In contact with other persons and he is to enter into contractual

relations for me with them.

On the other hand, if I want a ditch dug or any other kind of

manual service performed, the only thing that the person I employ

has to do is to deal with things. The main purpose of his employ-

ment is to accomplish some kind of manual labor and not to make

contracts at all. He has neither occasion nor authority to effect

contractual relations or impose contractual obligations upon me to

another person. Such a person is a servant.

If I say to a, "Go into the market and buy me a horse," my

purpose is that he shall go out and find a person who has a horse

for sale and make a contract with that person to sell that horse to

me. A is here an agent. If, when he brings the horse to me, I say

to him, "Put the horse in the stable and care for him," and A does

so, he then is a servant.

There are cases, of course, in which the servant is to come into

contact with other persons. The porter on a parlor car is an illus-

tration. Although a large portion of his duties may be to assist

§§ 5-7.] DEFINITIONS AND DISTINCTIOl 7

passengers and look out for their comfort, he is a servant. The

case of the conductor is not so simple. If he has no other duties

than to manage the train; if he has no power to make contr

for carriage; if his sole duty is to collect tickets a: re is no

occasion in which he has the right to enter into contractual rela-

tions for his employer, then he will be purely a servant.

If, on the other hand, he is authorized not only to manage the

train but to make contracts for carriage, to collect pay, to make the

ordinary bargains that are made between carrier and passenger,

then he is also an agent. It is obvious, therefore, that the p.me per-

son may be at times a servant and at times an agent.

The agent usually is vested with more or less discretion, while

the servant is commonly required to act according to the directions

of his master; and this has sometimes been suggested as the basis

for distinguishing between the two relations.

See Baltimore & Ohio Employees' Relief Ass'n v. Post, 122 Pa.

St. 679, 9 Am. St. Rep. 147.

The true distinction, however, is believed to be that already men-

tioned.

В§ 6. Distinction usually of little practical im-

portance. — The distinction between the two relations,

though in many aspects radical in theory, is, usually,

not of much practical importance, as the same rules

of law, in general, apply equally to both relations.

There is, in many quarters, a somewhat absurd repugnance to the

U6e of the word "servant," because it is supposed to emphasize social

distinctions which ought not to exist among us. This leads, in

popular language, to the substitution of the word "agent." and this

popular use is often exhibited by the courts, with the result that

even in legal language the word "agent" is coming to be more and

more used where the word "servant" would be more appropriate.

Fortunately it is usually immaterial and leads to uo serious diffi-

culty.

§ 7. Occasionally distinction important. —

There is, however, occasionally a case in which the dis-

tinction becomes important. A statute, for example,

may use one word or the other under circumstances

which call for strict construction, and it then becoi

important to distinguish.

Regina v. Walker, Agency Cases, 1, is a case of this nature.

What was the point there involved? Wakefield v. Fargo, Agency

S DEFINITIONS AND DISTINCTIONS. [§§ 7-8.

Cases, 4, presents another illustration. What was the question

there? Hamberger v. Marcus, 157 Pa. St. 133; Wildner v. Ferguson,

42 Minn. 112, 6 L. R. A. 338, and Lewis v. Fisher, 80 Md. 139, 45

Am. St. Rep. 327, present olher illustrations.

In Singer Mfg. Co. v. Rahn, Agency Cases, 8, was Corbett an

agent or a servant? In "Wilson v. Owens, Agency Cases, 9, in what

relation did Egan stand? "What is said here as to the similarity of

the two relations?

In Tete v. Lanaiix (1893), 45 La. Ann. 1343, 14 So. Rep. 241,

there was a necessity, in view of a peculiar statute, to determine

whether a certain person was a clerk, or a broker. Said the court:

"A clerk is one who hires his services to an employer at a fixed

price under a stipulation to do and perform some specific duty or

labor which requires the exercise of skill. 'The broker is he who is

employed to negotiate a matter oeiween two parties, and who for that

reason is the mandatory of both.' R. C. C. 3016. The leading and

essential difference between a clerk and a broker is that the former

hires his services exclusively to one person, while the latter is

employed to make bargains and contracts between other persons