Harlow & Son supended operations, and made the contract in question with the plaintiffs for the manufacture of wooden cuttingblocks and meat blocks. By the terms of this agreement the plaintiffs were to furnish suitable machinery for the manufacture of these goods, retaining title thereto until wholly paid for, and also to purchase, and consign to Harlow & Son, lumber for such manufacture, to the amount of $1,000, the same to remain the property of the plaintiffs. It was also stipulated in the contract that the plaintiffs might deduct 35 per cent. of the amount due Harlow & Son for the manufacture of the blocks; 25 per cent. to be used towards the payment of the lumber furnished, and 10 per cent. to be applied towards the payment of the machinery which Harlow & Son had agreed to purchase on the terms stated.

In the report of the case it is expressly admitted that "the machinery sued for was put into the mill and set up, and that it became fixtures, under the ordinary rules relative to machinery."

It is a well-recognized rule that when articles of personal property, which are especially adapted and designed to be used in connection with the realty, and essential to the convenient and profitable enjoyment of the estate, are affixed to it, with an intention to make them a permanent accession to the land, they become a part of the realty, though not so fastened as to be incapable of removal without serious injury to themselves or the freehold. Pope v. Jackson, 65 Me. 162; Strickland v. Parker, 54 Me. 263. So, when machinery is sold and placed in a building for the purpose of making it available as a manufactory, and permanently increasing its value for occupation, an agreement between the seller and buyer that the title shall remain in the former until it is wholly paid for will not bind or affect the mortgagee of the realty without notice, and such machinery will pass to the mortgagee as a part of the realty. Bank v. Exeter Works, 127 Mass. 542; Thompson v. Vinton, 121 Mass. 139; Hunt v. Iron Co., 97 Mass. 279. But as against a mortgagee who, with full knowledge, consents to the arrangement, and, while in possession under his mortgage, treats the machinery as personal property, it may properly be considered as a chattel removable by the seller retaining title thereto, although it has the character of a fixture, and has been permanently annexed. Bartholomew v. Hamilton, 105 Mass. 239. So, also, articles which are merely incidental to the particular business carried on at the time, and not designed to be permanent adjuncts to the building, and not essential to the profitable occupation of it, will be deemed personal property, although the advantageous use of them may require a fastening by nails or bolts. McConnell v. Blood, 123 Mass. 47.

Ir. this case it appears from the testimony of one of the plaintiffs that, before the ma

chinery was delivered to Harlow & Son, he made a special inquiry of the defendant in regard to the mortgage on the mill, and was assured by him that it would "in no way interfere with any transaction he might have with Mr. Harlow in relation to supplying him with such machinery as was necessary, that would have to go into the building." The defendant admits that he had a conversation with this plaintiff, in the presence of Mr. Harlow, in regard to the machinery required for the new line of work, and that he agreed "to take no advantage under the mortgage;" but he claims that only four machines were mentioned as necessary for the manufacture of the blocks, and that he heard nothing said about the gearing and other articles named in the writ. A careful examination of all the testimony on this point, viewed in the light of the situation and circumstances, the obvious interests of the parties, and their subsequent conduct, leads irresistibly to the conclusion that the plaintiffs acted upon the belief-and were justified in so doing-that the rights of the mortgagees were waived, as to all machines put in by them that might be essential to the profitable conduct of the business of manufacturing blocks in that mill, and as to all such gearing and attachments as would be reasonably necessary to make the machines available and operative for the purpose for which they were designed. The mortgagees had a loan of $1,200 on a mill then standing idle. Their security would not only not be impaired, but its value largely increased, by the establishment of a permanent business there. It was manifestly for their interest to have suitable and sufficient machinery placed in the mill to carry on the business in an advantageous and successful manner; for thus the machinery thereafter furnished could soon be wholly paid for by 10 per cent. of the earnings of Harlow & Son, according to the terms of this contract, and become a part of the realty subject to the mortgage in question. It is reasonable to presume, also, that this understanding extended to all such shafting and gearing as might be required to enable them to set up and operate the machinery thus furnished. thus furnished. If, in the course of six or seven months after the four machines first put in had been tested, it was found from experience that a more profitable business could be done by the aid of a "Daniel's planer," the plaintiffs were authorized to assume that it could be furnished under the same arrangement as the others. This is confirmed by the subsequent conduct of the parties, for it appears that, in the discussions respecting the plaintiffs' claim to the machinery, no distinction in this respect was made between the four machines set up in January and February and those furnished at a later date.

