ror intervened, which hereafter will receive | degree of care that an ordinarily prudent perfurther consideration. In New Orleans & N. R. Co. v. Jopes, 142 U. S. 18, 12 Sup. Ct. 109, 35 L. Ed. 919, it was said: "It would seem on general principles that if the party who actually causes the injury is free from all civil and criminal liability therefor, his employer must also be entitled to a like immunity." In Doremus v. Root et al., 23 Wash. 710, 63 Pac. 572, 54 L. R. A. 649, it was held that a verdict in favor of the conductor, who was sued jointly with the railroad company, would preclude a judgment against the railroad company, where the negligence charged grew out of the conduct of the conductor. To the same effect is Indiana Nitroglycerine, etc., Co. v. Lippincott Glass Co., 165 Ind. 361, 75 N. E. 649. son would or ought to have exercised under the same or similar circumstances; that the loss or disappearance of the jewelry from the car would not entitle appellant to recover, as the Pullman Company could not be held to have insured its safety if she retained the custody; that in order to render it liable, the loss must have occurred by its failure to exercise reasonable care to protect the same, and its failure to exercise such care would render it liable to appellant; that appellant was required to establish that she exercised reasonable care for the safety of her property, and that ordinary care and diligence was imposed upon the Pullman Company to protect appellant's jewelry from being taken or stolen, and if the failure to exercise reasonable care on the part of the Pullman Company was the proximate cause of appellant being deprived of her property, the Pullman Company would be liable. [4] As to the third paragraph of complaint, which charges appellee with conversion, appellant does not insist that this paragraph was sustained by the evidence, nor could she with any degree of plausibility so contend under the facts, for, giving the facts and the inferences to be drawn therefrom their most favorable construction in her behalf, no more is disclosed than that the porter of the Pullman Company had knowledge that the parcel containing the diamonds at the time she entered the car was placed in an upper berth by appellant just above the berth to be occupied by herself and husband. Appellant did not part with the actual possession of the parcel; it was not turned over to the servants of the Pullman Company. Hence we need consider further only the issue of negligence as joined upon the second para-able care and caution to protect the same possession and control is to exercise reasongraph of complaint. This brings us to the merits of the instructions upon the question of liability under the issue of negligence, and which involves the correctness of many instructions given by the court on its own motion, as well as numerous instructions tendered by appellant and refused to be given by the court. The jury was instructed that if appellant established by a preponderance of the evidence the material allegations of either the second or third paragraphs of complaint, she would be entitled to recover against the Pullman Company, and that as to the second paragraph, she would have to establish that her jewelry was taken or stolen as alleged, and that the Pullman Company was guilty of negligence as charged, and which was the proximate cause of her loss, and that she was not guilty of negligence that proximately contributed to such loss, which, the jury was informed, were questions of fact for it to determine; and that negligence under the circumstances was the doing of some act or thing that an ordinarily prudent person would not have done, or the failing to do some act or thing that an ordinarily prudent person would have done under the circumstances; and that reasonable or ordinary care was that The principal objection pressed by appellant to the instructions given, of which the above is a brief summary, is that a higher degree of care is imposed upon a carrier holding itself out to the public as furnishing sleeping car accommodations than embodied in the court's instructions; that the exercise of ordinary care under the facts and circumstances here presented was not sufficient. sidered in Repp v. Indianapolis, C. & S. Trac[5, 6] This question has recently been conthere adduced from a review of the authorition Co., 111 N. E. 614; and the rule of law ties is that the carrier's duty with reference to personal effects retained in the passenger's from loss or injury. That where the effects are kept within the possession of the passenger, the carrier is not the insurer of the safety of such effects, but liable for loss or injury With resulting from negligence, where the carrier In Voss v. Wagner Palace Car Co., 16 Ind. said: Coach Co. v. Diehl, 84 Ind. 474 [43 Am. Rep. "In the case of Woodruff Sleeping & Parlor 102], our Supreme Court very clearly defined the duties and liabilities of sleeping car companies toward occupants of berths upon their coaches. It was there held that such companies are not liable, either as innkeepers or common carriers, for the loss of goods or money, but that they are responsible for such losses when the same occur through the negligence of the as he did in his argument to the jury; that company or its servants." it