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Here an additional burden is cast upon the redemptioner, whereby his right to redeem is subjected to the payment of a sum of money greatly in excess of that required of him under the statute which conferred the right upon him. To require a party to perform an act at a time different from that required by a former statute is a difference only in point of time, and may be said to affect the remedy only; but to require him to pay a sum of money greatly in excess of that required by a former statute is to impose upon him a burden having no relation to the remedy. In Hillebert v. Porter, 28 Minn. 496, 11 N. W. 84, it was held that a law which increased the rate of interest to be paid on redemption of a pre-existing mortgage could not be upheld. What the state could sell under the tax sale was limited by what the purchaser could purchase, and that was the right to have the title subject to the owner's right to redeem upon the payment of a given sum of money at any time before the state parted with its interest in the property. This right of redemption became a condition of the contract of purchase, and could not, in reason or justice, be ignored or changed by a subsequent statute, any more than the sale itself. It was an essential element of the contract of sale, and not a mere naked right, to be changed or abridged as a mere matter of public policy. Though intimately connected with the remedy, it was not a part of the remedy, but a substantive right preserved to the redemptioner, and equally sacred with those acquired by the purchaser, which latter rights it limited. It was a right of property remaining in the former owner after the exhaustion of the remedy by sale, and the statute which (passed after the sale) seeks to impair this right, by adding new burdens to its exercise, is violative of constitutional guaranties. We recommend that the judgment appealed from be affirmed.

We concur: BRITT, C.; BELCHER, C.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment appealed from is affirmed.

(116 Cal. 527)

RUSSELL v. PACIFIC CAN CO. (S. F. 615.) (Supreme Court of California. April 22, 1897.) MASTER AND SERVANT NEGLIGENCE - DUTY TO

Department 1. Appeal from superior court, city and county of San Francisco; John Hunt. Judge.

INSPECT.

was

Defendant furnished at its factory a watercloset, into the vault of which hot steam was discharged for sanitary purposes. The steam exhaust pipe, as constructed, turned downward, and entered cold water in the vault. Plaintiff, -an employé,-while using the closet, scalded by the steam. After the accident the end of the steam exhaust pipe was found to point directly upward. Defendant had not inspected the closet since its construction, four years before. Held, that the failure to inspect was negligence.

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GAROUTTE, J. The appellant is a corporation engaged in conducting a factory for the manufacture of tin cans and other articles. Nora Russell, a minor and employé, brings this action, in the name of her guardian ad litem, for damages for personal injuries received. The jury found in her favor, and assessed the damages at the sum of $2,500. The corporation appeals from the judgment and the order denying a new trial. The general facts to be considered may be briefly stated as follows: The plaintiff, a girl of 14 years, was an employé of the defendant, and upon the day of the accident, being the first day of her employment, was working for the defendant at its place of business in the city of San Francisco. Upon the premises there was a certain outhouse or water-closet provided for the use of employés. In connection with its business the defendant used and employed steam power, and had constructed and maintained an exhaust steam pipe which ran into said closet, and discharged steam immediately beneath the place where persons using said outhouse or water-closet were in the habit of sitting. While the plaintiff was in the act of using said closet, steam and hot water came through said exhaust steam pipe into said outhouse, immediately beneath the person of said plaintiff, whereby she was seriously scalded and burned. The steam was conducted to this place for sanitary purposes, and such arrangement had been in use for more than four years. Cold water was also emptied into the vault of this closet by means of a pipe, and when the end of the exhaust steam pipe penetrated the cold water there was no danger from the hot steam. The end of the exhaust pipe consisted of an elbow 18 inches in length, claimed by defendant to have been so placed as to extend directly downward to within 15 or 18 inches of the bottom of the vault. Immediately after the accident the place was examined, and it was found that the aforesaid elbow of the exhaust steam pipe pointed directly upward. The foregoing facts either appeared from the evidence of plaintiff's witnesses, or were admitted by defendant's pleading, save the position of the elbow of the exhaust pipe at the time of the accident; and its position, as pointing upward rather than downward at that time, was shown by the evidence of the defendant.

