and cripple its facilities for handling its business, merely to save money,"-and, further quoting from Pennsylvania Railroad Co.'s Appeal, 93 Pa. St. 150, there "must be a necessity that arises from the very nature of things, over which the corporation has no control. It must not be a necessity created by the company itself for its own convenience, or for the sake of economy." While it is not meant to be said that this standard should be enforced without qualification, against private rights to the natural use of property, it nevertheless illustrates the basis of necessity on which the exercise of such rights to the damage of another, without compensating him, must rest. Each party has clear rights to the use and enjoyment of property, and each must concede something for the preservation of the other. conflict is irreconcilable, the right to use one's own must prevail; but it can only do so without compensation where the resulting damage is not avoidable at all, or only at such expense as would be practically prohibitory. In the charge and answers to several of the points the learned judge used the expressions, "at slight expense," "at small expense," etc., in reference to the duty of defendants to prevent the salt water from flowing on plaintiff's land. This was not giving the jury a proper standard. Judgment reversed, and venire de novo awarded.

Where

HOOKS et al. v. FORST et al. (Supreme Court of Pennsylvania. Jan. 7, 1895.) LANDLORD AND TENANT-OIL LEASE-SURRENDER BY PAROL-EVIDENCE-AGREEMENT BY PART OF JOINT LESSEES-WHEN BINDING ON ALL-EJECTMENT-INSTRUCTIONS.

1. Where an oil lease for 15 years provides that the lessees shall have the right at any time to surrender the lease, and be released therefrom, ne lessees can surrender the lease by parol, at any time before they take actual possession.

2. Where, by the terms of an oil lease, the lessees have the right to surrender the lease by parol agreement, the evidence to establish such agreement must be clear, precise, and undoubted, and show that the minds of both parties assented to the same thing in the same sense.

3. Where, by the terms of an oil lease to three persons jointly, the lessees have the right to surrender the lease by parol, the third is bound by the declarations and acts of the other two respecting such surrender.

4. In ejectment by three joint lessees of land for oil purposes, defendants gave evidence that plaintiffs had surrendered the lease by parol, as their lease permitted, and the court charged that, unless defendants had proven a surrender or rescission of the contract, plaintiffs were entitled to a verdict. Held, that the charge was sufficient as to the necessity of the agreement to surrender to be by all three lessees, in the absence of a request for more specific instructions on the evidence.

Appeal from court of common pleas, Butler county; Aaron L. Hazen, Judge.

Ejectment by Gilbert Hooks, M. Lahey, and W. R. Stoughton against Barney Forst and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

W. H. Lusk and Thompson & Son, for appellants. Lev. McQuistion, for appellees.

DEAN, J. Thomas Anderson was the own. er of a tract of land containing about 50 acres, in Adams township, Butler county. On the 30th of October, 1889, by writing duly executed, he granted to Campbell, Lahey, and Stoughton the exclusive right to drill and operate for oil and gas on this land. The term was for 15 years, and so long thereafter as oil or gas was produced in paying quantities. In consideration thereof the lessees agreed to give to Anderson one-eighth part of all the oil produced; if gas was found, $200 annually was to be paid for each well; and, further, they were to pay to Anderson $100 per month rent until one well was completed. Anderson reserved the right to the surface for cultivation. The lessees stipulated for the right to surrender the lease at any time, and thus relieve themselves from further obligation, but the payments theretofore made were to be retained by Ander

The lessees paid $100, the first month's rental, at the execution of the lease, on the 30th of October, 1889, and also a second $100on the 30th of November following. They made no further payments, nor did they do anything in the way of development. When the third $100 was due, January 1, 1890, the lessees were unable to pay it, and asked Anderson for an extension of time. This, defendants allege, was granted on the condition that, if not paid at the end of three weeks, the lease should be surrendered or rescinded. The money was not paid, and defendants allege that these lessees and Anderson, in pursuance of the understanding before had, mutually agreed to a rescission, and Anderson was verbally authorized by them to lease to others. On the 17th of June, 1891, about 16 months after the alleged res cission, Anderson leased the same premises to defendants, who went into possession for the purpose of boring for oil, and made successful developments. Then plaintiffs brought this ejectment, claiming the exclusive right under their first lease. In the meantime Campbel! transferred his interest to Hooks. On the trial there was conflicting evidence as to the fact of rescission, which the court submitted to the jury, who found for defendThe court afterwards entered judg ment on the verdict, and we have this appeal by plaintiffs, the first lessees.

