should hand it to him, and he would know | of Smyth, and they could not become the what to do with it. Sexton. had told him nothing about the package, and he gave it to Smyth, who opened it and found it to contain Sexton's will, the deed in question, various other deeds, notes payable to Sexton, trust deeds, canceled notes of Sexton, certificates of stock, letters written to and by Sexton, statements of account, and other documents whose contents are not shown. The will was at once delivered to the Merchants' Loan & Trust Company, which was named as executor and trustee, and was probated, and the other papers were retained by Smyth, who afterwards delivered the deed in controversy to the Merchants' Loan & Trust Company by the direction of the probate court. The appellant, knew nothing of the deed until after his brother's death, and learning of its existence, demanded it first of Smyth while it was in his possession, and afterwards of the Merchants' Loan & Trust Company, to which it had been delivered, but his demands were refused. property of any one else except upon some direction of Sexton. The will could not become the property of any one. It was in the same situation as the rest of the package. If Sexton had no control of the other contents, he had no control of the will. Father Smyth did not understand Sexton's wishes, had no knowledge of the contents of the package, or what Sexton wanted done with them, and had in no way been informed or consulted about the matter. It seems reasonably certain, from the evidence, that Sexton, in making preparations for his trip abroad, intended to leave his will and some papers with Father Smyth with instructions; that he collected the papers together, and, from the useless character of a part of the collection, did so with some haste or lack of care; that he made the indorsement on the wrapper and intended to inform Father Smyth of his wishes, but for some reason, perhaps lack of time or opportunity, failed to do so. He failed to write during the few weeks of his absence, and on his return the package was brought back to him. What was done then or afterwards is not material, for the deed was either delivered on August 8, 1903, or not at all. The date of the deed is August 25, 1885, less than a year after Sexton acquired title to the property. The date of the will is June 26, 1902. By it the testator devises to each of his three sisters real estate in Chicago, and cancels all of his brother's debt to him, amounting to more than $50,000. No explanation appears as to why this deed was made or where it was during these 18 years. There is evidence that Sexton said in the spring of 1903 that he intended to let John have his Michigan avenue property. Whatever may have been his statements in that respect, they throw no light on the question whether he actually did deliver the deed. [2, 3] Delivery is essential to the validity and operation of a deed, and it is essential to delivery that the grantor shall have absolutely parted with all dominion and control over the instrument. These propositions have been declared in many cases, and the question for decision here is whether the grantor, when he delivered the package to Smyth, clearly manifested an intention then to part absolutely with all dominion and control over the deed, and to convey the estate to the grantee. Numerous cases have been cited by counsel in which, under varying circumstances, deeds have been held to have been delivered or not to have been delivered, but they are of little assistance, for no two sets of circumstances are alike. No new or doubtful rule of law is involved, but the question is one of fact. What Sexton's intentions were in regard to the package which he left with Smyth is only matter of [4] The court refused to admit evidence of conjecture. Certainly it cannot be said that a memorandum made by the testator while the mere act of placing the package in listening to the argument of a cause to Smyth's hands clearly indicated an intention which he was a party, involving the question to part with all control over the package of what is essential to the delivery of a deed, and its contents. He said to Smyth, "This and it is insisted that this was error, because is yours," but nobody claims that he thereby it would have appeared that the testator gave the package and its contents to Smyth knew what was necessary to make a good deas the latter's property. He merely intrust-livery. It was not error, however, for the quesed the package to him. The giving of this tion was not as to the testator's knowledge bundle of miscellaneous papers, with only but as to his acts; not whether he knew that the oral statement shown to have been made, it was essential to a delivery that he should could not be regarded as a delivery of the surrender dominion and control over the deed, for there were no instructions, express deed, but whether he actually did surrender or implied, to deliver it to the grantee at such dominion and control. any time. The indorsement does not make