as to material and design, and why they were, in his opinion, neither efficient nor suitable, and why they had been superseded in all well-designed similar plants, defendant was not prejudiced by the refusal of the court to permit the witness to answer as to whether the compressors in question were suitable for the purpose for which they were installed, etc.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4194-4199.]

7. WITNESSES-EXAMINATION-QUESTIONS.

On an issue as to the insufficiency of certain compressors, installed in defendant's plant by plaintiff, the question, asked of an expert, as to whether or not in 1885 he saw better compressors than those installed by plaintiff for defendant in use in England, was properly excluded as too general.

8. CONTRACTS-BREACH-PERFORMANCE-DEFECTS.

Where plaintiff, prior to his employment by defendant, was a resident of England, and did not hold himself out in a general sense as a mechanical expert, but merely as having experience in managing alkali works, and as knowing the proper requirements and construction thereof, and it also appeared that all defendant's plans and contracts for the construction of its works were based on the works at which plaintiff had been previously employed in England, plaintiff was not responsible because he installed English gas compressors in defendant's plant, when American compressors of equal efficiency and economy and equally well adapted for the purpose could have been purchased for much less money. 9. SAME.

Where, in an action for services of plaintiff under a contract for the construction of an alkali plant, defendant claimed that the plant constructed by plaintiff was obsolete and insufficient, plaintiff was entitled to prove that such plant was better than an English plant after which it was modeled, and that it was up to date in character, efficient, and as good as those of other concerns engaged in the same business.

10. TRIAL-REQUEST TO CHARGE-REFUSAL.

The trial judge is entitled to refuse to instruct the jury in the language proposed in a request to charge, and to present the case to the jury in his own language, provided the entire case is covered and the law correctly declared.

[Ed. Note. For cases in point, see Cent. Dig. vol. 46, Trial, §§ 664-668.] 11. CONTRACTS-ACTION FOR SERVICES-INSTRUCTIONS.

In an action for services under contract for the installation of an alkali plant, an instruction that if plaintiff, solely because of ignorance, incompetence, or negligence, erected for defendant works of an antiquated style and plan, which were insufficient for the purpose intended, and placed therein engines, pumps, and other machinery which were antiquated and insufficient, and at an expense which was unreasonable and unnecessary, allowances might be made for damages resulting from such negligence or incompetency, but that the jury should consider whether an English plant was contemplated by both parties as a model, and whether such contemplated design was reasonably carried out, was proper. 12. SAME-PRESUMPTION OF SKILL.

In an action for services under a contract of employment, an instruction that, when plaintiff entered into the contract, the law implied an undertaking that he would use reasonable care and diligence, and would exercise reasonable skill and knowledge in the prosecution of his duties, but, in deciding such question, the jury should consider defendant's knowledge, at the time the contract was made, of plaintiff's previous experience and training, was proper.

Boyd, District Judge, dissenting.

In Error to the Circuit Court of the United States for the Western District of Virginia, at Abingdon.

George E. Penn (James L. White and F. W. Christian, on briefs), for plaintiff in error.

William W. MacFarland and Daniel Trigg, for defendant in error. Before PRITCHARD, Circuit Judge, and MORRIS and BOYD, District Judges.

MORRIS, District Judge. This was an action at law, instituted August 3, 1903, by T. T. Mathieson, stated in his declaration to be "an alien and subject to the kingdom of Great Britain, plaintiff," against, as stated in the declaration, "The Mathieson Alkali Works, a corporation under the laws of the state of Virginia, and a citizen of Virginia, and a resident of the Western district of Virginia, in which its principal office is situate, defendant." The action was to recover a balance of salary alleged to be due to T. T. Mathieson, the plaintiff below, by the corporation, the Mathieson Alkali Works, under a contract in writing, dated August 15, 1893, and sealed with the corporate seal of the corporation, by which the corporation employed the said plaintiff as general superintendent for the term of eight years. The case was submitted to a jury, and, the verdict being in favor of the plaintiff, the defendant corporation, the Mathieson Alkali Works, by writ of error has brought the case here to test the correctness of the rulings of the trial judge upon questions of pleadings, of admissibility of testimony, and of instructions to the jury, which were excepted to during the trial.

