of the danger, and told how to test the caps for the purpose of discovering whether they were charged with electricity. It is conceded that the appellant was required to give him such information and instructions with regard to the situation as a person of ordinary prudence would give under the circumstances. The jurors were told that they were to determine from the evidence whether such instructions and information were given the deceased as were calculated to advise him of the situation and enable him to protect himself. They evidently came to the conclusion that proper instructions were not given.

The questions of contributory negligence and assumption of risk were for the jury. If the deceased knew that the cap was charged with electricity, he attempted to paint it at his peril. If he had not such. knowledge, there is nothing in the evidence from which to find that he was guilty of contributory negligence. Danger from electricity is not one of the ordinary risks which a person who undertakes to paint such poles assumes. If the electrical apparatus is properly insulated and kept in repair, the painting of the pole may be done with perfect safety. The danger of the cap being charged is an extraordinary risk, which is not assumed unless it is fully understood and appreciated. The evidence did not require the conclusion as a matter of law that this extraordinary risk was assumed.

It is further contended that the deceased was in the employ of an independent contractor and that the appellant fully discharged its duty when it warned the contractor, Moon, of the dangers to which his men would be subjected. It is not certain that Moon was an independent contractor. The question does not seem to have been considered by the trial court, as no reference is made to it in the charge. Assuming, however, that Moon was an independent contractor, it does not follow that the appellant is relieved from responsibility for its negligence. The dangerous condition was not created by the contractor, or by any of his employes. It was not in any way necessarily connected with the performance of the work of the contractor. The painting which the contractor agreed to do was to be done in places and under conditions which were safe so long as the appellant maintained its wires and appliances in proper condition. The danger originated when this duty was neglected. The duty to use the proper degree of care was owing directly to the deceased, and for damages resulting

from a breach of such duty the appellant is liable. It is not a question of the duty which an independent contractor owed to his employe, but of the duty which the appellant owed to any person who was working in the vicinity of its dangerous appliances.

The judgment is therefore affirmed.

IDA JOHNSON v. JOHN OGREN.1

July 12, 1907.

Nos. 15,283-(207).

Ratification of Agent's Unauthorized Act.

Ratification by a principal of the unauthorized act of his agent must be, as a general rule, with full knowledge of all the facts of the transaction. Knowledge of Agent's Acts.

He cannot be charged with such knowledge by his failure to inquire of others concerning the acts of his agent; for he may assume, until otherwise advised, that his agent will obey his instructions.

Retention of Benefits.

Where, however, the principal receives from his agent the proceeds of the unauthorized act, with a report or account of the transaction, he cannot ignorantly or purposely shut his eyes to means of information within his possession and control, and thereby avail himself of the benefits of the transaction, and then repudiate it. If he so receives and retains the benefits of the transaction, he ratifies it.

Evidence.

Upon the facts set forth in the opinion herein, it is held that the appellant's intestate ratified the unauthorized act of his agent in borrowing money which was used in his principal's business, and that a claim against his estate for the money is not barred by the statute of limitations.

The probate court for Washington county having allowed the claim. of John Ogren against the estate of Alex Johnson, deceased, an appeal was taken to the district court for that county, and was tried before

1 Reported in 112 N. W. 894.

Crosby, J., who made findings and ordered judgment against the estate in the sum of $1,357.44, with interest from April 11, 1900. From the judgment entered pursuant thereto, the administratrix of the estate appealed. Affirmed.

Manwaring & Sullivan, for appellant.

F. V. Comfort, for respondent.

START, C. J.

This is an appeal from the judgment of the district court of the county of Washington, affirming the judgment of the probate court of that county allowing the claim of the respondent for money had and received against the estate of Alex Johnson, deceased. The case was tried in the district court without a jury. Findings of fact were made by the trial judge, and as a conclusion of law judgment was directed in favor of the respondent for the sum of $1,357.44, with interest, and judgment was so entered.

The facts found were to the effect following:

1. Alex Johnson died intestate March 20, 1905, and on May 12 next thereafter his widow, the appellant herein, was duly appointed administratrix of his estate.

2. On February 26, 1896, Alex Johnson was doing a mercantile. business at Stillwater under the name of the "Alex Johnson Store Account," which was conducted for him by his brother-in-law and agent, C. G. Ryden, who was authorized to buy and sell all goods connected therewith; but he had no authority to borrow money for use in the business, or to draw checks upon the bank in which Johnson kept his account in payment of indebtedness contracted in such business.

