of any judicial action being instituted the company would cede in sale to Mr. Montelibano the credit which was the object of said litigation." The wife joined in the contract and the ratification in order to pledge certain real estate owned by her as security for the performance of the contract by her husband.

The complaint averred that appellants had taken all steps possible to carry into effect the collection of the credits, but had only been able to collect amounts aggregating P.29,491.04; that the remaining credits set forth in the first clause of the contract did not exist in the amount therein stated, and were not legitimate in their nature, and for this reason, in spite of plaintiff's efforts to collect them it had been impossible to do so. Plaintiffs claimed that defendant company was responsible to the plaintiffs for damages in the sum of P.129,734.29, and prayed that they might recover this amount, and that the contract of October 25, 1905, and the mortgages given to secure it might be cancelled.

The appellee filed an answer and a cross-complaint setting up the contract of October 25, 1905, and the ratification of November 10, and also an agreement afterwards made between the parties under date December 7, 1908, supplemental to and modifying in certain respects the previous contract; setting up that defendant had complied with all the terms and conditions of these 1 contracts on its part to be performed; that Montelibano had paid defendant only P.20,736.95 on account of the instalments agreed to be paid "under the provisions of said contracts whereby the said plaintiff had the option of purchasing and acquiring the ownership of said credits for the sum of P.130,000"; that after the expiration of the term of the option, when he was by the terms and conditions of the contracts obligated to account for all sums of principal and interest collected on account of said credits and to return to defendant all credits remaining

uncollected, defendant demanded of said plaintiff an accounting of his transaction in connection with the credits as agent of the defendant and payment of all sums of principal and interest collected, but he refused to comply with the demand to pay over any sum collected by him, to render accounts, or in any manner to comply with his obligations under the contracts. Defendant prayed that the action of plaintiffs be dismissed; that the plaintiff Alejandro Montelibano be required to render an accounting of the sums collected by him, of the credits remaining uncollected, and of all his transactions under the contracts, and that judgment be rendered in favor of defendant and against the plaintiff Alejandro for the sum found to be due; that a receiver be appointed to care for the uncollected credits and the mortgaged property; and for other relief.

Before trial plaintiffs asked for a dismissal of the action. Their motion to this effect was denied, and the case came on for hearing upon defendant's prayer for affirmative relief and for an accounting and damages. The trial court treated the contract as turning over the credits to Montelibano for collection for defendant's account, subject to an option to purchase the entire amount of credits for the sum of P.130,000, payable in instalments strictly as prescribed by the contract; found that he had not only failed to pay the stipulated instalments in order to avail himself of the option, but had not turned over or accounted for the amount actually collected by him; that he had collected P.61,715.98, and paid over only P.20,736.95, leaving a balance collected by him and undelivered to the defendant of P.40,979.03, in addition to which certain claims against Emilio Escay and Quirino Gamboa had been prosecuted to judgment and execution and the property of the debtors acquired by Montelibano through the execution sales, and that these properties were held by Montelibano in trust for the

company. "The conclusions are that the plaintiff having failed to perform the contract on his part the defendant is entitled to a return of his [its] property in so far as it can be returned and to judgment for the value of the balance which can not be returned, which value must be determined as the proceeds which the plaintiff received from such claims, together with legal interest upon the amount of cash received by the plaintiff upon such claims from the time of the commencement of this action, which was by filing the complaint herein on the 4th day of March, 1911."

Judgment was therefore entered in favor of the defendant and against the plaintiff Montelibano for the sum of P.40,979.03, less P.22,086.43 (the amount of the Escay debt) if defendant should seek to recover the Escay property from plaintiff, with interest from March 4, 1911, the date of the commencement of the action; also for the possession and delivery of certain enumerated credits aggregating P.103,645.70; also for the Escay property, and in case delivery thereof could not be had, the sum of P.40,000, the value thereof, provided defendant did not elect to take the full judgment for money collected as above stated, and if such election should be made then this clause in relation to the return of the property to be annulled; also for the property known as the Gamboa property, or in case delivery thereof could not be had, the sum of P.6,178.10; and for the costs.

The Supreme Court of the Philippine Islands affirmed this judgment, holding that the title to the credits never passed to the plaintiff Alejandro Montelibano; that they were delivered into his possession for collection, with an agreement that he could become the owner thereof by paying P.130,000 in the manner specified; that none of these payments having been made as agreed, the credits remained the property of the defendant company, and a refusal to deliver them was properly the basis of a demand for affirmative relief.

The case comes to this court under § 10 of the act of July 1, 1902, c. 1369, 32 Stat. 691, 695, on account of the amount in controversy. The action being of an equitable nature, the proper method of review is by appeal, and the writ of error will be dismissed. De la Rama v. De la Rama, 201 U. S. 303, 309; Gsell v. Insular Customs Collector, 239 U. S. 93; De la Rama v. De la Rama, ante, pp. 154, 160.

The principal contention of appellants, and the one upon which all others turn, is that the Court of First Instance and the Supreme Court of the Islands erred in holding that, under the terms of the contracts of October 25, 1905, and December 7, 1908, the credits involved were delivered to the appellant Alejandro Montelibano not as purchaser but merely as agent for purposes of collection, with an option to purchase that was not carried out, and that therefore the Tobacco Company was entitled to the proceeds so far as collected and a return of the uncollected credits or their value. In support of this there is an elaborate argument respecting the construction of the instruments in question. It concedes that many of their clauses are consistent with the view that Montelibano had but an option to purchase the credits, and that if this option were not accepted he was to account to the company for all that he collected; but it is argued that other clauses and the general intent of the agreements are to the contrary. It would be tedious to recite the argument in detail, and we content ourselves with saying that it has not convinced us that the courts below clearly erred; and since they concurred in their findings both upon questions of fact and upon questions of law, it is our duty to affirm their judgment. Ker v. Couden, 223 U. S. 268, 279; Villanueva v. Villanueva, 239 U. S. 293, 299.

Writ of error dismissed. Decree affirmed on the appeal,

Syllabus.

241 U. S.

CHESAPEAKE & OHIO RAILWAY COMPANY v.

PROFFITT.

ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT.

No. 273. Argued March 10, 1916.-Decided June 5, 1916.

The danger to a brakeman at work in switching at one end of a "manifest" train, arising from switching operations conducted by another crew at the other end, is not among the ordinary risks of a brakeman's employment; and, in the absence of notice or knowledge, such brakeman cannot be held to have assumed it.

To subject an employee without warning to unusual danger, not normally incident to the employment, is itself an act of negligence. While an employee assumes risks and dangers ordinarily incident to the employment, so far as they are not attributable to the negligence of the employer or those for whom the latter is responsible, the employee has a right to assume that the employer has exercised proper care to provide a safe place and method of, work.

An employee is not to be regarded as having assumed a risk attributable to the employer's negligence until he becomes aware of it, unless it is so plainly observable that he must be presumed to have knowledge of it.

An employee is not obliged to exercise care to discover dangers resulting from the employer's negligence and which are not ordinarily incident to the employment.

Even if an employee knows and assumes the risk of an inherently dangerous method of work, he does not assume the increased risk attributable, not to such method, but to negligence in pursuing it. In the absence of knowledge of a custom of the employer in making up trains, a brakeman is not bound by such a custom, unless it is one that a reasonably careful employer would adopt.

A request to charge that the jury find for defendant if the usual method of doing work was pursued irrespective of the question of negligence of other employees was, in this case, properly modified by the court to the effect that the method adopted must be one that reasonably prudent men would adopt and that the injured employee only assumed the risks reasonably and usually ineident to such method. 218 Fed. Rep. 23, affirmed.