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high, a fact the respondent was not aware of. As he stood in the conveyor, one of these lugs caught his feet, dragged them from under him, and caused him to fall backwards towards the revolving cut-off saw. In the fall his arm came into contact with the saw, causing the injury for which he sues.

were sawed and trimmed. It seems there | proximately 12 feet apart, lugs four inches were in use in this part of the mill two different machines for sawing the blocks, the one a circular cut-off saw some 48 inches in diameter, and a drag saw, operated after the manner of a crosscut saw. The cut-off saw was used to cut blocks from the timber which came into the mill in the form of bolts, while the drag saw was used to cut them from timber which came into the mill in the form of logs. Directly back of the cut-off saw was the knee-bolter saw, used to trim the shingle blocks, and put them into shape for the shingle saws. Running from underneath the knee-bolter saw towards and past the cut-off saw, and on out to a burner some distance from the mill, was an open chain conveyor, used to carry off the waste and refuse left from the operation of sawing and trimming the shingle blocks. The conveyor was 18 inches wide at the bottom, 30 inches wide at the top,. and of a depth of 16 inches. Lying between the saws was a place called the deck, on which the blocks cut from logs were split into suitable sizes for handling by the knee-bolter.

When the respondent entered the mill after the meeting with his employer, the mill crew had just finished cutting blocks with the cut-off saw, and a log had been drawn into the chute where the drag saw was operated. The respondent was told to assist in getting the log into a position where the saw could be used upon it. This he did, when he was told to take the blocks as they were cut from the log, split them into convenient sizes for the knee-bolter to handle, and place the split pieces within the kneebolter's reach. After working at this for a while, he discovered that refuse from the logs had accumulated on the deck in such a quantity that it materially interfered with his work. To get it out of the way, he started to scuff it off into the conveyor with his feet, when Wilder, the knee-bolter, pointed to a scoop shovel standing in a corner of the mill, and by motions indicated that he could use it for the purpose of cleaning the deck. The respondent thereupon got the shovel and shoveled the waste into the conveyor. This caused the conveyor to clog, whereupon Wilder left the knee-bolter pit, came over and removed the clog by getting into the conveyor and stamping and scuffing the waste with his feet. As the work progressed, the respondent found it necessary from time to time to again clear the deck by shoveling the waste into the conveyor. As he did so, he discovered that the conveyor had again clogged at a place a short distance from the cut-off saw. This saw had been left in motion during the time the respondent had been in the mill, although apparently without necessity. To remove the clog he went over and got into the conveyor with his feet, as he had seen his instructor do on the previous occasion. The conveyor

[1] The appellants' first and principal contention is that the facts do not justify a recovery. They argue that the respondent acted without instructions when he got into the conveyor with his feet to remove the accumulated débris, and, further, that the act was one so hazardous in its nature that it was not to be supposed that an ordinarily prudent person would undertake it. But these were questions for the jury. While the respondent was not directed in words to keep the conveyor clean, the inference that he was expected to do so seems to us to scarcely admit of a doubt about the matter. At any rate, the inference is sufficiently strong to make the question one for the jury, and we are bound by the verdict. So with the contention that the act itself was so reckless as to forbid a recovery. While it looks foolhardy in the light of what happened, it cannot be said that no ordinarily prudent person would have undertaken it, having only such knowledge of the danger of the act as the respondent possessed. He did not know there were lugs on the conveyor chain to drag him down, and his instructor had performed the same act with safety but a few hours before.

Certain special interrogatories were submitted to and answered by the jury, among which were the following: "Was the act of the plaintiff in stepping into the conveyor near to the cut-off saw and attempting to loosen refuse with his feet a very dangerous act? Answer: Yes; from the fact that the cut-off saw was not properly guarded. Interrogatory No. 12: Was the method employed in getting into the conveyor and attempting to loosen refuse with his feet a safe method? Answer: Yes; provided cutoff saw had been properly guarded.”

[2] It is argued that the answers to these interrogatories are contrary to the general verdict, because the jury found the act of the respondent in stepping into the conveyor "a very dangerous act"; in other words, it is contended that the jury by these findings found the respondent guilty of contributory negligence, which is contrary to the general verdict, which found the appellants liable to answer for the injury. But we think the appellants place a wrong construction on the special verdict. The fact that the act performed by the respondent may have been dangerous does not of itself convict him of contributory negligence. Before he can be so convicted, he must have known of the danger, or the danger must have been

dinary prudence would not have attempted | the tender came too late, he was estopped from the act. The special findings made by the claiming that the amount was insufficient. jury do not cover these questions. [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. § 348; Dec. Dig. § 170.*] 2. VENDOR AND PURCHASER (§ 93*)-PAYMENT -DEFAULT-AMOUNT DUE.

