embezzlement the taking is lawful, but the appropriation is felonious.) Point Involved: What circumstances constitute one an agent? Is a tailor who contracts to make a suit of clothes for a customer an agent (or servant) or is he an independent contractor? Is money paid on account by the customer for such suit of clothes the money of the customer in the hands of the tailor, or is it the tailor's money? SIMPSON, J.: "This Court said in discussing a former statute that an agent is 'one who undertakes to transact some business or to manage some affair for another, by the authority and on account of the latter and to render an account of it;' also that ""agent" so employed in this section, imports a principal, and implies employment, service, delegated authority to do something in the name and stead of the principal.' Pullam v. State, 78 Ala. 31, 34, 56, Am. Rep. 21. The relation of principal and agent did not exist between the prosecutor and the defendant, but the relation of seller and purchaser. The defendant did not undertake to do anything in the name and stead of the prosecutor. The money was not placed in his hands to be used or cared for, and accounted for to the prosecutor, but was paid to him in part settlement for a suit of clothes, and thereby became the money of the defendant to use as he pleased. Whatever other liability or penalty the defendant may have incurred, he could not be convicted of embezzlement on the facts of this case. Question 196: C makes a contract with A, whereby A is to furnish the cloth and make C a suit of clothes for a specified price. A employs E, a journeyman tailor in his shop, and sends the coat out to M, a coat maker, to be made in M's shop. A sends X, a clerk, to buy the cloth for the suit from Y. Are any of these parties, agents or servants of C? What is the relationship to A, of E, of M, of X and of Y? Case 197. Singer Mfg. Co. (Defendant) v. Rahn (Plaintiff), 132 United States Reports, 518. Facts: Katie Rahn sued the Singer Mfg. Co. for damages for personal injuries sustained by the alleged neg ligence of one Corbett who sold defendant's sewing machines, using a horse and wagon furnished by the Singer Company. The provisions of the contract are set forth in the opinion below. The plaintiff, Rahn, claims that Corbett was an agent (or servant) of the Singer Company and that they are liable for his negligence in doing his work. The Singer Company claims that Corbett was not employed by it, but merely was an independent contractor. Point Involved: What facts determine where one is an agent (or servant) or independent contractor? GRAY, J.: "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 by 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 disapproved or forbade it. Philadelphia & Reading Railroad v. Derby, 14 How. (U. S.) 478, 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 what shall be done, but how it shall be done.' Railroad Co. v. Hanning, 15 Wall. (U. S.) 649, 656. "The contract between the defendant and Corbett, upon the construction and effect of which this case turns, is entitled 'Canvasser's Salary and Commission Contract.' The compensation to be paid to Corbett by the company, for selling its machines, consisting of a 'selling commission' on the price of machines sold by him, and 'a collecting 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 by him are 'to be used exclusively 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 commissions under the contract, if, while it is in force, he sells any machines other than those furnished to him by the company, and he 'further 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 prescribe.' "In short, Corbett, for the commissions to be paid him, agrees to give his whole time and services to the business of the company; and the company reserves to itself the right of prescribing and regulating not only what business he shall do, but the manner in which he shall do it; and, if it saw fit, might 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 any manner whereby the public or any individual may be led to believe that it is responsible for his actions, does not and cannot affect its responsibility to third persons injured by his negligence in the course of his employment. "The circuit court therefore rightly held that Corbett was the defendant's servant, for whose negligence in the course of his employment, the defendant was responsible to the plaintiff. *99 Question 197: (1) State in detail what facts led the Court to determine that the salesman was an agent or servant. (2) A desiring to construct a house on his land procures B, a building contractor, to do the work which is to be completed to the satisfaction of A's architect. B contracts with various parties to do particular parts of the work. One of these is C, an employing painter, who is to do all the painting for a certain lump price. D, a painter, works for C. By his negligence he injures M. Is C, B, or A liable? Case 198. Kingan & Co. v. Silvers, 13 Ind. App. 80. Facts: Suit against W. F. Silvers and James Silvers upon a note made by the Silvers to order of Kingan & Co. The complaint set forth the note and alleged that it had been procured from defendants by plaintiffs' traveling salesman, one Nichols, an agent employed to sell goods, but having no authority to take notes or make settlements for plaintiffs. That said salesman being about to go to Lebanon, Indiana, to take orders for goods, was instructed to procure a promissory note from defendants for $388.03 on account of an indebtedness to plaintiff; that he did procure such note and afterwards and without plaintiffs' knowledge he altered it by erasing "after maturity" and inserting "from date" so that the note was made by its terms to bear 8% from date instead of after maturity, that plaintiffs claim on the note in its original condition, repudiating Nichols' act in altering the note. Defense (in form of demurrer) that the complaint shows that plaintiffs by their agent are guilty of a purposeful and material alteration of the note and therefore have no right thereupon. Point Involved: The difference between an agent and a servant; what sort of duties make one an agent, and what, a servant; the power of the agent and the servant to represent the principal for contractual purposes with third persons. Lotz, J.: The most effectual means of preserving the integrity of such instruments are the rule that a material alteration destroys the instrument so that no recovery can be had upon it either in its original or altered condition, and the rule that no recovery can be had upon the original consideration if the change be made for a fraudulent purpose. 66* * * * The change in the note was not made by the plaintiffs' order or direction, but it entrusted certain business to another as its agent, and such person made the alteration. If the alteration was made by the agent while in the transaction of the principal's business, and in the scope of his authority, then the act of the agent is the act of the principal,—“qui facit per alium, facit per se." If he was the plaintiffs' agent and the act was within the scope of his authority, then his act must be deemed the act of the plaintiffs, and the law is with the defendants. If his position was that of a mere stranger to the note then the law is with the plaintiffs. * * to pro * At the time Nichols made the alteration of the note, was he the agent or servant of the plaintiff in respect to his duties pertaining to said note. Nichols was the agent of the plaintiff cure the note. Did his relation as agent cease when he obtained the note, or did it continue until the note was delivered to the plaintiff? * This leads * to the inquiry who are agents and who are servants? In the primitive conditions of society the things which were the subjects of sale and trade were few in number. There was little occasion for any one to engage in commercial transactions, and when it did become necessary the business was generally transacted by the parties thereto in person. But the strong and powerful had many servants who were usually slaves. The servants performed menial and manual services for the master. As civilization advanced the things which are the subjects of commerce. increased, and it became necessary to perform commercial transactions through the medium of other persons. The relation of principal and agent is but an outgrowth or expansion of the relation of master and servant. The same rules that apply to the one generally apply to the other. There is a marked similarity in the legal consequences flowing from the two relations. It is often difficult to distinguish the difference between an agent and a servant. Agents are often denominated servants and servants are often called agents. The word 'servant' in its broadest meaning includes an agent. There is, however, in legal contemplation a difference between an agent and a servant. The Romans, to whom we are indebted for many of the principles of agency, in the early stages of their laws used the terms mandatum (to put into one's hands or confide to the discretion of another) and negotium (to transact business or to treat concerning purchases) in describing this relation. Story Agency, section 4. Agency, properly speaking, relates to commercial or business transactions, while service has reference |