ing of cars with T-rails; and that the plaintiff voluntarily assumed the risk incident to such employment.

Defendant's counsel in his brief insists that the work of loading rails on cars standing still or moving was the proper work, if required, of sectionmen, and not unusual, and was in this case in consonance with the custom of defendant; that plaintiff entered defendant's employ with full knowledge of the services required, and the risk and danger of such work was readily discoverable by him; that the plaintiff did not exercise due care, did not look out for danger, nor try to guard himself from danger; that the injury to plaintiff did not result from any defect in defendant's cars or road, nor from incompetency of its employes, nor from its happening in the cut with the high bank on the side where the plaintiff worked. Defendant's counsel in his brief makes the proposition that the plaintiff assumed the ordinary risks of the service on entering defendant's employ. He also claims that the assistant road-master, who had the direction of the work, and who directed the moving of the train while the rails were being loaded, was a fellow-servant of the plaintiff. It is also claimed that Wahl, the assistant road-master, before ordering the quicker movement of the train, asked the men if they could not load with the train moving faster; that he spoke to the men generally, and none of them objected, but all acted as though they could; that this was taken as an assent to the faster moving of the train, and the men went right along with their work. It is also claimed by counsel for defendant that the plaintiff was guilty of contributory negligence; that in entering defendant's employ as a sectionman he assumed the ordinary risks of that service, and the men were especially warned by the assistant road-master, before commencing to load, for each man to look out for himself and avoid danger; that it was his duty, irrespective of this warning, to exercise due care against the danger readily discernible of this service; that plaintiff exercised no care; that he did not look out for danger, did not see the danger, nor apprehend it, and was utterly regardless of it.

We cannot agree with the contention of defendant's counsel. Whatever the claim made by the plaintiff under the testimony which was given upon the trial, and the facts which plaintiff offered to prove, but which were excluded by the court, we are satisfied that the case should have been submitted to the jury as to the negligence of the defendant in directing, by its agent, the plaintiff and these workmen to load these rails upon the moving train, and whether, by the manner in which the rails were directed to be loaded upon the moving train, it subjected the plaintiff to unnecessary danger. We think the requirement of the assistant road-master, that these rails should be loaded upon the train while moving, was unreasonable, as it required unreasonable exertion upon the part of the men, and, under the circumstances here stated, might be found by the jury to subject the

men to unnecessary danger. It is true that the defendant was not an insurer of the lives and limbs of the men engaged in that service, and that the plaintiff assumed the ordinary risks of the employment upon which he entered. But in the service of the railroad company as a sectionman, whose ordinary duties it is to repair the tracks and road-bed of defendant, he would not expect to be called upon to load rails upon a moving train. It appears to have been something unusual that section men were called upon to load these heavy steel rails upon flat-cars, and especially where the cars were moving at such a rate of speeed as four miles an hour, as stated by some of the witnesses in this case. The plaintiff assumed no risks except those which pertained to his employment and those which he understandingly assented to, and he had the right to assume that the danger was not increased by the manner in which the work was ordered to be done. It is a well-established rule that the employer must furnish a safe place for his employes to work, and safe appliances or tools with which to do the work. It is as well the master's duty to provide that the manner in which the work is being done shall be also safe, and, in all cases where the danger can be readily guarded against, the employer is in duty bound to protect the employe at his peril. Mr. Wahl, the assistant road-master, had full charge and direction of this gang of men; he stood in the place of the master; he was a man of years of experience in railroading. The plaintiff had hired as a sectionman, and had had no experience in railroading, and Wahl must have known that the manner in which these men were directed to do the work, in putting these heavy rails upon a moving train, was dangerous. The court below found it so dangerous from the circumstances shown upon the trial that he held that any person of ordinary prudence knows that there is danger of being injured while loading these rails upon a moving train. It is apparent, however, that the plaintiff, by reason of his inexperience, did not apprehend the danger to life and limb in the manner in which the work was being done. It is quite apparent from the record that the manner in which the defendant required this work to be done made it almost impossible to provide against the danger it created, or to give the plaintiff such notice of the approach of danger as to give him a chance to escape. The service required of the plaintiff was not in the ordinary line of a sectionman,—that is, sectionmen are not ordinarily called upon, as shown by the record, to load these heavy steel rails upon the moving train; and it therefore became, as we think, the duty of the court to have left the question of fact to the jury, under the circumstances, to determine whether the manner in which the work was being done subjected the plaintiff to unnecessary danger, and whether the plaintiff could, under the circumstances, have avoided it.

