with on other daj's ; that Cut-
ler was a clerk in the same counting room, engaged in keeping the
books, but had nothing to do in the usual course of his business in
pajing out money, nor any authority to borrow, and that he never
intrusted him so to do ; but that Cutler had, perhaps half a dozen
times, in his absence, paid out divers sums to the hands, and witness
on his return accounted and settled with Cutler for the same ; that on
one occasion, which he tliought was in February, 1833, after he had so
accounted and settled with him, Cutler said he had borrowed monc}' of

290 MARTIN V. GREAT FALLS MANUFACTURING CO. [CHAP. IL

Crowell & Wingate during his absence, and he wished witness to take
the mone}- and pay it, which he did ; that he did not know of his hav-
ing borrowed in the name of the company, and did not recollect how
the due bill he took up was signed, but thought it probable it might
have been signed as stated; that in July, 1833, Wells, the general
agent, said to Cutler that he had heard that he had borrowed money
on the credit of the company, and inquired if it was true ; and on Cut-
ler's finally acknowledging that it was, Wells forbid him, and all the
rest of the clerks in the counting room, except himself, from borrow-
ing. It did not appear that the plaintiff had ever lent any money to
Cutler before, or had any knowledge respecting Cutler's borrowing
before, or of the prohibition b}' Wells, as before stated.

Upon this evidence the Court directed a verdict for the defendants,
subject to future consideration.

Marston and Wells, for the plaintiff.

Christie, for the defendants.

Green, J. The evidence clearly fails to show either that Cutler had
a general authorit}' to borrow money on the credit of the company', or
that any particular authority' was given him to obtain the loan which
is the subject of this suit ; and unless the conduct of the defendants
was such as to create a well founded belief in the plaintiff that he had
general or special power for the purpose, the action cannot be sus-
tained. Had Cutler, before the time of effecting the loan in question,
frequently borrowed money of the plaintiff, and given assurances in the
company's name for repayment, and had the company afterwards dis-
charged the debts without objection, this would have afforded ground
for the support of the present action against the companj'. Such a
course of conduct, on the pai't of the company-, must have led the
plaintiff to suppose that Cutler was dulj' authorized to borrow ; and, to
say the least, it would have been unjust in them to refuse affirming his
contract, when he proved unfaithful to his trust. It would, in effect,
be sanctioning the doings of their agent when his measures proved
beneficial, and denying his authorit}- when the}' proved otherwise.

Another state of things might perhaps have given the plaintiff isuffi-
cient grounds for recovery against the company. Had Cutler been in
the habit of borrowing money of any and all the traders in the neigh-
borhood, and pledging the company's name for the payment, and had
the compau}' uniformly discharged those claims without objection, and
had all this been known to the plaintiff when he made the loan in ques-
tion, it is by no means certain that the company* would not have been
answerable.

But the case finds that the loan in question was the onl}' one ever
obtained from the plaintiff in the name of the companj' b}' Cutler ;
and although it is in evidence that Cutler, in one or two instances,
effected loans in the company's name, of other persons, which were
paid by the proper officer of the company, yet it does not appear that
these circumstances were known to the plaintiff, and consequently

SECT. III.] HATCH V. TAYLOK. 291

they could form no inducement to him to make the loan iu question on
the credit of the company.

The company never authorized Cutler to pledge their credit, or
recognized his contracts. The other agents of the company- had not
conferred, and it does not appear that they had power to confer, such
authorit}' on him ; and the payment, by a sub-agent, of monej- bor-
rowed by Cutler, and which came to the use of the company, cannot be
construed as giving him a credit for that purpose. Besides, the plain-
tiff did not loan on the faith of those transactions. The necessary
requisites are, therefore, wanting to charge the defendants, and let
judgment be rendered on the verdict.

Judgment for defendants.^

HATCH I'. TAYLOR.

Sdperiok Court of New Hampshire. 1840.

[10 N. H. 538.]

Trespass, for taking a horse of the plaintiff, on the 5th of March,
1836.

On the trial it appeared that the defendant, in February, 1836, was
the owner of two horses, one black, the other white, usually worked
together ; and that they were hired by one Asa Clark, for the purpose
of drawing a load of goods from Lowell, in Massachusetts, to Thornton,
in this State.

While Clark had the horses in Thornton, he exchanged one of them,
with the plaintiff, for a mare and colt ; the plaintiff supposing that the
horses belonged to Clark. The mare died at Concord, while Clark was
on his return to Lowell. The other horse, with the colt, was taken by
Clark to the defendant, in Methuen, and Clark informed the defendant
of the trade. The defendant refused to sanction it, and told Clark to
take the colt away. Clark soon afterwards took the colt to Derr}- ; one
Emerson, who was present in Thornton when Clark exchanged for the
colt, and the defendant, being with him ; and Emerson there purchased
the colt of Clark, the defendant being present, and making no objection,
but furnishing Emerson, wlio was poor, with money to pay for him.
After this purchase the defendant proceeded, with Emerson, to Kings-
ton, where Emerson exchanged the colt with one Orrin Spofford, for a
mare, the defendant furnishing money to pay the difference. Emerson
sold the mare on the next day to the defendant. Immediatel}' after
^ this the defendant went to Thornton, and took the horse in question
from the possession of the plaintiff, denying the right of Clark to make
any such exchange.

1 Compare Gillman r. Robinson, 1 C. & P. 642 (1825) ; Prescott v. Fliuu, 9 Bing
19 (1832) ; Valentine v. Packer, 5 Pa. 333 (1847). —Ed.

292 HATCH V. TAYLOR. [CHAP. II.

There was evidence, on the part of the plaintiff, tending to sliow that
Clark, when he left Lowell, was empowered b}- the defendant to sell or
exchange this horse. This evidence was derived principally from the
declarations of the defendant, subsequent to the time of the exchange,
and was somewhat contradictory in stating what he had told Clark he
might do respecting a sale or exchange of the horses ; in some instances
denying that Clark had any liberty to trade away the horses ; in others,
admitting that he said to Clark he might sell if he had a chance to sell
both ; and in another stating that he told him he did not intend to have
one of the horses put away without the other, and not to put the horses
away unless he put off both. One witness stated that the defendant,
when he took the horse in question from the plaintiff, in Thornton, said
Clark had no business to trade ; that he told him not to part the span ;
that he told him if he could put them away and get a good five year old
horse and boot enough, he might ; instead of which he had got a little
shark of a colt, and a mare he had not seen, Clark having left her at
Concord, on his way down.

The defendant offered evidence tending to show that he never gave
Clark any authority to dispose of the horses ; or that, if he had any
authority, it was a permission to sell them if he could get a good price,
and could sell both, but not to sell either alone ; and he contended that,
if Clark was empowered to sell, that would not authorize him to ex-
change ; and further, that if Clark was authorized to sell, or exchange,
on condition that he should sell or exchange both, and not otherwise,
his act in disposing of one was void, because not in pursuance of his
authority.

The plaintiff contended, that there was sufficient evidence that Clark
was autkorized to make the exchange ; and further, that the purchase
of the colt b}' Emerson was a pretence, being for the benefit of the
defendant ; and that what was tlius done was a ratification by the de-
fendant of the act of Clark in making the exchange.

The Court instructed the jury, that, when an authority is given to an
agent to make a sale, it must be strictly pursued in order to bind the
principal ; that an authorit}' to sell would not authorize the agent to
barter or exchange, and if he undertook to do so his act would be void ;
but that there was a distinction between an authorit}' to act for the
principal, and instructions as to the mode of executing the authority ;
and that if, in this ease, Clark had authority to sell or exchange both
horses, coupled with directions to dispose of both or neither, and he
disobeyed the instructions in this particular, and exchanged one with-
out the other, that was a matter between him and his principal, and the
principal would be bound b}' his act.

The court further directed the jury, that, if Clark had no previous
authority to make the exchange, the defendant might ratify it after-
wards, and such ratification would bind him ; that his standing by and
seeing Clai-k sell the colt, without taking any part, and making no ob-
jection, would not amount to such ratification ; but that if he had any

SECT. III.] HATCH V. TAYLOR. 293

agency wliatever in the sale of the colt b}- Clark to Einerson, or after-
wards in the exchange of him b}* Emerson with Spotford, that would
amount to a ratification of the contract between Clark and the plaintiff,
and bind the defendant; that it would be a fraud in the defendant to
assist in disposing of the colt, and then claim the horse ; that it was
quite enough that he niiglit be permitted to look on and see Clark sell
the colt, witliout interfering to prevent him ; that if he went beyond
this and took any active agency in disposing of him, he was then bouud
by the exchange whicii Clark had made ; and that in such case, whether
Clark had any previous authoritj- or not, the plaintiff was entitled to
recover.

The jury having returned a verdict for the plaintiff, the defendant
excepted to the foregoing instructions, and moved for a new trial.

JBell and Quhicy, for the defendant.

Bartlett and Rogers^ for the plaintiff.

Parker, C. J. It cannot be known, from the case before us, whether
the jury found that Clark did not exceed his authority in making the
exchange ; or whether the verdict was based upon a ratification of the
transaction h\' the acts of the defendant afterwards. If, therefore,
the instructions to the jury were not substantially' correct upon either
of these points, there must be a new trial.

Thei-e was sufficient evidence to warrant a finding that Clark, when
he received the horses from the defendant, had an authority of some
description given him respecting a sale or exchange of one or both of
them. What this authority was, whether to sell or exchange, and what
were the limitations upon it, or tlie instructions of the defendant rela-
tive to the manner of its execution, did not ver^' clearlj- appear ; the
authorit}- itself having been conferred verball}*, and the evidence estab-
hshing its existence, and what was said about it, being derived mainly
from the subsequent, and in some instances contradictory, declarations
of the defendant himself.

The instructions to the jury take a distinction between the authority
given to an agent, which he is not onlj- bound to pursue in dut\- to his
principal, but a deviation from which will render his act void, (unless
he has been held out, or enabled to hold himself out, as having a differ-
ent authorit}',) and the instructions or directions which he ma}' receive
from his principal, relative to the manner in which he is to execute his
authorit}', which are matters between the principal and agent, so that
a disregard of them by the tatter, although it ma\' make him liable to
the principal, will not vitiate the act, if it be done within the scope of
the authority itself

It is very apparent that such a distinction must exist in some cases
of agenc}', the particular instructions from the principal relative to the
circumstances under which the agent is to act being intended as direc-
tions for his guidance, but not operating as limitations upon the author-
ity which is conferred. Thus in case of a general agent, authorized to
transact all business of a particular kind, although he can bind his em-

294 HATCH V. TAYLOR. [CHAP. IL

plo3'er only hj acts within the scope of his authority, yet that authority
is distinct from private orders or instructions relative to the mode in
which it is to be executed ; and the latter cannot limit or impair the
authority, or affect the rights of a party dealing witli the agent, unless
he had knowledge of such private instructions. The books so uniformly
concur in establisliing tliis principle, that it is unnecessary to cite au-
thorities in support of it. Strangers cannot look to the private commu-
nications that may pass between a principal and his agent. 15 East,
43, 408 ; 5 Bing. 442 (E. C. L. R. 500).

But whatever was the extent of Clark's authorit}- in the present case,
he was not a general, but a special agent, authorized to make a sale, or
exchange, of one or two horses onl}- ; and the question arises how fai
the same rule is applicable to agencies of that character.

To a very considerable extent the principles applicable to general
agencies apply also to those of a special and limited character. Thus
the general principle, that the acts of the agent, within the scope of his
authority, bind his employer ; and that his acts beyond that point are
void, unless the principal has held him out, or enabled him to hold
himself out, as having more enlarged powers than he actually pos-
sessed, or unless the employer ratifies his acts, is applicable to all
classes of agencies.

It is contended, however, that the distinction between authorit}' and
instructions does not apply in cases of special agents ; and the defend-
ant's counsel rely particularly upon a treatise on Agenc}', recentl}'
published, which, it must be admitted, in some measure sustains their
position. Speaking of the nature and extent of the authority of agents,
the author refers to " the distinction commonly taken between the case
of a general agent, and that of a special agent ; the former being ap-
pointed to act in his principal's affairs generally', and the latter to act
concerning some particular object;" and says: "In the former case
the principal will be bound by the acts of his agent within the scope
of the general authorit}'^ conferred on him, although he violates by
those acts his private instructions and directions, which are given to
him by the principal, limiting, qualifying, suspending or prohil)iting
the exercise of such authority' under particular circumstances. In the
latter case, if the agent exceeds his special and limited authority con-
ferred on him, the principal is not bound b}' his acts ; but they become
mere nullities so far as he is concerned ; unless, indeed, he has held
him out as possessing a more enlarged authority." Story on Agency,
115. The phraseolog}- of this last clause is similar in substance to that
of other elementarj' writers. 2 Kent's Com., Lecture 41 ; 1 Livermore
on Agency, 108. Taken strictly, as it stands, there can be no doubt
of the correctness of the rule. If a special agent exceed his special
and limited authority, without doubt the principal is not bound b}' his
acts, unless he has held him out, or enabled him to hold liimself out,
as possessing a more enlarged autliority. But from its connection with
the preceding clause, and from its general connection with the con-

SECT. III.] HATCH V. TAYLOR, 295

text, this clause is understood as asserting tliat if a special agent ex-
ceeds the special and limited private instructions or directions which
are given him by the principal, limiting or qualifying, suspending or
prohibiting the exercise of his agency under particular circumstances,
the principal will not be bound, unless he has held the agent out as
possessing a more enlarged authority than the right to act, coupled
with the instructions, would give him. In other words, that instruc-
tions or directions to a special agent, notwithstanding they are private
or secret, if intended to operate upon, and limit, qualify, suspend, or
prohibit the action of the agent under certain circumstances, become
part and parcel, and of the essence of the authority itself, so that the
agent will not be acting within the scope of his authority, or apparent
authority, if he disregard them. So it seems to be understood by the
defendant's counsel ; and upon a subsequent page it is stated that if
a common person, not a factor, should be emploj-ed to make a sale,
"and he should violate his private instructions, and deviate from his
authority in the sale, the principal would not be bound." Story on
AgentT, 122.

If this is so, there can be, ordinarih', no such thing as instruc-
tions, contradistinguished from authority, in the case of a special
agent ; as whatever directions he receives respecting the mode and
manner in which he is to perform his duties will partake of the nature
of authority", or qualification of authority, and limit or suspend his
right to act, and to bind the principal, unless there has been some
holding out of the agent as having an authority beyond the import of
such directions.

But it is, we think, apparent enough, that all which ma}' be said to
a special agent, about the mode in which his agency is to be executed,
even if said at the time that the authority is conferred, or the agency
constituted, cannot be regarded as part of the authority itself, or as a
qualification or limitation upon it. There mav be at all times, upon
the constitution of a special agenc}", and there often is, not only an
authorit}- given to the agent, in virtue of which he is to do the act
proposed, but also certain communications, addressed to the private
ear of the agent, although they relate to the manner in which the
authority is to be executed, and are intended as a guide to direct its
execution. These communications may, to a certain extent, be in-
tended to limit the action of the agent ; that is, the principal intends
and expects that the}' shall be regarded and adhered to in the execu-
tion of the agency ; and should the agent depart from them he would
violate the instructions given him by the principal, at the time when
he was constituted agent, and execute the act he was expected to per-
form in a case in which the principal did not intend that it should be
done. And yet in such case he may have acted entireh' within the
scope of the authority given him, and the principal be bound by his
acts. This could not be so, if those communications were limitations
upon the authority of the agent. It is onl}' because they are not to be

296 HATCH V. TAYLOR. [CHAP. IL

regarded as part of the authorit}- given, or a limitation upon that au-
thority, that the act of the agent is valid, although done in violation of
them ; and the matter depends upon the character of tlie communica-
tions thus made b}' the principal, and disregarded by the agent. Thus
where one person employs another to sell a horse, and instructs him to
sell him for $100, if no more can be obtained, but to get the best price
he can, and not to sell him for less than that sum, and not to state how
low he is authorized to sell, because that will prevent him from obtain-
ing more, such a private instruction can with no propriety be deemed
a limitation upon his authorit}' to sell ; because it is a secret matter
between the principal and agent, which any person proposing to pur-
chase is not to know, at least until the bargain is completed. And if
no special injunction of secrecy was made, the result would be the
same ; for from tlie nature of the case such an instruction, so far as
it regards the minimum price, must be intended as a private matter
between the principal and agent, not to be communicated to the
persons to whom he proposed to make a sale, from its obvious ten-
dency to defeat the attempt to obtain a greater sum, which was the
special duty of the agent. It will not do to sa}- that the agent was
not authorized to sell, unless he could obtain that price. That is the
very question, whether such a private instruction limits the authority
to sell.

It seems very clear that any one who proposes to deal with a special
agent has the right, in the first place, to know what authority he pos-
sesses, and all the limitations upon it. He deals with him at his peril,
because he is bound to inquire into the nature and extent of the author-
ity conferred. Snow v. Perry, 9 Pick. R. 542 ; Schimmelpennick o.
Bayard, 1 Peters' S. C. R. 264 ; Storj' on Agency, 124.

The principal is not to be bound by the acts of the special agent
beyond what he has authorized, because he has not misled the confi-
dence of the part}- dealing with him, or enabled the agent to practise
any deception ; has never held the agent out as having an}' general
authorit}' whatever in the premises ; and if the other party trusts with-
out inquiry, he trusts to the good faith of the agent, and not to that of
the principal. Stor}', 125.

But to what purpose is the part}- dealing with the agent to inquire
respecting that which he is not to know, and what duty exists upon
him to know that which by the express direction of the principal, or
from the nature of the case, is to be concealed from him ? Or how can
it be said that he trusts the agent, respecting the limit at which he is
authorized to sell, or purchase, when, if lie asks respecting that limit,
the principal has precluded him from ascertaining what it is? \yho,
in fact, places confidence in the agent in a case like that above stated,
and who has enabled the agent to practise deception, if deception takes
place ?

So far as a party dealing with a special agent is bound to inquire
respecting his authority, so far he is entitled to a definite and distinct

SECT. III.] HATCH V. TAYLOR. 297

answer. And so far as he is bound to inquire and to know, it is bad
faitli and fraud to conceal an3thing from liim. But would it be deemed
bad faith in the agent to say nothing as to the price at which he was
instructed to sell, if the market would afford him no better? It may
very safel}^ be asserted that this is not usually practised, either b}-
general or special agents ; and a great change in the ordinary- mode of
dealing must take place before the morality of contracts could be con-
sidered as requiring such a disclosure. It would certainly- not be
required of the owner of property, in making a sale, to state what was
the lowest price he had determined to receive, if the part}' propos-
ing to purchase would give no more ; and it is as little expected of an
agent, who is employed to get the best price he can obtain, but directed
not to sell for less than a certain sum.

So in the case of a person employed to purchase, if the employment
be to purchase an article at the best possible price, with private direc-
tions that he may give a certain sum, but no more. The permission to
give this sum, and the direction not to exceed it, are not ordinarily- to
be communicated to those with whom he negotiates for a purchase,
although intended to control the action of the agent himself. The
employer trusts the agent.

No man is at liberty to send another into the market to buy or sell
for him as his agent, with secret instructions as to the manner in which
he shall execute his agency, which are not to be communicated to those
with whom he is to deal ; and then, when his agent has deviated from
those instructions, to sa}' that he was a special agent ; that the instruc-
tions were limitations upon his authority ; and that those with whom
he dealt in the matter of his agenc}- acted at their peril, because thej'
were bound to inquire, where inquirj- would have been fruitless, and to
ascertain that of which the}' were not to have knowledge. It would
render dealing with a special agent a matter of great hazard. If the
principal deemed the bargain a good one, the secret orders would con-
tinue sealed ; but if his opinion was otherwise, the injunction of secrec}'
would be removed, and the transaction avoided, leaving the party to
such remedy as he might enforce against the agent.

From this reasoning we deduce the general principle that where
private instructions are given to a special agent respecting the mode
and manner of executing his agenc}', intended to be kept secret, and
not communicated to those with whom he may deal, such instructions
are not to be regarded as limitations upon his authority- ; and notwith-
standing he disregards them, his act, if otherwise within the scope of
his agenc}', will be valid, and bind his employer.

It is unnecessary to multiply instances in which the principle is
applicable. It may be added, that instructions which are not to be
communicated to the other party are, justly, no more to be regarded
as limitations upon the authority of the agent, than instructions not to
sell unless the agent can obtain a good price, or not to purchase with-
out he can obtain the propert}' cheap ; or, as stated by some of the

298 HATCH V. TAYLOR. [CHAP. II.

evidence in this case, not to exchange "unless he could get a good
five year old horse, and boot enough ; " in which cases the instruction
is not a limitation upon the authority, and the transaction to be held
void unless the principal, or a jury, should consider that the agent had
complied with the direction. The principal in such cases trusts the
agent, who has a discretion in the matter, (Hicks v. Hankin, 4 P2sp. R.
114,) and it would be most mischievous to hold such direction as a
condition, upon a compliance with which depended the vaUdity of
the act.

It ma}^ be otherwise if the principal directs his agent to offer his
horse for sale at the sum of $100, and to take no less ; or to purchase
ten bales of cotton, if to be had at a certain sum, and to give no more ;
for in those cases the whole matter would be open to the knowledge of
an}- one proposing to purchase, or sell, and the direction may stand as
part and parcel of, and a limitation upon, the authority itself.

The view we have thus taken is strongly supported by the doctrine
in relation to agencies, where there is a written authority. Mr. Justice
Stor}-, in another part of his work, speaking of agencies of that descrip-
tion, says : " We are, however, carefully to distinguish, in all such
cases, between the authoritj' given to the agent, and the private in-
structions given to him as to his mode of executing that authority.
For, although where a written authorit}' is known to exist, or is, by
the very nature of the transaction, presupposed, it is the dut}' of per-
sons dealing with the agent to make inquiries as to the nature and
extent of such authorit}', and to examine it ; 3'et no such duty exists
to make inquiries as to any private letter of instructions from the
principal to the agent ; for such instructions may well be presumed
to be of a secret and confidential nature, and not intended to be
divulged to third persons. Indeed, it maj- perhaps be doubted if
upon this subject there is any solid distinction between the case of a
special authority to do a particular act, and a general authority to do
all acts in a particular business. Each includes the usual and appro-
priate means to accomplish the end. In each case the party ought
equally to be bound by the acts of his agent, executing such authority
by any of those means, although he may have given to the agent sepa-
rate, private, and secret instructions of a more limited nature." Story
on Agency, 70. But he adds, in a note, " The case intended to be put
in the text is that of an authority distinct, and not derived from, the
instructions ; for, if the original authoritj' is restricted and qualified,
the restrictions and qualifications constitute a part of the power itself,
and govern its extent."

It is undoubtedly true that "if the original authority is restricted
and qualified, the restrictions and qualifications constitute a part of the
power itself, and govern its extent." But the question is, when is it
so restricted and qualified ; and it is not eas}- to distinguish the differ-
ence in principle between a written authority-, with a private letter of
instructions of a secret and confidential nature, and not intended to be

SECT, in.] HATCH V. TAYLOR. 299

divulged, and a verbal authority, with verbal instructions of a secret
and confidential nature, whicli also are not intended to be divulged.

There is another view of the case, which perhaps ought not to be
oniitted, leading to the result at which we have already arrived. In the
case of general agents, the principal will be bound by the acts of his
agent, within the scope of the general authority conferred upon him,
although he violates by these acts his private instructions and direc-
tions. He is acting within the scope of his authority, or apparent
authority. So a special agent who has private instructions for his
government, but which are not to be communicated to those dealing
with him, is acting within the scope of his authoritv, or apparent
authority, when he is acting within the scope of what he is to commu-
nicate, and what only the party dealing with him is authorized to
know, or is to know if he inquires.

In fact, there seems to be, in such case, a holding out of the agent,
or an authorization to him to hold himself out, as having an authorit}'
beyond the private instructions intended to limit his action upon the
subject matter ; and upon that principle the employer should be bound.
" The principle which pervades all cases of agenc}-, whether it be a
general or special agenc}-, is this : The principal is bound by all acts of
his agent within the scope of the authority which he holds him out to
the world to possess ; although he may have given him more limited
private instructions unknown to the persons dealing with him." Story,
118, note. " For I am bound b}- the contracts which m}- agent makes
in my name, if the}- do not exceed the power with which he was
ostensibly invested ; and it will not avail me to show that I have given
him secret instructions to the contrarv, which he has not pursued."
1 Livermore on Agency-, 107. When the principal sends his agent
into the market with directions to sell for him ten bales of cotton, or a
horse, and says to him that he ma}' sell for a certain sum, if he cannot
obtain more, but not to sell for less than that, and to get as much more
as he can, he has not onl}' enabled, but directed, the agent to hold him-
self out as having authorit}' to sell. That matter is to be communicated
to an}' one to whom he proposes to make a sale ; and he is acting within
the scope of the authority, which he is thus held out as possessing,
when he makes the sale, notwithstanding he may disregard the secret
limit upon the price which he was directed to require.

It is believed there is little in the cases conflicting with the views
DOW expressed. In some of them there is a mere statement of the
general principle, that if a special agent exceed his authority, his act is
void. In others, the instruction was not private, or there was a clear
excess of authority. 2 Kent's Com. 484, Lect. 41 ; Jeflfrey v. Bigelow,
13 Wend. R. 520 ; Rossiter v. Rossiter, 8 Wend. R. 494 ; Munn v. The
Commission Co., 15 Johns. R. .')4 : Andrews v. Kneeland, 6 Cowen's R.
357 ; 1 Peters" S. C. R. 264 ; 9 Pick. R. 542 ; Denning f. Smith, 3 Johns.
Ch. R. 344 ; Fenn v. Harrison, 3 D. & E. 760 ; East India Co. v. Hens-
ley, 1 Esp. R. 112 ; Runquist v. Ditchell, 3 Esp. R. 65 ; Batty v. Car*

300 HATCH V. TAYLOR. [CHAP. II.

well, 2 Johns. R. 48 ; Gibson v. Colt, 7 Johns. R. 390 ; Beals v. Allen,
18 Johns. R. 3G3 ; Thompson v. Stewart, 3 Conn. R. 183. Sed vide
11 Wend. R. 90; 15 East, 467.

In the present case, there was some contradiction in the evidence,
whether any authority was given to Clark ; or if any was given, what
it was. It became necessary, of course, to submit a question upon that
to the jury. And from the uncertainty respecting what was said by
the defendant, and how it was said, it was also left to the jury to lind,
in case an authority was given, how far it extended, and whether what
was said about not parting with one horse unless both were disposed of,
was said in a way to be a limitation upon the authority, or as mere
instructions and directions. It does not seem to have appeared, dis-
tinctly, whether what was said about disposing of one only, if anything
of that kind was in fact said, was a private direction to Clark, or was
in fact incorporated into, and part of, the authority itself. If Clark had
an authority to exchange, and the defendant told him, as he himself
afterwards stated, " not to part the span," but ''• if he could put them
away, and get a good five-year-old horse, and boot enough, he might,"
this declaration, so far as it relates to a good horse, and boot enough,
cannot be held to be a limitation on the authority ; and if tliis is
regarded as instructions, what was said in connection with it, about
parting the span, might well partake of the same character. The
principle now settled, that whatever is not to be communicated to the
person with whom the agent may deal, is not to be regarded as a limi-
tation upon his authority, was not adverted to. But no objection is
taken that the matter was not properl3' submitted to the jur}', on the
evidence before them, if there may be instructions to a special agent,
given at the same time with the authority, which are not limitations
upon his authority to execute the agenc}', but private directions, in-
tended to limit his action in the matter, and a disobedience of which
may make him liable to his principal, but will not avoid the act done.
It is apparent that in some cases the evidence may be of such a charac-
ter that it must be submitted to a jury to determine, in effect, how far
the authority, so called, extended, by finding what in fact was said by
the principal, and what was intended as mere private instructions to the
agent ; and this seems of that description. On the view we have taken,
therefore, there is nothing in the instructions upon this point on which
to set aside the verdict.

The instructions to the jury respecting a ratification were fully war-
ranted by the evidence reported. That evidence is quite sufficient to
authorize a belief that when the colt was sold, and the defendant fur-
nished the money to make the payment to Clark, and when he was
afterwards exchanged b}' Emerson with Spoff'ord for the mare, and he
furnished the money to pay the difference, Clark and Emerson were
puppets in his hands, moving as ho pulled the wires. Emerson was
poor, and the mare was immediately sold, as it was called, to the
defendant. Upon this part of the case the jur}- ought to have found for

SECT. III.] HAWTAYNE V. BOURNE. 301

the plaintiff, if there had been no evidence of an}- previous authority in
Clarlv to malve the exchange. 1 Liverniore on Agenc}-, 45 ; Codwise
V. Hacker, 1 Caines' R. 520 ; Ward v. Evans, 2 Salli. 442 ; Story on
Agency, 247, and authorities cited. Having been active in the sale
of the colt, the defendant's declaration that he would not sanction
the trade cannot avail him. Cornwall c. Wilson, 1 Livermore, 395 ;
1 Ves. Sr. oOy. Jadgment on the verdict.

HAWTAYNE v. BOURNE.
Exchequer. 1841.

[7 M. Sf- W. 595.]

Debt for money lent, and on an account stated. Plea, ntinqnam in-
debitatus. At the trial before Maule, J., at the last Cornwall Assizes,
the following appeared to be the facts of the case : —

The defendant, who resides at Liverpool, was the holder of 100
shares in a company established for the working of a mine called the
Trewolvas Mine, in the parish of St. Cohimb Major, Cornwall. The
mine was managed by an agent, appointed by the directors of the com-
pany for that purpose. In March, 1839, in consequence of the share-
holders not having paid up the calls regularly, the concern fell into
difficulties, and the agent, from want of funds, became unable to pay
the laborers: a considerable number of whom, their wages being in
arrear, applied to the magistrates, and obtained warrants of distress
upon the materials belonging to the mine. The agent, finding that
these warrants were about to be put into execution, applied in the name
of the compan}-, but in fact upon his own responsibility, and without
the knowledge of the shareholders, to the St. Columb Branch of the
Western District Banking compan}-, for a loan of £400 for three
months, which was advanced accordingly, and placed b}- the bank to
the credit of the corhpany, and out of it the arrears of wages were
discharged. To recover the balance of that sum the present action
was brought. There was some evidence of a conversation between the
defendant and the agent, in which the former had asked whether they
could not get money from the bank to keep the concern going: but
this evidence was not left to the jur}'. The learned judge, in summing
up, stated to the jur}', that although under ordinar}' circumstances an
agent could not, without express authorit}', borrow mone}' in the name
of his principal, so as to bind him, ^et if it became absolutely neces-
sary to raise money in order to preserve the property- of the principal,
the law would imph' an authority in the agent to do so, to the extent
of that necessity ; ^nd he left it to the jury to sav whether the pressure
on the concern was such as to render the advance of this monc}- a case
of such necessity. The jury found for the plaintiff.

302 HAWTAYNE V. BOURNE. [CHAP. II.

In Michaelmas Terra, Erie obtained a rule nisi for a new trial, on
the ground of misdirection.

Bompas, Sergt., and Cockburn., now showed cause.
Crowder (with whom was Erie), in support of the rule, was stopped
by the court.

Parke, B. This is an action brought by the plaintiffs, who are
bankers, to recover from the defendant, as one of the proprietors of
the Trewolvas Mine, a mine carried on in the ordinary way, the balance
of a sum of £400, advanced by them to the agent appointed by the
company of proprietors for the management of the mine. Now the
extent of the authority conferred upon the agent by his appointment
was this only, — that he should conduct and carry on the affairs of the
mine in the usual manner ; there is no proof of express authority to
borrow money from bankers for that purpose, or that it was necessary
in the ordinary course of the undertaking ; and certainly no such au-
thority could be assumed. There are two grounds on which it is said
the defendant may be made responsible : first, on that of a special au-
thority given to the agent to borrow money ; and secondly, on the
assumed principle, that every owner who appoints an agent for the
management of his property must be taken to have given him authority
to borrow money in cases of absolute necessity. Tiiere certainly was,
in the present case, some evidence from which a jury might have
inferred that a power to borrow money, for the purposes of the mine,
had been expressly given to the agent ; but that evidence does not ap-
pear to have been left to the jury, and therefore the verdict cannot be
supported on the first ground. Then as to the second ground, it ap-
pears that the learned judge told the jury that they might infer an
authority' in the agent, not only to conduct the general business of the
mine, but also, in cases of necessity, to raise money for that purpose.
I am not aware that an}' authoritj- is to be found in our law to support
this proposition. No such power exists, except in the cases alluded to
in the argument, of the master of a ship, and of the acceptor of a bill
of exchange for the honor of the drawer. The latter derives its ex-
istence from the law of merchants ; and in the former case the law,
which generally' provides for ordinar}- events, and not for cases which
are of rare occurrence, considers how likely and frequent are accidents
at sea, when it may be necessary, in order to have the vessel repaired,
or to provide the means of continuing the voyage, to pledge the credit
of her owners ; and therefore it is that the law invests the master with
power to raise money, and, b}' an instrument of hypothecation, to
pledge the ship itself if necessary. If that case be analogous to this,
it follows that the agent had power not only to borrow money, but, in
the event of securit}" being required, to mortgage the mine itself. The
authority of the master of a sliip rests upon the peculiar cliaracter of
his office, and affords no analogy to the case of an tordinary agent. I
am therefore of opinion that the agent of this mine had not the au-
thority contended for. Whether he had or had not, was a question for

SECT. III.] NORTH RIVER BANK V. AYMAR. 303

the juiy ; but, on the general principles of law, it seems to me that the
ruling of the learned judge cannot be supported, and therefore that the
rule for a new trial must be made absolute.

Alderson, B. I am of the same opinion. There is no rule of law
that an agent ma}', in a case of emergency suddenly arising, raise
money, and pledge the credit of his principals for its repayment; and
even if it were so, in this instance tliere was ample time and opportu-
nity for him to have applied to his principals. Several cases have been
cited as analogous to the present, but they have been alread}' satisfac-
torily distinguished by mj- brother Parke. Lamb v. Bunce, 4 M. & S.
275, ma}' appear to be a case similar to the present, but it is very dis-
tinguishable, for there is an original liability in parish officers to support
the poor in their parish ; and it appears, moreover, that the parish
officers in that case were aware of the surgeon being in attendance on
the pauper, and made no objection. Those were circumstances from
which a jur}' might well infer a contract on their part to paj' his bill.
In the present case there was no such evidence.

RoLFE, B., concurred. Rule absolute.^

NORTH RIVER BANK v. AYMAR.

Supreme Court of New York. 1842.

[3 Hill, 262.]

Error to the Superior Court of the city of New York. The action
in the court below was b}' the North River Bank against Aymar and
Embur}', executors, &c., of Pexcel Fowler deceased, on eleven promis-
sory notes ; six of which purported to have been made on behalf of the
defendants' testator, and were signed thus: " Pexcel Fowler — Jacob
D. Fowler, att'y." Of these six notes, four were payable to the order
of David Rogers & Son, and by them indorsed ; and the other two
were payable to the order of Jacob D. Fowler, and were indorsed by
him, and by D. Rogers & Son. The remaining five notes purported to
have been made by Jacob D. Fowler, payable to the order of Pexcel
Fowler, and were indorsed in the same form in which the other six
notes were signed — viz. : " Pexcel Fowler — Jacob D. Fowler, att'y"
— and were also indorsed by D. Rogers & Son. The case, as it
further appeared on the trial, was this : The defendants' testator, in
his lifetime, executed to Jacob D. Fowler a letter of attorney in these
words: "Know all men, &c., that I, Pexcel Fowler, of, &c., have
made, &c., Jacob D. Fowler, of, «&c., my true and lawful attorney, for

1 As to the authority of the master of a ship to pledge the owner's credit, see
Arthur v. Barton, 6 M. & W. 138 (1840) ; Beldon v. Campbell, 6 Ex. 886 (1851).

As to emergencies, compare Toledo, St. L., & K. C Railroad Co. v. Mylott, 6 Ind
App. 438 (1893). — Ed.

304 NORTH EIVEU BANK V. AYMAR. [CHAl'. II.

me and in my name, place, and stead, and to my use, to ask, demnnd,
&c., all such sum and sums of money, debts, &c., which are or shall be
due, owing, &c., to me, &c. I do further authorize and empower the
said Jacob D. Fowler to draw all checks or drafts upon any of the
banks in the city of New York for all moneys deposited in my name,
to indorse any promissory note or notes, bills of exchange or drafts, to
accept all bills of exchange or drafts, or in my name to draw any note
or notes, to enter merchandise at the custom house, &c., and to manage
and negotiate any business from time to time in the same manner as if
I was personally present. Giving and granting unto m}' said attorney
full power and authority in and about the premises, &c. In witness,"
&c. About the time this power was executed, Pexcel Fowler and
Jacob D. Fowler called together at the banking-house of the plaintiffs
and left it in their possession, where it had ever since remained. The
notes in question were all made during the life of the defendants' testa-
tor, and after the execution of the power. Nine of them were not
made or indorsed in the business of the defendants' testator, nor for
his use or benefit, but for the accommodation of David Rogers & Son,
under an agreement between them and the firm of Fowler, Gordon, &
Co. (of which Jacob D. Fowler was a member) for the mutual exchange
of accommodation paper. Fowler, Gordon, & Co. failed in business,
leaving unpaid a large number of notes made and indorsed under this
agreement, on which D. Rogers & Son were liable, and which had
been discounted b}' the plaintiffs. The notes in question were procured
by D. Rogers & Son for the purpose of relieving themselves from such
liability, and were passed b}- them to the plaintiffs in exchange for the
said notes of Fowler, Gordon, & Co. At the time the notes in question
were received by the plaintiffs, Samuel D. Rogers, a member of the
firm of D. Rogers & Son, and who was also one of the directors of the
bank, declared the notes to be business paper, given for goods sold.
The defendants admitted that the plaintiffs were entitled to recover on
two of the eleven notes ; and, in respect to the others, the court charged
the jury that Jacob D. Fowler exceeded his authority, — that the power
being special, the plaintiffs were aflTected b}' the excess, and were not
therefore entitled to recover. The plaintiffs excepted. The jury ren-
dered a verdict for the amount of the two notes in favor of the plain-
tiffs, who, after judgment, sued out a writ of error. Some other facts
necessar}- to a more full understanding of the case will be found stated
in the following opinions.

S. G. Raymond^ for the plaintiffs in error.

J. W. Gerard, for the defendants in error.

CowEN, J. As the notes in question were received b}' the plaintiffs
in exchange for the notes of Fowler, Gordon, & Co., the former are
entitled, so far as their rights are in question on this writ of error, to
be considered bona fide holders in the fair course of trade and for a
valuable consideration.

That the power conferred by the letter of attorney was limited to

SECT. III.] NORTH KIVEK BANK V. AYMAK. 305

notes in the proper business of the testator, and that it would have
been so independently of the words to his use, there can be no doubt.
Stainer v. Tysen, 3 Hill, 279 ; Nichol v. Green, Peck's Eep. 283 ;
Butclier v. Tysen, U. S. Circ. Court, Nov. 1840, 4 Hunt's Merch. Mag.
456. To fulfil this purpose of the power, it was essential that the
making and indorsing should be upon a consideration passing to
Pexcel Fowler, the testator. There is nothing in the nature or effect
of such a power which authorizes the attorney' to use it for his own
benefit or the benefit of any one excepting the principal. And if this
limitation be such that an appointee would be bound to notice the fact
that the attorney overstepped it, then these plaintiffs were properly cut
off by the court below from their claim upon the contested notes and
indorsements.

The general rule, that when an attorney does an}' act beyond the
scope of his power, it is void even as between the appointee and the
principal, has always prevailed, and is indeed elementary in the doc-
trine of powers. The ground on which the rule rests is familiar. The
appointee need not deal with the attorney unless he choose ; and it is
very reasonable that he should be bound to inspect the power, when in
writing, or to learn its language in the best wa}- he can, when it is by
parol. On becoming acquainted with it, he shall be holden to under-
stand its legal effect, and must see, at his peril, that the attorne}" does
not transgress the prescribed boundary- in acting under it. I sa}' in
acting under it ; for it is eas}- to compare the act with the words to
which it must conform ; and so far, there is nothing unreasonable, —
nothing impossible or even difficult. In speaking of the attorney's acts,
I certainl}' mean to include his declarations made at the time, or in the
business which he transacts under the power ; for his declarations are
a part of the res gestoe, and bind his principal equall}' with the act to
which the}' relate. They are always received as evidence against the
principal. I authoi'ize a man to borrow a sum of mone}' for me. The
power being limited, he has no authorit}' to borrow for himself or his
neighbor. He goes to the lender and borrows in my name, showing
him my written power, and declaring at the same time that he takes
the loan on my account. Both his acts and declarations are evidence
against me.

A question often arises upon this and the like cases, how far the
appointee is responsible for the agent's fidelity. Take it, in the in-
stance supposed, that his acts and professions make out a case within
the terms of his authority ; is the man who advances his money account-
able for the truth or the good faith of a transaction which, so far as he
can see and has reason to believe at the time, is in honest conformity
with such authority? Take it that the attorne}' comes with a falsehood,
meaning the loan for his own use, or the use of another whom he
desires to accommodate ; must the appointee lose his money? He brings
his action against the principal, and proves the letter of attornej' and
the loan as stated ; is it necessar}' to do more ? or can the principal

306 NORTH RIVER BANK V. AYMAR. [CHAP. II.

turn round upon him and show that his attornej' was false to his in-
terest, and so infer that the man who trusted to his letter and made a
loan apparently according to its purview, must himself be visited with
the consequences of the fraud? I confess that, until I heard the argu-
ment in this cause, I had supposed the mere statement of such a case
furnished its own answer ; and that to allow such a defence would be
pushing the duty of inquiry on the part of the appointee far beyond
the principle on which it is founded, — indeed to an extent absolutely
impracticable.

The case I have instanced is, in principle, the one now before us.
The plaintiffs were apprised that Jacob D. Fowler had power to make
and indorse notes in the business of the testator ; and notes actually
made and indorsed bj' the attorne}', and purporting to have been so
made and indorsed in conformity with the power, were presented to
and, in effect, discounted by the plaintiffs. This act was equivalent to
an express declaration that the notes were made and indorsed in the
business of the testator. A man gives a power to sell land, and the
attorne}' executes a deed in the name of the principal. The transac-
tion imports the same thing as a recital or express declaration referring
to the power ; and the principal is equally estopped to deny that the
authority has been pursued.

There are a few general principles entirely settled and universally
acted upon, especiall}' in dealing with negotiable paper, which it may
be well to remember. One was laid down in Hern v. Nichols, 1 Salk.
289. The defendant's factor, being authorized to sell silk, defrauded
the vendee; and Holt, C. J., held, that the principal was liable
for the deceit ; " for," said he, " seeing somebody must be a loser bj'
this deceit, it is more reason that he that employs and puts a trust and
confidence in the deceiver, should be a loser than a stranger." See
also Bowles v. Stewart, 1 Sch. & Lef. 222 ; The Monte Allegre, 9
Wheat. 644. An application of this principle to men who had author-
ized an agent to indorse for them, was made in Putnam v. Sullivan,
4 Mass Rep. 45 ; a case coming very near if not quite up to the one
before us. The defendants, who were merchants, having occasion to
be absent, left their names with a clerk on blank paper, to be filled up
by him and advanced on the sale of goods by the house upon commis-
sion, or to renew the notes of the house when due at the banks. On
some he was authorized to bind them as makers, and on others as
indorsers. A man obtained one of the latter from the clerk by false
pretences, wrote and signed a note on the other side, and got money
upon it for his own use on the credit of the indorsement, the lenders
having no notice of the fraud. The defendants were held liable. The
plaintiffs were informed too that it was a blank indorsement which had
been left with the clerk, to be used in the business of the defendants.
Parsons, C. J., said : " Here one of two innocent parties must suffer.
The indorsees confided in the signature of the defendants ; and they
could have no reason to suppose that it had been improperly obtained.

SECT. III.] NORTH RIVER BANK V. AYMAR. 307

On the other hand, the loss has been occasioned by the misplaced con-
fidence of the indorsers in a clerk too young or inexperienced to guard
against the arts of the promisor." Looking at the fact that the plain-
tiffs knew the clerk was limited to use the note in the business of his
principals, the power was the same in respect to them, as that of Jacob
D. Fowler here in respect to the bank. They found, as the bank did,
that the agent had delivered out the note to the promisor, but not that
he had exceeded his power, though he had done so in fact. Why not
require them to stop and ascertain whether it had been delivered out
upon a consideration passing to the defendants? The answer is, that
they had put their agent in a condition which enabled him to impose
upon strangers by apparently pursuing his authorit}-. The}- had given
him a discretion to speak for them, both bj- words and actions. The
neglect or falsehood of their agent, therefore, was legall}- imputable to
them. The paper being issued without consideration, whether by their
agent or themselves, was indeed void as between the original parties ;
but there being in each case a power to issue paper valid in form, it
could not be impeached in the hands of a bojui Jide holder. Ever}'-
bod}' knows that a partner who issues a note of the firm for his own
benefit, exceeds his power ; but the firm cannot avail themselves of
the objection as against a bona Jide holder. Another case is that of
Prescott V. Flynn (reported in Chitty on Bills, 35, note, Am. ed.
of 1839). In that case it was proved by circumstances that the clerk
of the defendants was authorized to indorse for them in their business.
Availing himself of that authority, he indorsed their names on two bills
of exchange which he procured to be discounted for his own benefit,
and absconded with the money. It was hardly pretended that the
plaintiff was bound, though he knew of the limitation, to inquire
whether in truth the money was intended for the principals. Indeed,
when the case came to be reported in 9 Bing. 19, the reporter thought
the fraud to be so entirely immaterial that he did not even mention it.
According to both reports, the court took it for granted that the agent
acting for himself, instead of his principals, could make no difference
as between them and the plaintiff. It was enough that he had power
to act in the defendants' business, and did apparently so act. In
Newland v. Oakley, 6 Yerg. 489. an attorney having power to assign
notes for his principal, did so ; but embezzled the mone^- which he got.
That he tlius assigned for his own benefit, was held not to affect the
right of a person to whom one of the notes came in the course of
trade.

These cases respecting the limited powers of agents to make indorse-
ments, accord with the proposition concerning powers in general as it
was submitted to us by the counsel for the plaintiff in error, viz. :
" Whenever the very act of the agent is authorized by the terms of the
power, that is, whenever by comparing the act done bj- the agent with
the words of the power, the act is in itself warranted bj- the terms
used, such act is binding on the constituent as to all persons dealinf in

308 NORTH RIVER BANK V. AYMAR. [CHAP. II.

good faith with the agent. Such persons are not bound to inquire into
facts aliunde. 'Die apparent authority is the real authority." Such a
rule was substantial!}- laid down by Lord EUenborough, C. J., in
Pickering r. Busk, 15 East, 38, 43. He says: "I cannot subscribe
to the doctrine that a broker's engagements are necessarily and in all
eases limited to his actual authority, the reality of which is afterwards
to be tried by the fact. It is clear tiiat he may bind his principal
within the limits of tlie autliority with which he has been apparently
clothed b}' the principal in respect to the subject matter ; and there
would be no safety in mercantile transactions, if he could not." An-
drews V. Kneeland, 6 Cowen, 354, 357, 358, and the books there cited;
Rossiter v. Rossiter, 8 Wend. 498, 499, and the cases there cited.

How were the plaintiffs in the case before us to ascertain whether
Jacob D. Fowler had acted in good faith towards his principal? On
their agent asking one of the payees, Samuel D. Rogers, of the firm of
David Rogers & Son, he answers tliat the notes were business paper,
given for goods sold ; and this is another circumstance tending to per-
fect the parallel with Putnam v. Sullivan.

The onl}- adjudged case cited on the argument for the defendants in
error, giving color to tlie idea that the appointee must look behind the
power, is Attwood v. Munnings, 1 Mann. «fe Ryl. 66; 7 Barn. & Cress.
42, s. c. The power in that case was extremely limited, being tied
up to the acceptance of bills particularly described. The words were :
" For me, and on my behalf, to pay and accept such bill or bills, &c.,
as shall be drawn, &c., on me b\' m}' agents or correspondents, as occa-
sion sliall require." The bill there in question was drawn by Burleigh,
a partner of the defendant, for the benefit of the joint concern ; and, as
the court held, he was neither a correspondent nor agent within the
meaning of the power. There was indeed no need of giving effect to
the bill b}' an acceptance under the power ; for Burleigh was authorized
to bind the defendant as his partner. The court held that, as the
power described the persons whose names must appear upon the bill,
the authority was overstepped if the names were not there. In other
words, a power to accept a bill drawn by an agent, did not extend to a
bill drawn b}' one who was not an agent. Here the power contains no
such limitation. The case cited accords with one of the most familiar
rules for the construction of powers ; but it does not appl}'. If the
principal will describe the particular condition on which a bill shall be
accepted, however idle, even to the writing of it with a steel pen. it
must be fulfilled. Tliere it was to be drawn by a correspondent or
agent; and not being so drawn, but by one who was a principal, the
condition failed. The appointee was admonished to see at his peril
that all the prescribed requisites were combined. The principal would
not trust the attorney, even to judge of the parties. There was another
clause in the power which, as Bayley, J., inclined to think, also
amounted to a condition. The bills were to be drawn as occasion
should require. It was not necessary to sa}' that the plaintiflT was

SECT. III.] XOKTH KIVER BANK V. AYMAK. 309

Ibound on this clause to see the occasion did require ; and a majority of
the judges who spoke to the question (Ilolro\d and Littledalc, JJ.)
did not sa\' so. The two reporters do not entirely agree. In 7 Barn.
& Cress., both of the two latter judges are made to discuss the ques-
tion : in 1 Mann. & Ryl., Littledale, J., is represented as having given
a naked assent to what Holroyd, J., said ; but in neither does it appear
that any but Bayley, J., considered the actual occasion of accepting as
a condition. The report of his argument is substantially the same in
both, though in Barn. & Cress, he seems to have thought it sufficient
to have called for the letter of advice. Littledale, J., in Barn. &
Cress., thought the words "as occasion shall require" did not var\- the
question ; and that the power should be read without them. This was
conceding the ground taken b\' counsel, that the attorney had a dis-
cretionary power to judge of the occasion. 1 have looked into some
authoritative books on agencN' to find how this case has been considered
b}' learned writers who had studied the subject. It is introduced into
the late edition of Paley on Agency (p. 192) bj- a simple statement
of the case, with the opinion of Bayle}', J. ; or rather, as illustrating
the general remark, that all written powers are to receive a strict
interpretation, the authorit}- never being extended beyond that which
is given in terms, or is absolutelv necessary for carrying the authority
into effect. Judge Stor}' mentions the case several times in his work
on agenc}' (pp. 22, 65 to 67, 69), but evidently considers it as holding
no more than that the appointee is bound to see the proper parties
introduced. He is evidentlj- of opinion, with Littledale, J., that the
words "as occasion shall require" were no more than what the nature
of such a power would imply without tliem, viz. an authority in the
agent to govern himself according to the emergencies of business.
The necessity mentioned b\' Mr. Justice Baylej' of calling for the letter
of advice was, I think, virtually denied b}- what Best, C. J., and the
whole court afterwards held as to letters of instruction in Withington
V. Herring, 5 Bing. 492 ; 3 Moore & Payne, 30 S. C. Such letters
are often confidential between the parties, and contain matters not fit
to be divulged. He said, all that was necessary' for the plaintiffs to
inquire for, was the authority. The case of Atwood v. Munnings was
mentioned b}' Park, J., and he, like Judge Story, understood it, not as
imposing the duty to inquire into the state of the principal's affairs, but
only as to the character of the drawers. Indeed, there is hardly any
rule better settled or of more universal application, than that the ap-
pointee need not inquire as to matters in their own nature private or
confidential between the agent and principal. It may be doubted, says
Mr. Justice Story, if upon this subject there is any solid distinction
between a special authoritj' to do a particular act, and a general author-
ity to do all acts in a particular business. Each includes the usual
and appropriate means to accomplish the end. (Story on Agencv, 70.)
Is it among those means that the appointee shall lose his money, be-
cause the attorney happens to betray the interests of his princii^al?

310 NOKTII EIVEK BANK V. AYMAR. [CIIAP. II.

Would not such a rule rather ])e a means to make the power utterly
unavailable? No prudent man woukl advance his money under such a
responsibilit}'. The rule supposes a degree of capacity to look into the
affairs and even the private intentions of others, which no human being
jiossesses.

In the case at bar, the principal was much abroad, and had left this
letter of attorney with the bank for the very purpose of obtaining credit
there. It had been repeatedly and for a long time acted upon, the
testator having an account at the bank, and the power of Jacob D.
Fowler never having been drawn in question. This very case admits
tlie validity of two out of the eleven notes in question. Such circum-
stances, even without the letter of attorney, should bind the testator's
estate. In Prescott v. Flynn, the defendants' clerk having been intro-
duced as confidential, drawn bills, and on one occasion only been em-
powered to indorse in their business, the}- were, from that circumstance
alone, held liable on his subsequent indorsement of their names for his
own benefit. Here we have a stronger case. Both the testator and
Jacob D. Fowler came with the letter of attorne}', and deposited it
with tiie plaintiffs ; the attorney had drawn and indorsed through a
course of five or six years ; the testator, a shipmaster, being frequently
at home, and knowing and approving every act nearlj- up to the time
of the making and indorsing now in question.

In Nichol i\ Green, Peck's Rep. 288, the attorne}', under a power
like the present, dealt directly with the plaintiff, purchasing on his own
account, as the plaintiff knew ; and then, under the power, made and
indorsed the note in question. Haywood and Peck, JJ., held what we
have just now decided in Stainer v. Tysen (3 Hill, 279), on the dis-
tinction between taking the note with or without knowledge of the
fraud. One judge dissented, and one took no part in the cause. It
does not appear how it was finall}' decided. The case of Butcher v.
Tj'sen, which was before the Circuit Court of the U. S., in November
term, 1840 (4 Hunt's Merch. Mag. 456), decides the same point the
same wa}'. The plaintiff cannot complain that the defendant clothed
his agent with the means of perpetrating a fraud when none has been
actually committed. The difference rests entirel}* upon that fact. In
the cases cited, the question in debate was, whether, by authorizing
the agent to issue notes in the name of the principal, without words
expressly restricting the issue to his own business, he did not confer
the power of issuing them for the benefit of everybody, even including
the attorney. That the power is to be thus construed, was contended
in the case before us, and in Stainer v. T3'sen. "We have arrived at
the conclusion without much difficult}-, that to give the power so great
an effect, the principal must go farther, and expressly declare his mean-
ing that the attorney- ma}- use his notes for the benefit of others beside
the principal.

On the distinction which I have endeavored to establish in favor of a
bo?ia fide holder, I am of opinion that, in the case at bar, the court

SECT. III.] MUSSEY V. BEECHER. 311

below erred when they charged that the attorney had exceeded his
power in that sense which avoided these notes in the hands of tlie
plaintiffs. As against his principal, he did exceed his power; but the
executors must look to him-, not the plaintiffs, for their indemnit}-.

The point that the bank had notice through Samuel D. Rogers, the
director, does not arise. There was indeed evidence that he had
notice and acted as director in respect to nearly if not quite all the
notes. If these things finalh- turn out to be so, of course the plaintiffs
cannot recover on those notes in respect to which the}- were thus
affected with notice. Bank of the United States v. Davis, 2 Hill,
451. But the question was entireh- excluded, by the charge, from
the consideration of the jury ; and, for aught we can see, the court laid
no stress upon it. They put the case on the naked independent ques-
tion of authority ; and, under the charge given, the jur}' were bound
to find for the defendants, although they believed the plaintiffs were
bona Jide holders. I have, therefore, as in dut}- bound, considered
them such. No doubt the}' were so in fact. If not so constructivel}-,
owing to one of their agents having had notice, the}- must fail ; but
they are none the less entitled to have the question tried and disposed
of upon that issue.

Some other minor points were mentioned on the argument by the
counsel for the defendants in error ; but the same answer applies.
They were not passed upon in the court below. On the whole, I am
of opinion that the judgment should be reversed ; a centre de novo to
go from the court below, the costs to abide the event.

Bronson, J. concurred.

Nelson, C. J., dissenting.* Judgment reversed.*

MUSSEY V. BEECHER.
Supreme Judicial Court of Massachusetts. 1849.

[3 Cush. 511.]

This was an action of assumpsit for goods alleged to have been
sold and delivered by the plaintiff to the defendant, through the
latter's agent, William Pierce.

The case having been referred to an auditor, he reported in favor
of the plaintiff, for goods sold and delivered between the 10th of
March, 1842, and the 25th of May, 1843 ; and for the balance of two

1 This dissenting opinion, reiving upon Attwood v. Mannings, ante, p. 286, is omitted.
— Ed.

- This decision was reversed in the Court of Errors ; but there is no formal report
of the reversal. The doctrine of the Supreme Court was approved in later cases. See
Farmers & Mechanics' Bank r. Butchers & Drovers' Bank, 16 N. Y. 125, 138-139,
142-143, 154 (1857) ; Bank of Batavia v. N. Y., L. E. & W. Railroad Co., 106 N. Y
19.5, 199 (1887). — El).

312 MUSSEY V. BEECHER. [CHAP. II.

notes, one for $207, dated March 9th, 1842, signed " W. Pierce, agent
of L. S. B. ; " and the other for $250, dated August 8th, 1841, and
signed in the same manner. The balance found due by the auditor
on the notes was $214.15, and for goods sold, after deducting a set-
off, $890.25, making in the whole $1104.40. The jury returned a
verdict for the plaintiff for $660.57.

The cause was tried in this court before Wilde, J., by whom it was
reported for the consideration of the whole court.

The report was as follows : —

It appeared that the plaintiff was a bookseller and publisher in
Boston, and that Pierce carried on a bookseller's shop in Andover, as
the agent of Leonard Woods, until the 1st of January, 1842, at which
date his agenc}' for Woods ceased, and he thenceforth carried on the
same business and purchased goods, under a written authority from
the defendant. The following is a copy of this instrument : —

Know all men by these presents, that I, Laban S. Beecher, of Roxbury, in the
county of Norfolk, (doing business in Boston), leather dealer, do hereby constitute
and apjjoint William Pierce, of Andover, in the county of Essex, bookseller, my
sufficient and lawful attorney, for me, in my behalf and as my agent, to purchase
books, paper, and stationery, for the purpose of carrying on business in said Andover ;
and the same to sell again, for my benefit and on my account, on such credit and at
such prices as he may deem meet ; to collect, recover, demand and receive all debts
and sums of money due and receivable for and on account of the sales of said goods
and merchandise, and generally to do and perforin such matters and things as are
necessary and proper for the carrying on and conducting of said business.

Provided, however, that said Pierce shall not make purchases or incur debts
exceeding in amount at any one time the sura of two thousand dollars, and also that
this power or agency shall not extend for a period of time more than one year from
the date hereof, or beyond the 1st day of January, a. d. 1842. Hereby ratifying and
confirming whatsoever my said attorney may do in the premises. In testimony
whereof, I have hereunto set my hand and seal this first day of January, in the year
eighteen hundred and forty-one.

E. N. Badger, witness. Laban S. Beechee (seal).

Boston, Jan. 1, 1842.
The foregoing instrument is hereby continued in force for twelve months from this
date. Laban S. Beecher.

This paper, it was admitted, was exhibited by Pierce to the plain-
tiff, Mussey, prior to the sale and delivery of any of the goods, out of
which this controversy arose ; and it was proved that the plaintiff sub-
sequently sold and delivered to Pierce the goods which were charged
on the plaintiffs books to Pierce, and bills of which were rendered to
Pierce in his, Pierce's, name.

Pierce was called as a witness by the plaintiff, and testified to the
custody, execution, and delivei-y of the instrument creating the agenc}',
which the defendant was notified to produce, and which, upon the
cross-examination of this witness, was produced. On such cross-ex-
amination Pierce testified, among other things, that, in fact, the amount
of his purchases of various persons, during the period from March 1st
to September 1st, 1842, exceeded, at all times, the sum of $2000 ; that

SECT. III.] MUSSEY V. BEECHER. 313

his suspicions were aroused on tliis point in July and August, but
that lie did not go into any particular investigation until August ; tliat,
before the 27th of August, he had investigated the matter sufficiently
to satisfy himself that the agency was full ; that, on the 27th of August,
he applied to the plaintiff to purchase a bill of goods amounting to
$168.23, which was included in the auditor's report; that the plaintiff
inquired of him whether the agency was full, and if there was no danger
of his buying beyond ; that the witness replied, that it was full, and
that the bill must be sold to him on his own credit ; to which the plain-
tiff replied, that payments would be making, by and by, which would
reduce the amount, and then it would come within the agency, and
that he, the plaintiff, should be willing to trust the witness $300 to
$400 on his own responsibility. The witness also testified, that, from
time to time, during the summer, the plaintiff inquired of him, when he
went in to purchase, whether his agency was full ; that the witness had
sometimes replied that it was nearly full ; that at another time witness
thought (but was uncertain) that it was probably full ; that, during his
agency, he from time to time furnished the defendant with the data
respecting the amount of his indebtedness ; that the defendant knew in
August that the amount far exceeded the sum named in the written
authority ; and that he knew it in September ; witness was more doubt-
ful as to the defendant's knowledge in July, but testified that it was
probable that he also knew it in July ; that in October the defendant
required the witness to notify formally two or three parties he was
dealing with, that the agency was at an end, and that among others he
notified the plaintiff; that in August, the defendant complained to the
witness, that the agency was full, and this led the witness to make the
investigation previously referred to, and he communicated the result
to the defendant.

It was contended by the plaintiff, that there was evidence tending to
show, that the limitation, both of amount and time, had beei» extended
or waived by the defendant ; but this was wholly denied by the
defendant. The plaintiff also contended that Pierce was mistaken
in his statement, that in August he gave notice to the plaintiff that the
agency was full, and that the purchase then made was upon his own
personal credit ; and, for that purpose, he offered in evidence certain
schedules purporting to set forth his debts, subscribed, sworn to and
filed, and afterwards amended by Pierce, in November and December,
1842, in the District Court of the United States, in the proceedings
under his petition to be declared a bankrupt, and for a discharge from
his debts, to show that in the schedules no debt was set forth as due
from him to the plaintiff. To the admission of this evidence the
defendant objected, but the court admitted the same. The defendant
contended, that the burden of proof was on the plaintiff, to show that
the goods sought to be recovered were sold to Pierce as agent for the
defendant, under the power above referred to, and that as such power
was limited, the plaintiff must also show that the goods were sold

314 MUSSEY V. BEECHER. [CHAP. II.

within the limits and provisions of the power, and that if he, Pierce,
had already purchased goods to a greater amount than S2000, under
the power, the plaintiff could not recover of tlie defendant in this
case.

But the court instructed the jur\-, that the i)laintiff must show that
the goods were sold under the power to Pierce as the defendant's
agent, and not upon the personal credit of Pierce ; and that although
the power was limited, and such limitation was known to the plaintiff,
yet that the defendant would be liable for Pierce's purchases, even
though he had already exceeded tlie amount authorized by the power,
if the jury were satisfied, from the evidence, that, at the time of the
purchases. Pierce represented that by such purchases he would nut
exceed his limit.

The court further instructed the jury, that if they were satisfied that
Pierce notified the plaintiff that the agency was full, that from the
time of giving such notice the plaintiff could not recover, if such
agency was in fact full, or he trusted Pierce on his own credit ; and,
also, that if afterwards the plaintiff had inquired of Pierce about the
agenc}', and had been informed b}' him that it was not full, and the
plaintiff had no r«ason to suspect the truth of Pierce's declaration, and
if the plaintiff then sold goods to Pierce as agent, as aforesaid, the
defendant would be liable for such goods, even though the agency was
then full.

If either of the foregoing rulings or refusals of the court was errone-
ous, a new trial is to be granted, otherwise judgment is to be rendered
on the verdict.

W. Brigham^ for the defendant.

S. Hartlett, for the plaintiff.

The opinion of a majority of the court was delivered by

Shaw, C. J.^ The former part of this instruction, that it must
appear that the goods were not sold on the personal credit of Pierce,
is unquestionabl}' correct ; but, in regard to the latter part, which
makes the defendant responsible for the veracity and accuracy of
Pierce, a majorit}' of the court are of opinion that it was not correct
in point of law.

This power of attorney, which is in the nature of a letter of credit,
is precise and limited in amount ; and though it contains some ex-
pressions intimating that the attorney is the general agent of the
constituent to purchase and sell goods, yet this is controlled by the
proviso and express condition ; and, taken all together, as every
written instrument must be, it is an authority to purchase in the name
and on the credit of tlie author of the power, to the amount of $2000
and no more.

The precise point is this, whether, if Pierce, through design or
mistake, represented to the plaintiff that when he made the purchase

* After stating the case. — Ed.

SECT. III.] MUSSEY V. BEECHER. 315

in question, he had not purchased on the credit of his principal to the
amount of S2000, when, in truth, his purchases exceeded that sum, the
defendant was bound b}- it. It is unquestionably true that the state-
ments and representations of an agent, in transacting the business
of his principal within the scope of his authority, are as binding on
his principal as any other acts done within the scope of his author-
ity ; they are res ffestce, and are acts. But an agent cannot enlarge
his authority any more by his declarations than by his other acts ;
and the rule is clear that the acts of an agent not within the scope of
his authority do not bind the principal. It is often said, indeed, that
one is bound b}- the acts of a general agent, though done against his
instructions. This is because the acts are within the scope of his
authority; and the violation of his instructions, in the execution of such
authority, is a matter solely between himself and his princii)al, which
cannot affect a stranger dealing with him without express notice.

The argument is, that the defendant ought to be bound, because
Pierce was his agent, and he, bj- his letter of attorney, had put it in
his power to make such purchase. This, it appears to us, assumes the
very point to be proved. The plaintiff knew that he was limited to
$2000 ; he knew, therefore, that if he had purchased to that amount,
his power, by its own limitation, was at an end. If it were otherwise,
a power to purchase to the amount of $2000, would operate as a
power to purchase to an unlimited amount. But it is urged that,
npon this construction, no one could safel\- deal with the agent.
This objection, we think, is answered b}' the consideration that no one
is bound to deal with the agent, whoever does so is admonished of the
extent and limitation of the agent's authoritv, and must, at his own
peril, ascertain the fact upon which alone the authority to bind the
constituent depends. Under an authorit}- so peculiar and limited, it
is not to be presumed that one would deal with the agent, who had
not full confidence in his honesty and veracity, and in the- accuracy of
his books and accounts. To this extent, the seller of the goods trusts
the agent, and if he is deceived by him, he has no right to complain
of the principal. It is he himself, and not the principal, who trusts the
agent beyond the expressed limits of the power; and, therefore, the
maxim, that where one of two innocent persons must suffer, he who
reposed confidence in the wrong-doer must bear the loss, operates in
favor of the constituent, and not in favor of the seller of the goods.
Parsons v. Armor, 3 Pet. 413 ; Stainer v. Tysen, 3 Hill, 279 ; Attwood
V. Munnings, 7 Barn. & Cr. 278. The case of Putnam v. Sullivan, 4
Mass. 45. was decided on the ground that the defendants, by leaving
blank indorsements with their clerk, had authorized him b}- his act to
bind them as indorsers.

On the whole, a majority of the court are of opinion that the verdict
must be set aside, and a new trial granted.

Wilde, J. I have been unable to agree with m}' learned brethren in
the decision of the question raised at the trial of this cause, although
I fully admit the principles on which the question has been decided.

316 UPTON V. SUFFOLK COUNTY MILLS. [CHAP, IL

In my judgment, with great deference to the opinion of m}' brethren,
thesft principles are not applicable to the present case. The question,
as it seems to me, turns on a well-established principle of law, which
I am not aware has ever been disputed.

The principle is this, that wherever one of two innocent persons
must suffer by the acts of a third, he who has enabled such third person
to occasion the loss must sustain it. . . }

Now, in m}' judgment, these instructions are not liable to an}' well-
founded exception. I admit that the plaintiff was bound to inquire
into the agent's authority, and whether the sales to him, on the credit
of the defendant, would not exceed the amount limited in his power of
attorne}-. But of whom was he to inquire? He certainl}' had no means
of knowing ; and if he might not rely on the representations of the
agent, the consequence would be that no sale could safely be made on
credit under the power. But the power was given to be used for the
benefit of the defendant, and if given in such a form as to enable the
agent to perpetrate a fraud, by obtaining credit b}- false representa-
tions, and credit was so obtained, and a loss occurred, it should be
sustained b}' the defendant, and not bj- the plaintiff, who dealt with the
agent in good faith, without knowing, or having an}' means of knowing,
that he was exceeding his authority.

I am therefore of opinion, upon the authorities, and upon the
principle of law to which I have referred, that the instructions given to
Khe jury were correct.

Verdict set aside, and new trial granted.^

UPTON V. SUFFOLK COUNTY MILLS.
Supreme Judicial Court of Massachusetts. 1853.

[11 Cush. 586.]

Assumpsit for breach of a warrant}' that certain flour should keep
sweet during a voyage to California. The defendants, a corpora-
tion established for the manufacture and sale of flour, among other
grounds of defence, not necessary to report, denied that the}' under-
took and warranted as set forth in the declaration. At the trial in
this court, before Bigelow, J., it appeared that the plaintilT, being a
merchant engaged in the California trade, on the 19th of January, 1850,

* Citing Lickbarrow v. Mason, 2 T. R. 63, 70, per Ashhurst, J. ; Hern i*. Nichols,
ante, p. 90, per Holt, C J. ; Putnam v. Sullivan, 4 Mass. 45, 54, per Parsons, C J. ; and
North River Bank r. Aymar, ante, p. 303, per Cowen, C. J. ; and restating the prin-
cipal case. — Ei>.

2 Compare Lowell Five Cents Savings Bank i: Winchester, 8 Allen, 109 (1864).
— Ed. ,

SECT. III.] UPTON V. SUFFOLK COUNTY MILLS. 317

obtained from the agent of the defendants the following memorandum
of agreement in writing, namely : " I am to furnish Mr. Upton 4,000
qrs. bbls. of flour, in good tight packages, on or before the 18th Febru-
ary next. The flour to be of such a character as will insure its keep-
ing sound on a voyage to San Francisco. For S. C. Mills, W. W.
Allcott. January 19th, 1850."

On the 18th of February, 1850, the flour having been made at the
defendants' mills, and delivered to the plaii^ift' for shipment, the said
Allcott made out and delivered to the plaintiff" the following bill of par-
cels, receipt, and memorandum of warranty : "Boston, Feb. 18th,
1850. Mr. Geo. B. Upton, Bo't of W. W. Allcott [flour described].
Rec'd pay't, Feb. 18th, 1850, by notes payable in 6 months. William
W. Allcott. The above flour is warranted to keep sweet during voj'age
to California. Witness, Geo. B. Upton, Jr."

The warranty, receipt, and signature, on the above bill of parcels,
were in the handwriting of said Allcott. The residue of the bill of
parcels was written by a clerk. The plaintiff also offered evidence
tending to show the injury to the flour on the vo\-age to California, but
the evidence upon this point became immaterial in the final decision of
the cause.

For the defendants, said W. W. Allcott, among other things, testi-
fied as follows: " In January, 1850, I held the office of superintendent
and general agent for the Suffolk Count}' Mills (the defendants). My
duties were confined to manufactui'ing and selling on commission. I
have been a director for some time. I had no special instructions in
regard to making sales. No authorit}- was ever given me b}' the com-
pan}- to enter into such a warranty as in the bill of parcels. I never
represented to Mr. Upton that I did not have such authority. I never
mentioned to the directors that I had given such a warrant}' until the
claim was made b}- Mr. Upton. I return the proceeds of sales from
da}' to day to the treasurer. My agency in selling is limited to selling
and paying over the proceeds. I think no extra price was paid for the
warranty. I never stated to Mr. Upton that this was my contract, and
not that of the company. I made this sale for a commission, on
account of the Suffolk County Mills, and as their propert}-. I entered
the sales as agent of the company, in books belonging to the com-
pany, but not the warranty." Ui)on this and much other evidence in
the case, which finall}' became immaterial, the case was taken from the
jury under an agreement of the parties, that if the court should find
upon the evidence that the contract of warranty wa§ not originally
binding upon the defendants, or had not been ratified by them, the
plaintifl^ was to become nonsuit ; otherwise the case was to be referred
to assessors.

G. T. Curtis and C. P. Curtis, Jr., for the plaintiff.

C G. Loring and /. W. Thornton., for the defendants.

Metcalf, J. The court have not found it necessary to form an opin-
ion upon a question which was ably argued, namely, whether the con-

318 UPTON V. SUFFOLK COUNTY MILLS [CHAP. IL

tract declared on legally purports to be a contract between the plaintiff
and the defendants. Assuming that it does, yet we are all of opinion
that the defendants are not bound b}- it, because AUcott had no
authority to bind them by such a contract. It appears from his testi-
mony that he was their general selling agent, and had no special
instructions in regard to making sales ; that no authority (by which he
doubtless means express authorit}') was ever given to him bj' the de-
fendants to make such ^ warranty as that on which this action is
brought ; that no extra price was paid for the flour by reason of the
warranty ; that tliough the sale was entered on the defendants' books,
yet that the warranty was not entered there ; and that the defendants
bad no notice of the warrant}' until they were called upon b^- the plain-
tiff to answer for a breach of it.

The single question which we have examined is, what is the extent
of the implied authority' of a general selling agent? The answer is, it
is the same as that of other general agents. And it is an elementary
principle that an agent employed generalh' to do an}- act, is authorized
to do it only in the usual way of business. Smith's Merc. Law (Amer.
ed. 1847), \05 (5th ed.), 129 ; Woolrych on Com. & Merc. Law, 319 ;
Jones r. Warner, 11 Conn. 48, A general agent is not, by virtue of
his commission , permitted to depart from the usual manner of effecting
what he is emploj'ed to effect. 3 Chit. Law of Com. & Man. 199.
When one authorizes another to sell goods, he is presumed to authorize
him to sell in the usual manner, and only in the usual manner, in which
goods or things of that sort are sold. Stor}- on Agency, § 60. See
also Shaw v. Stone, 1 Cush. 228. The usage of the business in which
a general agent is employed furnishes the rule b}- which his authorit}- is
measured. Hence, a general selling agent has authority to sell on
credit, and to warrant the soundness of the article sold, when such is
the usage. Goodenow v. Tyler, 7 Mass. 36 ; Alexander v. Gibson,
2 Campb. 555 ; Nelson v. Cowing, 6 Hill, 336 ; 2 Kent Com. (6th ed.)
622; Russell on Factors, 58; Smith on Master & Servant, 128, 129.
But as stocks and goods sent to auction are not usuall}- sold on credit,
a stock-broker or auctioneer has no authority so to sell them, unless he
has the owner's express direction or consent. Wiltshire v. Sims, 1 Campb.
258 ; 3 Chit. Law of Com. & Man. 205 ; 1 Bell Com. 388. And it was
said b}' Mr. Justice Thompson (9 Wheat. 647) that auctioneers have only
authority- to sell, and not to warrant, unless specially instructed so
to do.

As there is no evidence nor suggestion of a usage to sell flour with
the hazardous warranty that it shall keep sweet during a sea voyage,
in which it must twice cross the equator, we deem it quite clear that
nothing short of an express authority, conferred on Allcott by the
defendants, would empower him to bind them by such a w-arrant}'. See
Cox V. Midland Counties Railway Compan}-, 3 Welsh. Hurlst. & Gord.
278. Plaintiff nonsuit.

SECT. 111.] TEMPLE V. POMEOY. 319

TEMPLE V. POMROY.
Supreme Judicial Court of Massachusetts. 1855.

[4 Graij, 128.]

Action of Contract against Daniel Puiiiioy and Francis T. Swan,
desciibing them as late partners in the butchering business under the
firm of Pomroy & Swan, on a negotiable promissory note signed with
their individual names. Swan was defaulted. A trial was had in the
Court of Common Pleas at August term, 1855, before Mellex, C. J.,
who signed the following bill of exceptions : —

" It appeared that the signature of the defendant Pomroy was not
affixed to the note by himself, nor in his presence. The plaintiff offered
evidence to show that it was affixed by Swan, acting as Pomroy's agent.
The defendant Pomroy objected to parol proof that the name was affixed
by an agent, that fact not appearing on the face of the paper. The
evidence was admitted by the court, the court ruling that it was com-
petent to show that the signature of Pomroj" was put to the note by an
agent thereto duly authorized, though no words of procuration appeared
on the face of the note ; and the court left the question of fact to the
jury to find, whether Swan, by whom it was proved Pomroy's name was
written on the note, had authoritj' to sign Pomro^^'s name to the note
without naming his agenc}'.

"" There was evidence tending to prove that Swan was emplo3-ed by
Pomro}' as his agent to manage the butchering business in the town of
Shelburne from May, 1853, to September, 1853. The plaintiff intro-
duced evidence tending to show that Pomroy succeeded one Martin in
the prior firm of Swan & Martin, who carried on the business of buying
and selling meat and slaughtering. And the books and acts of the de-
fendant Pomroj' ; and his dealings ; books of account kept in his own
name, containing credits of cattle purchased by said Swan for the busi-
ness, while it was going on, and, in two or three instances, notes entered
and charged in payment of the same accounts opened with each, alsQ
showing the small amount of moneys advanced by Pomroy to carry on
the business, compared with the exigencies of the business carried on ;
and the fact that, in some other instances, notes were signed in the
same waj-, in similar transactions, — were offered in evidence to show
in the first instance an authority in Swan to bind Pomroy by note, as a
partner, and in the next place, as agent, under an authoritj- express oi
implied from Pomroy as principal.

" The counsel for the defendant Pomroy requested the court to in-
struct the jury that no implication of authority to sign the note arose
from the fact that Swan was an agent to carry on the business, as shown
by the evidence ; and that such authority was not to be implied froni
the nature of the business. The court declined so to give the instruct
tions, as matter of law, but left it to the jury, upon all the evidence in

320 TEMPLE V. POMKOY. [CHAP. II.

the case, to find whether Swan was authorized by Pomroy to sign his
name to the note in suit without naming his agenc}".

" There was evidence tending to show that another note to one Hall,
signed similarly to that in the present action, had been paid b}'^ Pomro}'
under protest, and upon receiving security which he deemed to be suffi-
cient from Swan.

" The defendant's counsel asked the court to instruct the jury that
the payment of a single note under these circumstances could, at the
most, prove nothing more than that the defendant misunderstood or
was willing to waive his real rights. But the court declined so to rule,
as a matter of law, and instructed the jury that this was a question of
fact for them to determine, how far this evidence, under the circum-
stances, tended to prove an agency in Swan to sign the note in suit.
And the judge further charged the jury, that if they should find that
the giving of notes was necessarily incident to the management of
the business Swan was authorized by Pomroy to conduct for him, the
agenc}' would imply an authority for that purpose.

" To these refusals and rulings the defendant excepts."

C. Allen, for Pomroy.

C. P. Huntington, for the plaintiff.

Merrick, J. The plaintiff does not contend that Swan was ex-
pressly' authorized by Poraro}' to put his signature to the note in suit-
As a general rule, a special agent, or one who is employed to make
purchases for his principal, has no authorit}', unless it is directly con-
ferred, to bind him by a negotiable note or bill of exchange. But such
a power is a necessar}' implication from his employment, whenever its
exercise is indispensable to the discharge of the duties to be performed.
Paige V. Stone, 10 Met. 168 ; Tabor v. Cannon, 8 Met. 458, 459. To
the general instructions, therefore, of the presiding judge, that if the
giving of notes in the name of his principal was necessarily incident to
the management of the business which he was to conduct for Pomroy,
his agenc}- would impl}' an authoritv for that purpose, there appears to
be no valid ground of objection. But in reference to particular ques-
tions which arose in the progress of the trial, and to which the attention
of the court was requested b3' the defendant, the rulings and instruc-
tions given to the jury are not equally satisfactor}'.

1. Evidence was adduced by the plaintiff, tending to show, and which
may now be considered as sufficient to prove, that on some other occa-
sion a note similar to the one in suit, and signed in the same manner,
had been made by Swan, in the course of his dealing in the business of
Pomro3% payable to a person of the name of Hall, which was afterwards
paid by Pomroy, though under protest, and not until he had received
from Swan what he considered satisfactor}' security to indemnify him
for doing so. His counsel contended, in substance, that the payment
to Hall, under such circumstances, implied no authority in Swan to
make other notes, or the note in suit, in his name ; and that, in short,
it proved nothing more than that he might in this instance have mis-

SECT. III.] TEMPLE V POMROY. 321

understood or was willing to waive his rights. But the court declined
to rule to this effect, as matter of law, and instructed the jury that the}'
were to determine how fur this evidence tended to prove the authority
of Swan, as the agent of Pomroy, to put his signature to the note in
suit. This instruction cannot be sustained. It imported that it was
competent for the jur}' to infer from this evidence the lawful authority'
of the agent to bind his principal, in another instance and upon another
occasion, by a promissory note. This was erroneous, because such an
authorit}' is never to be assumed or inferred, unless it results as a
necessar}' implication from the facts established. And surely the
transactions concerning the note to Hall afford no ground for such an
implication. It does not appear that Pomro}' had any knowledge of
its existence until the time of its maturity. He paid it then under pro-
test; that is, as we understand it, denying the authorit}- of Swan to
make it, and his own liability to be bound by it. And he fortified this
denial by persisting in his refusal to pay until he received from Swan
security for the reimbursement of the money he should advance for that
purpose. All this evidence concerning the note to Hall ma}- have been
inadvertently admitted upon the trial, but since it was received, the
jury should have been guarded, as the defendants' counsel desired that
they should be, from giving it an effect to which it was not legally
entitled.

2. The counsel for Pomroy further requested the court to instruct the
jury that no implication of authorit}' to sign the note in suit arose from
the fact that Swan was an agent to carr}- on the business, as shown by
the evidence, and that such authorit}' could not be implied from the
nature of the business. The evidence referred to in this request is so
imperfectly detailed and exhibited in the bill of exceptions that it is
very difficult, and perhaps impossible, to appreciate exacth' the ques-
tion proposed to the court, or the ruling which was made upon it. Nor
is this necessary, since it is apparent that the instructions given to the
jur}- in relation to it were not accompanied by the necessar}' qualifica-
tions and restrictions. It was left to them, in indefinite terms, to find,
upon all the evidence in the case, whether Swan was authorized to sign
his name to the note in suit without naming his agency. The question
of fact, which was in issue in relation to that authority, it was undoubt-
edlv their duty to determine ; and so far the}- were rightly advised
by the court. But under the special requests submitted by the counsel
for the defendant, they should also have been advised that, though an
agent employed to make purchases for his principal may undoubtedly
bind him by a contract of sale, he cannot ordinarily, without express
authority, bind him by a negotiable promissory note ; and that the
single exception to this positive rule is in relation to agencies, the
objects and purposes of which cannot be accomplished without the ex-
ercise of such a power. If the instructions which were given in reply to
this request of the defendant had been connected with or limited by
those which were given apparently at a later stage in the trial or charge,

322 SEIPLE V. IRWIN. [CHAI-. II.

though the occasion which iiidueod the later explanation, or the precise
evidence to which it was applied, is not developed in the bill of excep-
tions, the3' might have been held to be sufficient. But without such
limitations they cannot be considered as having been sufficiently guarded
to secure to each of the parties the legal rights to which they were
respectively entitled. Exceptions sustained.

SEIPLE V. IRWIN.
Supreme Court of Pennsylvania. 1858.

[30 Pa. 513.]

Error to the District Court of Philadelphia.

This was an action of assumpsit by Sei[)le & Erdman against Irwin,
Shultz, & Peiper, to recover the amount of a bill of goods sold and
delivered to the defendants.

On the 13th November, 1854, the defendants purchased in plaintiffs'
store, on the usual credit, a bill of goods amounting to $173.02. The
bill was purchased from one John AVilson, a salesman in the plaintiffs'
store, employed to sell goods on commission. On the 23d November,
1854, the defendants paid the bill to Wilson, with a deduction of five
per cent for cash, and took his receipt for the amount, as agent for the
plaintiffs. No authority to Wilson was shown to collect money for
the plaintiffs.

The court below (Hare, J.) charged the jur}' as follows : —

" The question for j'our determination is one merel}' of authority on
the part of John Wilson, to collect money for the plaintiffs. The evi-
dence shows Wilson to have been a salesman for plaintiffs, or that he
was employed b}' them to sell goods. The defendants' counsel con-
tends, and the fact no doubt is, that the goods charged defendants in
this suit were sold b}' John Wilson to defendants. The defendants have
offered in evidence John Wilson's receipt, dated a few days after the
sale, for the amount of the bill. Wliere a person is employed to sell
goods, and is intrusted with the possession and disposal of them by the
owners, and sells for cash, payment to him b}' the purchaser will be
good ; and it may well be so, when he sells on credit ; but on the other
hand, when the person is merelv employed to sell goods, and sells on a
credit, without having the possession or disposal of them, a payment
to him will not be good without some other evidence of authority.
Take, for instance, a sale of goods across a counter, — there the per-
son selling the goods has the actual possession and disposal of them,
and a payment to him at the time will be good. It does not follow that
he can collect the money afterwards. And I do not conceive that a
clerk's having the authority to sell goods for his employers for credit,

SECT. HI.] SEIPLE V. IRWIN. 323

carries with it an authority to collect the money for the goods. It is
for the purchaser to see to whom he pays his money, and if he pays the
clerk or salesman who effects the sale, without sufficient proof of his
authority, it is at his risk. If Wilson actually delivered the goods to
defendants, or had the control of them for the purpose of delivery,
payment might safely be made to him ; or if the defendants had shown
that, although Wilson was mereh* employed for the purpose of selling
goods, yet that the plaintiffs had allowed him to collect money for them
at any time, or had kept him in their employ after he had made such
collections, that would be sufficient to imply an authority from plain-
tiff's to Wilson to collect money, and defendants' pa3ment would have
been valid. The question of Wilson's authority to collect the amount
of this bill is properly for your determination. Nevertheless, I will say
to you, that the mere fact that the goods were sold bj- Wilson to the
defendants, and that the\', the defendants, afterwards paid Wilson for
theui", does not constitute a good defence to the plaintiffs' claim in this
case, unless you find some authoritv from the plaintiff's other than that
necessarily implied in their authorizing him to make sales for them as
a salesman."

The defendants excepted to the latter part of this charge ; and a
verdict and judgment having been given for the plaintiffs for S173.02,
they removed the cause to this court, and here assigned the same for
error.

J. M. ArundcU for plaintiffs in error. The power vested in an agent
to sell goods for his principal, carries with it the power to receive pay-
ment for them. Capel v. Thornton, 3 C. & P. 352; 6 Johns. 70; 1
Caine, .527 ; 3 Johns. Cas. 36 ; 1 Caine, 324.

Marshall and Budd, for defendants in error. The alleged paj'ment
to Wilson was not a part of the same transaction. It was separate,
distinct, independent, and irregular. It was not in accordance with
the usual and customary course of business.

If payment is not in the usual and customary course of business, and
is made under circumstances fairh* giving rise to the presumption that
the agent was acting malafide^ and received the mone}' with intent to
appropriate it to his own use in fraud of the principal, the payment is
not a valid payment. Addison on Contracts, 1108. Whoever deals
with a special agent is bound to acquaint himself with the limitation
and extent conferred upon him, and acts at his own peril. Story on
Contracts, § 134. Though payment to a factor for goods sold hy him
be valid, the principal may control the collection and sue for the price
in his own name ; and it is immaterial whether the agent was an auc-
tioneer or a common factor. Girard v. Taggart, 5 S. <fe R. 19.

The cases of Pratt v. Willey, 2 Carr. & Payne, 350, and Oilman v.
Robinson, 1 Carr. & Pa3'ne, 642, are referred to, as being especially
applicable. Want of authorit}' in John Wilson to collect the claim of
plaintiffs below, appears both in the evidence and by the verdict of
the jury.

S24 SMITH V. McGUIRE. [CHAP. I^;

The opinion of the court was delivered bj-

Pouter, J. The extent of the agent's authority was properly sub-
mitted to the jury as a question of fact. The point drawn into dis-
pute is the qualifying remark, that the defence would be incomplete,
unless the jury found some delegation of authority from the plaintiffs
to the agent other than that necessarily implied in authorizing him to
make sales as a salesman. This is ground to be cautiously trodden.
It is undeniable that an agent to whom merchandise has been intrusted,
with authority to sell and deliver it, is authorized to receive the price ;
otherwise the fraud on the purchaser would run into cruelty-. This
agent's powers were not embraced in that description. He was em-
ployed only to make sales. As a check, his employers seem to have
retained in their own hands the delivery of the goods and the appoint-
ment of the terms of sale. The goods in question were so delivered as
to inform the defendants sufficiently of the character of the agency.
When the agreement had been made for payment in six months, the
contract was complete. The subsequent acceptance of cash, with a
deduction of five per centum from the bill, was a new and totally un-
authorized arrangement on the agent's part. In making payment, the
defendants took the risk of his integrity, and they must bear the loss
which his unfaithfulness imposed. Judgment affirmed.

SMITH y. McGUIRE.

Exchequer. 1858.
[3 H. .j' N. 554.]

Declaration. That, by charter-party between the plaintiff and
the defendant, it was agreed that the ship " Mahtoree," being tight,
staunch, and strong, and everj' way fitted, would, at Limerick, load
a full cargo of oats for London, after discharging her timber from
Quebec, at the rate of 2s. per imperial quarter, with 8| per cent pri-
mage ; the said ship to discharge in the stream in London ; twelve days
for loading the ship in Limerick, and the usual time for discharging
in London, say three Mondays' markets ; if longer detained, to pay
b}' the affreighters or their assigns three guineas per day demurrage,
&c. ; ship to be reported at Limerick by Mulloch and Sons or their
agents at the port of discharge. And the defendant, b^' the said
charter-part}' and agreement, agreed to load the said ship in accord-
ance with the terms of the said charter-party. Breach : that though
all things had happened, &c., and all time, &c., had elapsed, and
plaintiff had been ready and willing, &c., and although the ship was
before the breach tight, stanch, and strong, yet the defendant

SECT. III.] SMITH V. McGUIHE. 325

would not load the ship ; whereby, &c. There was also a count for
demurrrage.

Pleas to the first count: First, denial of the agreement; secondly,
that the ship was not read}' to receive the cargo at the time and place
agreed on ; third, to the second count, never indebted.

The defendant took out a summons for particulars of demand. This
was opposed by the plaintiff before a judge at Chambers, but was or-
dered, it being alleged that it was intended to pay mone^' into court.
A summons to plead a plea of pa3'ment into court was afterwards
taken out, but was abandoned, and the above pleas pleaded.

The particulars of demand were as follows : The plaintiff seeks to
recover £122 17s. for demurrage for detaining the ship mentioned in
the first count from the 1st January, 1858, to the 9th Februar}- in the
same year. And the plaintiff also claims the sum of £G8 8s. 9f?. for
loss in chartering and letting the ship for hire during the time it was
agreed to be hired b}' the defendant for a less sum of money, namely,
sixpence for each quarter of oats that the defendant had agreed to pay
for the use of the ship, and the proportion of primage thereon.

At the trial, before Martin, B., at the Middlesex Sittings in last
Easter Term, it appeared that the charter-party, on which the action
was brought, bearing date the 3d of August, 1857, was signed by
Martin M'Guire, " per proc. of Thomas M'Guire." In order to show
that Martin M'Guire was the agent of the defendant, it was proved
that the defendant had carried on business at Limerick as a corn mer-
chant till about three years previous to the signing of this charter,
when he left Limerick and went to London, leaving Martin M'Guire,
who was his brother, to conduct the business, which consisted in bu}'-
ing up corn for shipment. It was proved to be usual and prudent to
charter vessels beforehand for the purpose of forwarding corn, and that
Martin M'Guire had on previous occasions hired ships and signed
charter-parties " per proc." for the defendant. On the 19th of Decem-
ber, Messrs. Mulloch, who acted as brokers for the charterers, wrote to
inform the plaintiff that the charterer could not load the vessel. On
the 1st of January, 1858, the vessel was ready to receive her cargo,
of which due notice had been given on the previous day to Martin
M'Guire. The ship having lain twelve days, according to the charter,
notice was given on the 13th of January that she was on demurrage
pursuant to the charter. The ship lay till the 9th of February, when
she was chartered by several persons, of whom the defendant was one,
to carry a cargo of oats to London at l.s. Q,d. a quarter. Martin
M'Guire signed this charter-party for the defendant " per proc." The
captain stated that he could not get a charter sooner.

The defendant's case was that Martin M'Guire had no general au-
thority to charter vessels for him. The defendant proved that on
former occasions he had sent special instructions to Martin M'Guire as
to chartering vessels, and that he never authorized him to sign this
particular charter. As to the damages, it was proved that the plaintiflf

326 SMITH V. MfGUIRE. [CHAP. II.

might have got a cargo at an earlier period if the captain would have
allowed the broker, Mulloch, to fix a cargo on the 26th of January.
This the captain refused to do without consulting the plaintiff.

The learned judge asked the jurj- whether Martin M'Guire was per-
mitted and allowed by the defendant to act as his general agent at
Limerick, and told them that if so it was not material what the [irivate
arrangement between them was. With respect to the damages, his
lordship told the jury that the claim in the particulars was not a proper
estimate of the damage ; that the legal damage was the loss which had
arisen from the breach of the contract ; that from the amount of freight
which the ship would have earned if the charter-party had been per-
formed, there ought to be deducted the expenses which would have
been incurred in earning it, and also any profit which the ship earned
between the expiration of the lay days and the time when the employ-
ment of the ship under the charter-party would have ended. The jury
fouad a verdict for the plaintiff, with £191 bs. damages, being the
£122 17s. for demurrage for thirty-nine days, at £3 3.s. a day, and
£68 8s., the difference between the freight earned under the second
charter and that which would have been receivable under the first.

Shee^ Serjt., in the following term, obtained a rule nisi for a new
trial, on the ground that the learned judge had misdirected the jury
in telling them that they were at liberty to infer, from the fact that
Martin M'Guire had for a long time signed charter-parties for the defend-
ant, and acted as his agent, that he had authority to sign this charter-
party ; or why the damages should not be reduced to £68 8s., or such
other sum as the court should think fit, on the ground that the plaintiff
was not entitled to compensation for the detention of the ship during
the lay days, or for the interval between the expiration of the la}' days
and the 9th of February.

Prentice and Gordon Allan now showed cause.

Shee. Serjt., in support of the rule.

Pollock, C. B. With respect to the application for a new trial, I
am of opinion that the direction of m}' brother Martin was perfectly
correct. I think that questions of this kind, whether arising on a
charter-party, a bill of exchange, or an}- other commercial instrument,
or on a verbal conti-act, should be decided on this principle, — Has the
part}' who is charged with liability under the instrument or contract
authorized and permitted the person who has professed to act as his
agent, to act in such a manner and to such an extent that, from what
has occurred publicly, the public in general would have a right to rea-
sonably conclude, and persons dealing with him would naturally draw
the inference, that he was a general agent? If so, in my judgment,
the principal is bound, although, as between him and the agent, he
takes care on every occasion to give special instructions ; and I think
it makes no difference whatever, whether the agent acts as if he were
the principal, or professes to act as agent, as by signing " A. B., agent
for C. D." The expression " per procuration " does not always neces

SECT. III.] SMITH V. McGUIRE. 327

saril}' mean that the act is done under procuration. All that it in
realit}' means is this : " I am an agent not having any authority of my
own." Alexander v. M'Kenzie, 6 C. B. 766, was chiefly founded on tlie
case of Attwood v. Munnings, 7 B. & C. 278, where the agent was the
defendant's wife, and no doubt the authority was quite special. It
was not the authority which a tradesman gives to his shopman to sell
goods during his absence, and possibly carry on his trade while he is
abroad, but it was a particular authoritj' to perform certain acts for
certain specified objects ; and the court (particularly Holrovd, J.) ex-
pressed itself with reference to that circumstance. It frequently hap-
pens that, where a judgment is delivered either b}- the court or a judge,
expressions are used which apply to a particular state of facts, and, in
order to know what was decided, it is not sufficient merely to look at
the judgment, but the facts and circumstances of the case must also be
regarded. Now, in Attwood c. Munnings, Holroyd, J., said, " I agree
in thinking that the powers in question did not authorize this accept-
ance. The word ' procuration ' gave due notice to the plaintiffs, and
they were bound to ascertain, before they took the bill, that the ac-
ceptance was agreeable to the authority given." If a person professes
to conve}- an estate as trustee, the party taking the conveyance from
him is bound to ascertain that he had authority, as trustee, to convey
it ; but tlie same principle does not apply to commercial dealings. It
would be most inconvenient if a person could not go into a shop and
purchase an article without first asking the shopman whether he has
authority- to sell it. It ma}' be tiiat he was merely emploj'ed to sweep
the shop ; but it would be absurd to apply to the general business of
life the doctrine as to the necessit}- of ascertaining whether an agent is
acting within the scope of his authority, — indeed, the business of Lon-
don could not go on. In Attwood v. Munnings, Littledale, J., said :
" I am of the same opinion. It is said that third persons are not bound
to inquire into the making of a bill ; but that is not so where the ac-
ceptance appears to be by procuration." Therefore, if a person for
the first time meets with a bill accepted " per procuration," and chooses
to take it without making any inquiry, the loss will fall on him if the
acceptor had no authority. But the practical questions are. What is
the extent of inquiry which ought to be made? and what answers ma}-
be deemed satisfactory, so as to protect from loss, though it should
turn out that the authority has been exceeded? It is true, that if a bill
is accepted b}- A. on behalf of B., and it is known that B. has accepted
bills for A., many persons would take it for granted that there was
neither forgery nor fraud in the matter, and that the}' might safely
take it ; but if the law is complied with, and an inquiry made, to what
extent is it to go? I think that the holder is not bound to go to the
acceptor and say, " Have you a power of attorney, or other authorit},
to accept this bill ? " "When he has ascertained that the person who
has accepted the bill as agent or by procuration, is a clerk in the house,
and, in the course of his employment, has from day to day accepted

328 BRADY V. TODD. [CHAP. II.

bills of that sort, that is enough, and he need not ask for his power of
attorney or authority, nor whether that particular bill is on account of
the firm. When you find him in the house acting and recognized as
the agent of the firm, you need not make any further inquiry ; and yet
it may turn out that he has never accepted a bill without a schedule
being laid before him in the morning of all bills that were to be ac-
cepteil by him on that day. Persons are supposed to carry on their
business according to the ordinary arrangement of mankiml generally.
If a person conducts his business, as the defendant did, by an agent
who acts in his absence, in my judgment it is a question for the jury
whether, according to the ordinary mode in which business is carried
on, the reasonable conclusion to be drawn from these circumstances is
not that he had authority as a general agent ; and, if so, the principal
is bound, though it should turn out that he had limited the extent of
the agency by certain rules and regulations. The cases cited by my
brother Shee do not apply. If a man, by his conduct, holds out another
as his agent, by permitting him to act in that character and deal with
the world as a general agent, he must be taken to be the general agent
of the person for whom he so acts, and the latter is bound, though, in
a particular instance, the agent may have exceeded his authority. It is
so even in the case of a special agent ; as, for instance, if a man sends
his servant to market to sell goods, or a horse, for a certain price, and
the servant sells them for less, the master is bound b}^ it. There, even
the violation of a particular authority does not render the sale null and
void. Upon these grounds, it appears to me that the direction of my
brother Martin was in conformit}- with the law, and that the verdict
was right ; but, unless the parties come to some arrangement, there
must be a new trial, on the ground that the damages are not properly
assessed.* Rule accordingly.

BRADY V. TODD.

Common Pleas. 1861.

[9 C. B. N. s. 592.]

This was an action for the breach of a warranty on the sale of a
horse, that it was quiet in harness. The defendant by his pleas trav-
ersed the alleged warranty, and averred that the horse at the time of
the sale was quiet in harness.

The cause was tried before Cockburn, C.J., at the last Summer
Assizes at Maidstone, when the following facts appeared in evidence.
The defendant, who was a potato salesman in London, and who had a
farm in Essex which was under the care of a farm bailiff named Greig,

^ Concurring opinions by Watson and Martin, BB., are omitted. — Ed.

SECT. III.] BRADY V. TODD. 329

had in the month of February, 1860, purchased a horse which he sent
to the farm for tlie bailiff's use. Tlie plaintiff, an attorney, being
desirous of purchasing a horse, had emplo3'ed one Hart, a veterinary
surgeon, to look out for one for liim. Hart inquired of Greig whether
the defendant would sell his lioise ; and (according to the plaintiff's
evidence) after some correspondence, the plaintiff went to the farm
to see the horse, and in the course of a conversation with Greig on
the subject, the latter, in reply to the plaintiff's inquiry whether the
horse was quiet to drive, said, " He is perfectly quiet both in saddle
and harness. He is an honest horse. I assure you he is as quiet as
a horse can be." Upon this representation, after having had two
trials, the plaintiff bought the horse for thirty guineas. The horse
turned out to be not quiet in harness, but, on the contrar}-, extremely
vicious ; whereupon the present action was brought.

The defendant swore that he had not authorized his bailiff to war-
rant the horse ; and Greig also swore that he was not authorized to
give any warranty, and tliat he did not in fact give an}'.

It appeared that Greig had on two or three occasions sold horses for
the defendant, but whether with or without warranty did not appear.

On the part of the defendant, it was objected that, the authorit}- of
Greig to warrant being negatived, the plaintiff was not entitled to re-
cover ; for that there could be no implied authority to warrant unless
perhaps in the case of a servant of a horse-dealer.

For the plaintiff it was insisted that an authority to an agent to sell
and deliver a horse, or any other chattel, imports an authority in him to
warrant ; and that the representations of Greig in law amounted to a
warranty.

His lordship left it to the jury to say whether there was any war-
ranty, telling them that it was not necessarv that the word " warrant"
should be used, and whether Greig had authority in point of fact to
warrant, — reserving the question of implied authority for the court.

The jury having returned a verdict for the plaintiff, —

Montagu Chambers., Q. C, in Michaelmas term last, obtained a rule
nisi to enter a verdict for the defendant, or a nonsuit, pursuant to leave
reserved, "on the ground that there was no evidence of authority
in Greig to warrant, and that without express authority he had none,
and that there was evidence to prove that Greig had no such au-
thority ; " or for a new trial ''on the ground that the verdict was
against the evidence on the question of unquietness and on the ques-
tion of warranty."

Hawkins and Barnard showed cause.

Montagu Chambers, Q. C., and Deiimmi, in support of the rule.

Cur. adv. vult.

Erle, C. J., now delivered the judgment of the court : —

Upon this rule to set aside the verdict for the plaintiff and enter it
for the defendant on the plea denying the warranty of a horse, the
question has been whether the warranty by the defendant was proved.

330 BRADY V. TODD. [CHAP. U

The jury have found that Greig, in selling the horse for the defendant,
warranted it to be sound and quiet in harness. The defendant stated,
and it must on this motion be taken to be true, that he did not give
authority to Greig to give any warranty. The relevant facts are, that
the plaintiff applied to the defendant, who is not a dealer in horses, but
a tradesman with a farm, to sell the horse ; and that the defendant sent
his farm-bailiff, Greig, with the horse, to the plaintiff, and authorized
him to sell it for thirtj* guineas.

Tlie plaintiff contends that an authority to an agent to sell and deliver
imports an authority to him to warrant.

The subject has been frequently mentioned by judges and text-
writers ; but we cannot find that the point has ever been decided. It
is therefore necessarj' to consider it on principle.

The general rule, that the act of an agent does not bind his principal
unless it was within the authorit}' given to him, is clear. But the
plaintiff contended that the circumstances created an autliority in the
agent to warrant, on various grounds, — among others he referred to
cases where the agent has bj' law a general authority to bind his prin-
cipal, though as between themselves there was no such authorit}', such
as partners, masters of ships, and managers of trading business ; and
stress was laid on the expressions of several judges, that the servant of
a horse-dealer or liverj^-stable keeper can bind his master bj' a war-
rant}', though, as between themselves, there was an order not to war-
rant: see Helyear y. Hawke, 5 Esp. N. P. C. 72 ; Alexanders. Gibson,
2 Campb. 555 ; Fenn v. Harrison, 3 T. R. 757. We understand those
judges to refer to a general agent employed for a principal to carry on
his business, that is, the business of horse-dealing ; in which case there
would be by law the authorit}' here contended for. But the facts of the
present case do not bring the defendant within this rule, as he was not
shown to carry on an}- trade of dealing in horses.

It was also contended that a special agent, without any express
authority in fact, might have an authority by law to bind his principal ;
as, where a principal holds out that the agent has such authorit}', and
induces a party to deal with him on the faith that it is so. In such a
case the principal is concluded from denying this authorit}', as against
the party who believed what was held out, and acted on it : see Picker-
ing V. Busk, 15 East, 38. But the facts do not bring the defendant
within this rule.

The main reliance was placed on the argument that an authorit}' to
sell is by implication an authority to do all that in the usual course of
selling is required to complete a sale ; and that the question of war-
ranty is in the usual course of a sale required to be answered, and
that therefore the defendant by implication gave to Greig an authority
to answer that question, and to bind him by his answer. It was a part
of this argument that an agent authorized to sell and deliver a horse
is held out to the buyer as having authority to warrant. But on this
point also the plaintiff has in our judgment failed.

SECT. III.] EDMUNDS V. BUSHELL AND JONES. 331

We are aware that the question of warranty frequently arises upon
the sale of horses ; but we are also aware that sales may be made with-
out any warranty, or even an inquiry about warranty. If we laid down
for the first time that the servant of a private owner intrusted to sell
and deliver a horse on one particular occasion is tlierefore by law-
authorized to bind his master by a warranty, we should establish a pre-
cedent of dangerous consequence : for the liability- created hy a war-
ranty extending to unlvnown as well as known defects is greater
than is expected b}- persons unexperienced in law ; and, as everything
said by the seller in the bargaining may be evidence of warranty to the
etfect of what he said, an unguarded conversation with an illiterate
man sent to deliver a horse may be found to have created a liability
which would be a surprise equally to the servant and the master. We
therefore hold that the bu3er taking a warranty from such an agent as
was employed in this case, takes it at the risk of being able to prove
that he had the principal's authority ; and, if there was no authoritj' in
fact, the law from the circumstances does not in our opinion create it.

When the facts raise the question, it will be time enough to decide
the liability created b^' such a servant as a foreman alleged to be a
general agent, or such a special agent as a person intrusted with the
sale of a horse in a fair or other public mart, where stranger meets
stranger, and the usual course of business is for the person in posses-
sion of the horse, and appearing to be the owner, to have all the powers
of an owner in respect of the sale. The authority ma}- under such cir-
cumstances as are last referred to be implied, though the circumstances
of the present case do not create the same inference. It is unnecessary
to add, that, if the seller should repudiate the warranty by his agent, it
follows that the sale would be void, there being no question raised upon
this point. Judgment /or the defendant.^

EDMUNDS V. BUSHELL and JONES.

Queen's Bench. 1865.

[Z. R. 1 Q. B. 97.]

This was an action commenced under the Summary Procedure
on Bills of Exchange Act, 1855 (18 & 19 Vict., c. 67). The defend-

1 Compare Howard v. Sheward, L. R. 2 C. P. 148 (1866).

As to power to warrant in case of sale of personalty, see also Dingle v. Hare, 7
C. B. N. s. 14.5 (1859); Herring v. Skaggs. 62 Ala. 180 (1878) ; Perrine v. Cooley, 42
K. J. L. 62.3 (1880); Dayton v. HooglunH .39 Ohio St. 671 (1884); Wait v. Borne,
123 N. Y. 592 (1890).

As to power to warrant in case of sale of realty, see Peters v. Farnsworth, 15 Vt
155 (1843); Le Roy v. Beard, 8 How. 451, 465-469 (1850); Schultz v. Griffin, 121
N. Y. 294 (1890). — Ed.

332 EDMUNDS V. BUSHELL AND JONES. [CHAP. 11.

ant Bushell had not appeared, and judgment had been signed against
him.

The declaration was against Jones, as acceptor of a bill for £184,
dated 1st of February, 1865, at four months after date, drawn by
one Britten to his order, and indorsed by him to Taylor, and by Taylor
to the Birmingham and Midland Banking Company, of which the plain-
tiff was the public otticer.

Plea, that the defendant Jones did not accept the bill.

The cause was tried at the last Surrey Summer Assizes, before
Crompton, J., and the following facts were proved. The defendant
Jones was a wholesale straw hat manufacturer, who carried on business
at Luton, in Bedfordshire, and also until May, 1865, had a branch
establishment in Milk Street, London. The business in London was
carried on under the name of •' Bushell & Co." By an agreement
between the two defendants it was agreed that Bushell should enter
Jones's service as manager of the establishment in London, and that
he should be paid for his services quarterly an amount equal to one-
half of the net profit to be derived from the business carried on in
London, Jones opened an account in the name of "Bushell & Co.,"
at the London and County Bank, into which account Bushell was to
pay all sums which he received to the amount of £5. He had authority
from Jones to draw checks in the name of Bushell & Co. for the
purposes of the business, but he had no authorit}* to draw or accept
bills. In Jul}', 1864, Bushell accepted a bill in the name of Bushell
& Co., dated 9th of April, 1864, drawn upon Bushell & Co., and made
pa3'able at the London and County Bank. This bill was paid at
maturit}', and Jones did not know of the transaction until he saw the
amount entered in his pass-book as a payment. Jones then told
Bushell he had no authority to accept bills, and forbade him to do so.
Bushell, however, accepted three other bills, dated in November and
December, 1864, which fell due in February- and March following, and
were paid at the London and County Bank, and charged to Jones.
These four bills were given to persons with whom " Bushell & Co."
had dealings in the way of business. In consequence of these irregu-
larities Bushell was dismissed in May, 1865.

The acceptance to the bill sued upon was in the style of •' Bushell &
Co.," and was proved to be in the handwriting of Bushell. The bill
was taken by the banking company from Taylor, a customer, for a
good consideration, the company knowing nothing of Bushell & Co.

The jury found a verdict for the plaintiff, for £185 lis., leave being
reserved to move to enter a verdict for the defendant, if the Court
should be of opinion that there was no reasonable evidence of the
defendant Jones's liabilit}'.

Joseph JBroioi^ Q. C, moved accordingl}'. There is no evidence
to make Jones liable. In order to make him liable, either he must
have held himself out to the company as a partner, or have publicly
held himself out as connected with the firm; Jones's name did not

SECT, til] EDMUNDS V. BUSHELL AND JONES. 333

appear on the bill, nor was it shown that the company were aware of
his connection with the business, for he had never had a transaction
with them. In Young y. Axtell, cited in Waugh v. Carver, 1 8m. L.
C. 734, it is said if a person sutters his name to be used in a business,
and holds himself out as a partner, he will be certainly liable, though
a creditor of the firm does not at the time of dealing know that he was
a partner, or that his name was used. But this is questioned in the
note,^ and Dickenson v. Valpy, 10 B. & C. 140, is cited to show that
a nominal partner to be made liable must have held himself out, not
to the world, for that is a loose expression, but to the creditor. The
banking company did not take the bill on the faith of Jones's apparent
responsibility. He is not liable unless it can be shown that he repre-
sented himself to the banking company as a partner. In Carter v.
Whalley, 1 B. & Ad. 11, a person was held not to be liable as a
partner unless the creditor had dealt with him in the character of a
partner, or he had held himself out so publicly to be one as that the
creditor must have known of it.

[CocKBURN, C. J. This is not a case of nominal partners : here
the actual owner of the business enii)loys Bushell in the business as
his manager and ostensible principal : it is a question of agency.]

Jones never held Bushell out as a partner to the banking company,
and is not bound by his acts ; he has never in an}' way deceived the
company.

CocKBURN, C. J. In this case there ought to be no rule. The
defendant carried on business both at Luton and in London. In
London the business was carried on in the name of Bushell & Co.,
Jones at the same time employing Bushell as his manager; Bushell
was therefore the agent of the defendant Jones, and Jones was the
principal, but he held out Bushell as the principal and owner of the
business. That being so, the case falls within the well-established
principle, that if a person employs another as an agent in a character
which involves a particular authority, he cannot by a secret reserva-
tion divest him of that authority. It is clear, therefore, that Bushell
must be taken to have had authority to do whatever was necessary as
incidental to carrying on the business ; and to draw and accept bills
of exchange is incidental to it, and Bushell cannot be divested of the
apparent authority as against third persons by a secret reservation.
1 think Jones was properl}' held to be liable on the bill.

Mellor, J. I am of the same opinion. The case differs from
those in which the question turns upon the fact whether A or B is a
partner in the same firm. Here Jones puts forward Bushell as a
principal, and it is in the name of Bushell & Co. that the business is
carried on. It is not a question of partnership, but whether Bushell,
who has been held out to everybody as a partner, has authority to
bind Jones. It would be very dangerous to hold that a person who

1 I Sm. L. C. 747. — Rep.

334 BAINES I'. EWING. [CHAP. IT.

allows an agent to act as a principal in caiT3-ing on a business, and
invests him with an apparent authority to enter into contracts inciden-
tal to it, could limit that authority by a secret reservation. I see no
reason for disturbing the verdict.

Shee, J. The leave reserved in this case was to enter a verdict for
the defendant, if the Court should be of opinion that there was no
reasonable evidence on which the jury could find for the plaintiff, and,
in my opinion, there was reasonable evidence to sustain the verdict.
I think we are not in any danger of disturbing the cases which relate
to the law of partnership. In this case it appears that Jones cairied
on two distinct businesses. The business in London was carried on
for his benefit, and with his sanction, in the name of Bushell & Co.,
and was a business in which a partner would be presumed to have
authority to accept bills ; and the natural inference, when a person
allows an agent to carry on a particular business as an ostensible prin-
cipal, is that he clothes him with every authority incidental to a prin-
cipal in the business. liule refused}

BAINES V. EWING.

Exchequer. 1866.
[AH.Sr C. 511.2]

Declaration on a policy of insurance on the ship " City of Bris-
bane." The declaration was in the ordinary form, and averred that
the defendant subscribed the policy for the sura of £150.

Plea. That the defendant did not subscribe the policy, and did not
become an insurer as alleged. Issue thereon.

At the trial, before Lush, J., at the last Liverpool Spring Assizes,
the following facts were admitted by counsel. In July, 1861, the de-
fendant, who resided at Richmond, near London, authoi'ized Messrs.
North, Ewing & Co., insurance brokers at Liverpool, to underwrite
policies on marine risks in his name, to the extent specified in the writ-
ten authority sent to them, which was as follows : —

" Messrs. North, Ewing, & Company.
" Gentlemen,

"I hereby authorize 3'ou. in my name, on my behalf, to under-
write policies of insurance against marine risks not exceeding £100 by
any one vessel ; and I authorize you to hold and retain all premiums
received for me as a fund to answer losses, it being understood that all
accounts between us are to be settled according to the usual course of
transacting business between an underwriter and a broker, as customary

1 See Tn re Adansonia Fibre Co., L. R. 9 Ch. 635, 647, 648 (1874). — Ed.

2 8. c. L. R. 1 Ex. 320. —Ed.

SECT. III.] BAINES V. EWING. 335

in Liverpool ; separate deposit account to l)e kept at the bank, and ac-
counts to be rendered half yearly.

" I remain, &c.,

" WlI.lJAM EWING.

" Riclimond, 26th July, 1861."

At Liverpool there is an Underwriters' Association, and when a per-
son desires to become an underwriter he authorizes a broker to under-
write for him. The broker submits the name of his principal to the
Underwriters' Association, and, if no objection is made to it, the name
is entered in their book, and then tlie broker underwrites in the name
of his principal. From the time that the defendant gave to Messrs.
North, Ewing & Co. the above authority to underwrite for him, they
signed policies in his name. It is well known in Liverpool that in
almost all cases, if not in all, a limit is put to the amount for which
the broker can sign his principal's name. The principal allows the
broker to sign for a fixed sum on each of any number of ships, and on
an3- terras he pleases ; but when the principal's name is given to the
Association that limit is not mentioned, and it is in fact known only
to the broker and his principal. The plaintiffs did not know of the
limit imposed bj- the defendant, nor that it had in this case been ex-
ceeded ; neither was the defendant aware until afterwards that the limit
had been exceeded, nor did he subsequently- ratifj' the act of his broker.
On the 2d October, 1862, and whilst the above authority was in force,
the policy on which this action was brought was underwritten by
Messrs. North, Ewing & Co. in tlie defendant's name for £150. The
ship was totally lost. 'By consent a verdict was entered for the plain-
tiffs for £150, leave being reserved to the defendant to enter a nonsuit
or a verdict for him, or to reduce the damages to £100.

EdtvardtTarnes, in last Easter Term, obtained a rule nisi accordingl}',
on tlie ground that there was no evidence of authority given b}- the
defendant to underwrite the policy" ; against which

Brett and Quain now showed cause. First, the defendant is liable
on this policj' to the extent of £150. He held out the brokers as his
agents, to underwrite for him ; and although the_y were not general
agents for all purposes, they were for the particular purpose of signing
policies in his name. A general agent is a person whom a man puts in
his place to transact all his business of a particular kind. Smith's Mer-
cantile Law, p. 128, 7th ed. In the case of a general agent " the princi-
pal will be bound by the acts of his agent within the scope of the genei-al
authority conferred on him, although he violates bv those acts his pri-
vate instructions and directions, which are given to him bv the principal,
limiting, qualifying, suspending, or prohibiting the exercise of such au-
thority under particular circumstances." Story on Agenc}", § 126, p. 151,
4th ed. The business of an underwriter could not be carried on if the
assured was bound on every occasion to inquire into the extent of the
agent's autiiority. Of whom is he to inquire? If the agent says that
he is authorized to underwrite for £150, must inquiry be made of the

336 BAINES V. EWING. [CHAP. II.

principal in London wliether tliat is true? The restrictions to which
the agent is subject, even where he exceeds his authority-, do not avoid
the policj' unless the assured had knowledge of them. If the restric-
tions are private and confidential, they are, as against third persons,
inoperative and void, unless disclosed. Duer on Marine Insurance,
§§ 49, 50, p. 346, note {h), p. 347. Then the question is, What are the
usual incidents of an agency to underwrite in the principal's name?
One of them is to underwrite for different amounts according to the
agent's discretion. Is tliat altered by the fact that it is well known in
Liverpool that in almost all cases the agent's authority is limited, but
the limit is not made known to the public? The authority of a general
agent to perform all things usual in the line of business in which he is
employed cannot be limited by any private order or direction not known
to the party dealing with him. Smith's Mercantile Law, p. 128, 7th ed.
In Story on Agency, § 127, p. 153, 4th ed., it is said that, '' if a per-
son is lield out to third persons, or to the public at large, by his prin-
cipal, as having a general authority to act for and to bind him in a
particular business or employment, it would be the height of injustice,
and lead to the grossest frauds, to allow him to set up his own secret
and private instructions to the agent, limiting that authority." If the
limit is not disclosed, it is the same as if there was none. Where a
factor has private instructions from his principal not to sell under a
certain sum, and he sells for less, the principal is bound. This case is
within the law, as laid down in Stor^' on Agenc}', § 131, p. 185, 4th ed.

Secondly, the defendant is liable, at all events, to the extent of £100,
because he has authorized his agents to underwrite for that amount.
" Where a man does less than the authorit}' committed to him, the act
is void ; but where he does that which he is authorized to do and some-
thing more, it is good for that which is warranted and void for the
rest." Co. Litt. 258 a. [Bramv^ell, B. I can well understand that if
a man is authorized to make a feoffment of one acre and he makes
a feoffment of two, it is good for the one and void as to the other ;
but a contract is an entire thing and indivisble. Martin, B. If the
defendant is bound at all, he was bound when his agent signed the
policy.]

Edward James, Mellish, and Holland appeared to support the rule,
but were not called upon to argue.

Martin, B. As to the last point, I think it scarcel}^ arguable. This
is an entire and indivisible contract to pay ^150, and it is not valid
because the broker had authority' only to make a contract to the extent
of £100.

With respect to the other point, it seems to me clear. A contract
was made b}' an agent on behalf of his principal ; and an action having
been brought against the principal upon that contract, it became neces-
sary for the plaintiff to prove the agent's authorit}' to make it. Ac-
cordingly' he produced and proved this document : "I hereb}' authorize
you, in my name, on my behalf, to underwrite policies of insurance

SECT. III.] BAINES V. EWING. 337

against marine risks not exceeding £100 by any one vessel." That au-
thority was produced to prove a declaration which alleges that a policy
was subscribed b^' the defendant for £150. If it had stood there, it
would be obvious that the agent made a contract which he had no au-
thority to make. But then it is said that there -is a course of business
in Liverpool by which brokers acting on behalf of underwriters make
valid contracts in the names of their principals. But it is well known
that a limit is placed upon the amount for which the broker can sign
his principal's name. In this case the broker could sign for £100 on
any number of ships. When the name of the underwriter is given to
the Underwriters' Association the limit is not disclosed, and it is known
only to the broker and his principal. Now, the plaintiff having pro-
duced the written authority, by which the contract contained in this
policy was certainly not authorized, it is contended that, by reason of
the course of business in Liverpool, there was virtually an authority to
underwrite for £150, because it is well known that there is some limit,
and therefore everj' man who makes a contract of this kind has notice
that he is dealing with an agent who has only a limited authority. But
when a principal has put a limit to his agent's authority, and a person
contracts with knowledge that there is always some limit, how can it
be said that the agent may bind his principal to a greater extent than
the limit? This view is in accordance with common sense, and no re-
finements of text writers can alter it.

Bramwell, B. I am of the same opinion. The actual authorit}'
given to the agent cannot be relied on, and therefore the counsel for
the plaintiff are obliged to relv upon a supposed authoritv which the
agent had not, that is to sa}-, that the principal held out the broker as
his agent, having authority to sign policies in his name for more than
£100. But that is not true. The utmost that can be said is that the
principal held out the broker as having that authority which a Liverpool
broker ordinaril}- has. It seems to me almost a matter of logical dem-
onstration that the plaintiffs proposition is erroneous. "What would
have been the case if there had been no limitation upon Liverpool
brokers in general it is unnecessar}" to sa}', and it might give rise to a
question of some difficulty.

Reference has been made to Story on Agency, § 131, where it is said
that the distinction between general agents and limited or special agents
may be illustrated by the case of a factor who has a general authority
to sell ; and if in selling he violates his private instructions, the princi-
pal is nevertheless bound. Amongst others, the case of Fenn v. Har-
rison, 3 T. R. 757, 762, is cited, but it does not warrant the proposition.
I can well understand that, if a factor is simply employed to sell, he
has a general authority to sell in the usual way ; but I doubt whether
when a factor is authorized to sell at a particular price he can bind his
principal by a sale at a less price. I do not think that any of the authori-
ties referred to by Mr. Justice Story warrant such an inference.

Again, we are asked how is the business of an underwriter to be

338 BAINES V. EWING. [CHAP. II.

carried on if the assured is bound on ever}' occasion to inquire into the
extent of the broker's authority. The answer is twofold : first, the busi-
ness is carried on ; and, secondly, it will and ought to be carried on bj'
the assured trusting to the honesty of the broker that he is not telling
an untruth when lie assumes not to exceed his autliority. Generally-
speaking, the trust is well founded ; for although brokers sometimes
pledge the credit of their principals beyond what is right, they do not
usually exercise an authority which the}- do not possess.

CiiANNELL, B. I am of opinion that so much of the rule as seeks
to set aside the verdict for the plaintiff and enter a nonsuit ought to be
made absolute. With respect to the other branch of the rule, which
seeks to reduce the damages, it only becomes important in one point of
view, for if the defendant is right in his contention the plaintiflfs cannot
sever the amount and maintain their verdict with £100 damages.

The question is, therefore, whether the defendant is liable on the
polic}' declared on. Now, the express authority given by the plaintiff
not only does not establish a liability, but negatives it. But then it is
said that we ought not to look at that authority simpUciter, but in con-
nection with the fact that the limit is never disclosed ; and it is con-
tended the authorit}- given to a general agent cannot be limited bj-
secret instructions from his principal inconsistent with that authority.
I do not wish to interfere with that as a general rule of law ; nor do I
think that in order to appl}' that rule the agent must be a general agent
for all purposes. Perhaps the expression is incorrect, but there may
be a special general agent ; for instance, an agent to sign bills of ex-
change or subscribe policies of insurance ; and although his authority
does not extend to other matters, it ma}- be general as to the particular
business in which he is employed. But looking at the facts of this case,
and the admission that it is well known in Liverpool that there is a limit
to a broker's authority to underwrite policies, although the precise
amount is not disclosed (which I think makes no difference), I am of
opinion that the broker was not in the situation of a general agent so
as to make applicable the rule of law relied on in the argument for the
plaintiffs.

For these reasons I agree that the rule to enter a nonsuit ought to be
absolute. Hule absolute for a nonsuit}

1 See Thomas r. Joslin, 30 Miun. 388 (1883). Compare Brocklesby v. Temperance
Building Society, [1895] A. C. 173. — Ed.

SECT. Ill] WARD V. SMITH. 339

WARD V. SMITH.
Supreme Court of the United States. 1868.

[7 IFa//. 447.]

Error to the Circuit Court of Maryland.

In August, 1860, William Ward, a resident of Alexandria in
Virginia, purchased of one Smith, of the same place, then administrator
of the estate of Aaron Leggett, deceased, certain real property situated
in the State of Virginia, and gave him for the consideration monej'
three joint and several bonds of himself and Francis Ward. These
bonds, each of which was for a sum exceeding four thousand dollars,
bore date of the 22d of that month, payable, with interest, in six,
twelve, and eighteen months after date, "■ at the office of discount and
deposit of the Farmers' Bank of Virginia, at Alexandria."

In Februar}', 1861, the first bond was deposited at the bank desig-
nated for collection, ^t the time there was indorsed upon it a credit
of over five hundred dollars ; and it was admitted that, subsequentl}',
the further sum of twenty-five hundred dollars was received by Smith,
and that the amount of certain taxes on the estate purchased, paid by
the Wards, was to be deducted.

In May, 1861, Smith left Alexandria, where he then resided, and
went to Prince William County, Virginia, and remained within the
Confederate military lines during the continuance of the civil war.
He took with him the other two bonds, which were never deposited at
the Farmers' Bank for collection. Whilst he was thus absent from
Alexandria, William Ward deposited with the bank to his credit, at
different times between June, 1861, and April, 1862, various sums, in
notes of different banks of Virginia, the nominal amount of which
exceeded by several thousand dollars the balance due on the first bond.
These notes were at a discount at the times the}- were deposited, vary-
ing from eleven to twenty-three per cent. The cashier of the bank
indorsed the several sums thus received as credits on the first bond ;
but he testified that he made the indorsement without the knowledge or
request of Smith. It was not until June, 1865, that Smith was informed
of the deposits to his credit, and he at once refused to sanction the
transaction and accept the deposits, and gave notice to the cashier of
the bank and to the Wards, ol^ligees in the bond, of his refusal. The
cashier thereupon erased the indorsements made by him on the bond.

Smith now brought the present action upon the three bonds to
recover their entire amount, less the sum credited on the first bond
when it was deposited, the sum of twent3'-five hundred dollars subse-
quenth' received by the plaintiff, and the amount of the taxes paid by
the defendants on the estate purchased.

The court below instructed the jury that, if they found that the
defendants executed the bonds, the plaintiff was entitled to recover

340 WARD V. SMITH. [CIIAP. II.

their amounts, less the credit indorsed on the first one, and the taxes
paid b}' defendants, and the subsequent payment to the plaintiff, with
interest on the same. The plaintiff recovered, and the defendants
brought the case to this court b}- writ of error.

Messrs. Drown and F. \V. Brune, for the plaintiffs in error.

Messrs. M. J. and J, L. Droit., contra.

Mk. Justice P'ield, after stating the case, delivered the opinion of
the court, as follows.

The defendants claim that they are entitled to have the amounts
the}' deposited at the Farmers' Bank in Alexandria credited to them
on the bonds in suit, and allowed as a set-off to the demand of the
plaintiff. The}' make this claim upon these grounds : that by the pro-
vision in the bonds, making them payable at the Farmers' Bank, the
parties contracted that the bonds should be deposited there for collec-
tion either before or at maturity' ; that the bank was thereby constituted,
whether the instruments were or were not deposited with it, the agent
of the plaintiff for their collectiooi^i*. and that as such agent it could
receive in payment, equally with gold and silver, the notes of any
banks, whether circulating at par or below par, and discharge the
obligors.

We do not state these grounds in the precise language of counsel,
but we state them substantially.

It is undoubtedly true that the designation of the place of payment
in the bonds imported a stipulation that their holder should have them
at the bank, when due, to receive payment, and that the obligors
would produce there the funds to pay them. It was inserted for the
mutual convenience of the parties. And it is the general usage in
such cases for the holder of the instrument to lodge it with the bank
for collection, and the part}' bound for its payment can call there and
take it up. If the instrument be not there lodged, and the obligor
is there at its maturity with the necessary' funds to pa}' it, he so far
satisfies the contract that he cannot be made responsible for any future
damages, either as costs of suit or interest, for delay. When the
instrument is lodged with the bank for collection, the bank becomes
the agent of the payee or obligee to receive payment. The agency
extends no further, and without special authority an agent can only
receive payment of the debt due his principal in the legal currency of
the country, or in bills which pass as money at their par value by
the common consent of the community. In the case at bar only one
bond was deposited with the Farmers' Bank. That institution there-
fore, was only agent of the payee for its collection. It had no author-
ity to receive payment of the other bonds for him or on his account.
Whatever it may have received from the obligors to be applied on the
other bonds, it received as their agent, not as the agent of the obligee.
If the notes have depreciated since in its possession, the loss must be
adjusted between the bank and the depositors ; it cannot fall upon the
holder of the bonds.

SECT. III.J WAKD V. SMITH. 341

But even as agent of the payee of the first bond, the bank was not
authorized to receive in its payment depreciated notes of the banks of
Virginia. The fact that tliose notes constituted the principal currency
in wiiich the ordinar}' transactions of business were conducted in
Alexandria, cannot alter the law. The notes were not a legal tender
for the debt, nor could the}- have been sold for the amount due in legal
currencv. The doctrine that bank bills are a good tender, unless
objected to at tlie time, on the ground that the}- are not money, only
applies to current bills, which are redeemed at the counter of the bank
on presentation, and pass at par value in business transactions at the
place where offered. Notes not thus current at their par value, nor
redeemable on presentation, are not a good tender to principal or
agent, ^whether they are objected to at tlie time or not.

In Ontario Bank v. Lightbody, 13 Wendell, 105, it was held that
the payment of a check in the bill of a bank which had previously
•suspended was not a satisfaction of the debt, though the suspension
was unknown by either of the parties, and the bill was current at the
time, the court observing that the bills of banks could only be con-
sidered and treated as money so long as they are redeemed by the
bank in specie.

That the power of a collecting agent by the general law is limited
to receiving for the debt of his principal that which the law declares to
be a legal tender, or which is by common consent considered and
treated as money, and passes as such at par, is established by all the
authorities. The only condition they impose upon the principal, if
anything else is received by his agent, is, that he shall inform the
debtor that he refuses to sanction the unauthorized transaction within
a reasonable period after it is brought to his knowledge. Story on
Promissory Notes, §§ 115, 389 ; Graydon v. Patterson, 18 Iowa, 256 ;
Ward ?'. Evans, 2 Lord Raymond, 930 ; Howard v. Chapman, 4 Car-
rington & Payne, 508.

The objection that the bonds did not draw interest pending the
civil war is not tenable. The defendant Ward, who purchased the
land, was the principal debtor, and he resided within the lines of
the Union forces, and the bonds were there payable. It is not necessary
to consider here whether the rule that interest is not recoverable on
debts between alien enemies during war of their respective countries,
is applicable to debts between citizens of States in rebellion and
citizens of States adhering, to the national government in the late
civil war. That rule can only apply when the money is to be paid to
the belligerent directly. When an agent appointed to receive the
money resides within the same jurisdiction with the debtor, the latter
cannot justify his refusal to pay the demand, and, of course, the
interest which it bears. It does not follow that the agent, if he receive
the money, will violate the law by remitting it to his alien principal.
" The rule," says Mr. Justice Washington, in Conn v. Penn, " can
never apply in cases where the creditor, although a subject of the

342 STEWART V. WOODWAKD. [CHAP. II.

enemy, remains in tbe countiy of the debtor, or has a known agent
there authorized to receive the debt, because the payment to such
creditor or bis agent could in no respect be construed into a violation
of the duties imposed by a state of war upon the debtor. The
payment in such cases is not made to an enemy, and it is no ob-
jection tliat the agent may possibly remit the money to his principal.
If he should do so, the offence is imputable to him, and not to the
person paying him the money." 1 Peters's Circuit Court, 496 ; Dennis-
ton V. Imbrie, 3 Washington do. 396. Nor can the rule apply when
one of several joint del)tors resides within the same country with the
creditor, or with the known agent of the creditor. It was so held in
Paul V. Christie, 4 Harris & McHenrv, 161.

Here the principal debtor resided, and the agent of the creditor for
the collection of the first bond was situated within the Federal lines and
jurisdiction. No rule respecting intercourse with the enemy could appl}'
as between Marbury, the cashier of the bank at Alexandria, and Ward,
the principal debtor residing at the same place.

Tbe principal debtor, being within the Union lines, could have pro-
tected himself against the running of interest on the other two bonds
bj' attending on their maturity at the bank, where the}' were made
pa3-able, with the funds necessary to pay them. If the creditor within
the Confederate lines had not in that event an agent present to receive
pa^'ment and surrender the bonds, he would have lost the right to claim
subsequent interest. Judgment affirmed}

STEWART r. WOODWARD.
Supreme Court of Vermont. 1877.

[50 Vt. 78.]

Book account. The auditor reported substantially as follows. The
account upon which the plaintiff seeks to recover, is for a suit of
clothes, and various articles of clothing. The defendant did not deny
the receipt of any of tbe articles charged, except a vest and a box of
cuffs, and those items I disallowed for want of proof. The plaintiffs,
I find, are entitled to recover for the remainder of tbe account, unless
the Court should be of opinion, upon the following statement of facts,
that tiie defendant is not liable. In January, 1874, the plaintiffs, who
reside in Concord, N. H., and are there engaged in business as mer-
chant tailors, started a branch house in Montpelier. Neither of the
plaintiffs personally superintended the business there, but they em-
ployed Fred. R. Stevens to assist in selling goods, and espcciall}' to
look after the furnisliing department, and A. S. Currier, whom they

1 Compare Oliver v. Sterling, 20 Ohio St. 391 (1870). — Ed.

SECT. III.] STEWART V. WOODWAKD. 343

had before employed as a general agent, who was to do the cutting,
and order, sell, and superintend the making up of the goods, and draw
checks on the bank, in Montpelier, where the firm kept a deposit, to
pay the current expenses of the firm. The agreed price for Currier's
work was $18 per week. .Soon after Currier comnu-nced work he and
his family fell ill, and he employed the defendant, wiio was a physician,
until his bill was greater than the account in suit. Ciurier solicited
the defendant to take his pay out of the store, and to have a new suit
of clothes, and told liim tliat the goods he took should apply in pay-
ment of his bill for medical attendance. The defendant took the goods,
relying on what Currier told him, supposing that Currier had autliorit}'
to dispose of the goods in that wa}', and supposing that he was getting
pay for his account against Currier ; otherwise he would not have taken
the goods. At the time the goods were taken, they were charged to
the defendant on the plaintiffs' books, and at the time the plaintifll's'
business was closed in Montpelier, in July, 1874, had not been trans-
ferred thereon to the account of Currier. The plaintiffs made no ques-
tion but that Currier had the right to use enough of their funds to pay
himself his wages. At the time plaintiffs closed out, owing to sick-
ness, or other causes. Currier had taken from plaintiffs' funds more
than the amount of his wages, and he took more than the amount
of the account against the defendant, after the goods were bought.
The defendant offered evidence tending to show that Currier had
agreed to pay, and had paid, other of his private bills out of the
store, to which the plaintiffs objected ; but the auditor received it, sub-
ject to legal objection, and finds therefrom only that such agreements
and payments were made. If, upon the foregoing facts, the Court
should be of opinion tliat the plaintilTs are entitled to recover, I find
due the plaintiffs, with interest to date, $61.73. The defendant also
oflTered evidence tending to show that one of the plaintiffs, before the
house was established at Montpelier, had a conversation with the de-
fendant in which he informed him that Currier was to have an interest
in the business ; but I do not find that, after looking up the business
and deciding to establish the branch house, the plaintiffs ever held out
that Currier was anything but an emploj'ee. The defendant also offered
evidence tending to show that Currier often told diflTerent parties that
he had an interest in the concern, to which the plaintiffs objected, but
which was received subject to legal objection. I find therefrom that
some parties, including the defendant, understood him to mean that
either he was a partner in the firm or had some interest beyond that of
an employee, although I do not find that Currier ever gave that expla-
nation of what he said ; and that that phrase is just as consistent with
the idea that his interest was only tliat of an employee. The sign at
the store was, " T. "W. & J. H. Stewart. A. S. Currier, cutter'*; and
they advertised under that name in one or more papers published at
Montpelier. T do not find that Currier, as the general agent of the
plaintiffs, had, in the management of the business, authoritj' co-exten-

344 STEWART V. WOODWARD. [CHAP. II.

sive with that of either of the partners; but I do find that Currier, as
such agent, had authority to do all things necessary and proper to be
done, and that could legitimately be done, in running the business
established in Montpelier. The Court, at the March term, 1877, Red-
field, J. presiding, rendered judgment, jaro/orma, on the report for the
defendant; to wliich the plaintiffs excepted.

Gleason and Field, for the plaintiffs.

Hiath and Carleton, for the defendant.

The opinion of the Court was delivered by

Powers, J. The report of the auditor states that Currier was the
general agent of the plaintiffs in the conduct of their business at Mont-
pelier. His authority there empowered him to do all things usual and
useful to conduct the business of merchant-tailors. A general agency
is, however, a restricted service. The agent cannot go outside the
proper scope of his principal's business. So far as the business of his
principal is concerned, he may do all that his principal could do. He
cannot steal his principal's goods, nor appropriate them to his own use.
He can only appropriate them to the use and profit of the principal.
Persons dealing with a general agent are bound to measure the scope
of his authority, as they are in dealing with a special agent. Although
the compass of authority in the one case is wider than in the other,
still it is to be understood that it has its limits. It is to be understood
that it is an agent, not a principal, who acts. Lapoint v. Scott, 36
Vt. 608.

The defendant's good faith in the transaction avails him nothing. It
does not cure Currier's bad faith.

The plaintiffs have not misled the defendant. They notified ever}'-
bod\' that Currier was an agent, authorized to sell their goods. Pur-
chasers understood the}' were buying goods of the plaintiffs through
Currier as their salesman, and that the pay went, or should go, to the
plaintiffs.

The defendant purchased the goods sued for, and attempted a mode
of payment which he was bound to know was unauthorized. He has
had the goods and converted them to his own use, never having paid
the plaintiffs for them. The implied promise arising from taking the
benefit of the delivery of them, is sufficient to warrant a recovery in
this action.

Judgment reversed, and judgment on the re'port for the plahitijfs.^

1 See Holton v. Smith, 7 N. H. 446 (1835) ; Benny v. Rhodes, 18 Mo. 147 (1853) ;
Benny v. Pegram, 18 Mo. 191 (1853) ; Aultman v. Lee, 43 Iowa, 404 (1876) ; Williams
p. Johnston, 92 N. Car. 532 (1885) ; Dowden v. Cryder, 55 N. J. L. 329 (1893).— Ed.

SECT. III.] BENTLEY V. DOGGETT. 345

BENTLEY v. DOGGETT.
Supreme Court oe Wisconsin. 1881.

[51 Wis. 224.]

Appeal from the Circuit Court for Grant County.

Action to recover $oO, with interest, upon an account for livery fur-
nished in February and May, 1875, to one I. C. Otis, a servant and
agent of the defendants, which livery, it is alleged in the complaint,
"• was used and employed b}- the said I. C. Otis in and about the busi-
ness of the said defendants, and at their special instance and request."
The account attached to the complaint was made out against Otis.
The facts shown by the evidence, and the exceptions relied upon by the
defendants, are thus stated by Mr. Justice Taylor : —

" The plaintiff kept a livery stable in Platte ville, in this State, and
in February and May, 1875, he let one I. C. Otis have horses and car-
riages to transport said Otis and his trunks from place to place, and
the value of the use of the horses and carriages was the sum of S50, of
which an itemized account is given. Said Otis was at the time in
the employ of the defendants, a firm of merchants in the cit}- of
Chicago, and was travelling for them, selling goods by sample and
collecting bills for goods sold by him for said firm ; the livery was fur-
nished to Otis to transact his legitimate business for said firm ; such
livery was necessary and convenient for the transaction of the business
of said Otis ; and he had failed to pay therefor. The evidence also
shows that Otis was paid a fixed salary by the defendants, and his
expenses whilst travelling for them.

" On the trial, the defendants ofl"ered to prove that the}- alwaj-s
furnished Otis, as the}- did all their other travelling salesmen, suflScient
money to pa}- all their expenses ; that he was so furnished with suffi-
cient money at the time this bill was made ; that he had no authorit}'
to incur any liabilit}' whatever against the firm ; and that subsequently
to the making of this bill by Otis, and without any knowledge that the
plaintiff had any such bill against them or Otis, they had settled with
said Otis, and allowed him in such settlement the amount of plaintiff's
bill, as mone}- expended by him in their employment. The evidence
further shows that the charges made on the plaintiff's books for said
bill were all made against I. C. Otis, and not against these defendants,
and that no demand was made of the defendants for the payment of
the bill until after this action was commenced. The defendants offered
to prove on the trial that it is a general custom, and was when this bill
was made, among the commercial houses in the city of Chicago, in
sending out travelling agents to sell goods for their employers, to fur-
nish them with sufficient money to pay all their hotel bills and travel-
ling and other expenses, and that in no instance are such agents
permitted to pledge the credit of their principals or incur any liability

346 BENTLEY V. DOGGETT. [CHAP. II.

against their emplo3'ers. This evidence was objected to by the plaintiff,
and excluded.

"Upon the close of the evidence the defendants requested the Court
to submit the following questions to the jur^-, in the way of a special
verdict: (1) Was the credit given by the plaintiff to the defendants
Doggett, Bassett & Hills, or was it given to I. C. Otis, at the time the
livery was furnished him ? (2) Did or did not the defendants furnish
I. C. Otis with sufficient money with which to pay his travelling ex-
penses at the time and prior to his starting out on these trips to sell
the goods of the defendants? (3) Did or did not the defendants give
any authority to I. C. Otis to obtain liver}' on credit? The Court
declined to sul)mit to the jury the second and third questions pro-
posed, and submitted the first; and in answer to that question the
jury found as follows : ' We, the jury, find that the livery was furnished
upon the credit of Doggett, Bassett & Hills.'

" There was no question made as to the amount of the plaintiff's bill,
nor as to the facts that it was unpaid, and that the livery was used by
I. C. Otis in the pursuit of his business as a (;omraercial agent in the
employ of the defendants. The defendants offered to show upon thQ
trial that they had furnished Otis with sufficient money to pay all his
expenses and livery bills, and that he had no authority and was forbid-
den by them to pledge the credit of the defendants for such bills ; but
they did not offer to show that these facts were known to the plaintiff
when he furnished the livery to their agent, Otis. The court below
held that, a knowledge of these restrictions upon the power of their
agent not having been brought home to the plaintiff at the time he fur-
nished the livery to the agent, Otis, they were not material to the issue.
and should be disregarded by the jury in making up their verdict ; and
it entirel}' withdrew them from their consideration, l)y refusing to sub-
mit the second and third questions propounded by the defendant for a
special verdict."

Tlie jury found specially that the livery was furnished upon the
credit of defendants, and also rendered a general verdict in favor of
the plaintiff ; defendants' motion for a new trial was denied ; and they
appealed from a judgment on the verdict.

For the appellants there was a brief by W. H. Beebe, their attorney,
with A. R. Bushnell^ of counsel, and oral argument by Mr. Beebe.

William E. Carter, for the respondent.

Taylor, J. It is clearly shown by the evidence that it was not onh'
convenient but necessary for the agent, Otis, to have the use of horses
and carriages in order to transact the business he was employed to
transact ; and the only question is whether he could bind his princi-
pals b}' hiring them upon their credit. Otis was the agent of the
defendants for the purpose of travelling about the countr}' with samples
of their merchandise, contained in trunks, which rendered it necessary
to have a team and carriage to transport him and his samples from
place to place, with full authorit}- to sell their merchandise by sample

SECT. III.] BENTLEY V. DOGGETT. - 347

to customers, and direct the same to be delivered according to his
orders. The defendants not having furnished their agent the neces-
sary teams and carriages for transportation, he clearly had the right to
hire the same and i)ay their hire out of the funds in his hands belong-
ing to them. Tliis is admitted by all parties. The real question is,
Can the agent, having the money of his principals in his possession
for the purpose of paying such hire, b3' neglecting to pay for it, charge
them with the payment to the part}- furnishing the same, such part}'
being ignorant at the time of furnishing the same that the agent was
furnished by his principals with money and forbidden to pledge their
credit for the same?

There can be no question that, from the nature of the business
required to be done by their agent, the defendants held out to those
who might have occasion to deal with him that he had the right to
contract- for the use of teams and carriages necessary and convenient
for doing such business, in the name of his principals, if he saw fit, in
the way such service is usually contracted for ; and we ma}-, perhaps,
take judicial notice that such service is usually contracted for, payment
to be made after the service is performed. It would seem to follow
that, as the agent had the power to bind his principals by a contract
for such service, to be paid for in the usual way, if he neglects or
refuses to pay for the same after the service is performed, the princi-
pals must pay. The fault of the agent in not paying out of the money
of his principals in his hands cannot deprive the party furnishing the
service of the right to enforce the contract against them, he being
ignorant of the restricted authority of the agent. If the party fur-
nishing the service knew that the agent had been furnished by his
principal with the money to pay for the service, and had been for-
bidden to pledge the credit of his principals for such service, he would
be in a different position. Under such circumstances, if he furnished
the service to the agent, he would be held to have furnished it upon the
sole credit of the agent, and he would be compelled to look to the
agent alone for his pay. We think the rule above stated as governing
the case is fully sustained by the fundamental principles of law which
govern and limit the powers of agents to bind their principals when
dealing with third persons. Judge Story, in his work on Agency,
§ 127, says: " The principal is bound by all acts of his agent within
the scope of the authority which he holds him out to the world to
possess, although lie may have given him more limited private instruc-
tions unknown to the persons dealing with him." In § 133 he says:
"So far as an agent, whether he is a general or special agent, is in
any case held out to the pulilic at large, or to third persons dealing
with him, as competent to contract for and bind the principal, the lat-
ter will be bound by the acts of the agent, notwithstanding he may
have deviated from his secret instructions." And again, in § 73,
in speaking of the power of an agent acting under a written authority,
he says: "In each case the agent is apparently clothed with full

348 BENTLEY V. DOGGETT. [CHAP. II.

authority to use all such usual and appropriate means, unless upon the
face of the instrument a more restricted authority' is given, or must be
inferred to exist. In each case, therefore, as to third persons inno-
centl}' dealing with his agent, the principal ought equally to be bound
by acts of the agent executing such authority' by any of those means,
although he maj' have given to the agent separate private and secret
instructions of a more limited nature, or the agent may be secretly
acting in violation of his dut}'.'' In the case of Pickering v. Busk,
15 East, 38-43, Lord P^llenborough, speaking of the power of an
agent to bind his principal, says: " It is clear that he ma}- bind his
principal within the limits of the authority with which he has been
apparent!}' clothed by the principal in respect to the subject-matter ;
and there would be no safety in mercantile transactions if he could
not." These general principles have been illustrated and applied by
this and other courts in the following cases : Young v. Wright, 4 Wis,
144; Whitney v. State Bank, 7 Wis. 620; Long v. Fuller, 21 Wis.
121 ; Houghton v. Bank, 26 Wis. 663 ; Kasson v. Noltner, 43 Wis. 646 ;
Smith V. Tracy, 36 N. Y. 79 ; Andrews v. Kneeland, 6 Cow. 354.

In this view of the case it was immaterial w4mt the orders of the
principal were to the agent, or that he furnished him mone}' to pay
these charges, so long as the person furnishing the service was in igno-
rance of such facts. In order to relieve himself from liability, the
principal was bound to show that the plaintiff had knowledge of
the restrictions placed upon his agent, or that the custom to limit the
powers of agents of this kind was so universal that the plaintiff must
be presumed to have knowledge of such custom. Under the decisions
of this court, the custom offered to be proved was not sufficiently uni-
versal to charge the plaintiff with notice thereof. See Scott v. Whit-
ney, 41 Wis. 504, and the cases cited in the decision, and Hinton v.
Coleman, 45 Wis. 165. And there being no proof of actual notice to
the plaintiff, the onl}' issue left in the case, which was not clearl}' dis-
posed of in favor of the plaintiff b}' the evidence, was submitted to the
jur}', viz. : whether the credit was, in fact, given b\- the plaintiff to the
agent or to the firm. The inry found against the defendants upon this
issue. From reading the evidence in the record, I should have been
better pleased with a different verdict upon this issue ; but as there is
some evidence to support the verdict, and as this court has held sub-
stantiall}^ in Champion v. Doty, 31 Wis. 190, that charging the service
in the plaintiff's books to the agent is not conclusive that the credit
was given to him, but might be explained, it was the province of the
jury to say whether the explanation given by the plaintiff was reason-
able and satisfactory. We cannot, therefore, set aside the verdict as
against the evidence.

By the Court. The judgment of the Circuit Court is affirmed.*

1 See Huntley i-. Mathias, 90 N. Car. 101 (1884). — Ed.

SECT, III,] CAMDEN SAFE DEPOSIT AND TRUST CO, V. ABBOTT. 349

CAMDEN SAFE DEPOSIT AND TRUST CO. v. ABBOTT.

Supreme Court of New Jersey. 1882.
[44 .V. J. L. 257.]

On rule to show cause.

Argued at February term, 1882, before Justices Dixon, Reed, and
Magie.

Chas. T. Meed, for the rule,

Samuel H. Grey, contra.

The opinion of the court was delivered by

Dixox, J, This suit was brought upon a promissory note drawn to
the order of J. R. Abbott, signed witli the defendant's name by Jesse R.
Abbott, who acted under a power of attorney of the following tenor : —

" Sir : Tliis is to certify that J. R. Abbott ... is tliis day appointed
with power of attorney, and authorized by me to sign my name to any
paper or papers, notes, «fec.

" T, Abbott.

" Dated Sept. 18th, 1878,

" Witness present, William J. Westcott."

On the trial a question was raised whether the words " notes, &c."
were not added fraudulently after the defendant had executed the in-
strument, but the jury found against this proposition. Such an inquiry
seems scarcely important, for the language of the power, without those
words, is so general that it is hardly possible to interpret them in such
manner as to exclude an authority to sign notes on proper occasions.

But in whichever form the instrument was delivered, it did not justify
the signing of notes for purposes outside of tlie principal's business.
Gulick V. Grover, 4 Vroom, 463 ; Stainer v. Tysen, 3 Hill, 279,

The note in suit was given for such a purpose, it having been put forth
for the personal benefit of the attorney, who converted its proceeds to
his own use. It was therefore issued under an apparent authority, but
in fraud of the principal. The holders of such notes can recover of the
principal only on showing that they took them for value, before matu-
rit}-, and bona fide. North River Bank v. Ay mar, 3 Hill, 262 ; Duncan
V. Gilbert. 5 Dutcher, 521 ; Hamilton v. Vou;j:ht, 5 Yroora, 187; Bird
V. Daggett, 97 Mass. 494.

The onl}' evidence touching this matter, in the record before us, is
that the attorney received the amount of the note, but when, from
whom, and under what circumstances, do not a])pear.

The verdict for the plaintiff must therefore be set aside, and a new
trial granted.

S50 QUINLAN V. PROVIDENCE WASHINGTON INS. CO. [CHAP. IL

QUINLAN, Appellant v. PROVIDENCE WASHINGTON
INSURANCE COMPANY, Respondent.

Court of Appeals of New York. 1892.

[133 iV. i'. 356.]

Appkal from judgment of the General Term of the Supreme Court
in the fourth judicial department, entered upon an order made July 7,
1891, wliich affirmed a judgment in favor of defendant entered upon
an order nonsuiting plaintiff on trial at Circuit.

This action was upon a policy of fire insurance on a dwelling-house
at Cape Vincent, Jefferson County.

The policy was issued b}- one Kelsey, an agent of the defendant,
having power to countersign and issue policies furnished in blank by
the comi)any, within the territorj' covered b}' his agency. It was a
standard polic}' in the form, and containing the printed conditions pre-
scribed by the Act of 1886. It is dated July 12, 1887, and insured for
three j-ears a dwelling-house of the plaintiff in the sura of $500. The
plaintiff had insurance on other property in different companies, and
by an arrangement between him and the agent of the defendant, his
policies were left in charge of the latter, who was to attend to the
plaintiffs interests in case of any loss by fire. The defendant's policj'
contained, among otlier conditions embraced in the standard polic}', a
condition that it should be void, unless provided by agreement indorsed
on or added to the policy, "if, with knowledge of the insured, fore-
closure proceedings be commenced, or notice of sale of an}' property
covered by the policy b}' virtue of any mortgage or trust deed." Also
a provision that in case of fire the " insured shall give immediate notice
of any loss thereb}', in writing, to the compan}', . . . and witliin
sixty days after tlie fire, unless such time is extended in writing by
this companj-, sliall render a statement to this compan}' in writing,
signed and sworn to by the insured," containing certain particulars
enumerated.

By the concluding clause in the polic}' it was provided that " no
oflScer, agent, or other representative of the company shall have any
power to waive any provision or condition of this policy, except such
as by the terms of this policy' ma}' be the subject of agreement, indorsed
hereon and added hereto, and as to such provisions or conditions, no
oflScer, agent, or representative shall have such power, or be deemed or
held to have waived such provisions or conditions, unless such waiver,
if any, shall be written upon or attached hereto, nor shall any privilege
or permission affecting the insurance under this policy exist or be
claimed by the insured unless so written or attached."

The part of this clause relating to added conditions or provisions is
not material here, as none were added to the policy in question. After

SECT. III.] QUINLAN V. PROVIDENCE WASHINGTON INS. CO. 351

the policy was issued, and before the fire, the phiiiitiff mortgaged the
premises on which the property insured was situated, in connection
with other premises, for $3,500. A foreclosure of the mortgage was
commenced by process served on the plaintiff Ma}' 27, 1889, twenty
days before the fire which destroyed the insured premises, which was
on June 16, 1889. The company had no notice of thi^s foreclosure.
The policy of insurance was, at the request of plaintiff, delivered by
Kelsey the agent, who issued it, to the mortgagee upon the execution
of the mortgage, and there was indorsed thereon a clause making the
loss, if any, payable to him.

In February thereafter (1889) the policy, then in possession of the
mortgagee, was burned in the burning of a building in which it was
deposited, and no duplicate policy was applied for or issued. In
August, 1888, about ten months before the fire, Kelsey ceased to act
as agent for the defendant, and one Block was appointed agent in his
place, who, before the fire, issued to the plaintifl^ a policy in the defend-
ant's company on other property, and Block kept the policj" with others
issued to the plaintiff in his possession, apparently* under an arrange-
ment similar to that previously- had with Kelsey.

The plaintiff never served an}' notice of loss on the company.
Kelsey, the former agent of the defendant, on July 19, 1889, thirt}'-
three days after the fire, addressed a letter to the compan}*, saying
that he had just discovered, in looking over his account with the plain-
tiff, that the defendant had a risk on the propert}-, and adding, "Not
knowing anything further, whether reported by 3'our agent, or whether
adjusted and paid, I take the trouble to make this report, feeling then
as if I had done my duty." The company' replied that the matter had
already' " had our attention." The letter of Kelse}' was not written
in behalf of the plaintiff, or with his knowledge at the time, but he
testified that Kelse\- informed him about a month after the fire that he
had written the company, and that the}- informed him they were pay-
ing attention to the matter. '• He said he thought it would be all
right ; that he could collect it." No proofs of loss were served on the
company until January 8, 1890. about seven months after the fire.
The company refused to accept the proofs and returned them. The
witness Kelsey testified that, in case of loss, he would notify the com-
pany, and it would send an adjuster who would prepare proof of loss
and settle the claim. But it appeared that only one loss had occurred
during his agency for the defendant, and that it involved a few dollars
only and was adjusted by a special agent. The plaintiff testified that
he did not read the policy, and was ignorant of its conditions.

The trial judge refused to permit proof that Kelsey knew of the
commencement of the foreclosure proceedings, and assured the plain-
tiff at the time that no harm could come to him therefrom. The court,
at the close of the whole case, directed a nonsuit.

i>. G. Griffin, for appellant.

A. H. Sawyer, for respondent.

352 QUINLAN V. PROVIDENCE WASHINGTON INS. GO. [CHAP. II.

Andrews, J. If the rights of the parties depend upon the contract
of insurance as expressed in the policy, there can be no hesitation in
affirming the judgment of nonsuit.

The provision as to the commencement of foreclosure proceedings ;
the requirement that the insured, in case of loss, shall give immediate
notice in writing to the company, and the other requirement that
within sixt}' days after a fire he shall render to the company a sworn
statement of the particulars specified, are conditions precedent to a
right to recover on the policy, and each of the three conditions
mentioned was violated. Foreclosure proceedings were commenced to
the knowledge of the insured before the fire ; no notice of loss was
served at anj- time by him, and the letter of Kelse}' to the company
written thirty-three days after the fire, even if it could be treated as
having been written in behalf of the insured, was not immediate notice ;
and finally- the proofs of loss were not served until months after the
sixty days' limitation in the policy had expired. The authorities are
conclusive that the non-performance of these conditions, or any one of
them, constituted a complete defence to a claim to recover on the
polic}' as printed. Inman v. Western F. Ins. Co., 12 Wend. 460;
Blossom V. Lycoming F. Ins. Co., 64 N- Y. 162; Titus w. Glens Falls
Ins. Co., 81 id. 411.

The plaintiff was driven to the claim that the company had waived
the right to insist upon the conditions of the contract as contained in
the polic}', or had consented to be bound, notwithstanding the violation
of the conditions. He relied, to establish this contention, upon certain
transactions between himself and Kelsey, the agent who acted for the
compan}' in making the contract of insurance and issuing the polic}',
fully recited in the statement of facts. It is to be assumed that Kelsey
learned of the commencement of the foreclosure proceedings, and
thereupon assured the plaintiff that his rights under the policy would
not be prejudiced thereb3- ; also that he knew of the fire when it
occurred, and after writing the compan}' the letter of July 19, 1889,
informed the plaintiff that he had done so, and that he need take no
further steps towards giving notice or securing proofs of loss, and it is
to be admitted also that the plaintiff had not read the polic\-, and did
not know what conditions it contained.

It is insisted that upon the whole evidence a question was presented
for the jur3' whether the company- had waived the conditions relied
upon to defeat a recover^' or had consented to be bound notwithstand-
ing their violation. The transactions and interviews between Kelsey
and the plaintiff took place after Kelsey had ceased to act as the agent
for the defendant ; but it is claimed that the plaintiff did not know that
his agency had terminated, and we shall consider the case upon the
assumption that the company was bound b}' his acts to the same extent
as if there had been no change in his relation to the defendant. The
substance of the claim made by the plaintiff is that the agent of the
company, invested with the power to make contracts of insurance and

SECT. III.] QUINLAN V. PROVIDENCE WASHINGTON INS. CO. 353

issue and countersign policies, may subsequently change or modify
conditions therein and waive forfeitures ; in short, that in respect to
policies issued by him he stands in place of the company and may do
whatever the companj- itself might do in the premises.

Tiie powers possessed by agents of insurance companies, like those
of agents of any other corporations, or of an individual principal, are
to be interpreted in accordance with the general law of agency. No
other or different rule is to be applied to a contract of insurance, than
is applied to other contracts. The agent of an insurance company
possesses such powers and such powers onl}' as have been conferred
verbally or b}- the instrument of authorization, or such as third persons
have a right to assume that he possesses. Where the act or representa-
tion of the agent of an insurance compan}' is alleged as the act of
the principal and therefore binding upon the latter, the test of the
liability of the principal is the same as in other cases of agenc}-. No
principle is better settled in the law, nor is there any founded on more
obvious justice, than that if a person dealing with an agent knows that
he is acting under a circumscribed and limited authority, and that his
act is outside of and transcends the authorit\- conferred, the principal
is not bound, and it is immaterial whether the agent is a general or
special one, because a principal may limit the authorit}- of the one as
well as that of the other. Walsh v. Hartford Fire Tns. Co., 73 N. Y.
10.

The limitations upon the authoritv of Kelsey were written on the
face of the policy. It declared that " no officer, agent, or representa-
tive of the company should have power to waive any provision or
condition " embraced in the printed and authorized policy, but power
is given to agents to waive added provisions or conditions, provided
such waiver is written upon or attached to the policy. Where a policy
permits an agent to exercise a specified authority, but prescribes that
the compan}' shall not be bound unless the execution of the power shall
he evidenced b}- a written indorsement on the policj', the condition is
of the essence of the authorit}', and the consent or act of the agent not
so indorsed is void. Walsh v. Hartford Fire Ins. Co., supra; Marvin
V. Universal Life Ins. Co., 85 N. Y. 278. The conditions violated in
this case were contained in the authorized blank, and as to these the
agent had no power in any manner, in writing, or otherwise, to waive
them.

In determining the question of liability in this case it is immaterial
whetlier the plaintiff rend the policy or not, or that he had no actual
knowledge of the conditions or of the limitations of the power of
Kelsey. The conditions and limitations were a part of the contract and
he was bound to take notice of tliem, and is not excused upon the
plea that he omitted to acquaint liimself with the provisions of the
polic-}-, and his arrangement with Kelsey to take charge of his insurance
interests was a matter with which tlie defendant had no concern.

The act (Chap. 486, of the Laws of 188G) providing for a uniform

354 QUINLAN V. PROVIDENCE WASHINGTON INS. CO. [CHAP. II.

polic}- known as the standard policy, and which makes its use compuU
sory upon insurance companies, marks a most important and useful
advance in legislation relating to contracts of insurance. The practice
which prevailed before this enactment, whereby each company pre-
scribed the form of its contract, led to great diversity in the provisions
and conditions of insurance policies, and frequently to great abuse.
Parties taking insurance were often misled by unusual clauses or
obscure phrases concealed in a mass of verbiage and often so printed
as almost to elude discovery. Unconscionable defences based upon
such conditions were not infrequent, and courts seem sometimes to
have been embarrassed in the attempt to reconcile the claims of justice
with the law of contracts. Under the law of 1886 companies are not
permitted to insert conditions in policies at their will. The policies
thev now issue must be uniform in their provisions, arrangement, and
type. Persons seeking insurance will come to understand to a greater
extent than heretofore the contract into which they enter. Now, as
heretofore, it is competent for the parties to a contract of insurance, by
a<yreement in writing or hy parol, to modify the contract after the
policy has been issued or to waive conditions or forfeitures. The
power of agents, as expressed in the policy, may be enlarged by usage
of the company, its course of business, or by its consent express or
implied. The principle that courts lean against forfeitures is unim-
paired, and in weighing evidence tending to show a waiver of conditions
or forfeitures, the court may take into consideration the nature of the
particular condition in question, whether a condition precedent to any
liability, or one relating to the remedy merely, after a loss has been
incurred. But where the restrictions upon an agent's authority appear
in the policy, and there is no evidence tending to show that his
powers have been enlarged, there seems to be no good reason why the
authority expressed should not be regarded as the measure of his
power ; nor is there any reason wh}' courts should refuse to enforce
forfeitures plainh' incurred, which have not been expressly or im-
pliedly waived by the company.

The acts and representations of Kelsey upon which the plaintiff
relies were in excess of his authority as expressed in the policy and did
not bind the defendant, there being no evidence upon which it can be
held that the company had enlarged his powers or waived the violated
conditions.

These views lead to an affirmance of the judgment.

All concur, Peckham and Maynard, JJ., in result ; O'Brien. J.,
not sitting.

Judgment affirmed}

1 On the powers of insurance agents, see Viele v. Germania Insurance Co., 26
Iowa, 9, 57-64 (1868) ; Insurance Co. v. McGookey, 33 Ohio St. 555, 564-566 (1878) ;
Strickland v. Council Bluffs Ins. Co., 66 Iowa, 466 (1885).

On the assumption that the assured knows the terms of the policy, see Catoir v.
American Life Insurance and Trust Co., 33 N. J. L. 487 (1868) ; Morrison u. Insur

BECT. III.] BIGGS V. EVANS. 355

BIGGS V. EVANS.
Queen's Bencu Division. 1893.

[[1894] 1 Q. B. 88. J

Action tried by Wills, J., witliout a juiy.

The plaintiff sued to recover possession of a tabletop belonging to
tiie plaintiff, and vvhieb had been entrusted b}' him to a person named
Geddes, and sold by Geddes to the defendant, under circumstances
which are fully stated in the judgment.

Arthur Powell, for the plaintiff.

Hamtnond Chambers, for the defendant.

Cur. adv. vult.

Wills, J., delivered judgment as follows : —

The plaintiff was the owner of a valuable tabletop made of what is
called opal matrix, an exceptional article, but of a class in which
jewellers and dealers in gems might be expected to deal.

In the year 188G he sent it to the business premises of a person
named Geddes who was a dealer in jewels and gems ; and who also,
as a part of his business, and as a known part of his business, sold
such things for other people in his own name, and having them in his
possession. The following letter gives the terms of the deposit:
" April 30, 1880. I will entrust you with the sale of my opal table
upon the following conditions. That the table shall not be sold to
any person nor at any price without my authorization is first obtained
that such sale shall be eft'ectcd. That the cheque handed to you in
payment for the table shall be paid over to me intact for me to pay
into my bankers, and that I shall pay for commission on the sale of
the table one-third of the balance which remains after deducting cost
of stone mounting and all expenses incurred by me in connection with
the same."

Geddes in the year 1888 sold the table out and out to the defendant
for £200, which was satisfied as follows : Geddes asked the defendant
to pav £170 for him to Streeter. a West End jeweller, in satisfaction
of a judgment which Streeter had obtained against him, and to pay
him (Geddes) £30 in cash. The defendant did not pay Streeter £170,
but gave him a diamond valued between him and Streeter at £120,
and paid him £50 in cash.

ance Co., 69 Tex. 353 (1887) ; Cleaver '•. Traders' Ins. Co., 65 Mich. 527 (1887) ; s. c.
71 id. 414 (1888) ; Crouse v. Hartford Fire Ins. Co., 79 Wis. 249 (1890).

In some jurisdictions a provision that no officer or agent shall waive orally the
requirements of an insurance policy has been held to be too broad. Westchester Fire
Ins. Co. V. Earle, 33 Mich. 143, 153 (1876); Lamberton v. Connecticut Fire Ins. Co.,
39 Minn. 129 (1888) ; Renier v. Dwelling House Ins. Co., 74 Wis. 89, 98-99 (1889).
In other jurisdictions the provisioa has been enforced. Kimball r. Howard Fire Ins.
Co., 8 Gray. 33 (1856) ; Walsh v. Hartford Fire Ins. Co , 73 X. Y. 5 (1878) ; Gladding v.
California Farmers' Mutual Fire Ins. Assn., 66 Cal. 6 (1884) ; Smith v. Niagara Ins
Co., 60 Vt. 682 (1888). — Ed.

356 BIGGS V. EVANS. [CHAP. II.

Geddes shortly afterwards became bankrupt and disappeared. The
tabletop at the time of action brought was in the possession of
Streeter, who was holding it for the defendant. The plaintiff claims
to recover the tabletop from the defendant. The defendant resists
the claim on two grounds. First, he says that at common law the
plaintiff is estopped from denying his title. Secondly, that he is pro-
tected by the Factors Acts, from which of course the Act of 1889 must
be excluded, as the transaction took place before it was passed. The
claim of the defendant at common law is put thus. It is said that the
plaintiff enabled Geddes to sell the tabletop as his own, and that his
doing so was within the scope of his authority as it would be under-
stood by persons who dealt with him, and that, as he had put it in
the power of Geddes to commit the fraud, his must be the loss.

I think, however, tliat a fallacy underlies the expression that he
enabled Geddes to commit the fraud. In one sense, and one only, did
he do so. He gave him the corporal possession of the tabletop, and
it was that possession which enabled Geddes to sell it as his own, or
bj^ way of a transaction within the scope of his apparent authority, as
a person carrying on a business in which such sales are habituall}'
effected. But it is quite clear that it requires more to found the argu-
ment in question. In one sense every person who entrusts an article
to any person who deals in second-hand articles of that description
enables him, if so disposed, to commit a fraud l)y selling it as his own.
A man who lends a book to a second-hand bookseller puts it into his
power, in the same sense, to sell it as his own. A man who entrusts
goods for safe custody to a wharfinger, who also deals in his own
goods, or in other people's goods entrusted to him for sale, in such a
sense enables him to commit a fraud by selling them to a customer.
But such a transaction clearly could not give a title to a purchaser as
against the owner. The true test is, I take it, whether the authority
given in fact is of such a nature as to cover a right to deal witli the
article at all. If it does, and the dealing effected is of the same nature
as the dealing contemplated bv the authorit}', and the agent carries on
a business in which he ordinarily effects for other people such disposi-
tions as he does effect, what he has done is within the general authority
conferred, and any limitations imposed as to the terms on which, or
manner in which, he is to sell are matters which may give a right of
action by the principal, but cannot affect the person who contracts
•with the agent. It is within the scope of the authority that the agent
should sell the goods on some terms, and it is not usual in the trade
to inquire into the limits or conditions of an authority of that kind ;
and therefore the principal is supposed, as respects other people, to
have clothed the agent with the usual authority. The foundation,
however, of the whole thing is that the agent should be authorized to
enter into some such transaction. If the principal has entrusted the
goods to the agent for some other purpose, the agent is acting outside
his authority in selling at all ; and then the principal, whose goods

SKGT. III.] BIGGS V. EVANS. 357

have been disposed of without an\- autliorit}- at all so to do, is entitled
to recover tliem in spite of tlie disposition.

Now, in the present case, the letter, taken as a whole, shows that
the tabletop never was intrusted to Geddes to sell. He was forbidden
in express terms to sell without further authority. He was not to
sell the tabletop, but to keep it safely for the plaintiff until a further
authority was given ; and I think he sold, not violating instructions as
to the terms on which he should effect a sale, but in spite of a prohi-
bition to sell at all till some further authority should be given. At
common law, tlierefore, I think tlie plaintiff is entitled to succeed.

Uo the Factors Acts protect the defendant? I think not. I think it
is an essential condition of the validity of a sale protected bN' them that
the goods should have been intrusted to the agent for sale. I think the
Factors Acts would apply, so far as relates to the business which Geddes
was carrying on, the nature of the article dealt in, and what was usual in
such a trade. But the defect that the article never was intrusted to
him for sale is fatal.

I think there is another difficulty. In order to validate payment to
the agent under 6 Geo. IV. c. 94, s. 4, it must be made in the ordinary
course of business, that is, by cash or cheque or bill, as the case may
be. I do not think that buying up a judgment from some one else,
partly by delivery of a diamond of the defendant's own, can be con-
sidered as payment in the ordinary course within the section. And
there is good reason for it. If the agent gets cash, he may be able to
hand it to his principal ; but if he does not get cash, and there is only
a transaction of this kind, he cannot if impecunious pa}' the principal ;
it is out of his power to do so.

1 am of opinion, therefore, that judgment must he entered for the
plaintiff, with costs. Judgment /or the plaintiff }

1 8ee tlie Factor.s Acts, cited ante, p. 253, n. (2).

Important case.s on the Factors Acts are : Phillips v. Huth, 6 M. & W. 572 (1840) ;
Fuentes v. Montis, L. R. 4 C. P. 93 (Ex. Ch., 1868); Cole v. North- Western Bank,
L. R. 10 C. P. 354 (Ex. Ch., 1875) ; Price v. Wisconsin M. & F. Insurance Co., 43
Wis. 267 (1877); Allen v. St. Louis Bank, 120 U. S. 20 (1887); Haatings v. Pear-
eon, [1893] 1 Q. B. 62 (1892).— Ed,

358 CORNFOOT V. FOWKE. [CHAP. II.

SECTION IV.

Misrepresentation, Fraud, and kindred Topics common to Torts

and Contracts.

CORNFOOT V. FOWKE.

Exchequer. 1840.

[6 M. Sr W. 358.]

This was an action upon a written agreement, dated the r2tli of
November, 1838, made between the plaintiff and the defendant, wliereby
the defendant agreed to take a ready-furnished house of the plaintiff,
for the term of two years, at the rent of £375 per annum, l)ut which
the defendant had refused to perform.

Plea, that the plaintiff caused and procured the defendant to enter
into the said agreement, and that the defendant was induced to enter
into the said agreement, through and by means of the fraud, covin, and
misrepresentation of the plaintiff, and others in collusion with him.
Verification.

The replication traversed the plea, upon which issue was joined.

At the trial before Lord Abinger, C. B., at the Middlesex Sittings,
after last Trinity Term, the following facts appeared in evidence. The
defendant, being in search of a town residence for the purpose of edu-
cating his children, applied to Mr. F. B. Clarke, No. 116 Crawford
Street, to know if he had a ready furnished house to let in that neigh-
borhood. Mr. F. B. Clarke mentioned several houses, which on look-
ing at them, the defendant thought would not suit him. Subsequently
to this, on the 29th October, 1838, Mr. F. B. Clarke wrote to inform
him of the house in question, belonging to the plaintiff, stating that
the rent required was 400 guineas, but that he thought 350 guineas
might be taken, but certainl}' not less.

Upon the receipt of this letter, the defendant went with two of his
sons and a friend, to look at the house in question, No. 16 York
Place, Baker Street, and there saw Mr. Clarke, the father of F. B.
Clarke, who had been emplo3'ed b}' the plaintiff to let the house in
question, and to whom persons making inquiries about the house had
been referred. On seeing him the defendant said that he had seen Mr.
Clarke, of Crawford Street, about taking the house. Mr. Clarke re-
plied, that that Mr. Clarke was his son, but that he himself had the
letting of the house. The defendant then said, "Pray, sir, is there
anything objectionable about the house ? " to which Mr. Clarke replied,
" Nothing whatever ; " upon which the defendant said, " Then I do not
think I shall object to give 350 guineas for the house ; " to which Mr.
Clarke replied, that his son had made a mistake, that the rent was 450

SECT. IV.] COKNFOOT V. FOWKE. 359

guineas, and not 350. The defendant thereupon declined to give that
rent, and left the house. Afterwards, however, in consequence of some
further negotiation, the rent was reduced to £375, and the defendant
agreed to take the house on those terms, and the agreement, for the
breach of which the action was brought, was drawn up by Mr. Clarke,
and signed by the defendant and afterwards by the plaintiff. On the
13th of November, the day after signing the agreement, the defendant
discovered that the adjoining house to the plaintiff's (which was a
corner house), situate in Davies Street, was a brothel of the worst
description, of which there was ample evidence given at the tiial, and
in consequence of it persons in the immediate neigiiborliood of it could
not let their lodgings, and were obliged to leave their houses. It was
also proved that the plaintiff was fulh' aware of it, and had consulted
some of the neighl)ors as to the best mode of putting down the nui-.
sance. The defendant, on the 14th November, through his attorneys,
Messrs. Egan & Waterman, gave notice of his determination not to
take possession of the house, because, to his great astonishment, he
had discovered that the next house to it was a house of ill fame. The
defendant's family, it appeared, consisted of two sons and two daugh-
ters, the eldest daughter being sixteen or seventeen years of age.

At the trial, the defendant began, and having proved the above
facts, Thesiyer, for the i)lnintiff, objected that the question put to Mr.
Clarke, the agent, by the defendant, whether there was any olyection
about the house, must be considered as applying to objections vithln
the house, or to the house itself, but not to olijections arising from
something outside and apart from the house ; which, he contended, the
agent who Avas merely autliorized to let the house, had no authority
from his principal to answer. The learned judge overruled the objec-
tion, but left it to the jury to say whether the nuisance was such as
formed a solid objection to tlie house ; if so, and if they thought that
when the defendant used the expression '' about the house," Mr. Clarke
could not have understood him in any other sense than that of an
objection to the house, they ought to find their verdict for the de-
fendant: and he stated his opinion to be, that although an agent could
not bind his principal beyond the scope of his authority, it did not fol-
low that the principal could enforce a contract procured by the false
representation of his agent, and that the representation made by the
agent must have the same effect as if made by the plaintiff himself.
The jury answered both questions in favor of the defendant, and gave
their verdict accordingly.

Thesiffer, in Easter Term last, obtained a rule to show cause why
there should not be a new trial on the ground of misdirection.

Kelly, Channell, and WiUcock, in Michaelmas Term, showed cause.

Thesiger and W. H. Watson, contra. Cur. adv. vidt.

The judges, differing in opinion, now delivered their judgments
seriatim.

360 CORNFOOT V. FOWKE. [CHAP, II.

RoLFE, B.^ The jury found for the defendant, and the counsel for
the plaintiff afterwards obtained this rule nisi to set aside the verdict,
and for a new trial, on the ground tliat Clarke was not proved to have
had authority' to make such a statement, or to have known of the nui-
sance in question, though the plaintitf himself must have been aware of
its existence. The point for our decision is, whether it was properly
left to the jur}-, in the absence of proof of express authority, to treat
the defendant as not being liable in this action, on the ground that the
representation of Clarke was a representation b}' an agent made in the
ordinaiy course of business, and therefore binding on the principal.
It was not shown at the trial what was the precise extent of the au^
thority given to Clarke, but I will assume that he had all the authority
usually confided to house agents, and in the absence of express proof
he cannot be assumed to have had more. If an agent so authorized sliould
enter into an agreement to let the house of his principal, making it part
of the contract that the house was free from any particular nuisance,
as, for instance, the immediate neighborhood of a brothel, it is obvious
the principal could only enforce the contract, or recover damages for
the breach of it, by showing that he was able and willing to do M^iat
his agent had contracted to do, that is, to let to the intended tenant
the house free from the particular nuisance. No question as to the
extent of the agent's authority could in such a case arise. The land-
lord insisting on his agent's contract, must take it in solido, with
all its qualifications and provisions. If, instead of an action at the
suit of the landlord, the intended tenant should sue the intended land-
lord for the breach of such a contract, on the ground that the agent
had agreed to let a house free from the nuisance of a brothel, then the
question argued in this case, as to the authority of a house-agent to
make such a contract binding on his principal, would arise. But the
present is not a question as to the power of an agent to bind his prin-
cipal b}' contract, but as to his power to affect him by a representation
collateral to the contract. Now, in order to do this, it is essential,
according to what was laid down by Gibbs, C. J., in Pickering v.
Dowson, 4 Taunt. 786, to bring home fraud to the principal; and that
was certainly not done in tliis case, where all the facts are consistent
with the hypothesis that the plaintiff innocently gave no directions
whatever on the subject, supposing that the intended tenant would
make the necessary inquiries for himself, or even with the stronger
supposition that he expressly desired Clarke not to make any represen-
tation at all on the subject. If the plaintiff, knowing of the nuisance,
expressly authorized Clarke to state that it did not exist, or to make
anj' statement of similar import ; or if he purposely employed an agent,
ignorant of the truth, in order that such agent might innocentl}' make
a false statement believing it to be true, and might so deceive the party
with whom he was dealing, in either of these cases he would be guilty

^ After stating the case. — Ed.

SECT. IV.] CORNFOOT V. FOWKE. 361

of a fraud, and the truth of the plea would then, T think, have been
established. But on the general ground of the authority of an agent to
bind his principal in matters within the scope of his authority, on
which the case was left to the jury, I think that, as no express authority
was proved to have been given b}^ the plaintiff, authorizing Clarke to
make the representation in question, the fraud stated by the plea is not
made out, and consequently the rule for a new trial ought to be made
absolute.

Aldkkson, B. In this case the parties have entered into an agree-
ment which is in writing, and to the terms of which nothing can be
added, and from them nothing subtracted.

The agent makes a representation at the time of the negotiation,
which is contrar}- to the fact. If that were a fraudulent representa-
tion, and in consequence of that representation the bargain was made,
the defendant will not be liable, by reason of the fraud, and this is the
point raised b\' these pleadings.

But here the representation, though false, was believed by the agent
to be true. He therefore, if the case stopped here, has been guilty of
no fraud.

The jury have, however, found that the true facts were known to the
principal, though not communicated by him to the agent ; and it is said
this knowledge, on the part of the principal, is sufficient to establish
the fraud.

If, indeed, the principal had instructed his agent to make the false
statement, this would be so, although the agent would be innocent of
any deceit. But this fact also fails. It may perhaps be admitted, that
such a statement, if made part of the original written contract, would
be within the scope of the general agency here shown to exist. But
the contract is in writing, and this is no part of it. And I think it
impossible to sustain a charge of fraud, when neither principal nor
agent has committed an}*, — the principal, because, though he knew the
fact, he was not cognizant of the misrepresentation being made, nor
ever directed the agent to make it ; and the agent, because though he
made a misrepresentation, \et he did not know it to be one at the time
he made it, l)ut gave his answer bona fide.

It is said that this will open a door to fraud, by enabling parties in
the situation of this principal, themselves conscious of objections to
their premises, to appoint agents, who unconscioush' may make mis-
representations to the injur}- of third persons. This does not follow.
If the fact could be shown, it would be a fraud on the part of the prin-
cipal with such a motive to appoint such an agent ; and the third party
is not (except from his own imprudence) in any real danger, for he may
always protect himself by making the representation a part of the con-
tract, in which case its falsehood, whether fraudulent or not, will be a
good defence to him. For these reasons, I think there should be a new
trial.

362 CORNFOOT V. FOWKE. [CHAP. II.

Parke, B. In this case I concur in opinion with my learned
Brothers who have preceded me, that there should be a new trial.

It is an action on an agreement by the defendant, to take the plain-
tiff's house, ready furnished, for a term. The defendant pleads, that the
agreement was void, on the ground of fraud, covin, and misrepresenta-
tion of the plaintiff, and others in collusion with him. That plea the
defendant is to prove.

The alleged fraud consists in an untrue representation made by a
house-agent, employed b}' the plaintiff, in answer to a question by the
defendant. The question was, whether there was any objection to the
house ; the answer, that there was none ; and it appeared that the next
door was a brothel, and that the plaintiff knew it before, but the agent
did not. My Lord Chief Baron thought the plaintiff was bound by the
agent's representation, and left the question to the jurj-, whether that
representation was intended to relate to intrinsic objections only, or
applied to extrinsic objections also. The jury found that it was meant
and understood to refer to both, and to the mode in which that ques-
tion was left to the jury, or their finding upon it, no objection is made.

But it is said, and I think justly said, that it is not enough to sup-
port the plea, that the representation is untrue ; it must be proved to
have been fraudulentl}- made. As this representation is not embodied
in the contract itself, the contract cannot be affected, unless it be a
fraudulent representation, and that is the principle on which the plea
is founded.

Now the simple facts, that the plaintiff knew of the existence of the
nuisance, and that the agent, who did not know of it, represented that
it did not exist, are not enough to constitute fraud : each person is
innocent, because the plaintiff makes no false representation, and the
agent, though he makes one, does not know it to be false ; and it seems
to me to be an untenable proposition, that if each be innocent, the act
of cither or both can be a fraud. No case could be found in which such
a principle is laid down, as was admitted in the course of the argu-
ment. It must be conceded, that if one employ an agent to make a
contract, and that agent, though the princi[)al be perfectly guiltless,
knowingly commit a fraud in making it, not only is the contract void,
but the principal is liable to an action. Lord Holt held, that in an
action of deceit, for selling one sort of silk for another, upon evidence
that there was no actual deceit in the defendant, but that it was in his
factor beyond sea, the merchant was liable. Hern v. Nichols, 1 Salk.
289. But, in the present case, the agent acted without an}- fraudu-
lent intent ; and therefore his act alone neither renders the plaintiff
liable to an action nor vitiates the contract. It must also be admitted
that if the plaintiff not merely knew of the nuisance, but purposely
employed an ignorant agent, suspecting that a question would be
asked from him, and at the same time believing or suspecting that it
would, b}' reason of such ignorance, be answered in the negative, the
plaintiff would unquestionably be guilty of a fraud, and the contract

SECT. IV.] CORNFOOT V. FOWKE. 363

would be avoided ; for then the representation of the agent, which he
intended to be made, would be the same as bis own ; and his own
representation, coupled with his knowledge of its falsehood, would
doubtless be a fraud. But whether the facts in the case would warrant
an inference that such a fraud was committed, it is unnecessary to
inquire, as, if they would, this question should have been submitted to
the jury.

My opinion, therefore, is, that the case has not been properly dis-
posed of, and there ought to be a new trial.

Much discussion took place on the argument of the rule, as to the
extent of the autliorit}' delegated to the agent, — whether it was to
make representations as to the intrinsic qualities of the house, or to
extrinsic circumstances. The view of the case which I have taken
makes it unnecessary to enter into that question in order to dispose of
this lule ; and upon m}- lord's report, I am unable to collect exact!}'
what the authority of the house-agent was. It certainly was not to
make any contract, for that was clearl}' to be executed by both princi-
pals : and whether he had authorit}' to make any representations as to
the state and condition of the propert}', does not appear to be clear ;
and I abstain from entering into that question at all, inasmuch as m}'
opinion proceeds on this, that such representations, whether within the
scope of his authority or not, do not affect a regular contract, unless
they be fraudulent representations.

Lord Abinger, C. B.^ I have bestowed some consideration on this
subject since, and am sorry to find myself obliged to differ' from my
Brethren on a matter that appears to me, but for their opinion, too
plain to admit of a doubt. In the first place, it is not correct to sup-
pose that the legal definition of fraud and covin necessaril}' includes
an}- degree of moral turpitude. Every action for the breach of a
promise, for deceit, for not complying with a warrant}', or for a false
representation, is founded upon a legal fraud, which is charged as such
in the declaration, although there be no moral guilt in the defendant.
The warranty of a fact which does not exist, or the representation of a
material fact contrary to the truth, are both said, in the language of
the law, to be fraudulent, although the party making them suppose
them to be correct. This point, if it could be doubted, is fully estab-
lished by the case of Williamson v. Allison, 2 East, 446. That was a
declaration in tort for breach of a warranty, that twenty -four dozen
bottles of claret were in a fit and proper state to be exported to India,
whereas they were at the time — and the defendant well knew they
were — in a very unfit and improper state. At the trial no evidence
was given of the defendant's knowledge, and the verdict being for the
plaintiff, a motion was made afterwards for a new trial, on the ground
that the scienter, having been alleged, ought to have been proved.

1 The Chief Baron's opinion has been abbreviated by omitting his statement of the
case, and his discussion of the authorities as to notice and of Schneider v. Heath,
3 Camp. 506. —Ed.

364 COKNFOOT V. FOWKE. [CHAP. IL

But the Court, after full discussion, and a reference to cases cited in
the argument, were unanimously of opinion that the allegation of the
scienter was wholly unnecessary and immaterial, and therefore need
not be proved. Now if the action had been for a false representation
made by the seller of a material fact, by reason of which the i)laintiff
was induced to bu}^, although the seller might have supposed the fact
to be true, the same reasoning or the same rule would apply ; the
difference between a warranty and a representation is nothing more
than this, that where there is a written contract the warranty forms a
part of the contract, but the representation is collateral to the con-
tract, and may be made verbally, though the contract may be in writ-
ing : but if it be of a fact without which the other party would not have
entered into the contract at all, or at least on the same terms, it is
equally effectual, if untrue, to avoid the contract or to give an action
for damages on the ground of fraud. This is often illustrated by
actions, which have been very common of late, by the purchasers of
public-houses, who have been induced to buy or to give a greater price
for the goodwill of the house, by a representation of the extent of its
business ; and if that representation turns out to be false, even though
the party making it supposed it to be true, and whether that p:irty
were the principal or the agent, it has never been doubted that the
contract is void and that the buyer maj' recover back his mone}'
in an action for money had and received to his use. In the case of
Hodson V. Williamson, 1 W. Black. 463, Mr. Justice Yates lays it
down as a general proposition, that " the concealment of material cir-
cumstances vitiates all contracts, upon the principles of natural law."
If this be true, can it be doubted that the false representation of a
material circumstance also vitiates a contract? These principles are
familiar to ever}' person conversant with the law of insurance. But a
polic}' of insurance is a contract, and is to be governed by the same
principles as govern other contracts. When it is said to be a contract
uberrimcefidei, this onl}' means that the good faith, which is the basis
of all contracts, is more especialh' required in that species of contract
in which one of the parties is necessarily less acquainted with the
details of the subject of the contract than the other. Now nothing is
more certain than that the concealment or misrepresentation, whether
by principal or agent, bj^ design or by mistake, of a material fact,
however innocently made, avoids the contract on the ground of a legal
fraud. But though I consider this case as coming full}' within the
meaning of a legal fraud, even if the agent is presumed to be ignorant
of the falsehood of his misrepresentation, I am very far from conceding
that it is a case void of all moral turpitude.

The verdict of the jury entitles me to consider the question put b}'
the defendant exactly the same as if it had been put in this form : " Is
there no brothel, or smith's forge, or farrier's shop, or other nuisance
80 near the house as to make it objectionable? " to which the agent
replies, " I assure j'ou there is none."

SECT. IV,] COKNFOOT V. FOWKE. 365

In the case of Pawson v. Watsou, Cowp. 785, Lord Mansfield lays it
down, generally, that in a representation to induce a party to make a
contract, it is equally false for a man to affirm that of which he knows
nothing, as it is to aflirm that to be true which lie knows to be false.
This maxim is neither negatived nor qualified by the doctrine laid down
in that class of cases derived from Pasley v. t'reeman. The plaintiffs in
those cases sought to charge a party with damages for stating that
which he believed to be true, though he did not know it to be so, in
answer to inquiries made by the plaintiff respecting the credit of a
third person. There the d(;fendant had no end to gain, no interest in
the event, no motive to deceive ; he was not one of the dramatis jjer-
sonce in the construction of any contract. It does not follow from the
principle established in these cases, that if in any one of them the defend-
ant had been the agent employed by the purchaser of the goods to bu}-
them for him, and even witliout the authority of his principal, had
made false representations of his circumstances, to induce the seller to
make a contract to sell his goods on credit, the seller would have been
bound to deliver them.

Mr. Clarke, the agent, at least for letting the house, has in this case
induced the defendant to enter into a contract by a false representation
by no means free from moral turpitude, even upon the presumption
that he was wholh' ignorant of the matter. That the truth was known
to the plaintiff is admitted ; that he had an interest to conceal it, can-
not be denied ; nor can it be denied that it was concealed from the
defendant. Whether his concealment was consistent with good faith
and free from moral turpitude, ma}' be determined b}' a reference to the
case put b}' Cicero in the third book of his Treatise De Officiis, which I
the rather mention, because the house, the sale of which he puts hj-po-
thetically, h\ way of example, was liable to an objection that bears
some analog}- to the present : —

" Vendat aedes vir bonus propter aliqua vitia, quae ipse norit, cseteri
ignorent : pestilentes sint, et habeantur salubres ; ignoretur in omnibus
cubiculis apparere serpentes ; male materiatse, ruinosae : sed hoc praeter
dominum nemo sciat : quaero, si hoc emptoribus venditor non dixerit,
aedesque vendiderit pluris multo, quam se venditurum putarit, num id
injuste an improbe fecerit?" He then gives the arguments on both
sides, and concludes that the vendor ought not to have concealed these
defects in the house from the buyer. '•• Neque enim id est celare, quid-
quid reticeas : sed cum, quod tu scias, id ignorare emolumenti tui causa
velis eos, quorum intersit id scire." Then this illustrious moralist
gives his own opinion of the moral turpitude of such a concealment,
for he says, " Hoc autem celandi genus quale sit, et cujus hominis,
quis non videt? certe non aperti, non simplicis, non ingenui, non justi,
non boni viri ; versuti potius, obscuri, astuti, fallacis, malitiosi, callidi,
veteratoris, vafri." Now, the present is a case in which the fraudulent
concealment of a material fact by the principal, and the false represen-
tation of the agent, combine to constitute a suflScient degree of fraud,

366 CORNFOOT V. FOWKE, [CHAP. II.

even morall}" speaking, to sustain the defendant's plea, that he was
induced b}' fraud, covin, and false representation to sign the contract.
If, instead of a brothel next door to the house, some person had died
of the plague in one of the chambers the week before it was let, the
case would be exactly similar to that put by Cicero of the cedes jyesti-
lentes. According to the concession of Mr. Thesiger, that objection
arising within the house, the contract, under the circumstances of this
case, would be void. But according to the argument of my learned
brethren, this intrinsic objection would have made no difference ; the
agent not being acquainted with the fact, and the principal being no
part}' to the representation. But it appears to me that nothing can be
more plain than that the principal, though not bound by the represen-
tation of his agent, cannot take advantage of a contract made under
the false representation of an agent, whether that agent was authorized
by him or not to make such representation.

Put the ordinary ease of a servant employed to sell a horse, but
expressly forbid to warrant him sound. Is it contended that the buyer,
induced by the warranty to give ten times the price which he would
have given for an unsound horse, when he discovers the horse to be
unsound, is not entitled to rescind the contract? This would be to say,
that though the principal is not bound by the false representation of an
agent, yet he is entitled to take advantage of that false representation,
for the purpose of obtaining a contract beneficial to himself, which he
could not have obtained without it. I own that it never had occurred
to me to doubt, upon principle or upon the authorit}' of decided cases,
that the knowledge of the principal was the knowledge of the agent,
and the knowledge of the agent the knowledge of the principal. . . .

Where tlie owner of a house or of a farm employs an agent to nego-
tiate and settle the terms of a contract for letting the one or the other,
more especially when he has referred to that agent for particulars, can
it be doubted that the party treating with that agent is entitled to con-
sider him as the proper source of all information that it mav be ma-
terial to him to possess with a view to making his contract? Or that
for the purpose of such contract, any representation, material to the
subject of inquiry', must be considered as if made by the principal?
Put the case, that Mr. Clarke the agent had been full}* apprised of this
objection to the house, but that in the raultiplicit}' of his engagements
he had sent a clerk to represent him, and that the clerk, in ignorance,
had made the representation in question : would the argument have
been urged in that case, that there was no fraud in the clerk because
he was ignorant, and none in the master because he did not make the
representation? But what other relation exists between master and
servant, as far as third persons are concerned, but that of principal
and agent? If the clerk of a merchant or tradesman offer goods for
sale to a customer, with a misrepresentation ver}' material to their
value, which representation his master knows to be false, but the clerk
supposed to be true, whereupon the customer agrees to give double the

SECT. IV.] CORNFOOT V. FOWKE. 367

real value of the goods, is the customer bound to take and pay for the
goods, because the clerk only represented a fact which he did not know
to be false? or is not the contract, for the purpose of trying its validity
against the purchaser, to be dealt with in the same way as if tiie mas-
ter had made the representation? Qui fdcit per aliian facit per se.
And what would be the condition of men, if, in every case of a treaty
made with an agent, the party was under the necessity of submitting to
suffer b}' the misrepresentations of that agent about the subject-matter,
because he had not first ascertained the extent of the agent's powers?

In transactions that are of a ver}- unusual character, and where
power is rarely granted to an agent to bind his principal, except within
very strict limits, it ma}' be a ver}' necessary caution in the party
dealing with the agent to know first the extent of his authoritj' ; but in
so ordinar}' a transaction as that of letting a readj-furnished house,
where the principal refers to a house-agent for particulars, and leaves
it to him to procure a tenant, — who would think of suspending the
treat}', in order to write to the landlord in the countrj' to make inquir-
ies, lest the agent might not have full power or information to answer
them ? Nevertheless the argument for the plaintiff is mainly founded
upon a conjecture, that the agent might possibly have had no authority
to make a representation of this kind, upon which it is contended that
it must not be presumed that he had such an authority without proof,
and that if he had no such authority he could not bind his principal.

I grapple with this argument, first, b}- denying the propriety of the
conjecture upon which it is founded. I maintain that a man who
employs his agent to let his house or farm, or who refers inquirers to
an agent for particulai's upon an}' subject, must be presumed, if the
contrary be not proved, to have given that agent full authority to com-
municate all information that is connected with the subject, and that it
may be important to the inquirer to know. But I also deny the con-
clusion, as far as it applies to this case. Let us simplify the case, by
assuming that the agent was expressly prohibited from giving any in-
formation, except as to the amount of rent demanded, and strictly
charged to refer the inquirers to the principal for all other matters ;
nevertheless the agent, without knowing anything of the facts, thinks
fit to answer to inquiries upon every subject upon which it may be
material to the tenant to be truly informed ; to make such false repre-
sentations as induce the tenant, without hesitation, to agree to take the
house at the rent proposed : whereas no man in his senses would have
taken the house at such a rent, or perhaps at any rent, had the facts
been truly represented. Now, if the tenant should afterwards bring
an action of deceit for a false representation, I will not stop to inqnire
whether the landlord would be liable, upon his proving that he ex-
pressly prohibited his agent from answering any question ; but I will
say that if, in such an action, he might defend himself upon the ground
of want of authority in his agent, it by no means follows that he could
insist upon enforcing the contract against the tenant who renounced it.

368 GRANT V. NORWAY. [CHAP. II.

In other words, as I have before said, it does not follow, that beeause
he is not bound b}' the representation of an agent without authority, he
is therefore entitled to bind another man to a eontract, obtained by the
false representation of that agent. It is one thing to say that he may
avoid a contract if his agent, without his authority, has inserted a
warranty in the contract ; and another to say, tliat he may enforce a
contract obtained by means of a false representation made b}' his
agent, because the agent had no authority.

Upon these grounds, which I own seem to me ver}' clear, I am of
opinion, that for the purpose of this plea the representation of the
agent is that of the principal ; and the falsehood of that representation
to the knowledge of the principal, and the concealment of a material
fact to the defendant, are sufficient to sustain the plea. . . .

Mule absolute for a new trial}

GRANT AND OTHERS V. NORWAY and others.
Common Pleas. 1851.

[10 C. B. 665.]

This was an action upon the case hy the indorsees of a bill of
lading, against the owners of a vessel, to recover the amount of ad-
vances made b}' the former upon the bills of lading, the goods never
having in fact been shipped.

The declaration stated, that, on the 17th of April, 1846, the defend-
ants were possessed of a certain ship or vessel called the Belle^ b'^'^g
in the river Hooghle}', at Bengal, being then bound for London, for the
carriage of goods and merchandise, to be shipped on board, for freight
to be therefor paid to the defendants ; that thereupon the defendants
gave to Messrs. Biale, Koch, &, Co., being merchants and traders
then in credit and carrying on business in Calcutta, a bill of lading,
signed bj' the master of the said ship, who was then and there the
servant and agent of the defendants in that behalf, and purporting to
state, in the name of the said master, that Biale, Koch, & Co. had
shipped, in good order, in the said ship, twelve bales of silk, marked
and numbered as in the margin of tiie said bill of lading, and that the
same were to be delivered in good condition, &c.. unto order or assigns,
to wit, to the order of Biale, Koch, & Co., he or the}' paying freight at

^ There are comments on this case in Wilson r. Fuller, 3 Q. B. 68, 1009 (Ex. Ch.,
1843) ; Fitzsimmons ;•. Jo.^lin, 21 Vt. 129, 139-141 (1849) ; Feret v. Hill, 15 C. B. 207
(1854); National Exchange Co. v. Drew, 2 Macq. 103,108-109, 144-145 (1855);
Wheelton v. Hardisty, 8 E. & B. 232, 270-271 (1857) ; Barwick r. English Joint Stock
Bank, post, p. 412 (Ex. Ch., 1867) ; Ludgater v. Love, 44 L. T. Rep. n. s. 694 (C. A.,
1881). — Ed.

SECT. lY.J GRANT V. NOKWAY. 369

£5 per tou, &c. ; that in the margin of the said bill of lading were
certain marks and numbers, purporting to relate to the said goods;
that, by the custom of merchants, bills of lading are commonly pledged
and deposited by the holders with others as a security for the payment
of money, as the defendants well knew ; that the defendants, by such
delivery of the said bill of lading, enabled Biale, Koch, & Co., to
deposit the said bill of lading with other persons as a security for the
payment of money, and that, in fact, Biale, Koch, & Co. afterwards
indorsed the said bill of lading to, and deposited the same with, the
plaintiffs as a security for the payment of a large sum of money,
to wit, the sum of £1,684, being the amount of an unpaid bill of
exchange of which the plaintiffs, at the request of Biale, Koch, & Co.,
then became and were the indorsees and bona fide holders for value,
and of which Biale, Koch, & Co. were the drawers, and which bill of
exchange, bearing date the 18th of April, 1840, was by them the said
Biale, Koch, & Co. drawn upon Messrs. Johnson, Cole, & Co., London,
and whereby they requested the drawees, at ten months' date, to pay
to them the said drawers, or order, the said sum of £1,684; and to
place the same, with or without advice, to account of shipments of silk
per Belle, and rice^^er Castle Eden., and the said Biale, Koch, & Co.
then indorsed the said bill of exchange to the plaintiffs ; that the plain-
tiffs were induced by Biale, Koch, & Co. to become the indorsees and
holders of the said bill of exchange, and to give value for the same to
the amount of £1,684, by the deposit of the said bill of lading, but for
which the\' would not have given value nor become indorsees and
holders thereof; that the plaintiffs, confiding in the truth of the said
bill of lading, and believing, by reason of its contents, that the goods
therein described had been and were shipped on board the said ship,
deliverable under the said bill of lading to the order of Biale, Koch,
& Co., consented to, and did, give value for the said i)ill of exchange ;
that, if true, the goods mentioned in the bill of lading would have been,
according to the custom of merchants, deliverable to the plaintiffs as
holders thereof; that the said ship sailed, and arrived in London
on &c., but did not convey or deliver the said supposed goods ; that
the said goods in the said bill of lading mentioned never were shipped
in and upon the said ship ; that the said bill of exchange was after-
wards, when the same became due, duly presented for payment to the
drawees, and dishonored, and that the plaintiffs were still holders thereof
for value, and unable to procure payment of the said bill of exchange,
and the money for securing the payment of which the said bill of
lading was so deposited, still remained due, and the plaintiffs were
unable to procure pa^'ment thereof; and that, by reason of the
premises, and of the misconduct of the defendants as aforesaid, the
plaintiffs had lost and been de[)rived of the said money for the securing
the payment of which the said bill of lading was so deposited, to wit,
the said sum of £1,684, in the said bill of exchange mentioned. — to
the plaintiffs' damage, &c.

370 GEANT V. NOEWAY. [CHAP. 11.

Pleas, — first, not guilty, — secondly, that the said ship was not
bound, as in the declaration mentioned, for the carriage of goods, &c.,
for freight, &c., as in the declaration mentioned, — thirdly, that the
said bill of lading was not signed by the master of the said ship, in
manner and form as in the declaration mentioned, — fourthly, that the
said master was not the servant or agent of the defendants in that
behalf, in manner and form as in the declaration mentioned, — fifthly,
that the defendants did not enable the said persons in the declaration
mentioned, to deposit the said bill of lading with other persons as a
security for the payment of money, in manner and form as in the declara-
tion alleged, — sixthly, that the defendants did not deliver to the said
persons in the declaration mentioned the said bill of lading therein
mentioned, in manner and form as in the declaration alleged.

Upon these pleas the plaintiffs joined issue.

At the trial, before Wilde, C. J., at the sitting at Guildhall after
Trinity terra, 1849, the jury found a verdict for the plaintiffs on the
issues joined upon the second and third pleas : and, as to the residue
of the issues, a special verdict was found, stating in substance as
follows : —

The plaintiffs, during the year 1846, and thence hitherto, had carried
on business as merchants, at Calcutta, under the firm of Gladstone
& Co.

During the month of April, 184G, the defendants were possessed of,
and owners of, the £eUe, then lying in the river Hooghle}', at Calcutta,
bound for London, by charter-party for the conveyance of goods for
freight ; Henry Tillman being the master appointed b}' the defendants.

On the 17th of April, in that year, Henry Tillman, being such
master, and professing to act as such, signed and delivered to Biale,
Koch, & Co., in the declaration mentioned, being merchants and
traders then in credit and carrying on business in Calcutta, a bill of
lading, in the usual form, as follows, and numbered in the margin : —

" Shipped, by the grace of God, in good order and well conditioned,
upon the good ship Belle, whereof is master for this present voyage
Henry Tillman, and now riding at anchor in the Hooghley, and bound
for London, twelve bales of silk, numbered as in the margin, to be
delivered in the like good order at London, the act of God, the Queen's
enemies, &c., excepted, unto order or assigns, he or they paying freight
£5 per ton, &c. In witness whereof the said master hath affirmed to
three bills of lading, all of this tenor and date, the one of which being
accomplished, the other two to stand void. Dated this 17th day of
April, 1846. Contents unknown.

(Signed) " H. Tillman."

The bill of lading was indorsed " Biale, Koch, & Co."

By the custom of merchants, bills of lading are commonly pledged
and deposited b3' the holders with others as a securit_y for the payment
of mone}-.

B\' such delivery of the said bill of lading, Biale, Koch, & Co. were

SECT. IV.] GRANT V. NORWAY. 371

enabled to pledge and deposit the said hill of lading with other persons
as a security for the payment of money: and, on the 18th of Ai)ril,
1846, the plaintiff's purchased from Biale, Koch, & Co., who then
indorsed and delivered to tlie plaintiff's for full value, the bill of
exchange for £l,G84 in the declaration mentioned, upon the terms tliat
the payment of the amount of the bill of exchange should be secured
\)y the deposit of tlie said bill of lading, — which they also indorsed to
the plaintiffs, and deposited with them for that purpose.

The bill of exchange was drawn by Biale, Koch, & Co., and requested
the drawees to pay £1,684 at ten months, to the drawers, or order, and
to place the same, with or without advice, to account of shipments of
raw silk ^>er Jielle, and rice per Castle Eden.

The bill was accepted, payable at No. 6 Great Winchester Street,
"on delivery of the shipping documents against which this bill is
drawn."

The plaintiffs were induced hy Biale, Koch, & Co. to give value for,
and to become the indorsees of, the bill of exchange, by the deposit of
the bill of lading. If true, and if the goods had really been shipped,
the bill of lading would have been an available security to the plaintiffs,
of the value of £780, and the goods deliverable to them as holders of
the bill of lading.

The vessel sailed, and arrived in London : but the goods were
never shipped ; and the contents of the bill of lading were untrue.

The bill of exchange, of which the plaintiffs were still holders, had
been presented for payment, and was still due, and also the £1,684, for
securing the payment of which to the extent of £780, the bill of lading
was deposited.

The goods to be shipped on board at Calcutta were to be shipped in
pursuance of a charter-party entered into in London, on the 24th of
September, 1845, between the defendants and Biale, Koch, & Co. ;
and the vessel was lying in the Hooghley, and bound for London, as
before mentioned, in pursuance of the charter-part}-, and in the course
of the voyage mentioned.

The case was argued in the last term, before Jervis, C. J., CRESS■\^'ELL,
J., and Williams, J.

Croirder (with whom were Chcmnell^ Serjt., and J3oviU), for the
plaintiffs.

Butt (with whom was Cleashy), contra.

Croicder, in reply.^ Cur. adv. vult.

1 In the course of the arguments, which were very elaborate, the judges iuterposed
frequent questions and comments, some of which are here given.

The argument for the plaintiHs was interrupted thus : —

Jervis, C. J. : " If the master's authority is, to sign bills of lading only upon
receiving the goods on board, the owner does not hold him out as his agent until he
receives the goods." Cresswell, J. : " If, as you say, the authority of the master is
not a special authority, but a general authority which is conferred upon him by law,
the extent of that authority must be known to all persons who take bills of lading."
The same judge (commenting on Hern v. Nichols, ante, p. 90) : " There, the factor

372 GRANT V. NORWAY. [CHAP. IL

Jervis, C. J., now delivered the judgment of the court.

This ease was argued before uiy Brothers Cresswell and WiUianis
and myself. It arises upon a speeial verdict, and presents a question
of considerable importance, both to those who take bills of lading
on the faith of their representing property which passes by the transfer
of them, and to the shipowner, whom it is attempted to bind b}' all
bills of lading which his captain may think fit to sign. The point pre-
sented by the several pleas is substantiall}- one and the same, viz.
whether the master of a ship, signing a bill of lading for goods which
have never been shipped, is to be considered as the agent of the owner
in that behalf, so as to make the latter responsible. The authority' of
the master of a ship is ver^' large, and extends to all acts that are
usual and necessary for the use and enjoyment of the ship ; but is
subject to several well-known limitations. He ma3' make contracts for
the hire of the ship, but cannot varj- that which the owner has made.
He ma}- take up mone}' in foreign ports, and, under certain circum-
stances, at home, for necessar}' disbursements, and for repairs, and
bind tlie owners for repayment ; but his authorit}' is limited by the
necessit}- of the case, and he cannot make them responsible for money
not actually- necessar}' for those purposes, although he ma}' pretend
that it is. He ma}' make contracts to carr}- goods on freight, but
cannot bind his owners by a contract to carry freight free. So, with
regard to goods put on board, he ma}' sign a bill of lading, and
acknowledge the nature and quality and condition of the goods.
Constant usage shows that masters have that general authority ; and,
if a more limited one is given, a party not informed of it is not
affected by such limitation. "The master is a general agent to
perform all things relating to the usual employment of his ship :
and the authority of such an agent to perform all things usual in
the line of business in which he is employed cannot be limited by any

entered into a contract with the plaintiff for the employer. Here, you are a step
further off. You say, — your agent, with whom I made no contract, has enabled
a man with whom I did contract, to cheat me." The same judge again : " Suppose
this were not the case of an indorsee of a bill of lading, but that of the owner of the
^oods, who really sent them by a carrier for the purpose of their being shipped, and
the master gives a receipt to the owner of the goods, but the carrier fails to deliver
them : in that case, the owner would be induced by the captain's receipt to abstain
from pursuing the thief : but, is the indorsee of the bill of lading, under the circum-
stances supposed, in the same position as the original owner of the goods ? "

The argument for the defendants was interrupted thus : —

Cresswell, J. : " Mr. Crowder says, true it is that it is well known that the
captain's real authority is to sign bills of lading only for goods that are actually put
on board the ship : but, he says, there is an apparent authority to sign all bills of
lading without restriction. Try that by the test of a partner's authority to sign bills
of exchange for the purpose of the trade. One draws or accepts a bill in fraud of his
partner, — what answer does this afford to a bona Jide holder for value ? " The same
judge (commenting on Howard v. Tucker, 1 B. & Ad. 712): "Had the captain
authority to give a bill of lading acknowledging that freight had been paid, when in
fact it had not ? " — Ed.

SECT. IV.] GRANT V. NORWAY. 373

private order or direction not known to the part}' dealing with
him." Smith's Mercantile Law, p. 59.

Is it then, usual, in the management of a ship carr3ing goods on
freight, for the master to give a bill of lading for good.s not put on
board ? for, all parties concerned have a right to assume tliat an agent
has authority to do all which is usual. The very nature of a bill
of lading shows that it ouglit not to be signed until goods are on
board ; for, it begins as describing them as shipjyed. It was not con-
tended that such a course is usual. In Lickbarrow v. Mason, BuUer, J.,
says, 2 T. R. 75 : "A bill of lading is an acknowledgment by the
captain, of having received the goods on board his ship: therefore,
it would be a fraud in the captain to sign such a bill of lading, if he
had not received the goods on board ; and the consignee would be
entitled to his action against the captain for the fraud."

It is not contended that the captain had any real authority to sign
bills of lading, unless the goods had been shipped ; nor can we
discover any ground upon which a party taking a bill of lading by
indorsement, would be justified in assuming that he had authority to
sign such bills, whether the goods were on board or not.

If, then, from the usage of trade, and the general practice of ship-
masters, it is generally known that the master derives no such author-
ity from his position as master, the case may be considered as if the
part}' taking the bill of lading had notice of an express limitation of
the authority ; and. in that case, undoubtedly, he could not claim
to bind the owner by a bill of lading signed, when the goods therein
mentioned were never shipped. It would resemble the case of goods
or money taken up by the master under pretence that they were wanted
for the ship, when in fact they were not ; or a bill of exchange
accepted or indorsed per procuration, when no such agency existed ;
Alexanders. Mackenzie, 6 C. B. 766. The words '•'• per procuratioji"
give notice to all persons that the agent is acting under a special
and limited authority ; and therefore the party taking such a bill
has to establish the existence of the authority ; it is not enough to
show that other bills similarly accepted or indorsed have been paid,
although such evidence, if the acceptance were general, by an agent in
the name of the principal, would be evidence of a general authority to
accept in the name of the principal. So, here, the general usage gives
notice to all people that the authority of the captain to give bills
of lading is limited to such goods as have been put on board ; and
a party taking a bill of lading, either originally, or by indorsement, for
goods which have never been put on board, is bound to show some par-
ticular authority given to the master to sign it.

There is little to be found in the books on this subject. It was
discussed in Berkley v. AVatling, 7 Ad. & E. 29 ; 2 N. & P. 178.
That case was decided on another point : but Littledale, J., stated, that
in his opinion, a bill of lading is not conclusive upon the shipowner.

374 UDELL V. ATHERTON. [CHAP. IL

For these reasons, we are of opinion tliat the issues should be
entered for the defendants, and that the defendants are entitled to
judgment. Judgment f 07' the defendants,^

UDELL V. ATHERTON.

Exchequer. 1861.

[7 H. 4' N. 172.]

The first count of the declaration stated, that the defendants were
possessed of a certain log of mahogany which they well knew to be
rotten and defective ; yet that they, by fraudulently concealing from
the plaintiff that the said log was rotten and defective, induced the
plaintiff to buy the same for moi'e than its value, to wit, for £99, and
to accept two bills of exchange, payable to the defendants' order for
the said sum, the said log being worth much less than the said sum.
Averments : that the plaintiff hath been forced to pay one of the bills
and will be forced to pay the other, and by reason of the premises hath
sustained loss. — Second count : that the defendants by falsely and
fraudulently representing to the plaintiff that a certain log of mahogany
was a sound and perfect log of mahogany, and that the same was
reasonably worth in the trade at the rate of 3s. a foot, induced the
plaintiff to buy the said log at the said rate. Averments : that the said
log was not worth 3s. a foot, and that the plaintiff had sustained other
loss.

Plea. — Not guilty.

The cause was tried, before Martin, B., without a jurj-, at the Lon-
don Sittings after Michaelmas Terra, 1860, when the following facts
appeared : The plaintiff was a cabinet-maker and the defendants were
timber merchants. In April, 1860, one Youngman, who was em-
plo^'ed b}^ the defendants to sell their timber on commission, took the
plaintiff to the West India Docks and showed him three logs of ma-
hogan}' belonging to the defendants. Youngman asked 3s. 6c?. per
foot for two of the logs and 4s, 6d. per foot for the third. Youngman
represented the third log as a very fine log and perfectly' sound. He
called several times on the plaintiff and urged him to buy this log,
repeating his representations as to its qualit}'. On one occasion he
said, " There is not finer wood in London, I will warrant it worth 6s. a
foot." The plaintiff said, " Never mind Qs., will you warrant it worth
3s. a foot?" and Youngman replied, "I will." The plaintiff then

1 Ace: Schooner Freeman i'. Buckingham, 18 How. 182 (185.5); Pollard v.
Vinton, 105 U. S. 7 (1881) ; National Bank of Commerce u. C. B. & N. Railroad Co.,
44 Minn. 224 (1890). — Ed.

SECT. IV.] UDELL V. ATHERTON. o75

offered to bu}' it at 3s. a foot, but Youngman refused to sell it at that
price. A few days afterwards he sent the plaintiff an invoice, in which
the log was charged 3s. a foot, together with a delivery order for the
log, and two bills of exchange respectively drawn on the plaintiff at
four and six months' date, and payable to the defendants' order. The
plaintiff accepted the bills and removed the log to his premises. The
four months' bill was paid at maturity and before the plaintiff dis-
covered any defect in the log. Previously to the six months' bill be-
coming due, the plaintiff ordered the log to be cut up, and he then
discovered a large hole in one of its sides, which was caused by a branch
of the tree having died before it was felled. On account of this defect
the log was not worth more than Is. Sd. a foot at the utmost. Young-
man afterwards called upon the plaintiff and said that he was never
so deceived in a log in his life, and he admitted that it was a verj- bad
one. Plaintiff said he ought to have told him of the defect in the log,
and he replied that he did not know of it. Youngman had previously
offered to sell the log to a timber merchant, named Oliver, who re-
fused to buy it on account of its defective qualitv, and had pointed it
out to Youngman. After this Oliver again saw the log, and it had
been turned over so that the hole in it could not be seen. The plain-
tiff complained to the defendants of the defective qualit}- of the log,
and they said that they had neither authorized nor wished Youngman
to sell wood as sound which was defective, and thev referred the plain-
tiff to him. The defendants refused to make any allowance, and in-
sisted on the payment of tlie whole of the agreed price. There was
no evidence that the defendants knew of the fraudulent representations
of Youngman, or that they were aware of any defect in the log. Upon
these facts the learned judge was of opinion that the plaintiff could not
recover in this form of action, and his lordship directed a nonsuit.

JTmvkins, in last Hilary Term, obtained a rule nisi for a new trial,
on the ground that the learned judge had improperly ruled that the
defendants could not, under the circumstances, be made liable for the
fraud of their a^ent.

Coleridge and Kingdon showed cause.

Sarnard and Willoughby, in support of the rule.

Cur. adv. vult.

The learned judges, having differed in opinion, now delivered the
following judgments.

Wilde, B. I am of opinion that the rule ought to be absolute to
enter the verdict for the plaintiff; and I have the authority of the Lord
Chief Baron for saying that he agrees with the judgment.^ . . .

The question is thus raised, whether a principal, who has had the
benefit of a contract made by his agent, is responsible for a deliberate
fraud committed by his agent in the making of the contract, by which
fraud alone the contract was obtained.

1 A statement of the case is here omitted. — Ed.

376 UDELL V. ATHEKTON. [CHAP. IL

I sa}' " reponsible " generally, because I am not aware that if this
action of deceit does not lie against the principal an}- other form of
action will. If this be so, the consequences appear to be as follows : -^

The man who has reaped the benefit of a fraud committed on his
behalf keeps the fruits in his pocket ; the man defrauded in the con-
tract has to look to the intermediate person and not him with wliom
he contracted. If the agent is a man of no means this remedy would
be fruitless. If the agent is able to pay he does so without remedy
over, and the person defrauded is reinstated out of the funds of one
man while the fruits of the fraud are i-etained by another.

These results make it desirable to examine closely the principles
upon which such a decision is to be supported.

It is said that a man who is himself innocent cannot be sued for a
deceit in which he took no part, and this whether the deceit was by his
agent or a stranger. To this, as a general proposition, I agree. All
deceits and frauds practised by persons who stand in the relation of
agents, general or particular, do not fall upon their principals. For,
unless the fraud itself falls within the actual or the implied authority
of the agent, it is not necessarily the fraud of the principal.

On this principle it was that the Court of Common Pleas, in Grant v.
Norway, 10 C. B. 665, held a shipowner not responsible for the fraud
of the captain in signing bills of lading without any goods on board ;
and so, in the case of Coleman v. Riches, 16 C. B. 104, a wharfinger
was held not liable for a false receipt, which his agent had given, rep-
resenting that goods had been received at the wharf, which had not
so been received. In neither of these cases did the principal authorize
or in an}' way adopt or obtain the benefit of the fraudulent act. But
does this principle apply to fraud committed in the making of contracts
which the principal has adopted and of which he has claimed and ob-
tained the benefit?

The contract is made b}- the agent for the principal, but when made,
if authorized or adopted, it becomes in law the contract of the principal.
Can the principal treat the contract as his, and repudiate the fraud
upon which it was built as the agent's? In the making of the actual
contract, when the agent speaks he does so with the voice of the
principal, for it is the principal's contract he is making.

In the representations which immediateh* preceded the contract, is
the agent speaking only for himself? If so, on what principle is it
that the principal could not sue upon a contract in itself valid, but pre-
ceded and brought about by fraudulent representations of the agent?
And yet this is the plain law.

This brings me to another difficulty. For it would surel}' be an
anomalous state of things, that the innocent principal could not recover
upon his contract because fraudulently obtained b}' his agent, but that,
if before discover}' the contract be performed, he may ever after keep
the benefit of it. Can the buyer's right, upon any sound principle, be
made to depend on the extent to which the transaction has been com-

SECT. IV.] UDELL V. ATHERTON. 377

pleted? If the fraud had been discovered before the log was cut, could
not the buyer have rescinded the contract? If so, why may he not
recover now, when the state of tilings is unaltered by any laches or
default of his?

A distinction has indeed been made in equity between contracts per-
formed and unperformed. The latter are sometimes set aside for mis-
take or surprise, wliile llie former are not. But no sucli distinction has
ever been made in favor of fraud. Fraud, in all courts and at all
stages of the transaction, has, I believe, been held to vitiate all to
which it attaches.

Next, as to the authorities. — There is, I believe, no case in which
the principal's immunity, under such circumstances, has been estab-
lished. The only dictum in favor of it is, I believe, that of Lord
Campbell in the course of argument in Wilde v. Gibson, 1 H. L. 605,
G15. It may be doubted if it is correctly reported, at any rate it is
to be taken, in my opinion, in reference only to the point then under
argument.

The authorities the other wa}- are as it seems to me overwhelming.
Baron Parke, in Moens v. Heyworth, 10 M. & W. 157, says : To
support this action for false representation, it is necessary "to prove
that by words or acts of the defendants, or tlieir agents, it was made
falsel}- and for the improper purpose of inducing the other party to
purchase." Again in Wilson v. Fuller, 3 Q. B. 77, Tindal, C. J.,
in delivering the considered judgment of the full Court of Exchequer
Chamber, says: " Tliere was there a fraudulent concealment by
Wadeson (the agent) which it must be admitted would bind Mrs. Wil-
son, if proved." And here AVadeson was onl\- agent and Mrs. Wilson
avowedly innocent, and the action against her, as here, for deceit.
Again, the Chief Justice says: "As to the representation made by
Wadeson, which if fraudulent it ma}' be admitted would bind her," &c.
And again, in the much canvassed case of Cornfoot v. Fowke, 6 M. &
W. 373, Baron Parke, who certainlj' was not disposed to overstrain
the rigid rules of law in favor of an}' general views of equity, said :
" It must be conceded that if one employ an agent to make a contract,
and that agent, though the principal be perfectly guiltless, knowingly
commit a fraud in making it, not only is the contract void but the
principal is liable to an action." Lastly, this point was decided in
Hern v, Nicholls, 1 Salk. 289 ; often quoted, and so far as I know nevei
impeached.

To these dicta must be added the authority of the Exchequer Cham-
ber in a still later case, Omrod c. Huth, 14 M. & W. 651. It was an
action for deceit for fraudulently putting forward certain parcels of
cotton as fair samples ; and the defendants, the sellers, were there
charged, as here, with making the fraudulent representation. At the
trial it appeared that the sale was by the defendants' brokers. Colt-
man, J., who tried the cause, directed the jury, " That unless they could
infer that the defendants, or their brokers, were acquainted with the

378 UDELL V. ATHERTON. [CHAP. IL

fraud that had been practised in the packing, or had acted ir, the trans-
action against good faith or with a fraudulent purpose, the defendants
were entitled to the verdict." On a bill of exceptions the Exchequer
Chamber upheld this ruling, saying: "If, indeed, the representation
was false to the knowledge of the party making it, this would be con-
clusive evidence of fraud." And the " party making it " in that case
was, if anybody, the agent.

I find no case in which this principle has been seriously doubted.
I find no text writer who does not adopt it. It is well stated in Mr.
Story's Principal and Agent at § 134 : "■ For where the acts of the
agent will bind the principal, there his representations, declarations,
and admissions respecting the subject-matter will also bind him, if made
at the same time and constituting a part of the res gestce." And again,
at § 1.35, he says: " If the agent at the time of tlie contract makes
any representation, declaration, or admission, touching the matter of
the contract, it is treated as the representation, declaration, or admis-
sion of the principal himself"

The defendant has adopted the sale made by his agent and received
the price. He has, by the fraudulent statements of the agent, obtained
rather more than twice what he could have obtained by an honest sale.
It is not the case of any matter collateral, as a warranty maj' be. It
is not the case of a representation made out of and bej'ond the particu-
lar business then transacting b}' the agent on the principal's behalf
It is the representations made in the very dealing itself, in the conver-
sation that resulted in the contract, that are in question.

The defendant claims the right of separating the contract from that
which induced it, of holding the price and ignoring the false statements
which largely enhanced it. In m}' opinion, justice, the common reason
of mankind, and every sound rule of law are opposed to his doing so.
Whatever his previous authority to the agent, whatever his own inno-
cence, he must, as it seems to me, adopt the whole contract, including
the statements and representations which induced it, or repudiate the
contract altogether.

There are, no doubt, many frauds committed by agents which would
not bind their principals. But I hold that the statements of the agent
which are involved in the contract as its foundation or inducement
are in law the statements of the principal.

To this most equitable and reasonable extent the identity of the
principal with the agent has I conceive been long established in our
laws. It has been much discussed whether an untrue but innocent
statement by an agent, when coupled wdth a knowledge in the princi-
pal, would support an action of deceit against the principal or bar an
action on the contract. Such were the cases of Cornfoot v. Fowke
and Fuller v. "Wilson.

The artificial identification of the agent and principal, by bringing
the words of the one side b}' side with the knowledge of the other, in-
duced the apparent logical consequence of fraud. On the other hand

SECT. IV.] UDELL V. ATHERTON. 379

the real innocence of both agent and principal repelled the notion of
a constructive fraud in either. A discordance of views, varying with
the point from wliich the subject was looked at, was to be expected.
And the result is found in the elaborate reasoning of the judgments in
the above cases.

But what bearing have they upon the case now in hand? — a re-
markable one. The point now in dispute was tacitly conceded by
every one. If the agent's statements were not those of the principal,
it was needless to inquire whether they were fraudulent. It would
have been enough to establish that what the agent had said he had
said without authority, and the immunity' of the employer would have
been established, — it was needless to inquire whether the statement
was fraudulent. According to the defendant's argument in the present
case, the statements by the house agent in Cornfoot v. Fowke, not
being authorized, in no way affected his principal whether fraudulent
or not; and yet the whole inquiry was confined to whether they were
fraudulent or not, — a needless investigation if they did not bind the
principal at all.

But the same question has arisen and been the subject of decision in
another form, I mean on the question of admissibility of evidence.
Whenever the unauthorized statements of the agent are not in law the
statements of the principal, they would not be admissible in evidence
against the principal. To whatever extent they are admissible, they
must in law be considered the statements of and binding on the
principal.

Now, what is the rule and where is the line between admissibilit}'
and inadmissibility drawn ? There was no more careful and accurate
judge than Sir William Grant, and he states the rule thus: "What
the agent has said may be what constitutes the agreement of the prin-
cipal, or the representations or statements ma}' be the foundation of
or the inducement to the agreement. Therefore, if writing is not neces-
sar}' by law, evidence must be admitted to prove the agent did make
that statement or representation." Fairlie v. Hastings, 10 Ves. 126.
And this, said Tindal, C. J., in Garth v. Howard, 8 Bing. 451, 453,
" is the leading case on the subject."

Other judges have laid down a similar rule. In Langham v. AUnutt,
4 Taunt. 511, 519, Gibbs, C. J., says: "When it is proved A. is
agent of B., whatever A. does or sa3's or writes, in the making of a
contract as agent of B., is admissible in evidence, because it is part
of the contract which he makes for B., and therefore binds B." In
Doe V. Martin, 4 T. R. 39, 66; Lord Kenyon says: "Without im-
puting any fraud to Martin, and, indeed, it is negatived by the verdict,
the maxim, that the principal is civilly responsible for the acts of his
agent, universallv prevails, both in courts of law and equity ; and,
therefore, whatever misconduct and fraud are imputed to Cruttenden,
it must affect his principal, Martin."

It remains to answer some of the objections made. It is said that

380 UDELL V. ATHERTON. [CHAP. IL

the reason why no action could be maintained b}' the seller on the
contract is, tliat the principal cannot stand in a better position than
the agent who actually made the contract ; and that as the agent could
not sue on the contract the principal cannot. But this reasoning ap-
plies onl}- to derivative rights. Whereas here the contract is the prin-
cipals' from the first though made by the agent ; and as his title is
not derivative so it is not prejudicially affected by any acts but those
which are in the eye of the law his own.

Another principle has been invoked, as it seems to me improperly.
When one of two innocent people must suffer, he who has entrusted
the fraudulent agent must, it is said, be content to bear the loss. If
such a principle applied to this case, I should have thought that he
who entrusted was the seller and not the buyer, who was deceived.
But to me it appears to have no application. It applies, as it seems
to me, only to cases in which by the fraud of the agent both parties,
he who employed him as agent and he who dealt with him, have been
defrauded. Whereas here there is only one sufferer, the other being
largely a gainer by the deceit as matters now stand; and if made to
pa}- the excess of price back would still retain the real value of the
log.

I will only add that the great importance of the question, and the
sincere respect I have for those who take an opposite view, have in-
duced me thus fully to vindicate what I believe to be the law, in favor
of those who have been cheated and against those who claim to retain
the proceeds of the cheat.

Bramwell, B.^ When it is considered that to support this decla-
ration the plaintiff must prove actual moral fraud {})er Parke, B., 2
Exch. 541 ; per Lord Cottenham, C, 1 II. L. 621), it seems manifest,
according to common sense and plain English, that the plaintiff must
fail ; for it is admitted that no such fraud has been committed by the
defendant himself, nor authorized by him either by previous authorit}-
or by any ratification or adoption of it when he knew of it ; see j^er
Lord Cottenham, 1 H. L. 625. He ratifies the sale indeed, but the
fraud is no part of the sale, no part of the contract, — it is collateral to it.
It might have been made bj- some person in no sense the defendant's
agent, but who wanted the log bought or removed, and whose fraudu-
lent statement induced the buyer to deal for it ; but the owner, b}'
selling it to a buyer so influenced, would not be responsible for a fraud
so committed. The present alleged fraud is equall}' collateral to the
contract, is as little made b}' the defendant's agent for that purpose,
and as little adopted, and becomes as little the moral fraud of the
defendant, as in the case put. Tested then by the way in which
the plaintiff has shaped his case, he ouglit to fail, for he shows neither
the actual commission of fraud b}- the defendant, nor any authority for
its conuJiission, nor any ratification or adoption of it. He fails then to

^ After stating the case. — Ed.

SECT. IV.] UDELL V. ATHERTON. 381

show that the defendant induced him to buy the log hy " fraudulent!}'
stating," &c. That this is so, Wilde v. Gibson seems in point, and it
ma}' be fairly asked, in what other shape can the plaintiff' put his case?
But, independently of considerations arising from the way in which
the plaintiff has shaped his case, I think he ought to fail. I think he
could not have put it in any wa}' in which he could recover. I do not
repeat those remarks already made which bear on this, but there are
further considerations. The wrong that was done to the plaintiff" was
inducing him to buy by fraudulent representations. This was actually
done by Youngman, and against him the plaintiff" has a remedy, as he
would have Iiad had Youngman made the same representations with the
same object and result, being in no sense the defendant's agent. It
was done at the time of the dealing or sale though the loss did not
accrue till after. Now, supposing mahogany had risen in value, and
suppose the plaintiff" had discovered the fraud and not paid for the log
or removed it, the defendant agreeing thereto on disclosure of the
fraud, would not the plaintiff have had in such a case a cause of action
against Youngman? Certainly. Would he against the defendant? As
certainly no. What then is the difference? It is said to consist in
this, that the defendant has had the benefit of the fraud, and so he
ought to be liable. But why? The reasoning would equally apply had
Youngman been in no sense his agent. Or suppose Youngman had
received the mone}' and cheated the defendant of it, would the plain-
tiff then have or not have a remedy against the defendant? It cer-
tainly would be a most singular thing that the defendant should be
liable for this fraud of Youngman's, though not liable on Youngman's
warranty, which he is not, though the same reasoning would apply
(See Fenn v. Harrison, 3 T. R. 760 ; per Ashurst, J. ; and the case
of Brady v. Todd, 9 C. B., N. S. 592.) Y^'oungman was not a general
agent of the defendant, nor was there an}- evidence of usage in the
trade for such warranties ; and, indeed, the defendant's counsel ad-
mitted that the reason Youngman's warrant}' was not relied on was
because he had no authority to give one, and the cases referred to
show the defendant was not bound by it though he received tlie price
agreed for on the face of it. There is the answer to the general dictum
of Gibbs, C. J., in Langhorn v. AUnutt, 4 Taunt. 511, 519. Let us
suppose an agent saying, " I will give a warranty and in writing, then
I know the extent of my liability, but I will make no representations
lest I should be troubled with questions as to their extent and correct-
ness ; " would it be reasonable in such a case that a party should sue
the principal on alleged false representations because he could not do
so successfully on the warranty ? Tlie cases referred to show that, by
adopting the transaction, everything done by the agent is not adopted.
It is asked, could the defendant have enforced the purchase of the log
after both he and the plaintiff" knew of the fraud? Probably not. It
may be that the contract itself is void, or voidable at the option of the
defrauded party while all is in fieri; or it may be it is so up to the dis-

382 UDELL V. ATHERTON. [CHAP. IL

covery of the fraud. But suppose the plaintiff had taken away the log,
and not paid for it. What then would be the case of the defendant?
Suppose the log was worth half what it was sold for, is the defendant
to have nothing, or the real value, or the agreed price? It seems to
me the latter. It seems to me the defendant may fairly say, "I do
not rel}' on the contract, but you have taken my goods, and you took
them on a representation made by you to me you were to pay so much
for them, and that you must pa}'." It is a mistake to assume the de-
fendant is availing himself of Youngman's fraud. He wants that
mone}' for which he agreed the plaintiff might have the log. It ma}- be
that, without an}' representation or fraud, he would have got as large
a price from some one who trusted to his own judgment. To what
extent is such a liability to be carried? Suppose at a sale of furniture
and goods in a house there is a gun, and the auctioneer, in answer to
inquiries, fraudulently asserts it to be of a certain make, which both
he and the owner (who however is not present) know it is not, and
then it is bought and used under such circumstances as to make dam-
ages recoverable on its bursting, is the seller liable? Suppose in this
case the log had been used as a beam to a house, and the log from its
defects had given way and the house fallen, would the defendant be
liable for damages thereby occasioned? If not, why is he now? If
he would be, would he not have great right to complain of the buyer?
Has he not, if he is liable to this claim ? The defendant may fairly
say : — " This is very hard on me : You don't use your own judgment :
you trust to representations made to you, the falsity of which you might
have ascertained by inspection and inquiry " (for if not there would be
no knowledge thereof in Youngman, and so no fraud), " you don't tell
me of them, nor give me the option of adopting or rejecting them, and
now because they were made you bring this action." How could the
defendant, how can any one, guard himself from such a liability as
this ? It is in vain he tells his agent to make no representation. Is
it his business to ask the buyer if any statements have been made?
Surely it is more the buyer's duty, when they have been made, to ask
if they are with the sanction and approval of the principal. In short
the rule ought to apply, that, as between two innocent persons, he
who has trusted must take the consequence ; he who has enabled the
commission of a fraud must be responsible for it. Now here that is
the plaintiff ; he trusted Youngman, the defendants did not : the plain-
tiff enabled Youngman to cheat him by trusting his representations
and making neither inspection of the log nor inquiry of the defendants.
It is clear Youngman would be liable to the plaintiff. Are the defend-
ants jointly liable with him, or are they separately liable, each for the
whole, or for what part? Would a recovery against Youngman be a
bar to this action? As to the argument that the fraudulent agent
may be a pauper, no doubt he may -be, but that is no reason for fixing
a person not otherwise liable. If it were, it would apply though the
log had never been taken or paid for ; and would apply to make the

SECT. IV.] UDELL V. ATHEKTON. 383

seller liable on a warrant}-. For these reasons and independentl}' of
considerations arising out of the form in which the plaintiff has shaped
his case, I think he fails to make out any cause of action against the
defendant.

It remains to examine the authorities. Of course, if there was one
directly in point in any of the superior courts I should adopt it, and
leave its correctness to be questioned on appeal. But there is not,
though it must be admitted there are dicta opposed to my view which
are entitled to the greatest weight and respect. (Story's Agenc}', sects.
58, 59, 132, 133 ; Parsons on Contracts, p. 52, 55, 3rd ed. ; Lord
Wensleydale's expression in Murra\' v. Mann, 2 Exch. 538 ; and in
Cornfoot v. Fowke, G M. & W. 373). There is however no decision in
point, and it is conceived that the opinions in question were founded
on authorities which do not warrant them to the extent to which the
plaintiff applies them, an extent probably far beyond the meaning of
their authors. The first case relied on is Hern v. Nichols, 1 Salk. 289 ;
but it is clear that was an action on a warrant}-, which was formerly
called an action for deceit, and a good warrant}' is shown there, for it

is said " the plaintiff bought the silk for silk and the defendant

sold it to him for such, which it was not." It is true the factor had
committed a fraud, but that did not make the case less one of warranty.
The observation of Holt, C. J., in that case, that he who employs and
puts a trust in the deceiver should be the loser, certainly affects the
plaintiff more than the defendants. Grammar v. Nixon, 1 Stra. 653,
is a case where the fraudulent agent was acting within the presumable
scope of his authority. In Murray /'. Mann, 2 Exch. 538, the dicta are
very wide ; but all that was decided was that money had and received
could not be maintained by a principal against an agent who had re-
ceived money for the principal, but who could not retain it, and had
been compelled to return it, owing to the fraudulent way in which he
had obtained it. Fuller v. Wilson, 3 Q. B. GH, cannot, be considered
as an authority ; for the Court of Exchequer Chamber declined to re-
view the question in Cornfoot v. Fowke, 6 M. & W. 373, and merely
decided that the case was not proved. On the other hand, Fenn v.
Harrison, 3 T. R. 760, and the case of Brady v. Todd, 9 C. B., N. S.
592, are authorities for our decision, for the reasons above given.
Croft I'. Alison, 4 B. & Aid. 590, and similar cases point the same
way. So, also, do Coleman v. Riches, 16 C. B. 104 ; Grant v. Norway,
10 C. B. 665 ; though, no doubt, in those cases the defendant sought
to be charged as principal never, in any sense, had the benefit of the
fraud. But the judgment of Rolfe, B., in Cornfoot v. Fowke, is
nearly direct on the question for the defendants, and so are the opinions
of Lord Cottenham, Lord Brougham and Lord Campbell in the House of
Lords in Wilde v. Gibson, 1 H. L. 605. I think therefore the nonsuit
should stand.

Martin, B.^ The circumstance that the defendants have received

1 After stating the case. — Ed.

384 UDELL V. ATHERTON. [CHAP. IL

the full consideration of a contract which the plaintiff might have
avoided for fraud, and the alleged injustice of permitting them to retain
the price of 3s. per foot for an article worth onl}^ Is. 3d, and which
price was agreed to be paid bv the plaintiff upon a false and fraudulent
misrepresentation made by the agent of the defendants, has been
strong!}' urged as creating a liability ; but, notwithstanding, 1 tliink
there is none. The contract was procured by fraud, and was there-
fore voidable bj' the plaintiff. It was not void, for the plaintiff
might have insisted ujjon its performance. It was voidable at his
election. The fraudulent misrepresentation was not part of the con-
tract, it was a collateral matter which would have entitled the plaintifT
to have avoided it. There would have been no legal objection to the
defendants suing as plaintiffs in an action ; but it is clear that a plea
of fraud would have been a good answer. The plaintiff only knew
Youngman in the transaction ; and altiiough the defendants might sue
upon the contract, the}' could have no greater right against the plaintiff
than Youngman had, and as the plaintiff would have an answer to the
action if brought b}' Youngman he must also have one to an action
brought by the defendants. So, also, I apprehend, if the plaintiff had
discovered the defect before he. had so used the log as to incapacitate
him from returning it, he might have returned it to the defendants and
rescinded the contract. In truth the contract was voidable for fraud
against ever}- one so long as it was executory and capable of being
avoided. But the contract has been executed. The plaintiff has taken
to the log and used it, and the defendants have received the price, and
whatever remedy exists for the plaintiff must be by way of action.
The allegation in the declaration upon which the plaintiff's right of
action rests is, that the defendants made a false and fraudulent repre-
sentation. But how can it be said with truth that the defendants made
such a representation? They themselves never made it; they never
authorized Youngman to make it ; they never knew of it until long
afterwards and until after the contract had been executed. All that
they did was to authorize Youngman to sell the log honestly. No
doubt they afforded the occasion upon which the fraudulent misrepre-
sentation was made, but they did nothing more ; and in my opinion
this is too remote to render them liable to this action. Youngman
however is clearly liable upon the facts as assumed, and if he be a
solvent man the plaintiff may obtain from him the redress to which he
is entitled. I do not think the circumstance, that he possibly may be
a person not capable of paying damages, is one which can legally be
taken into consideration in order to determine the liability of the de-
fendants. The ability to pay does not affect the question of legal lia-
bility for a wrong : all that can reasonably be required is, that the law
should afford redress against the individual who commits it.

