at the September term, 1891, it was changed to a suit against her as executrix de son tort. At the December term, 1891, defendant, by plea puis darrein continuance, set up the defense that in November, 1891, she had been legally appointed administratrix of said Hamilton. The plea was informal, and on special demurrer was adjudged bad at the March term, 1892. Defendant had leave to plead over on payment of costs since demurrer was filed, and accordingly, at the same term, pleaded the general issue, and, by brief statement, alleged the same matter in bar of the further prosecution of the suit. Thereupon, plaintiff discontinued the suit, and claimed and was allowed costs up to the time of the discontinuance. The defendant claimed that she was entitled to costs as the prevailing party. The question is, which party is entitled to costs?

In suits at law, costs are regulated entirely by statute. Rev. St. c. 82, § 117, provides that "in all actions the prevailing party recovers costs, unless otherwise specially provided." We find no statute which provides otherwise in a case like this. The defendant denied any cause of action against the estate of Hamilton, and nothing appears to show that any existed, other than bringing the suit. Without any trial or decision upon the merits of the case, plaintiff voluntarily discontinued the suit, and judgment went against him by his desire. In such case the defendant must be regarded as the prevailing party, under the statute, and as such entitled to recover costs, and not liable to pay them. Bates v. Ward, 49 Me. 87; Foster v. Buffum, 20 Me. 124.

The case of Leavitt v. School Dist., 78 Me. 574, 7 Atl. 600, is not inconsistent with this view. In that case, which was a real action, it was agreed that at the time of the commencement of the suit the plaintiff had title to the lot demanded, but pending the action the defendant acquired title to the lot, for a schoolhouse, by proceedings under the statute, and pleaded such title puis darrein continuance; and the court held such acquired title of defendant to bar the further prosecution of the action, and that plaintiff should recover costs to the time of filing the plea, and the defendant costs subsequently accruing.

Exceptions sustained. Costs for defendant.

VARNEY v. BRADFORD. (Supreme Judicial Court of Maine. Aug. 10, 1894.)

IMPLIED ASSUMPSIT-CONTRACT-CONSTRUCTIONINTERPRETATION BY PARTIES.

1. In a contract under seal, containing mutual covenants, and which imposes an obligation upon one party to pay money to the other, but contains no covenant or promise to pay it, the contract having been wholly performed in all other respects, the money may be recovered in an action of assumpsit, upon an implied promise.

2. The defendant leased a farm May 10, 1890, to the plaintiff, for one year, with certain privileges as to exchanging stock, etc.; and the plaintiff, the lessee, covenanted, in consideration of the lease and the sum of $100, payable in amounts of $8% monthly, to board and care for the defendant's mother during said term, with other covenants to be performed by him. The plaintiff, the lessee, took possession of the farm, and performed all his agreements and covenants, including the support of defendant's mother, until her death, June 30, 1890. The defendant paid the plaintiff the monthly installments for five months, the last payment being October 10, 1890. In an action to recover the remaining seven installments, held, that the death of the defendant's mother before the expiration of the year for which the lease was given did not terminate the plaintiff's right to future installments.

3. Also, that the court will not adopt an opposite construction, even if the language of the contract might permit but does not require it, when, as here, the party writing the contract himself has better knowledge of the actual agreement than counsel can have, and has acted upon one construction consistent with the language of the contract, and makes repeated payments in accordance with that construction. (Official.)

Exceptions from supreme judicial court, Oxford county.

Action of assumpsit by Newell M. Varney against Royal B. Bradford to recover a balance alleged to be due on a contract. There was a judgment for plaintiff, and defendant excepts. Exceptions overruled.

Geo. C. Wing, for plaintiff. N. & J. A. Morrill, for defendant.

STROUT, J. The contract which is the foundation for this suit was executed by plaintiff and defendant under seal, and bore date April 19, 1890. By it, defendant leased a farm, with stock and tools thereon, to the plaintiff, for one year from May 10, 1890, with certain privileges as to exchanging stock, etc., not material to this cause, and the lessee covenanted "in consideration of this lease and the sum of one hundred dollars, payable in amounts of eight and onethird dollars monthly," to board and care for defendant's mother, Mary B. Bradford, during said term, with other covenants by the lessee to be performed. The plaintiff, the lessee, took possession of the farm, and it is agreed that he has performed all the covenants and agreements by him to be performed, including the support of Mary B. Bradford, until her death, on June 30, 1890. Defendant has paid plaintiff the monthly payment of $8% for five months, the last payment being on October 10, 1890. The suit is to recover the remaining seven installments. Defendant claims that under the contract the monthly payment to plaintiff of $8% was payable towards the support of Mary, and that upon her death no further payment was due the plaintiff.

