DUNBAR, J. This is an action for damages for personal injuries sustained by plaintiff while in the employ of the defendant and in defendant's sawmill. The wharf or flooring of the mill yard surrounding the mill was 600 or 700 feet long and about 90 feet wide. It was constructed of floor planking, 3 inches thick, laid upon stringers, resting upon piling, the stringers being 2 feet apart, and had been in constant use for about 21⁄2 years prior to the accident. The lumber or product of the mill had to be trucked through an alleyway which led immediately in front of the door of the office which was occupied by defendant's agent, Mr. Fowle. Plaintiff was employed to truck and handle lumber in this mill. On the 24th of May, 1893, plaintiff, with other hired men, was engaged in trucking lumber from the mill across the wharf, to be loaded into cars for shipment. The lumber which was being handled was planed on both sides, and it was the custom, presumably under the direction of the agent, to pile the lumber high up on the trucks; and the lumber, being planed as above described, would slip easily, and it was somewhat difficult to keep it from sliding from the trucks. By the piling of timber and lumber along the sides where the truck lay there was a clear space of only about 10 feet in width, the truck being about 6 feet wide. On the said 24th day of May, while a truck load of lumber was passing through the alley nearly in front of the office door above mentioned, one of the truck wheels broke through the planking of the alley or wharf, and the lumber was precipitated from the truck, and a serious accident at that time was narrowly avoided, one of the men having the heel of his boot caught and wrenched off by the lumber. Either that evening or the next day the hole in the wharf was repaired. The repairs were made by cutting off the broken plank the length of the width of the stringers, being two feet; and the evidence is conflicting whether a new piece the full width of the planking, two feet long, was inserted, or a new piece two feet long and about half the width of the plank, though we do not consider this discrepancy material. On the next day, the 26th of May, while plaintiff and a number of the employés were engaged in carting this slippery lumber along the same alley, the truck broke through the flooring, and precipitated the lumber upon plaintiff, from which he sustained the injuries com

plained of. This lumber was piled up high on the trucks, and was held there by the men putting their hands on it, walking along by the side of the truck, and pushing it and holding the lumber on at the same time. The case was tried by a jury, and a judgment rendered in favor of the plaintiff for $6,000, the action having been for $10,000. A demurrer was interposed to the complaint for the reason that it failed to state a cause of action, in that, while it alleged that the defendant knew of the defects and dangerous character of the roadway, and that plaintiff had no knowledge or notice thereof, it did no state that plaintiff could not have ascertained the facts upon reasonable inquiry. This demurrer was denied by the court. We think the complaint went far enough in the allegations of negligence on the part of the defendant, and it has been uniformly decided by this court that the question of contributory negligence is a matter of defense to be pleaded by the defendant, and that it need not be negatived by the complaint; and in all other respects we think the complaint a good

one.

Some objection is made by the appellant to the allegations of the complaint in relation to the earning capacity of the plaintiff and the wages that defendant was paying plaintiff at the particular time of the injury; but, without passing upon the sufficiency of the complaint in this respect, we are satisfied that, if the complaint was wrong, all the defects were cured by the court by refusing to allow the plaintiff to prove his pecuniary standing or means.

There are a great many errors assigned by the appellant, but it seems to us that this case narrows itself down to the question of whether or not the defendant had exercised the proper degree of prudence in mending the break in the wharf which was brought to its knowledge, and which it attempted to mend. It is an elementary proposition, which does not call for citations of authority, that the master must furnish a safe place in which he requires his servants to work, and that he must furnish them safe appliances. He is, of course, not bound to insure the employé, but he is bound to use reasonable care in the selection and construction of the machinery and the appliances. It is conceded by the respondent that Mr. Fowle is the vice principal of the company. Mr. Fowle testifies that he examined the break made on the 24th of May, and that it was caused by a shake or pitch seam, and that it did not extend beyond the mended portion of the plank; that he examined the plank where it was sawed off, and that it was sound, and that these shakes or pitch seams, caused by the shaking of the tree while it was growing, were blind defects, which could not be seen or cured. If this testimony were undisputed, it is doubtful if such negligence could be attributed to the defendant as would warrant a recovery in