The plaintiff in error now in this court for the first time raises the question of the sufficiency of the averments of the declaration to sustain the jurisdiction of the trial court, and it is urged that the averment that the Mathieson Alkali Works, "a corporation under the laws of the state of Virginia, and a citizen of Virginia, and a resident of the Western district of Virginia, in which its principal office is situate," is not equivalent to the phrase, "created by, or organized under, or existing under the laws of Virginia," and is insufficient. We think that the phrase, "a corporation under the laws of the state of Virginia," is equivalent in legal intendment to the phrase, "existing under the laws of Virginia." Grand Trunk Ry. Co. v. Tennant, 66 Fed. 922, 14 C. C. A. 190. Furthermore, we think that, if a more specific jurisdictional averment was needed, it is supplied in another part of the declaration, in which the contract sued upon is inserted verbatim as a part of the declaration. It is therein recited that the party of the first part is "the Mathieson Alkali Works, a corporation existing under the laws of the state of Virginia, with headquarters located at Saltville, in said state." Chapman v. Barney, 129 U. S. 677, 9 Sup. Ct. 426. 32 L. Ed. 800, and Thomas v. Board of Trustees, 195 U. S. 207, 25 Sup. Ct. 24, 49 L. Ed. 160, relied on by the plaintiff in error, were cases in which there was no averment that the party was in fact a corporation at all.

It is assigned as error that after the jury had been sworn the plaintiff was allowed to amend his declaration by adding a count declaring on the contract as a sealed instrument, whereby the defendant was deprived of the benefit of his plea of the statute of limitations of five

years. In the plaintiff's declaration the contract is set out verbatim, and, although it plainly recites: "In witness whereof the said Mathieson Alkali Works has caused this agreement to be signed by its president and attested by its secretary, and its corporate seal attached hereto, and the said T. T. Mathieson has signed the same"-in copying this contract into the declaration nothing to represent a seal was indicated. When the contract was produced in evidence, and it was apparent that the corporate seal had been affixed, and that it was a sealed instrument, as recited in the contract itself, leave was granted the plaintiff to amend the declaration to make it conform to the fact. Such an amendment, if the court considers that substantial justice will be promoted by it, is authorized by section 3384 of the Virginia Code of 1887 [Va. Code 1904, p. 1792], and it is common practice. Mack v. Porter, 72 Fed. 236-243, 18 C. C. A. 527; Chapman v. Barney, 129 U. S. 677681, 9 Sup. Ct. 426, 32 L. Ed. 800. It is authorized by section 954 of the Revised Statutes of the United States [U. S. Comp. St. 1901, p. 696]. There can be no question that the amendment was within the discretion of the trial judge and was properly allowed.

The contract being under seal, the statute of limitations applicable under the laws of Virginia was ten years, and the court was right in rejecting the plea of five years. The contract was as follows:

"These articles of agreement made and entered into by and between the Mathieson Alkali Works, a corporation existing under the laws of the state of Virginia, with headquarters located at Saltville, in this state, party of the first part, and T. T. Mathieson, party of the second part, witnesseth as follows:

"(1) The said Mathieson Alkali Works have employed the said Mathieson as general superintendent for the term of eight years upon the terms and conditions hereinafter stated. That is to say, the said T. T. Mathieson is to give his time and attention for either two or three years, as he may elect, to the erection and general management of the works of the said company, and also to their operation after the same shall have been erected. It being understood and agreed during this term of either two or three years as the case may be, the said Mathieson is to remain and be present at such places in the United States as the business of the company may require, principally at Saltville, except that he is to have such vacation during this period as can be availed of without detriment or hindrance to the proper management of the business of the said company, and for this period of two or three years, as the case may be, he is to be paid at the rate of 3,000 pounds sterling per annum, payments therefor being made in monthly installments.

"(2) For the remainder of the unexpired term of eight years the said Mathieson is to be paid 1,500 pounds sterling per annum and during this unexpired portion of the period of eight years, it is understood that the said Mathieson shall not be required to spend any more time in America than he may elect to spend. The object and purpose, however, being that he shall give such attention to the business as may be necessary in order to promote its best interests. "(3) The said Mathieson Alkali Works agree to pay the said Mathieson during the full period of eight years a commission at the rate of 5% per annum upon all net profits realized by the Mathieson Alkali Works over and above 60,000 pounds sterling per annum.

"(4) The above compensation is to give the said Mathieson Alkali Works the ownership for the United States an exclusive right to use any patents or any interest in any patents which the said Mathieson may now own or which he may hereafter perfect or acquire during the period of this contract.

"The Mathieson Alkali Works further agree that they will provide a suitable residence for the said T. T. Mathieson at the works at Saltville, Virginia, dur

ing said period of eight years or such portion as the said T. T. Mathieson shall elect to reside at Saltville, Virginia.

"The Mathieson Alkali Works further agree that the said T. T. Mathieson has the option to purchase $100,000 worth of the company's stock at par, with interest at the rate of 5 per cent. per annum added, from the average date of payment of the subscribers to the stock of said Mathieson Alkali Works, at any time he may elect to do so during the period of the first three years of his employment, and the company agrees to reserve the said shares for the said T. T. Mathieson during the said period.