The court was also in error in refusing to permit the plaintiff to show how many of the men had previous experience, and

that the plaintiff had had no experience, how hard the work was, whether any of the men gave out before the accident, or whether plaintiff was in a position where he could see the rail before it hit him, or that the work was more dangerous in loading upon the moving cars than as though the cars were standing still. The judgment of the court below must be reversed, with costs, and a new trial ordered.

MCGRATH, J., did not sit. The other ustices concurred.

MEYER V. MONTGOMERY et al. (Supreme Court of Michigan. July 28, 1891.)

AGENCY-EVIDENCE OF-RECOUPMENT.

1. In an action for labor performed by plaintiff for a partnership, it appeared that the articles of partnership authorized one partner, who was a married woman, to appoint her husband as her agent, with all the powers that she might have exercised if the appointment had not been made. The husband employed plaintiff, and the firm paid him on account, honored his orders on them, and furnished him with teams for the work by direction of the husband. Held, that the evidence sufficiently established the husband's agency.

2. Where plaintiff was employed by defendants to haul their logs, he was not liable for costs and expenses incurred by them in defending unfounded claims for labor liens on the logs by third persons employed by plaintiff in the work; and it was proper to charge that, if plaintiff's failure to pay his men was due to the fault of defendants in not paying him, defendants could no set off such expenses in an action by plaintiff for his services.

Error to circuit court, Muskegon county; ALBERT DICKERMAN, Judge.

Action by Moses Meyer against A. S. Montgomery and others for labor. Ver. dict and judgment for plaintiff, and defend. ants bring error. Affirmed.

De Long & O'Hara, for appellants. Turner, Turner & Turner, for appellee.

MCGRATH, J. Defendants were copartners in the business of purchasing timber lands, logs, and other forest products, and the manufacture and sale of lumber, shingles, lath, etc. Plaintiff claims to have been employed by Jacob Hetz, the husband of the defendant Katherine Hetz, on behalf of the firm, in the fall of 1887, in hauling logs, cutting roads, making skidways, and skidding logs; that Hetz represented that these logs belonged to, and that the work was done for, defendants. Plaintiff claimed that the work done, at prices agreed upon, amounted to $1,175; that he had been paid by defendants about $500; that he had allowed for teams furnished to him by defendants for said work the sum of $400; and judgment was rendered for him for $326.28, being about the balance, with interest. The defendants claimed that certain of this work, for which plaintiff had charged, was done for Hetz individually, and not for the firm; that the firm had employed plaintiff to do certain work, but part of which had been done, and that they were entitled to recoup for damages sustained by reason of the non-performance of the work left undone; that defendants were

entitled to a credit for over $500 for the teams furnished by them to plaintiff; that, during the progress of the work by plaintiff, several suits were commenced against plaintiff, by persons claiming labor liens, and defendants' logs were attached, by reason whereof defendants were put to great expense in defending their property; that one of said suits was carried to this court, and in all of said suits the defendants in the present case succeeded.

