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SLOSS, J. Appeal from a judgment in agreement proven. But we are cited to no favor of plaintiff in an action brought against case holding that, in the absence of fraud or the defendant as indorser of a promissory mistake, oral evidence may be introduced to note. The appeal was taken within 60 days, show that an indorsement "with recoʻirse" and the evidence is brought up in a bill of was intended by the parties to be "without exceptions.

recourse." The note. which is set out in full in the 4. The complaint alleges that interest was complaint, reads as follows: "$900.00. Los paid to August 18, 1904; that on the 3d of Angeles, California, Feby. 18th, 1904.

October, 1901, default having been made in before August 18th, 1905, after date and for the payment of the interest installment due value received, we jointly and severally prom- on September 18th, plaintiff elected to deise to pay to C. W. Hatch and E. E. Hatch, clare the whole sum of principal and unpaid or order, at Los Angeles, California, the interest immediately due and payable, and sum of nine hundred dollars, with interest on said 3d day of October, 1904, notified the from date until paid at the rate of 116 per makers of such election and presented the cent. per month, payable monthly. Should note for payment; and that plaintiff on the the interest not be so paid, it shall become a same day notified the defendant of his elecpart of the principal and thereafter bear like tion and of the nonpayment of the note. The interest as the principal. Should default last sentence of the note reads: "Principal

: be made in the payment of any installment and interest payable in gold coin of the United of interest when due, then the whole sum of States in sums of twenty-five dollars or more principal and interest shall become immedi- monthly, together with interest monthly.” The ately due and payable at the option of the italicized words are in writing; the rest of the holder of this note. Principal and interest note, with the exception of the names and payable in gold coin of the United States in figures, being printer!. It is urged that the sums of twenty-five dollars or, more monthly, provision quoted is in conflict with the protogether with interest monthly. E. M. Jen- vision allowing the principal sum to become nings. Mary S. Jennings." Indorsed: "With- due for default in payment of a monthly inout recourse on us. C. W. Hatch. E. E. stallment of interest, and that the note read Hatch." "Pay to the order of E. F. Kinsel, as a whole should be construed to provide with recourse to me. L. M. Ballou.”

merely for monthly payments of $25 for prin1. One of the defenses was that the defend- cipal and interest together, at least until the ant had indorsed the note without recourse 18th day of August, 1905. But we see no conto him, by simply signing his name below flict between the different clauses. The prothat of the prior indorsement without re- vision for the payment of $25, or more, was course, and that the words, "Pay to the order merely an option given to the makers whereby of E. F. Kinsel, with recourse to me." had, they were permitted, in advance of the maturafter the delivery of the note, been written ity of the note, to make partial payments on above his signature without his knowledge account of the principal. It did not limit or consent. The court found against this their obligation to pay the interest monthly, allegation, and there was ample evidence to nor did it destroy or modify the holder's right sustain the finding.

to declare the entire sum due when there 2. The defendant attacks the finding that should be a default in the payment of innotice of default had been given him; but terest. the complaint alleges the giving of such no- 5. It is argued that, since the unpaid intice, and the answer fails to deny it.