For these reasons, if there were no authorities npon the subject, I
should be of opinion that the defendants are not responsible, but I
think the weight of authority is in favor of the defendants. It is true

SECT. IV.] UDELL V. ATHERTON. 385

there are dicta of most eminent judges in favor of the action, but
they are dicta only. The first is by Lord C. J. Tindal, in the judg-
ment of the Exchequer Chamber in Wilson v. Fuller, 3 Q. B. 68, that
a principal is bound in a civil action by a fraudulent concealment of
which his agent was guilty. The next is b}' Baron Parke, in Corn-
foot V. Fowke, 6 M. & W. 373, that if one employ an agent to make
a contract, and that agent (though his principal be perfectly guiltless)
knowingly commit a fraud in making it, not only is the contract void
but the principal is liable to an action, and he cites Hern v. Nichols,
1 Salk. 289. This was a decision at Nisi Prius by Lord Holt, and,
as in many other old cases, it is extremely difficult to saj' whether it
was an action upon a warranty or one for deceit, pi'operly so called ;
if it were upon a warranty or contract it would be no authority' upon
the present point. Li Coleman v. Riches, hereinafter mentioned, Mr.
J. Cresswell, in speaking of it, says it was not a case of fraud. So
also, in Murray- v. Mann, 2 Exch. 538, Baron Parke again said, if
an agent be guilty of fraud in transacting his principal's business the
principal is responsible. There was another case referred to, Grammar
V. Nixon, 1 Str. G53 ; but in reality it has no bearing upon the present.
It was the case of a servant, not an agent. The relation of master and
servant is entirely diftcrent from that of a principal vendor and his
agent or brokers to sell. I quite agree that no higher authority of the
kind can be cited than the opinions of Lord C. J. Tindal and Baron
Parke ; but upon the other hand there is the authority of the Lord
Chancellor, Lord Campbell, in AVilde v. Gibson, 1 H. L. 605, the other
way. He there says: "• In an action upon contract the representation
of an agent is the representation of the principal, but in an action on
the case for deceit the misrepresentation must be proved against the
principal." This, in my opinion, is an accurate statement of the law.
But I think this case is concluded by adjudged cases. In the case of
Grant v. Norway, 10 C. B. 665, where the master of a ship had signed
bills of lading for goods which had never been shipped, it was held
that his doing so did not make his owner responsible to one who had
made advances upon the faith of the bills of lading. That is a much
stronger case than the present. The master of a ship is the general
agent of the owner ; Youngman was not the general agent of the de-
fendants, he was merely the agent to sell this single log. The repre-
sentation of the master was a false and fraudulent misrepresentation ;
it was false, and false to his knowledge, and this constitutes a false
and fraudulent misrepresentation : Polhill r. Walters, 3 B. & Ad. 114;
yet the owner was held not to be responsible. So also, in Coleman v.
Riches, 16 C. B. 104, the defendant was a wharfinger at Bristol,
and one Board was his general manager at the wharf The plaintiff
had bought a parcel of wheat from one Lewis ; Board signed a wharf
receipt, in the usual form, for the wheat as received from Lewis at the
wharf. Upon the production of the receipt, and on the faith of it, the
plaintiff paid the price to Lewis. In fact the wheat had not been de-

386 UDELL V. ATHERTON. [CHAP. IJ.

livered, and the receipt was fraudulently concocted between Lewis and
Board. The Court of Common Pleas held that the defendant was not
liable in an action for a false and fraudulent misrepresentation. This
case seems to me in point, and I concur with what Mr. J. Cress-
well sajs, which I think applicable to the present, •' that the agent
was employed, not to make statements but contracts." It has been
decided that an agent to sell a chattel has not authority to give a war-
ranty except specially authorized. This matter was much discussed
in Coleman v. Riches, 16 C. B. 104; and Mr. J. Cresswell expresses
his clear opinion that the agent has no such authority, and this is in
accordance with principle. The mere authority to an agent to sell
must be to sell according to the ordinary rule of law, and that is
" caveat emptor." But the point has been expressly decided by the
Court of Common Pleas in Brady v. Todd, 9 C. B., N. S. 592, where
it was held, that an agent, being a servant, authorized to sell a horse,
had not authority to bind his master b}' a warranty that the horse was
sound and quiet in harness. This case therefore substantially over-
rules the Nisi Prius decision in Alexander v. Gibson, 2 Camp. 555.
If, therefore, an agent to sell has not authority to bind the principal
by a warranty, how is it possible that he can render him liable as upon
a false and fraudulent misrepresentation? In my judgment, therefore,
the present case is concluded by adjudged cases, and if the plaintiff is
to succeed it ought to be by the judgment of a court of error. For
my own part, as I have alreadv said, I am satisfied upon legal prin-
ciple the defendants are not liable. I use the tests applied by Mr. J.
Cresswell in Coleman v. Riches, 16 C. B. 104. First, was Youngman
in fact authorized by the defendants to make the representation? He
was not. Secondly, was his situation such as to bring the represen-
tation he made within the scope of his authority? I think not. He
was employed to sell in accordance with the ordinary rule of law, but
he was not employed to represent that to be true which he knew to be
false.

For these reasons I am of opinion that the defendants are not re-
sponsible, and that the plaintiff must seek his remedy against Young-
man, who, upon the evidence in the case, made the false and fraudulent
misrepresentation.

Some passages were referred to from Mr. Justice Story's work, and
also some placita from RoUe's Abridgment. They were cited to the
Court of Common Pleas in the cases before mentioned, and I do not
think it necessary' to refer to them.

As to the alleged hardship upon the plaintiff, there is none. He
dealt exclusivel}' with Youngman, and if he be not of ability to pay,
the plaintiff is only in the condition of all persons who have received
a wrong at the hands of a person unable to make redress. As to the
defendants, I do not know the authorit}' as to price given by them to
Youngman, but it may have been that he was not to sell the mahogany
at a lower price than 3s. per foot ; in other words, that the defendants

SECT. IV.] NEW YORK, ETC. R.ULRt)AD CO. V. SCHUYLER. 387

would keep their wood if they did not receive in exchange for it a sum
of mone}' equal to 3s. per foot. Now the i)laintiff has taken the log
and has used it. By reason of his own act he cannot restore it to the
defendants. Why then should they be deprived of the price or any
part of it? It is said that the circumstance of the defendants having
received the price agreed to be given upon the false representation
made by their agent, renders them liable to pay the difference between
the contract price and the real value. But is this so in reason and
justice? It maj- well have been that the defendants insisted that no
lower price should be accepted than 3s. per foot. If the log had turned
out worth 20s. per foot the plaintiff would have had the benefit. The
defendants ma}- have only received what they insisted upon having
before they parted with the log. The plaintiff by his own act has
deprived the defendants of the possibility of its ever being restored to
them. What right has he in reason or justice to deprive the defend-
ants of any portion of that price which the}- may have insisted upon
having before they parted with their property? If Youngman has
committed a wrong he is responsible for it ; but wh}- are the defend-
ants, who have committed none, to be deprived of their property, and
also of a part of what ma}- have been the stipulated price? The maxim
of law is, " In pari delicto potior est conditio defendentis." I think
the same rule ought to prevail in this case, where there is equal
innocence.

The result of our judgments is that the rule will be discharged.

Rule discharged.

NEW YORK AND NEW HAVEN RAILROAD CO. v.
SCHUYLER ET AL.

Court of Appeals of New York. 1865.

[34 X Y. 30.]

This is an action in the nature of a suit in equit}-, against Robert
Schuyler and several hundred other defendants. The complaint was
sustained by this court on demurrer, as will appear by reference to the
reported case in 17 N. Y. 592. The object of the complaint was to
have a large number of alleged false and fraudulent certificates and
transfers of pretended stock of the company, made b}- Schuyler, and
charged to be held b}- the defendants, adjudged spurious and void ;
and to compel the certificates to be brought into court and cancelled ;
and to enjoin the several defendants from further prosecuting actions
then pending, and from bringing suit against the company to enforce
such certificates and transfers, or to recover damages for any reasons
connected therewith.^ . . .

1 The abstract of the complaint is omitted. — Ed.

388 NEW YORK, ETC. RAILROAD CO. V. SCHUYLER. [CHAP. IL

A large number of the defendants answered, setting forth various
facts and grounds upon which they claimed that the plaintiffs were not
entitled to the relief sought, and that the certificates or transfers
respectively held by them were, or ought to be, treated as valid and
binding on the company ; or damages awarded to them for injuries sus-
tained by the alleged frauds of Schuyler, and many asking for relief
by way of judgments for damages against the company.

The case was tried at Special Term. . . . The Court found various
facts (hereinafter more particularly stated), upon which he adjudged
that the plaintiffs were entitled to the relief sought by their complaint,
as to most of the defendants, and ordered judgment accordingly. He
also found facts in respect to a large number of the defendants, upon
which he decided that the plaintiffs were liable to them respectively for
the damages sustained in consequence of their certificates or transfers
turning out to be false and fraudulent, and were entitled separately to
maintain actions against the plaintiffs for such damages, but that such
damages could not be appropriately, under the pleadings in the case,
adjudged to them in this action.

From the judgment . . . the plaintiffs appealed to the General Terra
from all that portion relating to the rights of the defendants to recover
damages for the injuries to them, and to maintain actions against the
plaintiffs therefor ; and some of the defendants appealed from so much
of the decision as adjudged their certificates and transfers invalid, and
annulled the same ; and some from such decision and from the decision
that relief by cross-judgments for damages could not be awarded in this
suit.

On these appeals the General Term of the first district affirmed the
judgment (with some modifications as to a few of the parties not now
important to refer to), and decided, in substance, that upon the facts
found by the Special Term, as to the several defendants, it was the
duty of the court to have proceeded and assessed the amount of their
damages respectively, and awarded judgments in this action against the
plaintiffs therefor, and they ordered the case to be sent back to the Special
Term for that puri)ose. . . . Thereupon the Special Term . . . pro-
ceeded to make the said assessments ; and . . . found further facts,
. . . upon which judgments were ordered in favor of said defendants
respective!}', to be entered as part of the original judgment and as an
amendment thereof. The plaintiffs took exceptions to the proceedings
to assess . . . and to the judgments. . . .

The last or amended judgment was entered June 30, 1864, and from
this judgment the plaintiffs again appealed to the General Tei-m, where
the same was aflSrmed ; and from such affirmance the plaintiffs appeal
to this court.^ . . .

The particular facts of individual cases, or classes of cases, are
stated so far as necessary in the course of the opinion. The general

1 From the statement and also from the opinion have been omitted passages deat
iuU with appeals taken in behalf of divers defendants. — Ed.

SECT. IV.] NEW YOKK, ETC. KAILKOAD CO. V. SCHUYLER. 389

facts as found by tlie court on the trial, as they appear from the plead-
ings and case, are, in substance, as follows : —

That the plaintiffs were duly incorporated by the legislature of the
State of Connecticut in 1844 ; and by an act of the legislature of
this State, passed in 1846, were authorized to extend their road into
this State, and clothed with necessary powers for conducting its busi-
ness in this State ; that tlie act of incorporation provided that the
capital stock of the company should be two millions of dollars, with
the privilege of increasing the same to three millions, to be divided into
shares of one hundred dollars each, which shares should be deemed
personal property and be transferred in such manner and in such places
as the by-laws of said company should direct ; and that the directors
should have full power to make and prescribe such by-laws, rules and
regulations, as they should deem needful and proper, touching the dis-
position and management of the stock, property', estate and effects of
the said company, the transfer of the shares, the duties and conduct of
their officers and servants, the election and meetings of the directors,
and all matters whatsoever which might appertain to the concerns of
said company.

That the original corporators failed to obtain subscriptions for stock
sufficient to organize tlie company till 184G. That on the 19th of Ma}',
1846, a board of directors was elected, who organized their body on the
same day by electing Robert Schuyler president, which office he con-
tinued to hold till his resignation thereof July 4, 1854. That on the
9th of July, 1846. the board of directors established, b}' certain by-laws
adopted by them, a system concerning the transfer of stock of the com-
pan}- and the issuing of certificates therefor, according to which stocks
were transferable only on the books of the company b\- the shareholder
or his attorne}' duly appointed, and on the surrender of the certificate
held by him when an}' certificate had been issued. The same by-laws
prescribed the form of the transfer, as follows : —

:i New York and New Haven Railroad Company.

*? No. 10,002.

^ ^ Capital $3,000,000. Shares $100 each.

- New York Office.

For value received . . . hereby assign and transfer unto . . .
all right, title and interest in . . . shares in the capital stock of
^ the New York and New Haven Railroad Companj'.
5^ New York, . . . , 18 . .

And transfer books were provided for the use of the agents, in which
transfers of this form were printed in blank ; and the by-laws also
directed that a form of stock certificate should be adopted ; and one
was adopted and invariably used . . . with a blank assignment and
power of attorney printed upon the back of it, as follows : —

390 NEW YORK, ETC. RAILROAD CO. V. SCHUYLER. [CHAP. II.

New York and New Haven Railroad Company.

No. 5,294.

Capital 83,000,000. Shares $100 each.

New York Office.

Be it known, that . . . entitled to . . . shares of the capital

stock of the New York and New Haven Railroad Company, trans-

. ferable on the books of the company, at its office, in the cit}- of

§ New York, by the said . . . or . . . attorney, on the surrender

S of this certificate.

% New York, . . . , 18 . .

o ' • ' 1 Transfer Agent.

w Know all men by these presents, that . . . for value received,
^ ha . . bargained, sold, assigned and transferred, and b}' these
B presents do bargain, sell, assign and transfer unto . . . of . . .
t shares in the capital stock of the New York and New Haven Rail-
^ road Company, standing in . . . name on the books of the said
§ company, and transferable only at its office in the city of New
g York. And ... do hereby constitute and appoint . . . true and
^ lawful attornej- irrevocable, for . . . and in . . . name and stead,
^ but to ... , use, to sell, assign, transfer and set overall or any
part of the said stock ; and for that purpose to make and execute
all necessar}' acts of assignments and transfer, and one or more
persons to substitute with like full power, hereby ratifying and
confirming all that . . . said attorney or . . . substitute or substi-
tutes shall lawfull3' do by virtue hereof.

In witness hereof . . . hereunto set . . . hand and seal, the
. . . day of ... , one thousand eight hundred and fifty . . .
Sealed and delivered in the presence of . . .

These certificates, with the blank assignment and power of attorney
upon them, were printed and bound in books with margins for entering
the time of issuing the certificate, the number of shai-es, the number
of the certificate and to whom issued ; which margins remained bound in
the books after the certificates were cut out and issued, and constituted
a memorandum of all the certificates issued ; these books were fur-
nished b}' the company to the transfer agents. A stock ledger was
also kept, in which each stockholder was credited with the shares
transferred to him and debited with those transferred by him, and in a
separate column in each stockholder's account was entered the number
of shares represented b}' each certificate issued to him and the number
of the certificate, and when a certificate was surrendered, a line was
drawn through this entr}', so that the uncancelled charges in the cer-
tificate column indicated the amount of each stockholder's stock repre-
sented by outstanding certificates, and b}' a comparison of the aggre-
gate of such chai'ges with the aggregate balances of every stockholder's

SECT. IV.] NEW YORK, ETC. RAILROAD CO. V. SCHUYLER. 391

account, any over-issue of certificates would be made to appear. These
books were not accessible to the public, and dealers in stock had no
means of information as to the title of parties proposing to dispose of
stock, except such as was furnished by the certificates above mentioned
or by the agents of tlie company.

That on the 3d day of February, 1847, Robert Schuyler was ap-
pointed transfer agent of the compan}- at the city of New York, and a
transfer office was established in that city ; other offices and agencies
were also established in the cities of Boston and New Haven. From
that time forward to and including July 3d, 1854, the entire control
and management of tlie transfer office and agency at New York was
left in the hands of said Schuyler, without any examination or interfer-
ence on the part of said company or its directors, he being also, during
the whole period, the president of the company and one of its direc-
tors (and the meetings of the board of directors appear from the
minutes to have been held at his office in New York).

Tliat in August, 1851, the board of directors resolved to fill up the
capital stock to $3,000,000, being 30,000 shares, and directed that the
same be apportioned amongst the existing shareholders as then stand-
ing on the stock ledger; such distribution was made, and the stock
(except 68 shares not taken, which remained, in part, undisposed of
till October 15, 1849) was taken by such distributees ; tliat the stock
originally subscribed, and that afterwards distributed, was, in most
cases, transferred on behalf of the company by one of the transfer
agents to the person entitled, and certificates were issued by such
agent in the form above set forth ; that during the time Schuyler was
such agent, transfers of stock were made on the books to the transfer
agents on account of the company, and such stock afterwards disposed
of by such agents ; that Robert Schuyler was a member of the firm of
R. & G. L. Schuyler ; that said firm held large amounts of the stock
of the company, and from its organization to July 3, 1864, were large
and constant dealers therein, and Robert Schuyler, as transfer agent
during this whole period, attended to transfers and issued certificates
to them in the same manner that he did of stock standing in the names
of other persons, and no restriction appears at any time to have been
put by the company upon his oflBcial action toward or with his said
firm.

On the first day of February, 1848, Robert Schuyler, as such trans-
fer agent, commenced the over-issue of certificates to his said firm, and
m tliat day such over-issue was sixty shares : and such over-issue con-
tinued thenceforth, and at all times thereafter there was over-issue of
certificates in the stock account of R. & G. L. Schuyler. On the 20th
of March, 1848, the over-issue by transfer commenced, and on that day
the number of shares transferred by R. & G. L. Schuyler exceeded the
number transferred to them by sixty sliares. Such excessive transfers
continued till January, 1849, the amount thereof fluctuating from time
tiO time as transfers wore made to and by R. & G. L. Schuyler, but the

392 NEW YORK, ETC. RAILROAD CO. V. SCHUYLER. [CHAP. IL

balance on the books of the company was against them at all times
during that period. The excessive issues of such stock so transferred
on the books of the company by R. & G. L. Schuyler, were credited to
the transferees in their respective accounts, and when retransferred
were charged in such accounts and credited to the new transferee.
These transfers were made in great part under the power of attorne}-
executed in blank by R. & G. L. Schuyler indorsed on the over-issued
certificates, by the holders thereof, and such certificates were, on mak-
ing such transfers, brought in, surrendered and cancelled. During this
period, the amount of the over-issued certificates and over-issued
transfers was not in excess of the 30,000 shares of the authorized
capital of the company.

On the 10th of January, 1849, the excessive transfers amounted to
1,191 shares, but between that day and the 31st of Januar}', shares
were transferred to R. & G. L. Schuyler by various persons, sufficient to
turn the balance of transfers in their favor. In August, 1851, when
the 5,000 additional stock was distributed, the firm of R. «fc G. L.
Schuyler had standing to their credit 854 shares ; and in making the
distribution and dividend in that month, the stocks previously trans-
ferred to the various persons holding the over-issued certificates, were
treated by the company as genuine stock ; there was at this time out-
standing certificates issued to that firm, beyond the amount of their
credits, for 1,277 shares ; that the over-issued certificates continued to
increase till October 17, 1853, at which time it had reached 7,042
shares, but the number of incoming certificates up to that time had not
exceeded the credits of R. & G. L. Schuyler by transfers made to
them, so that on the 17th of October, 1853, their account showed a
balance by transfer to them of four shares. On that day a transfer of
100 shares was charged to them, and thenceforward to and including
July 3, 1854, the balance of transfers against them continued to in-
crease until it reached 17,497 shares, and at the same date the out-
standing certificates against them amounted to 1,648 shares. All the
certificates issued, including the false and over-issued certificates, were
regularl}' entered in numerical order in the certificate books and stock
ledger, and an examination of such books would at all times have
shown what certificates were outstanding, and a comparison between the
footings of the several books would have shown whether R. & G. L.
Schuyler were or were not entitled to receive certificates.

The over-issued certificates and transfers were, in all cases in w'hich
■jdgments have been given to defendants, purchased or received by
them in good faith on the payment or advance of monev. It was an
established usage in the city of New York to make purchases of stock
and make loans thereon on the faith of such certificates, with the
assignment and power of attorne\- thereon executed in blank by the
party to whom originall}' issued, and they were transferred in the
course of business from hand to hand by delivery. It was a usage also
to take transfers of stock in the course of dealing on the books of the

SECT. IV.] NEW YORK, ETC. RAILROAD CO. V. SCHUYLER. .393

corporation without recoiviiig a certificate; and, according to the ordi-
nary mode of business, transfers were not allowed b}- corporations with-
out tlie surrender and cancellation of the outstanding certificate when
one had been issued ; and according to the usage among corporations in
New York, dealers in their stock were not allowed access to their books,
and it was not the custom for dealers to make examinations thereof.
That the stock of the New York & New Haven Railroad Company was
largel}' dealt in, in the cit}' of New York, by the delivery of certificates
and assignments in blank, and large amounts of such certificates wero
constantly in circulation, and many of them purported to be issued to R.
& G. L. Schuyler, and were signed by Robert Schuyler as transfer agent.

In many cases where valid certificates of stock had been issued to
R. & G. L, Schuyler for stock actually belonging to them, and out-
standing to their credit on the books at the time, and while such
certificates, with the usual assignments and powers of attoinev exe-
cuted in blank were outstanding in the hands of bonajide holders, the
stock was permitted to be transferred by R. Schuyler in the firm name
to other persons, who took the same for value in good faith, without
the surrender of the outstanding certificates. The rule on this subject,
as established ])y the by-laws, was generally observed, but in the case
of R. &, G. L. Schuyler and a few other persons, it was disregarded by
R. Schuyler and the clerks of his office.

That the railroad company kept no bank account for the deposit of
moneys ; that mone}' received on behalf of the company on construc-
tion account from time to time by Robert Schuylei', as president or
transfer agent, was, from time to time, deposited bj' him in the bank
accounts of the firm of R. & G. L. Schuyler, and when payments were
made by Schuyler on behalf of the company, the money was obtained by
R. Schuyler ; that large amounts were so obtained from time to time,
and frequently' from the firm of R. &. G. L. Schuyler ; that said moneys
were drawn out from time to time as needed on their checks ; that the
money so obtained b}' R. Schuyler was raised b}- the said Robert
Schuyler in the name of his said firm of R. & G. L. Schuyler indis-
crirainatel}' on genuine and spurious certificates of the stock of said
company ; but it is not found to what time such moneys continued to
be raised.

The firm of R. & G. L. Schuyler failed July 3, 1854, and R. Schuyler,
on the morning of the 4th of Juh', by letter, resigned the offices of
president, director and transfer agent, and called the attention of the
board of directors to the over-issues appearing in the books. It is also
found b^' the court that up to that time " there was no evidence of any
actual knowledge In* an}- of the other directors of an}' fraudulent acts
on the part of Schuyler in the performance of his duties as transfer
agent," and the evidence tended to establish that he stood high in the
confidence of the communit}' as a man of integrit}' and business capa-
city ; but the court further found " that a proper examination of the
books b}' the directors would have enabled them to discover the frauds

394 NEW YORK, ETC. RAILROAD CO. V. SCHUYLER. [CHAP. IL

which were perpetrated b}- Schuyler, and that the board of directors
was guilt}- of negligence in not making such examination, and in leav-
ing the entire charge and control of the transfer of shares and giving
of certificates with Schuyler without making such examinations," and
" that the plaintiffs, by their transfer agent or clerks, carelessly, negli-
gently and improperly conducted, in relation to the transfer of the
stock on the books of the company and the issuing of certificates there-
for, in the allowance of transfers of shares of stock on the books of the
company and in issuing certificates therefor, when no such shares
existed, or when such certificates were not true, and in permitting
transfers of spurious stock to be made on the books of the company
and certificates of spurious stock to be issued to persons who, in good
faith, advanced mone}' or other property thereon, and in permitting
shares of stock to be transferred to other persons than those holding
the certificates thereof without requiring a surrender of such cer-
tificates."

"That the defendants received their transfers of stock through the
acts and neglect of the transfer agent, or of the oflScers of said com-
pany, or certificates issued by the acts and neglect of the transfer agent
and officers of the company, or certificates of stock valid when issued,
but rendered valueless by the fraudulent or negligent pursuance of
transfers of such stock to subsequent bona fide purchasers without the
suiTender of the outstanding certificates ; and have been misled b}' the
acts and neglect of the transfer agent or officers of said compan}-, in
relation to such transfers and certificates, and have, in good faith, and
without any violation on their part or in their knowledge of the b}--
lavv's and rules of the company, advanced mone^' and other considera-
tions on the faith of such transfers and certificates."

Geo. F. Comstock and William Tracy., for the plaintiffs.

Chas. 0' Conor and C. A. Jlapallo, Mann & Rodman., J. Larocque,
W. Hutchins, W. H. Peckliam., Jno. 31. Buckingham and D. D.
Field, Barlow <& Kennedy., Wm. M. Foai'ts, Judali & Dickman.,
Weeks, DeForest & Foster, C. ISf. Potter, A. W. Lord, D. D. Lord,
J. S. /Stearns, Dan. Marvin, W. Rutherford, J. E. Parsons, for various
defendants.

Uavls, J.^ This somewhat summary disposition of the preliminary
points of the case leaves an open path to its meritorious questions.
some of which, however, ma}- be disposed of even more summaril}'.
One of these is the question whether the stock purporting to be created
by the false certificates and fraudulent transfers of Schuyler can be
valid stock of the corporation and become part of its capital. In the
nature of things this is impossible. A corporation with a fixed capital
divided into a fixed number of shares can have no power of its own
volition, or by any act of its officers and agents, to enlarge its capital
or increase the number of shares into which it is divided. The

^ After discussing questions as to procedure. — Ed.

SECT. IV.] NEW YORK, ETC. KAILEOAD CO. V. SCHUYLER. 395

supreme legislative power of the State can alone confer that authority
and remove or consent to the removal of restrictions which are part of
the fundamental law of the corporate being ; and hence every attempt
of the corporation to exert such a power before it is conferred, by
any direct and express action of its officers is void ; and hence
ever}- indirect and fraudulent attempt to do so is void ; for if such a
result cannot be accomplished directly by the whole machinery of the
corporate powers, it is absurd to suppose that it can be produced by
the covert or fraudulent efforts of one or more of the agents of the
corporation. . . .

Another important legal proposition in the case is so clear upon
principle, and so distinctly settled by authority, that nothing but con-
fusion can flow from its discussion. It will bear no more than plain
enunciation. A corporation is liable to the same extent and under the
same circumstances as a natural person for the consequences of its
wrongful acts, and will be held to respond in a civil action at the suit of
an injured part}' for every grade and description of forcible, malicious
or negligent tort or wrong which it commits, however foreign to its na-
ture or beyond its granted powers the wrongful transaction or act may
be. (Life and Fire Ins. Co. v. ISIechanics' Fire Ins. Co., 7 "Wend. 31 ;
Angell on Corp., §§ 382, 388, 391 ; Albert v. Savings Bank, 2 Mary.
Dec. 169 ; Goodspeed v. East Haddam Bank, 22 Conn. 541 ; Bissell v.
Michigan Southern and Northern Indiana Railroad Co., 22 N. Y. 30o-v
309, per Selden, J.; 1 Wend. Black, [note], 476; Green v. London
Omnibus Co., 7 C. B. 290 [N. S.] ; Frankfort Bank v. Johnson, 24
Maine, 490 ; Philadelphia and Baltimore Railroad Co. v. Quigly, 21
How. U. S. 209, and cases cited by Campbell, J.)

It follows, from this proposition, that if it were established in this
case that the corporation itself issued the false certificates of stock and
permitted the fraudulent transfers of spurious stock, it would be liable
to the party directly- deceived and injured by that transaction. The
incapacity to create the spurious stock would be no defence to an
action for damages for the injury. On the contrar}-, that verv inca-
pacity, since it would render the certificate or transfer a fraud and
deceit, would itself be the cause of the injur}- and the basis of re-
covery. No court would hear the corporation assert that its wrongful
act was be^'ond its chartered powers, and therefore inefl^ective to
charge it with the injurious consequences of the fraud. But in this
case the false certificates were issued and the spurious stock trans-
ferred by an officer of the corporation. A corporation aggregate being
an artificial body — an imaginar}' person of the law, so to speak — is,
from its nature, incapable of doing an}- act except through agents to
whom is given by its fundamental law, or in pursuance of it, every
power of action it is capable of possessing or exercising. Hence the
rule has been established, and may now also be stated as an indispu-
table principle, that a corporation is responsible for the acts or negli-
<rence of its agents while engaged in the business of the agency, to the

396 NEW YORK, ETC. RAILROAD CO. V. SCHUYLER. [CHAP. IL

same extent and under the same circumstances, that a na{,urai person
is chargeable with the acts or negligence of his agent ; and '• there can
be no doubt," says Lord Ch. Cranworth in Ranger v. The Great
Western R. R. Co., "that if the agents employed conduct themselves
fraudulently so that if they bad been acting for private employers the
persons for whom they were acting would have been affected b}- their
fraud, the same principles must prevail where the principal under
whom the agent acts is a corporation," (5 House of Lords Cases, 86,
87 ; Thayer v. Barlow, 19 Pick. 511 ; 4 Serg. & Rawl. 16 ; 7 Wend. 31 ;
Frankfort Bank v. Johnson, 24 Maine, 490 ; Story on Agency, sec. 308 ;
Angel & Ames on Corp. sec. 382, 388.)

This brings us to consider the propositions on which the liability of
the company to respond in damages to the ilefendants must depend.
They are either general as applicable to all of the defendants, or
special as growing out of the particular facts of some one or more of
the defendants ; and it is impracticable, without danger of injustice, to
group the cases of all the defendants together and consider them in
mass, however desirable that course might be in order to avoid pro-
lixit}'. In one general proposition an inquiry is primarily involved into
the duties concerning its stock which the corporation owed to the
public and especially to all who might become dealers therein. The
charter of the company was voluntarily sought and accepted. It
created a private trading body having in view pecuniary gains and
advantages. The legislature limited the capital and fixed the number
of shares into which it might be divided, and declared them to be
personal propert}' to be transferred in such manner and at such times
and places as the by-laws of the company should direct, and then
handed over to the directors a discretion, restrained only by the laws
of the State and the United States, to enact bj'-laws touching the dis-
position and management of the stock, the transfer of shares, the
duties and conduct of officers, " and all other matters that might ap-
pertain to the concerns of the company." These powers were sought
and granted with a view to well known and established commercial
usages. It was doubtless a matter of choice to what extent the com-
pan}' would exercise them, but the directors chose to use them in their
broadest significance. They proceeded to enact by-laws to regulate the
transfer of stock and the issuing of certificates on such transfers.
They adopted a form of transfer, of certificate and of assignment and
power of attorney indorsed thereon, and gave them every chai-acter-
istic of negotiability in their power to confer. They sought the com-
mercial centre of this continent and there established a transfer office
and agenc}', and thus gave and secured the most unbounded facilities
for dealing in the stock. Their purposes, obviously, were to lay hold
of the advantages which such facilities were sure to bring to the stock
by enhancing its monetary and convertible value. This course was
legitimate ; but it brought with it corres|)onding duties and obligations.
I cannot doubt but that upon general and long established principles of

SECT. IV.] NEW YORK, ETC. RAILROAD CO. V. SCHUYLER. 397

law, tlie corporation became bound to the exercise, in tbis branch of
its business, of such ordinary care and skill as should afford to dealers
a safe and reliable mode of acquiring title to its shares in the form of
transfers and certificates as provided by its by-laws. " The law always
imposes upon every one who attempts to do anything even gratuitously
for another, some degree of care and skill in the performance of what
he has undertaken. . . . Mere negligence, where there is no obligation
to use care, as where a man digs a pit upon his own land and leaves it
open, affords no ground of action, but where there is anything in the
circumstances to create a duty to an individual or to the public, any
neglect to perform that duty from which injury arises, is actionable."
(Per Selden, J., in Nolton v. Western R. R. Co., 15 N. Y. 444 ; Coggs
V. Bernard, Ld. Raym. 909.) . . .

I cannot, therefore, subscribe to the idea that the duties of the
plaintiffs, in respect to their stock, were limited to themselves and
existing shareholders. They extended also to the commercial com-
munit}- whose confidence and trade the plaintiffs invited, and who in
turn were entitled to good faith and fair dealing at the hands of the
company ; and the3' sprang into full vigor in behalf of every party
■who entered upon such dealing.

The next important general inquiry is into the manner in which the
plaintiffs discharged those duties at their New York agency, with a
view to determine whether their conduct has been of such a character
that the law, in behalf of innocent parties, and to prevent injustice,
will imply authorit}- in the agent to do the acts that have occasioned
the injury, on the principle of estoppel in 2)t(is. This inquiry w^as not
involved in the case of the Mechanics' Bank against these plaintiffs
(3 Kern. 599), for the facts upon which it arises were not then before
the Court, and the questions discussed did not embrace them. The
only question of estoppel considered in that case was the one arising
on the face of the certificate itself, and the learned judge who pro-
nounced the opinion was very careful to define the limits of the au-
thority as they appeared in that case, and to declare that the appoint-
ment, by its terms, did not include the acts, and that there was ''no
pretence that the authority conferred was ever enlarged by any holding
out or recognition of such acts." (3 Kern. 636.)

The doctrine of implied agency, when it arises out of negligence, I
think, has its true basis in the principle of estoppel in pais. That
principle, as said by Wilde. B., in Swan v. The North British Austra-
lasian Co. (7 Hurlst. & Norm. 603), is based on the injustice of allow-
ing a party to be the author of his own misfortune, and then charging
the consequences ui)on others, and " it all along implies an act in itself
invalid, and a person who is forbidden for equitable reasons to set up
that invalidity." The facts on which this question arises are in part
the same as those upon which the extent of Schuyler's actual agency is
to be determined.* . . . From 1848 down to 1854, all these frauds

* Here the iacts were summarized. — Ed

398 NEW YORK, ETC. RAILROAD CO. V. SCHUYLER. [CHAP. IL

were written down in tlie books of the company. . . . From 1849 to
1854, the clerks in the office knew of the over-issue of certificates. . . .
It is apparent that the use of ordinary care and diligence at any time
after March, 1848, would have disclosed that Schuyler's management
was fraudulent both as to the company and the public, and likely to
lead to the disasters that have followed upon it. It is a mistake to
suppose that his frauds commenced in October, 1853. They were
equally gross in turpitude, though not in amount, for a period of five
3'ears before that date ; and nothing but the ability of the company to
increase the capital from two and a half to three millions, has pre-
vented all excesses beyond the first named sum from falling under the
same ban of utter spuriousness. The arrangement, by virtue of which
the transfers made on false certificates before the increase of the capi-
tal became genuine stock, may have been made in ignorance ; but it
was an ignorance based on a negligence so gross that the fact becomes
as potent as though the truth had been known. It may have been in
ignorance that the company received the benefit of "large sums"
raised by Schuyler indiscriminately on genuine and spurious certifi-
cates. Charity may grant that, but equity cannot disregard the fact,
for it was a duty to be wise. It is transparent throughout the case,
that the board of directors, by passive submission or active surrender,
handed over to Schuyler the substance of all their authority relating to
their business in New York, and then for nearly seven years lay down
to sleep in supine indifference at his feet. . . . The company placed in
Schuyler's hands the very instrumentalities by which the injury was
wrought. They imposed restrictions upon their use, but they omitted
the safeguards that ordinary prudence would dictate, to discover or
prevent their abuse. A wrong which ordinary care will prevent, is in
a legal sense caused by the omission of that care where it is a duty to
use it. . . . An examination was a duty, because it was the obvious
dictate of good sense as the easiest and safest check upon the agent's
conduct. The long continued and reckless omission was therefore a
culpable negligence, without the concurrence of which Schuyler could
not have committed the frauds by which the defendants have suffered ;
for it was this omission of duty that left him with power to wield the
weapons with which the company had armed him, and therefore it may
be said to have led directly to the injurious acts. . . .

It is not in such cases one of two innocent parties who is to suffer.
The question is between an innocent and a culpable party, and, as
was said by Denio, J., in The Bank of Genesee v. The Patchin Bank,
"I see no objection in applying the principle that where a party has,
by his declaration or conduct, induced another to act in a particular
manner, he will not afterwards be permitted to deny the truth of his
admission if the consequence would be to work an injury to such other
person." (3 Kern. 316.) The question of estoppel is one of ethics
(per Bronson, J., in Dezell v. Odell, 3 Hill, 225), and is to be enforced
where, in good conscience and honest dealing, it ought to be. (Welland

SECT. IV.J NEW YORK, ETC. RAILROAD CO. V. SCHUYLER. 399

Canal Co. v. Hathaway, 8 Wend. 483.) "The principle," says Chan-
cellor Kent (2 Com. 620, note c), " that pervades the distinction on
this subject rests on sound and elevated moralitj'. There must be no
deception anywhere. The principal is bound by the acts of his agent
if he clothe him with powers calculated to induce innocent third per-
sons to believe the agent had due authority" to act in the given case."
" He who created the trust, and not the purchaser, ought to suffer."
(Note d.)

On the question of privity in any view of this case, I have no diffi-
culty. If the act of the agent can be charged home upon an}' principle,
upon the corporation, then, as was said in the Bank of Kentucky v.
The Schuylkill Bank (1 Pars. Eq. Cas. 180), " the bona fide holder of
any certificate issued by the transfer agents has a primary- and direct
claim, either to be admitted as a corporator, or if that is impracticable,
from the excessive issue of stock, to be compensated for the fraud prac-
tised upon him." To entitle the aggrieved party to sue, in such case, no
privity is necessarj', except such as is created b}' the unlawful act and
the consequential injury, because the injured party is not seeking re-
dress upon contract, but purely for the tortious act in the commission
of which the contract is an accidental incident. (Allen v. Addington,
11 Wend. 374; Thomas ?7. Winchester, 2 Seld. 397; Scott v. Shep-
herd, 3 Wils. 403 ; Gerhard v. Bates, 2 Ell. & Bl. 489 ; S. C. 20 Eng.
L. &■ Eq. 129 ; Redfield on Rail. 61 ; Kortright r. Buffalo Commercial
Bank, 22 Wend. xiM sup.)

That the Mechanics' Bank against these plaintiffs was not decided
on any question of want of privit}', we have the authorit}' of the
judge who pronounced the opinion: "We certainl}-," he says, "did
not put our judgment upon the ground that the plaintiffs were not in
privity of dealing with the defendants by reason of the non-negotiable
character of the certificates, and, therefore, could not sue for fraud."
(Farmers' and Mechanics' Bank v. Butchers' and Drovers' Bank, 16
N. y. 151.)

I am, therefore, of opinion that the plaintiffs are estopped by the
facts and circumstances of this case, to deny the authorit}' of Schuyler
to do the acts from which tlie injurv to the defendants has arisen.

But conceding that the whole question of this case is governed by
the law of principal and agent, it becomes of grave significance to
ascertain the scope and extent of the powers conferred on the agent.
Herein, I think, the case essentially differs from that of the Mechanics'
Bank. (3 Kern. 399.) The question of that case is stated b}' Com-
stock, J., in 16 N. Y., at pages 154, 155, with succinctness and accur-
acy. He says : "In that case, the transfer agent of the defendants'
corporation was authorized to sign and issue certificates of stock on a
transfer from one sliareholder to another upon the books, and on the
surrender of the previous certificates. The agent, for his own pur-
poses, signed and issued certificates to a large amount where there had
been no such transfer or surrender. These unauthorized and spurious

400 NEW YORK, ETC. RAILKOAD CO. V. SCHUYLER. [CHAP. II.

instruments were in form precisel}- like tliose that were genuine and
authorized. Trusting to tlieir false appearance, the plaintiffs took one
of them b}' transfer and advanced money upon it, which they recovered
in the New York Superior Court. We held they could not recover,
and reversed the judgment, placing our decision prominently upon the
ground that the acts of the agent were not within the real or apparent
scope of the power delegated to him."

It now appears that the agent, in addition to the power thus stated,
had authorit}' also to issue certificates in precisely' the same form, to the
original subscribers for the stock, and to some extent did do so ; that
he had authorit}- to dispose of the stock of tlie compan}- not taken by
the original subscribers (of which there was a large amount), and issive
certificates in the same form to the purchasers ; that he had authority
to dispose of certain forfeited shares, and in such case issue like certifi-
cates ; that he had authority to receive transfers to himself of stocks
on behalf of tlie company-, and transfer the same to purchasers and
issue like certificates to them ; that before the increase of the capital
to 30,000 shares, he did issue to his own firm a large number of
false certificates which became the basis of transfeis on the books to
third parties, and by some arrangement were absorbed into the en-
larged capital as genuine stock ; that he acted to some extent as
financial agent of the company, and through his firm raised large
amounts, " indiscriminate!}', on genuine and spurious certificates of
stock," which were paid out on the check of the firm on behalf of the
compan}' and on its construction account ; that to him was intrusted
the keeping of all the stock accounts of the compan}' and its dealers
at the New York office, and in those accounts he entered all his trans-
actions, both false and genuine ; that the books were kept closed to
dealers ; that his management of the affairs of the office, and of all
these various matters, was never investigated or questioned.

It is in all these facts that we are now to seek for " the real or
apparent scope of the power delegated to him." As we descend from
the sharp promontory of the Mechanics' Bank case to this broad plane
of powers and their mode of use, we stand amongst new and far differ-
ent lights and shadows. We find ourselves quite unable to sa}', with
tlie able jurist in that case, " He (Schuyler) had no power to sell stock
at all, and none to issue certificates except as incidental to a sale
between existing stockholders, and then it depended on the condition
precedent of a transfer on the books and a surrender of a previous
certificate for the same .stock." Nor to say, " His appointment in its
ver}- terms, which all dealers are supposed to have been acquainted
with, did not include his acts, and there is no pretence that it was ever
enlarged by any holding out, or recognition of his acts."

When his certificate, regular in form in all respects, is offered in the
market, the bu3'er is not able to refer it to the narrow restrictions of
the b\'-law, for how does it appear that it is not one issued to an origi-
nal subscriber, where there was no transfer to be made, and no prior

SECT. IV.J NEW YORK, ETC. RAILROAD CO. V. SCHUYLER. 401

certificate to be surrendered ; or that it is not one issued to a purchaser
of the original stock which Scliuyler was empowered to sell and certify
in this manner ; or that it is not of stock that has been transferred to
the agent on account of tlie company and which he was likewise
authorized to sell ; or that it was not some of the forfeited shares which
he was directed to sell and certify ; or that it was not of the kind
which, by " some arrangement," is absorbable into the capital as genu-
ine, even if it be in fact spurious ; or that it is not issued to raise
money for the benefit of the construction fund of the company ; or that
it is not of the spurious kind which the company have heretofore
allowed to be cured by a subsequent acquisition of stock by the Schuyl-
ers, and a transfer thereafter under the power.

Whether it does not belong to some one of these classes there are no
earthly means of ascertaining save b}- the representation of the agent.
The books are sealed ; but if open and most thoroughly investigated
they would not necessarily negative the power to issue for some of the
purposes for which authority had been given, directly or by recogni-
tion ; for even if run down to absolute spuriousness it is still open to
sa}', this is of the kind of spurious certificates upon which the com-
pany raise money for their construction accounts, or the kind which
they legitimatize b}' subsequent arrangements of the capital ; or the
kind which, by the custom of dealing becomes good, if a transfer be
made under it at a moment when the Schuyler firm happens to have so
much stock to its credit on the books. And the accounts for seven
3-ears show that all these kinds are treated on the same footing as
genuine shares.

It is a well recognized branch of the law of principal and agent,
that without any express or special appointment, an implied agency
may arise from the conduct of a part}-. (Stor}' on Agency, § 54.)
" Where a person has recognized a course of dealing for him by an-
other or a series of acts of a particular kind, an implied agenc}' is
thereby constituted to carry on the same dealing or to do acts of the
same character. . . . There ma}' be seeming contradictions of the fun-
damental doctrine that a principal is bound only by such acts of his
agent as he has duly authorized. This presumption or implied agency
is one of these, because a man may have accepted supposed acts which
he never authorized, and so be bound as to third persons by similar
acts." (Per Comstock, J., 16 N. Y. 145, 146.)

There is nothing gained to the plaintiffs by the fact that the certifi-
cates are made to the firm of R. & G. L. Schuyler, for so were all those
which, prior to October, 1853, became good by a transfer when that firm
happened to be in credit on the books of the company ; so were those
used to raise money for construction ; and so of those which went in
under the increased capital. It is a general rule that an officer or agent
is not to be permitted, under a general power, to certify in his own
favor. (Claflin v. The Farmers' Bank, 25 N. Y. 293.) ' But in this
case that rule is not applicable, for it clearly appears that from the

402 NEW YORK, ETC. RAILROAD CO. V. SCHUYLER. [CHAP. IL

outset this firm were very heavy dealers in the stocks of the company,
that its business was all conducted at this agencj', and that Robert
Schu3ler at all times certified to it as to other dealers. The long
acquiescence of the company in this practice, and its actual ratification
in some of the cases above mentioned disarm this objection of all force.
(Ang. & Ames on Corp. 216 ; and see Bradl}- v. Richardson, 2 Blatch.
C. C. R. 343 ; S. C. 23 Vt. 720 ; Story on Agency, § 54.)

In this view of the extent of the authority with which Schuyler was
clothed b}' the company, either by direct appointment or by recognition
and ratification, or by actual enjoj^ments of the fruits of his acts, or by
long acquiescence therein from which a presumption or implied agenc}*
arises, I have come to the conclusion that the issuing of the certificates
by him must be held to be within the scope of the real and apparent
authority which he possessed ; and the remed}' of the defendants is not
prejudiced by the fact that he used and intended to use the avails for
his own purpose. In short, thej' stand precisely in respect to the
remedy where thej' would if the board of directors had issued the same
certificates in fraud of their powers under the law, and obtained the
defendants' moneys thereon.

But these views do not dispose of a question that has been argued in
this case with an elaboration and power seldom equalled in a court of
justice. From the manner in which the decision of the judges is stated
in the Mechanics' Bank case, it is diflScult to tell what precise points
were designed to be passed upon by the court. It is open to conjecture
that the case maj' have passed off on the ground of want of privity
between the plaintiflJ's and defendants, as was intimated by Selden,
J., in The Farmers' & Mechanics' Bank v. The Butchers' & Drovers'
Bank (16 N. Y. 142), or on the ground, as suggested by H. R. Selden,
J., in Griswold v. Haven (25 N. Y. 598), " that Kyle to whom the
certificate issued, being prny to the fraud, had of course no claim
against the company', and that his assignees could have no greater
rights than himself;" or upon the mistaken idea that the Court of
Errors, in reversing The North River Bank v. Aymar, has settled the
law adversel}' to the opinion of the Supreme Court in that case.

But whatever may have been the views of other members of the
court, there is no mistaking the ground on which the judge who pro-
nounced the opinion intended to put the liability of a principal for the
acts of an agent. It is, in brief, that a principal is bound only by the
authorized acts of his agent. The proposition involved was fairly
put b}- the learned judge in this form : " Suppose an agent is author-
ized bv the terms of his appointment to enter into an engagement, or
series of engagements, on behalf of his principal, and while the ap-
pointment is in force he fraud ulentl_y makes one in his own or a stran-
ger's business, but in the form contemplated by the power, and which
he asserts to be in the business of his empWer bj' using his name in
the contract, can the dealer rel}' upon that assertion, or is he bound to
inquire and to ascertain at his peril whether the transaction is not only

SECT, IV.] NEW YORK, ETC. KAILKOAD CO. V. SCHUYLER. 403

in appearance but in fact within the authority? Acconliiig to the
decision of the Supreme Court of this State, in the case of The North
River Bank v. Aymar (3 Hill, 'lij2), he can." The judge then pro-
ceeds to show that the case cited had been reversed by the Court of
Errors ; and then to discuss the question with his own clearness and
vigor, reaching a conclusion which he expresses in these words : " The
appearance of the power is one thing, and for that the principal is
responsible. The appearance of the act is another, and for that, if
false, J tiiiuk the remedy is against the agent only. The fundamental
proposition, 1 repeat, is, that one man can be bound only by the
authorized act of another. He cannot be charged because another
holds a commission from him and falsely asserts that his acts are
within it.

The counter proposition was again stated by Selden, J., in The
Farmers' & Mechanics' Bank v. The Butchers' & Drovers' Bank, in
this form : " It is, I think, a sound rule that when a party dealing
with an agent has ascertained that the act of the agent corresponds in
every particular in regard to which such part}' has or is presumed to
have any knowledge with the terras of the power, he ma}- take the
representation of the agent as to any extrinsic fact which rests peculi-
arly within the knowledge of the agent, and which cannot be ascer-
tained b}- a comparison of the power with the acts done under it.

Manifestly, here is an "irrepressible conflict" between these propo-
sitions, and we are called upon to determine which expresses the
settled law of this State. I think the problem is solved whenever the
question whether the decision of the Supreme Court in The North
River Bank v. Aymar (3 Hill 2G2), is authoritative as law, is answered ;
and for this, I have the emphatic assent of Comstock, J., as above
quoted. That case stands altogether upon the doctrine of agenc}'.
The bank held the power of attorney under which the agent acted.
The paper, on its face, notified the bank that it was made by the agent.
The power, by express words, limited the authority to notes made in
the business of the principal. The character of the paper was, there-
fore, of no moment on this point, for its negotiability could not shut
out a question which arose on the face of the instruments. (See per
Selden, J., in Griswold v. Haven, 25 N. Y. 601, and per Comstock,
16 N. Y. 153, 154, 155.) The paper, in fact, was not made in the
business of the principal. The qnestion was, where the peril of that
fact rested ; and its solution altogether depended upon the question,
was the bank " bound to inquire and to ascertain at its peril whether
the transaction was not only in appearance but in fact, within the
authority ? " The court appreciated the point, and therefore discussed
and decided the question distinctive!}*, on the law of principal and
agent.

The further history of that case is shown by Judge Comstock, in his
opinion in The IMechanics' Bank case (3 Kern. 633), and more fully in
his dissenting opinion in The Butchers' and Drovers' Bank case (16

404 NEW YORK, ETC. RAILROAD CO. V. SCHUYLER. [cUAP. IL

N. Y. 153, 154). As The Mechanics' Bank case left The North River
Bank case, the latter would be tieeiiied not law. But the same question
arose in The Farmers' and INIechanics' Bank v. The Butchers' and
Drovers' Bank, and it became essential to determine whether the re-
versal b}' the Court of Errors of The North River Bank case had
settled the law adversely- to the decision of the Supreme Court Judge
Comstock earnestl}' insisted that it had (16 N. Y. 154;, but in this he
stood alone. Selden, J. (at page 138), assigned reasons for holding
the question still open for examination, and after a very full examina-
tion declared that the case was properlj' decided by the Supreme Court.
Denio, Ch. J., and Brown, J., delivered opinions, both agreeing with
Selden, J., in approving the decision of the Supreme Court. "1 am
clearl}- of opinion," said Denio, Ch. J., "that the case of The North
River Bank i\ A3-mar, was correctl}' adjudged in the Supreme Court.
If the Court of Errors laid down a different rule in reversing that
judgment, the}- ran counter, as I think 1 have shown, to a strong
course of adjudication in that court and in the Supreme Court, and
overturned a legal position which was then well established in this
State, and has since been repeatedly acted upon." In Griswold v.
Haven (25 N. Y. 595), the same question arose ; and upon the precise
point now under consideration — whether the decision of the Supreme
Court in The North River Bank v. Aymar, is sound law — I understand
there was no dissent from the opinion of H. R. Selden, J., which held
it to be so. In The Exchange Bank v. Monteath (26 N. Y. 505), the
question of its authoritv again ver}' sharply arose. When that case
was first at the bar of the General Term, that court followed The
North River Bank v. Aymar, as reported in 3 Hill, regarding it as a
decisive authority-. After a new trial, the case came again to the Gen-
eral Term, but in the mean time the opinion of Comstock, J., in The
Mechanics' Bank case, had been published. The court regarded that
as establishing a different doctrine, and as showing also that The North
River Bank case had been overruled by the Court of P^rrors. It, there-
fore, reluctantly followed what it regarded as the later authority. But
this court reversed the General Term, and declared that the doctrine
of the case of The North River Bank v, Aymar, must now be regarded
as established on an impregnable basis. " It is," said Davies, J.,
*' well sustained by authority, sound reasoning and well established
principles, and it should be firmly adhered to b}- the courts." If ever
a case, discrowned by reversal, was lifted to its feet and restored to
authority by adjudication. The North River Bank v. Aymar has been ;
and its vindication is all the more signal because of the ability
with which its chief antagonist has conducted the remarkable warfare
against it.

We have already seen what principle was involved in that ease, and
it is impossible to escape the conclusion that the law of this State, as
settled b}' adjudication at this day, is, as put by H. R. Selden, J., in
Griswold v. Haven, "That where the authority of an agent depends

SECT. lY.] NEW YOKK, ETC. RAILROAD CO. V. SCHUYLER. 405

upon some fact outside the terms of his power, and which, from its
nature, rests particularly within his knowledge, the principal is bound
by the representation of the agent, although false, as to the existence
of such fact." The contrar}' rule, though asserted with confidence and
vindicated with great force in the case of The Mechanics' Bank, was
not necessarily adopted b}- the court, and that case does not so deter-
mine. It ma}' with confidence be asserted that all the cases in this
State, both before and since, lay down a diflferent rule from that sup-
posed in The Mechanics' Bank case, to have been established by the
Court of P^rrors ; and so do the elementary' writers upon whom we are
accustomed to rely. (Stor}' on Agency, 452 ; Pale}' on Agency, by
Lloyd, 294, 301, 307; Bacon Abr., Tit. Master and S., K. ; 2 Kent
Com. 620, notes, 1 Blk. Com. 432.) It were long, b}- quotation, to
show that the cases just noticed necessaril}' rest on this doctrine. A
short allusion to their facts must suffice. The condition of the author-
ity in The North River Bank v. A3'mar, was that the paper should be
made in the business of the principal. In The Butchers' and Drovers'
Bank case, that the drawee should have funds in deposit enough to pay
the check. In Griswold u. Haven, that the grain for which the receipt
was given should actually' have been received. In Exchange Bank v.
Monteath (so far as it rested on a question of agency), that the drafts
should be for the use and benefit of the defendant's line of boats. In
each of these cases, the extrinsic fact which constituted the condition
of the authority' was peculiarly within the agent's knowledge, and was
necessaril}' represented to exist by the execution of the agent's powers.
It might or it might not be discovered by inquiry. So in this case, in
the narrow view in which we are now considering it, the condition upon
which the agent could issue the certificate was, a transfer in the books
and the surrender of a previous certificate, if any had before been
issued. These facts are wholly extrinsic and peculiai'ly within the
know'ledge of the agent, as part of the special duties to be attended to
by him, and were represented by him to exist by the certificate itself.
I can see no shade of difllerence between the question in this case and
in those cited, and which seems to me to settle the law. The rule
which governs this class of cases, in my judgment, rests upon a sound
principle. As was said by Selden, J., in Griswold v. Haven, "The
mode in which the liability is enforced in all these cases, is by estoppel
in pais. The agent or partner has in each case made a representation
as to a fact essential to his power, upon the faith of which the other
party has acted, and the principal or firm is precluded from contro-
verting the fact so represented." It goes back to the celebrated aphor-
ism of Lord Holt, in Hern v. Nichols (1 Salk. 289), "For seeing
somebody must be a loser by this deceit, it is more reason that he that
employs and puts a trust and confidence in the deceiver, should be a
loser than a stranger," or as more tersely expressed by Ashurst, J.,
in Lickbarrow v. Mason (2 T. R. 70), " Whenever one of two innocent
parties must suflTer by the acts of a third, he who has enabled such

406 NEW YORK, ETC. RAILROAD CO. V. SCHUYLER. fcHAP. IL

third person to occasion the loss must sustiun it." (Story on Part.
§ 108, and authorities there cited.) In truth, the power conferred in
these cases, is of such a nature that the agent cannot do an act appear-
ing to be within its scope and authority, without, as a part of the act
itself, representing expressly or by necessary implication, that the con-
dition exists upon which he has the right to act. Of necessity' the
principal knows this fact when he confers the power. He knows that
the person he authorizes to act for him, on condition of an extrinsic
fact, which in its nature must be peculiarly within the knowledge of
that person, cannot execute the power without as res gestae making the
representation that the fact exists. With this knowledge he trusts him
to do the act, and consequent!}' to make the representation which,
if true, is of course binding on the principal. But the doctrine claimed
is that he reserves the right to repudiate the act if the representation
be false. So he does as between himself and the agent, but not as to
an innocent third part}^ who is deceived b}' it. The latter may answer,
j-ou intrusted 3'our agent with means elfectually to deceive me by
doing an act which in all respects compared with the authority you
gave, and which act represented that an extrinsic fact known to your
agent or 3'ourself, but unknown to me, existed, and 3'ou have thus
enabled your agent, by falsehood, to deceive me, and must bear the
consequences. The very power ^'ou gave, since it could not be exe-
cuted without a representation, has led me into this position, and
therefore you are estopped in justice to deny his authority' in this case.
By this I do not mean to argue that the principal authorizes the false
representation. He onl}' in fact authorizes tlie act which involves a
representation, which, from his confidence in the agent, he assumes
will be true ; but it may be false, and the risk that it may he takes
because he gives the confidence and credit which enables its falsity
to prove injurious to an innocent part}'. I have alreadj' sliown how
this principle in many cases sustains liabilit}' after all actual authorit}'
has been withdrawn, as between the principal and parties who have a
right to infer that the authority continues.

The contrary doctrine would be singularly' inconvenient, if not ab-
surd, in practice. For instance, under a general power to draw bills,
which means, of course, only in the business of the principal, no party
could safel}' take a bill drawn by the agent without pursuing the in-
quiry whether it was drawn in such business to extremes. If the peril
is on the part}' to whom the bill is given, nothing shoi't of personal
application to the principal himself can relieve it, for nowhere short of
that is absolute certaint}'. Ever}' intermediate appearance or represen-
tation may be false or deceptive, and the rigid rule of actual authority
will be satisfied with nothing less than absolute verity. So, then, the
general power carries no safety whatever, since each bill made under it
must be verified as to extrinsic facts by resort for perfect security to
the principal himself.

Or to bring the illustration nearer to this case : It is claimed that

BECT. IV.] NEW YORK, ETC. KAILKOAD CO. V. SCHUYLER. 407

every receiver of a stock certificate, executed by an agent, luiist verify,
at liis peril, the extrinsic facts tliat a transfer of tlie stock has been
made and the former certificate surrendered. But how? If he go to
the board of directors they can only refer him to the transfer agent oi
the books kept by him, for these are alone their sources of information,
If he resort to the books they are at best but other representations
of the agent which, if they in form show a transfer, may still be de-
ceptive, and nothing but a transfer of actual stock will answer the
condition. He must therefore trace the lineage of the stock repre-
sented B^ the certificate to some point behind which no " strain upon
the pedigree " will enable the corporation to bastardize the issue. Such
a rule would be vastly detrimental to the business interests, both of
corporations and of the public.

It would be far better to establish a rule that no man shall take an
instrument made by an agent without first having the principal's cer-
tificate that it is genuine and authorized ; and even this would be
impracticable in corporations, for every new certificate, being another
act of an agent, would only open a new circuit of inquiry. But such
is neither the policy nor good sense of the law.

It is a mistake to suppose that the conventional rule of commercial
negotiability has anything to do with this question, except in cases
where the paper carries no notice on its face that it is made by some-
body assuming to be an agent. That rule stands upon an arbitrary doc-
trine of the law merchant and not at all upon any principle of estoppel.
It extends only to instruments which usage or legislation has brought
within it ; and its substance is, that by force of the arbitraiy rule the
possessor of such negotiable instrument has power to give by delivery
to a bona fide purchaser for value, a good title notwithstanding any
defectiveness in his own. Hence, under it a finder or a thief may con-
fer such title with none in himself, not because the loser is estopped
b}' his misfortune from asserting his rights, but because from real or
supposed commercial necessities, "^ ita lex est scn'pta." But it is a
fixed requisite of the rule that the bu^er shall be for value without
notice, and therefore nothing that gives notice on its face is, in that
particular, within the rule. So an instrument that shows on its face
that it is made b}- one man for another, at once warns the taker to
inquire if the assumed agent be authorized, and that question becomes
one independent of the arbitrary rule of the law merchant and depend-
ent on the doctrines that govern the law of principal and agent. (Att-
wood V. Munnings, 7 B.' & C. 278 ; Fearn v. Felica, 8 Scott, N. C.
241.)

I concur, therefore, with Judge Selden, when he asserts that in no
respect, except as it touched the question of privitj^ of contract, was
the negotiability of the paper of any importance in the case of The
North River Bank v. Aymar (25 N. Y. 602). In that case it appeared
on the face of the paper that it purported to be made by an agent. A
different rule as to the effect of negotiability may well obtain where the

408 NEW YORK, ETC. RAILROAD CO. V. SCHUYLER. [CHAP. IL

paper is negotiable within tlie law merchant, and bears on its face no
notice whatever that it is made by some party other than the one it
pui-ports to charge, as where it is made in a firm name, or in the form
and by the officers, through and by which a corporation can by law
issue its authorized evidences of debt.

We have already seen how far privity is essential in actions of tort.
(Redfield on Railways, 61 and note ; Gerhard v. Bates, 20 Eng. L. &
Eq. 129, &c.)

I shall not inquire how far the English cases, and especiall;^' the lead-
ing case of Grant v. Norway (10 C. B. 665), so much relied upon, may
be in conflict with the law of this State. Both the Judges Selden
have sought to show that Grant v. Norway is distinguishable from the
cases under their consideration, and I will only add that if they did not
succeed in pointing out the distinction, and the case really stands
in conflict, so much the worse for that case.

We may come back, therefore, to the solid ground of The North
River Bank v. Aymar, regarding it only as shaken down to greater
firmness by the severe ordeal of The Farmers' and Mechanics' Bank
case, and with confidence declare the true doctrine of this branch of the
law of agency to be, that where the principal has clothed his agent
with power to do an act resting upon the existence of some extrinsic
fact necessarily and peculiarly within the knowledge of the agent, and
of the existence of which the act of executing the power is itself a rep-
resentation, a third person dealing with such agent in entire good faith
pursuant to the apparent power, may rely upon the representation, and
the principal is estopped from denying its truth to his prejudice. In
Griswold v. Haven, this rule was distinctly settled. The dissenting
opinion touched only the right to maintain the form of action brought
in that case, but a majority of the court held that the representation of
the agent not only charged the principals, but estopped them from
den3'ing the actual possession of the wheat asserted to be in store, so
as to defeat an action of trover or replevin to recover the property. In
this view I see no ground upon which the plaintiffs can, in this case, be
permitted to deny that Schuyler was acting witliin the scope of his
authority in issuing the false certificates ; and the}' are therefore to be
treated as though issued by the board of directors. Considering them
of that character, the question of estoppel, as it arises upon their face,
that is, whether the corporation is estopped from saying that they were
not genuine representatives or muniments of title to stock, was rightly
disposed of by the opinion of Comstock, J., in The Mechanics' Bank
case. And it was in that view, that is, regarding them as instruments
capable, upon some notion of estoppel, of being specifically enforced,
that he alluded to the supposed want of privity in the estoppel itself
between the holder in that case and the corporation ; but he quite dis-
tinctly declined to pass upon the question of the liability of the cor-
poration if the certificate was to be treated as the act of the board.
But the liability of the corporation for a wrongful injury growing out

SECT. IV.] NEW YOEK, ETC. UAILROAD CO. V. SCHUYLER. 409

of an act of the directors in excess of tlie chartered powers, was after-
wards vindicated and settled in Bissell v. The Michigan Southern &
Northern Indiana R. R. Co. (22 N. Y. 258), and it stands well upon
the grounds of cither of the learned opinions in that case.

It was established by the Court of Chancery in England a centur}'
ago, in Ashby v. Blackwell (2 Eden, 299). . . .

I shall proceed, as briefly as possible, to consider the cases of de-
fendants, who are parties to this appeal, in the light of the different
facts found in them ; and for that purpose shall classify the defendants
so far as practicable.

First. There is a class of defendants who were purchasers of stocks
in good faith and for value, of persons to whose credit such stock stood
on the books of the company at the transfer office at the time of such
purchase, and who held certificates in due form therefor. On such
purchases, the outstanding certificates were surrendered, transfers
made on the books in due form, and new certificates issued to the pur-
chaser, who thereupon paid the purchase price to his vendor. These
certificates are adjudged spurious because their origin is found to have
been, more or less remotely, in over-issues hy Robert Schuyler to his
firm.

Second. Another class are defendants who made purchases of par-
ties who had credit on the books of the company for the stock sold,
but no certificates, and who, on the sale, transferred the stock on the
books in due form to the purchasers — who, in some instances, took
certificates and in others not. In some cases in this class, it is proved
that the money for the stock was not paid till after inquiry at the office
showed that the transfer had, in fact, been made.

Third, Another class is of parties who loaned money upon certifi-
cates held by the borrowers, to whose credit the stock stood on the
books of the company, and who at the time of making such loan or
subsequenth', surrendered the certificate and transferred the stock on
the books, and took out new certificates in due form.

•The stock held by these two classes has been also adjudged spuri-
ous, because it originated in some like over-issue of the transfer agent.

It will be seen that in these cases where new certificates have been
issued by the transfer agent, the letter of his authority in its most
limited sense has been pursued. The extrinsic facts upon which the
power of the agent depended, apparently existed. Stock stood on
the books to the credit of the party making the transfer. The transfer
was made in due form. The outstanding certificate was surrendered
and cancelled, and thereupon the new one issued. To all appearance
the act was within the real and apparent scope of the authority, and
ever}' condition of the power fully complied with. But a judicial inves-
tigation has shown that this apparent stock credited on the books, was
not real. That at some remote period, it had its origin in a fraudulent
over-issue. The question is, does the peril of that fact rest on the
buver? I think it does not; but lam constrained to admit, that if

410 NEW YORK, ETC. RAILROAD CO. V. SCHUYLER. [CHAP. IL

the position of the appellants' counsel be sound, I do not see why it
must not. Tlie question is only carried back a step farther ; that is, to
the right of a dealer to buy stock, relying on the books of the company
as evidence of the ownership of his vendor. But the books are them-
selves onh' representations made by agents, and by no means conclusive
in ever}' sense. The credit is a deceptive one, because the stock has
no real existence, and if the condition of the power be that there must
be an actual transfer of stock, an unreal transfer, however complete its
resemblance to reality, does not answer the condition. No matter to
what disastrous consequences the rule may lead, it cannot be satisfied
without holding that the peril that all appearances of genuineness shall
be founded in absolute fact, constantly rests upon the dealer.

The same tiling is true of tlie transfers upon the surrender of certifi-
cates, where no certificate had issued. Unless we are to hold the
compan}- to the dut}- of keeping correct books, so that those who refer
to and rely upon them shall be protected, there is no remedy. The
corporation ma}' mislead the community until thousands are ruined,
and be itself entirely protected by being able to say, our agents had no
authority to give credits for stock where none existed. The evidence
to a corporation of its stockholders is its stock ledger, or the books
kept for the express purpose of determining its stockholders. (Gray v.
Portland, 3 Mass. 385, per Sewall, J.)

Dealers are entitled to rel}' upon that evidence. As was said by
Best, Ch. J., in Davis v. The Bank of England (3 Bingham, 393), "If
this be not law, who will purchase stock, or who can be certain that the
stock he holds belongs to him ? It has ever been an object of the
legislature to give facility to the transfer of shares in the public funds.
This facilit}' of transfer is one of the advantages belonging to this spe-
cies of property, and this advantage would be entirel}' destroyed if a
purchaser should be required to look to the regularity of the transfer,
to all the various persons through whom such stock had passed. In-
deed, from the manner in which stock passes from man to man, from
the union of stocks bought of different persons under the same name,
and the impossibility of distinguishing what was regularly transferred,
from what was not, it is impossible to trace the title of stock as you
can that of an estate. You cannot look further, nor is it the practice
even to attempt to look further than the bank books for the title of the
person who proposes to transfer to you."

I take it to be sound law, that if A., who is about to sell propert}- to
B., and take his check on a bank, applies at the counter of the bank
to the proper officer, who informs him that B. has the funds in deposit,
and his check will be good, the bank will not be permitted to deny the
truth of the assertion after A. has acted upon it, on the ground that its
oflScer had no authority to keep any but correct books. But these par-
ties stand upon a still better footing, for tliey have relied not merely
upon a certificate issued by the agent, but upon the records of title to
stock kept b}- the company, which were the only other existing sources

SECT. IV.] NEW YORK, ETC. RAILROAD CO. V. SCHUYLER. 411

of information. They have there found the stock they proposed to
purchase credited to the party offering it for sale, in the stock ledger of
the corporation, wliich is the best evidence of the existence of all
genuine stock transferable at this office. Is it to be tolerated that the
responsibility for the correctness of these books rests altogether upon
dealers who have no control over them ?

The defendants who have been led into loaning their money upon
certificates and transfers, held and made by parties who had like
credits on the books, and who apparently complied with every con-
dition, stand on the same footing with those just noticed. Public
policy and the true interests of all parties concerned, as well as plain
principles of equity and justice, require that the corporation make good
the losses the}' have sustained.

There is still another class whose claims arise upon other facts, and
rest on different principles. It is composed of those defendants who
have received certificates representing actual and genuine stock of the
company, but whose certificates were rendered valueless b}- a subse-
quent transfer to bona fide purchasers of the same stock, by the part}'
to whose credit it stood on the books.^ . . . It is claimed , . . that the
transfer was made or permitted b}' an agent of the compan}', who acted
in excess of his powers. Clearly it was the duty of the transfer agent
to have required the surrender and cancellation of the outstanding cer-
tificates. That was one of the ver}- duties he was put there to perform.
... It is the ver}' ground of the company's liability', that its agent
failed to do the dut}- enjoined upon him. The parties were dealing all
the while in the actual and legitimate stock of the compan}-, and the
agent was called upon to do an act within the exact scope of his
authority. . . . "-Vor where a trust," says Lord Holt (12 Mod. 472,
490), " is put in one person, and another, whose interest is intrusted to
him, is damnified by the neglect of such as that person employs in the
discharge of that trust, he shall answer for it to the party damnified."
Nor does it matter that the agent fraudulently neglected his duty for
his own private gain ; for then arises the exact case for the application
of Lord Holt's rule, that when one of two innocent persons must suffer
from the fraud or misconduct of a third, he who has reposed a trust or
confidence in the fraudulent agent ought to bear the loss. . . .

Dexio, C. J., Wright, Potter, and Brown, JJ., concurred with
Davis, J. Judgment affirmed?

1 The opinion as to this class of claims has been abbreviated by omitting passages
pertaining to the law of Corporations. — Ed.

2 Other over-issue cases are : Bridgeport Bank v. N. Y. & N. H. Railroad Co., 30
Conn. 231 (1861); Western Maryland Railroad Co. v. Franklin Bank, 60 Md. 36
(18S2) ; Moores v. Citizens' National Bank, 111 U. S. 1.56 (1884) ; Shaw v Port Philip
Gold Mining Co., 13 Q. B. D. 103 (1884); Allen v. South Boston Railroad Co., 150
Mass. 200 (1889); Hill v. Jewett Publishing Co., 154 Mass. 172 (1891). — Ed.

412 BARWICK V. ENGLISH JOINT STOCK BANK. [CHAP. IL

BARWICK V. ENGLISH JOINT STOCK BANK.

Exchequer Chamber. 1867.

[L. R. 2 Ex. 259.]

The cause ^ was tried before Martin, B., at Westminster, on the
15th of June, 1866 ; and on the evidence given for the plaintiff,
the substance of which is fully stated in the judgment of the Court, the
learned Baron ruled that there was no evidence to go to the jury in
support of the plaintiffs case, and accordingly directed a nonsuit, but
signed a bill of exceptions setting out the evidence.

JBwtcn, Q. C. (IIuddlesio7i, Q. C, and Griffits, with him), for the
plaintiff.

Jfellish, Q. C. ( Watkin Williams with him), for the defendants.^

Sroxon, Q. C, in reply.

The judgment of the Court (Willes, Blackburn, Keating, Mel-
LOR, Montague Smith, and Lush, JJ.) was delivered by

Willes, J. This case, in which the court took time to consider
their judgment, arose on a bill of exceptions to the ruling of m}- Brother
Martin at the trial that there was no evidence to go to the jury.

It was an action brought for an alleged fraud, which was described
in the pleadings as being the fraud of the bank, but which the plain-
tiff alleged to have been committed b}' the manager of the bank in the
course of conducting their business. At the trial, two witnesses were
called, first, Barwick, the plaintiff, who proved that he had been in the
habit of supplying oats to a customer of the bank of the name of
Davis ; and that he had done so upon a guarantee given to him by the
bank, through their manager, the effect of which probably was, that the
drafts of the plaintiff upon Davis were to be paid, subject to the debt
of the bank. What were the precise terms of the guarantee did not
appear, but it seems that the plaintiff became dissatisfied with it, and
refused to supply more oats without getting a more satisfactorj' one ;
that he applied to the manager of the bank, and that after some conver-
sation between them, a guarantee was given, which was in this form :

" Dear Sir, — Referring to our conversation of this morning, I beg
to repeat that if 30U sell to, or purchase for, J. Davis and Son not
exceeding 1000 quarters of oats for the use of their contract, I will
honour the cheque of Messrs. J. Davis and Son in your favour in pa^'-
ment of the same, on receipt of the money from the commissariat in
payment of forage supplied for the present month, in priorit3' to any
other payment, except to this bank ; and provided, as I explained to

^ The statement of the pleadings has been omitted. — Ed.

2 In the course of this argument, Willes, J., said : " I should be sorry to have it
supposed that Cornfoot v. Fowke, 6 M. & W. 358, turned upon anything but a point
of pleading." And he referred to Com. Dig., Action upon the Case for Deceit, B. —
Ed.

SECT. IV.] RARWICK V. ENGLISH JOINT STOCK BANK. 413

3'ou, that the}', J. Davis and Son, are able to continue their coutiacts,
and are not made bankrupts.

(Signed) " Don. M. Dewar, Manager."

The plaintiff stated that in the course of conversation as to the
guarantee, the manager told him that whatever time he received the
government cheque, the plaintiff should receive the monej'.

Now, that being the state of things upon the evidence of the plain-
tiff, it is obvious that there was a case on which the jury might
conclude, if the}' thought proper, that the guarantee given by the
manager was represented by him to be a guarantee which would
probably, or might probably, be paid, and that the plaintiff took the
guarantee, supposing that it was of some value, and that the cheque
would probably, or might probably, be paid. But if the manager at
the time, from his knowledge of the accounts, knew that it was
improbable in a verj' high degree that it would be paid, and knew and
intended that it should not be paid, and kept back from the plaintiff
the fact which made the payment of it improbable to the extent of
being as a matter of business impossible, the jiny might well have
thought (and it was a matter within their province to decide upon)
that he had been guilt}' of a fraud upon the plaintiff.

Now, was there evidence that such knowledge was in the mind of the
manager? The plaintiff had no knowledge of the state of the accounts,
and the manager made no communication to him with respect to it.
But the evidence of Davis was given for the purpose of supplying that
part of the case ; and he stated that, immediateh' before the guarantee
had been given, he went to the manager, and told him it was impossible
for him to go on unless he got further supplies, and that the govern-
ment were buying in against him ; to which the manager replied, that
Davis must go and tr}' his friends ; on which Davis informed the
manager that the plaintiff would go no further unless he had a further
guarantee. Upon that the manager acted ; and Davis added, " I owed
the bank above £12000."' The result was that oats were supplied b}'
the plaintiff to Davis to the amount of £1227, that Davis carried out
his contract with the government, and that the commissariat paid him
the sum of £2676, which was paid by him into the bank. He there-
upon handed a cheque to the [)laintiff, who presented it to the bank,
and without further explanation the cheque was refused.

This is the plain state of the facts ; and it was contended on behalf
of the bank that, inasmuch as the guarantee contains a stipulation
that the plaintiff's debt should be paid subsequent to the debt of the
bank, which was to have priorit}'. there was no fraud. We are unable
to adopt that conclusion. I speak sparingly, because we desire not to
anticipate the judgment which the constitutional tribunal, the jurv, ma}'
pass. But they might, upon these facts, justly come to the conclusion,
that the manager knew and intended that the guarantee should be
unavailing ; that he procured for his employers, the bank, the govern-

414 BAKWICK V. ENGLISH JOINT STOCK BANK. [CHAP. II.

ment cheque, by keeping back from the plaintiff the state of Davis's
account, and that he intended to do so. If the juiy took that view of
the facts, they would conclude that there was such a fraud in the
manager as the plaintiff complained of.

If there be fraud in the manager, then arises the question whether
it was such a fraud as the bank, his employers, would be answerable
for. Witli respect to that, we conceive we are in no respect overruling
the opinions of my Brothers Martin and Bramwell in Udell v. Atherton
7 H. & N. 172 ; the case most relied upon for the purpose of establish-
ing the proposition tluit the principal is not answerable for the fraud of
his agent. Upon looking at tliat case, it seems pretty clear that the divi-
sion of opinion which took place in the Court of Exchequer arose, not
so much upon the question whether the principal is answerable for the
act of an agent in the course of his business — a question which was
settled as earl}' as Lord Holt's time, Hern c. Nichols, 1 Salk. 289 ; but
in applying that principle to the peculiar facts of the case ; the act
which was relied upon there as constituting a liability in the sellers
having been an act adopted b}- them under peculiar circumstances, and
the author of that act not being their general agent in business, as the
manager of a bank is. But with respect to the question, whether a
principal is answerable for the act of his agent in the course of his
master's business, and for his master's benefit, no sensible distinction
can be drawn between the case of fraud and the case of an}' other
wrong. The general rule is, that the master is answerable for ever}'
such wrong of tlie servant or agent as is committed in the course of the
service and for the master's benefit, though no express command or
privity of the master be proved.^ That principle is acted upon every
day in running down cases. It has been applied also to direct tres-
pass to goods, as in the case of holding the owners of ships liable for
the act of masters abroad, improperly selling the cargo.^ It has been
held applicable to actions of false imprisonment, in cases where officers
of railway companies, intrusted with the execution of by-laws relating
to imprisonment, and intending to act in the course of their duty,
improperly imprison persons who are supposed to come within the
terms of the by-laws.^ It has been acted upon where persons
employed by the owners of boats to navigate them and to take fares,
have committed an infringement of a ferry, or such like wrong.* In all
these cases it may be said, as it was said here, that the master has not
authorized the act. It is true, be has not authorized the particular act,
but he has put the agent in his place to do that class of acts, and he
must be answerable for the manner in which the agent has conducted

^ See Laugher v. Pointer, 5 B. & C. 547, at p. 554. — Rep.

2 Ewbank v. Nutting, 7 C. B. 797. — Rep.

3 Goff V. Great Northern Railway Company, 3 E. & E. 672 ; 30 L. J. (Q. B.) 148,
explaining (at 3 E. & E. p. 683) Roe v. Birkenhead Railway Company, 7 Ex. 36 ; and
Bee Barry v. Midland Railway Company, Ir. L. Rep. 1 C. L. 130. — Rep.

* Huzzey v. Field, 2 C. M. & R. 432, at p.-440. — Rep.

SKCT. IV.] HATHAWAY V. JOHXSOX. 415

himself in doing the business which it was the act of his master to
place him in.

The onh' other point which was made, and it had at first a somewhat
plausible aspect, was this: It is said, if it be established that the
bank are answerable for this fraud, it is the fraud of the manager, and
ought not to have been described, as here, as the fraud of the bank.
I need not go into the question whether it be necessary to resort to the
count in case for fraud, or whether, under the circumstances, money
having been actually procured for and paid into the bank, which ought
to have got into the plaintiff's hands, the count for mone}' had and
received is not applicable to the case. I do not discuss that question,
because in common law pleading no such difficulty as is here sug-
gested is recognized. If a man is answerable for the wrong of another,
whether it be fraud or otber wrong, it may be described in pleading as
the wrong of the person who is sought to be made answerable in the
action. That was the decision in the case of Raphael v. Goodman,
8 A. & E. 565. The sheriff sued upon a bond ; plea, that the bond
was obtained by the sheriff and others by fraud ; proof, that it was
obtained by the fraud of the officer ; held, the plea was sufficiently
proved.

Under these circumstances, without expressing any opinion as to
what verdict ought to be arrived at b}- the jury, especially considering
that the whole case may not have been before them, we think this is a
matter proper for their determination, and there ought therefore to be
a venire de novo. Venire de novo.^

HATHAWAY, Survivor, etc., Respondent, v. JOHNSON,
Appellant.

Court of Appeals of New York. 1873.
[55 N. Y. 93.]

Appeal from order of the General Term of the Supreme Court in
the fourth judicial department, reversing an order of Special Term,
which vacates an order of arrest made by a justice at chambers.

This action was brought to recover the purchase-price of a quantity
of malt alleged to have been sold by plaintiff's firm to defendant. An
order of arrest was granted upon an aflSdavit stating that the sale of
the malt was induced by fraudulent representations on the part of
defendant. The papers, on the motion to vacate the order of arrest,
disclosed that defendant's business was conducted by one Bidwell, who
made the purchase of plaintiff's firm ; that defendant had no knowledge

1 See Mackay v. Commercial Bank, L. R. 5 P. C. 394 (1874^ ; Weir v. Bell, 3 Ex.
D. 238, 243-245 (C. A., 1878), per Buamwell, L. J. ; Houldsworth v. City of Glasgow*
Bank, 5 App. Cas. 317, 339 (H. L., 1880), per Lord Blackburn. — Ed.

416 HATHAWAY V. JOHNSON. [CHAP. II.

of the purchase or of the representations made thereon, until the ser-
vice of the papers in this action.

George F. Danforth, for the appellant.

X C. Cochrane, for the respondent.

Andrkws, J. The single question involved in this appeal is whether,
in an action against a principal to enforce a contract for the purchase
of propert}-, made by his agent, and to recover the agreed price,
\he principal can be arrested, on proof that the vendor was induced to
enter into the contract and give the credit by means of the fraudulent
representations of the agent, where the fraud w^as not known to or
authorized by the principal, and was not ratified by him, unless such
ratification is to be inferred from the receipt and use by the principal
of the property purchased, before he was informed of the fraud
practised bv the agent.

This question depends upon the construction to be given to that part
of the fourth subdivision of section 179 of the Code, which authorizes
an arrest "where the defendant has been guilt}' of a fraud in con-
tracting the debt, or incurring the obligation upon which the action is
brought." The obvious purpose of this provision was to introduce an
exception to the general rule prevailing in this State, forbidding arrest
and imprisonment for debt, and to permit this remedj' in an action
upon contract in the single case specified ; and the test of the liabilit}'
to arrest in such an action is the guilt of the defendant in contracting
the debt or incurring the obligation sued upon. Tliere must have
been a fraudulent purpose in contracting the debt or incurring the
liability on the part of the defendant whose arrest is sought. He must
have been guilty of a fraud, and this implies personal misconduct,
moral and actual, and not merely legal or constructive fraud, merely in
respect to the transaction which is the subject of the suit. This con-
struction is strengthened by the consideration that it harmonizes the
statute with the general polic}' and legislation of the State. The act
of April 26, 1831. "to abolish imprisonment for debt and to punish
fraudulent debtors," abrogated the S3-stem under which an innocent
debtor, whose onl}' fault might be his inability to pay his debts, could
be deprived of his liberty and imprisoned at the instance of the cred-
itor. It was a system of great severity, fruitful of oppression ; and its
abolition was demanded by public sentiment, influenced by the growth
of more just and humane views of the respective rights of creditors and
their debtors. But the legislature excluded from the benefit of the act
fraudulent debtors, b}' subjecting them to arrest in an action to recover
the debt, and to commitment, " as otlier prisoners, on criminal process,"
until they procured their discharge in the mnnner provided b}- the act
(§ 11). One of the grounds on which an arrest might be made under
the act of 1831 was identical with that stated in the provision of the
Code under consideration, viz., that the defendant fraudulently con-
tracted the debt or incurred the obligation respecting which the suit
was brought. (§ 4, sub. 4.;

SECT. IV.] HATHAWAY V. JOHNSON. 417

Statutes authorizing arrest and imprisonment for debt, although
remedial in that they are designed to coerce, by means of the imprison-
ment, the paj-ment of the creditor, are also regarded as penal, and
ought not to be extended by construction so as to embrace cases not
clearly within them. (Sturgis v. Crowningshield, 4 Wheat. 200 ; Von
Hoffman v. The City of Quincy, 4 Wal. 553.) The statute of 1831 and
the provisions of the Code authorizing arrests are in jjarl materia ; and
if the defendant can be arrested under the Code in an action ex con-
tractu for the fraud of his agent, of which he was moralh- guiltless, in
an action on the contract, I see no reason why he cannot be arrested
and imprisoned, as a " prisoner on criminal process," under the act of
1831, which is still in force.

The order of arrest in this case is sought to be justified on the
ground that the fraud of the agent acting witliin the scope of his au-
thority is, in law, imputed to his principal. The autliority of the agent
to make the contract for the purchase of the malt is not denied ; and
the rule is stated by Mr. Justice Story to be (Stor^^ Ag., § 134), that
where the act of the agent will bind the principal, then his representa-
tions, declarations, and admissions respecting tlfe subject-matter will
also bind him, if made at the same time and constituting a part of the
res gestcB. That the principal is liable for the fraudulent conduct and
representations of the agent, made in the course of his dealings for the
principal, where the principal has received and retained the fruits of
the fraud, is affirmed by the general current of authority. (Hern v.
Nichols, 1 Salk. 289 ; C'ornfoot v. Fowke, 6 M. & W. 358 ; Murray v.
Mann, 2 Exch. 537; Bennett v. Judson, 21 N. Y. 238.) It is conso-
nant with reason and justice that a principal should not be allowed to
profit by the fraud of his agent ; and if he adopts the contract made in
his behalf, although ignorant of the fraud, he should be held liable
to make compensation to the part}' injured b\- it. An action for the
deceit in such a case was maintained in Bennett v. Judson ; and Com-
stock, J., was of opinion that, in point of pleading, the fraud might
be charged as that of the defendant. In Udell v. Atherton (7 H. & M.
170), there is a very able discussion of the question, whether an action
for deceit would lie in such a case against the principal, and the
learned judges were equally divided in opinion. But admitting the
right of the plaintiflE" to have brought an action on the case for fraud
and deceit against the defendant, it b}' no means establishes that he
was guilty of a fraud in contracting the debt, within the provision
authorizing an arrest, in an action on the contract. The plaintiff has
abandoned the pursuit of his remedy, by action for the deceit, and has
elected to rely on the contract, and the fraud is no part of the cause of
action, but is extrinsic to it, and must be established aliunde to warrant
an arrest, and in this form of action it is personal and not imputed
fraud which entitles the plaintiff" to the order. The argument that the
right to arrest, if the action had been for deceit, is to be taken into
view in construing the provision in question is without force, when it

418 AKMOUR V. MICHIGAN CENTRAL KAILKOAD CO. [CHAP. II.

is considered that, until tlae amendment of 1863, no arrest was author-
ized in an action for fraud or deceit against a resident of the State ;
and if the plaintiff''s construction is sound, then the defendant, before
tliat time, could have been arrested in an action on the contract,
although he could not have been in an action for the fraud. In short,
the two provisions are not in construction dependent upon or connected
with each other. Trover ma^', in man^^ cases, be maintained against
a person innocent of any intentional wrong (Spraights v. Hawle}-, 39
N. Y. 441), and, where trover will lie, an order of arrest in an action
for the conversion may be issued.

But if the plaintiff should waive the tort, and bring assumpsit to
recover the mone}' received on the sale of the property, he could not
arrest the defendant. The change in the form of the action would
prevent it. The true construction of the provision of the Code referred
to does not, in m}' judgment, warrant an arrest, under the circum-
stances of this case.

The order should be reversed, and the order of Special Term
affirmed.

All concur except- Grover, J., dissenting, and Folger, J., not
voting. Ordered accordingly.

ARMOUR ET AL., Appellants, v. MICHIGAN CENTRAL
RAILROAD CO., Respondent.

Commission of Appeals of New York. 1875.
[65 N. Y. 111.]

Appeal from a judgment of the General Term of the Superior
Court of the city of New York affirming a judgment in favor of de-
fendant, entered upon the report of a referee. (Reported below,
3 J. & S., 563.)

This action was brought upon two bills of lading issued by
defendant.

The referee found the following facts, in substance : That, on the
7th da}' of October, 1867, one D. D. Michaels produced and delivered
to the defendant's agent, in the city of Chicago, a paper purporting to
be a receipt, signed by I. T. Sunderlin, dated the second of the pre-
vious July, for 200 tierces prime lard, his brand and manufacture, in
store for account and risk of said Michaels, to be held subject to
return of said receipt properly indorsed, and payment of storage, usual
rate, loss and damage b}' fire or leakage at owner's risk, marked M.
That Michaels delivered to the defendant's agent his order on Sun-
derlin for 100 tierces of lard, and thereupon the defendant, b}' its
agent, executed and delivered to Michaels a bill of lading, or carrier's
receipt, acknowledging the receipt from him of 100 tierces of lard

SECT. IV.] ARMOUR V. MICHIGAN CENTRAL RAILROAD CO. 419

consigned to the plaintiffs, at New York, and to be there delivered to
them. The defendant, at the request of Michaels, afterwards, and on
the 12th of October, 1867, on the faith and credit of what purported
to be Sunderlin's warehouse receipt, having in the mean time, at the
request of Michaels, omitted to call on Sunderlin for the 100 tierces,
executed and delivered to Michaels another bill of lading, acknowl-
edging the receipt from him of the other 100 tierces of lard, like the
previous 100 tierces consigned and to be transported to the plaintiffs,
at New York. That the defendant, at the time when these bills of
lading were issued, was informed by Michaels that he intended using
the same at bank the same day. That Michaels, on the seventh of
October, made his draft upon the plaintiffs for $3,600, to which he
attached the defendant's bill of lading of that day, and on the twelfth
he made another draft upon the plaintiffs for the further sum of $3,600,
to which he attached the bill of lading of the latter date, each of which
drafts were made payable to the order of and was delivered to the
Manufacturers' National Bank of Chicago, b}- whom they were, with
the bills attached, transmitted to New York, and there caused to be
presented to the plaintiffs for payment ; and that the plaintiffs, on the
faith and credit of the respective bills of lading, paid the first draft on
the 10th or 11th of October, 1867, and the second, on the fifteenth or
sixteenth of the same month. It was soon after, and prior to the
twentj'-third of the same October, discovered that the receipt pur-
porting to have been signed by Sunderlin for the 200 tierces of lard
was a forgery committed by Michaels, and that he had not the property
referred to therein in the hands of Sunderlin ; of this the defendant
had no prior knowledge or information, but, acting in the belief of the
genuineness of the receipt, and that a certain 197 tierces of lard in
Sunderlin's possession, as warehouseman, branded I. T. Sunderlin, was
the property intended to be covered by the receipt, caused them to be
seized and placed in its possession, and transported to New York,
where they arrived prior to the thirtieth of the same month. On that
day, the plaintiffs presented to the defendant's agent in that city the
two bills of lading, and requested the delivery to them of the 200
tierces of lard therein mentioned, with which request he refused to
comply ; and thereupon, on that day, the plaintiffs commenced this
action. On the first daj- of November following, Walbridge, Wat-
kins & Co., having the right of propert}^ and possession of the 197
tierces of lard, brought an action of replevin therefor, in the Supreme
Court of this State, against the Hudson River Railroad Compan}', in
whose possession the lard then was, and thereby obtained the pos-
session thereof, of which the plaintiffs were notified b}' the defendant,
with a request to appear and defend, and a consent to substitute, in-
stead of its attorney, any attorney they might name. They did not
appear in the action, and, by the judgment therein, it was adjudged
that the plaintiffs therein had the right to recover the 197 tierces
of lard.

420 ARMOUK V. MICHIGAN CENTRAL RAILROAD CO. [CHAP. 11.

As a conclusion of law from these facts, the referee found that by
the bills of lading, or carrier's receipts, and the deliver}' of them to the
plaintiffs attached to Michaels' drafts upon them, and the payment by
them of those drafts, they acquired all the rights of Michaels ; and it
being shown that the goods received by the defendant for transporta-
tion under its contracts were 197 tierces of lard, to which Walbridge,
Watkins & Co. had paramount title, and right of possession, the de-
fendant was legally excused for the non-delivery of the 197 tierces;
and that for the value of the remaining three tierces, the plaintiffs were
entitled to recover, and ordered judgment against the defendant for
$142.30, the balance thereof.

Judgment was entered in accordance with those conclusions.

Further facts appear in the opinion.

Sarmiel Hand, for the appellants.

Benj. K. Fhelps, for the respondent.

Gray, C. The facts in this case (omitting those only which are
immaterial) are, in substance, these : The defendant knowing that it
bad not received from or on account of Michaels any lard whatever,
and with knowledge when the respective bills of lading were issued
that Michaels intended to use them at bank, issued and delivered them
to him ; these bills, when thus issued, were attached by Michaels to his
drafts upon the plaintiffs for a sum somewhat exceeding $7,000, which,
upon presentation to them, they, upon the faith that the defendant had
received and would transport to the places specified in the respective
bills the lard therein described to be in its possession, paid the sums
specified in the respective drafts at the time and in the order in which
the}' were presented ; and thus the question comes up, whether the
defendant is not estopped from setting up as a defence to this action
that its statements, known by its agent, at the time of making them,
to be untrue, were in fact false, and that no lard whatever was received
b}' the company for or on account of Michaels? The true answer to
this question is not involved in doubt. The well-recognized principle
that a party who, by his admissions, has induced a third party to act
in a particular manner is not permitted to deny the truth of his admis-
sion, if the consequence would be to work an injury to such third part}-,
applies to and governs this case. (2 Redfield on Law of Railways
[4th ed.], 167; Dickerson v. Seeley, 12 Barb. 99, 102; approved in
Ellis V. Willard, 9 N. Y. 529, 534.)

It is, however, insisted that the defendant, in issuing these bills of
lading, acted in good faith and without any design to commit a fraud
upon any one who should make an advance upon the strength of them,
and is, therefore, not estopped by the recital contained in them of the
receipt of the lard. It cannot, I think, be doubted that the defendant
did believe that what purported to be Sunderlin's warehouse receipt was
genuine and not a forgery. The difficulty is that the defendant's bill
of lading did not recite the receipt by it of Sunderlin's warehouse re-
ceipt for the lard, but its own receipt of it, and it may be conceded the

BECT. IV.] ARMOUR V. MICHIGAN CENTRAL RAILROAD CO. 421

defendant really believed the lard would be forthcoming when it should
be demanded, and that no injury would result to the plaintiffs. But its
false statement that it had received the lard misled them, and hence
the defendant must be held to intend what was in fact the legitimate
consequences of its own misstatement. And now that it has been the
cause of the advances made by the plaintiffs, it is no excuse for not
delivering the lard, which it represented to the defendant it had
received from Michaels, that it was by the judgment of the Supreme
Court of tliis State prevented from delivering 197 tierces of lard, the
propert3- of another, which it never received from Michaels, but seized
and would have delivered to the plaintiffs but for the process and sub-
sequent judgment of the court in favor of the rightful owner.

There is some ambiguit}- produced by a recital in one of the referee's
conclusions of law, "• that the goods received bj- the defendant for trans-
portation were 197 tierces of lard," which is solved by the evidence
and previous findings of fact, from which it appears that the paper
purporting to be Sunderlin's warehouse receipt for 200 tierces of lard
was the defendant's only reliance that Michaels had the lard for which
the bills of lading were given, and that the receipt purporting to have
been given by Sunderlin was a forgery committed bj- Michaels himself,
who had not the property therein referred to ; and further on, inde-
pendent of what is shown as the judgment record in replevin, he found
that Walbridge, Watkins & Co., and not Michaels, had not only the
right of propert}' in, but the right of possession of, the 197 tierces of
lard which the defendant caused to be seized with intent to carrj- and
deliver the same to the plaintiffs instead of the 200 tierces represented
b}- the forged receipt, and which, by the bill of lading, the defendant
falsely represented to be in its possession, and of which it was never
either actually or constructively possessed.

The judgment of the General and Special Terms should be reversed
and new trial ordered.

DwiGHT, C.^ The simplest way of arriving at the correct result in
this case will be to inquire, in the first place, as to what would have
been the rights of the plaintiffs in case the defendant had had the lard
in its possession, next to consider the defendant's obligations as hav-
ing no goods to correspond with the bill of lading, and finally to take
into account the effect of the proceedings in replevin.

I. In case the defendant had had in its possession lard to corres-
pond with the bills of lading, the plaintiffs would have had the title to
it in trust for Michaels after paying its own lien. It will be observed
that the bills ran directly to the plaintiffs. The consignment was made
to them. They are not assignees of bills made to Michaels, but the
contract to deliver the lard is made b}' the defendant with them. The}'
were not mere agents of Michaels, but they had an interest to the ex-
tent of $7,000 and upward. This fact the defendant knew when the

1 After statins: the facts. — Ed

422 ARMOUR V. MICHIGAN CENTRAL RAILROAD CO. [CHAP. IL

bills were issued, and it could not den}- that it contracted to deliver
the lard to the plaintiffs in case that it had the property in its posses-
sion. The effect of such a bill of lading ruiuiing to a consignee who
has made advances vvas considered in The Bank of Rochester r. Junes,
4 N. Y. 497, 502 ; Haille v. Smith, 1 Bos. & Pull. 060 ; Allen .'. Wil-
liams, 12 Pick. 297 ; First National Bank of Toledo v. Shaw, 61 N. Y.
283. It was held in these cases, in substance, that where an owner of
goods delivers them to a carrier, who issues a bill of lading to a con-
signee, who advances money on the faith of the bills, the latter
becomes owner for his own sake to reimburse himself, and after reim-
bursement, in trust for the former owner. Haille v. Smith is directly
in point. In that case, G. & H. Brown, of Liverpool, wishing to
draw upon L. Smith & Co., a banking-house in London, to a large
amount, agreed, among other securities to be given, to consign goods
to a mercantile house consisting of the same partners as the banking-
house. The goods were consigned accordingly to the mercantile house.
It was held that the consignment to the mercantile house transferred
to it the general property in the goods in trust, and that the banking-
house and consignors were both concerned as cestui que trust, and
that the bill of lading operated as an evidence of the change of prop-
erty. The principle of this case has been twice approved in this
court (see the cases above cited), and must now be regarded as set-
tled law. As applied to the facts of the present case, it would result
that the plaintiffs would have had the legal title to the lard ; that the
contract for its deliver}- was made with them, and that in general they
would have been able to vindicate their claim to the property by all
the remedies incident to ownership and to a contract for transportation
of their property.

IL It is now necessary to consider how far the fact that the company
had no lard affects this question. This inquiry divides itself into two
branches. One concerns the power of Street to bind the company- by
issuing bills of lading when it has no goods to correspond with the
bills. The other is to consider the effect of the bills, assuming that
the agent had the requisite authorit}'. The defendant insists that Street
could not bind it b}' issuing fictitious or non-representative bills of
lading. It claims that his authority was confined to bills for goods
actually within its control. It cites, to this eflfect, Grant v. Norway,
10 Com. Bench, 665 ; Schooner Freeman v. Buckingham, 18 How.
(U. S.) 182.

Grant v. Norway- has been subject to much and severe criticism, as
being adverse to the general view prevailing in the courts of this State,
where confidence has been reposed in an agent and an apparent author-
it}' conferred upon him, that the principal must suffer from an actual
exercise of authorit}' not exceeding the appearance of that which is
granted. When one of two innocent persons must suffer in such
a case, that person must bear the loss who reposed the confidence.
So far as Grant v. Norwa}' stands in the way of this doctrine, it must

SECT. IV.] ARMOUR V. MICHIGAN CENTRAL RAILROAD CO. 423

be deemed to be overruled. (Remarks of Davis, J., in N. Y. &, N. H.
R. R. Co. V. Schuyler, 34 N. Y. 73.) Grant v. Norwa}-, however, is
not precisely parallel with the present case. In that case the bill of
lading was issued to a party who knew that the bill of lading was issued
by an agent without authority, and was then transferred to a purchaser
acting in good faith. It may, accordingl}-, be said with plausibility
that the representation was not made to the assignee, who simply ac-
quired the title of the fraudulent consignee. It would have resembled
the case at bar if the plaintiffs had known of the forgery of Michaels
when they took the bills of lading, and had then transferred them to
persons paying value and acting in good faith. The case would then
have been governed by the rule that an assignee of a thing in action
must abide b}' the case of him of whom he buys. (Remarks of Sel-
den, J., in Griswold v. Haven, 25 N. Y. 604-GOG.)

Street, having power to issue bills direct to consignees for goods
actually in the possession of the defendant, and the present bills being
in no ways distinguishalile in form from those which were usuall}- em-
ployed, he must be considered as having the necessary authority as to
the plaintiffs acting in good faith.

The only remaining point under this branch of the case is, whether
the defendant is not estopped b3' the statements in the bill of lading
from denying that it had sufficient lard secured from Michaels to com-
ply with its terms. The defendant's agent was informed bj- Michaels
that the bills were to be used at bank on the same da}'. The}" were
issued with the expectation that thev would be acted upon b}' bankers
or other capitalists. It cannot complain if the bills accomplished the
purpose for which they were designed. The representations in the bills
were made to any one who, in the course of business, might think fit to
make advances on the faith of them. There is thus present every
element necessary to constitute a case of estoppel in 'pais, a represen-
tation made with the knowledge that it might be acted upon, and sub-
sequent action upon the faith of it to such an extent, that it would
injure the plaintiffs if the representation was not made good. It is
now well settled that fraud is not necessary to constitute a case of
estoppel. Though the defendant was induced b}' the fraud or mistake
of Michaels to issue these bills, that is immaterial. Its liabilit}- de-
pends on the fact that, no matter what its inducements may have been,
it has made certain representations upon which the plaintiffs have ad-
vanced their money in good faith. If the defendant placed undue con-
fidence in Michaels, it is but the familiar case of imposing the burden
upon him who unwisely or unguardedly reposed the confidence. (Brown
V. Bowen, 30 X. Y. 519 ; Manufacturers and Traders' Bank v. Hazard,
id. 226 ; Shapley v. Abbott, 42 id. 443 ; Rawls v. Deshler, 4 Abb. Ct
App. 12.) The principle governing the present case was announced
m the case of Griswold v. Haven, 25 N. Y. 595. It there appeared
that the defendants John Wright & Co. issued receipts representing
that they had in store, on account of Ford «&; Son, a quantity of graia

424 ARMOUR V. MICHIGAN CENTRAL RAILROAD CO [CHAP. II.

One of the defendants went with one of the firm of Ford & Co. to the
plaintiff, and in ve[Ay to an inquiry from the plaintiff stated that the
grain was in good oi'der and all right. It was held that the plaintiff
having made advances on the faith of the statement, the defendants
were bound bv the act of tlieir agent, and were estopped from denying
that they had the grain in store. The difference in facts between this
case and the one at bar makes no difference in principle. In the one
case the statement was oral, in the other it was written. Both cases
have the important and leading element that the agent knew that the
statement was to be acted upon.

The fact that a bill of lading is not negotiable, has nothing to do
with the question. That point would have been open for discussion if
the bills had been issued to Michaels and then assigned to the plain-
tiffs. As it was, the representations having been made direct to the
plaintiffs, their right of action is not derived through Michaels, but rests
upon the direct relations between themselves and the defendant. This
view is sustained by the case of Moore v. The Metropolitan Nat. Bk.,
55 N. Y. 41. It is there held that a bona Jide purchaser for value
of a non-negotiable chose in action from one upon whom the owner
has by assignment conferred the apparent absolute ownership (such
purchase being made on the faith of that ownership), obtains a valid
title as against the real owner, who is estopped from asserting a title in
hostility thereto. This view is also supported by McNeil v. Tenth
National Bank, 46 N. Y. 325. The court in the Metropolitan Bank
Case expressly affirms that a representation in a non-negotiable chose
in action is equivalent in all respects, where it is acted upon (in accord-
ance with the usual rules applied in cases of estoppel), to one made in
the case of negotiable paper. As this is the latest utterance of the
Court of Appeals, overruHng Bush v. Lathrop, 22 N. Y. 535, so far as
that case is inconsistent with it, it must be followed in this court.

If these views are correct the plaintiffs in the present case might
have brought an action of trover against the defendant for so many
tierces of lard as the bill of lading called for. Griswold v. Haven,
suj)ra ; Harding v. Carter, Park on Ins. 4; 1 Greenl. on Ev., § 208.
The same rule is applicable to innocent mistakes which have been acted
upon as to fraudulent misrepresentations. Salem Bk. v. Gloucester Bk.,
17 Mass. 1, 27.

As it must be assumed that the defendants had lard to which the
plaintiffs had the title, they could bring any action incident to owner-
ship in case the lard was not delivered. The present action is accord-
ingly well founded.

III. The action of replevin instituted against the Hudson River
Railroad Company by "Walbridge, Watkins & Co., had no effect upon
the plaintiffs' right. There was no evidence tliat the lard seized in that
action was that which the defendant was bound to deliver. It did not
have the marks described in the bills of lading, nor was it received bj'
the defendant from Michaels. On the other hand, it was obtained bj'

SECT. IV.] BRITISH BANKING CO. V. CHARNWOOD FOREST RY. CO, 425

the defendant from the warehouseman acting for the real owners (Wal-
bridge & Co.) by its own wrongful act. It cannot set up a replevin suit
which was caused solely by its unjustifiable intermeddling with the
property of another in bar of its duty to deliver hird which it pro-
fessed to receive from Michaels on behalf of the plaintiffs.

The judgment should be reversed and a new trial ordered.

All concur, except P^arl, C, dissenting.

Judgment reversed.^

BRITISH MUTUAL BANKING CO. v. CHARNWOOD
FOREST RAILWAY CO.

Court of Appeal. 1878.
[18 Q. B. D. 714.]

Appeal from an order of the Queen's Bench Division (Manisty and
Mathew, JJ.) directing judgment to be entered for the plaintiffs.

The action was brought to recover damages for fraudulent misrepre-
sentations alleged to have been made b}- the defendants through their
secretary. At the trial before Lord Coleridge, C. J., it appeared that
certain customers of the plaintiffs had applied to them for an advance
on the security of transfers of debenture stock of the defendant com-
pany. The plaintiffs' manager called upon Tremayne, the defendants'
secretar}', and was informed in effect that the transfers were valid, and
that the stock which they purported to transfer existed. The plaintiffs
thereupon made the advances. It subsequently appeared that Tre-
mayne, in conjunction with one Maddison, had fraudulentl}' issued cer-
tificates for debenture stock in excess of the amount which the company
were authorized to issue, and the transfers as to which the plaintiffs
inquired related to this over issue. The plaintiffs accordingly lost their
security. The defendants did not benefit in any wa}' by the false state-
ments of Tremayne, which were made entirely in the interest of him-
self and Maddison. There was some question whether Tremayne was
still secretary at the time the statements were made, but the jur}' found
that the inquiries were made of him as secretary, and that the defend-
ants held him out as such to answer such inquiries. The jury assessed
the damages, and the Chief Justice left either of the parties to move
for judgment. A motion was accordingly made on behalf of the plain-

1 Ace. : Sioux City & Pacific Railroad Co. v. First National Bank, 10 Neb. 556 (1880) ;
Bank of Batavia v. N. Y., L. E. & W. Railroad Co., 106 N. Y. 195 (1887) ; Fifth
Avenue Bank y. F. S. S. & G. S. F. Railroad Co., 137 N. Y. 231 (1893).

And see Wichita Savings Bank v. A., T. & S. F. Railroad Co., 20 Kan. 519 (1878) ;
Brooke v. N. Y., L. E. & W. Railroad Co., 108 Pa. 529 (1885).

Compare Manhattan Life Insurance Co. v. F. S. S. & G. S. F. Railroad Co., 139
N. Y. 146 (1893) ; Bank of New York v. American Dock & Trust Co., 143 N. X. 55'J
(1894). — Ed.

426 BRITISH BANKING CO. V. CHARNWOOD FOREST RY. CO. fCHAP. II.

tiffs before Manisty and Mathew, JJ., who directed judgment to be
entered for them.

Tlie defendants appealed.

Fiiilay, Q. C, and II. Suttoii, for the defendants.

W. Graham and Edward Morten, for the plaintiffs.

II. Sutton, in reply.

Lord EsHER, M. K. In this case an action has been brought by
the plaintiffs to recover damages for fraudulent misrepresentation by
the defendants, through their secretary', as to the validity of certain
debenture stock of the defendant company. The defendants are a
corporation, and the alleged misrepresentations were in fact made hy
a person employed in the capacity of their secretary, and it cannot be
doubted that when he made the statements he had a fraudulent mind,
and made them knowing them to be false.

I differ from the judgment of the Divisional Court, but I do not
think the ground on which m}' decision is based was present to the
minds of the learned judges. The point principally argued in the
Divisional Court seems to have been that the defendants could not be
liable on account of their being a corporation. It seems to me, how-
ever, that there is a defect in the plaintiffs' case irrespective of the
question whether the defendants were a corporation or not. The sec-
retary' was held out b}' the defendants as a person to answer such ques-
tions as those put to him in the interest of the plaintiffs, and if he had
answered them falsely on behalf of the defendants, he being then
authorized by them to give answers for them, it may well be that they
would be liable. But although what the secretary stated related to
matters about which he was authorized to give answers, he did not
make the statements for the defendants but for himself. He had a
friend whom he desired to assist and could assist by making the
false statements, and as he made them in his own interest or to assist
his friend, he was not acting for the defendants. The rule has often
been expressed in the terms, that to bind the principal the agent must
be acting " for the benefit" of the principal. This, in my opinion, is
equivalent to saying that he must be acting " for" the principal, since
if there is authority to do the act it does not matter if the principal is
benefited b}- it. I know of no case where the employer has been held
liable when his servant has made statements not for his employer, but
in his own interest. The attention of the learned judges seems to
have been drawn off from this view of the case by the argument founded
on the defendants being a corporation, and I think their judgment must
be overruled.

The following judgment was read by

BowEN, L. J. There is, so far as I am aware, no precedent in Eng-
lish law, unless it be Swift v. Winterbotham, Law Rep. 8 Q. B. 244,
a case that was overruled upon appeal, Swift v. Jewsbur}', Law Rep. 9
Q. B. 301, for holding that a principal is liable in an action of deceit for
the unauthorized and fraudulent act of a servant or agent committed.

SECT. IV.] BRITISH BANKING CO. V. CHAKNWOOD FOREST RY. CO 4^7

not for the general or special benefit of the principal, but for the servant's
own private ends. The true rule was, as it seems to me, enunciated b}'
the Exchequer Chamber in the judgment of Willes, J., delivered in the
case of Barwick r. English Joint Stock Bank, Law Rep. 2 Ex. 259. " The
general rule," sa^'s Willes, J., "is that the master is answerable foi
ever}- such wrong of his servant or agent as is committed in the course
of his service and for the master's benefit, though no express command
or privity of the master be proved." This definition of liability has
been constantly referred to in subsequent cases as adequate and satis-
factory', and was cited with approval b}' Lord Selborne in the House of
Lords in Houldsworth v. City of Glasgow Bank, 5 App. Cas. 317.
Macka}- v. Commercial Bank of New Brunswick, Law Rep. 5 P. C.
394, is consistent with this principle. It is a definition strictly in ac-
cordance with the ruling of Martin, B., in Linipus v. London General
Omnibus Co., 1 H. & C. 526, which was upheld in the Exchequer
Chamber (see per Blackburn, J.).

It was argued on behalf of the plaintiffs in the present appeal that
the defendant company, although the\- migiit not have authorized the
fraudulent answer given bj- the secretary, had nevertheless authorized
the secretary to do '"tliat class of acts'" of which the fraudulent an-
swer, it was said, was one. This is a misapplication to a wholly dif-
ferent case of an expression which in Barwick v. English Joint Stock
Bank, Law Rep. 2 Ex. 259, was perfectly appropriate with regard to
the circumstances there. In that case the act done, though not ex-
pressly authorized, was done for the master's benefit. With respect
to acts of that description, it was doubtless correct to sa}- that the agent
was placed there to do acts of " that class." Transferred to a case
like the present, the expression that the secretary' was placed in his
office to do acts of ''that class" begs the very question at issue, for
the defendants' proposition is, on the contrary, that an act done not
for the employer s benefit, but for the servant's own private ends, is not
an act of the class which the secretarj' either was or could possibly be
authorized to do. It is said that the secretary was clothed ostensiblj'
with a real or apparent authority to make representations as to the
genuineness of the debentures in question ; but no action of contract
lies for a false representation unless the maker of it or his principal
has either contracted that the representation is true, or is estopped
from denying that he has done so. In the present case the defendant
company could not in law have so contracted, for any such contract
would have been beyond their corporate powers. And if they cannot
contract, how can they be estopped from denying that they have done
so? The action against them, therefore, to be maintainable at all, must
be an action of tort founded on deceit and fraud. But how can a com-
pany be made liable for a fraudulent answer given by their officer for
his own private ends, by which they could not have been bound if they
had actually authorized him to make it, and promised to be bound by
it? The question resolves itself accordingly into a dilemma. The

428 BRITISH BANKING CO. V. CHARNWOOD FOREST RY. CO. [CHAP. II.

fraudulent answer must have either been within the scope of the agent's
emploj'ment or outside it. It could not be within it, for the company
had no power to bind themselves to the consequences of anj' such an-
swer. If it is not within it, on what ground can the compau}' be made
responsible for an agent's act done beyond the scope of his employ-
ment, and from which they derived no benefit? This shows that the
proposition that the secretary in the present case was emploj'ed to do
that "class of acts" is fallacious, and cannot be maintained. The
judgment of the court below is based upon the view that the act done
was in fact within the scope of the secretary's employment, and if tliis
proposition cannot be maintained, the judgment must fall with it. How
far a statutory corporate body could in an}- case be made liable in an
action for deceit beyond the extent of the benefits they have reaped
bj' the fraud is a matter upon which I desire to express no opinion, for
none is necessar}' to the decision here ; but even if the principals in
the present case were not a statutory body, with limited powers of con-
tracting and of action, I think there would be danger in departing from
the definition of liability laid down by Willes, J., in Barwick v. English
Joint Stock Bank, and in extending tbe responsibility of a principal for
the frauds committed by a servant or agent be^'ond the boundaries hith-
erto recognized by English law. I think, therefore, that this appeal
must be allowed with costs.

Frt, L. J. I agree in the view that the appeal must be allowed.
It appears to me that the case is one of an action for fraudulent misre-
presentation made by a servant, who in making it was acting not in the
interest of his employers, but in his own interest. It is plain that
the action cannot succeed on any ground of estoppel, for otherwise
the defendants would be estopped from denying that the stock was
good. No corporate body can be bound b}' estoppel to do something
bej'ond their powers. The action cannot be supported, therefore, on
that ground. Nor can it be supported on the ground of direct au-
thority to make the statements. Neither can it be supported on the
ground that the company either benefited by or accepted or adopted
any contract induced or produced b}- the fraudulent misrepresentation.
I can see no ground for maintaining the action, and the appeal must
be allowed. Appeal allowed.

SECT. V.l REX V. ALMON. 429

SECTION V.
Crimes.

REX V. ALMON.
King's Bench. 1770.

[5 Burr. 2686.]

The defendant having been convicted of publishing a libel (Junius's
Letters) in one of the inagazines called the " London Museum," which
was bought at his shop, and even professed to be " Printed for him ; "

His counsel moved, on Tuesday, 19th June, 1770, for a new trial;
upon the foot of the evidence being insufficient to prove any criminal
intention in Mr. Almon, or even the least knowledge of their being
sold at his shop. And they had affidavits to prove, that it was a
frequent practice in the trade, for one publisher to put another pub-
lisher's name to a pamphlet, as printed for that other, when in fact it
was published for himself. That this was the fact in the present case ;
Mr. Miller being the real publisher of this " Museum," but having
advertised it and published it as printed for Mr. Almon, without con-
sulting Mr. Almon, or having his consent or approbation. That, on
the contrary, as soon as he saw his name put to it as being printed for
him, he immediatel}' sent a note to Mr, Miller, expressing his disappro-
bation and dissatisfaction. That he himself had no concern whatever
in this " London Museum." That he was not at home when the}' were
sent to his shop. That the whole number sent to his shop was three
hundred. That about sixt3-seven of them had been sold there, by a
boy in the shop, but without Mr. Almon's own knowledge, privity, or
approbation. That as soon as he discovered it, he stopped the sale,
ordered the remainder to be carried up into his garret, and took the
first opportunity to return them to Mr. Miller. That it was not proved,
that the person who sold them was Mr. Almon's servant, or employed
by him ; or that Mr. Almon was at all privy to the sale.

On Wednesday 27th June, 1770, it came on again ; and

Serjeant Glyn?^ argued that the proof against Mr. Almon appearea
therefore to be defective : there* was nothing to constitute criminality,
or induce punishment.

That after the jury had been out about two hours, one of them (Mr.
Mack worth) proposed a doubt " Whether the bare proof of the sale in
Mr. Almon's shop, without any proof of privity, knowledge, consent,
approbation, or malus animus, in Mr. Almon himself, was sufficient in
law to convict him criminally of publishing a libel."

Mr. Maekworth understood his lordship's answer to this doubt to be
this: "That this was conclusive evidence." Otherwise, Mr. Mack-

430 REX V. ALMON. [CHAP. II.

worth was convinced in his own mind, that the defendant ought not to
be found guilty upon this evidence ; nor would he have found him
guilt}'. He certainly gave his verdict under a mistake. If he had
apprehendefl that the jury were at liberty' to exercise their own judg-
ment, he would have acquitted the defendant. The serjeaut prayed
that Mr. Mackworth's affidavit might be read.

Lord Mansfield, You know, it can't be read.

Mr. Justice Aston. A juryman's affidavit with regard to his senti-
ments in point of law, at the trial, ought not to be admitted ; whatever
may be the case of his affidavit tending to rectify a mistake in fact.

Lord Mansfield, in reporting the evidence, said he had told the
juiy, that there was evidence of the publication, if they beUeved the
witnesses. And he said, he had directed them (as he always had
done, and as he took the law to be) that if they were not satisfied that
the blanks were filled up in the information, in the true sense and mean-
ing of the writer, they ought to acquit the defendant ; and that the
epithets used in the information were inferences of law, drawn from
the paper itself, and not facts to be proved.

The Court were of opinion, that none of the matters urged on behalf
of the defendant, nor all of them added together, were reasons for
granting a new trial, whatever weight they might have in extenuation
of his offence, and in consequence lessening his punishment. For
the}' were exceedingh' clear and unanimous in opinion, that this
pamphlet being bought in the shop of a common known bookseller
and publisher, importing by its title-page to be printed for him, is a
sufficient prima facie evidence of its being published by him : not
indeed conclusive, because he might have contradicted it, if the facts
would have borne it, b}' contraiy evidence. But as he did not offer any
evidence to repel it, it must (if believed to be true) stand good till
answered, and be considered as conclusive, till contradicted.

Lord Mansfield said and repeated, that Mr. Mackworth had under-
stood him perfectly right ; and he was very glad to find that there was
no doubt of what he had said. The substance of it was, tliat in point of
law, the buying the pamphlet in the public open shop of a known pro-
fessed bookseller and publisher of pamphlets, of a person acting in the
shop, prima, facie is evidence of a pubhcation b}' the master himself;
but that it is liable to be contradicted, where the fact will bear it, by
contrary evidence tending to exculpate the master, and to show that
he was not privy nor assenting to it nor encouraging it. That this
being prima facie evidence of a publication by the master himself, it
stands good till answered b}' him ; and if not answered at all, it there-
b}' becomes conclusive so far as to be sufficient to convict him. That
proof of a public exposing to sale and selling, at his shop by his ser-
vant, was prima facie sufficient ; and must stand till contradicted or
explained or exculpated by some other evidence ; and if not contra-
dicted, explained or exculpated, would be in point of evidence sufficient
or tantamount to conclusive. Mr. Mackworth's doubt seemed to be

SECT, v.] REX V. ALMON. 431

" Whether the evidence was sufficient to convict the defendant, in case
he believed it to be true." And in this sense 1 answered it. Prima
facie, 't is good ; and remains so, till answered. If it is believed, and
remains unanswered, it becomes conclusive. If it be sufficient in point
of law, and the juryman believes it, he is bound in conscience to give
his verdict according to it.

In practice, in experience, in historj-, in the memory of all persons
living, this is (I believe) the first time that it was ever doubted " That
this is good evidence against a bookseller or publisher of pamphlets."
The constant practice is, to read the libel, as soon as ever it has been
proved to be bought at the defendant's shop. This practice shows
that it is considered as already proved upon the defendant : for it
could not be read against him, before it had been proved upon him.

If I am mistaken, I am entirely open to alter my opinion, upon
being convinced that it is a wrong one : but, at present, I take this
point to be as much established, as that an eldest son is (in general)
heir to his father. And being evidence prima facie, it stands (if
believed) till contrary' proof is brought to repel it.

Mr. Justice Aston laid down the same maxim as being fully and
clearly established, " That this prima facie evidence (if believed) is
binding till contrary evidence be produced." Being bought in a book-
seller's shop, of a person acting in it as his servant, is such p?'?"?ua/aci6
evidence of its being published by the bookseller himself: he has the
profits of the shop, and is answerable for the consequences. And here
is a corroborating circumstance ; namely, that it professes to be printed
for him. It is as strong a case as could be put. The sale in his shop is
sufficiently proved, and he is answerable for what is done in his shop.
And here is no sort of proof produced in contradiction or exculpation.
This primd facie evidence, not answered, is sufficient to ground a
verdict upon ; and there appears no reason for granting a new trial.
If he had a sufficient excuse, he might have shown and proved it. But
he has not attempted to prove exculpation or excuse ; therefore the
evidence of his publishing what was thus bought in his shop must
stand till the contrary appears. There may indeed be circumstances
of extenuation, or even of exculpation; and if it were a surprise upon
him, the court would have regard to such circumstances, as far as tliey
merited their regard ; but here was no kind of proof, of any sucli sort.

He cited Benjamin Harris's case, in " State Trials," V. 2. pa. 1037.
Rex V. Strahan, H. 3 G. 1, and Rex v. Eliz. Nutt, H. 2 G. 2. Fitz-
Gibbons, 47.

Mr. Justice Willes was also of opinion that there was no foundation
for the motion for a new trial ; and that, upon all the circumstances of
this case, Mr. Almon was answerable as publisher of the libel. He is a
common known bookseller and publisher ; and it imports, upon the
face of it, to be printed for him ; and it was l)ought in his shop.
This is sufficient prima facie evidence of his privity, and no contrary
evidence was produced l)y him. It was liable to be refuted or ex-

432 REX V. MEDLEY. [CHAP. II.

plained ; but as it never was, nor any excuse shown, it stands good to
convict him.

Mr. Justice Ashhurst entirelv concurred with his lordship and the
rest of his brethren, in the doctrine they had laid down, and in
holding that there was not an}- foundation for granting a new trial ;
and he particularly expressed his approbation of Lord Mansfield's
answer to Mr. Mackworth, the juryman.

The Court, therefore, unanimously discharged the rule to show cause
why there should not be a new trial.

RP:X v. medley and others.
Nisi Prius. 1834.

[6 C. ^- P. 292.]

Indictment against the chairman, deputy-chairman, and others of
the directors of the Equitable Gas Compan}', and several persons em-
ployed b}' them in tlie carrying on of the works, for a nuisance. The
first count stated in substance, that, from time whereof the memory of
man runneth not to the contrar}', there had been and still was a certain
ancient river called the Thames, &c., furnishing and affording whole-
some water for the drink, &c. of the inhabitants near it, and producing
an abundant supplv of fish for their food, and also furnishing useful
labor and employment to very man}' fishermen ; and that the defend-
ants, well knowing the premises, on the 10th of October and at other
times, on certain premises occupied by some of them, did from certain
substances produce great quantities of a certain fluid and vapor called
gas, and of coal tar and coke, and unlawfully and injuriously conveyed
and caused to be conveyed, by divers pipes, &c., great quantities of
filth}', noxious, unwholesome, and deleterious liquids, matters, scum, and
refuse, resulting from the making of the said gas, &c., from the afore-
said premises into the said River Thames, whereby the waters became
charged and impregnated with the said liquid, &c., and became corrupted
and insalubrious, and unfit for the use of his Majesty's subjects ; and the
fish in the river were greatly destro3'ed and diminished in number, and
his Majesty's subjects were deprived of the use of them for food, and very
many industrious people, who supported themselves and their families
by catching and selling fish, were deprived of their employment, and
reduced to great povert}' and distress ; to the common nuisance and
grievous injury of his Majesty's subjects, to the evil example &c.,
and against the peace &c.

The second count was similar, except that it omitted the injury to the
fish and the fishermen, and confined the allegation of injury to the cor-
rupting of the water, and rendering it unfit for drink, &c. The third

SECT, v.] REX V. MEDLEV. 433

count was for destrojing and diminishing the number of fish, and
depriving the King's subjects of them as an article of food. The
fourth count was for conveying, and causing and suffering to be drained
and conveyed, great quantities of noisome and offensive liquid matter,
&c., produced from the making of gas, from certain premises into the
stream and water of the Thames, to the great damage and common
nuisance of all the King's sulyects, &c. The fifth count was similar to
the first, except that it omitted the words •' coal tar and coke," and also
the allegation that the premises were used and occupied by some of the
defendants. The sixth count was similar to the second, with the omis-
sions in the fifth. The seventh count was similar to the third, with
the same omissions as the fifth and sixth. The eighth count omitted
the introductory allegations, and charged the defendants with having
conveyed, and caused and procured to oe conveyed, b}' pipes, &c., cer-
tain noxious liquids, produced b3' the making of gas, into the river,
&c. The ninth count also omitted the introductory allegations, and
charged the defendants with having caused, procured, permitted, and
suffered great quantities of filthy and deleterious liquids, &c. to run
and flow into the river, &c.

The defendants pleaded not guilt}".^ . . .

From the evidence of the secretar\' and some of the persons who
had been in the employ of the company, who were called to fix the
several defendants, it appeared that the company was established in
1830, and began to supph* gas in 1831 ; that the defendant Medley
was chairman ; the defendant Treherne, deputy chairman ; the de-
fendant Leadbeter, the superintendent; the defendant Hines, the gas
engineer ; and the defendants Bell and Simmons, clerks in the estab-
lishment ; — that an endeavor was made to consume the refuse gas by
evaporation, which failing, the plan complained of was adopted. The
secretary stated on his cross-examination that he believed the directors
had not the slightest idea of the new mode adopted, but left it all to
the management of Leadbeter, who directed Hines the engineer, who
gave orders to the rest of the workmen. He also stated, that, from
the improved state of the works, the acts complained of were not
likely to occur again. A prospectus was put in, in which the directors
referred to the great experience of Mr. Leadbeter as a pledge for the
proper management of the works. . . .

Campbell, S. G. for the prosecution.

Sir J. Scarlett, for the defendants.

Denman, C. J., in summing up, said : This is an indictment which
charges the defendants with conveying by certain pipes into the river
a certain deleterious ingredient, whereby the waters were corrupted and
rendered unfit for human food, and, also, whereby the fish were dimin-
ished in number, and the fishermen thrown out of employ. With re-
specie to the fishermen being thrown out of emplo}', I ought to lose no

^ Facts not bearing on Agency are omitted. — Ed.
28

434 REX V. MEDLEY. [CHAP. II.

time in informing 3011, tliat will not of itself be ground for an indict-
ment, as, if it were sutticient, every successful speculation in trade
might be the subject of a prosecution. The question of what is a
nuisance is, as is evident, a question for the jury in each particular
case. The words of the indictment convey the law upon the subject
as well as any person sitting here can do. The question will be, whether
there has been a noxious and deleterious ingredient conveyed into the
river, whereby the water has been corrupted and rendered unfit for use ;
and if there has been, then whether, in the concluding words of the
indictment, it was to the common nuisance of the King's subjects. If
you think that this has been done, and that it was conveyed from the
premises of the defendants, then you will find them guilty. The dimi-
nution of the number of fish took place before this establishment, and
there were also other causes contributing to it. The second question
you will have to consider will be, which of the defendants are guilty of
the nuisance. As to Hines, if you are satisfied that a nuisance has
been committed, no doubt you must find him guilty. It is said that the
directors were ignorant of what had been done. In my judgment that
makes no difference ; provided you think that they gave authority to
Leadbeter to conduct the works, the}^ will be answerable. It seems to
me both common sense and law, that, if persons for their own advan-
tage employ servants to conduct works, the}' must be answerable for
what is done by those servants. It is quite clear, that in great rivers
of this sort there must be many inconveniences, arising from a variety
of causes ; and the question, therefore, will be, whether there has been
produced by the special acts of this company that which you consider
to amount to a nuisance. With respect to copper-bottomed vessels, it
seems to me that a great number of trifling objects may produce a
deleterious effect, though the individual instances maj' not be the sub-
ject of indictment. In the present case, you will say whether these
particular individuals have done an act to the common nuisance of the
King's subjects.

Verdict : — Guilty, against the chairman, deputy chairman, super-
intendent, and engineer ; and not guilty as to the other defend-
ants.

Campbell, S. G., Law, Recorder, 3Iirehouse, C. S., Follett and Bullock^
for the prosecution.

Sir J. Scarlett, Adams, Serjt., and Kelly, for the defendants.

A motion for judgment on the parties convicted was made in the
course of Trinity Term,^ before Lord Dexman, C. J., Littledale,
Taunton, and Williams, J J.

Affidavits were read from the defendants, Medle}' and Treherne, in
which thej" stated that no complaints had been made to them at any
time respecting the management of the works, nor were they at all

1 The personal attendance of the defendants was dispensed with by consent. — Rep.

SECT, v.] COMMONWEALTH V. NICHOLS. 435

aware of the nuisance complained of until tlie iudictment was pre-
ferred ; and all four defendants swore that the nuisance had been
wholly abated by the establishment of an adequate system of evapo-
ration.

Sir '/, Scarlett, Adams, Serjt., and Kelly, were heard in mitigation ;
and Campbell, A. G., and Bullock, in aggravation of punishment.

LiTTLEDALE, J., In giving judgment, said: The Court have to
pronounce judgment in this case of the King against William Medley,
Edmund Treherne, Richard Leadbeter, and Edward Hines, for a nui-
sance ; which is stated to have been committed bj' conveying very large
quantities of noisome liquids, arising from the manufacture of gas. into
the river Thames, whereby the water was rendered insalubrious and the
fish destroyed. It has been proved, that the water was not only ren-
dered improper for domestic purposes, but that a great quantity of fish
was actually destroyed by being poisoned. Now, we think, under all
the circumstances, that this is not a matter to be passed over mereh' b}'
the infliction of a nominal fine. At the same time, as no complaint has
been made since this indictment was preferred, we do not think it neces-
sary to visit the offence of these defendants with severe punishment.
Under all the circumstances of the case, tlie Court doth adjudge that
the defendants, William Medley and Edmund Treherne, the one being
the chairman and the other the deputy-chairman of this compan}*,
which is called " The Equitable Gas Company," do pa}- a fine of
£25 each to the King ; and that the other defendants, Richard Lead-
beter and Edward Hines, the one the general superintendent of these
gas-works, and the other the engineer, having also some part of the
direction of the works confided to him, do each of them pay a fine
of £10.1

COMMONWEALTH v. NICHOLS.
Supreme Judicial Court of Massachusetts. 1845.

[10 Met. 259.]

At the trial of the defendant, in the Court of Common Pleas, before
CusHiNG, J., upon an indictment on Rev. Sts. c. 47, § 2, for selling
spirituous liquor without license, a witness testified that he called at a
grocery shop in Lowell, kept b}' the defendant ; that the defendant
was not present, but that he found a man there who sold him a glass
of spirituous liquor, to be used in the shop ; but that he did not know
whether the man was in the defendant's emplo}- or not. Another

1 Ace: Eegina v. Stephens, L. R. 1 Q. B. 702 (1866), s. c. Beale's Cas. Cr. Law,
845. Compare Chisholm v. Doulton, 22 Ch. T). 7.36, 740 (1889). See also The King
V. Dixon, 3 M. & S. 11 (1814); aud Commonwealth v. Kellev, 140 Mass. 441 (1886)
—Ed.

436 COMMONWEALTH V. NICHOLS. [CHAP. IL

witness testified that he knew the shop kept by the defendant, and
that the defendant had a clerk in his employ ; that he (the witness)
once went to said shop, to purchase groceries, when the clerk alone
was there, and that, after he had made his purchases, he went to a
cask, drew a glass of liquor, and drank it, but did not pay for it, and
was not charged for it, to his knowledge. On cross-examination, this
witness said he had heard the defendant expressly forbid his clerk to
sell any spirituous liquor in a less quantity than twentj'-eight gallons.

The defendant's counsel requested the judge to instruct the jury, that
if they doubted, upon the whole evidence, whether these sales were
made by the authority of the defendant, or by his consent, the}- must
acquit him. But the judge declined so to do, and instructed the jury,
that if the}' were satisfied, beyond a reasonable doubt, that the sales
were made by the defendant, or an}* person in his employ, and in his
shop, they would be warranted in finding him guilty. The jury found
the defendant guilt}', and he alleged exceptions to the instructions.

£. F. Butler, for the defendant.

Mellen, for the Commonwealth.

Dewey, J. The question here raised as to the liabilit}' of the prin-
cipal to be punished criminall}- for the acts of his agent or servant, in
which he does not directly participate personall}', is certainly not free
from diflJicult}'. As to civil liabilities, a broader and more general
principle of responsibilit}' applies, and the master or principal ma}- be
held to answer in damages for default and misdoings with which he
had no other connection than that which arises from the fact that the
injury was occasioned b\' one emploj'ed in his service. As a general
rule, something beyond this is necessary to charge the master crimi-
nally for acts done b}- the servant. There must be such a direct parti-
cipation in the act, or such assent and concurrence therein, as would
involve him morally in the guilt of the action. Hence the cases are
comparatively rare, and may be considered as exceptions to the
general rule, where b}' legal rules a party is charged criminall}' for acts
of his servant done without his knowledge and assent. The case of a
bookseller, or publisher of a newspaper, is to some extent one creating
such liability ; to what precise extent is, perhaps, j'et an unsettled
question. Rex v. Almon, 5 Burr. 2686, a leading case on that subject,
only carried the doctrine so far as to hold that such relation to the act
of sale by a servant -^^is prima facie evidence to establish the liabilit}'
of the party, but was not conclusive and might be controlled. It was
said by Lord Mansfield that he might avoid the efl'ect of it by showing
"that he was not privy nor assenting to it, nor encouraging it." So
also it is said that the defendant, in such cases, may rebut the pre-
sumption by showing that the libel was sold contrary to his orders, or
under circumstances negativing all privity on his part. 2 Stark, on
Slander, (2d ed.) 34.

The general rule, however, has been stated, I think, somewhat more
broadly as to the liability of booksellers and publishers, respecting all

SECT, v.] COMMONWEALTH V. NICHOLS. 437

publications issued from their establishments in the regular course of
business ; and tliey have been held answerable criminally in such cases,
although the particular act of sale or publication was done without
their knowledge. 1 Hawk. c. 73, § 10; Rex v. "Walter, 3 Esp. R. 21.
In the recent case of Rex v. Gutch & others, 1 Mood. & Malk. 437,
where it appeared that Gutch was residing at a distance, was in ill
health, and not interfering with the conducting of the paper, the rule
is thus stated : "A person who derives profit from, and who furnishes
means for carrying on the concern, and intrusts the conduct of the
publication to one whom he selects, may be said to cause to be pub-
lished wliat actually appears, and ought to be answerable, although
3'ou cannot show that he was individually concerned in the act of
publication." But in that case, Lord Tenterden, in delivering the
opinion of the court, says, "I do not mean to say, that some possible
case ma}' not occur, in which he would be exempt ; but generally
speaking, he is answerable."

Another class of cases, where the liabilit}', of the master for the
criminal acts of the servant has been recognized, has arisen under
revenue laws and police regulations. In Attorney General v. Siddon,
1 C'rompt. & Jerv. 220, and 1 Tyrw. 41 (a case of concealing smuggled
goods), it was held that a trader is liable to a penalty for the illegal
act of a servant, done in the conduct of his business, with a view to
protect the smuggled goods, though the master be absent at the time
the act is done. It seems here again to have been held only ^>/'rw<x
facie evidence, and that the master might have introduced evidence
for the purpose of rebutting such prima facie case.

In Attorney-General v. Riddle, 2 Crompt. & Jerv. 493, and 2 Tyrw.
523, which was an information under St. 1 Geo. 4, c. 58, prohibiting
the delivery of paper not tied up and labelled, and requiring, before it
is removed from the place of manufacture, that it be enclosed in a
labelled wrapper, the evidence was, that the wife of the defendant,
having authority from him to do certain acts in his trade of a paper
manufacturer, pledged paper which had no wrapper or label on it, the
court held that the authority of the wife was a question for the jury,
and that it ought to have been left to the jury to decide whether or
not the acts of the wife, under the circumstances stated, were done
by the authority of the husband.

It seems to us that the case of a sale of liquors prohibited b}" law,
at the shop or establishment of the principal, by an agent or servant
nsualh" emploN'ed in conducting his business, is one of that class in
which the master ma}' properly be charged criminally for the act of
the servant. But in looking at the question presented by the bill of
exceptions in the present cases, and considering what should be stated
as the rule as to the responsibility of the principal or master in such
cases, the court have come to the opinion that the law was stated too
strongly, upon that point, against the defendant, inasmuch as the
defendant, under the instructions given, might have been found guilty

438 COMMONWEALTH V. NICHOLS. [CHAP. IL

of the charge in the indictment, if a sale had been made in his shop by
an}' person in his employment, without any reference to the circum-
stances under which the sale was made, and although against the will
and in contravention of the orders of the defendant.

We think that a sale b}' the servant, in the shop of tlie master, is
on\y prima facie evidence of such sale by the master as would subject
him to the penalty for violating the statute forbidding the sale of
spirituous liquors without license ; that the relation of these parties,
the fact that the defendant was in possession of the shop and was the
owner of the liquor, and that the sale was made by his servant, furnish
strong evidence to authorize and require the jury to find the defendant
guilty. But we cannot sa}' that no possible case can arise in which
the inference from all these facts may not be rebutted by other proof.
Unexplained, they would be sufficient to convict the party. So too it
should be understood that merely colorable dissent, or a prohibition
not to sell, however publicly or frequenth' repeated, if not made bona
fide, will not avail. But if a sale of liquor is made by the servant
without the knowledge of the master, and reall}' in opposition to his
will, and in no way participated in, approved, or countenanced by him,
and this is clearly shown by the master, he ought to be acquitted.

JVew trial granted.^

1 Ace. : Barnes v. The State, 19 Conn. 398, 400-401, 405-407 (1849) ; The State v.
Smith, 10 R. I. 258 (1872) ; Anderson v. The State, 22 Ohio St. 305 (1872) ; Common-
wealth V. Stevens, 153 Mass. 421 (1891) ; The State v. McCance, 110 Mo. 398 (1892).
Compare George v. Gobey, 128 Mass. 289 (1880).

" It would require a clear expression of the will of the Legislature to justify a
construction of a penal statute which would expose an innocent man to a disgraceful
punishment for an act of which he had no knowledge, which he did not in any way
take part in or authorize, but which he had forbiihleu." Per Mokton, C. J., in Com-
monwealth V. Wachendorf, 141 Mass. 270 (1886).

" It is a general principle of our criminal law that there must be as an essential
ingredient in a criminal offence some blameworthy condition of mind. Sometimes it
is negligence, sometimes malice, sometimes guilty knowledge, — but as a general rule
there must be something of that kind which is designated by the expression mens rea.
Moreover, it is a principle of our criminal law that the condition of mind of the
servant is not to be imputed to the master. A master is not criminally responsible
for a death caused by his servant's negligence, and still less for an offence depending
on the servant's malice ; nor can a master be held liable for the guilt of his servant
in receiving goods knowing them to have been stolen. And this princi])le of the com-
mon law applies also to statutory offences with this difference, that it is in the power
of the Legislature, if it so pleases, to enact, and in some cases it has enacted, that a
man may be convicted and punished for an offence although there was no blame-
worthy condition of mind about him ; but, inasmuch as to do so is contrary to the
general principle of the law, it lies on those who assert that the Legislature has so
enacted, to make it out convincingly by the language of the statute ; for we ought not
lightly to presume that the Legislature intended that A. should be punished for the
fault of B." Per Cave, J., in Chisholm v. Doulton, 22 Ch. D. 736, 741 (1889). — Ed.

SECT, v.] COMxMONWEALTH V. MORGAN. 439

COMMONWEALTH v. MORGAN et al.
Supreme Judicial Court oe Massachusetts. 1871.

[107 iMass. 199.]

Indictment, in Suffolk, against Albert Morgan and James N. Smart,
alleging that the}' "did unlawfully and maliciousl}' compose, write,
print, and publish, and cause to be composed, written, printed, and pub-
lished in a certain newspaper, printed and published at Boston in said
count}' of Suffolk b}- said Morgan and Smart, to wit, the Saturday
Evening Express," two libels against Chaunce}- C. Dean, the first at
Boston on September 11, 1870, and the second at Boston on September
18, 1870. The indictment set forth the libels, which charged "State
Cop. Dean" with having acted, while a soldier in the array, in a man-
ner to indicate cowardice, and with having been drunk while on duty
as a deputy of the constable of the Commonwealth. The district
attorney entered a nolle prosequi as to Smart. ^ . . .

The defendant offered evidence tending to show that he never saw
the libel of September 18, or was aware of its publication, until it was
pointed out to him by a third person, and that an apology for and
retraction of the statements therein contained was subsequently pub-
lished in the Saturday Evening Express ; but the judge excluded the
evidence as immaterial.

The defendant was called b}- his counsel as a witness, for the purpose
of showing that he had never seen the libels until they were pointed
out to him, and was asked on cross-examination whether he was not
the publisher of the Saturday" Evening Express. He objected to an-
swering, on the ground that his answer might criminate him ; but the
judge overruled the objection, and he answered tliat he was the sole
publisher, and that the paper was not published by himself and
Smart. . . .

Dean testified that he bought copies of the Saturday Evening
Express containing the libels at newspaper-stands in Boston ; and
these copies were put in evidence. One of them was dated on the first
page, Saturday, September 10, and the other Saturday, September 17;
but on the third page of each were two columns headed " Sunda}'
Morning, September 11," and " Sunday Morning, September 18," re-
spectively, and it was in these two columns that the libels were printed.

The defendant requested a ruling that this evidence as to publication
would not support the indictment ; but the judge declined so to rule,
and ruled " that it was not necessar}' to prove the day when published,
provided the publication was within the statute of limitations, and the
proof that the papers were purchased at the time testified to by Deaa
was sufficient evidence."

^ The statement and the opinion have been abbreviated by omitting matters no|
pertaining to Agency. — Ed.

440 COMMONWEALTH V. MORGAN. [CHAP. II.

The jiir}- returned a verdict of "- Guilty as to publishing, but not
guilt}' as to the rest ; " and the clerk adiriued and recorded the verdict
in the following form : '' Guilty of publishing as alleged in the indict-
ment, and not guilty as to the residue." After verdict the defendant
moved in arrest of judgment, on the ground "that he had not been
convicted of any offence at law," but the motion was overruled ; and he
alleged exceptions.

J. W. Mahan, for the defendant.

C. Allen, Attorney General, for the Commonwealth.

Colt, J.^ 4. The defendant then offered to prove that he had
never seen the alleged libel, and was not aware of its publication till it
was pointed out to hira by a third party ; and that an apology and re-
traction was subsequently published in the same newspaper.

When a libel is sold in a bookseller's shop, by a servant of the book-
seller, in the ordinary course of his employment ; or is published in a
newspaper ; the fact alone is sufficient evidence to charge the book-
seller, or the proprietor of the newspaper, with the guilt of its publica-
tion. This evidence, by the earlier English decisions, was held not to
be conclusive, but the defendant was permitted to show, in exculpa-
tion, that he was not privy, nor assenting to, nor encouraging, the
publication. See 1 Lead. Crim. Cas. 145 ; notes to Rex v. Almon, 5
Burr. 2686. Afterwards, such evidence was held conclusive, upon the
ground that it was necessary to prevent the escape of the real offender
behind an irresponsible part}-. Rex w. Gutch, Mood. & Malk. 433;
Rex V. Walter, 3 Esp. 21. In both these cases, the defendants offered
to show, that they were perfectly innocent of any share in the criminal
publication, and that, although proprietors of the papers, they were
living at a distance from London, the place of publication, taking no
share in the actual publication, and in one case confined by illness
when the paper complained of appeared. It was ruled by Lord Ken-
yon and Lord Tenterden to be no defence. But now, by a recent
English statute, a defendant is permitted to prove that such publication
was made without his authority, consent, or knowledge, and did not
arise from want of due care or caution on his part. St. 6 & 7 Vict,
c. 96.

The rule thus made positive law is in strict accordance with those
just principles which ought to limit criminal liability for the acts of an-
other, and which have been recognized in the decisions of this court.
Criminal responsibility on the part of the principal, for the act of his
agent or servant in the course of his employment, implies some degree
of moral guilt or delinquency, manifested either by direct participation
in or assent to the act, or by want of proper care and oversight, or
other negligence in reference to the business which he has thus en-
trusted to another. The rule of civil liability is broader, and the prin-
cipal must respond in damages for the default or tortious act of the

1 See OH/e. p 4.39, n. (1). — Ed.

SECT, v.] COMMONWEALTH V. MORGAN. 441

agent or servant in his employment, although he had no knowledge of
it, or had actually forbidden it in advance and exercised due care to
prevent it.

In Commonwealth v. Nichols, 10 Met. 259, it was held that a shop-
keeper is criminally liable for an unlawful sale of spirituous liquor in
his shop, made with his assent by a servant or agent employed in his
business. But such sale is only prma yacie evidence of assent. And
it was said that " if a sale of liquor is made by the servant without the
knowledge of the master, and really in opposition to his will, and in
no way participated in, approved, or countenanced by him, and this is
clearly shown by the master, he ought to be acquitted." It is to be re-
marked with reference to this case, that the question whether the sale
was really against the defendant's will is for the jury upon all the
evidence, and that the facts that the profits of the business were re-
ceived by the defendant, and that there was an absence of proper pre-
cautions to prevent the illegal traffic, would justifv an inference of his
approval.

In The King v. Dixon, 3 M. «&; S. 11, the defendant was convicted
of selling unwholesome bread, upon proof that his foreman had b}'
mistake put too much alum in it. There was no evidence that the mas-
ter knew of the quantity used in this instance. But Bayle}', J., said,
" If a person employed a servant to use alum, or an}- other ingredient,
the unrestricted use of which was noxious, and did not restrain him in
the use of it, such person would be answerable if the servant used it to
excess, because he did not appl}' the proper precaution against its
misuse."

It is the duty of the proprietor of a public paper, which may be used
for the publication of improper communications, to use reasonable
caution in the conduct of his business, that no libels be published. He
is civilly responsible for the wrong, to the extent indicated ; and he is
criminall}' liable, unless the unlawful publication was made under such
circumstances as to negative any presumption of privit}', or connivance,
or want of ordinary precaution on his part to prevent it. 3 Greenl.
Ev. §§ 170, 178.

We are of opinion that the offer of the defendant did not go far
enough, in view of the law thus stated, to' rebut the presumption of
guilt arising from the publication of this libel. The facts offered may
be true, and yet entirely consistent with the fact that the conduct of
the newspaper was under his actual direction and charge, at a time
when he was neither absent from home nor confined by sickness, and
when his want of knowledge would necessarily imply criminal neglect
to exercise proper care and supervision over the subordinates in his
employ. It is consistent also with such information in this instance, in
regard to the proposed libellous attack, as should have put him on
inquiry ; and with the fact that the general management of tlie paper
was of such a character as to justify the inference that the defendant
approved of or connived at publications of this description, and had

442 PEOPLE V. ROBY. ][CHAP. II.

given his general assent to them. Under such circumstances, the de-
fendant ought not to be permitted to escape on the plea that he had
not seen the particular article and did not know of its publication.

As to the evidence offered of a subsequent apolog}' and retraction,
the answer is that it is onlj' a matter in mitigation of sentence. The
crime is not purged by it. . . . Exceptions overruled.

THE PEOPLE V. ROBY.
Supreme Court of Michigan. 1884.

[52 Mick. 577.]

Complaint for keeping saloon open on Sunday. Conviction affirmed.

Jacob J. Van Hiper, Attorne3'-General, for the People.

Jacob V. Rogers, for respondent appellant.

CooLEY, C. J. The respondent, who is keeper of a hotel in the
village of Plainwell, in which there is a bar for the sale of spirituous
and malt liquors, was prosecuted and convicted for not keeping his
bar closed on Sunday, May 6, 1883. The evidence was that on the
morning of that day the clerk of the hotel was in the bar-room and had
a servant with him scrubbing it out when a person came in from the
street. He appeared to be known to the clerk, who told him he
did not want him there Sundays. The man said he wanted some
whisky. The clerk told him he must get his whisky Saturday night.
After some more words between them the clerk told him if he was
going to get the whisky to get it and get out as soon as he could.
He got the whisky, handed pay for it to the servant, and went off.
The respondent was not at the time present. The clerk testifies that
he was somewhere about the house, but he thought he was not up yet ;
the servant says he was about there shortl}' afterwards. There was
no evidence in the case to show that respondent assented to the open-
ing of the bar on that da}', or expected or desired that it should be
opened ; neither was there any evidence to the contrarj'. He was not
a witness on his own behalf.

The case comes to this court on writ of error, and the only question
of importance is whether there was any evidence to be submitted to
the jury.

The statute under which the conviction was had provides that " all
saloons, restaurants, bars, in taverns or elsewhere, and all other places
where an}- of the liquors," etc. " may be sold, or kept for sale, either
at wholesale or retail, shall be closed on the first day of the week,
commonly called Sunday," etc. How. St. § 2274 ; Public Acts, 1881,
p. 3.")0.

SECT, v.] PEOPLE V. KOBY. 443

It will be observed that the reqiiirement that the saloons and other
places mentioned shall be closed is positive. The next section of the
statute provides that any person who shall violate this, among other
provisions, shall be deemed guilt}' of a misdemeanor, and shall be
punished as therein prescribed. In terms, then, the penalties of the
statute are denounced against the person whose saloon or other place
for the sale of intoxicating drinks is not kept closed, and no other fact
is necessar}' to complete the offence-
It is contended, nevertheless, that to constitute an offence under the
section referred to, there must be some evidence tending to show an
intent on the part of the respondent to violate it ; and People v. Parks,
49 Mich. 333, which was a prosecution under another section of the
same statute, is cited as authorit}'. It should be said of that case that
the facts are not fully given in the report, and that there was positive
evidence in the case to negative the intent in the respondent that the
criminal act should be committed. But the case is plainly distinguish-
able from this. The section under which Parks was prosecuted makes
not only the proprietor, but his clerks, agents, etc., individually liable
for the conduct prohibited, and imposes upon them severally the duty
to abstain from it. The section under which Roby is prosecuted makes
the crime consist, not in the affirmative act of any person, but in the
negative conduct of failing to keep the saloon, etc., closed.

I agree that as a rule there can be no crime without a criminal
intent ; but this is not by any means a universal rule. One may be
guilt}' of the high crime of manslaughter when his only fault is gross
negligence ; and there are many other cases where mere neglect may
be highh' criminal. Many statutes which are in the nature of police
regulations, as this is, impose criminal penalties irrespective of any
intent to violate them ; the purpose being to require a degree of
diligence for the protection of the public which shall render violation
impossible. Thus, in Massachusetts a person may be convicted of
the crime of selling intoxicating liquor as a beverage, though he did
not know it to be intoxicating, Commonwealth y. Boynton, 2 Allen,
160 ; and of the offence of selling adulterated milk, though he was
ignorant of its being adulterated. Commonwealth v. Farren, 9 Allen,
489 ; Commonwealth v. Holbrook, 10 Allen, 200 ; Commonwealth v.
Waite, 11 Allen, 264; Commonwealth v. Smith, 103 Mass. 444. See
State V. Smith, 10 R. I. 258. In Missouri a magistrate may be liable
to the penalt}' for performing the marriage ceremony for minors with-
out consent of parents or guardians, though he may suppose them
to be of the proper age. Beckham v. Nacke, 56 Mo. 546. Where the
kiUing and sale of a calf under a specified age is prohibited, there ma}^
be a conviction though the party was ignorant of the animal's age.
Commonwealth v. Raymond, 97 Mass. 567. See The King v. Dixon,
3 M. & S. 11. In State v. Steamboat Co., 13 Md. 181, a common
carrier was held liable to a statutory penalty for transporting a slave
on its steamboat, though the persons in charge of its business had no

444 PEOPLE V. KOBY. fcHAP. II.

knowledge of the fact. A ease determined on the same principle is
Queen v. Bishop, 5 Q. B. Div. 259. If one's business is the sale of
liquors, a sale made b}' his agent in violation of law is prima facie by
his authoritj^, Commonwealth v. Nichols, 10 Met. 259 ; and in Illinois
the principal is held liable, though the sale b}' his agent was in viola-
tion of instructions. Noecker v. People, 91 111. 494. In Connecticut
it lias been held no defence in a prosecution for selling intoxicating
liquor to a common drunkard that the seller did not know him to be
such. Barnes v. State, 19 Conn. 398. It was held in Faulks v. People,
39 Mich. 200, under a former statute, that one should not be con-
victed of the offence of selling liquors to a minor who had reason to
believe and did believe he was of age ; but I doubt if we ought so to
hold under the statute of 1881, the purpose of which ver}" plainly' is, as
I think, to compel every person who engages in the sale of intoxicating
drinks to keep within the statute at his peril. There are man}' cases
in which it has been held under similar statutes that it was no defence
that the seller did not know or suppose the purchaser to be a minor ;
State V. Hartflel, 24 Wis. 60 ; McCutcheou v. People, 69 111. 601 ; Far-
mer u. People, 77 111. 322 ; Ulrich v. Commonwealth, 6 Bush, 400 ; State
V. Cain, 9 W. Va. 559 ; Commonwealth v. Emmons, 98 Mass. 6 ; Red-
mond V. State, 36 Ark. 58 ; and in Commonwealth v. Finnegau, 124
Mass. 324, the seller was held liable, though the minor had deceived
him b}' falsel}" pretending he was sent for the liquor by another person.
So a person has been held liable to a penalty for keeping naphtha for sale
under an assumed name, without guilty knowledge ; the statute not mak-
ing such knowledge an ingredient of the offence. Commonwealth v.
Wentworth, 118 Mass. 441. Other cases might be cited, and there is
nothing anomalous in these. A person ma}- be criminally liable for
adultery with a woman he did not know to be married, Fox v. State,
3 Tex. App. 329 ; or for the carnal knowledge of a female under ten
years of age though he believed her to be older. Queen v. Prince,
L. R. 2 Cr. Cas. 154 ; State y. Newton, 44 la. 45. And other similar
cases might be instanced.

If intent were necessary to be found I should be of opinion there was
enough in the case to warrant its submission to the jury. The bar was
opened on Sunda}' by respondent's servants and on his business while
he was about the premises. The purpose for which it was opened was
immaterial ; the offence was committed by opening it for cleaning as
much as it would have been by opening it for the sale of liquors.
People V. Waldvogel, 49 Mich. 337. But the statute requires the
proprietor at his peril to keep the bar closed. The purpose in doing so
is that persons shall not be there within the reach of temptation.
This respondent did not keep his bar closed, and he has therefore dis-
obe3'ed the law. And he has not only disobe3ed the law, but the evil
which the law intends to guard against has resulted ; that is to say,
there has been, either with or without his assent, -^ it is immaterial

SECT, v.] COMMONWEALTH V. BRIANT. 445

which, — a sale of intoxicating liquors to a person who took advantage
of the bar being open to enter it.

I think the Circuit Court should proceed to judgment.

Sherwood and Champlin, JJ., concurred.^

Campbell, J. In this case the charge of the judge was properl}'
guarded as to the necessity of showing complicit}' of respondent in the
act charged against him, and as to the presumption of his innocence.
But in my opinion the rules he laid down were inconsistent with the
sufflcienc}' of the facts to sustain a conviction. I think this conviction
can only be maintained on the principle that an agent appointed for
a confessedly legal purpose is presumed to be authorized to act
illegally. I can see no reason why such presumption should be lawful
in one case and not in another. In all crimes the presumption of
innocence must be the same. The charge here is distinctly criminal,
and while tlie offence is one of importance to the public order, I think
that tlie decisions which set up exceptional rules of evidence to prove
it are of dangerous tendency and would not be safe precedents.

COMMONWEALTH v. BRIANT.
Supreme Judicial Court of Massachusetts. 1886.

[142 Mass. 463.]

Holmes, J. This is a complaint for unlawfully selling intoxicating
liquors to a minor. The court assumed that the case was governed by
Commonwealth v. AVachendorf, 1-il Mass. 270 ; and instructed the jury
that a sale by the defendant's bar-tender might be explained b}' show-
ing that it was not authorized by the master, or was done in violation
of his orders and against his will.

On the question of authority, the defendant asked for a ruling that
" agency for any other purpose will not warrant a presumption or in-
ference of agency illegall}' to sell liquor." The -court refused the rul-
ing ; and instructed the jur}', in substance, that a sale of intoxicating
liquors b}' a bar-tender in his master's shop, and in the regular course
of his master's lawful business, is prima facie a sale by the master,
although the sale is an illegal sale, but that such a sale may be ex-
plained bj' showing that it was not authorized. Even if the ruling re-
quested was wrong, we think the instruction given went too far in an
opposite direction. For, although we should admit that a jury might
be warranted in inferring that such a sale was authorized, it would not
follow that a court could rule that there is a presumption of fact that
it was so, which is the purport of the instruction fairly construed. The

1 Ace. : The State v. Kittelle, /lO N. Cur. 560 (1892). — Ed.

446 COMMONWEALTH V. BRIANT. [CHAP. II.

proposition that tliere is evidence for tlie jury to consider, is not identical
with the proposition that the evidence, if believed, raises a presumption
of fact. The proposition that there is evidence to be considered im-
ports that there may be a presumption of fact. But generallj' it must
be left to the jury to sa^' wlietlier there is one, and in many cases that
is the main question which they have to decide.

The facts that a man employs a servant to conduct a business ex-
pressly authorized by statute, and that the servant makes the unlawful
sale in the course of it, do not necessarily overcome the presumption
of innocence merel}' because the business is liquor selling, and may be
carried be3'ond the statutorj- limits. See Commonwealth v. Putnam,
4 Gray, 16 ; Commonwealth v. Dunbar, 9 Gray, 298.

It is true that a master would be liable civilly for such a sale as sup-
posed in the instruction, but his civil liability exists even when he pro-
hibited the sale, and therefore it does not stand upon a presumption
that he authorized the sale, but upon the general ground for a master's
liability for the unauthorized torts of his servants, wliatever that may
be. George v. Gobey, 128 Mass. 289; Roberge v. Burnham, 124
Mass. 277; Pub. Sts. c. 100, § 24. See Byington v. Simpson, 134
Mass. 169, 170.

Commonwealth v. Holmes, 119 Mass. 195, cited for the prosecution,
went no farther than to decide that evidence that the defendant's son
and clerk sold intoxicating liquors in a public house kept by the de-
fendant was evidence of a sale b}' the defendant, sufficient to be sub-
mitted to a jur}'. See also Commonwealth v. Edds, 14 Gra}', 406.
Nothing was said as to a presumption of fact. The evidence, too,
was stronger than in the case at bar ; for there the defendant set up no
license, any sale was unlawful, and the question was whether the de-
fendant gave authority to his clerk to sell at all. It might well be
thought that the clerk would hardly undertake to sell in the way of
business in his employer's house without some authority. But it is
obviously much more likel}' that a servant emplo3'ed to make lawful
sales should occasionally go beyond his authority, which he might do
by mistaking a minor for an adult, than that he should go into a wholly
unauthorized business*.

Commonwealth v. Nichols, 10 Met. 259, probably suggested the rul-
ing of the court, and is perhaps a little nearer the case at bar than
Commonwealth v. Holmes, as the defendant seems to have sold liquors
at wholesale, and to have employed his clerk in that business, although
not licensed to sell at retail. The court, in sustaining the defendant's
exceptions, said that a sale at retail by the clerk was ' ' onl}' prima
facie evidence " of a sale by the master. It hardl}^ said, and could
not have decided, that such a sale was prima facie a sale bj' the
master, or that it raised a presumption of fact. Moreover, if it were
held that there was such a presumption of fact in cases like Common-
wealth V. Holmes and Commonwealth v. Nichols, it would not follow
that there was the same presumption in the present case, still less that

SECT. VI.] FAIKLIE V. HASTINGS. 447

It was so plain that the jury could be instructed to act on it. Such pre-
sumptions are questions of fact and of degree.

Exceptions sustained.^

J. R. Thayer, for the defendant.

E. J. SJterman^ Attorney-General, for the Commonwealth.

SECTION VI.

Admissions.

FAIRLIE V. HASTINGS.

Chancery. 1803.

[10 Ves. Jr. 123.]

The Master of the Rolls.- The subject of this cause is a loan
of money b}' the late plaintiff Maha Rajah Nobkissen to the defendant.
As it is not by bill in equity that mone}" lent is to be recovered, it is
incumbent upon the plaintiff to state, and to prove, some ground for
coming into this court for the payment, or the means of obtaining pay-
ment of his demand. The question of jurisdiction must depend upon
the allegations of the bill ; which states, that the defendant applied
to the plaintiff for the loan of three lacks of rupees upon the securit}' of
the defendant's bond ; that the plaintiff agreed to advance that sum
by instalments ; that a bond was executed, which it was agreed should
remain with Caunto Baboo, an agent of the defendant, until the whole
money should be advanced, and then should be delivered to the plain-
tiff; that the money was advanced, but the plaintiff never received
the bond ; Caunto Baboo in answer to his repeated applications at
length informing him, that it had been delivered up to the defendant.

1 " The evidence was, that a lottery office was kept in a house rented by Gillespie,
. . . under a sign in the name of Gillespie's lottery office ; that Gregory, a young lad,
acted as his servant or agent in that office, and sold the ticket . . . indorsed in the
name of Gillespie ; . . . tliat Gillespie occasionally visited Philadelphia. I did not
instruct the jury, that Gillespie was criminally answerable for the act of his agent or
servant, but I left them to decide, whether, from the whole body of the evidence, Gil-
lespie was concerned in the sale of this ticket. The house his ; the boy conducting
business for him as a lottery broker, under his sign ; selling this very ticket as his
agent, and in his name. These were circumstances, from which the jury might infer
his participation in the sale of this ticket ; more especially as, if the boy had been era-
ployed as his agent to sell tickets authorized by the laws of this State, and not tickets
prohibited, a production of his books would establish his innocence. That criminality,
even in acts of the blackest dye, might be made out by circumstantial evidence."
Per Duncan, J., in Commonwealth v. Gillespie, 7 S. & R. 469, 477 (1822). — Ed.

2 Sir William Grant. The reporter's statement is omitted. The bill prayed
tliat the bond might be delivered up, or the money be paid with interest. — Ed.

448 FAIRLIE V. HASTINGS. [CHAP. 11.

In support of this statement the plaintiff has not read, and could not
read, any part of the answer. But the plaintifif has gone into evidence
of declarations by Gobindee Baboo and Caunto Baboo, and the
question is whether these declarations can amount to proof of such
facts as are alleged by the bill. Upon that question my opinion is,
that these declarations do not come within the principle, upon which
they are supposed to be admissible. As a general proposition, what one
man says, not upon oath, cannot be evidence against another man.
The exception must arise out of some peculiarity of situation, coupled
with the declarations made by one. An agent may undoubtedly, within
the scope of his authoritj', bind his principal, by his agreement ; and
in man}' cases b}' his acts. What the agent has said may be what con-
stitutes the agreement of the principal : or the representations or state-
ments made ma}' be the foundation of, or the inducement to, the
agreement. Therefore, if writing is not necessary by law, evidence
must be admitted to prove the agent did make that statement or repre
sentation. So, with regard to acts done, the words with which those
acts are accompanied frequently' tend to determine their quality. The
part}', therefore, to be bound by the act, must be affected by the words.
But except in one or the other of those ways I do not know, how what
is said by an agent can be evidence against his principal. The mere
assertion of a fact cannot amount to proof of it ; though it may have
some relation to the business in which the person making that asser-
tion was employed as agent. For instance, if it was a material fact
that there was the bond of the defendant in the hands of Caunto
Baboo, that fact would not be proved by the assertion that Gobindee-
Baboo, supposing him an agent, had said, there was : for that is no
fact, that is, no part of any agreement which Gobindee Baboo is mak-
ing, or of any statement he is making, as inducement to an agree-
ment. Tt is mere narration ; communication to the witness in the
course of conversation ; and therefore could not be evidence of the
existence of the fact.

The admission of an agent cannot be assimilated to the admission of
the principal. A party is bound by his own admission, and is not
permitted to contradict it. But it is impossible to say, a man is pre-
cluded from questioning or contradicting anything any person has as-
serted as to him, as to his conduct or his agreement, merely because
that person has been an agent of his. If any fact, material to the in-
terest of either party, rests in the knowledge of an agent, it is to be
proved by his testimony, not by his mere assertion. Lord Kenyon
carried this so far as to refuse to permit a letter by an agent to be read
to prove an agreement by the principal ; holding that the agent him-
self must be examined. Maesters v. Abram, 1 f^sp. 375, If the agree-
ment was contained in the letter, I should have thought it sufficient to
have proved that letter was written by the agent ; but, if the letter
was offered as proof of the contents of a pre-existing agreement, then
it was properly rejected. This doctrine was discussed incidentally in

SECT. VI.] FAIKLIE V. HASTINGS. 449

Bauerman v. Radenius, 7 T. R. 663 ; and in that case there is a refer-
ence to another, Biggs v. Lawrence, 3 T. R. 454, in which Mr. Justice
Buller held, that a receipt given by an agent for goods, directed to be
delivered to him, might be read in evidence against the principal.
The counsel in Bauerman y. Radenius state, that the contrary- had been
frequently since held by Lord Kenyon at JVisi Prius, without its hav-
ing ever been questioned. That statement does not appear to have
been denied upon the other side ; and seems to have been acquiesced
in by Lord Kenyon; who said, " That was not the point upon which
the case was argued or determined ; " meaning the point, that such a
receipt could be admitted in evidence.

It will be found, however, that this question can hardly be said to
arise in this case ; when it is considered, what the concern of Caunto
Baboo in this transaction was, and what are the facts, in proof of which
his declaration was offered. Caunto Baboo is stated to have been in
the employment of the defendant. One of the witnesses says, he had
the general management of his pecuniary concerns. But of this par-
ticular transaction he does not appear, either by the bill or the witness,
to have had the management. Upon the whole of the statement and
evidence it does not appear, that Caunto Baboo was concerned in the
negotiation of the loan ; that he was employed as the agent for this
purpose. The statement of the bill represents the defendant himself
to have made the agreement ; therefore any representation of Caunto
Baboo relative to an agreement, not stated to have been made by him,
would not be the statement of an agent ; supposing such statement
was to be admitted in evidence. The plaintiff fails first in showing,
Caunto Baboo was the agent of the defendant. In this case such a
fact as Caunto Baboo is represented to have stated, is matter, not of
admission, but of testimony. A man cannot admit what another has
done, or has agreed to do : but he must prove it. When put upon the
proof, that the defendant made the agreement, it is absurd to say,
Caunto Baboo admitted he made it. In truth he does not admit that
the defendant made it. But, suppose Caunto Baboo distinctly proved
the agent of the defendant, and that he said, he knew the defendant
did make the agreement for this loan, and did promise and undertake to
give a bond for the mone}', and did execute a bond, but gave the bond,
not to the plaintiff, but to the witness, and he gave it back to the de-
fendant, who undertook to calculate the interest, and to give a bond for
the whole ; all this would be no evidence whatsoever of what the defend-
ant had agreed to do or had done, or omitted to do ; and without
evidence of his agreement, or his acts, or his breach of agreement, it is
utterly- impossible to support this bill.

The bill was dismissed.

450 ANDERSON V. SANDERSON. [CHAP. IL

PETO V. HAGUE.
Nisi Prius. 1804.

[5 Esp. 134.]

Debt on statute to recover the penalty' for selling coals, short of
measure, the coals having been sold as Pool measure.

The plaintiff called the coal-meter to prove the transaction, and the
fraud practised in the sale of the coals. The defendant was a coal-
merchant, but his business was conducted by one Peely, who was his
nephew. The witness, in giving his evidence, was proceeding to state
a conversation between him and Peely ; which was, that while the coals
were at the wharf, he asked Peely, whether the coals then lying in the
punt were to be sold b}' wharf or Pool measure ?

Garrow, of counsel for the defendant, objected, that what was said
bj' Peely was not admissible evidence to affect the defendant. That
Peeh' should himself be called ; for, taking him to be even the agent of
the defendant, his declaration could not be evidence, although his acts
might be so.

Lord Ellenborough ruled that it was evidence ; he said, that Peely
appeared to be the manager and conductor of the defendant's business :
what he might have said respecting a former sale made by the defend-
ant, or on another occasion, would not be evidence to affect his master ;
but what he said respecting a sale of coals, then about to take place,
and respecting the disposition of the coals then lying at the wharf,
which were the object of sale, was in the course of witness's emplo}'-
ment for the defendant, and was evidence to affect his master. He
accordingly admitted it.

Verdict for the plaintiff for one penalty.

Erskine and Marryat, for the plaintiff.

Garrow^ for the defendant.

ANDERSON v. SANDERSON.
Nisi Prius. 1817.

IHolt, N. P. .591.]

Assumpsit. The wife of the defendant had bought of the plaintiff
certain goods, which the defendant hawked about the country. All the
articles had been obtained previous to the 3'ear 1810.

The defendant pleaded the general issue, and the statute of limita-
tions. Man}' acknowledgments of the wife were offered in evidence

SECT. VI.] CLIFFORD V. BURTON. 451

for the purpose of taking the case out of the statute.^ On the part of
the defendant it was objected, that the wife could only be considered
as the agent of her husband ; and that the admissions of the agent
could only bind the principal, if made at the time when the goods
were ordered or received by him. That, since the last receipt of
goods was more than six years before the action was brought, the only
admission which, upon the principle above stated, could be given in
evidence, was likewise before that time ; and, therefore, that there
could be no authority in the wife to make an admission which would
take the case out of the statute.

Richards, C. B. The wife was the onl}' person accustomed to pur-
chase goods at all. She was, therefore, the onl\- proper person to ask
for mone}-, and to make admissions on the subject as to the sum due.^

Verdict for plaintiff.

Starkie^ for plaintiff.

Williams and Gilby, for defendant.

CLIFFORD V. BURTON.
Common Pleas. 1823.

[1 Bing. 199.]

In this cause, which was tried before the Lord Chief Baron at the
last Hertfordshire assizes, the plaintiff, in order to substantiate a
demand for goods sold and delivered at the defendant's shop, proved
an admission made by the defendant's wife, who served in his shop,
and carried on the business of it in his absence. The witness applied
to her for £28 16s. ; and the admission consisted in her saying, she
would pa}' it if the plaintiff would allow £10, which she claimed, and
give a receipt in full.

It was objected, that the circumstance of the wife's serving in the
shop was not evidence of such a general agenc}' as would authorize her
thus to settle an account, or the court to receive evidence of such a
transaction, which was altogether separate and distinct from her ser-
vice in the shop.

^ In s. c, 2 Starkie, 204, it is said : "It was proved that the defendant himself was
usually occupied in travelling about the country, for the purpose of vending his cakes
and confectionery, and that his wife conducted the business at home, and had acted
as her husband's agent in buying and selling articles in the way of business ; that
she usually purchased the flour which they used ; the present demand was for flour
to be used in the course of their trade ; under these circumstances, it was contended
on the part of the plaintiff, that the husband had constituted his wife his agent for
the management of his business, and that her admission was suflicient to take the
case out of the statute of limitations." — Ed.

2 Ace: Palethorp v. Furnish, 2 Esp. 511, n. (a) (1783) ; Burt v. Palmer, 5 Esp
145 (1S04); Gregory i>. Parker, 1 Camp. 394 (1808).— Ed.

452 GARTH V. HOWARD AND FLEMING. [CHAP. II.

The evidence having been received, and a verdict found for the
plaintiff,

Taddy, Serjt., now moved for a new trial on the above objection to
the wife's evidence : he contended, that admissions by her in the char-
acter of agent must be confined to the transactions in which she was
immediately employed ; that she had no authority to settle an account
except as part of the res gestae upon the delivery of goods in the shop ;
and that evidence of admissions made upon a separate application for
payment ought to have been excluded. In Emmerson v. Blonden, 1
Esp. 142, and in 1 Str. 527, Anon., the wife was acting within the scope
of her authority, and what she said constituted a part of the authorized
transactions. But a principal is not bound by the representations of
the agent made at a different time. Peto v. Hague, 5 Esp. 134.

But the Court thought there was evidence from which it might be
presumed the wife was acting within the scope of her authority when
she offered to settle a demand for goods delivered at a shop in which
she served, and the business of which she was in the habit of conduct-
ing ; and they Refused the rule.^

GARTH V. HOWARD and FLEMING.

CoMMOx Pleas, 1832.

Detinue for plate. Plea, general issue. At the trial before Tindal,
C. J., it appeared that Howard had, without authority, pawned, for
£200, certain plate belonging to the plaintiff. The defendant, Fleming,
was a pawnbroker ; but the only evidence to show that the plate had
ever been in his possession, was a witness who stated that, at the house
of the plaintiff's attorney, he heard Fleming's shopman say that it was
a hard case, for his master had advanced all the money on the plate at
5 per cent.

This evidence, being objected to, was received, subject to a motion to
this court ; and a verdict having been given for the plaintiff,

A/idreios, Serjt., obtained a rule nisi for a new trial, on the ground,
among other objections, that the declarations of an agent can only be
received in evidence when they have been made in the ordinar}' course
of his employer's business ; and that it is not in the course of a pawn-
broker's business to lend £200 on a single pledge, or at 5 per cent
interest.

Spankie, Serjt., showed cause. The declaration of the sliopraan was
made in the ordinary course of his emplo3'ers business ; for that busi-

1 Compare Stenhouse v. C, C. & A. Railroad Co., 70 N. Car. 542 (1874). — Ed.

2 s. c. 1 Moo. & S. 628.— Ed.

SECT. VI.] GARTH V. HOWARD AND FLEMING. 453

nes8 was to lend money on pledges, and the amount of the pledge, or
of the interest paid, are immaterial. Now it is established bj- Rex v.
Almon, 5 Burr. 2686, that the law presumes a master to be acquainted
with the acts of his servant in the course of his business ; and slight
evidence is sufficient to establish the fact of agency. Hazard v.
Treadwell, 1 Str. 506. The declarations of Fleming's shopman, there-
fore, being within the scope of his authority (Schumack v. Lock, 10 B.
Moore, 39) are conclusive against his emploj-er.

Audreios. The business, which Fleming's shopman is alleged to
have spoken to was, in effect, a private loan, and not the transaction
of a pawnbroker's shop. It is inexpedient to extend the exception by
which the declarations of agents are received in evidence on hearsa}' ;
and in Macsters v. Abraham, 1 Elsp. 375, Lord Kenyon refused to admit
even the letter of an agent as evidence of an agreement b}- his principal.
Such evidence, if received, ought at least to be confined to declarations
at the time of the transaction. In Helj'ear v. Hawke, 5 Esp. 74, it
was expressly determined that the principal is not bound b^" the
representation of the agent at another time. Cur. adv. vidt.

TiNDAL, C. J. The rule in this case has been obtained upon two
distinct grounds ; but it is unnecessary to give an opinion upon any
other than this, namel}', whether the declaration of the shopman of the
defendant Fleming, that the goods were in the possession of his master,
was admissible : for it is clear that, unless Fleming is to be affected by
such declaration, he is entitled to the verdict upon the general issue,
nofi detinet. If the transaction out of which this suit arises had been
one in the ordinary trade or business of the defendant as a pawnbroker,
in which trade the shopman was agent or servant to the defendant, a
declaration of such agent that his master had received the goods, might
probably have been evidence against the master, as it might be held
within the scope of such agent's authority' to give an answer to such an
inquirj' made by anj' person interested in the goods deposited with the
pawnbroker. In that case, the rule laid down by the Master of the
Rolls in the case of Fairlie v. Hastings, 10 Ves. 128, which ma}' be
regarded as the leading case on this head of evidence, directl}- applies.
But the transaction with Fleming appears to us, not a transaction in
his business as a pawnbroker, but was a loan by him as by any other
lender of money at 5 per cent. And there is no evidence to show the
agency of the shopman in private transactions unconnected with the
business of the shop. I doubted much at the time whether it could be
received, and intimated such doubt by reserving the point ; and now,
upon consideration with the Court, am satisfied that it is not admissible.
It is dangerous to open the door to declarations of agents, beyond what
the cases have already done. The declaration itself is evidence against
the principal, not given upon oath : it is made in his absence, when he
has no opportunity to set it aside, if incorrectlj' made, by any observa-
tion, or any question put to the agent ; and it is brought before tlie

454 MORSE V. CONNECTICUT RIVEK RAILROAD CO. [CHAP. II.

court and jury frequently after a long interval of time. It is liable,
therefore, to suspicion originally, from carelessness or misapprehen-
sion in the original hearer; and again to further suspicion, from the
faithlessness of memory in the reporter, and the facility with which he
may give an untrue account. Evidence, therefore, of such a nature,
ought alwa3's to be kept witliin the strictest limits to which the cases
have confined it ; and as that which was admitted in this case appears
to us to exceed those limits, we think there ought to be a new trial.

Mule absolute.

MORSE V. CONNECTICUT RIVER RAILROAD CO.
Supreme Judicial Court of Massachusetts. 1856.

[6 Graij, 450.]

Action of tort by a passenger from Springfield to Chicopee on the
defendants' railroad, for the loss of her trunk.

At the trial in the Court of Common Pleas, the plaintiff introduced
the deposition of a man who accompanied her on that occasion, from
which Mellen, C. J., at the defendants' suggestion, ordered the fol-
lowing statement to be stricken out : " The next morning after the
trunk was lost, in accounting for the trunk, on ray inquiry, either the
conductor or baggage master told me that, the night before, a gentle-
man stepped up and claimed and took a trunk of the same description.
But the same morning the station agent told me he thought the trunk
was carried to Northampton the night before with other baggage."
The jury returned a verdict for the defendants, and the plaintiff alleged
exceptions to this ruling.

J. Wells, for the plaintiff.

C. TT. Huntington, for the defendants. — The declarations of the
defendants' agents were properly rejected, not having been made
while acting within the scope of their authorit}', nor in relation to a
transaction then depending. It was not the province of the conductor,
at least, to do anything about the baggage. The only transaction be-
tween the defendants and the plaintiff was the transportation from
Springfield to Chicopee, and that was over. These declarations,
therefore, were no part of the res gestae. Stiles u. Western Railroad,
8 Met. 44; Cooley v. Norton, 4 Cush. 93 ; Corbin v. Adams, 6 Cush.
95 ; 1 Greenl. Ev. § 113, and cases cited. Story on Agenc}', §§ 134-
137.

BiGELOw, J. The declarations offered in evidence were made by
the conductor or the baggage master, and by the station master, " the
next morning after the trunk was lost, in accounting for the trunk," in
answer to inquiries in behalf of the plaintiff. It was part of the duty
of those agents to deliver the baggage of passengers, and to account

SECT. VI.] LUBY V. HUDSON RIVER RAILROAD CO. 455

for the same, if missing, provided inquiries for it were made within a
reasonable time. These declarations were tlierefore made by them as
agents of the defendants, witliin the scope of their agenc}", and while
it continued. They should therefore have been admitted.

£Jxcex)tions sustained.^

LUBY V. HUDSON RIVER RAILROAD COMPANY.

Court of Appeals of New York. 1858.

[17 N. Y. 131.]

Appeal from the Supreme Court. The action was for alleged
negligence in running a railroad car drawn by horses against the plain-
tiff Mrs. Luby, in one of the streets of New York city. At the trial
the plaintiffs called as a witness one Mason, a policeman, and after
proving by him that he was on dut}- near the spot where the accident
occurred, and was called upon by the persons assembled around the
injured woman, he was permitted, under exception by the defendant's
counsel, to testify that he arrested the driver of the car which run
against Mrs. Luby. He was also permitted, under like exception, to
testify that upon arresting the driver as he was getting off the car and
out of the crowd which surrounded it, he asked him why he did not
stop the car, to which the driver replied that the brake was out of
order. The plaintiff had a verdict and judgment was entered there-
upon, and was, upon appeal, affirmed b}' the Supreme Court at general
term in the first district. The defendant appealed to this court.

Charles 0' Conor, for the appellant.

Hichard 0' Gorman, for the respondents.

CoMSTOCK, J.^ The declarations of an agent or servant do not in
.general bind the principal. Where his acts will bind, his statements
and admissions respecting the subject-matter of those acts will also
bind the principal, if made at the same time and so that they consti-
tute a part of the res gestae. To be admissible, they must be in the
nature of original and not of hearsay evidence. They must constitute
the fact to be proved, and must not be the mere admission of some
other fact. They must be made, not only during the continuance of
the agency, but in regard to a transaction depending at the very time.
1 Greenl. Ev., § 13; Thalheimer v. Brinkerhoff, 4 Wend. 396; Bank
of Monroe v. Field, 2 Hill, 445 ; Story on Agency, §§ 135, 136 ; Fairlie
V. Hastings, 10 Ves. 128 ; Barker v. Binninger, 4 Kern. 271.

In this case it seems to have been thought material on the part of
the plaintiff to prove that the brake of the defendant's car was out of

1 Arc. : Laner. Boston & Albany Railroad Co., 112 Mass. 455 (1873). — Ed.
■■^ Part of the opinion, not dealing with Agency, is omitted. — Ed.

456 GREAT WESTERN RAILWAY CO. V. WILLIS. [CHAP. II.

order. Whether this was or was not the direct object of introducing
the declaration of the driver, such declaration at all events proved the
fact, if the jury saw fit to credit his statement. But the fact, if true,
could not be proved in this manner. The declaration was no part of
the driver's act for which the defendants were sued. It was not made
at the time of the act, so as to give it quality and character. The
alleged wrong was complete, and the driver, when he made the state-
ment, was only endeavoring to account for what he had done. He was
manifestly excusing himself and throwing the blame on his principals.
I do not by any means suggest that the conduct of the servant himself,
as it was proved on the trial, was not so negligent as to justify the ver-
dict ; but the error was in allowing the jury, if they so pleased, to
regard another material fact as proved by a mere declaration of the
agent, — a fact which ma}' possibly have exercised a decisive influence
upon the result. What effect the jury gave to the evidence we cannot
tell. I see no way of getting over this difficulty.
All the judges concurring,

Judgment reversed and new trial ordered.^

GREAT WESTERN RAILWAY CO., Appellants, v. WILLIS,

Respondent.

' Common Pleas. 1865.

[18 C. B. N. s. 748.]

1. This was an action tried before the judge of the County Court of
Staffordshire and a jury, at Wolverhampton. It was brought to re-
cover £21 7s. Qd. for the non-delivery within a reasonable time of seven
cows, thirty-five sheep, and six pigs, which were delivered to the de-
fendants at Minety, on the r2th of July, 1864, to be carried to Wolver-
hampton, — the cows, sheep, and pigs being, as was alleged, thereby
much injured, and the plaintiff put to expense, and the market at Wol-
verhampton being lost.

2. The cattle were delivered at the Minet}^ station by the plaintiff
about 5 p. m. on the afternoon of the 12th of July. ^ • • .

3. The plaintiff proved that he saw the cattle loaded into trucks at
Minet}', ready for a goods train which usually leaves Minety about
7 p. M,, that he had been in the habit of sending cattle by the defend-
ants' railway for six or seven years, and that cattle loaded in time
for that train usuall}^ arrived at Wolverhampton about 7 the next
morning ; . . . that . . . the}' did not arrive by that train ; that the
next train was due at 10.30, but was late, and did not arrive till be-

1 Ace. : Lane v. Bryant, 9 Gray, 245 (1857). — Ed.

2 Points not dealing with Agency are omitted. — Ed.

SECT. VI.] GRKAT WESTERN RAILWAY CO. V. WILLIS. " 457

tween 12 and 1 ; . . . that the cattle were brought up to the market by
his man Grant about 1 or half-past 1, when the market was over. . . .

5. The plaintiff then proposed to state sometliing relating to the
cause of the delay in delivering the cattle by the company, which had
passed in conversation about a week after the 12th of July between
him and the defendant's night inspector, named East, at Didcot,
through which station the trucks in which plaintiffs cattle were would
pass, when the defendants submitted that a statement by a subordinate
servant at Didcot, not in course of the transaction, but some time
afterwards, was not admissible : but the learned judge allowed the
question to be put ; and the plaintiff then stated that he said to East,
" How is it you did not send m}' cattle on?" and that he said in reply,
that he had forgotten them.

The plaintiff also stated that East had the charge of the night cattle-
trains at Didcot, and that he would be on duty when the trucks in
which the plaintiffs cattle were would pass through Didcot, and that
he knew East well, and had frequentl}- seen him on duty at Did-
cot. . . .

16. The jury found for the plaintiff, that there had been an un-
reasonable dela}', and assessed the damages for loss of market at £14,
and injury to the condition of the cattle at £7 7s, 6c7.

17. The questions for the decision of the Court, were, — first, whether
the learned judge was right in admitting the evidence of the conversa-
tion with East, set forth in the fifth paragraph, — secondl}-, whether
the learned judge was right in refusing to nonsuit the plaintiff, and
whether he ought not to have ruled and directed that there was no
evidence for the jur}-, — thirdl}-, whether the learned judge was right
in his direction to the jur}'.

T. J. Clark (with whom was Dicjhy)^ for the appellants.

Macnamara, for the respondent.^

Erle, C. J. I am of opinion that this night inspector is not to be
presumed to have had authority' to make admissions relative to trans-
actions gone by, so as to bind his employers. I think neither of the
cases cited has any application here. I therefore think there must be a
new trial, and that the appellants are entitled to costs.

The rest of the Court concurring,

Mule accordingly.^

1 Citing Garth v. Howard, ante, p. 452, and Clifford v. Burton, ante, p. 4.51. — Ed.

2 Ace. : Anderson v. R., W. & 0. Railroad Co., 54 N. Y. 334 (1873). — Ed,

458 KIRKSTALL BREWERY CO. V. FURNESS RAILWAY CO. [CHAP. IL

KIRKSTALL BREWERY CO. v. FURNESS RAILWAY CO.
Queen's Bencu. 1874.
[L. R. 9 Q. B. 468.]

Declaration that plaintiffs caused to be delivered to defendants,
being common carriers of goods, a parcel containing £35, in bank-notes
and gold, to be carried from Whitehaven to Ulverston ; that defendants
did not deliver the parcel, and it has been wholly lost to plaintiffs.

Pleas, inter alia: 3, that the parcel contained money, and was within
the Carriers Act (11 Geo. 4 & 1 Wm. 4, c. 68) ; and that the nature
of the contents was not declared and the extra charge paid when the
parcel was delivered to defendants.

Replication : that the loss of the parcel arose from the felonious
act of a porter or servant of the defendants, and the non-delivery of
the parcel was caused by such felonious act.

Issue joined.

At the trial before Denman, J., at the sittings in Middlesex after
Trinity Term, 1873, it appeared in evidence that an agent of the plain-
tiffs, on Wednesday, the 17th of July, 1872, sent a parcel containing
£35 in notes and gold from the Whitehaven station of the defendants'
railway, addressed to a clerk of the plaintiffs, " Mr. Gardner, Kirkstall
Brewery Company's Stores, EUers, Ulverston" (where there is a
station of the defendants), and paid M. carriage. That the parcel was
not delivered to Gardner ; and on the same day John Haslam, a porter
in the defendant's service at their Ulverston station, disappeared, and
had never been found since.

George Holden, a superintendent of police, was then called on be-
half of the plaintiffs, and, after objection by defendants' counsel, gave
the following evidence : " I am superintendent of police at Ulverston.
I know Podmore, the station-master at defendants' station at Ulverston ;
in consequence of a communication in writing I went to him on
Saturday, the 20th of July. He told me that a man of the name of
John Haslam had absconded from the service ; that a mone}' parcel
was missing, and he [Podmore] suspected Haslam had taken it. He
said Haslam was the parcel porter. Would 1 [witness] make inquiries
about him ? "

The learned judge left it to the jury to sa}', whether they thought it
was estabhshed that the parcel was stolen by one of the defendants'
servants. The jury found a verdict for the plaintiffs for £35.

A rule was afterwards obtained for a new trial, on the ground of
misreception of the above evidence.

Sir H. (Tames, Q. C, and Iteid^ showed cause.

Price, Q. C, and Crompton^ in support of the rule.
CocKBURN, C. J. I am of opinion that the rule must be discharged
on the ground that the evidence was admissible under the particular

SECT. VI.] PACKET COMPANY V. CLOUGH. 459

circumstances of the case. A man, a railway porter at the station to
which the parcel is addressed, is beUeved to have absconded with a
parcel of money, which must be talien to have been tlie plaintiff's
mone}'. The parcel and man disappear simultaneously, and the man
was the person to whom, in due course, the parcel would have been
delivered ; there was, therefore, reasonable and probable cause for
arresting him on the charge of taking the parcel. Suppose the prin-
cipal in this case had been an individual, and had gone to a police-
man and said, " A parcel has been taken from my premises, and I
cannot doubt it has been taken aninio furandi^ for the person to
whom it was delivered has absconded just at the time the parcel
was missed, I therefore believe him to be the thief; I ask you to
make inquiries and to apprehend him if you find him under suspicious
circumstances." There is no principle on which that would not be ad-
missible evidence. Then, if Podmore was the agent of the defendants,
and if it was within the scope of his dut}- and authorit}" as agent to do
what the principal, if on the spot, would have done, what he sa3S
while he is so acting is equally admissible as if said by the principal
himself. Now, it is impossible to sa}-, that the man who has the sole
management of the station has not authority to cause a person to be
apprehended whom he has reasonable ground to suspect has stolen a
parcel from the station. Therefore Podmore had authority to cause
inquiry to be made after Haslam, and to cause him to be apprehended,
and if so, then it was within his duty and authority to make communi-
cations to the police. In other words, the effect of the particular cir-
cumstances of this case was to make the statement of Podmore to the
police superintendent, on the occasion in question, the statement of a
person having authority on the part of the company to make it.^

B,ule discharged.

PACKET COMPANY v. CLOUGH.

Supreme Court of the United States. 1874.

[20 Wall 528.]

Error to the Circuit Court for the Eastern District of AVisconsin.

In January, 1870, Carlos Clough and Sarah, his wife, in right of the
wife, sued the Union Packet Company, in an action on the case to
recover damages for personal injuries sustained bv the wife in conse-
quence of alleged negligence of the company's servants. The declara-
tion was in the regular common-law form : Plea: The general issue.

The company, at the time of the injury, was owner of a steamboat
employed by it in carrying passengers and freight on the Mississippi

'■ Opinions to the same effect were delivered by Q^in and Archibald, JJ. — Ed.

460 PACKET COMPANY V. CLOUGH. [CHAP. II.

River, between St. Paul, in the State of Minnesota, and St. Louis, in
the State of Missouri. During the passage downward, the boat ar-
rived at Read's Landing, in Minnesota, at about two o'clock on the
afternoon of September 30th, 1869, where she stopped to receive pas-
sengers. At that place Mrs. Clough (who was about to go to Daven-
port, in Iowa, at which place the boat was in the habit of touching) , in
attempting to go on board, fell from the gangway provided for en-
trance to the boat, and received the injurs- for which the suit was
brought.^ . . .

It appeared by the statements of Mrs. Clough that she went to Daven-
port, arriving there in the evening ; that she was on the boat two days
and a half; that on account of the injury received by her she had been
unwilling to pay fare ; that the captain demanded none of her, and that
she thanked him for the free passage.

In the course of the trial the plaintiffs' counsel asked Mrs. Clough
this question : —

" What conversation, if any, did you have with the captain after
the accident, on her trip down to Davenport? "

The question was objected to by the defendant's counsel, but the
court overruled the objection, and the answer to the objection was read
as follows :

" He said it was through the carelessness of the hands in putting out
the plank that I fell ; that they did not put out the regular plank, but
loose planks. It was in the evening before we got into Davenport,
that I had the conversation with the captain." . . .

Verdict and judgment having been given for the plaintiffs in $6,000,
the company brought the case here, assigning for error . . .

6th. The allowing Mrs. Clough to state, as she did, what the captain
had said to her after the accident, and on the trip down to Davenport
and just before arriving at that place, in regard to the cause of the
injur}-. . . .

Jifr. J. W. Gary, for the plaintiff in error.

Messrs. W. P. Bartlett and J/. II. Carpenter, contra.

Mr. Justice Strong delivered the opinion of the court. . . .

The next assignment is more important. The accident by which the
plaintiff was injured occurred at Read's Landing, in Minnesota, on the
30th day of September, 1869, about two o'clock in the afternoon. Two
days afterwards, as the boat approached Davenport, in the State of
Iowa, Mrs. Clough, the witness, had a conversation with the captain,
in which he made some statements respecting the accident, and these
statements the court allowed to be given in evidence against the de-
fendants. In this we think there was error. Declarations of an agent
are, doubtless, in some cases, admissible against his principal, but only
80 far as he had authority to make them, and authority to make them
is not necessaril}' to be inferred from power given to do certain acts.

1 From the statement and the opinion, passages not pertaining to Agency are
omitted. — Ed. «

SECT. VI.] PACKET COMPANY V. CLOUGII. 461

A captain of a passenger steamer is empowered to receive passengers
on hoard, but it is not necessary to this ])0\ver that he be authorized to
admit that either his principal, or any servant of his principal, has
been guilty of negligence in receiving passengers. There is no neces-
sary connection between the admission and the act. It is not needful
the captain should have such power to enable him to conduct the busi-
ness intrusted to him, to wit, the reception of passengers, and, hence,
his possession of the power to make sucli admissions affecting his prin-
cipals is not to be inferred from his employment. 1 Taylor on Evi-
dence, § 541. It is true that whatever the agent does in the lawful pros-
ecution of the business intrusted to him, is the act of the principal, and
the rule is well stated by Mr. Justice Story, Story on Agency, § 134,
that " where the acts of the agent will bind the principal, there his
representations, declarations, and admissions respecting the sul)ject-
matter will also bind him, if made at the same time, and constituting
part of the res gestce." A close attention to this rule, which is of uni-
versal acceptance, will solve almost ever}- difficult}'. But an act done
by an agent cannot be varied, qualified, or explained, either by his
declarations, which amount to no more than a mere narrative of a past
occurrence, or b}' an isolated conversation held, or an isolated act done
at a later period. 1 Taylor on Evidence, § 526. The reason is that
the agent to do the act is not authorized to narrate what he had done
or how he had done it, and his declaration is no part of the " res
gestce.'"

Applying this rule to the present case, how does it stand? The
thing of which the plaintiffs complain was negligence, on the 30th of
September, — a fault in providing for Mrs. Clough's embarkation on the
steamer. That, and that alone, caused the injury she sustained. That
and nothing else was the " res gestae." What the captain of the boat
said of the transaction two days afterwards was, therefore, but a nar-
rative of a past occurrence, and for that reason it could not affect his
principals. It had no tendency to determine the nature, quality, or
character of the act done, or left undone, and it is not, therefore, within
the rule stated by Judge Story, That rule has been recognized in toti-
dem verbis in Wisconsin by Chief Justice Dixon, in delivering the opin-
ion of the court in The jNIilwaukee and Mississippi Railroad Company v.
Finney, 10 Wisconsin, 388. And there is nothing in any of the decisions
cited by the defendants in error inconsistent with such a rule. The case
of The Enterprise, cited from 2d Curtis, was a suit in admiralty for sul>
traction of wages, and the declarations of the master respecting the
contract with the seamen were admitted, though not a part of the res
gestce. But the decision was rested upon the ground that the admiralty
rule is different from the rule at common law. The case of Burnside
V. The Grand Trunk Railroad Company, cited from 47 New Hampshire,
simply decides that the statements of the general freight agent as to
the condition of goods delivered to him for transportation, made while
the goods are still in transit, or while the duty of the carrier continues,

462 HOWE MACHINE CO. V. CLARK. [CHAP. II.

are admissible in evidence against tiie company. Tliis was a case of
contract not executed, and, wLiile it remained unexecuted, tlie agent
had power to vary it ; had, in fact, complete control over it. The trans-
action was still depending, and the agent was still in the execution of
an act which was within the scope of his authority. But in the present
case the declarations admitted were not made in the transaction of
which the plaintiffs complain, or while it was pending. They refer to
nothing present. They are only a history of the past.

It is argued they were made before the voyage upon which Mrs.
Clough entered was completed. True, they were, but they were not
the less mere narration. The accident was past. The injury to Mrs.
Clough was complete. The onl^' wrong she sustained, if any, had
been consummated two days before. We cannot think the fact that
she had not arrived at her port of destination is at all material. If
she had left the steamer before the declarations were made it is not
claimed, as certainly it could not be, that they were admissible. Now,
suppose two persons were injured b}' the negligence which the plain-
tiffs assert, and one of tii^ui had left the boat before the captain's dec-
larations were made, clearly they would have been inadmissible in
favor of the person whose vo3'age had been completed. This is not
denied. Yet the connection between them and the accident would be
as close in that case as in this. Can they be admissible in the one case
and not in the other? Assuredly not. We must hold, therefore, that
there was error in admitting in evidence the statement of the captain
of the steamboat made two days after the wrong was done of which
the plaintiffs complain. . . .

Judgment reversed^ and a venire de novo atcarded}

HOWE MACHINE CO. v. CLARK.

Supreme Court of Kansas. 1875.

[15 Kan. 492.]

Oevenney & Green, for plaintiff.

St. John & Parker^ for defendant.

The opinion of the court was delivered by

Valentine, J.^ This was an action of replevin, brought by the Howe
Machine Company against James H. Clark, to recover the possession
of two horses, one set of double harness, and one set of thills. The
judgment in the court below was in favor of the defendant and against

1 See Vicksbnrg & Meridian Railroad v. O'Brien, 119 U. S. 99 (1886) ; s. c, Thay-
er's Cases on Evidence, 66.3. — Ed.

2 The reporter's statement is omitted ; and so are such parts of the opinion as do
not deal with Agency. — Ed.

SECT. VI.] HOWE MACHINE CO. V. CLARK. 463

the plaintiff, and the plaintiff brings the case to this court for review.
The theory of the plaintiff with regard to such property is as follows :
The plaintiff originally owned the property. It employed one II. E.
Tracy to procure sales of its sewing machines in Johnson couutv, and
I'urnished him with an "outfit" for that purpose, consisting of said
property, together with some other property-. The property in contro-
versy was hired to Tracy upon certain conditions, which conditions
were immediately broken by Tracy, and the plaintiff from that time not
only claims to have owned the i-woperty, but also claims to have had
the right to the immediate possession thereof Afterward Tracy sold
said horses and harness, and delivered the same, together with said
thills, to the defendant Clark, without the knowledge or consent of the
plaintiff. . . .

It was error for the court to permit defendant to prove the state-
ments of Trac3' formerly made b}- him concerning this and other prop-
ert}'. The defendant claimed that Tracy had authority from the Howe
Machine Company to sell this identical propert}- ; and, for the purpose
of proving that Tracy had such authority, introduced evidence over the
objections of the plaintiff, but with the permission of the court, showing
that Tracy had at different times stated that he had such authority',
and that he had authority to sell not only this but other property be-
longing to the company. Now it is competent to prove a parol agenc}',
and its nature and scope, by the testimony of the person who claims to
be the agent. It is competent to prove a parol authority of any person
to act for another, and generally to prove an}- parol authority of any
kind, by the testimony of the person who claims to possess such
authority. But it is not competent to prove the supposed authority of
an agent, for the purpose of binding his principal, by proving what the
supposed agent has said at some previous time. Nor is it competent to
prove a supposed authority of any kind, as against the person from
whom such authority is claimed to have been received, by proving
the previous statements of the person who it is claimed had attained
such authorit}'. . . .

The judgment of the court below will be reversed, and the cause
remanded for a new trial. ^

1 Ace : Brigham v. Peters. 1 Gray, 139, 145 (1854) ; Craighead v. Wells, 21 Mo.
404 (1855); Sencerbox v. McGrade, 6 Miun. 484 (1861); Hatch v. Squires, 11 Mich.
185 (1863); Sax v. Davis, 71 Iowa, 406 (1887); Missouri Pacific Railway Co. u
Simons, 6 Tex. Civ. App. 691 (1894). — Ed.

464 LOOMIS V. NEW YORK, ETC. RAILROAD CO. [CHAP. 11

LOOMIS V. NEW YORK, NEW HAVEN, and HARTFORD
RAILROAD CO.

Supreme Judicial Coukt of Massachusetts. 1893.

[159 Mass. 39.]

Tort, for personal injuries occasioned to the plaintiff in consequence
of a fall upon some steps in the railroad station of the defendant at
Hartford, Connecticut, by reason of ice upon the steps.

At the trial in the Superior Court, before Hopkins, J., it appeared
that there had been a trial of the case at a former sitting of the court
in Jul}', 1891, and that a new trial was granted.

It appeared in evidence that the plaintiff went from Springfield to
Hartford on one of tlie defendant's trains, arriving at about twenty min-
utes past twelve in the afternoon of January 1, 1891 ; that she passed
from the platform to the waiting-room by a staircase constructed of
wood, which led down a course of fifteen steps to a broad stair or
landing eigiit feet square, and then, turning to the left, at right angles,
descended six steps more to the passageway on a level with the floor of
the waiting-room connected therewitli ; and that the lowest of the six
steps was about thirtj'-five feet from the waiting-room.

This staircase was the regular staircase for passengers going from
the platform to the waiting-room. There was no testimony from any
person except the plaintiff as to the way in which she fell or the place
where she fell, other than what appeared from her subsequent state-
ments, as testified to b}' other witnesses, and as appeared from their tes-
timony referred to hereafter. She testified that she had gone down the
stairs but a very few steps from the platform where she alighted from
the train, when she fell and received her injuries ; that many persons
were going down the stairs at the same time ; that she fell three or
four steps down, from the top of the long flight and almost to the
broad stair, and did not fall at the bottom of the short flight referred
to above. . . .

The defendant produced in court, and offered to introduce in evi-
dence, two letters, of which the following are copies, written b}' a clerk
in the office of James B. Carroll, the plaintiffs attorney, to wit.

"Springfield, Mass., Jan'y 5, 1891. Mr. Wm. E. Barnett, Executive
Secretary, N. Y., N. H., and H. R. R. Co., New Haven, Conn. Sir:
Mrs. Hulda L. Loomis of this city, on Thursday, January 1, 1891, fell
down the stairs of 3'our depot at Hartford, just after arriving on the
11.45 A.M. train from here. The cause of the accident was the snow
and ice on the stairs. Her spine is affected, and she has received
severe internal injuries. Please let me hear from ^-ou. Yours trul}^,
James B. Carroll. F."

" Springfield, Mass., Jan'y 10, 1891. Wm. E. Barnett, Exec. Sec'y,
N. Y., N. H., and H. R. R. Co., New Haven, Conn. Sir: In reply to

SECT. VI.] LOOMIS V. NEW YORK, ETC. RAILROAD CO. 465

yours of tlie 7tli instant, regarding the accident to Mrs. Loomis, I would
state lliat she fell on the third or fourth step from the bottom of the
stairway across the tracks from the waiting-room. Your men picked
her up after her fall and know where it occurred. It is impossible now
to state how much she will take for compensation, as her illness and
injury are so serious at present that one cannot tell how permanent may
be their effects. Yours trul}-, James B. Carroll. F."

It was proved that tlie clerk had the same authority to write the
letters which Mr. Carroll, as attorney for the plaintiff, had, and it was
further proved that these letters were received in due course of mail by
the defendant.

The letter of January 10 was in answer to the following letter of the
defendant, which it offered in evidence : —

" New Haven, Conn. Jan. 7th, 1891. James B. Carroll, Esq., Spring-
field, Mass. Dear Sir; Referring to yours of Jan. 5th, in regard to
claim of Mrs. Loomis, will you kindly state precisely the place where
she fell, and what amount she claims should be paid to her? Yours
truly, Wm. E. Barnett, Exec. Sec'y."

The above letters, a letter of the defendant of January 12, 1891,
containing statements favorable to the defendant, and a letter of the
plaintiff's attorney of January 13, 1891, containing comments outside
the scope of his employment, were all excluded, and the defendant
excepted. It was proved that the husband of the plaintiff, as her agent,
secured Mr. Carroll as attorney for the plaintiff after the accident in
January 1891, and that he did not see her until less than two weeks
before the first trial of the action, which was long after the letters were
written.

The jury returned a verdict for the plaintiff; and the defendant
alleged exceptions.

The case was submitted on briefs to all the judges.

G. D. Robinson & W. S. Hobinson^ for the defendant.

J. B. Carroll, for the plaintifT.

Knowlton, J.^ The principal question in the case relates to the
admissibility of a letter written to the defendant by a clerk of the
plaintiffs attorney, under authority from the attorney, purporting to
state the facts on which her claim was founded. The bill of excep-
tions sets forth two letters written to the defendant by this clerk, two
written to the attorney by the executive secretar}' of the defendant,
and one afterwards written to the defendant by the attorney with his
own hand. The first two, written by the clerk under authority from
the attorney, were first offered, then testimonj' was introduced, and the
defendant offered the letter from the attorney to the defendant, " and
also the letters of the defendant to Mr. Carroll," the attorney, and
exceptions were taken to the refusal to admit them. It is clear that

^ In reprinting this opinion and the reporter's statement of facts, passages not
relating to Agency are ontiitted. — Ed.

466 LOOMIS V. NEW YORK, ETC. RAILROAD CO. [CHAP. II.

the defendant was not entitled to introduce the entire correspondence,
for it contains statements of the executive secretary favorable to the
defendant, which were not competent. Perhaps, also, the last letter of
the plaintiff's attorney, which he wrote with his own hand, was inadmis-
sible as containing opinions and comments which were strictly personal
and outside of the scope of his employment. It is contended that the
only question open to the defendant is whether the entire correspond-
ence was competent, but we are of opinion that the question whether
the first two letters were competent was intended to be saved by the
bill of exceptions.

The object of the evidence was to show that, when the plaintiff
presented her claim through her attorney, it was for a fall at a place
near where the defendant's evidence at the trial tended to show thai
it occurred, and where the stairs were in perfect condition, and not at
the place where the plaintiff located it in her testimony. Upon the
issue raised, the fact sought to be proved was material and important.
We are algo of opinion that the method of proof was competent and
proper.

The undisputed evidence tends to show that the attorney had been
employed to represent her in the collection of a claim against the
defendant for damages resulting from a fall in the defendant's railroad
station at Hartford. The terms of his employment do not expressly
appear. But a fair inference from the evidence is that he was not
merely employed to bring a suit, but was authorized to present the
plaintiff's claim, and to endeavor to obtain a settlement of it without
a suit. If this was his authorit}', we have no occasion to consider the
cases holding that admissions which are mere matters of conversation
with an attorne}', though the}' relate to the facts in controvers}', cannot
be received in evidence against his client. Such admissions are not
within the scope of his employment. Nor have we any reason to con-
sider in this case the general authority of an attorne}', by virtue of his
position as an attorney at law, in charge of a suit, to bind his client by
agreements in reference to the management or disposition of the suit.
See Lewis v. Sumner, 13 Met. 269 ; Saunders v. McCarth}^ 8 Allen, 42 ;
Pickert v. Hair, 146 Mass. 1. The maxim, Qui facif per aliuni facit
per se, applies as well to acts done or statements made b}- an attorney
at law as by an}' other agent. The act of a part}' done by his agent
may always be proved against him if material.

An attorney or agent employed to present and collect a claim is
impliedly authorized to state to the debtor what the claim is. The
plaintiff could not have expected that her attorney would collect her
claim from the defendant on demand, without stating the nature and
particulars of it, so that the defendant could understand it, and make
investigation in regard to its validity. It was as much a part of his
duty to state as nearly as possible the precise place in the building
where the accident happened, if asked to, as to state in what town
or State the plaintiff was when she fell. The defendant's letter of

SECT. VI.] LOOMIS V. NEW YORK, ETC. RAILROAD CO. 467

January 7, 1891, inquiring for particulars, is competent, in connec-
tion with the letter of January 10, which purports to be an answer
to it, to show how the statement came to be made ; and the two
together, in connection with the first letter of January 5, show conclu-
sively that writing the words, "she fell on the third or fourth step
from the bottom of the stairway across the tracks from the waiting-
room," was strictly within the authority of her attorney-, employed to
present and collect her claim. The fact that they were not written
by her own hand, but by an agent who was acting under instructions
received through her husband, who was also her agent in the same
business, affects the weight, but not the competenc}-, of the evidence.
1 Greenl. Ev. § 186 ; Marshall v. Cliff, 4 Camp. 133 ; Baring v. Clark,
19 Pick. 220 ; Woods v. Clark, 24 Pick. 35, 39 ; Cooley v. Norton, 4
Cush. 93 ; Morse v. Connecticut River Railroad, 6 Gray, 450; Haney
V. Donnelly, 12 Gray, 361 ; Gott v. Dinsmore, 111 Mass. 45 ; McAvoy,
V. Wright, 137 Mass. 207.

There is nothing in the adjudication in Pickert r. Hair, 146 Mass. 1,
nor in the language of the opinion as applied to the matters then under
consideration, which is at variance with tlie views above stated.

The letters are not inadmissible as part of an offer to compromise a
controverted claim. At the time they were written there had been no
intimation on the part of the defendant that the plaintiff would not be
paid all that she thought it right to ask. The only communication
which had been received from the defendant indicated a desire to ascer-
tain the truth, as if for the purpose of promptly paying tlie claim if it
appeared to be valid. Exceptions sustained.

Lathrop, J. I am unable to concur in the opinion of the majority
of the court.

If it is assumed that the question of the admissibility of the first two
letters written bj- the clerk of the attorney for the plaintiff is open on
the exceptions, a point which is not free from doubt, and if it is also
assumed that the evidence sought to be introduced is material, a point
about which there is also a doubt, as the evidence for the plaintiff
tended to show that there was ice on all the steps, and the evidence for
the defendant tended to show that there was no ice on an}' of the steps,
I do not agree that the letters were competent evidence.

There was no evidence that the letters in question were written by the
direct authorit}' of the plaintiff, or b}' her consent, or even with her
knowledge. There was no evidence that at the time of the accident
Mr. Carroll was the plaintiff's attorney' ; and he could have had no
personal knowledge on the subject, as it appeared that he was retained
as an attorne}' at law after the accident by the plaintiff's husband, and
did not see her until less than two weeks before the first trial of this
action, which was long after the letters were written.

In Pickert v. Hair, 146 Mass. 1, the question as to the effect of an
admission made by Mr. Thayer, an attorney, after an action brought

468 LOOMIS V. NEW YORK, ETC. RAILROAD CO. [CHAP. II,

but before the beginning of the ease then before the court, was con-
sidered. One of the grounds of the decision was thus stated on page
5 : " The admission was not made by INIr. Tliayer for the purpose of
dispensing with any rule of practice, or with the proof of an}' fact in
the trial of the action already brought, or of the actions which might be
brouglit in reference to the attached property'. It was a conversation
relating to a fact in controversy, but not an agreement relating to the
management and trial of a suit, or an admission intended to influence
the procedure in the pending action, or in any other, if the attachment
was not discharged."

In support of these propositions several cases are cited, and an
examination of them shows that the doctrine hitherto established is
that an admission by an attornej' does not bind his client, although it
relates to a fact in controversy, unless it is made for the purpose of
dispensing with some rule of practice, or with the proof of a fact in the
trial of a case, or is an admission intended to influence the procedure
in the action. To the same effect are the following cases : Rockwell v.
Taylor, 41 Conn. 55 ; McKeen v. Gammon, 33 Maine, 187 ; Cassels v.
Usry, 51 Ga. 621.

The opinion of the raajorit}' of the court apparently proceeds upon
the theory that an attorne}' stands in a different relation to his client
before an action is brought from that which he occupies afterwards.
But no case is cited which sustains this position. The general rule
that an attorney cannot, without the consent of his client, disclose a
confidential communication made to him by his client, applies as well
to communications made before action brought as afterwards. See
Foster v. Hall, 12 Pick. 89, and cases cited.

With one exception, the cases cited in the opinion of the majority of
the court in support of the propositions that an attorney is merelj- an
agent, and that his admission binds his principal, are cases of mere
agents, and not of attorney's. The}' seem to throw no light on the
question in this case.

The case of Marshall y. Clifl', 4 Camp. 133, remains to be considered.
This was an action against the owners of a vessel. To prove the
defendants to be the owners, there was offered in evidence an under-
taking in the following form, given before the action was begun by the
persons who were afterwards the defendant's attornej's of record: "I
hereb}' undertake to appear for Messrs. Thompson and Marshall, joint
owners of the sloop Arundel^ to any action yon maj' think fit to bring
against them." This was held by Lord Ellenborough to be sufficient
evidence. But, as was pointed out In' Mr. Justice Parke, in AVagstaff
V. Wilson, 4 B. & Ad. 339, the undertaking was " a step in the cause."

I am authorized to state that Chief Justice Field concurs in this
opinion.

SECT. I.] WHITFIELD V. LOKD LE DESPENCER. 469

CHAPTER III.
THE AGENT'S RESPONSIBILITY TO STRANGERS.

SECTION I.

Torts.

Chief Justice Holt, in Lane v. Cotton, 12 Mod. 472, 488
(K. B., 1701)1: —

It was objected at the bar, that they bave this remedy against Breese.
I agree, if they could prove that he took out the bills, they might sue
him for it ; so they might anybody else on whom they could fix that
fact : but for a neglect in him they can have no remedy against him ;
for they must consider him only as a servant ; and then his neglect is
only chargeable on his master, or principal ; for a servant or deputy,
qiiatemcs such, cannot be charged for neglect, but the principal only
shall be charged for it ; but for a misfeasance an action will lie against
a servant or deput}', but not quatenus a deputy or servant, but as a
wrong-doer.'^

Lord Mansfield, C. J., in Whitfield v. Lord Le Despencer, 2 Cowp.
754, 765 (K. B., 1778): —

As to an action on the case lying against the party realh' offending,
there can be no doubt of it ; for whoever does an act b}- which another
person receives an injury is liable in an action for the injury received.^
If the man who receives a penny to carry the letters to the post-office
loses any of them, he is answerable ; so is the sorter in the business of
his department ; so is the post-master for any fault of his own.

1 s. c. 11 Mod. 12, 1 Lord Raym. 646, 1 Salk. 17, Comyns, 100, Carthew, 487,
Holt, 582.

The passage is taken from a dissenting opinion ; but the disagreement of the judges
was as to a (juestion not dealt with in this passage, namely, the question whether
the Postmaster General is responsible for the acts or negligence of a clerk in a
post-office. — Ei>.

* The same distinction was taken by Coke, counsel for the defendant, in Marsh »
Astry, Cro. Eliz. 175 (1590), s. c. 1 Leon. 146. — Ed.

» See Sands v. Child, 3 Lev. ,351, 352 (1693). —Ed.

470 STONE V. CARTWRIGHT. [CHAP. IIL

STONE ET AL. V. CARTWRIGHT.

King's Bench. 1795.

[6 T.R.^U.']

The declaration stated that the plaintiffs were possessed of a certain
close in Tipton in the county of Stafford, and also of a dwelling house,
«&;c., there ; that the defendant was possessed of a certain coal mine
under the surface of the said close and house, &c. ; and that the de-
fendant well knowing the premises, but contriving, &c., to injure the
plaintiff, &c., worked and caused to be worked, &c., his said mine of
coal in a negligent, incautious, and unskilful manner, and neglected to
leave necessary and sufficient pillars, «fcc., to support the said buildings
and premises of the plaintiffs and the soil, «SiC. ; by reason whereof the
surface of the said close sunk and gave wa}', &c., and the buildings,
&c., were rent and rendered dangerous. It appeared at the trial before
Lord Kenyon at Stafford that the colliery belonged to A. M. Ward, an
infant, and that the defendant had been appointed agent and manager
thereof under the Court of Chancer}' ; that he employed a bailiff under
him who superintended the work ; that he hired and dismissed the
colliers at his pleasure, but that he took no personal concern in the
business, was not present when the injury- complained of was done, nor
had given any particular orders for working the mine in the manner
which had occasioned it. Upon this evidence Lord Kenyon was of
opinion that the action could not be maintained against the defendant,
who was the middle-man, but that it ought to have been brought either
against the person who actually committed the trespass or concurred
therein, or against the superior, the owner of the colliery, for whose
benefit the work was carried on ; and he referred to a case of Gwinne
V. Poole, 2 Lutw. 935. The plaintiffs being nonsuited,
Russell now moved to set aside the nonsuit.

Lord Kenyon, C. J. There is no pretence whatever for imputing
liability to the defendant in this action ; it might as well be contended
that a similar action would lie against the steward of another for all the
defaults of improper conduct of the men employed under him by which
any other person received damage. In all these cases I have ever
understood that the action must either be brought against the hand
committing the injury, or against the owner for whom the act was done ;
but it was never heard of that a servant who hires laborers for his
master was answerable for all their acts. The present defendant has
no interest in the colliery, nor was it worked for his benefit ; he was
no more than a steward appointed by the Court of Chancery. His
Lordship mentioned the cases of Gwinne v. Poole, 2 Lutw. 935, and
Goodwin u. Gibbons, 4 Burr. 2108, where this question had been
considered.

SECT. I.] HILL V. CAVERLY ET ALS. 471

AsHHURST, J., declared himself of the same opinion.

Grose, J, It frequently happens that a person's gardener emplo3'S
laborers under him, yet it could never be contended that on that account
he would be answerable for damage done by them in the course of their
employment.

Lawrence, J. If the plaintiffs had given evidence that the defend-
ant had particularly ordered those acts to be done from whence the
damage had ensued, that would have varied the case ; but no such
evidence being adduced, I think the opinion delivered at the trial was
perfectly right. Hule refused.^

HILL V. JOHN CAVERLY, JOHN WILLIAMS, and JOS.

CAVERLY.

Superior Court of New Hampshire. 1834.

[7 N. H. 215.]

Trespass on the case.-

The cause was tried upon the general issue, at January term, 1834.

It appeared, that in the year 1794, a dam was made and a saw-mill
erected at the outlet of Bow Pond. The saw-mill continued there
until the 14th March, 1832. The ground upon which the dam was
built being unfavorable, it broke awa}' three or four times prior to
1823.

On the 1st December, 1822, the Dover Manufacturing Company
became the owner of the mill, the dam, and the mill-privilege, and in
the years 1823 and 1824 caused a new dam to be erected, eleven feet
higher than the old dam. The defendant, Williams, as the agent of
the compan}', superintended the erection of the new dam, and gave
directions respecting it. John Caverly also directed in the building of
the dam, as an agent of the company ; and both John and Joseph
Caverl}' labored in constructing it as servants and agents of the
compan}'.

Owing to the nature of the ground, the great body of water, and the
manner of its construction, the dam was insufficient and insecure.

The said Williams, as agent of the said company-, and John Caverl}'
under him as the servant of the compan}', controlled the gates and
dam until the 2d December, 1829, when the said Dover Manufacturing
Company conveved all their interest in the premises to the Cocheco
Manufacturing Company. From that time up to the 14th March,
1832, the last mentioned company controlled and used the water, and
the said John Caverl}- acted as their agent for the purpose.

1 Ace. : Brown v. Lent, 20 Vt. 529 (1848). — Ed.

3 The reporter's abstract of the declaration has been omitted. — Ed.

472 HILL V. CAVERLY ET ALS. [CHAP. IIL

On the 12th February, 1829, the Dover Manufacturing Company
leased to John Caverly the saw-mill at the outlet of the pond, for a
term which had not expired on the 14th March, 1832, he agreeing to
follow the directions of the company' in everything relating to the
stoppage or flowuge of the water in said pond.

For some time prior to the 14th March, 1832, there were indications
that the dam was defective and dangerous ; and on that day, b}^ reason
of its defects, it broke away, and thus caused the destruction of the
plaintiff's property, mentioned in his declaration.

The court being of opinion that upon the foregoing case the action
could not be sustained against these defendants, directed a nonsuit,
subject to the opinion of this court.

Christie, for the plaintiff.

/. Bartlett, for the defendants.

By the Court. Richardson, C. J. The injur}' of which the plain-
tiff' complains, is, that the defendants, by means of a feeble and badly
constructed dam, wrongfull}' and injurious'}' raised and kept up the
water in the pond twelve feet higher than was lawful, from the 1st
September, 1831, to the 14th March, 1832, by reason of which the
water broke away the dam, and did the damage stated in the declara-
tion. The damage is not alleged to have resulted from an}' defect in
the dam, rendering it unfit to answer an}' lawful purpose for which
it was erected, but from raising the water, by means of the dam,
twelve feet higher than was lawful. The action is founded, then, not
on any negligence of the defendants in the construction of the dam,
but upon an improper use of it between the 1st September, 1831, and
the 14th March, 1832. Such being the nature of the action, it is clear
it is not maintained by the evidence against Williams and Joseph
Caverly. They had no concern with the gates of the dam after the 2d
December, 1829.

John Caverly stands on different ground. From the 2d December,
1829, until the dam broke away, he acted as the agent of the Cocheco
Company at the dam. But that company had the control and use of
the water during the whole time ; and he had contracted with the
Dover Company, under whom the Cocheco Company claimed the prem-
ises, and who had leased the saw-mill to him, to follow the directions
of the lessors in everything relating to the stoppage or flowage of the
water in the pond.

He must, then, be considered as the mere servant of the Cocheco
Company, acting in all he did under the immediate direction and con-
trol of the company, or their agents.

The question then, is, whether the facts disclosed in the case render
him liable?

Nothing is stated in the case which shows any want of right in the
Cocheco Company to raise the water to the height it was raised. If
the action can be sustained at all, it must be on the ground that
it was imprudent and improper to raise such a head of water with
such a dam.

SECT. I.] DENNY V. THE MANHATTAN CO. 473

When a servant, by the command of his master, does an apparent
wrong, both the master and the servant are liable. BuUer's N. P. 47.

And when a servant, in the absence of his master, went into an
improper place with a coach and two ungovernable horses, in order to
train them there, and the servant not being able to govern the horses,
they ran upon an individual and wounded him, — it was held, that
both the master and the servant were liable. 2 Lev. 172, Michael
V. Alestree.

When a servant, b}' command of his master, hires hands to do work,
and they do a wrong, the master, and not the servant who hires the
wrong-doers, is liable. G D. & E. 411, Stone v. Cartwright.

A servant or deputy cannot be charged for mere nonfeasance. 1
Chitty's PI. 72 ; 12 Mod. 488.

Thus, in England an under-sheriff is a mere servant of the sheriff,
and no action lies against the under-sheriff for a mere breach of
duty. Cowper, 403 ; 5 N. H. R. 456.

Xo action can be maintained against a servant, unless he can be
considered as a wrong-doer. He is never liable for any negligence of
his master.

If he aids or assists in a wrongful act, he is liable. 1 Wilson, 328,
Perkins v. Smith.

In this case, John Caverly shut the gate, and left it shut till the
dam gave wa}'. The shutting of the gate was no wrongful act to any-
body. The owners had a right to raise a head of water as high as the
dam would safeh' bear. If the gate ought to have been raised sooner,
that was business of the owners, and not of John Caverh'. He had no
authorit}' to raise it, except when directed so to do.

The case discloses no wrongful act, no breach of duty, in John
Caverly, no negligence which can render him liable to this plaintiff.

Judgment for the defendants.

DENNY AND OTHERS, TRUSTEES, &c., V. THE MANHATTAN

COMPANY.

Supreme Court of New York. 1846.

[2 Denio, 115.]

Demurrer to declaration. The plaintiffs, as trustees of the credi-
tors of Joseph and Andrew Brown, appointed pursuant to proceedings
by attachment instituted against them as non-resident debtors, on the
9th day of November, 1836, under the provisions of the revised stat-
utes, sued the defendants in case for an alleged violation of dut}- as the
agents in New York of the Planters' Bank of Tennessee, in refusing to
permit a transfer to the plaintiffs on the transfer book of the Planters'

474 DENNY V. THE MANHATTAN CO. [CHAP. III.

Bank kept by them, of two hundred and eightj^-one shares of the
capital stock of that bank alleged to belong to the plaintiffs in their
character of trustees. The declaration alleged that the defendants
were a banking corporation organized under their charter and transact-
ing business in the city of New York, and that the Planters' Bank was
a corporation created by the legislature of Tennessee with a capital
of $2,000,000, divided into shares of $100 each. It then averred that
the defendants at the several times afterwards mentioned, "were the
agents in the said city of New York of the said Planters' Bank of
Tennessee for the registration and transfer of the stock of such bank
and the payment of dividends thereupon in said city, and did during
all the time last aforesaid keep at their said banking house in the city
of New York, a set of books for the registration and transfer of the
said stock of the said Planters' Bank of Tennessee," to wit, &c. It
then stated with particularit}' the title of the trustees to the shares
claimed hy them, which was substantially as follows : The Browns
prior to the attachment against them were the owners of the stock,
and held two certificates, each for separate portions of it, issued by the
defendants as the lawfully authorized agents of the Planters' Bank,
signed by the cashier and by a clerk of the defendants under the
corporate seal of the Planters' Bank, which certificates stated that the
Browns were entitled to the shares mentioned in the certificates respec-
tively, which were declared to be " transferable onl}- at the bank of the
said defendants on the surrender of the certificate." On the 12th day
of December, 1837, A. Brown, as survivor of J. Brown who had died,
executed under his seal a conve3'ance and transfer of the stock men-
tioned in both certificates to Messrs. Crockett and Park, with a power
of attorne}' contained in it, to a clerk of the defendants, who was
named, to surrender the certificates and execute a formal transfer.
Crockett and Park, a few days afterwards, executed a like conveyance
of the stock to the plaintiffs as trustees as aforesaid, with a power of
attorney in blank. The declaration thereupon avers that it became
and was the duty of the defendants upon the production and surrender
of the certificates "to suffer and permit" the stock to be regularly
transferred upon the transfer books kept at the defendants' bank to the
plaintiffs as trustees under the act ; and that the plaintiffs, to wit, on
the 29th of September, 1838, &c., exhibited to the defendants these
evidences of their, right to the stock, and also a letter from the cashier
of the Planters' Bank to the cashier of the defendants' compan}- re-
questing that such transfer might be made, and offered to fill up the
blank in the last-mentioned conveyance with the name of a clerk of the
defendants, and to do all necessary acts, &c., and requested the de-
fendants to permit the transfer to be made ; j'et that the defendants
not regarding their duty, &c., but contriving and fraudulently intend-
ing, &c., would not sufl^er or permit the stock to be transferred to the
plaintiffs on the books so kept by them, &c., whereby the plaintiffs
have been unable to obtain a suflScient title to the stock, and have been

SECT. I.] JOHNSON V. BARBER. 475

prevented from selling and disposing of it, whereby it has become of
no value to the plaintitfs.

The foregoing is the substance of the first count. There were four
other counts substantially like the first, but with some additional aver-
ments not material to the point determined by the court.

The defendants demurred to the declaration, assigning special
causes, objecting among other things that the declaration did not show
any valid title in the plaintiffs as trustees to the stock in question, and
that the defendants were not liable to the plaintiffs for acts done or
omitted by them as agents of the Planters' Bank ; and that if they
were liable at all the action ought to have been assumpsit. Joinder.

S. P. Staples and S. Stevens, for the defendants.

S. A. Foot, for the plaintiffs.

Per Curiam. We entertain a pretty strong impression that the
plaintiffs have failed to show a good title to the stock : but our decision
will be put upon another ground, concerning which we have had no
doubt from the moment the case was opened. If the plaintiffs have a
cause of action against any one, it is not against the defendants, but
against the Planters' Bank of Tennessee. The defendants were not
the agent of the plaintiffs, and owed them no dut}'. They were the
agent of the Planters' Bank ; and for a neglect to discharge their
agency, the}' are answerable to their principal and to no one else. If
third persons are injured by the neglect of a known agent, the rule is
respondeat superior, and generally the action must be brought against
the principal. Judgment for defendants}

JOHNSON, Impleaded, «&c., Plaintiff in Error, v. BARBER,
Defendant in Error.

Supreme Court of Illinois. 1849.

[10 111. 425.]

Trespass upon the case, in the Kane Circuit Court, brought by the
defendant in error against the plaintiff in error and one John Johnson,
for firing a prairie, &c., and heard before the Hon. John De Caton and
a jury, at the April term, 1847. The defendants pleaded the general
issue.

During the progress of the trial, the counsel for the defendants asked
the court to give several instructions to the jur}', some of which were
refused and others given with a qualification. The following is the bill
of exceptions taken in the case : —

"Be it remembered that, on the trial of this cause, the counsel for
the defendants asked the court to instruct the jury as follows : —

1 Affirmed in the Court of Errors, 5 Denio, 639 (1846). — Eu.

476 JOHNSON V. BARBER. [CHAP. IIL

"1. The court will please instruct the jury, that they must be satisfied
from the evidence that John Johnson was the agent of Peter Johnson,
employed in and about his business, and that he, John, was and did act
within the scope of his employment at the time he set fire to the prairie,
or he, Peter Johnson, is not liable, and they will acquit him, which
instruction was given by the court, with the following qualification :
' This is the law so far as Peter Johnson is sought to be made liable as
master or principal for the acts of John Johnson.'

"2. If John Johnson transcended his authority given by said Peter
Johnson, then he, said Peter, is not liable, and they, the jury, shall
acquit him. This instruction was given by the court with the same
qualification as above.

" 3. The principal is not liable for the tortious acts of the agent,
although, at the time such tortious acts were committed by the agent,
he was engaged and employed in and about the business of the principal,
unless he, the agent, in so doing, is carrying out the instructions of the
principal, or he, the principal, subsequently' assents to it. This in-
struction was given by the court with the following qualification : ' Yet
the principal may be liable for the acts of the servant or agent, while
doing the work of the principal or master without the instruction of the
principal to do the particular tortious act.'

" 4. The plaintiff is not entitled to recover of the defendants unless he
proves all the material averments in his declaration, and the loss he, the
plaintiff, has sustained, occasioned in consequence of the negligence of
the defendants in manner and form as in the said plaintiff's declaration
mentioned. This instruction was given by the court.

"5. If the injury is the effect of negligence in both parties, without any
intentional wrong or gross negligence on the part of the defendants,
then he, the plaintiff, cannot recover or maintain his action, and the jury
should find for the defendants. This instruction was given by the court.
"6. It is for the plaintiff to prove that the agent acted with the assent
or under the directions of the principal when he commits the tortious
acts, and that it cannot be presumed, although he is in the employ of
the principal, and unless it is proved they must acquit the principal.
This instruction was given with the following qualification : ' This must
be understood so far as it is sought to recover for a tortious act of
servant or agent acting in relation to the principal or master.'

" 7. The plaintiff cannot recover against both of the defendants, for if
John Johnson acted under the instructions and directions of Peter John-
son, then he, Peter, is alone liable. If John Johnson acted contrary to
the direction of Peter Johnson, then he, Peter, is not liable, and they
must acquit him. This instruction was refused by the court.^ . . .

" To the refusal of the court to give said instructions, and in giving
the said qualifications to the instructions given, . . . the defendants
excepted. ..."

1 The statement and the opinion have been abbreviated by omitting passages not
dealing with Agency. — Ed.

BECT. I.] JOHNSON V. BARBER. 477

The jury returned a verdict against the defendants. . . . The defend-
ants then entered a motion for a new trial, which the court overruled,
and rendered a judgment upon the verdict of the jury.

£. W. Tracy, for the plaintiff in error.

W. D. Barry and 0. Peters^ for the defendant in error.

The opinion of the court was delivered by —

Treat, C. J.^ The court properly qualified the first, second, and
sixth instructions. The instructions, as demanded, assumed that the
relation of master and servant existed between the defendants. The
modification confined the instructions to such a state of case.

No error was committed in adding the qualification to the third
instruction. The principal is liable to third persons for the frauds,
torts, and negligences of the agent, even though the conduct of the
agent is without his participation or consent, provided the act is done
in the course of the employment, and is not a wilful departure from it.
Story on Agency, § 452 et seq. ; Bush v. Steinman, 1 Bosanquet and
Puller, 40-i; Wright v. Wilcox, 19 Wend. 343; Foster v. Bank, 17
Mass. 479. If one of the defendants, while engaged in the prosecution
of the business of the other, carelessly or negligently set fire to the
prairie, or even purposeh', with a view to benefit or protect the interests
of the emplo3-er, the latter would be liable for the consequences ; but if
he set out the fire from motives of malice or wantonness, the principal
would not be liable, for that would be an abandonment of the business
of the agency. The instruction, as modified b}' the court, stated the
law correctl}'.

The seventh instruction was clearl}' wrong. If the act complained of
was illegal, the fact that one of the defendants committed it under the
direction of the other, did not shield him from responsibility, but both
were equally liable to the party injured, as well the one who did the
act as the one who procured it to be done. All concerned in the com-
mission of an unlawful act are responsible for the consequences. Admit
the principle asserted by this instruction, and ever\' person charged
with the commission of an act prohibited by law could excuse himself
by showing that he acted in obedience to the command or under the
direction of another. Such a doctrine would be subversive of private
rights, and detrimental to the public interests. . . .

Judgment affirmed?

1 Trumbull, .J., did not sit in this case. — Rep.

2 On joinder of defendants, see Wright v. Wilcox, ante, p. 118; Phelpe v. Wait, 30
N.Y. 78 (1864).— Ed.

478 BELL V. JOSSELYN. [CHAP. UL

BELL V. JOSSELYN.
Supreme Judicial Court of Massachusetts. 1855.

[3 Gray, 309.]

Action of tort for negligent!}* causing water to be admitted to a
water pipe in the second stor}- of a building, so that it flowed through
and from that pipe into the shop of the plaintiff in the lower story.

At the trial at January term, 1854, of the Court of Common Pleas,
before Wells, C. J., there was evidence tending to show that this
building was one of a block which belonged to the defendant's wife,
but which he managed, executing leases, receiving rents, and making
repairs in his own name ; that the Cochituate water was supplied to
this block b}' one main pipe, and distributed by branches to the several
tenements ; that one Frost was tenant at will of the room over the
plaintiff's shop, and had agreed, in part payment for his rent, to pay
the water rates for the whole block, but had neglected to do this, and
suffered the waste pipe from his sink to get clogged ; that the water
commissioners of the city of Boston had therefore cut off the supply
of water from the block ; that the defendant, being informed that one
of the tenants wanted the water, went to the water commissioners,
paid the rates, became responsible for them for the future, and directed
the water to be let on, which was done ; and that the faucet in Frost's
room was left open, so that the water, after filling the sink, overflowed,
and soaked through the floor into the plaintiff's shop and damaged his
property.

The defendant contended that the action could not be maintained
against him, because he was an agent, acting within the scope of his
authority. But the court ruled that his being an agent in a case like
the present, would not, in itself, and standing alone, be a defence to
this action.

The defendant then contended that an agent could not be held liable,
when acting within the scope of his authorit}', for a mere nonfeasance —
which he contended this was — nor for any negligence while acting
within the scope of his authority. But the court ruled that the direc-
tion to the water commissioners to let on the water, was not a nonfea-
sance, but a positive act ; and if it was done negligently, and without
the exercise of ordinary care, he would be liable for an}- injury occa-
sioned b}- the want of ordinarj' care.

The defendant further contended that he could not be liable for want
of care in Frost's room, while the tenanc}' of Frost continued. But
the court ruled that Frost's tenancy would not, of itself, be a defence
to the action ; but would diminish the amount of care which could be
reasonabl}' required of the defendant in relation to the premises which
Frost occupied.

SECT. I.] BENNETT V. BAYES. 479

" The court instructed the jury that, to enable the plaintiff to recover,
he must prove four things: 1st. That tiie defendant had the general
management and charge of the premises; 2d. That the directing of
the letting on of the water was the cause of the injury ; 3d. That in
ordering the letting on of the water, without first ascertaining that the
faucet in Frost's room was properly turned, the defendant was guilt}' of
a want of ordinar}- care, that is, such care as a man of ordinary pru-
dence would exercise in his own affairs ; 4th. That the plaintiff was in
the exercise of ordinary care when he met with the injur}'."

The jury returned a verdict for the plaintiff, and the defendant
alleged exceptions.

C. E. Allen & A. 0. Allen, for the defendant.

S. E. Sewall, for the plaintiff.

Metcalf, J. Our opinion is, that the rule of law on which the
defendant attempts to sustain these exceptions, is not applicable to
this case. Assuming that he was a mere agent, yet the injury for
which this action is brought was not caused by his nonfeasance, but b}'
his misfeasance. Nonfeasance is the omission of an act which a person
ouglit to do ; misfeasance is the improper doing of an act which a per-
son might lawfully do ; and malfeasance is the doing of an act which a
person ought not to do at all. 2 Inst. Cler. 107 ; 2 Dane Ab. 482 ; 1
Chit. PI. (6th Amer. ed.) 151 ; 1 Chit. Gen. Pract. 9. The defendant's
omission to examine the state of the pipes in the house, before causing
the water to be let on, was a nonfeasance. But if he had not caused
the water to be let on, that nonfeasance would not have injured the
plaintiff. If he had examined the pipes and left them in a proper con-
dition, and then caused the letting on of the water, there would have
been neither nonfeasance nor misfeasance. As the facts are, the non-
feasance caused the act done to be a misfeasance. But from which did
the plaintiff suffer ? Clearly from the act done, which was no less a
misfeasance b}' reason of its being preceded b}' a nonfeasance.

The instructions to the jur}' were sufficiently favorable to the defend-
ant ; and the jury, under those instructions, must have found all the
facts necessary to the maintenance of the action.

Exceptions overruled.

BENNETT v. BAYES, PENNINGTON, and HARRISON.

Exchequer. 1860.

[5 H. i<- N. 391.]

The first count of the declaration was in trespass for breaking and
entering the plaintiff's dwelling-house and disturbing the plaintiff and
his family therein, and seizing and taking the plaintiff's goods. The
second count was in trover. The third count stated, that the plaintiff

480 BENNETT V. BAYES. [CHAP. IIL

being tenant of a dwelling-house and premises to certain persons, and
there being certain arrears of rent due from him to such persons in
respect thereof, the defendants, for and on behalf of such persons, took
and carried awa}' the plaintiff's goods in the name of a distress for the
said arrears, and under color thereof improperly extorted from, and
forced and obliged the plaintiff to pay, over and above the said arrears
of rent and all lawful charges, a large sum of money ; and unlawfully
caused and forced the plaintiff to pay divers exorbitant, excessive, and
improper charges for and in respect of the said distress.

Plea. —Not guilty: by Statute 11 Geo. 11. c. 19, § 21. — Issue
thereon.^ . . .

The learned judge left the case to the jur}', who found a verdict for
the plaintiff for £97 19s. 6d., including £35 damages for the unlawful
entry of the plaintifl's house ; and leave was reserved to the defendants,
Ba3'es and Pennington, to move to enter a verdict for them.

Monk, in last Michaelmas Term, obtained a rule nisi accordingly,
on the ground that no count of the declaration was proved against
them ; nor an}' evidence given to go to the jury against them ; and that
they were not liable for the act of Harrison ; that this particular action
could not be sustained against any of the defendants ; and that no
sufficient tender of the rent and expenses was proved.
Brett^ showed cause.
Quait), in support of the rule.

Bramwell, B., now said : This was a rule to enter a verdict for the
defendants Bayes and Pennington. The material facts are these : The
plaintiff was tenant of a house at Liverpool, belonging to two persons
who resided in London. The defendants, Bayes and Pennington, were
in partnership as painters and plumbers, and were agents for the col-
lection of the rent and management of the property' of these persons
at Liverpool. The defendant Harrison was a broker. Bayes and
Pennington signed and delivered to Harrison a warrant of distress for
rent claimed from the plaintiff. At the time when they issued the war-
rant the rent was due, and the act which they required Harrison to do
was perfectly lawful. Afterwards, and before Harrison eflPected any
distress, the plaintiff tendered to Bayes and Pennington the amount of
the rent. It was argued that the tender was not good, because the
expenses were not tendered at the same time. But no authority was
adduced (and we know of none) for the purpose of showing that a per-
son intending to distrain is entitled to any expenses before he has
actually distrained ; and therefore we hold the tender good.

However, Bayes and Pennington refused the sum tendered, and after-
wards Harrison distrained ; and the question is, whether Bayes and
Pennington are liable for that act of Harrison. No question arises from
the fact of a tender having been also made to Harrison. The matter
may be rendered intelligible by this simple mode of illustration: Sup-

^ The reporter's statement of the facts is omitted. — Ed.

SECT. I.] BENNETT V. BAYES. 481

pose Rayes and Pennington had pleaded " not guilty," without
putting " b}- statute" in the margin of the plea, would they have had
a defence to this action ? Therefore the question is, whether the act
of Harrison was the act of Ba3-es and Pennington ; that is to say, an
act done by their authorlt}', so that in law they are responsible for it.
Under " not guilty" the question would be the same whether there had
or had not been a tender to Harrison. The warrant was in the usual
form, and was signed hy Bayes and Pennington for the landlords. It
occurred to my brother Chankell and mj'self, who together with my
brother Martin heard this case, that it was doubtful whether, under the
circumstances, Bayes and Pennington could be liable for the act of
Harrison, — whetlier in fact they were anything more than a mere con-
duit-pipe for communicating authority from the landlords to Harrison.
For my own part, and I believe I may say for my brother Channell,
if there had been nothing more we should have continued to entertain
great doubt whether they would have been liable. It is certain that a
messenger who delivers a letter containing a warrant of distress, not
knowing the contents of the letter, is not responsil)le ; and I cannot
help thinking that if a servant was sent with this message to a broker,
" My master desires you to distrain for rent due to hira," the servant
would not be liable as a person ordering or committing the trespass. So,
if a person wrote a letter in these terms, "My friend, having a bad
hand, is unable to write, and he requests me to write and tell you to
distrain on his tenant," it is difficult to say that a person so writing
would be liable to an action. But in order to show that our doubt
is not unfounded, I would refer to Story on Agency, sec. 313, and the
cases which are collected and extremeh' well stated in Smith's Master
and Servant, p. 216 ; also to Sands v. Child, 3 Lev. 351. That was an
action for suing in the admiralty for a matter done on the laud, and
thereby staying the plaintiff's ship bound for the East Indies. There
was a special verdict, and it was found " that all this was done bv the
defendants as agents of the East India Compan}'." After judgment
for the plaintiff a writ of error was brought, and it was argued : " That
this whole affair being transacted on behalf of the company, the action
ought to have been brought against the company, and not against the
defendants, their servants. But all this was overruled b}' both courts ;
for, first, this is not like the case in Godbolt, 185, where one sued in
the admiralty for another, by a warrant of attorne}', as his agent: for
here it is not found that the}' had any warrant of attornej', and they
must have done this of their own heads. Secondly, if it had been
done by warrant of attorne}- from the corapan}", yet that would not
excuse the matter, for the warrant of no man, not even of the king
himself, can excuse the doing of an illegal act ; for although the com-
manders are trespassers, so are also the persons who did the fact." [It
is put there on their doing the " fact," as it is called.] The same doc-
trine is laid down by Holt, C. J., in his judgment in Lane v. Cotton,
12 Mod. 473, 488, and also in Thompson v, Gibson, 7 M. & W. 456,

482 BENNETT V. BAYES. [CHAP. III.

and Perkins v. Smith, 1 Wils. 328. The marginal note of the latter
case is: "Trover lies against a servant who disposes of goods, the
property of another, to his master's use, whether he has any authority
or not from his master for so doing." The Chief Justice said : " The
point is, whether tlie defendant is not a tort-feasor, for if he is so no
authority that he can derive from his master can excuse him from
being liable in this action.^ [Hughes, the bankrupt, bad no right
to deliver these goods to Smith. The gist of trover is the detainer
or disposal of goods, which are the property 6f another, wrongfully ;
and it is found that the defendant disposed of them to his master's use,
which his master could give him no authority to do." That is an
authority for the purpose of showing that the defendant in such case
would be liable because it was his act. Now, it was said that if a
man commanded a person to go to a third person, the person bringing
the message would be liable to an action. I think it quite clear tluit no
man could communicate authority to another to commit a wrongful act ;
but at the time the defendant gave this order the act was not wrongful.
Therefore, if the defendant had appeared to be in the position indi-
cated in these cases, my brother Channels and I should have been, I
think, rather confirmed in our doubts than otherwise.] It seems to us,
however, that the matter is not purely one of law, but also of fact, and
upon examination of all the circumstances we think that the defend-
ants, Bayes and Pennington were more than mere transmitters of
authority from one person to another, and that they themselves were
actuallv ordering the distress to be made. [It is not necessary to say
whether they would have been liable to Harrison for his costs and ex-
penses, or whether he would have been liable to them if he had miscon-
ducted himself in the distress. Very probably, however, both these things
would be so. At all events, we look on these defendants as the per-
sons who are themselves ordering the act to be done, and not merely
communicating an authority to a third person.] If that be so, they are
as much the persons who have done the act as if their own hands had
done it, and the result is that the rule must be discharged. This is the
judgment of the whole court, but my brother Martin does not parti-
cipate in the doubt which my brother Channell and myself entertained.