Although there are many assignments of error, the real question on which the case turns is, was there a rescission of plaintiffs' lease? Anderson had no right to rescind for nonpayment of the $100 monthly rental, but he had a right to enforce payment by personal action against the lessees on each monthly default. Unless this were avoided, any right they had would, in a comparatively short time, have been divested. The lessees had the right at any time to surrender the lease, and relieve themselves from liability

for the fast recurring monthly payments. In this event, they lost what they had paid, but nothing more. They had paid two monthly installments, and defaulted on the third. Defendants' evidence showed that, at this time, Campbell and Lahey called on Anderson at his barn, and asked for time on the payment then due. It was agreed between them that the time should be extended three weeks, and, if the money was not then paid, they would surrender the lease. At the end of that time Lahey told Anderson he could not raise the money; that he (Anderson) should go on and lease to any one, and he would bring the lease back; that he would have delivered it then, but had forgotten it. He told Anderson half a dozen of times to go ahead and lease the land, and that he would fetch the lease back. As to the agreement to surrender, if the money was not paid in three weeks, Anderson is corroborated in all his material statements by four witnesses. Campbell, one of the lessees, on cross-examination, admitted, substantially, the agreement as alleged by defendants. The decided weight of the evidence shows that there was a positive agreement to rescind, if the money was not paid at the end of three weeks. It was not paid, and one of the lessees told Anderson to go on and lease to others. Campbell even admits that he had the lease along for the purpose of giving it to Anderson at one time, but because of some fancied personal insult to himself, did not do so. It was not necessary to a rescission that there should be a formal redelivery or cancellation of the lease. Any course of conduct of the parties clearly evincing an intention to rescind a contract such as this works a rescission of it. As is said in M'Kinney v. Reader, 7 Watts, 123: "What is wanting to the rescission of an executory contract is the assent of the parties; and it may be signified by their words or acts. The rescission of a lease by express words is called a 'surrender in fact,' and when by acts so irreconcilable to the continuance of the tenure as to imply the same thing it is called a 'surrender in law.'" This was said of a lease for a term less than three years, and as the lease itself, under the statute of frauds, was not required to be in writing, it may be argued that a rescission of it could be established without any special or formal surrender; but the principle in that case is equally applicable to this. Here it is stipulated that the lessees "shall have the right at any time to surrender up this lease, and be released from all moneys due and conditions unfulfilled." There was no right in the lessor to rescind. There was a right in lessees to do so at any time. As to them, the continuance of the term was dependent on their will. They did not absolutely covenant to develop the land. They only agreed to bore, or pay $100 per month if they did not, with the option to relieve themselves of this obligation whenever they chose. Such a right or privilege could be surrendered by

parol, for the possession up until operations commenced was only constructive. There was no actual possession to surrender on part of lessees; therefore none to be presumed on part of lessor to complete a rescission. They had no vested estate in the oil and gas under the land until, by the necessary expenditure, they demonstrated their existence. Oil Co. v. Fretts, 152 Pa. St. 456, 25 Atl. 732. The alleged tender after the rescission, even if it had been proven, would not, if rescission had been consummated, revive the lessees' right or privilege. On the evidence bearing on a rescission or surrender of the contract, the learned judge of the court below gave full and explicit instructions to the jury, of which the appellants certainly have no right to complain. While he properly said such a right as lessees claimed might be surrendered by parol agreement, he also said the evidence to establish such agreement must be clear, precise, and undoubted; that the minds of both parties must have assented to the same thing in the same sense. On this, the main question in the case, there was no error. As to the argument that the declarations and acts of Campbell and Lahey could not affect the right of Stoughton, the other les see, who was not present, it would be well made if they had been tenants in common of the land. One tenant in common cannot divest the estate of his cotenant by declarations or deed. But these lessees were not tenants in common. They were joint grantees of a right or privilege which had never been exercised, and were bound jointly to perform the covenants of the contract on which the right depended. The obligation was not severable. When Campbell and Lahey secured the extension, they secured it for all. Stoughton had the benefit of it. He never paid, or offered to pay, and never, so far as appears, objected to the acts of the other two. When he makes this objection, he stands here in the attitude of not consenting to the two monthly installments which were paid; not joining in the solicitation for an extension which was granted; not authorizing or consenting to the tender which was alleged to have been made after the rescission; not paying, or offering to pay, to Anderson any one of the 16 monthly rentals due before the commencement of the suit. Starting with the lease to them jointly, down through all the subsequent conduct of the parties, there was ample evidence to warrant the jury in finding that Campbell and Lahey, with the knowledge and consent of Stoughton, acted throughout for all of them; if so, he was bound by their acts. The plaintiffs asked no instructions in the court below on the evidence bearing on this question, although they presented 11 written prayers for instructions to the jury. In the general instructions, however, more than once, the court said to the jury that unless defendants had proven, by evidence clear, precise, and indubitable, that the lessees had agreed to a

Appeal from court of common pleas, Mercer county; S. S. Mehard, Judge.