the intention clearer. It is clear, for it is expressly stated, that the package was to be opened only after Sexton's death. It is stated that the contents were no part of the estate of Patrick J. Sexton, but were the property of Father Smyth. The contents were The package contained deeds from the testator to his sisters of certain real estate devised to them by his will, and other deeds connected with the title to such real estate, and notes of the appellant for the principal sum of $50,000, which were by the will devised to the appellant. If the will should ing out the will, would naturally go, as a part of the testator's estate, to the persons to whom the will devised the property. The testator had the power to change the will, to revoke it and make an entirely different disposition of his property at any time. How can it be said, then, that the contents of the package were placed beyond his dominion and control? If he retained control of a part of the package, he retained control of all its contents. He did not make his wishes known to Father Smyth, but only left the package in his custody, to be opened after his death. He might ask for its return at any time, for the purpose of making a different disposition of his estate, or for any reason he thought proper, or for no reason. The superior court did not err in finding that there was no delivery of the deed. Decree affirmed. (257 111. 567.) EATON v. MARION COUNTY COAL CO. (Supreme Court of Illinois. Feb. 20, 1913.) 1. MASTER AND SERVANT (§ 285*)-INJURY TO MINE EMPLOYE-PROXIMATE CAUSE QUESTION FOR JURY. In a mine employe's action for injuries from being caught between the side of an entryway and a car which he attempted to sprag, through misunderstanding the directions of a coemployé, from a position where his duties required him to be, the question of whether the defendant's failure to keep the entryway unobstructed and safe was the proximate cause of the injury was for the jury. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. $$ 1002, 1003, 1007, 1008, 1016, 1035, 1043, 1053; Dec. Dig. § 285.*] 2. MASTER AND SERVANT (§ 118*)-INJURY TO MINE EMPLOYE-DANGEROUS OBSTRUCTION. Under Act 1911 (Laws 1911, p. 413) § 21, subsecs. 1, 4, 6, making it the duty of a mine examiner to discover and mark dangerous obstructions in places where employés are required to pass or work in performing their duties, a mining company is liable for injury to an employé, due to the company permitting an entryway to become dangerously obstructed. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. 88 177, 209; Dec. Dig. § 118.*] Error to Appellate Court, Fourth District, on Appeal from Circuit Court, Marion County; Thomas M. Jett, Judge. Action by W. L. Eaton against the Marion County Coal Company. There was a judgment of the Appellate Court affirming a judgment for plaintiff, and defendant brings error. Affirmed. W. F. Bundy, of Centralia (Noleman & Smith, of Centralia, and Dennison & Spiller, of Marion, of counsel), for appellant. Logan B. Skipper and Charles F. Dew, both of Centralia, and Charles H. Holt, of Salem, for appellee. FARMER, J. This case comes to this court on a writ of certiorari to review a judgment of the Appellate Court for the Fourth District, affirming a judgment of the circuit court of Marion county in favor of plaintiff for $1,100 for personal injuries. The errors assigned are that the trial court erred in refusing to direct a verdict in favor of defendant below, in ruling on evidence, and in giving and refusing instructions. [1] Plaintiff in error was operating a coal mine, and defendant in error was one of its employés. The declaration charged the proximate cause of plaintiff's injury was the willful failure of defendant to perform the duties required of it by the statute. In substance, the declaration alleged that a track was laid the entire length of the main west entry (one of the hauling roads of the mine) on cross-ties, for the purpose of hauling cars of coal, drawn by mules, to the hoisting shaft; that along said entry was a steep incline, rendering it necessary to sprag cars being hauled over the track to control their momentum, and prevent their running upon the mules; that plaintiff was an assistant driver in said mine, and that it was the duty of defendant not to permit said entry to become obstructed, narrow, or dangerous; that it was the duty of defendant, though its mine manager, to inspect the mine and observe whether any dangerous or unsafe conditions existed, and mark the places, as notice to miners to keep out, and not to permit any one to enter such places to work, except under the direction of the mine manager, until the dangerous conditions were made safe. The declaration further avers that the track in said main west entry, where the incline made it necessary to sprag the wheels of cars, was laid within 18 inches of the rib, and on the opposite side the entry was so obstructed by gob, slate, and other materials that the driver could not pass on that side of cars while in the discharge