such seller is lost, if it appears that he is in reality an agent only and the real principal is disclosed before the goods are delivered or payment made.

(Decided April 19, 1887.)

2 Pars. Cont. 743; Brown v. Morris, 83 N. C. 251, 254.

The owner must have authorized the factor to sell them as his own, or consented thereto. 2 Pars. Cont. 743; Wharton, Cont. § 1023; Story, Agency, 390, note; Brown v. Morris, 83

Court at General Term in the First Department, affirming a judgment of the Circuit on a verdict for plaintiffs in an action to recover a balance due for lumber belonging to plaintiffs, sold by defendants. Affirmed.

The facts and questions raised appear from the opinion.

Mr. Esek Cowen, with Mr. Joseph W. Howe, for appellants:

v. Imperial Ottoman Bank, L. R. 9 C. P. 38. If the character of the seller is in doubt, the purchaser is bound to make inquiries.

Miller v. Lea, 35 Md. 326; Wright v. Cabot, 89 N. Y. 570, 574; Bliss v. Bliss, 7 Bosw. 346-7. The purchaser must have been misled to his prejudice.

Wright v. Cabot, 89 N. Y. 570, 574; Henry v. Marvin, 3 E. D. Smith, 71, 74; White v. Jaudon, 9 Bosw. 415.

Finch, J., delivered the opinion of the court:

The court, in charging the jury and in ruling upon the proposition of the defense, relied upon the case of Wright v. Cabot, 89 N. Y. 574, which was in part twice quoted to the jury. In that case the sellers had, during four months of negotiation prior to the sale to the defendants, disclosed their agency; and the case was not an authority for the position it was cited to support.

The contract, deal or transaction in this case was complete when, first, the defendants entered into a binding contract with Hall & Co. to take from them 900,000 feet of lumber; and, second, when Hall & Co., without the knowledge or consent of the defendants, elected to fill that order with the plaintiffs' lumber. The contract was then made and the liabilities of the several parties fixed. As the undisclosed principals of Hall & Co. the plaintiffs were parties to the contract of sale, and could enforce it against the defendants.

Story, Agency, SS 418, 420.

Mr. Edward C. James, for respondents: As to the right of an undisclosed principal to sue, see:

Wright v. Cabot, 89 N. Y. 570; Taintor v. Prendergast, 3 Hill, 72; Leverick v. Meigs, 1 Cow. 645, 663-670; Union India Rubber Co. v. Tomlinson, 1 E. D. Smith, 364.

As to the right of a purchaser to offset agent's indebtedness, see:

Wright v. Cabot, 89 N. Y. 570, 574, 575; Paley, Agency, p. 331; 2 Pars. Cont. p. 743; Barbour, Set-off, pp. 135-6; Moore v. Clementson, 2 Camp. N. P. 22; Rabone v. Williams, 7 Term Rep. 360, note; Hogan v. Shorb, 24 Wend. 463, Pratt v. Collins, 20 Hun, 126, 128. The factor must have sold the goods as his

won.

The material facts in the case are substantially undisputed. For some years previous to 1875 the defendants had been in the habit of purchasing lumber in Canada of Hall & Co., dealing with that firm as owners and in their own name. In the process a large indebtedness had accrued in favor of the defendants, which the parties expected would be reduced by the sale of a quantity of shooks consigned by Hall & Co. to the defendants to be sold by them on commission. While the shooks re

to stood unbalanced or unaffected by their proceeds, and on or about September 23, 1875, the defendants made a contract with Hall & Co. for the sale and delivery to them of 600,000 feet of specified lumber upon a credit of three months. The order was very soon increased to 900,000 feet which, at the agreed price, would have amounted to more than the outstanding debt, irrespective of the proceeds of the unsold shooks.

This contract of purchase and sale was made binding by telegrams and letters which sufficiently manifested the terms of the agreement. The agreement was of course executory and remained to be performed, the respective parties having only the right to compel performance or recover damages for a breach. Before any of the lumber arrived at New York, and before title to any of it had vested in the defendants, the latter were in substance informed that the lumber shipped and on the way was not the property of Hall & Co., but was owned by other parties for whom Hall & Co. were acting as agents. While some criticism is expended upon the manner and tenor of this notification, we deem it quite sufficient to charge defendants with a knowledge that Hall & Co. were not the owners of the lumber with which they were proposing to fulfil their contract. The defendants accepted the lumber with this knowledge. It turns out that the insolvency of Hall & Co., and a seriously diminished return from the sale of the shooks, have left a portion of the debt due from Hall & Co. unpaid, which balance the defendants claim to offset in this action brought by the real owners of the lumber; and whether that offset should be allowed or rejected, as the courts below have determined, is the principal question presented by this appeal.