The court gave to the jury the following instruction: "You are instructed that the law of this state in force at the time of the injury to the plaintiff alleged in this case, and known as the 'Factory Act,' provides that any person, firm, or corporation, operating a mill where machinery is used, shall provide and maintain in use reasonable safeguards for all saws which it is practicable to guard, and which can be effectively guarded with due regard to the ordinary use of such machinery and the danger to employés therefrom, and with which employés of any such mill are liable to come in contact while in the performance of their duties. You are instructed that, if you find that the cut-off saw complained of in this case, and upon which it is alleged the plaintiff was injured, was unguarded and unprotected, and that it was practicable to guard the same effectively, having due regard for the use of the same, then under the law it would be your duty to find the defendants negligent in that regard; but if you find from the evidence that the cut-off saw on which plaintiff was injured was as well and as practicably guarded as was consistent with its ordinary use, and that any further or additional guards would have impaired its use, or rendered its use more dangerous, the defendants would not be guilty of negligence under the law."

Where a vendee in default in his payments, before the vendor had declared a forfeiture and tender of the full amount due on the contract, before the final payment was due, made a providing for payments "on or before," the whole amount became due ipso facto.

[Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. § 154; Dec. Dig. § 93.*] On Rehearing. Denied.

For former opinion, see 113 Pac. 765.

PER CURIAM. A petition for rehearing has been filed herein, in which it is contended that the court has wrongfully applied the former decisions of this court, in that in this case all of the payments were not due on the contract at the time the first notice of forfeiture was given, and hence there was no duty incumbent on Meisenheimer to ten

der a deed.

We cannot agree with this contention. Before taking up that feature of the case, we held that because of the personal covenants of Meisenheimer the notice of forfeiture given by Maud Motley Meisenheimer was ineffectual to work a forfeiture of the contract. Our decision might have been made to rest upon this ground alone; but, because we found the whole of the purchase price to be due, we went further, and put our decision upon the additional ground that, where the covenants of an executory contract were mutual and dependent, a forfeiture could not be declared without a tender of the deed. It is said: "It is unquestionably the law that, if all the payments are due, the vendor must tender performance before he can put the vendee in default. If all the payments had been due, we certainly would have tendered a deed with the declaration of forfeiture. The two last pay

[3] It is contended that the court erred in giving this instruction, since it assumed therein, as a matter of law, that failure on the part of the appellants to guard the saw on which the respondent was injured, if it was practicable to guard the same, was negligence, contending that the question whether or not it was negligence to fail to guard the saw was for the jury, and not the court. But we think the court correct-ments being not yet due, that rule does not ly defined the purpose of the factory act. We think it was intended by the act to make it negligence, as a matter of law, for operators of machinery, around which their employés are compelled to work, to fail to guard such machinery when it is practicable so to do. This being the purpose of the act, it was not error for the court to so charge the jury.

apply here. Until November 1, 1909, total payment could not be required, nor was conveyance required. The making of intermediate payments was not concurrent with making the deed."

[1] The record in this case shows that one Lambert, acting for Gottschalk, and after the ineffectual declaration of forfeiture had been made, tendered the sum of $4,344.83,

We find no error in the record, and the and demanded a deed. He further testifies judgment will stand affirmed.

[blocks in formation]

that no objection was made to the amount of the tender; that it was refused solely because it came too late. This, under a wellsettled rule of law, would estop Meisenheimer from claiming that the amount was insufficient. At the time the contract was executed there was a balance due of $2,985. Tender was made 5 years, 8 months, and 10 days after the execution of the contract. The interest for that time at 8 per cent. amounts to $1,359.83, or a total of $4,344.83.

