John Macdonell.

The law of master and servant. Part I.--Common law. Part II.-- Statute law online

. (page 27 of 77)
Online LibraryJohn MacdonellThe law of master and servant. Part I.--Common law. Part II.-- Statute law → online text (page 27 of 77)
Font size
QR-code for this ebook

holds the servant out to the world as his agent. With refer-
ence to a servant, who had been in the habit of drawing
bills of exchange in his master's name, and who was dis-
charged, Holt, 0. J., said, " If he draw a bill in so little
time after that the world cannot take notice of his being
out of service, the bill, in these cases, shall Ijind the
master" (t). In a Nisi Prius case (u), Pollock, C. B., ruled
that a gentleman was liable for corn ordered in his name by
a livery stable keeper, H., who had been his coachman, who
used to order corn, &c., of the plaintiff, and who continued
to wear his livery. The defendant did not give notice to
the plaintiff that H. was no longer in his service. It seems
that an account was sent to the defendant ; but he did not
then give any notice to the plaintiff, who continued to supply
corn on H.'s orders.

In some cases both master and servant will be bound.
This will happen when a servant contracts as the agent of
his master without naming his master, according to a well-
known rule of lav/, that an undisclosed principal or his agent
may be sued (y).

(s) JVilliamson v. Barton (1862), there is inucli more than that in

7 H. & N. 899 ; 31 L. J. Ex. 170 ; this case, and there may be notice

5 L. T. N. S. 800. hy other means than express or

{t) Anon. V. Harrison (1699), 1-2 actual notice. And here you have

Mod. 346. In Staveli/ v. Uzidll the fact tliat no accounts wore sent

(1860), 2 F. & F. 30, Erie, C. J., ruled in, even to the servant (and none to

tluis : "Although the law is clear the master), for four years before the

that the master who has once held servant's death ; and no accounts

out a servant as having autho- sent in until after his death, and the

rity to contract on credit must with- plaintifl's removaL"
draw that authority by notice, not to (») Ade v. Montague (1858), 1 F.

the servant, but to the tradesman, k F. 'Hii.

and that it is not enough to do so [y) 2 Sm. L. C. 8th ed. 360.

merely by notice to the servant ; yet





Xiclcson V. Brolian (1713), 10
Mod. 109 ; master frcnt a clerk
\\\\o lia<] the i^eiieral laanagemeiit
of his casli concenis with a note to
a banker to receive money or hank
bills, and the servant got another
])erson to give him fur tlie note a
draft upon tlie banker. Tlie banker
failed lief ore the draft was pre-
sented : the master liable on the
ground that a servant, by trans-
acting affairs for his master there-
by derives a general authority and
credit from him.

Hazard v. Treadwell (1722), 1
Str. 506. Master sent Avaternian
to plaintifi' to buy iron on credit,
and paid for it afterwarels ; sent
the same "waterman a second time
witli money ; the waterman re-
ceived the goods, but did not pay
the money.

Heltjear v. HairJie (1803), 5 Esp.
71. Person not a horse-dealer
sent his servant to 2\dtersairs witli
horse for sale, witli instructions
to warrant sound ; servant war-
ranted free from vice ; " servant
entrusted to do all that he can to
eflectuate the sale." Ellenborougli,
('.J. See, however, Brady v. I'odd,
and IVoodin v. Jhirford (1834), 2
Cr. & M. 3i)l.

Barrett v. Dccrc (1823), Mood. &
Malk. 200. Payment to a person
in a merchant's counting-house,
who appears to be entrusted with
the conduct of business there, good
payment to the merchant though
it turned out the jieison was never
so employed l)y him. Tenterden,
C. J.

llimdl V. Sampayo (1824), 1 C
& 1'. 254. J). 248.

Miller V. Hamilton (1832), 5 ('.
& P. 433. Paker delixered luead
from Week to week. He was paid
many sums by liousekeeper and
receipted weekly bills lor a date

No Authority.

Stubhiny v. Heintz (17!)l),Peake's
N. P. ()G. Master gave successive
servants money to ])ay the bills
once a week ; one servant did not
]iay the bills but bought meat
on credit for herself. Master not

Pcarce v. lioyers (1800), 3 Esp.
214. Plaintiff sued for ])rice of
beer supjilied todefendants family.
Defendant dealt with ^daintitf for
porter used by his family, and was
in the habit of paying leady money.