3. There was an arrangement between Johnson and Ryden that whenever Ryden should pay Johnson the amount of money that Johnson had invested in the business, he would transfer it to Ryden. Ryden never paid such amount, and the transfer was never made to him. Such arrangement was known to respondent, Ogren, at the time of his making the advancement hereinafter stated. On the 26th day of February, 1896, the respondent, Ogren, had some talk with Ryden about forming a copartnership with him in such business. He was then owing the Alex Johnson Store Account for goods purchased of it the sum of $36.44. Ryden at this time needed money for present use in

the business, but did not wish to apply to Johnson to furnish it, which fact Ogren then knew.

4. Ogren agreed to and did advance to Ryden the sum of $2,000 for the purpose of meeting bills, for which he gave to Ogren a receipt, of which the following is a copy:

Stillwater, Minn., Feb. 26th, 1896. Received of John Ogren $2,000.00, to be drawed out, if he so desires, when he calls for them, or to apply to a share in the clothing store, now known as the Alex Johnson Store Account. [Signed] C. G. Ryden.

Some time after the receipt was executed there were inserted therein by agreement of the parties the words, "or interest at the rate of 5 per cent. per annum." Ogren demanded from Ryden the payment of the $2,000 within one year after it was received by him.

5. Upon receiving this receipt Ogren gave to Ryden his check, payable to the order of the Alex Johnson Store Account, for $1,963.56, which Ryden deposited in the Lumberman's National Bank, in the city of Stillwater, to the credit of the Alex Johnson Store Account, which thereafter, without the knowledge of Johnson, was used in his business and drawn from the bank upon checks signed by him and used in the payment of bills in connection with the business of the Alex Johnson Store Account, and Ogren was given credit upon the books of the Alex Johnson Store Account for his indebtedness of $36.44.

6. After the receipt was so made and delivered to Ogren, there was paid and indorsed thereon from time to time payments of interest and principal, which were made in part by goods purchased by Ogren from such store on credit. The last payment made and indorsed on the receipt was made on August 29, 1899, being "$175 interest, and cash $200." Part of such payment so indorsed was for goods theretofore purchased by Ogren, and part in cash from the sale of goods from the store. All of such payments were made and indorsed without the knowledge or consent of Johnson.

7. Johnson after August 29, 1899, and before April 11, 1900, sold and delivered to Ogren goods from the store managed by Ryden of the reasonable value of $442.56, which have not been indorsed upon

the receipt or applied in payment of the $2,000; but the amount thereof should be applied in part payment thereof. All of the transactions herein stated were duly entered upon the books of the Alex Johnson Store Account, and were at all times subject to the inspection of Alex Johnson. He never authorized such transactions by Ogren and Ryden, and never had any knowledge thereof, and never consented thereto; but, if he had exercised such care and oversight of his business as a person of ordinary prudence should or would have exercised, he would have had full and complete knowledge of every and all of such transactions. While not so stated in the trial court's conclusion of law, yet a computation shows that the payments of the interest and principal of the $2,000 were allowed, and also the counterclaim for $442.56 was allowed. and applied as a payment thereon or offset thereto; for the conclusion of law was a direction that judgment be entered in favor of the respondent, with interest from April 11, 1900, the date of the sale of goods of the value of $442.56 from the store managed by Ryden to respondent, Ogren.

The only question for our decision is whether this conclusion of law is justified by the facts found. The contention of the appellant is to the effect that it is not, for the reasons that the findings of fact do not show that Johnson was ever legally liable to Ogren for the $2,000 here in question, and, further, if it were otherwise, the facts show that the claim was barred by the statute of limitations at the time of Johnson's death. A determination of the merits of this contention involves a construction and analysis of the findings of fact.

The appellant, in support of the first contention, urges in effect that there was a contract between Johnson and Ryden, of which Ogren had knowledge, by the terms of which Johnson was bound to transfer the business to Ryden upon being paid the amount he had invested therein; that the right thus acquired by Ryden was assignable, and that there was an express contract between him and Ogren, based upon Ryden's contract with Johnson, whereby all rights that Ogren acquired should depend upon Ryden's interest as represented by his contract with Johnson; and, further, that the transaction whereby Ogren advanced $2,000 for the purpose of meeting the bills of the store was solely an express contract between Ryden, acting for himself, and Ogren.

Counsel for appellant seeks to apply to the facts as claimed by him.