contract for the purpose of being passed as to quality, but that plaintiff. without cause, failed, neglected, and refused to pass such cattle or any part thereof, except 222 head, whereupon defendant elected to rescind the contract and thereafter sold and disposed of the cattle to other parties. The reply put in issue the new matter alleged in the answer. After the commencement of the action a writ of attachment was sued out by the plaintiff and certain personal property seized by virtue thereof, but on motion of the defendant the attachment was dissolved. A trial was thereafter had and a verdict rendered in favor of the defendant. From the judgment entered on such verdict plaintiff appeals, complaining that the court erred in dissolving the attachment, in the giving of certain instructions to the jury, and in the admission of evidence. W. F. Butcher and M. D. Clifford, for appellant. W. W. Wood, for respondent.

BEAN, C. J. (after stating the facts). The argument in support of the motion to dissolve the attachment is that the complaint does not state facts sufficient to constitute a cause of action, because it does not allege that the plaintiff was ready, willing, and able to perform the contract on its part, or that it tendered or offered to pay the balance of the purchase price. This is not an action for a breach of the contract between the plaintiff and defendant. It is an action to recover back money paid by the plaintiff thereon as money had and received by the defendant for its use, on the ground that the contract has been wrongfully and unlawfully rescinded and put an end to by the defendant. In such an action the plaintiff is not required to allege or prove an offer of performance on its part, nor readiness to perform, whatever might be the rule in an action to recover damages for a breach of the contract. Main v. King, 8 Barb. (N. Y.) 535; Monroe v. Reynolds & Upton, 47 Barb. (N. Y.) 574. If one of the parties to a contract wrongfully refuses to comply therewith, the other party, if not himself in fault, may elect to treat the contract as rescinded and recover back the consideration, or whatever else has been paid thereon. Bishop, Contracts, § 834. And he is not obliged to allege or prove a tender or offer to perform the rescinded contract. action to recover back the money paid on a contract which has been wrongfully rescinded is in form assumpsit, and is on an implied contract within the meaning of the attachment laws of this state. 2 Enc. Pl. & Pr. 1016; S. C. V. Peat Fuel Co. v. Tuck, 53 Cal. 304. The complaint therefore states a cause of action, and the motion to dissolve the attachment should have been denied.

The record discloses that on August 20, 1905, the plaintiff's manager, William Hanley, and the defendant met by agreement in Bear Valley for the purpose of passing upon the quality of the cattle to be subsequently delivered by the defendant to the plaintiff

at Baker City in pursuance of the written contract; that defendant had at the time and place stated a band of 578 head of cattle which he offered to Hanley for the purpose of having him pass upon the quality; that after IIanley looked the band over he selected therefrom some 200 or 250 head as complying with the contract and such as he would be willing to accept when delivered, but the defendant, being dissatisfied with the manner in which Hanley, was cutting the cattle, notified him that he would refuse to be further bound by the contract, and subsequently sold the cattle to other parties, and never delivered or offered to deliver to plaintiff any cattle whatever under the contract in question. There is much testimony in the record as to what was said and done by the respective parties at the time the cattle were offered by defendant to plaintiff for the purpose of having them passed as to whether they were of the kind and quality called for by the contract, but this testimony is unimportant on this appeal. The question for trial was whether Hanley's acts and conduct amounted to a repudiation or abandonment of the contract, and the evidence in question was important as bearing on that question, but its weight and value were for the jury. Upon this point the court instructed the jury that if they found from a preponderance of the evidence "that at any stage of the passing upon the cattle in ques tion the plaintiff refused to pass and accept a three or four year old steer, which was not in fact thin flesh or rough or Holstein or Jersey blood, the defendant had the right to refuse any other or greater number of cattle for plaintiff's inspection, and that it would amount to a repudiation of the agreement on the part of the plaintiff"; and also that if "the defendant had at any place in Bear Valley at the time agreed upon 600 head of cattle of the kind, age, and quality required, and was ready, able, and willing to furnish them to the plaintiff to be then and there passed and accepted by it, and the plaintiff refused to pass and accept 278 head or any less number of such cattle, that the plaintiff made breach of and repudiated the agreement, and in that case it is not entitled to recover back any part of the money advanced by it upon the agree ment." By these instructions the jury were told in effect that the refusal of IIanley, the plaintiff's manager, to pass and accept any one animal which, in their opinion, the evidence showed to be of the kind and quality specified in the contract, would be such a repudiation of the contract by the plaintiff as would defeat a recovery in this action; but this is not the law. The rule is unquestioned that a party who has advanced money in part performance of a contract, and then refused to proceed to its ultimate conclusion, the other party being ready and willing to perform on his part, will not be permitted to recover back what he has advanced..

