partner may furnish capital, and another experience in the business, and they may agree to share the profits and losses in a certain proportion. Such was this case. But there was also, in addition, an agreement by all the partners to contribute to the capital of the firm in a certain contingency. Each agreed to bring into the business as rapidly as practicable all money he might be able to control, and withdraw nothing except an amount necessary for the support of his family. To equalize the amounts thus contributed, interest was to be charged and allowed at the end of each business year at the rate of 8 per cent. per annum. If the business had proved profitable, Spicer would have had an interest in the capital as well as the profits of the firm. Although it did not prove profitable for some years before the bankruptcy proceedings were begun, there was always the chance of a turn in the tide, and therefore Spicer had an interest in the capital contributed by Estes, which could not be withdrawn without Spicer's consent. We are satisfied that the relations created by the articles of partnership were never terminated by mutual agreement between Estes and Spicer. After the business ceased to be profitable, Spicer was allowed to draw $125 monthly, but this did not operate to end the partnership and place Spicer on a salary. The allowance was to cover his expenses. It was a temporary expedient. As a salary, it would have been singularly small. One of the employés was getting $200 a month.

2. The next question is whether the claims of the appellees as individual creditors of Estes should be paid out of his individual estate in preference to the claims of the firm creditors. Doubtless the notes executed by the firm and indorsed by Estes were firm debts, as well as individual debts of Estes. But the holders had a right, if they preferred, to present them as claims against Estes individually. And they did so. The notes were originally purchased by the firm of Gartenlaub & Co., of Chicago, which sold them to the banks. Gartenlaub, who acted for the firm, was advised of the fact that Estes individually owned a large amount of real estate, and for that reason required his individual indorsement.

The present bankruptcy act provides:

"The net proceeds of the partnership property shall be appropriated to the payment of the partnership debts, and the net proceeds of the individual estate of each partner to the payment of his individual debts. Should any surplus remain of the property of any partner after paying his individual debts, such surplus shall be added to the partnership assets and be applied to the payment of the partnership debts." Section 5f, Act July 1, 1898, c. 541, 30 Stat. 548 [U. S. Comp. St. 1901, p. 3424].

This is a statutory statement of a general rule early adopted in England (Ex parte Crowder, 2 Vernon, 706), upon which subsequently an exception was ingrafted to the effect that firm creditors may share in the individual assets in competition with individual creditors, if there be no firm assets and no solvent partner. Lowell on Bank. § 125. Loveland, Bank. (2d Ed.) § 99. Recently, in Conrader v. Cohen, Trustee, 9 Am. Bankr. Rep. 619, 121 Fed. 801, 58 C. C. A. 249, the Circuit Court of Appeals of the Third Circuit sustained Judge Buffington (In re Conrader, 9 Am. Bankr. Rep. 85, 118 Fed. 676) in

applying this exception under the present bankruptcy act; but in the case of In re Wilcox (D. C.) 94 Fed. 84, Judge Lowell, in an opinion showing unusual research and learning, declined, under the present bankruptcy law, to recognize or apply the exception; holding that firm creditors are not entitled to receive dividends out of a partner's separate estate until his individual creditors have been paid in full, and this notwithstanding there are no partnership assets.

But we are not obliged to choose between these two views. In the present case there are partnership assets of a substantial character. Already a dividend of 15 per cent. has been paid out of them to the firm creditors. The case, therefore, is not one involving questions of law, so much as questions of fact, namely: Was there a partnership? Are there partnership assets? Is there an individual estate? And are the notes of the appellees claims against the individual estate? All these questions, as we read the record, are answered in the affirmative. The two largest pieces of property held by Estes separately were his residence and what is known as the "Indian Creek Farm." The proof is clear that he purchased each of these himself, with his own money, and for himself. They stood in his name, and were always regarded as his individual property. It is true that, in the statement he made out for Gartenlaub, he placed them among the assets of the firm as real estate. But he did so, as he explained, because he was the only solvent member of the firm, and he knew they were liable for the firm debts. In this sense only were they firm assets. Gartenlaub understood this, was advised of the fact that they were owned by Estes individually, and accordingly required his individual indorsement on the notes.

