collars around the shaft, which prevented | coming in contact therewith will be concedthe shaft from slipping or moving out of ed. The fact that certain witnesses testiplace. The main shaft was of steel, about fied that the set screw could be plainly seen two inches in diameter, and at the time of from the ground when the shaft was revolvthe accident was revolving at the rate of 165 ing is not conclusive that the set screw was revolutions per minute. an obvious and open danger, of the existence of which the appellant, as a reasonably prudent person, is charged with notice. Appellant testified that he did not know of the existence of the set screw, and we think it was a question for the jury to say as to whether or not he should have known of its existence. Rippetoe v. Feely, 20 Idaho, 619, 119 Pac. 465. It appears that appellant received a general warning to be careful, but there is no evidence that he was warned of the existence of the set screw, or that he actually knew of its presence. It was shown by his cross-examination that he did not look to see whether or not there was a set screw protruding from the shaft or the collar. It must be conceded that appellant in this case was at least an invitee upon the premises of respondent corporation. Gagnon v. St. Maries L. & P. Co., 26 Idaho, 87, 141 Pac. 88. [2] In 19 Eng. Ruling Cases, p. 60, the rule relative to the duty resting upon the owner of premises who invites another to come thereon is stated as follows: "A person who invites another to come on his premises upon a business in which both are concerned is bound to take care that his premises and all appliances provided by the owner as incident to the use of his premises are safe for that other person to come upon and use them as required; or else to give due warning of any danger to be avoided. But where the stranger comes as a guest, or by a bare license, the owner of the premises is only bound to warn him of anything in the nature of a trap upon the premises." Indermaur v. Dames, 19 E. R. C. 64; Carleton v. Franconia Iron, etc., Co., 99 Mass. 216; Gustafsen v. Washburn, etc., Mfg. Co., 153 Mass. 468, 27 N. E. 179; Brosnan v. Sweetser, 127 Ind. 1, 26 N. E. 555; Montague v. Hanson, 38 Mont. 384, 99 Pac. 1063. [3] We are not directly concerned upon this appeal with the question as to whether or not the maintaining of the revolving shaft with the protruding unguarded set screw was negligence upon the part of the respondent so far as its own employés were concerned. The appellant was upon the premises for the purpose of performing a certain labor, being at the time an employé of an independent contractor. The question of negligence is directed toward the duty which respondent owed to the appellant under the circumstances. [4, 5] The question of contributory negligence would be affected by the question as to knowledge of the existence of the set screw. There is a substantial degree of difference between the danger incident to coming in contact with a revolving smooth steel shaft, and the danger of coming in contact with such a shaft containing a protruding unguarded set screw, where the shaft is revolving at the rate of speed as shown by the evidence in this case. It cannot be said as a matter of law that the appellant was guilty of contributory negligence in the absence of knowledge of the existence of the set Screw, or unless as a reasonably prudent person he should have known of its existGustafsen v. Washburn Mfg. Co., supra; Rollestone v. Cassirer, 3 Ga. App. 161, 59 S. E. 442; Columbia Box & Lumb. Co. v. Drown, 156 Fed. 459, 84 C. C. A. 269. ence. We conclude that it was error to take the case from the consideration of the jury. The judgment is reversed, and a new trial granted. Costs awarded to the appellant. BUDGE, C. J., and MORGAN, J., concur. (31 Idaho, 276) DOVER LUMBER CO. v. CASE et al. (No. 2939.) (Supreme Court of Idaho. Jan. 10, 1918.) 1. PLEADING 402-DEFECT IN COMPLAINTCURE BY BILL OF PARTICULARS. A defect in a complaint, by reason of which it is indefinite and uncertain, may be cured To the allegations of negligence in the by a bill of particulars. complaint, respondent interposed only gener-2. JUDGMENT 251(1)-RELIEF WITHIN IS al denials. Upon the pleadings in this case the allegations of negligence are admitted. But assuming that objections on account of the failure to deny specifically the allegations of the verified complaint have been waived in this case, we think that the evidence upon certain issues presented should have been submitted to the jury. Whether the respondent had been reasonably diligent to provide a safe place for the appellant to do his work, in view of the existence of the protruding set screw, was for the jury to decide. That a set screw protruding from a rapidly revolving shaft is dangerous to those SUES STATUTE. Under the provisions of section 4353, Rev. Codes, when an answer is filed, the court may grant any relief consistent with the case made by the complaint and embraced within the issues. The plain intention of that section is that, when the parties are once in court, all conflicting claims arising out of the subject-matter involved in the issues shall be settled. 