tractor, bids could have been received for a less sum, he ought to be heard in his complaint of the unlawfulness of the award of the contract; for the city, not only in the light of a reasonable interpretation of the ordinance, but upon the principle of fair and honest dealing with those who must pay the cost of street improvements, ought not to be permitted, after years of delay, to award a contract on a bid in excess of one that might be submitted at the time the improvements are made. Such, however, is not the situation as presented here. From all that can be gathered from appellant's plea, the effect of the city's acceptance of the bid in 1897, so far as he is concerned, is the same as if it had been accepted in 1892 and the work delayed until 1897. In November of that year it was completed. The property of the appellant was benefited by it, and he does not aver, and it is therefore safe to assume that he cannot, that he has been in any way injured by the delay in awarding the contract, or that he is now called upon to pay more than he would have been required to pay if proposals had been advertised for in 1897 and the contract awarded on bids then submitted. For the reason that it does not appear from the special plea that the defendant was in any way prejudiced by the delay of which he complains, the demurrer to it was properly sustained.

Judgment affirmed.

(211 Pa. 211)

LAND TITLE & TRUST CO. v. NORTHWESTERN NAT. BANK.

BROWN, J. This judgment cannot be disturbed unless we overrule Land Title & Trust Co. v. Northwestern Nat. Bank, 196 Pa. 230, 46 Atl. 420, 50 L. R. A. 75, 79 Am. St. Rep. 717. When the opinion in that case was delivered by our Brother Fell it expressed the view of the majority of the court, as ther constituted, after a most careful consideration of the question involved; and it is approved by a majority of the court as now composed, who have also duly considered the question on what is really a reargument of it on this appeal. We do not feel called upon to say more of the opinion of Justice Fell, which, in a manner satisfactory to us, clearly expresses our views. In the note to the report of the case in 50 L. R. A. 75, there will be found numerous cases sustaining and vindicating it; the justified comment of the annotator being, "It is apparent from the foregoing cases that the drawer of a check, draft, or bill of exchange, who delivers it to an impostor, supposing him to be the person whose name he has assumed, must, as against the drawee or a bona fide holder, bear the loss, where the impostor obtains payment of or negotiates the same."

The only fact not developed on the first trial which was proved on the second was that the check was taken to the banking department of the institution by the person to whom it had been delivered, and payment demanded. The paying teller refused to pay it unless the person presenting it was identified, whereupon the latter said he would deposit it in his own bank. This was the person to whom the settlement clerk of the appellant had handed the check, intending to

1905.)

CHECK-LIABILITIES OF DRAWER-DELIVERY TO IMPOSTOR.

1. Where the drawer of a check delivers it to a person supposing him to be the one whose name he has assumed, the drawer must bear the loss, where such person negotiates the same, as against the drawee or a bona fide holder thereof.

2. Where a check was drawn by the trust department of a trust company on its own banking department, and was delivered to an impostor, supposing him to be the person whose name he had assumed, and payment was refused by the banking department immediately after the check was issued, because the person presenting it was not identified, it did not affect the liability of the drawer for a loss as against the drawee or a bona fide holder of the check. Dean and Potter, JJ., dissenting.

Appeal from Court of Common Pleas, Philadelphia County.

Action by the Land Title & Trust Company against the Northwestern National Bank. Judgment for defendant, and plaintiff appeals. Affirmed.

John G. Johnson, for appellant. Samuel Dickson, Ruby R. Vale, Alexander & Magill, and Alfred Moore, for appellee.

which had no knowledge of the teller's refusal to pay unless the holder of the check was identified, is not to be affected by such refusal, any more than if the check had been presented at another bank, and payment had been refused for the same reason, for the banking department of the trust company must be regarded as separate and distinct from that which issued the check. It was what the appellant did at the time it handed the check to the impersonator of Bissey that stands in the way of its recovery from the appellee, which paid the check to the indorsee of the person to whom the appellant had issued it as its payee. It is not seriously argued that the refusal of the paying teller to pay without identification materially changes the situation.

The judgment is affirmed.

DEAN and POTTER, JJ. (dissenting). We dissent from the judgment of the majority of the court in this case on the grounds set out in the dissenting opinion filed when the case was first before us.

1. Neglect of the person to whom is delegated by the master the duty of providing a reasonably safe place for an employé to work is negligence of the master.

