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John W. Hogan and Philip S. Knauer, for plaintiff. John A. Tillinghast, for defendant.

DOUGLAS, J. This action was brought to recover for certain plumbing work done by the plaintiff on several buildings owned by the defendant. There is no disagreement about the performance of the work or the price. The only question is whether the defendant is liable to pay for it. Both parties agree that the work was let to the plaintiff, under contract, through one J. D. Furlong, acting as agent for the defendant; that the plaintiff knew that Furlong was acting in this matter as agent; and that the defendant was his principal. The plaintiff claims that he charged the account to defendant as principal, and treated Furlong only as agent for defendant. The defendant claims-First, that credit was given by the plaintiff to Furlong alone; secondly, that the defendant settled its account with Furlong, and credited him with the payment of this bill, and the plaintiff, knowing the relations of the parties, has so conducted himself as to estop him from claiming payment of the defendant; and, lastly, that Furlong has paid the plaintiff this bill. The jury returned a verdict for the plaintiff for $471.81, the amount claimed, and also found specially "that at the time the work in question was done the plaintiff did not give credit exclusively to Furlong." The defendant prays for a new trial on the grounds: (1) that the verdict is against the law and the evidence; (2) that certain evidence tending to show payment by Furlong was erroneously excluded by the court; (3) that the verdict is excessive. The latter ground is not insisted úpon at this hearing.

1. The first question for consideration is one of fact, viz., whether the plaintiff gave credit to the defendant or to the defendant's agent exclusively. Upon a consideration of all the circumstances of the case, we cannot say certainly that the jury erred in deciding this question. It was properly left to them to decide. Whitney v. Wyman, 101 U. S. 392, 25 L. Ed. 1050; Meeker v. Claghorn, 44 N. Y. 349; Hovey v. Pitcher, 13 Mo. 191. It appears that Furlong was the agent of several property owners, and was in the habit of attending to work done upon their several estates, and in this capacity engaged the plaintiff to do the work in question. The plaintiff knew that the defendant was the owner of the premises, and supposed, as was the fact, that Furlong was its agent, duly authorized to procure the work to be done. He testifies that he intended to hold the defendant, and not Furlong, as his debtor. Against this statement is the evidence of Furlong that the plaintiff gave credit to him, and not to the defendant, and the fact that in the plaintiff's journal, which we consider to be shown by the book itself, he first charged the items of the work to

J. D. Furlong & Co., and afterwards added to the entry the abbreviation "Agts.," and interlined the words "Prov. County Savings Bank"; also, that he made persistent efforts to collect the bill of Furlong, and only presented it to the defendant when these efforts proved fruitless. All these circumstances combine to throw great doubt upon the plaintiff's claim; but we cannot say that they conclusively overthrow his testimony, corroborated by the presumption that he would naturally retain his valid claim against a perfectly responsible debtor, rather than abandon his right and take the agent as his debtor alone.

The changes in his book were evidently an afterthought, and very seriously impugn his veracity; but the book amounts to little more than a memorandum, and he may have considered it proper enough to correct the entries, which were carelessly made in the first instance. If he had thus explained his action, he would have been more worthy of credence than when he testifies that the additions were made when the entries were. Still, omitting the amendments entirely, we only have the fact that the book account stands charged against the agent, and not against the principal; and this is not conclusive of the fact in issue. It is said by Earl, J., in Meeker v. Claghorn, supra: "The evidence should be quite clear that the vendors gave exclusive credit to the agent of known principals, before we can hold the principals exempt from liability. In all cases where the principals seek exemption upon the ground that the credit was exclusively given to their agents, this should clearly appear, and they have the affirmative to show it; the natural presumption being in all cases that credit is given to the principal, rather than to the agent. It is sufficient to say, upon this branch of the case, that there is no conclusive evidence that the credit was given by the vendors exclusively to the agent, and that they intended to look to him solely for their pay. It is true that upon the ledger and daybook of the vendors the articles were charged to Shell, and, while this furnishes strong evidence that they were furnished upon his credit, it does not show it conclusively. The plaintiff gave some explanation tending to weaken the effect of this evidence, and its weight, under an the circumstances of the case, was for the referee." To the same effect see Guest v. Burlington Opera House Company, 74 Iowa, 457, 38 N. W. 158.