The record presents 21 assignments of error, 14 of which depend upon the single question of the authority of Jacob Hetz to act for defendants. If Hetz had authority to employ plaintiff, defendants were bound by the hiring, and plaintiff was not liable for damages for discontinuing work, when directed to do so by Hetz. This question was fairly submitted to the jury, but defendants contend that there was no testimony tending to establish his agency. Defendants' articles of copartnership were introduced, and contain the following provision: "The said Katherine Hetz is hereby authorized to appoint Jacob Hetz as her agent, who shall have and exercise, with reference to the business and affairs of said firm, powers which, by this article, the said Katherine Hetz might and could exercise were said appointment not made; and it is understood and agreed that said appointment shall be made, and that said Jacob Hetz shall devote his time and service to the business of said firm, in lieu of the time and services of said Katherine Hetz." The articles contain certain restrictions upon the powers of the individual members, prohibiting certain transactions, but do not prohibit transactions of this nature. The firm paid to plaintiff all of the moneys received by him in the course of the work, honored all the orders drawn upon them, and, through Hetz, furnished teams for the work. There was abundant testimony tending to establish the agency of Jacob Hetz; indeed, he was clothed by the articles with the general authority of a partner.

The court instructed the jury that defendants could not set off or recoup their expenses in defending the lien suits, if the failure of plaintiff to pay his men was due to the fault of defendants, or grew out of the fact that defendants failed to pay plaintiff. There was no error in this instruction. In the absence of any express agreement, plaintiff was not liable for costs incurred by defendants in defending their own property from a claim of lien made by a third party, to which such third party had no legal right. Several errors are assigned upon exceptions taken to the admission of testimony, but the rulings of the court were correct. The judgment is affirmed, with costs. The other justices concurred.

FRASER et al. v. HAGGERTY. (Supreme Court of Michigan. July 28, 1891.) ASSUMPSIT-CONTRACT FOR SERVICES - EVIDENCE -INSTRUCTIONS.

1. In an action for professional services rendered by plaintiff, as attorney for defendant, plaintiff testified that defendant employed him to

ake charge of a pending suit, in the absence of her regular counsel; that he attended to it in court for several days; and that, a dispute arising as to his compensation, he withdrew from the case, but afterwards rendered services therein, on being told by the regular counsel that he was authorized to employ him at a stated per diem. Defendant testified that she never authorized such employment, and that she told plaintiff that she would not pay him if he did any further work in the case. Held, that it was not error to charge that, if defendant neither employed nor authorized the employment of plaintiff, there could be no recovery on an implied contract, if defendant told plaintiff she would not pay for his services, and that no promise to pay would, in that event, be implied from an acceptance of services afterwards.

2. Where an attorney testifies that his client authorized him to employ counsel to assist in the case, it is competent to show, as affecting his credibility, that he had agreed to conduct the case to a successful issue.

3. Plaintiff requested an instruction that, if defendant testified falsely in material particulars, specifying them, the jury might disregard her testimony entirely. Held, that it was properly modified by omitting the particulars named. LONG, J., dissenting.

Error to circuit court, Wayne county; GEORGE S. HOSMER, Judge.

Assumpsit by Elisha A. Gates and another against Elizabeth Haggerty for legal services. Verdict and judgment for defendant, and plaintiffs bring error. firmed.

Af

Fraser & Gates, in pro. per. Peter E. Park, for appellee.

MCGRATH, J. Plaintiffs, as copartners, sued defendant in assumpsit for legal services alleged to have been performed by Mr. Gates for defendant. The jury found for defendant, and plaintiffs appeal. Defendant was a party to two suits, pending on the chancery side of the Wayne circuit court, in which Sylvester Larned was her solicitor of record. Mr. Gates claimed that defendant came to his office November 26, 1886; told him that she had a suit coming on in the circuit, in which Col. Larned was her solicitor, and that he was out of the city; that she offered him $30 to assist Col. Larned to the end of that case; that he refused, but consented to appear in Col. Larned's absence; that he went into court on that day, and raised some objections, the argument upon which occupied most of the forenoon; that the objections were sustained, and the hearing adjourned to December 10th; that defendant went into court on December 10th, and Col. Larned came into court during the argument; that on that day defendant said that she wanted him to continue in the case; that afterwards, December 17th, a dispute arose, she insisting that his agreement was to assist Col. Larned for $30, and he denying that agreement; that he then retired from the case, and did not appear in court on the next day; that on the next evening Col. Larned telephoned him, saying that she had authorized him (Larned) to employ plaintiffs at the rate of $15 per day for what had been done, and for what was to be done; that he was consulted from time to time by her, and she was present from time to time in court, when he was engaged at the various hearings; that he

