§ 1011. Extent of the seller's obligation in a sale to arrive. Whether the seller promises that the condition of the contract shall happen is also a question of construction. It is well settled, however, that the words "to arrive" or their equivalent, do not of themselves import a promise that the goods shall arrive. 15 The same effect was given in a New York decision to the words attached to a sold note, "on board” a specified vessel, known to be then at sea. 16 Not infrequently, however, the seller promises or warrants that the goods shall be shipped, or that the goods are on board at the time of the bargain, or that the goods are of a particular quality." Some vessel. Both vessels arrived safely but the buyers refused to take the cargo of either on the ground that the Empress of India did not carry the required cargo and the other vessel was not that named in the contract. The court held, however, that the only condition in regard to the vessel was shipment in that vessel, the condition in regard to arrival relating only to the goods. Compare with this case Idle v. Thornton, 3 Campb. 274, a contract for tallow "on arrival ex Catherina Evers" and "if it should not arrive before the 31st of December the bargain to be void." The Catherine Evers was wrecked but most of the tallow was saved and could have been forwarded to the port of destination before the 31st of December. It was held that the seller was not liable for failure to forward it, at least, unless the buyer so requested and indemnified the seller. 15 Johnson v. Macdonald, 9 M. & W. 600; Neldon v. Smith, 36 N. J. L. 148; Abe Stein Co. v. Robertson, 167 N. Y. 101, 60 N. E. 329; Rogers v. Woodruff, 23 Ohio St. 632, 13 Am. Rep. 276. See also Hale v. Rawson, 27 L. J. C. P. 189. So of the words "subject to arrival." Penn Glass Co. v. Harshaw &c. Co., 46 Ind App. 645, 90 N. E. 1047. &c. 16 Shields v. Pettie, 4 N. Y. 122. To similar effect, see Kirsch v. Benyunes, 105 N. Y. Misc. 648, 174 N. Y. S. 794. 17 Abe Stein Co. v. Robertson, 167 Y. N. 101, 60 N. E. 329. In this case the memorandum of the bargain stated that there were sold "85,000 Tein-Sin goat skins" of specified quality which were "expected to arrive." By letter the bargain was modified by the addition of the condition "no arrival, no sale." Goods were shipped by the defendants and duly arrived. The court held these goods were "obviously intended to be furnished under the agreement," but they were not of the quality the contract called for. It was held that the seller was liable for their defective character. The condition imposed by the words "expected to arrive," and "no arrival, no sale," applied only to the risks of navigation, not to the shipment of proper goods. In Simond v. Braddon, 2 C. B. (N. S.) 324, there was an express engagement by the seller "to deliver what is shipped on his account and in conformity with his invoice." To the same effect is Dike v. Reitlinger, 23 Hun, 241. In Gorrissen v. Perrin, 2 C. B. (N. S.) 681, a sale of a specified number of bales "now on passage" was held to import a warranty by the seller that these bales were then on passage. 18 of the early cases seem to have gone to an unreasonable extent in holding the seller free from any promise, whenever goods of the particular description called for by the contract do not arrive. It seems a more probable intent that the condition in regard to arrival is merely to protect the seller from risks of transportation, as was held in the most recent New York decisions, 181 though doubtless a broader intent is possible, and if expressed should be made effectual. 19 If part of the goods arrive but part do not, when the condition applies not simply to the arrival of the vessel but to the arrival of the goods, neither the buyer is bound to take the portion that In Strahl v. Herbst, (App. Term 1916), 159 N. Y. S. 718, the contract called for "October shipment from Brazil. Goods to arrive during the month of November." This was held to bind the seller to ship in October through he would not be liable if the goods failed to arrive in November. 18 Thus in Shields v. Pettie, 4 N. Y. 122, a contract was concluded in these terms: "New York, July 19, '47. Sold for Messrs. Geo. W. Shields & Co., to Messrs. Pettie & Mann, 150 tons Gartshemi pig iron, No. 1, at $29 per ton, one-half at 6 mos., onehalf cash less 4 pr. ct., on board Siddons. Thos. Ingham, broker." The court said: "There was no warranty, express or implied, either that any iron should arrive, or that arriving, it should be of a particular quality. One hundred and fifty tons of Gartshemi pig iron of the quality denominated No. 1 was expected to arrive by the Siddons, and the contract was to the effect, that if that quantity and quality of iron did so arrive, one party should sell and the other should receive it at a certain price per ton. The iron called for by the contract did not arrive, but iron of a different quality, and I think the contract was at an end." This decision seems inconsistent with the later case of Abe Stein Co. v. Robertson, 167 N. Y. 101, 60 N. E. 329, stated in the preceding note. The earlier New York case is, however, supported by Vernede v. Weber, 1 H. & N. 311, stated supra, n. 11. In Barnett v. Javeri & Co., [1916] 2 K. B. 390, Bailhache, J., distinguishing earlier cases where the contracts had stated particular vessels in which the goods were to be shipped from the case before him where the seller's promise was made "subject to safe arrival" of the goods but named no vessel by which shipment was to be made, held that there was a warranty that the goods would be shipped and that the seller was liable, though his failure to ship was due to breach of a contract of one from whom he had contracted to obtain the goods. 