Hisco.i: V. (T')-t'e9acoo(/(1802),4Esp.
174. See p. 247.

Maunder v. Conyers (1817), 2
Stark. 281. A master not re-
sponsible for liquors ordered by his
butler in the name of his master
without authority, unless he has
been in the habit of jxiying for
goods ordered by the butler. Ellen-
borough, C J.

Waters \. Broyden {1821 \ 1 Y. &
J. 457. Clieque given by B. to
liis bailiff to give to C, in whose
favour it was drawn ; no autliority
in bailiff to discount the cheque
with A.

Sanderson v. Bell (1834), 2 C"r. ^;
M. 304. Semblc, payment to an
apprentice in master's counting-
house not in the usual course of
business is not a good payment to
the master.

Hanicr v. Berkeley (183«i) 7 C. it
P. 413. A. ordered of P. two suits
of livery a year for lier coacliman.
At the request of the coachman,
]j. sup])lied plain clothes instead
of one of tlie suits ; P. could re-
cover onlv for livery supplied.

ylf(;//v.''j'''min'(1840), 7 M. ikW.
151. Payment to country agent
of insurance company after ])eriod
for payment ; no authority to vary
time of ]>ayment.

Metcalfe v. Lumsden (1844), 1
C. & K. 309. An authority to a

servant's authority as to contracts.


Author I TV.
after the time lor wliii'h lioiiEie-
keeper paid liim ; (U't'emlaiit liable,
as he did not prove he had given
to housekeeper money to pay.

Smith V. Jllall dlnss Co. (1852),
11 C. B. 897. Defendants liable
for goods supplied to them on the
orders of manager, appointed to
superintend and transact, under
the control of the directors, the
manufacturing business of the
company, " although no express
delegation of authority."' So Tut-
terdell v. Farcham Jilue Brick Co.
(18G6), 35 L. J. C. P. 278 ; Geuke
V. Jackson {18(J1), 36 L. J. C. P.

Summers v. Solomon (1857), 7 E.
& B. 879. Defendant, who resided
near London, had a jewellei-'s shop
at Lewes managed by A., who gave
orders at Lewes for articles to be
sent to the shop. Plaintiff, who
resided in London, sent articles by
A.'s orders to Lewes. A. ran
aAvay from Lewes, came to Lon-
don, verbally ordered articles of
jewellery, and took them away,
telling plaintitf he was going to
take them to Lewes. Plaintitf
had no notice of withdrawal of
agency. Held, that there was
evidence upon which the jury
might find A. to be defendant's
general manager. But see 3 H. &
N. 794.

Smith V. McGnire (1858), 3 H.
& N. 501 ; 27 L. J. Ex. 465. De-
fendant liable on charter-party
signed by person whom he had
left in charge of his business,
although that person signed " per
pro," and had received special in-
structions, which he exceeded.

Howard v. Sheicard (1866), 12
Jnr. N. S. 1015 ; 36 L. J. C. P.
42 ; L. R. 2 C. P. 148. p. 245.

IFalker v. Great JVestern Rtj Co.
(1867), L. R. 2 Ex. 228 ; 36 L. J.
Ex. 123 ; 16 L. T. N. S. 327.
Defendants liable for services of
surgeon employed by their general
manager to perform an operation

No Authority.
servant, a common diover, to
sell in market overt ; not general
authority to sell elsewhere. —
Rolfe, B.

Cox v. Midland Rtj. Co. (1849),
3 Ex. 268. Defendants not liable
i'or surgical attendance on injured
passengers ordered by station-
master. But query. To same ef-
fect, Montgomery v. North British
By. Co. (1878), 5 R. 796.


Authority. No Authority.

on a servant iujured by an ac-

Langan v. Great Western Ry. Co.
(1874), 30 L. T. N. S. 173, Ex.
Cli., atlirminu 26 L. T. N. S. 077 ;
!>. 245.

