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is held that the master has performed his full duty to the servant if he has furnished him with a safe car and appliances with which to do the work, and provided "a proper system and competent men for the inspection of cars after they were loaded and before they were to be used." In that case a brakeman was not allowed to recover against the company for an injury sustained from the car's being so loaded that the brake could not be used; and the decision is put upon the express ground that the loading of the car is the work of the employee, and any negligent omission in either loading or inspecting it is but the negligent method in which the co-employee of the brakeman performs his duty. It is manifest that the rule laid down in that case is not the one adopted by the trial judge. The distinction there made is ignored in the charge, and the duty of the company and the work of the employee are, by the charge, confounded as one. The jury are expressly told that the load is a part of the appliance which it is the duty of the company to furnish and inspect, and nowhere are they instructed that the negligent omission of the employees to inspect the load was not the negligence of the company, provided it furnished a proper system of inspection and competent men to carry it out.

It is urged on the part of the respondent that the Byrnes case is no longer the correct rule upon this subject. This claim, however, is not sustained by an examination of the cases relied upon. In the Ford Case (117 N. Y. 639) the same precise distinction is again made, and upon the second appeal (124 N. Y. 493), instead of being rejected, the distinction is practically recognized and affirmed. Upon the second trial, however, there had been put into the case the new fact that the defendant had never provided a proper system for the inspection of the loaded cars, and for this reason alone the plaintiff was then allowed to recover. Nowhere in that opinion is it intimated that a company which had provided a proper system of inspection, and competent men to make it, would be liable for their negligent omission to properly inspect a loaded car. So in the Redington Case (84 Hun, 231) the case really turned upon the omission of that company to furnish a proper system for the inspection of its loaded cars. Cases holding that a defective brake rod, or a defective stake for supporting loads, are an appliance which it is the duty of the company to furnish, are not to be confounded with

THIRD DEPARTMENT, MARCH TERM, 1898.

[Vol. 27. the load itself. The distinction taken in the Byrnes case has never been modified, and is an authority controlling this appeal.

Neither is the principle there involved a new departure from former rules. It is the clear duty of the master to at all times furnish the servant safe material with which to do the work required, so far as the exercise of reasonable care in selection and inspection can make them so. But the use of such material is necessarily the work of the servant. Whoever accepts service under the master does so with the knowledge that it is the servant, and not the master, who will cause any injury that may result from a careless use of the material so furnished. And so far as protection against such careless use is concerned, he can, in reason, expect no more from the master than that competent co-servants be employed, and a judicious system be adopted for carrying out the work. The car is furnished for the express purpose of being loaded and run over the road, and the brakeman is one of the employees, and the man who loads and inspects the loading is another whose duty it is to carry out that purpose. Each uses, within his own sphere, the car furnished by the master, and both are engaged in carrying out the purpose for which it is furnished. Surely the loading of the car was not an act "pertaining to the duty the master owes to his servants" any more than running it over the road was such an act; and, hence, within long-settled rules, the master is not liable for negligence in loading it. (Crispin v. Babbitt, 81 N. Y. 516; Slater v. Jewett, 85 id. 61; Flike Case, 53 id. 549; Fuller Case, 80 id. 46; Cullen v. Norton, 126 id. 1.)

It is further urged, upon the part of the respondent, that the defendant is shown to have been negligent, because it did not provide a proper system for the inspection of its loaded cars. Without discussing whether the rules which were shown to exist on that subject were or were not sufficient, a new trial must be granted because of the error in the charge above alluded to. That error is not cured, even though there were abundant evidence, in other respects, of defendant's negligence. Under the charge the jury may very well have based their verdict upon the theory that defendant was responsible for the negligent omission of its employees to properly inspect the loaded car at each of the stations through which it passed; and, therefore, we are not able to say that it ever passed

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upon any question concerning its rules and system of inspection. In fact, that question does not seem to have been left to the jury at all, and it is one which we are not now called upon to consider.

Without considering several other grounds of error claimed by the appellant, I conclude that the judgment must be reversed.

All concurred, except PUTNAM, J., not sitting.

Judgment and order reversed and a new trial granted, costs to abide the event.

HERMANN SCHMALTZ, Appellant, v. SMITH M. WEED, Respondent. An executory contract for the purchase of land and of a mortgage debt due the vendor- measure of damages for its breach.

A contract by the terms of which a prior lienor of premises, about to be sold on foreclosure, agrees with a subsequent lienor of the same premises that the former, if necessary, will bid the amount of his claim upon the sale and will convey his title and assign any judgment for a deficiency to the subsequent lienor, the latter agreeing to pay the prior lienor the amount of his judgment, costs, expenses of sale, taxes, etc., is more than a mere executory contract to purchase the land; it is also a sale of the debt of the prior lienor, and entitles him to recover, in an action upon the contract, not the measure of damages proper in case of a breach of an executory contract for the sale of land, viz., the difference between the actual value of the land and the contract price, but the entire contract price.