did a large amount of labor in that case, and performed other services in the other suit, and in other matters under the same arrangement; that in all be had performed 69 days of service in one case, and that his charges in that case according to the agreement amounted to $1476.90; that the amount of his bill in the other case was $368.60. Col. Larned was called as a witness for plaintiffs, and testified that he was defendant's solicitor of record in both cases, and that on December 17th defendant authorized him to employ Mr. Gates as counsel, at $15 per day for all the work which Gates had done, as well as all that he was to do. Other witnesses were called for plaintiffs as to the value of their services, and us to the presence of Mr. Gates in cases in question, and as to defendant's presence also. Defendant denies absolutely and unequivocally the em. ployment of plaintiff, or that she ever authorized Col. Larned to employ him, or that she had ever consulted with Gates, or authorized him to do any work, except that, in the absence of Col. Larned from the city, she called upon Gates, and asked him to act for her in Col. Larned's absence, and agreed to pay him $30 for so doing; that this was the first time she saw Gates; that after Larned's return she noticed Gates in court, and told him that their engagement was at an end, and that, if he did any further work in the case, she would not pay him for it; that she offered to pay him $30, and he declined to receive it, saying that he had done what he had out of courtesy to Col. Larned, in his absence; that afterwards she saw Gates in court, and she protested to Larned about Gates' presence, and Larned said to her, inasmuch as she did not have to pay Gates, she ought not to object; that she had employed Col. Larned to do the work in these cases, and to do all the work in them. The case went to the jury upon this testimony, and the jury found for defendant.

The first four assignments of error relate to the cross-examination of Mr. Larned respecting his employment by defendant; the execution of a written agreement between the witness and defendant at the time of his employment; and a second written agreement on December 17th; and he is asked to identify these agree. ments, and certain receipts and notes, which he does. It is insisted that these agreements did not bind plaintiffs, but, as bearing upon the weight and credibility to be given to the testimony of the witness, it was important to show just what the relations between the witness and defendant were, and whether or not the witness had not himself agreed to do the work in these cases. Defendant's counsel stated that he proposed to show that the witness had by these papers agreed to conduct the cases to a successful issue. The court excluded the instruments, and this is the only error which we can discover in this part of the record. It was certainly proper to show that on December 17th, the very day alluded to by both Larned and Gates as that upon which Larned had been authorized to employ Gates, and that Gates had been employed

by Larned, the latter had made an agree ment with defendant such as was claimed. Especially is this true in view of defendant's claim that Larned had afterwards assured her that the presence of Gates was due to his employment, not hers.

The next fige assignments of error relate to the admission of defendant's testimony as to conversations with Larned, and his agreement to try one of the cases for $50. On his cross-examination Mr. Larned had been asked regarding these conversations, and had denied them. Referring again to the contract between Col. Larned and defendant, counsel for defendant made the following statement: "I offer this contract in evidence for the purpose of showing that in this paper Col. Larned agreed to try this case to a successful issue." The court excluded it. Again counsel for defendant said: “I now offer it in evidence for the purpose of contradicting the statements made by Col. Larned." It was again excluded.