Beer V. London ct- Paris Hotel
Co. (1875), L. B. 20 Ecj. 412.
Secretary of conipauy authorised
agent to execute contract of sale,
both within Statute of Frauds and
Coiupauies Act, 18G7.

As to servant's authority to give
receipts, Thorohl v. Smith (1700),
1 1 j\Iod. 87 ; Bridges v. Garrett
(18G9), 38 L. J. C. P. 242 ; and
C'ole)rucn^v. Eiehes (1855), 16 C. B.
104. As to tender to servant
being ec^uivalent to tender to
master, Mqffatt v. Parsons (1814),
5 Taunt. 307 ; and Wilmott v.
Smith (1828), Mood. & Malk. 238.
As to admissions by servants.
Garth v. Howard (1832), 8 Bing.
451 ; and Great Western Ry. Co. v.
Willis (1865), 34 L. J. Ch. 195.

servants' liability to third persons.

Servants iuciir no liability on contracts made
throngh them if they contract as their masters'

Servants are subject to the ordinary liabilities of agents.
They are not Hable if they contract as agents, but if they
contract as principals — if they pledge their own credit, if
they exceed their authority, or if they contract without
authority, they are personally answerable (a). If, in entering
into a contract, a servant do not disclose the fact that he
is acting for his master, those with whom he deals may sue
either him or his master. To whom credit was given will be
a question for a jury if the servant be sued (6). The settled
principle is that " persons who induce others to act on the
supposition that they have authority to enter into a binding
contract on behalf of third persons, on it turning out that
they have no such authority, may l)e sued for damages for
the breach of an implied warranty of authority " (c).

(a) Ch/^rry V. Bank of Australasia vian v. Junes, 9 Jiir. (1845), 454.

(1869), 38 L. J. r. C. 49 ; 17 W. K. Apparently, according to tlie autlio-

1031 ; Story on Agencj^ sec. 264. rities, a servant would be ro.spoii.sible

{b) Fisher v. Marsh, 34 L. J. Q. P.. when lie entered into a contract under

177. the belief, bond fide but erroneous,

(c) Cockburn, C.J. in Jtidiardson that he had authority ; Pianddl v.

V. WilliamsLm (1871), L. K. 6 Q. B. Trimm (1856), 18 C. B. 786 : 25 L.

p. 279, and 40 L. J. Q. B. 145, re- J. C. P. 307 ; Smoutv. Ilbimj (1842),

ferring to Collcn v. Wriqht, 7 E. & 10 M. & W. 1 ; Kehicr v. Baxter

B. 301 ; 26 L. J. Q. B. 47 ; 8 E. & (1866), L. E. 2 C. P. 174.
B. 647 ; 27 L. J. Q. B. 215 ; Doiun-



A servant is not liable to tliird persons for negli-
gence or acts of non-feasance or omission, but he is
liable for acts of misfeasance.

This distinction has been established since 1701, when it
was stated by Holt, C. J., in Lane v. Cotton (d). It has
been justified on various grounds. Thus, it is said that it is
a consequence of the fact that there is no privity between
the servant and the party injured. "In respect to non-
feasances, or mere neglects in the performance of duty, the
responsibility must therefore arise from some express or
implied obligation between particular parties standing in
privity of law or contract with each other, and no man is
bound to answer for any such violations of duty or obliga-
tion except to those to whom he has become directly bound
or amenable for his conduct " (e).

When a servant sold goods wrongfully or, in other words,
was guilty of conversion, he was held liable as a tort feasor,
and he was not excused because he disposed of them for his

{d) 12 Mod. 488. The exact limits omissions of duty in the course of his

of the doctrine arc hard to define, employment." A servant keeping the

and the authorities are not at one. key of a room in wliicli he knows a

Mr. Wood thus states the rule recog- man is imprisoned, is snid to be a

iiised in America at p. 674 of his trespasser; Bro. Abrd. "Trespass,"

"Lawof Master and Servant": "Tlie 133, 256. The true distinction is

servant is never liable to third ])er- perhaps not between misfeasance

sons for his failure to perform his and nonfeasance, but between duties

master's obligations ; but for his own arising solely out of contracts, and

wrongful or iiegligent acts he is liable duties which the law will imply,

to third persons injured thereby, indei)endently of any contract. See

either alone or jointly with his J)irkson v. Heutcr's 'Telegraph Co.

