SLOSS, J. Appeal from a judgment in favor of plaintiff in an action brought against the defendant as indorser of a promissory note. The appeal was taken within 60 days, and the evidence is brought up in a bill of exceptions.

The note, which is set out in full in the complaint, reads as follows: "$900.00. Los Angeles, California, Feby. 18th, 1904. On or before August 18th, 1905, after date and for value received, we jointly and severally promise to pay to C. W. Hatch and E. E. Hatch, or order, at Los Angeles, California, the sum of nine hundred dollars, with interest from date until paid at the rate of 1% per cent. per month, payable monthly. Should the interest not be so paid, it shall become a part of the principal and thereafter bear like interest as the principal. Should default be made in the payment of any installment of interest when due, then the whole sum of principal and interest shall become immediately due and payable at the option of the holder of this note. Principal and interest payable in gold coin of the United States in sums of twenty-five dollars or more monthly, together with interest monthly. E. M. Jennings. Mary S. Jennings." Indorsed: "Without recourse on us. C. W. Hatch. E. E. Hatch." "Pay to the order of E. F. Kinsel, with recourse to me. L. M. Ballou."

1. One of the defenses was that the defendant had indorsed the note without recourse to him, by simply signing his name below that of the prior indorsement without recourse, and that the words, "Pay to the order of E. F. Kinsel, with recourse to me." had, after the delivery of the note, been written above his signature without his knowledge or consent. The court found against this allegation, and there was ample evidence to sustain the finding.

2. The defendant attacks the finding that notice of default had been given him; but the complaint alleges the giving of such notice, and the answer fails to deny it.

3. The answer alleges that at the time the defendant transferred the note to plaintiff it was understood and agreed that the plaintiff should have no recourse to the defendant, should such note not be paid when due, and that plaintiff should rely solely upon the security of a chattel mortgage by which the note was secured. The evidence fully supports the findings of the court against such agreement, if it could be conceded that the defendant was entitled to introduce evidence of an oral understanding directly controverting the terms of his written agreement. It is true that, as between himself and his immediate indorsee, the indorser may sometimes show that the indorsement was made merely for the purpose of transferring the instrument. Allin v. Williams, 97 Cal. 403, 32 Pac. 441; Kendall v. Parker, 103 Cal. 319, 37 Pac. 401, 42 Am. St. Rep. 117. These were cases dealing with a simple indorsement. which was not inconsistent with the verbal

agreement proven. But we are cited to no case holding that, in the absence of fraud or mistake, oral evidence may be introduced to show that an indorsement "with recourse" was intended by the parties to be "without recourse."

4. The complaint alleges that interest was paid to August 18, 1904; that on the 3d of October, 1904, default having been made in the payment of the interest installment due on September 18th, plaintiff elected to declare the whole sum of principal and unpaid interest immediately due and payable, and on said 3d day of October, 1904, notified the makers of such election and presented the note for payment; and that plaintiff on the same day notified the defendant of his election and of the nonpayment of the note. The last sentence of the note reads: "Principal and interest payable in gold coin of the United States in sums of twenty-five dollars or more monthly, together with interest monthly." The italicized words are in writing: the rest of the note, with the exception of the names and figures, being printed. It is urged that the provision quoted is in conflict with the provision allowing the principal sum to become due for default in payment of a monthly installment of interest, and that the note read as a whole should be construed to provide merely for monthly payments of $25 for principal and interest together, at least until the 18th day of August, 1905. But we see no conflict between the different clauses. The provision for the payment of $25, or more, was merely an option given to the makers whereby they were permitted, in advance of the maturity of the note, to make partial payments on account of the principal. It did not limit their obligation to pay the interest monthly, nor did it destroy or modify the holder's right to declare the entire sum due when there should be a default in the payment of interest.