[Ed. Note. For cases in point, see vol. 34, Cent. Dig. Master and Servant, § 175.]

2. Where the evidence shows that plaintiff was at work on a dangerous pile of stones, and protested to defendant's superintendent because of the danger, and refused to work, and the superintendent reprimanded him for such refusal and ordered him to go on, the question of contributory negligence of plaintiff was for the jury.

[Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 1093, 1097, 1129.]

Appeal from Court of Common Pleas, Delaware County.

Action by Nichola Schiglizzo against William A. Dunn and William R. Richards. From an order refusing to take off a nonsuit, plaintiff appeals. Reversed.

Argued before MITCHELL, C. J., and DEAN, BROWN, MESTREZAT, and POTTER, JJ.

O. B. Dickinson and J. H. Hinkson, for appellant. W. Roger Fronefield and Andrew C. Wylie, for appellees.

MESTREZAT, J. The learned trial judge in granting the nonsuit correctly said that "the difficulty in this case is not in ascertaining the rules of law, because they are well established, but it is the application of the rules." We will repeat, however, as applicable to the facts of this case, what is said in the very recent case of Lillie v. Am. Car & Foundry Co., 209 Pa. 161, 58 Atl. 272 -that "the duty to provide a safe place to work, and to maintain it in a reasonably safe condition by inspection and repair, is a direct, personal, and absolute obligation, from which nothing but performance can relieve an employer; and the person to whom it is delegated becomes a vice principal, whose neglect is the neglect of the employer."

The defendants' negligence should have been submitted to the jury. A side track was used in delivering stone and other material for the construction of the wall. The stone was unloaded and piled in the narrow space between the main track of the railroad and the side track. A car standing on the side track was so close to the stone pile that a man could not pass between them. The wall was near the side track, and just beyond it was the derrick used in moving the stone from the car after it had been placed on the side track. At the time the plaintiff was injured, the stone pile was from 40 to 60 feet long, 8 to 10 feet wide, and about 13 feet high. The empty car

was then standing on the side track, and was near the stone pile. These were the conditions with which the defendants bad surrounded the place at which they expected the plaintiff to perform the services for which he was employed. The evidence shows that the height of the stone pile, as well as its proximity to the car, made the place unsafe for the plaintiff to perform his duties. If the pile fell when he was on it, his only means of escape, according to the testimony, was across the siding. The defendants are presumed to have known these facts, and hence it was their duty, if they permitted these conditions to exist, to keep the side track clear of empty cars, or of anything else that might endanger the plaintiff while engaged at his work on the stone pile. If, in carrying out their contract to construct the wall of the elevated railway, the defendants erected and used any structure, or located the side track or so used it, or directed the stone to be piled so near it, as to endanger the safety of the employés while in the discharge of their duties, it was the act of the defendants, and they are responsible to an employé without fault himself, for any injury he may sus tain.

But aside from these considerations, Watson had full knowledge of the unsafe condition of the stone pile when he directed the plaintiff to go on it and select stones for the masons. It is true that the plaintiff did not tell him the pile was shaky, and this seems to have been the controlling reason of the court for holding that Watson was ig norant of its condition. The plaintiff's tes timony, which, for the purposes of this case, must be taken to be true, shows what occurred between him and Watson immediately before the pile of stone fell. The plaintiff testified: "I saw the pile of stone was not very safe. Mr. Watson came and says, 'Why ain't you fellows working there? The stonemason talked to Mr. Watson, and he says, 'Why, we ain't got no stone.' So Mr. Watson came to me and says, 'What are you doing, Nick? Kind of real sharp, ‘Why don't you get stone for the stonemasons, Nick? I says, 'Mr. Watson, that pile of stone looks to me not very safe.' He says, "The pile of stones is all right, Nick; go get another stone.' I says, 'If you want me to go on that pile of stones, I want that car out of my way.' He says, 'Go on, Nick; go and get another stone; never mind the car. The engine will come and take that car out of your way.' I went on the stones. Mr. Watson gave me the order to go on the pile, and walked away." Two of the masons employed on the wall at the time of the accident, and called as witnesses, corroborated the plaintiff as to what occurred at the interview between him and Watson, and testified that the height of the stone pile made it unsafe, and that the plaintiff wanted to move the car with a bar, and that Watson

told him to let it alone; "that the shifter would move it directly." They further testified that, if the pile became dangerous, the only thing the plaintiff could do would be to jump toward the siding. Watson, therefore, was fully advised as to the dangerous condition of the stone pile, and observation should have disclosed to him the danger of permitting the car to stand on the track.