of his duties. It was further alleged that the entry became narrow and dangerous; that defendant willfully failed to mark the same; that it willfully permitted plaintiff to enter and work in said entry, not under the direction of the mine manager; and that while he was so engaged therein, and while endeavoring to sprag the wheels of a car, by reason of the dangerous conditions and obstructions, he was caught between the car and said obstructions, and, being unable to get around the car on account of the narrow and obstructed condition of the entry, he was thereby crushed and injured. The proof shows that some considerable distance from the shaft an entry was turned off the main west entry, known as "fifth north entry." Both these entries were about 12 feet wide, and a track in the fifth north entry connected with the track in the main west entry by means of a switch. There was a downgrade in the track as it came out of the fifth north entry into the main west, and that downgrade continued from the connection of the tracks in the two entries toward and to the bottom of the shaft. Just how For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes steep the grade was is not shown by the evi- | Paragraph “b” required the mine examiner, dence; but it was steep enough that the when he found in the working places an acwheels of cars were required to be spragged cumulation of gas, recent falls, "or any danin order to control them in hauling them to gerous conditions," to place a mark thereat the shaft. Plaintiff's duties, at the time of as notice to all men to keep out. The duties his injury, required him to stand at the place of the mine examiner, with respect to inspecwhere the track from the fifth north entry tion of the mine and noting its condition, are connected with the track in the main west found in section 21 of the act of 1911. Laws entry, and sprag the wheels of cars as they of 1911, p. 413. Paragraph 1 of that section came out of the fifth north entry on the makes it the duty of the examiner to extrack of the main west. A man named Os- amine the underground workings of the mine borne was hauling cars with a mule out of within 12 hours preceding every day on the fifth north entry, and, as he came out of which the mine is to be operated. Paragraph that entry to the incline, he spragged one 4 makes it his duty "to inspect all places of the rear wheels of the car, and called to where men are required in the performance plaintiff to catch the front end. Plaintiff, of their duties to pass or to work, and to understanding him to mean sprag the front observe whether there are any recent falls wheels, attempted to do so. The space in or dangerous roof or accumulations of gas which plaintiff had to work was on the south or dangerous obstructions in rooms or roador right-hand side of the track in the main ways." Paragraph 6 makes it the duty of west entry, and was from 22 to 3 feet wide the examiner, "when working places are disand from 8 to 10 feet long. This space then covered in which there are recent falls or narrowed at the east end by reason of the dangerous roof or dangerous obstruction, to close proximity of the track to the rib, so place a conspicuous mark or sign thereat as that there were only 6 or 7 inches between notice to all men to keep out." The act of the side of the car and the rib. Plaintiff 1907 uses the words "or other unsafe constooped over to sprag the front wheels, and ditions," "or any dangerous conditions," found they were solid wheels and could not while the act of 1911 uses the term "dangerbe spragged. He says he then realized that ous obstruction." Dangerous conditions Osborne intended him to jump on the front might exist from other causes than obstrucend of the car, and he started to straighten tions; but an obstruction may make a danup for the purpose of doing so, but by that gerous condition, and undoubtedly that is time the car had reached the narrow space the character of obstructions meant by the and he was caught and crushed. The evi- language used in the act of 1911. The decdence shows plaintiff was in his working laration in this case is based upon the theory place. He could not have performed his du- that obstructions, which rendered the mine ties from the north or left-hand side of the dangerous, were permitted in violation of the track, because that side of the track was ob- statute; and, whatever might be the effect of structed by piling gob, slate, and other ma- the late act upon cases that might be imaginterial from the track, sloping upwards al- ed arising under the former statute, the act most or quite to the roof. It cannot be said, of 1911 did not take away the right of action as a matter of law, that the negligence charg- in this case. People v. Zito, 237 Ill. 434, 86 ed in the declaration was not the proxi- N. E. 1041. mate cause of the injury. City of Joliet v. Shufeldt, 144 Ill. 403, 32 N. E. 969, 18 L. R. A. 750, 36 Am. St. Rep. 453. On the merits of the case, we think the trial court properly submitted it to