of holding that liability arises where the contractor fails to finish the work by the time set and the employer neglects to assume control and complete it.188

(6) Lack of Care in Selecting Competent Contractor

A further exception which has received support, though chiefly by dicta, is where the employer either knew the incompetency of the contractor or failed to exercise reasonable care in his selection.137 It has been said, however, that this applies only to exceptional cases when the work is necessarily intrinsically hazardous.138 What limitations, if any, are to be placed upon this doctrine-indeed, its very existence cannot be regarded as settled, owing to a lack of authority.139

PARTNERS

55. "Where by any wrongful act or omission of any partner acting in the ordinary course of the business of the firm, or with the authority of his copartners, loss or injury is caused to any person, not being a partner in the firm, or any penalty is incurred, the firm is liable therefor to the same extent as the partner so acting or omitting to act." 140

served that liability is "for the creation of the nuisance, upon a principle very similar to that which makes a principal responsible for unauthorized wrongs committed by an agent by ratifying them." 136 Vogel v. City of New York, 92 N. Y. 10, 44 Am. Rep. 349. This was a very aggravated case. The contractor had undertaken to grade one of defendant's streets, under an agreement which gave the city the right to finish the work, if not completed. Excavations were made, which diverted water on plaintiff's premises. The work was delayed and practically abandoned for about 14 years.

137 Norwalk Gaslight Co. v. Borough of Norwalk, 63 Conn. 495, 28 Atl. 32; Brannock v. Elmore, 114 Mo. 55, 21 S. W. 451.

138 Schip v. Pabst Brewing Co., 64 Minn. 22, 66 N. W. 3. 139 In New York it is apparently denied. See Berg v. Parsons, 156 N. Y. 109, 50 N. E. 957, 41 L. R. A. 391, 66 Am. St. Rep. 542; Hawke v. Brown, 28 App. Div. 37, 50 N. Y. Supp. 1032; Fox v. Ireland, 46 App. Div. 541, 61 N. Y. Supp. 1061; Id., 60 App. Div. 629, 70 N. Y. Supp. 1139.

140 Taken from the English Partnership Act, 53 and 54 Vict. c. 39,

CHAP.TORTS-15

There can be no question of liability where prior express authorization or subsequent ratification is shown. Hence there are here considered only cases where the firm is sought to be held merely because the wrongdoer was a member. A partner is viewed as an agent of his partnership while acting within the course of its business, and consequently. the rules under which the principal may be liable would here apply. There is some sanction for the view that there can be no implied authority to commit an illegal act,141 but this does not generally prevail, nor can it be supported on reason.142 Thus the fellow partners of the wrongdoer have been held liable for the latter's conversion,14% fraud,144 negligence,145 defamation,140 and violation of the revenue laws. 147 Such wrongs were found to have been committed within the course of the partnership business, and this is the true test; for it makes no difference that the act was illegal or willful. On the other hand, the placing of a libelous placard in the store window is not within the scope of a business consisting of the sale of furniture and draperies,1 ,148 and, since giving away goods is not properly within the operations of a firm of apothecaries, one member will

141 Marks v. Hastings, 101 Ala. 165, 13 South. 297 (malicious prosecution); Kirk v. Garrett, 84 Md. 383, 35 Atl. 1089; Graham v. Meyer, Fed. Cas. No. 5,673, 4 Blatchf. 129 (usury).

142 "Surely it is more reasonable that the copartners who have held out this one as a fit and proper person to act in protecting the firm's interests should suffer for his defects of temper and errors of judgment rather than those who have reposed no confidence in him and made no representations as to his fitness." Burdick on Partnership, 217.

143 Gilchrist v. Brande, 58 Wis. 184, 15 N. W. 817.

144 Wolf v. Mills, 56 Ill. 360; Stanhope v. Swafford, 80 Iowa, 45, 45 N. W. 403; Locke v. Stearns, 1 Metc. (Mass.) 560, 35 Am. Dec. 382; Chester v. Dickerson, 54 N. Y. 1, 13 Am. Rep. 550.

145 Linton v. Hurley, 14 Gray (Mass.) 191; Dudley v. Love, 60 Mo. App. 420; Livingston v. Cox, 6 Pa. 360.

146 Lothrop v. Adams, 133 Mass. 471, 43 Am. Rep. 528; Haney Mfg. Co. v. Perkins, 78 Mich. 1, 43 N. W. 1073.

147 Stockwell v. U. S., 13 Wall. 531, 20 L. Ed. 491.

148 Woodling v. Knickerbocker, 31 Minn. 268, 17 N. W. 387.

not be liable for the act of the other in making a present of what was supposed to be extract of dandelion, but which proved to be belladonna.149

OWNERS 150

56. The responsibility which the owner of property may incur because of the acts or neglect of others will

here be treated in cases where the relationship arose out of

(A) Lease;

(B) License; and(C) Bailment.

The lessee or tenant, the licensee, and the bailee are not to be regarded as agents of lessor or landlord, licensor, or bailor, merely because of the position which they occupy towards the latter. The doctrine of respondeat superior will not therefore apply,151 unless agency be affirmatively established, as where the tenant has been authorized to make repairs, and he does it inefficiently, so that third persons are injured.152

But where the element of participation is shown, responsibility will exist. For instance, the fact that premises are in the

149 Gwynn v. Duffield, 66 Iowa, 708, 24 N. W. 523, 55 Am. Rep. 286. See, further, Schwabacker v. Riddle, 84 Ill. 517; Linn v. Ross, 16 N. J. Law, 55.