5. It is argued that, since the unpaid installment of interest fell due on September 18th, demand should have been made on that day, and immediate notice given to defendant as indorser, in order to hold him. The demand was made, and the notice given, on October 3d, and the contention is that the delay of 15 days discharged the defendant.

Rauer v. Broder, 107 Cal. 282, 40 Pac. 430; Civ. Code, § 3131, subd. 5. But this action was not brought to recover the interest due on September 18th alone. Its purpose was to enforce the liability arising under the provision of the note that, in the event of default being made in the payment of any installment of interest when due, "then the whole sum of principal and interest shall become immediately due and payable at the option of the holder of this note." This liability did not arise until the latter exercised the option so given to him, and, as the complaint alleges and the court finds, he exercised it on the 3d day of October. On the same day he made his demand on the

Un

makers and gave notice to the indorser. der a clause of this kind, the holder is allowed a reasonable time in which to determine whether or not he will exercise his option and declare the principal of the note at once due and payable. Hewitt v. Dean, 91 Cal. 617, 28 Pac. 93, 25 Am. St. Rep. 227; Fletcher v. Dennison, 101 Cal. 292, 35 Pac. 368. Crossmore v. Page, 73 Cal. 213, 14 Pac. 787, 2 Am. St. Rep. 789, cited by appellant, declares nothing to the contrary. The court there said that "the holder was entitled to a reasonable time to exercise his option." In that case the holder had permitted 7 months to elapse, and the court held that this was more than a reasonable time. In Fletcher v. Dennison, supra, a delay of 59 days was held not to be unreasonable, as matter of law. Where the delay was 15 days, it certainly cannot be said that the trial court was not justified in finding. as it impliedly found here, that the holder had acted with reasonable promptness. especially in view of the evidence that prior installments of interest had been paid on the 1st day of the month succeeding the one in which they fell due.

It is argued that the rule allowing a reasonable time for the exercise of the option has no application to the indorser of a note: that as to him the option must be declared and the demand made on the very day the interest installment falls due. But we see no reason for this distinction. The indorser of a negotiable instrument warrants, inter alia, that if the instrument is dishonored he will, "upon notice thereof duly given to him, pay the same with interest." Civ. Code, § 3116. A negotiable instrument is dishonored when it is not paid on presentment for that purpose. Id. § 3141. The instrument must be presented on the day of its maturity. Id. § 3131, subd. 5. Notice of dishonor, when given otherwise than by mail, must be given on the day of dishonor, or on the next business day thereafter. Id. § 3147. If given by mail, it must be deposited in the post office in time for the first mail which closes after noon on the first business day succeeding the dishonor. Id. § 3148. In the present case, the principal sum was not due until the holder had exercised his option to declare it due. This he did on the 3d day of October, and on the same day he made presentment and gave notice of dishonor to the defendant. He thereby complied with every step required to fix the liability of the indorser. If it be said that an installment of interest was due on September 18th, and that as to this the holder could not delay presentment until October 3d, and still hold the indorser, it may be answered that the judgment did not include any interest accruing up to September 18th. The amount recovered was the principal of the note, with interest from September 18th. The interest accruing between said date and the 3d day of October. became due, like the principal, at the option

of the holder, for failure to pay the preceding installment.

6. Mary S. Jennings, one of the makers, had died prior to maturity of the note, and there had been no administration of her estate. We need not here decide whether, as to her, presentment was excused by these facts. The court found that the plaintiff presented the note for payment to the person in charge of the hotel in which Mary S. Jennings resided at the time of her death. The appellant attacks this finding. The only specification of insufficiency is that "no proof was introduced as to who was in charge of the Hotel Wheeler"-a specification that is not sustained by the record, since the plaintiff testified that he had presented the note to Mrs. Pool, "who was in charge of the Hotel Wheeler." The complaint alleges that the plaintiff had presented the note for payment at the place where Mary S. Jennings had her place of business and her residence at the time of her death, and that payment on behalf of the said Mary S. Jennings was refused. The defendant demurred on the ground of uncertainty, in that it did not appear to whom the demand on Mary S. Jennings was delivered. We think the overruling of the demurrer was proper. The name of the person to whom presentment was made was a mere matter of evidence. But, even if there may have been some want of certainty in the allegation, it was not of a character to injure the appellant. If, when the proof was made, he was without evidence to meet it, and desired time to procure such evidence, he should have asked for a continuance for that purpose.