But this enterprise also proved unsuccessful, and in March, 1891, Harlow surrendered

possession of the property to the mortgagees; and the defendant soon after removed from the mill, and sold, all the Hawkins machines, with the pulleys, shafting, belting, and hangers pertaining to them, and received a check therefor in his own name.

It affirmatively appears from the testimony on both sides that, by virtue of the provision in the contract for the appropriation of 10 per cent. of the earnings of Harlow & Son to the payment of the machinery furnished, the sum of $375 had been actually applied by the plaintiffs to that account. But by the terms of the contract the entire payment of the purchase money was made a condition precedent to the passing of the title to any of the machinery purchased; and in such a case it is settled law in this state that, in an action of trover brought by the vendor against a third person, who has purchased of the conditional vendee for value received, the plaintiff is still entitled to recover the full value of the property at the time of the conversion, although but a single dollar of the purchase money remains unpaid. Everett v. Hall, 67 Me. 497; Brown v. Haynes, 52 Me. 578.

Under these circumstances, an exact compliance with the provisions of the contract between the plaintiffs and Harlow & Son may properly be insisted upon in behalf of this defendant. The contract bears date January 24, 1890, and expressly refers to all machinery "which shall be consigned" to the Harlows, and provides for an appropriation of the 10 per cent. in question to "said machinery." It appears from the first two items in the account annexed to the writ that two machines had already been furnished under date of January 21, 1890, of the value of $130 and $80, respectively. The machinery and fixtures consigned under date of January 31st and February 11th, and the machinery and articles furnished under date of March 8th (not including the "oak belting"), amount to the sum of $369.31. Each of these items may have been the result of a special order, and the subject of a separate contract. Bennett v. Davis, 62 Me. 544. In the absence of any special directions from Harlow & Son with reference to the appropriation of the 10 per cent., and of any evidence from the plaintiffs showing a different appropriation, in accordance with familiar principles, the sum of $375, admitted to have been applied to the payment of machinery, must be deemed to have been applied to extinguish the earliest items in the account furnished after the date of the contract. As to all the items above indicated, amounting to $369.31, the purchase money was thus fully paid before the commencement of this action; and, as the title to these articles was no longer in the plaintiffs, they are not entitled to recover for them in this suit. Neither are they entitled to recover for the nails and glue, nor for the item of $9.20 under date of November 20, for "fitting

and filing" saw. For all other items in the account, the value of which is "to be determined by G. A. Wilson, agreed upon as assessor of damages by the parties," there must be,

Judgment for the plaintiffs.

MUNDLE v. HILL MANUF'G CO. (Supreme Judicial Court of Maine. May 10, 1891.)

MASTER AND SERVANT-RISKS OF EMPLOYMENTDUTY OF MASTER-WAIVER BY SERVANT.

1. Assuming the risks of an employment by a servant while in the service of the master is founded upon an essentially different principle from incurring an injury through contributory negligence.

2. The servant may be debarred from a recovery against the master when he voluntarily assumes the risk, but this is not identical with the principle on which the doctrine of contributory negligence rests.

3. One does not voluntarily assume a risk, within the meaning of the rule that debars a recovery, when he merely knows there is some danger, without appreciating the danger.

4. Mere knowledge of a danger will not preclude a plaintiff from recovering unless he appreciates the risk.

5. It is the duty of the master to provide suitable instruments with which, and a proper place where, the servant may perform his work, subject only to such risks as are necessarily incident to the business.

6. But a servant of sufficient age and intelligence to understand the nature of the risk to which he is exposed may waive this obligation which is due to him from the master, or may dispense with it altogether.

7. Having full knowledge and appreciation of the dangers to which he is exposed, and consenting to serve in the way and manner in which the business is conducted, he has no legal ground of complaint, even if reasonable precautions have been neglected by the master, and an injury is received. (Official.)

Exceptions from supreme judicial court, Androscoggin county.

Action by Laura Mundle against the Hill Manufacturing Company to recover damages for personal injuries caused by defendant's negligence while plaintiff was in its employ. There was a verdict for plaintiff, and defendant brings exceptions, and moves for a new trial. Exceptions sustained.

F. W. Dana and W. F. Estey, for plaintiff. Wallace H. White and Seth M. Carter, for defendant.

FOSTER, J. The plaintiff had been in the employ of the defendant as an inspector of cloth for about three months at the time of the accident. In the performance of her work she had occasion to pass from her inspecting table to the stitcher, a distance of about 20 feet, across the room, from 100 to 125 times a day.. While walking across the floor she stuck a splinter from the floor into her foot, for which injury this action was brought, and the jury awarded her damages in the sum of $500.

