doing, but it is not the not doing of that which is imposed upon the agent merely by virtue of his relation, but of that which is imposed upon him by law as a responsible individual, in common with all other members of society. It is the same not doing which constitutes actionable negligence in any relation.' To the same effect are Lottman v. Barnett, 62 Mo. 159; Martin v. Benoist, 20 Mo. App. 263; Harriman v. Stowe, 57 Mo. 93; and Bell v. Josselyn, 3 Gray, 309.

"A case parallel to that now in hand is Campbell v. Portland Sugar Co., 62 Me. 552, where agents of the Portland Sugar Company had the charge and management of a wharf belonging to the company, and rented the same to tenants, agreeing to keep it in repair. They allowed the covering to become old, worn, and insecure, by means of which the plaintiff, was injured. The court held the agents were equally responsible to the injured person with their principals.

"Wharton, in his work on Negligence (sec. 535), insists that the distinction, in this class of cases, between non-feasance and misfeasance, can no longer be sustained; that the true doctrine is, that when an agent is employed to work on a particular thing, and has surrendered the thing in question into the principal's hands, then the agent ceases to be liable to third persons for hurt received by them from such thing, though the hurt is remotely due to the agent's negligence, the reason being, that the causal relation between the agent and the person hurt is broken by the interposition of the principal as a distinct centre of legal responsibilities and duties, but that wherever there is no such interruption of causal connection, and the agent's negligence directly injures a stranger, the agent having liberty of action in respect to the injury, then such stranger can recover from the agent damages for the injury. The rule, whether as stated by Mechem or Wharton, is sufficient to charge appellants with damages under the circumstances disclosed in this record. They had the same control of the premises in question as the owner would have had if he had resided in Chicago, and attended to his own leasing and repairing. In that respect, appellants remained in control of the premises until the door fell upon the deceased. There was no interruption of the causal relation between them and the injured man. They were, in fact, for the time being, substituted in the place of the owner, so far as the control and management of the property was concerned. The principle that makes an independent contractor, to whose control premises upon which he is working are surrendered, liable for damages to strangers caused by his negligence, although he is at the time doing the work under contract with the owner (Wharton on Negligence, sec. 440), would seem to be sufficient to hold appellants. The owner of cattle, who places them in the hands of an agister, is not liable for damages committed by them while they are under the control of the agister. It is the possession and control of the cattle which fix the liability, and the law imposes upon the agister the duty to protect strangers from injury by them. Ward v. Brown, 64 Ill. 307; Ozburn v. Adams, 70 id. 291.

"When appellants rented the premises to Mrs. Wheeler, in the dangerous condition shown by the evidence, they voluntarily set in motion an agency, which, in the ordinary and natural course of events, would expose persons entering the barn to personal injury. Use of the barn for the purpose for which it was used when the deceased came to his death, was one of its ordinary and appropriate uses, and might, by ordinary foresight, have been anticipated. If the insecure condition of the door fastenings had arisen after the letting to Mrs. Wheeler, a different question would be presented; but as it existed before and at the time of the letting, the owner or persons in control are chargeable with the consequences. Gridley v. Bloomington, 68 Ill. 47; Tomle v. Hampton, 129 Id. 379.

"Neither error is well assigned, and the judgment is affirmed." L. H. Boutell, for the appellant.

Cameron & Hughes, for the appellee.

PER CURIAM. We fully concur in the legal proposition asserted in the foregoing opinion, and deem it unnecessary to add to what is therein said in support of that proposition.

The judgment is affirmed!

SECTION II.

Unauthorized Contracts.

BALLOU v. TALBOT.

SUPREME JUDICIAL COURT OF MASSACHUSETTS, 1820.

[16 Mass. 461.]

THE declaration was "in a plea of the case for that the said Talbot, at, &c., on, &c., by his note of that date, by him subscribed, for value received, promised the plaintiff to pay him, or his order, $380 on demand with interest," &c.

