YOUNG, J. [1] It is unnecessary to con- | inability to protect himself was the result of his sider whether the defendants were under prior negligence. any legal obligation to care for the horses while the car was being repaired. By assuming the care of them, it became their duty to do what the ordinary man would have done in that situation, and it is no answer to this action to show that their un dertaking was voluntary. Edwards v. Lamb, 69 Ν. Π. 599, 45 Atl. 480, 50 L. R. A. 160. [2] Reardon's knowledge in respect to the care given the horses was not the knowledge of the plaintiffs; for he was not their servant, but an independent contractor. [3] The contract was made, and the act of which the plaintiffs complain was done, in Indiana. The rights and liabilities of the parties, therefore, depend on the law of that state. MacDonald v. Railway, 71 N. H. 448, 450, 52 Atl. 982, 59 L. R. A. 448, 93 Am. St. Rep. 550. [4] As that is understood, a contract by which a common carrier seeks to limit his common-law liability, to be valid, "must be fairly made upon a sufficient consideration, after the shipper has been given an opportunity to choose between the common-law right and rate and the special contract rate and limited liability." Pittsburg, etc., Ry. v. Mitchell (Ind.) 91 N. E. 735, 740; Cleveland, etc., Ry. v. Hollowell, 172 Ind. 466, 88 Ν. Ε. 680; Acts Ind. 1905, c. 47, § 2. In considering whether the shipper had such an opportunity, the question is, not what the contract recites in respect to the matter, but whether he had in fact a chance to choose between his common-law right and the lower rate with limited liability. Lake Erie, etc., R. R. v. Holland, 162 Ind. 406, 69 N. E. 138, 63 L. R. A. 948. It can be found that the plaintiffs had no such opportunity; for Kimball testified that the defendants would not accept the horses unless he signed a contract releasing them from liability as common carriers, and that their agent told him he must value the horses at $75 each. Plaintiffs' exception sustained. Judgment for the plaintiffs for $750. All concurred. (76 Ν. Η. 80) MORSE v. MANCHESTER ST. RY. (Supreme Court of New Hampshire. Hillsborough. March 7, 1911.) -IN STREET RAILROADS (§ 118*)-OPERATION-INJURIES TO DRIVERS OF VEHICLES. In an action against a street railway company for personal injuries in a collision between a team driven by plaintiff and a street car, where the evidence showed that ordinary care on the part of the motorman, after he knew the plaintiff's danger, would have prevented the accident, and there was no contention that plaincould have prevented it after he knew of his danger, it was not error to instruct that the defendant would be liable if it could have prevented the accident by ordinary care after the motorman knew or ought to have known that the plaintiff was likely to be in a condition of danger from which he could not escape, even if his [Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 258-269; Dec. Dig. § 118.*] Exceptions from Superior Court, Hillsborough County. Case by Edgar H. Morse against the Manchester Street Railway. Judgment for plaintiff. Defendant excepts to an instruction that the defendant would be liable if it could have prevented the accident by ordinary care after it knew or ought to have known that plaintiff was likely to be in a position of danger from which he could not escape by the exercise of like care, even if the inability to protect himself was the result of his own prior negligence. Exceptions overruled. Taggart, Tuttle, Burroughs & Wyman, for plaintiff. Burnham, Brown, Jones & Warren, for defendant. YOUNG, J. The defendant concedes the validity of the charge as an abstract proposition, but contends that it was inapplicable to the facts of this case. The question, therefore, is whether there is any evidence that ordinary care on the part of the defendant after it knew of the plaintiff's danger would, and that like care by the plaintiff after he was conscious of his danger would not, have prevented the accident. Altman v. Railway, 75 N. H. 573, 78 Atl. 616. The The plaintiff testified that he did not know of his danger until his team was on the track in front of the approaching car. The motorman testified that he knew the plaintiff was in danger before the team reached the north crosswalk, 30 feet or more from the place where the accident happened. team was moving at a speed of 5 miles an hour. The evidence was conflicting as to the speed of the car and its distance from the point of collision when the motorman first knew of the plaintiff's danger; but as the speed of the team and its distance from that point is known, it is a simple matter. to compute the position of the car. If the speed of the team and the car were the same, they were the same distance (30 feet) from the place where the accident happened. If the speed of the car was two or three times as great as that of the team, the car was two or three times as far away (60 or 90 feet). A car moving at the rate of 5 miles an hour can be stopped almost instantly; one moving at 10 miles an