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

[2] Our remark in the former opinion, "His declaration of forfeiture is based upon the default of the last payment, as well as the first, the whole sum was due, and a deed forthcoming," may be misleading; but,

any other reason, when he has not funds, the
payment cannot be recovered.
Banking, Cent. Dig. §§ 455–4642; Dec. Dig. §
150.*1

[Ed. Note.--For other cases, see Banks and

2. BANKS AND BANKING (§ 150*)—DEALINGS

-CHECKS-PAYMENT.

when considered in connection with our hold-
ing that Maud Motley Meisenheimer could
not forfeit the contract, or relieve Meisen-
heimer of his covenants, it seems clear to
us Gottschalk had the right to tender all
payments "on or before" the due date, and,
when he did make tender, the full amount
became due ipso facto. He put the burden
on Meisenheimer, who could not escape lia-
bility by reference to the act of Maud Mot-
ley Meisenheimer, who admittedly was in no
position to carry out the contract. Meisen-
heimer relies upon the first declaration; but
it is evident that, when making up his case,
he did not rely upon the first notice of for-
feiture. It was in the alternative. It declar-
ed that, if payment was not made as de-
manded, "said contract will be forfeited and
declared at an end." All notes were retain-son & Williams, for respondent.
ed, and no attempt was made to assert a for-
feiture by positive declaration, or return of
the notes given to evidence the deferred pay-

Where a bank, after hours, paid certain checks under the mistaken belief that the drawers had funds in the bank, when in fact their funds had been withdrawn that day, it cannot recover from the drawee.

[Ed. Note. For other cases, see Banks and Banking, Cent. Dig. §§ 455-464%; Dec. Dig. § 150.*]

Department 1. Appeal from Superior Court, Spokane County; Wm. A. Huneke, Judge.

ments, until October 12, 1908, two days after Gottschalk had tendered the full amount due

and was entitled to his deed.

Whether an alternative declaration of forfeiture under a contract where notes collateral thereto had been executed would forfeit the rights of the vendee until the notes had been tendered back was not decided by us, nor do we now pass upon that question. There are cases holding that it cannot be done. Comstock v. Brosseau, 65 Ill. 39. It is enough when it appears that no notice sufficient to satisfy the law had been given at the time the tender was made. By the terms of the contract, a tender being made before any legal forfeiture occurred, the whole purchase price became due, and Gottschalk was entitled to his deed.

Action by the Spokane & Eastern Trust Company against Andrew M. I. Huff. From a judgment sustaining a demurrer and dismissing the complaint, plaintiff appeals. Affirmed.

Warren W. Tolman, for appellant.

Dan

FULLERTON, J. The appellant is a banking corporation, and receives money on

deposit subject to check by its depositors. On the morning of October 6, 1909, one Edwin J. Schloss had on deposit in the appellant's bank subject to check the sum of $297, and one Leon J. Schloss had on deposit therein subject to check the sum of $48. During the banking hours of that day the Schlosses severally withdrew their respective deposits. On the same day, and about one hour after the bank had closed its doors to the general public, the respondent, Andrew M. I. Huff, appeared at the bank with the check of Edwin J. Schloss for the sum of $297, and the check of Leon J. Schloss for the sum of $48, both dated upon that day, and presented the checks to the bank's assistant secretary for payment. The assistant secretary thereupon caused inquiry to be made of the book

Our decision is that there was no for-keeper and the paying teller of the bank to feiture, that a tender was made in time, that a deed was forthcoming, that Gottschalk was not bound to pay one who could not perform, that he might have had specific performance, and, waiving that remedy, he could recover his damages. Rehearing denied.

ascertain whether the drawers of the checks had sufficient funds on hand to meet the checks, and, on being informed that they had, paid the checks to the respondent. When the books of the bank were balanced for the day, the overpayment was discovered, and on the next day the checks were tendered the respondent and repayment of the sums demanded. Repayment was refused, whereupon the present action was brought to recover the amount so paid. In the complaint, in addition to the foregoing facts, it was alleged that at the time of the payment the bank had ceased for that day the transaction of business with the public, a fact that the respondent well knew; that it paid 1. BANKS AND BANKING (§ 150*)-DEALINGS the money after business hours as an ac-CHECKS-PAYMENT.

(63 Wash. 225)

SPOKANE & EASTERN TRUST CO. v.
HUFF.

(Supreme Court of Washington. April 21,
1911.)

If a bank in the ordinary course of busi-commodation to the holder of the checks; ness pay a check drawn upon it under the mis- that the reason it did not discover that the taken belief that the drawer has funds, or for depositors drawing the checks had with

drawn their funds was owing to the confusion | should afterwards hold the moneys subject incidental to the closing of the business of the to such a showing as the drawee might be bank for the day; and that the respondent able to make as to the influences operating "did not by reason of said payment so change upon his mind to induce him to make payhis position that he would be prejudice by ment. The beauty and value of the rules repayment of the money so paid to him." governing commercial paper consist in their To the complaint a demurrer was interposed, which the court sustained. Later on a judgment of dismissal was entered, and the appeal followed.

