citizen in regard thereto. The remedy given by the act is intended to be adequate, and we see no reason why it may not be made so. The whole subject is put under the control of the court in the broadest terms, and, being one which concerns the public interest, may be treated with regard thereto, to the extent necessary, even to the reformation of the contract upon a basis just and equitable to both parties, where, as here, it was made in mutual mistake as to an essential fact, and a remedy for the difficulty may be found without violation of the main intent of both parties in the original instrument.

Decree reversed and bill dismissed with costs.

The borough of Du Bois passed an ordinance attempting to rescind its contract with the water company, as detailed in the principal case. The question of its right to thus rescind the contract having reached the supreme court, Mr. Justice Mitchell delivered the following opinion, the case being entitled United States Water Works Co. v. Du Bois, 176 Pa. St. 439:

"It was held in Du Bois v. Du Bois Water Works Co., 176 Pa. St. 430 [ante, p. 672], that the circumstances would not sustain the cancellation of the contract between those parties by a court of equity, and, of course, they would not justify one of the parties themselves in attempting a rescission. The ordinance of the borough was beyond its authority and wholly ineffectual for that purpose.

"But, even if the ordinance had been effective, the direction of a verdict for defendant could not be sustained. It is admitted that a considerable amount of water was supplied by the plaintiff, although it fell short of the contract quantity, and it was shown, or offered to be shown, that the defendant's servants and employés had used it, notwithstanding the ordinance rescinding the contract. For such use the borough is responsible. Even if the borough was authorized to rescind, it could not escape liability for continued use by its agents; it was bound not only to notify them to stop but to see that they obeyed.

"This is not a case for the application of the rule as to entire contracts. Neither the thing to be furnished nor the consideration to be pald was single and indivisible. The plaintiff is entitled to go to the jury on the value of the service actually rendered, measured by the contract price for the service stipulated.

"Judgment reversed and venire de novo awarded."

CONTRACTS-RESCISSION IN EQUITY.-Courts of equity cancel contracts for false representations of material facts which constitute an inducement to the contract, and upon which the party had a right to rely: Rorer Iron Co. v. Trout, 83 Va. 397; 5 Am. St. Rep. 285, and note. See the discussion of this subject in the extended note to Hough v. Hunt, 15 Am. Dec. 572.

CONTRACTS-RESCISSION FOR INABILITY TO PERFORM.Promises, honestly made, which the promisor cannot fulfill, do not furnish sufficient grounds for vacating a contract based thereon: Arnold v. Hagerman, 45 N. J. Eq. 186; 14 Am. St. Rep. 712, and note. CONTRACTS-RESCISSION FOR MUTUAL MISTAKE.-The party against whom a contract, made under a mutual mistake of material facts, cannot be specifically enforced is in general entitled to rescind: Newton v. Tolles, 66 N. H. 136; 49 Am. St. Rep. 593, and note. Where certain facts are assumed by both parties as the basis

of a contract, and it subsequently appears such facts did not exist, the contract is inoperative: Fink v. Smith, 170 Pa. St. 124; 50 Am. St. Rep. 750. See, also, the extended note to Mills v. Stevens, 43 Am. Dec. 631-634.

PRESCOTT V. BALL ENGINE COMPANY.

[176 PENNSYLVANIA STATE, 459.]

MASTER AND SERVANT-DUTY TO EMPLOYES-NEGLIGENCE-FELLOW-SERVANTS.-The duty of an employer is to provide a safe place in which his employés may work, suitable materials, tools, and machinery to use while at work, reasonably competent fellow-servants with whom to work, and such instruction to the young and inexperienced as may be necessary to warn them against the peculiar dangers incident to the kind of work in which they are to be engaged. But he is not liable to them for injuries due to their incompetency, or carelessness, or to the negligence or malice of their coemployés.

MASTER AND SERVANT-DUTY AND NEGLIGENCE OF SERVANT.-An employé must use his senses in all that relates to his employment, and exercise attention and care in the selection of materials from the mass provided for general use, and in the manner of their general use, and to provide with reasonable diligence for the safety of himself and his coemployés in his management of his own share of the work to be done.

MASTER AND SERVANT-CONTRIBUTORY NEGLIGENCE. If a workman, whose duty it is to select material for his use from a stock furnished by his employer or a vice-principal, through haste, carelessness, or mistake in judgment, selects unsuitable and unsafe material, while suitable and safe material is in the stock furnished, or if, being suitable when selected, it is so attached to machinery by him as to render it unsafe, and either he or his fellow-servant is, from either of these causes, injured, the party injured is guilty of contributory negligence, and has no cause of action against his employer or the vice-principal.

MASTER AND SERVANT-VICE-PRINCIPALS.--A workman in a manufactory, whose duty is to maintain a good and suitable supply of material from which other workmen may select material for their own use, is a vice-principal, and not a fellow-servant of such workmen.

WITNESSES-COMPETENCY.-In an action to recover for personal injury, a fellow-servant is competent to testify as to the custom or usage of the manufactory in which he is employed, so far as such matters rest on his own knowledge.

Trespass to recover for personal injury. Plaintiff, while employed in defendant's manufactory, and engaged in hoisting a heavy piece of machinery, was injured by the breaking of a rope used on the work. Another employé, known as a rigger, ordered and kept, as was his duty, a supply of ropes for use in the manufactory. It was the duty of plaintiff and his fellow-workmen to select from such supply, ropes suitable for the work in hand. One Hill, a fellow-servant with the plaintiff, selected the rope

in use at the time of the accident and injury to plaintiff. Judgment in the court below in favor of plaintiff, and defendant appealed.