Mule discharged."^

1 According to the report in 5 H. & N. 391, Bramwell, B., here said: "There-
fore a servant or agent is liable for a misfeasance because he is a wrongdoer. But it
is said that the issuing the warrant of distress was not wrongful."

The passages in brackets are from the report in 29 L. J. N. s. Ex. 224. — Ed.

2 See Bates v. PiUing, 6 B. & C. 38 (1826). — Ed.

SECT. I.J HOKNER V LAWRENCE. 483

HORNER V. LAWRENCE.
Supreme Couut of New Jersey. 1874
[37 A^. J. L. 40.]

On certiorari to the Burlington Pleas.

Argued at November Term, 1873, before Justices Bedle, Dalrimple,
and ScuDDER.

For the plaintiff in certiorari, F. Voorhees.

For the defendant, Kingman.

The opinion of the court was delivered bj-

Bedle, J. Lawrence had two hogs in pasture upon Lamb's farm, in
a field adjoining a strip of woodland owned by Forsyth, but separated
by a worm fence, and through which woodland ran the Camden and
Burlington County Railroad. Forsyth procured the wood upon his
land to be cut, and employed Horner with two teams to haul it at a
certain sum per day for each team. Forsyth lived about five miles from
the woodland, and Horner about a mile from Forsyth. The case shows
no instruction from Forsyth to Horner how to reach the woodland, but
it appears that to get the wood it was necessary to go through the field
where the hogs were being pastured. There are no facts, however,
showing that Forsyth had any right to a way by necessity' over Lamb's
land. Horner saw Lamb and got permission from him to open a gap
in the fence at a certain place, but with directions to close it up after
he went in and after he came out, and also stating " that there were
hogs and cattle in the field adjoining, which might get through and on
to the railroad and get killed." Horner opened the gap and passed
through with his two teams and wagons and a hired man, leaving the
gap open while the wagons were being loaded, but closing it after
driving out. This occurred twice on one day and once on the next.

Without referring further to the evidence, the case shows sufficient
to justif}' the Pleas in finding that the hogs escaped through the gap,
and that one was killed and the other injured upon the railroad. But
it is said that there can be no recoverj', because Horner was the agent
or servant of Forsyth, and that the failure of Horner to put up the bars,
was a mere neglect of dut}^ in the course of such agency, for which he
should be responsible only to his principal.

Whether, in answer to that, Horner was engaged in an independent
employment, or whether the immunity of an agent or servant to a third
person extends beyond mere neglects in the scope of an agency arising
out of or in reference to matters, in the nature of contracts between
the principal and third parties (Shearm. «fe Red. on Neg. §§ 111, 112),
or what the exact limit of responsibility may be, need not now be set-
tled, for the evidence is such that the court below could have considered
Horner as having wilfully left down the bars, and thereby became re-
sponsible for his own tort, without reference to any question of agencj-.

484 OSBORNE V. MORGAN. [CHAP. IIL

He had no directions from Forsyth how to go upon the wood lot, or
how to manage with the fence. It does not appear that he informed
Forsyth of Lamb's permission, but if Horner is considered as Forsyth's
servant he could onl}-, at best, stand as a servant, with authority- from
Forsyth, precisely the same as the permission given by Lamb, and
subject to the direction that he should close up the fence, while the
wagons were being loaded, to prevent the escape of the hogs. Now,
according to the fair and natural conclusion of the case, Horner pur-
poselj- left down the fence and trusted to watching the gap, so as to
prevent the hogs from going through, if the}' should attempt it. They
escaped his vision, no doubt, while he and his hired man had forgotten
their sentr^'duty at the gap. His conduct was not mere neglect, — it
was intentional and wilful violation of his authority. It was his own
misfeasance, for which, as servant, he cannot, in any respect, claim
exemption against the party injured.

This view of the case sustains the judgment below, and it should be
affirmed.

OSBORNE V. MORGAN and others.
Supreme Judicial Court of Massachusetts. 1881.

[130 Mass. 102.]

Gray, C. J. The declaration is in tort, and the material allegations
of fact, which are admitted by the demurrer, are that while the plaintiff
was at work as a carpenter in the establishment of a manufacturing
corporation, putting up by direction of the corporation certain parti-
tions in a room in which the corporation was conducting the business
of making wire, the defendants, one the superintendent and the others
agents and servants of the corporation, being employed in that business,
negligently, and without regard to the safety of persons rightfully in
the room, placed a tackle-block and chains upon an iron rail suspended
from the ceiling of the room, and suffered them to remain there in such
a manner, and so unprotected from falling, that b}' reason thereof they
fell upon and injured the plaintiff. Upon these facts, the plaintiff was
a fellow-servant of the defendants. Far well v. Boston & Worcester
Railroad, 4 Met. 49 ; Albro v. Agawam Canal, 6 Cush. 75 ; Oilman v.
Eastern Railroad, 10 Allen, 233, and 13 Allen, 433 ; Holden v. Fitch-
burg Railroad, 129 Mass. 268 ; Morgan v. Vale of Neath Railway, 5
B. & S. 570, 736, and L. R. 1 Q. B. 149.

The ruling sustaining the demurrer was based upon the judgment
of this court, delivered b}- Mr. Justice Merrick, in Albro v. Jaquith, 4
Gray, 99, in which it was held that a person employed in the mill of a
manufacturing corporation, who sustained injuries from the escape of
inflammable gas, occasioned by the negligence and unskilfulness of the

SECT. I.] OSBORNE V. MORGAN. 485

superintendent of the mill in the management of the apparatus and
fixtures used for the purpose of generating, containing, conducting,
and burning the gas for the lighting of the mill, could not maintain an
action against the superintendent. But, upon consideration, we are all
of opinion that that judgment is supported b}- no satisfactory- reasons,
and must be overruled.

The principal reason assigned was, that no misfeasance or positive
act of wrong was charged, and that for nonfeasance, which was merely
negligence in the performance of a dut}' arising from some express or
implied contract with his principal or employer, an agent or servant
was responsible to him only, and not to an}- third person. It is often
said in the books, that an agent is responsible to third persons for
misfeasance onlj-, and not for nonfeasance. And it is doubtless true
that if an agent never does anything towards carrying out his contract
with his principal, but wholl}- omits and neglects to do so, the principal
is the only person who can maintain an}- action against him for the
nonfeasance. But if the agent once actually undertakes and enters
upon the execution of a particular work, it is his duty to use reasonable
care in the manner of executing it, so as not to cause any injury to
tliird persons which may be the natural consequence of his acts; and
he cannot, by abandoning its execution midway and leaving things in a
dangerous condition, exempt himself from liability to any person who
suffers injury by reason of his having so left them without proper safe-
guards. This is not nonfeasance, or doing nothing ; but it is mis-
feasance, doing improperly. Ulpian, in Dig. 9, 2, 27, 9 ; Parsons v.
Winchell, 5 Cush. 592 ; Bell v. Josselyn, 3 Gray, 309 ; Nowell v. Wright,
3 Allen, 166 ; Horner o. Lawrence, 8 Vroom, 46. Negligence and un-
skilfulness in the management of inflammable gas, by reason of which
it escapes and causes injury, can no more be considered as mere non-
feasance, within the meaning of the rule relied on, than negligence in
the control of fire, as in the case in the Pandects ; or of water, as in
Bell V. Josselyn ; or of a drawbridge, as in Nowell v. Wright, or of
domestic animals, as in Parsons v. Winchell, and in the case in New
Jersey.

In the case at bar, the negligent hanging and keeping by the defendants
of the block and chains, in such a place and manner as to be in danger
of falling upon persons underneath, was a misfeasance or improper
dealing with instruments in the defendants' actual use or control, for
which they are responsible to any person lawfully in the room and injured
by the fall, and who is not prevented by his relation to the defendants
from maintaining the action. Both the ground of action and the meas-
ure of damages of the plaintiff are different from those of the master.
The master's right of action against the defendants would be founded
upon his contract with them, and his damages would be for the injury
to his property, and could not include the injury to the person of this
plaintiff, because the master could not be made liable to him for such
an injury resulting from the fault of fellow-servants, unless the master

486 OSBORNE V. MORGAN. [CHAP. III.

had himself been guilty of negligence in selecting or employing them.
The plaintiff's action is not founded on any contract, but is an action
of tort for injuries which, according to the coumion experience of man-
kind, were a natural consequence of the defendants' negligence. The
fact that a wrongful act is a breacli of a contract between the wrong-
doer and one person does not exempt him from the responsibility for
it as a tort to a third person injured thereby. Hawkesworth v. Thomp-
son, 98 Mass. 77; Norton v. Sewall, 106 Mass. 143; May v. Western
Union Telegraph, 112 Mass. 90 ; Grinnell v. Western Union Telegraph,
113 Mass. 299, 305 ; Ames v. Union Railway, 117 Mass. 541 ; Mulchey
V. Methodist Religious Society, 125 Mass. 487 ; Rapson v. Cubitt, 9
M. & W. 710 ; George v. Skivington. L. R. 5 Ex. 1 ; Parry v. Smith,

4 C. P. D. 325 ; Foulkes v. Metropolitan Railway, 4 C. P. D. 267, and

5 C. P. D. 157. This case does not require us to consider whether
a contractor or a servant, who has completed a vehicle, engine, or
fixture, and has delivered it to his employer, can be held responsible
for an injury afterwards suffered by a third person from a defect in its
original construction. See Winterbottom v. Wright, 10 M. & W. 109 ;
Collis V. Selden, L. R. 3 C. P. 495 ; Albany v. Cunliff, 2 Comst. 165 ;
Thomas v. Winchester, 2 Selden, 397, 408 ; Coughtry v. Globe Woollen
Co., 56 N. Y. 124, 127.

It was further suggested in Albro v. Jaquith, that many of the con-
siderations of justice and policy', which led to the adoption of the rule
that a master is not responsible to one of his servants for the injurious
consequences of negligence of the others, were equally applicable to
actions brought for like causes by one servant against another. The
onl}' such considerations specified were that the servant, in either case,
is presumed to understand and appreciate the ordinary risk and peril
incident to the service, and to predicate his compensation, in some
measure, upon the extent of the hazard he assumes; and that "the
knowledge, that no legal redress is afforded for damages occasioned by
the inattention or unfaithfulness of other laborers engaged in the same
common work, will naturally induce each one to be not only a strict
observer of the conduct of others, but to be more prudent and careful
himself, and thus by increased vigilance to promote the welfare and
safet}' of all." The cases cited in support of these suggestions were
Fai-well V. Boston & Worcester Railroad, 4 Met. 49, and King v. Boston
& Worcester Railroad, 9 Gush. 112, each of which was an action by
a servant against the master ; and it is hard to see the force of the sug-
gestions as applied to an action by one servant against another servant.

Even the master is not exempt from liability to his servants for his
own negligence ; and the servants make no contract with, and receive
no compensation from, each other. It may well be doubted whether
a knowledge, on the part of the servants, that they were in no event
to be responsible in damages to one another, would tend to make each
more careful and prudent himself. And the mention by Chief Justice
Shaw, in Farwell v. Boston & Worcester Railroad, of the opportunity

SECT. I.] OSBORNE V. MORGAN. 487

of servants, when emplo3'ed together, to observe the conduct of each
other, and to give notice to their common employer of any misconduct,
incapacity, or neglect of duty, was accompanied b}- a cautious with-
holding of all opinion upon the question whether the plaintiff had a
remedy against the person actually in default ; and was followed by the
statement (upon which the decision of that case turned, and which
has been atfirmed in subsequent cases, some of which have been cited
at the beginning of tljis opinion), that the rule exempting the master
from liabilit}' to one servant for the fault of a fellow-servant did not
depend upon the existence of any such opportunity, but extended to
cases in which the two servants were employed in different departments
of duty and at a distance from each other. 4 Met. 59-61.

So far as we are informed, there is nothing in any other reported
case, in England or in this country, which countenances the defendants'
position, except in Southcote v. Stanle}-, 1 H. & N. 247 ; S. C. 25 L. J.
(N. S.) Ex. 339 ; decided in the Court of Exchequer in 1856, in which
the action was against the master, and Chief Baron Pollock and Barons
Alderson and Bramwell severally delivered oral opinions at the close of
the argument. According to one report. Chief Baron Pollock uttered
this dictum : "Neither can one servant maintain an action against
another for negligence while engaged in their common employment."
1 H. «&; N. 250. But the other report contains no such dictum, and
represents Baron Alderson as remarking that he was " not prepared to
say that the person actually causing the negligence " (evidently mean-
ing " causing the injur}'," or " guilt}- of the negligence "), " whether
the master or servant, would not be liable." 25 L. J. (N. S.) Ex. 340.
The responsibility of one servant for an injury caused by his own negli-
gence to a fellow-servant was admitted in two considered judgments of
the same court, the one delivered by Baron Alderson four months before
the decision in Southcote v. Stanley, and the other by Baron Bramwell
eight months afterwards. Wiggett v. Fox, 11 Exch. 832, 839 ; Degg
V. Midland Railway, 1 H. & N. 773, 781. It has since been clearly
asserted by Barons Pollock and Huddleston. Swainson y. Northeastern
Railway, 3 Ex. D. 341, 343. And it has been affirmed by direct adju-
dication in Scotland, in Indiana, and in Minnesota. Wright r. Rox-
burg, 2 Ct. of Sess. Cas. (3d series) 748 ; Hinds v. Harbou, 58 Ind. 121 ;
Hinds y.Overacker, 66 Ind. 547; Griffiths v. Wolfram, 22 Minn. 185.

Exceptions sustained.

G. F. Verry & H. L. Parker, for the plaintiff.

W. S. B. Hopkins & F. T. Blackmer for the defendants.^

1 In Delauey v. Rochereau, 34 La. Ann. 1123, 1128 (1882), Bermcdez, C. J., said : —
" At common law, an agent is personally responsible to third parties for doing
something which he ought not to have done, but not for not doing something which
he ought to have done, the agent, in tlie latter case, being liable to his principal only.
For non-feasance, or mere neglect in the performance of duty, the responsibility there-
for must arise from some express or implied obligation between particular parties
standing in privity of law or contract with each other. No man is bound to answer for

488 WEBER V. WEBER. [CHAP. IIL

GEORGE L. WEBER v. CAROLINE WEBER.

Supreme Court of Michigan. 1882.

[47 Mich. 569.]

Case. Plaintiff brings error. Reversed.

M. E. Dotoling, for plaintiff in error.

D. C Holbrooke for defendant in error.

Campbell, J. Plaintiff sued defendant in case for making false
representations to him concerning the freedom from encumbrance of
certain land which she sold to him as agent for her husband Henry
Weber. The declaration contains full averments showing the purchase
and payment to have been made in reliance on these representations, —
their wilful falsehood, and the loss of the entii-e premises by sale under
the mortgage which existed, and which defendant had said did not exist,
b}' declaring that there was no encumbrance whatever.

Defendant demurred to the declaration on the grounds — firsts that
defendant was Henry Weber's wife and that he should have been made
co-defendant ; second^ that defendant is not averred to have been in-
terested in the property ; thirds that it does not appear the represen-
tations were made at Henr}' Weber's request and by his authorit3' ; and
fourth, that the mortgage being recorded was notice. The court below
sustained the demurrer, and gave judgment for defendant.

It is not now claimed that the fact that the mortgage was recorded
was of any importance. Where positive representations are made con-
cerning a title for fraudulent purposes, and are relied on, it can hardly
be insisted that what would be merely constructive notice in the absence
of such declarations will prevent a person from having the right to rely
on statements which if true would render a search unnecessaiy. And
it is not necessaril}' true that a recorded mortgage is unpaid, merely
because not discharged.

Neither is it true that an agent is exempt from liability for fraud
knowingly committed on behalf of his principal. A person cannot
avoid responsibility merely because he gets no personal advantage
from his fraud. All persons who are active in defrauding others are
liable for what they do, whether they act in one capacity or another.
No one can lawfully pursue a knowingly- fraudulent employment ; and
while it may be true that the principal is often liable for the fraud of

such violation of duty or obligation except to those to whom he has become directly
bound or amenable for his conduct.

"Every one, whether he is principal or agent, is responsible directly to persons
injured by his own negligence, in fulfilling obligations resting upon him in his individual
character and which the law imposes upon him, independent of contract. No man
increases or diminishes his obligations to strangers by l)ecoming an agent. If, in the
course of his agency, he comes in contact with the person or property of a stranger, he
is liable for any injury he may do to either, by his negligence, in respect to duties
imposed by law upon him in common with all other men." — Ed.

SECT. 1.] FELTUS V. SWAN. 489

his agent though himself honest, his own fraud will not exonerate his
fraudulent agent. Starkweather v. Benjamin, 32 Mich. 306 ; Josselyn
V. McAllister, 22 Mich. 300.

If liable at all, the agent may as well be sued separatel}', as any
other joint wrong-doer. It is not usually necessary to sue jointly in
tort. And we do not think that under our present statutes the case of
husband and wife makes any different rule applicable. At common law
the husband was liable personally for his wife's torts, and she could not
be sued without him. But under our statutes now, that liability has
been abolished, and she is solely responsible for them. Comp. L.
§§ 6129, 7382. This being the ease, we can see no ground for
joining them in a suit, unless both are sued as wrong-doers. The
evident purpose of the law was to put him, as to her personal wrongs,
on the same footing with an}' third person.

The demurrer should have been overruled. The judgment below
must be reversed, with costs of both courts, and the defendant required
to answer over, within twenty da3S.

The other Justices concurred.^

FELTUS ET AL. V. SWAN.
Supreme Court of Mississippi. 1884.

[62 Miss. 415.]

Appeal from the Circuit Court of Wilkinson Count}'. Hon. J. B.
Chrisman, Judge.

This is an action for damages, brought on September 3, 1884, by
J. A. V. Feltus and others, against D. D. Withers and B. P. Swan.
The declaration avers that the plaintiffs own a plantation known as
Deer Park, and that defendant Withers owns an adjoining plantation
known as Lochdale, "which is and has been for more than ten years
past under the charge and control of defendant Withers, as the owner
thereof, and defendant B. P. Swan, as the manager and agent thereof,
and that more than ten years ago a levee was built b}' the respective
owners of said plantations, and from thence until now has remained for

1 In Cullen v. Thomson's Trustees, 4 Macq. 424, 432-4.33 (1862), Lord Westbury
said : " Can it be maintained as a proposition of law that a servant who knowingly
joins with and assists his master in the commission of a fraud is not civilly responsible
for the consequences ? All persons directly concerned in the commission of a fraud
are to be treated as principals. No party can be permitted to excuse himself on the
ground that he acted as the agent or as the servant of another ; and the reason is
plain, — for the contract of agency or of service cannot impose any obligation on
the agent or servant to commit or assist in the committing of fraud." In the same
case, at p. 441, Lord Wexsleydale said : " In some cases a man may innocently assist
in a transaction which is a fraud on some one. Of course, such a person cannot be
responsible criminally or civilly." — Ed.

490 FELTUS V. SWAN. [CHAP. III.

the joint protection thereof against high waters, and it has always been
the custom, and plaintiffs were entitled to have the waters from time
to time collecting behind and back of said levee, and being in and upon
their said land, from rain, sipage, and overflow, drained and carried
away from the same through a certain drain, cut and run around, in,
and through said Lochdale plantation, and thence off of plaintiffs' said
land, and that it was the dut}' of defendants, owning and occupying
the adjoining close and plantation aforesaid, to open the said drain,
that the water might be drained off of plaintiffs' land aforesaid, and
plaintiffs' land could onl^- be drained through defendants' said close
and i)lantation ; that during the year 1884, from January- 1 to Sep-
tember 1, large quantities of water, from rain, sipage, and overflow,
collected in and driven back upon plaintifll's' land, were obstructed and
prevented from running off" and away from the land bj' defendants'
neglecting and refusing to open the drain aforesaid, which it was their
duty to do, and by reason of such neglect and refusal the aforesaid
land of plaintiffs for the time aforesaid was rendered unfit to cultivate,
and greatly damaged, etc."

Swan demurred to the declaration on the ground that, as the agent
of Withers, he was not liable for the acts, omission, and neglect averred
in the declaration. The court sustained the demurrer, and the plain-
tiflJs asked leave to amend their declaration bj- inserting words therein
charging that the neglect and refusal which it was declared produced
the damage to the plaintiffs " was malicious, and with the intention of
injuring the plaintiffs' aforesaid lands." The court refused to grant
such leave, and dismissed the action as to Swan. The plaintiffs dis-
missed as to Withers and appealed against Swan.

C. P. Neilson and D. C. Bramlett^ for the appellants. It is not
clear that the injur}* complained of is a mere non-feasance of the
agent, — in fact, it occurs to us that we charge a positive wrong.
This must be apparent to an\' one acquainted in theory or fact with the
levee system of the Mississippi River. In times of high water, back of
all or nearly all levees large qnantities of water collect to the height of
the river water in front, and this back water must be drained off as the
river recedes, otherwise it is more damaging than to have welcomed
the overflow. And it is also true that there are natural drains in many
sections, through which only the water from a large area of land may
be carried off. But whellier the wrong charged is a misfeasance or
non-feasance, we contend that it is an exception to the general rule
which exempts a servant from personal liabilitv to a third person for
injuries done by negligence in the discharge of his duties. Here is a
most flagrant outrage done, causing great damage, which was alone in
the power of appellee and Withers to avert, and the}" are equall}' liable
under the declaration here, and were properly joined. See 1 Wait's
Act. and Def. 264-265 ; Addison on Torts, 3d ed. 933. It was error in
the court below to deny our application to amend our declaration.

Carson, Shields db Carson, for the appellee.

SECT. I.] BAIRD 'V. SHIPxMAN. 491

Campbell, C. J., delivered the opinion of the court.

The appellee, being a mere agent, was not liable for an omission of
dut}', except to his principal. Story Ag. §§ 308, 309 ; Wharton Ag.
§§ 535, 53G ; Dulap's Paley's Ag. 396.

The proposed amendment would not have made the declaration good,
for whatever motive operated on the agent, the charge against him was
only that he had failed to do, and not that he had done anything
maliciousl}', and for non-feasance or omission to act at all the agent is
answerable only to his employer. Affirmed.

BAIRD ET AL. V. SHIPMAN, Administrator.
Supreme Court of Illinois. 1890.

[132///. 16.]

Appeal from the Appellate Court for the First District, heard in
that court on appeal from the Circuit Court of Cook county ; the Hon.
Frank Baker, Judge, presiding.

The following opinion of the Appellate Court fully presents the ques-
tions arising upon this record : —

Garnett, p. J. " This is an appeal from a judgment for damages^
founded on the alleged negligence of appellants, bj- which the death of
Joseph Garnett, appellee's intestate, is said to have been caused. The
place where the injur}- happened was in a barn situated on premises on
Michigan avenue, in Chicago, belonging to Aaron C. Goodman, who
was then, and for several years before, a resident of Hartford, Con-
necticut. Appellants were his agents for renting the premises during
the years 1884 and 1885, and during both years were carrying on the
real estate business in Chicago. On the trial, evidence was given tend-
ing to show that they had, in fact, complete control of tlie premises,
with the residence and barn thereon, repairing the same in their discre-
tion, and there was no proof that in such matters they received any
directions from the owner. The propert}' was rented b}' appellants
to Emma R. Wheeler and A. R. Tillman from April 1, 1884, to April
30, 1885, and to Emma R. AVheeler from May 1, 1885, to April 30,
1886. Both leases were in writing, and by the terms of each lease
the tenants covenanted to keep the premises in good repair. The
tenant in the last lease rented the premises to Nellie E. Pierce, who
occupied the same from April 28, to September, 1885. The evidence
tends to prove that when the lease was made to Emma R. Wheeler, the
large carriage door to the barn was in a very insecure condition, and
that appellants, through one Warner, the manager of their renting
department, verbally agreed with Mrs. Wheeler to put the premises in
thorough repair. Nothing was done to improve the condition of the

492 BAIIiD V. SHIFMAN. [CHAP. III.

door, and on June 12, 1885, while the deceased, an expressman bj'
occupation, was engaged in delivering a load of kindling in the barn,
for one of the parties living in the liouse, the door, weighing about four
hundred pounds, fell from its fastenings, and injured him to such an
extent that he died the next da}".

"Appellants make two points: First, that the verdict is clearly
against the weight of the evidence ; second, that they were the agents
of the owner, Goodman, and liable to him only, for an}- negligence
attributable to them.

" There is nothing more than the ordinary conflict of evidence found
in such cases, presenting a question of fact for the jury, and the finding
must be respected b\' this court in deference to the wGll-settled rule.

" The other point is not so easily disposed of. An agent is liable to
his principal only for mere breach of his contract with his principal.
He must have due regard to the rights and safet}' of third persons.
He cannot, in all cases, find shelter behind his principal. If, in the
course of his agenc}', he is entrusted with a dangerous machine, to
guard himself from personal liability he must use proper care in its
management and supervision, so that others in the use of ordinary
care, will not suffer in life, limb, or propert}'. Suydam v. Moore, 8
Barb. 358 ; Phelps v. Wait, 30 N. Y. 78. It is not his contract with the
principal which exposes him to, or protects him from, liabilit}- to tliird
persons, but his common-law obligation to so use that which he con-
trols as not to injure another. That obligation is neither increased
nor diminished b}' his entrance upon the duties of agenc}', nor can its
breach be excused by the plea that his principal is chargeable. Delaney
V. Rochereau, 34 La. Ann. 1123.

"If the agent once actually undertakes and enters upon the execu-
tion of a particular work, it is his duty to use reasonable care in the
manner of executing it, so as not to cause any injur}- to third persons
which may be the natural consequence of his acts, and he cannot, by
abandoning its execution midway, and leaving things in a dangerous
condition, by reason of his having so left them without proper safe-
guards. Osborne v. Morgan, 130 Mass. 102.

"A number of authorities charge the agent, in such cases, on the
ground of misfeasance, as distinguished from non-feasance. Mechem,
in his work on Agency (sec. 572), says: 'Some confusion has crept
into certain cases from failure to observe clearly the distinction between
non-feasance and misfeasance. As has been seen, the agent is not
liable to strangers for injuries sustained by them because he did not
undertake the performance of some duty which he owed to his principal
and imposed upon him by his relation, which is non-feasance. Mis-
feasance may involve, also, to some extent the idea of not doing, as,
where the agent, wliile engaged in the performance of his undertaking,
does not do something which it was his duty to do under the circum-
stances, — does not take that precaution, does not exercise that care,
which a due regard for the rights of others requires. All this is not

SECT. I.] BAIRD V. SHIPMAN. 493

doing, but it is not the not doing of that which is imposed upon the
agent merely by virtue of his relation, but of that which is imposed
upon him b}' law as a responsible individual, in common with all otlier
members of society. It is the same not doing which constitutes action-
able negligence in any relation.' To the same effect are Lottnian v.
Barnett, 0)2 Mo. 151) ; Martin v. Benoist, 20 Mo. App. 263 ; Harriman
V. Stowe, 57 Mo. 93 ; and Bell v. Josselyn, 3 Gray, 309.

" A case parallel to that now in hand is Campbell v. Portland Sugar
Co., 62 Me. 552, where agents of the Portland Sugar Company had the
charge and management of a wharf belonging to tlie company, and
rented the same to tenants, agreeing to keep it in repair. They allowed
the covering to become old, worn, and insecure, by means of which the
plaintiff was injured. The court held the agents were equally respon-
sil)le to the injured person with their principals.

"■ Wharton, in his work on Negligence (sec. 535), insists that the
distinction, in this class of cases, between non-feasance and misfeas-
ance, can no longer be sustained ; that the true doctrine is, that when
an agent is employed to work on a particular thing, and has surren-
dered the thing in question into the principal's hands, then the agent
ceases to be liable to third persons for hurt received by them from such
thing, though the hurt is remotelj' due to the agent's negligence, the
reason being, that the causal relation between the agent and the person
hurt is broken by the interposition of the principal as a distinct centre
of legal responsibilities and duties, but that wherever there is no such
interruption of causal connection, and the agent's negligence directly
injures a stranger, the agent having liberty of action in respect to the
injur}-, then such stranger can recover from the agent damages for the
injury. The rule, whether as stated b}' Mechem or "Wharton, is suffi-
cient to charge appellants witli damages under the circumstances dis-
closed in this record. They had the same control of the premises in
question as the owner would have had if he had resided in Chicago,
and attended to his own leasing and repairing. In that respect, appel-
lants remained in control of the premises until the door fell upon the
deceased. There was no interruption of the causal relation between
them and the injured man. They were, in fact, for the time being,
substituted in the place of the owner, so far as the control and man-
agement of the property was concerned. The principle that makes an
independent contractor, to whose control premises upon which he is
working are surrendered, liable for damages to strangers caused by his
negligence, although he is at the time doing the work under contract
with the owner (Wharton on Negligence, sec. 440), would seem to be
sufficient to hold appellants. The owner of cattle, who places them in
the hands of an agister, is not liable for damages committed b}' them
while the}- are under the control of the agister. It is the possession
and control of the cattle which fix the liability, and the law imposes
upon the agister the duty to protect strangers from injur}' by them.
Ward V. Brown, 64 111. 307 ; Ozburn v. Adams, 70 id. 29l/

494 BALLOU V. TALBOT. [CHAP. III.

"When appellants rented the premises to Mrs. Wheeler, in the dan-
gerous condition shown b}' the evidence, they voluntarily set in motion
an agenc}', which, in the ordinary and natural course of events, would
expose persons entering the barn to personal injury. Use of the barn
for the purpose for which it was used when the deceased came to his
death, was one of its ordinary and appropriate uses, and might, by
ordinary' foresight, have been anticipated. If the insecure condition
of the door fastenings had arisen after the letting to Mrs. Wheeler, a
different question would be presented ; but as it existed before and at
the time of the letting, the owner or persons in control are chargeable
with the consequences. Gridley v. Bloomington, 68 111. 47 ; Tomle v.
Hampton, 129 Id. 379.

" Neither error is well assigned, and the judgment is affirmed."

X. H. Boutell, for the appellant.

Cameron & Hughes, for the appellee.

Per Curiam. We full^' concur in the legal proposition asserted in
the foregoing opinion, and deem it unnecessary to add to what is
therein said in support of that proposition.

The judgment is affirmed.'

SECTION II.

Unauthorized Contracts.

BALLOU V. TALBOT.
Supreme Judicial Court of Massachusetts, 1820.

[16 il/ass. 461.]

The declaration was " in a plea of the case for that the said Talbot,
at, &c., on, &c., by his note of that date, by him subscribed, for value
received, promised the plaintiff to pay him, or his order, $380 on de-
mand with interest," &c.

Trial on the general issue, in May last, before Jackson, J., at Taun-
ton. The note produced was signed by the defendant, and, after his
name, were added the words " agent for David Perry." The defendant
objected that this evidence did not comport with the declaration. The
plaintiff offered to prove, that the defendant was not authorized to
make the note, as agent for Perry. The defendant contended that, if
that was the fact, still the plaintiff could not recover in this action ;

1 See Campbell v. Portland Sugar Co., 62 Me. 552 (1873).

Cases on conversion by agents are collected in 1 Ames & Smith's Cases on Torts,
307-341. — Ed.

SECT. II.] BALLOU V. TALBOT. 495

and that be should have brought a special action on the case, setting
forth that the defendant undertook to act as agent, and pretended to
have sucii authority, when he was not authorized.

The judge overruled this objection, intending to reserve the question
for the consideration of the whole court. The trial proceeded, and
the plaintiff obtained a verdict on the ground that the defendant was
not authorized to sign the note, as agent to Perry.

If, in the opinion of the court, the plaintiff was entitled to recover
under these circumstances, judgment was to be rendered on the ver-
dict ; otherwise the plaintiff was to become nonsuit, or such order
made in the cause as to the Court should seem proper.
W. and J^. Baylies^ for the defendant.

Morton^ for the plaintiff.

Parker, C. J. The question in this case is not whether the defendant
is liable for having undertaken to make the promise for Perry, but
whether the note declared on is the note of the defendant.

It is obvious, from the signature, that it was neither given nor re-
ceived as the defendant's note. It is found by the jury, that he had no
authority to sign it for Perry ; but the legal inference from this fact is,
not that it became his promise directly, but that he is answerable in
damages for acting without authorit}'. What is stated in the case of
Long V. Colburn, as an intimation of the court, was undoubtedly a
settled opinion, viz., that, in such case, a special action upon the case
would be the proper action.

One way, and perhaps the best way, to ascertain whether a party is
sued in the right form of action, is to see of what fact the declaration
gives him notice, and whether that constitutes substantially the contract
to which he is called to answer. In the case before us the defendant is
charged with having made a promissory' note to the plaintiff. The evi-
dence produced is apparentl}' the note of another. But he wrongfully
made this note for the other. This is entirely new ground, of which
the declaration gave him no notice, and which he cannot be expected
to be prepared to answer.

Besides, if the note is to be considered as evidence of the defendant's
own promise, he must pa}' according to the tenor of it ; whereas, if he
were sued for falsely assuming an authorit\', he might defend himself
b}- showing that the person, for whom he assumed to act, had after-
wards ratified his act, or that he had otherwise satisfied the debt for
which the note was given, or perhaps, he might show that no debt was
due for which the note was given, or that he had authority to make it.
It is, in short, a proper subject for a special action, in which damages
will be recovered according to the injury sustained.

In the cases cited bj- the plaintiffs counsel, the parties held per-
sonall}' liable, either made themselves so by the terms of the contract,
though purporting to act for another, or they acted in certain capacities
in which they had no right to bind the estate of those for whom they
undertook to act. In the case before us, the promise was avowedly

496 POLHILL V. WALTER. [CHAP. III.

made b}- the defendant for Perry ; and it was matter of evidence,
extrinsic to the contract, whether he had authority or not. The verdict
is set aside, and the plaintifif must be called.

Plamtiff nonsuit}

POLHILL V. WALTER.

King's Bench. 1832.

[3 B.^- Ad. 114.]

Declaration stated, in the first count, that J. B. Fox, at Pernam-
buco, according to the usage of merchants, drew a bill of exchange,
dated the 23d of April, 1829, upon Edward Hancorne, requesting him,
sixty days after sight thereof, to pay Messrs. Turner, Brade, and Co.,
or order, £140 16s. 8d. value received, for Mr. Robert Lott ; that
afterwards the defendant, well knowing the premises, did falsely,
fraudulently, and deceitfully represent and pretend that he was duly
authorized by Hancorne to accept the said bill of exchange according
to the usage of merchants, on behalf and by the procuration of Han-
corne, to whom the same was so directed as aforesaid, and did then
and there falsely and fraudulently pretend to accept the same by the
procuration of Hancorne; that the said bill of exchange was indorsed
over, and by various indorsements came to the plaintiff, of which the
defendant had notice ; that the plaintiff, relying upon tlie said pre-
tended acceptance, and believing that the defendant had authority
from Hancorne, so to accept the bill on his behalf, and in considera-
tion thereof, and of the indorsement, and of the delivery of the bill to
him the plaintiff, received and took from the last indorsers the bill as
and for payment of the sum of money in the bill specified, for certain
goods and merchandises of the plaintiff sold to the indorsers; that
when the bill became due, it was presented to Hancorne for payment,
but that he, Hancorne, did not nor would pay the same, whereupon the
plaintiff brought an action against Hancorne as the supposed acceptor
thereof ; and that by reason of the premises, and the said false repre-
sentation and pretence of the defendant, the plaintiff not only lost the
sum of money in the bill of exchange mentioned, which has not yet
been paid, but also expended a large sum, to wit, £42 7s., in unsuccess-
fully suing Hancorne, and also paid £17 to him as his costs. The
second count, after stating the drawing of the bill according to the
custom of merchants, by Fox, as in the first count, alleged that the de-

1 Ace: Hall v. Crandall, 29 Cal. 567 (1866) ; Noyes v. Loring, 55 Me. 408 (1867);
Bartlett v. Tucker, 104 Mass. 336 (1870).

Contra: Dusenbury v. Ellis, 3 Johns. Cas. 70 (1802) ; but this last case is disap-
proved in White v. Madison, 26 N. Y. 117 (1862). — Eu.

SECT. II.] POLHILL V. WALTER. 497

fendaiit, well knowing the premises, did falsely and deceitfully represent
and pretend that he, the defendant, was duly authorized by llancorne
to accept the bill according to the said usage and custom of merchants,
on behalf and by the procuration of Hancorne, to whom the same was
directed, and did accept the same in writing under pretence of the pro-
curation aforesaid ; that by various indorsements the bill came to the
plaintilf ; that he, the plaintiff, relying on the said pretended procura-
tion and authority of llancorne, and in consideration thereof, and of
the said acceptance, received and took the bill as and for payment of a
sum of money in the bill specified, in respect of goods sold by the plain-
tiff. The count then stated the presentment of the bill to Hancorne and
his refusal to pay, and averred that it became and was the duty of the
defendant to pay the sum in the bill specified, as the acceptor thereof,
but that he had refused. There was a similar allegation of special
damage as in the first count. Plea, not guilty. At the trial, before
Lord Tenterden, C. J., at the London sittings after Hilar}- term, 1831,
it appeared in evidence that the defendant had formerly been in part-
nership with Hancorne, but was not so at the time of the present trans-
action. The latter, however, still kept a counting-house on the premises
where the defendant carried on business. The bill of exchange drawn
upon Hancorne was, in June, 1829, left for acceptance at that place,
and, afterwards, a banker's clerk, accompanied b}- a Mr. Armfield,
then a partner in the house of the payees, called for the bill. The
defendant stated that Hancorne was out of town, and would not return
for a week or ten days, and that it had better be presented again. This
the clerk refused, and said it would be protested. Armfield then repre-
sented to the defendant that expense would be incurred by the protest,
and assured him that it was all correct ; whereupon the defendant,
acting upon that assurance, accepted it per procuration of Mr. Han-
corne. After this acceptance, it was indorsed over by the payees. On
the return of Hancorne, he expressed his regret at the acceptance, and
refused to pay the bill. The plaintiff sued him, and, on the defendant
appearing and stating the above circumstances, was nonsuited. The
present action was brought to recover the amount of the bill, and the
costs incurred in that action, amounting in the whole to £196. The de-
fendant's counsel contended that as there was no fraudulent or deceitful
intention on the part of the defendant, he was not answerable. Lord
Tenterden was of that opinion, but left it to the jury to determine
whether there was such fraudulent intent or not ; and directed them to
find for the defendant if they thought there was no fraud, otherwise for
the plaintiff ; giving the plaintiff leave to enter a verdict for the sum of
£196 if the court should be of opinion that he was entitled thereto.
The jury found a verdict for the defendant. In the ensuing Easter
term Sir James Scarlett obtained a rule nisi, according to the leave
reserved, against which in the last term cause was shown by

Campbell and J^. Kelly.

Sir James Scarlett and Lloyd, contra.

498 POLHILL V. WALTER. [CHAP. III.

Lord Tenterden, C. J., now delivered the judgment of the
Court. ^ . . .

On the argument, two points were made by the plaintiff's counsel.
It was contended, in the first place, that although the defendant was
not guilt}' of any fraud or deceit, he might be made liable as acceptor
of the bill ; that the second count was applicable to that view of the
case ; and that, after rejecting the allegations of fraud and falsehood in
that count, it contained a sufficient statement of a cause of action
against him, as acceptor. But we are clearl}- of opinion that the
defendant cannot be made responsible in that character. It is enough
to sa}- that no one can be liable as acceptor but the person to whom
the bill is addressed, unless he be an acceptor for honor, which the
defendant certainly was not.

This distinguishes the present case from that of a pretended agent,
making a promissory note (referred to in Mr. Roscoe's Digest of the
Law of Bills of Exchange, note 9, p. 47), or purchasing goods in the
name of a supposed principal. And, indeed, it may well be doubted if
the defendant, by writing this acceptance, entered into an}' contract or
warranty at all, that he had authorit}' to do so ; and if he did, it would
be an insuperable objection to an action as on a contract b}' this plain-
tiff, that at all events there was no contract with, or warranty to, him.

It was in the next place contended that the allegation of falsehood
and fraud in the first count was supported b}- the evidence ; and that,
in order to maintain this species of action, it is not necessary to prove
that the false representation was made from a corrupt motive of gain
to the defendant, or a wicked motive of injury to the plaintiff: it was
said to be enough if a representation is made which the party making it
knows to be untrue, and which is intended by him, or which, from the
mode in which it is made, is calculated, to induce another to act on
the faith of it, in such a wa}' as that he may incur damage, and that
damage is actually incurred. A wilful falsehood of such a nature was
contended to be, in the legal sense of the word, a fraud ; and for this
position was cited the case of Foster v. Charles, 6 Bingh. 396, 7 Bingh.
105, which was twice under the consideration of the Court of Common
Pleas, and to which ma}' be added the recent case of Corbet v. Brown,
8 Bingh. 33. The principle of these cases appears to us to be well
founded, and to apply to the present.

It is true that there the representation was made immediately to the
plaintiff, and was intended by the defendant to induce the plaintiff to
do the act which caused him damage. Here, the representation is
made to all to whom the bill may be offered in the course of circula-
tion, and is, in fact, intended to be made to all, and the plaintiff is
one of those ; and the defendant must be taken to have intended, that
all such persons should give credit to the acceptance, and thereby act
upon the faith of that representation, because that, in the ordinary
course of business,, is its natural and necessarj- result.

^ The Chief Justice's statement of the case is omitted. — Ed.

3ECT. II.J SMOUT V. ILBERY. 499

If, then, the defendant, when he wrote the acceptance, and, thereby,
in substance, represented tliat he had authority from the drawee to
make it, knew that he liad no such authority (and upon the evidence
there can be no doul)t that he did), the representation was untrue to
his knowledge, and we think that an action will lie against him by the
plaintiff for the damage sustained in consequence.

If the defendant had had good reason to believe his representation
to be true, as, for instance, if he had acted upon a power of attorne}'
which he supposed to be genuine, but which was, in fact, a forgery,
he would have incurred no liability, for he would have made no state-
ment which he knew to be false : a case ver^' different from the
present, in which it is clear that he stated what he knew to be untrue,
though with no corrupt motive.

It is of the greatest importance in all transactions, that the truth
should be strictly adhered to. In the present case, the defendant no
doubt believed that the acceptance would be ratified, and the bill paid
when (hie, and if he had done no more than to make a statement of
that belief, according to the strict truth, by a memorandum appended
to the bill, he would have been blameless. But then the bill would
never have circulated as an accepted bill, and it was only in conse-
quence of the false statement of the defendant that he actually had
authorit}' to accept, that the bill gained its credit, and the plaintiff
sustained a loss. For these reasons we are of opinion that the rule
should be made absolute to enter a verdict for the plaintiff.

Mule absolute.

SMOUT V. ILBERY.

Exchequer. 1842.
[10 M. cj- W. 1.]

Debt for goods sold and delivered, and on an account stated.

Pleas, first, except as to £6 7s., parcel, &c., nunquam indebitatus;
secondly, except as to the said sum of £6 7.s., parcel, &c., payment;
thirdly, as to tlie sum of £6 Is., parcel, &c., payment into court of that
sum, and nunquam indebitatus ultra. The replication took issue on
the first plea, denied the payment alleged in the second, and accepted
the £6 7s. , in satisfaction as to so much of the debt demanded.

At the trial before Gurney, B., at the Middlesex Sittings in Michael-
mas Term, 1841, it appeared that the plaintiff was a butcher, and the
defendant the widow of James Ilbery, who left England for China in
May, 1839, and was lost in the outward voyage, on the 14th October,

1839. The news of his death arrived in England on the 13th of March,

1840. The plaintiff had supplied meat to the family before Mr. TIbery
sailed, and during his voyage, and the supply continued down to the

500 SMOUT V. ILBERY. [CHAF. III.

time of the news of his death, aud even afterwards. Upon tlie 14th
October, 1839, the day of Mr. llberj's death, the amount of the debt
was £52 13s. lid. Between that day and the arrival of the news of the
death, meat had been supplied to the amount of £19 Us. ; and after that,
the supply amounted to £6 7s.

This action was brought for these two sums (together) £25 16s. The
defendant paid £G 7s. into court, and relied on a payment of £20, as
discharging her from the plaintitf's claim for meat supplied after the
date of her husband's death; and the counsel for the defendant gave in
evidence the following receipt signed by the plaintiff, dated the 30th
March, 1840 : " Received of Mrs. Ilbery, £20." The plaintiff insisted
that the £20 had been paid generally on account, and must be applied
as a payment by the executors in part satisfaction of the debt of the
husband ; and called Mr. Dollman, the executor. From his evidence
it appeared, that Mr. Ilber}' had left the management of his affairs in
his hands, and whenever Mrs. Ilberv wanted money she had it from
him. Dollman and Mrs. Ilbery were, by Ilbery's will, appointed exe-
cutor and executrix ; but he alone proved the will, on the 21st March,
1840, power being reserved in the usual way for her to prove also. On
the 28th March, Mr. Dollman gave Mrs. Ilbery five or six cheques,
and among others, one for £20, payable to the plaintiff. This cheque
she paid to the plaintiff, and took his receipt as above mentioned.

At that time it was supposed that Ilbery's estate was solvent. It
turned out to be otherwise ; and Dollman, who was engaged with him
in the adventure to China, had become bankrupt.

The question left to the jury was, whether the £20 was paid on the
executorship account, or on the account of Mrs. Ilbery only, and in
discharge of that debt which (on both sides, as well as in the learned
Judge's opinion) was taken to have been due from her.

The jury found that it was paid on the executorship account, and
gave their verdict for the plaintiff for £19 9s., the price of the meat
supplied between the day of Mr. Ilbery's death, and the arrival of the
intelligence of it. A rule having been obtained in Michaelmas Term
to show cause why that verdict should not be set aside, and a new trial
had, on the ground that the defendant was not hable for the meat sup-
plied after, but before she had any knowledge of, her husband's death.

Hindmarch (Jervis with him) showed cause.

Erie, in support of the rule.

The judgment of the court was now delivered by

Alderson, B} The point, how far an agent is personally liable
who, having in fact no authority, professes to bind his principal, has
on various occasions been discussed. There is no doubt that in the
case of a fraudulent misrepresentation of his authority, with an inten-
tion to deceive, the agent would be personally responsible. But inde-
pendently of this, which is perfectly free from doubt, there seem to be

1 After stating the case. — Ed

SECT. II.] SMOUT V. ILBERY. 501

still two other classes of cases, in which an agent who without actual
auti)oiity makes a contract in the name of his piincipal, is personally
liable, even where no proof of such fraudulent intention can be given.
First, where he has no authorit}', and knows it, but nevertheless makes
the contract as having such authority. In that case, on the plainest
principles of justice, he is liable. For he induces the other party to
enter into the contract on what amounts to a misrepresentation of a
fact peculiarly within his own knowledge ; and it is but just, that he
who does so should be considered as holding himself out as one having
competent authority to contract, and as guaranteeing the consequences
arising from any want of such authority. But there is a third class, in
which the courts have held, that where a party making the contract as
agent hondficle believes that such authority is vested in him, but has in
fact no such authority, he is still personally liable. In these cases, it
is true, the agent is not actuated by any fraudulent motives ; nor has
he made any statement which he knows to be untrue. But still his
liability depends on the same principles as before. It is a wrong, differ-
ing only in degree, but not in its essence, from the former case, to state
as true what the individual making such statement does not know to be
true, even though he does not know it to be false, but believes, without
sufficient grounds, that the statement will ultimately turn out to be
correct. And if that wrong produces injur}- to a third person, who is
wholly ignorant of the grounds on which such belief of the supposed
agent is founded, and who has relied on the correctness of his assertion,
it is equally just that he who makes such assertion should be personally
liable for its consequences.

On examination of the authorities, we are satisfied that all the cases
in which the agent has been held personally responsible, will be found
to arrange themselves under one or other of these three classes. In all
of them it will be found, that he has either been guilt}' of some fraud,
has made some statement which he knew to be false, or has stated as
true what he did not know to be true, omitting at the same time to
give such information to the other contracting party, as would enable
him equall}' with himself to judge as to the authoi'it}' under which he
proposed to act.

Of the fii'st, it is not necessary to cite any instance. Polhill t;. Walter,
3 B. «& Ad. 114, is an instance of the second ; and the cases where the
agent never had any authority to contract at all, but believed that he
had, as when he acted on a forged warrant of attorney, which he
thought to be genuine, and the like, are instances of the third class.
To these ma}- be added those cited by Mr. Justice Story, in his book
on Agency, p. 226, note 3. The present case seems to us to be dis-
tinguishable from all these authorities. Here the agent had in fact full
authority originally to contract, and did contract in the name of the
principal. There is no ground for saying, that in representing her
authority as continuing, she did any wrong whatever. There was no
mala fides on her part ; no want of due diligence in acquiring knowl-

502 SMOUT V. ILBERY. [CHAP. IIL

edge of the revocation ; no omission to state any fact within her knowl-
edge relating to it, and the revocation itself was b}- the act of God,
The continuance of the life of the principal was, under these circum-
stances, a fact equally within the knowledge of both contracting parties.
If, then, the true principle derivable from the cases is, that there must
be some wrong or omission of right on the part of the agent, in order
to make him personally liable on a contract made in the name of his
principal, it will follow that the agent is not responsible in such a case
as the present. And to this conclusion we have come. We were, in
the course of the argument, pressed with the difficulty, that if the de-
fendant be not personally liable, there is no one liable on this contract
at all ; for Blades v. Free, 9 B. & Cr. 167 ; 4 Man. & Ry. 282, has de-
cided, that in such a case the executors of the husband are not liable.
This may be so ; but we do not think that if it be so, it affords to us a
sufficient ground for holding the defendant liable. In the ordinary case
of a wife who makes a contract in her husband's lifetime, for which the
husband is not liable, the same consequence follows. In that case, as
here, no one is liable upon the contract so made.

Our judgment, on the present occasion, is founded on general prin-
ciples applicable to all agents ; but we think it right also to advert to
the circumstance, that this is the case of a married woman, whose
situation as a contracting party is of a peculiar nature. A person who
contracts with an ordinarj' agent, contracts with one capable of con-
tracting in his own name ; but he who contracts with a married woman
knows that she is in general incapable of making anj- contract by which
she is personally bound. The contract, therefore, made with the hus-
band by her instrumentality-, may be considered as equivalent to one
made % the husband exclusively of the agent. Now, if a contract
were made on the terms, that the agent, having a determinable author-
ity, bound his principal, but expressly stipulated that he should not be
personally* liable himself, it seems quite reasonable that, in the absence
of all mala fides on the part of the agent, no responsibility should rest
upon him ; and, as it appears to us, a married woman, situated as the
defendant was in this case, may fairl}' be considered as an agent so
stipulating for herself; and on this limited ground, therefore, we think
she would not be liable under such circumstances as these.

For these reasons, we are of opinion that the rule for a new trial
must be absolute ; but as the point was not taken at Nisi Prius, we
think the costs should abide the event of the new trial.

Hule absolute accordingly}

» See RandeU v. Trimen, 18 C. B. 786, 793 (1856). —Ed.

SECT. II.] JENKINS V. HUTCHINSON. 503

JENKINS V. HUTCHINSON.
Queen's Bench. 1849.

[13 Q. D. 744.]

Assumpsit. Declaration in the ordinary form on a memorandum of
charter-part}', not under seal, averred to be made by and between plain-
tiff and defendant, b}' which it was agreed that a ship called, &c.,
should sail to Constantinople. Breach, that the ship did not sail.
Plea (amongst others), iVb/i assumpsit.

On the trial, before Erle, J., at the Durham Summer Assizes, 1848,
a memorandum of charter-party not under seal was produced. It com-
menced : " It is this day mutually agreed between Mr. P. A. Barnes, of
Jarrow, owner of the good ship," «&;c., ''and Mr. Jenkins, merchant,
that," &c. The instrument was one of the ordinary printed forms ;
and the blanks had been filled up by the defendant. It was signed by
the plaintiff, and was also signed by the defendant, in the following
form : " R. A. Hutchinson />ro P. A. Barnes." This signature was
attested in the following form : " Witness to the signature of P. A.
Barnes /)r Ralph Hutchinson, T. Wilson." It appeared in evidence
that Barnes had given the defendant no authority' to make this con-
tract, but that the defendant, believing that he wanted such a charter-
party, made it for him, and that Barnes, on its being communicated to
him, refused to adopt it, having himself, without defendant's knowl-
edge, already chartered his vessel. The plaintiff's counsel contended
that under these circumstances the defendant was liable, and might be
sued on the contract as principal. Verdict for the plaintiff, leave being
reserved to move for a nonsuit. JfaHin, in Michaelmas Term, 1848,
obtained a rule nisi accordingly.

Watso7i, Overend^ and Hugh Hill, now showed cause.

3Iartin and Seymour., contra.

Lord Denman, C. J. , delivered the judgment of the Court. . . .

It is not pretended that the defendant had any interest as principal :
he signed as agent, intending to bind a principal, and in no other
character. That he may lie liable to the plaintiff in another form of
action for an}' damage sustained b\' his representing himself to be agent
when he was not, is ver}' possible : but the question is here whether he
can be sued on the charter-partv itself, as a part}' to it. No reported
case has decided that a party so circumstanced can be sued on the
instrument itself. Mr. Justice Story, in his book on the Law of
Agency, p. 32'2, 3d ed., in a note, states that the decisions in the
American courts are conflicting on this point, and that in England it is
held that the suit must be by a special action on the case ; citing
Polhill V. Walter, 3 B. & Ad. 114. That case does not perhaps estab-
lish the broad proposition, for the contract was a bill of exchange, an
instrument differing in many respects from ordinary contracts ; but

504 LEWIS V. NICHOLSON. [CHAP. IIL

even in the case of a bill of exchange the Court of Exchequer, in
Wilson V. Barthrop, 2 M. & W. 863, did not at once repudiate the
possibility that an agent might be so liable : the case, however, went
off on the ground that he might have had authority to bind the princi-
pal, and did not appear to have acted mala fide.

In the absence of any direct authority, we think that a part}' who
executes an instrument in the name of another, whose name he puts to
the instrument and adds his own name only as agent for that other,
cannot be treated as a part}' to that instrument and be sued upon it,
unless it be shown that he was the real principal : and that this rule
must be made absolute accordingly.

Mule absolute for a nonsuit.

LEWIS V. NICHOLSON.
Queen's Bench. 1852.

[18 Q. B. 503.]

Declaration stated that Messrs. Arliss «fe Tucker had assigned by
bill of sale to plaintiff by wa}' of security for £268 Is. certain goods ;
and that whilst the debt was unsatisfied Arliss & Tucker became bank-
rupts. That the goods were seized by their assignees, who were about
to sell them ; and plaintiff gave notice that he claimed the goods, and
would forbid the sale. That, in consideration plaintiff would consent
to the sale, defendants promised that the net proceeds of the effects
included in the bill of sale should be paid to plaintiff to the extent of
the balance then due to him. Averments of consent by plaintiff, and
that the sale took place. Breach, that the net proceeds were not paid
to plaintiff. There were also counts for money had and received, and
on accounts stated.

Plea: Non assumpserunt. Issue thereon.

On the trial, before Lord Campbell, C. J., at Guildhall, at the sittings
after last Hilary Term, the material facts appeared to be that the de-
fendants were solicitors to the assignees of Messrs. Arliss & Tucker,
who had become bankrupts. The trade assignee had ordered a sale by
auction of goods seized as the property of the bankrupts, when the
plaintiff's solicitor gave notice that the plaintiff claimed part of the
goods under a bill of sale by waj' of mortgage. The following letters
were then proved.

Defendants to plaintiff's solicitor, 26th August, 1851.

" Re Arliss and Tucker. Sir : In consideration of Mr. James Henry
Lewis, for whom you act, consenting to the sale, by Messrs. Lewis &
Son, of the bankrupts' printing materials and other effects (part
whereof is included in a bill of sale to Mr. J. H. Lewis by way of

SECT. II.] LEWIS V, NICHOLSON. 505

mortgage, dated the 16th of March, 1850), we hereb}', on behalf of the
assignees, consent that the net proceeds of the effects included in the
said bill of sale shall be paid over to you or your client to the extent of
the balance now remaining due under the bill of sale for principal and
interest. We shall feel obliged by your sending us immediately a con-
sent to the sale accordingl}-. Yours faithfully, Nicholson & Parker."
Plaintiff's solicitor to defendants, 27th August, 18.51.
" He Arliss and Tucker. Dear Sirs : In compliance with the under-
taking given b}' you herein, and contained in your letter of the 26th
inst., I hereby, on the part of Mr. James Henry Lewis, consent to the
sale by Messrs. Lewis & Son of the bankrupts' printing materials and
other effects (part of which is included in the bill of sale to Mr. J. H.
Lewis by way of mortgage dated the 16th of March, 1850). I am,
gentlemen, your obedient servant, J. H. F. Lewis, solicitor to the said
J. H. Lewis."

The sale took place accordingly. The trade assignee of the bank-
rupts had authorized the writing of the letter of 26th August, 1851.
The official assignee was absent at the time, and did not know of the
writing of that letter till afterwards ; he was called as a witness for the
plaintiff, and proved that he never ratified the contract in that letter.

Some letters, written after the dispute had arisen, were put in
evidence, which, as plaintiff contended, showed that defendants con-
sidered themselves as personall}- bound by the undertaking of 26th
August.

The Lord Chief Justice directed a nonsuit, with leave to move to
enter a verdict if the Court should be of opinion that, on the documents
and evidence, the plaintiff was entitled to recover.

/Shee, Serjt. , in the ensuing term, obtained a rule JVisi accordingly.
Brarnvcell and 'Willes now showed cause.
Shee^ Serjt., and llacnaviara, in support of the rule.
Lord Campbell, C. J.^ . . . Then the other point is to be consid-
ered. I think the facts raise it, as the trade assigneee had no authority'
to make the official assignee personally liable on such a collateral con-
tract. He might give assent, binding on l)oth, to the disposal of the
goods or mone}- ; but this goes much beyond such authority. So, the
principals not being bound, the question arises whether the defendants
are liable in this form of action. In the note to Thomas v. Hewes, 2
C. & M. 519, 530, note (e), s. c. 4 Tyr. 335, 338, it is stated to have
been said b^- Bayle}', B., that, " where an agent makes a contract in the
name of his principal, and it turns out that the principal is not liable
from the want of authorit}' in the agent to make such contract, the agent
is personally liable on the contract." That is a high authority ; but
I must dissent from it. It is clear that it cannot apply where the con-
tract is peculiarl}' personal ; otherwise this absurdity would follow, that,
if A., professing to have but not having authority from B., made a

^ After discussing the construction of the contract. — Ed.

506 COLLEN V. WRIGHT. [cHAP. III.

contract that B. should marry C, C. might sue A. for breach of prom-
ise of marriage, even though they were of the same sex. Perhaps this
distinction would be enough to su[)port tlie decision in Jenkins v.
Hutchinson, 13 Q. B. 744, as there the contract might be said to be
peculiarl}' made with the owner of the ship, wliich the defendant was
not; but I go further. I think in no case where it appears that a man
did not intend to bind himself, but only to make a contract for a prin-
cipal, can he be sued as principal, merel}- because there was no au-
thorit}'. He is liable, if there was an}- fraud, in an action for deceit,
and, in m}' opinion, as at present advised, on an implied contract that
he had authority, whether there was fraud or not. In either way he
ma}' be made liable for the damages occasioned by the absence of
authority. But I think that to say he is liable as principal is to make
a contract, not to construe it. I think, tlierefore, that these defendants
were liable, but not in this action ; and that the nonsuit, therefore,
was right.^ Hide discharged.

COLLEN V. WRIGHT et al.
Exchequer Chamber. 1857.

[8 E. 4- B. 647.]

Appeal from the decision of the Court of Queen's Bench on a case
stated without pleadings. The case will be found stated in full in the
report below. CoUen v. Wright.'^ In substance it stated that the tes-
tator Wright was land agent for a gentleman named Gardner, and, as
such, made an agreement with the plaintiff for the lease to him for 12^
years of a farm of Gardner's. A formal agreement between landlord
and lessee was drawn up and signed by the testator in the following
form: "Robert Wright, agent to William Dunn Gardner, Esquire, les-
sor." It was also signed by plaintiff. The plaintiff entered on the
farm on the strength of this agreement. Mr. Gardner refused to
execute any such lease, alleging accurately, as it proved, that he had
conferred on the testator no authority to agree for a lease for so long a
term. The plaintiff had commenced a suit in Chancery against Gardner
for a specific performance. On discovering the ground of defence, his
solicitors sent to Wright a formal notice that, unless they received
from Wright notice to the contrary, the plaintiff would proceed with
the suit at Wright's expense ; and in the event of his bill being dis-
missed on the ground of the absence of authority, would commence an
action to recover the costs and other damages by reason of Wright's
want of authority. Wright's solicitor sent an answer, dated 11th

1 Concurring opinions were delivered by Wightman, Erle, and Cromptok, JJ.
— Ed.

2 7 E. & B. 301. See Simons v. Patchett, 7 E. & B. 568. — Rep.

6ECT. II.] COLLEN V. WEIGHT. 507

April, 1855, denying Wright's liability to any action, but not contain-
ing any admission tliat Wriglit bad not bad full autborit}'. The suit
was proceeded with, and the bill dismissed with costs, on the ground
that Wright had no authority from Gardner to sign the agreement.
The case in the Queen's Bench was stated after Wright's death, and
submitted two questions to the Court : 1. Whether the plaintiff is
entitled to maintain an action against the defendants, as executrix and
executors of the said Robert Wright, to recover damages ; 2. Whether,
if so, the whole of the damages sustained by the plaintiff, including
his costs of the said suit in Chancery can be recovered ; or, if some of
such damages and costs onl}' can be recovered, which of them, and to
what extent, without regard, however, to the exact amount. The case
contained provisions for a judgment, subject to an arbitration to ascer-
tain the amount of damages according to the principles laid down by
the Court. The Court of Queen's Bench ordered that judgment should
be " entered for the plaintiff for such amount of damages as shall in-
clude monc}' laid out and costs of Chancery suit." The defendants
appealed.

Phipson^ for the appellants.

G'Malley^ for the respondent.

WiLLEs, J., delivered the following judgment, in which Pollock,
C. B., Williams, J., and Bramwell, Watsox, and Channell, BB.,
concurred.

It appears to me that the judgment of the Court of Queen's Bench
ought in all respects to be affirmed. I am of opinion that a person,
who induces another to contract with him as the agent of a third party
b}' an unqualified assertion of his being authorized to act as such agent,
is answerable to the person who so contracts for an}- damages which he
may sustain b}- reason of the assertion of authority' being untrue. This
is not the case of a bare misstatement by a person not bound b}- any
duty to give information. The fact that the professed agent honestl}'
thinks that he has authorit}' affects the moral character of his act ; but
his moral innocence, so far as the person whom he has induced to con-
tract is concerned, in no way aids such person or alleviates the incon-
venience and damage which he sustains. The obligation arising in
such a case is well expressed b}' saying that a person, professing to
contract as agent for another, impliedly, if not expressly, undertakes
to or promises the person who enters into such contract, upon the faith
of the professed agent being duh* authorized, that the authority which
he professes to have does in point of fact exist. The fact of entering
into the transaction with the professed agent, as such, is good con-
sideration for the promise. Indeed the contract would be binding upon
the person dealing with the professed agent if the alleged principal
•were to ratify the act of the latter. This was, in effect, the view taken
by the Court of Queen's Bench, and to which I adhere. With respect
to the amount of damages, I retain the opinion thrown out in the
course of the argument, that all the expenses sought to be recovered

508 COLLEN V. WRIGHT. [CIIAI'. III.

were occasioned bj- the assertion of authority made at the time of the
contract being continued and persisted in by the defendant's testator,
and bujiajide acted upon by the plaintiff. That assertion was never
withdrawn, not even in the letter of 11th April, 1855, in answer to the
plaintiff's notice to the defendant's testator, long after the proceedings
in Chancery had commenced and whilst they were in full progress.
I am therefore of opinion that the judgment of the Queen's Bench was
right, and that it ought to be affirmed.

CocKBURN, C. J. I regret most unfeiguedly to find myself differing
in this case from so many of my learned brothers. ... I believe I
am justified in saying that this doctrine is altogether a novel one. . . .
In the learned and elaborate works which treat of the law relating to
agencj', . . . not even a hint is to be found of any implied contract on
the part of the agent as to the existence of the authority on which he
professes to act.^ . . . Nor is it to be wondered at ; for, on looking to
the reported decisions of our own and of the American courts, it will
be found that at the time these learned authors wrote no such doctrine
had ever been broached, but the remedy- against a part}- contracting on
behalf of another without authority' was assumed to be either b}- an
action on the case for the false representation, or bj' an action against
him as principal on the original contract. The doctrine that a person
professing to act as agent without sufficient authorit}- might be made
responsible as principal was only subverted at a comparatively recent
period. 2 . . . The case of Polhill v. Walter, 3 B. & Ad. 114, . . .
seems first to have given rise to a contrar}' impression, although that
case turned mainl}' on the peculiar character of a bill of exchange as
incapable of being accepted by an}' one but the drawee except for
honor of the latter. But the more recent case of Jenkins v. Hutchin-
son, 13 Q. B. 744, laid down the position broad!}' that an action ex
contractu could not be maintained against the professed agent as prin-
cipal : and the same doctrine was full}' confirmed and acted upon iu
the succeeding case of Lewis v. Nicholson, 18 Q. B. 503. In the
mean time, the liability of a professed agent for the unwarranted asser-
tion of authority in an action on the case underwent further considera-
tion ; and the doctrine of some writers, that any misrepresentation
whereby another was induced to do, or omit to do, an act from which
injury resulted, would render the party making it liable, underwent
material modification, the modern decisions having established that
such misrepresentation will not afford a ground of action where made
in good faith and without knowledge that it was untrue. The effect of
these doctrines being to leave a person who made a contract with
another as agent without a remedy where the professed agent had acted
ynder a mistaken impression as to his authority, it occurred to the

1 Citing Story on Agency, § 264, and note; and 2 Smith's L. Cas. (4th ed.) 297.
— Ed.

2 Citing Paley on Agency, c. 6, sec. 1, p. 386 (3d ed.) ; Story on Agency, § 264;
Jones V. Downman, 4 Q. B. 235 ; Smout v. Ilbery, ante, p. 499. — Ed.

SECT. II.] KROEGER V. PITCAIRN. 509

judges of the Court of Queen's Bench who decided, in the case of
Lewis V. Nicholson, 18 Q. B. 503, that an action would not lie against
the agent as principal, to suggest that, possii)ly, the agent might under
such circumstances, be held liable on an implied contract that he had
authority to contract in the name of the principal. And the opinion
thus incidentally thrown out in that case has been acted upon in this.
It was of course impossible, so long as the doctrine prevailed that the
professed agent could be sued as principal, that he could be held to be
liable on this implied contract. It would have been obviously incon-
sistent to say that upon one and the same contract a man could at the
same time be liable upon an express and also upon an implied promise.
To my mind it by no means follows that, because that which was
believed to be the remedy in law turns out upon further consideration
not to be so, we are therefore justified in resorting to the fiction of an
implied contract hitherto unknown to our law. ... I do not think we
are justified in introducing such a remedy by the mere fiat of a judicial
decree. I do not stop to discuss the expediency or policy of the pro-
posed rule. Otherwise I think it might be shown that there are two
sides even to this part of the case. . I doubt whether there is any
sufficient ground why erroneous representation, in the absence of false-
hood or fraud, should create a greater responsibility in the case of a
contract than in the case of any other transaction, especially as the
other contracting party might always protect himself by insisting on
communicating with the alleged principal, or by requiring a warranty
of authority from the agent. . . . Judgment affirmed}

KROEGER V. PITCAIRN.
Supreme Court of Pennsylvania. 1882.

[101 Pa. 311.]

Case, by W. C. Kroeger against Albert Pitcairn, to recover the
amount of the loss sustained b}- the plaintiff in consequence of certain
acts and representations made by defendant.

On the trial, before Kikkpatrick, J., the following facts appeared:
On April 4th, 1874, The Birmingham Fire Insurance Company issued
a polic}' of insurance to William C. Kroeger, the plaintiff, "on his
stock of merchandise and fixtures contained in the two-storj- frame

1 Ace. : Baltzen v. Nicolay, 53 N. Y. 467 (1873) ; In re National Coffee Palace Co., 24
Ch. D. 367 (C. A., 4883).

See Jefts v. York, 10 Cush. 392, 395-396 (1852) ; Beattie v. Lord Ebury, L. R.
7 Ch. 777, 800 (1872), s. c. L. R. 7 II. L. 102 (1874); May v. Western Union Tele-
graph Co., 112 Mass. 90, 94-95 (1873) ; Weeks v. Propert, L. R. 8 C. P. 427, 437-439
(1873) ; Trust Company v. Floyd, 47 Ohio St. 525 (1890). —Ed.

510 KROEGER V. PITCAIKN. [CHAP. IIL

store-room and cellar, and in frame addition attached, situated at Enon
Coal Company's works, about two miles west of Enon, &c."

One of the printed conditions of the policy was in these words j
"Or if the assured shall keep or have in any place or premises where
this polic3' may apply, petroleum, naphtha, benzine, benzole, gasoline,
benzine varnish, or an^' product in whole or in part of either ; or gun-
powder, fireworks, nitro glycerine, phosphorus, saltpetre, nitrate of
soda, or keep, have, or use camphene, spirit gas, or any burning fluid
or chemical oils, without written permission in this policj', then and in
every such case this policy' shall be void."

In December, 1874, the premises so insured were totally destroyed
by an accidental fire. Due notice was given the insurance compan}',
and preliminary proofs furnished, but the company refused to pay. An
action was then brought on the policy, and a judgment recovered to
the amount of twenty-one hundred dollars. That judgment this court
reversed. It had appeared on the trial that a barrel of carbon oil had
been kept on the premises, and this was held to be an avoidance of the
policy. Birmingham Fire Ins. Co. v. Kroeger, 2 Norris, 64.

Albert Pitcairn, the defendant, was the insurance company's agent
who procured the issue of the policy'. He solicited Kroeger to allow
him to effect the insurance ; went upon the premises, examined them,
furnished the description of them, and had the polic}' underwritten,
bringing it with his own hand to Kroeger, from whom he collected the
premium. What took place at that time was thus testified to b}" Kroeger :
" He procured the policy and brought it to me ; I took the policy and
read it over, and in reading it over I happened to come across this fine
print and noticed about these articles that should be mentioned in the
policy, — such as petroleum, and product of petroleum, and gasoline,
and other things, I don't know what thej' call them, all strange names
to me, and I told him about petroleum ; says I, " Albert, you know
there is a little petroleum kept there for the supplies to the mines ; " I
had to have that there all the time, as well as company supplies. He
said, "Yes, I know that." Says I, "It says here it should be men-
tioned in the policy ; " and he says, " That is never taken notice of, only
where it is kept in large quantity, say several hundred barrels ; in that
case, where it is wholesale, it should be mentioned, but so long as it is
not kept more than one barrel in the store at a time, it is considered as
general merchandise and it is never taken notice of in any other way."

Cross-examination. "The outcome was as I say; I objected to
the poUcy on account of the way it was in the fine print ; it seemed to
me it was not proper, and I spoke to Mr. Pitcairn about that and he said
that the policy was proper ; that tlie policies were all made out in that
wa}' ; that carbon oil, as long as it was not kept more than one barrel
in the store, was considered as general merchandise and not mentioned
in the polic}', but where it was kept in large quantity, a hundred barrels
or so, then it must be so mentioned, and exception made of it."

It was conceded that Pitcairn, all through, acted as the agent of the

SECT. II.] KROEGER V. PITCAIRN. 511

insurance company. He admitted that he had no authority from his
principal to represent to Kroeger that the printed condition as to petro-
leum was not binding except wliere oil was kept wliolesale.

Plaintiff requested the court to charge that if the jury believed from
the evidence that the defendant made to plaintiff the representa-
tions testified to by the latter and that the latter took said policy upon
the faith thereof, and tliat the defendant had no authority from the
Birmingham Fire Insurance Company to make such representations,
that tlie premises insured were subsequently destroyed by fire, and that
because of the terms of the policy in suit relating to petroleum the
plaintiff failed in a recovery against said company, because of having a
barrel of carbon oil on the premises, then he is entitled to recover
against the defendant in this action the amount of the policy, with
interest, fiom time of payment provided in said policj'.

Affirmed pro forma.

Defendant then presented the following points.

1st. To sustain this action, the alleged misrepresentations must not
only have been false, but it must be shown that defendant knew them
to be false, and made them with intent to defraud the plaintiff.

Refused pro forma.

2d. That the alleged representation was the mere opinion of defend-
ant as to the legal effect of the condition in the policy of insurance,
and the conditions of the policy being open to tlie observation of plain-
tiff, plaintiff was bound to know the legal effect thereof, and cannot,
for such opinion of defendant, recover in this action.

Refused ^yro forma.

3d. That if, when defendant, as agent of the Birmingham Insurance
Compan}', delivered the policy to plaintiff, he made the alleged repre-
sentation as to the keeping of carbon oil in the insured premises, and
made them in accordance with the existing custom of that and other
insurance companies in insuring stocks of merchandise in country
stores, then plaintiff cannot recover.

Refused pro forma.

The court instructed the jury to find for the plaintiff, reserving the
points presented as above. Verdict accordingly. Subsequently the
court entered judgment for the defendant on the points reserved non
obstante veredicto. Thereupon the plaintiff took this writ, assigning
for error the action of the court in entering judgment for defendant
no7i obstante veredicto.

Dalzell (with whom was Hampton)., for the plaintiff in error.

Schoyer (with whom was McGill), for the defendant in error.

Sterrett, J. The subject of complaint, in both specifications of
error, is the entr}- of judgment for defendant noti obstante veredicto.
It is contended that upon the facts established by the verdict, judgment
should have been entered thereon in favor of plaintiff. The jury were
instructed to return a verdict for the amount claimed by him. if they
were satisfied the allegations of fact contained in the point pre-

512 KKOEGER V. PITCAIRN. [CHAP. III.

sented by liim were true. In view of tliis, the finding in his favor
necessarily implies a verification of the several matters specified in
plaintift-s point, and hence it must now be regarded as containing a
truthful recital of the circumstances connected with the delivery of the
policy and payment of the premium.

The transaction, as therein detailed, clearly amounted to a mutual
understanding or agreement between the parties that the stock of
merchandise, mentioned in the policy, should include one barrel of
carbon oil ; in other words, that the plaintiff should have the privilege
of keeping that quantity of oil in connection with and as a part of the
stock insured, without thereby invalidating his polic}'. It is impossible
to regard the transaction in anj- other light. The jurj' found that
plaintiff " took the policy upon the faith " of the representations made
by defendant. These representations were not merely expressions of
opinion as to the meaning of the policy. On the contrarj-, the defend-
ant, acting as its agent and assuming authority to speak for the insur-
ance company, asserted without an}- qualification that when carbon oil
was kept as plaintiff was in the habit of keeping it — a single barrel at
a time — it was unnecessar}- to mention the fact in the policy, or other-
wise obtain the consent of the company- ; that no notice is ever taken
of it unless "it is kept in large quantity-, — say several hundred barrels.
In that case, when it is wholesale, it should be mentioned ; but, as long
as it is kept, not more than a barrel in the store at a time, it is consid-
ered as general merchandise and is not taken notice of in any other
waj'." Such was the language employed by defendant, evidently for
the purpose of dispelling an}' doubt that existed in the mind of the
plaintiflT and inducing him to accept the polic}' and pa}' the premium ;
and, to that end at least, it was successful. What was said and done
by defendant, in the course of the transaction, amounted to more than
a positive assurance that the accepted meaning of the policy was as
represented by him. In effect, if not in substance, his declarations
were tantamount to a proposition, on behalf of the company he assumed
to represent, that if the insurance was effected, it should be with the
understanding that a barrel of carbon oil was included in and formed
part of the insured stock of merchandise, without being specially
mentioned in the policy. The plaintiflf" doubtless so regarded his
declarations, and relying thereon, as the jury has found, accepted the
policy on the terms proposed, and thus concluded, as he believed, a
valid contract of insurance, authorizing him to keep in stock, as he had
theretofore done, a small quantit}- of carbon oil. It was not until after
the property was destroyed that he was undeceived. He then discov-
ered that, in consequence of defendant having exceeded his authority,
he was without remedy against the company. Has he any remedy
against the defendant, by whose unauthorized act he was placed in this
false position? We think he has. If the president or anyone duly
authorized to represent the company had acted as defendant did, there
could be no doubt as to its liability. Why should not the defendant

BECT. II.] KKOEGER V. PITCAIRN. 513

be personally responsible, in like manner, for the consequences, if h«,
assuming to act for the company, overstepped the boundary of his
authority and thereby misled the plaintiff to his injur}-, whether inten-
tionally or not? The only difference is that in the latter the authority
is self-assumed while in the former it is actual ; liut that cannot be
urged as a sufficient reason why plaintiff, who is blameless in both
cases, should bear the loss in one and not in the other. As a general
rule, " whenever a party undertakes to do an}' act as the agent of
another, if he does not possess any authority' from the principal there-
for, or if he exceeds the authority delegated to him, he will be person-
ally liaV)le to the person with whom he is dealing for or on account of
his principal." Story on Agency, 264. The same principle is recog-
nized in Evans on Agenc}', *301 ; Whart. on Agency, 524; 2 Smith's
Lead. Cases, 380, note ; 1 Pars, on Cont. 67 ; and in numerous adjudi-
cated cases, among which are Hampton v. Speckenagel, 9 S. «S: R. 212,
222 ; Layng v. Stewart, 1 W. *& S. 222, 226 ; McConn v. Lady, 10
W. N. C. 493; Jefts v. York, 10 Cnsh. 392; Baltzen v. Nicolay, 53
N. Y. 467. In the latter case, it is said, the reason wh}' an agent is
liable in damages to the person with whom he contracts, when he
exceeds his authority, is that the party dealing with him is deprived of
any remed}- upon the contract against the principal. The contract,
though in form that of the principal, is- not his in fact, and it is but
just that the loss, occasioned by there being no A-alid contract with him,
should be borne by the agent who contracted for him without authority.
In Layng v. Stewart, siq^ra, Mr. Justice Huston says: "It is not
worth while to be learned on very plain matters. The cases cited show
that if an agent goes beyond his authority and employs a person, his
principal is not bound, and in such case the agent is bound." The
plaintiff in error, in McConn v. Lad\', supra, made a contract, believ-
ing he had authorit}' to do so, and not intending to bind himself per-
sonall}-. The jur}* found he had no authority- to make the contract as
agent, and this court, in affirming the judgment, said: "It was a
question of fact submitted to the jury, whether the plaintiff in error
had authority from the School Board to make the contract as their
agent. They found he had not. He was personally liable whether he
made the contract in his own name or in the name of his alleged prin-
cipal. It is a mistake to suppose that the only remed}' was an action
against him for the wrong. The party can elect to treat the agent as a
principal in the contract."

The cases in which agents have been adjudged liable personally have
sometimes been classified as follows, viz. : 1st. "Where the agent makes
a false representation of his authority' with intent to deceive. 2d.
Where, with knowledge of his want of authority, but without intending
any fraud, he assumes to act as though he were fully authorized ; and,
3d. Where he undertakes to act, bona fide believing he has authority,
but in fact has none, as in the case of an agent acting under a forged
power of attorney. As to cases fairly brought within either of the

514 PATTERSON V. LIPPINCOTT. [CHAP. IIL

first two classes there cannot be anj* doubt as to the personal liability
of the self-constituted agent ; and his liabilit}' may be enforced either
b}' an action on the case for deceit, or b}- electing to treat him as prin-
cipal. While the liabilit}- of agents, in cases belonging to the third
class, has sometimes been doubted, the weight of authority appears
to be that they are also liable. In Story on Agenc}', the learned author
recognizing the undoubted liability of those belonging to the first two
classes says, "Another case may be put which may seem to admit of
some doubt, and that is, where the part3' undertakes to act as an agent
for the principal, bona fide believing he has due authority, and therefore
acts under an innocent mistake. In this last case, however, the agent
is held b}' law to be equallj' as responsible as he is in the two former
cases, although he is guilty of no intentional fraud or moral turpitude.
This whole doctrine proceeds upon a plain principle of justice ; for
ever^' person, so acting for another, by a natural if not a necessar}'
implication, holds himself out as having competent authority to do the
act ; and he thereby- drawls the other part}- into a reciprocal engage-
ment. If he has no such authority, and acts bonafide^ still he does a
wrong to the other party ; and if that wrong produces injury to the
latter, owing to his confidence in the truth of an express or implied
assertion of authority by the agent, it is perfectly' just that he who
makes such assertion should be personall}' responsible for the conse-
quences, rather than that the injury should be borne hy the other party
who has been misled by it." Story on Agency, 264. This principle is
sustained by the authorities there cited, among which is Smout v.
Ilbery, 10 Mees. & Wels. 1,9.

"Without pursuing the subject further, we are of opinion that, upon
the facts established by the verdict, judgment should have been entered
for the plaintiff, on the question of law reserved.

Meversed,

PATTERSON v. LIPPINCOTT.

Supreme Court of New Jersey. 1885.
[47 N. J. L. 457.]

On certiorari to the Court of Common Pleas of Atlantic County.

For the prosecutor, J. J. Crandall.

For the defendant, Slape c0 Stephany.

ScuDDER, J. An action of debt was brought in the court for the
trial of small causes by Jacob M. Patterson against Barclay Lippincott,
to recover the balance, S75, claimed under a contract in writing for the
sale of the exclusive right to use, manufacture, and sell the plaintiff's
patent " air-heating attachment," in Atlantic county, New Jersey.

SECT. II.] PATTERSON V. LIPPINCOTT. 515

The writing was signed "Geo. P. Lippincott, per Barclay Lippincott,"
on the part of the purchaser. The state of demand avers that b}'
virtue of this agreement the plaintiff did in due form convey said patent
riglit to said George P. Lippincott, that said George and Barclay, on
request, have refused to pay said balance, and that, since payment be-
came due, the plaintifT has found out and charges that said George is
under the age of twenty-one years. He further avers that he never had
any contract or negotiations with George, and that Barclay's warranty
of authorit}' to act for his minor son is broken, whereby an action has
accrued to the plaintiff against the defendant.

The averment that the plaintiff never had any contract or negotia-
tions with George, is not sustained b}' the proof, for the testimonv of
Joseph N. Risle}', the agent who made the sale, wiiich is the only evi-
dence on this point that appears in the case, is, that the defendant told
him he was going out of business and intended to transfer it to George ;
requested him to see George ; he did so ; talked with him ; he looked
at the i)atent ; was satisfied with it, and talked with his father about
buying it. Tlie deed for the patent right in Atlantic count}' was drawn
to George P. Lippincott. It is proved b}' the admission of the defend-
ant, Barcla}- Lippincott, that at the time of such sale and transfer his
son George was a minor. This admission is competent testimony in
this suit against him.

A verdict of a jurv was given for the plaintiff against the defendant
in the court for the trial of small causes ; and on the trial of the appeal
in the Court of Common Pleas there was a judgment of nonsuit against
the plaintiff. The reason for tlie nonsuit does not appear on the record,
but the counsel have argued the cause before us on the case presented
by the pleadings and proofs, the contention being here, as it was below,
that the plaintiff could not aver and show the infancy of George P. Lip-
pincott, and bring this action against Barclay Lippincott, as principal
in the contract, in contradiction of its express terms.

On the face of the written agreement George P. Lippincott is the
principal and Barclay Lippincott the agent. The suit on the contract
should therefore be against the principal named, and not against the
agent, unless there be some legal cause shown to change the respon-
sibility. The cause assigned by the plaintiff is the infancy of George
at the time the agreement was made in his name by his father. The
authority on which he bases his right of action is Bay v. Cook, 2 Zab.
343, which follows and quotes Mott v. Hicks, 1 Cow. 536, to the effect
that if a person undertakes to contract, as agent, for an individual or
corporation, and contracts in a manner which is not legalh' binding
upon his principal, he is personally responsible ; and the agent, when
sued on such contract, can exonerate himself from personal respon-
sibility onl}' by showing his authority to bind those for whom he has
undertaken to act. Bay v. Cook was an action against an overseer
who had employed a phj'sician to attend a sick pauper, witliout an order
for relief under the provisions of the act concerning the poor. As his

516 PATTERSON V. LIPPINCOTT. [CHAP. III.

parol contract with the physician was entirel}- without authoritj' to bind
the township, it was said that he had only bound himself to pay for the
services rendered at his request.

Later cases have held that an agent is not directly liable on an in-
strument he executes, without authority, in another's name ; that the
remedy in such case is not on the contract, but that he may be sued
either for breach of warranty or for deceit, according to the facts of
the case. Jenkins v. Hutchinson, 13 Q. B. 744 ; Lewis v. Nicholson,
18 Q. B. 503; Baltzer v. Nicolay, 53 N. Y. 467; White v. Madison,
26 N. Y. 117, and many other cases collected in the notes in Whart. on
Agency, §§ 524, 532, and notes to Thomson v. Davenport, 9 B. & C.
78, in 2 Sm. Lead. Cas. *358 (Am. ed.) Andrews, J., in Baltzer v.
Nicolay, supra, sa,\s: "The ground and form of the agent's liability
in such a case has been the subject of discussion, and there are con-
flicting decisions upon the point ; but the later and better-considered
opinion seems to be, that his liability, when the contract is made in the
name of his principal, rests upon an implied warrant^' of his authority
to make it, and that the remed}^ is b}' an action for its breach."

Although the state of demand in the present case is uniformly drawn,
there is in the last sentence a charge that the defendant's warrant}' of
authorit}' in pretending to act for said minor is broken, whereby an
action has accrued. This alleged breach of an implied warranty is
founded on the assumption that the son could not confer any authority,
during his minority, to his father to act for him in the purchase of his
patent right. There are two answers to this position. The act of an
infant in making such contract as this, which may be for his benefit in
transacting business, either directl}' or through the agenc}' of another,
is voidable only, and not absolutel}' void, and therefore there is no
breach of the implied warrant}' unless there be proof showing that the
act of the agent was entirel}' without the infant's knowledge or con-
sent. The mere fact of the infancy of the principal will not constitute
such breach.

It was argued in Whiting v. Dutch, 14 Mass. 457, that a promissory
note signed b}' Dutch for his partner, Green, who was a minor, was
void as to Green, because he was not capable of communicating
authority to Dutch to contract for him, and that, being void, it was not
the subject of a subsequent ratification. But the court held that it was
voidable onl}', and having been ratified by the minor after he came of
age, it was good against him. See Tyler on Inf , c. 3, §§ 14, 18.

Another answer is, that the defence of infanc}' to this contract with
the plaintiflT can only be set up by the infant himself, or those who
legally represent him. Infanc}' is a personal privilege of which no one
can take advantage but himself. Voorhees v. Wait, 3 Gr. 343 ; Tyler
on Inf., c. 4, § 19 ; Bingham on Inf. 49.

In this case the plaintiff seeks to disaffirm the infant's contract with
him, in liis own behalf, and sue a third part}' on the contract, whose
authority to bind him the infant has not denied. The privilege of

SECT. II.] FIKBANK'iS EXEGUTOKS V. HUMPHKEYS. 517

affirming or disaffirming the contract belongs to the infant alone, and
the plaintiff cannot exercise it for him. The mere refusal to pay,
charged in the demand and proved, is not a denial of the defendant's
authority to bind the infant, for it may be based on the failure of con-
sideration, the invalidity of the patent, fraudulent representations, or
other causes.

The judgment of nonsuit entered in the Court of Common Pleas will
be affirmed.

FIRBANK'S EXECUTORS v. HUMPHREYS and others.

Court of Appeal. 1886.

[18 Q. B. D. 54.]

Appeal from the judgment of Mathew, J., on the trial of the cause
without a jury.^ . . .

The defendants appealed, but before the appeal came on for hearing
Firbank died, and his executors were substituted as plaintiffs.

Eigby, Q. C. (with him R. S. Wright and H. H. Asquith), Sir
Horace Davey, Q. C. (with him Cohen, Q. C, and W. Crraham), If. D.
Green, Q. C, Mackaskie^ and D. Walker., for various defendants.

Sir JR. Webster., A. G., and Finlay, Q. C. (with them H. Sutton),
for the plaintiffs.

^igl'y-, Q- C., in reply.

Lord EsHER, M. R. In this case there is a certain complication
in the facts, but no difficult}' as to the law when once the facts are
ascertained. The plaintiff in the action was a railwa}- contractor, and
entered into a contract with the Charnwood Forest Railway Company
to make the railway. Under that contract he was to be paid in cash
as the work went on, on the certificates of the engineer. The railway
company had no money of its own, and in order to carr}- out their
scheme and fulfil their contract with Firbank the}* entered into a finan-
cial arrangement with Maddison, which it is not necessary minutely to
consider, by which he undertook to place with the public certain deben-
ture stock and shares which the company had power to issue. He was
in fact to finance the company, and as part of the agreement he arranged
that he would pa}' Firbank on the certificates. He entered into no
agreement with Firbank, but his agreement was with the company, for
whom he was agent. The work proceeded and certificates were given,
and Maddison obtained money by placing debenture stock or otherwise,
and paid Firbank on some of these certificates, but after a time he
failed to do so, and I think there cannot be a doubt that in conjunction
with the secretary he acted dishonestly by the company. He placed

1 The reporter's statement is omitted. — Ed.

518 fikbank's executors v. Humphreys. [chap. hi.

debenture stock and received the proceeds, and instead of keeping bis
contract with the compan}' he and the secretary- must ha\e disposed
between them of the greater part of the funds so obtained. II is not
paying Firbank was no faihire of duty to or of contract witli him, but a
breach of the contract with the company. Firbank was by his agree-
ment entitled to be paid cash b}' tlie company for the worlc done,
and if they could not get it through Maddison they were, as between
themselves and Firbank, bound to get it otherwise.

I cannot say, without looIi:ing more minutely into the contract,
whether Firbank could have thrown it up, or whether he would have
been bound to continue to do the work. However that may be, it
became necessar}' as a matter of business that a new arrangement
should be made between Firbank and the company. [His Lordship
then dealt with the dispute as to the facts, and continued : — ] The
matter stands, then, that Firbank was to have debenture stock issued
to him in payment of his past claim, and was to go on with the works
on the terms of the new agreement. I now come to the meeting of the
26th of Jul^". All the directors were present at the meeting on that
da}-, and it would be absurd to suppose that they did not know of the
difficulties of the compan}-, and that Firbank had not been paid. It is
in evidence that the agreement was explained to all tlie directors
present — what agreement? Not only that for continuing the work in
future, for that would not b}- itself have set them free from their diffi-
culty, but the whole agreement. Under these circumstances we are all of
opinion that each of the directors had the matter explained and knew
what was being done. What was done? The agreement was, that if
Firbank would go on with the work he should be paid in a certain
manner, but it was also part of the agreement that if he would accept
debenture stock in lieu of his right to cash the company would issue
debenture stock to him. None of the directors knew that this would
be an over-issue of debenture stock, and the plan the}' adopted was the
easiest wa}' of getting rid of their difficulties. If they agreed to that
arrangement that would be an agreement between Firbank and the
com pan}' by which the company would be bound. There was then a
binding contract with the company that he would accept debentures for
the debt already due, and if they were issued go on with the work. If
nothing had occurred but a breach of that agreement I apprehend that
the directors would not have been liable. The arrangement of course
was that valid debenture stock should be issued, and they must have
known that they would have to issue it on behalf of the con:.i)any.
Under these circumstances what was done? At the meeting of the
26th of July the agreement was produced and explained, and the cer-
tificates for the debenture stock were also produced at that meeting, and
were signed by two of the defendants. It seems to me that the defend-
ants by agreeing that two of their number should sign the certificates
authorized this issue as much as if every one of them had signed and
handed over the certificates. They, therefore, issued them, and whether

SECT. II.] FIRBANK'S EXECUTORS V. HUMrHREYS. 519

they were banded over that da}' or two days later is immaterial, when-
ever it was done it was by and for the directors. The}' did not know,
but the truth was, that the certificates could not bind the company
and were worthless to Firbank, because the powers of the company in
this direction had alread}^ been exhausted, and this was an over-issue.
Under these circumstances had Firbank any right to recover personally
from the defendants? On the one side, it is said that according to the
rule in CoUen v. Wright, 7 E. & B. 301, 8 E. & B. G47, Firbank had
a right to sue the directors. The way in which it is put is, that the
dn-ectors were agents of the company and had authority to issue deben-
ture stock binding on the company, provided the powers of issuing such
stock had not been exhausted ; but they had no authority to make any
over-issue so as to bind the company. By issuing these certificates it
is said that it must be implied that they had affirmed that they had
authority to issue them, and that Firbank accepted them, relying on
that affirmation of authority, and as b}' reason of want of authorit}- he
has been damaged, the defendants have made themselves personally
liable within the rule laid down in Collen v. Wright, 7 E. & B. 301, 8
E. & B. 647. On the other hand, it is said that cannot be so, because
this debenture stock was issued in fulfilment of a contract which was
binding on the company, whereas in that case the contract which the
agent professed to enter into on behalf of his principal was invalid as
against the principal. I think the language used in Weeks u. Propert,
L. R. 8 C. P. 427, and Dixon v. Renter's Telegram Co., 3 C. P. D. 1,
shows that the principle of Collen v. Wright extends further than the
case of one person inducing another to enter into a contract. The
rule to be deduced is, " that where a person by asserting that he has
the authority of the principal induces another person to enter into an}^
transaction which he would not have entered into but for that assertion,
and the assertion turns out to be untrue, to the injury of the person to
whom it is made, it must be taken that the person making it undertook
that it was true, and he is liable personally for the damage that has
occurred."

That being the rule, I am of opinion that all these defendants by issuing
this debenture stock asserted to Firbank that they had authority to
bind the company by that issue, and whether that was in fulfilment of
a binding or invalid contract is immaterial. The question then arises,
for what damages they are liable. I do not say that in all such cases
they would be liable for the nominal amount of the stock, — for instance,
if the company had been solvent there was nothing to prevent Firbank
suing for the debt due to him and recovering from the company. He
might have been put to some expense by the postponement of his cash
payments and by having to sue the company-, and I am not b}' any
means clear that the damages in such a case in an action against the
directors would have been merely nominal. The damages, under the
general rule, are arrived at, by considering the difference in the posi-
tion he would have been in had the representation been true, and the

520 firbank's executors v. Humphreys. [chap, iil

position lie is actuall}- in, in consequence of its being untrue. If the
assertion had been true he would have had valid debenture stock which
would have been a first charge on the property of the company, and, as
I understand, that would have been a good security. If he is post-
poned or thrown back on his right of action against the company, the
company is in such a position that he will get nothing. Therefore, in
the present case the damages are the difference between what the
debenture stock would have been worth to him, and what he can get
from the company on his claim, which is nothing, and therefore the
damages are the full amount of the debenture stock, and the judgment
for that amount must be affirmed.

LiNDLEY, L. J.^ Whether the contractor is entitled to recover this
amount from the directors depends upon two questions, viz. : 1. Whether
the directors are to be treated as having impliedly warranted that they,
as agents of the company, had authority to issue £18,400 debenture
stock? 2. What is the measure of damages for which they are liable
if the}- are to be so treated?

The first question must in m}' opinion be answered in the contrac-
tor's favor. He could not know whether the company had or had not
already issued the full amount of debenture stock which it was author-
ized to issue. He was justified in assuming that the directors had power
to do what they did ; and by giving him the debenture stock certificates
they in truth represented to him that the}- had such power. Moreover,
they in effect requested him not to insist on paj-ment in cash, and to
go on with the works in consideration of receiving debenture stock.
These circumstances bring the case directly within CoUen v. Wright,
7 E. & B. 301, 8 E. & B. 647, and that class of cases. There is the
representation by the directors to the contractor and consideration given
by him in the shape of action by him on the faith of such representa-
tion. Nothing more is necessary to make the principle laid down in
CoUen V. Wright applicable to the case. The fact that the directors
were themselves deceived, and did not know or suspect that they
had not the power to do what they did, is immaterial in cases of this
description. Speaking generally an action for damages will not lie
against a person who honestly makes a misrepresentation which mis-
leads another. But to this general rule there is at least one well-
established exception, viz., where an agent assumes an authority which
he does not possess, and induces another to deal with him upon the
faith that he has the authority which he assumes. The present case is
within this exception, and the directors are liable to the contractor for
the misrepresentation the}' made to him.

The next question is as to the amount of damages to which the con-
tractor is entitled. The directors cannot be treated as having warranted
the solvency of the company, and if genuine debenture stock of the
company had been worthless, the measure of damages would have been

^ After stating the case. — Ed.

SECT. II.J MEEK V. WENDT. 521

nil, Init in tliis case the conipuiij's del)enture stock is and always has
been worth twenty- shillings in the pound. Consequently the value of
£18,400 genuine debenture stock is the measure of the contractor's
loss. That is what he agreed to take in satisfaction of a larger demand,
and that is what he has lost b\- reason of the mi.srei)rescutation made
tx) him. This was the view taken by Mr. Justice Mathew. I think it
correct. The appeal is dismissed with costs.

Lopes, L. J. I agree with the judgments that have been given, and
I have nothing to add. Aj^peal dismissed.

MEEK V. WENDT & CO.

Queen's Bench Division. 1888.

[21 Q. B. D. 126]

Case tried before Charles, J., without a jury. The facts and argu-
ments appear in the judgment.

Bigham, Q. C, and Joseph Walton^ were for the plaintiff.

Barnes, Q. C., and Butler Aspinall, were for the defendants.

Charles, J. In this case, which was tried before me without a
jur}', at Liverpool, the plaintiff seeks to recover damages from the
defendants for breach of warranty of authority, under the following
circumstances. The plaintiff was in 1887 the holder of two policies
of insurance on the ship Mindora^ effected with two insurance com-
panies in San Francisco called the " Union," and the ''Sun." Each
policy was for £1,000, and provided thus for payment of any loss :
" Loss if any hereunder payable by Messrs. the Anglo-Californian
Bank in London three days after sight of the certificate of loss ap-
proved by E. E. Wendt of London, or Richard Lowndes of Liverpool,
accompanied by this policy." A loss having occurred, and the com-
panies having repudiated liability, an action was commenced in England
against each company, and proceedings were duly taken for service of
the writs out of the jurisdiction. The defendant companies did not
appear, and judgment by default was signed for £1,000 against each
company. Negotiations for a settlement thereupon took place between
the plaintiff and the defendants, Messrs. Wendt & Co. of London, who
represented the two companies in this country. A sum of £300 was
in the early part of 1887 offered by each company, but was refused.
In August, however, the plaintiff expressed his willingness to accept
that sum, and on the 26th the defendants wrote to the plaintiff's solici-
tors, Messrs. Simpson & North, as follows: "As so long a time has
now elapsed since the offer of our clients was first made, we cannot go
further into the matter just now, but have at once written to San Fran-
cisco for instructions." On September 13, the L^'nion Company wrote
to the defendants stating that they would adhere to their offer, but no
answer was received from the Sun. The defendants thereupon tele*

522 MEEK V. WENDT. fCHAP. IH.

graphed on September 30 to San Francisco, and received an answer
on October 1, which they supposed authorized them to accept the
plaintiff's offer. The telegram of October 1 had not in fact been sent
•with the authority of the Sun. On receipt of this telegram the defend-
ants wrote to the plaintiff's solicitors in these words: "• We have now
heard from our clients in San Francisco, and the Union and Sun
Insurance Companies are prepared to abide by the offer they have
made some time ago, although tlie same was not accepted at the time.
Will you please send us up the policies? We can then doubtless
arrange for an earl}' settlement. Our clients insist that the judgments
you have obtained against them must be cancelled in a formal manner."
The policies and judgments were forwarded on October 3. On the
7th the defendants' solicitors sent the judgments to the plaintiff's
solicitors, with releases indorsed for the plaintiff's execution. He
executed them, and the}' were returned on the 8th. On the 10th the
defendants' solicitors wrote to the plaintiff's solicitor: "We have
received the judgments, with the releases indorsed thereon, and now
forward you the policies with the certificates, and on presentation at
the bank, the Anglo-Californian Bank in London, you will obtain pa}'-
ment. We should saj' you will be able to present the policies through
your own bankers. The bankers have already' had it notified to them
that the certificates have been granted." Pa^'ment in respect of the
Sun policy certificate was refused to the plaintiff by the Anglo-Cali-
fornian Bank on instructions from the Sun Company cabled from
America. Some correspondence between the solicitors of the plaintiff
and the defendants took place in November and December, and the
mistake under which the defendants had acted was fully explained. It
was in no wa}' disputed that the defendants had throughout acted bona
fide in the matter.

On Januar}' 8 the plaintiff's solicitors wrote to the defendants :
*' Since the Sun Company repudiate A'our action in settling this matter,
Mr. Meek instructs us to apph' to yon for the amount agreed to be
paid to him as the consideration for releasing the judgment against the
company." In repl}' the defendants' solicitors returned the release,
which Messrs. Wendt & Co. had never parted with, and pointed out
that Mr. Meek could cancel it, and remain with his remed}' under his
judgment for £1,000. The plaintiff's solicitors returned the release,
notifying that Mr. Meek held the defendants liable for the sum of £300,
to recover which and certain expenses thrown away this action was
brought.

At the trial it was not seriously contested that the defendants had
in their letter dated October 1 innocent!}' represented themselves as
having the authority of the Sun Company to settle the claim of the
plaintiff for £300, and the question principally discussed was as to the
proper measure of damages for the defendants' false representation of
authority. The plaintiff contended that he was entitled to the full sum
of £300, and the expenses he had incurred in negotiating the eompro-

SECT. II.] MEEK V. WENDT. 523

mise. The defendants paid into Court a sum sufficient to meet sucli
expenses as had been incurred subsequent to October 1, but denied
an}' further liability'. The matter therefore to be decided is, whether
the plaintiff is entitled to an}', and what, additional damages.

Now he is entitled to all the damages which are the natural and
proximate consequence of the false assertion of authority. "The
measure of damages," says Lord Esher, M. R., in la re National
Coffee Palace Co., 24 Ch. D. 371, " in actions for breach of warranty
of authority' is always the same in every case. I will not consider what
theoretically it ought to be, but I sa}' we must decide it according to
the rule which has been followed for a series of years. Spedding v.
Nevell, L. R. 4 C. P. 212, and Godwin v. Francis, L. R. 5 C. P. 295,
are cases in which the plaintiff was the intended purchaser, and Simons
V. Patchett, 7 E. & B. 568, was a case in which the plaintiff was the
intended vendor, and in all these cases the Court laid down that
the measure of damages was what the plaintiff actually lost b}' losing
the particular contract which was to have been made b}- the alleged
principal if the defendant had had the authorit}' he professed to have :
in other words, what the plaintiff would have gained b}' the contract
which the defendant warranted should be made." Applying this rule
to the present case, the plaintiff, b}' losing the particular contract
which was to have been made, has prima facie lost the expenses
thrown away, and the sum of £300, which 1 have no doubt he would
have obtained without delay or difficult}* in London from the Anglo-
Californian Bank within three days after sight of the approved certifi-
cates. But then it is contended by the defendants that the plaintiff is
in a position to enforce all his original rights against the company on
the judgment and on the policy, and that these are worth at least as
much as £300, so that the plaintiff has in truth lost nothing beyond the
expenses thrown away. But with regard to the judgment, it was not
disputed that the law as to enforcing foreign judgments is the same in
the Courts of the United States as in our own, and according to our
law the judgment could not be effectively put in suit in the Courts of
the United States, inasmuch as the defendant compan}' were not P^ng-
lish subjects or resident in England either when the polic}' was issued
or when the suit was commenced. This seems clear from the case of
Schibsby y.Westenholz, L. R. 6 Q. B. 155, per Blackburn, J., at p. 160,
and in this country the judgment has no present value, as the defendant
company have no property here available for execution. With regard
to the claim on the policv, no doubt the plaintiff has a claim which he
may or may not be able successfully to enforce at San Francisco ; a
claim, however, which has been wholly repudiated, and which will be
strenuousl}' resisted. I cannot fix an\' pecuniary value on this claim,
and I do not think that its existence ought to affect the amount which
\& prima facie the proper amount to be awarded to the plaintiff for the
loss of the particular contract which was to have been made b}' the
alleged principal. I therefore give judgment for the plaintiff with costs
for £300 in addition to the money paid into Court.

524 LILLY, WILSON & CO. V. SMALES, EELES & CO. [CHAP. IIL

LILLY, WILSON & CO. v. SMALES, EELES & CO.
Queen's Bench Division. 1892.

[[1892] 1 Q. Z5. 456.]

Case tried before Denman, J. The facts and arguments are suffi-
ciently' stated in the judgnaent.

Barnes^ Q. C, and W. A. 3feek, for the plaintiffs.

Mobson^ Q. C, and W. H. Clay, for the defendants.

Cur. adv. vult.

Denman, J., delivered the following written judgment. The plain-
tiffs in this case were owners of the ship PockUngton ; the defendants,
brokers and shipping agents. On April 28, Mr. F. Eeles, as represent-
ing the defendants, met Mr. F. Cattle, a repi'esentative of the firm of
Wood, Cattle & Co., in London, who acted as agents of the plaintiffs,
and produced a list of requirements of ships to fulfil several different
kinds of engagements. Amongst others was one describing the freight
offered as 3s. 9f?. There was a conflict of evidence as to what took place
at this interview ; but it was arranged that Wood, Cattle & Co. were
to have two hours in which to accept or reject the offer. Before the
two hours expired the same parties met again ; and I find as a fact,
though Mr. Cattle's memor}' was a blank upon the point, that Mr. F.
Eeles expressed a doubt as to whether there had not been a mistake as
to the rate of freight offered b}' his principals in the telegram of which
the list produced bj- him at the earlier interview was a translation. In
fact, the rate 3s. 9fZ. was mentioned owing to a blunder of the tele-
graphic officials who transmitted the message. The freight actualh'
offered by Reischer, the defendants' principal, was 3.s\ \\d. The mis-
take arose from tlie alteration of a figure " 4 " into a figure " 7 " in the
cipher number ; the figure actuall}' given in b3' the intending charterer
having been a " 4," which meant 3s. 4|-c?., and not a " 7," which meant
3s. 9<:?. The defendants, on receiving the charter signed bj- " Wood &
Co., as agents," returned it signed " by telegraphic authority of Sam
Reischer, Smales, Eeles «& Co., as agents." It was contended by the
plaintiffs that the defendants were liable in the action as having war-
ranted or held themselves out as having an authorit}" which they did
not possess. The defendants, on the other hand, relied upon the form
in which the}' had signed as negativing tlie warranty of authorit}' which
would have been implied if they had merely signed " as agents," and
as amounting to a representation that the}' took no such risk upon
themselves, but merel}' warranted that they had such authority as a
possibl}' erroneous telegram might confer.

If the case depended merely upon the construction of such a signa-
ture as a matter of law, much is to be said on both sides. On the one
hand, it is diflficult to understand why sucli a mode of signing should be
used if it left the agent signing under precisely the same liability as he

SECT. III.] OWEN V. GOOCH. 525

would be under without it. On the other hand, there is force in the
argument used by Mr. Barnes for the plaintiffs, that, inasmuch as the
shipowner is often half the globe away when charters are made, there
would be great inconvenience if in every case it was necessary to verify
the correctness of telegrams before a firm contract could be relied on.
But I do not think it necessary to consider all the arguments which
were used as to the possible meaning of the words here adopted, be-
cause I think that it was not a question wholl}' of legal construction,
but that the words adopted were words the true meaning of which was
to be ascertained by the evidence of persons engaged in the business of
commerce of this nature ; and if 1 am right in this, I have no hesita-
tion in finding that the defendants' witnesses established that this form
of signing is well understood in the trade as meaning to negative the
implication of a warranty by the charterer's agent, at all events, to a
greater extent than warranting that he has had a telegram which, if
correct, authorizes such a charter as that which he is signing.

It appeared from the evidence of trustworthy witnesses for the de-
fendants, that whenever charters are entered into by brokers in accord-
ance with telegraphic instructions, it is usual to sign in this form with
the very object of avoiding the implication of an absolute warranty. I
see no reason to doubt that this was the real object of the defendants in
signing as the}' did ; and, this being my opinion, I think that there can
be no ground for fixing them with a warrant}' such as they never in-
tended to give, and which would be wholly inconsistent with the general
understanding of persons engaged in the business in which the}' were
employed. I therefore give judgment for the defendants with costs.

Judgment for the defendants}

SECTION III.

Authorized Contracts for a disclosed Principal.'^

OWEN V. GOOCH.

Nisi Prius. 1797.

[2 Esp. 567.]

Assumpsit for work and labor, and goods sold and delivered, with
the common counts.
Plea of 71071 assumpsit.
The plaintiff was a paper-hanger, and the action was brought to

1 See Walker v. Bank of State of New York, 9 N. Y. 582 (1854) ; Hall v. Lauder-
dale, 46 N. Y. 70 (1871 ) ; Beattie v. Lord Ebury, L. R. 7 Ch. 777, 800 (1872) ; Newman
V. Sylvester, 42 Ind. 106 (1873) ; Michael v. Jones, 84 Mo. 578 (1884). —Ed.

2 And see Chapter IV.

526 OWEN V. GOOCH. [CHAP. III.

recover a sum of mone^' for work done for the defendant in the course
of the plaintiff's business.

He proved the order given for the paper by the defendant, and the
work done.

The defence rehed upon was that, though the work had been ordered
by the defendant, 3-et that it had not been ordered for himself, but for
a person of the name of Tippell, and had been done at Tippell's house
at Walthamstow, and that the plaintiff at the time of the order was
informed that the work was on Tippell's account.

Defendant having given notice to produce the plaintiffs book, on
being inspected, the entry was " Mr. Tippell by the order of Gooch."

The plaintiff contended that the name of Tippell being prefixed to
the order was by no means a proof that the credit was given to him, but
was merely identifying the order ; that Tippell might be a person totall}-
unknown to the plaintiff, but to whom Gooch the defendant was cer-
tainly known, so that the goods must be deemed to be ordered on
Gooch's credit, and he be liable.

For the defendant it was insisted that Gooch b}^ the order appeared
to be only the agent, and the goods to have been furnished on Tippell's
account.

Lord Kenyon. The goods are ordered b}' Gooch, but at the time it
is not pretended that they were for his own use ; they were ordered for
Tippell, and the entry is made in his name. "We must keep distinct the
cases of orders given by the parties themselves, and by others as their
agents. If the mere act of oi'dering goods was to make the party who
ordered them liable, no man could give an order for a friend in the
country, who might request him to do it, without risk to himself. If a
party orders goods from a tradesman, though in fact the}' are for another,
if the tradesman was not informed at the time that thej' were for the use
of another, he who ordered them is certainly liable, for the tradesman
piust be presumed to have looked to his credit onlj". So if the}' were
ordered for another person, and the tradesman refuses to deliver to
such person's credit, but to his credit only who orders them, there is
then no pretext for charging such third person ; or if goods are ordered
to be delivered on account of another, and after delivery the person who
gave the order refuses to inform the tradesman who the person is,
in order that he ma}- sue him, under such circumstances he is himself
liable. But wherever an order is given by one person for another, and
he informs the tradesman who that person is for whose use the goods
are ordered, he thereby declares himself to be merely an agent, and
there is no foundation for holding him to be liable.

In this case Owen, tlie plaintiff, was informed of all the circumstances,
that Gooch was giving the order for Tippell ; the goods are sent to
Tippell's house, and the entry made in his name. I think there is no
color for making Gooch the debtor.

The plaintiff was nonsuited.

ErsMne and Manley for the plaintiff.

Gibbs and Park for the defendant.

SECT, III.] PATERSON V. GANDASEQUI. 527

PATERSON AND ANOTHER V. GANDASEQUI.
King's Bench. 1812.

[15 East, 62.]

This was an action for goods sold, and upon the common money
counts. At the trial before Lord Ellenbokougii, C. J., at the London
sittings after last Trinity term, the following facts appeared : The
defendant was a Spanish merchant, and a director of the Philippine
trading company at Madrid, with which he was engaged in adventures
to a large amount. In January, 1810, being then in London, he
employed Messrs. Larrazabal & Co., of London, merchants, to purchase
for him various assortments of goods for the foreign market, for which
they were to charge a commission of 2 per cent. Larrazabal and Co.
accordingly applied to the plaintiffs, requesting them to send to their
counting-house an assortment of silk hose, with their terms and prices.
Paterson, Jr., waited on them at the time and place appointed, with
the patterns, terms, and prices, at which time the defendant was
present at the counting-house ; and the samples were handed over to
him. He inspected them, and selected such articles as he required;
and the terms and prices were also shown to him and left there. On the
6th of January the plaintiffs received from Larrazabal and Co. an order
in writing for 574 dozen of silk hose, to be ready in town on or before
the 20th of February next, the payment as agreed upon. (Signed)
Larrazabal, Menoyo, and Trotiaga : and shortly after another order
for 150 dozen more, with the like signature. Both these orders were
given by Larrazabal &, Co. for the use of and in execution of the orders
received b}- them from the defendant. The goods were sold bj' the
plaintiffs on the credit of Larrazabal & Co., the invoices were made out
in their names and sent to them, and Larrazabal debited the defendant
with the amount. Soon after, and before the credit had expired,
Larrazabal and Co. became insolvent ; and thereupon the plaintiffs
demanded payment of the defendant ; which being refused, the present
action was brought. Lord Ellenborough, C. J., being of opinion upon
these facts that the plaintiffs had dealt w'ith Larrazabal & Co. upon their
sole and individual credit, knowing that the purchases they made were
on account of the defendant, directed a nonsuit. In the following term
it was moved to set aside the nonsuit, on the ground of assimilating
this case of a dormant principal to that of a dormant partner, where,
though the party furnishing goods to the ostensible partners intended
at the time to give credit only to them, yet he may afterwards pursue
his reraed}- against the dormant partner, when discovered. A rule nisi
having been granted,

Sir Y. Gihbs, A. G., Marryat, and Littledalc^ now showed cause
against it.

Garrow, ParJc, and Michardson, contra.

528 PATERSON V. GANDASEQUI. [CIIAP. III.

Lord Ellenborough, C. J. The Court have not the least doubt that
if it distinctly appeared that the defendant was the person for whose use
and on whose account the goods were bought, and that the plaintiffs
knew that fact at the time of the sale, there would not be the least
pretence for charging the defendant in this action. But the doubt
is whether that does sufficiently appear by the evidence. It appears
that the defendant was present at the counting-house of Larrazabal,
where one of the plaintiffs had come b}- appointment, and in his presence
inspected and selected such of the articles as he required ; that the
goods were afterwaxxls ordered by Larrazabal & Co., credit given to
them, and the invoices made out in their name, and sent to them. The
question is whether all this was done with a knowledge of the defendant
being the principal? The law has been settled by a variety of cases,
that an unknown principal, when discovered, is lial^le on the contracts
which his agent makes for him ; but that must be taken with some
qualification, and a party may preclude himself from recovering over
against the principal, by knowingly making the agent his debtor. It
certainly appeared to me at the trial that the plaintiffs knew of the
defendant being the principal, and had elected to take Larrazabal & Co.
as their debtors, or I should not have nonsuited the plaintiffs ; but as
there may perhaps be a doubt upon the evidence, whether the plaintiffs
had a perfect knowledge of that fact, it may be as well to have it recon-
sidered.

Grose, J. I think that the plaintiffs in this case might have elected
whom they would have for their debtor ; and here they seem to have
made their election. That, however, is the only doubt which is fit
to be considered.

Le Blanc, J. It will be material to have the facts inquired into
more fully, in order to ascertain whether the tradesmen sold to the
agents with a knowledge of the part}' for whom they were buying ; or
whether, without such knowledge, the}* chose to give credit to the
agents, whether buA'ing for another or for themselves. Many of the
cases may perhaps be found distinguishable from this by their not fall-
ing precisely within the doctrine applicable to principal and broker ;
and it may be necessar}' to consider in the present case, whether any
distinction can be made between a home and a foreign principal,

Bayley, J. There may be a particular course of dealing with respect
to trade in favor of a foreign principal, that he shall not be liable in cases
where a home principal would be liable ; that would be a question for
the jury. I have generally understood that the seller may look to the
principal when he discovers him, unless he has abandoned his right to
resort to him. I agree that where the seller knows the principal at the
time, and yet elects to give credit to the agent, he must be taken to
have abandoned such right, and cannot therefore afterwards charge the
principal. I think it should be reconsidered in this case whether the
plaintiffs did so, Hule absolute.

SECT. III.J ADDISON V. GANDASEQUI. 529

ADDISON V. GANDASEQUI.
Common Pleas. 1812.

[4 Taunt. 574.]

This was an action for goods sold and delivered, and was tried
before Mansfield, C. J., and a special jury, at the sittings at Guild-
hall, after Michaelmas Term, 1811, when it ai)peared that the defendant
was a member of a Spanish trading corporation, called the Philippine
Corapan}-, and was a director of that compan}', and had come over to
England to select a large assortment of goods destined for Lima.
Larrazabal, Menojo, and Trotiaga, a house established in London,
assisted him in providing the goods, and ihey having applied to the
plaintiff, with whom they had previous dealings for twenty years, the
plaintiff went by appointment to the house of Larrazabal & Co. in
the city, with patterns of goods ; he found the defendant there, who
examined various patterns, cheapened the prices, mentioned the market
for which they were intended, told the plaintiff he should charge the
long price, and he, the defendant, would himself receive the bounty on
exportation, and stipulated for fifteen months' credit; he took goods
home to his house in Clarges Street, and kept them a week to examine,
and a clerk from the plaintiff's house frequenth' attended on him there
to show and explain the patterns. The plaintiff received a written
order from Larrazabal & Co. for a quantity' of these goods ; after
which the defendant required of the plaintiff an abatement of £6 per
cent on the prices of them, which the plaintiff refused to make, and
the parties were about to terminate the treaty : but at length the
defendant agreed to give the whole price required, and told the plain-
tiff he might proceed to execute the order. The plaintiff and his
clerks repeatedly had other meetings with the defendant, and several
other parcels of goods were ordered by Larrazabal & Co. which had
been selected by the defendant at those meetings. Larrazabal & Co.
referred the plaintiff to the defendant for instructions as to the mode
in which the goods were to be packed for exportation, and the defend-
ant gave those instructions. The invoices were all made out b}' the
plaintiff to Larrazabal & Co., and they were debited in the plaintiff's
books for the amount of the long price. Larrazabal & Co. in their
books debited the defendant with the amount of the invoices, and also
with a commission for purchasing them, of £2 per cent on the amount,
which was their ordinary mode of dealing with the defendant, and they
credited the plaintiff with the amount of the invoices. Upon an
occasion subsequent to these sales, Larrazabal & Co. having applied to
purchase some goods of the plaintiff, the plaintiff said he thought he
had for that time extended his credit far enough to Larrazabal & Co.,
and declined furnishing the goods. Larrazabal & Co. gave the orders

530 ADDISON V. GANDASEQUI. [CHAP. HL

for packing and shipping the goods, and in tlieir own names, but in
pursuance of instrurtions given b}- the defendant, chartered a vessel to
Lima, in which these goods were conveyed, and instructed the master
not to part with the return cargo until payment of the freight and
amount of Larrazabal's demand on the defendant. The master did not
deliver the return cargo but in consequence of instructions from Lana-
zabal & Co., after a sum of £72,000 had been deposited by the defend-
ant for their security. One of the partners in their house, which had
become bankrupt, being examined, stated, that the house purchased
these goods of the plaintiff on their own credit and account, as thej'
would any other goods for which the}' had occasion in their trade, and
Larrazabal & Co. had insured the goods in their own names, for which
the\' had a further commission of a half per cent. The plaintiff con-
tended that though the credit was given to Larrazabal & Co., yet that
as the defendant had the goods, he was liable to pay for them ; and that
this was onl}- the common case of a broker buying for his principal :
the principal when disclosed is liable. Mansfield, C. J., left it to the
jury whether Larrazabal did act as broker or not, and observed that
as the defendant saw and handled the patterns, and was seen in the
business, if he had been the purchaser, most probably the credit would
have been immediateh" given to him, the jury under these circumstances,
being of opinion that the goods were sold to Larrazabal as principal,
found a verdict for the defendant.

Best., Serjt., for the plaintiff, in pursuance of liberty reserved at the
trial, obtained, in last Hilar}' term, a rule nisi to enter a verdict for the
plaintiff.

Shepherd, Serjt., showed cause.

JBest and Yaughan, Serjts., in support of the rule.

Shepherd, in reply.

Mansfield, C. J., now gave the judgment of the Court. This is ft
motion made for a new trial, the verdict having been given for the de-
fendant. The circumstances of the case .are very singular. The motion
is made on the ground that though the actual vendees of the goods were
Larrazabal & Co., yet that the verdict ought to have gone against the
defendant, as the person for whom the goods were bought by Larrazabal
& Co. I left it to the jury to consider whether Larrazabal & Co. were
acting as factors for the defendant, or whether the goods were bought
b}' the defendant himself, who was acting for the Philippine Company.
In certain cases it would undoubtedly be a monstrous thing to charge the
defendant, but in this case there would be no such hardship, because
the defendant had received the money of the Philippine Companj'.^ . . .

I left it to the jurj' to sa}' whether this were the common case of a
merchant here buying for his correspondent abroad, on which he
charged a commission, or whether it was a case of a factor buying
goods for his principal ; and they found for the defendant. None of

^ Here the facts were recapitulated. — Ed.

SECT. III.] KIRKPATRICK V. STAINEK. 531

the cases that have been cited at all resemble this case ; for although it
was not said expressly that the plaintiff did not look to the defendant,
yet, upon all the circumstances of the transaction, it evidently appears
that he did not. And if a man selling to another for the use of a third,
who stands b}' and is known, may make the contract with the buyer,
without making the third person responsible, certainly this is that
case. . . . Now in this case if it had been intended that the sale should
be to the defendant, and that Larrazabal & Co. were to be only sure-
ties, the plaintiff would certainly have debited the defendant, and taken
a guarantee from Larrazabal &, Co. And only see what a state the de-
fendant would be in, buying, as he does, such an immense amount of
goods of the plaintiff, and other persons. And although it has been
objected b}' the counsel that it is a hard case, that this money getting
into the hands of Larrazabal &, Co. should not find its wa\- wholly to
the plainlitf, of whom the goods were purchased, yet we cannot alter
the law of the case, or the nature of the contract, on account of any
subsequent events. The insolvency of Larrazabal & Co. ma^' make an
unfortunate difference in the case as to the consequences, but it will
not alter their liability. We, who are called on to set aside this verdict,
must, in order thereto, sa\' on this evidence, that Larrazabal only was
not to be the debtor, but that the defendant also, who was to buy these
goods for the Philippine Company, was to be liable : but we can find no
evidence to warrant us in that conclusion : the rule therefore must be

Discharged.

KIRKPATRICK v. STAINER.

Court of Errors of New York. 1839.

[22 Wend. 244.]

Error from the Supreme Court. This was an action of assumpsit,
brought b}' Kirkpatrick against Stainer, for the breach of a contract
alleged to have been made by the defendant, to cause insurance to be
effected upon a quantit3' of coffee shipped b}' the plaintiff at New York
for the port of Trieste. The vessel in which the coffee was shipped
was lost at sea. The plaintiff alleged that no insurance had been
effected, and claimed the value of the coffee, with anticipated profits.
The cause was heard bj' referees, who made a special report, setting
forth the evidence adduced before them. The principal evidence of
the agreement rested in two letters : one written by the plaintiff to the
defendant on the 27th August, 1830, and the answer thereto under date
of the 30th August. The plaintiff's letter commences thus : "Sir: The
object of the present is to confirm the verbal agreement made between
ourselves respecting 1499 bags of coffee now discharging, of which I

532 KIRKPATRICK V. STAINER. [CHAP. III.

showed you invoices and bills of lading, Tlie wliole quantity' is to be
shipped on joint account. For the one half which you take on your
account, you are to pay in cash, — are to advance me five-sixths of the
value at the price of 5^100 per pound; on this advance you are to
charge me interest," etc. (specifying the terms of the advance). The
plaintiff then proceeds: "The coffee must be shipped as soon as pos-
sible for Trieste, to the care of your friends, Messrs. Dutilh, Tick}-, Sr.
Co., with orders for immediate sales and prompt remittances" (direct-
ing tlie mode of remittance). He then adds : '' You will also take care
that insurance be effected, either here or in Europe, on the invoice
amount, with ten per cent additional, for probable gains." The de-
fendant, in his answer of the 30th August, says: "I consent to the
different points respecting the projected shipment to my friends, Messrs.
Dutilh, Ticky, & Co. in Trieste, of your 1499 bags of coffee. It is
understood that the above parcel will be shipped on joint account
between you and Messrs. Dutilh, Tick}-, & Co. For their half share, I
shall pay cash hei'e, at the price of 5|100 short price per pound net;
and on ^'our half, which you consign for your account to my above
Trieste friends, I have no objection to advance five-sixths of the above
price, cash, charging the usual interest of six per cent per annum,
from the time my above Trieste friends will remit the funds to cover
my drafts on London." Then after adverting to the mode of remit-
tance, he adds : " The insurance will be covered after your desire, with
ten per cent imaginarj' gain on the invoice cost, either here or in
Europe, as I '11 judge more convenient." This letter from the defend-
ant is signed, "Ed. Stainer." Sundry letters from Messrs. Dutilh,
Ticky, & Co. to the plaintiff", relative to the non-arrival of the vessel,
the insurance of the coffee at Trieste, and negotiations with the under-
writers there in respect to the payment of the loss ; and also several
letters which passed between the plaintiff and the defendant on the
same subject were read in evidence. The defendant also called a wit-
ness, who stated that he knew the mercantile house of Dutilh, Ticky, &
Co. of Trieste, and also knew the defendant, who, in August, 1830,
was residing in the city of New York as the agent of that house, and
that it was understood by the house, of which the witness was a mem-
ber, and he believed by merchants generally-, that the defendant was in
business only as agent of the Trieste house.

The counsel for the defendant insisted before the referees, that the
defendant was not personally liable to the plaintiff in this cause, inas-
much as in the transaction in question, he acted only as the agent of
Messrs. Dutilh, Ticky, & Co., and that, with the knowledge of the
plaintiff. The referees made a report, setting forth the testimony
in the cause, and that the above objection was raised to a recovery ;
they then state that the}' find that no insurance was effected by the
house of Dutilh, Tick}-, & Co., but whether or not the defendant is
personally liable to the plaintiff" for the breach of the agreement to
effect such insurance, they say they are altogether ignorant, and pray

SECT. III.] KIRKPATRICK V. STAINER. 533

the advice of the court ; and if it shall seem to the court that the de-
fendant is personally liable, then the}' find that there is due to the
plaintiff $832.50 ; but if, &c., then that there is nothing due to the
plaintiff. The Supreme Court rendered judgment in favor of the de-
fendant. The following opinion was delivered by the Chief Justice : —

" Hi/ the Court., Nelson, C. J. Taking the two letters of the 27th
and 30th August, 1830, as the evidence of the contract respecting the
shipping of the coffee to Trieste, and it appears to me there cannot be
a doubt that the defendant contracted merelj- as agent for the house of
Dulilh, Tick}', & Co., and that it must have been so intended and
understood by the plaintiff. The defendant had no interest in the
adventure, and expressly says to the plaintiff, in his letter recognizing
and ratifying the agreement, ' It is understood that the above parcel
[alluding to the 1499 bags of coffee] will be shipped on joint account
between you and Messrs. Dutilh, Ticky, & Co.' ' For their half share
I shall pay cash here,' &c. There is no dispute but that defendant
was the agent of the above house in the cit}' of New York, and duly
authorized to make for them the agreement in question. They recog-
nized its validity, and opened immediatelv a correspondence directly
with the plaintiff, which began January, 1831, and continued till Octo-
ber. 1831.

" Neither is there anything in the correspondence of the plaintiff with
the defendant in the business, from which to infer he considered him
personally holden ; but the contrary. The case presented is the ordi-
nary one of a private agent clothed with full authorit}', acting in behalf
of his principal ; not only disclosing it, but actually contracting in his
name ; for such is the form of the contract to be extracted from the
letters of the 27th and 30th August, 1830. There can be no doubt, a
person acting as agent of a foreign house, is not responsible, individu-
alh', if he discloses his principal, and acts only in his behalf, an}' more
than an agent of a house in this country. There is no such distinction
to be found of any authority in the books, nor is there any reason to
support it. If an individual desire the personal credit and liability of
the agent, he should make known the fact, and all parties will then
understand it ; if the agent declines, the vendor can refuse to deal with
him." The plaintiff sued out a writ of error.

The cause was urged in this court by

G. Wood, for the plaintiff.

J. Prescott Hall, for the defendant.

By the Chancellor. There is no question as to the general rule of
law, where an agent or factor, who is duly authorized to contract for
his principal discloses the fact of his agency, and the name of the per-
Bon for whom he is acting, that he is not personally liable if he makes
the contract in such form as to be binding upon his principal, unless it
satisfactorily appear that he also intended to bind himself personally.
The general rule on this subject is not questioned by the counsel for
the plaintiff in error; but he insists, in the ^rs# place, that the fact

534 KIRKPATKICK V. STAINER. [CHAP. III.

that Diitilh, Ticky, & Co. were foreigners, residing at Trieste, in the
Austria-German territories, takes the case out of the general rule, and
renders the agent personally liable ; and second!)/, that the form of the
contract was not such as to make it binding upon the defendant's
foreign correspondents, — or, at least, that it appears from the contract
itself, that it was the understanding of the parties that the defendant
was to be personall}' liable for the performance thereof.^ . . .

By Senator Verplanck. I concur with the Supreme Court in their
understanding of this negotiation. Taking together the two letters of
the parties on which the bargain was concluded, the defendant appears
to have acted merel}- as the known agent of the house at Trieste, for
and on account of whom he made the advances, and to whom the goods
were consigned. He contracted for the foreign house and in their
name, but made no undertaking for himself. This evidence of the
correspondence is supported and confirmed bj- collateral proof of the
general belief and understanding among New York merchants, that
the defendant was in business only as the agent of the foreign house.
In such dealings it is settled that the principals are alone responsible,
unless there be some special circumstance to fix the responsibihty upon
the agent personally. I do not think that there is an}' such circum-
stance in this case ; although the fact of the defendant being an agent
of a house abroad, added to the authorit}' of Judge Stor^-, the reasons
he assigns, and the unqualified language he uses as to the liabilities of
factors purchasing for foreign merchants, occasioned at first some
doubt in m}' mind. In his late valuable work on agency, Judge Story
saj's : " On the ground of general convenience and the usage of trade,
the general rule obtains that agents or factors, acting for merchants
resident in foreign countries, are held personally liable upon all con-
tracts made by them for their emplo3ers ; and this, without any dis-
tinction whether the}' describe themselves in the contract as agents or
not. In such cases, it is presumed not only that credit is given to such
agents, but that it is exclusively given to them to the exoneration of
their employers. Still the presumption is liable to be rebutted by proof
tliat the credit was given to both principal and agent or to the principal
alone." Story on Agency, § 268. See also the reasons assigned in
the preceding section and in § 290. To the same effect a respectable
recent English elementary writer speaks thus : " It seems that when a
British agent contracts for a foreign principal, the agent is liable."
Smith on Mercantile Law, p. 78. Now, if this be also the doctrine of
our own commercial law, it may well be doubted whether the language
of the correspondence, though showing Stainer " to describe himself in

1 The remainiler of Chancellor Walworth's opinion gave reasons for agreeing
with the plaintiff in error as to both points ; and, as to the first point, cited Gonzales
V. Sladen, Bnll. N. P. 130; De Gaillon v. L'Aigle, 1 B. & P. 368 ; Thomson v. Daven-
port, 9 B. & C. 87 ; Burgen v. Buck, 7 Shaw & Dunl. Sess. Gas. 824; 1 Bell's Illust.
153; Smith's Merc. Law, 2d ed., 104, 120; Paley Ag. 294; 2 Livermore's Ag. 249;
Story Ag. § 268. — Ed.

SECT. III.] WILLIAMSON V. BAKTON. 535

the contract as an agent," is yet sufficient, even with the collateral evi-
dence (conclusive as the whole would be in the case of an agent for a
domestic principal), to rebut such a positive legal presumption, and to
prove that credit was given only to the Trieste house, so as to authorize
the court to pronounce, on the facts submitted to them by the referees,
"• that the defendant was not personally liable upon the agreement."
But upon examining the several cases cited in support of this rule, I
am satisfied that Judge Story has stated the doctrine in too strong and
unqualified terms, as if this presuniption were a universal inference of
law, applicable everywhere. I think, on the contrary-, that this is a
presumption founded altogether upon usage and the particular course
of trade, and arises only when and where that usage is known or proved
to exist ; of course, then, that it is not au unvarying legal presump-
tion, to be applied to an}- contract, made anywhere, by a factor or
agent representing a person or commercial house in some foreign
country. . . .

On the question being put. Shall this judgment be reversed? the
members of the court divided as follows :

In the affirmative : The Chancellor, and Senators Hull, H. A.
Livingston, Paige, Spraker, Van Dyck — 6.

In the negative : The President of the Senate, and Senators Beards-
let, Fox, Furman, Hawkins, Hunt, Huntington, Jones, Maynard,
Moseley, Nicholas, Peck, Powers, Skinner, Sterling, Yerplanck,
Wager, Works — 18.

Whereupon the judgment of the Supreme Court was

Affirmed.^

WILLIAMSON V. BARTON.

Exchequer. 1862.

[7 H. .j- N. 899.]

Declaration for goods sold and delivered. Plea : never indebted.

At the trial before Bramavell, B., at the London Sittings, after
Trinity Term, 1861, it appeared that the plaintiff, who was a farmer
in Pembrokeshire, being about to quit his farm, put up his farm pro-
duce for sale by auction. The auction took place on the 25th of Sep-
tember, 1857, when the defendant attended and bid for several lots of
hay and corn, which were knocked down to him, as the highest bidder,
for £150. Thereupon, the auctioneer asked him his name in the usual
wa}", and he replied, " Barton," without saying whether he was pur-
chasing for himself or any other person, and the auctioneer's clerk
wrote it down as the name of the purchaser. The defendant had been.

1 Ace: Kaulback i-. Churchill. 59 N. H. 296 (1879). —Ed.

536 WILLIAMSON V. BAKTON. [CHAP. III.

for some time previous to, and was at tlie time of the sale, foreman to
one Smith, a government contractor, who was then executing certain
works in Pembrolve Dockyard ; and the defence to the present action
was, that the defendant bought the ha^- and corn, not for himself, but
for Smith. The plaintiff was present at the sale, but took no part
whatever. He knew tliat the defendant was Smith's foreman, but he
knew nothing as to whether he was, on this occasion, purchasing for
himself or Smith. The defendant had, however, on previous occasions,
purchased stone of the plaintiff for Smith. The auctioneer knew nothing
either of Smith or the defendant, or of their relation to each other, and
a few days after the sale sent in the account to the defendant. The
ha}' and corn were, without any direction or interference of the defend-
ant, fetched away in carts belonging to Smith, and were consumed by
Smith's horses before his death, which occurred about ten days after the
sale. The conditions of sale (so far as material) were as follows : —

1. That the highest of two or more bidders shall be the purchaser,
and in case of a dispute between the bidders, the lot shall be put up
again for sale if the auctioneer shall think proper so to do ; otherwise
he is to determine which of the parties is to be the purchaser.

2. That each lot shall be considered as delivered on being knocked
down, and on the highest bidder complying with the conditions next
hereafter mentioned.

3. That the highest bidder shall, on being declared such, name a
person present, to be approved of b}' the auctioneer, or his clerk, to
join him or her as a partner for the lots sold, and that such person,
on his or her consenting to become such partner, shall be considered
jointl}' and severalh* answerable for the payment of the purchase-
money with such highest bidder. And in case an}- such highest bidder
shall neglect or refuse to procure the consent of an}' person or persons,
to be approved of as aforesaid, the lot may be resold, and the first
purchaser charged with an}' expenses and loss of such resale (if any)
or he or she may be treated as a ready-money purchaser, and liable to
be proceeded against for the recovery of the same, or the sale may be
declared void, at the option of the auctioneer ; but in case any such
highest bidder shall procure the consent of any person, or persons, to
be approved of as aforesaid, the same shall be considered under the
conditions equivalent to having signed the sale book.

4. (By this condition the money for purchases at the sale was pay-
able on the 25th January, 1858.)

The learned judge left it to the jury to say whether the defendant
authorized the auctioneer to sign his name as the purchaser of the
goods, telling them that, if they were of that opinion, the defendant
was liable for the price. If, however, they should think that, although
the defendant entered into a binding contract, the evidence showed
that the goods were delivered, not to the defendant, but to some one
else, he was not liable. The jury having found a verdict for the
defendant,

SECT. III.] WILLIAMSON V. BARTON. 537

ITnowles, in last Michaelmas Term, obtained a rule nisi for a new
trial on the ground of misdirection, in leaving to the jury the question
whether the defendant had entered into the contract, the evidence
showing that he had ; also on the ground that it was immaterial
whether the defendant intended to act as agent or principal ; also on
the ground that it was immaterial whether the plaintiff knew that the
defendant was bidding as agent or not ; also on the ground that there
was no evidence to support the learned judge's charge touching the
delivery, as there was no evidence of any contract other than that with
Barton ; also on the ground that the verdict was against evidence.

Huddlest07i and Garth showed cause. ^

Knowles and Milucard^ in support of the rule.^

Wilde, B.^ On these facts, I am of opinion the defendant made
himself liable. It it well settled that an agent is responsible, though
known by the other party to be an agent, if bj- the terms of the con-
tract, he makes himself the contracting party: see Higgins v. Senior,
8 M. & W. 834. And the late cases arising on charter-parties have
illustrated this principle forcibly. Lennard v. Robinson, 5 E. & B. 125.
Parker v. Winlow, 7 E. & B. 942.

Supposing, then, it was competent to the jury, on the above evidence,
to find that the plaintiff actually knew that the defendant was buying
for Smith, the question would still remain, whether the defendant, by
what he did, made himself the contracting party.

It is clear to ni}' mind that he did. He communicated to no one
that he was acting as agent \ he did nothing b}' word or act to indicate
that he was not contracting himself, and for himself. There is not a

1 The judges interrupted this argument thus : Pollock, C. B. " No doubt, the
defendant might have been dismissed by Smith from his service shortly before the
auction, but still, looking at all the circumstances, there was evidence from which
the jury might infer that the defendant was acting for Smith, and that the plaintiff
knew it." The same judge : " If a person buys goods in his own name, he is liable
to pay for them, although he in fact acts as agent for another." Wilde, B. " The
goods were knocked down to the defendant, and he was asked his name. He replied
' Barton.' Is not that evidence of an authority to the auctioneer to sign his name as
purchaser ? " Pollock, C. B. " The que.stion is whether, the plaintiff being present,
and well knowing that the defendant was the servant of Smith, it was necessary for
the defendant to say, ' I was bidding for Smith.' " — Ed.

2 The judges interrupted this argument thus : Wilde, B. " Suppose a person goes
into a shop and orders some cloth to be sent to a particular place ; upon which the
shopman asks him his name, and he gives it ; prima facie he makes the contract on his
own behalf ; but suppose he was foreman to a tailor, and the shopman knew that fact,
might not the jury find that the order was given on behalf of the tailor ? " The same
judge : " If the contract was with the defendant, it is immaterial whether or no he
was an agent, but in ascertaining whether he did contract, it is important to inquire
whether he was an agent." Pollock, C. B., in answer to a contention that the plain-
tiff might have objected to the admissibility of any evidence of agency for the purpose
of varying the contract : " I think not. I agree with my brother Wilde that in
investigating whether the defendant made the contract on his own behalf, evidence of
the relation between him and Smith is important." — Ed.

' After stating the case. — Ed.

538 WILLIAMSON V. BARTON. [CIIAP. III.

single incident, however slight, in his conduct at the sale, to distin-
guish it from that of a man who was buying for liimself. It was the
ordinary conduct in all respects of a buyer at an auction.

There was nothing, tlierefore, on which the jury could properh' be
invited to find that he did not make himself a contracting party. It is
not too much to ask or expect of a man who walks into an auction
room and becomes a purchaser, that when he gives his own name he
should protect himself from being taken as tlie conti'acting partj-.

It is said to be a hard case on the defendant. But it is dangerous
and unwise to throw doubts, even in a hard case, on the proper con-
clusions to be drawn from the ordinary events of an auction room.
Sales by auction are far too common, and the effect of bidding and
giving a name to the auctioneer as purchaser far too widelj' understood
by the community, to admit of such doubts being sanctioned.

Without minutely adverting to the way in which the case was left
to the jury, it is enough to say, that on these facts the judge ought,
in my opinion, to have told the jury, that if tliey believed the plaintiff's
evidence, though they equally believed the defendant's evidence, the
defendant had made himself a contracting party at the sale, and that,
having done so, he was liable though in fact he was onl}- agent.

The jury having been left to find the contrary-, the verdict ought in
m}' judgment, to be set aside, and a new trial granted.

Bhamwell, B. I think this rule sliould be discharged.

No doubt a person who is acting for another, and known by him
with whom he deals to be so acting, ma}^ and will be personall}' liable if
he contracts as a principal, and tliat whether he contracts by word of
mouth or in writing. The difference is, that if the contract is b}- word
of mouth, it is not possible to sa}', from the agent using the words
" I " and "me" that he means himself personally; whereas, if the
contract is in writing, signed in his own name, and speaking of him-
self as contracting, the natural meaning of the words is, that he binds
himself personally, and he is taken to do so ; and then the other party
is bound to him. Therefore, in this case, had the defendant himself
signed the conditions of sale as a purchaser, it may be conceded that
he would have been liable ; but the plaintiff would also have been
bound to him. But he did not sign the conditions of sale himself;
they were signed b}' the auctioneer's clerk and unless the auctioneer's
clerk had authority from him so to sign his name, the defendant is not
bound b}' that signature. The question, therefore, was a proper one
to leave to the jury, unless the admitted facts showed that the auction-
eer's clerk had such authority. If they did, such question ought not to
have been left to them, and there was a miscarriage. Now, the ad-
mitted facts relied on by the plaintiff were, that the defendant attended
the sale, that he bid, that he was asked liis name, gave it, and it was
written down ; and I agree that in ordinar}' cases a man so acting
gives authority to the auctioneer to sign his name as a purchaser ;
and if the case stopped there the defendant would be bound. But he

SECT. III.] WILLIAMSON V. BAKTON. 539

may show other facts wliich, taken in connection with those first named,
alter their effect. tSuppose, for instance, the defendant had said before
he bid, " All my biddings are as agent for Smith, and what you knock
down to me you must put down to him ; " surely the auctioneer
would have had no authority afterwards to write his name down, not
even though he forgot what had taken place, and asked his name, and
was told. So, if the defendant had said the same to the plaintiff,
''Your agent, the auctioneer, is selling for you; I am buying for
Smith ; what I bid for must be put down to him," the same result
would follow. The defendant did not say so here in words, but to my
mind there is evidence to go to the jury which they may hold equiva-
lent to his having done so. The plaintiff knew the defendant was
Smith's foreman ; his answer on that point is a discreditable shuffle.
He knew the defendant was buying for Smith ; he himself was close to
the auctioneer ; the goods were delivered to Smith's carts, not upon
any order of the defendant, nor after any communication with him, as
appears on the evidence. If the defendant was bound to the plahitiff,
so was the plaintiff to the defendant. Can it be said he was in any
way ? Suppose there had been no writing (and there having been a
delivery, none was necessary), would not the proper question have
been left to the jury ? If not, what difference does the writing make?
Suppose the defendant, on being asked his name, had said, " Barton,
Smitli's foreman." But if the defendant was concluded by the writing,
and a party to the contract, surel}- he is discharged by the plaintiff
delivering the goods to the principal without requiring payment. The
conditions of sale were misunderstood by the plaintiff's counsel. The
purchaser not having given securit}-, and the seller not electing to put
up the lot again, the transaction became a ready-mone}' one ; the stip-
ulation that the goods should be considered delivered does not apply,
and the seller had a lien for the purchase money. Yet he thinks fit
to deliver the goods to the principal without requiring payment, and
thereby, as I think, discharges the agent, if ever he was bound.

But it was said that the other question was improperly left to the
jur}'. I think not. It was a right question, unless the matter was
concluded by the evidence. If the goods were delivered to Smith, not
upon the contract with Barton, the action for goods sold and delivered
could not be maintained. Now, the evidence was that they were de-
livered to Smith's carts. Hov; or why, it did not appear. It was for
the plaintiff to make out that that was a deliver}' to Barton. Thers
was some other loose and untrustworth}' evidence of Barton's not
denying his liabilit}', which precluded my withdrawing the case from
the jury ; but still it was for them to say if the}' were satisfied that the
plaintiff had proved that delivery ; and they might well say they were
not satisfied, not only because it was not shown how the goods came
to be d(4ivered to Smith's carts, but also for the considerations I have
adverted to relating to the first question.

I cannot help adding, it certainly will be strange if the defendant is

540 WORTHINGTON V. COWLES. [CHAP. III.

liable to this action. He did not think he was buying, nor making
himself liable ; nor did the plaintiff ; nor did he think he was selling
to the defendant. The auctioneer, who did not know the truth, may
have thought so ; yet the defendant is to be made liable to the plaintiff
contrary to the belief and intention of both of them.

Channell, B. I concur in the judgment of my brother Wilde, and
in the reasons on which it is founded.

Pollock, C. B. In this case I am of opinion that the rule ought to
be discharged. It is contended for the plaintiff that the defendant is
liable, because he attended at an auction of the plaintifTs goods, con-
ducted by the auctioneer as agent for the plaintiff, and, the lot being
knocked down to him, he was asked what his name was, which he gave,
and which the auctioneer wrote down as the name of the buyer, making
a written contract. I think, if the plaintiff was present, and perfectly
well knew that the defendant, from his position in life, could not be,
and therefore was not bidding for himself, and the defendant had no
intention of bidding or buying for himself, but gave his name because
he was asked what his name was, whatever may have been the im-
pression or intention of the auctioneer, no contract was, in point of
fact, made between the plaintiff and the defendant. The defendant
did not mean to buy, and the plaintiff was aware of that. The plain-
tiff also did not mean to sell to the defendant, but to his principal onl}-.
I think there were circumstances from which the jur3- might infer that
such was the real state of things, and if the jury had an}' evidence, I
am not disposed to disturb their verdict.

The Court being equally divided in opinion the rule dropped.

WORTHINGTON v. COWLES and another.
Supreme Judicial Court of Massachusetts. 1873.

[112 Mass. 30.]

Contract to recover back money paid b}' the plaintiff to the defend-
ants for a promissory note signed by one Hanson, the indorsement
upon which was forged.

Trial in the Superior Court, before Lord, J., who, after a verdict for
the plaintiff, allowed the defendants' bill of exceptions, from which it
appeared that the defendants were note brokers, and were known as
such by the plaintiff; that they were acting as brokers for Hanson in
selling the note, and that they paid him the purchase-money, less a
commission, before the forgery was discovered. The defendants testi-
fied that, during the negotiations which resulted in the plaintiff's pur-
chase of the note they informed him that they were selling the note as
brokers for Hanson, who had employed them to sell it. There was

SECT. III.] WOETHINGTON V. COWLES. 541

also other testimony- tending to show that tlie plaintiff knew or had
reasonable cause to know these facts. The plaintiff denied any such
information or knowledge, and offered evidence tending to show that
there was no disclosure of the principal, and nothing to lead him to
suppose that the defendants were not themselves the owners of the
note.

The defendants asked the court to rule that if the defendants were in
fact agents for Hanson, and disclosed their agency to the plaintiff, or
the plaintiff knew it, or had reasonable cause to know it, the defendants
would not be liable. But the court refused so to rule ; and ruled that
the question was, from whom did the plaintiff understand that he was
buying the note, — from the brokers or from Hanson? that, upon the
uncontroverted facts, prima facie, the transaction was with the de-
fendants, and to relieve them from liability there must have occurred
such a state of facts that the plaintiff understood, or ought to have
understood as a man of reasonable intelligence, that he was dealing
with Hanson.

G. Putnam, Jr., & II. W. Putnam, for the defendants.

W. A. Field, for the plaintiff.

Morton, J. This is an action of contract upon the implied warranty
of the genuineness of the signature to a note sold by the defendants to
the plaintiff. The plaintiff claimed that in the purchase of the note he
dealt solely with the defendants, and upon their credit. The defend-
ants claimed that they were acting as agents of Han.son in the transac-
tion, and that their principal was disclosed to the plaintiff. Upon these
points the evidence was conflicting. The defendants asked the court
to rule ''that if the defendants were in fact agents for Hanson, and
disclosed their agency to the plaintiff, or the plaintiff knew it, or had
reasonable cause to know it, the defendants would not be liable."

Considered as an abstract proposition of law, this is too broad. It
omits the necessar}' element that, in the dealing or ti'ansaction in ques-
tion, the}' were acting as such agents. It may be true that the
defendants were agents of Hanson, and known to be such b}' the
plaintiff, and yet if, in the purchase of this note, it was understood b}'
the parties that the plaintiff was dealing with and upon the credit of
the defendants, the}- would be liable. An agent may deal so as to bind
himself personally ; it is always a question of the intention and under-
standing of the parties. The presiding judge properly refused to give
the instructions in the form requested by the defendants. Insteac*
thereof, he ruled in substance that the question was, from whom did
the plaintiff understand that he was buying the note, — from the brokers
or from Hanson ? and that if such a state of facts occurred, that the
plaintiff understood, or ought to have understood as a man of reason-
able intelligence, that he was dealing with Hanson, the defendants
would not be liable.

These instructions were correct, as applied to the facts of the case.
The plaintiff dealt with the defendants. His evidence tended to show

542 ELBINGER ACTIEN-GESELLSCHAFT l\ CLAYE. [CHAP. III.

that he contracted with them as principals. To meet this prima facie
case, the defendants undertook to show that in this transaction they
were deaUng as agents of a disclosed principal. Unless from their dis-
closures or other sources the plaintiff understood, or ought as a reason-
able man to have understood, that he was dealing with Hanson, he had
a riglit to assume that he was dealing with the defendants as piincipals.
The instructions given were to this effect, and were as favorable to the
defendants as the instructions requested, with the addition of the neces-
sary qualification that the defendants were in this transaction dealing
as the agents of Hanson. Wilder v. Cowles, 100 Mass. 487 ; Merriam
V. Wolcott, 3 Allen, 258. Exceptions overruled.^

DIE ELBINGER ACTIEN-GESELLSCHAFT v. CLA^E.

Queen's Bench. 1873.

[L. R. 8 Q. B. 313.]

Declaration, that it was mutually agreed between the plaintiffs and
the defendant that defendant should sell and deliver to plaintiffs, and
plaintiffs should buy and accept from defendant, certain goods, to wit,
150 sets of Russian wheels and axles, upon the terms, amongst others,
that the said goods should be delivered at Hull free on board during
February or March, 1872. Allegations of performance of all conditions
precedent ; breach, non-delivery, alleging special damage.

Plea, inter alia, that it was not mutually agreed between the plaintiffs
and defendant, as alleged ; issue joined.

At the trial before Mellor, J., at the sittings in London after
Hilary Term, it appeared that the plaintiffs are a company established
in Elbing, in Prussia, for tlie purpose of manufacturing railway rolling
stock ; and in December, 1871, they entered into an agreement with a
Russian railway company to supply 1000 railway wagons ; and in order
to carry out this contract Mr. Hambruck, one of the managing directors
of the plaintiffs' company, came to this country, and through the agency
of Messrs. Seebeck, Wolff, and Co., commission merchants in London,
proceeded to negotiate some contracts with English ironfounders.
Amongst others, Messrs. Seebeck & Co. communicated with the de-
fendant, an ironfounder at Long Eaton; and, in consequence, the
defendant came to London, and on the 29th of January, 1872, had an
interview with Mr. Seebeck, one of the partners, and Mr. Hambruck,
at Messrs. Seebeck &. Co.'s office. The defendant was informed of the
company's contract, and was asked to make tenders for wheels, &c.,
Mr. Hambruck producing the drawings, but Mr. Seebeck being the
chief interlocutor. The defendant then signed in a diary kept by Mr,
Seebeck certain memoranda, of which the following onl}- is material :

1 Ace. : Seaber v. Hawkes, 5 Moo. & Payne, 549 (1831). — Ed.

SECT. III.] ELBINGER ACTIEN-GESELLSCHAFT V. CLAYE. 543

" Mr. Claye also offers to supply 150 sets of Russian wheels and
axles, 5 feet gauge, with iron tires and axles, but cast-iron bosses, to be
delivered during Februar}' and March this year, at the price of £31 per
set of 4 wheels and 2 axles, delivered f. o. b. in Hull, less 2^ per cent
commission, payment in three months bankers' bill (at par), or 1;^ per
cent discount for cash payment, fourteen days after shipment from
Hull. Three 3'ears guarantee.

"This offer to remain open until Saturday, the 3d of February.

" S. J. Claye."

On the 31st of January the defendant wrote to Seebeck, Wolff, & Co.
that he could not proceed with the wheels and axles until he had a
working drawing, and saying, " Please telegraph to 3-our clients to this
effect." And again, on the 1st of February he wrote, "Hoping to have
confirmation of order for the 150 sets to-morrow."

On the 3d of Februar\' Seebeck, Wolff, & Co. telegraphed to defend-
ant, " We confirm order for 150 sets of wheels and axles, Russian pat-
tern, with cast-iron bosses, at your price of £31 less 2i^ and 1;^, delivered
f. o. b. in Hull during February and March this year, with your guar-
antee for the wheels and axles of three years."

On the same day Seebeck, Wolff, & Co. wrote a letter to the defend-
ant as follows : —

" Since we have had the pleasure of seeing your chief at our office,
we have received both your favours of 31 Jan. and 1st inst. , contents
of which we noted, and communicated to our friend the railwa3-carriage
builder abroad.

" Although we have received in the mean time lower quotations of
nearly £2 per set for the 150 sets of wheels and axles of the Russian
pattern, we confirmed 3'ou to-day this order b}' telegram, as we are
desirous of commencing business with you, and believe that you will
turn out first-rate quality and keep strictl}' to your engagement as to
deliver}'. We consequent]}- telegraphed to you this morning as fol-
lows : " [The telegram was then repeated.] " Enclosed we hand you
a copy of these Russian wheels and axles, but with wrought-iron bosses ;
we hope, however, it will be sufficient for 3'our purpose, and have in the
mean time asked our friend to send us the correct drawing."

On the 3d of Februar}- the defendant wrote to Messrs. Seebeck,
Wolff, & Co. : " I reph- to your telegram of this day, for which I thank
3'ou, confirming personal order for 150 sets of wheels, &c."

The invoices of the wheels and axles, when delivered, were made out
to Seebeck, Wolff, & Co., and they paid the defendant for them. But
the defendant failed in delivering most of the sets of wheels and axles
within the time limited, upon which this action was brought.

It was objected, inter alia, on behalf of the defendant, that the de-
fendant's contract was not with the plaintiffs, but with Messrs. Seebeck,
Wolff, & Co.

544 ELBINGER ACTIEN-GESELLSCHAFT T. CLAYE. [CHAP. III.

The learned judge left it to the jury to say whether the contract
was made by the defendant with the plaintiffs, or with Messrs.
Seebeck, Wolff, & Co.

The jury found for the defendant.

£utt, Q. C, moved for a new trial, on the ground of misdirection,
and that the verdict was against the weight of evidence.

Blackbukn, J. I do not entertain the slightest doubt that there is
no ground whatever for granting a rule in this case. The facts appear
to be that a foreign compau}-, being desirous of having a quantity
of goods supplied in England, in the ordinary course of trade, got
Seebeck & Co., commission merchants resident in London, to make the
contract with Mr. Claye. At the time that contract was made, Mr.
Claye was well aware that the goods were ordered for the foreign com-
pany, but the offer which was afterwards accepted by Seebeck & Co.
was made bj' him in writing in the book of Seebeck & Co. without any
mention of the foreign company ; and even if it had not been in writing,
the ordinary course of trade would have been that the contract would
be with Seebeck & Co., who would pledge the credit of their firm. I
quite agree that a man ma}', as agent, make a contract upon such terms
as not only to bind himself but also so as to bind the principal ; in
other words, so that the principal shall be party to the contract, and
may then either sue or be sued. I must say I think that the two things
are correlative. A man cannot make a contract in such a way as to
take the benefit, unless also he take the responsibility of it. But
although such a contract ma}' be where the principals are English ; yet
where a foreigner has instructed English merchants to act for him, I
take it that the usage of trade, established for man}' j'ears, has been
that it is understood that the foreign constituent has not authorized the
merchants to pledge his credit to the contract, to establish privity
between him and the home supplier. On the other Ltand, the home
supplier, knowing that to be the usage, unless there is something in
the bargain showing the intention to be otherwise, does not trust the
foreigner, and so does not make the foreigner responsible to him, and
does not make himself responsible to the foreigner. The dicta which I
referred to of Chief Justices Sir J. Mansfield (Addison v. Gandasequi,
4 Taunt, at p. 580, Paterson v. Gandasequi, 15 East, 62) and Lord
Tenterden (Thomson v. Davenport, 9 B. & C. at pp. 87, 89) and of
Bayley, J. {ib.) are to this effect ; and the passage which I read from
the judgment in Armstrong v. Stokes (L. R. 7 Q. B. at p. 605) ex-
pressly enunciates this proposition ; and I think it is quite plain that in
the present case tlie presumption was that Mr. Seebeck was not acting
under authority from the Elbinger Company to pledge their credit to
Claye, and that Claj'e did not trust the foreigners at all, but Seebeck &
Co. only.

There might, no doubt, be a contract made in a different way between
the two parties bargaining together, and there might be evidence of
that in the present case. My Brother Mellor left the question to the

SECT. III.] COVELL V. HART. 545

jur^' : Was the contract made with the foreigner or not? But I cannot
see an}' evidence on which the jury could find that in the affirmative :
m}' onl}' doubt is whether he ought not to have directed the jury that
there was no evidence on which to find for the plaintiffs against the
defendant ; but he left the question for the jurv, and the jury found for
the defendant ; and I should have felt greatly surprised if they had
found otherwise. I do not, therefore, see the slightest reason to say
that there was any misdirection, or that the verdict was contrary to the
weight of evidence.

Lush, J. I quite agree with Mr. Butt that an agent may make a
contract by which he may become personally liable, while he still makes
it on behalf of his principal, so that the other party has a choice to go
against either the one or the other ; that is, that the contract may be
such as to make the principal as well as the agent himself a party to
the contract. But if the principal be made a party to the contract, he
must be both able to sue and liable to be sued ; for, here, I also agree
with my Brother Blackburn that he cannot be a part}' so as to be able
to sue, and yet not a party so as to be liable on it. The evidence here
excludes the one altogether, because, as I understand the evidence, the
foreign principal was known to the defendant, and, in fact, was present
at the time of the offer; and the jury have said in substance — and I
think there is evidence to justify that conclusion — that what the de-
fendant said in effect was, I know the goods are not for you, Seebeck
& Co., but I will not deal with your foreign principal, but only with
you. That being so, the foreigner is excluded both for the purpose of
liability and for the purpose of suing and taking the benefit of the
contract.

Mellor, J. I am entirely of the same opinion.

Hule refused.^

COVELL, Respondent, v. HART and another, Appellants.
Supreme Court of New York, Third Department. 1878.

[14 Run, 252.]

Appeal from a judgment in favor of the plaintiff, entered upon the
verdict of a jury, and from an order denying a motion for a new trial
made upon a case and exceptions.

The action was brought to recover the value of services rendered by
the plaintiff in examining a set of books, in pursuance of directions
received from the defendants, a firm of attorneys, and for which he
sought to hold them liable in this action.

1 On a subsequent day, W. Williams, Q. C, applied on behalf of the plaintiffs for

leave to appeal, but the Court, having no doubt in the matter, refused leave Rep

546 COVELL V. HART. [CHAP. III.

E. F. BabcocJc, for the appellants.

Turner^ Dexter S Van Duzer^ for the respondent.

BocKES, J. The defendants were attorneys and counsellors of this
court, and formed a professional partnership the second time in
November, 1873. Tlieir former partnership, which terminated several
years previously, need not be here noticed. During several years prior
to November, 1873, the defendant, Hart, had in charge, for one of the
parties, an action involving the settlement of an extinct partnership.
The management of this action remained with Hart after his profes-
sional connection with McGuire in 1873. In order to prepare the case
for trial, it became necessary to have an examination of the partnership
books. The plaintiff, who was an experienced bookkeeper, was era-
ployed, as he alleged, b}' the defendants, then partners, to perform this
service ; and he was engaged in such service for a considerable time.
The action is brought to recover for those services.

The defendants denied the alleged emplo3ment, and especially con-
troverted an}' joint liability ; and also insisted that the services were
performed for their client as principal debtor ; hence, that they were
not, nor was either of them, liable in this action. The questions raised
on this appeal are presented by the various exceptions to tlie rulings of
the learned judge at the trial, on submitting the case to the jur}'. Of
those exceptions, but two need to be here considered.

It must be assumed that the jury found a joint employment by the
defendants of the plaintiff to perform the services. Still, in this view
of the case, it was an employment by known agents for services to be
performed for the benefit of a principal, whose name and relation to
the subject-matter of the service were known to the plaintiff at the time
of the employment. It is laid down as a general rule that, where a
person is known to act as a mere agent, and the principal is known,
and there is no express agreement b}' the agent for a personal liabilitj',
and there are no circumstances from which it ma}' properly be inferred
that the credit is given to him, the agent is not personally liable, though
he be the person who makes the contract. So, an agent is not liable
when he keeps within the limits of his authorit}', and discloses the name
of his principal at the time of making the contract. This principle of
law is applicable to the case of attorney and client. Judson v. Gra}',
11 N. Y. 408, 411, and cases there cited. The rule is there quoted
with approval, that, in conducting the suit, so far as thii'd persons are
concerned, the attorney is simply the agent of his client.

This rule may not be applicable to services performed for an attorney
by a public officer, who is bound by law to act in the matter entrusted
to him by an attorne}-. Judson v. Gray, supra ; Campbell v. Cothran,
66 N. Y. 279. The case in hand is one, however, of voluntary' engage-
ment b}' the plaintiff, hence the ordinarj- rule applicable to principal
and agent obtains. The services contracted for were not such as per-
tained to the duties of an attorney in his professional character. Yet
they were such as he might cause to be performed for the benefit of his

SECT. III.] COVELL t. HART. 547

client. He might bind his client to any service necessary' to the prep-
aration of the case for trial. Here, however, this latter point is of little
importance, as enough appeared in the evidence to warrant an approval
of the engagement by the client. In this case, then, the plaintiff could
not recover against the defendants, inasmuch as the former knew of
their agency and that they were acting for a well-known principal,
unless they contracted for themselves and gave the plaintiff their per-
sonal credit. This could only be established against the defendants
under the undisputed facts in the case, by an express promise on their
part to be themselves personally liable, on proof of facts and circum-
stances equivalent to an express promise by them. We are now brought
to the consideration of a request for an instruction to the jury on this
branch of the case, which instruction was refused. The learned judge
was requested to charge the jury in substance and effect, that if the
defendants employed the plaintiff to perform the service under authorit}'
from their client, and the plaintiff had knowledge that the employment
was for their client, then the plaintiff could not recover against them,
but must take his remedy against their client. This is not the exact
language of the request, but embodies its spirit and fair meaning. An
employment for their client must be understood to mean an employ-
ment on his behalf and on his responsibilit}'. If such was the em-
ployment it was not on the personal liability of the defendants. The
defendants were entitled to have this instruction given as requested, as
the}- were also entitled to the instruction asked for, that if the defend-
ants employed the plaintiff for and on behalf of their client to do the
work as in their judgment necessary' in their client's suit, then the client
was liable to the plaintiff therefor, although the plaintiff, when he began
the work, did not know who the client was or that the work was for
him. The proposition was sound in law ; and, under the evidence in
this case, being contradictory on almost ever}' point connected with the
subject of the plaintiffs employment, it was not so foreign to the ques-
tion to be considered by the jury as to be absolutely immaterial. It is
true these instructions were refused save as the subject had been
alread}' charged upon. But on looking into the general charge it will
be seen that the ideas intended to be put forth in the request were not
specifically advanced.

For the reasons above suggested the judgment and order appealed
from must be reversed.

Learned, P. J., and Osborn, J., concurred.

Judgtnent and order reversed ; new trial granted^ costi
to abide event.

548 BATEMAN V. PHILLIPS. fCHAP. IV.

CHAPTER IV.
PARTIES TO WRITINGS.*

SECTION I.

Instruments neither negotiable nor Sealed,

ALFORD V. EGLISFIELD.
Common Pleas. 1564.

{Dyer, 230 b.]

Note, by the opinion of the Justices of the Bench, that if a purvej'or,
factor, or servant, make a contract for his sovereign, or master, for
fat beasts, for a certain sura of mone^-, and make a bill of receipt for
the beasts to the use and behoof of the sovereign or master, and besides,
by the same bill bind himself to payment at a da3' certain, but do not
seal the bill, this is not such a contract as shall charge the purveyor or
servant by writ of debt counting upon a buying, but an action on the
case will serve on this occasion upon an assumpsit.

BATEMAN v. PHILLIPS.
King's Bench. 1812.

[15 East, 272.]

The plaintiff counted upon a promise made to him by the defendant
to paj' the debt of David Williams, if he did not pay it, in considera-
tion of the plaintiff's forbearing to sue Williams for a week : and
having recovered a verdict before Wood, B., at Hereford.

Peake now moved to set it aside, and enter a nonsuit, upon the
ground that there was no sufficient evidence of the defendant's promise
in writing within the 4th section of the statute of frauds. He stated

* And see Chapter V.

SECT. I.] BATEMAN V. PHILLIPS, 549

the facts to be, that the plaintiff" was about to sue "Williams for a debt
of £80, and had employed Mr. Gwyn his attorney for that purpose,
when the defendant addressed the following letter to Mr. Gwyn, dated
Monday. " Sir, the bearer David Williams has a sum of money to
receive from a client of mine some daj' next week, and I trust you will
give him indulgence till that day, when I undertake to see you paid."
(Signed by the defendant.) Mr. Gwyn was called as a witness at the
trial to prove that this letter was addressed to him as the attorney for
the plaintiff ; that it was brought to him b}' Williams ; and the amount
of the debt due from Williams to the plaintiff was also proved. It was
now observed that the name of the plaintiff was not mentioned in the
letter, nor the amount of the debt ; and that if this could be received
in evidence to charge the defendant within the statute, it was open to
the plaintiff's attorney by parol evidence to have applied the letter to
an}' other person, or for any other sum, in direct contravention of the
statute, which meant to exclude all parol evidence of an agreement to
pay the del)t of another, by requiring the writing to contain the agree-
ment, that is, the whole agreement. . . . That Gwyn was the attorne}'
for the plaintiff depends entirely upon his parol evidence : he might
have applied the letter to anv client of his to whom Williams was in-
debted. [Bayley, J. If you had shown that Williams was indebted
at the time to another client of Gwyn's, that might have made a
doubt] ...

Lord Ellenborough, C. J. The parol evidence received did not go
to extend the terms of the agreement in writing : it only went to show-
that the letter was addressed to him as the attorney for the plaintiff*,
and not as the principal and creditor of Williams. Would it be con-
tended to be necessary to state the ver}' sum to be paid where it ap-
peared that the defendant meant to say to the plaintiflE", whatever sum
Williams owes you I engage to pa}' it if you will not sue him ? If the
defendant did not know the exact amount of the debt, might he not
contract to pay it in those terms? The parol evidence does not enlarge
any term of the letter : and I think it would be holding the statute too
strictly to say that this was not sufficient evidence of the contract.

Le Blanc, J. If the doctrine were to be pushed the length now
contended for, we must say that a man could not contract in writing
with another to pay him for all the goods with which he had furnished
a third person in the course of the antecedent month. Or suppose the
writing had only contained a promise to pay the debt of Williams;
would not that be sufficient without mentioning the amount?

Per Ccriam, HuJe refused.

550 EVANS V. EVANS. [CHAP. IV.

JOHN EVANS AND JAMES THOMAS v. DAVID EVANS.
King's Bench. 1834.

[3 Ad. S,- E. 132.]

Debt. The declai-ation stated the defendant to be indebted to the
plaintiffs in the sum of £85 "for the use and occupation of certain
lands witli the appurtenances by the defendant at his special instance
and request, and by the sufferance and permission of the said plaintiffs
for a long time before then elapsed, had held, used, occupied, and
enjoyed ; " also in £85 for the use and occupation of lands with the
appurtenances of the said plaintiffs, by the said defendant at his special,
etc., and by the sufferance and permission of the said plaintiffs, for a
long time, etc. (as before) ; also in other sums for monies lent, paid,
had, and received, and on an account stated. Plea, the general issue.
At the trial before Gurney, B., at the Cardigan Spring Assizes, 1834,
the case for the plaintiffs was as follows : David Jones, being tenant of
the lands in question, and being indebted both to the plaintiffs and
to the defendant, made an arrangement with the plaintiffs, who were
auctioneers in partnership, that they should let the lands l)y auction
upon the conditions after-mentioned, should pay Jones's landlord the
rent then coming due and the rent for the next year, should also pa}' the
rates and other charges on the farm, and, after such payments, should
retain to their own use the overplus of the rent at which the lands might
be let, and should have a certain allowance for collecting. The lands
were let by auction. The conditions, which were read at the letting,
were in these words : —

" Fields let by auction at Veniog, in the parish of, &c., on the 16th
day of October, 1832 (being the farm of Veniog), subject to the follow-
ing conditions : —

" By Messrs. Evans and Thomas, auctioneers.

" First, the fields are let from to-day till Michaelmas next, free from
all rates (tithes excepted).

" Secondly, the rent is to be paid into the hands of John Evans or
James Thomas, auctioneers, or to their order, at two moieties or pay-
ments, that is to sa}', one half on the 10th day of July next, and the
remaining half on the 29th day of September following.
"Approved of the above conditions.

"By me, David Jones."

After which followed a description of the lots. The defendant took
the lands and occupied them. The plaintiffs received rent from him in
respect of them, and paid it over to the landlord. At the close of the
plaintiffs' case the defendant's counsel contended that there must be a
nonsuit, for that the plaintiffs, who let as auctioneers, could not main-
tain an action for use and occupation ; and Jarvis v. Chappie, 2 Chit.

SECT, ].] EVANS V. EVANS. 551

Rep. 387, was cited. The learned judge overruled the objection, saying
that in the present case there was an express contract between the
plaintiffs and the defendant. E^vidence was then given on the defend-
ant's part, to show that no such arrangement existed between Jones
and the plaintiffs as above stated ; that they let the premises and
received the rents merely as his agents, and that the defendant took
the lands upon an understanding with Jones (previous to his supposed
arrangement with the plaintiffs), that he should make a reduction from
the rent in respect of the sum which he owed the defendant. The
learned judge left it to the jury whether the plaintiffs had disposed of
the lands as agents for Jones, or on their own behalf as creditors, and
to reimburse themselves for money which they had advanced ; adding
that, in the latter case, the defendant could not, after having heard
the conditions of sale read, and agreed to pa}- the rent to the plaintiffs,
avail himself of an alleged private arrangement between himself and
Jones to defeat the plaintiffs' claim ; and that, even if such arrangement
existed, it made no difference, as the defendant had agreed to pay the
plaintiffs. The jury found for the plaintiffs, and said thej' thought that
the plaintiffs had let to the defendant under the agreement between
them and David Jones, on their own account as creditors, and not as
agents. In the ensuing term John Evans obtained a rule nisi for a
nonsuit to be entered upon the objection above stated, or for a new
trial.

Maule now showed cause.

Sir W. W. Follett, with whom was Ecans, contra.

Lord Denman, C. J. If it clearly appeared that the defendant was
aware of such an arrangement as has been suggested, between the
plaintiffs and David Jones, that might var}- the case. But it is manifest
that the defendant took under the conditions of sale. Now the condi-
tions merel}' import that fields are to be let by auction b}- the plaintiffs,
auctioneers, and it cannot be doubted that the defendant knew that
David Jones was owner. Then come the words, ''The rent is to be
paid into the hands of John Evans or James Thomas, auctioneers, or to
their order,"' in certain instalments; and then follows, •' Approved of
the above conditions, b}' me, David Jones." Looking at these condi-
tions, which in fact constituted the agreement, there is no proof whatever
that the defendant considered that he should liold from the plaintiffs.
On the contrary, the signature of David Jones showed that he was not
to hold from them.

LiTTLEDALE, J. I am of the same opinion. The words, " b}' Messrs.
Evans and Thomas, auctioneers," show that the}' represented themselves
as the mouthpiece of the person realh' letting. Then, "The rent is to
be paid into the hands of John Evans or James Thomas, auctioneers,
or their order," and at the end is added, " Approved of the above condi-
tions, b}' me, David Jones." It was known, therefore, that he was the
owner ; and the meaning was, " I, David Jones, authorize j'ou to let."
That is the only authority given. It is true that he goes on to say,

552 JONES V. LITTLEDALE. [CHAP. IV.

" Pay the rent into the hands of John Evans or James Thomas," and
payment to them would have been a discharge. But tbey are merely
agents. The lessor is David Jones: he is therefore the only person
to sue.

Patteson, J. The question here does not turn upon the objection
stated as a ground of nonsuit. There must be a new trial on the ques-
tion of fact, not on any point of law. The question of fact is, by whose
permission did the occupation take place, and by whom was the contract
made? That is in general a matter to go to the jury ; but if the ques-
tion depend upon the construction to be put on a document which is in
evidence, then it rests with the Court. Here the conditions of sale
constitute the only document, and upon that I can see no doubt. If
the plaintiffs let for themselves, why is David Jones's name added?
The plaintiffs would in that case have been the persons to sign. The
document does not say b}' whom the premises are let. It is true that
the rent is to be paid into the hands of "Messrs. Evans and Thomas,
auctioneers ; " but this amounts onl}' to an authority given by Jones
to pa3- into their hands ; indeed it is more than authority' ; it is an
express direction. This was not put to the jur^- b}' the learned judge.
He has, therefore, not explained to them the proper construction of
the document.

Coleridge, J. At first I thought that the fact was properly left to
the jur\-. But as it was to be determined by the construction of a
document, the effect of that document should have been properly
explained to them by the judge. Here the letting was, professedly,
bv the plaintiffs as auctioneers, and Jones signed the conditions.
There may have been an understanding between the plaintiffs and
Jones, that the plaintiffs should pay themselves out of the rents.
But as to the contract of the defendant, there was clearly a misdirection.

Jiule absolute J^or a new trials

JONES V. LITTLEDALE and others.

King's Bench. 1837.

[6 Ad. cj- E. 486. J

Assumpsit for not delivering a quantity of hemp, alleged to have
been bought by the plaintiff of the defendants at the price of £155 14s.
\\d. There was also a count for money had and received, and on an
account stated. The defendants pleaded to the first count, and all but
£52 in the second count, non assiimpsertint ; and as to that £52 a
tender. The particulars of demand claimed £155 14s. \\d.

1 8ee Fisher v. Marsh, 6 B. & S. 411 (1865) ; Woolfe v. Home, 2 Q. B. D. 355
(1877). — Ed.

SECT. I.] JONES V. LITTLEDALE. 553

On the trial before Tatteson, J., at the last Liverpool assizes, it
appeared that the pkiiutiff had (iu 1836), bought, by auction, at the
rooms of the defendants, who were brokers at Liverpool, the hemp in
question, to be paid for at certain times then agreed on: that the de-
fendants afterwards sent an invoice of the goods, headed, —

" Jones,

" Bought of J. and H. Littledale,
" Sixty-four bales of hemp. Payment fourteen days and six months.
Received on account £100, October 31.

" Settled November 26.
" (Signed by defendant's clerk.) "

That the plaintiff, on the 31st of October, paid the defendants £100,
and afterwards, on the 26th of November, the residue, £52 ; and on
the latter day asked for a deliver}' order. An order on Messrs. Coup-
land and Duncan was given him, which on presentation the same day
was refused ; and one of the defendants, being applied to, said that he
would see his attorne}', and procure the delivery ; but the defendants
never did procure the deliver}-. In answer, the defendants offered to
prove that the hemp was advertised in two newspapers, which the
plaintiff was in the habit of seeing, for sale, at the rooms of the de-
fendants, brokers, with a reference to Coupland and Duncan, mer-
chants.^ That it was .sold by auction at the defendants' rooms under
printed conditions of sale, describing the defendants as the seller's
brokers, but not mentioning the name of the seller ; that the defendants
had made advances to Messrs. Coupland and Duncan on these and
other goods ; and that the custom at Liverpool was for brokers, when
they had made advances, to deliver invoices in their own names, in
order to secure the passing of the purchase-mone}' through their hands.
That Messrs. Coupland and Duncan became bankrupts, and that a fiat
issued on the 25th of November.- The learned judge thought that
these facts, if proved, constituted no defence to the action ; and directed
a verdict for the plaintiff.

Cressicell now moved for a rule to show cause why there should not
be a new trial, on the ground of misdirection.

Lord Denman, C. J. On moving to set aside this verdict, the coun-
sel for the defendants argued that the sale b}' auction was the contract,
from which, and the previous advertisement, it was apparent that the
plaintiff knew that the defendants were only agents, and who the prin-
cipals were, and that the learned judge should have left to the jury to
sa}' whether the contract was made with the defendants, or the princi-
pals ; urging also that, if the purchase-monej- had been paid at the
proper time, the plaintiff would have obtained the goods ; and con-
tending that the £100 must be taken as paid to the principals, and

1 The advertisement, after describing tiie oroods, added, " Apply to Coupland and
Dnncan, merchants, or Littledale and Co., brokers." — Rep.
2 It was admitted, on the trial, that the defendants had tendered the £52. — Rep.

554 HIGGINS V. SENIOR. [CHAP. IT.

might be proved under the fiat against them, and that the £;V2 paid
after the fiat had been tendered. And he cited Moore v. Clementson,
2 Camp. 22, to show that the form of the invoice made no difference,
but evidence was admissible to show who was the real contracting
party ; contending that, from the evidence of the facts and the custom,
the invoice had the same effect as if it had stated that the plaintiff
bought of the defendants for Coupland and Duncan, pa3ment to be
made to the defendants.

There is no doubt that evidence is admissible, on behalf of one of
the contracting parties, to show that the other was agent only, though
contracting in his own name, and so to fix the real principal ; but it is
clear that, if the agent contracts in such a form as to make himself
personally responsible, he cannot afterwards, whether his principal
were or were not known at the time of the contract, relieve himself
from that responsibility. In this case there is no contract signed by
the sellers, so as to satisfy the Statute of Frauds, until the invoice, by
which the defendants represent themselves to be the sellers : and we
think that they are conclusi\'ely bound by that representation. Their
object in so representing was, as appeared by the evidence of custom,
to secure the passing of the money through their hands, and to prevent
its being paid to their principals ; but in so doing they have made
themselves responsible ; and we think it impossible to read the invoice
in the sense proposed. Jiule refused.^

HIGGINS V. SENIOR.
Exchequer. 1841.

[8 M. & W. 834.]

Special assumpsit, to recover compensation for the non-delivery of
certain quantities of iron, pursuant to agreement, whereby the defendant
agreed to sell to the plaintiffs, and the plaintiffs, at the request of the
defendant, then agi-eed to buy of and from the defendant a certain
large quantit}' of iron, to wit, &c.

Pleas, first, that the defendant did not promise modo et formd ;
secondly, that the plaintiffs did not agree or promise ryiodo et formd.
Issue thereon.

At the trial before Rolfe, B., at the last Liverpool Assizes, it
appeared that the plaintiffs were iron merchants at Liverpool, and
the defendant was also an iron merchant and iron commission agent,
trading there in the name of John Senior & Co. On the 20th of July,
1840, a person of the name of Mead, who was employed by the plaintiffs
to purchase iron, applied to William Senior, a brother of the defendant

1 Compare Holding v. Elliott, 5 H. & N. 117 (I860). — Ed.

SECT. I.] HIGGINS V. SENIOE. 555

(and who was then acting for him in his absence from home), to know if
he sold for the Varteg Iron Company, and on being answered in the
affirmative, Mead said he had a large order for a good house ; but
William Senior then declined to enter into any contract with him.
On the following day, however, the 21st of July, on being again
pressed bj' Mead, he took the order, and Mead went to his office, and
in a short time returned to William Senior at the defendant's office,
and delivered to him the following bought note : —

" Liverpool, 21st July, 1840.
"Bought of the Varteg Iron Company, per John Senior & Co.
" One thousand tons of good merchantable bar iron of common sizes,
of flat, square, and round, at £6 per ton — free on board at Newport,
less five per cent for cash pa3'ment, on receipt of invoice and bill of
lading, for eveiy parcel of one hundred tons or upwards.

"Two hundred to be delivered b\- the 20th August, four hundred
tons in all September, and the remaining four hundred tons by the
14th October, and the whole to be shipped at the lowest rate of freight
offering, except in any case where a ship is sent expressly for a cargo.

" Samuel Mead,
for Messrs. V. Higgins & Sons,
Iron Merchants, Liverpool."

William Senior wrote and delivered to Mead the following sold
note : —

" Liverpool, 21st July, 1840.
"Mr. S. Mead.

" We have this day sold, through you, to Messrs. V. Higgins & Sons,
one thousand tons of Varteg, or other merchantable bar iron of common
sizes, of flat, square, and round, at £6 per ton, free on board at New-
port, less five per cent for cash pa^-ment, on receipt of invoice and
bill of lading for every parcel of one hundred tons or upwards. Five
hundred tons to be delivered b\' the 20th August, four hundred tons in
all September, and the remaining four hundred tons by the 14th Octo-
ber, and the whole to be shipped at the lowest rate of freight off'ering,
except in an}- case where a ship is sent expressly' for a cargo.

" We are, «&:c.,

"John Senior & Co.
" William Senior.
" Mr. Mead excludes the Maesteg iron. — W. S."

The plaintiffs put in evidence the sold note only, contending that
that was the contract between the parties. No iron ever was delivered,
though frequent applications were made to the defendant to deliver it
according to the contract, both bv letter and otherwise. Mead was
called as a witness for the plaintiffs, and he proved that there had
been a contract made out for Varteg iron on the company's account,
which he had made out, but that William Senior gave him the above
sold note instead : and that William Senior said he was not sure that

556 HIGGINS V, SENIOR. [CHAP. IV.

he could deliver the whole in Varteg iron, but would take the order to
deliver any other irou as good. He also proved that it was a common
cccui-rence for contracts to be exchanged, and that William Senior said
the one he gave would accord more with his brother's views. The
following letters from the plaintitts to tlie defendant were given in
evidence by machine copies, a notice for the production of them having
been proved : —

"July 29th, 1840.

" Annexed we hand you specifications for part of our contract, made
by Mr. S. Mead on our account, which we wish consigned to tlie King's
Dock here, freight not to exceed 7s. per ton in full."

"3rd August, 1840.

" As a portion of our contract with you is to be delivered on or before
the 20th instant, we have particularly to request that the above specifica-
tions have the precedence ; as they are required for immediate shipment,
let them be quite separate and marked with white paint as above ; and be
pleased to instruct the captain to call upon us previous to coming into
dock, as he will have to go alongside a vessel : the iron to be in clean
blue condition."

" 1.3th Aug. 1840.

" Annexed we hand you two specifications as part of our contract of
the 21st of July, 1840, and we shall feel obhged by j'our having them
immediately shipped at a low freight, so as to be here if possible within
three weeks from this date.

" Please to inform us whether your friends can complete the specifica-
tions within the above time."

"20th August, 1840.

" According to the terms of our contract with you, you are bound to
deliver, on or before this day to our order in Newport, 200 tons of iron,
which we hope has been attended to, although from our not having
received any advice, we fear the contrary ; we therefore deem it neces-
sary to inform you, should the terms of the contract not be adhered to,
we shall hold you responsible for any loss that we may incur thereby."

No answer was returned to any of the above letters.

At the end of the plaintiffs case, Cresswell. for the defendant, sub-
mitted that the plaintiffs were bound to put in the document signed by
Mead ; that the plaintiff's promise was proved to be in writing, and
must be put in. It was answered for the plaintiffs, that the paper was
signed by the defendant's brother, and which had been substituted for
the other at his request, was the only contract. On the part of the
defendant, William Senior was called, who proved the making of the
contract, as above stated, with Mead ; that afterwards Mead brought
the bought note to him, and that he, William Senior, wrote the sold
note, and they exchanged the "one for the other.

The learned judge, in summing up the case to the jury, said that if
the writing signed by William Senior was the contract, the defendant,

SECT. I.] HIGGINS V. SENIOR. 557

in point of law, was liable, whether he intended to act for himself or
the company ; that the defendant was notoriously an agent, but still
if he chose to sign a contract in his own name, he was responsible ;
that if he had acted as agent, not having authority to make the contract,
he was liable for so acting ; and that he was responsible whether the
part}' knew he so acted or not ; that knowledge made no difference.
And he left it as a question to the jury, whether this (viz. the sold note)
was the contract b}- which the parties intended to be bound, or whether
the two papers constituted the contract. If the latter, the plaintiffs
were not entitled to recover, but if the former, the}' were. The jury
found for the plaintiffs, with £1500 damages, leave being reserved to
the defendant to move to enter a nonsuit. Cressicell, in Easter Term
last, obtained a rule accordingl}', either for a nonsuit or a new trial.

Dundas and Creighton showed cause.

Cressu'ell, J. Henderson^ and R. Denmnn^ in support of the rule.

Parke, B. The question in this case, which was argued before us*
in the course of the last term, may be stated to be, whether in an action
on an agreement in writing, purporting on the face of it to be made by
the defendant, and subscribed by him, for the sale and deliver}' by him
of goods above the value of £10, it is competent for the defendant to
discharge himself, on an issue on the plea of non assumpsit^ by proving
that the agreement was really made by him b}' the authority of and as
agent for a third person, and that the plaintiff knew those facts, at the
time when the agreement was made and signed. Upon consideration, we
think that it was not ; and tliat the rule for new trial must be discharged.

There is no doubt, that where such an agreement is made, it is com-
petent to show that one or both of the contracting parties were agents
for other persons, and acted as such agents in making the contract, so
as to give the benefit of the contract on the one hand to,^ and charge
with liability on the other, ^ the unnamed principals : and this, whether
the agreement be or be not required to be in writing b}' the Statute of
Frauds : and this evidence in no wa}' contradicts the written agree-
ment. It does not denj' that it is binding on those whom, on the face
of it, it purports to bind ; but shows that it also binds another, by
reason that the act of the agent, in signing the agreement, in pursuance
of his authority, is in law the act of the principal.

But, on the other hand, to allow evidence to be given that the party
who appears on the face of the instrument to be personalh' a contracting
party, is not such, would be to allow parol evidence to contradict the
written agreement, which cannot be done. And this view of the law
accords with the decisions, not merely as to bills of exchange'* signed
by a person, without stating his agenc}- on the face of the bill ; but as

1 Parke, Aldersox, GnRNEY, and Rolfe, BB. — Rep.

2 Garrett v. Handley, 4 B. & Or. 664 ; Bateman v. Phillips, 15 East, 272. — Rep.
• Paterson v. Gandasequi, 15 East, 62. — Rep.

< Sowerby i;. Butcher, 2 C. & M. .371 ; 4 Tyr. 320; Lefevre ;;. Lloyd, 5 Taunt. 749 J

1 Marsh. 318. — Rep.

558 HIGGINS V. SENIOR. [CHAP. IV,

to other written contracts, namely, the cases of Jones v. Littledale, 6
Ad. & Ell. 486 ; 1 Nev. & P. 677, and Magee v. Atkinson, 2 M. & W.
440. It is true that the case of Jones v. Littledale might be supported
on the ground that the agent really intended to contract as principal :
but Lord Denman, in delivering the judgment of the Court, lays down
this as a general proposition, " that if the agent contracts in such a
form as to make himself personally responsible, he cannot afterwards,
whether his principal were or were not known at the time of the con-
tract, relieve himself from that responsibility." And this is also laid
down in Story on Agency, sect. 269. Magee v. Atkinson is a direct
authority, and cannot be distinguished from this case.

The case of Wilson v. Hart, 7 Taunt. 295 ; 1 Moore, 45, which was
cited on the other side, is clearly distinguishable. The contract in
writing was, on the face of it, with another person named Read, appear-
ing to be the principal buyer ; but there being evidence that the
defendant fraudulently put forward Read as the buyer, whom he knew
to be insolvent, in order to pa3' a debt from Read to himself with the
goods purchased, and having subsequently' got possession of them,
it was held, on the principle of Hill v. Perrott, 3 Taunt. 274, and other
cases, that the defendant was liable ; and as is observed by Mr. Smith,
in the very able work to which we were referred (Leading Cases, vol. ii.
p. 125), that decision turned altogether upon the fraud, and if it had
not, it would have been an authority for the admission of parol evidence
to charge the defendant, not to discharge Read.

Rule discharged}

1 Compare Wake v. Harrop, 1 H. & C. 202 (Ex. Ch. 1862).

In Fisher v. Marsh, 6 B. & S. 411, 416 (1865), Blackburn, J., said: —

" The general rule is, that when an agent makes a contract, naming his principal,
the contract is made with the principal, and not witli the agent. But even where the
principal is known, a contract in writing may be made by an agent with a third person,
in such terms that he is personally bound to the fulfilment of it ; as if he says, ' I for
my own self contract,' in such a ease there is a personal contract by the agent, and he
may sue or be sued on it, although the principal may interfere and claim tlie benefit
of it, as was decided in Higgius v. Senior. ... In the present case the plaintiff on
putting up this land for hire in effect said, ' I let the land, and I undertake upon the
price being paid to me that the person taking the land shall have the enjoyment of it.'
Then the defendant having bid for it, and being the highest bidder, there is a clear
contract by the defendant to become tenant. The terms of the contract were not
reduced to writing ; but does the fact of the plaintiff being auctioneer prevent the
contract being with him ? If not, there was evidence to go to the jury."

In Cream City Glass Co. v. Friedlander, 84 Wis. 53, 57-58 (1893), Winslow, J.,
delivering the opinion of the Court, said : —

" The defendant claimed that he only acted as a broker between the plaintiff and the
Liverpool firm for the sale of the soda ash in question, and upon the trial offered much
testimony, consisting of letters and telegrams which passed between himself and the
plaintiff, and which led up to and finally culminated in the written contract of sale. . . .
This testimony was offered for the purpose of showing that defendant acted simply
as a broker, and that the contract should be construed simply as a broker's sold note.
This testimony was all rejected by the trial court, upon the ground that it tended to
vary and contradict the terms of a written contract. This ruling was strictly right.
The contract which defendant executed, and under which the goods were delivered.

SECT. I.J BRAY V. KETTELL. 559

BRAY V, KETTELL and another.
SuPREMK Judicial Court of Massachusetts. 1861.

[1 Alltn, 80.]

Contract, brought by the master of the schooner Moro^ on a charter-
party executed in the city of New York, and signed on the part of the
charterers as follows : —

" We agree to the above and will furnish cargo and pay freight
accordingl}', and hereby bind ourselves as above.

" Albert Freestone Quarries, by Kettell, CoUins, & Co., Agents.

" Per A. W. Bowman, Att'y."

The defendants, Kettell, Collins, & Co., admitted the authority of
Bowman to sign their names to the charter-party as agents. At the
trial in this court, it was proved or admitted that there was not, at the
time when the charter-part}' was executed, any corporation or company
having the name of " Albert Freestone Quarries." But it was also
proved or admitted that Christopher D. Archibald, of London, a
British subject, was then the proprietor of certain quarries in the
province of New Brunswick, styled "Albert," and that he was in the
habit of using the name "Albert Freestone Quarries " in transacting
business respecting his quarries ; and that about a 3'ear afterwards a
corporation b}' that name was established in New Brunswick. A paper
by which said Archibald appointed the defendants his agents, dated
August 9, 1856, was introduced in evidence; but it did not appear
that the plaintiff knew of this paper, or knew that Archibald was the
part}' intended by the words " Albert Freestone Quarries."

A breach of the contract contained in the charter-party having been
proved, Metcalf, J., ruled, for the purpose of ascertaining the dam-
ages, that the plaintiff was entitled to maintain this action ; and a
verdict was taken by consent for the plaintiff, subject to the opinion
of the whole court, upon the question of the defendants' liability upon
the facts above reported.

W. Brighain, for the defendants.

8. II. PhUlips, for the plaintiff.

BiGELOW, C. J. The plaintifT does not controvert the general rule
of law, that an agent is not personally responsible upon an instrument
executed in the name of his principal. But he rests his claim against
the defendants upon the ground that the present case falls within a

was a plain and unambia:uous contract of sale, and upon familiar rules previous nego
tiation.s could not change its legal effect. There was nothing to prevent the defendant
from making a contract binding himself personally if he chose to do so, notwithstanding
his ordinary business may have been simply that of a broker, and notwithstanding also
the fact that he may have preliminarily negotiated in the capacity of a broker in this
very transaction. Having made such a contract, he cannot now relieve himself from
responsibility thereunder by showing that he was acting simply as agent or broker for
a principal, whether such principal was disclosed or undisclosed." — Ed.

560 BRAY V. KETTELL. [CHAP. IV.

recognized exception to the rule, because the defendants acted in mak-
ing the contract, in behalf of a foreign principal, resident " beyond
seas." It is certainly true that soine of the earlier English cases seem
to sanction the doctrine, that where an agent acts for a foreign princi-
pal, the presumption is that credit is given exclusively to the agent,
and he only is liable on contracts entered into in the name and on behalf
of his principal. Gonzales r. Sladen, Bui. N. P. 130 ; De Gaillon v.
L'Aigle, 1 B. & P. 368 ; Thomson v. Davenport, 9 B. & C. 87 ; Smyth
V. Anderson, 7 C. B. 21. The same doctrine is stated in Palej- on
Agency (4 Amer. ed.), 248, 2 Livermore on Agency, 249, and espe-
cially in Story on Agency, §§ 268, 290, where it is enunciated as a
general rule that agents acting for merchants residing in a foreign
country are held personally liable on all contracts made by them for
their employers, and this without any distinction whether thej- describe
themselves in the contract as agents or not. We are inclined to think
that a careful examination of the cases which are cited in support of
this supposed rule will show that this statement is altogether too broad
and comprehensive. Certain it is, that if it ever was received as a
correct exposition of the law, it has been essentially modified by the
more recently adjudged cases. It doubtless had its origin in a custom
or usage of trade existing in England, by which the domestic factor or
agent was deemed to be the contracting party to whom credit was ex-
clusively given ; and it was confined to cases where the claim against
the agent was for goods sold, and was not extended to written instru-
ments. But it is going quite too far to say that this usage or custom
is so ingrafted into the common law as to become a fixed and estab-
lished rule, creating a presumption in all cases that the agent is ex-
clusively liable, to the entire exoneration of his employer. The more
reasonable and correct doctrine is that when goods are sold to a
domestic agent or a contract is made by him, the fact that he acts for
a foreign principal is evidence only that the agent and not the princi-
pal is liable. It is in reality, in all cases, a question to whom the
credit was in fact given. Where goods are sold, it is certainly reason-
able to suppose that the vendor trusted to the credit of a person re-
siding in the same country with himself, subject to laws with which he
is familiar, and to process for the immediate enforcement of a debt,
rather than to a principal residing abroad, under a different system of
laws, and beyond the jurisdiction of the domestic forum. But even in
such a case, the fact that the principal is resident in a foreign country
is only one circumstance entering into the question of credit and is
liable to be controlled by other facts. So in the case of a written con-
tract ; it depends on the intention of the parties. But this, as in all
other cases of written instruments, must be determined mainly by the
terms of the contract. There may be cases where the language of the
contract is ambiguous, and it is doubtful to whom the parties intended
to give credit, in which the circumstance that the principal is resident
abroad may be taken into consideration in determining the question of

8ECT. I.] FAIRLIE V. FENTON. 561

the liability of tlie agent. But where the terms of the contract are
clear and unambiguous, it must be deemed the final repository of the
intention of the parties ; and its construction and legal effect cannot be
varied or changed by any reference to facts or circumstances affecting
the convenience of the parties or the reasonableness of the contract
into which they have entered. In such a case, therefore, it makes no
difference whether the principal is a foreigner or not. If by the lan-
guage of the contract the agent and not the principal is bound, such
must be its construction ; and, on the other hand, if it clearly binds
the principal, and is in form a contract with him only, the agent must
be exonerated, without regard to the fact that the principal is resident
in a foreign country. This rule can work no hardship, because parties
can in all cases make their contracts in such form as to bind those to
whom they intended to give credit. Mahony v. Kekule, 14 C. B. 390
Green v. Kopke, 18 C. B. 549 ; Lennard v. Robinson, 5 El. & Bl. 125
Kirkpatrick v. Stainer, 22 Wend. 244 ; 2 Kent Com. (Gth ed.) 631, note
Paley on Agenc}', (4th Au)er. ed.) 248, note.

These principles are decisive of the case at bar. The written con-
tract on which the plaintiff relies contains no words from which any
intent to bind the defendants can be inferred. On the contrar}', it is
executed in the precise form required hy law to bind the principal only
and to exonerate the agent. The name under which the principal con-
ducted his business is signed b}- the defendants as his agents. It would
have been open to more question if the defendants had signed their
own names for their principal ; but the contract is executed by the
agents in the precise and technical form in which, hy the strictest rule
of law, it should be signed in order to bind the principal only. Story
on Agency, § 153. There can be no doubt that if the principal resided
in this country, he alone could have been sued on the contract. In
like manner he onlj* is responsible, although a foreigner, because he is
the sole party to it, and there is nothing to control the intent mani-
fested b}' this mode of executing the contract. The defendants are in
no sense parties to' it, and are not liable in this action for damages
occasioned by the neglect of their principal to complj- with its terms.
Verdict set aside; judgment for the defendants.

FAIRLIE V. FENTON.
Exchequer. 1870.

[L. R. 5 Ex. 169.]

Action for the non-acceptance of cotton, tried before Kellt, C. B.,

at Guildhall, on the 10th of December, 1869.

The contract sued on was one made by bought and sold notes, signed
by the plaintiff, a broker in the city of London. The bought note was

3«

562 FAIRLIE V. FENTON. [CHAP, IV.

in the following words: " London, Aug. 20, 1869. — Messrs. J. & R.
Fenton, per Messrs. Ronaldson and Stringer. I have this day sokl 30U
on account of Mr. lllins A. Tinimins, of Manchester, to arrive in Liver-
pool per Evelyn, from Bombay, on the terms of the printed rules of
the Cotton Brokers' Association of Liverpool, as indorsed, 100 bales
Omrawattie cotton, on the basis of IQ'ld. per lb. for fair. No allow-
ance to sellers, but in case of inferioiity of quality the cotton to be
taken by the buyers at an allowance to be settled by arbitration in the
usual manner. To be taken from the warehouse. Any sliglit varia-
tion in marks not to vitiate the contract. Brokerage, per cent.
(Signed) Evelyn Fairlie, broker."

The plaintiff obtained a verdict for £1,748, leave being reserved to
the defendants to move to enter a nonsuit, on the ground that the
plaintiff only made the contract as broker, and was himself no party to
it. A rule having been obtained accordingly',

Pollock, Q. C, and Barnard, showed cause. The plaintiff was him-
self a contracting part}'. There is nothing in the fact that a man is
acting as agent to prevent him from contracting in his own name, and
the use of the words '"I have," shows that he was here doing so:
Sargent v. Morris, 3 B. & A. 277, per Bayley, J., at p. 280 ; Parker v.
Winlow,. 7 E. & B. 942 ; Tanner v. Christian, 4 E. & B. 591 ; Lennard
V. Robinson, 5 E. & B. 125 ; Mahony v. Kekule, 14 C. B. 390. More-
over, as a rule, a broker, like an auctioneer, can sue in his own name
upon contracts made by him for his principal : Williams v. Millington,
1 H. Bl. 81 ; Chitty on Pleading, 7th ed. vol. i. p. 8.

[Martin, B., referred to Lush's Practice, vol. i. p. 11 (3d ed.).]

Br oxen, Q. C and Mellor, in support of the rule. The case of an
auctioneer is wholly distinct from that of a broker. His right to sue,
like that of a factor, rests upon his interest in the contract, and his
lien on the goods and on their price. This is clearly shown in Williams
V. Millington, supra ; Robinson v. Rutter, 4 E. & B. 954 ; and Fishery.
Marsh, 6 B. & S. 411 ; which are all expressly based upon that ground.
But a broker has no possession of the goods, and no lien on them or
on the price, and has no right to sell in his own name or to receive
payment. The case is therefore left to the general principle laid down
by Blackburn, J., in Fisher v. Marsh, 6 B. & S. at p. 416 ; that where
the principal's name is disclosed in a contract made by the agent, the
principal only can sue, unless the agent, by distinct words, makes the
contract his own. Here, on the contrary, the plaintiff both names his
principal and signs as broker, the inference from which is that he
acted merely as agent. The case is directl}' within the authority of
Bramwell v. Spiller, 21 L. T. (N. S.) 672 ; and the only words in the
contract which appear to lead to an opposite conclusion, "I have
sold, &c.," are shown by Fawkes v. Lamb, 31 L. J. (Q. B.) 98, not to
have an}' such operation.

Kelly, C. B. The numerous cases cited to us show that in certain
contracts the agent may himsielf sue as principal ; but in none does it

SECT. I.] FAIRLIE V. FENTON. 563

appear that a broker has successfully maintained an action on a con-
tract made by him as broker. He may, no doubt, frame a contract
in such a way as to make himself a party to it and entitled to sue, but
when he contracts in the ordinary form, describing and signing himself
as a broker, and naming his principal, no action is maintainable bj'
him. Though innumerable contracts of this nature dail}' take place,
yet no instance has occurred within my own recollection, nor has any
instance been cited to us, where an action has been brought by a
broker describing himself as such in the contract, and not using words
which expressly or by necessary implication make him the contracting
party. Without further arguing the point, it is enough to refer to this
unbroken rule as the settled law upon the subject.

Martin, B. I am of the same opinion, though I had certainly been
under the impression that a broker could sue in his own name. I find
that it is so laid down in Chitty on Pleading, vol. i. p. 8. It was also
so stated in Hammond on Parties, an extremely able work, from which
the statement was probably adopted b}' Mr. Justice Lush into his very
valuable book of Practice (Lush's Practice, 3d ed. p. 11). My opin-
ion was probabl}' founded on those authorities, and on a general notion
that a broker had an interest in the contract which entitled him to
maintain an action. But that can only be where be has such an
interest in fact ; and I am entirel}' satisfled, even without authority,
that when he states on the face of the contract that he is acting as
broker, that is, as a middleman between the two parties, he has no
interest, and cannot sue. If he could sue, he could also be sued ; and
it is obvious on the face of the contract that he does not contract to
deliver the goods sold, but onl}- that he has authorit}' to enter into the
contract on behalf of the principal he names. The words " I have,"
are of no importance to show him a contracting part}'.

PiGOTT, B. I am of the same opinion. On the plain construction of
the contract the plaintiff is no party to it ; but only signs, as broker,
bought and sold notes for the respective parties. Baring v. Corrie,
2 B. & A. 137, shows the difference between the position of a broker
and a factor, and that the broker has no right to sell in his own name ;
in the present case, I do not think that he has, in fact, done so.

Cleasby, B. I am of the same opinion. There is no doubt a
broker cannot sue ; he has no authoi'ity to sell in his own name, or to
receive the money, and has nothing to do with the goods. This is so
laid down in Story on Agency, sees. 28-34, 109: "To use the brief
but expressive language of an eminent judge, ' a broker is one who
makes a bargain for another, and receives a commission for so doing.'
Properly speaking, a broker is a mere negotiator between the other
parties, and he never acts in this own name, but in the names of those
who employ him. When he is employed to buy or to sell goods, he is
not intrusted with the custody or possession of them, and is not au-
thorized to buy or to sell them in his own name" (sec. 28). "So, a
broker has ordinarily no authoritj' virtute officii^ to receive payment

564 CALDER V. DOBELL. [CHAP. IV.

for propert}' sold by him" (sec. 109). The distinction between a
broker and an auctioneer has been already pointed out in argument.
My onl3' doubt has been whether the use of the words " I have," «&c,,
ought to be held to import a. personal participation in the contract, the
usual course being departed from ; but my opinion is, it ouglit not.
The form is also in some other respects a little peculiar, as in its refer-
ence to the rules of the Cotton Brokers' Association ; but it has not
been shown that those rules treat the broker as a principal in the trans-
action. The rule must, therefore, be made absolute.

Eule absolute}

CALDER AND ANOTHER V. DOBELL.

Common Pleas and Exchequer Chamber. 1871.

[L. R. 6 C. P. 486.]

Action for not accepting cotton pursuant to contract. The cause
was tried before Brett, J., at the last assizes at Liverpool. The facts
were as follows : —

The plaintiffs were cotton brokers in Liverpool trading under the
name of Wright & Co. The defendant was a merchant there. In
January, 1870, one Cherry, a broker, proposed to the defendant to buy
cotton " to arrive." The defendant consented to bu}' 100 bales, but
declined to allow his name to appear in the transaction. Cherr}' there-
upon offered to buy of the plaintiffs 100 bales, but they refused to trust
him, and Cherr^', being pressed, disclosed the name of the defendant as
his principal. A contract was then entered into between the plaintiffs
and Cherry for the sale of 100 bales at a given price, and a sold-
note was sent by the plaintiffs to Cherry, — "Mr. P, Cherry. We
have this day sold to you 100 bales cotton," &c., &c., and a bought-note
was sent by Cherry to the plaintiffs, — "I have this day bought of j'ou
100 bales cotton," &c., &c. Cheny at the same time sent the defendant
an advice-note, as follows: "I have this day bought for 3-ou from
Wright & Co. 100 bales cotton," &c. This note was kept by the de-
fendant till the month of August. An invoice was sent by the plain-
tiffs to Cherry charging him as the buyer of the cotton, and Cherry was
debited for it in the plaintiffs' books, and, after the arrival of the cot-
ton, he was repeatedly applied to to accept and pay for it, both by the
plaintiffs and by their attorneys ; and, faihng to obtain payment from
him, and the market falling, the plaintiffs sold the cotton and sued the
defendant for the difference between the price at which the cotton was
sold and the market price at the time of the breach.

1 As to auctioneers, see Williams v. Millington, 1 H. Bl. 81 (1788); Robinson K
Rntter, 4 E. & B. 954 (1855) ; Thompson v. Kelly, 101 Mass. 291 (1869) ; Grice v. Ken-
rick, L. R. 5 Q. B. 340 (1870) ; Woolfe v. Home, 2 Q. B. D. 355 (1877). — Ed.

SECT. I.] CALDER V. DOBELL. 565

The learned judge left the following questions to the jur}' : 1. Did
the defendant authorize Cherry to make the contract for him? 2. Did
Cherry assume to make the contract for tbe defendant, and did the de-
fendant, knowing this, ratify his act? 3. Did the plaintiffs, knowing
that Cherry was acting as agent for the defendant, elect to contract
with Cherry as principal, upon the terms of giving credit to him and
him alone?

The jury answered the first and second questions in the affirmative,
and tlie third in the negative, and a verdict was thereupon entered for
the plaintiffs for £530, leave being reserved to the defendant to move
to enter a verdict for him or a nonsuit, if, assuming the facts found by
the jury to be true, the}' could not properly- be given in evidence, hav-
ing regard to the written contract ; or if, having regard to the wiiole
evidence, the learned judge ought to have directed the jury, as matter
of law, to find for the defendant.

Jan. 12. Jlolker, Q. C. f^Ihrf^didl with him) moved to enter a ver-
dict for the defendant, or a nonsuit, pursuant to the leave reserved, or
for a new trial on the grounds of misdirection, and that tlie verdict was
against the weight of evidence. Dobell's name having beeu disclosed
at the time, it was not competent to the plaintiffs to say the}' contracted
with him, and not with Cherr}-. Where the name of the principal is
not disclosed, parol evidence is admissible to show that there was a
principal. But, where the principal is known at the time, and the
seller chooses to contract with the agent in his own name onl}-, to
allow the seller to say that he contracted with the principal, and not
with the agent, would be to admit parol evidence to contradict the
written contract.

[BoviLL, C. J. Have you any authorit}- to support that distinction?]

There is no distinct authorit}- upon the subject ; but it is submitted
that it must be so in principle.

[Montague Smith, J. It is opposed to the doctrine of Parke, B.,
in riiggins ^'. Senior, 8 M. & \y. 834.]

[Brett, J. There is nothing in the notes to Thomson v. Davenport,
2 Sm. L. C. 6th ed. 338, to warrant it ; and the reasoning of all the
cases is against it.]

The insertion of the agent's name in the contract, the principal being
known at tiie time, was a conclusive election on the sellers' part to look
to the agent only ; and the learned judge ought to have so directed the
jury, as matter of law.^ . . .

BoviLL, C. J. The jury having found a verdict for the plaintiffs, my
Brother Brett reserved leave to the defendant to move to enter a non-
suit or a verdict for him, if, assuming the facts found b}- the jury to be
true, they could not properly be given in evidence, having regard to
the written contract ; or if, having regard to the whole evidence, the

^ Citing Paterson v. Gandasequi, ante, p. 527 ; Thomson v. Davenport, ]>ost, p. 637 ;
Priestly v. Fernie, post, p, 698; Smethurst v. Mitchell, 1 E. & E. 623; Addison oa
Contracts, 6th ed 605. — Ed.

566 CALDER V. DOBELL. [CHAP. IV.

jury ougbt to have been directed, as matter of law, to find for the
defendant.

The first ground upon which Mr. Holker has moved to enter a ver-
dict for the defendant is founded on the first part of the leave. For
this purpose the facts found must be taken to be true ; and the ques-
tion is whether parol evidence was admissible to show that the contract
was made on behalf of the defendant as principal. Now, the written
contract was made with Cherry in his own name ; and it is contended
that, the defendant's name having been disclosed at the time, the de-
fendant cannot be sued ; in other words, that parol evidence was not
admissible to show that the defendant was the real principal. It has
for man}' years been a generally received impression that, where a
broker makes a contract for an undisclosed principal, the latter may
6ue upon it, and equally that, when discovered, he ma}' be made re-
sponsible for its performance. There can be no doubt that the defend-
ant might have sued upon the contract so made by Cherry ; and I am
equally of opinion that he may be made responsible, provided the parol
evidence was admissible to show that he was the real principal. The
rule is clearly laid down by Parke, B., in Higgins v. Senior, 8 M. & W.
834, 844. . . . The principal may sign by the hand of another in his
own name, or in a fictitious name, or by means of a stamp, and so
become a party to the contract in vaiious ways. The ground upon
which this doctrine rests is explained also by Parke, B., in Beckham v.
Drake, 9 M. & W. 79, 96, where, dealing with a similar matter, lie says :
"The doctrine rests upon this principle, that the act of the agent was
the act of the principal, and the subscription of the agent was the
subscription of the principal." And he proceeds to say, "I am not
aware of the existence of any cases in which a distinction has been
suggested between a contract which has been entered into by one indi-
vidual for another, or by two individuals for themselves and another,
as to the liability of the principal to be sued." He then refers to the
case of a bill of exchange, which he treats as an exception, standing
upon the law-merchant. The same principle is exemplified by the
Court of Queen's Bench in the case of Trueman r. Loder, 11 Ad. & E.
589. There the agent was acting for a foreign house, and the Court
say : "If the defendant chose to appoint an agent to carry on trade for
him in the name of Higginbotham, he clearly authorized that person to
do all that would be necessary for him so to carry it on ; among other
things, to employ a broker to sell for him ; and it does not lie in his
mouth to deny that the name of Higginbotham so inserted by the broker
in the sold-note is the defendant's own name of business." There are
other observations to the same eflject, and it is held that the evidence
is admissible, and that the signature is the authorized signature of the
principal. The evidence does not contradict the written contract. It
is true, as has been said, that the agent may be personally charged, and
that where he has given his signature to the contract, he is estopped
from saying that he did not contract personally. That, however, is a

SECT. I.] CALDER V. DOBELL. 567

very different thing from saying that the real principal when discovered
cannot sue or be sued. The suppression of the principal's name is
entirely consistent with the practice of many trades, to conceal trans-
actions of speculation. The effect is that if the broker enters into
contracts in his own name, and has a principal, those whom he con-
tracts with will have the responsil)ility botli of the principal and of the
broker. There is nothing inconsistent in thus giving an option to hold
either responsible. I am of opinion that, in accordance with all the
authorities, the parol evidence was admissible.

The next point is raised upon the latter part of the leave reserved.
It seems to me to be impossible to say, as matter of law, that the
learned judge was bound to direct the jury to find for the defendant.
There was evidence which could not have been withdrawn from the jury.
I am, therefore, of opinion that that ground for the motion fails.

Then it is said that the plaintiffs had elected to treat Cherry as the
principal. For tlie purpose of this point we must assume that there
was a principal who autlioiized Cherry to make the contract. Now, it
is contended that the very fact of the plaintiffs' entering into the con-
tract with Cherry was evidence of election. But, if the parol evidence
was admissible, that argument fails. Election must be a matter of
fact ; and it appears that, at the time of entering into the contract, the
plaintiffs expressly refused to trust Cherr}'. The next ground of alleged
election was the demand of payment made on the broker. That, how-'
ever, was an equivocal act. If the plaintiffs have got the responsibilit}'
of a principal, the demands made upon the agent ma}' have been made
upon him on behalf of his principal. There are many trades in which
the practice prevails of referring to the brokers alone ; and it is a very
convenient practice. Where shipping documents have to be tendered,
they are almost invariably sent to the brokers for that purpose. I
think the evidence relied on to show an election was extremelj' slight,
especially where the only action brought was brought against the prin-
cipal. It was clearly for the jur\', and the learned judge would not
have been justified in withdrawing it from them. The jury, as men of
business, have arrived at a conclusion upon it of which I see no reason
to complain : and my Brother Brett does not report to us that he is dis-
satisfied with the verdict.

Then it was said that there was no evidence of authority to Cherr}'
to make the contract in the form in which he made it. That rests
entirely upon the evidence of the defendant himself; Cherry was not
called. It was proved that advice was sent by Cherry to the defendant
of a contract with Messrs. Wright & Co. for 100 bales of cotton, and
there was also evidence that Cherry had authority to make that con-
tract, and evidence of ratification by the defendant ; and the jur}' found
that the defendant did authorize and did ratif}' the contract so made,
and my Brother Brett is not dissatisfied with that finding. It was
further objected that the learned judge was wrong in leaving it to the
jary to say whether the plaintiffs elected to treat Cherry as principal,

568 CALDER V. DOBELL. [CHAP. IV.

and to give credit to him, and him only. That, however, was in favor
of the defendant. I think it was not, as matter of law, a contract made
with Cherry alone, and that the jury were well warranted in finding as
the}' did. It was further contended that my Brother Brett should have
told the jury that the plaintiffs were bound to make their election at
once, or, at all events, in a reasonable time. That point was not and
could not have been raised at the trial. For the purpose of this ques-
tion all the rest must have been assumed against the defendant. I
further think that there is no ground for saying that the verdict was
against the weight of evidence. There will, therefore, be no rule.

WiLLES, J. I am of the same opinion. When it is borne in mind
that there is no difference, except when introduced by Act of Parlia-
ment, between a contract by word of mouth and a contract in writing
not under seal, the whole argument must fail. The contention on the
part of the defendant is founded upon the fact of there being a contract
in writing, and on that part of it which contains the name of the agent.
Consider how the matter would have stood if what passed between the
plaintiffs and Cherry had been all without writing. It would have stood
thus, — Dobell authorized Cherry to buy cotton for him. Cherry- pro-
poses to bu}' cotton of the plaintiffs ; but, being told that the sellers do
not choose to rely on his credit, lie named Dobell as his principal. The
plaintiffs thereupon sell to Dobell through Cherr}' as his agent. Upon
that state of things, Dobell would alone have been liable, and not the
agent. Superadd to this that, at the time of entering into the contract,
the sellers had said to Cherry, " We insist upon having the liability of
3-ou, Cherr}', just as if you were dealing with us without disclosing the
name of your principal ; " and suppose Cherr}' had assented to that.
In that case, Dobell would have been liable to the plaintiffs as the prin-
cipal buyer, and Cherry would also have been liable because he had
agreed that he should stand in the same situation as if he had bought
as broker for an undisclosed principal. The result would have been
that the sellers would have had a right to elect to sue either the agent
or the principal. Now, what was the effect of the writing here? A
bought-note is handed to the sellers, in which Cherry's name only is
mentioned, but which did not preclude the sellers from showing that
Cherry had a principal. That had the effect of making the principal
answerable, assuming that his name had not been disclosed at the lime ;
and it had the further superadded effect of making the agent liable, by
reason of the peculiar character of the writing, by which he undertook
to be liable as if the name of his principal had not been disclosed. This
is the sole effect of Higgins v. Senior, 8 M. & W. 834. The case does
not stand barely on that. There is another writing, viz., the advice-
note which was handed to Dobell, and which ran thus : " I have this
day bought for you from Messrs. Wright & Co.^" &c. These bought
and sold-notes very often vary, as in Cropper v. Cook, L. R. 3 C. P.
194, and yet form part of the same transaction. Tt would be a remark-
able contract if the buyer could sue the sellers upon it, and yet the set

SECT. I.] CALDER V. DOBELL. 569

lers be precluded from suing the buyer. The result is that the defendant
must show that his liability was put an end to by the election. That is
what Lord Tenterden meant when he said, in Thomson 6'. Davenport,
9 B. & C. 78, that, " if at the time of the sale the seller know not only
that the person who is nominally dealing with him is not principal, but
agent, and also know who the principal realh* is, and notwithstanding
all that knowledge, chooses to make the agent his debtof, dealing with
him alone, then, according to Addison c. Gandasequi, -i Taunt. 574,
and Paterson r. Gandasequi, 15 East, 62, the seller cannot afterwards,
on the failure of the agent, turn round and charge the principal, having
once made his election at the time when he had the power of choosing
between the one and the other." I do not agree with Mr. Holker that
two persons cannot be severally liable on the same contract. The
question is whether there was anything in the circumstances of this
case to negative or exclude the liability of both principal and agent,
or to substitute the lial)ility of the latter for that of the former. The
facts were properly submitted to the jury ; and they have come to a
conclusion upon them to which it was competent to them to come.
There is nothing to prevent the seller from insisting upon having both
principal and agent liable to him at the same time, with the additional
advantage of knowing the principal's name at the time. The very
ol)ject of the plaintiffs' insisting upon being informed of the name of
the principal was to make him liable ; and Cherry's name was inserted
in the contract for the purpose of enabling them to charge him, at their
option. To hold that asking the name of the principal at the time is
to discharge the principal, would seem to me to be contrar}' to common
sense. Several cases were referred to in the course of the argument ;
but the only one to which I desire to call attention, and v\hich has a
close resemblance to the present case, is Mortimer i'. M'Callan, 6 M. &
W. 58. I do not refer to that case for the usages of the Stock Ex-
change, which are subject to change. The decision proceeded on a
usage of that market which involved circumstances very like those of
the present case. There, one Taylor, a stock-broker, had applied to
the plaintiff, a stock-jobber, for the purchase of £5000 stock for the
defendant. The plaintiff, not having an}' stock of his own, applied to
Ward, who agreed to transfer, and did accordingly transfer, stock
standing in his name to tlie defendant. Evidence was given that it
was the usage on the Stock Exchange to give credit to the broker, even
although the principal were disclosed, though credit is sometimes given
to the principal, and his cheque taken when the broker's credit is not
thought sufficient. The judge in summing up told the jury that, al-
though by the regulations of the Stock Exchange the broker was the
part}' considered liable, it did not follow that the principal might not
be liable also ; and he left it to them to say whether the plaintiff had
ever given credit to or taken the responsibilit}' of Taylor, or ever con-
sented to release the defendant as the principal. The Court held this
to be a propel- direction ; and, the jury having found that the plaintiff

570 CALDER V. DOBELL. [CHAP. IV.

had not released the pruieipal, the verdict was upheld. Lord Abinger,
who was eminently experienced as to wliat is the proper question to be
left to the jur}' in a case of this sort, there says (6 M. & W. at p. 66) :
"I do not apprehend the rules of the Stock Exchange would make an}-
difference as to the right of a party who sells stock to choose to what
person credit shall be given, if he thinks proper ; and the evidence
shows that it was tlie case sometimes to look to the principal. That,
then, brings it to a question in this particular case whether or not the
plaintiff meant to take the credit of Taylor onh, and give up that of
the defendant, or whether he insisted on the credit of the defendant.
Now, that was a question for the jury." It is enough to sa}' that it
never seems to have occurred to the minds of the counsel or of the
Court that the mention of the name of the principal at the time made
any difference as to the liability of either principal or agent. I would
conclude by saying that, but for the law laid down in Higgins v. Senior,
8 M. & W. 834, Dobell, the principal, onl}- would have been hable here ;
and that case only goes to superadd the liability of the agent, and not
to detract from the liability of the principal. Apart from the written
contract, the principal onl}' would have been liable ; and the clear effect
of the writing was only to superadd the liability of Cherry, the agent.

Montague Smith, J. I am of the same opinion. The written con-
tract made b\- the plaintiffs with Cherry upon the face of it purports to
be his contract, and his contract alone ; and the first question is, whether
parol evidence was admissible to show that he was contracting for a
principal. It is not denied that such evidence might be received if the
principal had not been disclosed at the time ; but it was strenuously
contended that it cannot be received where the principal is known.
I must confess I do not see an}' principle upon which the supposed dis-
tinction can rest. The rule is that evidence is admissible to show that
the person contracting was acting for a principal, because the admission
of such evidence does not contradict the written contract. It is so put
by Parke, B., in Higgins v. Senior, 8 M. & W. 834, 844. . . . The
evidence is admissible on this principle, viz., that, for the purpose of
that contract, the principal has allowed the agent to sign it in his own
name in the place of himself. It has been held, no doubt, that evi-
dence is not admissible to show that the person named as the contract-
ing party is not liable. ... I have felt some doubt as to the soundness
of that distinction. However, it has been followed in a great number
of cases, and is now well established ; and, although technical, it appears
to consist with the practical business habits of mankind. Whether
strictl}' logical or not, it is recognized by the law. The other principle,
which is well laid down and is perfectly intelligible, viz., that parol evi-
dence may be given to show that the signature, though by an agent, is
intended to bind his principal, is quite sufficient to dispose of this case,
unless the distinction suggested by Mr. Holker is well founded. I can-
not find ground for any such distinction, so far as the admissibilit}' of
evidence is concerned. The second question is whether the plaintiffs,

SECT. I.J CALDEIi V. DOBELL. 571

knowing at the time of the making of the contract, that there was a
principal, and also who that principal was, did not by the form of the
contract elect to treat Cherry as the principal and the only principal.
That is the point which seems to me to require the most consideration.
Mr. Ilolker was bound to contend that the entering into the contract
with Cherry in his own name, was, under the circumstances, conclusive
evidence that the plaintilfs had elected to treat Cherry alone as the
principal. I agree that it was strong evidence ; but, if the parol evi-
dence was admissible, it shows what the real transaction between the
parties was. Being employed to bu}' cotton for the defendant, with aa
injunction not to allow the defendant's name to appear. Cherry buys in
his own name; but the sellers, for reasons of their own, insisting upon
knowing who the principal was, Cherry, disregarding his instructions
in that respect, disclosed the defendant's name. The plaintiffs required
the principal's name, with a view of fixing him ; but, because he desired
that his name should not appear, the contract was made out in the name
of the agent. The plaintilfs clearly never intended to make the bargain
with Cherr}' alone. At all events, it w^as a question for the jury ; and
it is impossible to say that it could have been properly withdrawn from
them. Mr. Holker contended that the election was made, and conclu-
sivel}' made, at the time of the contract. The cases show that the sel-
ler ma}' make his election whenever the principal is discovered ; and
the only difference in principle between the case where the principal is
disclosed and wliere he is not disclosed, is, that, in the former case,
the election may be made at the very time the contract is made. If
there were any estoppel, there might be some force in Mr. Holker's
argument ; but, when we come to a question of evidence, the argument
fails. The only other question is as to the mode in which the questions
were put to the jury. I think, however, the}' were put in a perfectly
intelligible manner, and that the finding of the jury was well warranted
by the evidence.

Brett, J. The first point made b}- Mr. Holker was, that parol evi-
dence that Cheny was acting as agent for the defendant ought not to
have been received, because the existence of a principal and his name
were known at the time the contract was entered into, and therefore
the parol evidence would contradict the written document. AVhere the
principal is undisclosed, it is conceded that parol evidence that there is
a principal is admissible, inasmuch as that does not contradict the writ-
ten contract. I cannot follow the distinction. I see no reasoning to
support it. It was further urged that, inasmuch as b}' the written con-
tract, the agent was made liable b}- election, the principal could not
be liable also, because that would be making two persons severally
liable upon the same contract at the same time. This argument would
be equally applicable to a case where the principal is undisclosed ; and
there, though from the time the contract is made the agent is liable,
the principal also is liable. If Mr. Holker's major proposition is incor-
rect, there is no more reason why the minor should be sustainable.

572 CALDER V. DOBELL. [CHAP. IV.

As to the point of nonsuit, it is said that I ought to have told the jurj',
as matter of law, that the plaintiffs, by the insertion of Cherry's name
in the contract, conclusively' elected to treat him and him alone as the
buyer. If, however, the first point fails, this also must fail. It must
be a question of fact upon the whole evidence, and I could ;iot with-
draw it from the jur^'. Mr. Holker finds fault with all the questions I
left to the jur}'. As to the first and second, they were mere matters
of form. There was abundant evidence that Cherry did make the con-
tract with the auttiority of the defendant, and that he did ratify it; for,
the advice-note being sent to him, he kept it for five months without
objection. The jury, therefore, were well warranted in answering both
those questions affirmativel}'. As to the question of election, I left that
question to the jury, having Thomson v. Davenport, 9 B. & C. 78,
before me ; and the jury, with their knowledge of Liverpool business,
were perfectly well qualified to deal with that ; and I cannot saj- that
they came to a wrong conclusion. Hide refused.

Against this judgment an appeal was brought in the Exchequer
Chamber, and the case was argued on the 16th of June before Kelly,
C. B., Martin, B., Blackburn, J., Channell, B., Lush, J., Hannen,
J., and Cleasby, B.

June 16. Holker, Q. C. (Ilerschell with him), for the defendant.^

Quain, Q. C. (C. Kussell with him), for the plaintiflTs, was not called
upon.

Kelly, C. B. I think this case is free from doubt or diflftcult}'. The
contract was made in the name of Cherry, the agent ; but the case
shows that it was made on behalf of a principal who was named at the
time. I think the plaintiffs had a right to sue either the agent or the
principal at their election. No doubt, the election being once deter-
mined, there is an end of the matter; as, where the agent has been
sued to judgment. Here, however, nothing was done to determine the
election at the time this action was brought against the principal. The
question was, I think, properly left to the jury, and upon proper evi-
dence ; and the verdict was quite right. There is no ground for grant-
ing a rule.

Martin, B. The true rule was laid down by Parke, B., in Higgins
V. Senior, 8 M. & W. 834. The fact of his name having been mentioned
at the time, did not make Dobell the less a principal.

Blackburn, J. I apprehend that where a man is acting as agent,
the principal is not the less bound because the contract is so drawn as
to make the agent also liable. There are many cases where, although
a man is acting for another, he is not contracting for another. The
distinction suggested by Mr. Holker is new to me. Contracts are fre-
quently made b}' masters of ships, charter-parties, and other contracts ;
nobod}^ ever doubted that the owners might sue and be sued upon
them.

' Citing Short v. Spackman, 2 B. & Ad. 962. — Ed.

SECT. I.] CHANDLER V. COE. 573

Hannen, J., referred to Story on Agency, § 160 a., where it is said:
*' If the agent possesses due authority to make a written contract not
under seal, and he makes it in his own name, whetlier he describes
himself to be an agent or not, or whether the principal be known or
unknown, the agent will be liable to be sued and be entitled to sue
thereon, and his principal also will be liable to be sued and be entitled
to sue tliereon, in all cases, unless from the attendant circumstances it
is clearly manifested that an exclusive credit is given to the agent, and
it is intended by both parties that no resort shall in any event be had
by or against the principal upon it."

The rest of the court concurred. Judgment affirmed.

CHANDLER v. COE and another.
Supreme Court of New Hampshire. 1874.

[54 .V. //. 561.]

Assumpsit, by Horace J. Chandler against E. S. Coe & S. R. Bearce,
brought to recover a balance claimed to be due from the defendants
for cutting and drawing logs in the winter of 1865 and 1866, and for
delivering the same in tlie Androscoggin River in the spring of 1866.
Plea, the general issue. The writ is dated October 8, 1870,

It appeared that some time in October, 1865, the plaintiff and one
L. E. Dunn had a conversation in regard to cutting and hauling the
logs ; that the plaintiff explored the land from which they were to be
cut, and, during the latter part of November, 1865, made a verbal bar-
gain with said Dunn to cut and haul and deliver as aforesaid what logs
the plaintiff might be able to do with four horses and four oxen, prop-
erly manned and equipped, at four dollars per thousand feet ; that
immediately after this verbal contract was made, the plaintiff com-
menced the work and continued until the fore part of April, 1866 ; that
Dunn made advances to the plaintiff to the amount of 8550 before
December 28, 1865, at which time he reduced the contract to writing,
describing himself therein as the part}' with whom the plaintiff con-
tracted, and not mentioning the names of the defendants, and the
plaintiff and Dunn signed it. The plaintiff was a witness, and was
permitted, against the defendants' objection, to testify that Dunn at
the time of making the contract said he was acting for the defendants
in making it ; and on cross-examination he testified that it was liis un-
derstanding that Dunn was acting for the defendants in making the
contract. Dunn testified that he did not represent to the plaintiff, at
the time the contract was made or at an}' other time, that he was acting
in the capacity of agent for the defendants, or as agent for anybody',
but that he was acting for himself alone.

574 CHANDLER V. COE. [CHAP. IV

The plaintiff claimed that the defendants were the principals in said
contract; that the contract was made in the name of Dunn for them,
and that he was their agent in doing the business ; and that the}- had
allowed and permitted him, as their agent, to contract and act for
them, for a long time, in his own name, in making contracts for cutting
and hauling timber ; and the plaintiff introduced evidence tending to
prove that such had been their way of doing business. The defendants
objected, and contended that after the written contract had been read
in evidence (as it was for the plaintiff), parol testimony should not be
admitted to prove that the defendants were the real parties in interest.
But the court overruled the objection and admitted the evidence, and
the defendants excepted. The defendants' counsel argued to the jury,
that, if the plaintiff was to be believed, the defendants were not undis-
covered principals, but tluxt at the time of making the contract he was
informed bv Dunn that he was acting as agent in the matter, and that
bis principals were the defendants ; and thereupon, before the plaintiffs
counsel commenced his argument to the jur}', moved for a nonsuit on
that ground. The court declined to order a nonsuit, and the defendants
excepted. But the court at that time informed tlie counsel that the law
would be held to be, that if at the time of executing the written con-
tract the plaintiff knew and was informed by Dunn that he was acting
as agent in the matter, and that the defendants were his principals, he
could not recover in this suit, and read to the counsel, in the hearing of
the jury, the following minute, which had been previously prepared as an
instruction to be given to the jur}' : " I think if the plaintiff knew at the
time of making the contract that Dunn was acting as agent in the affair
and not on his own behalf, and also knew for whom he was acting, and
then entered into this contract in writing, which on its face is a con-
tract with Dunn as an individual, his only remedy is against Dunn, and
these defendants cannot be held liable." The court then proposed to
submit to the jurj' the three following questions, which had also been
previously prepared in writing: " (1) Was Dunn acting as the agent
of the defendants in making the contract? (2) Did the plaintiff at the
time of making the contract know that Dunn was acting as the agent
of the defendants in making it, and did Dunn so inform him? (3) Has
the plaintiff been paid for the timber he got out under the contract?
If not, how much is due him, including interest?"

The plaintiffs counsel said he did claim that Dunn informed the
plaintiff that he was acting as the agent of the defendants in making
the contract, and that the plaintiff understood from Dunn that he was
entering into a contract with the defendants through Dunn as their
agent. The second question was thereupon struck out, and the court
informed the counsel that the first and third questions would be sub-
mitted to the jur}', in order that the results of the trial might not be
lost in case the view of the law suggested b}- the court as to the second
question should be held to be erroneous. The plaintiffs counsel argued
to the jury that the fact that at the time the contract was made Dunn

SECT. I.] CHAXULEll V. COE. 575

said he vvas the agent of the defendants was a strong circumstance to
prove tliat issue in favor of the plaintitf.

The jur}' answered tlie first question in the alUiinutive and the third
in the negative, and assessed the plaintilf's damages at 81,094.20.
Upon considering tlie foregoing exceptions and the questions arising on
the motion for a nonsuit, tliis court is to make such order as to judg-
ment as may be prc^per.

G. A. Binglidin and Rinj (b Dr< u-^ for the phuntitf.

Fletcher ct* Heijicood and Bio'ns <& II' t/n:o(HL for the defendants.

HiBBAKU, J. The plaintiff claims to be entitled to recover against
the defendants, for labor performed by liiui under a contract entered
into with L. E. Dunn, and reduced to writing and signed by Dunn in
his own name, upon the ground that the real contracting i)arty was the
defendants carrying on business in the name of L. E. Dunn, who acted
as their agent in making tlie contract, and so informed the plaintiff at
the time of making it. The plaintiff's position is not merely that Dunn
was the agent of the defendants, duly authorized to make the written
contract in their biihalf, which the plaintiff understood at the time it
was made, but that it was the contract of the defendants carrying on
business in the name of L. E. Dunn.^ . . .

It is very clear that if the defendants carried on business in the name
of L. E. Dunn, and Dunn executed this contract in his own name as
their agent, it is binding upon them whether he did or did not inform
the plaintiff of his agenc\'. The law is the same even in the case of
negotiable instruments, which under some circumstances stand on a
different ground from simple written contracts, as will hereinafter
appear.

But is it indispensable for the plaintiff to prove that the defendants
adopted the name of L. E. Dunn as their business name ? Ma}' he not
recover if Dunn acted as their dulv authorized agent in making the con-
tract, although he ma\- not have done other business for them in his
own name ? If the contract had been verbal, the case would have been
free from difficult}'. In that event, if the pi'incipals had been known at
the time it was made, the presumption would have been that it was
their contract, but if the agent had contracted on his own account, and
the plaintiff had elected to look to him rather than to the principals,
he would have been bound by his election. If they had been un-
known, he would have been entitled to make his election whether to
look to the agent or to the principals, within a reasonable time after
discovering them. . . .

But the contract between these parties was reduced to writing, and it
does not contain the names of the defendants ; and this presents a per-
plexing question, which has given rise to a great vai'iet}' of contradic-
tory and irreconcilable decisions. . . .

We are of the opinion that where a principal is sought to be charged

^ The omitted passages deal chiefly with the law as to partners and undisclosed
Drincipals. — Ed.

576 CHANDLER V. COE. [CHAP. IV.

upon a contract in writing, made in the name of his agent, the rule of
evidence, which prohibits the parties to a written contract from con-
tradicting or varying its terms by parol testimony, applies if the prin-
cipal was known, but not if he was unknown.

We have already shown that there is no difficulty in sustaining an
action upon an express verbal contract against or in favor of an un-
known principal, while if the principal was known it is to be presumed
that he was the contracting party, unless it clearly appears that the
agent contracted on his own account, and that witli a knowledge of
the facts the opposite party elected to look to the agent. Now, so far
as the question of election is concerned, it is the same whether the
contract was verbal or written, except as a written contract may fur-
nish evidence of an election to deal exclusively with the agent whose
name was inserted in it. But does it not furnish conclusive evidence
of such election? Is parol testimony admissible for the purpose of
charging a principal upon a written contract made in the name of his
agent? In order to determine this question, it may be useful to ascer-
tain the reason for the rule of evidence to which we have referred, and
whether it actually calls for the rejection of such testimony, either in
the case of a known or of an unknown principal, or of both. The
reason assigned by Lord Coke is, that " it would be inconvenient that
matters in writing, made by advice and on consideration, and which
fully impart the certain truth of the agreement of the parties, should
be controlled by averment of the parties to be proved by the uncertain
testimony of slippery memory," Countess of Rutland's case, 5 Rep.
26a. In other words, the reason for the rule is, that the written
instrument furnishes the best evidence of the actual agreement ; that
it is more probable that the contract which the parties intended to
make can be correctly ascertained from what was written than from
the testimony of witnesses. But the party seeking to bring in an
unknown principal starts by admitting that the contract was writter
according to the agreement; that his intention was to look to the
agent alone, just as he would admit his intention was if the contract
had been merely verbal. How could he deny, whether the contract
was verbal or written, that he intended to look to the agent, if he did
not know that any principal existed? The spirit of the rule, therefore,
is not violated by giving him a right, in the case of a written as in the
case of a verbal contract, to bring in tbe party who had the beneficial in-
terest in the transaction ; and this is accomplished, not by contradicting
or varying the terms of a written instrument, but by applying and
giving effect to an established rule of law.

But if the principal was known when the contract was made and
signed, the case is different. If the party who received from an agent
a written contract executed in the name of the agent, knowing that
he acted for a principal, seeks to hold the principal, it must be upon
the ground that it was intended to be and was received by him as the
contract of the principal ; because, if he received it as the contract of

SECT. I.] CHANDLER V. COE. 577

the agent, knowing that he was an agent, that constitutes a conclu-
sive election to look alone to the agent. Parol evidence, therefore, if
admitted in such a case, does show that the contiact which the parties
intended to mal<e was not what the writing indicates, but different. It
shows that an error was con)initted in writing it. Its admission, there-
fore, allows "the uncertain testimony of slippery memory" to come in
and control what the parties have deliberately written and signed, and
this is inadmissible because the writing furnishes the best evidence of
the actual contract. . . .

In accordance with these views, no judgment can be rendered upon
the findings of the jury in this case. Although the jury found that
Dunn in making the contract did act as the agent of the defendants,
yet the plaintiff having testified and his counsel insisted that when it
was made he was fully informed by Dunn of his agency, and having
prevented the judge from submitting that question to the jury, we
might, were there no other point in the case, assume that to be so, and
order judgment for the defendants, upon the ground that the written
contract, as it cannot be contradicted or varied by parol testimony,
furnishes conclusive evidence of an election by the plaintiff to look to
Dunn alone as the other contracting party ; but the plaintiff, as was
shown at the commencement of this opinion, was entitled to a verdict
if the contract was entered into by Dunn, as agent for the defendants,
in his own name as their business name. If that was so, it is imma-
terial whether the plaintiff was or was not informed of the agency.
The judge therefore erred in not submitting that question to the jury,
unless this was waived by the plaintiff. The defendants claim that
the plaintiff took no such position at the trial ; but the plaintiff insists
that he did distinctly take the position at the trial, and that the re-
served case expressl}' so states. Whether the language of the reserved
case will bear such a construction is not ver^* clear, but it is evident
that this may be an important question between these parties, and that
the case was tried by counsel under a misapprehension of the law ; and,
after some hesitation, we have concluded that we ought to hold the
trial to have been a mistrial in this respect, and, before ordering judg-
ment for the defendants, to give to the plaintiff an opportunity to go
to the jurj' upon the question whether the contract was entered into
by Dunn as agent for the defendants in his own name as their business
name. On the other hand, although Dunn, being called by the defend-
ants, testified that he gave the plaintiff no information in regard to
the agenc}' — in fact, that none existed — and the jury have found that
Dunn in making the contract did act as the agent of the defendants,
this court is not at liberty to assume that the testimony of Dunn upon
this point was true and that of the plaintiff untrue, for the purpose of
ordering judgment in favor of the plaintiff against the defendants as
undisclosed principals. Therefore, in the view we take of the law, if
we assume the findings of the jur^' to be correct, this case is peculiar
in this, that the defendants were not entitled to a verdict, unless the

578 GADD V. HOUGHTON. [CHAP. IV.

testimony of their agent, who was called by them as a witness, was
false ; and the plaintiff, so far as the case rests on the relation of prin-
cipal and agent alone, was not entitled to a verdict, unless his own
testimony was false, although he may have been entitled to it on
another ground. Case discharged^

GADD V. HOUGHTON and another.

Court of Appeal. 1876.

[1 Ex. D. 357.]