The presiding justice, to whom the case was submitted without a jury, decided that plaintiff was entitled, under the contract, to receive $100 in monthly installments, and

that the death of Mary B. Bradford before the expiration of the year for which the lease was given did not terminate plaintin's right to future installments. We think such is the true construction of the contract.

It is agreed that the contract was drawn by defendant. It stipulated that in case of the death of Mary B. Bradford the lease should not terminate, but nothing was said. as to the $100, which was a part consideration for plaintiff's covenants, which, among other things, required him to "endeavor to improve the farm, and keep it and the buildings and fences thereon in a neat and tidy condition." The acts of the defendant show that he understood the contract to require him to pay the installments to the end of the term, notwithstanding the death of Mary before its expiration. She died on June 30th. Defendant paid the monthly installments for July, August, September, and October following without objection. August 10, 1890, defendant wrote the plaintiff, asking various services and good offices from plaintiff, and concluded his letter with the statement that: "The uncertainties of life is the cause of your now having the entire use of the farm, stock, etc., free, with taxes and insurance paid, also $8% per month. While I make no claim beyond the requirements of the lease, I think you can afford to do well by me." After this letter defendant continued his payments for two months longer. These facts show conclusively that, for four months after the death of Mary, defendant understood that the payment of the $100 was to be absolute, and was not affected by the death of Mary. After the October payment, defendant consulted counsel, and thereafterward declined to make any further monthly payments. While the advice of counsel in construing a contract to determine the legal rights of the parties is valuable, it is based entirely upon the language of the contract. A party to it, and one who in fact wrote it, as in this case, has a better knowledge of the actual agreement intended to be expressed than the counsel can have; and when, as here, such party acts upon one construction, consistent with the language of the contract, and with full knowledge of the facts, and makes repeated payments in accordance with that construction, the court will not adopt an opposite construction, even if the language of the contract might permit but does not require it.

But it is strenuously argued that this action of assumpsit cannot be maintained, even if plaintiff is entitled to recover the unpaid installments. It is familiar law that suits upon covenants in sealed instruments must be either debt or covenant. Yet, without a violation of this rule, a sealed instrument may be used as evidence in an action of assumpsit, and may form the very foundation out of which the action arises, where in the sealed instrument there is no stipulation for payment or performance to the party to be

use.

benefited, or to some other person for his It will be noticed that in this contract, while each party entered into various covenants with the other, there was no covenant or express promise to pay the $100. It is mentioned as a consideration for plaintiff's covenants, and, by a fair construction of the contract, was to be paid by defendant to plaintiff. A promise to pay it is therefore implied by law, and assumpsit will lie upon that promise. Hinckley v. Fowler, 15 Me. 285.

1. One who has an interest in the work to be performed, either as consignee or servant of a consignee, or in any other capacity, and for his own convenience, or to facilitate or expedite his own work, assists the servants of another, at their request or with their consent, is not thereby deprived of his right to be protected against the carelessness of the other's servants.

2. The court distinguishes between such a case and that of one who has no interest in the work to be performed, a mere bystander, who voluntarily assists the servants of another, either with or without the latter's request, doing so at his own risk.

3. In the latter case, the master is not responsible; in the former, he will be.

4. The court apply this principle of liability of the master for injuries thus sustained by the plaintiff, where it appeared that the defendant corporation, while engaged in transporting earth by a gravel train for its own use, undertook to deliver earth from cars in the same train for the use of a third party; the crew in charge of the gravel train having requested the men employed by such third party to assist in dumping the earth out of the cars, and, while so engaged, one of the latter's crew being injured by a defective car that was improperly loaded. Peters, C. J., and Libbey and Haskell, JJ., dissenting.

5. Held, that the crew in charge of the gravel train had authority to make such request and give such consent as would authorize the servants of the consignee to remove, or assist in the removal of, earth from the cars. Peters, C. J., and Libbey ard Haskell, J.J., dissenting.

6. The following instructions to the jury were sustained: One who voluntarily assists the servants of another cannot recover from the master for an injury caused by the negligence or misconduct of such servants; that one cannot by his officious conduct impose upon the master a greater duty than that which he owes to his own hired servants; that care must be taken, however, to distinguish a mere volunteer from one who assists the servants of another, at their request, for the purpose of expediting his own business or that of his master, for in such a case he will not stand in the relation of a fellow servant to them, and, if injured by their negligence, their master will be responsible: that if the plaintiff (Thomas Welch) consented to assist in dumping the cars, at the request of the railroad crew in charge of the train, to expedite or facilitate the work which he was engaged in performing, he could not be regarded as such an intermeddler or volunteer as to preclude him from a recovery on that ground, provided the alleged negligence and injury were

made out in other respects; nor could he be regarded as a fellow servant with the employés of the railroad, so as to preclude him from a recovery on that ground. Peters, C. J., and Libbey and Haskell, J.J., dissenting.

