In Patten v. Woodward Co. (1921)

Cal. App., 197 Pac. 368, a nonsuit was affirmed in an action against a corporation engaged in demonstrating and selling automobiles, to recover for an injury caused by a machine driven by one of its salesmen, where the evidence in substance showed that the car was a secondhand one which another employee brought to the company's place of business, and left with the salesman to dispose of, without any arrangement with the company, and that no commission was paid to the company for the sale of the car.

And in Dearborn v. Fuller (1919)

N. H. —, 107 Atl. 607, where a general sales agent for defendant's motor sales agency invited one who, the day before, had signed a contract to purchase a car, to ride with him, although defendant had a rule that no employee should take anyone in a car other than a customer, and the person invited to ride was injured while riding in the car, it was held that the defendant was not liable, the court holding that the company was not chargeable with knowledge of the presence of the guest, since the agent was acting in a dual capacity as host and agent, and that the company was not bound by his knowledge, and there being nothing tending to show apparent authority in the agent to invite persons to ride, and nothing tending to show a custom by dealers to allow agents to permit persons to ride.

But in Hoffman v. Liberty Motors Co. (1920) 234 Mass. 437, 125 N. E. 845, it was held that the evidence warranted a finding that the driver of the defendant's car which caused the plaintiff's injury was acting as defendant's servant at the time of the accident, where there was testimony that the driver was employed by the defendant as a salesman and demonstrator of its automobiles; that it was a part of his duty to take cars on the street and demonstrate them only when directed by the general manager; that if a sale resulted, he received a commission, but otherwise received no compensation; that he had been ordered by the general manager to take

the car which caused the injury out and demonstrate it, and attempt to sell it to a prospective customer, and be back at a stated time; that he was returning on a road which would take him to the defendant's premises by the time mentioned; although there was also evidence that he and the occupants of the car had been for a pleasure ride after the demonstration had terminated.

And in Long Ben v. Eastern Motor Co. (1920) 94 N. J. L. 34, 109 Atl. 286, a finding was held justified that the driver of the automobile, at the time it ran into plaintiff's car, was the servant or agent of defendant, and that the act was done in the course of, and within the scope of, his employment, where the agreed statement of facts showed that the driver demonstrated and sold automobiles for the defendant, and that his compensation was a commission if he sold, and that, on the occasion in question, he was expressly authorized by the company to demonstrate and sell the machine which caused the damage, and that, while on the way back from demonstrating, the accident occurred.

And in Stern v. International R. Co. (1915) 167 App. Div. 503, 153 N. Y. Supp. 520, 9 N. C. C. A. 949, affirmed on other grounds in (1917) 220 N. Y. 284, 2 A.L.R. 487, 115 N. E. 759, 16 N. C. C. A. 271, a finding that the driver of the defendant's car was acting in the course of his employment at the time of the accident in which plaintiff, an occupant of the car, was injured, was held justified, there being testimony that the driver of the car was the general manager, sales agent, and demonstrator of the defendant automobile company, and that, on the evening of the accident, he was driving one of defendant's cars, and showing off its good points to plaintiff and other persons who were riding in it, although there was also testimony by the defendant's treasurer that he had forbidden the driver of the car to take it out after 6 o'clock, and that, at the time of the accident, he was acting in disobedience of such orders.

So, in Thompson v. Aultman & T. Machinery Co. (1915) 96 Kan. 259, 150

Pac. 587, a finding was held justified that the salesman who was driving defendant's car when plaintiff's wife was injured by its negligent operation was completing a business trip for the defendant, rather than engaging in a pleasure trip on his own account, there being testimony that the salesman had been on a business trip to another state in an automobile which the company furnished; that he had permission to take a vacation, and had decided to begin it on Sunday; that, instead of returning on Sunday to the place where the defendant's home office was located, he spent the day with relatives; that the accident occurred the next day, while he was driving to the place mentioned; that he did some canvassing for the defendant, and sold machines for it until

noon.

And in Higgins v. Bickford (1917) 227 Mass. 52, 116 N. E. 245, it was held that there was evidence warranting a finding that the person driving the defendant's automobile was acting as his servant when the plaintiff was injured by it, there being testimony that the car was used for collections in the business of a company of which defendant was general manager and the driver of the car was assistant manager, and that the car was also used for the parties for their pleasure; that the defendant testified that the driver did not have any of the company's collections at the time of the accident, but that he was using the car at the time on defendant's account. In Fransen v. Kellogg Toasted Corn Flake Co. (1921) — Minn. - 184 N. W. 364, the evidence was held sufficient to authorize a finding that the person driving defendant's automobile at the time injury was inflicted by it, was driving it on the defendant's business, there being testimony that a certain person was in the defendant's employ, and that his work was to advertise and sell its products; that the

automobile was furnished to drive and use for these purposes in the territory in which the accident occurred; that, during business hours, the car ran over and killed plaintiff's intestate; although there was no direct evidence that the person to whom the car was furnished was driving at the time.

