the careless driving of a horse and wagon by one Corbett, who was alleged to be the servant of the defendant, and engaged in its business. The defendant denied that Corbett was its servant, but alleged that he was engaged in selling sewing machines of the defendant's manufacture on commission, and was an independent contractor. The defendant put in evidence the contract under which Corbett was at work, the terms of which sufficiently appear from the opinion.

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, a 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.) 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. (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 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 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, 50 Am. Rep. 287; Regina v. Turner, 11 Cox Crim. Cas. 551.

Affirmed.

WHO MAY BE PRINCIPALS

ARMITAGE V. WIDOE

36 Mich., 134 (1877)

COOLEY, C. J. This action was brought to recover back $400 paid in the plaintiff's name on a contract for the purchase of lands. The contract was entered into April 24, 1875, and purports to be between Jesse C. Widoe as vendor and Henry Armitage as vendee. The purchase price was $13,000, of which $3,000 was payable on or before May 10, 1875, and the balance in ten annual installments of $1,000 each, with annual interest. Henry Armitage was about seventeen years of age at the date of the contract, and his name was signed to it by William H. Armitage, his father. The plaintiff by his own evidence, showed that he was ignorant of the contract at the time it was made, and never saw it until after this suit was brought; that he had no money to pay upon it and did pay none; and that his father told him what had been paid on the contract was to be recovered back in his, the son's name. The father was sworn as a witness, and testified that he made the contract and paid the money for his son, and that the son afterward, on being informed of it, assented to what had been done. There is some complaint of refusal or unwillingness on the part of the defendant to perform the contract on his part, and on the contrary he relies upon it as a valid contract, and offers to perform, but the suit appears to be grounded upon the right of an infant to disaffirm his contract and recover back what has been paid upon it.

I. Obviously the first question in the case is, how this infant who had nothing to do with the making of this contract in the first place,

has become entitled to any benefit under or because of it. If he has any right at all, it would seem that he must have acquired it in one of three ways; no other being conceivable. These are:

1. By virtue of the contract itself, made in his name, and which, though made without his knowledge, purported to assure to him rights which we may suppose were of value.

2. By the adoption of the act of his father in making the contract. 3. By accepting the contract as a gift from his father.

It is not claimed, as we understand it, that by the contract itself, independent of any action afterward taken, the infant would have had any rights at all. No contract is binding upon any party until he assents to it. Even a deed must be delivered and accepted; and much more must a contract be which contains onerous conditions, and assumes to bind the party to the payment of a large sum of money. Any suggestion, therefore, that the contract as made entitled the infant to any rights, may be dismissed from consideration. If when made it was a valid contract in favor of any one as vendee, it must have been in favor of the father, who, having made it in the name of another person without authority, might possibly have been compelled to perform it as his own contract, and been entitled to the benefit of it as his own. What rights there may have been by or against him, we need not consider as they are not involved, in this litigation.

II. If the contract became that of the infant through the adoption of the act of his father in making it, it must be because the infant has thus retrospectively made the father his agent. This, and this only, must be the force of the adoption; it is giving authority retrospectively, by claiming as his own that which without authority at the time was done in his name.

Had the infant in the first place undertaken to make another his agent to enter into the contract for him, the appointment would not have been valid. On the authorities no rule is clearer that that an infant cannot empower an agent or attorney to act for him: Whitney v. Dutch, 14 Mass., 457, 460; Lawrence's Lessee v. McArter, 10 Ohio, 37; Fonda v. Van Horne, 15 Wend. 631, 635; Trueblood v. Trueblood, 8 Ind. 195; Cole v. Pennoyer, 14 Ill., 158; Knox v. Flack, 22 Pa. St., 337; Sadler v. Robinson, 2 Stew. (Ala.), 520; Robbins v. Mount, 4 Robt., N. Y., 553. But if he cannot appoint an agent or attorney, it is clear he cannot affirm what one has assumed to do in his name as such. He cannot affirm what he could not authorize; Doe v. Roberts, 16 M. & W., 778, 781; Fonda v. Van Horne, 15 Wend. 631, 636; Trueblood v. Trueblood, supra. It would be extraordinary if a party who has no power to do a particular act could yet do it indirectly by the mere act of adoption

