located that it is dangerous, and that it is practicable to protect it with a guard. A master is not excused from complying with the statute by the mere fact that such machinery had not been manufactured with a guard, or that it had not been customary for owners and operators to use guards on that type of machine. The statute is intended for the protection of employés engaged in operating such machinery, as well as for the protection of the careless and ignorant who may accidentally come in contact with it.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 228-231.] 2. SAME GENCE.

EVIDENCE-CONTRIBUTORY NEGLI

The evidence sustains the finding of the jury that appellant was guilty of negligence in failing to construct and maintain a suitable guard for a lath bolter machine, which he was operating in his mill, and it does not conclusively appear from the evidence that respondent was guilty of contributory negligence, or that he assumed the risks of his work.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 954-977.]

(Syllabus by the Court.)

Appeal from District Court, Washington County; P. H. Stolberg, Judge.

Action by George Callopy against George H. Atwood and the Atwood Lumber Company. Verdict for plaintiff. From an order denying a new trial, defendants appeal. Affirmed.

Morton Barrows, for appellants. T. R. Kane, for respondent.

LEWIS, J. Appellant owned and operated a sawmill, and respondent was employed to work upon what is known as a "lath bolting machine," consisting of a raised platform, or table, on which was located a circular saw, about 22 inches in diameter, 9 inches of which extended over the table, wholly exposed and unguarded. The machine was used for the purpose of sawing boards and slabs into narrow strips, called "bolts," about 4 feet long, 11⁄2 inches wide, and of variable thickness. The machine was operated by two men-one, called the "pusher," who stood in front of it and pushed the material forward against the saw, which revolved at a very rapid rate of speed; the other, called the "puller," who stood at the rear of the machine, pushed the bolts to one side as the stock came through the saw, and if the remaining piece was large enough for another bolt he passed it back to the pusher. While respondent and the puller were so engaged, a piece of board, about 4 feet long, 2 inches thick, and 4 inches wide, in some way became caught on the back of the saw and was hurled forward and against respondent's arm with great force, causing severe injury.

Appellant was charged with negligence in failing to properly guard the saw. Respondent recovered a verdict, and appellant presents the following questions for our consideration: Conceding that a guard might have been attached to the saw which would have prevented pieces of board from being thrown back, as stated, and conceding that no such

guard had been provided, appellant claims that he is not liable for the reason that saws of such character had always been operated without guards, not only by respondent, but by operators generally; that the statute had no application to such a case, and, in any event, respondent and his assistant had complete control of the material they were handling and passing through the saw, and that it does not appear from the evidence where this particular stick came from; that it was a pure accident, which could not have been foreseen by appellant in the exercise of ordinary care. It is the settled rule of this state that the omission of a guard on dangerous machines, as provided by section 1813, Rev. Laws 1905, constitutes negligence on the part of the master, when it is shown that a guard was practicable, and that the unguarded condition was the proximate cause of the injury. It is not material that the saw is so placed that the operator would not be likely to come in direct contact with it while engaged in its operation.

The statute is broad and sweeping, and has application to all saws of a dangerous character. The fact that respondent and his coworker had control of the material which passed through the saw creates no exception to the rule and has no bearing, except upon the question of assumption of risk or contributory negligence on their part. The statute is intended as a protection, not only against the carelessness and ignorance of those who may accidentally come in contact with dangerous machinery while moving about in its vicinity, but it is also intended as a protection to the operatives themselves, who, by reason of inadvertence or some misfortune may be injured by it. That saws of this type had never been provided with guards by appellant and other millmen was no excuse for not complying with the statute. It applies to all cases, whether guards had been used or not, and there are only two questions to be taken into consideration in determining whether the statute has application in a particular case, viz.: Is the machinery dangerous and located in an exposed position? And is it practicable to guard it? Both are admitted in this case. True, a bolter lath saw differs from an edger saw in some particulars. The latter was the subject of consideration in the case of Johnson v. Atwood Lumber Co., 101 Minn. 325, 112 N. W. 262, but the distinction is immaterial. Edger saw machines are manufactured with a guard intended to protect the operator; whereas in this case it does not appear that bolting machines are equipped with guards. But, if they are dangerous instrumentalities, it is immaterial that they are not manufactured with guards.

