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work: Sadler v. Henlock, 4 El. & Bl. 570; Warburton v. Great West. R. R. Co., L. R., 2 Exch. 30; Murray v. Currie, L. R., 6 C. P. 25; Murphy v. Caralli, 3 Hop. & C. 462; Butler v. Hunter, 7 H. & N. 826; Sproul v. Hemmingway, 14 Pick. 1. Sharswood, J., says: "If I employ a well-known and reputable machinist to construct a steam-engine, and it blows up from bad material or unskillful work, I am not responsible for any injury which may result, whether to my own servant or to a third person. The rule is different if the machine is made according to my own plan, or if I interfere and give directions as to the manner of its construction. The machinist then becomes my servant, and respondeat superior is the rule:" Ardesco Oil Co. v. Gilson, 63 Pa. St. 163; Godley v. Hagerty, 20 Id. 387; Carson v. Godley, 26 Id. 111; Du Pratt v. Lick, 38 Cal. 691; Overton v. Freeman, 11 C. B. 867. But it is not every reservation of power of control that will fix the liability upon the employer. The liability for the contractor's acts will not rest upon him because of the fact that he reserves the right to dismiss the contractor if he sees fit: Reedie v. L. & N. W. R. R., 4 Exch. 244; Blake v. Ferris, 5 N. Y. 48; Cuff v. N. & N. Y. R. R., 35 N. J. L. 17; Robinson v. Webb, 11 Bush, 466; Wray v. Evans, 80 Pa. St. 102; nor because he has the right to suspend or reorganize the work: Id.; nor because he may refuse to pay unless satisfied with the work: Allen v. Willard, 57 Pa. St. 374; nor because he employs a clerk to supervise the work, he not interfering in the manner of its construction: Brown v. Cotton Co., 3 Hop. & C. 511; Steele v. Southeastern R'y Co., 32 Eng. L. & Eq. 366; Wray v. Evans, supra; nor because he reserves the right to retain in his hands money sufficient to pay all damages that are not adjusted within thirty days from the time they are inflicted: Tibbetts v. Knox & Lincoln R. R. Co., 62 Me. 437; and see Corbin v. Mills, 27 Conn. 274; nor because he retains the right to discharge any of the contractor's men: Reedie v. L. & N. W. R. R. Co., supra. These reservations of partial control do not transform the contractor into a servant; but it will be observed that in the above cases the right is not reserved to direct the mode in which the work is to be done.

The employer may reserve the right to say what shall be done, but the contractor must have the right to say how it shall be done to relieve the employer from liability. Whenever the employer exercises any control over the mode of working, he is in fact a principal, and the parties performing the labor are his agents. Selden, J., referring to this distinction, says: "The object of the clause relied on was not to give the commissioner of repairs and officers named the right to interfere with the workmen, and direct them in detail how they should proceed, but to enable them to see that every part of the work was satisfactorily completed. It authorized them to prescribe what was to be done, but not how it was to be done nor who should do it," and the contractor only was held answerable: Kelly v. Mayor etc., 11 N. Y. 432. So, too, in Pack v. Mayor etc., 8 Id. 222, the court held, that the reservation of power in the officers to give further directions regarding the grading of a street was not such a reservation of control over the manner of performing the work as rendered the contractor and his workmen the servants of the corporation. The authority reserved by the employer was only as to the results of the work to be done, the contractor still having control over the method of doing it; and the reservation of that authority did not change the relation between them to that of master and servant.

But when the right to direct the mode of working is reserved in the em ployer, the relation is then that of master and servant: Schwartz v. Gilmore, 45 Ill. 455; Luttrell v. Hazen, 3 Sneed, 20; Chicago v. Dermody, 61 Ill. 431; Chicago v. Joney, 60 Id. 383; Kimball v. Cushman, 103 Mass. 194; Stone v.

