game of logomachy. Thus, in Bell v. Josselyn 294 it was said that failure of "defendant to examine the state of the pipes in a house before causing the water to be let on would be a nonfeasance; but if he had not caused water to be let on, that nonfeasance would not have injured the plaintiff. If he had examined the pipes and left them in a proper condition, and then caused the letting on of the water, there would have been neither nonfeasance nor misfeasance. As the facts were, the nonfeasance caused the act done to be a misfeasance. The plaintiff suffered from the act done, which was no less a misfeasance by the reason of its being preceded by a nonfeasance."

The futility of such reasoning on the word "nonfeasance" appears fully from the lack of definitiveness of the meaning to be given the term. 295 This solemn legal jugglery with words will probably disappear "if the nature of the duty incumbent upon the servant be considered." 296 If the servant owe a duty to third persons, derived from instrumentality likely to do harm or otherwise, and he violates that duty, he is responsible. His responsibility rests on his wrongdoing, not on the positive or negative character of his conduct. A wrongful omission is as actionable as a wrongful commission. driver who injures a third person by his negligence is liable.297 an engineer who negligently handles fire is liable to third persons. for the damage done.298 Selectmen of a town who ordered the building of a public sewer in one of the streets were liable for injuries occasioned to a person employed by them to lay a pipe in the bottom of a trench, by reason of their failure to provide a proper support for the sides of the trench. The fact that the town was also liable did not relieve them.299

294 3 Gray, 309.

A

So

Agents who have possession, charge, and

295 Cf. Blakeston's Case, 1 W. Jones, 82.

296 Whittaker's Smith, Neg. p. 200, § 7.

297 Phelps v. Wait, 30 N. Y. 78; Hewett v. Swift, 3 Allen, 420; Hutchinson

v. Railway Co., 5 Exch. 341.

298 Gilson v. Collins, 66 Ill. 136.

And see Bacheller v. Pinkham, 68 Me. 253.

299 Breen v. Field, 157 Mass, 277, 31 N. E. 1075; Kranz v. Long Island Ry. Co., 123 N. Y. 1, 25 N. E. 206; Eaglesfield v. Marquis of Londonderry, 4 Ch.

Div. 693.

LAW OF TORTS-19

management of a wharf," or of a building 201 which they rent to tenants, are liable to third persons for injuries done because of their omission to correct the old, worn. insecure, or dangerous condition of the premises. So where the privilege was given to the master to haul wood through another's land, and the master directed the servant to close the fence, and the servant passed through without closing it, and hogs escaped and were killed, the servant was held liable.* 202

But there are circumstances which impose no duty on defendant. If the servant do nothing, he is not liable. Thus, if the master has agreed with a third party to perform a certain duty, and the servant omits to perform that duty, the third party complains of the breach of contract by the master to which the servant is no party, and there is no duty to third persons for the servant to perform. Many cases cited in support of the distinction arise where privity existed between the master and the third person, but not between the servant and the third person. Thus Story cites cases of bailment and delivery of goods. So, for example, if a master directs his servant to perform a duty (not involving a contract) imposed on the master, but not on the servant (as, to repair a dangerous walk), and the servant merely forbear, he is not ordinarily liable to third persons for consequent harm. But, as has been seen, under some circumstances the duty to repair might become a personal one to him, with respect to which mere omission (or nonfeasance) will attach liability. But when the servant'actually undertakes and enters upon the execution of a particular work, he is liable for any negligence in the manner of executing it. He cannot, by abandoning its execution midway, and leaving things in a dangerous condition, exempt himself from liability to any person who suffered injury by reason of his having so left it without proper safeguards.303 Thus, even in cases of bailment,-for example where a mare was given

300 Baird v. Shipman, 33 Ill. App. 503, affirmed 132 Ill. 16, 23 N. E. 384. But an agent in charge of a building, who fails to make necessary repairs, is not liable to a tenant injured by such failure. Dean v. Brock (Ind. App.) 38 N. E. 829.

301 Campbell v. Portland Sugar Co., 62 Me. 552.

302 Horner v. Lawrence, 37 N. J. Law, 46.

303 Osborne v. Morgan, 130 Mass. 102.

`into a party's keeping to be broken, and was killed by the negligence of such party's servant or agent,-the agent, as well as the principal, was liable.3

304

SAME-PARTNERS.

99. In order that responsibility be attached to a partner with respect to a tort, it is necessary either—

(a) That he should have authorized it or joined in its commission in the first instance;

(b) That he should have made it his own by adoption;

or

(c) That it should have been committed by his copartner in the course and as a part of his employment.3

305

Where a partner authorizes the commission of a tort, he has done it himself, and is of course liable. So, where he joins in its commission, his liability is rather that of a joint tort feasor pure and simple, because of participation, than that of a partner because of relationship.306 Indeed, the partnership relation would have no connection as cause of the wrongdoing. Retention of benefit derived from a partner's unauthorized tort will attach liability to all partners. 307 The only questions involving difficulty as to the liability of partners, therefore, are those where the liability arises from the relationship. It has been recognized generally by text writers that the law of partnership is a branch of the law of agency. Consequently it is said that a partner, like a principal, is not liable for the willful acts of his agent, if not done in course of his employment and as part of his business; and this is true not only of assault, battery, libel, and the like, but also of fraud.308

304 Miller v. Staples, 3 Colo. App. 93, 32 Pac. 81. Compare 3 Chit. C. & N. 214; Lane v. Cotton, 12 Mod. 796, 488.

305 Lindl. Partn. § 299.

306 Graham v. Meyer, 4 Blatchf. 129, Fed. Cas. No. 5,673; 24 Myer, Fed. Dec. 131.

307 Ante, p. 209, "Joint Tort Feasors"; U. S. v. Baxter, 46 Fed. 350; Bienenstok v. Ammidown (Super. N. Y.) 29 N. Y. Supp. 593.

