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were of less importance, since if the vessel was not a public work within the meaning of the statute the plaintiffs would have no standing to maintain any suit. The Supreme Court affirmed the decision of the circuit court of appeals declaring the vessel a public work within the meaning of the words used, and holding that not withstanding the fact of delivery the statute was applicable to the contract and that the claimants are within the policy of the enactment. Other points involved resulted in the affirmation of the judgment of the lower court holding that the United States was not necessarily made a party to the suit; and that while remote claimants were not entitled to the benefit of the bond, those who furnished materials (as patterns for castings) stood on the same footing as the workmen immediately employed upon the vessel.

DECISIONS UNDER COMMON LAW.

EMPLOYER AND EMPLOYEE — CONTRACT OF EMPLOYMENTBREACH-ACCORD AND SATISFACTION-NECESSARY ELEMENTS Fuller v. Smith, Supreme Judicial Court of Maine, 77 Atlantic Reporter, page 706.-H, G. Fuller sued Harry L. Smith for damages for the breach of a contract of employment in the superior court of Cumberland County, and from a judgment in Smith's favor an appeal was taken resulting in the reversal of this judgment. The contract was entered into on January 1, 1909, and contemplated service for one year, but on Saturday, June 26, Fuller was discharged, wrongfully as he claimed, but on account of failure to devote himself properly to his business, according to Smith's statement. The agreed balance due on Saturday, June 26, was $21.06, which was offered Fuller on condition that he sign a receipt containing the words "in full of all contracts written and verbal.” This receipt Fuller refused to sign, whereupon Smith asked, “You are not going to do anything, are you?” to which Fuller replied, “That remains to be seen.” The conversation was then interrupted and nothing more was said as to the check or receipt. On the following Monday, Fuller received a letter inclosing a check for the amount due with the statement that it was "a settlement in full of all my indebtedness to you and all of yours to me, and under all existing personal contracts between us.” Then followed an itemized statement of debits and credits, the letter closing with the words “my decision as last expressed to you and the instructions are in no way altered."

At the trial Smith contended that the acceptance of the check with the letter was an accord and satisfaction of Fuller's claim for damages as sued for. The trial judge properly stated what are the essential elements of a valid accord and satisfaction and then expressly

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instructed the jury that if the plaintiff did receive the letter with the check, his acceptance of the check constituted an accord and satisfaction and would bar any recovery of damages for the breach of the contract. It was to this instruction that the plaintiff took exceptions, and it was on this point that the case was before the supreme court. In this court a different view was taken from that held by the judge of the lower court, holding that the question of the effect of the letter was one of fact and not of law. The opinion of the court was delivered by Judge King and is in part as follows:

The question presented by this exception then is whether the plaintiff's acceptance of the check, after the interview in the office and the receipt of the letter which accompanied the check, so conclusively establishes an accord and satisfaction or settlement of his claim for damages against the defendant for wrongfully discharging him as to leave no question of fact for the jury to determine.

The statute of this State (Rev. St. ch. 84, sec. 59) provides: “No action shall be maintained on a demand settled by a creditor or his attorney intrusted to collect it in full discharge thereof by the receipt of money or other valuable consideration however small."

Under this statute, an accord and satisfaction is an executed agreement, whereby one party gives and the other receives, in satisfaction of a demand, liquidated or unliquidated, some money or other valuable consideration, however small. No invariable rule can be laid down as to what constitutes such an agreement, and each case must be determined largely on its own peculiar facts. The agreement need not be express, but may be implied from the circumstances and the conduct of the parties. It must be shown, however, that the debtor tendered the amount in satisfaction of the particular demand, and that it was accepted by the creditor as such.