7. As a separate defense the answer alleges that the makers of the note, at the time of its execution, executed and delivered to the original payees, as security for the note, a chattel mortgage of certain property. and that this mortgage was assigned and transferred to the plaintiff with the note. It is further alleged that no proceedings to foreclose this mortgage have been taken by the plaintiff. It is argued by the appellant that by reason of the existence of this mortgage the liability of the makers was not absolute, but was contingent upon a failure of the mortgaged property to realize, on foreclosure, an amount sufficient to pay the note, and that the indorsement of defendant imposed upon him no greater liability than that of the original mortgagors. On those grounds it is claimed that, so long as no sale of the mortgaged property had taken place, the defendant's obligation to pay had not become fixed. It is no doubt true that, so far as the mortgagors themselves were concerned, an action to recover the amount of the note I could not have been maintained apart from a foreclosure of the mortgage. As to them the mortgaged property constituted a primary fund for the discharge of the debt, and no personal judgment could have been en

tered against them, unless after foreclosure a deficiency had appeared. Code Civ. Proc. § 726; Bartlett v. Cottle, 63 Cal. 366; Porter v. Muller, 65 Cal. 512, 4 Pac. 531; Bull v. Coe, 77 Cal. 54, 18 Pac. 808, 11 Am. St. Rep. 235; Barbieri v. Ramelli, 84 Cal. 154, 23 Pac. 1086. But the defendant was not the mortgagor. His contract of indorsement was collateral to the original obligation of the mortgagors, and was not secured by the mortgage. In Vandewater v. McRae, 27 Cal. 596, the court said: "The mortgage given in this case was executed by the makers of the note, and the only personal liability secured by it, or intended to be secured by it, was that of the makers of the note as such. * * * The promise of the maker of a note is one thing, and the promise of an indorser is another. One is primary, and the other is secondary. One is absolute; the other turns upon conditions. Each may be secured by a separate mortgage, or one mortgage may be so framed as to secure them both.

* On the i ground, then, that the right which this action is brought to enforce is unsecured by mortgage, we consider that the plaintiff is at liberty to pursue the defendants in personam on their contract of indorsement." Carver v. Steele, 116 Cal. 116, 47 Pac. 1007, 58 Am. St. Rep. 156, was, like the present case, an action by the holder of a promissory note against indorsers. The defendants relied upon the plea that the note was secured by mortgage and that the holder had failed to enforce and foreclose his mortgage. The court, holding that this was no defense, used the following language: "In general, unless some agreement or special circumstance imposes diligence upon the creditor as a duty. he does not, by mere failure to pursue the person primarily liable, discharge the guarantor, surety, or indorser, even though his passivity in this regard may result in barring his remedy against the original debtor. Whiting v. Clark, 17 Cal. 407; Bull v. Coe. 77 Cal. 54, 60, 18 Pac. SOS, 11 Am. St. Rep. 235. Accordingly the rule is that the creditor loses no rights against the indorser, whose liability has become fixed, by mere failure to enforce his lien against the property mortgaged for security for the debt. First Nat. Bank v. Wood, 71 N. Y. 405, 27 Am. Rep. 66; Hoover v. McCormick, 84 Wis. 215, 54 N. W. 505; Fuller v. Tomlinson, 58 Iowa, 111, 12 N. W. 127; Colebrooke on Collateral Securities, § 241, and cases cited." The court goes on to say that, even though the failure to foreclose the mortgage may have barred a personal action against the mortgagor, this consideration "does not reach respondents' case. Their contract to pay Montgomery was not the same as that of Staples (the mortgagor). The promise of a maker of a note is one thing and the promise of an indorser is another; and their promise was not secured by the mortgage held by Montgomery. Vandewater v. McRae, 27 Cal. 596, 603." These

cases are directly in point, and establish the proposition that in this state the indorser of a note secured by mortgage may be sued upon his obligation without a foreclosure of the mortgage.