master." Mr. Wharton, on the other (1877), L. R. 2 C. P. D. 602; 46

hand, states that the servant is not L. .1. C. V. 197 ; 35 L. T. 842 ;

liable where there is negligence, but L. K. 3 C. V. D. 1 ; 47 L. J. C.

is so when malice exists. Story thus I'. 1 ; 37 L. T. 370 ; Alton v. Mid-

states the rule : "The agent is also land Ry. Co. (1865), 19 0. B. N.

personally liable to third persons for S. 213; 34 L. J. C. P. 292; and

liis own misfeasances and positive I'lnyford v. United Kiiuidom Electric

wrongs ; but he is not in general (for Telegraph Co., L. K. 4 Q. B. 706.

thfre'are exceptions) liable to third {r) Story on Agency, sec. 309.
persons for his own nonfeasance or

servants' liability Tf) THIRD PERSONS. 255

master's use (/<-). So, too, a servant was held guilty of con-
version of certain goods in the following circumstances : the
goods of a bankrupt were sent after bankruptcy to the de-
fendant, a clerk in the employment of one Heathcote, and
the defendant delivered them to Heathcote. The clerk, it
was held, was guilty of conversion, though he acted from
unavoidable ignorance, and for his master's benefit (l). On
the other hand, refusal by a servant of an insurance com-
pany to deliver up to the j^laintiff goods, the property of
the plaintiff, in a warehouse, of which the servant kept the
keys, was not conversion (Jc).

It has been already stated that a servant who executes un-
lawful orders will be liable. Individual expressions to the
contrary in old reports cannot be regarded as law (/).

" Can it be maintained as a proposition of law," said
Westbury, L. C, in Cidlen v. Thomj^son's trustees (m),
" that a servant who knowingly joins with and assists his
master in the commission of a fraud, is not civilly respon-
sible 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

(/() Perkins v. Smith (1752), and Lee v. Baycfi (1856), 18 C. B.

S;iyer, 40. 607. In the last mentioned case,

(i) Cary\. JFcbstcr {1716), 1 Stra. Jervis, C.J., observed: "As between

480. An action against a clerk by a master and servant, or perhaps as

jK'rson who liad paid him money ; between principal and agent, where

the defendant had paid it over to his the servant or agent receives from

employer, but did not make further his master or his principal goods,

entry ; no action. But if he had not which belong to a tliird person, on

paid it over, the plaintiff would have their being demanded of him by such

had his ojitiou cither to charge liim third person, he is entitled to say :

or the company. " A conclusion no ' I received them from my master or

doubt correct, whatever may be my principal ; and I re(|uire a rea-

thought of the reason that the sonable time to ascertain whether

plaintiff ' may charge ' the servant, the party making the demand is the

because till the money is paid over, real owner;' and such (jualified re-

the servant receives it to his use." fusal would not be evitlence of a

Stcj)hcns V. Elwall (1815), 4 ^I. & conversion, so as to render him

S. 259 ; Craneh v. White (1835), liable."

1 Scott, ;U4. AVhat would be con- {k) Alexander v. Southe;/ (1821),

version in a principal may not be 5 B. k Aid. 247.

such in a servant. See Mires v. {!) Story on Agency, see 310.

Solebay, 2 Jlod. 245 ; Alexander v. \m) (1862), 4 Macq. 424 ; R. y

Southeij (1821), 5 B. & Aid. 247; 2f utters {ISQ5), Si L. J. -M. C. 5i.


that lie acted 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 connnitting a fraud."

In Mill V. Hairke {n), it was held that a surveyor required
b}' statute to obey the orders of a higlnvay board Avas liable
for trespasses committed in the course of obeying the orders
of the Board. So, too, it is said that if a clerk of works
who superintends the erection of buildings give directions
which result in the darkening of ancient lights, he will be
liable (o).

It is laid down in an American case ( 2^) that one servant
cannot maintain an action against another for negligence,
while they are engaged in a common employment ; and in
Southcote V. Stanley (q), there is a dictum by Pollock, C. B.,
to the same effect. But the reasoning upon which this
decision proceeds is open to question, and has never been
acted upon in this country.

