in a telegram of date April 18, 1901, from the appellant to the appellee, notifying the latter that in a few days one M. J. Lawlor would arrive, clothed with full authority to act for the appellant in the, matter concerning which they had been negotiating. Accordingly, Lawler met the appellee and Fulton in Denver, and the three then went to Idaho to examine the ground; and, after spending some time in such examination, Lawlor, according to the only evidence in the case, said to Blood and Fulton:

"There is no use prospecting any further; I am satisfied, and now we will go out to Boise and I will make my report to Mr. Ferguson."

He did so, and the three remained in Boise to hear from the appellant. On the 26th day of June, 1901, Lawlor received a telegram from the appellant stating that he would send $1,000 that day, $9,000 in 20 days, $7,000 in 30 days, and the balance in four months, and asking where he could buy machinery. This telegram was shown by Lawlor to the appellee, and $1,000 paid to the latter and Fulton. Lawlor then returned to Shenandoah, Pa., where the appellant resided, and on July 18, 1901, the appellee received from Lawlor a telegram from Shenandoah, Pa., saying:

Want

"Ferguson cannot leave until Tuesday or go farther than Buffalo. you to meet us Iroquois Hotel Tuesday evening. Notify Fulton other matter arranged, answer."

And two days later the appellee received from Lawlor another telegram sent from Shenandoah, reading:

"Meet us in Buffalo as requested in former message to sign papers. Have money for both payments, answer."

In response to these telegrams, the appellee went to Buffalo, where he met the appellant in the evening of July 25th, when and where they talked over the matter for some time. The next morning appellant, appellee, and Lawlor met and again went over the matter, when the appellant told the appellee that he could not make the payments as stated in the telegram of June 26th, but that in addition to the $1,000 already paid he would pay $9,000 in 20 days, $7,000 in 30 days, $10,000 in 3 months, and the balance of $13,000 August 15, 1902. The appellee consented to this, and thereupon the appellant dictated the terms of the agreement to be formerly prepared by Lawlor and appellant, saying to his representative, Lawlor:

"You people are competent to draw up this agreement. Have Mr. Blood sign it and acknowledge it, and forward it to my home in Shenandoah, Pennsylvania, and I will sign it and acknowledge it there."

Accordingly, the agreement was drawn up by Lawlor, and signed and acknowledged by the appellee and delivered to Lawlor, who said that he would send it to the appellant for execution-at the same time giving to the appellee a compared copy of the agreement. Later Lawlor went to Idaho, and, with the appellee, examined the county records to ascertain the title of the property that was to be transferred, and, after having some defects cured, expressed himself as satisfied with the title, and thereupon delivered to the appellee two checks signed by the appellant, one for $9,000 and the other for $7,000. All of the

other payments provided for by the contract were subsequently made by the appellant except the last, on which he also paid $2,000, leaving a balance unpaid of $11,000.

Blood and Fulton built the dredge provided for by the contract, equipped it, and commenced working the property, the appellant being represented on the ground by Lawlor, and personally spending some time there in the summer of 1902, watching the operations, and making suggestions as to equipment and the place to work. At that time he had paid $37,000 under the contract, and there discussed with the appellee the last payment to be made by him, saying that he was not certain that he could make that payment promptly, but would advise the appellee as soon as he returned to his home. At no time did he intimate that he had not signed the written agreement, and the uncontradicted testimony of the appellee is to the effect that both the appellant, and Lawlor told him that appellant had signed it, and, furthermore, after notice to him to produce the original instrument, the appellant failed to do so at the trial. Under such circumstances he should not be heard to say that the contract was void under the Idaho statute of frauds (Rev. St. 1887) the provisions of which are as follows:

"Sec. 6007. No estate or interest in real property, other than for leases for a term not exceeding one year, nor any trust or power over or concerning it, or in any manner relating thereto, can be created, granted, assigned, surrendered, or declared, otherwise than by operation of law, or a conveyance or other instrument in writing, subscribed by the party creating, granting, assigning, surrendering or declaring the same, or by his lawful agent thereunto authorized by writing.

"Sec. 6008. The preceding section must not be construed to affect the power of a testator in the disposition of his real property by a last will and testament, nor to prevent any trust from arising or being extinguished by implication or operation of law, nor to abridge the power of any court to compel the specific performance of an agreement, in case of part performance thereof.