stallment of interest fell due on September 3. The answer alleges that at the time the 18th, demand should have been made on defendant transferred the note to plaintiff that day, and immediate notice given to deit was understood and agreed that the plain- fendant as indorser, in order to hold him. tiff should have no recourse to the defend- The demand was made, and the notice given, ant, should such note not be paid when due, on October 3d, and the contention is that and that plaintiff should rely solely upon the the delay of 15 days discharged the defendsecurity of a chattel mortgage by which the ant. Rauer v. Broder, 107 Cal. 282, 40 Pac. note was secured. The evidence fully sup- 430; Civ. Code, $ 3131, subd. 5. But this ports the findings of the court against such action was not brought to recover the interagreement, if it could be conceded that the est due on September 18th alone. Its purpose defendant was entitled to introduce evidence was to enforce the liability arising under of an oral understanding directly contro- the provision of the note that, in the event verting the terms of his written agreement. of default being made in the payment of any It is true that, as between himself and his installment of interest when due, "then the immediate indorsee, the indorser may some- whole sum of principal and interest shall times show that the indorsement was made become immediately due and payable at the merely for the purpose of transferring the option of the holder of this note.” This liainstrument. Allin v. Williams, 97 Cal. 403, bility did not arise until the latter exer32 Pac. 441; Kendall v. Parker, 103 Cal. 319, cised the option so given to him, and, as the 37 Pac. 401, 42 Am. St. Rep. 117. These were complaint alleges and the court finds, he cases dealing with a simple indorsement, exercised it on the 3d day of October. On which was not inconsistent with the verbal the same day he made his demand on the makers and gave notice to the indorser. Un- of the holder, for failure to pay the preceding der a clause of this kind, the holder is allowed installment. a reasonable time in which to determine 6. Mary S. Jenuings, one of the makers, whether or not he will exercise his option had died prior to maturity of the note, and and declare the principal of the note at once there had been no administration of her esdue and payable. IIewitt v. Dean, 91 Cal. tate. We need not here decide whether, as 617, 28 Pac. 93, 25 Am. St. Rep. 227; Fletcher to her, presentment was excused by these v. Dennison, 101 Cal. 292, 35 Pac. 368. Cross- facts. The court found that the plaintiff premore v. Page, 73 Cal, 213, 14 Pac. 787, 2 Am. sented the note for payment to the person St. Rep. 789, cited by appellant, declares noth- in charge of the hotel in which Mary S. Jening to the contrary. The court there said nings resided at the time of her death. The that “the holder was entitled to a reason- appellant attacks this finding. The only specable time to exercise his option." In that ification of insufficiency is that "no proof case the holder had permitted 7 months to was introduced as to who was in charge of elapse, and the court held that this was more the IIotel Wheeler"-a specification that is than a reasonable time. In Fletcher v. Denni

not sustained by the record, since the plainson, supra, a delay of 59 days was held not

tiff testified that he had presented the note to be unreasonable, as matter of law. Where

to Mrs. Pool, “who was in charge of the l'Iothe delay was 1.5 days, it certainly cannot

tel Wheeler." The complaint alleges that the be said that the trial court was not justi- | plaintiff had presented the note for payment fied in finding, as it impliedly found here,

at the place where Mary S. Jennings had her that the holder had acted with reasonable

place of business and her residence at the promptress, especially in view of the evi

time of her death, and that payment on bedence that prior installments of interest had

half of the said Mary S. Jennings was refusbeen paid on the 1st day of the month suc

ed. The defendant demurred on the ground ceeding the one in which they fell due.

of uncertainty, in that it did not appear to It is argued that the rule allowing a rea

whom the demand on Mary S. Jennings was sonable time for the exercise of the option deliveredl. We think the overruling of the has no application to the indorser of a note:

demurrer was proper. The name of the perthat as to him the option must be declared

son to whom presentment was made was a and the demand made on the very day the in- mere matter of evidence. But, even if there terest installment falls clue. But we see no may have been some want of certainty in the reason for this distinction. The indorser of a allegation, it was not of a character to injure negotiable instrument warrants, inter alia, the appellant. If, when the proof was made, that if the instrument is dishonored he will,

he was without evidence to meet it, and de"upon notice thereof duly given to him, pay sired time to procure such evidence, he the same with interest.” Civ. Code, $ 3116. should have asked for a continuance for that A negotiable instrument is dishonored when

purpose. it is not paid on presentment for that pur- 7. As a separate defense the answer alpose. Id. § 3141. The instrument must be leges that the makers of the note, at the presented on the day of its maturity. Id. time of its execution, executed and delivered § 3131, subd. 5. Notice of dishonor, when to the original payees, as security for the given otherwise than by mail, must be given note, a chattel mortgage of certain property, on the day of dishonor, or on the next busi

and that this mortgage was assigned and ness day thereafter. Id. § 3117. If given by transferred to the plaintiff with the note. It mail, it must be deposited in the post office

is further alleged that no proceedings to forein time for the first mail which closes after