[1] It is a general rule, sustained by almost universal authority, that a payment, in the ordinary course of business, of a check by a bank upon which it is drawn under the mistaken belief that the drawer has funds in the bank subject to check, is not such a payment under mistake of fact as will permit the bank to recover the money so paid.

In Hull v. Bank, Dudley (S. C.) 259, the court passing upon the question used this language: "This question is to be decided rather by authority than general reasoning on the subject. No part of a commercial community is more interested in commercial usages than banks, and they cannot complain when they are required to strictly conform to them. They cannot always guard against fraud and imposition, but they may against mistakes, depending on an inspection of their own books and accounts. Mistakes may be prevented which cannot be remedied. They accepted and paid the check presented by the defendant, for and on account of Hopton, the drawer, whose money they had kept for his convenience and accommodation. The privity of contract was between them and their customer Hopton, and not between them and one who may have happened in the course of dealing to present a check drawn by Hopton. A bank check has all the characteristics of bills of exchange, and cannot be distinguished from them. Indeed, they perform not only all the offices of bills, but are more generally used for the transfer and payment of moneys. They are mercantile agents which should not be crippled in their daily and hourly operations. Before one reaches the bank after it has been drawn, it may have paid and discharged many debts, and, after it has been accepted and paid, all the intervening holders in general are discharged from all liabilities to the bank. It becomes then a transaction between the bank and the drawer; the bank not unfrequently paying money on checks of the drawer, when in fact he has no deposit."

perfect certainty and reliability; they would be worse than useless if the ultimate responsibility for such paper, as between payee and drawee, both acting in good faith, could be made to depend on the motives which influenced the latter to honor the paper."

So in Oddie v. Nat. City Bank of New York, 45 N. Y. 735, 6 Am. Rep. 160, Church, C. J., discussing the question, said: "When a check is presented to a bank for deposit, drawn directly upon itself, it is the same as though payment in any other form was demanded. It is the right of the bank to reject it, or to refuse to pay it, or to receive it conditionally, as in Pratt v. Foote, 9 N. Y. 463; but if it accepts such a check and pays it, either by delivering the currency, or giving the party credit for it, the transaction is closed between the bank and such party, provided the paper is genuine. In the case of a deposit, the bank becomes at once the debtor of the depositor, and the title of the deposit passes to the bank. The bank always has the means of knowing the state of the account of the drawer, and, if it elects to pay the paper, it voluntarily takes upon itself the risk of securing it out of the drawer's account or otherwise."

In Manufacturers' National Bank v. Swift, 70 Md. 515, 17 Atl. 336, 14 Am. St. Rep. 381, it was said: "It is the duty of a bank to know the state of its depositor's account, and if it makes a mistake in this respect it must abide the consequences. The presentation of a check is a demand for payment; if it is paid, all the rights of the payee have been satisfied, and he is not entitled to ask any questions. It would forever destroy the character of a bank in all commercial circles, if, when it was ready and willing to pay a check, it permitted the holder to inquire if the drawer had funds there to meet it. It is a matter with which he has no concern. In the absence of fraud on the part of the holder, the payment of a check by a bank is regarded as a finality. And the fact that the drawer had no funds on deposit will not give the bank any remedy against the holder."

In National Bank of N. J. v. Berrall, 70 N. J. Law, 757, 58 Atl. 189, 66 L. R. A. 599, 103 Am. St. Rep. 821, it was said: In First National Bank v. Burkham, 32 "As between the holder of a check and the Mich. 328, Judge Cooley, writing for the bank upon which it is drawn, the latter is court, used these words: "But we think it bound to know the state of the depositor's would be an exceedingly unsafe doctrine in account. Before paying the check it must commercial law that one who has discount- take into consideration whether it was ed a bill in good faith, and received in its drawn against funds, and whether the order payment the strongest possible assurance for payment, evidenced by the check, has that it was drawn with proper authority, subsequently been revoked. Therefore, where

115 P.-6

take.

The judgment is affirmed.

a bank receives in the ordinary course of prove the officers themselves more culpable, business a check, drawn upon it and present- but it cannot change the effect of the mised by a bona fide holder, who is without notice of any infirmity therein, and the bank pays the amount of the check to such holder, it finally exercises its option to pay or not to pay, and the transaction is closed as between the parties to the payment."

DUNBAR, C. J., and PARKER and MOUNT, JJ., concur.

STATE v. SMAILS.

(63 Wash. 172)

(Supreme Court of Washington. April 17, 1911.)