308 Lindl. Partn. § 299; Cooley, Torts, pp. 535, 536; Ewell's Evans on Agency, p. 180; Stockwell v. U. S., 3 Cliff. 284, Fed. Cas. No. 13,466.

As to what is so within and a part of the business as to attach liability to a copartner, the cases may not have gone as far towards holding to a mutual responsibility as in the case of master and servant. It has, however, been held that if one of several partners drive a coach negligently, a person injured thereby may sue the driver in trespass, or all the partners in case. *** Partners are jointly liable for statements made by one of them in derogation of a competitor, in aid of their business,31 for misrepresentation as to lands exchanged,311 for abuse of trust funds,312 for death by the wrongful act of a copartner,313 and for an illegal agreement to pay rebate.314 Similarly, where one partner acts for the firm in demanding illegal charges and detaining the goods until they are paid, every member of the firm is liable in damages.315

As to what is not within the course, and not a part, of partnership business, it would appear that a partner is not liable for the willful act of his partner, not because it is willful, but because it is outside of the partnership business.316 Thus, one partner is not liable for malicious prosecution instituted by his copartner for the larceny of partnership property, unless he advised or participated in it, and then only in his individual capacity. While, as has been shown, the partner may be liable for the libelous words of a copartner, still the copartner may, in connection with the business, publish a libel for which the only responsibility is his individually. Thus, where a furniture company placarded

309 Moreton v. Hardern, 4 Barn. & C. 223; Ashworth v. Stanwix, 30 L. J. Q. B. 183. So, where two attorneys are in partnership, both are liable for the unsuccessful conduct of client's business. Warner v. Iriswold. 8 Wend. 665; Poole v. Gist, 4 McCord, 259.

310 Haney Manuf'g Co. v. Perkins, 78 Mich. 1, 43 N. W. 1073.

311 Stanhope v. Swafford, 80 Iowa, 45, 45 N. W. 403. And see Gooding v. Underwood, 89 Mich. 187, 50 N. W. 818.

312 Appeal of Rau, 144 Pa. St. 304, 22 Atl. 740. Cf. Hawley v. Tesch, 88 Wis. 213, 59 N. W. 670.

313 Sagers v. Nuckolls, 3 Colo. App. 95, 32 Pac. 187.

314 McEwen v. Shannon, 64 Vt. 583, 25 Atl. 661.

315 Lockwood v. Bartlett, 130 N. Y. 340, 29 N. E. 257.

316 1 Bates, Partn. § 467.

317 Marks v. Hastings, 101 Ala. 165, 13 South. 297; Farrell v. Freidlander, 63 Hun, 254, 18 N. Y. Supp. 215.

furniture: "Taken back from Doctor W., as he could not pay for it. For sale at a bargain. Moral: Beware of dead beats!"-this libel was held to be the act of the individual. It had nothing to do with the partnership. The partners other than the one actually publishing it were not liable, unless in some way they authorized the publication.318 A copartner is, of course, not liable for the conversion by another partner to his own use of a third person's property.319 In case several persons are sued as partners for a tort, and no partnership is established, the verdict may be against one only, if the tort is established against him.320 Even for torts, where liability is attached to partners because of wrong done in course of partnership business, the injured party muy sue all the partners, or any one or more of them, at his election.321

318 Woodling v. Knickerbocker, 31 Minn. 268, 17 N. W. 387; Blyth v. Fladgate (1891) 1 Ch. 337. But see Bienenstok v. Ammidown, supra.

319 Stokes v. Burney, 3 Tex. Civ. App. 219, 22 S. W. 126. Liability in replevin. Tanco v. Booth (Com. Pl. N. Y.) 15 N. Y. Supp. 110.

320 Austin v. Appling, 88 Ga. 54, 13 S. E. 955. And see Fay v. Davidson, 13 Minn. 523 (Gil. 491).

321 Wisconsin Cent. R. Co. v. Ross, 142 Ill. 9, 31 N. E. 412, collecting cases at page 16, 142 Ill., and page 412, 31 N. E.; Walker v. Trust Co., 72 Hun, 334, 25 N. Y. Supp. 432. Cf. Whittaker v. Collins, 34 Minn. 299, 25 N. W. 632.

By far the ablest and clearest discussion of the liability of a partner, general and special, for the torts of a copartner is to be found in chapter 9 of Principles of Partnership, by James Parsons (1889).