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corder, as required by the statute, the owner cannot be held liable beyond the contract price. If, on the other hand, the contract was not filed, as provided by section 1183 of the Code of Civil Procedure, the price agreed to be paid being in excess of $1,000, the contract was void, and the owner (the defendant here) is liable. That portion of section 1183 involved in the question as presented is as follows: "All such contracts shall be in writing when the amount agreed to be paid thereunder exceeds one thousand dollars, and shall be subscribed by the parties thereto, and the said contract, or a memorandum thereof, setting forth the names of all the parties to the contract, a description of the property to be affected thereby, together with a statement of the general character of the work to be done, the total amount to be paid thereunder, and the amounts of all partial payments, together with the times when such payments shall be due and payable, and shall, before the work is commenced, be filed in the office of the county recorder; otherwise they shall be wholly void, and no recovery shall be had thereon by either party thereto; and in such case the labor done and materials furnished by all persons aforesaid, except the contractor, shall be deemed done and furnished at the personal instance of the owner, and they shall have a lien for the value thereof." The object of the statute in requiring contracts in excess of $1,000 to be filed with the recorder seems to be twofold: (1) As a security to the owner, who is thereby shielded from liability to subcontractors, laborers, and material men, beyond his contract price. (2) To afford information to all others furnishing materials or performing services in and about the contemplated improvement, upon which to predicate an opinion founded upon the value of the property, the price to be paid, and the dates of payment, as to whether the contract price is such as will probably be adequate security, and the lien therefor given to them by the statute sufficient to warrant them in bestowing their labor or furnishing materials for the proposed improvement. Manifestly, if the improvement, when completed, taken with the property upon which it is situated, is of a character having no extrinsic or market value, -as, for instance, a mill for crushing quartz rock where there is not and cannot be any quartz rock to crush,-or if, the property being valueless, the price agreed to be paid is far below the value of the work to be done, it is of the utmost importance that these facts should be known to those about to become interested. "The plans, drawings, and specifications" in conformity with which the work was to be done were not filed with the contract. They constituted, so far as the "general character of the work to be done" was concerned, the very soul and essence of the agreement. Without them the dimensions and character of the work cannot be deter

mined. Whether it was to be composed of iron, stone, brick, or wood we cannot tell. A contract to construct a church, build a house, or sink a shaft would be just as definite as the one in question. In the matter of price to be paid, the dates of payment, etc., it was definite and certain. In the matter of "the general character of the work to be done," the contract, as filed, was, without the "plans, drawings, and specifications," which formed an essential part thereof, fatally defective. If it be urged that the contract did not in terms recite that the "plans, drawings, and specifications" were attached thereto, and made a part of the contract, the answer is twofold: (1) It abundantly appears that they formed an essential part of the contract, and they became a part thereof as effectively as though in express terms so designated. (2) Without them the contract is so indefinite and uncertain as not to comply with the requirements of the statute. We regard the recent cases decided by this court, involving substantially the same question, as conclusive of the matter against the defendant. Yancy v. Morton, 94 Cal. 558, 29 Pac. Rep. 1111; Willamette, etc., Co. v. Los Angeles College Co., 94 Cal. 229, 29 Pac. Rep. 629; Holland v. Wilson, 76 Cal. 434, 18 Pac. Rep. 412. If we view the contract as filed in the light of a memorandum, the same objections are apparent and equally fatal. Willamette, etc., Co. V. Los Angeles College Co., supra. Deeming the original contract void under the statute, it is unnecessary to consider the effect of the amendments to it. They were not filed, and neither add to nor detract from the original as a valid contract.

Against the three assignments to plaintiff, Greig, for which he had judgment, appellants raise objections. The first is to the validity of the assignment by the San Francisco Lumber Company, concerning which it is urged that no authority either by by-law or resolution of the board of directors was shown in Thomas Richardson, the manager of the company, or in Adams, the president, to execute the assignment to plaintiff. The assignment is in due form, and is executed by "W. J. Adams, President San Francisco Lumber Co.," and "Thomas Richardson, Manager," with the corporate seal attached. The evidence tended to show that the assignment was made in the regular course of business of the corporation to plaintiff for collection, the company still having the equitable interest in the claim. In the language of the manager, Richardson, who was a witness: "This is a corporation. When it was necessary to make the assignment, we talked the matter over in the board, and it was decided that I should make the assignment to Mr. Greig, for the purpose of collecting this amount. The company is not at present the owner of the claim. The indorsement upon the document is the corporate seal of the company. It was placed there by the secretary." Again: “I