Apparently, reduced to a simple form, the contention of the appellants is that, because all the capital of the firm belonged to Estes, therefore all the capital of Estes belonged to the firm. This is a strange contention. A man may put all the capital a firm has into it, but it does not follow that he puts all the capital he has into it. Estes had other ventures than this mercantile business. He put into it what he saw fit, and, with the consent of his partners, he drew out considerable amounts. The record shows clearly what he put in, what he kept out, and what he drew out. His residence and the Indian Creek farm were never put in. They and all his individual estate should be applied first to the payment of his individual debts, as the court below held.

3. The final claim is made that Estes was indebted to the firm in a very large amount for money drawn out, and the court was asked to compel the collection of this from his individual estate for distribution among the firm creditors. In this way it was sought to convert the separate estate into firm assets, and distribute them pro rata among all the firm creditors, including the appellees. This claim was disposed of by the finding of the referee that it does not appear from the record that Estes "ever was or is indebted to the firm in any amount." In this connection the referee said:

"I find from the evidence before me that Z. N. Estes at the end of the first year of the partnership had put into the firm $128,821.30, and that from this period the amount to his credit varied, running up to $166,770.76 for a short

time in 1891, and then declining to $101,188.27 in 1898, and then gradually increasing until he had to his credit as capital in the firm on the date of the bankruptcy thereof, after charging him with all amounts of every kind withdrawn therefrom, the sum of $106,424.13; that the capital originally contributed by him was reduced only $22,397.17, and that the amounts necessary for the support of his family, which, as shown, he was entitled to withdraw from the firm, far exceeded this amount; that up to and including the year 1891 the firm was prosperous, and a large amount of profits was annually credited up to each one of the partners; that there was also interest, under the terms of the partnership articles, credited up to Z. N. Estes up to and including the year 1895, and that the amount of interest and profits thus credited up to him, and which he had a perfect right to withdraw from the firm, amounted up to September 30, 1895, the sum of $146,344.29; that from September 30, 1895, to September 30, 1901, being the period embracing the last six years of the business prior to the bankruptcy of said firm, no interest had been credited to Z. N. Estes; that during all this period he had more than $100,000 of capital in the firm, on which he was entitled to 8 per cent. interest under the partnership articles; that it thus appears he is entitled to a credit on this account. It will be seen that this capital has not been in any respect diminished. In other words, if this credit is placed to his account, the result will show him entitled to about $160,000 at the time of the bankruptcy of the firm. It appears affirmatively from the testimony that all sums drawn by each of the partners were drawn out by mutual consent; that each partner knew what the other partner was drawing out, and for the purpose for which it was being drawn; and that there never was any intention or expectation of calling for the return of any of these sums to the firm. It is clearly established by the proof that every dollar drawn out by Z. N. Estes was drawn out in good faith, for honest purposes, and with the full acquiescence and understanding of Mr. Spicer, and that not a dollar was ever drawn out for the purpose of injuring or defeating any partnership creditor. And it further appears affirmatively by the proof that from 1898 up to the bankruptcy of the firm, in October, 1901, Z. N. Estes, instead of reducing his capital, was gradually increasing the same, and this objection should be sustained. This claim is therefore disallowed."

This finding, affirmed by the court below, has our approval.
The judgment of the lower court is affirmed.

RICHMOND LOCOMOTIVE WORKS v. RAMSEY.

(Circuit Court of Appeals, Fourth Circuit. July 12, 1904.)

No. 508.