Defendant insists that its motion for a nonsuit was improperly denied, and also insists

that the evidence, as a whole, is insufficient in law to make a case for plaintiff. Of .course, if plaintiff's case is strengthened by defendant's evidence to the extent that, when finally submitted, it is strong enough to support a verdict, even though inherently too weak to accomplish that result when a nonsuit was denied, then a denial of the nonsuit is harmless error. And here, if it appears from all the evidence in the record that a case for plaintiff is made out, then the action of the court in refusing the nonsuit is not reversible error. With these principles in view, we pass the consideration of the question of nonsuit, and come directly to the examination of the bill of exceptions, with a view to testing the sufficiency of the evidence, taken as a whole, in supporting the verdict of the jury. In addition to the facts we have quoted, it further, appeared that this steam pipe had been connected with the closet for some four years immediately prior to the accident, and that no examination of the closet had been made by defendant during that time. No question of contributory negligence is involved, and the case, upon its face, addresses itself to the single interrogatory, does the evidence indicate negligence upon the part of the defendant?

Plaintiff was an employé of defendant. It was defendant's duty to furnish her a closet reasonably safe. This it failed to do, but, on the contrary, furnished her a closet the use of which was accompanied with the greatest danger. There is no question but that the closet furnished plaintiff was not suitable for the purposes intended, and it was not suitable by reason of the fact that it was not safe. It may be stating the proposition too strongly to say defendant was bound to furnish a closet which could be used with safety; but, to be strictly within the law, we say defendant was bound to use reasonable and ordinary care in the selection of the closet furnished this plaintiff, and we think it plain the jury were justified in finding that such care was not used. Steam is a dangerous element to be used, under any circumstances; and we here find a closet, furnished by defendant for the use of plain- | tiff, into which steam had been emptied for a period of four years, and no inspection of its condition had been made during that entire time. A failure to examine the closet, in view of the fact that hot steam was being constantly, more or less, discharged into it, was sufficient to justify the jury in holding defendant guilty of negligence. Certainly the defendant was bound to furnish a closet that was not inherently and ordinarily dangerous, and this was not such a one. Defendant furnished a closet that, in effect, it had not seen for four years. Even if it should be conceded that an employer is not bound to know the condition of a defective appliance furnished his employé, still, as matter of fact, a jury will be justified in holding

him guilty of negligence in furnishing an appliance he has not seen in four years' time. It is no answer to a charge of negligence to say that "four years ago I constructed that appliance, and it was then in perfect condition." The wear and tear of use, or of time alone, should be guarded against by the exercise of some degree of care upon the part of the employer. A stage company furnishing its driver with a stage which it had not seen for four years would be guilty of negligence justifying damages to him, if the stage gave way by reason of its defects, however perfect its condition four years before; and such recovery would be based upon the fundamental principle of a lack of ordinary care upon the part of the employer in selecting and furnishing the appliance to be used by the employé. And the principle in the case here under consideration is no different than if injury to this plaintiff had been produced by the giving way of the boards of the closet, or the caving in of the vault. It would be no answer to say that "four years ago I built the closet, and it was then in perfect condition." This appliance was furnished plaintiff upon the day of the accident, not at the date of its construction. It was furnished plaintiff at a time when defendant absolutely knew nothing of its condition. When the elbow of the pipe was changed from a downward to an upward direction is unknown. The evidence is not at all conclusive that it ever pointed downward. The builder of it did not testify, and no man ever saw it pointing in that direction. It undoubtedly was the intention of the defendant that it should be so constructed, but the evidence is not at all convincing that such was the fact. But whatever may be the true theory as to the fact we think immaterial, for the jury were justified in holding the defendant guilty of negligence in furnishing an appliance the condition of which it did not know, an appliance which it had not seen for the period of four years. The principles of law here discussed are elementary, and for that reason no extended citation of authority has been made. The application of the facts to those principles, however, is plain and conclusive. As defining the duty of the master to his servant, the court of appeals of New York in Ryan v. Fowler, 24 N. Y. 414, said: "The location of the privy in a dangerous place made it more imperatively his duty to see to it that its foundations were made and kept sound and safe beyond contingency. He had no right to expose the female operatives of his factory to risks and danger in such a place. was his duty to know that the privy was safe, and that the operatives for whom it was designed and provided might resort to it without personal risk, or peril to life or limb. aft It was provided for her use. It was the master's duty to see that it was safe and secure, and not hers to watch and guard, by any particular vigi