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don't think it was made a matter of resolution, but it was a matter which we are in the habit of doing in the regular way of business. I had the power to do so,-to make the assignment." There was testimony to the effect that it was not entered in the record, because they did not usually do that, and that the matter was discussed at meetings of the board in the ordinary way, and Richardson, the general manager, was at a regular meeting of the board authorized to do as he thought best as to the assignment. There was a period in the history of corporations when the most ordinary transactions were required to be authorized by solemn resolution of the board of trustees, duly entered in their records, and authenticated by the corporate seal. With the multiplication of corporations, having for their object nearly every business pursuit known to modern times, the formalities previously regarded as necessary, and which were illy adapted to pursuits requiring prompt action, have been greatly abridged. "Corporations," says Bronson, C. J., in Gillett v. Campbell, 1 Denio, 522, "like individuals, may appoint agents and make most of the contracts which fall within the scope of their general powers without the use of a seal. The rule was once otherwise, but that day has gone by." The case in which the above language was used was one in which the president and cashier of a bank, for the purpose of securing a debt owed by the bank, had assigned a debt due to the bank, and it was objected that no authority to make the assignment had been shown by the by-laws of the company or a resolution of the board of directors, and the validity of the assignment was upheld. McKiernan v. Lenzen, 56 Cal. 61, was in many respects similar to the case at bar, and the power of the general manager to assign a book account for lumber sold by the corporation to a creditor of the corporation, in payment of an existing debt, was upheld. Waterman on Corporations, at section 30, says: "As a general managing agent and superintendent is the representative of the corporation, and may do in the transaction of its ordinary affairs what the corporation itself could do within the scope of its powers, he may assign the chose in action of the corporation to its creditors either in payment of or as security for the payment of a precedent debt of the corporation without express authority of the board of directors." The following cases uphold the same general principle: Bank v. Kohner, 85 N. Y. 190; Ringling v. Kohn, 6 Mo. App. 333; Donnell v. Bank, 80 Mo. 170; Association v. Martin, 39 Kan. 750, 18 Pac. Rep. 941; Seeley v. Lumber Co., 59 Cal. 24; Jennings v. Bank, 79 Cal. 328, 21 Pac. Rep. 852; Smith v. Mining Co., 66 Cal. 398, 5 Pac. Rep. 688; Centertown Co. v. Swigart, (Kan.) 23 Pac. Rep. 569. the conveyance of real estate and in transactions outside the usual scope of their business, corporations are held to much of the strict

In

ness by which they were governed in former times. They must act as individuals may act, through agents, and, within the general scope of their ordinary business, their managing agents can bind their principals as can those of an individual; and, if their agents transcend their powers, the corporations, having knowledge thereof and not specially repudiating the act, are equally bound as individuals would be under like circumstances. The defendant here is only concerned to know that the assignment here is of such a character as to bind the assignor. That the assignor is and will be bound by the act of its general manager is evident from the fact which appears, that the transaction was in the ordinary course of business of the corporation. (2) Because the corporation had notice of the assignment, and made no objection thereto. (3) Because the evidence, although not clear and explicit, is sufficient to uphold the position that the board of directors, sitting as such, authorized the assignment, it not being an act requiring a formal resolution to be entered of record. The objections to the other assignments are not deemed important. William H. Jordan was the attorney for plaintiff, and as such, at the request of the several assignors, prepared the assignments, and, after their execution they were read by the assignee, and apparently left with his said attorney. The assignments were made for collection, and no consideration was paid by the assignee. It is matter of common knowledge that, for the purpose of saving expense, commercial associations and others resort to this method. In such cases the assignee becomes the legal holder of the chose in action, which is sufficient to entitle him to recover, while the assignor retains an equitable interest in the thing assigned, which is of no moment to the debtor. Pom. Rem. (2d Ed.) § 132; Gradwohl v. Harris, 29 Cal. 154; Allen v. Brown, 44 N. Y. 228; Williams v. Norton, 3 Kan. 295; Toby v. Railroad Co., (decided June 9, 1893,) 33 Pac. Rep. 550. I find no error in the record calling for a reversal, and am of opinion the judgment and order appealed from should be affirmed.

We concur: BELCHER, C.; HAYNES, C.

PER CURIAM. For the reasons given in the foregoing opinion the judgment and order are affirmed.

(99 Cal. 363)

BURNS v. SENNETT et al. (No. 14,955.) (Supreme Court of California. Aug. 26, 1893.) INJURY TO SERVANT NEGLIGENCE OF FELLOW SERVANT-EVIDENCE-CUSTOM AND USAGE-IN

STRUCTIONS.

