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Opinion of the Court.

western Railway, 4 Exch. 243; Steele v. Southeastern Railway, 16 C. B. 550 ; Jones v. Liverpool, 14 Q. B. D. 890.

Mr. W. P. Clough, Mr. John W. Willis and Mr. Charles A. Ebert, for defendant in error, submitted on their brief, citing: Pawlet v. Rutland &c. Railroad, 28 Vermont, 297; Michael v. Stanton, 3 Hun, 462; Dalyell v. Tyrer, El. Bl. & El. 899; Blake v. Ferris, 5 N. Y. (1 Selden) 48; S. C. 55 Am. Dec. 304; Regina v. Turner, 11 Cox Crim. Cas. 551; Fenton v. Dublin Steam Packet Co., 8 Ad. & El. 835; Burgess v. Gray, 1 C. B. 578; Schwartz v. Gilmore, 45 Illinois, 455 ; S. C. 92 Am. Dec. 227; Fink v. Missouri Furnace Co., 10 Missouri App. 61; S. C. 82 Missouri, 276; Speed v. Atlantic & Pacific Railroad, 71 Missouri, 303; Huff v. Ford, 126 Mass. 24; Carter v. Berlin Mills, 58 N. H. 52; Forsyth v. Hooper, 11 Allen, 419; City of St. Paul v. Seitz, 3 Minnesota, 297; S. C. 74 Am. Dec. 753; McGuire v. Grant, 1 Dutcher (25 N. J. Law) 356; S. C. 67 Am. Dec. 49; Quarman v. Burnett, 6 M. & W. 499; Brackett v. Lubke, 4 Allen, 138; S. C. 81 Am. Dec. 694; Campbell v. Lunsford, 88 Alabama, 512; Sadler v. Henlock, 4 El & Bl. 570; Blake v. Thirst, 2 H. & C. 20; Railroad Co. v. Hanning, 15 Wall. 649; Faren v. Sellers, 39 La. Ann. 1011; Linnehan v. Rollins, 137 Mass. 123; Cincinnati v. Stone, 5 Ohio St. 38; Erie v. Caulkins, 85 Penn. St. 247; Edmundson v. Pittsburgh &c. Railroad, 111 Penn. St. 316; Allen v. Willard, 57 Penn. St. 374; Patten v. Rea, 2 C. B. (N. S.) 606; Venables v. Smith, 2 Q. B. D. 279; Joslin v. Grand Rapids Ice Co., 50 Michigan, 516; Mulvehill v. Bates, 31 Minnesota, 364.

MR. JUSTICE Gray, after stating the case as above reported, delivered the opinion of the court.

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

Opinion of the Court.

neglect, or even if he disapproved or forbade it. Philadelphia & Reading Railroad v. Derby, 14 How. 468, 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. 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 by the company to Corbett, 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 might, if it saw fit, 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

Opinion of the Court.

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. Railroad Co. v. Hanning, above cited; Linnehan v. Rollins, 137 Mass. 123; Regina v. Turner, 11 Cox Crim. Cas. 551.

Judgment affirmed.

SUGG v. THORNTON.

ERROR TO THE SUPREME COURT OF THE STATE OF TEXAS.

No. 1141. Submitted December 9, 1889. – Decided December 23, 1889.

There is color for a motion to dismiss a writ of error to a state court for

want of jurisdiction if it appear that no Federal question was raised on the trial of the case, but that it was made for the first time in the highest appellate court of the State sitting to review the decision of the case

in the trial court. The provision in the Revised Statutes of Texas that when service is made

in an action against a partnership upon one of the firm the judgment may be rendered against the partnership and against the member actually served, ($ 1224,) and the provision directing the manner of the service of process upon a non-resident or an absent defendant ($ 1230) are not

repugnant to the Constitution of the United States. A judgment in Texas against a partnership, and against one member of

it upon whom process has been served, no process having been served upon another member who is non-resident and absent, binds the firm assets so far as the latter is concerned, but not his individual property.

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MOTIONS TO DISMISS OR AFFIRM. The case is stated in the opinion.