This was an action for non-delivery of oranges sold by the defend-
ants to the plaintiff. At the trial before Pollock, B., at the Liverpool
spring assizes, 1875, the following facts were proved : The plaintiff, a
fruit merchant in Liverpool, having had some communication with the
defendants, who were fruit broliers in Liverpool, as to the purchase of
oran<Tes with the brand of James Morand ^z Co., wrote to the defend-
ants on the 4th of November, 1374, as follows: "Please telegraph
out an order on my account for 2000 cases Valencia oranges (all 420s)
of the brand James Morand & Co. Shipment from commencement of
season to not later than the 7th of December next, at 12s. 9c?. per case,
f. o. b." The defendants accordingly telegraphed to James Morand &
Co. at Valencia, in Spain, that they had this offer, and having on the
7th of November received a reply by telegram from Morand «& Co.
that they accepted the offer, the defendants, on the 9th of November,
wrote to the plaintiff as follows: "Mr. George Gadd. We have

1 In Traeman v. Loder, 11 Ad. & E. 589, 594-595 (1840), Lord Denman, C. J.,
delivering the opinion of the court, said : —

" If then, the defendant chose to appoint an agent to carry on trade for him in the
name of Higginbotham, he clearly authorized that person to do all that could be nec-
essary for him so to carry it on ; among other things, to employ a broker to sell for
him ;" and it does not lie in his mouth to deny that the name of Higgiubotham so
inserted by the broker in the sold note is the defendant's own name of business.
Then, as the bought and sold notes, where they are not inconsistent, form the contract,
here is a good compliance with the Statute of Frauds in the two instruments signed
bv the broker, one containing the name of the plaintiffs, the other the trade name by
which the defendant thought proper to instruct his agent to deal for him.

" Among the ingenious arguments pressed by the defendant's counsel, there was
cue which it mav be fit to notice ; the supposition that parol evidence was introduced
to vary the contract, showing it not to have been made by Higginbotham, whose name
is inserted in it, but by the defendant, who gave him the autliority. Parol evidence is
always necessary to show that the party sued is the person making the contract and
bound by it. Whether he does so in his own name or in that of another, or in a feigned
name, and whether the contract be signed by his own hand or by that of an agent, are
inquiries not different in their nature from the question who is the person who has
just ordered goods in a shop. If .he is sued for the price, and his identity made out,
the contract is not varied by appearing to have been made by him in a name not
his own." — Ed.

SECT. I.J GADD V. HOUOHTON. 579

this day sold to you on account of James Morand & Co., Valencia,
2000 cases Valencia oranges (all 420s.) of the brand 'James Morand
& Co.,' at 126'. dd. per case, free on board. Shipment from commence-
ment of season, to not later than 7th of December next. Payment as
usual. J. C. Houghton & Co." The contract not having been per-
formed, the plaintiff brought this action. The defendants' counsel con-
tended that upon this contract Morand & Co., and not the defendants,
were liable, and they called several brokers and other witnesses, who
gave evidence of usage in Liverpool as to the non-liability of l)rokers
upon contracts in the present form, but the evidence became immaterial
in the view taken of the contract by the Court of Appeal. A verdict
was then entered for tlie defendants, witli leave to the plaintiff to move
to enter it for him, on the ground that the defendants were personally
liable on the contract, the damages, if necessar}-, to be settled b}' a
referee.

An order Jilsi having been obtained accordingl}', was, after argu-
ment on the 11th of January, 187G, made absolute b}- the Exchequer
Division (Kelly, C. B., Pollock and IIuddleston, BB.), on the ground
that the case was undistinguishable from Paice v. Walker, L. R. 5 Ex.
173.

From this decision the defendants appealed.

Benjamin, Q. C. and Bigh<mi, for tlie api)cllants.

HemcheJl^ Q. C, and 31' Connelly for the plaintiff.

James, L.J. I tliink the judgment of the Exchequer Division ought
to be reversed. The case is not, in ni}' opinion, in any way governed
"by Paice v. Walker, for whatever the decision was in that case upon
the words " as agents," the words in the present case " on account of,"
are not at all ambiguous, and it would be impossible to make them
words of description. The ratio decidendi in Paice y. Walker was that,
having regard to the contract and all the circumstances of the case,
the woi'ds "as agents" must be considered as merelj' describing or
intimating the fact that the defendants were agents, and did not
amount to a statement that the}' were making a bargain " on account
of" another person. Those are the ver}' words used in the present
case. When a man says that he is making a contract "on account of"
some one else, it seems to me that he uses the verj' strongest terms
the English language affords to show that he is not binding himself,
but is binding his principal. As to Paice v. Walker, I cannot conceive
that the words "as agents" can be properly understood as implying
merel}' a description. The word "as" seems to exclude that idea. If
that case were now before us, I should hold that the words "as agents "
in that case had the same effect as the words " on account of" in the
present case, and that the decision in that case ought not to stand. I
do not dissent from the principle that a man does not relieve himself
from liabilit}' upon a contract b}' using words which are intended to be
merely words of description, but I do not think the words " as agents"
were words of description.

580 GADD V. HOUGHTON. [CHAP. IV.

Mellish, L. J. I am of the same opinion. The question is whether
on the true construction of this contract, Houghton & Co. sold the
goods themselves or entered into a contract on behalf of Morand &
Co. The language used must be interpreted according to its plain and
natural meaning. As is said in the note to Thomson v. Davenport, 2
Sm. L. C. 6th ed. 344, when a man signs a contract in his own name
he is prima facie a contracting party and liable, and there must be
something very strong on the face of the instrument to show that the
liability does not attach to him. But if there are plain words to show
that he is contracting on behalf of somebody else, why are we not to
give effect to them ? I can see no difference between a man writing
"I, A. B., as agent for C. D., have sold to you," and signing "A. B. ;"
and his writing, " I have sold to you," and signing " A. B. for C. D.
the seller." When the signature comes at the end you apply it to
everything which occurs throughout the contract. If all that appears
is that the agent has been making a contract on behalf of some other
person, it seems to me to follow of necessity that that other person is
the person liable. This is one of the simplest possible cases. How
can the words "on account of Morand & Co." be inserted merely as
a description? The words mean that Morand & Co. are the people
who have sold. It follows that the persons who have signed are
merely the brokers and are not liable. I agree also that the circum-
stances of Paice v. Walker are to be distinguished from the present,
and that the judgment of the Exchequer Division ought to be reversed.

Baggallay, J. A., concurred.

QuAiN, J. The ease appears to me plain. It seems extraordinary
that there should be any doubt whether this binds the principal or the
agent. It is said that in order to relieve the agent from liability, he
must sign " as agent" or " on account of" Morand & Co. I cannot
see the necessity for adding those words to the signature if you can
gather from the contract that he makes it on account of Morand & Co.
Those words at the end of the signature would add nothing to what
has been stated in the body of the contract. The agent, therefore,
does not render himself personally liable by not adding them.

Archibald, J. I am of the same opinion. The usual way in which
an agent contracts so as not to render himself personally liable is by
signing as agent. That, however, is not the only way, because, if it
is clear from the body of the contract that he contracted only as agent,
he would save his liability. No words could be plainer than the words
" on account of Morand &, Co." to show that the defendants contracted
only as agents.

I also agree that Paice v. Walker is to be distinguished from this
case. Jxuhjtnent reversed and rule discharged.^

1 See Hoogh v. Manzanos, 4 Ex. D. 104 (1879), s. c. 48 L. J. n. s. Ex. 398. — Ed.

SECT. I.] BYINGTON V. SIMPSON. 581

BYINGTON AND ANOTHER V. LUCY SIMPSON.
Supreme Judicial Court of Massacuusetts. 1883.

[134 Mass. 169.]

Holmes, J. This is a suit to recover a balance due uuder a building
contract. The contract was in writing, and purported on its face to be
made by the plaintiffs with J. B. Simpson. It provided that the work
should be done under the direction of J. B. Simpson, agent, and was
signed "J. B. Simpson, agent." J. B. Simpson was in fact contract-
ing as agent for the defendant, his wife, and this was known to the
plaintiffs at the time the contract was made.

The defendant contends that she was not bound b}- this contract
under the foregoing circumstances. The fact that the contract pur-
ports to be tuider seal, although not sealed, has not been relied on as
affecting the case, which, especially in view of the inartificial nature of
the instrument, it ought not to do ; but the argument is, that, inasmuch
as tiie plaintiffs knew of the existence of a principal before the con-
tract was made, and then were contented to accept a written agree-
ment which on its face bound the agent, they must be taken to have
dealt with, and to have given credit to, the agent alone ; just as, upon
a subsequent discover^' of the undisclosed principal, they might have
determined their right to charge him b^' a sufficient election to reh-
upon the credit of the agent.

We are of opinion that the plaintiffs' knowledge does not make their
case an}' weaker than it would have been without it. Whatever the
original merits of the rule, that a partv not mentioned in a simple
contract in writing may be charged as a principal upon oral evidence,
even where the writing gives no indication of an intent to bind anj'
other person than the signer, we cannot reopen it, for it is as well
settled as any part of the law of agenc}'. Huntington v. Knox, 7 Cush.
371, 374; Eastern Railroad v. Benedict, 5 Gray, 561; Lerned v.
Johns, 9 Allen, 419 ; Hunter r. Giddings, 97 Mass. 41 ; Exchange
Bank v. Rice, 107 Mass. 37, 41 ; National Ins. Co. v. Allen, 116 Mass.
398 ; Higgins r. Senior, 8 M. & W. 834, 844. And it is evident that
words which are sufficient on their face, b}- established law, to bind a
principal, if one exists, cannot be deprived of their force bj- the cir-
cumstance that the other party relied upon their sufficiencv for that
purpose. Yet that is what the defendant's argument comes to. For
the same parol evidence that shows the plaintiffs' knowledge of the
agency ma}- warrant the inference that the plaintiffs meant to have
the benefit of it, and to bind the principal.

The only reasons which have been offered for the admissibility of
oral evidence to charge the alleged principal confirm this conclusion.
That suggested in Higgins v. vSenior, ubi si/pra, is the same which is
usual!}- given for the liability of a master for his servant's torts, that

582 BYINGTON V. SIMPSON. [CHAP. IV.

the act of the agent is the act of the principal (see 1 Bl. Com. 432 ;
Laugher v. Pointer, 5 B. &, C. 547, 553 ; WilUams v. Jones, 3 H. &, C.
602, 609) ; the meaning of which, in its latter application at least, is,
as was stated long ago, that master and servant are " fained to be all
one person." West's Symboleograph}-, Part I. sec. 3, " Of the Fact of
Man." The most plausible explanation which has been attempted pur-
sues the same thought more clearl}'. It is said that the principal is
liable '' because he is taken to have adopted the name of the [agent] as
his own, for the purpose of [the] contract." 2 Smith Lead. Cas. (8th
ed.) 408, note to Thomson v. Davenport; Trueman v. Loder, 11 Ad. &
El. 589, 595 ; S. C. 3 P. & Dav. 267, 271. If this is to be accepted,
there is obviously the strongest ground for saying that the principal
has adopted the agent's name for the purposes of a given contract when
it is shown that both parties have acted on tliat footing.

The most that could fairly be argued in any case would be, that,
under some circumstances, proof that the other party knew of the
agenc}', and yet accepted a writing which did not refer to it, and which
in its natural sense bound the agent alone, might tend to show that the
contract was not xnade with an}' one but the part}- whose name was
signed ; that the agent did not sign as agent, and was not understood
to do so, but was himself the principal. But these are questions of
fact, and, as a matter of fact, it is obvious, ami it is found, that the de-
fendant was the principal, and that the contract was made with her.

The objection that two persons cannot be bound by the same signa-
ture to a contract, if sound, would be equally fatal when the principal
was not known. There is a double obligation, although there can be
but one satisfaction.

Our decision is in accordance with a thoroughl}' discussed English
case which went to the Exchequer Chamber, and with the statement of
the law by Mr. Justice Story there cited. Calder v. Dobell, L. R. 6
G. P. 486 ; Story Agency, § 160 a.

Judgment for the plaintiffs affirmed.

J. H. Benton., Jr., for the defendant.

S. L, Poicers ( G. W. Sanderson with him) , for the plaintiffs.

SECT. II.J WILKS V. BACK. 583

SECTION II.

Sealed Instruments.

WILKS AND ANOTHKR V. BACK.

King's Bench. 1802.

[2 East, \r2.]

The defendant being indebted upon an account to the plaintiffs
Wilks and Browne, who were formerly in partnersliip as millers, it
was agreed to refer the matter to arbitration ; and accordingly bonds of
submission were entered into by the parties as after mentioned ; and
the arbitrators by their award dated 14th August, 1801, reciting that b}'
two several bonds dated loth June, 1801, under the respective hands
and seals of M. Wilks and J. Browne, millers, and late partners, and of
W. Back, the parties became mutually bound to abide the award, &c.,
proceeded to award the sum of £407 9*'. Id. to be due on the balance of
accounts from the defendant to the plaintiffs, &.Q.

Upon a motion to set aside the award, the question was at last
resolved into this, whether Wilks had competent authorit}' to bind
Browne, his late partner, by executing the bond of submission for him.
As to which it appeared that by an indenture dated 28th August, 1799,
between Wilks and Browne, the latter for the considerations therein
mentioned did constitute and appoint Wilks to be his attorney irrevocable
to ask, demand, sue for, compound, and receive all the debts and
effects of the said partnership ; with full power for Wilks to sign, seal,
and deliver in the name of Browne an}- deed, &c., whatsoever necessary
for the purposes therein mentioned, &c. By virtue of this authority
Wilks executed the bond of submission in question in this form :
"Mathias Wilks" (L. S.). "For James Browne, Mathias Wilks"
(L. S.), and it was sealed and delivered by Wilks for himself, and also
for his late partner Browne ; but the latter was not present at the
time.

Garroic and Parnther^ in showing cause against the rule, did not dis-
pute that according to Combe's case, 9 Rep. 76 b., where any has
authority, as attorney, to do an act, he cannot do it in his own name,
but in the name of him who gave the authority. But they con-
tended that here the sealing and delivery was done by Wilks in the
name of Browne as well as of himself, which he had authorit}- to do by
virtue of the power of attorney- of August, 1799, and that the signing of
his own name twice was not material, as he also signed the name of
Browne, and declared that it was done for him. The form of words
used cannot invalidate the act where the authorit}' is sufficient to
warrant the act done. If there had been onl}- one seal, 3'et if the

584 WILKS V. BACK. [chap. IV.

iustrument were sealed and delivered for himself and his partner, he
having authorit}' so to do, it would have been sufficient, aceording to
the case of Ball v. Duusterville, 4 T. R. 313. It is true that was done
in the presence of the other partner; but that was only material in that
ease, as showing that it was done bv his particular authority, and here
was a special authority by deed to do the act.

J^rskine and Comyn, contra. It is clear from Harrison v. Jackson,
7 T. R. 207, that one partner cannot as such bind another by deed.
Then if the authorit\- be derived from tlie power of attorne}-, Wilks
ought to have executed it in the name of Browne the principal, and not
in his own, according to what was said in Combe's case, and confnined
b}' Lord C. B. Gilbert in 4 Bac. Abr. 140, and by Lord Kenyon in
White V. CuN'ler, 6 T. R. 177. So in Frontin v. Small, 2 Lord Raym.
1418, s. c. 1 Str. 705, a lease made by an attorney in her own name,
though stated to be made "for and in tiie name of" the principal, was
holden void, and that no action of covenant lay thereon. Now here it
was signed by Wilks " for Browne;" whereas the signature ought to
have been in the name of Browne, though made by Wilks. Therefore
as Browne would not be bound bj- the award, it is void for want of
mutuality.

Grose, J. No doubt the award must be mutual, and for this pur-
pose the bond must be executed b}' Browne as well as bj- Wilks ; but
this is a sufficient execution b}' both. I accede to the doctrine in all
the cases cited, that an attornej' must execute his power in the name
of his principal, and not in his own name ; but here it was so done, for
where is the difference between signing J. B. by M. W. his attorney
(which must be admitted to be good), and M. W. for J. B. ; in either
case the act of sealing and delivering is done in the name of the princi-
pal and b}' his authority. Whether the attorney put his name first or
last cannot affect the validity of the act done.

Lawrence, J. No doubt, in point of law, the act done must be the
act of the principal, and not of the attorney who is authorized to do it.
The whole argument has turned upon an assumption of fact that this
was the act of tlie attorney, which is not well founded. This is not like
the case in Lord Raymond's Reports where the attorney had demised to
the defendant in her own name, which she could not do ; for no estate
could pass from her, but onl}- from her principal. But here the bond
was executed b\' Wilks for and in the name of his principal ; and this
is distinctl}' shown b}* the manner of making the signature. Not that even
this was necessary to be shown ; for if Wilks had sealed and delivered
it in the name of Browne, that would have been enough without stating
that he had so done. However, he first signs his own name alone
opposite to one seal to denote the sealing and deliver}' on his own
account, and then opposite the other seal he denotes that the sealing
and delivery was for James Browne. There is no particular form of
words required to be nsed, provided the act be done in the name of the
principal.

SECT. II.] TAFT V. BREWSTER. 585

Lie Blanc, J. Wilks first signed it in his own name, as for himself,
and then to denote that the act was also done in the name of Browne,
he signed it again for James Browne. I cannot see what difference it
can make as to the order in which the names stand.

Hule discharged}

TAFT /•. BREWSTER and others.
Supreme Court of New York. 1812.

[9 Johns. 334.]

This was an action brought against the defendant and Thaddeus
Loomis and Joseph Coats, on a bond dated the 16th of April, 1810,
by which the defendants, " by the name and description of Jacob
Brewster, Thaddeus Loomis, and Joseph Coats, trustees of the Baptist
Society of the town of Richfield," acknowledged themselves bound to
the plaintiff in the sum of |>3,600, to be paid, &c., conditioned, that if
the defendants, as trustees of the Baptist Society of the town of Rich-
field, their heirs, &c., should pay the plaintiff the sum of $1,800, with
interest, at the several times therein mentioned, &c. The bond was
signed " Jacob Brewster, Thaddeus Loomis, and Joseph Coats, trus-
tees of the Baptist Society of the town of Richfield," and sealed by
them respective!}-.

The plaintiff assigned two breaches: 1. That after the making the
bond, &c. , a large sum of money, to wit, $126, being the interest for
one year then elapsed, was then due and owing; and, 2. That another
large sum of money, to wit, the sum of $1,100, became due, and was
owing, to the defendants on the 1st of June, 1811, which, with the $126,
was still in arrear and unpaid.

The defendants, after craving oyer of the bond and condition, de-
murred, and assigned for causes of demurrer: 1. That the bond was
executed by the defendants in a corporate and not in their individual
capacity ; 2. That the declaration was double, in assigning two distinct
breaches of the condition of the bond ; and, 3. That in assigning the
breaches, it is not said " according to the statute," &c.

The plaintifT joined in demurrer, and the same was submitted to the
court without argument.

Per Curiam. The bond must be considered as given by the defend-
ants in their individual capacities. It is not the bond of the Baptist
Church ; and if the defendants are not bound, the church certainly is
not, for the church has not contracted either in its corporate name or
by its seal. The addition of trustees to the names of the defendants
is, in this case, a mere descriptio personarum. But there is one special

1 Ace. : Mussey v. Scott, 7 Cash. 215 (1851). — Ed.

586 STINCHFIELD V. LITTLE. [OIIAP. IV.

cause of demurrer well taken, and that is, that the declaration is double,
in assigning two distinct breaches.^ . . . Judgment must, therefore,
be given for the defendants, with leave, nevertheless, to the plaintiff to
amend on the usual terms.

STINCHFIELD v. LITTLE.
Supreme Court of Maine. 1821.

[1 Me. 231.]

In an action of covenant upon the issue of 7ion est factum, the plain-
tiff offered iu evidence the deed declared on, m hich was in these words :
"Know all men by these presents, that I, Josiah Little of, &c., b}' vir-
tue of a vote of the Pejepscot Proprietors, passed on the first da}' of
September, 1784, authorizing and appointing me to give and execute
deeds for and in behalf of said proprietors, for and in consideration of
the sum of thirty-seven pounds to me in hand paid by Thomas Stinch-
field of, &c., the receipt whereof I do hereby acknowledge, have given,
granted, released, conve^'ed, and confirmed unto him the said T. S., his
heirs and assigns forever, two hundred acres, &c. To have and to
hold the above granted and bargained premises with all the privileges
and appurtenances thereof to him the said T. S. his heirs and assigns
forever, as an absolute estate of inheritance in fee simple forever :
hereby covenanting in behalf of said proprietors, their respective heirs,
executors, and administrators to and with the said T. S. his heirs and
assigns to warrant, confirm, and defend him and them in the possession
of the said granted premises, against the lawful claims of all persons
whatsoever. In testimon}' that this instrument shall be forever here-
after acknowledged by the said proprietors as their act and deed, and
be held good and valid by them, I, the said Josiah Little, by virtue of
the aforesaid vote, do hereunto set m}' hand and seal this nineteenth
da}- of February," &c., with the defendant's name, and a seal. To
this the defendant objected that the deed and the covenants therein
were the deed and covenants of the Pejepscot Proprietors, and not of
the defendant ; and so not proving tlie declai'ation. And Thacher, J.,
before whom the cause was tried, thereupon directed a nonsuit, with
leave for the plaintiff to move that the nonsuit should be set aside
and the action proceed to trial, if the Court should be of opinion that
the deed and covenants therein were the deed and covenants of the
defendant.

Belcher and H. Williams., for the plaintiff.

Little and Longfelloio, for the defendant. Proprietors of lands, in-
corporated b}' the provisions of our statutes, have no common seal, and

1 The omitted passage deaLs witli duplicity only. — Ed.

SF.CT. II.] STINCHFIELD V. LITTLE. 587

must always grant by vote, or convej- by deed, executed b}- agent or
attorney authorized for that purpose. . . .

Preble, J. In this case two questions are presented for the con-
sideration of the Court. 1. Is the deed dechired on the deed of the
Pejepscot proprietors? 2. Admitting it not to be deed of the Pejep-
Bcot proprietors, is it the deed of Josiah Little, the defendant?

Where a contract is entered into or a deed executed in behalf of the
government by a duly authorized public agent, and the fact so appears,
notwithstanding the agent may have affixed his own name and seal, it
is the contract or deed of the government, who alone is responsible,
and not of the agent. Unwin v. Wolseley, 1 D. «&; E. G74 ; Mabeath v.
Haldimand, id. 172; Hodgson v. Dexter, 1 Cranch. 345; Dawes v.
Jackson, 9 Mass. 490; Sheffield v. Watson, 3 Caines, 69. But the
same rule does not obtain in relation to the agent or attorney' of a pri-
vate person or corporation. It seems to have been settled or recognized
as law in courts of justice b}' judges, distinguished for their wisdom and
learning, in successive generations and under different governments,
that in order to bind the principal or constituent and make the instru-
ment his deed, the agent or attorney must set to it tiie name and seal
of the princii)al or constituent, and not merely his own. In the year
1614 it was resolved in Combes' Case, 9 Co. 76, that "when any has
authorit}- as an attorney to do any act, he ought to do it in his name
who gives the authority, — and the attorney cannot do it in his own
name, nor as his proper act, but in the name, and as the act, of him
who gives the authority." There, however, the act done by attor-
ney was the surrender in court of certain copyhold lands, in doing
which, as is well known, neither signing nor sealing constituted an}'
part of the ceremony. A case where a question, relating to the receiv-
ing of such a surrender was agitated, came before the Court of K. B.
in 1701, — Parker v. Kett, 1 Ld. Raym. 658, — in which Ld. C.J. Holt
seems to be dissatisfied with the rule in Combes' Case, and expresses
an opinion that, though the act were done in the attorney's own name,
provided he had sufficient authority, it would be good without reciting
his authority', though not so regular and formal. The rule, however, as
laid down in Combes' Case, is cited by Ld. Ch. Baron Comyn, as good
law. Com. Dig. Attorney (c. 14) and 1 Rol. 330, I 35, is quoted as
supporting it. Upon the same authority it is stated, that if an attorney
has a power b}' writing to make leases, if he makes a lease in his own
name, it will be void. This latter principle was recognized as law in
1726 in Frontin v. Small, 2 Ld. Raym. 1418. In that case also the
attorney in the body of the instrument for, and in the name, and as
attorney of the principal, demised, &c. ; but the court held, that a per-
son empowered by warrant of attorney' to execute a deed for another,
must execute it in the name of the principal. In conformity with this
decision is the language of Ld. C. J. Kenyon in 1795, in White v. Cuy-
ler, 6 D. & E. 176. "In executing a deed for the principal under a
power of attorney, the proper way is to sign in the name of the prin-

588 STINCHFIELD V. LITTLE. [CHAP. IV.

cipal." And at a still later period, in 1802, in Wilkes v. Back, 2 East,
142, the doctrine, that an attorney must execute his power in the name
of his principal, and not in his own name, was recognized by the whole
Court as sound law. The same rule seems to obtain also in the courts
of law in this country. Thus in Simond v. Catlin, 2 Caines, 66, C. J.
Kent not only admits the authority of Frontin v. Small, but adds,
*' when a man acts in contemplation of law by the authority and in
the name of another, if he does an act in his own name, although
alleged to be done by him as attorney, it is void." So also in Fowler
V. Shearer, 7 Mass. 14, C. J. Parsons, in delivering the opinion of tlie
Court, says: "If an attorney has authority to convey lands, he must
do it in the name of the principal. The conveyance must be the act of
the principal, and not of the attorne}' ; otherwise the conveyance is
void. And it is not enough for the attorney in the form of the convey-
ance, to declare that he does it as attorney, for, he being in the place
of the principal, it must be the act and deed of the principal, done and
executed by the attorney in his name." This, it is manifest, is only a
combination of the principles of the two cases of Combes and Frontin
V. Small, and as such, is a recognition on the part of the Court of the
law as laid down in those cases. But in the case of Elwell v. Shaw, 16
Mass. 42, this subject was again brought in review before the Court.
There the deed in question commenced with a recital at full length of
the power of attorney from Jonathan to Joshua Elwell ; and the attor-
ney, professing to act only in virtue of that power, proceeds to convey,
&c., and then concludes, "In testimony whereof, I have hereunto set
the name and seal of the said Jonathan," &c., but affixes his own name
and a seal. In delivering their opinion the Court say, it is impossible
that any one should doubt the intention of the parties, but, yielding to
the weight of the authorities, they held the deed not to be the deed of
Jonathan. Now, when we advert to the deed under consideration, we
find the case of Elwell v. Shaw a much stronger one than the present.
There the attorney professing to set the name and seal of the principal,
set a seal, but signed his own name. Here the attorney did not even
profess to set the name or seal of the principal, but professedly as well
as actually, set his own. It has indeed been intimated in argument
that the case of Elwell v. Shaw is an extreme one, bordering at least
exceedingly near on the line. Be it so. All cases bordering exceed-
ingly near on the line are extreme cases. We do not rest the decision
of this cause upon that case merely, however safely we might do so, but
upon well-settled and established principles in other cases which have
been too long and too often recognized to be now called in question.
Applying those principles to the case at bar we are of opinion that the
deed in question is not the deed of the Pejepscot proprietors.

This is not the case of a deed good in point of form but void for
want of power in the person assuming to act as attorney. In such a
case, whether the attorney is bound by the instrument itself, or only
responsible in an action on the case, it is not necessary for us now to

SECT. II.] STINCHFIELD V. LITTLE. 589

consider. For the purpose of this inquiry, and in the form in which
the question is presented for consideration, it is granted that Little had
suflicient authority- to bind the Pejepscot proprietors. If he had, prop-
erly exercised the powers confided to him, it will be readily admitted
he could not have been made personally responsible whatever injury the
plaintiff might have suffered for any breach of the covenants contained
in the deed. It would then have been the deed of the Pejepscot pro-
prietors and not Little's ; whereas as the case now stands, it is not
their deed, but his own. Thus C. J. Parker, in Stackpole v. Arnold,
11 Mass. 27, " It is also held that, whatever authority the signer may
have to bind another, if he does not sign as agent or attorney, he binds
himself and no other person." See also Mahew v. Prince, id. 54.
So in Afridson v. Ladd, 12 Mass. 173. "It is not sufficient that a per-
son, in order to discharge himself from a promise in writing, should
show that he was in fact the agent of another, but it should be made to
appear that he treated as agent, and actually bound his principal by the
contract." Nor is it sufficient that the agent describe himself in the
deed or contract, as acting for, and in behalf, or as attorney of the prin-
cipal, or as a committee to contract for, or trustees of a corporation,
&c. ; for if he do not bind his principal, but set his own name and seal,
such expressions are but designatio personce^ — it is his own act and
deed, and he is bound personally'. Fowler ?'. Shearer, supra; Appleton
V. Binks, 5 East, 148 ; Tippets v. Walker, 4 Mass. 595 ; Tucker v.
Bass, 5 Mass. 164 ; Taft r. Brewster, 9 Johns. 334. See also Thacher
V Dinsmore, 5 Mass. 299 ; Barry v. Rush, 1 D. & E. 691 ; Sumner i\
Williams, 8 Mass. 162; Long v. Colburn, 11 Mass. 97. Besides, since
the deed cannot propria rigor e operate as the deed of the Pejepscot
proprietors, the last clause of it might well be considered, perhaps, as
is contended by the plaintiffs counsel, under a fair construction of it,
the personal covenant of the defendant that the Pejepscot proprietors
should acknowledge that instrument to be good and valid, and equally
obligator}' on them, as though it were their own act and deed. See
Mann v. Chandler, 8 Mass. 335 ; Appleton '•. Binks, and Tippets v.
Walker, $up>ra. But without resorting to such construction, we are of
opinion that the deed is the deed of Josiah Little the defendant ; and
accordingl}' the nonsuit is set aside, and a

Neic trial granted}

* Ace: Stone i;. Wood, 7 Cow. 453 (1827). — Ed.

590 HOPKINS V. MEHAFFY. [CHAF. IV

HOPKINS V. MEHAFFY.

Supreme Court of Pennsylvania, 1824.

[11 5. <^ R. 126.]

This was a writ of error to the District Court for the cit}- and county
of Lancaster, in an action brought by Joseph Hopkins against Jolin
Mehaffy, upon the following sealed instrument : —

" Articles of agreement, made and agreed upon this nineteentli day
of October, a. d., one thousand eight hundred and thirteen, between the
president, managers, and company' of the Manchester turnpike road of
the one part, and Joseph Hopkins, of the borough of Marietta, Lancas-
ter count}', and state of Pennsylvania, of the other part, witnessoth ;
that the said Joseph Hopkins, for and in consideration of the covenants
hereafter mentioned, on the part of the president, managers, and com-
pany of the said road, doth by these presents for himself, his heirs,
executors, and administrators, covenant and agree, to and with the said
president, managers, and compan}', their successors and assigns, that
he, the said Joseph Hopkins, will at or before the first day of March
next ensuing, make and finish, in a complete, substantial, and workman-
like manner, the mason work of the bridge across the Conowago gut on
said road, at such place as the said president, managers, and company
ma}' direct, and agreeably to the plan laid down for the same ; and find
all the materials requisite for building the same ; all the stone work to
be done without mortar ; and have the two piers done on or before the
first day of February next. And the said president, managers, and
company of the Manchester turnpike road, covenant and agree, to and
with the said Joseph. Hopkins, his executors and administrators, that
the said president, managers, and company will pay, or cause to be
paid, to the said Joseph Hopkins, his executors and administrators, for
and in consideration that he shall make the mason work of said
bridge complete, and in a workmanlike manner, agreeably to the plan
laid down for the same, at or before the time above-mentioned and
agreed upon, the sum of one dollar and seventy-five cents for every
perch of mason work done, of mason measurement, as follows ; viz.,
five hundred dollars thereof as soon as the two piers are finished, and
the remainder as soon as he has the work completed as aforesaid. And
for the true and faithful performance of all and singular the covenants,
agreements, and stipulations in these presents contained, the parties
hereto bind themselves, each to the other, in the penal sum of two
thousand dollars, lawful money of Pennsylvania. In witness whereof,
the said parties to these presents have hereunto interchangeably set
their hands, and aflSxed their seals, the day and year first within
written.

" .James Mehafft. (seal.)
" Joseph Hopkins, (seal.)

SECT. II. J HOPKINS V. MEHAFFY. 591

" Signed by the president, in behalf of the president and managers of
the Manchester turnpiiie roud, and by Joseph Hopkins, on his part, in
presence of William Child."

The defendant pleaded payment, with leave, &c. ; but on the trial
altered his plea to non est factum^ by the leave of the court, and
against the consent of the plaintiff's counsel.

The errors assigned, on the return of the record to this court, were : —

1. Tliat the court permitted the plea to be altered on the trial, which
Hopkins, for the plaintiff in error, denied their right to do.

2. That the court instructed tlie jury that a suit could not be supported
against the defendant on the agreement above stated.

Gibson, J. I cannot acquiesce in the law as laid down in some of the
cases which have been cited. In general, it is true that there is a dis-
tinction between contracts that are entered into on the part of govern-
ment, b}^ its agents, and those which are entered into on the part of
individuals or corporations by those who represent them. In respect of
the first it may safely be asserted that whether tlie contract be by parol
or by deed, the public faith is exclusively relied on, whenever the agent
does not specially render himself liable. In respect of the second,
where the contract is by parol, the agent is liable only where he had no
authority to bind his principal ; but the agent of an individual or
corporation, covenanting under his seal, for the act of his principal,
although he describe himself as contracting for and on behalf of his
principal, is liable on his express covenant, whether he had the authority'
of the person whom he thus professes to bind or not. The law is thus
broadly laid down by Mr. Chitty, in his treatise on pleading, page 24,
and the autliorities which be cites full}- bear him out ; to which ma}' be
added Tippets v. Walker, 4 Mass. Rep. 595. It is somewhat remark-
able that the distinction between a parol and a sealed contract was not
taken in Randal v. Vanvechten, 19 Johns. 60, and that the authorities
cited to prove that an agent who personally covenants in behalf of his
principal, is liable onl}' in the event of there being no recourse to the
principal, directl}' prove the reverse. There is a class of cases referred
to which have nothing to do with the question. I mean those cases
where the defendant undertakes to covenant for others, as well as him-
self; and there it is settled, that if he has no authority to bind the
others, he is nevertheless bound himself; not that he incurs an eventual
liability in consequence of the others being discharged, but he remains
bound as he was originally, the instrument being his several deed. It
is unnecessary, therefore, to inquire whether the plaintiff might have an
action of assumpsit against the principal, in consequence of the existence
of a parol authority to the agent to enter into the contract, because,
whether he may or not, the agent is liable on his express covenant.
But there is a striking and substantial difference between the covenant
of an agent who describes himself as contracting for his principal, and
the covenant of a principal, through the means, and by the instrumen-
tality, of an agent. The first is the individual covenant of the agent,

592 HOPKINS v. MEHAFFY. [CHAP. IV.

the second is the individual covenant of the principal ; and in this
respect the case at bar differs from Randal v. Vanvechten, in which the
distinction seems not to have been adverted to. No decision can be
found in support of the position that what appears on the face of the
deed to be the proper covenant of the principal, but entered into
through the agency of an attorney (which, by-the-bye, is the legitimate
form of the instrument where the attorney' is not to be bound), shall be
taken to be the proper covenant of the attorne}", wherever he had not
authoiity to execute the deed. How could he be declared against? If
in the usual and proper manner of pleading it were alleged that the
agent had covenanted, it would appear bj' the production of the instru-
ment that he had not, but that his principal had covenanted through his
means ; which, on non est factum being pleaded, would be fatal. This
is precisely the case before us, except that it is not quite so strong. In
the body of the instrument the covenants are stated as if the3' were
made b}' the corporation directly with the plaintiff, without the agenc}'
of any one, the defendant not being named, but merely' signing and
sealing it with his own seal as the deed of the corporation, which I
readily admit it is not. Now to avoid the difficulty which I have just
mentioned, the plaintiff, in declaring, does not in the usual way set
forth the substance of the covenants, but alleges that, by certain articles
of agreement between the parties, it was covenanted "as follows;"
and then sets out the articles according to their tenor, assigning for
breach that the defendant had not paid, &c. A demurrer would un-
questionabl}' have answered the purpose as well as the plea of non est
factum, for the declaration sets forth no covenant of the defendant, and
consequently no cause of action. But the paper is not the defendant's
deed. He sealed and delivered it undoubtedly ; but there is something
more than sealing and delivering necessary to a deed. It ought to
contain the proper parts of a contract ; and in this instrument there are
no obligatory words applicable to the person of the defendant. Even
the sealing and delivery were as the president, and in behalf of the
corporation. If the defendant had authority to contract for the corpora-
tion, although he has done so informally, there cannot be a doubt, that
as the work has been done, the plaintiff may have an action of some
sort against it. But he never treated on the basis of the defendant
being personally answerable ; and to permit him to maintain this action
would permit him to have, what was not in the contemplation of either
party, recourse to the person of the agent. I am therefore of opinion
that the judge who tried the cause was right in directing the jury that
the paper given in evidence was not the deed of the defendant. In
regard of the other error assigned, little need be said. Under the act
of assembly, a defendant may change his defence after the jur3' has
been impanelled, as a matter, not of indulgence, but of right, and in
this also there is no error. Judgment affirmed.'^

1 Ace. : Abbey v. Chase, 6 Cush. 54 (1850), where, at p. 56, Metcalf, J., said : " In
deciding whether the defendant has or has not bound himself, we need not decide

SECT. II.] BRINLEY V. MANN. 593

BRINLEY AND ANOTHER V. MANN.

Supreme Judicial Court of Massachusetts. 1848.

[2 Cash. 337.]

This was a writ of entry, for the recovery of certain real estate in
Dedliam, which was tried, on the general issue, before Forbes, J., to
whose rulings and instruction — a verdict being rendered for the de-
mandants — the tenant excepted.

The demandants gave in evidence a judgment rendered in their
favor, in the Court of Common Pleas for this county, against tlie New
England Silk Company, a corporation legally established ; an execution
issued in pursuance thereof dated September 2, 1845 ; and a levy,
appraisement, and other proceedings returned thereon ; from which it
appeared, that the officer, by whom the execution was served, on the
11th of September, 1845, seized thereon seven thirty-second parts of
the demanded premises ; that further proceedings in the lev}* were sus-
pended until the 10th of October, 1845, when the lev^' was completed,
and seven thirty-second undivided parts of the demanded premises were
assigned to the demandants, in part satisfaction of their judgment.

The tenant objected, that it did not appear, that the levy of the
execution was completed in due season, after it was commenced ;
whereupon the demandants gave evidence showing that the same
premises were attached on the 17th of June, 1845, on a writ in favor of
other creditors, on which judgment was subsequently obtained, and an
execution issued, which was levied on an undivided part of the premises,
on the 1st of October, 1845.

The demandants also gave in evidence a judgment recovered by
them against the New England Silk Company, in the Court of Common
Pleas for the county of Suffolk, and an execution issued thereon, upon
which seven one hundred and fiftieth parts of the demanded premises
were seized and assigned to the demandants, December 17, 1845, in
part satisfaction of such execution.

In both these levies, the appraisers certified (their certificates were
made part of the return) that, finding the premises incapable of division,
they had appraised the undivided parts set off by them, in each case, at
the several sums at which they were so assigned, but they did not
otherwise report the entire value of the whole estate. The tenant

whether he has or has not bound the company. For it does not necessarily follow that a
contract, made by an autliorized agent, which does not bind the principal, becomes the
agent's contract, and makes him answerable if it is not performed. This depends upon
the legal effect of the terms of the contract. If the agent employs such terms as legally
import an undertaking by the principal only, the contract is the principal's, and he
alone is bound by it. But if the terms of the contract legally import a per.-<onal under-
taking of the agent, and not of the principal, then it is the contract of the agent, and he
alone is answerable for a breach of it." — Ed.

594 BRINLEY V. MANN. [CHAP. IV.

objected to the levies, because the appraisers did not report the entire
value ; but the objection was overruled.

The tenant thereupon produced the evidence, upon which he relied to
show his title in the demanded premises, from which it appeared that
Christopher Colt, Jr., treasurer of the New England Silk Company,
acting under the supposed authority of certain votes of the compau}',
conveyed the demanded premises, before the seizure thereof on execu-
tion as above mentioned, by deeds of mortgage and quitclaim, to James
B. Colt, from whom, by intermediate conveyances, the estate came to
the tenant.

The demandants, among other objections to the evidence on the part
of the tenant, not necessary to be stated, objected to the validity of the
deeds to James B. Colt.

The formal parts of one of the deeds, to which the objection referred,
are as follows : —

"Know all men b}' these presents, that tlie New England Silk Com-
pany, a corporation legally established, b}' Christopher Colt, Jr.,
their treasurer, of Dedham, &c., in consideration, «&;c., do hereb}' give,
grant, sell, and convey," &c.

" In witness whereof, I, the said Christopher Colt, Jr., in behalf of
said compan}', and as their treasurer, have hereunto set m}' hand and
seal, this," &c. [Signed and sealed] "Christopher Colt, Jr., Treasurer
of New England Silk Company."

The certificate of acknowledgment stated that " Christopher Colt,
Jr., treasurer, &c., acknowledged the above instrument to be his free
act and deed."

In the other deed Christopher Colt, Jr., describes himself, in the
concluding recital, as "treasurer of the New England Silk Company,
and duly authorized for that purpose;" and, in the certificate of
acknowledgment it is stated that, " in his said capacity," he acknowl-
edged the instrument to be his free act and deed.
D. A. Simmons, for the tenant.
J. J. Clarke, for the demandants.

Metcalf. J. The demanded premises were formerly the property
of the New England Silk Company, a body corporate, and the demand-
ants claim title thereto under levies of two executions against that
company. We see no valid objection to either of those levies. The
delay in completing the levy of the first execution was warranted by the
Rev. Sts. c. 97. The appraisement of the undivided fractional part of
the estate, which was set off on the second execution, was all that the
law required of the appraisers. The objections to these levies were
therefore rightly overruled by the judge at the trial, and he rightly
instructed the jury that the demandants had a prima facie title to the
premises demanded in this suit.

The tenant also claims title under the Silk Company, through two
deeds made to James B. Colt before the demandants levied upon or
attached the demanded premises, and a deed from Colt to Humi)hrey,

SECT, ri] RHIXLEY V. MANN. 595

wlio was the tenant's immediate grantor. On examining the deeds to
Colt, we are of opinion that they conveyed no title to him. It is a rule
of conveyancing, long established, that deeds which are executed b}' an
attorney or agent, must be executed in the name of the constituent or
principal. In Combes' Case, 9 Co. 76 b., it was resolved '' that when
any lias autliority, as attorney, to do any act, he ought to do it in his
name who gives the authorit}" ; for he appoints the attorney to be in
his place, and to represent his person ; and therefore the attorney can-
not do it in his own name, nor as his proper act, but in tlie name and
as the act of him who gives the authorit}-." And in Fowler v. Sliearer,
7 Mass. 19, Parsons, C. J., says, " It is not enough for the attorney,
in the form of the conveyance, to declare that he does it as attorney ;
for he being in the place of the principal, it must be the act and deed of
the princii)ul, done and executed by the attorney in his name." This
doctrine, which was applied in Elwell v. Shaw, IG Mass. 42, and in
other cases cited b}* the demandants' counsel, and also in Berkele}- v.
Hardy, 8 Dowl. & Ryl. 102, must be applied to tlie deeds now before
us. Both of these deeds were executed b}- C. Colt, Jr., in his own
name, were sealed with his seal, and were aclvnowledged b}- him as his
acts and deeds. In one of them, it is true, he declared that he acted in
behalf of the company, and as their treasurer ; and in the other he
declared himself to be their treasurer and to be duly authorized for the
purpose of executing it. But this, as we have seen, was " not enough."
He should have executed the deeds in the name of the company. He
should also have affixed to them the seal of the compan}-, and have
acknowledged them to be the deeds of the compan}'. 1 Crabb on Real
Property, §§ 703, 705 ; 4 Kent Com. (3d ed.) 451 ; Stinchfield v. Little,
1 Greenl. 231 ; Savings Bank v. Davis, 8 Connect. 191 ; 3 Stewart on
Conveyancing, 189. If the deeds had been rightly executed in other
respects, the seal which C. Colt, Jr., affixed to each of them (namel3',
a wafer and a paper, without any stamp or impression) might have
been regarded as the seal of the compan}', according to the decisions
in Mill Dam Foundery v. Hovey, 21 Pick. 417, and Reynolds v. Glasgow
Academy, 6 Dana. 37.

The case of Warner v. Mower, 11 Vt. 385, cited by the tenant's
counsel, was decided upon a statute of Vermont, which authorizes cer-
tain corporations to convey real estate by a deed of their president^
sealed with his seal. The court, in that case, admitted that "• the form
of the deed, at common law, would not, probably, be considered good."

As nothing passed to James B. Colt by the deeds of October, 1844^
and June, 1845, he could not convey any title to Humphrey, nor
Humphrey to the tenant. We therefore need not examine the other
objections to the tenant's title, which were raised and argued by the
counsel for the demandants.

Judgment on the verdict*

596 THE NORTHWESTERN DISTILLING CO. V. BRANT. [cHAP. IV.

THE NORTHWESTERN DISTILLING COMPANY v. BRANT.
Supreme Court of Illinois. 1873.

[69 ///. 658-1

Appeal from the Circuit Court of Cook county ; the Hon. John G.
Rogers, Judge, presiding.

Messrs. Upton, BouteU & Watermayi, for tlie appellant.

Messrs. Brinulf ct Hoffman, for the appellee.

Mr. Justice Sheldon delivered the opinion of the Court: —

This was an action of covenant brought by Brant against The North-
western Distilling Company', to recover for not restoring certain prem-
ises in as good order as when it received them ; the action being founded
upon a lease commencing as follows : '•' This indenture, made this 17th
da}' of April, a. d. 1869, between Daniel R. Brant, of the cit}' of
Chicago, party of the first part, and Edward F. Lawrence, president of
the Northwestern Distilling Company, of the same place, party of the
second part." Throughout, the parties are mentioned as of the first or
second part, and the pronouns he, his, or him are everywhere used in
referruig to the party of the second part.

The covenant to restore the premises in good condition, for the
alleged breach of which the action is brought, is : " And the said party
of the second part further covenants with the said part}- of the first
part, that, at the expiration of the term, he will yield up the demised
premises to the said party of the first part in as good condition as when
the same were entered upon by the said party of the second part," &c.
It concludes, " In testimony whereof the said parties have hereunto set
their hands and seals the day and year first above written," and is
signed and sealed :

"D. R. Brant, [seal.]

" Northwestern Distilling Co., [seal.]

" By Edward Lawrence, President."

The plaintiff recovered in the court below, and the defendant ap-
pealed.

The sole question presented by the record is, whether an action of
covenant lies against the company on this lease. The whole argument
for the appellant turns upon an assumption of fact, that the covenant
was made by Lawrence, which we do not consider was well founded.
And on that assumption, it is insisted, that it cannot be shown, as has
been done by the declaration and proof, that the company intended to
make the covenant ; that that can only be done upon an application to
a court of equity to reform the contract. The only circumstance which
raises any difficulty is, that in the commencement of the lease, Law-
rence, president of the company, is described as the party of the second
part, and the covenant is by " the said party of the second part." The
contract, as claimed, is one made by a corporation, which can act only

SECT. II.] THE NORTHWESTERN DISTILLING CO. V. BRANT. 597

by its agents ; and it is apparent upon the face of the instrument, that
Lawrence does not act individually, but as president of the company
for the company.

Had he executed the instrument in his own name for the company,
it would have been a good execution by the company. Wilks et <d. v.
Back, 2 East, 142; Mussey v. Scott, 7 Cush. 21G. The conclusion of
a lease, as well as its commencement, may be looked to for the descrip-
tion of the parties ; the conclusion describes them to be those persons
who have sot their hands and seals to tlie instrument, and it is the sig-
nature and seal of the Northwestern Distilling Company which are set
thereto, not those of Lawrence. In action on a sealed instrument
which, in its commencement described Sebre Howard and Hiram
Howard as party of the first part, but which was signed by Sebre
Howard alone, and suit was brought thereon by him alone, and objec-
tion made that Hiram should have joined in the action, the Supreme
Court of the United States say : " The descriptive words in the prem-
ises of the deed declare Sebre and Hiram Howard to be the party of
the first part; but inasmuch as Hiram did not seal the deed, he never
in truth became a party to the instrument. He entered into no cove-
nant contained in it. The truth is, the descriptive words are controlled
by the decisive fact that Hiram did not seal the deed." Phil., Wilm.
and Bait. R. R. v. Howard, 13 How. 337.

The last observation applies with force to the present case. Where
a deed is made to a corporation by a name varying from the true
name, the plaintiffs may sue in their true name, and aver in the declara-
tion that the defendant made the deed to them by the name mentioned
in the deed. The New York African Society, etc. v. Varick et al., 13
Johns. 39. This court has frequently held, that where a person exe-
cuting an instrument under seal is described therein b}- a different name,
an action may be maintained against him upon the instrument, upon
averring in the declaration and making proof that he executed the
instrument, but was described therein by the name there appearing.
O'Brien v. The People, 41 111. 456 ; Garrison v. The People, 21 id. 535 ;
Graves v. The People, 11 id. 542. The averments and proof here
sufBcientl}' meet the requirements in those respects, and full}' show
that the lease was actually made to the distilling company.

In the case of Douglass et al. v. The Branch Bank at Mobile, 19 Ala.
659, a lease in the bod}' of it purported to be made by Henry B. Hol-
combe, assistant commissioner of the Branch Bank of the State of
Alabama, at Mobile, and was signed by the corporation, as in this
case ; an action on the lease in the name of the corporation was sus-
tained ; and see Eastern R. R. Co. v. Benedict et al., 5 Gra}', 561, as to
the rule in respect to unsealed instruments.

We are of opinion that the action in the present case was well
brought against the Northwestern Distilling Company, and the judg-
ment is affirmed. Judgment affirmed.

598 BKADSTKEET V. BAKER. [CHAP. IV.

BRADSTREET et al. v. BAKER et al.

Supreme Court of Rhode Island. 1884.

[14 R. I. 546.]

Covenant. On demurrer to the pleas.

Jul}' 12, 1884. Durfee, C. J. This is an action of covenant broken.
The covenant, if valid, is a covenant by which the defendants bound
themselves to receive from the plaintiffs, dealers in ice, and copartners
under the firm of the Centennial Ice Company, at Pittston, Maine, be-
tween June 1, 1878, and Oct. 1, 1878, five thousand tons of ice, and
to pay them for it at the rate of one and one half dollars per ton, and
to paj- in full in cash at said rate for all the ice remaining unshipped
Oct. 1, 1878, the ice so remaining to be the propert}' of the plaintiffs.
The defendants made default by not receiving, though the plaintiffs
were read}' to deliver, the ice according to tlie contract. The plaintiffs
sue for damages, claiming the stipulated price of the five thousand tons
as liquidated damages. The defence is : first, that the defendants are
not bound because the plaintiffs were not bound by the covenant, the
obligations thereof being mutual or dependent ; and second, that the
plaintiffs can recover only their actual damages, the stipulated damages
being manifestly designed as a penalty.

The first question is : Did the plaintifl^s bind themselves b}' the cov-
enant? The contract was not executed by the plaintiffs in person, but
it was negotiated for them and signed by their agent, J. S. Bradstreet,
who had a sufficient power of attorney under seal. The contract begins
thus : " Agreement made this fifteenth day of Februaiy, 1878, between
the Centennial Ice Company, of Pittston, Me., party of the first part,
by J. S. Bradstreet, agent, and Joseph K. Baker, of Dennisport, Mass.,
and E. C. Baker, of Providence, R. I., parties of the second part, wit-
nesseth." The stipulations contained in the body of the instrument
purport to be stipulations between "the said party of the first part"
and " the said parties of the second part," no names being given. It
concluded as follows, to wit : —

"In witness whereof the parties have hereunto aflSxed their hands
and seals the year and day first above written.

(Signed) " J. S. Bradstreet, ^^m^, [l. s.]

"J. K. Baker, [u. s.]

"E.G.Baker, [l. s.]"

The defendants contend that the execution was ineffectual because
the instrument does not contain the signatures of tlie party of the first
part by their agent, but only the signature of the agent himself Un-
doubtedly in the execution of a deed by an agent the most approved
form is for the agent to sign the name of liis principal, writing his own
name below, with the word "agent" following, and the preposition
"by" preceding it. See Citv of Providence v. Miller, 11 R. I. 272,

SECT. II.] BRADSTREET V. BAKER. 599

277, and cases there eited. But the form is not material provided it
appears on the face of the instrument that the deed was executed b^'
the principal acting through his agent and not by the agent himself.
In Wilks V. Back, 2 East, 142, an arbitration bond was given by
Mathias Wilks for himself, and under a power, for his copartner James
Browne. The signatures were affixed as follows, to wit: "Mathias
Wilks, [l. s.]." "For James Browne, Mathias Wilks, [l. s.]." The
Court of King's Bench decided that the execution was good. " Here
the bond was executed," say the Court, " by Wilks for and in the name
of his principal ; and this is distinctlj' shown by the manner of making
the signatures. Not even this was necessary to be shown, for if Wilks
had sealed and delivered it in the name of Browne, that would be
enough without stating that he had so done." The case was followed
with approval in Musse^' v. Scott, 7 Cush. 215, where the form of the
signature was " B. for A." It was also followed b\' the Supreme Court
of Vermont in McDaniels v. Flower Brook Manuf. Co., 22 Vt. 274.
There the operative clauses were in the name of the corporation " by
William Wallace, their agent ; " the covenants were in the name of the
corporation. The deed concluded, " In witness whereof we have here-
unto set our hand and seal," and the signature was, " William Wallace,
Agent for the Flower Brook Manufacturing Company." The court said
that the execution, in connection with what preceded it, must be under-
stood to be an execution in the name of the compan}'. And see to the
same effect Martin v. Almond, 25 Mo. 313. It seems to us that there
is no material distinction between these cases and the case at bar. The
case at bar would be identical with them if the words, "■ for the Centen-
nial Ice Compau}-," had been added to the signature. But those words
if added would express nothing which is not expressed without them
b}- the signature, taken in connection with the testimonium clause and
covenant which precede it. The seal is stated in said clause to be the
seal of the principals, and the hand to be their hand, evidently because
the agent signed for them. In Abbe^^ v. Chase, 6 Cush. 54, and in Ellis
V. Pulsifer et al., 4 Allen, 165, the Supreme Judicial Court of Massa-
chusetts decided that such an execution did not bind the agents, the
action being against the agents, but expressly refrained from saying
that it did not in their opinion bind the principals. See also Varnum,
Fuller, & Co. v. Evans, 2 McMullan, 409 ; Hunter's Admr's v. Miller's
Exec'rs, 6 B. Mon. 612; Bryan v. Stump, 8 Gratt. 241; M'Ardle v.
The Irish Iodine Company, 15 Ir. C. L. Rep. 146. It is true that some
of the text-books say, and some of the cases seem to impl}', that the
name of the principal must necessarily appear in the signature. But
we do not see the necessity. When A., being agent for B., signs the
deed, "" A. for B.," or " A., agent for B.," his own name is the signa-
ture, the other words being used to denote that he makes the signature
not for himself but for his principal. And surely if this be so, it is
unnecessary to use those words, if the thing which is denoted by them
be otherwise apparent.

600 BRADSTREET V. BAKER. [CHAP. IV.

The defendants cite and rel}- on Townsend v. Corning, 23 Wend. 435 ;
Townsend v. Hubbard, 4 Hill (N. Y.), 351 ; Brinley c. Mann. 2 Cash.
337; Lessee of Clarke v. Courtne}-, 5 Pet. 319, 350; but in each of
these cases the deed was not onl}' signed in the name of the agent, but
the seal was stated in the testimonium clause to be his seal. Of course
the deed could not be the deed of the principal unless the seal was his
seal. Indeed, in Townsend v. Hubbard, supra. Chancellor Walworth
declared that no particular form of words is necessary to make the deed
the deed of the principal, "provided it appears upon the face of the
instrument that it was intended to be executed as the deed of the prin-
cipal, and that the seal affixed to the instrument is his seal, and not the
seal of the attorney' or agent merely." In Bellas v. Hays, 5 Serg. & R.
427, likewise cited for the defendants, it did not appear that the seal
was the seal of the principal, there being no ttstimoniwm clause, and it
was assumed to be the seal of the agent. The agent, moreover, signed
his own name simply, without the word "agent" appended. The
counsel for the defendants quotes the words of Judge Stor\- in Lessee of
Clarke v. Courtnej-, supra, that "the law looks not to intent alone,
but to the fact whether that intent has been executed in such maimer
as to possess a legal validity." Undoubtedly. But, in his work on
Agency, Judge Stor}-, treating of this matter, says: "In all cases
where the instrument purports on its face to be intended to be the deed
of the principal, and the mode of execution of it by the agent, however
irregular and informal, is not repugnant to that purport, it would prob-
ably be construed to be the deed of the principal, especially where the
in testimonizim, clause is that the principal has thereto affixed his seal."
Story on Agency, § 153, cited in Martin v. Almond, supra. Our con-
clusion is that the plaintiffs were bound by the contract, and therefore,
that the action can be maintained.^ . . .

Judgment will therefore be given for the plaintiffs for the amount
stipulated in the covenant, and the case will stand for chancerization
under Pub. Stat. R. I. cap. 216, §§ 2, 3.

Edward D. Bassett and Frederic Hayes, for plaintiffs.

James G. Markland, for defendants.

1 A passage holding the stipulation a penalty is omitted. — Ed.

SECT. III.] LONG V. COLBURN. 601

SECTION III.

Negotiable Instruments. ■

LONG V. COLBURN.
Supreme Judicial Coukt of Massachusetts. 1814.

[II Mass. 97.]

Assumpsit on the following promissory note, viz. : "No. 273, $301.
Boston, 17th March, 1812. For value received, I promise to pay
Mr. Edward J. Long, or order, on demand, three hundred and one
dollars, with interest after four months. Pro William Gill, — J. 8.
Colburn."

The action came on for trial upon the general issue, at the last
November term in this county, before Pakkek, J. ; when, it appear-
ing in evidence that the defendant had a letter of attorney from
William Gill, who was in Europe when the note was given, and
when the action was commenced ; and that the note was for a premium
on a policy of insurance effected for Gill and on Gill's property; and
the note being, in the opinion of the judge, signed by the defendant for
Gill, — a nonsuit was directed, with libert}' to move the Court to set it
aside ; the defendant agreeing, in case the nonsuit should be set aside,
to be defai\Jtod.

Sullivan, for the plaintiff.

Crane, for the defendant.

Parker, J., delivered the opinion of the Court.

In this case, Colburn, the defendant, is declared against upon a
promissory note made b}' him ; and when the note was offered in evi-
dence to support the declaration, it appearing to be, as construed by
the judge, a promise in behalf of William Gill, a nonsuit was directed,
on the ground that the evidence offered did not support the declaration.
If the note warranted a verdict against the defendant in the present
action, the nonsuit must be set aside, and judgment be rendered for the
plaintiff upon the default of the defendant.

But we are all very clear that the nonsuit was properly ordered ; it
being certain that a verdict could not have passed for the plaintiff upon
this evidence, if the cause had gone on to trial. It appears upon the
face of the note itself, that the present defendant was not to be consid-
ered as the promisor. He signed his own name. Pro William Gill ;
and the plaintiff's remedy is against Gill, if Colburn had authority to
make the promise for him ; and if he had not, a special action of the
case might make Colburn answerable.

This authority may be by parol, by letter, by verbal directions, or
maj' even be implied from certain relations proved to exist between the
actual maker of the note and him for whom he undertakes to act ; and

602 LEADBITTER V. FARROW. [CHAP. IV.

it ma}' sometimes be inferred from the subsequent assent or ratification
of the party wlio is charged by the writing. But in all cases, the name
of the party intended to be chaiged must appear upon the instrument
itself

But in the case at bar, the evidence exhibited by the defendant,
altliough unnecessary for the purpose of discharging himself, abun-
dantly shows that he had authority to promise for Gill, and that Gill is
accountable for the contents of this note.

The counsel for the plaintiff has ingeniously endeavored to construe
this note into a promise of Colburn to pay this money for W. Gill.
But the obvious and true construction of the instrument is a promise of
Gill by Colburn, his agent or attorney. And, indeed, if the construc-
tion given by the plaintiff's counsel were correct, he could not recover
in the present action ; for he should have set forth that, Gill being
indebted, Colburn, the defendant, for forbearance, or some othei- legal
consideration, promised to pay. There is, however, no reason to sup-
pose this the nature of the transaction ; and there seems to be no diffi-
culty in the plaintiffs pursuing his proper remedy against Gill. The
nonsuit must remain. Costs for the defendant.^

LEADBITTER v. FARROW. #

King's Bench. 1816.
[5 M. S- S. 345]

Assumpsit upon a bill of exchange and the money counts. Plea,
non-assumpsit. At the trial before Lord Ellenborough, C. J., at
the London Sittings after last Hilary term, there was a verdict for the
plaintiff, damages £50, subject to the opinion of the Court upon the
following case : —

The plaintiff and defendant, at the time of drawing the bill in ques-
tion, resided at Hexham. The defendant, who was a tanner, was also
agent of the Durham bank, in which capacity he acted from July, 1812,
to July, 1815, when the bank failed. On the 8th of June, 1815, the
plaintiff sent £50 to the house of the defendant, in order to procure

1 Ace: Rice r. Gove, 22 Pick. 158 (18.39); Alexander v. Sizer, L. R. 4 Ex. 102
(1869).

In 2 M. & G. 721, n. (a), the reporters, commenting upon the signature "Robert
Blundell, by procuration of Thomas S. M. Stanley " (Blundell being the agent and
Stanley the" principal), say : " This is the ordinary commercial form of signing by pro-
curation. It is incorrect, as, in strictness, the words used would import that Blundell
was the drawer &c. of the bills through the procuration, interposition, or agency of
Stanley. The proper mode of signing by procuration is, either to use the name of the
principal only, or to sign, 'A. B. (the principal) by, or by the procuration of, C. D.'
(the agents" — Ed.

SECT. III.] LEADBITTER V. FARROW. 603

a bill upon London for the amount, and the defendant filled up and
signed the bill in question upon one of the printed forms of the Dur-
ham bank, and sent it to the plaintiff. The following is a copy of the
bill : —

" N. G. 205.

" £50. Hexham, June 8th, 1815.

" Forty days after date, pay to the order of Mr. Thomas Leadbitter
fifty pounds, value received, which place to the account of the Durham
bank as advised.

"Messrs. Wetherell, Stokes, Mowbray, Ilollings worth, and Co.,
bankers, London.

(Signed) " Christr. Farrow."

The persons who constitute the firm upon which the bill was drawn
are the same who constitute the firm of the Durham bank, that bank
having a house in London, upon which they were in the habit of draw-
ing bills, which they wished to make payable there.

The bill in question was drawn in the same form as had been used
by the defendant since June, 1813, before which time he had been in
the course of issuing bills, drawn in the name of one of the partners
of tlie Durham bank. He did not draw bills on his own account in
this form, nor upon the same parties. The plaintiff, when he sent the
£50, and obtained the bill, knew that the defendant was agent of the
Durham bank at Hexham, and that the Durham bank drew upon a
house in London, and he supposed that the bill was given b\' the de-
fendant, as agent, and on account of the Durham bank, to which the
defendant paid over the £50. The bill, when due, was presented to
the drawees, and payment refused, and due notice was given to the
defendant.

The question for the opinion of the Court was, whether the plaintiff
was entitled to recover.

Tindal for the plaintiff.

Scarlett, contra.

Lord Ellenborough, C. J. Is it not a universal rule that a man
who puts his name to a bill of exchange thereby makes himself per-
sonall}' liable, unless he states upon the face of the bill that he sub-
scribes it /or another, or by procuration of another, which are words
of exclusion? Unless he says plainly, "I am the mere scribe," he
becomes liable. Now, in the present case, although the plaintiff knew
the defendant to be agent to the Durham bank, he might not know but
that he meant to offer his own responsibility. Every person, it is to
be presumed, who takes a bill of the drawer, expects that his respon-
sibility is to be pledged to its being accepted. Giving full effect to the
circumstance that the plaintiff knew the defendant to be agent, still
the defendant is liable, like any other drawer who puts his name to
a bill without denoting that he does it in the character of procurator.
The defendant has not so done, and therefore, has made himself liable.

604 PRICE V. TAYLOR. [CIIAP. IV.

I do not say whether an action would lie against the Durham bank,
because, considering it in eitlier way, it would not, as it seems to me,
affect the liability' of the defendant.

Bayley, J. 1 am entirely of the same opinion. The drawer, by the
act of drawing, pledges his name to the bill's being duly honored ; and
though the plaintiff in this case knew that the defendant was an agent,
he might also know that he had given this pledge.

Abbott, J. I am also of the same opinion. The party does not
show that the bill was not taken according to the effect which it bears
on the face of it.

HoLROYD, J. I apprehend that no action would lie on the bill,
except against those who are the parties to it.

Judgment for the plaintiff.

PRICE V. TAYLOR and FISHER.

Exchequer. 1860.

[5 E. ^- N. 540.]

Declaration. That the defendants, together with one W. R. Heath,
on the 12th of March, 1858, made their promissory note in writing now
overdue, which note is in the words and figures following, that is to
say : —

" Midland Counties Building Society, No. 3.
"Birmingham. March 12, 1858.

" Two months after demand in writing we promise to pa}- to Mr.
Thomas Price the sura of one hundred pounds, with interest after the
rate of six pounds per centum per annum, for value received.

" W. R. Heath,
"£100. John Taylor, Trustees.

" W. D. Fisher, Secretary.''^

Averments : that the signatures John Taj-lor and W. D. Fisher at-
tached to the said note are those of the defendants, respectively' ; that,
after the making of the said promissory note, the plaintiff duly de-
manded in writing of the defendants the payment of the said sum of
£100 with interest for the same after the rate aforesaid ; that two months
after the making of the demand had elapsed before suit ; yet that the
defendants have not nor hath either of them paid, «&;c. Second count,
for money due in respect of moneys lent, for interest, and on an account
stated.

Plea, by the defendant Taylor: That the several contracts in the
declaration mentioned, and each and every of them, were made and
entered into b}' a certain building society, whereof the defendants and
divers other persons, at the time of the making of the said contracts,

SECT. III. J PRICE V. TAYLOR. 605

were and are members, that is to sa}-, the No. 3, Midland Counties
Building Society', duly established under and by virtue of the provisions
of an Act (6 & 7 Wm. IV. c. 32), for the regulation of building societies,
and all other statutes in that behalf, the rules of which said society
were dul}' certified and allowed, and all other matters and things
required by the statutes dul}' performed in pursuance of the said stat-
utes, to constitute the said societj- a building society, within and
subject in all respects to the provisions of the said Acts ; and the said
contracts were not, nor was any or either of them, made with the de-
fendants otherwise than as members of the said societ}', together with
the said other members ; and that at time of the commencement of
this suit divers persons, of whom the defendant W. D. Fisher was not
one, were trustees of the society, duly appointed in all respects as
required by the Acts by the rules of the society, and liable by virtue of
the said Acts to be sued as such upon all the contracts of the society.

To this plea the plaintiff demurred.

Quain, in support of the demurrer.

Gray^ in support of the plea.

Pollock, C. B. I am of opinion that the plaintiff is entitled to
judgment. The note is nothing more than what it purports to be, viz.,
the promise of the defendants, not of the societ}-. The plea does not
deny that the form of the contract is that set out in the declaration, but
says it means something else. I think, however, that it is not compe-
tent to a defendant to plead that a written contract means something
different from that which it purports. A party cannot sa}', " I executed
that contract, but j'ou know I meant something else."

Martin, B. The meaning of a written document is to be collected
from the terms in which it is expressed. In Bayley on Bills, ch. 2,
sec. 8, it is said : "Where a bill or note is drawn b}' an agent, executor,
or trustee, he should take care, if he mean to exempt himself from per-
sonal responsibilit}', to use clear and explicit words to show that inten-
tion." This is the correct rule of construction. Does the note in the
present case show an intention on the part of the defendants to exempt
themselves from personal responsibility ? I think not. " Midland
Counties Building Societ}-, No. 3," may be the name of the place from
which the note is dated ; the promise is not qualified. If the plea
admits that the note was the note of the defendants it shows no answer
to the action ; if it be meant to contradict the terms of the note, it
is bad.

Bramwell, B. I am of the same opinion ; though I cannot sa}' I
think the matter verj' clear. First, what is the natural meaning of the
language of the note ? There is no difficulty about that, for on reading
it, it does not appear that the defendants undertake for anybody but
themselves. If there was anything to show that the note wouM be
binding on the building society, we might hold that the note was the
note of the society, and not of the defendants alone, as in Aggs v.
Nicholson, 1 H. & N. 165. If tlie note had been made bv the defend-

606 BANK OF NEW YORK V. BANK OF OHIO. [CHAP. IV.

ants in such a form as not to bind thein personally, possibly the plea
might have been good. But I concur in saying that the plaintiff must
have judgment. I do not think that the defendants contend that this
is a uo;e binding upon the society. I doubt if they could have said so.
1 know of no means by which such a note could be enforced except as
against the individual members of the society.

Wilde, B. I am of the same opinion. The note on the face of it
merely professes to bind the persons who signed it. They add the
word " trustees " to their signature. The defence is, that the}' signed
as agents. But an agent who signs a note in his own name makes
himself personally liable upon it. If there are any circumstances to
show that the trustees were not to be personal!}' liable, that may be a
matter of equitable defence. Judgment for the plaintiff.^

THE BANK OF THE STATE OF NEW YORK v. THE
MUSKINGUM BRANCH OF THE BANK OF THE
STATE OF OHIO.

Court of Appeals of New York. 1864.

[29 N. Y. 619.]

Appeal from a judgment of the Supreme Court.
The action was brought against the defendants as endorsers of a bill
of exchange as follows : —
"No. 1 305. Zanesville, 0., July 21, 1857.

"Sixty days after date, pay to the order of D. C. Converse, Esq.,
cashier, twenty-two hundred and forty dollars, as advised, and charge
the same to account of

" Your obedient servants,

" Beaumont & Hollings worth.

"To W. R. EcKART, 118 Broad St., New York. $2,240."

(Written across face. ) " W. R. Eckart."

(Endorsement.) " Pay to the order of Edwin Ludlow, cashier."

" D. C. Converse, Cr.

" Edwin Ludlow, Cr."

The complaint averred that D. C. Converse was and is the cashier of
the defendants, and their officer authorized to deal with their funds and
negotiable paper; that the bill was actually drawn to the defendants,
and endorsed by the defendants to the Ohio Life Insurance and Trust
Company, and by the Ohio Life Insurance and Trust Company endorsed

1 Ace. : Casco Natioual Bank v. Clark, 139 N. Y. 307 (1893). — Ed.

SECT. III.] BANK OF NEW YORK V. BANK OF OHIO. 607

in blank, and that before maturity the bill was delivered to the plaintiff,
for value.

The defendants, in their answer, denied that D. C. Converse was or
is authorized to deal with the negotiable paper in an}' other manner
than as their cashier and special agent. As a furllier defence it was
averred and stated that the defendants were the sole and absolute
owners of the bill ; that after becotning sucii owners they transmitted it
to the Ohio Life Insurance and Trust Company, to its office in the city
of New York, for collection for tlieir account, and for no other purpose,
and upon no other account wliatsoever. That said company failed, on
or about the 24th August, 1857, having been insolvent and embarrassed
for four montlis previous thereto ; and that the alleged tiansfer of said bill
to the plaintiff was made fraudulently, coniiptl}-, usuriously, and in bad
faith, and without any authority, and in contemplation of tlie insolvency of
the said Ohio Life Lisurance and Trust Company ; and that the plaintiff
did not receive the same in the usual course of business, but with notice of
the premises as aforesaid, or under circumstances to put said plaintiff
upon iuquir}' as to the right of said trust companv and its cashier to
endorse or transfer the same, and as to the right of the defendants thereto.
And it is averred that the plaintiff was chargeable with notice that the
said acceptance was not the propert}' of the Ohio Life Insurance and
Trust Compan}', but the property of the defendants. The case was
referred to William Kent, Esq., who gave judgment for the plaintiffs.
The referee found as facts that the defendants and the Ohio Life
Insurance and Trust Compan}- were corporations incorporated by the
State of Ohio. That at the time the bill was endorsed and sent to the
Ohio Life Insurance and Trust Compan}-, D. C. Converse was the cashier
of the defendants and Edwin Ludlow was the cashier of the trust company.
That the bill was discounted b}' the Muskingum Branch Bank, in the regu-
lar course of business, and was afterwards endorsed b}- said Converse,
the cashier thereof, and transmitted to the Ohio Life Insurance and Trust
Company, in the city of New York, for collection only. That the defend-
ants did not part with their property in the bill to the Ohio Life Insurance
and Trust Company ; but that compan}' received it as the agents of the
defendants, '' for collection, and for no other purpose." That it was trans-
ferred by the Ohio Life Insurance and Trust Company to the plaintiff
as collateral security ; that the plaintiff had not, at the time of such trans-
fer, actual notice of the ownership of said bill b}- the Muskingum Branch
Bank, but received the same bona fide, and in the usual course of business.

As conclusions of law, the referee decided that the plaintiff acquired
a title to the bill of exchange by virtue of the transfer to it aforesaid;
and that the Muskingum Branch Bank had become liable to pa}' the
amount thereof, with interest, to the plaintiff, by reason of the said
endorsement thereof by D. C. Converse, cashier of said Branch Bank,
and the transfer by the Ohio Life Insurance and Trust Company.

At the close of the evidence the point was taken by the defendants'
counsel, and overruled by the referee, that the Muskingum Branch

608 BANK OF NEW YORK V. BANK OF OHIO. [CHAP. IV.

Bank could not be made liable on the endorsement, " D. C. Converse,
cashier," said bank nowhere appearing on the said bills, and the said
Converse having no authority to bind the bank.

Judgment being entered for the plaintiffs on the report of tlie referee,
the defendants appealed to the Supreme Court, where the judgment was
aflflrmed. The defendants brought the present appeal.
G. C Goddard, for the appellant.
A. W. Clason, for the respondent.

Wright, J. The question in the case, on the facts, is a narrow one.
The defendants discounted a bill of exchange in the regular course of
buBiness, which was endorsed h\ one Converse, their cashier, and trans-
mitted to the Ohio Life Insurance and Trust Company, in the city of
New York, for collection only. Before the bill matured, the trust company
transferred it to the plaintiffs as collateral security for borrowed money.
The plaintiffs, at the time of such transfer, had no actual notice of the
ownership of the bill by the defendants, but received the same bona fide,
and in the usual course of business. The bill vras made payable to the
order of D. C. Converse, cashier, and endorsed, " Pa}' to the order of
Edwin Ludlow, cashier, D. C. Converse, Cr." The only question is,
■whether this was the endorsement of the Muskingum Branch Bank, or
of Converse individuallj'. If it was an official and not the private act of
Converse, in fact done on behalf of the bank, as the bill was negotiated
to the plaintiffs, "who are bo7ia fide holders, the endorsement would
conclude the bank in favor of them, though the Ohio Life Insurance and
Trust Company, its agent, acted in bad faith, and disobeyed its instruc-
tions, by negotiating the bill for its own benefit instead of collecting it.

It seems to me, on tlie facts, that but one interpretation can be given
to Converse's acts. Converse was the defendant's cashier. A bill
drawn to " D. C. Converse, cashier," was discounted by the defendants.
The facts are found, and it is not controverted, that the Muskingum
Bank owned the draft, and that it was sent to the Ohio Life Insurance
and Trust Company for collection. The trust company received it from
the bank with the endorsement, " D. C. Converse, Cr." Now, how can
it be pretended that this was the individual and not the official act of
Converse? Although " D. C. Converse, cashier," was the payee of the
draft, the bank claimed it as its propert}-, and to deal with it as such.
Indeed, a bill drawn to " D. C. Converse, cashier," is, in judgment
of law, payable to the bank of which he is the officer. Being the prop-
erty of the bank, the endorsement, " D. C. Converse, Cr.," was made
by the proper officer, for a proper purpose. It was, therefore, an official
endorsement. Had there been nothing in the case to connect the bill
with the defendant's bank, Converse would have been regarded as the
pa3'ee and the endorser individualh', and the abbreviation affixed to his
name considered as a descriptio personce; but when his official position
is shown, connected with the facts that the bill was the property of the
bank, and in the regular course of business was transmitted to its agent
for collection, it is then shown that the endorsement is an official one.

SECT. III.] BARLOW V. CONGREGATIONAL SOCIETY. 609

The case of the £ank of Ge^iesee v. Patchin Bank (19 N. Y. R. 312)
is, on this question, a controlling authorit}'. In that ease, S. B. Stokes,
the cashier of the Patcliin Bunk, sent to the Bank of Genesee, to be
discounted, a bill of exchange payable to the order of "S, B. Stokes,
Cas.," endorsed by him with the same addition to his signature, and
enclosed in a letter dated at the banking house, and signed " S. B.
Stokes, Cas." It was held that these circumstances imi)orted that the
endorsement was that of the Patchin Bank, in the regular course of
business, and not that of S. B. Stokes individiudl}-. There is this
difference onl}' in the cases. In the one cited the bill was sent for
discount, in this for collection ; but plainly' that could not affect the
question. The intention in each case to make the bank a party to the
paper is equally carried out.

I think, therefore, the endorsement in this case was that of the
Muskingum Bank, and bound it as such to a bona Jidt holder of the bill.
Its liability as endorser certainly cannot be qualified by the consideration
that the bill was sent to its agent not to be negotiated, but for collection
only. The object of the endorsement was to create a privity between
any holder and the parties to the paper, and it accomplished it. There
was nothing on the face of the endorsement to convey to third parties
knowledge of the single purpose for which it was made, nor were they
even bound to ascertain that extrinsic fact. The bank reposed confi-
dence in the caution of its cashier, and in the honest}- of its agent. The
cashier neglected to add the restrictive words which would have limited
the negotiability of the bill, and the agent abused the trust. I do not
think that the plaintiff, who became a holder in good faith, and in the
regular course of business, should bear a loss occasioned b}' the negli-
gence of the one and the bad faith of the other agent.

The judgment of the Supreme Court should be Affirmed}

BARLOW V. CONGREGATIONAL SOCIETY.
Supreme Judicial Court of Massachusetts. 1864.

[8 Allen, 460.]

Contract brought b}' the administrator of the estate of Reuben
Barlow against the Congregational Society in Lee, upon the following
promissor}' note : —

'' $23.00. Lee, April 26, 1858. On demand, I, as treasurer of the
Congregational Society, or my successors in office, promise to pay

1 All the judges concurred. The opinion of Ingraham, J., has been omitted.
See Phelps v. Livingston, 2 Root, 495 (1797); Baldwin v. Bank of Newbury, 1
Wall. 234 (1863). — Ed.

610 BARLOW V. CONGREGATIONAL SOCIETY. [CIIAI*. IV.

Erastus Hall or order twenty-three dollars, value received, with interest.
Samuel S. Rogers, Treasurer."

The declaration alleged that the defendants, for value received by
them, made the note by Samuel S. liogers, their treasurer and agent,
duly authorized ; and that it was duly indorsed to the plaintilf s intes-
tate. The defendants filed a general demurrer, which was overruled in
the Superior Court, and judgment rendered for the plaintiff ; and the
defendants appealed to this court.

31. Wilcox, for the defendants.

J. Hi'ditning, for the i)luuititf.

Gray, J. It is well settled in this Commonwealth that the question
whether a principal or his agent is the party liable upon a negotiable
note or bill of exchange must be ascertained from the instrument itself,
at least when both are in law capable of contracting, and it is not pre-
tended that either has adopted the name of the other as his own for the
purpose of transacting business. This exception to the general rule
which governs other parol (or unsealed) agreements is derived from
the nature of negotiable paper, which, being made for the very purpose
of being transferred from hand to hand, and of giving to every succes-
sive holder as strong a claim upon the maker as the original payee had,
must indicate on its face who the maker is ; for any additional liability
of the principal, not expressed in the form of such a note or bill,
would not be negotiable ; and any ambiguit}-, arising upon the face or
the writing, in determining whether it is the promise of the principal or
of the agent, must, on the ordinary- principles of the law of evidence,
be solved without the aid of extrinsic testimony'. Bank of British
North American. Hooper, 5 Gray, 570, 571, and cases cited ; Williams
V. Bobbins, 16 Gray, 77 ; Draper v. Massachusetts Steam Heating Co.,
5 Allen, 339 ; Slawson v. Loring, Id. 342.

The plaintiff has mainly relied upon the case of Mann v. Chandler,
9 Mass. 335, in which it was held that promissory notes expressed to
be made by "I, the subscriber, treasurer of the Dorchester Turnpike
Corporation," and signed " Gardner L. Chandler, Treasurer of Dor-
chester Turnpike Corporation," were the notes of the corporation, and
not of the treasurer. That case, although it has never been in terms
overruled, has never been followed in this Commonwealth, can hardly
be reconciled with the later decisions, and must be maintained, if at
all, upon the ground that the treasurer of a corporation is by virtue of
his office the hand by which the corporation conducts all its pecuniary
affairs, signs all its commercial paper, and pays all its debts. Eastern
Railroad v. Benedict, 5 Gray, 565; Fiske v. Eldridge, 12 Gray, 474;
Draper v. Massachusetts Steam Heating Co., 5 Allen, 339.

In that view, the notes of the treasurer of a corporation would be
assimilated to those of the cashier of a bank, which the American
courts, in accordance with mercantile usage, have often shown the
strongest inclination to treat as contracts of the bank. INIechanics'
Bank of Alexandria v. Bank of Columbia, 5 Wheat. 3S5, 336 ; Hartford

SECT. III.] BAKLOW V. CONGREGATIONAL SOCIETY. 611

Bank v. Barry, 17 Mass. 94; Folger v. Chase, 18 Pick. 63; Bank of
Utica V. Magber, 18 Johns. 346 ; Watervliet Bank v. White, 1 Denio,
613; Farmers' & Mechanics' Bank of Michigan v. Troy City Bank,
1 Doug. (Midi.) 470, 472, 473. It has indeed been adjudged by the
Supreme Court of tlie United States, as well as by tliis court, that on
commercial paper payable to "A. B., cashier," the bank, although not
named in the instrument, might maintain an action. Baine}- j>. New-
comb, 9 Cush. 53 ; Baldwin v. Bank of Newbury, I Wallace, 234.
Whetlier those decisions stand upon the peculiar relation between a
bank and its cashier, or (as the opinions imply) upon a general right of
an}' principal to sue upon negotiable paper made to his agent, we need
not here inquire. See West B03 Iston Manuf. Co. v. Searle, 15 Pick.
230 ; Commercial Bank v. French, 21 Pick. 486 ; Fuller v. Hooper,
3 Grny, 341 ; Eastern Railroad v. Benedict, 5 Gra}', 563, 564, and
cases cited ; Williams v. Bobbins, 16 Gray, 77 ; Bank of United States
V. Lyman, 20 Vt. 673-677, and cases cited; S. C. 12 How. (U. S.)
243.

But a draft pa3'able to " A. B , Treasurer of the Hampshire Manu-
facturing Company," has been held to be well indorsed by tlie signature
of " A. B., Treasurer;" Chief Justice Shaw saying, "This mode of
naming the payee, for aught tliat appears on the draft, was a descriptio
pei'sonce." Shaw v. Stone, 1 Cush. 253, 254. Still more directly op-
posed to the case of IMann ik Chandler is that of Seaver v. Coburn,
10 Cush. 324, in wliich it was Iield tliat a lease to Nathan P. Coburn,
"Treasurer of the P^agle Lodge, No. 114, I. O. O. F.," and signed
" N. P. Coburn, Treas.," bound Coburn personally. The files of that
case show that the lease was under seal, and it is common learning
that a sealed instrument takes effect more according to its form, in pro-
portion to the apparent intention, than a simple contract ; but it does
not appear b}' the report or opinion that anj' stress was laid upon that
distinction, or upon its not being shown that an Odd Fellows' Lodge
was a corporation capable of contracting.

All the decisions of this court upon unsealed instruments since the
case of Mann v. Chandler have required something more than a mere
description of the general relation between the agent and the principal,
in order to make them the contracts of the latter. Thus an agreement
which declares the signers to be a committee of a certain town, or
trustees of a particular meeting-house, and is signed with their own
names, without addition, is their individual contract. Simonds v.
Heard, 23 Pick. 120 ; Packard ik Nye, 2 Met. 47 ; and see Crew v.
Petit, 3 Nev. & Man. 450 ; s. c. 7iom. Rew v. Pettet, 1 Ad. & El. 196.
So a promissory note, in the body of which the principal is not named,
and which is signed by the agent in his own name, does not, b^y the
mere addition to his signature of the words " trustee" or "president"
of a particular railroad corporation, become the note of the corpora-
tion. Fiske V. Eldridge, 12 Gray, 474 ; Haverhill Ins. Co. v. Newhall,
1 Allen, 130. To the same effect are Fogg v. Virgin, 19 Me. 352;

612 BARLOW V. CONGREGATIONAL SOCIETY. [CHAP. IV.

Hills V. Bannister, 8 Cow. 31 ; Barker v. Mechanics' Ins. Co., 3 Wend.
98 ; Moss v. Livingston, 4 Comst. 208. We are therefore unwilling to
rest our judgment in this case upon the authority of Mann v. Chandler.
Nor can our decision be governed by tlie case, next cited by the
plaintiff, of Dawes v. Jacl^son, 9 Mass. 490, in which an indenture
made by the defendant, " as superintendent or agent of the Massachu-
setts State Prison," he having authority by virtue of his office to bind
the Commonwealth in the matter of that contract, was held not to bind
him personally ; for that case may have been decided u[)on the ground
that the defendant was a public agent. Hodgson v. Dexter, 1 Cranch,
345 ; Parks v. Ross, 11 How. (U. S.) 374.

Upon the question what words in a simple contract, made hy the
hand of an agent of an individual or private corporation, will bind the
principal, the line of distinction between the cases, even in the same
court, is very narrow. Thus it is well settled that a promissory note
made b}' an agent, without naming his principal in the body of it, but
signed " For C. D., A. B.," or " A. B., agent for C. D.," or " A. B., for
C. D.," is the note of C. D., the principal. Long v. Colburn, 11 Mass.
97; Emerson 'v. Providence Hat Manuf. Co., 12 Mass. 237; Ballon v.
Talbot, 16 Mass 461 ; Rice v. Gove, 22 Pick. 158 ; Paige v. Stone,
10 Met. 160 ; Ex parte Buckley, 14 M. & W. 469. But it seems to
be equally well settled in this court, and supported by English au-
thority, that the mere insertion of " for," or " for and in behalf of"
the principal, in the body of the note, does not make it the contract of
the principal, if signed by the mere name of the agent, without addi-
tion. Bradlee v. Boston Glass Manufactory, 16 Pick. 347 ; Morell v.
Codding, 4 Allen, 403 ; Penkivil v. Council, 5 Exch. 381 ; Tanner v.
Christian, 4 El. & Bl. 591. So a direction in a bill of exchange drawn
by an agent to place the amount " to the account" of his principal,
has been held not to exempt an agent signing his own name without
addition, Mayhew v. Prince, 11 Mass. 54, and papers on file in Suffolk,
March terra, 1814; but to bind the principal, when the word "agent"
was added to the signature. Tripp v. Swanzey Manuf. Co. 13 Pick.
292, 293 ; Fuller v. Hooper, 3 Gray, 334.

Even the insertion in a promissory note of the word "as" between
the name of the signer and the description of his relation to another
person, has been held not sufficient to exempt him from personal lia-
bility, where the note showed upon its face that no other person was
legally bound ; as in the case of a promissory note made by a guardian
" as guardian," and repeating the word " guardian " after his signature,
when he had no authority in law to bind the person or estate of his
ward by such a note. Thacher v. Dinsmore, 5 Mass. 299 ; Forster v.
Fuller, 6 Mass. 58. On like considerations it has been held in England
that a promise to pay money made by solicitors " as solicitors," bound
them and not their client. Burrell v. Jones, 3 B. & Aid. 47. See also
Eaton V. Bell, 5 B. & Aid. 34.

But wherever it appears upon the face of a simple contract made by

SECT. III.] BARLOW V. CONGREGATIONAL SOCIETY. 613

the agent of one named therein, and whom he can legally bind thereby,
that he acts as agent and intends to bind his principal, the law will
give effect to the intention, in whatever form expressed. Thus it
seems to be well settled in England that an authorized agent making a
written agreement " by procuration of" his principal, binds his princi-
pal only. Lord EUenborough, in Leadbitter v. Farrow, 5 M. & S. 345 ;
Wightman and Crompton, JJ., in Mare v. Charles, 5 El. & Bl. 980. So
this court, in what has long since become a leading case, held that an
agreement written upon the back of a negotiable promissory note in
these words : '' B}' authority from J. De Wolf, Jr., I hereby guaranty
the payment of this note. Isaac Clap," was the contract of De Wolf.
New England Marine Ins. Co. v. De Wolf, 8 Pick. 56. And an agree-
ment in which " the undersigned, committee for the First School Dis-
trict," promise in behalf of said district to pay a certain sum for
building a school-house therein, signed by the individual members of
the committee, with the word '^committee" opposite all their names,
has been held by the Supreme Court of Maine not to make them per-
sonall}' liable. Andrews v. Estes, 2 Fairf. 267. See also Abbey v.
Chase, 6 Cusli. 56 ; Tripp v. Swanzey INIanuf. Co , and Fuller r. Hooper,
above cited ; Bank of Australasia v. Breillat, 6 Moore, P. C 161, 189 ;
Lewis V. Nicholson, 18 Q. B. 503 ; Green v. Kopke, 18 C. B. 549.

The case now before the court is stronger against the principal than
an}' of these. The note is dated at Lee, and calls the person who
affixes the signature " treasurer of the Congregational Societ}-," thus
distinctly naming the Congregational Society in Lee, and showing who
the principal is ; the promise contained in the note is expressed to be
made by the writer " as treasurer of" that societ}' ; it does not promise
a payment by the present treasurer at all events, but by him " or his
successors in office," which could not be if the note were merelj- his
personal act, and not the act of the corporation whose agent he was ;
and the designation of his office is repeated after his signature. In
short, the note not only names the principal, describes the relation
between the principal and the agent, and declares the note to be
made in execution of the agenc\-, but it cannot take effect according to
its terms, except as the note of the principal.

As the intention to bind the defendants thus appears upon the face
of the note, and it is alleged in the declaration and admitted by the
demurrer that the agent had authorit}' to bind them, the judgment
must be Demurrer overncled.^

1 See Klostermami v. Loos, 58 Mo. 290 (1874). — Ed.

614 TUCKER MANUFACTUKING CO. V. FAIRBANKS. [CHAP. IT.

TUCKER MANUFACTURING COMPANY v. FAIRBANKS and

OTHERS.

Supreme Judicial Court of Massachusetts. 1867.

[98 Mass. 101.]

Contract against David Fairbanlis & Co. as drawers of the following
bill of exchange : —

" $4,469.76. Boston, March 23, 18C6.

" Two months after date pay to the order of Messrs. Hiram Tucker
&, Co., four thousand four hundred and sixty-nine -{-^^^ dollars, value
received, and charge the same to account of

" David Fairbanks & Co.,

" Agts. Piscataqua F. & M. Ins. Co.
" To Piscataqua F. «fe M. Insurance Co., So. Berwick, Me."

Across the face of the draft was written, " Accepted for the Treasurer,
David Fairbanks, President;" and on the back, "Payable in Boston,
Hiram Tucker & Co."

Trial by jury was waived, and the case heard by Foster, J., who
found the following facts : The signatures of all the parties to the bill
were proved or admitted. It was actually made and delivered to the
offlcers of the plaintiff corporation, and accepted by them on the 3d of
April, 1866, in payment and satisfaction of the amount of a loss by fire,
due on a policy of insurance eflTected by Hiram Tucker & Co. in the
Piscataqua Fire and Marine Insurance Company, which had been
ascertained on the 23d of March, and was payable sixty days after-
wards, and had been assigned by Hiram Tucker & Co. to the plaintiffs
on the 26th of March. The plaintiffs had full knowledge of all the cir-
cumstances under which the bill was made. The insurance company,
at the time of delivering it, took from the plaintiffs' treasurer this
receipt : —

" Piscataqua ¥ire and Marine Ins. Co., Treasurer's Office,
" $4,469.76. So. Berwick, Me., April 3, 1866.

♦' Received of the Piscataqua Fire and Marine Insurance Company,
forty-four hundred and sixt3'-nine and -f/vr dollars, in full, for loss and
damage to my property by fire on the 19th of March, 1866, insured by
policy No. 16,907 in said company.

" Tucker Manufacturing Co. R. S. Fay, Treas."

No evidence was offered of an}' fraud attending the making of the
bill. The defendants offered parol evidence tending to show that it
was not expected or intended that they should be liable on the bill, that
it was given onlj' to settle the loss, and was supposed and expected by
both parties to create a debt against no one but the insurance company.

SECT. III.] TUCKKR MANUFACTURING CO. V. FAIRBANKS. 615

But the judge excluded such evidence, and held that the question of the
defendants' liability must be deteiruined by the instrument itself.^ . . .

Upon these facts the presiding judge found that due presentment and
notice had be^ri waived b}- the defendants ; and reserved the questions,
whether the facts warranted this finding, whether the defendants were
liable personally' as drawers on the face of the bill, and whether the
parol evidence offered by them should have been received for the con-
sideration of the full court, according to whose opinion judgment was
to be entered for the plaintiff, or for the defendant, or a new trial
ordered.

(7. Ji7-owne, for the plaintiffs.

JL A. /Scudder, for the defendants.

Gray, J.^ 2. It is equally clear that the liability of the defendants
as drawers of a negotiable instrument must be determined from the
instrument itself. This is too well settled to admit of discussion.
There is no distinction in this respect between the drawer of a bill of
exchange and the maker of a promissor}' note. Bank of British North
America v. Hooper, 5 Gra^-, 567 ; Bass v. O'Brien, 12 Gra}', 481 ;
Slawson v. Loring, 5 Allen, 342 ; Barlow v. Congregational Societ}' in
Lee, 8 Allen, 460 ; Arnold v. Sprague, 34 Vt. 402 ; Met. Con. 108.

3. The question whether the defendants are liable upon the face of
the bill requires more consideration. The difficulty is not in ascertaining
the general principles which must govern cases of this nature, but in
applying them to the different forms and shades of expression in par-
ticular instruments. In order to exempt an agent from liability upon
an instrument executed by him within the scope of his agenc}', he must
not only name his principal, but he must express by some form of words
that the writing is the act of the principal, though done by the hand of
the agent. If he expresses this, the principal is bound, and the agent
is not But a mere description of the general relation or office which
the person signing the paper holds to another person or to a corporation,
without indicating that the particular signature is made in the execution
of the office and agenc}', is not sufficient to charge the principal or to
exempt the agent from personal liabilit}'. Amid the great variet}' of
language which may be used b}' merchants in haste or thoughtlessness,
ignorant or unmindful of legal rules, or not anticipating the importance
of holding one part}' rather than the other responsible, it must often
happen that cases fall ver}' near the dividing line ; and, in order to
maintain uniformity of decision, it is necessary for the court to refer
to the cases already adjudicated, especially within its own jurisdiction.

The authority which at first sight seems most strongly to support the
position of the defendants is that of Ballon v. Talbot, 16 Mass. 461, in
which a note signed " Joseph Talbot, agent for David Perr}'," was held
not to bind Talbot personally. That case has since been recognized

* Facts indicating waiver of presentment and notice have been omitted. — Ed.
' After discussing the waiver of presentment and notice. — Ed.

616 TUCKER MANUFACTURING CO. V. FAIRBANKS. [CHAP. IV.

and followed in this Commonwealth. Jefts v. York, 4 Cush. 372 ; Page
V. Wight, 14 Allen, 182. But the important and effective word in
Ballon V. Talbot was not the word ''agent," nor th^^, name of the
principal, but the connecting word " for," which might ibdeed indicate
merely the relation which the agent held to the principal ; but which
was equally apt to express the fact that the act was done in behalf of
the principal, in the same manner as if the words had been trans{)Osed
thus: "For David Perr}', Josei)h Talbot, agent." See Deslandes v.
Gregory, 2 El. & El. 602. This is made manifest by considering that
if the word " agent" had been wholly omitted, and the form of the
signature had been simply " Joseph Talbot, for David Perry," or " For
David Perrj', Joseph Talbot," it would have been well executed as the
contract of the principal, even if it had been under seal, and of course
not less so in the case of a simple contract. Long v. Colburn, 11 Mass.
97; Emerson v. Providence Hat Manufacturing Co., 12 Mass. 237;
Mussey v. Scott, 7 Cush. 215; Met. Con. 105, 110,

On the other hand, in Hills v. Bannister, 8 Cowen, 31, a note signed
by two persons, with the addition " Trustees of Union Religious
Society, Phelps" (who were a legal corporation), was held to bind the
signers personally ; and in Barker v. Mechanic Insurance Co., 3 Wend.
94, a note signed " John Franklin, President of the Mechanic Fire
Insurance Company," was held on demurrer not to be the note of the
company, although alleged to have been made within the authority of
the president and the scope of the legitimate business of the corporation ;
the court saying : "In this case, there is an averment that the president
was lawfully' authorized ; but it does not appear that he acted under
that authority ; he does not say that he signs for the company / he
describes himself as president of the compan\-, but to conclude the
compan}' by his acts he should have contracted in their name, or at
least on their behalf." The variation between the words "for" and
" of" seems at first view slight; but in the connection in which they
are used in signatures of this kind the difference is substantial. " Agent
of" or " president of" a corporation named simpl}- designates a personal
relation of the individual to the corporation. " Agent for " a particular
person or corporation may designate either the general relation which
the person signing holds to another part}', or that the particular act in
question is done in behalf of and as the verj' contract of that other ;
and the court, if such is manifestly the intention of the parties, ma}'
construe the words in the latter sense. But even " agent for" has been
held under some circumstances a mere descriptio personce of the agent,
as in De Witt v. Walton, 5 Selden, 570, in which the name following
these words was not the proper name of the principal, but the name of
a newspaper which the agent carried on in the principal's behalf, and a
note signed " David Hoyt, agent for The Churchman," was held to be
the note of Hoyt and not of his principal ; and in Shattuck v. Eastman,
12 Allen, 369, in which it was held that a paper in the form of a
receipt, signed " Robert Eastman, Agent for Ward 6, Lowell, Mass.,"

SECT. III.] TUCKER MANUFACTURING CO. V. FAIRBANKS. 617

if executed under such circumstances as to amount to a contract, might
be binding on the agent personall}'. In Fiske o. Eldridge, 12 Gray,
474, in a careful review of the cases by Mr. Justice Dewey, the New
York decisions above mentioned were quoted with approval, and a note
signed " John T. Eldridge, Trustee of Sullivan Railroad," was held to
be the personal note of Eldridge. In Haverhill Insurance Co. v. New-
hall, 1 Allen, 130, a note signed " Cheever Newhall, President of the
Dorchester Avenue Kuilroad Company," was held to bind Newhall
personally', although given by him to an insurance compan}' (as was
expressed in the note itself) in consideration of a policy issued to the
railroad corporation, which he was in fact authorized to obtain and sign
the note for. See also Fullam v. West Brookfield, 9 Allen, 1 ; Morell
V. Codding, 4 Allen, 403 ; Tanner v. Christian, 4 El. «& Bl. 591 ; Parker
V. Winslow, 7 El. & Bl. 942; Price v. Taylor, 5 II. & N. 540;
Bottomley v. Fisher, 1 11. & C. 211.

This case is not distinguishable from those just stated. It differs
from Ballon v. Talbot, in omitting the word " for " (the only evidence,
contained in the note there sued on, that it was made in behalf of the
principal), leaving the words " Agts. Piscataqua F. & M. Ins. Co." as
a mere description of the persons signing this bill. The cases of Mann
V. Chandler, 9 Mass. 335 ; Despatch Line of Packets v. Bellamy Manu-
facturing Co., 12 N. II. 205, and Johnson v. Smith, 21 Conn. 627, can-
not avail the defendants against the later decisions of this court. See
12 Gray, 476 ; 8 Allen, 461, 462. The name of the principal does not
appear in the body of the bill. The address of the bill to the corpora-
tion and the request to them to charge the amount to the account of the
drawers have certainly no tendency to show that the drawers are the
same as the corporation, the drawees. The fact that the bill was
delivered to the plaintiffs h\ the insurance company, as shown b}- the
contemporaneous receipt, does not make it the less the promise of the
signers. The defendants must therefore be held personally responsible
as the drawers of the bill. Judgment for the plaintiffs}

1 Compare Chipman v. Foster, 119 Mass. 189 (1875). — Ed.

618 CARPENTER V. FAKNSWORTH. [CHAP. IV.

carpp:nter v. farnsworth.

Supreme Judicial Court of Massachusetts. 1871.

[106 Mass. 561].

Contract on a bank check, of the face of which the following is a
copy : —

The Boston National Bank.
$19.20. Boston, September 9, 18G9.

Pay to L. W. Chamberlin oi" J. E. Carpenter or order, nine-
teen dollars fo"^.

I. D. Farnsworth, Treasurer.

^tna
mills.

The case was submitted to the judgment of the Superior Court, and
on appeal of this court, on facts agreed substantially as follows : The
iEtna Mills owed Chamberlin $19.20 for an order accepted by them
payable to him or order, and Chamberlin indorsed the order to the
plaintiff, who requested the defendant to pay it, whereupon the defend-
ant, who was the treasurer of the ^tna Mills and authorized to sign
checks for them, gave the plaintiff the check declared on. The Boston
National Bank refused payment of the check, and due notice thereof
was given to the defendant.

«/] -K Carpenter, pro se.

W. P. Walley, for the defendant.

Gray, J. The writing sued on, being paj-able in the alternative to
either of the persons named or order, would seem not to be a negotiable
instrument. Osgood v. Pearsons, 4 Gray, 455. But it is immaterial
whether it is or is not. If it is, the question who is liable thereon as
drawer must in all cases be determined from the instrument itself.
Tucker Manufacturing Co. v. Fairbanks, 98 Mass. 101, 104, and au-
thorities there cited. If it is not, there is nothing in the circumstances
under which it was made to show an intention to charge the defendant
personall}', for it is admitted to have been given in payment for a debt
of the ^Etna Mills. And accordingly the only ground upon which the
plaintiff seeks to charge the defendant is that he appears upon the face
of the paper to be the drawer thereof.

But we are of opinion that this case does not fall within that class,
to which all those cited for the plaintiff belong, in which the name of
the principal appears upon the instrument by way of mere designation
of the general relation which the signer holds to a corporation ; and
that this check manifests upon its face that the writing is the act of the
principal, though done by the hand of an agent, or in other words, that
it is the check of the ^tna Mills, executed by Farnsworth as their
treasurer and in their behalf.

The case is not distinguishable from those in which similar instru-
ments have been held by this court to be the contracts of the principal

SECT. III.] STURDIVANT V. HULL. 619

only. The court has always laid hold of anj- indication on the face of
the paper, however informally expressed, to enable it to carry out the
intentions of the parties. In Tripp v. Swanzey Paper Co., 13 Pick.
291, a draft not naming the principal otherwise than by concluding
"and charge the same to the Swanzey Paper Couipan}", yours respect-
full}', Joseph Hooper, Agent," was held to be the draft of the company.
In Fuller v. Hooper, 3 Gray, 334, a draft with the words " Pompton
Iron Works " printed in tiie margin, and concluding " which place to
account of Pompton Iron Works, W. Burtt, Agent," was held to bind
the proprietor of the Pompton Iron Works ; and in Bank of British
North America v. Hooper, 5 Gray, 567, in which a draft concluding
" and charge the same to account of Proprietors Pembroke Iron
Works, your humble servant, Joseph Barrell," without otherwise nam-
ing a principal or disclosing the signer's agenc}', was held to bind Iiim
only, it was said by the court that in Fuller r. Hooper, the words
"Pompton Iron Works " in the margin of the draft fully disclosed the
principal, and that the draft was drawn on his behalf. So in Slawson
V. Loring, 5 Allen, 340, 343, in which a draft, having the words "Office
of Portage Lake Manufacturing Company, Hancock, Michigan," printed
at the top, was signed " I. R. Jackson, Agent," Chief Justice Bigelow
said, " No one can doubt that on bills thus drawn the agent full}' dis-
closes his principal, and that the drawer could not be personally charge-
able thereon."

The instrument in question therefore binds the corporation, and not
its treasurer personall}*; the judgment of the Superior Court must be
reversed, and there must be Judgment for the defendant?-

STURDIVANT and another y. HULL.
Supreme Court of Maine. 1871.
[59 3/e. 172.]

On exceptions to the ruling of Goddard, J., of the Superior Court
for the county of Cumberland, at the November term, 1870.

Bakuows, J. Assumpsit by the payees against the maker of a
promissor}' note of the following tenor : —

$•225.00 Portland, Dec. 20, 1869.

Four months after date, I promise to pay to the order of
Sturdivant «fe Co., two hundred and twenty-five dollars.
Payable at either bank in Portland, with interest. Value
received.

John T. Hull, Treas. St. Paul's ParisK

1 Ace. : Hitchcock v. Biichauan, 103 U. S. 416 (1881). — Ed.

U.S.I.R

Stamp.
25 cents.

620 STURDIVANT V. HULL. [CHAP. IV.

The signature to the note was not denied, but the defendant offered
to prove, and if evidence dehors the note is admissible for that purpose
we must consider it as proved, that at the time the note was made
defendant was treasurer of 8t. Paul's Parish, and made the note in
suit, in behalf of said parish and for their sole benefit, in renewal of a
former note given by his predecessor, Mood}-, for lumber used in build-
ing their parish church, and that defendant never received any personal
consideration or any consideration for the note, other than the fore-
going. And that these facts were known to the plaintiffs when the
note was given, and that the understanding and intention of both
parties, then, was that it was the note of the parish and not of the
defendant.

As the suit is between the original parties to the note, it follows that
if the proffered evidence showed that there was no valid consideration
for the defendant's promise, it should have been admitted. But such
is not the case. It is not necessary that the consideration should have
enured to the personal benefit of tlie promisor, and the surrender of
the previous note, or the extension of the term of credit originally
given to the parish for the lumber, would, either of them, be a suf-
ficient consideration for the defendant's note.

The case presents but two questions : —

1. Whether the defendant's liability must be determined solel}' by
the written instrument which he has subscribed, excluding the evidence
above offered to control its construction?

2. If so, does the true construction of it make it his note, or that of
the parish ?

I. Now, when parties are competent witnesses, and stand ready to
testif}' (if allowed) not only to their own intentions, but to those of the
other part}' to the contract, the wisdom of the long established rule,
which requires all parties to written contracts, at their peril, to state
what they mean to abide by in the writing itself, and prohibits them
from resorting to oral testimon}' to contradict or vary its terms, grows
more apparent every da}-.

One of the illustrations of this rule, given by Mr. Greenleaf in his
Treatise on Evidence, Vol. 1, p. 320, ed. of 1842 (citing Stackpole v.
Arnold, 11 Mass. 27), runs thus: "Where one signed a promissory
note in his own name, parol evidence was held inadmissible to show
that he signed it as the agent of another, on whose property he had
caused insurance to be effected by the plaintiff, at the owner's
request."

When a man has deliberately said, in writing, " I promise to pay,"
and a valid consideration for the promise is shown, right and justice
are not very likely to be the gainers by allowing him to retract and to
undertake to prove that he did not actually mean, " I promise," but
that he meant, and the other party understood that he meant, that
some third party, whose promise the writing does not purport to be,
undertook the payment.

SECT. III.] STURDIVANT V. HTLL. 021

It is better that a careless or ignorant agent should somotinies pay for
his principal, than to subject the construction of valid written contracts
to the manifold perversions, misapprehensions, "and uncertainties of
oral testimon}'.

And upon this point the decisions (although, in cases of like type
•with this, they are soinewJKit conflicting, or at least, distinguished with
scared}^ a shade of difference, upon the question of the construction
of the instrument itself) will be found concurring. Andrews v. Estes,
1 1 Maine, 270 ; Hancock v. Fairfield, 30 Maine, 299 ; Slawson v.
.Loring, 5 Allen, 342 ; Draper v. Mass. Steam Heating Co., 5 Allen,
338 ; Barlow v. Cong. Soc. in Lee, 8 Allen, 400 ; Tucker Manuf. Co.
V. Fairbanks, 98 Mass. 104, and cases there cited. . . .^

The defendant's liability must be ascertained by an examination of
the note itself.

n. As has already been suggested, the cases involving the construc-
tion of similar instruments are more difficult to reconcile than those in
which the point just disposed of has been considered. Apparently
slight changes in the phraseology have affected the construction adopted
by different courts, and by the same court in different cases. There is
a necessity for a careful examination and comparison of the numerous
decisions. This we have endeavored to make, and the result is, we
are satisfied that the weight of reason and authorit}' demonstrates that
this is the personal contract of the defendant and not that of the parish
of which he was treasurer.

There are no appropriate words in it to show that it was the contract
of the parish, or that it was made by the defendant in its behalf. He
does not sa}' that he promises as treasurer, or use an}- language signifi-
cative of an intention to bind his successors iu office, as in Barlow v.
Cong. Soc. in Lee ; iu which case Mann v. Chandler, a per curiam
opinion reported 9 Mass. 335, is disavowed as an authority, and it is
said that "all the decisions of this court upon unsealed instruments,
since the case of Mann v. Chandler, have required something more than
a mere description of the general relation between the agent and the
principal, iu order to make them the contracts of the latter." lldt 8
Allen, 461, 462, 463.

In Haverhill M. F. Insurance Co. v. Newhall, 1 Allen, 130. upon a
note signed, " Cheever Xewhall, president of the Dorchester Avenue
Railroad Company," though it was agreed that the defendant, at the
time of signing the note, was the president of said company ; that it
was given in consideration of a policy of insurance issued b}- the plain-
tiffs to that compan}-, upon property owned by them, and that the de-
fendant was duly authorized b}' the companv to obtain the insurance
and sign the note, it was held that the form of the note onh' was to be
looked at upon the question of charging the defendant ; that he had

1 The omitted passages pointed out that the general rule is not abrogated by cer-
tain statutory provisions. — Ed.

622 STURDIVANT V. HULL. [CHAP. IV.

fixed a personal liabilit}' upon himself by the use of the words, "I prom-
ise to pa}'," and that this liabilitj- was not affected b}' the descriptive
addition to his signature.

In Fiske v. PLldridge, 12 Gra}-, 474, the note was signed " Jolm S.
Eldridge, Trustee of Sullivan Railroad," and tlie defendant was held
personally liable, though he proved that he was trustee of the railroad
company, and as such had entire charge of its propertj' and business,
and gave the note in suit to take up a promissor}- note of the corpora-
tion, and delivered with it bonds of the corporation as collateral security
for its payment.

The defendant's counsel relies upon certain dicta intimating that the
case of Mann v. Chandler vaay be sustained, because the defendant
there, as here, was treasurer of the corporation, and that the signature
of that officer may be thought, of itself, to import a promise of the
party whose treasurer he is.

But we should be unwilling to say that the treasurer of a religious
corporation has an}' authority b}- virtue of his office to bind such cor-
poration b}' the issue of negotiable promissor}- notes, or that the official
signature of such treasurer could be considered as indicating the asser-
tion of such authority-, any more than the signature of a person describ-
ing himself as president or trustee of a business corporation asserts
the requisite authority on the part of such president or trustee.

In Mann v. Chandler, relied on by the defendant, the special author-
it}' conferred b}' the directors upon the treasurer to give the note in
suit was shown, and in the more recent cases above cited, from 12 Gray
and 1 Allen, such authority was either admitted or proved without ob-
jection. But the tendency of the later decisions, manifestly, is to hold
the man who sa^'s, " I promise to pay " (without stating in the writing
itself that he promises for or in behalf of any other party), responsible
personally. Why should it not be so? That is the plain and direct
import of the language he uses. " I " is not the language of a corpora-
tion or an association. It is that of an individual signer. If such
signer appends to his signature a description of himself as agent, presi-
dent, trustee, or treasurer of a corporation, it may import a declaration
on his part, that, having funds of such corporation in his possession,
he is willing to be responsible, and accordingly makes himself respon-
sible for a debt of theirs.

And this clescriptio personoi may aid him in the keeping and adjust-
ment of his accounts with his different principals.

But without some words in the contract importing that he promises
for or in behalf of his principal, he cannot avoid the personal liability
he has thus assumed.

In Seaver v. Coburn, 10 Cush. 324, the contract signed b}' defendant
as " Treasurer of the Eagle Lodge," etc., was held binding upon him
personall}'. And the distinction which the defendant seeks to set up,
between treasurers and other officers and agents of corporations, was
io;nored.

SECT. III."] STURDIYANT V. HULL. 623

The fact that it has been suggested as a possible ground upon which
the case of Mann o. Chandler (so often doubted, and so recently' denied
to be an authority in the court which pronounced it) might be sustained.,
can hardl}' be expected to avail the defendant here.

This subject has been elaborately discussed in Tucker Manuf. Co. v.
Fairbanks, 98 Mass. 101, and in Barlow v. Cong. Soc. in Lee, 8 Allen,
4G0, and what we have alread}' said may seem superfluous.

It is a satisfaction, however, to know that the view of the law which
we take comports well with justice also. In the agreed statement of
facets which the parties liave appended to the case, it appears that in
Ma}', 1870, the parish mortgaged their church edifice and other prop-
erty to Henry A. Neel}' and the defendant and other members of the
parish associated with them, to secure them for liabilities assumed by
them for the parish, and that in the following month, before the com-
mencement of this suit, the equity of redemption from this mortgage
was sold on execution against the parish, and purchased in by the
mortgagees, so that the api)ropriation of the materials furnished by the
plaintiffs for the building of the church, without compensation, would
seem to be a sort of pious fraud which we should be slow to sanction
80 long as a legal reason for avoiding it could be found.

In the agreed statement it further appears, that there never was any
vote of the parish authorizing defendant, as treasurer or otherwise, to
sign any negotiable or other paper for the parish, but, that at a meet-
ing of the parish in September, 1869, on defendant's motion, it was
voted that the parish assume the payment of all liabilities thus contracted
by said Neeh', the defendant and others, by thus signing or indorsing
any notes for the parish, and that they would " save and hold harm-
less, from any loss or injur}-, all persons whatsoever, who may have or
shall hereafter assume or become responsible for the payment of any
debts of the parish." And on the 12th da}- of May, 1870, they voted
to assume the payment of all notes signed by defendant as treas-
urer. This tardy assumption might not have availed the plaintiffs in a
suit against the parish on this note ; for it seems to have been held,
that, when one signs as agent in such a case, his authority at the time
must be shown, and that subsequent ratification will not make it gO( d
as the act of the principal-
Tabor V. Cannon, 8 Met. 461 ; Eossiter y. Rossiter, 8 Wendell, 499
But the defendant, who is mortgagee of all the church property, and
co-owner of the equity of redemption, fortified by such a vote may
haply find means to make it available for his protection.

deceptions overruled. Judgment for plaintiffs.

Appleton, C. J. ; Kent, Walton, and Dickerson, JJ., concurred.
T. T. Snow, for the plaintiffs.
A. A. Strout, for the defendant.^

1 Ace: Rendell v. Harriman, 7.5 Me. 497 (1883).
Compare Kean v. Davis, 21 N.J. L. 683 (1847). — Ed.

624 LIEBSCHER V. KRAUS. [CHAP. IV.

LIEBSCHER, Appellant, v. KRAUS, Impleaded, Respondent.
Supreme Court of Wisconsin. 1889.

[74 Wis. 39,1.']

Appeal from the Circuit Court for Milwaukee County.

The ease is stated in the opinion.

For the appellant the cause was submitted on the brief of Frank J.
Lenicheck, attorney, and J. G. McKenney, of counsel.

For the respondent there was a brief by Winkler., Flanders^ Smith.,
Jiottum & Vilas, and oral argument b}' F. C. Winkler.

Orton, J. This action was brought on the following promissory
note : —
" $637.40. Milwaukee, January Ist, 1887.

' ' Ninety days after date we promise to pay to Leo Liebscher, or
order, the sum of six hundred and thirty-seven dollars and forty cents,
value received.

"San Pedro Mining and Milling Company.

" F. Kraus, President."

The plaintiff demands judgment on this note against both the cor-
poration and Frederick Kraus, as joint makers. The defendant Kraus
answered that he signed the note for the said San Pedro Mining &
Milling Compan}-, as its president, and not otherwise, and that his
signature was placed upon said note for the purpose of showing who
executed the same on behalf of said company, and as a part of the
corporation signature to the note, and for no other purpose. The
plaintiff offered to prove on the trial, substantially, that Kraus did not
sign the name of the company, but signed his own name as a joint
maker, intending to bind himself, and that this was according to the
understanding of the parties at the time. This ofler was rejected, and
a verdict in favor of Kraus was directed by the court. This evidence
is admissible only on the ground that there is an ambiguity in the signa-
tures to the note. If, in the law, this signing imports that both the
company and Kraus are jointly bound, or that only the company is
bound, there is no ambiguity, and parol evidence to alter or varj- this
effect is inadmissible. But if, in the law, such signing imports only that
both are bound, or that the company only is bound according to the
facts and circumstances in explanation of it and the intention or under-
standing of the parties, then there is an ambiguity and the evidence
was proper.

The contention of the learned counsel of the appellant that this sign-
ing imports that both are bound is inconsistent with the offer of such
evidence. The learned counsel of the appellant has expressed, in his
brief, the true principle as follows: "As to the question of parol evi-

SECT. III.] LIEBSCHER V. KEAUS. 625

dence, Ihe rule of law is that such evidence cannot be admitted to vary
the terms of a contract, or to show contrary intention than that dis-
closed by the instrument, unless there is an ambiguity." This has been
often decided to be the law by this court. Foster v. Clifford, 44 Wis,
5G9 ; Cooper /'. Cleghorn, 50 Wis. 113; Hubbard v. Marshall, oO Wis.
322; GiUman v. Henry, 53 Wis. 470.

TJjcre appears to be an inconsistency in cases where it is first held
that such a note ipso facto binds the person who signed it with his
ofTicial name, and yet that parol evidence might be given to make it
certain. lietfner v. Brownell, 70 Iowa, 51)1. This case is mentioned
as the only one in which it has been decided that such signing binds
the person as well as the corporation ; but there would seem to be
somewhat of an ambiguity in the opinion. In Bean v. Pioneer Mining
Co., 66 Cal. 451, it seems to have been decided that a similar note
bound the company alone, but that parol evidence was proper to ex-
plain it. No case is cited, and I can find none, where it has been
decided squarely that such a note bound both the company and the per-
son whose name appears below with the name of his office or agenc\',
or bound the company alone, except the case of Chase v. Pattberg,
12 Daly, 171, where the note was: "We promise to pa}-," etc.
" [Signed] P^nglish S. M. Co. H. Pattberg, Manager; " and it was
decided that the company' was not bound, but that Pattberg was. The
authorities are generalh^ the other way. In Draper v. Massachusetts
Steam-Heating Co., 5 Allen, 338, the note was: "We promise to
pay," etc. " [Signed] Massachusetts Steam-Heating Company. L. S.
Fuller, Treasurer." In Castle v. Belfast Foundry' Co., 72 Me. 167, it
was : " We promise to pay," etc., " at office Belfast Foundry- Company.
[Signed] Belfast Foundry Company. W. W. Castle, President."
In Falk v. Moebs, 127 U. S. 597, it was : " We promise to pay," etc.,
"to the order of Geo. Moebs, Sec. & Treas., at," etc. " [Signed]
Peninsular Cigar Co. Geo. Moebs, Sec. & Treas.," and indorsed
"Geo. Moebs, Sec. & Treas." These notes were held to be unambig-
uous, and not explainable by parol evidence, and the notes of the
companies alone.

Many other cases of similar signing are found in the above cases and
in the text-books. See, also, Mechem, Ag. § 439 ; 1 Rand. Com.
Paper, 188; 1 Daniel, Neg. Inst. §§ 299-305; Gillet v. New Market
Savings Bank, 7 Bradw. 499 ; Scanlan v. Keith, 102 111. 634 ; Latliam
V. Houston Flour-Mills, 68 Tex. 137; Story, Ag. § 154; Pars. Notes &
B. 312. The question comes very near, if not quite, having been
decided by this court in Houghton v. First Nat. Bank, 26 Wis. 663,
where it is held that an indorsement on a note not belonging to the
bank, by " Geo. Buckley, Cas.," he being cashier of the bank, bound
the bank and not himself. In Ballston Spa Bank v. Marine Bank, 16
Wis. 120, it is held that a note signed by "J. H. Sidmore, Cash.,"
bound the l)ank alone. In Rockwell v. Elkhorn Bank, 13 Wis. 653,
where the bank promises to paj' in the body of the note, and it is signed

fjZQ LIEBSCHER V. KRAUS. [ClIAP. IV.

onl}' bj' " D. D. Spenceu, Cashier," it was held tliat the bank oiilj- was
bound.

The principle of these authorities seems to be '' that if the agent sign
the note with his own name alone, and there is nothing on the face of
the note to show that he was acting as agent, he will be personall}'
liable : but if his agency appears with his signature, then his principal
only is bound." Here the corporation could not sign its own name,
and it is not otherwise shown on the face of the note than that Kraus
signed the corporate name, and by adding the word " President," to
his own name he shows conclusively that as president of the corpora-
tion he signed the note, and not otherwise. Such is the natural and
reasonable construction of these signatures, and so it would be gener-
ally understood. The affix, cashier, secretary, president, or agent, to
the name of the person sufficiently indicates and shows that such per-
son signed the bank or corporate name, and in that character and capa-
city alone. The use of the word "by" or "per" or "pro" would
not add to the certaint}- of what is thus expressed. It is not common
to use these words in commercial business. It is sufficiently under-
stood that the paper is signed b}- the officer or agent named, and for
the corporation. But it is useless to prolong this discussion. It is
almost too plain for argument. The note was that of the corporation
alone, signed by Kraus as its president. The Circuit Court properly
rejected the offer of parol proof, and correctly instructed the jury to
find a verdict in favor of Kraus.

By the Court. — T/ie Judgment of the Circuit Court is affirmed}

1 Ace. : Reeve v. First National Bank, 54 N. J. L. 208 (1891).
See Miller v. Roach, 150 Mass. 140 (1889).

For additional cases on the topic dealt with in this section, see 1 Ames' Cases on
Bills and Notes, 204, 2 id. 216, 221, 224, 550 et seq.— Ed.

SECT. I.J SCRIMSHIRE V. ALDEKTON. 627

CHAPTER V.
UNDISCLOSED PRINCIPAL.

SECTION I.
Whether the Principal can hold the Third Party.

SCRIMSHIRE V. ALDERTON.
Nisi Prius, Lee, C. J. 1742-43.

[2 Sir. 1182.]

The plaintiff, who was a farmer in the Isle of Ely, sent up oats to
Bear-Key, consigned to one Hunt as his factor. The custom of the
trade appeared to be, that formerly the factor had 4f?. per quarter for
selling them, and they gave immediate notice to the farmer of the
name of the buyer, and the price : but this being inconvenient to farm-
ers at a distance, it had for many years past been customar\- for the
farmer to allow '2d. per quarter more, upon the factor's taking the risk
of the debts : since which they had ceased to inform the farmers of the
buyers. The goods in the present case were sold ; but the factor fail-
ing, the plaintiff (before actual payment) gave notice to the defendant
(the buyer) not to pay the factor, which he did, notwithstanding : and
thereupon this action was brought.

The Chief Justice was of opinion, that this new method had not
deprived the farmer of his remedy against the buyer, provided there
was no payment to tha factor. And the onh' reason of advancing
2d. per quarter was, to have both at stake : and here being notice
before actual payment, there could be no harm done. And therefore
he directed the jury in favor of the plaintiff. They went out and found
for the defendant; were sent out a second and a third time to recon-
sider it, and still adhered to their verdict ; and being asked man by
man, tliey separately declared the}- found for the defendant. Upon
this a new trial was moved for, and no cause being shown was accord-
ingly granted. And at the sittings after this term it came on again
before a special jury ; when the Chief Justice declared, that a factor's
sale does b^- the general rule of law create a contract between the

628 COTHAY V. FENNELL. [CHAP. V.

owner and bu^'er. But notwithstanding this, the jur}' found for the de-
fendant ; and being asked their reason, declared, that tliey thought
from the circumstances no credit was given as between the owner and
buyer, and that the latter was answerable to the factor only, and he
only to the owner. ^

COTHAY AND OTHERS V. FENNELL and others.
King's Bench. 1830.

IIOB.^ C. 671.]

Assumpsit on a contract for the sale by defendants of a quantitj' of
Barbary gum to the plaintiffs. Plea, the general issue. On the
trial before Lord Tenterden, C. J., at the London sittings after last
Hilar}' term, it appeared that Cothay carried on business in London,
others of the plaintiffs at Glasgow, and the rest at Manchester. These
three firms had agreed to be interested in the purchase, but that Cothay
should be the actual purchaser ; and he gave the order, and the broker
knew him only. Upon this it was contended, that Cotha}' alone could
sue upon the contract so made. Lord Tenterden overruled the objec-
tion, and the plaintiffs had a verdict, the defendants having leave to
move to entei' a nonsuit.

Gurney now moved accordingl}-, and contended, that the private
agreement between the three houses did not give them a joint right of
action against the vendors. They were not all parties to the contract,
and if the vendors had been obliged to bring an action on the contract,
it must have been against Cotha}' alone. [Littledale, J. Cannot a
dormant partner sue on a contract made by the ostensible partners?]
Yes ; but there he is a party to the contract.

1 In Scott V. Surman, Willes, 400, 405-406 (1742-43), Willes, C. J., stated thus
the case of Gurratt r. Cullum, (K. B., 1710) : —

" The plaintiff being in Ireland employed Bartwell and Mason as his factors in
London to sell goods for hira, which he had sent to them. They sell a parcel to J. S.
for £20, the plaintiff not knowing to whom they were sold, nor J. S. whose goods
they were ; but they were delivered to him as the goods of B. and M. by a bill of par-
cels and charged to their account in their books mutually. B. and M. before pay-
ment became bankrupts, and their debts are assigned by the commissioners to the
defendant, who afterwards receives the £20 of J. S. The plaintiff brought an action
for money had and received to his use ; and this matter being referred by Holt for the
opinion of the King's Bench, judgment was given on argument for the plaintiff. After-
wards at Guildhall before Lord Chief Justice Parker, this case was cited and allowed to
be law, because though it was agreed that pay ment by J. S. to Bartwell and Mason with
whom the contract was made would be a discharge to J. S. against the principal, yet
the debt was not in law due to them, but to the person whose goods they were, and
therefore it was not assigned to the defendant by a general assignment of their debts,
but remained due to the plaintiff as before ; and being paid to the defendant who had
no right to have it, it must be considered in law as paid for the use of him to whom it
was due, and so an action will lie for money had and received to his use." — Ed.

SECT. I.] HUMBLE V. HUNTER. 629

Per Curiam. If an agent makes a contract in bis own name, the
principal may sue and be sued upon it ; for it is a general rule, that
whenever an express contract is made, an action is maintainable upcJn
it, either in the name of the person with whom it was actually made, or
in the name of the person with whom, in point of law, it was made.
In Young v. Hunter, 4 Taunt. 582, Gibbs, C. J., puts one special
instance to the contrary ; but that does not govern the present case.
Plere, Cothay may be considered as agent for the Glasgow and Man-
chester houses, or they may be treated as dormant partners in this
transaction ; and a dormant partner in one instance may sue as well
as a dormant partner in the general business of a mercantile house.

Mule refused

GRACE HUMBLE v. HUNTER.

Queen's Bench. 1848.

[12 Q. B. 310.]

Assumpsit, on a charter-party, for freight, demurrage, &c. The
declaration stated the instrument as "a certain charter-party of
affreightment, then made between the plaintiff, then and still being
the owner of the good ship or vessel called Ann" and the defendant.
Pleas: Non assumpsit ; and others which it is unnecessary to state.

On the trial, before Wightman, J., at the Durham Summer assizes,
1847, the charter-party was put in, signed, not b}- the plaintiff, but by
her son : and the words of agreement were : " It is " " mutualh' agreed
between C. J. Humble, Esq." (the son), " owner of the good ship or
vessel called The Ann" " and Jameson Hunter," the defendant.
Humble the son was called as a witness on behalf of the plaintiff, to
prove that she was the real owner of the vessel, and that he had signed
the charter-part}^ as her agent, and not as principal. This line of
examination was objected to on the ground that a person who has
signed a contract expressly as principal cannot be admitted to prove,
in contradiction to the written instrument, that he was merely an
agent. The evidence was received, and a verdict found for the
plaintiff. Watson, in Michaelmas term, 1847, moved for a new
trial on account of the reception of this evidence, and on other
grounds. The court granted a rule nisi, on this point onl}'.

Knowles and F. Hobinsoii showed cause.

Watson and PasMey, contra.

Lord Denman, C. J. "We were rather inclined at first to think that
this case came within the doctrine that a principal may come in and
take the benefit of a contract made by his agent. But that doctrine
cannot be applied where the agent contracts as principal ; and he has
done so here by describing himself as "owner" of the ship. The

630 HUMBLE V. HUNTER. [CHAP. T.

language of Lord Ellenborough in Lucas v. De la Cour, 1 M. & S.
249, '' If one partner makes a contract in his individual capacit}', and
the other partners are willing to take the benefit of it, the}- must be
content to do so according to the mode in which the contract was
made," is verj' apposite to the present case.

Patteson, J. The question in this case turns on the form of the
contract. If the contract bad been made in the son's name merel}',
without more, it might have been shown that he was agent onh", and
that the plaintiff was the principal. But, as the document itself repre-
sents that the son contracted as " owner," Lucas v. De La Cour
applies. There the partner who made the contract represented that
the propert}- which was the subject of it belonged to him alone. The
plaintiff here must be taken to have allowed her son to contract in this
form, and must be bound b}' his act. In Robson v. Drummond, 2
B. & Ad. 303, where Sharpe, a coachraaker, with whom Robson was a
dormant partner, had agreed to furnish the defendant with a carriage
for five 3'ears, at a certain jearly sum, and had retired from the busi-
ness, and assigned all his interest in it to C. before the end of the first
three years, it was held that an action could not be maintained by the
two partners against the defendant, who returned the carriage, and
refused to make the last two yearly payments. In this case I was at
first in the plaintiff's favor on account of the general principle re-
ferred to b}' m}- Lord ; but the form of the contract takes the case out
of that principle.

WiGHTMAN, J.' I thought at the trial that this case was governed
b}' Skinner v. Stocks, 4 B. & Aid. 437. But neither in that nor in
any case of the kind did the contracting part}' give himself an}' special
description, or make any assertion of title to the subject-matter of the
contract. Here the plaintiff describes himself expressly as " owner"
of the subject-matter. This brings the case within the principle of
Lucas V. De La Cour and the American authorities cited.

Lord Denman, C.J. Robson v. Drummond, which my Brother
Patteson has cited, seems the same, in principle, with the present
case. You have a right to the benefit you contemplate from the
character, credit, and substance of the party with whom }ou contract.

Itule absolute.

1 CoLERiDOE, J., having heard the argument for the defendant onlj, gave no
judgment. — Rep.

SECT. 1. 1 SCHMALTZ V. AVERY. 631

SCHMALTZ V. AVERY

Queen's Bench. 1851.

[16 Q. B. 655.]

Assumpsit on a memorandum of charter between the defendant as
shipowner and the plaintiff as freighter. Breach : that defendant would
not receive cargo. Plea : JVbn assumpsit. Issue thereon. Other
issues of fact, which it is unnecessary to state.

On the trial, before Wigiitman, J., at the Newcastle summer assizes,
1850, it appeared that the plaintiff carried on business under the firm
of Schmaltz & Co. The execution of a charter-party by the defendant
was proved. It was expressed to be made between the defendant as
owner of the ship of the one part " and G. Schmaltz & Co. (agents of
the freighter) of the other part." At the end of the charter-party
there was a memorandum in these terms: '♦ This charter being con-
cluded on behalf of another party, it is agreed that all responsibility on
the part of G. Schmaltz & Co. shall cease as soon as the cargo is
shipped." In the declaration no notice was taken of this memoran-
dum : in other respects the agreement set out corresponded with that
proved. Oral evidence was given that the plaintiff was in truth prin-
cipal. The learned judge directed a verdict for the defendant on the
issue upon JVbfi (fssvmpsif, leave being reserved to move to enter a
verdict for the plaintiff on that issue. The other issues were left to the
jury, who found a verdict for the plaintiff for £5 10s., subject to leave
to enter a verdict for the defendant on another issue.

Kiioides obtained a rule nisi to enter a verdict for the plaintiffs on
the issue joined on the plea of wo;i assumpsit.

Watson and Unthank showed cause.

Knoides and Udall, contra.

Patteson, J.^ It is conceded that, if there had been a third party
who was the real freightei-, such part}' might have sued, although his
name was not disclosed in the charter-part}'. But the question is,
whether the plaintiff can fill both characters of agent and principal ; or,
rather, whether he can repudiate that of agent and adopt that of prin-
cipal ; both characters being referred to in the charter-part}", but the
name of the principal not being therein mentioned. The cases princi-
pally relied on for the defendant were Bickerton v. Burrell, 5 M. & S.
383, and Rayner v. Grote, 15 M. & W. 359, in both which cases the
supposed principal was named in the instrument of contract : also the
case of Humble v. Hunter, 12 Q. B. 310. In the case of Bickerton
V. Burrell, the plaintiff, on the face of the contract, professed to

1 After stating the case. — Ed.

632 SCHMALTZ V. AVERY. [CHAP. V.

enter into it as agent for C. Richardson. At the trial, C. Richardson
was called to prove that her name was used without her knowledge,
and that she had notliing to do with the contract. Lord P^llenborough
refused to receive the evidence, and nonsuited the plaintiff. A rule
nisi to set aside the nonsuit was obtained, but on argument was dis-
charged, on the ground that a person who has exhibited himself as
agent for another whom he names, cannot at once throw off that char-
acter and put himself forward as principal without an}- communication
or notice to the other party. All the judges relied on the want of such
notice, which seems to have been the chief ground of their decision ;
for the}' considered that the defendant was thereby placed in great
difficulty, as he had contracted in point of law with Richardson and
not with the plaintiff, and might have no means of ascertaining or even
conjecturing that she was not the real part}- The soundness of that
ground of decision was somewhat doubted in the late case of Rayner v.
Grote, 15 M. & W. 359. There the plaintiff contracted as agent for
Johnson, but was in truth himself the principal. He sued the defend-
ant for not accepting and paying for goods. The defendant had
accepted and paid for a great part of the goods sold, and knew, before
he refused the residue, that the plaintiff was the real principal : and so
the case was distinguishable from that of Bickerton v. Burrell, 5 M. &
S. 383, upon the very ground on which that decision proceeded ; and
the plaintiff was held to be entitled to sue.^ . . . The case of Jenkins
V. Hutchinson, 13 Q. B. 744, was also cited for the defendant: but it
proceeded on a different ground, and is not applicable to the present
question. There the defendant was sought to be charged as principal
on a charter-party executed b}' him, on the face of it, as agent for
Barnes. He had in truth no authority from Barnes ; nor was he him-
self interested at all ; and the Court held that he could not be sued as
principal without showing that he really was so. A distinction was
taken, on the argument in the present case, b}' the defendant's counsel,
between an executed and an executor}' contract : and it was said that,
whatever might be the rule in the former class of cases, where the de-
fendant has received the benefit of tlie contract, and it is probably
immaterial to liim whom he pays, yet that in the latter class the defend-
ant cannot properly be held answerable to B., having expressly con-
tracted with A. And a passage in the judgment of the court in Rayner
V. Grote, 15 M. & W. 359, 365, was much relied on. " If, indeed, the
contract had been wholly unperformed, and one which the plaintiff, by
merely proving himself to be the real principal, was seeking to enforce,
the question might admit of some doubt. In many such cases, such
as, for instance, the case of contracts in which the skill or solvency
of the person who is named as the principal may reasonably be con-
sidered as a material ingredient in the contract, it is clear that the
agent cannot then show himself to be the real principal, and sue in his

1 Here was stated Humble v. Hunter, ante, p. 629. — Ed.

SECT. I.] SCHMALTZ V. AVEKV. 633

own name ; and perhaps it may be fairly urged that this, in all execu-
tory contracts, if wholly unperformed, or if partly performed without
the knowledge of who is the real principal, may be the general rule."
With this passage we entirely agree ; but it is plain that it is applicable
only to cases where the supposed principal is named in the contract :
if he be not named, it is impossible that the other party can have
been in any way induced to enter into .the contract by any of the
reasons suggested.

In the present case, the names of the supposed freighters not being
inserted, no inducement to enter into the contract from the supposed
solvency of the freighters can be surmised. An}' one who could prove
himself to have been the real freighter and principal, whether solvent
or not, might most unquestionably' have sued on this charter-party.
The defendant cannot have been in any wa}' prejudiced in respect to
any supposed reliance on the solvency of the freighter, since the
freighter is admitted to have been unknown to him, and he did not
think it necessary to inquire who he was. It is indeed possible that he
may have been contented to take any freighter and principal provided
it was not the present plaintiff, and may have relied on the terms of
the charter-part}' indicating that the plaintiff was an agent ouh', being
willing to accept of any one else, be he who he might, as principal
After all, therefore, the question is reduced to this : Whether we are to
assume that the defendant did so rely on the character of the plaintiff
as agent onl}', and would not have contracted with him as principal if
he had known him so to be, and are to lay it down as a broad rule that
a person contracting as agent for an unknown and unnamed principal is
precluded from saying, I am myself that principal. Doubtless his sa}'-
ing so does in some measure contradict the written contract, especially
the concluding clause which sa3's : "This charter being concluded on
behalf of another partv," &c. ; for there was no such other parts'. It
ma}' be that the plaintiff entered into the charter-party for some other
party, who had not absolutely authorized him to do so, and afterwards
declined taking it ; or it may be that he intended originally to be the
principal: in either case the charter-party would be, strictly speak-
ing, contradicted : yet the defendant does not appear to be prejudiced ;
for, as he was regardless who the real freighter was, it should seem
that he trusted for his freight to his lien on the cargo. But there
is no contradiction of the charter-party if the plaintiff can be con-
sidered as filling two characters, namely those of agent and principal.
A man cannot in strict propriety of speech be said to be agent to him-
self. Yet, in a contract of this description, we see no absurdity in
saying that he might fill both characters ; that he might contract as
agent for the freighter, whoever that freighter might turn out to be,
and might still adopt that character of freighter himself if he chose.

There is nothing in the argument that the plantiff's responsibility is
expressly made to cease " as soon as the cargo is shipped ; " for that
limitation plainly applies only to his character as agent; and, being

634 HUNTINGTON V. KNOX. [CHAP. V.

real principal, his responsibilit\' would unquestionably continue after
the cargo was shipped.

Upon the whole, we are of opinion that this rule must be made
absolute. Hule absolute}

MEHITABEL HUNTINGTON v. KNOX.
Supreme Judicial Court of Massachusetts. 1851.

[7 Cush. 371.2]

Shaw, C. J. This action is brought to recover the value of a
quantity of hemlocic barli, alleged to have been sold by the plaintiff
to the defendant, at certain prices charged. The declaration was for
goods sold and delivered, with the usual monej' counts. The case
was submitted to a referee by a common rule of court, who made an
award in favor of the plaintiff, subject to the opinion of the court on
questions reserved, stating the facts in his report, on which the decision
of those questions depends.

The facts tended to show that the bark was the property of the
plaintiff ; that the contract for the sale of it was made by her agent,
George H. Huntington, by her authority ; that it was made in writing
b}' the agent, in his own name, not stating his agency, or naming or
referring to the plaintiff, or otherwise intimating, in the written
contract, that any other person than the agent was interested in the
bark.

Objection was made, before the referee, to the admission of parol
evidence, and to the right of the plaintiff to maintain the action in
her own name. The referee decided both points in favor of the plain-
tiff, holding that the action could be maintained by the principal and
owner of the property, subject to any set-off or other equitable defence,
which the buyer might have, if the action were brought by the agent.

The court are of opinion, that this decision was correct upon both
points. Indeed they resolve themselves substantially into one; for
prima facie, and looking only at the paper itself, the property is sold
by the agent, on credit; and in the absence of all other proof, a
promise of payment to the seller would be imphed by law; and if
that presumption of fact can be controverted, so as to raise a promise
to the principal by implication, it must be by evidence aliunde, proving
the agency and property in the principal.

It is now well settled by authorities, that when the property of one
is sold by another, as agent, if the principal give notice to the pur-
chaser, before payment, to pay to himself, and not to the agent, the

1 See Hunter v. Giddings, 97 Mass. 41 (1867). —Ed.
^ Only the opinion is reprinted. — Ed.

SECT. I.] HUNTINGTON V. KNOX. 635

purchaser is bound to pay the principal, subject to an}' equities of
the purchaser against the agent.

When a contract is made by deed under seal, on technical grounds,
no one but a party to the deed is liable to be sued upon it ; and there-
fore, if made b}' an agent or attorne}-, it must be made in the name of
the principal, in order that he may be a part}', because otherwise he is
not bound by it.

But a different rule, and a far more liberal doctrine, prevails in
regard to a written contract not under seal. In the case of Higgins w.
Senior, 8 Mees. & Welsh. 834, it is laid down as a general proposition,
that it is competent to show that one or both of the contracting parties
were agents for other persons, and acted as such agents in making the
contract of sale, so as to give the benefit of the contract, on the one
hand, to, and charge with liability on the other, the unnamed princi-
pals ; and this whether the agreement be or be not required to be in
writing, by the Statute of Frauds. But the court mark the distinction
broadly between such a case and a case where an agent, who has con-
tracted in his own name, for the benefit, and by the authoritj' of a
principal, seeks to discharge himself from liability, on the ground' that
he contracted in the capacit}' of an agent. The doctrine proceeds on
the ground that the principal and agent may each be bound ; the
agent, because b}' his contract and promise lie has expressly bound
himself; and the principal, because it was a contract made by his
authority for his account. Paterson u. Gandasequi, 15 East, 62;
Magee v. Atkinson, 2 Mees. & Welsh. 440; Trueman v. Loder, 11
Ad. «& El. 589 ; Taintor u. Prendergast, 3 Hill, 72 ; Edwards v.
Golding, 20 Vt. 30. It is analogous to the ordinar}' case of a
dormant partner. He is not named or alluded to in the contract ;
yet as the contract is shown in fact to be made for his benefit,
and by his authorit}', he is liable.

So, on the other hand, where the contract is made for the benefit of
one not named, though in writing, the latter ma}' sue on the contract,
jointly with others, or alone, according to the interest. Garrett v.
Handley, 4 B. & C. 664 ; Sadler v. Leigh, 4 Campb. 195 ; Coppin v.
Walker, 7 Taunt. 237 ; Story on Agency, § 410. The rights and
liabilities of a principal, upon a written instrument executed by his
agent, do not depend upon the fact of the agency appearing on the
instrument itself, but upon the facts; 1, that the act is done in the
exercise, and 2, within the limits, of the powers delegated ; and these
are necessarily inquirable into by evidence. Mechanics' Bank v. Bank
of Columbia, 5 Wheat. 326.

And we think this doctrine is not controverted by the authority of
any of the cases cited in the defendant's argument. Hastings v.
Lovering, 2 Pick. 214, was a case where the suit was brought against
an agent, on a contract of warranty upon a sale made in his own name.
The case of the United States v. Parmele, Paine, 252, was decided on
the ground that, in an action on a written executory promise, none

636 RAILTON V. HODGSON. [CHAP. V.

but the promisee can sue. The court admit that, on a sale of goods
made by a factor, the principal may sue.

This action is not brought on anj- written promise made by the
defendant ; the receipt is a written acknowledgment, given bj' the
plaintiff to the defendant, of part pa^-ment for the bark, and it ex-
presses the terms upon which the sale had been made. The defendant,
b}' accepting it, admits the sale and its terms ; but the law raises the
promise of payment. And this is by implication, prima facie^ a
promise to the agent ; yet it is only prima facie^ and may be con-
trolled b}' parol evidence that the contract of sale was for the sale of
property' belonging to the plaintiff, and sold b}' her authority- to the
defendant, by the agenc}' of the person with whom the defendant
contracted.

We are all of opinion that the provisions of Rev. Sts. c. 28, § 201,
do not apply to the sale of bark, as made in this case.

Judgment on the award for the plaintiff.^

SECTION II.

Whether the Third Party can hold the Principal.

RAILTON V. HODGSON.
PEELE V. HODGSON.
Nisi Prius. 1804.

[4 Taunton, .576, n. (a).]

The facts were, that the defendant, Hodgson, had formerly been a
clerk with Smith, Lindsay, & Co., which the vendors knew; that he
purchased goods himself, and directed the vendors to draw bills upon
Smith, Lindsay & Co., and make out invoices to that house, which was
then a house of good credit, and without whose security Hodgson could

1 In Edwards v. Golding, 20 Vt. 30 (1847), Mills, agent of Edwards, but supposed
to be acting for himself alone, sold Edwards' goods to Golding & Peabody. After-
wards, in Mills' absence and as his representative, Edwards executed a bill of sale in
this form : " Golding & Peabody bought of J. W. Mills, 15 tons ... old iron . . .
$271.99. Rec'd note at four months. . . . Burlington, 6th June. J. W. Mills, per J.
H. towards." The note having been paid, an action for the remainder of the pur-
chase price was brought in the name of Edwards. It was held that Edwards could
recover. Bennett, J., delivering the opinion of the court, said : " We do not think
that it impugns any rule of law to allow it to be shown by parol that Mills in the sale
was but the agent of the plaintiff. It is consistent with the bill of sale that the de-
fendants bought the iron of Mills either as agent or principal. It does not profess
to state in what capacity he was acting ; and, without any violence to language, an
agent might adopt the phraseology in this bill of sale." — Ed.

SECT. II.] THOMSON V. DAVENPORT. 637

not have obtained credit and made tlie purchases. Smith, Lindsay,
and Co. received from the defendant a commission of from 2 and half
to 5 per cent upon the goods. The vendors entered the goods in their
own books, in the names of Smith, Lindsay, and Co., made out the
invoices in the names of, and sent them to Smith, Lindsay', and Co.,
and drew bills upon them for the amount, which Smith, Lindsay, and
Co. accepted. The defendant insisted that he purchased as the agent
of Smith, Lindsay, and Co., and in their names, and on their account,
as he used to do when in their employ. There was proof, however, of
his being the principal, and having bought the goods on his own account.
The plaintiffs obtained a verdict, and Mansfield, C. J., in summing
up the evidence, observed to the jury, " that it was admitted these
goods were never delivered to Smith, Lindsa}', & Co. ; the defendant
had the goods, and the profits and loss. Smith, Lindsa}', and Co.
were only to have a commission, for which they lent their credit.
Suppose a principal authorizes a factor to sell goods, and he sells in his
own name, the principal may call upon the vendee for payment. It
appeared that Hodgson had been a trader from 1798. Suppose
Hodgson had not been known to be the buyer, he would have been
liable ; Smith, Lindsa}', and Co. would only have been nominal buyers.
If Hodgson had really paid Smith, Lindsay, & Co., it would have
depended upon circumstances whether he would be liable to pay for the
goods over again ; if it would have been unfair to have made him liable
he would not have been so. What pretence was there that the plaintiffs
should be thrown upon the insolvent estate of Smith, Lindsaj-, & Co.,
who never had the goods? This was a stronger case than that of a
dormant partner. The buyer must be liable, though a third person
may also, unless there is an express agreement that the buyer shall not
be liable." The jury found a verdict for the plaintiffs. A motion was
made in the following term to set aside the verdict, and have a new
trial ; but the Court refused it.

THOMSON r. DAVENPORT and others.

King's Bench. 1829.

[9 B. S^ C. 78.]

This was a writ of error, brought upon a judgment obtained in the
borough court of Liverpool against the plaintiff in error. The plaintiff
below declared for goods sold and delivered. Plea, general issue.
Upon the trial before the mayor, and baililTs, assisted by the recorder,
a bill of exceptions was tendered to the direction given by the mayor,
bailiffs, etc., by the said recorder to the jury. The bill of exceptions
stated that one Thomas M'Kune was produced and examined upon oath

638 THOMSON V. DAVENPORT. [CHAP. V.

as a witness by the counsel for the plaintiffs, to maintain the issue on
their parts. And M'Kune stated in evidence that he, M'Kune, was
established in Liverpool as a general Scotch agent, and amongst others,
acted as agent for the defendant, who resided in Dumfries ; that, in
March, 1823, he received from the defendant a letter, containing an
order to purchase various goods, and, amongst others, a quantity of
glass and earthenware ; which letter, with the order, was produced
by the plaintitfs' attorney', and was read in evidence as follows :
'•Dumfries, 29th March, 1823. Annexed is a list of goods which you
will procure and ship per Nancij. Memorandum of goods to be
shipped : twelve crates of Staffordshire ware, crown window glass, ten
square boxes," &c., «&;c. That he, M'Kune, provided himself with the
goods mentioned in this letter, and that he got the glass and earthen-
ware from the plaintiffs, who were glass and earthenware dealers in
Liverpool : that at the time he ordered the glass and earthenware he
saw the plaintiff, Mouutford Fynney, himself, and, to the best of his
recollection, told him, that he, M'Kune, had an order to purchase some
goods, and that the}' were the same house for whom he had purchased
goods from the plaintiffs the preceding year ; and he also stated, to the
best of his recollection, that as he was a stranger to the nature of the
goods, he hoped that the plaintiffs would let him have the same as be-
fore, to save him from blame by his employer; but he, M'Kune, did not
show the plaintiffs the letter containing the order, nor did he mention
the name of any principal ; that he then either gave the plaintiff,
Mountford Fynney, a cop^' of the order, or produced to him the
original order, that Fj'nney might himself take a cop}', but he rather
thought the former was the fact, and that the plaintiff Fynney did not
see the original, though he could not say positively ; that the plaintiff
accordingly furnished the glass and earthenware, the amount of which,
deducting the discount, was £193 Is. 8d., but adding the discount,
£219 10s., and rendered invoices thereof to M'Kune, headed thus:
"Mr. Thomas M'Kune bought of John and James Davenport" (which
was the plaintiffs' firm) ; that M'Kune entered the net amount (£193
7s. 8(1), to the credit of the plaintiffs in an account with them in his
books, and charged the same sum, with the addition of 2 per cent for
the commission, to the debit of the defendant in an account with him,
which was according to his invariable course of dealing ; and that he sent
to the defendant a general invoice of all the goods purchased, comprising
the glass and earthenware, but not mentioning the plaintiffs' names ;
that afterwards, in April, 1823, and before the credit for the goods had
expired, M'Kune became insolvent, though up to the day of his stopping
payment he was in good credit, and could have bought goods on trust
to the amount of £20,000 ; whereupon the said mayor and bailiffs, by
the said recorder, after stating the evidence, told the jury that, from
the distance of time since the sale took place, there was some uncer-
tainty in the evidence of M'Kune as to the precise words used by him
to the plaintiffs at the time he gave them the order for the goods ; but it

SECT. II.J THOMSON V. DAVENPORT. 639

appeared to them (the said recorder) upon the evidence, that the name
of the defendant as principal was not then communicated or known to
the ijlaintiffs ; and directed the jury that if they were of opinion that the
defenchmt's name as principal was mentioned by M'Kune to tlie plain-
tiffs at the time the order was given, or that the plaintiffs then knew that
the defendant was the principal, their verdict ought to be for the defend-
ant ; but if the}' were of opinion that the defendant's name as the principal
was not mentioned by M'Kune to the plaintiffs at the time of the order
being given, and that the plaintiffs did not then know that the defendant
was the principal, and they did not think, upon all the said facts of the
case, that the plaintiffs at the time of the order being given knew who
the principal was, so tiiat they then had a power of electing whether
the}- would debit the defendant or M'Kune, the}- ought to find a verdict
for the plaintiffs ; and tliat, although the plaintiffs at the time of the
sale might think that M'Kune was not buying the goods upon his own
account, yet if his principal was not communicated or made known to
them, that circumstance ought to make no difference in the case. The
jury, after finding as a fact that the letter containing the order was not
sliown and made known to the plaintiffs, gave their verdict for the
plaintiffs below for £219 \0s. It was contended that the mayor and
bailiffs, by the recorder, ought to have directed the jury that if the}'
were satisfied that Davenport, &c. at the time of the order being given
knew that M'Kune was buying the goods as an agent, even though his
principal was not communicated or made known to them, they, by
afterwards debiting M'Kune, and so rendering the said invoices, had
elected to take him for their debtor, and had precluded themselves
from calling on Tliomson.

Joi^/ for the plaintiff in error.

Patteso?i, contra.

Lord Tenterden, C. J. I am of opinion that the direction given by
the learned recorder in this case was right, and that the verdict was
also right. I take it to be a general rule, that if a person sells goods
(supposing at the time of the contract he is dealing with a principal),
but afterwards discovers that the person with whom he has been dealing
is not the principal in the transaction, but agent for a third person,
though he may in the mean time have debited the agent with it, he may
afterwards recover the amount from the real principal ; subject, however,
to this qualification, that the state of the account between the principal
and the agent is not altered to the prejudice of the principal. On the
other hand, if at the time of tlie sale the seller knows, not only that the
person who is nominally dealing with him is not principal but agent,
and also knows who the principal really is, and, notwithstanding all that
knowledge, chooses to make the agent his debtor, dealing with him and
him alone, then, according to the cases of Addison v. Gandasequi,
4 Taunt. 574, and Paterson v. Gandasequi, 15 East, 62, the seller can-
not afterwards, on the failure of the agent, turn round and charge the
principal, having once made his election at the time when he liad the

640 THOMSON V. DAVENPORT, [CIIAP. V.

power of choosing between the one and the other. The present is a
middle case. At the time of the dealing for the goods, the plaintiffs were
informed thatM'Kune, who came to them to buy the goods, was dealing
for another, that is, that he was an agent, but the^- were not informed
who the principal was. They had not, therefore, at that time the means
of making their election. It is true that they might, perhaps, have
obtained those means if they had made further inquiry ; but they made
no further inquir}'. Not knowing who the principal really was, they
had not the power at that instant of making their election. That
being so, it seems to me that this middle case falls in substance and
effect within the first proposition which I have mentioned, the case of
a person not known to be an agent ; and not within the second, where
the bu\er is not merely known to be agent, but the name of his prin-
cipal is also known. There ma}' be another case, and that is where
a British merchant is buying for a foreigner. According to the
universal understanding of merchants, and of all persons in trade,
the credit is then considered to be given to the British buyer, and not
to the foreigner. In this case, the buyers lived at Dumfries ; and a
question might have been raised for the consideration of the jur}',
Whether, in consequence of their living at Dumfries, it may not have
been understood by all persons at Liverpool, where there are great
dealings with Scotch houses, that the plaintiffs had given credit to
M'Kune only, and not to a person living, though not in a foreign
country, yet, in that part of the king's dominions which rendered him
not amenable to any process of our courts? But, instead of directing
the attention of the recorder to any matter of that nature, the point
insisted upon by the learned counsel at the trial was, that it ought to
have been part of the direction to the jury, that if they were satisfied
the plaintiflls, at the time of the order being given, knew that M'Kune
was buying goods for another, even though his principal might not
be made known to them, they, by afterwards debiting M'Kune, had
elected him for their debtor. The point made by the defendant's
counsel, therefore, was, that if the plaintiffs knew that M'Kune was
dealing with them as agent, though they did not know the name of the
principal, they could not turn round on him. The recorder thought
otherwise : he thought that though they did know that M'Kune was
buying as agent, yet, if they did not know who his principal really was,
so as to be able to write him down as their debtor, the defendant was
liable, and so he left the question to the jury, and I think he did riglit in
so doing. The judgment of the court below must therefore be aflSrmed.
Baylev, J. There may be a course of trade by which the seller
will be confined to the agent who is buying, and not be at liberty at all
to look to the principal. Generally speaking, that is the case where
an agent here buys for a house abroad. There may also have been
evidence of a course of trade, applicable to an agent living here acting
for a firm resident in Scotland. But that does not appear to have
been made a point in this case, and it is not included in the objection

SECT. II.] THOMSON V. DAVENPORT. 641

which is now made to the charge of the recorder. In my opinion,
the direction of the recorder was right ; and it was, with the limits I
Lave mentioned, perfectly consistent with the justice of tiie case.
Where a purchase is made by an agent, the agent does not of necessity
so contract as to make himself personally liable ; but he may do so.
If he does make himself personally liable, it does not follow that the
principal may not be liable also, subject to this qualification, that the
principal shall not be prejudiced by being made personally liable, if
the justice of the case is that he should not be personally liable. If the
principal has paid the agent, or if the state of accounts between the agent
here and the principal would make it unjust that the seller should call on
the principal, the fact of payment, or such a state of accounts, would be
an answer to the action brought by the seller where he had looked to
the responsibility of the agent. But the seller, who knows who the
principal is, and instead of debiting that principal debits the agent, is
considered, according to the authorities which have been referred to,
as consenting to look to the agent only, and is thereb}' precluded from
looking to the principal. But there are cases which establish this
position, that although he debits the agent who has contracted in such
a way as to make himself personally liable, yet, unless the seller does
something to exonerate the principal, and to say that he will look to
the agent only, he is at liberty to look to the principal when that
principal is discovered. In the present case the seller knew that there
was a principal ; but there is no authority to show that mere knowledge
that there is a principal, destroys the right of the seller to look to that
principal as soon as he knows who that principal is, provided he did not
know who he was at the time when the purchase was originalh" made.
It is said, that the seller ought to have asked the name of the principal,
and charged him with the price of the goods. By omitting to do so,
he might have lost his right to claim payment from the principal, had
the latter paid the agent, or had the state of the accounts between the
principal and the agent been such as to make it unjust that the former
should be called upon to make the payment. But in a case circum-
stanced as this case is, where it does not appear but that the man who
has had the goods has not paid for them, what is the justice of the case?
That he should paj- for them to the seller or to the solvent agent, or to
the estate of the insolvent agent, who has made no payment in respect
of these goods. The justice of the case is, as it seems to me, all on one
side, namely, that the seller shall be paid, and that the bu3'er (the
principal) shall be the person to pay him, provided he has not paid any
body else. Now, upon the evidence, it appears that the defendant
had the goods, and has not paid for them either to M'Kune or to the
present plaintiffs, or to an}" bod}' else. He will be liable to pay for
them either to the plaintiffs or to M'Kune's estate. The justice of the
case, as it seems to me, is, that he should pay the plaintiffs who were
the sellers, and not any other person. I am, therefore, of opinion that
the direction of the recorder was right.

642 THOMSON V. DxVVENrORT. [CHAP. V.

LiTTLEDALE, J. The general principle of law is, that the seller
shall have his remedy against the principal, rather than against any
other person. Where goods are bought b}- an agent, who does not at
the time disclose that he is acting as agent, the vendor, although he
has debited the agent, may upon discovering the principal, resort to
him for payment. But if the principal be known to the seller at the
time when he makes the contract,. and he, with a full knowledge of the
principal, chooses to debit the agent, he thereby makes his election,
and cannot afterwards charge the principal. Or if in such case he
debits the principal, he cannot afterwards charge the agent. There
is a third case : the seller may, in his invoice and bill of parcels,
mention both principal and agent ; he may debit A. as a purchaser
for goods bought through B., his agent. In that case, he thereby
makes his election to charge the principal, and cannot afterwards
resort to the agent. The general principle is, that the seller shall
have his remedy against the principal, although he may, by electing to
take the agent as his debtor, abandon his right against the principal.
The present case diflfers from any of those which I have mentioned.
Here the agent purchased the goods in his own name. The name
of the principal was not then known to the seller, but it afterwards
came to his knowledge. It seems to me to be more consistent with
the general principle of law that the seller shall have his remedy
against the principal, rather than against any other person, to hold
in this case that the seller, who knew that there was a principal, but
did not know who that principal was, may resort to him as soon as he is
discovered. Here the agent did not communicate to the seller sufficient
information to enable him to debit any other individual. The seller
was in the same situation, as if at the time of the contract he had
not known that there was any principal besides the person with whom
he was dealing, and had afterwards discovered that the goods had
been purchased on account of another ; and in that case it is clear that
he might have charged the principal. It is said that he ought to have
ascertained by inquiry of the agent who the principal was, but I think
that he was not bound to make such inquiry, and that by debiting the
agent with the price of the goods, he has not precluded himself from
resorting to the principal, whose name was not disclosed to him. It
might have been made a question, whether it was not a defence to this
action that the principal resided in Scotland. But that was not a point
made at the trial, nor noticed in the bill of exceptions ; we cannot,
therefore, take it into our consideration. For the reasons already
given, I think the plaintiff is entitled to recover.

Judgmeyit affirmed}

Parke, J., having been concerned as counsel in the cause, gave no
opinion.

•1 See Paterson v. Gandasequi, ante, p. 527 ; Huttou v. Bulloch, L. R. 9 Q. B. 572
{Ex. Ch. 1874). — Ed.

SECT. II.] PENTZ V. STANTON. 643

PENTZ V. STANTON.
Supreme Coukt of New Yokk. 1833.

[10 Wend. 271.]

This was an action of assumpsit, tried at the Madison Circuit in
September, 1830, before the Hon. Nathan Williams, one of the circuit
judges.

Tlie first count in the declaration was on a bill of exchange for
$li38.36, bearing date 2oth Ma}-, 1826, charged to have been drawn
by one Henry F. West, by the name and description of H. F. West,
agent, he, the said West, then and there being the agent and servant
of the defendant in that behalf, according to the custom of merchants.
The bill was drawn on one James Carey, payable four months after
date, was accepted by Carey, and when due was protested for non-
payment, and notice of non-payment was alleged to have been given to
the defendant. There was also the common counts for goods sold and
delivered to the defendant, and for money lent, &c. The defendant
pleaded the general issue, and specially that the bill of exchange
counted upon was received and accepted b}' the plaintiff in satisfaction
of the goods sold ; as to which the plaintiff took issue. On the trial
the bill was produced, and purported to be signed H. F. West, agent.
A regular protest was shown, and notice of the same addressed to and
received by West at Manchester, in Oneida County, where West at the
date of the bill, and before and since as the agent of the defendant,
superintended a woollen manufactory belonging to the defendant, who
resided at Pompe}- in Onondaga Count}-, and spent onl}- a portion of
his time at the factory. West testified that he was authorized by the
defendant to make notes and draw bills of exchange in the name of the
defendant and as agent in his behalf; that the bill in question was
given on the purchase by him of a quantity of d^-e-stuffs of the plaintiff
for the defendant, taken to and used in the factor}- and in the business
of the defendant ; that when he called for the goods, he proposed to
the plaintiff to give him the bill in question, who agreed to accept and
did accept the same, giving him, the witness, a bill of the goods,
headed, " Mr. H. F. West, Agent, bought of W. A. F. Pentz," and re-
ceipting the draft at the bottom. He further testified, that he informed
the defendant of the drawing of the bill of exchange, and delivered the
notice of protest to him, but did not do so until several weeks after he
had received it ; that the letters relating to the factory business were
generally sent to Manchester, sometimes addressed to the defendant
and sometimes to the witness as agent ; and that he always opened
them, whether addressed to his principal or himself. It further ap-
peared that the acceptor failed before the bill fell due, and that on the
day after the bill was protested, the plaintiff addressed a letter to West,
complaining that he had suffered the protest, as he had been apprised

644 PENTZ V. STANTON. [CHAP. V.

by the acceptor of his inability to meet it. On this evidence, the
defendant's counsel insisted that the plaintiff was not entitled to re-
cover ; but the judge ruled that he was entitled to recover, and so
instructed the jury, who accordingly found the amount of the bill,
with interest. The defendant moves for a new trial.

J*. Gridlei/y for the defendant.

tT. A. Spencer, for the plaintiff.

£1/ the Court, Sutherland, J. The plaintiff cannot recover upon
the bill of exchange against the present defendant. His name no-
where appears upon it. It was drawn and subscribed by West in his
own name, with the simple addition of " agent," but without any
specification whatever of the name of the principal. Mr. Chitty, in his
valuable Treatise on Bills, says, page 22, " It is a general rule that no
person can be considered a part}' to a bill, unless his name or the name
of the firm of which he is a partner, appear on some part of it ; " and
Mr. Justice Buller, in Fenn v. Harrison, 3 T. R. 761, observes, that in
the case of bills of exchange, we know precisel}' what remedy the holder
has, if the bill be not paid ; his security- appears wholl}^ on the face of
the bill itself; the acceptor, the drawers, and the indorsers are all
liable in their turns, but they are only liable because they have written
their names on the bill ; but this is an attempt to make some other per-
sons liable, whose names do not appear on the bill.^ . . .

The next inquiry is whether the defendant is liable upon the counts
for goods sold and delivered. West was examined as a witness, and
testified that he was the agent of the defendant in carrying on a woollen
manufactor}' in Oneida Count}^ ; that the goods for which he gave the bill
were purchased for the defendant, and were used in his business of manu-
facturing ; that he had authorit}- to draw bills of exchange and notes in
the name of the defendant ; that when he called for the goods in this
case, he proposed to let the plaintiff have the draft in question ; that the
plaintiff said he would inquire about the drawee, and did so, and after-
wards received the draft from the witness, and gave the receipt at the
bottom of the bill. It does not appear that West disclosed to the plain-
tiff the fact that the goods were purchased for the defendant. The bill
of goods delivered to him was headed Mr. H. F. West, agent, and the
draft which he gave was also signed by him as agent. These are the
only circumstances showing the mutual understanding of the parties
that West was acting as agent and not as principal in the transaction.
It was shown that payment of the bill had been regularly demanded of
the drawee, and notice of its dishonor regularly given to West, the
drawer. This would entitle the plaintiff to resort to the common count
as against West, if he were the defendant, and it had been a transac-
tion unquestionabh' on his own account. Jones & Mann v. Savage,
6 Wend. 659, 662. The question then upon this branch of the case is,
whether the goods were sold to West exclusively upon his own individ-

^ The omitted passages deal with the topics treated in Chapter IV. sec. IIL

SECT. II.] LERNED V. JOHNS. 645

ual credit, and the credit of the bill which he drew, so as to prevent
the plainlitf" from all remedy against the defendant, for whom they were
in fact purchased, and who has had the exclusive benefit of thein. The
only additional evidence upon this point, not already adverted to, is the
letter written by the plaintiff to West on the 29 th September, 1826, ad-
vising him of the dishonor of the bill by the drawee, and requesting
him to make provision for its payment. I do not think that this is a
circumstance of much importance in the case. The communication
would of course be made to West, and he would be called on for pay-
ment, admitting that he was known and considered by the plaintiff as a
mere agent, as a matter of necessity ; and it does not appear that the
plaintiff knew who the principal was. It was a question for the jury
to decide whether the goods were sold exclusively upon the credit of
West and of the bill, or not, Bentle}' v. Grifiin, 5 Taunt. 356 ; 1 Com.
L. R. 131 ; Legget v. Reed, 1 Car. & Payne, 16 ; 11 Com. L. R. 301,
and cases stated in note ; and it is to be regretted that it was not dis-
tinctly left to them b}- the judge. Upon the evidence, I think the jury
would have been justified in finding for the plaintiff on this point. The
plaintiff certainly knew that West was acting as agent for some third
person. The bill of goods was made out to him as agent, and the draft
which he received was signed by West as agent. It would not be an
unreasonable conclusion from these facts, that the [jlaintiff did not
repose entireh' upon the security and responsibility of West, but had
regard to the eventual liability of the principal, whoever he might be,
if it should become uecessarj- to resort to him. If the plaintiff should
fail in this action on the ground that the credit was given exclusivel}'
to West, then no doubt he could recover in an action against West ;
and it is equally clear that whatever moncN' West may be compelled to
pay on this account, would be money paid to the use of the defendant,
and which he might recover from him. The defendant must eventually
pay for these goods, and I see no legal objection to a recoverj- against
him in this action upon the common counts.

Motion for new trial denied.

LERNED AXD ANOTHER V. JOHNS.

Supreme Judicial Court of Massachusetts. 1864.
[9 Allen, 419.]

Contract brought to recover damages for the failure to deliver a
quantity of coal, sold by the defendant to the plaintiffs. One ground
of defence was, that the contract was not binding because not executed
in conformity to the Statute of Frauds.

At the trial in the superior court, before Morton, J., the plaintiffs
introduced evidence tending to show that on the 4th of April, 1863, J.

646 LEKNED V. JOHNS. [CHAP. V.

W. Gregg, as agent of Wannemacher & Maxfield, and for and in behalf
of the defendant, made a parol contract to sell to the plaintift's from
two hundred and fift}' to three hundred tons of lump " Johns coal " at
five dollars per ton, according to the terms of the written memorandum
hereinafter referred to; and also the same quantity of broken " Johns
coal," on the same terms ; and that papers were accordingl}- executed
for the sale . . . signed, on the one part, by the plaintiffs, and, on the
other, by " Wannemacher & Maxfield, by J. W. Gregg." All of the
above papers were put in evidence by the plaintiffs, those signed by
them being produced by the defendant on notice. Wannemacher &
Maxfield and the defendant subsequently refused to deliver the coal to
the plaintiffs.

Upon the introduction of this evidence, the judge ruled that the
action could not be maintained ; and a verdict was accordingly taken
for the defendant. Tiie plaintiffs alleged exceptions.

G. A. Somerbi/, for the plaintiffs.

C. A. Welch, for the defendant.

Hoar, J.-^ Another point is taken by the defendant : that the signa-
ture " Wannemacher & Maxfield, per J. W. Gregg," is not a sufficient
signature to the memorandum to bind him, although it were proved b}-
parol that Wannemacher and Maxfield were his agents, duly authorized
to make the contract on his behalf, and that they actually' made it for
him through Gregg. There can of course be no controvers}' that the
name of Wannemacher & Maxfield is suflflcientl^' signed ; but it is
contended that it is not competent to show by parol that a party
whose name is signed as a principal is only the agent of a third
person, when there is no intimation in the memorandum that he acted
as agent. The doctrine is well settled in England that, when a written
contract not under seal is made bj- or with an agent, the principal,
although undisclosed, may sue or be sued upon it, except in the case
of commercial paper. Kenworthy v. Schofield, 2 B. & C. 945. It is
full}' and strongl}' stated in Higgius v. Senior, 8 M. & W. 834, and is
affirmed in many other cases cited by Mr. Justice Dewe}' in Eastern
Railroad v. Benedict, 5 Gra}', 561 ; and it is adopted b}- the most
approved writers on the law of agency. To what extent it is the law
of this Commonwealth it was not necessary fully to determine in the case
last cited ; though it is there said to be well settled that the rule applies
to cases of sales by written bills, or other memoranda made b}' the
agent, using his own name, and disclosing no principal.

There are certainly dicta to the contrary in Stackpole v. Arnold, 11
Mass. 27. And in Shaw v. Finney, 13 Met. 453, where the question
was on the suflficiency of the signature to a memorandum to bind the
defendant under the Statute of Frauds, and the sale was stated in the
memorandum as made by one Plathavva}', who was proved to have been
the plaintiffs agent, Mr. Justice Wilde observed that " if the defendant

1 From the statement and the opinion are omitted passages not pertaining to
Agency. — Ed.

SECT. II.] UOKCIIEKLING V. KATZ. 647

bad hiiuself signed the first memorandum, be would not have been liable
in this action by the plaintitl's ; lor the contract was in terms a contract
with Hathaway."

But in most of our own recent cases the English rule has been fully
sustained; and we find no adjudged case to tlie contrary. In Hunt-
ington V. Knox, 7 Cush. 371, the case of Higgins /'. Senior is cited
with entire approbation b}- Chief Justice Shaw ; and the doctrine held
to be equall}' applicable to agreements which are, or are not, required
to be in writing by the Statute of Frauds. And in Williams v. Bacon,
2 Gray, 387, the precise question now under consideration seems to
have been decided, and the case is a direct authority in point. See
also the statement of Mr. Justice Metcalf, in Fuller /•. Hooper, 3 Gray,
341 ; and Dykers v. Townsend, 24 N. Y. 57.

Excejotions sustained.^

BORCHERLING v. BERNARD KATZ and PHILIP KATZ.
CouKT OF Chancery of New Jersey. 1883.

[37 N.J. Eq. 150.]

On final hearing on bill and answer and proofs taken in open court.

Mr. Thomas JV. 3fcCartei\ for complainant.

Mr. Charles F. Hill and Mr. Socrates Tuttle, for defendants.

Van Fleet, V. C. This is a novel case. The complainant seeks to
hold the defendants for the rent reserved by a lease made bv him to
other persons than the defendants. The special ground on which he

1 In Beckham v. Drake, 9 M. & W. 79, 95-96 (1841), where it was held that an
action was maintainable against three partners, one of them dormant, upon a written
contract executed in the names of two, in the course of the partnership business,
Parke, B., commenting on Beckham v. Knight, 5 Scott, 619 (1838), s. c. 4 Bing. N. C.
243, said : " There has been a mistake in applying to contracts which are, in point of
law, parol, although reduced to writing, the doctrine which is applicable exclusively to
deeds, — regularly framed instruments between certain parties. Those parties only
can sue or be sued upon an indenture, who are named or described in it as parties ;
but this doctrine is applicable to deeds only, and I was not aware of any opinion being
entertained, before this case occurred, that the same rule extended to all written con-
tracts. With regard to the practice on this subject, it must be familiar to every one
that there are innumeralde mercantile contracts in Avriting, where the real principal,
when disclosed, is made liable, though the contract is entered into by another. . . .
The doctrine rests upon this princij)le, that the act of the agent was the act of the
princii)al, and the subscription of the agent was the subscription of the principal ; and
1 am not aware of the existence of any cases in which a distinction has been suggested
between a contract which has l)een entered into hy one individual for another, or by
two individuals for themselves and another, as to the liability of the principal to be
sued. The case of bills of exchange is an exception, which stands upon the law
merchant ; and promissory notes anotlier, for they are placed on the same footing
by the statute of Anne. In neither of these can any but the parties named in the
instrument, by their name or firm, be made liable to an action upon it." — Ed.

648 BORCIIERLING V. KATZ. [cilAi'. V.

seeks to do this is, that the defendants were the real lessees, that,
though the demise was made to other persons, they acted simply as
the agents of the defendants, who were the principals in the affair and
entitled to the benefit of the demise. The legal principle on which he
rests his right to relief, is that which entitles a vendor who, having
made a sale to a person whom he believed at the time to be the princi-
pal in the transaction, is afterwards discovered to have been the agent
of a third person, to recover the price of the goods of the principal,
though he has in the mean time debited the agent.

The following summary presents all the important facts : On the 22d
of October, 1877, the complainant made a lease, under seal, to Rudolph
Heller and William Katz, partners, doing business under the name of
Heller & Katz, demising certain premises, situate on Mulberry Street,
in the city of Newark, for a term of two 3-ears and five months from
the 1st da}' of November, 1877, at an annual rent of $840, payable
monthl}- in advance. The lease was executed by both parties. It
gave the lessor the right to re-enter for the breach of any covenant on
the part of the lessees. The lessees covenanted not to underlet, nor to
assign the lease, or any part of their term, without the written consent
of the lessor. On the 31st daj- of October, 1877, the defendants,
Bernard Katz and Philip Katz, constituted and appointed Heller &
Katz their attorneys, empowering them to carrj" on and conduct the
business then owned b}- the defendants in the city of Newark, and to
do and perform all and ever}' act and thing whatsoever requisite and
necessar}' to be done in carrjing on the business. Heller & Katz took
possession of the demised premises soon after the commencement of
the term, and continued to occupj' them, jointly, until December, 1878,
when Heller left. Afterwards Katz continued to occupy them alone
until April 1st, 1879, when he left. At the time the premises were
abandoned there was $220 rent in arrear, which the complainant
attempted to collect by distress, but the defendants claimed the
property seized, and the complainant surrendered it. This claim by
the defendants was, in part at least, false. They now admit that most
of the chattels seized belonged to Heller & Katz. The complainant
subsequentl}' brought an action at law against the lessees for the rent
in arrear, but, on discovering the power of attorne}', proceeded no
further. He did not know of the existence of the power of attorney
until Ma}', 1879, some time after he had commenced his action at law.
For the purpose of putting the case in the most favorable form for the
complainant, I shall assume that the business carried on on the demised
premises was the business of the defendants, and that Heller & Katz
were the agents of the defendants when the lease was executed,
although the weight of the evidence shows both facts to have been
otherwise.

Some of the complainant's legal propositions are so firmly established
as to be beyond dispute. There can be no doubt that a principal is
bound by the acts of his agent within the authority expressly given to

SECT. II.] BOliCHEKLING V. KATZ. 649

the agent, and also for such acts as are necessary and requisite to be
done in order that tlie agent nia^' accomplish the object of his appoint-
ment. It is also true, as a general rule, that where a contract is made
by an agent, without disclosing his principal, and the other contracting
party afterwards discovers that the person with whom lie dealt was not
tlie principal, but that a third person stood beliind liim as the real party
in interest, he may abandon his right to loolv to the agent personally,
and resort to the principal. And this he may do even when the con-
tract is in writing, and is sucli as is required b}- the Statute of Frauds to
be in writing, for, in such case, parol evidence, showing that an addi-
tional part}' is liable, in no way contradicts the written instrument.
"It does not den^' that it is binding on those whom, on its face, it
purports to bind, but shows that it also binds another, by reason that
the act of the agent, in signing the agreement, in pursuance of his
autlioiity, is, in law, the act of liis principal." Iliggius c. Senior, 8
M. & W. 834, 844. Parol evidence is admissible in such cases to
charge the principal, but not to discharge the agent. 2 Smith's Lead.
Cas. 226. But where an agent makes a lease in his own name, and
executes it in his own name, though the rent is reserved to his princi-
pal, and all the covenants purport to be made with his principal, the
principal cannot maintain an action oa^it, for the reason that on a deed
i)iter partes no person can maintain an action except a party to it.
Berkeley v. Hardy, 5 B. & C. 355 ; Sheldon v. Dunlap, 1 Harr. 245.

The complainant puts his right to relief against the defendants, on
these legal rules. He justifies his resort to this court in this wise : He
insists that b}' force of tlie legal rules just stated, his right to hold the
defendants for the rent is clear, but that he cannot maintain an action
at law against them because they are not parties to the lease. He says
he cannot maintain an action for use and occupation, for the statute
declares that such action can only be maintained where the agreement
for the occupation of the land is not b}' deed (Rev. p. 570, § 3) ; he
claims, therefore, that his case falls within the principle of equity
jurisprudence which declares that where there is a right there ought to
be a remedy, and, if the law gives none, it ought to be administered in
equity. This conclusion, I think, may be admitted to be sound, pro-
vided it is found that the defendants are subject to the legal principle
on which the complainant mainly rests his right to relief. This, in my
judgment, is the test question of the case.

Neither the researches of counsel, nor my own, have resulted in the
discovery of a precedent for tins action. I think it ma\' safely be said
that no instance exists in which some other person than the lessee
named in a lease, under seal, has been held liable in equity for the rent
reserved by the lease, on the ground that he was the undisclosed prin-
cipal in the transaction, and liable, as such, by force of the rule which
renders an unnamed and unknown vendee liable for the price of goods
purchased b}' him through his agent. The onh- case to which mj'
attention has been directed, wliich can be regarded as authority for

650 BORCHERLING V. KATZ. [CHAP. V.

the complainant's position, is Clavering v. Westle}', 3 P. Wms. 402.
There tlie plaintiff made a lease of a coal mine to A. for twenty-one
years. A. tiien declared a trust of the lease for five persons. These
five persons entered into possession, worked the mine, and took its
products, but some time after, the lessee becoming insolvent, and the
mine unprofitable, the}' abandoned it. The lessor then brought his bill
against the lessee and cestuis que trust to compel them to pay the rent
in arrear, and also the accruing rent, insisting that though the lease
was made to A., yet it being declared b}' him to be in trust for the five
persons, as tenants in common, it was the same thing as if it had been
made to them originallj*. The Master of the Rolls (Sir Joseph Jekyll)
held that the cestuis que trust were not liable, and dismissed the bill.
His reason was this : That inasmuch as the plaintiff had chosen to let
the mine to A. alone, and to accept his covenant for the rent, he should
be restricted to the securit}- he had voluntarily' accepted. Having
accepted the covenant of the lessee, his remedies were limited to that.
Lord Talbot, on appeal, reversed this decree, and decreed that the
lessee was priraaril}' liable, but in case the rent could not be collected
of him, then that each of the five cestuis que trust should pay one-fifth
of the rent in arrear, and also that which should afterwards accrue.
The report of this case, on appeal, is extremel}^ meagre and unsatisfac-
tor}'. The conclusion of the Lord Chancellor is simply given, without
more. No reasons are given, and we have not even a hint of the legal
rule which it was supposed the judgment of the Master of the Rolls had
overlooked or disregarded.

But this case has since been overruled. It is no longer an authorit}'
in the court which decided it ; on the contrary', its doctrine has been
repudiated. Lord Cranworth, in Walters v. Northern Coal Mining
Co., 5 De G. M. & G. 629, after expressing regret that the grounds of
Lord Talbot's decision are not given, says : " If he is to be taken as
laying down a general proposition that whenever a legal lessee is
trustee for another, the rent becomes an equitable debt from the cestui
que trust, to be recovered by bill in this court, I must, with all respect,
say that is a proposition to which I cannot assent. I rest mj- judg-
ment on the ground that no such general principle exists." Lord
Cranworth's discussion of the question on which the decision here
must turn, is so exhaustive and unanswerable that this case may be
decided b^- a single quotation from his opinion. He says: "The
riglits of a landlord against those who occupy his land are legal rights,
well defined and understood. Where a tenant is holding under a
demise at a stipulated rent, the landlord has his remedy by distress or
action of debt. If the lessee assigns to another, the landlord has
against the assignee, so long as he remains in possession, the same
rights which he had against the original tenant. If instead of assign-
ing his interest, the lessee creates a tenanc}' under himself, then the
original landlord may either distrain on the under-tenant, or may bring
his action of debt or covenant, as the case may be, against the original

aLCT. 11. J BOKCllEKLING V. KATZ, 651

lessees. . . . The object of the present bill is to give to the landlord
an additional remedy in case the legal lessee is a mere trustee for
others, who have in fact occupied the lands, to enable the landlord, in
such a case, to treat the cestui^ que trust as equitable debtors for the
amount of the rent. But I can discover no principle to warrant such a
proposition. The relation between the owner of the land and those
who occup}- it is of a purely legal character. The circumstance that
there is a relation of an equitable character subsisting between the
lessee and the actual occupier cannot give any equitable rights to one
who claims b}' a title paramount both to the trustee and the cestui que
trust. Whatever be the relation between the lessee and the occupier,
the landlord's rights are unatTected. lie has his legal remedy by dis-
tress, or he may bring his action against the lessee." The same doc-
trine, substantially, was enforced by Lord Justices Knight Bruce and
Turner in Cox v. Bishop, 8 De G. M. & G. 815. An attempt was
made there to hold the equitable assignee of a lease for the rent which
accrued during the time he was in the actual possession and enjoyment
of the demised premises. Lord Justice Knight Bruce said: "They
[possession and enjoyment] do not, in my judgment, create a contract
between the lessor and the equitable assignee which can give the
former a title to the relief prayed against the latter. The possession
by itself would not, nor would the equitable assignment by itself, have
given the lessor the equitable right which he is here asserting against
the assignee ; neither, I think, can the union of the two."

It is quite impossible to distinguish these cases from the one under
consideration. The}' are, in all material and essential points, identical,
and must all be governed by the same general rules of justice. The
fact that the complainant has chosen to describe the relation existing
between the defendants and the lessees in this case, as principal and
agent, and that in the cases just referred to the relation which existed
between the lessees and the persons sought to be charged with the rent
was spoken of as trustee and cestuis que trust, is without the least
significance in legal estimation. The difference is in terms or names,
and not in the legal character of the relation. The relation, in prin-
ciple and substance, is the same, whether it is described bj- one set of
terms or the other, and its rights and obligations are the same, whether
called b}' one name or the other. In ever}' instance in which an agent
takes title in his own name to property purchased for his principal, he
makes himself, in equity, the trustee of his principal. And if, in the
transaction under consideration. Heller & Katz were the agents of
the defendants, then in taking the lease in their own names the}' made
themselves the trustees of the defendants, and the more accurate
description of the relation of the parties, in that case, would be trustee
and cestui que trust, rather than principal and agent.

The precedents are against the complainant. I think reason is also
against him. No reason of justice or policy can be suggested why
landlords should have the additional remedy sought in this case. A

652 KAYTON V. BARNETT. [CHAP. V.

creditor of that kind is already highly favored by the law. He may
distraia either against the tenant or the under-tenant ; if the person
in possession fails or refuses to pay the rent in arrear, the landlord
may dispossess him, and thus recover the possession of the premises,
and in addition, he may use the onl}- means within the reach of ordinary-
creditors, — bring his action at law. If with these ample remedies at his
command he fails to secure the. payment of his rent, it may be safely
concluded it is not for the want of adequate remedies.

The complainant's hill must be dismissed., loitlt, costs.

KAYTON ET AL., Appellants, v. BARNETT et al., Respondents.

Court of Appeals of New York. 1889.

[116 y. Y. 625]

Appeal from judgment of the General Term of the Superior Court of
the City of New York, entered upon an order made December 2, 1886,
which denied a motion for a new trial, and directed judgment in favor
of defendants, entered upon an order nonsuiting plaintiffs on trial. ^

This action was brought to recover a balance of the purchase-price
alleged to be due for certain propert}' sold by plaintiffs to defendants.

On the 17th day of March, 1881, the plaintiffs sold and delivered to
William B. Bishop several machines, and assigned to him certain letters-
patent for the agreed price of $4,500. Bishop paid $3,000 on deliver}-,
and gave three notes, dated March 24, 1881, for $500 each, one due

1 The opinion of the General Term is thus reported in 22 Jones & Spencer, 78 : —

" Truax, J. The action was brought to recover from the defendants as undisclosed
principals. The evidence shows that the plaintiffs asked Bishop, the person who, as a
matter of fact, bought the goods, if he was buying for the defendants, and stated to
him that if he was buying for tlie defendants plaintiffs would not sell the goods to
them. Bishop said that he was not buying for the defendants, but that he was buying
for himself.

" It was testified on the trial, and for the purpo.ses of this appeal it must be taken as
the fact, that Bishop was buying the goods for the defendants.

" Where an agent acts for an undisclosed principal, the third party on discovering
the principal may sue him and recover (Meeker v. Claghorn, 44 N. Y. 351), provided
that in the mean time the principal has not in good faith paid the agent (Armstrong v.
Stokes, L. R. 7Q. B. 253 ; Rowan v. Buttman, 1 Daly, 412), and provided that the
credit has not been given to the agent as agent. Meeker v. Claghorn, supra ; Coleman
V. First Nat. Bank of Elmira, 53 X. Y. 388.

" In each of these cases there must be an agency which was unknown to the plaiutifL
But in the case before the court the plaintiffs refused to contract with the defendants.
There was no reciprocity of action between the plaintiffs and the defendants ; if the
plaintiffs had refused to complete the contract the defendants could not have sued
them for damages. Humble v. Hunter, 12 Q. B. 311 ; Winchester v. Howard, 97 Mass.
303 ; Robson v. Drummond, 2 B. & Ad. 303.

" In this case the plaintiffs did not give credit to the agent as agent, because they
did not know that Bishop was acting as agent for the defendants." — Ed.

SECT. II.] KAYTON V. BARNETT. 653

nine months, one fifteen months, and one eighteen months after date,
without interest. June 29, 1883, Bishop died insolvent without having
paid the notes, or any part of them. The plaintiffs tendered the notes
to the defendants, and on August 22, 1883, brought this action to
recover the part of the purchase-price represented by the notes, on the
theory that Bishop, as agent for the defendants, bought the [jroperty
for them, without disclosing his principals until after the execution and
delivery of the notes. The defendants, in their answer, denied that
they purchased the property, and alleged that it was bought by William
B. Bishop for the price and on the terms stated in the complaint.

Further facts appear in the opinion.

W. J. Curtis, for appellants.

A. R. Dyett^ for respondents.

FoLLETT, C. J. When goods are sold on credit to a person whom
the vendor believes to be the purchaser, and be afterwards discovers
that the person credited bought as agent for another, the vendor has a
cause of action against the principal for the purchase-price. The defend-
ants concede the existence of this general rule, but assert that it is not
applicable to this case, because, while Bishop and the plaintiffs were
negotiating, they stated the}' would not sell the property to the defend-
ants, and Bishop assured them he was buying for himself and not for
them. It appears bj- evidence, which is wholly uncontradicted, that the
defendants directed ever}' step taken b}' Bishop in his negotiations
with plaintiffs ; that the propert}' was purchased for and delivered to
the defendants, who have ever since retained it; that they paid the
$3,000 towards the purchase-price, and agreed with Bishop, after the
notes had been delivered, to hold him harmless from them. Notwith-
standing the assertion of the plaintiffs that they would not sell to the
defendants, they, through the circumvention of Bishop and the defend-
ants, did sell the property to the defendants, who have had the benefit
of it, and have never paid the remainder of the purchase-price pursuant
to their agreement. Bishop was the defendants' agent. Bishop's mind
was, in this transaction, the defendants' mind, and so the minds of the
parties met, and the defendants having, through their own and their
agent's deception, acquired the plaintiff's property by purchase, cannot
successfully assert that the}' are not liable for the remainder of tlie pur-
chase-price because they, through their agent, succeeded in inducing the
plaintiffs to do that which they did not intend to do, and, perhaps,
would not have done had the defendants not dealt disingenuously.

The judgment should be reversed and a new trial ordered, with costs
to abide the event.

All concur, except Haight, J., not sitting.

Judgment reversed.

654 WATTEAU V. FENWICK. [CHAP. V.

WATTEAU V. FENWICK.
Queen's Bench Division. 1892.

[[1893] 1 Q. B. 346.]

Appeal from the decision of the county court judge of Middles-
borough.

From the evidence it appeared that one Humble bad carried on busi-
ness at a beerhouse called the Victoria Hotel, at Stockton-on-Tees,
which business he had transferred to the defendants, a firm of brewers,
some years before the present action. After the transfer of the busi-
ness, Humble remained as defendants' manager ; but the license was
always taken out in Humble's name, and his name was painted over the
door. Under the terms of the agreement made between Humble and
the defendants, the former had no authority to buy any goods for the
business except bottled ales and mineral waters ; all other goods
required were to be supplied b}' the defendants themselves. The
action was brought to recover the price of goods delivered at the
Victoria Hotel over some years, for which it was admitted that the
plaintiff gave credit to Humble onl}' : they consisted of cigars, bovril,
and other articles. The learned judge allowed the claim for the cigars
and bovril only, and gave judgment for the plaintiff for £22 12s. 6d.
The defendants appealed.

1892. Finlay, Q. C. {Scott Fox with him), for the defendants.
The decision of the county court judge was wrong. The liability of a
principal for the acts of his agent, done contrary to his secret instruc-
tions, depends upon his holding him out as his agent, — that is, upon
the agent being clothed with an apparent authority to act for his prin-
cipal. Where, therefore, a man carries on business in his own name
through a manager, he holds out his own credit, and would be liable for
goods supplied even where the manager exceeded his authority. But
where, as in the present case, there is no holding out by the principal,
but the business is carried on in the agent's name, and the goods are
supplied on his credit, a person wishing to go behind the agent and
make the principal liable must show an agency in fact.

[Lord Coleridge, C. J. Cannot j-ou, in such a case, sue the undis-
closed principal on discovering him ?]

Only where the act done by the agent is within the scope of his
agency ; not where there has been an excess of authority. Where any
one has been held out by the principal as his agent, there is a contract
with the principal by estoppel, however much the agent may have
exceeded his authority ; where there has been no holding out, proof
must be given of an agency in fact in order to make the principal
liable.

Boydell Houghton, for the plaintiff. The defendants are liable in

SKCT. II.] WATTE AU V. FEN WICK. 655

the present action. They are in fact undisclosed principals, who instead
of canying on the business in their own names employed a manager to
carry it on for them, and clothed him with authority to do what was
necessary to carr^' on the business. The case depends upon the same
principles as Edmunds v. Bushell, L. R. 1 Q. B. 97, where the manager
of a business which was carried on in his own name with the addition
" and Co.," accepted a bill of exchange, notwithstanding a stipulation
in tlie agreement witli his principal that he should not accept bills ; and
the Court held that the principal vvas liable to an indorsee who took the
bill without an}" knowledge of the relations between the principal and
agent. In that case there was no holding out of the manager as an
agent ; it was the simple case of an agent being allowed to act as the
ostensible principal without any disclosure to the world of there being
any one behind him. Here the defendants have so conducted them-
selves as to enable their agent to hold himself out to the world as the
proprietor of their business, and tlie}' are clearly undisclosed principals.
Raniazotti v. Bowring, 7 C. B. (X. 8.) 851. All that the plaintiff has
to do, therefore, in order to charge the principals, is to show that the
goods supplied were such as were ordinarilv used in the business, —
that is to sa}', that they were within the reasonable scope of the agent's
authority.

[He also cited Yorkshire Banking Co. v. Beatson, 4 C. P. D. 204 ;
5 C. P. D. 109.]

Finlaij^ Q. C, in reply, cited Summers y. Solomon, 7 E. «& B. 879.

Cur. adv. vult.

Dec. 12. Lord Coleridge, C. J. The judgment which I am about
to read has been written by my brother Wills, and I entirely concur
in it.

Wills, J. The plaintiff sues the defendants for the price of cigars
supplied to the Victoria Hotel, Stockton -upon-Tees. The house was
kept, not by the defendants, but b}- a person named Humble, whose
name was over the door. The plaintiff gave credit to Humble, and to
him alone, and had never heard of the defendants. The business,
however, was reall}' the defendants', and the}- had put Humble into it
to manage it for them, and had forbidden him to buy cigars on credit.
The cigars, however, were such as would usually be supplied to and
dealt in at such an establishment. The learned count}- court judge
held that the defendants were liable. I am of opinion that he was
right.

There seems to be less of direct authority on the subject than one
would expect. But I think that the Lord Chief Justice, during the
argument laid down the correct principle, viz., once it is established
tliat the defendant was the real principal, the ordinary doctrine as to
principal and agent applies, — that the principal is liable for all the acts
of the agent which are within the authority usually confided to an
agent of that character, notwithstanding limitations, as between the

656 ISHAM V. BURGETT. [CHAP. V.

principal and the agent, put upon that authority. It is said that it is
only so where there has been a hokling out of authority, — which
cannot be said of a case where the person supplying the goods knew
nothing of the existence of a principal. lUit I do not think so.
Otherwise, in every case of undisclosed principal, or at least in every
case where the fact of there being a principal was undisclosed, the
secret limitation of authority would prevail antl defeat the action of the
person dealing with the agent, and then discovering that he was an
agent and had a principal.

But in the case of a dormant partnei- it is clear law that no limitation
of authority as between the dormant and active partner will avail the
dormant partner as to things within the ordinary authority of a partner.
The law of partnership is, on such a question, nothing but a branch of
the general law of principal and agent, and it appears to me to be
undisputed and conclusive on the point now under discussion.

The principle laid down by the Lord Chief Justice, and acted upon
by the learned county court judge, appears to be identical with that
enunciated in the judgments of Cockburn, C. J., and Mellor, J., in
Edmunds v. Bushell, L. R. 1 Q. B. 97, the circumstances of which
case, though not identical with those of the present, come very near to
them. There was no holding out, as the plaintiff knew nothing of the
defendant. I appreciate the distinction drawn bj- Mr. Finlay in his
argument, but the principle laid down in the judgments referred to, if
correct, abundantly covers the present case. I cannot find that any
doubt has ever been expressed that it is correct, and I think it is right,
and that verj- mischievous consequences would often result if that i^rin-
ciple wei'e not upheld.

In my opinion this appeal ought to be dismissed with costs.

Appeal dismissed.^

ISHAM AND ANOTHER V. BURGETT.
Supreme Judicial Court of Massachusetts. 1893.

[157 Mass. 546.)

Holmes, J. This is an action for the price of poles sold for the use
of an electric light company. The defendant contended that the com-
pany alone was liable, and asked a ruling to that effect. The judge
before whom the case was tried found as a fact that the contract was
made by the defendant, and the only question is whether there was any
evidence warranting the finding. The testimon}' was, that the defend-
ant gave a written order, and orall}- instructed the plaintiffs to charge

1 Ace. : Hubbard v. Tenbrook, 124 Pa. 291 (1889).
See Hatch v. Taylor, ante, p. 291. — Ed.

SECT. II.] ISHAM V. BURGETT, 657

the goods to the company. The order, when produced, appeared to be
signed by the defeiKhuit in such a way as to ciiarge him on its face.
Brown v. Bradlee, 156 Mass. 28 ; Huntington v. Knox, 7 Cush. 371, 374.
It appeared that the compaiiy was incorporated when the order was
given, but that no capital had been paid in. The defendant and one
Turner built tlie wliole electric line with their own funds, keeping the
account in which the plaintiffs' debt appeared among others in their
own books, and afterwards received substantially all the stock of the
compan}' in payment for it. Whether or not the form of the order was
enough, without more, to warrant the finding, supposing the company
to have been the principal, in view of the charge to the company upon
the plaintiffs' books (Raymond v. Crown & Eagle Mills, 2 Met. 319, 324 ;
James v. Spaulding, 4 Gray, 451 ; Lee v. Wheeler, 11 Gray, 236, and
Banfield v. Whipple, 10 Allen, 27, 31), the judge was warranted in
finding that the real principal, as well as the mouthpiece of the transac-
tion, was the defendant, so that, although he used the name of his
creature, the corporation, in such a way as to bind it to the plaintiffs at
their election, still, when they discovered the facts, they had the right
also to go against him. The judge may have found that the plaintiffs
did not discover the facts until the trial ; that until then they supposed
that the corporation was the true purchaser, and sought to charge the
defendant with the contract on a different ground. If the defendant
saw fit to use the name of the corporation on his own behalf, as repre-
senting himself when engaged in a particular business, he cannot com-
plain of being held if the fact happens to be discovered. Sloan v.
Merrill, 135 Mass. 17, 19. Exceptions overruled.'^

C R. Darling^ for the defendant.

D. A. Dorr^ for the plaintiffs.

^ The order above referred to was as follows : —

"Boston, Aug. 23, \i

" D. B. Isham & Son, Boston, Mass. :

" Gentlemen, — Please furnish poles as follows : F. 0. B., Dover, N. H.

100 poles, .30 feet long, 6 inches at top.

115 " 35 " " 7 "

10 " 40 " " 7 "

These must be straight and well trimmed, and first-class in every respect.

" H. W. BURGETT.

" Mark. The Dover Electric Light Company.
" Prices as follows : —

30 — 6 inches. $2.50.
35 — 7 " 3.50.

40—7 " 4.50.

" F. 0. B., Dover, N. H." — RBp.

Compare Heffron v. Pollard, 73 Tex. 96 (1889).

And see Spurr v. Cass, L. R. 5 Q. B. 656 (1870). — Ed.

658 SIMON V. MOTIVOS. [CHAP. V.

SECTION III.

Whether the Third Party can hold the Agent,

SIMON V. MOTIVOS.

King's Bench. 1766.

[3 Burr. 1921.]

This action was brought against the defendant, who had bought
goods at an auction, which were not talien away according to the con-
ditions of sale, but put up again and resold.

There was a verdict for the plaintiff ; and the defendant moved for a
new trial.

The defendant was a broker ; and bid for one Durant ; but did not
name his principal, till some days after.

The auctioneer, when he knocked down the lots to the highest bidder,
put down his name, in the usual manner, as the purchaser of those
goods. The defendant came, the next da}', and saw the goods
weighed.

The objection now made was, " That this contract, not being in
writing, was void b}' the Statute of Frauds."

But the Court were all clearly of opinion, that the auctioneer must
be considered as agent for the buyer (after knocking down the hammer)
as well as for the seller ; and that his setting down in writing the
name of the buyer, the price, etc., was sufficient to take it out of
the statute ; and that the buyer's coming the next day, and seeing
the goods weighed, was an additional circumstance that deserved
attention. And they inclined to think "That buying and selling at
auctions was not within the Statute of Frauds."

Upon the whole (though no earnest was actually paid), they dis-
charged the rule which had been made upon the plaintiff, for him to
show cause why the verdict which he had obtained against the buyer
should not be set aside, and why there should not be a new trial.^

1 Arc: McComb v. Wright, 4 Johns. Ch. 659 (1820) ; Royce v. Allen, 28 Vt. 234
(1856); McClellan v. Parker, 27 Mo. 162 (1858) ; Pierce v. Johnson, 34 Conn. 274
(1867).

It is settled that sales at auction are within the Statute of Frauds. Kenworthy v.
Schofield, 2 B. & C. 945 (1824). — Ed.

SECT. III.] DAVENPORT V. RILEY. 659

S. DAVENPORT & CO. v. RILEY AND O'HEAR.

Constitutional Court of South Carolina. 1822.

[2 McCord, 198.]

In the City Court, April Term, 1822. Process to recover $57, the
difference between the vaUie of sound and damaged cotton.

The report of the Recorder : —

" The fact of the damage and the quantum of the injur}' were clearly
proved. It was further shown by a witness for the plaintiffs, that the
cotton was purchased from the defendants, who were well known to be
factors in Charleston; that when the defendants were informed by the
witness that the cotton was damaged, the}' said that it belonged to a
planter, and not to them, they having sold it as factors. The sales
were made out in the manner which is customary with factors, and the
bags were stated in the bill to be marked L ; previously to bringing the
suit, the attorney of the plaintiffs wrote a letter to the defendants, who,
in their answer to it, replied that the cotton was the property of a Mr.
Lapeine, in King Street, and that the}' had disposed of it as factors.
The plaintiffs' counsel insisted that, as the defendants had sold without
disclosing the name of their principal, they were personally responsible.
The defendants contended that, the sale having been made by them in
their character of factors, the principal was exclusively liable. I de-
creed for the defendants, upon the ground that it was manifest that the
sale had been made by them as factors, consequently that they could
not be rendered individually liable unless they had entered into some
special assumpsit or undertaking. Notice was served upon me that a
new trial would be moved for upon the grounds which are enclosed.

" Wm. Draytox, Jiecorder."

Richardson, J., delivered the opinion of the Court : —
In the case of Rabone v. Williams, 7 T. R. 356, Lord Mansfield
says: "Where a factor dealing for a pi'incipal, but concealing that
principal, delivers goods in his own name, the person contracting with
him has a right to consider liira, to all intents and purposes, as the
principal ; and though the real principal ma}' bring an action, yet the
purchaser may set off any claim he may have against the factor." This
has been long settled. In the case of Mauri r. Hefferman, 13 Johns.
58, it is decided that to excuse an agent he should have communicated
his agency. See also 2 Str. 1182 and 2 Camp. 24 and 341, where the
same rule is fully recognized. Without such a rule, the opportunity of
committing frauds would be infinite, and the greatest caution in con-
tracts utterly vain. For instance, a country trader, who had purchased
goods of a respectable and res|)onsible merchant, upon discovering that
they were unsound, might be tiu-ned over for his remedy to an unknown
foreigner. A citizen who purchased a horse in the same situation

660 CHASE V. DEBOLT. [CHAP. V.

might be sent to Kentucky for the restoration of his mone}', though he
had contracted with a livery* stable keeper resident here. A foreign
trader who has purchased our produce, upon the character of an estab-
lished factor or other vendor of known responsibility, might be referred
to an insolvent debtor.

It cannot be doubted that strangers coming to purchase of us will
not only deal more readil}', but even give higher prices to known fac-
tors, because of their responsibilit}-. And such a reliance is a part of
Ihe contract not to be trifled with. The rule, then, that every man is
liable upon his own contracts unless he lets the opposite party know
ihat he is a mere agent for another, must be preserved. Men depend
«pon those with whom the contract is made ; and are not to be sup-
j)Osed as confiding in mere strangers. To say that the authority of a
factor's employment is of itself notice to a purchaser, would be too
iftnsafe. Factors of ever}- description often sell for themselves. With
♦)ur factors, selling rice or cotton, it is often that they are the planters,
*jnd nia}' be speculators in the produce too.

The motion therefore is granted.

Dunkht & (Jamphell^ for the motion.

Mamiltoii & Petigru, contra.

HENRY J. CHASE, Appellant, v. DEBOLT, Appellee.
Supreme Court of Illinois. 1845.

[7 ///. 371.]

This was a suit originalh- brought before a justice of the peace of
Peoria County, by the appellee against the appellant, when judgment
was rendered for the plaintiff below, for $75.93|.

The case was appealed to the Circuit Court, and heard before the
Hon. John D. Caton and a jury, at the October term 1845. Verdict
and judgment for the plaintiff, for the amount recovered before the
justice.

A summary of the evidence will be found in the opinion of the
Court.

E. JV. Powell and W. F. Bryan, for the appellant.

A. Lincoln and H. 0. Merriman, for the appellee.

ScATES, J.^ Debolt sued Chase before a justice of the peace for
$75.93f on an account for work and labor done upon Jubilee Col-
lege.'* . . .

1 Wilson-, C. J., and Lockwood, J., did not sit in this case. — Rep.

2 The omitted passages hold that there was no error in admitting certain evidence
to which objection had been made as hearsay. — Ed.

SfiCT. III.] CHASE V. DEBOLT. 661

The refusal of the Court to grant a new trial is also assigned for
error. All the evidence is set out in the bill of exceptions. The
plaintiffs whole bill of items amounted to $75.y3|, which was all
allowed by the jury. From the evidence, it appears that Chase was
the agent of Bishop Chase in hiring labor and superintending the work
on Jubilee College. Debolt asked Bennett, a clerk in the store at
Jubilee, if he could get work on the college. Bennett answered that
he supposed he could, but that Henry J. Chase was the agent who
employed all hands. lie went to Chase, who employed him, but he
did not tell him that he was agent for the bishop. Debolt frequentl}^
received pay from the bishop. The account of labor was always re-
turned to Bennett to the store, and he gave orders upon the bishop for
the pay ; when he had not the change, he would send to the store, and
Bennett would pay. One order for eight dollars given Debolt on the
bishop for work, had been returned receipted by Debolt ; and also
another receipt had been given by Debolt for one dollar received of
Bishop Chase. Witness supposed that when Debolt was receiving pay
for his labor, he knew he was receiving it of Bishop Chase. He fur-
ther testified that Henry J. Chase had had no work done for him bj-
Debolt.

Daniel Blucher, another witness, testified that he had worked on
Jubilee College ; that Debolt commenced in the fall and worked until
spring, during the time witness worked ; that witness had been em-
ployed by H. J. Chase ; that he knew he was working for the bishop,
and Debolt also knew that he was working for Bishop Chase; that
witness had always received his pa}' from the bishop, and never from
H. J. Chase, although he had worked some days on the College farm.

The admissions of the plaintiflT, Chase, proven by the justice, were,
that he had employed the defendant, Debolt, to work on the college,
as the agent of Bishop Chase, but did not inform defendant at the
time that he was only an agent, but the work was done for the bishop ;
that defendant never worked for him, and he owed him nothing, and
that defendant had received from the bishop the greater portion of his
pay. The Court never interferes with verdicts upon facts, for any
slight preponderance of testimony. But where there is a strong pre-
ponderance of testimony it will set verdicts aside, especially where
apparent injustice has been done.

Agents may become liable for contracts made for their principals,
where they conceal or do not disclose their character of agent, and it
is unknown to the i^arty with whom they contract, and they may also
by the nature and character of the contract entered into. But it is
quite immaterial whether the agent disclose his character or his princi-
pal, himself, if it be actually known at the time to the other part}-. In
such case the agent will not be bound, unless he enter into such a con-
tract as will bind him at all events.

In this case, we cannot doubt that Debolt knew at the time he was
employed, that plaintiff was merely an agent, for he had before been

662 PIKE V. ONGLEY. [CHAP. V.

SO informed by Bennett, and he afterwards took orders to, and re-
ceived payment of the bishop. The fact of plaintiff's agency was
known to a co-laborer, and from these circumstances, the preponder-
ance of testimony to establish these facts is clear, strong, and irresist-
ible upon the record. And establishing this fact discharges the plain-
tiff from all liability, as there is nothing in the nature of this simple
hiring to charge liiin. In another particular the verdict is manifestly
against the weight of evidence. The jury have allowed the plaintiffs
whole account, although two receipts were in evidence, showing that
he had been paid nine dollars.

Upon the facts in the record, we feel compelled to reverse the judg-
ment and award a new trial. Judgment reversed with costs, and cause
remanded with directions to award a venire de novo.

Judgment reversed.'^

PIKE, SONS, & CO. V. ONGLEY AND THORNTON.

Queen's Bench Division and Court of Appeal. 1887.
[18 Q. B. I). 708.]

Motion for a new trial or to enter judgment for the defendants on
the ground of misdirection and misreception of evidence.

The action was brought against the defendants, who were hop
brokers, to recover damages for the non-delivery of hops equal to
sample sold under a written contract in the following terms : " Sold
by Ongley & Thornton to Messrs. Pike, Sons, & Co., for and on
account of owner, 100 bales, Hallertau Bavarian hops, at 52.';. per cwt.
Delivery in October. (Signed) for Ongley & Thornton, S. T." At
the trial before Manisty, J. and a special jury, the plaintiffs contended
that the defendants were personally liable on the contract, and evi-
dence was tendered to show that, by the custom of the hop trade in
such a contract, if the principal be not disclosed at the time of making
the contract, the broker is in fact regarded as the principal and is held
liable. The evidence was admitted by the learned judge. It was ad-
mitted by the parties that the plaintiffs had not asked the defendants
for the name of their principal, but there was evidence to show that
the plaintiffs in fact knew that he was a foreigner. The jury found
a verdict for the plaintiffs, and judgment was entered in accordance with
the finding.

Winch ^ for the defendants.

Murphy, Q. C, and Pyhe for the plaintiffs.

Day, J. The document upon which this action was brought is
a sale note of the defendants, who purported to sell thereby certain

I Ace: Boston & Maine Railroad v. Whitcher, 1 Allen, 497 (1861); "Warren ».
Dickson, 27 111. 115 (1862). — Ed. .

SECT. III.] PIKE V. ONGLEY. 663

hops to the plaintiffs " for and on account of the owner." The ques-
tion is whether that contract on the face of it makes the brokers liable
as principals, or whether, if that is not so, evidence can be given to
vary the contract by showing a trade custom to treat as principals
brokers who have not disclosed the names of their principals at the
time of the making of tlie contract. "It is clear from a series of
decisions that where the contract sued upon has been made b}' a broker
' for' or ' for and on account of an undisclosed or foreign principal,
the broker is not priuiuril}' liable." That is the result of the decision
in Gadd v. Houghton, I Ex. D. 357, where the Court of Appeal held
that where the words "on account of" were inserted in the body of
a contract, the broker was not personally liable. That case is binding
and conclusive, and we must hold that in the present case, where
goods have been sold " for and on account of" an owner (the owner
not having been named), the brokers are not primarily liable. That
is a convenient expression to use. But evidence was in this case
tendered to prove a trade custom, and such evidence is often admissi-
ble where it is not inconsistent with the contract. "The custom here
set up was that, if the broker did not disclose the name of his princi-
pal, he was himself personally liable." I asked whether the custom
was that "the principal should be disclosed at the time of the making
of the contract," and I gather from the judge's notes and from the
answers of counsel that " a primary liabilit}' would attach to the broker
as part of the contract," if that was not done. If that is so, the new
term contradicts the written document, which says that the defendants
do not contract for themselves, but for the owner of the hops, thus
excluding all idea of primary liability ; until it was shown that they
were the owners, they could not be taken to be so. Therefore I am
of opinion that the evidence of custom which was tendered was inad-
missible, and that the learned judge at the trial ought to have con-
strued the contract and directed a verdict for the defendants.^

Judgment reversed.

The plaintiffs appealed.

3Iurphy.i Q. C, and PyJce, for the plaintiffs.

Finlay^ Q. C. and Winc/i, for the defendants.

Lord EsHER, M. R. In this case the defendants are clearly not
liable upon the contract itself; they were selling as agents for an
owner, and in the absence of trade usage no liability would attach to
them. The evidence of tho witnesses who were called to prove the
custom came to this, that if the name of the owner \.^ac not given in,
or at the time of the making of, the contract, the buyer had the right
to treat the broker as principal ; and on such a custom I should say
that even if the owner's name were disclosed after the making of the
contract, the buyer might sue either the principal or the broker. Is it
the fair meaning of such evidence to say that where a broker sa^-s in

1 A concurring opinion by Wills, J., is not reprinted. — Ed.

664 JOSEPH V. KNOX. [chap. T.

the contract that he is acting for a principal, though an undisclosed
one, the buyer is to loolc onl}' to him and not to the real principal?
Such a custom would be in direct contradiction of the terms of the
written contract, but I can see no reason for supposing that a man
having a remedy against two persons would deliberately debar him-
self of his remedy against one of them. The custom is not wanted
in such a case : it is only wanted where there is a principal who could
be charged and the contract is made without disclosing his name.
The meaning of this custom is that where the principal's name is not
disclosed in or at the time the contract is made, the buyers reserve to
themselves the right of suing the broker or factor. I can well conceive
that in this trade, and in many others, such a custom is for the broker's
benefit, and I am clearly of opinion that the evidence was properly
admitted by the learned judge at the trial. If any remarks of mine
in the judgment in Hutchinson v. Tatham, L. R. 8 C. P. 482, are
in conflict with our present decision the}' must be considered as with-
drawn. The appeal must be allowed.

Fry, L. J. I am of the same opinion. If the objection were now
being taken for the first time to the admissibility of evidence of
a custom to charge the brokers as principals in the event of non-
disclosure by them of their principals at the time of the contract, I
should have paused before deciding in favor of its admissibility.
But that proposition is now clearly established ; and we have only
to consider whether by the custom of the trade the defendants were
liable from the beginning as principals, and whether such a custom
contradicts the written contract. I can entertain no doubt on either
point. By the terms of the document itself the owner is liable ; the
custom says the broker shall be liable also ; there is nothing in that
which is inconsistent with the contract, though it would be inconsistent
if the custom were to exclude the liability of the owner.

Appeal allowed}

SECTION IV.

Whether the Agent can hold the Third Party,

JOSEPH AND OTHERS V. KNOX.

Nisi Prius. 1813.

[3 Camp. 320.]

This was an action against the owner of a ship on a bill of lading
signed by the master, for not carrying goods from London to Surinam.

1 See Lyon v. Williams, 5 Gray, 5.57 (1856) ; Williamson r. Barton, ante, p. S35;
Fleet V. Murton, L. E. 7 Q. B. 126 (1871). — Ed.

SECT. lY.] JOSEPH V. KNOX. 665

The bill of lading stated that the goods were shipped by the plain-
tiffs ; that they were to be delivered in Surinam to Levy Davids or his
assigns •, and that the freight was paid in London.

The goods consisted chiefly of butter, which the plaintiffs had
received from Sussraan & Polack of Amsterdam, to be forwarded to
Levy Davids in Surinam, and which in an answer to a bill in equity
they swore they believed to be his property.

Topping^ for the defendant, insisted, that this action could not be
maintained by Joseph & Co., who had no interest in the goods. They
were merely the conduit through which the goods were to be trans-
mitted from Sussman & Polack at Amsterdam to Levy Davids at
Surinam. The property being in Levy Davids, he alone was injured
by the non-deliverv of the goods, and he alone could sue to recover
their value. It has often been decided that an action against a com-
mon carrier for the loss of goods must be brought b}- the purchaser
who ought to receive them, and not by the vendor who has delivered
them to the earlier. There, the vendor delivers them merel}' as the
agent of the purchaser, and on that ground can maintain no action
respecting them. What difference can it make that here the goods
were to be conveyed on board a ship ? The plaintiffs were still merely
the agents of the real owner of the goods.

Lord Ellenborough. 1 am of opinion that this action well lies.
There is a privit}- of contract established between these parties by
means of the bill of lading. That states that the goods were shipped
b3' the plaintiffs, and that the freight for them was paid by the plain-
tiffs in London. To the plaintiffs, therefore, from whom the consid-
eration moves, and to whom the promise is made, the defendant is
liable for the non-delivery of the goods. After such a bill of lading
has been signed by his agent, he cannot say to the shippers they have
no interest in the goods and are not damnified by his breach of con-
tract. I think the plaintiffs are entitled to recover the value of the
goods, and they will hold the sum recovered as trustees for the real
owner.

It appeared that the ship in question was in the same fleet mentioned
in the case of Van Omeron y. Dowick, 2 Campb. 42, and that the
goods were sold at Grenada, exactl}' under the same circumstances.
Lord Ellenborough again laid down the same doctrine with regard
to the authority of the master over the cargo, which was acquiesced
in on the part of the defendant, and the plaintiffs had a verdict^

Garrow^ S. G. Park, and Taclcly, for the plaintiffs.

Topping and Camjybell for the defendant.

1 Ace: Blanchard v. Page, 8 Gray, 281 (1857).

Compare Dawes v. Peck, 8 T. R. 330 (1799).

See Dunlop v. Lambert, 6 CI. & F. 600 (1839) ; Col])nrn v. Phillips, 13 Gray, 64
(1859); Hooper v. Western Railroad Co., 27 Wi.s. 81 (1870) ; Finn v. Western Rail-
road Co., 1 1 2 Mass. 524 (1873) ; Snider i-. Adams Express Co., 77 Mo. 523 ( 1 883). — Ed

666 GARDINER V. DAVIS. [CHAP. V.

GARDNER v. DAVIS.

Nisi Prius. 1825.

[2 c. <y P. 49.]

Assumpsit for goods sold. The plaintiff was a cow-keeper, the
defendant a milkman. The sale and deliver^' by the plaintiff to the
defendant being proved, evidence was adduced on the part of
the defendant, to show, that though the plaintiff ostensibly carried on
the business of a cow-keeper, and had his name painted on the carts,
his initials branded on the pails, &c, yet that the business really
belonged to a Mrs. Evans.

Abbott, C. J. The question here is, more properly*. With whom
was this present contract made? than. To whom did the business
belong? for if a person allow another to trade in his own name, and
to hold himself out to the world as carrying on the business, a pay-
ment to that other would be a good bar to an action brought bj' the
person for whom the trade was reall}' carried on. And the person
ostensibl}' carrying on the trade is by law entitled to recover for goods
sold in the course of that trade unless the person so suffering him to
carry on the trade interfere, by asserting his or her right to the sum
due. In this case, it appears that the defendant owes the money
either to the plaintiff or to Mrs. Evans, and that the business was
carried on b}- the plaintiff in his own name, and that Mrs. Evans has
taken no step whatever to assert any right that she may have to this
money ; and, therefore, taking it that the plaintiff was carrying on the
trade in his own name with her privity and consent, but was really a
sort of agent to her, as she has not interfered to assert an}' claim to
this mone}', he would still be entitled to recover in this action.^

Verdict Jvr t/te plaintiff. Damages £15 6s.

brougham and Abraham, for the plaintiff.
Corny n, for the defendant.

1 In Sims v. Bond, 5 B. & Ad. 389, 393 (1833), Denman, C. J., said: "It is a well
established rule of law, that where a contract, not under seal, is made with an agent,
in his own name, for an undisclosed principal, either the agent or the principal may
sue upon it ; the defendant in the latter case being entitled to be placed in the same
situation, at the time of the disclosure of the real principal, as if the agent had been
the contracting party." — Ed.

SECT. IV.] SHOKT V. SPACKMAN. 667

SHORT AND OTHERS V. SPACKMAN.
King's Bench. 1831.

[2 B. Si- Ad. 962.]

Assumpsit for not delivering goods. At the trial before Lord
Tenterden, C. J., at the sittings in London after Trinity term, 1831,
a verdict was found for the plaintiffs for £600 subject to a reference.
The arbitrator made his award, and annexed to it, at the request of
the defendant's counsel, a statement to the following effect: The
plaintiffs being brokers, and authorized b^- one Hudson to buy for him
twenty tons of Greenland whale oil, employed Bentle^', an oil broker,
to make such purchase for them. Bentley applied to the defendant to
sell that quantity to the plaintiffs. The defendant at first refused to
sell to the plaintiffs ; but, upon being informed by Bentley that they
were purchasing not for themselves, but as brokers for unnamed
principals, he agreed to sell to them ; and bought and sold notes,
signed by Bentley, were sent by him to the plaintiff's and defendant,
in which the goods were stated to be " Bought for Messrs. Short,
Brown, and Bowyer," (the plaintiffs) " of Mr. W. F. Spackman," (the
defendant) on the terms therein specified, to be paid for bj' the buyers
in ready money. The plaintiffs sent a corresponding bought note to
Hudson, their principal ; and they afterwards, under a general author-
ity from him, sold the goods for his account, through another broker,
to Messrs. Buck and Co. The bought and sold notes in this ti'ansac-
tion mentioned the plaintiffs and Buck and Co., as the buying and
selling parties. On this sale being communicated to Hudson, he
returned the sold note, which had been sent to him, declaring that he
would have nothing to do with the oil as purchaser or seller ; and to
this the plaintiffs assented. The defendant afterwards refused to
deliver the oil in pursuance of his agreement, and the plaintiffs, being
unable to fulfil their engagement with Buck and Co., were obliged to
pay them a sum of money in satisfaction, the market having risen
since the last-mentioned contract. It was contended, on behalf of
the defendant, that Hudson's repudiation of the contract, and the ac-
quiescence of the plaintiffs therein, put an end to the engagement
between the plaintiffs and defendant. The arbitrator, however, was
of opinion that these facts did not affect either the rights of the de-
fendant as against Hudson, or the rights and liabilities of the plaintiffs
and defendant. He therefore awarded that the defendant should pay
the plaintiffs the amount of the loss sustained by them in their settle-
ment with Buck and Co. A rule nisi was obtained this term for
setting aside the award, on the ground that the action was not main-
tainable upon the facts above stated.

F. Pollock and F. Kellij now showed cause.

Sir James Scurhdt and Tomlinson, contra.

t)68 UNITED STATES TELEGRAPH CO. V. GILDEESLEVE. [CIIAP. V.

Lord Tenterden, C. J. I had at first some difficulty in coming to
tlie conclusion that the plaintiffs, situated as they were in this case,
could sue upon the contract for their own benefit. But on looking to
the contract itself, there appears nothing to prevent it. The form of
the bought note is, " Bought for Messrs. Short, Brown, and Boyer,"
twenty tons of Greenland oil, at so much per ton, to be paid for by
the buyers in ready mone}'. The sold note is in the like form. In
both the plaintiff's appear as the principals. The rest of the facts are
dehors the present question. The rule will therefore be discharged.

Parke, J. There was no fraud upon the defendant in this case.
He was informed that there was an unknown principal, and such was
the fact. It is found that the plaintiffs were authorized bj' Hudson to
buy the oil of the defendant, and the contract was binding both on
them, and, if the defendant chose to enforce it, on Hudson. Then it
is said the contract was put an end to by what is called the repudiation
on Hudson's part : that is, by his informing the plaintiffs that he would
have nothing more to do with the purchase or sale, and by their ac-
quiescing in such determination. But this is no more, in effect, than if
Hudson had thought proper to sell the benefit of his contract to any
other person, which he might have done without the consent of the
plaintiffs : and his doing so would have been nothing to the defendant.
It clearly would not have determined the contract. I think, therefore,
that the arbitrator came to a right conclusion.

Taunton, J. I am of the same opinion. The alleged repudiation
of the contract b}' Hudson was not a circumstance of which the defend-
ant can take advantage.

Patteson, J. Upon the bought and sold notes the plaintiffs appear
to purchase as principals. To show that the}' acted as brokers, other
facts must be imported into the case ; and upon those facts it appears
that they were duly authorized as brokers. What happened afterwards
cannot affect their right to recover.

Rule discharged.

THE UNITED STATES TELEGRAPH COMPANY v,
GILDERSLEVE.

Court of Appeals of Maryland. 1868.

[29 Md. 232.]

Appeal from the Superior Court of Baltimore City.^ . . .
The defendant also prayed the Court to instruct the jury as
follows : . . .

1 The reporter's statement and the opinion have been abbreviated bj omitting pa»
sages not bearing on Agency. — Ed.

SECT. IV.] UNITED STATES TELEGRAPH CO. V. GILDERSLEVE. 669

3. That the plaintiff cannot recover in this case anything but nomi-
nal damages, if the}' shall find that he has sustained no loss by reason
of the non-delivery of said dispatch, even although they may find that
A. B. Patterson, acting by authority of the plaintiff, sent said message,
and sustained loss b}' reason of such failure.

4. That there is no evidence that the plaintiff has sustained any
damage in tliis cause, and the plaintiff is therefore not entitled to
recover anything beyond nominal damages. . . .

The Court thereupon gianted the plaintiff's prayer, and the defend-
ant's sixth prayer, but rejected the defendant's first five prayers. To
this ruling of the court the defendant excepted. . . . The verdict and
judgment being against him, he appealed.

Jjevin Gale, for the appellant.

John H. Thomas and McIIenrij Hoirard, for the appellee.

Alvey, J., delivered the opinion of the Court.

This was an action, ex contractu, instituted by the appellee against
the appellant to recover of the latter damages resulting from its failure
to transmit and deliver a telegraphic dispatch to certain stock-brokera
in New York.

The dispatch directed to be transmitted was as follows : —

*' No. 15. Broker's Telegram Like, 4.

"People's Telegraph Lines,
"No. 23 South Street, and Barnum's City Hotel, Bait.
" Send the following message, without repeating it, subject to the
conditions indorsed on the back : —

"Dated Baltimore, March 9, 1865.
" To Dibble and Cambloss, N. Y.

" Sell fifty (50) gold. Words 3, cal. 70.

" Geo, Gildersleve.'*

It is alleged that this dispatch was an order to the brokers in New
York to sell for the appellee fifty thousand dollars of gold, which order
the brokers would have obeyed, but the appellant neglected to telegraph
such dispatch, whereb}' the appellee was greatly damaged by reason of
the decline in tlie market price of gold. The appellant pleaded, not
indebted as alleged ; with an agreement that such plea should be re-
ceived, and that all errors in pleading should be mutiiall}' waived, and
that either party might rely on any claim or defence to which he or it
would be entitled, if specially declared on or pleaded.

At the trial below, the appellee offered one prayer to the court, which
was granted ; and the appellant offered six prayers, of which the first
five were rejected, and the sixth was granted. And it was to the grant-
ing of the appellee's pra3'er, and the refusal of those on the part of the
appellant, that the first exception was taken.

On this exception, four questions arise: —

1. Whether the appellee can maintain this action, and recover more
than nominal damages for the default of the appellant.

670 UNITED STATES TELEGRAPH CO. V. GILDERSLEVE. [CHAP. V.

2. Whether the contract for transmission of the message was subject
to the terms and conditions printed on tlie back of the dispatch, or to
other similar terms and conditions prescribed by the rules and regula-
tions of the appellant's office.

3. To what extent, if the contract be subject to such terms and
conditions, can the appellant claim to be exonerated from liability
thereunder.

4. To what measure of damage is the appellant subject, if the con-
tract be broken.

1. It appears that the appellee was a broker in Baltimore, and that
Dibble and Cambloss were his correspondents and agents in New York,
through whom he was in the habit of buying and selling stocks and
gold in the latter city; that A. B. Patterson, also a broker in Balti-
more, was appellee's customer, for whom the appellee was in the habit
as broker of buying and selling gold and stock in New York, through
the agency of Dibble and Cambloss ; that by arrangement previously-
made between appellee and Patterson, for the purpose of saving trouble
to them both, instead of I'atterson being required to give orders to the
appellee for such purchases and sales, and the appellee being required
to send them to his correspondents, Patterson was authorized to send
orders in the appellee's name, and on his responsibility- and account,
to Dibble and Cambloss, for the purchase or sale of stock or gold ;
and that by this arrangement the appellee was entitled to his commis-
sions on purchases and sales made in compliance with such orders, and
the rights and liabilities of the appellee and Patterson respectively in
reference to the orders so sent were in all respects the same as if Pat-
terson had given the orders to the appellee, and the latter had trans-
mitted or undertaken to transmit them to Dibble and Cambloss, in his
own name, Patterson not being known to and having no connection
with Dibble and Cambloss, except through the appellee ; that under
said arrangement, on the 9th of March, 1865, at about 3.40 p. m., the
message in question, addressed to Dibble and Cambloss, was left b}-
Patterson's direction at appellant's office, in Baltimore, and that the
appellant, by its agents, undertook to send and deliver it to the parties
to whom it was addressed ; that the message was sent to the office
without the knowledge or special direction of the appellee, but that he
■was soon after informed of it, and fully sanctioned it. The appellee
also testified ihat he was not interested in this ti-ansaction, and had not
paid any loss to Patterson, and did not consider himself liable to Pat-
terson unless he recovered in this suit, in which event anything that
was recovered was to be paid over to Pattei'son. It was also proved
that appellee had on the da}' of the date of the message two hundred
thousand dollars of gold to his credit with Dibble and Cambloss, and
of that sum, as between appellee and Patterson, ninety-five thousand
dollars belonged to the latter.

Upon such state of facts, the appellee was clearly the agent of Pat-
terson, and as such agent, held and controlled the gold of his principal.

SECT. IV.] UNITED STATES TELEGRAPH CO. V. GILDERSLEVE. 671

It was embraced in the appellee's account, and he had credit for it in
the books of his correspondent, and no other person than himself could
have withdrawn it or disposed of it. And apart from the fact that he
had a special property or interest in the gold of his principal thus at
his disposal, he was beneficialh' interested, at the time of the order
given, to the extent of commissions on the sale. And where an agent
is thus interested, as for commissions, or by reason of special property
in the subject-matter, and the contract, in reference thereto, is made in
his name, it is perfectly competent for him to sue and maintain an
action in his own name, as if he were the princi[)al. This is so in the
case of a factor, or a broker, or a warehouseman, or carrier or auc-
tioneer, a policy broker whose name is on the policy-, or the captain of
a ship for freight. So where a contract is in terms, as in this case,
made with an agent personally, he may sue thereon ; and if an agent,
in his own name, carr}' on a business for his principal, and appear to
be the proprietor, and sell goods in the trade as such apparent owner,
he can sustain an action in his own name for the price. 1 Chit. PI. 8 ;
Joseph y. Knox, 3 Camp. 320 ; Gardiner r. Davis, 2 Car. & P. 49 ;
Dancer c. Hastings, 4 Bing. 2. And where A., for his own account
and risk, carried on trade in the name of B., it was held that an action
for goods sold in the course of such trade was properl}- brought in the
name of B. Alsop v. Caines, 10 Johns. 396. And so again, where
goods are consigned by A. to B., the former, in contemplation of law, is
the agent of the latter, for the purpose of contracting for the carriage ;
and where a bill of lading stated that the goods were shipped, and their
freight paid by the consignor, it was held to establish a privity of con-
tract between the consignor and shipowner, which would entitle the
former to recover against the latter for non-deliver}' of the goods, the
damages so recovered being held by the plaintiff in trust for the con-
signee. Joseph V. Knox, 3 Camp. 320; Broom on Parties, 49. And
if, in the instances mentioned, the agent can sue and recover the full
measure of damages, we can see no reason wh}- the appellee, looking
to his relation to this transaction, may not recover the full amount of
damages resulting from a breach of the contract with the appellant.
He, of course, sues and recovers as trustee for his principal. The
court below was therefore right in rejecting the appellant's third and
fourth prayers, which raised the question of the right of the appellee to
recover more than nominal damages. . . .

Differing with the court below in regard to the appellee's pra3'er and
the first and second prayers of the appellant, we must reverse its
judgment. Judgment reversed and procedendo awarded.

672 LUDWIG V. GILLESPIE. [CHAP. V.

LUDWIG, Respondent, v. GILLESPIE, Appellant.

Court of Appeals of New York. 1887.

[105 N. Y. 653.1]

The following is the mem. of opinion herein : —

" The action was to recover $22,2yL60, as the price of certain
bitumen theretofore sold and delivered by the plaintiff to the defendant.
Besides a general denial, the answer set up that the bitumen was sold
and delivered by the plaintiff, not on his own account, " but as known
agent for the firm of Aries, Uufour, & Co., his disclosed principals
under a special contract in writing, and without authority to receive
the proceeds of such sales," and upon this defence the defendant,
upon trial of the issues before a referee, asked a dismissal of the
complaint. His request was denied and judgment went against him,
both upon the report of the referee and at the General Term.

" The principal point made in his behalf upon this appeal is that
the action was improperly brought b}' the plaintiff in his own name.
It appeared that the contract was negotiated by one Clarke, a broker,
who in that character made and signed a writing which, so far as is
material, was in these words : ' New York, April 25, 1882. — Sold for
account of Mr. E. Ludwig, Agt., to Mr. L. C. Gillespie, four thousand
(4,000) cases Syrian bitumen,' etc. A time for delivery was speci-
fied and the price declared ' payable thirty da3s from each delivery.'
This contract was assented to by both parties, and the referee finds
that ' there was no proof that the name of Aries, Dufour, & Co. was
disclosed or mentioned as the principal of the plaintiff in the negotia-
tions for the sale, nor at any time before this contract had been exe-
cuted and delivered ; but he also finds that at the time of making it
the ' plaintiff was in fact the agent of Aries, Dufour, & Co., of
Marseilles, France, for the sale of imported goods,' and that the
bitumen was sold and delivered by him, not on his own account, but
for and on account of Aries, Dufour, & Co., and as their agent.

" The evidence sustains these findings, and the case is thus brought
within the well established rule of law that when a contract not under
seal is made with an agent in his own name for an undisclosed princi-
pal, whether he describes himself to be an agent or not, either the
agent or principal may sue upon it. Considerant v. Brisbane, 22
N. Y. 389; Schaefer v. Henkel, 75 id. 378.

" The defendant has received the thing bargained for, and a recovery
by the plaintiff and payment of the judgment will be a complete pro-
tection to the defendant against any claim of the principal arising upon
the contract.

" The other questions presented by the appellant relate to rulings by

1 Among " Memoranda of causes not reported in full." — Ed.

SECT, v.] RABONE V. WILLIAMS. 673

the referee upon offers of evidence, and were properly held b}' the
Generiil Term to be without merit.

" Tlie judgment should be affirmed."

IVilliam midreth Field for appellant.

M. W. Divine for respondent.

Danforth, J., reads for affirmance. All concur.

Judgment affirmed.

SECTION V.

Defences.
{A) Ih an Action brought by the Principal against the Third Party.

RABONE, JuN., V. WILLIAMS.
Nisi Prids. 1785.

[7 T. R. 360, n. (a).]

Action for the value of goods sold to the defendant b}^ means of the
house of Rabone, Sen., and Co. at Exeter, factors to the plaintiff.
The defendant, the vendee of the goods, set off a debt due to him from
Rabone and Co., the factors, upon another account, alleging that the
plaintiff had not appeared at all in the transaction, and that credit had
been given by Rabone and Co., the factors, and not by the plaintiff.

Lord Mansfield, C. J. Where a factor, dealing for a principal but
concealing that principal, delivers goods in his own name, the person
contracting with him has a right to consider him to all intents and pur-
poses as the principal ; and though the real principal may appear and
bring an action upon that contract against the purchaser of the goods,
3'et that purchaser maj'^ set off any claim he ma}' have against the fac-
tor in answer to the demand of the principal. This has been long
settled.^

Upon this opinion the rest^ being a mere matter of account,
icas referred.

1 In Bayley v. Morley, London Sittings after Mich. 1788, Lord Kbnyon recognized
the law of this case. — Rep.

674 GEOEGE V. CLAGETT. [CHAP. V.

GEORGE V. CLAGETT and another.

King's Bench. 1797.

[7 T. R. 359.]

On the trial of this action, which was assumpsit for goods sold and
delivered to the amount of £142 Is. 9c?., before Lord Kenyon at the
Guildhall Sittings, the case appeared to be this : The plaintiff a clothier
at Frome emplo3-ed Messrs. Rich and Heapy in London, Black well-
Hall factors, as his factors under a commission del credere, who besides
acting as factors bought and sold great quantities of woollen cloths on
their own account, all their business being carried on at one warehouse.
The factors sold at twelve months' credit, and were allowed two and a
half per cent. On the 30th of September, 1795, Delvalle, a tobacco
broker, and who had been in habits of dealing with the defendants,
bought several parcels of tobacco of them, and gave them in payment
a bill of exchange for £1,198 16s. drawn by one Fisher on Rich and
Heap3', on the 24th of September, 1795, payable two months after date
to J. Stafford who indorsed to Delvalle, who indorsed it over to the
defendants, it having been previously accepted by Rich and Heapj-.
On the 12th of October, 1795, the defendants bought a quantity of
woollen cloths for exportation of Rich and Heap}', amounting to £1,237
18s. Zd. at twelve months' credit ; the goods were taken out of one gen-
eral mass in Rich and Heapy's warehouse ; Rich and Heapy made out
a bill of parcels for the whole in their own names, and the defendants
did not know that any part of the goods belonged to the plaintiff.
Early in November, 1795, Rich and Heap}' became bankrupts; and
afterwards, on the 20th of the same month, the plaintiff gave the
defendants notice not to pay Rich and Heapy for certain cloths speci-
fied, part of the above, amounting to £142 Is. 2d.^ the}- having been
his property, and having been sold on his account by Rich and Heapy
on commission. The question was whether the defendants were or
were not entitled to set off their demand against Rich and Heapy on
the bill of exchange, on the ground that the defendants dealt with them
as principals ; Lord Kenyon was of opinion that they were, as well on
principle as on the authority of Rabone v. Williams ; and a verdict was
accordingly found for the defendants.

A rule having been obtained, calling on the defendants to show
cause why the verdict should not be set aside, and a new trial had,
on the authority of the case of Estcott v. Milward, Co. Bank Laws,
236.

Gihhs and Giles were now to have shown cause against that rule.

Erskine and Walton were called upon to support it.

SECT, v.] HORNBY V. LACY. 675

The Court were clearly of opinion that the directions given by the
learned judge on the trial of tliis cause were right ; and that this case
was not distinguishable from that of Rabone v. Williams. Tiierefore
they Disc/iarged the rule}

HORNBY AND OTHERS V. LACY.

King's Bench. 1817,
[6 M. Si- S. 166.]

Assumpsit for goods sold and delivered, money lent, money paid,
money had and received, and on an account stated. Plea, general
issue. On the trial at the London sittings after Trinity term, 1814, a
verdict was found for the plaintiffs for £132 146'. Gt/., subject to the
opinion of the Court on the following case : which it was agreed should
be turned into a special verdict if the Court should think i)roper so to
direct.

The action is brought to recover the price of two parcels of linens
sold to the defendant, who resides and carries on business in London,
under the firm of Hamle3' & Lac}', by Messrs. Duckham & Lankester
of London. The goods belonged to the plaintiffs, who are linen manu-
facturers at Bentham, Yorkshire, and were, with others, consigned by
them to Duckham & Lankester, as their factors, for sale.

The first parcel was sold on the 2yth of April, 1810, for £26 18s., at
four months' credit from the 1st of June, 1810, and the last on the
25th of May, 1810, for £105 16s. 6(/., at four months' credit from the
1st of July, 1810. The plaintiff's were in the habit of sending goods
to Duckham & Lankester, to dispose of as their factors and paid
them a del credere commission. Duckham &, Lankester transmitted
to the plaintiffs monthl}' accounts of the sales, made up from the
24th of one month to the 24th of the following month, but in
these accounts the names of the purchasers were not stated. The
general course of dealing between Duckham &, Lankester and the
defendant was for them to draw on him, for the goods purchased
by him, at the end of two months from the time the credit began
to run, bills at two months ; that between Duckham & Lankester and
the plaintiffs was for the latter to draw upon Duckham & Lankester
for the amount of such sales, at the expiration of two months from
the first day of the month succeeding that for which the account was
rendered, bills at two months ; so that it was in regular course for the
plaintiffs to draw, and they did draw on Duckham & Lankester on the
1st of August for the goods sold to the defendant on the 25th of April,
and on the 1st of September for those sold on the 25th of May. Duck-

1 Ace. : Montagu v. Forvrood, [1893] 2 Q. B. 350 (C. A.).
See Lime Rock Bank v. Plimpton, 17 Pick. 159 (1835). — Ed.

676 HORNBY V. LACY. [CHAP. V.

ham & Lankester dealt as factors for man}- other persons besides the
plaiutiffs, and had been for some time accustomed to sell goods to the
defendant ; and the}- did not communicate to him the names of the per-
sons to whom the goods belonged, but the defendant knew they were
onh" factors. The invoices were entitled, '" Messrs. Hamlc}', Lacey,
and Co. bought of Duckham, Lankester & Co., cotton and linen fac-
tors ; " and in them it was stated that no short measure or damages
should be allowed unless agreed to within three days after the sale.
The invoices of the two parcels in question were so entitled, and Duck-
ham & Lankester also on one occasion acted as factors to the defend-
ant. On the 11th of September, 1810, before the credit at which
either of the two parcels of goods was sold had expired, and before the
bills which had been drawn b}' the plaintiffs according to the usual
course became payable, Duckham & Lankester stopped pa3'ment, and
\n January following became bankrupt. The plaintiffs not having been
paid by Duckham & Lankester for these goods, on the 23d of Novem-
ber, 1810, gave notice to the defendant that the goods sold in May
were theirs, and required him to pay them and not Duckham & Lank-
ester for them. Duckham & Lankester, besides selling goods to the
defendant as above stated, had a bill-account with him for their mutual
accommodation, and kept two separate accounts, the one of the goods,
the other of the bill transactions. The defendant kept only one
account of the goods and bills. At the time of Duckham & Lankester's
stopping payment, there was a balance due to them from the defend-
ant, as appeared upon Duckham & Lankester's books, of £1,945 lis.
5c?. on the goods account, and at that time there also appeared a balance
in their favor on the bill-account ; but in consequence of the defendant
having afterwards taken up some returned bills, Duckham & Lankester
were debtors upon the two accounts together at the time of the action
brought in the sum of £8 5s. The plaintiffs have not been paid for
the goods, nor has the defendant paid Duckham & Lankester form-
ally for them.

The question for the opinion of the Court is, Whether the plaintiffs
are entitled to recover? If they are, the verdict to stand; if not, a
nonsuit to be entered.

Gaselee, for the plaintiffs.

Littledale, contra.

Lord Ellenborough, C. J. I own I cannot think that a commission
del credere is to have an effect attributed to it beyond that which regards
the benefit of the principal who gives the commission. The commission
imports, that if the vendee does not pay, the factor will : it is a guar-
antee from the factor to the principal against any mischief to arise from
the vendee's insolvenc}-. But it varies not an iota the rights subsisting
between vendor and vendee. A somewhat different doctrine seems to
have originated with Grove v. Dubois. A kind of magic effect was
there given to a commission del credere, changing the relative position
of the owner and buyer ; and what is reported to have fallen from

SECT. V.J HORNBY V. LACY. 677

Chambre, J., in a later case, is referable to the same authority'; but
this was set right, as I tliink, in the judgment in Morris v. Cleasby,
M. & S. 574, which was given after much consideration, and, I ma}'
add, with the concurrence of two of our learned brethren on this bench,
now, unhappily, no more. The ulterior effect given to this commission
in the above cases has created the confusion. As to the argument
founded on the drawing of bills, if it had amounted to payment, or to a
case of mutual credit, George o. Clagget, 7 T. R. Soli, the argument
would have been good. Tliis was \evy recently considered by us ia
Graham v. Dyster, 6 M. & S. 1.

