Rolling Mills at Cleveland, and by a traffic arrangement the Erie Company switches to the defendant's tracks any car that the Union Rolling Mills wish to send over the defendant's road. It is immaterial who owned the car in question. It was furnished for the purpose of carrying the iron which the defendant company, in consideration of the freight charges paid it for the entire distance, agreed with the consignor to transport from Cleveland to Girard. Its contract required it to take the iron loaded at the mills; and hence it must be assumed, in the absence of evidence to the contrary, that it did so by the use of the car in which the iron was loaded and transported to its destination. The fact that the Erie Company did the switching to place the car on the defendant's tracks does not prove that it furnished the car, or that the defendant company did not furnish it, or relieve the latter company from its duty to have the car efficiently inspected and kept in proper repair. The Erie Company had no contract with the Rolling Mills Company or its sales agent to carry the iron from Cleveland to Girard. That company simply switched the car from the mill to the track of the defendant company, which by its bill of lading agreed to transport the iron from Cleveland to its destination. The fifth assignment is not sustained.

The sixth, seventh, and eighth assignments of error depend upon the correctness of the position assumed by the appellant in the other assignments, and are therefore not sustained.

The judgment is affirmed.

(232 Pa. 560)

EVANS v. LOOMIS et al. (Supreme Court of Pennsylvania.

July 6, 1911.) 1. INDEMNITY (§ 8*)-CONSTRUCTION OF CONTRACT-SCOPE OF LIABILITY.

An indemnity bond, given by the purchaser of corporate stock to the sellers, who were sureties on a note of the corporation, conditioned that if the corporation or the purchaser of the stock should pay the note within two years, and save the sellers from all loss or damage from liability incurred by them as sureties, the obligation should be void, otherwise to remain in full force and virtue, though the sellers of the stock were subsequently released from their liability on the note, and other security was taken by the payee, was sufficient to create a double obligation on the part of the purchaser, first, to pay the note, if not paid by the corporation, and, next, to indemnify the sellers as sureties.

[Ed. Note. For other cases, see Indemnity, Dec. Dig. § 8.*]

2. INDEMNITY (§ 12*)-CONSTRUCTION OF CON

TRACT-SCOPE OF LIABILITY.

which had plainly written on its face, "This note is collateral for one of like amount now past due," did not affect the liability of the purchaser of the stock.

[Ed. Note.-For other cases, see Indemnity, Cent. Dig. § 27; Dec. Dig. § 12.*]

Appeal from Court of Common Pleas, Erie County.

Evans, trustee of S. M. Keith, against Marion Scire facias sur mortgage by George W. E. Loomis and others. From an order awarding distribution of fund, defendants appeal. Affirmed.

The court below found the following facts: (1) The Erie Cork Works, the name of which was changed to Erie Rubber Works, was a corporation located at Erie, Pa. (2) Prior to December 19, 1905, George W. Evans and B. B. Brown were stockholders in said corporation, and on that day they sold their stock to the defendants, Marion E. Loomis and A. T. Loomis, her husband, or to one of them. (3) At that time said Evans and Brown were sureties for the Erie Cork Works on a $2.000 note held by Miss Sarah Keith, and it was then agreed that they would remain liable thereon, or on any renewals thereof, for two years, in consideration of which, said Marion E. Loomis and her said husband gave a bond and mortgage to said George W. Evans, as trustee, in the penal sum of $4,000, conditioned in substance that the said Erie Cork Works, or the obligors in said bond and mortgage, would pay the said $2.000 note on or before the termination of said two years, and save harmless the said Evans and Brown. The bond and mortgage recited said note, and the agreement of Brown and Evans so to remain sureties thereon; and, further, "that the parties of the first part * * stood bound unto the party of the second part in the sum of $4,000, conditioned for the payment of $2,000, interest and damages, in manner following, to wit: Whereas the Erie Cork Works, of Erie, Pa., is indebted to Miss Sarah Keith, of Girard, Pa., upon a certain note in the sum of two thousand dollars ($2,000), with interest thereon from the date of said note; and whereas, aforesaid George W. Evans, together with B. B. Brown, both of the city of Erie, Pa., are liable as sureties on said note for a period of two years from the maturity of the same, or upon any renewal thereof for the same period or upon any obligation that it may be necessary for said Erie Cork Works to give for the purpose of raising money with which to pay said note, in the event that said Sarah Keith requires the same to be paid: Now, if the