"The said Mathieson agrees that he will not enter into any similar business In the United States of America during the continuance of this agreement. "The salary of the said T. T. Mathieson is hereby declared to begin from the 1st day of February, 1893.

"In witness whereof the said Mathieson Alkali Works has caused this agreement to be signed by its president and attested by its secretary and its corporate seal attached hereto, and the said T. T. Mathieson has signed the same. "Executed in duplicate on this 15th day of August, 1893.

"[Signed]

"[Signed]

Mathieson Alkali Works,

"By Edward E. Arnold, President. T. T. Mathieson,

"[Corporate Seal Mathieson Alkali Works, 1892.]

"Signed in presence of

"J. F. Van Name.
"J. H. Ingram.
"[Signed]

M. P. Robertson, Sec'ty. [Seal.]"

The plaintiff's claim as submitted to the jury was for the unpaid £1,500 sterling per year from September 1, 1896, to February 1, 1901, a period of four years and six months, amounting to about $33,750, with interest. The plaintiff claimed that he had fully performed and carried out all the acts and things to be done by him according to the terms of the contract and that the defendant had failed to pay him in breach of the contract.

The defendant by its special pleas set forth that the contract of employment of the plaintiff was made in contemplation of the erection and management by the plaintiff of extensive works for the manufacture of soda ash, caustic soda, and other products at Saltville, Va., requiring peculiar skill and knowledge which the plaintiff had represented that he possessed, but that the plaintiff did not have nor exercise the knowledge, skill, and care required for the performance of the duties contemplated by the contract, but was careless, negligent, and unskillful, and constructed for the defendant works of an antiquated style, insufficient for the purposes intended, with antiquated and insufficient appliances, at an excessive and unreasonable cost, in consequence of which the defendant has been obliged to tear down and remodel its works, and discard the machinery placed there by the plaintiff, and substitute other machinery at great loss; that the plaintiff absented himself at times when his presence was specially needed, and did not give such attention to the business of defendant company as was necessary to promote its best interest, but conducted himself in a negligent and careless manner, and left the United States. during the year 1896, and did not return. The defendant further claimed by way of recoupment that by reason of the want of skill and neglect of the plaintiff in the performance of his contract the defendant had sustained damages amounting to $150,000, which was

owing by the plaintiff to defendant, and which the defendant was willing to set off against the plaintiff's claim.

At the trial the evidence showed that the defendant company was promoted by Mr. Edward E. Arnold, of Providence, R. I., who had for many years been selling agents in the United States of the products of the alkali works of N. Mathieson & Company at Widnes, in England. Mr. N. Mathieson, the father of the plaintiff, was the managing partner conducting those works, which were successful and of high repute. The plaintiff had been general manager of those works for 15 years, and in 1892, when the negotiations began which led to his signing the contract in suit, he was profitably employed with another manufacturer of chemicals in England. Mr. Arnold visited and inspected the works at Widnes, and he knew that the Widnes plant was the one that the plaintiff was familiar with and accustomed to. Mr. Arnold had the most optimistic estimate of the advantages of the location at Saltville as a site for the proposed works, and prevailed upon Mr. Neil Mathieson to come to the United States and visit it, and gave the new company Mr. Mathieson's name. There seems no room to doubt that it was the works at Widnes which were in the mind of all the parties as in a general way the pattern after which the new works at Saltville were to be erected. The plaintiff says he knew no other.

Evidence was given to the jury on behalf of the plaintiff tending to show that the works and machinery erected under his direction and superintendence were of the most approved design and the best known for the purpose; that he gave to the business faithful and skillful attention; that he spent the first three years of the contract continuously at Saltville, with only such vacation as could be availed of without detriment to his duties; that after the expiration of the three years he gave to the business, by correspondence and suggestion, such attention as was necessary to promote the defendant's best interest. He testified that the works were reasonably successful, but that disappointment as to the results arose from the poor quality of the limestone near the works and the weak nature of the brine pumped from the wells; that the impurities of the limestone choked the pipes and caused delays and expense; that great expense arose from the placing of the works at the foot of a mountain close to the river's bank, for which location he was not responsible.

The defendant on its behalf offered evidence tending to prove that the works were badly designed and constructed by the plaintiff that the machinery was antiquated in design, unsuitable, and unreasonably costly; and that the plant had to be largely reconstructed before it could be successfully operated. Among the exceptions and assignments of error relied upon by the defendant corporation was the refusal of the court to allow the defendant to ask the plaintiff the following question in cross-examination :

"Q. I ask if the reason why you didn't return to the United States (after leaving in June, 1896) was because Mr. Johnston was appointed general superintendent?"

And the further question:

"Q. If Mr. Johnston had not been appointed superintendent, would you have returned to the works at Saltville?"

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