by appellant and by the appellee will be suf- above mentioned] shall be absolved and reficient: leased." The appellant is a manufacturer of fertilizer, and the appellee (as it must be taken upon the issues made in the cause before us) was appellant's agent for its sale. The contract of agency provided that the compensation of appellee should be $2 per ton on all sales of fertilizer by him, the proceeds of sale of which should be collected by appellee or appellant and received by appellant, and an additional compensation of a "bonus" of $500 if and when the appellee should sell, collect, and settle with appellant for as much as 1,000 tons of the fertilizer. The appellee, in accordance with the contract, was to indorse farmers' notes taken for all sales of fertilizer on time, thereby making itself liable thereon to appellant as surety for the payment of such notes. Accordingly appellee indorsed all of such notes, so taken, aggregating quite a large amount. The particular notes on which appellee was relieved from liability by the decree complained of aggregated, however, only $2,190.85; and under such contract appellee gave a bond to appellants, with Wm. G. Smith and Mrs. Nannie V. Smith as sureties, covering the amount of certain prices of all fertilizer shipped to appellee, conditioned for the faithful performance of the duties of the latter as agent, etc. The appellant was entitled to the custody and control, under the provisions of the contract aforesaid, of the farmers' notes aforesaid which were uncollected on October 6, 1910, because the appellee then, without the consent of appellant, ceased all attention to the business of said agency, and accepted other employment in the state of Florida from that date until the latter part of May, 1911. Further At the time of such breach of contract by appellee, although 1,176% tons of fertilizer had been sold by appellee, as much as 1,000 tons had not been collected for by it, or by it and appellant. The decree complained of contains the following adjudications, which are drawn in question, namely: (a) It confirmed the last report of the commissioner aforesaid (which was the final result of his several reports), and decreed that the appellee pay over unto the appellant the sum of $1,313.23, with interest thereon at the legal rate from July 15, 1910, "the same being the amount found due the said plaintiff [appellant] by the said defendant [appellee] after allowance of all proper credits." (b) It further decreed that the appellee be "absolved and released * from further liability as indorser" on said notes, and that upon the payment by appellee to appellant of said sum of $1,313.23, with interest as aforesaid, "both the said defendant [appellee] and its surety upon a [1] Appellant complains of the provisions of said decree referred to in subparagraph (b) next above, and urges that the evidence returned with said commissioner's reports is insufficient to sustain the decree in this particular, in that it does not show such laches or other conduct on the part of appellant as would release the appellee from his liability as indorser aforesaid. This is the sole assignment of error by appellant. We will first consider this assignment of error. 1. Whether there was such conduct amounting to such failure on the part of the appellant to perform its duties under said contract as in equity relieved the appellee as indorser of said notes from liability to the appellant (plaintiff in the court below), on the principle that he who asks equity must do equity, depended upon the conduct of the appellant as shown by the evidence before the commissioner. In his first report the commissioner reached the conclusion from the evidence before him that the appellee was "not liable in any way [as indorser or otherwise] to the plaintiff [appellant] on account of said notes," and so reported. As above stated, there was no exception to that report by the appellant, nor to any of the said commissioner's reports. Under the well-settled rule on the subject, the evidence in the cause cannot be looked to by us to ascertain whether the conclusion aforesaid of the commissioner was sustained or not sustained by the evidence. On the face of the reports aforesaid no error is apparent in such conclusion. No exception having been taken by appellant in the court below, as aforesaid, it is too late for it to raise the objection in this court on appeal. Morrison v. Householder, 79 Va. 627; Hansucker v. Walker, 76 Va. 753; White's Ex'r v. Johnson, 2 Munf. 285. The conclusion of the commissioner and the adjudication of the court, by the decree complained of based thereon, aforesaid, were therefore final and conclusive upon appellant and are not open to review in this court. Hence we cannot sustain the assignment of error of appellant. The cross-assignments of error of appellee involve two questions only, which will be considered in their order as stated below, which were raised by exceptions by appellee to the two commissioner's reports aforesaid first filed. [2] 2. Were the commissioner's reports and the decree aforesaid thereon correct in allowing the appellee its compensation of $2 per ton only on the proceeds of fertilizer sales collected by appellee and appellant and received by appellant, and not on the gross sales by appellee? The commissioner reports sales by appellee of 1,177% tons