reason of the liability incurred by them as aforesaid, without fraud or further delay, then this obligation to be void and of none effect, or else to be and remain in full force and virtue." (4) Said cork works became bankrupt, and a distribution of its assets paid $360.80 to apply on said debt as of September 1, 1909, and the balance remains unpaid. (5) On May 29, 1908, the holder of the $2,000 note made the following indorsement thereon: "For value received I hereby release Geo. W. Evans and B. B. Brown from any responsibility on this note as indorser or maker of the same. Miss S. M. Keith." (6) The only consideration for the release was the assignment of the bond and mortgage. The note on which said release was written was never delivered to Evans or Brown, but has continued in the possession of Miss Keith. (7) On February 1, 1908, the Erie Rubber Works, as collateral to the said note of $2,000, gave another note to Miss Keith, for a like amount, with William C. Kraemer as surety; "but that had nothing to do with the said release written afterwards on the [original] note, as above stated, or with the assignment to her of said bond and mortgage." (8) No actual consideration was paid by Evans or Brown to Miss Keith for the release to them, excepting the assignment of said bond and mortgage. (9) Brown and Evans were not indebted to Miss Keith in any sum whatever at the time the note was given to her by the cork works, but were only liable as indorsers on the note in question. (10) At the time the said note was given, Brown and Evans were not indebted to the cork works in any sum whatever, as principal debtors, but became liable as indorsers on the note for the accommodation of said corporation. (11) A. T. Loomis and Marion E. Loomis were not indebted to the Erie Cork Works in any sum whatever on December 19, 1905, the time of the execution of the bond and mortgage to George W. Evans, trustee. (12) No part of the note was ever paid, except the sum of $360.80, which was paid by the receiver of the Erie Rubber Works as a final and only dividend from the assets of the corporation, which is insolvent and without further assets.

The

court ordered that the plaintiff should be paid the balance of the $2,000 note, with interest thereon, out of the fund in court, and that the surplus of the fund, if any, was to be paid to the defendants.

Argued before FELL, C. J., and BROWN, MESTREZAT, STEWART, and MOSCHZISKER, JJ.

E. L. Whittelsey, for appellants. L. E. Torry and Gunnison, Fish, Gifford & Chapin, for appellee.

MOSCHZISKER, J. [1] The defendants contend that the liability created by the bond and mortgage referred to in the findings o the court below was one of indemnity only,

653

to save and keep harmless Evans and Brown from any loss or damage by reason of their liability as sureties or indorsers on the note to the use plaintiff, Miss Keith; that when the indorsers were released by the payee of the note the condition of the bond and mortgage was fully satisfied, and there could be no recovery thereon; while the use plaintiff contends that the contract was not for the sole purpose of indemnifying the indorsers, but that it was also for the purpose of making the obligors and mortgagors liable to pay the note; that the obligation to pay the note, and the obligation to indemnify the indorsers, were separate and independent conditions or covenants; and that the first could not be satisfied or affected by the release of the other. The court below decided in favor of the plaintiff, and we see no error in the result reached.

The contract recites the note of the cork works to Miss Keith, and that Evans and Brown were liable as sureties thereon; it provides: "Now, if the said Erie Cork Works, or the parties of the first part hereto [the defendants Loomis] shall pay the said obligation *** [the note in question] and shall save and keep harmless the said George W. Evans and B. B. Brown from any and all loss or damage resulting to them by reason of the liability incurred by them, then this obligation to be void, else to be and remain in full force and virtue." The language used is sufficient to create a double obligation, first, to pay the note, if not paid by the corporation debtor, and, next, to indemnify the indorsers on the note.

or

The fact that the defendant's obligation was given to a trustee, and not directly to the indorsers, lends force to the thought that it was intended to create such a double liability; otherwise there was no necessity for the use of a trustee. When called as a witness for the defense, Evans testified: "I was instrumental in getting the money from her [Miss Keith], and I did not want her to blame me." He and Brown (the indorsers on the note) had been large stockholders in the cork works, and when they sold their stock to the defendants Loomis, they were anxious, apparently, not only to protect their own interests so far as the obligation of the corporation upon which they were sureties was concerned, but they also desired at the same time to take care of and fully protect the interest of Miss Keith. It is easy to believe that the obligation then exacted from the defendants was made and entered into with this double object in view. Presumably, if the defendants Loomis had not undertaken to pay this debt of the cork works, upon which Evans and Brown were liable, the latter would have liquidated the obligation, added that much to the value of the works, and charged the defendants for their stock accordingly, so the latter were in no manner prejudiced by the assignment of the mort

gage to Miss Keith, or by the release given to Evans and Brown.