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CHIPMAN, C. This is an appeal from the final judgment given in favor of the plaintiff upon foreclosure of certain four mortgages of real estate. The appeal is taken on the ground, as claimed in appellants' brief, that the clause in each of the notes secured by the mortgages, respectively, relating to interest, was illegal and void, in attempting to give a penalty for nonpayment of interest, and that the decree is excessive, and for an amount beyond what the plaintiff was rightly entitled to recover. One of the notes bears interest at 10 per cent. per annum, and three bear interest at 11 per cent. per annum, payable in each case semiannually. In each of said notes the following provision is found: "If any installment of interest be not paid when due, the amount of such installment shall bear interest at 20 per cent. per annum from the time the same was due until paid; or, at the option of the holder of this note, in default of payment of interest at the times herein provided the whole sum-principal and interest-shall be due and payable." Demurrer to the complaint was interposed and overruled, but defendants failed to answer, and their default was entered. No point is urged on the demurrer. The notes were all past due when the action was commenced. Appellant contends: First. The deferred in

stallments of interest cannot bear a greater rate of interest than the principal debt. Second. If interest is allowed on deferred installments, by implication it must be limited to the legal rate. Third. If the penalty clause in the notes is void, no interest on deferred payments of interest can be recovered.

1. Appellant relies in support of his first contention upon the provision of section 1919, Civ. Code, as construed in the case of Society v. Horton, 63 Cal. 105, and Dean v. Applegarth, 65 Cal. 391, 4 Pac. 375. It is claimed that these cases decide that it is not competent for the parties to contract that interest upon interest can be legally enforced or fixed beyond the rate to be borne by the principal. Section 1919 reads as follows: "The parties may, in any contract in writing whereby any debt is secured to be paid, agree that if the interest on such debt is not punctually paid, it shall become a part of the principal, and thereafter bear the same rate of interest as the principal debt." It is replied by respondent to the point that the cases upon which appellant relies "do not seem to have been elaborately argued, or the question carefully considered, * and we may consistently say that, if not directly overruled, they are rejected as barren." The question is an important one, and should be definitely settled, if it has not been. The case of Society v. Horton, supra, is not fully reported. The provisions of the note are not given, nor is the scope of the complaint stated. No synopsis of the briefs is given, nor are the facts stated in the opinion. The opinion is rendered per curiam, and two of the justices dissented, but upon what grounds does not appear. It was a default decree, and was reversed because in excess of the claim made in the complaint. The opinion concludes as follows: "The attention of the court below is directed to section 1919 of the Civil Code, in computing interest upon the interest which is not punctually paid. That section declares that the parties may agree that it shall become a part of the principal, and thereafter bear the same rate of interest as the principal debt. [Italics are in the report.] This appears to us to be the limit." There was a petition for rehearing denied. It would seem fair to conclude that the note there in question at least provided for payment of interest upon interest at a rate greater than that fixed for the principal; but whether it provided also, as in the notes here in question, that the interest upon the interest was not to become a part of the principal, but to run independently of the interest on the principal, cannot be assumed. The case of Dean v. Applegarth, supra, was more fully reported. The terms of the note are stated to be “that the principal was to bear interest at one per cent. per month, and it was agreed that, in case default should be made in the payment of any of the interest as stated above, that

such installment or payment thus in default should bear interest from the day of maturity until payment at the rate of two per cent. per month, compounding monthly." It was also provided that at any time during such default the entire unpaid balance of the principal sum should, at the option of the holder of the note, and not otherwise, become due and payable, and the principal sum so due and payable should bear interest thereafter at the rate of 2 per cent. per month, compounding monthly until paid. When the action was commenced the note, by its terms, had become due, and it did not appear from the complaint that any option was made in any way by plaintiff (mortgagee) prior to the commencement of the action, at which time the note by its terms was due. As to the interest on the principal sum compounding at the increased rate of 2 per cent., the court said the provisions of the note did not apply, because the option had not been exercised, except by bringing the suit after the maturity of the note. The court said: "As to the interest on interest in default, when default was made in the payment of any monthly installment it had become due and payable. No election was required to make that so. The plaintiff, under the contract, had a right to have such installment unpaid bear interest. But it cannot be made to bear interest at a rate greater than that borne by the principal debt (Civ. Code, § 1919), which in this case is one per cent. per month. This is the construction placed upon section 1919 of the Civil Code in Society v. Horton, 63 Cal. 105. The section 1918 of the Civil Code is limited by section 1919. The latter section applies specifically to agreements to pay interest on interest, and its particular words cannot be controlled by the general language of the preceding section, which refers to a different subject, and can have full application without affecting the provisions of the section which follows it." The decision of the court below was reversed because more interest was allowed than should have been. In the case in 63 Cal., supra, Mr. Justice Thornton and Mr. Justice Myrick dissented; but in the case in 65 Cal. and 4 Pac., supra, Mr. Justice Thornton delivered the opinion, in which Mr. Justice Myrick concurred. We must therefore assume that the dissent in the earlier case was on other grounds, and that the point under discussion was presented in both cases, and duly considered.