of fertilizer, and allowed ap tion for the promise of appellant to pay said bonus. That it was material is admitted by appellee by its contention that its services, even after May, 1911, were valuable to appellant, and would have been effective to the extent of collecting approximately all of the unpaid farmers' notes, if it had been permitted, after its said breach of contract, to undertake that task. And the promise by appellant aforesaid was indeed expressly conditioned, not only upon the sale, but the collection by appellee of the proceeds of sales of as much as 1,000 tons of fertilizer, which was in fact the condition that appellee should give its personal attention to the collection of the proceeds of that amount of such sales. Hence the breach by appellee of the contract in the particular aforesaid abrogated the promise aforesaid in respect to said bonus. Therefore there was no error in the commissioner's report, or in the decree complained of, because of the failure to allow appellee said bonus. $2 per ton on all proceeds of such sales | This was a material part of the considerawhich were collected by appellant and appellee and received by appellant, and which will be received when appellee shall have paid to appellant the $1,313.23 balance due to the latter above mentioned. The decree complained of by appellee made the same allowance. Appellee claims, however, that it should have been allowed said $2 per ton on all of its sales of 1,177% tons of fertilizer, regardless of the fact that some of the farmers' notes therefor were never collected. Appellee makes this claim on the ground that appellant withdrew certain of the farmers' notes, among which were those uncollected, from the hands of appellee, and also otherwise prevented appellee from collecting such notes by placing them in the hands of an attorney for appellant, and notifying the farmers to pay the notes only to such attorney or to appellant direct; and appellee contends that this was a breach of contract by appellant, and that but for such breach of contract by appellant appellee would have collected approximately (sic) all of such notes. As above noted, one of the facts in the case is that under the provisions of the contract aforesaid the appellant was entitled to the custody and control of the farmers' notes aforesaid, which were uncollected on October 6, 1910, because the appellee, without the consent of the appellant, then ceased all attention to the business of said agency, and accepted other employment in the state of Florida from that date until the latter part of the next May, which was a breach of said contract by appellee. This fact is decisive of the question under conIn view of Code 1904, § 3272, providing that on a demurrer the court shall not regard sideration, and necessarily leads to the conany defect, unless something essential has been clusion that the withdrawal of said notes omitted, so that judgment cannot be rendered. aforesaid and the undertaking by appellant declaration in action for injuries at railroad of the collection of such notes to the subse-crossing, which gave the date and place of the accident and such particulars as plainly inquent exclusion of the appellee in the mat- formed defendant of every fact relied on by ter after May, 1911, was not a breach of plaintiff which was essential to enable it to said contract on the part of appellant. defend, and which charged negligence in sevHence there was no error in the commission- clear chance doctrine, was sufficient and not eral particulars and negligence under the last er's report, or in the decree complained of, demurrable. on the point in question. [3] 3. Were the commissioner's reports and the decree complained of thereon correct in failing allow the appellee the $500 bonus aforesaid? For the foregoing reasons, we are of opinion to affirm the decree complained of, both as to the assignment of error by the appellant and the cross-assignments of error by the appellee. Affirmed (122 Va. 302) NORFOLK SOUTHERN R. CO. v. SMITH. (Supreme Court of Appeals of Virginia. Jan. 24, 1918.) 1. RAILROADS 344 (1)—DEMURRER WHEN 2. RAILROADS 351(3)- CROSSING ACCIDENTS- BURDEN OF PROOF-CONTRIBUTORY NEGLIGENCE-INSTRUCTIONS. In action for injuries to traveler at railroad grade crossing, instruction that burden of proving contributory negligence is upon defendant should have concluded, "unless such contributory negligence was disclosed by plaintiff's evidence, or could fairly be inferred from the circumstances." By the terms of the contract aforesaid, as shown by the evidence in this cause, the bonus in question was not agreed to be paid unless and until the appellee should sell, col-3. lect, and settle with appellant for as much as 1,000 tons of fertilizer. Further, as above noted, there was a breach of said contract by the appellee on October 6, 1910, and at that time, while 1,177% tons of fertilizer had heen sold by appellee, as much as 1,000 tons had not been "collected for." Under the provisions of the contract, appellant had the option to avail itself of the personal services of appellee in the collection of said notes. RAILROADS 351(3) CROSSING ACCI. DENTS BURDEN OF PROOF-INSTRUCTIONS. In action for injury to traveler at grade crossing, when he drove on the track 50 feet ahead of an approaching train, it was error to refuse instruction that the law recognizes