them from the overhead track-as shown on the two occasions when the hoist fell-was that resulting from the piston striking some object on the floor through the negligence of the workmen operating them. The danger, then, which plaintiff did not know, was that his co-employés might be negligent. Surely, no one will contend that he did not assume this danger, whether he apprehended it or not. His employment bound him to assume it. Quincy Mining Co. v. Kitts, 42 Mich., at page 39, 3 N. W. 240; Hewitt v. Railroad Co., 67 Mich., at page 66, 34 N. W. 659. Nor can it be contended that the fact that a hoist fell, through the negligence of his co-employés, before plaintiff was injured, charged defendant with the duty of informing plaintiff of this occurrence. It is true that this occurrence was not known to the plaintiff, and that it was known to defendant's assistant foreman, in charge of the shop where he worked. The knowledge of this official would not, however, be imputed to defendant (see Findlay v. Russell Wheel & Foundry Co., 108 Mich. 286, 66 N. W. 50), and there was nothing in the circumstance of the fall itself to give the defendant knowledge.

We are bound to hold, therefore, under the law as declared by this court, that plaintiff's injuries resulted from a risk assumed by him, and therefore the judgment of the court below must be reversed, and a new trial ordered. The other Justices concurred.

CENTRAL SAV. BANK ▼. O'CONNOR et al. (Supreme Court of Michigan. March 30, 1903.) EVIDENCE - WRITTEN INSTRUMENT - CONDITIONAL DELIVERY-CONDITION SUBSEQUENT -PAROL TESTIMONY-FAILURE OF CONSIDERATION-JUDGMENT NON OBSTANTE VEREDICTO-PROPER PRACTICE.

1. Evidence is inadmissible that notes were delivered on a parol condition that, should the maker of another note and chattel mortgage, the assignment of which was the consideration for the notes in question, become bankrupt, they should be void.

2. Where a note indorsed by responsible persons, and a chattel mortgage securing it, are given in consideration of other notes, consideration for them does not wholly fail, though the maker of the first note and mortgage becomes bankrupt.

3. Judgment non obstante veredicto cannot be entered where there is merely a general verdict for the opposite party, and no special verdict inconsistent therewith.

Error to Circuit Court, Wayne County; Joseph W. Donovan, Judge.

Action by the Central Savings Bank against George M. O'Connor and another. Judgment for plaintiff, and defendants bring error. Reversed.

Charles W. Casgrain (E. A. Fink, of counsel), for appellants. Dwight C. Rexford, for appellee.

IL See Evidence, vol. 20, Cent. Dig. §§ 1800, 1943.

MONTGOMERY, J. This action is brought upon two promissory notes aggregating $1,523.47, made by the defendant O'Connor, and indorsed by the defendant Hammond. The notes bear date February 1, 1901. The plaintiff made its case by introducing them in evidence. The defendants then offered to show by a parol agreement made at the time said notes were executed, and which is set out in a notice under the general issue, in substance as follows: That the notes were given for the amount of a chattel mortgage which plaintiff held upon property of the J. R. Pearson Company, which property defendant O'Connor had purchased; that the title to said notes never passed to said plaintiff; that the notes were delivered to plaintiff upon the clear and distinct understanding and condition, agreed to by said plaintiff, that in case the said J. R. Pearson Company should thereafter be forced into bankruptcy by any of its creditors, upon proceedings instituted by them for that purpose, and adjudicated a bankrupt, said notes would thereupon, in the event of the happening of such contingency, become and be null and of no effect, and were not to be paid, and that it was upon said condition said notes were delivered to said plaintiff; and that it accepted and held, and still holds, them, and each of them. The evidence of the defendant upon this subject, which is most favorable to the defense, is, in substance, this: That the notes were executed in consideration of the transfer by the plaintiff to the defendant of a chattel mortgage and accompanying note of the J. R. Pearson Company, which note was indorsed by J. R. Pearson, F. H. Crawford, and A. J. Franklin. Defendant testifies that, after the note was signed and indorsed, he then said to Mr. Fox, plaintiff's representative: "These notes are delivered to you on the condition that if this concern is put in bankruptcy by reason of any of these creditors petitioning because of this chattel mortgage having been given, or an execution having been levied and the goods sold under the execution, which are both acts of bankruptcy, then the notes are to be null and void; and Mr. Fox says that is my understanding of it, and I accept them so; and he says you know that there is nothing going to be done about it." On the trial of the case the court submitted the case to the jury upon the instruction that, if the claim set up by the defense is true, the plaintiff could not recov