3. DAMAGES 121-MEASURE OF DAMAGESBREACH OF CONTRACT. Where a contractor, after partial performance of a contract to cut timber and deliver logs, breaches the contract and refuses to finish the work, the measure of damage arising from such breach is the difference between the unpaid contract price and what it will reasonably cost to finish the work. 4. JURY 14(4)-RIGHT TO-FORECLOSURE OF | in order to settle and adjust certain differMORTGAGE -PERSONAL JUDGMENT. In an action to foreclose a mortgage, personal judgment for the amount due upon the claim secured by it may be rendered without the intervention of a jury. 5. JURY 13(16)-RIGHT TO JURY TRIALEQUITABLE ACTION-SET-OFF. A defendant who pleads a counterclaim in an equitable action is not entitled, as a matter of right, to a jury trial of the issues arising thereon. 6. APPEAL AND Error INVITED ERROR. versed therefor. 882(1)—REVERSAL AFTER-AC 7. CHATTEL MORTGAGES 18 ences which had arisen between them, an arbitration was had which resulted in an award in favor of respondent for advances made, over and above all offsets and counterclaims, in the sum of $21,868.10, which, together with interest thereon at the rate of 8 per cent. per annum from June 8, 1914, was due to respondent from Case; also that there remained to be logged, under the terms of the Contract, not less than 8,000,000 feet of tim Where appellant has invited an error, alleg-ber, together with much cedar products, and ed by him upon appeal to have been committed that respondent was damaged by reason of by the trial court, judgment will not be re- the failure of Case to perform the contract, according to its terms, in the sum of $12,000. Rose, H. Case, wife of Wm. B. Case, was made a party defendant, as were appellants Campbell, Arthurs, and Whitcomb, who were alleged to have liens upon the mortgaged property subsequent to that of respondent. Judgment was demanded against Case in the sums of money above set forth, together with attorney's fees and cost of suit, and foreclosure of the mortgages was prayed for. 8. MORTGAGES 15-INDEBTEDNESS. A debt for which a mortgage is given may consist in the faithful performance of a duty or obligation, resting upon the mortgagor, if it is capable of being reduced to a money value. Appeal from District Court, Bonner County; John M. Flynn, Judge. Action by the Dover Lumber Company against William B. Case and wife and others. Judgment for plaintiff, and defendants appeal. Modified and affirmed. E. W. Wheelan and Allen P. Asher, both of Sandpoint, for appellants. Hamblen & Gilbert, of Spokane, Wash., and Herman H. Taylor, of Sandpoint, for respondent. MORGAN, J. Respondent and appellant Wm. B. Case entered into two contracts which, for the purpose of this opinion, will be treated as one, by the terms whereof Case agreed to cut and deliver timber to respondent, and was to be paid $5.25 per thousand feet, board measure, for a portion of it, being logs to be cut from certain described lands. Respondent was to advance money to Case, not exceeding $40,000, to be used in preparing for and paying expenses of logging, which was to be repaid by retaining $1 earned by Case on each 1,000 feet of such logs delivered. A real estate mortgage was given to respondent by Case and his wife, to secure the sums advanced and to be advanced up to $40,000, and to secure the faithful performance of the contract. chattel mortgage was also given, upon certain property therein described and upon property thereafter to be acquired by Case and to be used in performing the work, to secure the payment of the indebtedness above mentioned. A It is alleged in the complaint that Case had failed and refused to complete the work and had abandoned it; that he was indebted to respondent for money advanced, and that, Appellants answered separately, denying that any part of the money alleged to be due was secured by either mortgage; alleging that the sums advanced to Case, under the contract, had been paid by him; that he had not breached the contract; attacking the legality of the award of the arbitrators; and alleging that respondent's cause of action was barred by the arbitration