BALDWIN, J. (after stating the facts). The plaintiff alleged due performance of a written contract. The trial court has found that it was substantially, though not fully, performed. If so, the plaintiff, not being found to have been in willful default, had a cause of action for the reasonable value of the work and materials so furnished, estimated with reference to the contract price and to the resulting benefit to the defendant, provided she appropriated that benefit under circumstances sufficient to raise an implied promise to pay for it. Pinches v. Lutheran Church, 55 Conn. 183, 10 Atl. 264; Jones v. Town of Marlborough, 70 Conn. 583, 589, 40 Atl. 460. The plaintiff finished the job (so far as it did finish it) more than a year before its complaint was filed. It added to the defendant's house what evidently must have increased its value, provided the plumbing introduced were left in proper working order. It was not so left, but all the defects could be remedied for $100, which was but a fraction of the contract price. It is true that they were such as, till remedied, made all the plumbing worse than useless, because it was a necessary source of danger to the health of those inhabiting the house. But so would it have been had the soil pipe been accidentally left stuffed with shavings, which could have been removed in an instant. Potentially, the house was benefited by what had been done, and it might fairly be held that the contract was performed in substance, though not in all its details. The question before us is not whether, as matter of law, the contract was substantially performed, but whether it could, as a matter of fact, reasonably be held to have been so performed. West v. Suda, 69 Conn. 60, 36 Atl. 1015. Under these circumstances, the superior court was justified in refusing to allow the defendant to enrich herself at the plaintiff's expense. It may be that she could have had all that it had put in removed as worthless in its existing shape. But knowing, or having the means of knowing, that a comparatively slight expenditure would make it all that the contract called for, she allowed ft to remain. This being so, the law implies a promise from her to do what she ought to do, and the judgment appealed from correctly measures her liability in this respect. It is urged that the case made varies from the complaint. In the trial court there was a general claim of law that no finding of facts not alleged would support a recovery; but this was followed by the more specific claim that the plaintiff had failed to prove that it had performed the contract declared on, either exactly or substantially. The particular claim might properly be considered by the superior court as modifying the general claim, and withdrawing any objection which might otherwise have been raised on the score of variance, provided a substantial performance were made out. The court, having found that there was a substantial to be put in good working order." The defendant claimed on the trial that, in order to . make such connections for hot water in such a house, and with such an arrangement of faucets, and put all in good working order, it was indispensable to provide a "circulation pipe," and offered the testimony of an expert to that effect. She had been present while the work was going on at her house, and had superintended it, but never before had suggested that there should be such a pipe. Judicial notice could properly be taken by the superior court both of what such a pipe is and that none is ordinarily used in plumbing a house. Its office is to create a circulating current of warm water from the boiler to the remotest faucet and back again. The pressure from the tank or mains must always drive the water from the boiler along the usual connecting pipes towards such outlets as may be provided, although it may reach them more slowly and at a lower temperature than if a return current were secured. The contract, though quite precise and full in its specifications, did not call in terms for a circulation pipe. It was for the court to construe it, in view of all the surrounding circumstances, including the size and character of the house, and the conduct of the defendant; and, so regarded, the conclusion was warranted that it did not include putting in a pipe of that description. Such a pipe may be a part of the plumbing to be put into a house where the proprietor has stipulated for the introduction of the most perfect system and the most complete apparatus known to modern art, but it does not follow that it was required by the terms of the contract in suit. Under the second count certain charges were made for work done in connection with a furnace, which had been put into the house under another contract between the parties, for a stipulated price, which the defendant had paid. Whether these charges were proper or not they had agreed, before the suit was brought, to leave to the determination of a third party, and he had given a decision in the pintiff's favor. This, though an informal proceeding, was in law an arbitration and award, and conclusive as such. There is no error. TORRANCE, C. J., and HALL and PRENTICE, JJ., concurred. HAMERSLEY, J. (concurring in result). The first count of the complaint states facts supporting a cause of action arising from the defendant's failure to pay the sum of money agreed upon in the plumbing contract when that sum became due by reason of the plaintiff's completion of the contract. The trial court held that for the purpose of supporting such a cause of action the plaintiff had substantially performed the plumbing contract. I think the court erred in so holding. There was not such a substantial compliance with the contract as gave the plaintiff a right of action