was not a paper in the case. The identi See, also, Shearman & Redfield on Negli- cal questions and answers referred to by gence (6th Ed.) vol. 2, § 526b. counsel in his argument went into the record on cross-examination of appellant, and if the same had been transcribed by the court reporter from his record and furnished counsel, he would have had a similar document so far as the language was concerned, as the one from which he read, and to the extent that it was made use of by counsel, it was a paper or document in evidence in the case, and as against the objection urged no prejudicial error was committed against appellant in this behalf. [8] A Pullman Company's passenger check was put in evidence, which contained the following: As disclosed by the instructions of the court to the jury, the question of liability of the appellee Pullman Company, the degree of care exacted of it in reference to appellant's property, as well as the question of negligence on the part of appellee Pullman Company, and contributory negligence on the part of appellant, were all submitted to the jury, and under instructions that appear to have clearly stated the law in harmony with the foregoing decisions, and many others that might be cited. And the language employed by the court in instructing the jury seems to have been as favorable to appellant as could have been employed, and under the instructions, which informed the jury that if appellant was deprived of her jewelry by And in the argument of the cause to the reason of appellee Pullman Company or its jury, appellant's counsel was refused permisservants failing to exercise reasonable care | sion to discuss the law relative thereto, being therefor, a verdict was returned for such informed by the court that he could read the company. Therefore no harm resulted to appellant on account of a verdict being directed by the court in favor of the railroad company, although, no doubt, the trial court would not have directed a verdict in this behalf if it regarded the Pullman Company as the servant of the railroad company, as numerous well-considered authorities hold. It is not necessary to a decision of this case that we pass upon the question as to whether the amount of personal effects in the way of jewelry carried by appellant might be regarded as of such extraordinary value as to bring the case within the exceptions heretofore announced. "Property taken into car will be entirely at owner's risk." instructions of the court to the jury as the law of the case and make the application of such law to the facts. It is appellant's contention that the provision in the Pullman passenger check, as aforesaid, was void, and that he had a right to so state the law in this respect to the jury, and especially was it error to refuse him permission to do so in view of the fact that the court gave no specific instructions in reference thereto. No instruction given refers specifically to the passenger check nor its contents, but irrespective of the same, the jury was informed that if the Pullman Company failed to exercise reasonable care for appellant's property while within its car under the circumstances disclosed by the evidence, and that it was lost or stolen by reason thereof, the Pullman Company would be liable for such loss. Thus, in effect, no importance was attached by the instruction of the court to the provision in the ticket; the instructions in this connection were quite favorable to appellant, and the action taken by the trial court in reference to the passenger check was not prejudicial to appellant. As to the force of such a provision in a passenger's check, we express no opinion; it being unnecessary to a disposition of the cause. [7] Appellant, as a party, was examined out of court before the day of trial, as the statute provides, and upon the trial of the cause, and by way of impeachment, she was asked if she did not make certain answers to questions theretofore propounded to her in such examination; the questions and answers being read to her from such examination, and the record here discloses by her testimony that she made the answers as set forth in the examination referred to. Counsel in argument, over the objection of appellant, read such questions and answers that he propounded on cross-examination from the examination taken out of court and com- After a consideration of each of the quesmented upon the same. Appellant insists tions presented, we have reached the concluthat in the absence of the examination itself sion that no error was committed by the being put in evidence, it was improper for trial court that calls for a reversal of the appellee's counsel to make use of the same judgment. The same is therefore affirmed. (275 III. 267) RESCIS THOMAS v. SEAMAN et al. (No. 10741.) (Supreme Court of Illinois. Oct. 24, 1916.) 1. VENDOR AND PURCHASER 114 SION FOR BREACH OF CONTRACT-WAIVER. Where plaintiff contracted to buy land and make payment in installments, his action in investigating a proposition for exchange did not alter the status of his relation with the vendor or waive his right to rescind the contract by reason of breach by the vendor in failing to give him a deed at the time provided in the contract. [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. 88 202-204; Dec. Dig. 114.] 