In Williams v. National Cash Register Co. (1914) 157 Ky. 836, 164 S. W. 112, where recovery was sought against the defendant for an injury resulting from the negligent operation of an automobile owned by a sales agent of the defendant, and driven by an employee of the agent, and it appeared that the contract under which sales were made to customers provided for free ordinary repairs to cash registers within two years, and for payment for extraordinary repairs during that period and thereafter, it was held that the question whether the driver of the car was engaged in the defendant's business at the time of the accident should have been submitted to the jury; there being testimony that the car was being used to deliver a cash register, but the evidence being conflicting whether the repairs to the register had been made free of charge under the contract of sale, or whether they had been made under a separate contract with the sales agent, and were paid for. On a subsequent appeal in National Cash Register Co. v. Williams (1914) 161 Ky. 550, 171 S. W. 162, the decision in this case was held conclusive on the question whether the case was properly submitted to the jury, there being no essential difference in the testimony, and the decision of the first appeal, that if the driver of the car, when the accident happened, was engaged in the business of the company, it was immaterial whether the sales agent, under the terms of his contract, was obliged to make the delivery, was held to govJ. T. W.

ern.

V.

Master and servant

Mr. Frank A. Morey for plaintiff.
Mr. B. L. Berman for defendant.

Deasy, J., delivered the opinion of the court:

Action on account annexed to re

cover for salary, expenses, and bonus. The plaintiff having recovered a verdict, the defendant brings the case forward on motion.

The plaintiff entered into a contract with the defendant to act as its agent in the sale of milking machines and cream separators. The contract is evidenced by letters.

The agreed compensation was $135 per month, together with necessary traveling expenses, and also a bonus of $25 a month conditioned on the amount of sales. The verdict is based upon a finding that the parties intended and agreed that the contract should continue in operation for a year. This finding is justified, though such period is not explicitly and in terms specified.

On July 23, 1920, the defendant discharged the plaintiff from its service by a letter, an excerpt from which is as follows: "On July 31st,

we are forced to ask you to lay off for an indefinite period. Now, do not misunderstand me, Mr. Harrington. We are not doing this from any dissatisfaction on your part, and we will be very glad to furnish you with a recommendation, or assist you in any reasonable way in securing another position. Kindly send in your photo book and supplies, and a check will be mailed you, less your advance expense money."

The account annexed contains the item: "Salary from Aug. 1st to Dec. 1st, 1920, 4 mos., at $135 per mo., $540."

It also contains a claim for expenses incurred between August 3 and August 10.

II. Adoption. Supplementing 8 A.L.R. 340 (subd. III. of original annotation).

The theory that one who has been discharged before the completion of the term of employment may maintain an action on the contract and recover the contract compensation for the balance of the contract term is adhered to in the following recent cases: Foundation Co. v. Brannen (1920) 25 Ga. App. 120, 102 S. E. 833; Dalton v. American Ammonia Co. (1920) 236 Mass. 105, 127 N. E. 504. And see Hurley v. Great Falls Base Ball Asso. (1921) 59 Mont. 21, 195 Pac. 559, and Boyd v. E. F. Houghton & Co. (1921) 269 Pa. 273, 112 Atl. 530.

In Dalton v. American Ammonia Co. (1920) 236 Mass. 105, 127 N. E. 504, supra, it was held that, the action of debt having been abolished in the state by statute, an employee who had been wrongfully discharged before the expiration of his term may recover in contract upon an account annexed, either for the price fixed in the contract or the reasonable value of the services.

III. Repudiation.

Supplementing 8 A.L.R. 342 (subd. IV. of original annotation).

The following recent cases support the majority doctrine that recovery cannot be had upon the theory of "con

370; HARRINGTON V. EMPIRE CREAM SEPARATOR Co. (reported herewith) ante, 628; Keppler v. Weiner (1921) 189 N. Y. Supp. 76. And see Gerard v. Empire Square Realty Co. (1921) 195 App. Div. 244, 187 N. Y. Supp. 306.

In the reported case (HARRINGTON v. EMPIRE CREAM SEPARATOR CO. ante, 628) the decision that an action on the contract, in the nature of an account annexed for salary, could not be maintained, was upon the ground that wages are predicated on the existence of the relation of master and servant so that they cannot be recovered after the contract has been terminated by the discharge of the complaining employee.

The qualified acceptance in California of the rule repudiating the "constructive service" doctrine, which, as shown in the earlier annotation (p. 345), permits an employee to recover on the contract where the employer has prevented the employee from performing the same, is supported, as regards the exception, by the recent case of Palmer v. Harlow (1921) Cal. App., 199 Pac. 844, wherein it was held that a demurrer to a complaint alleging failure to allow completion of the service should have been overruled. G. J. C.

Treaty effect on state laws.

- scope of power-interference with state taxation.

2. The treaty-making power of the Federal government extends to providing that the subjects of the other con

tracting party shall not be subject to other or different taxation than are the subjects of the state where they are domiciled.