In what has been said in this opinion we have treated the contract of defendant as one of indorsement, and this is the aspect in which both parties have treated the case in their briefs. If, however, the defendants could be held to occupy the position of a guarantor (the view taken by the District Court of Appeal, when the case was pending in that court) it would make no difference in the result. "There is no privity, or mutuality, or joint liability, between the principal debtor and his guarantor." The defendant as guarantor, if he was such, made an independent contract, upon which he was liable without regard to foreclosure of the mortgage as against the principal debtors. Adams v. Wallace, 119 Cal. 67, 51 Pac. 14. The judgment is affirmed.

SHEA v. SEATTLE LUMBER CO. (Supreme Court of Washington. Sept. 6, 1907.) 1. MASTER AND SERVANT-INJURIES TO SERVANT UNSAFE APPLIANCES-ASSUMED RISK.

Where plaintiff objected to appliances furnished, and the foreman promised to give him something better, but requested plaintiff to continue work until the substitute could be made, defendant assumed all risk of danger arising from plaintiff's careful use of the appliance for such reasonable time thereafter as might be necessary to provide the new tool.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Master and Servant, $$ 638-644.]

2. SAME-REASONABLE 2. SAME-REASONABLE TIME-QUESTION FOR JURY.

Where plaintiff continued to work for two days with an unsafe appliance after a safe appliance had been promised as soon as it could be made, whether such period was an unreasonable time was for the jury. 3. SAME.

Where plaintiff was injured while using a stick kept near an edger in defendant's mill for the purpose of cleaning away refuse under the machine, plaintiff cannot be held negligent in using the stick which was an unsafe appliance. instead of procuring another of larger dimensions, in the absence of proof that a stick of other dimensions was suitable or could have been used.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34. Master and Servant. $$ 723-742.] 4. SAME-METHOD OF WORK-STOPPING MA

CHINERY.

In an action for injuries to a servant, evidence held to show that plaintiff was not negligent.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Master and Servant. §§ 981-986.]

Appeal from Superior Court, King County; Boyd J. Tallman, Judge.

Action by John Shea against the Seattle Lumber Company. From From a judgment for plaintiff, defendant appeals. Affirmed.

Richard S. Eskridge and Philip Tindall, for appellant. Martin J. Lund and Vince H. Faben, for respondent.

CROW, J. This action was brought by John Shea against the Seattle Lumber Company, a corporation, to recover damages for personal injuries. From a judgment for $8,000 in favor of the plaintiff, the defendant has appealed.