184 Abe Stein Co. v. Robertson, 167 N. Y. 101, 60 N. E. 329; Strahl v. Herbst (App. Term), 159 N. Y. S. 718; Haber v. S. A. Jacobson Co., 185 N. Y. App. D. 650, 173 N. Y. S. 524. To the same effect is Barnett v. Javeri, [1916] 2 K. B. 390. 19 In Penn, etc., Glass Co. v. Harshow, etc., Co., 46 Ind. App. 645, 90 N. E. 1047, the seller was held excused when the goods were never shipped owing to breach of contract by a third person from whom the seller had contracted to obtain them. But see Barnett v. Javeri & Co., [1916] 2 K. B. 390. arrives nor the seller to deliver it. The arrival of part of the goods is not the happening of the condition requisite for the validity of the bargain.20 Whether an arrival is sufficiently near the date stated to be a compliance with the condition is a question of fact in each case. Whether the goods were expected by sea or by rail and the length and risks of delay in the route by which they were expected will usually be controlling circumstances.21 20 Vernede v. Weber, 1 H. & N. 311; Shields v. Pettie, 4 N. Y. 122, 124. 21 In Bowman & Bull Co. v. Linn, 279 Ill. 397, 117 N. E. 61, the contract was for butter "due to arrive in Seattle [from New Zealand] about January 7." It was held that the buyer was bound to take it though it did not reach Seattle until January 15. CHAPTER XXX CONTRACTS OF EMPLOYMENT AND CONTRACTS TO MARRY Principal and agent, and master and servant. . . . Duties of the employer and employee to one another. Duty to employ. . . . . Agents' duty to obey instructions. Servants' duty of obedience. Limits of servants' duty of obedience.... Liability of a principal for default of a sub-agent. 1012 1013 1014 1015 1016 1017 1018 1019 Employee is chargeable as trustee with anything fraudulently acquired.... 1023 Effect of the Statute of Frauds on agent's duty in regard to real estate. 1024 Employee's duty in regard to information acquired by him... 1025 § 1012. Principal and agent, and master and servant. The difference customarily stated to exist between the relation of principal and agent and that of master and servant is that where the employer has the right to direct the manner in which work shall be done, the relation is that of master and servant; but where the right is only to require that the act shall be done, the relation is that of principal and agent.1 The distinction, however, is not wholly satisfactory. One of the duties of an agent is obedience to his principal's directions so far as the contract between the two, or the customs of business give the principal the right to direct the agent's conduct. The extent to which the employer may dictate 1 Yewens v. Noakes, 6 Q. B. D. 530, 532; Singer Mfg. Co. v. Rahn, 132 U. S. 518, 10 Sup. Ct. 175, 33 L. Ed. 440; Butler v. Townsend, 126 N. Y. 105, 26 N. E. 1017; Bailey v. Troy, etc., R. Co., 57 Vt. 252, 52 Am. Rep. 129. the precise mode in which the employee shall achieve the result for which he is employed, varies according to the contract between the parties, and according to the nature of the business in hand. Probably the question is purely one of degree, and cases could be put in an unbroken series from one where the employer had no right of directing the manner of performance to one where he had the right to direct every detail. However necessary it may be to draw the dividing line in some connections between a servant and an agent, in considering the mutual obligations of employer and employee to one another, the distinction is generally immaterial.2 The duties of the employee, whether he is called an agent or a servant, are those imposed by the contract between the parties as construed in the light of existing usages. In considering the mutual obligations of the parties, gratuitous agencies, and agencies terminable by will, must be distinguished from other employments. In a purely gratuitous employment, there is no contract, and the obligations of the parties must be such as are imposed by law irrespective of contract. In employments terminable at will, though the rights of the parties arising from present or past performance are governed by their contract continuously as the employment proceeds,3 there is no obligation as to the future. These exceptional cases may be put aside for the moment and the typical case of an employment for reward and for a term considered. In defining the mutual obligations of the parties, two questions must be considered. First, what are the respective duties of the parties and, second, what effect will a particular breach of duty by one of the parties have on the obligations of the other party? § 1013. Duties of the employer and employee to one another. The duties of the employee whether he be an agent of the highest class, or a servant even of a menial class, are fundamentally alike. The employee is bound to render 2 Whether the principle that a disloyal agent forfeits a right to any compensation (infra, § 1477), would be applied with the same strictness to all classes of employees, is doubtful. See Rathenberger v. Jacob, 167 Wis. 273, 167 N. W. 271. 3 See supra, § 49. |