Considering the relationship which undoubtedly existed between Eaton and the corporation, the action of Atkinson, the president of the corporation, in paying these demands, and the conversation he had with the respondent in regard to them, and the undisputed statement of the respondent in relation to the conversation that he had, concerning this employment, with Roberts, the secretary-treasurer of the corporation, we think the court rightly concluded that the corporation was a party interested in these lawsuits, and that it employed, or at least ratified the employment of, the respondent, and that it cannot now escape responsibility in that regard. The counsel cites 21 Am. & Eng. Enc. Law, p. 858, to the effect that "the power of the president of a corporation, as such, extends only to matters arising in the ordinary course of the company's business, and contracts made by him as to other matters are not binding on the corporation although made in its behalf." This, no doubt, is the general rule; but the next citation from the same author, at page 859, viz.: "In the nature of the case, no precise rules can be laid down as to the power of a president in respect to particular transactions, for this will be determined largely by the nature of the company's business and the other circumstances of the case"-is applicable here.

dently believed it was notwithstanding the | is no dispute that the respondent had the denial on the part of Eaton and Atkinson-conversation with Roberts that he claims to the corporation was interested in the legal have had, in relation to this employment. proceedings. The respondent testified: That Atkinson admits that he tore open the letter Eaton told him to go over and see Atkinson that was addressed to him, in relation to about the necessity of his going to the Su- this fee, and sat there and talked about preme Court in one of the cases. That he the cases with the respondent, and that the did go over and talked with Atkinson. That letter was addressed to J. M. E. Atkinson & Atkinson told him, if it was necessary, to go. Co. That he did go on with the case after such conversation. That he had talked with Mr. Roberts, a member of the corporation and its secretary-treasurer. That Roberts represented himself as the agent of the corporation in that particular transaction. That he had written a letter addressed to J. M. E. Atkinson & Co., asking for the payment of $100 on account, and the letter stated the title to the case in which he had rendered the service. That the order was approved by Mr. Eaton; he writing his O. K. on the margin of it. That after waiting a few days, and not hearing anything from it, he went down to the office of Atkinson & Co., and, when he got to the office, the check was there ready for him, signed "J. M. E. Atkinson & Co.," together with a letter handed to him. The letter was as follows: "We have for acknowledgment your favor of April 2d, and as requested therein take pleasure in handing you herewith our check for $100 on account of your service in case of Gould v. Knox, Gould v. White, Gould v. Stanton, and Gould v. Austin. Kindly acknowledge receipt, and oblige. Yours very truly, J. M. E. Atkinson & Co." That this letter was written on stationery of J. M. E. Atkinson & Co. That he had two or three conversations with Mr. Atkinson after that in relation to the business. That on another occasion he received another check, signed "J. M. E. Atkinson & Co.," and that this check was handed to him by Mr. Atkinson himself. That finally Atkinson refused to pay any more bills unless they were O. K.'d by Eaton, and that Eaton refused to 0. K. them. Mr. Eaton denied many of these statements alleged to have been made by him, and denied responsibility for the employment, but would not deny that he was in the respondent's office at the time the first letter was written to the corporation by the respondent, simply contenting himself with saying that he "could not say;" but admitted that he O. K.'d a demand or request for payment of that money by the respondent, and, when asked if he did not know that that request was addressed to J. M. E. Atkinson & Co., he replied, "It may have been, I could not say," and made the same reply to the question propounded to him in relation to the second request for $100 addressed to J. M. E. Atkinson & Co.; admitting, also, that he O. K.'d that order or request, knowing that it was addressed to the corporation. There For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

Applying this principle of the law to the facts shown by the testimony, we think the judgment of the court was right, and it wil! therefore be affirmed.

RUDKIN, C. J., and CROW, MOUNT, and PARKER, JJ., concur.

=

(55 Wash, 615)

GALENA NAT. BANK v. RIPLEY. (Supreme Court of Washington. Nov. 12, 1909.)

1. APPEAL AND ERROR (§ 979*)-REVIEW-DISCRETION-NEW TRIAL.

The rule that an order granting a new trial cannot be reversed except for an abuse of discretion does not apply when the entire record shows that the evidence necessarily and without conflict sustains the verdict or the finding of the trial court.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3871; Dec. Dig. § 979.*] 2. NEW TRIAL (§ 104*)-NEWLY DISCOVERED EVIDENCE-CUMULATIVE.