2. The next claim of the defendant is that the plaintiff ought not to recover in this action, because his delay in presenting his bill induced the defendant to credit the agent with the amount of it in the settlement of his account. As a matter of fact, the defendant received of its agent, as a voucher to his account, a bill for this work receipted by the agent in the name of the plaintiff. Without inspection of the voucher the sum

was credited to him, and the balance due from him so much reduced. It does not appear that any actual settlement, by the payment of this balance to the defendant, has ever taken place; and, if so, it is clear that, as the defendant is not bound by the statement of balances predicated upon the misrepresentation of the agent, it has only been drawn into a paper settlement, which can be revoked at its pleasure, and has suffered no real damage. But, if the settlement had been made by the payment of the balance found, we do not see how the mere delay of the plaintiff to require payment can bar his action now.

What misled the defendant was the misrepresentation of its own agent, for which the plaintiff is not responsible. It is not true that the defendant thought it was not the debtor, but that it believed the statement of Furlong that the bill was paid.

The cases cited by defendant do not support the proposition it contends for. Kymer v. Suwercropp, 1 Camp. 109, holds that an undisclosed principal who has settled with his broker is liable to a vendor of goods bought by the broker, if the vendor makes demand on the principal in due season, or, in the case cited, before the stipulated day of payment. Smethurst v. Mitchell, 1 El. & El. 622, was likewise the case of an undisclosed principal whom the court held might be made liable if the plaintiff, within a reasonable time after discovering him, elected to proceed against him, but who would be discharged of all liability if the plaintiff lay by an unreasonable time and thereby induced him to alter for the worse his position toward the agent. Neither case concerns the condition of liability of a principal known to be such and to whom credit is originally given.

3. The last claim upon which the defendant insists arises as follows: Defendant expected to prove by Furlong, among other things, that he had paid this bill. At the time of the trial Furlong was absent out of the state. The plaintiff admitted that, if present, he would testify as expected by the defendant. In further support of this defense defendant offered the books of account of Furlong, which were admitted to be genuine and kept in the ordinary course of his business. Plaintiff objected to them as irrelevant, and, the objection being sustained, defendant duly excepted. He now argues that these books were admissible as the shop books of the defendant, kept by its clerk or agent, or as the books of a third party kept in the regular course of business, or to refresh the memory of Furlong. As the books are described, it is very evident that they were in no sense the books of the bank. Furlong was a real estate agent, and set down in his books debits and credits relating to that business, involving, no doubt, men. tion of his transactions with the defendant as well as with other customers. The defendant had no power or right to make or

direct entries therein. The case cited by defendant (Dow v. Sawyer, 29 Me. 119) seems, at first sight, directly in point, but on close analysis is seen to differ materially from the case at bar. The book there under consideration was a memorandum book kept by defendant's agent to record payments made by him on account of defendant for work done on defendant's mill. He seems to have been a superintendent and paymaster for the defendant. After the death of the agent the book was admitted in evidence. It is not quite clear, from the opinion of the court, whether the book was considered to be the defendant's book, kept by its agent, or the book of a third party, who was dead, and who had no apparent motive to pervert the facts recorded. As the book appeared to contain nothing but entries relating to defendant's business, it might well have been considered to be the defendant's book, and so admitted. If it were admitted as the book of a third party, we should differ from the learned court as to its admissibility.

The rule as to the admissibility of the books of third parties is not very clearly stated by the text-writers or the courts. Without attempting to reduce the conflicting decisions to uniformity, it may be said that two general grounds of admissibility of such documents are usually referred to. Either the entry is one made against his interest by a third person, who has deceased or who is beyond the reach of oral examination, or it is the contemporaneous record of a fact which forms part of the res gestæ in which the principal fact in issue occurred, made by a person not interested in the principal fact. "There are two classes of admissible entries," says Professor Greenleaf, "between which is a clear distinction in regard to the principle on which they are received in evidence. The one class consists of entries made against the interest of the party making them, and these derive their admissibility from this circumstance alone. It is therefore not material when they were made. The testimony of the party who made them would be the best evidence of the fact; but, if he is dead, the entry of the fact made by him in the ordinary course of his business and against his interest is received as secondary evidence in a controversy between third persons. The other class of entries consists of those which constitute parts of a chain or combination of transactions between the parties; the proof of one raising the presumption that another has taken place. Here the value of the entry, as evidence, lies in this: that it was contemporaneous with the principal fact done, forming a link in the chain of events and being part of the res gestæ. It is not merely the declaration of the party; but it is a verbal contemporaneous act, belonging, not necessarily, indeed, but ordinarily and naturally, to the principal thing. It is on this ground that this latter class of entries is admitted; and

therefore it can make no difference, as to their admissibility, whether the party who made them be living or dead." 1 Greenl. Ev. (15th Ed.) § 120.

