McNeil v. Kendall.

recover from the defendant the rent accruing upon his lease. Chief Justice SHAW in delivering the judgment said: "It would be too narrow a construction to hold that this was only an assignment of the instrument or document; it means all the right, title and interest, which he holds, or has title to hold, under the instrument. It clearly embraced the transfer of all right to the use and enjoyment, for the residue of the term, of all that part of the leased premises which had not been underlet to Deshon. Had the sub-lease to Deshon been surrendered, or forfeited by non-payment of rent, the assignment would have passed to the assignee the right to use and enjoy that part of the premises let to Deshon, for the residue of the term. It was therefore a substantial interest intended to be assigned." "And it is to be considered, that Patten, the plaintiff, by force of that assignment of Walker to him, for the whole term, had become assignee of the lessee, and as such liable to the action of the original lessor for the entire rent. In order to enable him to meet that obligation, equity required that he should have the entire benefit of the term, including not only the use and occupation of the part not underlet, but also the rent accruing from sublessees, of all such parts of the premises as were held by them; and therefore it must have been the intention of the parties, in the assignment, that the assignee should take upon himself the burden of paying the whole rent, and be entitled to the benefit of the whole of the leased premises; and that Walker, the original lessee and assignor, being relieved from the payment of any rent to the original lessor, could have no right to receive rent of a sub-lessee."

In the case at bar, McNeil acquired under the levy and sale all the right, title and interest of Samuel T. Ames in a considerable portion of the leasehold estate not let to the defendants. By the terms of the lease to the defendants, Samuel T. Ames had the right to re-enter if the defendants failed to pay rent, or committed strip or waste, and this right passed to McNeil under the conveyance from the sheriff of all the right, title and interest of Samuel T. Ames in the leasehold estates.

We are not aware that the decision in Patten v. Deshon has ever been judicially questioned; nor has any case been called to our attention, in which, upon the same state of facts, a different rule has been declared. It has been cited with approval in numerous cases in our own reports; it has been the law in Massachusetts for more than twenty years, and lays down a just and equitable rule, not incon

George v. Gobey.

sistent with the established principles of law. Buffum v. Deane, 4 Gray, 385, 393; Hunt v. Thompson, 2 Allen, 341; Way v. Reed, 6 id. 364; Sanders v. Partridge, 108 Mass. 558, 560; McNeil v. Ames, 120 id. 481; Porter v. Merrill, 124 id. 534; Farrington v. Kimball, 126 id. 313. See, also, Shumway v. Collins, 6 Gray, 227.

The plaintiff, McNeil, entered upon the premises after the sale, notified Lucy Ann Harris of his assignment, and that he would pay rent to her; and also gave notice to the defendants that they must pay rent to him; and we are of opinion, for the reasons stated, that he is entitled to recover. It therefore becomes unnecessary to consider the other questions so ably argued at the bar, or to review the numerous cases cited by the counsel. By the terms of the report, in the first case the exceptions must be overruled; and in the second case the entry must be

Plaintiff nonsuit.

GEORGE V. GOBEY.

(128 Mass. 289.)

Master and servant — responsibility of master for illegal act of servant forbidden

by him.

A master is civilly liable to a statutory penalty for an illegal sale of intoxicating liquor made by his servant, without his knowledge or consent, and against his instruction.*

A

CTION for a penalty. The opinion states the facts. The plaintiff had judgment below.

J. Hopkins, for defendant.

J. E. Day, for plaintiff.

SOULE, J. At common law the master is responsible for the wrongful acts of his servant done in the execution of the authority given by the master, and for the purpose of performing what the master has directed, whether the wrong done be occasioned by the

*See note, 25 Am. Rep. 362.

George v. Gobey.

mere negligence of the servant, or by a wanton and reckless purpose to accomplish the master's business in an unlawful manner. But if the servant goes outside the scope of his employment and does a wrongful act, for a purpose of his own, and not in the performance of his master's business, the master is not responsible for such act. Howe v. Newmarch, 12 Allen, 49; Ramsden v. Boston & Albany Railroad, 104 Mass. 117; s. c., 6 Am. Rep. 200; Hawks v. Charlemont, 107 Mass. 414; IIawes v. Knowles, 114 id. 518; s. c., 19 Am. Rep. 383; Levi v. Brooks, 121 Mass. 501. The fact that the act done is contrary to an express order of the master will not exonerate him. Philadelphia & Reading Railroad v. Derby, 14 How. 468. We see no reason why the general principle which governs the responsibility of the master for the acts of his servant should not apply in the case at bar. The action is brought under a statute which makes that a tort which was not so before, and provides for the recovery of damages against the tortfeasor. The tort consists in selling intoxicating liquor to one who has the habit of using it to excess, after notice of his habit and a request from his wife not to sell such liquor to him. The defendant engages in the business of selling liquor voluntarily. He chooses to intrust the details of the business to a servant. If he forbids the making of sales to the intemperate person, and his servant negligently, through forgetfulness of the instruction given him, or through a failure to recognize the person, continues to make sales to that person, there is no reason why the defendant should not be responsible for the wrongful act. The sale is his sale, made in the performance of his business, and is an act within the general scope of the servant's employment. The ruling which the defendant asked was properly refused. It does not state a combination of circumstances which would relieve the master from responsibility.