The

Ketchum & Sweet v. Evertson, 13 Johns. (N. Y.) 359, 7 Am. Dec. 384; Hansbrough v. Peck, 5 Wall. (U. S.) 497, 18 L. Ed. 520; Gibbons v. Hayden (Kan. App.) 44 Pac. 445; Neis v. O'Brien, 12 Wash. 358, 41 Pac. 59, 50 Am. St. Rep. 894; Walter v. Reed, 34 Neb. 544, 52 N. W. 682. But It is not every breach that will amount to such a repudiation or authorize the other party to rescind the contract and retain what has been paid or advanced thereon. nature of each case must be considered, and, as Mr. Bishop says, it is probably impossible to state a rule applicable to all the varying facts. After quoting from some of the decisions, he says: "In general terms, the doctrine is that the breach, to justify a rescission, must be of a dependent covenant, or willful, or in a substantial part comprehending the root of the whole." Bishop, Contracts (En. Ed.) § 828. And if the breach by a vendee be not of such a character as to amount to a repudiation of the contract or a refusal to proceed to its ultimate conclusion, and the seller, without a demand or offer to perform and without notice to the vendee, disposes of the subject of the contract, the latter may treat it as a wrongful rescission, and the law will give him a right of action to recover back the consideration paid in part performance. Monroe v. Reynolds, 47 Barb. (N. Y.) 574; Fancher v. Goodman, 29 Barb. (N. Y.) 315; Raymond ▼. Bearnard, 12 Johns. (N. Y.) 274, 7 Am. Dec. 371.

Now, in this case, the cattle which defendant agreed to sell and deliver to the plaintiff were to be passed as to quality in Bear Valley before being driven to Baker City for final delivery. It was the duty of the plaintiff to comply in good faith with this part of the contract, and if by words, or by their equivalent in acts, it refused to do so, the defendant could lawfully rescind. But before he could treat the contract as at an end, dispose of the property to other parties and keep the $3,300 advanced thereon by the plaintiff, it must appear that the plaintiff's words, acts, or conduct were wilful or amounted to a repudiation or abandonment of the contract "in some substantial part, comprehending the whole." The mere refusal to pass cattle which in fact complied with the contract, if done in good faith, would not of itself amount to such a repudiation, and would not justify the defendant in rescinding the contract, although it might render plaintiff liable in damages for a breach thereof. The case turns upon the question whether the plaintiff abandoned or repudiated the contract, or, in other words, refused to proceed to its ultimate conclusion, and not whether its agent may have been mistaken in his judgment as to the quality of some of the cattle offered to him by the defendant for passing, or whether he may have been unnecessarily exacting in his 87 P.-10

requirements as to quality. The case should have been submitted to the jury upon this theory, leaving them to find from the entire testimony whether plaintiff's acts and conduct amounted in effect to an abandonment or repudiation of the contract or a refusal to comply with its terms. The instructions as given were erroneous because they did not conform to this principle. These instructions and others given by the court were also erroneous because they imposed the duty upon plaintiff, not only to pass the cattle as to quality in Bear Valley, but to accept them at that place, while the contract expressly provides that the cattle shali be delivered, accepted, and paid for at Baker City. They were to be passed as to quality only in Bear Valley, and no acceptance was contemplated until final delivery.

The defendant was permitted to prove on the trial, over plaintiff's objection and exception, that about the time the plaintiff's manager began inspecting the cattle in Bear Valley he made arrangements with one Brown to turn in on his contract with plaintiff 150 head belonging to Brown if necessary. This evidence was, we think, under the circumstances, incompetent. The plaintiff was not informed of the arrangement between defendant and Brown, nor was it advised that the Brown cattle were to be considered as a part of the number which the defendant agreed to sell to it, nor was any such cattle offered to it for passing as to quality. The arrangement was wholly between Brown and the defendant, and had no connection with the contract in question. Moreover, no objection was made by plaintiff to passing upon the cattle offered because the entire number was not tendered at the time, nor did it refuse to proceed with the contract on that account. It therefore cannot now claim that defendant did not comply with his contract because he did not offer for passing at the time the entire number of cattle which he agreed to deliver at Baker City. Judgment reversed, and new trial ordered.

