part of one Wentworth, who was employed by the defendant; which evidence was contradicted by other witnesses.

There was also evidence that one or more of the defendants were present nearly every day, and gave directions as to the work being performed; and evidence contradicting this.

The defendants had employed Elston to perform part of the work in taking down the building named in the contract, and had also employed Wentworth and other persons to do other parts of taking down said building.

The judge instructed the jury upon the effect of said contract as follows: "The plaintiff contends that there was negligence both on the part of Wentworth and the men under his employ in placing this derrick, and on the part of Elston in removing this derrick. So far as regards Wentworth, the relation in which he stands to the defendants is a matter of verbal proof, and the principles which I have given you are to be applied in determining upon the evidence what that relation. was. So far as Elston is concerned, the relation in which he stood to the defendants at the outset is a matter of written contract, and where there is a written contract between parties, the construction of that written contract is a matter of law. This contract implies in substance that Elston is to take down the entire building known as the Adams House, or so much thereof as the trustees may request; and, in conclusion, that all of the work is to be done carefully, and under the direction and subject to the approval of the trustees. This contract gives the defendants the right to control and direct the action of Elston. It is not simply a provision that the work must finally meet their approval before they pay him, but it is a provision that, in the first instance, he is to take down just so much of it as they desire, and that he is to do the work of taking down under their direction. There is no other mode of construing it than so as to mean that he, by this contract, was subject to their orders as to the time and manner and mode of doing the work; than they had the right to step in and say to him, 'You are not doing this as we directed you to do it. We direct you to do thus and so, and we direct you to do this in the other way.' That seems to me, as far as the contract is concerned, to bring the case within

the relation of master and servant, so far as Elston and the defendants are concerned. You will observe that, although there has been evidence introduced upon the one side and the other, as to the actual control which the trustees, through one of their number, exercised over the work, and that is all proper and competent evidence for you in considering the matter, yet that the absolute test is not the exercise of power of control, but the right to exercise power of control. If, for instance, there was nothing in the case but this contract, and there was no question that the parties were acting under it, if that is the view you take of it, and that the injury was occasioned by the negligence of Elston, then, although the trustees should be across the Atlantic, nevertheless, under the instructions I give you, if they retained the power to control and direct the work, they would be liable; because it is the possession of the right of interference, the right of control, that puts upon a party the duty of seeing that the person who stands in that relation does his duty properly. If they have retained to themselves the right of directing the mode of doing the work, then, if the work is done wrong, the simple principle is that they are responsible."

The jury returned a verdict for the plaintiff, in the sum of $5500; and the defendants alleged exceptions.

W. B. Gale and J. W. Rollins for the defendants.

S. B. Allen and J. R. Murphy for the plaintiff.

FIELD, J. Whether an owner of a building retains such control over work to be done and the manner of doing it as to render himself responsible for injuries occasioned by the negligence of the contractor and his employees in the performance of the work, depends upon the construction to be given to the contract. (Erie v. Caulkins, 85 Penn. St. 247; Railroad v. Hanning, 15 Wall. 649; Eaton v. European & North American Railway, 59 Maine, 520; Cincinnati v. Stone, 5 Ohio St. 38; Newton v. Ellis, 5 El. & Bl. 115; Blake v. Thirst, 2 H. & C. 20.)

In this case, for the reasons given in the instructions, we

think the defendants are liable for injuries occasioned by the negligence of Elston and his employees in doing the work which the defendants requested Elston to do. (Railroad v. Hanning, ubi supra; Clapp v. Kemp, 122 Mass. 481; Brackett v. Lubke, 4 Allen, 138; Brooks v. Somerville, 106 Mass. 271; Forsyth v. Hooper, 11 Allen, 419; Kimball v. Cushman, 103 Mass. 194.) Exceptions overruled.1 3

SCOPE OF AUTHORITY.

MAIER V. RANDOLPH.

(33 Ks. 340.- 1885.)

C. N. Sterry for plaintiff in error.

W. A. Randolph for defendant in error.

The opinion of the court was delivered by

VALENTINE, J.: This action was commenced by W. A. Randolph and A. G. Randolph, partners as Randolph & Randolph, against Frank Maier, before a justice of the peace, and, after judgment, the case was appealed to the district court, in which court it was again tried, before the court and jury, and judgment was rendered in favor of the plaintiffs and against the defendant, for the sum of $144, and for costs. The defendant, as plaintiff in error, now brings the case to this court.

The case was tried in the district court upon the bill of particulars filed in the justice's court, which alleges, in substance, as follows: The plaintiffs owned a two-year-old thoroughbred Shorthorn bull, and the "defendant, by his employee and agent, without the knowledge and consent of the said plaintiffs,

1 The general rules on this subject are well stated in Lawrence v. Shipman, 39 Conn. 586; cf. Cuff v. Newark &c. Ry. Co., 35 N. J. L. 17; 10 Am. R. 205. For a learned discussion of the question when is the employer liable for the negligent act of an independent contractor, see dissenting opinion of Dwight, C., in McCafferty v. S. D. & P. M. Ry. Co., 61 N. Y. 178.

killed said bull; that said plaintiffs were damaged by the killing of said bull in the sum of $250." We think the bill of particulars presents a cause of action.

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We think the evidence showed liability on the part of the defendant. A principal, or master, or employer, is usually liable to third parties for the acts or negligence of his agent or servant while acting within the scope of his employment. Here the defendant instructed his servant to go to a certain place at a certain time and kill a beef. The servant went to such place, at such time, and, finding no animal there except the plaintiff's bull, killed the bull, skinned him, dressed him, and hung his carcass up in the slaughter-house as a beef. Evidently the servant was honestly attempting to obey the master's order, and evidently the servant thought that he was doing so; but he was honestly mistaken. A "beef," according to Webster's Dictionary, may be either a bull, a cow or an ox. The servant was all the time acting for the master, and he killed this bull while in the execution of his master's business, and within the scope of his employment; and therefore his master is liable. Judgment reversed on other grounds.

COHEN V. D. D. &c. Rr. Co.

(69 N. Y. 170.— 1877.)

APPEAL from order of the General Term of the Superior Court of the city of New York, reversing a judgment in favor of defendant, entered upon an order nonsuiting plaintiff on 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 plaintiff'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 trucks 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 way or other." 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.

John M. Scribner, Jr., for the appellant.

Julius Lipman for the respondent.

PER CURIAM. The general rule of law contended for by the appellant, that a master cannot be held liable for the wilful, 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