Action in a justice court by the township of French Creek, for the use of W. C. Pringle, against Seth L. Moore. From a judgment, on appeal to the circuit court, for plaintiff, defendant appeals. Reversed.

W. H. Cochran, for appellant. S. R. Mason, for appellee.

DEAN, J. This issue involves but little law, and less money. The judgment is for $19.12. We suppose the expense of paper books and counsel fees, on each side, will foot up five times that sum. The defendant was a resident and taxpayer of the township for some years prior to 1892, and had furnished lumber and other material to the road supervisors for repair of bridges and culverts, for the price of which he usually received credit on his road taxes. In December, 1892, Moore claimed there was a balance due him from the township of $14.50, and requested settlement and payment. The supervisors refused, and he entered suit against the township before John Peters, a justice of the peace. On the day of hearing, December 10, 1892, the parties appeared,-the township by the road supervisors, and the justice makes this entry on his docket: "Parties appear and settle, by defendants giving plaintiff a credit in full of all road tax assessed against the plaintiff for each and every year to this date, including the tax laid for 1892; the plaintiff to pay the costs taxed. Witnesses all agree not to charge costs in case. This settles all matters at variance." This entry was read out publicly by the justice, in the hearing of all the parties, and both of the supervisors read it. Then Moore paid the costs provided in the settlement, amounting to $1.05. On March 4, 1893, the township brought suit against Moore before an

other Justice,-George J. Patton. In this suit the claim was for taxes on the tax duplicates for years 1890, 1891, and 1892, amounting to $29.60. At the hearing, both parties were represented by counsel, and 12 witnesses were sworn. The plaintiff averred that this demand had not been included in, and formed no part of, the settlement before Justice Peters, in the December previous. The defendant alleged that it was settled in that suit. The justice gave judg ment against Moore for the full amount, $29.60, and costs. Moore paid the costs, and appealed to the common pleas. On trial there, the learned judge of the common pleas, after a most patient hearing, being of the opinion that, as the justice's docket was not a record, it was simply a question of fact, for the jury, as to what was embraced in the settlement. The jury found for plaintiff, and from the judgment entered on that verdict defendant appeals to this court, assigning for error the refusal of the court below to instruct the jury that the settlement on the justice's docket, of 10th December, 1892, was conclusive against plaintiff's claim.

It is not worth while to inquire whether this entry was a judgment, and, if so, whether it imported verity. It was, at least, an agreement,-by parties, too, fully competent to make it. It is clear and concise in expression, with no possible ambiguity of meaning. They say, "This settles all matters at variance." What were the matters at variance? Moore claimed that he had overpaid his road taxes $14.50. The defendant denied this. Both parties met, to be heard, and have the judgment of the justice on their dispute. dispute. When before him, they discussed the matter, exhibited accounts, and made computations; then agreed. The justice reduced their agreement to writing, and read it aloud to them. The supervisors read it for themselves. Moore paid the costs he had agreed to pay, and the parties separated. Nearly three months afterwards, the township brings this suit for the road taxes of 1890, 1891, and 1892. We turn to the settlement to see if this claim was embraced in it. It says: "Set tled by a credit in full of all road tax assessed against the plaintiff; defendants giving plaintiff a credit in full for each and every year to this date, including the tax laid for 1892." Thus, in the most positive and most specific terms, the debt now sued for was included in the settlement, and if that settlement be enforced the debt is discharged. The supervisors say the present claim was not intended to be included; that this suit is for money tax, while the settlement embraced the work tax only. The defendant swears positively that the settlement was for just what it says; that all the taxes against him at that date were settled. In the absence of fraud or mistake, agreements will not be set aside. Especially is this rule to be invoked when parties have come together, and, by formal writing, compromised or settled