agreement. The appellants who held mortgages upon Case's property set forth the nature of their claims and prayed for foreclosure. Case filed a counterclaim, asking damages by reason of respondent's breach of an alleged agreement modifying the original contract. It appears that after respondent offered evidence of the arbitration and award the court ruled that it was not binding, and thereupon, by leave of court and pursuant to notice theretofore given of its intention so to do, respondent amended its complaint and alleged, in lieu of the allegation of an arbitration and award, that it advanced to Case, pursuant to the terms of the contract, over and above all credits due on account of logs delivered, the sum of $31,673.17. Appellants demurred to the amended complaint upon the ground, among others, that it was ambiguous and uncertain, in that it did not show what amount of money was advanced to Case and what the credits for delivery of logs amounted to. It is insisted that this was essential because, by the terms of the mortgages, there was no security given for money advanced in excess of $40,000, and that there was nothing in the complaint to indicate the advances up to that sum had not been paid. [1] Before the demurrers were argued a bill of particulars was served by respondent showing all the sums advanced by it and For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes the credits due to Case for logs delivered. v. Wray, 52 Ind. 578; King v. Nichols, 53 This rendered respondent's claim definite, Minn. 453, 55 N. W. 604; Newton v. Conand cured the uncertainty of the amended complaint. The court found that Case breached the contract, and that there was due to respondent from him, as a balance upon the sums advanced, under its terms and as damages by reason of his breach thereof $17,274.49, together with attorney's fees and costs, which was secured by the mortgages, and $20,835.61, payment of which was unsecured. It also made findings as to the priority of the mortgages and the amounts due upon the claims of appellants other than Case and wife. Judgment was entered accordingly, from which this appeal has been taken. solidated Con. Co., 184 Mich. 63, 150 N. W. 348; Sandy Valley, etc., Ry, Co. v. Hughes, 172 Ky. 65, 188 S. W. 894. While it was shown by the testimony of Case that from 1910 until 1913 the market value of tamarack and fir logs, which appear to be two of the varieties of timber embraced within the contract, delivered in the Clarksfork river at his landing, was about $5 per thousand feet, which is less than the amount of the contract price for delivering them, neither this fact nor anything else disclosed by the record will suffice to take the case out of the operation of the rule above stated. [4] Appellants next contend that the court erred in entering personal judgment against Case for the sums found to be due to respondent and secured by the mortgages; that, this being a suit in equity, a personal judgment could not be obtained, as such a judg [2] Appellants contend that the court erred in rendering judgment against Case for money advanced which was not secured by the mortgages. While it was respondent's theory that its entire claim was secured, it alleged and established a greater sum due from Casement can be had only at law. The case was than the trial court found was included in the mortgages, and the personal judgment is for the amount found to be due in excess of that secured. Construing section 4353, Rev. Codes, this court said, in Burke Land, etc., Co. v. Wells Fargo & Co., 7 Idaho, 42, 60 Pac. 87: * "Under the provisions of that section, when an answer is filed, as was done in the case at bar, the court may grant any relief consistent with the case made by the complaint, and embraced within the issues made, whether such relief be prayed for or not. The law of civil procedure in this state prohibits the splitting up of causes of action and a multiplicity of suits. A court of equity, having obtained jurisdiction of a cause for any purpose, may retain it for all purposes, and proceed to a determination of all of the matters in issue. * The plain intention of our law is that, when the parties are once in court, all conflicting claims shall be settled between them arising out of the subjectmatter involved in the issues." It was conceded that there remained to be logged, according to the contract, 8,000,000 feet of timber, and the court found respondent was damaged in the sum of $8,000 by reason of the failure of Case to complete the contract. The measure of damage adopted by the court was the cost, above the unpaid contract price, of logging the timber still remaining. The evidence was