he tried to straighten up to get out of there, as he thought there was some danger when Crowley spoke about it, but, before he could straighten up, the stick came down and struck him on his hand, which was lying across the stone somewhere; that as near as he could tell he was about half straightened up, with his hand on the stone, trying to straighten up, when the stick struck him; and that neither Crowley nor any one else gave any warning of danger before nor after he went in there. the foot of the derrick; that they had taken off one of the side chains and hitched one to the pulley blocks, and that the plaintiff was, perhaps, 12 or 15 feet up the mast, getting ready to hitch the blocks to another chain he had put around a big stone the day before to draw the mast up by; that the plaintiff was in under the mast, and he asked him if he did not know there was a lot of slack under that stone, and told him to come out of there, for it was not safe in there; that the plaintiff said the chain was all right; that they put it there the day before to haul the stick up with, and pulled hard, and it was all right, and with that he reached out his hand to attach the pulley blocks, being down on his knees with his hand resting on the stone, and the moment he hooked on to the chain the slack under the stone took up and the whole thing shot ahead. Crowley further testified that the other end of the chain around this big stone was hitched around the blocking at the foot of the mast to which the iron socket was fastened. On cross-examination he was asked if he did not know that he was 12 or 15 feet further up under the mast where a chain was fastened to a big stone near the middle of the mast, and was pulling a block up there to fasten to that chain, and he answered that he was going to hitch the pulleys to some chain that was hitched on there. He further testified that, when he got up there, Crowley said there was some slack there, but that he did not reply that there was none, nor say that it would be all right to fasten the block on there, nor try to fasten The defendants say in their brief that the it on there right after that, but dropped the condition that made the accident possible block and started; that most likely Crowley was that the mast was left suspended in the told him about the slack, to warn him of the air with only one side chain on the butt, and danger, and, when asked if Crowley was not they say that the plaintiff was to blame for doing every thing in his power to prevent that, and exonerate themselves. But who his getting hurt, he replied that he did not was to blame for that was an important have time to get out of there. He also said question in the case on which the testimony that he saw the side chain on when they was conflicting, and so was for the jury. were raising the mast, but whether he knew Crowley admits that he knew one chain was that one was taken off is left to inference off shortly before the accident, and he may for aught we can find, and plaintiff's counsel have known it sooner than he admits, for says there is no evidence of it, while de- he knew that the mast was stopped, for a fendants' counsel say that the plaintiff does reason that involved, it would seem, taking not deny such knowledge, and does not deny off one or both of the chains and readjustthe only logical conclusion to be drawn from ing them, or of adopting some other means the situation shown to exist, namely, that to secure the foot of the mast; and if he the plaintiff himself removed the chain. But was in charge of the work, as the plaintiff's this was a question for the jury. evidence tended to show, it might well be found that he knew about it from the first. He knew and comprehended the danger created by one chain's being off, for he says he saw it and warned the plaintiff. But it is argued that the plaintiff did not nor would heed the warning, but stayed and argued with Crowley, whereas if he had not delayed and tried to hitch to the chain, as Crowley says he did, but had hasted out as he might, he would have escaped injury. But the plaintiff denies pretty much all Crowley says about it, denies that he stayed and argued and tried to hitch on, but says that he dropped the block and started, and tried to get out but had not time. Crowley says that, when McWhirt came back from the guy, one of the side chains was off. McWhirt says he came back from the guy "like enough" 15 minutes before the accident. Crowley says he came back from the engine house not more than five minutes before the accident, and found one of the side chains off. He says that the chains were hitched too high on the mast, and were getting so tight that it looked to him as though they would break, and that he told the plaintiff he better lower the mast; that thereupon the plaintiff stopped the engine, and said he would get a pair of tackle blocks and take off one of the side chains and hitch back to another chain, which he said was all right, as they put it on the day before to draw the stick up by; that when the plaintiff went for the blocks he himself went to the engine house and told the engineer not to start the engine till he got orders, and then to be very careful to start slow; that he went back to the dump in Now when we remember, as said in the opinion, that the plaintiff's evidence tended to show that the business of raising and lowering derricks was not within the scope of his employment, nor contemplated when he entered into it, but was a thing that he knew nothing about, and so informed the defendants, that he did not know how to raise a [Ed. Note.