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Opinion of the Court.

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and general manager, and under the supervision of the defendant's engineer, the ditch was made ten feet wide and three feet deep, whereas the original contract annexed to the complaint was for a ditch eight feet wide and two feet deep. But the supposed variance between the complaint and the proof did not exist. The complaint did not proceed upon the written contracts alone, but upon the defendant's acceptance of the ditch and the subsequent settlement between the parties. And the court found, as facts, that the changes in the dimensions of the ditch were made with the knowledge and consent of Case, and before the execution of the supplemental agreement; that the ditch, when completed, was accepted by the defendant through its general manager, and had ever since been appropriated and used by the defendant; that the settlement between the parties was based upon estimates and measurements made by the defendant's engineer in charge of the construction of the ditch ; and that there was no fraud or misrepresentation

. on the part of the plaintiffs in or concerning that settlement.

The other exception was to the exclusion of testimony, offered by the defendant, of one Strahorn, its general manager at the time of the completion and acceptance of the ditch, and who had previously been its treasurer, tending to show that, at the time of the execution of the original contract, the plaintiffs were informed by him that Case had no authority from the defendant to contract for a ditch of larger dimensions than those specified in that contract. But it was a sufficient reason for excluding that testimony, that the offer was only to show that the plaintiffs were told that Case had no authority to vary the dimensions of the ditch, and was unaccompanied by any offer of evidence that Case had in fact no such authority, and at the time of the offer no evidence as to the actual authority of Case appears to have been introduced; and the offer to prove the information given to the plaintiffs was not renewed after the court had allowed Strahorn, against objection and exception by the plaintiffs, to testify that neither he nor Case had

any authority from the defendant's board of directors to enlarge the dimensions of the ditch, and that the board had never ratified the enlargement of the ditch.

Statement of the Case.

It does not appear that the whole evidence at the trial is recited in the statement of the case; and if it had been, this court, as already shown, could have considered it for the single purpose of passing upon the exceptions taken to the admission or rejection of parts of it, and not for the purpose of deciding whether the whole evidence supported the findings of the court.

The result is that the appellant has not been prejudiced by the rulings and decree below in any particular within the appellate jurisdiction of this court. Ordered, that the record may be withdrawn and amended by

procuring the signature of the clerk of the Supreme Court of the Territory to the certificate of authentication, and that, upon the return of the record 80 amended, the decree of that court be affirmed.

SINGER MANUFACTURING COMPANY V. RAHN.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE

DISTRICT OF MINNESOTA.

No. 122. Submitted November 20, 1889. - Decided December 23, 1889.

A person employed by a corporation under a written contract to sell sewing

machines, and to be paid for his services by commissions on sales and collections; the company furnishing a wagon, and he furnishing a horse and harness, to be used exclusively in canvassing for such sales and in the general prosecution of the business; and he agreeing to give his whole time and best energies to the business, and to employ himself under the direction of the company and under such rules and instructions as it or its manager shall prescribe; is a servant of the company, and the company is responsible to third persons injured by his negligence in the course of his employment.

The original action was brought by Katie Rahn, a citizen of Minnesota, against the Singer Manufacturing Company, a corporation of New Jersey, for personal injuries done to the plaintiff by carelessly driving a horse and wagon against her, when crossing a street in Minneapolis. The complaint alleged

Statement of the Case.

that the driver of the wagon was the defendant's servant and engaged in its business. The answer denied this, and alleged that the driver, one Corbett, was engaged in selling sewingmachines on commission, and not otherwise, for the defendant. The replication denied the allegations of the answer.

At the trial before a jury, after the plaintiff had introduced evidence to maintain the issues on her part, the defendant put in evidence the contract between itself and Corbett, headed “Canvasser's Salary and Commission Contract,” the material provisions of which were as follows:

“ 1st. The party of the first part agrees to pay unto the party of the second part, for his services in selling and leasing the Singer sewing-machines, five dollars for each and every acceptable sale of a new machine sold by him; and in addition to said five dollars a further sum of ten per cent of the gross price realized for said sales so made shall be paid to said second party, which, in addition to the five dollars on each acceptable sale, shall be deemed a selling commission.

“ 2d. The party of the first part shall pay unto the second party, for his further services, a collecting commission of ten per cent on the amounts or balances due from customers having purchased machines from him, payable as the cash shall be collected and paid over to the said first party or its authorized representatives at Minneapolis; and the said per centum so paid shall be in full for the services of said second party in collecting or other service rendered to date thereof."

