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or coercion, to perform a piece of work which was obviously and apparently dangerous, and such as a reasonable and prudent man would not perform, that then he would be guilty of contributory negligence."

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We think the charge was erroneous. Its effect was to authorize the jury to acquit plaintiff of contributory negligence, even though they should conclude that in obedience to an order of his superior he exposed himself to a danger so obvious that no reasonably prudent man would have done it.

In 26 Cyc. 1245, it is stated: "Where a young or inexperienced servant undertakes dangerous work in obedience to the commands or threats of the master or his authorized agent, he will not be held guilty of contributory negligence, unless the danger was so manifest and glaring that it must have been known to one of his age and experience that he could not do it without injury."

At page 1241, the same author says: "Where a danger is as open and obvious to the servant as to the master, or where the servant has better means of knowledge than the master, he will be charged with such negligence as to bar a recovery." If there is ground for reasonable difference of opinion as to the danger, the servant is not bound to set up his judgment against that of his superiors whose orders he is required to obey, and he may rely on the judgment of the superior, but the servant cannot recklessly or carelessly obey an order of his superior requiring him to do an obviously dangerous act: Stephens v. Southern Ry., 82 S. C. 542, 64 S. E. 601.

Such is the rule which prevails generally, and we do not understand that the rule in North Carolina is different. The law in that state is thus expressed in Mason v. Richmond etc. R. Co., 111 N. C. 482, 16 S. E. 698, 18 L. R. A. 845. "If the servant acts upon a well-grounded fear of losing his place, the reason of the rule would be met and he should be declared free from culpability, unless the plaintiff recklessly exposed himself to manifest peril, or chose to subject himself to danger when another safe mode of discharging his duty was open to him." (Italics ours.)

The judgment of the circuit court is reversed and the case remanded for a new trial.

Mr. Justice Gary dissents.

The Right of an Employé to Recover for Injuries Received in Obeying Orders which involve him in danger is discussed in the note to Houston etc. Ry. v. De Walt, 97 Am. St. Rep. 896. As a rule, employés acting under the immediate orders of their superior have a right to rely upon his judgment, unless the work is so manifestly dangerous that a person of ordinary prudence would not undertake it: Pittsburg etc. Ry. Co. v. Schaub, 136 Ky. 652, 136 Am. St. Rep. 273.

PARKER v. MAYES.

[85 S. C. 419, 67 S. E. 559.]

JOINT NOTE.-Parol Evidence is not Admissible in favor of a joint and several maker of a note to show an understanding at the time he signed it that he was to be liable for only one-half the amount thereof. (p. 913.)

RELEASE-Payment of Less Than Sum Due.-A Joint and Several maker of a note cannot show, in an action thereon, that when demand was made on him he denied liability except for one-half the amount, whereupon the holder agreed to release him from all liability on his paying one-half of the note. (p. 913.)

RELEASE.-The Payment of a Smaller Sum Than a Liquidated debt in pursuance of an agreement, not under seal, to accept such sum in satisfaction, cannot be satisfaction of the whole, but operates only as payment pro tanto. (p. 913.)

PLEADING.-A Motion to Amend an Answer is Addressed to the discretion of the trial judge, and his action is not subject to review unless there has been an abuse of discretion. (p. 914.)

PLEADING—Showing Payments Under General Denial.—Where the complaint in an action on a note alleges credits and that there is a specified balance due, the defendant may show other payments under a general denial. (p. 914.)

Eugene W. Able, for the appellant.

Lyles & McMahan, contra.

420 JONES, C. J. This is a suit upon a promissory note dated February 29, 1904, signed by the defendants, who jointly and severally promised to pay to the order of S. C. Cook twelve hundred dollars sixty days after date. Cook indorsed and delivered the note to S. M. French before maturity, but, as matter of fact, the note was taken for property belonging to French and sold by Cook as his agent, and French was real owner of the note when it was executed. French became bankrupt, and plaintiff became owner and possessor of the note as trustee in bankruptcy. The defendant, Anderson, was not served, and judgment was not demanded against him.