lants' counsel, that it may be shown that a promissory note, unconditional in terms, was conditionally delivered; that is to say, that it was placed in the hands of the payee, but with the distinct understanding that it was not to be operative or to become a binding obligation until the happening of some event. Brown v. St. Charles, 66 Mich. 71, 32 N. W. 926; Burke v. Dulaney, 153 U. S. 226, 14 Sup. Ct. 816, 38 L. Ed. 698. On the other hand, the rule is firmly established that where a promissory note for a certain amount, payable at a certain time, is delivered into the hands of the payee, or to take effect presently as the obligation of the defendant, parol evidence to introduce conditions or modifications of the terms is not admissible. The case of Hyde v. Tenwinkel, 26 Mich. 93, illustrates this rule. It was there held that an attempt to show a verbal contemporaneous agreement to reduce a note from an absolute and specific promise to a defeasible engagement was inadmissible. The same rule has been followed, one of the recent cases being Phelps v. Abbott, 114 Mich. 88, 72 N. W. 3; Burns & Smith Lumber Co. v. Doyle (Conn.) 43 Atl. 483, 71 Am. St. Rep. 235. We think it clear that the present case falls within that line of cases which precludes parol evidence offered to vary the terms of a written instrument. If we adopt the testimony of the defendant as correctly stating the transaction, and more certainly if we adopt the terms of the notice of defense by which the defendant was bound, these notes were delivered to take effect presently, but upon the alleged parol agreement that they were to become void in the event that a certain contingency should happen. This is no more than averring that plaintiff entered into a contemporaneous parol agreement that, while the defendant's obligation bound him to pay absolutely the sums of money at specified times, yet in a certain contingency this sum should not be payable at all, and the notes be redelivered.

It is suggested, also, that there was a total failure of consideration. This cannot be held, for the reason that there was transferred to the defendant, in consideration for the notes, the chattel mortgage and promissory note of the J. R. Pearson Company, which note had indorsers against whom it would be enforceable. There was no absolute and total failure of consideration, and no defense of partial consideration was noticed under the general issue.

We think, however, that the practice adopted in this case was mistaken. There is no verdict which supports the judgment entered non obstante veredicto. Had there been a special verdict inconsistent with the general verdict, such a judgment might have been proper.

We think the case should be reversed and remanded for a new trial. No costs will be awarded to either party on this hearing. The other Justices concurred.

DETROIT ELECTRIC LIGHT & POWER CO. v. APPLEBAUM et al.

(Supreme Court of Michigan. March 30, 1903.)

EVIDENCE-ADMISSION AGAINST INTERESTAGENT'S TORTIOUS SALE OF GOODS-SUIT BY OWNER-INSTRUCTION - RECEIVER RIGHT

TO SUE.

1. A party suing to recover goods tortiously sold by his agent, who proves the receipt of his property by the agent's vendee by the latter's admissions, is not concluded by the vendee's accompanying explanations that he dealt with the agent in his representative capacity, relying on his apparent authority.

2. In an action by the owner of goods tortiously sold by an agent, to recover them from the agent's vendee, an instruction that, where a transaction will admit "either" of an honest or dishonest construction, it is the jury's duty to accept the former, is error, though the use of the word "either" in place of "equally" was a clerical error.

3. A receiver who has not accounted or been discharged, whose bond is still in force, and who has been authorized by the court to do so, may sue to recover assets of the estate, though previous to the suit the estate had been sold by the court to the receiver in a trust capacity.

Error to Circuit Court, Wayne County; Morse Rohnert, Judge.

Action by the Detroit Electric Light & Power Company (Hoyt Post, receiver) against Isaac Applebaum and another. Judgment for defendants, and plaintiff appeals. Reversed.

Wilkinson, Post & Oxtoby and Walter E. Oxtoby, for appellant. Adolph Sloman and Alex. J. Groesbeck, for appellees.

MOORE, J. This is an action brought by the Detroit Electric Light & Power Company, under the receivership of Hoyt Post, against the defendants, for the value of 7,728 pounds of copper wire alleged to have been stolen from plaintiff by certain of its employés, and by them sold to the defendants. The defendants obtained judgment. The case is brought here by writ of error.

The record shows the plaintiff company became embarrassed, and Mr. Williams was appointed receiver in May, 1899. The transactions out of which this suit springs occurred in April and May, 1900. At this time Mr. Williams was receiver, Daniel A. Casey was manager, and Robert A. Tress was line foreman of the company. The defendants were copartners in business under the firm name of I. Applebaum & Co. Isaac Applebaum carried on individually a separate scrap-iron business. The offices and yards of the two concerns were together, and adjoined the Detroit Electric Light & Power Company. One of their yards was on Woodbridge street, adjoining the power plant of the company, and their office and other yard was on Randolph street, separated from the power plant by a building occupied by a foundry. In April and May defendants purchased from Tress 7,728 pounds of old copper wire, for which

11. See Evidence, vol. 20, Cent. Dig. § 1023.

this suit is brought. It was the claim of plaintiff that Tress and Casey were acting in collusion; that the wire belonged to the plaintiff, and was sold by Tress, individually and without authority, to the defendants; that having bought from Tress individually, who had no title, the defendants received no title, and were liable in trover. The defendants' theory was that they bought in good faith from the Detroit Electric Light & Power Company, through Casey, as manager, and Tress, as line foreman; that, knowing of no secret limitations on their apparent authority, they had a right to rely in good faith upon such apparent authority; that, having done so, they did not become liable, even if in fact Tress & Casey exceeded their authority in selling, and embezzled the proceeds of such sales. The record contained testimony tending to support both theories.

