specially concurring.
I concur in nearly all of the opinion by Surrogate Judge Erickstad, but I respectfully disagree with the reversal of the judgment notwithstanding the verdict on the question of agency. In my view, Surrogate Judge Erickstad’s opinion confuses basic concepts of agency law, decides a different agency question than the one appealed here, and creates unsettling confusion about the result. Nevertheless, since the opinion does affirm Hector’s judgment against Airport Plaza, as well as the judgment of indemnity against Airport Plaza in favor of Meinecke-Johnson and Northern Improvement, I specially concur in the result.
In the contract with Meinecke-Johnson for performance of the work on the mall, Airport Plaza made Metro Centers its agent. The contract agreed that Mei-neeke-Johnson would “construct all of the site work for the Premises and certain improvements on the K Mart parcel” for Airport Plaza. That contract recited that Airport Plaza was owner of “an option to *125purchase four parcels” and designated Metro Centers as Airport Plaza’s agent for “[a]ny notice to be given hereunder.”
A principal is liable for the tort of an agent committed while acting in the scope of the agency. Restatement (Second) of Agency §§ 215, 219 (1958). Furthermore:
If an act done by an agent is within the apparent scope of the authority with which he has been clothed, it does not matter that it is directly contrary to the instructions of the principal. The principal will, nevertheless, be liable unless the third person with whom the agent dealt knew that he was exceeding his authority or violating his instructions. Thus, if one appoints an agent to conduct a series of transactions over a period of time, it is fair that he should bear losses which are incurred when an agent[,] although without authority to do so, does something which is usually done in connection with the transactions he is empowered to conduct.
3 Am Jur 2d Agency § 273 (1986) (footnotes omitted). See also id., at § 271; Farmers Union Oil Co. v. Wood, 301 N.W.2d 129 (N.D.1980). Because Metro Centers was clearly acting in the scope of the agency, Airport Plaza is liable to the injured party, Hector, even if Metro Centers was also disloyal and acting for its own benefit.
Surrogate Judge Erickstad marshalls evidence that would have permitted the jury to infer “that in directing Meinecke-John-son to place the excess fill on the Hector land adjoining the construction site, Metro Centers was acting on its own behalf and not on behalf of Airport Plaza.” I would not disagree with that permissible inference in a dispute between the principal and agent, Airport Plaza and Metro Centers. But Airport Plaza did not cross-claim against Metro Centers. Thus, this inference is not material to Airport Plaza’s liability as a principal to the injured person, Hector.
The opinion by Surrogate Judge Erick-stad affirms the judgment for Hector against Airport Plaza, and the judgment of indemnity for Meinecke-Johnson and Northern Improvement against Airport Plaza. I agree with those affirmances only because Metro Centers was acting as the agent of Airport Plaza. I see no other clear reason that makes Airport Plaza liable.
“Unless otherwise agreed, an agent is subject to a duty to his principal to act solely for the benefit of the principal in all matters connected with his agency.” Restatement (Second) of Agency § 387 (1958). An agent who commits a breach of contract with the principal is liable to the principal. Id. at § 400. But a principal cannot dodge liability to injured persons for the agent’s acts in the course of the agency when the agent also benefits itself. Here, the trial court correctly instructed the jury about the principal’s responsibility:
A corporation is responsible for the conduct of its ... agents, done within the scope of their authority in the course of their employment or in the ordinary course of the corporation business.
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An agent represents his principal for all purposes within the scope of his actual or ostensible authority. All rights and liabilities that would accrue to the agent from transactions within that limit, if they had been entered into on his own account, accrue to the principal.
A principal is responsible to third persons for the negligence of his agent in transacting the business of the agency, including wrongful acts committed by the agent in and as a part of transacting the business, and for the agent’s willful omission to fulfill the obligations of the principal.
These instructions are the law of the case. This law makes Airport Plaza liable for the acts of its agent, Metro Centers.
If Airport Plaza wants to sue Metro Centers for its breach of loyalty, Airport Plaza is free to seek that indemnity. In that case, the evidence that Surrogate Judge Erickstad marshalls in favor of Airport Plaza would be important. But it is immaterial to the question of whether Airport Plaza is liable to Hector, Meinecke-Johnson, and Northern Improvement, those injured by *126the conduct of Metro Centers in the course of its agency. I would not inject confusing discussion about Metro Centers’s motives into this decision. I would affirm the judgment n.o.v. in all respects.