Where, in an action by a bank on notes given to it, the bank showed that the notes were given in consideration of the bank forbear

ing from pressing a valid claim against the estate of the maker's father, based on the father's defalcation as an officer of the bank, and the maker testified that the notes were given to accommodate the bank before the arrival of a bank examiner, the court after ordering judgment for plaintiff could not grant a new trial on the ground of newly discovered evidence, based on a letter from the bank requesting the execution of the notes so that the same could be entered on the books, as the bank examiner might come at any time, as the letter was cumulative only.

[Ed. Note.-For other cases, see New Trial, Cent. Dig. §§ 218-220; Dec. Dig. § 104.*] 3. BILLS AND NOTES (§ 92*)-CONSIDERATION -FORBEARANCE.

A forbearance by a bank to press its valid claim against the estate of a deceased officer for his defalcation is a sufficient consideration for a note for the amount of the defalcation executed by the officer's son.

[Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. § 205; Dec. Dig. § 92.*]

Department 2. Appeal from Superior Court, King County; R. B. Albertson, Judge.

Action by the Galena National Bank against E. Ripley. From an order granting a new trial after the ordering of a judgment for plaintiff, the latter appeals. Reversed and remanded.

Chas. E. Congleton and Milo A. Root, for appellant. Byers & Byers, for respondent.

CROW, J. This action was commenced by the Galena National Bank, a corporation, against D. Ripley, to recover the amount claimed to be due on three promissory notes. On trial without a jury the court ordered judgment in favor of the plaintiff. Thereupon the defendant filed a motion for a new trial, which was sustained, and the plaintiff has appealed from the order granting the new trial.

the respondent alleged in his answer that his father left an estate and offered to show on the trial that it was sufficient in amount to have paid the defalcation. The appellant claims that, as a consideration for the notes, it agreed to, and did forbear and refrain from making any claim against the estate or giving publicity to the defalcation, doing so at the respondent's request. The respondent

in his evidence admits the execution of the notes, and that he made the partial payments above mentioned, but insists that the notes were given without any valid consideration, that the appellant did not agree to release his father's estate, and that the notes were given for the accommodation of the appellant only, so that they might be used by it to satisfy the bank examiner who was about to examine and check up the bank. The respondent further testified that he was a single man when the original notes were given, that he has since married, and that the indebtedness, if valid, is his separate obligation. The trial judge announced his decision in favor of the appellant bank for the full amount of its claim, and adjudged the same to be the respondent's separate debt. Thereupon the respondent moved for a new trial on the following grounds: (1) Newly discovered evidence; (2) insufficiency of the evidence; and (3) error of law occurring at the trial.

In granting a new trial the trial judge made and entered a written order, in which he, in substance, stated that, after having considered an additional letter produced as newly discovered evidence, and after reconsidering the evidence submitted on the trial, he failed to find sufficient evidence of an alleged agreement on the part of the appellant not to present any claim against the estate of the deceased father, or give publicity to the defalcation, and that he granted a new trial upon the ground that the record failed to show any lawful consideration for the notes. The only newly discovered evidence was a letter from the cashier of the bank, the re

The complaint is in usual form, based upon three promissory notes executed by the respondent, who pleaded want of consideration. The evidence discloses the following facts: That respondent's father was for many years cashier of the appellant bank at Galena, Ill.; that shortly after his death in 1893 the bank discovered that he had appro-spondent had at the time of the trial and priated its funds to the amount of about $4,700; that it communicated this fact to his son, the respondent, then residing in Seattle, Wash.; that the son expressed a desire that the defalcation be kept quiet, and on October 7, 1893, executed and delivered his notes to the bank therefor; that the respondent has since made renewals, the last renewal being the notes pleaded in the complaint, which were executed on February 14, 1905; that respondent has at different times made payments on the notes to the amount of about $250; that the appellant took the notes for the debt of the father, and refrained from pressing any claim against his estate; and that the deceased left an estate the amount of which was not shown, although

could not then find, but which he did find immediately afterwards. The letter was written to respondent on September 18, 1903, and, after stating the amount of the defalcation, reads as follows: "What can you do? It must be fixed up soon. Examiners may drop in at any time. Will you give your note for 6 or 12 months int. 6 per cent. with what security you can, and send it now so it can be entered up and books made right, and come yourself later whenever you can get away. Anything I can do will do gladly. Attend to this at once, and oblige." The respondent contends: That the order granting a new trial should not be disturbed; that it was within the discretion of the trial judge; that no abuse of discretion has been shown;

that, considering the newly discovered evi- | wrote the letters and later executed the dence with the evidence previously produced, notes. In his letter of October 18, 1903, it becomes apparent that there never was transmitting the original notes to the appelany consideration, lawful or otherwise, for lant bank, he said: "I sign and inclose the the notes; and that the appellant's cashier notes herewith and will try to pay every dolBut you know took advantage of the respondent by prevail- lar in the specified time. ing upon him to execute the notes for the what a hard thing that is with limited resources. I forward this, with the understandsole purpose of satisfying the bank examiner. ing that this unhappy affair is known only to myself and you." The writing of this let-. ter, which was in evidence, is admitted by His claim that the notes the respondent.