The reasoning of the learned counsel for the

did not break their contract with Hall & Co. if they stand upon such refusal. But, being at liberty to refuse, and to demand performance by Hall & Co., under the existing circumstances and relations, in strict accord with their contract, they were also at liberty to accept the lumber with the necessary consequence that the whole purchase price should become due to the

& Co. except as agents for that owner.

We think the error of this reasoning lies in the assumption that the defendants obtained a right of set-off at the moment the contract was made. We are unable to admit that proposition. The contract was executory. While it remained such it created no debt due to Hall & Co., against which there could be a set-off. Out of that contract a debt due from the defendants might or might not arise; and until it did there was nothing upon which a counter demand could be applied. The defendants were not at once liable for the purchase price of the lumber. Until its delivery or tender, in accordance with the contract terms, the vendees were not bound to pay or give their note, and until those conditions performed created a debt there was none so existing as even to raise the question of offset.

If the vendors did not perform the vendees would owe them nothing for the lumber, but on the contrary would merely have a further claim for breach of contract. At the date of the contract the added fact must be noted that the real claim of the defendants was unknown and unliquidated, and could not be finally ascertained until the proceeds of the shooks were determined by a sale. The debt was only liquidated in part. It was subject to reduction by the property already received from Hall & Co., but the proceeds of which were unknown. The right of off-set, therefore, did not and could not arise at the date of the contract, and sprang up, if at all, at the date of delivery. But, before that, notice of another ownership intervened. When the lumber came, and the vendee saw that the vendor, on a contract made with him as owner, was seeking to perform as agent, and instead of fulfilling his own obligation was substituting performance by another, such vendee could refuse the substituted performance in any case where his rights or interests would be injuriously affected by the change.

Brett & Co. had been long dealing with Hall & Co. as owners, and in the process mutual accounts had been steadily debited and credited and applied one upon the other. When the purchase was made, the balance, so far as ascertained, was largely against the vendors and may have been made either as to quantity or price for that very reason. In such a case the vendees undoubtedly had a right to refuse to

And so it follows that the authorities stand upon just principles when they assert that the set-off is lost if the principal is disclosed before the goods are delivered or the payment made. The vendee is not then acting in the dark, and has his liberty of action remaining, at least, where his interests may be affected by the change of creditors, and so can have no equity to use the goods of one man to pay the debt of another. If he refuses, as he may, his contract relation with his vendor remains, and all his rights and remedies under it. But if he accepts, he cannot complain that his rights are changed and harmed, since the acceptance is his free and voluntary act, made with full knowledge and without being misled.

Certain questions of evidence remain to be briefly considered. One of the defendants was asked whether he ever knew, or supposed, or suspected that Hall & Co. were not the principals in the transaction. The question was certainly too broad. It could not have been truthfully answered in the negative, for the witness admits that he heard of plaintiffs' claim directly from them in April, 1876. Indeed, he was permitted to answer that he knew of no such agency before February of that year, which covered the material portion of the time.

He was also asked who he understood to be the owner of the lumber at the time of the sale and delivery. The facts as to the notice given were proved. His understanding or misunderstanding of them could not alter what they disclosed. The letter of February 10, 1876, was not objected to because written by Cooper. When offered it was shown to the witness and he was asked "Is that the signature of Brett, Son & Co. by Cooper?" and answered, “It is.” The objection was immaterial and incompetent, and as being subsequent to this lumber transaction. There was no suggestion that the letter was not that of the firm, or was written without their knowledge or authority, which appears to be the present ground of complaint.

Other questions we have examined, but need not discuss.

The judgment should be affirmed, with costs. All concur.

Jay ANTHONY, Respt.,

v.

Joseph LEERET et al., Appts.

Plaintiff was employed by defendants, in making wooden boxes, on the second floor of their manufactory. The lumber used was planed on the floor below, and passed up to the second floor through a trap door made for the purpose, over

(Decided June 7, 1887.)

The rule that a master is bound to furnish suitable and safe machinery for his servants is clear; but it is also settled by authority that the master may, as against his servant, choose his

ent to ordinary observation or as obvious to the servant as to the master, the servant assumes it.

De Forest v. Jewett, 88 N. Y. 264; Gibson v.

Court at General Term in the Fourth Department, affirming a judgment of the Onondaga Circuit on a verdict for plaintiff of $5,000 damages in an action to recover for personal injuries alleged to have been caused by negligence. Reversed.

The facts and questions raised appear from the opinion.

