Cushing v. Field.

the said Field shall pay his obligation given this day for the same, in good faith, and the same as if this agreement had not been given at all.

"The above goods shall be well housed and properly cared for at all times.

"All the above goods are warranted from flaws or other defects in manufacturing.

"GRANITE AGRICULTURAL WORKS,

"C. B. MAHAN, Agent."

"I hereby accept the terms of the above agreement, and will accept the goods named above in good faith, and do the best I can soon as sent to sell the same and pay for them as above specified. "EDWARD A. FIELD."

The Granite Agricultural Works were burned, and a mowing machine valued at seventy-five dollars was the only article in the bill of goods which the defendant ever received, and it was for this that the verdict was rendered.

The note, the memorandum upon it and the contract referred to are to be construed together as part of one and the same transaction. Davlin v. Hill, 11 Me. 434; Johnson v. Heagan, 23 id. 329; Stocking v. Fairchild, 5 Pick. 181; Barnard v. Cushing, 4 Metc. 230.

The note in suit is not negotiable. In Jones v. Fales, 4 Mass. 245, a note was given in the usual form, on which at the bottom was written "[Foreign Bills]," and these words were held to destroy its negotiability. In Amer. Ex. Bank v. Blanchard, 7 Allen, 333, the words "subject to the policy" were held to incorporate the policy into the contract for the payment of money and to make the latter dependent on the contingency that no claim would arise on the policy against the company before the expiration of the time when the promise would mature. As the promise was conditional and not absolute, the note was held not to be negotiable. In Benedict v. Cowden, 49 N. Y. 396; s. c., 10 Am. Rep. 382, the facts were somewhat similar to those of the case at bar. The defendant gave his note, at the bottom of which were these words: "The above note to be paid from the profits of machines when sold." This memorandum was held to be a substantive part of the note, and that it qualified it the same as if it had been inserted in the

Cushing v. Field.

body of the instrument, and consequently that the note was not negotiable. The assignee takes it subject to all the equities between the original parties.

It is claimed that the words on the note have been altered and that the indorsement across the end of the note was originally thus: "This note is subject of a contract made Nov. 13, 1874." The alteration relied on consists in changing "to," as it is claimed it was originally written, to "of." It is difficult to imagine what motive anybody would have to make such a change. If made it does not alter the relation of the parties. Whichever word is used, the note is subject to the contract. The idea that such an alteration was fraudulently made is simply preposterous. The probability is much greater that it was written "of" and then "of” changed to "to," for the purpose of making the intention, if possible, more clear. But either way nobody could be harmed.

But it is well settled that an immaterial alteration will not avoid a contract. In Aldous v. Cornwell, L. R., 3 Q. B. 573, it was held that the second resolution in Pigot's case (11 Rep. at fol. 27 a), that "if the obligee himself alters the deed,

* although

it is in words not material, yet the deed is void," was not to be regarded as law. "No authority was cited," remarks LUSH, J.,

66

nor are we able to find any, in which the doctrine has been acted upon, and an instrument held to be avoided by an immaterial alteration." In Langdon v. Paul, 20 Vt. 217, where the plaintiff offered a sealed instrument in which he acknowledged he had "signed" certain notes, and the words " and executed were interlined, it was held that the interlineation was immaterial. Whenever, by the alteration of a promissory note, neither the rights nor interests, duties nor obligations of either of the parties are in any manner changed, the alteration is immaterial. Derby v. Thrall, 44 Vt. 413; s. c., 8 Am. Rep. 389; Arnold v. Jones, 2 R. I. 345; Ames v. Colburn, 11 Gray, 390; Cole v. Hills, 44 N. H. 227.

Defendant's exceptions sustained. Plaintiff's motions and exceptions overruled.

WALTON, BARROWS, VIRGIN and LIBBEY, JJ., concurred.

Blake v. Maine Central Railroad Company.

BLAKE V. MAINE CENTRAL RAILROAD COMPANY.

(70 Me. 60.)

Master and servant · negligence — of co-servant.

A master is not liable to his servant for injury resulting from the negligence of a fellow-servant in the same general employment, although the servants are not engaged in the same kind of work, and the negligent servant is superior in grade, and the servant injured was bound to obey his orders, unless the negligent servant was incompetent, and the master knew, or in the exercise of due diligence should have known of his incompetency; and compentency is presumed to continue until notice of change.*

A

CTION by administrator for damages for death of intestate by negligence. The case is disclosed in the last two paragraphs of the opinion.

E. F. Pillsbury & J. H. Potter and E. F. Webb, for plaintiff.

J. H. Drummond & J. O. Winship, for defendant.

APPLETON, C. J. It has been settled by an almost unbroken series of decisions that a master is not liable to a servant for an injury resulting from the negligence of a fellow-servant in the same general employment. The servant undertakes between himself and his master to run all the ordinary risks of the service, including that of the negligence of his fellow-servants. Beaulieu v. Portland Co., 48 Me. 295; Lawler v. Androscoggin R. R. Co., 62 id. 467; s. c., 16 Am. Rep. 492; Warner v. Erie Railway Co., 39 N. Y. 469; Ziegler v. Day, 123 Mass. 152.