this case; but the overwhelming weight of testimony was to the contrary. Charles Terrill and Swan Johnson both testified that they examined the plank where it was broken the first time, and they found it, in the language of the witnesses, "rotten"; and witness Peterson testified that he examined the plank where it was broken the second time, and it was rotten at that place. It must be borne in mind that the second break occurred right at the end of the new piece of lumber which had been put in to mend the first break. This is testified to oy Fowle on the part of the defense and by Lynn and Peterson, witnesses for the plaintiff. It seems that just as the car wheel left the new piece of lumber and passed onto the end of the old plank the break occurred, and that it occurred right next to a stringer. It seems to us from the whole testimony in this case that the jury were justified in coming to the conclusion that the plank was decayed at the place of the last break, and that that decayed condition existed or was a continuation of the decayed condition of the plank where it was first broken; and the fact that the attention of the defendant had been called to the defect in the plank by the first break, and that it repaired the break in such a careless and imprudent manner as it did, justifies the conclusion that it was guilty of culpable negligence; such negligence, at least, as renders it liable for any damages which legitimately flow from its act. This is about all that can be said in this

will not enable the appellate court to consider it as though it had been settled without amendment.

2. A finding in a suit to cancel a note as executed without consideration, that the note was based on a sufficient consideration, will not be disturbed as against the evidence, the existence of a consideration being testified to by defendant and denied by plaintiff.

3. Where the consideration for a note sued on is alleged to be the settlement of an account between the parties involving numerous transactions, the court is not required at the request of plaintiff to find what items entered into the account.

Appeal from superior court, Pacific county; Richard K. Boney, Judge pro tem. Action by Frank Scott against J. Frank Bourn. There was a judgment for defendant, and plaintiff appeals. Affirmed.

Edward F. Hunter, for appellant. John H. Smith & Bro., for respondent.

HOYT, C. J. The record in this case is in such shape that it has been with great difficulty that the real controversy between the parties could be determined, and we would probably be justified in affirming the judgment for the reason that it does not sufficiently appear from the record what particular errors on the part of the trial court are relied upon for reversal. But since, by the aid of the brief of appellant, we have been able to discover what we deem to be the questions which were material to a correct determination of the controversy between the parties, we can overlook the imperfections in the record, and examine the rulings upon these questions.

The first complaint made by the appellant is that the trial court comitted error in amending the proposed statement of facts before settlement, and he contends that we should consider it as though it had been settled without such amendment. This we cannot do. If the court wrongfully refused to settle a proper statement of facts, the remedy of appellant was by mandamus to compel it to do so. Until a statement has been settled by the judge, it cannot be considered upon appeal, however clear may have been the right of appellant to have it settled as proposed. From the pleadings and the undisputed proofs, it appeared that the plaintiff and defendant had numerous business transactions together, commencing some time in January, 1890, and continuing until about February 24, 1891; that on said 24ta day of February the plaintiff made to the defendant a promissory note for the sum of $6,000, payable one day after date, with interest at the rate of 10 per cent. per annum; and the material question upon which the rights of the parties depended was as to the force to be given to this note. On the part of the plaintiff it was contended that it was given without consideration, to enable the defendant to avail himself of an interest in certain moneys which were expected to be paid upon a contract held by the plain