It is not a conclusive defense that accidents of this kind had never before occurred in appellant's experience. It appears that suspended over the saw was an arrangement, consisting of a board that came from the

ceiling and another board, nailed lengthwise to it, on which was hung a piece of bolting leather, which was intended to prevent the sawdust, small knots, and splinters from flying in the face of the pusher. But such device was not a guard against pieces of wood caught and thrown, as in this instance, and does not excuse appellant from complying with the statute. Appellant cannot plead entire ignorance of the tendency of the saw to throw missiles in the direction of the pusher. He admitted that a board partition had been erected about four feet behind the pusher, and that its purpose was to prevent small knots, small pieces that fly off from the rear, hard pieces of lath stock, from flying around. Neither of the operators were able to tell where the stick which struck respondent came from; but it was of the same kind and material then being sawed, and the puller testified that, although he did not see where it came from, he caught a glimpse of it as it was caught on the saw and hurled in the direction of respondent. Respondent testified that he simply caught a glimpse of the stick as it came towards him. The teeth of the saw were long and pointed, and it required only the fraction of a second to catch and hurl a piece of board which came in contact with it. Our views of the case find support in the following decisions: Christianson v. Compo. Co., 83 Minn. 25, 85 N. W. 826, 85 Am. St. Rep. 440; Gray v. Commutator Co., 85 Minn. 463, 89 N. W. 322; Tvedt v. Wheeler, 70 Minn. 161, 72 N. W. 1062; Johnson v. Atwood Lumber Co., 101 Minn. 325, 112 N. W. 262; Seely, Administratrix, etc., v. Tenant & Hoyt (Minn.) 116 N. W. 648 (filed May 29, 1908).

The evidence fails to conclusively establish contributory negligence or assumption of risks.

Affirmed.

HALL v. PARSONS.

(Supreme Court of Minnesota. July 10, 1908.) 1. SET-OFF AND COUNTERCLAIM-BREACH OF CONTRACT.

A cause of action for damages for breach of contract, arising simultaneously and concurrently with the commencement of an action, may be interposed as a counterclaim therein. 2. SAME-WHEN MAINTAINABLE.

Plaintiff entered into a contract by the terms of which he agreed with defendant not to bring suit upon a promissory note held by him against defendant within a certain time. In violation of the contract he thereafter brought an action upon the note before the expiration of the time. Held, that the breach of contract and resulting damages, if any, might be interposed as a counterclaim in the action.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 43, Set-Off and Counterclaim, §§ 48-50.] 3. MORTGAGES-EXTENSION-CONSIDERATION.

The answer construed, and held to show a valid contract based upon a valuable consideration, and to otherwise state facts sufficient to constitute a cause of action against plaintiff. (Syllabus by the Court.)

Appeal from District Court, Hennepin County; David F. Simpson, Judge.

Action by Dana W. Hall against David W. Parsons. From an order overruling a demurrer to the complaint, plaintiff appeals. Affirmed.

Fred W. Reed and Fifield, Fletcher, Larimore & Fifield, for appellant. Parsons & Bowler, for respondent.

BROWN, J. This action was brought to recover upon a promissory note theretofore made and delivered to plaintiff by defendant for the sum of $3,000, which fell due in July, 1905. Defendant interposed as a counterclaim a claim for damages for the breach of an alleged contract, made and entered into by the parties, by which plaintiff for a valuable consideration agreed not to bring suit on the note before February 10, 1908. If the contract was made, it was violated by plaintiff; for the action was brought in September, 1907. Plaintiff interposed a general demurrer to the counterclaim, and appealed from an order overruling it.

The answer alleges, in substance, among other things, that on the 15th day of August, 1907, plaintiff was the holder of a mortgage upon certain real property situated in the city of Minneapolis, securing the payment of $2,500; that the property was incumbered by taxes and tax liens to such an extent that the mortgage was of little value as security; that on and prior to the date mentioned defendant had entered into certain provisional contracts with the owner of the property, one Shepley, who was also plaintiff's mortgagor, under which defendant was to acquire title to the property in consideration of the performance by him of certain things affecting the same, viz., to clear the title of all incumbrances, liens, and taxes, to erect a building thereon at his own cost, and to protect the interest of Shepley from a forfeited tax sale to be held in November, 1907. It also alleges that, in view of the contract and agreement with Shepley, defendant had entered into another provisional contract for the erection of the building and to lease the same when completed to the Northern Fire Apparatus Company. It further alleges that defendant laid before plaintiff the facts stated, and informed him of the contracts referred to, under which defendant had agreed to clear the title to the land and construct the building thereon, and also informed him that it would be necessary, to enable defendant to carry out his contracts, to borrow large sums of money to pay and discharge maturing obligations incurred in their performance. It further appears that the performance of his contract with Shepley and clearing the title to the property would have enhanced the value of plaintiff's security under his mortgage. alleges that after defendant "advised plaintiff of the foregoing facts," and in consideration of defendant's undertaking such contracts,