The undisputed facts gathered from the plaintiff's own story are that she knew the condition of the floor, had walked on it for three months, and had noticed that it was not what it should be, and was always very careful; that she considered it dangerous, and was always very careful in walking back and forth; that she had it in mind all the time:. that there was no occasion for her to hurry, and that she could go back and forth from the inspecting table to the stitcher carefully and leisurely; that the room was well lighted; that the floor over which she had occasion to pass was not covered up or concealed in any way, and was in about the same condition at the time of the accident as when she began to work there; that the wearing and splintering of it was occasioned by iron trucks heavily loaded with cloth passing over it many times a day; that she never spoke to the overseer, or made any complaint to any one, about the condition of the floor: and that she was not induced to remain under any promise of a change or repair. It also appeared that the plaintiff, at the time of the accident, had on a shoe torn across the toe, and that the splinter entered her foot at the point where the shoe was torn.

The defendant contended that the plaintiff, having continued to work during all this time with full knowledge of the condition of the floor and the uses to which it was put, without making any complaint or calling the attention of the overseer or any other person representing the defendant to the alleged dangerous condition, and not being induced to continue in her work by any promise that a change would be made, assumed the risks involved, among which would be the liability of her feet being injured by splinters.

The jury, after having been fully instructed, and after deliberating upon the case for some time, returned into court and asked the following question:

"If the plaintiff went on to this floor seeing all the danger there was about it,-if she saw everything there was there, and the condition of the floor,-and continued to work upon it, if the floor was faulty, would she be entitled to recover?"

Thereupon, in response to this inquiry, the following instruction was given by the court:

"That is a question which has often been before the courts, and in some of the states it has been held that such knowledge is a bar to a recovery. But we have not gone so far as that in this state. We hold that it is possible for one to continue in the service of another after knowing that the premises or some of the machinery is dangerously and negligently defective, and that such knowledge is not necessarily a bar to a recovery for an injury occasioned by such a defect. Such knowledge is a circumstance to be weighed by the jury in determining whether v.30A.no.2-2

or not the person injured was guilty of contributory negligence, but is not necessarily a bar to a recovery. If you think that, under all the circumstances, the plaintiff was excusable, that is, that she was not guilty of contributory negligence,-and you also find that the floor was defective and dangerous, you will be justified in finding a verdict in her favor. It is requiring a good deal of a girl (or any one) who is obliged to work for a living, and has a good position, to leave it, or continue in it at her own risk, simply because she knows of some defect carelessly or negligently left by her employer. She has a right to assume that in due time he will make the necessary repairs, and upon that assumption she may work on; and if, in so doing, there is no want of ordinary care on her part, mere knowledge of the defect is not a bar-not a legal bar-to a recovery for an injury occasioned by the defect. But such knowledge is a circumstance to be weighed by the jury in determining whether or not the person injured was guilty of contributory negligence; and upon that question their judgment must control."

To this instruction the defendant excepts, and the question is as to its correctness, as applied to the undisputed facts in this case, and those assumed in the question.

In this connection we feel that the instruc tion, as given, must have misled the jury, and their attention should have been called to the distinction between a right of recovery being barred by contributory negligence, and by the voluntary assumption of a known and appreciated risk or danger.

The question presupposed both a defective floor and a full knowledge or the part of the plaintiff of all danger incident to its use, and called for instructions as to whether the plaintiff could recover if she knew and appreciated the danger, and voluntarily assumed the risk. The instructions wholly omitted to deal with this aspect of the case, and were limited to the question of contributory negligence, thereby leaving the jury to determine whether such knowledge should preclude the plaintiff from recovering on the ground of contributory negli gence alone, and not by reason of her voluntarily assuming a risk or danger fully known and appreciated by her.

Assuming the risks of an employment is one thing, and quite an essentially different thing from incurring an injury through contributory negligence. Generally, it is sufficient, in actions for the recovery of damages, to give instructions as to the effect of contributory negligence on the part of the plaintiff. But, when the question arises as to the effect of knowledge and the assumption of risks on the part of the plaintiff, something more is required. As was said in Miner v. Railroad, 153 Mass. 398, 26 N. E. 994: "The principle that one may be debarred from a recovery when he voluntarily assumes the risk is not identical with the principle on

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which the doctrine of contributory negligence rests, and in proper cases this ought to be explained to the jury. One may, with his eyes open, undertake to do a thing which he knows is attended with more or less peril, and he may, both in entering upon the undertaking and in carrying it out, use all the care he is capable of; but whether or not he thereby assumes the risk may depend on other circumstances."

