have furnished reasonably safe and suitable implements or appliances."

There is no merit in the claim that the instructions withdrew from the jury the question as to plaintiff's knowledge of any defect in the elbow, or of his assumption of the risk. We find no evidence even tending to show that plaintiff knew of any defect in the elbow, or that he assumed the risk of the danger from such defective elbow.

Other instructions are complained of, but it is sufficient to say that we have examined them, and find no prejudicial error in the giving or refusing of any instruction. The instructions as a whole fully and fairly stated the law to the jury applicable to the case.

The plaintiff testified that she was past fifty-one years of age; that her health was good. She was then asked, under the defendant's objection if she had ever been sick in her life. She answered, "Not since I was nine years old." It is now claimed that the court erred in permitting the question and the answer thereto. It seems to be conceded that the action being by a mother for the loss of her son, the evidence as to the health of plaintiff was material on the question as to her expectancy of life. We cannot say that the fact that plaintiff had not been ill since she was nine years old would not be a factor in determining her condition of health and her expectancy of life. There was no error in the ruling.

The witness Brightwell was permitted, under defendant's objection, to testify to a conversation he had with the deceased about five minutes before the accident; the testimony of the witness being given in answer to a question was as follows: "He said, 'I have a letter from some parties that we have met before, and I will let you read it after a while. I am going down to the engine-room to look after the engine. I will put in a liner,' or something to that effect. 'I am afraid they are running hot on the boys.'' Defendant moved to strike out from this answer all except the words, "I am going down to the engine-room." The court in ruling said, "That portion of the answer can stand that he was going down to the engine-room to look after some liner, or something to that effect. The rest will be stricken out." The objection is to that portion of the answer as to the fact that the witness was going "to look after the engine." There

is no objection to the portion of the answer in which deceased said he was going to the engine-room. The fact that he stated his object in going could not have injured the defendant. It will be presumed that he was going there in and about the business of the defendant. There is no contention that deceased was at a place where he should not have been on an independent mission of his own at the time he was injured. The ruling was not erroneous.

The witness Brightwell was asked in redirect examination the following question: "Did you ever know of an instance in your career as a steam pipe-fitter where an elbow was taken off a scrap pile where it had been lying for a year, and you didn't know how it got there or who took it off; in any such case did you ever know of an elbow being put on a steam line of the kind?" To this question the defendant objected on the ground that it was incompetent, irrelevant and immaterial and not redirect examination; calling for the conclusion of the witness. The court overruled the objection, and the witness answered: "I have never known of any occurrence of that kind." It is now claimed that the question and the answer were immaterial, and that the court erred in not sustaining defendant's objection thereto. The witness had testified, in answer to questions by defendant in cross-examination, that there are lots of such kind of elbows in use," and that "an old elbow which has stood the test is better than a new one"; and as to other matters in connection with getting the elbow from the scrap pile. The question was evidently asked for the purpose of showing the knowledge of the witness as to the use of old elbows, and of this particular one that was taken from the scrap pile. It was to some extent going over the matters to which the witness had already testified, but for the purpose evidently of obtaining a more full explanation of his knowledge as to the use of such old elbows. In such cases much is left to the discretion of the lower court as to allowing a question of this kind. It would have to be a plain abuse of such discretion in a case where improper testimony material to the issue was by this means brought out, that would justify us in interfering with the discretion of the trial court.

Many other rulings are excepted to and discussed in the briefs, but we have not deemed it necessary to consider them in detail. We have noticed those which we deem the most

plausible; and as we find no merit in them, we have not deemed it necessary to discuss the others.

The judgment and order are affirmed.

Hall, J., and Kerrigan, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on May 25, 1908.

INDEX.

ACCOUNT STATED.

1. AGENCY FOR DEFENDANT

WANT OF PRELIMINARY PROOF-SUPPLY

OF EVIDENCE HARMLESS RULING.-Where, in proving a cause of
action upon an account stated, it was objected that the account
was admitted in evidence without sufficient preliminary proof of the
agency of one who assumed to represent the defendant in agreeing
to the account, granting that the ruling was erroneous, it was with-
out prejudice, where proof that he was superintendent and gen-
eral manager of the defendant corporation was immediately sup-
plied by sufficient evidence. (Brady v. Ranch Mining Co., 182.)
2. ORDER OF Proof-DiscretION OF COURT.-The order of proof is
largely within the discretion of the trial court, and its action will
not be reviewed if no abuse of discretion appears. (Id.)

