tween parties to the instrument may not be sustained against an assignee who has purchased for a valuable consideration. In this behalf he cites such cases as Mohr v. Byrne, 135 Cal. 88, [67 Pac. 11], and others holding that the purchaser of a chose in action takes in subordination to the existing equities of the parties to the original contract but not with implied knowledge of the claims of third parties of which the purchaser has no actual notice. But appellant contends that by becoming the owner of the record title by his purchase at the sale under the deed of trust he became not a "third party" as that term is used in the authorities cited, but a successor in interest of the mortgagor, entitled to assert all of the latter's equities against the mortgagee or his assignee. We think this contention must be sustained. This case comes within the principles announced in Meyer v. Weber, 133 Cal. 682, [65 Pac. 1110]. In that case the Webers had given a note and mortgage to the Woodbridge Canal and Irrigation Company in consideration of an agreement upon the part of the mortgagee to construct a ditch from its main canal to the land described in the mortgage. The Woodbridge Canal and Irrigation Company assigned this note and mortgage to the plaintiff and then became insolvent. The ditch was never built. Meyer sued to foreclose and this court held that the defense of failure of consideration was available against the assignee. After discussing the non-negotiability of the instrument, the court said: "The assignment and transfer of the note and mortgage in question, therefore, was without prejudice to any set-off or other defense existing in favor of the defendants Weber, the same as though there had been no assignment, and the action had been brought by the company to whom they were given. (Civ. Code, sec. 1459; Code Civ. Proc., sec. 638.) As the findings of the court show an utter failure of consideration as between the original parties, judgment properly followed in favor of the defendants." (See, also, Higgins v. McDonald, 17 Cal. 290.) If Edwards, the original mortgagee, had sued to foreclose the mortgage as against the Jones & Ryder Land Company, the original mortgagor, the partial failure of consideration would have been available as a defense, and it is equally potent in this action as between the successors of the original mortgagor and mortgagee. (AngloCalifornian Bank v. Field, 154 Cal. 516, [98 Pac. 267].) The

CLXII Cal.-5

rule is thus stated in 27 Cyc., p. 1324: "One about to take an assignment of a mortgage is bound in his own interest to inquire of the mortgagor as to the validity of the instrument and of the transaction on which it was founded and as to the amount due, and whether the mortgagor has any defenses or set-offs to interpose against it; if he neglects to do this he takes the mortgage subject to all infirmities or objections which could have been set up against it in the hands of the original mortgagee, being charged with knowledge of all facts which such an inquiry would have disclosed."

We do not think that because the agreement to build was a verbal one the force of the rule charging the assignee with knowledge of the equities is lessened. There is no provision of law that has been called to our attention requiring such a contract to be in writing. Where a consideration for a mortgage fails in whole or in part that fact is the essential matter to be established by the defendant in an action to foreclose or by the plaintiff in a cause like the one at bar. Whether the failure is due to breach of a written or a verbal agreement is immaterial. Even if, as respondent asserts, the agreement to build the house were one required to be in writing the court found that it was partially executed and in good faith, by the excavation of the cellar. This would take the transaction out of the statute of frauds.

We are of the opinion that even if, as the court found, Crawford took the mortgage without actual knowledge of the partial failure of consideration as between the original parties, he was charged with notice of the equities in favor of plaintiff. Nor was it necessary that notice be alleged in the complaint, as the facts were fully set forth showing the want of consideration for the original mortgage. In view of this conclusion it will be unnecessary to review appellant's argument based on the peculiar circumstances under which defendant took the assignment of this and another mortgage from his long absent client, by the latter's attorney in fact, for notes, supported by mortgages, amounting in all to about ten times. the just amount of his claim as found by the court. Nor need we consider the respondent's contention that an order denying a motion to set aside a judgment is not appealable.

The judgment is reversed with instructions to the lower court to enter a judgment to the effect that upon payment by

plaintiff of twenty-five dollars into court for the benefit of the defendant, the lien of the latter's mortgage be decreed to be satisfied.

Lorigan, J., and Henshaw, J., concurred.

Hearing in Bank denied.

[L. A. No. 2725. Department Two.-January 30, 1912.] A. MAJORS, Respondent, v. M. W. CONNOR and CONNOR & PERRY INVESTMENT COMPANY (a Corporation), Appellants.

