who had possession of it, but who had no right to lend or use it, and after using it a few days defendant returned it to the possessor, all the time supposing it belonged to him. It was held that defendant was not guilty of conversion. The court approved of the following definition: "To constitute a conversion of goods, there must be some repudiation of the owner's right, or some exercise of dominion over them inconsistent with such right, or some act done which has the effect of destroying or changing the quality of the chattel."

If appellant's sons had reason to believe that Mr. Crosier was the owner of the spreader, or had possession and control over it, and the right to loan it, they were not guilty of conversion in accepting his suggestion. If the boys acted in good faith, the taking in the first instance was not wrongful; and if they used it in good faith, believing they were authorized to do so, then the use did not, of itself, indicate a purpose to convert the property to their own use and constitute conversion. Conceding that appellant and his sons might, by their conduct, have assumed such control and dominion over the machine. as to indicate a disregard of the owner's rights, thus constituting conversion, the evidence in that respect was conflicting, and the court was in error in assuming that the facts made out a case of conversion as a matter of law.

Order reversed.

FRANK L. MULLEN v. ANDY JONES.1

July 19, 1907.

Nos. 15,242-(57).

Bills and Notes-Indorsement.

A writing on the back of a promissory note by its payee, which guarantees the payment of the note at maturity and waives notice of nonpayment and demand, is an indorsement in a commercial sense, and makes the person to whom it was transferred an indorsee under the law merchant. Elgin City Banking Co. v. Zelch, 57 Minn. 487, followed.

1 Reported in 112 N. W. 1048.

Action in the district court for Watonwan county to recover upon a promissory note. The case was tried before Lorin Cray, J., and a jury which rendered a verdict for $132.18 in favor of plaintiff. From an order denying a motion for a new trial, defendant appealed. Affirmed. Edward C. Farmer, for appellant.

J. E. Haycraft, for respondent.

JAGGARD, J.

Plaintiff and respondent, as administrator of the estate of one Mullen, deceased, brought this suit on a promissory note alleged to have been executed by one Cain to the defendant Jones, and by the defendant indorsed to the deceased prior to its maturity. The indorsement on the back of the note was as follows:

Pay C. G. Mullen, or order. I guaranty the payment of within note at maturity, and hereby waive notice of nonpayment and demand. Andy Jones.

The answer was a general denial of the guaranty of the note, its transfer, and of the signature of the defendant on the back of the note. Plaintiff at the trial offered the note in evidence. It was received, notwithstanding defendant's objections. The court in effect submitted to the jury the question of the genuineness of Jones' signature. The jury found for the plaintiff. This appeal was taken from the order refusing a new trial.

The principal contention of the defendant is that the writing on the back of the note was intended to be a guaranty, and not an indorsement, and that it was void because it failed to express a consideration, as required by the statute of frauds. Elgin City Banking Co. v. Zelch, 57 Minn. 487, 59 N. W. 544, decides this point adversely to defendant. In holding that the present indorsement was an indorsement in the commercial sense, and that the transferee was an indorsee under the law merchant, this court is in accord with the best current opinion. State v. Haylen, 14 Neb. 480, 16 N. W. 754; Dunham v. Peterson, 5 N. D. 414, 67 N. W. 293, 36 L. R. A. 232, and note, 57 Am. St. 556; German v. Hanna, 124 Iowa, 374, 100 N. W. 57; 7 Cyc. 795. But see 4 Am. & Eng. Enc. (2d Ed.) 479 (5).

The second contention of the defendant is that there was no proof

of the genuineness of defendant's signature on the back of the note. In point of fact, testimony on this point was received by the court on behalf of both parties. The jury found for the plaintiff. In view of the conclusion that the defendant's contract was as an indorser, and of that testimony, apart from the statutory rules (section 4730, R. L. 1905), the trial court was fully justified in refusing to grant a new trial.

Affirmed.

W. C. LEE v. WILD RICE LUMBER COMPANY.1

July 19, 1907.

Nos. 15,245-(192).

Master and Servant-Negligence.

The evidence sustains the jury in finding that appellant was negligent in directing respondent to assist in adjusting a belt tightener in its planing mill without providing proper handholds or ladders, and in finding that respondent was not guilty of contributory negligence and did not assume the risks of using a certain brace in ascending and descending the wall of the building for the purpose of adjusting the tightener. No errors in the charge of the court.

