the business in the bands of Mr. Shattuck. That Mr. Shattuck went upon the ground, examined the property, required certain information to be furnished him, which was furnished by Mr. Fritz. That he took the necessary steps to adjust this loss, and on or about the 16th of July he did ascertain and certify that the Lebanon Mutual was liable to Mr. Fritz for $492.19 of the loss sustained by him. You will see his policy called for $500, and, in the apportionment among the various companies in which he was insured, this adjuster ascertained that this company was liable for $492.19 as its share of the loss.

"There is no doubt at all but what Mr. Shattuck did act in the capacity that has been stated, but the serious question for your consideration is, did he act with the knowledge and consent of this company? Had Mr. Fritz a right to presume from what Mr. Cross had done theretofore that he was authorized by this company to select an adjuster to ascertain this loss for it? Do the facts and circumstances detailed to you, as to what he did before this loss occurred, satisfy your minds that this company did authorize him to take all the steps that were necessary in connection with this risk, and that one of these steps would naturally and necessarily be to select an adjuster if there was a loss. Mr. Cross tells you that he had no such authority; that he did not appoint Mr. Shattuck the adjuster here; that, when he placed the other business in the hands of Mr. Shattuck, it did not include this company. You will recollect the testimony on the subject. Mr. Stocker tells you that, when he inquired from Mr. Cross who would look after the interests of the companies he represented, word came to his office in the course of two or three days that Mr. Shattuck would look after their interests; that accordingly Mr. Shattuck came, and that all the other companies' interests were handed over to him, and that he took charge of this company along with the rest. Mr. Shattuck denies that Mr. Cross did so authorize him to look after the interests of this company. He did authorize him to look after the interests of some of the companies, and some of the companies themselves authorized him to look after their interests. He was authorized directly by the companies Mr. Cross did not represent to look after their interests, and he says that Mr. Cross authorized him to look after the interests of all the companies he represented, except the Lebanon. Mr. Cross testifies in the same way. You will say whether or not you can rely upon that testimony. [It is for you to determine, under all the testimony in the case, whether or not Mr. Shattuck did represent this company in adjusting this loss; and whether he was authorized by this company, through its agent, Mr. Cross, if he had that power, to represent it.] Mr. Fritz evidently relied upon Mr. Shattuck's conduct. He furnished him all the information that he desired in connection with this, and the testimony in the case is that, when he was doing this work, Mr. Fritz asked him if he was representing all these companies, and be said he was. Mr. Fritz accordingly ex

ecuted the papers which Mr. Shattuck asked him to execute, and he supposed he represented this company, until he learned from the company itself that he did not. He says he did not ascertain that fact until last Monday. He testifies that in due course of time these proofs were made out, signed by Mr. Shattuck in the way indicated, placed in the hands of Mr. Cross, as the agent of the Lebanon Mutual Company, and were forwarded by him to the company some time in the month of July; that it never advised him until very recently that the proofs were not satisfactory. On August 10th, a month after, the company advised him that the proofs were not satisfactory, for the reasons which probably their letter contains. If Mr. Cross had no power to appoint an adjuster, and an adjuster was not appointed, then this company could not be bound by his action. You will see this depends upon a waiver upon its part. If it had no knowledge of what was going on, or if neither Mr. Cross nor Mr. Shattuck was acting as its agent in this respect, then there can be no waiver of its rights, on its part. [If, however, Mr. Cross had, in your judgment, the power to act, and Mr. Cross did act in consequence of that, and Mr. Shattuck, being thus authorized, acted, and this plaintiff accepted their action, then this company would be bound by that action, and it cannot screen itself now by repudiating the action of its agent.] * [Secondly, whether or not this company has waived, through its agents, duly constituted and properly appointed, the condition which requires the plaintiff here to furnish it proof of his loss within fifteen days?]"

#

The specifications of error are as follows: (1) The learned judge below erred in overruling the objection of defendant's counsel to the question asked the witness George R. Stocker, the bill of exceptions being as follows: Question. What did he [Wanamaker] say when he came there, [to office of witness?] (Defendant objects. Objection overruled. To which ruling counsel for defendant excepts, and prays the court to seal a bill of exception thereto, which is done accordingly.) (2) The learned judge erred in overruling the objection of defendant's counsel to the question asked the witness Stocker, the bill of exceptions being as follows: 'Q. What was said between Mr. Shattuck and Mr. Fritz? (Mr. Sellers objects. Objection overruled. To which ruling counsel for defendant excepts, and prays the court to seal a bill of exception thereto, which is done accordingly.)' (3) The learned judge erred in overruling the objection of defendant's counsel to the question asked the witness Stocker, the bill of exceptions being as follows: Q. In the conversation between Mr. Shattuck and Mr. Fritz, in your office, was there any question propounded to Mr. Shattuck by Mr. Fritz, in your presence, in relation to the adjustment? (Mr. Sellers objects to any testimony of statements made by Mr. Shattuck in the absence of any officer of the company defendant. Objection overruled. To which ruling counsel for defendant excepts, and prays the court to seal a bill of exception