It

It

plaintiff promised and agreed with defendant (1) not to bring suit or take any other action to enforce the payment of defendant's note, the one in suit, before February 10, 1908, and (2) to sell and transfer to defendant the Shepley note and mortgage and to surrender defendant's fully paid in consideration of $6,000, $3,000 to be paid as soon as the title to the property was perfected, and $3.000 on or before February 10, 1908, at which time defendant's note was to be surrendered. then alleges that in reliance on this agreement defendant proceeded with the performance of his contract with Shepley, and expended large sums of money in the construction of a building, making improvements, and in perfecting the title and protecting the interests of Shepley in and to the property, of all of which, the answer alleges, plaintiff was fully advised. It further alleges that plaintiff subsequently took various steps with the purpose of embarrassing and hindering defendant, and that finally, on the 18th day of September, 1907, he expressly violated the terms of his contract with defendant by bringing this action; the agreement being that no action should be brought before February 10, 1908, by reason of which defendant was greatly embarrassed in the performance of his contract with Shepley and the Northern Apparatus Company, and was unable to complete the same to his damage in the sum of $25.000. Damages are alleged in general terms.

Two principal points are made in support of the contention that the allegations of the answer are insufficient to constitute a valid counterclaim: (1) That the contract relied upon is void for want of consideration; and (2) that the cause of action made the basis of the counterclaim, viz., the breach of the contract by commencing this action, did not exist at the time of its commencement, and is therefore not a proper counterclaim under the statute. Neither contention is well founded.

1. The answer is entitled to a fair and liberal construction, and to be aided and supported by every reasonable inference and intendment, and though in some respects indefinite, as against the demurrer, sufficiently states a cause of action. That it shows a valuable consideration for the contract is, within the authorities, clear. Fairly construed. it alleges that defendant was about to enter upon the performance of certain contracts for the purpose of perfecting the title to and improving the property upon which plaintiff held a mortgage for $2.500, the performance of which would necessarily enhance the value of plaintiff's security. It alleges that defendant could not proceed with the improvements if embarrassed by suit upon his note to plaintiff. It also appears that plaintiff agreed to assign and transfer his mortgage upon the property to defendant, defendant to pay therefor, as already stated, $3,000 117 N.W.-16

at one time and $3,000 at a later date, in consideration of all of which plaintiff promised and agreed not to bring suit upon this note until the 10th of February, 1908. That there was a benefit moving to each party by the terms of the contract cannot be doubted. Plaintiff's security was to be improved, he was to sell his mortgage against Shepley to defendant, and defendant was to pay for the same. Here were mutual promises and obligations, perfectly valid and enforceable, and constituting a valuable consideration within the meaning of the law. See note to Homer v. Sidway, 12 L. R. A. 463.

2. The second contention presents a more serious question, but does not, we think, require extended discussion. Our statutes (section 4131, Rev. Laws 1905) provide that a counterclaim must be an existing one in favor of the defendant and against the plaintiff, and (1) arise out of the contract or transaction made the foundation of the complaint, or (2) if the cause of action set up in the complaint arises in contract, another cause of action in defendant's favor arising also in contract and "existing when the action was begun." There is no question but that defendant's alleged counterclaim arises in contract. The only doubt is whether it existed. within the contemplation of the statute, when the action was commenced. The bringing of the action constituted the breach of contract made the basis of the counterclaim, and no right of action arose in defendant's favor until that time; but it arose concurrently with plaintiff's act in bringing the suit, and may fairly be said to come within the meaning of the statute and to have existed "when the action was begun." The object of the statute in permitting the interposition of counterclaims is to prevent a multiplicity of suits and to enable parties to litigate their controversies, so far as possible or consistent with the orderly administration of justice, in a single action, and by holding that a cause of action for breach of contract, arising simultaneously and concurrently with the bringing of an action, may be interposed as a counterclaim therein, we but give effect to the policy of the law and without intrenching upon any substantial right of plaintiff. Of course, the counterclaim must exist as an independent cause of action when plaintiff's action is commenced, as contended; but, unless we are to indulge in technical measurements of time, the counterclaim in the case at bar existed as an independent cause of action at that time. Defendant could have brought an action for the breach of the contract not to sue the moment plaintiff placed his papers in the hands of the sheriff for service, for the statute declares that an action is deemed to have then commenced. So that prior to the service of the summons defendant had an existing right of action against plaintiff.

