of its destruction or injury by its servant, the amount of damage to which the carrier is liable at the suit of the owner, is precisely the same as that to which the servant is liable at the suit of the carrier. And upon this fact the counsel for defendant base their claim that the plaintiffs should first have their liability and the exact amount of it established in a suit at law before they could maintain a suit against the defendant, but the reason of the thing is wholly against this claim. In the first place, if the plaintiffs were liable to the owner of the piano, it is absurd to require the owner to bring a suit, and the plaintiffs to defend against it, and finally pay, after judgment and with costs, what they were perfectly willing to pay at the outset, and what the judgment would show they were legally bound to pay. And in the next place, the judgment would not establish the liability of the defendant. That, as we have seen, would stand upon its own grounds, and his negligence, on which alone his liability would rest, would not even enter into the suit against the plaintiff as a matter for consideration. He could still, in the suit against him, deny the fact of his negligence, and could prove the amount of the damage. All this he could do if the plaintiff had settled with the owner without suit. If in such settlement, they had paid the owner more than the actual damage, such payment would not have bound the defendant. He would be liable to them only for the actual damage. If, however, they had settled with the owner for less than the real damage, they could recover of the defendant no more than the damages paid. The damage which the defendant is to pay is the actual damage to the plaintiff. That, of course, cannot be greater than the sum they have had to pay, though it may be less, if they have unnecessarily, and of their own folly paid more than they were obliged to pay. They were bound to pay the actual damage done to the piano, and if they got off with paying less than they were themselves damaged, so much less, and could recover only such reduced sum from the defendant.

Until the plaintiff had settled with the owner it is to be sumed that they will be compelled, either upon a voluntary settlement, or upon suit, to pay the owner the actual damage. If the defendant had reason to suppose that a settlement could be effected for a less sum, he could himself settle with the owner,

and save the plaintiff from the necessity of paying the damages at all; and this it would be equally his duty and his interest to do. We think there is no error in the judgment complained of. In this opinion the other Judges concurred.

Master's Liability to Others for Servant's Torts.

SINGER MANUFACTURING COMPANY v. RAHN.

132 U. S. 518-524. 1889.

In error to the Circuit Court of the United States for the district of Minnesota to review a judgment for the plaintiff in an action to recover for personal injuries caused by defendant's servant's carelessly driving a horse and wagon against her. Affirmed.

Opinion below, 26 Fed. Rep. 912.

Statement by Mr. Justice GRAY.

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 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 sewing machines on commis. sion, and not otherwise, for the defendant. The replication denied the allegation of the answer.

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

"1. 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 Machine, five dollars for each and every acceptable sale of the new machine sold by him; and in addition to said $5 the 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 $5 on each acceptable sale, shall be deemed a selling commission.

"2. 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.

"7. 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.

"8. The said second party agrees to employ himself under the direction of the said Singer Manufacturing Company, and under such a rule and instructions as it or its manager, at Minneapolis shall prescribe and in all respects to comport himself to the best interest to 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.

"10. It is further agreed that if said second party sell any other than the machines furnished to him by the said first party it shall work a forfeiture of any commission that shall accrue under this agreement, if violated prior to the termination of the

same.

"12. 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 a 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 of the sum of $10,000, upon which judgment was rendered; and the defendant tendered a bill of exception, and sued out this writ of error.

Mr. Justice GRAY delivered the opinion of the court. The general rules that must govern this case are undisputed, and the only controversy is 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 person injured by negligent act 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, 56 U. S. 14 How. 468, 486 (14; 502, 509). 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 results to be accomplished, or, in other words "not only what shall be done, but how it shall be done." Railroad Co. v. Hanning, 82 U. S. 15, Wall. 549, 656 (21; 320, 223).

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 purchaser, 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 is 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 commission to be paid him, ågrees to give his whole time and services to the business with 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 a third person 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. Linneham v. Rollins, 137 Mass. 123; Regina v. Turner, 11 Cox, Crim. Cas. 551. Judgment affirmed.

WAY v. POWERS.

57 Vt. 135. 1884.

Case for negligence, Heard on a referee's report, December term, 1883, Caledonia County, Ross, Jr., presiding.

Judgment for the plaintiff against Abner H. Powers; but judgment that Jonathan Powers recover his costs. The referee found in part:

The opinion of the court was delivered by ROYCE, Ch. J.