their favor. Whatever the fact may be in this particular, we think the respondents are precluded from raising the question. The basis of the disposition of the former cause was that the claim was a valid one, and that its validity had been established. Upon that basis it was held that the relator, in bringing the suit against the town upon said claim, had mistaken his remedy, and that he should have resorted to mandamus. The action of the lower court in dismissing his cause was affirmed, whereupon this second proceeding was instituted. No mention is made in the opinion rendered in that case that the cause had been disposed of in the superior court upon a demurrer to the complaint, and we will not at this time look into the record to determine the fact. If the respondents were dissatisfied with the facts as assumed by the court in that cause, they should then have applied for a correction or modification of the opinion in that particular, and not have allowed the same to become the law of the case. Not only was that not done, but the argument of the appeal in the present cause upon the part of the relator was based upon the ground that the legality of the claim had been established and settled in the prior proceeding. No claim was made by the respondents, in their brief, that said action had been disposed of upon a demurrer, leaving the merits of the controversy unsettled, and, even if such matters were available at that time, the failure of the respondents to present their claims in their brief would also preclude them from raising the point in a petition for a rehearing. Rehearing denied.

signed by two makers. The undisputed proof showed that no demand for payment had been made upon one of the makers at the time notice of dishonor was sought to be given to the indorser. It further appeared that all the parties to the note lived in the city of Seattle; that the appellant had a place of business therein, well known to the bank with which the note was left for collection; that no attempt was made by said bank acting for the owner of the note, or by any one else, to serve personally upon the appellant notice of the dishonor of the note. The only attempt to give such notice was to deposit it in the post office, directed to the appellant at Seattle, without giving, as a part of such direction, the street or number in said city to which it should be delivered. For the reason that it appeared from these undisputed facts that the necessary steps had not been taken to charge the appellant as an indorser of the note, he, at the close of the testimony, moved the court for a judgment in his favor. This motion was denied, and the cause submitted to the jury, under instructions which authorized a verdict for the plaintiff if it was found, among other facts, that presentment for payment to one of the makers was made upon the day the note fell due, and that notice of dishonor was deposited in the post office, addressed to the indorser, so that, in the ordinary course, it should have reached him on the day that the note was dishonored, or the day after. The verdict was for the plaintiff, and judgment was duly entered thereon.

JOINT AND SEVERAL NOTE-DEMAND-NOTICE OF DISHONOR BY MAIL.

1. Failure to present a note with joint and several makers to each of the makers for payment will discharge the indorsees.

2. Where an indorsee and maker of a note live in the same city, depositing a notice of dishonor in the mail addressed to the indorsee at the city without the street and number of his residence, is not personal service of such notice. Appeal from superior court, King county; T. J. Humes, Judge.

Action by W. C. Benedict against Arthur Schmieg and Fremont Cole, as makers of, and J. A. and A. C. Freeborn, as indorsers on, a promissory note. From a judgment for plaintiff, defendant A. C. Freeborn appeals. Reversed.

sary, or if the deposit in the post office of a notice of dishonor, directed generally to the indorser living in the same city, was insufficient, the judgment must be reversed; and, if the judgment is reversed for either of these reasons, the action should be dismissed as to appellant, unless by some affirmative action on his part, shown by the proofs, he had made himself liable to pay the note. There was some testimony tending to show that, at the time the note was discounted, he said that he would see it paid; but there was nothing tending to show that, at any time after it became due, he made any promise in relation to its payment.

Any statement that

he may have made at the time he discounted the note which did not amount to an express waiver of demand and notice could add nothing to the contract which he entered into by indorsing it. That the note must be presented to each of the "joint" makers in order that an indorser may be charged is conceded by the respondent, but it is claimed that presentment to one of the makers of a note

HOYT, C. J. Appellant was sued as an indorser of a note joint and several in form,

ground of this contention is that the holder of such a note may, at his option, treat it as the several note of any one of the makers; that the indorsement must be presumed to

have been made in view of this right; and that, for that reason, the holder would bind the indorser by presenting it to any one of the makers whose several note he saw fit to consider it. It is doubtful whether the single contract of the indorser can be divided so as to, in fact, constitute as many separate contracts as there are makers to the note. It would be more reasonable to presume that the contract of indorsement was in reference to the note as an entirety, and was made upon the credit of all of the makers, and that the right of the holder to enforce it as the several contract of one of them does not include the right to divide the single contract of the indorser. It is suggested that, by reason of different places of residence, it is frequently impossible to present the note for payment to each of the several makers on the day the note becomes due. But this objection applies as well to joint makers as to those joint and several. If the makers are so situated that it is not reasonable to require a presentment to each of them, that fact will excuse such presentment.