In considering the question thus presented it is important to keep in mind the fact that the amount of the check was precisely the undisputed amount of the balance due from the defendant to the plaintiff, independent of any damages arising from the breach of the contract, and therefore that no part or portion of such damagesthe demand which is the subject of the alleged accord and satisfaction-was tendered or accepted. The question here involved, therefore, is not the usual one, whether the tender and acceptance of a part of a claim was a satisfaction of the whole, but rather the unusual one, whether the tender and acceptance of payment of the whole of an undisputed claim constitutes an accord and satisfaction of another distinct and independent claim. It is urged that the tender and receipt of the check in this case, it being only for the amount of the undisputed balance due the plaintiff, was not a sufficient consideration for the alleged accord and satisfaction. But it may have been. Notwithstanding the fact that the amount of the check was admittedly due, yet, if the defendant was unwilling to pay it except on the condition that the plaintiff would accept it in full satisfaction of his claim for damages, and tendered it on that condition, and the plaintiff accepted it on that condition, such tender and acceptance would we think constitute a settlement of the plaintiff's claim for damages upon a valid consideration within the meaning of our statute. But the question recurs: Was the check unmistakably tendered and accepted upon that condition? In other words, is that the only reasonable inference to be drawn from all the evidence ? We are constrained to answer in the negative. When a person tenders his creditor the exact amount of his undisputed debt, but intends that, if it is accepted, it shall also be in satisfaction of another demand, fairness and justice require that he should make his intention known to the creditor in some unmistakable manner. The proof should be clear and convincing that the creditor did understand the condition on which the tender was made, or that the circumstances under which it was made were such that he was bound to understand it. If the debtor undertakes to state the condition on which he makes the tender, his statement should be explicit, and all uncertainty and doubt should be resolved against him.

In his letter to the plaintiff, the defendant said: “I inclose herewith the company's check for $21.06, being a settlement in full of all my indebtedness to you and all of yours to me, and ending all

„ existing personal contracts between us."

If nothing further had been added, the plaintiff might have been bound to understand that the indebtedness" referred to embraced his claim for breach of the contract. But the defendant added an explicit explanation of what the “indebtedness" was. He stated in the letter specific items of debt and credit, showing precisely what was covered by the check.

No mention was made therein of the possible claim of the plaintiff for damages for breach of the contract, which had at least been hinted at in the previous interview of Saturday. In that interview the defendant was informed that the plaintiff would not sign a receipt that might discharge his claim for damages, and, although the defendant asked for such receipt, it does not appear with certainty that he had then decided not to pay the balance actually due unless the receipt was signed, for the conversation was then interrupted and nothing more was said or done about the matter. If the defendant intended, when he sent the check and made up the statement contained in the letter, to permit the plaintiff to accept the check only on condition that it should also settle in full his possible claim for damages, is it unreasonable to infer that he would have expressly so stated ? Not having so stated, but, on the other hand, having shown in the letter that the check was the exact balance of a detailed account therein specified, we think it can not be held as a matter of law that the plaintiff could not have reasonably understood from the letter and circumstances under which the check was sent that it was payment only of that specific balance of the account admittedly due him, and that the expression and ending all existing personal contracts between us” was used to emphasize the fact that the plaintiff was discharged.

The specific instruction complained of took from the jury entirely the question of the effect to be given to the letter as bearing upon the intent with which the check was tendered and accepted.

It is the opinion of the court in the case at bar that the presiding judge erred in instructing the jury as a matter of law that, if the plaintiff received the letter together with the check, their verdict should be for the defendant, but that the ultimate question, whether from all the evidence the defendant tendered the check upon the condition that, if the plaintiff accepted it, his acceptance of it was to be a satisfaction of his claim for damages as well as payment of the balance admittedly due him, and whether he did know or should have known that the check was tendered on that condition, should have been submitted to the jury with proper instructions.