A master who suffers damage by reason of his servant's
negligence or misconduct may, of course, bring an action
against him (r).

(n) (1875), Ti. R. 10 Kx. 92; 44 (r) C'ountrs.t of Snlo}i v. Crompton

L. J. Ex. 49. (ItJOO), Croke, Eliz. 7o7 (action of

(o) Wihonx. Pc<o (1821), 6 Jloor. against shejihenl, who killod

43. Compare Stone v. Cctrtivriylit slieep intrusted to liis charge) ;

(1795), 6 T. R. 411. Hussey v. Pacy (1666), 1 Lev. 189 (a

{p) Albro V. Jaquith (1855), 4 servant Avho knowingly caused liis

Gray, 99 ; Wood, 675. master to break a certain covenant,

{([) (1856), 1 H. k N. 250. See liable to an action on the case):

Wrirjht \.' Roxhxmih (1864), 2 M. Srrragr. v. Jl'alihcic aim), 11 Mod.

748, where the contrary was decideil. 135 ; Story on Agency, sec. 310.



A MASTER is liable to third person for his servant's
tortious acts in the coui*se of his employment.

The principle is expressed in the authorities in many
ways. For example, it is said, "the master is answerable for
the act of his servant, if done by his command, either ex-
pressly given or implied" (a) ; a statement of the law which
is open to exception, because, as will be seen, a master may
be responsible for acts done contrary to his commands.
Sometimes it is said, " the law casts upon the master a lia-
bility for the act of his servant in the course of his employ-
ment " (h), or the master is " considered as bound to
guarantee third persons against all hurt arising from the
carelessness of himself, or of those acting under his orders,
in the course of his business " (c). Masters, it is also said,
are liable for the conduct of their servants when " acting
within the scope of their authority or the normal duties
of their employment " (d) ; when " actually engaged on
their master's business " (e), or when acting " as their
agents" (/), "with their master's authority, and upon their

(a) Blackstone, 1 Com. 417. 8 C. P. 563.

(b) "VVilles, J., in Limpus v. [d) Sterais v. Woodu-anl (1831),
General Omnibus Co. (1862), 1 H. & 50 L. J. Q. B. 231.

C. 539. (c) AVilles, J., in Patten v. Rea

(c) Lord Cranworth, in Bartonshill (1.857), 2 C. B. X. S. C07.
Coal Co. V. Rcid (1858), 3 Macq. (/) Williams, J., ditto.
283 ; Burns v. Potdson (1873), L. R.


business " {g) ; " for negligences and omissions of duty of their
servant, in all cases within the scope of his employ-
ment " (/t), "ill the ordinary course of business " (i), "in
the course of the exercise of their duties " (/,), "in the
course of the service and for his (the master's) benefit" {I),
in the master's business and " within the scope of the pro-
bable authority which must be supposed to be given to the
servant " (m), " within the scope of the power or confidence
reposed in the servant" {n), or "in the particular or general
employment of a servant" (o). All of these expressions are
somewhat ambiguous, though they have been elucidated in a
long series of decisions. They arc various modes of express-
in^r the fact that, in the case of masters of servants, the
maxim, culjm tenet suos auctores, does not hold good ; that
there is an exception to the general rule, that no one is
responsible for any conduct but his own ; and that masters
are answerable to third parties or strangers for the acts of
their servants when engaged in or about their business (2))-

This liability is not confined to acts of negligence, though
they are the torts for which masters are most frequently held
responsible. The liability extends to all other torts — for
example, to fraud — if committed within the scope of a ser-
vant's duties.

The rule which is now established is, to quote the words of
Willes, J., in Bariulch v. The EmjlhU Jolnt-Stod; Banh{q)—
an action against a bank for fraudulent misrepresentation on
the part of its manager—" that the master is answerable for
every such wrong of the .servant or agent as is committed in
the course of the service and for the master's benefit, though

{g) Cockburn, C.J., in ratten v. Ilea IJ. 2 Ex. 2.59.