Nor do we agree with the learned trial judge that the facts of the case are such as to warrant him in holding the plaintiff guilty of contributory negligence as a matter of law. The learned judge's reasons for declaring the plaintiff guilty of negligence are stated by him as follows: "He [plaintiff] had knowledge, therefore, that the car was in his way in case he had to make his escape. He knew also that the pile was shaky. Yet, with that knowledge, which was not conveyed to Mr. Watson at all, with a pile of stone sixty or sixty-five feet long, as he testified, and eight or ten feet wide, he selected the most dangerous part to go and look for the stone, without any orders to do so by Mr. Watson. He went in on that long pile just at the point where the car was standing, and with knowledge that the pile was shaky." The plaintiff's duties required him to go on and over the stone pile until he found a stone of the right dimensions for use of the mason who asked for and was to lay it. Before finding the proper stone, he might be compelled to walk over the entire pile. Nothing short of doing so would excuse him for not getting a stone for the masons engaged in the construction of the wall. As one of the witnesses testi

fied, the plaintiff had to go up on the pile, or on the slant of it, wherever he could get a stone of the dimensions wanted. He therefore would not have been justified in confining his labors to any part of the pile in order that he might escape the dangers possibly attendant upon selecting a stone in another part of it. Hence at the time he was injured he was where the performance of his duties required him to be. The orders of Watson did not command him to go to the safe part of the pile and select a stone, as the learned judge seems to think. On the contrary, they directed him to go to any part of the pile, including that in front of and near the car. Watson said: "Go on, Nick; go on and get another stone; never mind the car. The engine will come and take that car out of your way." We do not think it can be held, as a matter of law, that the danger to the plaintiff was so obvious and imminent that he should have refused to obey the instructions of Mr. Watson, and declined to perform the service. Watson assured the plaintiff the stone pile was all right and "that the shifter would move it [car] directly." From this language he had the right to infer that Watson would act promptly and have the car removed, and relieve him from the danger of its being

on the side track. The plaintiff had been engaged on the stone pile for some time prior to the accident, and, having so far escaped injury, he doubtless believed that by the exercise of extraordinary precaution he might be safe until the car was removed. It was therefore for the jury to determine whether, under the facts disclosed by the evidence, the danger was so evident and imminent that he should have refused to obey the orders of his employer and have declined to continue his work, or whether he was justified in relying upon the judgment of his employer as to the safety of the stone pile and the promise to remove the

(Supreme Court of Pennsylvania. March 20, 1905.)

INJURY TO EMPLOYÉ-NEGLIGENCE-EVIDENCE. In an action by an employé, struck by a falling brick in a building in the course of erection, where there was no evidence as to how the brick came to fall, nor where it started, a nonsuit was properly entered.

[Ed. Note. For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 1000-1002.] Appeal from Court of Common Pleas. Philadelphia County.

Action by William Laven against Samue, E. Moore. From an order refusing to take off a nonsuit, plaintiff appeals. Affirmed.

It appeared that on October 23, 1903, plaintiff, a plumber's assistant, was injured by a brick falling upon him while he was at work in an eight-story building. Plaintiff alleged that the brick which hit him was precipitated from the fifth floor by two of defendant's employés who were working there at the time.

Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, and ELKIN, JJ.

Frederick H. Warner and Arthur B. Houseman, for appellant. M. Hampton Todd and Charles F. Van Horn, for appellee.

ELKIN, J. There is no rule of law nor any decision of this court that would sustain a jury in finding by imaginary inference that a brick which struck a plumber's employé while working on the second story of a building in course of construction was negligently thrown down or knocked off or tumbled over or caused to fall by two employés of a different contractor, engaged in building scaffolding for bricklayers on the fifth floor; no testimony having been offered to show that there were any bricks at or near the place where the scaffold builders were working. There is no doubt that if defendant or his employés caused the brick to fall which struck the plaintiff, inflicting the in