1. NEGLIGENCE-CONTRACTOR'S SERVANT-INJURIES-QUESTION For Jury. Plaintiff, a negro laborer, was employed by an independent contractor to tear down a wall in defendant's locomotive works during the making of the alterations therein, for which purpose plaintiff climbed on the third round of a ladder, with the width of the wall of the erecting shop of the defendant's works between him and the rail on which a movable crane was operated. Plaintiff reached across the wall and took hold of the rail, and in this position began throwing bricks from the wall, and while so engaged the crane was moved along the rail, crushing plaintiff's hand. At the time defendant's crane operator started the same, when it was about 50 feet distant from the plaintiff's hand, he looked along the track, and saw nothing to cause him to suspect danger to plaintiff, and, there was nothing in plaintiff's position to cause the operator to believe that plaintiff's hand, which was dark, was on the rail. Held, that such facts did not justify the submission of the case to the jury on the theory that defendant, after plaintiff had put himself in a position of danger, could, by exercise of reasonable care, have discovered the danger, and avoided the injury.

On Writ of Error to the Circuit Court of the United States for the Eastern District of Virginia.

C. V. Meredith and M. M. McGuire, for plaintiff in error.

John A. Lamb (H. A. Atkinson and R. T. Lacy, on the brief), for defendant in error.

Before GOFF, Circuit Judge, and BRAWLEY and MCDOWELL, District Judges.

MCDOWELL, District Judge. This was an action at law, brought by the defendant in error, who will be hereafter designated as the "plaintiff," for damages for personal injury, which resulted in a verdict and judgment in behalf of the plaintiff for $2,917.50. The Richmond Locomotive Works, to be hereafter designated as the "defendant," had some months previous to the accident to the plaintiff let to contract the work of tearing down certain parts of its building and erecting others in lieu thereof. The contractor sublet a part of the work to one Wilson, by whom the plaintiff was employed at the time of the accident. Wilson's men had been at work for some weeks, and the plaintiff, who had also been on the work previously, had been engaged for about a week prior to the accident. The work at which the plaintiff was engaged was in tearing down a brick wall of the old boiler house, which ran at right angles to the erecting shop. The drawing opposite shows the partially demolished brick wall which the plaintiff was tearing down, the ladder on which he was standing at the time, which is leaning against the western wall of the erecting shop, and one of the rails on which ran a crane, which was constantly used in the erecting shop. The crane tracks were about 600 feet in length, and some 39 feet apart. The man who operated the crane was in a cage suspended under the bridge or axle of the crane, on the far side of the erecting shop, and nearly under the more distant rail, with his head about 18 inches beneath the level of the rails. The crane was used for hoisting and carrying heavy machinery and materials from place to place in the erecting room.

On the morning of the accident, Cole, foreman of Wilson, the subcontractor, directed the plaintiff, a negro laborer 23 years old, to go up on the ladder and throw off the bricks composing the boiler house wall to be removed. The plaintiff ascended the ladder until he stood on the third round from the top. He then turned so that his face was towards his work, put his left hand over the crane rail, and, stooping forward and towards his right, commenced to pull out and throw down the bricks with his right hand. While he was in this position, the crane, which was moved slowly from the south (right side of drawing), ran over the plaintiff's hand, and injured it and his forearm to such an extent that the arm had to be amputated. The crane operator did not know of the plaintiff's position until after the injury. The plaintiff knew that the crane was frequently and almost constantly moved up and down the erecting room.

There is a conflict of testimony as to whether the ladder was put in the position shown in the drawing by the plaintiff under Cole's direction, or whether it had for some days been standing as shown. There

was some testimony for the plaintiff to the effect that Cole, when directing the plaintiff to tear down the wall, told him that the crane would not be operated. This is denied by Cole. There is no evidence that Cole, if he made this statement, had been authorized to make it by any person representing the defendant, or that this statement, if made, was heard by any one representing the defendant. The contract made by the defendant with the contractor provided that the contractor's work should be so carried on as not to interrupt the work of the defendant. And the defendant's work in the erecting shop was being carried on at