The opinion of the court was delivered by
Kellogg, J.This was an action upon the case, charging the defendant with an injury occasioned to the plaintiff by the negligence of the defendant’s servant. Upon the facts disclosed in the case, the court below instructed the jury, that the defendant was not personally liable for the injury done to the plaintiff. This decision being excepted to, the case is brought here for the opinion of this court. The defence relied upon is, that at the time of the injury, of which the plaintiff complains, the ferryman, whose negligence occasioned the injury, was not the servant of the defendant, and that shé was in no manner accountable. The decision of the question depended upon the construction given to an instrument executed by the defendant to one Bailey and referred to in the. bill of exceptions. It was therefore a proper subject for the determination of the court.
That the defendant, in March, 1848, leased her farm and ferry, by parol agreement, to Hobbie, for one year, upon the terms and stipulations contained in her written lease to Bailey, is not controverted, and that Hobbie then went into the occupancy of the demised premises, under the lease, is not denied. Nor is it questioned, that if the contract of letting by the defendant to Hobbie was such as to divest the defendant of the occupancy and control of the farm and ferry, and vest the same in Hobbie for the term of the demise, the defendant would not be liable for injuries occasioned by the negligence of Hobbie. In other words, if, by the contract, *174Hobbie became the tenant, rather than the servant, of the defendant, she is not responsible for his acts.
But it is urged, that the contract with Bailey was not a lease of the premises. It is difficult to perceive any tenable ground, upon which this objection is founded. The instrument certainly contains the usual covenants and all the ordinary characteristics of a lease. It is, however, contended, that though the instrument be regarded as a lease, yet that it did not divest the defendant of the control of the premises. This objection, we think, is equally unfounded. There is no reservation of a right to the defendant to interfere with or in any manner control the lessee in the management of the premises. The lease does, indeed, bind the lessee to a very strict and faithful performance of the stipulations therein ; but upon his failure to perform the same, the lessor’s only remedy would be by suit for a breach of the covenants. It is the ordinary case of a lease of premises, to be managed and controlled by the lessee during the continuance of the lease; and the lessor, during the term,'had no more authority than a stranger, to disturb the lessee in his occupancy, or in any manner interfere with his right to the management and control of the premises. It cannot, therefore, as it appears to us, be said, that the defendant, at the time of the injury complained of, had any control over the acts of Hobbie; and if she had no right to control him, she cannot be made responsible for his acts.
It is farther insisted, that the clause in the lease, securing to the defendant a moiety of the earnings of the boat, created such an interest in the defendant in the profits of the ferry, as makes her responsible for the negligence of Hobbie in the management of the same. We cannot, however, yield our assent to this proposition. There is nothing in the lease to warrant such a conclusion. The object of this clause is simply to fix the amount of rent, to be paid for the use of the ferry, and the same is to be ascertained by the amount of the receipts. And the fact, that the rent of the ferry is to be paid by weekly instalments, does not change or vary the legal character and effect of the lease. There is no pretence for saying, that the defendant and her lessee, Hobbie, are partners in the matter of the ferry. She has no authority to appoint or employ ferrymen, or to control them, when employed by Hobbie.
*175It is farther urged, that the clause in the lease, making the lessee liable to the defendant “ for all damage occasioned by wilful misconduct, or neglect, in the management of the farm and premises, and in the management of the ferry and boat,” subjects her to the present suit. We do not think, however, that this part of the lease is open to such a construction, or that the parties to it ever contemplated such a liability. The liability imposed upon Hobbie by this clause applies as well to the farm as to the ferry, and we think it only applies to such damages, as should result to the reversionary interest of the defendant from the misconduct or neglect of the lessee. Should the ferry be rendered less valuable to the defendant by reason of misconduct or neglect of the lessee, it would doubtless be a breach of this covenant, for which he would be liable. So if by his misconduct the boats should be injured, he would be responsible to the defendant. In fact, any injury to the demised premises, injuriously affecting the reversion and occasioned by the misconduct of the lessee, would render him liable to the defendant; but we do not think, it was ever intended by the parties to embrace injuries done by the lessee to third persons, and for which the law in no manner makes the defendant responsible.
The judgment of the county court is affirmed.