in fact to execute the instrument: Berkey v. Judd, 22 Minn. 287, 302; First National Bank v. Loyhed, 28 Id. 396; Devinney v. Reynolds, 1 Watts & S. (Penn.) 328; Forsyth v. Day, 41 Me. 382.

3. The authority to the firm was to sell for one-half cash, and the other half payable on or before one year. They sold for one-half cash and the other half payable in one year. It is claimed that this was unauthorized, and therefore the principal is not bound. The terms of the contract as executed, so far as they affect the rights of the defendant, were in legal effect the same as those authorized. By each he would be entitled to demand payment in one year, and not before. The distinction between. this case and one where the facts are exactly reversed (such as Jackson v. Badger, 35 Minn. 52) will be apparent on a moments reflection.

We therefore think that the evidence shows a binding contract by the defendant to sell and convey, and shows no valid reason why he ought not to and cannot perform.

Order reversed.

LIABILITY FOR TORTS OF SERVANT

COHEN V. DRY DOCK COMPANY

69 N. Y. 170 (1887)

Appeal from order of the General Terms of the Superior Court of the city of New York, reversing a judgment in favor of defendant, entered upon an order nonsuiting plaintiff on the trial, and granting a new trial. (Reported below, 8 J. & S., 368.)

This action was brought to recover damages alleged to have been sustained by reason of the negligence of defendant's servant. On April 27, 1872, plaintiff was driving along Catharine Street, in the city of New York, in a buggy. He had crossed the track of defendant's road, but before the rear part of the buggy was far enough from the track, so that a car could pass without striking it, his further progress was arrested by a blockade of trucks and other vehicles, and he was unable to move forward, and by other vehicles he was prevented from moving in any direction. A car approached on defendant's road, the driver of which, as plaintiff testified, after waiting a moment or two, told the plaintiff to "get off the track." The plaintiff asked him to wait until the truck moved, promising then to move. The driver said, "Damn you, if you don't get off here I am late-I will get you off some other way." The plaintiff said, "You wait a moment; I guess the trucks are moving, and I may go." The trucks started, and as the plaintiff prepared to move on, the driver started his horses, and the platform of the car struck the

hind wheels of the buggy and overturned it, thus causing the injury complained of.

Defendant's counsel moved for a nonsuit on the ground, among others that the car-driver's act was not within the scope of his authority, but was an unlawful and unauthorized act, for which defendant was not responsible.

PER CURIAM. The general rule of law contended for by the appellant, that a master cannot be held liable for the willful, intentional, and malicious act of his servant, whereby injury is caused to a third person, is not disputed. Many limitations and illustrations of the rule will be found in reported cases, and it is not always easy to apply the rule. It has recently been under consideration in this court in the case of Rounds v. The Delaware, Lack. & Western R. R. Co., 64 N. Y. 129, and in the opinion of Andrews, J., in that case, is found a very thorough and satisfactory consideration of the rule, and the principles upon which it is founded. The general principles there announced are as follows: To make a master liable for the wrongful act of a servant to the injury of a third person, it is not necessary to show that he expressly authorized the particular act. It is sufficient to show that the servant was engaged at the time in doing his master's business, and was acting within the general scope of his authority, and this, although he departed from private instructions of the master, abused his authority, was reckless in the performance of his duty, and inflicted unnecessary injury. While the master is not responsible for the willful wrong of the servant, not done with a view to the master's service, or for the purpose of executing his orders; if the servant is authorized to use force against another, when necessary, in executing his master's orders, and if, while executing such orders, through misconduct or violence of temper, the servant uses more force than is necessary, the master is liable.

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 responsible when the servant, through lack of judgment or discretion, or from infirmity of temper, or under the influence of passion aroused by the circumstances and the occasion, goes beyond the strict line of his duty or authority, and inflicts an unjustifiable injury upon another.

The master is not exempt from responsibility in all cases on showing that the servant, without express authority, designed to do the act or the injury complained of. But if the servant, under guise and cover of executing his master's orders, and executing the authority conferred upon him, willfully and designedly, for the purpose of accomplishing his own independent, malicious, or wicked purposes, does an injury, then the master is not liable.

When it is said that the master is not responsible for the willful wrong of the servant, the language is to be understood as referring to an act of positive and designed injury not done with a view to the master's service, or for the purpose of executing his orders.

The application of these principles to the facts of this case leaves no doubt that the case was properly disposed of by the General Term of the Superior Court. The driver was driving this car for the defendant, and in its business. As the car could only run upon the railroad track, it was his duty, so far as he reasonably and peaceably could, to overcome obstacles on the track in the way of his car; and in driving his car and overcoming these obstacles, he was acting within the general scope of his authority. If he acted recklessly (and that is the most that can be said here), the defendant was responsible for his acts. He was not seeking to accomplish his own ends. He was seeking to make his trip on time, and for that purpose, and not for any purpose of his own, sought to remove plaintiff's buggy from the track. It cannot be said to be clear upon the facts proved, that the act of the driver was done with a view to injure the plaintiff, and not with a view to his master's service. He may have supposed that the plaintiff would get off from the track in time, or that he could crowd him off without injury. The evidence should at least have been submitted to the jury. They were the proper judges of the motives and the purposes of the driver, and of the character and quality of his acts.