The rule that an order granting a new trial cannot be reversed except for an abuse of discretion does not apply when the entire record shows that the evidence necessarily and without conflict sustains the verdict of the jury or finding of the trial court, that it admits of no other conclusion, and that there is no competent or material evidence to the contrary. The letter contains no newly discovered evidence, being cumulative only. On the trial the respondent testified that either that or some other similar letter had been mislaid by him and could not be found, and was permitted to state its contents. He testified as follows: "Q. State to the court what the contents of that letter was with reference to why these notes were to be giv-lor v. Clark (Tenn. Ch.) 35 S. W. 442. en? A. That the account was overdrawn, and that the bank examiner would be liable to be along at a short interval, and that he hadn't mentioned the matter to the directors. and wanted to know if I could do anything towards fixing it, and I said I didn't know what I could do, and asked him what the amount was and further particulars, to which he replied that it was something in the neighborhood of $4,700, and that he would suggest that it be put in the form of a note, so that the bank examiner wouldn't have any questions to ask him which might be embar-pellant's motion for a directed verdict or rassing, and that is the substance of it, and I signed the notes which he sent forward at that time." The fact that the cashier desired an adjustment of the shortage before the arrival of the bank examiner does not necessarily show an unlawful or invalid consid

were not to be paid by him is effectually dis[puted by it, and by his subsequent acts in making renewals and partial payments. The undisputed facts and circumstances of this case lead to the inevitable conclusion that the consideration for the notes was the forbearance of the bank from prosecuting or pressing its valid claim against the father's estate. Such forbearance upon its part constituted a good and valid consideration. Bissinger v. Lawson, 57 Miss. 36; Nowlin v. Wesson, 93 Ala. 509, 8 South. 800; Carpenter v. Page, 144 Mass. 315, 10 N. E. 853; Tay

The respondent earnestly insists that the evidence was conflicting; but we find no conflict of material or competent evidencé. He alleged in his answer and testified on the trial that the notes were without consideration; but such statements were his own conclusion from undisputed and proven facts which did not warrant any such conclusion. If a new trial were to be had either with or without a jury on the same evidence and the newly discovered letter, it would be the duty of the trial judge to sustain the ap

judgment in its favor, the respondent having utterly failed to sustain his defense of no consideration, and an order denying such motion would be reversed by this court on appeal.

The judgment is reversed, and the cause remanded, with instructions to deny the motion for a new trial.

eration. Such a desire was certainly business-like, and no improper motive can be inferred from the single fact that the cashier communicated it to the respondent and reRUDKIN, C. J., and MOUNT, PARKER, quested him to make a settlement of the de- and DUNBAR, JJ., concur. falcation by giving his notes. The newly

discovered letter adds no material fact to the case, nor does it sustain the respondent's contention that the notes were given without any valid consideration or for an invalid consideration. Respondent admitted that he did

not want his father's defalcation made public. He so stated in letters written to appel lant before and at the time of the execution of the original notes. The bank could only keep the matter quiet by refraining from making any claim against the father's estate thus releasing its claim, which it did. spondent must have contemplated this for bearance on the part of the bank when he

Re

(55 Wash. 521)

NORDSTROM v. SPOKANE & INLAND EM-
PIRE R. CO.

1.

Supreme Court of Washington. Nov. 5, 1909.)
MASTER AND SERVANT (§§ 101, 102, 155*)—
OBLIGATION OF MASTER - SAFE PLACE TO
WORK-SAFE APPLIANCES.