2. VENDOR AND PURCHASER 75-CONTRACTS -CONSTRUCTION. An installment contract for the purchase of land which imposes upon the purchaser a forfeiture of all his rights under it in consequence of the failure to literally comply with its obligations should not be so construed as to allow the vendor an unreasonable length of time to perform in case of breach by him. [Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. §§ 113-118, 126; Dec. Dig. 75.] 3. Vendor AND PURCHASER 159 CON TRACTS. A delay of one year and eight months in delivering a deed pursuant to an installment contract for the sale of land was unreasonable. [Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. §§ 321-323; Dec. Dig. 159.] 4. VENDOR AND PURCHASER 159-ACTION FOR BREACH OF CONTRACT-WAIVER. Under an installment contract for the sale of land providing that the vendor furnish a deed upon the receipt of a payment named where the purchaser made demand for the deed many times over a period of 20 months but at each time subsequent to the first demand insisted on damages before he would complete the contract, while the further negotiations between the parties show the purchaser's willingness to waive the breach and receive the deed on conditions, neither the further demands nor the fact that he remained in possession, as was his right under the contract, shows an unqualified waiver of the purchaser's right to insist upon forfeiture. [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. 88 321-323; Dec. Dig. 159.] Error to Appellate Court, First District, on Appeal from Municipal Court of Chicago; Oscar M. Torrison, Judge. Suit by Edwin S. Thomas against Stephen D. Seaman and others. Judgment for plaintiff, and defendants appealed to the Appellate Court, and from a judgment of affirmance (195 Ill. App. 396) he brings certiorari. Affirmed. Howard M. Carter and Francis W. Walker, both of Chicago (W. W. Gurley, of Chicago, of counsel), for plaintiffs in error. Haase & Howard, of Chicago, for defendant in error. CRAIG, C. J. Defendant in error, Edwin S. Thomas, brought suit in the municipal court of Chicago against plaintiffs in error, Stephen D. Seaman and Henry A. Blair, to recover the amount paid on a written contract for the purchase of an 80-acre tract of irrigated land in Conejos county, Colo., together with 80 shares of capital stock of the Seaman Syndicate Ditch Company. The action was brought to rescind the contract and recover back the purchase money paid, and $1,000 in addition for improvements placed on the land. A trial was had before the court and a judgment was rendered in favor of defendant in error for $3,334.25. A motion for a new trial was made and overruled and judgment entered for the above amount. The plaintiffs in error prosecuted an appeal to the Appellate Court for the First District, which affirmed the judgment of the lower court. A writ of certiorari was allowed by this court, and the cause is now in this court pursuant to the mandate of such writ. On March 11, 1911, the defendant in error, Edwin S. Thomas, of Washington, Iowa, entered into the contract in question with Stephen D. Seaman, of the city of Chicago, for the purchase of the 80 acres in question and 80 shares of the capital stock of the Seaman Syndicate Ditch Company, a company that had been formed to furnish water for the purpose of irrigating these lands. The purchase price of the land was $5,400, payable $1,800 on the execution of the contract, $1,200 on or before March 11, 1912, $1,200 on March 11, 1913, and $1,200 on March 11, 1914, each of the deferred payments being evidenced by a promissory note payable to the order of Seaman, the last two notes bearing interest at the rate of six per cent. per annum, payable semiannually. The 80 shares of stock in the Seaman Syndicate Ditch Company were pledged as security for the payThe contract further ment of these notes. provided that when the note due on or be fore March 11, 1912, was paid, the buyer should be entitled to an abstract of title and warranty deed to the land, subject to the existing rights and reservations made in the contract and the payment of the two remaining installments of the purchase price. It also contained the following among other additional provisions printed on the back thereof, viz.: "3. While buyer is not in default he may have possession of said premises and use of water land and ditch stock is delivered. on said ditch stock until title by deed to said "4. If seller fails at any time to carry out the terms of this contract, then all the purchase price, and the interest that has been paid at such time, may be returned to buyer by seller in full accord and satisfaction of all claims of buyer hereunder. tract all sums theretofore paid are to be retain5. If the buyer fails to carry out this coned by seller as rent and liquidated damages, and seller shall have right to re-enter and take possession of said premises and terminate buyer's use of water hereunder. The seller may also, at any time buyer is in default under this contract, terminate the same by giving buyer notice by mail, directed to buyer at his post office address given herein. "6. Time shall be the essence of this contract, and if at any time the same shall be forfeited and determined in the manner above provided, the buyer hereby covenants