hour, within 25 feet; and one moving at 15 miles an hour, within 35 feet. It can be found, therefore, that ordinary care on the part of the motorman after he knew of the plaintiff's danger would have prevented the accident, no matter how fast the car was moving; and the defendant does not contend that it cannot be found there was nothing the plaintiff could have done to prevent the accident after he knew the business to the plaintiff and agreed with of his danger. Exception overruled. him in writing as follows: "In consideration that G. B. Clark has this day purchased my gristmill at Wolfeboro Falls, it is PARSONS, C. J., and WALKER, J., con- hereby agreed to and with the said Clark curred. that I will not in any way, form, or manner deal in grain within a radius of 10 miles BINGHAM and PEASLEE, JJ. We of said gristmill for the term of 10 years agree in the result reached in this case, upon the ground that there was evidence from which the jury could find that, after the plaintiff was in a position of danger from which he could not extricate himself by the exercise of due care, the defendant could have avoided injuring him by the exercise of like care. Dec. Dig. § 312.* [Ed. Note. For other cases, see Contracts, For other definitions, see Words and Phrases, vol. 2, pp. 1857-1859.] 2. DAMAGES (§ 77*)-LIQUIDATED DAMAGES. Where a contract provides for a forfeiture of a sum of money on breach, whether it is intended as a penalty or liquidated damages depends on the intention of the parties. [Ed. Note. For other cases, see Damages, Cent. Dig. § 156; Dec. Dig. § 77.*] 3. DAMAGES (§ 79*)-LIQUIDATED DAMAGES. Where on the sale of a mill the seller agreed not to engage in dealing in grain within a specified territory within a term of years, under forfeiture of a certain sum of money, the difficulty in ascertaining the amount of the purchaser's damages in case of breach tended to prove that the forfeiture was liquidated dam ages. [Ed. Note. For other cases, see Damages, Cent. Dig. §§ 164-169; Dec. Dig. § 79.*] Exceptions from Superior Court, Carroll County; Chamberlin, Judge. Action by Greenleaf B. Clark against William J. Britton, as administrator of the estate of Roscoe M. Flanders. From the judgment, plaintiff and defendant bring exceptions. Plaintiff's exception sustained, and defendant's exception overruled. Roscoe M. Flanders, the defendant's intestate, was the owner of a gristmill and sold grain at retail. August 28, 1903, he sold next ensuing, under forfeiture of the sum of $500." Shortly after the sale, Flanders entered the employ of a wholesale grain concern as a traveling salesman, and while so engaged sold to retail dealers within a radius of 10 miles of the gristmill named in the agreement, and received the agreed commission on such sales. Subject to the plaintiff's exception, the court ruled that Flanders, by taking orders as a traveling salesman, did not "in any way, form, or manner deal in grain," within the meaning of those words as used in the foregoing agreement. Subject to the defendant's exception, the court ruled that, if the plaintiff was entitled to recover, the measure of his damages was the forfeiture mentioned in the agreement. Felker & Gunnison, for plaintiff. William J. Britton and Leslie P. Snow, for defendant. YOUNG, J. If the intestate sold grain within 10 miles of the mill, he broke the contract, for selling grain on commission is a form of dealing in grain, if "deal" is given its ordinary meaning. It is improbable that the words "in any way, form, or manner" would have been used if the sole purpose of the parties had been to prevent the intestate from selling grain at retail. These words tend to prove that the intestate was not to engage in any branch of the grain business, either on his own behalf or on behalf of another. Under the rule which is now applied to construe a written agreement, the fact that the agreement is in restraint of trade is immaterial. The issue of intention is one of fact to be determined, like all such questions, not by a rule, but by competent evidence. Whether the $500 was intended as a penalty or as liquidated damages depends on the intention of the parties. Hurd v. Dunsmore, 63 N. H. 171. The difficulty in ascertaining the amount of the plaintiff's damages in case the contract is broken tends to prove that it is liquidated damages (Houghton v. Pattee, 58 N. H. 326); and, if that was not its purpose, it adds nothing to the agreement. Plaintiff's exception sustained; defendant's exception overruled. All concurred. *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes (76 Ν. Η. 35) STRAW v. PITTSFIELD SHОЕ СО. the first year and a half of his employment. At the end of that time a hole was cut in (Supreme Court of New Hampshire. Merri- the rear wall, so that the sawdust whicn mack. Feb. 7, 1911.) MASTER AND SERVANT (§ 125*)-INJURIES TO SERVANT-MASTER'S LIABILITY FOR PLACE TO WORK. Where a servant used a hole in the wall as a door, and was injured in so doing, and it was not intended for use as a door, and the master did not know that he so used it, and could not have anticipated such use, he was not liable for the injuries received; the hole not being defective as a place of work. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 243-251; Dec. Dig. § 125.*] Young, J., dissenting. Transferred from Superior Court, Merrimack County; Wallace, Judge. Action on the case for negligence by George E. Straw against the Pittsfield Shoe Company. There was a verdict for the plaintiff. and on the defendant's exception to a denial of its motion for a directed verdict, the case was transferred to the Supreme Court. Verdict set aside, and judgment entered for the defendant. Remick & Hollis, Harry J. Brown, and Alexander Murchie (Mr. Murchie, orally), for plaintiff. Streeter, Hollis, Demond & Woodworth (Mr. Woodworth, orally), for defendant. PEASLEE, J. The defendant's motion for a directed verdict was based upon the ground (among others) that the place where the plaintiff was injured was not one where his duty required him to be, or where the defendant ought to have anticipated he would go, and therefore it owed him no duty to make the place safe. He was injured by being caught upon pins projecting from a revolving shaft located nine inches from the rear wall of an open woodshed and nearly two feet above the ground. Timbers six inches square and about as high as the shaft formed the frame supporting it; the front timber being about three feet farther from the wall than the shaft, and the rear one a little outside the shed wall. Power was taken from this shaft to operate a wood saw. The saw was about five feet front of this frame, and so located that the man taking away from it stood in an open space at the end of the saw bench and in front of the frame carrying the driving shaft. The plaintiff had worked about this place some two years before the accident. He did not operate the saw, but assisted in handling the wood, drove a team, and did odd jobs about the premises. His eyesight was impaired, and there was some evidence that he was not of average intelligence. accumulated in front of and to some extent under this frame might be more conveniently thrown out. This opening was 2 feet 10 inches wide by 3 feet 10 inches high, and the bottom of it was 18 inches above the top of the shaft. The boards that were cut out were made into a shutter to close the opening when it was desirable to do so. This shutter was not hinged to the studding, but had to be removed bodily. The opening was not made for a passageway for human be ings, and the plaintiff never found occasion to so use it in the course of his work for the defendant until the time of the accident. He had, however, been through it on his own affairs more than 50 times, and had seen some of his fellow servants do so a few times. There was no evidence that the defendant knew of such use. Upon the da of the accident, the plaintiff, when inside the shed, had occasion to go behind it, and instead of going around, attempted to pass through this opening, and was caught upon the projecting pins and injured. His excuse for not going around was that there were woodpiles at either end of the shed, so that he would have had to travel considerably farther. Upon these facts there was nothing for the jury upon the question of work place. This was not prepared for one, had none of the appearance of one, and so far as the defendant knew had never been so used. There was but infrequent occasion for any one to go behind the shed. The way around the ends was not long, even when there was more or less wood piled there; while this opening was over three feet above the ground, and the approach to it was obstructed by the timber three feet from the wall and the revolving shaft near to it. The plaintiff claims it could be found that the sawdust was quite deep there on the day of the accident, because he testified he found it an easy step into the window. When it is considered that the plaintiff's statement to this effect applied to all the times he went through the opening, and to going in either direction, it is apparent that his ideas of an easy step are not such as his employer was called upon to take into account in considering what further obstruction it ought to put in the way of one predisposed to the use of this opening for a door. There is no evidence that the defendant was aware of his extraordinary agility, and unless it was it could not be expected to act in reference to it. The evidence shows conclusively that the plaintiff was in a place where he had no business to be, and for the condition of which the defendant is not responsible to "A master's duty in respect to fur There is no pretense that he had any occasion to go behind the front timber of the driving shaft frame before mentioned for him. nishing his servants a safe place in which to (230 Pa. 240) work extends to such parts of his premises DOLLAR SAVINGS FUND & TRUST CO. only as he has prepared for their occupancy while doing his work, and to such other parts as he knows or ought to know they are accustomed to use while doing it." Morrison v. Fibre Co., 70 N. H. 406, 408, 47 Atl. 412, 413 (85 Am. St. Rep. 634). v. BOROUGH OF BELLEVUE. (Supreme Court of Pennsylvania. Jan. 3, 1911.) 