close this mortgage have been taken by the noon on the first business day succeeding the

plaintiff. It is argued by the appellant that dishonor. Id. § 3148. In the present case, by reason of the existence of this mortgage the principal sum was not due until the hold

the liability of the makers was not absolute, er had exercised his option to declare it

but was contingent upon a failure of the due. This be did on the 3d day of October,

mortgaged property to realize, on forecloand on the same day he made presentment

sure, an amount sufficient to pay the note, and gave notice of dishonor to the defendant. and that the indorsement of defendant imHe thereby complied with every step required posed upon him no greater liability than that to fix the liability of the indorser. If it be

of the original mortgagors. On those grounds said that an installment of interest was due

it is claimed that, so long as no sale of the on September 18th, and that as to this the

mortgaged property had taken place, the deholder could not delay presentment until fendant's obligation to pay had not become October 3d, and still hold the indorser, it

fixed. It is no doubt true that, so far as the may be answered that the judgment did not mortgagors themselves were concerned, an include any interest accruing up to September action to recover the amount of the note 18th. The amount recovered was the prin- could not have been maintained apart from cipal of the note, with interest from Septem- a foreclosure of the mortgage. As to them ber 18th. The interest accruing between the mortgaged property constituted a prisaid date and the 3d day of October, mary fund for the discharge of the debt, and became due, like the principal, at the option no personal judgment could have been en

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tered against them, unless after foreclosure, cases are directly in point, and establish the a deficiency had appeared. Code Civ. Proc. proposition that in this state the indorser of § 726; Bartlett v. Cottle, 63 Cal. 366; Porter a note secured by mortgage may be sued upv. Vuller, 6.5 Cal. 512, 1 Pac. 531; Bull v. ('oe, on his obligation without a foreclosure of 77 Cal. 31, 18 Pac. S08, 11 Am. St. Rep. 233; the mortgage. Barbieri v. Ramelli, 81 Cal. 151, 23 Pac. 1086. In what has been said in this opinion we But the defendant was not the mortgagor. ! have treated the contract of defendant as His contract of indorsement was collateral ! one of indorsement, and this is the aspect to the original obligation of the mortgagors, in which both parties have treated the case and was not secured by the mortgage. In / in their briefs. If, however, the defendants Vandewater v. JcRae, 27 Cal. 596, the court could be held to occupy the position of a said: “The mortgage given in this case was guarantor (the view taken by the District executed by the makers of the note, and the Court of Appeal, when the case was pending only personal liability secured by it, or in- : in that court) it would make no difference tended to be secured by it, was that of the in the result. "There is no privity, or mumakers of the note as such. * * * The tuality, or joint liability, between the prinpromise of the maker of a note is one thing, cipal debtor and his guarantor." The deand the promise of an indorser is another. fendant as guarantor, if he was such, made One is primary, and the other is secondary. an independent contract, upon which he was One is absolute; the other turns upon condi- liable without regard to foreclosure of the tions. Each may be secured by a separate mortgage as against the principal debtors.

! mortgage, or one mortgage may be so framed Adams v. Wallace, 119 Cal. 67, 51 Pac. 14. as to secure them both.

On the i The judgment is affirmed. ground, then, that the right which this ac

We concur: ANGELLOTTI, J.; SHAW, tion is brought to enforce is unsecured by mortgage, we consider that the plaintiff is


LAND, J. at liberty to pursue the defendants in personam on their contract of indorsement." Carver v. Steele, 116 Cal. 116, 47 Pac. 1007,

(47 Wash. 70) 58 Am. St. Rep. 1.50, was, like the present

SIIEA V. SEATTLE LUMBER CO. case, an action by the holder of a promissory. (Supreme Court of Washington. Sept. 6, 1907.) note against indorsers. The defendants re- 1. MASTER AND SERVANT-INJURIES TO SERVlied upon the plea that the note was secured


Where plaintiff objected to appliances furby mortgage and that the holder had failed

nished, and the foreman promised to give him to enforce and foreclose his mortgage. The something better, but requested plaintiff to concourt, holding that this was no defense, used tinue work until the substitute could be made.