In the

The appellant contends that the trial court erred (1) in refusing to take the case from the jury and enter judgment at the close of respondent's evidence, and again at the close of all the evidence; (2) in denying the appellant's motion for judgment notwithstanding the verdict; and (3) in denying appellant's motion for a new. trial. The sole question presented is whether the evidence sustains the verdict and judgment. In passing on this question, we must consider the evidence in the light most favorable to the respondent. The facts thus disclosed show: That the respondent had for two years been an employé in appellant's lumber and shingle mill in the city of Seattle. In the mill was a certain edger machine provided with seven or eight circular saws, which were mounted on an axle or arbor. In front and to the rear were rollers used to convey lumber to the saws. Beneath the edger was a chute for sawdust, splinters, bark, and other refuse. lower portion of the chute was a grating through which sawdust and the smaller particles of refuse passed. The grating and chute sometimes became clogged, and it then became the duty of some employé to clear it by pushing down the refuse material. Prior to the accident, a wooden stick about 10 to 12 feet in length was used for this purpose. The saws were guarded at the top and front of the edger, but back of the saws and below the arbor and rear roller was an opening about 12 inches wide extending across the full width of the machine. In cleaning the chute an employé would shove a long stick into this opening, and by its use clear away the refuse. This had to be done frequently as conditions required. The respondent Shea had for some time been in charge of certain levers near the edgers, but not connected therewith. His evidence shows that the appellant's foreman shortly before the accident | instructed him to clean the chute when clogged; that a wooden stick of 1 by 2 inches, about 10 or 12 feet long, was provided for his use; that a few days prior to the accident he broke the stick while using it; that he then realized its use was dangerous; that he immediately complained to the foreman and requested him to provide a long iron rod in place of the stick; that the foreman promised to do so, but requested the respondent to continue his work with the stick until an iron rod could be made; that, relying upon the foreman's promise, respondent continued using this stick, exercising the utmost care: that within two days thereafter the stick broke causing respondent to lose his

balance; that his fingers were thrown in contact with the unguarded saws; that his left arm was drawn under the machine, and so severely injured as to necessitate amputation about four inches below the shoulder. though it is insisted that the appellant was negligent in having failed to properly safeguard the saws at the back of edger, we will only consider the respondent's contention that appellant's negligence also consisted in its failure to provide him with safe appliances for his work. He insists that the use of a wooden stick was hazardous, unsafe, and dangerous. The work of cleaning the chute had been required of the respondent but a short time prior to the accident. He had previously seen other employés using the stick. He testified that, when he afterwards learned and appreciated the unnecessary hazard to which he was subjected by its use, he would not have continued the work but for his reliance upon the foreman's promise to provide him with a safe appliance. He further testified that the foreman had repeatedly seen him and other employés using a stick, but interposed no objection. The foreman denied that the respondent asked him for an iron rod or that he promised one. An iron rod was provided immediately after the accident, either the same evening, or early the next morning. Appellant's president and manager testified that he, without request from any person, ordered this iron rod after the accident. The jury in response to a special interrogatory affirmatively found that the foreman did prior to the accident promise respondent to provide the iron rod. It is elementary law that it is the duty of a master to provide his servant with reasonably safe machinery, tools, and appliances with which to perform the work required of him, and to also keep the same in reasonably safe condition. Whether the stick used met this re

quirement was a question of fact to be submitted to the jury.

It is contended by the appellant that the respondent had just as much knowledge of the fact that the stick was a dangerous and unsafe appliance as had the master, and that the respondent therefore assumed the risk of all dangers which might result from its use. This would be true, had the respondent continued its use without objection or complaint, after he actually appreciated the danger, but he only did so for a reasonable time while relying on the promise of the master. After appellant's foreman had made this promise, it assumed all risk of dangers arising from respondent's careful use of the unsafe appliance during such reasonable time as might thereafter be necessary to provide the iron rod. In Crooker v. Pacific Lounge & Mattress Co., 29 Wash. 30, 38, 69 Pac. 359, this court quoted with approval the following language from section 215 of Shearman & Redfield on Negligence: "There is no longer any doubt that, where a master has expressly promised to repair a defect, the servant does not assume the risk of an injury caused

thereby within such a period of time after the promise as would be reasonably allowed for its performance, or, indeed, within any period which would not preclude all reasonable expectation that the promise might be kept. And the same principle applies to a case where the master promises to a servant to discharge an incompetent fellow servant, but fails to do so, and the former servant is thereby injured, or where a servant, apprehending a particular danger, makes it known to the master, who assures him that he will provide against it. Nor, indeed, is any express promise or assurance from the master necessary. It is sufficient if the servant may reasonably infer that the matter will be attended to."

