and this right is not affected by his telling the vendor in the interval that the price does not suit him, if he still retains possession of the thing.'

"This statement is too broad, for the mere failure to return will not perfect the sale except it be a part of the agreement that return shall be made. If it had stated the failure to return, offer to return or to give notice of dissatisfaction, it would have been more consistent with the law as declared by adjudication.''

In Newburger v. Hoyt, 86 Ga. 508, 12 S. E. 925, under a contract of "sale or return," cigars were bought upon four months' time, the buyers to have till the end thereof to find out if they gave satisfaction, and the right to return such as were left if not satisfactory at the end of that time. It was held that the purchasers had four months to ascertain if the goods were satisfactory, and a reasonable time thereafter in which to return them, and were not compelled to return them on the day the four months expired. Where one takes home the horse of another, intending to purchase it if satisfactory, with the understanding that he is to use it by way of trial until a specified time, and then, if not satisfactory, to return it to the owner, or, if too busy, to let it stand unused till the owner should come for it, and the prospective purchaser continues to use it after the time so fixed, and then refuses to buy and offers to return it, this is evidence for the jury on the question whether the purchaser at the time so fixed had determined to retain the horse, but it is not conclusive evidence thereof: Kahn v. Klabunde, 50 Wis. 235, 6 N. W. 888. If, however, in such a case the vendee so uses the horse as materially to impair its value, the injuring of the horse disables him from performing the condition, and the sale becomes absolute: Ray v. Thompson, 12 Cush. (Mass.) 281, 59 Am. Dec. 187. In Elphick v. Barnes, 5 C. P. D. 321, 30 Moak, 810, a horse was sold, with a right in the vendee to try him eight days, and then return him if not satisfactory; and the horse died on the third day. It was held that the vendor could not recover. This case differs from a dictum of Coleridge, J., in Moss v. Sweet, 16 Ad. & E. 493, 71 Eng. Com. L. 493, to the effect that where the article is destroyed or injured so that a return within the meaning of the contract becomes impossible, it becomes an absolute sale. In Head v. Tattersall, L. R. 7 Ex. 7, 1 Moak, 140, one bought a horse of another who made a certain warranty in regard to him, with the privilege in the purchaser to return him within a fixed time if he did not answer the description. Before taking the horse the purchaser was told by the groom in charge of him that the warranty was untrue, but he nevertheless took him. While in his possession, and without any fault on his part, the animal was injured so as to depreciate his value. It was held that the buyer had the right to return him, and the taking, with knowledge of the falseness of the warranty, did not deprive him of the right. Says Cleasby, B., in that case: "As a time for

returning the horse was expressly fixed by the contract, an accident occurring within the time from a cause beyond plaintiff's control ought not to deprive him of his right, provided he can return the horse in some shape or other. The case of the death of the animal purchased is different, and need not be considered now." In the same case Kelly, C. B., cited Curtis v. Hannay, 3 Esp. 82, to show that in a particular state of circumstances, a party may disentitle himself by his conduct from returning a specified chattel. In that ease the plaintiff himself kept the horse which he had bought, and tried to cure it of a disease from which it was suffering, and so lost the right to return it, the injury probably resulting from the course of treatment. In Westcott v. Thompson, 18 N. Y. 363, 8 brewer sold and delivered a number of barrels of ale to a retailer, with the understanding that the barrels should be returned when the ale had been drawn, but if any of them were not, he should pay two dollars a barrel. This the court held not a contract of "sale or return,'' but merely a bailment, and did not give the vendee an election to retain at that price, but merely fixed the damages in case of nonreturn. Where goods are conveyed at a fixed price, with a provision that the vendee may return them if not sold, it is a contract of sale with an option to rescind, and not a contract of brokerage: Houck v. Linn, 48 Neb. 227, 66 N. W. 1103. The difference between an option to return goods if unsatisfactory and a warranty of quality is pointed out in Childs v. O'Donnell, 84 Mich. 533, 47 N. W. 1108. The latter is continuing, but the former is not, and must be exercised within a reasonable time after receipt of the goods; and their retention thereafter is regarded as an acceptance, unless the option is extended in clear and unmistakable language. Where one agrees to store the goods of another in his warehouse, and promises to buy them upon satisfactory assurance that he would have no trouble over a second order, it was held not a conditional sale whereby title vested in the vendee upon the happening of a certain contingency, but in the nature of an option to buy, title being in the vendor: W. Irving Schermerhorn Bros. Co. v. Herold, 81 Mo. App. 461. Where, in consideration of a hundred dollars, it was acknowledged that the plaintiff had delivered to the defendant certain options to land, upon consideration that if defendant should pay plaintiff ten thousand dollars within twenty days, the option should become the property of the plaintiff, who agreed to pay ten thousand dollars or return the said option within thirty days, it was held a mere option, and not a contract of sale or return"; the hundred dollars were merely the consideration for the option, and failure to exercise the optional rights within the twenty days terminated them: Wailes v. Howison, 93 Ala. 375, 9 South. 594. In Stevens v. Hertzler, 109 Ala. 423, 19 South. 838, one entered into a contract to sell stock to another, for a certain price and within a certain Am. St. Rep., Vol. 94-17