defendant assumed all risk of danger arising the following language: “In general, unless

from plaintiff's careful use of the appliance for some agreement or special circumstance im

such reasonable time thereafter as might be poses diligence upon the creditor as a duty. necessary to provide the new tool. he does noti, by mere failure to pursue the [Exl. Yote. For cases in point, see Cent. Dig. person primarily liable, discharge the guar

vol. 31, Master and Servant, $$ 6:38-611.) antor, surety, or indorser, even though his 2. SAME-REASONABLE TIME-QU'ESTION FOR

JURY. passivity in this regard may result in bar

Where plaintiff continued to work for two ring his remely against the original debtor. days with an unsafe appliance after a safe apWhiting v. Clark. 17 (al. 407; Bull v. Coe, 77 pliance had been promised as soon as it could Cal. 51, 60, 18 Pac. SOS, 11 Am. St. Rep. 235.

be made, whether such period was an unrea

sonable time was for the jury. Accordingly the rule is that the creditor loses

3. SAME. no rights against the indorser, whose liabili- Where plaintiff was injured while using a ty has become fixed, by mere failure to en- stick kept near an edger in defendant's mill for

the purpose of cleaning away refuse under the force his lien against the property mortgage

machine plaintiff cannot be held negligent in ed for security for the debt. First Wat.

using the stick which was an unsafe appliance, Bank v. Wood, 71 N. Y. 403, 27 Am. Rep. 60; instead of procuring another of larger dimenHoover v. McCormick, 81 W’is. 213, JI X. W.

sions, in the absence of proof that a stick of

other dimensicns was suitable or could have been 505; Fuller v. Tomlinson, 38 Iowa, 111, 12 V.

used. W. 127; Co.ebrooke on Collateral Securities,

[El. Yote.-.For cases in point, see Cent. Dig. $ 241, and cases cited." The court goes on vol. 31. Master and Servant, $$ 72:3-712.) to say that, even though the failure to fore- 1. SAJE-METHOD OF WORK-STOPPING MAclose the mortgage may have barred a per


In an action for injuries to a servant, evisonal action against the mortgagor, this con

dence held to show that plaintiff was not neglisideration does not reach respondents' case. gent. Their contract to pay Montgomery was not TEd. Yote.-.For cases in point, see Cent. Dig. the same as that of Staples (the mortgagor).

vol. 31, Master and Servant, $$ 981-986.) “The promise of a maker of a note is one Appeal from Superior Court, King County; thing and the promise of an indorser is in- Boyd J. Tallman, Judge. other;' and their promise was not secured by Action by John Shea against the Seattle the mortgage held by Montgomery. Vanile- Lumber Company. From a judgment for


it water v. McRae, 27 Cal. 396, 003." These plaintiff, defendant appeals. Affirmed.

Richard S. Eskridge and Philip Tindall, , balance; that his fingers were thrown in confor appellant. Martin J. Lund and Vince H. tact with the unguarded saws; that his left Faben, for respondent.

arm was drawn under the machine, and so

severely injured as to necessitate amputation CROW, J. This action was brought by

about four inches below the shoulder. AlJohn Shea against the Seattle Lumber Com

though it is insisted that the appellant was pany, a corporation, to recover damages for negligent in having failed to properly safepersonal injuries. From a judgment for

guard the saws at the back of edger, we will $8,000 in favor of the plaintiff, the defendant

only consider the respondent's contention has appealed.

that appellant's negligence also consisted in The appellant contends that the trial court

its failure to provide him with safe applianerred (1) in refusing to take the case from

ces for his work. Ile insists that the use of the jury and enter judgment at the close of

a wooden stick was hazardous, unsafe, and respondent's evidence, and again at the close

dangerous. The work of cleaning the chute of all the evidence; (2) in denying the appel

had been required of the respondent but a lant's motion for judgment notwithstanding

short time prior to the accident. He had prethe verdict; and (3) in denying appellant's viously seen other employés using the stick. motion for a new. trial. The sole question He testified that, when he afterwards learned presented is whether the evidence sustains

and appreciated the unnecessary hazard to the verdict and judgment. In passing on this