Trial on the general issue, in May last, before JACKSON, J., at Taunton. The note produced was signed by the defendant, and, after his name, were added the words " agent for David Perry." The defendant objected that this evidence did not comport with the declaration. The plaintiff offered to prove, that the defendant was not authorized to make the note, as agent for Perry. The defendant contended that, if that was the fact, still the plaintiff could not recover in this action;

1 See Campbell v. Portland Sugar Co., 62 Me. 552 (1873).

Cases on conversion by agents are collected in 1 Ames & Smith's Cases on Torts 307-341.ED.

and that be should have brought a special action on the case, setting forth that the defendant undertook to act as agent, and pretended to have such authority, when he was not authorized.

The judge overruled this objection, intending to reserve the question for the consideration of the whole court. The trial proceeded, and the plaintiff obtained a verdict on the ground that the defendant was not authorized to sign the note, as agent to Perry.

If, in the opinion of the court, the plaintiff was entitled to recover under these circumstances, judgment was to be rendered on the verdict; otherwise the plaintiff was to become nonsuit, or such order made in the cause as to the Court should seem proper.

W. and F. Baylies, for the defendant.

Morton, for the plaintiff.

PARKER, C. J. The question in this case is not whether the defendant is liable for having undertaken to make the promise for Perry, but whether the note declared on is the note of the defendant.

It is obvious, from the signature, that it was neither given nor reIceived as the defendant's note. It is found by the jury, that he had no authority to sign it for Perry; but the legal inference from this fact is, not that it became his promise directly, but that he is answerable in damages for acting without authority. What is stated in the case of Long v. Colburn, as an intimation of the court, was undoubtedly a settled opinion, viz., that, in such case, a special action upon the case would be the proper action.

One way, and perhaps the best way, to ascertain whether a party is sued in the right form of action, is to see of what fact the declaration gives him notice, and whether that constitutes substantially the contract to which he is called to answer. In the case before us the defendant is charged with having made a promissory note to the plaintiff. The evidence produced is apparently the note of another. But he wrongfully made this note for the other. This is entirely new ground, of which the declaration gave him no notice, and which he cannot be expected to be prepared to answer.

Besides, if the note is to be considered as evidence of the defendant's own promise, he must pay according to the tenor of it; whereas, if he were sued for falsely assuming an authority, he might defend himself by showing that the person, for whom he assumed to act, had afterwards ratified his act, or that he had otherwise satisfied the debt for which the note was given, or perhaps, he might show that no debt was due for which the note was given, or that he had authority to make it. It is, in short, a proper subject for a special action, in which damages will be recovered according to the injury sustained.

In the cases cited by the plaintiff's counsel, the parties held personally liable, either made themselves so by the terms of the contract, though purporting to act for another, or they acted in certain capacities in which they had no right to bind the estate of those for whom they undertook to act. In the case before us, the promise was avowedly

made by the defendant for Perry; and it was matter of evidence, extrinsic to the contract, whether he had authority or not. The verdict is set aside, and the plaintiff must be called.

POLHILL v. WALTER.

KING'S BENCH.

1832.

Plaintiff nonsuit.1

[3 B. & Ad. 114.]