Bayley, J. It is important that the relative position of principal
and factor should be understood and kept distinct. The factor is
agent, the parties to be considered as principals are the owner and
buyer. The owner has a right to look for payment to the bujer, unless
by some act in which he has concurred he has deprived himself of that
right. When he gives a del credere commission, he means to obtain an
additional security ; that is, the security of the factor ; and it would be
extremely hard if, instead of having an additional security, he should
find that he had onl}' substituted one for another, tliat he had shifted
the responsibility from the buyer to the factor. In Morris v. Cleasby
the effect of such a commission was much considered, and it was held
that it could not have any such effect. If tlie vendee pa}- the factor for
the purchase in due course, and according to the contract, he will be
protected ; but if otherwise, he pavs on the credit of the factor.

Abbott, J. A del credere commission is in the nature of a private
agreement between factor and principal, and, therefore, cannot vary th«
rights of third parties. The present is the case of a sale by a factor,
the purchaser knowing him to have been such. Acceptances given, oi
payment made at the time, according to the usual course of trade,
would have discharged the purchaser. No such paN'ment having been
made, the principal had a right to step in and require payment to him-
self. The circumstance of there being a bill-account between the
parties does not varj' these rights, these being founded on the del
credere commission.

HoLROYT), J. I am of the same opinion with respect to the effect of
a del credere commission and the sale transaction. "Where the party
selling is known to be a factor, if the vendee pa}' the price to him,
according to the usual course of his authority to receive, this will dis--
charge him ; but it is not by a course of drawing bills between tha
principal and factor, as stated in the case, that he can be discharged.

Jndgmerit for the plaintiff}

1 See Blackburn v. Scholes, 2 Camp. 341 (1809). — Ed.

678 BOKRIES V. IMPERIAL OTTOMAN BANK. [CHAP. V.

BORRIES AKD ANOTHER V. THE IMPERIAL OTTOMAN BANK.

Common Pleas. 1873.

[L. R. 9 C. P. 38.]

The second count was for goods sold and delivered, money received
by the defendants for the use of the plaintiffs, and interest.

Fifth plea, as to so uuich of the second count as related to mone}"
payable for goods sold and delivered by the plaintiffs to the defendants,
that the goods were sold and delivered to the defendants by certain
persons known and carrying on business as Scheitlin & Co., then
being the agents of the plaintiffs in that behalf and intrusted by the
plaintiffs with the possession of the goods as apparent owners thereof;
that Scheitlin & Co. sold and delivered the goods in their own name
and as their own goods, with the consent of the plaintiffs ; that, at the
time of the sale and delivery of the goods, the defendants believed
Scheitlin & Co. to be the owners of the goods, and did not know that
the plaintiffs were the owners of the goods or of any of them, or were
interested therein or in the said sale thereof, or that Scheitlin & Co.
were agents in that behalf; that, before the defendants knew that the
plaintiffs were the owners of the goods or any of them, or interested
therein, or that Scheitlin & Co. were agents in the sale thereof,
Scheitlin & Co. became, and at the commencement of the suit were
and still remained indebted to the defendants in an amount equal to
the plaintiffs' claim, as the drawers of certain dishonored bills of
exchange which had been refused acceptance by the drawees, and for
goods bargained and sold by the defendants to Scheitlin & Co., and
for work done, &c., &c., — which amount the defendants were willing
to set off against the plaintiffs' claim.

Second replication to the fifth plea, — that, before and at the time
when the goods were so sold and delivered to the defendants as in the
plea mentioned by the persons known as Scheitlin & Co. to the defen-
dants, they the defendants had the means of knowing that Scheitlin &
Co. were merely apparent owners of the goods, and that the same were
intrusted to Scheitlin & Co. as agents of and for the plaintiffs, and that
Scheitlin & Co. were agents of and for the plaintiffs, and as agents of
and for the plaintiffs sold and delivered the goods to the defendants.

Third replication to the fifth plea, — that, before and at the time
when the goods were so sold and delivered to the defendants as in
the plea mentioned by Scheitlin & Co., they the defendants had the
means of knowing that Scheitlin & Co. were merely apparent owners
of the goods, and that the same were intrusted to Scheitlin & Co. as
agents, and that Scheitlin & Co. were agents and as agents sold and
delivered the goods to the defendants.

Demurrer to the fifth plea, on the ground that it did not allege that

SECT, v.] BOKRIES V. IMPERIAL OTTOMAX BANK. 679

the defendants had not the means of knowledge that Sehcitlln & Co.
were acting in the sale as agents. Joinder.

Demnners to the second and third replications to the fifth plea,
on the ground that, inasmuch as the defendants acted in the bona fide
belief that Sclieitlin & Co. were the owners of the goods, and did not
know that ScheitHn & Co. were acting in the sale as agents, it was
immaterial whether they had such means of knowledge as alleged.
Joinder.

Uda//, for the plaintiffs.

Jlolf, contr<(.

CoLEKiDGE, C. J. I am of opinion that our judgment should be
for the defendants.^ ... It was in the first place contended by Mr.
Udall that the plea should have averred, not only that the defendants
did not know that the plaintiffs were the owners of the goods, and
believed Scheitlin & Co. to be the owners, but also that the defend-
ants had not the means of knowledge that Scheitlin & Co. were not
owners, but were acting in tlie sale as agents. It appears to me, how-
ever, that the plea states all that is material to raise the defence. It
states that the plaintiffs intrusted Scheitlin & Co. with the goods foi
sale, that they sold them, and that the defendants bought them believ-
ing Scheitlin & Co. to be the owners of them. The essence of the
defence is, the real state of the defendants' minds when they bought
the goods of Scheitlin & Co. They assert that it was this, that thev
believed the goods to be the goods of Scheitlin &, Co., and did not know
or believe that the plaintiffs were the owners of or interested in them.
That brings the case distinctly within the rule in George v. Clagett,
7 T. R. 359, and that is the form of plea which has been commonly
in use to raise a defence of this kind. I observe that in two cases, —
Purchell v. Salter, 1 Q. B. 197, and Semenza >\ Brinsley, 18 C. B. N. s.
467, — where the plea contained an averment that the defendant had
no means of knowledge, no notice is taken of that allegation in the
judgment. If it be necessary to aver that the defendants had not
notice that the plaintiffs were the owners of the goods, I think that
is substantially averred in this plea b}' the statement that Scheitlin
& Co., with the consent of the plaintiffs, sold the goods as their own,
and that the defendants believed them to be the owners of them, and
did not know that the plaintiffs were the owners. The plea being good,
it follows that the replication, which mereh' states that at the time of
the sale the defendants had the means of knowing that Scheitlin & Co.
were only apparent owners and were intrusted with the goods as agents
of the plaintiflTs, is no answer to the plea, — being a mere statement of
a fact which was immaterial.

Keating, J. I am of the same opinion. ... I think it was quite
unnecessary to go on and aver that the defendants had not notice or
means of knowledge ; for, if they had means of knowledge, that might

1 The passages omitted from the several opinions contained restatements of the
case. — Ed.

680 BOERIES V. IMPERIAL OTTOMAN BANK. [CHAP. V.

be given in evidence under a traverse of the allegation of want of
knowledge. For these reasons, I entirely agree with ni}- Lord that
the plea is good, and that the replications afford no answer to it.

Brett, J. . . . Assuming the other averments in the plea to be true,
such an averment as it is contended ought to appear in it would, as it
seems to me, throw upon the purchasers of goods a burthen which the
mercantile law never intended should be cast upon them. " Means of
knowledge " is so large and comprehensive a term that the defendants
might be bound to prove that they could not by inquiry have ascer-
tained that the plaintiffs were the owners of the goods, and that
Scheitlin & Co. were acting only as agents in the sale of them. That
would be manifestly unjust, seeing that the plaintiffs, by intrusting
Scheitlin & Co. with the possession of tlie goods for sale, gave them
the opportunity of representing themselves to be the real owners of
them. It was further said that the plea is bad for not averring that the
defendants had not notice. It is unnecessary to decide that. If it
were, I should be prepared to hold that the negation of notice is
involved in the affirmative allegation that Scheitlin & Co. sold the
goods in their own names and as their own goods, and that the defend-
ants bought them believing Scheitlin & Co. to be the owners and not
knowing the plaintiffs to be the owners. But, though it is not neces-
sary, I should incline to go further and to say, that, if the replication
bad expressly averred that the defendants had notice at the time of the
sale that Scheitlin & Co. were acting merely as agents, if the allega-
tions in the plea were true that averment would be immaterial. 1 take
the rule of law to have been properly laid down by Willes, J., in
Semenza v. Brinsley, where, treating of the facts necessary to be
alleged in a plea of this sort, he says, referring to the rule in George v,
Clao-ett: "In order to make a valid defence within the rule above
stated, it is obvious that the plea should show that the contract was
made by a person whom the plaintiff had intrusted with the possession
of the goods, that that person sold them as his own goods in his own
name as principal, with the authority of the plaintiff, that the defendant
dealt witli him as and believed him to be the principal in the transac-
tion, and that before the defendant was undeceived in that respect the
set-off accrued." In that statement of the law by that very learned
judge, neither of the allegations the absence of which is relied on
here is alluded to. Mr. Udall's reference to the precedent in Chitty,
jun. 3rd ed. p. 514, shows that the extreme caution of the learned
editors induced thein to put in something which was not absolutely
necessary to the validity of the plea. I am of opinion that the plea
is good, and the replications bad.

Denman, J. I am of the same opinion. I think the plea contains
all that is essential to constitute a defence. Means of knowledge may
be material evidence on the trial. So, the allegation of notice would be
merely stating matter of evidence.

Judgment for the defendants.

SECT, v.] ROOSEVELT V. DOHERTY. 681

R008P:VELT v. DOHERTY.

Supreme Judicial Coukt of Massachusetts. 1880.

[129 Mass. 301.)

Contract to recover the price of plate glass sold and delivered to
the defendant. Trial in the Superior Court, before Pitman, J., who
directed a verdict for the defendant, and reported the case for the
determination of this court. If the plaintiff could maintain the action,
a new trial was to be ordered ; otherwise, judgment on the verdict.
The facts appear in the opinion.

H. Grai/ tt' H. W. Swift, for the plaintiff.

F. S. Ilesseltine, for the defendant.

Endicott, J, It appears from the report that the firm of Hills,
Turner, &, Harmon were importers of and dealers in window and plate
glass, and they made a contract in writing witli the defendant to
furnish the glass for a building which he was about to erect in Boston,
according to the specifications furnished by the architect, for the gross
sum of $688 in cash. The contract describes the quality and diraen*
sions of the glass to be furnished, and the number of lights of each
qualit}-. Hills, Turner, &, Harmon were the selling agents for the
plaintiff, in Boston, for plate glass, and the hrst four items of glass to
be furnished, as specified in the contract, were plate glass, and be-
longed to the plaintiff, having been consigned to the firm for sale.
The remainder of the glass was furnished by the firm. The defendant
had no knowledge that any of the glass belonged to the plaintiff.

We can have no doubt that, as between the firm and the defendant,
this was an entire contract ; it was to furnish the glass for the building
for a specified sum of mone}'. There was no price named in tLie con-
tract for the several kinds and qualities of glass to be furnished ; and it
is immaterial that the quality of the several kinds of glass to be fur-
nished was specified. The consideration being entire, there could be
no distinct apportionment of the consideration between the different
qualities of glass furnished. There were not two contracts, one for
plate glass, and the other for glass of different qualities, but one con-
tract for all the glass thus furnished to the building. Clark v. Baker,
5 Met. 452. The firm could not recover for any portion of the glass,
but only on the entire contract, by which all the glass passed to the
defendant. And the question to be considered here is, whether the
plaintiff, as an undisclosed principal, can maintain an action against
the defendant to recover the value of the plate glass belonging to him,
included in the entire contract. We are of opinion that he cannot.

It is too well settled to require the citation of many authorities, that
an undisclosed principal, whose goods are sold by a factor, may sue
the purchaser for the price ; and where the contract of sale is in writ-
ing, and made in the name of the factor, he may bring an action upon

682 ROOSEVELT V. DOHERTY. [CHAP. V.

it. A sale by his agent is a sale b}- him. Lerned u. Johns, 9 Allen,
419, and cases cited.

In the case at bar, it does not appear that any instructions were
given b}' the plaintiff in regard to the price, manner, or terms of sale
of his goods. The factors therefore had the right to sell in such
manner as would best promote the interests of their prhicipal ; and it
is to be presumed that the plaintiff understood that the}- would sell
according to the usual course of dealing in Boston, when goods are
consigned to a factor for sale. Dwight v. Whitne}', 15 Pick. 179.
That a factor may sell on credit, and take a note in his own name
from the purchaser, and if he uses due diligence he is not responsible,
in case of loss b}' reason of the purchaser's failure, was settled in an
earl}' case. A factor also may, and often does, sell the goods of differ-
ent principals in one sale, and has authorit}- to take a note for the
whole sum from the purchaser, and may hold the note for the benefit
of his principals. Goodenow v. Tyler, 7 Mass. 36 ; Chesterfield
Manuf. Co. y. Dehon, 5 Pick. 7 ; West Boylston Manuf. Co. v.
Searle, 15 Pick. 225 ; Hapgood v. Batcheller, 4 Met. 573 ; Hamilton
V. Cunningham, 2 Brock. 350 ; Corlies v. Gumming, 6 Cowen, 181 ;
Beawes Lex Merc. (5th ed.) 45.

In West Boylston Manuf. Co. v. Searle, ubi siqjra, a factor sold the
goods of two consignors in one sale, and took the note of the pur-
chaser ; and it was held that it operated as payment ; that the factor
had power to release it ; and, although he afterwards indorsed it to
one of the consignors, that no action could be maintained on the note
by the indorsee ; and the Court said, " The factors having an unques-
tioned authority to take a negotiable note in their own name, and
thereupon to cancel and discharge the simple contract debt, the note
was rightly taken, and whether it was rightly held and retained by the
factors as their own, or otherwise appropriated, was a question merely
between them and their employers."

So a factor may sell his own goods with those of his principal, and
take a note which includes the amount due for both, as in Hapgood v.
Batcheller, 4 Met. 573. In that case it appears that the factors had
sold goods of the plaintiffs and some of their own in one sale, and had
taken a note from the purchaser which included the amount due for
the plaintiff's goods and their own ; and it was said by the Court, that
the sales by the defendant were made in the nsual manner, and the
terms of credit were reasonable, and that the sales were at the risk of
the principals. Accounts had been rendered to the plaintiff by the
factors of the sale of the goods, a portion of the proceeds had been
paid over, and the note in suit was given for the balance by the factors
to the plaintiff. Before the note of the purchasers was due, they
became insolvent, and it was held that, as a note for the balance of
an account is oii\\ prima facie evidence of payment, the factors were
not liable for so much of the note as included the debt of the insolvent
purchaser. See also Vail v. Durant, 7 Allen, 408.

SECT, v.] KOOSEVELT V. DOHERTY. 683

It is clear, therefore, that when a note is taken from a purchaser hy
a factor, for the sale of the goods of several consignors, or for the
sale of the goods of one or more consignors and of the goods of th&
factor, one consignor cannot sue the purchaser for the value of his
goods taken separately, although his goods were sold for a definite
sum, capable of being ascertained, and which forms a distinct part of
the consideration of the note. The note is payment for the whole, it
is a contract which the factor had the right to make, and upon which
alone the purchaser is liable. The principal is thus deprived of his
direct remedy against the purchaser for the separate price of his goods.

In the case at bar, Hills, Turner, & Harmon were importers of and
dealers in glass, as well as selling agents for the plaintiff, and they
could sell their own goods with those of the plaintiff, in the same
manner as they could soil the goods of several principals together.
Having authority to do this, and thus mingle the plaintiffs goods with
their own, they ma}' make an entire contract with the purchaser for
the goods so mingled. And this contract being entire, the remedy, as
against the purchaser, must be upon the contract itself. The charac-
ter of the contract precludes the plaintiff from suing separatel}- for the
vahie of his glass, to the same extent as he would have been precluded
if a note had been given by the defendant in payment for the goods
sold to him under the written contract. And although an undisclosed
principal ma}' maintain an action in his own name against one who
has purchased his goods through a factor, yet the purchaser is entitled
to all the equities and defences he would have had if the action had
been brought in the name of the factor, for the principal has permitted
his factor to act as the apparent principal in the transaction. Hunting-
ton V. Knox, 7 Cush. 371; Barr\- v. Page, 10 Gra}-, 398; Locke v.
Lewis, 124 Mass. 1, 7, and cases cited.

No case has been cited, in the ver}- elaborate argument for the
plaintiff, in which such an action as this has been maintained ; but it
is argued that the plaintiff's position is sustained by the onl}' two cases
which bear upon this point, — Corlies v. Camming, 6 Cowen, 181;
"West Boylston Manuf. Co. v. Searle, 15 Pick. 225.

The case of Corlies v. Cumming is clearly distinguishable. There a
factor sold cheese of one of his consignors on a credit of ninety days
for a definite and distinct sura, and at the same time sold to the same
purchaser cheese belonging to another consignor, and took from the
purchaser a note payable to himself for both. As the note b}' the law
of New York was not a payment, it was held that the factor had not
made himself liable, for the principal might sue the purchaser for the
price of his cheeses, which could be clearl}' ascertained, in the same
manner as he might have done if no note had been taken.

A dictum of Chief Justice Shaw in West Boylston Manuf. Co. v.
Searle is relied on by the plaintiff. "If," he says, "the principal is
in a condition to declare on a contract for goods sold, treating the note
as a nullity, or as a mere collateral security, not amounting to paj--

684 STEBBINS V. WALKER. [CHAP. V.

ment, he might probably recover in his own name." This, as a
general proposition, may be correct, but as b}- our law a promissory
note is prima facie pa3ment, the principal cannot recover for goods
sold, where such a note has been given in payment for his goods.

We are therefore of opinion that the presiding judge correctl}' ruled
that the contract made by the defendant was an entire contract for a
gross sum ; and that the plaintiff had no right to sever the same and
maintain an action in his own name, and subject the defendant to a
separate suit for the value of the plate glass belonging to him and
included in the contract of sale.

Judgment on the verdicU

ORAMEL G. STEBBINS v. WALKER and another.
Supreme Court of Michigan. 1881.

[46 Mich. 5.]

Assumpsit. Plaintiff brings error. Affirmed.

Latham & Case, for plaintiff in error.

J. W. McGrath, and C. I. Walker, for defendants in error.

CooLEY, J. This case was sent to a referee by the circuit court, audi
judgment was given in favor of defendant on the referee's report. The
important facts in the case are the following : —

For some time prior to June, 1879, and up to August of that year,
plaintiff was a dealer in grain at Vermontville in this State, and defend-
ants were commission brokers and members of the Board of Trade of
Detroit. As commission brokers the}' had bought and sold for the
plaintiff previous to the 30th of June, 1879, and made advances which
were all settled on that day. On August 14, 1879, plaintiff made a
conditional sale of his business to his brother Osmyn G. Stebbins.
The conditions were to be performed within a week thereafter, but the}'
were not performed, and at the end of the week plaintiff resumed his
business and took possession of his property, which in the mean time
his brother had had and controlled, A few days before this the de-
fendants had written the plaintiff, soliciting his shipments, and in reply
they received the following letter : —

Office of O. G. Stebbins,
Thornapple Valley Mills,
And dealer in Grain, Feed, Land, Plaster, etc.

Vermontville, Mich., Aug. 14, 1879.
Messrs. Walker, Sumner, «fe Co. :

Your letter of the 4th of August was duly received at my stopping
place, and by reason of my absence from home and general inattention
to business lies unanswered. At the opening of the new crop trade
this season I did not think I should engage in active work at all at
present ; and as I am yet unable to labor, I do not know when I shall
take hold again. I am now seriously contemplating a trip to Colorado.

SECT, v.] STEBBINS V. WALKER. 685

Mj brother is at work in a mild wa\' in the wheat business, but he has
so far seen fit to ship to another part}* from whom he gets the same
rebate as you offer. His initials are the same as ray own, so that if
j'ou choose to correspond with him, the same direction will reach him
as myself.

Thanking you for your efforts in m}- behalf,

1 remain trul}' yours,

O. G. Stebbins.

This letter was understood by defendants to mean that the plaintiff
intended to remain out of business for a time, and that the brother
Osmyn was then in the wheat business in Vermontville, and thereupon
they addressed a letter to Osmyn, soliciting his business. They also
wrote to the plaintifT informing him how they understood his letter, and
th.at thej' had solicited his brother's consignments. To this the plain-
tiff sent no reply, and until November 26th following defendants sup-
posed the dealings with them in the name of O. G. Stebbins hereinafter
mentioned were on behalf of Osm^n G. Stebbins, and had no informa-
tion and no reason to suspect the contrary. These dealings began
after September 17th, on which da}- plaintiff left home for his health
and remained absent until October 24th, leaving his brother Osm3n in
charge of his business. While he was gone Osmj'n shipped to defend-
ants five car-loads of wheat in the name of O. G. Stebbins and for the
olaintiff, but which defendants received, sold, and accounted for, sup-
posing it to be the wheat of Osmyn himself. On these dealings a bal.
ance remained due to the defendants of $74.64. There was also sent
to defendants a car-load of wheat which was placed in the elevator, but
b}' reason of some mistake, owing to a change of bookkeepers, was not
credited to any one. This also belonged to the plaintiff. Earh* in
November defendants also made a purchase of wheat, and also a sale
of it which the}' supposed to be for Osm^n, but which was in realitv on
an order from plaintiff, on which they realized a profit of $307.50, and
which left standing to the credit of O. G. Stebbins on their books
$232.86.

Osmyn G. Stebbins left his brother's employ November 5, 1879.
On November 15th he telegraphed defendants from Jackson in the
name of O. G. Stebbins, asking them to send him $700. Relying upon
his personal credit they sent the money. At the same time he re-
quested them to purchase for O. G. Stebbins 3000 bushels of wheat for
January deliver}'. With this request they also complied.

On November 26th defendant Walker was at Vermontville, when he
for the first time learned that plaintiff had resumed business, and that
all the wheat dealings previous to November 15th had been conducted
by Osmyn as agent, not as principal. Plaintiff told Walker he had no
interest in the purchase of November 15th, but would take it off de-
fendants* hands. This he could then have done at a profit of $150.
Walker declined this offer, but said he would stand upon the purchase

686 STEBBINS V. WALKER. [CHAP. V.

until he could realize $700 profit upon it, and then close it out. The
wheat was afterwards sold, however, without profit. Afterwards plain-
tiff had other dealings with defendants which entitled them to claim
from him $79.75. The car-load, which by mistake was not credited to
any one, was sold by defendants in January following, and realized
$452.79. The defendants claimed they were entitled to appl}' this and
also the $232.86 which was in their hands to the credit of 0. G. Steb-
bins, on November 15, 1879, as part payment of the $700, which
Osmyn G. Stebbins obtained from them on that day. Plaintiff resisted
this claim, and demanded from defendants the proceeds of all the wheat
belonging to him which had been forwarded to and sold by them.

The circuit court gave judgment for the defendants, applying the
$232.86 and $452.79 in accordance with their claim, and permitting
them to recover the balance of $79.25 on subsequent dealings. This
would leave a balance of $14.35 of the $700 still unpaid.

Was this judgment correct? We think it was. Defendants from
August 14th to November 5th had been dealing with Osmyn G. Steb-
bins in the belief that he was principal in the business, induced to that
belief by the letter and subsequent conduct of the plaintifl", and having
no reason to think or suspect the contrary. Plaintiff knew that the
manner in which the business was done and the correspondence con-
ducted, was calculated to lead the defendants to suppose that he had
retired from the business, and Osm3'n had become his successor. When
Osmj'n left his employment, no notice was given to defendants, and to
all appearance the business continued as before. The defendants were
therefore not in fault, and were chargeable with no negligence in assum-
ing that Osmyn still continued to be the principal. He had forwarded
several car loads of wheat to defendants in the name of O. G. Stebbins
prior to November 5th, and received the proceeds in the name of O. G.
Stebbins, and it is conceded that pa^-ment was properl}' made to him,
though the wheat belonged to the plaintiff. Defendants supposed the
wheat belonged to Osmj-n, but it is conceded that if they had known
the plaintiff was owner, the payment to Osmyn would have been a
valid payment, because Osmyn was the plaintiff's agent and doing busi-
ness in the plaintiff's name. But if a payment to Osmyn before
November 5th was good, one after November 5th must have been
equally good. Defendants had no notice of any change in the business,
and in fact there had been none. The same person who had sent wheat
to them, and who they supposed and had a right to suppose was the
principal, requested of them an advance, and they made it. The referee
reports that defendants relied, in making this advance, on the personal
credit of Osmyn ; but their reliance on his credit would not preclude
their rel3-ing also on their lien upon the grain received from him.
Liens on propert}' are commonly accompanied b}' a personal responsi-
bility, and the creditor is entitled to rely upon both.

The case in judgment is a plain case of estoppel. There has been
aegligence from which one of two parties must suffer, and the responsi-

SECT. V.J COOKE V. ESHELBY. 687

bilit}' for this negligence justly and exclusiveh' lies at the door of the
plaintiff. If he were now to collect of defendants the sum they ad-
vanced to his brother while he was acting ostensibly as principal, they
would be defrauded, and the plaintiff's negligence would have furnished
the opportunit}-, and the agent. The loss must therefore fall upon the
plaintiff, though his intentions may have been entirely honest : Vanne-
ter V. Grossman, 42 Mich. 465. Nor has there been any failure here, as
there was in Maxwell v. Bay City Bridge Co., 41 Mich. 453, to find the
facts from which the estoppel springs : they all appear in the referee's
report.

It is claimed that defendants waived the lien on the car load of
wheat remaining in their hands when they were informed of plaintiffs
interest ; but the record shows no express waiver, and no facts from
which it must necessarily be implied. The}- did indeed express a will-
ingness to hold the January wheat until the rise in value should make
good their loss ; but there was no agreement to that effect, and if there
had been, a desire to protect the plaintiff against loss might sufficiently
account for it. They also declined plaintiff's offer to take the January
wheat off their hands, coupled as it evidently was in his mind with
leaving them to lose the $700 advance ; and for this they cannot be
blamed. It was talked over between the parties that defendants should
proceed to sell the car load of wheat then on hand ; but if plaintiff ex-
pected defendants to waive any existing lien, and pav over to him the
proceeds, he neither gave any consideration therefor, nor asked or ob-
tained an}' promise to that effect. The defendants were therefore at
liberty to stand upon their rights as the}' existed at the time they first
learned that the business carried on with them by Osmyn in the name
of O. G. Stebbins was really the business of the plaintiff.

The judgment must be affirmed, with costs.

The other justices concurred.

ISAAC COOKE & SONS v. ESHELBY.
House of Lords. 1887.

[12 App. Cas. 271.]

Appeal from a decision of the Court of Appeal.

In April and June 1883 Livesey Sons & Co., cotton brokers at
Liverpool, sold to Isaac Cooke & Sons, on the Liverpool cotton
market, cotton for future deliveries. Livesey Sons & Co. made these
two contracts in their own names, but were really acting as agents for
Maximos, their undisclosed principal. Before maturit}' of the con-
tracts Livesey Sons & Co. suspended pa3-ment, and under the rules
of the Liverpool Cotton Association, Limited, the contracts were

688 COOKE V. ESHELBY. [CHAP. V.

closed in the form of repurcliases by Livesey Sons & Co. from Isaac
Cooke & Sons. The price of cotton having fallen, the result of this
transaction was that a sum of £680 was due from Isaac Cooke & Sons
to Livese3- Sons & Co. For this sum an action was brought against
Isaac Cooke & Sons by Eshelby as trustee in the liquidation of
Maximos, who had failed.

The defendants by their defence claimed to set off against the plain-
tiff's claim monej' due from Livesey Sous & Co. to the defendants
upon a general account.

In answer to the plaintiff's interrogatories whether in the transac-
tions sued on the defendants did not believe that Livese}' & Co. were
acting as brokers on behalf of principals the defendants said: "We
had no belief on the subject. We dealt with Livese\' & Co. as prin-
cipals, not knowing whether they were acting as brokers on behalf of
principals, or on their own account as the principals."

At the trial at Liverpool in February, 1884, before Baggallay, L. J.,
■without a jury, it was proved that Livese}' & Co. bought and sold both
for principals and on their own account, and that Cooke & Sons knew
this. Baggallay, L. J., held that the defendants were entitled to the
set-off, and gave judgment for them.

The Court of Appeal (Bkett, M. R., Lindley and Bowen, L.JJ.)
reversed this decision, and entered judgment for the plaintiff for the
amount claimed, on the ground that the defendants were not entitled
to the set-off unless the}- had been induced by the conduct of Maximos
the principal to believe, and did in fact believe, that they were dealing
with Livese}' & Co. as the principals.

Against this decision the defendants appealed.

W. R. Kennedy, Q. C, and T. G. Carver for the appellants.

D. French, Q.C., and Synnott, for the respondents, were not heard.

Lord Halsbury, L. C. My Lords, in this case a merchant in
Liverpool effected two sales through his brokers. The brokers effected
the sales in their own names. The appellants, the merchants with
whom these contracts were made, knew the brokers to be brokers, and
that it was their practice to sell in their own names in transactions in
which they were acting only as brokers. The}- also knew that the
brokers were in the habit of buying and selling for themselves. The
appellants with commendable candor admit that the}' are unable to
say that they believed the brokers to be principals ; they knew they
might be either one or the other ; they say that they dealt with the
brokers as principals, but at the same time the}- admit that the}' had
no belief one way or the other whether they were dealing with prin-
cipals or brokers.

It appears to me that the principle upon which this case must be
decided has been so long established that in such a state of facts as I
have recited the legal result cannot be doubtful. The ground upon
which all these cases have been decided is that the agent has been
permitted by the principal to hold himself out as the principal, and that

SECT, v.] COOKE V. ESHELBY. 689

the person dealing with the agent has believed that the agent was the
principal, and has acted on that belief. With reference to both those
propositions, namely, first, the permission of the real principal to the
agent to assume his character, and with reference to tlie fact wliether
those dealing with the supposed principal have in fact acted upon the
belief induced by tlie real principal's conduct, various difficult ques-
tions of fact have from time to time arisen ; but I do not believe that
any doul)t has ever been thrown upon the law as decided by a great
variety of judges for something more than a century. The cases are
all collected in the notes to George v. Clagctt, 2 Sm. L. C. 8th Ed.
118.

In Baring v. Corrie, 2 B. & Aid. 137, 144, 147, in 1818, Lord Ten-
terden had before him a very similar case to that which is now l)efore
your Lordships, and although in that case the court had to infer what
we have here proved by the candid admission of the part}-, the prin-
ciple upon which the case was decided is precisely that which appears
to me to govern the case now before your Lordships. Lord Tenterden
says of the persons who were in that case insisting that they had a
right to treat the brokers as principals : " They knew that Coles & Co.
acted both as brokers and merchants, and if they meant to deal with
them as merchants, and to derive a benefit from so dealing with them,
they ought to have inquired whether in this transaction they acted as
brokers or not; but the}' made no inquir}'." And Bayley, J., saj's :
" When Coles «S; Co. stood at least in an equivocal situation, the
defendants ought in common honesty, if they bought the goods with
a view to cover their own debt, to have asked in what character
the}- sold the goods in question. I therefore cannot think that the
defendants believed, when they bought the goods, that Coles & Co.
sold them on their own account. And if so, they can have no defence
to the present action."

I am therefore of opinion that the judgment of the Court of Appeal
was right. The selling in his own name by a broker is only one fact,
and by no means a conclusive fact, from w-hich, in the absence of other
circumstances, it might be inferred that he was selling his own goods.
Upon the facts proved or admitted in this case the fact of selling in
the broker's name was neither calculated to induce nor did in fact
induce that belief.

I now move your Lordships to affirm the judgment of the Court of
Appeal and to dismiss this appeal with costs.

Lord Watson.^ The only facts which have a material bearing upon
the appellants' defence are these. According to the practice of the
Liverpool cotton market with which the appellants were familiar,
brokers in the position of Livesey Sons & Co. buy and sell both for
themselves and for principals ; and in the latter case they transact,
sometimes in their own name without disclosing their agency, and at

* After stating the case. — Ed.
44

690 COOKE V. ESHELBY. [CHAP. T.

other times in the name of their principal. In their answer to an
interrogation by the plaintiff touching their belief that Livesey Sons &
Co. were acting on behalf of principals in the two transactions in ques-
tion, the appellants say : " We had no belief upon the subject. We
dealt with Livesey Sons & Co. as principals, not knowing whether
they were acting as brokers on behalf of principals or on their own
account as the principals."

That is a very candid statement, but I do not think any other
answer could have been honestlj' made b}' persons who, at the time of
the transactions, were cognizant of the practice followed by members
of the Liverpool Cotton Association. A sale bv a broker in his own
name to persons having that knowledge, does not conve}- to them an
assurance that he is selling on his own account ; on the contrary it is
equivalent to an express intimation that the cotton is either his own
property or the property of a principal who has employed him as an
agent to sell. A purchaser who is content to buy on these terms
cannot, when the real principal comes forward, allege that the broker
sold the cotton as his own. If the intending purchaser desires to deal
with the broker as a principal and not as an agent in order to secure
a right to set-off, he is put upon his inquiry. Should the broker refuse
to state whether he is acting for himself or for a principal, the buj'er
may decline to enter into the transaction. If he chooses to purchase
without inquiry, or notwithstanding the broker's refusal to give infor-
mation, he does so with notice that there may be a principal for whom
the broker is acting as agent ; and should that ultimately prove to be the
fact, he has, in m}- opinion, no right to set off his indebtedness to the
principal against debts owing to him by the agent.

It was argued for the appellants, that in all cases where a broker,
having authority to that effect, sells in his own name for an undis-
closed principal, the purchaser, at the time when the principal is dis-
closed, is entitled to be placed in the same position as if the agent had
contracted on his own account. That was said to be the rule estab-
lished by George v. Clagett, Sims v. Bond, 5 B. & Ad. 389, and sub-
sequent cases. It is clear that Livesey Sons & Co. were not mere
brokers or middlemen, but were agents within the meaning of these
authorities, and if the argument of the appellants were well founded
they would be entitled to prevail in this ap])eal, because in that case
their right of set-off had arisen before the 20th of July, 1883, when
they first had notice that Maximos was the principal.

I do not think it necessary to enter into a minute examination of
the authorities, which were fully discussed in the arguments addressed
to us. The case of George v. Clagett has been commented upon
and its principles explained in many subsequent decisions, and notably
in Baring v. Corrie, Semenza v. Brinsley, 18 C. B. n. s. 467, and
Borries v. Imperial Ottoman Bank, Law Rep. 9 C. P. 38. These deci-
sions appear to me to establish conclusive!}' that, in order to sustain
the defence pleaded by the appellants, it is not enough to show that

SECT. V.J COOKE V. ESHELBY. 691

the agent sold in his own name. It must be shown that he sold
the goods as his own, or, in other words, that the circumstances at-
tending the sale were calculated to induce, and did induce, in the
mind of the purcluiser a reasonable belief that the agent was selling
on his own account and not for an undisclosed principal ; and it must
also be shown that the agent was enabled to appear as the real con-
tracting party by the conduct, or by the authortty, express or implied,
of the principal. The rule thus explained is intelligible and just ;
and I agree with Bowen, L. J., that it rests upon the doctrine of
estoppel. It would be inconsistent with fair dealing that a latent
principal should by his own act or omission lead a purchaser to rel}'
upon a right of set-off against the agent as the real seller, and should
nevertheless be permitted to intervene and deprive the purchaser of
that right at the very time when it had become necessary for his
protection,

1 therefore agree with the conclusion of the learned judges of the
Court of Appeal, and with the reasoning upon which it is founded.
A broker who effects a sale in his own name with an intimation,
express or implied, that he is possibly selling as an agent, does not
sell the goods as his own, and in such a case the purchaser has no
reasonable grounds for believing that the agent is the real part^' with
whom he has contracted.

Lord FitzGerald.^ I concur with ray noble and learned friend in
adopting at once the decision and the reasons of the Court of Appeal.
I have, however, some hesitation in accepting the view that the deci-
sions rest on the doctrine of estoppel. Estoppel m pais involves
considerations not necessarily applicable to the case before us. There
is some danger in professing to state the principle on which a line of
decisions rests, and it seems to me to be sufficient to say in the present
case that Maximos did not in any wa^^ wilfully or otherwise mislead
the defendants (Cooke & Sons) or induce them to believe that Livesej'
& Co. were the owners of the goods or authorized to sell them as their
own, or practice any imposition on them. The defendants were not
in any way misled.

Order appealed from affirmed ; and appeal dismissed with costs.^

^ After discussing the facts. — Ed.

2 Arc: Miller v. Lea, 35 Md. 396 (1872), where, at pp. 406-407, Alvet, J., said:
" The buyer must be cautious, and not act regardless of the rights of the principal,
though undisclosed, if he has any reasonable grounds to believe that the party with
whom he deals is but an agent. Hence, if the character of the seller is equivocal, if
he is known to be in the liabit of selling sometimes as principal and sometimes as
agent, a purchaser who buys witli a view of covering his own debts and availing him-
self of a set-off is bound to inquire in what character he acts in the particular trans-
action ; and if the buyer chooses to make no inquiry, and it should turn out that he
has bought of an undisclosed principal, he will be denied the benefit of his set-off." —
Ed.

692 HEALD V. KENWORTHY. [CHAP. V

SECTION V. {continued).
iB) In an Action brought by the Third Party against the Principal.

NELSON V. POWELL.
King's Bench. 1784.

[3 Doug.4]0.]

This was an action of assumpsit for goods sold and delivered, tried
at Exeter before Mr. Baron Hotham. The facts at the trial appeared
to be these : The defendant, b}' one Thomas his broker, bought
goods of the plaintiff. The invoices were made out in the broker's
name for goods delivered to him, and were all paid for except a bal-
ance, for which the plaintiff pressed Thomas, who had not declared his
principal. One of the plaintiff's letters to Thomas was sent by him to
the defendant, who, having remitted to Thomas sufficient to paj* the
plaintiff, wrote to the latter and informed him of that fact. After this
the plaintiff again called on Thomas to pay the monej- as due from
him ; but this not being done, the plaintiff brought the present action.
The jury having found a verdict for the plaintiff,

Lavrence now moved for a new trial, on the ground that the credit
had been given to Thomas, and that he alone was liable ; but

Lord Mansfield held the principal liable whenever he was known,
and The rule xoas refused.^

HEALD AND OTHERS V. KENWORTHY.

Exchequer. 1855.
[10 Exch. 739.]

The declaration was for goods sold and delivered.

Plea. That the selling and delivering in the declaration mentioned
was, and consisted in, the sales and deliveries hereinafter in this plea
mentioned, and not otherwise ; and that the sales and deliveries of the
said goods to the defendant, and the purchases by the defendant from
the plaintiffs, were made by the agency, on behalf of the defendant, of
W. V. Taj'lor, and not otherwise ; and the said purchases, and the ac-
ceptance from the plaintiffs of the said goods, were made by, and the

^ See Raymond f. Crown & Eagle Mills, 2 Met. 319 (1841). — Ed.

SECT, v.] HEALD V. KENWORTHY. 693

said sales and deliveries by the pluiiilifi's were made to, the said Ta} lor
in his own name and not in the name of the defendant ; and that the
plaintiffs at the time of, and in and about the said sales and deliveries,
gave credit to the said Taj-lor as buyer of the said goods, and in respect
of the prices thereof, and in all respects treated him as a principal, and
continued so to credit him and to treat him until after the defendant
had made the payments to the said Taylor, and settled with and satis-
fied him as hereinafter is mentioned ; and the plaintiffs did not at any
time, until after the defendant had so made the payments to and set-
tled with and satisfied the said Taylor as aforesaid, give credit to the
defendant in respect of any of the said sales or prices, or in any way
treat the defendant as buyer of the said goods or any part thereof, or
as in any way responsible to the plaintiffs, or make any claim or de-
mand on him in respect of any of the said sales or prices ; and that
after the said sales respectively, and before the defendant knew or had
notice or reason to believe that the said Taylor was or would be unable
to pay, or that he would not pay the vendors of the said goods the
prices thereof in full, according to the terms of the said sales, and
when (on the contrary) the defendant had reason to believe, and did
believe, that the said Taylor would duly settle with the vendors ac-
cording to the said terms, he the defendant bona fide settled w'ith the
said Taylor in respect of the said purchases and prices, and bona fide
paid the said Taylor, on account of the said goods and the purchases
and prices thereof, moneys sufficient, and more than sufficient to pay
and satisfy the said prices and all claims of the said Taylor in respect
of the said purchases and prices, and being sufficient and more than
sufficient to pay and satisfy all claims of the plaintiffs in respect
of the said goods and the said prices ; and the said Taylor then
became, and was, satisfied in respect of the said goods and prices, and
of all claims on account thereof, and then became indebted to the de-
fendant, and hath at all times continued and still is so indebted to the
defendant ; and the defendant hath not since the said settlement been
indebted to the said Taylor ; that the said payments to the said Taylor
were made by the defendant before commencement of this suit, and
were made by the defendant at reasonable and proper times, and ac-
cording to the usual course of dealing between the defendant and the
said Taylor, and according to the usual and proper course of business,
and not unduly early ; and the said times were times which, before and
when the defendant made the said payments, were represented by the
said Taylor to the defendant to be, and which the defendant before
and when he made the said payments had reason to believe and did be-
lieve to be, necessary and proper times of payments of the said sums,
and necessary and proper, in order to put the said Taylor in funds,
and enable him to pay and satisfy the vendors according to the terms
of the said sales ; and that before he knew or had notice that the
plaintiffs had been the vendors, or that the vendors were not paid
according to the terms of the said sales, he the defendant had reason

69-4 HEALD V. KENWOKTHY. [CIIAP. V.

to believe, and did believe, that the persons wlio had sold tlie said
goods to the said Taylor as aforesaid had been paid ; and that the
defendant did not know, nor had notice until after he had made the
payments to and settled with and satisfied the said Taylor as aforesaid,
nor until after the defendant had received the said goods from the said
Taylor, that the plaintiffs had become or were vendors of the said goods,
or an}' of them, or that they made or had any claim in respect of any
of the said goods, or of the prices thereof, nor did the defendant know,
nor had he notice until after the said payments to and the settlement
with and satisfaction of the said Taylor, what were the terms as to
times or modes of payment on which the said Taylor had bought the
said goods, or an^- of them ; and the defendant says that, according to
the terms of the said sales by the plaintiffs, the said prices were pay-
able to the plaintiffs before the time when the defendant first had notice
of any claim or right of the plaintiffs in respect of any of the said goods
or prices.

Dem.urrer and joinder.

The case came on for argument in last Michaelmas Term (November
13), when the court, inclining to the opinion that the plea was ambig-
uous, and might perhaps afford a defence, as amounting to the general
issue, and the parties being desirous that it should raise the substantial
question, the case was ordered to stand over for the purpose of amend-
ing the plea. Certain alterations were now made in the plea b}' the
court, to admit that a debt had been created between the plaintiffs
and the defendant.

Cleashy in support of the demurrer. It being agreed that the plea
shall not be taken to amount to the general issue, it affords no defence
to this claim by the seller of the goods against the principal. The
simple fact, that a principal has bona fide provided his agent with
money for the payment of a debt, which monej' is not paid b}- the
agent to the creditor, does not discharge the principal. [Alderson,
B. Credit was not given to the agent by the plaintiffs. Parke, B.
The plaintiffs' argument is, that the simple fact of the agent having
received the money is no answer to the claim. The defendant was
bound to see that the plaintiffs were duly paid. This case does not
fall within the principle that the debtor cannot be sued where he
has been misled by the creditor to make the payment. The dicta of
learned judges are to be regarded in this light. Thus in Kymer v.
Suwercropp, 1 Camp. 110, Lord Ellenborough, C. J., says: " If he,"
that is the seller of the goods, "lets the day of payment go by, he
may lead the principal into a supposition that he relies solely on the
broker ; and if in that case the price of the goods has been paid to the
broker on account of this deception, the principal shall be discharged."
Smyth r. Anderson, 7 C. B. 21, and Wyatt r. Marquess of Hertford,
3 East. 147, contain diita which may be explained in the same way.
In such a case it would be unjust to allow the seller to recover against
the principal.] If the plaintiffs had by their conduct altered the state

SECT, v.] HEALD V. KENWOKTHY. 695

of accounts between the defendant and hi.s agent, the case would have
fallen within the same principle. He was then stopped by the court.

Asjjlmid contra. The plea alleges that the goods were delivered to
the agent, and that when the payment was made b}- the defendant to
him he had reason to believe, and did believe, that the agent would pay
the plaintiffs, and that payment so made to the agent was not unduly
earl\-. It has been assumed on the part of the plaintiffs that the rule
under which the principal wlien discovered is liable to the seller is an
unlimited one. But the application of that rule depends on the partic-
cular facts of the case ; for instance, a foreign principal is not liable.
[Pahki:, B. The question of his liability is one of fact. Where the
seller deals with an agent resident in this countr}', and acting for a
foreign principal, the presumption is, that the seller does not contract
with the foreigner and trust him, but with the party with whom he
makes the bargain. That is a question of fact, and not of law.
Martin, B. Here the defendant authorized his agent to pledge his
credit. The case differs from that where a servant is sent with the
money in his hand to make a purchase, for there the master gives no
authority to his servant to pledge his credit. Parke, B. A debt has
been created In- the defendant's authority. He is bound to see that it
is paid. What, then, is there in the plea which precludes the plaintiffs
from recovering their debt?] There is no authority precisely in point,
although the reports contain several dicta which are in the defendant's
favor. In Paterson v. Gandasequi, 15 East, 62, Lord EUenborough,
C. J., said, " The case in which I remember that the liability of a
principal was carried furthest was Powel v. Nelson upon the Western
Circuit, of which Mr. Justice Lawrence had a manuscript note.
There, a factor made purchases for his principal, who made pa3'ments
for him on account. Afterwards the factor was pressed for payment
by a letter which came to the hands of the principal, who transmitted
it to tlie factor, and with a knowledge of the fact paid him the residue.
It was held b}' Lord Mansfield, C. J., that the principal was liable
over to the sellers for the money he had so paid to his factor after
notice." In Smyth v. Anderson, 7 C. B. 21, INIaule, J., in delivering
the judgment of the court, cites the dictum of Bayley, J., to be found
in Thomson v. Davenport, 9 B. & C. 78, that "it is said that the
seller ought to have asked the name of the principal, and charged him
with the price of the goods. B}' omitting to do so, he might have lost
his right to claim payment from the principal, had the latter paid the
agent, or had the state of the accounts between the principal and the
agent been such as to make it unjust that the former should be called
upon to make the payment." [Parke, B. Something, however, must
occur to make it unjust to call upon the principal for payment ; where,
for instance, the seller tells the principal that he will look to the agent
for payment, and the principal pays the agent, it would be unjust to
hold the principal liable, in case of non-payment b}' the agent.] Wilde,
C. J., in Smyth r. Anderson, makes the following observations on

696 HEALD V. KENWOKTHY. [cHAP. V.

Kymer v. Suwercropp ; after stating the marginal note and facts of
that case, his Lordship says, " The objection, however, was not that
the money was paid before it was due, but that it never was paid at
all according to the contract. The case therefore does not involve the
principle in support of which it has so frequently been cited."

Cleasby was not called upon to reply.

Pollock, C. 15. I am of opinion that tlie plea is bad. It comes
shortly to this. A person employs his agent to purchase goods for
him, with authority to pledge his credit. The agent does so, and thus
creates a debt ; and 1 agree with the remark made by my Brother
Parke, that all the cases in which the principal has been held to be
discharged, are cases in which the seller has enabled the agent to mis-
represent, or where the agent by some conduct adopted by the seller
has placed his principal in a worse situation than that he ought to be
in. This plea contains nothing of that sort. It merely states that the
plaintiffs treated Taylor as the principal, and that the defendant bona
fide settled with him.

Parke, B. I am of the same opinion. The plea simply states, that,
after the contract was entered into between the plaintiffs and a third
party, the agent of the defendant, under circumstances which rendered
the defendant liable upon it, the latter paid the agent. I am of opinion
that this is no defence to the action. It is clear, that, if a person
orders an agent to make a purchase for him, he is bound to see that
the agent pays the debt ; and the giving the agent money for that pur-
pose does not amount to payment, unless the agent pays it accordingly.
But there are no doubt cases and dicta^ which, unless they be under-
stood with some qualification, afford ground for the position taken by
the counsel for the defendant. First, there is the dictum of Baylej-,
J., in Thomson v. Davenport, where that learned judge lays down the
rule, that " if the agent does make himself personall}- liable, it does
not follow that the principal ma}' not be liable also, subject to this
qualification, that the principal shall not be prejudiced by being made
personally liable, if the justice of the case is that he should not be per-
sonally liable." And he then proceeds to say, " If the principal has
paid the agent, or if the state of accounts between the agent here and
the principal would make it unjust that the seller should call on the
principal, the fact of payment or such a state of accounts would be an
answer to an action brought b}' the seller, where he had looked to the
responsibility of the agent." The expression, " make it unjust," is
very vague ; but if rightly understood, what the learned judge said is,
no doubt, true. If the conduct of the seller would make it unjust for
him to call upon the buyer for the money ; as, for example, where the
principal is induced by the conduct of the seller to pa}' his agent the
money on the faith that the agent and seller have come to a settlement
on the matter, or if any representation to that effect is made by the
seller either by words or conduct, the seller cannot afterwards throw
off the mask and sue the principal. It would be unjust for him to do so.

SECT, v.] HEALD V. KENWORTHY. 697

But I think that there is no case of this kind where tlie plaintiff has
been precluded from recovering, unless he has in some way contributed
either to deceive the defendant or to induce him to alter his position.
This was the ground of the decision in Wyatt v. The Marquis of Hert-
ford, where the seller took the security of the agent unknown to the
principal, and gave the agent a receipt as for the money due from the
principal, in consequence of which the principal dealt differently with
his agent on the faith of such receipt, and it was properly held that
the seller could not sue the principal. 80 in the case put by Lord Ellen-
borough, C. J., in Kymer v. Suwercropp, the observations of that
learned judge are perfectly correct ; for the fact of the seller's allowing
the time for payment to elapse might afford evidence of deceit on his
part, and of his having thereby induced the principal to pay the agent.
Neither does tlie case of Smyth v. Anderson, nor the elaborate judg-
ment of my Brother Maule, contain anything at variance with the
principle I have stated. He adopts the proposition expounded by
Bay ley, J., that the seller cannot recover against the principal, if it
be unfair for him to do so. In Smyth c. Anderson, which contains a
good illustration of this principle, the agent purchased goods on ac-
count of his principal, who resided abroad ; but at the time of the pur-
chase, although he did not inform the seller who his principal was, the
invoice stated that the goods " were brought on account of B." the
principal. The seller drew certain bills of exchange on the agent,
who became insolvent before the bills arrived at maturity'. The prin-
cipal, after having received advice of the purchaser, and of the accept-
ance of the bills In* the agent, made large remittances on account of
the goods to the agent, who at the time of his stoppage was largely
indebted to his principal. JNIy Brother Maule sa3-s, the court were of
opinion that under such circumstances it was unfair and unjust to
allow the seller to receive the value of the goods from the principal.
I think that there is no authority for saying that a payment made to
the agent, as in this case, precludes the seller from recovering from the
principal, unless it appears that he has induced the principal to believe
that a settlement has been made with the agent. There is no aver-
ment of that kind here, and consequently the plaintiffs are entitled to
recover.

Alderson, B. I am of the same opinion. It is clear that the de-
fendant, who is the principal in the transaction, authorized the agent
to contract the debt on his account ; the defendant afterwards paid his
agent mone}', which, however, he did not pay over to the plaintiffs.
Now tlie defendant i? not excused from seeing that the plaintiffs are
paid, unless the latter by their acts induced the defendant to make the
payment to their agent. AY here the seller trusts the agent only, and
says that he will consider him as tlie only party liable, the agent alone
is responsible, and the seller cannot proceed against the principal.
But there must be some act on the part of the creditor to warrant us
in saying that the paj'ment by the debtor to his agent is to be treated

698 PRIESTLY V. FEKNIE. [CHAP. V.

as a payment to the creditor. Where a creditor b^- his conduct in-
duces the debtor to pa}- a third party, and thereby alters his debtor's
position, it would be unjust to call upon the debtor to pay the amount
of the debt to the creditor. But there is nothing of that sort in this
case, and consequently the defendant is not discharged.

Judgment for the plaintiffs.^

PRIESTLY V. FERNIE and another.

Exchequer. 1865.

[3 H. cj- (7. 977.]

Declaration by the plaintiff as secretary of the Melbourne Gas
Company-. For that Daniel Kavanagb, master of the vessel called
" The Queen of Commerce," for a voyage of the said vessel from the
port of Liverpool to Hobson's Bay, Port Phillip, signed the following
bill of lading : —

" Shipped in good order and condition, except chips and sand-cracks,
by Edmund Thompson, &c., agent for Harper and Moore, in or upon
the good ship or vessel called ' The Queen of Commerce,' whereof
Kavanagh is master for this present voyage, and now lying in the port
of Liverpool and bound to Hobson's Ba}', Port Phillip, 264 retorts,
being marked and numbered and enumerated as per margin, and are
to be delivered in the like order and condition, except chips and sand-
cracks, or breakage arising from any cause save improper stowage,
and, subject to the undermentioned clauses, from the ship's tackle at
Hobson's Bay or railway pier (all and every the dangers and accidents
of the seas, fire and navigation of whatsoever nature or kind excepted),
unto the Melbourne Gas Company, or their assigns, freight for the said
goods being payable in Melbourne as per margin, with primage and
average accustomed. In witness whereof the master of the said ship
or vessel hath affirmed to three bills of lading, all of this tenor and
date, one of which bills being accomplished the rest to stand void."
(Then followed other provisions, not material to the present question).
Averments : That the said Company, by their agents in that behalf,
shipped and delivered such goods as are specified in the said bill of
lading to the defendants, and the}' accepted and received of and from
the said Company the same on board the said vessel in such order and
condition as are mentioned in the said bill of lading, to be by the de-
fendants conveyed in the said vessel to such place and for such purpose,
and subject to such terms and conditions as are in the said bill stated
and contained ; and the said vessel completed the said voyage, and

' Martin, B., had left the court during the argument. — Rep.
See Macfarlane v. Giannacopulo, 3 H, & N. 860 (1858); Smethurst v. Mitchell,
1 E- & E. 622 (1859).— Ed.

SKCT. v.] PKIESTLY V. FERNIE. 699

everything has been done and happened and all times elapsed requisite
to enable the said Compan}' to have all the said terms observed and
performed, and the said goods delivered to the said Company at the
place in the said bill of lading specified in that behalf, and in the order
and condition contracted for, and to entitle the plaintiff suing as afore-
said to recover in this action in respect of the matters in this count
stated. — Breach : That the defendants, although not i)revented by the
said excepted dangers, accidents, causes, matters or things, or an}" of
them, failed to deliver the said goods to the said Company- in the order
and condition contracted for, &c.

Plea. That the plaintiff as such secretary as in the declaration al-
leged, and on behalf of the said Company, heretofore, in the Supreme
Court of Melbourne, in the colony of Victoria, then having jurisdiction
in that behalf, impleaded the said Daniel Kavanagh in the declaration
mentioned, as and being the master of the said ship, and signing the
said bill of lading, for the same identical causes of action as in the
declaration alleged, and such proceedings were thereupon had in
the said court that the plaintiff as such secretarj' recovered against the
said Daniel Kavanagh £140 3s. for the said cause of action, and his
costs of suit in tliat behalf; and afterwards the plaintiff, as such secre-
tar}- as aforesaid and on behalf of the said Company, in the Court of
Exchequer of Pleas, Westminster, impleaded the said Daniel Kavanagh
for and in respect of and upon the said judgment so recovered as afore-
said, and such proceedings were thereupon had in that action that the
plaintiff afterwards, b}" the judgment of the said last mentioned court,
recovered against the said Daniel Kavanagh ^288 lOs. lOd. and his
costs of suit in that behalf, and after the recover}' of the said last men-
tioned judgment, the plaintiff for having satisfaction thereof, caused to
be dul}' issued out of the said Court of Exchequer of Pleas a writ of
ca. sa. upon the said judgment, and by virtue of which said writ the
said Daniel Kavanagh was before this suit dulj- taken in execution at
the suit of the plaintiff, and was kept and detained in custod}" to satisfy
the plaintiff in the said action ; and the defendants say that the}' are
being sued in this action in respect of the said Daniel Kavanagh having
signed the said bill of lading as master of the said ship on behalf of the
defendants as owners thereof, and that they are not otherwise liable in
this action.

Replication. That the said Daniel Kavanagh, being a prisoner
under the said writ, became bankrupt within the meaning of the
statutes in force concerning bankrupts, and thereupon was discharged
from custodv under the said writ of ca. sa., without the consent of the
plaintiff, by act of law under and by virtue of the statutes then in force
relating to bankrupts ; and that such proceedings were had in the mat-
ter of the said bankruptcy that the said Daniel Kavanagh afterwards
and before this suit duly obtained an order of discharge under the said
statutes, and was thereby discharged of and from the said judgments,
and each of them ; and the said judgments are and each of them is

700 PRIESTLY V. FERNIE. [CHAP. V.

wholly unsatisfied, and the plaintiff had not at any time before the re-
covery of the said judgment in the said Court of Exchequer, or before
the said Daniel Kavanagh obtained his order of discharge as aforesaid,
notice or knowledge that the said bill of lading and contract was made
b^- the defendants or any of them.

The plaintiff also demurred to the plea.

Rejoinder. That, after the said Daniel Kavanagh became and was
bankrupt as in the said replication mentioned, and before the com-
mencement of this suit, the plaintiff was admitted to prove, and proved,
in respect of the said judgment so recovered in the said Court of
Exchequer as aforesaid, against the estate of the said Daniel Kava-
nagh, under the said bankruptc}^ for the amount due upon the said
judgment.

The defendant also demurred to the replication.

Qua in, agreed for the plaintiff.

B. G. Williams (Aspinull with him) in support of the plea.

Cur. adv. vult.
The judgment of the court was now delivered by
Bramwell, B. We are of opinion our judgment should be for the
defendant. If this were an ordinary- case of principal and agent, where
the agent, having made a contract in his own name, has been sued on
it to judgment, there can be no doubt that no second action would be
maintainable against the principal. The very expression that where a
contract is so made the contractee has an election to sue agent or prin-
cipal, supposes he can only sue one -of them, that is to say, sue to
judgment. For it may be that an action against one might be discon-
tinued and fresh proceedings be well taken against the other. Further,
there is abundance of authority to show that where the situation of the
principal is altered by dealings with the agent as principal, the former
is no longer subject to an action. But this is the case here. The de-
fendants may or may not be liable to indemnify the master in respect
of his costs or his imprisonment. But they are clearly liable to him or
his estate, in respect of the damages recovered against him, and pro-
ceedings might have been taken against them as soon as judgment was
recovered against the master, and before any payment by or execution
against him. They are now therefore under a liability to the master or
his estate to the extent of the whole claim, and yet it is sought to
bring them under a fresli liability for that to the plaintiffs.

If this, then, were the ordinary case we have mentioned, there could
be no doubt on the subject. But it is said that the liability of the mas-
ter of a vessel acting for his owners and their liability where he acts
for them is different from the liabihties in ordinary cases of principal
and agent, and that first one and then the other may be sued. The
plaintiff's argument, then, viz., that the present case is anomalous, is
exceptional. When that is contended for strong reason ought to be
given for it. What is given here ? It is certain tliat the master's lia-
liility is founded on the same considerations as that of an ordinary

SECT, v.] PEIESTLY V. FERNIE. 701

ageut, viz., he makes the contract in his own name. Rich v. Coe, 2
Cowp. 636, Story on Agency, § 296. But it is said that for purposes
of commerce it is convenient both master and owner should be suable.
So it is, but why to the extent contended for more than in an\- other
case of principal and agent? It might be hard to make a person who
deals with the master run after the owner to sue him ; but why, if he
sues the master, should he afterwards sue the owner merely because it
IS very right he should be able to sue the captain or owner? In reality
no reason can be given for the distinction attempted between this and
other cases of principal and agent. It is not said none could be given
why in all cases of principal and agent both should be suable, but that
there is no particular reason applicable to the masters and captains of
ships.

The case, then, must rest, not on principle, but on authority, and
that authority is limited to a passage in Storj' on Agency. It is re-
markable that he is of opinion that there was, b}' the Roman law, an
option to sue either, but not both. If so, what he lays down is i)eculiar
to " our law," and doubly anomalous. He gives no reason for it, but
cites 2 Livermore on Agency, 267. He (Story) says the second action
ma}- be maintained, unless " in the first action he has obtained com-
plete satisfaction of his claim." On reference, however, to Livermore,
we say it with great respect, he really says nothing in support of such
a proposition. What he says is : " Masters of merchant vessels are
personally answerable upon the contracts made b}- them in relation to
the employment of the ship, to repairs, or to supplies furnished for the
ship's use. For the law gives to the merchant who contracts with the
master a twofold remcd}- against the owner and against the master."
For this he cites Rich y. Coe, 2 Cowp. 636, which, though a very ques-
tionable decision, justifies Livermore's propositions, but not Stor^-'s.
It only decides that the owners are liable upon an order by the master
for necessaries, though without their authority. It is true Lord Mans-
field says the master, the owner and the ship are trusted, but he sa^-s
nothing to support what is contended for. It is remarkable Story does
not cite this authority so cited by Livermore. Melius est petere foyites
quam sectari rivulos.

Then really there is no authority for this contention, while there is
much the other way in the silence of all other writers on the subject.
It is not suggested in Abbott on Shipping, p. 91, nor in Kent's Com-
mentaries (see 3 Kent, 161), nor in Maude and Pollock on Shipping,
p. 102, nor in Maclachan, p. 128, nor in Parsons on Maritime Law,
vol. 1, p. 378. Thei'e is one powerful consideration the other wa}', viz.,
if the master contracts under seal no action lies on the contract against
the owners. Why? If the master makes two contracts, one for him-
self and one for his owners, wh}' should his contract, being under seal,
prevent the owners being sued on that which the master has made for
them? Nothing. But if he makes one contract only, as in ordinary
cases where the agent contracts in his own name, which the merchant

702 KINGSLEY V. DAVIS. [CIIAP. V.

maj- say binds him because made in his name, or binds his owners
because made for tliem, then the decisions are iuteUigible and the ex-
pression is correct, the owners are not hable l)ecause of a technical
rule, that a contract under seal cannot bind a person not executing, and
not giving authority under seal for its making. See Abbott on Shipping,
ed. 1856, p. 169. Leslie v. Wilson, 3 B. & B. 171, is not opposed to
this. Therefore we give judgment for the defendant.

Judgment for the defetidant.^

KINGSLEY AND ANOTHER V. CHARLOTTE DAVIS.
Supreme Judicial Court op Massachusetts. 1870.

[104 Muss. 178.]

Contract b}- brokers for commissions; submitted to the judgment of
the court on these agreed facts : —

"The plaintiffs on November 12, 1868, procured a purchaser for a
house belonging to the defendant, who is, and was at that time, a mar-
ried woman, and held the legal estate in said house in her own right.
Previously, John J. Davis, her husband, in his own behalf, and also
acting for her and in her presence, requested the plaintiffs to find a
purchaser for the house ; and in the conversation between the parties,
at that time, the defendant also requested the plaintiffs to find a pur-

1 In Kendall v. Hamilton, 4 App. Cas. 504, 514-515 (H. L. 1879), Lord Cairns
said : " Now, I take it to be clear that, where an agent contracts in his own name for
an nndisclosed principal, the per.son with whom he contracts may sue the agent, or he
may sue the principal ; but if he sues the agent and recovers judgment, lie cannot
afterwards sue the princijjal, even although the judgment does not result in satisfac-
tion of the debt. If any autho ity for this proposition is needed, the case of Priestly
11. Fernie may be mentioned. But the reasons why this must be the case are, I think,
obvious. It would be clearly contrary to every principle of justice that the creditor
who had seen and known and dealt with and given credit to the agent, should be
driven to sue the principal if he does not wish to sue him, and, on the other hand, it
would be equally contrary to justice that the creditor on discovering the principal, who
really has had the benefit of the loan, should be prevented suing him if he wishes to
do so. But it would be no less contrary to justice that the creditor should be able to
sue first the agent and then the principal, when there was no contract, and when it
was never the intention of any of the parties that he should do so. Again, if an action
•were brought and judgment recovered against the agent, he,.the agent, would have a
right of action for indemnity against the principal, while, if the principal were liable
also to be sued, he would be vexed with a double action. Farther than this, if actions
could be brought and judgments recovered, fir.st against the agent and afterwards
against the principal, you would have two judgments in existence for the same debt or
cau.se of action ; they might not necessarily be for the same amounts, and there might
be recoveries had, or liens and charges created, by means of both, and there would be
no mode, upon the face of the judgments, or by any means short of a fresh proceed-
ing, of showing that the two judgments were really for the same debt or cause of

action, and that sati.sfaction of one was, or would be, satisfaction of both."

With the principal case compare Maple v. Railroad Company, 40 Ohio St. 313

(188.3).— Ed.

SECT, v.] KINGSLEY V. DAVIS. 703

chaser. On November 20, 1868, the defendant executed a deed of the
house to the purchaser procured b\' the plaintifTs, her husband joining
therein. The plaintiffs, at the time they performed said services, sup-
posed that the legal title to the house was in John J. Davis ; and the}'
charged him therefor on their books of account. On December 14, 1868,
they commenced an action of contract against him in tlie municipal
court for the city of Boston, in which the}' declared for the same cause
of action for which they bring the present action. In said action, on
December 29, he was defaulted ; and on March 18, 1869, the plaintiffs,
since said default, being informed of all the facts, and in particular of
the fact that the house belonged to the present defendant at the time
they procured the purchaser, caused judgment to be entered against
said John J. Davis in said action, and subsequently took out execution
against him. Said judgment now remains in force, and unsatisfied.
After taking said judgment and execution, the plaintiffs brought the
present action.''

G. Morrill, for the plaintiffs.

J. Latlirop, for the defendant.

MoRTOx, J. We are unable to see how, in any aspect of the facts of
this case, the plaintiffs can recover. There is no evidence that the
plaintiffs performed the services sued for upon the credit of the defend-
ant, or that she entered into a several contract with them. The facts
stated, if thej- show an}* contract by the defendant, show a joint con-
tract b}' herself and her husband. Upon such a contract the plaintiffs
could not maintain this action. The judgment which he has taken
against one of the joint debtors is a bar to any future action against the
other. Ward v. Johnson, 13 Mass. 148. Gibbs v. Bryant, 1 Pick. 118.

But the true inference to be drawn from the facts stated undoubtedly
is, that the plaintiffs contracted with, and gave credit to, John .J. Davis ;
and they now claim that he was acting as the agent of the defendant
and that the}- gave him credit in ignorance of this fact. If we assume
that he was acting as her agent in contracting with the plaintiffs, 3'et
there is an insuperable obstacle to their right to maintain this action.
The general principle is undisputed, that, when a person contracts with
another who is in fact an agent of an undisclosed principal, he may,
upon discover}' of the principal, resort to him, or to the agent with
whom he dealt, at his election. But if, after having come to a knowl-
edge of all the facts, he elects to hold the agent, he cannot afterwards
resort to the principal. In the case at bar, it is admitted that the
plaintiffs, after all the facts became known to them, obtained a judg-
ment against John J. Davis upon the same cause of action for which
this suit is brought. We are of opinion that this was conclusive evi-
dence of an election to resort to the agent, to whom the credit was
originally given, and is a bar to this action against the principal.
Kaymond v. Crown & Eagle Mills, 2 Met. 319.

Judgment for the defendant}

^ Compare Beynier v. Bonsall, 79 Pa. 298 (1875). — Ed.

704 ARMSTRONG V. STOKES. [CHAP. T

ARMSTRONG v. STOKES and others.

Queen's Bench. 1872.

[L. R. 7 Q. B. 598.]

Declaration for goods sold and delivered, goods bargained and
sold, work and labor, and on accounts stated.

Pleas: 1. Never indebted; 2. Payment; 3. As to the sale of the
goods, a special plea.

Issues joined on all the pleas ; demurrer to third plea, and joinder.

At the trial of the issues of fact before Mellor, J., at the Man-
chester Spring Assizes, 1871, a verdict passed for the plaintiff, with
leave to move to enter a verdict for the defendants, the court to have
power to draw inferences of fact.

A rule was obtained accordingl}', on the ground that there was no
evidence of a contract between the plaintiff and the defendants ; and
also on the ground that, under the circumstances, the plaintiff had no
right to come upon the defendants for payment.

Holker^ Q. C, and J. Edwards showed cause.

Herschell, Q. C, and Crompton^ in support of the rule.

Cur. adv. vult.

The judgment of the court (Blackburn, Mellor, and Lush, JJ.)
was delivered b}'

Blackburn, J. This was an action for goods sold and delivered.
The third plea was demurred to, and issue was also taken upon it.
The issue in fact was tried before my Brother Mellor, when the verdict
was entered for the plaintiff, with leave to move to enter the verdict
for the defendants. A rule was accordingly obtained, against which
cause was shown at the sittings after this term before my Brothers
Mellor, Lush, and myself, and at the same time the demurrer, was
argued. We thought the plea was good, and gave judgment at once
for the defendant on the demurrer ; ^ but on the rule the question was,
whether the substance of the plea, that is, enough of it to constitute a
defence, had been proved, and in order to determine that it is neces-
sar}' to state what the evidence at the trial was.

It was proved that Messrs. J. & O. Ryder & Co. were commission
merchants carrying on business at Manchester, sometimes for them-
selves, and sometimes acting in pursuance of orders from constituents.

1 The plea stated the facts very much as they are stated in the judgment ; but it
alTleged in addition that Kyder & Co. were indebted to the defendants after the 11th
of Angnst up to their stoppage, and that the plaintiff negligently let the payment
from Ryder & Co. to him stand over a long time after the 2.5th of August, when it
became due, and permitted them to retain the money in their hands till they stopped
payment. The demurrer was not argued, the plaintiff's counsel at once yielding to
the expression ^f '■'^a opinion of the court that the plea was good. — Rep.

SECT, v.] ARMSTRONG V. STOKES. 705

The}' were not brokers professing never to act for themselves. The
plaintiff, who was a merchant at Manchester, had had previous deal-
ings with Rj'der & Co., in the course of which it appeared that he had
never inquired whether they had constituents or not. All former
transactions had been duly settled between him and J. & O. Ryder, so
that the question had never become material.

On the 15th of June, 1871, the plaintiff's salesman made a contract
with J. & O. Ryder's salesman, which, as taken down in the plaintiflTs
book, was as follows: "15th June, 1871. J. & O. R3-der & Co.,
200 pieces 39-inch 17 square shirtings, 75 yards at 20s. 6c?., £205.,
1^ per cent, 30 days." The meaning of this was explained to be that
the shirtings were to be paid for thirty days after delivery, and then
with a deduction of 1| per cent from the nominal price. As we
understood the evidence, this is an ordinary mode of dealing, though
the more usual terms in the Manchester market are cash, subject to
a discount, varying according to the rate of interest and the agreement
of the parties, the rate at this time being about 2 or 2i per cent.
When the agreement is for cash the goods are, in practice, delivered
without actual payment, and the price, less the discount, is paid a few
days afterwards, generally on the Friday following, that being the
ordinary pay-day. AVhen this practice is pursued, there is a period
during which the seller has parted with his vendor's lien before receiv-
ing the money, though he is probably not bound to do so, as where he
Las, by the contract, given credit, and the period is much shorter than
where credit has been stipulated for.

On the 24th of July the plaintiff sent the goods, which were gray,
that is, unbleached shirtings, to J. & O. Ryder, with an invoice, debit-
ing them with tlie price after deducting the discount, viz. £205. The
period of thirty days would elapse on the 23rd of August, but, J. cSj
O. Ryder's pa3"-day being Friday, actual payment would not, had all
gone right, have been made till the 25th of August.

On the 24th the plaintiff received a memorandum from J. & O.
Ryder, requesting him to delay applying for payment till the following
Friday, September 1st. Nevertheless, his salesman did call upon the
25th, but was refused payment, and told it would be all right on the
next Friday. The plaintiff saw in the newspaper an announcement
of the death of one of the partners in the firm of J. & O. Ryder, and
attributed the dela}' to this. He was, to use his own phrase in his
evidence, considering what to do, but had done nothing, when, on the
30th of August, J. & O. Ryder & Co. stopped payment.

One point that was raised for the defendants may as well be disposed
of here. We think that if the plaintiff had, on the non-payment by
J. & O. Ryder, any right to come on the defendants, the taking no
active step before the 30th was no evidence of any such laches as
would deprive him of that right.

To proceed with the evidence. It was not pretended on either side
that the plaintiff knew before the 30th of August that the defendants

4.5

706 ARMSTRONG V. STOKES. [CHAP. V.

had anything to do with this transaction, so as to afford any evidence,
on the one hand, that he had originally parted with the goods on the
credit of the defendants, or, on the other hand, that he had elected to
give credit to J. & O. Ryder to the exclusion of the defendants. But,
after the stoppage of J. & O. Ryder & Co., on examining their books
it was discovered that in tbis case they had been acting as commission
merchants for the defendants, and the plaintiff's case was, that, under
the circumstances, he was entitled to demand payment from the
defendants, as being undisclosed principals of J. & O. Ryder in this
transaction.

The evidence as to this was, that the defendants are merchants at
Liverpool, who had often before given orders to J. & O. R3 der, some-
times for gray and sometimes for white (that is, bleached) shirtings.
When such an order had been previously given for white shirtings,
the course of business had always been for J. &, O. Ryder to procure
gray shirtings, and then to have those gray shirtings bleached, and
when they were bleached to dehver them to the defendants, charging
them with the cost of the gray shirtings and of the bleaching, with
one per cent commission on that amount for placing the order, and
also with any charges for packing, &c., and this amount the defendants
always paid to J. & O. Ryder. As the defendants knew that J. & O.
Ryder were neither manufacturers nor bleachers, they were, of course,
aware that J. & O. Ryder must have procured some one to supply the
gray cloths and some one to bleach them ; but they never were, in any
of the previous transactions, brought into communication with those
who supplied the goods or those who bleached them, nor did they ever
inquire, nor were they ever told, who they were.

There was no running account between the defendants and J. & O.
Ryder, but the defendants almost invariably paid on each transaction.
It was stated in the evidence that they generally, but "not quite
always," paid in cash, that is, as already explained, on the pay-day
after the goods were delivered to them.

No inquiry was made on either side as to the nature of the excep-
tional cases in which the defendants did not pay casli. Those excep-
tions might have thrown light on the nature of the employment of
J. & O. Ryder, or they might not.

In the present case the defendants gave a verbal order to J. & O.
Ryder for bleached shirtings. Nothing was said as to the price at
which they were to be procured, which was therefore left to the dis-
cretion and honesty of J. & O. Ryder ; and nothing was said as to the
mode in which they were to be paid for, which was, therefore, to be as
usual. In consequence of this order J. & O. Ryder's manager went
to the plaintiff's salesman. The manager at first wished to buy for
cash, but wanted discount at 2\ per cent. Finally they agreed to split
the difference, and make it 1^ per cent at thirty days. All this was
perfectly bona fide between them, and the defendants knew nothing
about it.

SECT, v.] ARMSTRONG V. STOKES. 707

When the gray shirtings were delivered by the plaintiff to J. & O.
Ryder they sent them to the bleacher, who, as usual, cut each piece
in two ; and having received from J. & O. Ryder 2U() pieces of gra}-
clolh, sent back to them 400 pieces of white cloth. Ryder & Co. sent
on these 400 pieces of white cloth to tiie defendants, with an invoice
dated the 2nd of August, headed as follows: "Invoice of ten pack-
ages of goods purchased and forwarded per carrier to Liverpool, by
order and on account of Messrs. Bates, Stokes, & Co. there" (the
defendants) " b\' the undersigned," &c. The defendants were in this
invoice charged with the actual money which ought to have been paid
to the plaintiff as the price of the goods, viz., £205 less 1 i per cent dis-
count, the actual charge of the bleaching, one per cent on the amount
of those two sums as commission, and the amount of some pack-
ing charges, making in all £227 lO*-. 9d. noted as being due the
11th of August, which was the first pay-day after the goods would be
received in Liverpool. On the 11th of August the defendants, with
perfect bona fides, paid J. & O. Ryder that sum of £227 lO.s. 9f7.

On this state of the evidence, Mr. Herschell took three points.
Firsts he said that the defendants were not undisclosed principals,
employing J. & O. Ryder as agents with autliority to create privity
between the unknown persons wlio sup[)lied tlie goods and the de-
fendants. Secondly^ that even if they were, the defendants, having,
before the plaintiff heard of their connection with the matter and
before they heard of the plaintiff, honestly and in the ordinary course
of business paid J. & O. Ryder, were no longer liable to the plaintiff.
And thirdl}', that the plaintiff had by laches disentitled himself to sue.

It was admitted that all that was sworn was honestly sworn, and
neither counsel required anything to be left to the juiy. M}- Brother
Mellor thereupon directed a verdict for the plaintiff, with leave to
move to enter a verdict for the defendants, the court to have power
to draw inferences of fact.

The third point taken was disposed of at once ; but the other two
points were fullv discussed, and the authorities brought before us.
On these we took time to consider.

The first point depends on a question of fact, viz., what was the
authority really given to J. & O. Ryder by the defendants ? It is, we
think, too firmh' established to be now questioned, that, where a per-
son employs another to make a contract of purchase for him, he, as
principal, is liable to the seller, though the seller never heard of his
existence, and entered into the contract solely on the credit of the
person whom he believed to be the principal, though in fact he was not.
It has often been doubted whether it was originalh* right so to hold ;
but doubts of this kind come now too late : for we think that it is
established law that, if on the failure of the person with whom alone
the vendor believed himself to be contracting, the vendor discovers
that in realit}- there is an undisclosed principal behind, he is entitled
to take advantage of this unexpected godsend, and is not put to take

70S ARMSTRONG V. STOKES. [CHAP. V.

a dividend from the estate of liim with whom alone he believed himself
to be contracting, and to whom alone he gave credit, and to leave the
trustees of that estate to settle with the undisclosed principal, subject
to all mutual credits and equities between them. He may recover the
price himself direct from the principal, subject to an exception, which
is not so well established as the rule, and is not ver}- accurately de-
fined, viz., that nothing has occurred to make it unjust that the undis-
closed principal should be called upon to make the pa3'ment to the
vendor.

We have first to consider whether we should draw from the evidence
the inference of fact that the defendants were principals, so as to bring
the case within the rule, so that if the price had not been paid by the
defendants to Ryder & Co. the plaintiff would have a right to be paid
the money rather than look to the trustees of the estate of J. & O.
Ryder, This depends entirely on what was the real nature of the
employment of J. & O. Ryder by the defendants. The defendants not
being known in the matter at all to the plaintifl!', there is no room for
holding them bound b}' any apparent authority given to J. & 0. Ryder.
There can be no case against the defendants of holding them out as
having their authority, or clothing them with ostensible authorit}', to a
person who did not know that J. & O. Ryder had any principal at all.
As to the real authority, there is evidence both ways. The charge of
commission is conclusive to show that, to some extent, there was a
relation of principal and agent ; the defendants were entitled to have
the skill and diligence of J. & O. Ryder to get the goods as cheaply
as they could ; and the defendants were entitled to have the true cost
of the goods debited to them with no further addition than the charges
and the commission. Then Ryder & Co. did not engage to suppl}'
the goods themselves ; they only undertook to find persons who would.
If prices had risen after the plaintiff made his bargain, and the plaintiff
had refused to go on, the now defendants could not have sued J. & O.
Ryder for this ; they must either have sued the now plaintiff, if there
is privity between them, or perhaps have used the name of J. & O.
Ryder, as their trustees, to sue, as is suggested by Kelly, C. B., in
Mollett i\ Robinson, L. R. 7 C. P. at p. 119. In the invoice the de-
fendants are not charged as purchasers from J. & O. Ryder, but are
debited for goods bought by tlieir order and on their account. Tliis
form is also evidence in favor of the plaintiff. But none of these
things are conclusive. The great inconvenience that would result if
there were privitj- of contract established between the foreign con-
stituents of a commission merchant and the home suppliers of the
goods has led to a course of business, in consequence of which it has
been long settled that a foreign constituent does not give the commis-
sion merchant an}' authority to pledge his credit to those from whom
the commissioner buys tliem by his order and on his account. It is
true that this was originally (and in strictness perhaps still is) a ques-
tion of fact ; but the inconvenience of holding that privit}' of contract

SECT, v.] ARMSTRONG V. STOKES. 709

was established between a Liverpool merchant and the grower of every
bale of cotton whicii is forwarded to him in consequence of his order
given to a commission mercliant at New Orleans, or between a New
York merchant and the supplier of every bale of goods purchased in
consequence of an order to a London commission merchant, is so
obvious and so well known, that we are justified in treating it as a
matter of law, and saying that in the absence of evidence of an ex-
press authority to that effect, the commission agent cannot pledge his
foreign constituent's credit. Where the constituent is resident in
England, the inconvenience is not so great, and we think ihsit, prima
facie, the authority is given, unless there is enough to show that it was
not in fact given. It was strongly urged by the defendants' counsel,
that the course of dealing and the mode of settlement by the defend-
ants with J. & O. Ryder were sufficient to show that J. & O. Ryder
were not intended to have authority to establish privit}" of contract
between the defendants and those from whom .J. & O. Ryder obtained
tlie goods. We agree that it is evidence that way ; but we do not feel
justified in finding this question in favor of the defendants. If a
special jury, who have knowledge of the course of business beyond
what we have, had on this ground found a verdict for the defendants,
we should not have been dissatisfied with it. Indeed, we feel this so
strongly that, if the event of the cause depended upon this point, we
should probably have given tlie defendants liberty to have a new trial,
on payment of costs, in order that the opinion of a jur}- might be
taken on that new trial, when the nature of the exceptions from the
general habit of paying cash might also be ascertained. But it is not
necessary to do this, as we have come to the conclusion that the
defendants are entitled to the verdict on the second ground.

It is right, in order to avoid misapprehension, to sa^- that the phrase
repeatedly used by the counsel for the plaintiff that the vendor has a
right to follow the goods is, in our opinion, calculated to mislead.
There are cases, such as that of Wilson v. Hart, 7 Taunt. 295, to
which such a phrase would be applicable ; but those, as is pointed out
in 2 Smith's Leading Cases, at p. 332 (5th ed. ; p. 351, 6th ed.), pro-
ceed on the ground of fraud. In the absence of fraud, unless the
person receiving the goods is a party to the contract under which the
goods were sold, the vendor has no right to follow them. If the goods
were bricks sold to a contractor, he could not charge the owner of the
house into which they were built, though he might do so if the person
supposed to be the contractor turned out to be realh' agent for the
owner of the house ; and the principle is the same in such a case as
the present.

The second point raised is of considerable importance. In Railton
V. Hodgson, and Peele v. Hodgson, reported in a note to Addison i?.
Gandasequi, 4 Taunt. 575, 577, Mansfield, C. J., said, "If Hodgson"
(the undisclosed principal) "had really paid Smith, Lindsay, & Co."
(the insolvent actual purchasers), " it would have depended on cir-

710 ARMSTRONG V. STOKES. [cHAP. V.

curastances whether he would have been Hable to pay for the goods
over again ; if it would have been unfair to have made him liable, lie
would not have been so." This was in 1804. It is, however, to be
observed, that as Hodgson had not paid either, this was not necessary
for the decision. Two cases of Waring v. Favenck, 1 Camp. 85, and
Kymer r. Suwercropp, 1 Camp. lO'J, which were tried before Lord
EUenborough in 1807, are generally cited on this subject, without, as
it seems to us, paying sufficient attention to the fact that Ken3on &
Co., in consequence of whose insolvency the questions arose, were
London brokers, not commission merchants. A broker always pro-
fesses to make a contract between two principals, and, though in recent
times the strictness of the rules has to some extent been relaxed, in
1807 a London broker was bound by his bond (the form of which will
be found in Holt N. P. at p. 431, n.) to make known to the person
with whom the agreement is made the name of his principal if re-
quired, and not to deal on his own account. In Kemble v. Atkins,
Holt N. P. 427, it was decided that this did not prevent the broker
from making the contract in his own name so as to pledge his personal
credit to the seller ; but still he must necessarily have had a principal.
And, as is laid down in Higgins v. Senior, 8 M. & W. at p. 844, it
was always competent, notwithstanding this form of the agreement,
to show who the person was for whom the broker acted as agent in
making the contract, " so as to give the benefit of the contract on the
one hand to, and charge with liability on the other, the unnamed prin-
cipals." In ever}' case, therefore, where the sale is to a broker, the
vendor knows that there is or ought to be a principal between whom
and himself there is established a privity of contract, and whose secur-
ity he has in addition to that of the broker, and the principal also
knows that the vendor is aware of this and to some extent trusts to
his liability. Tiiis is, therefore, a very different kind of case from that
of a person selling goods to a person whom at the time of the contract
he supposes to be a principal. The marginal note in Kymer v. Suwer-
cropp, 1 Camp. 109, is, perhaps, too general, even in the case of a
broker, as is pointed out by Maule, J., in Smyth v. Anderson, 7 C. B.
at p. 39, but what was actually decided was probably right.

The next case in order of date is Thomson v. Davenport, 9 B. &
C. at pp. 86, 88, where Lord Tenterden, in speaking of this subject,
saj's : "I take it to be a general rule, that if a person sells goods,
supposing that at the time of the contract he is dealing with a prin-
cipal, but afterwards discovers that the person with whom he has been
dealing is not the principal in the transaction, but agent for a third
person, though he ma}' in the mean time have debited the agent with
it, he may afterwards recover the amount from the real principal ;
subject, however, to this qualification, that the state of the account
between the jprinci'pal and the agent is not altered to the prejudice of
the principal.'' And Bayley, J., says: "Where a purchase is
made by an agent, the agent does not of necessity so contract as to

SECT, v.] ARMSTKONG V. STOKES. 711

make himself personally liable ; but he mat/ do so. If he does make
himself personally liable, it does not follow that the principal may not
be liable also, subject to this qualification, that the principal shall not
be prejudiced hj being made persomdhj liable^ if the justice of the
case is that he should not be personally liable. If the primApal has
paid the agent, or if the state of the accounts beticeen the agent here
and the principal would make it unjust that the seller should call on
the princip(d, the fact ofpaifment, or such a state of accounts, would
be an answer to the action brought by the seller where he had looked
to the responsibility of the agent.""

In this case, as in Railton v. Hodgson, 4 Taunt, at p. 576, n., the
freshly-discovered principal had not paid any one, and therefore the
two i)assages above in italics were no necessary part of the decision,
though they are weighty autliorities as indicating the decided opinion
of two judges of great experience in commercial cases.

In Smyth v. Anderson, 7 C. B. 21, 36, the case arose in such a
peculiar way that it is difficult to say exactly what was decided. But
Maule, J., in his very elaborate and able judgment, expresses a decided
opinion that the dicta of Chief Justice Mansfield and Bayley, J. (he
seems not to have noticed that of Lord Tenterden), '' affords a sensible
rule on the subject." The latter dictum of Maule, J., adds very
greatly to the weight of those which preceded. Still, there is no actual
decision on the point.

On the otlier hand, it is stated in a note to the third edition of
Paley's Principal and Agent, p. 249 n., that Mr. Justice James Parke
was amongst those who did not acquiesce in the decision in Thomson v.
Davenport, 9 B. & C. 78. It is not said on what authority' that state-
ment proceeds, and from the context it would seem that his dissent
was rather from the extension of the rule b}' which the principal might
be charged than from the exceptions to that rule. But in Ileald v.
Kenworthy, 10 Ex. 739, 745, he does, as it seems to us, express dis-
sent from the exceptions. The case itself arose on a demurrer to a
plea wliich is set out. But then it is stated that the court thought it
might amount to the general issue, and therefore it was amended, but
the report does not state what the amendments were. It is not eas3-,
therefore, to say what was the actual decision. It does not, however,
appear that in any part of the plea it was stated that the plaintiff was
ignorant of the existence of the defendant as principal till after the
defendant had paid the agent, nor even that the defendant believed
such to be the case. Unless the plea was such as to raise the very
point, tlie opinion of Parke, B. (like those of Mansfield, C. J., Bayley,
J., and Maule, J.), is but a dictum entitled to high respect as an
authority, but not binding as a decision. Parke, B., lays down gener-
ally that " if a person orders an agent to make a purchase for him, he
is bound to see that the agent pays the debt ; and the giving the agent
money for that purpose does not amount to payment, unless the agent
pays it accordingly." After commenting on several of the cases al-

712 ARMSTRONG V. STOKES. [CHAP. V.

read}' referred to, he concludes: " I think that there is no authority
for saN'ing that a payment made to the agent precludes the seller from
recovering from tlie principal, unless it appears that he has induced
thq principal to believe that a settlement has been made with the
agent." He states this as generally true wherever a principal has
allowed himself to be made a party to a contract, and makes no excep-
tion as to the case where the other side made the contract with the
agent believing him to be principal, and continued in such belief till
after the payment was made. He certainly does not in terms say that
there is no qualification of the principle he lays down when applicable
to such a case; but recollecting how careful Parke, B., always was to
la}- down what he thought to be the law fully and with accuracy, we
think the counsel for the plaintiff were justified in arguing that Parke,
B., thought the exception did not exist. And this is, in our opinion,
a weighty authority in favor of the plaintiff's contention, more espe-
cially as Pollock, C. B., assents in his judgment to the remark thrown
out by Parke, B,, during the argument, and afterwards more elabo-
rately stated by him in his judgment. And Alderson, B., in his judg-
ment, appears entirely to assent to the judgment of Parke, B.

We think that we could not, without straining the evidence, hold in
this case that the plaintiff had induced the defendants to believe that
be (the plaintiff) had settled with J. & O. Rj-der at the time when the
defendants paid them.

This makes it necessary to determine whether we agree in what we
think was the opinion of Parke, B,, acquiesced in b}- Pollock, C. B.,
and Alderson, B.

We think that, if the rigid rule thus laid down were to be applied to
those who were only discovered to be principals after they had fairly
paid the price to those whom the vendor believed to be the principals,
and to whom alone the vendor gave credit, it would produce intolerable
hardship. It may be said, perhaps truly, this is the consequence of
that which might originally have been a mistake, in allowing the
vendor to have recourse at all against one to whom he never gave
credit, and that we ought not to establish an illogical exception in
order to cure a fault in a rule. But we find an exception (more or less
extensivel}' expressed) always mentioned in the very cases that lay
down the rule ; and without deciding anything as to the case of a
broker, who avowedly acts for a principal (though not necessarily
named), and confining ourselves to the present case, which is one in
which, to borrow Lord Tenterden's phrase in Thomson v. Davenport,
9 B. & C. at p. 86, the plaintiff sold the goods to Ryder & Co., " sup-
posing at the time of the contract he was dealing with a principal," we
think such an exception is established.

We wish to be understood as expressing no opinion as to what
would have been the effect of the state of the accounts between the
parties if J. &, O. Ryder had been indebted to the defendants on a
separate account, so as to give rise to a set-off or mutual credit

SECT, v.] CURTIS V. WILLIAMSON. 713

between them. We confine our decision tx) the case where the defend-
ants, after the contract was made, and in consequence of it, hona fide
and witliout moral blame, paid J. & O. Ryder at a time when the
plaintiff still gave credit to J. «&; O. Ryder, and knew of no one else.
We think that after that it was too late for the plaintiff to come upon
the defendants.

On this ground we make the rule absolute to enter the verdict for
the defendants. Ride absolute.

CURTIS AND OTHERS V. WILLIAMSON and others.
Queen's Bench. 1874.

[£. R. 10 Q. B. 57.]

Declaration for goods bargained and sold, and sold and delivered,
and for interest and money due on accounts stated.

Plea, never indebted. Issue thereon.

At the trial before Quain, J., at the Winter Assizes at Liverpool, a
verdict was entered for the plaintiffs, leave being reserved to the de-
fendants to move to enter a nonsuit.

A rule was accordingly obtained on the ground that the plaintiffs had
not elected to go against the defendants, but had elected to proceed
against Boulton, the agent.

The facts and arguments sufficiently appear in the judgment of the
court.

Nov. n. C. Mussell, Q. C, and Potter showed cause.

C Crompton and Gorst, in support of the rule.

Cur. adv. vxdt.

Dec. 10. The judgment of the court (Cockburn, C. J., Qcain and
Archibald, JJ.) was delivered b}'

Quain, J. This was an action to recover the price of gunpowder
bought of the plaintiffs by one Boulton in his own name, but in reality
as agent for the defendants, and for the purpose of being used in a
mine which was their property. The fact of the agency was not dis-
closed at the time of the purcliase, but it afterwards became known to
the plaintiffs that the defendants were the principals.

After the plaintiffs had acquired this information, Boulton having
filed a petition for the liquidation of his estate, an affidavit in the
usual form, for the purpose of proving under the liquidation for the
price of the powder, was made by a clerk of the plaintiffs, treating
Boulton as their debtor, and was sent bj^ post to Birmingham, to be
filed in the county court there, in which the proceedings in liquidation
were carried on.

Almost immediately after this affidavit had been posted the plaintiffs'
attorneys, being apprehensive that a claim against Boulton's estate
might prejudice their riglits as against the defendants, despatched a

714 CURTIS V. WILLIAMSON. [CHAP. V.

telegram to their agent at Birmingham, directing him not to file the
affidavit. The telegram, however, was too late, and was not received
until after the affidavit had been filed ; but no further step of any kind
was taken by the plaintiffs in relation to the liquidation proceedings,
nor has any dividend been received by them. Shortly after the affidavit
had been thus filed this action was commenced against the defendants.
There was no evidence whatever that after the fact of the agency had
become known to the plaintiiTs the state of the accounts between the
defentlants and Boulton had been in any way altered to the prejudice
of the defendants ; and the sole question raised by the rule, which was
oranLed to set aside the verdict for the plaintirt's and enter a nonsuit, is,
■whether, under the circumstances, the making and filing of the affidavit
in bankruptc}- amounted, in point of law, to a conclusive election by
the plaintiffs to treat Boulton as their debtor, so as to preclude them
from maintaining this action against his principals. We are of opinion
that it did not. There can be no doubt that, in the absence of an}'
alteration of the account to the prejudice of the principals, the plain-
tiffs, on discovering that Boulton was merely an agent for the defend-
ants, had a right within a reasonable time (Smelhurst r. Mitchell,
1 E. & E. 622; 28 L. J. (Q. B.) 241), to elect to proceed against
the defendants, Thomson v. Davenport, 9 B. & C. 78, 86 ; unless in
the mean time, with full knowledge as to who were the principals, and
with the power of choosing between them and the agent (Addison y.
Gandasequi, 4 Taunt. 574, and Paterson v. Gandasequi, 15 East, 62),
they had distinctly and unquestionably elected to treat the agent alone
as their debtor. Principals and agent were equally liable upon the con-
tract, and the vendor had a clear option a. to which of them he would
hold responsible. The question is, What is sufficient to constitute a
binding election in point of law? In general, the question of election
can only be properly dealt with as a question of fact for the jury, subject
to the direction of the presiding judge, as was done in the case of Calder
V. Dobell, Law Rep. 6 C. P. 486 ; but there may no doubt be cases in
which the act of the contractee in regard to his dealings with or proceed-
ing against the agent, with full knowledge of the facts and freedom of
choice, may be such as to preclude him in point of law from afterwards
resorting to the principal. Wliether in regard to proceedings taken
against the agent by action at law anything short of judgment and sat-
isWlion would be sufficient to exclude resort to the principal, was the
point raised in the case of Priestly v. Fernie, which was cited on behalf
of the defendants.! . . . But it is clear, from the language used by
Bramwell, B.. in delivering the judgment of the court, that whilst it
was considered that judgment against the agent, even without satisfac-
tion, would constitute a conclusive election, yet that no legal proceed-
ings short of judgment would have that effect, for he distinctly points
oul; that by the word " sue " he means " sue to judgment." If the facts
in the present case were similar to those in Priestly v. Fernie, we

1 Here was stated Priestly v. Fernie, antp, p. 698. — Ed.

SECT, v.] IRVINE V. WATSOX. 715

should, of course, be bound by the decision in that case to bold that
" suing " the principal in tlie sense in which the word " sue " is there
used, would, though the claim remained unsatisfied, amount to a bind-
ing election ; but the proceedings in question have little analog}', and
fall very far short of what occurred in Priestly r. Fernie. There two
successive actions had l)een brought against the captain, one abroad
and the other in this country, without any intermediate attempt, so far
as appears, to hold the shipowner liable, and tiie agent (the captain)
had been actually taken in execution. Here, however, no action was
ever commenced against the agent, and every effort was made to inter-
cept and withhold the affidavit in bankruptcy which had been made, as
it would seem, without due consideration and without any intention
whatever to discharge the present defendants from responsibility. We
think it would be going much too far to hold that this was in point of
law a binding election to deal with the agent as alone liable, and aban-
don all right to take proceedings against his principals. It might possi-
bly, in an appropriate case, constitute with other facts some evidence
of election to be submitted to a jury ; but we cannot regard it in itself
as a legal bar to proceedings against the defendants ; nor is there an}'
question that, if at lil)erty to sue the principal at all, the action was
brought within a reasonable time. For these reasons we are of opinion
that the rule to set aside the verdict and enter a nonsuit should be dis-
charged. Hide discJiarged}

IRVINE & CO. V. WATSON & CO.

Court of Appeal. 1880.

[5 Q. B. D. 414.]

This was an action brought to recover the price of certain casks of
oil. BowEN, J., on further consideration, gave judgment for the plain-
tiffs,'^ and the defendants appealed.

1 See Gardner v. Bean, 124 Mass. .347 (1878) ; Dyer v. Swift, 1.54 id. 1.59 (1891). —
Ed.

- In the course of his opinion in the Queen's Bench Division, as reported in 5 Q. B. D.
102, 106-108 (1879), Bowen, J., said: "It is obvious that when, as in Armstrong v.
Stokes, the seller deals exclusively with the agent as principal, tlie seller sells know-
ing, if his buyer turns out to have a principal behind him, the principal will have, at
all events, been justified in assuming, as the fact is, that the seller deals simply with
the agent. The principal may be expected to arrange with his agent on that basis.
If before recourse is liad to him the undisclosed principal has put his agent in funds
to pay, the seller cannot afterwards object that the imdisclosed principal, who had a
right to suppose his credit was not looked to in the matter, shouhl have held his hand.
The case is altered where the agent when buying states that he lias a principal whose
existence, though he does not name him, he is authorized in mentioning. I think that
the liability of the principal, who under such circumstances pays his agent, to pav over
again to the seller, must depend in each case on what j)asscs between tlie seller and the

716 IRVINE V. WATSON. [CHAP. V.

GuUy^ Q. C, and Crompton, for the defendants.

W. li. Kennedy (/Sir F. HerschelU S. G., with him), for the plain-
tiffs.

Bramwell, L. J. I am of opinion that the judgment must be
affirmed. The facts of the case are shortly' these : The plaintiffs sold
certain casks of oil, and on tlie face of the contract of sale Conning
appeared as the purchaser. But the plaintiffs knew that he was only
an agent buying for principals, for he told them so at the time of the
sale ; therefore the}' knew that they had a right against somebody
besides Conning. On the other hand, the defendants knew that some-
bod}- or other had a remedy against them, for they had authorized
Conning, who was an ordinarj' broker, to pledge their credit, and the
invoice specified the goods to have been bought " per John Conning."
Then, that being so, the defendants paid the broker ; and the question
is whether such payment discharged them from their lial)ilit3' to the
plaintiffs. I think it is impossible to sa\" that it discharged them,
unless the}' were misled b}- some conduct of the plaintiffs into the
belief that the broker had already settled with the plaintiffs, and made
such payment in consequence of such belief. But it is contended that
the plaintiffs here did mislead the defendants into such belief b}- parting
with the possession of the oil to Conning without getting the money.
The terms of the contract were " cash on or before deliver}-," and it is
said that the defendants had a right to suppose that the sellers would
not deliver unless they received payment of the price at the time of
delivery. I do not think, however, that that is a correct view of the
case. The plaintiffs had a perfect right to part with the oil to the

agent acting within the scope of his authority, and on the precise nature of the contract
which the agent has lawfully made. In the present instance the plaintiffs were informed
that Conning & Co. bought as agents, and that they had an undisclosed principal in
the transacti(jn. The plaintiffs sold, trusting partly, but not wholly, to the credit of
the agent, for in fact they relied on the credit of an unknown and unnamed principal,
to the disclosure of whose name they were entitled on demand. The contract was for
cash ; the price was, if not received before delivery, to be payable forthwith upon deliv-
ery. The essence of such a transaction is that the seller as an ultimate resource looks
to the credit of some one to pay him if the agent does not. Till the agent fails in
payment the seller does not want to have recourse to this additional credit. It remains
in the background ; but if, before the time comes for payment, or before, on non-
payment by the agent, recourse can be fairly had to the principal whose credit still
remains pledged, the principal can pay or settle his account with his own agent, he
will be depriving the seller, behind the seller's back, of his credit. It surely must, at
all events, be the law that in the case of sale of goods to a broker the principal known
or unkno^vn cannot, by paying or settling before the time of payment comes with his
own agent, relieve himself from responsibility to the seller, except in the one case
where exclusive credit was given by the seller to the agent. But may the payment
or settlement to or with the agent be safely made in such a case after the day of pay-
ment has arrived, and if so within what time ? It seems to me that it can only safely
be made if a delay has intervened which may reasonably lead the principal to infer
that the seller no longer requires to look to the principal's credit, such a delay for
example as leads to the inference that the debt is paid by the agent, or to the inference
that though the debt is not paid the seller elects to abandon his recourse to the prin-
cipal and to look to the agent alone." — Ed.

SECT, v.] IRVINE V. WATSON. 717

broker without insisting strictly upon their right to prepayment, and
there is, in my opinion, nothing in the facts of tlie case to justify- the
defendants in believing that they would so insist. No doubt if there
was an invariable custom in the trade to insist on prepayment where
the terms of the contract entitled the seller to it, that might alter the
matter ; and in such case noninsistence on prepayment might discharge
the buyer if he paid the broker on the faith of the seller already having
been paid. But that is not the case here ; the evidence before Bowen, J.,
shows that there is no invariable custom to that effect.

Apart from all authorities, then, I am of opinion that the defendants'
contention is wrong, and upon looking at the authorities, I do not think
that an}' of them are in direct conflict with that opinion. It is true
that in Thomson v. Davenport, 9 B. & C. 78, both Lord Tenterden
and Bayley, J., suggest in the widest terms that a seller is not entitled
to sue the undisclosed principal on discovering him, if in the mean time
the state of account between the principal and the agent has been
altered to the prejudice of the principal. But it is impossible to con-
strue the dicta of those learned judges in that case literall}' ; it would
operate most unjustlj" to the vendor if we did. I think the judges who
uttered them did not intend a stricth' literal interpretation to be put on
their words. But whether the}' did or no, the opinion of Parke, B., in
Heald v. Kenworthy, 10 Ex. 739, seems to me preferable; it is this,
that " If the conduct of the seller would make it unjust for him to call
upon the buyer for the mone}', as for example, where the principal is
induced by the conduct of the seller to pa}' his agent the money on the
faith that the agent and seller have come to a settlement on the matter,
or if any representation to that effect is made by the seller, either by
words or conduct, the seller cannot afterwards throw off the mask and
sue the principal." That is in ray judgment a much more accurate
statement of the law. But then the defendants rely on the case of
Armstrong v. Stokes, L. R. 7 Q. B. 598. Xow that is a very remark-
able case ; it seems to have turned in some measure upon the peculiar
character filled by Messrs. Ryder as commission merchants. The
court seemed to have thought it would be unreasonable to hold that
Messrs. Ryder had not authority to receive the money. I think upon
the facts of that case that the agents would have been entitled to main-
tain an action for the money against the defendant, for as commission
merchants they were not mere agents of the buyer. Moreover, the
present is a case which Blackburn, J., there expressly declines to de-
cide. He expressly draws a distinction between a case in which, as in
Armstrong v. Stokes, the seller at the time of the sale supposes the
agent to be himself a principal, and gives credit to him alone, and
one in which, as here, he knows that the person with whom he is deal-
ing has a principal behind, though he does not know who that princi-
pal is.

It is to my mind certainly difficult to understand that distinction,
or to see how the mere fact of the vendor knowing or not knowing

718 IRVINE V. WATSON. [CHAP. V.

that the agent has a principal behind can affect the liabihty of that
principal. I should certainly have thought that his liabilitj- would
depend upon what he himself knew, that is to saj' whether he knew that
the vendor had a claim against liim and would look to him for payment
in the agent's default. But it is sufficient liere that the defendants did
know that the sellers had a claim against them, unless the broker had
already paid for the goods.

In this view of the case it is unnecessary to consider the furtlicr
question raised b3' Mr. Kenned}', as to whether a pa^^ment on a general
running account, as distinguished from a payment specifically appro-
])riated to the particular purchase, would be sufficient to bring the case
within Lord Tenterden's qualification of the general rule.

Baggallay, L. J. I am of the same opinion. When the case was
before Bovven, J., two questions were raised : first, whether the broker
had authority to bind and did bind the defendants, and secondly
whetlier, assuming that he had done so, the defendants were exonerated
b}' anything which subsequently occurred. The first question is one of
fact, which I agree ought to be answered in the aflBrmative. Then did
anything occur subsequently to discharge the defendants? It is said
that the}' paid the brokers, and that that fact operated as a discharge.
I may say that I doubt wliether their acceptances being in settlement
of a general account could strictl}' be said to be paj'ment for the oil, but
I am content to treat them as such. What then was the effect of that
payment? If the dicta in Thomson y. Davenport are to be taken as
strictly correct, the}' certainly go a long way to support the defendants'
contention. But it is to be observed that they were mere dicta^ and
quite unnecessary to the decision. The largeness of those dicta has
since been dissented from by Parke, B., in the case of Heald v. Ken-
worthy, and with his dissent I entirely agree. He sought to limit the
qualification of the general rule to cases in which the seller by some
conduct has misled the buyer into believing that a settlement has been
made with the agent. And if that limitation is correct, I am of opinion
that there is no such payment here as would discharge the defendants.

But reliance is placed upon tlie case of Armstrong v. Stokes as estab-
lishing the doctrine that the buyer is released from liability, if be pays
the agent at a time at which the seller still gives credit to the agent —
and it is contended that as that state of facts existed here, the defend-
ants are accordingly discharged. But I think that is not the true view
of the decision in Armstrong v. Stokes. It must be accepted with refer-
ence to the particular circumstances of that case. There at the time of
the payment by the principal to the brokers, the sellers still gave credit
to the brokers and to the brokers alone. But that is not the case here ;
the plaintiffs it is true gave credit to Conning, but they did not give
him exclusive credit. I do not think I am running counter to any of
the decided cases in thinking that this judgment must be aflflrmed.

Brett, L. J. The material facts of this case are these. There is
a contract for the sale of goods made between the plaintiffs and the

SECT, v.] IRVINE V. WATSON. 719

defendants through the agency of one Conning, a broker. But in mak-
ing this contract Conning acted solely as agent of the defendants, not
as agent of the plaintiffs at all. Tlie contract was for " cash on or
before delivery ; " and the goods having been delivered, the defendants
pay Conning, who, as I have said before, was their agent and no one
else's. Now, apart from authority, I should certainly say that a pay-
ment to such an agent could not be a good payment to the plaintiffs.
But then it is said that it is a good payment within the dicta of Thomson
V. Davenport ; but there the question for the decision of the court was,
not whether a payment by the principal to the agent precluded the seller
from suing the principal, but, wliether the seller could sue the principal
at all. The main proposition laid down by Lord Tenterden was this,
" that if a person sells goods, supposing that at the time of the contract
he is dealing with the principal, but afterwards discovers that the person
with whom he has been dealing is not the principal, but agent for a
third person, though he may in the mean time have debited tlie agent
with it, he may afterwards recover the amount from the real principal."
He then introduces a qualification, "subject, however, to this qualifica-
tion, that the state of the account between the principal and the agent
is not altered to the prejudice of the principal." Now the terms of that
qualification are certainly very wide, and Bayley, J., in qualifying the
above general rule uses equally' wide language: " If the principal has
paid the agent, or if the state of accounts between the agent and the
principal would make it unjust that the seller should call on the princi-
pal, the fact of payment or such a state of accounts would be an answer
to the action brought by the seller where he had looked to the responsi-
bilit}' of the agent."

And Maule, J., in the case of Smyth v. Anderson, 7 C. B. 21, ex-
presses himself in the same general terms. But there again the point
did not directly call for decision. Now, I think it is not fair to put a
strictly literal interpretation on the language used by judges when
merely glancing at by matters, with their minds mainl}' directed to
another question, and, tying them down to the very words they used,
to assume that those words contained in their opinion an absolutely
accurate statement of the law. I do not think those dicta were so in-
tended to be read. In Heald v. Kenworthy, however, the question
directly arose. And Parke, B., after citing the dictum, of Bayley, J.,
to the effect that the seller cannot sue the principal if the state of
accounts between the principal and the agent would make it inequitable
that he should do so, proceeds to ask what equity there can be, unless
it is something arising out of the conduct of the seller, something to
induce the defendant to believe that a settlement has already been
made with the agent.

If the authorities stood there, I should have no doubt that the limita-
tion put by Parke, B., on the earlier wide qualification was correct.
But it is suggested that that limitation was overruled in Armstrong v.
Stokes. I think, however, that the court there did not intend to over-

720 MEKKILL V. KENYON. [CHAP. V.

rule it, but to treat the case before them as one to which the limitation
did not apply. I think they noticed the peculiar character of Man-
chester commission merchants. Probably their decision means this,
that, when the seller deals witli the agent as sole principal, and the
nature of the agent's business is such that the buyer ought to believe
that the seller has so dealt, in such a case it would be unjust to allow
the seller to recover from the principal after he paid the agent. Or it
may perhaps be that Blackburn, J., finding the wider qualification in
the very case which la^'s down the general rule, felt himself bound by
the terms of that qualification, and applied them to the case before him.

If the case of Armstrong v. Stokes arises again, we reserve to our-
selves sitting here the right of reconsidering it.

The only other question is whether the present case falls within the
qualification as limited b}' Parke, B., whether there was an}' misleading
conduct on the part of the plaintiffs. But the only thing relied on by
the defendants on that point was the noninsistence on prepayment by
the plaintiffs. And I do not think that that amounted to laches, or was
such an act as would justify the defendants in supposing that Conning
had already' paid the plaintiffs.

Baggallay, L. J. I wish to add that Littledale, J., in the case in
Thomson v. Davenport, confined his judgment to the general rule.

Appeal dismissed.^

MERRILL AND OTHERS V. KENYON.
Supreme Court of Connecticut. 1880.

[48 Conn. 314.]

Assumpsit for goods sold ; brought to the Court of Common Pleas,
and tried to the jury on the general issue before Mather, J.

On the trial it was agreed that the goods for the value of which the
action was brought were delivered to one George A. Hoyle, who was
carrying on the business of a saloon-keeper in Norwich, ostensibly on
his own account, and that the credit was given by the plaintiffs to
Hoyle. It was claimed by the defendant that the plaintiffs knew that
Hoyle was doing business as an agent when they sold the goods, but
this was denied by the plaintiffs.

The plaintiffs claimed that at the time the goods were furnished, and
for a long time afterwards, they supposed that Hoyle was the real pro-

' In Davison v. Donaldson, 9 Q. B. D. 623, 628 (C. A. 1882), Jessel, M. R., said:
"I am far from saying that there may not be special cases in which mere delay on
the part of the plaintiff would be held to be sufficiently misleading conduct ; it may
amount to a representation that he has been paid."

With the principal case compare Fradley v. Hyland, 37 Fed. Rep. 49 (U. S. C C,
S. D. N. Y., 1888). — Ed.

SECT, v.] MERRILL V. KENYON. 721

prietor of the place and business, and bad no reason to suppose other-
wise, but that subsequently the}' received information that led them to
believe that he was only an agent, and that the real proprietor was tlie
defendant, and that immediately upon this discovery the}' ceased to
look to Hoyle for payment, and elected the defendant as their debtor,
and brought this suit to recover the value of the goods. The defend-
ant denied that he was the proprietor of the saloon, or had any interest
in the business, though he admitted that he was the owner of the fix-
tures and some of the property in the saloon. He also denied that the
plaintiffs made their election of him as their debtor as soon as they dis-
covered, as they supposed, that he was the proprietor, but continued to
give credit to Hoyle.

It appeared in evidence that two negotiable notes bearing date July
25th, 1877, and payable in two and three months, had been given by
Hoyle to the plaintiffs for the account of the goods which were fur-
nished, the account commencing November 25th, 1876, and closing
July 31st, 1877, which notes were still retained by the plaintiffs, and
have never been surrendered or cancelled, negotiated or paid; and it
was claimed b}' the defendant that the notes were received in payment,
which was denied by the plaintitTs.

The plaintiffs requested the court in writing to charge the jury as
follows : —

1. If the plaintiffs did not know that Hoj'le was acting as agent,
while the goods were being furnished, and as soon as they discovered
that he was the agent of Kenyon the}' elected Kenyon as their debtor
instead of Hoyle, your verdict should be for the plaintifTs ; and, under
this head, it is for you to find as a matter of fact, when, if ever, the
plaintiffs had such information as I'equired them to make their election.
The plaintiffs were not obliged to make their election on a mere rumor,
but only on such information as they could rely upon.

2. If the plaintiffs knew, while they were furnishing the goods, that
Hoyle was an agent, but did not know whose agent he was, the same
rule applies as if they did not know that he was an agent at all.

3. Taking notes for an antecedent debt does not discbarge the debt,
unless it is expressly agreed between the parties that the notes shall
be received as payment. The presumption is that they are not so
received.

4. Even if the plaintiffs took the notes as payment, but did not have
reason to know at the time that Hoyle was Kenyon's agent, then,
unless the notes were paid, on discovering that fact they were still
entitled to look to Kenyon.

The court did so instruct the jury.

The defendant requested, in writing, the court to charge the jury,
that if the plaintiffs knew that Hoyle was agent, and then received his
notes, tlie presumption was that they were received in payment of the
original bill and that they elected Hoyle as debtor. The court declined
to so charge, but did charge that if the plaintiffs knew that Hoyle was

722 MEREILL V. KENYON. [CHAP. V.

agent of Kenyon, and then received his notes, the pi'esumption was
that they elected Hoyle as their debtor.

The jury returned a verdict for the plaintiffs, and the defendant
moved for a new trial for error in the charge of the court.

S. Luctis and G. C. mpley^ in support of the motion.

S. S. Thresher and F. T. £roirn^ contra.

Park, C. J. No complaint is made of that part of the charge in
which the court instructed the jury that, if the plaintiffs did not know
at the time of the sale that Hoyle was acting as agent, and as soon as
they discovered that he was so, elected to make his principal their
debtor, they had a riglit to recover, and that the}' were not obliged to
make their election upon a mere rumor, but had a right to have reliable
information to act upon ; but exception is taken to that part of the
charge in which the judge said, " If the plaintiffs knew, while the}'
were furnishing the goods, that Hoyle was an agent, but did not know
whose agent he was, the same rule applied as if they did not know he
was an agent at all."

The case of Thomson v. Davenport, 9 Barn. «& Cress. 78, fully sus-
tains this charge of the court. ^ . . .

The case of Raymond v. Crown & Eagle Mills, 2 Met. 319, is to
the same effect. It was there held that " there must be actual knowl-
edge, on the part of the vendor, of the relation of the parties and their
interest in the matter, to exonerate the principal by giving credit to
the agent."

Complaint is also made of that part of the charge in which the judge
said to the jury that " even if the plaintiffs took the notes as payment,
but did not have reason to know at the time that Hoyle was the agent
of the defendant, then, unless the notes were paid, on discovering that
fact they were still entitled to look to the defendant."

Surely the plaintiffs would not be bound by an agreement to take
the notes of Hoyle in payment without any knowledge of the fact that
Hoyle was the agent of the defendant, any more than they would be
bound by their charge of the goods to him believing him to be the
principal. The plaintiffs were entitled to the right of an election to
charge the defendant, and no agreement they might make with Hoyle,
under a misapprehension of the true character of the party with whom
they were dealing, could deprive them of that right. The reason why
a party is not bound, when he charges the agent believing him to be
the principal, is the want of knowledge that another is the buyer in
fact. The same principle must prevail in a case where the agent's
notes are taken without that knowledge.

And it is well settled that the taking of the promissory note of a
debtor for an antecedent debt is not of itself payment. Davidson v.
Bridgeport, 8 Conn. 472 ; Bill v. Porter, 9 Conn. 23 ; Freeman v.
Benedict, 37 Conn. 559.

* Here was stated Thomson v. Davenport, ante, p. 637. — Ed.

SECT, v.] FORNEY V. SHIPP. 723

The defendant further complains of the refusal of the court to charge
the jur3', as requested by him, " that if the plaintiffs knew that Iloyle
was an agent, and then received his notes, the presumption is that they
were received in paymiiut of the original bill, and that he elected Iloyle
as his debtor."

We have already seen that the bare fact that the plaintiffs knew that
Hoyle was an agent of some one in the transaction, was not enough to
distinguish the case from that class of cases where such knowledge
does not exist and sellers deal witli agents supposing they are princi-
pals. Such being the case, it is clear that the court committed no
error in refusing to charge as requested by the defendant. The cases
already cited show tliat the facts stated create no such presumption as
that claimed.

A new trial is not advised.

In this opinion the other judges concurred.^

SECTION V. (continuecl).
(C) In an Action brought by the Third Party against the Agent.

FOKNEY i\ BARTLETT SHIPP.

Supreme Court of North Carolina. 1857.

[4 Jones' Law, 527.]

Action of assumpsit, tried before Bailey, J., at a Special Term,
Jul}', 1857, of Lincoln Superior Court.

The evidence was that defendant said he wished to emplo}' the
plaintiff to superintend the iron-works at Madison Forge ; that if he
would undertake the business, he would give him $12.50 per month as
long as he continued to work ; to which the plaintiff agreed.

Accordingly, the plaintitf took charge of the iron-works, and the first
entry he made in the book, in which he kept his account, was as fol-
lows : "June 7th, 1852. Commenced work this day for Wni. Shipp ;
employed b}' Bartlett Shipp, at $12.50 per month."

It was further proved that plaintiff acted as superintendent about
two years and six months, and during that time issued many due bills,
payable in iron, and signed the same as agent for William Shipp ; that
he also signed many receipts in the same way, and made entries in the
book of accounts as agent. It was further proved that plaintiff sold
iron and iron-ware, to a large amount, for William Shipp.

The court charged the jury that, if the defendant made the contract
in his own name, and engaged himself to pay the plaintiff for his work,

^ Compare Perklus v. Cady, 111 Mass. 318 (1873). — Ed.

724 FOENEY- V. SHIPP. [CHAP. V.

without disclosing tlie name of bis principal (if he had one), he would
be responsible in this action, and the jury should so find ; but if the
defendant disclosed his principal, or if the plaintiff contracted with him
knowing that the defendant was making the contract for, and on ac-
count of, William Shipp, and not for himself, he would be obliged to
resort to the principal and not to the agent, and the plaintiff in that
case could not recover.

The defendant's counsel asked the court to instruct the jury that,
although the defendant contracted in his name without disclosing his
princi[)al, ^-et, if the plaintiff found out, after the contract was made,
and before he commenced work, that he was acting for William Shipp,
he could not recover in this action.

The court declined giving such instructions ; and the defendant
excepted.

The defendant relied upon the fact that the plaintiff had sold iron
and castings, to a large amount, belonging to William Shipp, and in-
sisted upon this counter-claim as a set-off.

But the court instructed the jury that this claim in favor of William
Shipp was not applicable as a set-off in this suit against the defendant.
Defendant again excepted.

There was a verdict in favor of the plaintiff, and judgment was
rendered thereupon. Defendant appealed.

Lander and Aver//, for the plaintiff.

Tliompson and Iloke^ for the defendant.

Pearson, J. There is no error. We are to assume from the ver-
dict " that the defendant made the contract in his own name, and
engaged himself to pa}- the plaintiff for his work, without disclosing the
name of his principal." The plaintiff having done the work, why
should not this contract be binding ?

It was said in the argument that there was no consideration in
respect to the defendant. The proposition is not true. The contract
was supported by the consideration of mutual promises between the
contracting parties.

The fact that the plaintiff " found out," before he commenced work,
that the work was to be done for William Shipp, and not for the defend-
ant (his father), was immaterial ; and his honor properly declined to
give the instruction asked for. Suppose William Shipp to have been
an infant, or a bankrupt, that did not discharge the plaintiff from his
promise to do the work ; therefore it could not discharge the defendant
from his promise to pay for it.

The ruling in regard to the defendant's availing himself of a set-off,
by reason of a supposed balance due William Shipp, growing out of the
sale of castings, was in strict accordance with the legal rights of the
parties. If William Shipp had made payments to the plaintiff (as dis-
tinguished from a set-off), for, and on account of, his work, that would
have presented a different question. But the fact that the plaintiff (as
was alleged) had sold castings for William Shipp, and had failed to

SECT, v.] HUTCHINSON V. WHEELER. 725

account Iherefor, so as to give hira a right to sue for an account, was
properly excluded from the inquiry involved in the issues joined be-
tween the plaintiff and defendant.

Judgment affirmed.

HUTCHINSON v. WHEELER.
SuPHKME Judicial Court of Massachusetts. 1862.
[3 Alien, 577.]

Contract upon an account for work and labor.

At the trial in the Superior Court, a trial by jury was waived, and,
upon facts which are stated in the opinion, judgment was rendered for
the plaintiff, and the defendant alleged exceptions.

J. E. 3Iai/nadt('r^ for the defendant.

C. C. Esttj, for tlie plaintiff.

Dev^ey, J. The defendant, not having disclosed the fact of his
agenc}- at the time of making the contract with the plaintiff for services
to be rendered by him at a stipulated price, is personally responsible
for the payment for all the services rendered under that contract,
unless by the subsequent facts, and the acts of the plaintiff in connec-
tion therewith, he has as to a part of the demand been discharged from
such liabilit}'.

These facts are, 1st, That the plaintiff, a short time before the 1st of
March, 1857, and several months after the labor was commenced, was
told by the foreman in the establishment that the defendant was only
an agent, and that the " Feltonville Horse-shoe Company " was the
principal ; but the plaintiff was not told, and did not know who com-
posed that compan}'. The compan}' was a joint stock company, and
was not incorporated. 2dly, The plaintiff after hearing this statement
altered the charge on his books for the labor performed under this con-
tract prior to 1st March, 1857, from " E. Wheeler" to the "Felton-
ville Horse-shoe Compan}-," and this continued as the form of the
charge upon the books until a short period before the commencement
of the present action, when the plaintiff altered the same to its original
form, " E. Wheeler, Dr." In the opinion of the court these facts do
not constitute a defence of this action. The agent made no disclosure
of his agency that authorized any change in the name of the debtor,
nor did he make any reference to any other party who was responsible
as principal. The mere casual statement made to the plaintiff by
another person did not necessarily affect the liability of the defendant
upon the contract he had made with the plaintiff. It is true that
the plaintiff upon discovering the undisclosed principal might have the
election to resort to him for payment, but he was not bound to do so,
when be had contracted with one who did not disclose his agency.

726 COBB V. KNAPP. [chap. V.

Nor do the facts show any election by the plahitiff to resort to the
principal, made under such circumstances as to discharge the agent.
It is true the form of the charge on the book was altered, anQ^ so
remained for some time. But no notice was given of this, and this
change was not acted upon, and no attempt was made to enforce the
payment of the claim against the principal. And, indeed, it appears
that the plaintiff was entirely ignorant who were the parties associated
under the name of the Feltonville Horse-shoe Company. lie could not
have elected to charge the Feltonville Horse-shoe Company under that
name as a legal principal, because there was no sucli legal body. He
could not be said to have elected to resort to the individuals composing
tliat company, as his debtors, because their names were wholly un-
known to them.

The rulings of the Superior Court upon the question of law raised
before that court were correct. Exceptions overruled.

COBB, Respondent, v. KNAPP, Appellant.
Court of Appeals of New York. 1877.

[71 N. Y. 348.]

Appeal from judgment of the General Term of the Superior Court
of the city of New York, affirming a judgment in favor of plaintiff,
entered upon a verdict. (Reported below, 10 J. & S. 91.)

The nature of the action and facts are sufficiently set forth in the
opinion,

W. A. Course7i, for appellant.

A/bert Matthews, for respondent.

Church, C. J. This was an action for the purchase-price of a
quantity of wheat alleged to have been sold by the plaintiff to the
defendant. The defence was that the defendant purchased the wheat
as agent or broker for C. A. Steen & Co. It seems to have been con-
ceded that the defendant did in fact purchase the wheat, as a broker,
for the firm named, who were his principals, and the main contention
on the trial was whether the defendant at tlie time of the purchase dis-
closed his principals, and whether he made the purchase in his own
name and upon his own responsibility. The onlv exception in the case
is upon a refusal to grant a nonsuit, and a request to direct a verdict
for the defendant. The court charged the jury that a broker, although
acting for another, makes himself personally liable if he contract in his
own name, and without disclosing the name of his principal, and that
this would be so, although the seller supposed at the time that he was
acting as a broker or agent for another; that the subsequent disclosure
of the principal, and the commencement of an action against him by

SECT, v.] COBB V. KNAPP. 727

the seller, would not discharge the broker from personal liabilit}'.
There were no exceptions to the charge, and I do not understand that
the learned counsel for the appellant claims that it was erroneous in
these respects ; but he insists, from the facts appearing in the case,
a nonsuit should have been granted or verdict ordered for the defend-
ant. There was a sharp conflict of evidence between the parties as to
what took place at the time of the contract. This court has no power
to review the facts any further than to ascertain whether they are
sufficient upon any construction, which the jurj- were authorized to give
them to justif\' a verdict, and whether any fact was conchisivel}' proved
which, as matter of law, entitled the defendant to a verdict. The
credibility of witnesses, the construction of ambiguous evidence, and
in general inferences to be drawn from circumstances, are exclusively
for the jury. These views have been so often reiterated by this court,
that it seems idle to refer to them, and quite unnecessary to cite
authorities to sustain them. It is natural that parties who feel
aggrieved by verdicts should struggle to have what the}' regard
as injustice remedied, and hence it is the almost dail}' experience of
this court to have questions of fact pressed upon our attention in some
form as questions of law, while, except in a few cases, the review of
facts is confined by statute to the Special and General Terms of the
courts below. Our jurisdiction is fixed bj- the constitution and the stat-
ute, and we have no authority to depart from their limitations. In this
case the evidence of the defendant, which was to some extent corrobo-
rated, if true, established clearl}- a case of non-liabilitv. He testified
that he purchased the wheat for Steen & Co., and so informed the
plaintiflf, and that it was understood that Steen &, Co. was to pay the
purcliase-price, and that the plaintiff did not make an}- claim against
him at the time, nor for several years afterwards. But for the purpose
of determining whether it was a legal error to den}' the motion for non-
suit, we must take the evidence of the plaintiff. If that was sufficient
to sustain the action, the jury had a right to adopt it. The plaintiff
testified that not only was the principal not disclosed, but that the
defendant expressly purchased the wheat on his own credit, and
directed that it be charged to him ; that it was charged to him, and
a bill made against him, which he repeatedly promised to pay. If the
jury adopted the plaintiff's evidence, it made a clear case of liability.
(Story on Agency, §§ 266, 267 ; 44 N. Y. 349.) It is argued that be-
cause the defendant stated that the property was for the "Blissville
Distillery," and was to be delivered there, that was a sufficient dis-
closure of the principal, but this is not conclusive. The plaintiflf states
that he did not know the proprietors of the distillery, and that the
defendant directed the property to be charged to him.

The case of Waddell 7x Mordecai (3 Hill [South Carohna Rep.] 22)
is cited. That was an action against the defendant to recover $100
paid on a contract executed by the defendant as agent of a brig, and
Bigned " M. C. Mordecai for the owners," The agent had paid the

728 COBB V. KNAPP. [chap. V.

money to his principals before the eoinmencement of the action, and
the court held that the plaintiffs could not recover. The learned judge
who delivered the opinion reasoned that the disclosure was sufficient,
but put the decision upon the ground mainly, that it appearing that the
defendant had acted in good faith and delivered the mone}' to his
principals, the equitable action for raonej' had and received could not
be sustained. The general current of authority is against the sufficienc}'
of such a signing to relieve the agent from liability, but it is unnecessary
to express an opinion of its correctness, because in this case the agent,
if the plaintiff's evidence is to be credited, contracted expressly on
his own credit. The other case depended on is Southwell v. Bowditch
(1 Law Rep. [Com. Pleas Div.] 100, and same case on Appeal,
p. 374). The contract signed by the defendant was : "I have this day
sold b}' your order, and for your account to my principals, five tons,"
&.C.. The Common Pleas Division held this to be a contract of
purchase by the broker, and that he was liable. The Court of Appeals
reversed the decision, holding that it was a contract of sale by the
broker, and not of purchase, and that it must be construed according
to its tenor like other contracts. This decision does not aid the
defendant.

The case of Ra3-mond r. The Proprietors of the Crown and Eagle
Mills (2 Met. 319) is in point for the plaintiff.^ . . .

The subsequent disclosure of the principals by the agent, and the
commencement of an action against them, is not conclusive of an
election to hold them responsible only. (2 Met. supra; 10 Queen's
Bench [L. R.] 57.) In the recent case of Beymer r. Bonsall (79 Penn.
R. 298), it was held that neither the agent nor principal in such a case
would be discharged short of satisfaction. The fact of commencing
the action and the statements in the complaint were proper for the jury
upon the contested fact, but they did not operate as a legal discharge.
It was claimed by the plaintiff that the action was commenced upon
the representation of the defendant, that a certain responsible person
was a member of the firm of Steen &, Co., which was untrue ; but, how-
ever this was, it did not discharge the defendant.

The case was properly submitted to the jur}-, and if the result is
wrong, it was the error of the jury. We are unable to find any
exception in the case justifying a reversal of the judgment, and
it must be aflSrmed.

All concur. Judgment affirmed.

* Here was stated Raymond v. Crown & Eagle Mills, 2 Met. 319. — Ed.

SECT. V.J ATKINSON V. COTESWOETH. 729

SECTION V. (continued).

(D) In an Action brought by the Agent against the Third Partt

ATKINSON V. COTES WORTH.
King's Bench. 1825.

[3 B. Sr C. 647.]

Assumpsit on a charter part}-, not under seal, whereby it was
mutually agreed between the plaintiff, commander of the &\i\^Agaphea,
then lying in the river Thames, and the defendant, that the vessel
should take a cargo to Pernambuco, and bring a cargo thence to Lon-
don or Liverpool, according to the directions of the charterers' agent
in the Brazils, and deliver the same, on being paid freight, at and after
a certain rate therein specified, by a good bill, payable at two months
from the day of final discharge. Breach, non-payment of freight.
Plea, non-assumpsit. At the trial before Abbott, C. J., at the London
sittings after last Trinity term, it appeared that the plaintiff, at the
time of making the charter part}', was the commander of the AgajyJiea,
whereof David Hodgins, then resident in Ireland, was owner. Before
the vessel returned to England, Hodgins, being dissatisfied with the
plaintiff, appointed one Bain as liis agent, to receive the freight, and
gave notice to the defendant to pa}- it to him, which he accordingly
did ; but before it was paid, the plaintiff demanded that it should be
paid to himself and not to Bain. Upon these facts the Lord Chief-
Justice non-suited the plaintiff, but gave his counsel leave to move to
enter a verdict in his favor for £80, which appeared to be due to him
from the owner. In Michaelmas terra Gurney obtained a rule accord-
ingly, and now

Snirlett and Campbell showed cause. The plaintifl" in this case was
merely the agent of the owner, and made the charter party for his
benefit. In the absence of any interference by the owner, he might
have claimed the freight from the defendant. But when the owner
intervened, and desired the freight to be paid to a third person, the
authority of the captain was at an end. He had not any prospective
lien for his wages, although, if he had received the money, ho might
then have set off the sum due for wages, had he been sued by the
owner for the money so received. If a factor receives the proceeds of
goods sold by him he has a lien on the money, but he cannot claim the
proceeds from the vendee, if his principal intervenes, and desires the
payment to be made to himself. Smith v. Plummer, 1 B. & A. 575, is
expressly in point.

Gurruy and CJtitty, contra. The case of Smith v. Plummer differs
materially from the present. It does not appear that any charter party

730 GIBSON V. WINTER. [CHAP. V,

was executed in that case between the captain and the defendant ; the
latter therefore had never contracted to pay freight to the captain. In
the present case, the plaintiff was the person who chartered tlie ship to
the defendant ; and it does not appear on the face of the instrument
that he was not owner ; the defendant must, therefore, be taken to
have contracted to pay the freiglit to him, and could not exonerate
himself from his liability by paying it to a third person.

Abbott, C. J. I am unable to discover an}' solid distinction be-
tween the present case and that of Smith v. Plummer. Upon the
authority- of that case, therefore, I am of opinion that the nonsuit was
right. The onl}' distinction now pointed out between the two cases is,
that in the present instance a charter party was entered into, and tliat
it does not appear that an^' such instrument existed in Smith v. Plum-
mer. Let us suppose that no charter part}- was made in that case,
then the freight would be made payable generally by the bill of lading,
signed by the commander of the vessel. Now the charter party en-
tered into by this plaintitf and defendant does not specif}' to whom the
freight was to be paid ; in that respect, therefore, the case is the same
as if the freight had been stipulated for by a common bill of lading.
The master of a ship has no prospective lien on the freight, and cannot
insist upon having it paid to himself, although a payment to him in the
absence of any notice by the owner to the charterer to withhold it,
would be a good and valid payment. For these reasons I think that
this rule must be discharged. Hule discharged.

GIBSON V. WINTER.
King's Bench. 1833.

[5 B. ^- Ad. 96.]

Covenant on a policy of assurance under seal, executed by the
defendants, two of the directors of the Indemnity Mutual Marine
Assurance Company, wherein, after reciting that the plaintiff liad
represented to the defendants that he was interested in, or duly author-
ised as owner, agent, or otherwise, to make the assurance, and had
covenanted to pay the premium, it was witnessed, that in consideration
of the premises, and of £80, the defendants covenanted with the plain-
tiff that the capital stock and funds of the company should be lial)le to
pay and make good all such losses as might happen to the subjeet-
matter of that policy in respect of the sum of £4000 thereby assured,
which assurance was thereby declared to be upon goods laden on
board the ship called The Courier., lost or not lost, at and from Rio de
Janeiro to a market in Europe. The usual clauses of the policy de-
scribing the risks, &c., were then set out. The interest in the goods

SECT, v.] GIBSON V. WINTER. 731

was averred to be in one Le Quesne, and a loss by the. perils of the
sea. Breach, nonpayment of the sum of £4000 by the defendants.
Plea (among others), that the defendants within a reasonable time
after the loss, and before the commencement of this suit, to wit, on,
&c., at, &c., paid to the plaintiff, out of the capital stock and funds of
the compan\', the said sum of £1000 in the said policy of assurance men-
tioned, according to the tenor and effect, true intent and meaning of
the said policy ; and upon this issue was joined. At the trial before
Lord Tenterden, C. J., at the London sittings after Hilary term, 1833,
the following appeared to be the facts of the case : The polic}' was
effected on goods the property of Mr. Le Quesne of Jersey, who
employed the plaintiff and his partner, one Poindestrie, insurance
brokers in London, for that purpose. A loss having occurred, a par-
tial adjustment to the amount of £3000 took place in 1829 between
the plaintiff and defendants, the defendants then knowing that Le
Quesne was the part}' interested in the goods insured. The defend-
ants on that occasion gave credit to the plaintiff for £1524 9s due from
him to them for premiums of insurance on ships and property of other
persons, in part payment of this £3000, and paid the balance, £1475
lis., in cash to the plaintiff. On the 17th of July the plaintiff
informed Le Quesne, by letter, that he had obtained a settlement of
£3000 on account, which sum would appear to the credit of his, Le
Quesne's, account at two months from that date. Le Quesne, in his
answer, said, " The same is placed in due conformity." In the first
week of October, 1829, the plaintiff became bankrupt, without having
paid over to Le Quesne either the amount received b}' him or that
allowed in account bj' the defendants, and this action was in fact
brought by Le Quesne in the name of the plaintiff to recover from the
defendants £1524 9s., on the ground that the plaintiff was authorized
to receive the amount of the loss in mone}' only, and that a payment
in an}' other wa}' was not binding on his principal. Lord Tenterden
was of opinion that that general rule ought to prevail, unless Le Quesne
had, in this case, recognized and adopted the mode of payment ; and
observed that if the mode of payment had been made known to Le
Quesne, and he had not, within a reasonable time, objected to it, he
must be taken to have adopted^it; that the question was, whether he
did know it. Gibson, his Lordship observed, in his letter of the 17th
of July, informed Le Quesne only that he had obtained an adjustment
to the amount of £3000, not that he had received actual payment of
that sum, and that that sum would, at the end of two months, be
placed to his, Le Quesne's, credit : Le Quesne, in his answer, after
adverting to the adjustment, said, "the same is placed in due con-
formity." And he told the jury to find for the defendants if they
thought Le Quesne meant to give credit for £3000 to Gibson, and to
accept him as his debtor instead of the defendants. The jury found
for the defendants.

A rule 7iisi was obtained for a new trial, on the ground that Le

732 GIBSON V. WINTER. [cHAP. V.

Quesne's assent was not proved, and that although in general where an
agent is employed to receive mone}- of a debtor, and the debtor pays
him mone}', the debtor is discharged, yet if the debtor does not pay in
money, but settles the account by writing off so much money as may be
due from the agent to him, the latter is not discharged.

Sir J. Campbell^ S. G., Sir J. Scarlett, and Tomlinson showed
cause,

R. V. Richards, contra. (Jur. adv. vult.

Denman, C. J. On the trial before the late Lord Tenterden, at
the sittings after Trinity term, the defendant had a verdict, on the
ground that Le Quesne had acquiesced in, and adopted the mode of,
payment to the plaintiff, and was bound by it. Mr. Pollock moved for
a new trial in the following term : The case was afterwards full}'
argued before us ; and if it had depended upon the propriet}- of the
verdict we should have thought it right to submit the case to the con-
sideration of another jur}', for we are by no means satisfied that there
was sufficient evidence of adoption by Le Quesne, as he was never
correctly informed of the real state of facts.

Another objection was, that as the covenant was with Gibson, and he
only could sue upon it, payment to him, in any mode by which he was
bound, would be a good payment as against Le Quesne ; and that as
the settlement with the plaintiff bound him, it equally bound Le Quesne
suing in his name. And upon full consideration, we are of opinion
that this objection is valid.

The plaintiff, though he sues as a trustee of another, must, in a
court of law, be treated in all respects as the party in the cause : if
there is a defence against him, there is a defence against the cestui que
trust who uses his name ; and the plaintiff cannot be permitted to say
for the benefit of another that his own act is void, which he cannot say
for the benefit of himself.

The following are the authorities which appear to us fully to warrant
this position. In Bauerman v. Radenius (in which the question was,
whether the admission by the plaintiff, who was clearly a trustee for
another, could be received in evidence). Lord Kenyon, 7 T. R. 668,
says : "If the question that has been made in this case had arisen
before Sir Matthew Hale, or Lords Holt or Hardwicke, I believe it
would never have occurred to them, sitting in a court of law, that they
could have gone out of the record, and considered third persons as par-
ties to the cause. If the plaintiffs may be taken to be off the record,
then they may be examined as witnesses ; and yet it is not pretended
they could have been examined. I cannot conceive on what ground
it can be said that they may be considered not as the parties to the
cause for the purpose of rejecting their admissions, and yet as the
parties to the cause for the purpose of preventing their being examined
as witnesses. I take it to be an incontrovertible rule, that an admis-
sion made by the plaintiff on the record is admissible evidence." So a

SECT, v.] GIBSON V. WINTER. 733

release by the plaintiff on the record suing for tlie benefit of another
was decided, in a case before Lord Mansfield (cited in Bauer man v.
Radenius, 7 T. K. GGG), to be a good answer at law, and Lawrence, J.,
expresses the same opinion in the case last mentioned ; and courts of
law have been in the habit of exercising an equitable jurisdiction on
motion, and setting such releases aside, or preventing the defendant
from pleading them, as in Legh v. Legh, 1 Bos. & P. 447, Payne v.
Rogers, Doug. 407, Jones v. Herbert, 7 Taunt. 421, and Abbott, C. J.,
in Scaife v. Johnson, 3 B. & C. 422, and many other cases, which
practice shows very clearly the opinion of the courts, that, but for
their equitable interference, the real plaintiff would be barred. In Craib
V. D'Aeth, 7 T. R. 670, note (b), the circumstances of fraud upon the real
plaintiff were replied ; but no objection appears to have been taken on
this ground, and the general practice is undoubtedly to apply specially
to the court. Again, in Alner v. George, 1 Campb. 392, where trus-
tees, for the benefit of creditors, sued in the name of the insolvent,
Lord EUenborough held that a receipt in full for the amount by the
plaintiflT was an answer to the action; and his Lordship said: " If a
motion had been made in term time to prevent the defendant frgm
availing himself of this defence, perhaps we might have interfered.
Sitting here, I can only look to the strict legal rights of the parties upon
the record ; and there can be no doubt that a receipt in full, where the
person who gave it was under no misapprehension, and can complain
of no fraud or imposition, is binding upon him. The plaintiff might
have released the action ; and it is impossible to admit evidence of his
attempting to defraud others."

In Jones r. Yates, 9 B. & C. 539, Lord Tenterden says: " "We are
not aware of an}- instance in which a person has been allowed, as plain-
tiff in a court of law, to rescind his own act, on the ground that such
act was a fraud on some other person, whether the part}' seeking to do
this has sued in his own name only, or jointly with such other person ; "
and therefore it was held, that where one of two partners disposed of
some of their effects in fraud of the other, both could not sue in a court
of law to recover for them, in an action of trover.

Upon principle, and upon these authorities, we are of opinion that
if there be a good defence against the plaintiff, there is a good defence
against Le Quesne suing in his name.

The, only remaining question is, whether there is a good defence
against the plaintiff.

Now, if the plaintiff was suing for himself, it is clear that the plea of
payment would have been proved ; for credit given to the plaintiff bj'
mutual agreement for the amount of the premiums was equivalent to
payment by the plaintiff to defendants of that amount on account of
the premiums, and a payment b}' the defendants to the plaintiff of the
same sum on account of the loss.

We therefore think that the defendants were no longer liable ; but as
this point, upon which we decide the case, was intended to have been

734 ISBERG V. BOWDEN. [CHAP. V.

reserved, if necessar}', b\' Lord Tenterden, in which case a non-
suit would have been directed, we think that a similar rule should be
now pronounced. Nonsuit to be entered.

ISBERG V. BOWDEN.

Exchequer. 1853.

[8 Exch. 852.]

This was an action on a charter party for freight. The declaration
stated that it was agreed b}' charter party, between the plaintiff, therein
described as the master of the ship Clio, and the defendant, that the
said ship should proceed to certain places in the sea of Azof (in the
charter party mentioned), and load a cargo of tallow, &c., to discharge
the same at certain ports (also mentioned) at a certain freight, one
half of such freight to be paid in cash on unloading and right deliver}'
of the cargo, and the remainder by approved bills on London, at three
months' date, or in cash, less discount, at £5 per cent per annum, at
merchant's option. The declaration then proceeded to state the load-
ing of the vessel with a complete cargo, and the unloading thereof at
the port of discharge, the amount of the freight, that the defendant had
notice, and that, although the defendant had paid the plaintiff one-half
the amount of the freight, 3et he had not paid the residue, or satisfied
the plaintiff's claim by approved bills.

The defendant pleaded, as to £87 6.S., parcel of such residue, that
the plaintiff entered into the charter party as the master of the vessel
for and on behalf and as agent of one Carl Gustaff Wolff, the owner ;
and that the plaintiff has no beneficial interest in the charter party, and
has no lien whatever on the residue of the freight or any part thereof;
and that the plaintiff has brought this action solely as agent and trustee
of the said owner ; and that at the time the residue of the freight be-
came due and payable, the defendant gave the plaintiff notice that he
elected to pay the residue of the freight in cash less discount, at, &c.,
and not by bills ; and further, that at the time when the residue of the
freight became due and payable, the saidC. G. Wolff was and still is in-
debted to the defendant in an amount equal to the said sum of £86 Qs.
The plea concluded by offering to set off that amount in the usual way.

Demurrer, and joinder.

The demurrer was argued in last Easter Term (Ma}- 4) by

Unt/iank, in support of the demurrer.

MelUsh, contra.

Martin, B.^ Mr. Unthank, in support of the demurrer, contended,
that, as the plea was bad at common law, and could only be supported

1 After stating the case. — Ed.

SECT, v.] ISBERG V. BOWDEN". 735

by virtue of the statute of set-off, 2 Geo. 2, c. 22, s. 13 ; 8 Geo. 2, c.
24, s. 5, inasmuch as the plaintiff in the action was not the debtor to
the defendant, the ease was not within the statute. Mr. MelUsh, on
the other hand, admitted tliat the plea was bad at common law, but
contended that the statute had received a construction in several cases,
which he cited, and to wliich we shall presently refer ; and that, upon
such construction, the plea could be maintained.

The statute enacts, "• That where there are mutual debts between
the plaintiff and the defendant one debt may be set against the other."
Tiiis is the whole enactment as applicable tg the present case, and
upon its true construction the question depends. If the words of the
statute had been, that where there were " mutual debts" the one might
be set against the other, the argument of Mr. Mellish would have had
more weight ; but those are not the only words, for the debts are to be
mutual debts between the plaintiff and the defendant, and there is no
debt here due from the plaintiff at all ; and except the words " between
the plaintiff and the defendant" can be excluded, the plea cannot be
maintained.

In support of his view, Mr. Mellish cited the case of Coppin v. Craig,
7 Taunt. 243, where a plea in substance the same as the present was
pleaded. The plea was not demurred to, and its validity or non-validity
in point of law seems never to have been considered at all, and the
matter decided by the court was quite collateral to the present question.
So also a case of Jarvis v. Chappie, 2 Chit. Rep. 387, where a similar
plea was pleaded, was relied on. That was an action b}' an auctioneer
for goods sold and delivered, and the defendant pleaded that the plain-
tiff sold as agent for one Tappinger, who was indebted to the defend-
ant, which debt was pleaded as a set-off. The plaintiff replied, that
the goods were not the goods of Tappinger, and were not sold by the
plaintiff as his agent ; upon which issue was joined. The plaintiff was
nonsuited at the trial, and the application to the court was to set aside
this nonsuit. It is at once, therefore, obvious that the present question
could not, by possibilit}', have arisen under such circumstances.

The case of Carr v. Hinchliff, 4 B. & C. 547, and several other cases
decided on the same principle, were also cited. It is quite true that
there are expressions in the judgments of the learned judges in that
case which seem to support Mr. Mellish's argument ; but the real
ground upon which that and man}' other cases proceeded, decided on
the same point, is, that where a principal permits an agent to sell as
apparent principal, and afterwards intervenes, the bu3-er is entitled to
be placed in the same situation at the time of the disclosure of the real
principal, as if the agent had been the real contracting party, and is
entitled to the same defence, whether it be by common law or by
statute, payment or set-off, as he was entitled to at that time against
the agent, the apparent principal. The cases of Carr v. Hinchliff,
George v. Claggett, Rabone r. Williams, &c., are all explained on that
principle in Tucker v. Tucker, 4 B. & Ad. 750. By this case, and that

736 KHOADES V. BLACKISTON. [cHAP. V.

of Wake v. Tinkler, 16 East, 36, and a case referred to by Marryatt
(Lane v. Chandler, 7 East, 153), the cases of Bottimlej' v. Brook,
1 T. R. 622, and Rudge v. Buck, 1 T. R. 622, must be considered as
entireh' overruled ; and the case of Tucker v. Tucker goes far to show
that the statute of set-off is confined to the legal debts between the
parties, the sole object of the statute being to prevent cross actions
between the same parties.

The case of Stackwoad v. Dunn, 3 Q. B. 822, was cited on behalf of
the defendant. It is enough to say, that this case goes much beyond
that. In that case, it seems to have been ruled that, the demurrer
having confessed the truth of the pleas, the parties to the suit ought to
be considered those who are alleged in the plea, and so the set-off was
between the parties. The cases cited in Story on Agenc}', page 361,
sect. 409, as the authorities for what is there stated, are those already
adverted to from 7 Taunt. 237 and 243, and have been shown not to
support the general proposition.

In this case the part}' whom the defendant agreed to pa}' was the
plaintiff, but the plaintiff was not the party who agreed to pay the de-
fendant the debt sought to be set off; and we think that, looking at
the plain words of the statute, we best give effect to the true rule now
adopted by all the courts at Westminster for its construction, by hold-
ing that, inasmuch as the debts are not mutual debts between the
plaintiff and the defendant, the one cannot be a set-off against the
other.

This is acting upon the rule as to giving effect to all the words of the
statute, a rule universally applicable to all writings, and which, we
think, ought not to be departed from except upon very clear and strong
grounds, which do not, in our opinion, exist in this case.

Judgment for the plaintiff }

RHOADES V. BLACKISTON and others.
Supreme Judicial Court of Massachusetts. 1871.

[106 Ma^s. 334.]

Contract for breach of an agreement to sell and deliver coal. At
the trial in this court, before Colt, J., the plaintiff testified that after
the making of the alleged agreement, and its breach by the defendants,
he was adjudged a bankrupt ; " that he made the agreement while act-
ing as agent of Alonzo V. Lynde, under authority from him, and made
it as agent ; that he owed Lynde a large sum of money, and had trans-
ferred his coal business to him as security for the debt ; that it was
agreed between them, that Lynde was to furnish the capital, and was

1 Ace: Alsop V. Caines, 10 Johns 396 (1813). — Ed.

SECT, v.] RHOADES V. BLACKISTON. 737

to receive all the profits of the business, except enough to support the
plaintiff and his family, until the debt should be paid ; that after the
debt was paid the property was to be his, and the profits of the busi-
ness ; and that he had no property in the coal, or interest other than
as stated, and his own money was not invested in the business ; but
that he was to have his living out of the business until the debt was
paid."

The defendants objected that the plaintiff could not maintain the
action, and the judge reported the case for the determination of the
full court, if the court should be of opinion that the plaintiff could not
maintain the action, judgment to be for the defendants, otherwise the
case to stand for trial.

T. H. Sweetser and C. Abbot, for the plaintiff.

W. A. Field, for the defendants.

Colt, J. It is a well-established rule of law, that when a contract,
not under seal, is made with an agent in his own name for an undis-
closed principal, either the agent or the principal may sue upon it. If
the agent sues, it is no ground of defence that the beneficial interest is
in another, or that the plaintiff, when he recovers, will be bound to
account to another. There is an additional reason for giving this
right to the agent, when he has a special interest in the subject matter,
or a lien upon it. But the rule prevails when the sole interest under
the contract is in the principal. The agent's right is of course subor-
dinate to and liable to the control of the principal, to the extent of his
interest. He may supersede it by suing in his own name, or otherwise
suspend or extinguish it, subject only to the special right or lien which
the agent may have acquired. Colburn v. Phillips, 13 Gray, 64. Fair-
field V. Adams, 16 Pick. 383. Story on Agency, § 403.

In this case, the contract relied on was made by the plaintiff in his
own name, as agent for an undisclosed principal, who does not now in
any way interpose. But admitting the law of principal and agent as
that stated, the defendants further contend that the plaintiff's right of
action passed to his assignees in bankruptcy, who were appointed in
proceedings commenced after the alleged breach. It appears that the
plaintiff made the contract in the course of a business which he was
carrying on for Alonzo V. Lynde, and which he had previously trans-
ferred to Lynde as security for a debt, with the agreement that after
the debt was paid the property was to be his with the profits of the
business, Lynde furnishing all the capital and receiving all the profits,
except enough for the support of the plaintiff and his family, until the
debt should be paid. And it is claimed that upon these facts the
plaintiff had such a legal and equitable interest in the contract that
it must pass by the bankruptcy proceedings to the assignees.

Assignees in bankruptcy do not, Uke heirs and executors, take the
whole legal title in the bankrupt's property. They take such estate
only as the bankrupt had a beneficial as well as legal interest in, and
which is to be applied for the payment of his debts. To a plea that

738 KHOADES V. BLACKISTON. [CHAP. V.

the plaintiff is a bankrupt, and that all his estate vested in his as-
signees, it is a good replication that the whole beneficial interest in the
contract or demand in suit was vested by prior assignment in a third
party, for whose benefit the suit is prosecuted. If, however, the bank-
rupt has any beneficial interest in the avails of the suit, then the whole
legal title vests in his assignee, and the action must be in his name,
for there cannot be two legal owners of one contract at the same time.
Webster V. Scales, 4 Dougl. 7. Winch v. Keeley, 1 T. R. 619. Car^
penter v. Marnell, 3 B. & P. 40.

In most of the English cases in which these rules have been applied,
there was an assignment of a chose in action by the bankrupt to a
third party, made before the bankruptcy, and they have mainly turned
on the question whether the transfer was absolute or only as security
for debt, and if as security only, then further, on the question wnether
the security was of greater value than the debt secured, at the time of
the bankruptcy. The case of D'Arnay v. Chesneau, 13 M. & W. 796,
809, relied on at the argument, was of this description, and Baron
Parke there declared " that if the debt to be secured was less than the
debt assigned, and there was nothing more than a simple assignment
of the debt as a security, the right of action would vest in the insol-
vent's assignees. In such a case they would have an immediate inter-
est in the sum to be recovered, from which benefit to the creditors
might result, and they would not have been bound to refund all they
had recovered to the equitable assignee of the debt (their cestui que
trust), which is the proper criterion." Dangerfield v. Thomas, 9 Ad.
& El. 292.

The court are of opinion that the rule in these cases, if ever appli-
cable to a case where an agent sues upon a contract made in the course
of his agency, where the suit is subject to the control of the principal,
cannot be applied to defeat the plaintiff's action here. The pledged
property consisted of a business to be carried on with the capital of
the party to whom it was transferred. The contracts made in the
course of it were the contracts of the principal. The agent had no
immediate beneficial interest in them. His interest was only in the
future profits, and that contingent on their being sufficient to pay the
debt he owed. The contract of Lynde to restore the property to the
plaintiflf" was executory, and there was no claim that the contingency
had happened upon which the business and property were to become
the plaintiff's. The inference from the facts reported is, that it did
not. The support which he was to have for himself and his family was
plainly in compensation for his agency in the business. And there is
nothing to show that the creditors in bankruptcy have any valuable
interest in the contract declared on. Parnham v. Hurst, 8 M. & W.
743. Ontario Bank v. Mumford, 2 Barb. Ch. 596. 3 Parsons on
Contracts, 479. Case to stand/or trial.

SECT, v.] BLISS V. SNEATH. 739

BLISS V. SNEATH.
Supreme Court of California. 1894.

[103 Cnl. 43.]

Appeal from a judgment of the Superior Court of San Mateo
County.

Tlie facts are stated in the opinion.

G. W. McEnerneij and Stanly, Hayes & Bradley, for appellant.

B. Waters^ for respondent.

Temple, C. This is an appeal from a judgment for plaintiff upon
the pleadings.

The action is for rent alleged to be due upon an indenture of lease.
It is contended that the complaint does not sufficiently aver demand
and nonpayment. The allegation is: "That the plaintiff has de-
manded the payment of said sum, l)ut to pay the same, or an}' part
thereof, the defendant refused, and still refuses." A general demurrer
was interposed, which apparently was never passed upon, but was
waived b}' answering. The objection not having been taken b}' special
demurrer, the pleading must now be held sufficient. Grant v. Sheerin,
84 Cal. 197.

The defendant answered, admitting the demand of plaintiff, but
setting up, as a partial defence, a claim against the plaintiff's wife.
The answer avers that, in all the transactions set forth in the com-
plaint, plaintiff acted solely and wholly as the agent of Martha S. Bliss,
his wife ; that the present action is prosecuted bj- him as agent of said
Martha S. Bliss, and for her sole and exclusive use, benefit, and be-
half The answer then proceeds to aver a demand against said Martha
S. Bliss, which existed at the time the action was commenced, and
asks that such demand be set off against and deducted from the claim
of plaintiff, and admits plaintiff's right to take judgment for the excess
of plaintiff^s demand over and above his claim against Martha S. Bliss.
On motion, plaintiff obtained judgment for the full amount of his de-
mand without trial.

The sufficiency of the allegations in the answer must be tested by
the same rule applied to the complaint. If the allegations in the an-
swer would be sufficient in a complaint to sustain a judgment, they are
sufficient here. Judged by this rule, the allegation is sufficient to
show that plaintiff is suing merely as the agent of his wife. The de-
fence is not reall}' a counterclaim. That is a demand which may be
the basis of a judgment against the plaintiff.

Here the matter pleaded is purely defensive to the demand sued on.

" ' Where the agent sues in his own name,' says Mr. P^vans (Evans,
Ag. 387), ' the defendant ma}' avail himself of all defences which would
be good at law and in equity : (a) as against the agent, who is the

740 BLISS V. SNEATH. [CHAP. V.

plaintiff on the record, or (b) as against the principal, for whose use
the action is brought.'" Mechem, Ag. § 7G2.

It is said, however, that, even admitting this principle, it cannot
apply here, because the defence set up is a debt created or arising
from a statutory liabilit}-, and is not, therefore, a cause of action aris-
ing upon a contract.^ . . .

I think the judgment should be reversed, and a new trial had.

Haynes, C, and Searls, C, concurred.

For the reasons given in the foregoing opinion, the judgment is re-
versed, and a new trial ordered.

McFarland, J., Fitzgerald, J.

De Haven, J., concurring. I concur in the judgment. Assuming
the matters alleged in the answer to be true, it was error to give a
judgment in favor of plaintiff for the full amount demanded in the
complaint.

A Passages dealing with this contention are omitted. — Ed.

SECT I.] CHILD V. MORLEY. 741

CHAPTER VI.
THE PRINCIPAL'S DUTIES TO THE AGENT-*

SECTION I.

Reimhursement or Indemnity.

CHILD V. MORLEY.

King's Bench. 1800.

[8 T. R. 610.]

Assumpsit for money paid, laid out, and expended for the use of tlns
defendant ; upon an account stated ; for worli and labor as a broker
for the defendant, and on a quantum meruit; to which the defendant
pleaded the general issue. At the trial before Lord Kenyon at Guild-
hall, the case appeared to be this : —

Morley, being possessed of £10,000 three per cent consolidated
stock, applied to Child, a stock-broker, to sell it for him for the next
opening, the stock being then shut. The defendant's direction to the
plaintiff was to sell at 60 if he could; if not, for 59 and a fraction.
Child accordingly bargained with two persons, Rutt and Shepherd, for
the sale of this stock at 59 and a fraction for the next opening, not
disclosing to them at the time the name of his principal. In the mean
time and before the transfer da}- the stock rose to 62. The defendant
being afterwards called upon to make good his engagement to the pur-
chasers refused so to do, alleging that the plaintiff had exceeded his
authority in selling at too low a price. Whereupon the plaintiff, con-
sidering himself bound as the broker who had contracted with Rutt and
Shepherd for the sale of the stock to make good his engagements to

^ The principal's duty to remunerate the agent is treated in works on Con-
tracts and Quasi-Contracts. See also Osborn v. The Governors of Guy's Hospital,
2 Str. 728 (1725); Taylor v. Brewer, 1 M. & S. 290 (1813); Davies v. Davies, 9 C. &
P. 87 (1839); Bryant v. Flight, 5 M. & W. 114 (1839) ; Baxter i'. Gray, 3 M. & G.
771 (1842), s.c. 4"Scott, N. R. 374; Oxford v. McFarland, 3 lud. 1.56 (is'si) ; Cook v.
Fiske, 12 Gray, 491 (1859); Lockwood v. Levick, 8 C. B. x. s. 603 (1860); Hill v.
Williams, 6 Jones' Eq. 242, 248-249 (1861); Morris v. Barnes, 35 Mo. 412 (1865);
Scully V. Scully, 28 Iowa, 548 (1870) ; Bixby v. Moor, 51 N. H. 402 (1871), s.c. Wam-
baugh's Cases for Analy.sis, 160; Parker v. Walker, 86 Tenn. 566 (1888) ; Gilchrist v.
Clarke, 86 Tenn. 583 (1888); Holden i-. Starks, 159 Mass. 503 (1893). — Ed.

742 CHILD V. MORLEY. [CHAP. VI.

them, paid them the difference of the price of the stock when bargained
for, and when it ought to have been transferred, amounting to £576
8s., and brought this action against Morley to recover that sum, and
a further sum of £12 \Qs. for his commission as broker on tlie sale
of the stock. And the jur3', under Lord Kenyon's direction, found
their verdict for the amount of tlie two respective sums, discriminating
at the time between them.

A rule was obtained b}- law in the last term, calling on the plain-
tiff to show cause why the verdict should not be set aside on several
grounds. 1st, Because the transaction for the sale of the stock, as
between the plaintiff and Rutt and Shepherd, was illegal and void
within the statute 7 Geo. 2, c. 8, against stock-jobbing; and the pur-
chasers could not have enforced the contract against the plaintiff, there
being no stock in his name to be transferred. 2dl3, Because no per-
son can make another his debtor by a voluntary payment of the other's
debt due to a third person ; more especiall}' in this case, when b}' the
defendant's refusal to pay the money to the purchasers of the stock
there was a direct notice to the plaintiff not to pay it. 3dly, Because,
considering the relation in which these parties stood to each other,
that of principal and agent, the plaintiff as agent had no right to pay
monej' for his principal against his consent, in order to found an action
against him, even admitting that the principal was bound to pay it to
third parties ; for the agent in these transactions is the onlj- witness
for his principal, and the latter thereby loses the benefit of his testi-
mony. 4thly, Because at any rate this form of action was miscon-
ceived ; if the plaintiff had been damnified b}- the defendant's neglect-
ing to transfer the stock, he should have brought an action on the case
for the special damage.

Erskine^ Garrow, and Henderson now showed cause against the
rule.

Lord Kenton, C. J. There is no pretence to sa}' that this is a stock-
jobbing transaction within the statute. The parties intended a bona
fide sale of stock, of which Morle}', on whose account it was sold, was
then actually possessed ; and the question is whether this may not be
done through the intervention of a broker though he does not disclose
his principal at the time ; of which no doubt can be made. Nothing
can be more unjust than the defence which has been set up to the
whole of this demand ; and that consideration may at first view of the
case have tended to warp my judgment. But I cannot perceive what
benefit the defendant can propose to himself by such conduct ; for the
court have no doubt but that at all events the verdict must stand for the
£12 10s., the amount of the plaintiffs commission as broker, under
the count for work and labor. And I think that some method or other
will be found for making the defendant pay the amount of the differ-
ence which the plaintiff has honorably settled on account of his prin-
cipal's not making good his engagement. But as to that part of the
demand, there is a diflBculty in the form of action ; and perhaps ie

SECT. I.] CHILD V. MORLEY. 743

would have been better framed ex delicto than ex coyitractu. I admit
that no man can h\ a voluntarj^ payment of the debt of another make
himself that man's creditor, and recover from him the amount of the
debt so paid ; but what pressed on mj' mind was that the plaintiff was
under some sort of compulsion to pa}' the differences. We know that
it is the common practice on the Stock Exchange for the broker who is
employed to sell stock not to disclose the name of his principal at the
time of making the bargain ; and the buyer deals with him upon the
confidence of his character. Therefore I considered tliat his character
was at stake in making good the engagement he had entered into on
behalf of his principal ; and having been placed in that situation of
responsibilit}- by the act and procurement of the defendant, I con-
sidered that his i)aying the differences under sucii circumstances was
not altogether a voluntar}- act. but done under the pressure of a situa-
tion in which he was involved b}' the defendant's breach of faith. I
remember a case in Rolle's Abridgment where a party met to dine at a
tavern, and after dinner all but one of them went awa}' without paying
their quota of the reckoning, and that one paid for all the rest ; and it
was holden that he might recover from the others their aliquot propor-
tions. If the plaintiff here had been bound as guarantee for the
defendant to the purchasers of the stock, there could have been no
doubt but that he might have recovered his whole demand in this
action. However, upon the whole, considering the difficulties of the
case in its present shape as to the sum recovered for the differences, I
think it would be better to frame another action for this part of the
demand better adapted to the nature of the case.

Laavrence, J. My difficulty is this : if Child contracted to sell the
stock on his own account, then the case falls directh' within the prohi-
bition of the Act of Parliament, because he really was not possessed of
the stock so bargained to be sold. But if he acted as broker or agent
for Morley, which he legally might, and his contract would then be
valid within the statute, he ought in that case to have permitted Morlej'
to settle or not with the purchasers as he pleased ; and the plaintiff
should not have taken upon himself to pa}' the mone}' without the con-
sent of his principal, more especially after that principal had refused
to pay it. In this general view of the case the payment by the plaintiff
would be at his own peril, and he could not recover in this action as
for money paid to the use of the defendant. The onl}- ground on
which (as it seems to me) the verdict in this case could have been sup-
ported for the whole demand was b}' considering the plaintiff as stand-
ing in the situation of a guarantee for the sale of the stock to the
purchasers. Taking the transaction as now disclosed to be legal within
the statute, there could be no objection to the plaintifTs becoming the
guarantee of such a legal contract ; and then if he had paid the money
on the default of the defendant, he would have stood in the common
situation of a suret}' paying mone}' for his principal ; and it might
have been a question whetlier, if by the general usage of the Stock

744 HUKST V. HOLDING. [CHAP. VI.

Exchange brokers contracting for the sale of stock and not disclos-
ing the names of their principals were considered as iniplieilly i)ledg-
ing their own credit for the faithful performance of the contract, such
general usage might have been deemed equivalent to an express guar-
antee on the part of the plantiff, and then the money paid by him in
default of his principal would have been money paid to the use of the
defendant. But difficulties occur in this view as the facts now stand,
and therefore it seems more proper that the verdict should only be
entered up for the amount of the brokerage.

Per Curiam, Ordered accordingly}

HURST V. HOLDING.
Common Pleas. 1810.

[3 Taunton, 32.]

This was an action for money lent, and upon an account stated.
Upon the trial of the cause at the Guildhall Sittings after Hilary Term,
1810, before Mansfield, C. J., the proof was, that the defendant, who
resided at Liverpool, having written to the plaintiff on the 7th of
February to purchase him 33 bags of damaged Surat cottons at 2Sd.
per lb., to be paid for in one month, with the usual East India Com-
pany's allowance ; the plaintiff, on the 9th, bought cottons for less than
the price named, to be paid for in one month; and at the time of the
sale paid £87 12s. for custom-house duties, and £61 more, as the
allowance to the East India Company, and on the 11th sent the cot-
tons to the Axe Inn in Aldermanbury, to be forwarded by the Pad-
dington Canal to Liverpool, but with instructions to deliver them to
tlie plaintiff's order. They were forwarded on the 18th from the Axe.
Whitle}', who had sold the cottons, afterwards hearing rumors disad-
vantageous to the credit of the defendant, applied to the plaintiff to
stop the cottons, who, in consequence, on the 27th, gave directions at
the Axe Inn that the cottons should not be delivered to the defendant
otherwise than upon payment of the price. The person who received
this order wrote to his agent in Liverpool accordingly on the same day,
and the goods did not arrive in Liverpool till the 10th of March, when
the month's credit was expired. The carriers at Liverpool, by the
plaintiff's direction, upon the day after their arrival, tendered the cot-
tons to the defendant, upon payment of the money, but he refused to
accept them or pay for them : upon which the plaintiff, who had in the
mean time, on the llth of March, paid Whitlej- £407 12s. 4d. for the
price of the cottons, bj' the same agent sold them on the 19th of Ma}'
by auction at Liverpool, for the account of the defendant. It was in

1 See Taylor v. Stray, 2 C. B. n. s. 175 (Ex. Ch., 1857). — Ed.

6ECT. I.] HUKST V. HOLDING. 745

evidence, that the plaintiff was in the practice of buying cottons, as
broker, for the defendant ; and it was alleged that his usual course of
dealing was to send them to the Axe in Aldermanbur}-, to be for-
warded to Liverpool to be delivered to his own order. This action was
brought to recover the price of the cottons, which the plaintiff had paid
to Wliitley ; the duties he had paid at the custom-house ; the allow-
ances he had paid to the East India Company ; and his own commis-
sion for purchasing them. Mansfield, C. J., thought he was not
entitled to recover either ; and the jury, under his direction, found a
verdict for the defendant, with liberty to move to enter a verdict for
the plaintiff for £87 12.s'., the amount of the duties paid at the custom-
house, if the court should be of opinion that he was entitled to recover
that sum.

Vuug/ian^ Serjt., in Easter Term, moved, as well upon the point
reserved as upon the ground that the plaintiff was entitled to recover
the commission, which he iiad earned by making the purchase, at a
time anterior to any misconduct in himself, and which he could not
forfeit by what happened afterwards.

Shepherd and Best, Serjts., on this da}', showed cause against the
rule on both grounds : the goods being bought at a month's credit, the
purchaser is entitled to insist upon their being delivered in the ordi-
nary course of trade ; but contrary thereto, the goods are detained by
the plaintiffs procurement until the month is expired, and are directed
to be then delivered only upon payment of the price. The broker is
not entitled to his commission unless he does his dut}-, which he vio-
lates by stopping the goods from coming to his employer's hands. If
Whitley, of himself, without the aid of the plaintiff, had stopped the
cottons, the plaintiff might have recovered ; but, under the present cir-
cumstances, if he were agent for both parties, yet if he forwarded the
interests of the one b}- sacrificing those of the other, he is not entitled
to recover commission against the latter. The same reason prevents
his recovering the duty, for if he were entitled to recover it against
the defendant, he would receive it twice over ; for he is already repaid
the duties, inasmuch as he has sold the goods, increased in value by the
amount of the duties paid, and has received the price, and therein
the amount of the duties, from the last purchaser. Even if the de-
fendant, and not the plaintiff, had prevented the bargain being com-
pleted, the plaintiff could not have recovered commission, which is not
due till the completion of the contract ; though he might have main-
tained an action against the defendant for preventing him, as broker,
from completing a purchase upon which he would have been entitled to
commission.

Vaiighan in support of his rule. The plaintiff pays the sums of £87
125. for the duties, and £61 for allowances to the East India Company,
on the 10th of February, upon the taking the goods from the India
house, in the due discharge of his duty, in pursuance of the instruc-
tions given him on the 7th. lie was bound to pay these sums ; for he

746 HUUST V. HOLDING. [CUAP. VI.

could not otherwise get the cottons out of the warehouse. He was on
that day therefore entitled to be repaid these sums ; it was a vested
right. On the lltli he delivered the goods at the Axe, whicli was a
delivery to the defendant, whence the}' are forwarded on the 18tli ; and
although on the 27th the plaintiff gives directions at the Axe that the
goods shall not be forwarded, yet the}' were then out of the power
of tlie carriers there, and tlie order was inoperative. No action could
be maintained against the plaintiff for misconduct ; but if any could,
yet that would not vacate his right to recover these debts already
incurred ; and as it is not the course of trade for brokers to charge
interest on the sums they advance, his only compensation for these
advances is in the shape of the commission, which is therefore due. It
was not in proof that the goods were stopped in consequence of the
imprudent order given on the 27th, and fraud is not to be inferred.

Mansfield, C. J. I do not know that the plaintiff is entitled even
to the duties, though it may be a very hard case. For what is the
case ? The plaintiff buys cottons according to his instructions, and
sends them, and by some accident the}' do not set out till the 18th.
It is in evidence that the} were stopped on the canal, the plaintiff says,
by the seller ; but if so, the seller could have known where to stop
them only by communication with the plaintiff; when they arrive and
are offered to the defendant lie will not take them, the price had then
fallen. The plaintiff writes on the 27th, the price of the goods not
then being payable, to stop them, unless upon payment of the money.
I have no note of any evidence that the plaintiff had previously sent to
Liverpool other goods directed to his own order. On the 11th the plain-
tiff pays voluntarily for the goods, not in consequence of any direction
from the defendant. So long after as the 19th of May, the plaintiff
himself takes the goods and sells them. If he did it out of honor to
save the defendant's credit, the utmost he could do would be, on pay-
ing Whitley, to be permitted to sue the defendant in Whitley's name
for the price of the goods. Instead of that he pays the money, and
endeavors, in a short way, to recover for money paid. Having himself
taken possession of the goods, what right has he to charge the commis-
sion ? As for the duties, he is paid them in the increased price of
goods which he receives.

Heath, J. The difficulties under which the plaintiff labors, he has
brought on himself by deserting his duty as a broker.

Lawrence, J. It was admitted by the plaintiff's counsel, that if,
through the misconduct of the plaintiff, the defendant does not get the
goods, the defendant is not bound to pay for them. Now, as far as
the evidence goes, it appears that the goods arrived on the 10th of
March ; that on the 11th the plaintiff took to the goods, and afterwards
sold them. There is, therefore, every reason to believe that the non-
delivery was occasioned by the act of the broker himself.

Chambre, J. Certainly there was no delay in making the purchase ;
but the delivery at the Axe is not a delivery to the defendant ; because

SECT. I.] D'ARCY V. LYLE. 747

the plaintiff sends them to be delivered to his own order, and before
their arrival at Liverpool he sends orders that they shall not be delivered
to the defendant till the tinje of credit is up : having then taken the
goods, how can he possibly* recover either for commission or for the
money paid in his own wrong for the goods ?

Mule discJiarged}

D'ARCY V. LYLE.
Supreme Court of Pennsylvania. 1813.

[5 Binn. 441.]

This was an action of indebitatus assumpsit, in which the plaintiff
declared for money paid, laid out, and expended, money lent and
advanced, money had and received, and work, labor, and services.
It was tried before Yeates, J., at a N'isi JPrius in December last,
when a verdict was found for the plaintiff, damages §3,500 ; and upon
a motion by the defendant for a new trial, his Honor reported the facts
to be as follows : —

On the 4th of August, 1804, the plaintiff, who was then about to
proceed to Cape Fran9ais upon commercial business, received from the
defendant a power of attorney to demand from Suckley & Co. at the
Cape, who had been the defendant's agents, all his goods remaining
unsold in their hands, and to settle by compromise or in any manner
the plaintiff thought most beneficial, all accounts of the defendant with
that house. On the voyage, the plaintiff, in consequence of being
chased by a French privateer, threw overboard, among other papers,
the power of attorney. He stated this fact to Sucklev & Co. upon his
arrival, who consented to deliver up the goods, upon his promising to
pay a balance which they alleged to be due from the defendant ; and
this being assented to by the plaintiff, they proceeded to deliver the
goods. Before the deliver}- was complete, one Thomas Richard.son
attached them with other goods of Suckley &. Co., to secure a debt due
by them to the house of Knipping & Steinmetz of Charleston, for
whom he was agent. The plaintiff interposed a claim on behalf of the
defendant ; and on the 26th of November, 1804, the Chamber of Jus-
tice decreed that he should retain possession of the merchandise, on
his entering into a recognizance in the sum of 82,089, conditioned to
produce within four months an authentic letter of attorney from the
defendant, or on default to pay Richardson as the agent of the Charles-
ton house, the said amount, whicli was the invoice value of the mer-
chandise. The recognizance was given on the 30th of November ; and

» See Capp v. Topham, 6 East, 392 (1805). — Ed.

748 d'arcy v. lyle. [chap, vl

on the 6th of December following the plaintiff personally appeared in
the clerk's office of the Civil Tribunal where it was entered, and caused
an act to be made, setting forth that his recognizance or submission in
November should be null, as he had received the power of attorney,
and notified it to Richardson, In November, 1805, the plaintiff, having
sold the goods, forwarded an account current to the defendant, making
the net balance $2,509.60. On the 1st of December, 1805, he by letter
directed the defendant to pay over to a friend all his funds, after
deducting the balance due to himself; and on the 19th of April, 1806,
having had some misunderstanding with the defendant, he wrote his
final letter, closing his correspondence, and declining an}' further con-
cern with him. Up to this time Dessalines was Emperor, and favored
the plaintiff.

In March, 1808, the powers of government at the Cape being in
Christophe, who was the friend of Richardson, and the plaintiff con-
tinuing to reside as a merchant at the Cape, Richardson instituted a
suit against the plaintiff in the Tribunal of Commerce, to recover from
him the value of the goods, which by the decision of the Chamber of
Justice had been decreed to him as the defendant's agent in 1804.
The amount of the claim was $3,000, which by a memorial presented by
the plaintiff to the tribunal (no part of the record of this court being
produced) appeared to be founded on an alleged promise of the plain-
tiff to pay so much for Suckley ; but in the memorial the plaintiff
denied the promise, asserted that this was no other than the transac-
tion about the security to produce a power of attorney, that he was no
longer an agent for Lyle, and had settled the matter with him, and
that Richardson was endeavoring to make them change the just and
wise decision made more than three years before. On the 14th of
May the Tribunal of Commerce gave judgment for D'Arcy. Richard-
son appealed to the Civil Tribunal of the first district of the Province
of the North, sitting at the Cape. That court on the 1st of June con-
firmed the sentence of the lower court. Richardson had previously
applied to the President, Christophe, who interfered in tile proceed-
ings, and on the 31st of May sent an order for the imprisonment of
D'Arcy's lawyer, who was tied and sent to the fort. To this another
order succeeded, that D'Arcy and Richardson should fight each other,
and that the issue of the combat should be fatal to one or the other.
A friend of D'Arcy waited upon Christophe, remonstrated against the
order, and procured the commander of a British vessel of war, then in
the harbor, to do the same ; but the President insisted upon the com-
bat, unless D'Arcy would pay to Richardson the sum claimed as the
value of the goods. D'Arcy having determined not to pay the money,
the parties met, but neither of them was injured. On the same day
another order came from Christophe, that D'Arcy and Ptichardson
should again fight at six o'clock on the following morning, and that
he, Christophe, would be there himself to see the affair settled. The
friends of D'Arcy, deeming it dangerous for him to remain longer at

SECT. I.] D'ARCY V. LYLE. 749

the Cape, prevailed upon him to attempt his escape ; but he was inter-
cepted by the President's order. The same friends then advised him
to pay the money, and preserve liis own life, that of his lawyer and
the judges, all of whom were in danger from the parts they had taken.
The plaintiff still refused. About dusk of the same evening Christophe
sent for D'Arcy, and had a conversation with him, the purport of
which was not in evidence ; but on the next da3', after the judgment of
the lower court had been confirmed, D'Arcy in open court retracted his
defence, consented that both judgments should be reversed, that his
memorial should be burnt by the public agent, and that he should be
condemned to pay Richardson the $3,000 he claimed, and the costs.
He retracted liLs oath also, that he owed Richardson nothing, because,
as the record of the court set forth, Richardson had since made him
remember some facts his memory did not furnish him when he took
the oath. The court accordingly reversed the judgments, condemned
D'Arcy to pay Richardson the $3,000, " for so much he had engaged
to pay him for Suckle}' & Co., for merchandise which the latter had
delivered to him as belonging to Mr. James Lyle, whom the said
D'Arcy represented, for which the tribunal do reserve to Mr. D'Arcy
his rights, that he ma}- prosecute the same if he thinks proper against
Lyle or Suckley." On the 22d of June, D'Arcy paid the $3,000 and
the costs.

Judge Yeates charged the jur}-, that if they were satisfied the plain-
tiff individually promised to pay Richardson the $3,000, he could not
recover. But the record showed that there was a review of the suit in
1804, respecting the goods of the defendant received from Suckley «fe
Co., as the judgment referred the plaintiff to the defendant for com-
pensation. The plaintiff was in no fault ; he stood out until the safety
of all concerned in the business was endangered. He did not pay
volnntaril}-. The jury must decide whether the loss arose from his
private engagement, or from his having received the goods as agent of
the defendant. If they were satisfied that the mone}' was extorted
from the plaintiff as the defendant's agent, he might recover under
the count for money paid to the defendant's use. A loss of money
incurred by the agent without fault, ought to be compensated b}' the
principal.

Tlie motion for a new trial was argued at December term last.

Tod and Rmde for the defendant.

Hare and Tilghman, contra.

TiLGHMAN, C. J., after stating the facts, and remarking that, al-
though the records were very imperfect, he thought it sufficiently ap-
peared that the proceedings in 1808, were connected with those of
1804, cither as an appeal from the judgment in 1804 or a revival of
the suit in a new form, proceeded as follows : —

This is one of those extraordinary cases arising out of the extraordi-
nary situation into which the world has been thrown by the French
revolution.

750 d'akcy v. lyle. [chap. vi.

If the confession of judgment by the i)laintiff had been voluntar}-, it
would have lain on hiin to show that the $3,000 were justly due from
the defendant to Richardson, or the persons for whom he acted, or that
the}' had a lien on the goods of the defendant to that amount. But the
confession of judgment was beyond all doubt extorted from the plaintiff
b}' duress, and he did not yield to fears of which a man of reasonable
firmness need be ashamed. The material fact on which this case turns
is, whether the transactions between the plaintiff and Richardson were
on any private account of the plaintiff, or solely on account of the
defendant. That was submitted to the jury, and we must now take for
granted that the proceedings at the Cape against the plaintiff were in
consequence of his having received possession of the defendant's
goods from Suckley & Co. I take the law to be as laid down by
Heineccius, TurnbuU's Heinec. c. 13, p. 269, 270, and by Erskine in
bis Institutes, 2 P^rsk. Inst. 534, that damages incurred by the agent
in the course of the management of the principal's affairs, or in con-
sequence of such management, are to be borne by the principal. It is
objected that at the time when judgment was rendered against the
plaintiff he was no longer an agent, having long before made up his
accounts, and transmitted the balance to the defendant. But this
objection has no weight, if the judgment was but the consummation of
the proceedings which were commenced during the agency. As such I
view them, and I make no doubt but the}' were so considered by the
jury. It is objected again, that no man is safe if he is to be responsible
to an unknown amount, for any suras which his agent may consent to
pay, in consequence of threats of unprincipled tyrants in foreign coun-
tries. Extreme cases may be supposed, which it will be time enough
to decide when they occur. I beg it to be understood, that I give no
opinion on a case where an agent should consent to pay a sum, far
exceeding the amount of the property in his hands. That is not the
present case, for the property of the defendant, in the hands of the
plaintiff in 1804, was estimated at $3,000. The cases cited by the de-
fendant show that if the agent, on a journey on business of his princi-
pal, is robbed of his own money, the principal is not answerable. I
agree to it, because the carrying of his own money was not necessarily
connected with the business of his principal. So if he receives a
wound, the principal is not bound to pay the expenses of his cure,
because it is a personal risk which the agent takes upon himself. One
of the defendant's cases was, that where the agent's horse was taken
lame, the principal was not answerable. That I think would depend
upon the agreement of the parties. If A. undertakes, for a certain
sum, to carry a letter for B. to a certain place, A. must find his own
horse, and B. is not answerable for any injury which may befall the
horse in the course of the journey. But if B. is to find the horse, he is
responsible for the damage. In the case before us, the plaintiff has
suffered damage without his own fault, on account of his agency, and
the jury have indemnified him to an amount very little, if at all, ex-

SECT. I.] D'ARCY V. LYLE. 751

ceeding the property in his hands, with interest and costs. I am of
opinion that the verdict should not be set aside.

Yeates, J. Several legal exceptions against the plaintifT's recovery
in tliis suit were taken by the defendant's counsel in the course of the
trial, which have been relinquished upon the argument on the motion
for a new trial. It is now contended that the payment made by
D'Arc}' to Thomas Richardson was voluntary, and unconnected with
the agency under Mr. Lyle, and that, were it otherwise, the defendant
as principal is not responsible to the plaintiff for injuries done b}' a
despot to him as a special agent, after the determination of his
authority.

The cause was put to the jury to decide whether the conduct of the
plaintiff as agent of tlie defendant was correct, and whether the pay-
ment of the $3,000 under the sentence of the court of Hayti was
extorted under color of law from him for acts done by him during his
agency. The jurors l\y their verdict have established the affirmative
of both questions, and I was far from being dissatisfied therewith : 1
feel no disposition to disturb their decision.

I see no reason whatever for retracting the opinion I had formed on
the trial, that where a factor has acted faithfully and prudently within
the scope of his authority, he is entitled to protection from his con-
stituent, and compensation for compulsory payments exacted against
him under the form of law for the transactions of his agency. The
flagitious conduct of Christophe, President of Hayti, compelled the liti-
gant parties under his savage power into a trial by battle, in order to
decide their civil rights. He influenced tlie Civil Tribunal of the first
district of the Province of the North, sitting at the Cape, " to set aside
a former judgment rendered by the tribunal of commerce, and of their
own court, and to condemn D'Arcy," according to the language of the
sentence, "to pay to Thomas Richardson 63,000, for so much he
had engaged to him to pay for Suckley & Co. for merchandise which
the latter had delivered to him as belonging to James Lyle, whom the
said D'Arcy represented, for which the tribunal do reserve to D'Arc}'
his rights, that he may prosecute the same, if he thinks proper, against
the said Lyle or Suckle}'," &c.

The defendant appointed the plaintiff his attornej', to settle and col-
kct a debt in a barbarous foreign country. The plaintiff has trans-
anted that business with fidelity and care, and remitted the proceeds to
his principal. He risked his life in defence of the interests of his
constituent, under the imperious mandate of a capricious tyrant, hold-
ing the reins of government. He has since been compelled, by a
mockery of justice, to pay his own moneys for acts lawfully done in
the faithful discharge of his duties as an agent ; and I have no diffi-
culty in saying, that of two innocent persons,, the principal and not the
agent should sustain the loss.

In Leate v. Turkey Company Merchants, Toth. 105, it was decreed,
that if a consul beyond sea bath Dower, and do levy goods upon a

752 d'arcy v. lyle. [chap. vi.

private merchant, the company must bear the loss, if the factor could
not prevent the act of the consul. The decree is founded in the
highest justice, and its reason peculiarly applies to the present case.
D'Arcy was doomed by the cruel order of an inexorable tyrant, cither
to pay the $3,000, or in his hated presence to fight his antagonist until
one of them should fall.

Upon the whole, I am of opinion that the motion for the new trial be
denied.

Brackenridge, J. Whatever conditional stipulation it might have
been necessar}' for D'Arcy, the agent of Lyle, to have made, provided
that stipulation was not so much against the interest of Lyle as to
come under the denomination of an unreasonable stipulation, and to
constitute a mal-agenc\' respecting the subject of the agency, Lyle, the
principal, must have been bound b^' it. The giving bond to produce
the power of attorney, in order to receive the goods of Lyle, out of the
hands of Suckley, which would seem to have been detained under the
claim of Richardson, might be deemed prudent; and had the power of
attorney not have been produced, owing to no fault of D'Arc}', but to
accident, or the impossibility of getting it in time, Lyle might be con-
sidered as bound to pa}* the bond, as the goods had been disposed of
for his benefit. But the power of attorney was received, and the bond
satisfied ; and we hear no more of this. It is on an entire new ground,
that a claim was advanced b}' Richardson against D'Arcy as the agent
of Lyle. It is that of an agreement or stipulation b^' him (D'Arcy),
that in consideration of having obtained a delivery of the goods of
Lyle, he would pay the debt due by Suckley, and in whose possession
the goods of L3-le were, a debt due and owing from Suckley to him
(Richardson) as agent for a house in Charleston. Had he made such
agreement, and it should turn out that this debt was beyond the value
of the goods received for the use of Lyle, it would be an unfaithful,
being an improvident agency ; and he would not be considered as
entitled to recover from Lyle, more than the value of the goods which
he had received, and the money arising from the sale of which had
come to the hands of Lyle. But D'Arc}' admits that he had made no
such agreement or stipulation whatever, on behalf of Lyle, in order to
receive his goods, or to have them delivered to him. How then can he
claim against Lyle ?

It is alleged to be on the ground that Richardson had compelled him
from a fear of life to acknowledge such agreement. It was on the
allegation of Richardson, that Christophe, the master of the gang, inter-
fered, and compelled D'Arcy to acknowledge such agreement. He
compelled him to come into a court of his, who had given judgment to
the contrary, and confess such agreement ; in other words, to retract a
denial of such agreement, and give his court color for reversing the
judgment before given. This cannot be distinguished from a com-
pulsion without color, to retract a denial, and confess an agreement.
It is the same thing as if Richardson and Christophe, out of doors, had

SECT. I.] D'ARCY V. LYLE. 753

compelled through a fear of life D'Arcy, not onh' to pay mone}', but to
acknowledge that he had agreed to pay it. A common carrier has car
ried the money of B. to pay C. He is met b}- a gentlemanh' footpad,
who says that the money is his so carrying to C. It is denied bj- A.,
who is suffered to go on. But on his return, he is again accosted by
the same footpad, who alleges that he agreed to pay him that sum or a
greater, on condition that he should be suffered to go on and carry to
C. It is denied, but the master of the gang interposes, and says he
shall acknowledge the agreement. The acknowledging the agreement
never made is but the sub modo of the robbery. It is but the robbery of
the carrier, under a pretence of having carried the money of B., which
he the footpad alleges belonged to him, and which he the carrier had
agreed on his first journey to be the fact, and now on his return should
pay him, and even a greater sum. In this case it would appear to be
as perfectly a pretence as that of the wolf in the fable, accusing the
lamb of disturbing the stream. Wh}' is it that a carrier must be
answerable for goods notwithstanding a robbery? It is the policy of
the law, founded on the possibilit}' of a carrier procuring himself to be
robbed. Will not the same policy be in the way of an agent recover-
ing for an alleged robber}- ; robbed more especially not of the goods in
his possession, but of other goods, on account of having had these ?
Settling such a principle would render it unsafe to have an agent at all.
There are two things or circumstances which take this case entirely
out of all reason and justice : the remaining in the country after the
agency as to the principal had been closed, and it being the act of the
agent himself that gave color to the compulsion. He was put in fear,
fear of his life ; a fear that would excuse or justify a constant and
resolute man ; that is clear. But it is his misfortune, and I can con-
sider Lyle under no obligation to indemnify' him for the loss. His
redress, if he shall ever be able to obtain anj', must be against the
spoiler, or those for whom he may have acted, or who may have
obtained the advantage of his wrong. There is a third circumstance
in this verdict which would justify a new trial ; the sum given being
beyond the value of the goods or mone}-, even with interest, which
D'Arcy the agent alleges to have been paid, on account of obtaining
possession of the propert}' of Lj-le. But on the two first grounds, I
do not think him entitled to recover. I see nothing of an appeal from
a proceeding under a claim made or interposed against the goods of
Lyle. Xor am I able to see anything like a growing out of the claim ;
it ma}' be said to be engrafted on it, or adscititious to it, or springing
up with it. But the act of D'Arcy himself, confessing an agreement,
is the onh' thing tliat can connect ; and this he admits did not exist.
His agency for Lyle might be said to be the occasion, but could not be
considered the cause of his loss. But it was rather the occasion of the
pretence that was set up, and to which D'Arc}' himself gave sanction ;
and if he has saved liis life by that, he must keep his life as that for
which he sustained the loss. It is not more nor less than if an agent,

754 ADAMSON V. JARVIS. [CHAP. VT.

having resisted a claim, set up against his quondam principal, and to
avoid a challenge, should come into one of our courts, and move to
have the judgment in his favor set aside, and to confess a judgment
against his principal, which, if allowed, might be to any amount. It is
a question with moralists whether it is lawful for the sake of life or
property to depart from truth.

Propter vitam, vivendi perdere causas.

Where a person had a right to expect the truth, it is not lawful, how-
ever under circumstances it may be excusable. But for one to evade a
risk by departing from the truth, and to attempt to throw the loss upon
another person, is totalh* inadmissible ; it cannot be done. If any
argument could be drawn from the circumstance of the master of the
gang, Christophe, being a principal as to the force, it must be evident
that it might be owing to the indiscreet expressions respecting Chris-
tophe, and his influence upon the administration of justice in his courts,
that induced him to interpose. This was the act of Richardson. I
am, therefore, of opinion for the defendant.

I^ew trial refused.^

ADAMSON V. JARVIS.
Common Pleas. 1827.

[4 Bing. 66.]

A VEEDiCT was entered for the plaintiff upon a count which stated,
that defendant on the 18th of April, 1817, to wit, at London, was pos-
sessed of divers cattle, goods, and chattels of great value, to wit, of
the value of .£1100, and being so possessed thereof, afterwards, to wit,
on, &c., at, &c., represented and affirmed to plaintiff that the defendant
was legally and of right entitled to sell and dispose of said cattle,
goods, and chattels, and then and there requested plaintiff to put up
and expose the same to sale by public auction for him defendant ; that
plaintiff, confiding in the said representation and affirmation of defend-
ant, and believing the same to be true, and not knowing to the contrary
thereof, did afterwards, to wit, on, &c., at, &c., put up and expose to sale
by public auction the said cattle, goods, and chattels, and then and there
sold the same to divers persons there then assembled for the purchase
thereof, for a large sum of money, to wit, the sum of £601 2s. 9d. ;
and plaintiff, after deducting and paying thereout divers sums of money
which he plaintiff was entitled to deduct and bound to pay thereout,
amounting in the whole to a large sum of mone}-, to wit, the sum of
£187 18.9. lid., paid over the residue thereof, to wit, the sum of £41.3
3s. lOd. to defendant ; whereas in truth and in fact defendant deceived

1 See Southern v. How, Cro. Jac. 468 (1617-18), s. c. Bridgraan, 125. — Ed.

SECT. I.] ADAMSON V. JARVIS. 755

and defrauded plaintiff in this, to wit, that defendant was not at the
time of the said sale legally or of right entitled to sell and dispose of
the said cattle, goods, and chattels, or of any part thereof, to wit, at
London aforesaid.

Plaintiff further said, that afterwards, to wit, on the 16th of Ma}',
1822, at Westminster, to wit, at, &c., before the Right Honorable Sir
Robert Dallas and his companions, then being his present Majesty's
justices of the bench, there, to wit, at, &c., one Joseph Somersett, as
the true and lawful owner of the said cattle, goods, and chattels at the
time they were so exposed to sale as aforesaid, brought a certain action
against plaintiff to recover the value of said cattle, goods, and chattels
so sold by plaintiff as aforesaid, and such proceedings were thereupon
had in the said action that the said Joseph Somersett afterwards, to
wit, in Trinity term in the third of the reign of his said present
Majest}-, before the said justices of the bench at Westminster aforesaid,
to wit, at, &c., by the consideration and judgment of the said court
recovered against plaintiff a large sum of money, to wit, the sum of
£1100 as and for the value of the said cattle, goods, and chattels so
sold by plaintiff as last aforesaid, and the further sum of £9o for costs
and charges b}' Somersett about his said suit in that ftehalf expended,
making together the sum of £1195 as by the record and proceedings
thereof still remaining in the said court at Westminster aforesaid more
fully appears, to wit, at, «&;c.

That afterwards, to wit, on the 23d of November, in the year last
aforesaid, at London aforesaid, he plaintiff was forced and obliged to
pay, and then and there did pa}-, to said Joseph Somersett the said sura
of £1195, and was also then and there forced and obliged to lay out
and expend a certain other large sum of mone}', to wit, the sum of £500
in and about defending the said action so brought against him as last
aforesaid, and in and about taking and pursuing other necessary pro-
ceedings made incumbent upon him in consequence of the said sale
and the said recovery ; of all which premises the said defendant after-
wards, to wit, on, &c., at, &c., had notice, and then and there ought to
have paid and satisfied to plaintiff the said sums of mone}' which he plain-
tiff was so forced and obliged to pa}', lay out, and expend as aforesaid,
and was then and there requested by plaintiff to pay him the same ; never-
theless defendant not regarding his duty in that behalf, but intending
and contriving to defraud and injure plaintiff in this respect, did not
nor would (although often requested) pa}' or satisfy to plaintiff the said
sums of money above mentioned, or any or either of them, or any part
thereof, but hath hitherto wholly refused, and still doth refuse so to
do, and the same and every part thereof still remain wholly due and
unpaid to plaintiff.

Tdihhj^ Sorjt., in the last term moved for a rule nisi in arrest of
judgment, on the ground that the count was ill conceived. It was
neither ex co ttractii nor ex delicto. There was no retainer of the
plaintiff by the defendant stated, no employment of him for reward, no

756 ADAMSON V. JARVIS. [CHAP. VL

promise on either side to raise an assumpsit ; and there was no allega-
tion of fraud, of malicious misrepresentation, — no scienter, — to con-
stitute a tort ; on the contrary-, whatever might have been the case at
the time of the sale, at the time of the representation it appeared that
the defendant was lawfully- in possession of the property in question.
Haycraft v. Creas}-, 2 East, 92, was an express decision to show that
an action of tort would not lie unless the misrepresentation complained
of were wilful, and intended to deceive.

Wilde, Serjt. , contra. Enough is stated on this count to warrant
a judgment against the defendant, after verdict. The representation
that the defendant was entitled to sell amounts to an express warranty
to sa^'e the plaintiff harmless ; it would have been a warranty to a pur-
chaser, and is equally so to an agent. Where there is an express war-
rant}', it is not necessary' to aver that the defendant knew it to be false,
or that he intended to defraud. It is sufficient if the defendant be
alleged to have stated as true that which he had not ascertained to be
so. Even, however, if deceit were necessar\' to impose liability, deceit
is here sufficiently averred in the allegation that the defendant by his
representations deceived and defrauded the plaintiff, and the receipt by
the defendant (# the proceeds of the sale is conclusive to show that
he persisted in his misrepresentation to the last. Crosse v. Gardner,
Carth. 90, is in point for the plaintiff. In that case the defendant had
affirmed that certain oxen which he sold to the plaintiff were his, when
in fact the}' belonged to another person. It was there objected, as in
the present case, that the declaration neither stated that the defendant
deceitfully sold them, nor that he knew them to be the property of
another person ; and yet it was holden that the action lay. That case
(with others to the same effect in 1 Roll. Abr. 95. Cro. Jac. 474) was
confirmed in Pasle}- y. Freeman, 3 T. R. 51, where the defendant was
held liable for the consequences of a fraudulent misrepresentation,
although he derived.no benefit from it. In the present case the de-
fendant reaped all the profit he proposed by the misstatement he made
to the plaintiff.

Tadcly. No contract between the plaintiflJ" and defendant is stated
on the record ; they must, therefore, be both considered as joint tort
feasors, and the present action as nothing else but an attempt by one
tort feasor to recover contribution from another, which the law does
not permit. In all the cases cited there was a contract between the
parties : as in Crosse v. Gardner, where the defendant sold the oxen
to the plaintiff; in 1 Roll. Abr. 95, and Cro. Jac. 425, where an agent
sold lands to the plaintiff under an express warrant}'. In the present
case there is no contract between the plaintiff and defendant, but only
a request made to the plaintiff by the defendant to commit a trespass.
But the declaration ought to have shown either a breach of contract, or
a false affirmation made with intent to deceive. A declaration on a tort
arising out of a contract ought always to show that a contract existed
between the parties, Max v. Roberts, 12 East, 89. And a declaration

SECT. I.] ADAMSOX V. JARVIS. 757

on a false representation ought at least to allege a scienter, Pasle}- v.
Freeman, Hajeraft v. Creas}'. If a declaration such as the present be
held sufficient, everj' tort-feasor ma}- recover compensation against his
companion. The plaintiff ought to have required a bond of indemnity
of the defendant before he proceeded to sell.

Cur. ado. vuU.

Best, C. J. A motion has been made in arrest of judgment after
verdict. The plaintiff relies on the second count, on which ouh' his
verdict and judgment are to be entered.

Stripped of the technical language with which it is encumbered, the
case stated on the second count is this : that the defendant, having
property of great value in his possession, represented to the plaintiff
that he had authorit}' to dispose of such propert}', and followed this
representation hy a request that the plaintiff would sell the property
for him, the defendant. The plaintiff, believing the representation of
the defendant as to his riglit to the propert}-, and not knowing, either
at the time the representation was made, or at any time after, that it
was not his, as the agent of the defendant, sold the property ; and
after paying such sums out of the proceeds as he was bound to pay,
and making sucli deductions as he had a right to make, and which the
defendant appears to have allowed, paid the residue to the defendant.

The defendant, who had induced the plaintiff to make this sale b}'
his false representation and request to sell, and who, after the sale,
continued to assert his right to sell, and confirmed the agenc}' of the
plaintiff b\' accepting from him the residue of the proceeds of the sale,
had no right to dispose of this property. The consequence has been
that the plaintiff, supposing, from the defendant's false representations,
he had an authorit}- which he had not, and acting as the defendant's
agent, has rendered himself liable to an action at the suit of the true
owner of the goods, and has been obliged to pay damages and costs,
whilst the defendant, the sole cause of the sale, quietly keeps the fruits
of it in his pocket.

It has been stated at the bar that this case is to be governed by the
principles that regulate all laws of principal and agent : — Agreed :
every man who employs another to do an act which the employer
appears to have a right to authorize him to do undertakes to indemnify
him for all such acts as would be lawful if the employer had the author-
it}' he pretends to have. A contrary doctrine would create great
alarm.

Auctioneers, brokers, factors, and agents do not take regular indem-
nities. These would be indeed surprised, if, having sold goods for a
man and paid him the proceeds, and having suffered afterwards in an
action at the suit of the true owners, they were to find themselves
wrong-doers, and could not recover compensation from him who had
induced them to do the wrong.

It was certainly decided in Merryweather v. Nixan, 8 T. R. 186,
that one wrong-doer could not sue another for contribution ; Lord Ken-

758 ADAMSON V. JARVIS. [CHAP. VL

yon, however, said "that the decision would aot affect cases of indem-
nit}- where one man employed another to do acts, not unlawful in
themselves, for the purpose of asserting a right." This is the onl}'
decided case on the subject that is intelligible.

There is a case of Walton v. Hanburj' and others, 2 Vern. 592, but
it is so imperfectly stated that it is impossible to get at the principle
of the judgment.

The case of Philips v. Biggs, Hardr. 164, was never decided; but
the Court of Chancer^' seemed to consider the case of two sheriffs of
Middlesex, where one had paid the damages in an action for an escape,
and sued the other for contribution, as like the case of two joint
obligors.

From the inclination of the court on this last case, and from the con-
cluding part of Lord Kenyon's judgment in Merry weather v. Nixan,
and from reason, justice, and sound policy, the rule that wrong-doers
cannot have redress or contribution against each other is confined to
cases where the person seeking redress must be presumed to have
known that he was doing an unlawful act.

If a man buys the goods of another from a person who has no author-
it}' to sell them, he is a wrong-doer to the person whose goods he
takes ; yet he ma}' recover compensation against the person who sold
the goods to him, although the person who sold them did not undertake
that he had a right to sell, and did not know that he had no right to
sell. That is proved by Medina v. Stougliton, 1 Salk. 210, Sanders v.
Powel, 1 Lev. 129, Crosse v. Gardner, Carth. 90, 1 Roll. Abr. 91, 1. 5,
and man}- other cases.

These cases rest on this principle, that if a man, having the posses-
sion of property which gives him the character of owner, affirms that
he is owner, and thereby induces a man to bu}', when in point of fact
the affirmant is not the owner, he is liable to an action.

It has been said that is because there is a breach of contract to rest
the action on, and that there is no contract in this case. This is not
the true principle ; it is this : he who affirms either what he does not
know to be true, or knows to be false, to another's prejudice and his
own gain, is both in moralit\' and law guilty of falsehood, and must
answer in damages.

But here is a contract : the plaintiff is hired bj- defendant to sell,
which implies a warranty to indemnify against all the consequences that
follow the sale.

The above-cited cases show that a scienter is not necessary in this
case, although it was necessar}' in the case of Havcraft v. Creas}' and
the cases of that class. In these cases, a party who had no interest was
applied to for his opinion ; if he gave an lionest, although mistaken
one, it was all that could be expected.

But it has been said, you have not shown that the affirmation was false
at the time it was made ; for the breach is, not that plaintiff had not
authority to sell at the time he said he had, but at the time of the sale,
which was subsequent.

SECT. I.] ADAMSON V. JARVIS. 759

But the complaint is, that defendant affirmed he liad power to sell,
and followed that affirmation by a request to sell ; which affirmation
and request induced plaintiff to sell when defendant had no right to give
him authority to make such sale. This affirmation and request caused
the plaintiff to do an act which has been injurious to him and beneficial
to the defendant.

For this injur}' plaintiff is entitled to compensation, whether the
affirmation was false or true at the time it was made.

If defendant had authority to sell at the time he employed plaintiff,
but ceased to have that authority at the time of the sale, he should
have informed plaintiff of this change in his situation, and prevented
him from doing what he ought not to have done ; at all events,
he should not have taken the proceeds of the sale.

If after verdict we can collect a cause of action, or infer that proof
must have been given at the trial, that will support the action, and the
judgment may be sustained.

In Weston v. Mason, 3 Burr. 1725, which was an action on a bond
brought against the sureties of the sheriff's bailiff, the condition recited
that the sheriff had appointed the bailiff for the hundred of East Got-
son, and it did not appear that the warrant which he was charged not
to have returned was directed to him as bailiff of that hundred ; but
the court said that, being in arrest of judgment, as it did not appear
that it was not directed to him as bailiff of that hundred, which the
defendant might have shown, it was sufficient. In Bull v. Steward,
1 Wils. 255, in an action against the bailiffs of the borough for an escape,
it did not appear that the cause of action arose within the jurisdiction of
the court ; but it was held that after verdict the court would presume any-
thing proved at the trial which was necessary to be proved, unless the
contrary appeared on the face of the record.

On these authorities the court might sa}', as the defendant has not
shown that he was authorized to sell at the time he affirmed he was,
and as it is proved he was not authorized at the sale, we will presume
that he never had authority at anv time. But the main ground is, that
he has created a belief in the plaintiff that he had authority when he
clearly had no authority-.

Max V. Roberts, which has been cited, does not apply : it did not
appear that defendant had ever undertaken to carr}- the goods, and
therefore he could not be answerable for taking them out of the due
course of the voyage. Hule discharged.^

1 Ace: Coventr)' v. Barton, 17 Johns. 142 (1819) ; Betts v. Gibbins, 2 Ad. & E.
57 (1834) ; Moore v. Appleton, 26 Ala. 633 (185.5).

And see Fletcher i'. Harcot, Hutton, 55 (1622), s. c. sub nom. Ballersey's Case,
Winch, 48; Dugdale v. Lovering, L. R. 10 C. P. 196 (1875); Palmer v. Wick and
Pultneytown Steam Shipping Co., [1894] A. C. 318, 324,333 (H. L. Sc.). — Ed.

760 DUNCAN V. HILL. [CHAP. VL

DUNCAN AND ANOTHER V. HILL.

THE SAME V. BEESON.
Exchequer Chamber. 1873.

[L. E. 8 Ex. 242.]

Appeals in two actions involving tlie same question.

In tiie first, Duncan v. Hill,^ the appeal was against the judgment of
the Court of Exchequer discharging a rule to enter a nonsuit, or to
reduce the damages to £1688 19^., which had been obtained on the
ground that the further damages claimed were not damages recoverable
against tlie delendant, and that in that respect the plaintiffs were not
legally damnified or entitled to indemnification, or otherwise to recover
in the action.

The plaintiffs were stockbrokers who had been employed by the
defendant to buy and sell shares for him upon the Stock Exchange-
In 1870 they bought for the defendant large quantities of stocks and
shares for the 15th of Juh', and on tliatda^', by the defendant's instruc-
tions, carried them over to the next account da}' (29th of July), paying
differences amounting to £1688 Ids. On the 18th of July the plain-
tiffs, being unable to meet their engagements, by reason of various
persons for whom they had effected contracts (and amongst others the
defendant) failing to make their due payments, they were declared
defaulters ; and, according to the rules of the Stock Exchange, all
their transactions were closed at the prices current on that da}-.'' The
result of this was to make them liable to pa}' a further sum for differ-
ences upon the stocks and shares so carried over b}' them for the
defendant. The plaintiffs had paid a dividend of 6^. 6d. in the pound
to their Stock Exchange creditors, and a further dividend was expected.
This action was brought in the names of the plaintiffs, but for the bene-
fit of their creditors, to recover the sum of £6013 13s. 5c?., which in-
eluded the £1688 19s., as well as the sum which the defendants became
liable to pay upon their being declared defaulters.

In the second action, Duncan v. Beeson,^ the appeal was against
the judgment of the Court of Exchequer discharging a rule to enter a
nonsuit which had been obtained on the ground that the defendant was
not liable to make good any part of the loss incurred by the closing of
defendant's share account upon the plaintiffs becoming defaulters on
the Stock Exchange ; that the account was closed contrary to defend-
ant's authority and against his will, and owing to the plaintiffs' own
defaults, and that defendant was not liable to indemnify plaintiffs
against the loss thereby occasioned to or paid b}' the plaintiffs ; that
no usage of the Stock Exchange was proved sufficient to make the

1 Reported L. R. 6 Ex. 255, where the pleadings are set out. — Rep.

2 See Rules 142, 167, 169, L. R. 6 Ex. 257, n. — Rep.
* Reported L. R. 6 Ex. 268, n. — Rep.

SECT. I.J DUNCAN V. HILL. 76]

defendant liable to this action, and that the usage, if an}', did not
extend to entitle a broiier to charge a loss arising from his own default
against his principal.

The plaintiffs were tlie same as in the other action, and the facts
were similar, except that tlie sum paid b}- the plaintiffs for differences
in carrying over the stoclis on the loth of July had before action
been repaid by the defendant. The sum souglit to be recovered
was £425.

Joseph Brovm^ Q. C. {Sir J. B. Kar slake ^ Q. C, and J. 0. Griffits
(in Duncan t'. Hill), and Philbrick (in Duncan c. Beeson), with him,
for the defendants in both actions.

Sir J, D. Coleridge, Q. C, S. G. {Poioell, Q. C, and Day, Q. C,
with hhn), for the plaintiffs in the first action.

Poicell, Q. C. {Murphy with him), for the plaintiffs in Duucau v.
Beeson, did not argue.

The judgment of the courts (Blackburn, Keating, Grove, Brett,
QuAiN, Archibald, and Honyman, JJ.) was delivered by

Blackburn, J.^ Both actions, whatever be the precise form ot
them, are actions, in contemplation of law, brought b\- the plaintiffs,
as brokers and agents, against the defendants, as tlieir principals, for
an indemnit}'. They are founded upon allegations that the agent has
incurred a loss b}' reason of having acted as agent for his principal.
They are actions founded on the ordinarj' and general principles of
common law with regard to implied indemnities. It must be admitted
that the plaintiffs were authorized by the defendants to enter into con-
tracts in their behalf according to the rules of the Stock Exchange. It
must be admitted that for any loss incurred hy the agent by reason of
his having entered into such contracts according to such rules, unless
they be wholly unreasonable, and where the loss is without anj- per-
sonal default of his own, he is entitled to be indemnified by his prin-
cipal upon an implied contract to that effect. But it is argued, that
where the agent, as in this case, is subjected to loss, not by reason of
his having entered into the contracts into which he was authorized to
enter by his principal, but bj' reason of a default of his own, that is to
sa}', as in this case, by reason of his insolvenc}', brought on by want
of means to meet his other primar}' obligations, it cannot be said that
he has suffered loss by reason of his having entered into the contracts
made by him on behalf of his principal, and consequently there is no
promise which can be implied on the part of his principal to indemnify
him ; and in the present cases there certainly was no express promise to
this effect. These allegations, both as to fact and law, seem to us to be
correct. There was no failure by the defendants in any part of their
undertakings ; there was no evidence that the insolvenc}' of the plain-
tiffs was occasioned by reason of their having entered into the contracts
for the defendants; it is consistent with the evidence that the plaintiffs
would have become insolvent precisel}- at the same time as they did if

1 After stating the facts. — Ed.

762 MAITLAND V. MARTIN. [CHAP. VI,

they had not entered into an}' contract for either of the defendants.
The plaintiffs' insolvency- was, so far as regards the defendants, entire!}^
the resnlt of their own default. We think tliere is no imi)lication of
law to force upon the defendants an obligation to indemnify the
plaintiffs in such a case.

We think, therefore, that the judgment below should be reversed,
and the rule in the case of Duncan v. Hill be made absolute to reduce
the damages to £1688 lO.s., and in the case of Duncan v. Beeson that
the rule be absolute to enter a verdict for the defendant.

Judgment reversed.

MAITLAND v. MARTIN.
Supreme Court of Pennsylvania. 1878.

[86 Pa. 120.]

Error to the Court of Common Pleas, No. 2, of Philadelphia county.

Assumpsit b}- Caroline Martin against Camille D'Invilliers and John
J. Maitland, trading as C. D'Invilliers & Co., to recover the value of
certain bonds purchased b}' said firm as brokers. D'Invilliers died
after suit brought, and it was afterwards proceeded with against
Maitland alone.

The facts are full}' stated in the opinion of tliis court. At the trial,
Pratt, J., charged the jur}' as follows : '' Tlie plaintiff, a sister of Mr.
Martin, places money in the hands of defendants, as brokers. Mr.
Martin, as agent for his sister, gave a written order to buy South
Carolina bonds. He says April and October. Defendants say January
and July. On written order April is erased and July substituted.
Mr. Martin says that after the purchase he was informed by defendants
that the purchase made on his order was of January and July bonds.
He then objected, but was told that these were just as good as the
others, and afterwards said nothing. There was no positive acceptance
on his part further than acquiescence goes. The bonds were never
delivered to Martin. You must judge whether Martin b}' his conduct
allowed defendants to believe that he acquiesced.

" We find these bonds in the hands of the defendants as the prop-
erty of the plaintiff.

" In 1875 the defendants were directed to sell the bonds. An order
was sent by defendants to a New York broker to sell. The following
da}' the bonds were shipped. This was the 14th of May. [On the
same day — the 14th — the defendants were advised by their New
York correspondent that the bonds were sold, and a check was sent
over for the amount, and was received by defendants. This was a
completed transaction.]

"The purchaser found, upon seeing the bonds, that three of them
were not marketable, and refused to receive them. Defendants

SECT. I.] MAITLAND V. MARTIN. 763

thereupon purchased other bonds and delivered them to the purchaser,
leaving three of the bonds ordered b}' the plaintiff to be sold, on hand.

" At the time of this sale the defendants were agents for the plain-
tiff, in relation to these bonds. An authority to sell does not imply an
authority to buy. An agent who exceeds his authorit}- adopts the act
as his own, and is no longer agent.

"[Plaintiff ordered her bonds sold at thirty-three, and they were
sold at that price. If you believe this, then, as matter of law, D 'In-
villiers was responsible for rescinding the contract.] They thereby
adopted the theory of the purchaser, accepted the return of the bonds,
and purchased others to suppl}' their place, and fill their contract. B5
this act they relieved the purchaser from liabilit}' to be sued upon his
contract.

" [If defendants rescinded the contract and took back the bonds
sold, and bought others to fill the contract, without authority from the
plaintiff, they adopted the loss as their own.]

" [If the defendants agreed to take these bonds back without the
consent and authority' of their principals, and substituted others pur-
chased by them in lieu thereof, they accept these bonds as their own.
The three bonds are in the hands of defendants as their propert}'],
and the measure of damages would be the amount realized from the
sale, less their lawful commissions."

The verdict was for the plaintiff for $1784.54, and after the entry of
judgment the defendant took this writ, alleging that the court erred in
the foregoing portions of the charge contained in brackets.

George Bull and James H. Campbell^ for plaintiff in error.

Thomas J. Diehl, for defendant in error.

Mercur, J. This action was brought by the defendant in error for
money had and received for her use. The money sought to be re-
covered came into the hands of the plaintiffs in error under the follow-
ing circumstances : In August, 1873, being brokers in the city of
Philadelphia, they purchased for the defendant in error five South
Carolina bonds, of the nominal value of $1000 each. She left the
bonds in their possession. They were sealed up in an envelope, her
name indorsed thereon, and deposited in the safe of the plaintiffs in
error in the " Fidelity." They thus remained until May, 1875, when
she instructed the plaintiffs in error to sell them at thirtj'-three per
cent. There being no market in Philadelphia for them, on the 12th of
May they directed their correspondents, Cecil, Stout & Thaver,
brokers in New York, to sell them. By despatch, on the 14th of Ma}',
the}' advised the plaintiffs in error that they had sold at the price
named. Immediately thereafter the plaintiffs notified the defendant of
the sale. On the same day the plaintiffs forwarded the bonds to their
correspondents by express, and requested a draft to be remitted for net
proceeds. On receipt of the bonds, Cecil, Stout & Thayer, remitted
the proceeds to plaintiffs in error on the 15th May. On the 17th
May, and while the proceeds remained in the hands of the plaintiffs

764 MAITLAND V. MARTIN. [CHAP. VI.

in error, they were notified by Cecil, Stout & Thayer, that three of the
bonds were not fundable, and not a good delivery at the price for
which they had sold them ; and, therefore, they had purchased others
at the same price to supply the place of those not fundable, and held
the plaintiffs in error for the sum thus advanced. On the same da}'
the plaintiffs in error advised the defendant of the substance of this
notice, and further requested her to consider the sale of 3000 of the
bonds reported by them sold, as cancelled. They also directed Cecil,
Stout & Thayer, to return the three bonds not accepted, and draw on
them for the sum paid. Thereupon Cecil, Stout & Thayer, returned
the bonds, and the plaintiffs in error paid them the sum which the}- had
advanced.

The plaintiffs in error offered to return the three bonds to the de-
fendant, and account for the proceeds of the two others ; but she
denies their right to hold her responsible for the monej- thus paid by
them, and seeks to recover the whole sura agreed to be paid for the
five bonds.

It appears, by the evidence, that about the 1st of June, 1874, the
treasurer of the State of South Carolina issued a notice that certain
bonds of that State had been declared null and void b}- the legis-
lature, and would not be recognized. Thereupon, June 2d, 1874, the
New York Stock Exchange made an order that the bonds embraced
in said notice should not pass, as a good deliver}^, on a sale of regular
" South Carolina bonds," after that date. Three of these bonds appear
to have been repudiated by the legislature, and at the time of the sale,
in May, 1875, were not fundable, and as a consequence were almost
worthless. Cecil, Stout & Tha3'er, professed to sell " fundable bonds"
onl}'. They supposed all of the five to be of that class. The purchaser
had a right to suppose he was buying such. Discovering that three of
them were not of that kind, he refused to accept them. Cecil, Stout
& Thayer, thereupon replaced them with such bonds as filled the con-
tract. If these facts be proved, they undoubtedly had a valid claim
against the persons in whose behalf they agreed to make the sale. At
the time the plaintiffs in error directed them to make the sale, they did
not disclose the name of their principal ; yet this in no manner changed
the legal rights and liabilities between her and them. The specific
bonds were her property. The plaintiffs were her agents to effect a
sale. It was to be made for her benefit. The plaintiffs were bound to
due care, prudence, and diligence in the execution of the powers
committed to them. These they appear to have exercised. They kept
their principal informed of their action. The defendant is not shown
to have sustained any damage by reason of anj' information being with-
held from her. These bonds had depreciated while owned b}^ her.
If the plaintiflTs in error, while acting as her agents in effecting the
sale, without any fault on their part, became liable, she, and not they,
must bear the loss.

The object to be effected was a sale of the bonds. The plaintiffs in

SECT. I.] READ V. ANDERSON. 765

error, as well as Cecil, Stout & Thayer, were acting as agents to reach
that end. An agreement to sell fundable bonds, and a payment ])y the
purchaser to one agent, and his transmission to another agent, did not
necessarily complete the transaction.

It required a deliver}", or a readiness to deliver, the bonds, of the
kind sold, according to the contract. Anything less than that left the
transaction incomplete, unless further fulfilment was waived.

In fully perfecting a sale the plaintiffs in error were strictly in the
line of their duty. We discover nothing affecting their good faith. If,
then, without fault on their part in the honest management of the busi-
ness of the defendant, they incurred damages, those damages must be
borne by her and not by them. Stocking v. Sage, 1 Conn. 519 ; D'Arcy
V. Lyle, 5 Binn. 441 ; Whart. on Agents, sect. 316.

If the plaintiffs in error in good faith carried out the contract made
with the purchaser, they did not thereby adopt the loss as their own
and relieve the defendant from her legal obligation to reimburse them.
Although they took back the bonds, without the express consent and
authority of the defendant, yet the}' did not thereby necessarily accept
them as their own. If the facts are found to be as stated, the purchaser
was justified in refusing to accept the bonds. If so justified, it was
clearh' within the general scope and authority of the plaintifTs in error,
as her agents, to fulfil the contract, and their acts, in contemplation of
law, became her acts. Although, b}' failing to disclose their principal,
the plaintiffs in error may have become personally liable to Cecil, Stout,
& Thayer, 3-et that does not bar the right of the plaintiffs in error to
require the defendant to make their loss good. It therefore follows
that many portions of the charge were too unfavorable to the plaintiffs
in error, and the assignments are substantially sustained.

Judgment reversed, and a venire facias de novo awarded}

READ V. ANDERSON.

Court op Appeal. 1884.

[13 Q. B. D. 779.]

Appeal by the defendant from the judgment of Hawkins, J., in
favor of the plaintiff, after trial upon further consideration.

The facts of the case are fuUv stated in the report of the judgment
of Hawkins, J., 10 Q. B. D. 100, and also are briefly mentioned
in the judgments of Brett, M. R., and Bowen, L. J., hereinafter set
forth.

Petheram^ Q. C, and MltcaJfe Dale, for the defendant.

Finlay^ Q. C. {R. A. McCall with him), for the plaintiff.

Cur. adv. vult.
1 See Saveland i'. Green, 36 Wis. 612 (1875). — Ed.

766 READ V. ANDERSON. [CIIAP. VI.

Brett, M. R. This case was tried before Hawkins, J., without a
jury, and the question was as to the plaiiitill's riglit to recover from the
defendant money paid in discharge of bets. The plaintiff was a turf
commission agent ; tliat is to say, he betted for other persons. The
learned judge has found man}- of the questions in dispute as questions
©f fact, and it seems to have been thought that tlie Court of Appeal
cannot dispute his findings ; but the Court of Appeal is not bound by
the findings of fact b}- a judge wlio tries a case without a jury. As to
the transaction itself between the plaintiff and the defendant, it was of
a well-known description : the defendant did not bet himself, but he
hired the plaintiff to bet for him ; he gave to the plaintiff authority to pa}'
and to receive money, and it is a contract between principal and agent
and not between vendor and purchaser. The contract determines the
kind of the employment, and the commission is payable in respect of
making bets and not of paying them. One ordinary principle of the law
as to principal and agent is that unless a principal is prevented by cer-
tain circumstances, the nature of which is familiar to us, he can revoke
the authority of the agent. In the present case the defendant had
given to the plaintiff authority to paj' and receive ; but he revoked the
authorit}' before payment : can the agent sue the principal? The real
question is whether the defendant, as principal, could revoke the
authority' given to the plaintiff as agent. The evidence given before
Hawkins, J., proves that when a member of Tattersall's makes bets
and does not pa}' them if lost, he is liable to be turned out of the room ;
and if he is turned out, he cannot carry on his business as a turf com-
mission agent. The question is whether the law will imply an under-
taking by the defendant, that he will not revoke the plaintiff's authorit}'
to pay bets which have been lost. If a principal employs an agent to
perform an act, and if upon revocation of the authorit}' the agent will be
by law exposed to loss or suffering, the authority cannot be revoked.
But in the present case no claim could be lawfully enforced against the
agent. It is true that the betting contract was made b}' the plaintiff in
his own name on behalf of his principal ; nevertheless, it could not be
enforced against him. If the other party to the bet had lost it, and had
declined to pa}' it, he could not have been compelled to do so. But it
has been contended that although this view is true, the law puts it into
the plaintiflTs power to enforce payment by the defendant of the amount
of the bet, because unless it is paid the plaintiff will suffer a loss in his
business ; but the plaintiff's business, although it may not be illegal, is
directly objected ■ to by the law, and the contracts made by him in his
business cannot be enforced : it is a business of which the law ought
not to take notice, and therefore the inconvenience and the loss, which
the plaintiff may suffer in his objectionable business, form no ground
for an action for revoking an authority which the principal ought not to
have given. The cases, in which an authority cannot be revoked,
ought to be confined to those cases in which the agent will upon revo-
cation suffer what the law deems to be an injury. I think that the
judgment of Hawkins, J., was wrong.

SECT. I.] READ V. ANDEKSON. 767

BowEN, L. J. I regret that I cannot agree with the Master of the
Rolls, and that 1 cannot take the same view of this case as he does. The
plaintiff was a turf commission agent, and the defendant was a licensed
victualler at South Shields. Bets were made by the plaintiff at the
defendant's request, and these bets were lost. The plaintiff made the
bets in his own name, not in the defendant's ; and after the bets had
been made and lost, the defendant revoked the authority to pay con-
ferred upon the plaintiff. Had the defendant any right at this eleventh
hour to revoke and retract the authority given to the plaintiff? It is
true that this is a transaction between a principal and an agent : there
is a delegation of power to the agent : there is a mandate to the agent ;
and, subject to certain exceptions, a principal it is said may revoke a
mandate which he has given. But there is something in this transac-
tion beyond a mere mandate given or power delegated to an agent.
There is a contract of employment between the principal and the
agent, which expressly or by implication regulates their relations ; and
if as part of this contract tlie principal has expressly or impliedly
bargained not to revoke the authority and to indemnify the agent for
acting in the ordinary course of his trade and business, he cannot be
allowed to break his contract. What was the contract or bargain?
Was the original contract that the plaintiff should be at liberty to make
bets for the defendant, and should be liable at any moment to have the
authority conferred upon him withdrawn? Or was it that the defend-
ant employed the plaintiff to make bets and undertook to indemnifj'
him against payment of an}' bets which he should make on the defend-
ant's behalf? It will not be denied that if a principal employs an
agent to do something which b}' law involves the agent in a legal
liabilit}', the principal cannot draw back and leave the agent to bear
the liability at his own expense. That is not the case here, because
the payment of bets cannot be enforced by law ; but by the usage of his
business known to both parties at the time of the emploj'ment, and with
reference to which usage the contract of employment was made, the
betting agent became liable as a matter of business to make good a
lost bet at the risk of losing his character and customers ; and in the
present case Hawkins, J., has found, in accordance with the evidence,
that the plaintiff would have suffered ver}' serious pecuniary incon-
venience if he had failed to pa}' the bets which had been lost. Was
the defendant entitled to turn round and tell the plaintiff not to pay the
bets, and to thus put him into the position of being expelled from
the room where he carries on his business ? What is the inference of
fact to be drawn as to the true bargain between them ? Can it be said
that the plaintiff took upon himself the risk of embarking upon this
perilous adventure without such an indemnity? As an inference of
fact, it seems to me that it was well understood to be part of the bar-
gain that the principal should recoup his agent, and should not revoke
the authority to pay, but should indemnify the agent against all pa}^-
ments made in the regular course of business. I feel the force of the

768 READ V. ANDERSON. [CHAP. VI.

point that the obligation to pay a lost bet relied upon by the plaintiff is
not recognized by law ; but the plaintitf has placed himself in a posi-
tion of pecuniary ditRculty at the defendant's request, who impliedly
contracted, I think, to indemnif}- him from the consequences which
would ensue in the ordinary course of his business from the step which
be had taken. There is a great deal of apparent difficulty in this case,
because the action relates to betting and wagering ; but the contract
sued on by the plaintiff is not a wagering contract. I feel great reluc-
tance to differ from the Master of the Rolls, but on the whole I am of
opinion that the judgment of Hawkins, J., was right and ought to be
affirmed.

Fry, L. J. In this case I agree with Bowen, L. J. I confine myself
to expressing my concurrence with the views which he has expressed at
length. I adopt his views as my own. Judgment affirmed.^

1 See Pidgeon ■;;. Burslem, 3 Exch. 465 (1849) ; Smith v. Lindo, 5 C. B. n. s. 587
(1858) ; Thacker v. Hardy, 4 Q. B. D. 685 (C. A. 1878) ; Seymour v. Bridge, 14 Q. B.
D. 460 (1885) ; Perry v. Barnett, 15 Q. B. D. 388 (C. A. 1885).

The doctrine of the principal case was abrogated by the Gaming Act, 1892 (55 &
56 Vict, c 9). See Tatam v. Reeve, [1893] 1 Q. B. (1892).

In Bibb v. Allen, 149 U. S. 481, 497-499 (1893), Jackson, J., for the court said:
" We know of no principle on which the agent can be deprived of a right to his com-
missions and advances in the execution of his agency for a principal on the ground
that he has not avoided a contract which was not in strict conformity with tlie statute
of frauds, in the absence of any instruction or instructions from the principal not to
comply therewith. Contracts not in conformity with the statute are only voidable and
not illegal, and an agent may, therefore, execute such voidable contracts without being
chargeable with either fraud, misconduct, or disregard of the principal's rights. If
the statute of frauds was not complied with in making the sale contracts in the
present case, we do not see that the defendant was in a position to take advantage
thereof, or that such want of compliance with the statute, after the contracts were ex-
ecuted, would constitute any defence to the action. The suit was not brought on
these contracts of sale, which the plaintiff in error claims were voidable under the
New York statute of frauds. It is an action by the agents against their principal to
recover for work and labor performed, and money paid out at the principal's instance
and request, and in the settlement of the principal's business, in which the agent had
authority to make disbursements for him. In the present case the plaintiffs had, by
their contract, rendered themselves personally responsible for the losses which might,
and did, occur under the contracts of sale made for account of the defendant, and as
such agents they are entitled to recover against their principal the full amount ex-
pended by them' for him in the transactions. If in closing out the contracts of sale,
profits had been realized on the transactions, whether by reason of decline in the price
of cotton, or by the purchases ' to cover ' the cotton sold, the brokers would, upon well-
settled principles, have been liable to their principal for the same. They could not
have set up or interposed as a valid defence to such liability that the contracts of sale
out of which the profits were realized were not enforceable under the statute of frauds,
or were voidable by the agents or the purchaser with whom they contracted. Neither
can the principal interpose such an objection as against the agent's right to commission
or to reimbursement for his outlays, after the execution of contracts, merely voidable
for want of writing. Coward v. Clauton, 79 Cal. 23 ; Morrill v. Colehour, 82 111. 618.
It is a well-established principle, which pervades the whole law of principal and agent,
that the principal is bound to indemnify the agent against the consequences of all acts
done by him in the execution of his agency, or in pursuance of the authority conferred
»pon him, when the actions or transactions are not illegal. Speaking generally, the

SECT. I.] MOHR V. MIESEN. 769

MOHR ANT) OTHERS V. MIESEN.
Supreme Court of Minnesota, 1891.

[47 Minn. 228.]

Appeal by defendant from an order of the district court for Ram-
sey County, Otis, J., presiding, refusing a new trial after a verdict
of $2,005.78 for plaintiffs. The jury found specially that "the
arrangement between plaintiffs and defendant with reference to the
transactions in controversy contemplated the purchase and sale of
actual grain for future deliver}-, and did not contemplate the making
of gambling contracts only," and also that "the contracts in evidence
were made by and between the plaintiffs and other members of the
Chamber of Commerce, for the purchase and sale of grain actually
to be delivered by warehouse receipts, if either part}' to them should
require it, and that said contracts were not simph- gambling contracts."

Jno. IT. Ives, for appellant.

C. IT. Hamilton and Morris <jb WiJlinnis, for respondents.

Vanderburgh, J. The plaintiffs sue defendant for mone}' paid and
expended for his use in the purchase and sale of grain. The answer
sets up that the purchases and sales referred to were not actual or
veritable purchases and sales of grain, but were merely colorable, and
" were gambling transactions, whereby the plaintiffs in form undertook
to buy and sell on the Chicago or Milwaukee boards of trade, ostensibly
for future deliveries, but without any intention or expectation on the
part of the plaintiffs or defendant that the same would be actually
delivered, large quantities of wheat and barle}', with the expectation
and intention on the part of both plaintiffs and defendant of wagering
on the market prices, and that the amounts which defendant would win
or lose would be governed by and determined upon the fluctuations in
the quotations of the boards of trade." The record shows that the
plaintiffs wei*e members of the Milwaukee Chamber of Commerce, and
were brokers negotiating purchases and sales of grain, and accustomed
to bu}- upon margins under the rules of the Chamber, and to make
advances for customers, and to charge commissions for their services.
The defendant during the time of the transactions in controversy was a
dealer in wines and liquors in the cit}- of St. Paul. These transactions
opened b}' the "receipt b}' plaintiffs of a telegraphic despatch from the

agent has the right to be reimbursed for all his advances, expenses and disbursements
incurred in the course of the agency, made on account of or for the benefit of his prin-
cipal, when such advances, expenses and disbursements are reasonable, and have been
properly incurred and paid without misconduct on the part of the agent. If, in obey-
ing tha instructions or orders of the principal, the agent does acts which he does not
know at the time to be illegal, the principal is bound to indemnify him, not only for
expenses incui'red, but also for damages which he may be compelled to pay to third
parties. The exception to this rule is where the transaction for which the agent is
employed is illegal, or contrary to good morals and public policy." — Ed.

770 MOHR V. MIESEN. [CHAP. VI.

defendant on November 11, 1886, directing them to " sell ten thousand
bushels May wheat." On the following day the}- accordingly executed
the order. February 10th defendant directed the plaintiffs to buy
10,000 bushels May wheat, which order was in like manner executed
the same da}'. This closed the transaction, so far as the defendant
was concerned. The two contracts were adjusted on the basis of the
difference in prices at the dates specified, and a statement showing the
difference sent to defendant ; that is to say, the two contracts were
adjusted on the basis of such difference in prices, without waiting for
their literal fulfilment, and without any actual delivery of wheat. A
large number of other similar purchases and sales of wheat and barley,
amounting to hundreds of thousands of bushels, were made by plaintiffs
for defendant, and disposed of in like manner, during the year 1887.
Some of the "deals" were closed with a profit, others with a loss, to
defendant, which was charged up to him by the plaintiffs. During this
time the defendant paid out no money for grain whatever, but at
plaintiffs' instance, to cover margins for which advances had been
made by them on a falling market, he had paid them between the 10th
day of November, 1886, and the 1st day of January, 1888, the
sum of $2,462.50, leaving due them, as they claim, the amount de-
manded in this action. The last transactions, as per statement sent
to defendant by plaintiffs, were the reported sale of 10,000 bushels
February barley, December 30, 1887, and purchase of 10,000 bushels
February barley, January 3, 1888, difference (loss) reported January
4, 1888, at $275.^ . . .

It becomes material, therefore, to inquire into the intention of the
parties in entering into contracts purporting to be for the future
delivery of commodities, and the plaintiffs must be shown to be m
pari delicto to defeat a recovery in this action.^ . . .

The testimony of the defendant, which is undisputed, sho\75 or tends
to show that he did not intend to make actual botia fide purchases
and sales of grain, but intended to "deal in futures" solely, and the
manner in which the business was conducted and the several "deals"
closed and adjusted by the plaintiffs is consistent with this theory, and
tends to support it; and, while this circumstance might not alone be
sufficient to establish the fact that plaintiffs, or the third parties with
whom they dealt in executing the orders of the defendant, had notice
that defendant's object was not to buy and sell grain, but to speculate
in the price of grain merely, yet the manner in which the business
involving these transactions was conducted was certainly an element to
be considered with other circumstances in determining the question of

1 Here followed a passage explaining what contracts for future delivery are wagers,
and citing 22 Am. L. Reg. 613, n. ; Rumsey v. Berry, 65 Me. 570; Kirkpatrick v.
Bonsall, 72 Pa. 155.— Ed.

2 Here followed a passage to the effect that the burden of establishing illegality
rests upon the party who asserts it, disapproving Barnard v. Backhaus, 52 Wis. 593,
600, and approving Crawford v. Spencer, 92 Mo. 498. — Ed.

SECT. I.] MOHR V. MIESEN. 771

their good faith. Hill v. Johnson, 38 Mo. A pp. 383 ; Crawford v.
Spencer, 92 Mo. 498, (4 S. W. Rep. 713). It is not necessary to prove
that plaintiffs had express notice of defendant's purpose. The under-
standing between the parties ma}' be gathered from the facts and
attending circumstances. This is well settled, and upon this point
evidence of the defendant's occupation, residence, financial abilit}- ; that
he never delivered or received or proposed to deliver or receive any
grain ; that he was not a dealer ; and that the orders to purchase were
made without reference to or far in excess of his ability to pa}- for, with
other facts of like character, was competent- Cobb v. Prell, 5 Mc-
Crary, 85 (15 Fed. Rep. 774) ; Carroll v. Holmes, 24 111. App. 453,
458, 459 ; In re Green, 7 Biss. 338, 344 ; Crawford v. Spencer, supra;
Lowry v. Dillman, 59 Wis. 197 (18 N. W. Rep. 4) ; Sprague v. War-
ner (Neb.), 41 N. W. Rep. 1115; Watte v. Wickushun, 27 Neb. 457
(43 N. W. Rep. 259) ; Williams v. Tiedmann, 6 Mo. App. 269, 276 ;
Hill r. Johnson, 38 Mo. App. 383, 392. The plaintiffs concede that it
was apparent from his correspondence that the defendant's transaction
were mostly for speculative purposes. They knew he was in the saloon
business, and not in the grain business. The jury might find from the
facts disclosed by the evidence that the plaintiffs knew that he had not
the means to buy grain with, and did not desire or need it, but was
operating for the differences only.

The statutes of Wisconsin, where the business was done, were not
introduced in evidence. The rights of the parties will therefore be de-
termined by the rules of the common law, as generally accepted and
applied in this country. Harvev r. Merrill, 150 Mass. 1 (22 N. E.
Rep. 49). And it is generally held as the common-law doctrine that
all wagering contracts are illegal and void as against public pohcy.
Irwin V. Williar, 110 U. S. 499, 510 (4 Sup. Ct. Rep. 166) ; Harvey v.
Merrill, supra. No cause of action arises in favor of a part}- to an
illegal transaction ; nor will the law lend its aid to enforce any contract
which is in conflict with the terms of a statute, or sound public polic}'
or good morals. In re Green, 7 Biss. 338 ; Armstrong v. Toler, 1 1
Wheat. 258 ; Ruckman r. Bryan, 3 Denio, 340. And there is no
reason why a broker or commission merchant should be favored or
exempted from consequences resulting to other parties who aid or
assist in unlawful transactions. Barnard v. Backhaus, supra. It was
through the agency of the plaintiffs that the defendant was attempting
to carry on an unlawful business. They executed his orders, advanced
money for margins, and settled the differences. The contracts were
all made in their names, and he was not known in the transactions with
third parties, and they were personally responsible to the persons with
whom they dealt in making the purchases and sales in question. Under
such circumstances it would, of course, be difHcult to ascertain whether
tlie latter had notice of the nature of the agreement or understanding
existing between the parties to tliis action ; but it was clearly important
and material to show that the plaintiffs were cognizant of defendant's

772 MOHE V. MIESEN. [CIIAI'. VI.

illegal purposes, and were engaged in promoting them ; and, if they
were, the court will not aid them to recover moneys advanced in
furtherance of such schemes. The plaintiffs, as brokers or commission
merchants, might well decline to aid in transactions of that character ;
and, if the}- would do so, a great deal of that kind of gambling would
cease, as, in the majority' of cases, the ventures could not he made with-
out their financial assistance. As between them and their customers the
same strict rule should be applied as in other cases. Carroll ". Holmes,
24 111. App. 453, 460 ; Hill v. Johnson, 38 Mo. App. 383 ; Tied. Sales,
p. 490, § 302.

The plaintiffs' counsel, however, concedes in his brief in this court
that if, by the arrangement between the parties to this suit, they were
to undertake gambling transactions, then the intent of third parties
was not material. But the defendant's counsel insists that the charge
of the court on this subject, including the instructions asked by plain-
tiffs, would warrant the jur}' to infer that it was necessary' for the
defendant to make it appear that the parties with whom plaintiffs dealt
were also in pari delicto. Upon this point the charge, taken as a
whole, is perhaps not entirely' clear ; but we think if there was any
ambiguity or uncertainty in the charge on the question, the defendant
should have asked more specific instructions.

It is also assigned as error that the court erred in refusing defendant's
second request to charge, which was in substance that, in order to
prove notice or knowledge on the part of the plaintiffs of the designs
and intentions of the defendant, it is not necessary that defendant should
have written or said to any of the plaintifl's that such was his design ;
but the jur}' were to determine the understanding of the parties from all
the circumstances connected with the transactions between them, and
that upon this question they were " entitled to consider the fact that at
the time the plaintiffs sold the barley for the defendant in October,
November, and December, 1887, one of the plaintifl!s stated that he had
no reason to believe that the defendant had the barley at the time of
such sales ; and the further fact that during a part, at least, of
the time of such transactions, the defendant was behind with his
margin, and was being pressed by plaintiffs for money to make the
margins good ; and that plaintiffs immediately after closed these deals
as well as all prior deals, considered the transaction at an end so far as
defendant was concerned, and, instead of charging him with the purchase
of any wheat, sent him statements charging him with, or crediting him
with, as the case might be, the difference between the purchase and the
selling price." These instructions were not covered by the general
charge, and we think should have been given. Some of the evidence was
perhaps of slight importance ; but we think, with other facts and circum-
stances in the case, it was all proper to be considered by the jur}- in
determining the knowledge of the plaintiffs and the real nature of the ar-
rangement between the parties ; and without such instructions the jury
were in danger of being led to believe, as the court subsequently stated.

SECT. II.J PRIESTLEY V. FOWLER. 773

that there must be an express agreement, and that a mere under-
standing between the parties was not sufficient.

We think evidence of the general character of transactions in the
chamber between other dealers was properl}' rejected ; but for the error
above referred to there should be a new trial.

Order reversed}

SECTION II.

Responsibility for Injuries.

{A) The Fellow-Servant Rulb

PRIESTLEY V. FOWLER.

Exchequer. 1837.

[3 M. ^' W. 1.]

