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title. The last-mentioned lease contained a condition subsequent that the lessees should maintain upon the demised premises during the entire term of the lease a roller flouring mill of a specified capacity, and, as security for the performance of that condition, a provision for a reverter to the town in case of its breach was inserted.

The lease having been first made to the Canning Company was, even after the second lease had been given to Schultz and Jones, colloquially referred to as the "Canning Company lease.” In the conveyance to Adams made by the Manufacturing Company there was a general warranty of title with a saving clause as follows:

"Saving and excepting only the right of reversion after the expiration of said lease of ninety-nine years and the vendor's lien herein reserved."

The "said lease" there referred to was in the fore part of the deed described as the 99-year lease under which the Canning Company had occupied the premises. Adams, who held by mesne conveyances through the Manufacturing Company, under the Schultz and Jones lease, was ousted by the town for breach of the condition requiring the maintenance of the flouring mill and sued his grantor, the Manufacturing Company, on its covenant of warranty for damages. In the trial of that action the defendant was confronted with the fact that the saving clause in its covenant of warranty did not except the right of reversion reserved in the Schultz and Jones lease. Thereupon this suit was instituted by it to stay further prosecution of the action at law and reform the deed so as to make it except from the warranty the right of reversion contained in the last-mentioned lease, on the alleged ground that the language of the saving clause was a mistake and did not express the intention of the parties.

No right of reversion was reserved in the Canning Company lease and the exception of that supposed right from the operation of the warranty in the Adams deed was meaningless. There was no right of reversion except that specified in the Schultz and Jones lease to which the saving clause could by any possibility apply. The parties to the Adams deed, therefore, must have intended to except from the covenant of warranty the right of reversion reserved in the last-mentioned lease. The failure of the scrivener to accurately express the true intent of the parties undoubtedly arose from the commonly accepted colloquial name given to the lot which was the subject of the conveyance. We reformed a contract in the case of Assman v. Travelers' Ins. Co., 94 C. C. A. 58, 168 Fed. 694, upon a similar state of facts and should not hesitate to do so in this case were it not for certain facts which, in our opinion, deprive the Manufacturing Company of the right to equitable relief. To those facts we will now give attention.

E. H. Mathes, a lawyer practicing in the town of Ozark, had been the attorney for the Manufacturing Company in the proceedings which resulted in its acquisition of the Schultz and Jones lease, and subsequently became the agent of that company to make a sale of it. He conducted negotiations with Adams, who resided also at Ozark, which resulted in a sale of the property to him for $3,000, and afterwards prepared the deed for his principal to execute. This was sent by mail

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to Leavenworth, Kan., its place of business. The deed as prepared and sent to complainant contained the covenant of warranty and the saving clause as they now appear; and the complainant's officers upon its receipt executed it and returned it to Mathes for delivery to Adams. Some fault was found with the acknowledgment of the deed which necessitated its return to the complainant for correction. Upon receiving it the second time Mr. Samuel H. Wilson, then secretary and now president of the Manufacturing Company, who appears to have had the transaction in charge, read over the deed and according to his testimony was struck by the peculiarity of the covenant of warranty. He testified that he discussed the matter with his father, then president of the company, and that they declined to execute the deed until they were assured that it was mutually understood that the company was conveying only the title it had received from Schultz and Jones. He said:

"After receiving this assurance our fears were quieted and we executed the deed.

He further testified as follows: "When it (the deed] was returned to us with an objection, very naturally I read the whole instrument over in order to see just exactly what it was. I then raised the point with my father that I did not understand that clause, and we discussed the matter pro and con until we finally received assurance that the reversionary clause simply meant that we were conveying only the title that we secured from Schultz and Jones, and until this matter was mutually understood we did not execute the deed."

The substance of the whole matter is this: The attention of complainant's officers was attracted to the peculiar phraseology of the clause in question before they executed the deed to Adams. It stated in plain English that their company warranted title in Adams against all lawful claims except only the possibility of reversion supposed to have been contained in the Canning Company lease. That language necessarily implied that it warranted title in Adams against the assertion of the reversionary right actually reserved in the Schultz and Jones lease. In other words, with knowledge of the full meaning and import of the covenant now sought to be corrected they caused the deed to be executed and delivered, in reliance upon an assurance, contrary to the import of the terms employed, that it was mutually understood that the covenant of warranty did not mean what it said. On this state of facts we think there is no equity in the present bill. If an injustice is done it was invited by complainant. Neither mistake, fraud, nor accident brought it about.' Complainant's present dilemma is attributable to a misplaced confidence in the assurance received from its agent Mathes. It placed an unwarrantable reliance upon a verbal understanding to contravene the effect of a written contract. A little trouble and possibly a little expense would have protected it from all hazard.