(48 Or. 430)

LINDSAY v. GRANDE RONDE

LUMBER CO.*

(Supreme Court of Oregon. Oct. 23, 1906.) 1. MASTER AND SERVANT-SAFE PLACES TO WORK-PLEADING-SUFFICIENCY.

In an action for injuries to an employé sustained in running logs down a shoot for defendants, a complaint alleging that without the enforcement of regulations governing the manner in which the work was to be done the place at which plaintiff was working was extremely dangerous, and that defendant neglected to promulgate or enforce any rule or regulation for the safety of its employés, the want of which was the cause of the accident, and that defendant had an employé at the head of the shoot to start the logs and warn the employés below, but that shortly before the accident such employé had been removed and others directed to send the logs down without any system, after which plaintiff was injured, is *Rehearing denied December 11, 1906.

[Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 816-825.]

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2. APPEAL EXCESSIVE VERDICT QUESTION OF FACT.

The refusal of the trial court to set aside a verdict as excessive cannot be reviewed on appeal, as it presents a question of fact, which the Supreme Court cannot examine.

[Ed. Note. For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 3873.]

Appeal from Circuit Court, Union County; Robert Eakin, Judge.

Action by G. II. Lindsay against the Grande Ronde Lumber Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action to recover for an injury received by the plaintiff while in the employ of the defendant, and alleged to have been caused by its negligence. The defendant is a corporation engaged in the lumber and logging business in Union county. At one of its camps logs were shot from the top of a mountain to the Grande Ronde river, some considerable distance below, through a trench -commonly called a "ground shoot"-made by plowing a couple of furrows and dragging a log through them. The course of this shoot is broken about 10 or 12 rods down the mountain side by a level place called the "middle bench." Logs were hauled by teams from where they were cut in the woods to the head of the shoot, and there started down toward the river, but, as the shoot was very steep to the middle bench, they descended so rapidly that many of them jumped or bounded from the shoot and stopped at that point. It was therefore necessary for defendant to have men and teams stationed at the middle bench to put the logs back into the shoot and start them on down to the river. The plaintiff had been employed at the logging camp for some time prior to the accident, but knew nothing of the manner in which the work was conducted at the shoot until about the day before, when he was put to work in the timber near by and observed that four or five logs were allowed to accumulate at the head of the shoot, when a man named Kinney would start them down in lots of four or five at a time, first giving warning to the men at work at the middle bench. About 8:30 o'clock on the morning of February 16, 1905, plaintiff was put to work at the middle bench to assist in sending the logs on down, without being instructed or informed as to the manner of conducting the work and with no knowledge upon that subject, except such as he had obtained from observation. After he and his fellow workmen had cleared up the logs that had accumulated at the middle bench they retired a short distance and called for more logs, when Kinney sent others down to them. Some of the logs started by Kinney jumped from the shoot, and while

them back, preparatory to starting them on their journey, plaintiff heard Cameron, one of the teamsters, halloo at the top of the mountain, and, looking up, saw a log coming down the shoot very rapidly. He started to run to get out of its way, but was unable to do so. The log bounded out of the shoot and struck him, crushing his hip, dislocating his shoulder, and otherwise seriously and permanently injuring him. He was taken by friends to a hospital at Baker City, where he was confined for 260 days under the care of a physician; his hospital and physician's fees amounting to $1,400. At the time of the accident he was 33 years of age, in perfect health, and of unusual vigor and healthful physique, but his shoulder is now stiff, and little use can be made of his arm, and his leg is crooked, about four inches short, badly shrunken, and its proper use and strength permanently lost. account of his injuries and the suffering he underwent his general health is somewhat impaired, and he is incurably and permanently mained and disabled.

On

The complaint, after setting out the facts substantially as stated, alleges that by reason of the grade of the shoot from the top of the mountain to the middle bench, and the danger incident to the work of sending logs. down it, it was necessary and indispensable for the safe conduct of the work and for the safety of persons engaged therein to have a sufficient number of competent men and appliances stationed at the top of the shoot to start the logs down in a systematic and regular manner, and to see that no logs were started without due notice and warning to the men at work on the middle bench, and a sufficient length of time allowed to enable them to. get to a place of safety; that it was also indispensable to the safe conduct of the work and the safety of its employés for the defendant to promulgate and enforce rules and regulations for the government of its employés while engaged in such work, and without such rules and regulations and proper instructions as to a safe, prudent, and systematic manner of doing the work the same became and was needlessly hazardous and dangerous to persons at work at the middle bench, who could not by ordinary care and precaution foresee or avoid such dangers; that the ground shoot was insufficient in depth and width to conduct the logs safely down the same, and by reason thereof the middle bench was rendered unusually and needlessly dangerous as a place to work in, and particularly so unless a system and rules for the safe conduct of the work were promulgated and enforced by the defendant, requiring that warning be given to the men at the middle bench and sufficient time prior to starting a log down the shoot allowed them in which to retire to a place of safety; that at the time plaintiff was detailed for work at the middle bench