Case. The declaration stated that the plaintiff was a servant of the
defendant in his trade of a butcher ; that the defendant had desired and
directed the plaintiff, so being his servant, to go with and take certain
goods of the defendant's, in a certain van of the defendant then used
by him, and conducted by another of his servants, in carrying goods
for hire upon a certain journey ; that the plaintiff, in pursuance of such
desire and direction, accordingly commenced and was proceeding and
being carried and conveyed by the said van, with the said goods ; and
it became the duty of the defendant, on that occasion, to use due
and proper care that the said van should be in a proper state of repair,
that it should not be overloaded, and that the plaintiff should be safel}'
and securely carried thereb}* : nevertheless, the defendant did not use
proper care that the van should be in a sufficient state of repair, or that
it should not be overloaded, or that the plaintiff should be safel3' and
secureh' carried thereby, in consequence of the neglect of all and each
of which duties the van gave wa}- and broke down, and the plaintiff
■was thrown with violence to the ground, and his thigh was thereby
fractured, &c. Plea, not guilt}-.

At the trial before Park, J., at the Lincolnshire Summer Assizes,
1836, the plaintiff, having given evidence to show that the injur}' arose
from the overloading of the van, and that it was so loaded with the
defendant's knowledge, had a verdict for £100. In the following
Michaelmas Term, Adams, Serjt., obtained a rule to show cause wh}'
the judgment should not be arrested, on the ground that the defendant

1 See Irwin v. Williar, 110 U. S. 499, 509-510 (1884) ; Harvey v. Merrill, 150 Masa
1, 11 (1889), s. c. Wambaugh'a Cases for Analysis, 167; Barnes v. Smith, 159 Mass
344 (1893). — Ed.

774 PRIESTLEY V. FOWLER. [CHAP. VL

was not liable in law, under the circumstances stated in the declaration.
In Hilary Term,

Goulburn^ Serjt., and N". li. Clarke^ showed cause. The declara-
tion is sufficient, at least after verdict. One objection will probably be,
that it does not state that the plaintiff was to be conve^-ed in the van,
but only that he was to go with and take the goods b}' the van. But,
taking all the allegations together, the statement is sufficient after
verdict. It is stated that the plaintiff was on the van in pursuance of
the defendant's directions. [The court intimated that the declaration
was sufficient as to this point.]

Secondl}', the action is maintainable on general principles of law.
There is no valid distinction between this case and that of an ordinary
coach passenger ; the service of the servant is the consideration here,
as the money of tlie passenger is there. [Lord Abinger, C. B. The
passenger pays his money in consideration of being carried, and there
is an implied contract that he sliall be carried safely : and he has no
means of knowing how tlie coach is constructed or loaded. Here the
servant is on the premises, and has the means of knowledge. It is not
the case of a servant hired for that particular occasion, but of a general
servant.] It does not appear on tlie face of the declaration, that the
plaintiff knew the van was overloaded, and it cannot be intended after
verdict : on the other hand, it does appear that the defendant knew
it. The question therefore is, whether a master who directs a servant
to get upon an overloaded vehicle, the servant giving his service for
taking care of the master's goods carried therein, is not liable if the
servant sustains an injury b}' its breaking down in consequence of such
overloading. It is not merely the omission of not using a sufficient
vehicle, but an act of commission in allowing it to be overloaded.
Suppose a coach passenger saw, when be got up, that the coachman
was intoxicated or the horses unruly, would his right to recover for
an injur}' in consequence be affected? [Parke, B. I apprehend the
contract would onl}- be to carr}- as safely as could be, in the condition
in which the passenger knew the vehicle to be. Lord Abinger, C. B.
Could a stage-coachman, who has a restive horse to drive, which he
knows to be so, sue his master for an injmy done him bj^ the horse?
The plaintiff was not bound to go by an overloaded van ; he consents
to take the risk. If it had appeared that the master undertook that
the van was sufficient, it would be different.] It might have been
more proper to allege that the defendant so undertook, but the decla-
ration is in substance equivalent to that, at least after vei-dict, since
it states that it was the defendant's dut}- to use proper care that
the van should not be overloaded. The promise and the duty are
co-extensive.

Adams, Serjt., contra. The cause of action, supposing that any
exists, arises out of an implied contract on the part of the master so
to load the van as that the plaintiff should be carried safelj' ; but he
cannot be made liable in this action on the case except there be h

SECT- II. I PRIESTLEY V. FOWLER. 775

common-law liability such as to raise a dut}'. To found any action
against the defendant, several circumstances must combine. First, it
must appear that the carriage was overloaded by the defendant's direc-
tion or with his knowledge ; and this it may be admitted the declaration
does disclose. Secondly, it ought to appear that the plaintiff was igno-
rant of the overloading, which is nowhere suggested. Thirdly, the
defendant must have ordered the plaintiff to go on the van. There is
no clear averment that that was the fact; the '" desire and direction"
of the defendant, in pursuance of which the plaintiif alleges that he went
on the van, is only to go with it and take care of the goods. [Lord
Abinger, C. B. That is an ambiguous expression ; the plaintiff inter-
prets the ambiguity to mean that he was to go in the van ; and we
may so interpret it after verdict.] But further, it ought to be shown
that it was necessary for the plaintiff to do so in order to perform his
duty, and (which is perhaps the same proposition in more general
terms) that the order was a lawful command, which he was bound as
a servan.t to obe}'. The mere command of the master will not render
him liable, unless the thing commanded fell fairh' within the necessity
of the servant's dut}'. There ought to have been an averment that it
was necessary for the performance of his duty of conveying the goods
that he should go in the van. But even if all these circumstances
concurred, they would not constitute a common-law liability, but a
liability arising out of a contract, and the action should have been
assumpsit, not case. To render the defendant liable in case, the
existence of malice, express or implied, was necessary.

Cur. adv. vult.

The judgment of the court was now delivered b}'

Lord Abixger, C. B. This was a motion in arrest of judgment,
after verdict for the plaintiff, upon the insufficienc}' of the declaration.
[His lordship stated the declaration.] It has been objected to this decla-
ration, that it contains no premises from which the duty of the defend-
ant, as therein alleged, can be inferred in law ; or, in other words, that
from the mere relation of master and servant no contract, and therefore
no dut3', can be implied on the part of the master to cause the servant
to be safely and securely carried, or to make the master liable for
damage to the servant arising from an\' vice or imperfection, unknown
to the master, in the carriage, or in the mode of loading and conducting
it. For, as the declaration contains no charge that the defendant knew
any of the defects mentioned, the court is not called upon to decide
how far such knowledge on his part of a defect unknown to the servant,
would make him liable.

It is admitted that there is no precedent for the present action by a
servant against a master. We are therefore to decide the question
upon general principles, and in doing so we are at libert}' to look at
the consequences of a decision the one wa}' or the other.

If the master be liable to the servant in this action, the principle of
that liability will l)e found to carry us to an alarming extent. He who
is responsible by his general duty, or by the terms of his contract. A>r

776 PKIESTLEY V. FOWLER. [CHAP. VI.

all the consequences of negligence in a matter in which he is the prin-
cipal, is responsible for tlie negligence of all his inferior agents. If the
owner of the carriage is therefore responsible for the sufficiency of his
carriage to his servant, he is responsible for the negligence of his
coacli-niaker, or his harness-maker, or his coachman. Tlie footman,
therefore, who rides heliind the carriage, may have an action against
his master for a defect in the carriage owing to the negligence of the
coach-maker, or for a defect in the harness arising from the negligence
of the harness-maker, or for drunkenness, neglect, or want of skill in
the coachman ; nor is there an}' reason why the principle should not, if
applicable in this class of cases, extend to many others. The master,
for example, would be liable to the servant for the negligence of the
chambermaid, for putting him into a damp bed; for that of the uphol-
sterer for sending in a craz}' bedstead, whereby he was made to fall
down while asleep and injure himself; for the negligence of the cook,
in not properly cleaning the copper vessels used in the kitchen ; of the
butcher, in supplying the famil}' with meat of a quality injurious to the
health ; of the builder, for a defect in the foundation of the house,
where!)}- it fell, and injured both the master and the servant b}' the
ruins.

The inconvenience, not to sa}' the absurdity of these consequences,
affords a sufficient argument against the application of this prin-
ciple to the present case. But, in truth, the mere relation of the
master and the servant never can imply an obligation on the part of
the master to take more care of the servant than he ma}- reasonably be
expected to do of himself. He is, no doubt, bound to provide for the
safety of his servant in the course of his employment, to the best of
his judgment, information, and belief. The servant is not bound to
risk his safety in the service of his master, and may, if he thinks fit,
decline any service in which he reasonably apprehends injury to him-
self : and in most of the cases in which danger may be incurred, if not
in all, he is just as likely to be acquainted with the probability and
extent of it as the master. In that sort of employment, especially, which
is described in the declaration in this case, the plaintiff must have
known as well as his master, and probably better, whether the van was
sufficient, whether it was overloaded, and whether it was likely to carry
him safely. In fact, to allow this sort of action to prevail would be an
encouragement to the servant to omit that diligence and caution which
he is in duty bound to exercise on the behalf of his master, to protect
him against the misconduct or negligence of others who serve him, and
which diligence and caution, while they protect the master, are a much
better securit}- against any injury the servant may sustain by the negli-
gence of others engaged under the same master, than any recourse
against his master for damages could possibly afford.

We are therefore of opinion that the judgment ought to be arrested.

Rule absolute.^

» See the comment in Fifield v. Northern Railroad, 42 N. H. 225, 241 (1860). — Ed.

SECT. II.] MURRAY V. SOUTH CAROLINA RAILROAD CO. 777

MURRAY V. SOUTH CAROLINA RAILROAD COMPANY.

Court of Ekuors of South Carolina. 184L

[I McMullan's Law, 385.]

Before O'Neall, J., Charleston, July extra term, 1838.

This was an action on the ease, against the defendants, for an injury
sustained in their service.^

The plaintiff was a second fireman employed by the defendants.
He selected the engineer under whom he was to serve. Upon the
plaintiff's second or third trip the engine ran over a horse, and was
thrown from the track. As a consequence, the plaintiffs leg was
crushed between the engine and the tender. There was evidence tend-
ing to show that the accident resulted from the carelessness of the
engineer in not stopping llie engine as soon as cautioned by the plain-
tiff and the other fireman. The engineer was skilful and sufficiently
experienced.

The jury were instructed that the plaintiffs service subjected him to
all the ordinary risks and perils of the employment. Each ofl3cer of
the company, as to strangers and inferiors, was to be considered as the
company ; and every command or act given or done by him must be
regarded as given or done by the company themselves. If a superior
officer had given an order to an inferior to do an act not necessar}' to
be done, and not within the duty of the inferior, and in doing it injury
resulted to the inferior, then the compan}- would be responsible. If, in
running the road, a superior oflScer (the engineer) did his duty so care-
lessly as to subject a servant of the company to unnecessary danger,
and which the servant could not avoid, then the company would be
liable. But if the peril from which the injury resulted was unavoid-
able, or if the engineer did everything ordinary prudence suggested to
avoid it, and, notwithstanding, a servant sustained injur}', it would be
one of the risks to which his contract of service subjected him, and
he could not recover. So, too, if the servant (the second fireman) did
not do his duty, and to its neglect (as not letting down the brake) the
injury might be fairl}' ascribed, then, in that case, his injury would
be attributable to himself, and he could have no redress against the
company.

The jury found for the plaintiff.

The defendants appeal on the annexed grounds: —

1. Because the plaintiff, being a fireman actually employed on the
car to which the accident occurred, cannot recover against the com-
pany in whose service he was.

2. Because the ordinary risks of the occupation of the plaintiff are

^ The reporter's statement of the evidence has been condensed. — Ed.

778 MURRAY V. SOUTH CAROLINA RAILROAD CO. |_CHAP. VL

to be sustained by himself, and tlie accident was the result of such
risks.

3. Because the plaintiff himself was parti}- in charge of the car to
which the accident occurred, and might have prevented it himself by
the timely discharge of his own duty.^ . . .

Jihinding^ for the appellants.

Cttrla, 2>ei' P^vans, J. In the consideration of the question involved
in this case, I shall assume that the verdict establishes the fact that
the plaintiff's injury was the effect of the negligence of the engineer,
and then the question arises whether the railroad company is liable to
one servant for an injury arising from the negligence of another ser-
vant. The business of the company is the transportation of goods
and passengers. Its liability in these respects is, in general, well
defined and understood b}' the profession ; and if the plaintiff's case
came within an}' of the principles applicable to these cases, we should
have no difficulty in deciding it. The application of steam power to
transi^ortation on railroads is of recent origin, but the principle by
which the liability of a carrier is fixed and ascertained is as old as the
law itself. There is nothing in the fact that the defendant is a cor-
poration, except that of necessity it must act altogether b}- agents.
The liability is precisely the same as if the defendant was an indi-
vidual acting by the agenc}- of others. The principle is the same,
whether you appl}- it to a railroad, a steamboat, a wagon, a stage-
coach, or a ship. If this plaintiff is entitled to recover, I can see no
reason why the owner of any of the above modes of conve3-ance
should not be liable under the same circumstances. If the owner of a
wagon should employ two men, one to drive and the other to load, and
either of them should so negligently perform his vs^ork as to injure the
other, the owner of the wagon would be liable. The principle will
extend to all the vocations of life wherein more than one person is
employed to effect a single object ; and a new class of liabilities would
arise which I do not think has ever heretofore been supposed to
exist. It is admitted, no case like the present has been found, nor is
there any precedent suited to the plaintiff's case unless he stands in
the relation of a passenger to the compan}-. In this point of view his
counsel has chosen to regard him, for I understand the declaration
alleges he was a passenger. Now, a passenger is everywhere spoken
of as one who pa^'s for transportation. In all the operations neces-
sary for this he is passive. The moment he becomes an operator, for
then his character is changed, he becomes the servant of the company,
and not its passenger. It w^ould be a confusion of terms so to regard
him. He is no more a passenger than a sailor or a stage-driver. There
is nothing in the definition of bailment, or the classification of the differ-
ent kinds of liability growing out of that relation, which applies to the
plaintiffs case, and if he is entitled to recover, it must be on principles
whic'li apply equally to all operations of life in which agents are
employed.

^ The other grounds of appeal were disregarded by the Court of Errors. — Ed.

SECT. II.] MURRAY V. SOUTH CAROLINA RAILROAD CO. 779

There is no question that, in general, the principal is liable for the
acts of the agent performed in the execution of his agency, or in and
about the business of his principal. Thus, the owners of a railroad
would be liable to passengers for an injury sustained by the negligence
of any of its servants, superior or subordinate, because it is implied in
the undertaking to carry, not onl}' that the road and cars are good, but
that the servants employed are competent and will perform their dut}'.
For the loss of goods the law annexes a still greater responsibility.
So, also, if one employ an agent to execute any work whereby an
Injury ma}' result to a sti'anger, the law requires it to be done with
care, and if a stranger sustain an injury, his principal is liable, as was
decided in O'Connell v. Strong, Dud. 265. But the plaintiff is neither
a passenger nor a stranger, and if he can recover, it must be in his
hermaphrodite character as a passenger-fireman. In the cases above
enumerated, the principal is represented b}- the agent, and unless he
be liable, the great operations of life cannot be carried on, — no man
would have adequate securitv for his person or his property. The
owner of goods would not trust them on a railroad or a steamboat, if
his only security was the liability of the mere servants employed. No
passenger would commit his safetj" to a railroad, steamboat, or stage-
coach, if, in case of injur\% he could look to none but the agents
usually emplo3"ed about these modes of transportation. So, also, no
man would have any guaranty for the security of his property, if his
only remedy for negligence was the irresponsible or insolvent agents
which another might emplo}'. In all these, and similar cases, the reasons
of the liability of the principal are clear, and the law books are full of
cases or precedents which apply to them ; but it is not so with the
plaintiff's case ; there is neither authorit\' nor precedent for it.

It was said in the argument that if the engineer had been the owner
of the road he would have been liable. Of this I apprehend there
would have been no doubt, but then his liability would have arisen, not
from his being the owner, but because the injury arose from his own
act. That he is now liable seems to me to admit of no doubt. But it
b}' no means follows as a consequence that because he is liable those
who emplo}' him are liable also. One acting as agent ma}' subject
himself to liabilit}' in a vai'iet}' of cases for which his principal would
not be liable ; and this may be as well in cases of contract as in cases
of tort. The extent of the liabilitv of the principal for the acts of the
agent can, in general, be readily ascertained from the object of the con-
tract and the relative position of the parties. A passenger desires to
be transported from one place to another ; the carrier undertakes to
do this, and is liable if he fails. It is wholly immaterial by whose
default the injury resulted. There has been a breach of the contract,
and he has a right to look to him with whom his contract was made,
"With the plaintiff the defendants contracted to paj- hire for his services.
Is it incident to this contract that the compan}- should guarantee him
against the negligence of his co-servants? It is admitted he takes upon

780 MURRAY V. SOUTH CAROLINA RAILROAD CO. J^CHAP. VL

himself the ordinary risks of his vocation ; wh^' not the extraordinary
ones? Neither are within his contract — and 1 can see no reason for
adding this to the already known and acknowledged liabilit}' of a
carrier, without a single case or precedent to sustain it. The engineer
no more represents the company than the plaintiff. Each in his several
department represents his principal. The regular movement of the
train of cars to its destination is tlie result of the ordinary performance
by each of his several duties. If the fireman neglects his part the engine
stands still for want of steam ; if the engineer neglects his, everything
runs to riot and disaster. It seems to me, it is, on the part of the
several agents, a joint undertaking, where each one stipulates for the
performance of his several part. The}' are not liable to the company'
for the conduct of each other, nor is the company liable to one for the
misconduct of another ; and, as a general rule, I would sa}', that where
there was no fault in the owner, he would be liable only for wages to
his servants ; and so far has this doctrine been carried, that in the case
of seamen, even wages are forfeited if the vessel be lost and no freight
earned.

In the above observations, I have endeavored to confine myself
strictly to the case before the court. It is not intended to prejudge
other questions which ma}' arise between the company and its ser-
vants ; nor do I mean to say that a case may not occur where the
owner, whether an individual or company, will be liable for the acts of
one agent to another ; but then it must be in such cases as where the
owner employs unfit and improper persons as agents, by whose igno-
rance or folly another is injured. Upon such a case, it will be time
enough to express an opinion when it arises. The present is not such
a case. The engineer, according to the evidence, was competent,
though he may have been rash in the particular instance in which the
plaintiff's injury was sustained. He was known to the plaintiff as well
as to the company, for it appears by the report that he selected the
engineer under whom he was willing or prepared to serve. It seems to
me the plaintiff is not, therefore, entitled to retain his verdict, and a
motion for a new trial is granted.

Richardson, Earle, Butler, Harper, and Dunkin, JJ. and CC,
concurred.

Johnson, C. I concur in this opinion, and will only add a word
in illustration of my own views of the question. The foundation of
all legal liability is the omission to do some act which the law com-
mands, the commission of some act which the law prohibits, or the
violation of some contract, by which the party is injured. There is
no law regulating the relative duties of the owners of a steam car, and
the persons employed by them to conduct it. The liability, if any
attaches, must therefore arise out of contract. What was the contract
between these parties? The plaintiff, in consideration that the defend-
ants would pay him so much money, undertook to perform the service
of fireman on the train. This is all that is expressed. Is there any-

SECT. II.] MUKRAY V. SOUTH CAROLINA RAILROAD CO. 781

thing more implied ? Assuming that the injury done was in conse-
quence of the negligence of the engineer, the defendants would not be
liable unless they undertook to answer for his diligence and skill. Is
that implied ? I think not. The law never implies an obligation in
relation to a matter about which the parties are or ma}', with proper
diligence, be equally' informed. No one will ever be presumed to
undertake for that which a common observer would at once know was
not true. The common case of the warranty of the soundness of a
horse, notoriously blind, ma}' be put in illustration. The warranty
does not extend to the goodness of the eyes, because the purchaser
knew, or might have known, with proper care, that they were defective.

Now, the plaintiff knew that he was not to conduct the train alone.
He knew that he was to be placed under the control of the engineer.
He knew that the employment in which he was engaged was perilous,
and that its success was dependent on the common efforts of all the
hands ; and, with proper diligence and prudence, he might have been
as well, and it does not follow that he might not have been better,
informed than the defendants, about the fitness and security of all the
appointments connected with the train. If he was not, it was his own
want of prudence, for which defendants are not responsible. If he
was, he will be presumed to have undertaken to meet all the perils
incident to the employment.

There is not the least analogy between this case and that of common
carriers of goods or transporters of persons. The}' are liable in respect
to the price paid. Not so here. The plaintiff paid nothing for his
transportation ; on the contrary, he was to be paid for his labor, and
for the perils to which he was exposed, as incident to his employment.
No prudent man would engage in any perilous employment, unless
seduced by greater wages than he could earn in a pursuit unattended
by any unusual danger.

O'Neall, J., dissenting. This case was tried by myself, and al-
though, had I been on the jury, I should have found for the defendants,
yet there were certainly facts in the evidence which might have led
another to a different conclusion ; and, therefore, I am not disposed to
disturb the verdict. This makes it necessary to consider the legal doc-
trine which I laid down to tlie jury. In substance, I held, that if the
injury to the plaintiff resulted from the negligence of the engineer,
then the plaintiff was entitled to recover. This doctrine a large
majority of my brethren think erroneous, and however much deference
is due to their opinions, yet, as I consider them to be wrong, I think it
my duty to state my own views.

This case is one of the first arising out of the conveyance of human
beings by locomotives on railroads. It goes beyond the ordinary case
of a passenger, and presents a claim on the part of a hired servant,
against his employers, for an injury sustained in their service. If it
arose out of any of the old-fashioned modes of conveyance, managed
t>y the defendants themselves, could there be a doubt that they would

782 MURRAY V. SOUTH CAROLINA RAILROAD CO. [CIIAP. VL

be liable, if the injury resulted from negligence ? Take the case of a
stage-coach, driven by the owner, and let it be siipijosed that the plain-
tiff was hired as a guard, and that he was injured in that employment,
by the careless driving of the defendant, who would hesitate to say
that he was entitled to recover? No one who had a proper regard to
legal principles. Is there any distinction in law as to the effect which
the employment of the plaintiff is to have, in the different kinds of ser-
vice in wliich he may engage? I think there is none. If Mr. Tu[)per,
the able and efficient officer of the company, had, in person, managed
the engine, and the plaintiff had been injured by his carelessness, I
would most respectfully ask, how could it be pretended that the com-
pany was not liable? I admit here, once and for all, that the plaintiff,
like an}' otiier servant, took, as consequence of his contract, the usual
and ordinar}- risks of his employment. What is meant bv this? No
more than that he could not claim for an injur}' against which the ordi-
nary prudence of his employers, their agents, or himself could pro-
vide. Whenever negligence is made out as the cause of injurv, it does
not result from the ordinar}- risks of employment.

How far are the defendants liable for the acts of the engineer? In
the language used in Bacon's Abridgement, tit. Master and Servant,
letter R, "it is highl}- reasonable that they should answer for such
substitute, at least civi'liter; and that his acts, being pursuant to the
authority given him, should be deemed the acts of the master." Now
to this authority, it will not do to say the defendants did not authorize
the engineer to run his engine so carelessly as to injure the plaintiff.
They put him in command of it, and authorized him with it to run the
road. If, in the doing of this act, which is according to their authority,
he acts negligentl}', then they are liable for the consequences, for they
result from the doing of their business, b}' one then employed by
them. The cases of Drayton ads. Moore and Parker & Co. v. Gordon,
Dudley, 268, and of O'Connell v. Strong, Id. 265, are full to this
point. In ordinary cases, this would not be questioned. But it is
supposed that this case is not governed b}- the ordinary rules applicable
to cases of liabilit}', arising out of the relation of master and servant.
I am at a loss to conceive an}' just reason for this notion. The law, it
seems to me, is to be regarded as a general science, applicable to every
case coming within the letter or the reason of the rule. Where it is
within neither, it becomes an exception to it. It is only necessary to
state this case, to see that it is within both the letter and reason of the
rule ; for the defendants employ the plaintiff to act under the command
of another of their servants. In such a case, the servant in command
is in the place of the employers. When they hire another to engage in
a service, where neither his own care nor prudence can shield him from
injury, which may arise from the act of another of their agents having
the control of him, the question of their liability depends upon the care
used by such superior agent. The ordinary rule in cases of hiring
goods is. that the hirer should nse that degree of care which a prudent

SECT. II.] MURRAY V. SOUTH CAROLINA RAILROAD CO. 783

man would take of his own goods. If this degree of care is shown,
then the hirer is not liable for any injury which may result to the goods
hired. This rule, it seems to me, must, necessarily, be that which
applies to this case. Is more favor to be bestowed on a man's goods
than on his person? It would be strange that this should be so. It
may be tested, however, by inquiring if the plaintiff, instead of him-
self, had hired his negro man to the defendants as second fireman,
and he had lost his leg by the carelessness of the engineer, would not
the defendants have been liable ? It seems to me that they would, or
one section of the law of bailments would be repealed b}- the Court of
Errors. There can be no difference in tlie law as applicable to the
white man or the slave, in a contract of hiring. Both are capable of
self-preservation, and both are capable of wrong and right action ; and
in the capacity of firemen, both are under the orders of the engineer,
and must look to him for safet}'.

In the cases of Drayton ads. Moore, and Parker & Co. v. Gordon,
Dud. 272, it was said, " When a master employs slaves in any public
employment or trust, such as tradesmen, ferrymen, wagoners, patroons
of boats, or masters of vessels in the coasting or river navigation, he
undertakes, not only for their skill and faithfulness to all who ma}'
emplo}' them, but also for their general skill and faithfulness to the
whole community." This rule stated as to slaves applies more forci-
bly to hired servants, and m}' brother Joiinson, who then resisted the
rule as to slaves, admitted it in its fullest extent as to hired servants.
Taking this as settled law, how stood the plaintiff in his contract with
the defendants in relation to the engineer? Had he not the right,
according to law, to regard the defendants as contracting both for his
skilfulness and faithfulness? It seems to me there can be no doubt
about it. Well, this being so, if the engineer was negligent, the de-
fendant's undertaking for his faithfulness was broken, and they are
most clearly liable.

It is, however, urged (and that is, as I understand, the ground on
which the Court of Errors decides the case) that this case is one of
novel impression, and not to be decided by the ordinary rules of the
law of bailment. Conveyance bv locomotives on railways is supposed
to be more analogous to shipping than anything else ; and hence,
unless a sailor could recover for an injury arising from the neglect of
the master, it is supposed that a fireman cannot, for an injury arising
from the neglect of the engineer. Before I discuss the case in this
new aspect, I deny that any mode of conveyance on land is to be
put on a footing with the navigation of the ocean in ships. That
is governed by principles of law coeval with society, and m many
respects common to every civilized nation of the earth. Conve}-
ances on land are also regulated by a very ancient and well-settled
law wholly distinct from the other. It will, however, be sufflcient
to show, by one plain view, that the law applicable to mariners
cannot affect this case. Unless a vessel earns freight, the mariner is

784 MURRAY l\ SOUTH CAROLINA RAILROAD CO. [CIIAP. VL

entitled to no wages. Suppose a locomotive running from Charleston
to Ailcen should burn up the entire train, and tlius earn no freight,
would not all the hands hired by the defendants to manage ber be
entitled to their wages? There could be no more doubt that they
would, than that a man hired to drive my wagon to Charleston, who,
b}' some unforeseen accident, should lose his load, would still be entitled
to his wages. This shows that in the very beginning there is such a
difference in the law of a ship and that of a locomotive that it is
impossible the law of the former can decide the right of a servant
employed in the latter to recover for an injury arising from the neglect
of the engineer.

But if it were otherwise, and this case depended upon maritime law,
still I am inclined to think the plaintiff ought to recover. No exactly
analogous case can be found. In Pliillips on Insurance, 463, Judge
Stor}' is represented as saying, in the case of The Saratoga: "It ap-
pears to me, that upon the established doctrine of our law, where the
freight is lost by inevitable accident, the seamen cannot recover wages,
as such, from the shipowner." I concede that this dictum is the true
law regulating a mariner's right to wages. If the freight was lost by
the master's neglect, it could not then be ascribed to inevitable acci-
dent ; and then, I think, the seaman would be entitled to recover. If
this is true in relation to wages, the same rule must hold as to the
mariner's right to recover for an}^ injurj' arising from the negligence of
the master.

But it is said, it would be impolitic to make the defendants liable for
any injury accruing to a fireman from the neglect of the engineer.
This would be worth inquiring into with great care in the legislature ;
but, in a court, I think we have nothing to do with the policy of a case ;
the law of it is our guide. But if we are to look to the policy-, then I
should argue that the more liability imposed on the railroad compan}',
the more care and prudence would be thereby elicited. This result is
what the communit}' desires. For it secures life and property com-
mitted to their care.

I think the motion ought to be dismissed.

Gantt, J., concurred.

J. Johnston, Chancellor, also dissenting. It maj' not diminish the
force of the observations made bj' Mr. Justice O'Neall, if I state ver3-
briefl}' the reasons which induce me to concur in his dissent. It is ad-
mitted that the duties and liabilities between masters and hired servants
result only from the nature and terms of the contract wnich forms the
relation ; and that neither party is allowed to extend or abridge the
contract. That the master cannot exact other services than those
stipulated for ; nor, by an}' indirection, subject the servant to an}'^
other than the ordinary perils incident to the employment ; and that if
he does b}' any agency whatever, or by an}' means, whether of design or
negligence, accumulate upon the servant, while in the performance of
his duty, any dangers bej'ond those inherent in the service itself, they fall

SECT. II.] MUKRAY V. SOUTH CAROLINA RAILROAD CO. 785

upon the latter, not as a servant (for bis contract does not bind him to
endure them), but as a man, and the law entitles him to redress.

It is also admitted that these principles are not confined to cases
where one servant only is employed, but prevail when a plurality are at
the same time engaged by the same master. Their aijplication, how-
ever, in cases of the latter description, depends upon the terms of the
contract. If several jointly contract to perform a specified duty, the
master is not liable to either of them for injuries resulting from
the faithlessness or negligence of his coadjutor ; all of them being, sub-
stantiall}', agents for each other, to perform their joint undertaking.
But when their engagements are several, each undertaking for himself
to perform distinct offices, in a matter susceptible of a division of labor,
each stands to the master in the same relation, and is entitled to the
same rights, as if he was the onh' servant employed. The master is
responsible to him, as he would be to a stranger, for the misconduct of
the others, who are exclusively his, the master's, agents. Now, this is
admitted to be the general law upon the subject ; and it is applicable to
the servants of a railroad company, as well as to those of an}- other
emplover, unless there be something to take them out of its operation.
No instance of master and servant has been pointed out where these
principles do not obtain, except the case of a ship's crew ; but that
stands clearl}- upon special grounds of usage. If the servants em-
ployed about a railroad are excepted out of the general rules relating
to agenc}-, the exception, with the grounds and reasons of it, must be
shown, otherwise the employers will be as liable to an}' one engaged in
their service, for injuries inflicted on him by other agents, in the course
of their employment, as a planter would be to a hired hand for mal-
treatment by his overseer.

I presume no one will contend that the rule applicable to service
in a railroad company is, that the company is not liable to any agent,
for any injury, provided the company can only show that another of its
agents has inflicted it. Would it do to say, for example, — and upon
what principle could it be said, — that a superintendent of the hands
engaged in repairing the road may, with impunity to the company,
abuse his authority to the injury of their health? Or, if the cars were
to be run at night, and, through the neglect of hands set apart to
watch the road and remove obstructions, the whole train were lost, and
any officer or hand on board were crippled, certainly no one means to
assert that none of these could claim compensation from the company,
but must look exclusively to the irresponsible agents (perhaps slaves),
hired by the company, through whom the injury accrued. And yet,
how is a rule to be laid down — I wish to hear the rule stated — which
would include that case and exclude this ? The fidelity of the
hands detailed to superintend the road, in the case I have supposed,
would be as essential to the common enterprise of running the cars, as
the fidelity of the hands on board to their respective duties. If the idea
is indulged, that there is, in any branch of this enterprise, an implied

786 FARWELL V. BOSTON, ETC. RAILROAD CORP. [CHAP. VI.

undertaking among tlie servants to do the work jointly, and to waive
the neglect of each other, what will constitute such an understanding?
Where are its limits? Does it arise from the intimate connection of the
haiuls? Then I wish to be informed what degree of intimac\-, what
strength of association, is demanded, to raise the implication? Where
is the line?

I give no opinion upon the evidence. I take the verdict for the
facts; and, according to the finding of the jur}-, the plaintilf faithfully
performed his particular dutN', and, while performing it, was injured by
the faithlessness or negligence with which the compan}', acting in the
person of another agent, executed a duty incumbent upon them. Ought
the plaintiff's remedy to be doubtful?

The elements of the contract between him and the defendants are
these : on their part, so far as they were to contribute to the propelling
of the cars, that the}' would carry him safely ; and, on his part, that on
the trip he would perform certain offices. With respect to the last, he
was their servant ; with regard to the first, he was their passenger ;
and as their passenger they have crippled him. The distinction is
plain, and the proprietv of applying it would be as plain, if instead of
being stationed where he was, he had only been a clerk, hired by the
company, to travel up and down in the cars, and take a minute of their
operations. Yet, on principle, no discrimination can be drawn against
him on account of his being a fireman, and not travelling clerk ; be-
cause he had as little connection with, or control over, the department
from which his injury sprang, or the agent to whom it was exclusively
committed by the defendants, as if he had been assigned any imagi
nable duty in the remotest part of the train.

FARWELL V. THE BOSTON AND WORCESTER RAILROAD

CORPORATION.

Supreme Judicial Court of Massachusetts. 1842.

[4 Met. 49.]

In an action of trespass upon the case, the plaintiff alleged in his
declaration that he agreed with the defendants to serve them in the
employment of an engineer in the management and care of their en-
gines and cars running on their railroad between Boston and Worcester,
and entered on said emplovment, and continued to perform his duties
as engineer till October 30, 1837, when the defendants, at Newton, by
their servants, so carelessly, negligently, and unskilfully managed and
used, and put and placed the iron match rail, called the short switch,
across the rail or track of their said railroad, that the engine and cars,
upon which the plaintiff was engaged and employed in the discharge

SECT. II.] FARWELL V. BOSTON, ETC. RAILROAD CORP. 787

of his said duties of engineer, were thrown from the track of said rail-
road, and the plaintiff, by means thereof, was thrown with great vio-
lence upon the ground ; l\v means of which one of the wheels of one of
said cars passed over the right hand of the plaintiff, crushing and
destroying the same.

The case was submitted to the court on the following facts agreed by
the parties: " The plaintiff was employed by the defendants, in 1835,
as an engineer, and went at first with the merchandise cars, and after-
wards with the passenger cars, and so continued till October 30, 1837,
at the wages of two dollars per day ; that being the usual wages paid
to engine-men, which are higher than the wages paid to a machinist, in
which capacity the plaintiff formerly was employed.

•■'On the 30th of October, 1837, the plaintiff, then being in the em-
ployment of the defendants, as such engine-man, and running the pas-
senger train, ran his engine off at a switch on the road, which had been
left in a wrong condition (as alleged by the plaintiff, and, for the pur-
poses of this trial, admitted by the defendants) by one Whitcomb, an-
other servant of the defendants, who had been long in their employ-
ment, as a switch-man or tender, and had the care of switches on the
road, and was a careful and trustworth}' servant in his general
character, and as such servant was well known to the plaintiff. By
which running off, the plaintiff sustained the injury complained of in
his declaration.

" The said B'arwell (the plaintiff) and Whitcomb were both appointed
by the superintendent of the road, who was in the habit of passing
over the same verj- frequently in the cars, and often rode on the engine.

" If the court shall be of opinion that, as matter of law, the defend-
ants are not liable to the plaintiff, he being a servant of the corpo-
ration, and in their emplo3'ment, for the injurv he may have received
from the negligence of said Whitcomb, another servant of the cor-
poration, and in their employment, then the plaintiff shall become
nonsuit ; but if the court shall be of opinion as matter of law, that
the defendants may be liable in this case, then the case shall be sub-
mitted to a jury upon the facts which may be proved in the case ; the
defendants alleging negligence on the part of the plaintiff."

C. G. Loriiuj, for the plaintiff.

Fletcher db J/om/, for the defendants.

Shaw, C. J. This is an action of new impression in our courts, and
involves a principle of great importance. It presents a case where two
persons are in the service and employment of one compan}', whose
business it is to construct and maintain a railroad, and to employ their
trains of cars to carry persons and merchandise for hire. The}- are
appointed and employed by the same compan}- to perform separate
duties and services, all tending to the accomplishment of one and the
same purpose, — that of the safe and rapid transmission of the trains ;
and they are paid for their respective services according to the nature
of their respective duties, and the labor and skill required for their

788 FA.R\VELL V. BOSTON, ETC. RAILROAD CORP. [CHAP. VI.

proper performance. The question is, whether, for damages sustained
by one of the persons so employed, b}' means of the carelessness and
negligence of another, the party injured has a remedy against the com-
mon employer. It is an argument against such an action, though cer-
tainly not a decisive one, that no such action has before been
maintained.

It is laid down bj- Blackstone, that if a servant, by his negligence,
does any damage to a stranger, the master shall be answerable for his
neglect. But the damage must be done while he is actuall}' emplo3"ed
in the master's service ; otherwise, the servant shall answer for his own
misbehavior. 1 Bl. Com. 431 ; M'Manus v. Crickett, 1 East, 106.
This rule is obviousl}' founded on the great principle of social dut}',
that every man, in the management of his own affairs, whether bj'
himself or by his agents or servants, shall so conduct them as not to
injui'e another ; and if he does not, and another thereby sustains dam-
age, he shall answer for it. If done b}' a servant, in the course of his
employment, and acting within the scope of his authority, it is con-
sidered, in contemplation of law, so far the act of the master that the
latter shall be answerable civiliter. But this presupposes that the par-
ties stand to each other in the relation of strangers, between whom
there is no privity ; and the action, in such case, is an action sounding
in tort. The form is trespass on the case, for the consequential dam-
age. The maxim respondeat superior is adopted in that case, from
general considerations of polic}' and security.

But this does not appl}' to the case of a servant bringing his action
against his own emplo3-er to recover damages for an injury arising in
the course of that emplo3ment, where all such risks and perils as the
emplo3-er and the servant respectivel3' intend to assume and bear may
be regulated b3' the express or implied contract between them, and
which, in contemplation of law, must be presumed to be thus regulated.

The same view seems to have been taken by the learned counsel for
the plaintiff in the ai'gument ; and it was conceded that the claim could
not be placed on the principle indicated b3' the maxim respondeat
superior^ which binds the master to indemnif3' a stranger for the dam-
age caused b3' the careless, negligent, or unskilful act of his servant in
the conduct of his affairs. The claim, therefore, is placed, and must be
maintained, if maintained at all, on the ground of contract. As there
is no express contract between the parties applicable to this point, it
is placed on the footing of an implied contract of indemnity, arising
out of the relation of master and servant. It would be an implied
promise, arising from the dut3' of the master to be responsible to each
person emplo3'ed by him, in the conduct of ever3' branch of business,
where two or more persons are emplo3-ed, to pa3' for all damage occa-
sioned b3' the negligence of ever3' other person employed in the same
service. If such a dut3' were established by law — like that of a com-
mon carrier, to stand to all losses of goods not caused b3' the act of
God or of a public enem3' — or that of an innkeeper, to be responsible,

SECT. II.] FARWELL V. BOSTON, ETC. RAILROAD CORP. 789

in like manner, for the baggage of his guests ; it would be a rule of fre-
quent and familiar occurrence, and its existence and application, with
all its qualifications and restrictions, would be settled by judicial pre-
cedents. But we arc of opinion that no such rule has been established,
and the authorities, as far as the}' go, are opposed to the principle.
Priestley v. Fowler, 3 Mees. & Welsh. 1 ; Murray v. South Carolina
Railroad Company, 1 McMuUan, 880.

The general rule, resulting from considerations as well of justice as
of policy, is, that he who engages in the emplo3'ment of another for the
performance of specified duties and services, for compensation, takes
upon himself the natural and ordinary risks and perils incident to the
performance of such services, and in legal presumption, the compensa-
tion is adjusted accordingly. And we are not aware of any principle
which should except the perils arising from the carelessness and negli-
gence of those who are in the same employment. These are perils
which the servant is as likely to know, and against which he can as
effectually guard, as the master. They are perils incident to the ser-
vice, and which can be as distinctly foreseen and provided for in the
rate of compensation as any others. To say that the master shall be
responsible because the damage is caused by his agents, is assuming
the very point which remains to be proved. They are his agents to
some extent, and for some purposes; but whether he is responsible, in
a particular case, for their negligence, is not decided by the single fact
that they are, for some purposes, his agents. It seems to be now well
settled, whatever might have been thought formerly, that underwriters
cannot excuse themselves from payment of a loss by one of the perils
insured against, on the ground that the loss was caused by the negli-
gence or unskilfulness of the officers or crew of the vessel, in the per-
formance of their various duties as navigators, although employed and
paid by the owners, and, in the navigation of the vessel, their agents.
Copeland i'. New England Marine Ins. Co., 2 Met. i40-443, and cases
there cited. I am aware that the maritime law has its own rules and
analogies, and that we cannot alwa3's safel}' rely upon them in applying
them to other branches of law. But the rule in question seems to be a
good authority for the point that persons are not to be responsible, in
all cases, for the negligence of those employed by them.

If we look from considerations of justice to those of policy, they will
strongly lead to the same conclusion. In considering the rights and
obligations arising out of particular relations, it is competent for courts
of justice to regard considerations of policy and general convenience,
and to draw from them such rules as will, in their practical application,
best promote the safety and security of all parties concerned. This is,
in truth, the basis on which implied promises are raised, being duties
legally inferred from a consideration of what is best adapted to pro-
mote the benefit of all persons concerned, under given circumstances.
To take the well-known and familiar cases already cited ; a common
carrier, without regard to actual fault or neglect in himself or his ser-

790 FARWELL V. BOSTON, ETC. RAILROAD CORP. [CHAP. VL

vants, is made liable for all losses of goods confided to him for carriage,
except those caused by the act of God or of a public enem^-, because he
can best guard them against all minor dangers, and because, in case of
actual loss, it would be extremely diflicult for the owner to adduce
proof of embezzlement, or other actual fault or neglect on the part of
the carrier, although it may have been the real cause of the loss. The
risk is therefore thrown u[)on the carrier, and he receives, in the form
of payment for the carnage, a premium for the risk which he thus as-
sumes. So of an innkeeper ; he can best secure the attendance of
honest and faithful servants, and guard his house against thieves.
Whereas, if he were responsible only upon proof of actual negligence,
he might connive at the presence of dishonest inmates and retainers,
and even participate in the embezzlement of the property of the guests
during the hours of their necessary sleep, and yet it would be difficult,
and often impossible, to prove these facts.

The liability of passenger carriers is founded on similar considera-
tions. The}' are held to the strictest responsibility for care, vigilance,
and skill, ou the part of themselves and all persons employed by them,
and they are paid accordingh'. The rule is founded on the expediency
of throwing the risk upon those who can best guard against it. Story
on Bailments, § 590, et seg.

We are of opinion that these considerations apply strongly to the
case in question. Where several persons are emplo3'ed in the conduct
of one common enterprise or undertaking, and the safet}' of each de-
pends much on the care and skill with which each other shall perform
his appropriate duty, each is an observer of the conduct of the others,
can give notice of anj' misconduct, incapacity, or neglect of dut}-, and
leave the service, if the common employer will not take such precau-
tions, and employ such agents, as the safety of the whole party maj'
require. By these means, the safety of each will be much more effec-
tually secured than could be done by a resort to the common employer
for indemnity in case of loss by the negligence of each other. Regard-
ing it in this light, it is the ordinary case of one sustaining an injury
in the course of his own employment, in which he must bear the loss
himself, or seek his remedy, if he have any, against the actual wrong-
doer.^

In applying these principles to the present case, it appears that the
plaintiff was employed by the defendants as an engineer, at the rate of
wages usually paid in that employment, being a higher rate tlian the
plaintiff had before received as a machinist. It was a voluntary under-
taking on his part, with a full knowledge of the risks incident to the
employment ; and the loss was sustained by means of an ordinary
casualty, caused by the negligence of another servant of the company.
Under these circumstances, the loss must be deemed to be tlie result

1 See Winterbottom v. Wright, 10 M, & W. 109; Milligan v. Wedge, 12 Ad. &
E. 737. — Rep.

SECT. II.J FARWELL V. BOSTON, ETC. RAILROAD CORP. 791

of a pure accident, like those to which all men, in all employments, and
at all times, are more or less exposed ; and like similar losses from
accidental causes, it must rest where it first fell, unless the plaintiff has
a remed}- against the person actually in default ; of which we give no
opinion.

It was strongly pressed in the argument, that although this might be
80, where two or more servants are employed in the same department
of duty, where each can exert some influence over the conduct of the
other, and thus to some extent provide for his own security ; yet that
it could not apply where two or more are employed in different depart-
ments of duty, at a distance from each other, and where one can in no
degree control or influence the conduct of another. But we think this
is founded upon a supposed distinction, on which it would be extremely
difficult to establish a practical rule. When the object to be accom-
plished is one and the same, when the employers are the same, and the
several persons employed derive their authority and their compensation
from the same source, it would be extremely difficult to distinguish
what constitutes one department and what a distinct department of
duty. It would vary with the circumstances of every case. If it were
made to depend upon the nearness or distance of the persons from
each other, the question would immediateh* arise, how near or how dis-
tant must the}' be, to be in the same or diflerent departments. In a
blacksmith's shop, persons working in the same building, at different
fires, may be quite independent of each other, though only a few feet
distant. In a ropevvalk, several may be at work on the same piece of
cordage, at the same time, at man}' hundred feet distant from each
other, and beyond the reach of sight and voice, and yet acting to-
gether.

Besides, it appears to us, that the argument rests upon an assumed
principle of responsibilit}' which does not exist. The master, in the
case supposed, is not exempt from liabilit}', because the servant has
better means of providing for his safet}', when he is employed in imme-
diate connection with those from whose negligence he might suffer ; but
because the imjyUed cojitract of the master does not extend to indem-
nify the servant against the negligence of an}' one but himself; and he
is not liable in tort, as for the negligence of his servant, because the
person suffering does not stand towards him in the relation of a
stranger, but is one whose rights are regulated by contract express or
implied. The exemption of the master, therefore, from liability for the
negligence of a fellow-servant, does not depend exclusively upon the
consideration that the servant has better means to provide for his own
safety, but upon other grounds. Hence the separation of tlie emplo\'-
ment into different departments cannot create that liability, when it
does not arise from express or im[)lied contract, or from a responsibility
created by law to third persons, and strangers, for the negligence of a
servant.

A case may be put for the purpose of illustrating this distinction.

792 FAKWELL V. BOSTON, ETC. RAILROAD CORP. [CHAP. VI.

Suppose the road had been owned by one set of proprietors whose duty
it was to keep it in repair and liave it at all times read}' and in fit con-
dition for the running of engines and cars, taking a toll, and that the
engines and cars were owned by another set of proprietors, pajung toll
to the proprietors of the road, and receiving compensation from passen-
gers for their carriage ; and su[)pose the engineer to suffer a loss from
the negligence of the switch-tender. We are inclined to the opinion
that the engineer might have a remed\' against the railroad corporation ;
and if so, it must be on the ground that as between the engineer em-
plo3ed by the proprietoi's of the engines and cars, and the switch-tender
employed by the corporation, the engineer would be a stranger, between
whom and the corporation there could be no privity of contract ; and
not because the engineer would have no means of controlling the con-
duct of the switch-tender. The responsibilit}' which one is under for
the negligence of his servant, in the conduct of his business, towards
third persons, is founded on another and distinct principle from tliat of
implied contract, and stands on its own reasons of policy. The same
reasons of policy, we think, limit this responsibility to the case of
strangers, for whose security alone it is established. Like consider-
ations of policy and general expedienc}' forbid the extension of the
principle, so far as to warrant a servant in maintaining an action
against his employer for an indemnity which we think was not contem-
plated in the nature and terms of the emplojment, and which, if estab-
lished, would not conduce to the general good.

In coming to the conclusion that the plaintiff, in the present case, is
not entitled to recover, considering it as in some measure a nice ques-
tion, we would add a caution against any hasty conclusion as to the ap-
plication of til is rule to a case not full}' within the same principle. It
may be varied and modified by circumstances not appearing in the pres-
ent case, in which it appears that no wilful wrong or actual negligence
was imputed to the corporation, and where suitable means were fur-
nished and suitable persons employed to accomplish the object in view.
We are far from intending to say that there are no implied warranties
and undertakings arising out of the relation of master and servant.
Whether, for instance, the employer would be responsible to an engineer
for a loss arising from a defective or ill-constructed steam engine :
Whether this would depend upon an implied warranty of its goodness
and suflScienc}-, or upon the fact of wilful misconduct, or gross negli-
gence on the part of the emi)loyer, if a natural person, or of the su-
perintendent or immediate representative and managing agent, in
case of an incorporated company — are questions on which we give no
opinion. In the present case the claim of the plaintiff is not put on
the ground that the defendants did not furnish a sufficient engine, a
proper railroad track, a well-constructed switch, and a person of suit-
able skill and experience to attend it ; the gravamen of the complaint
is, that that person was chargeable with negligence in not changing the
Bwitch, in the particular instance, by means of which the accident

SECT. II.] FARWELL V. BOSTON, ETC. RAILROAD CORP. 793

occurred, by which the plaintiff sustained a severe loss. It ouglit, per-
haps, to be stated, in justice to the person to whom this neghgcnce is
imputed, that the fact is strenuously denied by the defendants, and lias
not been tried b}' the jury. By consent of the parties, this fact was
assumed without trial, in order to take the opinion of the whole court
upon the question of law, whether, if such was the fact, the defendants,
under the circumstances, were liable. Upon this question, supposing
the accident to have occurred, and the loss to have been caused, by the
negligence of the person employed to attend to and change the switch,
in his not doing so in the particular case, the court are of opinion that
it is a loss for wliich the defendants are not liable, and that the action
cannot be maintained. Plaintiff nonsuit.^

1 Ace: Hutchinson o. York, 5 Exch. 343 (1850); Wigmore v. Jay, 5 Exch. 354
(1850).

In Bartonshill Coal Co. v. Reid, 3 Macq. 266, 282-284 (1858), Lord Cuanworth
said : —

" Where an injury is occasioned to any one by the negligence of another, if the
person injured seeks to charge with its consequences any person other than him who
actually caused the damage, it lies on the person injured to show that the circum-
stances were such as to make some other person responsible. In general it is sufficient
for this purpose to show that the person whose neglect caused the injury was at the
time when it was occasioned acting, not on his own account, but in the course of liis
employment as a servant in the business of a master, and that the damage resulted
from the servant so employed not having conducted his master's business with due
care. In such a case the maxim ' Resjwudeat superior ' prevails, and the master ia
responsible.

" Thus, if a servant, driving his master's carriage along the highway, carelessly
runs over a bystander, or if a gamekeeper employed to kill game carelessly fires at a
hare so as to shoot a person passing on the ground, or if a workman employed by a
builder in building a house negligently throws a stone or brick from a scaffold, and
BO hurts a passer-by ; — in all these cases (and instances might be multiplied indefi-
nitely) the person injured has a right to treat the wrongful or careless act as tlie act
of tiie master : Qui Jlicit per alitiin facit perse. If the master himself had driven liis
carriage improperly, or fired carelessly, or negligently thrown the stone or brick, he
would have been directly responsible, and the law does not permit him to escape lia-
bility liecause the act complained of was not done with his own hand. He is consid-
ered as bound to guarantee third persons against all hurt arising from the carelessness
of himself or of those acting under liis orders in the course of his business. Third
persons cannot, or at all events may not, know whether the particular injury com-
plained of was the act of the master or the act of his servant. A person sustaining
injury in any of the modes I have suggested has a right to say, 'I was no party to
your carriage being driven along the road, to your shooting near the public highway,
or to your being engaged in building a house. If you choose to do, or cause to be
done, any of these acts, it is to you, and not to your servants, I must look for redress
if mischief happens to me as their consequence.' A large portion of the ordinary acts
of life are attended with some risk to third persons, and no one has a right to involve
others in risks without their consent. This consideration is alone sufficient to Justity
the wisdom of the rule which makes the person by whom or by whose orders these
risks are incurred responsible to third persons for any ill consequences resulting from
want of due skill or caution

" But do the same principles apply to the case of a workman injured by the want
of care of a fellow-workman engaged together in the same work 1 I think not.
When the workman contracts to do work of any particular sort, he knows, or ought
to know, to what riaka be is exposiufi: hipaaeli •- ba knows, if auch be the nature of the

794 GILLSHANNON V- STONY BROOK RAILROAD CORP. [CHAP. VI.

GILLSHANNON v. THE STONY BROOK RAILROAD
CORPORATION.

Supreme Judicial Coukt ob^ Massachusetts. 1852.

[10 Cash. 228.]

Action on the case for injuries sustained b}' the plaintiff, a laborer in
the employment of the defendants, by the negligence of their servants
and agents. It was tried in this court before Bigelow, J., by whom the
evidence was reported for the consideration of the whole court. From
this evidence it appeared that the plaintiff was a common laborer,
employed in repairing the defendants' road-bed, at a place several miles
from his residence. Each morning and evening, he rode with other
laborers to and from the place of labor on the gravel train of the
defendants. This was done with the consent of the company, and for
mutual convenience ; no compensation being paid, directly or indirectly
by the laborers, for the passage, and the company being under no
contract to convey the laborers to and from their work.

While thus on the way to their work on one occasion, a collision
took place with a hand-car on the track, through the negligence of
those having charge of tlie gravel train, as the plaintiff contended, and
he was thrown off and run over by the gravel train, for which injury
this action was brought. The plaintiff had no charge or care over the
gravel train, and there was some evidence that the gravel train was
not sufficiently supplied with brakemen. If upon these facts the jury
would be justified in finding a verdict for the plaintiff, the case was to
stand for trial ; otherwise the plaintiff to become nonsuit.

J3. F. Butler {J. G. Abbott with him), for the plaintiff.

T. Wenttoorth {G. F. Farley with him), for the defendants.

Dewey, J. If the relation existing between these parties was that
of master and servant, no action will lie against the defendants for an
injury received by the plaintiff in the course of that service, occasioned
by the negligence of a fellow-servant. Farwell v. Boston and Worces-
ter Railroad, 4 Met. 49 ; Hayes v. Western Railroad, 3 Cush. 270.

It was attempted on the argument for the plaintiff to take the case
out of the rule stated in those cases, upon the ground that the nature
of the employment of these servants was different, the plaintiff being
employed as a laborer in constructing the railroad bed, and not engaged
in any duty connected with running the trains, and so not engaged in

risk, that want of care on the part of a fellow-workman may be injurious or fatal to
him, and that against such want of care his employer cannot by possibility protect
him. If such want of care should occur, and evil is the result, he cannot say that he
does not know whether the master or the servant was to hlame. He knows that the
blame was wholly that of the servant. He cannot say the master need not have en-
gaged in the work at all, for he was party to its being undertaken."
The principal case is reprinted in 3 Macq. 316. — Ed.

SECT. II.] ASHWOliTII V. STANWIX. 795

any common enterprise. The case of Albro v. Agawam Canal Co., 6
Cush. 75, seems to be adverse to these views, and goes strongly to
sustain the defence.

It was also urged that the plaintiff was not in the employment of the
defendants at the time the injury was received, or that he might prop-
erly be considered as a passenger, and the defendants, as respects him,
were carriers for hire. But as it seems to us, in no view of the case
can this action be maintained. If the plaintiff was b}' the contract of
service to be carried by the defendants to the place for his labor, then
the injury was received while engaged in the service for which he was
emplo3ed, and so falls witliin the ordinary cases of servants sustaining
an injury from the negligence of other servants. If it be not properly
inferable from the evidence that the contract between the parties actu-
all}^ embraced this transportation to the place of labor, it leaves the
case to stand as a permissive privilege granted to the plaintiff, of which
he availed himself, to facilitate his labors and service, and is equally
connected with it, and the relation of master and servant, and therefore
furnishes no ground for maintaining this action.

How does the case differ from that suggested at the argument by the
counsel for the defendants, who supposed a case where the business
for which the part}' is employed, is that of cutting timber, or standing
wood, and the servant receives an injury in his person on the wa}' to
the timber-lot, by the overturning of the vehicle in which he is carried,
b}' the negligence or careless driving of another servant? There is no
liabilit}- on the part of the master in such a case.

It seems to the court, that upon the evidence offered in the present
case, the plaintiff was not entitled to a verdict, and the nonsuit should
stand . I^la intiff n onsu it. ^

ASH WORTH V. STANWIX and WALKER.

Queen's Bench. 1861.

[3 E. i^- E. 701.]

Declaration. That defendants were possessed of a certain coal pit,
wherein there was a shaft ; and that plaintiff was lawfully employed in
the said pit at the bottom of the said shaft ; and in which said pit a cer-
tain corf was used by defendants for the purpose of raising coal from
the said pit to the mouth of the said shaft ; yet defendants so negligently
guarded the mouth of the said shaft, and so carelessly used and man-
aged the said corf, and took so little care of a certain plate or rail of
defendants at the mouth of the said shaft, that, by reason of the care-

1 Ace: Tunney v. Midland Railway Co., L. U. 1 C. P. 291 (1861); Vick ;-. N. Y.
C. & H. R. Railroad Co., 9.5 N. Y. 267 (1884) ; McGuirck v. Shattuck, 160 Mass. 45
(1893).

Contra: O'Donnell v. Allegheny Valley Railroad Co., 59 I'a. 239 (1868). — Ed.

796 ASHWORTII V. STANWIX. [CHAP. VL

lessness, &c., of defendants the said plate or rail fell down the said
shaft, and struck plaintiff on the head with great force and violence,
and fractured his skull ; whereby plaintiff became, was and is per-
manently injured, &g.

Pleas. 1. Not guilt}'. 2. Not possessed. Issue thereon.

At the trial before Blackburn, J., at the Durham Spring Assizes,
1860, it appeared that the two defendants were lessees of a coal pit,
and were, in that respect, in partnership together. The plaintiff was
a pitman emplo3'ed in the pit by them. On the da}' when the accident
happened he was so employed, and the defendant Walker was acting
as banksman at the mouth of the shaft. For the purpose of emptying
the corves as they came up full of coal from the pit, there was a short
tramway made of the usual rails or plates. The banksman's duty was
to receive the full corf as it came up, to place it on a tram which trav-
elled upon the tramway, and to hook on the corf which was to go down
empty. There was evidence that one of the tramplates was loose, and
it appeared that while the defendant Walker was acting as banksman,
and after he had been told of the insecure state of this tramplate, it fell
down the pit and caused severe injury to the plaintiff, who was stand-
ing at the bottom of the shaft. The defendant Walker was clearly
guilty of negligence ; but it was not shown that Stanwix, who was
absent at the time of the accident, knew that the tramplate was loose.

The jury found a verdict for the plaintiff as against Walker, and by
the direction of the learned Judge a verdict for the defendant Stanwix ;
leave being reserved to the plaintiff" to move to enter a verdict against
both defendants.

Manistij had obtained a rule calling on the defendant Stanwix to
show cause why a verdict should not be entered for the plaintiff against
both the defendants, on the ground that there was evidence to go to
the jury upon which they might reasonably have found a verdict for the
plaintiff against Stanwix, as well as against Walker.

Ovei'end showed cause. ^

Manisty and Davison, contra. Car. adv. vult.

Crompton, J., now delivered the judgment of the Court. The ques-
tion to be determined in this case is, whether the defendant Stanwix,
being co-proprietor with the other defendant. Walker, of a mine, is
jointly liable with him for an injury sustained by the plaintiff, a work-
man in their common employ, through the negligence of the defendant
Walker. The facts are such that, if the defendant Walker had been
simply the fellow-workman of the plaintiff, the case would have come
within the principle that a servant sustaining injury from the negligence
of a fellow-servant engaged in the same employment, cannot recover
against the common master. The present case would then have been quite

1 In the course of this argument, Cockburx, C. J., asked : " Can a servant be
supposed to contemplate the peculiar risk of an injury caused by the negligence of
his master while acting as a fellow-servant 1 " — Ed.

SECT. II.] ASHWORTH V. STANWIX. 797

analogous to that of Bartonsbill Coal Company r. Reid, 3 McQ. Sc.
App. Ca. 266. But the present case is distinguishable from the class of
cases which have been referred to, in the important particular that the
defendant Walker, although in fact engaged jointly with the plaintiff in
the work of the mine, was also a co-proprietor, and, as such, one of
the plaintiff's masters; and the question is, whether this circumstance
takes the case out of the before-mentioned rule, and calls for the appli-
cation of a different principle. We are of opinion that it does, and that
the plaintiff is entitled to hold the defendant Stanwix responsible for
the negligence of his co-proprietor and partner. The doctrine that a
servant, on entering the service of an employer, takes on himself, as a
risk incidental to the service, the chance of injury arising from the negli-
gence of fellow-servants engaged in the common employment, has no
application in the case of the negligence of an employer. Though the
chance of injury from the negligence of fellow-servants may be sup-
posed to enter into the calculation of a servant in undertaking the
service, it would be too much to say that the risk of danger from the
negligence of a master, when engaged with him in their common work,
enters in like manner into his speculation. From a master he is entitled
to expect the care and attention which the superior position and
presumable sense of dutv of the latter ought to command. The relation
of master and servant does not the less subsist because, by some
arrangement between the joint masters, one of them takes on himself
the functions of a workman. It is a fallacy to suppose that on that
account the character of master is converted into that of a fellow
laborer. Though engaged w'ith the plaintiff in a common emploj'ment,
Walker did not the less remain the master of the plaintiff, and the
partner of the defendant Stanwix. This being so, it follows that Stan-
wix must be liable in respect of the negligence through which injury
has arisen to the plaintiff, as the relation of partner subsisted between
Walker and Stanwix ; and as the negligence was a matter within the
scope of a common undertaking we think that Stanwix is equally liable
with Walker. That a partner is liable for the negligence of his copart-
ner when engaged in the business of the partnership is not only clear
in principle, but is established bv the case of Moreton r. Hordern, 4 B.
& C. 223 (E. C. L. R. vol. 10), in this Court, where two proprietors of
a stage-coach were held liable with a third for the negligence of the
latter, bj- whom the coach had been driven. Now it has never been
doubted that for personal negligence of the master, whereb}- injury
is occasioned to the servant, the master will be liable. Personal neg-
ligence is clearly established against Walker; and, it being admitted
that the defendant Stanwix was his coproprietor and partner, the latter
must be held to be jointh' responsible in respect of such negligence,
and is therefore liable in this action. The rule must be made absolute
to enter the verdict against him, as well as the other defendant.

Mule absolute.

798 MORGAN V. VALE OF NEATH RAILWAY CO. [CHAP. VL

MORGAN V. THE VALE OF NEATH RAILWAY COMPANY.
Exchequer Chamber. 1865.
[L. R. 1 Q. D. 149.]

Appeal from the decision of the Court of Queen's Bench, discharging
a rule to set aside a nonsuit and enter a verdict for the plaintiff.

The declaration stated that the plaintiff was lawfully employed doing
repairs to an engine-shed of the defendants, and that the defendants,
by their servants, so negligently, improperly, and unskilfully- managed
an engine of the defendants, which was being turned on a turn-table
close to the shed, that the steam-engine was driven against and struck
a ladder, by which the scaffolding on which the plaintiff was standing
was in part supported, and caused the scaffolding to fall, and the plain-
tiff to be thrown to the ground, whereby, &c.

Plea, not guilt}-.

On the trial, before AVilde, B. , at the Glamorganshire Summer
Assizes, 1863, it appeared that the plaintiff was a carpenter, and in
December, 1862, was in the employment of the railwa}- company at
weekly wages. The duties of the carpenters in the emplo3-raent of the
company are to perform all carpenter's work they may be directed to
do by the inspector of the line for the general purposes of the company.
On the 23rd of December the plaintiff was emploj-ed by the defendants
to do certain carpenter's work on the roof of an engine-shed situate at
the Neath Station of the defendants' railwa}', for which purpose it was
necessary that a scaffold should be erected near a turn-table, on and by
means of which the defendants' engines and carriages were moved and
turned b}- their porters and servants. The scaffold was erected in the
proper position to enable the plaintiff to do the work, and was in all
respects proper and sufficient as regards materials and construction for
the purposes for which it was required. The plaintiff had monnted the
scaffold, and was standing on it doing his work as a carpenter on the
roof of the shed, when some porters employed by the defendants, who
were engaged in shifting a locomotive engine by means of the turn-
table, allowed the engine to project so far be30nd the table that, in
turning the engine, the end of it struck against and displaced a ladder
which was one of the supports of the scaffold. The scaffold gave wa}-,
and the plaintiff was thrown from it to the ground, and received severe
bodily injuries. The occurrence was caused solely by the negligence
and carelessness of the defendants' servants in the management of the
engine and turn-table, and was not in any way attributable to contribu-
tory negligence on the part of the plaintiff or of any other persons.

It was objected on the part of the defendants that the plaintiff and
the persons through whose negligence the injury was caused being alike
the servants of the company, and the injury having occurred when they
were severally engaged in doing the company's work, the defendants

SECT. II.] MORGAN V. VALE OF NEATH RAILWAY CO. 799

were not liable. On behalf of the plaintiff it was contended that he and
the servants who caused the injury were engaged in different operations
and distinct departments of worlv, and that there was no such commu-
nity of employment between him and those servants as to exempt the
defendants from liability for the negligent act which caused the injur\'.

The learned judge nonsuited the plaintiff, giving him leave to move
to enter a verdict for the agreed sum of £250.

A rule having been afterwards obtained accordingly, on the ground
that there was no such common employment as to exempt the defend-
ants from liability, cause was shown in Easter Terra, 1864, and after
time taken to consider, the Court of Queen's Bench discharged the
rule.^

Macna-nuira {G. B. Hughes with him), for the appellant, the
plaintiff.^

II. 8. Giffard^ Q. C. {Lanyoa with him), was not heard for the
defendants.

Erle, C. J. I am of opinion that the judgment should be affirmed.
The plaintiff was employed by the railway- company to do carpenter's
work, and he was so employed on the line of railway, and the wrong-
doers were the porters also in the employment of the compan}*, who,
in shifting a steam engine on a turn-table close to the shed on which
the plaintiff' was working, managed the business so negligently that the
engine struck against the ladder which parth- supported the plaintiff's
scaffolding, and threw the plaintiff violently' to the ground. The plain-
tiff and the porters were engaged in one common employment, and
were doing work for the common object of their masters, viz., fitting
the line for traffic. On a suggestion put b}' my brother Pigott, Mr.
Macnamara was driven to an answer, which (if it did not admit that it
was the same thing) showed that he had difficult}' in establishing any
distinction whether the plaintiff were working close by, or whether he
were employed on the turn-table itself. I think it can make no differ-
ence ; and the rule which exempts the master from liabilit}' to a servant
for injury caused by the negligence of a fellow-servant applies. The
principle on which this rule was established, as applicable to the present
case, is very clearly put by Blackburn, J., in the judgment to which
Mellor, J. agreed in the court below : ^ " There are many cases where
the immediate object on which the one servant is employed is very
dissimilar from that on which the other is employed, and 3-et the risk of
injury from the negligence of the one is so much a natural and neces-

1 See the case reported in the court below, 33 L. J. (Q. B.) 260; 5 B. & S. 570.
— Rep.

2 111 the course of this argument Pigott, B., asked, " Wouhl it have made any dif-
ference if the plaintiff had been engaged at work on the turn-table? " Counsel
answered, " Possibly it might not." In the course of the same argument Pollock,
C. B., said, " It may be observed that the Chief Justice's judgment in the court below
seems to make no distinction between a carpenter regularly employed to do work on
the railway, and one employed only for a casual job." — Ed.

« See 5 B. & S. 580; 33 L. J. (Q. B.) 265. —Ebp.

800 KYAN V. CHICAGO, ETC. RAILWAY CO. [CHAP. VI.

sary consequence of the employment which the other accepts, that it
must be inchided in the risks which are to be considered in his wages.
I tliink that, whenever tlie employment is such as necessarily to bring
the person accepting it into contact with the traftic of the line of a rail-
way', risk of injury from the carelessness of those managing that trafllc
is one of the risks necessarily and naturally incident to such an employ-
ment, and within the rule." The cases on this subject are extremely
numerous, and have been closely examined, both here and in the court
below, and I could not make the matter clearer by going through tliem.
It is sufficient to say that I entirely agree with the judgment of the court
below, that the facts of the case bring it within the rule exempting the
master from liabilit}'.

Pollock, C. B. I only wish to add a single sentence. It appears to
me that we should be letting in a flood of litigation, were we to decide
the present case in favor of the plaintiff. For, if a carpenter's employ-
ment is to be distinguished from that of the porters employed by the
same company, it will be sought to split up the employees in every large
establishment into different departments of service, although the com-
mon object of their employment, however different, is but the further-
ance of the business of the master; yet it might be said, with truth,
that no two had a common immediate object. This shows that we must
not over refine, but look at the common object, and not at the common
immediate object.

WiLLEs, Byles, and Keating, JJ., and Bramvs^ll, Channell, and
PiGOTT, BE., concurred. Judgment affirmed.

RYAN V. THE CHICAGO AND NORTHWESTERN
RAILWAY CO.

Supreme Court of Illinois. 1871.

[60 ///. 171.]

Appeal from the Superior Court of Cook County ; the Hon. Joseph
Gary, Judge, presiding.

Messrs. Fuller & Smith, for the appellant.

Mr. B. C. Cook, for the appellees.

Mr. Justice Walker delivered the opinion of the Court : —

This was an action on the case, brought by appellant, in the
Superior Court of Chicago, against appellees, to recover for injuries
received by being struck by one of the engines of the company. Ap-
pellant was employed b}' the company as a common laborer at their
carpenter shop in Chicago. And on the 22d day of February, 1868,
after the six-o'clock whistle had sounded to release the hands from
labor, appellant started for his home. He, in going there, crossed
appellees' railway tracks, and in doing so was struck by one of their

SECT. TI.] RYAN V. CHICAGO, ETC. RAILWAY CO. 801

engines and severely injured. Appellant testifies that on approaching
the track, he looked along in both directions, and no engine was in
sight, and the engine which struck him came upon him from the oppo-
site side of the tank-house on a curve on the main track ; that no bell
was ringing or whistle sounding, and the engine ran at an unusual rate
of speed.

On the other side, witnesses swore that the bell was ringing, the
engine was moving at a rate of speed not exceeding five miles an hour,
and that the track was straight, and the engine could be seen at least
two hundred feet in the direction from which it came. P2ach party
prepared and asked instructions, which the court refused to give, but,
on his own motion, gave this : —

"If the plaintiff was in the service of defendants, and his route to
and from his work was over the tracks of the defendants' railway, then
the law is established in this State that he took upon himself the risk
of being hurt b^- passing engines on such tracks, and the defendants
are not liable to him for any injury that he received from such an
engine, whether it was run negligently or not, and the verdict should
be for the defendants."

The giving of which is assigned for error.

This instruction took from the jury all question of negligence, and
onl}- left to their consideration the fact whether or not he was in the
employment of the railroad company.

In Chicago & Alton Railroad Co. v. Keefe, 47 111. 110, we said,
"That the duties of an employee of a railwa}- company may be so
entirely distinct from all occupation upon its trains as to leave him at
liberty to pursue the same legal remedies for injuries received while a
passenger, may ver}- probably be true. If, for example, a bookkeeper
in a raihva}" office should be injured, while travelling as a passenger,
through the carelessness of the engineer, the reasons upon which the
rule above referred to are founded, might well be held to have no
application. But the employment of the person injured cannot be con-
sidered distinct, in an}' sense, leading to this result, if of a character
to make him a part of the force employed upon the train. If his du-
ties attach him to the train as a part of its personal equipment, then
his branch of service is not independent, in any such sense, as to
exempt him from the general rule in regard to co-employees, in case
he should be injured through the carelessness of the engineer. . . .
In the case before us, the plaintiff was a part of the working force of a
construction train, and had been for some weeks passing with it to and
fro, and, although his duties were distinct from those of the engineer,
yet they were fellow-servants of the compan}', and both engaged in the
same geiieral duty, io vf'it: the operating a construction train, though
each worked in his own department."

In the case of the Chicago & Northwestern Railroad Co. v. Swett,
45 111. 197, we held that the doctrine that an action would not lie by a
servant against a railroad compan}- for an injury sustained through the

802 RYAN V. CHICAGO, ETC. RAILWAY CO. [CHAP. VL

default of another servant, applies only to cases where the injur}- com-
plained of occurs without the fault of the company, either in the act
which caused the injury or the employment of the person who caused
it. Again, in the case of The Schooner Norway v. Jensen, 52 111. 373,
it was held that a master is responsible to his servant for an injur}'
received from defects in the structure or machiner}' about which his
services are rendered, which the master knew or should have known.
And the Illinois Central Railroad Co. v. Welch, 52 111. 183, announces
the same rule. In this last case it was said that a person engaging
in such a service assumes the ordinary perils of railroad life, and the
special dangers peculiar to the condition of the road, so far as he is
aware of their existence, and his exposure to them would be his
voluntary act.

In the case of Illinois Central Railroad Co. y. Jewell, 46 111. 99, it
was said, where the engine driver was a reckless and wild runner,
which was known to the compan}-, that the company were liable for
injuries resulting therefrom to a fellow-servant. From these decisions
it will be seen that the rule that a servant cannot recover against a
I'ailroad company, for injuries, has its exceptions. And those excep-
tions depend upon the negligence of the master in furnishing insufficient
structures or machinery with which the servant is required to perform
his duties, or in employing incompetent servants with whom the servant
is associated in the discharge of his duties. Or where a servant is
employed in a different department of the general service from that of
those whose negligence produced the injury, as was said in the case
of The Chicago «fe Alton Railroad Co. v. Keefe, supra. And the same
principle is announced in the case of Lalor v. Chicago, Burlington, &
Quincy Railroad Co., 52 111. 401. Thus, it is seen, the rule is not
inflexible and without exception.

No employee of the road could have been farther removed from
those who produced the injury than appellant. He was in no wise
connected with those who had control of the engine. He was engaged
in a different department of the business of the company ; as wholly
disconnected with the business of operating the engines and trains as
was an}" mechanic or laborer in the city. It is true he was employed
and paid by the same company, but otherwise a stranger to the engi-
neers' department. The reason of the rule, when it is applicable, is,
that each servant engaged in the same department of business, for the
safety of all, shall be interested in securing a faithful and prudent dis-
charge of duty by his fellow-servants, or that they shall report to the
master any delinquencies of those engaged with them in the perform-
ance of duty. But the reason does not, nor can it, apply where one
servant is employed in a separate and disconnected branch of the
business from that of another servant. A person employed in the
carpenter shop cannot be required to know of the negligence of those
entrusted with running trains or handling engines on the road. And
hence the reason of the rule fails.

SECT. II.] GANNON V. HOUSATONIC RAILROAD CO. 803

The employment of the engine driver, and appellant as a laborer
in the earpenter shop, is so dissimilar and separate from each other,
that appellant should not be held responsible for the negligence of the
former, in such a case, the company should be held liable for gross
negligence of the servant who causes the injuiy. But the instruction
in this case took that question entirely from the jur^-, and should not
have been given. It entirely ignored the exception to the rule.

There was evidence which was conllicting on the question of gross
negligence, and it was the province of the jury, and not of the court, to
pass upon it and say which position should be regarded.

For this error, the judgment of the court below must be reversed,
and the cause remanded. Judyment reversed.^

EDMUND GANNON v. HOUSATONIC RAILROAD COMPANY.

Supreme Judicial Court of Massachusetts. 1873.

[112 Mass. 234.]

Tort. Trial in the Superior Court before Allen, J., who after a
verdict for the plaintiff allowed the defendant's bill of exceptions as
follows : —

" This is an action brought by the plaintiff to recover damages for
the loss of the services of liis wife, for the loss of her society, and for
monej' paid for medical attendance upon her, in consequence of an
injury which she sustained while a passenger on the defendant's cars,
b}' the running of the cars from the track bj' reason of a switch which
was misplaced b}' the negligence of the employee of the company, who
had it in charge.

"It was in evidence that the plaintiff was at the time of the injury
to his wife an employee and servant of the defendant company, in the
capacity of a laborer on the track of the road, and so actually employed
at the time of the injury to his wife. The defendant requested the
court to rule as follows : ' If tlie wife of the plaintiff was injured in
consequence of the cars running off the track by reason of the switch
being misplaced through the negligence of the employee and servant of
the company in charge of the switch, the plaintiff being at the same
time an employee and servant of the company, and in i|:s actual
employment as a laborer on the track at the time of said injury, he can
recover no damages for the loss of the society and services of his wife,
nor for any damages sustained bj- him growing out of and consequent
upon the injury to his wife.'

1 Arc: ChicaEjo & Northwestern Kailroad Co. ik Moranda, 9.3 111. 302 (1879);
Chicago & Alton Railroad Co. v. O'Brien, 155 111. 630(1895). But see Waller v.
South-Eastern Ry. Co., 2 H. & C 102 (1863). — Ed.

804 GANNON V. HOUSATONIC RAILROAD CO. [CHAP. VI.

"The Court declined to rule as requested, and instructed the jury
that the plaintiff in such a case as this stood as if not an employee of
the road, and might maintain the action."

M. Wilcox, for tlie defendant.

A. J. Waterman, for the plaintiff.

Colt, J. "We are referred to no case where the rule which exempts
the master from liability for injuries received through the negligence of
a fellow-servant has been held to defeat the plaintiffs right to recover
consequential damages for an injury to his wife. In the opinion of the
court the rule is not to be so extended. The implied contract on the
part of the servant by which he assumes the risk of the negligence of
others, has reference to those direct injuries to which he is exposed in
the course of his emplo^'ment. Those injuries which are incident to
the nature of his employment, he is presumed to have contemplated,
and with reference to his exposure to them to have fixed the compen-
sation agreed on. In other respects his i-elations to his emplo3'er
remain unchanged. He may insist on the performance of all other
duties, whether the}' are such as are imposed by him or such as arise
from independent contracts express or implied.

It is said that the general rule which exempts the master from lia-
bilit}' to his servant, has a tendency to insure the safetj' of the public
by increasing his care and fidelity, and that the public polic}' of the
rule is equally applicable here. But if it be conceded that this is the
true foundation of the rule, its bearing is too remote to influence
the result to which we come in this case.

The plaintiffs wife was a passenger, and the defendant corporation
was bound to discharge the duties which as a passenger carrier it had
assumed towards her. The injury she received was occasioned b}- no
fault of the plaintiff, who was emplo^'cd upon the track, for all that
appears at a remote point on the road, and the injuiy was from a mis-
placed switch.

The husband has a right to the services of his wife, and is bound to
sustain her in sickness and in health. Any injuiy inflicted on her
which diminishes the value of this right, or increases the burden of this
duty, is a pecuniary loss to him. It is indemnit}' for this loss which he
here claims. And the fact that he was at the time of the wife's injur}'
in the employment of the corporation cannot be permitted to defeat his
claim. Exceptions overruled.

SECT. IL] packet CO. V. MCCUE. 805

PACKET COMPANY v. McCUE.

Sdpeeme Court of the United States. 1873.

[17 Wall 508.]

Error to the Circuit Court for the Eastern District of Wisconsin.
The case was thus : —

Patrick McCue was a common laboring man, living in Prairie du
Chien, Wisconsin, and employed in the railroad warehouse in that
place. On the evening of the 11th of Jul3-, 1868, the steamer War
Eagle, owned b}- the Northwestern Packet Compan\-, arrived at the
landing in Prairie du Chien for the puipose of taking freight from the
warehouse. Being short of hands, the mate of the boat went to the
warehouse, and there employed McCue and four or five other persons
to assist in carrying freight from the warehouse and putting it on board
the boat. This employment continued about two hours and a half, at
the end of which time McCue and the rest were told to go to " the
office " upon the boat (the packet company liaving no office on shore
for the purpose of making such payments) and receive their pay.

They proceeded there accordingly, were paid, and then started to go
ashore. As McCue was going ashore, the men on board the boat
pulled in the gangway plank while he was on it. He was thus thrown
down against the dock and injured, and a few days afterwards died
from the injury thus received.

Hereupon Mar}' McCue, his widow and administratrix, brought suit
in the court below, under a statute of Wisconsin, to recover damages
for the injuries which he had sustained.

The narr. alleged that McCue had never before been, either gener-
ally or at intervals, a servant of the packet company, and that at the
time when the injuries occurred and the cause of action accrued he was
not so ; but that contrariwise he had been employed bv the company
to work for it on this occasion alone, and •' for a short space of time,
to wit, for the space of one hour ; " that this time had elapsed ; that
the work had been done, and that McCue had been paid for it, and
that after all this, and after the relation of master and servant had
thus ceased, and McCue was attempting to get off the boat, and using
due care, &c. , " the defendant and its agents then and there," regard-
less of their dut}-, recklessl}- and without any reasonable cause, pulled
in and from under his feet, &c., the gangwa}- plank, &c. , by which he
fell and was injured, &c.

The defendant pleaded not guilt}'.

There was no doubt from the evidence that McCue was without
fault, and that the injuries which caused his death were owing to the
reckless carelessness of the servants of the packet company.

On the trial it appeared that INIcCue had before been occasionally
emplo3ed b}' the packet company in the same way in which he had now

806 PACKET CO. V. M« CUE. [CHAP. VL

been ; but there did not seem to be any evidence that he wus in their
general employment ; and this was the first time in the year 18G8 in
which he had been emplo3ed in this sort of work by the company.

The counsel of the packet company insisted, as the hiring was in the
warehouse, as McCue had proceeded thence, as the freight was to be
carried thence, and as the packet company liad no office on shore or
anywhere else than the office upon the boat, where MeCue could be
paid, that his relationship to his employers had not terminated by the
simple fact of liis getting his money at the office on the boat, but, on
the contrary, continued uutil he got back to the warehouse, or at least
and rather until he had got off the boat ; that uutil such latter time he
was the servant of the company, and that tlie injuries done to him
having been done to him b}' his fellow-servants of the compan}' he
could not recover from their common master, the packet compau}'.

The counsel of the companj' therefore requested the court to charge
according to tliis view, and as matter of law upon the conceded facts
that the plaintiff could not recover.

The court declined so to charge, and charged thus : —

" McCue had been occasionally employed by the defendants' boats
in the way in which he was in this instance ; but there does not seem
to be any evidence to show that he was in their general employment,
and in this particular year it would appear that this was the first time
he had been employed in this wa}', so that he was employed for a
special purpose, which being accomplished, the agreement or contract
^ceased.

" The contract was made in the warehouse, the freight was there,
the execution of the contract began there, and as soon as the last por-
tion of the freight was carried on board of the boat, the contract
termiuated, unless, indeed, it continued because he was to be paid off
and had the right to go ashore from the boat, and to be provided with
the proper means of going ashore, so that in one sense it is true, I
suppose, that the contract began on shore and was terminated by the
act of going on shore b}' McCue.

[" At the same time it may also be said that as soon as he did the
last work he was required to do, and was paid off, that he was after
that his own master with respect to the contract made between them ;
that then it was optional with him to do just as he chose.

"Therefore it will be left to the jury to say whether there was the
relation of servant and principal or master, as between the deceased
McCue and the defendant, at the time of the injury. And I am not
now prepared to sa}^ even if it were true that the relation of servant
and master did subsist, that then the action could not be maintained,
and I would like to have you find, gentlemen (inasmuch as it ma}- be a
material point, and of service hereafter), whether, as a matter of fact, there
was or not a termination of the employment between the company and
the deceased prior to or at the time of the injur}'. The counsel for the
defendant insists that this is a question of law under the conceded

SECT. II.] PACKET CO. V. McCUE. 807

facts ; that, inasmuch as soon as INIcCue was paid off he immediately
proceeded to go on shore and was in the act of going on shore, lliat
constituted a part of tlie service. But as the court thinks, for the
reason that as soon as paid off, McCue was his own master, and had
the entire control and disposition of himself, to remain on board or go
asliore, just as he pleased, in one aspect it may be said that the service
was terminated. Tliat question, however, the court leaves to tlie jur3',
and asks them to iind what the fact is, from the evidence, on this
point.

" Then, gentlemen, leaving the questions of fact to the jury, it will
be for the jury to say under the evidence whether the plaintiff' has made
out his case as stated in the declaration. If the service was terminated
and this injury was the result of the negligence of the servants of the
defendant, then the plaintiff may recover."]

The jury having found a verdict of S2,800 for the plaintiff, and judg-
ment having gone accordingly, the packet compan}' brought tlie case
here on exceptions to the refusal to charge as requested, and to those
parts of the charge witliin brackets, as given.

3Tr. J. P. C. Cottrill., for the plaintiff in error (a brief of Jfr. J.
W. Gary being filed on the same side).

Messrs. Mottheir ILde Carpenter and G. W. Lolin, contra.

Mr. Justice Davis delivered the opinion of the court.

It is insisted on the part of the plaintiff in error that a master is nol
responsible to a servant for injuries caused b^' the negligence or mis-
conduct of a fellow-servant engaged in the same general business.
Whether this general proposition be true or not, it is not necessary to
determine in the state of this record. It is conceded, if the employ-
ment of INIcCue by the company terminated before the injury com*
plained of was suffered, that the company is liable, and this the jury
have found to be the fact.

But it is said it was the province of the court, and not the jury, to
determine tlie point of time at which the service was ended ; that as
the facts were undisputed, it was a question of law, and the court
should have told the jurj' the relation of master and servant subsisted
when the accident happened.

We do not think so. One of the theories on which the suit was
prosecuted was that McCue's special employment had ceased when he
was injured. This theory was resisted b}- the defence, and the court,
not taking upon itself to determine as an absolute proposition when
the employment terminated, left it to the jury to find how the fact was.
This ruling, in our opinion, was correct. It was for the jury to say,
from the nature of the employment, the manner of engaging the hands,
the usual mode of transacting such a business, and the other circum-
stances of the case, whether the service had or had not ceased at the
time of the accident. Tlie point was submitted fairly to the jur}-, with
no more comments than the evidence justified. It was argued by the
plaintiff in error that the employment of necessity terminated on the

808 SMITH ";. STEELE. [CHAP. VL

land, because il was there McCue was engaged to do the work, and he
had the right to be i)rovided with the proper means of reaching it from
the boat. On the coutriuy, the defendant in error contended tlie
special service ceased when McCue had finished his work and was paid
off; that after this he was not subject to the control or direction of the
officers of the boat, but at liberty to stay on tlie boat or go off as he
pleased. The jur}' took this latter view of the relation of the parties,
and we cannot say that they did not decide correctlj'. At any rate,
their decision on a question of fact is not subject to review in this
court. The defence at the best was a narrow one, and in our opinion
more technical than just. Judgment affirmed.

SMITH, Executrix of J. G. SMITH, v. STEELE and ototos.
Queen's Bench. 1875.
[Z. R. 10 Q. B. 125.]

At the trial before Lush, J., at the Sussex spring assizes, 1874, the
facts stated in tlie judgment of the court were proved, and the jury
found a verdict for the plaintifl", Avith leave to move to enter a verdict
for the defendants, or a nonsuit.^

Blackburn, J. This was an action under Lord Campbell's Act to
recover damages in respect of the death of the plaintiff's testator, who
was her husband.

At the trial before mv Brother Lush the following facts were proved:
The defendants were the owuers of a vessel lying in dock, about to
proceed on a voyage in which the employment of a pilot was compulsory.
The testator was a pilot who was engaged for that voyage. He (in
compliance with what it was proved was always the practice of pilots)
went on board the vessel in dock to give directions to the crew when
getting the vessel out of dock. Whilst doing so a boat, which had been
negligently slung, fell on him and killed him. The defendants did not
personally interfere in the matter. From the way the case comes before
us on a point reserved, we must take it as a fact that the accident was
occasioned b}' the negligence of the servants of the defendants in sling-
ing the boat, without contributory negligence on the part of the deceased.
Leave was reserved to enter the verdict for the defendants or a nonsuit
on the ground that the defendants were not responsible for the negli-
gence of their servants under the circumstances proved in evidence. A
rule nisi was obtained accordingly, against which cause was shown in
this terra before my Lord Chief Justice, my Brothers Mellor, Lush,
and myself, when the case was very ably argued by Mr. Will'is for the
plaintiff, and by Mr. Thesiger and Mr. Wood Hill in support of the
rule, and the court took time to consider its judgment.

* The reporter's statemeut of the pleadings has been omitted. — E».

SECT. II.] SMITH V. STEELE. 809

The law is, to a certain extent, determined by the case of Indermaur
V. Dames. ^ There is an obligation on the part of the occupier of prop-
erty, whether fixed or movable, to those who, at his invitation, express
or implied, come on that property, to take, by himself and servants,
reasonable care that the person so coming shall not be exposed to unu-
sual danger. And that obligation extends to the workmen sent by a
tradesman to repair part of the machinery-. Mr. Justice Willes, in
delivering judgment in that case, after referring to the undisputed law
that there was such an obligation on the part of a shopkeeper to his
customer, and that there was no such obligation to a servant, proceeds
to give the reason of the judgment in these terms : " The class to which
the customer belongs includes persons who go, not as mere volunteers,
or licensees, or guests, or servants, or persons whose employment is
such that danger may be considered as bargained for, but who go upon
business which concerns the occupier, and upon his invitation express
or implied." ^ . . .

In the present case the accident happened before the actual com-
mencement of the voyage ; but it is clear that the deceased was on board
onl}- because he was going on that voyage as a pilot, and under the
same terms as to risk as if the voyage had begun. "We think, therefore,
that the question in the present case is reduced to this, whether there is
between the owners of a ship and tlie pilot whom they are compelled to
employ an implied contract that the pilot shall take upon himself the
risk of injury from the negligence of the shipowners' servants. Inder-
maur V. Dames decides that there is no such implied contract between
the owner of machinery and those who are sent by their masters to
repair it. And we think that there is no such implied contract in the
case of a pilot. The law as to pilots is now regulated b}- the Merchant
Shipping Acts. The pilot is, by 17 & 18 Vict. c. 104, s. 365, subject
to a penalt}' if he refuses to take charge of the ship. Tlie master is, by
s. 353, bound under a penalty to employ the pilot. The rate of remuner-
ation is, by s. 358, neither to be more nor less than the fixed rate,
though both parties should agree. And by s, 388 the owner is not to
be liable for the pilot as his servant. By a subsequent enactment, 35
& 36 Vict. c. 73, s. 9, power is given b}- by-laws to modify s. 358 so
far as to allow an}' pilot or class of pilots any rate less than the rate for
the time being demandable by law ; but no power is given to enable a
pilot to demand more. He cannot, therefore, make any special bargain
to receive larger pay in consideration of his taking this risk upon him.
An ordinary servant has, as Lord Cairns points out (at least theoreti-
cally), the power of choosing whether he will enter into the employment
of a master who does not agree to act personally in the management of
his business, or as an alternative to be responsible for the negligence of
those he employs. The pilot has no such choice ; he must conduct the

1 L. R, 1 C. P. 274 ; affirmed in error, L. R. 2 C. P. 311. — Rep.

2 Here were cited Morgan v. Vale of Neath Ry. Co., ante, p. 798, and Wilson v.
Merr,\ , jiost, p. 842. — Eu.

810 LOVELL V. HOWELL. [CHAP. VL

ship on the terms fixed by the statutes which regulate pilotage ; and we
can find nothing in those statutes to justify the conclusion that the pilot
is to take upon himself the risk,'

We therefore think that the rule should be discharged.

Rule discharged}

LOVELL V. HOWELL.

Common Pleas Division. 1876.

[1 C. p. D. 161.]

The declaration stated that the defendant by his servants so negli-
gently hoisted up certain sacks from a wagon into the defendant's
warehouse that one of the sacks fell upon the plaintiff, whereby he was
thrown down and hurt.

Second plea. That the injury was committed by servants of the
defendant, and solely by their negligence, and not by the negligence of
the defendant personally, and without the authority, knowledge, sanc-
tion, or consent of the defendant ; that such servants were reasonably
fit and competent to be employed ; that the plaintiff was also the
servant of the defendant and was then acting with the first-mentioned
servants in one common employment ; and that the defendant was not
personally- guilt}- of any negligence. Issue thereon.

The cause was tried before Lindley, J., at the sittings in London
after Trinit}- Term, 1875. The facts were as follows: The plaintiff
is a licensed waterman and lighterman. The defendant is a corn-
merchant, miller, warehouseman, and wharfinger, carrying on business
at Sufferance Wharf and Providence Wharf, College Street, Belvedere
Road, Lambeth. He is also the owner of several barges. The plaintiff
had been for about three months in the employ' of the defendant when
the accident complained of took place ; his duty being to attend to the
mooring and unmooring of the barges when the}- were brought to the
premises to be laden or unladen, and which usualh' occupied him for
about an hour and a half before and after each high tide, and for which
he received wages of 24s. per week.

About fi o'clock in the evening of the 21st of October, 1874, when it
was quite dark, the plaintiff was on the barges preparing for his night's
duty, which would not commence for some hours, when he was told
that the defendant's manager, Barker, wanted him at the office, which
was in the street at the other side of the warehouse, and to which he
was in the habit of going to receive orders. There were two w-ays of
going to the office from the river side, viz., b}' passing bj- means of a
wherr}- to stairs at the river end of College Street, or hy stepping from

1 See Bowcher v. Noidstrom, 1 Tannt. 568 (1809 ); General Steam Navigation Co. ».
British and Colonial Steam Navigation Co., L. R. 4 Ex. 238 (Ex. Ch. 1869). — Ed.

6KCT. II.] LOVELL V. HOWELL. 811

the barges into a door- way, and thence through the warehouse to the
street ; the latter being the way which the plaintiff usually adopted.
In passing from the warehouse into the street on the occasion in ques-
tion, the plaintiff was knocked down by a sack of peas which were
being hoisted from a wagon Ijy means of a crane to one of the upper
floors of the warehouse, the rope by which the sack was being hauled
up having through the carelessness of the defendant's men wiio were per-
forming the work been left too slack.

Upon this state of facts it was insisted on the part of the defendant,
that, inasmuch as the injury* complained of was the result of careless-
ness on the part of persons engaged with the plaintiff in one common
employment, the master was not responsible.

The learned judge, yielding to the objection, directed a verdict to be
entered for the defendant, with leave to the plaintiff to move to enter a
verdict for him for £150, agreed damages, if the court should be of
opinion that the objection was untenable.

J. Broicii, Q. C, and IF. G. Harrison., showed cause against a
motion for judgment pursuant to the leave reserved.

Harris, in support of the rule.

Brett, J. We must take the facts which were proved in this case
to be these : The plaintiff was in the service of the defendant, who
carries on the conjoined business of a corn-merchant, miller, ware-
houseman, and wharfinger, upon premises abutting on one side on the
river Thames, but which premises did not constitute a wharf in the
ordinary sense. The plaintiff's duty was for certain wages to attend
for about an hour and a half before and an hour an a half after high-
water at each tide, for the purpose of mooring and unmooring the
barges wliich came to the warehouse to be loaded or unloaded. I can-
not gather from tlie evidence that he had anytliing to do with assisting
in the general business of the warehouse, or even with the loading or
unloading of the barges. But it seems to me that it was proved that
the going from the barges to the office for orders was an habitual
part of his service, and that the only way to get there (unless by water)
was to go nito and through the warehouse and thence to the public
street through a door over which was a crane by means of which sacks
of flour and grain were loaded and unloaded into and from wagons.
It does not appear whether or not he was bound by the terms of his
original hiring to go to the office for orders ; it is enough to say that it
had become his usual course to go there by stepping from the barges
and passing through the warehouse. That being so, and an accident
having happened to him by the negligence of other servants in his
master's employ, whilst he was so passing througli the warehouse to the
office, the question is whether lie can recover damages for it against his
master. Now, I decline to say, because I feel a difficulty in under-
standing or defining it, what is the precise principle on which the im-
munity of the master in these cases rests. But I am bound bylaw and
by the authority of decided cases to say that such immunity does exist.

812 LOVELL V. HOWELL. [CHAP. VI.

If, under circumstances substantially similar to those of the present case,
the courts have held that the plaintiff cannot recover, it is impossible
for me to break from those decisions. Inasmuch, therefore, as I am
unable to distinguish from this the cases of Morgan v. Vale of Neath
Ey. Co., L. R. 1 Q. B. 149, and Tunney r. Midland Ry. Co., L. R.
1 C. P. 291, I feel obliged, however much I regret it, to decide
against the plaintiff upon the present occasion.

Archibald, J. I must confess I do not feel so much difficulty as my
Brother Brett does in deducing from the authorities the principle upon
which the immunity of the master from the consequences of the negli-
gent acts of Ills servants in these cases rests. I tliink it may be ex-
pressed in this way: When a man enters into the service of a master,
he tacitly agrees to take upon himself to bear all ordinary risks which
are incident to his employment, and, amongst others, the possibility of
injury- happening to him from the negligent acts of his fellow-servants
or fellow-workmen. The question is, whether the injury to the plaintiff
in this case did not in some sense arise from one of those ordinary
risks of the service he was engaged in which must or ought to have
been in his contemplation when he entered into it. It appears upon
the evidence, that, though it was no part of the plaintiff's duty to assist
in the general work of the warehouse, as, for example, in the raising or
lowering sacks to or from the upper floors, but that his duty was con-
fined to the care and management of the craft coming to the premises,
yet it seems to have been also a part of his dut}- to go to the office for
orders, and that in the course of this duty he would have to pass
through the warehouse and out into the street by the door at which the
process of lifting the sacks from the wagon was carried on, where he
w^ould necessarily have to encounter the risk of injury from negligence
of others ni the same emplo}', — one of the contemplated risks of the
service. This seems to me to bring the present case within the prin-
ciple laid down in Priestley v. Fowler, 3 M. & W. 1, and the other cases
to which our attention has been drawn, and I think we shall do much
mischief by over-refining upon it. I entirely agree in the remarks made
by Pollock, C. B., in Morgan v. Vale of Neath Ry. Co.^ . . I think the
evidence here show\s that this plaintiff brought himself as clearly within
one of the contemplated risks of his service as the plaintiff did in that
case. For these reasons, I think that the verdict for the defendant
ought to stand.

LiNDLEY, J. I am of the same opinion. Looking at the nature of
the pl:iintiff's employment, as stated b}' himself, it seems that that
included the going through the warehouse and out b}' the door over
which the sacks were being hoisted. It is true there was another wa}' of
going from the barges to the office, viz., b}' water ; but that was not the
way the plaintifl^ was in the habit of going. Having regard to the rule
iaid down by numerous authorities, I think the risk in question was one

1 Here was quoted a passage from Morgan v. Vale of Neath Ry. Co., ante, p. 798.
— Ed.

BECT. II.] SWAINSON V. NORTH-EASTERN RAILWAY CO. 813

to which the plaintiff tacitly agreed to expose himself when he entered
the defendant's service. The only doubt I entertained at the trial was
whether the plaintiff was at the time of the accident in the emplo}' of
the defendant at all. Mis duty did not call him to the premises at that
time. But he was in the habit of going occasionally to see what he
would have to do in the course of the night, and to prepare for it.
And, being there, he was called by the manager to the office. The
accident therefore happened whilst he was employed about his master's
business. Hule discharged.

SWAINSON V. THE NORTH-EASTERN RAILWAY COMPANY.

Exchequer Division. 1877.

Court of Appeal. 1878.

[3 Ex. D. 341.]

The plaintiff sued to recover damages for the death of her husband,
who was killed by the negligence of the driver of one of the defendants'
engines.

Waddt/, Q. C, for the plaintiff.

C. Hussell, Q. C, and C. Crompton, for the defendants.

Cvr. ad>\ wit.

The judgment of tlie court (Pollock and Huddleston, BB.) was
delivered by

Pollock, B.^ Adjoining Wellington Street, Leeds, are two railwa}'
stations, the one belonging to the Great Northern Railway Compau}',
and the other to the North-Eastern Railway Company. These abut
upon each other, and are approached from the south b}' lines of rails,
two of which belong to each of these companies, the entrance to or
exit from the station being governed by signals and points, which are
worked by signalmen whose duty is common to both stations.

The deceased man, Swainson, was one of these signalmen, and he had
acted for four years in the same position. He was engaged and paid
b}' the Great Northern Railwa}- Company', and wore their uniform, and
was not made aware at the time of his appointment that he was a joint
servant, but in fact his dut}' was to attend to the North-Eastern trains
as well as the Great Northern as to points and signals, when any en-
gines or trucks had to be transferred from the rails of one company to
those of the other ; as between the two companies, Swainson was one
of what was called the "-joint station staff," all of whom were engaged
and paid by the Great Northern Railway Company ; the cost of their
salaries was treated as a joint charge, and borne equally b^' the two
companies, and when Swainson received his wages at the end of each
week, he signed a pay sheet, which was headed, "Great Northern
Railway Traffic Department Pay Bill," "Joint Station Staff."

1 After stating the nature of the action. — Ed.

814 SWAINSON V. NORTH-EASTERN RAILWAY CO. [CHAP. VI.

On the 7tb of May, 1875, Swainson, in the discharge of his dut}-,
was standing on the six-foot space between the Great Northern arrival
and the North-Eastern departure lines. A North-Eastern engine came
towards the station on the Great Northern arrival rails with some
Great Northern coal trucks, and Swainson signalled to the driver to
go on to the North-Eastern departure line. The driver obeyed, and
went on to that line until he passed some points, when he reversed his
engine and backed out again, having a van before the engine, which
obscured his view of the line. Swainson was then looking in the other
direction, watching a train coming from the south, and failing to ob-
serve the engine and van coming out, he was struck b}- the step of the
van, knocked down, and killed.

Evidence was given on the part of the plaintiff that the engine-driver
had not turned on his whistle when he backed out, and also that it was
unsafe to back out with the van before the engine.

At the close of the case my Brother Quain left two questions to the
jurj- : 1st, was there negligence on the part of the driver of the defend-
ants' engine? and, 2d, was there contributory negligence on the part
of the deceased man, Swainson?

The jury answered the first of these questions in the affirmative, and
the second in the negative. We see no grounds for disturbing this
verdict as being against the weight of evidence upon either question.
The counsel for the defendants raised, however, a further point, viz.,
that the driver of the engine and Swainson were engaged in a common
employment, and that the risk which resulted in his death was inci-
dental to that employment, the consequences of which he had under-
taken. The learned judge ruled against the defendants upon this
point, but reserved leave to move, the court having power to draw
inferences of fact.

The case was fully and ably argued before us, and upon the facts
and finding of the jury it is clear that an action would well lie against
the driver of the engine, by whose negligent act the death of Swainson
was occasioned. AVhether the relation of Swainson to the defendants
was such that this action can be maintained against the defendants is
a question the solution of which is more difficult, and requires a careful
consideration both of the facts proved and of the law properly appli-
cable to them.

It will be well, in the first place, to see what is the principle affecting
this case, which can be gathered from authority. Up to a certain point
this is clear : wherever the person injured and he by whose negligent
act the injury is occasioned are engaged in a common employment in
the service of the same master, no action will lie against the master if
he be innocent of any personal negligence. The negligence of a fellow-
servant is taken to be one of the risks which a servant, as between him-
self and his master, undertakes when he enters into the service.^ . . .

1 Citing Priestley v. Fowler, ante, p. 773 ; Hutchinson v. The York, Newcastle, &
Berwick R.v. Co., 5 Ex. 343 ; Wiggett v. Fox, 1 1 Ex. 832 ; Wilson v. Merry, pest,

SECT. II.] SWAINSON V. NORTH-EASTERN RAILWAY CO. 815

Dicta are to be found, however, in some of the cases, which tend to
suggest that the principle ought to be applied to cases in which the
element of common service may be wanting. There is great difficulty
in so holding, because wlien it is said that the servant undertakes the
risk of the negligent acts of his fellow-servant, the question arises,
" Undertakes to whom ? " and the proposition must, we think, be lim-
ited by confining the undertaking to the master of the servant who is
supposed to give it, and that it cannot reasonably be extended to
strangers, or those who, though having some interest in a joint opera-
tion, are not in some sort the master of the person injured. It is not
necessary, in the view which we take of this case, to pursue this
further.^ . , .

The deceased man, Swainson, though engaged by the Great North-
ern Company and wearing their uniform, was one of a joint staff, and
for four years had received his weekly wages as such ; he was there-
fore practically in the service of two companies, who quoad his service
and employment were partners. But further than this, as was said by
Lord Colonsay in Wilson v. Merry, L. R. 1 H. L. Sc. 345, " we must
look to the functions the party discharges, and his position in the or-
ganization of the force employed, and of which he forms a constituent
part." Referring, then, to the duties of Swainson, and the ver}' acts
on which he was engaged at the time of his death, the evidence shows
that the}- were not performed as servant of, or for the benefit of, one
company onl}', but were essentially necessar}' for the common busi-
ness of both, namel}', the interchange of the traffic between the two
stations.

The case, therefore, falls within, and is governed b}', the principle
that where there is common employment in common service, the master
is not liable, and our decision must be for the defendants, for whom
judgment must be entered. Judgment for the defendants.

The plaintiff appealed.

Benjamin, Q. C, and JViUis, Q. C. {T. L. Wilkinson with them), for
the plaintiff.

C. Russell, Q. C, and C. Crompton, for the defendants.

Willis, Q. C, replied. ■ Cur. adv. vult.

Bramwell, L. J. I think that the reasoning of the judgment in the
Exchequer Division shows that this appeal must be allowed ; and I am
inclined to surmise that the facts were misconceived. Tiie principle
governing the liability of a master ma}' be stated in the following man-
ner : he is liable for an injury done to a stranger by his servant acting
within the scope of the latter's authority, because the stranger has had
no hand in the choice of the servant. This seems a sound rule of law ;

p. 842; Morgan v. Vale of Neath Ry. Co., ante, p. 798 ; Lovell v. Howell, ante, p. 810.
— Ed.

1 Here were stated Voss v. Lancashire & Yorkshire Ry. Co., 2 H. & N. 728 ; and
"Warbnrton r. Great We.stern Ry. Co., L. R. 2 Ex. 30. — Ed.

81 G SWAINSON V. NOKTU-E ASTERN RAILWAY CO [CHAP. VL

but where a person is injured by the negligence of a fellow-servant, a
different rule prevails. This latter rule is not limited to the case of
servants ; it extends to guests, who cannot sue the master of the house
for an injury done by his servants. We must consider what obligations
a servant takes upon himself; it is sometimes said that he contracts to
take upon himself the risks of his service. But the proposition may
also be stated as follows, namely, that he has not stipulated for a
right of action against his master if he sustains damage from the negli-
gence of a fellow-servant. The two forms of the proposition seem to
me substantially the same; in either case it is necessary to prove that
a relation has been established between the person who complains and
the master of the person who does the injury ; and this, I think, was
the view of the law adopted in the Exchequer Division. But I differ
from them in the view taken of the facts. The defendants were not m
any manner the masters of Swainson ; it is true that he was one of the
joint station staff, and he was bound to discharge some duties for their
benefit, but they could give him orders only by permission of the Great
Northern Railway Company. Again, could the defendants have sus-
tained an action against Swainson for incompetence m the discharge of
his duties whereby they suffered damage? It is plain they could not.
It ma}' seem strange that if there had been a partnership between the
defendants and the Great Northern Railway Company as to the busi-
ness carried on at the joint station, neither companj- would have been
liable for the injury done to their servants ; and it may be argued that
the only difference between a partnership and the mode of conducting
the business in the present case is one of form. But the answer is
that in the case of a partnership Swainson would have been entitled to
a remedy against the defendants in the event of the non-payment of
his wages ; and though in point of fact this ma}- not have been a great
advantage, yet the principle remains the same. It may be said that in
working the signals for the defendants' engine he was a volunteer
working for both companies, and was in a common employment with
the driver ; but I do not think that that contention would be well-
founded. It would resemble the case where a carman receiving cotton
was injured by the negligence of the servants of the brokers employed
in delivering it, and it was held that the brokers were liable,^ for the
carman and the servants of the brokers were not under the same con-
trol, and were not members of a common establishment ; the work was
joint, but the employment was different. Moreover, in the present
case, Swainson at the moment when the accident happened was no
longer engaged in a common emploj'ment with the driver of the defend-
ants' engine.

I am of opinion that the judgment must be reversed.

Brett, L. J. I am of the same opinion. We are not entitled to
consider the origin of the rule which exempts a master from liability

» See Abraham v. Reynolds, 5 H. & N. 143. — Rep.

SECT. II.] SWAINSON V. NORTH-EASTERN RAILWAY CO. 817

when his servant is injured by the negligence of a fellow-servant ; but
it has been said that the exemption depends upon an implied contract
entered into between the master and servant. I think, however, that
the plaintiff in the present case is entitled to recover, because at the
time of the accident the deceased was not in a common service, nor
engaged in a common emploj'ment with the driver of the engine, nor
engaged in a joint operation. I think that the authorities bear out the
proposition laid down in the Exchequer Division, that in order to give
rise to the exemption there must be a common employment and a com-
mon master. It is not necessary that there should be a common service
for a definite time, or at fixed wages ; for the exemption exists in the
case of volunteers and of other persons, where plainly there has been no
contract for payment. A volunteer puts himself under the control of
another person, and in respect of that other person he is for the time
being in the position of a servant. For the defendants it was not denied
that this doctrine is well established ; but it was contended that the
driver of the engine and the deceased were collaborators. To a cer-
tain extent I should agree with the argument ; but the question is, did
the deceased adopt such terms of service as placed him under the
orders of the defendants? If he did, I think that would be sufficient
to exempt them from liability. That Swainson became their servant
pursuant to contract could not be maintained : the onl}' circumstance
giving color to such an argument was his signature to certain pa}--
sheets ; but that is clearly insufficient to constitute him the defendants*
servant. It was contended that as regards the use of the station the
two railway companies were practicall}' partners. I cannot come to
the conclusion that the}" were : therefore no contract existed between
Swainson and the North-Eastern Railwa}' Company, and he was ser-
vant to the Great Northern Compan}' alone. Then did he adopt such
terms of service as placed him under the orders of the defendants ? If
the question had been properly raised, it might have become necessary
to consider whether in signalling the defendants' engine to move from
the Great Northern rails he did adopt the terms of such a service ; but,
at all events, he ceased to be under the orders of the defendants when
he had finished with the operation of signalling, and I doubt whether
he was under their orders even whilst he was engaged in that operation.
What was the state of affairs when the accident happened? The train
had been changed from the Great Northern line on to the North-Eastern
line. Swainson then had nothing further to do with the North-Eastern
line : he was acting solely on behalf of the Great Northern Railwa}'
Company, and was not assuming to act upon behalf of the North-
Eastern Railway Company. Upon the other hand, the driver of the
engine was soleh' under the control of the defendants. It seems to
me that the two men were strangers to one another, and not fellow-
servants.

Cotton, L. J. I am of opinion that the judgment of the Exchequer
Division must be reversed. The driver of the engine was the servant

818 SWAINSON V. NORTH-EASTERN RAILWAY CO. [CIIAP. VI.

of the North-Eastern Railway Compan}-, and the act of a servant is the
act of his employer, therefore the defendants are 2)ri)/ia facie liable ;
but it is a rule that where one member of an establishment is injured
by the negligence of another member of it, the master is not answer-
able. It is unnecessary to consider how the rule arises ; but it is clear
that if a person takes upon himself to act as a member of an establish-
ment, he cannot maintain an action against the head of it for an injury
occasioned by the negligence of an}' person belonging to it. A volun-
teer is in the same position as a servant: Degg v. Midland Ry. Co.,
1 H. & N. 773. It must be shown that in some sense the deceased was
the servant of the defendants ; but he and the driver of the engine were
not acting together at the moment of the accident ; they were doing
nothing whatever in common. For the reasons assigned by Brett, L. J.,
which I need not go through, I think that the shunting was over, and
that the driver of the engine had again become solely the servant of
the defendants ; he had passed the bit of line which led from the Great
Northern Company's rails to those of the defendants, and had nothing
more to do with the former compan}-. Then the circumstance of
Swainson's signing the pay-sheet did not constitute him the servant of
the defendants. It is true that he was a member of the "joint station
staff," but the Great Northern Railway' Company had no power to
pledge the defendants' credit to Swainson, who was under the orders
of that company alone ; during the shunting operations he might at-
tend to any suggestions which might be made to him on behalf of the
defendants, but that did not make him a servant of the defendants.
It may be said that the defendants paid him a portion of his wages,
and that this created the relation of master and servant between them ;
but, in truth, the Great Northern Company- paid the whole of his
wages, and one-half of them was repaid by the defendants. And upon
the facts, I come to the conclusion that all those employed by the
Great Northern Railway Company were paid by them alone.

Judgment reversed^

1 And see "Wood v. Cobb, ante, p. 190; Murray v. Carrie, ante, p. 206 ; Johnson v.
City of Boston, 118 Mass. 114 (1875) ; Rourke v. White Moss Colliery Co., ante, p. 229;
Johnson r. Lindsay, [1891] A. C. 371 ; Brow v. Boston & Albany Railroad Co., 157
Mass. 399 (1892); Morgan y. Smith, 159 Mass. 570(1893); Reagan u. Casey, 160 Mass,
374 (1894).

As to volunteers, see Degg v. Midland Railway Co., I H. & N. 773 (1857) ; Potter
V. Faulkner, 1 B. & S. 800 (Ex. Ch. 1861) ; Holmes v. North-Eastern Railway Co.,
L. R. 4 Ex. 254 (1869), s. c. L. R. 6 Ex. 123 (Ex. Ch. 1871) ; Flower v. Pennsylvania
Railroad Co., 69 Pa. 211 (1871); Wright v. London & North- Western Railway Co.,
1 Q. B. D. 252 (C. A. 1876) ; Street Railway Co. v. Bolton, 43 Ohio St 224 (1885).—
Ed.

SECT. II.] HOUSTON, ETC. KAILROAD CO. V. MILLER. 819

HOUSTON AND GREAT NORTHERN RAILROAD CO. v.

MILLER.

Supreme Court of Texas. 1879.

[51 Tex. 270.J

Error from Harris. Tried before the Hon. James Masterson.

Baker & Botts., for plaintiff in error.

John T. Jlarcourt, for defendant in error.

Bonner, J. This suit involves the question of the liabilit}' of the mas-
ter at the suit of an employee, who was a minor, for damages sustained
by reason of the alleged negligence of a fellow-servant ; the liabilit}- of
the master to the father of the minor, who was employed without the
consent of the father, having been considered by this court in a branch
of this same case. (Railroad Co. ''. Miller, 49 Tex. 322.)

Since the trial of the cause below, it has become the settled law of
this court, in accordance with the well-established line of decisions in
Great Britain and in this country, that the master is not liable for inju-
ries sustained by his servant through the negligence or default of a fel-
low-servant. Price V. Navigation Co., 46 Tex. 535 ; Robinson v. Railway
Co., 46 Tex. 540.

The plaintiff was the employee of the defendant company, and his
injuries are alleged to have been caused by the negligence of the en-
gineer, who was a fellow-servant. Tested by the rule announced in the
above cases, so much of the first subdivision of the charge of the court
as authorized the jury to find for the plaintiff b}- reason of the alleged
negligence of the engineer, was error, unless the fact that the plaintiff
was a minor made his case an exception to this general rule.

The contract of a minor, made without the consent of his father, for
necessaries, or for emplo3'mcnt in a legitimate business by means of
■which necessaries could be obtained, is not void, but in inanj- cases
commendable. If fair and made in good faith, in the usual course of
business, it would be valid until avoided by the minor himself, or b}'
act of the parent in the exercise of his superior right to demand his ser-
vices. To require that in such cases parties employing minors should
be held thereby to be insurers against the risks usualh- incident to such
emploj-raent would virtualh' result, in many instances, in an undue re-
straint upon this important class of our citizens in obtaining the means
of a legitimate livelihood, and would tend to promote idleness and con-
sequent demoralization. We do not believe that, upon sound principles
of public policy or authorit}-, the mere fact that an employee is under the
age of twenty- one 3'ears should shield him from the usual responsibility
incident to an honest employment voluntarily assumed by himself This
rule, however, should not be enforced against a cliild of tender years,
who evidentl}' would not have the requisite discretion and experience to
be a suitable emplo^^ee in a dangerous business. Railway Co. v. Elliott,

820 BRODEUR V. THE VALLEY FALLS CO. [CIIAP. VI.

1 Cold. (Tenn.) Gl 9 ; Gartland v. Railway Co., 67 111. 498 ; King v. Rail-
road Corp., 9 Cush. 112 ; Railway Co. r. Havne}-, 28 Ind. 28 : Railroad
Co. V. Gladmon, 15 Wall. 401 ; Shear. & Red. on Neg. sees. 50, 97.

"We are of opinion, then, that the error assigned upon this part of the
first subdivision of the charge of the court was well taken. ^ . . .

Reversed and remanded.*

BRODEUR V. THE VALLEY FALLS COMPANY.

Supreme Court of Rhode Island. 1889.

[16 R. I. 448.J

Trespass on the case. On demurrer to the declaration.

This action was brought to recover damages for the death of the
plaintiff's husband, caused by the alleged negligence of the defendant.
The deceased was killed by a barrel which was thrown out of a door by
one of the defendant's employees.

The defendant is a corporation engaged in the manufacture of cotton
goods in the town of Lincoln, State of Rhode Island, where it has its
manufactor}' and a large number of employees. It has, under the
officers of the corporation, a general superintendent, who has imme-
diate control and direction of all the employees. It has also overseers
of the different rooms or departments, such as the slashing room, weave
room, spinning room, machine shop, blacksmith shop, boiler room, &c.,
all under the direction and control of the general superintendent, who
takes his direction from the officers of the corporation. The deceased
was employed as second hand, that is, second foreman, under the regu-
lar foreman of the machine shop, in the machine shop department, and
took his orders from his immediate foreman or the general superintend-
ent. His duties were, in common with others emploj^ed in the machine
shop department, to assist in keeping defendant's machinery in the sev-
eral rooms or departments in proper repair or condition, and, in case of
any breakage of machinery, to oversee and assist in its repair, under
the direction of his immediate foreman or the general superintendent.
In the performance of these duties he was brought at different times
into all the different rooms or departments of defendant's mills. On
the second day of April, 1884, the deceased was crossing an open
court or j'ard, from the machine shop to the cast-iron room, so called,
he being then and there engaged about his work in the machine shop at
defendant's mill, and while passing across said yaxd was struck upon
his head by an empty barrel which was thrown b\^ the overseer of the

1 The remainder of the opinion pointed out two other errors. — Ed.

^ See King v. Bo.ston & Worcester Railroad Corporation, 9 Cush. 112 (1851) ; Fisk
V. Central Pacific Railroad Co., 72 Cal. 38 (1887).

Compare H. & G. N. Railroad Co. v. Miller, 49 Tex. 322 (1878) ; Railroad Co. v.
Fort, 17 Wan. 553 (1873). — Ed.

SECT. II.] BRODEUR V. THE VALLEY FALLS CO. 821

slashing and dressing room from the fourth stor\' of the building in
which the machine shop is situated, and thereb}' fatally injured. Said
deceased was not subject to the orders of the overseer of said slashing
room, but it was his dut}', in case said overseer should report to him that
any of the machinery' in his department was out of repair or broken, to
oversee the repair of the same, subject to the orders of his immediate
foreman and general superintendent aforesaid.

On the said second da}' of April, 1884, the deceased was not em-
ployed or at work in said slashing room or department, but was
employed and at work in the machine shop, which is situated on the
ground floor and feet under the slashing room aforesaid.

The said overseer of said slashing room was not, on said day, at work
in the machine shop or with the deceased. The barrel was thrown with-
out proper precautions.

Ftbniary 9, 1889. Stiness, J. The question raised by this demurrer
is, whether the deceased and the foreman of the slashing room were fel-
low-servants, within the meaning of the rule which exempts the master
from liabilit}' to his servant for an injury received through the negli-
gence of a fellow-servant in the course of their common service. The
plaintiff contends that they were not, because they were not employed
in the same department. The cases cited b}- the plaintiff, excepting
those in Illinois, are plainly distinguishable from the case at bar.
Thus in Chicago & Milwaukee Railroad i\ Ross, 1 12 U. S. 377, it was held
that an engineer was not a fellow-servant with a conductor in charge, and
to whom the company had given the right to command the movements
of the train and to control the persons employed on it, upon the ground
that the conductor should be treated, being so in fact, as the personal
representative of the corporation, for whose negligence it was respon-
sible to subordinate servants. In Moon's Adm'r v. R. & A. R. R., 78
Va. 7-45, the company was building a new road, and the construction,
at the place of injury, was in charge of a section master, who was held
not to be a fellow-servant with a train hand, the company having dele-
gated to an agent a duty incumbent upon it. It was also held that a
conductor, having control and direction, was not a fellow-servant with
the train hand, but his superior. In Ford v. Fitchburg Railroad Co.,
110 Mass. 240, the company was held liable for not providing a proper
engine, and in Davis r. Railroad Co., 55 Vt. 84, for a defective road-bed.
These cases stand upon verv different considerations from the one
before us. The dut}' of the master to furnish suitable machiner}' and
appliances, and to keep the same in repair, is unquestioned. It is also
well settled that, when a master delegates to a servant duties which be-
long to himself, the servant will occupy the place of the master, not that
of fellow-servant with other employees, and the master will remain as
responsible for the negligence of this servant as if he were personally-
guilty of it himself Mulvey v. R. I. Locomotive Works, 14 R. I. 204.
In the present case the deceased was not under the overseer of the
slashing room, nor did the latter stand in the place of the principal

822 BRODEUR V. THE VALLEY FALLS CO. [CIIAP, VL

with reference to the deceased. Bat the decisive question in this case
is, whetlier the circumstances set forth amount to fellow-service, as the
term is used in hiw. The cases in IlUnois are directly in favor of the
plaintiff's contention. The}' proceed upon the distinct ground tliat, to
constitute workmen under the same master fellow-servants, the}' must
directh' co-operate with each other, or, bv their usual duties, be brought
into such habitual association as to have the power of influencing each
other to the exercise of constant caution, by example, advice, encour-
agement, and b}' reporting delinquencies. In the case of Chicago &
N. W. 11. R. V. Moranda, 93 111. 302, the court reviews and alllnns its
position at length. It remarks, however: "Although the distinction
taken by this court between these two classes of co-servants," i. e., those
employed in the same department and those emploj'ed in separate and
disconnected branches of the business, " has not the sanction of the
courts of England, nor that of most of the courts of last resort in this
country, we think, on principle, it is a distinction that ought to be
taken."

But this distinction has not been overlooked in the adjudications upon
this subject. In the earl}' case of Farwell v. Boston & Worcester R. R,
Corp., 4 Met. 49, the consideration of a distinction between those two
classes of cases was pressed upon the court. ^ . , . The reasons here
set forth are a strong answer to the position taken in the Illinois cases.
They show an obvious impracticability in trying to gauge the liability
of an employer, in a complex business, b}- the independence of its dif-
ferent branches, or by the intercommunication of those employed. Not
only would it be almost impossible, in many cases, to separate the work
into distinct departments and to discern their dividing lines, but inci-
dental duties, changing the relations of workmen to each other, would
vary also the master's liability. He would thus be liable for the negli-
gence of a servant at one time or place and not at another. Without a
personal supervision of all his help in all their work, he could not know
when he was responsible and when he was not. Moreover, such a rule
would govern the liability of a master when the groundwork upon which
the rule is founded did not exist. For if the test of liability be that of
the separate and independent duties of the servants, they may, never-
theless, be so near each other as to be able to exert a mutual influence
to caution ; or, if it be that of association, they may still be in the same
department, but unable, from their duties or position, to exert such in-
fluence. But, aside from these considerations, we do not think the rule
is correct in principle. The principle upon which the determination of
Farwell v. Boston &, Worcester E. R. Corp. proceeded is the same that has
been generally followed in England and in this country, namely, that the
rights and liabilities of both master and servant are those which grow
out of their contract relation. The master impliedly agrees to use due
care for the safety of his servant, in providing suitable places and ap-

1 Here was quoted a passage from Farwell v. Boston & Worcester Railroad Corpo-
ration, ante, p. 786. — Ed.

SECT. II.] BKODEUK V. THE VALLEY FALLS CO. 823

pliances for work ; and, as is universally conceded, the servant agrees
to assume the ordinary risks of his employment. The most common
risks of service spring from the negligence of fellow-servants. When
one works with others, he knows that his safety depends on the exer-
cise of care by those around him, as their safety- depends also upon his
own caution. No man can enter into an employment without a thought
of tliis. Negligence, therefore, among workmen is a breach of the duty
which each owes to the others, and not a breach of the master's duty, if
he has exercised tlie care that is required of him. For his own negli-
gence the master must answer ; but for that of others, which is a risk
incident to ever}- employment, he has not agreed to be responsible, but
on the contrary the servant has impliedly agreed to assume it upon him-
self. The contract relation, therefore, puts them outside of the rule
which makes a master liable to a stranger for the negligence of his
agent ; for respoTideat superior is based upon considerations of public
polic}' which are not called for in the relation between master and ser-
vant. The cases cited In' the defendant abundantl}' illustrate and sup-
port the generall}' recognized doctrine that servants under the same
master, in a common service, are fellow-servants, although they may be
engaged in different departments of labor.

But the plaintiff further contends, even in this view of the case, it is
onlv the ordinary risks, which can be reasonabl}' foreseen and taken
into account, that the servant assumes ; and, consequentl}', since the
deceased could not foresee such an act of carelessness as the throwing
of the barrel, it is not within the risks assumed. We have alread}' said
that the ordinary risks include the carelessness of others. This rule is
distinctly recognized in Railroad Company r. Fort, 17 Wall. 5.53, one
of the cases cited by the plaintiff upon this point. The court say :
" The employee, in entering the service of the principal, is presumed to
take upon himself the risks incident to the undertaking, among which is
to be counted the negligence of fellow-servants." In that case a boy of
tender years was sent by a superior, whose orders he was required to
obey, to adjust a belt in a dangerous place, outside of his regular duties,
in ignorance of the danger. There is a wide difference in the applica-
tion of the rule in such a case and in the ease at bar. The argument of
the plaintiff here, if followed, would abrogate the rule ; for the careless
acts of another are just the ones that cannot be foreseen. If the}' could
be, it would be because they were a part of the ordinary way of doing
things, and, therefore, presumably not negligent. They are, neverthe-
less, a part of the ordinary risks. We think the plaintiff's claim that
the deceased and the overseer of the slashing room are not to be
regarded as fellow-servants is untenable, and that the demurrer to the
declaration must be sustained. Demurrer sustaified.^

Patrick J. McCarthy^ for plaintiff.

James M. Ripley^ for defendant.

* Ace.: Gormley v. Ohio & Mississippi Ry. Co., 72 Ind. 31 (1880). —Ed.

824 LITTLE MIAMI KAILROAD CO. V. STEVENS. [CHAP. VL

SECTION II. {contmued).
(B) Suitable Appliances, Agents, Premises, and Regulations. And

HEREIN OF the ViCE-PrINCIPAL DoCTRINE.

THE LITTLE MIAMI RAILROAD COMPANY v. STEVENS.
Supreme Court of Ohio. 1851.

[20 0/uo, 415.J1

Error to the Common Pleas of Hamilton Count}'. '^

Charles Fox and French, for plaintiff in error.

George F. P(f;/h, Peter Zinn^ George II. Pendleton, and D. T.
Wright, for defendant in' error.

Caldwell, J. Stevens was the engineer on one of the trains of cars
of the Little Miami Railroad Compan}'. The upward and downward
trains of cars had, previous to August 13, 184G, passed each other at
Plainville, about nine miles from Cincinnati. A change of the place of
passing had been determined on, namel}-, that the cars should pass at
Columbia, instead of Plainville, the two places being about three miles
apart. This change was to take place on the 13th of August, 1846, the
day on wliich the collision occurred. It is the universal custom of the
company-, when a change of this kind takes place, to give the engineers
a printed card, setting forth the times of starting, places where the cars
are to pass, time of running, &c., containing the change that has been
made. On the day on which the collision took place, the plaintiff,
Stevens, was the engineer on the upward train from Cincinnati to
Springfield, and Geo. Smith was the conductor. On the route the con-
ductor, according to the rules of the company, is the commanding
officer, so far as determining when the cars shall start and stop, &c.
The upward train came in collision with the downward train about
seven miles from Cincinnati, between Columbia and Plainville, and
Stevens was ver}- much injured by scalding ; his recover}' was doubtful
for some time ; he was confined for months, and has been injured for
life. The engineer and conductor of the downward train had received
their cards, stating the change, and they were running in accordance
with it, expecting to pass the upward train at Columbia. There is no
evidence that Stevens had received a card stating the change ; indeed,
it is clearly inferable, from the evidence, that he had not. Paul Hues-
ton, who was the baggage-master on the train, states that, at the time
of the collision, he had heard nothing about the change ; he also states,
that, at the time the collision took place, A. H. Lewis, who was an
oflScer of the company (in what capacity does not appear), took out of

1 The case in the court below is reported in 7 Western Law Journal, 369 (1850).— ^
Ed.

2 The reporter's statement is omitted. — Ed.

SECT. II.] LITTLE MLVMI RAILROAD CO. V. STEVENS. 825

his pocket two cards, and hauded them to him, aud told him to give
one of them to Stevens, the engineer, and the other to Smith, the con-
ductor. N. Morrill, the chief clerk, testifies that, on the morning of
the day on wliich the collision took place, Thomas L. Cole, an assistant
in the engineering department, handed to Smith, the conductor, a time
card, and that Smith showed it to him, witness, after he had received
it ; he says he knows of no card being delivered to Stevens. Isaac
West states that, when the cars reached Columbia, Stevens stopped ;
that Smith, the conductor, went forward through the cars and asked
him why he stopped ; that Stevens inquired of him whether the change
did not take place tliat day, and the cars pass there ; that Smith re-
plied that the change did not take place on that day, but named a sub-
sequent day on which it was to take place ; Smith then told Stevens to
go on, and the cars immediatel}' proceeded.

Other witnesses speak of the stoppage of the cars at Columbia, and
also of seeing Smith in the attitude of conversation with Stevens, but
the}- did not hear what, if anytliing, was said. One witness states
that lie saw Smith give the motion of the hand to Stevens to proceed.

The cause was submitted to the jur}-, who found a verdict for the
plaintiff. The defendant moved for a new trial, and also an arrest of
judgment, which motions were overruled, and judgment entered on the
verdict. The defendant took a bill of exceptions, in which the evidence
is set forth, as well as a number of charges, which were asked to be
given bj' the court to the jur}- by the defendant, which were refused by
the court.

The main question arises on the refusal of the court to charge, on a
single point, and on the charge affirmativelv given on the same point ;
and although this question is presented in different forms by the charges
asked, yet we think it is full\- presented b}- the second charge asked
and refused, which reads as follows : '■ That where two or more persons
are employed b}' one individual or company, and, in doing the work the}'
are employed to do, one of them, by his negligence and inattention to
his duties, causes an injury to the other, no action can be sustained
against the employer, w^hether he be an individual or a company."

The proposition here stated, and contended for on the part of the
company, is, that whilst it is admitted that the company would be liable
to the fullest extent for an injury done to a person having no connection
with the company, b}' the negligence of one of their agents, yet that
Smith and Stevens, both being in the employ' of the compan}-, the com-
pany would not be liable for an injury done to Stevens, through the
negligence of Smith and the other agents of the compan}'.

It is a general rule that a person, in the management of his business,
whether he does it himself or acts through agents, must so conduct
that business as not to interfere with the rights of, or produce injury to
others. This devolves on the part}- care and prudence in the manage-
ment of his business, and renders him civilly responsible for anj- injury
that ma}- result to others from the want of such care and prudence,

826 LITTLE MIAMI RAILROAD CO. V, STEVENS. [cHaP. VL

whether the injury ma}' be done under his own immediate supervision,
or under the control of agents. This doctrine is founded in reason.
What can be more reasonable than that he who puts an}' power in
motion for his own benefit, wliich, from its nature, may be destructive
to the property and life of others, if not carefully managed, should be
accountable for such injur}' as may be caused by the careless manage-
ment of such power. An injury has been done ; it has fallen on a party
who is guilty of no wrong, no carelessness ; it has been done by a force
put in motion by a party who has caused the injury by his careless
management. On whom shall tlie loss fall? On the innocent person
who had no control or management of the thing that produced it? Or
shall it not rati)er fall on the person who put the power in motion, for
whose benefit it moves, who is in duty bound to provide for its proper
management, who selects his agents, controls their movements, and who
gives them their authority to act?

Indeed, the rule is not only a reasonable one, that the emi)loyer
should make good the injuries thus done by the carelessness of his agents ;
but it is necessary as a preventive of mischief, and a protection to the
community, that it should be strictly adhered to. The rule is founded
on the principles of justice between man and man, and, abstractly con-
sidered, is of universal application. There must be some good reason
for taking any case without its application.

It is said, however, that when a party contracts to perform services,
he takes into account the dangers and perils incident to the employment,
and receives wages accordingly. Take this for granted ; and we think
it falls far short of sustaining the main proposition. If the party does
contract in reference to the perils incident to the business, he will only
be presumed to contract in reference to such as necessarily attend it
when conducted with ordinary care and prudence. So far as an implied
contract, in reference to the business, will be presumed, it will be on
the hypothesis that the business is to be properly managed. He cannot
be presumed to have contracted in reference to injuries inflicted on him
by negligence ^ — by wrongful acts. An express stipulation would at
least be necessary to make it a part of the contract. The employer has
paid him no money for the right to bi'eak his legs, or, as in this case, to
empty on him the contents of a boiler of scalding water. It was not
the expectation, when the company hired Stevens, that the two trains
should run bv different cards and thus come in collision.

When a man employs another to do work for him, each incur their
obligations. The person hired is bound to perform the labor according
to the agreement, and the employer is bound to pay ; besides that,
neither party has parted with any of his rights. The employer has no
more control over the person he has employed, outside of the service to
be rendered, than he has over the person of any other individual; and
is equally accountable for an injury to it.

In this case the evidence leads the mind irresistibly to the conclusion
that Stevens had not received a card, or any certain information that

SECT. II.] LITTLE MIAMI RAILROAD CO. V. STEVENS. 827

the change was to take place on the day of the collision. The effects
of a collision are so dangerous that it was certainl}' the dut}' of the
compau}- to furnish him with that information ; without such informa-
tion he, as a matter of course, would run by the card that he had for-
merly' been running b}', which would place the trains in danger of a
collision. It would appear from the evidence that he had heard some-
thing of it, but he was told by Smith, the conductor, that the change
was not to take place on that da}-, and to proceed. He obeyed, and
suffered the injury in consequence.

It is said that Stevens was guilty of negligence himself in not stop-
ping at Columbia. And further, that he was negligent in running as
fast as he did, and not keeping a man on ahead to give notice of
the approach of a train, he, Stevens, having reason, as is alleged, to
believe that the}' were in danger of meeting the other train. And
several charges were asked as to what would constitute negligence on
his part; some of these charges the court overruled, and which ruling
of the court is assigned for error.

When we take into account the fact that Stevens had not received
the ordinary notice of the change, and the fact that he was told that the
change did not take place until a subsequent da}', by the person who
had the control of the cars, and the right to give him his orders as to
running and stopping, we do not think that there was evidence showing
negligence on his part ; and that charge, from the state of evidence,
was immaterial. Stevens had engaged to labor for the company in a
subordinate capacity ; he has received the injur}' from the negligence
of those placed over him by the company, as the jury have found, and
we do not see why the company are not liable to him for the amount of
the damage he has sustained.

It is contended, however, on the part of the company, that public
policy forbids the right of a party to bring suit against his employer for
an injury by another in the same employ, because it is supposed that it
will lead to carelessness on the part of those employed, when they know
that they can recover for any damage that they may receive. In answer
to this, it may be remarked, that it is only where the person has been
careful himself, that any right of action accrues in any case. Besides,
we do not think it likely that persons would be careless of their lives
and persons or property, merely because they might have a right of
action to recover for what damage they might prove they had sustained.
If men are influenced by such remote considerations to be careless of
what they are likely to be most careful about, it has never come under
our observation. We think the policy is clearly on the other side. It
is a matter of universal observation, that in any extensive business,
where many persons are employed, the care and prudence of the em-
ployer is the surest guaranty against mismanagement of any kind. The
employer would, we think, be much more likely to be careless of the
persons of those in his employ, since his own safety is not endangered
by any accident, when he would understand that he was not pecuniarily

828 LITTLE MIAMI RAILROAD CO. V. STEVENS. [CHAP. VL

liable for the careless conduct of his agents. Indeed, we think that
those who have others in their emploj' are under peculiar obligations to
them to provide for their safety and comfort, and we tliink they should
at least be held legally responsible to them as much as to a stranger.

We could easily suppose a case where two persons employed b}' the
same individual, and standing on a perfect equality, where the busi-
ness was managed as much by one as the other, — where tliey would
stand on the same footing as men in the corauiunity generally do, — in
which the emplo3er would not be liable for an injury done to one by
the negligence of the other. But we regard this case as standing on
entirely a different footing.

Amongst other cases, we have been referred to those of Farwell v.
The Boston and Worcester Railroad Corporation, 4 Mete. 49 ; and
Murray v. South Carolina Railroad Company. The case in 4 Metcalt
denies the right of recovering principally on two grounds, namely, that
the person employed contracts with reference to the perils of the em-
ployment ; and that he receives a compensation, in tlie way of wages,
for such perils, and therefore he cannot recover ; and that it would be
contrary- to public policy to permit a recover}-, as the tendencj- would
be to produce carelessness on the part of persons thus employed. The
decision in 1 McMullan appears to be based principall}' on the first of
these two propositions. We have noticed both of these propositions in
our previous remarks. In both cases, much stress is laid upon the fact
that no precedent, of a recovery under such circumstances, is to be
found. It is to be noticed that in both of these cases the facts differ
in some particulars from the present ; we must admit, however, that
the reasoning in those cases would cover the one now before us. So
far as those cases decide that a recovery cannot be had in a case like
the one now before the court, we think they are contrary to the general
principles of law and justice, and we cannot follow them as precedents.
The court, then, are of the opinion that there was no error in the
charge of the court, and that the evidence warranted a recovery on the
part of Stevens.

The Judgment will, therefore, be affirmed.^

1 In Hutchinson v. York, Newcastle & Berwick Ry. Co , 5 Exch. 343, 3,53 (1850),
Alderson, B., for the court, said • " Though we have said that a master is not in gen-
eral responsible to one servant for an injury occasioned to him by the negligence of a
fellow-servant while they are acting in one common service, yet this must be taken
with the qualification that the master shall have taken due care not to expose his
servant to unreasonable risks. The servant, when he engages to run the risks of his
service, including those arising from the negligence of fellow-servants, has a right to
understand that tlie master has taken reasoual)le care to protect him from such risks
by associating him only with persons of ordinary skill and care."

In Paterson v. Wallace, 1 Macq. 748, 751 (1854), Lord Cranworth said : " When
a master employs a servant in a work of a dangerous character, he is bound to take all
reasonable precautions for the safety of that workman. This is the law of England
no less than the law of Scotland. It is the master's duty to be careful that his servant
is not induced to work under a notion that tackle or machiner}- is stanch and secure

SECT. II.] LITTLE MIAMI RAILROAD CO. V. STEVENS. 829

Hitchcock, C. J. I concur in the opinion of the Court affirming the
judgment of the Court of Common Pleas ; and it seems to me that this

when in fact the master knows, or ought to know, that it is not so. And if from any
negligence in this respect damage arise, the master is responsible."

The principal case was followed in Cleveland, Columbus & Cincinnati Railroad Co.
V. Keary,3 Ohio St. 201 (1854), wherein, at pp. 210-211, 218, Kanney, J., for the court,
said : —

" As corporations can act only through their agents and officers, authorized to exer-
cise the functions conferred by their charters, there is much force in the view of the
late C. J. Hitchcock, that the superintendent (and conductor when running a train) of
a railroad, ought to be regarded as the proper representatives of the company, and their
acts considered as those of the company. But I do not think it necessary to insist
upon this position. Let the company be liable only upon the maxim respondeat supe-
rior, or upon the obligations arising out of the contract of service, and in either view,
their liability for injuries to their subordinates, caused by the carelessness of the con-
ductor they have placed over them, in charge of the train, is, in our opinion, sufficiently
apparent. This conclusion rests wholly upon the idea that the company, from the very
nature of the contract of service, is under obligations to them, as well as they to the
company ; and that among these obligations is that of superintending and controlling,
with skill and care, the dangerous force employed, upon which their safety so essen-
tially depends. For this purpose the conductor is employed, and in this, he directly
represents the company. They contract for, and engage his care and skill. They
commission him to exercise that dominion over the operations of the train, which
essentially pertains to the prerogatives of the owner ; and in its exercise he stands in
the place of the owner, and is in the discharge of a duty which the owner, as a man
and a party to the contract of service, owes to those placed under him, and whose lives
may depend on his fidelity. His will alone controls everything, and it is the will of the
owner that his intelligence alone should be trusted for this purpose. This service is not
common to him, and the hands placed under him. They have nothing to do with it.
His duties and their duties are entirely separate and distinct, although both necessary
to produce the result. It is his to command, and theirs to obey and execute. No .ser-
vice is common that does not admit a common participation ; and no servants are
fellow-servants, when one is placed in control over the other. . . .

"As between the company and those employed to labor in subordinate situations under
the control of a superior, two distinct classes of obligations arise — the one resting upon
the company, and the other upon the servants — and both founded upon what each, either
expressly or impliedly, has agreed to do in execution of the contract. It is the duty of
the company to furnish suitable machinery and apparatus, and, as they reserve the gov-
ernment and control of the train to themselves, and intrust no part of it to these ser-
vants, to control it and them, with prudence and care. As the necessity for this prudence
and care is con.staut and coutinuiug, the obligation is performed only when it is constantly
exercised, and they cannot rid themselves of it by devolving this power upon the con-
ductor. If they intrust him with its exerci.se, in the language of Judge Story, they
' in effect warrant his fidelity and good conduct.'

" It is the duty of the servants to obey the orders of the superior thus placed over
them, and to perform as he shall direct. If they fail to do this, and injure each other,
they violate their engagements to the company, and are alone answerable for the
wrongs they may do. In such case there is no failure of the company to do what, as
between them and these servants, it was understood they should do, when the servants
entered the service. But they cannot be made to bear losses arising from carelessness
in conducting the train, over which their employer gave them no power or control, either
separately or collectively, until we are prepared to say that justice and public policy
require the consequences of duty omitted by one party to be visited upon the other,
although stripped of all power to prevent such con.sequences."

In Railway Co. v. Ranney, 37 Ohio St. 665, 669 (1882), McIlvaine, J., for the
eourt, said : " The respective rigiits and duties of employer and employee sound in

830 LITTLE MIAMI RAILROAD CO. V. STEVENS. [CHAP. VL

ma}- be done without conflicting at all with the authorities which have
been cited b\' the plaintiffs in Error. If this case were, in its principal
features, like an}' one of those reported and referred to, I should hesi-
tate long before I would consent to disregard those decisions. They
were decisions made b}' highh' respectable tribunals, and bv men whose
opinions are entitled to the highest consideration. But in each case
referred to as being decided in the United States, the action was com-
menced for an injur}' received b}' one employee or servant of the Com-
pan}', in consequence of the neglect or default of another employee or
servant of the same Company, both at the time being engaged in the
running of the cars.

This case, as it appears from the bill of exceptions, is entirely dif-
ferent. The neglect complained of, is not the neglect of an employee,
or servant of the Compan}' upon the road, but the neglect of the Com-
pany itself; so far as an incorporated company can be chargeable with
neglect. 1 . . .

Had cards been delivered to the conductor and engineer on the up
train, as the}' should have been, there is no probability that there would
have been any collision.

Here was negligence, in consequence of which, an injury resulted to
the defendant in error. It was not the negligence of any employee of
the Corapanv, assisting in running the cars ; unless, by possibility, the
conductor of the train had been notified of the change, of which there
is no satisfactory proof. But it was the negligence of the Company
itself, or of its immediate agent, the superintendent of the road.

Now suppose an individual had been placed in the situation of the
Railroad Company, and a similar injury had resulted, in consequence of
a like neglect on his part, can there be a doubt that he must have been
liable to respond in damages for that injury? If under such circum-
stances an individual would be liable, surely there can be no sound
reason why a corporation should not be. In this respect, I should be
disposed to put corporations and individuals upon the same footing.

But it is said a corporation acts by agents, and if it employs faithful^
and competent agents, this is all that can be required. True, a rail-
road company must act by agents, but I apprehend it must be responsi-

contract. The employer implicitly engages to use reasonable care and diligence to
secure the safety of tlie employee, and among other things, to exercise reasonable care
in the selection of prudent fellow-servants. He also engages that every one placed in
authority over the servant, with power to control and direct him in the performance of
his duties, will exercise reasonable care in providing for his safety, whether such supe-
rior be a fellow-servant or not, in the ordinary sense. The superior, in bis relation to
the subordinate servant, is, in the language of Judge Day, in Railroad Co. v. Lewis, 33
Ohio St. 196, the alter ego of the master. The doctrine, which imputes to the master
the negligence of a servant to whom be has delegated authority over other servants,
has been firmly ingrafted in the jurisprudence of this state ever since the case of Little
Miami R. R. Co. v. Stevens."

And see Louisville & Nashville Railroad Co. v. Collins, 2 Duvall (Ky.), 114 (1865);
Chicago, Milwaukee & St. Paul Ry. Co. u. Ross, 112 U. S. 377 (1884). — Ed.

^ The opinion has been abbreviated. — Ed.

SECT. II.] SKIPP V. EASTERN COUNTIES R.\ILWAY CO. 831

ble for the acts or neglects of those agents, so long as the agents are
acting within the scope of their authorit\\ The superintendent is a
proper representative of the Company, and perhaps to a certain extent
the conductor of a train may be. But the employees or servants of the
Company, engaged in making or repairing their road, or in running
their cars, cannot be held to be their agents.

It is because this injury resulted from the negligence of the Company
itself, or of an agent whose duty it was to give the notice before referred
to, tliat I hold the judgment should be affirmed ; and it seems to me
the case is entirely different from those referred to in the books. . . .

Spalding, J., dissenting.^

SKIPP V. THE EASTERN COUNTIES RAILWAY COMPANY.
Exchequer. 1853.

[9 Exch. 223.]

The declaration stated, that before and at the time of the plaintilof's
entering into the service and employ of the defendants, and of the com-
mitting of the grievance hereinafter mentioned, the defendants were
the proprietors of a certain railway', and used and accustomed to carry
passengers and goods as common carriers for hire upon the said rail-
wa}-, in and b}' and with certain trains of carriages and trucks drawn
by locomotive engines upon the said railwa}' ; and certain servants of
the defendants called guards were then used and accustomed, amongst
other duties, to aid and assist in preparing trains to be started upon
the said railwa}^ ; of all which premises the defendants then had notice.
And thereupon the plaintiff entered into the service and employ of the
defendants, and the defendants retained and emplo^-ed the plaintiff,
and he then became their servant in the capacitj' of such guard as
aforesaid, upon the term and condition (amongst others), that the
defendants should take all due and reasonable means and precautions
in order to prevent unreasonable and unnecessary danger being caused
to the plaintiff in the performance of his dut^y as such guard as afore-
said. Yet the plaintiff in fact saith that, although he continued in the
said service and employ of the defendants in the capacit}' and upon
the terras and conditions aforesaid for a long time, and the plaintiff
during all that time did all things ; and all things then occurred and
happened necessary- to entitle him to have the said term and condition
performed b}' the defendants ; 3'et the defendants did not, during the
said last-mentioned time or an}' part thereof, take such due or reason-
able means or precautions as aforesaid, but altogether omitted so to
do ; and a certain train, which the plaintiff in the performance of his

^ This opinion contained an extended review of the authorities as to fellow-ser
vants. — Ed.

832 SKIPP V. EASTERN COUNTIES RAILWAY CO. [CHAP. VI.

duties as such guard as aforesaid had to aid and assist in preparing to
be started on the said railway, and whilst the plaintiff was so aiding
and assisting as last aforesaid, for the want of the defendants taking
such due or reasonable means or precautions as aforesaid in that behalf,
and on no other account, cast and threw the plaintiff, whilst he was
performing his said duty as such guard as aforesaid, down to and upon
the said railway and under the said train, and the wheels of the same
then, by means of the premises, crushed the arm of the plaintiff, whereby
the plaintiff was forced and obliged to and did have his arm amputated,
and was hindered and prevented from performing or transacting any
affairs or business ; and the plaintiff, by reason of the said amputation,
will never again be able to obtain his livelihood. Plea, not guilty, and
issue thereon.

At the trial, before Martin, B., at the London Sittings in the present
Term, it appeared that the action was brought by the plaintiff to recover
compensation for an injury he had received whilst in the service of the
Company. The plaintiff had for many years acted as a guard, and
had for three months prior to the accident been on duty at Lea Bridge
station upon the line. It was his dutj- at that station to attach the
trucks of the goods train which were to proceed to Norwich. The time
allowed for the duty was limited, as the next passenger train followed
in about a quarter of an hour. In attaching the trucks the plaintiff
was knocked down, and his arm was so severely injured that it became
necessary* to amputate it. Evidence was given to show that the work
■was too much for the number of servants employed by the Company ;
but it did not appear that the plaintiff had ever made any complaint
upon the subject to the Compau}-.

Upon this state of facts, the learned Judge was of opinion that the
Company was not liable. The plaintiffs counsel requested that the
case might be submitted to the jury, but this his Lordship declined to
do ; and the plaintiff was nonsuited.

James now moved for a rule 7iisi for a new trial, on the ground of
misdirection. The plaintiff does not dispute the general principle
which has been recognized and acted upon in the cases of Hutchinson
V. York, Newcastle, and Berwick Railway Company, 5 Exch. 343,
Wigmore v. Jay, Id. 354, and Priestley v. Fowler, 3 M. & W. 1, that
a master is not in general liable to one servant for damage resulting
from the negligence of another ; but he rests his present cause of action
upon a different ground. The plaintiff complains that the misfortune
occurred by reason of the defendants' omission to provide a suf!icicnt
number of servants to perform the work in which he was engaged.
The only plea being not guilty, the first question is, what are the alle-
gations in the declaration which are admitted. The allegation of the
duty which tlie defendants have imposed upon themselves, and upon
which undertaking the plaintiff entered their service, is not traversed.
[Parke, B. The defendants were bound to use all due and reasonable
care only. Here the plaintiff was engaged in the same work for several

SECT. TI.J SKIPP V. EASTERN COUNTIES RAILWAY CO. 833

months, and made no complaint whatever as to the inadequacy of the
means employed. If he felt that he was in danger, by reason of the
want of a sufficient number of fellow-servants, he should not have
accepted the service.] The time allowed for the work, in the perform-
ance of which the accident occurred, was ver^- limited. [Platt, B.
The case falls within the maxim, volenti nonfit injuria. Martin, B.
I acted upon that principle at the trial, being of opinion that the Com-
pany was not liable, as the plaintiff had done the same work for several
montlis, without any intimation on his part that he was unable to carry
it on ; and I therefore considered him a voluntary agent.] It was a
question for the jury, whether the Compan}- had in their employment
a sufficient number of servants for the performance of this work. If
they had not, they did not use due and reasonable care to prevent
danger.

Parke, B. There ought to be no rule. This is an attempt to cast
upon the jury the duty of fixing the number of servants which a Rail-
way Company ought to have ; but in a case like the present, the
Company are themselves the proper judges of the number the}' require
for carrying on the business of the line ; and the question proposed was
not a proper one for the jury.

Aldersox, B. As between the public and the Compan}', the former
ma}- be the proper judges of the number of servants required ; but that
is not so as between the Company and their own servants.

Platt, B., concurred.

Martin, B. I think that if the case had gone to the jury, they
must have found a verdict for the defendants. But as I entertained
a very strong opinion upon the matter, I thought it clearly to be my
duty not to leave the case to them, upon the chance of their finding
a verdict for the plaintiff from motives of commiseration. The plaintiff
brought the accident upon himself, for, if he found that he could not do
the work which was set him, he ought to have declined it in the first
Instance. He, however, carried it on for several months, and never
made the least complaint upon the matter.

Rule refused}

^ " xxvir. Scienti et consentienti non fit injuria neque dolus." Sexti Decretalium,
lib. V. tit. xii., De regulis juris. See ante, p. 1, n. 1.

In Dynen v. Leach, 26 L. J. n. s. Ex. 221 (IS.'iT), Pollock, C B., said: " A master
is not bound to use the safest method. A pair of steps is safer than a ladder, but
business could not go on if ladders were discarded." And Bkajiwell, B., said :
" There is nothing legally wrongful in the use by an employer of works or machinery
more or less dangerous to his workmen, or less safe than others that might be adopted
It may be inhuman so to carry on his works as to expose his workmen to peril of their
lives, but it does not create a right of action for an injury which it may occasion when,
as in this case, the workman has known all the facts and is as well acquainted as the
master with the nature of the machinery and voluntarily uses it."

In Woodley v. Metropolitan District Ry. Co., 2 Ex. D. 384, 388-389 (C. A., 1877),
CocKBURX, C. J., said : " A man who enters on a necessarily dangerous employment
with his eyes open takes it with its accompanying dangers. On the other hand, if the
danger is concealed from him and an accident happens before he becomes aware of it,

834 TARRANT V. WEBB. [CHAP. VI.

TARRANT v. WEBB.

Common Pleas. 1856.

[18 C. 23. 797.]

This was an action brought by the plaintiff, a workman, to recover
damages for an injury sustained by him from the falling of a scaffold-
ing on which he was working in the employ of the defendant, a house
decorator.

The declaration stated that the plaintiff was employed by the defend-
ant to do certain work for the defendant on a scaffolding erected by
the defendant for that purpose ; yet that the defendant so carelessly,
negligently, and improperly erected the said scaffolding, and employed
the plaintiff to work thereon, that, by reason of the negligence, care-
lessness, and improper conduct of the defendant, the plaintiff was
exposed to unreasonable risk in his said work, and the said scaffolding
gave wa}-, and the said plaintiff was thrown therefrom and seriously-
injured, and became and was, and still continued, unable to follow his
trade as a painter, and had been and was otherwise damnified, and the
plaintiff claimed £200.

The defendant pleaded not guilty, whereupon issue was joined.

The cause was tried before Ckowder, J., at the second sitting at
Westminster in Trinity Term last. The facts were as follows : The
defendant was employed to decorate the Carlton Club-house. In order
to paint the entrance hall, a scaffolding was erected about thirty feet

or if he is led to expect, or may reasonably expect, that proper precautions will be
adopted by the employer to prevent or lessen the danger, and from the want of such
precautions an accident happens to him before he has become aware of their absence,
he may hold the employer liable. If he becomes aware of the danger which has been
concealed from him, and which he had not the means of becoming acquainted with
before he entered on the employment, or of the want of the necessary means to prevent
mischief, his proper course is to quit the employment. If be continues in it, he is in
the same position as though he had accepted it with a full knowledge of its danger in
the first instance, and must be taken to waive his right to call upon the employer to do
what is necessary for his protection, or in the alternative to quit the service. If he con-
tinues to take the benefit of the employment, he must take it subject to its disadvant-
ages. He cannot put on the employer terms to which he has now full notice that the
employer never intended to bind himself. It is competent to an employer, at least so
far as civil consequences are concerned, to invite persons to work for him under circum-
stances of danger caused or aggravated by want of due precautions on the part of the
employer. If a man chooses to accept the employment, or to continue in it with a
knowledge of the danger, he must abide tlie consequeuces, so far as any claim to com-
pensation against the employer is concerned. Morally speaking, those who employ
men on dangerous work without doing all in their power to obviate the danger are
highly reprehensible. . . . The workman who depends on liis employment for the
bread of himself and his family is thus tempted to incur risks to which, as a matter
of humanity, he ought not to be exposed. But looking at the matter in a legal point
of view, if a man, for the sake of the employment, takes it or continues in it, with a
knowledge of its risks, he must trust to himself to keep clear of injury." — Ed.

SECT. II.] TARRANT V. WEBB. 835

high, upon which the plaintiff and four other journeymen were at work.
This scaffolding having been insecurely built, one of the upper poles
broke, and the plaintiff was precipitated to the pavement below, and
severely injured.

The scaffolding was erected by one Martin, who was employed for
that purpose by the defendant, — the defendant himself not interfering
with it, except, that, when Martin told him that the painters said it
wanted an additional upright in the centre to make it secure, the
defendant observed, tliat, if he (Martin) hearkened to the painters, he
would have nothing else to do.

It appeared that the accident was mainly attributable to the want of
that additional upright ; but one of the witnesses ascribed it partly to
an undue accumulation of boards which had been placed on the scaf-
folding by the workmen themselves.

On the part of the defendant it was submitted, on the authority of
Wigmore v. Jay, 5 Exch. 355, that the defendant was not responsible
for the failure of the scaffolding, if he neither personally interfered
with its erection, nor knowingly employed an unskilful and incompetent
person to erect it.

The learned judge, in leaving the case to the jury, told them, that,
if they were of opinion that the scaffolding was erected under the per-
sonal direction and interference of the defendant, and was insufficient,
or that the person employed by the defendant for the purpose of erect-
ing it was an incompetent person, the plaintiff was entitled to recover.

The jurj- returned a verdict for the plaintiff, damages £25, observ-
ing that they thought Martin was not a proper person to erect the
scaffolding.

31. Smith, in the course of the term, moved for a new trial, on the
grounds, — first, of misdirection on the part of the learned judge, in
telling the jury that the defendant would be liable if he employed
incompetent persons to erect the scaffolding ; for that the employment
of incompetent persons simply would not render the defendant liable,
and at all events would not do so unless the defendant knew of their
incompetency, of which there was no evidence ; secondlv, that the
verdict was against evidence. He also moved in arrest of judgment,
on the ground that the declaration did not show the breach of any duty
for which the defendant was liable to the plaintiff ; that no scienter of
the defendant was alleged ; and that it was consistent with the declara-
tion that the plaintiff knew that the scaffolding was unsound, and
voluntarily' undertook the risk.
Udall now showed cause.

Jehvis, C. J. I am of opinion that the rule must be made absolute
for a new trial, the case having miscarried in the wa}^ pointed out by
Mr. Smith on moving. It is unnecessary' to consider the question as
to the liability of a master for an injur}^ done to a workman through the
negligence of a fellow- workman. The rule is now well established, that
no action lies against the master for the consequences to a servant of

836 CLARKE V. HOLMES. [CHAP. VI.

the mere negligence of his fellow. That, however, does not negative
liabilit}' in every case. The master may be responsible where he is per-
sonally guilty of negligence ; but certainly' not where he does his best
to get competent persons. He is not bound to wan-ant their compe-
tency. The summing up, I apprehend, fails in this, that the jur}' might
have been of opinion that the defendant used every possible care to
employ a competent person to erect the scaffolding, and yet that he
was liable because it turned out that Martin was incompetent.

Cresswell, J. I am of the same opinion. The question was dis-
cussed the other day in the Court of Exchequer in a case of Degg v.
The Midland Railway Company, 1 H. & N. 773.

Williams, J. The cases expressly la}' it down that a master is not
generally responsible for an injur}- to a servant from the negligence of
a fellow-servant. But that rule is subject to this qualification, that the
master is guilty of no want of care in the selection of proper servants.
Unless the master is guilty of negligence in that respect, the case is not
taken out of the general rule. Mule absolute accordingly.

CLARKE, Appellant, v. HOLMES, Respondent.

Exchequer Chamber. 1862.

[7 H. Sr N. 937.]

This was an appeal from the decision of the Court of Exchequer in
discharging a rule to enter a nonsuit or grant a new trial. The plead-
ings and facts fully appear in the report of the case, 6 H. & N. 349.^

1 In 6 H. & N. 349, 351-352, the facts are thus stated : —

" The defendant was a cotton-spinner at Manchester, and the plaintiff was employed
hy him in his factory as ' under over-looker,' at weekly wages. It was the plaintiff's
duty to oil the machinery whenever it was required, which was several times a day.
This machinery was worked hy steam-power, the motion being communicated to
wheels through the medium of shafts. On the 5th of July, 1857, the plaintiff was
engaged in oiling a 'scutching machine' (for cleaning and tearing the cotton), and
in order to reach the spot where the oil was poured into the machinery through
small holes, he placed his left arm on the machine near the wheels to support himself,
and with his right liand lie held the vessel containing the oil, which he poured into
the machinery. His left arm was drawn into the machine and torn off. When the
plaintiff first entered the service the machine was fenced with an iron guard, but it
was broken hy accident, and the machine remained unfenced for above a year. The
plaintiff had frequently complained to the superintendent of the danger, and he prom-
ised that the guard should be mended. On one occasion the defendant had looked at
the machine and said that the guard should be mended. In some factories it was tlie
practice to stop the machines whilst they were being oiled, but not in the defendant's,
the superintendent having directed the plaintiff, when he was first employed, not to do
so. There were two other scutching machines and six other machines (three ' breaks'
and three ' finishing ' machines) in the same room, and several women worked in it
feeding the scutching machines with cotton. There was a passage between the

SECT. II.] CLARKE V. HOLMES. 83T

T. Jones argued for the defendant (the appellant).*

Bliss (Aspland with him), for the plaintiff (the respondent).

Cur. adv. vutt.

CocKBUKN, C. J.^ Independently of any statutory- duty or obligation,
there was negligence in the defendant in not fencing the machinery on
which the plaintiff was employed. And although the declaration in
this action is based on the alleged statutory dut\- of the defendant to
fence the machinery, the leave to move was reserved on the question of
negligence, and there is full power to amend the pleadings ; and we
can therefore so mould the declaration as to make it appUcable to the
grounds on which we think the case should be decided.

I consider the doctrine laid down by the House of Lords, in the case
of The Bartonshill Coal Company r. Reid, as the law of Scotland with
reference to the duty of a master, as applicable to the law of England
also, namely, that where a servant is employed on machinery from the
use of whicli danger ma}- arise, it is the duty of the master to take due
care, and to use all reasonable means, to guard against and prevent
an}' defects from which increased and unnecessary danger may occur.
No doubt, when a servant enters on an employment from its nature
necessaril}' hazardous, he accepts the service subject to the risks inci-

ttiachines, but none of the worknaen had any business to pass the spot where the
plaintiff met with the accident, although there was notliing to prevent them, and many
were accustomed to do so.

" It was submitted, on behalf of the defendant : first, that this machinery was not
'mill-gearing' wliich was required to be fenced by the 7 & 8 Vict. c. 15. Secondly,
that the plaintiff had caused the injury by his owti negligence. Thirdly, that the
defendant was not liable, inasmuch as the plaintiff was the servant of the defendant
and did the work voluntarily and of his own accord, and with full knowledge of the
danger. The learned judge reserved the points, the pleadings to be amended, if neces-
sary, and his lordship left it to the jury to say, first, whether the injury was caused by
the want of proper caution on the part of the defendant ; secondly, whether the
plaintiff was guilty of negligence, either in the manner in which he oiled the ma-
chinery, or in continuing in the defendant's service after the fencing was removed. The
jury found the first question in the affirmative, and the second in the negative ; and
they gave a verdict for the plaintiff, with £200 damages.

" T. Jones, in last Michaelmas Term, obtained a rule nisi to enter a nonsuit, or for a
new trial." — Ed.

1 In the course of tins argument counsel said : " There was no accession of danger
beyond that originally accepted." Thereupon Cockburn, C. J., said: "The reason
why no action will lie, under ordinary circumstances, is because the servant knows
that he has undertaken a dangerous service ; here, there was extraordinary danger,
and was only submitted to on a promise by the master that it should be remedied."
Counsel then said : " Priestley v. Fowler shows that whenever a servant accepts a
dangerous occupation he must bear the risk." Thereupon Cockburn, C. .J., said :
" That is, whatever is fairly within the scope of the occupation, including the negli-
gence of fellow-servants ; here it is the negligence of the master." And Cromptox,
J., added : " It cannot be made part of the contract, that the master shall not be liable
for his own negligence." — Ed.

2 Passages declining to pass upon the applicability of 7 «&. 8 Vict. c. 15, and 19
& 20 Vict, c 38 are omitted from the opinions of Cockburn, C. J., and Cbomptok,
J. — Ei^

838 CLAEKE V. HOLMES. [CHAP. VL

dental to it ; or, if he thinks proper to accept an emplo3'ment on ma-
chiner\' defective from its construction, or from the want of proper
repair, and with knowledge of the facts enters on the service, the
master cannot be held liable for injurv to the servant within the scope
of the danger which both the contracting parties contemplated as inci-
dental to the emplo^'ment. The rule I am hning down goes only to
this, that the danger contemplated on entering into the contract, sliall
not be aggravated b}" an}' omission on the part of the master to keep
the machinery in the condition in which, from the terms of the contract
or the nature of the employment, the servant had a right to expect
that it would be kept.

In the present case, at the time the plaintiff entered on the employ-
ment, the machinery was properly fenced ; on its ceasing to be so, the
manager of the works, on the remonstrance of the plaintiff, promised in
the presence of the defendant, the master, that tiie defect should be made
good. It must be taken, therefore, that at the time the contract be-
tween the plaintiff and defendant was entered into, it was contemplated
by the parties that the machiner}- should be fenced. It follows that,
through the negligence of the master in omitting to keep the machinery
fenced, the servant has been exposed to danger to which he ought not
to have been subjected ; and, the injur}' of which the plaintiff com-
plains having thus arisen, the defendant is justly and properly liable.

It was, indeed, strongly urged upon us, on the part of the defendant,
that, as the plaintiff, upon becoming aware that the machinery was no
longer properly fenced, instead of refusing to go on, as he might have
done, continued to perform his service with a knowledge of the in-
creased risk to which he was exposed, he must be taken to have volun-
tariU' incurred the danger, and is, therefore, in the same position as if
he had originally accepted the service as one to be performed on un-
fenced machinery. I am, however, of opinion, that there is a sound
distinction between the case of a servant who knowingly enters into a
contract to work on defective machiner}', and that of one, who, on a
temporary defect arising, is induced by the master, after the defect has
been brought to the knowledge of the latter, to continue to perform
his service under a promise that the defect shall be remedied. In
the latter case it seems to me, that the servant b}' no means waives
his right to hold the master responsible for an}' injury which may arise
to him from the omission of the master to fulfil his obligation.

No doubt, a defect thus arising in machinery, may be such that no
man of ordinary prudence would run the hazard of working on it. If a
jury should find that a party complaining had materially contributed to
the injury by his own rashness, the action could not be maintained,
inasmuch as it is well established that a plaintiff who has materially
contributed to his own injury, by his own negligence, cannot recover,
although he may show negligence in the opposite party. But, the
question whether the injury of which a plaintiff complains is to be
ascribed whoUv to the negligence of the defendant, or whether the

SECT. II.] CLAKKE V. HOLMES. 839

plaintiff has had any share in bringing it about, is one wlioll}' for the
jury. In the present case, the jury have determined this question in
favor of the plaintiff, and we are bound by their decision. It is,
indeed, put to us that, notwithstanding this finding of tlie jur\', the
knowledge of the plaintiff that the machinery was unfenced, is, in
point of law, sufficient to prevent the plaintiff from recovering. But I
am of opinion that it is only a fact in the case, to be taken into con-
sideration b}- the jur^y, with all the other facts and circumstances, in
determining the question whether the plaintiff has himself helped to
bring about the accident in respect of which he seeks to charge the
defendant. In this sense, and in this sense onl}', such knowledge
might afford an answer to the action. It does not do so in point
of law. And, in the present case, on the finding of the jury, it does
not do so in point of fact. I am, therefore, of opinion, that the Court
of Exchequer were right in refusing to disturb the verdict for the
plaintiff.

WiGHTMAX, J. I concur in the judgment of the Lord Chief Justice,
but not in the reasons on which it is founded.

Cromptox, J., said. I have arrived at the same conclusion. It seems
to me that the only question reserved to us is whether the mere knowl-
edge of the plaintiff, when he did the act, of the dangerous state of the
machineiT, is a bar to his recovery, notwithstanding the negligence of
the defendant. I think it must be taken to have been found by the
juiy that there was negligence on the part of the defendant for which
he is responsible. ... I found m}' judgment on two propositions,
namely, that there is no defence under the principle of law laid down
in Priestley v. Fowler, 3 M. & W. 1, and the plaintiff has not contributed
to his injur}' b}* his own negligence. Where a partv enters upon a ser-
vice he must be supposed to have contemplated dangers arising within
the scope of his employment, including the negligence of his fellow-
servants, and therefore for ordinary risks he cannot expect to be in-
demnified. Here we need not consider what personal knowledge the
plaintiff had of the danger, because there was a neglect of duty on the
part of the defendant in not keeping the machinery' fenced, for which
he is responsible. It is said that mere knowledge is a defence ; I can-
not think so. The party cannot recover if he has contributed to the
accident ; and I agree with the observation of m}- lord, that knowledge
is only a part of negligence, and it is still a question whether there
was negligence or not. I am confirmed in that view by what Lord
Campbell said in Senior v. Ward, 1 E. & E. 385. Upon these grounds
I am of opinion that the judgment of the Court below ought to be
affirmed.

WiLLEs, J. I agree with the opinion of my brother Wigiitman.

Byles, J. I am of opinion that the judgment of the Court of Ex-
chequer must be affirmed.

This is a case of very great importance, and I am anxious that its
decision should repose on what seems to me the true ground.

840 CLARKE V. HOLMES. [CHAP. VL

I do not rest the right of the plaintiff to recover on the statutable
obligation incumbent on the master to fence the machinery, nor yet on
the personal knowledge of the master that the machinery' was iniprop-
erh' left unfenced, though I do not presume to intimate any disagree-
ment with the Court of P^xchequer.

But I think the master liable on the broader ground, to wit, that the
owner of dangerous machinery is bound to exercise due care that it is
in a safe and proper condition.

The case of Priestley v. Fowler introduced a new chapter into the
law, but that case has since l^een recognized by all the courts, includ-
ing the Court of Error and the House of Lords. So that the doctrine
there laid down, with all the consequences fairly deducible from it, are
part of the law of the land. But the principles laid down in Priestley v.
Fowler, and all the examples there given of their application, relate to
the conveniences and casualties of ordinary or domestic life, and ought
not to be strained so as to regulate the rights and liabilities arising
from the use of dangerous machinery.

It is, in most cases, impossible that a workman can judge of the con-
dition of a complex and dangerous machine, wielding irresistible me-
chanical power, and, if he could, he is quite incapable of estimating the
degree of risk involved in different conditions of the machine ; but the
master ma}' be able, and generally is able, to estimate both. The mas-
ter again is a volunteer, the workman ordinarily has no choice. To
hold that the master is responsible to his workman for no absence of
care, however flagrant, seems to me in the highest degree both unjust
and inconvenient.

On the other hand, to hold that the master warrants the safet}' and
proper condition of the machine, is equalh' unjust to the master, for no
degree of care can insure perfect safety ; and it is equally inconvenient
to the public, for who would emploj' such machines if he were an
insurer?

It seems to me that the true rule lies midway between these ex-
tremes, and I therefore agree in the conclusion arrived at b}' the Lord
Chief Justice. The master is neither, on the one hand, at libertj' to
neglect all care, nor, on the other, is he to insure safety, but he is to
use due and reasonable care. The degree and nature of that care are
to be estimated on a consideration of the facts of each particular case.
I do not sa}- that the degree of care is, in all cases, the same as the
master must observe towards strangers.

This rule seems to me the only rule consistent with justice and pub-
lic convenience. But I do not rest it on those considerations alone. It
reposes on very high authority. Lord Cranworth, in delivering the
judgment of the House of Lords in The Bartonshill Coal Company v.
Reid, 3 Macqneen, 266, states that, in the case of dangerous machin-
ery, the master is bound to exercise due care. It is true that this was
a Scotch case, but in that very case the law of Scotland and the law of
England were held to be the same in this branch of the law of master
and servant

SKCT. II.] CLARKE V. HOLMES. 841

It ma}' be true that some of the cases cited at the bar are not quite
consistent witli this rule, particularly those which seem to make the per-
sonal misconduct or personal knowledge of the master a necessary
ingredient in his responsibility. But we are a court of error, at liberty
to decide on principle, and fortified by higher authority. Why may not
the master be guilty of negligence by his manager, or agent, whose
employment may be so distinct from that of the injured servant, that
they cannot with propriety be deemed fellow-servants? And if a mas<
ter's personal knowledge of defects in his machinery be necessary to
his liability, the more a master neglects his business and abandons it to
others the less will he be liable.

It is said that the verdict exempting the servant from the charge of
negligence is inconsistent with the fact that he knew the machinery to
be unfenced. But knowledge is only an ingredient in negligence. It
may be, that the knowledge of the servant induced hira to use extraor-
dinary care, which care was yet insufficient to preserve him from acci-
dent. Besides, a servant knowing the facts may be utterly ignorant of
the risks.

Lastly, the original contract of the servant was to work with fenced
machinery, and it was his master, and not he, that violated the con-
dition ; and in so doing exercised a species of compulsion over the
servant.

For these reasons I think the plaintiff below is entitled to our
judgment. Judgment for the plaiittlff below.^

1 In Gibson v. Erie Railway Co., 63 N. Y. 449, 452 (1875), Allen, J., for the
court, commenting on the rule laid down by Cockhurx, C. J., said : " It is not neces-
sary to hold that this rule should be applied in all its rigor to casualties arising from
the use of complex and dangerous machinery, the condition of which, or the risks
involved in different conditions of it, an ordinary workman might be incapable of
judging."

In Hough V. Railway Co , 100 U. S. 21.3, 224, 225 (1879), Harlan, J., for the court,
said : " But he did have knowledge of the defective condition of the cow-catcher or
pilot, and complained thereof to both the master-mechanic and the foreman of the
round-house. They promised that it should be promptly remedied, and it may be
that he continued to use the engine in the belief that the defect would be removed.
The court below seem to attach no consequence to the complaint made by the engineer,
followed, as it was, by explicit assurances that the defect should l)e remedied. Accord-
ing to the instructions, if the engineer used the engine with knowledge of the defect,
the jury should find for the company, although he may have been justified in relying
upon those assurances. If the engineer, after discovering or recognizing the defective
condition of the cow-catcher or pilot, had continued to use the engine, without giving
notice thereof to the proper officers of the company, he would undoubtedly have been
guilty of such contributory negligence as to bar a recovery, so far as such defect was
found to have been the efficient cause of the death. He would be held, in that case,
to have himself risked the dangers which might result from the use of the engine in
such defective condition. But ' there can be no doubt that, where a master has ex-
pressly promised to repair a defect, the servant can recover for an injury caused
thereby, within such a period of time after the promise as it would be reasonable to
allow for its performance, and, as we think, for an injury suffered within any period
which would not preclude all reasonable expectation that the promise miglit be kept.'
Sheannan & Redf. Negligence, sect. 96. . . . ' If the servant/ says Mr. Cooley, in his

842 WILSON V. MERRY. [CHAP. VI

WILSON, Appellant v. MERRY and CUNNINGHAM,
Respondents.

House of Lords. 1868.
\_L. R. 1 H. L. Sc. 326]

After a trial which lasted four days in Januar}-, 18G7, Mrs. Wilson
recovered a verdict against Messrs. Merry & Cunningliam for the loss
of her son, who was killed vviien engaged as a miner in their employ-
ment ; — the jiuy assessing the damages at £100.

The counsel of Messrs. Merry & Cunningham took exceptions to the
judge's charge. One of these was allowed b}' the Court of Session,
whose judgment of allowance, setting aside the verdict, and granting a
new trial, formed the subject of Mrs. Wilson's appeal to the House.

The question, in a word, was whether her son's death had not been
caused by the fault or negligence of a fellow-workman, so as to free
Messrs. Merry & Cunningham from responsibility.

Mr. Quain, Q. C, Mr. StracJian and 3Ir. Junner, appeared for the
appellant.

Sir Moundell Palmer, Q. C, 3Ir. Young, and 31r. A. B. /Shand,
for the respondents.

The Lord Chancellor (Cairns). — My Lords, the respondents in
this case are coal and iron masters, owning the Haughhead coal-pit, near
Hamilton, in the county of Lanark. This pit had, prior to the 21st of
November, 1863, been sunk to the depth of ninetj-five fathoms and
contained four seams of coal. The upper seam, called the Ell coal,
had been worked out, and the respondents determined to work the next
underlying seam, called the Pyotshaw coal. In order to open this
seam from the side of the pit a scaffold was erected in the pit, from
and by means of which to drive the level in the Pyotshaw seam.
This scaffold was completed on Saturday, the 21st of November, 1863.
On the following Monday, the 23d of November, 1863, Robert Wilson

work on Torts, 559, 'having a right to abandon the service because it is dangerous,
refrains from doing so in consequence of assurances that the danger shall be re-
moved, the duty to remove the danger is manifest and imperative, and the master is
not in the exercise of ordinary care unless or until he makes his assurances good.
Moreover, the assurances remove all ground for the argument that the servant by
continuing the employment engages to assume the risks.' . . . We may add, that it
was for the jury to say whether the defect in the cow-catcher or pilot was such that
none but a reckless engineer, utterly careless of his safety, would have used the
engine without it being removed. If, under all the circumstances, and in view of the
promises to remedy the defect, the engineer was not wanting in due care in continuing
to use the engine, then the company will not be excused for the omission to supply
proper machinery, upon the ground of contributory negligence. That the engineer
knew of the alleged defect was not, under the circumstances, and as matter of law, abso-
lutely conclusive of want of due care on his part."

See the discussion in Fitzgerald v. Connecticut River Paper Co., 155 Mass. 155
(1891). — Ed.

SECT. II.] WILSON V. MERRY. 843

and Heniy Wilson, sons of the appellant, were engaged by the respon-
dents to assist in driving this level ; and on the 24th of November
the}' went to work. The system of ventilation in the pit, before the
scaffold was placed there, was of the usual kind, by downcast and up-
cast, and it is not suggested that before the platform was erected the
system of ventilation was defective in an^- particular. The platform,
however. Interrupted the free current or circulation of air in the pit ;
and although it is stated that apertures were left in the platform on the
upcast side for the return of the air from the shaft below, yet an accu-
mulation of fire-damp appears to have taken place underneath the plat-
form ; and on the 2oth of November, 1863, while Henry Wilson was
searching on the scaffold with a light for a wedge which was missing,
the light came in contact with the fire-damp coming from beneath the
scaffold, and an explosion took place, by which the scaffold was blown
up and Henrj' Wilson killed on the spot.

The present action was raised by the appellant, as the mother of
Henr}' Wilson, for damages in consequence of his death, and an issue
was appointed by the Lord Ordinary- for the trial of the cause in the
following terras : " Whether, on or about the 25th day of November,
1863, the deceased Henry Wilson, miner, Haughhead, the son of the
pursuer, while engaged in the employment of the defenders as a miner
in said pit, was killed by an explosion of fire-damp through the fault of
the defenders, to the loss, injur}-, and damage of the pursuer."

It was not suggested that the respondents themselves took an}' part
in the erection of the platform, nor was an}' personal fault or negligence
of any kind imputed to them. The general manager of their works in
Lanarkshire was Mr. Jack. The manager of the Haughhead coal pit
underneath Jack was John Neish ; and subordinate to Neisli was a
man named Bryce, who attended to the underground operations. One
Neil Robson, formerly a mining engineer, was a partner with the re-
spondents, and it was under the general direction of the respondents
and of Robson and Jack that the working of the Pyotshaw seam was
commenced. The charge of sinking the pit, and making arrangements
underground for working it, was given to Neish. It was proved at the
trial, and, indeed, not controverted, that Jack and Neish were compe-
tent persons for the work on which they w^ere engaged ; selected by
the respondents with due care ; and furnished by the respondents with
all necessary materials and resources for working in the best manner.

The cause was tried on the 2d of January, 1867, and the three fol-
lowing days, before Lord Ormidale, and a verdict found for the
appellant, assessing damages at £100. Two exceptions were taken to
Lord Ormidale's directions to the jury ; the second of which was
allowed by the Court of Session, and a new trial granted. It is on this
exception alone that your Lordsliips are now called to express an
opinion, the appellant having appealed against the interlocutor of the
Court of Session allowing the exception, which runs thus : —

" Lord Ormidale charged the jury ; and, after explaiiting that ia

844 WILSON V. MEKRY. [CHAP. VL

law the defenders were not answerable for the consequences of an
accident which could not have been foreseen, and by reasonable care
and caution prevented, or for the consequences of an accident caused
by deceased's own fault, or the fault of a fellow- workman, as Bryce
must be held to have been in the present instance, engaged with him
in the same common employment ; and after also explaining the
nature of the obligation under which employers la}' of providing all
apparatus and machiner}- necessary and proper for the safety of their
workmen, proceeded to bring under their consideration the circum-
stances relating to the ventilation arrangement or system of the pit in
question, distinguishing betwixt the keeping clear and in good work-
ing order the ventilation arrangement or system when completed, and
after the deceased came to be engaged in the pit, and defect or fault
in said arrangement or system itself. And in reference to the latter
Lord Ormidale, in the course of his charge, directed the jury, that ' if
they were satisfied on the evidence that the arrangement or system of
ventilation in the Haughhead pit at the time of the accident in question
had been designed and completed by Neish before the deceased Henry
Wilson was engaged to work in the pit, and that the defenders had
delegated to Neish their whole power, authority, and duty in regard to
that matter, and also in regard generally to all the underground oper-
ations, without control or interference on their part, the deceased
Henry Wilson and Neish did not stand in the relation of fellow-work-
men engaged in the same common employment, and the defenders were
not on that ground relieved from liability to the pursuer for the conse-
quences of fault, if any there was, on the part of Neish in designing
and completing said arrangement or system of ventilation.' "

The law applicable to cases of this kind has of late years come fre-
quently under consideration, both in this House and in various courts
of law in England and Scotland. The cases up to the year 1858 are
all reviewed in the case of the Bartonshill Coal Compan}- v. Reid, de-
cided by your Lordships.-^ . . .

1 do not think the liability, or non-liability, of the master to his
workmen can depend upon the question whether the author of the
accident is not, or is, in any technical sense, the fellow-workman, or
collahorateur^ of the sufferer. In the majority of cases in which acci-
dents have occurred the negligence has, no doubt, been the negligence
of a fellow-workman ; but the case of the fellow-workman appears to
me to be an example of the rule, and not the rule itself The rule, as
I think, must stand upon higher and broader grounds. As is said bj'
a distinguished jurist: ^'- JExempJa non restringwit reguhim, sed
loquuntur de casibus crehrioribus (Donellus de Jure Civ. L. 9, c. 2,
n). The master is not, and cannot be, liable to his servant unless
there be negligence on the part of the master in that in which he, the
master, has contracted or undertaken with his servant to do. The

1 Here were read quotations from Lord Cranworth's opinion in Bartonshill Coal
Company v. Reid, 3 Macq. 266, 282-284. — Ed.

SECT. II.] WILSON V. MERRY. 845

master has uot contracted or undertaken to execute in person the work
connected with his business. The result of an obligation on the mas-
ter personally to execute the work connected with his business, in
place of being beneficial, might be disastrous to his servants, for the
master might be incompetent personally to perform the work. At all
events, a servant maj' choose for himself between serving a master
who does, and a master who does not, attend in person to his business.
But what the master is, in mj^ opinion, bound to his servant to do, in
the event of his not personally superintending and directing the work,
is to select proper and competent persons to do so, and to furnish them
with adequate materials and resources for the work. When he has
done this he has, in m\- opinion, done all that he is bound to do. And
if the persons so selected are guilty of negligence, this is not the negli-
gence of the master ; and if an accident occurs to a workman to-cla}'
in consequence of the negligence of another workman, skilful and com-
petent, who was formerly, but is no longer in the employment of the
master, the master is, in mv opinion, not liable, although the two work-
men cannot technicall}- be described as fellow-workmen. As was said
in the case of Tarrant v. Webb, negligence cannot exist if the master
does his best to employ* competent persons ; he cannot warrant the
competency of his servants.

Applying these observations to the direction of the learned judge to
the jury in this case, I think the first error in that direction is, that it
is pregnant with the suggestion to the jury that if they found the scaf-
fold to have been finished bj- Neish before the deceased was engaged
to work in the pit, a liability for the accident was thrown upon the re-
spondents, which would not have existed if the deceased had been
engaged before the scaffold was finished. This, my Lords, was calcu-
lated, as I think, to mislead, and appears to have misled the jury.

But, my Lords, I think there is another objection to the charge of
the learned judge. He asks the jury to consider whether the respon-
dents had delegated to Neish their whole power, authority, and duty
in regard to the arrangement or system of ventilation, and also in re-
gard generally to all the underground operations, without control or
interference on their part.

My Lords, I think there is nothing in the evidence which would war-
rant a question being left to the jury in these terms. The respondents
had delegated no power, authority, or duty to Neish, except in the
sense in which a master who employs a skilled workman to superintend
a portion of his business delegates power, authorit}-, and duty to the
workman for that purpose. It was admitted that the respondents gave
no specific directions to Neish as to the manner or form in which the
scaffold was to be arranged. They told him that the Pyotshaw seam
was to be opened, and they left to him the arrangements underground
for opening and working it. And the learned judge ought not, as I
think, to have suggested to the jur}' that this could be viewed in any
other light than as the ordinary employment by the respondents of a

846 WILSON V. MERRY, [CHAP. VL

sub-manager or foreman. I think the learned judge ought to have
told the jury that if the}' were of opinion that the respondents exer-
cised due care in selecting proper and competent persons for the work,
and furnished them with suitable means and resources to accomi)lish
the work, the respondents were not liable to the appellant for the con-
sequences of the accident.^ . . .

Lord Cranworth. My Lords, the direction of the learned judge
complained of has been so fully stated by vay noble and learned friend
that I need not repeat it at length. The substance of it was, that if
the system of ventilation had been completed by Neish before "Wilson
was engaged to work in the pit, and if the owners had delegated to him
all their power and authorit}' as to the underground operations, then
he and Wilson were not fellow-workmen. This was clearly wrong.
Workmen do not cease to be fellow-workmen because the}' are not all
equal in point of station or authority. A gang of laborers employed in
making an excavation and their captain, whose directions the laborers
are bound to follow, are all fellow-laborers under a common master, as
has been more than once decided in England, and on this subject there
is no difference between the laws of England and Scotland. Nor does
it make any difference that the scaffolding, the impei'fection of which
is assumed to have caused the accident, had been all set up by Neish
before Wilson began to be employed. In order effectually to carry on
the work, it was necessary that a scaffolding should be fixed under the
superintendence of an underground manager, and when so fixed it was
necessary that workmen should be employed at it in excavating the
mine under similar superintendence. That Neish was a person compe
tent to perform the duties of such underground manager was not a
matter in dispute. He caused the scaffold to be prepared and fixed,
and when that had been done Wilson began to work under him as
manager. They thus clearly became fellow- workmen, and the circum-
stance that a part of the duties of Neish had been completed before
Wilson began to work cannot be material. If, indeed, the owners had
failed to take reasonable care in causing the scaffold to be erected, the
case would have been difl'erent, but of this there is no evidence. It
certainly was not incumbent on them personally to fix the scaffold.
They discharged their duty when they procured the services of a com-
petent underground manager ; and whether Wilson began to work
with, or under, Neish before or after he had prepared the scaffold was
a matter of no importance. From the time when he began to work he
was a fellow-workman with him. The direction given by the learned
judge at the trial was certainly wrong, and the interlocutor granting a
new trial was therefore right.

It is not necessary that we should say what direction the learned
judge ought to have given, but I have no difficulty in saying that he
ought to have charged the jury to the effect that Neish and the de-

1 Here followed a passage pointing out that no question had been presented, under
23 & 24 Vict. c. 151, " An Act for the Regulation and Inspection of Mines." — Ed.

SECT. II.] WILSON V. MERRY. 847

ceased were, according to the evidence, fellow- workmen, and that the
defenders were not liable if the}', the jury, were of opinion that Neish
was a properly skilled workman to act as underground manager,
even if there were defects in the scaffolding which caused the acci-
dent.^ . . .

Lord Chelmsford.^ Although the learned judge, in the course of
his summing up, distinguished " between keeping clear and in good
working order the ventilation arrangement or system when completed,
and a defect or fault in the arrangement or sj'stem itself," yet he does
not appear to have left it to the jury to decide whether the accident
occurred through faulty ventilation or through casual obstruction in the
ventilation, the latter of which appears from the evidence to be more
likely to have been the case. But, supposing it to have been quite
clear that the ventilation itself was defective, 3et, if it occurred in the
course of the operations in the pit, it ought to have been distinguished
from that " system of ventilation and putting the mine into a safe and
proper condition for working," which, according to the opinion of the
Lord Justice Clerk, in Dixon v. Ranken, 14 Dunlop, 420, "it was the
duty of the master for whose benefit the work is being carried on to
provide." In the course of working the Haughhead pit it became neces-
sar}' to arrange a system of what, for distinction's sake, I may call
local ventilation. This must be considered as part of the mining oper-
ations, and, therefore, even if the accident happened in consequence of
the scaffold in the P3'otshaw seam having, under Neish's orders, been
constructed so as to obstruct the uecessar}' ventilation, it would have
been the result of negligence in the course of working the mine ; and if
Neish and the deceased were fellow-workmen, it would have been one
of the risks incident to the employment in which the deceased was
engaged.^ . . .

Lord CoLONSAY.^ I hold it to be quite clear that the liability of a
master for injury done by the fault or negligence of his servant falls
to be dealt with on different principles where the sufferer is a stranger,
and where the sufferer is a fellow-servant engaged in the same common
employment. The distinction was fully recognized Iw Lord Cran-
worth, and effect was given to it by this House, in the case of the
Bartonshill Company. Whether the present case does or does not be-
long to the latter class, it certainly does not belong to the former class.
The deceased was not a stranger; he was, at the time he received the
injury, a workman in the employment of the defenders, in their coal
mine. Neish was also in their employment there. If it is not alleged
that there was any personal fault or neglect on the part of the master,
on what principle does liability attach to him ? Does such liability flow
from the nature of the contract of service under which the deceased

1 Here followed a passage declining to discuss 23 & 24 Vict. 151. — Ed.

* After explaining that the only question was as to the second exception. — Ed.
8 Here followed a discussion of the charge and of 23 & 24 Vict. c. 151. — Ed.

* After .stating the facts and the question. — Ed.

848 WILSON V. MERRY. [CHAP, VI.

was working? I think that there are duties incumbent on masters
with reference to the safety of laborers in mines and factories, on the
fulfihnent of which the laborers are entitled to rely, and for the failure
in which the master ma\- be responsible. A total neglect to provide
any S3'stem of ventilation for the mine may be of that character. Cul-
pable negligence in supervision, if the master takes the supervision on
himself; — or, where he devolves it on others, the heedless selection
of unskilful or incompetent persons for the duty, — or the failure to
provide or supply the means of providing proper machinery or mater-
ials ; — may furnish grounds of liabilit}- ; and there may be other
duties, var3'ing according to the nature of the employment, wherein, if
the master fails, he ma}- be responsible. But, on the other hand, there
are risks incident to occupations more or less hazardous, and of which
the laborer who engages in anj' such occupation takes his chance. It
is eminently so in regard to mining operations. There are perils of
the pit as well as of the other deep, and one of those perils is the risk
of the consequences that may, even in the best regulated pits, result
from the carelessness or recklessness, or other fault, of one or more of
those persons composing the organized bod}' engaged in working the
mine. The master does not impliedlj' insure the workmen against such
perils.

Is the fault attributed to Neish one of this last character? I think
it must be so regarded, unless there was something in the relation
of Neish to the defenders, or to the deceased, which deprives it of that
character. It is not alleged that the general s3-stera of ventilation of
the pit, as it had existed anterior to the erection of the scaffold, was
not good, or that Neish was not a fit man to be placed in the position
he occupied. In neither of the respects was there any fault or negli-
gence on the part of the defenders ; nor is it alleged that in any other
respect there was personal fault on their part. But it is said that
Neish was not a fellow- workman of the deceased — ■ that he was in some
sense and to some effect a representative of the defenders, holding del-
egated powers from them, and that they are therefore liable.

Now I agree with what has been said as to the terms " fellow-work-
man " and " collahorateur." The}- are not expressions well suited to
indicate the relation on which the liability or non-liability of a master
depends, especially with reference to the great systems of organization
that now exist. And these expressions, if taken in a strict or limited
sense, are calculated to mislead. The same may be said of such words
as "foreman" or "manager." We must look to the functions the
party discharges, and his position in the organism of the force employed,
and of which he forms a constituent part. Nor is it of any consequence
that the position he occupies in such organism implies some special
authority, or duty, or charge, for that is of the essence of such organi-
zations, as, for instance, in this case, Br^'ce is admitted to have been
within the principle of a fellow-workman, although he was foreman and
underground manager, and had the immediate charge of constructing the

SECT. II.] WILSON V. MERRY. g49

scaffold, and was primarily to blame for its defects, if any ; Neish was
one step higher, and may have been in fault for not detecting Bryce's
error ; but 3'et Neish was subordinate to a still higlier servant, Jack.
They were all links in the same chain. If the master was responsible
for injury done to Wilson through the fault of Neish, on tlie ground
that, strictly speaking, they were not fellow-laborers, he would, on the
same ground, have been liable to Neish for injury done to him through
the fault of Wilson.

Now the direction of the learned Judge with reference to the circum-
stances of this case appears to me to have been objectionable for these
reasons : First, It deals, apparently, with tlie alleged defect in the
scaffold as if it was a defect in the general arrangement or system of
ventilation of the pit, for which in certain views the defenders might
be regarded as liable, whereas it was a defect in the construction of a
temporary structure erected by order of Neish for certain working
operations, whereb}' the free action of a good system of ventilation was
temporarily interfered with, which raised a totally different question for
the consideration of the jury in reference to the liability of the defend-
ers for the fault of Neish. But the distinction does not appear to
have been adverted to. Secondly, It suggests to the jury that if the
faulty scaflbld was completed before Wilson entered into the employ of
the defenders, a liability was imposed on the defenders which would
not otherwise have existed, inasmuch as in that case Wilson and Neish
could in no view have been fellow-workmen at the time when the fault
was committed by Neish. But if it was the duty of Neish to provide
for the passage of air upwards in the shaft, that duty did not cease
with tlie erection of the scaffold, but continued while the scaffold re-
mained, and he was in fault so long as that duty was not performed.
It was not merel}' the erection of the scaffold on Saturday, but the
maintenance of it in a defective state until Tuesday morning, that
caused the injury, if it was really caused b}' the defective construction
of the scaffold ; and consequently there was no room for the suggested
disconnection of Wilson and Neish as fellow-workmen. Thirdly-, The
direction points the attention of the jury to the question, whether Wil-
son and Neish stood in the relation of fellow-workmen engaged in the
same common employment, as the test of non-liability, without sufficient
explanation of what constituted that relation ; and, in particular, with-
out explaining that diversity of duties and gradation of authority are
not inconsistent with that relation, and without referring to the effect
which might be produced on the liability of the master by a careful
selection of proper persons to take charge of different departments in
the working of the mine.-' . . .

Interlocutor affirmed^ and appQcd dismissed loith costs.^

^ Here followed a passage declining to express an opinion as to 23 & 24 Vict.
c. 151. — Ed.

"^ For dicta suggesting a distinction based on the relative rank of servants, see Bar-
tonshill Coal Co. v. Reid, 3 Macq. 266, 295 (1858), jier Lord Ckanwokth ; Clarke v.

850 FORD V. FITCHBUKG KAILROAD CO. [CHAP. VL

FORD V. FITCHBURG RAILROAD COMPANY.
Supreme Judicial Court of Massachusetts, 1872.

[no Mass. 240.]

Tort to recover for personal injuries occasioned M' the explosion of
the boiler of a locomotive engine belonging to the defendants. Trial in
the Superior Court, before Scuddek, J.^ . . .

The judge instructed the jury as follows: "A person entering into
the service of another takes upon himself, in consideration of the com-
pensation to be paid him, the ordinaiy risks of the emploj'ment, including
the negligence of his fellow-laborers." "The general rule is, that he
who engages in the employment of another, for the performance of
specific duties and services, for compensation, takes upon himself the
natural and ordinary risks and perils incident to the performance of
such services, embracing perils arising from the negligence of those in
the same employ as incident to the service." " When a master uses due
diligence in the selection of competent and trustworthy servants, and
furnishes them with suitable means to perform the service in which he
employs them, he is not answerable to one of them for an injury received
by him in consequence of the carelessness of another, while both are
engaged in the same service." " A corporation is required to use due
care in supplying and maintaining suitable instrumentalities for the
performance of the work or dut}' which it requires of its servants, and
is liable for damages occasioned by neglect or omission to fulfil this
obligation, whether it arises from its own want of care, or that of its
agents intrusted with the dut}-. But the law does not hold it responsible
for the negligence of its servants, if of competent skill and experience,
in using or managing the means and appliances placed in their hands in
the course of their employment, if they are neither defective nor insufl3-
cient." "The rules of law are well settled, that a servant, by entering
into his master's service, assumes all the risks of that service, which the
master, exercising due care, cannot control, including those arising
from the negligence of his fellow-servants ; but that the master is bound
to use ordinar}' care in providing suitable structures and engines and
proper servants, to carr}' on his business, and is liable to any of their
fellow-servants for his negligence in this respect. This care he can and
must exercise, both in procuring and in keeping and maintaining such
servants, structures, and engines. If he knows, or in the exercise of

Holmes, ante, pp. 836, 841, per Byles, J.; Gallagher v. Piper, 16 C. B. n. s. 669, 697
(1864), per Byles, J., dissenting; and Murphy v. Smith, 1'9 C. B. n. s. 361, 366-368
(1865), per Erle, C J., and Keating, J.

See Devlin v. Smith, 89 N. Y. 470 (1882) ; Butler v. Locke, 126 N. Y. 105 (1891).—
Ed.

1 The' report has been abbreviated by omitting the evidence, the instructions
requested by the defendant corporation, and so much of the opinion as dealt with
those instructions. — Ed.

SECT. II,] FORD V. FITCIIBURG RAILROAD CO. 851

due care might have known, that his servants are incompetent, or his
structures or engines insufficient, either at the time of procuring them
or at any subsequent time, he fails in his duty. For the management of
his machinery and the conduct of his servants, he is not responsible to
their fellow-servants ; but he cannot avail himself of this exemption from
responsibilit}', when his own negligence in not having suitable instru-
ments, whether persons or things, to do his work, causes injury to those
in his employ. lie cannot divest himself of his dut}', to have suitable
instruments of any kind, b}' delegating to an agent their employment or
selection, their superintendence or repair. A corporation must, and a
master who has an extensive business often does, perform this dut}'
through officers or superintendents ; but the duty is his and not merely
theirs, and for negligence of his duty in this respect he is responsil)le.
To hold otherwise would be to exempt a master, who selected all his
machinery and servants through agents or superintendents, from all
liability whatever to their fellow-servants, although he had been grossly
negligent in the selection or keeping of proper persons and means for
conducting his business."

"The obligation of a corporation, so far as respects those in its
employment, does not extend beyond the use of ordinary care and dili-
gence. B}- ordinar}' care and diligence is meant such as men of ordinary
sense, prudence, and capacit}', under like circumstances, take in the
conduct and management of their own affairs. This varies according
to circumstances as the risk is greater or less, and must be measured
by the character and risks and exposures of the business."

Applying the law as stated to the present case, the judge instructed
the jur}- that " the exercise of ordinary diligence and care was required
on the part of the defendants, and their proper officers and agents, in
providing a suitable engine to lie used by the plaintiff upon their road,
and in keeping the engine in proper condition for such use ; that the
plaintiff was also required to exercise ordinary- diligence and care in the
use of the engine and in avoiding danger therefrom ; that if neither
party was in fault the plaintiff could not recover; that if the injury
complained of was occasioned by the fault or negligence of both parties,
the plaintiff was not entitled to recover ; that if the defendants, acting
by their proper officers and servants, exercised ordinary diligence and
care in providing a suitable engine and in keeping the same in proper
condition and repair, for the use to which it was appropriated, the}-
were not responsible for the injury complained of; but that if they failed
so to do, and the injury complained of resulted from their neglect in this
respect, then the defendants were responsible therefor, unless it ap-
peared that the plaintiff himself was also wanting in the exercise of
ordinary vigilance and care, either in the management of the engine or
in improperly exposing himself to danger therefrom, thereby rendering
himself guiltv of contributory negligence, in which latter case he was
not entitled to recover ; that the burden was upon the plaintiff to show,
not only that the defendants were guilty of negligence in not exercising

852 FORD V. FITCHBURG RAILROAD CO. [CHAP. VL

ordinal'}' diligence and care in providing a suitable engine and keeping
it in proper condition, thereb}' causing the injury complained of, but
tliat he was himself free from any negligence contributing to the injury ;
that Rule 28 did not, as a matter of law, release the defendants from
their legal responsibility in this case, if any such existed, for the internal
and invisible defects in the boiler, by which it was claimed the explosion
was occasioned ; and that the violation of Rule 42, ^ far as it stated it
to be the duty of the plaintiff to be sure that the engine was in good
working order before it was taken from the engine-house, did not, as
matter of law, necessaril}' preclude him from recovering in this case, if
otherwise entitled, unless the accident or injury complained of was
occasioned in whole or in part by such violation."

The jury returned a verdict for the plaintiff, and the defendants
alleged exceptions.

If. B. /Staples and I^. P. Goidding, for the defendants.

G. A. Torrey, for the plaintiff.

Colt, J. This action is founded on the alleged negligence of the
defendant corporation in failing to provide and keep in repair a safe
and suitable engine to be run by the plaintiff in hisemploj-ment as loco-
motive engineer upon its road. The law applicable to cases of this
description, and which deiines the rights and duties that belong to the
relation of master and servant, is plainly stated in the recent decisions
of this court. The principles are discussed and the cases sufflcientl}'
reviewed in Coombs v. New Bedford Cordage Co. 102 Mass. 572, and
in Oilman v. Eastern Railroad Co. 10 Allen, 233, and 13 Allen, 433,
and Huddleston v. Lowell Machine Shop, lOG Mass. 282.

Upon a careful consideration of the evidence and the instructions
given, we find no error in law for which this verdict should be set aside.
The legal principles which govern the case were aecuratelj' stated. They
were well adapted to the whole evidence in its different aspects, and
they were all that the case required. The jury, who are presumed to
have been controlled b}- these instructions and the evidence before
them, must have found, in arriving at their verdict, that the defendant
corporation, b}' its agents, intrusted with that duty, did not exercise
ordinary' care and diligence, in suppl3'ing and maintaining an engine,
safe to be used for motive power upon their road, in the performance of
that part of the plaintiff's work in which he was engaged at the time ;
that this neglect was the cause of the injury ; and that the plaintiff was
himself in the exercise of ordinary' care and diligence, in the use of the
engine, and in avoiding danger therefrom. They must have further
found, that the plaintiff did not know, or have reasonable cause to
believe, that the engine was unsafe at the time of the explosion, and
also that the injury' was not, in whole or in part, caused bj- an}- vio-
lation of the terms of his contract of employment,- as expressed in the
rules of the road assented to by him.

This establishes the defendant's liability. It is enough that there
was evidence in support of these several findings, suflScieut to justify

SECT. II.] FLIKE V. BOSTON AND ALBANY RAILROAD CO. 853

each. It is not a question of tlie weight of evidence, or whether the
verdict ought not to be set aside on a motion for a new trial. When
the question is raised by exceptions, the only inquiry is, whether there
is any evidence proper to submit to the jury as having a tendency to
support the legal propositions which charge the defendant with liability.
Forsyth v. Hooper, 11 Allen, 419.

The rule of law which exempts the master from responsibility to the
servant for injuries received from the ordinary risks of his employment,
including the negligence of his fellow-servants, does not excuse the
employer from the exercise of ordinary care in supplying and maintain-
ing suitable instrumentalities for the performance of the work required.
One who enters the employment of another has a right to count on this
duty, and is not required to assume the risks of the master's negligence
in this respect. The fact that it is a duty which must always be dis-
charged, when the emplo3er is a corporation, by officers and agents,
does not relieve the corporation from the obligation. The agents who
are charged with the duty of supplying safe machinery are not, in the
true sense of the rule relied on, to be regarded as fellow-servants of
those who are engaged in operating it. They are charged with the
master's duty to his servant. They are employed in distinct and inde-
pendent departments of service, and there is no difficulty in distinguish-
ing them, even when the same person renders service by turns in each,
as the convenience of the employer may require. In one the master
cannot escape the consequence of the agent's negligence ; if the servant
is injured in the other he may. . . . Exce'ptions overruled.

FUKE, Administrator, Respondent, v. THE BOSTON AND
ALBANY RAILROAD CO., Appellant.

Court of Appeals of New York. 1873.

[53 N. Y. 549.]

Appeal from order of the General Term of the Supreme Court In
the third judicial department, denying a motion for a new trial and
ordering judgment for plaintiff on a verdict.

This action was brought to recover damages for the death of Henry
Sipperly, plaintifl["'s intestate, alleged to have been caused by defen-
dant's negligence. Sipperly was killed on the 3d of February, 1870.
The circumstances of his death are sufficiently stated in the opinion.

A verdict was rendered in favor of plaintiff.

Exceptions were ordered to be heard at first instance at General Term.

Geo. W. Miller for the appellant.

Matthew Hale for the respondent.

Church, C. J. The plaintiffs intestate was a fireman upon a freight
train upon defendant's road, which left Albany at an early hour on a
cold day. Some miles east of Albany eleven cars of another freight
train, a short distance in advance, became accidentally detached and

|54

FLIKE V. BOSTON AND ALBANY KAILROAD CO. [cHAP. YL

ran back and collided vvilh the train on which the deceased was em-
ployed, b}- means of which he was killed. The evidence tended to
show that the forward train was deficient in brakemen ; that but two
were aboard, when there should have been three, which was the usual
number ; and that if a third brakeman had been there he would have
been stationed upon the eleven runaway cars, and with the brakeman
on them could have controlled their impetus and prevented the acci-
dent. The company had at Albany an agent, called a head conductor,
whose business it was to make up the morning trains, hire and station
the brakemen, and generally to prepare and despatch these trains.

The general rule that the employer is not liable to one servant or
laborer for an injury resulting from the carelessness or negligence of
another servant or co-laborer, has been recently so fully considered
by this court in the two cases of Laning v. N. Y. C. R. R. Co. (49
N. Y. 521) and Brkkner v. The Sa7ne (49 id. 672), that discussion is
unnecessary except as far as may be pertinent to determine its
application to the facts of this case. This doctrine was first
promulgated in England in 1837 '(3 M. «fe W. 1), in South Carolina in
1841 (1 McMullan, 385), and in Massachusetts in 1842 (4 Met. 49),
and has been adopted in this and most of the other States in the Union.
There has been a diversity- of reasons given for its adoption, which
have led to some confusion in its application. The reasons for the
rule are well stated b}' Pratt, J., in the first case in which it was applied
in this State (6 Barb. 231), and were in substance that the rule
resjiondeat svperior does not itself spring directh' from principles of
natural justice and equity, but has been established upon principles
of expediency and public polic}' for the protection of the communit}' ;
and that, in view of the unjust consequences which ma}' ensue from its
application for injuries by co-servants, the same principles of public
policy demand its limitation, and that while the general rule was de-
manded for the protection of the community, the exception is demanded
for the protection of the employer, especiall}- in view of the manner in
which the principal business of the country is now transacted. This
view evinces the flexibilitv of the principles of the common law, which
are capable of adaptation to new or changed circumstances, and enables
courts to adjust the application of the principle not in obedience to a
supposed arbitrary rule, but with such limitations and qualifications as
best accord with reason and justice. In applying the rule we should be
cautious not to violate the ver}' principles upon which it is founded.
"While shielding the employer from unjust and burdensome liabilities,
we should not withhold all redress from the emploj'ed for remissness
and carelessness in respect to duties which fairlj' devolve upon the for-
mer as the principal, and over which the latter have no control.^ . . .

The master is liable if his own negligence or want of care produces
the injury, and this may be manifested l)y employing unfit servants or
agents, or furnishing improper or unsafe machinerv, implements, facili-

' Here was quoted the passage from Hutchinson v. York, Newcastle, & Berwick R>
Co., ante, p. 828, n. (1). —Ed.

SECT. II.] FLIKE V. BOSTON AND ALBANY RAILROAD CO. 855

ties, or materials for the use of the servant (25 N. Y. 562 ; 39 id
468). It was at first doubted by this court whether the exemption
should not be limited to injuries by servants whose emplo3'ment was
the same (1 Seld. 492, per Gardiner, J.) ; but it has since been
repeatedlj" held that injuries by servants or agents, engaged in the same
general business or enterprise, are within the exemption (Id.). Hence
the difficulty of applying the rule in actions against corporations whose
whole business can only be transacted b}" agents who are in some sense
co-servants. In 39 N. Y., supra ^ the court decided that a corporation
was lial)le if negligence causing an injury- to a subordinate servant
could be imputed to the directors, but did not establish any definite
rule on the subject. Tlie true rule, I apprehend, is to hold the cor-
poration liable for negligence or want of proper care in respect to such
acts and duties as it is required to perform and discharge as master or
principal, without regard to the rank or title of the agent intrusted
with their performance. As to such acts, the agent occupies the place
of the corporation, and the latter should be deemed present, and con-
sequently liable for the manner in which the^' are performed. If an
agent employs unfit servants, his fault is that of the corporation, be-
cause it occurred in the performance of the principal's dut}-, although
onU' an agent himself. So in providing machinery' or materials, and in
the general arrangement and management of the business, he is in the
discharge of the duty pertaining to the principal.

In the case before us it was clearl}- the dut}- of the corporation, in
making up and despatching the advance train, to suppl}' it with suitable
machiner}' and sufficient help for the business and journe}' which it was
about to undertake ; and if there was any want of care in these respects,
which caused the injur}-, it is liable. Rockefeller had the general
charge of this business, and, within the principle decided in the Laning
case, represented the corporation itself

It is claimed, by the counsel for the appellant, that the company* are
not liable, because the agent had, in fact, emplo3-ed a third brakeman
to go upon this train, who, b}- reason of oversleeping, failed to get
aboard in time, and hence, that the injury must be attributed to his
negligence, or, if attributable to the negligence of the general agent in
not supplying his place with another man, such negligence must be re-
garded as committed while acting in the capacity of a mere co-servant,
within the doctrine of irresponsibility. Neither of these positions is
tenable. The hiring of a third brakeman was only one of the steps
proper to be taken to discharge the principal's dut}-, which was to
supply with sufficient help and machinery, and properl}' despatch the
train in question, and this duty remained to be performed, although
the hired brakeman failed to wake up in time, or was sick, or failed to
appear for any other reason. It was negligent for the company to
start the train without sufficient help. The acts of Rockefeller cannot
be divided up, and a part of them regarded as those of the company,
and the other part as those of a co-servant merely, for the obvious rea-
son that all his acts constituted but a single dut}'. His acts are iudivi-

856 FLIKE V. BOSTON AND ALBANY RAILKOAD CO. [CHAP. VL

sible, and the attempt to create a distinction in their character would
involve a refinement in favor of corporate imnuinit}' not warranted by
reason or authority. As well might the company be relieved if the
train was started without an engineer, or without brakes, or with a
defective engine. The same duty rested upon the company, thougli
every man employed had died or run away during the night, and if
negligent in discharging it, either by acts of commission or omission,
whether in employing improper help, or not enough of it, or in not re-
quiring their presence upon the train, it is, upon every just principle,
responsible for the consequences. Nor is the company relieved,
although negligence may be imputed to the defaulting brakeman. The
only effect of that circumstance would be to make the negligence con-
tributory with the brakeman, but would not affect the liability of the
company. It is unnecessary, therefore, to inquire whether the sleeping
brakeman was so engaged in the common service as that the defendants
could be exempted from liability if the injury was solely attributable
to bis neglect.

Assuming that the facts are, as the jury must have found, the liability
of the company is clear. These heav^' freight trains were despatched
only five minutes apart, and traversed a very heavy grade, and were
liable, especially in cold weather, to precisel}- such accidents as did
occur, in which event collisions, with fatal results, were almost certain
to ensue. The principal protection in such cases is the prompt and
efficient application of the brakes, and the utmost care should be exer-
cised in providing a sufficient number of reliable men to perform this
duty. If we were called upon to spell out a contract between the par-
ties, it would be implied that the company agreed to use proper care
not to expose the deceased to risks of this character. He was engaged
upon another train in the discharge of his dut}-, and was not only in no
way connected with the broken train, but he could neither know of nor
provide against the defect.

No authority has been cited which would justify us in relieving the
defendant from this liability, nor have I been al)le to find any. In 3
Cush. 270, the Supreme Court of Massachusetts intimate, although it
was unnecessar}' to decide, that a railroad company is liable for an in-
jur}' to an employe, caused by a deficiency of help upon another train.

Mr. Redfield, in a note in a recent edition of his work on Railways,
expresses the opinion that corporations should be regarded as con-
structively present in all acts performed b}' their general agents, within
the range of tiieir employment ; and the tendenc}' of judicial opinion,
while it adheres to the general rule of irresponsibility, is against
extending it.

The judgment must be affirmed.

Peckham, Andrews, and Rapallo, JJ., concur.

Allen, Grover, and Folger, JJ., dissent.

Judgment affirmed.^

* Compare Michigan Central Raihroad Co. v. Dolan, 32 Mich. 510 (1875). —Ed.

SECT. II.] CORCORAN V. HOLBROOK. 857

CORCORAN, Appellant, v. HOLBROOK et al., Respondents.

Court of Appeals of New York. 1875.

[59 .V. y. 517.]

Appeal from an order of the General Term of the Supreme Court,
in the third judicial department, reversing a judgment in favor of
plaintiff, entered upon the report of a referee, and granting a new trial.

This action was brought to recover damages, for injuries sustained
b}' plaintiff in consequence of the fall of an elevator in defendants' mill,
in which plaintiff was an emploj'ee.

The referee found the following fiicts : That defendants were copart-
ners in the business of operating a cotton mill, located in the cit}- of
Tro}- ; they were also doing business as merchants in New York city,
where they resided ; they gave no personal attention to the conducting
of the mill, but it was managed by a general agent, having general
charge thereof, its machinery and operations, with power to purchase
supplies, etc. In the mill was an elevator, elevated and lowered by a
chain passing over a drum in the garret. The elevator was designed
for elevating goods, but for many years the superintendents, bosses,
and employees had been accustomed to ride thereon, from one floor to
another, while engaged in their work, to the knowledge of the superioi-s
and bosses. Plaintiff was an emplo\-ee in the mill, and had been accus-
tomed so to ride. Some of the links of the chain had worn thin, and
thereby rendered the elevator dangerous and unsafe. This had been
known b}' the agent for three weeks prior to the accident in question,
and he was notified that, if the chain was not repaired, some of the
employees would get hurt. Plaintiff had no knowledge of the defect.
On the 17th of February, 1870, and while at work in the mill, plaintiff
was sent to a room above that where she worked. She took the ele-
vator, and while ascending the chain broke, the elevator fell, and she
was injured.

As conclusions of law, the referee found that notice to the general
agent was notice to the defendants, who were chargeable with his
negligence ; that plaintiff was not guilty of any contributory negligence,
and that defendants were liable for the damages sustained by plaintiff.

R. A. Pariaentei\ for the appellant.

Trning Broione, for the respondents.

Rapallo, J. The reversal of the judgment entered upon the report
of the referee was upon questions of law only. The facts found by the
referee must therefore be taken as established. From these findings it
appears that for upward of thirty years the elevator in (luestion had
been customarily used by the sui)erintendents, bosses, and employees
of the mill for the purpose of riding from one floor to another of the
mill while engaged in work there, and this to the knowledge of their

858 CORCORAN V. HOLBROOK. I_CHAP. VI.

superiors and bosses, and that the plaintiff had been accustomed so to
ride. The right of the plaintiff to use the elevator to pass to the upper
floor is conceded in the opinion of the Supreme Court, and the conclu-
sion of the referee that she was not guilty of any negligence in so doing
is undisturbed. The sole ground of reversal was that the defendants
were not liable for the negligence of their general agent in omitting to
repair the broken chain, after notice to him that it was unsafe, and that
unless repaired some of the employees would get hurt.

The defendants, who operated the mill at the time of the injur}-,
gave no personal attention to conducting the mill, but it was managed
b}- a general agent, who had general charge of the mill, machinery, and
operatives, with power to purchase all supplies and hire and discharge
operatives.

It is evident that this general agent was not a mere fellow-servant of
the plaintiff, who was a common hand in the mill, but that he was
charged with the performance of the duties which the defendants owed
to the hands emplo3-ed in the mill. There was no other person to
discharge those duties, and the defendant^ could not, by absenting
themselves from the mill and refraining from giving any personal atten-
tion to its conduct, but committing the entire charge of it to an agent,
exonerate themselves from those duties, or from the consequences of a
failure to perform them.

It was the dut}' of the defendants toward their emploj'ees to keep the
elevator in a safe condition, and to repair any injury to it which would
endanger the lives or limbs of their employees who were lawfull}' and
properl}' and in the performance of their functions in the habit of using
it. That dut}' they delegated to their general agent. As to acts which
a master or principal is bound as such to perform toward his employees,
if he delegates the performance of them to an agent, the agent occupies
the place of the master, and the latter is deemed present, and liable for
the manner in which they are performed. (Flike u. Boston & Albany
R. R. Co., 53 N. Y. 549.) This rule is as applicable to individuals as
to corporations, and requires us to sustain the conclusion of the referee,
that the defendants were responsible for the neglect of their general
agent, he having the means and power, to keep the elevator in repair,
and that notice to such general agent was notice to the defendants that
the elevator was out of repair, and the defendants were consequently
guilt}^ of gross negligence in omitting to repair it.

The order of the General Term should be reversed, and the judgment
entered upon the report of the referee affirmed with costs.

All concur.

Order reversed and judgment accordingly.

SECT. II.] CRISPIN V. BABBITT. 859

CRISPIN, Respondent, v. BABBITT, Appellant.

Court of Appeals of New York. 1880.

[81 N.Y. 516.]

Appeal from judgment of the General Term of the Supreme Court,
in the fourth judicial department, atlirming a judgment in favor of
plaintiff, entered upon a verdict, and affirming an order denying a
motion for a new trial.

This action was brought to recover damages for injuries alleged to
have been sustained by defendant's negligence.

At the time of the accident, plaintiff was working as a laborer in the
iron works of the defendant, at Whitesboro, Oneida Count}-. Plaintiff
had assisted to draw a boat into a dry dock connected with the works ;
after the boat was in the dr}- dock, it became necessary to pump out
the water ; this was done by means of a pump, worked b}- an engine
While plaintiff, with others, was engaged in lifting the fl}- wheel of the
engine off its centre, one John L. Babl)itt carelessly' let the steam on
and started the wheel, throwing the plaintiff on to the gearing wheels,
and thus occasioning the injuries complained of. Defendant lived in
the city of Xew York, coming about once a month, for a day or two, to
the iron works, of which, as the evidence tended to show, said Babbitt
had general charge ; being at one time the general superintendent and
manager, at another time styled the " business and financial man."
The substance of the evidence, as to the position occupied by Babbitt,
and the particulars as to the accident, are fully set forth in the dissent-
ing opinion of Earl, J. The defendant's counsel requested the court
to charge, among other things, as follows : —

" 13th. That although John L. Babbitt may, as financial agent or
superintendent, or overseer or manager, have represented defendant
and stood in his place, he did so only in respect of those duties which
the defendant had confided to him as such agent, superintendent, over-
seer, or manager."

The court so charged.

" 14th. That as to any other acts or duties performed by him in or
about the defendant's works at Whitesboro, or in or about the defend-
ant's business at said works, he is not to be regarded as defendant's repre-
sentative, standing in his place, but as an emploj-ee or servant of the
defendant, and as a fellow-servant of the plaintiff."

The court refused so to charge, saying: "I will leave that as a
question of fact for the jury."

" 17th. That if John L. Babbitt did let on the steam while plaintiff
was engaged at the wheel, he was not, in so doing, acting in the
defendant's place, but his act in so doing was his own act, and not the
act of the defendant."

The court refused so to charge, leaving this also for the jury.

860 CKISPIN V. BABBITT. [CHAP. VI.

To the refusals to charge, defendant's counsel duly excepted.

A. J. Vanderpool, for appellant.

N. E. Kernan, for respondent.

Rapallo, J. The liability of a master to his servant for injuries sus-
tained while in his employ, b}^ the wrongful or negligent act of another
employee of the same master, does not depend upon the doclrine of
respondeat superior.

If the emplo^'ee whose negligence causes the injury is a fellow-
servant of the one injured, the doctrine does not apply. (Conway v.
Belfast, etc. Ry. Co., 11 Irish, C. L. 353.)

A servant assumes all risk of injuries incident to and occurring
in the course of his employment, except such as are the result of the
act of the master himself, or of a breach by the master of some term,
either express or implied, of the contract of service, or of the duty of
the master to his servant, viz. : to employ competent fellow-servants,
safe machinery, etc. But for the mere negligence of one employee,
the master is not responsible to another engaged in the same general
service.

The liability of the master does not depend upon the grade or rank
of the employee whose negligence causes the injury. A superintend-
ent of a factor}', although having power to employ men, or represent
the master in other respects, is, in the management of the machinerj-,
a fellow-servant of the other operatives. (Albro v. Agawam Canal
Co., 6 Cush. 75 ; Conway v. Belfast Ry. Co., supra ; Wood's Master
and Servant, § 438. See, also, §§ 431, 436, 437.) On the same
principle, however low the grade or rank of the employee, the master
is liable for injuries caused by him to another servant, if they result
from the omission of some duty of the master, which he has confided
to such inferior employee. On this principle the Flike case (53 N. Y.
649) was decided. Church, C. J., says, at page 553 : " The true rule,
I apprehend, is to hold the corporation liable for negligence in respect
to such acts and duties as it is required to perform as master, without
regard to the rank or title of the agent intrusted with their performance.
As to such acts the agent occupies the place of the corporation, and
the latter is liable for the manner in which they are performed."

The liabilit}' of the master is thus made to depend upon the char-
acter of the act in the performance of which the injury arises, without
regard to the rank of the employee performing it. If it is one pertain-
ing to the duty the master owes to his servants, he is responsible to
them for the manner of its performance. The converse of the proposi-
tion necessarily follows. If the act is one which pertains only to the
duty of an operative, the employee performing it is a mere servant, and
the master, although liable to strangers, is not liable to a fellow-servant
for its improper performance. (Wood's Master and Servant, § 438.)
The citation which the court read to the jur}', from 21 Am. Rep. 2,
does not conflict with, but sustains this proposition ; it says : " Where
the master places the entire charge of his business in the hands of an

SECT. II.] CRISPIN V. BAJ5BITT. 861

agent, the neglect of the agent in supplying and maintaining suitable
instrumentalities for the work required is a breach of duty for which
the master is liable." These were masters' duties. In so far as the
case from which the citation is made goes beyond this, I cannot recon-
cile it with established principles. In England, by a late act of Parlia-
ment, the rules toucliing the point now under consideration have been
modified in some respects, but in this State no such legislation has
been had.

The point is sharpl}- presented in the present case, by the 13tb,
14th, and 17th requests to charge. 13th. That although John L. Bab-
bitt may, as financial agent or superintendent, overseer or manager,
have represented defendant, and stood in his place, he did so only in
respect of those duties which the defendant had confided to him as
such agent, superintendent, overseer, or manager.

This the court charged.

14th. That as to any other acts or duties performed by him in and
about the defendant's works or business at said works, he is not to be
regarded as defendant's representative, standing in his place, but as
an employee or servant of the defendant, and a fellow-servant of the
plaintiff.

This the court I'efused to charge, but left as a question of fact to the
jur}', and defendant's counsel excepted. I think this was a question of
law, and that the court erred in submitting it to the jury, but should
have charged as requested.

The court was further specificallv requested to charge that in letting
on the steam John L. Babbitt was not acting in defendant's place.
This, I think, was a sound proposition, as applied to the present case.
It was the act of a mere operative for which the defendant would be
liable to a stranger, but not to a fellow-servant of the negligent em-
ployee. As between master and servant it was servant's, and not
master's duty to operate the machinery.

The judgment should be reversed.

Earl, J., dissenting.^ On the one hand, it is claimed that, in
determining the responsibility of the master in such cases, we must
look solely at the duties which were devolved upon the servant
whose acts are complained of, and that if we find that the duty
which he was engaged in discharging when he committed the negli-
gent act or wrong was one of those absolute duties which the master
owed to his servants, then the master is responsible, no matter what
was the grade or position of the servant. On the other hand, I
claim the rule to be, that, in determining the responsibility of the
master for the negligent acts of his servant, we must look solely
at the position of such servant, and we must consider the duties
devolved upon him, solely for the purpose of determining such posi-
tion, and if we find that he was the representative of the master, within

1 The greater part of tliis opinion is omitted. — Ed.

862 JOHNSON V. BOSTON TOW-BOAT CO. [CHAP. VI

the rules above stated, then the master must be held responsible for all
his acts of negligence committed within the scope of the business
intrusted to his hands, as well to co-servants as to strangers.

It cannot be claimed that what John L. Babbitt did was an idle thing,
having no pertinency to the business in hand. If he was there in
defendant's worivs, as we have assumed the jury found, standing in his
place and having the general charge of his business, then he was
empowered to do whatever he saw fit in and about that business and in
furtherance of its objects. Whatever he could order or employ another
to do, he could do himself Did he represent the defendant when he
ordered the laborers to put the boat into the drj- dock, and not repre-
sent him a few minutes later when he put his hands to the engine to
further the same work? If he had ordered another servant to do this
careless act, the defendant would have been liable, and does the
defendant escape liabilit}- because John did the act himself? I saj-,
no. . . .

FoLGER, C. J., Andrews and Miller, JJ., concur with Rapallo, J.
Danforth and Finch, JJ., concur with Earl, J.

Judgment reversed?-

JOHNSON V. BOSTON TOW-BOAT COMPANY.

Supreme Judicial Court of Massachusetts. 1883.

[135 Mass. 209.]

W. Allen, J. The defendant is a corporation engaged in the busi-
ness of moving cargoes and merchandise by means of lighters furnished
with hoisting apparatus. The lighter on which the plaintiff was em-
ployed was equipped with a steam-engine and derrick for hoisting
merchandise, and, at the time the plaintiff was injured, was taking on
a load of iron rails. There were six men employed upon it. — Moore,
the captain, Burns, who had charge of the engine, and four laborers, of
whom the plaintiff was one. The plaintiff was injured by the falling of
a rail upon hiin in consequence of the giving way of a rope called a fall,
part of the hoisting apparatus. The onl}' negligence charged was in
respect of the rope. The plaintiff contended that the defendant was
negligent in not providing and maintaining a sufficient rope ; and there
was evidence tending to show that the rope gave way in consequence of
the negligence of Moore, and also that it was in consequence of the
negligence of Burns.

The jury were properh' instructed that, if the defendant knew, or in
the exercise of reasonable care would have known, of the defect in
the rope, and did not remedy the same, or take proper means to guard

1 Ace. : Hussey v. Conger, 112 N. Y. 614 (1889). — Ed.

SECT. II.] JOHNSON V. BOSTON TOW-BOAT CO. 863

the plaintiff against it, it was negligent. These instructions were not
objected to.

The jury were also instructed that the defendant, without an}- negli-
gence of its own, might be liable for the negligence of Moore or of
Burns, under the rule of respondeat siqjerior^ and it is to this part o'
the instructions, and to refusals to instruct in reference to this, that
exceptions are taken.

The ground upon which this liability is put in the charge to the juryj
and obviously the only ground upon which it could be put, is that
Moore and Burns might not, in respect of their negligent acts, have
been fellow servants with the plaintiff. The alleged negligence of
Burns was in not repairing the rope, as he was ordered to do by Moore,
Sucli negligence would plainly be that of a fellow servant, and the ques-
tion has been argued, and will be further considered, with respect to
Moore alone. The question is not whether Moore was in some respects
a fellow servant with the plaintiff: unquestionably' he was. The in-
structions assume that he was, and present the question whether, in
the particular act in which he was negligent, he was acting as such ser-
vant, or as the representative of tlie defendant. The question put to
the jur}' was, " When the captain got a new rope in place of a defective
one, did he do it as the agent of the defendant in doing its duty of pro-
viding a suitable apparatus or machine for its servants to work with, or
did he do it simply as a fellow servant?" The instructions were errone-
ous in leaving this question to the jurj*. Moore was employed by the
defendant to do certain things upon the lighter. Whether in doing
them he was a servant engaged with others upon the lighter in a com-
mon emplo3inent, or was a deputy' master or vice-principal, was a ques-
tion of law and not of fact. What he was employed to do was a question
of fact ; the capacity in which he did it was an inference of law. Had
there been any question as to the facts, thej- should have been left to
the jury, with instructions as to the legal inferences to be drawn from
the facts which should be found. As the facts were not disputed, the
question left to the jury was one of pure law. If the jury had found
the law correctly-, this error might have been cured ; but it cannot
appear that the verdict ma}- not have been found upon an incorrect
answer to this question. We think the court should have ruled, in ac-
cordance with the pra^-er of the defendant, that Moore and the plaintiff
were fellow servants.

The evidence bearing upon the point in question was not contro-
verted, and the material part of it was, in substance, this: The de-
fendant emplo^'ed in its business twenty-four boats and one elevator,
and had a general manager, who had the general control of its business
and the charge of all its emploj'ees, boats, and apparatus, and who had
under him a superintendent of repairs, who visited and inspected all
the lighters and apparatus used in the business. Moore was called
the captain of the hghter on which the plaintiff was emplo^'ed, and his
duties were, as he testified, to put the men to work, to see that they

864 JOHNSON V. BOSTON TOW-BOAT CO. [CHAP. VI.

did work, to keep their time, and to see to everything generally ; if a
new fall was needed, he was to give notice to the general manager and
get an order for a new one, or to get a new one himself, if it was neces-
sary and he did not find the manager. There was a spare fall on board
at the time. The manager's instructions to Moore were to replace the
falls with new ones whenever there was any defect. It did not appear
iiow often it was necessary to renew the falls, except by inference from
the fact stated, that from April 30th to June 8th was not an improper
time for one to remain in use. The alleged negligence of Moore was
in allowing a rope to remain in use after he knew that it was unsafe.
Moore's duty was that of special superintendence. He was a foreman
to superintend the labor of the men and the use and condition of the
apparatus upon his boat. It is not disputed that, in superintending the
labor of the men and the use of the apparatus and appliances, he was a
fellow servant with the plaintiff, but it is contended that, in his super-
vision of the condition of the appliances, he was acting, not as a ser-
vant, but as a deputy master.

The defendant was under obligation to its servants to use reasonable
diligence to maintain in suitable condition the appliances furnished for
their use. If the defendant exercised that diligence, and provided suit-
able means for keeping its apparatus in proper condition, and employed
competent servants to see that the means were properly used, it had
fulfilled its duty. It was incidental to the use of the apparatus — a
part of its contemplated use — that the rope should be occasionally re-
newed ; and when the defendant had furnished the means for that
renewal, and employed Moore to make the renewal whenever needed, it
employed him as a servant, and not as agent or deput}'. When a mas-
ter has furnished suitable structures, means, and apphances for the
prosecution of a business, all persons employed bj- him in carrying on
the business by the use of the means furnished, including those who
use the means directl}' in the prosecution of the business, those who
maintain them in a condition to be used, and those who adapt them to
use b}' new appliances and adaptations incidental to their use, are fel-
low servants in the general employment and business. One employed
in the care, supervision, and keeping in ordinarv repair of the means
and appliances used in a business, is engaged in the common service.
Thus, a person charged with the duty of keeping the track of a railway
in repair ; Waller v. South Eastern Railwa}', 2 H. & C. 102 ; the chief
engineer on a steam-vessel, whose duty it was to see that the machiner}'
was kept in order; Searle -v. Lindsay. 11 C. B. (N. S.) 429; an
" underlooker " in a mine, whose duty it was to examine the roof of the
mine and prop it when dangerous ; Hall v. Johnson, 3 H. «&; C. 589 ; the
general foreman and manager of extensive builders and contractors ;
Gallagher v. Piper, 16 C. B. (N. S.) 669 ; the superintendent having
the general charge and management of a large manufacturing estab-
lishment, and having the management of lighting the mill and manu-
facturing gas for that purpose ; Albro v. Agawam Canal, 6 Cush. 75 ;

SECT. IL] JOHNSON V. BOSTON TOW-BOAT CO. 865

— were all held to be servants. In all the above cases, the persons
employed to have the charge and superintendence of structures,
machines, or appliances were held to be fellow-servants with those em-
ployed in using them.

In King v. Boston & Worcester Railroad, 9 Cush. 112, and 129 Mass.
277, n., the plaintiff, a fireman on a locomotive engine, was injured by
reason of a defective switcli-rod, and the defendant, not being negligent,
was held not liable. Mr. Justice P'letcber said : " If a corporation
itself should be held responsible to its servants, that the road, when
first used, was safe and sufficient, yet Iveeping the road in proper
repair afterwards would seem to be the work of servants and laborers,
as much as anv other part of the business of the corporation." ^ . . .

The ground upon which the master has been held liable to his ser-
vants, for defects in means and appliances arising during their use, has
been that there was evidence of negligence in him. In Oilman v. Eastern
Railroad, 10 Allen, 233, and 13 Allen, 433, the liability of the master
to the servant was fully considered. Mr Justice Gray said: "The
master is bound to use ordinar}- care in providing suitable structures
and engines and proper servants to carry on his business, and is liable
to any of their fellow servants for his negligence in this respect. This
care he can and must exercise, both in procuring and in keeping or
maintaining such servants, structm-es, and engines. If he knows, or in
the exercise of due care might have known, that his servants are incom-
petent, or his structures or engines insufficient, either at the time of pro-
curing them, or at an}- subsequent time, he fails in his duty." ^ . . .

The master is liable in all cases for his own negligence, and that may
be shown by a defect of such a nature, or so long continued, as to be
of itself evidence of negligence in the master, or the negligence of a
servant may be of such a character that negligence of the master will
be inferred from it.

The instructions in the case at bar allowed the jur}- to find for the
plaintiff without an\' evidence of negligence of the defendant, and
solely on the ground that it was liable for the negligence of Moore.
The question under consideration assumes that sufficient tackle was
provided b}' the defendant, and sufficient provision made for renewing
it. Having provided sufficient appliances, a part of which required
occasional renewal from the wear and tear of the use for which it was
intended, and provided sufficient means for such renewal, and employed
Moore to have the superintendence of the workmen and the apparatus
and appliances, the use of the means provided for keeping the tackle in

1 Here were cited Gilshannon v. Stony Brook Railroad, 10 Cush. 228 ; Seaver v.
Boston & Maine Railroad, 14 Gray, 466; Killea v. Faxon, 125 Mass. 485; Colton v.
Richards, 123 Mass. 484; Kelley v. Xorcro.'^s, 121 Mass. 508. —Ed.

2 Here were cited Roberts v. Marsh, 2 11. & N. 213 ; Arkerson r. Dennison, 117 Mass.
407; Huddleston v. Lowell Machine Shop, 106 Mass. 282; Ford v. Fitchburg Rail-
road, ante, p. 850; Holden v. Fitchhurg Railroad. 129 Mass. 268, 273; Harkins v.
Standard Sugar Refinery, 122 Mass. 400, 405; Ca>zer v. Taylor, 10 Gray, 274; and
Snow V. Housatonic Railroad, 8 Alleu, 441. — Ed.

866 JOHNSON V. BOSTON TOW-BOAT CO. [CHAP. VL

suitable couditiou was as truly a part of Moore's duty as servant as was
the use of the apparatus for the direct purposes of the business, and, in
perfonning that duty, he was a fellow servant with the plaintiff.

A majority of the court are of the opinion that the entry must be

Exceptions sustained.^

L. S. Dahneij^ for the defendant.

I. R. Clark^ for the plaintiff.

1 Arc: McGee v. Boston Cordage Co., 139 Mass. 445 (1885) ; Cregan v. Marston,
126 N. Y. 568 (1891).

Compare Moyuahau v. Hills Co., 146 Mass. 586 (1888) ; Daley v. Boston & Albany
Railroad Co., 147 Mass. 101 (1888) ; Sweet v. Boston & Albany Railroad Co., 156
Mass. 284 (1892).

See Cone v. Delaware, Lackawanna, & Western Railroad Co., 81 N. Y. 206 (1880) ;
Baker v. Allegheny Valley Railroad Co., 95 Pa. 211 (1880).

In Rogers v. Ludlow Manufacturing Co., 144 Mass. 198, 202-205 (1887), Field, J.,
for the court, said : —

" If a master who takes no ])ersonal part in the management of his business has
any duty to perform towards his servants, it is difficult to say tliat it is always wliolly
performed by doing two things, namely, by employing competent servants, and by
furnishing ample means. In order tliat the business may be properly managed, tlie
servants should not only be competent, but they should be numerous enougli to do,
and they should have the means of doing, whatever ought reasonably to be done, and
such regulations should be established as will insure the requisite subordination and
control, and tlie exercise of reasonable intelligence and care in the conduct of the
business ; and it is almost as difficult to define all the duties of the master in these
respects as to define the duties of a person under other relations. If it is not the abso-
lute duty of the master to furnish suitable machinery, and if he is not held to warrant
that the servants he employs to furnish machinery, or to keep it in repair, shall always
use reasonable care, then the duty of a master who does not personally conduct his
business, if he is under any duty, we think, must be to use reasonable care in the
management, and that is to exercise, or have exercised, a reasonable supervision over
the conduct of his servants, as well as to use reasonable care in seeing that his ser-
vants are competent, and are furnished with suitable means for carrying on the
business.

" It is settled in this Commonwealth that all servants employed by the same master
in a common service are fellow-servants, whatever may be their grade or rank. Albro
V. Agawam Canal, 6 Cush. 75 ; O'Connor v. Roberts, 120 Mass. 227 ; Walker v. Bos-
ton & Maine Railroad, 128 Mass. 8; Holden v. Fitchburg Railroad, 129 Mas.s. 268
McDermott v. Boston, 1.33 Mass. 349 ; Flynn v. Salem, 134 Mass. 351 ; Mackin v
Boston & Albany Railroad, 135 Mass. 201.

" It is also settled that the master is only hound to use reasonable care in procuring
suitable machines, in keeping them in proper repair, and in hiring and retaining com-
petent servants. The difficult question is what conduct on the part of the master sat-
isfies this obligation. This question was carefully considered in Holden v. Fitchburg
Railroad, uhi supra. < It is there said that the master ' is bound to use reasonable care
in selecting his servants, and in keeping the engines with which, and the buildings,
places, and structures in, upon, or over which, his business is carried on, in a fit and
safe condition, and is liable to any of his servants for injuries suffered by them by
reason of his negligence in this respect. ... It is difficult, if not impossible, to lay
down a more definite rule applicable to all cases. As to switches or turn-tables upon
the line of a railroad, the employment of suitable persons to select, construct, or in-
spect, has been held to satisfy the obligation of the corporation. ... On the other
hand, where a locomotive engine in actual use is imperfectly constructed, or is worn
out, it has been held that the fact that the corporation has employed suitable persons
to construct it, or to keep it in repair, does not, as matter of law, afford a conclusive

SECT. II.] JOHNSON V. BOSTON TOW-BOAT CO. 867

defence ; but that the question is whether, under all the circumstances, the corpora-
tion, acting by its appropriate oflScers or agents, has used that diligence, and taken
those precautions, which its duty as a master requires.' 129 Mass. 276-278. . . .

" It is the duty of the master to e.xercise a reasonable supervision over the condi-
tion in which the machinery; structures, and other appliances used in his business are
kept by his servants, and ... he cannot wholly escape responsibility by delegating
the performance of this duty to servants ; ... the negligence of his servants in repair-
ing, or in failing to repair, machinery, is not necessarily the negligence of the master,
but . . . it is also to be deter nuned in each case whether the master has exercised a
reasonable supervision over his servants, and reasonable care in seeing tliat his ma-
chinery is kept in proper condition, although he may have employed competent ser-
vants, and furnished them with suitable materials, and instructed them to keep the
machinery in repair.

" As was said in Johnson v. Boston Tow-Boat Co., 135 Mass. 215 : ' The master is
liable in all cases for his own negligence, and that may be .shown by a defect of such
a nature, or so long continued, as to be of itself evidence of negligence in the master,
or the negligence of a servant may be of such a character that negligence of the mas-
ter may be inferred from it.'

" We are aware that this rule is somewhat indefinite, and is, perhaps, not precisely
that which generally prevails in the United States, ^'orthe^n Pacific KaUroad v.
Herbert, 116 U.S. 642; Benzing v. Steinway, 101 N. Y. 547."

In Wabash Railway Co. v. McDaniels, 107" U. S. 454, 459-460 (1882), Harlan, J.,
for the court, said : " The discussion in the adjudged cases discloses no serious conflict
in the courts as to the general rule, but only as to the words to be used in defining the
precise nature and degree of care to be observed by the employer. The decisions,
with few exceptions, not important to be mentioned, are to the effect that the corpora
tion nmst exercise ordinary care. But according to the best considered adjudications,
and upon the clearest grounds of necessity and good faith, ordinary care, in the selec-
tion and retention of servants and agents, implies that degree of diligence and precau-
tion which the exigencies of the particular service reasonably require. It is such care
as, in view of the consequences that may result from negligence on the part of em-
ployees, is fairly commensurate with the perils or dangers likely to be encountered.
In sub.stance, though not in words, the jury were so instructed in the present case.
That the court did not use the word ' ordinary ' in its charge is of no consequence,
since the jury were rightly instructed as to the degree of diligence which the company
was bound to exercise in the employment of telegraphic night-operators. The court
correctly said that that was a position of great responsibility, and, in view of the con»
sequences which might result to employees from the carelessness of telegraphic ope-
rators, upon whose reports depended the movement of trains, the defendant was under
a duty to exercise ' proper and great care ' to select competent persons for that branch
of its service. But that there might be no misapprehension as to what was in law
such care, as applicable to this case, the court proceeded, in the same connection, to
say that the law presumed the exercise by the company of proper diligence, and unless
it was affirmatively shown that the incapacity of McHenry when employed, or after
his employment and before the collision, was known to it, or by reasonable diligence
could have been ascertained, the plaintiff was not entitled to recover. Ordinary care,
then, — and the jury were, in effect, so informed, — implies the exercise of reasonable
diligence, and reasonable diligence implies, as between the employer and employee,
such watchfulness, caution, and foresight as, under all the circumstances of the par-
ticular service, a corporation controlled bv careful, prudent officers ought to exercise.