EMPLOYERS' LIABILITY-INJURIES BY FELLOW SERVANTS—"INITIATIONOF NEW EMPLOYEES- Medlin Milling Co. v. Boutwell, Supreme Court of Texas, 133 Southwestern Reporter, page 1042.—This case was before the supreme court on a writ of error to review a judgment of the court of civil appeals which had affirmed the judgment of the lower court in favor of Boutwell for injuries received by him while being "initiated" into the service of the company named. (See Bulletin No. 87, p. 674.) The initiation, so called, was accomplished by the older employees seizing the new employee and laying him across a barrel for the purpose of paddling him, and it was while resisting such action that Boutwell received the injuries complained of. From a judgment in his favor the company appealed and secured a reversal of that judgment on the grounds that appear in the following extract from the opinion of the supreme court as delivered by Judge Williams:

The custom of “initiating" all new officers and employees from the president to the lowest, in the manner indicated, which had commenced several years before plaintiff's entrance into the service, seems to have been observed with reference to all with perfect impartiality; and it is, perhaps, needless to add that they all knew of it. About a week after plaintiff's employment, several of the employees, including one of the foremen, attempted to subject him to the process, and a struggle followed in which he received the injuries of which he complains.

These seem to us to be all of the facts to be taken into consideration in reaching a decision, and we can discover in them no basis for legal liability on the part of the defendant. The defendant was held responsible for the assault committed by persons in its service because the practice had been pursued with the knowledge and acquiescence of those who were its officers and managers, which fact was held to justify the finding that defendant had authorized the assault. But what, we may ask, as such officers and managers, had they to do with the custom? It was a practice of the men who happened to be officers, or employees, of the corporation in an affair of their own, and not in or about any business of that corporation. Officers as well as employees were engaged in it as individuals and not as representatives of the company. Their knowledge of and acquiescence in it was simply that of men concerning the conduct of persons pursuing exclusively their personal ends. About a matter of that kind they were wholly without authority to act for or bind their principal. It is in the assumption that the conduct of the officers with reference to such a matter is to be treated as that of the

86026°—Bull. 93—11- -23

corporation the fallacy lies. Such a proposition is true only when the officer acts or fails to act in some business of the corporation, the conduct of which lies within the scope of his authority and in which he is employed to represent it. That a corporation may expressly or impliedly authorize the commission of assaults and be made liable for those committed by its agents which it so authorizes is undoubtdly true; but it does not authorize its employees to commit assaults merely by employing and failing to restrain them. The assault, unless expressly authorized, must come within the scope of that which the servant is employed to do. Nor does it by the mere selection of officers empower them to make it responsible for their action or nonaction in or about matters entirely outside the sphere of its business. In such affairs the officers and employees do not act or acquiesce as representatives, but as free agents responsible for their own conduct.

The court then cited a passage from Labatt's Master and Servant, section 537, the concluding sentences of which are as follows:

“In most kinds of business authority to commit acts of personal violence amounting to a battery can not be inferred, for this reason, if for no other, that larger powers can not be imputed to an agent than the principal himself possesses. A master, therefore, can not ordinarily be held liable for the act of a supervising employee in beating a subordinate, even though it was for the purpose of furthering the master's business by compelling him to work."

Following this conclusion, the court reversed the judgment of the court below and rendered final judgment in favor of the company.

EMPLOYERS' LIABILITY—INJURY TO EMPLOYEE BEING TRANSPORTED TO PLACE OF EMPLOYMENT—Headline v. Great Northern Railway, Supreme Court of Minnesota, 128 Northwestern Reporter, page 1115.-- The plaintiff in this case was Agnes C. Headline, administratrix of the estate of the deceased, who was an employee of the railway company named, working for it as a bridge carpenter. The contract of his employment required the company to furnish him transportation to any place where it required him to work. While being so carried on December 28, 1908, he was killed as the result of a collision caused by the negligence of an engineer and conductor of a train colliding with the work train upon which he was riding. Questions were raised as to the status of the deceased at the time of his being transported and also as to the question of fellow service, the accident having taken place within the limits of the State of Montana. It was not clear what the judgment of the Montana courts would be on the question of fellow service, so the Minnesota court determined the question on the basis of the construction of the common law followed in the latter State, which is to the effect that the deceased and the engineer and conductor of a different train were not fellow servants. The decision of the court in the trial

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