In passing on this which he was subjected by its use, he would question, we must consider the evidence in

not have continued the work but for his relithe light most favorable to the respondent. auce upon the foreman's promise to provide The facts thus disclosed show: That the re- him with a safe appliance. He further testi. spondent had for two years been an employé fied that the foreman had repeatedly seen in appellant's lumber and shingle mill in the

him and other employés using a stick, but in. city of Seattle. In the mill was a certain

terposed no objection. The foreman denied edger machine provided with seven or eight

that the respondent asked him for an iron circular saws, which were mounted on an

rod or that he promised one. An iron rod axle or arbor. In front and to the rear were

was provided immediately after the accident, rollers used to convey lumber to the saws.

either the same evening, or early the next Beneath the edger was a chute for sawdust, morning. Appellant's president and manager splinters, bark, and other refuse. In the

testified that he, without request from any lower portion of the chute was a grating person, ordered this iron rod after the accithrough which sawdust and the smaller par-dent. The jury in response to a special inticles of refuse passed. The grating and

terrogatory affirmatively found that the forechute sometimes became clogged, and it then

man did prior to the accident promise rebecame the duty of some employé to clear it

spondent to provide the iron rod. It is eleby pushing down the refuse material. Prior

mentary law that it is the duty of a master to the accident, a wooden stick about 10 to 12

to provide his servant with reasonably safe feet in length was used for this purpose. The

machinery, tools, and appliances with which saws were guarded at the top and front of

to perform the work required of him, and to the edger, but back of the saws and below the

also keep the same in reasonably safe conarbor and rear roller was an opening about dition. Whether the stick used met this re12 inches wide extending across the full

quirement was a question of fact to be subwidth of the machine. In cleaning the chute

mitted to the jury. an employé would shove a long stick into

It is contended by the appellant that the this opening, and by its use clear away the

respondent had just as much knowledge of refuse. This had to be done frequently as the fact that the stick was a dangerous and conditions required. The respondent Shea

unsafe appliance as had the master, and that had for some time been in charge of certain

the respondent therefore assumed the risk of levers near the edgers, but not connected

all dangers which might result from its use. therewith. His evidence shows that the ap- This would be true, had the respondent conpellant's foreman shortly before the accident tinued its use without objection or complaint, instructed him to clean the chute when clog. after he actually appreciated the danger, but ged; that a wooden stick of 1 by 2 in- he only did so for a reasonable time while ches, about 10 or 12 feet long, was provided | relying on the promise of the master. After for his use; that a few days prior to the ac- appellant's foreman had made this promise, cident he broke the stick while using it; it assumed all risk of dangers arising from that he then realized its use was dangerous ; respondent's careful use of the unsafe applithat he immediately complained to the fore- ance during such reasonable time as might man and requested him to provide a long thereafter be necessary to provide the iron iron rod in place of the stick; that the fore- rod. In Crooker v. Pacific Lounge & Matman promised to do so, but requested the re- tress Co., 29 Wash. 30, 38, 69 Pac. 359, this spondent to continue his work with the stick court quoted with approval the following lanuntil an iron rod could be made; that, rely- guage from section 215 of Shearman & Reding upon the foreman's promise, respondent field on Negligence: "There is no longer any continued using this stick, exercising the ut- doubt that, where a master has expressly most care: that within two days thereafter promised to repair a defect, the servant does the stick broke causing respondent to lose his not assume the risk of an injury caused

thereby within such a period of time after the promise as would be reasonably allowed for its performance, or, indeed, within any period which would not preclude all reasonable expectation that the promise might be kept. And the same principle applies to a case where the master promises to a seryant to discharge an incompetent fellow seryant, but fails to do so, and the former seryant is thereby injured, or where a servant, apprehending a particular danger, makes it known to the master, who assures bim that he will provide against it. Xor, indeed, is any express promise or assurance from the master necessary. It is sufficient if the servant may reasonably infer that the matter will be attended to."