The provisions of the notes in the particular now being examined are apparently the same. In both cases the interest on the defaulted interest was to bear interest until paid at the increased rate, and was not, by the terms of the notes, to become part of the principal sum. The rule laid down in Dean v. Applegarth has stood unquestioned in this court since 1884, so far as I have been able to discover, until the case of Thompson v. Gorner, first decided in department (1894; 36 Pac. 434),

and finally in bank (104 Cal. 168, 37 Pac. 900), in which respondent claims a different rule was laid down. In the case just referred to the note provided as follows: "* with interest thereon [the principal sum] * afe ** from the date hereof until paid at the rate of eight per cent, per annum, payable monthly in advance; and, if said principal or interest is not paid as it becomes due, it shall thereafter bear interest at the rate of one per cent. per month." So far as the question here presented is concerned, the provisions of this note differ from the notes in the case at bar. The provision of the notes in this case is: "If any installment of interest be not paid when due, the amount of said installment shall bear interest at twenty per cent. per annum from the time the same was due until paid"; the interest on the principal sum being ten per cent. in one, and eleven per cent. in the others. In the case of Thompson v. Gorner, supra, the provisions are that, "if said principal or interest is not paid as it becomes due, it shall thereafter bear interest at the rate of one per cent. per month." It is not entirely clear as to whether the additional interest is to be com puted on defaulted interest or defaulted principal. The opinion in the department was written by Mr. Commissioner Searls, and in bank by Mr. Justice McFarland. A careful reading of both opinions will fail to disclose that interest upon interest was claimed or allowed. The court in bank allowed "judgment for the amount of the principal and interest thereon from and after February 20, 1892, at one per cent. per month." Interest had been paid at 8 per cent. up to that date, and accepted by the plaintiff (the holder of the note); and the court held that acceptance of the interest was a waiver of any claim for additional interest prior to that time, but not as to the future. It is to be observed, however, that neither the learned justice nor the learned commissioner referred to section 1919. Civ. Code, nor to the case in 63 Cal. supra, nor the case in 65 Cal. and 4 Pac., supra, nor does it appear that the attention of either was called to that section in the briefs of counsel. "Plaintiff's points and authorities were very meager, covering only one page and referring only to the question of penalty." Mr. Justice McFarland, 104 Cal. 170, 37 Pac. 901. I think, if this case had been intended to overrule Society v. Horton and Dean v. Applegarth, some mention of that fact would have been made, and, if a new interpretation of section 1919 had been intended, that fact would have been disclosed. Attention is also drawn by respondent to a recent opinion by Mr. Commissioner Britt in the case of Finger v. McCaughey, 45 Pac. 1004, 114 Cal. 64. In that case the note read: "With interest from date at the rate of ten per cent. per annum, provided this note is paid at maturity; but, if not paid at maturity, then it shall bear interest at the rate of twelve per cent. per annum from its date until paid; and, if the interest is not paid at the end of one year from date,