-For other cases, see Sales, Cent. Dig. § 214; Dec. Dig. § 79.* nor appreciate the dangers connected there- | 2. SALES (§ 79*)-CONTRACT-CONSTRUCTIONwith, and had not sufficient experience, as "F. O. B." the defendants well knew, to enable him to sale of hay stated, "Sold my hay to A. for $10.50 Where a writing evidencing a contract for determine when the foot of the mast was per ton, f. o. b.," the letters "f. o. b.," without sufficiently secured, and when we remem-designation of place, meant delivery on board at ber that his evidence further tended to show the usual place of shipping such freight from that locality. that in and about the work in hand he was acting merely as a helper under the personal supervision and direction of Crowley, who was present, taking charge of the work and giving orders, which he and the others were obeying-it is manifest that whether he exercised the requisite care and haste to protect himself from injury was a question for the jury. It is further said that, according to the plaintiff's own story, he was not doing what Crowley told him to do, for he says that Crowley told him to hitch the tackle blocks to a chain at the foot of the mast, whereas he was trying to hitch them to a chain about midway of the mast, which was not the chain he says Crowley told him to hitch to. But that cannot be said; for, though there is some uncertainty in the plaintiff's testimony on this point, yet it is capable of being construed to mean that that was the chain to which he says Crowley told him to hitch, and the uncertainty arises largely from his saying that he went in under the mast two or three feet from the foot of it, whereas he was, in fact, in some 12 or 15 feet from the foot. But, the more he was pressed as to the distance, the more uncertain he was, but he says he was in where Crowley told him to go, and all agree, he with the rest, that he was in at the big stone. So, whether he was doing what he says Crowley told him to do was also a question for the jury. The defendants make some suggestions as to the law of the case. But, as it is consid ered that there is nothing in the case as now presented that alters the legal aspect of it as before presented, the law then declared and applied must govern now. The defendants' proposition that there is no evidence of actionable negligence on their part not being sustained, the judgment must stand affirmed; and it is so ordered. (83 Vt. 334) ADAMS v. JANES. For other definitions, see Words and Phrases, vol. 3, p. 2636; vol. 8, p. 7659.] 3. SALES (§ 355*)-ACTION FOR PRICE-PLEADING VARIANCE. hay, where plaintiff alleged that it was to be Dig. §§ 1025-1043; Dec. Dig. § 355.*] 4. TRIAL (8 103*)-RECEPTION OF EVIDENCE- In an action on a contract for the sale of hay, an exception stated that it was an issue whether the signature to the memorandum of denied its genuineness and offered B., a witness the contract was genuine, and that defendant in support of his contention. The exception further stated that the witness was shown the memorandum, and was asked if in his opinion the signature was in the handwriting of defendant; that plaintiff's counsel objected; and that no offer being made, and it not appearing what timony. Held, that it was not necessary to the answer would be, the court excluded the tesstate in terms what answer was expected in or der to render the exception available, but that defendant was entitled to have the evidence received on what had appeared, and its exclusion was error. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 256; Dec. Dig. § 103.*] Exceptions from Franklin County Court; George M. Powers, Judge. Action by E. P. Adams against William Janes. Verdict and judgment for plaintiff, and defendant excepted, and also brought his petition for new trial to the Supreme Court. Reversed and remanded. Petition for new trial dismissed. Argued before ROWELL, C. J., and MUNSON, WATSON, and HASELTON, JJ. Furman & Webster, for plaintiff. C. G Austin & Sons, for defendant. MUNSON, J. The declaration contains (Supreme Court of Vermont. Franklin. March three counts. The first alleges that defend 28, 1910.) ant sold the plaintiff 90 tons of hay at $10.1. EVIDENCE (8 458*)-PAROL EVIDENCE-AP-50 a ton, to be pressed and delivered by the PLICATION OF WRITING TO FACTS. In an action on a contract for sale of hay, evidenced by a writing stating, "Sold my hay to A. for $10.50 per ton, f. o. b.," evidence of the location of the hay with reference to the railroad stations was properly received, as this was not evidence explaining the meaning of the letters "f. o. b.," but only showing their application to the subject-matter. [Ed. Note. For other cases, see Evidence, Cent. Dig. § 2083; Dec. Dig. § 458.