The desire to carry out this thought of protecting Miss Keith was recognized by the trustee named in the contract up to the time of the acquittance of Evans and Brown. He testified that he assigned the bond and mortgage over to Miss Keith as security to her when she gave the release, and that their transfer was the only consideration for the release known to him. Since the bond and mortgage were given to the trustee and "his assigns," he had the legal right to assign them to the use plaintiff, and since the words used therein indicated that one of the purposes was to secure the payment of the note, Miss Keith had the right to assume that she could safely accept them from the indorsers as a substitute for their liability. The defendants did not offer any facts surrounding the creation of the bond and mortgage which would tend to indicate that it was not their intention to become responsible for the payment of the note to Miss Keith, if called upon. On the whole, we conclude that the court below fell into no error in holding that the obligation of the defendants was not simply to indemnify the indorsers, but was also to pay the debt to the holder of the note.

[2] The other note given by the corporation to Miss Keith, and indorsed by one Kraemer, referred to in the seventh finding of the court below, has plainly written upon its face, "This note is collateral for one of like amount now past due;" the reference being to the note upon which Evans and Brown were indorsers. A party may hold more than one collateral for the same debt. Under the circumstances, we cannot say that there was error in the conclusion that the acceptance of this note by the use plaintiff did not affect the question of the liability of the defendants.

We have discussed all the points suggested in the statement of the question involved, and necessary to the determination of this case. The assignments of error which comprehend these points are overruled; all others are dismissed; and the order of the court below is affirmed, at the cost of the appellant.

Action by Martin Zuraw, by his next friend, John Maras, against the Hammermill Paper Company. From an order refusing to take off compulsory nonsuit, plaintiff appeals. Affirmed.

The facts were as follows:

"Plaintiff was employed by defendant as one of a gang of men, engaged in unloading pulpwood from flat cars into a shed at defendant's plant. He worked nights, and at the time of the accident the men had unloaded one car and pushed it out, and were pushing a loaded car in, when plaintiff's foot was caught under a car wheel, and crushed. The witnesses spoke through an interpreter, and the facts were not perfectly developed.

"There was no faulty construction; the building or shed, where the wood was unloaded, was all right, and so was the track and the car; and the place was lighted by electricity. The car, when in place to be unloaded, came close to the shed, and in throwing off the wood pieces of bark and wood would drop down between the car and the shed, and from time to time were cleared up by the workmen, perhaps under the direction of the foreman. When the said loaded car was being pushed in, there was some such rubbish lying in there, and plaintiff claims to have stepped on it, and slipped under the wheel.

"Plaintiff was over 17 years old, and had been working at the same work and same place for 22 months. He had helped to push out and in and unload over 100 cars, and knew about such rubbish accumulating there, and could have seen it, had he looked. Plaintiff, when hurt, was around in front of the car, and on the side next to the shed. In fact, he was in between the front end of the car and the shed. He was not in sight of the boss, and was not told by any one to go in where he was.

(232 Pa. 544)

ZURAW v. HAMMERMILL PAPER CO. (Supreme Court of Pennsylvania. July 6, 1911.)

SERVANT-MANIFEST DANGER - CONTRIBUTORY NEGLIGENCE.

In an action for injuries to a servant, nonsuit held properly directed on evidence that plaintiff, having a safe place in which to work, voluntarily took an unsafe position.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 681, 743-748; Dec. Dig. § 238.*]

work, the defendant is not liable because plaintiff voluntarily took an unsafe place.

and car was not a fit place to walk, even when free from rubbish; and there is nothing to show it was intended or suffered by defendant to be used for that purpose. And

"The very narrow space between the shed