The difficulty often arises in determining whether the risk has been voluntarily assumed. One does not voluntarily assume a risk, within the meaning of the rule that debars a recovery, when he merely knows there is some danger, without appreciating the danger. Nor does he, on the other hand, necessarily fail to appreciate the danger because he hopes, and even expects, to encounter it without injury. If he comprehends the nature and the degree of the danger, and voluntarily takes his chance, he must abide the consequences, whether he is fortunate or unfortunate in the result of his venture.

It is well settled that a servant, by entering the service of the master, assumes all known or apparent risks which are incident to it, however dangerous the service may be, even if it might be conducted more safely by the employer. On the other hand, it is a part of the contract which is implied that the master shall provide suitable instruments with which, and a proper place where, the servant may perform his work with safety, or subject only to such risks as are necessarily incident to the business. But it is in the power of the servant, having sufficient age and intelligence to understand the nature of the risk to which he is exposed, to waive this obligation on the part of the employer, or dispense with it altogether. This doctrine is firmly established by numerous decisions, and is stated with such clearness in the case of Sullivan v. Manufacturing Co., 113 Mass. 396, that we quote the following language from the opinion of the court, in reference to the servant assuming risks: "When he assents, therefore, to occupy the place prepared for him, and incur the dangers to which he will be exposed thereby, having sufficient intelligence and knowledge to enable him to comprehend them, it is not a question whether such place might, with reasonable care and by reasonable expense, have been made safe. His assent has dispensed with the performance on the part of the master of the duty to make it so. Having consented to serve in the way and manner in which the business was being conducted, he has no proper ground of complaint, even if reasonable precautions have been neglected."

There is a class of cases which recognizes the doctrine, as we have stated, that mere knowledge of a danger will not preclude a plaintiff from recovering unless he appreciates the risk. Linnehan v. Sampson, 126 Mass. 506; Williams v. Churchill, 137

Mass. 243; Taylor v. Manufacturing Co., 140 Mass. 150, 3 N. E. 21; Scanlon v. Railroad, 147 Mass. 484, 18 N. E. 209; also the recent English cases of Thomas v. Quartermaine, 18 Q. B. Div. 685, Yarmouth v. France, 19 Q. B. Div. 647, where this doctrine is fully sustained.

But in addition to what we have already stated in reference to the power of the servant to waive, or even dispense with, the obligation which the employer is under to him, the decisions of our own court, as well as elsewhere, hold that a plaintiff may be precluded from recovering when he voluntarily assumes a risk which he knows and appreciates, whether existing at the time he enters the service or coming into existence afterwards. It is in this class of cases that the principle expressed by the maxim "volenti non fit injuria" has the effect to debar the plaintiff from a remedy which might otherwise be open to him.

In Leary v. Railroad, 139 Mass. 580, 2 N. E. 115, the principle that no one can maintain an action for a wrong where he has consented to the act which has occasioned his loss, is thus expressed: "But the servant assumes the danger of the employment to which he voluntarily and intelligently consents, and while, ordinarily, he is to be subjected only to the hazards necessarily incident to his employment, if he knows that proper precautions have been neglected, and still knowingly consents to incur the risk to which he will be exposed thereby, his assent dispenses with the duty of the master to take such precautions."

This principle, founded upon the maxim "volenti non fit injuria," is recognized in our own state in Buzzell v. Manufacturing Co., 48 Me. 113, where the court say: "If the danger is known, and the servant chooses to remain, he assumes, it would seem, the risk, and cannot recover." Nason v. West, 78 Me. 254, 257, 3 Atl. 911; Coolbroth v. Railroad Co., 77 Me. 165; Judkins v. Railroad Co., 80 Me. 418, 425, 14 Atl. 735.

In the case last cited this court say: "Even where a master fails in his duty in respect to inspecting and repairing the machinery or appliances to be used by the employé, and the servant voluntarily assumes the risks of the consequences of the master's negligence, with knowledge or competent means of knowledge of the danger, he cannot recover damages of the master." The English decisions, whenever this question has arisen, have been in accord with this doctrine. Griffiths v. Docks Co., 12 Q. B. Div. 495, afterwards affirmed in the high court of appeal, 13 Q. B. Div. 259; Thomas v. Quartermaine, 18 Q. B. Div. 685, 697; Yarmouth v. France, 19 Q. B. Div. 647, 656; Thomp. Neg. § 973, and cases; Shear. & R. Neg. § 94; Beach, Cont. Neg. § 139.