1. The rule that a master is bound to furnish safe appliances, and cannot escape liability for failure to do so by intrusting the duty to a servant, by whose negligence a fellow servant is injured, does not apply where several persons are employed to do certain work, and by the

contract of employment, express or implied, they are to adjust the appliances by which the work is to be done.

2. The fact that a servant injured by the negligence of fellow servants in putting up appliances for doing the work, and which were to be put up by them, thus relieving the master from liability for their negligence, was not hired until several days after the others, and after the appliances had been adjusted, does not make the master liable, as the new servant takes the risk of existing negligence of his fellow servants.

3. In an action against master stevedores for injuries to one employed to help load a vessel, caused by the negligence of a fellow servant in adjusting the appliances, where defendants claim that the servants were required to adjust the appliances, and that the negligence, was therefore that of a fellow servant, for which they were not liable, defendants may prove, where the contract of hiring is silent on the question, that there was to plaintiff's knowledge a custom among stevedores at that place under which employes were required to adjust appliances for loading and unloading.

4. On the question whether a master used reasonable care in adjusting appliances, he may show that the adjustment was made in the manner in which such appliances are usually adjusted.

5. Error of the court in the charge given on his own motion in ignoring a principle on which the case depends is not rendered harmless by a correct charge on the point, given in an isolated instruction requested by a party.

Department 2. Appeal from superior court, city and county of San Francisco; John Hunt, Judge.

Action by Patrick Burns against Sennett & Miller, for personal injuries. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendants appeal. Reversed.

Mastick, Belcher & Mastick, for appellants. Mich. Mullany and Wm. Grant, for respondent.

MCFARLAND, J. This is an action to recover damages for personal injuries alleged to have been caused by the negligence of defendants. Verdict and judgment were for plaintiff, and defendants appeal from the judgment, and from an order denying their motion for a new trial. Appellants were stevedores; and, at the time respondent was injured, they were engaged in loading wheat into a certain ship named Chala, for which purpose they had employed a gang of workmen, and a foreman named Wyatt. On June 7, 1889, respondent was one of the gang, and assisting to load the wheat into said ship. His particular work at the time was that of what is called a "slingman;" that is, it was his duty to place on the wharf a "sling," or endless ring of rope, and after the warehousemen had placed thereon a certain number of sacks of wheat, to bring the ends of the sling up over the load, to "reeve" one end of the sling through the other, to put the lift hook through the loop, and to steady the ascending load while within his reach, and then get ready another sling for the next lcad. When the lift hook was put into the loop, the load was raised by steam power,

applied through certain machinery and apparatus until it was above the side of the ship, when it was pulled aboard by another employe. On the day last named, while a load of wheat was thus ascending, it suddenly dropped upon respondent, and caused the injuries for which he seeks damages in this action. The transcript contains minute descriptions of the various things, which, when put in place and properly united and adjusted, constitute the apparatus used in loading or discharging cargoes, but it is sufficient to say here that they consist of a hoisting engine and certain ropes, working blocks and tackle, pulleys, straps, hooks, swivels, etc.; and, with respect to the cause of the accident by which respondent was injured, it is sufficient to say that most of the apparatus is to a great extent sustained and kept in place by being attached by hooks to what is called a "strap," which is a ring of rope placed around the masthead just above the crosstrees, and that the falling of the load of wheat was caused by the breaking or giving way of this strap. The strap was constructed and put in place by employes assigned to that work by the foreman. The strap should have been "parceled;" that is, properly wrapped or covered with canvas, so as to prevent it from being chafed by contact with the crosstrees.

We do not think that there was evidence in this case to warrant the jury in finding that the accident by which respondent was hurt was caused by the negligence of any person, except in this respect: we think that possibly, taking all the evidence and circumstances in proof, the jury were warranted in finding that the accident was caused by the negligent manner in which the strap was constructed, adjusted, or parceled. The question in the case, therefore, assuming that there was such negligence, is this: Are appellants liable to respondent for the result of the said negligence as to said strap? And this can be correctly answered only by determining whether or not the proper placing and maintaining of the strap was a positive duty which the appellants personally owed to respondent. Daves v. Railroad Co., (Cal.) 32 Pac. Rep. 708; Railroad Co. v. Baugh, 13 Sup. Ct. Rep. 914. The general rule is well established that an employe cannot recover judgment against his employer for personal injuries caused by the negligence of a fellow servant. The authorities to this point are numerous, but it is only necessary to cite here the most recent decisions of this court upon the subject, (Daves v. Railroad Co., supra, and Congrave v. Railroad Co., 88 Cal. 360, 26 Pac. Rep. 175,) and the recent decision of the supreme court of the United States in Railroad Co. v. Baugh, supra; and, if in the case at bar the adjustment and maintenance of the said strap was not a duty which appellants owed personally to respondent, then all the gang of men employed by appellants in loading the ship were fellow servants, and

