Sec. 271. Liability Of Agent For Misfeasance And Nonfeasance

"In Van Antwerp v. Linton, 89 Hun (N. Y.) 417, 419, the court, per Parker J., say: 'as between himself and his master he is bound to serve him with fidelity, and for a breach of his duty he becomes liable to the master, who in turn may be charged in damages for injuries to third persons occasioned by the nonfeasance of the servant. For misfeasance the agent is generally liable to third parties suffering thereby. The distinction between nonfeasance and misfeasance has been expressed by the courts of this State (New York) as follows: "If the duty omitted by the agent or servant devolved upon him purely from his agency or employment, his omission is only of a duty he owes his principal or master, and the master alone is liable. While if the duty rests upon him in his individual character and was one that the law imposed upon him independently of his agency or employment, then he is liable." Burns v. Pathcal, 75 Hun (N. Y.) 433.' The judgment was affirmed on the opinion below (157 N. Y. 716)." 6

4 Criticised in note in 28 L. R. A. 433. 5Citing Cooper v. Tim, 16 Misc. (N. Y.) 372.

Agents for renting property and collecting rents are not liable for injuries to third persons sustained on the property, unless such agents are themselves guilty of misfeasance.7

In an Illinois case,8 the agents were subjected to liability under the following circumstances: certain real estate brokers were agents for renting certain premises and had complete control thereof, repairing same in their discretion. They rented the property and by the lease the tenants covenanted to keep the premises in repair. At the time of renting, however, the premises, and especially a door thereon, were in need of repair, and the agents agreed to repair it. This was not done, and an expressman delivering goods on the premises was so injured by the falling of this door that he died. The court in holding the agents responsible said: "An agent is liable to his principal only for mere breach of his contract with his principal, but he must have due regard to the rights and safety of third persons. He cannot in all cases find shelter behind his principal. * * * It was not his contract with the principal which exposes him to or protects him from liability to third persons, but his common-law obligation to so use that which he controls as not to injure another. That obligation is neither increased nor diminished by his entrance upon the duties of agency, nor can its breach be excused by the plea that his principal is chargeable. If the agent once actually undertakes and enters upon the execution of a particular work, it is his duty to use reasonable care in the management of executing it, so as not to cause any injury to third persons which may be the natural consequence of his acts; and he cannot escape this duty by abandoning its execution midway and leaving things in a dangerous condition by reason of his having so left them without proper safeguards."9 The court then quotes from Mechem on Agency, Sec. 572, to the effect that while an agent may not be liable to third persons for not doing that which is imposed upon him by virtue of his relation, he is so responsible for that which is imposed upon him by law, i. e., the same "not doing" which constitutes actionable negligence in any relation.10 The court also refers to Campbell v. Portland Sugar Co., 62 Me. 552, as a parallel.

6Dunham v. City Trust Co., 115 App. Div. 588 (N. Y. 1906). See also Hagerty v. Montana Ore Purcta. Co., 98 Pac. 643 (Mont. 1908), (referring to Ellis v. McNaughton, 76 Mich. 237; 42 N. W. 1113; 15 Am. St. Rep. 308; Baird v. Shipman. 132 111. 16; 23 N. E. 384; 7 L. R. A. 128; 22 Am. St. Rep. 504; Mayer v. Thompson-Hutchinson Bldg. Co., 104 Ala. 611; 16 So. 620; 28 L. R. A. 433; 53 Am. St. Rep. 88). See critical note in Mayer v. Thompson Co., 28 L. R. A. 433 (1894), and see also Hodgson v St. Paul Plow Co., 50 L. R. A. 644.

7 Minnis v. Younker, 118 N. W. 532 (Iowa 1908).

8 Baird v. Shipman, 132 111. 16; 7 L. R. A. 128 (1890).

The agents' liability in the case of Baird v. Shipman is put upon the ground that when they rented the premises to the tenant in a dangerous condition, they voluntarily set in motion an agency which, in the ordinary and natural course of events would expose to injury persons entering the barn where the accident occurred. If the insecure condition had arisen after the letting to the tenant, the court said a different question would be presented, "but as it existed before and at the time of the letting, the owner or persons in control are chargeable with the consequences."11

9 Citing Osborne v. Morgan. 130 Mass. 102.

10 Citing Lottman v. Barnett, 62 Mo. 159; Martin v. Benolst. 20 Mo. App. 263; Harriman v. Stowe. 57 Mo. 93; Bell v. Joeselyn, 3 Gray 309.

11 Citing Grldley v. Bloomington, 68 111. 47; Tomle v. Hampton, 21 N. E. (111.) 800.