(1857), 2C. 15. N. S. 607. {m) T.aylcy, J., in A.-G. v. Sid-

(h) Story on Agency, s. 423. (Jo,i (1830), 1 Tyr. 41. , , ,

(t) Edimrds v. London and Nortli- {n) Mechanics Bank v. The Bank

Wrslcrn Rv. Co. (1870), L. K. :> V. of Columhui, 5 Whcaton, 326.

p_ 44.5 '' ■ („) Morkrnzir. v. MacLeod (1834),

\k) Walker \. South- Westcni By. 10 I5ing. 385.

Co. (1870), li. R. Tj C. p. 640. (;') See Appendix ?.. as to reasons

{,1) Willes. J., in Barvick v. for the rule.

English Joint Stock Bank (18G7), L. ('/) (18<^7) L. 1!. 2 Ex. 259.


no express coniniand or privity of the master bo proved."
This statement of the law has not been universally or readily
acquiesced in. Several judges have been reluctant to admit
that it is true of certain torts, a.nd in particular of fraud.
AVhy should A. be responsible for the false statements of B,
which he never in fact authorised, and which may be contrary
to his wishes ? Fraud without any fraudulent mind in the
person who is made answerable for it, seems nonsensical.
'•' I do not understand legal fraud," said Bramwell, L. J.,
in Weir v. Bell (r) ; "to my mind it has no mora meaning
than legal heat or legal cold, legal light or legal shade." It
is, however, too late to question the doctrine stated in
Barwick v. English Joint- Stock Bank. It is in accordance
with a long series of decisions beginning with Hern v.
Nichols (s). Mr. Justice Willes's statement of the law has
frequently been cited with approval (t) ; and it has been
acted upon more than once by the House of Lords and the
Privy Council (u). The doctrine may rest upon a fiction ;
but if so, it is a fiction in accordance with others which are
well recognised — the doctrine, for example, that notice to the
agent may be notice to the principal, and that a servant's know-
ledge may sometimes bo treated as the master's {x). It is as
easy to admit that A., though morally innocent, is legally
guilt}'- of fraud through his servant or agent, as it is to admit
that A. has been negligent throagh his servants, when in point
of fact he has not been wanting in prudence, and when they
have done in their folly that which he in his wisdom forbade.
The rule just stated applies to corporations or companies.

(?•) (1877), L. R. 3 Ex. D. 238. Steavi Navigation Co. (1864), 33 L.

(a-) (1701), 1 Salk. 289. J. Q. 15. 310 ; 10 L. T. N. S. 844 ;

[t) Mackayv. Commercial Bank of 12 W. R. 1080 ; 10 Jur. N. S. 1199

New Brunswick (19>1 i), L. R. 5 P. C. In his criticism of tho judgment in

.H94 ; Sioift V. Wintcrbotham (1873), Barwick v. The Enrjlish Joint-Stock

L. R. 8 Q. B. 244. Bank, Bramwell, L.J., suggests as

(u) Bank of New South Wales v. "the true ground," " tliat every

Owston (1879), L. R. 4 Ap. 270; and person who authorises another to act

Houldsworth v. City of Glasgow Bank for him in the making of" any con-

(1880), L. R. 5 Ap. 317. tract, undertakes for the a])sence of

(./:) Baldwin v. Cassell'X (1872), fraud in the execution of the autho-

L. R. 7 Ex. 325; Stiles v. Cardiff rity given."

s 2


It extends to companies or corporations — such as Dock
Trusts— entrusted by the State with the performance of cer-
tain (Uitics, althongh the revenues are not appropriated to
the use of the individual corporators, or to that of the cor-
poration itself (?/). Companies have been held responsible
for creating a nuisance, such as obstructing a highway (z) ;
for publishing by telegram a libel (a) ; for wrongful arrests
or malicious prosecutions (b) ; for wrongful detaining bank
notes (c) ; for wrongful assault by their servant (e) ; for
reckless driving (/) ; and for infringing a patent (g).

There was a reluctance, especially in the Chancery Courts,
to impute to companies the frauds of their directors or ser-
vants. How could directors, it was asked, be the agents of the
company, their employer, to cheat or deceive ? In Re North

Online LibraryJohn MacdonellThe law of master and servant. Part I.--Common law. Part II.-- Statute law → online text (page 27 of 77)