respondent could not recover of appellants for injuries caused by the negligence of one or more of said fellow servants in constructing, parceling, etc., said strap. There is another general rule, however, under which alone, upon the facts so far appearing, respendent can maintain this action, if he can maintain it at all; and that general rule is that an employer must furnish machinery and appliances reasonably suitable and safe for the employe to do his work. In such a case the employer is, of course, not bound to insure the employe against any defect in such appliances, but he is bound to use reasonable care in their selection or construction; and, where that rule applies, the duty to furnish such machinery and appliances is one which the employer owes personally to the employed, and he cannot escape that duty by trusting it to an employe who negligently performs it. Does that rule apply to the case at bar, and were there any errors prejudicial to appellants committed by the court below bearing upon that question?

While the general rule is as above stated, still it is well established that the rule does not apply to a case where several persons are employed to do certain work, and by the contract of employment, either express or implied, the employes are to adjust the appliances by which the work is to be done. For instance, if several men are employed to paint a building, or to do some work upon it which requires scaffolding, or some other temporary structure or appliance to support the workmen, the employer to furnish the materials and the employed to construct or adjust the scaffolding or other appliance, the employer is not liable to one of the employes for the careless act of another employe done in the construction, adjustment, or maintenance of the structure or appliance. There are many cases establishing and illustrating this principle, and applying it to a variety of facts, a few of which are the following: Peschel v. Railway Co., 62 Wis. 338, 21 N. W. Rep. 269; Butler v. Townsend, 126 N. Y. 105, 26 N. E. Rep. 1017; Killea v. Faxon, 125 Mass. 485; Ross v. Walker, 139 Pa. St. 42, 21 Atl. Rep. 157, 159; Benn v. Null, 65 Iowa, 407, 21 N. W. Rep. 700; Bowen v. Railway Co., 95 Mo. 268, 8 S. W. Rep. 230.

With respect to the giving and refusing of instructions on the point above stated, it would be impossible, within reasonable limits, to notice each instruction in detail; and we will confine ourselves to a general view of them. Some of the instructions asked by appellants and refused or modified by the court -particularly Nos. 3 and 7-might well have been given as asked; but we cannot say that appellants were prejudiced by their refusal, in view of the fact that the court, at appellants' request, gave instruction No. 6, which is as follows: "If a master employs servants to perform a particular service, in the course of which it is necessary for them to

construct and adjust machines or appliances for their own use in such service, then, in the absence of any special contract to the contrary, the master is only bound to furnish proper materials from which to construct such machines or appliances, and is not bound to see that such machines or appliances are properly constructed or adjusted." But the charge given by the court of its own motion to the jury, while in the main correct, seems to overlook or ignore the principle contained in said instruction No. 6. It may be plausibly argued that the jury are presumed to have considered the charge of the court as modified by said instruction No. 6; but as the said instruction was an isolated one, given at the request of a party, the jury would have much more surely understood the court if, in its own charge, it had made express reference to the principle stated in said instruction. We do not see at present that the instructions on this point are subject to further criticism. We have said enough, we think, on the subject to guide the court in the event of another trial.

We think, however, that the court did not carry out the principle of said instruction No. 6 in ruling upon the admissibility of evidence, and that errors prejudicial to appellants were committed in excluding certain testimony which they offered. We do not think that the various isolated and detached pieces of machinery and appliances above described, when temporarily put together for the purpose of loading or unloading a particular ship, can be properly considered as one entire and permanent machine or appliance, in the sense, for instance, in which a locomotive or a railroad track may be so considered. Peschel v. Railway Co., 62 Wis. 342, 21 N. W. Rep. 269. It is evident from the nature of the business of a stevedore that the temporary adjustment of these detached pieces has to be frequently made, as often as they are removed from one ship to another. Now, it is contended by appellants that, when a gang of men are employed to go to work at loading a ship, it is a part of the contract of employment that they are to adjust the appliances with which they are to work, and that to make the adjustment is not a duty owing personally by the employer. If this be so, then the employer is not liable to the employe for damages caused by the negligent act of another employe in making such adjust ment. In order to prove that the employment was as contended, appellants asked their witness Wyatt, who was their foreman, and an experienced stevedore, these questions: "Question. Is there a custom among stevedores in San Francisco in regard to the putting up of gear and tackle for discharging and loading ships? Q. What is the custom, if there is any, of stevedores in San Francisco, as to putting up gear and tackle for discharging and loading ships? Does the master stevedore undertake to