the jury. [2] It is further insisted that the suit was based on section 18 of the mines and miners act of 1899 (Laws 1899, p. 317), as amended in 1907 (Laws 1907, p. 392), and that, by the general revision of said act in 1911, the provisions of section 18, upon which the suit was based, were repealed, and that under the authority of Holcomb v. Boynton, 151 Ill. 294, 37 N. E. 1031, and Vance v. Rankin, 194 Ill. 625, 62 N. E. 807, 88 Am. St. Rep. 173, the right of action was destroyed, and the judgment must be reversed. Para graph "a" of section 18 of the act of 1907 (Laws of 1907, p. 392) required the mine examiner to "inspect all places where men are expected to pass or to work, and observe whether there are any recent falls or obstructions in rooms or roadways, or accumulations of gas or other unsafe conditions." We have examined the errors assigned as to the rulings of the court in the admission of testimony and in giving and refusing instructions, and are satisfied that no reversible error was committed in either respect. We fully agree with the opinion of the Appellate Court in the treatment of these questions, and it would serve no useful purpose to enter upon a detailed discussion of them. The judgment of the Appellate Court is affirmed. 2. CORPORATIONS (§ 477*)—VALIDITY. Where, in an action to set aside a mortgage of a corporation, there was no evidence of authority given its president to execute it, and only one director took part in the execution, and there was not a sufficient number of directors present at a meeting of the board to confer such authority, the mortgage was invalid. [Ed. Note. For other cases, see Corporations, Cent. Dig. 88 1857-1863, 1865-1869; Dec. Dig. 477.*] Appeal from Superior Court, Suffolk County; John H. Hardy, Judge. Bill by Walter F. Frederick, receiver, against Carr F. Letteney to set aside a mortgage covering the tangible property of a corporation. It was alleged that the company was insolvent when the mortgage was executed. Mortgage held invalid, and defendant appeals. Affirmed. Lorenzo Cowan, of Boston, for appellant. Harry Bergson, of Boston, for appellee. service of an indorser, at whose solicitation he became connected with the transaction to enable his employer more effectually to enforce payment, all defenses are available against the plaintiff which are available against the indorser. [Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 1344-1351; Dec. Dig. $ 453.*] 3. BILLS AND NOTES (§ 362*)-INDORSEMENT. Despite Rev. Laws, c. 73, § 75, providing that, in the hands of any holder other than a holder in due course, a negotiable instrument is subject to the same defenses as if it were nonnegotiable, but a holder who derives his title through a holder in due course, not himself a party to the fraud, has the rights of such former owner, an indorser who, in the pursuance of his contract, takes up a note is not a purchaser of the holder's title, but remains a mere indorser. [Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 937-943; Dec. Dig. § 362.*] 4. EVIDENCE (§ 76*)-PRESUMPTIONS FAIL The failure of an indorser of a note, who took it up from a holder, to give evidence is sufficient to raise a presumption that he participated with the payee in the fraudulent negotiation of the instrument. [Ed. Note.-For other cases, see Evidence, Cent. Dig. § 96; Dec. Dig. § 76.*] FINDING. HAMMOND, J. [2] As to the execution of the mortgage the trial judge found as follows: "I find that under the eighth section of the bill * the mortgage was not executed by the corporation in accordance with its by-laws, and nothing appears upon | the face of the record as to what authority 5. BILLS AND NOTES (§ 520*) ACTIONS was given to the president of the corporation to execute the note or the mortgage. At the meeting of the directors who, under the bylaws and constitution, were the ones who managed the business affairs of the company, I do not find upon the evidence that more than one director took part in the execution of such mortgage, either by granting authority or by passing a vote whereby such mortgage was given. Inasmuch as there was not a sufficient number of directors present to confer such authority to execute the mortgage, such mortgage did not bind the corporation and is invalid." In an action on a note, evidence held not to show that the master's finding that the indorser participated in the payee's fraud was plainly wrong. [1] This finding, unless clearly wrong, must stand. Porter v. Howes, 202 Mass. 54, 88 N. E. 445. Upon a careful examination, the finding, especially that part relating to the number of directors present at the meeting, appears to be abundantly supported by the evidence. Decree affirmed with costs. BERENSON v. CONANT et al. (Supreme Judicial Court of Massachusetts. Suffolk. Feb. 27, 1913.) 1. BILLS AND NOTES ($ 497*)-ACTIONS-BURDEN OF PROOF. Where a note was obtained and negotiated through fraud of the payee, plaintiff had the burden of showing that he was the holder for value, without notice of any infirmity. [Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 1675-1687; Dec. Dig. § 497.