He went under the car to repair it, and while there parties in charge of the freight train switched a car onto the side track, which started the other cars on the track, and they pushed the car under which he was at work, moving it some few feet and injuring him. He had no red flag out with which to signal to the engineer, and no assistant to notify parties moving the train that he was at work under the car; and the engineer moving the train did not know there was any one under the car. He had no reason to suppose that any one was under it, and switched off his freight car onto the side track without any knowledge or reason to believe there was any danger in so doing.

Indeed, so far as the action of the engineer is concerned, no negligence can be affirmed in his conduct. The complaint is that the railroad company was negligent in not furnishing to one engaged in that business, and necessarily compelled to go under cars and liable to be there injured, a red flag which he might station out as a signal, or furnish him an assistant to give notice of his position; and that the railroad company was negligent in not so doing I have no question. Whenever they call upon an employe to go into such a position as that, I think it is their duty to provide him with the ordinary means of protection, which, we are informed by the testimony, is a red flag. It cannot be expected that an engineer in switching cars can send a man forward to see whether or not some one is under any car; and the red flag, being the ordinary signal of danger, should have been furnished to this man. But the troublesome question lies back of that. This plaintiff was an old railroad man, fully aware of the dangers of such work as he was then engaged upon. He had been employed on this road in such work for seven or eight months, and was in the habit of going under cars under just such circumstances. He had no flag, and had asked for none. Now, the railroad company insists that he waives his right to recover for any injury received, in consequence of that fact. This doctrine of waiver, upon which the company relies, is a doctrine which has been developed within the last few years. It has been carried by some courts to a dangerous extent-one which I think cannot be finally sustained.

It has been said, and I think there is force in it, that there is really no such thing as a separate and distinct defense of waiver, and that what is called waiver is simply one form of "contributory negligence;" that the difference between waiver and contributory negligence is the difference between passive and active negligence, and that what is meant by waiver is passive negligence, in omitting to do a thing which the employe ought to have done; and, in this case, it would be said that the plaintiff omitted to call for a flag,-omitted to take precautions which he ought to have taken,-and that is nothing more or less than passive negligence. As I said, this doctrine of waiver has been carried by some courts to a great extent. They have affirmed that an employe, whenever he finds suitable precautions have not been taken for his safety, ought to stop at once, and, if he con

tinues on, he assumes all the risks. I do not think that can be held to be law.

A case was presented to me in Des Moines last spring, where that claim was very urgently pressed by the railroad company. In that case, a common laborer, who had been employed for some time as a section hand, was, on this particular day, employed to load railroad iron. It appeared that the railroad company had substituted steel rails for iron rails, and simply thrown the iron rails to one side, and then sent a train along to pick them up. The train was constantly in motion at first, at a low rate of speed. As two rival gangs, one on each side of the train, worked together, and became more interested in their work, and worked more quickly, the train moved more rapidly. Finally, a flat car having been loaded too high, and the sides having been insufficiently protected, a rail, which was thrown on, fell off, and this laborer was caught and hurt, and the company tried to insist upon the doctrine of waiver,—that this man had been working all the day, the accident happening about 2 or 3 o'clock in the afternoon; that he was willing to do the work; and that he waived his right to compensation in view of that fact. He saw the danger he was in, and, seeing it, continued to work. I held that the company was liable. I do not think that the urgency can be forced upon an employe so quickly as that for deciding; that he cannot be called upon at the instant to stop work if he sees there is danger. Suppose an engineer, running a train between the point of departure and the point of terminus, finds that his engine is out of order, can he stop right there and say he will stop until the injury is mended? It would not be safe to do this. He must carry the defective engine to its point of destination. No other rule would be safe. And so, generally, a man cannot be called upon at the moment to say, "There is a defect, or there is danger, and I will stop." He has a right to wait a reasonable time; to consider the circumstances of the case, and to give notice to his employers that he is in danger; time enough to see whether the employer means to have the defect remedied; time enough to see the general way in which he conducts his business; and if he finds that his employer intends to use machinery with defects, or to conduct his work in a dangerous manner; finds that is to be his habit; finds that, after he has been notified, he still intends to conduct his business in that way, and ther goes on and continues in the work,-it is fair to assume that he takes the risks.