That the parties did not affix their signatures, is not material. That would have been evidence of their assent, but all of them admit it was read and formally assented to by them in presence of the justice. No fraud on the part of Moore is intimated. He did not draw the writing. That was done by the justice, prompted by the suggestions of the parties. No mistake in wording the agreement is suggested. It was dictated by, and assented to by, the parties. Why should it not be enforced? The supervisors say, now, that they did not intend what the agreement says. But what did Moore intend when he surrendered his claim for his alleged balance of $14.50, and paid the costs? He says his understanding was, it was a full settlement of all taxes assessed up to date of suit,-just what the agreement says. If an agreement written in plain language, having a meaning so obvious that a child could not mistake it, can be set aside because grown men, who are parties to it, months after, say they did not understand it, it would be useless to make one. In all this evidence there is nothing that warrants the opening up of the settlement of this dispute by another suit, and there was nothing for the jury to pass upon. The judgment is reversed.

PARKER v. NEW YORK & N. E. R. CO. (Supreme Court of Rhode Island. Jan. 19, 1895.)

FELLOW SERVANT DUTY TO OVERSEE EMPLOYES -ABSENCE OF SWITCHMAN-NOTICE TO COMPANY.

1. A yard conductor, assigned to take charge of a switch in the temporary absence of the switchman, is a fellow servant of a fireman on a locomotive.

2. Where a railroad company has provided a competent person to attend a switch, it is not, so far as its employés are concerned, required to see that he remains at his post.

3. The fact that a switchman does not remain continuously at the switch is not notice to the company that the switch is unattended.

its said duty in not providing a switchman at a certain switch situated at Providence, on the line of its road, at which point it was the duty of the defendant to provide a switchman, and at which point the defendant haď hitherto and has since provided a switchman; that on the day of the happening of said accident said switch was left open, and in a dangerous condition, by reason of said failure to provide a switchman therefor, whereby the plaintiff, while in the performance of his duty, and in the exercise of due care, was thrown from the engine on which he was employed, and seriously injured. At the trial of the case in the common pleas division the plaintiff recovered a verdict in the sum of $6,000, and the defendant now petitions for a new trial on the grounds of certain erroneous rulings of the presiding justice at said trial, and that the verdict was against the evidence and the weight thereof.

The proof shows that the plaintiff, at the time of receiving the injury complained of, was a fireman in the employ of the defend-ant corporation; that he was on the loco-motive of the 4:50 p. m. train from said Washington village to Providence; that the switch known as the "Hospital Switch," situated at the Springfield yards, in said Providence, was left open by the switchman or person whose duty it was to attend the same for the time being, and that, by reason of said switch being left open, the engine upon which the plaintiff was riding ran upon the siding, throwing the plaintiff out, and causing him to be seriously injured. The proof also shows that one Dwight Tourtellot, who was the regular switchman at said switch, was off duty during a part, and, according to some of the testimony, during all, of the day on which said accident occurred, he having been excused by the yard master, and that the latter appointed one Gilbert Bullard, the yard conductor, to look out for said switch during the absence of Tourtellot; that Bullard had occasion to use said switch, during the afternoon, in making up trains, and by reason of other duties for

ed.

Grant

Page & Owen, for plaintiff. John Henshaw and James M. Ripley, for defendant.

TILLINGHAST, J. This is an action of trespass on the case for negligence. The declaration, in brief, sets out that the plaintiff was in the employ of the defendant corporation, in the capacity of fireman on a locomotive running between Washington village and the city of Providence; that it was the duty of the defendant to keep and maintain its roadbed and switches in a safe and proper condition, so as not to endanger the life or limb of any of its employés, but that, on the day of the happening of the accident to v.30A.no.19-54

plaintiff was employed to pass that point.. In this state of the proof it is clear that the plaintiff was not entitled to recover. The cause of the injury complained of was theneglect of the said yard conductor, Bullard, to close the switch, or cause it to be closed, after using the same in the manner aforesaid, so that said 4:50 p. m. train might pass the same in safety. This he neglected to do, whereby the plaintiff was injured. But the negligence of Bullard was clearly the negligence of a fellow servant, and was therefore one of the risks assumed by the plaintiff when he entered the defendant's employ. Railway Co. v. Needham, 63 Fed. 107. The plaintiff does not allege in his declaration, nor does he attempt to prove, that Bullard was incompetent to discharge the duty de

volved upon him by the yard master, while, on the other hand, there is uncontradicted proof that he was competent. Nor does the plaintiff allege that, by reducing the force employed at said yard, the defendant had knowingly and unreasonably devolved upon said Bullard labors which were too numerous, various, and distracting for one man to perform (see Harvey v. Railroad Co., 88 N. Y. 481); but he simply alleges that the defendant was negligent in failing to have a switchman at said switch, as the rules and custom of the road required. We think, therefore, that the defendant discharged its duty to the plaintiff, so far as that duty is set out in the declaration, when it provided a competent person to attend to said switch; and, having discharged its duty in this regard, the plaintiff was not entitled to recover simply because the coservant failed to discharge his duty in the premises.