It would not be just for one who has voluntarily assumed a known risk, or such as might be discovered by the exercise of or

dinary care on his part, and for which another might be culpably responsible, to hold that other responsible in damages for the consequences of his own exposure to those risks which were known and understood by him.

The court in Massachusetts has recently given expression to what we believe to be in accordance with the views herein expressed, in Fitzgerald v. Paper Co., 155 Mass. 155, 29 N. E. 464, in the following language: "Certainly it would be inconsistent to hold that a defendant's act is negligent in reference to the danger of injuring the plaintiff, and that the plaintiff is not negligent in voluntarily exposing himself, when he understands the danger. It is to be remembered that, in determining whether a defendant is negligent in a given case, his duty to the plaintiff at the time is to be considered, and not his general duty or his duty to others. Therefore, when it appears that a plaintiff has knowingly and voluntarily assumed the risk of an accident, the jury should be instructed that he cannot recover, and should not be permitted to consider the conduct of the defendant by itself, and find that it was negligent, and then consider the plaintiff's conduct by itself, and find that it was reasonably careful."

But in the case before us we think the jury must have understood that they were to consider the question of negligence on the part of the defendant by itself, and the plaintiff's conduct by itself, and be allowed to find that she was reasonably careful, and hence entitled to recover, if there was negligence on the part of the defendant and due care on her part, notwithstanding she may have known and appreciated the danger, and voluntarily assumed all risk. While the first part of the instruction may have been correct as an abstract proposition, yet followed, as it was, by this independent statement, "If you think that, under all the circumstances, the plaintiff was excusable,-that is, that she was not guilty of contributory negligence, and you also find that the floor was defective and dangerous, you will be justified in finding a verdict in her favor," the jury must have understood that the answer to their question presented but two propositions for their consideration: Negligence on the part of the defendant, and freedom from contributory negligence on the part of the plaintiff.

The question asked presupposes, as broadly as language can well state it, full knowledge and appreciation of the risk by the plaintiff. The defense relied upon it. The instruction bore upon the doctrine of contributory negligence, instead of the question of assumption of risk through knowledge of the defective condition of the floor. We think the jury should have been instructed in reference to the latter.

Bowen, L. J., in Thomas v. Quartermaine, supra, makes use of this language, in speak

ing of the defense in that case, similar to that set up in this: "But the doctrine of 'volenti non fit injuria' stands outside the defense of contributory negligence, and is in no way limited by it. In individual instances the two ideas sometimes seem to cover the same ground; but carelessness is not the same thing as intelligent choice, and the Latin maxim often applies when there has been no carelessness at all."

As we have before remarked, the question presupposes a defective condition of the floor, and full knowledge and appreciation of the danger by the plaintiff.

Upon these assumed facts, as stated in the question, viewed in the light of the undisputed facts in evidence, we think the jury should have been instructed that the plaintiff would not be entitled to recover. Fitzgerald v. Paper Co., 155 Mass. 155, 159, 29 N. E. 464.

Exceptions sustained.

GORDON et al. v. OLD et al.

(Court of Errors and Appeals of New Jersey. Aug. 30, 1894.)

PROBATE OF WILL-PRACTICE.

A will presented for probate 13 years after the death of the maker, and after litigation in the courts of another state over another will, purporting to be his last will, should not be admitted to probate on mere formal proof; and, if so admitted without contest, the ordinary may, on subsequent contest, revoke the probate, and require full proof.

Appeal from prerogative court.

A paper purporting to be the last will of George P. Gordon was admitted in January, 1891, to probate by the ordinary "in common form," there being no contest, and letters cum testamento annexo granted to Adeline J. Gordon and William H. Corbin. The deceased died in Norfolk in 1878, but at the time of death was a resident of the state of New York, where letters testamentary had then been granted to Henry J. Cullen, as public administrator. In February, 1891, Cullen, as personal representative under the New York letters, and Lenora M. Van Wyck, widow of deceased, and Pauline T. Reitz and Samuel R. Ruyssenaer, devisees and legatees under the will of Mary A. Gordon, daughter and only heir of the deceased, petitioned that the probate be annulled on the ground that the will was a forgery, and that the proponents of the will be required to prove it anew. An order to show cause was granted, and on hearing the ordinary decreed that the former probate be annulled. 26 Atl. 268. The proponents appeal. Affirmed.

Collins & Corbin, for appellants. E. A. & Wm. T. Day and Leon Abbett, Jr., for respondents.

PER CURIAM. The paper in question, purporting to be the last will of George P. Gordon, deceased, was presented to the ordi