The injury here complained of arose directly from the detention of the plaintiffs’ cattle, on a side track of the railroad, between three and four days, at a place where they could neither be fed nor watered. Several head died, and the others were greatly reduced in flesh and strength.
It is quite difficult .to see how this detention of the train on the side track, for this length of time, can be regarded and held to be an act of negligence, in any degree. It was the deliberate, intentional act of the division freight superintendent of the defendant’s road. It is precisely of the character of the act of any Other party who, after he has undertaken the performance of a job, deliberately stops, and refuses to proceed until he -has-performed another job, subsequently undertaken. To call this negligence, or a *135failure to perform by reason of negligence, would be a misnomer, and an abuse of legal terms. It is simply a deliberate, intentional breach, in no way arising from want of care and attention during performance, but solely from the will. of the defaulting party, claiming the right to perform whenever it should suit its interest or convenience to perform. The defendant refused to be bound, or to undertake upon the ordinary rules governing common carriers of such property, but-insisted upon a special contract, which should constitute the rule and regulate both the rights and liabilities of the respective parties. This special contract was entered into, and must control according to its true intent and meaning. What the meaning is, the court must determine. The defendant received the animals upon its cars, under this contract, and by its terms undertook to forward them to Buffalo, to the consignee, “subject to their tariff, and the conditions expressed.” The tariff" was, confessedly, paid, and all that remained to be done was for the defendant to forward the stock, according to their contract." The stock was started the same day it was received upon the cars, and taken a part of the way to Buffalo; and had the cars containing the stock been permitted to go on with the train, would have reached the place of destination the same night. Instead of this, the cars containing this property were, by a positive and peremptory order, when within sixty or seventy miles of the place of destination, detached from the train and placed upon a side track, where they were kept three or four days, and where several of the animals perished from hunger and the inclemency of the season, and others were greatly reduced in flesh, weakened, and otherwise injured. . They were detained at a place where they could neither be fed nor watered, and where they could not with, any safety be unloaded and taken out of the defendant’s custody.
The only question in the case, in my judgment, is *136whether, according to the “ conditions expressed ” in the special undertaking, the defendant had the legal right to suspend the performance of the undertaking which they had commenced, in this manner, and for this length of time, without rendering itself liable to the plaintiffs for damages occasioned by such suspension. I am clearly of the opinion that it had not. Whatever may be said of these conditions, it certainly cannot be affirmed that they extend to a case of damage arising from the deliberate and intentional act of the defendant,»or its agents, in suspending performance after it had been commenced, and refusing to perform, or to allow performance, until after the property, or a portion thereof, had been destroyed, and other undertakings could be performed. In other words, the defendant did not reserve to itself the right to perform, or not, as it might afterwards elect, or to perform only as it might suit its interest, convenience or pleasure. Such an arrangement, had this been one of that character, could hardly be called a contract, as it would lack the essential ingredient of mutuality of obligation. e The defendant here did undertake to forward the property to a particular place, but by the limitation in the second condition, it did not undertake to forward it “by any particular train, or at any specified hour.” Bor did it undertake to become “responsible for the delivery of the animals within any certain time, or for any particular market.” But to hold that this limitation of duty and liability thus expressed, gave to the defendant the right to perform, or not, as it might choose, or to perform only when it might be for its interest, convenience or pleasure to do so, and suspend performance when once commenced, until all the animals should have perished and become worthless to the owners, would be simply monstrous. Bo court, in my opinion, can be found to give, or tolerate, such an interpretation of the defendant’s undertaking. It must have a reasonable interpretation.
*137Where the object of a contract is to relieve a party undertaking to perform, from some of the obligations and liabilities which the law imposes upon him in the absence of any express stipulation, it is to be construed in reference to that object and purpose. G-eneral expressions exempting a party from liability on account of injuries to property committed to his charge, should never be held to apply to injuries arising from the wrongful acts of the party undertaking, unless it is expressly so stipulated. It cannot be supposed that the owner of property intends to give a party to whom he intrusts, for the time being, its care and custody, license to injure or destroy it wantonly, with impunity, unless it is so expressly “ nominated in the bond” or undertaking.' It is quite incredible that the law holds differently, either in Canada or elsewhere in civilized countries. Courts never construe contracts so as to favor criminal acts, or intentional misconduct, unless constrained to do so by the clearest and most apt terms of the instrument.
If I am right in supposing that this is not a case of an injury arising from negligence in any degree, but a case of an injury arising from a deliberate and intentional refusal to perform, for the time being, then it is quite clear that the act of Barnard, the superintendent, was the act-of the defendant, and the defendant is liable. In every case where a party who has engaged to perform certain labor or services, employs others to perform on his account, and such others, after commencing to perform, refuse to go on, or to allow the work to proceed, such refusal is the refusal of their employer, and if it amounts to a violation of the contract, it is the breach of the employer. Their misconduct, in such a case, is his misconduct, so far as it operates upon the contract- and causes non-performance.
