stances on that or any other railroad. It was a sudden disaster, causing a condition of the tracks which had to be repaired with speed. The defendant was not responsible for the catastrophe and wreckage which caused whatever danger there was in the situation; and under such circumstances the doctrine of "safe place" had no application. The place was not in a condition made or chosen by the defendant, but in such condition as the disaster had left it. It was the plain duty of the servants in such an exigency, without awaiting orders, to engage in and hurry the work of clearing the obstruction from the track, and incidentally to look after and guard their own safety while so engaged; and the servants at hand, under John McGrath, their foreman and fellow servant, engaged in that work at once, and other servants, with their foreman, as they learne of the disaster, joined them. John McGrath was a man of experience on that railroad, where such slides had occurred before, and with the others could, while the daylight remained, see the face of the cliff, and form a judgment as to whether it appeared to be dangerous or reasonably safe for himself and his fellow workmen. That his attention was given to this subject appears, but the extent of his inspection or examination does not appear. His attention was called by a brakeman, who had no knowledge or experience about such matters, to a crevice or fissure at the side of a rock in the cliff. But it appeared that such crevices or fissures were common in all such cliffs, of which there were very many along that railroad, and this one does not seem to have impressed him as dangerous; and he appears to have relied on his own judgment and experience in preference to the suggestion of a mere trainman. Miles McGrath, the roadmaster, was sent there by another subordinate official, with an engine and flat cars and such workmen as he could pick up on the way, to clear the rock from the track; arriving there after it had become very dark. The foreman of these men which he brought there came to him when about to begin work, and one of them (Mr. Owens) asked him if the place was all right, whereupon John McGrath, who was present, answered, "Yes, I examined it before dark, and it is all right," and then the foremen went to work with their men. It does not appear by direct testimony what information was given to Whipps, as to the exigency requiring this work to be done. at night, or as to the character of the disaster, before he arrived at the obstruction and engaged in the work. It does appear that Miles McGrath arrived at Russell, where the bridge gang was, of whom Whipps was one, about 6 o'clock, with his engine and flat cars; and waited while they got their suppers, after directing that they go with him to this work; and that they got their shovels and went on those cars 10 miles or more to the work. If it is not a certain presumption that all the men were informed of the cause of their being called to distant work at such a time, it is clear that their foreman was so informed, and that on arriving at the obstruction, the situation was obvious, and also the necessity for clearing the track and causing that work, then only begun, to be hurried through, although in the night; and this could leave no other inference than that the disaster had just happened, and that the work of removing the broken rock was being prosecuted by the workmen, caring for their own safety. The absence of sufficient light to enable them to carefully examine the cliff naturally occurred from the coming on of night and the hasty want of preparation, and was patent equally to all the men engaged. Gulf, etc., v. Jackson, 65 Fed. 48, 51, 12 C. C. A. 50%. As before stated, in the case of a sudden disaster like this rock slide, stopping all trains on a railroad, it was the duty of the servants without orders to enter on the work of clearing the tracks, and of the railroad company, without waiting for inspection, to direct its servants to hasten to the place and engage in that work, expecting the servants to use their own senses and judgment in avoiding dangers. The circumstances gave the servants no right to assume that a safe place was prepared and furnished, or any inspection had, other than such examination as had been or might be made by fellow servants in prosecuting the work. It appears that John McGrath had assumed to make such examination as he deemed proper. If he was negligent in this, although he was a foreman, he was engaged in a common employment with the others, and was a fellow servant. Balch v. Haas, 73 Fed. 974, 978, 20 C. C. A. 151. So, also, was Miles McGrath, the roadmaster. He had no entire control of any separate department, but was engaged, like the other servants and the foremen, in the common employment of keeping the road in repair, and was subject to the orders of