by defendant an employé with a team was stationed at the head of the shoot to attend to starting the logs down and to see that warning was given a sufficient time beforehand to permit the employés at work at the middle bench to take precautions as to their safety; that such employé had no other duties to perform, and while he was attending to his duties logs were sent down at certain and regular intervals, and after such logs as stopped at the middle bench had been cleaned up such employé gave notice and warning before the next succeeding lot were sent down, and in such manner the employés at work at the middle bench could safely perform their duty; that plaintiff believed and was led to believe that the work would so continue, but a short time after he commenced work the defendant, disregarding his safety and without notice to him or with his knowledge, removed such employé and team from the top of the shoot and directed and instructed the teamsters who were hauling the logs to start them down the shoot immediately upon their arrival at its head, without any rules or regulations and without any provision for warning to the persons at work at the middle bench; that immediately after the removal of the employé from the head of the shoot the log which caused the injury to the plaintiff was sent down by one of the teamsters without notice or warning to him; that for want of such notice or warning he had no means of knowing or realizing the danger, and it was impossible for him to take the necessary precaution for his safety; that at the time he commenced work at the middle bench he relied and believed that proper and sufficient warning would be given, and that proper rules and regulations governing the conduct of the work had been promulgated and would be enforced, and he had no notice or information that the logs would be sent down the shoot other than in a regular and systematic manner, and he was not instructed or informed as to the danger that resulted in his injury; that the defendant knew, or could by the exercise of reasonable diligence have known, of the dangers and that the work of sending logs down the shoot could not be conducted with safety without promulgating and enforcing rules and regulations for the safe conduct of the work, and that defendant knew, or by the exercise of reasonable diligence could have known, that to conduct the work without such rules and regulations and the enforcement thereof subjected plaintiff to an unforeseen and unusual peril that resulted in his injury, notwithstanding which defendant neglected, failed, and omitted to promulgate or enforce any sufficient rules or regulations for the safe conduct of the work, and neglected, failed, and omitted to give any notice or in any manner warn plaintiff of the dangers; that the defendant through its negligence caused the log which injured

plaintiff to be started down the shoot without sufficient previous notice to him, and, in disregard of his safety, operated the work at the top of the shoot at the time of the accident in a careless and negligent manner which caused and resulted in the accident and injury to the plaintiff.

The answer denies all the allegations of the complaint, except the incorporation of the defendant, that it was engaged in the lumber and logging business, and that the plaintiff was employed by it at the time of his injury. For an affirmative defense it is alleged that the injury to plaintiff was not due to the negligence of the defendant, but was the result of the ordinary hazards of his employment and the negligence of a fellow servant; that the shoot mentioned in the complaint was properly and safely built and kept in good repair, and the jumping of the logs therefrom as alleged was not due to its faulty construction, but was one of the ordinary incidents of the business of sending logs down such a shoot and a hazard of the employment; that defendant had previously adopted, promulgated, and was enforcing rules and regulations known to the plaintiff for the conduct of its employés in running logs down the shoot; that one of these rules provided that before a log should be started the men at work at the middle bench should be notified, and if the shoot was clear they should immediately seek a place of safety at least 100 feet from the shoot and out of danger in case a log should leave the shoot, and when in such position they were to notify the employé of the defendant stationed at the head of the shoot, who would then start the log down; that this rule was fully complied with by the parties stationed at the head of the shoot. but that the plaintiff negligently and carelessly failed to seek a place of safety after timely warning had been given, and thereby contributed to the cause of his injury. The reply denied all the affirmative allegations of the answer.

