8 Agency.

tlie contract will vary in accordance with the terms and the

evident intention of the parties.^ The refinements are too

nice to be discussed liere, but will be disclosed by an examina-

tion of the cases.

(4) Agency or Bailment. P. may deliver his property to

A. for either of two purposes, namely, to sell lor P. or to keep

for P. In the first case A. is an agent ; in the second a bailee.

Tiie nature of the understanding between P. and A. must de-

termine whether the transaction results in the creation of an

agency or a bailment. Thus in Biggn v. Evans^ an opal table

was entrusted to a dealer on condition that it was not to be

sold without first securing the authorization of the owner. The

dealer sold it without such authorization, and it was held that

the table was never entrusted to the dealer to sell, but only to

keep, and that the purchaser acquired no title. Such a case

may involve a question of ostensible agency or a question of

ostensible ownership. Thus if an owner invests a bailee with

the indicia of ownership, a purchaser from the bailee may ac-

quire a good title as against the owner, not because the owner

Is estopped to deny the agency (for there is no holding out as

agent), but because he is estopped to deny the bailee's owner-

ship.3 It may well be questioned whether Biggs v. Evans

ought not to have been decided in favor of the purchaser, on

tlie ground that one who permits his goods to be exposed by a

dealer in such goods is estopped to deny the dealer's owner-

ship. The doctrine of ostensible ownership is especially ajipli-

cable to cases where the true owner invests another with docu-

ments of title.* It is to extend this doctrine of ostensible

ownership that the " Factors Acts " have been passed.^

(5) Agencij or Lease. In like manner it becomes a matter

1 Ex parte White, L. R. Ch. App. 307; Ex parte Bright, L. R. 10

Ch. D. 506; National Cordage Co. v. Sims, 44 Neb. 148; Willcox, &c.

Co. V. Ewiug, 141 U. S. 627; Chezum v. Kreighbaum, 4 Wash. 680;

Singer Mfg. Co. v. Rahn, 132 U. S. 518.

2 18fВ»4, 1 Q. B. 88.

3 McCauley v. Brown, 2 Daly (N. Y. C. P.), 426.

В« Lickbarrow v. Mason, 2 T. R. 63; Pickering v. Busk, 15 East, 38;

post, В§ 170.

6 Post, В§ 171.

Introduction. 9

of construction whether a party to a contract is an agent or a

lessee. Although the party may be acting under a formal

power of attorney authorizing him to represent the other party

in the management of certain property, yet this, taken in con-

nection with the intent and conduct of tlie parties, may be

construed as a lease of the property so as to make the lessee

liable for rent as the assignee of the terni.^ If the construc-

tion of the relation is that of lessor and lessee, and not that of

principal and agent, the lessor is not liable for the wilful or

negligent acts of the lessee in the conduct of the property.''^

Thus if one lets his farm and stock on shares, he is not liable

for the negligence of the lessee in keeping a vicious animal.^

(6) Serva7it or Independent Contractor. A person may be

engaged to perform an operative act for another without be-

coming a servant. The test usually applied is whether the

employer retains any control, or right of control, over the

means or methods by which the work is to be accomplished.

If he does, the employee is a servant ; * if he does not, the other

party to the contract is not strictly an employee at all, and is

in no sense a servant, but is an independent contractor, re-

sponsible to his contractee for results only.^ This is more

fully considered hereafter.^ The question whether one is liable

for the unsafe condition of his premises, or of a public street

over which he has been given control, involves other consider-

ations having to do with the high degree of responsibility placed

upon occupiers of premises.'^

1 Eagsdale v. Land Co., 71 Miss. 284, 303-307.

2 Miller v. New York, &c. R., 125 N. Y. 118.

3 IVIarsh v. Hand, 120 N. Y. 315.

* Linnehan v. Rollins, 137 Mass. 123 ; Lawrence v. Shipman, 39 Conn.

586. The owner may approve or disapprove the results of the work daily

without retaining control over methods. Casement v. Brown, 148 U. S.

615.

6 Bailey v. Troy, &c. Co., 57 Yt. 252; Harrison v. Collins, 86 Pa. St.

153; King v. New York Central, &c. R., 66 N. Y. 181 ; Morgan v. Smith,

159 Mass. .570; 35 N. E. 101.

В« Post, В§ 218.

7 Gorham v. Gross, 125 Mass. 232; Woodman v. Met. R. Co., 149

Mass. 335.