Upon the trial, Judge Dantzler directed a verdict against defendant, Mayes, for eight hundred and forty-seven dollars and thirty-eight cents.

Upon a previous motion Judge Shipp made order striking out from defendant's answer after the word "herein" on second line down to and including "payment" on last line of the following, which constitutes the second defense.

"1. That he admits that he signed the note, as set out in the complaint herein, but alleges that it was understood and agreed by all parties at the time that he signed it that he was liable for one-half thereof only, and that this defendant is informed and believes and alleges that S. M. French, the

party to whom the note was transferred by S. C. Cook, was advised of and fully knew all these facts when he acquired the aforesaid note.

"2. That when the said S. M. French caused the said note to be presented to this defendant for payment, this defendant denied liability for any amount of the said note save and except one-half thereof, and advised the aforesaid S. M. French that he would resist payment, if necessary, by litigation; whereupon, said French agreed with this 421 defendant that if he would pay the one-half thereof, said amount would be accepted in full of all this defendants' liability thereon, and he would be released from all further liability thereon; whereupon, and in consideration of this agreement and understanding between the defendant and the said S. M. French, this defendant paid to the order of the said S. M. French one-half of the said note. That the said amount was accepted with this understanding, and with a memorandum of the same made on the check that this defendant gave in payment."

In appealing from the judgment on verdict, appellant assigns error to the order of Judge Shipp.

Even if we should waive the point that appellant should have appealed from the order of Judge Shipp, there was no error. The allegation as to the contemporaneous agreement was in conflict with the well-established and salutary rule which forbids parol testimony to vary or contradict the terms of a written instrument. The note was both joint and several, "We or either of us promise to pay," and the alleged agreement was to the contrary. Parol evidence of contemporaneous, collateral or independent agreement is only admissible when it does not vary or contradict the writing: Virginia-Carolina Chemical Co. v. Moore, 61 S. C. 166, 39 S. E. 346; Ashe v. Carolina & N. W. R. R. Co., 65 S. C. 134, 43 S. E. 393; Earle v. Owings, 72 S. C. 362, 51 S. E. 980; Clarke v. Home F. L. Ins. Co., 79 S. C. 494, 61 S. E. 80.

The subsequent agreement alleged could not avail defendant. As declared in Ex parte Ziegler, 83 S. C. 78, 64 S. E. 513, 916, 21 L. R. A., N. S., 1005, the rule derived. from Pinnel's Case, Coke, 117, is enforced in this state. "The payment of a sum smaller than a liquidated debt in pursuance of an agreement, not under seal, to accept such sum in satisfaction cannot be satisfaction of the whole. Such payment, notwithstanding the agreement, operates only as a payment pro tanto."

After this, and before trial, motion was made before Judge Dantzler to amend the answer so as to allege that 422 defendant "has paid in full all his liability on the note

Am. St. Rep., Vol. 137-58

described in the complaint, and that he is fully discharged from all further liability or responsibility on account of the said note by reason of said payment," which motion was refused, and exception is now taken to such refusal.

"Such motions are addressed to the discretion of the circuit judge, and his action is not subject to review by this court unless there has been an abuse of discretion": Clerks' B. Union v. Knights, etc., 70 S. C. 548, 50 S. E. 206. We see no abuse of discretion in this case.

There is nothing in the record to show that it was made to appear to the court that the amendment sought to plead payment otherwise than as attempted in the matter previously stricken out. Moreover, since the complaint alleged credits and that there was a specified balance due, defendant could have shown other payments under the general denial.

The foregoing conclusions control the remaining exceptions to the exclusion of testimony, for the excluded testimony merely related to the alleged defense stricken out by the order of Judge Shipp.

The exceptions are overruled and the judgment of the circuit court is affirmed.