Courts of equity will not relieve parties from the consequences of their own folly or assist them when their condition is attributable to a failure to exercise ordinary care for their own protection. Farnsworth v. Duffner, 142 U. S. 43, 12 Sup. Ct. 164, 35 L. Ed. 931; Burk v. Johnson, 76 C. C, A. 567, 146 Fed. 209, 215, 216; Betts v. Gunn,

31 Ala. 219; Roemer v. Conlon, 45 N. J. Eq. 234, 19 Atl. 664; Andrew v. Spurr, 8 Allen (Mass.) 412. The decree of the Circuit Court must be affirmed.

(Circuit Court of Appeals, Eighth Circuit. February 18, 1910.)

No. 3,029.


Plaintiff while working for defendant railroad company as a boiler maker was injured by a small piece of a flue which, while he was setting the flue in a boiler, broke off and struck him in the eye. He alleged that the injury resulted from the negligence of defendant in using in the boiler "old, worthless, and worn out flues" which were dangerous to work with. There were 220 flues in the boiler, some old and some new, and the only evidence tending to show whether the one by which plaintiff was injured was old or new and its condition was the testimony of a witness that he afterward took out some of the old ones, and that a small piece had been broken from the end of one of them. Held, that such evidence was too uncertain and inferential to sustain the allegation of the complaint as to the character and condition of the flue by which plaintiff was injured.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. 88 958, 959; Dec. Dig: $ 278.*] In Error to the Circuit Court of the United States for the District of North Dakota.

Action by Charles Johnson against the Great Northern Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

Arthur Le Sueur (C. J. Murphy and Fred S. Duggan, on the brief), for plaintiff in error.

Seth W. Richardson (William H. Barnett and Thomas E. Neary, on the brief), for defendant in error.

Before VAN DEVANTER, Circuit Judge, and CARLAND and POLLOCK, District Judges.

CARLAND, District Judge. This action was brought by Johnsor. against the railway company to recover damages for a personal injury received by him January 7, 1908, while in its employ at Minot, N. 'D., as a boiler maker. He recovered a verdict, and the railway company has removed the case here by writ of error. One of the errors assigned is the ruling of the trial court made at the close of all the evidence, refusing to direct a verdict for the railway company. It is claimed that this ruling was erroneous because there was no evidence that the railway company was negligent as alleged in the complaint. Johnson stated his cause of action as follows:

"That on the 7th day of January, 1908. this plaintiff, in the performance of said work and duties, as boiler maker for defendant, and under the instructions and orders of defendant, was performing work and duties in a boiler, *For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

known as shaping up the flues preparatory to having the same rolled with an instrument, known as a fue roller, in order to prevent the flues in the said boiler from leaking; that immediately prior thereto the said defendant had, through the work of other employés refitted the said boilers with flues, and in so doing had negligently and carelessly placed in said boiler old, worthless, and worn out flues, which were of such poor material by reason of their long use that they could not withstand the force used in the work done in so reshaping them,

well knowing that the said flues so placed in said boiler were of such defective and bad material, and that the same were exceedingly unsafe and dangerous to this plaintiff while he was so shaping same, and without warning to plaintiff ; that said plaintiff while so performing said work and duties in a careful, ordinary, and prudent manner, and without any negligence on his part in so shaping up said flues, struck the pin with which he was then attempting to shape said flue, and that said flue was of such poor quality as to be entirely unfit for the purpose for which it was used and to be exceedingly and extremely dangerous and unsafe to the plaintiff while so doing said work and duties, and, in so striking said pin necessarily in the performance of said work, the fue broke and a piece thereof flew striking said plaintiff in the left eye and inflicting in his left eyeball a cut, and thereby said left eye was permanently injured and the vision thereof entirely destroyed."