thereto, which is done accordingly.)' (4) The learned judge erred in overruling the objection of defendant's counsel to the question asked the witness Wolfe, the bill of exceptions being as follows: 'Q. What did he [Wanamaker] say when he came in? (Mr. Sellers: I object to that for the same reason stated in the previous objection. Objection overruled. To which ruling counsel for defendant excepts, and prays the court to seal a bill of exception thereto, which is done accordingly.)”” The other specifications relate to the portion of the charge in brackets.

James C. Sellers, for appellant. Butler & Windle, for appellee.

PER CURIAM. The first four specifications of error are not assigned according to our rules. The remaining specifications all bear upon the question whether there was a waiver by the company of the provision in its policy which required proofs of loss to be furnished within 15 days after the notice of loss. This was the pivotal point in the case. Without going into the details of the evidence, we think there was sufficient upon this point to go to the jury, and that it was properly submitted. Judgment affirmed.

McCULLOUGH v. ASHBRIDGE. (Supreme Court of Pennsylvania. Feb. 20, 1893.)

CUSTOM AND USAGE-EFFECT.

In an action for mason work, at a specified price per perch, where the dispute is as to the number of perches contained in the work, a uniform, universal, and notorious custom of measurement among masons is binding, though the result of such measurement is greater than the actual contents.

Appeal from court of common pleas, Chester county; Waddell, Judge.

Assumpsit by James McCullough against Abram S. Ashbridge for work and labor. The action was originally brought in a magistrate's court, where plaintiff bad judgment for the full amount of his claim, $34, and costs. On appeal, plaintiff again recovered, and defendant appeals. Affirmed.

The charge of the court is as follows:

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'Mr. McCullough seems to have built four stone piers in the month of September, 1891, and he has brought this action to recover the value of that work. The questions presented in the cause are two: First, for whom did he do the work? and, second, how much work did he do? There is no question as to the price of the work; but for whom did he do the work? Was it for Abram Ashbridge? Or was it for Richard Ashbridge? If it was for Richard Ashbridge, then your verdict must be for the defendant. The plaintiff has brought suit against Abram Ashbridge, and, if he is not entitled to recover against Abram Ashbridge, your verdict cannot be against anybody else. Therefore your verdict must be for the defendant. And if Richard Ashbridge is the party who is liable to him, and Richard declines to pay what Mr. McCullough thinks is due, he

must bring another action against Richard. So you will see your first inquiry is to determine, for whom did he do this work? If it was for Richard, then your verdict must be for the defendant, as I have said. But who was it for? Mr. McCullough tells you that he learned, upon a certain day in September, that Abram bad called at his house to inquire after him. Not being at home, and Mr. Abrain Ashbridge learning that he would be at home at dinner time, he came back. Upou his first call, he made known to Mr. McCullough's wife what he wanted. In substance it was that he wanted to see Mr. McCullough about doing a piece of mason work for him, and he wanted to ascertain whether he could do it. As I said, he came back at noon to see him, and renewed the application; called to him through the window. Mr. McCullough was at dinner, you will remember, and inquired whether he could do a piece of mason work for him, or whether he was busy. Mr. McCullough said he was working day and night, and he was busy. Mr. Ashbridge wanted him to do this work, and Mr. McCullough said, What was it; and he told him he wanted him to build four gate piers, similar to those of Mr. Bull's, and inquired whether he would do the work. Mr. McCullough said that he did not do that work, but that Woodward did it, and, in reaching a conclusion, Mr. McCullough said that it would depend upon whether he could get Woodward to help him whether he did it or not; that he would tell him the next morning. This is the testimony of Mr. McCullough, supplemented to some extent by Mrs. McCullough, his wife, and by Miss Ferrel, the old lady who was there dining with them. On the other hand, Mr. Ashbridge told you that the work was not done for Abram Ashbridge, but for him personally; that he was the party who wanted the work done, and he was the party who asked his father to go up to ascertain whether or not Mr. McCullough would do it; that the work was done for him, and not for his father, although it appears to have been done upon his father's property, upon a farm owned by Abram Ashbridge, and a property in which Richard Ashbridge had no interest whatever. was there simply as a boarder with his father, as an inmate of his father's family. Now, gentlemen, you will have to ascer tain, as well as you can from the evidence, for whom was this work done. Was Mr. Abram Ashbridge acting as the agent of Richard Ashbridge, or was Richard acting as the agent of Abram? Richard Ashbridge tells you that his father went up at his request, and was therefore acting as his agent. You will say from the testimony, however, which of these gentlemen was the principal,—which of these gentlemen Mr. McCullough had a right to believe was the principal. As I recollect the testimony, there was nothing said to him as to which of them was the principal, or which was agent. They both saw him in regard to the work, and whether Abram saw him on behalf of Richard, or whether Richard in behalf of Abram, does not appear from the testimouy, so far as any