The case is wholly unlike those cited by appellant, wherein it is held that damages

for the wrongful levy of an attachment cannot be interposed as a counterclaim in the action in which the writ issued; for there clearly the right to damages for the wrongful levy does not arise until the levy in fact is made, which usually occurs a considerable time after the action is commenced. Here the counterclaim arose concurrently with the bringing of the action, and for all practical purposes, dismissing refinements and technicalities, existed when the action was commenced. Appellant also cites authorities to the proposition that, where the holder of a promissory note makes a valid agreement after its maturity not to sue thereon for a specified time, such an agreement cannot be pleaded in bar of an action brought within the time and in violation of the agreement. Berry v. Bates, 2 Blackf. (Ind.) 118; Williams v. Scott, 83 Ind. 405; Chandler v. Herrick, 19 John. (N. Y.) 129. In that situation the authorities cited hold that the remedy is not a plea in bar to the maintenance of the action, but an action for damages for the breach of the contract. Such is not, however, the law in this state. An agreement to extend the time of payment was held a valid defense in Lyman v. Rasmusson, 27 Minn. 384, 7 N. W. 687. But the rule invoked has no application to the case at bar. Here the counterclaim is not pleaded in bar of plaintiff's right to sue; but, on the contrary, in line with the authorities referred to, defendant interposes a claim for damages by way of counterclaim.

We need not enter into a consideration of the question concerning the damages defendant may recover. The recovery, under the general rule in breach of contract cases, extends to all such damages as resulted approximately and necessarily from the breach, or, as otherwise expressed, such as may reasonably be supposed to have been contemplated by the parties when the contract was made. The allegations of the answer, as against the demurrer, bring the counterclaim within the rule. It is very probable that the amount claimed, $25,000, will be materially reduced on the trial; but in the absence of the evidence we can do no more than say that the allegations of the answer show a right to recover a substantial amount. Whether the evidence will sustain the allegations thereof is another question.

This covers all questions requiring special mention, and our conclusion is in harmony with that reached by the learned trial judge, and his order in the premises is affirmed.

ENGLER V. LA CROSSE DREDGING CO. (Supreme Court of Minnesota. July 10, 1908.) MASTER AND SERVANT-INJURY TO SERVANTNEGLIGENCE-CONTRIBUTORY NEGLIGENCE.

The evidence is sufficient to sustain the jury in finding that certain brake attachments upon appellant's ditching machine were defective

and unsuitable for the purpose of holding the buckets in place at the ends of the supporting arms, that appellant was negligent in failing to inspect and repair the same and in maintaining them in use, and that respondent did not assume the risk of his occupation, and was not guilty of contributory negligence in placing himself under the suspended buckets for the purpose of repairing the traction part of the machine. No error in the charge and rulings.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 954-977.] (Syllabus by the Court.)

Appeal from District Court, Winona County; Snow, Judge.

Action by John Engler against the La Crosse Dredging Company. Verdict for plaintiff. From an order denying a new trial, defendant appeals. Affirmed.

C. H. Rossman, for appellant. Webber & Lees, for respondent.

LEWIS, J. Appellant was operating a ditching machine, known as a "Jacobs Steel Excavator," and respondent, while employed in making repairs on it, was seriously injured by the falling of the buckets. A detailed description of the machine may be found in the record, but for the purposes of this appeal we shall not attempt any more than a general description. The machine rested upon trucks which ran on rails, and at the front of it were two steel arms extending out at right angles about 45°, upon which the buckets were carried. The same engine which operated the buckets also operated the traction part, and moved the machine back and forth on the track, but when propelling the machine the engine was wholly disconnected from the drums which operated the buckets. The buckets were dumped by an automatic arrangement at the extremity of each arm, and were held in place, when so desired, by a friction brake on the drums. This brake was an iron band 3 inches wide, lined with wood, and was applied to the circumference of the drum and operated by a hand lever. A small wire cable, about 11⁄2 inches in diameter and about 7 feet long, connected the lower extremity of the lever with the brake shoe, passing around a pulley wheel in so doing. When it became necessary to set the brake, the lever was pulled back by the operator and held in place by means of an iron dog bolted to the lever, which hooked over a rod or pipe about 14 inches in diameter. There was no arrangement for locking the dog in place, and it was necessary to press it down with the hand or foot in order to hook it over the rod, and if anything should occur to slip the hook end of the dog from the rod, the brake would be automatically released and the buckets would drop. Appellant was charged with negligence for failing to inspect the machine and in maintaining this brake appliance; it being claimed that the same was defective and unsafe for the purposes required.