Codman, 15 Pick. 297; Allen v. Willard, 57 Pa. St. 374; Murphy v. Caralli, 3 Hop. & C. 402; Quarman v. Burnett, 6 Mee. & W. 499; Murray v. Currie, L. R., 6 C. P. 24; Eaton v. E. & N. R. R. Co., 59 Me. 520; Chambers v. Ohio Life Ins. and Trust Co., 1 Disney (Ohio), 327; Forsyth v. Hooper, 11 Allen, 419; Hunt v. Penn. R. R. Co., 51 Pa. St. 475; Callahan v. Burlington R. R. Co., 23 Iowa, 562. The fact that the contractor is paid by the employer is not sufficient to divest him of the character of a contractor: Corbin v. American Mills Co., 27 Conn. 274; and it would seem that if the injury arises out of the particular matter over which the employer has reserved the control, he would be chargeable as master: Allen v. Hayward, 7 Q. B. 975.

3. Employer is Liable if the Acts Authorized Necessarily Work Injury.—Appleton, J., laid down the rule in these words: "If the injury was the natural result of the work contracted to be done, and it could not be accomplished without causing the injury, the person contracting for doing it would be held responsible:" Eaton v. E. & N. R. R. Co., 59 Me. 520; S. C., 8 Am. Rep. 430. So where a railroad company authorized the blasting of rocks by their contractors upon their road, and one of the pieces of rock struck a house near by, damaging it thereby, the company was held liable. There was no want of care in the manner in which the work was done, and the court predicated its decision upon the fact that the injury was a necessary result of the work. Having authorized the work, they authorized all acts necessary or incident thereto, and therefore became liable for the injury: Carman v. L. & Ind. R. R. Co., 4 Ohio St. 399; Teffin v. McCormack, 34 Ohio St. 638; Hay v. Cohoes, 2 Comst. 159. The same result is arrived at from the consideration of the contractor's liabilities. He has no voice in what the work shall be; the employer determines that; but he has a voice in how the work shall be done; for injuries arising out of that over which he had control he would be liable, and only for such. The injury here arose out of the doing the work itself, and not out of the manner of doing it, which was all the contractor was responsible for. The contractor was therefore relieved of responsibility, and the employer properly made liable. But the contrary doctrine, based upon the opposite ground, was taken in another case. A building was injured in the vicinity of a railroad, by blasting done by those who had contracted to grade the road. The company was held not liable, the court refusing to assume that injury was a necessary consequence of blasting rocks in grading a railroad: Tibbetts v. Knox & Lincoln R. R. Co., 62 Me. 437. And where such damage arose from an overcharge in the blast, the contractor only was held responsible: McCafferty v. Spuyten Duyvil etc. R. R. Co., 61 N. Y. 178.

"The general rule is, that he who directs an act to which a tort is incidental is liable for the torts which are incidental to the act. 'Common justice,' said Clifford, J., ** 'requires the enforcement of this rule, as if the contractor does the thing which he is employed to do, the employer is as responsible for the thing as if he had done it himself; but if the act, which is the subject of the complaint, is purely collateral to the matter contracted to be done, and arises indirectly in the course of the performance of the work, the employer is not liable, because he never authorized the thing to be done;'" Whart. on Neg., sec. 186; Whart. on Agency, sec. 474; Caswell v. Cross, 120 Mass. 545; Water Co. v. Ware, 16 Wall. 566; and see Hale v. Sittingbourne R. R. Co., 6 H. & N. 488; Ellis v. Gas Co., 2 El. & Bl. 770; Newton v. Ellis, 5 Id. 770; Robbins v. Chicago, 4 Wall. 679; Chicago v. Robbins, 2 Black, 418. So, too, for the contractor's negligence, if such negligence is incidental to the act, the principal is liable in case: Gregory v. Piper, 9 Barn. & Cress. 591;

Seymour v. Greenwood, 6 H. & N. 359; and see Lesper v. Nav. Co., 14 Ill. 85; Palmer v. Lincoln, 5 Neb. 136; Batty v. Duxbury, 24 Vt. 155; Willard v. Newbury, 22 Id. 458.