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it shall become a part of the principal, and bear twelve per cent. interest per annum." In this case counsel for appellant called attention to section 1919, Civ. Code, and to the cases in 63 and 65 Cal. and 4 Pac., supra, and claimed that, by the terms of the note, it precludes anything but simple interest at the rate of 10 per cent. per annum. Respondent cited Thompson v. Gorner, 104 Cal. 168, 37 Pac. 900, as deciding adversely to appellants' contention. The learned commissioner said: "It is competent for the parties to agree upon an increased rate contingent upon nonpayment of either principal or interest when due,"-citing Thompson v. Gorner, supra. We see no substantial ground for distinguishing this case from that; and the court gave compound interest for one year only at the increased rate of 12 per cent. In both cases last above referred to the notes provided: (1) In the case of Thompson v. Gorner, the provision was that, if the principal or interest is not paid as it becomes due, it shall thereafter bear interest at the rate of 1 per cent. per month. The decree may well be assumed to have covered interest on the principal only. (2) In the case of Finger v. McCaughey, the provision was interest from date at 10 per cent. per annum, provided the note is paid at maturity, but, if not paid at maturity, then it shall bear interest at 12 per cent. from its date until paid; and, if the interest is not paid at the end of one year from date, it shall become part of the principal, and bear 12 per cent. interest per annum. I do not think that the precise question decided in Society v. Horton and Dean v. Applegarth is necessarily involved in either one of the two later cases just examined; nor do I think that the provisions of the notes in these two later cases are the equivalent of the provisions of the notes now before us. In the two later cases it may well be said that, upon the con. tingency named (nonpayment of principal when due), it (the principal) shall bear the increased rate of interest. It is a part of the contract as to payment of the principal, and is as much to be regarded as the part relating to the lower rate. Both rates are given; one to be in one event, and the other in another. But in the case before us it is the defaulted interest that must bear the increased rate, while the rate on the principal remains unaffected and unchanged. Now, it was exactly this provision in Dean v. Applegarth that the court said was prohibited by section 1919. This section, said the court, "applies specifically to agreements to pay interest on interest, and its particular words cannot be controlled by the general language of the preceding section, which refers to a different subject," etc. It will be noticed that, if the construction given to the note in Finger v. McCaughey be correct, that the principal, by its terms, bore 12 per cent. per annum,-then it is not obnoxious to this section; for the defaulted interest was to bear only 12 per cent., and this the section expressly permitted to be done. The section is not designed to restrict the rate of interest

that may be agreed upon as to the principal,this has no limit (section 1918),-but it is aimed at rates of interest greater than those fixed for the principal to bear, and declares that the parties may agree that, if the interest is not punctually paid, it may become a part of the principal, and thereafter (not before) may bear the same rate of interest (no more) as the principal debt.

The respondent calls attention to the fact that section 1919 is taken bodily from the statute of 1850 (1 Hitt. Gen. Laws, § 3858), and was adopted for the simple purpose of legalizing compound interest; citing the note of the code commissioners. This need not be questioned. To say that, when interest is not paid when due, it shall become a part of the principal, and thereafter bear like interest with the principal,-which is the usual form, is strictly within the section, and is compound interest. But to say that the principal shall bear 10 per cent. interest per annum, and, if not so paid, it-the interestshall thereafter bear 20 per cent., is what is here attempted, but is what this court has said cannot be done, as the law now stands. It is not a question as to penalties. It is a question as to the right to contract to this effect. Section 1918, Civ. Code, provides that "parties may agree in writing for the payment of any rate of interest, and it shall be allowed, according to the terms of the agreement." But the legislature has placed this limit upon the power to agree as to interest, to wit, that the rate of interest upon interest, or compound interest, shall not be greater than that fixed upon the principal. Section 1918 presupposes an indebtedness which is the principal. As to that, any rate of interest, however extortionate or unconscionable, may be agreed upon by the parties. Boyce v. Fisk, 110 Cal. 107, 42 Pac. 473. But, as to the interest yet to be earned, no rate of interest on that shall be still higher, or any higher. Counsel for respondent, with much seeming force, say: "If section 1919 really forbids the placing of a higher rate on the interest than originally stipulated for the principal, unless at the same time the rate on the principal is increased, the two last referred to decisions [meaning Society v. Horton and Dean v. Applegarth] have consigned its prospective power to technical operation upon one, and probably the least unconscionable, of a thousand and one devices to secure prompt payment of the compensation for the use of the money, or as damages for its detention, or for the creditor's forbearance, all of which devices, with this one solitary exception, are indorsed by the courts as legal and binding." The obvious reply to this is that we have no concern with the law, except to rightly interpret it as we find it. If we have not yet reached the point in legislation to adopt laws against usury, and if we still permit agreements to be made for the payment of 10 per cent. per month, or any other unconscionable per cent. per month interest on the money loaned, it would seem

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