When there is one general object, in attaining which a servant is exposed to risk, if he is injured by the negligence of another servant whilst engaged in furthering the same object, he is not entitled to sue the master; and it does not matter that they were not engaged in the same kind of work. Charles v. Taylor, L. R., 3 C. P. Div. 492; Lovill v. Hawk, L. R., 1 C. P. Div. 161; Tunney v. Midland Railway Co., L. R., 1 C. P. Div. 296; Seaver v. Boston & Maine R. R. Co., 14 Gray, 467.

• See Kelly ▼. Silver Spring Co. (12 R. I. 112), 34 Am. Rep. 615; contra, Chicago & N. W. R. Co. v. Moranda (93 Ill. 302), 34 Am. Rep. 168.

VOL. XXXV-38

Blake v. Maine Central Railroad Company.

Nor is the rule that a master is not liable to a servant for the negligence of a fellow-servant in their common employment altered by the fact that the servant guilty of such negligence is a servant of superior authority, whose lawful directions the other is bound to obey. Fultham v. England, L. R., 2 Q. B. 33. "A fellow-servant I take to be any one who serves and is controlled by the same master," observes DALRIMPLE, J., in McAndrew v. Burn, 39 N. J. 115. The master is liable for negligence in the selection of his servants, but he does not warrant their competency. To recover for an injury caused by the incompetency of a fellow-servant, it must be shown that such incompetency was known, or should have been known to the master if he had been in the exercise of ordinary diligence. Lawler v. Androscoggin R. R. Co., 62 Me. 467; s. c., 16 Am. Rep. 492. The master is not liable if he use ordinary care and prudence in the selection of competent workmen and materials. Cotton v. Edwards, 123 Mass. 484; Cummings v. Grand Trunk Ry. Co., 4 Cliff.

The negligence of the master in not selecting competent servants. is the basis of his liability, and it must be distinctly set forth in the declaration. The master is under obligation to use due care and diligence in the selection and employment of his agents and servants, and for want of such care is responsible to all other servants for any damages that may thence arise. Harper v. Ind. & St. Louis R. R. Co., 47 Mo. 567; s. c., 4 Am. Rep. 353; Moss v. Pacific R. R. Co., 49 Mo. 127; s. c., 8 Am. Rep. 126. The responsibility is not merely for the negligence of his servants, but for his While the duty of a master to his servant requires the exercise of great care in the employment of fellow-servants, and the institution of due inquiry to ascertain their character and qualifications, when suitable and competent persons have been employed, the same degree of diligence is not required. Good character and proper qualifications once possessed may be presumed to continue, and the master may rely on that presumption until notice of a change. Chapman v. Erie Company, 55 N. Y. 579.

own.

The declaration in the writ sets forth that the plaintiff's intestate was in the employ of the defendant corporation; that while so in their employ, and in the exercise of due care and diligence, he was severely injured, underwent great suffering, and ultimately lost his life, by reason of the careless and reckless acts of certain servants of the defendants employed in and about their business, and intrusted

Hoar v. Maine Central Railroad Company.

by them "with the care and conduct of one of their locomotive engines then and there propelled by steam," to which a car was attached, etc., "and that said injury, suffering and loss of life were the direct result of the negligence, carelessness and recklessness: of the defendants, and of their gross carelessness and negligence in appointing unsuitable employees to manage the running of said. locomotive engine and car," etc.

The demurrer to the declaration is general. Errors, which might be deemed fatal on a special demurrer, will be disregarded when the demurrer is general. The allegation that the injury, suffering and loss of life of the plaintiff's intestate was the direct result of the negligence, carelessness and recklessness of the defendants, and their carelessness and negligence in appointing unsuitable employees by whom the engine was negligently managed, would seem to be a sufficient averment that the negligence of the defendants in not selecting competent servants was the cause of all the grievances for which remuneration is sought in this suit. As the demurrer admits all the facts set forth in the declaration, we think a good cause of action is disclosed in the first count. It becomes unnecessary therefore to particularly discuss the second count in the plaintiff's writ.

First count in the writ adjudged good. WALTON, BARROWS, VIRGIN and LIBBEY, JJ., concurred.

HOAR V. MAINE CENTRAL RAILROAD COMPANY.

(70 Me. 65.)

Carrier- of passengers — injury on hand-car.

In absence of proof that a railway company is accustomed to carry passengerf upou hand-cars, one who is injured while thus riding has no cause of actior against the company, although invited thus to ride by the section foreman.

A

CTION by administrator for damages for death of intestate by negligence. The opinion states the case.

E. F. Webb, for plaintiff.

J. H. Drummond, for defendants.