the superintendent and trainmaster. Northern Pacific Ry. Co. v. Dixon, 194 U. S. 338, 343, 24 Sup. Ct. 683, 684, 48 L. Ed. 1006. In this case the court says: "We have no hesitation in holding, both on principle and authority, that the employer is not liable for an injury to one employé occasioned by the negligence of another engaged in the same general undertaking; that it is not necessary that the servants should be engaged in the same operation or particular work. It is enough to bring the case within the general rule of exemption if they are in the employment of the same master, engaged in the same common enterprise, both employed to perform duties tending to accomplish the same general purposes; or, in other words, if the services of each in his particular sphere or department are directed to the accomplishment of the same general end." Here all these servants, including the foremen and the roadmaster, were, when the disaster happened, engaged in the common work and enterprise of keeping the railway in proper condition for the passage of trains. The disaster caused an instant sudden emergency in the very work in which they were engaged. An emergency admitting of no delay-not even for daylight-certainly not for the summoning of the managing officers of the railway or of its engineers. The work to be done was simply the rough work of clearing the tracks of the fallen rocks, which the servants, under their foremen and roadmaster, were entirely competent to perform. The circumstances and conditions must have made it plain to all that no inspection or precaution respecting the cliff was or could have been had except by such of the servants as were there while it was daylight. Under these circumstances the servants who came later as well as those who were there in daylight assumed the risk of the 138 F.-2 employment they engaged in; and if John McGrath or Miles McGrath were negligent in representing the place to be safe, that was negligence of fellow servants. Northern Pacific Co. v. Dixon, above cited; Pennsylvania Co. v. Fishack, 123 Fed. 465, 59 C. C. A. 269. It is unnecessary to consider in detail the several assignments of error. The instructions to the jury throughout conformed to the theory presented by the instruction above quoted. The judgment is reversed, and the cause remanded, with directions to grant a new trial. MONARCH ELECTRIC & WIRE CO. v. NATIONAL CONDUIT & CABLE CO. (Circuit Court of Appeals, Seventh Circuit. April 11, 1905.) No. 1,091. CONTRACTS-ACTION FOR BREACH-QUESTIONS FOR JURY. Defendant was a New York corporation engaged in manufacturing copper wire, maintaining an office in Chicago in charge of an agent. Plaintiff was an extensive manufacturer of electrical supplies, using large quantities of copper wire, having its office in Chicago. Its president, who had previously dealt with defendant through its Chicago office, called up the agent by telephone, and asked the price on 100,000 pounds of copper wire, and on being told asked the agent to enter plaintiff's order, saying he would send it in writing, to which the agent answered, “All right.' The order was sent and received without objection, but subsequently, copper having in the meantime advanced in price, defendant refused to fill it, and plaintiff sued in assumpsit for breach of contract, introducing evidence showing the custom in the business and the previous course of dealing between the parties. Held that, whether the telephone conversation, supplemented by the written order, constituted a contract, in view of such custom and course of dealing, and also whether the agent of defendant was authorized to make the contract on its behalf, were questions for the jury, and that the direction of a verdict for defendant at the close of plaintiff's evidence was error. [Ed. Note. For cases in point, see vol. 11, Cent. Dig. Contracts, §§ 141-143.] In Error to the Circuit Court of the United States for the Northern Division of the Northern District of Illinois. Action of assumpsit for breach of contract in the failure of defendant in error to deliver to plaintiff in error, two hundred thousand pounds of copper wire. At the close of plaintiff's evidence in the Circuit Court, on motion made by defendant's counsel, the jury was instructed to return a verdict for the defendant; and upon this action of the court was assigned the error that constitutes the chief question in this case. The facts are stated in the opinion. Albert N. Eastman, for plaintiff in error. Before JENKINS, GROSSCUP, and BAKER, Circuit Judges. GROSSCUP, Circuit Judge. The plaintiff in error is a manufacturer of electrical supplies, using large amounts of copper, and do ing a business that reaches from one hundred and fifty to two hundred million dollars a year. The defendant in error is a New York corporation engaged in the manufacture and sale of copper