DECLARATION stated, in the first count, that J. B. Fox, at Pernambuco, according to the usage of merchants, drew a bill of exchange, dated the 23d of April, 1829, upon Edward Hancorne, requesting him, sixty days after sight thereof, to pay Messrs. Turner, Brade, and Co., or order, £140 16s. 8d. value received, for Mr. Robert Lott; that afterwards the defendant, well knowing the premises, did falsely, fraudulently, and deceitfully represent and pretend that he was duly authorized by Hancorne to accept the said bill of exchange according to the usage of merchants, on behalf and by the procuration of Hancorne, to whom the same was so directed as aforesaid, and did then and there falsely and fraudulently pretend to accept the same by the procuration of Hancorne; that the said bill of exchange was indorsed over, and by various indorsements came to the plaintiff, of which the defendant had notice; that the plaintiff, relying upon the said pretended acceptance, and believing that the defendant had authority from Hancorne, so to accept the bill on his behalf, and in consideration thereof, and of the indorsement, and of the delivery of the bill to him the plaintiff, received and took from the last indorsers the bill as and for payment of the sum of money in the bill specified, for certain goods and merchandises of the plaintiff sold to the indorsers; that when the bill became due, it was presented to Hancorne for payment, but that he, Hancorne, did not nor would pay the same, whereupon the plaintiff brought an action against Hancorne as the supposed acceptor thereof; and that by reason of the premises, and the said false representation and pretence of the defendant, the plaintiff not only lost the sum of money in the bill of exchange mentioned, which has not yet been paid, but also expended a large sum, to wit, £42 7s., in unsuccess fully suing Hancorne, and also paid £17 to him as his costs. The second count, after stating the drawing of the bill according to the custom of merchants, by Fox, as in the first count, alleged that the de

1 Acc.: Hall v. Crandall, 29 Cal. 567 (1866); Noyes v. Loring, 55 Me. 408 (1867); Bartlett v. Tucker, 104 Mass. 336 (1870).

Contra: Dusenbury v. Ellis, 3 Johns. Cas. 70 (1802); but this last case is disap proved in White v. Madison, 26 N. Y. 117 (1862). — ED.

fendant, well knowing the premises, did falsely and deceitfully represent and pretend that he, the defendant, was duly authorized by Hancorne to accept the bill according to the said usage and custom of merchants, on behalf and by the procuration of Hancorne, to whom the same was directed, and did accept the same in writing under pretence of the procuration aforesaid; that by various indorsements the bill came to the plaintiff'; that he, the plaintiff, relying on the said pretended procuration and authority of Hancorne, and in consideration thereof, and of the said acceptance, received and took the bill as and for payment of a sum of money in the bill specified, in respect of goods sold by the plaintiff. The count then stated the presentment of the bill to Hancorne and his refusal to pay, and averred that it became and was the duty of the defendant to pay the sum in the bill specified, as the acceptor thereof, but that he had refused. There was a similar allegation of special damage as in the first count. Plea, not guilty. At the trial, before Lord TENTERDEN, C. J., at the London sittings after Hilary term, 1831, it appeared in evidence that the defendant had formerly been in partnership with Hancorne, but was not so at the time of the present transaction. The latter, however, still kept a counting-house on the premises where the defendant carried on business. The bill of exchange drawn upon Hancorne was, in June, 1829, left for acceptance at that place, and, afterwards, a banker's clerk, accompanied by a Mr. Armfield, then a partner in the house of the payees, called for the bill. The defendant stated that Hancorne was out of town, and would not return for a week or ten days, and that it had better be presented again. This the clerk refused, and said it would be protested. Armfield then represented to the defendant that expense would be incurred by the protest, and assured him that it was all correct; whereupon the defendant, acting upon that assurance, accepted it per procuration of Mr. HanAfter this acceptance, it was indorsed over by the payees. On the return of Hancorne, he expressed his regret at the acceptance, and refused to pay the bill. The plaintiff sued him, and, on the defendant appearing and stating the above circumstances, was nonsuited. The present action was brought to recover the amount of the bill, and the costs incurred in that action, amounting in the whole to £196. The defendant's counsel contended that as there was no fraudulent or deceitful intention on the part of the defendant, he was not answerable. Lord Tenterden was of that opinion, but left it to the jury to determine whether there was such fraudulent intent or not; and directed them to find for the defendant if they thought there was no fraud, otherwise for the plaintiff; giving the plaintiff leave to enter a verdict for the sum of £196 if the court should be of opinion that he was entitled thereto. The jury found a verdict for the defendant. In the ensuing Easter term Sir James Scarlett obtained a rule nisi, according to the leave reserved, against which in the last term cause was shown by Campbell and F. Kelly.

corne.

Sir James Scarlett and Lloyd, contra.