Neither ground exists for the admission of Furlong's books as those of a third party. Without insisting upon the fact that Furlong is in being and his deposition might have been taken, it is plain that an entry of the payment of money by him to the plaintiff is not an entry against his interest, and so the case does not come under the first branch of the rule; and it is equally clear that the payment of this bill to the plaintiff is the principal fact alleged in this defense, and not a contemporaneous fact leading up to the main issue. These distinctions are very clearly brought out in the case of Sypher v. Savery, 39 Iowa, 258, 262. In that case it became important to show the payment of a certain sum of money from Keene to Savery. It was alleged that this payment was made to White on Savery's account, and White's books were offered to prove the fact. The court says: "We think the account is not competent evidence to establish the indebtedness of defendant. Entries in books of account made by third persons are admissible in evidence, when it is shown that the party making them is dead and that the entries were against his interest. Neither fact appears in this case. It is not shown that White is dead, and it very clearly appears that the charges in the account were not against but in accord with his interest. The entries to the credit of Savery may be regarded as against the interest of White; but those to his debit were clearly in his favor, or they would tend to release him from liability if any force be given to them. The fact that White was charged with the duty of receiving money from the subscribers and paying it over to Savery does not make the case out of the rule. He became liable on receiving the money. Payment to Savery discharged him of such liability. The entries in the account which tend to show Savery's liability with equal force relieve White of liability. They are, therefore, not against his interest. But it is insisted that these entries are admissible on the ground that they are a part of the res gestæ, or contemporaneous with the principal fact done. It is true that an entry that is of the res gestæ and is contemporaneous with the principal fact done is admissible. But the rule is not applicable to the fact before us. The principal fact done was the payment to Savery of the money in controversy. This is the very transaction itself upon which defendant's liability is based. It cannot be said that this fact is of the res gestæ or contemporaneous with itself. the entry related only to circumstances connected with he payment, to time or manner thereof, the rule might be applicable. But when it covers the whole transaction, and leaves nothing else to be proved in order

to make it complete, it is obvious that it is not admissible under the rule referred to."

4. It is contended, lastly, that Furlong's books would have been admissible as memoranda to refresh his memory as a witness. This is true, but has no application to the circumstances of the case. The books were not offered for that purpose, and could not be so long as Furlong was not a witness under examination. Books or papers used by a witness to refresh his memory do not become primary evidence, unless the opposing party makes them so by cross-examination concerning the entries contained in them. The evidence of Furlong was before the court only by admission of the plaintiff as to what he would have sworn to. His evidence could not be extended beyond the demand of the defendant and the admission of the plaintiff. The defendant asked the plaintiff to admit that Furlong, if present, would have sworn to the fact of payment. If he had wished the plaintiff to admit that Furlong, with his memory refreshed by inspection of his books, would have sworn to the fact of payment, he should have made that demand on the plaintiff. Then the plaintiff might have examined the books and made them evidence to impeach Furlong; but, unless this were done, the books would only be supposed to have been subjected to Furlong's examination as aids to his memory. In the circumstances as they were, defendant's counsel had the opportunity of using the books to frame his statement of what Furlong's testimony would be, exactly as Furlong might have used them before testifying, to make up the testimony he should give as a witness. We cannot say, therefore, that the court erred in rejecting the defendant's offer of these books.

The petition must be denied, and the case remitted to the common pleas division for judgment upon the verdict.

(24 R. I. 555)

CRANDALL v. STAFFORD MFG. CO. (Supreme Court of Rhode Island. Dec. 22, 1902.)

MASTER AND SERVANT-FELLOW

SERVANTNEGLIGENCE-INJURY-CONTRIBUTORY NEG

LIGENCE QUESTION FOR JURY.

1. A person who, under the direction of the superintendent, erects the "hanger" in a mill, on which a pulley shaft is placed, is not, while doing such work, a fellow servant of an operative in the mill.

2. Evidence in an action by a servant for injury resulting from the falling of a pulley shaft in the mill, with which he was working, examined, and held, that the question of his contributory negligence was for the jury.

Action by David H. Crandall against the Stafford Manufacturing Company. Heard on petition of plaintiff for a new trial after a nonsuit. Petition granted.

1. See Master and Servant, vol. 34, Cent. Dig. §§ 392, 393, 396, 408.

Argued before STINESS, C. J., and TILLINGHAST and ROGERS, JJ.

John W. Hogan and Philip S. Knauer, for plaintiff. Walter B. Vincent, for defendant.