sufficient to sustain the finding that it would cost $8,000 in excess of that price to complete the contract; the question is whether or not the court adopted the correct measure of damage. [3] It may be said to be a general rule, subject, however, to exceptions in certain cases, that where there is a breach by the contractor of a contract to perform work, the measure of damage is the difference between the unpaid contract price and what it will reasonably cost to complete the work. 13 Cyc. 162; Lee v. Harris, 85 Conn. 212, 82 Atl. 186; American Surety Co. v. Lyons, 44 Tex. Civ. App. 150, 97 S. W. 1080; Taylor v. N. P. C. commenced to foreclose the mortgages and equity, having acquired jurisdiction for that purpose, will retain it and conclude all matters in controversy involved within the issues. Rees v. Gorham, 30 Idaho, 207, 164 Pac. 88. See, also, Downing v. Le Du, 82 Cal. 471, 23 Pac. 202; Connecticut Mut. L. Ins. Co. v. Cross, 18 Wis. 116; Van Valkenburgh v. Oldham, 12 Cal. App. 572, 108 Pac. 42; Coghlan v. Quartararo, 15 Cal. App. 662, 115 Pac. 664; Gresens v. Martin, 27 N. D. 231, 145 N. W. 823. It has been held in this state that where a party sues to foreclose a mortgage, which is found to be invalid, if he establishes the debt he may have judgment for the amount due. Jaeckel v. Pease, 6 Idaho, 131, 53 Pac. 399. [5] The next question presented is whether the court erred in denying a trial by jury of Case's counterclaim. It is said in 24 Cyc. pp. 126, 127: * In "The fact that defendant sets un a legal defense to an equitable cause of action does not change the character of the proceedings or entitle him to demand a jury trial. the absence of a statute a defendant who pleads a counterclaim in an equitable action is not entitled to a jury trial of the issues arising thereon, notwithstanding the cross-demand constitutes an independent cause of action upon which a separate action might have been brought and a jury trial demanded." In Johnson Service Co. v. Kruse, 121 Minn. 28, 140 N. W. 118, Ann. Cas. 1914C, 850, the law as above quoted was followed, and there is appended to that case an exhaustive note showing it to be supported by the great weight of authority. By an expression, which was obiter dictum, in Robertson v. Moore, 10 Idaho, 115, 77 Pac. 218, and again in Sandstrom v. Smith, 12 Idaho, 446, 86 Pac. 416, this court seems to have announced a contrary doctrine, and these cases, so far as they conflict with the rule above quoted, are here S. W. 927; Morton v. Williamson Bros., 72 [6] Appellants attack the finding of the trial court that the arbitration and award was not binding on the parties. The court so held because the statute relative to arbitration was not complied with. Appellants, in their answers, contended that the award was invalid, and all of them, except Campbell, expressly insisted upon the right to litigate, at the trial, all matters in dispute between respondent and Case arising out of the performance of the contract. If the action of the court was erroneous, which it does not appear to have been, the error was invited by appellants, and the judgment will not be reversed therefor. Knollin v. Jones, 7 Idaho, 466, 63 Pac. 638; Farmers' etc., Ditch Co. v. Nampa, etc., Irrigation District, 14 Idaho, 450, 94 Pac. 761; Gaskill v. Washington Wa-lowed in order that it be held valid, as ter Pw. Co., 17 Idaho, 128, 105 Pac. 51. [7] In the chattel mortgage, which was duly filed for record, it is recited that the mortgagors transfer to the mortgagee, for the purpose therein mentioned"all those certain goods and chattels of all kinds belonging to said Wm. B. Case, party of the first part, at this time or hereafter by him acquired, during the continuance of that certain contract, hereinbefore recited, and used or to be used in the carrying out of the said contract." Then follows a description of the land whereon the property was situated, and thereafter occurs a particular description of certain chattels which is followed by the general clause: "And all the camp outfit, horses and other personal property of the said Wm. B. Case, used or to be used, at present owned or hereafter to be acquired, in the operation of the said contract contemplated, or to be used therein; all of the rails, switches, turnouts, connections, branches, logging trucks and camp outfits at present own ed or to be hereafter acquired by the said Wm. B. Case used or to be used in said logging op erations." There was some personal property used by Case upon the work which he acquired, by purchase, after the execution and filing of respondent's mortgage, and which was thereafter mortgaged to appellants, other than Case and his wife, who had no actual knowledge of the existence of respondent's claim of lien. The court held that the mortgage of respondent attached to the after-acquired property, and that its lien was prior to those of appellants. It is urged that this was error; that the description was insufficient, in the absence of a transfer of possession to respondent, to incumber such after-acquired property as against subsequent mortgagees. Upon the question of the validity of a mortgage of after-acquired property the authorities are divided. 