APPEAL by the plaintiff, Hermann Schmaltz, from a judgment of the Supreme Court in favor of the plaintiff for nominal damages only and in favor of the defendant for costs, entered in the office of the clerk of the county of Clinton on the 24th day of April, 1897, upon the decision of the court rendered after a trial at the Clinton Special Term, with notice of an intention to bring up for review upon such appeal an order entered in said clerk's office on the 12th day of April, 1897, granting the defendant an extra

allowance.

The action was brought to recover damages for an alleged breach of contract.

Charles M. Baker and John D. Teller, for the appellant.

T. F. Conway, for the respondent.

PARKER, P. J.:

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[Vol. 27.

If the contract upon which this action is brought is to be considered merely as one for the sale by plaintiff to defendant of the brewery property in question, at a price equal to the amount of his judgment and the liens prior thereto, it is probable that the rule of damages adopted by the trial court is the correct one. It seems to be settled that, upon the breach of an executory contract for the purchase of land, the measure of damages is the difference between the actual value of the premises and the contract price; and this is so, even when the breach is upon the part of the vendee and the vendor is the one who seeks to recover. The vendor may not, it seems, upon tender of performance on his part, recover in an action at law for the purchase price. He must either treat the contract as repudiated, and recover whatever actual damages he has sustained in an action for its breach, or he must, if he would insist on its performance, go into equity and procure a decree awarding to him the purchase price and the title to the vendee. (5 Am. & Eng. Ency. of Law, 28; Old Colony R. R. Co. v. Evans, 6 Gray [Mass.], 25 ; Cong. Beth Elohim v. Central Presb. Church, 10 Abb. [N. S.] 484, 494, 500; Wilson v. Holden, 16 Abb. Pr. 133; Van Brocklen V. Smeallie, 64 Hun, 467.)

But what are the relations of the parties to one another under the contract in question? At the time it was executed neither owned the premises. Each had a claim or lien against the same. The plaintiff's was prior to the defendant's, and the premises were about to be sold under its foreclosure. The substance of the undertaking is, that plaintiff will bid to the amount of his claim, if necessary, and that he will convey the title so obtained to the defendant, and also assign to him the judgment for deficiency remaining after the sale; and defendant, on his part, will pay to the plaintiff the full amount of his "present judgment and interest thereon, * * and the costs and expenses of said sale, including taxes, assessments and water rates, which are liens upon said premises at the time of said sale." Practically, the plaintiff sells to the defendant his claim and judgment against the property, and agrees to have such property sold and bid it off for defendant's benefit and at his expense. The provisions concerning the reduction of the prior liens to not more than $40,000, and the protection of the premises thereafter against

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a sale on foreclosure of any of such liens, and for keeping the premises thereafter insured, etc., are but measures taken to make good the $15,000 mortgage by which a portion of the purchase price was to be secured. By the terms of the contract, a credit of two years for $15,000 of the purchase price is given and the balance is to be paid in cash. These provisions as to reducing the liens to $40,000 and protecting the property against foreclosure, were of interest to the plaintiff only as they increased the security of the mortgage which he was to take.

Here are all the elements of a contract for the purchase and sale of plaintiff's judgment, based upon a clear legal consideration. The plaintiff has fully performed all the conditions of that contract on his part, and there is no reason apparent why he should not recover the purchase price thereof as soon as it becomes due.

It is true that, under the contract, plaintiff was required to bid only to the amount of his claim, and unless he did bid off the property, no purchase whatever was made; but that does not necessarily characterize the purchase as one of real estate only. It was nevertheless a contract for the sale of plaintiff's debt, coupled with the condition that it was not to be made in the event that such debt was practically discharged by some one who was willing to bid more than its amount in order to procure the property. If the plaintiff had tendered to defendant a deed of the premises, but had refused to assign the judgment, it is very clear that he would not have tendered performance of this contract on his part. And yet, if it was but a mere contract to convey to defendant the premises in question in the event that he thereafter purchased them, he would have fully performed it by the tender of such a deed. It is evident that it was plaintiff's debt which was the subject-matter of defendant's purchase, and I am sustained in this conclusion by the view of the transaction taken in the last defense set up in defendant's answer. It is there substantially set forth that it was the mortgage of $15,000 which defendant was purchasing and that, as soon as he discovered that it was not worth its face value, he repudiated all obligations under the contract.

Under this view of the contract, it is clear that the measure of damage allowed upon the trial was incorrect.

Defendant's liability is measured by the amount of the purchase