“7th. The said first party agrees to furnish a wagon, and any damage to said wagon through negligence shall be at the cost and expense of said second party; and the said second party agrees to furnish a horse and harness, to be used exclusively in canvassing for the sale of said machines and the

general prosecution of said business; and said second party agrees to give his exclusive time and best energies to said business, and pay all expenses attending same.

“8th. The said second party 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, and in all respects to comport

Argument for Plaintiff in Error.

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himself to the best interests of the business of the said first party, and to neither sign nor to make use of the name of the said company in any manner whereby the public or any individual may be led to believe that the said company is responsible for his actions, said party's power being simply to make sales and turn over the proceeds to the said first party. If any special acts are required of said second party, the power to perform the same will be specially delegated.”

“10th. It is further agreed that if said second party sells any other than the machines furnished to him by said first party, it shall work a forfeiture of any commissions that accrue

а. under this agreement, if violated prior to the termination of the same.”

“12th. This agreement may be terminated by the first party at any time, and by said second party by giving first party ten days' notice in writing.”

The defendant requested the court to instruct the jury "that the contract under which Corbett, the driver of the horse causing the accident, was operating made him an independent contractor, and the defendant could not be liable for any damage done through his negligence, if he was negligent.” The court declined to give the instruction requested, and instructed the jury that the contract established the relation of servant and master between Corbett and the defendant, and that the defendant was answerable for Corbett's negligence while engaged in its service.

The jury returned a verdict for the plaintiff in the sum of $10,000, upon which judgment was rendered; and the defendant tendered a bill of exceptions, and sued out this writ of

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error.

Mr. Grosvenor Lowrey and Mr. Joseph S. Auerbach, for plaintiff in error, submitted on their brief.

The plaintiff in error never employed or contracted with Corbett to drive a horse ; his sole relation to the company was that of an independent contractor to canvass for sales, furnishing his own means.

The seventh section of the contract binds the company to

Argument for Plaintiff in Error.

furnish a wagon, and Corbett to furnish a horse and harness to be used exclusively in canvassing for the sale of machines and the general prosecution of that business. Corbett agreed to give his best energies to the business, and to pay all expenses.

Under these circumstances the loan of the wagon takes classification in the law only as a bailment. Such bailments taken alone do not create a relation of master and servant between bailor and bailee. Quarman v. Burnett, 6 M. & W. 499; Stevens v. Armstrong, 2 Selden, 435; Rapson v. Cubitt, 9 M. & W. 710; Carter v. Berlin Mills, 58 N. H. 52; Sproul v. Hemmingway, 14 Pick. 1; S. C. 25 Am. Dec. 350; Powles v. Hider, 6 El. & Bl. 207; Venables v. Smith, 2 Q. B. D. 279; King v. Spurr, 8 Q. B. D. 104; Schular v. Hudson River Railroad, 38 Barb. 653.

The effect of stipulations similar to those contained in the eighth section, subjecting a contractor to the direction, regulation and control of a co-contractor, has been often considered by the courts. Such control as is here reserved is not regarded as indicating the relation of master and servant, but, on the contrary, as being entirely consistent with the relation of principal and agent, or of contractor and co-contractor. The general distinction appears to be that he is a master (and subject to the doctrine of respondeat superior) who retains - and he is a servant (and capable to plead that maxim in defence) who surrenders — the right to determine the means or manner of accomplishing the object of the contract. He is a principal and not a master who retains the right to direct what ends shall be attempted, leaving the means to the management of the agent. Blake v. Ferris, 1 Selden (5 N. Y.) 48; S. C. 55 Am. Dec. 304; Pack v. New York City, 4 Selden, 222; Kelly v. Mayor of New York, 1 Kernan, 432; Allan v. Willard, 57 Penn. St. 374; Painter v. Mayor of Pittsburgh, 46 Penn. St. 213; Reed v. Allegheny City, 79 Penn. St. 300; Erie v. Caulkins, 85 Penn. St. 247; Edmundson v. Pittsburgh &c. Railroad, 111 Penn. St. 316; Cuff v. Newark & New York Railroad, 6 Vroom (35 N. J. Law) 17; Conners v. Hennessey, 112 Mass. 96; Wood v. Cobb, 13 Allen, 58; Samuelson v. Cleveland Iron Mining Co., 49 Michigan, 164; Reedie y. London & North

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