Action in the district court for Norman county to recover $5,000 for personal injuries. The case was tried before Grindeland, J., and a jury which rendered a verdict for $3,000 in favor of plaintiff. From an order denying a motion for judgment notwithstanding the verdict or for a new trial, defendant appealed. Affirmed.

Price Wickersham and Armand Albrecht, for appellant.

W. E. Rowe and Peter Matson, for respondent.

LEWIS, J.

Appellant company was operating a planing mill, consisting of a one-story wooden structure eighty feet long and twenty two feet wide. The machines were located on the main floor, and about eight

1 Reported in 112 N. W. 887.

or nine feet above, on a number of cross-pieces or joists, referred to in the evidence as the second story, were the shafts and pulleys operating the same. Between two of the joists, at a point about five feet south of the north wall, was an appliance known as the "blower," made of galvanized iron and about the size of an ordinary hard coal burner, in which a fan revolved to generate the air suction to carry away the shavings and sawdust. It was operated by a belt upon a pulley at the east of the blower, and the belt was kept taut by means of a contrivance known as a "belt tightener," constructed of two 6x8 beams, twelve feet high and eighteen inches apart, fastened together by cross-pieces; the lower end being attached to two joists by means of a bolt. Attached to the top of the belt tightener was a cable, which ran through a pulley fastened to the north wall, to the lower end of which was attached a two-foot square box filled with rock and scrap iron, which acted as a weight to pull the top of the tightener to the north, thus keeping the belt taut. Between a diagonal beam in the north wall and the blower was a 2x4 scantling brace, five feet long, placed there for the purpose of lessening the vibration in the blower. Between the tightener and the north wall there was a space of about three feet, and across the joists between which the tightener was fastened a 2x10 plank, five feet long, was placed. Leading from the first floor to the joists above, in the northeast corner of the building, was a stairway. In order to repair the broken lacings in the belt, the machinery was stopped, and the men directed to do the work would ascend the steps, remove some of the scrap iron in the box, and by means of the joists, loose plank, rafters, and studding climb up the north wall and take position behind the upper end of the tightener and shove it forward into an upright position, and, when the belt was repaired, release the tightener and climb down in the manner most convenient.

September 14, 1905, Knute G. Lee was engaged in running a surface planing machine on the main floor. He was directed by the foreman to go with another employee and push the tightener into an upright position for the purpose of loosening the belt, that it might be relaced. The men went up the stairway, and by means of the joists, plank, rafters, and studding climbed up the wall and shoved the tightener forward, holding it until the belt was repaired, when

they released the same and began their descent. The fellow employee, Balke, testified that as he was in the act of stepping down to the plank he noticed Lee falling at a point about where the 2x4 brace was located, and that he fell through the opening between the plank and the tightener to the floor below, and that Lee and the brace went down together. The brace was found at Lee's side on the floor, and he died from the effects of the injuries.

The personal representatives of the deceased base their claim for damages upon the ground that appellant was negligent in directing Lee to assist in the work of shoving forward the tightener without providing a reasonably safe place for him to do his work. The complaint charged that on September 14, 1905, the belt needed relacing, and Lee was directed by appellant to leave the machine which he was operating and ascend to the girders above and help shove forward the belt tightener, in order that the belt might be repaired; that he was ignorant of the manner and method of doing the work, but that he was directed by appellant to climb up on the timbers and studding of the north wall, and acted in the manner so pointed out to him; that after adjusting the tightener, and when about to descend, he stepped upon the 2x4 scantling brace, not knowing it was insecurely fastened at the end which rested against the blower pipe, and the brace, not being securely fastened, slid out of position under his weight, and on account thereof he was thrown to the floor below. Appellant contended in the court below, and also on this appeal, that the evidence was insufficient to sustain the allegations of negligence, because there was an entire absence of proof that it was feasible to maintain a ladder, or other special means, for descent at the point in question, and that the evidence completely failed to show that the absence of guards or platforms was the cause of decedent's fall; that the evidence does not show that the brace was provided by appellant as a foothold for the use of its servants; and that the evidence is not sufficient to show that Lee stepped on the brace, or used it as a means of getting down.

The following facts were shown with reasonable certainty: The mill had been in operation for a number of months, that it was necessary to repair the belt which ran from the main shaft to the blower about every two months; that in order to make such repairs the mill