furnish the men with gear and tackle put up and in order, or is it a part of the work for which the men are hired to put up their own gear and tackle, and take care of it?" To these questions respondent objected as "incompetent, immaterial, and irrelevant," and the objection was sustained. Appellants then, in connection with the last question, made the following offer: "We propose by this question, and by others which will follow it, to prove by this witness and other witnesses whom we propose to call that by the custom of stevedores in San Francisco, at and before the time of plaintiff's employment, the gang of men employed to discharge or load a vessel were required, as a part of the work for which they were hired, to put up and take care of all the gear and tackle necessary for their use, the master undertaking to furnish only suitable rope, blocks, and other material for that purpose; that this custom was well known to plaintiff at the time; that he and his fellow members of the gang were employed under that custom, and without any contract to the contrary, for the discharge and loading of the ship so far as he was employed in it,"-to which the same general objection was sustained. The witness was then asked this question: "When you hired this gang of men, was it their duty to take care of the gear and tackle? Were they hired for that purpose?" And a general objection to the question was sustained. Of their witness Redmond, also an experienced stevedore, appellants asked these questions: "Q. What does the master stevedore furnish to the gang of men when he has taken the job of discharging a ship? Q. Does the master stevedore undertake or contract to furnish to the gang of men employed to discharge or load a ship anything except the material to put up, which, when put up, will constitute the rigging necessary for the work to be done? Q. What, if anything, does the master stevedore contract to furnish to the gang of men employed to load or discharge a ship?" To each of these questions the general objection was made that it was "irrelevant, immaterial, and incompetent," and the objection was sustained. Appellants duly excepted to all

of said rulings.

We think that, in sustaining the objections to the above questions and offered evidence the court erred. There possibly may have been some valid special objections to the form of some of the questions, or to some particular language used, as calling for the opinion of the witness; but we think that the general objections to them should have been overruled. The purpose of the offered evidence was to show what the real contract was between the employer and the employed, which the other evidence in the case left in doubt. For instance, we cannot imagine what valid objection there could be to the question: "Were they hired for

that purpose?" Moreover, we think that so far as the offered testimony involved proof of the usage, if any such there were, which entered into a general employment to load or unload a ship, in the absence of a special contract, it should have been admitted. A usage, of course, cannot be given in evidence to relieve a party from his express stipulation, or to vary a contract certain in its terms; but it has a legitimate office in aiding to interpret the intentions of parties to a contract, the real character of which is to be ascertained, not from express stipulations, but from general implications and presumptions. Section 1982 of the Civil Code provides that "an employe must perform his service in conformity to the usage of the place of performance;" and the general doctrine of usage has frequent express recognition in the Codes. See Civil Code, § 1645-1647, 1655, 1656; Code Civil Proc. 1870, subd. 12; Id. § 1963, subd. 12. See, also, Fraylor v. Mining Co., 17 Cal. 595; Winans v. Hassey, 48 Cal. 634; Gillett v. Mawman, 1 Taunt. 137; Vaughn v. Gardner, 7 B. Mon. 330. Our opinion, therefore, is that appellants should have been allowed to introduce evidence of the existence of said usage, and that the court erred in excluding the said testimony offered for that purpose; and it is quite clear that, if such testimony was admissible, it was material, and that its exclusion was prejudicial to appellants.

The fact that the date of respondent's employment was a day or two subsequent to that of the employment of some of the other men does not affect the operation of the rule. It was said by the court in Butler v. Townsend, supra, as follows: "The new servant takes the risk of any existing negligence of his fellow servants, as well as that which may thereafter occur. It may possibly be that if the lumpers had been discharged, and ceased to be servants at all, and the defendants, hiring others, had furnished the erected and completed staging for their use, a different question would have arisen, perhaps involving some new duty of the master; but nothing of that kind occurred. Calkers and lumpers at the time of the accident were working together upon the same vessel, for the same general purpose, and under the common master, when the negligence became operative which caused the injury. Tracing it back to an earlier origin is of no consequence, unless thereby some new duty of the master has been brought into existence."

There are only one or two other points necessary to be noticed. Appellants excepted to a ruling of the court excluding evidence that respondent and appellants belonged to an association called the "Riggers' & Stevedores' Union," which undertakes to regulate and restrict the employment of men by stevedores. The exception is not pressed in the briefs; but, as the point may arise