time, at the latter's option, and the former subsequently delivered the stock to him, who gave a receipt therefor in which he stated that it was to be paid for "as per terms of" the optional contract, or said stock to be returned within a time specified. It was held that upon failure to return the stock within the stipulated time the condition was discharged and the promise to pay became absolute. The court distinguishes this case from Wailes v. Howison, 93 Ala. 375, 9 South. 594, in these words: "There the delivery of the options, as they were called, was a part of the option to purchase itself. . . . . Here, the promise to pay was made in consideration of the new and independent act of delivery of the stock to the promisor, subject to be discharged by his affirmative act of returning the stock, within the stipulated time." In Wooster v. Sage, 6 Hun, 285, there was a sale and an agreement to refund if the property sold should be returned; it was returned in two years; and it was held that the agreement to refund was not affected by the statute of frauds, as it was taken out of its operation by delivery of the property and receipt of the price.

CASES

IN THE

APPELLATE COURT COURT

OF

INDIANA.

EUREKA BLOCK COAL COMPANY v. WELLS. [29 Ind. App. 1, 61 N. E. 236.]

MASTER AND SERVANT.-Risks Assumed by Mine Employés are those only which occur after due performance by the em ployer of those duties which the law imposes upon him. (p. 262.)

MASTER AND SERVANT-Negligence--Fellow-Servant.-If a master is negligent he is liable, although the negligence of a fellowservant may have concurred in bringing an injury upon an employé. (p. 263.)

MASTER AND SERVANT-Assumption of Risks-Negligence.-Under a statute requiring a mining boss to visit at certain periods the working places in the mine and take certain steps to secure the safety of the workmen therein, the failure of such boss to examine the mine as required, and his allowing, without the knowledge of a workman, a wall between the places where coal is being mined to become so thin that a charge of powder used in mining blew it out to the injury of such workman, is negligence on the part of such boss which is the proximate cause of the injury, and the risk thereof is not one assumed by such workman in the ordinary course of his employment. (p. 264.)

MASTER AND SERVANT-Negligence-Damages-Measure of.-If a servant is injured through negligence for which the master is liable, he is entitled to compensation therefor, and in estimating his damages, consideration should be had as to whether his injuries are permanent or temporary, of his mental and physical suffering, loss of time caused by the injury, expense incurred in employing a physician and nurse, and he is entitled to recover compensatory damages for his injury in any sum not exceeding the amount demanded. (p. 265.)

EVIDENCE-Conclusion of Witness.-An employé injured in a mine by the blowing out of a thin wall is competent to testify as to the duty of the mine boss to examine the rooms, entries and walls in the mine, and to see that the walls therein are kept at a proper thickness for the safety of the employés, as such testimony calls for facts and not conclusions. (p. 266.)

WITNESSES-Expert Testimony.-The decision of the trial court in permitting or refusing to permit witnesses to testify as experts will not be disturbed on appeal in the absence of plain error. (p. 267.)

J. E. Lamb and J. T. Beasley, for the appellant.

S. D. Coffey, A. W. Knight and G. A. Knight, for the appellee.

2 COMSTOCK, J. Action for personal injury, begun in the Clay circuit court, and upon change of venue tried in the Putnam circuit court. A verdict was returned and judgment rendered thereon in favor of appellee for five thousand dollars. The errors assigned are the overruling of appellant's several demurrers to the first and second paragraphs of complaint and its motion for a new trial.

The first paragraph may be summarized as follows: The defendant is, and was on the 8th of July, 1898, and prior thereto, a corporation. At the date of the accident it was engaged in the business of mining coal in Clay county, Indiana. It employed one hundred and fifty men in its mine. In order to mine and remove coal, the defendant sank a shaft from the surface of the earth to the bed of coal about eightyfive feet beneath 3 the surface. The coal was hoisted through this shaft. In the course of mining, lateral horizontal excavations were made in the coal stratum. These excavations were called rooms and entries. There was a main entry running from the shaft, and side entries running from the main entry. There was a side entry northwest of the shaft, running north. There was another entry connecting with the north entry, running in a southwesterly direction. In the course of its operations the defendant, prior to the plaintiff's alleged injuries, caused an excavation to be made in the coal stratum on the north entry within ten feet of the south line of the entry running westerly from the west side of the north entry. On the day of the plaintiff's alleged injury the defendant, by its employés, was mining coal in the room or excavation aforesaid. The safety of the men in the rooms required that the rooms or excavations near the entries, and running in the same direction, should run parallel therewith, and that there shall be a stratum or pillar of coal left standing between the excavations of from ten to twelve feet in thickness in order to prevent the mine from caving in, and to prevent explosions from shots of powder, used in mining the