This doctrine must be applied to the facts before us, and it was the province of the jury to determine whether the respondent continued work for an unreasonable time after the promise was made. The appellant, however, strenuously urges that the respondent is not entitled to recover as he was guilty of contributory negligence in the following particulars: (1) In using a stick one by two inches in size, or a stick of any inadequate size, when he realized that it was apt to break, and knew, as shown by the evidence, that pieces of suitable dimensions were readily available; (2) in doing his work in such a manner as to cause the stick to break, and throw his hand against the saw; and (3) in attempting to clean the chute without first having the edger stopped, or the saws moved out of the way. As to the first contention, there is evidence that respondent used a stick which was kept near the edger for that purpose. There is no affirmative showing that one of any other dimensions was suitable or could have been used. In the absence of some positive evidence that a larger stick could have been used, negligence arising from its nonuse will not be presumed. As to the second contention, respondent's evidence shows that he exercised the utmost caution in using the stick after the foreman's promise had been made, and there is no evidence in the record which would justify us in holding him negligent as a matter of law in this regard. The question as to whether his manner of using the stick after the foreman's promise was careful or reckless was one of fact for the jury. The appellant's main contention seems to be that the respondent should have caused the edger to be stopped or the saws to be moved before he attempted to clean the chute. It insists there were two ways in which the work could have been done the one safe by stopping the edger or moving the saws, and the other unsafe by not stopping the edger or moving the saws-and that, as the respondent chose the latter method, he cannot recover. In support of this contention appellant cites Hoffman v. American Foundry Co., 18 Wash. 288, 51 Pac. 385; Johnson v. Anderson & Middleton Lumber Co., 31 Wash. 554, 72 Pac. 91 P.-40

107; Beltz v. American Mill Co., 37 Wash. 399, 79 Pac. 981; Hunter v. Washington Pipe, etc., Co., 43 Wash. 167, 86 Pac. 171; Laidley v. Musser Lumber Co. (Wash.) 88 Pac. 124. We do not regard any of these cases as applicable to the peculiar facts before us. all of them, except the Hoffman and Hunter Cases the injured plaintiffs had control of the machinery with the right and power to stop it. In none of the cases cited, except the Johnson Case, does it appear that any promise had been made similar to the one made to the respondent. In the Johnson Case, although the foreman had promised to fix the electric light, the plaintiff who had charge of the edger, with power to stop it, was shown to have been guilty of conduct which constituted contributory negligence as a matter of law, notwithstanding the promise made. The master's promise to provide safe appliances will not justify willful recklessness on the part of the servant. He must exercise reasonable caution while relying upon the promise and awaiting its fulfillment. The evidence here shows that the edger and saws were in the exclusive control of the edgerman, that they were not in the control of the respondent, and that it required three men to stop the edger. The evidence further indicates that the custom in appellant's mill was to clean the chute while the edger was running. It is not shown that the machinery was ever stopped, or that the saws were moved by respondent or any other employé, at any time in the history of the mill for the purpose of cleaning the chute. The fact that a long stick was provided indicates that it was to be used while the machinery was in motion. The foreman saw and permitted respondent to use the stick without stopping the edger or changing the saws, and even after the accident an iron bar was provided, showing that the appellant still intended to permit the cleaning of the chute without stopping the edger or moving the saws. evidence discloses no rule of the mill for doing the work in any other manner. These facts clearly distinguish this case from those cited by the appellant. Courts do not hold plaintiffs guilty of contributory negligence as a matter of law unless the circumstances are such that reasonable men may not differ as to the existence of such contributory negligence. The question of the existence or non-existence of contributory negligence upon the part of the respondent was under the evidence before us an issue of fact to be submitted to the jury.

The

The appellant further contends that the damages awarded are excessive. The respondent a young man 27 years of age, in good health, lost his left arm. We cannot hold that for such an injury the damages were excessive.

The judgment is affirmed.

HADLEY, C. J., and FULLERTON, RUDKIN, MOUNT, and DUNBAR, J., concur.