TILLINGHAST, J. 1. We think the trial court erred in granting the nonsuit in this case. The witness John S. Grant, who erected the "hanger" upon which the pulley shaft was placed, was not, in the doing of that work, a fellow servant with the plaintiff. The "hanger" was part of an appliance in the mill. It was put up under the oversight of the superintendent, and was intended to be used in facilitating the doing of certain work which the defendant corporation was carrying on. The duty of properly constructing and fastening said appliance, therefore, was clearly one which the law devolved upon the defendant as master, and it could not devest itself of this duty by devolving it upon another. As said by this court in Mulvey v. R. I. Locomotive Works, 14 R. I. 204: "It is the duty of a master, who furnishes machinery for his servants to operate or work about, to see to it that it is reasonably safe. He cannot devest himself of this duty by devolving it on others, and, if he does devolve it on others, they will simply occupy his place, and he will remain as responsible for their negligence as if he were personally guilty of it himself." The same rule, in substance, is laid down in Brodeur v. Valley Falls Co., 16 R. I. 448, 17 Atl. 54; Di Marcho v. Builders' Iron Foundry, 18 R. I. 517, 27 Atl. 328, 28 Atl. 661; Hanna v. Granger, 18 R. I. 507, 28 Atl. 659; Whipple v. R. R. Co., 19 R. I. 587, 35 Atl. 305, 61 Am. St. Rep. 796; Laporte v. Cook, 21 R. I. 158, 42 Atl. 519; McGar v. Natl. Worsted Mills, 22 R. I. 350, 47 Atl. 1092; McDonald v. Postal Telegraph Co., 22 R. I. 134, 46 Atl. 407; and Cummings v. Natl. Worsted Mills, 24 R. I. 390, 53 Atl. 280.

2. The case is not controlled by the dictum of this court in Laporte v. Cook, 21 R. I. 158, 42 Atl. 519. That was a case where the defendant city was engaged in digging a trench and laying water pipes therein. The trench was not sheathed, and the plaintiff, while digging bell holes at the bottom thereof, as he was directed to do by the foreman, was injured by the sudden caving in upon him of the bank of said trench. We held that, in view of the circumstances which appeared in evidence regarding the plaintiff's ignorance of the condition of the soil, the very brief time that he had worked in the trench before it caved in, his ignorance of the fact that it had repeatedly caved in before, etc., and in view of the further fact that nothing appeared to be dangerous in connection with the trench, the plaintiff's conduct in attempting to do the work as directed by the boss was not, as matter of law, a negligent act. We also suggested that if the city had fur

nished the necessary sheathing for the trench, and the boss or foreman had neglected to use it and the plaintiff had been injured by reason of such neglect, the defendant's contention of nonliability on the part of the city would have been tenable, as such neglect would then have been that of a fellow servant. That this suggestion or dictum was in accordance with the well-settled rule of law under such a state of facts we see no reason to doubt. In Dube v. Lewiston, 83 Me. 211, 22 Atl. 112, which was specially relied on by us in support of the position thus taken, the court held that the street commissioner discharged his duty when he assigned to the work of digging the trench an experienced and competent foreman and furnished him with suitable and sufficient materials for any appliances necessary for the safe conduct of the work, and that the use and application of the materials formed a part of the duty of the workmen. The court further held that, if the commissioner's failure to place shoring against the side of the trench where the earth fell could be deemed negligence, it was the negligence of a fellow servant. It also held that said street commissioner was not required to perform any duty in the premises which legally belonged to the province of the master. But that the court did not intend by said decision to overrule or modify the well-settled rule of law regarding the duty and liability of a master in cases like the one before us is evident from the rule which it then adopted, namely: "The true test, it is believed, whether an employé occupies the position of a fellow servant to another employé, or is the representative of the master, is to be found, not from the grade or rank of the offending or of the injured servant, but is to be determined by the character of the act being performed by the offending servant, by which another employé is injured, or, in other words, whether the person whose status is in question, is charged with the performance of a duty which properly belongs to the master." The case of Zeigler v. Day, 123 Mass. 152, was similar to the one just referred to. There the plaintiff alleged a neglect on the part of the defendant to provide sufficient security against the caving in of a trench which he was digging for the defendant. But the court, in granting a nonsuit, said: "The work was committed to the supervision of a skillful and competent superintendent. It required for the protection of the men the frequent use of temporary structures, the location and erection of which, as the digging progressed, was a part of the work in which the superintendent and the men under him were alike employed, and for the preparation of which, as in case of the scaffold of the mason or the carpenter, the master is not liable, unless there is something to show that he assumed it as a duty independent of the servant's employment."