Of course, there can be no question where it is expressly agreed upon. Suppose, for instance, that I own a mill; suppose the machinery in it is clearly defective, and I say to an employe: "I am running a mill in which there is defective machinery;"—and I point out to him the defect;"are you willing to work here and take the risks ?" If he says he is, he cannot afterwards recover if he is injured. And so, in order that there should be an implied agreement, the facts should exist for so long a time that the employe has opportunity to see that

his employer means to let the machine remain in that condition, and carry on his business in that way as a general rule; and if he then continues at work, he may be presumed to consider the compensation sufficient to justify him in taking the risk. In this respect it appears that this plaintiff had been, for seven or eight months, in the employ of the company along this line of road; that he had done this work day after day without a flag, knowing its necessity, making no complaint, asking for no change; and it seems to me that, after we consider this and all the circumstances of the case, it must be said that, negligent although the company was, the man assumed the risks of the danger, knowing what it was, and cannot now hold the company responsible.

I think the motion for a new trial must be sustained.

LOCKWOOD and others v. COLEY.1

(Circuit Court, S. D. Georgia, W. D. 1884.)

NOTE SIGNED BY AGENT-RECOVERY AGAINST PRINCIPAL.

In an action on a note signed "J. A. D. Coley, Agt.," the original payee may maintain an action against the principal, who was known and recognized as such in the execution of the note, and who authorized the agent to sign notes in that way in the course of the principal's business. Merchants Bank of Macon v. Central Bank of Georgia, 1 Ga. 418, followed.

This was an action on a promissory note dated May 12, 1882, due October 15, 1882, payable to Lockwood, McClintock & Co., or bearer, for $1,114, signed "J. A. D. Coley, Agt." A copy of this note was set out in the petition. The action was against Charlotte T. Coley, and the petition contained an averment that Charlotte T. Coley used and carried on business under the name of "J. A. D. Coley, Agt.," and that with her knowledge and consent the name of "J. A. D. Coley, Agt.," (he being her husband,) was used as a substitute for her own name in executing contracts and negotiable instruments in the course of said business, and as indicative of her contracts and her business. Defendant demurred to the petition on the ground that Charlotte T. Coley could not be sued on a note signed "J. A. D. Coley, Agt."

Hill & Harris and J. A. Thomas, for plaintiffs.

W. A. Lofton, for defendant.

Upon this question the following ruling was made by

LOCKE, J. The demurrer is overruled. The ground of the decision is the case of Merchants' Bank of Macon v. Central Bank of Georgia, 1 Kelly, (Ga.) 418, 429. That was an action upon a draft payable to

1 Reported by Walter B. Hill, Esq., of the Macon, Georgia, bar.

the order of "Scott Gray, Agt." The suit was against the principal, and the supreme court of the state held that parol evidence was admissible to show that the name of the principal was disclosed at the time of the transaction, and recovery against the principal was sustained. The note here sued on being a Georgia contract, the law is applicable. It seems to be in conflict with the weight of authority elsewhere, but the case in 1 Kelly must be regarded as authority in this case.

The doctrine is said to be well settled that "when a written contract is made by or with an agent, the principal, although undisclosed, may sue or be sued upon it, except in the case of commercial paper."1 The reason given for this exception by all the authorities is a familiar one-the interests of commerce. A negotiable instrument must be "a courier without luggage.' As this is the reason of the rule it should also be its limit. The cases upon the subject are conflicting-"like Swiss troops, fighting on both sides." But the following statements are supported by principle and authority, although the "heaviest battalions" are not on the side of all of them. The cases may be divided into classes, as follows:

(1) Where the note is payable to an agent, and (a) the suit is in the name of the agent, and (b) the suit is in the name of the principal.

(2) Where the note is signed by the agent without words showing clearly that he is the "mere scribe," and (a) the suit is against the agent, and (b) the suit is against the unnamed principal.

Taking up these cases in the order named,

1. (a) CASES IN WHICH THE AGENT BRINGS SUIT UPON A NOTE PAYABLE TO HIMSELF AS "AGENT." The legal title in such case is in the individual so named and described, and he is entitled to sue as plaintiff upon the instrument.2

(b) CASES IN WHICH THE PRINCIPAL SUES UPON SUCH A NOTE. In such cases parol proof is admissible to identify the plaintiff as the owner of the note. Such proof does not contradict the instrument, but only explains the transaction. The result of the foregoing authorities is that either the agent or unnamed principal may sue upon a note made payable to "agent.