7. Upon a motion to set aside a verdict for excessive damages, held, that if, under our statute, no more than $5,000 is recoverable for the negligent killing of a skilled workman, capable of earning a large income, when his death is immediate, a verdict of $8,000 for the death of an unskilled workman, capable of earning only a small income, must be regarded as clearly excessive, though, as in this case, he survived his injuries some six or seven months.

(Official.)

Exceptions from supreme judicial court, Cumberland county.

Action on the case by Thomas Welch against the Maine Central Railroad Company to recover damages for personal injuries caused by defendant's negligence. There was a verdict for plaintiff, and defendant excepts, and moves for a new trial. Exceptions and motion overruled.

Harry R. Virgin and A. A. Strout, for plaintiff. W. L. Putnam and Drummond & Drummond, for defendant.

WALTON, J. It appears that the Maine Central Railroad Company, while engaged in transporting earth for its own use, undertook to deliver some earth for the use of Mr. H. N. Jose; and the evidence tends to show that the crew in charge of the gravel train requested the men employed by Mr. Jose to assist in dumping the earth out of the cars, and that, while so engaged, a broken car, unevenly loaded, tipped over, and fell upon one of Mr. Jose's men (Thomas Welch), and inflicted injuries of which he afterwards died. For these injuries, the administrator of Welch has recovered a verdict against the railroad company for $8,000 damages. The case is before the law court on exceptions and motion for a new trial. We will first examine the exceptions.

1. It is insisted in defense that it was the duty of the servants of the railroad company to dump Jose's earth out of the cars; and that they had no authority to employ Jose's men to assist them; and that Jose's men were trespassers in attempting to do so; and that, being trespassers, the railroad company owed them no duty, and was under no obligation to protect them against the carelessness of its servants.

It is undoubtedly true that, if one who has no interest in the work to be performed, a mere bystander, voluntarily assists the servants of another, either with or without the latter's request, he must do so at his own risk; and the jury were so instructed in this case. But it is equally well settled that one who has an interest in the work to be performed, and for his own convenience, or to facilitate or expedite his own work, assists the servants of another, at their request or with their consent, is not thereby deprived of his right to be protected against the care

lessness of the other's servants. In the former class of cases, the master will not be responsible; in the latter, he will be. This distinction is sustained by every text-book to which our attention has been called, and is well sustained by adjudged cases.

Thus, in Degg v. Railway Co., 1 Hurl. & N. 773, where a mere bystander, without any request from the servants of the railway company, volunteered to assist them in working a turntable, and was carelessly injured by the servants of the company, the court held that he had no remedy against the company; and this case is approvingly cited in Osborne v. Railroad Co., 68 Me. 49.

But in Wright v. Railway Co., L. R. 10 Q. B. 298, where the consignee of a heifer assisted in moving the car in which she had been brought, in order to hasten her delivery, and was carelessly run against and hurt, the court held that he had a remedy against the company; that the rule established in the Degg Case did not apply. To the same effect is Holmes v. Railway Co., L. R. 4 Exch. 254, L. R. 6 Exch. 123.

So, in this country, in Railway Co. v. Bolton, 43 Ohio St. 224, 1 N. E. 333, where a passenger on a street-railway car assisted in backing the car onto the track at a turnout, and was carelessly run against and hurt, the court held that the railway company was responsible, because the assistance rendered tended to expedite the passenger's journey, and prevented his being regarded as a mere volunteer.

So, in Eason v. Railway Co., 65 Tex. 577, where, to facilitate the loading of lumber, it became necessary to move a car, and the shipper's servant, at the request of the conductor of the freight train, undertook to make the coupling, and was injured by the carelessness of the company's servants, the court held that the railway company was responsible, that the servant was not a mere volunteer, because the assistance which he undertook to render was to facilitate his own work, and thus promote the interests of his employer. The rule of exemption and its limitations are very clearly stated in this

case.