He

declarations are concerned. From the facts that are testified to, which had Mr. McCullough the right to believe was the principal, and which the agent? In absence of any declaration as to principal or agent, then we are to be guided by what took place at the time, and what right the party who was dealing with these people had to believe they occupied relatively to each other. Richard Ashbridge tells you that he inquired the price, and that the price was named to him. There is no testimony in the case which shows that Abram inquired about the price. No price was named. You will see that, as far as Mr. McCullough's testimony goes, Abram Ashbridge was to learn in the morning from him whether he could do the work, and thus complete the arrangement; but, in the mean time, Richard had called and ascertained that the work could be done, and could be done at $2 a perch. Now, if Richard was acting as the agent of Abram, then it was in the line of his agency to ascertain the price, as well as anything else. He had as much right to make a contract about the cost as he had to make a contract about the building of the posts. If he was representing his father in the capacity of agent, the inquiring of the price was in the line of that agency, and therefore the price was named to the father through him, as much as if it was named to the father. If, however, Richard was the principal, the contract was made directly with him, and directly with him as to the price, and the contract would be with him, and, of course, suit should be against him. But you must ascertain from the testimony in the cause whether Abram Ashbridge, the father, was the principal, or whether Mr. McCul lough was doing the work for Richard, and he was the principal. If you should conclude that the contract was made on Richard's contract, the verdict must be for the defendant. If, however, you should conclude that the father, Abram Ashbridge, was the principal, and that Richard was simply acting as his agent, then your verdict should be for the plaintiff.

you that Mr. Ashbridge offered to pay and tendered to Mr. McCullough $17.50 before this suit was brought. If this was so,and there was no dispute in the evidence as to that,-if you should conclude that there are but 8 perches and a fraction, your verdict will be for the plaintiff for $17.50, and he is not entitled to any interest. The effect of the tender would be to relieve the defendant from the payment of any interest. It does not relieve him, however, from the actual debt. He would still be liable for the debt. It will relieve him from the interest, and it may from the costs, but that is for the court, and not for you, to say. If, however, you should conclude that Mr. McCullough did 17 perches and a fraction of work, then your verdict would be for that amount, at $2 a perch, with interest from the time the work was done. You must ascertain which of these measurements is correct. The plaintiff has given you so many feet around, and so many feet high, and then divided by such and such a thickness. On the other hand, Mr. Ashbridge tells you that that is not the true rule; that the true way of measuring is according to the standard which he has given. Now, you will have to ascertain, as well as you can from the evidence, which of these measurements is correct, and whether this work measures 8 perches and a fraction, or whether it measures 17 perches and a fraction. In order to entitle you to dispose of this measurement upon a matter of custom, according to mason's measurement,' as it is called here, you must be satisfied in your own mind that that custom or that usage is uniform, universal, and notorious; that that is the custom or plan adopted by masons in measuring their work. Mr. Steine tells that the true way is to measure around the surface and the height. He tells you that all masons measure their work, where there is an outside surface, around the structure, and illustrated it by referring to this courthouse, and said, if the masonry here was to be done, they would measure the outside wails, get the height, multiply them together, and divide by a given number. He says that that rule is applicable to a stone pier, whether it is square or round,-the outside surface, measuring its heights, multiplying and dividing according to a given rule. If you undertake to dispose of this by custom, you must say whether that usage is universal, notorious, and customary,whether everybody is so familiar with it who has mason work done as to understand it; and the theory upon which that is based is that, when a man contracts to have a piece of mason work done, he understands that it is to be computed by mason's measurements. If that is the rule, -if it is universal,-everybody understands what he is doing, and knows just what the contract is when he enters into it. But if, however, that is not the known rule in the country, it cannot be set up ав a custom. But you must ascertain from the evidence which of these people is correct, and, as you determine which is correct, you must ascertain whether this gentleman did 8 perches and a fraction, or

"How much it should be for is the second inquiry which presents itself for your consideration. Shall your verdict be for $17.50, or shall it be for about double that, -some $34 or $35? You will see that will depend upon how much work Mr. McCullongh did. Did his work measure 8 perches and a fraction? Or did it measure 17 perches and a fraction? Which of these gentlemen is correct in their measurement? Mr. McCullough tells you that the work he did measured 17 perches and a fraction, and at $2 a perch,-about this there is no dispute,-he is entitled to have between $34 and $35, with interest from the time the work was done up to this time On the other hand, Mr. Ashbridge tells you the work which Mr. McCullough did amounted to but 8 perches and a fraction, and, at $2 a perch, would amount to about $17, and, with the interest which was calculated at the time he offered to pay him, it would make it $17.50. Let me say just here that, if you should conclude there were but 8 perches and a fraction, then the evidence shows

whether he did 17 perches and a fraction. | You will dispose of the case according to this decision, and your verdict will be for the defendant or plaintiff, according to the conclusion you may reach on the first question; and, if for the plaintiff, you must determine whether it should be for $17.50, or whether it should be double that amount, according to the amount of work you shall ascertain this gentleman did.