As between the original parties, or those taking with full notice of the real character of the party described as "agent," these principles seem clear and satisfactory. In such case, if the suit is in the name of the agent, it would not cut off a defense against the disclosed principal; nor, if it is in the name of the principal, would it cut off a defense against his representative, growing out of the transaction.4

2. (a) CASES IN WHICH THE NOTE IS SIGNED BY THE AGENT AND THE SUIT IS AGAINST HIM. The defendant seeking to evade personal liability, the English doctrine is that in these cases the agent is personally bound, (unless the liability of the principal is disclosed on the face of the instrument,) and that proof is not admissible as between the maker and payee to show that the latter knew the representative character of the signer and accepted the the paper as the principal's contract.5 This doctrine has been approved in the case of Nash v. Towne, and is sustained by a majority of the adjudicated cases; but the true doctrine is that of a later decision by the same court.7

1 Lerned v. Johns, 9 Allen, 419.

Dicey, Part. 135; 2 Daniell, Neg. Inst. ?? 1187, 1188.

3 Pacific Guano Co. v. Holleman, 12 Fed. Rep. 61; 12 Amer. Dec. 713-715, note;

v.22F,no.3-13

Baldwin v. Bank of Newbury, 1 Wall. 234.

42 Whart. Ev. 22 951, 1061.

5 Byles, Bills, (6th Ed.) 37.

65 Wall. 689.

7 Metcalf v. Williams, 104 U. S. 93, $8.

The rule, which may in any case deserve the odium of being called an estoppel, rests upon the imperative necessity of relieving negotiable instruments of all "impedimenta.” Inasmuch as such a note imports a personal liability, bona fide transferees thereof (in whose favor the estoppel is created) are entitled to have the same construed according to its clear legal import. This argument has no application and no force as between the original parties and those taking with notice of the facts. Cessat ratio, cessat lex. "The ordinary rule, undoubtedly, is that if a person merely adds to the signature of his name the word agent,' trustee,' treasurer,' etc., without disclosing the principal, he is personally bound. The appendix is a mere descriptio persona. It does not of itself make third persons chargeable with notice of any representative relation of the signer; but if he be, in fact, a mere agent, trustee, or officer of some principal, and is in the habit of expressing in that way his representative character in his dealings with a particular party who recognizes him in that character, it would be contrary to truth and justice to construe the documents thus made and used as his personal obligation, contrary to the intent of the parties.”1

The distinction now sought to be made is sustained by the following authorities: 2 Whart. Ev. § 951, 1061, 1058; Byles, Bills, (6th Ed.) 37, note 1; 38, note 1, (top page 63;) Mott v. Hicks, 1 Cow. 540; Green v. Skeel, 9 N. Y. 486. As already indicated, the defense of a representative character cannot be urged against third parties who have taken the note without notice of that relation.

(b) CASES IN WHICH THE SUIT IS BROUGHT AGAINST THE UNNAMED PRINCIPAL. It seems clear on principle that the original payee of the note is entitled to maintain an action against the real principal upon a security executed by the latter's agent in his known representative relation, and by due authority. The principal case is an authority for this proposition, although it was decided upon the ground merely that the note was a Georgia contract, and upon the authority of the Georgia case. The decision, however, is by the most eminent of the judges of that state,-one whose opinions have been frequently quoted with approval by the text writers and the courts. NISBET, J., says in that case "a party cannot be discharged who is apparently liable on a contract, but a new party may be introduced by parol." 3 The distinction already made is equally important here. An innocent third party taking a note, cannot on the one hand be defeated by any defense which alters the legal import of the character in which the party signs it, nor is he, on the other hand, entitled to take any benefit under any other than its legal construction. But, as between the original parties, and those who by virtue of notice occupy the same footing, the known but unnamed principal may be charged.4

There is another exception (although it is only apparently an exception) to the rule that no person can be charged upon a negotiable instrument except the person liable thereon according to its tenor and effect. The principal will be liable if he, by adoption, use the name of his agent, or his agent, by his authority, use his own name as indicative of the principal's contracts. "In such cases the adopted name is in law equivalent to the actual name of the party." There are certain rules peculiar to bills of exchange payable to and by agents which cannot be here noticed. The doctrine of these cases, however, justifies the discrimination which it has been sought in this note to establish: that while, as between third parties, negotiable instruments must be con

1 Per BRADLEY, Justice, 104 U. S. 98, 99. 21 Kelly, 429.

3 See 2 Whart. Ev. 951.

42 Whart. Ev. 22 951, 1061; Moore v. McClure, 15 N. Y. 558.

51 Daniell, Neg. Inst. ? 304, 399r.

6 See 1 Daniell, Neg. Inst. 8 309-314; Ewell's Evans, Ag. 187.