based solely on the breach of the promise specified in the contract. It is true that the substantial performance of a contract is ordinarily a question of fact for the trial court; but when, as in this case, the conclusion of performance is inferred wholly from subordinate facts found and set forth in the record, which are plainly inconsistent with such inference, that conclusion involves an error in law. The facts found, however, do show that the plaintiff furnished the materials and rendered the services mentioned in the plumbing contract in most particulars in acIcordance with that contract. It is claimed, and perhaps rightly, that they also show that the defendant has accepted and retains the benefit of the plaintiff's work. Upon these facts a good cause of action has been proved. Under such circumstances the law imposes upon the defendant the duty of paying the plaintiff the value of his work, measured by the prices stated in the contract, less the damage to the defendant caused by the plaintiff's failure to fully perform the contract. It is evident that the practical difference between this cause of action and that arising upon a substantial performance of the contract is slight. Either may be supported and attacked by substantially the same evidence. Under the former system of pleading, when the two causes of action had to be enforced, if at all, through different and distinct forms of action, the difference was material. But now the only question is whether facts found supporting either cause of action come fairly within a statement of material facts contained in the complaint, or, if variant, whether that variance can be regarded as material after trial and judgment. The plaintiff's statement might well have been amended after trial, in view of the facts actually proved. It is suggested in the opinion of the court that the particular claims made by the defendant during the trial operate as a waiver, and that a judgment can be sustained upon the cause of action proved. The difference between the failure to pay for work done the price promised to be paid in a contract and the failure to pay for work done its actual value measured by the terms of the contract is not a very substantial one for practical purposes, and is no longer important as determining the form of an action. I incline to concur with hesitation in the result announced in the opinion. Under the second count the plaintiff claimed to recover for certain work done at defendant's request, and the defendant claimed that payment for this work was in cluded in the contract price for a furnace built by the plaintiff. In the contract the plaintiff agreed to "set furnace as low in cellar as necessary to secure owner from any fear of fire." The defendant claimed that by a true construction of the contract the plaintiff was bound to secure her from entertaining any fear of fire, however unfounded or unreasonable such fear might be. The court ruled that the plaintiff contracted to secure the owner against danger or any reasonable cause or fear of fire. This ruling is correct. The court finds that there was no danger and no reasonable cause of fear of fire, and this renders it unnecessary to consider the effect of the so-called "arbitration" which the defendant claimed in argument to have been improperly included in the finding. In other particulars I concur in the opinion. (74 Conn. 382) BRENNAN v. BERLIN IRON BRIDGE CO. (Supreme Court of Errors of Connecticut. Jan. 9, 1902.) MASTER AND SERVANT-PERSONAL INJURIES -PLEADINGS-DEFAULT - FINDINGS - VARIANCE-FELLOW SERVANTS - NEGLIGENCE EVIDENCE-CUSTOM. 1. Where, in an action for personal injuries, there was a default, and a hearing in damages, the allegations of the complaint are to be taken as true on appeal, unless found to be untrue by the trial court, or unless inconsistent with the special facts found. 2. A complaint by an employé for personal injuries alleged as the cause of the fall of a pile of timbers which injured plaintiff that they were insecurely piled, and were so allowed to remain through the negligence of a certain superintendent, whose duty it was to see them piled properly before putting inexperienced men to work near them, and that this superintendent was the only representative of defendant on the job. Defendant having suffered a default, there was a hearing in damages, and it was found that the superintendent was an experienced bridge builder sent by defendant as its representative, with full charge of the job and men; that he superintended and directed the piling; that he assisted the men; that he knew the timbers were liable to fall if not properly piled; that it would be necessary to move them one by one, and for laborers to work near them in removing them; and that it was his duty to know how they were piled. Held, that the facts found were not inconsistent with, and did not disprove, the allegations of the petition, and as on an appeal from a hearing of this kind such allegations are to be taken as true unless found untrue by the trial court, or inconsistent with the special findings, the judgment would not be disturbed. 3. The facts found did not show as a matter of law that the negligence of the superintendent was not with reference to a duty which the law imposed on defendant towards its employés, and did not show, therefore, that a holding that defendant had not proved that the plaintiff's injuries were caused by one standing in the relation of a co-employé, was incorrect. 