Counsel for defendant

then asked Col. Larned: "Question. Mr. Gates did the work in the Campbell-Strong case that you agreed to do, and received pay for it, didn't he?" The question was objected to, and excluded. Error is assigned upon these offers and question. Defendant's claim was that she had employed Col. Larned to do all the work necessary to be done in the conduct of this litigation; that, if plaintiffs were employed by Larned, it was to do that which she had employed Larned to do, and he, not she, had agreed to pay for it. Plaintiffs in their bill of particulars included items for “drafting lis pendens; drafting receipts for costs; drafting subpoenas; se curing signature of judge to decrees; drafting notice of settlement of decree; preparing bills of costs; drafting order pro confesso; copying papers; serving papers; attending court 12 times when cause was not reached, and attending taxation of costs; aggregating $335.50. These items are within the scope of the solicitor's duty in the conduct of a cause, and are not ordinarily classed as duties of counsel. Plaintiffs sought to show that in their employment Larned acted as agent for defendant. Under such circumstances, courts will ordinarily allow to a cross-examination a wide range. The offers and question were entirely proper, and the error was in their exclusion. All these circumstances bore upon the question of the credibility of the witness.

The other assignments of error relate to the court's instructions to the jury. The plaintiffs tried the case upon two theories: (1) An express contract, at the rate of $15 per day; and (2) an implied contract, growing out of the performance of the services by plaintiffs, the defendant's knowledge of Gates' presence in court, her consultations with him, and the receipt by her of the benefits of the work done. The jury were instructed substantially as requested by plaintiffs on both theories, except, however, that the court instructed the jury that, if defendant did not employ plaintiffs, and did not authorize Col. Larned to employ them, there could be no recovery upon any implied contract, if they found that defendant told Mr. Gates

that she would not pay for any services which plaintiff might render; that, if defendant "told Mr. Gates distinctly that she would not pay, the law would not imply from the acceptance of the services after that a promise to pay for them." There was no error in this instruction.

It is insisted upon the argument here that defendant did not claim to have notified Mr. Gates, until December 18th, that she would not pay for any further services, and that at that time plaintiffs had performed services amounting to about $250, but no testimony was offered as to the value of these particular services. Mr. Gates testified that, up to and including December 17th, he worked for defendant in court and office about 12 days. "Twice during that time she came to our office. Once she brought in some witnesses for me to examine, and once I prepared a subprena and 11 copies at her request. Our charges against her in this case during this time amounted to about $250." No severance was made upon the trial, and no separate request submitted by plaintiffs in relation to these services. Mr. Gates testified that defendant first asked him simply to act in the absence of Mr. Larned, but plaintiff denies that he agreed to do this for the sum of $30. Gates, however, claims that after Mr. Larned's return defendant asked him to stay in the case, and assist Col. Larned. This, however, defendant denies, and insists that the original agreement covered the services performed up to that date. Her testimony upon this point is as follows: "I says 'Mr. Gates, you were not to work in the case; I agreed to give you $30 to watch this case, in case it was left alone, as it was the first day; and, if so, have it adjourned, and notify me, that I could take care of my case.' I says: 'You are not to work in this case.' He said he knew that; and I says, 'Col. Larned was to try this case for $50;' and Col. Larned said he knew that, but he said there was going to be too much work in it, and h would not try it; and so I says to them -I says to Col. Larned, turning round: 'I will give you $15 a day for three days $45, in addition to the $50 that I agreed to give you to try this case,-$95 in all.' And I says to Mr. Gates: 'I was to give you $30 to watch the case. I will give you $10 a day for three days in addition, -$60 in all.' And Mr. Gates says, 'I have quit the case,' and left the court-room. My sons, John and Floyd, and Mr. Henry, and myself then went to Mr. Gates' office, and I asked Mr. Gates for the papers that Charles Larned and I had brought over there on November 26th, and he handed them to me. Says I, 'There was another among them, when he brought them here, -a mortgage.' He took it out of his desk, and handed it to me. Says I, ‘Has there been anything done on this mortgage?' He says, 'I have not looked at it.' Says I. 'Do I owe you anything on it?' Hesays, 'Nothing at all.' 'Now,' says I, 'Mr. Gates, how am I going to pay you that $30 that I agreed to pay you for watching this case through, in case it was left alone, to have it adjourned and notify me? Says he, 'You don't owe me anything.