This doctrine must be applied to the facts before us, and it was the province of the jury to determine whether the respondent continued work for an unreasonable time after the promise was made. The appellant, however, strenuously urges that the respondent is not entitled to recover as he was guilty of contributory negligence in the following particulars: (1) In using a stick one by two inches in size, or a stick of any inadequate size, when he realized that it was apt to break, and knew, as shown by the evidence, that pieces of suitable dimensions were readily available; (2) in doing his work in such a manner as to cause the stick to break, and throw his hand against the saw; and (3) in attempting to clean the chute without first having the edger stopped, or the saws moved out of the way. As to the first contention, there is evidence that respondent used a stick which was kept near the edger for that purpose. There is no affirmative showing that one of any other dimensions was suitable or could have been used. In the absence of some positive evidence that a larger stick could have been used, negligence arising from its nonuse will not be presumed. As to the second contention, respondent's evidence shows that he exercised the utmost caution in using the stick after the foreman's promise had been made, and there is no evidence in the record which would justify us in holding him negligent as a matter of law in this regard. The question as to whether his manner of using the stick after the foreman's promise was careful or reckless was one of fact for the jury.

The appellant's main contention seems to be that the respondent should have caused the edger to be stopped or the saws to be moved before he attempted to clean the chute. It insists there were two ways in which the work could have been done the one safe by stopping the edger or moving the saws, and the other unsafe by not stopping the edger or moving the saws—and that, as the respondent chose the latter method, he cannot recover. In support of this contention appellant cites Hoffman v. American Foundry Co., 18 Wash. 288, 51 Pac. 385; Johnson v. Anderson & Middleton Lumber Co., 31 Wash. 554, 72 Pac.

91 P.-40

107; Beltz v. American Mill Co., 37 Wash, 399, 79 Pac. 981; Hunter v. Washington Pipe, etc., Co., 43 Wash, 167, 86 Pac. 171; Laidley v. Musser Lumber Co. (Wash.) 88 Pac. 124. We do not regard any of these cases as applicable to the peculiar facts before us. all of them, except the Hoffman and Hunter Cases the injured plaintiff's had control of the machinery with the right and power to stop it. In none of the cases cited, except the Johnson Case, does it appear that any promise had been made similar to the one made to the respondent. In the Johnson Case, although the foreman had promised to fix the electric light, the plaintiff who had charge of the edger, with power to stop it, was shown to have been guilty of conduct which constituted contributory negligence as a matter of law, notwithstanding the promise made. The master's promise to provide safe appliances will not justify willful recklessness on the part of the servant. He must exercise reasonable caution while relying upon the promise and awaiting its fulfillment. The evidence here shows that the edger and saws were in the exclusive control of the edgerman, that they were not in the control of the respondent, and that it required three men to stop the edger. The evidence further indicates that the custom in appellant's mill was to clean the chute while the edger was running. It is not shown that the machinery was ever stopped, or that the saws were moved by respondent or any other employé, at any time in the history of the mill for the purpose of cleaning the chute. The fact that a long stick was provided indicates that it was to be used while the machinery was in motion. The foreman saw and permitted respondent to use the stick without stopping the edger or changing the saws, and even after the accident an iron bar was provided, showing that the appellant still intended to permit the cleaning of the chute without stopping the edger or moving the saws. The evidence discloses no rule of the mill for doing the work in any other manner. These facts clearly distinguish this case from those cited by the appellant. Courts do not hold plaintiffs guilty of contributory negligence as a matter of law unless the circumstances are such that reasonable men may not differ as to the existence of such contributory neg. ligence. The question of the existence or non-existence of contributory negligence upon the part of the respondent was under the evidence before us an issue of fact to be submitted to the jury.

The appellant further contends that the damages awarded are

are excessive. The respondent a young man 27 years of age, in good health, lost his left arm. We cannot hold that for such an injury the damages were excessive.

The judgment is affirmed.

, KIN, MOUNT, and DUXBAR, J., concur.

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