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would not have again got out of order on Tuesday. We cannot agree with the contention that the plaintiff neglected a duty in not ascertaining whether the repairs had in fact been made, either by an examination of the machine, or by inquiries from those who would know, when he was required, on the afternoon of Tuesday, to assume the work of a filler. He was suddenly called to this part of the work, and was temporarily discharging the duties of a filler, in the absence of the employe who regularly did this work; and plaintiff's own regular employment—that of linker-involved him in no danger, although the machine was defective, and worked improperly. The plaintiff had a right to expect a sound and properly working machine, and it was defendants' duty to see that the machine was kept in a sound and proper condition. Plaintiff had a right to presume that the defendants, knowing of the defective condition of the machine, would adopt those precautions required of them, for it is well settled that reasonable care on the part of the servant in the performance of his work presupposes the performance by the master of his duty to do all that reasonably lies within his power to protect the servant while so engaged. McGovern v. Railroad Co., 123 N. Y. 288, 25 N. E. Rep. 373. We are of opinion, therefore, that the question of plaintiff's contributory negligence should have been left to the jury. It cannot be claimed that the accident was the result of one of those dangers incident to the business, which plaintiff assumed, for those dangers which are known, and can be mitigated or avoided by the exercise of reasonable care and precaution on the part of the master, are not incident to the business, and it is the duty of the master to protect his servants therefrom in all cases in which it may be done by reasonable care; and when the master directs the performance of his work by his servant, at a place which may become dangerous, and such danger may be foreseen and guarded against by the exercise of reasonable care, it is the master's duty to exercise such precautions as will protect the servant from avoidable danger. This is the master's duty; and however he may choose to exercise it, whether through the supervision of a superintendent, or some one of a lower grade of employment, it still continues the master's duty, and not until he shows that it has been properly performed can he claim exemption from liability for injuries occasioned by its nonperformance. McGovern v. Railroad Co., 123 N. Y. 287, 288, 25 N. E. Rep. 373.
It cannot be maintained that the complaint was properly dismissed for the reason that the accident was caused by the negli. gence of a fellow servant, i. e. the foreman or engineer, and that, therefore, the defendants are not liable. The inference to be drawn from the testimony is that the foreman was the representative of defendants, and orders given by him were equivalent to orders issued by defendants themselves, and that defendants were chargeable with knowledge of the defective condition of the machinery, inas. much as their foreman was not only aware of it, but issued orders to have it remedied. McGarry v. Railroad Co., (Super. N. Y.) 18 N. Y. Supp. 195; McGovern v. Railroad Co., 123 N. Y 289, 25 N E.
Rep. 373. In fact, the plaintiff swears that "everybody knew it," i. e. the defective state of the machine. A master owes the duty to his servant of furnishing adequate and suitable tools and implements for his use, a safe and proper place in which to prosecute his work, and, when they are needed, the employment of skillful and competent workmen to direct his labor, and assist in the per formance of his work. None of these duties can be delegated by the master to a servant of any grade, so as to exonerate the master from responsibility to another servant, who has been injured by its nonperformance. His neglect to adopt all reasonable means and precautions to provide for the safety of the employes constitutes an omission of duty on the part of the master, rendering him liable for an injury to an employe resulting therefrom. Pantzar v. Mining Co., 99 N. Y, 368, 2 N. E. Rep. 24. It is not until the master shows that he has properly performed this duty that he can claim exemption from liability for injuries charged to have been occasioned by its nonperformance. However the master may choose to exercise this duty,--whether through the supervision of a superintendent or foreman, or some one of lower grade of employment,it still continues the master's duty. McGovern v. Railroad Co., supra. The defendants cannot shift the responsibility onto the shoulders of their foreman or engineer.
We are of opinion that the learned court below erred in dismissing the complaint, and that the question of plaintiff's contributory negligence should have been submitted to the jury. The judgment appealed from is reversed, and a new trial granted, with costs to appellant to abide the event.
(2 Misc. Rep. 541.)
(Superior Court of New York City, Trial Term. February, 1893.)
1. ASSIGNABLE CONTRACTS -PERSONAL PRIVILEGE.
Plaintiff offered a large quantity of fruit for sale at auction, and agreed to allow defendants a rebate on purchases made by them of not less than a certain quantity. Held, that defendants were not entitled to such allowance where they procured others to buy the fruit for them, as the contract
gave merely a personal privilege, and was not assigoable. 2. SAME-CONFIDENTIAL RELATIONS.