The order of the superintendent, who had charge of the freight business on that portion of the road over which *138the property in question was to be forwarded, was positive, to keep “back all stock, staves and lumber,” and the reason is assigned in the order. “ There will be no duty on stock.” The reciprocity treaty was about to expire, and other property on hand to be transported would become subject to the payment of a duty to our government if not forwarded forthwith. Therefore this agent of the defendant took it upon himself to discriminate in favor of .the owners of such property, to the prejudice of the plaintiffs. Their property which was then on its passage was stopped, deliberately, upon this consideration, and the préference given to other property, contrary to the ordinary course of business. The obvious purpose and intention of the agent was to favor the owners of property about to become dutiable, and deprive our government of the benefit of duties it would otherwise be entitled to receive. Upon the plainest principles, it can make no manner of difference, whether this superintendent was authorized by the defendant to make this order, or not. He was its agent or employee to carry out and perform its contracts, and if he has deliberately broken them, instead of performing, the defendant must answer for such breach.' It was not casual or accidental, but was the direct effect of design and plan. There is nothing about it partaking of the character of negligent conduct, in the legal sense' of that term. The design of postponing performance with the plaintiffs was carried out, to their injury, and. the question is whether the act is authorized by the “ conditions expressed.” I have endeavored to show that it is not, and am clearly of the opinion that the defendant is liable for the act of its agent, Barnard, in arresting the performance of the contract, whatever' may have been his authority, so far as his act or order had the effect to prevent performance, and thus create a breach of such contract. It is always incumbent upon every party to a contract to see that it is performed, and if not, to respond *139in damages for the loss occasioned by the'non-performance ; and there is no exemption from this rule in favor of corporations. ■
The position of the defendant is, in my view, the same precisely that it would have been, had the engineer and conductor, and all the other hands upon the train, willfully and intentionally deserted it, and refused to proceed any further, for the same length of time. In such a case, the question of the power of these persons to bind the-corporation does not arise. If the corporation,, by such agents, or by some other means, does not perform its engagements, it is bound to respond in damages for the breach, to the injured party, and must look for its redress to the agents who have failed to perform their .duty.
"When it is once settled that the contract was not performed by the defendant according to the true meaning and intention thereof, all other questions, except as to the proper measure of damages, become wholly immaterial.
The judgment should therefore be affirmed.
Talcott, J.It is settled, by the decisions in this State, that a carrier, even a railway company, may, by express contract, exempt itself from liability for damages resulting. from any degree of negligence on the part of its servants, agents and employees. But it seems to be equally well settled, and to a great extent by the same authorities, that a contract, to have such effect, must be so clear and explicit in its terms as to leave no doubt that such was the intention of the parties. (The New Jersey Steam Nav. Co. v. The Merchants’ Bank, 6 How. U. S. 344. Wells and Tucker v. The Steam Nav. Co., 4 Seld. 375. French v. The Buffalo, N. Y. and Erie R. Co., 4 Keyes, 108.)
The stipulation relied upon by the defendant to show its exemption’ from liability, in the present case, is as follows:
“1. The owners-of the within mentioned animals, un*140dertake all risk of loss, injury or damage, and other contingencies, in loading, unloading, conveyance and otherwise.”
I am unable to distinguish the legal effect of the language here used, from the expression, “ at the risk of the master and owners,” or “ at owner’s risk.” I do not think the use of the word “ all ” has made the stipulation any more extensive than it would otherwise have been. Unless the word “ risk ” be in some manner qualified, it must .embrace all those circumstances which fall within the term “risk.” It seems to be well settled, and by the court of last resort, that the expression “ at the owner’s risk,” or any equivalent expression, in such a contract, does not cover the gross negligence of the employees of the carrier, so as to exempt the principal from liability for damage caused by it. (Scheiffelin v. Harvey, 6 John. 175. Alexander v. Greene, 7 Hill, 533. Wells and Tucker v. The Steam Nav. Co., 4 Seld. 375. Perkins v. The New York Cent. R. R. Co., 24 N. Y. 196,206. New Jersey Steam Nav. Co. v. The Merchants’ Bank, 6 How. U. S. 344. Smith v. The N. Y. Cent. R. R. Co., 24 N. Y. 222, 234, 235. French v. The Buff. N. Y. and Erie R. Co., 4 Keyes, 108.)