1. MORTGAGES (§ 246*) - ASSIGNMENT-RIGIITS OF ASSIGNEE. Where one buys a mortgage with his own Verdict set aside. Verdict and judgment money, he may take title to it in his own name for the defendants. VENDOR AND PURCHASER (§ 18*) - OPTION - Eight persons executed an option to sell land, the option to expire on a day named. Held, that a written notice dated the last day of the option, addressed to each of the owners, but served only on one, will bind such person only, where he had no authority from the others to accept service of notice, or to sell the land. [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. § 23; Dec. Dig. § 18.*] Appeal from Court of Common Pleas, Allegheny County. Bill by Luella Eisler against Samuel S. Marshall and others. From a decree dismissing the bill, plaintiff appeals. Affirmed. Argued before BROWN, MESTREZAT, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ. James S. Campbell, for appellant. John D. Brown, for appellees. or in the name of another to whom he chooses to have it assigned, and either he or his assignee is entitled to the security given by the mort gage. [Ed. Note. For other cases, see Mortgages, Cent. Dig. § 656; Dec. Dig. § 246.*] 2. EMINENT DOMAIN (§ 154*) -FORECLOSUREINSUFFICIENT PROCEEDS. Where land is depreciated in value by the grading and widening of a street, and the owner is given damages for the injury, but the property is sold under foreclosure before the award is paid, and because of the injury brings only a fractional part of the mortgage debt, the owner of the mortgage may make good his loss caused by the depreciation out of the fund to be paid as an award, though the owner of the mortgage was interested in a dual capacity because of an agreement with the municipality to indemnify it against damages in excess of a certain amount in connection with the street improvement; the mortgagee not being a party to such agreement and having no interest therein. [Ed. Note. For other cases, see Eminent Domain, Cent. Dig. §§ 417-420; Dec. Dig. § 154.*) Appeal from Court of Common Pleas, Allegheny County. Action by the Dollar Savings Fund & Trust Company, administrator with the will annexed of T. Lee Clark, and others, against the Borough of Bellevue. From an order dismissing exceptions to an Auditor's report, the administrator appeals. Affirmed. Argued before BROWN, MESTREZAT, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ. A. H. Trimble, for appellant. Noah W. Shafer, for appellee James E. Harmon. PER CURIAM. The agreement which the appellant would have specifically enforced gave her the right to purchase, within two years from its date, certain coal, upon giving written notice to the appellees of her election to do so. The agreement was executed October 9, 1906, and the option under it expired October 9, 1908. The ownership of the coal was in eight persons, the parties of the first part to the agreement, which was sign-curbing, and widening of a certain street in ed by each of them, and each was entitled to written notice from the appellant of her election to exercise her rights under it. On October 9, 1908, the day the option expired, a written notice of such election, addressed to the appellees, was served upon D. P. Marshall, one of the parties of the first part to the agreement; but, under the court's finding, fully justified by the evidence, that he was the agent of the other seven only in certain matters and with limited powers, and had no authority from them to sell the coal, or to accept for them the notice provided for in the agreement of the appellant's election to purchase, the bill was properly dismissed as to all but him for want of notice. Decree affirmed, at appellant's costs. ELKIN, J. In a proceeding to assess damages for injuries resulting to an abutting property owner by reason of the grading, the defendant borough, the estate of T. Lee Clark on appeal was awarded $4,250. The verdict fixed the amount of the damages and the liability of the borough. It is not therefore interested in what distribution shall be made of the fund in controversy here. Its liability is the same, no matter to what claimants the fund may be awarded. The questions raised by this appeal grow out of claims made by the estate of Clark on one side and the mortgage creditor on the other. The Clark estate, as owner of the property injured at the time of the grading and widening of the street, claims the entire fund, while the mortgagee claims enough of the fund to liquidate the unpaid balance of his mortgage. At the time of the street improvement the injured property was heavily | cover the balance due on the mortgage, nei ther can Harmon nor any one else. In our view of the case Hallett had a perfect right to purchase the mortgage in his own name or in the name of any one to whom he chose to have it assigned. When he became a purchaser of the mortgage for value, he acquired whatever security the mortgage gave. If the real estate bound did not