Respondent commenced work for appellant

on Tuesday, June 5, 1906, and the accident occurred the following Friday, the 8th. He testified that for two days he worked at repairing a small engine, which had no connection with the machine which operated the buckets; that on Thursday, the third day, he, with others, worked with the traction part of the machine until about 2 o'clock p. m., when the machine stuck, on account of a defective rail, and they worked all the rest of the day getting the machine off the defective rail; that on Friday morning, after getting the machinery in shape, they moved the machine back to the point where the rail was defective, and it stuck again, and in the attempt to back the machine the sprocket chain slipped out of the sprocket and became taut; that respondent was told to fix it, and he picked up his hammer and chisel and went down and sat on the edge of the ditch in front of the machine where the sprocket was located, which happened to be in line with the path of the buckets, which at that time were suspended at the dumping point on one of the arms; that he struck the chain one or two blows with his hammer, but failed to get it into position; that the engineer, who was watching him, said he would go in the engine room, get a monkey wrench, and give the chain a little slack. The evidence tends to show that before he reached the engine room, and while respondent was yet in the same position at the sprocket wheel, the buckets suddenly dropped, crushing him to the ground. Upon an examination, which took place immediately after the accident, it was discovered that the cable which connected the lever with the brake and was concealed underneath the floor of the deck, had become worn to such an extent that two or three of the strands were cut in two. It was conclusively shown that the buckets were held in place at the top of the steel arm by means of the brake apparatus described; that the engine was originally manufactured with a brake attachment of an entirely different pattern, which was declared by experts to be the safest appliance made for the purpose. The iron dog and cable already described was a makeshift arrangement, made and put on the machine by the persons who bought it from the manufacturers and who sold it secondhand to appellant. There was a dispute between the experts as to whether it was a safe appliance for such purpose, and as to whether the other brake attachment originally manufactured to be sold with it, could have been attached to a machine and engine of that character.

1. Appellant had owned the machine only a short time, and had not inspected it with a view to discovering whether the brake attachment was suitable and safe. The court submitted to the jury the question whether under all the circumstances appellant had violated its duty in furnishing a suitable and safe appliance. Appellant cannot be excused by the mere fact that it bought the ma

chine secondhand, supposing it to be of the standard type, complete in all its parts, and suitable for the purpose for which it was sold. Conceding that appellant had no knowledge of the fact that the original brake attachment had been omitted, and that another had been made and put on, that would not necessarily be sufficient excuse for failure to inspect the machine before putting its employés at work on it. It is not necessarily fatal to respondent's case that it does not definitely appear for what particular reason the buckets fell. They were held in place by the brake only, did not fall of their own accord, and could not have fallen, had the brake not become released. The machine was not in operation at the time, and there was no evidence that the engine or brake were being manipulated. If the brake gave way by reason of the straightening of the worn-out cable, then the evidence was sufficient to sustain negligence on the part of appellant. On the other hand, if the dog attachment slipped off the hook, and the brake was released as a result, then the evidence was sufficient to prove appellant was negligent in using such an appliance. In this connection attention is called to the case of King v. C., M & St. P. Ry. Co. (Minn.) 116 N. W. 918 (filed June 12, 1908), where the facts are quite similar.

2. We do not think it conclusively appears that respondent was guilty of contributory negligence simply because he might have taken some other method of releasing the sprocket chain, and thus avoided placing himself in a position where the buckets would strike him if they fell. There was some evidence tending to show that he might have gone down under the machine, that he might have opened the chain by unscrewing a nut, or that the engineer might have been requir ed to let the buckets down before commencing the work. But whether respondent should, under all of the circumstances, have pursued one or the other of these courses, was for the consideration of the jury, in determining whether he did what an ordinarily prudent man would have done under the same circumstances. Respondent testified that he had no knowledge of the character of the brake attachment, and that his attention was not called to its nature; that he had not inspected it, and had no reason to believe the brake was unsafe. If this was true, it was not clearly an act of negligence on his part in going under the buckets for the temporary purpose of releasing the sprocket chain.

3. Whether respondent assumed the risk of his employment depends upon what the contract was. If, as contended by appellant, he was employed as an expert for the express purpose of inspecting, putting in repair, and operating the machine, then it would follow that he assumed the risk in taking his position underneath the buckets without having first ascertained to his own satis