43 Mass. 353 | Mass. | 1841
1. A preliminary objection, taken by the defendant to the maintenance of this action, is, that the plaintiff, having mortgaged his estate to the Hospital Life Insurance Company, is not the owner in fee, and cannot maintain this action of trespass. It is among the most familiar rules of law, that a plaintiff need not be the owner of an estate to maintain trespass quare clausum fregit. He may have a lawful possession, which is sufficient to enable him to maintain an action for an injury to the possession. But further ; a mortgagor in possession, before entry by the mortgagee, and especially before condition broken, is to most purposes regarded as owner of the estate. The fee is considered to be in the mortgagee, for all purposes necessary to the security of his debt; but in other respects, and as to strangers, a mortgage is considered merely as a pledge. In the present case, the plaintiff had mortgaged his estate for the security of a debt payable in five years, which term had not expired at the time of the supposed trespass, and the condition was not then broken. The court are therefore of opinion that such mortgage did not affect the plaintiff’s right to maintain the action.
2. Nor do'we think the rights of these parties are affected by the deed made by Hall to Gilbert, to enable him to execute a moitgage to Messrs. Guild & Savage, after which Gilbert re-conveyed to Hall. The manifest object of the transaction was, to enable Gilbert to make a good charge on the estate, as security for a loan of money, and that end being accomplished, to place the parties in the same situation, which they were in before. The relative rights of Hall & Gilbert, under their previous contracts, remained as before. Hall’s obligation to convey, and Gilbert’s obligation to build, and pay for the land, were the same after these conveyances as before.
The ground taken by the plaintiff is, that the defendant was owner in fee of a lot of land adjoining his own ; that acts were done on that land, pursuant to some arrangement made between the defendant and Gilbert, by which the plaintiff’s partition wall was undermined and injured ; and that, for this damage, the defendant, as such employer and owner, is responsible. Whether trespass would be the proper form of action to try that question, where the principal has commanded the particular act to be done, we give no opinion ; it not having been made in the argument. It would probably be a mere question of costs, not afecting the merits.
The principle that a master or employer of another is responsible in damages to a third person, for negligence, carelessness, want of skill in the service, in which he is engaged, or in pursuing the business for which he is employed, is well settled, as well in this Commonwealth as in England. Sproul v. Hemmingway, 14 Pick. 1. Stone v. Codman, 15 Pick. 297. It will not be necessary to consider the general question, when and to what cases the maxim respondeat superior applies ; because it is manifest that the question now before us must depend upon that branch of the subject, which affects the owners and occupiers of real estate, and determines to what extent, and for what acts of carelessness, negligence or mismanagement, done upon or near their premises, they are responsible to strangers.
The leading cases on this subject are Stone v. Cartwright, 6 T. R. 411. Bush v. Steinman, 1 Bos. & Pul. 404. Lonsdale v. Littledale, 2 H. B. 267. These cases are reviewed and commented upon, and their true effect and bearing stated, in Laugher v. Pointer, 5 Barn. & Cres. 547, in which the judges of the court of king’s bench were equally divided upon the ciicumslances of that particular case, which turned upon the liability of the owner of a coach.
The generi>l principle to be extracted from the cases, in re
Another well known principle is, that every one shall so use his own property, as not, in the management of it, to hurt that of another. Having the power to determine what agents shall be employed, what business shall be carried on, upon the estate of which he has either the ownership or the enjoyment and possession, it is alike the dictate of justice and public policy, that he shall be responsible for the conduct of those whom he may employ or dismiss, and whose movements he has the power to direct.
These principles seem to be recognized in all the cases cited. Stone v. Cartwright was an action against one who had been appointed by the court of chancery guardian of a minor. The action was for injury to the premises of the plaintiff, from working a colliery of the minor, under the general superintendence of the defendant. Lord Kenyon, after stating that the action would not lie, says, “ I have ever understood that the action must either be brought against the hand committing the injury, or against the owner, for whom the act was done”; adding, “ the
From this view of the law, it is manifest that we are not mere
The case of Leslie v. Pounds, 4 Taunt. 649, is strongly in confirmation of the same general doctrine. For though the general owner was held liable whilst the estate was under lease to a tenant, yet it was not upon the ground that he was the general owner, but because he had taken upon himself to make repairs, and had the actual care and management of the house ; the tenant having moved out whilst the house was under repair.
In applying these principles to the present case, the court are of opinion, that Hall & Gilbert did not stand in the relation of superior and subordinate, or employer and person employed. In May, 1836, they entered into a contract under seal, by which Hall covenanted to convey the land to Gilbert, and Gilbert covenanted to build a brick house upon the land; the house to be completed and the money paid by the 1st of October following. Each party stipulated to do every thing proper on his part to be done, to carry this agreement into effect. The actual and exclusive possession of the land, being absolutely necessary to the building of the house, it was a stipulation that Gilbert should have such an exclusive possession, and superseded all power and control of the owner over it, for the time being, as effectually as a formal lease for years. But it was contended that this agreement stipulated for the completion of the house and the payment of the money, by the 1st of October, and that the right of possession terminated at that time. But as time is not of the essence of a contract of this nature, if the parties mutually acquiesced in the extension of the time, there would be good ground to hold that the contract was still in force ; at least the right of possession, on the part of Gilbert, would continue until the owner thought fit to enter ; which he never did. But it does not stand merely on this ground. By an indorsement signed by Hall, the contract, so far as required for building the house by the 1st of October, was continued in force one month ; and by a second
Further ; Gilbert could in no sense be considered as building this house on account of Hall; but on his own account. He was building it on land of which Hall at the time held the fee, as security for the purchase money of the land ; but he had a covenant for a conveyance, which might be specifically enforced ; and when performed, the building would enure wholly to his benefit. That the parties so understood it, is manifest from an express though unnecessary stipulation in the agreement itself, that an application might be made to a court of chancery for a specific performance of the contract. If the building should in any event enure to the benefit of Hall, as owner of the land, it would be by a breach, and not under a performance of the contract. The understanding and agreement of the parties were, that Gilbert should build on his own account; and the law would imply no promise on the part of Hall to pay for such building, against the express agreement of the parties. In ascertaining the rights and obligations of the parties, we must presume that they looked to the performance, and not to the violation of their agreement. It seems therefore very clear, that for the work thus done, in
We consider, therefore, that the work, of the careless and unskilful doing of which the plaintiff complains, was not work done by the defendant, or by his order or direction, or at his expense, or for his benefit; and though done on land of which he was the general owner, it was not land of which he at the time had the possession or control', nor by persons appointed and employed by him ; and therefore he was not responsible to the plaintiff for the manner in which it was done ; and that this action cannot be maintained.
As this question depends upon the contracts of the parties, and a few facts, of which there was no dispute at the trial, we think it was the intention of the learned judge who tried the cause, as apparent in the report, to withdraw the question of the relation of the parties from the consideration of the jury, and reserve it as a question of law for the whole court; and that his opinion was pro forma only, with a view of submitting the question of damages to the jury. Upon the view we have taken of the law, it has become unnecessary to express any opinion on the motion for a new trial on the ground of excessive damages.
Verdict set aside, and a new trial granted.