A master must furnish a servant with a reasonably safe place and appliances in and with which to work, and must exercise ordinary care to keep them so, and, where he knows of any 'atent danger which is unknown to the servant, he must apprise the servant of the existence thereof, and he must employ only such persons as

For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

3. MASTER AND SERVANT (§ 219*) — ASSUMP-acter, and so unlikely to happen that an ordiTION OF RISK.

dinary intelligence and knowledge of human | releases the master from liability from danaffairs. On October 24th, at about 6 in the gerous conditions or situations of which he evening, while with his fellow lineman, Mc- has no knowledge, or of which he could not Coy, he was sawing a lug, some of the parti- acquire knowledge in the exercise of ordinary cles of steel released in the sawing flew, or diligence on his part. Labatt states the rule were blown, into his right eye. He and thus: "A person is not answerable McCoy endeavored to remove them, but, be- at law for a failure to avert or avoid peril ing unsuccessful and plaintiff suffering pain, that could not have been foreseen by one in on the following day a trip was taken to like circumstances, and, in the exercise of Spokane and an oculist consulted. Plaintiff such care as would be characteristic of a was under treatment until December 15th, prudent person so situated, it is not negliwhen the right eye was removed, the oculist gence to fail to provide against an accident being unable to reduce the inflammation and of such a nature that nobody could have save the eye. Thereafter this action was foreseen it, and that no prudence could have commenced, resulting in the sustaining of a anticipated the need of guarding against." challenge to the sufficiency of the evidence 1 Labatt, Master & Servant, § 142. The rule and consequent dismissal. Error being al- has been recognized in this court, and is thus leged in the ruling of the court below in sus- succinctly stated in Daffron v. Laundry Comtaining this challenge, the case is brought pany, 41 Wash. 65, 82 Pac. 1089: here on appeal. The complaint avers the neg- Where an employer places a guard sufficient ligence of the defendant in (1) directing the to protect against all dangers reasonably to plaintiff to work in a dangerous place, with- | be anticipated, he is not guilty of negligence out notice or instruction as to the danger; because the guard fails to protect against (2) in failing to furnish a proper tower car so an unforeseen danger. "The proxias to raise the eyes of the lineman above the mate cause of appellant's injury was the iron insulator; (3) permitting plaintiff's co-em- dust, released by his own saw or that of his ployé to saw on the insulator opposite him fellow lineman McCoy, either being blown inand throw dust into his eyes; and (4) in to his eye by the wind or propelled and failing to supply plaintiff with glasses or thrown by the movement of the saw. It apgoggles. pears that this was a common happening. The linemen frequently assisted each other in removing this dust from their eyes. They talked about it while not at work. They apparently all knew about it, and realized the probability of its occurrence. It was then, in so far as it was a danger, an open, apparent, and obvious one. It was a danger naturally incident to the work being done. It was one of the usual and ordinary risks of of such employment, and, as such, fell within the character of risks assumed by the servant. It will not do for the servant to say that, while he knew the flying dust would enter his eye, he assumed it would only cause momentary discomfort or pain, or, at the most, necessitate a visit to an oculist. This is a plea of knowledge of the danger, but not of its consequences-a doctrine which the law does not recognize. A man might as well say he knew, if his hand came in contact with a moving saw, it would cause him pain and injury, but he did not realize it might cause the loss of his hand. Knowledge of a danger is in law knowledge of the injurious results naturally and proximately flowing from that danger.

The case is somewhat novel in the history of the manner in which the injury was inflicted; but, although the industry of counsel and our own research have failed to find a parallel case, we think it yields as readily to the well-known and recognized rules of law applicable to the relation of master and servant as if it was a matter of common occurrence. When the relation of master and servant is sustained, the law implies and fixes upon each certain duties and responsibilities which are reciprocal in their nature. These duties, in so far as they relate to the case before us, are that the master shall furnish the servant with a reasonably safe place in which to work, and shall take the precaution of an ordinarily prudent man in keeping the place reasonably safe. He shall furnish the servant with proper tools and appliances that are reasonably safe for the use required of them, and use ordinary care in so keeping them. He shall in case of any latent or hidden danger known to him and unknown to the servant apprise the servant of the existence of such danger and the possibilities of consequent injury, and he shall employ such only as have sufficient intelligence to comprehend the danger, if any, of the situation. Having thus acted, he has fulfilled his full duty to his servant, and the servant, in his turn, takes upon himself the obligation of using such care and precaution for his own safety as an ordinarily prudent man would use under like circumstances, and assumes the risk of injury from obvious and apparent dangers, and the same force of reasoning which holds the servant to assume the risk of only obvious and apparent dangers

Appellant is a man of ordinary intelligence, of some experience in sawmills, iron, or steel roller mills, and six years as a lineman working upon telephone, telegraph, and other electric current wires. It must be a matter of common knowledge to such a man that sawing iron lugs would create iron dust; that this iron dust would fly with the wind, or be thrown or forced by the movement of the saw; that flying dust would enter the eye if sufficiently near; that iron dust entering the eyes might result in an injury the