that there can be instantaneous response, and that nerves and muscles are not so co-ordinated that if the automobile was suddenly stopped on the track the jury should not find for plaintiff, unless he proved that in contemplation of the entire situation after the danger became known to the motorman, or ought to have been discovered by him by the exercise of ordinary care, FICIENCY. In action for injuries to traveler at crossing, evidence held such that motion to set aside verdict for plaintiff as contrary to the law and the evidence should have been sustained. Error to Circuit Court, Princess Anne County. Action by A. R. Smith against the Norfolk Southern Railroad Company. Judgment for plaintiff, and defendant brings error. Verdict set aside, judgment reversed, and cause remanded. James G. Martin, of Norfolk, for plaintiff in error. R. R. Hicks and W. R. L. Taylor, both of Norfolk, for defendant in error. [2] Instruction B reads thus: "The court instructs the jury that the burden of proving contributory negligence is upon the defendant." Such an instruction has been condemned in several cases in Virginia. It should have concluded thus, "unless such contributory evidence, or could fairly be inferred from negligence was disclosed by the plaintiff's the circumstances," or with language of sim ilar import. Kimball & Fink v. Friend, 95 Va. 125, 27 S. E. 901; Southern Ry. Co. v. Bruce, 97 Va. 92, 33 S. E. 548; Southern Ry. Co. v. Mason, 119 Va. 262, 89 S. E. 225. [3] The refusal of the court to grant in is assigned as error. This instruction reads: PRENTIS, J. The plaintiff in error, hereinafter called the company, complains of a final judgment in favor of the defendant in error, hereinafter called the plaintiff, because of an injury caused by the collision of a train of the company, consisting of three electrical-struction Z, at the request of the company, ly operated cars, with an automobile operated by him, at a road crossing in Princess Anne county. There were two trials; the court having, upon motion of the company, set aside the first verdict in favor of the plaintiff, but refused to set aside the verdict against the company upon the second trial, and entered judgment thereon. [1] The first error assigned is the overruling of the demurrer to the declaration and to each count thereof. It is sufficient to say, as to this, that under the Virginia statute (Code, § 3272) a declaration is not demurrable unless something so essential to the action is omitted that judgment according to the law and the very right of the case cannot be given. In this case, each of the four counts in the declaration gives the date and place of the accident, and such particulars thereof as plainly informed the company of every fact relied on by the plaintiff, which was essential to enable it to make its defense. The company is charged with negligence in several particulars, and with failure to exercise ordinary care to avoid the accident after, by the exercise of such care, it should have seen the plaintiff's danger. This is sufficient, and the court properly overrruled the demurrer. Another error assigned is the granting, upon the motion of the plaintiff, of instructions A and B. Instruction A reads thus: "The court instructs the jury that, even though they may believe from the evidence that the plaintiff was guilty of contributory negligence, yet if they further believe from the evidence that the defendant company knew of the plaintiff's danger, or by the exercise of ordinary care should have known of the plaintiff's danger, in time to have stopped its train and avoided the accident, it was its duty to do so; | "The court instructs the jury that the law of men are not so co-ordinated that there can recognizes the fact that the nerves and muscles be instantaneous action to meet an emergency, and if you believe from the evidence the plaintiff's automobile was suddenly stopped on the track, you cannot find for the plaintiff, unless you believe that the plaintiff has proved by the preponderance of the evidence that in contemplation of the entire situation after the danger became known to the motorman or ought to have been discovered by him, by the exercise of ordinary care, he. the motorman, negligently failed to do something which he had a last clear chance to do to avoid the accident." This instruction should have been given in this case. It was peculiarly appropriate in view of the evidence to be hereinafter referred to, and the failure to give it was prejudicial error. The doctrine of the last clear chance has nowhere been better stated than in the syllabus to the case of Roanoke Ry. & Elec. Co. v. Carroll, 112 Va. 598, 72 S. E. 125, thus: "The underlying principle of the doctrine of the last clear chance,' as declared by the dethe contributory negligence of the plaintiff, there cisions of this court, is that, notwithstanding is something in his condition or situation at the time of the injury to admonish the defendant that he is not able to protect himself. The doctrine is one of prior and subsequent negligence, or of remote and proximate cause, and presupposes the intervention of an appreciable interval of time between the prior negligence of the plaintiff and the subsequent negligence of defendant. Where the negligence of both continues down to the moment of the accident and contributes to the injury, the