The respondent has cited but one case which fully sustains his contention,-that of Harris v. Clark, 10 Ohio, 5,-and the reasoning of the court in that was upon grounds conceded to be untenable. The reason there given why a presentment to one maker was sufficient was that, by signing the note together, the several makers constituted themselves, so far as the making of the note was concerned, partners, and for that reason service upon one, under well-settled general rules, was a service upon all. Respondent also cites some of the text writers, but, with the single exception of Judge Story, there is no attempt by any of them to give any reason for their claim that presentment to one of several makers should be sufficient, and even that distinguished author and jurist does no more than refer to the case above cited, and say that, though the decision therein could not be sustained upon the ground stated in the opinion, it might be upon the theory that it was only necessary to make presentment to one of the makers of a note joint and several in form.

The appellant cites a large number of cases tending to establish the rule that presentment to each of the makers is necessary. The respondent claims that but one of these is in point, for the reason that it does not appear that the notes which were under consideration were joint and several in form. As to some of them, this is, no doubt, true; but the fact that in none was there any statement that tended to show that there was any difference in the presentment necessary to charge an indorser by reason of the "joint" or "joint and several" form of the note showed that no distinction on that account was recognized. In many of the cases in which from the facts it appears that the note was joint and several in form the court speaks of the makers as "joint," from which it is clear that, by the use of the

word "joint," it was not intended to refer to the nature of the liability of such makers, but only to the fact that they had joined in making the note. And, from a careful reading of the opinions in other cases, it is probable that the word "joint" was used in the same sense. Hence much force is taken from the argument to the effect that none of the cases which speak of "joint" makers, and hold that presentment must be made to all of them, are to be taken as authority in favor of the contention of appellant. It is conceded that in the case of Shutts v. Fingar, 100 N. Y. 539, 3 N. E. 588, the court was considering a note joint and several in form, and that the decision fully supports the contention of the appellant. The case of Bank v. Willis, 8 Metc. (Mass.) 504, not cited in the brief of appellant, is also directly in point. The prin cipal question decided was as to whether one of the parties to the note was a maker or indorser. The court held that he was a maker; that he was one of the joint and several makers; and further held that, for the reason that no presentment had been made to him, the indorsers were discharged. The opinion concludes as follows: "To ap ply the law to the facts as proved in the case before us: Thompson and Mirick & Co. stand in the relation of joint and several promisors. Payment of the note was demanded of Thompson, but not of Mirick & Co. The defendant is an indorser, liable only upon legal notice of a demand upon the promisors and a refusal by them to pay the note; and we are of opinion that he has a right to avail himself of this neglect to make demand on Mirick & Co., to discharge himself from his liability as indorser."

Other cases might be cited which either expressly or by necessary intendment establish the rule contended for by appellant; but in view of the fact that but a single case has been found expressly holding to the contrary, and of the fact that the reasoning of that case has been criticised by every court which has referred to it, we do not think it necessary to cite them. It is true that respondent claims that the case of McClelland v. Bishop, 42 Ohio St. 113, affirms that of Harris v. Clark, supra; but an examination will show that the language relied upon was qualified, and was only used by way of argument upon a point not necessary to the decision of the case. So that the rule in Ohio must be held to depend upon the single case of Harris v. Clark; and that one has been in some degree discredited by the case of Greenough v. Smead, 3 Ohio St. 415. In this case, the question, as in the Massachusetts case above cited, was as to whether one of the parties to the note was a maker or an indorser; and the court, by one of the ablest jurists that ever graced the bench of that or any other state,-Rufus P. Ranney,-at considerable length, discussed that question, for the purpose of showing that he was an indorser, and that no presentment to him was