4. Where defendant gave an experienced bridge builder full charge of a construction as its superintendent and representative, and he superintended and directed the piling of certain timbers, though he also assisted the men in the work, he was a vice principal, and not a fellow servant with a laborer engaged in the work. 5. Plaintiff, while employed by an iron company, was taken by his employer to where a gang of bridge men were at work, and told to do what their superintendent should direct. He did not know by which company such men were employed, and was not told that he was working for the bridge company, but was paid by the iron company, which in turn was paid by the bridge company for his services, and he considered himself subject to the orders of the iron company. Held, that he was not a fellow servant with the superintendent of the bridge gang, who was assisting him in certain work. 6. It was not error to refuse to allow the superintendent of the bridge gang to state whose duty it was to see that timbers falling and injuring plaintiff were properly piled, the court stating that defendant might give evidence of any instructions or rule in that regard. Appeal from superior court, New Haven county; John M. Thayer, Judge. Action by William Brennan against the Berlin Iron Bridge Company for personal injuries. Defendant suffered a default, and a hearing in damages was had, and facts found, and judgment for plaintiff, and defendant appeals. No error. upon them; the west tier consisting of three stringers; the top one being a long one, so placed that "the west faces were plumb," piled indiscriminately as regards length; said west tier, with the stakes under it, being from 41 to 48 inches high. The ground where the stringers were piled was substantially level. "It did not appear whether there was any rolling or unevenness of the surface where the car stakes were placed which might cause them to rock or tilt if the pressure upon the different ends should be increased, or if by the removal of some of the stringers from one end the pressure upon that end should be lessened. It was known to the defendant's superintendent, Bowen, that this must inevitably occur as the stringers were framed and removed to the trestle. The car stakes were apparently level when the pile was completed." Bowen was present, and superintended and directed the piling of the stringers, and assisted the men in piling them. "He ought to have known, and he did know, how the stringers were piled," and knew that they would be removed one at a time for framing. On the morning of the 20th of November, Certain questions connected with this case Bowen having asked Mr. Warner, the suhave been discussed in cases between the perintendent of the malleable company, for same parties reported in 71 Conn. 479, 42 two men, Warner called the plaintiff and Atl. 625, 72 Conn. 386, 44 Atl. 727, and 73 one McDonald, employés of the malleable Conn. 412, 47 Atl. 668. From the finding of company in their annealing room, and, gofacts at the last hearing upon the substitut- ing with the plaintiff where the bridge gang ed complaint it appeared that prior to No- were at work, told him to do what they vember 13, 1894, the defendant bridge com- should tell him to. On the 13th the plainpany made a contract with the Naugatuck tiff had been sent out a short time to help Malleable Iron Company by the terms of the bridge men, but did not work with them which the defendant was to construct for after that until the 20th. He knew the the malleable iron company a coal trestle gang were bridge men, but did not know to extend from the railroad track to the an- whether they were employed by the mallenealing room of the malleable company, con- able company or by a contractor. He was sisting of iron columns upon stone bases, not told and did not understand he was with wooden braces and crosspieces, and working for the bridge company as its emtwo parallel lines of wooden stringers upon ployé, or that his relation to the malleable the tops of the columns; said stringers be- company had been changed. He would ing of different lengths, the shorter from 13 have gone back to the factory to work at to 17 and the longer from 25 to 29 feet in any time upon the order of Mr Warner. length, and the longer ones weighing from He was paid by the malleable company for 1,200 to 1,500 pounds. It was agreed that the work he did for the bridge company, the the Malleable iron company should furnish latter paying the malleable company at a such laborers as the defendant might tem- slight advance, but without the knowledge porarily require in moving timbers, etc., and of the plaintiff. Plaintiff had worked for that the malleable iron company should be the malleable company several years as lapaid by the defendant for the time of such borer in the annealing room for $1.35 a day. laborers. The defendant began the con- On the afternoon of the 20th of November, struction of the trestle on November 13, Bowen directed the plaintiff and McDonald 1894, and sent "as its agent and superin- to help move to the trestle a stringer which tendent an experienced bridge builder," one had been framed, and was lying upon the Bowen, with a gang of three men. "Bowen ground on the west side of said south pile. had full charge of said job and the men," At this time four or five of the stringers and authority to employ other help if re- had been framed and removed from said quired, and himself assisted the men with south pile to the trestle, but the three formthe work. On the 17th of November the ing the west tier of said pile remained as stringers were unloaded from the cars and originally piled. In the work of removing piled in two piles. Those of the south pile, the stringer lying upon the ground west of near which plaintiff was hurt, were piled said south pile, Bowen placed the plaintiff upon three car stakes laid upon the ground, between the stringer and the west tier of three or four tiers of stringers being laid | said pile. As they began to move the string er, Bowen