The distinction running through all the cases is this: that, where a mere volunteerthat is, one who has no interest in the work

undertakes to assist the servants of another, he does so at his own risk. In such a case the maxim of "respondeat superior" does not apply. But where one has an interest in the, work, either as consignee or the servant of a consignee or in any other capacity, and, at the request or with the consent of another's servants, undertakes to assist them, he does not do so at his own risk, and, if injured by their carelessness, their master is responsible. In such a case the maxim of "respondeat superior" does apply. The hinge on which the cases turn is the presence or absence of self-interest. In the one case, the person injured is a mere intrud

er or officious intermeddler; in the other, he is a person in the regular pursuit of his own business, and entitled to the same protection as any one whose business relations with the master exposes him to injury from the carelessness of the master's servants.

This distinction is sustained by the cases cited, and by every modern text-book to which our attention has been called; and we are not aware of a single authority which holds the contrary. The recent case of Wischam v. Richards, 136 Pa. St. 109, 20 Atl. 532, cited by defendant's counsel, is not opposed to it. It sustains it. In that case the plaintiff was hurt while assisting the defendant's servants in unloading a heavy fly wheel from a wagon. The court found, as a matter of fact, that the plaintiff was a mere volunteer, having no interest in the work which he undertook to assist the defendant's servants in performing, and, consequently, that he had no remedy against their master. The court say that the plaintiff had no interest in the delivery of the wheel; that the delivery was not completed, but was going on when the accident occurred, and the delivery was the act of the defendant; that the participation of the plaintiff was not that of an owner receiving his own goods, but was that of a servant assisting the servants of the defendant; and that this circumstance brought the plaintiff's case within the rule of nonliability. "The distinction," said the court, "is refined, but it seems to be substantial, and we feel constrained to recognize it and enforce it." The fact that the plaintiff was a mere volunteer, having no interest in the work which he undertook to assist the defendant's servants in performing, was the hinge on which the case turned, and defeated his right to recover. If the plaintiff had been sent to obtain the wheel, and, at their request or with their consent, had assisted the defendant's servants in unloading it, in order to hasten or facilitate his own work, and had been injured by their negligence, his right to recover would undoubtedly have been sustained. As already stated, the hinge on which the cases turn is the presence or absence of self-interest, or a self-serving purpose. In the one case, he is a mere volunteer; in the other, he is a person in the regular pursuit of his own business,-a distinction very obvious and substantial.

Mr. Beach, in his work on Contributory Negligence (section 120), says that where one assists the servants of another, at their request, for the purpose of expediting his own business or that of his master, and he is injured by the servants' negligence, the master is liable; that in such a case the relation of fellow servant does not exist, and in case of injury the rule of "respondeat superior" applies.

Mr. Thompson, in his work on Negligence (volume 2, p. 1045), says that care must be taken to distinguish the case of a mere vol

unteer from that of one assisting the servants of another, at their request, for the purpose of expediting his own business or that of his master; for in such a case he will not stand in the relation of fellow servant to them, and, if he is injured by their negligence, the doctrine of "respondeat superior" will apply, and their master will be responsible.

But in the present case it is urged by the learned counsel for the railroad company that the crew in charge of a gravel train have no authority to make such a request or give such consent as will authorize the servants of the consignee to remove, or assist in the removal of, earth from the cars.

We do not think that such a want of authority exists. It seems to us that the persons having the charge of freight are the very ones to give such consent or to make such a request; and it has been so held, both in England and in this country.

In Wright's Case, L. R. 10 Q. B. 298, it was so held. In that case Mr. Justice Field said that the agent to deliver freight is the proper person to give consent for the consignee to assist in its delivery. That was the heifer case already referred to.

And in Lewis v. Railroad Corp., 11 Metc. (Mass.) 509, it was so held. In that case a truckman was permitted by one McCoy to assist in the removal of a block of marble from a car. The truckman was allowed to take the car to the depot of another railroad company, and there, by the use of the latter's derrick, to make the attempt to lift the block of marble from the car, and place it directly on his truck. But the attempt failed. The derrick gave way, and the block of marble fell, and was broken. This brought into litigation, directly and sharply, the authority of these two servants-one a servant of the railroad company, and the other a servant of the consignee-thus to change the place and manner of delivering freight. And precisely the same argument was urged against the authority in that case as is urged against the authority in this case. It was said that McCoy was in no sense a general agent of the railroad company; that his only authori ty was to receive and deliver freight; that, his authority being thus special and limited, his consent to change the place and manner of delivering the freight was not binding upon the company. But the court held otherwise. The court held that the place and manner of delivering freight may always be changed by the servants of the carrier and the servants of the consignee; that their authority to make such changes is included in their authority to receive and deliver freight; that if the consignee of a bale of goods steps into a car, and asks for a delivery there, and it is passed over to him, the delivery is complete. The rule established by the authorities seems to be this: that the persons having authority to deliver freight and the persons having au

thority to receive it may always agree upon the place and manner of its delivery.