" These observations meet, in part, the sugprestion made by counsel, that ordinary
care in the employment and retention of railroad employees means only that degree of
diligence which is customary, or is sanctioned by the general practice and usage which
obtains among those intrusted with the management and control of railroad property
and railroad employees. To this view we cannot give our assent. There are general
expressions in adjudged cases which apparently sustain the position taken by counsel.
But the reasoning upon which those cases are based is not satisfactory, nor, as we
think, consistent with that good faith which, at all times, should characterize the in-

868 ELDRIDGE V. THE ATLAS STEAMSHIP CO. "[CHAP. VI.

ELDRIDGE, Respondent v. THE ATLAS STEAMSHIP
COMPANY, Appellant.

Court of Appeals of New York, Second Division. 1892.
[134 N. Y. 187.]

Appeal from judgment of the General Term of the Supreme Court,
in the first judicial department, entered upon an order made October
28, 1890, which affirmed a judgment in favor of plaintiff, entered upon
a verdict, and affirmed an order denying a motion for a new trial.

This was an action for negligence, in that plaintiff, a sailor in the
employ of defendant upon its ship, while in obedience to orders he was
operating its winch — an alleged unsafe machine — had his hand caught
in the cog-wheels thereof, and the ends of four fingers taken off.

November 9, 1886, plaintiff at New York engaged as an able-bodied
seaman to serve on board defendant's ship, the Alvena. The defendant
is a British corporation, but it was not shown under what flag the ship
sailed. The plaintiff had not served upon that ship before. The ship
had three winches, two horizontal — one, No. 3, diagonal. The cog-
wheels of the horizontal winches were covered ; those of the diagonal
No. 3 were without cover. No. 3 was an old-fashioned winch ; the
other two of modern construction. Plaintiff did not observe No. 3
before he went to dut}' November tenth, on which da}' the ship sailed
from New York for Kingston, Jamaica. From Kingston the ship pro-
ceeded to Aspinwall, and there was hauled alongside defendant's ship
Athos ; some of the cargo of the Athos was then transferred to the
Alvena. Plaintiff was ordered to operate winch No. 3 in transferring
the cargo. He had to stand between the winch and the house of the

terconrse between officers of raih-oad corporations and their employees. It should not
be presumed that the employees soujjht or accepted service upon the implied under-
standing that they would exercise less care than that which prudent and humane
managers of railroads ought to observe. To charge a brakeman, when entering the
service of a railroad company, with knowledge of the degree of care generally or usu-
ally observed by agents of railroad corporations in the selection and retention of tele-
graphic operators along the line traversed by trains of cars — a branch of the
company's service of which he can have little knowledge, and with the employees
specially engaged therein he can ordinarily have little intercourse — is unwarranted
by common experience. And to say, as matter of law, that a railroad corporation
discharged its obligation to an employee — in respect of the fitness of co-employees
whose negligence has caused him to be injured — by exercising, not that degree of
care which ought to have been observed, but only such as like corporations are accus-
tomed to observe, would go far towards relieving them of all responsibility whatever
for negligence in the selection and retention of incompetent servants. If the general
practice of such corporations in the appointment of servants is evidence which a jury
may consider in determining whether, in the particular case, the requisite degree of
care was observed, such practice cannot be taken as conclusive upon the inquiry as to
the care which ought to have been exercised. A degree of care ordinarily exercised
in such matters may not be due, or reasonable, or proper care, and therefore not ordi-
nary care, within the meaning of the law." — Ed.

SECT. II.] ELDKIDGE V. THE ATLAS STEAMSHIP CO.

869

gljip — a space eighteen inche.8 wide. He had to operate a valve with
his right hand so as to let the steam on or shut it off as ordered by his
superior, and to operate a lever with his left hand so as to revolve the
drum forward or backward as ordered. There was so much noise that
tliese orders were given by signals by the officer. Thus the officer
raised his hand as the order to go forward, moved it down to go back-
ward, opened it wide to stop, and twirled it round fast to go fast, etc.
The officer was on the right of the front of the plaintiff. The valve to
be moved by plaintiff's left hand was as high as his knee and was at
the end of the winch near its middle. The lever to be moved by his
left hand was on the outside of the side of the winch. The plaintiff's
testimony was to the effect that he had to reach over the big and small
cog-wheels to take hold of the lever. The defendant's testimony was
to the effect that he might have reached around the winch and seized
the lever without passing his hand over the cog-wheels. The size of
the winch is not given.

While watching for orders and at the same time obeying them, the
plaintiff's fingers, in grasping for the lever, came in contact with the
cog-wheels and were crushed. His contention is, if these wheels had
been covered as the wheels of the other winches were, his fingers would
have been protected. Defendant gave testimony tending to show that
the winch was safe enough if plaintiff had been reasonably careful.
The trial court charged the jurj' that if plaintiff entered defendant's
service, knowing that this winch had no cover, he could not recover
upon that ground, and if his own negligence in any way contributed
to his injury he could not recover.

The court also charged that plaintiff was bound "to obey all lawful
orders of the defendant's officers and for a refusal would have forfeited
his wages or been punished. Testimon}' was given to this effect.

The court also charged that if this accident had happened on land,
plaintiff not working as a sailor, he could not recover, but left it for the
jury to say whether in view of the plaintiff's duty as a sailor he \yas
guilty of negligence.

Everett P. Wheeler for appellant.

Jacob Fromme for respondent.

Landon, J. In view of the verdict and the instructions of the trial
court we assume that the plaintiff knew that the winch could not be
operated without risk of danger to himself, but was constrained to obe}'
the order given him by his superior to operate it, because he knew that
disobedience would result in his punishment, that he, therefore, did
operate it and because of its known defects of construction was injured,
notwithstanding his exercise of reasonable care to avoid injury.

The defendant insists that the command to operate this dangerous
winch was not lawful, and, therefore, plaintiff might rightfull}' have
refused obedience. If it be conceded that the command was unlawful,
it does not necessarily follow that plaintiff's obedience was negligence.
For whether the command was lawful or unlawful, the evidence is to

870 ELDRIDGE V. THE ATLAS STEAMSHIP CO. [CHAP. VI.

the effect that his disobedience would have resulted in his punishment.
The boatswain, under whose orders plaintiff was operating the winch,
testified that the plaintiff " was bound to obey the order that I gave
him ; if he did not obey the order he would have been put in irons and
fined." Grant that the plaintiff had been so learned in the law as to
know that the courts would ultimately decide that the command was
unlawful, and disobedience to it lawful, he could know no wa}- of
escape from the ship's punishment of his disobedience, for there was
none. The jury found in effect that he was coerced through fear of
punishment into obedience. If the command was unlawful, the defend-
ant's case is not improved by the fact that the punishment it would
visit upon disobedience was also unlawful. In an}' event the plaintiff
was in a dilemma. He had to choose between present punishment with
a possible hope of remote justification, and customaiy obedience to
orders with the hope that by care he would escape injuiy. Grant that
he made a mistake in judgment under these difficult conditions, the
law does not adjudge it to be negligence, and the jury upon considera-
tion have refused to do so. We cannot hold that their refusal was
error.

Except as the case is affected by the dangerous condition of the winch,
the order to operate it was lawful and the plaintiff's obedience was
the duty of his service. Whatever ma}' be the practical administration
of law or of arbitrary power on ship-board, the plaintiff, if amenable
to the law of the United States, was also punishable by our courts for
wilful disobedience to any lawful command. Section 4596, U. S. R. S.
provides, "Whenever any seaman who has been lawfully engaged
. . . commits any of the following offences, he shall be punishable as
follows : Fourth. For wilful disobedience to any lawful command, by
imprisonment for not more than two months, and also, at the discretion
of the court, by forfeiture out of his wages of not more than four days'

pay."

Thus the plaintiff had to choose whether he would obey the order,
or take the hazard of liability under the statute. Whatever ma}- have
been the law of the flag of the ship, or of the United States of Colum-
bia, in whose port the injury was received, it was not shown and hence
the parties in our forum must accept the law as we administer it. (The
Scotland, 105 U. S. 24.)

In this view of the case, if the plaintiff made a mistake in judgment
the defendant could rightfully ask no more than that the jury should
pass upon the facts.

We find no error of law requiring a reversal.

Haight, J. (dissenting).^ If, as we have shown, the machine was
reasonably safe if operated with care, the master had the right to require
the plaintiff to operate it, and it was his duty to observe the care neces-
sary to prevent the injury.

^ The greater part of this opinion has been omitted. — Eix

SECT. II. J ELDRIDGE V. THE ATLAS STEAMSHIP CO. 871

But assuming that the machine was dangerous, there were no threats
made b}' tlie master or evidence given to show coercion. The usual
order was given to the plaintiff to operate the winch. He made no
objection or complaint in reference thereto. He was in port and could
have left the vessel and sought the protection of the consul if the
orders of the master were unlawful.

Coercion must be established by the evidence. The bare fact that
he was told to operate the winch does not establish an intent to unlaw-
fully interfere with him, and we cannot, from that fact alone, assume
that he would have been unlawfully punished had he refused to obey
the order. . . .

All concur with Landon, J., except Follett, C. J., Haight and
Parker, J J., dissenting.

Judgment affinned}

1 In Membery v. Great Western Ry. Co., 14 App. Cas. 179, 187-188 (1889), Lord
Bramwell said : —

" I hold that where a man is not physically constrained, where he can at his option
do a thing or not, and he does it, the maxim applies. What is voletis ? willing ; and
a man is willing when he wills to do a thing and does it. No doubt a man, popularly
speaking, is said to do a thing unwillingly, with no good will, but if he does it, no
matter what his dislike is, he prefers doing it to leaving it aloue. He wills to do it.
He does not will not to do it. I suppose nolens is the opposite of volens, its negative.
There are two men, one refuses to do work, wills not to do it, and does not do it. The
other grumbles, but wills to do it, and does it. Are both men nolentes, unwilling 7
Suppose an extra shilling induced the man who did the work. Is he nolens, or has the
shilling made him volens ? There seems to be a strange notion, either that a man who
does a thing and grumbles is nolens, is unwilling, has not the will to do it, or that there
is something intermediate between nolens and rolens, something like a man being with-
out a will, and yet who wills. If the shilling made liim volens, why does not the desire to
continue employed do so ? If he would have a right to refuse the work and his dis-
charge would be wrongful, with a remedy to him, why does not his preference of
certain to an uncertain law not make him volens as much as any other motive ? There
have been an infinity of profoundly learned and useless discussions as ,to freedom of the
will ; but this notion is new.

" This is an important question. Is the maxim to be got rid of 1 Are we to say
Volenti Jit injuria provided he grumbles, as Mr. Bell contended ? To do so would be
most unjust and unreasonable. The master says, Here is the work, do it or let it alone.
If you do it, I pay you ; if not, I do not. If he has engaged him, he says, I discharge
you if you do not do it ; I think I am right ; if wrong, I am liable to an action. The
master says this, the servant does the work and earns his wages, and is paid, but is
hurt. On what principle of reason or justice should the master be liable to him in
respect of that hurt ? "

With the principal case compare Benson v. Goodwin, 147 Mass. 237 (1888) ; Iledley
?;. Pinkney & Sons Steamship Co., [1894] A. C. 222.

See Thompson v. Hermann, 47 Wis. 602 (1879) ; Thrussell v. Handyside 20 Q. B. D.
359 (1888).

Compare also Leary v. Boston & Albany Railroad Co., 139 Mass. .580 (1885)
Dougherty v. West Superior Iron & Steel Co., 88 Wis. 343 (1894). — Ed.

872 BALTIMORE AND OHIO RAILROAD CO. V. BAUGH. [cilAr. VL

BALTIMORE AND OHIO RAILROAD COMPANY v. BAUGH.

Supreme Court of United States. 1893.

[149 U. S. 368.]

John Baugh, defendant in error, was employed as a fireman on a
locomotive of the plaintiff in error, and while so emplo3'ed was injured,
as is claimed, through the negligence of the engineer in charge thereof.
He commenced a suit to recover for these injuries in the Circuit Court
of the United States for the Southern District of Ohio.

The circumstances of the injur}' were these : The locomotive was
manned by one Hite, as engineer, and Baugh, as fireman, and was
what is called in the testimony a " helper." On May 4, 1885, it left
Bellaire, Ohio, attached to a freight train, which it helped to the top
of the grade about twenty miles west of that point. At the top of the
grade the helper was detached, and then returned alone to Bellaire.
There were two ways in which it could return in conformity to the rules
of the compan}', — one on the special orders of the train dispatcher at
Newark, and the other by following some regular scheduled train carrj--
ing signals to notify trains coming in the opposite direction that the
helper was following it. This method was called in the testimony
" flagging back." On the day in question, without special orders, and
not following any scheduled train, the helper started back for Bellaire,
and on the way collided with a regular local train, and in the collision
Baugh was injured. Baugh had been in the emplo}- of the railroad
company' about a year, had been fireman about six months, and had
run on the helper, two trips a day, about two months. He knew that
the helper had to keep out of the wa}' of the trains, and was familiar
with the method of flagging back.

No testimony was oflered by the defendant, and at the close of the
plaintiff"'s testimony the defendant asked the court to direct a nonsuit,
which motion was overruled, to which ruling an exception was duly
taken. In its charge to the jury the court gave this instruction : " If
the injury results from negligence or carelessness on the part of one so
placed in authority over the employee of the company, who is injured,
as to direct and control that employee, then the company is liable."
To which instruction an exception was duly taken. The jury returned
a verdict for the plaintiff for $6,750, and upon this verdict judgment
was entered. To reverse which, the railroad company sued out a writ
of error from this court.

Mr. John K. Coioen (with whom was Mr. Hugh L. Bond, Jr.., on
the brief), for plaintiff in error.

Mr. L. Daiiford (with whom was Mr. James C. Tallman on the
brief), for defendant in error.

Mr. Justice Brewer delivered the opinion of the court.

The single question presented for our determination is whether the

SECT. II.] BALTIMORE AND OHIO RAILROAD CO. V. BAUGH. 873

engineer and fireman of this locomotive, running alone and without
any train attached, were fellow-servants of the company, so as to pre-
clude the latter from recovering from the company for injuries caused
by the negligence of the former.^ . . .

Counsel for defendant in error rel}- principally upon the case of Rail-
road Co. V. Ross, 112 U. S. 377, taken in connection with this portion
of rule No. 10 of the company: "•Whenever a train or engine is run
without a conductor, the engineman thereof will also be regarded as
conductor, and will act accordingly." The Ross case, as it is com-
monly known, decided that " a conductor of a railroad train, who has
a right to command the movements of a train and control the persons
employed upon it, represents the company while performing those
duties, and does not bear the relation of fellow-servant to the engineer
and other employees on the train." The argument is a short one:
The conductor of a train i-epresents the company, and is not a fellow-
servant with his subordinates on the train. The rule of the company
provides that when there is no conductor, the engineer shall be re-
garded as a conductor. Therefore, in such case he represents the
compan}^, and is likewise not a fellow-servant with his subordinates.
But this gives a potenc}" to the rule of the company which it does not
possess. The inquiry' must always be directed to the real powers and
duties of the official, and not simpl}' to the name given to the office.
The regulations of a company cannot make the conductor a fellow-
servant with his subordinates, and thus overrule the law announced in
the Ross case. Neither can it, by calling some one else a conductor,
bring a case within the scope of tlie rule there laid down. In other
words, the law is not shifted backwards and forwards by the mere
regulations of the company-, but applies generall}-, irrespectively of all
such regulations. There is a principle underlying the decision in that
case, and the question always is as to the applicability' of that principle
to the given state of facts.

What was the Ross case, and what was decided therein ? The in-
struction given on the trial in the Circuit Court, which was made the
principal ground of challenge, was in these words : "It is ver}' clear,
I think, that if the company sees fit to place one of its employees under
the control and direction of another, that then the two are not fellow-
servants engaged in the same common employment, within the mean-
ing of the rule of law of which I am speaking." The language of that
instruction, it will be perceived, is very like that of the one here com-
plained of; and if this court had approved that instruction as a general
rule of law, it might well be said that that was sufficient authority for
sustaining this and affirming the judgment. But though the question
was fairl}' before the court, it did not attempt to approve the instruc-
tion generally, but simply held that it was not erroneous as applied to
the facts of that case. This is evident from this language, found in

^ The omitted passages held that the question is not one of local law. — Ed.

874 BALTLMORE AND OHIO KAILROAD CO. V. BAUGH. [CHAP. VL

the latter part of the ophiion (p. 394), and which is used in suinniing
up the conchisions of the court: " We agree with them in holding —
and the present case requires no further decision — that the conductor
of a railway train, who commands its movements, directs when it shall
start, at what stations it shall stop, at what speed it shall run, and has
the general management of it, and control over the persons employed
upon it, represents the company, and therefore that, for injuries result-
ing from his negligent acts, the compau}- is responsible. If such a con-
ductor does not represent the company, then the train is operated
without any representative of its owner. If, now, we apply these
views of the relation of the conductor of a railwa}' train to the com-
pany, and to the subordinates under him on the train, the objections
urged to the charge of the court will be readily disposed of. Its lan-
guage in some sentences may be open to verbal criticism, but its pur-
port, touching the liabilit}- of the company, is that the conductor and
engineer, though both emploj^ees, were not fellow-servants in the sense
in which that terra is used in the decisions." It is also clear from an
examination of the reasoning running through the o})inion, for there is
nowhere an argument to show that the mere fact that one servant is
given control over another destroys the relation of fellow-servants.
After stating the general rule, that a servant entering into service as-
sumes the ordinarj- risks of such employment, and, among them, the
risk of injuries caused through the negligence of a fellow-servant, and
after referring to some cases on the general question, and saying that
it was unnecessary to la}' down an}' rule which would determine in all
cases what is to be deemed a common employment, it turns to that
which was recognized as the controlling fact in the case, to wit, the
single and absolute control which the conductor has over the manage-
ment of a train, as a separate branch of the company's business, and
sa^'s (p. 390) : " There is, in our judgment, a clear distinction to be
made in their relation to their common principal, between servants of
a corporation, exercising no supervision over others engaged with them
in the same emplovment, and agents of the corporation, clothed with
the control and management of a distinct department, in which their
duty is entirely that of direction and superintendence. . . . We know
from the manner in which railways are operated that, subject to the
general rules and orders of the directors of the companies, the con-
ductor has entire control and management of the train to which he is
assigned. He directs when it shall start, at what speed it shall run,
at what stations it shall stop, and for what length of time, and ever}'-
thing essential to its successful movements ; and all persons employed
on it are subject to his orders. In no proper sense of the term is he a
fellow-servant with the fireman, the brakemen, the porters, and the
engineer. The latter are fellow-servants in the running of the train
under his direction ; as to them and the train, he stands in the place
of and represents the corporation." And it quotes from AYharton's
Law of Negligence, sec. 232a: "The true view is that, as corpora-

SECT. II.] BALTIMORE AND OHIO RAILROAD CO. V. BAUGH. 875

tioiis can act only through superintending officers, the negligences of
those officers, with respect to other servants, are the negligences of the
corporation." And also from Malone v. Hathaway, 64 N. Y. 5, 12:
" Corporations necessarily acting by and through agents, those having
the superintendence of various departments, with delegated authority
to employ and discharge laborers and employees, provide materials
and machinery for tlie service of the cori)oration, and generally direct
and control under general powers and instructions from the directors,
may well be regarded as the representatives of the corporation, charged
with the performance of its duty, exercising the discretion ordinarily
exercised by principals, and, within the limits of the delegated author-
ity, the acting principal."

The court, therefore, did not hold that it was universally true that,
when one servant has control over another, the}- cease to be fellow-
servants within the rule of the master's exemption from liability, but
did hold that an instruction couched in such general language was not
erroneous when applied to the case of a conductor having exclusive
control of a train in relation to other employees of the com[)any acting
under him on the same train. The conductor was, in the language of
the opinion, "clothed with the control and management of a distinct
department;" he was "a superintending officer," as described by
Mr. Wharton; he had "the superintendence of a department," as
suggested by the New York Court of Appeals.

And this rule is one frequentlj- recognized. Indeed, where the mas-
ter is a corporation, there can be no negligence on the part of the
master, except it also be that of some agent or servant, for a corpora-
tion only acts through agents. The directors are the managing agents ;
their negligence must be adjudged the negligence of the corporation,
although they are simpU' agents. So when tliey place the entire man-
agement of the corporation in the hands of a general superintendent,
such general superintendent, though himself onl}' an agent, is almost
universally recognized as the representative of the corporation, the
master, and his negligence as that of the master. And it is onl}'
carrying the same principle a little further and with reasonable appli-
cation, when it is held that, if the business of the master and employer
becomes so vast and diversified that it naturally separates itself into
departments of service, the individuals placed In' him in charge of
those separate branches and departments of service, and given entire
and absolute control therein, are properlj- to be considered, with re-
spect to employees under them, vice-principals, representatives of the
master, as fully and as completely as if the entire business of the mas-
ter was by him placed under charge of one superintendent. It was
this proposition which the court applied in the Ross case, holding that
the conductor of a train has the control and management of a distinct
department. But this rule can onlj' be fairly applied when the different
branches or departments of service are in and of themselves separate
and distinct. Thus, between the law department of a railway corpo-

876 BALTIMORE AND OHIO RAILKOAD CO. V. BAUGH. [CHAP. VI.

ration and the operating department there is a natural and distinct
separation, — one which makes the two departments like two independ-
ent kinds of business, in which the one employer and master is engaged.
So, oftentimes there is in the affairs of such corporation what may be
called a manufacturing or repair department, and another strictly ope-
rating department ; these two departments are, in their relations to
each other, as distinct and separate as though the work of each was
carried on by a separate corporation. And from this natural sei)ara-
tion flows the rule that he who is placed in charge of such separate
branch of the service, who alone superintends and has the control of
it, is as to it in the place of the master. But this is a very different
proposition from that which affirms that each separate piece of work in
one of these branches of service is a distinct department, and gives to
the individual having control of that piece of work the position of
vice-principal or representative of the master. Even the conclusion
announced in the Ross case was not reached b}- a unanimous court, —
four of its members being of opinion that it was carrying the thought
of a distinct department too far to hold it applicable to the management
of a single train.

The truth is, the various employees of one of these large corporations
are not graded like steps in a staircase, — those on each step being as
to those on the step below in the relation of masters, and not of fellow-
servants, and only those on the same steps fellow-servants, because not
subject to any control b}' one over the other. Prima facie, all who
enter into the employ of a single master are engaged in a common
service, and are fellow-servants, and some other line of demarcation
than that of control must exist to destro}' the relation of fellow-servants.
All enter into the service of the same master to further his interests in
the one enterprise ; each knows when entering into that service that
there is some risk of injury through the negligence of other employees,
and that risk, which he knows exists, he assumes in entering into the
employment. Thus, in the opinion in the Ross case, p. 382, it was
said : "• Having been engaged for the performance of specified services,
he takes upon himself the ordinary risks incident thereto. As a con-
sequence, if he suffers by exposure to them, he cannot recover com-
pensation from his employer. The obvious reason for this exemption
is that he has, or, in law, is supposed to have, them in contemplation
when he engages in the service, and that his compensation is arranged
accordingly. He cannot, in reason, complain if he suffers from a risk
which he has voluntarily assumed, and for the assumption of which he
is paid."

But the danger from the negligence of one specially- in charge of the
particular work is as obvious and as great as from that of those who
are simply co-workers with him in it. Each is equallj- with the other
an ordinary risk of the employment. If he is paid for the one, he is
paid for the other ; if he assumes the one. he assumes the other. There-
fore, so far as the matter of the master's exemption from liability de-

SECT. II.] BALTIMORE AND OHIO RAILROAD CO. V. BAUGH. 877

pends upon whether the negligence is one of the ordinary risks of the
employment, and, thus assumed b3' the employee, it includes all co-
workers to the same end, whether in control or not. But if the fact
that the risk is or is not obvious does not control, what test or rule is
there which determines ? Rightfully this : there must be some personal
wrong on the part of the master, some breach of positive duty on his
part. If he discharges all that may be called positive duty, and is
himself guilty of no neglect, it would seem as though he was absolved
from all responsibility, and that the party who caused the injury should
be himself alone responsible. It ma}' be said that this is only passing
from one difficulty to another, as it leaves still to be settled what is
positive dut}' and what is personal neglect ; and yet, if we analyze
these matters a little, there will appear less difficult}' in the question.
Obviously, a breach of positive duty is personal neglect ; and the ques-
tion in an}' given case is, therefore, what is the positive dutv of the
master? He certainly owes the duty of taking fair and reasonable
precautions to surround his employee with fit and careful co-workers,
and the employee has a right to rely upon his discharge of this duty.
If the master is careless in the matter of employing a servant, it is his
personal neglect; and if without proper care in inquiring as to his
competency he does employ an incompetent person, the fact that he
has an incompetent, and therefore an improper employee, is a matter
of his personal wrong, and owing to his personal neglect. And if the
negligence of this incompetent servant works injurj- to a co-servant, is
it not obvious that the master's omission of duty enters directly and
properly into the question of responsibility ? If, on the other hand, the
master has taken all reasonable precautions to inquire into the compe-
tency of one proposing to enter into his service, and as the result of such
reasonable inquiry is satisfied that the employee is fit and competent,
can it be said that'' the master has neglected an^'thing, that he has
omitted any personal dut}', — and this, notwithstanding that after the
servant has been employed it shall be disclosed that he was incompe-
tent and unfit? If he has done all that reasonable care requires to
inquire into the competency of his servant, is any neglect imputable to
him? No human inquiry, no possible precaution, is sufficient to abso-
lutely determine in advance whether a party under certain exigencies
will or will not do a negligent act. So it is not possible for the master,
take whatsoever pains he may, to secure employees who will never be
guilty of an}' negligence. Indeed, is there any man who does not some-
times do a negligent act? Neither is it possible for the master, with
any ordinary and reasonable care, always to secure competent and fit
servants. He may be mistaken, notwithstanding the reasonable pre-
cautions he has taken. Therefore, that a servant proves to be unfit
and incompetent, or that in any given exigency he is guilty of a negli-
gent act resulting in injury to a fellow-servant, does not of itself prove
any omission of care on the part of the master in his employment ; and
it is only when there is such omission of care that the master can be

878 BALTIMORE AND OHIO RAILROAD CO. V. BAUGH. [CIIAP. VL

said to be guilty of personal wrong in placing or continuing such ser-
vant in his employ, or has done or omitted aught justifying the placing
upon him responsibility for such employee's negligence.

Again, a master employing a servant impliedly engages with him
that the place in which he is to work, and the tools or machinery with
which he is to work, or by which he is to be surrounded, shall be rea-
sonably safe. It is the master who is to provide the place and the
tools and the machinery ; and when he employs one to enter into his
service he impliedly says to him that there is no other danger in the
place — the tools and the machinery — than such as is obvious and
necessarj'. Of course, some places of work and some kinds of ma-
chinery are more dangerous than others, but that is something which
inheres in the thing itself, which is a matter of necessity, and cannot
be obviated. But within such limits the master, who provides the
place, the tools, and the machinery', owes a positive duty to his em-
ployee in respect thereto. That positive duty does not go to the extent
of a guarantee of safety*, but it does require that reasonable precautions
be taken to secure safety, and it matters not to the employee by whom
that safety is secured, or the reasonable precautions therefor taken.
He has a right to look to the master for the dischai-ge of that duty,
and if the master, instead of discharging it himself, sees fit to have it
attended to by others, that does not change the measure of obligation
to the employee, or the hitter's right to insist that reasonable precau-
tion shall be taken to secure safety in these respects. Therefore it will
be seen that the question turns rather on the character of the act than
on the relations of the employees to each other. If the act is one done
in the discharge of some positive duty of the master to the servant,
then neghgence in the act is the negligence of the master ; but if it be
not one in the discharge of such positive dut^', then there should be
some personal wrong on the part of the employer before he is held
liable therefor. But, it may be asked, is not the duty of seeing that
competent and fit persons are in charge of any particular woik as pos-
itive as that of providing safe places and machinery? Undoubtedly it
is, and requires the same vigilance in its discharge. But the latter
duty is discharged when reasonable care has been taken in providing
such safe place and machinery, and so the former is as full}' discharged
when reasonable precautions have been taken to place fit and compe-
tent persons in charge. Neither duty carries with it an absolute guar-
anty. Each is satisfied with reasonable effort and precaution.^ . . .

It may safely be said that this court has never recognized the propo-
sition that the mere control of one servant over another in doing a
particular piece of work destroys the relation of fellow-servants, and
puts an end to the master's liability. On the contrary, all the cases

1 Here were cited Atchison, Topeka, &c. Railroad v. Moore, 29 Kans. 632, 644 ;
Hough V. Railway Co., 100 U. S. 213 ; Northern Pacific Railroad v. Herbert, 116 U. S.
642 ; Railroad Co. v. Fort, 17 Wall. 553 ; Randall v. B. & O. Railroad, 109 U. S; 478;
and Quebec Steamship Co. v. Merchant, 133 U. S. 375. — Ed.

SECT. II.] BALTIMORE AND OHIO RAILROAD CO. V. BAUGH. 879

proceed on the ground of some breach of positive duty resting upon
the master, or upon the idea of superintendence or conti'ol of a depart-
ment. It has ever been affirmed that the employee assumes the ordi-
nary risks incident to the service ; and, as we have seen, it is as
obvious that there is risk from the negligence of one in immediate con-
trol as from one simply a co-worker. That the running of an engine
b}' itself is not a separate branch of service seems perfectly- clear. The
fact is, all the locomotive engines of a railroad company are in the one
department, — the operating department ; and those employed in run-
ning them, whether as engineers or firemen, are engaged in a common
employment, and are fellow-servants. It might as well be said that,
where a liveryman has a dozen carriages, the driver of each has charge
of a separate branch or department of service, and that if one drives
his carriage negligently against another employee, the master is exempt
from liability.

It may further be noticed that in this particular case the injur}' was
not in consequence of the fireman's obeying any orders of his superior
officer. It did not result from the mere matter of control. It was
through negligence on the part of the engineer in running his engine ;
and the injury would have been the same if the fireman had had noth-
ing to do on the locomotive, and had not been under the engineer's
control. In otlier words, an employee carelessK manages an engine,
and another employee, who happens to be near enough, is injured by
such carelessness. It would seem, therefore, to be the ordinar}' case
of the injury of one employee through the negligence of another.

Again, this was not simpl}' one of the risks assumed b}' the emplo3'ee
when entering into the employment, and yet not at the moment fully
perceived and understood. On the contrar}', the peril was known and
voluntarily assumed. The plaintiff admits in his testimony that he
knew the}' had no right to the track without orders, and that there was
a local train on the road somewhere between them and Bellaire ; and
yet, with this knowledge, and without protest, he voluntarily rode on
the engine with the engineer. Hammond r. Railway Compan}-, 83
Micliigan, 334 : Railway Company v. Leach, 41 Ohio St. 388; Wes-
cott V. Railroad Co., 153 Mass. 460.

In the first of these cases the party injured was a section hand, who
was injured while riding on a hand-car, in company with a fellow-
laborer and the section foreman ; and the negligence claimed was in
propelling the hand-car along a curved portion of the track, with
knowledge of an approaching train, and without sending a lookout
ahead to give warning. In respect to this, Mr Justice Cahill, speak-
ing for the court, says: "But if this conduct was negligent, it was
participated in b}' Hammond. The latter had been going up and down
this section of the road daily for three months. Whatever hazard there
was in such a position was known to him, and he must be held to have
voluntaril}' assumed it. . . . Where, as in this case, the sole act of
negligence relied on is participated in, and voluntarily consented to by

880 BALTIMORE AND OHIO RAILROAD CO. V. BAUGH. [CHAP. VI

the person injured, with full knowledge of the peril, the question of the
master's liability does not arise."

So, in this ease, Baugh, equally with the engineer, knew the peril,
and with this knowledge voluntarily rode with the engineer on the
engine. He assumed the risk.

For these reasons we think that the judgment of the Circuit Court
was erroneous, and it must be

Heversed and the case remanded for a neto trial.

Mr. Justice Field dissenting.^

Wx. Chief Justice Fuller dissenting.

I dissent because, in my judgment, this case comes within the rule
laid down in Chicago, Milwaukee, &c. Railway- v. Ross, 112 U. S. 377,
and the decision unreasonabl}' enlarges the exemption of the master
from liability for injury to one of his servants bj- the fault of another.'^

1 Tliis opinion was to the effect that the law of Ohio ought to govern the case, and
that the opinion of the majority of the court limited and denied the doctrine of the
Ross case. — Ed.

^ In Great Britain and in some of the United States the rules as to fellow-servants
and as to appliances are now largely governed by statutes intended to increase the
responsibility of employers.

In some of tlie States the statutes are applicable to railways only. See Code
of Georgia (1882), §§ 2083, 3036 (based on a statute passed in 18.56, Acts of 1855-56,
p. 155) ; Iowa Code (1873), § 1307 (based on a statute passed in 1862, 9 G. A. c. 169,
§ 7, as amended by later statutes).

In other States the statutes, following closely the British Employers Liability Act,
1880 (43 & 44 Vict c. 42), are applicable to almost all employers. See Code of
Alabama (1886), § 2590 (based on a statute passed in 1885, Acts of 1884-5, p. 115) ;
Massachusetts Statutes of 1887, c. 270.

The principal provisions of the British Employers Liability Act, 1880, are: —

" 1. Where . . . personal injury is caused to a workman

" (1) By reason of any defect in the condition of the ways, works, machinery, or
plant connected with or used in the business of the employer ; or

" (2) By reason of the negligence of any person in the service of the employer
who has any superintendence intrusted to him whilst in the exercise of such superin-
tendence ; or

" (3) By reason of the negligence of any person in the service of the employer to
whose orders or directions the workman at the time of the injury was bound to con-
form, and did conform, where such injury resulted from his having so conformed ; or

" (4) By reason of the act or omission of any person in the service of the emploj-er
done or made in obedience to the rules or by-laws of the employer, or in obedience to
particular instructions given by any person delegated with the authority of the em-
ployer in that behalf ; or

" (5) By reason of the negligence of any person in the service of the employer
who has the charge or control of any signal, points, locomotive engine, or train upon a
railway, —

" The workman, or in case the injury results in death, the legal personal repre-
sentatives of the workman, and any persons entitled in case of death, shall have the
same right of compensation and remedies against the employer as if the workman had
not been a workman or not in the service of the employer, nor engaged in his work.

" 2. A workman shall not be entitled under this Act . • .

" (1) Under sub-section 1 of section 1, unless the defect . . . arose from, or had not
been discovered or remedied o^nng to the negligence of the employer, or of some per-
son in the service of the employer, and intrusted by him with the duty of seeing that
the ways, works, machinery, or plant were in proper condition.

SECT. II.] BALTIMORE AND OHIO RAILROAD CO. V. BAUGH. 881

" (2) Under sub-section 4 of section 1, unless the injury resulted from some impro-
priety or defect in the rules, by-laws, or instructions . . .

" (3) In any case where the workman knew of the defect or negligence which
caused the injury, and failed within a reasonable time to give . . . information thereof
to the employer or some person superior to himself in the service of the employer,
unless he was aware that the employer or such superior already knew. . . .

" 8. . . . ' Person who has superintendence intrusted to him ' means a person whose
sole or principal duty is that of superintendence, and who is not ordinarily engaged
in manual labor. . . . ' Employer ' includes a body of persons corporate or unincor-
porate. . . . ' Workman' means a railway servant, and any person to whom the Em-
ployers and Workmen Act, 1875 [38 & 39 Vict. c. 90], applies."

Cases on the interpretation of the statutes, and particularly on the interpretation of
"ways, works, machinery, or plant," are : Howe v. Finch, 17 Q. B. D. 187 (1885);
Yarmouth v. France, 19 Q. B. U. 647 (1887) ; Ashley v. Hart, 147 Mass. 573 (1888);
Brannigan v. Robinson, [1892] I Q. B. 344 ; Eugel v. New York, Providence & Boston
Railroad Co., 160 Mass. 260 (1893); Bowen v. Connecticut River Railroad Co., 162
Mass. 312 (1894).

The liability of the employer is determined not by tlie law of the place where the
contract of service is made, but by the law of the place where tlie injury is suffered.
Alabama Great Southern Railroad Co. v. Carroll, 97 Ala. 126 (1892).

By judicial construction the statutes leave open to the employer the defence of con-
tributory negligence, and also, at least in clear cases, the defence that the servant has
voluntarily assumed the very risk incurred. Thomas r. Quartermaine, 18 Q. B. D.
685 (C. A. 1887) ; Yarmouth v. France, 19 Q. B. D. 647 (1887) ; Mellor v. Merchants
Manufacturing Co., 150 Mass. 362 (1890) ; Lothrop v. Fitchburg Railroad Co, 150
Mass. 420 (1890) ; Cassady v. Boston & Albany Railroad Co., 164 Mass. 168 (1895).
See Smith v. Baker, [1891] A. C. 325.

It is disputed whether a servant is bound by a special contract to the effect that he
will not bring an action under the statutes for an injury not yet suffered. To the
effect that a servant is bound by such a contract are : Western & Atlantic Railroad
Co. V. Bishop, 50 Ga. 465 (1873) ; Griffiths v. Earl of Dudley, 9 Q. B. D. 357 (1882)
Contra are: Kansas Pacific Ry. Co. v. Peavey, 29 Kan. 169 (1883); Railway Co. v.
Spangler, 44 Ohio St. 471 (1886). In some States, statutes expressly provide that
such contracts are void. See Public Statutes of Massachusetts (1882), c. 74, § 3 (from
Statutes of 1877, c. 101, § 1).

The statutes do not take away the right of action, if any, which the servant would
have in case there were no statute. Ryalls v. Mechanics' Mills, 150 Mass. 190 (1889).

As to the policy underlying the statutes, see the Reports from the Select Com-
mittee on Employers' Liability (Parliamentary Blue Books, 1876 and 1877) ; and Pol-
lock's Essays in Jurisprudence, 114. As to the history of the statutes, see an
article by M. C. Hobbs, 2 Harv. Law Rev. 212. — Ed.

882 WILKINSON V. COVERDALE. [CHAP. VIL

CHAPTER VII.
THE AGENT'S DUTIES TO THE PRINCIPAL.

SECTION I.

Obedience, Diligence, and Skill.

WILKINSON V. COVERDALE.

Nisi Pkius. 1793.

[1 Esp. 75.]

This was a special action on the case against the defendant for
negligence.

The declaration stated, That the defendant had undertaken to pro-
cure an insurance against fire for certain premises belonging to the
plaintiff, and on his account, which insurance he had efljected, but that
he had conducted himself so negligentl}- in the perfecting such insur-
ance that, the premises having been burned by fire, that the plaintiff
had not been able to recover any part thereof against the fire office,
whereby he had suffered a total loss.

The case as staled on the part of the plaintiff was, that he had pur-
chased the premises in question from the defendant in the month of
August, 1792 ; the defendant at that time had a subsisting policy from
the Phoenix Fire Office from December, 1791, to December, 1792 ; that
the defendant had undertaken to get this policy renewed on account
of the plaintiff, and in fact liad renewed it ond charged a sum of £16 as
the premium paid, but that it being necessary where a partj' who has an
insurance standing in the ofl3ce, assigns or mortgages his interest in the
premises insured, that an indorsement should be made on the policy
testifying such matter, and allowed at the Office b}' some of the acting
members of the compan}' ; that the defendant had neglected to have this
assignment and allowance made at the ofhce, in consequence of which
the plaintiff was precluded from having any remedy on the polic}'
against the office and had sustained a total loss.

It was admitted on the part of the plaintiff, that tliere was no con-
sideration whatever moving from him to the defendant for this under-
taking to get the policy on his account, but that the defendant had
undertaken it gratuitouslj' on the plaintifTs account.

SECT. I.] THORNE V. DEAS. 883

On this circumstance being admitted, Lord Kenton expressed a
doubt, whether any action could be maintained on such an undertaking.

Erskine for the plaintiff cited a manuscript note of a case decided at
Nisi Prius before Mr. Justice Bui.ler, of Wallace v. Tellfair, wherein
that judge had ruled in an action similar in point of circumstances with
the present, that though there was no consideration for one party's
undertaking to procure an insurance for another, 3-et where a party
voluntarily undertook to do it, and proceeded to cai-ry his undertaking
into effect by getting a polic}- underwritten, but did it so negligentl}- or
unskilfully, that the party could derive no benefit from it, that in
that case he should be liable to an action ; he then contended, that the
defendant in the present case had brought himself within the rule so
laid down by the learned judge, he having effected the polic3-, but by
his negligence in not procuring the allowance at the Fire Office on the
assignment of the premises, that the plaintiff had lost all benefit from it.

Lord Kenyon acquiesced in the distinction, and suffered the cause to
proceed.

The plaintiff failed in proving any promise of the defendant to pro-
cure the insurance as stated in his case, and was nonsuited.

Ei'shine and Gibbs for the plaintiff.

Law^ Chiimbre, and Park for the defendant.

THORNE AND ANOTHER V. DEAS.

Supreme Court of New York. 1809.

[4 Johns. 84.]

This was an action on the case for a non-feasance, in not causing
insurance to be made on a certain vessel, called the Sea Nymph, on a
voyage from New York to Camden, in North Carolina.

The plaintiflTs were co-partners in trade, and joint owners of one
moiet}" of a brig called the Sea Nymph, and the defendant was sole
owner of the other moiet}' of the same vessel. The brig sailed in
ballast, the 1st December, 1804, on a vo3'age to Camden, in North
Carolina, with William Thorne, one of the plaintiffs, on board, and was
to proceed from that place to Europe or the West Indies. The plain-
tiffs and defendant were interested in the voyage, in proportion to
their respective interests in the vessel. On the (\ixy the vessel sailed, a
conversation took place between William Thorne, one of the plaintiffs,
and the defendant, relative to the insurance of the vessel, in which W.
Thorne requested the defendant that insurance might be made : to
which the defendant replied, " that he (Thorne) might make himself
perfectly easy on the subject, for that the same should be done."
About ten days after the departure of the vessel on her vojage, the

884 THORNE V. DEAS. [CHAP. VIL

defendant said to Daniel Thorne, one of the plaintiffs, '■*■ Well, we have
saved the insurance on the brig." D. Thorne asked, "How so? or
whether the defendant had heard of her arrival?" To which the
defendant answered, " No ; but that, from the winds, he presumed that
slie had arrived, and that he had not yet effected an}' insurance." On
this D. Thorne expressed his surprise, and observed, " that he supposed
that the insurance had been effected immediately, by the defendant,
according to his promise, otherwise, he would have had it done him-
self; and that, if the defendant would not have the insurance immedi-
ately made, he would have it effected." The defendant replied, that
" He (D. Thorne) might make himself eas}-, for he would that day apply
to the insurance offices, and have it done."

The vessel was wrecked on the 21st December, on the coast of North
Carolina. No insurance had been effected. No abandonment was
made to the defendant by the plaintiffs.

The defendant moved for a non-suit, on the ground that the promise
flfas without consideration and void ; and that, if the promise was bind-
ing, the plaintiffs could not recover, without a previous abandonment to
the defendant. These points were reserved by the judge.

A verdict was taken for the plaintiffs, for one-half of the cost of the
vessel, with interest, subject to the opinion of the court on the points
reserved.

J] RadcUff, for the plaintiffs.

T. A. Emmet and Baldicin, contra.

Kent, C. J., delivered the opinion of the court. The chief objection
raised to the right of recovery in this case, is the want of a considera-
tion for the promise. The offer, on the part of the defendant, to cause
insurance to be effected, was perfectly voluntary. Will, then, an
action lie, when one party intrusts the performance of a business to
another, who undertakes to do it gratuitously, and wholly omits to do
it? If the party who makes this engagement, enters upon the execu-
tion of the business, and does it amiss, through the want of due care,
by which damage ensues to the other party, an action will lie for this
misfeasance. But the defendant never entered upon the execution of
his undertaking, and the action is brought for the non-feasance. Sir
William Jones, in his " Essay on the Law of Bailments," considers this
species of undertaking to be as extensively binding in the English law,
as the contract of mandatuyn^ in the Roman law ; and that an action
will lie for damage occasioned by the non-performance of a promise to
become a mandatary, though the promise be purely gratuitous. This
treatise stands high with the profession, as a learned and classical per-
formance, and I regret, that on this point, I find so much reason to
question its accuracy. I have carefully examined all the authorities to
which he refers. He has not produced a single adjudged case ; but
only some dicta (and those equivocal) from the Year Books, in sup-
port of his opinion ; and was it not for the weight which the authority
of so respectable a name imposes, I should have supposed the question
too well settled to admit of an argument.

SECT. I.] WHITEHEAD V. GKEETHAM. 885

A short review of the leading cases will show, that by the common
law, a mandatary, or one who undertakes to do an act for another,
without reward, is not answerable for omitting to do the act, and is
only responsible when he attempts to do it, and does it amiss. In
other words, he is responsible for a misfeasance, but not for a non-
feasance, even though special damages are averred.^ . , .

Judgment for the defendant.

WHITEHEAD v. GREETHAM.
Exchequer Chamber. 1825.

[2 Bing. 464.]

Error ftom K. B. on a verdict in an action of assumpsit against the
defendant below, for failure in an undertaking to make a secure invest-
ment of certain money deposited in his hands b}- the plaintiff below for
that purpose.

The ground of error was, that a general verdict had been given by
the jury for the plaintiff below, upon the first five counts of the declara-
tion, with general damages, though the third count was substantially
defective in not alleging a sufficient consideration for the promise and
undertaking set forth in that count, which was as follows : —

Whereas before the making of the promise and undertaking of the
said defendant hereinafter mentioned, to wit, on, &c., at, &c., tlie said
plaintiff, at the special instance and request of the said defendant, re-
tained and employed the said defendant to advance and la}' out a certain
sum of mone^', to wit, the sum of £700 for the said plaintiff, in the pur-
chase of an annuity, to be well and sufficiently secured, he the said defend-
ant undertook, and then and there faithfully promised the said plain tifl!",
to use due and sufficient care to advance and la}* out the said sum of
monev in the purchase of an annuitv, the payment whereof should be
well and sufficienth' secured ; and the said plaintiff in fact saith, that
he, confiding in the said last-mentioned promise and undertaking of the
said defendant, afterwards, to wit, on, &c., at, &c., delivered to him
the said defendant the said last-mentioned sum of mone}', for the
purpose last aforesaid ; and although the said defendant afterwards,
to wit, on, &c., at, &c., did advance and la}' out the said sum of mone}'
for the said plaintiff, in the purchase of a certain annuit}', to wit,
the purchase from the Reverend Samuel Locke, of an annuity or
annual payment of £96, during the life of the said Samuel Locke, for
and in consideration of the said sum of £700, the money of the said
plaintiff, then and there advanced and paid by the said defendant to the
Bald Samuel Locke ; nevertheless the said defendant, not regarding his

^ The discussion of the cases has been omitted. — Ed.

886 WHITEHEAD V. GKEETHAM. [CHAP. VII,

said promise and undertaking, but contriving and fraudulently intending,
craftih' and subtilly to deceive, defraud, and injure the said plaintiff in
this behalf, did not nor would use due and sulllcient care to advance
and lay out the said sum of money in the purcliase of an annuity, to be
well and sufficiently' secured, but wholly' neglected so to do, and thereby
craftilj' and subtilly* deceived and defrauded the said plaintiff in this, to
wit, that the said defendant then and there wrongfully and unjustly ad-
vanced and paid the said sum of £700 to the said Samuel Locke as
aforesaid, on a bad, insufficient, and inadequate security ; and also in
this, to wit, that the said Samuel Locke, before and at the time of the
said advance of the said sum of £700 to him as aforesaid, and from
thence hitherto hath been, and still is, in bad and insolvent circum-
stances, and wholl}' unable to pay the said annuity or any part thereof;
and, in truth and in fact, b}' reason of the badness and insuflicienc}' of
the said security, and of the said bad and insolvent circumstances of the
said Samuel Locke, he, the said plaintiff, hath been and is wholly un-
able to recover or receive payment or satisfaction of the said annuity',
and is likelj' to lose the same, as well as the said sum of £700, so ad-
vanced and paid to the said Samuel Locke as aforesaid ; and therebj'
also, he, the said plaintiff, hath lost and been deprived of the use and
benefit of divers sums of money, amounting in the whole to a large sum
of money, to wit, the sum of £200 paid bj- the said plaintiff, in and
about the effecting and keeping on foot a certain policy of insurance
effected on the life of the said Samuel Locke, to wit, at Westminster
aforesaid, in the county' aforesaid.

Tindal, for the plaintiff in error.

Chitty^ contra.

Best, C. J. The court is of opinion, that this count is sufficient
after verdict. The objections which have been made to it, ai'e, first,
that there was no consideration for the defendant's promise ; secondly,
that if there was, it is insufficient!}- stated.

The second objection cannot be raised in this stage of the cause ; if
available at all, it is an objection on demurrer, but not in error or
arrest of judgment.

Is there, then, any consideration for the defendant's promise? the
count states, that the plaintiiff had retained the defendant at his request
to laj' out £700 in the purchase of an annuity. That the defendant
promised to lay it out securely, and that the plaintiff delivered him the
money for that purpose. The case of Coggs v. Bernard decides that
this was abundant consideration ; the consideration in that case was
the deliver}' of brandy ; here it is the delivery of £700, which casts it
on the defendant to account for the same. It is urged, indeed, that
though this consideration appears, it is nowhere stated to be the con-
sideration for the defendant's promise ; but after verdict it must be
taken that the promise was made upon tliis consideration. The princi-
ple is, to ascertain what the judge would require to be proved at ISTisi
Prius, and in the present case nothing less would have been sufficient

SECT. I.] PAKKER V. BRANCKER. 887

than proof of the deliveiy of the money to the defendant, and of his
engagement to lay it out. The judgment of the court above, therefore,
must be Affirmed.

PARKER V. BRANCKER et al.

Supreme Judicial Court of Massachusetts. 1839.

[22 Pkk. 40.]

In Jul}', 1832, Parker, the plaintiff, consigned to Brancker, Delius,
& Co., the defendants, commission merchants in Hamburg, 1640 bags
of coffee, on which, according to a previous agreement, Brancker,
Delius, & Co. made large advances. Parker sent a letter of instruc-
tions limiting the sale at a certain price. Brancker, Delius, & Co.
afterwards brought a suit against Parker, to recover the amount of
their advances. The coffee had not then been sold, but having been
sold pending the suit for a sum less than the advances, expenses, and
interest, credit was given in the suit, for the net proceeds. In that suit,
Parker offered evidence tending to show that Brancker, Delius, & Co.
could and ought to have sold the coffee at the limit, in September, 1833,
before the commencement of that suit. To the admission of this
evidence the counsel of Brancker, Delius, & Co. objected, but it was
admitted. The jury found a verdict in favor of Brancker, Delius, & Co.
for the amount of the advances, expenses, and interest, deducting the
net proceeds of the coffee. Upon this verdict judgment was rendered
Pending that suit, the coffee having been sold by Brancker, Delius
& Co. at a price much below the limit, Parker brought the present
action, in which he claimed damages of them : 1. for not selling the
coffee at the limit, in September, 1833 ; and 2. for afterwards selling
it below the limit, after having commenced their action to recover back
their advances.

In answer to the claim for not selling at the limit, the defendants
oflfered, with other evidence, the judgment in the former suit, and proof
that the same matter had been submitted to the jury in the defence of
that suit ; to the admission of which the plaintiff objected, on the
ground that the former suit being for money had and received, evidence
of a breach of orders in not selling at the limit was inadmissible, and
therefore that proof that it was submitted to the former jury was inad-
missible in the present case. But the Chief Justice, before whom the
action was tried, admitted the evidence, reserving the question for the
whole court.

In support of the second claim, for selling the coffee below the limit,
the plaintiff introduced the letter of instructions sent with tlie consign-
ment, dated the seventh of July, 1832, fixing the limit at sixty shillings
the hundred weight, and the answer of the defendants, dated the 21st of
August, 1832, acknowledging the receipt of the orders and accepting

888 PARKER V. BRANCKER. [CHAP. VII.

the consignment. Also a letter from the plaintiff to the defendants,
dated in February, 1833, reducing the limit to fifty-eight shillings.
Also the writ in the former suit, by which it appeared, that on the 14th
of June, 1834, the defendants commenced that suit and directed the sheriff
to attach property to the amount of $3500, which was done. The plaintiff
also proved, that on the 21st of October, 1834, and pending the former
suit, the defendants sold the coffee at a price very much below the limit,
and that in the following spring coffee rose to a considerably higher
price than that at which the plaintiff's coffee had been sold ; and the
plaintiff claimed the difference between the actual sales and the price
which the article would have brought in the following spring.

The defendants contended, 1. that they had exercised due care and
diligence in the sale of the plaintiffs coffee ; that there was no period
when the}" could have realized the price limited by the plaintiff, and
especially they could not do so in September, 1833. 2. That the ques-
tion of due diligence and abilit}" to realize the plaintiff's limit in Septem-
ber, 1833, had been submitted by the present plaintiff to the jury in the
former suit ; and had been found against him. 3. That at diverslimes,
and especially in June, 1834, the defendants' agent demanded payment
of the plaintiff for a portion of the sum advanced, which was not com-
plied with. 4. That the plaintiff, in June, 1834, fixed on the autumn
of that year as the period when he wished the sale of his coffee to be
made, and it was actually kept till that time b}' the defendants and then
sold to the best advantage at the then market prices.

In support of these allegations the defendants read certain depositions
and letters ; also a report of the former suit, and the bill of particulars,
verdict, judgment, and execution therein.

Upon the evidence in the case the Chief Justice instructed the jury,
that a commission merchant, having received goods to sell at a certain
limited price, and made advances upon such goods, had a right to reim-
burse himself by selling such goods at the fair market price, though below
the limit, if the consignor refused, upon application and after a reason-
able time, to repay the advances. To this instruction the plaintiff
excepted, and the question was reserved.

J^. Dexter, for the plaintiff.

C P. Curtis^ for the defendants.

Wilde, J.-' The rule of law thus laid down appears to the court
to have been stated with perfect accuracy, and with all the qualifications
which are applicable to the defendants' riglit of sale, as claimed by them
on the evidence.

The law appears to be well settled, both in England and in this coun-
try, that the pledgee of personal property, after the debt becomes due,
may sell without a judicial process and decree of foreclosure, upon
giving reasonable notice to the debtor to redeem.

It was so decided in Tucker v. Wilson, 1 P. Wms. 261, and in

^ The opinion has been abbreviated by omitting, at the beginning and elsewhere,
paaaages not dealing with the instructions. — Ed.

SECT. I.] PARKER V. BRANCKER. 889

Lock wood V. Ewer, 2 Atk. 303. The same rule of law was laid down
in De Lisle v. Priestman, 1 Brown's Peun. R. 176, and in New York
by Chancellor Kent, in Hart v. Ten Eyck, 2 Johns. Ch. R. 100, and
again in his Commentaries ; 2 Kent (3d edit.), 582.

The principle thus settled seems to be founded in good sense, and may
be essentially necessary to enable the pledgee to avail himself of his
pledge, in a reasonable manner, for the discharge of his demand.

In the present case the defendants were not merely pledgees, but
the}' were expressly authorized to sell the property consigned to them,
and thereb}' to reimburse themselves for their advances. There was
no time limited within which the sale was to have been made. The
defendants were, therefore, bound by their acceptance of the consign-
ment, to wait a reasonable time, if the sale could not be made for the
price limited, although by the delay their security might be impaired.

But after such a reasonable time had elapsed, and a demand had
been made upon the plaintiff to repay the mone}- advanced, and he had
refused so to do, he had no further power, by any principle of law or
justice, to control the defendants' right of sale to their prejudice.
Such a power would be inconsistent with the understanding of the
parties, as it must be presumed to have been when the advances were
made ; and it would enable the plaintiff to impair the defendants' securit}',
at his own will and pleasure for an unlimited time, if he were disposed
so to do. To sanction such a right, would operate injuriousl}' on the
interests of consignees, and would check the continuance of those
large advances, by the aid of which a flourishing trade has been carried
on, for years past, to the great profit of the mercantile community.
For although such advances may sometimes lead to overtrading, and
may induce individuals to venture upon rash speculations, yet it cannot
be doubted, that on the whole they have contributed to the increase of
the wealth and prosperit}' of the countr}'. The principle, therefore,
involved in this case is of great importance, and has been considered
by the court with great care. . . .

The defendants . . . are entitled to judgment on their verdict.^

1 Ace. : Brown v. McGran, 14 Pet. 479, 494-495 (1840) ; Frothingham v. Everton, 12
N. H. 239 (1841); Marfield v. Goodhue, 3 N. Y. 62 (1849); Feild v. Farrington, 10
Wall. 141 (1869).

See Weed v. Adams, 37 Conn. 378 (1870).

Compare Smart v. Sandars, 5 C. B. 895 (1848); De Comas i;. Frost, 3 Moo. P. C.
H. 8. 158 (1865). — Ed.

890 WILSON V. BRETT. [CHAP. VIL

WILSON V. BRETT.
Exchequer. 1843.
[11 M.Sr W. 113.]

Case. The declaration stated, that the plaintiff, at the request of
the defendant, caused to be delivered to the defendant a certain horse
of the plaintiff of great value, to wit, &c., to be by the defendant
shown to a certain person to the plaintiff unknown, and to be re-
delivered by the defendant to the plaintiff on request, and that there-
upon it then became and was the duty of the defendant to take due and
proper care of the said horse, and to use and ride the same in a careful,
moderate, and reasonable manner, and in places fit and proper for that
purpose : 3-et the defendant, not regarding his duty, &c., did not nor
would take due and proper care of the said horse, but on the contrary
used and rode the same in a careless, immoderate, and improper man-
ner, and in unfit and improper places, &c., whereby the said horse was
injured, &c. Plea, not guilty.

At the trial before Rolfe, B., at the London Sittings in this term,
it appeared that the plaintiff had intrusted the horse in question to the
defendant, requesting him to ride it to Peckham, for the purpose of
showing it for sale to a Mr. Marge tson. The defendant accordingly
rode the horse to Peckham, and for the purpose of showing it, took it into
the East Surrey Race Ground, where Mr. Margetson was engaged with
others playing the game of cricket : and there, in consequence of the
slippery nature of the ground, the horse slipped and fell several times,
and in falling broke one of his knees. It was proved that the defend-
ant was a person conversant with and skilled in horses. The learned
judge, in summing up, left it to the jury to say whether the nature of
the ground was such as to render it a matter of culpable negligence in
the defendant to ride the horse there ; and told them, that under the
circumstances, the defendant, being shown to be a person skilled in the
management of horses, was bound to take as much care of the horse as
if he had borrowed it ; and that, if they thought the defendant had been
negligent in going upon the ground where the injuiy was done, or had
ridden the horse carelessly there, the}- ought to find for the plaintiff.
The jur}' found for the plaintiff, damages £5 10s.

Byles^ Sergt., now moved for a new trial, on the ground of mis-
direction. — There was no evidence here that the horse was ridden in an
unreasonable or improper manner, except as to the place where he was
ridden. The defendant was admitted to be a mere gratuitous bailee ;
and there being no evidenceof gross or culpable negligence, the learned
judge misdirected the jur}', in stating to them that there was no differ-
ence between his responsibilit}' and that of a borrower. Tliere are
three classes of bailments : the first, where the bailment is altogothei
for the benefit of the bailor, as where goods are delivered for deposit oi

SECT. I.] WILSON V. BRETT. 891

carriage ; the second, wliere it is altogether for the benefit of the bailee,
as in the case of a borrower; and the third, where it is partly for the
benefit of each, as in the case of a hiring or pledging. This defendant
was not within the rule of law applicable to the second of these classes.
The law presumes that a person who hires or borrows a chattel is pos-
sessed of competent skill in the management of it, and holds him liable
accordingly. The learned judge should therefore have explained to
the jury, that that which would amount to proof of negligence in a
borrower, would not be sufficient to charge the defendant, and that he
could be liable only for gross or culpable negligence.

Lord Abingek, C. B. We must take the summing up altogether;
and all that it amounts to is, that the defendant was bound to use such
skill in the management of the horse as he really possessed. Whether
he did so or not was, as it appears to me, the proper question for the
jury. I think, therefore, that the direction was perfectly right, and
that no rule ought to be granted.

Parke, B. I think the case was left quite correctly to the juiy.
The defendant was shown to be a person conversant with horses, and
was therefore bound to use such care and skill as a person conversant
with horses might reasona])ly be expected to use : if lie did not, he was
guilty of negligence. The whole effect of what was said bj' the learned
judge as to the distinction between this case and that of a borrower,
was this ; that this particular defendant, being in fact a person of
competent skill, was in effect in the same situation as that of a bor-
rower, who in point of law represents to the lender that he is a person
of competent skill. In the case of a gratuitous bailee, where his pro-
fession or situation is such as to impl}- the possession of competent
skill, he is equally liable for the neglect to use it.

Alderson, B. The learned judge thought, and correctly, that, this
defendant being shown to be a person of competent skill, there was no
difference between his case and that of a borrower ; because the only
difference is, that there the part}' bargains for the use of competent
skill, which here becomes immaterial, since it appears that the defend-
ant has it.

RoLFE, B. The distinction I intended to make was, that a gratuitous
bailee is only bound to exercise such skill as he possesses, whereas a
hirer or borrower may reasonably* be taken to represent to the part}'
who lets, or from wliom he borrows, that he is a person of competent
skill. If a person more skilled knows that to be dangerous which
another not so skilled as be does not, surel}' that makes a difference in
the liabilitj'. I said I could see no difference between negligence and
gross negligence — that it was the same thing, witli the addition of a
vituperative epithet ; and I intended to leave it to the jury to say
whether the defendant, being, as appeared by the evidence, a person
accustomed to the management of horses, was guilty of culpable
negligence. Biile refused.'^

1 See Shiells v. Blackburne, 1 H. Bl. 158 (1789). —Ed.

892 OPIE V. SERRILL. [CHAP. VIL

OPIE V. SERRILL.
Supreme Court of Pennsylvania. 1843.

[6 W. 4' S. 264.]

Error to the District Court for the city and county of Philadelphia.*

Ilicskell, for the plaintiff in error.

F. 3Ion'is and McCall, contra.

Sergeant, J. This was an action of assumpsit for goods sold and
delivered. The orfginal debt was not denied, but the defendant alleged
that the plaintiffs received from him on account certain claims against
a third person in Nashville, Tennessee, consisting of a note to the
defendants, then due, and a book-account for a small sum, transferred
to the plaintiffs, both of which were received by the plaintiffs for collec-
tion ; that afterwards the plaintiffs took from the debtor at New
Orleans a new note at four months for the whole amount due from
him, made payable to the order of the plaintiffs, and thereupon deliv-
ered up to him the original note and book-account. To prove these
facts, he offered in evidence the plaintiffs' answer to a bill of discovery,
but the court rejected it. We are of opinion that the evidence ought
to have been received. In itself, the answer, with the bill, was evi-
dence to go to the jury, and there is nothing in the answer which takes
away the defence, though the whole of the answer be, as it is con-
tended it ought to be, taken together. It is alleged that the under-
taking to collect was gratuitous, and therefore the plaintiffs, as agents,
were only liable for gross negligence. It is not necessary to examine
the law on this head, because whenever an agency is assumed, whether
gratuitous or not, the parties are bound b}' the terms agreed upon
between them. Jones on Bailm. 101, 114, 115, 116; Story on Bailm.
137. An agent undertaking to collect a debt placed in his hands, who
releases it and takes from the debtor a new note to himself, does, in
law, receive payment of the debt, and is at once liable to the principal
as if he had received the money. In Floj'd v. Day, 3 Mass. 403, an
attorney employed to collect a demand compromised it by receiving a
note (part of which had been paid), specially endorsed to himself; and
in an action of trover for the note brought against him, the court say,
that when the defendant, instead of mone}', received this note, and dis-
charged the debtor, the property of the note was in the defendant, and
he became immediately answerable to the plaintiff for the amount of
the liquidated damages, which made part of the consideration of the
principal, and an action of assumpsit was the proper remedy. He
must be considered as having made himself liable for the money he
ought to have received. In the case before us, the plaintiffs released
and extinguished the original debt by a surrender of the note and

^ The reporter's statement has been omitted. — Ed.

SECT. I.] WOLFF V. KOPPEL. 893

book-account, and the taking a new note was as much a payment of it,
as regards the defendant, as if the plaintiffs had received the mone}-.
Having collected the debt, therefore, thej- must be responsible for it.

Judgment reversed^ and a venire facias de novo awarded.^

WOLFF AND HENRICKS v. KOPPEL.

Court of Errors of New York. 1845.

[2 Denio, 368.]

On error from the Supreme Court. Koppel sued Wolff & Henricks
in the New York C. P. in assumpsit for the price of certain goods sold
b}' the defendants as the plaintiff's factors under an agreement, as
alleged, to guarant}' the sales. The question upon the trial was
whether the defendants acted under a del credere commission or not.
The plaintiff produced the account of sales rendered by the defendants,
in which a commission of five per cent was charged, and much of the
evidence related to the question whether the amount charged for com-
missions afforded evidence of an agreement to guarant}- the sales.
There was other evidence upon the principal question arising out oi
the acts and declarations of the parties. When the plaintiff rested,
the defendants moved for a nonsuit, insisting that they could not be
made responsible as guarantors of the sales, except upon an under-
taking in writing valid within the Statute of Frauds. The motion was
denied, and the defendants' counsel excepted. The cause was after-
wards submitted to the jury, who found for the plaintiff, and judg-
ment was rendered accordingly. The defendants brought error to
the Supreme Court, where the judgment of the Common Pleas was
affirmed ; upon which the defendants brought error to this court. The
reasons for the judgment of affirmance are contained in the report of
the case in 5 Hill, 458.

George Wood, for the plaintiffs in error.

C. E. Benedict^ for the defendant in error.

Porter, Senator. This writ of error seems to have been brought to
determine whether the agreement of a factor to guarant}' the sales
made by him is a contract within the Statute of Frauds, requiring an
agreement in writing to prove its existence. This necessarily involves
an inquir}' into the nature of the contract which the factor makes in
such a case. The plaintiff insists that one acting under a del credere
commission is a guarantor or surety for the debt which the purchaser
of the goods contracts ; while the defendants, on the other hand, main-
tain that the factor contracts an original absolute obligation, to pay the

1 Ace. : Paul v. Grimm, 165 Pa. 139 (1895). — Ed.

894 WOLFF V. KOPPEL. [CHAP. VH.

principal the amount of the sales, at the expiration of the term of
credit. It depends upon the character of the contract in this respect,
whether the i)romise of the factor is to pa}" the debt of another, or his
own proper debt, and consequently whether it can be proved by parol.

I find no case decided prior to the year 1816 which favors the posi-
tion taken b}' the defendants. Previous to that time, there are man}'
cases directly hostile to that position. In 1786, in the case of Grove
V. Dubois, 1 T. R. 112, Lord Mansfield, C. J., held that the engage-
ment of a broker acting under a del credere commission was absolute ;
and that he was liable in the first instance, and at all events. BuUer, J.
agreed with him full}-, and said he had never heard the inquir}- made,
whether a demand had been made upon the purchaser. We find these
two verj- distinguished judges speaking of this as a familiar principle,
and one universall}' acknowledged and practised upon. The case of
Scott V. Mackenzie, decided in Scotland in 1795, involved the same
principle. The defendant, a factor, acting under a del credere commis-
sion, at the request of his principal, transmitted the proceeds of the
sales in a bill on a house in London. The parties to the bill failed
before paNment. On the question as to the liability' of the factor, the
court in Scotland decided that no paj-ment but such an one as would
have satisfied a proper debt, was sufficient to discharge the factor ; and
gave judgment for the plaintiff. This judgment was affirmed in the
House of Lords in 1796. 6 Bro. Par. Cas. 280. In Houghton v.
Matthews, 3 Bos. & Pull. 489, Chambre, J. says, that where a factor
sells under a del credere commission, he becomes responsible for the
price, and he is to be considered, as between himself and the vendor,
as the sole owner of the goods. In the same case Lord Alvanlej',
Ch. J. says, that the effect of a del credere commission is to make the
factor responsible for the value of the goods to his principal. These
opinions were given in 1803. Mr. Bell, in his Commentaries, pub-
lished in 1816, at p. 378, lays down the rule thus : " The correct legal
import of a del credere engagement, is an engagement to be answerable
as if the person so binding himself was the proper debtor. This seems
"o be the correct legal import of the undertaking ; and it is as nearlj'
vs possible, the meaning of the Italian phrase which we have adopted.
He is placed, in relation to the principal, precisely- in the same situa-
tion as if he had actually received in loan the mone}- of the principal."
Paley on Agenc}-, p. 39, adopts the same rule. Mr. Corny n, in his
treatise on contracts, vol. I. p. 253, is equall}- explicit in his statement
of this rule. He sa3's, " a factor del credere, on the sale of the goods
makes himself absolutel}' liable in the first instance, for the pa3'ment of
the price of such goods, in the same manner as if he were himself the
purchaser, and was debited for them b}' the principals as such." Chan-
cellor Kent, in the first edition of his commentaries, published in 1826,
states his view at that time of the law on this point as follows : " When
a factor acts under a del credere commission for an additional premium
he becomes liable to his principal when the purchase mone}- falls due ;

SECT. I.] WOLFF V. KOPPEL. 895

for he is substituted for the purchaser, and is bound to pa}', not con-
ditionall}-, but absoUitely, and in the first instance." 2 Kent's Com.
1st ed. 487. The principle is stated in the same wa^' in 2 Chitty on
Com. Law, 220, 1.

Here we have a whole current of decisions and a coincidence of
opinions among eminent authors, in favor of the absolute liabilit\' of
' the factor to pay the price for which goods are sold under such a com-
mission, when the credit has expired. This should, I think, settle the
question. But the doctrine has been questioned, and finally' overruled,
in England. It was first doubted in Morris v. Cleasb}^, 4 Maule &
Selw. 56G, decided in 1816 ; and Chancellor Kent, in the fourth edition
of his commentaries, modifies what he had before stated, and treats the
point as a vexata quest io, while in a note to his last edition, he sa^'s, it
is now settled in England, that the factor is onl}^ a suret}- for the
solvenc}- of the purchaser. I do not find, however, that the recent
innovation in England has been adopted in this country, except ia
Tliompson v. Perkins, 3 Mason's Rep. 232, where Mr. Justice Story
has followed the case of Morris v. Cleasbv. AVe are now asked to give
the new rule the sanction of this court. But in my judgment we
should not follow the courts in England in their departure from the
former rule. This is a class of contracts that have existed in this
country as long as commerce has flourished, and under which business
is daily transacting to a large amount. The understanding of the mer-
cantile community has, I apprehend, been general and uniform, that
the agreement between the principal and factor was original and abso-
lute to pay the price of the sale, deducting the commission, at the time
the credit expired. Doubtless the factor expected the fund would be
received from the purchaser ; but whether received or not, he charges
himself with the amount in his account with his principal. A contrary
rule would require the principal to exhaust his remedy against the pur-
chaser, in order to determine his insolvenc}', l)efore he could chai'ge the
factor as surety.

The Supreme Court of Massachusetts have had this question before
them, and have adhered to the law as it was understood in England
prior to 1816. In Swan v. Nesmith, 7 Pick. 220, decided in 1828,
Parker, Ch. J. in giving the opinion of the court, speaking of a del
credere contract, sa3's : "The legal effect of such a contract is, to
make the defendants, the factors, liable at all events for the proceeds
of the sale, so that according to some authorities, though denied by
others, they ma}' be charged in ludehitatics assumpsit, or for goods
sold to them. And there seems to be no good reason wh}- they should
not be so charged, if upon receiving the goods they became account-
able ; except that their liability is not fixed until a sale is made, or if
upon credit, until the time of payment arrives." I am not satisfied
that the new rule is an improvement, if we were at libert}' to take our
choice ; but on the other hand, think it wise to adhere to the old prin-
ciple, that adjudges the contract of the factor in such cases to be an

896 JOHNSTON V. KERSHAW. [CHAP. VII.

original and absolute one, for the payment of the price, and shall there-
fore vote for affirming the judgment of the Supreme Court.

For reversal : Senators Hand ^ and Mitchell — 2.

For affirmance : Senators Backus, Beekman, Beers, Bockee,
Corning, Deyo, Emmons, Folsom, Johnson, Jones, Lott, Porter,
Sedgwick, Smith, Talcott, and Wright — 16.

Judgment affirmed.^

JOHNSTON AND others v. KERSHAW.

Exchequer. 1867.

[L. R. 2 Ex. 82.]

Declaration for mone}- payable for goods bargained and sold, work
done and commission due in respect thereof, for money paid, and for
money found to be due on accounts stated.

Plea, never indebted. Issue thereon.

The cause was tried before Martin, B., at the Liverpool summer
assizes, 1866, when the following facts were proved : —

The plaintiffs are merchants at Pernambuco, and the defendant is
engaged in business at Liverpool. On the 8th of March, 1866, the
defendant, who had on previous occasions bought cotton from the
plaintiffs, wrote them the following letter: "1 beg to confirm my
letter of 23d Februar}', and hope you will have executed fully all the
cotton ordered, and consider still in force. If executed, please regard
this as a new order for one hundred more, at extreme limit, ll^d. for
Pernam or Paraiba Firsts, and one hundred Bahia at 17ff/. good, fair,
and in each case the same quantity additional for each halfpenny down
in price. Maceios are not desirable, unless at '2\d. or 2>d. below, say
about Ibd. I shall be greatly disappointed if I get no cotton at these
prudent limits. I congratulate myself on reducing on 8th January
to 17^f/., avoiding losses." On the 17th of March, the defendant sent
a telegram (which was afterwards confirmed by letter) repeating the
order, and altering the maximum limit for Pernam and Paraiba cotton
to 19c/. per lb.

In conformity with this order, the plaintiffs Itought, in the market at
Pernambuco, on the defendant's account, one hundred bales of Paraiba
cotton, ninet3'-four being Paraiba firsts, and six being Paraiba seconds.
On the 12th of April they gave notice by letter to the defendant of this
purchase, and of the shipment of the goods. In the letter the}' stated
that six of the bales wei'e " seconds," and requested the defendant, if
he did not want them, to hand them over to Messrs. Samuel Johnston

^ A dissenting opinion by Senator Hand has not been reprinted. — Ed.
2 Ace. : Couturier v. Hastie, 8 Exch. 40 (1852). —Ed.

SECT. I.] JOHNSTON V. KEOSHAW. 897

& Co., of Liverpool [the plaintiff's Liverpool house], who would paj'
the invoice cost. Meanwhile, there having been a heavy fall of prices
in the Liverpool market, the defendant had written on the 7th of April
to the plaintiffs, reducing his limits 3d. per lb., and also directing them,
if any cotton above ll^d. had been bought on his account, to resell the
same upon the spot, at least possible loss, and to cancel all his orders
to that date for cotton and sugar. The letter continued thus : "I
will write by next mail, when I hope to be able to fix a maximum price
for cotton. In the meantime T hope and trust 3'ou have not effected
an}' purchase on account of yours, &c." On the 23d of April the
defendant again wrote to the plaintiffs, reiterating the instructions con-
tained in the letter of the 7th, and fixing, in the event of a panic in the
market, a fresh maximum for one hundred bales of Paraiba firsts. The
plaintiffs, on the 28th of April, in acknowledging the receipt of the
letter of the 7th, stated, with reference to the defendant's request to
sell any cotton the}' might have bought on liis account on the spot, that
they were unable to comply with his instructions in that respect, as the
onl}' order they held for him was for the one hundred bales already
shipped.

The plaintiffs drew a bill on the defendant for the price of these one
hundred bales, which was presented at maturity to him for pa^-ment.
He refused, however, to pay it. The plaintiffs thereupon brought this
action. No direct evidence was given of the state of the market at
Pernambuco, nor as to whether it would have been possible for the
plaintiffs to have bought the whole one hundred bales of "firsts" at
the time they bought the ninety-four.

Under these circumstances, a verdict was entered for the plaintiffs
for the price of the one hundred bales, the value of tlie six bales being
taken accoi'ding to the proportion in the invoice that had been sent
with the goods. Leave was reserved to move to enter a verdict for the
defendant, on the ground that, on the facts proved, the plaintiffs were
not entitled to recover, and that there was no evidence to go to the
jury in support of any of the counts of the declaration : or to reduce
the damages by the value of the six bales of "seconds."

A rule having been obtained accordingly,

Qtffdn, Q. C, and Be»jamin, showed cause. ^ The defendant is
bound to pay for as many bales of the proper quality as were bought
on his account. The transaction is one of agency, and therefore not
governed by the same rules as a transaction between vendor and ven-
dee. The principles governing the case are those laid down in Story
on Agenc}', § 170: "The principal is not bound by the unautliorized
acts of his agent, but is bound where the authority is substantially pur-
sued, or so far as it is distinctly pursued. But the question may often
arise whether, in fact, the agent has exceeded what may be deemed the
substance of his authority. Thus, if a man should authorize an agent

1 The liability of the defendants to take the six bales was not insisted on. — Rep-

898 JOHNSTON V. KERSHAW. [CHAP. VII.

to bu3' one hundred bales of cotton for him, and he should bu\- fifty at
one time of one person, and fifty at another time of a different person ;
or if he should buy fifty only, being unable to purchase more at any
price, or at the price limited, the question might arise whether the
authority was well executed. In general, it may be answered that it
was ; because in such a case it would ordinarily be implied that the
purchase might be made at different times, of different persons, or that
it might be made of a part onl}-, if the whole could not be bought at
all, or not within the limits prescribed." Here there is no direct evi-
dence that the plaintiffs had done all they could in buying ninety-four
bales, but there are materials enough to show that the}- were unable to
do more. In Ireland v. Livingston, Law Rep. 2 Q. B. 99, the defendant
was held liable under almost exactly similar circumstances to the pres-
ent. There has been a substantial compliance with the terms of the
order ; and even granting it was not strictly executed, the defendant's
subsequent conduct, as shown by the correspondence, amounts to a
ratification. With regard to the form of the declaration, the count for
mone}' paid at all events will certainly lie.

Jones, Q. C, in support of the rule. The order is on the face of it
for one hundred bales, neither more nor less ; and in order to entitle
the plaintiflTs to maintain that it means " ;^/> to one hundred," they should
have given evidence as to the usage of the market at Pernambuco,
as was done in Ireland v. Livingston. As the case stands there is
nothing to show that a purchase of anything but the exact number of
one hundred bales was contemplated b}^ the defendant, or would be
considered a performance of the ordei*. The transaction ought not to
be treated as one of agenc}' entirel}', but as of sale ; and regarding it
in that view it could scarcely be contended that the vendee would be
bound to take a part only of the goods ordered by him.

Kelly, C. B. I am of opinion that the plaintiffs are entitled to
our judgment. The question for our consideration turns entireh' upon
the meaning to be placed upon an order from the defendant to the
plaintiflTs, contained in a letter dated the 8th of March, 1866, in these
terms : " I beg to confirm xay letter of the •23d of February, and hope
you will have executed fully all the cotton ordered, and consider still in
force. If executed, please regard this as an order for one hundred
more." Then follows a description of the sort of cotton required, and
limitations as to price. Now the question is, whether this letter neces-
sarily means an order to purchase one hundred bales of cotton at once,
in one and the same purchase, or whether it may not mean an order to
buy these one hundred bales in such manner, and at such times, as the
agent might find practicable, having regard to the state of the market.
I regret that there is no direct evidence before us of what the state of
the market was at Pernambuco, as was the case in Ireland v. Living-
ston. There is, however, in m}- judgment, enough in this case appar-
ent, from the defendant's language and conduct, to enable us to collect
that the state of the market was not such as to admit of the whole one

SECT. I.] JOHNSTON V. KERSHAW. 899

hundred bales being purchased at one and the same time. I consider
that we have materials for inferring that the mode of executing the
order contemplated by the parties was, that the agents at Pernambuco
sliould go into the market and bu}' the bales ordered, in such minor
quantities as thej- might find convenient or practicable. If they could
at one time have obtained all the one hundred bales, it would have been
their duty to have done so. But we may fairly conclude from their
conduct that they could not. They actually bought ninety-four. Surely
they would, if they could, have bought the remaining six. Not being
able to buy them, were they to leave the order altogether unexecuted?
Rather it was their duty, and was, I think, contemplated by the defend-
ant, that they should buy as many bales as they could get, and make
up the total number as soon as practicable.

The view I take of the meaning of the order is confirmed b\- the
reference to the order of the 23d of February, contained in the letter
of the 8th of March. That order was, it appears,^ also for one hundred
bales of cotton, and llie defendant in his letter expresses a hope that
it had been "fully executed." Here, tlien, is a direction by the defend-
ant to his agent at Pernambuco to buy "one hundred bales more,"
if the agent had " fully executed" tlie previous order, /. e. if they had
already bought one hundred. That implies a notion on the part of the
defendant that very likely his agents had not "fully executed" the
previous order, /. e., had onl}- bought as many of the one hundred as
they could get. I think, therefore, that, although we have no direct
evidence on the point, there is sufficient evidence to show that the state
of the market at Pernambuco was such as to render it impossible for
the plaintiffs to purchase the one hundred bales all at once, and that
the parties to the transaction must have understood that the purchase
was to be made, if necessary, in several minor quantities. The whole
question, it is true, turns on the meaning of the order, but that must
be taken with reference to the state of the market for which it was
given.

Under these circumstances, I think that this rule should be dis-
charged. I may add that it is verv satisfactory' to find that our judg-
ment is in accordance with the proposition cited during the argument
from Justice Story's work on Agenc}'.- Hide discharged}

1 The order had not been put in evidence at the trial, but it was stated to the court,
durin£^ the ars^ument, and admitted on both sides, to have been an order for one
hundred bales. — Rep.

- Martin, Channell, and Pigott, BB., concurred. The opinion of Channell.
B., has been omitted. — Ed.

3 Compare Lathrop v. Harlow, 23 Mo. 209 (1856). — Ed.

900 EECHTSCHEKD V. THE ACCOMMODATION BANK. [CHAP. VII.

RECHTSCHERD, Plaintiff in Error, v. The ACCOMMODA-
TION BANK, Defendant in Error.

Supreme Court of Missouri. 1870.

[47 Mo. 181.]

Error to St. Louis Circuit Court.

Casselberry, for plaintiff in error.

Krum & Decker .1 for defendant in error.

Wagner, J. Plaintiff brouglit his action on a certificate of deposit
for $2,600, wliich defendant, b}' its answer, admits to be due.

Defendant, in its answer, sets up a counter-claim, and states that
before the plaintiff's action accrued, the plaintiff, in consideration that
defendant would receive him into its employ as collector and agent
and pa}- him a salary of one thousand dollars per annum, promised and
agreed with defendant that he would carefully and diligently attend to
his duties as such collector and agent, and safely and prudently care
for and deliver over and account for to defendant any moneys which he
might receive into his custody as such agent and collector ; and that
defendant, relying upon such engagement and promise, did receive the
plaintiff into its employ as collector and agent, and did pay him his
said salary, and did in all things perform all the terms and conditions
of said contract on its part to be performed, but that defendant, not
regarding his said engagement and emploj'ment, failed and refused to
account for and deliver a large sum of mone}-, to wit : the sum of
02,983.06, the money of the defendant, which came into his care and
custody while in the employment of defendant as such collector and
agent, which sum of money, the property of the defendant, was, through
the fault and neglect of the plaintiff, wholly' lost to the defendant.

The plaintiff, in his replication, does not den}' the terms and condi-
tions of the contract and employment as set forth in the answer, but
avers that he has in all things complied with the same. He denies that
the sum alleged in the answer, or an}' other sum, was lost to the defend-
ant through his fault or negligence, and alleges that the money was,
without any neglect or fault on his part, taken from him by thieves,
robbers, and other persons, whilst he had the same in his possession
and was taking extraordinary care of the same for and as the agent of
the defendant, and therefore he was not liable for the same. The cause
was tried at Special Term before a jury, who, after hearing the evidence
and being instructed by the court, rendered a verdict for the plaintiff.
Upon appeal to General Terra the judgment was reversed and the
cause remanded for a new trial, and from this judgment the case is
brought here by writ of error.

If the money was taken from the plaintiff by thieves or robbers when
he was using ordinary care and guilty of no negligence, he was clearly
not liable. But this was a question of fact for the jury to determine

SECT. 1.] RECHTSCHERD V. THE ACCOMMODATIOX BANK. 901

upon proper instructions. There was soraetliing said in the argument
(and it is alhided to in the record; about inconsistent instructions being
given to the plaintiff in the transaction of his business, by the cashier
and the note clerk, two of the defendant's officers. Whether the note
clerk had any authority to give the orders, or it was the duty of the
plaintiff to obey, was not very clearly developed in the evidence, and
should be rendered more apparent.

The first instruction given for the plaintiff is on the subject of con-
tributory negligence, and, although not objectionable as a proposition
of law, is hardly justified by the evidence. Of its own motion, the
court instructed the jury that the plaintiff, as collector for the defendant,
was bound to use such care as men of ordinary prudence would have
used under like circumstances; if, therefore, the plaintiff used such
care in doing the business of the defendant, he was not guilty of negli-
gence, unless he disregarded reasonable instructions given to him by
defendant or its authorized agents.

The following instruction asked by the defendant was refused:
" Although the jury may believe from the evidence that the moneys in
controversy- in the counter-claim were taken from the plaintiflT by thieves
or robbers, yet the plaintiff is not excused from liability to the bank on
that account, if the jury find that such loss by theft or robbery was
occasioned b}- the failure of the plaintiff to obe^- the instructions given
to him b}' the said Accommodation Bank or any of its officers thereto
authorized."

It will be perceived that the view of the court was, that in order to
render the plaintiff responsible for disregarding the instructions of the
principal, those instructions must be reasonable ; whilst the instruction
asked b^' the defendant asserted the absolute right of the principal to
give whatever instructions it saw proper, and the dut}- of the agent to
obe}-. We suppose that there is no doubt about the established rule at
law, that an agent is bound to execute the orders of his principal when-
ever, for a valuable consideration, he has undertaken to perform them,
unless prevented bj- some unavoidable accident, without any default on
his part, or unless the instructions require him to do an illegal or im-
moral act ; and it is no defence that he intended to act for the benefit
of his principal. He is still responsible for loss occasioned bj- anj- vio-
lation of his duties, either in exceeding or disregarding instructions.
Switzer v. Connett, 11 Mo. 88; Storj- on Agencj-, § 192; Hays v.
Stone, 7 Hill, 128 ; Wilson v. Wilson, 26 Pa. 394.

It is the duty of the agent to adhere faithful!}' to the orders of the
principal, and if a loss occurs in consequence of his voluntar}' deviation,
he will not be held faultless. It is true that instructions may be disre-
garded in cases of extreme necessity arising from unforeseen emergen-
cies, or if performance becomes impossible, or if they require a breach
of law or morals. Stor}' on Agenc}', § 194. These are, however, ex-
ceptional cases. But the general rule is as indicated in what has been
said above, and the case as made in the record is not brought witliia

902 COHEN V. KITTELL, [CHAP. VII.

any of the exceptions. I think, therefore, that the instruction given
by the court of its own motion was objectionable, and that the instruc-
tion asked by the defendant should have been given.

Judgment affirmed }■
The other judges concur.

COHEN V. KITTELL.
Queen's Bench Division. 1889.

[22 Q. B. D. 680.]

Appeal from the Mayor's Court. The action was brought by the
plaintiff to recover the sura of £27 13s. &d. either as money had and
received by the defendant to the plaintiff's use, or as damages for
breach of contract by the defendant as the plaintiffs agent.

It appeared that the defendant was a turf commission agent, who
undertook to bet for customers for a commission of 2| per cent on
winnings. The particulars of the claim consisted of an account showing a
number of bets of amounts not exceeding £5, which the plaintiff alleged
that the defendant had made or agreed to make on his behalf on these
terms on horses which ran at Sandown Park and Newmarket races
in October, 1888. The sum claimed was the excess of gains over
losses shown by this account, after deducting the defendant's commis-
sion of 2^ per cent on the former. The assistant judge left the case to
the jury as regards the claim for damages, and the}' found a verdict for
the plaintiff for the full amount claimed. The grounds of appeal were

1 In Switzer v. Counett, 11 Mo. 88, 91 (1847), McBride, ,T., for the court, said:
" Suppose I ride to town and put my ln)rse in a livery-stable, and whilst there the
keeper of the stable tells me that there is an individual in the town who is purchasing
horses, and that my horse answers the description which he wishes to purchase, and
inquires if he may sell him my horse. I reply he may, provided he can get $100 for
the horse. On my return to the stable he offers me $80, stating that he sold my
horse for that sum, and that it is the fair market value of the horse. M<ay I not
have an action against him to recover the price fixed by me on my horse ? If it be
my right or privilege to place a value upon my own property, I certainly can do so,
even should the price thus fixed by me exceed the market value."

In Wilson v. Wilson, 26 Pa. 393 (1856), Lewis, C. J., for the court, said: "It ia
not sufficient that the deviation was not material if it appear that the party giving
the instructions regarded them as material, iinless it be shown affirmatively that the
deviation in no manner contributed to the loss. This may be a difficult task in a case
like the present ; but the defendant voluntarily assumed it when he substituted his
own plan for that prescribed by the plaintiff."

And see Short v. Skipwith, 1 Brockenbrough, 103 (1806) ; Williams v. Higgins,
30 Md. 404 (1868).

As to the doctrine that an emergency may justify a departure from instructions,
Bee Forrestier v. Bordman, 1 Story, 43, 51 (1839); Greenleaf v. Moody, 13 Allen, 363
(1866).— Ed.

SECT. I.] COHEN V. KITTELL. 903

that the action was not maintainable, and that, if otherwise, the plaintiff
was not entitled to more than nominal damages.

Candy^ Q. C. (Ilerbert Reed with him), for the defendant.

Wildey Wright {McCulhigh with him), for the plaintiff.

HuDDLESTON, B. I am of opinion that this appeal should be allowed.
The plaintiff claims damages from the defendant for the breach of a
contract of agency, into which he is alleged to have entered with the
plaintiff as his principal. It must be taken as found by the verdict,
that the plaintiff employed the defendant to make certain bets on his
account, and that the defendant did not make the bets which he was
thus employed to make. The case is apparently new. Certainly the
recent cases arising out of similar transactions do not apply, as they are
cases in which the agent did make the bets.

Suppose the agent had done so here, what would have been his posi-
tion? In that case, had he won and been paid, Beeston r. Beeston.
1 Ex. D. 13, and Bridger v. Savage, 15 Q. B. D. 363, show that he
must have paid the money over to the plaintiff. Had he lost and paid,
Read v. Anderson, 15 Q. B. D. 779, in my opinion shows that the
plaintiff must have recouped him. On the other hand, if he had won,
but the third persons had not paid him, the effect of 8 & 9 Vict. c. 109,
§ 18, must have been to leave him without an}- legal remedy. That
section enacts " that all contracts or agreements, whether b}' parol or
in writing, b}- way of gaming or wagering, shall be null and void ; and
that no suit shall be brought or maintained in any court of law or equity
for recovering any sum of money or valuable thing alleged to have been
won upon an}- wager." The contract of agency, therefore, for the
breach of which the plaintiff sues the defendant, is one b}- which the
plaintiff employed the defendant to enter into contracts which, if made,
would have been null and void, and the performance of which could not
have been enforced by an}- legal proceeding taken by the defendant for
the benefit of the plaintiff. The breach of such a contract by the agent
can give no right of action to the principal. I see no difference between
the case and the emplo3-ment of an agent to do an illegal act The
section of Stor}- on Agency, which has been cited, shows that the right
of the plaintiff to have recovered in respect of the contract to have been
made b}' the agent on his behalf is an "essential ingredient" in the
case against the agent for negligence in not contracting. In this case
this "essential ingredient" is wanting, and Webster;'. De Tastet, 7
T. R. 157, shows that, this being so, the consideration urged on behalf
of the plaintiff, that the losers of the bets to the defendant would
probably have paid them as debts of honor, is wholly immaterial.

Manisty, J. A decision in favor of the plaintiff in this case would
still further defeat the object of this statute, which, as the preamble
shows, was to add to the strictness of the law with respect to gambling.
Since the act passed, however, and in consequence, as I cannot but
tliink, of some of the decisions upon it, the practice which it was in-
tended to discountenance has greatly increased, and that with results

904 TENANT V. ELLIOTT. [CHAP. VIL

of a most disastrous character, as regards both horseracing and trans-
actions in stocks. The contracts avoided by the 18th section are not,
it is to be observed, " contracts of gaming and wagering," but " con-
tracts by tcay q/' gaming and wagering." These words, which are per-
haps capable of a different interpretation, have been held not to apply
to contracts between principals and agents by which the agents agree
to bet with third persons on behalf of the principals. Doubtless where
the gambling transaction is a thing of the past, the bet having been
won or lost, and the money having been received or paid, as tlie case
may be, by the agent, it would be unjust that he should not in the one
case account to, and in the other case be recouped by his principal.
But in Read u. Anderson, it was held by a majority of the Court of
Appeal that as soon as a bet has been made by an agent in his own
name on account of a principal, the principal cannot revoke the authority
to pay the bet should it be lost, because forsooth the result to the agent
may be the inconvenience of exclusion from Tattersall's. The decision
is, of course, binding on this court, but I personallj- agree with the
dissenting judgment of the Master of the Rolls. I cannot see why the
position of the agent in such a case should differ from that of a
stakeholder.

We are now invited to go a step further and to hold that a principal
who employs an agent to make bets on his account, can maintain an
action for negligence against the agent should the latter I'efuse to bet
for him. The custom of Tattersall's is again invoked, this time to make
the agent responsible. It is clear, however, that the action cannot be
maintained. It is unnecessary' to refer at length to the legal question,
which is discussed in Story on Agency, 7th ed., §§ 222, 330. It is
sufficient to say that the effect of Statute 8 & 9 Vict. c. 109, § 18, being
to render bets irrecoverable at law, a principal can suffer no real loss
through the refusal of his agent to make bets on his account.

Appeal allowed.

SECTION II.

Loyalty,

TENANT V. ELLIOTT.

Common Pleas. 1797.

[1 fi. ^P. 3.]

Assumpsit for money had and received. Verdict for the plaintiff.

The defendant, being a broker, effected an insurance for the plaintiff,
a British subject, on goods from Ostend to the East Indies, on board
the " Koenitz," an Imperial ship. The ship being lost, the under*

SECT. II.] TENANT V. ELLIOTT. 905

writers paid the amount of the insurance to the defendant, who, with-
out any intimation from them to retain the money, refused to pa}' it
over to the plaintiff.

iS/iephtrd^ Serjt. , now moved for a rule to show cause wh^' the ver-
dict in this case should not be set aside, and a nonsuit entered. By
7 Geo. 1, St. 1, c. 21, § 2, it is enacted "That all contracts and
agreements whatsoever made or entered into b\' an}' of his Majesty's
subjects, or any person or persons in trust for them, for or upon the
loan of any moneys b}' way of bottomry on an}' ship or ships in the
service of foreigners, and bound or designed to trade in the East
Indies, or parts in the said act before mentioned ; and all contracts
and agreements whatsoever made by any of his Majesty's subjects, or
any person or persons in trust for them, for the loading or supplying
any such ship or ships with a cargo or lading of any sort of goods,
merchandise, treasure, or effects, or with any provisions, stores, or
necessaries, shall be and are hereby declared to be void." Now the
goods on board the "• Koenitz " being the property of the plaintiff, a
subject of Great Britain, and the "Koenitz" being a foreign ship,
bring this transaction within the provisions of the above act. In Cam-
den V. Anderson, 6 Term Rep. 730, it was determined that a policy
effected in contravention of an act of Parliament, made for the purpose
of protecting tho monopoly granted to the East India Company, was
void. The voyage, being illegal, makes the policy illegal also. If, then,
the plaintiff could not have succeeded in an action against the under-
writers, neither can he recover against the present defendant. The
defendant is in the nature of a stakeholder ; and the plaintiff's right of
action being grounded on his claim against the underwriters, he must
now stand precisely in the same situation as if he had immediately
sued them.

BuLLKH, .J. Is the man who has paid over money to another's use
to dispute the legality of the original consideration? Having once
waived the legality, the money shall never come back into his hands
again. Can the defendant then in conscience keep the money so paid?
For what purpose should he retain it? To whom is he to pay it over,
who is entitled to it, but the plaintiff ?

Eyre, C J. The defendant is not like a stakeholder. The question
is whether he who has received money to another's use on an illegal
contract can be allowed to retain it, and that not even at the desire of
those who paid it to him ? I think he cannot.

The defendant took notJdng hy his motion}

' In Baldwin r. Potter, 46 Vt. 402 (1874), the plaintiffs put up packages containing
candy and prizes, and employed the defendant to sell on commission Loxes of such
packages. The defendant made sales to persons who knew what prizes were contained
in each hox, and who, as the plaintiffs and defendant knew, intended to sell the pack-
ages at retail in defiance of statutes prohibiting lotteries. It was held that for the
purchase-money received hy the defendant the plaintiffs could maintain an action in
general assumpsit. Pierpoint, C. J., for the court, said : " We do not find it neces-
sary ... to consider . . . whether the contract for the sale of the property referred

506 TENANT V. ELLIOTT. [CHAP. VIL

to, by the plaiutiffs, to the several persons who purchased it, were contracts made in
violation of law, and therefore void, or not. 1'his action is not between the parties to
those contracts : neither is it founded upon, or brought to enforce them. If tiiose
contracts were illegal, the law will not aid either party in respect to them ; it will not
allow the seller to sue for and recover the price of tiie property sold, if it has not been
paid ; if it has been paid, the purchaser cannot sue for and recover it back. The facts
in this case show that the purchasers paid the money to the plaintiffs, — not to the
plaintiffs personally, but to the defendant as the agent of the plaintiffs, authorized to
receive it. When the money was so paid, it became the plaintiffs' money ; and when
it was received by the defendant as such agent, the law, in consideration thereof, im-
plies a promise on the part of the defendant to pay it over to his jjrincipals, the plain-
tiffs. It is this obligation that the present action is brought to enforce : no illegality
attaches to this contract. But the defendant insists that, inasmuch as the plaintiff
could not have enforced the contracts of sale as between himself and the purchaser,
therefore, as the purchaser has performed the contracts by paying the money to the
plaintiffs through me, as their agent, I can now set up the illegality of the contract of
sale to defeat an action brought to enforce a contract on my part to pay the money
that I as agent receive, over to my principal. In other words, because my principal
did not receive the money on a legal contract, I am at liberty to steal the money, ap-
propriate it to my own use, and set my principal at defiance. We thiuii the law is
well settled otherwise; and the fact that the defendant acted as the agent of the
plaintiffs in obtaining orders for the goods does not vary the case."

In Bridges v. Savage, 15 Q. B. D. 363 (C. A. 1885), Brett, M. R., said: "The
plaintiff employed the defendant to make bets for him, and if he should win on those
bets to receive the money payable thereon, and to pay the same over to him, the
plaintiff; and the defendant for a consideration, viz., the commission which he
charged, agreed to do so. The defendant tliercupon made bets on certain horses.
It is true that when he won on those bets the persons with whom he made them
might not have paid ; but they did pay, and therefore after that any dispute as to
their validity was gone. Tlie matter, therefore, stands thus : the defendant has re-
ceived money which he contracted with the plaintiff to hand over to him when he had
received it. That is a perfectly legal contract." And Bowen, L. J., said : " It is to
be observed that the original contract of betting is not an illegal one, but only one
which is void. If the person who has betted pays liis bet, he does nothing wrong ; he
only waives a benefit which the statute has given to him, and confers a good title to
the money on the person to whom he pays it. Therefore when the bet is paid the
transaction is completed ; and when it is paid to an agent, it cannot be contended that
it is not a good payment for his principal. If not, how monstrous it would be that the
agent, who lias received money which belongs to his principal, and which he received
for his principal, and only on that account, should be allowed to say that the payment
was bad and void. The truth is that the contract under which he received the money
for his principal is not affected by the collateral contract under which the money was
paid to him."

And see Farmer i: Russell, 1 B. & P. 296 (1798) ; Armstrong i'. Toler, 11 Wheat.
258, 271 (1826); Sharp v. Taylor, 2 Phil. 801 (1849); Brooks v. Martin, 2 Wall. 70
(1863).

Compare Snell v. Dwight, 120 Mass. 9, 15-19 (1876).

See also Biddle u. Bond, 6 B. & S. 225 (1865). — Ed.

SECT. II.] THOMPSON V. HAVELOCK. 907

THOMPSON V. HAVELOCK
Nisi Prius. 1808.

[1 Camp. 527.]

This was an action for mone}' had and received.

In April, 1800, tlie plaintiff was at Smj-rna as captain of the ship
"Lord Nelson," of which the defendant was owner. There he en-
tered into an agreement with the deput}- commissar\- of the English
army in Egypt, to let the ship to government for six months. Having
stipulated that his owner should have 4:0s. per ton per month, he re-
quired that he himself should be allowed the usual primage. The
commissary refused to make an}' allowance b}' wa}' of primage, the
freight being so very high ; but, as he expected great assistance from
the plaintiiT's skill and activit}- in managing the transport service in
that quarter, he agreed, that instead of primage. Captain Thompson,
for his personal exertions in the public service, should be allowed Is.
per ton per month upon the tonnage of the "Lord Nelson." The
plaintiff and the ship remained in the Mediterranean under this con-
tract about nine months ; and the defendant afterwards received from
government the mone}- which they had thus earned. The question was,
whether the plaintiff as captain, or the defendant as owner of the ship,
was entitled to the Is. per ton per month. On the part of the plaintiff
it was proved that, by the usage of the Mediterranean trade, if he had
brought home a cargo of merchandise from Smvrna (which he was
about to do when he entered into tlie service of government) , he would
have been entitled to a primage of £5 per cent, upon the freight, and
that while he continued in the service of government, his personal
exertions, independent!}- of the ship, were of considerable benefit to
the public.

Lord Ellenborough. Is it contended that a servant who has en-
gaged to devote the whole of his time and attention to my concerns, may
hire out his services, or a part of them, to another? It would have been
a different thing if the owner had been suing for this money ; but I am
clearly of opinion that at all events the present plaintiff' has no right
to it. Lender this contract, he must have been taken from superintend-
ing the defendant's ship ; and I don't know how far it might go, if such
earnings could be recovered in a court of justice. No man should be
allowed to have an interest against his duty. I will assume that the
plaintiff obtained as high a freight as possible for his owners, and that
his services to government were meritorious. Still there would be no
security in any department of life or of business, if servants could
legally let themselves out in whole or in part. My opinion upon the
subject is quite decisive ; and if it be doubted, I beg that a bill of
exceptions may be tendered.

908 ROBINSON V. MOLLETT. [CHAP. VII.

Tlie plaintiff's counsel acquiesced in this decision ; and, upon the
recommendation of the chief justice, it was agreed that the defendant
should make the plaintiff an allowance for primage.^

ParJc and Abbott for the plaintiff.

The Attornej'-Geueral, Garrotc, and Marryat for the defendant

ROBINSON, Appellant, v. MOLLETT and others,
Respondents.

House of Lords. 1875.

[L. R. 7 H. L. 802.]

This was an appeal against a judgment given in the Court of Com-
mon Pleas for the plaintiffs (now the respondents) on a case stated,
which judgment, through an equal division of opinion among the
judges in the Exchequer Chamber, had stood affirmed.

Robinson was a merchant at Liverpool ; MoUett, Bull, & Unsworth
were tallow brokers in London. On the 2d of April, 1869, Unsworth
was in Liverpool and saw Robinson, who then gave him an order to
purchase for him (Robinson) 50 tons of tallow at 46s. Qd. On the
29th of April Robinson sent up from Liverpool an order to MoUett &
Co. to purchase for him 200 tons of tallow (100 tons for himself, 100
tons for a friend), to book the whole to him, and to make the purchase
(not at a specified price, but) on the " best terms." The two orders
were for the June delivery.

Mollett & Co. had before bought, and did afterwards bu}', from
various persons considerable quantities of tallow, none specifically for
Robinson, but proposed to suppl}' the whole 250 tons, at the June
deliveiy, out of their various purchases. In their bought notes, sent
immediately after each of Robinson's orders had been given, Mollett
& Co. said, "We have this day bought for 3'our account," and signed
these notes with the addition of the words, " Mollett, Bull, & Uns-
worth, sworn brokers." The price of tallow fell in the market between
the dates of the orders and the time for the June delivery. When
that time arrived, Mollett & Co. tendered 250 tons of tallow, but
Robinson refused to accept the tallow so tendered. Mollett & Co.
sold the tallow, and then brought assumpsit to recover the difference,
which amounted to £362, insisting that the}- were entitled to do so in
virtue of the established usage of the London tallow market.

The first count of the declaration alleged that the defendant em-
ployed the plaintiffs as his agents and brokers to purchase the tallow,

^ See Co. Lit. 117 (a), Hargrave's note (1).

See also, Diplock v. Blackburn, .3 Camp. 43 (1811).

Compare ^tna Ins. Co. v. Church, 21 Ohio St. 492, 498 (1871). — Ed.

SECT. II.] ROBINSON V. MOLLETT. 909

and undertook to accept and pay for the tallow according to the con-
tract, and would indemnify the plaintiff against liability or loss the}*
might sustain by having made the contract for the defendant ; that the
plaintiffs did, in pursuance of tlie said empioyment, and upon
the terms thereof, purchase the tallow. Averment of performance of
all the conditions. Breach, that the defendant refused to accept,
whereby plaintiffs sustained damage by reason of the price of tallow
having fallen, etc., and defendant refused to indemnify the plaintiffs.

The second count alleged an agreement between the plaintiffs and
the defendant, that the plaintiffs should sell to him, and that he should
buy and accept from them, the tallow, etc. , and stated the sale by the
plaintiffs to the defendant, and the refusal to accept; and then there
were a count for goods bargained and sold and the money counts.

The defendant traversed all tlie allegations in the first and second
counts, and then pleaded exoneration, and discharge, never indebted,
payment, and set-off. Issue thereon.

The cause was tried before Lord Chief Justice Bovill at the Lon-
don sittings after Michaelmas, 1869, when it appeared that the plaintiffs
and defendant had had several dealings together on former occasions ;
that the course which the plaintiffs had pursued on this occasion
(though tW defendant was not shown to have known the fact) was
that v^^hich they had ordinaril}' pursued in their dealings ; that in these
cases the principals' names were not disclosed on either side ; and that
by these notes the plaintiffs became bound personally to the sellers for
the fulfilment of the contracts.

The 14th paragraph of the case stated that "settlements of trans-
actions in tallow are usuall}- made in London in the months of April,
May, and June respectively, and on the Maj' settlement Messrs. Simp-
son & Co., persons from whom the plaintiffs had bought some of the
tallow intended to be supplied to the defendant, failed, and were unable
to meet their engagements. Thereupon the plaintiffs and Simpson &
Co., having many transactions together outstanding in respect of the
sale and purchase of tallow, balanced and settled an account thereof,
wherein the quantity of tallow sold was set off against the quantity of
tallow purchased b}' the plaintiffs on account of Simpson & Co.,
whereby it appeared that the plaintiffs had sold between 100 and 200
tons more than they had purchased on that account."

The defendant admitted that the tallow tendered was in accordance
with the contracts.

The 29th paragraph of the case was in these terms: "At the trial
it was proved that there exists an established custom in the London
tallow trade for brokers, when they receive an order from a principal
for the purchase of tallow, to make a contract or contracts in their
own names without disclosing their principals, and also to make such
contracts either for the specific quantity of tallow so ordered, or to
include such order with others the}' maj' have received in a contract for
the entire quantitj^, or in any quantities at their convenience, at the

910 KOBINSON V. MOLLETT. [CHAP. VIL

same time exchanging bouglit and sold notes with the selling brokers
as above described in the present case, and passing to their principals
a bought note for the specific quantit}- ordered by them, as before
described in this case,- and that when a broker so purchases in his own
name he is personal!}' bound by the contract, and that on the usual
settling-days the brokers balance between themselves the purchases
and sales so made, and make or receive deliveries to or from their
principals, as the case may be, or if their principals refuse to accept
or deliver, then to sell or bu}' against them, as the case may be, and
charge them with the loss, if any, or if delivery is not required on
either side, then any difference which ma}' arise from a rise or fall in
the market is paid by the one to the other. This custom does not
exist at Liverpool, and was unknown to the defendant. The whole of
the transactions and dealings in the present case were carried out in
accordance with this custom."

A verdict was taken for the plaintiffs for £362, subject to leave
reserved to enter a nonsuit. The case was afterwards argued, and the
judges differed in opinion, Lord Chief Justice Bovill and Mr. Justice
Montague Smith being of opinion that the plaintiffs were entitled
to have the verdict entered for them, and Mr. Justice Willes and Mr.
Justice Keating being of opinion that a nonsuit ought to be entered.
L. R. 5 C. P. 646. On appeal, the judges in the Exchequer Chamber were
also equall}' divided in opinion, L. R. 7 C. P. 84, and so the judgment
of the court below stood affirmed. This appeal was then brought.

The judges were summoned, and Mr. Justice Blackburn, Mr. .Justice
Mellor, Mr. Justice Brett, Mr. Baron Cleasbt, Mr. Justice Grove,
and Mr. Baron Amphlett attended.

Mr. Cohen, Q. C. {Mr. C. F. Butt, Q. C, and Mr. IT. Davidson
were with him), for the appellant Robinson.

Mr. Benjamin, Q. C, and Mr. Watkin Williams, Q. C, for the
defendants in error.

The Lord Chancellor proposed the following question to the
judges : Whether the judgments of the Courts of Common Pleas and
Exchequer Chamber were right?

Mellor, J. The further consideration of this case, and the argu-
ment addressed to your lordships by the learned counsel at the bar,
have failed to convince me that the opinion which I expressed in the
Court of Exchequer Chamber, L. R. 7 C. P. 99, is erroneous.

Indeed, I feel more strongly- than I there expressed myself, as to the
mischievous consequences likely to result from permitting evidence of
usages to be admitted beyond the limit already prescribed by decided
cases, and I have alwaj's understood that limit to be, that such evi-
dence is admissible onl}' to explain mercantile expressions and to add
incidents, or to annex usual terms and conditions which are not in-
consistent with the written terms between the parties. Brown v. Byrne,
3 El. & Bl. 703-715 ; Humfrey v. Dale, 7 El. & Bl. 266, 274,"^ and

SECT. II.] ROBINSON V. MOLLETT. 911

that it cannot be admitted to convert a broker employed to buy for
his employer, into a principal to sell to him, unless in cases where
the person employing the broker knows and assents to the deal-
ing on the footing of such custom. The custom with regard to
the mode of buying and selling is described in the case, and I sub-
mit, with deference to your lordships' consideration, that it would be
difficult to conceive any practice or custom of a market so opposed to
the well-understood character and authority' of a broker. In the lan-
guage of my brother Ilannen, in the court below, L. R. 7 C. P. 98 :
" It appears to me to amount to a custom for a broker in the tallow
trade in London, to do soraetliing entirely- inconsistent with the char-
acter of a broker, viz., to convert himself, from an agent to buy for
his employer, into a principal to sell to him."

In the present case the mode in which the contract is said to have
been performed was not by purchasing 50 tons of tallow on account of
the appellant, or actually appropriating to him 50 tons from the larger
purchase made by the respondents from Simpson & Co. as stated in the
case, but, in fact, the respondents did no more than form an intention
to appropriate 50 tons out of tlie 150 tons so purchased by them from
Simpson & Co., but which, according to the usage set out, would, as
stated by my brother Cleasbv, L. R. 7 C. P. 95, " only form an item in
the tallow account between Simpson & Co. and the i^laintiff."

By this course of dealing the defendants would lose the responsi-
bility of an}' other " principal " than his " broker."

It is said by Willes, J., in his judgment in the Court of Common
Pleas, L. R. 5 C. P. 655, that " it is an axiom of the law of principal
and agent that a broker employed to sell cannot himself become the
buyer, nor can a broker employed to buy become himself the seller,
without distinct notice to the principal, so that the latter ma}- object if
he think i)roper ; a different rule would give the broker an interest
against his duty."

I agree in this, and think that although a custom of trade may con-
trol the mode of performance of a contract, it cannot change its
intrinsic character.

My experience as a judge convinces me of the necessity of keeping
within strict limits the shifting, varying, and constantly expanding
usages, by which it is sought to change or affect the written terms of
contracts of this description.

A person who authorizes a broker to buy in a market the usages ot
which are not known to him, may reasonably expect to find that the
mode of dealing in that market may not be in all respects such as he
would anticipate, but he can hardly be supposed to contemplate thot
the univorsjil acceptance of the nature and dealing of a broker to buy
for him will be converted into a principal to sell to him.

As the usage in question appears to me wholly inconsistent with the
written terms between the parties, I answer your lordships* question

912 ROBINSON V. MOLLETT. [CHAP. VII.

by sa3'ing that in ray opinion the judgments of the Courts of Common
Pleas and Exchequer were not right and ought to be reversed.^

Lord Chelmsford. My Lords, the great difference of judicial opin-
ion in this case has led to the extraordinary- result of there being
bothing but a formal judgment given in both the courts below.^ . . .

In the arguments and in the judgments in this case, it seems to
have been taken for granted that the custom applies in the case of a
single transaction of a broker buying in the market upon the order of
a principal. But upon a careful examination of the terms of the
custom as stated, it appears to me that it merely regulates the deal-
ings of brokers amongst themselves, in buying and selling as principals,
and the mode of adjusting and settling accounts with each other, and
that no part of it is applicable to the ordinar}' employment of a broker
engaged to bu}- for a real principal.

Assuming, however, that the custom would have applied in the
present case if it had been known to the appellant at the time of era-
plo3'ing the respondents as his brokers, the question arises whether it
is of such a nature as to be binding on a person who is ignorant of its
existence, by merely employing a broker to buy for him in the market
where the custom prevails.

The effect of this custom is to change the character of a broker, who
is an agent to buj' for his employer, into that of a principal to sell to
him. No doubt a person employing a broker ma}' engage his services
upon any terms he pleases ; and if a person employs a broker to trans-
act for him upon a market with the usages of which the principal is
unacquainted, he gives authority to the broker to make contracts upon
the footing of such usages, provided the}' are such as regulate the
mode of performing the contracts, and do not change their intrinsic
character. It was not contended in the present case that if the re-
spondents were employed in the ordinary character of brokers, thej
had performed their duty to their employer. Of course, if the appel-
lant knew of the existence of the usage, and chose to employ the
respondents without any restriction upon them, he might be taken to
have authorized them to act for him in conformity to such usage. . . .

I submit to your lordships, that the judgments of the Common Pleas
and of the Exchequer Chamber ought to be reversed, and the judg-
ment entered for the defendant Robinson.'

Judgment of the Court of Exchequer Chamber reversed^
and judgment entered for the defendant.*"

1 Brett, J., Cleasbt, B., and Grove, J., also gave opinions for reversal.
Blackburn, J., gave an opinion for affirmance. Amphlett, B., also dissented

— Ed.

2 From this opinion have been omitted passages stating and discussing the
facts. — Ed.

^ The Lord Chancellor (Lord Cairns), Lord Hatherley, and Lord O'Hagan
concurred without giving formal opinions. — Ed.

* On the question whether an agent can ever sell his own property to his principal,

SECT. II.] BELL V. McCONNELL. 913

BELL V. McCONNELL.
Supreme Court of Ohio. 1881.

[37 Ohio St. 396.]

Error to the District Court of Mahoning County.

The original action was brought by Arthur B. McConnell, a real-
estate broker, to recover certain commissions claimed to have been
earned in making an exchange for the defendants, William Bell and
others, now plaintiffs in error, of certain real estate, to wit, certain
city lots, with one Augustus Neal, for certain other real estate, upon
terms satisfactory to the defendants, upon an express agreement for
commissions at the rate of three per cent of the value of the property
exchanged.

Tlie defendants, by answer, among other things, alleged that, before
the alleged employment by the defendants, the plaintiff had been em-
ployed by said Neal to sell or exchange a certain farm of said Neal,
to wit, the same property given in exchange to defendants, upon such
terms as might be approved, for an agreed compensation at the rate of
four per cent of the value thereof; and that, at the time said exchange
was effected, said Neal had no knowledge or information of the alleged
employment of the plaintiff by defendants.

The plaintiff, by reply, alleged, in effect, that said Neal, at the time
said exchange was negotiated, had knowledge of his employment by
the defendants.

On the trial testimony' was offered b}- each part}- tending to prove
the issue in accordance with the respective allegations ; and there-
upon the plaintiff requested the court to charge the jury as follows :

"That if the jur}- find from the evidence that said defendants em-
plo\-ed said plaintiff to act as their agent in the exchange of the
propert}' mentioned and described in the petition for the farm of Mr.
Neal, located in said township of Boardman, or emploj'ed him to aid
and assist in such exchange, and agreed to pay him three per cent
commission on said propert}', and at the same time knew that said
plaintiff was the agent of said Neal for the sale or exchange of said
farm, and that he was acting as his agent, and that said defendant
assented thereto and agreed to pay said commission, and that said
Neal knew that said plaintiff was acting agent of said defendant in

see Rothschild i*. Brookman, 2 Dow & Clark, 188 (1831); Gillett v. Peppercorne,
3 Beav. 78 (1840) ; Conkey v. Bond, 36 N. Y. 427 (1867).

On the question whether the agent can ever become tlie purchaser of property en-
trusted to him by his principal, see Lowther v. Lowther, 13 Ves. Jr. 9.0, 103 (1806) ;
Rothschild r. Brookman, 2 Dow & Clark, 188 (1831) ; Kerfoot v. Hyman, .52 111. 512
(1869) ; Ruckman v. Berf^holz, 37 N. J. L. 437 (1874) ; Bain v. Brown, 56 N. Y. 285
(1874) ; De Bu.ssche v. Alt, 8 Ch. D. 286 (C. A. 1878) ; Porter v. Woodruff, 36 N. J.
Eq. 174 (1882); Jansen v. Williams, 36 Neb. 869 (1893).-Ed.

914 BELL V. McCONNELL. [CHAP. VIL

said exchange, and assented thereto, and agreed to pa}' said plaintiff
the commission stipulated in the written contract of agency, said plain-
tiff would be entitled to recover in this case," but the court refused to
charge the jury as above requested, and did charge as follows:

" That if you find that Neal employed plaintiff to sell or exchange
his farm in Boardman for cash or property, and agreed to pa}' him for
such services, and if while so employed, defendant Bell and others
emplo3'ed plaintiff to find a purchaser for their (defendants') city prop-
erty, or one who would exchange country property for it, and if plain-
tiff's dut}' was simply to bring the buyer and seller together, and for
that service defendants agreed to pay plaintiff a fixed amount, and if
plaintiff performed that service tlie defendants are bound in law to pay
said amount so fixed, even though plaintiff was acting as agent for the
party — in this case Neal — so introduced.

" But I sa}' to you, if the contract between plaintiff and defendants
was, that plaintiff should sell for, or assist the defendants in selling
or exchanging their propert}', and did so sell or exchange defendants'
property, or assist them in selling it to, or exchanging it with said
Neal, while he was also acting for Neal, or assisting him in the same
sale or exchange, under a contract with said Neal for pay on the part
of said Neal for such service so rendered him, then plaintiff is not
entitled to 3'our verdict in this case, even though both Bells and Neal
were aware of, and assented to said plaintiff's employment and acts in
the premises."

Exceptions were taken to the refusal to charge as requested and to
the charge given.

Verdict and judgment were rendered for the defendants. On petition
in error the judgment of the Court of Common Pleas was reversed, and
this proceeding is prosecuted to reverse the judgment of reversal.

Ji. B. Murray, for plaintiff in error.

George F. Arrel, for defendant in error.

McIlvaine, J. This case presents the single question : Can a real-
estate broker, who assumes to aid both contracting parties in making
an exchange of real estate, recover compensation for his services from
either, upon an express promise to pay, in a case where each principal
had full knowledge of and assented to the double employment ?

It has been decided (Rupp v. Sampson, 16 Gray, 398, and Siegel v.
Gould, 7 Lans. 177), and is not doubted, that such broker may re-
cover from both or either where his employment was merely to bring
the parties together; and it is equally clear, both upon principle and
authority, that in case of such double employment he can recover from
neither, where his employment b}' either is concealed from or not as-
sented to b}- the other. Several reasons maj' be given for this rule.
In law, as in morals, it ma}' be stated that, as a principle, no servant
can serve two masters, for either he will hate the one and love the
other, or else he will hold to the one and despise the other. Luke
xvi. 13. Unless the principal contracts for less, the agent is bound

SECT. II.] BELL V. McCONNELL. 915

to serve him with all his skill, judgment, and discretion. The agent
cannot divide this duty and give part to another. Therefore, b}- en-
gaging with the second, he forfeits his right to compensation from the
one who first employed him. By the second engagement, the agent,
if he does not in fact disable himself from rendering to the first em-
ployer the full quantum of service contracted for, at least tempts him-
self not to do so. And for the same reason he cannot recover from
the second employer, who is ignorant of the first engagement. And
if the second employer has knowledge of the first engagement, then
both he and the agent are guilty of the wrong committed against the
first employer, and the law will not enforce an executory contract en-
tered into in fraud of the rights of the first employer. It is no answer
to say that the second employer having knowledge of the first emplo}--
ment should be held liable on his promise, because he could not be
defrauded in the transaction. The contract itself is void as against
public policy and good morals, and both parties thereto being m pari
delicto, the law will leave them as it finds them. Ex dolo mulo non
oritur actio.

The non-liability of the second employer having knowledge of the
-first employment has been maintained in the following cases: Farns-
worth y. Hemmer, 1 Allen, 494; Walker v. Osgood, 98 Mass. 348;
Smith y. Townsend, 109 Mass. 500; Rice v. Wood, 113 Mass. 133;
Bollman v. Loomis, 41 Conn. 581 ; Everhart v. Searle, 71 Pa. St. 256 ;
Morrison v. Thompson, 9 Q. B. (L. R.) 480. But in each of these
cases it is strongly intimated, if not distinctly announced, that a re-
covery may be had hy such agent, when he acted with the knowledge
and consent of both principals. In Lynch v. Fallon, 11 R. I. 311, the
same general doctrine is held, and it is said that a broker acting at
once for both vendor and purchaser, assumes a double agenc}' disap-
proved of by law, and which, if exercised without the full knowledge
and free consent of both parties, is not to be tolerated. The same, in
Meyer v. Hanchett, 43 Wis. 246, wherein the question whether such
double agency is consistent with public policy, though exercised with
the consent of both parties, is left undecided, but it is decided that
mere knowledge of such double agencj-, without actual consent on the
part of the principals, will not entitle the agent to commissions.

The validity of such contracts of double agenc}', where all the princi-
pals were fully advised and consented to the doul)le emploj'ment, was
more directly before the courts, and affirmed in the following cases :
35 N. Y. Super. Ct. 189 ; Rowe y. Stevens, 53 N. Y. 621 ; Alexander
V. N. W. C. University, 57 Ind. 466 ; Joslin v. Cowee, 56 N. Y. Q'^Q ;
Adams Mining Co. v. Sentei-, 26 Mich. 73 ; Fitzsimmons v. South-
western YjX. Co., 40 Geo. 330 ; Rolling Stock Co. y. Railroad, 34 Ohio
St. 450 ; Pugsley v. Murray, 4 E. D. Smith, 245. See also note by
Bennett to Lynch y. Fallon, 16 Am. L. Reg. 333.

Raisin y. Clark, 41 Md. 158, holds the contrary doctrine, if knowl-
edge and consent on the part of the first employer is to be regarded as

916 BELL V. McCONNELL. [CHAP. YIL

full}' proved. Other cases bearing more or less directly on the point
might be cited ; but enough are given to show a want of harmon}' in
the decisions ; yet we think the decided current of authorit}' is in favor
of the validity of such contracts where the consent of both principals
to such double agency is clearly proved.

We admit that all such transactions should be regarded with suspi-
cion ; but where full knowledge and consent of all parties interested
are clearl}- shown we know of no public policy, or principle of sound
morality, which can be said to be violated. It seems to us rather that
public policy requires that contracts, fairly entered into by parties com-
petent to contract, should be enforced where no public law has been
violated, and no corrupt purpose or end is sought to be accomplished.
True, such agent maj' not be able to serve each of his principals with
all his skill and energy. He may not be able to obtain for his vendor
principal the highest price which could be obtained, or for the purchaser
the lowest price for which it could be purchased. But he can render to
each a service entirely' free from falsehood and fraud ; a fair and valua-
ble service in which his best judgment and his soundest discretion are
fully and freelj- exercised. And in such case, such service is all that
either of his principals contracted for. Undoubtedly, if two persons
desire to negotiate an exchange or a bargain and sale of property, they
may agree to delegate to a third person the power to fix the terms, and
no suspicion of a violated public policy would arise. It may be said
that such third person is an arbitrator chosen to settle differences be-
tween his employers, an agenc}' or office greatl}' favored in the law.
And so it is. But what is the distinction between that employment
and the one in the present case, which should cause the law to favor
the former and abhor the latter? I can see none.

True, in the case put, the contracting parties deal directly with each
other, and in the case at bar their minds meet through the medium of
a third person in whose judgment and discretion they mutuall}' repose
confidence. His judgment and discretion are invoked by each to aid
in fixing the terms of a contract between them. And after the terms
are thus adjusted through the aid of their mutual agent, and ratified
by the parties, in the free exercise of their own volitions, to hold
that the relation between such agent and either of his principals is in
violation of a sound public policy supposed to rest on some moral
abstraction, would be a refinement in legal ethics too subtle for my
comprehension.

Of course, to relieve such double agent from suspicion that incon-
sistent duties have been assumed, v>h\cl\ prima /acie will be presumed,
it is necessary* that it should appear that knowledge of every circum-
stance connected with his employment by either should be communi-
cated to the other, in so far as the same would naturalh' affect his
action ; but when that is done, and free assent is given b}' each principal
to the double relation of the agent, the right of such agent to corapensa
t\on cannot be denied on any just principle of morals or of law.

SECT. IL] DAVIS V. HAMLIN. 917

The refusal of the Court of Common Pleas to charge as requested,
and the second proposition given, if not plainly in conflict with the
views above expressed, were at least so susceptible of such construc-
tion, that the jury may have been misled. Hence, we think the district
court did not err in reversing the judgment.

Judgment of district court affirmed?

DAVIS V. HAMLIN.
Supreme Court of Illinois. 1883.

[108 ///. 39.]

Appeal from the Appellate Court for the First District, — heard in
that court on appeal from the Circuit Court of Cook county* ; the Hon.
M. F. TuLEY, judge, presiding.

This was a bill in equity brought by John A. Hamlin, against
William J. Davis, seeking to have the latter declared to be a trustee for
the former of a certain lease of the Grand Opera House in Chicago,

1 8ee York Buildings Co. v. Mackenzie, 8 Bro. P. C. (Tomlin's ed.), 42 (1795);
New York Central Ins. Co. v. National Protection Ins Co., 14 N. Y. 85 (1856) ; Rice
i;. Wood, 113 Mass. 133 (1873); Morison v. Thompson, L. R. 9 Q. B. 549 (1874);
Ranney v. Donovan, 78 Mich. 318 (1889).

In Empire State Ins. Co. v. American Central Ins. Co., 138 N. Y. 446 (1893), Earl,
J., for the court, said : "It is not doubted that the same per.son may sometimes act
as agent for the two parties in the same transaction. But he can do so only in case
he has no discretion to exercise for eitlier party. An agent to sell for one party may
also act as agent for the buyer, but only in case the price and terms of sale have been
fixed by each party, so that nothing is left to his discretion. But an agent to sell in-
trusted with a discretion, and thus bound to obtain the best price he can, cannot buy
for himself or as agent for another. In such a case he would occupy antagonistic
positions, and there would be a conflict of interests. He could not faithfully serve the
one party without betraying the interests of the other. He would at least be under
great temptation to betray the interest of one of the parties. So a person may some-
times act as agent of botli parties in the making of any contract. But he cannot do
so when he is invested with a discretion by each party, and when each is entitled to
the benefit of his skill and judgment."

In Knaus v. Krueger Brewing Co., 142 N. Y. 70 (1894), Peckham, J., for the
court, said : " It is undenialtle that where the broker or agent is invested with the
least discretion, or where the party has the right to rely on the broker for the benefit
of his skill or judgment, in any such case an employment of the broker by the other
side in a similar capacity, or in one where by possibility his duty and his interest
might clash, would avoid all his right to compensation. The whole matter depends
upon the cliaracter of his employment. If \. is employed by B. to find him a pur-
chaser for his house upon terms and conditions to be determined by B. when he meets
the purchaser, I can see nothing improper or inconsistent witli any duty ho owes B.
for A. to accept an employment from C. to find one who will sell his house to C. upon
terms which they may agree upon when they meet. And there is no violation of duty
in such case in agreeing for commissions from each party upon a bargain being
struck, or in failing to notify each party of his employment by the other." — P^D.

918 DAVIS V. HAMLIN. [CHAP. VIL

which Davis had obtained for himself from William Borden. Upon the
hearing the circuit court decreed the relief prajed for. The decree was
atliimed by the Appellate Court for the First District, and the defend-
ant appealed to this court.

The facts appearing from the evidence are, that Hamlin was the
lessee and manager of the theatre known as the Grand Opera House,
in the city of Chicago, and for some ten years had occupied tlie prem-
ises, first as owner, and then as lessee. After the Chicago fire, in 1871,
he purchased the lots and built thereon the building, and has used it
since that time as a place of amusement. He expended in its construc-
tion and improvement over $75,000. Mortgages had been given upon
the lots, which were finally foreclosed, and he lost the title to the lots.
Subsequently' he became a lessee, and contracted with William Borden,
who was then the owner of the premises, that the latter should fit up
the house for a first-class opera house, and that he would pay him a
rental, after it was finished, amounting to about $18,000 a year. The
building being completed about the month of August, 1880, Hamlin
entered into the possession, and opened it as a place for first-class
entertainments. He had a lease which would expire April 23, 1883,
and it was his intention to continue permanently in this building in the
amusement business, and at the expiration of his lease to renew it.
During the first year after opening his new opera house, about the first
of September, 1880, he cleared, over and above all expenses, the sum of
$7,000, and the next year, from September, 1881, to September, 1882,
$24,000. When he was about to open in September, 1880, he secured
the services of William J. Davis, the defendant, as a general business
manager. The evidence shows that the duties of a manager or assist-
ant manager are to correspond with companies, operas, troupes, etc.,
for engagements of from one to four weeks, according to their accept-
ableness, and so arrange the engagements, that they will follow one
another in future months without loss of time. In making these en-
gagements it is necessary to show the exact expense of the house each
night, including rent, and the custom of business is to make a settle-
ment between the proprietor of the theatre and the manager of the
attraction, and divide the money every night. Davis, about September,
1880, entered upon the discharge of his duties, and from that time until
the making of the lease in question continued in the management of
the theatre. For this service he received $50 per week as a fixed salary,
and ten per cent of the profits.

Respecting the renewal of the lease there is but the uncontradicted tes-
timonj- of Davis and Hamlin themselves. Davis testifies the first nego-
tiation he had with Borden was about December 1, 1881. He went to
Borden for the purpose of purchasing the theatre, and offered $200,000
for it. Borden did not care to sell, and inquired what rent Davis
would be willing to pa}', and Davis said, ten per cent on Borden's
valuation of it, if it did not run above $225,000. Borden asked Davis
if he would give that rent, and Davis said he would, if there was any

SECT. II.] DAVIS V. HAMLIN. 919

use of his making an offer for it, — if the theatre was in the market.
Borden said he was going to New York, and would see Davis on his
return. Davis says he next saw Borden on the 19th of January, 1882,
when he called upon Borden in Chicago in response to a note from
Borden to do so. Borden then inquired of Davis what he would give
for the lease of the theatre. Davis told him. Borden did not accept
the offer, but asked Davis to see him another day, and after further
negotiation, Borden, on the 24th of January, 1882, executed to Davis
a lease of the theatre for the term of ten years, at the rental of $22,500
per year. Davis says he told Borden, at the interview on January 19,
that Hamlin would pay him nearly double what Davis offered for the
theatre, because Hamlin had told him (Davis) that he would pay
$40,000 a year for the theatre, and sink $10,000 from his private in-
come, before he would surrender it, but Borden said he thought Hamlin
was " blowing."

Hamlin testifies that soon after the opening, in 1880, he made appli-
cation to Borden for a lease to him and one Nunnemacher for twenty
years, which Borden declined, then, to give; that the next talk he had
with Borden was in New York, between the middle of December, 1881,
and the middle of January, 1882, when he told Borden he would take a
lease for an\' term of years, and would pay all that it was possible for
any prudent business man to pay, and would pa}' as much rent as any-
body'. Borden said he would talk it over the next week in Chicago.
Subsequently he had two interviews in Chicago with Borden on the
subject. At the second one he offered $20,000 per year rent, but
Borden declined to take it, saying he must see the other parties first ;
that there were two persons he had offers from ; that they were mana-
gers, and Chicago men. Hamlin testifies that he went immediately to
Davis, and inquired of him if he was attempting to secure a lease of the
Grand Opera House, and Davis answered no — that he was not. He
said he then told Davis what he had just learned from Borden, and that
he would pay double the value of the theatre rather than anybod}' else
should have it. Davis said to him : "I would not give an extravagant
price for it if I were you ; I would not give a dollar more than it is
worth." The parties agree as to this interview and conversation, differ-
ing onl}' as to its date, Davis testifj'ing that it was on the 17th, and
Hamlin that it was on the 23d of January, 1882.

The evidence was that a theatre well managed has a good-will, of
value, attached to it ; that there were only four first-class theatres in
Chicago, including the Grand Opera House, and there was no proba-
bility that Hamlin could get another theatre without building a new
one.

3fi'. E. flamiesoyi and Mr. L. W. Perce^ for the appellant.

Mr. L. Swett and Messrs. Quigg <& Ttdhill, for the appellee.

Sheldon, C. J. Under the facts in this case the onlj' question
arising is, whether Hamlin, b}- reason of Davis' agency and confiden-
tial relation to him, is entitled to the benefit of the lease executed by
Borden to Davis.

920 DAVIS V. HAMLIN. [CHAP. VIL

In the employment of an agent the principsl bargains for the disin-
terested skill, diligence, and zeal of the agent for his own exclusive
benefit. Upon entering into the eraplo}- of Hamlin, there rested upon
Davis the duty of fidelit}' to his employer's interest, and of acting for
the furtherance and advancement of the business in which he was en-
gaged, and not in its injury. We view the whole conduct of Davis in
regard to the lease in question as violative of the duty of the relation in
which he stood toward Hamlin. His first offer to rent the premises
from Borden, about December, 1881, was an act hostile to the interest
of his employer. He offered Borden a rent which was nearly $5,000 in
excess of the rent which Hamlin was then paying. Borden knew that this
was an offer made upon an exact knowledge of the profits of the busi-
ness, which Davis, from his emplo3"ment, had peculiar means of know-
ing, and the natural effect would be to cause Hamlin to pay an enhanced
rent when he should come to ask for a renewal of his lease. Davis
violated the duty of his relation in concealing from Hamlin that he was
attempting to get the lease. Davis excuses his denial to Hamlin of
such attempt b}' saving that this was on January 17, and that it was true
that at that time he was not making such an attempt, but had given it
over, not up to that time having received any response from Borden to
Davis' offer to rent, made on December 1, and that he was then, on
January 17, making, or had made, preparations to go into another busi-
ness. Taking this to be so, we find Davis only two da^'s later, January
19, in the act of negotiation for the lease, and making an oflfer to Borden
for the lease, which the latter took time to consider. Now, Davis knew
that it was of vital importance to the interest of Hamlin that the latter
should get a renewal of his lease ; that Hamlin was most anxious to
ascertain whether Davis — who alone, with Hamlin, had exact knowl-
edge of the profits of the business — was in competition for the lease ;
and from Davis, onl}- two da3-s before, denying that he was competing
for the lease. Davis knew, on January 19, that the belief was resting
on Hamlin's mind, from what Davis had told him two days before, that
Davis was not a competitor for tlie lease. Under these circumstances
Davis ought to have disabused the mind of Hamlin of the impression,
which Davis had caused, that the latter was not attempting to get the
lease, and have informed Hamlin of what the fact was, to give to the
latter the opportunity to act accordingly, and Davis' not doing so was a
breach of good faith towards his emploj'er.

The obtaining of the lease b}- Davis amounted to a virtual destruction
of his employer's whole business at the termination of the old lease,
under which the latter was holding. Bv some ten j-ears of labor Hamlin
had built up a business of a very profitable character. There was a
good-will attached to it, which was valuable. Hamlin was intending to
make it a lifetime business. Sustaining this lease to Davis, at the end
of Hamlin's lease, April 16, 1883, all this business would come to an
end, and pass, good-will and all, from Hamlin, the emploj'er, into the
hands of Davis, the emplo3'ee. And this would have been accomplished

SECT. II.] DAVIS V. HAMLIN. 921

by the raeans of a renewal lease obtained by a confidential agent, in
violation of the duty of his relation, and acquired, presumabh', because
of peculiar means of knowledge of the profitableness of the business,
aflJbrded him by the confidential position in which he was emplo3-ed. A
personal benefit thus obtained b}^ an agent, equity will hold to inure for
the benefit of the principal.

Public policy, we think, must condemn such a transaction as that in
question. To sanction it would hold out a temptation to the agent to
speculate off from his principal to the latter's detriment. Davis very
well knew that his employer would be willing to pa}- a much higher
rent than that at which he obtained the lease, and that he could dispose
of the lease to Hamlin at a large profit to himself, and such means of
knowledge was derived from his position as agent. If a manager of a
business were allowed to obtain such a lease for himself, there would be
laid before him the inducement to produce in the mind of his principal
an under-estimate of the value of the lease, and to that end, maybe, to
mismanage so as to reduce profits in order that he might more easilj'^
acquire the lease for himself.

It is contended b}' appellant's counsel that the rule we apph-, which
holds an agent to be a trustee for his principal, has no application to
the case at bar, because Davis was not an agent to obtain a renewal of
the lease, and was not charged with any dut}- in regard thereto ; that his
was but the specific employment to engage amusements for the theatre,
and that he was an agent only within the scope of that employment ;
that Hamlin, having a lease which would expire April 16, 1883, had no
right or interest in the property thereafter, and that Davis in negotiat-
ing for the lease, did not deal with any property wherein Hamlin had
any interest, and that such propert}' was not the subject matter of any
trust between them. Although there was here no right of renewal of
the lease in the tenant, he had a reasonable expectation of its re-
newal, which courts of equity have recognized as an interest of
value, secretly to interfere with which, and disappoint, by an agent
in the management of the lessee's business, we regard as inconsistent
with the fidelit}' which the agent owes to the business of his principal.
There was the good-will of the business, which belonged to the business
as a portion of it, and this the agent got for himself.

It is further argued that the relation here between Hamlin and Davis
was that of master and servant, or employer and employee, and that the
rule has never been applied to that relation as a class, and that the
classes coming within that doctrine are embraced within the list of
defined confidential relations, such as trustee and beneficiar}', guardian
and ward, etc. The subject is not comprehended v»'ithin an}- such
narrowness of view as is presented on appellant's part In applying
the rule, it is the nature of the relation which is to be regarded, and not
the designation of the one filling the relation. Of this principle Bispham
says : '' The rule under discussion applies not onl}' to persons standing
in a direct fiduciary relation towards others, such as trustees, executors.

922 DAVIS V. HAMLIN. [CHAP. VII.

attorneys and agents, but also to those who occupy any position out of
which a similar dut}' ought, in equity and good morals, to arise."
(Bisphani's P^quity, sec. 93.) In Greenlaw v. King, 5 Jur. 19, Lord
Chancellor Cottenham, speaking of this doctrine, says: "The rule
was one of universal application, affecting all persons who came within
its principle, which was, that no party could be permitted to purchase
an interest when he had a dut\' to perform which was inconsistent with
the character of a purchaser." "It is the duty of a trustee," said Lord
Brougham, in Hamilton y. AVright, 9 CI. & Fin. Ill, "to do nothing
for the impairing or destruction of the trust, nor to place himself in a
position inconsistent with the interestsof the trust." And on page 124 :
"Nor is it onl}' on account of the conflict between his interests and his
dut}- to the trust that such transactions are forbidden. The knowledge
which he acquires as trustee is, of itself, sufficient ground of disquali-
fication, and of requiring that such knowledge shall not be capable of
being used for his own benefit to injure the trust." Although this was
said of a trustee, we think it may be equally' said here with respect to
Davis and the business which he was employed to manage. The rule we
apply, as to its broadness in extent, is aptly expressed in the Ameri-
can note to Keech v. Sanford, 1 Lead. Cases in Eq. 53, as follows:
"Wherever one person is placed in such relation to another, by the
act or consent of that other, or the act of a third person, or of the law,
that he becomes interested for him, or interested with him, in any sub-
ject of property or business, he is prohibited from acquiring rights ia
that subject antagonistic to the person with whose interests he has
become associated."

The views which we have above expressed we believe to be in
accordance with the well-established principles of equitable juris-
prudence. See Devall v. Burbridge, 4 Watts & S. 305 ; Hill v. Frazier,
22 Pa. St. 320 ; Fairman v. Bavin, 29 111. 75 ; Oilman, Clinton and
Springfield R. R. Co. v. Kelly, 77 id. 426 ; Bennett v. Vansyckle, 4
Duer, 462; Gillenwaters v. Miller, 49 Miss. 150; Grumley v. Webb,
44 Mo. 446.

The judgment of the Appellate Court must be affirmed.

Judgment affirmed}

1 Ace. : Gower v. Andrew, 59 Cal. 1 1 9.

See Yovatt r: Winyard, 1 Jac. & W. 394 (1820) ; Valletta v. Tedens, 122 III. 607
(1887) ; Tabor v. Hoffman, 118 N. Y. 30 (1889). — Ed.

SECT. II.] PAGE V. WEBB. 923

PAGE V. WEBB.

Court of Appeals of Kentucky. 1888.

[7 S. W. Rep. 308.]

Appeal from circuit court, Adair county.

II. C. leaker, for appellant.

Montgomery tC; Jones, for appellee.

Pkvor, C. J. Tlie appellee, Webb, living in Memphis, Tennessee,
and owniiig a large tract of land in Adair count}", in this State, em-
ployed the appellant, Page, to take charge of his land, list it for
taxation, and pay the taxes as they became due. The agent paid the
taxes for three years prior to the year 1874, but declined to pay them
for the years 1874, 1875, 187G, and 1877. The land was sold to pay
the taxes for those years, and purchased by the sheriff, who assigned
his bid to Page, appellee's agent, and the latter obtained a deed therefor.
This action is to cancel that deed, and compel the appellant to surren-
der his claim, the appellee tendering the full amount paid. That the
appellee was derelict in his duty in failing to furnish the appellant with
mone}' to pa^' the taxes, is established, and this agent was left to pay
them out of his own pocket, which he did up to 1873. The land was
listed for the years during which the taxes were unpaid by the appellant,
as the agent of the appellee, and, when sold, was purchased by the appel-
lant. The latter states that he does not recollect whether he listed the
property in that way or not ; still the assessor's books show that it was
listed in that manner. The agent of the principal was purchasing the
principal's property, and must be regarded as holding it for his prin-
cipal. He purchased the 1,000 acres of land for $32 ; and looking to
the relation of the parties at the time, with reference to the subject-
matter of controversy, the Chancellor properly held that the agent
acquired the title to protect the claim of the appellee, and he cannot,
in a court of conscience, be deemed to have purchased the land for any
other purpose. Judgment affirmed.^

1 Arc: Bowman v. Officer, ."iS Iowa, 640 (1880).

For other applications of the doctrine as to loyalty, see Ringo v. Binns, 10 Pet. 269,
280 (1836) ; Carter v. Palmer, 1 Dr. & Walsh, 722 (1839) ; Gardner v. Ogden, 22 N. Y.
327 (I860) ; Claflin v. Farmers' & Citizens' Bank, 25 N. Y. 293 (1862); Eo£E v. Irvine,
108 Mo. 378 (1891). — Ed.

924 MERRYWEATHER V. MOORE. [CHAP. VIL

MERRYWEATHER v. MOORE.
Chancery Division. 1892.

[[1892] 2 Ch. 518].

In 1881, the defendant, Edward J. Moore, apprenticed himself, for
the purpose of learning the business of mechanical engineering, to the
plaintiffs, a firm of fire-engine makers, for a period of fi\'^ 3ears. After
having served his apprenticeshii:), he was taken b}' the plaintiffs into
their employ as a draughtsman, at a salary of 30s. a week. In Ma\',
1891, Moore left the plaintiffs' service, and entered the employment of
the defendants, Mobbs & Co., Limited, makers of raachiner}- ; and
shortly afterwards that company, in conjunction with the defendants,
the Sphincter Grip Armoured Hose Company, Limited, commenced the
business of fire-engine makers, under the style of "The Fire Appli-
ances Company." From the evidence it appeared that about two days
before leaving the plaintiffs' emplo}' the defendant Moore, without their
knowledge or authoritj', compiled a table of dimensions of the various
tyi^es of fire-engines made by the plaintiffs, which dimensions the
plaintiffs claimed to be "trade secrets ; " and the plaintiffs stated their
belief that these dimensions were taken for the purpose of being com-
municated to the defendant companies, inasmuch as those companies
had recently exhibited in their shop for sale a fire-engine of the same
dimensions as those of one of the engines whose dimensions were given
in the table in Moore's possession. The plaintiffs then commenced this
action, and now moved for an interim injunction to restrain the defend-
ant Moore from publishing or communicating to any person the paper
or table of dimensions or the contents thereof; " which paper had been
compiled by him in breach of his contract of employment with the
plaintiffs, and in breach of the confidence reposed in him b}" the plain-
tiffs," and to restrain the defendant companies from publishing or using,
in the construction of fire-engines, or otherwise in the course of their
trade or business, the information so obtained from the plaintiffs by
the defendant Moore. The defendant Moore deposed that he prepared
the table merely for his general information ; that when he left the
plaintiffs' service he placed the table with his engineering and mechan-
ical text-books ; that since he had been in the service of the defendant
companies he had not been emploved in designing or making drawings
for any fire-engines for which the table or an}- information therein
could be of the slightest use ; and he denied ever having shown it to
his present employers.

The managers of the defendant companies deposed that they had
never made use of or even seen the table in question ; and they denied
that the engine referred to by the plaintiffs was of any of the dimensions
therein stated.

SECT. IL] MERRYWEATHER v. MOORE. 925

Warmington^ Q. C, and T. E. Scrutton^ for the plaintiffs.

Kerli/, for the defendant Moore.

Martin, Q. C, and Arnold Statham, for the defendant companies.

Kekewich, J.^ What is the state of the law as regards a gentleman
occup3ing the position of clerk or servant in the employ of a professional
man or a tradesman, that is to sa}-, a person carrying on a professional
or commercial business? It is laid down in clear terms in several cases
which have been cited, and there really is no dispute about it. The law
is taken from Tipping v. Clarke, 2 Hare, 383 ; and that law is repeated
in Prince Albert r. Strange, 1 Mac. & G. 45. It is again to be found in
other cases, and it is summed up in a few words in a recent case which
was not cited, and which I do not refer to for its facts, namel}- : Pollard v.
Photographic Compan}', 40 Ch. D. 345, before Mr. Justice North, who
says, 40 Ch. D. 354 : " It is quite clear that, independentl}' of any ques-
tion as to the right at law, the Court of Chancery always had an original
and independent jurisdictic n to prevent what that court considered and
treated as a wrong, whether arising from a violation of an unquestionable
right or from breach of contract or confidence ; " and for that he refers
to Prince Albert v. Strange. As pointed out by Mr. Scrutton in replj",
it is sometimes difficult to say whether the court has proceeded on the
implied contract or the confidence, for I will put aside once for all any
cases arising on express contract. Perhaps the real solution is that
the confidence postulates an implied contract : that, where the court
is satisfied of the existence of the confidential relation, then it at once
infers or implies the contract arising from that confidential relation, —
a contract which thus calls into exercise the jurisdiction to which I
have referred.^ . . .

Now, here I have a gentleman formerl}' apprenticed to the plaintiffs ;
apprenticed, of course, to learn his trade. It is immaterial to consider
whether he paid a fee, or what the terms of his articles were ; generally
speaking, the object was, to him that he should learn his trade, to them
that he should give them, besides any fee which he' might have paid,
such services as he could perform. No question arises respecting his
duties during that apprenticeship. If there did, I might have thought
it right furtlier to considet the matter ; but after the termination of his
apprenticeship he is taken into the employment of his principals as a
paid clerk ; and from that time forward the duty to instruct on the
part of the employer ceases, and then the bargain must be — I am not
told what it actually was — that the clerk shall give his full time dur-
ing the ordinary office hours to the employer in exchange for proper
accommodation and proper remuneration, all which is a matter of bar-
gain. I cannot imply from that relation any obligation on the part
of the employer to instruct the clerk, or to enable him to inform him-

1 After explaining the inconvenience of trying the question on motion. — Ed.

2 Here Renter's Telegram Co. v. Byron, 43 L. J. n. 8. Ch. 661 (1874), was explained
There is further comment on that case in Lamb v. Evans [1893] 1 Ch. 218, 226, 231-
232 (C. A. 1892). — Ed.

926 MERRYWEATHEK V. MOORE. [CHAP. VII.

self otherwise than by doing his work. If he is able, in the progress of
his work, to learn, an object which ho ought of course to have before him,
that will be so much the better for him in the course of his employment
as giving him a claim to higher remuneration and a better position, and
also better for him in future years ; but I see no obligation on the part
of the employer to instruct him, or to give him the opi)ortunit3', other-
wise than by doing his work, of instructing himself. I see no obliga-
tion on the part of the employer to put the books and materials at his
disposal for the purpose, if he so pleases, of employing his spare hours
in the advancement of his learning in tlie particular trade. It is simply
a bargain that, for so much mone}- or other remuneration, the clerk
shall perform such and such services. He, being in that relation,
thinks fit, within a few days of his leaving the service of his employers,
and when he of course knew that he was leaving their service, and
when therefore anything that he did would be of no advantage to them,
to draw out this table. It may be that this table was compiled from
data which were at his disposal as clerk in the employment of the
plaintiffs. It may be that with care all these details might have been
obtained b}- inspection of the different engines which were either at
hand or available, perhaps, through working drawings or otherwise ;
but in this particularly compendious form it is common ground that
these materials did not exist. Mr. Moore considered it to be for his
benefit that they should exist, and exist in his possession ; and he must
be taken, whatever he says, to have intended to use them for his own
purposes. Was it lawful for him to do that? Is it right that he should
either retain or use these materials? If he can carr}' them in his head,
no one can prevent his doing that and making use of them. But the
question is, is not this an abuse of the confidence necessarily existing
between him and his emplo^'ers, — a confidence arising out of the mere
fact of employment, the confidence being shortly this, that the servant
shall not use, except for the purposes of service, the oppoitiinities which
that service gives hira of gaining information? In my opinion, though
I admit the question to be one of some novelty and difficult}', this is an
abuse of the confidence necessarily arising out of the circumstances ;
and I think the abuse is shown and evidenced by the fact of this table
having been compiled during the last few days of his service, when it
is idle to sa}' that it was was done for any purpose that could be of the
slightest advantage to the employers.

Mr. Scrutton made an extremely valuable remark in his repl}-. If
Mr. Moore was at liberty to compile this table from the materials be-
fore him, he might have made extracts from the working drawings
which were no doubt under his hand : he might have made copies of
the working drawings as a whole or of an}' part ; he might have copied
that which, without being patented or protected b}' a trade-mark, was
nevertheless peculiarly valuable to the plaintiff's firm, and have carried
awa}' elsewhere the means of doing that which he had learnt to do
there. One might suppose other abuses, but the working drawings

BECT. II.] MERRYWEATIIER V. MOORE. 927

furnish an example which seems to me directly apposite. It is impossi-
ble to draw a line with any accuracj- and to say that to do this would be
an abuse of the confidence, and to do that would not. It is impossible
to la}- down a general rule with reference to all trades and all pro-
fessions. The circumstances ma}- vary. It was put in the course of
argument that the pupil of a conveyancer copies precedents. The
answer is that, though no express contract has, 1 suppose, ever been
made, it is certainly the unwritten law of the profession that barristers
who take pupils shall allow them to have their books of precedents,
not only for consultation, but to copy ; and we all know that, not only
as regards conveyancers' precedents, but still more, perhaps, as regards
pleading precedents, in olden times they were of such great value that
many gentlemen went into particular chambers for the mere purpose of
employing themselves in that dry work of copying precedents. We all
know what a long time Lord Campbell spent in copying precedents in
a pleader's chambers. I say one cannot draw the line exactly ; but the
present case, for the reasons I have mentioned, seems to me to go be-
yond the line and to be an abuse of confidence, and therefore I think
Mr. Moore must be restrained from publishing or communicating to
any person this particular paper or the contents thereof.

As regards the companies, there is certainly an element of suspicion
in the case. There is a good deal to be said in support of that sus-
picion, but the evidence displaces it for the present purpose ; and as
Mr. Marten is willing on their behalf that the order shall contain an
express disclaimer of their intention to make use of this paper for
any purpose, I think that I ought not to grant any injunction against
them. I come to that conclusion on the ground that they have not
threatened to use it, that there is no proof of their intention to use it,
which intention they have disclaimed, and that the evidence has not
established any reasonable probability of their using it. Possibly a
case may be made hereafter against them, but I will not prejudice that
question either one way or the other by making any comments on the
evidence beyond what I have already made. I will leave that entirely
open ; and with the same view, in order that there may be no indication
of any opinion on my part, which I may say candidly I have not formed,
I had better deal with the costs by making them costs in the action.

Accordingly there will be an interim injunction against the defendant,
Mr. Moore, but no order against the defendant companies, upon their,
by their counsel, disclaiming any intention to publish or use this paper
or its contents. The costs of the plaintiffs and of the defendant
companies will be costs in the action.^

1 See Lamb v. Evans [1893] 1 Ch. 218 (C. A. 1892); Eobb v. Green [1895] 2 Q.
B. 1. — Ed.

928 PALLISEK V. O&D. [CHAP. VIII.

CHAPTER VIII.
DELEGATION BY AN AGENT.

SECTION I.

The Rule.

PALLISER t'. ORD.

Nisi Prius. 1724.

[Bunbury, 166.]

Debt was brought upon the certificate of the commissioners for
stating the debts due to the army pursuant to the Stat. 6 Geo. for one
hundred and five pounds eighteen shillings and seven pence farthing,
certified to be due to the plaintifl?", for which the statute gave an action
of debt upon a demand made and refusal. In proving the demand, it
was of one hundred and five pounds eighteen shillings and six pence
farthing, instead of seven pence farthing, which varied from the sum
certified. Lord Chief Baron Eyre (before whom this cause was tried)
was of opinion that this certificate was in the nature of a judgment;
that it being a debt thereby reduced to a certainty, and the demand
being of a different sum it was fatal ; and thereupon the plaintiflf was
nonsuited.

NoTA, The plaintiff gave an authority to Moore^ his attorney, to
make the demand, or to authorize any other person to do it, who ac-
cordingly executed a letter of attorney to another to do it ; so it was
objected, for the defendant, that a naked authority could not be dele-
gated. But the Chief Baron was of opinion it might by express au-
thority for that purpose, otherwise not.-'

1 Ace. : Doe d. Rhodes v. Robinson, 3 Bing. N. C. 677 (1837).

See Cropp's Case, Godbolt, 38 (1557-58) ; Combes' Case, ante, p. 33; Southerne v.
Howe, 2 Rolle's Rep. 5, 6 (1617-18), s. c Cro. Jac. 468. — Ed.

SECT. I.] STEPHENS V. BADCOCK. 929

CATLIN V. BELL.

Nisi Prius. 1815.

[4 Camp. 183.]

This was an action of assumpsit for not accounting for goods deliv-
ered by tlie plaintiff to the defendant, to be sold on her account.

The defendant is master of a ship trading from this country- to the
West Indies, and the plaintiff intrusted to him a quantity of milliner}'
goods, which he undertook to sell for her there.

The first defence was that these goods had paid no duty on exporta-
tion ; and it was proved that the defendant's ship, in which they were
carried, cleared oat at the custom-house in ballast. It was contended,
therefore, that the adventure was illegal, and that no action could
arise out of it.

Lord Ellenborough. You do nothing unless you show that it
formed part of the agreement between tlie parties to defraud govern-
ment of the duties. This would contaminate the contract on which
the action is founded ; but it cannot be affected by the simple circum-
stance of the ship clearing out in ballast.

It was then stated that the defendant, not being able to sell the
goods in the island to which the}- were destined, had sent them to the
Caracas in search of a market, where they had been destroyed by an
earthquake ; but

Lord Ellenborough clearly held that there being a special confi-
dence reposed in the defendant, with respect to the sale of the goods,
he had no right to hand them over to another person, and to give thenc
a new destination. The plaintiff had a verdict.

Park and Barjiewall, for the plaintiff.

Topping, for the defendant.

STEPHENS V. BADCOCK.
King's Bench. 1832.

[3 B. Sr Ad. 354.]

Assumpsit for money had and received, &c. Plea, the general issue.
At the trial before Taunton, J., at the Cornwall Lent assizes, 1831, the
following facts appeared. The plaintiff was rector of Ludgvan near
Penzance ; the defendant had been clerk to Mr. Samuel John, an attor-
ney, whom the plaintiff had for several years employed to receive his
rents and tithes. On the 10th of August, 1829, John, being in embar-
rassed circumstances, left his home ; he had not returned, and a com-
mission of bankrupt had issued against him, when this action was

930 STEPHENS V. BADCOGK. [CHAP. VIII.

brought. After bis departure, and before the cause of it was known in
his office, Reynolds, his principal clerk, who had occasionally received
payments for him in his absence, went to attend Bodmin assizes, leav-
ing the defendant behind. At the assizes, at some time from the 18th
to the 20th of August, Reynolds first heard that Jolni was not likely to
return. In Reynolds's absence one of the plaintiff's parishioners called
at the office to pay £9 Os. '2d. , on account of a composition for tithes.
The defendant said that Mr. John was absent, but he would receive
the money (which he was, in fact, autliorized by Reynolds to do) ; it
was paid to him, and he gave a stamped receipt for the sum as follows :
"Received 20th August, 1829, of Mr. H. T., £9 Os. 2d., for half a
3'ear's composition for tithes due to Rev. J. S. at Lady-day last past,
for Mr. S. John, John Badcock." On Reynolds's return the defendant
accounted to him for other sums received during his absence, but said
nothing of this ; nor did Reynolds know of this payment till the end of
the year. Reynolds stated that at the time of these transactions John
was indebted to the plaintiff on the balance of account between them.
It did not appear that the defendant had any claim upon John. The
defendant having refused to pay the plaintiff the £9 (which he had not
paid over to John or his estate), this action was brought to recover it.
Two objections in point of law were taken at the trial : first, that, as
the defendant acted only as clerk to John in receiving the sum in ques-
tion, the action should have been brought against his principal ; to
which point Sadler v. Evans, 4 Burr. 1984, and Miller v. Aris, 1 Selw.
N. P. 92, n., 8th ed., in which Lord Ken\'on recognized the principle of
the former case, were cited : secondly, that the plaintiff could not
recover the money as had and received b}' the defendant to his use,
there being no privity of contract between them ; as to which Williams
V. Everett, 14 East, 582, was referred to. Taunton, J., thought the
money was recoverable, as having been paid to the defendant under a
mistake, and not paid over by him to his principal before notice. He
therefore directed a verdict for the plaintiff, giving leave to move to
enter a nonsuit. A rule nisi having been obtained for that purpose,
Praed, on a former day of the term showed cause. ^
Follett^ contra. Cur. adv. vult.

Lord Tenterden, C. J., now delivered the judgment of the Court.
After stating the facts of the case, his Lordship proceeded as follows :
"Under these circumstances my learned brother who tried the cause
thought that the sum in question might be recovered from the defendant
as mone}' paid to him in a mistake. But we are of opinion that it
cannot be so recovered. It is perfectlj' clear that the defendant re-
ceived it as the agent or servant of John, and must have paid it over to
him if he had returned. The receipt given was the receipt of John,
and (if he had not been bankrupt) would have been evidence against

^ Before Lord Texterdex, C. J., Littledale, Taunton, and Patteson, JJ.—
Rep.

SECT. I.] LOOMIS, CONGER, & CO. V. SIMPSON. 931

him in an action brought by the present plaintiff. This differs from
the case decided in the former part of the term, where a part}- was
held to have received money belonging to a bankrupt's estate, on
behalf of the general body of creditors, and not for an assignee who
had become lunatic. There tlie defendant could have no authorit}- to
receive it for the lunatic assignee ; here Badcock was clearly the agent
of John when he received the mone}-, and did receive it in that capacit}-.
On the ground then that there was no privitj- of contract between the
defendant and plaintiff, but that the privity of contract was between
the defendant and John, and between John and the plaintiff, we think
the rule for a nonsuit must be made absolute. Jiule absolute.

LOOMIS, CONGER, & CO. v. SIMPSON.
Supreme Court of Iowa. 1862.

[13 Iowa, 532.]

Appeal from the Dubuque City Court.

This action was brought to recover of defendant a sum of money
which plaintiffs allege to be due for goods delivered to be sold on com-
mission, for which he has failed to account. Defendant insists that he
was instructed to sell a portion of the goods in Dubuque — to ship the
other east and south — that he had accounted for all those sold either
in Dubuque or elsewhere, for which he (defendant) has received pay-
ment. Trial, and judgment for plaintiffs.

tTokn L. Harvey^ for the appellant.

Cooley, Blatchley S Adams ^ for the appellee.

Wright, J. The points made arise upon certain instructions, given
and refused.^ . . .

Two instructions were asked and refused, as follows : —

1. If the jur}' believe that Simpson asked plaintiffs whether he
should send the goods to Memphis for sale, and the}' replied that he
should do with them as he would with his own, and he thereupon sent
them to a factor of good credit, defendant is not liable for the default
of such factor.

2. If the employment of a sub-agent was necessary, and that fact
was known to plaintiffs, and if defendant selected an agent of capacity
and credit, he is not liable for the default of such sub-agent.

If the testimony showed that Morris (the merchant at Memphis)
was substituted as the agent or factor of plaintiffs with their consent,
express or implied, these instructions were correct, and should have

1 A passage as to practice has been omitted. — Ed.

932 LOOMIS, CONGER, & CO. V. SIMPSON. [CHAP. VIII.

been given. As a rule it is true that where the employment of a sub-
agent is necessar}', the agent, if he makes a fit and proper selection, is
not responsible. And it is equally true as a rule that in the case of a
factor or broker, the authority cannot be delegated. (Cochran u.
Islam, 2 M. & S. 301 ; Solly v. Rathbone, Id. 298 ; Catlin v. Bell, 4
Camp. 183; 1 Pars. Cont. 71, 84.) But we suppose that the principal
ma}' confer the power of delegation or substitution, and that this may
be done in writing, as by the letters conferring the power upon the
agent, by words, or by acts, which acts or words ma}- by implication
give the authority or ratify the substitution after it is made. It must
be remembered, however, that there is a wide difference between the
employment of a servant or sub-agent b}' the factor, and the delega-
tion of authorit}' or a substitution. The factor may act througli or by
the hand of another, and yet there be no pretence that there has been
a substitution in such a sense as to bind the principal. And until the
fact of substitution, with the consent and approbation of the principal,
is once established (or his subsequent ratification or confirmation), there
can of course be no ground for claiming that his remedy is against the
substitute, instead of the original agent.

In this case the instructions refused were predicated upon two facts.
These were, that if plaintiffs told defendant " that he should do with
the goods as he would with his own," or if " the employment of a sub-
agent was necessary, and that fact was known to plaintiffs," then, in
either event, defendant had a right to send the goods to a factor of
good credit, to whom, and not defendant, plaintiffs should look for
their proper disposition. We do not think, however, that if the jury
had found both of these facts in favor of defendant, it necessarily fol-
lowed that he would not be liable for the default of the person so
selected. The inquiry still remained, was this person selected as the
servant of the agent or factor, or did he become the agent of the prin-
cipal ? It by no means follows, where produce, for instance, is in-
trusted to a commission merchant in Dubuque, and sent forward by
him to his correspondent or agent at Chicago or St. Louis, that a
privity of contract exists between such correspondent and principal, to
the extent that the original factor is released and the sub-agent only is
liable. Nor does it make any difference that the principal or consignor
knows that it must and will be sent forward to find a market. He has
a right to, and is presumed to repose confidence in, the financial ability
and business capacit}^ of the person so employed, and if such factor
employs other persons, he does so upon his own responsibility ; and
having greater facilities for informing himself and extending his busi-
ness relations, upon him, and not upon the principal, should fall the
loss of any negligence or default. If, however, another person has
been substituted who, with the knowledge and approbation of the prin-
cipal, takes the place of the original factor, or if such substitution is
necessary from the very nature of the business, and this fact is known
to the principal, the liability of the substitute may be direct to the

SECT. I.] LOOMIS, CONGEK, & CO. t. SIMPSON. 933

priucipiil, depending upon questions of good faith and the like, on the
part of the factor in selecting the substitute.

Under the circumstances, we think the instructions were properly
refuscd, and the judgment is, therefore, Affirmed.^

1 In Rossiter v. Trafalgar Life Assurance Association, 27 Beav. 377, 381, 382
(18.59), KoMiLLY, M. R., said : " It is undoubtedly quite true, that au agent cannot
delegate his authority to another person , but I apprehend it to be equally clear, that
an agent is entitled to perform, and must necessarily perform a great number of his
acts and functions through the aid of persons to whom he delegates his authority.
Thus, for instance, when a merchant receives goods from abroad for sale, and he
deputes his foreman to go to the proper place for selling such goods, and the foreman
sells them accordingly; in that case, it would be impossible for the consignor to say
that the sale was void, because the merchant did not personally sell them himself, but
employed another person for that purpose, by whom the sale was effected. The
merchant would, no doubt, be answerable for all the acts of liLs foreman, but provided
the acts done were proper and within the scope of his authority, they would be the
acts of the merchant himself."

In Campbell v. Reeves, 3 Head, 226 (1859), consignors brought an action of as-
sumpsit against their factors, and the Supreme Court of Tennessee, affirming a judg-
ment for the plaintiffs, said, through McKisney, J. : " Campbell &, Co. sold and
transferred their busine.ss to Marley «fc Ricardi, and . . . turned over to the latter a
portion of the consignments which then remained undisposed of. This was done
without the knowledge or consent of the consignors. . . .

" The circuit judge instructed the jury that the relation of factor and principal
was one of personal trust and confidence. And that, in general, where a consign-
ment of goods was made to a factor for sale on account of the principal, the factor
would have no authority to deliver over the goods to a third party for sale, without
the assent of the principal, unless some usage of trade to the contrary prevailed,
or the act were 'subsequently ratified by the principal. And that the factor making
such transfer — without the previous or subsequent sanction of the principal, and in
the absence of any usage or custom of trade — would be liable for the value of the
goods thus transferred. ... j

" It is true that a factor has a special property in the goods intrusted to him for
sale, and a lien on them for his factorage or commission, and he may sell the goods
in his own name. But, in general, he has no power to delegate his authority to an-
other person, — it must be executed by him personally, unless authority to substitute
another in his stead was, expressly or impliedly, conferred upon him by his priucipaJi.
Story on Agency, §§ 13, 110, 201.

" If, then, the factor dispose of the goods, by a delegation of his authority to a
third person, without the sanction of the principal, or of a usage of trade, what is the
legal consequence ? Clearly, it is a conversion of the goods by the factor. This
must necessarily be so. The act being unauthorized, no privity is thereby created
between such third person and the principal. Such wrongful act cannot be held to
confer on the third person, as respects the principal, the rights, duties, or obligations
of the factor himself. Wherever authority to appoint a sub-agent exists, a privity is
created between the principal and such sub-agent, and the latter will be held directly
responsible to the principal. But, if no such privity exists, the sub-agent would be
responsible to his immediate employer ; and the remedy of the principal is against
his agent. Story on Agency, §§ 13, 201.

" The unauthorized disposal of the goods by the factor being a conversion, it clearly
follows that the principal has an election either to sue in trover, grounding his action
on the tort, or to waive the tort and recover the value of the goods in an action of
assumpsit, based upon the breach of the implied contract."

In Darling v. Stanwood, 14 Allen, .504 (1867), Foster, J., for the court said : " In
a business which requires or justifies the delegation of an agent's authority to a sub-

934 LOOMIS, CONGER, & CO. V. SIMPSON. [CHAP. VIII.

agent, who is not his own servant, the original agent is not liable for the errors or
misconduct of the sub-agent if he has used due care in his selection."

In De Bussche v. Alt, 8 Ch. D. 286, 310, 311 (C. A. 1878), Thesiger, L. J., for
the court, said : " As a general rule, no doubt, the maxim ' delegdtus non potest delegare '
applies so as to prevent an agent from establishing the relationship of principal and
agent between his own principal and a third person ; but this maxim when analyzed
merely imports that an agent cannot, without authority from his principal, devolve
iipon another obligations to the principal which he has himself undertaken to per-
sonally fulfil ; and that, inasmuch as confidence in the particular person employed ia
at the root of the contract of agency, such authority cannot be implied as an ordinary
incident in the contract. But the exigencies of business do from time to time render
necessary the carrying out of the iustructions of a principal by a person other than
the agent originally instructed for the purpose, and where that is the case, the reason
of the thing requires that the rule should be relaxed, so as, on the one hand, to enable
the agent to appoint what has been termed ' a sub-agent ' or ' substitute ' (the latter of
which designations, although it does not exactly denote the legal relationship of the
parties, we adopt for want of a better, and for the sake of brevity) ; and, on the other
hand, to constitute, in the interests and for the protection of the principal, a direct
privity of contract between him and such substitute. And we are of opinion that
an authority to the effect referred to may and should be implied where, from the con-
duct of the parties to the original contract of agency, the usage of trade, or the
nature of the particular business which is the subject of the agency, it may reasonably
be presumed that the parties to the contract of agency originally intended that such
authority should exist, or where, in the course of the employment, unforeseen emergen-
cies arise which impose upon the agent the necessity of employing a substitute; and
that when such authority exists, and is duly exercised, privity of contract arises be-
tween the principal and the substitute, and the latter becomes as responsible to the
former for the due discharge of the duties which his employment casts upon him, as
if he had been appointed agent by the principal himself."

In Barnard v. Coffin, 141 Mass. 37, 41 (1886), Field, J., for the court, said : " The
principle which runs through the cases is, that if an agent employs a sub-agent for
his principal, and by his authority, express or implied, then the sub-agent is the agent
of the principal, and is directly responsible to the principal for his conduct, and, so
far as damage results from the conduct of the sub-agent, the agent is only responsible
for a want of due care in selecting the sub-agent ; but if the agent, having undertaken
to do the business of his principal, employs a servant or agent, on his own account, to
assist him in what he has undertaken, such a sub-agent is an agent of the agent, and
is responsible to the agent for his conduct, and the agent is responsible to the princi-
pal for the manner in which the business has been done, whether by himself or by his
servant or agent." — Ed.

SECT. II.] EX PARTE SUTTON. 935

SECTION II.

Exceptions^ real or apparent.

Ex PARTE SUTTON.

In the matter of PETER MARSHALL, a Bankrupt.

Chancery. 1788.

[2 Cox, 84.]

In August, 1787, Lewis and Potter came to an agreement with Gib-
son and Johnson, bankers in London, that Gibson and Johnson should
accept bills for the use and accommodation of Lewis and Potter ; but
which bills were to be drawn by Peter Marshall, the bankrupt, and the
account was therefore opened in the name of Peter Marshall. Lewis
and Potter were to provide Gibson and Johnson with money before the
bills became due, so as to prevent their ever being in advance ; and for
this Gibson and Johnson were to receive \ per cent commission on the
bills so accepted.

Peter Marshall, accordingly, wrote a letter to Lewis and Potter, by
which he authorized them "to make use of his name, by procuration
or otherwise, to draw bills on Gibson and Johnson." The bill in ques-
tion was drawn by one of the clerks of Lewis and Pottei', and was
signed,

By procuration of Peter Marshall,

Robert Edgcumbe.

The petitioner was an indorsee of this bill for a valuable considera*
tion, and applied to prove it under the commission against Peter Mar-
shall, but was refused.

The ground of the refusal was, that this power of drawing in the
name of Peter Marshall, being given only to Lewis and Potter, could
not be delegated by them to any other person ; and that Marshall was
not bound by this signature of the clerk.

Lord Chancellor.^ In any case where the signature would not be
good against Lewis and Potter themselves it will not bind Marshall ;
but wherever this sort of authority is given, I must take it as given to
be made use of in the common course of business ; and this clerk only
did in the name of Marshall what he used to do in the name of Lewis
and Potter, and the petitioner must therefore be at liberty to prove his
debt.

^ Lord Thurlow. — Ed.

936 ALLEN V. merchants' BANK. [CHAP. VIII.

BOOTH V. MISTER.

Nisi Pkius. 1835.

[7 C. 4' P. 66.]

Case. The declaration stated that the cart of the defendant was so
negligently driven by the defendant's servant that it struck against a
cabriolet in which the plaintiff was riding, whereb}- the plaintiff was
injured. Plea, not guilty.

It appeared that a servant of the defendant, named Usher, whose
duty it was to have charge of the cart, was riding in the cart at the
time when the accident occurred, but that another person, who was
not in the defendant's service, was driving the cart, Usher having given
him the reins.

^rle and G. Henderson, for the defendant, submitted that the de-
fendant was not liable, on the ground that, as a person not in the
defendant's service was driving at the time of the accident, the allega-
tion that the cart was driven by the defendant's servant was not sus-
tained by the evidence.

Lord Abinger, C. B. I will reserve the point, but I think that the
evidence is sufficient to support the allegation. As the defendant's
servant was in the cart, I think that the reins being held by another
man makes no difference. It was the same as if the servant had held
them himself. Verdict for the plaintiff'.^

Piatt and Ball, for the plaintiff.

Erie and G. Henderson^ for the defendant.

S. & M. ALLEN V. THE MERCHANTS' BANK.
Court of Errors of New York. 1839.

[22 Wmd. 215.]

Error from the Supreme Court. This was an action of assumpsit,
brought in the Superior Court of the city of New York by S. & M.
Allen against the bank, to recover the amount of a bill of exchange,
drawn in New York on a mercantile house in Philadelphia, and depos-
ited by the plaintiffs with the Merchants' Bank in New York for collec-
tion, which was lost to the plaintiffs in consequence of the omission to
give notice of the non-acceptance to the indorsers. On 26th June,
1830, F. I. Spooner, at the city of New York, drew a bill of exchange
on Messrs. Boiler & Baker, of Philadelphia, for $600, payable five days

^ No motion was made on the point reserved. — Rep.
See Althorf v. Wolfe, 22 N. Y. 355 (1860). — Ed.

SECT. II.] ALLEN V. MERCHANTS* BANK. 937

after date to his own order. He indorsed the bill to James M.
Gould, who sold it to the plaintiffs and indorsed his name upon it.
The i>laintiffs, on the da}' of its date, deposited the bill for collection
with the Merchants' Bank, who sent it to the Philadelphia Bank in the
city of Philadelphia. On 28th June, the Philadelphia Bank delivered
the bill to its notary, who, on the same da}', presented it to the drawers
for acceptance, which being refused, he noted the bill for non accept-
ance, and returned it to the bank, but omitted to give notice of non-
acceptance to the indorsers.^ . .

Mr. Justice Oaklet charged the jurj', that the defendants, upon gen-
eral principles of law, and independent of any custom or usage, or of
any agreement, express or implied, were onl}' bound to transmit the
bill to Philadelphia in due time and to some competent agent ; and
were not liable for any negligence or omission of such agent in giving
notice of the non-acceptance of the bill. . . . To this charge the
plaintiffs excepted. Tlie jury found for the defendants, on which judg-
ment was entered. The plaintiffs removed the record into the Supreme
Court, where the judgment of the Superior Court was affirmed. See
the opinion of the court delivered by the Chief Justice, 15 Wendell,
486, et seq. The plaintiffs thereupon sued out a writ of error, remov-
ing the record into this court.

H. E. Davies, for the plaintiffs in error.

If. P. Edirards and G. Wood., for the defendants in error.

S. A. Foot., in reply.

By Senator Verplanck.^ What then is the ordinary undertaking,
contract, or agreement of a bank with one of its dealers, in the case of
an ordinary deposit of a domestic note or bill, payable in the same
town received for collection? It is a contract made with a corporate
body having onl}' a legal existence, and governed by directors, who
can act only b}' officers and agents ; or if it be with a private banker,
he too is known to carr}' on his business by clerks and agents. The
contract itself is to perform certain duties necessar}' for the collection
of the paper and the security of the holder. But neither legal con-
struction nor the common understanding of men of business can
regard this contract (unless there be some express understanding to
that effect) as an appointment of the bank as an attorney or personal
representative of the owner of the paper, authorized to select other
agents for the purpose of collecting the note and nothing more.
There is a wide difference made as well by positive law as by the
reason of the thing itself, between a contract or undertaking to do a
thing, and the delegation of an agent or attorney to procure tlie doing

1 The reporter's statement has been abbreviated by omitting part of the evidence,
and so much of the charge as was not made the subject of comment in the Court of
Errors. — Ei>.

2 The passages omitted in reprinting tliis o{)ini()n are almost exclusively restate-
ments of the facts, citations of authorities, and discussions of the question wliether
the notary was negligent, and of the question whether any distinction is to be based
upon the fact that the notary was a public officer. — Eu.

938 ALLEN V. MEKCHANTS' BANK. [CHAP. VIIL

the same thing, — between a contract for building a house (for exam-
ple), and the appointment of an overseer or superintendent, authorized
and undertaking to act for the principal, in having a house built. The
contractor is bound to answer for au}' negligence or default in the per-
formance of his contract, although such negligence or default be not
his own, but that of some sub-contractor, or under-workman. Not so
the mere representative agent, who discharges his whole duty if he acts
with good faith and ordinary- diligence in the selection of his materials, the
forming his contracts, and the choice of his workmen. Now in the case
of the deposit for collection of a domestic note or bill pa^'able in the same
town, no one can imagine that this, instead of being a contract with the
bank to use the proper means for collecting the paper, is a mere delegation
of power to act as an attornej' for that purpose. . . .

Is there anything in the mere fact of the paper being payable iu another
city, and therefore requiring the aid of other agents, sufficient to take that
case out of the general rule ? 1 mean irrespectively of any agreement or
implied understanding as to the matter. The Chief Justice, iu delivering
the opinion of the Supreme Court, holds that there is, and says: "A
note or bill left at a bank, and received for the purpose of being sent to
some distant place for collection, would seem to imply, upon a reason-
able construction, no other agreement than that it should be forwarded
with due diligence to some competent agent, to do what should be
necessary in the premises. The language and acts of the parties fairly
import so much, but nothing beAond it. The person leaving the note
is aware that the bank cannot personally attend to the collection, and
that it must therefore be sent to some distant or foreign agent." This
seems to me to assume the very question in dispute. In a deposit of
a note for collection, payable in the same place, the holder is equally
aware that the bank cannot personally attend to the collection, and its
management must be left to some one or more competent agents. But
he makes an implied contract with the bank that the proper and expe-
dient means shall be used to collect his note. So he does as to a
foreign debt ; and in each case he alike presumes that proper agents
will be employed. In neither case has he any knowledge of the agents,
or privity with them. I can perceive no reason for liability or exemp-
tion from liability- in either case which does not equally apply to the
other. The bank, if its officers think fit, and the dealer will consent,
ma}' var}' that liabilit}' in either case. It ma}' receive the paper only
for transmission to its correspondents. That would form a new and
different contract, and would limit the responsibility to good faith and
due discretion in the choice of an agent. But if this be not done, or
unless there be some implied understanding on the subject, I see no
difference between the responsibilit}' assumed in the undertaking to
collect foreign bills, and that for collecting domestic paper, payable at
home. ...

On the question being put, shall this judgment be reversed? the
members of the court divided as follows : —

SECT. II.] COMMEKCIAL BANK OF LAKE EKIE V. NORTON. 939

lu the affirmative: Senators Fox, Hawkins, Hunt, Huntington,
Lee, H. a. Livingston, Mayxard, Moseley, Nicholas, Peck, Skin-
ner, Van Dyck, Verplanck, Wager — 14.

In the negative: The Chancellor/ and Senators Beakdslet,
Clark, Hull, Hunter, Johnson, Jones, Paige, Spraker, Sterling
— 10.

Whereupon the judgment of the Supreme Court was reversed, a
venire de novo directed to be awarded, and the costs in this court and
in the Supreme Court ordered to abide the event.

In this case, the court adopted the following resolution : Resolved,
that when a bank or broker, or other money-dealer receives, upon a
good consideration, a note or bill, for collection in the place where
such bank, broker, or dealer carries on business, or at a distant place,
tlie party receiving the same for collection is liable for the neglect,
omission, or other misconduct of the bank or agent to whom the note
or bill is sent either in the negotiation, collection or paying over the
money, by which the money is lost or other injury sustained by the
owner of the note or bill, unless there be some agreement to the con-
trary, express or implied.^

COMMERCIAL BANK OF LAKE ERIE v. NORTON
AND FOX, Impleaded.

Supreme Court of New York. 1841.

[1^///, 50L]

Assumpsit, tried at the Erie Circuit, before Gridley, C. J., Aug. 29,
1840. The plaintiffs sought to recover as indorsees of two bills of
exchange drawn b}' Gillespie, Joice & Co., on E. Norton & Co., pava-
ble to Gillespie & Woodruff, at sixty days after date. The firm of E.
Norton & Co. was composed of said Norton and Simeon Fox, two of
the defendants, who alone defended the suit.

The acceptance on each of the bills was in this form : " E. Norton
& Co. — Per A. G. Cochrane ; " and was in Cochrane's handwriting.

The bills were discounted on the da}' of the date, bj' the plaintiffs
for the drawers, and were afterwards accepted for the drawers* accom-
modation ; the defendants Norton and Fox having no funds of the
drawers, but the latter being then largely indebted to them.

Henry Norton testified on the trial that he directed Cochrane to
accept these bills, the latter being the book-keeper of E. Norton & Co.
As to Henry's own authority, he testified that he was the general agent
of E. Norton & Co., financial and otherwise, they not interfering in

1 Chancellor Walworth delivered a dissenting opinion. — Ed.

2 Ace. : Ayrault r. Pacific Bank, 47 N. Y. 570 (1872). —Ed.

940 COMMEKCIAL BANK OF LAKE ERIE V. NORTON. [CHAP. VIIL

the business, but being engaged mostly elsewhere ; that, with their
knowledge and assent, he had been in the habit of drawing drafts,
making notes and indorsements for them ; though, by the written arti-
cles of co-partnership between E. Norton and Fox, his (the witness')
power was more limited.

The defendants' counsel moved for a nonsuit upon the ground that
the acceptances were made without authority ; but the circuit judge
denied the motion, and the defendants' counsel excepted. He further
insisted at the trial, that the acceptances were without consideration,
and therefore void. The circuit judge ruled the contrary ; whereupon
the said counsel again excepted. Verdict for the plaintiffs. The de-
fendants now moved for a new trial on a bill of exceptions.

-El JVorton, for defendants.

H. K. Smith, for the plaintiffs.

Bi/ the courts Cowen, J.^ But Henry Norton, it is said, did not
appear on the proof to have had any adequate power to accept. There
was, however, at least, evidence of authority sufficient to go to the
jury ; and all the judge did, on this point being started, was to refuse
a nonsuit. I admit that the powers conferred on liim by the defend-
ants' articles of copartnership did not reach accommodation accept-
ances ; nor did it appear that he had ever made such an acceptance
before. But he said he was the general agent of the defendants' firm,
having the sole management of the business ; and had, with the de-
fendants' knowledge, drawn drafts and made notes and indorsements
for them. True, he did not mention the specific act of acceptance ;
but his general powers in the business, and the usage of putting their
names to commercial paper in all other shapes, was the same thing,
and calculated to raise an inference in the public mind that he had
such a power as to this. It is not necessary, in order to constitute a
general agent, that he should have before done an act the same in
specie with that in question. If he have usuall}' done things of the
same general character and eflTect with the assent of his principals,
that is enough. A. holds himself out to the world as B.'s partner ;
this authorizes B. to do, in the name of both, all things which one
partner can do in the name of the firm ; and, among others, to draw,
accept, and indorse bills and notes. This is on the principle that one
partner is the general agent of the concern. An}' other agent recog-
nized as holding the like power may do the same thing. The agency
of H. Norton extended to the whole business of the defendants. Nei-
ther of the latter pretended to interfere. AVhatever transaction there-
fore the world might regard as pertaining to that business, and clearly
an acceptance is one, ought to bind the firm. It is like the case stated
by Malyne, — a known servant taking up moneys be3'ond the seas upon
his master's account, and drawing a bill upon him. He is liable, though
he refused to accept ; because, adds the writer, it is understood that

1 The opinion is shortened by omitting at the beginning and at the end passages
not pertaining to Agency. — Ed.

Sf:CT. II.] COMMERCIAL BANK OF LAKE ERIE V. NORTON. 941

the money is obtained on his credit, nnless he have made public decla
ration denouncing his servant to the brokers of exchanges and other-
wise. Mai. Lex. Merc. pt. 3, eh. 5, § 6, p. 264, ed. of 1656. Chitty
says the authority to draw, indorse, or accept, by procuration, need not
be special ; " but the law may infer an authorit}- from the general nature
of certain acts permitted to be done, and usual employ is evidence of
an authority." Chitt. on Bills, 35 u, Am. ed. of 1839. These are
very nearly the words of Lord Eldon, Cli. in Davison v. Robertson, 3
Dow's Pari. Rep. 218, 229, whom Chitty cites. Henry Norton was the
factotum of the firm. A more com[)rehensive general agenc\' can hardl}''
be conceived.

But it is said he could not delegate the power to accept. This is not
denied, nor did he do so. The bills came for acceptance ; and having
as agent made up his mind that they should be accepted, he directed
Cochrane, the book-keeper, to do tlie mechanical part, — write the ac-
ceptance across the bills. He was the mere amanuensis. Had anything
like the trust which is in its nature personal to an agent, a discretion,
fur instance, to accept what bills he pleased, been confided to Cochrane,
his act would have been void. But to question it here would be to deny
that the general agent of a mercantile firm could retain a carpenter to
make a box, or a cooper to make a cask. The books go on the ques-
tion whether the delegation be of a discretion. Such is the verv latest
ease cited by the defendants' counsel : Emerson /.'. The Prov. Hat
Manufacturing Co., 12 Mass. Rep. 237, 241, 242 ; and the latest book.
2 Kent's Com. 633, 4th ed. Blore v. Sutton, 3 Meriv. 237, is among the
strictest cases I have seen. There the clerk of the agent put his own
initials to the memorandum, by direction of the agent ; and held, insuflfl-
cient. Henderson r. Barnewall, 1 Young & Jerv. 387, followed it.
Both were cases arising under the statute of frauds, which requires that
the memorandum should be signed by the principal or his agent ; and I
admit it is ver}' difficult to distinguish the manner of the signatures
there from that now in question b}- Cochrane. Everything there seems
to have been mechanical mereh', as here ; and there may be some doubt,
I should think, whether such cases can be sustained. At anj^ rate, in
our attempt to apply them, we are met with a case as widel}- the other
way. E.I' parte Sutton, 2 Cox, 84. The rule as there laid down is,
that " an authority given to A. to draw bills in the name of B. may be
exercised by the clerks of A." Such is the marginal note, and it is en-
tirel}' borne out by the case itself. Peter Marshall wrote to Lewis &
Potter authorizing them " to make use of his name b}' procuration or
otherwise to draw bills on G. & J." The clerk of Lewis & Potter
drew the bill, signing thus: "By procuration of Peter Marshall,
Robert Edgecumbe." The Lord Chancellor put it on the ground that
the signature of the clerk would have bound Lewis & Potter, had he
signed their name under the general authorit}' which he had. We thus
make ver}' little progress one wa}' or the other on direct English au-
thority. Left to go on the principle of any other English case I havo

942 DORCHESTER, ETC. BANK V. NEW ENGLAND BANK. [CIIAP. VIIL

seen, and there are man}', all we have to say is, I think, that the agent
shall not delegate his discretion, but may at least do any mechanical
act b}' deput}'. I do not know that the language of Lord P^Uenborough
in Mason v. Joseph, 1 Smith's Rep. 406, has been anywhere directly
carried into an adjudication. But it sounds so much like all the cases
professing to go on principle, that I can scarcely* doubt its being law.
His Lordship said, " It is true an attorne}^ appointed by deed cannot
delegate his authority to a third person. He must exercise his own
judgment on the principal subject for the purpose of which he is ap-
pointed ; but as to any mere ministerial act, it is not necessary that he
should do it in person, if he direct it to be done or upon a full knowl-
edge of it adopt it. Suppose, for instance, he had got the gout in his
hands, and could not actually sign himself, he might have authorized
another to sign for him." . . . New trial denied.^

DORCHESTER AND MILTON BANK v. NEW ENGLAND

BANK.

Supreme Judicial Court of Massachusetts. 1848.
[1 Cush. 177.]

This was an action of assumpsit for the recovery of damages by the
plaintiffs against the defendants, for not accounting for the proceeds
of certain accepted bills of exchange, payable at Washington, in the
District of Columbia, in six months from their respective dates, which
had been received by the defendants from the plaintiffs for collection.

On the trial in this court, before Wilde, J., the following facts ap-
peared in evidence. On the part of the plaintiffs, it was proved that
the bills in question had been discounted by them, and left, at different
times during the months of October, November, and December, 1837,
for collection, with the defendants, who were their general agents in
Boston ; that the defendants had never paid over the amount of the
bills, or returned them to the plaintiffs ; that the defendants always
charged the plaintiffs a commission for making collections out of Bos-
ton ; and that the plaintiffs, on the 21st February, 1844, demanded
of the defendants that the pi'oceeds of the bills should be placed to
their credit.

On the part of the defendants, it was proved that, from the year
1833 or 1834, until the failure of the Commonwealth Bank, the}- had
employed that bank to make collections for them and their customers
at Washington, and other places at the South, where the defendants

1 See Lord v. Hall, 8 C. B. f.27 (1849) ; Williams r. Woods, 16 Md. 220, 248-250
(1860) ; Norwich University v. Denny, 47 Vt. 13 (1874) ; Weaver v. Carnall, 35 Ark.
198 (1879). — Ed.

SKCT. II.] DORCHESTEK, ETC. BANK V. NEW ENGLAND BANK. 943

had no agent ; that they placed the bills received by them of the plain-
tiffs ill the hands of the Commonwealth Bank for collection, — first in-
dorsing them thus, " Pay to C. Hood, cashier," which was the form of
indorsement uniforml}' adopted by them in such cases; that the Com-
monwealth Bank then was, and to the time of its failure, Jan. 11,
1838, continued to be, in good credit; that the bills in question were
duh' transmitted by the Commonwealth Bank to its correspondent in
Washington, the Bank of the Metropolis ; that all the bills had been
accepted, but none of them had become due on the 11th of January,
1838, when the Commonwealth Bank stopped payment ; that on the
13th of January the defendants took measures to demand the bills of
the Bank of the MetropoUs ; that the latter refused to deliver the bills,
but afterwards collected them, and claimed to hold the proceeds on
account of a balance due to them from the Commonwealth Bank ; and
that the defendants thereupon commenced a suit for the recover}- of
the proceeds of the said bills against the Bank of the Metropolis, —
which suit at the time of the trial was still pending, and the record of
which is in the case, and may be referred to, subject to any legal ob-
jections thereto, by the plaintiffs.^

It was also proved, on the part of the defendants, that, in 1833 or
1834, the several banks emploj'ed by the government of the United
States, as deposit banks, entered upon a system of mutual dealings, for
the purpose of facilitating exchanges and transfers of funds ; that the
Commonwealth Bank was one of these banks, and was frequently em-
ployed by other banks, in Boston and elsewhere, to collect monej- in
places (especialh' at the South and "West, where the latter had no cor-
respondents), and that in all such cases bills received for collection were
indorsed in the manner above mentioned ; and that since that time it
had been the general practice of the banks in Boston, whenever any
one of them received notes or drafts for collection which were paj^able
at a place where it had no correspondent, to pass over the same for
collection to some other bank in Boston which had a correspondent in
such place, by a general indorsement exacth- like that made use of
in indorsing the bills in question to the Commonwealth Bank.

There was no evidence that any loss had ever happened in conse-
quence of the failure of a bank in which bills or drafts had been thus
deposited for collection, or that the owner of any such note or draft
had in any instance sustained a loss in consequence of a failure of the
collecting bank. It was proved that, although it was the general prac-
tice of the banks in Boston to receive bills and notes for collection
which were payable in places where they had no correspondents, j-et
that they sometimes refused to undertake the collection of such paper.

The cashier of the plaintiffs testified that in the course of business
at their bank, within the last eight or ten years, they had discounted
and received a large quantity of Southern and other drafts, though not

1 See 1 Howard, 234; 6 lb. 212. — Rep.

944 DORCHESTER, ETC. BANK V. NEW ENGLAND BANK. [CHAP. VIII.

to a great amount on Washington, all of which were collected through
the New England Bank ; that in three or four instances, within the
period mentioned, protested drafts had been returned to the plaintiffs
by the New J^ngland Bank, from which it appeared, that that bank had
indorsed bills and drafts, received by it for collection, to other banks in
Boston in tlie same form in which the bills were indorsed to the Com-
monwealth Bank ; and that the plaintiff had never found any fault with,
or protested against, the emploj'ment b}' the defendants of other banks
in Boston, though the witness could not sa}' with certainty whether
anv such instances had occurred before the bills in question were
placed in the hands of the defendants.

The cashier of the defendants produced and verified the protest of a
draft sent by the plaintiffs to the defendants for collection in Mobile
in Ma}', 1836, and a copy of the defendants' letter returning the same,
with a protest, to tlie plaintiffs ; which draft was indorsed b\- the plain-
tiffs ■* and b}' the defendants, in the same manner with the bills now in
question, to the cashier of the Merchants' Bank in Boston, to which it
was sent for collection.

On these facts the case was withdrawn, by consent, from the jury,
and submitted for consideration to the whole court, who are to order
a nonsuit, default, or new trial, as in their judgment the case ma}'
require.

i?. Fletcher, for the plaintiffs.

S. Bartlett^ for the defendants.

Wilde, J.^ This is an action of assumpsit; but the foundation of
the plaintiffs' claim is the alleged negligence of the defendants in not
collecting certain bills left with them for collection by the plaintiffs.

The defendants proved that they placed these bills in the hands of
the Commonwealth Bank for collection, the same being payable in the
cit}- of Washington, where the defendants had no correspondents.
This, the plaintiffs' counsel contend, the defendants had no right to
do, on the ground that an agent has no right to delegate his authority
to a sub-agent without the assent of his principal. This, no doubt, is
generall}' true ; but when, from the nature of the agenc}', a sub-agent
or sub-agents must necessaril}' be employed, the assent of the principal
is impUed. Such was the nature of the agency in the present case. It
could not have been expected that the defendants would employ one of
their own officers to proceed to Washington to obtain payment of the
bills. The bills undoubtedly were intended to be transmitted to Wash-
ington for colleciion ; and if the defendants employed suitable sub-
agents for that purpose, in good faith, the}' are not liable for the neglect

1 In the argument for the defendants, and in the opinion of the court, it is stated
that the bills were indorsed by the plaintiffs to the defendants in the same manner
that they were indorsed by the defendants to the Commonwealth Bank; but the fact
does not distinctly appear from the evidence contained in the statement of the case. —
Eep.

^ The Chief Justice did not sit in this case. — Rbp.

SECT. II.] DORCHESTER, ETC. BANK V. NEW ENGLAND BANK. 945

or default of the snb-agents. This was so decided in Fabens v. Mer-
cantile Bank, 23 Pick. 330, The Chief Justice, in delivering the opinion
of the court, sa3-s : "It is well settled that when a note is deposited
with a bank for collection, which is payable at another place, the whole
duty of the bank so receiving the note, in the first instance, is season-
ably to transmit the same to a suitable bank, or other agent, at the
place of payment. And as a part of the same doctrine, it is well set-
tled that if the acceptor of a bill, or promisor of a note, has his resi-
dence in another place, it shall be presumed to have been intended and
understood between the depositor for collection and the bank that it
was to be transmitted to the place of the residence of the promisor."
This decision of the court on both points is, we think, well founded in
principle, and supported by a decided weight of authorit}'. The only
opposing decision is in the case of Allen r. Merchants' Bank, which
was first reported in 15 Wend. 482, and which was afterwards removed
to the Court of Errors, where the judgment of the court below was re-
versed by a majority of the Court of Errors. This reversal is opposed
to a number of decisions of great authority, and is not, as we think,
well founded in principle. If the bank in that case acted in good faith,
in selecting a suitable sub-agent where the bills were payable, there
seems to be no principle of justice, or public polic}', by which the bank
should be made liable for the neglect or misfeasance of the sub-agent.
And it is admitted bj* Mr. Senator Verplanck, who states the grounds
of the reversal of the judgment, that the bank would not have been
liable if there had been an understanding or agreement, express or
implied, that the bills were to be transmitted to another bank for col-
lection. Now, we think, in that case as in this, there was manifestly
such an understanding. There is another view of that case, taken by
the learned senator, in which we cannot concur. He makes no distinc-
tion between the neglect of the officers of the bank, where the bills
were deposited, and that of the bank to which they were transmitted
for collection. We think the distinction is obvious. We agree, how-
ever, with the learned senator, that the decisive question in such cases
is what was the understanding of the parties as to the duties the col-
lecting bank undertook to perform. And as to this, we have no doubt
of the understanding of the parties in the present case. That was, we
think, that the defendants were to transmit the bills, or to cause them
to be transmitted, to some suitable bank or other agent in Washington
for collection ; and the questions are whether, in employing the Com-
monwealth Bank to transmit the bills, the defendants acted in good
faith, and if so, whether the}' are responsible for the failure of that
bank. That the defendants acted in good faith we cannot doubt. The
Commonwealth Bank at the time was in perfectly good credit, and had
great facilities for obtaining payment of bills and notes pa^'able in dis-
tant States. The defendants were the plaintiffs' general agents, and
the}' had no instructions ; the}' were, therefore, to exercise their best
judgment as to the transmission of the bills and the remittance of

946 DORCHESTEK, ETC. BANK V. NEW ENGLAND BANK. [CIIAP. VIII.

the money when collected. And we see no cause to doubt that they
acted in good faith, and exercised a sound judgment. It was objected
that the defendants ought to have made restricted indorsements ; but
it is a satisfactory answer that the defendants made their indorsements
in the same manner the plaintiffs did. Considering, then, that the
defendants acted in good faith, and exercised a sound judgment in
employing the Commonwealth Bank, we think there is no principle of
law or equity which can subject them to any liability by reason of the
subsequent failure of that bank.

In our opinion, the defendants' responsibility was limited to good
faith and due discretion in the choice of an agent to transmit the bills,
and to procure a remittance of the money when paid. This case is not
distinguishable from the case of Fabens v. Mercantile Bank, and the
cases there cited.

We do not think that the proof of an}' usage is necessar}- to support
these decisions ; but in the present case the usage is well proved to
have been uniform, in similar cases, ever since the j'ear 1833 or 1834,
three or four ^ears before these bills were deposited in the defendant
bank.

It was also proved that one bill had been transmitted in like manner
by the defendants for the plaintiffs, and returned to them with protest,
and without objection by them. This was in 1836, more than a year
before the bills in this case were deposited. This would be sufficient
notice of the usage or manner in which the defendant transacted such
business, if an}' such notice were required. It seems, however, that
the usage of a bank is binding on all persons dealing with the bank,
whether the}' know of the usage or not. Lincoln and Kennebeck Bank
V. I*age, 9 Mass. 155 ; Bank of Washington v. Triplett, 1 Pet. 25.
That is a point, however, not necessary to be decided in this case.

Plaintiffs nonsuit}

1 Ace: East Haddam Bank v. Sco\il, 12 Conn. 303 (1837); Guelich v. National
State Bank, 56 Iowa, 434 (1881) ; First National Bank f. Spra.jue, 34 Neb. 318 (1892).

Contra: Montgomery County Bank v. Albany City Bank, 7 N. Y. 459 (1852) ; Ex-
change National Bank v. Third" National Bank, 112 U. S. 276 (1884); Power r. First
National Bank, 6 Mont. 251 (1887).

The authorities are collected in the cases cited in this note, and also in Ames' Cases
en Trusts (2d ed.), 14, n. (1). — Ed.

SECT. II.] HALI3PTZ0K V. GKEAT NOKTHERN RAILWAY CO. 947

JOHN HALUPTZOK v. GREAT NORTHERN RAILWAY CO.
Supreme Court of Minnesota. 1893.

[55 Minn. 446.]

Appeal by defendant, Great Northern Railway Company, from an
order of the District Court of Wright County, Thomas Canty, J., made
April 15, 1893, denying its motion for a new trial. ^

W. E. Dodge and Wtndell Sc Pidgeoa, for appellants.

W. E. Culkin and J. T. Alley, for respondent.

Mitchell, J. The plaintiff brought this action to recover for per-
sonal injuries to his infant child, caused by the negligence of the alleged
servant of the defendant. 1878 G. S. ch. 66, § 34.

The injuries were inflicted by one O'Connell, and the only question
presented by this appeal is whether O'Connell was defendant's servant.
The evidence, in which there is no material conflict, is substantially as
follows : The defendant maintained a public depot and freight and
passenger station at the village of Waverl}-. The premises were
owned and controlled by the defendant, but the Great Northern Ex-
press Coinpan}' and the Western Union Telegraph Company had their
oflfices in the same building, one Westinghouse being the common agent
for all three companies. Westinghouse had exclusive charge of all of
defendant's business at the station. He testified that he had no au-
thority to employ any assistants, such authority being exclusiveh'^
vested in the general oflScers of the compan}- ; and, as respects express
authority-, this testimony is not contradicted. For a year or more
before the injur}' complained of, Westinghouse had permitted a young
man named Foutch to use and practise on the instruments in the office,
for the purpose of learning telegraph}- ; and during that time Foutch
had been in the habit, as occasion required, of assisting Westinghouse
in the performance of his railwa}' duties, such as selling tickets, hand-
ling freight, putting out switch lights, etc. He had no contract with
the railwa}' company, and received no wages; the work he did evi-
dently being in return for the privilege of the office, and the use of the
instruments, in learning telegraphy. There is no evidence that the
general officers of the defendant knew of or assented to Foutch's per-
forming this work, except the length of time it had continued, and the
absence of any testimony that the}' ever objected. About ten days
before the accident, Westinghouse, with the permission of the Western
Union Telegraph Company, gave O'Connell the privilege of the office,
and the use of the instruments, for the purpose of learning telegraphy,
evidently under substantially the same arrangement by which he had
previously given Foutch similar privileges. O'Connell had no contract
with the defendant, and received no wages. The time between his

1 The reporter's statemoiit has been omitted. — Ed.

948 HALUl'TZOK V. GREAT NORTHERN RAILWAY CO. [CHAP. VIII.

coming into tlie office and the date of the accident was so brief that
the evidence is very meagre as to his doing raihoad worii about the
station during that time, but there was evidence tending to show that
he had on several occasions, with the knowledge and consent of West-
inghouse, handled freight. On the day in question, he went to work,
with a truck, to move some goods from the station platform into a
freight-room. Foutch assisted him b}' piling up the goods in the room
while O'Connell carried them in. While thus handling the truck,
O'Connell ran it against plaintiff's child, who was walking around the
depot, and inflicted the injury complained of. There is no evidence
that at or prior to the accident the general officers of the defendant
knew that O'Connell was employed about the station. But both
Foutch and O'Connell, after the accident, continued at the depot, prac-
tising telegraph}", and assisting Westinghouse, as before, in selling
tickets, handling freight, etc., and were still doing so at the date of the
trial, which was live months after the accident, and over four months
after the commencement of this action ; and, while there is no direct
evidence that this was with the knowledge of the general officers of
the defendant, there is no evidence that they did not know of it, and
none that they ever objected to it. Such we believe to be a fair and
full statement of the effect of the evidence.

Under the doctrine of respondeat superior, a master, however careful
in the selection of his servants, is responsible to strangers for their
negligence committed in the course of their employment. The doc-
trine is at best somewhat severe, and, if a man is to be held liable for
the acts of his servants, he certainl}' should have the exclusive right to
determine who they shall be. Hence, we think, in ever}' well-con-
sidered case where a person has been held liable, under the doctrine
referred to, for the negligence of another, that other was engaged in
his service either b}' the defendant personall}', or by others by his au-
thorit}', express or implied. There is a class of cases, of which Bush
V. Steinman, 1 Bos. & P. 404 (often doubted and criticised), is an
example, which seem to hold that a person may be liable for the neg-
ligence of another, not his servant. But these were generall}' cases
where the injur}' was done by a contractor, sub-contractor, or their ser-
vants, upon the real estate of the defendant, of which he was in pos-
session and control ; and they seem to proceed upon the theory that,
where a man is in possession of fixed property, he must take care that
it is so used and managed by those whom he brings upon the premises
as not to be dangerous to others. In that view, he is held liable, not
for the negligence of another, but for his own personal negligence in
not preventing or abating a nuisance on his own premises. See
Laugher v. Pointer, 5 Barn. & C. 547. There will also be found in
some text-books statements to the effect that where a servant is em-
plo}ed to do a particular piece of work, and he employs another person
to assist him, the master is liable for the acts of the person so em-
ployed, as much as for the acts of the servant himself. Thus generally

SECT. II.] HALUPTZOK V. GREAT NORTHERN RAILWAY CO. 949

stated, without qualification, tlie proposition is misleading, as well as
inaccurate.

The cases most generall}- cited in support of it are Booth v. Mister,
7 Car. & P. 66, and Althorf r. Wolfe, 22 N. Y. 355. In Booth v.
Mister, the defendant's servant, whose duty it was to drive his master's
cart, was riding in the cart, but had given the reins to another person,
who was riding with him, but was not in the master's employment, and
through the negligent management of this other person the plaintiff
was injured. The defendant was held liable, not for the mere negli-
gence of such other person, but for the negligence of the servant him-
self, who was riding in the cart, and either actively or passively
controlling and directing the driving, as much as if he had held the
reins in his own hands.

In Althorf v. Wolfe, a servant, having been directed to remove snow
from the roof of his master's house, secured the services of a friend to
assist him ; and while the two were engaged together, in throwing the
snow from the roof into the street, a passer-by was struck and killed.
It was held that it was immaterial which of the two threw the ice or
snow which caused the injur}- ; that in either case the master was liable.
The case is a very unsatisfactor}- one, and it is very difficult to ascer-
tain the precise ground upon which it was decided. Wright, J.,
seems to put it on one or all of three grounds: (1) That the servant
had implied authority to procure assistance ; (2) That defendant's
family, who were left in charge of the house, ratified the act of the ser-
vant ; and (3) upon the same ground upon which Booth v. Mister was
decided. On the other hand, Denio, J., seems to place his opinion
upon the ground upon which we have suggested that Bush i\ Steinman
proceeds. It is also to be observed that two of the justices dissented.
But neither of these cases, if righth- understood, is in conflict with the
proposition with which we started out, — that a master, as such, can
be held liable for the negligence only of those who are employed in his
work by his authority ; and hence, if a servant who is emplo^^ed to per-
form a certain work procures another person to assist him, the master
is liable for the sole negligence of the latter, only when the servant
had authority to employ- such assistant. Such authority may, however,
be implied as well as express, and subsequent ratification is equivalent
to original authorit}- ; and. where the servant has authorit}' to employ
assistants, such assistants, of course, become the immediate servants
of the master, the same as if employed by him personally. Such au-
thority may be implied from the nature of the work to be performed,
and also from the general course of conducting the business of the
master by the servant for so long a time that knowledge and consent
on part of the master ma}' be inferred. It is not necessary that a
formal or express employment on behalf of the master should exist, or
that compensation should be paid by or expected from him. It is
enough to render the master liable if the person causing the injurv was
In fact rendering service for him by his consent, express or implied.

950 HALUPTZOK V. GREAT NORTHERN RAILWAY CO. [CHAP. VIII.

Under this view of the law, the evidence made a case for the jury to
deterniine whether Westinghousc had implied authorit}' from the de-
fendant to employ O'Connell as an assistant, or, to state the question
ditferently, whether O'Connell was rendering these services for the
defendant by its consent.

If the evidence were limited to the employment of O'Connell alone,
and to what occurred during the ten days preceding the accident, it
would probably be insufficient to support a verdict in favor of the
plaintiff. But it is an undisputed fact that Westinghouse had for over
a year before this been employing Foutch as an assistant under a simi-
lar arrangement, without, so far as appears, any objection on part
of the defendant, although the length of time was such that its knowl-
edge of the fact ma}' be fairly inferred. It is true that implied au-
thority to employ Foutch as assistant would not necessarily include
authority to employ O'Connell, but the fact of Foutch's long-continued
employment has an important bearing upon the question of Westing-
house's implied authorit}', as indicated by the manner of conducting
the business ; and, as bearing upon this same question of implied au-
thority, the fact is significant that after the accident both Foutch and
O'Connell continued, without objection, to perform these services for
defendant, as assistants to Westinghouse, up to the date of the trial.
Additional force is added to all this, when considered in connection
with the nature of the duties of a station agent at a place like this,
which are of such multifarious character as to render the employment
of an occasional assistant not only convenient, but almost necessary.
The facts that the consideration for the services of these assistants
moved from Westinghouse, rather than defendant, and that their aid
was for the accommodation or convenience of Westinghouse, are not
controlling.

There is nothing in the point that defendant is not liable because
the freight which O'Connell was moving had been delivered to the con-
signee, who had promised to take care of it where it lay, on the station
platform.

O'Connell's act was in the line of his employment, and was being
done in furtherance of defendant's business. The liabilit}' of the de-
fendant to third parties cannot be made to depend upon the question
whether, as between it and the owner of the goods, it owed the latter
the continued duty of taking care of them.

Order affirmed.

SECT. II.] GWILLIAM V. TWIST. 951

GWILLIAM V. TWIST and another.

Court of Appeal. 1895.

[ [1895] 2 Q. B. 84.]

Appeal from the judgment of a Divisional Court (Lawrance and
Wright, JJ.) on an appeal from the Count}- Court of Birmingham.
[1895] 1 Q. B. 557.

The action was for damages for personal injuries.

The defendants were the proprietors of an omnibus which was being
driven througli the streets of Birmingham b}- a driver in the employ-
ment of the defendants named Harrison. A police inspector, being of
opinion that Harrison was not sober and could not drive the omnibus
with safety, ordered hhn to discontinue driving it and get down, which
he did. The omnibus was at that time about a quarter of a mile from
the defendants' yard. A man named Veares, who had formerly been
a conductor in the defendants' employment, and who happened to be
standing by, volunteered to drive, and did drive the omnibus home to
the defendants' yard. While on the way there he drove over and in-
jured the plaintiff, who was a passenger in the street. There was a
conflict of evidence as to whether the police inspector ordered Veares
to drive the omnibus home, or Harrison employed him to do so. The
county court judge found as follows: That the accident was caused by
the negligent or unskilful driving of Veares ; that the police inspector
did not order Veares to drive the omnibus home, but the driver and
conductor acquiesced in his doing so; and that, as to the driver being
the worse for drink, it was not necessar}- to give an opinion, but the
inspector honestly thought that he was not in a fit state to drive, and
acted properl}' in telling him to discontinue driving. The county
court judge on these findings gave judgment for the plaintiff for £30
damages. He said, in giving judgment, that the driver Harrison and
the conductor, having acquiesced in Veares' driving, must be taken to
have authorized his driving on behalf of the defendants ; that, as it
was clearly necessary that some one should drive the omnibus back to
the yard, it was, under the circumstances, within the scope of their
authority to autiiorize Veares to drive ; and that the defendants were
therefore liable for Veares' negligence.

The defendants appealed against the judgment of the county court
judge.

The Divisional Court dismissed their appeal.

Edward Pollock^ for the defendants.

JBoydell Houghton., for the plaintiff.

Lord Esher, M. R. In this case a question of great importance ha8
been raised, which, however, it is not necessary for us to decide ;
namely, whether, if there were a necessity for a servant to delegate
his duty to another person, that delegation would make that other
person a servant of the master so as to render the latter responsible

952 GWILLIAM V. TWIST. [CHAP. VIII.

for his acts. It seems to me perfecth' clear that a servant employed
for a particular purpose can have no authority to delegate the perform-
ance of his duty to another person, unless there is a necessity for so
doing. The question therefore arises, whether there was in this case
any evidence upon which the count}- court judge could reasonabl}' find
that there was a necessity to delegate the duty of driving the omnibus
to Veares. I doubt whether the learned countv court judge has in
truth found that there was any such necessity ; for he appears to have
made certain specific findings of fact, among which there is no finding
that there was such a necessity, and then in his judgment he subse-
quently seems to have treated the case upon those findings of fact as
being one of necessit}' : but I will assume that he intended to find that
there was in fact such a necessity. The question is whether there was
evidence to support that finding. Was there any necessity for the
delegation of the duty of driving the omnibus to Veares without con-
sulting the employers? If there is an opportunit}' to consult the mas-
ter on the subject, I do not see how it can be necessary' that the
servant should act on his own view. Here there was an omnibus in
the street, and the driver became incapacitated for driving it b}- reason
of an order given by a policeman which he was bound to obe}'. It was
only a quarter of a mile from the yard vvliere the owners of the omni-
bus carry on business. I cannot see anything to show that the omnibus
might not have safely remained where it was while the conductor or
&ome other messenger went to the owners' yard to inform them what
had happened, and to ask what was to be done. If that were so, I
think the judge would be bound to direct a jur}-, if there were one,
or, if trying the case without a jur}', would be bound to find himself,
that it had not been made out that there was any necessity for the
servant to delegate his dutj' to another person without communicating
with his master. There being no evidence on which the judge was
entitled to say that such a necessity had arisen, he was bound, I think,
to hold that the servant had no authorit}' to delegate his dut}- to
another person, and that, consequently, the defendants could not be
made responsible for the negligence of that other person. For these
reasons I think the appeal must be allowed.

I am ver}' much inclined to agree with the view taken by Eyre, C. J.,
in the case of Nicholson v. Chapman, 2 H. Bl. 254, and by Parke, B.,
in the case of Hawtayne v. Bourne, 7 M. & W. 595, to the effect that
this doctrine of authority' by reason of necessity is confined to certain
well-known exceptional cases, such as those of the master of a ship or
the acceptor of a bill of exchange for the honor of the drawer.^

Appeal allowed.^

1 Concurring opinions by A. L. Smith and Rigby, L. JJ., have been omitted. — Ed.

2 Compare Georgia Pacific Railroad v. Propst, 85 Aia. 203 (1887). — Ed.

SECT. 1.1 BROOKSHIKE V. BKOOKSHIRE. 953

CHAPTER IX.
TERMINATION OF AGENCY.

SECTION I.

Modes of Termination.
(A) Revocation.

ANON. V. HARRISON.

Nisi Prius. 1698.

[12 Mod. 346.]

A SERVANT had power to draw bills of exchange in his master's
name, and afterwards is turned out of the service.

Holt, C. J. If he draw a bill in so little time after that the world
cannot take notice of his being out of service, or if he were a long
time out of his service, but that kept so secret that the world cannot
take notice of it, the bill in those cases shall bind the master.*

BROOKSHIRE v. BROOKSHIRE.
Supreme Court of North Carolina. 1847.

[8 Iredell's Law, 74.]

This was an action of assumpsit brought in the Superior Court of
Randolph.

The following was the case : the plaintiff was emploj-ed by the de-
fendant and others, as an agent, to go to Alabama, and settle the estate
of their brother, and receive from the executor his share thereof and

1 Ace: Trueman v. Loder, 11 Ad. & E. 589 (1840) ; Tier v. Lampson, 35 Yt. 179
(1862) ; Fellows v. Hartford & New York Steamboat Co., 38 Coun. 197 (1871) ; Clatliu
V. Lanheim, 66 N. Y. 301 (1876).

Compare Watts v. Kavanagh, 35 Yt. 34, 38 (1861) ; Pole v. Leask, 33 L J. n. s. Ch
155, 162 (II. L. 1863).

And see Capen i'. Pacific Mutual Ins. Co., 1 Dutcher, 67 (1855). — Ed.

954 BROOKSHIRE V. BROOKSHIRE. [CHAl*. IX.

bring it to this State. Tlie appointment of tlie plaintiff was by deed.
He made one trip, and after returning home he made a second, when
he was shown b}' the executor a letter from the defendant, revoking
the power before given, so far as he was concerned. The action was
brought to recover the defendant's aliquot portion of the expenses of
both trips, and also the commissions of ten per cent on the distributive
share of tlie defendant. It was admitted b}' the defendant that he was
bound for one-sixth part of the expenses of tlie first trip, but insisted
he was bound for no part of the second ; as upon the return of the
plaintiff he had revoked the power of attorney by parol. There was
contradictory evidence of the parol revocation. On the part of the
plaintiff, it was contended that, the power under which he acted being
an instrument under seal, it could not be revoked, but by an instrument
of equal dignity, and that, therefore, whether the revocation was
attempted bj* parol after the termination of the first trip, or by the let-
ter upon liis return to Alabama, it was equally inoperative, and he was
entitled to recover the defendant's share of the expenses of both trips.

His Honor charged the jury that if the}- believed there was a parol
revocation of the power of attorne}' before the plaintiff started upon
the second trip to Alabama, the}' should allow damages to the amount
of one-sixth of the expenses of the first trip ; and if they should find
that there was no revocation before the plaintiff left on the second trip,
but that the power was revoked by letter after he reached Alabama, in
that case they should allow damages for the expenses of the first trip
and also for his expenses in going to Alabama the second time, but not
his expenses home.

The jury returned a verdict of $43.16, being the defendant's share of
the expenses of the first trip, and his share of his expenses out, the
second.^ . . .

The plaintiff then moved for a new trial for misdirection of the judge
in charging the jur}' that the power of attorney could be revoked by
parol or by letter. This motion was also overruled, and botli parties
appealed.

J. H. Haughton^ for the plaintiff.

Iredell^ for the defendant.

Nash, J. It is not denied b}' the plaintiff that, in this case, it was
within the power of the defendant to put an end to his agency, b}' re-
voking his authority. Indeed, this is a doctrine so consonant with
justice and common sense that it requires no reasoning to prove it.
But he contends that it is a maxim of the common law, that every
instrument must be revoked by one of equal dignity. It is true an
instrument under seal cannot be released or discharged b}' an instru-
ment not under seal or by parol ; but we do not consider the rule as
applicable to the revocation of powers of attorney, especially to such
an one as we are now considering. The authority of an agent is con-

^ From the statement and the opinion have been omitted passages dealing with
certain motions not bearing on the question as to Agency. — Ed.

SECT. I.] ROBERTSON V. CLOUD. 955

ferred at the mere will of bis priucipal and is to be executed for his
benefit ; the principal, therefore, has the right to put an end to the
agency whenever he pleases, and the agent has no right to insist upon
acting, when the confidence at first reposed in him is withdrawn. In
this case, it was not necessary to enable the plaintiff to execute his
agency, that his power should be under seal ; one by parol, or by writ-
ing of any kind, would have been sufficient ; it certainly cannot require
more form to revoke the power than to create it. Mr. Story, in his
treatise on Agency, page GOG, lays it down that the revocation of a
power may be, by a direct and formal declaration publicly made known,
or by an informal writing, or by parol ; or it may be implied from cir-
cumstances, and he nowhere intimates, nor do any of the authorities
we have looked into, that when the power is created by deed, it must
be revoked bj' deed. And, as was before remarked, the nature of the
connection between the principal and the agent seems to be at war with
such a principle. It is stated by Mr. Story, in the same page, that an
agency may be revoked by implication, and all the text-writers lay
down the same doctrine. Thus, if another agent is appointed to exe-
cute powers, previously intrusted to some other person, it is a revoca-
tion, in general, of the power of the latter. For this proposition, Mr.
Story cites Copeland v. The Mercantile Insurance Companj-, 6 Pick.
198. In that case, it was decided that a power, given to one Pedrick
to sell the interest of his principal in a vessel, was revoked by a sub-
sequent letter of instruction to him and the master to sell. As then,
an agent may be appointed by parol, and as the appointment of a sub-
sequent agent supersedes and revokes the powers previously granted
to another, it follows, that the power of the latter, though created by
deed, ma^- be revoked by the principal, b}' parol. But the case in
Pickering goes further. Tlie case does not state, in so many words,
that the power granted to Pedrick was under seal, but the facts set
forth in the case show that was the fact ; and, if so, is a direct author-
ity in this case. This is the onh- point raised, in the plaintiff's bill of
exceptions, as to the judge's charge. . . .

Per Curiam. Judgment affirmed on each appeal, and each appel-
lant must pay the costs of his appeal.

ROBERTSON v. CLOUD.
Supreme Court of Mississippi. 1872.

[47 Miss. 208.]

Error to the Circuit Court of Coahoma County, Shackleford, J.
Johnston & Johnston^ for plaintiff in error.
JSucJc i& Clrfr/c, for defendant in error.

956 ROBERTSON V. CLOUD. [CHAP, IX.

SiMRALL, J. Cloud, the defendant in error, was constituted an agent
by Robertson to sell a plantation in Coahoma County, on certain terms
as to price and payment. Cloud, by active exertions, through corre-
spondence and personal solicitation, found a purchaser who was willing
to buy the property on the terms he was authorized to accept. If he
should effect a sale, Robertson agreed to compensate him "•liberally."
The case in the Circuit Court was submitted to the judge on the law
and facts. Without a separate finding as to the facts, a judgment was
rendered in favor of Cloud for $350, which was $150 less than he
claimed. The testimony was embodied in a bill of exceptions to the
decision of the court denying a motion for a new trial.

The proposition made for Robertson in this court is, that compensa-
tion to Cloud was dependent upon a sale of the land, and inasmuch as
Robertson had declined to sell for the $10,000, therefore there has
been no breach of his contract with Cloud.

The principal has a right to control the action of his agent by in-
struction, or he maj-, at will, dissolve the relation altogether. But
it is claimed for Cloud, that whilst his authority to negotiate a sale for
$10,000 was operative. Carter, with whom he had been in treaty for
some time, acceded to the terms, and agreed to bu}'. And if Robert-
son, the principal, then interfered and declined to consummate the sale,
the fault was not with the agent. The rule is, that if complete per-
formance of a contract is prevented by one party thereto, the other
who had complied, or was able and willing to compl}-, shall be com-
pensated in damages to the extent of making him whole. The doctrine
on this subject is stated and examined in Friedlander v. Pugh, Slocumb,
& Co., 43 Miss. ; and Vicksburg & Meridian R. R. Co. v. Ragsdale
(MS. opinion).

Cloud, in his evidence, stated that Carter had agreed to buy, before
he was notified by Robertson not to sell for the $10,000. If such was
the fact, and the judge so accepted it as proved, and anything remained
to be done by Cloud, then the case would be governed in principle
by Friedlander ik Pugh, Slocumb, & Co., and Cloud should secure com-
pensation for partial performance, according to the terms of contract,
and such damages as would legitimate!}' result from the refusal of the
plaintiff to permit a full performance.

The evidence shows that labor, time, and money were expended by
Cloud about this business. In one view of the testimon}-, all was done
by liim that well could be done.

The extent of the authority given to Cloud, and the service to be
performed by him, was to negotiate a sale, — find a purchaser who would
comply with the terms of sale. That was done b}' the agent. But it
is said that Robertson wrote a letter at New Orleans to Cloud, two days
before Carter wrote accepting the offer of the land, revoking Cloud's
authority to sell for $10,000. There was testimony to the effect that
Carter's letter, agreeing to buy, was received by Cloud before the letter
from Robertson revoking his agency or withdrawing the land from sale

SECT. I.] BAXTER V. BURFIELD. 957

on the original terms. Robertson's letter was dated at New Orleans,
two days prior to Carter's letter at Owl Creek, Virginia. But it may be
true, as stated by Cloud in his testimony, that the former was received
first. The revocation of an agency to be operative must be made known
to the agent, and becomes effective from tliat time as to him. Storv on
Agency, § 470. The relation between Cloud and Robertson would be
dissolved on the receipt by the former of knowledge of the revocation,
and not from the date of writing and maihng the letter. There is no
parallel in principle and reason to that class of cases, where one man
makes an offer to buy or sell property to another through the mail. In
such eases, the writing and mailing promptly of a response accepting
the offer, concludes the contract. The aggregatio rnentium has occurred.
The parties have both assented to the bargain. The acceptance by the
one of the terms proposed by the other, transmitted by due course of
mail, closes the contract from the time of the acceptance. Adams v.
Linsell, 1 Barn. & Aid. 681 ; Mactier's Admr. v. Frith, 6 Wend. 103 ;
Tayloe v. Merchants' Fire Ins. Co., 9 How. (U. S.) 390 ; Curtis v. Blair,
26 Miss. 322.

Where a jury is dispensed with, and the whole case is submitted to
the court, this court should regard the conclusions of the judge on the
facts in evidence as it would the verdict of a jurv. There was testi-
mony to the point that Cloud had found a purchaser before he was
actually notified by his principal that the terms of sale had been
changed or his autliorit}' revoked.

We are of opinion that there is no error in the judgment.

Wherefore it is affirmed.

SECTION I. {continued),

(B) Death.

BAXTER, WIDOW and executrix, v. BURFIELD.
King's Bench. 1746.

[2 Str. 1266.]

In debt on bond, conditioned for Matthias Anderson's performance
of the covenants in an indenture of apprenticeship, whereby he was
bound to the plaintiflT's testator, who was a mariner : the defendant
pleaded that Anderson served faithfullv to the death of the testator ;
the plaintiff replied that since the death of the testator, Anderson had
absented from her service, to wliich there was a demurrer. And after
argument at bar, the Chief Justice delivered the resolution of the
court, viz. : That they were all of opinion, the defendant should have

958 HAEPER V. LITTLE. [CHAP. IX.

judgment, and the executrix could maintain no such action. The bind-
in<y was to the man, to learn his art, and serve him, without any
mention of executors. And as the words are confined, so is the
nature of the contract ; for it is fiduciaiy, and the lad is bound from a
personal knowledge of the integrity and ability of the master (Hob.
134, Vaugh. 182, 3 Keb. 519 audi Keb. 820, 1 Sid. 116), and they
denied the case in 1 Lev. 177. An award (Hil. 8 Ann. Home v.
Blake) that an apprentice should be assigned, was held void ; unless
there was a custom, or the concurrence of the apprentice. And they
held it was not material that, according to Cro. Eliz. 553, the assets
were liable on the master's covenant to maintain. Therefore judgment
pro de/.^

HARPER V. LITTLE.

Supreme Court of Maixe. 1822.

[2 Me., U.]

This was a writ of entry upon the demandants' own seisin, and a dis-
seisin b^' the tenant, and came before the court upon a case stated by
the parties as follows :

William Jackson, late of Balize, in the province of Yucatan, and
father of all the demandants except Harper, who sued in right of his
wife, being seised of the demanded premises, March 25, 1811, made a
general letter of attorney under seal to Harper, authorizing him,
among other things, to sell, transfer and convc}^ any real estate of his
constituent in Portland, and in his name to give deeds of the same.

Jackson afterwards died at Balize, August 18, 1813, during the war
between the United States and Great Britain.

Harper, not having heard of the decease of Jackson, the intercourse
with Balize being interrupted by the war, made a deed Januarv 8, 1814,
in his capacity of attorney to Jackson, purporting to be a regular exe-
cution of the power, and to convey the demanded premises to the
tenant, for the consideration of fifteen hundred dollars, which was paid
b}' the tenant, but never paid over b}' Harper to the executors of
Jackson's will.

Upon these facts the questions presented to the court were — 1st.
Whether the deed from Harper to the tenant was effectual to pass the
estate? 2d. If not, whether Harper was estopped b}- the deed from
claiming any part of the demanded premises? If these questions
should be resolved against the tenant, it was agreed that the cause
should stand for trial, the tenant claiming the land under a sale for
non-paj-ment of direct taxes assessed by the United States.

1 See Yerrington v. Greene, 7 R. I. 589 (1863), s. c. Wambangh's Cases fo«
Analysis, 202; Lacy v. Getman, 119 N. Y. 109 (1890). —Ed.

SECT. I.j HARPER '0. LITTLE. 959

Greenleaf, for the demandants.

Todd and Jjongfellovj ^ for the tenants.

Mellen, C. J. The principal question, if not the only one, in this
cause, is whether the deed made bj- Harper under the power of
attorney from Jackson, operated to pass the estate to the tenant
according to the intention of all concerned ; or, in other words,
whether the death of Jackson before the execution of the deed, though
unknown to Harper and Little at that time, was such a determination
of the power of attorney as to render the deed void and ineffectual as
a conveyance of the estate.

It is admitted tliat a revocation of a power not coupled with an
interest, will not defeat and render void those acts which are done in
pursuance of it, and prior to notice of such revocation being given to the
attorney'. Authorities are clear and direct on this point. The tenant
contends that the same principle is applicable and ought to prevail in
case of the determination of a power of attorne}- by the death of the con-
stituent; such death not being known at the time of the execution of
the conveyance made pursuant to such power, — though he frankly
admits that no case can be found which establishes that principle.
This very circumstance goes far toward showing the legal distinction
existing between the two cases. In the case of a revocation, the
power continues good against the constituent, till notice is given to the
attorney ; but tlie instant the constituent dies, the estate belongs to
his heirs, or devisees, or creditors ; and their rights cannot be divested
or impaired bj* any act performed b}' the attorney after the death has
happened ; the attorney' then being a stranger to them and having no
control over their property. In Watson v. King, 4 Campb. 272, it was
decided b^- Lord EUenborough that a power of attornej', though
coupled with an interest, is instantly revoked hy the death of the
grantor ; and an act afterwards bona fide done under it by the grantee
before notice of the death of the grantor is a nullity.

The counsel for the tenant has contended that the power and the
deed made in pursuance of it constitute but one act. Still, this one
act was not completed till months after Jackson's death, and is equally
ineffectual on this hypothesis. The deed is therefore ineffectual to
pass the estate.^ . . .

Upon the facts stated in the agreement of the parties, we are of
opinion that the action is in law maintainable, — but, as it is suggested
that the tenant has another defence on which he relies, grounded on
a sale of the demanded premises under the law of the United States
by one of their collectors of direct taxes, the cause must stand for
trial that the merits of that defence may be investigated.^

1 The omitterl passa^jes held that there was no estoppel. — Ed.

2 Arc. : Watson v. King, 4 Camp. 272 (181.5) ; Davis v. Windsor Savings Bank, 46
Vt. 728, 731 (1874) ; Weber v. Bridgmaii, 11.3 N. Y. (JOO, 605 (1889) ; Farmers' Loan
& Trust Co. V. Wilson, 139 N. Y. 284 (1893).

Contra: Cassiday v. McKenzie, 4 W. & S. 282 (1842) ; Ish v. Crane, 13 Ohio St.
^74(1862). — Ed.

960 GRIGGS V. SWIFT. [^HAP. IX.

JOHNSON V. JOHNSON'S ADMINISTRATORS.

Supreme Court of Ohio.^ 1834.

[ Wright, 594.]

Assumpsit for money had and received. The general issue joined.
It appeared in evidence that sundry promissory notes were placed in
the hands of the intestate to receive the amount and pay it out to
others, and that after his death the administrators had collected the
money, and paid it out accordingl}-.

Van Mutre^ for the plaintiff, claimed to recover the amount received,
notwithstanding it had been apphed according to the agreement, be-
cause there is no matter of set-off, and the defence is not admissible
under the general issue.

jPoic, contra.

Lane. J. The intestate received the notes to collect the amount
and pay over to others, but before this was done he died. The author-
ity to collect became inoperative by the death of the person receiving it.
The right to act under the power did not pass to his administrator. As
the case is without any evidence of interest in the intestate, and as the
defendants acting as his administrators have received the money of the
plaintiff, and have paid it out to others without authority, tlie payment
is a nullity, and does not discharge their liability. If b}' such payment
the defendants have acquired a right of the plaintiff, upon which they
might sue, that is a proper subject of set-off, not of defence under the
general issue. The law arising on the case as it stands is with the
plaintiff. Judgment for the plaintiff.

GRIGGS v. SWIFT, Surviving Partner. ,
Supreme Court of Georgia. 1889.

[82 Ga. 392.]

Nonsuit. Before Judge Smith, Muscogee Superior court.^ At the
conclusion of the testimony for the plaintiff, defendant moved for a non-
suit, which was granted; and plaintiff excepted.

T. TF. Grimes and Peabocly, Brannon S Hatcher^ for plaintiff.

McNeill ct* Levy, for defendant.

Bleckley, C. J. The hiring was b}' the partnership, for the term of
one year from September 1, 1886, at $50 per month, besides board.

^ On circuit, Lane and Wright, JJ., sitting. — Ed.
2 The reporter's statement has been omitted. — Ed.

SECT, I.] GRIGGS V. SWIFT. 961

One of the two partners of which the firm consisted died in November,
and the survivor discharged the plaintiff on the 1st of January. The
plaintiff could obtain no other employment until the following July ;
and, after the 3'ear expired for which he was hired by the partnership,
he brought this action, claiming the agreed compensation from the 1st
of January, the time of his discharge, up to tiie date in July when he
procured other employment, and his expenses for board during the
same period.

As there is no trace in the evidence that the partnership was, by the
terms of its creation, to subsist or continue after the death of one of its
members, such death wrought a dissolution, and forever terminated the
partnership. Code, §§ 1892, 1894. One of the parties, therefore, to
the contract of hiring became extinct by the act of God.

The Code declares (section 2871) that if performance is impossi-
ble and becomes so by the act of God, such impossibility is itself
equivalent to performance. There being no one, after the partnership
went out of existence, to receive the personal services which the plain-
tiff had contracted to render as inspector of farms and collector for the
partnership, the further execution of the contract was as much impossi-
ble as if the plaintiff himself had died before or after a dissolution of
the firm had taken place. The survivor transacted no new business on
the partnership account, but confined operations to closing up the firm
affairs. The classification of every contract must depend upon a
rational interpretation of the intention of the parties. Code, § 2721.
From the very nature of a contract for the rendition of personal ser-
vices to a partnership in its current business, where nothing is ex-
pressed to the contrary, both parties should be I'egarded as having by
implication intended a condition dependent, on the one hand, upon the
life of the employe, and, on the other, upon the life of the partnership,
provided the death in either case was not voluntar}'. To this effect is
the text of Wood, Mast. & Serv. § 163: "Where a servant is em-
ployed by a firm, a dissolution of the firm dissolves the contract, so
that the servant is absolved therefrom ; but if the dissolution results
from the act of the parties, the}- are liable to the servant for his loss
therefrom ; but if the dissolution results from the death of a member of
the firm, the dissolution resulting by operation of law, and not from the
act of the parties, no action for damages will lie. . . . So if a firm con-
sists of two or more persons, and one or more of them dies, but the
firm is not thereby dissolved, the contract still subsists, because one
or more of his partners is still in the firm, and this is so even though
other persons are taken into the firm. The test is whether the firm is
dissolved. So long as it exists, the contract is in force, but when it is
dissolved, the contract is dissolved with it, and the question as to
whether damages can be recovered therefor will depend upon the ques-
tion whetlier the dissolution resulted from the act of God, the operation
of law, or the act of the parties." Mr. Wood's reference is to two
Scotch cases, which we have not seen, but the rule he deduces from

962 INSURANCE COMPANY V. DAVIS. [CHAP. IX,

them is so reasonable that we feel warrauted in accepting it as law.
See, also, Tasker u. Shepherd, 6 Hurl. & N. 575.

As to death of a person not a partner, but a sole emplo3er, see
Yerrington v. Greene, 7 R. I. 589 ; Wood, Mast. & Serv. §§ 95, 158.

The case of Fereira v. Say res, 5 Watts *& S. 210, is apparently in
conflict with the text of Wood as above quoted, but we are satisfied to
abide by the rule laid down in Wood, though it be at the expense of
differing with the learned court of Pennsylvania, by whom the last-
named case was decided. The contract upon which the plaintiff's suit
was founded having become impossible of performance by reason of
death, he had no right to recover upon the same against the surviving
partner for services never actually rendered, and there was no error in
granting a nonsuit. Of course, the claim for board was on the same
footing as that for wages. Judgment ciffinned.^

SECTION I. (continued).
(C) Some other Modes of Termination.

INSURANCE COMPANY v. DAVIS.
Supreme Court of the United States. 1877.

[95 U. S. 425.]

Error to the Circuit Court of the United States for the Eastern
District of Virginia.

This was an action on a policy of life insurance issued b}' the New
York Life Insurance Company-, a New York corporation, before the
"War, upon the life of Sloraan Davis, a citizen and resident of the State
of Virginia. The polic}' contained the usual condition, to be void if
the renewal premiums were not promptly paid. The}' were regularl}''
paid until the beginning of the war. The last payment was made
Dec. 28, 1860. The company, previous to the war, had an agent, A. B.
Garland, residing in Petersburg, Va., where the assured also resided;
and premiums on this policy were paid to him in the usual way, he
giving receipts therefor, signed by the president and actuar}', as pro-
vided on the margin of the polic}', which were usually sent to the agent
about thirtj' da3'S in advance of the maturitj' of the premium. About a
year after the war broke out the agent entered the Confederate service
as a major, and remained in that service until the close of the war.

Offer of payment of the premium next due was made to the agent in
December, 1861, which he declined, alleging that he had received no

1 See Tasker v. Shepherd, 6 H. & N. 575 (1861).

Compare Bank of State of New York v. Vauderhorst, 32 N. Y. 553 (1865). — Ed.

SECT. I.] INSURANCE COMPANY V. DAVIS. 9G3

receipts from the company, and that the mone}', if he did receive it,
would be confiscated by the Confederate government. A similar oflTer
was made to him after the close of the war, which he also declined. He
testified that he refused to receive an}- premiums, had no communication
with the company during the war, and after it terminated did not resume
his agency.

Slonian Davis died in September, 1867.

The plaintiff below was assignee of the policy, and claimed to recover
the amount thereof, $10,000, upon the ground that he was guilty of no
laches, and that at the close of the war the policy revived.

It is unnecessary to state, in detail, the proceedings at the trial. The
plaintiff contended, and the judge instructed the jury, in substance,
that they might infer from the evidence that the place of payment in-
tended by the parties was at the residence of the plaintiff; and that, if
the company did not furnish receipts to its agent, so that the premiums
could be paid according to the terms of the policy, it was not the fault
of the plaintiff; and, if he was ready and offered to pay his premium to
the agent, there could be no forfeiture of the policy, if within reasonable
time after the war he endeavored to paj^ his premiums, and the company
refused to receive them. On the other hand, the defendant contended
that the war put an end to the agency of Garland, and the offer to paj'
the premium to him was of no validity, and the failure to pa}' rendered
the policy void. This view was rejected by the court, and a verdict
was rendered for the amount of the polic}', less the amount of certain
premium notes which had been given by the assured.

Judgment was rendered upon the verdict, and the company then
brought the case here.

Mr. Matt. H. Carpenter i, for the plaintiff in error.

Mr. Samuel B. Paul., contra.

Mr. Justice Bradley delivered the opinion of the court*

The legal effect of the policy itself was, that payment should be made
to the company at its domicile. The indorsement on the margin, which
is much relied on by the plaintiff's counsel, has no such effect as he
attributes to it. It is in these words : " All receipts for premiums paid
at agencies are to be signed b}' the president or actuary." This is sim-
ply a notice to the assured that, if he shall pay his annual premium to an
agent, or at an agency, he must not do so without getting a receipt
signed by the president or actuary of the compan}'. How this caution
can possibly be construed into an agreement on the part of the company
to make an}' particular agency the legal place of payment of premium
it is difficult to see. The circumstances show nothing but the common
case of the establishment of an agency for the mutual convenience of
the parties, and do not present the slightest ground for varying the
legal effect of their written contract. We think, therefore, that the
charge was erroneous on this point. Of course, we do not mean to be

1 After citing New York Life Jus. Co. v. Statham, 93 U. S. 24. — Ed.

964 INSURANCE COMPANY V. DAVIS. [CHAP. IX

understood as holding that, as long as an agenc}' is continued, a tender
to the agent would not be valid and binding on the eompan}-.

But we deem it proper to consider more particularly the question of
agency, and the alleged right of tendering premiums to an agent, during
the war.

That war suspends all commercial intercourse between the citizens of
two belligerent countries or States, except so far as may be allowed by
the sovereign authority, has been so often asserted and explained in
this court, within the last fifteen years, that any further discussion of
that proposition would be out of place. As a consequence of this funda-
mental proposition, it must follow that no active business can be main-
tained, either personally or by correspondence, or through an agent,
by the citizens of one belligerent with the citizens of the other. The
only exception to the rule recognized in the books, if we la}' out of view
contracts for ransom and other matters of absolute necessity, is that of
allowing the pa3-raent of debts to an agent of an alien enemy, where
such agent resides in the same State with the debtor. But this indul-
gence is subject to restrictions. In the first place, it must not be done
with the view of transmitting the funds to the principal dui'ing the
continuance of the war ; though, if so transmitted without the debtor's
connivance, he will not be responsible for it. Washington, J., in Conn
V. Penn, Pet. C. Ct. 496; Buchanan v. Curry, 19 Johns. (N. Y.) 141.
In the next place, in order to the subsistence of the agency during the
war, it must have the assent of the parties thereto, — the principal
and the agent. As war suspends all intercourse between them, pre-
venting anj' instructions, supervision, or knowledge of what takes place,
on the one part, and any report or application for advice on the other,
this relation necessaril}' ceases on the breaking out of hostilities, even
for the limited purpose before mentioned, unless continued b}' the
mutual assent of the parties. It is not compulsor}' ; nor can it be
made so, on either side, to subserve the ends of third parties. If the
agent continues to act as such, and his so acting is subsequently
ratified by the principal, or if the principal's assent is evinced by any
other circumstances, then third parties ma}' safel}' pa}' money, for the
use of the principal, into the agent's hands, but not otherwise. It is
not enough that there was an agency prior to the war. It would be
contrary to reason that a man, without his consent, should continue to
be bound by the acts of one whose relations to him have undergone such
a fundamental alteration as that produced by a war between the two
countries to which they respectively belong ; with whom he can have
no correspondence, to whom he can communicate no instructions, and
over whom he can exercise no control. It would be equally unreasonable
that the agent should be compelled to continue in the service of one
whom the law of nations declares to be his public enemy. If the agent
has property of the principal in his possession or control, good faith and
fidelity to his trust will require him to keep it safely during the war, and
to restore it faithfully at its close. This is all. The injustice of holding

SECT. I.] INSURANCE COMPANY V. DAVIS. 965

a principal bound by what an agent, acting without his assent, may do
in such cases, is forcibly illustrated by Mr. Justice Davis, in delivering
the opinion of this Court in Fretz v. Stover, 22 Wall. 198. In that case,
the agent had collected in Confederate funds the amount due on a bond.
Having asserted tliat the agent had no authority to do this, the learned
justice adds : " If it were otherwise, then, as long as the war lasted,
every Northern creditor of Southern men was at tlie mercy of the agent
he had employed before the war commenced. And his condition was a
hard one. Directed by his government to hold no intercourse with his
agent, and therefore unable to change instructions which were not
applicable to a state of war, yet he was bound b}- the acts of his agent
in the collection of his debts, the same as if peace prevailed. It would
be a reproach to the law, if creditors, without fault of their own, could
be subjected to such ruinous consequences." These observations have
a strong bearing upon the point now under consideration.