It is to be borne in mind that this is a civil action, and that the rules which govern it differ from the rules which govern criminal proceedings. Roberge v. Burnham, 124 Mass. 277.

What would be the result if it appeared that the servant, knowing the instruction given by his master, made the sales with the intention of disobeying him, and for his own purposes, and not for the purpose of doing his master's business, we have not considered, because that question is not before us. And we have treated the ruling asked for as intended to present the case of instructions given to the servant in good faith; for it would hardly be contended VOL. XXXV-48

Dolliver v. St Joseph Fire and Marine Insurance Company..

that instructions not to sell, which both master and servant understood to be a mere form of words, exonerated the master from the consequence of a wrongful sale made by the servant.

Exceptions overruled.

DOLLIVER V. ST. JOSEPH FIRE AND MARINE INSURANCE COM

PANY.

(128 Mass. 315.)

Insurance -fire-statement of interest and ownership — mortgage.

A fire policy was conditioned to be void upon a decree of foreclosure, or in case the interest of the insured was not truly stated, or was any other than the entire, unconditional and sole ownership of the property. The property was subject to an existing and undisclosed mortgage and a lease for years. Held, no breach.*

A

CTION on a policy of fire insurance. The opinion states the case. The defendant had judgment below.

8. B. Ives, Jr. & L. S. Tuckerman, for plaintiffs.

A. S. Wheeler, for defendant.

SOULE, J. The plaintiffs are the assignees in bankruptcy of Abraham Day, who, being the owner in fee of the buildings described in his policy, subject to certain mortgages and to a lease running for about three and one-half years, obtained the policy sued on; and the buildings having been destroyed by fire, bring this action to recover the amount for which they were insured. The plaintiffs were appointed assignees after the loss. The defendant contended,, and the chief justice at the trial ruled, that the action could not be maintained, because no mention is made in the policy of the incumbrances on the title to the property destroyed. This ruling was based on the following provision of the policy: "4. If the interest of the assured in the property be any other than the entire, unconditional, and sole ownership of the property, for the use and benefit of the assured, or if the building insured

* See Byers v. Farmers' Ins. Co., post.

Dolliver v. St. Joseph Fire and Marine Insurance Company.

stands on leased ground, it must be so represented to the company, and so expressed in the written part of this policy, otherwise the policy shall be void." This provision is in the body of the policy, and is inserted for the benefit of the insurer. It is to be construed strictly against it, and liberally in behalf of the assured. If, therefore, its terms can be satisfied by a construction which will save the policy, and at the same time accord with the established rules of law. such construction must be adopted.

It has long been settled in this Commonwealth, that as to all the world except the mortgagee, a mortgagor is the owner of the mortgaged lands, at least till the mortgagee has entered for possession. Willington v. Gale, 7 Mass. 138; Waltham Bank v. Waltham, 10 Metc. 334; White v. Whitney, 3 id. 81; Ewer v. Hobbs, 5 id. 1; Henry's case, 4 Cush. 257; Howard v. Robinson, 5 id. 119; Buffum v. Bowditch Ins. Co., 10 id. 540; Farnsworth v. Boston, 126 Mass. 1. This being the law, and the mortgagees not being in possession of the premises, the plaintiff's assignor might well be described in a policy of insurance as the owner of the property insured; and inasmuch as his estate was in fee simple, not an estate for life, and not a base, qualified or conditional fee, it might well be described as the entire and unconditional ownership; and as he had no joint tenant nor tenant in common, his estate was well described as the sole ownership. As between him and the defendant, the mortgages and the lease were mere incumbrances on his title, not affecting its character as entire, and not changing it from an absolute to a conditional estate or ownership. Even as between him and the mortgagees, the mortgagees' estate was the conditional one, determinable by satisfaction of the condition set out in the mortgage deed. There was no joint tenancy nor tenancy in common of the mortgagor and the mortgagees. All the characteristics of such tenancies are lacking in their relations to the property.

The lease for years created only a chattel interest in the premises, not affecting the ownership of the fee. It was merely an incumbrance. It has been held by the Supreme Court of the United States, in a recent case, that an outstanding lease did not invalidate a policy in which the ownership of the assured was described as entire, unconditional and sole. Insurance Co. v. Haven, 95 U. S. 242. And we do not understand that the ruling in the case at bar was supposed to rest on the existence of the lease.

The policy sued on provides, in the condition numbered 1 that,