*] defendant in the cars at Swanton within a reasonable time, and to be paid for on delivery. The second count sets up a sale made in writing, says nothing about the hay being pressed, and alleges that the defendant was to deliver it "on board the cars when thereunto requested, to wit, at Swanton aforesaid," and that it was to be paid for on delivery. The third count is like the first, ex For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes livered in any other form, for its loading and transportation without pressing is impracticable, and the party required to load it is necessarily required to press it. The language is to be construed with reference to the settled and known requirements of the freighting business. cept that it alleges that part of the hay was | hicles of a common carrier, as the term “f. to be delivered at Swanton, part at Swanton o. b." plainly indicates, it could not be deJunction in the town of Swanton, and part at Oakland in the town of Georgia. The plaintiff offered in evidence a writing dated October 8, 1906, apparently signed by the defendant, and reading as follows: "Sold my hay to E. P. Adams for $10.50 per ton, f. o. b., all to be bright sweet herd's grass, about 90 tons." The defendant objected to its admission because it did not contain the essential elements of a contract, and because it did not contain the essential elements of the contract set out in the declaration. The writing was admitted, and the case states that it was the only writing made in connection with the sale. The exceptions state that it was an issue on the trial whether the signature to the memorandum was genuine, and that the defendant denied its genuineness on the stand, and offered one Burton as a witness in support of his contention. By a continuation of the same sentence the defendant is spoken of as offering Burton "as a person familiar The first point is whether the writing sat- with the defendant's handwriting, who had isfies the statute of frauds. The statute re- known and done business with the defendant quires that "some note or memorandum of quite extensively for 16 or 17 years; that the bargain" be made in writing. This writ- he had seen him write a great deal; was ing must contain such a description of the acquainted with his handwriting and had contract as will obviate the necessity of re- seen it every week during said time." It is sorting to parol evidence to supply any term not to be supposed that defendant's counsel of the contract essential to its validity. Ide stated all this in offering the witness, and v. Stanton, 15 Vt. 685, 40 Am. Dec. 698; it is sufficiently apparent that it is a recital Buck v. Pickwell, 27 Vt. 157, 167. The de- of the testimony obtained from the witness fendant's brief states this rule, and argues preparatory to his being inquired of regardin general terms that the memorandum in ing the signature. The exceptions then state question does not contain all the essential that the witness was shown the memoranelements of a valid contract, but does not dum and was asked whether in his opinion specify any particular in which it is claimed the words "Wm. Janes" were in the handto fall short of the requirement. The only writing of the defendant, that plaintiff's feature of the writing mentioned is that re- counsel objected to the question, and that, garding the delivery, and all that is said of "no offer being made, and it not appearing this is that the abbreviation "f. o. b." is a what the answer would be," the court exfamiliar and common term used in business cluded the testimony. and understood by everybody to mean "free on board." The only objection suggested by this will be covered by our consideration of an exception to the evidence. Evidence of the location of the hay with reference to the railroad stations in the vicinity was properly received. Defendant argues in support of his exception that the terms of the agreement were not subject to explanation. It is true that the court received the evidence as explanatory of the meaning of f. o. b., but this was evidently an inaccurate statement of what the court had in mind. The testimony introduced was not evidence explaining the meaning of the letters, but evidence showing their application to the subject-matter. We take it that f. o. b., without designation of place, means delivered on board at the usual place of shipping such freight from that locality. So extrinsic evidence to show the place was adding nothing to the terms of the writing. It clearly appears from the above statement that the defendant denied the signature, that the issue was whether he signed it or not, and that the testimony was being offered to support the defendant's contention. It appeared from this that the question was asked for the purpose, and in the expectation, of securing an opinion that it was not the defendant's signature; and this appeared as plainly as if counsel had said, "we offer to show, and expect the answer will be, that it is not his signature." The later statement that no offer was made, and that it did not appear what the answer would be, must be construed in connection with what is before stated, and when so considered it is seen to mean that no offer or statement was made other than such as may have appeared from the course and nature of the examination. So the question is simply whether it was necessary in such a situation to state in terms what answer was expected in The defendant insists that there was a order to render the exception available. To material variance between the contract al- require this would carry the rule quite beleged in the declaration and the contract yond the reason of it. The statement someevidenced by the memorandum, in that the times broadly made that it is not error to latter contained no stipulation that the hay exclude a question not accompanied by an was to be pressed. It is true that the memo- offer must be considered in connection with randum contains no such stipulation, but we the circumstances in which the offer was think it is necessarily implied from its made. The defendant was entitled to have On Reargument. ed up to that point, and its exclusion was error. The court gave careful consideration to Judgment reversed, and cause remanded. the points suggested in the motion for rearThe petition for a new trial is not sus-gument before arriving at the decision contained, and is dismissed, with costs. tained in the former rescript. WATSON, J., concurs in the result. The motion for reargument is therefore denied. ATLANTIC MILLS v. SUPERIOR COURT. (Supreme Court of Rhode Island. March 28, 1910. On Reargument, April 4, 1910.) 