The order must be affirmed and judgment absolute ordered against the defendant with costs.

All concur.

Order affirmed and judgment accordingly.

AUTHORITY OF AN AGENT IS REVOKED BY THE DEATH OF THE PRINCIPAL

LONG V. THAYER

150 U. S. 520 (1893)

Bill in equity filed by Thayer to enjoin enforcement of a judgment of ejectment obtained by Long against one Smith, a tenant under Thayer. Judgment for Thayer, upon condition that he pay into court $126.25, with interest, and decree that Long deposit quit claim deed, etc. Long appeals.

Thayer bought the lot in question of Skiles and Western under a contract made with their agent Kinney, by which upon non-payment of future instalments (amounting to $252.50), Thayer was to forfeit the

contract. Western died soon after. The instalments were paid by Thayer to Kinney after Western's death, one being paid before he knew of Western's death, and one after he knew of it. Long is the grantee from Western's heirs, who had by partition proceedings succeeded to Skiles' interest also.

MR. JUSTICE BROWN (after stating the case) delivered the opinion of the court.

This case turns largely upon the legal effect to be given to the death of Western, which took place a few days after the contract for the sale of the land was made, and before the first note became due. Had Western not died, there can be no question that the payments to Kinney would have been good, and that Thayer would have been entitled to a deed.

Western's death undoubtedly operated as a revocation of Kinney's authority to act for him or his estate. The payments made to Kinney as his agent would not be sufficient to discharge Thayer's obligation to his estate, even if such payments were made by him in actual ignorance of Western's death. Michigan Insurance Co. v. Leavenworth, 30 Vermont, 11; Davis V. Windsor Savings Bank, 46 Vermont, 728; Jenkins v. Atkins, 1 Humphrey (Tenn.), 294; Claytong v. Merrett, 52 Mississippi, 353; Lewis v. Kerr, 17 Iowa, 73. Indeed it was said by this court in Galt v. Galloway, 4 Pet. 332, 344, that "no principle is better settled, than that the powers of an agent cease on the death of his principal. If an act of agency be done, subsequent to the decease of the principal, though his death be unknown to the agent, the act is void."

Whether Western's death also operated as a revocation of the verbal authority given by Skiles may admit of some doubt, although the weight of authority is that the death of one partner or joint owner operates, in the case of a partnership, to dissolve the partnership, and in the case of a joint tenancy to sever the joint interest and the authority; of an agent appointed by a firm or joint owners thereupon ceases, where such authority is not coupled with an interest. McNaughton v. Moore, 1 Haywood (N. C.), 189; Rowe v. Rand, 111 Indiana, 206.

But even if it did operate as a technical revocation of Kinney's authority to act for Skiles, the presumption is, from Skiles' long silence, in the absence of proof to the contrary, that Kinney accounted to him for his proportion of the money collected. The court below evidently proceeded upon this theory, and required Thayer, as a condition for calling upon Long for a deed, to repay one-half of the amount of the two notes with the stipulated interest at 10 per cent. These were certainly as favorable terms as Long could expect. Thayer had paid the money to Kinney, with whom the contract was made, the first payment in

actual ignorance of Western's death, and the second doubtless under the supposition, which a person unlearned in the law might reasonably entertain, that payment to the person with whom the contract was made was sufficient, and that Kinney would account to the proper representatives of Western, and procure him a deed. All the equities of the case were in Thayer's favor, and justice demanded that Long should be required to convey, upon being paid, Western's share of the consideration with interest.

There is another view of the case which does not seem to have been presented to the court below, and which indicates that Long received even more than he was really entitled to. The second note of $150, which is produced, appears upon its face to have been payable to "J. F. Kinney or bearer," and while the first note if not produced Kinney swears that this was also payable in the same manner. The probabilities are that it was, both from the fact that the second note was payable to bearer and from the further fact that Kinney claimed that Western was largely indebted to him. If such were the case (and Kinney's authority to take these notes is not disputed), it is difficult to see why the payments to Kinney, who himself held the notes, were not valid payments, which entitled Thayer to a deed to the land. So long as these notes were outstanding, he could not safely pay to anyone else, and if he paid the holder, he did just what the contract required him to do.

Long clearly was not an innocent purchaser of the land in question. Not only had Thayer been in the open, notorious, and unequivocal possession of the land and its improvement, renting the premises and paying the taxes, but Long's marriage into the Western family, his taking a deed from the heirs through Mr. Meriwether, the husband of one of the heirs, who acted as attorney both for Long and for the heirs, and the giving of a promissory note unsecured by mortgage upon the land,a note which the heirs apparently never saw, indicate very clearly that he could not have been ignorant of the true situation.

The decree of the court below was clearly right, and must be affirmed.

NOTICE OF REVOCATION OF AN AGENCY

CLAFLIN V. LENHEIM

66 N. Y. 301, (1876)

Action to recover for merchandise alleged to have been sold by plaintiff to defendant. The opinion states the facts. Judgment for defendant and plaintiffs appealed.