went away. They had moved it but two or three feet, when the top stringer of said west tier fell off, crushing the plaintiff's leg. What caused the stringer to fall was not proved. The defendant offered evidence to prove that the west faces of the stringers were plumb, and that it would have required the application of a force of more than 300 pounds to slide the top stringer from the one beneath it, and the court finds that to be true, provided the tier of stringers was upon a firm foundation, and that the one which fell was placed its entire length upon another of equal length. It is found that no negligence of the plaintiff caused the stringer to fall, or contributed to his injury; that the pile seemed safe to a person where the plaintiff was at work; and that he was not informed or cautioned regarding its condition, and had no knowledge or means of knowledge excepting as appears by said facts. The court found that the plaintiff was not totally disabled from earning wages by his injury. Plaintiff's counsel was permitted against the defendant's objection to ask of one Bronson as a witness what it would cost to purchase an annuity of $100 for one of plaintiff's age. This was asked for the purpose of showing what it would cost to furnish to the plaintiff an annuity, in case it should be found that his disability was total and permanent, for the amount which it was claimed to have been proved he could earn annually. Said Bowen was asked by defendant's counsel whose business it was to see that the timber was properly piled, and also whose business it was to see that the pile was left in a proper condition during the changing character of the pile when the men were taking off and replacing the timbers of the pile. Upon plaintiff's objection the court excluded these questions. Counsel for defendant stated that it was desired to show what the custom was. Counsel for plaintiff said there was no objection to showing what the custom was, and the court stated that, if there were any instructions or rule, the witness might state them. Against the claim of the defendant the court rendered judgment for substantial damages. William W. Hyde and Seymour C. Loomis, for appellant. John O'Neill and William Kennedy, for appellee. HALL, J. (after stating the facts). The principal questions in this case arise under the defendant's contention that the act of negligence complained of was that of a coemployé of the plaintiff. The complaint alleges as the cause of the fall of the timber by which the plaintiff was injured that when unloaded from the cars on the 17th of November the stringers were insecurely piled so that the top stringer in the west tier of the pile in question "would fall down from a slight touch or jar, and largely of its own weight," and that the timbers were thus insecurely piled, and so allowed to remain until the time of the accident, through the negligence of Bowen, whose duty it was to see that the timbers were properly piled, and to examine the pile before putting inexperienced men to work near it, and under whose supervision the timbers were piled, and who was "the only representative of the defendant on this job." These allegations are to be taken by us as true, unless they have been found to be untrue by the trial court upon the hearing in damages, or unless their truth be inconsistent with the special facts found. What caused the timber to fall is not found. That the record shows that the defendant failed to disprove the averments that the stringer fell because the timbers were insecurely piled, and that Bowen was negligent in not causing them to be securely piled, and in allowing them to remain thus insecurely piled, is too clear for discussion. The facts found tend to prove, rather than disprove, these allegations. The trial court held that the defendant had not proved that the plaintiff's injuries were caused by the negligence of any servant of the defendant standing in the relation of co-employé to the plaintiff. This ruling was correct, unless the facts found show as a matter of law both that the negligence of Bowen did not occur in connection with the discharge of a duty which the law imposed upon the defendant toward its employés, and also that the plaintiff was so far a co-employé with Bowen that the defendant was exempt from liability for the injury caused by Bowen's negligence. Does it appear from the record that the negligence of Bowen was not with reference to a duty which the defendant was required to perform? This question must be answered in the negative unless the facts proved show that the defendant, in the discharge of its duty towards its employés, was not required to see that the timbers were securely piled. It is found that Bowen was an experienced bridge builder; that he was sent by the defendant as its representative and as a superintendent, and given full charge of the job and men. He in fact superintended and directed the piling, though he also assisted the men in the work. He knew that the stringers were liable to fall if not properly piled; that it would be necessary to remove them one at a time for framing, and for laborers to work near the piles in removing the stringers to the trestle; and it is found to have been his duty to know how these stringers were piled. We are not called upon to say whether the facts before us clearly show that for the proper protection of those who were required to perform labor near these piles of timber it was the master's duty to superintend the piling of these stringers as they were taken from the cars, but only to decide whether it has been proved that such superintendence was not required. To sustain a judgment for substantial dam ages in a hearing of this character, it is sufficiently alleged in the complaint