THOMPSON V. MOESTA. property, or did he refuse to let the plaintiff Moesta have it, or did he place himself in a position where a demand was not necessary ?" It does not appear whether the whole charge was given or not. It is insisted by counsel for defendant in error that the charge in regard to conversion by misusing the property could not have been understood or intended as applying beyond the property misused; and that the latter clause of the general charge was justified by the conduct of Thompson, shown by his own testimony, in denying Moesta's title. If this ground is correct, the other becomes immaterial, and none of the other errors assigned would be important. I think that there is no evidence in the cause which could exonerate Thompson from liability for his denial of Moesta's rights. By the terms of the lease he was bound to restore the property to Moesta as his lessor. It does not appear what the terms of the mortgage were, and it cannot be assumed, without proof, that Mrs. Hasselbacher had, at the time the lease expired, such control as would justify Thompson in obeying her orders in defiance of Moesta. He was bound to return the property, or make out a right to retain it which Moesta would have been estopped from denying. There is no evidence in any way tending to show this, except a statement made by Hasselbacher and denied by Moesta, that Hasselbacher told the latter he must not remove the property from the shop until the mortgage was paid or reduced, and that Moesta replied, "All right,” and Hasselbacher told this to Thompson and directed him to let nothing go until the mortgage should be reduced. There was nothing in this talk, if it was had, which created any agreement, or in any way changed the rights of the parties, and it is not claimed that Moesta joined in giving Thompson any such directions. As the case stood in the circuit, defendant there admitted he had asserted Hasselbacher's rights as paramount, THOMPSON v. MOESTA. and refused to recognize Moesta's. This was a clear con version, and no further fact was necessary to give a right of action. Caunce v. Spanton, 7 M. & G., 903; 2 Greenl Ev., § 644. I think the judgment should be affirmed. William Darmstaetter v. John D. Moynahan. Master and servant: Respondeat superior: Contractor. One who employs another to fill his ice-house by the cord, and obtains license from the munici pal authorities to incumber the street for that purpose, cannot shield himself from liability for injuries caused by unlawfully obstructing the street with blocks and fragments of the ice, under an objection that his employe was a contractor and alone liable. Detroit v. Corey, 9 Mich., 165, cited and held to be decisive of the question. Heard April 23. Decided April 29. Error to Wayne Circuit. Ward & Palmer, for plaintiff in error. Alfred Russell, for defendant in error. The plaintiff in error owned and occupied certain premises in Detroit upon which was an ice-house. Desiring to fill this house with ice, he obtained a license from the city to incumber the public street passing the premises, for the accomplishment of that object. He then hired one Kehl to fill the house, and agreed to pay him therefor two dollars and fifty cents per cord. Kehl in doing this work, left a pile of blocks and fragments of ice (covered with snow), of considerable size, and extending from the premises from six to nine feet out into the street. The defendant in DARMSTAETTER V. MOYNAHAN, error, being out in the evening on a sleigh ride with his family, and passing along this street, and having no warning by light or signal of the existence of this obstruction, ran upon it, whereby his sleigh was upset, and himself and wife injured. He thereupon brought suit against the plaintiff in error and recovered, and the latter now claims that if any one is liable it is Kehl, who, it is urged, was a contractor with the plaintiff in error for putting up the ice, and acting in entire independence of the latter, and holding no such relation to him as to give an action against him for the negligence of Kehl. The jury expressly found that in the contract for putting in the ice nothing was said as to any right in plaintiff in error to control the manner of proceeding. It is admitted that if the relation between Kehl and plaintiff in error was not of that independent character claimed for it, the judgment cannot be disturbed. The case appears to be within the principle declared in Detroit v. Corey, 9 Mich., 165. In the opinion of the majority of the court it was said, that "when the relation of principal and agent, or master and servant, exists, the rule of respondeat superior is applicable, but not when the relation is that of contractor only. In all ordinary transactions the relation of contractor excludes that of principal and agent, or master and servant. But there is not necessarily such a repugnance between them that they cannot exist together. The difference between them is, that a contractor acts in his own right and for himself, whereas an agent or servant acts for and in the name of another." The majority of the court considered the city liable upon the ground that while the contractors acted for themselves, they were at the same time, and in respect to the acts complained of, the agents of the city. And it was observed that the sole right they had for making the excavation was as agents for the city; since if they had been proceeded against by indictment for creating a public nuisance they could not have justified in their own right, but only as agents of the city under their DARMSTAETTER . MOYNAHAN. contract. Without pausing to inquire into the application there made of the principle, I am not aware of any objections to the principle itself, and it seems to me to apply plainly and fully to the case before us. The plaintiff in error and Kehl seem to me to stand beyond question in the relation of principal and agent, according to the view taken in the foregoing case. The business of Kehl was to pack, on the premises owned and occupied by the plaintiff in error, an amount of ice equal to the capacity of the house, and for which he was to be paid an agreed price per cord. The arrangement neither implied nor contemplated that Kehl should be master of the possession, or have any other or further right of entry than such as would be reasonably involved in his hiring to put up the ice; and the plaintiff in error does not appear to have invested him with any exclusive authority as to the style in which the work should be done, or to have waived the right to interpose and direct as to the mode of doing it. The work was to be done for plaintiff in error, and under the protection of a license given by the city to him as a personal privilege; and it cannot be presumed to have been understood that this license should be used as Kehl might choose, though contrary to its spirit or beyond its import. The license was obtained by the plaintiff in error as his own shield in carrying on a piece of work by and for himself, and the work was done under it by himself by means of Kehl, who was his instrument. If Kehl had been prosecuted for creating a public nuisance, he could not have "justified in his own right," but would have been compelled "to justify as agent" of the plaintiff in error under his contract. I am therefore of opinion that the relations between Kehl and plaintiff in error were such in respect to the creation of the mischievous obstruction as to implicate the latter in responsibility for injuries to third parties not in fault.-See Sadler v. Henlock, 4 El. & B., DAENSTAETTER . MOYNAHAN. This view, if correct, makes it needless to go further, and, by the concession of plaintiff in error, justifies an affirmance of the judgment. The other Justices concurred. James Black and another v. Eber B. Ward. Promissory notes: Payable in Canada, “in Canada currency." A note made and endorsed in Michigan and payable in Canada, “in Canada currency," is payable in money, and is therefore negotiable; such a phrase in a note made here means no more than that it is payable in Canada money at the Canadian standard, as it would have been without such phrase if made and payable there. The use of a superfluous phrase of this kind is too common to indicate or permit any inference that it is to change the natural meaning of the instrument; and this is especially so when such forced construction impairs the validity of a contract. Ignorance of the law. Every one is usually bound as if he had a knowledge of the law, whether he has it or not; but there is no rule which conclusively presumes such knowledge as a fact, where that fact is important. Cases referred to expounding the maxim, Ignorantia legis non excusat. Heard April 23 and 24. Decided April 29. Error to Wayne Circuit. John H. Bissell and Douglass & Miller, for plaintiffs in error. T. C. Owen and Pond & Brown, for defendant in error. CAMPBELL, J. Ward was sued as endorser of a note made and endorsed in Michigan, but payable in Canada, expressly in "Canada currency." The circuit court held it was, upon its face, payable otherwise than in money, and not negotiable. This is the only important question before us. |