pay the mortgage debt, he could proceed for the balance in a personal action on his bond, or, if damages accrued to the owner by reason of the taking of or injury to the mortgaged property, the security of the mortgage being thus depreciated, he could follow the fund so awarded to the extent of making good his loss by the depreciation so occasioned. This is what was done in the present case. It is very earnestly contended that Hallett acted fraudulently because he was interested in a dual relation between the borough on one side and the mortgaged property on the other. This situation grew out of the fact that, at the time the street improvement was made, Hallett, being a large property owner, and as a consequence being interested in having the street graded, curbed, and widened, had entered into an agreement with the borough to indemnify it against all damages assessed to property owners in excess of $500. Under his agree ment with the borough he was interested in mortgaged, but not to its full value. After the street improvement, the property was so depreciated in value that on a foreclosure sale only a fractional part of the mortgage debt was realized. The mortgagee, having failed to realize the amount of his mortgage out of the proceeds of the foreclosure sale after the grading and widening of the street, presented a petition in the court below asking for leave to intervene as a party to the proceeding to assess the damages of the abutting property owner in order that he might participate in the damages awarded to the extent of the unpaid balance of his mortgage. The court granted a rule to show cause why as mortgagee he should not receive out of the damages that might be awarded so much thereof as he may be entitled to in order to liquidate his claim under the mortgage. To this rule appellant made answer denying the right of the holder or owner of the mortgage to participate in any damages that might be awarded, to which answer a replication was filed by mortgagee. After the original petition was filed, and while the rule to show cause was pending, the case on appeal from the assessment of damages by the viewers came on for trial, and a verdict was returned for the amount hereinbefore indicated. At this juncture an auditor was appointed to pass upon the questions raised on the rule to show cause, which had not been disposed of, and to make distribution of the amount of damaged his interests were best served by a large ages fixed by the verdict of the jury. A large amount of testimony was taken in support of the respective contentions of the parties with the result that the auditor found both the facts and law in favor of the mortgage creditor to whom was awarded the unpaid balance of the mortgage debt. A state ment of these details has been deemed essential to a proper understanding of the nature of the controversy and to a judicial determination of the legal rights of the interested parties. At the hearing before the auditor appellant attempted to prove a collusive understanding in the nature of a fraud between Harmon, the assignee of the mortgagee, and Hallett, the alleged real owner thereof. This no doubt for the purpose of raising an estoppel in order to prevent a recovery on the mortgage by either party on the ground that one cannot take advantage of his own wrong. The auditor found as a fact that the acts complained of did not amount to fraud and that Hallett had acted within his legal rights. While the mortgage was assigned to Harmon, the money to purchase it was furnished by Hallett, and the auditor in passing upon the questions involved treated the latter as the real owner, and we think prop reducing damages to the minimum, while as owner of the mortgage on the property dam award. It is in this connection that his acts are criticised. In other words, appellant seeks to take advantage of the controversy between Hallett and the borough arising out of his contract to indemnify it against damages in excess of $500 as a defense to his claim on the mortgage. We do not see how this defense can avail to defeat a recovery on the mortgage. The borough does not set up the defense and is not benefited by it. Appellant is not a party to the agreement between Hallett and the borough and is not in position to ask for its enforcement. That agreement stands as it did before the present proceedings were instituted. The borough can at any time before barred by the statute proceed against Hallett to recover the amount due according to the terms of his contract. But such a recovery depends upon the contractual relations between Hallett and the borough to which appellant is not a party and in which he has no interest. The only question in the case now pending is whether the claim presented by Hallett is a valid one having the right to participate in the fund for distribution. The learned auditor has found it was, and we think the evidence was sufficient to sustain the finding. Assignments of error overruled, and de erly so. If, therefore, Hallett, cannot re-cree affirmed. Costs to be paid by appellant. 79 A.-32 |