It was the duty of the railway company to use ordinary care to furnish reasonably safe appliances and materials with which Johnson might perform his work. The question for determination then is: Did the railway company violate this duty in the particular manner charged in the complaint, and if so was such violation of duty, the proximate cause of Johnson's injury? The only charge of negligence specified was the use by the railway company of “old, worthless, and worn out flues.” Taking that view of the evidence most favorable to Johnson and the following facts appear: At the time Johnson was injured he was engaged in the work of pinning a flue in the front end of a locomotive boiler. The pinning of a flue consists in driving into the end of a flue an iron pin for the purpose of expanding the flue so that its outer circumference will come in close contact with the flue sheet through which it passes and thus prevent the boiler from leaking around the flue. The end of the flue in question extended in front of the flue sheet from 12 to 34 of an inch. Johnson inserted the iron pin into the flue and struck the pin with a hammer, whereupon, a piece of the flue as large as a dime, heart shaped and of the thickness of the flue, broke off and struck him in the eye. The boiler in question had 202 flues. A short time prior to the date of the injury it had been reflued by a witness for Johnson by the name of Starr. One Collins was boiler maker foreman at the roundhouse. Starr testified as follows:

"Q. Prior to installing those flues, you may state whether you and Mr. Collins had any conversation relative to the Hues? A. Yes, we had a conversation. Q. What was that conversation? A. I brought his attention to the flues, and told him some of them I did not think were flues fit to put in the boiler. Q. In what way, Mr. Starr? A. Why the flues were old; they were very thin and light, soine of them; others were crystallized-holes in them. Q. What did Mr. Collins say? A. He told me to go ahead and put the flues in anyway and if we could not use them, we could rip them out and put others in. Q. And you did that, did you? A. Yes, sir. Q. Did you do any work on that boiler after Johnson was injured? A. Yes, sir. Q. Now what did you do? A. Why we took out some flues. Q. I wish you would state to the jurg what, if anything, you observed with reference to any one of those flues that you removed from the boiler after Johnson was hurt? A. Well I noticed that one of those flues had a piece broken out of it. Q. Now, then, with reference

to the flue that had the piece broken out of it, did you or did you not observe that before you removed the flue from the boiler? A. Yes, sir; before. Q. About how large was this piece? A. Oh, perhaps it was five eighths of an inch across it and perhaps that long, heart shaped like the bottom of a heart, not exactly wedge shaped. Q. Were those flues you put in that boiler before the accident old or new flues? A. Why they were nearly all old flues, I believe some were new, there were some good ones."

The fact that Johnson was injured, as alleged, as between him and the railway company was no evidence of negligence on the part of the

Patton v. Texas Pacific Railway Co., 179 U. S. 658, 21 Sup. Ct. 275, 45 L. Ed. 361. Conceding that there was evidence of negligence in the use, among other flues, of some which were old, thin, and crystallized, as testified by Starr. Still there was no evidence connecting this negligence with plaintiff's injury. The particular fue that caused the injury was in nowise identified except that one of the fues that Starr removed had a piece broken out of it similar to the one noticed by Johnson in the flue he was pinning. Neither Johnson nor Starr located with any definiteness in the boiler head the flue that caused the injury or the one taken out. On this small nick in the fue must rest the identity of the flue, and on the mere fact that Starr removed it from the boiler must rest the finding that it was old, worthless, and worn out. No reason is given for taking the flue out of the boiler, nor is there evidence of its condition when taken out or whether it was new or old. Johnson testified that although the fue extended in front of the flue sheet from one-half to three-quarters of an inch, he could not say and had no means of knowing whether the flue was an old one or not. No witness testifies that the flue from which the piece broke off was new or old. Starr testifies that there were new and old flues in the boiler.

The verdict in the case then rests upon two inferences. First, the inference that because Starr took out of the boiler a flue with a nick in it that, therefore, it was the flue from which the piece broke off that hit Johnson. Second, the inference based upon the other inference that because Starr took it out of the boiler it was old, worthless and worn out. We think a verdict based upon these inferences would be based upon mere speculation, and, therefore, not warranted by the evidence. M. K. & T. Ry. Co. v. Foreman (C. C. A.) 174 Fed. 377.

Judgment reversed and new trial ordered.

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