case is one of concurring negligence, and there can be no recovery." And again, in Real Estate Trust & Ins. Co., Inc., v. Gwyn's Adm'x, 113 Va. 337, 74 S. E. 208: "In order that the doctrine of the last clear chance' may apply, it must appear that in And in Norfolk Southern R. Co. v. White's Adm'x, 117 Va. 342, 84 S. E. 646, it is said: "The doctrine has no application where * the negligence of the plaintiff's intestate and that of the defendant, if there was any such, were so closely connected in point of time as not to have afforded the employés of the defendant a plain opportunity to avoid inflicting the injury for which the action is brought." contemplation of the entire situation, after the it; that the train was coming just as fast danger of the plaintiff became known to the as it could, that it did not have any check defendant, or ought to have been discovered by at all, and she judged it was 60 or 75 feet him by the exercise of ordinary care, he negligently failed to do something which he had a away; that she was struck dumb, she supclear chance to do to avoid the accident. But posed; and that she did not have power to the doctrine can have no application to a casc where the negligence of both plaintiff and de- move or say anything. Charles Wood, anothfendant is simultaneous and concurrent." er witness for the plaintiff, riding on the back seat of the automobile, says he saw the train just before he got to the track, but did not say anything, and that to the best of his knowledge the train was about 50 feet off: that the train was very close. The plaintiff also says that after he looked each way and got near to the track he saw the men there when too late, even if he had seen the train. He says he did not see the train. This statement of his that he did not see the train can only be explained by the fact that he did not look, because there was nothing to obstruct his vision after he passed Gimbert's store, which no one locates closer to the track than 20 feet, and which the evidence fairly shows was 28 feet 8 inches from the nearest rail of the railroad track, while the automobile could have been easily stopped at the speed at which it was going within seven or eight feet. The plaintiff repeats his statement that he never did see the train, and did not know what struck him until the next day. The train was stopped at the station about 50 feet away from the point of the collision, and it clearly appears that its speed had been slackened in order to stop at the station. Land, another witness for the plaintiff, says that if the automobile instead of stopping, had continued to move, it might have gotten across, though "it would have been a close shave, but he might have made it." The witness chiefly relied upon to sustain the recovery is Trunnell, who had been a motorman on the Norfolk Southern. He says the train was going very slowly, and that he judged it could have been stopped in about 20 or 30 feet. He also says that even after the emergency brake had been put on, the train might slide one or two car lengths and sometimes more. On the first trial this witness had testified that the train could have been stopped in from 28 to 30 feet. The instruction complained of, in its statement of the fact that the nerves and muscles of men are not so co-ordinated that there can be instantaneous action to meet an emergency, is based upon an expression in the opinion of Keith, P., in the last-named case; and in cases like this, where the evidence justifies calling the attention of the jury to this truth, it is proper to give an instruction to the effect that there must be an appreciable interval of time between the moment in which the person charged with negligence should, in the exercise of proper care, have seen and apprehended the impending danger, and thereafter, in the exercise of such care, have sufficient time in which to take such action as will avoid the accident. Under the facts of this case, the instruction was manifestly proper. Southern Ry. Co. v. Mason, supra; Wash. & Old. Dom. Ry. v. Ward, 119 Va. 334, 89 S. E. 140. [4] After verdict the company moved the court to set it aside as contrary to the law and the evidence, and this motion should have been sustained. These facts appear from the evidence of the plaintiff and his witnesses: That he might have seen 100 yards or more along the track after he passed the store which, until he was within 20 or more feet of the track, obstructed his view. His description of the accident is this: "As I was coming up from Norfolk way, going down to the Beach, coming looking, and I didn't hear no whistle blown, and didn't see no car, and when I got to the railroad, Mr. Gimbert's store blocks it so you can't see nothing until right on the railroad, and when I got to the railroad there were three negroes on the track, and I run up there and had to stop my machine, and blew my horn before I got there, and when I blew my horn two of the negroes got out of the way, and the other one stood there, and I don't remember anything else." He further says that he did not know what struck him until the next day. The plaintiff's wife, sitting next to him in the automobile, says that when the automobile was about 3 feet from the track she looked up and saw the car coming about 75 feet away, and there was a rise about 2 feet up on the track, which cut their speed