4. Employer is Liable in Matters He is Bound to Take Charge of Himself, whether he contracts for the work to be done or not. This may arise from his having contracted or agreed to take charge of the work himself, or from the law implying such agreement or imposing on him a public duty. In such a case, he can not shift the responsibility from himself by employing a contractor to do the work for him. Thus, where an incorporated water company undertook to lay water-pipes in a city, agreeing to "protect all persons against damages by reason of excavations made by them in laying pipes, and to be responsible for all damages which may occur by reason of their employees on the premises," it was held that although the company had let the work out to a subcontractor, through the negligence of whose servants injury accrued to a person passing over the street, the company could be properly sued for damages: Water Company v. Ware, 16 Wall. 566. So, too, in an English case, plaintiff and defendant were the respective owners of two adjoining houses, plaintiff being entitled to the support for his house of defendant's soil. Defendant hired a contractor to pull down his house, excavate foundations, and rebuild the house; the contractor undertook the risk of supporting plaintiff's house, as far as might be necessary during the work, and to make good any damage and satisfy any claim arising therefrom. Plaintiff's house was injured in the progress of the work, owing to the insufficiency of the means taken by the contractor to support it. Plaintiff sued defendant for the damage. It was held that defendant was liable on the ground that, where one orders work to be executed on his own premises which, though lawful in itself, would naturally produce injury to others unless means were adopted to prevent it, he is bound to see to the doing of that which is necessary to prevent the mischief. The plaintiff had a right to the support by the soil excavated. The law allowed the defendant to remove it: Backhouse v. Bonomi, 9 H. L. C. 503; S. C., 34 L. J., Q. B., 181; but imposed on him the obligation-made him enter into an implied agreement to protect his neighbor in so doing, and he could not relieve himself from the responsibility by employing some one else to do the work for him: Bower v. Peato, L. R., 1 Q. B., 321; Gray v. Pullen, 5 B. & S. 970, 981; S. C., 32 L. J., Q. B., 169; S. C., 34 Id. 265; Tarry v. Ashton, L. R., 1 Q. B., 314; Pickard v. Smith, 10 C. B., N. S., 470; Fletcher v. Rylands, L. R., 3 H. L., 330. Where privileges are granted by the legislature, in the acceptance of them the body or individual accepts at the same time the liability for all injurious consequences which result from a failure to see that the privileges are exercised in strict conformity with the spirit and letter of the act conferring them. In Hale v. Sittingbourne R'y Co., 6 H. & N. 488; S. C., 30 L. J., N. S., Exch., 81, the defendants, a railway corporation, were empowered to construct a drawbridge across a navigable river, and were forbidden to detain any vessel longer than it was necessary to allow a train to cross and for the bridge to be opened; and for any detention longer than ten minutes the company were to be liable in damages. Contractors built the bridge, and while in their hands, by reason of some defect in the machinery, it could not be opened, and vessels were detained. The company was held liable. The court held, that by the act there was a duty cast upon the defendants which could not be shifted to a contractor, and besides, the mischief arose from the presence of the bridge itself, in consequence of the imperfectly doing the thing ordered to be done, and the person giving the order was responsible: Storrs v. The City of Utica,

17 N. Y. 104; Creed v. Hartman, 29 Id. 960; Mullen v. St. John, 57 Id. 567; Clark v. Fry, 8 Ohio St. 358; Congreve v. Morgan, 18 N. Y. 84; Congreve v. Smith, Id. 79; Shipley v. Fifty Associates, 106 Mass. 194; Milford v. Holbrook, 9 Allen, 21.

FARNSWORTH ET AL. v. CHASE.

[19 NEW HAMPSHIRE, 534.]

USAGE AND CUSTOM A DEFENSE.-In assumpsit for goods sold defendants may show that the bills were not marked, and that in such cases six months' credit was the custom among like dealers, and that the action

was prematurely brought.