The contract in question in this case presents two circumstances which much aid in thus limiting its construction :
First. All the risk embraced in it is confined to “ contingencies,” a word which, though capable of a much larger signification, would ordinarily be understood as referring only to accidents, or casualties, and as designed only, in such a case as this, to exempt the carrier from his common law liability as insurer against accidents, unattended by negligence.
Second. The third stipulation of the contract, applicable to persons in charge of animals, and to whom free passes are given, expressly and in terms exempts*the company from responsibility for any negligence, default or misconduct of its servants. It is scarcely credible that the parties *141who made this contract, intended to express the same idea, as to the exemption of the company from liability, by the language used in the first, as by that used in the third provision.
There was evidence given in the case tending to show that the injury to some of the cattle of the plaintiffs, and the death of others, had resulted from the gross negligence, and even the absolute misconduct of the employees of the defendant.
It is not easy to see how, if the term risk does not embrace the gross negligence of the carrier, it can be held to cover any degree of such negligence. Yet this distinction seems to have been insisted on in the cases referred to. If it is to be held that although the word “ risk” does not cover the gross negligence of the carrier’s servants, in such a contract, yet it does cover the slight, or any less degree of negligence, than what -is teamed “gross,” there is a difficulty in upholding this verdict on the' ground of negligence, namely, that it does not appear that the jury had decided upon the degree of negligence. The learned justice at nisiprius appears to have adopted the view of the defendant’s counsel, that the contract, by its terms, did exempt the defendant from responsibility for any degree of negligence on the part of those who, in the language of the charge, are “ ordinarily known as the employees of the defendant.” But he further instructed the jury, in substance, that the defendant could not make a valid contract to exempt itself from liability for its own negligence, of whatever degree, and that the negligence of Barnard, the local superintendent of the defendant, was its own negligence, within the meaning of the instruction. To this I am unable to assent. To apply, with any degree of certainty, to a corporation, the two rules referred to by the learned justice, 1st. That the carrier cannot, by contract, exempt himself from liability for his own negligence; and, 2d. That such carrier may contract for exemption 'from *142liability for the negligence of his servants and agents, is somewhat difficult, since a corporation can' only act through its agents. The difficulty is in drawing the line between those agents whose negligence is to be deemed the negligence of the corporation, and those whose negligence is to be regarded as the negligence of mere agents, and covered by a contract' such as the one 'in. question is claimed by the defendant to be. In this case, it would .seem that the discrimination was attempted to be made by confining the exemption to the negligence of those “ ordinarily known as employees.” I do not see that this presents any certain or safe rule, and am not able to say that there is a class of agents of railway companies “ ordinarily known as employees,” to be distinguished from another class not so known; nor do I know any means by which, if there be any such distinction, it is to be determined, as matter of law, whether a particular individual agent belongs to the one or the other class.
If it can be said that any agent who has the power, or is expected or accustomed to exercise any discretion, • within the purview of his duties, is an agent whose negligence is that of the railway company itself, it will be found, I apprehend, that all its agents, down to engineers, conductors and track-masters, are expected and accustomed to exercise more or less discretion within the scope of their special employment and duties. "We have not been referred to any adjudged ease which seems to be an intelligible and direct authority upon this point, except the case of Heineman against this same defendant, in the Superior Court of Buffalo, and decided by a divided court, (31 How. Pr. 454.) The suggestion of the court in that case is, that the negligence, against liability for which it is unlawful for the corporation to contract, is confined to that of the. board of directors. It seems to me, if the rule is to have any force, and it appears to be well established, the negligence^ against liability for which a railway corpora*143tion is not permitted to contract, must be confined to that of the board of directors, or, at all events, cannot be extended beyond that of those managing officers who make the general regulations for the running of the trains and the transaction of the business of the road, for the government of others, binding upon all the subordinate agents.
[Fourth Department, General Term, at Buffalo, June 6, 1870.It appears to me, therefore, that this verdict cannot be sustained under the charge of the court on the question of negligence. I am, however, inclined to the opinion that the verdict may be sustained upon the grounds stated in the accompanying opinion of my associate, Justice Johnson, to wit, that the question of negligence was wholly immaterial, inasmuch as the case, as admitted by the defendant, showed a willful abandonment of, and refusal to perform, the contract on its part, through its agents ; and therefore the instruction of the court, as to the right of the defendant to contract to relieve itself from responsibility for the negligence of its agents, could have produced no injury to the defendant, since a willful abandonment of, and refusal to perform, its contract, is something more than negligence, and something which it cannot be pretended was authorized by the stipulations annexed to the the contract.
Upon this ground, I concur in the affirmance of the judgment.
' Mullin, P. J., also concurred.
Judgment affirmed.
Mullin, P. J., and Johnson and Talcott, Justices.]