wire. For a number of years the defendant has maintained a Chicago office, in the charge of one H. E. Cobb, through whom the contracts in question were made. The evidence tended to show that on January 24th, 1902, one Samuel Mankowitz, president of the plaintiff, who had had previous dealings for copper wire with the defendant through Cobb, called Cobb on the telephone, asking him for a price on one hundred thousand pounds of wire; that Cobb named twelve cents a pound; that Mankowitz said "enter my order"; that Cobb said "all right"; that Mankowitz then said "I will mail you the order, either during the day, or I will send it over"; and that on the same day Mankowitz sent to Cobb a writing as follows: "Chicago, Jan. 24th, 1902. As per conversation with you this day, you may enter our order for 100,000 lbs. bare copper wire at .12lb, base f. o. b. New York, to be taken as needed, sizes to follow specifications. We agree to pay 5% interest for remaining amount we do not take within 30 days. Trusting that this will be satisfactory, we are Yours very truly, MONARCH ELEC. & WIRE Co., The evidence tended to show also, that on the morning of January 28th, Mankowitz called up Cobb, asking him again for a price on copper wire, to which Cobb replied that the price was the same as the last; that Cobb was then told to enter the plaintiff's order for one hundred thousand pounds, to which he replied "all right"; and that on the same day, the following paper was sent by the plaintiff to Cobb: Mr. H. E. Cobb, "Chicago, Jan. 28, 1902. Chicago, Ill. Agent, National Conduit & Cable Co., Dear Sir: As per conversation with you this morning, you will enter our order for 100,000 lbs., bare copper wire at .12 lb., f. o. b., factory, sizes to follow on specifications, to be taken within 30 days. We are Yours very truly, MONARCH ELECTRIC & WIRE CO., The evidence tended to show further, that on this latter date, January 28th, but after the conversation just related, Cobb called up the plaintiff on the telephone, saying that he had just received a wire from his house in New York, advising him that copper had advanced. Thereupon Mankowitz said "I am glad to hear it", to which Cobb replied, "well, you came in pretty lucky." The day following, January 29th, Cobb wrote a note to the plain tiff, enclosing a letter received by him from the defendant in New York, which note, with the enclosure, are as follows: "The National Conduit & Cable Company, Monarch Electric & Wire Co., 135 S. Clinton St., City. Gentlemen : January 29, 1902. Enclosed find letter from our New York office, referring to your order of January 24th for 100.000 lbs. bare copper wire. Please note contents and advise me at once whether you want us to accept your order under these terms. Yours very truly, [Signed] NATIONAL CONDUIT & CABLE Co., H. E. COBB." (Enclosure) "H. E. Cobb, Esq., Chicago, Ill. Dear Sir: We have your favor of the 25th inst, enclosing your order No. 88 for the Monarch Electric Wire Co., Chicago, and in relation to this order, we beg to say that the only terms on which we would accept it would be cash on B/L, and that the total order must be taken before July 1st. We are doing nothing in connection with the order until we hear from you further. Yours truly, THE NATIONAL CONDUIT & CABLE Co. [Signed] per G. G. O'Connor. P. S. We return herewith letter of the Monarch Elec. Co." To which plaintiff answered as follows: Mr. H. E. Cobb, C/o National Conduit & Cable Co., Dear Sir: Chicago, Ill. "Chicago, Jan. 30, 1902. We are in receipt of your letter of the 29th inst., where you enclose letter from your New York office. Referring to the contents, we wish to say that the conditions and terms your New York office name, are entirely satisfactory to us, we of course expect you to allow us the usual cash discount, Yours very truly, MONARCH ELECTRIC & WIRE Co., Pres." This letter evidently was sent to New York; for on February 6th, Cobb received a letter written to him from the New York house on February 3rd, which read as follows: "In relation to the inquiry of the Monarch Electric & Wire Co. as everything in relation to this matter has passed through your hands already, we want you to see these people and tell them for us that their order has not been accepted, is not accepted now, and will only be accepted at the market price of copper when it is accepted, and with the understanding that the terms shall be net cash on B/L and no discount." This letter Cobb enclosed to the plaintiff. What has now been stated constitutes the transaction on which the action is based. From time to time plaintiff made out specifications, according to his contract as claimed, which defendant refused to fill; whereupon the action was brought. Assuming that Cobb had authority to make a contract, the question that first arises is, Did the telephone conversations constitute |