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prove to be, would not make the defendant liable. On general principles, and in the absence of any statutory provision or contract obligation, this principle is amply sustained by an impregnable volume of American cases cited by defendant's counsel. Stitt v. Little, 63 N. Y. 427; Arthur v. Griswold, 55 N. Y. 405; Mooney v. Miller, 102 Mass. 217; Wheeler v. Randall, 48 Ill. 182; Byard v. Holmes, 34 N. J. Law, 296; Hammatt v. Emerson, 27 Me. 308. They proceed upon the theory that when the truth is as accessible to the one party as the other, and there is no bad faith nor a warranty, but merely the expression of a belief or an opinion, although erroneous and acted upon by the other party, there is no liability. The English cases are not so decided, but seem to permit a recovery where the payor has not been guilty of laches, but has used some degree of care to ascertain the truth. Kelly v. Solari, 9 Mees. & W. 57; Bell v. Gardiner, 4 Man. & G. 23; Townsend v. Crowdy, 8 C. B. 492. And again, there may be a liability for money had and received where it has been paid under a mistake of facts, either by the payor or a mutual mistake by both parties, as where a contractor was to be paid a stated price per yard for paving a street, and an error was made in the measurement of the work and the party was overpaid. Neitzey v. U. S., 17 Ct. Cl. 127; Sharkey v. Mansfield, 90 N. Y. 227; Wheadon v. Olds, 20 Wend. 175. Where parties had mutual accounts between them, and one party, in making a statement of his account, by mistake omitted a charge of $5,000, and thereby overpaid the other party, held, he might recover it back. Lawrence v. American Nat. Bank, 54 N. Y. 435; National Bank v. Allen, 59 Mo. 313.

In the case at bar there are several provisions in the acts of congress, as well as the contract between the parties, which have a very important bearing on the question at issue. Section 3960 of the Revised Statutes reads as follows:

"Compensation for additional service in carrying the mail shall not be in excess of the exact proportion which the original compensation bears to the original service; and when any such additional service is ordered, the sum to be allowed therefor shall be expressed in the order, and entered upon the books of the department; and no compensation shall be paid for any additional regular service rendered before the issuing of such order."

Section 3961 provides as follows:

"No extra allowance shall be made for any increase of expedition in carrying the mail, unless thereby the employment of additional stock and carriers is made necessary, and in such case the additional compensation shall bear no greater proportion to the additional stock and carriers necessarily employed than the compensation in the original contract bears to the stock and carriers necessarily employed in its execution."

Section 4057 provides as follows:

"In all cases where money has been paid out of the funds of the post-office department, under the pretense that service has been performed therefor when in fact such service has not been performed, or as additional allowance for increased service actually rendered when the additional allowance exceeds

the sum which, according to law, might rightfully have been allowed therefor, and in all other cases where the money of the department has been paid to any person in consequence of fraudulent representations, or by the mistake, collusion, or misconduct of any officer or other employe in the postal service, the postmaster general shall cause suit to be brought to recover such wrong or fraudulent payment or excess, with interest thereon."

One of the covenants in the contract, and covered by the compensation agreed on, binds the defendant as follows:

"Third. To take the mail and every part thereof from, and deliver it and every part thereof at, each post-office on the route, or that may hereafter be established on the route."

The several provisions of the acts of congress are public laws, and are binding on the postmaster general and all parties contracting with him. They must take notice of the powers conferred on him, and the restrictions and limitations imposed. The law-making power may confer such authority and make such limitations on the public officers of the government as it deems proper, and a person entering into a contract with such officers must look to the statute under which it is made, and see for himself that his contract comes within the terms of the law. The Floyd Acceptances, 7 Wall. 667-680; Curtis v. U. S., 2 Ct. Cl. 152; Steele v. U. S., 113 U. S. 128; S. C. 5 Sup. Ct. Rep. 396; People v. Fields, 58 N. Y. 505; Supervisors, etc., v. Ellis, 59 N. Y. 624. Admitting the facts as charged in this declaration to be true, does it set out transactions between the defendant and the postmaster general, and the payment of the public funds in pursuance thereof, unauthorized by law? It seems to me there can be but one answer to this question, and that in the affirmative. Section 3960 provides that "compensation for additional service in carrying the mail shall not be in excess of the exact proportion which the original compensation bears to the original service. And no compensation shall be paid for any additional regular service rendered before the issuing of such order."