It

In the present case, the evidence tended to show that the railroad company, while engaged in grading a portion of its track in or near Portland, undertook to leave some earth at a point on the line of its road for Mr. Jose. Mr. Jose employed a contractor, by the name of Shannahan, to take the earth away. appeared in evidence that, at the request of the railroad crew in charge of the gravel train, Shannahan's men had assisted in dumping the earth left for Mr. Jose out of the cars; and on the day of the accident, when Shannahan's men came for more earth, the earth had been let in the cars, and the railroad men had gone on to where they were delivering earth for the use of the railroad. Consequently, Shannahan's men were obliged to dump the earth out of the cars themselves, or wait for an indefinite length of time for the return of the railroad men. It was a cold day in December, and to wait would be neither comfortable for themselves nor profitable for their employer; and so, for their own convenience and to facilitate their own work, Shannahan's men undertook to dump the earth out of the cars themselves. The decedent was one of them. The evidence shows that he was an experienced man at that kind of work. But one of the cars was defective, and had been improperly loaded, and it tipped over, and fell upon him, and inflicted the injuries of which, at the end of about seven months, he died.

The presiding justice instructed the jury that one who voluntarily assists the servants of another cannot recover from the master for an injury caused by the negligence or misconduct of such servants; that one cannot by his officious conduct impose upon the master a greater duty than that which he owes to his own hired servants; that care must be taken, however, to distinguish a mere volunteer from one who assists the servants of another, at their request, for the purpose of expediting his own business or that of his master, for in such a case he will not stand in the relation of a fellow servant to them, and, if injured by their negligence, their master will be responsible; that if the plaintiff (Thomas Welch) consented to assist in dumping the cars, at the request of the railroad crew in charge of the train, to expedite or facilitate the work which he was engaged in performing for Mr. Jose, he could not be regarded as such an intermeddler or volunteer as to preclude him from a recovery on that ground, provided the alleged negligence and injury were made out in other respects; nor could he be regarded as a fellow servant with the employés of the railroad, so as to preclude him from a recovery on that ground.

These instructions were several times repeated, and not always in precisely the same words; but such were the substance and effect of the instructions.

Counsel for the railroad company profess to

It

be greatly alarmed at the consequences of such a doctrine. What, they ask, will be the limit of such a power? Where will the line be drawn? And they profess to believe that, if such a power is conceded to the persons in charge of a gravel train, then the engineers of freight and passenger trains may turn over their engines to inexperienced persons, and the property and lives of the whole community be put in jeopardy. To thus enlarge and magnify the consequences of a ruling may be an ingenious mode of argument, but we do not think it is sound. It does not follow that, because the crew in charge of a gravel train may allow the servants of a consignee to as sist in removing earth from the cars, therefore the engineers of freight and passenger trains may turn over their engines to inexperienced hands. We give no countenance to such a doctrine. Our decision goes no further than to hold that the persons having the charge of freight may allow the servants of the consignee to remove it from the cars, and that the latter, while so engaged, have a right to be protected against the negligence of the former; in other words, that in such cases the rule of "respondeat superior" applies. Such a doctrine seems to be well sustained by authority, and we believe it to be sound. 2. We will now consider the motion. is the opinion of the court that the jury were properly instructed, and that the evidence was sufficient to justify a verdict for the plaintiff; but we think that the damages assessed by the jury ($8,000) were clearly excessive. When one is negligently injured, and he dies immediately, the largest amount recoverable is $5,000. The amount may be less, but never more. less, but never more. If the person injured survives for a considerable length of time, this limitation does not apply, or, rather, did not when this action was tried. What the rule may be under the recent statute (Act 1891, c. 124) will not now be considered. we think this statutory limitation, whether applicable to the particular case under consideration or not, is entitled to consideration in determining whether or not a verdict is excessive. The damages recoverable for negligently causing the death of a person must in every case depend largely upon what would probably have been the earnings of the deceased if he had not been killed. Other elements enter into the calculation, but the earning capacity of the deceased is always an im portant factor. The death of one capable of earning a large income is necessarily a greater loss to his estate than the death of one capable of earning only a small income. The earning capacity of the deceased in this case must have been small. He was not a skilled workman. His only employment had been working in sewers and shoveling gravel. This appears from his own deposition, taken before his death. And notwithstanding he was an unmarried man, and had no one dependent upon him for support, and 23 years of age, he had not saved a dollar of his earn

But