juries complained of, an action in trespass would lie to recover damages. In order, however, to sustain this action, the plaintiff must affirmatively show that the employés of defendant caused the brick to fall. He can do this by direct and positive testimony, or by showing that defendant's employés were in position to have caused the accident, and, by the exclusion of all other causes, make out a prima facie case for the jury. The difficulty with this case is that plaintiff has not met either requirement. No direct evidence was produced to show how the brick came to fall, nor from whence it started. Neither was there sufficient testimony from which a jury might draw an inference that defendant's employés were the only persons in position to have caused the accident. The testimony did not exclude all other causes. It did not show that there were any bricks at or near the place where scaffold builders were working. It did not show that there were no bricks on other floors or places from which this particular brick might have fallen. The testimony does not show that any one saw the brick near the scaffold builders at any time, nor did any one see the brick start from that point. It is probable that the brick may have fallen from some other floor, and the jury cannot be left to guess where the brick came from, and who caused it to fall. These facts clearly distinguish this case from Booth v. Dorsey, 208 Pa. 276, 57 Atl. 562, relied on by appellant. The plaintiff failed to show by direct testimony, or by facts from which the inference might be drawn, any negli gent act of the defendant's employés, and therefore cannot recover in this action. The nonsuit was properly granted. Judgment affirmed.

(211 Pa. 239)

THIRSK v. EVANS et al. (Supreme Court of Pennsylvania. March 20, 1905.)

MECHANIC'S LIEN-NOTICE BY SUBCONTRACTOR

-SUFFICIENCY-CLAIM-AMENDMENT.

1. The contract between a contractor and subcontractor referred to the original building contract, and provided that the original plans and specifications were to be considered as if attached; all information therein being known to the subcontractor. The subcontractor did not have possession of such plans and specifications, and could not secure them. Held that, on filing his notice of lien, he sufficiently complied with Act June 4, 1901 (P. L. 436), § 11, cl. 4, if he filed a copy of his contract, without annexing the plans and specifications referred to therein.

2. A subcontractor filed a copy of his contract with the contractor in filing his lien, which contract referred to the plans and specifications, with a provision that they were to be considered as if attached to the subcontractor's contract. Held, that after the statutory period the subcontractor could amend his claim by stating a demand on the owner for a copy of such plans and specifications, and that the demand had been refused, and that therefore he was unable to attach the same.

3. Under Act June 4, 1901 (P. L. 437) § 11, cl. 11, relating to averment of notice of intent

to file a claim, where a subcontractor avers in a statement of claim that a written notice of intent to file a claim, duly sworn to, was served on the owner at a certain date by delivery to him personally, it sufficiently complied with the statute, without setting out a copy of the notice in his lien.

Appeal from Court of Common Pleas, Philadelphia County.

Action by George H. Thirsk against Samuel W. Evans and George W. Pierson. From an order making absolute a rule to strike off a mechanic's lien, plaintiff appeals. Re versed.

Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, and ELKIN, JJ.

Charles L. Lockwood, for appellant. William W. Porter, for appellees.

ELKIN, J. The questions involved in this case arise on a scire facias sur mechanic's lien under the act of June 4, 1901 (P. L. 431). Evans is the owner; Pierson, the contractor; Thirsk, the subcontractor. Evans and Pierson entered into a contract in writing providing for the construction of a building according to the plans and specifications made part of the contract, and remaining in their possession. Subsequently Pierson, by written agreement, sublet certain portions of the work to be done and materials to be furnished to Thirsk. The agreement between Pierson and Thirsk contained a reference to the original agreement between Evans and Pierson, and in relation thereto provided "which articles, plans and specifications are to be considered as if hereto attached, all information concerning same being known to the subcontractor." The learned counsel for appellee contends that the words "which articles, plans and specifications are to be considered as if hereto attached" must be construed to mean that the entire original agreement, including the plans and specifications, is a part of the later contract, and, in order to give validity to the claim, it was necessary to include therein a copy thereof. Clause 4 of section 11 (P. L. 436) of said act provides that the claimant shall file as part of his statement of claim "a copy of his contract or contracts if in writing." It is contended that this requirement of the act has been met by including in the claim a copy of the written contract between Pierson and Thirsk. The claim as filed does not contain a copy of the original article of agreement, plans, and specifications between Evans and Pierson. The question therefore arises whether the reference in the later contract to the original agreement, plans, and specifications makes them such a part of the contract between Pierson and Thirsk as to require that a copy of the same must be filed with the claim. We have held that, as between the owner and contractor, specifications made part of the contract, and essential to it, must be included in statement of claim. Knelly v. Horwath, 208 Pa. 487, 57