Mr. William Warner, Mr. 0. I. Dean and Mr. James Hagerman for the motions.

Mr. Sawnie Robertson and Mr. W. 0. Davis opposing.

Mr. CHIEF JUSTICE FULLER delivered the opinion of the court.

Opinion of the Court.

James T. Thornton filed his petition in the District Court of Cooke County, Texas, against J. W. Sacra, J. W. Wilson, Isaac Cloud and E. C. Sugg & Bro., averring the latter to be a copartnership composed of E. C. Sugg and Iker Sugg, and that E. C. Sugg resided in Tarrant County, Texas, and Iker Sugg in Johnson County, Wyoming Territory, to recover on a promissory note for $26,964.05, purporting to have been signed by Sacra, Wilson, Cloud and E. C. Sugg & Bro. The petition prayed for a citation to the defendants and a notice to the defendant Iker Sugg, as provided by section 1230 of the Revised Statutes of Texas, and for judgment for the amount of the note, and for costs, and for general and special relief. All of the defendants were served in Texas except Iker Sugg, to whom notice and a certified copy of the petition were delivered under the statute, in Wyoming Territory.

Sections 1224, 1230 and 1346 of the Revised Statutes of Texas are as follows:

“ Art. 1224. In suits against partners the citation may be served upon one of the firm, and such service shall be sufficient to authorize a judgment against the firm and against the partner actually served.”

“Art. 1230. Where the defendant is absent from the State, or is a non-resident of the State, the clerk shall, upon the application of any party to the suit, his agent or attorney, address a notice to the defendant requiring him to appear and answer the plaintiff's petition at the time and place of the holding of the court, naming such time and place. Its style shall be · The State of Texas,' and it shall give the date of the filing of the petition, the file number of the suit, the names of all the parties and the nature of the plaintiff's demand, and shall state that a copy of the plaintiff's petition accompanies the notice. It shall be dated and signed and attested by the clerk, with the seal of the court impressed thereon, and the date of its issuance shall be noted thereon ; a certified copy of the plaintiff's petition shall accompany the notice.”

“ Art. 1346. Where the suit is against several partners jointly indebted upon contract, and the citation has been served upon some of such partners, but not upon all, judgment may be ren

Opinion of the Court.

dered therein against such partnership and against the partners actually served, but no personal judgment or execution shall be awarded against those not served.” 1 Sayles' Texas Civil Statutes, 417, 418, 448.

Judgment was rendered by the District Court in these words:

“This day came the plaintiff by his attorney, and the defendants having failed to appear and answer in this behalf, but wholly made default, wherefore, the said James T. Thornton, plaintiff, ought to recover against the said J. W. Sacra, J. W. Wilson, Isaac Cloud and E. C. Sugg & Bro., a copartnership composed of E. C. Sugg and ‘Iker,' or J. D. Sugg, the said " Iker' Sugg and J. D. Sugg being one and the same person, and E. C. Sugg the partner served, defendants, his damages by occasion of the premises, and it appearing to the court that the cause of action is liquidated and proved by an instrument of writing, it is ordered that the clerk do assess the damages sustained by said plaintiff; and the said clerk now here having assessed the damages aforesaid at the sum of twenty-eight thousand one hundred and thirty-four dollars and ninety-nine cents; it is adjudged by the court, that the said plaintiff do have and recover of the said defendants, the sum of twenty-eight thousand one hundred and thirty-four dollars and ninety-nine cents, with interest thereon at the rate of ten per cent per annum, together with his costs in this behalf expended and that he have his execution.

“It is further ordered by the court that execution issue for the use of officers of court, against each party respectively for the costs by him in this behalf incurred.”

On December 5, 1885, J. D. Sugg filed a petition to vacate the judgment so far as it affected him, and his individual property, and so far as it affected the property of the partnership of E. C. Sugg & Bro., upon the grounds : That the note was not given for a partnership liability of his firm, but that the firm name was signed thereto as surety for Sacra, and without authority, it being outside the scope of the partnership; that the judgment did not dispose of the case as to him; that his name was not " Iker” or I. D. Sugg, but J. D. Sugg,

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