and agrees to surren der and deliver up said premises peaceably to seller immediately upon such termination, and if buyer remains in possession of said premises after such termination he shall be deemed guilty of a forcible detainer of said premises under the statute, and shall be subject to all conditions and provisions above stated, and to eviction and removal, forcible or otherwise, with or without process of law." Defendant in error made the first payment of $1,800 on the execution of the contract, and between March 11 and April 4, 1911, entered upon the land and began farming it. On April 4, 1911, he made the second payment of $1,200 and demanded of Seaman the abstract and deed to the land pursuant to the terms of the contract, and to which he was then entitled according to the terms of the contract. No deed or abstract was delivered to defendant in error at that time or at any other time until December 26, 1912, when a deed and abstract were tendered to him at Fairfield, Iowa, and refused by him for the reason that he claimed $1,200 damages for delay in delivering the deed with a clear title to the land. In April, 1912, defendant in error again demanded of Seaman the deed and abstract, and stated that if the same were not delivered at once he would start suit to recover back the purchase money. This suit was commenced on June 4, 1913. Plaintiffs in error admit they were in default in complying with the terms of the contract, but insist that defendant in error has waived his right to insist upon such default by reason of his continuing in possession of the property after the time specified in the contract for the delivery of the deed and abstract, by his letter written to them in respect to the land, and by negotiations had with other parties with a view of selling or trading the property in controversy to them for other land. On July 17, 1912, a circular letter was sent to defendant in error stating that an adjustment of the difficulties among the members of the Seaman syndicate was being made and that it was necessary to have an exact statement of the condition of each account. In this letter the purchase price of defendant in error's land is given as $5,400, amount paid $3,000, balance of $2,400 unpaid, due March 11, 1913 and 1914, respectively, with interest at six per cent. The letter further stated that it was the desire of the syndicate that his rights as purchaser should be fully protected, and it would greatly assist them in so doing if he would advise them if the statement showed his account correctly. On August 12, 1912, defendant in error replied to this letter, stating that he had been entitled to a deed for about a year and four months, which he should have received upon making the second payment; that the above account was correct, only that he was entitled to some favors, and this must be granted by a liberal deduction of interest, and some damage done his crops, amounting to $80, that they had agreed to pay and which he wished deducted from the above amount. On September 28, 1912, defendant in error received a letter advising him that the Seaman syndicate had been dissolved and its property divided up, a part of it going to Seaman and a part of it to Blair, and that the land purchased by him was in that allotted to Blair, who was arranging to have the blanket mortgage removed from the lands, so that within a short time he would be in a position to give every purchaser entitled thereto a deed to the land; that the business would be continued along business lines, which he thought would be satisfactory to defendant in error, and stated that he would count on his co-operation in the work, which he trusted would be done to their mutual benefit, and asked where he expected to be for the next 30 days. On October 1, 1912, defendant in error replied to this letter, stating that he was glad to learn the Seaman people were getting things straightened out; that he could depend upon his helping them all he possibly could, and would be glad to have him call upon him either at his home or at Fairfield, Iowa. At [1] There are other letters and telegrams in evidence of negotiations had between defendant in error and O'Connor Bros., of Grand Forks, N. D., during November and December, 1912, relative to a trade of the 80 acres in controversy in part payment for 320 acres of land in North Dakota. The plaintiffs in error were not parties to these negotiations and do not appear to have known of the same until after they were terminated, or to have in any way altered their position or conduct in the matter on account of the negotiations had between the defendant in error and O'Connor Bros. the time these negotiations were pending plaintiffs in error were urging defendant in error to make some kind of a settlement of their controversy and take the land. When the offer was made for an exchange of properties defendant in error had a right to investigate the advantages of such proposition, and might do so without altering the status of his relations with plaintiffs in error or waiving his right to rescind the contract by reason of the breach on the part of plaintiffs in error. We think the evidence, therefore, of these negotiations had no material bearing upon the issue in this case and that the court did not err in disregarding