that the defendant was chargeable with knowledge of the unsafe condition of the pile, that the plaintiff had not equal means of knowledge with the defendant, and that the negligence which caused the accident was that of the principal. Upon the facts of record we cannot say that the trial court erred in holding that the defendant had not disproved these allegations. That it required the superintendence of an experienced person in order to properly pile these stringers under the circumstances, and that it was the duty of the defendant, for the proper protection of its employés who were to work near these piles, to see by such superintendence that the timbers were placed upon a level and firm foundation; that each timber was fully supported by the one beneath it; and that the timbers were so securely piled that, upon the removal of some of them upon one side of the pile, a heavy timber upon the top of the tier upon the other side would not be liable to fall from a slight touch or jar; and that the defendant failed to perform such duty, are assumptions not at variance with the facts found. Considering the character of the duty in respect to which Bowen was negligent, which is the correct test to apply in order to determine whether his negligence was that of a vice principal or of a fellow servant (Kelly v. Steamboat Co., 74 Conn. 50 Atl. 871),-we think the facts fail to show that the accident was caused by the negligence of a co-servant with the plaintiff, assuming for the time that the plaintiff was the servant of the defendant within the meaning of the fellow-servant rule. In McElligott v. Randolph, 61 Conn. 157-163, 22 Atl. 1094, 29 Am. St. Rep. 181, it was held that the failure of the defendant's master mechanic to properly superintend the removal of a section of a large gear wheel from the wheel pit, whereby the plaintiff was injured, was the negligence of the employer; and in Gerrish v. Ice Co., 63 Conn. 9-18, 27 Atl. 235, that the negligence of the defendant's superintendent, who had charge of the work of raising ice from a lake to an ice house by means of an elevator operated by a steam engine, in failing to notify the engineer that the plaintiff was upon the elevator, and in not leaving a person, during the superintendent's temporary absence, in charge of the bell cord for signaling the engineer, was the negligence of the master. It has been held in other jurisdictions that acts of negligence similar to that described in the complaint may be regarded as the negligence of the master. Stevens v. Knitting Co., 69 Hun, 375, 23 N. Y. Supp. 656; Zintek v. Mill Co., 9 Wash. 395, 37 Pac. 340; Babcock v. Railroad Co., 150 Mass. 467, 23 N. E. 325; McCauley v. Norcross, 155 Mass. 584, 30 N. E. 464; Baldwin v. Railroad Co., 75 Iowa, 297, 39 N. W. 507, 9 Am. St. Rep. 479; Id., 68 Iowa, 37, 25 N. W. 918; Pilling v. Machine Co., 19 R. I. 666, 36 Atl. 130; Mayton v. Sonnefield (Tex. Civ. App.) 48 S. W. 608; Lumber Co. v. Duggan, 182 Ill. 218, 54 N. E. 1002. But if the negligence of Bowen were not that of a vice principal, was the plaintiff so far an employé of the defendant as to entitle the defendant to exemption from liability under the fellow-servant law? The complaint states the facts respecting the service of the plaintiff without alleging whether he was the servant of the malleable iron company or of the defendant. The trial court made no ruling upon this question other than that by the facts proved the defendant had failed to show that the plaintiff's injury was caused by the negligence of a fellow servant. The plaintiff was employed by the malleable iron company at fixed wages as a laborer in their annealing room, and received all his pay from that company. At the direction of his employer he temporarily assisted the bridge men, without knowing that they were not in the employ of the malleable company, and without understanding that he was acting as a servant of the bridge company, or that his relation to the malleable company had been changed. This was by an arrangement between the two companies of which the plaintiff was ignorant. He considered himself at all time, as he was in fact, under the control of Warner, the superintendent of the malleable company, and he obeyed the directions of Bowen only because told to do so by Warner. The malleable company did not lose control over the plaintiff. Warner might at any time have recalled him, or put another workman in his place. The defendant had no power to discharge the plaintiff beyond the right to forbid him from laboring on the bridge work. The foundation of the fellow-servant rule is that by the contract of employment the servant assumes the risk of perils arising from the negligence of competent fellow servants. Zeigler v. Railroad Co., 52 Conn. 543-556; Sullivan v. Railroad Co., 62 Conn. 209-215, 25 Atl. 711. As in the case at bar there were no contract relations between the plaintiff and defendant, and the plaintiff did not intentionally enter the defendant's employ, and the proceeding was but a temporary transfer by the malleable company of the services of the plaintiff to the defendant, without any knowledge on the plaintiff's part of any change of masters, the plaintiff did not become so far the defendant's servant as to assume the risk of the negligence of its employés, or as to justly entitle the defendant to immunity from the consequences of the negligence of its own servants. The plaintiff was only in a limited sense and indirectly the defendant's servant from the fact that he was the servant of the malleable company, with which the defendant had con tracted. In the case of Zeigler v. Railroad Co., supra, the facts were quite similar to those in the case at bar. Zeigler was a brakeman in the employ of the Shepaug |