In cases like Laporte v. Cook and those just referred to, therefore, it is evident that a different rule applies, and must of necessity apply, from that which obtains in cases like the one now before us. That is to say: In the digging of a trench, the proper mode of doing the work and of applying the safeguards necessary for the protection of the workmen must, from the nature of the case, be left to be determined by the foreman or boss as the work of excavating progresses; and hence all that the master can reasonably be required to do is to furnish such appliances as may be found necessary to meet any contingency that may arise. And, as held in Zeigler v. Day, supra, the erection of such temporary structures is a work in which both the foreman and those under him are alike employed, the former simply occupying a higher grade than the latter in the doing of the work,-and hence the fellow servant rule applies thereto. To the same effect are McDermott v. Boston, 133 Mass. 349; Floyd v. Sugden, 134 Mass. 563; Clark v. Soule, 137 Mass. 380; Larich v. Moies, 18 R. I. 513, 28 Atl. 661; and Laporte v. Cook, 22 R. I. 554, 48 Atl. 798. In the doing of the work in question in the case at bar, however, the servant, Grant, occupied the place of the master. In other words, he was the master in the doing thereof; and hence, if it was improperly or negligently done, and the plaintiff was injured by reason thereof, he, being free from contributory negligence, is entitled to recover. The character of the act done by Grant devolved it upon the master; and hence, under the rule laid down in Hanna v. Granger, supra, and followed in all the subsequent cases in this court in which the question has arisen, Grant was not a fellow servant with the plaintiff in the doing of said work.

3. Whether the plaintiff was guilty of contributory negligence in putting the belt upon a moving pulley was clearly a question for the jury under the evidence submitted, and it was, therefore, error for the court to decide that question. There was undisputed evidence that it was always customary to put on belts when the pulleys were moving, and also that the plaintiff was experienced and skillful in doing such work; and it is evident that no injury would have resulted to him from putting on the belt in question, or, rather, in assisting the witness Grant, at his request, in putting it on, as the evidence shows that he did, had not the "hanger" which supported the shaft given way, thereby causing the shaft to fall toward the plaintiff immediately after the belt was put on, whereby he became entangled in the belt and was injured. The plaintiff testified in part, relative to the manner in which he received the injury, as follows: "Q. When you got the belt, and got it on the pulley of the main shafting, and the power caught it, tell the jury what happened. A. The shaft

ing of that countershaft dropped down for the want of being properly put up, and, of course, the belt was on the main shaft, and that drew that toward me instantly, and that twisted the other hanger off, and then the whole thing came at me. It was all done in an instant. Q. Tell us what happened. A. Whether I tried to jump out of the way, or whether the thing caught and knocked me down, I don't know. It was done too quick to explain how it was done. I know it took me over the shaft, belt and all. Q. How many times? A. I know I went over twice." In view of this testimony, it cannot be said, as matter of law, that the plaintiff was guilty of contributory negligence in assisting Grant in adjusting the belt. The well-settled rule in this state is that where the evidence is such that different minds, fairly considering it, might draw different conclusions therefrom, the question of contributory negligence is one for the jury to determine. Boss v. Ry. Co., 15 R. I. 149, 1 Atl. 9; Clarke v. Electric Lighting Co., 16 R. I. 466, 17 Atl. 59; Elliott v. Ry. Co., 18 R. I. 711, 28 Atl. 328, 31 Atl. 694, 23 L. R. A. 208; Swanson v. Ry. Co., 22 R. I. 122, 46 Atl. 402; Blackwell v. O'Gorman Co., 22 R. I. 638, 49 Atl. 28.

Plaintiff's petition for new trial granted.

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1. In a case where there is no certain measure of damages, the verdict cannot be disturbed, as excessive, unless the amount awarded is so excessive, in view of the evidence, as to show passion and prejudice.

2. A witness may refresh his memory from a memorandum made by him from original memoranda which had been made by him or under his direction at the time the event recorded occurred, and the fact that the memorandum used is not the original will not exclude his evidence.

3. In an action by a tenant for breach of a covenant in a lease to keep the ceiling of a room in such repair as to prevent injury to the tenant's goods, the landlord testified that he knew nothing of any claim by the tenant on that account. The plaintiff sought to show that the landlord was familiar with correspondence had by plaintiff with the landlord's agent, in which the claim was made and promise giv en to refer it to the landlord, and that a bill for storage, afterwards presented by the landlord's agent, was concocted as an offset thereto. Held, that it was not error to compel defendant, on cross-examination, to testify as to presenting the bill for storage; the connection with the plaintiff's claim being subsequently established as indicated.

Exceptions from common pleas division.

Action of covenant by Welch & Co. against Forrest Greene. From a judgment for plain

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