UNIFORM, KNOWN, AND ESTABLISHED USAGE IS BINDING on the parties if proved, and is presumed to be part of the contract.

EXISTENCE OF CUSTOM OR USAGE IS A QUESTION OF FACT for the jury. DEPOSITION OF WITNESS RESIDING IN THE TOWN WHERE THE TRIAL takes

place is admissible if taken to be used in a town more than ten miles distant; and the case is continued to the next term at the place where the witness resides.

ASSUMPSIT for goods sold. The defense was that the goods were purchased on six months' credit, and that the suit was prematurely brought. Six months had not elapsed between the purchase of the goods and the filing of the writ. The defense introduced witnesses to show that by the custom of jobbers in Boston (to which class plaintiffs belonged) goods not purchased for cash were purchased on six months' credit where the bills were not marked. The bills for these goods were not marked. Plaintiffs objected to the admission of this evidence and to the competency of the answers, and afterwards introduced evidence tending to show that such was not the usage. Defendant introduced the deposition of Isaac Tompkins of Manchester, to which plaintiff objected, but it was admitted by the court. The opinion states the other facts necessary to understand the case. Under the instructions of the court, the jury found a verdict for the defendants, and plaintiffs appealed. Perley, Foster, and Farley, for the plaintiffs.

D. Clark, Cross, and C. G. Atherton, for the defendant.

By Court, GILCHRIST, C. J. Upon proof of the delivery of the goods, the plaintiff would be entitled to recover in this case, unless the evidence offered by the defendant be sufficient to take the case out of the ordinary principles of law.

He alleges that the usage among the dry-goods jobbers is to give a credit of six months where the goods are not paid for on delivery.

The first question is, What evidence is sufficient to prove the existence of such a usage? And what is the effect of the usage? A bill was drawn in the East Indies, payable to Campbell, or order, and by him indorsed to Ogilby, who indorsed it to the plaintiff. The defendant contended that the omission of the words" or order," was equivalent to restrictive words, limiting the payment, and that they must have been originally inserted by the indorser. The plaintiff contended that a bill was in its nature assignable. The defendant offered evidence that, by the custom of merchants, the acceptor was not liable upon such an indorsement.

It was held that the evidence was inadmissible, because the law was already settled for the plaintiff; that the custom of merchants was part of the common law of England, and that two cases (referred to in the opinion) settled that there was no such custom of merchants as the defendants allege: Edie v. East India Co., 2 Burr. 1216. But it was not held that the parties might not make the indorsement restrictive by special agreement, or by the customary course of some particular business, make an exception in their own case, leaving the general law to take its course: Cowen, J., Gibson v. Culver, 17 Wend. 309 [31 Am. Dec. 297]. In accordance with what was supposed to be the law in Edie v. East India Co., it was held in Frith v. Barker, 2 Johns. 335, that usage could not be received to contradict a settled rule of commercial law. So, also, is the case of Homer v. Dorr, 10 Mass. 26, although a different doctrine was held in Jones v. Fales, 4 Id. 245, and in the City Bank v. Cutter, 3 Pick. 414; and Mr. Rand thinks the decision of Homer v. Dorr, is "unaccountable:" Eager v. Atlas Ins. Co., 14 Id. 145 [25 Am. Dec. 363]. In Rushforth v. Hadfield, 6 East, 519, the question was as to the existence of a custom that carriers should have a lien on goods for their general balance. Six witnesses testified to particular instances where the custom had been applied. It was held that if a usage were so general as to furnish an inference that the party who dealt with a carrier had knowledge of it, and to warrant a conclusion that he contracted with the carrier on that ground, it would be sufficient, although it gave individuals a special privilege against the general body of creditors, in case of bankruptcy. Upon another trial of the same case, 7 East, 224, it was held that such a lien might be implied from a usage of trade so general that the jury must reasonably presume that the parties knew it, and adapted it to their dealings. In Richmond v. Smith, 8 Barn. & Cress. 9, the question

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