The Acceptance of Part of a Debt or Claim as a Satisfaction of the Whole is discussed in the note to Harris v. Henderson, 100 Am. St. Rep. 409. Where a claim is disputed and unliquidated, the acceptance of part in settlement thereof is a satisfaction of the demand, and a release in full given upon the settlement is conclusive: Harvey v. Denver etc. R. R. Co., 44 Colo. 258, 130 Am. St. Rep. 120. See, also, Canadian Fish Co. v. McShane, 80 Neb. 551, 127 Am. St. Rep. 791, and cases cited in the cross-reference note thereto.

Parol Evidence of Conditions in Notes and bills is the subject of a note to Hughes v. Crooker, 129 Am. St. Rep. 609.

Subsequent Parol Agreements to Vary Writings are discussed in the note to Harris v. Murphy, 56 Am. St. Rep. 659.

BROWN v. WESTERN UNION TELEGRAPH COMPANY. [85 S. C. 495, 67 S. E. 146.]

CONTRACTS.-The Law of the State Where a Contract to transmit a telegraphic message is made, and is to be performed, either in whole or in part, governs as to its nature, validity and interpretation. (p. 918.)

TELEGRAPH COMPANY.-Where a Telegraph Company Neglects to transmit a message promptly, the failure to convey the information from the sender to the addressee, and not the wrongful act of an agent at any particular point prior to the delivery, constitutes the delict. (p. 918.)

TELEGRAPH COMPANY.-A Telegram is in Transit not only while it is being sent over the wires, but during the time it is in

the hands of a messenger for delivery after it reaches the place where the addressee resides. (p. 918.)

TELEGRAPH COMPANY-Mental Anguish-Conflict of Laws. A telegraph company undertaking to transmit a message from a point in South Carolina to a place in the District of Columbia is liable in South Carolina for mental anguish for failure to deliver promptly at the destination, although the law in the District of Columbia does not permit such a recovery except accompanied by bodily injury. (pp. 915, 918.)

TELEGRAPH COMPANY-Conflict of Laws. It is Against Public Policy to require the plaintiff, in an action against a telegraph company for negligence in the transmission of an interstate message, to prove at what point on the line the failure occurred, or to permit the defendant to show that the message was delayed at some specific place, thus making the plaintiff's right of recovery dependent upon the laws of that place. (p. 918.)

TELEGRAPH COMPANY-Reckless Disregard of Rights.-A telegraph company is liable in exemplary damages for a reckless or willful disregard of the rights of a party to a telegram in failing to deliver it at the destination without the state. (p. 920.)

TELEGRAPH COMPANY-Mental Anguish-Conflict of Laws. Where a telegraph company delays the transmission and delivery of a message sent from a point in South Carolina to a place without the the state, and part of the delay takes place within the state, the company is liable for mental anguish under the law of that state. (p. 920.)

Logan & Grace, for the appellants.

Geo. H. Fearons and Mitchell & Smith, contra.

496 GARY, J. This is an action for damages, alleged to have been sustained by the plaintiff, Rosa Brown, through the wrongful acts of the defendant in failing to deliver the following telegram: "Summerville, S. C., January 22, 1908. Mrs. W. M. Brown, No. 72 Canal St., S. W., Washington, D. C. Come at once. Your sister died this morning. Frederika Alston." The appeal is from the charge of his honor, the presiding judge, directing the jury to render a verdict in favor of the defendant.

The complaint alleges that there was not only a failure to deliver the message within a reasonable time, but that it was not delivered at all. The defendant sets up as a defense"that, if there was any delay in the transmission of the said message, and damage caused thereby to the plaintiff, said delay occurred at Washington, in the District of Columbia, and outside the state of South Carolina, in which district the law prevails which does not permit a recovery for mental anguish, unaccompanied by bodily injury." The act of 1901 (page 748) provides: "That all telegraph companies doing business in this state shall be liable in damages for mental anguish or suffering, even in the absence of bodily injury, for negligence in receiving, transmitting or delivering messages."

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