"Sec. 6009. In the following cases the agreement is invalid, unless the same or some note or memorandum thereof be in writing and subscribed by the party charged, or by his agent. Evidence, therefore, of the agreement cannot be received without the writing or secondary evidence of its contents: (5) An agreement for the leasing for a longer period than one year, or for the sale of real property, or of an interest therein, and such agreement, if made by an agent of the party sought to be charged, is invalid, unless the authority of the agent be in writing, subscribed by the party sought to be charged."

There are several reasons why this contention on the part of the appellant is wholly untenable. In the first place, in view of the appellant's statement to the appellee at Buffalo that he would sign the contract upon its receipt; that the written contract was sent to him by his agent, Lawlor; that he proceeded under the contract as though it had been signed by all the parties thereto, making payments under it, going into possession of the property under it, participating in the development of the property, and conducting himself in all respects as though it was an executed contract, thus leading the appellee to believe that he had signed it, as he stated he would; and considering the further fact that he failed to produce the original at the trial when notified to do so we think the conclusion inevitable, in the absence of any evidence to the contrary, that he did in fact sign the paper.

In the second place, if it be conceded that the statutes above quoted require that such contracts as are here involved be signed by both grantor and grantee, the appellant cannot avail himself of such requirement, in view of the facts here shown, because of section 3225 of the Revised Statutes of 1887 of Idaho, which provides that:

"Where a contract, which is required by law to be in writing, is prevented from being put into writing by the fraud of a party thereto, any other party who is by such fraud led to believe that it is in writing, and acts upon such belief to his prejudice, may enforce it against the fraudulent party."

Certainly the appellant, by his conduct, led the appellee to believe that he had signed the contract, and to purchase claims on which he had only options, and to otherwise expend money and time in carrying out the provisions of the agreement. Under such circumstances, to permit the appellant to repudiate the contract on the ground that he did not in fact affix his signature to it, would manifestly be to permit him to practice fraud and deception upon the appellee. Moreover, part performance of a contract takes it out of the statute of frauds. In this case not only was the contract partly, but it was almost completely, performed by the appellant. 26 Enc. of Law, pp. 50-52; Townsend v. Vanderwerker, 160 U. S. 171, 16 Sup. Ct. 258, 40 L. Ed. 383; Brown v. Sutton, 129 U. S. 238, 9 Sup. Ct. 273, 32 L. Ed. 664; Riggles v. Erney, 154 U. S. 244, 14 Sup. Ct. 1083, 38 L. Ed. 976; Deeds v. Stephens, 69 Pac. 534, 8 Idaho, 514; Fleming v. Backer (Idaho) 85 Pac. 1092; Barton v. Dunlap, 66 Pac. 832, 8 Idaho, 82; Francis v. Green, 65 Pac. 362, 7 Idaho, 668; Male v. Leflang, 63 Pac. 108, 7 Idaho, 348.

Where one contracts to convey real estate to another upon the payment of the agreed price, retaining the title until payment is fully made, it is not very important, in our opinion, what the security so retained is called, whether a trust, a vendor's lien, an equitable mortgage, an equitable security, or any other kind of a lien. Like the Supreme Court of Tennessee:

"We are not able to draw any sensible distinction between the cases of a legal title conveyed to secure the payment of a debt, and a legal title retained to secure the payment of a debt. In both cases, courts of chancery consider the estate only as security for the payment of the debt, upon a discharge of which the debtor is entitled to a conveyance in one instance, and a reconveyance in the other." Graham v. McCampbell, 19 Tenn. 52, 33 Am. Dec.

126.

Where the title is retained by the seller as security for the payment. of the debt, the security is, in this country, very generally regarded as possessing all the essential features of a mortgage, and the vendor as standing for all practical purposes as mortgagee in relation to the vendee. See 29 Cyc., pp. 770, 771, and notes; Hardin v. Boyd, 113 U. S. 764, 5 Sup. Ct. 771, 28 L. Ed. 1141; Lewis v. Hawkins, 90 U. S. 126, 23 L. Ed. 113; Wheeling Bridge & T. Ry. Co. v. Reymann Brewing Co., 90 Fed. 189, 32 C. C. A. 571; Seattle L. S. & E. Ry. Co. v. Union Trust Co., 79 Fed. 179, 24 C. C. A. 512; White v. Ewing, 69 Fed. 452, 16 C. C. A. 296. And as such, he seems to be regarded by statute in Idaho. Rev. St. Idaho 1887, §§ 3440, 4520, and 4521. So regarded, there can be no doubt of the power of the court to enter a deficiency

judgment, where, as in the present case, the sale of the vendee's interest in the property fails to bring enough to satisfy his debt. Authorities

supra.

The judgment is affirmed.