them. [2-4] By the terms of the contract defendant in error was entitled to an abstract of title, deed and possession of the land as soon as he made his second payment. This was made on April 4, 1911. On that date he became entitled to his abstract of title and deed to the property and made a demand on Seaman for the same in accordance with the provisions of his contract. Seaman promised to deliver them within a few days, but failed to do so. The evidence tends to show that between that time and April, 1912, defendant | to enter as soon as his second payment was in error made other demands upon plaintiffs made and to remain in possession until he in error for the abstract and deed, and at each time was put off with the promise that they would be submitted within a short time or a few days. It was never done until December 26, 1912, or a year and eight months after defendant in error was entitled to his deed under the contract. By the sixth clause of the contract time was the essence of the contract. By the third clause defendant in error was entitled to possession of the premises so long as he was not in default, and by the fourth clause it was agreed that in case of default of the seller the purchase price, and interest thereon, should be received in full accord and satisfaction of all claims under the contract. By the fifth clause it was provided that if the buyer failed to carry out the contract all payments made thereunder should be retained by the seller as rent and liquidated damages, and that at any time the buyer was in default the seller might terminate the contract by giving notice to him at his post office address as given in the contract. Contracts of this character, which impose upon one of the parties to it forfeiture of all of his rights under it in consequence of the failure to literally comply with its obligations, ought not to be so construed as to allow the other party an unreasonable length of time to perform that part of the contract which he contracted to perform in case of a breach by him. In Harding v. Olson, 177 Ill. 298, 52 N. E. 482, we held that a delay of four months in delivering the deed pursuant to the contract was an unreasonable delay. We think the rule announced and applied there controls this case. In an action against an employer for death of its servant, where plaintiff's proof warranted a finding that decedent was a mere employé of defendant, which undertook to furnish him with the conclusion to be reached from the testimony safe scaffolding, and negligently failed to do so, depending on the credit which should be given the several witnesses, and the inferences to be drawn from their testimony and from the somewhat ambiguous documentary evidence, it was error to dismiss the complaint at the close of the evidence on both sides on the ground that the evidence showed decedent to have been an the jury. independent contractor, as the question was for [Ed. Note. For other cases, see Master and Servant, Cent. Dig 1004; Dec. Dig. 284(2).] Appeal from Supreme Court, Appellate Division, Fourth Department. dismissing the complaint at the cost of the evidence on both sides, plaintiff appeals. Judgment reversed, and new trial granted. Alonzo G. Hinkley, of Buffalo, for appellant. Almon W. Lytle, of Buffalo, for respondent. Action by Annie L. Maxwell, as administratrix of the estate of Charles W. Maxwell, deceased, against G. H. Peters Company. Plaintiffs in error do not deny that they From a judgment of the Appellate Division were in default in the performance of their (166 App. Div. 957, 151 N. Y. Supp. 201), part of the contract, but rely upon acquies-affirming a judgment of the Supreme Court cence in the breach and waiver by defendant in error of such default. We think the evidence fails to make out such case. Defendant in error insisted, as soon as he made his second payment, on being furnished with the abstract and deed according to the terms of his contract. While it is true the further negotiations between the parties show a willingness to waive the breach and receive a deed upon certain conditions, it does not show defendant in error made an unqualified waiver of his right to insist upon the forfeiture for such default. On the contrary, his first letter shows that he insisted damages must be allowed him before he would complete the contract. The same insistence is found in all the subsequent negotiations between the parties. Plaintiffs in error never complied with these conditions. The fact that he remained in possession of the prop- There was evidence tending to support erty after his right to rescind had accrued is such defense; but it was not conclusive, nor unimportant when it is considered that he did the testimony come from disinterested had a right, under the terms of the contract, witnesses whom the jury were bound to be PER CURIAM. This is an action under section 18 of the Labor Law for negligently causing the death of the plaintiff's intestate, alleged to have been an employé of the defendant, by furnishing unsafe, unsuitable, and improper scaffolding upon which to do his work as a roofer. The complaint was dismissed on the ground that the evidence showed the decedent to have been an independent contractor and not an employé to whom the defendant stood in the relation of master. |