5 R. C. L. 403; Steel v. Ashenfelter, 40 Neb. 770, 59 N. W. 361, 42 Am. St. Rep. 694. It is said in 27 Cyc. 1040: The intention of the parties that the afteracquired property involved in this action should be covered by the mortgage and held as security for the debt is manifest from the language of the instrument. The great weight of authority supports the rule above quoted from Cyc., to the effect that such a mortgage is valid and binding upon the parties thereto and all others having notice of it. Section 3408, Rev. Codes, states the circumstances under which such a mortgage will be held void, and points the way which must be fol against creditors of the mortgagor and subsequent purchasers and incumbrancers of the property. It provides: "A mortgage of personal property is void as against creditors of the mortgagor and subsequent purchasers and incumbrancers of the property in good faith and for value, unless: First. It is accompanied by the affidavit of the mortgagor that it is made in good faith and without any design to hinder, delay, or defraud creditors. Second. It is acknowledged or proven, as grants of real estate, and the mortgage, or a true copy thereof, is filed for record with the county recorder of the county where such property is located and kept." It is not questioned that this section was complied with in all particulars. While the after-acquired property was not described with particularity as to quantity, quality, character, and kind, the general statements, above quoted, embrace all personal property owned by Case, and thereafter to be acquired by him, and used, or to be used, in carrying out the contract. The mortgage described the property to be acquired as well as it could be done, under the circumstances, by stating the place where it would be found and the use to which it would be put, and by particularly describing other like property to be found in the same place and used for the same purpose, and, when it was filed for record, was notice to appellants, who afterwards acquired mortgages upon the same chattels, and rendered their liens subsequent to that of respondent. [8] Appellants contend the court erred in holding the sum of $8,000, allowed respondent as damage for Case's breach of the contract, to be a lien upon the property described in the mortgages. Section 3388, Rev. Codes, defines a mortgage to be "a contract by which specific property is hypothecated for the performance of an act without the necessity of a change of possession," and it is well established that a debt, to secure which a mort"A mortgage may be made to cover future-ac- gage is given, may consist in the fulfillment quired property of the mortgagor, when an in- of a duty, or obligation, resting on the morttention to that effect clearly appears from the gagor, if it is capable of being reduced to a face of the instrument, and it will be enforced money value. 11 C. J. 448. That the real in equity against the mortgagor, and all others except purchasers for value without notice." estate mortgage was given to secure the Murray Co. v. Satterfield, 125 Ark. 85, 187 faithful performance of the contract by Case TION OF RISK-NEGLIGENCE OF EMPLOYER. An employé, in accepting employment, assumes the ordinary risks incident thereto, but not such as arise out of the negligence of the employer, unless they are known to him, or are of such a nature that by the exercise of ordinary care he would have known of them. 6. MASTER AND SERVANT 217(13)-ASSUMPTION OF RISK-DEFECTIVE APPLIANCES. An employé cannot be held to have assumed knew the defect existed, if he did not know a risk, due to defective appliance, although he of the existence of the danger arising from it. is made clear by its terms. That the chattelverdict for plaintiff is based exclude the possimortgage was not given for that purpose is bility that the injury resulted from a cause other than that relied upon for recovery. máde equally clear by its terms, although the contract contains a provision from which 5. MASTER AND SERVANT 203(1)—Assumpit might be inferred the parties intended it also for that purpose. If it was intended that