It is charged that the orders of the postmaster general for the additional service, and payments made defendant therefor, violated the provisions of this section: (1) That the compensation paid was in excess of the proportion which the original compensation bore to the original service; (2) that the compensation was paid defendant for services rendered before the issuing of the order to supply the Roswell office, to-wit, from July 1st to October 24th; (3) that additional compensation was paid defendant for services (supplying the Roswell office) which he was bound to perform, under his original contract, without extra compensation.

Section 3961 provides that "no extra allowance shall be made for any increase of expedition in carrying the mail, unless thereby the employment of additional stock and carriers is made necessary, and in such case the additional compensation shall bear no greater proportion to the additional stock and carriers necessarily employed.

than the compensation in the original contract bears to the stock and carriers necessarily employed in its execution."

It is charged that to perform the original service on the schedule of seven and one-half days it required twelve carriers and thirty-six animals, and to shorten the running time to five days the defendant certified it would necessarily require nine additional carriers and fifty-two additional animals; and on this basis the additional compensation was allowed and paid defendant, whereas, in fact, no additional carriers or animals whatever were required or used by reason of such expedited service. It seems hardly possible that so great a cutting down of time could be done without requiring additional carriers and animals, or putting a great deal of extra work on those already employed, but the court can only accept the averment as made in the declaration, and this certainly charges a direct violation of the statute; and whether the money was paid on an intentional or unintentional misrepresentation of facts, or no representation at all, or by mistake or fraud, matters not. The money was paid in violation of law and for services never performed.

The only question remaining to be answered is, can the United States maintain an action to recover it back? It seems to me the plain and unmistakable words of section 4057, before cited, answer this question fully and completely, and give such right of action. See, also, Steele v. U. S., 113 U. S. 134; S. C. 5 Sup. Ct. Rep. 396. In the case of U. S. v. Parker, tried in this court last June, Judge DUNDY, of Nebraska, took a similar view of the law as given in this opinion, while in the case of U. S. v. Barlow, ante, 903, tried in Colorado last December, Judge HALLETT took the opposite view. The amount in controversy in any of these actions is sufficient to entitle it to a review in the supreme court, where the law will be finally settled.

The demurrer must be overruled.

RAHN v. SINGER MANUF'G Co.1

(Circuit Court, D. Minnesota. October Term, 1885.)

1. MASTER AND SERVANT-RELATION-CONTRACT ESTABLISHING.

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A contract was entered into between the defendant, a sewing-machine company, and one C., which was called a "canvasser's salary and commission contract. By it C. was to sell the machines of the defendant on a commission, receiving five dollars for every machine he sold, and, in addition, 10 per cent. of its gross price. The defendant undertook to furnish him a wagon, which he was to use exclusively in its business, and he himself was to provide a horse and harness. It was further stipulated in the contract that he should employ himself under the direction of the defendant, and under such

Reported by Ambrose Tighe, Esq., of he St. Paul bar.

rules as it, or its managers at Minneapolis, should prescribe. Held, by the court, that under such a contract C. was not an independent contractor, but a servant of the defendant, and that the defendant was liable in damages for his torts committed while in the discharge of its business.

2. SAME LIABILITY OF MASTER FOR TORT OF SERVANT-SCOPE OF A SERVANT'S EMPLOYMENT-THE BURDEN AND NATURE OF THE PROOF.

In order to fix the responsibility of the defendant, it is not necessary for the plaintiff to prove that the servant, for whose tort he seeks damages, was, at the time of the commission of the tort, engaged in executing specific commands of the defendant. It is enough for him to prove that the servant was acting within the general scope of his employment, but this much is necessary. If the usage of the parties, under the servant's contract of hiring, was of such a character that it allowed the servant to attend to his duties on such terms as suited his convenience, and at the time of the commission of the tort he was engaged in his own private business, but at the same time was pursuing the defendant's business in the service for which he was employed, the defendant would still be liable.