See, also, Citizens' Bank v. Schwartzschild, 109 Va. 539, 64 S. E. 954, 23 L. R. A. (N. S.) 1092; Boylston National Bank v. Richardson, 101 Mass. 287; Riverside Bank v. First National Bank, 74 Fed. 276, 20 C. C. A. 181; National Bank v. Burkhardt, 100 U. S. 686, 25 L. Ed. 766; City Nat. Bank v. An information for perjury sufficiently negBurns, 68 Ala. 267, 44 Am. Rep. 138; Nation-atives the truth of the testimony given, where

al Gold Bank v. McDonald, 51 Cal. 64, 21 Am. Rep. 697; Consolidated Nat. Bank v. First National Bank, 129 App. Div. 538, 114 N. Y. Supp. 308; Morse on Banking (4th Ed.) § 455.

1. PERJURY (§ 26*)-INFORMATION-SUFFICIENCY-FALSITY OF TESTIMONY.

it sets out the testimony and charges its falsity not only by negation but by setting out the true facts by way of antithesis. [Ed. Note. For other cases, Cent. Dig. 88 90-94; Cent. Dig. § 26.*] see Perjury, 2. PERJURY (8 26*)-INFORMATION-SUFFICIENCY-KNOWLEDGE OF FALSITY OF TESTIMONY.

But, while the courts are uniform in holding that a bank cannot recover under the An information for perjury sufficiently alcircumstances cited, they are not agreed up- leges accused's knowledge of the falsity of his testimony, where it charges that he knowingon the principle upon which the rule pro-ly and falsely testified to certain facts, and hibiting a recovery rests. Some of them, it that he knew of each particular fact alleged will be observed, put it on the ground of to negative the truth of his testimony. want of privity between the holder of the check and the bank; others upon the ground

that the payment is not a payment by mistake within the meaning of the rule that permits a recovery; others again on the ground that to permit the bank to repudiate the payment would destroy the certainty that must pertain to commercial transactions of this sort if they are to remain useful to the business public. To our minds the latter reason is the most satisfactory. If, for example, a merchant conducting a retail business must hold the money he receives from the bank in payment of checks and drafts, taken in by him from his customers in payment for the purchase of goods, until such reasonable time as the bank has to determine whether or not it will call upon him for a return of the money, it is manifest that he must discard the use of checks and drafts in the conduct of his business and require his customers to bring him cash. The uncertainty, delay, and annoyance such rule would cause him would forbid their use in his business.

[Ed. Note. For other cases, see Perjury, Cent. Dig. § 92; Dec. Dig. § 26.*] 3. CRIMINAL LAW ( 478*)-EXPERT OPINION

-WRITINGS.

Persons shown to be bankers and accountants with extended experience in dealing with notes and mortgages and in detecting irregularer figures raising the amount of a note and ities were qualified to give their opinion whethmortgage were written at a different time and under different circumstances than the other figures and words.

Law, Cent. Dig. §§ 1065, 1066; Dec. Dig. § [Ed. Note. For other cases, see Criminal 478.*1

4. CRIMINAL LAW (§ 478*)-EXPERTS QUALI

FICATIONS.

One can give an expert opinion on a subjeet concerning which he is shown to have peculiar skill and knowledge, gained by observation, personal experience, or study, not possessed by men ordinarily.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1065, 1066; Dec. Dig. § 478.*]

5. CRIMINAL LAW (§ 472*)—EXPERT TESTIMONY-SUBJECTS.

Whether certain figures and words affecting the amount of a note and mortgage were written at different times is a proper subject for expert testimony.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 1059; Dec. Dig. § 472.*] 6. CRIMINAL LAW (§ 469*)-EXPERT OPINIONS -ADMISSIBILITY-JUDICIAL DISCRETION.

Admission of expert testimony on a given where it is doubtful whether the subject of tessubject is discretionary with the trial judge, timony concerns the matter of peculiar knowledge.

[2] Concluding, as we do, that the bank cannot recover if the checks in question were recovered and paid by it in the ordinary course of business, it remains to inquire whether the special circumstances set out in the complaint relieve it from the rule. It is our opinion that they do not. The matters which are thought to relieve the bank of blame were of its own choosing. The holder of the checks in no way contributed to the mistake, and the fact that the bank officers were more liable to make a mistake at this particular time than some other may

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 1059; Dec. Dig. 469.*] 7. PERJURY (§ 34*)-EVIDENCE-SUFFICIENCY. A conviction of perjury is sustainable though there was no direct testimony of two witnesses to the perjury, where there was di

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