the chattel mortgage secure the faithful performance of the contract, and that provision was omitted from it by mistake, no effort has been made to reform it. Therefore the decree must be so modified as to exclude the $8,000, above mentioned, from the sum found to be secured by the chattel mortgage. In this connection we will say appellants' contention that the question of respondent's damage should have been submitted to a jury is without merit, as, in order to foreclose the mortgage upon the real estate, it was necessary for the court to determine such damage. The case is remanded, with instructions to the trial court to modify its findings of fact, conclusions of law, and decree in accordance with this opinion, and, as so modified, the judgment and decree will stand affirmed. Costs upon appeal are awarded to appellants. BUDGE, C. J., and RICE, J., concur. Where it is sought to transfer a case from a state court to a federal court on the ground of diversity of citizenship between the plaintiff and one of two defendants, it being admitted no such diversity exists as to the other defendant, the contention being he was fraudulently made a party in order to defeat the right of removal, if the judge of the state court finds, from the allegations of the petition for removal and the uncontroverted facts alleged in the complaint, that the defendants appear to be jointly liable in the action, and that both are proper parties defendant thereto, jurisdiction of the case should be retained in the state court regardless of plaintiff's motive in suing the defendant with respect to whom diversity of citizenship does not exist. 2. REMOVAL OF CAUSES 29-DIVERSITY OF CITIZENSHIP-GROUND OF LIABILITY. Where it appears that the defendant, with respect to whom diversity of citizenship does not exist, was an employé of his codefendant, the fact that his liability is predicated upon nonfeasance, consisting of failure to discharge a duty arising from his employment, rather than misfeasance or malfeasance, is not material. 3. REMOVAL OF CAUSES 39-DIVERSITY OF CITIZENSHIP-NONSUIT. Where the plaintiff, in good faith, insists upon the joint liability of such defendants, but a nonsuit is granted in favor of the one with respect to whom diversity of citizenship does not exist, the other does not thereby become entitled to a removal, for the right is not contingent upon the aspect the case may assume on the facts developed at the trial. 4. NEGLIGENCE 134(11) ACTION FOR INJURY SUFFICIENCY OF EVIDENCE. In an action for damage for personal injury, it is not necessary that the facts upon which a Appeal from District Court, Nez Perce County; Edgar C. Steele, Judge. Action by James Sumey against the Craig Mountain Lumber Company, Limited. Judg ment for plaintiff, motion for new trial denied, and defendant appeals. Judgment and order affirmed. Danson, Williams & Danson, of Spokane, Wash., Chas. L. McDonald, of Lewiston, and George D. Lantz, of Spokane, Wash., for appellant. Geo. W. Tannahill and Miles S. Johnson, both of Lewiston, for respondent. MORGAN, J. Respondent, a citizen and resident of Idaho, instituted this action against appellant, a foreign corporation, to recover $2,995 damages for personal injuries received while working with a jammer, or derrick, used in hoisting logs. The action was brought under the provisions of the Em ployers' Liability Law, Sess. Laws 1909, p. 34, and the trial resulted in a judgment for respondent, for the amount claimed, which was reversed because the facts established did not bring the case within the scope of that act of the Legislature. Sumey v. Craig Mountain L. Co., 27 Idaho, 721, 152 Pac. 181. Thereafter the complaint was amended; J. J. Bair, a citizen and resident of Idaho, was joined with appellant, as a party defendant, and judgment in the sum of $25,000 was demanded. The second trial resulted in a nonsuit in favor of Bair, and in a judgment for $7,500 for respondent against appellant, from which, and from an order denying a motion for a new trial, this appeal has been taken. [1-3] Prior to filing its answer appellant petitioned for removal of the cause to the federal court, alleging that Bair had been made a party fraudulently, for the purpose of retaining jurisdiction in the state court. Upon consideration of the record, composed of the complaint and petition, the trial court denied the removal and retained jurisdiction. When the motion for nonsuit was granted in favor of Bair, the petition for removal was renewed by appellant, and was again denied. This action of the court is assigned as error. It is alleged in the complaint, among other things, that at the time he received his injuries |