The first error demanding attention is the refusal of the court to submit to the jury plaintiff's theory of the case, to wit, sales by Tress of wire as his own property, without reference to plaintiff's ownership, on the ground that, the plaintiff's ownership of the property being shown by defendants' admis sions, plaintiff must take all of such admissions or none. The court refused to submit to the jury the question whether the defendants bought the wire from Tress as his own property, and without reference to the ownership of the plaintiff company, in which case they acquired no title to it; Tress having none himself. The court did this on the ground that, as plaintiff proved the receipt of its property by defendants from their own admissions, plaintiff must take both the admissions and the explanation, and could not take the admission and contradict and do away with the explanation. There was testimony tending to sustain plaintiff's contention that defendants actually knew that the wire belonged to the plaintiff, and yet undertook to buy it of Robert A. Tress individually, and that as an afterthought they took the ground that they bought from the plaintiffsuch as the statements made by the defendants in police court, and the entries of the transaction which appeared upon the books of defendant, at least some of which were changed. The plaintiff could avail itself of the admissions made by the defendants that the property bought of Tress was its property without being bound to accept all of the defendants' statements as to what they supposed about the ownership of the property. The jury might believe that part of the admission which charged the defendants, and disbelieve that part which made a defense, if the latter was improbable and discredited by the other testimony. See Liesemer v. Burg, 106 Mich. 124, 63 N. W. 999; Parret v. Craig, 56 N. J. Eq. 280, 38 Atl. 305; Craig v. Parret, 56 N. J. Eq. 848, 42 Atl. 1117; Delamater v. Pierce, 3 Denio, 315; Roberts v. Gee, 15 Barb. 449. In Schmidt v. Pfau, 114 III. 494, 2 N. E. 522, the court says: "The

answer of the appellant to this is to the effect that, if his testimony is looked to for the purpose of proving any particular fact, it must be accepted as a whole, and for all purposes. This view of the law is clearly unsound, and finds no support from English or American authority. It is a familiar principle of the law of evidence in this country and in England that the statements of a party, made against his own interest, may be accepted and acted upon by the jury as true, while others made in his favor, though at the same time and as part of the same conversation, may be rejected as unworthy of belief. In such case all that the witness has said relating to the particular matter in question goes to the jury for their consideration, but when considered they may believe such parts of the statement as seem reasonable and probable, and reject the balance. Best on Evidence, § 520."

Complaint is made of the following part of the charge: "The law presumes that parties, in their dealings, intend to conduct them honestly; and, where a transaction which is challenged will admit either of an honest or a dishonest construction, it is the duty of the jury to accept the former-that is, to accept the honest construction." Counsel for appellees suggest that a typographical error crept in, and the word "either" was used when it was intended to use the word "equally." If the word "equally" had been used, the charge would not have been objectionable; but unfortunately it was not used, and by the charge a burden was put upon the plaintiff which does not exist even in cases of fraud. See Watkins v. Wallace, 19 Mich. 57; Sweeney v. Devens, 72 Mich. 301, 40 N. W. 454; Kipp v. Lamoreaux, 81 Mich. 299, 45 N. W. 1002; Morley v. Insurance Co., 85 Mich. 210, 48 N. W. 502; Knop v. Fire Insurance Co., 107 Mich. 323, 65 N. W. 228.

The other assignments of error which have been urged have been considered, but, as the questions involved are not likely to arise again, we do not deem it necessary to say any more about them.

On the part of the appellees it is claimed that as the property, including choses in action, of the Detroit Electric Light & Power Company, had been sold, before this suit was brought, by virtue of a decree entered in the foreclosure case, to Hoyt Post, trustee, and a deed made to him by the special master commissioner, Hoyt Post, as receiver, cannot maintain this action, and the verdict and judgment ought to stand. The sale was made to Hoyt Post, as trustee, June 29, 1900, and the master's report of the sale was filed June 30th. August 1, 1900, Mr. Williams resigned as receiver, and on the same day the court accepted his resignation, and appointed Hoyt Post receiver, and authorized said receiver to institute and prosecute all such suits as, in his judgment, were necessary. The deed from the special master to Hoyt Post, trustee, was made September 18, 1900.