Mr. T. K. Fuller, for appellants:

The immediate and sole cause of the plaintiff's injuries was the careless, unauthorized and negligent act of a coservant, engaged in the same general employment; and the plaintiff cannot recover.

Faulkner v. Erie R. Co. 49 Barb. 324; Henry v. Staten Island R. Co. 81 N. Y. 373; Crispin v. Babbitt, 81 N. Y. 516; Slater v. Jewett, 12 N. Y. Week. Dig. 129; Stringham v. Stewart, 27 Hun, 562; Marcin v. Muller, 25 Hun, 163; Karl v. Maillard, 3 Bosw. 591; Malone v. Hathaway, 64 N. Y. 5; Wright v. N. Y. Cent. R. R. Co. 25 N. Y. 562; Hofnagle v. N. Y. Cent, etc. R. R. Co. 55 N. Y. 608; Murphy v. Boston etc. R. R. Co. 88 N. Y. 146.

Plaintiff, by accepting and continuing in the service of the defendants, with the knowledge of the construction, location and use of the trap door, assumed the risks arising therefrom.

Gibson v. Erie R. Co. 63 N. Y. 449; Erans v. Lake Shore etc. R. Co. 12 Hun, 289; De Forest v. Jewett, 88 N. Y. 264; Owen v. N. Y. Cent. R. R. Co, 1 Lans. 108; Stoutenberg v. Dunbar Box & Lumber Co. 13 N. Y. Week. Dig. 445; Salters v. Del. & Hud. Canal Co. 3 Hun, 338; Kelley v. Silver Spring Co. 34 Am. Rep. 615; Lovejoy v. Boston etc. R. R. Corp. 28 Am. Rep. 206.

The servant is bound to see patent and obvious defects in machinery or other instrumentalities of the business, and when he goes into the service of a person or continues therein, knowing that the instrumentalities employed are unsafe or dangerous, he takes the risk of their use upon himself, and cannot hold the master responsible for injuries resulting therefrom.

Wood, Master & S. § 335; Dynen v. Leach, 26 L. J. 222; Brown v. Accrington Cotton Spin ning Mfg. Co. 3 Hurl. & C. 511; Seymour v.

96; Ecans v. Lake Shore etc. R. Co. 12 Hun, 289; Stoutenberg v. Dunbar Box & Lumber Co. 13 N. Y. Week. Dig. 445; Kesley v. Sanderson Steel Co. 20 N. Y. Week. Dig. 192; Powers v. N. Y. etc. R. R. Co. 98 N. Y. 274; Haas v. Buffalo etc. R. R. Co. 24 Week. Dig. 69.

A servant cannot cail upon his master to make alterations to secure greater safety in appliances with which the servant is familiar.

De Forest v. Jewett, Kesley v. Sanderson Steel Co. and Gibson v. Erie R. Co. supra.

When a servant accepts service with knowledge of the character and position of structures, from which employees might be liable to receive injury, he cannot call upon his master to make alterations to secure greater safety, or in case of injury hold him liable.

Gibson v. Erie R. Co. 63 N. Y. 449; Sweeney v. Berlin & Jones Envelope Co. 2 Cent. Rep. 457; S. C. 101 N. Y. 520; Williams v. Delaware etc. R. R. Co. 39 Hun, 432.

As showing that this case should be disposed of upon the ground of the risk being assumed by plaintiff, attention is respectfully called to the striking analogy which it bears in its facts and circumstances to the following cases, which were disposed of upon that ground:

Karl v. Maillard, 3 Bosw. 591; Gibson v. Erie R. Co., De Forest v. Jewett, and Sweeney v. Berlin & Jones Envelope Co. supra; Kennedy v. Manhattan R. Co. 33 Hun, 457.

Messrs. Waters & McLennan, for respondent:

The fact that the defendants constructed a way for their employees to travel in, and required them to use that way, the way being solely for defendants' own use and convenience, and maintained in the area beneath it a pit, would seem to bring the case within the principle of Congreve v. Smith, 18 N. Y. 79, requiring the defendants to keep the way over the pit absolutely safe, and hence render them liable for any neglect to keep the way absolutely safe.

The rule that an employee takes the natural risks of his employment has no application if the employer omits to provide a safe working place, so that the injury is not entirely caused by the negligence of the fellow servant, but, in

part, at least, is the result of that omission of duty. In such a case the negligence of the coservant will not exonerate the employer from the consequences of his own default.

Ellis v. New York etc. R. R. Co. 95 N. Y. 546, 552.

The defendants owed to the plaintiff the duty of furnishing him with a safe and proper place in which to prosecute his work, and safe and secure appliances, and skillful and competent workmen to assist him.