"I am requested by the defendant to pass upon some points which he has submitted for my consideration: First. If the jury believe that contract for which this suit is brought was made by the plaintiff and Richard D. Ashbridge, and not with Abram Ashbridge, the verdict will be for the defendant.' Answer of the court: That I affirm. I have already said so to you. 'Second. Any custom which when used in measuring the contents of a pier, produces a result showing a result much greater than the actual contents, is inequitable and unjust, and will not be enforced by a court of equity.' Answer of court: I affirm that. Third. If the jury believe the plaintiff was tendered the full amount for which he was entitled before suit was entered, the verdict must be for the defendant.' Answer of the court: I cannot affirm that point, gentlemen. As I have said to yon, the tender was made. There is no question about that. And if the amount which was tendered, to wit, $17.50, was all that was due this plaintiff at the time it was tendered, then your verdict will be for the plaintiff for that amount. It cannot, under these circumstances, be for the defendant. As I have said to you, the effect of the tender is simply to affect the question of interest and costs; it does not relieve the defendant from the actual debt he may owe. 'Fourth. Under all the evidence, the verdict must be for the defendant.' Answer of the court: I cannot say that to you. I feel it my duty to submit the questions I have already explained to you, and ask you to dispose of them, and it is for you to determine. Fifth. To affect a party with a custom variant from the ordinary rules of law, there must be proof of the usage, certain, uniform, and it must be so ancient that the memory of man runneth not to the contrary.' Answer of the court: I have already virtually affirmed that point. Sixth. The plaintiff has sued on an alleged contract to build at $2 per perch made with the defendant. There is no evidence that a contract as to the price was made with the defendant, and there is no evidence as to the value. Therefore the verdict must be for the de. fendant.' Answer of the court: As I have said to you in the course of my general charge, if Richard Ashbridge was acting As an agent for his father, there is evidence as to the price submitted through bim, as agent, to his father, for whom he was acting, and they had a right to agree upon the price. I cannot affirm that point. 'Seventh. There being evidence that there are different rules of measurement in this locality, the parties are relegated to the rules of law.' Answer of the court: If you should con

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ted."

A S. Ashbridge, Jr., for appellant.

PER CURIAM. Judgment affirmed.

BARLOW v. STANDARD STEEL CASTING CO.

(Supreme Court of Pennsylvania. Feb. 20, 1893.)

NEGLIGENCE OF FELLOW SERVANTS-INJURY TO EMPLOYE.

Where a crane is slipped from slow gear to fast gear, through the negligence of fellow servants, while a heavy weight is being raised, the master is not liable for injuries to one of the workmen, sustained by reason of their inability to hold the weight in the fast gear, and the consequent rapid turning of the crank; and the breaking of the handle of the crank, after the crane had slipped into fast gear, cannot render the master liable.

Appeal from court of common pleas, Delaware county.

Action by James William Barlow against the Standard Steel Casting Company for personal injuries sustained while in defendant's employ. From a judgment of nonsuit, plaintiff appeals. Affirmed.

The plaintiff, James William Barlow, a young man about 22 years of age, was enployed by the defendant, the Standard Steel Casting Company, as a chipper. He entered their employ in February, 1890, and remained with them until he was hurt, on the 26th of December of the same year. On numerous occasions after the date of his employment-sometimes three times in a week, then not again for two or three weeks-he was called from his work as a chipper to assist in the work of lifting heavy weights by means of a crane. This crane was operated by a solid shaft running through the body of the crane, with a crank at each end of the shaft on both sides of the crane. On this shaft are two cogwheels on opposite sides of the crane, one of which can be made part of a series of gearwheels, known as "slow gear," and the other part of another series of gearwheels, known as "fast gear." When the fast gear cog is in gear, the slowgear cog is out of gear, and vice versa, the change from one gear to the other being made by slipping the shaft forward or backward. When the crane is in fast gear, the power is applied to the weight through a fewer number of wheels than when in "slow gear;" the fast gear being used for raising comparatively light weights, while the slow gear is applied to the raising of very heavy weights, up to the limit of the capacity of the crane. From a well-known