Such a doctrine would deprive the infant wholly of his protection; for one has only to change the order of proceeding, assume to act for the infant first and get his authority afterward, and the principle of law which denies him the power to give the authority is subverted. But such a doctrine is wholly inadmissible. The protection of infancy is a substantial one, and is not to be put aside and overcome by indirect methods. III. Did the infant become entitled to the contract by the gift of his father? That he did, might perhaps be claimed with some degree of plausibility had the payment made on the contract been the whole or the principal part of the purchase price. But the payment was in fact insignificant when compared with what remained to be paid. If the infant took the contract, he took it with all its conditions, one of which was the payment of the sum of $12,600 in the manner provided for therein. Now, there can be no presumption whatever that such a gift was for the benefit of the infant, and even if he were an adult, acceptance could not be presumed without some express evidence to establish it. In this case, instead of there being evidence that the infant accepts the contract, the suit itself assumes that he rejects it.

1

But treating the act of the father as a gift to his son, how does this entitle the son to demand and receive back the $400 paid on the contract? This sum never belonged to the son, and there is no pretense that it was ever given to him. The gift was of a right under the contract acquired by means of the payment of the sum. This right is offered to the son, and according to the testimony of the father, he at first accepts it, but then turns around and says in effect: "No, I will not take this right, but I will demand and have what was paid for it." If he may do this, then what he obtained from his father was not the contract itself, but the right to repudiate the contract. But the right to repudiate a contract is not the subject of gift at all. Besides, the father never had it to give. If the contract was valid in his hands, he could not repudiate it, and he could not empower another to do what he could not do himself.

In what has thus far been said, we have not touched upon the authority of the infant to disaffirm a contract of purchase before coming of age. If the contract had become his in any way, it would be, we take it, only a voidable contract, and in Dunton v. Brown, 31 Mich., 182, the right to disaffirm a voidable contract during infancy was denied. But it is enough in this case to show that the infant never became entitled either to the contract or to the moneys paid under it.

The judgment must be affirmed, with costs.

WHO MAY BE AN AGENT

LYON V. KENT

45 Ala., 656 (1871)

Kent, Payne & Co., the plaintiffs, were residents of Richmond, Va., on January 17, 1865, and owned certain cotton which was in the custody of their agent in Alabama. On the above mentioned date they gave to James W. Singleton, a citizen of Illinois, an order on said agent for all the cotton belonging to them in his hands. Singleton sold the cotton to one Guy, who stored it with Lyon & Co., defendants herein. Plaintiffs bring this action of detinue for the cotton, alleging that the order given to Singleton was given simply to enable him to take possession of the cotton as agent of plaintiffs and save it from confiscation as contraband goods. Defendants claim that the transfer to Singleton was absolute. There was judgment for plaintiffs and defendants appealed.

PETERS, J. The only negotiation that Singleton had with the firm of Kent, Payne & Co., touching the cotton, took place in January, 1865, at Richmond, Virginia. If there was a sale at all, or any contract entered into between Singleton, a citizen of Illinois, and Kent, Payne & Co., citizens of Virginia, by which any title or interest in the cotton was attempted to be passed from the one to the other, it was wholly void and incapable of ratification. No trading between these parties was then allowable without a permit of the government. And the President's pass was not sufficient for that purpose: McKee v. United States, 8 Wall., 163, 166; The Ouachita Cotton, 6 Wall., 521, 531; Brown v. Tarkington, 3 Wall., 377, 381; Kennett v. Chambers, 14 How. 38, 50. Then, the order alone warned all who looked upon it, who knew the domicile of the parties to it, that it could not be evidence of a legal title. And it was not, unconnected with other proof, a power to sell or dispose of the cotton.

Yet, though the order of itself was not evidence of a sale to Singleton, or a power to sell, it shows that the owners of the cotton had authorized him to take possession of it. This he could do as the agent of the owners. This was not forbidden to him or to them by law or the policy of the government. They could change the agency of the custody of their cotton from one person to another. And they could make any person, capable of acting as an agent, such agent to take possession of their property for them. They could transfer its custody from Browder to Singleton without a violation of law. The objection which might be supposed to exist to such an agency during the war, ceased as soon as · the war was ended; and its purpose being then legal, it might be legally