off, and when The physical facts are that although there were five occupants of the automobile, two of whom were children 11 and 7 years of age. respectively, only the plaintiff, who was driving, was hurt; that after it was struck its engine continued to run, and described a semicircle, and after the collision was making its way back towards the train, when Mrs. Smith, the plaintiff's wife, stopped the engine. These facts demonstrate that the train could not have been moving rapidly at the time of the impact. Under such circumstances as these, the doctrine of the last clear chance can have no application whatever. The proximate cause of the accident was the negligence of the plaintiff in failing to observe the approaching train, in failing to track, and in stopping it thereon almost im- advancement, but avers that he was a purmediately before the accident. chaser for value of the fund by contract in writing. The verdict will be set aside, the judgment reversed, and the case remanded for a new trial, if the plaintiff shall be so advised. Reversed. From a decree sustaining the defendant's contention, this appeal was taken. The contract referred to was entered into by Kate N. Stark and J. C. Stark on August 16, 1909, and in substance is as follows: The first party employed the second party as her agent and attorney in fact to manage and (Supreme Court of Appeals of Virginia. Jan. control her interest in a partnership between 24, 1918.) In general, two elements are essential to constitute an "advancement," a gift as distinguished from a transfer for valuable consideration by the parent to the child, and the intention of the donor that the gift shall be an advancement. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Advancement.] 2. DESCENT AND DISTRIBUTION VANCEMENT-ESSENTIALS. 109-AD Where the mother employed her son as her agent and attorney in fact to control her interest in a partnership, according to his judgment, to receive for compensation the profits, and, if the mother died, her interest therein, including her contribution to the capital stock, to become the property of the son, but if he should die before her, the capital to go to the mother and the profits to the son's estate, in consideration of which the son agreed to pay interest on the original capital, the instrument contained all the elements of a contract executory, exhibiting no intention to create an advancement, and on the mother's death the son could not be compelled to bring into hotchpot the amount of the capital invested before being allowed to participate in the estate. Sims, J., dissenting. Appeal from Circuit Court, County. Culpeper Bill by Adina Hill against J. C. Stark for himself and as administrator of Kate N. Stark, deceased, and others. Decree for defendants, and plaintiff appeals. Affirmed. Edwin H. Gibson, of Culpeper, for appellant. Grimsley & Miller, of Culpeper, for ap pellees. WHITTLE, P. The case is this: Appelant, Adina Hill, a daughter of Kate N. Stark, deceased, filed her bill in equity against the administrator and the other heirs and distributees of her mother, who died intestate, for partition and distribution of her real and personal estate among those entitled. The sole controversy arises out of the prayer that the defendant J. C. Stark, a brother of complainant, be denied participation in the distribution of the estate until he shall have brought into hotchpot the sum of $4,000, alleged to have been received by him as an advancement from the decedent in her lifetime. J. C. Stark, in his answer, controverts the allegation that the sum in dispute was an herself and T. H. Brown, as Brown & Stark, "In consideration of the promise and undertakings on the part of the party of the first part, the party of the second part agrees to pay to the party of the first part, the interest on $4,000 during the continuance of this contract. such interest to be paid in equal monthly installments." The original contract stipulated that the partnership should last for three years; but afterwards it was agreed that it should continue until such time as should be mutually agreed on by the parties. Mrs. Kate N. Stark died in August, 1915, at which time the contract was in full force and effect; and up to the time of her death J. C. Stark had performed all obligations assumed by him., In 1 R. C. L., at section 1, p. 653, it is said: "It is difficult to frame a definition of the term 'advancements' with accuracy and precision, inasmuch as it is used in both a popular and a technical sense. It has been enlarged in many instances to meet the apparent justice of particular cases and restricted in other instances for the same reason; moreover the statutory enactments of various jurisdictions have, to some extent, changed its common-law meaning. Notwithstanding the difficulty of framing a definition which will cover every case, there are certain well-determined and essential ele ments that are usually accepted as being necessary to the existence of an advancement. its strictest technical sense an advancement is a perfect and irrevocable gift. not required by law, made by a parent during his lifetime to his child, with the intention on the part of the donor that such gift shall represent a part or the whole of the portion of the donor's estate that the donee would be entitled to on the death of the donor intestate." In |