Where plaintiff agreed to allow defendants such rebate because they were the largest fruit buyers in the country, and large purchases by them would stimulate others to buy, the agreement created a personal trust,
which could be discharged only by defendants' personal acts. 8. CONTRACT-ACCEPTANCE OF OFFER.
Plaintiff's agreement was a proposition which defendants should have met, either by a binding acceptance on their part or by open evidence of acceptance at the sale, as by buying the specified amount of fruit in their own names.
Action by George F. Nixon against Aquilino Zuricalday and others. There was a verdict for plaintiff, and defendants move for a new trial on the judge's minutes. Motion denied. 1 Affirmed on appeal. See 24 N. Y. Supp. 1150.
Olcott, Mestre & Gonzalez, for the motion.
MCADAM, J. The plaintiff received a large shipment of foreign fruit, (including dates, and offered it for sale through Brown & Secomb, auctioneers. He agreed to make an allowance of oneeighth cent per pound on purchases made by defendants of not less than 4,000 boxes, and one-fourth cent per pound on purchases made by them of not less than 8,000 boxes. The defendants attended the sale, and bought in 3,942 boxes of dates at $8,476.11, and one Elias bought in 4,368 boxes of dates at $9,273.33. It turned out, after the sale was over, that Elias had made his purchases for the defendants, and hence the defendants are sued for the entire amount of the purchase, $17,749.44, with interest. Elias did not disclose the defendants' names as purchasers at the sale, but gave his own name as each lot was struck off to him. The defendants now claim to deduct from the purchase price $1,214.28, being one-fourth cent per pound on the aggregate weight, and base their right to do so upon the ground that prior to the sale they had interested Elias in their contract with the plaintiff; hence what he did, they did. The plaintiff claims that his understanding with the defendants was personal to them, and made because they were the largest date purchasers in the United States, and the plaintiff wanted to induce them to purchase an unusually large quantity, to stimulate other bidders who would be apt to follow the lead of such a well-known firm. The plaintiff claims that the defendants, knowing this, refrained from doing as they agreed, and induced Elias to purchase the bulk of the dates in his own name, that other bidders might not be influenced to bid against him, as they might have been against them; and that in this way the plaintiffs lost the consideration which induced them to agree to make an allowance, and the defendants obtained a large quantity of fine dates at an unusually low figure, and now seek a further gain by the one-fourth of a cent a pound allowance.
According to the defendants' interpretation of the contract, they had the right to bring Elias into it, or at their pleasure might have brought a syndicate of buyers into it, all unknown to the plaintiff, and in that way almost have run the sale to suit themselves, getting one-fourth of a cent allowance on every pound sold, at whatever price the dates were struck off. The question is whether the contract will bear that construction. It was not assignable, one test of which is the right of survivorship, (5 Lawson, Rights, Rem. & Pr. § 2650,) which would not have applied, for the privilege was one terminable at the death of the defendants. It was a proposition which should have been met either by some binding acceptance on their part prior to the sale, or by some open evidence of acceptance at the sale, such as buying in their own names to the extent of 4,000 or 8,000 cases. The defendants did neither.
The relation in which the parties stood, and the nature of the duties to be performed, with their probable effect upon others, would indicate that there were reasons why the plaintiff selected the defendants as
the recipients of the allowance, which would not apply to others not similarly known in that particular line of fruit. If this be so, then the contract was founded on a confidence reposed in the defendants, and created a personal trust, which could be discharged only by the personal acts of the defendants, or by the authorized and announced use of their names at the auction sale. In Smalley v. Greene, (Iowa) 3 N. W. Rep. 78, the question came up as to the right of a lawyer, employed to collect accounts, to sell his business and the power to make the collections. The court said:
"It is presumed that the defendant's clients selected him for the collection of their notes because they reposed confidence in his capacity and integrity, or for some reason desired him in preference to all persons else to perform this service. The defendant had no right to substitute another for the performance of duty which he had agreed to discharge himself, and he could not, without the consent of his clients, bind them to accept another to perform the service in his place.”