Atl. 957. This case holds, however, that the plans, while a part of the contract and material as between the parties, are not essential to, and need not be included in, the claim. Mr. Justice Fell, writing the opinion of the court, said: "The purpose of the eleventh section of the act is to require the claimant to state the nature and extent of the lien claimed, and the grounds on which the demand is based. Full effect may be given to the part of this section that provides for the filing of a written contract without adopting a construction that would require the filing of building plans." In other words, these provisions will be so construed as to give proper effect to the spirit and purpose of the act. In this case the claimant was not a party to the original contract, and did not have the possession of the plans and specifications. In his agreement with the contractor, Thirsk, in effect, says: "I do not own or have possession of the plans and specifications, but I have looked them over, and agree to do the work and furnish the materials as therein provided." The only contract made by the claimant is the one a copy of which is set out in full in his claim. Does the act of 1901, because of the reference in the later contract to the origi- | nal agreement, plans, and specifications of the former one, make it an essential requirement to the validity of this claim that a copy of all these things should be therein set out? This claimant is without authority to enforce a demand for a copy thereof. It is true, Thirsk used the plans and specifications in ascertaining the kind and character of the work to be done, and the quantity and quality of the materials to be furnished, but they were not his property. He did not have the possession of them for purposes of his own, and was refused a copy when he requested the same. These facts clearly distinguish this case from Knelly v. Horwath, 208 Pa. 487, 57 Atl. 957. This act should not be construed to require a claimant to do an impossible thing.

Another important question must be considered. When the motion to strike off in the court below was made, the claimant moved to amend the claim as filed by stating therein reasons for his failure to attach a copy of the original agreement, plans, and specifications. The amendment was refused. The court did not file an opinion, but, inasmuch as the statutory period for filing the claim had expired, we must conclude that this was the reason for the refusal. The pe tition for the amendment substantially set out that the article of agreement between the owner and contractor, together with the plans and specifications, belonged to and reimained in their possession, or in the possession of the architect representing them; that the claimant by application and request endeavored to procure copies thereof for the purpose of including them in his claim, but was refused, and thereby prevented from at

taching the same thereto. It cannot be doubted that, if these facts had been stated in the original claim, the court would hold that the claimant had done all the act reasonably required of him in reference to copies of contracts, and that the validity of the claim could not be attacked on this account. We therefore come to the question whether the claim can be amended in this respect after the statutory period for filing the same has expired. We think it can. Section 51 (P. L. 454) of said act expressly authorizes amendments in very general terms, and provides, inter alia: "Such amendment shall be of right, saving intervening rights; except that no amendment of the claim shall be allowed, after the time for its filing has expired, which undertakes to substitute an entirely different property from that originally described in the claim, or a wholly different party as the defendant with whom the claimant contracted." This provision of said act has not received interpretation by this court. It becomes necessary to consider it now. It will be noticed that the amendments shall be of right, saving intervening rights. There is no limitation as to the time of making amendments, and the reasonable presumption is the act intended that proper amendments can be made at any time during the existence of the lien or course of the trial. There can be no doubt that the amendment asked for in the court below was a proper one, and within the provisions of said act relating to amendments. The claim contained the only copy of a contract the claimant entered into and had possession of. The plans and specifications belonged to, and were in the possession of, the owner, contractor, or architect. The claimant made application to these parties for copies, which they refused. If, as the learned counsel for appellee contends, the plans and specifications are an essential part of the contract, necessary to be filed with the claim, then certainly the claimant should be permitted to show why he had not been able to file copies thereof. It will not be seriously contended that the owner, having the possession of the article of agreement, plans, and specifications, and refusing to give copies to the claimant, will be permitted to come into court and defeat the claim because copies of these contracts which he withholds have not been filed. Such a doctrine would permit the owner, by taking advantage of his wrongful act, to invalidate the lien, and render the law inoperative. He is estopped from so doing. McCormick v. Lawton, 3 Neb. 449. The court was in error in refusing to allow the amendment.

Two reasons presented in the court below on the motion for a rule to strike off raise the question as to what the act requires to be stated in the claim in reference to notice to the owner of an intention to file the same. As such notice is an essential prerequisite, and cannot be amended, it becomes necessary