150 For duty of occupant of real property, see infra, p. 503 et seq. 151 Lessor. Allen v. Smith, 76 Me. 335; Caldwell v. Slade, 156 Mass. 84, 30 N. E. 87; Sargent v. Stark, 12 N. H. 332; Martin v. Pettit, 117 N. Y. 118, 22 N. E. 566, 5 L. R. A. 794. Bailor. Herlihy v. Smith, 116 Mass. 265; Braverman v. Hart (Sup.) 105 N. Y. Supp. 107; McColligan v. Pennsylvania R. Co., 214 Pa. 229, 63 Atl. 792, 6 L. R. A. (N. S.) 544, 112 Am. St. Rep. 739.

152 See White v. Montgomery, 58 Ga. 204. The landlord is liable if he assumed the performance of a duty the violation of which has produced injury, as if he has agreed to keep the demised premises in repair. City of Peoria v. Simpson, 110 Ill. 294, 51 Am. Rep. 683; Clancy v. Byrne, 56 N. Y. 129, 15 Am. Rep. 391. Though here responsibility is predicated on his personal wrong.

lessee's possession will not constitute a defense, where the injury was caused by the very use for which they were demised, and the landlord knew or should have known that such use might reasonably be expected to produce that result. "Whoever for his own advantage authorizes his property to be used by another in such manner as to endanger and injure unnecessarily the property or rights of others is answerable for the consequences." Accordingly one who leases a mill having an overshot wheel, which when in motion is likely to frighten horses,154 or a kiln, whose use is dangerous to an adjoining house,155 will be responsible for the damage.156 But knowledge, actual or presumed, that the letting was for a purpose likely to prove injurious must be established. 157 Participation is likewise shown where rent is received for the nuisance with knowledge thereof.158 The rule is the same as to licensors,

158

158 Boston Beef Packing Co. v. Stevens (C. C.) 12 Fed. 279, 280, 20 Blatchf. 443, per Wallace, C. J. Here an unsafe building had been leased for storage purposes.

154 House v. Metcalf, 27 Conn. 631.

155 Helwig v. Jordan, 53 Ind. 21, 21 Am. Rep. 189.

158 "It has been said that the owner is responsible: (1) If he cre ates a nuisance and maintains it. (2) If he creates a nuisance and then demises the land with the nuisance thereon. (3) If the nuisance was erected on the land by a prior owner or by a stranger and he knowingly maintains it. (4) If he has demised premises and covenanted to keep them in repair, and omits to repair and thus they become a nuisance. (5) If he demises premises to be used as a nuisance or for a business or in a way so that they will necessarily become a nuisance. Ahern v. Steele, 115 N. Y. 203, 22 N. E. 193, 5 L. R. A. 449, 12 Am. St. Rep. 778. See, also, Riley v. Simpson, 83 Cal. 217, 23 Pac. 293, 7 L. R. A. 622; Kalis v. Shattuck, 69 Cal. 593, 11 Pac. 346, 58 Am. Rep. 568. It is evident that in the second and fifth classes, particularly in the latter, the landlord's liability will extend to injuries which are actually the result of the tenant's misfeasance or nonfeasance, although made possible by the antecedent act of the lessor. In the other classes, the landlord is held accountable because his own act or omission has directly produced the injury." 38 Cyc. 482, note 84.

157 Fish v. Dodge, 4 Denio (N. Y.) 311, 47 Am. Dec. 254.

158 Board of Health of New Rochelle v. Valentine, 57 Hun, 591, 11 N. Y. Supp. 112; Roswell v. Prior, 1 Ld. Raym. 713, 91 Eng. Repr.

who are liable if they knowingly permit the licensee to maintain the dangerous condition.159

Participation by bailors would appear where dangerous articles are intrusted to those who are known or should have been known to be unable to appreciate the peril or to exercise proper care. Necessarily there is bound to be some difficulty in fitting this rule to given circumstances. It would, for instance, apply where a loaded gun had been intrusted to a young child.100 Though the principle seems clear, direct authority appears to be lacking.

JOINT AND SEVERAL LIABILITY-HOW ARISING

57. The responsibility of two or more individuals for a single tort may arise out of

(A) Connivance;

(B) Concert of action;

(C) Production of a single injury;

(D) Relationship;

(E) Ratification.

In General

Hitherto the subject has been viewed as though there were but a single wrongdoer. But a tort may have been committed under such circumstances that two or more may be held for the resulting injury. It is therefore the method of accomplishment which is determinative, and not the inherent nature of the specific wrong; for it is conceivable that every tort may be made the subject of a joint action. It has been thought that slander is essentially single, since, though the same words are uttered by two or more,

159 Inhabitants of Rockport v. Rockport Granite Co., 177 Mass. 246, 58 N. E. 1017, 51 L. R. A. 779.

160 Dixon v. Bell, 5 M. & S. 198, 105 Eng. Repr. 1023, 1 Stark. 287, 2 E. C. L. 114, 17 Rev. Rep. 308. And see Salisbury v. Erie R. Co., 66 N. J. Law, 233, 50 Atl. 117, 88 Am. St. Rep. 480, though the decision was not upon the point stated in the text.