1. PLEADING (§ 236*)-AMENDMENT-DISCRETION OF COURT. (79 N. J. L. 227) JOHNSON V. GRAND LODGE OF A. O. U. W. OF NEW JERSEY. (Supreme Court of New Jersey. March 16, 1910.) INSURANCE (§ 762*)—Mutual Benefit INSURANCE-SUSPENSION-REINSTATEMENT. Under a rule of a fraternal order providing Under Gen. Laws 1909, c. 285, § 4 (Court that for the nonpayment of an assessment a and Practice Act 1905, § 261), providing that member shall stand suspended from all the the court may permit either of the parties to rights, benefits, and privileges arising from memamend the pleadings, in the discretion of the bership, till he has been reinstated, and authorcourt or in pursuance of general rules, the su-izing reinstatement within three months from the perior court has authority to permit plaintiff suspension, on the condition that all assessments to amend his declaration before the entry of shall be paid; that, after 30 days, a certificate judgment in the case upon motion. of good health shall be furnished by the applicant for reinstatement at the time the assessments are paid; and that the financier shall report to the lodge at its next stated meeting, at which a vote shall be taken, and, if a majority be cast for reinstatement, the member shall be reinstated and his beneficiary certificate held in full force, where a member suspended for nonpayment of an assessment paid within 30 days, he was entitled to reinstatement as of right without a vote of the order. [Ed. Note.-For other cases, see Pleading, Cent. Dig. 601; Dec. Dig. § 236.*] 2 CERTIORARI (§ 17*) PROCEEDINGS OF COURTS-AMENDMENT OF PLEADINGS. Where the superior court allowed plaintiff to amend its declaration, and defendant seeks to raise the question whether the court had jurisdiction to allow an amendment in matter of substance, after limitations had run, as the question can be determined only upon comparison of the original declaration with the amended declaration, a writ of certiorari will be granted on petition of defendant. [Ed. Note. For other cases, see Certiorari, Dec. Dig. § 17.*] [Ed. Note. For other cases, see Insurance, Cent. Dig. § 1922; Dec. Dig. § 762.*] Action by Mary E. Johnson against the Grand Lodge of the Ancient Order of United Workmen of New Jersey. Heard on deJudgment for Petition for certiorari by Atlantic Mills to murrer to the declaration. the Superior Court. Writ granted. plaintiff on the demurrer. Argued June term 1909, before GUMComstock & Canning and Patrick P. Cur-MERE, C. J., and GARRISON and PARKran, for petitioner. James J. McCabe, for ER, JJ. respondent. PER CURIAM. A majority of the court is of the opinion that the superior court had authority in its discretion to permit the plaintiff in the case of Kolinova v. Atlantic Mills, to amend his declaration under Court and Practice Act 1905, § 261, now Gen. Laws 1909, c. 285, § 4, before the entry of judgment in the case, upon motion. But inasmuch as the question is also raised as to whether the superior court had jurisdiction to allow an amendment to the declaration in matter of substance, after the period of the statute of limitations had elapsed, this question cannot be determined, except upon comparison of the original declaration with the amended declaration. McDermott & Enright, for plaintiff. J. I. Blair Reiley and William A. Barkalow, for demurrants. GUMMERE, C. J. The plaintiff sues upon a death benefit certificate issued by the defendant organization to her husband, Austin P. Johnson, who was a member thereof. The certificate contained the express condition that Johnson should in every particular while a member of the order comply with all its laws, rules, and requirements. The defendant pleaded in bar of the action that among the rules of the order, and which were a part of the contract with the plaintiff's husband, was one relating to assessments, which provided as follows: "Upon the first legal day of every month an asTherefore the petition of said Atlantic sessment shall be levied upon each member Mills for a writ of certiorari should be grant-borne upon the roll at the date upon which ed, and the writ will issue accordingly, in order that this court may be fully advised as to the nature and extent of the amendment. The case will stand for hearing upon the question above suggested. the assessment is made. The assessments shall be paid by each member to the financier of his lodge on or before the 28th day of the month in which the assessment is levied, and in default of such payment, and For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes 75 A.