NEGLIGENCE-MASTER AND SERVANT-INDEPENDENT CONTRACTOR-FALLING WALL. In an action by a brickmason to recover damages for personal injuries occasioned by the falling of a wall in course of construction, upon which he was working at the time of the accident, such fall being due to the collapse of faultily constructed sustaining piers, it is held, that the evidence was sufficient to justify the jury in concluding that the plaintiff was not an independent contractor, but was a servant of the defendants, within the meaning of section 2009 of the Civil Code. ID.-FELLOW-Servants-NEGLIGENCE IN FAILING TO PROVIDE SAFE PLACE TO WORK. In such action, where the plaintiff had nothing to do with the construction of the supporting piers, and was unaware of the method used in building them, the employer cannot escape liability on the ground that the injury was caused by the carelessness of a fellow-servant. The place upon the wall where the plaintiff was working at the time of the accident being unsafe, the negligence arising by reason of furnishing such a perilous place for the workman is chargeable directly to the master, even though the latter was without actual knowledge of the danger. ID.-FAILURE OF SERVANT TO INVESTIGATE CONDITIONS OF SAFETY.-Such a workman was not guilty of contributory negligence in failing to observe the faulty condition of the piers. If he was actually ignorant of the existing conditions he was under no obligation to investigate. ID.-EVIDENCE-CONTROL AND MANAGEMENT OF WORKMEN.-In such an action, questions asked the plaintiff and other witnesses, designed to show under whose control and management the men engaged upon the work were, were proper, and did not call for the conclusions of the witnesses.

ID. INSTRUCTIONS AS TO MANNER OF DOING WORK.-The plaintiff may also be asked whether he gave the man who built such piers any instructions how to build them. Such question calls for a fact, tending to support the plaintiff's theory that under his contract of employment he was a servant and not an independent contractor. ID.-EFFECT OF INJURY ON WORKING CAPACITY OF PLAINTIFF-EVIDENCE OF SON-EXPERT EVIDENCE.-The son of the injured mason, who was himself a mason and had worked with him before and since the accident, is qualified, both as an expert and as an intimate acquaintance, to testify as to the amount of work which his father could do at his trade after the accident as compared with that which he could accomplish before.

ID. REDIRECT EXAMINATION-DISCRETION.-It is within the discretion of the trial court to permit questions to be asked on redirect examination that are not strictly proper redirect examination.

APPEAL from a judgment of the Superior Court of Los Angeles County and from an order refusing a new trial. Walter Bordwell, Judge.

The facts are stated in the opinion of the court.

J. Wiseman Macdonald, for Appellants.

H. T. Gordon, A. P. Thomson, and F. McD. Spencer, and Thomson & Spencer, for Respondent.

MELVIN, J.-Plaintiff was injured by the falling of a brick wall in course of construction, upon which he was working at the time as a mason. The wall in question was a part of an addition to the Hotel Melrose in Los Angeles, and its fall was due to the collapse of faultily constructed piers on the north half of said addition. The Connor & Perry Investment Company was sued as the contractor, and defendant Connor as manager of said company. A verdict in favor of Majors, the plaintiff, for twelve hundred and fifty dollars was returned by the jury, and judgment was entered accordingly. From said judgment and from an order denying their motion for a new trial defendants appeal.

Two general propositions are stated by appellants as bases of their argument on this appeal. One is that the evidence without question proved plaintiff to be an independent cortractor. The other is that if he was not an independent

contractor, then his injuries were due to the negligence of his fellow-servants.

Regarding the terms upon which Majors was to work there was a conflict of evidence. It is not disputed that he was to employ the men to assist him in the brick work, and was to furnish the tools, wheelbarrows, mixing bins, and other things necessary for the use of the bricklayers and was to be paid a certain sum per thousand bricks laid as compensation for himself and his assistants. Nor is there any question that the materials used in the construction of the addition to the hotel were to be furnished by the defendant and that the bricklayers and laborers hired by Majors were to be actually paid by defendants from amounts due Majors under the contract. There is a sharp conflict, however, in the testimony of the witnesses who spoke with reference to the authority to direct the work. Connors said that he reserved no right of supervision nor dictation of the manner in which the work was to be done. He had a foreman named Crow whose duty, he said, was merely to see that Majors followed the proper lines in laying the foundations and erected the piers of the size and at the places indicated in the specifications. Plaintiff testified, however, that as a part of his agreement he was to do whatever Crow told him to do. At least three of the men employed on the building testified that they were working not under the supervision of Majors but were directed in their labors by either Crow or Connor. Majors also said that he worked under the directions of Connor or Crow. There was abundant evidence therefore to justify the jury in concluding that Majors did not occupy the position of an independent contractor, but that he was a servant, as that term is defined in section 2009 of the Civil Code. As counsel for respondent phrase it, "This was one of those simple work contracts often favored by close figuring owners who do their own building.

. . They adopt the device of buying so much labor in gross from a single workman, the latter taking the chance of thereby making a slight increase in his own day's wages." Even if the agreement as originally made could be considered as one whereby Majors became an independent contractor, nevertheless, Connor by assuming to direct the work either personally or through his foreman, took the responsibility upon himself and his co-defendant which might have rested otherwise upon