Pantzar v. Tilly Foster Iron Min. Co. 99 N. Y. 368; Stringham v. Stewart, 1 Cent. Rep. 779, 100 N. Y. 516; Plank v. N. Y. Cent, etc. R. R. Co. 60 N. Y. 607.

No one of these duties can be delegated by the master to any servant so as to exonerate the master from responsibility to another servant who has been injured by its nonperformance. Pantzar v. Tilly Foster Iron Min. Co. 99 N. Y. 368.

Neither is the master excused from such liability by the fact that the negligence of a fellow servant of the plaintiff may have contributed to the injury.

Stringham v. Stewart, supra.

The degree of care and vigilance which the defendants owed to the plaintiff is expressed by the phrase," the highest degree of care and prudence; the utmost human skill and foresight." Coddington v. Brooklyn C. R. R. Co. 2 Čent. Rep. 913, 102 N. Y. 66; Kelsey v. Barney, 12

N. Y. 425.

The duty of keeping the pit covered while plaintiff was necessarily using the way as a way and as a working place, and until notice that it was about to be changed into a hauling place, was a duty of the master which could not be delegated; the defective construction made this duty imperative.

Fuller v. Jewcett, 80 N. Y. 46.

The rule that the servant assumes all the perils which belong to the work itself does not and should not apply to accidents or injuries resulting from extrinsic causes, and circumstances which cannot be foreseen by him, and which, by the exercise of ordinary care and caution, he could not anticipate and prevent.

Ryan v. Fowler, 24 N. Y. 410.

The rule which excuses a master from liability to a servant for injuries caused by the negligence of a coservant presupposes that the master has performed the duties which the law imposes upon him, and that no negligence in this respect contributed to the injury.

Stringham v. Stewart, supra.

The negligence of Schmidt was defendants' negligence and the acts of the servant were defendants' acts, whether he failed from lack of ability or lack of vigilance.

Mott v. Consumers Ice Co. 73 N. Y. 543.

Andrews, J., delivered the opinion of the

court:

The plaintiff by the lamentable accident which is the subject of this action, has sustained a most severe and probably permanent injury. The question which we are to determine respects the liability of the defendants on whose premises it happened and between whom and the plaintiff existed at the time the relation of master and servant. The basis of the claim to charge the defendants with the consequences

of the accident is negligence. The jury have found upon this issue in favor of the plaintiff. We are called upon to determine whether the evidence supports a recovery and justifies the judgment rendered.

The defendants were engaged in the manufacture of boxes and other articles from wood, and for the purposes of their business occupied a building of two stories, in which the various processes of dressing rough lumber, cutting it into suitable lengths and forms, and manufacturing the same into boxes and other articles, were conducted. The planing machines were on the first floor and the men employed in this department were in charge of a foreman. The saws and cutting machines were on the second floor over the planers, and the lumber after it had been planed in the room below was passed up by men employed in that room to the upper room through a trap door in the floor of the second story, and there piled on either side the space between the trap door and the north and south walls of the building, leaving a space or alley way between the ends of the piles.

The cutting machines were near the north wall, and the planed lumber was taken from the piles to the cutting machines and cut into the lengths and forms required. The west side of the second story was used as the nailing room, in which workmen were employed in putting together pieces obtained from the cutting room and making them into boxes. Each nailer procured the pieces he needed for his particular work by passing from the nailing room through a door in the partition dividing the nailing room from the cutting room, and thence through the passage way made by the two piles of lumber to the cutting machine, where they selected an armful of pieces and took them by the same passage way to the nailing room.

The trap door was in the passage way. It was constructed of two thicknesses of boards with cleats, was quite heavy, weighing, as stated by one witness, fifty pounds, and swung to the north, and in this door on the top was a staple and ring for raising it from above. The opening in the floor was about three feet square. The trap door was firm and solid, and it is not. claimed that it was out of repair or was in any way defective.

The plaintiff was a nailer in the box room and had been engaged in this business in this place for twenty-two months prior to the accident. On the occasion of the injury he was returning from the cutting room through the passage way to the nailing room, carrying in arms a large load of pieces, and was in the act of stepping upon the trap door when it was suddenly and without notice thrown open from below, and he fell with his load to the lower floor, sustaining the injuries complained of.

The trap door was placed in the floor seven or eight years before the accident. It was conveniently located for the purpose designed, and was placed there to avoid the necessity of carrying the planed lumber to the second story by the stairways on the outside of the building. It was shown that about two years prior to the accident in question a boy fell through the opening, but fortunately he was not injured. It does not appear how the door came to be open on that occasion. This incident, how