-51 without any action of the lodge or any officer, he shall thereafter stand suspended from all the rights, benefits and privileges arising from membership in the order until he has been reinstated in the manner provided in these laws." The plea then contained an averment that upon the first legal day of the month of January, 1908, an assessment was levied upon the plaintiff's husband, which was required to be paid in accordance with the above rules or regulations to the financier of his lodge on or before the 28th day of January, 1908, and that he did not, nor did any one else for him, on or before that day pay the financier of his lodge, or the defendant, the amount of this assessment; that, by reason thereof, he was suspended from, and after the 28th day of January, 1908, and was deprived by reason of such suspension from all the rights, benefits, and privileges arising from membership in the order; that prior to his death he was not reinstated to such rights, benefits, and privileges in the manner provided in and by the laws of the order; and that his beneficiary certificate thereby became null and void, and the right of the plaintiff after his death to participate in the beneficiary fund was forever forfeited and ceased. ing the time of the alleged suspension, including all pending assessments, and that the defendant did accept the payment of the said sum and sums, and did retain the same throughout the lifetime of the said member. To this replication the defendant demurred. It is to be observed that the rule of the order which the defendants set up as a bar to the plaintiff's action does not necessarily render void the death benefit certificate issued to a member. It does not operate to terminate the member's relations with the order, but merely suspends him from all the rights and privileges arising from his membership until he shall have been reinstated. Among those rights is that evidenced by the benefit certificate. The effect of his reinstatement is to restore him to all the rights and privileges from which he has been suspended; to place him in the same situation he would have occupied if he had not defaulted in the payment of his assessment; to have his benefit certificate recognized by the order as a valid obligation against it. Do the facts set up in the plaintiff's replication show that under the rule recited therein the suspension of the defendant had been terminated, and he thereby restored to the rights and privileges of membership before his death? The contention of the defendant, and the ground of its demurrer, is that by the third clause of the rule of its order appealed to by the plaintiff in her replication the right to reinstatement of a member who has been suspended for the nonpayment of an assessment does not become absolute upon his payment of all past due assessments, but is in all cases dependent upon a majority vote of the members of his lodge. This does not seem to us to be the true meaning of the rule. As we read it, the third clause thereof, requiring a report of the "financier" to the lodge, and a vote of the members upon the question of the reinstatement of the delinquent, only has application when the delinquent delays for more than 30 days after his suspension in making payment of the assessments which have been levied during his suspension, and those which were pending at the time thereof. When he pays those assessments within 30 days after the date of his suspension, he is entitled to be imme diately restored to all the rights and privileges of membership, not as a matter of grace, but of right. If he pays them after the expiration of the 30 days, and within 3 months after the date of his suspension, then his right to reinstatement is conditioned upon his furnishing to his lodge a certificate of good health, and the casting by the members of the lodge of a majority vote in favor of his restoration to membership. To this plea the plaintiff replied that she ought not to be barred by the matter set up therein, for the reason that the rules of the order in force at the time of the transaction mentioned in the plea provided that "any suspended member who has forfeited all his rights by reason of nonpayment of assessments for the beneficiary and guarantee funds may be reinstated, if he be living, at any time within a period of three months from the date of such suspension upon the following condition, and none other; that is to say: (1) All assessments that have been made during the time of suspension shall be paid, including pending assessments. (2) After thirty days a certificate of good health shall be furnished by applicant for reinstatement at the time the assessments are paid in the manner and upon the blank prescribed by officers of the order. (3) The financier shall report the same to the lodge at its next stated meeting, a vote of the lodge shall be taken by ballot, and if a majority of the votes be cast in favor of reinstatement, the member shall be reinstated and his beneficiary certificate held as in full force, and a record of the reinstatement shall be made upon the minutes of the lodge." The replication then contains an averment that the plaintiff's husband did in his life time and within 30 days from the date of his alleged suspension-that is, within 30 days after the 28th day of January, 1908pay the defendant the amount of the assessment mentioned in the plea, and alleged to According to the averment in the replicahave been levied upon him on the first le- tion, plaintiff's decedent made payment withgal day of the month of January, 1908, to- in 30 days after the 28th day of January, gether with the full amount of all assess- 1908, of the amount of the assessment set |