3. ACTION ON ASSIGNED CLAIM-STIPULATION-PROOF UNNECESSARY.—
In an action on an assigned claim, where it is stipulated and ad-
mitted by defendant at the trial that the amount sued upon for
this claim is the correct amount due, no proof is necessary on such
claim. (Id.)

4. ORDER FOR PAYMENT OF WHOLE FUND-EQUITABLE ASSIGNMENT.—
An order for the payment of money, which relates to the whole
amount of the fund in the hands of the one upon whom it is
drawn belonging to the drawer, operates as an equitable assign-
ment of the claim. (Id.)

5. PLEADING

INDEBTEDNESS-INSUFFICIENT DENIAL-WANT
OF IN-
FORMATION AND BELIEF.-The defendant must be held to know
whether he is indebted to the plaintiff or not, and his denial of
the indebtedness, based upon a want of information and belief,
raises no issue. (Id.)

6. TRIFLING SUM-MAXIM-SUPPORT OF FINDING.-Where a disputed
sum is comparatively trifling, the maxim "De minimis lex non
curat'' may be applied, though the evidence in support of it may
seem unsatisfactory to us; yet it is held that it cannot be said that
the evidence is insufficient to support a finding as to such sum.
(Id.)

ADVERSE POSSESSION.

1. ACTION TO QUIET TITLE-FORMER JUDGMENT IN EJECTMENT AD-
MISSIBLE IN REBUTTAL.-Where one of the defendants in an action

ADVERSE POSSESSION (Continued).

to quiet title relied upon a presumptive title by adverse possession. and denied knowledge of a prior ejectment suit, and also relied upon a prior tax title, the former judgment in the ejectment suit was admissible in rebuttal to show that she was a party defendant to the ejectment suit, and that the tax title relied upon was concluded by the judgment therein. (Nemo v. Farrington, 443.) 2. SUPPORT OF FINDINGS AGAINST ADVERSE POSSESSION.-Held, that the evidence is sufficient to support the findings against the adverse possession claimed in favor of such defendant, as against the plaintiff's grantor; and that plaintiff, since the date of his deed from such grantor, has been and is the owner in fee in possession and entitled to the possession of the property. (Id.)

3. CLAIM UNDER DEED DATE SPECIFIED REBUTTING EVIDENCEPRIOR DEATH OF GRANTOR-RECORDS OF ESTATE-TESTIMONY-FAILURE TO OBJECT.-Where a defendant claimed under a deed of a specified date, the records of the estate of the deceased grantor were admissible in rebuttal to show his death at that date, where not objected to as not the best evidence, and where the date of the death was also proved by the testimony of a witness, to which no objection was made. (Id.)

4. SUBSEQUENT DEED TO PLAINTIFF-COLOR OF TITLE CLAIM OF ADVERSE POSSESSION-ORDER OF PROOF IMMATERIAL.-The fact that a certain deed in defendant's chain of title had been executed prior to a deed from the same grantor to the plaintiff does not preclude the admission of such subsequent deed in evidence, in order to show color of title, in support of a claim of adverse possession in the plaintiff against the defendant. Any error in the order of such proof in rebuttal was without prejudice. (Id.)

See Easement, 9-13; Quieting Title.

AFFIDAVIT OF MERITS. See Judgment, 1, 5; Mortgage, 5.

AGENCY.

1. LEASE FOR A YEAR BY AGENTS-WRITTEN AUTHORITY REQUIRED.—A contract for a lease by agents of the owner to commence in future and to continue for one year, without written authority from the owner to make such lease, is void. (Goldstein v. Webster, 705.) 2. LICENSE TO AGENTS TO LEASE SUBJECT TO APPROVAL-APPROVAL WITHHELD VALID LEASE BY OWNER TO THIRD PARTY.-Where the owner granted a license to the agents to lease subject to approval, and the lease made by the agents was not approved, the license was thereby revoked, and a lease subsequently made by the owner to a third party was valid. (Id.)

3. FORCIBLE ENTRY AND DETAINER AGAINST OWNER BY LESSEE OF AGENTS-POSSESSION NOT TAKEN-NONSUIT.-Where no possession