PENNSYLVANIA R. CO. v. GARCIA,

(Circuit Court of Appeals, Second Circuit. March 5, 1907.)

No. 140.

1. APPEAL-ADMISSION OF EVIDENCE-PREJUDICE.

Where in an action for injuries to a servant the jury were correctly charged as to the acts and omissions of defendant on which fault might be predicated, the failure to post rules not being among them, defendant was not prejudiced by evidence that witness had never seen or read any rules providing for the inspection or repair of tools in the tool shop, objected to because there was no charge in the complaint covering such question.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, 88 4178-4184.]

2. MASTER AND SERVANT-INJURIES TO SERVANT-CONTRIBUTORY NEGLIGENCE. Plaintiff, an ignorant laborer in a railroad shop, had been employed by defendant for nine years to do low-grade work. He had not been employed for flange work to any great extent, but was ordered by his foreman to hammer the head of a defective fuller in making a flange on a sheet of hot iron, the fuller being held by the foreman. Plaintiff saw nothing dangerous about the fuller, and proceeded to strike the same, when a piece of steel flew from the head thereof into plaintiff's eye, causing its loss. Held, that plaintiff was not guilty of contributory negligence as a matter of law.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 1098-1105.]

3. SAME-FELLOW SERVANT.

Plaintiff's foreman had been informed prior to the accident that a fuller head by which plaintiff was injured was defective and dangerous, but with knowledge of such defect held the head against a hot iron plate and directed plaintiff to strike the same for the purpose of making a flange, resulting in plaintiff's injury by a piece of steel flying from the head. It also appeared that defendant's system for repair of tools was too cumbersome for practical operation, the servant being required to get an order therefor and have the same visaed by at least two different foremen before they could be repaired. Held, that the negligence of plaintiff's foreman acting as his fellow servant in using such dangerous tool was not the sole cause of the accident, and was therefore not sufficient to prevent a recovery.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 515–534.]

In Error to the Circuit Court of the United States for the Eastern District of New York.

On writ of error to the Circuit Court for the Eastern District of New York to review a judgment entered upon the verdict of a jury in favor of the plaintiff for $1,500 damages for the loss of an eye while in the employ of the defendant in its shops at Jersey City, N. J.

H. G. Ward, Geo. H. Emerson, and Robinson, Biddle & Ward, for plaintiff in error.

Henry F. Dossenheim and Theodore Prince, for defendant in error. Before LACOMBE, TOWNSEND, and COXE, Circuit Judges.

COXE, Circuit Judge. At the date of the accident-February 6, 1900-the plaintiff was in the defendant's employ as boilermaker's assistant. At that time Rooney, the gang boss, Finnigan, a boilermaker, and the plaintiff were engaged in turning the flange around a square opening in a sheet of hot iron. Finnigan was holding the sheet on an iron block, Rooney was holding a heavy steel hammer, called a "fuller," against the heated iron sheet and the plaintiff was striking the fuller with a button-set hammer. While so engaged a spicula of steel flew off the flat end or head of the fuller into the plaintiff's eye, causing its loss. The testimony is undisputed that the head of the fuller was worn down and cracked on its edges, the ragged portions extending around the four sides and being from an eighth of an inch to a quarter of an inch apart. Complaint as to the dangerous condition of the fuller had frequently been made to the gang boss, Rooney.

The first assignment of error argued is based upon the ruling of the trial court in permitting the witness Finnigan to answer the following question:

"Were there any rules posted for the inspection or repair of tools in the tool shop?"

The question was objected to upon the sole ground—

"That there is no charge in the complaint that covers this question."

The answer was:

"I never read any. I never saw any rules there posted."

It might be argued with considerable plausibility that the testimony was admissible under the pleadings and that the objection was not comprehensive enough to present the question whether the testimony was incompetent or immaterial, but we prefer to rest our decision upon the broader ground that the answer to the question was in no way prejudicial to the defendant, for the reason that the jury were correctly instructed as to the acts and omissions of the defendant of which fault might be predicated, the failure to post rules not being among them. In deciding defendant's motion to dismiss the complaint the court said:

"I shall not submit the question to the jury whether the defendant was negligent in not maintaining a rule; but of course I have allowed that evidence to come in so that the jury should know just what had been done or had not been done, and thereby have been able to determine whether the system for the protection of the employés with regard to the use of this tool was in accordance with the duty which rested upon it."

Subsequently the court refused the following request of the plain

tiff:

"Eighth. In determining the question, therefore, of whether or not the defendant was negligent, the jury may take into consideration the question of whether or not the plaintiff should have made rules for the inspection of tools