We do not see that the point urged by plaintiff's counsel, viz. that as no person remained at the switch during the day, in accordance with the custom to have some one there constantly, the jury may properly have inferred that the defendant knew that it was unattended, and hence was guilty of negligence, is of any importance, so long as some one was provided to look after the same, for it was clearly not necessarily incumbent on the defendant to have a switchman there continuously. Its duty was to provide a competent person to take care of said switch during the temporary absence of Tourtellot, and, having done this, it had the right to presume that the person so provided would discharge his duty. And the mere fact that he did not remain at said switch continuously during the absence of Tourtellot could not properly be construed by the jury as an implied notice to the company that said switch was unattended.

Some proof was introduced by the plaintiff tending to show that the said switch itself was out of order, in that the target attached thereto had not been painted in a long time, thereby rendering it difficult for the engineer to determine whether or not it was showing danger until he arrived at a point very near to the same; and that on the day of the accident, it being a damp, foggy day, he could not discover that said target was showing danger until it was too late to stop his train before striking the switch. But, as the declaration does not allege the existence of any such defect, this proof was not pertinent to any issue raised in the case.

As it is clear that under the declaration as framed, and the proof submitted, the plaintiff has no case on the merits, it becomes unnecessary to consider the questions of law raised by the defendant's exceptions to the rulings of the court. Petition for new trial granted, and case remitted to the common pleas division, with direction to enter judgment for the defendant, unless plaintiff obtains leave to amend his declaration.

CARD et ux. v. AHEARNE. (Supreme Court of Rhode Island. Jan. 5, 1895.)

GARNISHMENT-ASSIGNMENT OF WAGES-PAYMENT TO ASSIGNEE'S SUCCESSOR.

An order by an employé on his employer, to pay his wages as they became due to a firm, does not, as against a creditor of the employé who garnished the employer, warrant the latter in paying the wages to a successor of the firm to whom all its assets were assigned.

Motion for new trial from court of common pleas.

Action by George H. Card and wife against Thomas Ahearne, in which a writ of garnishment was served on the Rhode Island Granite Works. From an order refusing to charge the garnishee, plaintiffs petition for a new trial. Granted.

A. B. Crafts, for plaintiffs. Charles Perrin, for defendant.

MATTESON, C. J. This case is before us on the plaintiffs' petition for a new trial on the ground that the common pleas division erred in refusing to charge the garnishee. The material facts, as shown by the answer of the garnishee and the testimony submitted, are as follows: On June 5, 1891, the defendant, being at the time in the employment of the Rhode Island Granite Works, gave to it an order in the following form: "Westerly, R. I., June 5, 1891. R. I. Granite WorksGentlemen: For value received, please pay to Whaley & Carney my wages each month, as they become due, until further notice. Thomas Ahearne." The Rhode Island Granite Works on the same day accepted the order by writing across its face the following: "Westerly, R. I., June 5, 1891. Accepted. Payable 15th of each month for wages earned the previous month. R. I. Granite Works. B." The order was duly recorded in the town clerk's office in Westerly on June 8, 1891. The firm of Whaley & Carney was dis dissolved July 1, 1891. Its assets were assigned and turned over to W. J. Carney & Co.; Carney having purchased the interest of his partner, Whaley, and having admitted a new partner. At the time of the making of the order, the defendant was indebted to Whaley & Carney, who continued to furnish him with groceries on account until the dissolution, when he was indebted to them in the sum of $19.19. On July 15, 1891, W. J. Carney & Co., having received the wages of the defendant from Rhode Island Granite Works, credited on that date, on the account of Whaley & Carney with the defendant, the sum of $15. From July 1, 1891, the new firm, W. J. Carney & Co., continued to furnish goods to the defendant, and collected his wages from the Rhode Island Granite Works. On April 28, 1892, at 10:20 a. m., the time of the service of the writ on the Rhode Island Granite Works as garnishee, the defendant was indebted to W. J. Carney & Co. in the