3. NEGLIGENCE-CONTRIBUTORY NEGLIGENCE.

It is not conclusive evidence of negligence on the plaintiff's part, in an action brought to recover damages for an injury sustained by being run over by the defendant's servant on a public street that at the time of the accident the plaintiff was crossing the street at a point not designated as a crossing; and this, too, although there were vehicles driving on the street and in sight. On the other hand, the plaintiff could not, without negligence, recklessly cross the street, nor take the chances of a nice calculation as to whether or not she could pass over with safety.

4. SAME-NEGLIGENCE, WHEN QUESTION For Jury.

It is a question for the jury to determine whether or not it is a negligent act for the driver of a vehicle to proceed at a reckless speed, at dusk, racing along a public street.

At Law.

John W. Willis and C. A. Ebert, for plaintiff.

Mahoney & Donahue and J. N. Cross, for defendant.

NELSON, J., (charging jury.) The plaintiff, a citizen of this state, residing in Minneapolis, brings this suit against the Singer Manufacturing Company, a corporation incorporated and organized under the laws of the state of New Jersey, to recover damages for personal injury, inflicted, as she alleges, through the negligence of the defendant. She asks to be compensated for injury which she has suffered at the hands of this defendant, through its negligence, as she alleges. Of course, you will see that the gist of the whole action is the negli gence of the defendant, and the burden of proof is upon the plaintiff to show that the defendant committed the injury, through its negligence, upon the plaintiff.

The claim of the plaintiff is that she was crossing, on the tenth day of April, 1884, about twilight, between sundown and dark, Franklin avenue, in the city of Minneapolis, and while crossing was run down by a horse and wagon driven by one Corbitt. The wagon had upon it a Singer sewing-machine, screwed down to the box of the wagon. Now, before the plaintiff can recover against the defendant, she must show that Corbitt was a servant of this defendant, that is, that the relation of master and servant existed; that Corbitt was a person whose conduct was under the control of the defendant in the v.26F.no.12-58

particular business in which he was engaged. The general rule is that the master is answerable for the wrongful act of a servant committed in the course of the master's service, and this will apply to a corporation as well as to an individual. Corporations who are represented by and who operate through agents are not responsible for all wrongful acts committed by their agents or servants; but the wrongful act must be done when the agent or servant was employed in the actual service of the corporation or engaged exclusively for its benefit; so that, in this case, the principal question for the jury to consider is, was Corbitt, at the time that this plaintiff was run down on that street, in the service of the defendant? The usual test to determine whether the relation of master and servant existed, is whether the person who is charged to be the master had the right to direct the person's conduct and prescribe the mode of his action in doing the particular business; that is, to direct how the work should be done. If the person who is employed to do a particular work reserves to himself when and how the work is to be done, he may be an independent contractor; so that you are to determine-and that is the first question that presents itself here-whether the relation of master and servant existed between the defendant and Corbitt at the time this plaintiff was run down on that street; bearing in mind that the right to direct the person's conduct, and to prescribe how the work or business should be done, is the usual test to determine whether the relation of master and servant exists.

In this case there is a contract, which is before you,-a contract of employment, signed by the defendant and Corbitt, defining what his duties were, and how he was to work. It is called a "canvasser's salary and commission contract," and by its terms Corbitt was to receive five dollars for every machine that he sold, and, in addition to the five dollars, he was to receive a commission upon the price of the machine which he sold, as a "selling commission." He was to receive, in addition to the said five dollars, a further sum of 10 per cent. on the gross price realized for said sales so made. He received, not only the fixed sum of five dollars, but he was to receive a commission of 10 per cent. upon the gross sales. In the pursuit of his business, the defendant agreed to furnish him a wagon. This wagon belonged to the company or the corporation, and Corbitt was to furnish a horse and harness, to be used exclusively in the business of the defendant. A further significant provision in the contract is, Corbitt, or the second party, agrees to employ himself under the direction of the said Singer Manufacturing Company; thus coming within the very test which is given to determine whether the relation of master and servant exists in law, viz., the right to direct the person's conduct, and to prescribe the mode of doing the work. Then this was to be done under the directions of the Singer Sewing-machine Company, and "under such rules and instructions as it, or their managers at Minneapolis, shall prescribe;" so that, upon the

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