What particular circumstances will be sufficient to show the consent
of one person that another shall act as his agent to receive payment of
debts in an enemj-'s countrj- during war, ma}- sometimes be difficult to
determine. Emerigon says, that if a foreigner is forced to depart from
one country in consequence of a declaration of war with his own, he may
leave a power of attorney to a friend to collect his debts, and even to
sue for them. Traite des Assurances, vol. i. 567. But though a power
of attorney to collect debts, given under such circumstances, might be
valid, it is generall}' conceded that a power of attorney cannot be given,
during the existence of war, by a citizen of one of the belligerent coun-
tries resident therein, to a citizen or resident of the other ; for that would
be holding intercourse with the enemy, which is forbidden. Perhaps it
may be assumed that an agent ante helium^ who continues to act as such
during the war, in the receipt of mone}' or property on behalf of his
principal, where it is the manifest interest of the latter that he should
do so, as in the collection of rents and other debts, the assent of the
principal will be presumed, unless the contrar}- be shown ; but that,
where it is against his interest, or would impose upon him some new
obligation or burden, his assent will not be presumed, but must be
proved, either by his subsequent ratification, or in some other manner.

In some way. however, it must appear that the alleged agent assumed
to act as such, and that the alleged principal consented to his so acting.
It is believed that no well-considered case can be found anterior to these
life-insurance cases which have arisen out of the late civil war, in which
the existence or continuance of an agenc}', under the circumstances
above referred to, have been established contrary' to the assent of the
alleged parties to that relation. Conn v. Penn, supra, is the leading
authority on this subject in this countrv- The question in that case
•was whether the claimants of land in Pennsylvania, under contracts
of purchase from the proprietaries (^the Penns) before the revolutionarj'
war, were entitled to an abatement of interest during the war ; and
Justice Washington held that this depended on the question whether.

966 INSURANCE COMPANY V. DAVIS. [CHAP. IX.

during the war, the proprietaries, being alien enemies, " had in the
United States a known agent, or agents, authorized to receive the
purchase-monej' and quit-rents due to them from the complainants,"
the vendees. To enable the parties to adduce proof on this point,
the court allowed further evidence to be taken. The same thing was
held, at tlie same term, in the case of Dennison et al. v. Imbrie, 3 Wash.
396, where Justice Washington says : " We think that if the alien
enemj^ has an agent in the United States, or if the plaintiff himself was
in the United States, and either of these facts known to the debtor,
interest ought not to abate." It is obvious that, in these cases, the
judge assumed that the relation of agency, if it existed, did so with the
mutual consent of the parties thereto. And the same observation, it is
believed, may be made with regard to all other cases on the subject,
except some that have been very recently decided.

The same inference may be deduced from the cases decided in this
court when the subject of payment to agents in an enemy's country has
been discussed. Amongst others we ma3' refer to the following : Ward v.
Smith, 7 Wall. 447; Brown v. Hiatts, 15 id. 177; Montgomery v.
United States, id. 395 ; Fretz v. Stover, 22 id. 198.

In some recent cases in certain of the State courts of last resort,
for whose decisions we always entertain the highest respect, a different
view has been taken ; but we are unable to concur therein. In our
judgment, the unqualified assumption on which those decisions are
based — namely, " once an agent always an agent ; " or, in other words,
that an agency continues to exist notwithstanding the occurrence of
war between the countries in which the principal and the agent respec-
tively reside — is not correct, and that the continuance of the agency
is subject to the qualifications which we have stated above.

Now, in the present case, except at the very commencement of the
troubles, before the President's proclamation of non-intervention had
been issued, and when it was yet uncertain what the differences be-
tween the two sections would amount to, there is not the slightest
evidence that the company authorized Garland to act for it at all ; and
the latter expressly refused to do so when requested, both on the ground
of having received no receipts from the company (which were his only
authority for receiving payments), and of the liability of the funds to be
confiscated in his hands. The war suspended his agency for all active
purposes, ajid it could not be continued even for the collection of pre-
miums without the defendant's consent ; and this, so far as appears,
was never given, either expressl}' or by subsequent ratification. Under
these circumstances, it cannot be affirmed that the plaintiff could bind
the defendant by a tender of payment to the supposed agent. However
valid a payment may be, if made to an agent in time of war, where he
consents to act as such, and has the assent of his principal in so acting,
an offer of payment cannot have any force or effect if neither of these
circumstances exists.

Waiving, therefore, the consideration of any question that may be

bECT. I.] DREW V. NUNN. 967

made with regard to the validity of an insurance on the life of an alien
enem}', we thinlc that in the present case there was not the slighest foun-
dation for the court to charge, as it did in effect, that a tender of the
premium to Garland in Petersburg was a good tender, and binding on
the company.

We do not mean to say, that if the defendant had continued its
authorit}' to the agent to act in the receipt of premiums during the war,
and he had done so, a payment or tender to him in lawful mone}' of the
United States would not have been valid ; nor that a stipulation to
continue such autliority in case of war, made before its occurrence,
would not have been a valid stipulation ; nor that a policy of life
insurance on which no premiums were to be paid, though suspended
during the war, might not have revived after its close. We place our
decision simply on the ground that the agenc}' of Garland was termi-
nated by the breaking out of the war, and that, although by the consent
of the parties it might have been continued for the purpose of receiving
payments of premiums during the war, there is no proof that such assent
was given, either b}' the defendant or by Garland ; but that, on the
contrary', the proof is positive and uncontradicted, that Garland declined
to act as agent.

Judgment reversed, vith directions to award a venire facias de novo}

Mr. J ustice Clifford dissented.

DREW V. NUNN.

Court of Appeal. 1879.

[4 Q. B. D. 661.]

This was an action brought b3' a tradesman to recover the price of
goods supplied to the defendant's wife upon her order whilst the
defendant was insane. The following facts were proved at the trial
before Mellor, J.

The wife of the defendant began to deal with the plaintiff in 1872;
the defendant had been present when some of the goods were ordered
by his wife, and also had paid for some of them. The defendant be-
came ill in 1873, and in the month of November he instructed his agent
to pay all his income to his wife, and empowered her to draw cheques
upon his bankers. He became insane in December, and was confined
in an asylum until April, 1877. Whilst the defendant was in the asylum,
his wife oi-dered goods from the plaintiff, who supplied them to her
upon credit. The plaintiff was ignorant that the defendant was insane
and had been placed under restraint in an asylum, and he did not know

1 Ace. : Howell v. Gordon, 40 Ga. 302 (1869).
Compare Darling v. Lewis, 11 Heisk. 125 (1872). — Ed.

968 DREW V. NUNN. [CHAP. IX.

that the defendant's income was paid to his wife. In April, 1877, the
defendant recovered the use of his reason, and in tlie June following re-
voked any authority which he might have given to his wife either to act
as his agent or to pledge his credit.

Mellor, J., refused to ask the jury whether the income of the de-
fendant's wife during his confinement in the asylum was sufficient to
maintain her, and directed the jury that the plaintiff was entitled to
recover, if what the defendant's wife did was according to the course
pursued whilst the defendant lived with her. The jury found a verdict
for the plaintiff.

The defendant applied to the Queen's Bench Division for a new trial ;
but the application was refused. Upon appeal to this Court, an order
7iisi for a new trial was granted upon the ground of misdirection.

Willis, Q. C. (H. 0. B. Lane, with him), for the plaintiff, showed
cause.

Borne Payne, for the defendant.

Cur. adv. vult.

Brett, L. J.^ Upon this state of facts two questions arise. Does insan-
it}' put an end to the authorit}- of the agent? One would expect to find
that this question has been long decided on clear principles ; but on look-
ing into Storj' on Agency, Scotch authorities, Pothier, and other French
authorities, I find that no satisfactory conclusion has been arrived at. If
such insanity as existed here did not put an end to the agent's authority,
it would be clear that the plaintiff is entitled to succeed, but in my opinion
insanity of this kind does put an end to the agent's authority. It can-
not be disputed that some cases of change of status in the principal put
an end to the authority of the agent : thus, the bankruptcy and death
of the principal, the marriage of a female principal, all put an end to
the authority of the agent. It may be argued that this result follows
from the circumstance that a different principal is created. Upon
bankruptcy the trustee becomes the principal ; upon death the heir or
devisee as to realty, the executor or administrator as to personalty ;
and upon the marriage of a female principal her husband takes her
place. And it has been argued that by analog}' the lunatic continues
liable until a fresh principal, namely, his committee, is appointed. But
I cannot think that this is the true ground, for executors are, at least
in some instances, bound to carry out the contracts entered into b}'
their testators. I think that the satisfactor}- principle to be adopted is
that, where such a change occurs as to the principal that he can no
longer act for himself, the agent whom he has appointed can no longer
act for him. In the present case a great change had occurred in the
condition of the principal : he was so far afflicted with insanit}' as to
be disabled from acting for himself; therefore his wife, who was his
agent, could no longer act for him. Upon the ground which I have
pointed out, I think that her authority was terminated. It seems to me

1 After stating the caae. — Ed.

SECT. I.] DREW V. NUNN. 969

that an agent is liable to be sued by a third person, if he assumes to
act on his principal's behalf after he had knowledge of his principal's
incompetency to act. In a case of that kind he is acting wrongfully.
The defendant's wife must be taken to have been aware of her husband's
lunacy; and if she had assumed to act on his behalf with any one to
whom he himself had not held her out as his agent, she would have
been acting wrongfully, and, but for the circumstance that she is mar-
ried, would have been liable in an action to compensate the person with
whom she assumed to act on her husband's behalf. In my o) linion, if
a person who has not been held out as agent assumes to act en behalf
of a lunatic, the contract is void against the supposed principal, and
the pretended agent is liable to an action for misleading an innocent
person.

The second question then arises, what is the consequence where a
principal, who has held out another as his agent, subsequently becomes
insane, and a third person deals with the agent without notice that the
principal is a lunatic? Authority may be given to an agent in two ways.
First, it may be given by some instrument, which of itself asserts that
the authority is thereby created, such as a power of attorney ; it is of
itself an assertion by the principal that the agent may act for him.
Secondly, an authorit}' may also be created from the principal holding
out the agent as entitled to act generally for him. The agency in the
present case was created in the manner last-mentioned. As between
the defendant and his wife, the agency expired upon his becoming to
her knowledge insane ; but it seems to me that the person dealing with
the agent without knowledge of the principal's insanity has a right to
enter into a contract with him, and the principal, although a lunatic, is
bound so that he cannot repudiate the contract assumed to be made
upon his behalf It is difficult to assign the ground upon which this
doctrine, which however, seems to me to be the true principle, exists.
It is said that the right to hold the insane principal liable depends upon
contract. I have a difficulty in assenting to this. It has been said
also that the right depends upon estoppel. I cannot see that an estop-
pel is created. But it has been said also that the right depends upon
representations made by the principal and entitling third persons to act
upon them, until they hear that those representations are withdrawn.
The authorities collected in Story on Agenc}', ch. xviii. § 481, p. 610
(7th ed.), seem to base the right upon the ground of public policy : it
is there said in effect that the existence of the right goes in aid of
public business. It is however a better way of stating the rule to say
iiijat the holding out of another person as agent is a representation
upon which, at the time when it was made, third parties had a right to
act, and if no insanity had supervened would still have had a right
to act. In this case the wife was held out as agent, and the plaintiff
acted upon the defendant's representation as to her authority without
notice that it had been withdrawn. The defendant cannot escape from
the consequences of the representation which he has made ; he cannot

970 DREW V. NUNN. [CHAP. IX.

withdraw the agent's authority as to third persons without giving them
notice of the withdrawal. The principal is bound, although he retracts
the agent's authority, if he has not given notice and the latter wrong-
fuU}' enters into a contract upon his behalf. The defendant became
insane and was unable to withdraw the authority which he had con-
ferred upon his wife ; he maj' be an innocent sufferer by her conduct,
but the plaintiff, who dealt with her bond fide., is also innocent, and
where one of two persons both innocent must suffer by the wrong-
ful act of a third person, that person making the representation which,
as between the two, was the original cause of the mischief, must be the
sufferer and must bear the loss. Here it does not lie in the defendant's
mouth to sa}' that the plaintiff shall be the sufferer.

A difficult}' may arise in the application of a general principle such
as this is. Suppose that a person makes a representation which after
his death is acted upon b}' another in ignorance that his death has
happened : in my view the estate of the deceased will be bound to
make good any loss which may have occurred through acting upon
that representation. It is, however, unnecessary to decide this point
to-day.

Upon the grounds above stated I am of opinion that, although the
authority of the defendant's wife was put an end to b}' his insanitj', and
although she had no authority to deal with the plaintiff, nevertheless
the latter is entitled to recover, because the defendant whilst he was
sane made representations to the plaintiff, upon which he was entitled
to act until he had notice of the defendant's insanity, and he had no
notice of the insanity until after he had supplied the goods for the price
of which he now sues. The direction of Mellor, J., was right.

Bramwell, L. J. I agree with the judgment just delivered by Brett,
L. J. It must be taken that the defendant told the plaintiff that his
wife had authority to bind him ; when that authorit}- had been given, it
continued to exist, so far as the plaintiff was concerned, until it was
revoked and until he received notice of that revocation. It ma}' be
urged that this doctrine does not extend to insanit}', which is not an
intentional revocation ; but I think that insanity forms no exception to
the general law as to principal and agent. It may be hard upon an
insane principal, if his agent abuses his authority ; but, on the other
hand, it must be recollected that insanity is not a privilege, it is a mis-
fortune, which must not be allowed to injure innocent persons : it would
be productive of mischievous consequences, if insanity annulled every
representation made by the person afflicted with it without an}' notice
being given of his malady. If the argument for the defendant were
correct, every act done by him or on his behalf after he became insane
must be treated as a nullity. The limits of the doctrine as to the
liability of an insane person may be uncertain, and it may not be pos-
sible to lay down any broad rule ; but I think that the facts before us
resemble the case of a guarantee. Suppose that a promise is made that,
if the promisee will supply goods to a person named, the promisor will

SECT. I.] DKEW V. NUNN. 971

see that they are paid for, and suppose that the promisor intends to
put an end to his liabilit}-, but that before he can give notice to the
promisee, the latter supplies goods to the person named ; surely the
promisor is liable for tlie price ; for tlie transaction between the prom-
isor and promisee was equivalent to an agreement or license which was
to continue to exist, until it should be revoked by the promisor, and
until notice of that revocation should be received b}- the promisee.

It has been assumed by Brett, L. J., that the insanity of the defend-
ant was such as to amount to a revocation of his wife's autliorit3'. I
doubt whether partial mental derangement would have that effect.
I think that in order to annul the authoritj' of an agent, insanity' must
amount to dementia. If a man becomes so far insane as to have no
mind, perhaps he ought to be deemed dead for the purpose of contract-
ing. I think that the direction of Mellor, J. , was right.

Brett, L. J. I am requested by Cottox, L. J., to state that he agrees
with the conclusion at which we have arrived ; but that he does not
wish to decide whether the authority of the defendant's wife was termi-
nated, or whether the liability of a contractor lasts until a committee
has been appointed. He bases his decision simph' upon the ground
that the defendant, hy holding out his wife as agent, entered into a
contract with the plaintiff that she had anthoritj' to act upon his behalf,
and that until the plaintiff had notice that this authorit}- was revoked
he was entitled to act upon the defendant's representations.

I wish to add that if there had been anv real question as to the extent
of the defendant's insanity, it ought to have been left to the jury ; and
that as no question was asked of the jur}, I must assume that the
defendant was insane to the extent which I have mentioned. I ma}'
remark that from the mere fact of mental derangement it ought not to
be assumed that a person is incompetent to contract ; mere weakness of
mind or partial derangement is insufficient to exempt a person from
responsibilit}- upon the engagements into which he has entered.

Appeal dismissed.^

1 See Da^-is v. Lane, 10 N. H. 156 (1839); Motley r. Head, 43 Vt. 633 (1871);
Matthiessen & Weichers Refining Co. v. McMahon, 38 N. J. L. 536, 546 (1876). — Ed.

972 AHEEN V. BAKER. [CHAP. IX.

A HERN V. BAKER.

Supreme Court of Minnesota. 1885.

[34 Miun. 98.]

Appeal by plaintiff from an order of the District Court for Ramsey
Count}', Simons, J., presiding, overruling a demurrer to the answer.

Linden d; Williams, for appellant.

Bej'ryhill & Davison, for respondent.

Vanderburgh, J. The defendant, on the ninth day of September,
1884, specially authorized one Wheeler, as his agent, to sell the real
property' in controversy, and to execute a contract for the sale of the
same. He in like manner on the same day empowered one Fair-
child to sell the same land, the authority of the agent in each in-
stance being limited to the particular transaction named. On the
same day Wheeler etfected a sale of the land, which was consum-
mated by a conve\'ance. Subsequentlj', on the tenth day of Sep-
tember, Fairchild, as agent for defendant, and having no notice of
the previous sale made b}^ Wheeler, also contracted to sell the same
land to this plaintiff, who, upon defendant's refusal to perform on his
part, brings this action for damages for breach of the contract.

Tins is a case of special agency, and there is nothing in the case
going to show that the defendant would be estopped from setting up
a revocation of the agency- prior to the sale b}' Fairchild. A revoca-
tion ma}' be shown b}' the death of the principal, the destruction of
the subject-matter, or the determination of his estate by a sale, as
well as b}' express notice. The defendant had a right to emplo}' sev-
eral agents, and the act of one in making a sale would preclude the
others without any notice, unless the nature of his contract with them
required it. In dealing with the agent the plaintiff took the risk of the
revocation of his agency. 1 Pars. Cont. 71.*

Order affirmed^ and case remanded}

1 See Dickinson v. Dodds, 2 Ch. D. 463 (C. A. 1876).
Compare Claflin v. Lenheim, 66 N. Y. 301 (1876). —£d.

SECT. II.] WALSH V. WHITCOMB. 973

SECTION II.

Irrevocahility.

WALSH V. WHITCOMB.
Nisi Pkius. 1797.

[2 Esp. 565.]

This was an action of assumpsit for work and labor, goods sold
and delivered, with the conimou counts.

Plea of non assumpsit.

The action was brought to recover a sura of money for work done by
the plaintiff, who was a tailor.

The defence was that Walsh, the plaintiff, in the month of October,
1794, having become insolvent, had executed a power of attornej' to
one Barker, together with a general assignment bj" deed authorizing
him to receive the several debts due to him for the benefit of his
creditors, and to give proper receipts and discharges for the same ;
and that he had also given Barker a power to appoint a substitute or
other person to act in his room for the same purposes.

In October, 1795, Barker, in pursuance of the power of substitution
so given, executed an authority to one Charles Hindlej'.

Hindley applied to the defendant Whitcomb for the debt due to
Walsh ; he paid it and took his receipt.

Some time after Whitcomb was again applied to for payment of the
same demand, by another person claiming under a power of attorney
from Walsh, the plaintiff. The defendant, Whitcomb, produced the
receipt he had received from Hindley, which the person who applied
refused to allow ; and the present action was brought.

For the plaintiff it was contended, that a power of attorney is from
its nature revocable, and that the execution of the subsequent power of
attorne}' was a revocation of the former.

Per Lord Kenyon. There is a difference in cases of powers of at-
torney ; in general they are revocable from their nature, but there are
these exceptions : " where a power of attorney is part of a security- for
money, there it is not revocable ; where a power of attorney was made
to levy fine, as part of a security, it was held not to be revocable ; the
principle is applicable to every case where a power of attorney is neces-
sary to effectuate any security ; such is not revocable." In the present
ease Walsh assigned all his effects, etc. , over to Barker, to whom
amongst others he was indexed : the power of attorney was made to
?>arker to call in the debts for the benefit of the creditors ; it was i)art

974 HUNT V. EOUSMANIEK. [CHAP. IX.

of the security for the pa3'ment of the creditors. It was therefore by
law not revocable, and the payment by the defendant is good.^

TJiejuru found a verdict for the defendant.

Ersldne and Lmces, for the plaintiff.

Garrow^ for the defendant.

HUNT V. ROUSMANIER'S ADMINISTRATORS.

Supreme Court of the United States. 1823.

[8 Wheat. 174.]

Appeal from the Circuit Court of Rhode Island.

The original bill, filed b}' the appellant, Hunt, stated, that Lewis
Rousmanier, the intestate of the defendants, applied to the plaintiff, in
January, 1820, for the loan of $1450, offering to give, in addition to
his notes, a bill of sale, or a mortgage of his interest in the brig
" Nereus,'"' then at sea, as collateral security for the repayment of the
money. The sum requested was lent; and, on the 11th of January,
the said Rousmanier executed two notes for the amount ; and, on the
15th of the same month he executed a power of attorne}-, authorizing
the plaintiff to make and execute a bill of sale of three-fourths of the
said vessel to himself, or to an}' other person ; and, in the event of the
said vessel or her freight being lost, to collect the mone}' which should
become due on a policy b}' which the vessel and freight were insured.
This instrument contained, also, a proviso, reciting, that the power
was given for collateral security for the payment of the notes already
mentioned, and was to be void on their payment ; on the failure to do
which, the plaintiff was to pay the amount thereof, and all expenses,
out of the proceeds of the said property, and to return the residue to
the said Rousmanier.

The bill farther stated, that on the 21st of March, 1820, the plaintiff
lent to the said Rousmanier the additional sum of $700, taking his
note for payment, and a similar power to dispose of his interest in the
schooner " Industry," then also at sea. The bill then charged that on
the 6th of May, 1820, the said Rousmanier died insolvent, having paid
onl}- $200 on the said notes. The plaintiff gave notice of his claim ;
and, on the return of the "Nereus" and "Industry," took possession
of them, and offered the intestate's interest in them for sale. The
defendants forbade the sale ; and this bill was brought to compel them
to join in it.

The defendants demurred generalh', and the court sustained the
demurrer ; but gave the plaintiff leave to amend his bill.

1 Ace. : Gaussen v. Morton, 10 B. & C. 731 (1830) ; Wheeler v. Slocomb, 16 PicL
52 (1834) ; American Loan and Trust Co. v. Billings, 58 Minn. 187 (1894J.
See Smart v Sandars, 5 C. B. 895, 916-918 (1848). — Ed.

3KCT. II.] HUNT V. ROUSMANIER. 975

The amended bill stated, that it was express!}' agreed between the
parties that Rousmanier was to give specific securit}- on the " Nereus "
and " Industr}-;" and that he offered to execute a mortgage on them ;
that counsel was consulted on the subject, who advised that a power
of attorney, such as was actually' executed, should be taken in prefer-
ence to a mortgage, because it was equally valid and effectual as a
security, and would prevent the necessity of changing the papers of
the vessels, or of taking possession of them on their arrival in port.
The powers were accordingly executed, with the full belief that they
would, and with the intention that they should, give the plaintiff as
full and perfect security as would be given by a deed of mortgage.
The bill prayed that the defendant might be decreed to join in a sale of
the interest of their intestate in the " Nereus" and " Industry," or to
sell the same themselves, and pay out of the proceeds the debt due to
the plaintiff. To this amended bill, also, the defendants demurred,
and on argument the demurrer was sustained and the bill dismissed.
From this decree the plaintiff appealed to this court.

J//-. W/teaton, for the appellant.

J/r. Hunter^ for the respondents.

Marshall, C. J., delivered the opinion of the court.

The counsel for the appellant objects to the decree of the circuit
court on two grounds. He contends :

1. That this power of attorney does, b}- its own operation, entitle
the plaintiff, for the satisfaction of his debt, to the interest of Rous-
manier in the " Nereus " and the " Industrv."

2. Or, if this be not so, that a Court of Chancerv will, the convey-
ance being defective, lend its aid to earr}- the contract into execution,
according to the intention of the parties.

We will consider, 1 : The effect of the power of attorne}-.

This instrument contains no words of conveyance or of assignment,
but is a simple power to .sell and conve}'. As the power of one man
to act for another depends on the will and license of that other, the
power ceases when the will, or this permission, is withdrawn. The
general rule, therefore, is, that a letter of attorney m.iy, at any time,
be revoked by the party who makes it ; and is revoked bj* his death.
But this general rule, which results from the nature of the act, has
sustained some modification. Where a letter of attorney forms a part
of a contract, and is a securitv for money, or for the performance of
an}- act which is deemed valuable, it is generally made irrcA'Ocable in
terms, or if not so, is deemed irrevocable in law. 2 P^sp. N. P. Rep.
565. Although a letter of attorney depends, from its nature, on the
will of the person making it, and may, in general, be recalled at his
will ; 3-et, if he binds himself for a consideration, in terms, or bj- the
nature of his contract, not to change his will, the law will not permit
him to change it. Rousmanier, therefore, could not, during his life,
b}' an}' act of his own, have revoked this letter of attorney. But does
it retain its eflficacv after his death? We think it does not. We think

976 HUNT V. ROUSMANIER. [cHAP. IX.

it well settled that a power of attorney, though irrevocable during the
life of the part}', becomes extinct by his death.

This principle is asserted in Littleton (Sect. 66), by Lord Coke, in
his commentary on that section (52 b.), and in Willes' Reports (105,
note, and 565). The legal reason of the rule is a plain one. It seems
founded on the presumption that the substitute acts by virtue of the
authority of his principal, existing at the time the act is performed ;
and on the manner in which he must execute his autliority, as stated
in Coombes' case, 9 Co. 766. In that case it was resolved, that
" when any one has authority as attorney to do any act, he ought to do
it in his name who gave the authority'. " The reason of this resolution
is obvious. The title can regularly pass out of the person in whom it
is vested only b\" a conveyance in his own name ; and this cannot be
executed b}- another for him, when it could not in law be executed by
himself. A conveyance in the name of a person who was dead at the
time would be manifest absurdit}-.

This general doctrine, that a power must be executed in the name
of a person who gives it, a doctrine founded on the nature of the
transaction, is most usually engrafted in the power itself. Its usual
language is, that the substitute shall do that which he is empowered to
do in the name of his principal. He is put in the place and stead of
his principal, and is to act in his name. This accustomed form is
observed in the instrument under consideration. Hunt is constituted
the attorne}', and is authorized to make and execute a regular bill of
sale in the name of Rousmanier. Now, as an authority must be pur-
sued, in order to make the act of the substitute the act of the principal,
it is necessary that this bill of sale should be in the name of Rous-
manier ; and it would be a gross absurdit}', that a deed should purport
to be executed b\' him, even b}^ attorne}', after his death ; for the
attorney is in the place of the principal, capable of doing that alone
which the principal might do.

This general rule, that a power ceases with the life of the person
giving it, admits of one exception. If a power be coupled with an
"interest," it survives the pei'son giving it, and ma}' be executed after
his death.

As this proposition is laid down too positively in the books to be
controverted, it becomes necessary' to inquire what is meant by the
expression, " a power coupled with an interest"? Is it an interest in
the subject on which the power is to be exercised, or is it an interest in
that which is produced b}' the exercise of the power? We hold it to
be clear that the interest which can protect a power after the death of
a person who creates it must be an interest in the thing itself. In
other words, the power must be engrafted on an estate in the thing.

The words themselves would seem to import this meaning. " A
power coupled with an interest " is a power which accompanies, or is con-
nected with, an interest. The power and the interest are united in the
same person. But if we are to understand bj' the word " interest," an
interest in that which is to be produced b}' the exercise of the power.

6EG1-. 11. J HUNT V. ROUSMANIER. 977

then the3' are never united. The power, to produce the interest, must
be exercised, and by its exercise, is extinguished. The power ceases
when the interest commences, and, therefore, cannot, in accurate law
language, be said to be " coupled " with it.

But the substantial basis of the opinion of the court on this point
is found in the legal reason of the principle. The interest or title in the
thing, being vested in the person who gives the power, remains in him,
unless it be conveyed with the power, and can pass out of him onl}- by
a regular act in his own name. The act of the substitute, therefore,
which, in such a case, is the act of the principal, to be legally effectual,
must be in his name, must be such an act as the principal himself
would be capable of performing, and which would be valid if performed
by him. Such a power necessarily ceases with the life of the person
making it. But if the interest, or estate, passes with the power, and
vests in the person by whom the power is to be exercised, such person
acts in bis own name. The estate, being in him, passes from him
by a conveyance in liis own name. He is no longer a substitute,
acting in the place and name of another, but is a principal acting in
his own name, in pursuance of powers which limit bis estate. The
legal reason which limits a power to the life of the person giving it
exists no longer, and the rule ceases with the reason on which it is
founded. The intention of the instrument ma\- be effected without
violating any legal principle.

This idea may be, in some degree, illustrated by examples of cases
in which the law is clear, and which are incompatible with any other
exposition of the term '* power coupled with an interest." If the word
"interest" thus used, indicated a title to the proceeds of the sale, and
not a title to the thing to be sold, then a power to A to sell for his own
benefit would be a power coupled with an interest ; but a power to A
to sell for the benefit of B, would be a naked power, which could be
executed only in the life of the person who gave it. Yet, for this dis-
tinction, no legal reason can be assigned. Nor is there any reason for
it in justice ; for a power to A to sell for the benefit of B may be as
much a part of the contract on which B advances his money, as if the
power had been made to himself. If this were the true exposition of
the terra, then a power to A to sell for the use of B, inserted in a,
conveyance to A of the thing to be sold, would not be a power
coupled with an interest, and, consequently, could not be exercised
after the death of the person making it ; while a power to A to sell
and pay a debt to himself, though not accompanied with any conve}'-
ance which might vest the title in him, would enable him to make the
conveyance, and to pass a title not in him, even after the vivifying
principle of the power had become extinct. But every day's experi-
ence teaches us that the law is not as the first case put would suppose.
We know that a power to A to sell for the benefit of B, engrafted on
an estate conveyed to A, may be exercised at any time, and is not
affected by the death of the person who created it. It is, then, a

9.78 HUNT V. KOUSMANIER. [CHAP. IX.

power coupled with an interest, although the person to whom it is
given has no interest in its exercise. His power is coupled with an
interest in the thing which enables him to execute it in his own
name, and is, therefore, not dependent on the life of the person who
created it.

The general rule, that a power of attorne}', though irrevocable by
the party during his life, is extinguished by his death, is not affected
b}' the circumstance, that testamentary powers are executed after the
death of the testator. The law, in allowing a testamentary disposi-
tion of propert}', not only permits a will to be considered as a convej'-
ance, but gives it an operation which is not allowed to deeds which
have their effect during the life of the person who executes them. An
estate given by will maj- take effect at a future time or on a future
contingency, and, in the mean time, descends to the heir. The power
is, necessarily, to be executed after the death of the person who makes
it, and cannot exist during his life. It is the intention that it shall be
executed after his death. The conveyance made by the person to
whom it is given takes effect by virtue of the will, and the purchaser
holds his title under it. Every case of a power given in a will is con-
sidered in a court of chancery as a trust for the benefit of the person
for whose use the power is made, and as a devise or bequest to that
person.

It is, then, deemed perfectly clear, that the power given in this case,
is a naked power, not coupled with an interest, which, though irrevoca-
ble by Rousmanier himself, expired on his death.

It remains to inquire whether the appellant is entitled to the aid of
this court, to give effect to the intention of the parties, to subject the
interest of Rousmanier in the " Nereus " and "Industry" to the pay-
ment of the money advanced by the plaintiff on the credit of those
vessels, the instrument taken for that purpose having totall}' failed to
effect its object.

This is the point on which the plaintiff most relies, and is that on
which the court has felt most doubt. That the parties intended, the
one to give, and the other to receive, an effective security on the two
vessels mentioned in the bill, is admitted ; and the question is, whether
the law of this court will enal)le it to carry this intent into execution,
when the instrument relied on by both parties has failed to accomplish
its object.* . . .

In this case, the fact of mistake is placed beyond any controversy.
It is averred in the bill, and admitted by the demurrer, that " the
powers of attorney were given by the said Rousmanier, and received
by the said Hunt, under the belief that they were, and with the inten-
tion that they should create, a specific lien and security on the said
vessels."

We find no case which we think precisely in point ; and are unwill-

^ Passages discussing this question have been omitted. — En.

SECT. II.j KNAPP V. ALVORD. 979

ing, where the effect of the instrument is acknowledged to have been
entirely misunderstood by both parties, to say that a court of equity is
incapable of affording relief.

The decree of the Circuit Court is reversed ; but as this is a case in
which creditors are concerned, the court, instead of giving a final
decree on the demurrer in favor of the plaintiff, directs the cause to be
remanded, that the Circuit Court may permit the defendants to with-
draw their demurrer, and to answer the bill.^

KNAPP V. ALVORD.
Court of Chancery of New York. 1843.

[10 Paige, 205.]

This case came before the court upon exceptions to the report of
a master, to whom it was referred to take and state the account of the
defendant, as the administratrix of W. Alvord, deceased, and to re-
port the amount due to the complainant and to the other creditors of
the decedent. And the onl}' question was as to the right of J. Meads
to retain, out of the estate of the decedent, the amount of two notes
upon which he was endorser ; the estate of the decedent being insuffi-
cient to pa}' all his debts. The master decided in favor of the right of
Meads to retain, and allowed to the administratrix the amount retained
by Meads out of the proceeds of the property of the decedent, and
which had been so retained with her assent. Rathbone and Smith,
two of the creditors who had come in and proved their debts under the
decree. Excepted to that part of the report. The facts on which the
question arose were as follows :

The decedent, W. Alvord, for some time previous to his death, car-
ried on the business of a cabinet maker in the city of Alban}'. In the
fall of 1837, Alvord being in bad health, Meads, who had formerly been
his copartner, consented to assist him gratuitously in the care and man-
agement of his business. In the latter part of November in that year,
the decedent having determined to spend the winter at the south on

1 The plaintiff ultimately failed. See Hunt r. Rousmanier, 1 Pet. 1 (1828).

" If a man maketh a deed of feoffment to another, and a letter of attorney to one
to deliver to him seisin by force of the same deed ; yet if livery of seisin be not
executed in the life of him which made the deed, this availeth nothing, for that
the other had nought to have the tenements according to the purport of the said
deed, before livery of seisin made ; and if there be no livery of seisin, then after the
decease of him who niiide tlie deed, the right of these tenements is forthwith in his
heire, or in some other." Littleton's Tenures, sect. 66.

In Watson v. King, 4 Camp. 272 (181.5), Lord Ellenrorough, charging the jury,
said: "A power coupled with an interest cannot be revoked by the person granting
it ; but it is necessarily revoked by his death. How can a valid act be done in the
name of a dead man ? " — Ed.

980 KNAl'P V. ALVOKD. [CHAP. IX

account of his health, applied to Meads to take the general charge of
his business during his absence ; to which Meads consented. At that
time a note of $180U, drawn by Alvord and endorsed b}- Whitney and
Van Vechten, as his sureties, was held b}- the Mechanics & Farmers
Bank, and was payable on the 9th of December. Alvord also owed
another note to II. Rector, for $428.34, endorsed by Meads, and which
was payable on the 12th of December, 1837. To provide for the pa^--
ment of these notes, or others wliich might be given in renewal thereof,
and to enable Meads the better to manage his business during his antic-
ipated absence, Alvord executed an instrument, bearing date the 22d
of November, 1837, constituting Meads his agent and attorney to carry
on, conduct, and manage his business as a cabinet maker in his absence ;
to purchase and procure' stock and materials; to hire, pay, and dis-
charge workmen ; to collect and receive moneys, etc., and to appl}' the
same in his said business, or to the support of the decedent's family, or
to the payment or securit\' of his debts and liabilities. That instru-
ment or power also contained the following clause: "And I hereby
expressly authorize and empower the said Meads to sell, assign, trans-
fer and dispose of, at an}^ time or in an}' manner which he may deem
necessary or advisable, all or an}' furniture, stock, property, notes,
claims, or other effects whatsoever, which now are or may at any time
be in his hands, belonging to me, and to apply the same and the pro-
ceeds thereof to the security or payment, in whole or in part, of a
certain note for about the sum of $1800 drawn by me and endorsed b}'
S. Whitney and J. T. B. Van Vechten, and discounted at the Mechan-
ics and Farmers Bank ; or any note or notes which may be given in
lieu or renewal thereof or of any part thereof; and to the payment or
securit}' of an}' note or notes drawn by me, and endorsed or which may
have been endorsed by the said Meads, or for which he may fcecome
responsible." The day after the execution of this instrument the de-
cedent attended at his shop and delivered over his account books, etc. to
Meads, and put him into actual possession and charge of the shop and
business and the property therein ; and Meads then opened or caused
to be opened a new cash book in the presence of Alvord. On the same
day Alvord gave to Whitney, one of the endorsers upon the $1800
note, a mortgage upon the furniture, lumber, and stock in trade of the
said cabinet maker's business, to secure him as the endorser of that
note or of any other note which might be given in lieu or renewal of
it ; which mortgage was filed in the clerk's office on the 26th of Decem-
ber thereafter, Alvord left for the south a day or two after the date of
these instruments, having left his signatures in blank with Meads to
enable him to renew the notes if necessary ; and he died at Savannah,
in Georgia, on the 18th of December, 1837.

When the $1800 note became due, on the 9th of December, Meads
wrote a new note for the same amount over one of the blank signatures,
payable in ninety days, which was also endorsed by Whitney and Van
Vechten. and given to the bank in renewal of the note. And as the

cECT. 11.] KNAPP V. ALVORD. 981

bank required further security, Meads put his name upon the note as
a subsequent endorser. On the 12th of December, when the note of
Rector became due, Meads filled up another note over one of Alvord's
blank signatures, and endorsed the same himself and gave it in renewal
of the old note ; which note was also made payable in ninety dajs.
Both of these renewal notes were dul}' protested for non-payment, and
were afterwards taken up b}- Meads as endorser. After the death of
Alvord, Meads claimed a lien upon the property and assets of the cabi-
net making business, in his hands, for all responsibilities which he had
incurred, as endorser upon these notes or otherwise ; and he continued
in the possession and control of the property, with the assent of the
administratrix, until April, 1838, when the property was sold at auc-
tion, under his direction, and with her assent. The amount of the notes
was retained by iiim out of the proceeds of the sale, and the residue of
the proceeds was accounted for to the administratrix.

Ira Harris, for the creditors Kathbone and Smith.

S. Stevens and 0. Mrads, for the administratrix.

The Chancellor. The personal mortgage to Whitney not being
filed till after the death of Alvord, and not being accompanied by an
immediate deliver^' and continued possession of the propert3", it maj' be
doubted whether it was sufficient to give Whitney, who was liable to
Meads as the last endorser of the note of $1800, a preference in pay-
ment over the other creditors of Alvord. This case, however, does
not turn upon that question ; as I am satisfied that an equitable lien
upon the property was created b^' the special clause in the power, in
reference to the $1800 note and to notes drawn b}' Alvord and en-
dorsed b}' Meads. And as that instrument was accompanied by an
actual deliver}- and continued change of possession of the property,
until it was converted into mone^' and applied in payment of the two
several notes, it was not necessar\' that the instrument which created
that lien should be recorded, under the act of 1833, It is the dut}' of
the court to give such a construction to the language of a written in-
strument as to cany into effect the intention of the parties, so far as
that intention can be collected from the whole instrument and the situa-
tion of the parties at the time the writing was executed. And I think
no one who reads this special clause, in connection with the evidence,
or rather the admissions, of extrinsic facts which are proper to be taken
into consideration, can believe that Alvord did not intend to give to
the endorsers of the $1800 note, and to Meads, as the endorser of the
Rector note and other notes which he might thereafter endorse, a bene-
ficial interest in the execution of this power, for their securit}- and
indemnity. It clearly shows that Alvord anticipated that it would
probably be necessary for Meads to incur further responsibilit}' as his
endorser, in the discharge of the duties of his agency, and that some-
thing more than an ordinar}' power of attorne}^ was necessary to pro-
tect him from loss. And as the possession of the property was delivered
V) Meads, in connection with this power to dispose of it for the se-

982 KNAPP V. ALVORD. [CHAP. IX.

curity and protection of himself and tlie other endorsers, the property
must be considered as pledged to him for that purpose. The power to
sell, therefore, was coupled with an interest in the property thus pledged,
and survived. Bergen v. Bennet, 1 Caines' Cas. in Err. 1 ; Raymond
V. Squire, 11 John. Rep. 47. In the case decided by the Supreme
Court of the United States, Hunt v. Rousmanier, 8 Wheat. Rep. 174,
there was no actual pledge of the property. But a mere power of
attorney was executed authorizing the plaintiff to transfer it in the
name of Rousmanier. It was upon that ground, as I understand the
case, that C. J. Marshall held that the power was not coupled with
any interest in the vessels. And I presume his opinion upon that point
would have been different if the power had been accompanied by an
actual delivery of the vessels as a pledge for the payment of the debt.
But even in that case the court protected the rights of Hunt as an
equitable mortgagee of the vessels ; though the decision was placed
on the debatable ground that a party may be relieved in equity against
a mistake of law merely.

Being satisfied that Meads had a lien upon the property in his hands,
and a right to retain for the amount of these notes, under the special
clause in the written power executed by Alvord, it is not necessary to
inquire whether he is not also to be considered as the factor of Alvord ;
so as to entitle him to retain for his advances and liabilities, entirely
independent of this special provision in the power of attorney to him.
If the arrangement between Alvord and Meads gave to the latter the
character of a factor, there can be no doubt as to his lien upon the
property in his hands, and his right to retain for all his advances and
responsibilities in the business with which he was intrusted by his
principal. Although it was doubted, previous to the case of Kruger
V. Wilcox, Amb. Rep. 252, it is now well settled that a factor has a
lien and may retain for a general balance ; including responsibilities
incurred in the execution of his agenc}". Whit, on Lien, 103 ; 2 Kent's
Com. 640; Story on Agenc}', 34, § 34. And the case of Foxcraft v.
Wood, 4 Russ. Rep. 487, was probably decided upon the ground that
the arrangement under which the business at Birmingham was carried
on constituted Foxcraft the factor of Lanning, although he received
a fixed salary instead of the usual mercantile commissions for his
services.

The decision of the master was right in allowing to the administra-
trix the amount retained by Meads for the two notes.

The exceptions are therefore overruled with costs, and the
report of the inaster is confirmed.

SECT. 11.] BLACKSTONE V. BUTTEiiMOEE. 983

KINDIG V. MARCH.
Supreme Coukt of Indiana. 1860.

[15 Ind. 248.]

Appeal from the Elkhart Common Pleas.

Peukins, J. Kindig gave a power of attorney- to Chamberlain, to
confess a judgment in favor of March, for a debt due to him.

The power was duly executed and proved. We are satisfied of this
from an examination of the record.

When judgment was about to be entered in execution of the power,
Kindig presented to the court a revocation of it, on the ground that it
was for too large an amount. The court disregarded the revocation,
and di'ected the judgment to be entered.

A power of attorney to confess judgment is not revocable b}' act of
the party. See Story on Agency, § 477 ; 2 Archbold's Pr. p. 21. But
if any fact affecting its validity be alleged, the court will permit an
issue to be formed and tried, and act in the premises accordingl}-,
annulling the warrant or reducing the amount of judgment upon it, as
the case proved may require. In this case the defendant may yet
have the judgment corrected, on complaint filed and heard, as in other
cases. Archbold, supra ; 15 Petersdorf, pp. 3GG, 367, 368.

Per Curiam. The appeal is dismissed, with costs.

R. Heath, for appellant.

E. M. Chamberlain, for appellee.

BLACKSTONE v. BUTTERMORE.
Supreme Court of Pennsylvania. 1867.

[53 Pa. 266.]

Error to the Court of Common Pleas of Fayette County.

This was an action of ejectment, by Heniy Blackstone against George
fiuttermore, for a tract of land in Fayette Count}'.

The foundation of Blackstone's claim was as follows : —

Buttermore, being the owner of the land in controvers}', on the 15th
da}' of February, 1864, gave a power of attorne}' to Daniel R. David-
eon to sell it for $25,000, on terms mentioned in the power, which
concludes, " and I hereby ratify and confirm whatever contract he may
make in accordance with the above authority, and hereby bind myself
for its execution. This authority is irrevocable before the 1st day of
May next.'

984 BLACKSTONE V. BUTTERMORE. [CHAP. IX.

Davidson, as attorney of Buttermore, on the 19th day of April,
1864, entered into an article of agreement witli Hlackstone for the sale
of the land, wliich Buttermore refused to carry out. There was evi-
dence that Buttermore had revoked the power of attorney and Black-
stone had notice of the revocation before he entered into the article
with Davidson.

The court (Sterrett, P. J.) charged : —

" It is claimed by the plaintiff's counsel that the power of attorney
to D. R. Davidson, being in terms ' irrevocable,' &c., could not be re-
voked by the defendant Buttermore ; and more especially so, when
taken in connection with the testimony as to the compensation which
Davidson was to receive for selling the land.

"We cannot so instruct you. On the contrary we are of opinion
that there is nothing in the power of attorney itself, or in the other evi-
dence, or in both considered together, that could prevent Buttermore
from revoking the power to sell the land. And, if you find that he
did revoke the power of attornej' and that the plaintiff Blackstone had
notice of the revocation before he entered into the articles of agree-
ment for the purchase of the land, your verdict should be for the
defendant."

The verdict was for the defendant, and the charge of the court was
assigned for error.

A. Patterson, for plaintiff in error.

D. Kaine and C. E. Boyle, for defendant in error.

Agnew, J.^ a power of attorney constituting a mere agency is
alwavs revocable. It is only when coupled with an interest in the
thing itself or the estate which is the subject of the power, it is deemed
to be irrevocable, as where it is a security for money advanced or is to
be used as a means of effectuating a purpose necessary to protect the
rights of the agent or others. A mere power like a will is in its very
nature revocable when it concerns the interest of the principal alone,
and in such case even an express declaration of irrevocability will not
prevent revocation. An interest in the proceeds to arise as mere com-
pensation for the service of executing the power will not make the
power irrevocable. Therefore it has been held that a mere employ-
ment to transact the business of the principal is not irrevocable without
an express covenant founded on sufficient consideration, notwithstand-
ing the compensation of the agent is to result from the business to be
performed and to be measured I)}- its extent: Coffin v. Landis, 10
Wright, 4 26. In order to make an agreement for irrevocability con-
tained in a power to transact business for the benefit of the principal
binding on him, there must be a consideration for it independent of the
compensation to be rendered for the services to be performed. In this
case the object of the principal was to make a sale solely for his own
benefit. The agreement to give his agent a certain sum and a portion

1 After citing Hartley and Minor's Appeal, 53 Pa. 212 (1866). — Ed.

SECT. II.] BLACKSTONE V. BUTTERMORE. 985

of the proceeds, was merely to carry out his purpose to sell. But what
obligation was there upon him to sell, or what other interest beside his
own was to be secured by the sale? Surely his determination to sell
for his own ends alone was revocable. If the reasons for making a
sale had ceased to exist, or he should find a sale injurious to his inter-
ests, who had a right to say he should not change his mind? The
interest of the agent was only in his compensation for selling, and
without a sale this is not earned. A revocation could not injure him.
If he had expended money, time, or labor, or all, upon the business
intrusted to him, the power itself was a request to do so, and on a revo-
cation would leave the principal liable to him on his implied assump-
sit. But it would be the height of injustice if the power should be held
to be irrevocable merely to secure the agent for his outlay or his ser-
vices rendered before a sale. The following authorities are referred to :
Hunt V. Rousmanier, 8 Wheat. 174; Story on Agency, §§ 463, 464,
465, 468, 476, 477; Paley on Agency-, 155; 1 Parsons on Contracts,
59 ; Irwin v. Workman, 3 Watts, 357 ; Smyth v. Craig, 3 W. & S. 20.

The judgment is therefore affirmed.^

1 Ace. : Walker v. Denison, 86 111. 142 (1877) ; Chambers v. Seay, 73 Ala. 372
(1882). — Ed.

986 SERLE DE LANLARAZON's CASE. [CHAP. X.

CHAPTER X.

RATIFICATION.

SECTION I.
Early Authorities.

SERLE DE LANLARAZON'S CASE.

Nisi Prius. 1302.

[Y. B. 30 Ed. I. {Rolls Series), 126.]

The Dean and Chapter of Exeter brought an assise of novel disseisin
against Serle de Lanlarazon, and complained that they were disseised
of a hundred shillings of rent in N. Serle and the others came not,
and the assise was awarded by reason of their default. The Assise
being sworn, said that Serle and the Dean had made an exchange of
certain tenements, and that Serle had charged the tenements which
the Dean had put in his view, with a hundred shillings j'early, and had
granted that whenever the rent should be in arrear the Dean should be
at liberty to distrain ; that the Dean came within the period of sum-
mons of the Eyre and distrained for the rent, and that all those named
in the writ, except Serle and two others, rescued, &c. Brumpton, [J.].
Was he assenting in any manner to the rescue which the others made?
The Assise. The Dean and Chapter and Serle appointed a day for a
compromise, but could not agree ; and so it seems that he was assent-
ing to the rescue. Brumpton [J.]. Inasmuch as the rescue was made
in Serle's name, and he assented to the act, we consider him as a
principal disseisor. (The reason is, as Brumpton [J.] then said, quia
ratihabitio retro trahitur et mandato comparatur.) And so the Court
adjudges that the Dean do recover his seisin and his arrears (amounting
to so much), and his damages of a hundred shillings ; and that Serle
and the others be taken, &c., and that the Dean, &c., be in mercy for
their false plaint in respect of the two others.*

^ In the Digest, lib. 4.3, tit. 16, ]. 1, § 14, Ulpian speaks of Sabinus and Cassius,
" qui rati habitiouera mandato comparaiit," and says " rectius enim dicitur. in maleficio

SECT, l] anonymous. 987

ANONYMOUS.

Nisi Fuius. 1405-6.
[Y.B.7H. IV. 34, pi. 1.]

An inquest was charged between two parties on a writ of trespass
of certain cattle taken against tlie peace, in wliicli the defendant had
justified as bailiff for services arrear to his lord ; whereas the plaintiff
said that he was not bailiff of his lord at the time of the taking. And
the plaintiff said in evidence, that the defendant took the beasts claim-
ing heriot for himself, so that he could not at that time be bailiff to
another. And after their charge, Gascoigne [C. J.] said to them, that
if the defendant took them claiming property- in himself by way of
heriot, although the lord afterwards agreed to that taking for the
services due to him, still he could not be said to be his bailiff for that
time. But if, without command, he bad taken (the cattle) for services
due to the lord, and the lord had afterwards agreed to the taking, he
should be adjudged as bailiff, although he was not his bailiff in any
place before the taking, Qftod nota}

ANONYMOUS.

Common Pleas. 1586.

[Godbolt, 109, pi. 129.]

In trespass, the defendant did justify as bailiff unto another. The
plaintiff replied that he took his cattle of his own wrong, without that

ratihabitionem mandato comparari." Again, in lib. 46, tit. 3, 1. 1 2, § 4, Ulpian says :
"Rati enim habitio mandato comparatur." And see Story on Agency, § 239.

In Bracton de Legibus, f. 171 b , it is said: " Ratihabitio in hoc casu comparatur
mandato."'

Among the rules appended to the Sext are these: "IX. Eatum quis habere noa
pote.st quod ipsius nomine nou est gestum. X. Ratihabitionem retrotrahi, et mandato
non est dubium comparari. . . . XXI. Quod semel placuit amplius displicere non
potest. . . . XXXIII. INIutare consilium quis nou potest in alterius detrimentum. . . .
XLin. Qui tacet, consentire videtur. XLIV. Is, qui tacet, non fatetur ; sed nee utique
negare videtnr. . . . LV. Qui sentit onus, sentire debet commodum, et e contra. . . .
LXXVII. Rationi congruit, ut succedat in onere, qui substituitur in honore." Sexti
Decretalium, lib. v. tit. xii., De regulis juris. See ante p. 1, n. 1.

In Co. Lit. 207 a, it is said: "Omnis ratihabitio retro trahitur et mandato
aequiparatur." — Er>.

1 Reprinted from 6 M. & G. 239, note (a), where the reporters say: " With respect
to the last part of the Chief .lustice's .statement, it is, however, observable that Lord
Brooke, after abridging or rather transcribing this case, adds,* Quod qufetr inde. for
if he was once a trespasser witliout authority, tlie agreement cannot help him, for
an action was vested before.' Bro. Trespass, pi. 86. In T. 22 E. IV. Fitz. Bayllye,
pi. 4, a distinction is taken between a person acting as bailiff and a person acting as
servant, a precedent authority being said to be necessary for the latter, tiiough not for
the former. Vide Chambers v. Donaldson, 11 East, 65." — Ed.

988 LORD AUDLEY V. POLLARD. [CHAP. X.

that he was his bailiff. Anderson, C. J. If one have 2a'jse to distrain
my goods, and a slranger of his own wrong, without any warrant or
authority given him by the other, take my goods not as bailiff or serv-
ant to the other, and I bring an action of trespass against him ; can
he excuse himself by saying that he did it as my bailiff or servant ?
Can he so father his misdemeanors upon another? He cannot; for
once he was a trespasser, and his intent was manifest. But if one dis-
train as bailiff, although in truth he is not bailiff, if after, he in whose
right he doth it doth assent to it, he shall not be punished as a tres-
passer, for that assent shall have relation unto the time of the distress
taken ; and so is the book of 7 Hen. IV, And all that was agreed by
Pekiam [J.]. Shuftleicorth. What if he distrained generally, not
showing his intent, nor the cause wherefore he distrained? &c. Ad
hoc non fait responsum. Rodes [J.], came to Andekson [C. J.], and
said unto him. If I, having cause to distrain, come to the land and dis-
train, and another ask the cause whj' I do so ; if I assign a cause not
true or insufficient, yet when an action is brought against me, I may
avow or justify, and assign any other cause. Anderson [J.]. That is
another case ; but in the principal case clearly the taking is not good ;
to which Rodes [J.] agreed.

LORD AUDLEY v. POLLARD.
Queen's Bench. 1597.

\Cro. Ellz. 561.]

Ejectione Firm^. — It was held by all the justices, that where a
fine was levied with proclamation, and a friend of him who had the
right entered to his use, to avoid this fine without his appointment, and
the conusee re-entered, and the five years passed, that this fine is not
avoided, but shall bind ; for b}' the express words of the 4 Hen. VII.
c. 24, a fine shall bind, unless it be avoided b^' entry, claim, or action
of him who hath right thereto, within the five 3'ears ; and it is not
sufficient for a stranger to enter, unless it be by his command who hath
the right. But Gavtdy said, that the agreement peradventure of him
who had the right, within the five years after such an entry made in
his name, would serve ; but an agreement afterwards would not serve.
Quaere. — Note. Popham said, that he demanded the opinion of all the
justices in Serjeants-Inn about the principal case, and they were of the
same opinion.

S£CT. IL] smith V. COLOGAN. 989

SECTION IL

The Requisites of Ratification,

SMITH AND OTHERS V. COLOGAN and others.

Nisi Prius. 1787.

[2 T.R. 188 n. (a).]

This was an action on the case for neglecting to make an insurance
on goods. The question was, whether the defendants had done their
duty properly in the manner in wliich the insurance had been procured?
BuLLER, J. The foundation of this action is negligence in the defend-
ants, by which the plaintiffs have been injured. The defendants were
the correspondents of the plaintiffs. As to the orders for insurance hav
ing been received and accepted, there is no doubt. The only question
is, whether the defendants have been guilt3- of negligence at any period
of time which will make them liable? The defendants received the
orders in 1782, and they sent Anderson, their broker, to Llo3-d's Coffee-
bouse, to get the insurance effected, but he could not get it done from
five to six guineas, which was the premium which he offered. This was
not because the premium offered was too low for such a risk, but be-
cause the underwriters would not engage in the risk at all, on account
of the ship's not being registered at Lloj-d's. Now if the defendants,
who lived in London, had gone no further, and done nothing else, it
might have been a considerable doubt whether they would have been
liable ; for if a person to whom such orders are sent do what is usual to
get the insurance made, that is sufficient, because he is no insurer, and
is not obliged to get insurance at all events. But whether, b}' usage, it
were incumbent on the defendants in this case to apph- to the public
offices, is not material to be considered, because they went further, and
the plaintiffs have adopted their acts. The next step they took (as it was
now a forlorn hope) was to write to G. K. and Co. who were the ship-
owners, living at Newcastle, thinking them the most likely persons to
be able to get the insurance done ; which the}' accordinglj- did on the
5th of October, 1 782. So far from being to blame in this, the defendants
acted very meritoriously. When the loss was known, the}" endeavored
to get the policy out of the hands of G. K. and Co. and they applied
repeatedly, but could not succeed ; no diligence was wanting on their
parts ; but the answer was, that G. K. and Co. had other sums to re-
cover upon the same policy, and therefore could not let it out of their
hands. Fresh application was made in 1782, to which G. K. and Co.
sent an answer, which is indeed an evasive one ; but the defendants
had no means of obliging them to give it up, but by bringing an action,
and it can hardly be said that not doing so is negligence in them. If the
defendants had made a blunder in the insurance which would have

990 MILLIKEN V. COOMBS. fCHAP. X.

avoided the policy, tliat would have been negligence ; but the policy is
a good one ; and it was only owing to the knaveiy and failure of G. K.
and Co. that the plaintilTs have lost the benefit of it, for the under-
writers have actually paid the loss to G. K. and Co. In the midst of
these transactions, one of the plaintiffs came home ; all the business
was laid before him bj' the defendants ; he approved of their conduct ;
he took up the affair, and considered Anderson as his agent. Now if,
with a knowledge of all the circumstances, he adopted the defendant's
acts for a moment, he ought to be bound by them. If he had intended
to insist on his right to recover the money from the defendants, he
should never have looked to others at all. But afterwards, when G. K.
and Co. were likely to fail, then he considers the defendants as his
debtors.^ Verdict for' the defendants.

MILLIKEN AND OTHERS V. COOMBS and others.

Supreme Court op Maine. 1821.

[1 Me. 343.]

Debt on an arbitration bond, dated March 1, 1815. There were
several issues in the case, among which was that of non est factum.

To prove this issue on their part the plaintiffs produced the bond
declared on, which appeared to be executed by James D. Wheaton as
the agent and attorney of the defendants, and to be made in virtue of
a power given by the defendants to the attorne\', dated January 9,
1815. To prove the attorney's authority, the plaintiffs gave in evi-
dence a written power of attorney from the defendants to Wheaton,
under seal, dated February 1, 1815, but which, it appeared, was exe-
cuted on or about March 16, 1815.

It further appeared that the arbitrators, after having given due no-
tice, met and fully heard the parties, April 19, 1815, on which day the}'
made and published their award. Several of the defendants were
present before the arbitrators at the trial, and they all appeared by
their agent, regularly constituted, who managed the cause on their
part, but no objection was made b}'^ an}- person to the authority of
Wheaton to enter into the submission in behalf of the defendants.

The counsel for the defendants objected to this evidence as insuffi-
cient to support the bond as their deed ; and in suppoi't of this objec-
tion, they gave in evidence a written power of attornej', under seal,
from eight of the defendants to Wheaton, dated January 9, 1815, in
which all the defendants' names were recited, but four of them never
executed it. This power embraced the same subject-matter as the
power dated Februar}' 1.

1 Ace: Jones v. Atkinson, 68 Ala. 167 (1880). — Ed.

SECT. II.] MILLIKEN V. COOMBS. 991

The judge overruled this objection, and thereupon a verdict was re-
turned for the plaintiffs, subject to the opinion of the whole court upott
the facts above stated.

Orr and Thayer, for the defendants.

Greenleaf andi Wheeler^ for the plaintiffs.

Weston, J. The only question in this case arises from the objec-
tion made to the sufficienc}' of the power of attorney under tlie author-
ity of which the arbitration bond was executed. It is urged that the
power recited in the bond being described as bearing date January 9,
1815, that which was produced in evidence b3' the plaintiffs, bearing
date February 1, 1815, can have no tendency to give effect to the
bond.^ . . .

It is further contended that the power relied upon, not having been
executed until after the date and delivery of the bond, can give no
validity to that instrument. The power was executed prior to the
meeting of the arbitrators, and there can be no doubt that it was ante-
dated that it miglit appear as a subsisting power at the time of the ex-
ecution of tlie bond, and that the principals might thereby be concluded
from questioning the authority of their attornej-. In this point of view
the date becomes material, and must have been so considered by the
parties. The defendants are therefore estopped by their deed to aver,
or to prove, that it was in fact executed at a subsequent period. In
the case of Cady v. Eggleston et al., 11 Mass. 282, cited bj- the counsel
for the plaintiffs, which was debt upon a replevin bond which bore date
at the time of the service of the writ, but was not in fact executed by
Eggleston, the principal, until after the entrj' of the replevin suit,
Parker, C. J., in delivering the opinion of the court, observes, speak-
ing of the bond executed by Eggleston, the principal : " He is estopped
to say that it was made on a day different from its date, and must be
considered as having given force and effect to it on the da}- of the ser-
vice of the writ of replevin." The analogy in this particular between
the case cited and the case at bar is very striking.

But if the defendants are not estopped from showing the true time of
the execution of their power, it may well be considered a confirmation
of the authority' assumed hy their attorney, — it being very apparent
that the power was antedated that it might have that effect. That a
subsequent assent is tantamount to a precedent authority is a familiar
and well settled principle as to all acts done for another in which a
parol power only is necessary-. There seems to be no good reason why
the same principle should not be extended to cases in which an author-
ity, under seal, is essential, provided the subsequent assent or recogni-
tion be proved by an instrument of equal solemnity, and provided, as in
this case, it be dated back to a period anterior to the execution of the
deed or obligation it is intended to ratify-.

The defendants having first authorized their attorney to submit the

^ Passages dealing with this contention have been omitted. — Ei).

992 STETSON V. PATTEN. [CHAP. X.

matters in controversy between the parties to arbitration, with a full
knowledge that this had been done, were present, either in person or
by their agent, at the hearing before the arbitrators, managing and
conducting the business, and maliing no objection to their authority.
Had the result been in their favor, the plaintiffs must have been bound
by it; and we can discern no reason, either in law or equity, why the
defendants should not be equally bound.

Judgment must therefore be entered upon the verdict.

STETSON V. PATTEN et al.
Supreme Court of Maine. 1823.

[2 Me. 358.]

This was an action of covenant upon an agreement under seal,
signed by the defendants, and by " Simeon Stetson for Amasa Stetson,"
the plaintiff, b}' which the defendants agreed to enter upon certain
unimproved lands of the plaintiff in the plantation of Stetson in this
county, and make two farms thereof, and pay certain moneys to the
plaintiff with interest annuallj' ; in consideration whereof the plaintiff
was to make, execute, and deliver to them a sufficient warranty deed
of the same lots. In the instrument declared on, the said Simeon was
not named except in the signature as above, but the covenants were
wholl}- in the name of the plaintiff.

In a case stated by the parties, it was agreed that said Simeon had
not any authorit}' under the hand and seal of the plaintiff to sign and
seal the instrument declared on, but that, living in the vicinity of the
plaintiff's lands in this countyj he had been requested by the plaintiff,
who is his brother, to superintend and manage his interests relative to
said estate ; and that pursuant to this request he made and executed
the deed declared on, in behalf of the plaintiff, who resides in Massa-
chusetts, and which he afterwards delivered to the plaintiff. It was
further agreed that another deed of the same tenor and date was made
and delivered to the defendants, who, in pursuance of the agreement,
entered and made improvements upon the land ; and that about three
years after the date of the agreement they settled an account with the
plaintiff, and applied a balance due to them on account towards pay-
ment of the interest due on said agreement, which the plaintiff accord-
ingly indorsed thereon.

Hereupon the question was whether the plaintiff was bound hy this
agreement ; and if not, whether it was obligatory on the defendants.

McGaw., for the plaintiff

W. D. Williamson, on the other side.

Mellen, C. J. It is agreed that Simeon Stetson had not any
authoritv under the hand and seal of the plaintiff, to execute the

SECT. II.J MACLEAN V. DUNN. 993

instrument declared on ; and it therefore was not the deed of Amasa
Stetson. No authorities need be cited to show that when an instru-
ment under seal is executed b}' attorney, the attorney must be au-
thorized by deed under the hand and seal of the principal. This is
admitted by the counsel for the plaintiff, but he contends that in con-
sequence of certain acts which have been done by the principal since
the execution of the instrument, it has been sanctioned and adopted by
him, and thereby has become his deed. The circumstances relied on
as proof of such ratification are, his acceptance of the indenture from
the hands of his brother after its execution, and the indorsement on
the back of the instrument of mone}- received from the defendants on
account of the contract. With respect to these facts they cannot
amount to anything more than a sanction and ratification made by
parol ; and such ratification could not be more availing than a parol
authority given before the instrument was signed, which, as we have
seen, is of no importance. The plaintifl^, tlierefore, cannot prevail on
this ground.

But it is farther contended that though the instrument is not the
deed of Amasa Stetson, it is the deed of the defendants, and the}- are
bound b}- it, though the plaintiff is not.^ . . .

F'or these reasons we are of opinion that the action cannot be main-
tained, and a nonsuit must be entered, pursuant to the agreement of
the parties.^

MACLEAN V. DUNN and WATKINS, who survived AUSTIN.
Common Pleas. 1828.

[4 Bing. 722.]

This was a special action of assumpsit for not accepting and paying
for a quantity of Russian and German wool. At the trial before
Best, C. J., London sittings after Michaelmas term 1826, the fact?
of the case as far as they are material to the questions here noticed,
were as follows : —

The defendants were carrying on business in London as druggists
and dry-salters, when Ebsworth, a London wool-broker, met Watkins

1 Passages dealing with this contention are omitted. — Ed.

« Ace: Hanford v. McXair, 9 Wend. 54 (1832).

Contra: Mclntyre v. Park, 11 Gray, 102 (1858), where Metcalf, J., for the court,
Baid : " The defendant contends that a sealed instrument, executed without previous
authority, can be ratified only by an instrument under seal. However this may be
elsewhere, by the law of Massachusetts such instrument may be ratified by parol.
Cady V. Shepherd, 11 Pick. 400; Swan v. Stedman, 4 Met. 548. . . . The cases in
which this doctrine has been adjudged were those in which one partner, without pre-
vious authority of his copartners, executed a deed in the name of the firm. But w«
do not perceive any reason for confining the doctrine to that class of cases." — Ed.

994 MACLEAN V. DUNN. [CHAP. X.

at Manchester, near which place ^yatkius lived, and on the part of
the plaintiff agreed to sell the defendants 165 bags of Russian and
German wool, to be paid foi' partly b}' 145 bags of Spanish wool,
which, on the part of the defendants, he agreed to sell to the plaintiff,
and partly by acceptances or cash, on certain terms specified in the
following bought and sold note, which he delivered to the plaintiffs

clerk.

Manchester, 28th March, 1825.
D. Maclean, Esq.

Sir, — We liave sold for your account, to Messrs. Dunn, Austin,
Watkins, and Co. 166 bags of Russian and German wool, viz. [here
followed a specification of the wools as in the note made out for the
defendants, amounting to 165 bags only, the insertion of 166 having
been admitted on the trial to have arisen by mistake in the casting],
after deducting the amount of 145 bags of Spanish wool sold you, the
balance to be paid for b}' an acceptance at four months, with 2^ per
cent discount, or in cash with 5 per cent discount, at your option. —
Commission for selling, 1 per cent.

Ebsworth and Badham.

Manchester, 28th March, 1825.
D. Maclean, Esq.

Sir, — We have bought for your account, of Messrs. Dunn, Austin,
Watkins, and Co., 145 bags of Spanish wool, viz. [here followed a
specification of 145 bags of wool], the amount of 145 bags to be de-
ducted from the 165 bags of Russian and German wool bought of 3'ou
this day, and the balance to be paid for by an acceptance at four
months at 2^ per cent discount, or in cash, with 5 per cent discount,
on the 1st July, at your option. — Commission for purchasing, ^ per
cent.

Ebsworth and Badham.

This bought and sold note was written on one sheet of paper.

Corresponding bought and sold notes, mntatis mutandis, were
made out by Ebsworth for the defendants. In these notes the 1st of
July was specified as the day for cash with discount, at the end of the
sold note as well as at the end of the bought note. They were never
delivered to either of the defendants. Ebsworth, however, made out
a memorandum of the contract in his broker's book, called a contract-
book, which was not signed b}' him, and showed this memorandum to
Watkins, on the day it was entered, March 28, 1825.

Watkins assented to the contract, provided Dunn's consent could
be obtained. Ebsworth had had no previous communication with
Dunn, but saw him about the beginning of the next month, when, as
Ebsworth swore at the trial, Dunn assented to the bargain, and said
he was perfecth' satisfied with what was done.

On the 19th of that month Dunn told Ebsworth he would have
nothing to do with the contract, which Ebsworth communicated to the
plaintiff.

SECT. II.] MACLEAN V. DUNN. 995

Plaintiff, nevertheless, in May addressed the defendants collectively
on the subject of the deliver^' of the wool, when Watkins wrote
and referred him to Ebsworth, wlio afterwards, with the assent of
Watkins, and in the name of the defendants collectively, sold and
delivered sixty-eight bags of the German wool to Williamson and
Jones.

In July the plaintiff transmitted the invoice of the 165 bags of wool
to Manchester, addressed to the defendants, and requested payment
of what was due to him.

In September he requested them to receive and pa}' for the re-
mainder of the wools undelivered, and gave notice that unless the
account between him and the defendants were liquidated bj- the 1st
of November, the wool remaining undelivered would be put up to
public sale on that day, and the defendants held responsible for any
loss.

The defendants having declined to receive them, they were sold at
a loss ; whereupon the present action was commenced.

It was objected at the trial, on behalf of the defendants, that there
was no valid contract between the parties, the broker's book not
having been signed, and the bought and sold notes not having been
delivered to each party ; that Ebsworth, having no authority from
Dunn at the time of the bargain, was not an agent authorized within
the meaning of the statute of frauds ; that the bought and sold note
given to the plaintiff varied from that made out for the defendants,
the latter specifying the 1st of July as the day for cash with discount,
at the end of the sold as well as of the bought note ; the former
specifying that day only at the end of the bought note ; and that the
plaintiff had rescinded the contract, by the deliver}' of part of the wool
to Ebsworth, and the sale of the remainder.

A verdict was taken for the plaintiff, with leave for the defendants
to move the Court upon these points.

Taddi/, Serjt. accordingly obtained a rule nisi to enter a nonsuit or
have a new trial, on these and sundry other questions of law and fact.

With respect to the alleged variance, the Court held that, as the
plaintiff's bought and sold note was all written on the same sheet of
paper, the 1st of July, specified at the end of the bought note, must
be taken to apply equally to the contract in the sold note, and that
therefore the instrument corresponded sufficiently with the bought and
sold note made out for the defendants.

If the subsequent ratification by Dunn constituted Ebsworth, by
relation, an agent duly authorized within the meaning of the statute
of frauds, at the time of the contract, a bought and sold note having
been made out and signed by him on the part of the defendants, his
delivering it to them and his signing the contract-book would not be
essential to the validity of the contract.

It is only necessary, therefore, to report what was said on the
points, Whether a person who makes a contract for another, without

996 MACLEAN V. DUNN. [CHAP. X.

due authorit}', becomes, on the ratiflcation of the contract by the part}'
to be charged, a sufficient agent to bind him, within the meaning of
the statute of frauds, and Whether the disposal by the vendor, of
goods sold, with a view to prevent further loss upon the vendee's
refusing to receive them, be a rescinding of the contract.^

Wilde and Russell., Serjts., for the plaintiff.

Tadcly and Spankie, Serjts, contra. >

Best, C. J. It has been argued, that the subsequent adoption of
the contract by Dunn will not take this case out of the operation of
the statute of frauds ; and it has been insisted, that the agent should
have his authority at the time the contract is entered into. If such
had been the intention of the legislature, it would have been expressed
more clearl}' ; but the statute onh' requires some note or memorandum
in writing, to be signed hy the party to be charged, or his agent there-
unto lawfully authorized ; leaving us to the rules of common law, as
to the mode in which the agent is to receive his authority. Now, in
all other cases, a subsequent sanction is considered the same tiling
in effect as assent at the time. Omnis ratihabitio retrotrahitur et
mandato mquiparatur : and in my opinion, the subsequent sanction
of a contract signed b\' an agent, takes it out of the operation of the
statute more satisfactorily than an authorit}' given beforehand. Where
the authorit}' is given beforehand, the part}' must trust to his agent;
if it be subsequently to the contract, the party knows that all has been
done according to his wishes. But in Kinnitz v. Surry, where the
broker, who signed the broker's note upon a sale of corn, was the
seller's agent. Lord Ellenborough held that, if the buyer acted upon
the note, that was such an adoption of his agency as made his note
sufficient within the statute of frauds ; and in Soames v. Spencer, 1 D.
& R. 32, where A. and B., being jointly interested in a quantity of oil,
A. entered into a contract for the sale of it, without the authority or
knowledge of B. , who, upon receiving information of the circumstance,
refused to be bound, but afterwards assented by parol, and samples
were delivered to the vendees ; it was held, in an action against the
vendees, that B.'s subsequent ratification of the contract rendered it
binding, arvd that it was to be considered as a contract in writing
within the statute of frauds. That is an express decision on the point,
that under the statute of frauds the ratification of the principal relates
back io the time when the agent made the contract. . . .

Rule discharged.*

^ The opinion has been shortened by omittina: the discussion as to the resale. — Ed
* See McDowell v. Simpson, 3 Watts, 129 (1834). — Ed.

SECT. 11.] WILSON V. TUMMAN. 997

WILSON AND ANOTHER V. TUMMAN AND FRETSON.

Common Pleas. 1843.

[6 M. i- G. 236.]

Trespass, de bonis asportatis. Plea, by each defendant separatel}',
not guilt}-.

At the trial before Parke, B., at the last assizes for the count}' of
York, the following facts appeared.

In November, 1842, the plaintiffs took possession of the goods in
question, under a deed of assignment from Jeremiah New, to whom
the goods had previously belonged, and in whose house they still
were.

On the 3d of December, 1842, these goods were seized and taken
awa}' under some process directed to the sheriff in respect of a debt
due from New to Tummau. Neither of the defendants authorized this
seizure before, or at the time, it was made. Both the defendants were,
on the same day, served with notice that the plaintiffs claimed the
goods.

On the 3d of December, the defendant Fretson, who was Tumman's
attorney, gave a notice in writing to Mrs. Fearn, — to whose house the
goods had been removed the day before, — in which he said, " I am
coming about the goods which were seized," and desired her not to
part with the goods to any person except Tumman. On the 5th of
December Fretson sent her a written indemnity for retaining them.

On the 19th of Januar}-, 1843, notice was given to the defendants
that an action would be brought against them and the sheriff and his
officers for the seizure. The person who served Tumman with the
notice asked if he had any claim on the goods ; to which he answered,
" Yes, I have ; and a just claim, I consider."

Upon this evidence the learned judge directed the jury, that as the
order given by Fretson had not been acted upon by any refusal on the
part of Mrs. Fearn to deliver the goods to the plaintiffs, the onl}'
question for their consideration was, whether the seizure on the 3d of
December was made by order of the defendants or either of them.
That an order to seize the goods was in this case necessary, to charge
the defendants with the trespass ; that although the subsequent assent
and ratification by B of an act done by A, professing to act for and on
account of B is sufficient to make that act the act of B, by relation,
here, the sheriff's officers acted as ministers of the law, without any
intention to act as agents of the party suing out the process ; that as
to Fretson, the question of ratification did not arise, inasmuch as the
seizure could not be for his benefit. The learned judge therefore
asked the jury to find, whether the defendants, or either of them, gave
any previous authority for making the seizure, and whether the de-
fendant Tumman had authorized or had merely given a subsequent

998 WILSON V, TUMMAN. [CHAP. X.

assent to a seizure. The jury found Ihat neither of the defendants had
originally authorized tlie seizure, but that Tumman had subsequently
sanctioned and authorized such seizure. 'I"he learned judge directed
the verdict to be entered for both of the defendants, reserving leave to
the plaintiffs to move to enter a verdict for £2 IG.v. against Tumman, if
the court should be of opinion that his ratification made him liable as a
trespasser.

JiomjX(s, Serjt, in the following term moved to enter a verdict
for £2 16s against Tumman, or for a new trial on the ground of
misdirection.

TiNDAL, C. J. You may take a rule for entering a verdict against
Tumman ; there is no pretence for making Fretson a trespasser.

J^t/les, Serjt., now showed cause.

Bompas, Serjt. (with whom was Cleasby)^ in support of the rule.

Cur. adv. vult,

TiNDAL, C. J., now delivered the judgment of the court. This
case comes before us on a rule obtained bv the plaintiffs, by leave of
the learned judge at the trial, to enter a verdict for them against the
defendant Tumman, for £2 16s., if the court should think that his sub-
sequent ratification made him liable, as a trespasser, for the original
seizure.

The seizure of the plaintiffs' goods was made by some officers of the
sheriff, without any precedent authority from Tumman, who appeared
upon the evidence at the trial to be a plaintiff in some suit, the nature
of which did not transpire, but who is found by the jury not to have
given an}' precedent authority to take the goods of the plaintiffs, but
to have ratified the taking after it was made. The question, therefore,
is a dry question of law, whether the subsequent ratification by this
defendant, of a taking under such circumstances, is the same, in its
consequences, as a precedent command of the defendant. And we
think, under the authorities, and upon the reason of the thing itself,
that it is not.

That an act done, for another, b^^ a person not assuming to act for
himself, but for such other person, though without any precedent
authorit}' whatever, becomes the act of the principal, if subsequent!}^
ratified b_y him, is the known and well-established rule of law. In that
case the principal is bound by the act, whether it be for his detriment
or his advantage, and whether it be founded on a tort or a contract, to
the same extent as b}', and with all the consequences which follow from,
the same act. done b}' his previous authoritj'. Such was the precise
distinction taken in the Year-Book, 7 Hen. 4, fo. 35,* that if the
bailiff took the heriot, claiming property in it himself, the subsequent
agreement of the lord would not amount to a ratification of his au-
thorit}', as bailiff at the time ; but if he took it, at the time, as bailiff
of the lord, the subsequent ratification by the lord made him bailiff at
1 I. e., H. 7, H. 4, fo. 34, pi. 1. — Rep.

SECT. II.] WILSON V. TUMMAN. 999

the time. Tlie same distinction is also laid down by Anderson, C. J.,
in Godbolt's Reports, 109 : '• If one have cause to distrain my goods,
and a stranger, of his own wrong, without any warrant or authority
given him by the other, takes my goods, not as bailiff or servant
to the other, and I bring an action of trespass against him, can
he excuse himself by saying that he did it as his bailiff or servant?
Can he also father his misdemeanor upon another? He cannot; for
once he was a trespasser, and his intent was manifest."

In the present case the sheriff's officers, who were the original tres-
passers by taking the goods of the plaintiffs, were not servants or
agents of the defendant Tumman, but the agents of a public officer or
minister, obeying the mandate of a court of justice. They did not
assume to act, at the time, as agents or bailiffs of the then plaintiff
Tumman, but they acted as the servants of another, viz., the sheriff,
by virtue of the process directed to him by the court. And this forms
the distinction between the present case and that of Parsons i-. Llovd
relied upon in the argument. In the present case the sheriff, or the
sheriff's officers, seized under process, which is not suggested to have
been void or irregular, but must be taken to be valid process. In the
case in Wilson, the writ had been set aside as irregular ; and, conse-
quently, the arrest had been made without any autliorit}-. In that case,
therefore, the sheriff had acted, not under an^- authority of the court,
but under the direction of the plaintiff in the original action, who, by
suing out void process, was in the same situation as if he had orally
desired the sheriff or his otHcer to make the arrest. And on the latter
supposition, where a ca. sa. or fi.f<i. has been set aside for irregularitv,
it becomes a nullit}-, and no doubt the sheriff acts as the servant, and
b}' the command of the plaintiff who sued it out, and who is conse-
quently liable, as a principal, for the act of his agent.

If the defendant Tumman had directed the sheriff to take the goods
of the present plaintiffs, under a valid writ, requiring him to take the
goods of another person than the defendant in the original action, such
previous direction would undoubtedh' have made him a trespasser, on
the principle that all who procure a trespass to be done are trespassers
themselves, and the slieriff would be supposed not to have taken the
goods merel\- under the authoritj' of the writ, but as the servant of the
plaintiff. But where the sheriff, acting under a valid writ by the com-
mand of the court and as the servant of the court, seizes the wrong
person's goods, a subsequent declaration b}- the plaintiff in the original
action, ratifying and approving the taking, cannot, ui)on the distinction
above taken, alter the character of the original taking, and make it a
wrongful taking by the plaintiff in the original action.

On the ground of this distinction, we think the defendant Tumman
is not shown to be a trespasser, and that the rule must be discharged.

Rule disdiiirged. '

1 See Saunderson v. GriflRths, .5 B. & C. 909 (1826) ; Western rublishing House v.
District Township of Rock, 84 Iowa, 101 (189i;. — Ed.

1000 FOSTER V. BATES. l^CHAP. X.

FOSTER, Administrator, v. BATES and others.
Exchequer. 1843.

[1:2 M. ^- [y\ 226]

Assumpsit by the plaintiff, as administrator of E. Pollard, deceased,
for goods sold and delivered b}' the intestate, and also for goods sold
and delivered by the plaintiff after his death, and before administration
granted, and on an account stated with tlie plaintiff.

Plea, tion assumpsit.

At the trial before Rolfe, B., at the London Sittings after last Trinity
Term, it appeared that the defendants were partners in a company'
called the West African Company, trading to the coast of Africa, and
that one Old field was their agent at Fernando Po, The goods in ques-
tion had been sent b}' Pollard from this country' to Africa for sale ; he
afterwards died intestate ; and after his death, Oldfield, the defendants'
agent, purchased the goods from the agent of the intestate there, who
sold them for the benefit of the intestate's estate. Subsequently to the
sale, the plaintiff took out letters of administration to Pollard, and
brought this action for the price of the goods. It was objected at the
trial, that the plaintiff was not entitled to recover, as the letters of
administration did not relate back to the time of the death of the intes-
tate, so as to vest in the administrator the right to sue on a contract
made after his death. The learned judge, however, left the case to
the jury, who found a verdict for the plaintiff, leave having been reserved
to the defendants to move to enter a nonsuit.

Kelly having in the early part of this term obtained a rule accordingly,

W. H. Watson and Greenwood showed cause.

Hoggins (Kellg with him), in support of the rule.

Cur. adv. vult.

Parke, B. In this case, which was argued a day or two ago, we
delayed giving our judgment, not on account of any doubt we enter-
tained at the time, but in order that we might refer to the several
authorities cited at the bar. We are of opinion that the rule to enter a
nonsuit must be discharged. The onl}' question is, whether the plaintiff
could sue for goods sold and delivered b}- him as administrator of one
Pollard, upon the facts which were in evidence on the trial. It appeared
that the goods were sold after the death of the intestate, and before the
grant of letters of administration, bj- one who had been the agent of
the deceased on the coast of Africa ; and that they were there sold
avowedl}' on account of the estate of the intestate.

It is clear that the title of an administrator, though it does not exist
until the grant of administration, relates back to the time of the death
of the intestate ; and that he may recover against a wrong doer who
has seized or converted the goods of the intestate after his death,

SECT. II ] LEWIS V. READ. 1001

in an action of trespass or trover. All the authorities on this subject
were considered by the Court of Common Pleas, in the case of Tliarpe
V. Stallwood,^ where an action of trespass was held to be maintainable.
The reason for this relation given by RoUe, C. J., in Long v. Hebb,
Styles, 341, is that otherwise there would be no remedy for the wrong
done. The relation being established for the benefit of the intestate's
estate, against a wrongdoer, we do not see why it should not be equally
available to enable the administrator to obtain the benefit of a contract
intermediately made by suing the contracting party ; and cases might
be put in which the right to sue on the contract would be more beneficial
to the estate than the right to recover the value of the goods themselves.
In the present case there is no occasion to have recourse to the doctrine
that one maj^ waive a tort and recover on a contract ; for here the sale
was made by a person who intended to act as agent for the person,
whoever he might happen to be, who legall}' represented the intestate's
estate ; and it was ratified by the plaintiff, after he became administrator :
and, when one means to act as agent for another, a subsequent ratifica-
tion by the other is always equivalent to a prior command ; nor is it
any objection that the intended principal was unknown, at the time, to
the person who intended to be the agent, the case of Hull v. Pickersgill,
1 Bro. & B. 282, cited by Mr. Greenwood, being an authority for that
position. We are, therefore, of opinion that the plaintiff is entitled to
recover. Mule discliarged?

LEWIS V. READ and others.

Exchequer. 1845.

[13 M. ^' W. 834.]

Case. The first count was for illegally distraining and selling the
cattle of the plaintiff for rent due to the defendant Read from one John
Lewis, without duly appraising the same ; the second count was in
trover ; the third was for selling them for less than the best price.
Plea, not guilty, by statute. At the trial, before Coleridge, J., at
the last assizes for Montgomeryshire, it appeared that the plaintiffs
brother, John Lewis, was tenant from year to year to the defendant
Mr. Crewe Read, of a mill and farm called Aberborthen, and a moun-
tain sheep-walk called Penybryn ; and that, being in arrear with his
rent, the other defendants, by the verbal direction of a Mr. Owens,
who was Mr. Read's general agent for the management of his estate,
on the 11th May, 1844, distrained about forty sheep belonging to the
plaintiff to satisfy the rent, which were sold, under Mr. Owens's direc-
tions, for £14 los. Mr. Owens had expressly directed the defendants
not to take anytliing but what they should find on Aberborthen or on

^ 12 Law J. N. 8. 241. See also Brooke's Alir., delation, 15, — Rep.
2 See Ljell v Kennedy, 14 App. Cas. 437 (1889). — Ed.

1002 LEWIS V. READ. [CHAP. X.

Fenybryn. The main questions in the cause were, first, whether the
sheep (which were clearly shown to be the property of the plaintiff,
and not of John Lewis) were or were not distrained upon the sheep-
walk of Peuybryn, or beyond its boundary ; and, secondly, whether, at
the time of the distress, John Lewis's tenancy in, or possession of the
farm and sheep-walk continued : on both which points there was con-
flicting evidence. It appeared that the defendants had in the first
instance seized about a dozen sheep, which they found on the Peny-
br3n mountain, and that, while the}- were driving them down, and
somewhere ver}' near the boundary- of the Penybryn sheep-walk, these
were joined b}' the other sheep, which had been straying upon an ad-
joining sheep-walk belonging to another farm. Mr. Owens received
the proceeds of the sale of the sheep, and accounted for the money to
Mr. Read ; but there was no direct evidence that either Mr. Owens or
Mr. Read was informed where the sheep were taken, or had any dis-
tinct knowledge that the distress was not made on the Penybryn sheep-
walk. The learned judge, in summing up, told the jury, that, if the
sheep were distrained off the Penybryn sheep-walk, although it might
be so near the boundarv as to amount to a mere irregularity in the
bailiffs ; or if, at the time of the distress, the tenanc}' of John Lewis in
Penybryn had determined, and he did not continue in possession of it,
the defendants were all liable on the count in trover. The jury found
that the first lot of sheep were taken on Penybryn, but that there was
no evidence to satisfy them where the others were taken ; and that, at
the time of the distress, John Lewis had ceased to be the tenant, and
did not continue in possession of Penybryn ; and thereupon, under the
direction of the learned judge, a verdict was entered for the plaintiff
against all the defendants on the count in trover, damages £14 15s.

Welsby, in Michaelmas Term last, obtained a rule nisi for a new
trial, on the ground of misdirection ; contending that, without evidence
of the ratification by the defendant Read of the irregularity in the
execution of the distress, with knowledge of such irregularity', he could
not be liable in trover ; that there was no evidence of such ratification,
or, if there were, that the question had not been left to the jury.

W. Yardley and E. Beavan (with whom were Jervis and 'Wilkin)
now showed cause.

Welshy (with whom was Tovmsend)^ in support of the rule.

Parke, B. I am afraid the rule must be absolute. There is no
doubt that the acts of the defendant Read, in directing, through his
agent Owens, the sale of the sheep, and receiving the proceeds, were a
sufficient ratification of the act of the bailiffs in making the distress, as
to such of the sheep as were taken on the Penybryn sheep-walk, be-
cause the taking of them was within the original authority given to the
bailiffs b}- Owens as the agent of Read. But as to the others, which
were not proved to have been taken on Penybryn, and as to which,
therefore, the authorit}- was not followed, Mr. Read could not be liable
in trover, unless he ratified the act of the bailifl!s, with knowledge that

I
i

SECT. II.J WHITE V. SANDERS. 1003

they took the sheep elsewhere thau on Penvbnn ; or unless he meant
to take upon himself, without inquiry, the risk of any irregularity which
they might have committed, and to adopt all their acts. There appears
to have been evidence quite sufficient to warrant the jury in coming to
the conclusion that he did, in this sense, ratify the acts of the other
defendants; but, as this question was not left to the jury, the defend-
ant is entitled to a new trial.

Alderson, B., Rolfk, B., and Platt, B., concurred.

Hule absolute.^

WHITE ET AL V. SANDERS et al.
Sl'pkeme Court of Maine. 1850.

[32 Me. 188.]

Exceptions. Trover for a lot of goods.

In 18-48 the plaintiffs consigned the goods to one James Getchell,
with private verbal orders to sell at retail and for cash only. Before
the delivery of the goods to him, Getchell paid the plaintiffs $35 toward
them, and promised $15 more, but did not pa}' it. He gave what was
intended for securit}-, b}- an absolute deed of a store. After retailing
fifteen dollars worth of the goods, he sold all the residue to the defend-
ants, at the invoice prices, taking in payment fiftj' dollars in cash, a
horse, wagon, and harness, and the defendants' notes at six and nine
months for the balance. He exhibited the plaintiffs' invoice to the de-
fendants, and receipted his bill of sale to defendants, as agent for plain-
tiffs. After plaintiffs knew of the sale, they received of Getchell some
store furniture, which the}' immediatel}' sold, and also $13.55 in mone}',
but whether it was a part of the $50 received of defendant was not
shown. The plaintiffs also received about $25 for the rent of the
store.

1 In Freeman r. Kosher, 13 Q. B. 780, 789 (1849), Pattesox, J., for the court,
said : " The intention to adopt the act at all events is the same as adopting with
knowledge."

In Phosphate of Lime Co. v. Green, L. P. 7 C. P. 43, 58 (1871), Willes, J., said:
" With respect to those who did not think proper to seek information, the fact that
they (lid not choose to inquire is strong evidence that they were satisfied to adopt the
acts of the directors at all events and under whatever circumstances."

In Meehan v. Forre.ster, .52 N. Y. 277, 279-280 (1873), Rapallo, J., for the court,
said : " The agency of Pinkney was to collect the debt, not to purchase lands. When,
under those circumstances, Pinkney delivered to Bertine the deed obtained from the
plaintiff, it was the duty of Bertine to inquire and of Pinkney to communicate under
what arrangement the deed had been obtained. In the absence of any evidence to
the contrary, the presumption is that these duties were performed. (2 Hill, 464.) If
not, and Bertine received the deed Idiiidly without receiving or making any inquiry,
he must be deemed to have confided the whole matter to his attorney, and adopted
whatever arrangements the latter may have made to obtain the deed."

And see Fitzmaurice v. Bayley, 6 E. & B. 868 (1856). — Ed.

1004 DORD V. BONNAFF^E. [CHAP. X.

At the time of purchasing, tlie defendants knew of the private in-
structions to Getchell to sell for cash onl}-. This action was brought
after a demand upon the defendants of "the goods which they pur-
chased of James Getchell."

Shepley, C. J., presiding, instructed the jury that the demand was
sufficient, if they were satisfied that defendants purchased the goods of
Getchell, and took a bill of them.

The counsel for the defendants requested the judge to instruct the
jur\', that if the}' believed that plaintiffs, since their knowledge of the
sale to defendants, had accepted money, property, or security from
the agent on account of the goods sold, this might be regarded as a
ratification of the sale to defendants, notwithstanding the agent ex-
ceeded his authority in making it.

The judge declined giving said instructions, but did instruct the jur}'
that, if the plaintiffs received of Getchell, after he sold the goods to
the defendant, money, or other propert}', which they would not be en-
titled to receive unless the sale was regarded as valid, the sale would
thereb}- be ratified ; but if they would be entitled to receive tlie same
from Getchell, if the sale were regarded as unauthorized, the sale would
nof thereby' be ratified.

To the instructions and rulings the defendants except, after verdict
against them.

Tenxey, J., oralh' : The instruction as to the demand was correct.

The defendants' counsel requested certain instructions. But the
mere knowledge b}' the plaintiffs of the sale to the defendants, and
their receipt from Getchell of mone}- on account of the goods, would
not necessarily be a ratification. The modification of requested instruc-
tion was rightfully made by the judge. Exceptions overruled}

DORD V. BONNAFF^E & CO.
Supreme CodPvT of Louisiana. 1851.

[6 La. Ann. 563.]

Appeal from the Fourth District Court of New Orleans, Straw-
bridge, J.

A. IT. Ogden, for plaintiff.

W. C. Hanmer^ for defendants.

EusTis, C. J. This suit was commenced by attachment. The
appeal is taken by the plaintiff, from a judgment of the court of the
fourth district of New Orleans, dismissing his petition, on the ground
that no property of the defendants was attached. The plaintiff
attached certain assets in the hands of Eugene Rousseau, under pro-

^ See Tbacher v. Pray, 118 Mass. 291 (1873). — Ed.

SECT. II.] DORD V. BONNAFFEE. 1005

cess of garnishment. The garnishee claims to hold the assets, as
assignee of the defendants, for the use of their creditors. The plain-
tiff traversed the answers of the garnishee, and alleged that the assign-
ments under which he claims to hold are, on their face, fraudulent,
null, and void as to creditors ; and that no title to the property was
thereby vested in the assignee, which can prevail against his attach-
ment. The argument before us is on the validit}' and effect of the
assignments.

Edward Bonnaffee and Charles Bonnaffee were merchants, residing
in Havre, France, and there trading under the name of Bonnaffee &
Co. The assignment purports to be made b}- them in favor of Eugene
Rousseau, by their attorney in fact, Charles Bonnaffee, in the city of
New York, on the 11th of December, 1847. It purports to transfer to
the assignee all the property of the firm of Bonnaffee & Co., all the
assets, etc., originating from or connected with a bankrupt banking
concern in the State of Mississippi ; and to be in furtherance of a cer-
tain other assignment, bearing the same date, made bj- the said Bon-
naffee & Co., to Victor Delannay & Charles Sagon}', of the cit}' of
New York. This assignment is also signed by Charles Bonnafiee, as
attorney in fact of Bonnaffee & Co., of PMward and Charles Bonnaffee.
Both of these assignments were afterwards formally ratified bj- the
principals in France.

The plaintiff is the holder of several bills of ex(;hange, drawn by the
agent in New York, in the name of the firm, on the house in Havre,
protested for non-acceptance and non-payment. His residence is in
the cit}' of New York. In considering b}- virtue of what system of
laws the rights of the respective parties, in relation to the assignment,
are to be determined, the first question among those raised in argu-
ment, to be determined, is, as to the place in which the contracts were
made in a legal sense. They were both signed in the cit}' of New
York, b}- Charles Bonnaffee, as agent. That in favor of Delanna}'
and Sagony, so far as thej- are concerned, may be considered as having
been executed in that city, as they both resided there and signed the
assignment. That in fa\"or of Eousseau, he at the time being a resi-
dent of Jackson, in the State of Mississippi, may be considered, so
far as he is concerned, as executed in that State ; as the last consent
ma}- be held to be given by his acceptance of the assignment. But
whether to be considered as executed there or in New York, as the
laws in relation to instruments of this class are not supposed to be
different, it is not material to inquire. The difficulty appears to be,
the place in which the contracts were made by Edward Bonnaffee and
Charles Bonnaffee, the parties of the first part to the assignments.

It is not insisted that the assignments, as made b}' the agent in New
York, derive any validit}' from his signing them, as his authorit}- to
make them has not been shown. But the formal ratification of both
instruments b}- the parties in Havre, is urged as supplying this original
want of authority on the part of the agent. It is held that in cases of

1006 DOKD V. BONNAFFEE. [CHAP. X.

contracts, made between persons who are separated from each other
in different countries, by written communication, the contracts are
considered as made in the country-, and subject to its laws, where the
final assent has been given. This rule is laid down bj' Casaregis, in
his one hundred and seventN'-ninth discourse, and was recognized by
the Supreme Court in the case- of Whiston v. Stodder, 8 Mart. 95 [13
Am. Dec. 281]. In case of a contract made in a foreign country, by an
agent without authorit}-, which the principal at home afterwards ratifies,
the contract is considered as made in that foreign countr}', because the
ratification relates back tempore et loco, and is equivalent to an original
authority: 2 Casaregis, p. 310, discourse 179, sec. 20. The property
upon which the assignments were to operate, so far as this case is con-
cerned, must be considered at the time as being in the State of Missis-
sippi or of New York ; therefore, there can be no question as to the
laws by which the eflTect of the assignments, in relation to the attaching
creditor, is to be tested.

Neither of the assignments purports to have any other object than
an equal distribution of the property of the firm in the United States
among their creditors, without discrimination, or to make an}' appro-
priation of it, except that which the law of France and of Louisiana
would itself make. Their pui'pose was laudable in every point of view,
and one which the laws of every State must approve and encourage.
We think, from the authorities adduced, that the assignments are
unquestionably valid under the laws of New York. We are bound to
consider the decisions of the courts of the last resort of that State as
evidence of what the law is.

The .case of Cunningham y. Freeborn, 11 Wend, 241, appears to
afford a complete answer to the objections taken by the counsel of the
plaintiff, to the validity of the assignments. The district judge, in his
written opinion, has given his conclusions on the law of the case, in
which we fully concur. The several grounds of objection to the assign-
ments have been examined in detail, in the written argument of the
counsel for the assignee. As the questions raised involve points in a
jurisprudence which is not our own, we do not feel ourselves called upon
to do more than give the result of our investigations, which is in favor
of the validity of the assignments under the law by which they are to be
tested ; and that they vest the propert}'^ conve^'ed in the assignee, sub-
ject to the trusts, for the benefit of all the creditors. The interest thus
created can not be defeated by the attaching creditor, in the case pre-
sented to us.

The judgment of the District Court t's therefore affirmed, unth costs}

1 Contra: Shuenfeldt v. Junkermann, 20 Fed. R. 357 (U. S. C. C, N. D. Iowa,
1884.) — Ed.

SECT. II.] KUTLAND AND BURLINGTON RAILROAD V. LINCOLN. 1007

THE RUTLAND AND BURLINGTON RAILROAD CO. v.
THE Estate of WILLIAM LINCOLN, Appellant.

Supreme Court of Vermont. 1857.

[29 Vt. 206.]

Assumpsit to recover assessments upon the alleged subscr||tion of
the intestate for ten shares of the capital stock of the Rutland and
Burlington Railroad Company'. The case came to the count}- court by
appeal from the allowance of commissioners, and was tried by jury
upon the general issue, with notice that said subscription was not made
b}' the intestate nor by his authority, at the March Term, 1856. —
PiERPOiNT, J., presiding. The plaintiffs introduced the subscription
book of the Rutland and Burlington Railroad Company, which was
according to the onh' form of subscriptions for stock ever circulated by
said company', whereon was written at the foot of the contract for the
taking of stock the name of the intestate, as follows : " 1845, July 3,
William Lincoln — Ten Shares," and it appeared that the same was so
written by one John Buckmaster. The plaintiffs claimed that the in-
testate had ratified the act of Buckmaster in so signing his name, and
to prove this offered the testimony of sundry witnesses, not officers or
agents of said railroad company, that the intestate, after such signature
by Buckmaster, had said to them, but not to or in the presence of
Buckmaster, or of any officer or agent of the company, that he, the
intestate, had taken one thousand dollars of stock in said railroad com-
pany, with other evidence that the name of the intestate appeared in
no other place on their subscription books. The defendant objected to
the admission of this testimon}-, but the court admitted it. The de-
fendant thereupon requested the court to charge the jury that if they
should find that Buckmaster had no authority to sign the name of the
intestate at the time of signing, the mere declaration of the intestate as
alcove, made subsequently, did not amount to a ratification or confirma-
tion of the act of Buckmaster in making such signature. The court
declined so to charge the jury, but charged them that although they
should find that Buckmaster had no authority to sign the name of the
intestate at the time it was signed, yet the intestate could afterwards
confirm and ratify the act of Buckmaster so as to make him, the intes-
tate, liable as a subscriber ; and that if the jury should find from the
evidence that the intestate, after such signing, spoke of the stock as
his own and claimed it as his, it was a sufficient ratification and con-
firmation of the act of Buckmaster in making the subscription to entitle
the plaintiffs to recover in this action. The defendant offered as a
witness in his behalf Mrs. Anna Bucklin, wife of William Bucklin. It
appeared that Mrs. Bucklin was an lieir at law of the estate of the in-
testate, and interested in the suit, and that William Bucklin, her hus-
band, had signed the bond with the administrator to tlic probate court

1008 PHILADELPHIA, ETC. RAILROAD CO. V. COWELL. [CHAP. X.

which was given on the appeal to this court, and that tlie administrator
had abandoned the defence of the suit and that it was defended by the
heirs, and that the said William Bucklin had given a bond to the ad-
ministrator to indemnify him against any liability on account of the
suit. The plaintiffs objected to the admission of the witness and she
was excluded by the court. Verdict for the plaintiffs. Exceptions by
the defendants.

Mober^ & Chittenden, for the defendants.

S. II. Hodges, for the plaintiffs.

The opinion of the court was delivered by

Redfield, C. J. This case seems to have been tried in such a man-
ner as to be practically about as advantageous to the defendant, per-
haps, as if the charge had been strictly and technically correct. The
testimon}' no doubt tended very strongl}' to show either an original
authority in Buckmaster to make the subscription in the defendant's
name, or that he had consented to assume it. But the specific question
raised, and upon which the court were requested to charge was, whether
Lincoln's declaration to mere strangers that he had such an amount of
stock in the defendant's company amounted to such a ratification of the
subscription. And it is not claimed in argument that it did. We think
it impossible, therefore, to affirm the charge without making presump-
tions so remote that they seem to us somewhat unnatural.

And treating the trial as coming under the present statute, as we
must, the testimony of Mrs. Bucklin is not objectionable on the ground
either of her interest or that of her husband. And there is nothing in
the case to show that her testimony' tended to violate any confidence
between husband and wife. We see no reason, therefore, why she was
not a competent witness.

Judgment reversed and case remanded.

THE PHILADELPHIA, WILMINGTON, AND BALTIMORE
RAILROAD CO. v. COWELL.

Supreme Court of Pennsylvania. 1857.

[28 Pa. 329.]

Error to the District Court of Philadelphia.

This was an action brought on the 17th December, 1855, by John
W. Cowell, to recover from The Philadelphia, Wilmington, and Balti-
more Railroad Company the sum of $1700, being the dividends declared
b}' the defendants on four hundred shares of stock in the company held
by the plaintiff. The plaintiff resided in England, and on the stock
owned by him the company declared dividends, which were payable as
follows : 1st October, 1849, $600 ; Ist April, 1850, $300 ; 1st October,

SECT. II.] PHILADELPHIA, ETC. KAILItOAD CO. V. COWELL. 1009

1850, $400 ; 1st Ai)iil, 1851, $400. The dividends thus declared were
a[)plied to the payment of a subscription to forty shares of stock, made
by (/. H. Pusher for and on account of the plaintiff Covvell.

The authority-, under which the subscription was made, and the divi-
dends appropriated to the payment of the stock subscrii)tion, is set
forth in tlie following offer of testimony : —

" 1. That C. H. Fisher, Esq., had before the year 1848, through
Horace Binney, Esq., an acquaintance of the plaintiff, and with whom
he consulted as to his affairs and investments, communicated with the
plaintifl^then a stockholder to the amount of four hundred shares, in
respect to the condition and affairs of the company ; and, that in his
replies, the plaintiff had expressed his thanks for the information so
received.

" 2. That the condition and prosperity of the defendants made it
imperatively necessary for the protection of the interests of the stock-
holders and the preservation of the property of the company, that the
plaintiff should, with the other stockholders, subscribe for new stock of
the company-, authorized to be issued to the extent of ten per cent upon
the amount then held b}- each stockholder, and thus to raise a sum
necessary to meet impending liabilities.

"3. That C. H. Fisher, Esq., acting in good faith for the plaintiff,
and after consultation with Horace Binne}' and Clement C. Biddle,
Esqrs., acquaintances and friends of the plaintiff, did subscribe for
him to forty shares of the new stock so to be issued, and by reason
thereof, together with the subscription of other stockholders, the affairs
of the compan}- were retrieved, and the earnings of the road were ren-
dered applicable to the dividends sued for. That having so subscribed,
he did, upon the 16th day of December, 1848, address the plaintiff,
advising him of what had been done, and in the manner as b}- said
letters will appear.

"4. That the said letters were received in due course of mail by
the plaintiff, on or about the 29th daj- of December, 1848. That the
plaintiff made no repl}- thereto, and took no step and gave no notice of
an}- kind whatever, in disaffirmance of the act of said Fisher until on
or about the 17th da}- of November, 1855.

"5, That the dividends sued for in this action, were applied in pur-
suance of said subscription to the payment thereof, and the cash balance
due was paid by the said Fisher, and the certificate for said forty shares
was thereupon delivered to said Fisher on behalf of John W. Cowell,
the plaintiff."

The court rejected the evidence so offered.

The defendants, having pleaded the Statute of Limitations, asked
the Court to charge the jury that —

The dividend of October 1st, 1849, having been declared and made
payable more than six years before the institution of this suit, the
Statute of Limitations was a bar to [)laintiff's recovery of the dividend
of that date.

1010 PHILADELPHIA, ETC. RAILROAD CO. V. CO WELL. [CHAP. X.

Tliis the Court declined doing, but charged that the Statute of Limi-
tations did not appl}' to the dividend declared by defendants so due on
the 1st October, 1849 ; but that the plaintiff was entitled to receive the
same, though more than six 3-ears had elapsed between the declaring of
the said dividend and the institution of this suit.

The jury found for the plaintiff $1726.07. A rule for a new trial
was refused, and judgment entered upon the verdict.

The defendants thereupon removed the cause to this court, and as-
signed for error —

1. That the court erred in rejecting the evidence submitted^ by the
defendants as contained in their offer.

2. That the court erred in refusing the instruction praj-ed for, that
the Statute of Limitations was a bar to the recovery of the amount of
the dividend declared on the 1st October, 1849, being more than six
years, before suit brought.

St. G. T. CampheU, for plaintiff in error.

H. J. Williams, for defendant in error.

Woodward, J. The question presented by the first error assigned,
is not whether the evidence offered and rejected proved the plaintifTs
ratification of Fisher's subscription ; but whether it tended to prove it.

Suppose the court had admitted the evidence and the jur}' had found
the plaintiff's assent and ratification, could he have expected us to re-
verse the judgment on the ground that a question of fact had been
submitted and found without any evidence?

Could it have been said that the facts set down in the bill of excep-
tion, full}' proved, were no evidence of ratification ; that thej' were so
entirely irrelevant as to be unworthy of consideration by rational minds
in connection witli such a question ; that that question stood just as far
from demonstration after such evidence as before?

Unless this could have been said, and must have been said in the
event supposed, the judgment now before us must be reversed ; for
the question here is, in essence and substance, exactly the same as it
would have been then.

If this evidence might have satisfied the jurv ; that is, if it were of
a qualit}' to persuade reasonable men that Cowell did assent to Fisher's
assumed agency after he had full knowledge of what had been done, it
should have been admitted. The question in the cause was for the jury,
and not the court. But the fact to be inquired for, like all mental con-
ditions and operations, could be established only inferential!}'. We
judge of the mind and will of a party only from his conduct, and if he
have done or omitted nothing which may fairly be interpreted as indica-
tive of the mental purpose, there is indeed no evidence of it for either
court or jury ; but if his conduct, in given circumstances, affords any
ground for a presumption in respect to the mental purpose, It is for a
jury to define, limit, and apply the presumption.

The most material circumstance in the offer was the silence of Mr.
Cowell. Fully informed about the last of the 3'ear 1848 as to what had

SECT. II.] PHILADELPHIA, ETC. RAILROAD CO. V. COWELL. 10 U

been done iu bis name, and the motives and reasons for doing it, he did
not condescend to repl}- for nearly seven j-ears. It is insisted that this
fact, even when taken in connection with the other circumstances in the
offer, was no evidence of liis intention to assent to the new subscription.

The argument admits that where the relation of principal and agent
has once existed, or where the property of a principal has with his
consent come into the hands and possession of a third party, the prin-
cipal is bound to give notice that he will not sanction the unauthorized
acts of the agent, performed in good faith and for his benefit ; but it is
said, and truly, that Mr. Plsher had never been an authorized agent of
the plaintiff for an}' purpose, and that the plaintiff's propert}- had
never been entrusted to him. It is on this distinction that the learned
counsel sets aside the case of The Kentucky Bank v. Combs, 7 Barr,
546, and indeed all of the authorities relied on b}' the defendants.

I do not understand counsel to mean that there can be no valid rati-
fication unless one of the conditions specified — either prior agency- or
possession of principal's property — has existed, but that silence after
knowledge of the act done, is evidence of ratification only in such cases.
It must be admitted that the act of a mere stranger or volunteer is
capable of ratification, for all the authorities are so ; but the argument
is that the silence of the part}' to be affected, whatever the attending
circumstances, cannot amount to ratification of the act of a stranger.

In Wilson v. Tumraan, 6 M. & G. 242, C. J. Tindal, on the authority
of several old cases, considered that the effect of a ratification was de-
pendent on the question whether the person assuming to act, had acted
for another and not for himself. The act, it would seem, cannot be
ratified unless it was done in the name of the person ratifying. Ratuin
quis habere non potest,, quod ijjshfs nomine non est gestmn. And the
general rule is thus expressed in the Digest, 50 — Si quis ratura habue-
rit quod gestum est, obstringitur mandati actione.

If, then, the principle of law be that I can ratify that only which is
done in vas name, but when I have ratified whatever is done in my
name, I am bound for it as In' the act of an authorized agent, it is
apparent that m}' silence in view of what has been done is to be re-
garded simply as evidence of ratification, more or less expressive,
according to the circumstances in which it occurs. It is not ratification
of itself, but only evidence of it to go to the jury along with all the
circumstances that stand in immediate connection with it. Among
these, the prior relations of the parties are very important. If the
part}' to be charged had been accustomed to contract through the
agency of the individual assuming to act for him, — or had intrusted
property to his keeping, — or if he were a child or servant, partner or
factor, the relation, conjnnctionis favor, would make silence strong evi-
dence of assent.

On the other hand, if there had been no former agency, and no
peculiarity whatever in the prior relations of the parties, silence — a
refusal to respond to a mere impertinent interference — would be a

1012 PHILADELPHIA. ETC. KAILROAD CO. V. CDWELL. [CHAP. X

veiy inconclusive, but not an absolutely irrelevant circumstance. The
man who will not speak when he sees his interests atfected by another,
must be content to let a jury interpret his silence.

It is a clear principle of equity that where a man stands by knowingly,
and suffers another person to do acts in his own name without any op-
position or objection, he is presumed to have given authority' to do those
acts. Semper, qui non prohibet pro se i/itervenire, raandare credit ur :
Story's Agency, § 89.

We do not apply the full strength of this principle when we rule that
the plaintiff's silence, in connection with the circumstances offered, was
evidence fit for the consideration of a jurj' on the question of ratifica-
tion. If mental assent ma}' be inferred from circumstances, silence
may indicate it as well as words or deeds. To say tliat silence is no
evidence of it, is to sa}' there can be no implied ratification of an un-
autliorized act — ■ or at the least to tie up the possibilit}' of ratification to
the accident of prior relations. Neither reason nor authority justifies
such a conclusion. A man who sees what has been done in his name
and for his benefit, even b}- an intermeddler, has the same power to
ratif}' and confirm it that he would have to make a similar contract for
himself, and if the power to ratify be conceded to him, the fact of rati-
fication must be provable by the ordinary means.

For these reasons the distinction on which the argument for the
defendant in error rests seems to us to be too narrow.

The prior relations of the parties lend great importance to the
fact of silence, but it is a mistake to make the competency of the fact
dependent on those relations. I am aware that Livermore cites with
approbation, p. 50, the opinion of civil law* writers, tliat where a vol-
unteer has officiously interfered in the affairs of another person, and
made a contract for him without anj' color of authorit}', such other
person is not bound to answer a letter from the intermeddler, inform-
ing him of the contract made in his name, nor is his silence to be con-
strued into ratification. But it is to be remembered that such writers
are not laying down a rule of evidence to govern trials by jury, but are
declaring rather the effect upon the judicial mind of the party's silence.

It is one thing to sa}' that the law will not imply a ratification from
silence, and a very different thing to sa}' that silence is a circumstance
from which, with others, a jury ma}' imply it. Because evidence does
not raise a presumption so violent as to force itself upon the judge as
a conclusion of law, is the evidence therefore incompetent to go to a
jury as ground for a conclusion of fact? Xo writer with a common
law jury before his eyes, has ever maintained the affirmative of this
proposition. If it could be established it would abolish that institution
entireh', and refer every question and all evidence to the judicial
conscience.

But it is time now to remark that this case is far from being that
of a mere volunteer or intermeddler. True it is that Mr. Fisher had
not an3' pi'oper authority' to make the new subscription, but Messrs.

SKCT. II.] PHILADELPHIA, ETC. KAILHOAD CO. V. COWELL. 1013

Binney and Biddle, the friends and correspondents of the plaintiff, had
consulted him in reference to the plaintiff's interests in this railroad
company, and as a director of the company he stood in some sort as a
representative and trustee of the plaintiff, who was in a foreign country,
and without any authorized agent here. The proposition that every
stockholder should subscribe new stock to the extent of 10 per cent
was designed ; and as the event proved, was well designed, to retrieve
the fortunes of the company, but it was necessary- to its success that
every stockholder should come into the arrangement. The emergency
was pressing, and Mr. Fisher, manifestly acting in perfect good faith,
made the subscription for the plaintiff, which he believed the plaintiff
would not hesitate to make if personallv present.

When the plaintiff was fully informed that a sagacious financier, to
whom his chosen friends and correspondents bad referred his interests,
and who stood in the fiduciary relation of a director, had jjledged him
for a new subscription, wliich circumstances seemed to justify and de-
mand, I sav not that he was bound b}- it, nor even that he was bound
to repudiate it, but that his delay for near seven years either to approve
or repudiate, was a fact fit to be considered by a jury on the question
of ratification. The subscription was made in the plaintiff's name, and
accepted by the company as liis, and it does not appear that they knew
Fisher was acting without autliorit}-. The offer was to show that it was
highh' beneficial to the plaintiff. It was then such an act as is capable
in law of being ratified. The plaintiff" might make it his own by adop-
tion. Did he adopt it? He did if he ever gave it mental assent. How
could the compau}' show assent b}- anything short of a written agree-
ment, if not b}- evidence of the nature of that in the bill of exception ?
The medium of proof, where a mental purpose is the object of inquiry,
must conform to the mode of manifestation. To sa}- that you may
prove assent, but mav not give the circumstances in evidence from
which it is to be implied, is to say nothing.

Strongl\- persuasive as we consider the offered evidence, we do not
put our judgment so much upon the strength as upon the nature of it.
We think it was calculated to convince a jury that the plaintiff did
indeed assent to and approve of what Mr. Fisher had done in his be-
half, and therefore it should have been received and submitted.

If they should find from it the assent and ratification of the plaintiff,
the subscription became, as between him and the company, a valid con-
tract, and on his failure to pay the instalments, the compan}' had a right
to apply thereto the accruing dividends on his old stock.

When lie pays what remains unpaid upon the instalments, he will be
entitled to his certificates of stock.

The defence under the Statute of Limitations was not well taken. It
may be well doubted whether under our Acts of Assembh' any incorpo-
rated company can set up the Statute of Limitations against a stock-
holder's dividends. It certainl}- cannot be done until after a demand
and refusal, or notice to a sharcliolder that his right to dividends is

1014 A>'COXA V. MARKS. [CHAP. X.

denied. But here, so far from such notice having been given, the
companv recognize the plaintirl's right to the dividends, and claim to
have applied them to his use. The statute can have no place in such
a defence.

The judgment is reversed and a venire de novo aicarded?

A>'CONA V. MARKS.

Exchequer. 1862.

p H. i- y. 6S6.]

The first count of the declaration slated that the defendant, on. &c.,
by his check or order for the payment of money, directed to Messrs.
Attwood and Co., bankers, required them to pay to bearer £100 ; and
the plaintiff became the bearer of the check. And the said Messrs.
Attwood and Co. have not paid the said check, whereof the defendant
had due notice, but did not pay the same. Second count : that the
defendant, on, &c., by his promissory note, now overdue, promised to
pay to his own order £7o two months after date, and the defendant in-
dorsed the said note to Herbert Wright, who indorsed the same to the
plaintiff, but the defendant did not pay the same. The third count was
on a promissory note for £li'0, made and indorsed by and to the same
parties. The fourth count was on a bill of exchange drawn by H.
Wright upon and accepted by the defendant for payment to the order
of H. Wright of £100 three months atler date, and indorsed by H.
Wright to the plaintiff.

Pleas (inter alia). To first count : that the plaintiff never was the
bearer or possessed of the said check before suit. To second count:
that the said note was not indorsed to the plaintiff as alleged. To the
same count: that the plaintiff was not at the commencement of this
suit the lawful holder of the said note. To third count : pleas similar
to those pleaded to the second count. To fourth count: that the
bill was not indorsed to the plaintiff as alleged- To same count :
that the plaintiff was not at the commencement of this suit the lawful
holder of the said bill. Issues thereon.

At the trial, before Martix. B.. at tlie London Sittings after last
Trinity Term, it appeared that the defendant, who was a tradesman at
Birmingham, had indorsed and delivered to one Herbert Wright, an
attorney and money lender at Birmingham, the promissory notes, bill
of exchange and check mentioned in the declaration, upon his discount-
ing them for the defendant Wright, in his evidence, stated that he

» See Prince r. Qark, 1 B. & C. 1S6 (1S2.3) ; Ward r. Williams, 26 HI 4-47 ( 1S61 j ,
Foster r. Rockwell, 104 Mass. 167 (1870) ; Peck r. Ritchey, 66 Mo. 114. 120 11877);
ExceHor Stone Co.. 1 111. App. 27-3 (1878) ; Hevn r. O'Hagen, 60 ilich. 150 (1886).— Eft

6ECT. n.]

AXCOXA 'C. MAEKS.

101^

came to London and saw Mr. Tucker, a member of the firm of Greville

aud Tucker, attome
agents. He hsi vr;-
change, au'.;
in an actio li u^vu :..
the autliorit}' of Anc
to receive these bills U

-don, who had occasi'. :„% his

: check, promissory ncv of ex-

jker to find a client who would lend his name
T ' '^aid there was no difficulty, as he bad
-.iffj. Wright then said. -'I withy oa
A^c^i-u and to bring an i, r. them in

his name ; ' and Wright then indorsed and delive: :o Tucker.

On a previous occasion, Wright had a bUl of the defendant's, and asked
Tucker if be could find a client who would allow his name to be x,-. ' '
an action u[>on it, when Tucker mentioned Ancona, the plaintif
the action was brought in his name and the money reeorered. Tuvrier
corroborat^i Wrt^'Lt'? .?tav:r:-nt. and said that at the time be had a
gt' :o use his name for such purposes.

was issued. H '

•r, atiO. --- . it. XliC

i - - ; used hl^ __._. .fore. He

as used in this action ontil after it

- '.old of it he was •!]]'_ * ' -^

mr W rigrhf. and 1 ;. ^ X

had no knc -
was brooghi. .
shoald vo on.

y interest

in or possessio:.

not have brooe'i:

be/'r T • ..:,:, on a day anterl
th" :' " r secmriti-e- _'

r '.. : - - - - --

bj Wright to Tucker

as no evidence to support (ftw tiie

recorer.

1016 KELNER V. BAXTER. [CHAP. X.

Pollock, C. B. We are all of opinion that the rule ought to be dis-
charged. There is no doubt that the plaintiff, at the time the action
was brought, did not know that his name was used, but the question is
whether, the securities having been delivered to Greville and Tucker
(who on a previous occasion had the plaintiffs permission to use his
name) for the purpose of the action being brought on them in the plain-
tiff's name, and the action having been so brought, and the plaintiff hav-
ing subsequently ratified the proceedings, he is entitled to retain the
verdict. 1 think he is. In my opinion it makes no difference whether the
ratification is before action, or after.^ . . . Hule discharged."

KELNER V. BAXTER and others.
Common Pleas. 1866.

[L. R. 2 C. P. 174.]

The declaration was for goods sold and delivered, goods bargained
and sold, interest, and upon accounts stated.

The defendants pleaded, — first, never Indebted, — secondly, pay-
ment, — thirdly, as to the claim for goods sold and delivered, and
goods bargained and sold, that, by agreement in that behalf made b}^
and between the plaintiff and the defendants on behalf of a joint stock
compan}' then proposed to be formed under the Joint Stock Companies
Act, 1862, and to be called The Gravesend Royal Alexandra Hotel
Company, Limited, the goods were sold to and bought and received by
the defendants upon the terms that if the company-, when registered,
should adopt the said contract, and agree with the plaintiff to pa^- the
agreed price of the said goods, the goods should become the property
of the company, and the defendants should be exonerated and dis-
charged from all further liability in respect thereof, and that such
agreement of the company should be accepted by the plaintiff in full
satisfaction and discharge of all such liability ; that the company was
registered by the nhme of The Gravesend Alexandra Hotel Company',
Limited, and, when so registered, by agreement in that behalf made
with the plaintiff, adopted the first-mentioned contract ; and thereupon,
and by and with the consent of the defendants, the goods became the
property of the company, and the plaintiff and the company eventually
agreed with each other to be bound by the first-mentioned contract,
and the company agreed with the plaintiff to pa}' to the plaintiff the
agreed price of the goods, and the plaintiff then before the action
accepted the agreement so made with the company in full satisfaction
and discharge of the claims therein pleaded to.

^ A passage not dealing -with ratification has been omitted.

Channell, Wilde, and Martin, BB., delivered concurring opinions. — Ed.

2 Contra: Witteubrock v. Bellmer, 57 Cal. 12 (1880). — Ed.

SECT. II.] KKLNER V. BAXTER. 1017

Fourth plea, to the claim for goods sold and delivered, and goods
bargained and sold, that, by agreement in that behalf made by and
between the plaintiff and the defendants on behalf of a joint stock
company then proposed to be formed under the Joint Stock Companies
Act, 18G2, and to be called The Gravesend Royal Alexandra Hotel
Company, Limited, the said goods were sold to and bouglit and re-
ceived by the defendants on behalf of the said intended company ;
that the said company was formed and registered under the said act by
the name of The Gravesend Hotel Compan}', Limited ; and that after-
wards and before this suit, b}' agreement in that behalf made by and
between the plaintiff, the defendants, and the said company, the goods
were transferred to and became the property of the companj-, and the
compan}' agreed with tlie plaintiff to pa3- the price thereof, and the
plaintiff accepted and received such agreement on the part of the com-
pany in full satisfaction and discharge of the claims therein pleaded to.
Issue thereon.

At the trial before Erle, C. J., at the sittings in London after last
Trinity Term, the following facts appeared in evidence : The plaintiff
was a wine merchant, and the proprietor of the Assembly Rooms at
Gravesend. In August, 18G5, it was proposed that a company should
be formed for establishing a joint-stock hotel company at Gravesend,
to be called The Gravesend Royal Alexandra Hotel Company, Limited,
of which the following gentlemen were to be the directors, viz., Mr. L.
Calisher, Mr. T. H. Edmands, Mr. M. Davis, Mr. Macdonald, Mr.
Hulse, Mr. N. J. Calisher (one of the defendants), and the plaintiff.
The plaintiff was to be the manager of the proposed company, and Mr.
Dales (another of the defendants) was to be the permanent architect.
One part of the scheme was that the company should purchase the
premises of the plaintiff for a sum of £5,000, of which £3,000 was to be
paid in cash, and £2,000 in paid up shares, the stock, etc., to be taken
at a valuation ; and this was carried into effect and completed, the other
defendant (Baxter) being the nominal purchaser on behalf of the com-
pan}'. In December a prospectus was settled. On the 9th of January,
1866, a memorandum of association was executed bj' the plaintiff and
the defendants and others.

Pending the negotiations the business had been carried on by the
plaintiff, and for that purpose additional stock had been purchased by
bim ; and on the 27th of January, 1866, an agreement was entered
into for the transfer of this additional stock to the company, in the
following terms : —

January 27th, 1866.

To John Dacier Baxter, Nathan Jacob Calisher, and John Dales, on

behalf of the proposed Gravesend Royal Alexandra Hotel Company',

Limited.

Gentlemkn, — I hereb}- propose to sell the extra stock now at tht

Assembly Rooms, Gravesend, as per schedule hereto, for the sum oi

£900, payable on the 28th of February, 1866.

'turned) John Kelneb.

1018 KELNEK V. BAXTER. [CHAP. X.

Then followed a schedule of the stock of wines, etc., to be purchased,
and at the end was written, as follows : —

To Mr. John Kelner.

giR^ — We have received your offer to sell the extra stock as above,
and hereby agree to and accept the terms proposed.

(Signed) J. D. Baxter,

N. J. CA1.ISHER,

J. Dales,
On behalf of the Gravesend Royal Alexandra
Hotel Company, Limited.

In pursuance of this agreement the goods in question were handed
over to the company, and consumed by them in the business of tlie
hotel ; and on the 1st of February a meeting of the directors took
place, at which the following resolution was passed: ''That the ar-
rangement entered into by Messrs. Caiisher, Dales, and Baxter, on
behalf of the compan3-, for the purchase of the additional stock on the
premises, as per list taken by Mr. Bright, the secretary, and pointed
out by Mr. Kelner, amounting to £900, be, and the same is heieby
ratified." There was also a subsequent ratification by the company,
viz., on the 11th of April, but this was after the commencemeut of
the action.

The articles of association of the company were duly stamped on the
13th of Februar}', and on the 20th the company obtained a certificate
of incorporation under the 25 & 26 Vict. c. 89.

The company having collapsed, the present action was brought
against the defendants upon the agreement of the 27th of January.

On the part of the defendants oral evidence was tendered for the
purpose of showing that it never was intended that they should be
personally liable ; but his lordship rejected it. It was then submitted
that, inasmuch as the agreement was not entered into by the defend-
ants personally, but only as agents for the hotel compan}', they thereby
incurred no personal obligation to the plaintiff, who was himself one of
the promoters.

For the plaintiff it was insisted that, there being no company in
existence at the time of the agreement, the parties thereto had rendered
themselves personally liable ; and that there could be no ratification of
the contract by a subsequent!}' created company.

A verdict was taken for the plaintiff for £900, subject to leave re-
served to the defendants (upon giving security) to move to enter a non-
suit, on the ground that the agreement of the 27th of January did not
make them personally liable.

Nov. 6, 1866. Sfi/mour, Q. C, obtained a rule nisi accordingly,
and also for a new trial on the ground of misdirection on the part of
the learned judge, " in not allowing witnesses to be called to contradict
the plaintiff as to the defendants' personal liability."

Nov. 13, 14. J. Brouv/, Q. C, and Thesi(/er, showed cause.

Seymour, Q. C, in support of the rule.

SECT. II.] KELXEK V. BAXTEE. 1019

Erle, C. J.^ a difficulty has arisen because the plaintiff has at the
head of the paper addressed it to the defendants, "on behalf of the
proposed Gravesend Ro3al Alexandra Hotel Company, Limited," and
the defendants have repeated those words after their signatures to the
document ; and the question is, whether this constitutes au}' ambiguity
on the face of the agreement, or prevents the defendants from being
bound by it. I agree that if the Gravesend Royal Alexandra Hotel
Company had been an existing company at this time, the persons who
signed the agreement would have signed as agents of the company.
But, as there was no company in existence at the time, the agreement
would be wholly inoperative unless it were held to be binding on the
defendants personally. The cases referred to in the course of the argu-
ment fully bear out the proposition that, where a contract is signed
by one who professes to be signing '• as agent," but who has no princi-
pal existing at the time, and tlie contract would be altogether inopera-
tive unless binding upon the person who signed it, he is bound thereby :
and a stranger cannot b}" a subsequent ratification relieve him from
that responsibilit}'. When the compan}- came afterwards into exist-
ence it was a totall}' new creature, having rights and obligations from
that time, but no rights or obligations b}- reason of anything which
might have been done before. It was once, indeed, thought that an
inchoate liability might be incurred on behalf of a proposed company,
which would become binding on it when subsequentl}' formed ; but that
notion was manifestly contrar}- to the principles upon which the law of
contract is founded. There must be two parties to a contract ; and
the rights and obligations which it creates cannot be transferred bj- one
of them to a third person who was not in a condition to be bound bj- it
.at the time it was made. The histor}' of this company makes this con-
struction to ni}' mind perfectly clear. It was no doubt the notion of
all the parties that success was certain ; but the plaintiff parted with
his stock upon the faith of the defendants' engagement that the price
agreed on should be paid on the day named. It cannot be supposed
that he for a moment contemplated that the payment was to be con-
tingent on the formation of the company b}- the 28th of February-.
The paper expresses in terms a contract to bu}'. And it is a cardinal
rule that no oral evidence shall be admitted to show an intention differ-
ent from that which appears on the face of the writing. I come, there-
fore, to the conclusion that the defendants, having no principal who
■was bound originall}', or who could become so hy a subsequent ratifi-
cation, were themselves bound, and that the oral evidence offered is
not admissible to contradict the written contract.

"WiLLES, J. I am of the same opinion. Evidence was clearly inad-
missible to show that the parties contemplated that the liabilit}' on this
contract should rest upon the compan}' and not upon the persons con-
tracting on behalf of the proposed compau}-. The utmost it could
amount to is, that both parties were satisfied at the time that all would

1 After stating the case. — Ed.

1020 KELNER V. BAXTER. [CHAP. X

go sinoothl}-, and consequently that no liabilit}- would ensue to the
defendants. The contract is, in substance, this: "I, the plaintitf,
agree to sell to 3'ou, the defendants, on behalf of the Gravesend Royal
Alexandra Hotel Company, my stock of wines; " and, " We, the de-
fendants, have received 30ur offer, and agree to and accept the terms
proposed ; and you shall be paid on the 28th of February next." Who
is to pay? The compan}', if it should be formed. But, if the com-
pau}- should not be formed, wlio is to pa}'? That is tested b}- the fact
of the immediate delivery of the subject of sale. If payment was not
made by the compau}-, it must, if by anybodj-, be b}- the defendants.
That brings one to consider whether the compan\- could be legally
liable. I apprehend the compan}- could only become liable upon a new
contract. It would require the assent of the plaintiff to discharge the
defendants. Could the company become liable by a mere ratification ?
Clearly not. Ratification can only be b}- a person ascertained at the
time of the act done, — by a person in existence either actually or in
contemplation of law ; as in the case of assignees of bankrupts and
administrators, whose title, for the protection of the estate, vests by
relation. The case of an executor requires no such ratification, inas-
much as he takes from the will. It is unnecessary, however, to pursue
this further. In addition to the case cited at the bar, I would refer to
Gunn V. London and Lancashire Fire Insurance Company, 12 C. B.
N. s. 694, where this court, upon the authorit}' of Payne v. New South
Wales Coal and International Steam Navigation Compan}', 10 Ex. 283,
held that a contract made between the projector and the directors of a
joint-stock company provisionally registered, but not in terms made
conditional on the completion of the company, was not binding upon
the subsequent completely registered company', although ratified and
confirmed by the deed of settlement: and WiUiams, J., said, that,
" to make a contract valid, there must be parties existing at the time
"who are capable of contracting." That is an authority of extreme im-
portance upon this point ; and, if ever there could be a ratification, it
was in that case. Both upon principle and upon authority, therefore,
it seems to me that the companj' never could be liable upon this con-
tract; and, as was put by my lord, construing this document id res
magis valeat qiiam pereat, we must assume that the parties contem-
plated that the persons signing it would be personally liable. Putting in
the words " on behalf of the Gravesend Royal Alexandra Hotel Com-
pany," would operate no more than if a person should contract for a
quantity of corn "on behalf of my horses." As to the suggestion
that there should have been a special count, that is quite a mistake.
There need not be a special count unless there was a person existing at
the time the contract was made who might have been principal. The
common count perfectly well represents the character of the liability
which these defendants incurred. It is quite out of the question to
suppose that there was any mistake. The document represents the
real transaction between the parties. I think that the course taken at
the trial was perfectly correct and that the rule should be discharged.

SECT. 11.] GRANT V. BEARD. 1021

Byles, J. I am of the same opinion. At first, I must confess, I
entertained some doubt, the contract appearing on the face of it to
have been entered into by the defendants on behalf of the eompan}-.
The true rule, however, is that stated by Mr. Thesiger, viz., that
persons who contract as agents are generally personally responsible
where there is no other person who is responsible as principal. Sup-
pose this company never came into existence at all, could it be doubted
tliat these defendants must be held to have bound themselves per-
sonally? Then, was it contemplated that the liabilit}' was conditional
only until the company' should be formed? It is said that the contract
was ratified by the compan}' after it came into existence. There could,
however, be no ratification. Omnis ratihabitio retrotrahitur, et man-
dato priori (Bqurparatur : but the ratification must be b}- an existing
person, on w^iose behalf the contract might have been made at the
time. That could not be so here : a subsequent ratification b}- the
company could onh' be with the assent of the plaintiflT; and then it
would be a new contract. Mr. SeAMnour contended that the contract
might amount to a personal undertaking on the part of the defendants
that the company shall pa}'. That would make them equally liable.
An}' objection on the score of the Statute of Frauds would be cured
by the Mercantile Law Amendment Act 19 & 20 Vict. c. 97. In no
way therefore, in which it can be put, could the company become
responsible.^ Rule discharged?'

GRANT V. BEARD et al.
Supreme Court of New Hampshire. 1870.
» [50 N. H. 129.]

Assumpsit, to recover for repairs on two wagons. The plaintiff
alleged that tlie defendants' father, who brought the wagons to be re-
paired, was their agent, and could and did bind them to pay for the
repairs. Whether the father was the agent of the defendants, whether
the defendants owned the wagons or received any benefit from the
repairs, and whether the defendants subsequently assented to and rati-
fied the contract, w-ere questions in dispute on which the evidence was
conflicting.

The plaintiff testified that the defendants' father told him that he
was acting as agent for his two boys in the army (the defendants).

^ Keating, J., delivered a concurrin^^ opinion. — Ep.

2 Ace. : Scott V. Lord Ebury, L. K. 2 C. P. 255 (1867) ; In re Empress Engineering
Co., 16 Ch. D. 125 (C. A. 1881) ; In re Northumberland Avenue Hotel Co., 33 Ch. D.
16 (1886).

Contra: Whitney v. Wyman, 101 U. S. 392 (1879) ; Oakes v. Cattaraugus Water
Co., 143 N. Y. 4.30 (1894). "

See Howard v. Patent Ivory Co., 38 Ch. D. 156, 164 (1888); McArtliur v. Times
Printing Co., 48 Minn. 319 (1892). — Ed.

1022 GRANT V. BEARD. [CHAP. X.

The plaintiff further testified that he gave the credit to the defendants,
though lie charged the work on his book to the father, because he did
not know the names of the defendants.

The plaintiff's evidence tended to show that the defendants, in their
father's lifetime, some time after the repairs were made, said the plain-
tiff's bill was all right ; that the^- paid part of it, and promised to pay
the balance.

The jur}' were instructed, that if the father was the duly authorized
agent of the defendants to make the contract and bind them, the de-
fendants would be liable in this action.

The jur}' were also instructed that, in deciding whether the father
was authorized by his sons (before the repairs were made) to make
such a contract as their agent, the jury could consider the subsequent
assent of the sons (if they found such assent) as evidence, from which,
if the jurj' saw fit, they might find that the father was authorized to
act as agent when he got the repairs done ; and that, so far as this
question of prior authority was concerned, the assent was evidence
competent to be considered against the defendants, whether they owned
the wagons or received any benefit from the repairs, or not.

Among other things the jury were further instructed that, if they
found that the defendants did not authorize their father to make the
contract as their agent, but afterwards assented to what he had done,
their assent would not make them liable in this action unless they
owned the wagons at the time the}" were repaired, or received some
benefit from the repairs. To this last instruction the plaintiff excepted.

The plaintiff requested the following instruction: "If the jury find
that the father procured the credit as the agent, either actual or
assumed, of the defendants, and the credit was really given to them,
then the subsequent ratification by the defendants will bind them, even
though they may not have received the benefit of the credit."

The instruction was not given, and the plaintiff excepted. Verdict
for the defendants.

Motion to set aside the verdict.

J. H. Benton^ Jr., for the plaintiff.

Fletcher <& JTei/wood, for the defendants.

Foster, J. The ratification, upon full knowledge of all the circum-
stances of the case, of an act done by one who assumes to be an agent,
is equivalent to a prior authority. By such ratification the party will
be bound as full}', to all intents and purposes, as if he had originally
given express authority or direction concerning the act.

A parol contract may be ratified by an express parol recognition of
the act, or by conduct implying acquiescence, or by silence when the
party, in good faith, ought to speak. And so the principal may be
estopped to deny the agent's original authority. Story on Agency,
§ 239; Metcalf on Contracts, 112; Hatch v. Taylor, 10 N. H. 538;
Despatch Line v. Bellamy Manf. Co., 12 N. H. 232 ; Davis v. School
District, 44 N. H. 399 ; Warren v. Wentworth, 45 N. H. 564 ; Forsyth r.
Day, 46 Me. 194 ; Ohio & Mississippi R. Co. v. Middleton, 20 111! 629.

SECT. II.] GRANT V. BEARD. 1023

Such ratification relates back to aud incorporates the original con-
tract or transaction, so that, as between the parties, their rights and
interests are to be considered as arising at the time of the original act,
and not merely from the date of the ratification ; and a suit to enforce
the obligation assumed by the party who ratifies is, to all intents and
purposes, a suit founded upon the original act or contract, and not on
the act of ratification. Davis v. School District, before cited ; Low v.
Railroad, 40 N. H. '2Si ; Doggett v. Emerson, 3 Story, 737 ; Mason v.
Crosby, 1 Woodb. & M. 342 ; Clark's Executors v. Van Riemsdyk, 9
Cr. 153 ; Culver v. Ashley, 19 Pick. 301 ; Fors3'th v. Day, before cited.

Therefore the original consideration ajjplies to the ratification, thus
made equivalent to an original contract, and supports the implied prom-
ise upon which the present action is founded.

The ratification operates directl3', and not nierel}- as presumptive evi-
dence that the act was originally done by the authority- of the defend-
ants ; and therefore it is unnecessary to consider whether or not the
evidence tends to show an original authority. The subsequent assent
is, per se, a confirmation of the agent's act ; and there is no valid
distinction between a ratification of the agent's act and a direct and
original promise to pay for the services rendered by the plaintiflT.
Wherever there would have been a consideration for the original en-
gagement if no agent or party assuming to act as agent had inter-
vened, such original consideration is sufficient to sustain the act of
ratification.

In none of the cases cited is the subject of a new consideration, to
support the ratification, alluded to as necessary ; but the logical de-
duction from the principle that the ratification relates back to and
covers the original agreement, is wholly inconsistent with such a prop-
osition ; and the contrary doctrine is expressl}' held in numerous
cases. Commercial Bank of Buffalo v. Warren, 15 N. Y. Rep. 583,
and cases cited.

There was abundant evidence, in the present case, from which the
jury might have found that the defendants owned the wagons and re-
ceived a positive benefit from the repairs ; but such evidence and such
finding were wholh' unnecessary, because it is not material that the
party making the promise should receive a benefit from the other party's
act ; it is sufficient if an}- trouble, prejudice, expense, or inconvenience
accrued to the part}' to whom the promise is made. Metcalf on Con-
tracts, 163 ; 1 Parsons on Contracts, 431.

We are therefore of the opinion that the instruction of the court to
the jury ''that if they found that the defendants did not authorize
their father to make the contract as their agent, but afterwards
assented to what he had done, their assent would not make them liable
unless they owned the wagons at the time they were repaired, or re-
ceived some benefit from the repairs," was erroneous ; and for this
reason the verdict must be set aside, and a

Neiv trial granted.

1024 BROOK V. HOOK. [CHAP. X.

BROOK V. HOOK.

Exchequer. 1871.

[L. R. 6 Ex. 89.]

Declaration on a promissory note. Plea: traversing the making
of the note. Issue.

At the trial before Martin, B., at the Bristol Summer Assizes,
1870, the following facts were proved : In Juh', 1868, Richard
Jones, a brother-in-law of the defendant, applied to the plaintiff for
a loan of £50. The plaintiff declined to lend the money unless a
substantial name was given as security. Jones said that he tliought
the defendant would join him in a note, and one was soon afterwards
given to the plaintiff, purporting to be signed by Jones and the de-
fendant, which was renewed and eventually partly paid off by Jones.
On the 7th of November, 1869, there was a balance of £20 remaining
due, and on that day the plaintiff received by post from Jones the
note now sued on, which was in these terms: —

Yatton, Nov. 7, 1869. Three months after date we jointl}' and
severally promise to pay Mr. Brook, or his order, the sum of £28 for

value received.

Richard Hook.
Richard Jones.

On the 17th of December, 1869, whilst the note was still current,
the plaintiff saw the defendant, who denied his signature. The plain-
tiff then said that it must be a forgery by Jones, and that he would
consult a lawyer as to taking criminal proceedings against him. The
defendant replied that he would rather pay the money than that Jones
should be prosecuted, and, subsequently, at the plaintiff's instance,
signed the following memorandum, at the same time again denying
that he had ever signed, or given Jones authority to sign, the note : —

Memorandum ; that I hold myself responsible for a bill, dated
Nov. 7th, 1869, for twenty pounds, bearing my signature and Richard
Jones', in favor of Mr. Brook. Huntspill, Dec. 17th, 1869.

Richard Hook.

It was not disputed that the signature to the note was forged, or
that the defendant had, in fact, signed this memorandum. The
learned judge directed the jury that the plaintiff was entitled to the
verdict, if the defendant had signed the memorandum, the construc-
tion of the document being, in his judgment, a question for him, and
his opinion being that it amounted to a ratification of the contract
professedly made in the defendant's name on the face of the note. A
verdict was accordingly entered for the plaintiff. In Michaelmas
Term, 1870, a rule was obtained by the defendant, calling on the

SECT. II.] BROOK V. HOOK. 1025

plaintiff to show v;\\y there should not be a new trial, on the ground
that the verdict was against the evidence, and for misdirection in this,
that the learned judge directed the jury that the only question for
them was, whether the memorandum of the 17th of December was
signed b}' the defendant.

iLingdon, Q. C, Collins, and R. D. Bennett showed cause. ^

Lopes, Q. C, and Poole, in support of the rule.^

Cur. adv. rult.

Kelly, C. B.^ Upon this evidence it has been contended on behalf
of the plaintiff that this paper was a ratification of the making of the
note by the defendant, and, upon the principle omnis ratihahitio
retrotrahitur et mandato priori cequiparatnr, the jury were directed
to find that the note was the note of the defendant, and that the plain-
tiff was entitled to the verdict.

I am of opinion that this verdict cannot be sustained, and that the
learned judge sliould have directed a verdict for the defendant; or at
least, have left a question to the jurj' as to the real meaning and effect
of the memorandum and the conversation taken together ; and this,
first, upon the ground that this was no ratification at all, but an agree-
ment upon the part of the defendant to treat the note as his own, and
become liable upon it, in consideration that the plaintiff would forbear
to prosecute his brother-in-law Jones ; and that this agreement is
against public polic}' and void, as founded npon an illegal considera-
tion. vSecondly, the paper in question is no ratification, inasmuch as
the act done — that is, the signature to the note — is illegal and void ;
and that although a voidable act may be ratified b}' matter subsequent,
it is otherwise when an act is originally and in its inception void.

Man}' cases were cited to show that where one sued upon a bill or
note has declared or admitted that the signature is his own, and has
thereby altered the condition of the holder to whom the declaration or
admission has been made, he is estopped from denying his signature
npon an issue joined in an action upon the instrument. But here there
was no such declaration and no such admission ; on the contrary, the
defendant distinctly declared and protested that his alleged signature
was a forger}' ; and although in the paper signed by the defendant he
describes the bill as bearing his own signature and Jones', I am of
opinion that the true eflJect of the paper, taken together with the pre-
vious conversation, is, that the defendant declares to the plaintiff:
" If you will forbear to prosecute Jones for the forgery of my signa-
ture, I admit and will be bound by the admission, that the signature
is mine." This, therefore, was not a statement by the defendant that
the signature was his, and which, being believed by the plaintiflf", in-

^ In the course of this argument, Kelly, C. B., said : " The defendant could not
ratify au act which did not profess to be done for him or on his account." — Ed.

^ In the course of this argument, Channell, B., said: "The doctrine of estoppel
\& quite distinct from that of ratification, and is based on different premises." — Ed.

^ After stating the case. — Ed.

1026 BROOK V. HOOK. [CHAP. X.

cliiced hiiu to take the note, or in any way alter his condition ; but,
on the contrar}-, it amounted to the corrupt and illegal contract before
mentioned, and worked no estoppel precluding the defendant from
showing the truth, which was that the signature was a forgery, and
that the note was not his note.

In all the cases cited for the plaintiff the act ratified was an act
pretended to have been done for or under the authority of the party
sought to be charged ; and such would have been the case here, if
Jones had pretended to have had the authority of the defendant to put
his name to the note, and that he had signed the note for the defend-
ant accordingly, and had thus induced the plaintiff to take it. In that
case, although there had been no previous authority, it would have
been competent to the defendant to ratify the act, and the maxim
before mentioned would have applied. But here Jones had forged the
name of the defendant to the note, and pretended that the signature
was the defendant's signature ; and there is no instance to be found
in the books of such an act being held to have been ratified by a sub-
sequent recognition or statement. Again, in the cases cited, the act
done, though unauthorized at the time, was a civil act, and capable of
being made good by a subsequent re(;ognition or declaration ; but no
authority is to be found that an act which is itself a criminal offence
is capable of ratification. The decision at nisi prius of Mr. Justice
Crompton referred to in argument is inapplicable, it being uncertain
whether the plaintiff in that case knew that tlie alleged signature of
the defendant was forged, and there being no illegal contract in that
case to forbear to prosecute. The same observation ma}' be made
upon the case from Ireland cited upon the authorit}' of Mr. Justice
Burton. I am therefore of opinion that the rule must be made abso-
lute for a new trial, and that upon this evidence the jury ought to
have been directed to find a verdict for the defendant, or at all events
(which is enough for the purpose of this rule) that if any question
should have been left to the jury it ought to have been whether the
paper and the conversation taken together did not amount to the ille-
gal agreement above mentioned. My Brothers Channell and Pigott
concur in this judgment.^ Mule absolute.^

1 The two decisions mentioned in the above opinion are a nisi prius case stated in
Ashpitel V. Bryan, 3 B. «Sb S. 474, 492-493 (1863); and a case in the Queen's Bench
of Ireland, Wilkinson v. Stoney, I Jebb & S. 509 (1839).

Martin, B., delivered a dissenting opinion. — Ed.

•■2 Ace: Workman v. Wright, 33 Ohio St. 405 (1878); Shisler v. Vandike, 92 Pa.
447 (1880).

Contra: Greenfield Bank v. Crafts, 4 Allen, 447 (1862), where Dewey, J., for the
court, said : —

" But it is now urged on the part of the defendants, that these signatures were
incapable of such adoption or ratification.

" As to this objection, it is clear that it cannot be maintained upon the ground of the
form of the signatures merely. This form of signature, though not the more usual
manner of signing by an agent, does not prevent the person whose name is placed on
the note from being legally holden, upon proof that the signature was previously

SECT. II.] BROOK V. HOOK. 1027

authorized, or subsetjuently. adopted. Various similar cases will be found, where the
party has beeu charged, where the uame of the principal appears upon the note ac-
companied with no indications of the fact of its having been signed by another hand.
It was su in Watkins v. Vince, 2 Starli. K. 368, in Merrifield v. Parritt, 11 Cush. 591,
and Brigham v. I'eters, 1 Gray, 147. Wherever such signature by the hand of
another was duly authorized, and also where a note was thus executed under an
honest belief by the party signing the name that he was thus authorized, we appre-
hend that there can be no doubt that it would be competent, in the case first stated,
to maintain an action upon the -same, upon proof of the previous authority thus to
sign the name, or, in tlie latter, upon proving that the signature, although at the
time unauthorized, was subsequently adopted and ratified by the party whose name
appears as promisor. Nor is it necessary, to establish a ratification, that there has
been any previous agency created. An act wholly unauthorized may be made valid
by a subsequent ratification. This may be so, although the actor was an entire
stranger as to any business relations. Culver c. Ashley, 19 Pick. 301.

" The only question upon this part of the case is, whether a signature, made by an
unauthorized person under such circumstances as show that the party placing the
name on the note was thereby committing the crime of forgery, can be adopted and
ratified by any acts and admissions of the party whose name appears on the note,
however full, and intentionally made and designed to signify an adoption of the
signature. The defendants insist that it cannot, by such evidence as would in other
cases warrant the jury in finding an adoption ; and that nothing short of an estoppel,
having the element of actual damage from delay or postponement, occasioned by the
acts of the person whose name is borne upon the note, misleading the holder of it,
will have this effect. As to the person himself whose name is so signed, it is difficult
to perceive any sound reason for the proposed distinction, as to the effects of ratifying
an unauthorized act, in the two supposed cases.

" In the first case, the actor has no authority any more than in the la-^t. The con-
tract receives its whole validity from the ratification. It may be ratified, where there
was no pretence of agency. Tn the other case, the individual who presents the note
thus signed passes the same as a note signed by the promisor, either by his own
proper hand, or written by some one by his authority. It was clearly competent, if
duly authorized, thus to sign the note. It is, as it seems to us, equally competent for
the party, he knowing all the circumstances as to the signature and intending to
adopt the note, to ratify the same, and thus confirm what was originally an unau-
thorized and illegal act. We are supposing the case of a party acting with full
knowledge of the manner the note was signed, and the want of authority on tlie part
of the actor to sign his name, but who understandingly and unequivocally adopts fhe
signature, and assumes the note as his own. It is difficult to perceive why such adop-
tion should not bind the party whose name is placed on the note as promisor, as
effectually as if he had adopted the note when executed by one professing to be
authorized, and to act as an agent, as indicated by the form of the signature, but who
in fact had no authority.

"It is however urged that public policy forbids sanctioning a ratification of a forged
note, as it may have a tendency to stifle a prosecution for the criminal offence. It
would seem, however, that this must stand upon the general principles applicable to
other contracts, and is only to be defeated where the agreement was upon the under-
standing that if the signature was adopted the guilty party was not to be prosecuted
for the criminal offence." — Ed.

1028 STRASSER V. CONKLIN. [CHAP. X.

STRASSER y. CONKLIN.

Supreme Court of Wisconsin. 1882.

[54 Wis. 102.]

Appeal from the Circuit Court for Outagaraie Count}'.

The facts in this case are substantial!}' as follows : One Fisher sold
and conveyed to one Craney two lots in the village of Seymour, on
•which was a hotel. Craney gave Fisher his promissory notes (pre-
sumably for purchase money) for $2,300, and executed to Fisher a
mortgage on the lots to secure payment thereof. These securities are
dated February 26, 1876. At the same time Fisher assigned to Craney
two policies of insurance for $13,000 each, on the personal property
in such hotel ; and the policies, in case of loss, were made payable to
Fisher as his interest might appear. March 13, 1876, Fisher sold and
transferred the notes and mortgage of Craney to the plaintiff. April
1, 1876, Craney and wife conveyed the mortgaged premises to the
defendant. The consideration expressed in the deed is $4,000. It
contains the covenants usual in a warranty deed, with the following
limitation or exception to the covenants of seizin and against incum-
brances : "Except a mortgage thereon for the sum of $2,300, dated
February 26, 1876." At the same time Craney assigned to the de-
fendant both of said policies of insurance. About June 1st one of the
policies expired, and the defendant procured its renewal. Without
the direction of the defendant, the renewed policy also provided that
the loss, if any, should be payable to Fisher as his interest might ap-
pear. The defendant paid Craney $1,700 on account of the purchase
money, and it does not appear that he gave any note or written
acknowledgment for the residue thereof. Soon after the transactions
above stated, the hotel building and some or all of the insured prop-
erty was destroyed by fire. The loss was afterwards adjusted between
the defendant and the instu'ers at $795.27, and drafts for that amount,
payable to the defendant and Fisher, were forwarded to the agent of
the insurance companies at Appleton. Fisher had ceased to have any
interest in the insurance money, but plaintiff claimed the money by
virtue of the assignment to him of the Craney mortgage. Tlie defend-
ant claimed that the money belonged to him absolutely, and refused
to assign the policies to the plaintiff upon request of the latter. July
3, 1876, the plaintiff gave one Herman Erb, of Appleton, a power of
attorney authorizing him to collect and receive the money on said
policies. Erb thereupon assumed to act as the agent of the plaintiff
in respect to his whole business with the defendant, and entered into
an agreement with the latter on behalf of the plaintiff, to the effect
that the plaintiff should receive from the insurance agent $653.27 of
the insurance money, and from the defendant a conveyance of the
mortgaged premises in full payment and satisfaction of his claim

SECT. II.] STRASSER V. CONKLIN. 1029

against the defendant on the Crane}- mortgage. The plaintiff was
soon after fully informed of what Erb had done in his behalf, and the
terms of the settlement negotiated by him with the defendant. Having
such information, the plaintiff received the above amount of insurance
money from Erb, but. at the same time, denied his authority to make
the settlement, and refused to accept the conveyance of the mortgaged
premises which the defendant had duly executed and left with Erb.
The plaintiff has not offered to return such insurance money to the
defendant, but has applied it upon the Craney mortgage. This action
was brought to recover tlie balance of the mortgage debt of 82,300,
after deducting therefrom the insurance monej- received by the plain-
tiff. It is alleged in the complaint, and the testimony tends to prove,
not only that the defendant purchased the mortgaged premises subject
to the Craney mortgage, and that the amount of the mortgage debt
was deducted from the pricD agreed to be paid for the premises, but
also that he expressly agreed with Crane}-, by parol, to pa}- such debt.
On the other hand, the defendant denies in his answer and in his
testimony that he made an}- such agreement. He also alleges the
settlement with Erb, the payment to the plaintiff of the insurance
money, and the execution of the conveyance of the mortgaged prem-
ises to him, as an accord and satisfaction of the cause of action
stated in the complaint. On the foregoing facts, which appear from
the pleadings and proofs, the court directed the jury to find for the
defendant, and they did so. The plaintiff appealed from the judgment
entered pursuant to the verdict.

JBarnes & Goodland, for the appellant.

Collins c& Pierce^ for the respondent.

Lyon, J.^ No rule of law is more firmly established than the rule
that if one, with full knowledge of the facts, accepts the avails of an
unauthorized treaty made in his behalf by another, he thereby ratifies
such treaty, and is bound by its terms and stipulations as fully as he
would be had he negotiated it himself. Also, a ratification of part of
an unauthorized transaction of an agent is a confirmation of the whole.
If authorities are desired to propositions so plain as these, they abound
in the decisions of this court, many of which are cited in the briefs of
counsel. Under the above rules it is entirely immaterial whether Erb
was or was not authorized to make the settlement with the defendant.
If not authorized, the plaintiff, by receiving the money with full knowl-
edge of the terms of settlement, ratified and confirmed what he did,
and cannot now be heard to allege his agent's want of authority.

It will not do to say that the plaintiff was entitled to the money he
received, and might receive and retain it as his own without regard to
the settlement. That was the very point of the controversy between
the parties. Manifestly each claimed the money in good faith, and
we cannot determine from the record before us which was entitled to

' After stating the case. — Ed.

1030 DEMPSEY V. CHAMBERS. [CHAP. X.

it ; and it is immaterial whether one or the other was so entitled, there
bein<y a real controvers}- between them on that question. It was
therefore a very proper case for negotiation and compromise between
them ; and under the circumstances they must both be held bound by
the settlement. The evidence of ratification is conclusive, and there
was nothing for the jur}* to determine in that behalf. Hence, the
court properly directed tlie jury to find for the defendant.

The foregoing views dispose of the case, and render it unnecessary
to determine the question, which was very ably argued by counsel,
whether a parol agreement by the defendant to pay the mortgage debt
(if he so agreed) is within the statute of frauds, and therefore invalid.
We leave that question undetermined.

By the court. — The judgment of the circuit court is affirmed.*

DEMPSEY V. CHAMBERS.
Supreme Judicial Court of Massachusetts. 1891.

[15-t Mass. 330.]

Tort. Trial in the Superior Court, before Thompson, J., who
allowed the following bill of exceptions : —

" This was an action to recover for an injur}' to the plaintiff's build-
ing, the injury consisting in the breaking of a light of plate glass in
the front of said building. The plaintiff claimed that the glass was
broken by the carelessness of the defendant's servant. It appeared at
the trial, that the glass was broken by one McCuUock, while he was
engaged in delivering a load of coal to the plaintiff, which had been
ordered b}- the plaintiff of the defendant, who was a dealer in coal.
The defendant claimed, and offered evidence tending to show, that at
the time of the deliver^' of the coal McCullock was not his servant or
in his employ, and undertook to deliver the coal without his direction
or knowledge. It appeared that McCullock was a member of the de-
fendant's household, accustomed to be in and about the defendant's
coal-yard, and that he took the coal from the defendant's yard and on
one of the defendant's wagons. It also appeared at the trial, that,
subsequent to the delivery of the coal and with a full knowledge of the
accident and of the delivery of the coal by McCullock, the defendant
presented a bill for the coal to the plaintiff, and claimed that tlie plain-
tiff owed him for the same. The court found as a fact that the glass
was broken by the carelessness of McCullock in delivering the coal,
and that at the time of the deliver}- of the coal McCullock was not in
fact the agent or servant of the defendant, or in his emplo}-, but found
that the delivery of the coal b}- McCullock was ratified by the defend-

J See also Jones v. National Building Association, 94 Pa. 215 (1880); Beidman «
Goodell, .56 Iowa, 592 (1881). — Ed.

SECT. II.] DEMPSEY V. CHAMBERS. 1031

ant, and that such ratification made McCuUock in law the agent and
servant of the defendant in the delivery of the coal. And the court
ruled that the defendant, by his ratification of the delivery of the coal
by McCullock, became responsible for his negligence in the delivery of
the coal. To this ruling the defendant excepted, and now excepts,
and prays that his exceptions may be allowed.

" The case was tried by the court without a jury, and the finding of
the court was for the plaintiff."

The case was submitted on briefs in November, 1890, and after-
wards, in September, 1891, was submitted on the same briefs to all
the judges except Field, C. J.

W. S. Knox, for the defendant.

J. P. Sweeney and II. li. Dotr, for the plaintiff.

Holmes, J. This is an action of tort to recover damages for the
breaking of a plate-glass window. The glass was broken by the neg-
ligence of one McCullock, while delivering some coal which had been
ordered of the defendant by the plaintiff. It is found as a fact that
McCullock was not the defendant's servant when he broke the window,
but that the " delivery of the coal by McCullock was ratified by the
defendant, and that such ratification made McCullock in law the agent
and servant of the defendant in the delivery of the coal." On this
finding the court ruled "that the defendant, hy his ratification of the
deliverj- of the coal by McCullock became responsible for his negligence
in the delivery of the coal." The defendant excepted to this ruling,
and to nothing else. We must assume that the finding was warranted
b}' the evidence, a majority of the court being of opinion that the bill
of exceptions does not purport to set forth all the evidence on which
the finding was made. Therefore, the only question before us is as to
the correctness of the ruling just stated.

If we were contriving a new code to-da}', we might hesitate to say
that a man could make himself a party to a bare tort, in an}' case,
merel}^ by assenting to it after it had been committed. But we are not
at liberty to refuse to carrj' out to its consequences any principle which
we believe to have been part of the common law, simplj' because the
grounds of policy on which it must be justified seem to us to be hard
to find, and probabh" to have belonged to a different state of society.

It is hard to explain why a master is liable to the extent that he is
for the negligent acts of one who at the time really is his servant, act-
ing within the general scope of his employment. Probabl}' master and
servant are " fained to be all one person " by a fiction which is an echo
of the patrla potestas and of the English frankpledge. B^-ington v.
Simpson, 134 Mass. 169, 170; Fitz. Abr. Corone, pi. 428. Possibly
the doctrine of ratification is another aspect of the same tradition.
The requirement that the act should be done in the name of the ratify-
ing party looks that wa}'. New England Dredging Co. v. Rockport
Granite Co., 149 Mass. 381, 382 ; Fulled- & Trimwoil's Case, 2 Leon. 215,
216 ; Sext. Dec. 5. 12, De Reg. Jur., Reg. 9 ; D. 43. 26. 13 ; D. 43. 16-
1, § 14, gloss. See also cases next cited.

1032 DEMPSEY V. CHAMBERS. [CHAP. X.

The earliest instances of liability by way of ratification in the Eng-
lish law, so far as we have noticed, were where a man retained
property acquired through the wrongful act of another. Y. B. 30 Ed. I.
1, 128 (Rolls ed.) ; 38 Lib. Ass. 223, pi. 9 ; s. c. 38 Ed. III. 18, En-
gettement de Garde. See Plowd. 8 ad Jin., 27, 31 ; Bract, fol. 158 b,
159 a, 171 b; 12 Ed. IV. 9, pi. 23. But in these cases the defend-
ant's assent was treated as relating back to the original act, and at an
earl3' date the doctrine of relation was carried so far as to hold that,
where a trespass would have been justified if it had been done b}- the
authorit}' b}' which it purported to have been done, a subsequent rati-
fication might justify it also. Y. B. 7 Hen. IV. 34, pi. 1. This decision
is qualified in Fitz. Abr. Bayllye, pi. 4, and doubted in Bro. Abr.
Trespass, pi. 86 ; but it has been followed or approved so continuously,
and in so many later cases, that it would be hard to deny that the com-
mon law was as there stated by Chief Justice Gascoigne. Godbolt,
109, 110, pi. 129; s. c. 2 Leon. 196, pi. 246; Hull v. Pickersgill,
1 Brod. & Bing. 282; Muskett v. Druramond, 10 B. & C. 153, 157;
Buron v. Denman, 2 Exch. 167, 188 ; Secretary of State in Council of
India v. Kamachee Boye Sahaba, 13 Moore, P. C. 22, 86 ; Cheetham
V. Mayor of Manchester, L. R. 10 C. P. 249 ; Wiggins v. United
States', 3 Ct. of CI. 412.

If we assume that an alleged principal by adopting an act which was
unlawful when done can make it lawful, it follows that he adopts it at
his peril, and is liable if it should turn out that his previous command
would not have justified the act. It never has been doubted that a
man's subsequent agreement to a trespass done in his name and for
his benefit amounts to a command so far as to make him answerable.
The ratihabitio mandato comjxiratur of the Roman lawyers and the
earlier cases (D. 46. 3. 12, § 4 ; D. 43. 16. 1, § 14 : Y. B. 30 Ed. I.,
128) has been changed to the dogma cequiparatur ever since the da3'S
of Lord Coke. 4 Inst. 317. See Bro. Abr. Trespass, pi. 113; Co.
Lit. 207 a; Wingate's Maxims, 124; Com. Dig. Trespass, C. 1;
Eastern Counties Railway- v. Broom, 6 Exch. 314, 326, 327 ; and cases
hereafter cited.

Doubts have been expressed, which we need not consider, whether
this doctrine applied to the case of a bare personal tort. Adams v.
Freeman, 9 Johns. 117, 118. Anderson and Warberton, J.J., in
Bishop V. Montague, Cro. Eliz. 824. If a man assaulted another in
the street out of his own head, it would seem rather strong to say that.,
if he merel}' called himself my servant, and I afterwards assented,
without more, our mere words would make me a part}' to the assault,
although in such cases the canon law excommunicated the principal if
tlie assault was upon a clerk. Sext. Dec. 5. 11. 23. Perhaps the
application of the doctrine would be avoided on the ground that the
facts did not show an act done for the defendant's benefit. Wilson v.
Barker, 1 Nev. &. Man. 409 ; s. c. 4 B. & Ad. 614 et seq. ; Smith v.
Lozo, 42 Mich. 6. As in other cases it has been on the ground that

SECT. II.] DE.MPSEY V. CHAMBEKS. 1033

tliey did not amount to such a ratification as was necessary. Tucker
V. Jerris, 75 Maine, 184 ; Hjxle v. Cooper, 26 Vt. 552.

But tlie language generally used by judges and text-writers, and
sucli decisions as we liave been able to find, is broad enough to cover a
case like the pre&ent when the ratification is established. Perley v.
Georgetown. 7 Gray, 4G4 ; Bishop v. Montague, Cro. Eliz. 824; San-
derson V. Baker, 2 Bl. 832 ; s. c. 3 Wils. 309 ; Barker v. Braham, 2 Bl.
866, 868 ; s. c. 3 Wils. 368 ; Badkin v. Powell, Cowper, 476, 479 ;
Wilson V. Tumman, 6 Man. & G. 236, 242 ; Lewis v. Read, 13
M. & W. 834; Buron v. Dennaan, 2 Exch. 167, 188; Bird v.
Brown, 4 Exch. 786, 799 ; Eastern Counties Railway v. Broom,
6 Exch. 314, 326, 327 ; Roe v. Birkenhead, Lancashire & Cheshire
Junction Railway, 7 Exch. 36, 41 ; Ancona v. Marks, 7 H. & N. 686,
695 ; Condit v. Baldwin, 21 N. Y. 219, 225 ; Exum v. Brister, 35
Miss. 391 ; Galveston, Harrislnirg & San Antonio Railway v. Donahoe,
56 Texas, 162; Murray i\ Lovejo\', 2 Cliff. 191, 195 ; see Lovejoy v.
Murray, 3 Wall. 1, 9 ; Story on Agency-, §§ 455, 456.

The question remains whether the ratification is established. As we
understand the bill of exceptions, IMcCiillock took on himself to de-
liver the defendant's coal for his benefit and as his servant, and the
defendant afterwards assented to McCullock's assumption. The ratifi-
cation was not directed specifically to McCullock's trespass, and that
act was not for the defendant's benefit if taken by itself, but it was so
connected with McCullock's emploj-ment that the defendant would
have been liable as master if McCuUock really had been his servant
when delivering the coal. We have found hardly anything in the
books dealing with the precise case, but we are of opinion that con-
sistenc}' with the whole course of authorit}- requires us to hold that the
defendant's ratification of the emploj-ment established the relation of
master and servant from the beginning, with all its incidents, including
the anomalous liability for his negligent acts. See Coomes v.
Houghton, 102 Mass. 211, 213,214; Cooley, Torts, 128, 129. The
ratification goes to the relation, and establishes it ab initio. The re-
lation existing, the master is answerable for torts which he has not
ratified specificalh', just as he is for those which he has not commanded,
and as he maj* be for those which he has expressly forbidden. In
Gibson's Case, Lane, 90, it was agreed that, if strangers as servants
to Gibson, but without his precedent appointment, had seized goods bj'
color of his office and afterwards had misused the goods, and Gibson
ratified the seizure, he thereb}' became a trespasser ab initio, although
not privy to the misusing which made him so. And this proposition is
stated as law in Com. Dig. Trespass, C. 1. Elder v. Bemis, 2 Met.
599, 605. In Coomes v. Houghton, 102 Mass. 211, the alleged ser-
vant did not profess to act as servant to the defendant, and the
decision was that a subsequent payment for his work by tlie defendant
would not make him one. For these reasons, in the opinion of a
majorit}- of the court, the exceptions must be overruled.

Exceptions overruled.

1034 EIGHT d. FISHER V. CUTHELL. [CHAP. X.

SECTION III

The Possibility of Ratification as affected hy the Rights of Persons
other than the Quasi-Principal.

RIGHT, d. FISHER, NASH, and HYRONS, v. CUTHELL.
King's Bench. 1804.

[5 East, -^91.]

This was an ejectment to recover possession of twelve certain mes-
suages and tlie appurtenances in the parish of St. Botolph, Aldgate, in
the count}' of Middlesex. The first count was on the demise of Fisher,
Nash, and Hyrons ; the second on the demise of P^isher and Nash onl}-,
which latter it was admitted could not be supported. The premises
consisted of houses, formerly the property of one Moses Adams, and
by him demised by a lease dated 20th of October, 1789, to one WiUiam
Cuthell (since deceased, whose representative the defendant is), for a
term of twent3'-one years, commencing from Michaelmas then last past.
In which lease was contained a proviso that in case either landlord or
tenant, or their respective heirs, executors, etc., should be desirous at
the expiration of the first seven or fourteen years of the term to deter-
mine the lease, and should give six months' previous " notice in writing
under his or their respective hand or hands to or for the other or others,
or for the heirs, executors, etc., of the other or others of them, then the
term should cease." Adams afterwards died, having made his will,
wherein he appointed Fisher, Nash, and Hyrons his executors,^ who
proved the will. Six months previous to the expiration of the first
fourteen years (Hyrons, one of the executors, being at that time
abroad), Fisher and Nash b\' a notice in writing dated 23d of March,
1803, reciting the indenture of lease of the premises to W. Cuthell for
twenty-one years, and the proviso above mentioned ; and reciting further
that Moses Adams had in his lifetime made his will and appointed
Fisher, Nash, and Hyrons his executors, and that the}- had proved the
will and taken on themselves the execution thereof, and were still
executors of the same, proceeded thus : " Now the said W. Fisher and
S. Nash do on the part and behalf of themselves and the said J. Hyrons
hereby give you (the defendant) notice that they are desirous and do
intend at the expiration of the first fourteen years of the said term of
twent^'-one years to determine the said lease. And they do further for
themselves and the said J. Hyrons require and demand of you the pos-
session of all the premises at the expiration of the first fourteen years,
etc., and give 3-ou notice to quit and deliver up the possession thereof

^ It was admitted that the messuages were freehold, and that the executors who
had a power to sell took as joint-teuants in fee. — Rep.

<5ECT. III.] RIGHT (1. FISHER V. CUTHELL. 1035

at that time accordinglj-." Signed, " W. Fisher and S. Nash." At the
trial of this case before Lord Ellenborough, C. J., at the last West-
minster Sittings, the plaintiff proved his case by producing the original
lease, with the proviso ; the death of Adams ; his will, whereby the
lessors of the plaintiff were appointed his executors; the possession of
the defendant under W. Cuthell, deceased ; and the above-mentioned
written notice to quit, signed by two only of the executors, the other
being abroad ; but no authority was proved from the latter to the other
two, to enable them on his behalf to determine the lease, further than
as it might be presumed by law from the circumstances of the notice
itself, and the ejectment having been brought in the name of the three.
It was objected, however, by the defendant's counsel that no such pre-
sumption could be made, and that as the executors were joint-tenants
under the will, the two could not bind the third b\- such an act as this,
without his concurrent assent at the time, and that no subsequent rati-
fication of the third, even if sucli appeared (wliich was denied), would
be sufficient to bind the defendant. His Lordship being of this opinion
nonsuited the plaintiff. It was moved on a former day in this term to
set aside the nonsuit, on the ground that the notice itself, purporting to
be given by the authority of all three of the executors, must be taken
to have been so until the contrary were proved. That it need not have
been signed b}^ either of them ; for if delivered by a common agent or
steward, as by their authority, it would have been sufficient, without
proving specifically his warrant from each of them individually. But
that if there were an}' doubt of the authority, the act of the two was
recognized by the third, in his permitting the ejectment to be brought
in his name without any complaint made on his behalf to the court,
that his name had been used without his assent.

Gibbs and E-^pinasse now showed cause.

Erskine and Marryat^ in support of the rule.

Lord Ellenborough, C. J. This was a notice to quit given to the
tenant under a proviso in a lease for twent3'-one years, that in ease
either part}' wished to put an end to the term at the expiration of the
first seven or fourteen years, six months' previous notice in writing
should be given under his or their respective hands. Now this is a
notice signed by two only of three joint-tenants, under whom the
defendant held, purporting however to be given on behalf of themselves
and the other. It is a notice to defeat an estate ; the person therefore
to whom it is given ought to be assured at the time he receives it, and
when he is to act upon it, that if he deliver up possession at the end of
the six months, he will be acquitted of all further claims in respect of
the remainder of the term. But if two only of the three joined in the
notice, how could the defendant be assured of this? How could he be
assured that tlie third might not disavow the notice afterwards, and
claim the defendant still as a tenant to him? But it is said, that
Hyrons suffering the ejectment to be brought in his name is a ratifica-
tion of the others' authoritv. But a ratification given afterwards will

1036 EIGHT d. FISHEK V. CUTHELL. [CHAP. X.

not do in this case; because the tenant was entitled to such a notice as
he could act upon with certainty' at the time it was given ; and he was
not bound to submit himself to the hazard whether the third co-executor
chose to ratif)" the act of his companions or not, before the six months
elapsed. Then the rule of law is relied on to show that the two joint-
tenants who signed the notice had authority to bind the other in this
case ; and it is asked how the act appears to be prejudicial to the third?
But it is not necessary for the defendant to show that it would be preju-
dicial to Hyrons. The rule of law is, that every act of one joint-tenant
which is for the benefit of his co-joint-tenant shall bind him. And it is
a condition on the part of those who set it up and would avail themselves
of it as binding, to show that it was beneficial to Hyrons. For the
two joint-tenants had no right to bind the third in his absence, unless
the act done appear to have been for the benefit of all ; and how does
that appear? Subsequent acts cannot be brought in aid. It must be
done under a competent authority at the time. And in order to satisfy
the condition on which the lease was to be defeated, the notice ought
to have been given under the respective hands of the three executors.

Grose, J. The tenant who took the entire lease of the whole was
not bound to accept notice to quit a part onlv, but such notice only as
was obligatory upon all the joint-tenants. Here there was a proviso in
the lease, that in case either party wished to put an end to it at the
expiration of the first seven or fourteen years, it should be lawful so to
do upon giving the other six months' previous notice in writing under his
or their respective hands. That was not done in this instance ; for the
notice was onl}- signed by two out of three of the persons interested,
and therefore the tenant was not bound by it.

Lawrence, J. I think there is great weight in the argument of the
defendant's counsel, that for the notice to be good it oirght to be bind-
ing on all the parties concerned at the time when it was given, and not
to depend for its validit}'. in part, upon any subsequent recognition of
one of them ; because the tenant is to act upon the notice at the time,
and therefore it should be such as he may act upon with security. But
if it be to depend upon a subsequent ratification of one of the joint-
tenants, landlords, whether or not it is to be binding upon him, the
condition and situation of the tenant nmst remain doubtful till the time
of such ratification. Now the intention of the parties to the lease was,
that the tenant should not be obliged to quit without being apprised of
it for a certain time, that he might have an opportunity to provide him-
self with another dwelling ; but if a ratification will do, instead of six
months, he might not know certainl}- for as man}- days or hours whether
he must quit or not. The rule of law, that oinnis ratihahitio retro
troJdtur, etc., seems only applicable to cases where the conduct of the
parties on whom it is to operate, not being referable to an\- agreement,
cannot in the mean time depend on whether there be a subsequent rati-
fication. But here the intermediate acts of the tenant referable to the
terms of his lease are to be affected by relation.

SECT. III.] HAGEDOKN V. OLIVEHSOX. 1037

Le Blanc, J. I cannot satisfy myself that the nonsuit vva- wrong.
Hei-e is a power of determining a lease by the notice to quit of three
persons ; and two only give the notice : then I must be satisfied that
they had authority to bind the third, before I can say that their notice
was good. And when I see that by the terms of the proviso the notice is
to be given under their respective hands, I cannot say that a notice
under the hands of two only is good. Besides, the tenant is to act
upon this notice at tlie time, and he must be satisfied that it is such
a notice as will bind all the three. No evidence was offered to show
that the two acted by the authority of the third ; and if the defendant
had 3'ielded to it, and could not have proved the concurrence of
Hyrons to it, the latter might afterwards have disavowed tlie act of his
co-joint-tenants, and have come upon the defendant for his rent.

Rule discharged ^

HAGEDORN v. 0LIVP:RS0N.

King's Bench. 1814.

[2 M. Sr S. 485.]

Assumpsit on a policy of assurance tried before Lord Ellenborough,
C. J., at the London sittings after Michaelmas Term, when a verdict
was found for the plaintiff for £200, the amount of the defendant's
subscription, subject to the opinion of the court on the following case:

The polic}' was effected by the plaintiff'^ on or about the 2d of August,
1810, as well in his own name as for and in the name and names of all
and ever}' other person and persons to whom the same doth, ma}', or
shall appertain, etc., in the usual form, upon the ship '' Fiesco," valued
at £2.300 at and from Gluckstadt, and any port and ports in the river
Elbe, to an}' port or ports in the United Kingdom, with liberty to carry
simulated papers, etc., sail under any flag, etc. The declaration averred
the interest to be in F. S. Schroeder, and a loss by capture. At the time
of effecting the policy Schroeder was and is a subject of the King of
Denmark, then and now at war with Great Britain. In order to legalize
the voyage the plaintiff had procured a license, which was granted to him,
by the name of J. P. H. Hagedorn of London, on behalf of himself or
other British or neutral merchants, permitting a vessel bearing any flag
except the French to proceed with a cargo from within certain specified
limits, within which Gluckstadt was, to any port of this kingdom north
of Dover, etc. The ship was loaded at Gluckstadt in July, 1810, with
a cargo on British and neutral account, and sailed from thence under
Danish colors for London on the 26th of that month, and was captured

1 Ace. Pickard v. Perley, 45 N. H. 188 (1864).
See Doe d. Mann v. Walters, 10 B. & C. 626 (1830).
Compare Chapman v. Kcane, 3 Ad. & E. 193 (1835).— Ed.

2 It was stated upon the arp^ument, and so taken, that the plaintiff gave the order
to the broker to effect the insurance. — Rep.

1038 HAGEDOEN V. OLIVERSOX. [CHAP. X.

by enemies, carried into a port of Holland, and condemned. The policy
was effected for the benefit of Schroeder, but no letter or order was
proved from Schroeder before the loss, but a letter from him to the
[)laintiff, dated the 26thof Jul}-, 1812, before the commencement of this
action, was produced, wherein he adopted the insurance in the follow-
ing terms : —

" I may now, I hope, expect that you have effected a final settle-
ment with the underwriters per Fiesco, and request you to lay out
the amount for me in coffee."

No other evidence was given of the connection of Schroeder with this
policy. The question for the opinion of the court is whether the plain-
tiff is entitled to recover ; if the court shall be of that opinion, the verdict
is to stand ; if not, a nonsuit is to be entered.

Taddi/, for the plaintiff.

Scarlett, contra.

Tacldi/, in repl}-.^

Lord Ellexborough, C. J. The difficulty in this case arises from
the situation of Schroeder, because he might, b}' refusing to adopt the
policy in case the ship had arrived, have got clear of the premium, for
if the plaintiff had brought an action against him to recover it, I do not
see how he could have succeeded. That constitutes something of an
anomaly, because in one event, namely-, that of a loss, he might secure
himself, and nevertheless might have avoided the payment of the pre-
mium, in the other event of the ship's arrival, by declaring that he
chose to stand his own insurer. But I do not think that consideration
governs the case now before us between this plaintiff and the under-
writer. The plaintiff had a right to effect an insurance, on the chance
of its being adopted, for the benefit of all those to whom it might
appertain, which are the words of the policy. He might insure for
those who were actuall}- interested, and possibly for those who might be
interested. Schroeder was interested, and might become privy to the
benefit of this insurance by subsequent adoption, according to Lucena v.
Craufurd and Routh v. Thompson. He has adopted it, and now it is
made a question, whether he can become piivy to the benefit of it.
It appears to me upon those authorities that he may, and may make use
of the name of the person at the head of the policy, as the person who
had given the order to effect the insurance, which will satisfy the stat.
28 G. III. c. 56. It seems to me, therefore, that this action is maintain-
able for the benefit of Schroeder, who was interested at the time, and
has become privy by adoption.

Le Blanc, J. The difficulty thrown in the way of the plaintiff has
been this, that if Schroeder, in the event of the ship's arrival, had
chosen to repudiate instead of adopt the contract, he might have done
so, and there would have been no means of coming upon him for the
premium. But this policy was effected for the benefit of all persons

^ Citiug Lucena v. Craufurd, 1 Taunt. 325, s. 0. 2 B. & P N. R. 269 ; Routh v
Thompson, 13 East, 274. — Ed.

SECT. III.] HAGEDORN V. OLIVEESON. 1039

interested, and Scbroeder was a person interested ; and I take it,
after the ship sailed on the voyage insured, the plaintiff was bound b}'
the insurance, and could not have recovered back the premium from
the underwriter, by averring that this was a policy without interest ; the
answer would have been, Schroeder is interested, and he maj- elect to
adopt the insurance. 1 therefore conceive the underwriter would have
had a right to retain the premium. Then Routh v. Thompson is, I think,
an authority to show that Schroeder being interested might subse-
quently adopt the insurance made by the plaintiff. There the Crown
adopted it after a loss ; and the distinction taken in that case, that the
party making the insurance was appointed by the captors who had no
insurable interest, and therefore, that he stood in the relation of agent
on the part of the Crown, whose agents the captors were, does not, I
think, make any difference. Here the plaintiff was not unconnected
with the insurance ; he obtained a license and made insurance for
the benefit of the owners, tliough without communicating with them.
Schroeder, who is an owner, afterwards adopted it. That case is an
authority to show that he might afterwards adopt it. This, it must be
remembered, is a question between the plaintiff and the underwriter,
and not Schroeder and the underwriter ; and unless we saw that the
underwriter would not have been entitled to retain the premium, we
cannot say that the plaintiff is not entitled to his contract, unless it
could be shown that this is a mere gaming polic}'.

Bayley, J. I think this is a case in which the defendant ought to
pa}', and the plaintiff ought to receive for a loss under the policj'.
A loss has happened, upon which the defendant undertook to pa}', and
if the premium could not have been recovered back from the defendant,
there is not any circumstance here which should exonerate him from
liability. T tliink the plaintiff never could have recovered back the
premium from the underwriter, because of the uncertainty whether
Schroeder would adopt the assurance, in respect of which the under-
writer would have incurred the risk. While the contract was in Jieri,
there was not any disposition on the plaintiff's part to have tlie policy
vacated, and if there had been, it would have been an answer to him,
that Schroeder might have adopted it. Then comes the question
whether Schroeder is entitled to take that benefit of this insurance.
It is stated that it was effected for his benefit, therefore it was intended
to cover his specific interest at the time. Schroeder had an interest at
the time, and although there was not any specific communication at the
time, yet as Schroeder was connected in the concern, it was reasonable
for the plaintiff to expect that Schroeder would adopt an act which
could be done with no other view than for his benefit. Schroeder must
be considered as under a moral if not a legal obligation to adopt it
although the ship arrived. Being under that obligation in all events,
he thinks that he is warranted in adopting it even after a loss, and has
adopted it. The case of Routli /•. Thomi)son shows that if a policy be
effected witli reference to the benefit of a person interested, an adoption
of it by such person after the loss will be sufficient.

1040 BIRD '*^- BROWN. [chap. X.

Dampikk, J. The plaintiff placed himself in an awkward situation
by advancing his money for the premiums, upon the expectation that
Schroeder would adopt his act, which Schroeder might have refused to
do in the event of the ship's arrival ; and if he had, I do not see that
the plaintiff could have recovered back the premiums. The question
then is whether Schroeder had an interest in tlie policy. He was owner
of the ship, and the policy was effected for his benefit ; that seems to me
to give him an interest. If then he had an interest, his subsequent
adoption will be good. Routh v. Thompson is a full and clear authority
to that point; there the agency was only a constructive agenc}', and it
does not appear to me to afford any distinction because the insurance
did not come within the scope of his agencv. Tlierefore it seems to me
to govern this case ; there is no distinction in reason though there may
be a difference. All the averments in this declaration are certainly fully
proved, and therefore the plaintiff is entitled.

Judgment for the plaintiff.^

BIRD AND OTHERS, ASSIGNEES OF CARNE & TELO, Bankrupts, v.
brown and others.

Exchequer. 1850,

[4 Exch. 786.]

This was an action of trover. In the first count of the declaration,
the plaintiffs declared on tlie possession of the bankrupts before their
bankruptcy ; and in the second, on their own possession as assignees ;
and in both, the conversion was laid after the bankruptcy'. The defend-

1 See Stillwell o. Staples, 19 N. Y. 401 (1859).

In Williams v. North China Ins. Co., 1 C. P. D. 757 (C. A. 1876), Cockburn, C. J.,
said .• " The ratification was not until after the loss had occurred and was known to
the principals. Tlie existing authorities certainly show that when an insurance is
effected without authority by one person on another's behalf, the principal may ratify
the insurance even after the loss is known. Mr. Benjamin asked us, as a Court of
Appeal, to review those authorities. His contention was that there could only be a
ratification when the principal could himself make the same contract as that ratified.
Admitting that for general purposes this rule may be good, the authorities which we
are asked to overrule are much too strong and of too long standing to be got over.
When a rule has been acceepted as the law with regard to marine insurance for nearly
a century, I do not think we ought to overrule it lightly, because insurances have
probably been effected on the basis of the law that has so become settled, and mischief
might arise from the disturbance of it. Moreover, I think that this is a legitimate
exception from the general rule, because the case is not within the principle of that
rule. Where an agent effects an insurance subject to ratification, the loss insured
against is very likely to happen before ratification, and it must be taken that the insur-
ance so effected involves that possibility as the basis of the contract. It seems to me
that, both according to authority and the principles of justice, a ratification may be
made in such a case." — Ed.

SECT. III.] BIRD V. BROWN. 1041

ants pleaded first, not guilty. Secondly, to the first count, a denial of
the possession of the bankrupts. Thirdly, to the same, a denial of the
goods being the property of the plaintiffs as assignees. Fourtlily, to
the last count, a denial of the possession of the plaintiffs as assignees ;
on which pleas issues were joined. At the trial before Cresswell, J.,
at the Liverpool Summer Assizes 1848, a verdict was found for the
plaintiffs, damages £10,142 76-. Ad.^ subject to a case.^

Coiding argued for the plaintiffs.

Cronipton {Heath with him), for the defendants.

Cur. adv. vidt.

RoLFE, B. This was an action of trover to recover the value of
several cargoes of corn and other goods, sent from New York to this
country'.

It was tried at Liverpool, and a verdict was found for the plaintiffs,
subject to our o[)inion on a case reserved. The case was argued before
us last term, when the material facts appeared to be as follows : Carne
& Telo, merchants at Liverpool, early in 184G sent out extensive orders
to Charles Illins, a merchant at New York, to purchase for them corn,
flour, tallow, and other articles.

In pursuance of these orders, Illins made purchases to the amount of
about £14,000, and shipped the goods by five vessels bound to Liver-
pool, namely, two vessels each called the Ashhurton, and three
others, called respectively the Europe, the New Yorl\ and the Hot-
tinguer. These were all general vessels, and the goods were con-
signed to Messrs. Carne & Telo.

The shipments were all made in the month of March, 1846. The
goods shipped by the Ilottinguer were received b\- Carne & Telo
before the 7th of April, 1846, on which day they stopped payment.
Illins, pursuant to directions from Carne & Telo, had drawn bills foj
the goods, partly on Carne & Telo themselves, partly on a firm ot
Richards, Little & Co,, with whom Carne & "Telo had dealings. The
defendants, who are merchants at Liverpool, and who also have a house
of business at New York, purcliascd there several of the bills so drawn
by Illins, to the amount of about £7,000 ; and those bills were remitted
in regular course to them at Liverpool. The bills were all drawn at
sixty days' sight, and were dated, some on the 28th of March, the rest
on the 30th.

On the 8th of May a fiat in bankruptcy issued against Carne & Telo,
and they were duly found bankrupts, and the plaintiffs are their as-
signees. The Europe arrived at Liverpool on tlie 3rd of INIay, one
of the AsJdnirtons on the 5th, and the other on the 6th, and the
Neir Tori- on the 9th ; and immediately on the arrival of each of
these ships, and while the transitus of the goods on board continued,
the defendants, on behalf of Illins, gave notice to tlie master and con-

' The reporter's statement of the facts has heen omitted. — Ed.
6(5

1042 BIKD V. BROWN. [tHAP. X,

signees of each ship, claiming to stop the goods hi transitu. The
defendants were not agents of Illins, nor had the}' received from him
an)- authority to make this stoppage. On the 11th of May the plaintiff
Bird, as ollicial assignee of Carne & Telo, made a formal demand of the
goods from the master and consignee of each of the four ships, at the
same time tendering the freight. The goods were then still on board
undelivered, but the master and consignee refused to deliver the goods
to the plaintiffs, and on the same da}*, delivered the whole of them to
the defendants.

On the next day the plaintiff Bird made a formal demand of the
goods from the defendants, but they refused to deliver up the same,
claiming title under the stoppage in transitu. On the 28th of April,
Illins heard at New York that Carne & Telo had stopped payment,
and on the next da}' he executed a power of attorney to Joseph Hub-
back of Liverpool, authorizing him to stop the goods in transitu. This
was received by Hubback on the 13th of May, and he on that day
adopted and confirmed the previous stoppage b}' the defendants. Illins
afterwards, and long before the commencement of this action, adopted
and ratified all which had been done both by Hubback and the de-
fendants.

The only point for our decision is, whether the title of Carne & Telo
had been divested by the stoppage in transitu ; for if not, then un-
doubtedly, the goods belonged to the plaintiffs as their assignees ; and
as there was a clear conversion b}- the defendants, the plaintiffs would
be entitled to recover. Mr. Crompton, for the defendants, made two
points: first, that there was a good stoppage on the 13th, under the
power to Hubback; and, secondly, if that be not so, still that the sub-
sequent ratification by Illins made the previous stoppages by the defend-
ants good.

As to the first point, we are of tlie opinion that there could be no
valid stoppage in transitu, after the formal demand of the goods by
Bird on the 11th of Ma}', and the subsequent delivery of tliem to the
defendants. The goods had then arrived at Liverpool, and were ready
to be delivered to the parties entitled. Bird, on behalf of the assignees,
demanded the goods, and tendered tlie amount due for the freight. As-
suming that there had been no previous stoppage in transitu, the masters
of the several ships were thereupon bound to deliver up the goods to
Bird, as representing Carne & Telo, and they could not, by their
wrongful detainer of them and delivering them over to other parties,
prolong the transitus, and so extend the period during which stoppage
might be made. The transitus was at an end when the goods had
reached the port of destination, and when the consignees, having de-
manded the goods and tendered the amount of the freight, would have
taken them into their possession but for a wrongful delivery of them to
other parties.

On this part of the case we never entertained any doubt. The other
point, namely, whether the several stoppages by the defendants, before

SECT. III.] BIRD V. BROWN. 1043

the 11th of May, without an}- previous authorit}- from Illins, were made
good by his subsequent ratification of what had been done, appeared to
us one of more nicety ; but on full consideration, we are of opinion
that here too the defendants must fail. In the first place, the power of
attorne}' to Hubback, and his subsequent confirmation of the acts of the
defendants, may be laid out of our consideration. The authorit}- to
Hubback was no doubt executed b}' Illins while the goods were in
transitu ; but that is not material, unless the stoppage itself took place
pending the transitus ,' and, so far as Hubback is concerned, that cer-
tainly was not the case, for he did not receive his authority nor attempt
to act in the matter till the 13th, that is, not till the da}- after the con-
version complained of in this action. It is true that he then, so far as
he lawfully could, adopted and ratified the acts of the defendants, but
this was afterwards, and before the commencement of this action, done
b}' Illins himself; and so if such ratification is good, there is no neces-
sit}' for relying on the ratification of Hubback.

This, therefore, brings us to the real question, which is, whether the
ratification by Illins, after a conversion by the defendants, can have the
effect of altering retrospectiveh' the ownership of the goods, so as to
prevent the plaintiffs from saying that the goods were theirs at the
time of the conversion, which, if no subsequent ratification had oc-
curred, certainly were theirs at that time, and would have so continued.
We are of opinion that the ratification b\- Illins had no such effect.
The doctrine, Omnis rotihahitioretrotrahitur et priori mandato cequi-
parahir, is one intelligible in principle, and eas}- in its application, when
applied to cases of contract. If A. B., unauthorized b}- me, makes a
contract on my behalf with J. S., which I afterwards recognize and
adopt, there is no difficulty in dealing with it as having been originall}'
made by m}* authority. J. S. entered into the contract on the under-
standing that he was dealing with me, and when I afterwards agreed to
admit that such was the case, J. S. is precisel}" in the condition in
which he meant to be ; or, if he did not believe A. B. to be acting for
me, his condition is not altered bv my adoption of the agency, for he
may sue A. B. as principal, at his option, and has the same equities
against me, if I sue, which he would have had against A. B.

In cases of tort, there is more difficulty. If A. B., professing to act
b}* my authority, does that which prima fade amounts to a trespass,
and I afterwards assent to and adopt his act, there he is treated as hav-
ing from the beginning acted b}- my authority, and I become a trespas-
ser, unless I can justify the act, which is to be deemed as having been
done by my previous sanction. So far there is no difficult}- in applying
the doctrine of ratification even in cases of tort. The party ratif} ing
becomes as it were a trespasser by estoppel ; he cannot complain that
he is deemed to have authorized that which he admits himself to have
authorized.

But the authorities go much further, and show that in some cases
where an act whic-Ii, if unanthoiized. would amount to a trespass, has
been done in the name and on behalf of another, but without previous

1044 DODGE V. HOPKINS. [CHAP. X.

autlioiitj, the subsequent ratification may enable the party on whose
behalf the act was done, to take advantage of it and to treat it as hav
ing been done b}' his direction. But this doctrine must be taken with
the qualification, tliat tlie act of ratification must take place at a time,
and under circumstances, when the ratifying party might himself have
lawfully done the act which he ratifies. Thus in Lord Audlej-'s case.
Cro. Eliz. 561 ; Moore, 457; Poph. 17G, nam. Lord Awdeley's case, a
fine with proclamation was levied of certain land, and a stranger within
five years afterwards, in the name of him wlio had right, entered to
avoid the fine. After the five j-ears, and not before, the party who had
the right to the land ratified and confirmed tlie act of the stranger.
This was held to be inoperative ; though such ratification within the
five years would probabl}' have been good. Now the principle of this
case, which is reported in many books, and is cited with approbation
by Lord Coke, in Margaret Podger's case, 9 Rep. 104 a, appears to
us to govern the present. There the entr}', to be good, must have been
made within the five years ; it was made within that time, but till
ratified it was merely the act of a stranger, and so had no operation
against the fine. By the ratification, it became the act of the part}' in
whose name it was made ; but that was not till after the five years.
He could not be deemed to have made an entr}' till he ratified the pre-
vious entry, and he did not ratifj' until it was too late to do so. In
the present case, tbe stoppage could only be made during the transitus.
During that period the defendants, without authority from Illins, made
the stoppage. After the transitus was ended, but not before, Illins
ratified what the defendants had done. From that time the stoppage
was the act of Illins, but it was then too late for him to stop. The
goods had already- become the propert}^ of the plaintiffs, free from all
right of stoppage.

We are therefore of opinion, that there must be judgment for the
plaintiffs. Judgment for tlve plaintiffs?-

DODGE y. HOPKINS.
Supreme Court of Wisconsin. 1861.

[14 Wis. 630.]

Appeal from the Circuit Court for Dane County.

Action commenced, Februar}- 25, 1860, to recover two instalments,
with interest, alleged to be due on a land contract. The complaint
alleges that on the 1st of Maj', 1857, at INIadison, in Dane Count}-,
the plaintiff, b}* his duly authorized agent and attorne}', W. F. Cool-
baugh, entered into a written contract with the defendant, under their

1 Ace: Wood v. McCain, 7 Ala. 800 (1845) ; Taylor v. Robinson, 14 Cal. 396 (1859) ;
Pollock V. Cohen, 32 Ohio St. 514 (1877) ; Lyell v. Kennedy, 18 Q. B. 1). 796 (C. A.
1887) ; s. c. reversed on another point, 14 App. Gas. 437 (H. L. 1889). — Ed.

SECT. III.] DODGE V. HOPKINS. 1045

seals, by which the defendant agreed to pay the plaintiff $1880, viz.,
$470 at the sealing and deliveiy of said agreement (the receipt of
which is therein acknowledged), and the remainder in three equal an-
nual instalments, with interest, &e., which payments were to be made
to the plaintiff, his agent or attorney, at the office of Williamson, Cat-
lin, & Barwise, in Madison, and were to appl}- as the purchase money
of lots 8 and 9, block 62, in said city of Madison ; that b}- said agree-
ment the plaintiff bound himself, his heirs, &c., that on payment of
said suui of $1880, with interest, at the times and in the manner above
specified, he would, on demand thereof, cause to be executed and de-
livered to the defendant a good and sufficient deed of the premises,
free of all incumbrances except certain taxes, which the defendant
agreed to pay ; that the plaintiff had always been read^- to perform the
contract on his part; and that the defendant had made default in the
payment of the instalments due on the 1st of May in the years 1858
and 1859 respectiveh', for the amount of which judgment was claimed.
The defendant answered hy a general denial.^ . . . On the trial the
plaintiff offered in evidence the contract mentioned in the complaint,
which was signed "A. C. Dodge, by W. F. Coolbaugli, Att}-.," with a
seal attached to said signature, and also signed and sealed by the de-
fendant. The plaintiff at the same time offered in evidence a sealed
instrument, purporting to have been executed on the 6th of August,
1856, at Madrid, in the kingdom of Spain, by the plaintiff, Augustus
C. Dodge, and his wife, Clara Ann Dodge, constituting William F.
Coolbaugh their attorney for the sale and conveyance of certain lands.
There was annexed to this instrument a certificate of its acknowledg-
ment by the plaintiff and his wife, before the Secretar}' of Legation of
the United States at Madrid, dated on the 9th of August, 1856, and
also a certificate of its acknowledgment by the plaintiff alone, before a
notary public in this State, dated July 23, 1859. The provisions of
this power of attorne}' are sufficientl}- slated in the opinion of tliis
court. Tiie defendant objected to the introduction in evidence of the
contract and power of attorney. "1. Because the execution of the
contract was not proven. 2. Because the power of attorne}' did not
authorize the attorney to sell the individual lands of A. C. Dodge, or
to execute a contract in the name of the plaintiff alone. 3. Because
the authority of Coolbaugh to make the contract was not shown."
The court overruled the objection. After reading the contract and
power of attorney, and presenting a computation of the amount due,
the plaintiff rested. The defendant moved for a nonsuit on the ground
that the power of attorney did not authorize Coolbaugh to make said
contract, and that the facts proven did not constitute a cause of action,
which motion was overruled. The defendant then rested, and asked
the court to instruct the jury " that the deliver}- of the power of attor-
ney to Coolbaugh, and the time of such deliver}-, were questions of fact

I Statements as to au application for leave to file a supplemental answer have been
uiiiitted. — Ei>.

1046 DODGE V. HOPKINS. [CHAP. X.

for the jury to find ; and that in the absence of proofs as to the time of
deliveiy, the presumption was that it was delivered at the time it was
acknowledged." This instruction the court refused, but instructed the
jur}' that in the absence of proof the presumption was that the power
of attorney was delivered to the agent, Coolbaugh, at the time it bears
date. Verdict and juchjinent for the plaintiff .

J. C. ITopkins, for appellant.

Abbott, Gregory, & Pinney, for respondent.

Dixon, C. J.^ Of the questions arising upon the trial, the first is
■whether the agent, Coolbaugh, was authorized b}' the letter of attor-
ney offered in evidence to sell the lands of which the plaintiff was sole
owjier. We think, npon the facts of the case as now presented, that
he was not. His agency was special, and the authority conferred dis-
tinctly stated. It was a joint letter, being executed by the plaintiff
and Clara Ann, his wife. The business to be transacted was that in
which the}' were jointly" concerned. The agent was to sell and convey
the lots and outlets of which the}' were possessed in the cit}' of Madi-
son, — more particularly those which were conveyed to them by James
Duane Dot}', as trustee of the Four Lake Company, and Moses M.
Strong, as attorney' of the late Stevens J. Mason, for the numbers and
description of which reference was made to the records of the deeds in
the county of Dane. He was to execute and deliver for them, and
in their names and behalf, all necessary deeds and other instruments
in writing. This was the substance of the authority given. No refer-
ence was made to the separate property of either of the parties ; and,
if the}' had any, it cannot be inferred that they intended to authorize
Coolbaugh to dispose of it. The rule of law is well settled that the
authority of a special agent must be strictly pursued, and if it is not,
the principal will not be bound. The authorities on this subject are
collected and reviewed by Chief Justice Savage, in Rossiter v. Rossiter,
8 Wend. 494. It seems to us too obvious for argument that upon the
face of the instrument the agent had no power to sell the plaintiff's
separate estate. We are to dispose of the question as if the plaintiff
were here resisting instead of endeavoring to avail himself of the au-
thority exercised. If the positions of the parties were reversed, — the
plaintiff repudiating the contract as unauthorized, and the defendant
seeking a specific performance, — it would hardly be seriously con-
tended that the letter of attorney alone would bind him. Reference
was made to the records in the office of the register. An examination
of the conveyances referred to might reveal the fact that the title of the
lots was vested solely in the plaintiff, and that there was no joint estate
to which the letter of attorney could be applied, which would place
matters in a very different attitude. It might then be very reasonably
urged that Mrs. Dodge joined in the letter of attorney for the purpose
of releasing her right of dower in the estate of her husband. Unaided

1 After holding that there was uo error in refusing to receive the supplemental
answer. — Ed.

SECT. III.] DODGE V. HOPKINS. 1047

by extrinsic evidence, we cannot assume that there was no joint estate
to which the authority could be applied, or depart from the strict lan-
guage of the instrument.

We are next to ascertain the effect of this want of authority upon
the rights of the defendant. It is very clear, in the present condition
of the case, that the plaintiff was not bound b}' the contract, and that
he was at liberty to repudiate it at an}- time before it had actually re-
ceived his sanction. Was the defendant bound? And if he was not,
could the plaintiff, by his sole act of ratification, make the contract ob-
ligatory upon him ? We answer both these questions in the negative.
The covenants were mutual, — those of the defendant for the pa3'ment
of the mone}- being in consideration of that of the plaintiff for the con-
veyance of the lands. The intention of the parties was that the}- should
be mutually bound ; that each should execute the instrument so that
the other could set it up as a binding contract against him, at law as
well as in equity, from tbe moment of its execution. In such cases it
is well settled, both on principle and authorit}-, that if either part}- neg-
lects or refuses to bind himself, the instrument is void for want of
mutuality, and the party who is not bound cannot avail himself of it as
obligatory upon the other. Townsend v. Corning, 23 Wend. 435, and
Same u. Hubbard, 4 Hill, 351, and cases there cited. The same au-
thorities also show that where the instrument is thus void in its incep-
tion, no subsequent act of the party, who has neglected to execute it,
can render it obligatory u|)on the party who did execute without his
assent. The opinion of Judge Bronson, in the first-named case, is a
conclusive answer to all arguments to be drawn from the subsequent
ratification of the party who was not originally bound. In that case,
as in this, the vendors had failed to bind themselves by the agreement.
He says : " It would be most extraordinary if the vendors could wait
and speculate upon the market, and then abandon or set up the con-
tract as their own interests might dictate. But without any reference
to prices, and whether the delay was long or short, if this was not the
deed of the vendee at the time it was signed by himself and Baldwin
(the agent), it is impossible that the vendors, by any subsequent act
of their own without his assent, could make it his deed. There is, I
think, no principle in the law which will sanction such a doctrine." The
only point in which the facts in that case differ materially from those
here presented, is that no part of the purchase money was advanced to
the agent. But that circumstance cannot vary the application of the
principle. The payment of the money to the agent did not affect the
validity of the contract, or make it binding upon the plaintiff. He was
at liberty to reject the money, and his acceptance of it was an act of
ratification with which the defendant was in no way connected, and
which, although it might bind him, imposed no obligation upon the
defendant until he actually assented to it. It required the assent of
both parties to give the contract any vitality or force.

I am well aware that there are dicta and observations to be found in

1048 DODGE V. HOPKINS. [CHAP. X.

the books •which, if taken literall}', would overthrow the doctrine of the
cases to which I have referred. It is said, in Lawrence v. Taylor, 5
Hill, 113, that "such adoptive authority relates back to the time of
the transaction, and is deemed in law the same to all purposes as if it
had been given before." And in Newton v. Bronson, 3 Kern. 594, the
court say : "•That a subsequent ratification is equally eflectual as an
original authority is well settled." Such expressions are, no doubt, of
frequent occurrence ; and although they displaj' too much carelessness
in the use of language, yet if they are understood as applicable only to
the cases in which they occur, they may be considered as a coriect
statement of the law. The inaccuracy consists in not properly distin-
guishing between those cases where the subsequent act of ratification
is put forth as the foundation of a right in favor of the party who has
ratified, and those where it is made the basis of a demand against him.
There is a broad and manifest diflference between a case in which a
partj' seeks to avail himself, b}' subsequent assent, of the unauthorized
act of his own agent, in order to enforce a claim against a third person,
and the case of a party acquiring an inchoate right against a principal,
by an unauthorized act of his agent, to which validity is afterwards
given by the assent or recognition of the principal. Paley on Agenc}',
192, note. The principal in such case ma}', by his subsequent assent,
bind himself; but if the contract be executory, he cannot bind the
otiier part}'. The latter may, if he choose, avail himself of such assent
against the principal, which, if he does, the contract, by virtue of such
mutual ratification, becomes mutuall}' obligatory. There are many
cases where the acts of parties, though unavailable for their own ben-
efit, may be used against them. It is upon this obvious distinction, J
apprehend, that the decisions which I have cited are to be sustained.
Lawrence v. Taylor and Newton v. Bronson were both actions in which
the adverse part}' claimed rights through the agency of individuals
whose acts had been subsequently ratified. And the authorities cited
in support of the proposition laid down in the last case (4 Wend. 219 ;
1 Pick. 372 ; 3 Hill, 552 ; 5 Id. 137 ; 9 Cranch, 153, and 5 Wheat. 241)
will, when examined, be found to have been cases where the subsequent
assent was employed against the persons who had given it and taken
the benefit of the contract.^ . . .

No original authority to the agent making the contract having been
shown, and no evidence offered on the trial of such ratification as bound
the defendant, it follows that the judgment must be reversed, and a new
trial awarded. Ordered accordingly.^

1 Here followed passages holding that, under the Wisconsin Statute of Frauds, a
contract for the purchase of land does not hind the vendee, unless signed by the vendor
or by his lawfully authorized agent. — Ed.

■■^ Ace: Atlee v. Bartholomew, 69 Wis. 43 (1887).

See Andrews v. JFAna Life Ins. Co., 92 N. Y. 596, 604 (1883) ; McCliutock v. South
Penn Oil Co., 146 Pa. 144 (1892).

There are comments on the principal case in 5 Am. St. Rep. 109; 24 Am. L. Rev
580; 2.5 Am. L. Rev. 74; and 9 Harv. Law Rev. 60. — Ed.

SECT. III. J WALTER V. JAMES. 1049

WALTER V. JAMES.

EXCHEQUKR. 1871.
[L. R. 6 Ex. 124.]

Action on an attorney's bill, amounting to £63 lis. 3d. The defend-
ant paid into court £3 17s. .Sc/., and to the residue pleaded payment.

The cause was tried before Mellor, J., at the Gloucestershire Summer
Assizes, 1870. It appeared at the trial that the plaintiff had a claim
against the defendant for professional services ; that Southall, acting
as the defendant's attorney, had been concerned in negotiation with
the plaintiff in respect of this claim, and had induced him to accept
£60 in discharge of it ; that Southall had been instructed b\- defendant
to pa}- that sum to plaintiff, but that before paying it those instructions
had been countermanded, and he had ceased to act as defendant's at-
torney ; that, nevertheless, considering himself under a moral obliga-
tion to the plaintiff to see him paid, he subsequenth- did pa}- the £60,
and paid it, as he stated in evidence, in discharge of plaintiff's claim
upon defendant ; but that afterwards, and before any act of defendant
assenting to or adopting the payment, he requested plaintiff to return
him the money, which was accordingly done. It was left in some doubt
on the evidence whether Southall did or did not inform plaintiff, at the
time of paying him, that he had ceased to act as defendant's attorney.
No evidence was given of any adoption of the payment by defendant
before plea.

The learned judge ruled that the defendant could take advantage of
the payment by Southall, and a verdict was entered for the defendant,
with leave to the plaintiff to move to enter the verdict for him, the
court to have power to draw inferences of fact. A rule having been
obtained accordingly,

Cace {Hxiddleston, Q. C, with him), showed cause.

Henry James., Q. C, and Griffits., in support of the rule.

Cur. adv. vult.

Kellt, C. B. [after stating the facts of the case, proceeded :] South-
all, therefore, in paying the debt appeared to act as the defendant's
agent ; but it turned out afterwards that, although he had originally
been authorized by the defendant to come to an arrangement with the
plaintiff, and to make this pa}ment, that authority had been revoked
before the payment was made. lie did not, however, coumiunicate to
the plaintiff that he had no authority ; on the contrary, he professed
to act for tlie defendant, and the plaintiff believed him to be so acting,
and received the sum paid in full satisfaction of his debt. But when
the plaintiff found that the money had been paid without the defend-
ant's authority, he returned the money to Southall. And now the

1050 WALTER V. JAMES. [CHAP. X,

question is, whether the defendant can b}- his plea of payment adopt
and ratify the act of Southall, although before action that act had, by
arrangement between the plaintiff and Southall, been undone.

Now, the law is clear, that where one makes a pa3ment in the name
and on behalf of another without authoritj', it is competent for the
debtor to ratify' the pa^-ment ; and there seems to be no doubt on the
authorities that he can ratify after action by placing the plea of pa}'-
ment on the record. Prima facie^ therefore, we have here a ratiQca-
tion of the payment by the defendant's plea ; but whether the payment
was then capable of ratification depends on whether previously it was
competent to the plaintiff and Southall, apart from the defendant, to
cancel what had taken place between them. I am of opinion that it
was competent to them to undo what they had done. The evidence
shows that the plaintiff received the money in satisfaction under the
mistaken idea that Southall had authority from the defendant to pa}'
him. This was a mistake in fact, on discovering which he was, I think,
entitled to return the monej-, and apply to his debtor for payment. If
he had insisted on keeping it, the defendant might at any moment have
repudiated the act of Southall, and Southall would then have been able
to recover it from the plaintiff as money received for Southall's use. I
am, therefore, of opinion tliat the plaintiff, who originally accepted
this money under an entire misapprehension, was justified in returning
it, the position of the parties not having been in the meantime in any
way altered, and that the defendant's plea of payment fails. The rule
must accordingfy be made absolute.

Martin, B. I am of the same opinion. The rule which I conceive
to be the correct one ma}' be stated as follows. When a payment is
not made by way of gift for the benefit of the debtor, but by an agent
who intended that he should be reimbursed by the debtor, but who had
not the debtor's authority to pay, it is competent for the creditor and
the person paying to rescind the transaction at any time before the
debtor has affirmed the payment, and repay the money, and thereupon
the payment is at an end, and the debtor again responsible. This
being, in my judgment, the true rule, the plaintiff in this case was
entitled to recover.

Kelly, C. B. My brother Cleasby concurs in the judgment of the
court. Rule absolute.'^

1 See Stillwell v. Staples, 19 N. Y. 401, 406 (1859). —Ed.

SECT. III.] WHITING V. MASSACHUSETTS MUTUAL LIFE INS. CO. 1051

WHITING, Administrator, v. MASSACHUSETTS MUTUAL
LIFE INSURANCE COMPANY.

Supreme Judicial Court of Massachusetts. 1880.

[129 Mass. 240.]

Colt, J. It is expressly provided in the policy of life insurance
upon wliich this action is l)rouy:ht, that it " shall not take effect until
the advance premium hereon shall have been paid during the lifetime
of the person whose life is hereby insured."

It appeared at the trial, that, in February, Henry L. Fairfield, the
plaintiff's intestate, made application for insurance in the defendant
company ; and that, in the early part of May following, the policy in
suit was left at Fairfield's place of business, by an agent of the com-
pany, who by letter requested payment of the premium " if the polic}-
was correct and satisfactory." This request was repeated by letter
dated May 21, addressed to Fairfield, who was then at home, having
arrived there in ill health on the 18th of the same month. He died of
this illness on May 27. The letter of the 21st was opened by his
sister, who, without communication with or direction from him, caused
the advance premium to be paid to the compan}-, by a check signed b}'
a member of the firm in which Fairfield was a partner. Fairfield died
without knowledge of this payment.

Upon this state of facts, it is plain that no contract of insurance
existed between the parties at the time of the death of the plaintiff's
intestate. The possession of the policy, without a waiver, on the part
of the company, of the condition upon the performance of which it
■was to take effect, does not, on the facts disclosed, show a deliver}' of
it in completion of the contract, or furnish any evidence that the minds
of the parties had met. It is not enough that the form of the police-
had been approved, for it was still optional with Fairfield whether he
would bv paj'ment make it a binding contract. If he declined or neg-
lected to pa}-, the compan}- would have no claim for the premium
against him, or against his estate, because the risk never attached. A
payment bv a stranger, made without the knowledge or consent of the
assured, though made with his mone}-, would not bind him or the com-
panv ; and the monev, so wrongfullv appropriated, could be recovered
back b}- him or by his administrator. Hoyt v. Mutual Benefit Ins. Co.,
98 Mass. 539 ; Markey v. Mutual Benefit Ins. Co., 103 Mass. 78 ; Badger
V. American Ins. Co., 103 Mass. 244 ; Thayer r. Middlesex Ins. Co., 10
Pick. 326 ; Piedmont & Arlington Ins. Co.V Ewing. 92 U. S. 377.

After the death of Fairfield, the administrator of his estate, and the
widow, to whom the policy was made payable, joined in the proofs of
loss, and the administrator, for the benefit of the widow, brought this
action against the company. But these proceedings do not amount to
such ratification of the unauthorized payment by the sister as will give
validity to the polic}'. The difHculty is, that there was no contract

1052 WHITING V. MASSACHUSETTS MUTUAL LIFE INS. CO. [CHAP. X.

existing at the time of the death to be ratified. The pa3Tnerit of the
premium was not the payment by another of a debt due from the
intestate, which the administrator, without affecting the rights of the
compan}-, would have power to ratify ; and to say that the adminis-
trator maj' now do it, so as to bind the company, would be to say that
a policy of life insurance ma}' be made to take effect as a contract by
an act of ratification by the administrator after the death of the person
whose life is thereby insured ; or, as was said b}' Mr. Justice Miller in
Piedmont & Arlington Ins. Co. v. Ewing, above cited, "to affirm that
one part}' to a negotiation can dela}' his consent to the terms of the
contract until the changes of fortune enable him to reap all the benefits,
and throw all the losses on the other side, and then, for the first time,
do what was necessary on his part to make the contract obligator}-."

It is laid down, in general rules governing the relation of principal
and agent, that no unauthorized act of the latter can be made valid by
subsequent ratification to the prejudice of third persons without their
consent; and that no ratification is valid unless the principal at the
time of ratifying the act has power to confer the authority for such act.
Sturtevant v. Robinson, 18 Pick. 175; Bird v. Brown, 4 Exch. 786;
McCracken v. San Francisco, 16 Cal. 591, 624; Story on Agencv,
§§ 245, 246.

It is contended that there is some authority for the proposition that
the payment of a renewal premium by a stranger to the contract after
it becomes due will be sufficient to prevent the lapsing of a policy on
the life of one who dies after it becomes due and before it is paid ;
although the policy contains the usual condition requiring its payment
in order to continue the contract in force. But the case of Howell v.
Knickerbocker Ins. Co., 44 N. Y. 276, cited by the plaintiff, was
decided expressly on the ground that there had been a waiver by the
company of a prompt payment of the annual premium, so that the
contract of insurance was in force at the time of the death. See also
Pritchard v. Merchants' & Tradesmen's Assurance Society, 3 C. B.
(N. S.) 622. Whatever may be the law as applicable to the payments
of annual premiums under a policy which has once attached, we are of
of opinion that the contract cannot be originally created without the
consent of the assured.

Under the law of marine insurance, as laid down in the cases cited
by the plaintiff,^ it is said that when a vessel is insured by a part-owner
for the benefit of the other part-owners, without their previous author-
ity, the latter may ratify the act, after knowledge of the loss. But
that is because in those cases a valid contract of insurance is at once
created by the part-owner by payment of the premium, or by a promise
to pay upon which the policy is issued.

The judge at the trial refused to rule, as requested by the defendant,
that the payment of the premium by the sister, Miss "Whiting, would

^ The plaintiff's counsel cited on this point Ha2:edorn v. Oliverson, 2 M. & S. 485',
Routh V. Thompson, 13 East, 274; Barlow v. Leckie, 4 J. B. Moore, 8; Finney v.
Fairhaven Ins Co., 5 Met. 192. — Rep.

SECT. III.] BOLTON PARTNERS V. LAMBERT. 1053

not be a payment by Fairfield which would make tlie defendant liable
on the polic}' ; and for tliis refusal, the entry must be

ExceiAions sustained.

G. Wells, for the defendant.

G. M. Stearns, for the plaintiff.

BOLTON PARTNERS v. LAMBERT.

Chancery Division. 1888.

Court of Appp:al. 1889.

[41 Ch. D. 295.]

The plaintiffs, Bolton Partners (Limited), were a limited compan}-,
incorporated under the Companies Acts, and were owners of a factoiy
and hereditaments at Lavenham, Suffolk, known as the Lavenham
Sugar Works, for the residue of a term of ten years from the 25th of
March, 1884.

On the 8th of December, 188G, the defendant, A. J. Lambert, wrote
to P. Scratchley, who was then acting as managing director of the
company in the absence of the chairman, a letter in which he said : —

" Re Lavenham Sugar Works.

" I beg to make you an offer for the above-mentioned works, and at
the same time allow me to call your attention to the following facts,
which are matters too important to be overlooked on either side."

He then stated several particulars in which expense must be incurred
b}' the purchaser, and proceeded as follows : —

"As it is absolutely necessary to commence the new works almost
immediately, I propose to take the factory over from the 25th of March,
1887, possession to be given on the 1st of January, 1887, to enable
me to get the necessary alterations completed, and also to get the new
machinery fixed. Taking into consideration all the facts which I have
brought under your notice, I think a fair annual rental to offer 3-ou for
the use of the factory (including depreciation of the buildings, plant,
and machinery) would be £3,500, the lease to be the remainder of your
term, and subject to the conditions described therein. But as the wall
requires repairs, and the machinery, which is now dismantled, will
require to be restarted, an allowance of £500 should be made from the
first quarter's rent, thus reducing the rent for the first year to £3,000,
which should be paid on the usual quarter days."

Scratchley wrote to the defendant on the 9th of December acknowl-
edging the receipt of his letter, and saying that he would refer the
matter to the directors.

Scratchle}- was a member of the works committee, which was appointed
by the board of directors. On the 13th of December, 1886, a meeting
of the works committee was held at which it was resolved that the
defendant's oflTer should be accepted, and that a letter should be written

1054 BOLTON PARTNERS V. LAMBERT. [CHAP. X.

to him accordingly, and that the company's solicitor should be instructed
to prepare the necessary documents. It was admitted that the works
committee had no power to accept the defendant's offer, or to bind the
company by a sale of its property. On the same day, Scratchley wrote
to the defendant a letter in which he informed him that the directorfi
accepted the offer contained in his letter of the 8th of December, and
that the company's solicitor had been instructed to prepare the neces-
sar}' documents.

On the 17th of December the plaintiffs' solicitor sent the defendant
a draft agreement containing certain stipulations not mentioned in the
defendant's offer, and in particular a stipulation as to a guarantee for
rent. To these the defendant objected. After some correspondence
the defendant, on the 13th of January, 1887, wrote to the plaintiffs
withdrawing his offer on the ground that he had been misled by the
statements that had been made to him as to the value of the property.

On the 17th of Januar}-, 1887, the writ in this action was issued
by direction of the board of directors. The plaintiffs claimed specific
performance of the agreement contained in the letters before stated.

On the 28th of January the board of directors held a meeting at
which they confirmed the minutes of the meeting of the works committee
of the 13th of December, 1886 ; and Scratchley's letter of the same
date was also read and confirmed.

The defendant denied that there had been any complete contract ;
and contended that after the defendant had repudiated his offer
it was too late for the company to ratify Scratchley's acceptance.
He also alleged that he had been induced to make the offer by
misrepresentation.

The action came on before Mr. Justice Kekewich on the 19 th of
December, 1888.

Warmington, Q. C, and Chadioyck Healey, for the plaintiffs.

Brice^ Q. C, and Illbton, for the defendant.

Kekewich, J.-^ The doctrine of ratification is this, that when a prin-
cipal on whose behalf a contract has been made, though it may be made
in the first instance without his authority, adopts it and ratifies it, then,
whether the contract is one which is for his benefit and which he is
enforcing, or which is sought to be enforced against him, the ratification
is referred to the date of the original contract, and the contract becomes
as from its inception as binding on him as if he had been originally a
party. That doctrine, combined with one in respect of mutuality, the
limits of which I have already stated, seems to me to get rid entirely of
the third objection on the ground of ultra vires, and to dispose of this case.
There must, therefore, I tliink, be judgment for specific performance. . . .

From this judgment the defendant appealed.
Brice, Q. C, and Rlhton^ for the appellant.^

1 At the beginning and at the end of this opinion are omitted passages not dealing
with ratification. — Ed.

- In reprinting this argument, passages not dealing with ratification have been
omitted. — Ed

SECT. III.] BOLTON PARTNERS V. LAMBERT. 1055

An offer may be withdrawn witbout formal notice at any time before
acceptance. Dickinson v. Dodds, 2 Ch. D. 463 ; and after withdrawal
any ratification comes too late. Thus, in Lyell v. Kenned}', 18 Q. B. D.
796, 814, it was held that ratification after the Statute of Limitations
had run came too late. [Lopes, L. J,, referred to Walter v. James,
Law Rep. 6 Ex. 124.] That case is in our favor; after the contract
was rescinded ratification was too late. Stoppage in transitu bj' a
person having no authority cannot be ratified after the goods have got
into the hands of third parties. Bird v. Brown, 4 Ex. 786. Li Brewer
V. Broadwood, 22 Ch. D. 105, the principle was acted on that ratifica-
tion must be before the contract is broken ofl^, and so in Lee v. Soaraes,
36 W. R., 884. [Cotton, L. J. That case comes to this: something
is necessary to make a good title. The purchaser says get it within a
certain time, if not, I withdraw. That is not like a ca.se of a sale by an
agent without authority.] If the part}' repudiates, then the negotiation
is at an end, and no subsequent confirmation by the principal can
revive it.

Warmington^ Q. C, and ChadwycJc Healey, for the plaintiflTs, were
not called on to argue the question whether there was a complete con-
tract between Scratchley and the defendant, or whether there had been
misrepresentation.

With respect to the question of ratification, the maxim omnis ratiha-
hitio retrotrahitur et mandato equiparatur is applicable to this case.
It is only a matter of evidence whether or not the agent had authority
to make the contract. If the authority is proved, it makes no difference
at what time it is proved. Brook v. Hook, Law Rep. 6 Ex. 89. The
defendant argues that if a man makes a contract with an agent, there is
a locus poenitenticB until the contract is confirmed by the principal ; but
there is no trace of any such doctrine in the law. He is bound, though
the principal may not be. It may seem unfair upon liim, but it is the
law. The cases on marine insurance are strong instances of the rule
being acted on in hard cases. Hagedorn v. Oliverson, 2 M. & S. 485 ;
Ancona v. Marks, 7 H. cfe X. 686 ; Maclean r. Dunn, 4 Bing. 722. The
only exceptions to the rule are : (1) where a vested estate is divested ;
(2) when there has been forgery ; (3) where the ratification is after the
time when the act could be done. In the present case, the contract
being a good binding contract there was no power of withdrawing fi'om
it, which would have been in fact a rescission.

Cotton, L. J.^ But then it is said that on the 13th of January, 1887,
the defendant entirely withdrew the offer he had made. Of course the
withdrawal could not be effective, if it were made after the contract
had become complete. As soon as an offer has been accepted the
contract is complete. But it is said that there could be a withdrawal
by the defendant on the 13th of January on this ground, that the offer
of the defendant liad been acce[)ted by Scratchley, a director of the
plaintiflE" company, who was not authorized to bind the company by

1 After discu.ssing matters foreign to ratification. — Ed.

1056 BOLTON PARTNERS V. LAMBERT. [CIIAP. X.

acceptance of the offer, and therefore that until the company ratified
Scratchley's act there was no accei^tance on behalf of the conii)any
binding on the company, and therefore the defendant could withdraw
his offer. Is that so? The rule as to ratification by a principal of acts
done b}' an assumed agent is that the ratification is thrown back to the
date of the act done, and that the agent is put in the same position as
if he had had authorit}' to do the act at the time the act was done by
him. Various cases have been referred to as laying down this principle,
but there is no case exactly like the present one. The case of Hage-
dorn r. Oliverson is a strong case of the application of the principle.
It was thei'e pointed out how favorable the rule was to the principal,
because till ratification he was not bound, and he had an option to adopt
or not to adopt what had been done. In that case the plaintiff had
effected an insurance on a ship in which another person was interested,
and it was held that long after the ship had been lost the other person
might adopt the act of the plaintiff, though done without authorit}', so
as to enable the plaintiff to sue upon the policy. Again, in Ancona v.
Marks, where a bill was indorsed to and sued on in the name of Ancona,
who had given no authority for that purpose, yet it was held that
Ancona could, after the action had been brought, ratify what had been
done, and that the subsequent ratification was equivalent to a prior
authority- so as to entitle Ancona to sue upon the bill. It was said b}''
Mr. Brice, that in that case there was a previously existing liability of
the defendant towards some person ; but the liability of the defendant
to Ancona was established b}- Ancona's authorizing and ratifying the
act of the agent, and a previously existing liabilit}' to others did not
affect the principle laid down.

The rule as to ratification is of course subject to some exceptions.
An estate once vested cannot be divested, nor can an act lawful at the
time of its performance be rendered unlawful, b}' the application of the
doctrine of ratification. The case of Walter o. James, L. R. 6 Ex. 124,
was relied on b}- the appellant, but in that case there was an agreement
between the assumed agent of the defendant and the plaintiff to cancel
what had been done before anj' ratification by the defendant; in the
present case there was no agreement made between Scratchle}' and the
defendant that what had been done b}- Scratchley should be considered
as null and void.

The case of Bird v. Brown, 4 Ex. 786, which was also relied on by
the appellant, is distinguishable from this case. There it was held that
the ratification could not operate to divest the ownership which had
previously vested in the purchaser by the delivery of the goods before
the ratification of the alleged stoppage in transitu. So also in Lyell v.
Kennedy-, 18 Q. B. D. 796, the plaintiff, who represented the lawful
heir, desired, after the defendant Kennedy had acquired a title to the
estate b}- means of the Statute of Limitations, and after the title of the
heir was gone, to ratif}' the act of Kennedy as to the receipt of rents,
so as to make the estate vest in the heir. In my opinion none of these
cases support the appellant's contention.

SECT. III.] BOLTON PARTNERS V. LAMBERT. 1057

I think the proper view is that the acceptance by Scratchle^' did con-
stitute a contract, subject to its being shown that Scratchle^- liad author-
ity to bind the company. If that were not shown there would be
no contract on the part of the company, but when and as soon as
authority was given to Scratchley to bind the company the authority-
was thrown back to the time when the act was done by Scratchley, and
prevented the defendant withdrawing his offer, because it was then no
longer an offer, but a binding contract.

This point therefore must also be decided against the appellant.
Another point was raised as to misrepresentation, but, having regard
to the evidence, in my opinion that has not been made out. The ap-
peal therefoi'e fails.

LiNDLEY, L. J. I am of the same opinion. Three defences are set
up. The first is that the two letters of the 8th of December and the
13th of December did not amount to a contract at all, but were mere
negotiations ; the second is, that the contract, if any, was based on a
misrepresentation such as to entitle the defendant to resist specific per-
formance ; and the third is, that no contract was made, because the
offer was withdrawn before acceptance. In my opinion there is nothing
in the first or second points. As to the first point, it is impossible to
read the two letters otherwise than as amounting to a clear offer and an
acceptance ; and as to the second point there is no proof of misrepre-
sentation. The third point is altogether a different one, and is much
more difficult. [His lordship referred briefly to the facts of the case,
and continued] : —

The question is what is the consequence of the withdrawal of the
offer after acceptance by the assumed agent — but before the authority-
of the agent has been ratified? Is the withdrawal in time? It is said
on the one hand that the ordinary principle of law applies, viz., than an
offer ma}' be withdrawn before acceptance. That proposition is of
course true. But the question is — acceptance b}- whom ? It is not a
question whether a mere offer can be withdrawn, but the question is
whether, when there has been in fact an acceptance which is in form
an acceptance by a principal through his agent, though the person
assuming to act as agent has not then been so authorized, there can or
cannot be a withdrawal of the offer before the ratification of the accept-
ance? I can find no authority in the books to warrant the contention
that an offer made, and in fact accepted by a principal through an agent
or otherwise, can be withdrawn. The true view on the contrary ap-
pears to be that the doctrine as to the retrospective action of ratification
is applicable.

If we look at Mr. Brice's argument closely it will be found to turn on
this — that the acceptance was a nullity, and unless we are prepared to
say that the acceptance of the agent was absolutely a nullity, Mr. Brice's
contention cannot be accepted. That the acceptance by the assumed
agent cannot be treated as going for nothing is apparent from the case
of Walter v. James. I see no reason to take this case out of the appli-

1058 BOLTON PAKTNERS V. LAMBERT. [CHAP. X.

cation of the general principle as to ratification. The appeal therefore
fails on all points.

Lopes, L. J. An important point is raised with regard to the with-
drawal of the offer before ratification in this case.

If there had been no withdrawal of the offer this case would have been
simple. The ratification by the plaintiffs would have related back to
the time of the acceptance of the defendant's offer b}- Scratchley, and
the plaintiffs would have adopted a contract made on their behalf

It is said that there was no contract which could be ratified, l)ecause
Scratchley at the time he accepted the defendant's offer had no author-
ity to act for the plaintiffs. Directly' Scratchle}- on behalf and in the
name of the plaintiffs accepted the defendant's offer, I think there was
a contract made b^' Scratchlej^ assuming to act for the plaintiffs, sub-
ject to proof by the plaintiffs that Scratchle}' had that authority.

The plaintiffs subsequently did adopt the contract, and thereby recog-
nized the authority of their agent Scratchle}'. Directly they did so the
doctrine of ratification applied and gave the same effect to the contract
made by Scratchley as it would have had if Scratchley- had been clothed
with a precedent authorit}' to make it.

If Scratchley had acted under a precedent authorit}' the withdrawal
of the offer by the defendant would have been inoperative, and it is
equally inoperative where the plaintiffs have ratified and adopted the
contract of the agent. To hold otherwise would be to deprive the doc-
trine of ratification of its I'etrospective effect. To use the words of
Baron Martin in Brook v. Hook, L. R. 6 Ex. 96, the ratification would
not be " dragged back as it were, and made equipollent to a prior
command."

I have nothing to add with regard to the other points raised. I
agree with what has been said on those points. The appeal must be
disir>issed.^

1 See In re Portuguese Consolidated Copper Mines, 4.5 Ch. D. 16 (C. A. 1890),
where, in the Chancery Division, North, J., commenting on the principal case,
said : " It conies to this, that if an offer to purchase is made to a person who
professes to be the agent for a principal, but who has no authority to accept it,
the person making the offer will he in a worse position as regards withdrawing it
than if it had been made to the principal ; and the acceptance of the unauthorized
agent in the meantime will bind the purchaser to his principal, but will not in any
way bind the principal to the purchaser. . . . That case governs the present ; and
all that I can say is that I am glad to have such an autliority to guide me ; for
I am afraid I should have gone wrong if I had not liad the assistance of that
decision." And in the same case in the Court of Appeal, Lindley, L. J, said:
" Then it is said that the fact that the contract was made by persons without
authority makes it void. . . . That was the very point urged in Bolton Partners v.
Lambert; but the court repudiated it, and said: 'No, it is voidable at the option
of the principal ; he can avoid it if he likes ; he can elect to stand upon it if he
likes.' "

There are comments on the principal case in 5 Law Q. Rev. 440 ; Fry on Spe-
cific Performance (3d ed.), 711-713; 9 Harv. Law Rev. 60. — Ed.

INDEX.

Admissions of agent, 447-468.
Agency, what acts can be done through, 3.3-42.
how constituted, 42-78.
And see Appointment; Dklegation;
Katification.
how terminated. See Termination.
Agent, who can be, 2-15.

(See Infancy, Coverture, Statute
of Frauds.
what acts can be done through, 3.3-42.
how appointed, 42-78.

See Appointment; Delegation;
Ratification.
responsibility of principal for, 79-468.
See Contracts, Torts, Misrepke-

SENT.A.TION, CRIMES, ADMISSIONS.

when responsible to strangers, 469-547.

See Contracts, Torts, Sub-Agent.
rights and liabilities as to writings, 548-
626.

See Writings.
rights and liabilities in cases of undis-
closed principal, 658-673, 723-740.
See Undisclosed Principal
rights against the principal, 741-881.
See Compensation, Indemnity, Fel-
lo\v-Serv.\nts, Appliances, Em-
ployers' Liability Acts.
duties to the principal, 882-927.
See Obedience, Loyalty, Delegation.
power of delegation, 928-952.

See Delegation.
how discharged, 953-985.

See Termination.
how affected by ratification, 986-1058.
See Ratification.
Ambiguous instructions, responsibility for,

138-1.39, 155-157.
American Leading Cases, quoted, 21 n.
Appliances, suitable, master's dutj- to supply,

824-881.
Appointment of agent, 42-78.
in general, 42-51.
to execute instrument within Statute of

Frauds, 52-58.
to execute a specialty, 58-78.

See Delegation, Ratification.
Arrest, responsibility for causing, 243-248.
Attorney at law, 5-6, 545-547.
Auctioneer. 11-15, 535-540, 550-554, 561-564,
658.

Banks as collecting agents, 9.36-939, 942-946.

Bill of lading for goods not shipped, 368-373,
418-425.

Bills and notes. See Negotiable Instru-
ments.

Blackstone's Commentaries, quoted, 93-95-
Blanks, tilling of, 62-67, 70-78.
Bracton, quoted, 987, n.
Brokers, powers of, 268, 272-281.

rights and liabilities of, as to third parties
See Writings, Undisclosed Frin

CIPAL.

Coke on Littleton, quoted, 3, 987, n.
Collect, authority to, 283-286, 322-324.
duty to, 339-342.

delegation of emplovment to, 929-931,
936-939, 942-946.
Compensation, 741, n.
Compulsory seryant, 129-133, 808-810.
Contractors, independent, responsibility for,
98-101, i48-149, 206-213, 229-231.
how distinguished from servants, 152-
15.5, 210-213, 240-242.
Contracts of agent, principal's responsibility
for, 253-357.
unauthorized, of agent, agent's responsi-
bility for, 494-.525.
authorized, of agent, agent's responsibil-
ity for, if principal disclosed, 525-547.
Corporation, agent's power to affix seal for,

78. n.
Coverture, 9, 23-33.

See ^Iarried Women.
Crimes of agent, principal's responsibility
for, 429-447.

Death as terminating agency, 957-962.
Delegation.

agent's responsibility to third person for
sub-agent's negligence, 470-471, 479-
482.
agent's authority to make, 928-952.
Deviation by servant, master's responMbilitv
for, in tort, 117-118, 122-125, 144-147, 196-
19S, 204-206.
Digest quoted, 986, n.
Diligence. See Obedience.
Disobedience of servant, master's responsi-
bility for. in tort, 130-144, 234-237.
See Obp;dience.
Doctor and Student, quoted, 80-81.

Emergency, agent's powers in, 301-303,

902, n., 951-9.52.
EmploA'ers' Liability Acts, 880, n.

Factors' liabilities. See Undisclosed
Principal.

Dowers, 253. 282-283, 627-628.

rights, 887-889.

statutes as to, 253, n., 355-35"^

1060

INDEX.

Factors. — continued.

del credere, 627-628, 675-677, 893-896.
duties as to delegation, 931-934.
Fellow-servants, 773-823.

/See Appliances; Employers' Liabil-
ity Acts.
Foreitjn principal, 531-535, 542-545, 637-642,

'692-698, 704-713.
Fraud, 358-428.

Illegal transactions, rif;hts of principal and
agent inter se as to, 741-744, 765-773, 902-
906. 929.
In(!eranity, agent's right to, 741-773.
Independent contractors. See Contractors.
Infancy of agent, 7-8.

of principal, 17-23, 514-517.
as affecting the fellow-servant rule, 819-
820.
Insanity, 15-16, 967-971.
Insurance agents, powers of, 350-354, 509-

514, 962-967.
Insurance, unauthorized, ratification of, 1037-

1040, 1051-1053.
Irrevocability. See Termination.

Libel, criminal, 429-432, 439-442.

Limit, effect of a mathematical, 266-267, 311-

316, 334-338.
Liquors, intoxicating, principal's liability for

agent's sale ot, 435-438, 442-447.
Littleton's Tenures quoted, 979, n.
Loyalty, agent's duty of, 904-927.

Machinery. See Appliances.
Malice. See Wilful Act.
Married woman as agent, 9.

as principal, 23-33.
Master of ship, power to borrow, 303, n.
power to give bill of lading, 368-373.
applicability of fellow-servant rule to,
868-871. "
Misfeasance and non-feasance, 469-494, 882-

904.
Misrepresentation and fraud, principal's re-
sponsibility for, 358-428.
agent's resnonsibiiitv for, 488-489.
Mistake, respon'sibilitv for, 138-139, 155-157,
166-170, 191-196, 243-248.

Negotiablf paper, agent's power to deal
with, 266-267, 269-272, 303-311, 319-
322, 331-334, 349.
unauthorized, agent's responsibility for,

494-499.
parties to, 601-626, 643-645, 647, n., 666, n.
See Undisclosed Principal.
Nuisance, criminal, 432-435.

Obedience, diligence, and skill, agent's duty

of, 882-904.
Over-issues of certificates, 387-411, 425-428,

517-521.

Partner's authority to execute specialties,
78, n.

Perkins' Profitable Book, quoted, 2, 18, n.

Power coupled with interest. See Termina-
tion.

Principal, who can be. 15-38.

See Insanity"; Infancy; Coverture.
responsibilities and rights of, as to third
parties, 79-468, 548-657, 673-723.

See Torts; Contracts; Misrepre-
sentation; Crimes; Admissions j
Writings; Specialties; Negotia-
ble Paper ; Undisclosed Prin-
cipal; Delegation; Ratification.
duties to the agent, 741-881.

See Compensation ; Indemnity;
Fellovv-Sekvants ; Appliances ;
Employers' Liability' Acts.
rights against the agent, 882-927.
See Obedience; Loy'alty.
Procuration, form and effect of signature hy,
286-288, 324-328, 601-602.

QuASi-contractual liability of agent to third

party, 540-542.
Qui facit per aliu7nj'acitj)er se, 1-2.

Ratification, early authorities as to, 986-
988.

requisites and results of, 291-301, 989-

1033.
intervention of rights preventing, 1034-
1058.
Reimbursement, agent's right to, 741-773.
Remuneration. 741, n.

Repairs. See Eellow-Servants ; Appli-
ances; Employers' Liability' Acts.
Representation, implied, of authority, 496-502,

504-506, 509-514.
Revocation. See Termination.

Sealed instruments. See Specialties.
Security, power given as. See Termination
Servant, who is, 105-117, 125-138, 180-183.

See Eellow-Servants.
Set-off and similar defences, in cases of un-
disclosed principal, 673-740
Sext, quoted. 1, n., 833, n., 987, n.
Skill. See Obedience.
Slave as agent, 3-4.

Specialties, appointment to execute, 58-78.
parties to, 583-GOO, 647, n., 666, n.
See Undisclosed Principal.
ratification of execution of, 992-993.
Statute of Frauds, extracts from, 52-53.
who can be agents under, 10-15.
appointment to execute an instrument

within. 52-58.
form of signature to an instrument within,
5.54-558, 645-647.
Statute of Limitations, 37-39.
Sub-agent, agent's responsibility for, 470-471,
479-482.

principal's responsibility for. See Del-
egation.
responsibilit}' of, to principal, 929-931.

Termination of agencj' by revocation, 953-
957.

by death, 957-962.
by other events, 962-972.
limitations on right or power of, 973-985.
Torts of agent, principal's responsibility for,
in general, 95-252.
misrepresentation and fraud, principal'a

responsibility for, 358-428.
agent's responsibility for, 469-494.
ratification of, 1030-1033.

Undisclosed principal, rights of, 627-636,
673-691.

INDEX.

1061

Undisclosed Principal. — cnnlimied.

liabilities of, 3ai-334, 63G-657, 692-723.
liabilities of agtnt, 658-664, 723-728.
rights of agent, 664-673, 729-740.
defences, including set-off, 673-740.

VlCE-PKINCIPAL, 824-881.

Volenti nonjt injuria, 831-833, 835-841, 868-

871.
Volunteer, principal's responsibility for acts
of, 14!t-152.
principal's responsibility to, 813-818.

Wak, 902-967.

Warranty, authority to give, 316-322, 328-
ool.
implied, of authority, 504-509, 514-525,
West's Syniboleography, quoted, 2.
Wilful act of agent, principal's responsibility
for, 102-104,118-122, 162-165, 170-180,
184-1'JO, 198-202, 218-224, 250-252.
agent's responsibility for, 483-487, 489-
491.
Writings, parties to, 548-626. 629-630.

^ee Si'EciALTiEs; Negotiable Papeb;
UNDISCLOSED Principal.