In Robson v. Drummond, 2 Barn. & Adol. 303, it appeared that one Sharpe, a coachman, contracted to furnish the defendant a carriage for the term of five years, at a given price per year, payable in advance. At the end of three years Sharpe assigned his contract to his secret partner, Robson, the partnership being unknown to the defendant. Held, that the contract was personal, and not assignable. The same principle was enforced in Lansden v. McCarthy, 45 Mo. 106, the case of a butcher and hotel keeper, and applies to all cases of personal services or duties. Spalding v. Rosa, 71 N. Y. 40. It is therefore rule in equity that, where the agreement is personal, depending upon the learning, skill, or other characteristic of the contracting party, he alone can enforce performance. Wat. Spec. Perf. § 72. The proposition of the plaintiff was not like a proposal in case of "rewards” offered to unascertained persons, for it was addressed to certain well-known and specifically designated parties, in whom, for obvious reasons, a confidence was reposed, and gratuity offered for the service. If such a confidence does not require that the maxim "uberrima fides" be adhered to, it at least inhibits the concealment of facts which the party bestowing the confidence was entitled to know, and prevents the slightest unconscientious advantage by the other party, particularly such as may result from the nonobservance of strict business methods. The leading rule of exposition is that a contract shall be interpreted to give effect to the intention of the parties, (Story, Cont. § 634; 2 Pars. Cont. 494; Bish. Cont. & 575; Parshall v. Eggert, 54 N. Y. 18;) and it does seem rational and manifestly just that a party should know with whom he is contracting before or at the time of the sale, and that no stranger can be thrust upon him afterwards, to his possible disadvantage; and this is evidently just what was contemplated and intended here. Contracts which contemplate the acts of "particular” persons are in their nature personal, and not so elastic as to enable those whose duty it is to perform them to substitute at their pleasure others to perform the trust. The contract conferred no vested right upon the defendants. It gave them a personal privilege, nothing more; one which might have been withdrawn at any
time prior to the sale. It was therefore in the nature of a "jus precarium," and unassignable. As the defendants could not have transferred the entire contract, they could transfer no part of it, nor could they bring in a stranger to share its benefits. The defendants, in order to obtain the deduction, must establish a valid contract by the plaintiff to allow them on all purchases made by them, whether in their name or in that of Elias, one-fourth of a cent a pound, or they fail in their demand for such allowance. In order to prove such a contract they must show that the parties agreed to the same thing in the same sense, for, unless the minds of the parties met as to all these essentials, there was no solid foundation on which the deduction can be sustained. A proposition becomes a contract only when met by an acceptance which corresponds with it adequately and entirely. This, like the former proposition, is elementary law. For these reasons the plaintiff was of right entitled to a verdict for $17,945.64, the aggregate amount of the purchases, with interest. The verdict was properly directed, and the motion for a new trial must be denied.
(4 Misc. Rep. 415.)
(Superior Court of New York City, General Term. July 3, 1893.) 1. CORPORATION8–CONTRACTS-AUTHORITY OF PURCHASING AGENT.
The by-laws of defendant railroad company named the purchasing agent among the officers authorized to conduct the company's business. They also provided (subdivision 16) that the comptroller "shall be furnished with copies of all written contracts for * * (4) supplies, made by any officer or agent of the company with individuals,” and authorized the purchasing agent (subdivision 17) to "buy all materials and supplies in general use in every department of the service." Held, that the purchasing agent was authorized to make yearly contracts for supplying defendant with
stationery. 2. SAME-APPARENT AUTHORITY-ESTOPPEL TO DENY.
Where the purchasing agent of a railroad has apparent authority to make contracts for supplying the company with stationery, and a third person has dealt with him a number of years on the faith of his having such authority, the company cannot afterwards abrogate a contract made by the purchasing agent with such third person on the ground that the
agent did not possess such authority in fact. 8. CONTRACTS-ACCEPTANCE OF PROPOSITION.
Bids submitted by a manufacturer for supplying a corporation with stationery for the ensuing year, and written notification of acceptance by a duly authorized agent of the corporation, constitute a contract, which requires the manufacturer to deliver stationery when called on during the period, and which requires the company to order all the stationery required by it during such period. Appeal from jury term.
Action by Augustus Levey, as assignee of Clarence Levey, against the New York Central & Hudson River Railroad Company, for breach of contract. From a judgment entered on a verdict in favor of plaintiff, defendant appeals. Affirmed.
Argued before FREEDMAN and GILDERSLEEVE, JJ.