Upon the issues thus joined the cause was tried to a jury and verdict rendered in favor of the plaintiff for $17,000. A motion for a new trial, on the grounds (a) that the verdict is excessive and appears to have been given under the influence of prejudice and passion, (b) insufficiency of the evidence to justify the verdict, and (c) error of law occurring at the trial, was overruled and From this judgment entered on the verdict. judgment the defendant appeals, assigning error as follows: (1) The overruling of a motion for nonsuit and the refusal to direct a verdict for defendant; (2) refusing to instruct the jury that if Kinney, the person placed at the top of the shoot by defendant to start logs down, did start the log which struck and injured plaintiff, they must find for the defendant; (3) instructing that, if the negligence of the defendant materially

contributing to the Injury of the plaintiff concurred with the negligence of a fellow servant, the defendant is liable, even if the negligence of the fellow servant contributed to the cause of the injury; (4) instructing the jury that if the work in which plaintiff was engaged at the time of his injury was such as to require rules and regulations for the reasonably safe conduct thereof, and the defendant failed and neglected to provide such rules and regulations and such failure was the proximate cause of the injury, the plaintiff is entitled to recover if he was not negligent himself; (5) modifying two instructions requested by the defendant, to the effect that, if the accident to the plaintiff was due to the negligence of a fellow servant, plaintiff could not recover, by adding thereto the proviso if defendant was itself without negligence; and (6) the overruling of the motion to set aside the verdict because it is excessive and the result of prejudice and passion.

T. H. Crawford and Zera Snow, for appellant. Leroy Lomax and Gustav Anderson, for respondent.

BEAN, C. J. (after stating the facts). It is unnecessary to notice the alleged errors seriatim, for they are all, except the last, based upon the theory that the complaint charges but one specific act of negligence as the proximate cause of the injury to the plaintiff, and that is the removal by the defendant of the employé Kinney from the head of the shoot a short time before the log causing the injury to plaintiff was sent down, and directing the teamsters who were hauling logs to start them down without instructing them how to do so with safety to the plaintiff and others working at the middle bench. With this construction of the allegations of the complaint as a premise, counsel argue that the motion for nonsuit was well taken because the proof shows, as they claim, that Kinney was not removed from the head of the shoot, but was at work there at the time the log causing the injury to the plaintiff was started down, and was in fact the person who started it, and that it was error for the court to instruct the jury in reference to the duties of the defendant to promulgate and enforce suitable rules and regulations governing the work of sending logs down the shoot, because such instructions were not within the issues made by the pleadings. In this construction of the complaint we are unable to concur. is perhaps unnecessarily long and prolix, but it manifestly proceeds upon the theory that it was the duty of the defendant to exercise reasonable care and prudence to provide the plaintiff with a reasonably safe place in which to work, and that from the nature and character of the work at the middle bench, and the dangers necessarily attending it, it was not such a place unless the defendant had established and enforced

It

adequate rules or regulations among its employés governing the manner in which the work should be done, and providing for proper and timely warning to the men at work at the middle bench before logs were started down the shoot.

It is expressly alleged that without the enforcement of such rules or regulations the place at which plaintiff was put to work was extremely hazardous and dangerous, and that defendant failed and neglected to promulgate or enforce any rule or regulation for the safety of its employés, and that the want of such a rule or regulation was the cause of the accident to the plaintiff. That the place at which plaintiff was put to work was extremely dangerous and unsafe without the strict enforcement of a rule or regulation requiring the men to be warned of the approach of a log, a sufficient length of time allowed to seek a place of safety, and that a failure or neglect of the defendant to promulgate and enforce some such regulation would be actionable negligence, are too clear for argument. Hartvig v. North Pacific Lumber Co., 19 Or. 522, 25 Pac. 358. And one of the issues made by the pleadings and tried in the lower court was whether the defendant had discharged its duty in this regard. The complaint alleges that it had failed and neglected to provide or enforce such a rule or regulation. This averment is not only denied by the answer, but it is affirmatively alleged that defendant had promulgated and enforced a rule requiring that before a log should be started down the shoot the men at work at the middle bench should be notified and given time to place themselves in a position of safety, and that after they had done so they were to notify the parties stationed at the head of the shoot, who should then send the log down. To disregard these averments of the pleadings and the issues thus tendered and made would be giving to the complaint altogether too technical a construction for the practical administration of justice, and especially so since the question does not seem to have been raised or suggested until the trial.

It is true the complaint alleges that on the morning plaintiff went to work at the middle bench defendant had an employé (which the evidence shows to have been Kinney) stationed at the top of the shoot to attend to starting the logs and to see that warning was given to the employés working at the middle bench in time to take precaution for their safety, and that while he was attending to his duties logs were sent down at regular intervals, and notice and warning given before the next succeeding lot were started, and that in such manner the work was safely conducted, but that a short time before the accident this employé had been removed and the teamsters directed to send the logs down immediately and without any system, and that after the removal of such employé