*] 2. BILLS AND NOTES (§ 453*)-ACTIONS-DE FENSES. Where the plaintiff, in an action on a note, has no financial interest, but is in the Notes, Cent. Dig. §§ 1813, 1832, 1836, 1837; [Ed. Note.-For other cases, see Bills and Dec. Dig. § 520.*] 6. BILLS AND NOTES ( 143*)-CONTRACTS— RESCISSION. In an action on a note, where the maker to return worthless agreed in certain cases return of the stock to the master is a sufficient stock, and the payee absconded, the maker's compliance with the agreement to support his rescission. [Ed. Note. For other cases, see Bills and Notes, Dec. Dig. § 143.*] 7. APPEAL AND ERROR (§ 1017*)-REVIEWFINDINGS. Findings by the master, not plainly wrong, should not be set aside on appeal. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3996-4005; Dec. Dig. § 1017.*] Report from Superior Court, Suffolk County; Edward P. Pierce, Judge. Action by Bernard Berenson against William M. Conant and others. A pro forma decree was entered, dismissing the bill, and the case reported to the Supreme Judicial Court. Affirmed. Lee M. Friedman and Friedman & Atherton, all of Boston, for plaintiff. Boyd B. Jones and Hurlburt, Jones & Cabot, all of Boston, for defendant Conant. BRALEY, J. [1-3] The defendant's promissory note having been obtained and negotiated through the fraud and deceit of the payee, the plaintiff had the burden of satis fying the master that he was a holder for For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes The tion 75, and the same defenses which would value without notice of any infirmity. Fille- | pated, he is a party to the fraud under secbrown v. Hayward, 190 Mass. 472, 481, 482, 77 N. E. 45. The history of the note after it left the possession of the defendant shows, that upon indorsement by the payee and one Genaske it was discounted by the Boylston National Bank, and the payee's account credited with the proceeds. At maturity, the maker having refused payment, Genaske upon notice entered into negotiations with the bank which resulted in a transfer to the plaintiff. The master's findings, that the plaintiff has no financial interest, but is in the service of Genaske, at whose solicitation he became connected with the transaction to enable his employer, by whom the present suit is instituted and controlled, more effectually to enforce payment, subjects the plaintiff to all defenses which are available against Genaske himself. Jump v. Leon, 192 Mass. 511, 514, 78 N. E. 532, 116 Am. St. Rep. 265; Weld v. Clarke, 209 Mass. 9, 12, 95 N. E. 651. By the R. L. c. 73, § 75: "In the hands of any holder other than a holder in due course a negotiable instrument is subject to the same defenses as if it were nonnegotiable. But a holder who derives his title through a holder in due course, and who is not himself a party to any fraud or illegality affecting the instrument has all the rights of such former holder in respect to all parties prior to the latter." The bank, by the terms of the instrument, derived title through Genaske, who was the last indorser. Mulcare v. Welch, 160 Mass. 58, 61, 35 N. E. 97; Moore v. Cushing, 162 Mass. 594, 39 N. E. 177, 44 Am. St. Rep. 393. If as between himself and the bank the payment operated only to discharge his own liability arising from the contract of indorsement, he did not thereby become a purchaser of the bank's title within the meaning of this section, but remained an indorser with all the rights he previously had as against prior parties. Guild v. Eager, 17 Mass. 615; Shaw v. Knox, 98 Mass. 214; Symonds v. Riley, 188 Mass. 470, 74 N. E. 926; De Reiset v. Loughery, 205 Mass. 86, 91 N. E. 297; R. L. c. 73, § 138. [4, 5] It is however unnecessary to decide whether the right of recovery should be held to be grounded on a purchase of the bank's title under section 75, or on the rights of an indorser who has taken up dishonored commercial paper to pursue his remedy against the maker under section 138. The payee expressly agreed in writing, as one of the conditions of delivery, that the note should not [6, 7] It appears that the payee having be put in circulation until the defendant had absconded, the defendant, although making an opportunity to investigate the truth of the reasonable efforts, has been unable to tender representations as to the value of the shares to him the substantially worthless stock. of stock which constituted the consideration, But as he agreed not to negotiate the note, and if the representations were found to be and upon demand by the defendant to return false the stock was to be returned, and the it, and take back the stock, the defendant note surrendered. In violation of the agree- having left the certificates with the master ment the note was discounted on the day of for the plaintiff's use, has done under the its date. A fraudulent intent and purpose circumstances all that is possible by way of from the beginning on the part of the payee rescission. It moreover is reasonably cer |