J. M. Sherwin and S. A. Davenport, for the appellant.

T. A. Lamb, E. P. Gould, and E. A. Walling, for the appellee.

463 WILLIAMS, J. Whose was the negligence from which the plaintiff in this case suffered? Was it that of the defendant company or that of a coemployé? This was the controlling question on which the plaintiff's right to recover depended. It was presented to the court by the defendant's points, numbers 1, 2, 3, 5, and 6, the anwers to which are complained of by the assignments of error numbered from 13 to 17 inclusive. The duty of the employer is to provide a safe place in which his employés may work, suitable tools and machinery to use while at work, reasonably competent fellow-servants with whom to work, and such instruction to the young and inexperienced as may be necessary to warn them against the peculiar dangers incident to the kind of work in which they are to be engaged. He must also furnish them with suitable materials for use: Ross v. Walker, 139 Pa. St. 49; 23 Am. St. Rep. 160. But he is not liable to them for injuries due to their incompetency or carelessness, or to the negligence or malice of their coemployés. The duty of an employé is to use his senses in all that relates to his employment, to exercise attention and care in the selection of materials 464 from the mass provided for the general use, and in the manner of their general use, and to provide with reasonable diligence for the safety of himself and his coemployés in his management of his own share of the work to be done. In other words, he is bound to bring his mind, as well as his limbs, into the service of his employers, so far as it may be necessary to enable him to exercise a reasonable degree of care over the interests of his employer and the safety of his coemployés and himself. If, through carelessness or because of a mistake in judgment, the rope selected for use on this occasion was unsuitable for the purpose for which it was wanted, or if, being suitable, it was so negligently or carelessly put upon the shaft as to be cut and weakened unnecessarily, and the accident was due to either of these causes, it is clear that the plaintiff had no cause of action. The jury must find the existence of these two facts before they will be justified in rendering a verdict in favor of the plaintiff, viz: 1. That there was no better rope in the stock on hand from which the workmen had a right to select

than the one that was selected in this instance; and 2. That the failure of the rope selected was not due to the manner in which it was put upon the shaft, but to the insufficiency of the rope itself to answer the purposes for which it was offered to the workmen. We see no reason to doubt that the rigger was a vice-principal, and as such charged with the duty of keeping ropes on hand, some of which should be at all times suitable for use. But it was not his duty to select the rope to be used on each occasion when a rope was wanted. If good ropes were in stock, and a poor one was used because of haste, or carelessness, or mistake in judgment, it was not the fault of the rigger as vice-principal, but of the workmen themselves; and the injury suffered because of the use of the unsuitable rope could not give the injured person a cause of action against his employer. In the nature of things, the ropes will wear from using. In a few months they become worn so badly as to be unsafe for heavy work, while they might be entirely safe for that which is lighter. Such ropes are not to be at once removed from reach, but their use must be left to the experience and judgment of those by whom the work is to be done. Care must be exercised according to the circumstances by the employé, as well as the employer, up to a reasonable degree, and a failure to 465 exercise such reasonable care is a failure in duty. It is, therefore, negligence. The answers complained of did not furnish the jury with a clear and distinct statement of the rule; and the errors assigned to them are sustained. The fifth assignment should also be sustained. The witness Stahl had testified that he selected from the stock of ropes just such slings as he chose when he was employed with the pulley, and was asked, "Was it the same with the other workmen as to their right to get slings as you did"? He replied, "Yes, sir, they were"; and then added, "The foreman told me so." The whole answer objected to, and the evidence was excluded. So far as the answer of the witness rested on his knowledge of the usage of the shop, it was competent. If he knew the practice among the men was to select such a sling as they supposed was needed for the work to be done at the time, he had a right to say so. It was clearly the duty of the workmen to make such selection, unless a particular sling was provided for each particular piece of work and they were required to use it. If this was required, it was the duty of the plaintiff to show it. It was important for the defendant to show no more than that a sufficient number of slings was provided for the use of the workmen, and that some of them, accessible at all times, were of sufficient strength

was

for the support of a weight, such as was handled at the time the accident occurred. If a poor one was used when a good one was within reach, this was negligence, and, whether chargeable to the plaintiff or to a coemployé, it relieves the defendant from all liability for the injury sustained.

The errors pointed out require us to reverse this judgment. A venire facias de novo is awarded.

MASTER AND SERVANT.-THE DUTY OF A MASTER TO HIS SERVANT requires the exercise of reasonable care in furnishing suitable machinery and appliances for carrying on the business in which the servant is employed, and in keeping such machinery and appliances in repair, including the duty of making inspection and tests at proper intervals: Nord Deutscher etc. S. S. Co. v. Ingebregsten, 57 N. J. L. 400; 51 Am. St. Rep. 604, and note. The duties which the master cannot assign include the exercise of reasonable care to see that tools, appliances, and machinery, and the place where the servant works, are reasonably safe, and that the servant is informed of special dangers of his situation and of the machinery and appliances upon which he is employed: Norton v. Volzke, 158 Ill. 402; 49 Am. St. Rep. 167.

MASTER AND SERVANT-DUTY OF SERVANT TO USE CARE. The relation of master and servant requires each to exercise ordinary and reasonable care; the master to use such care in providing and maintaining suitable means and instrumentalities with which to conduct his business, that the servant, exercising due care, may be enabled to perform his duty without exposure to dangers not falling within the obvious scope of his employment: Wormell v. Maine Cent. R. R. Co., 79 Me. 397; 1 Am. St. Rep. 321, and note.

FIRST NATIONAL BANK V. PELTZ.

[176 PENNSYLVANIA STATE, 513.]

BANKS AND BANKING-APPLICATION OF DEPOSIT TO PAYMENT OF NOTE.-While a bank which is the holder of a note, and has on deposit at the time of maturity a sum to the credit of any party liable to it on the note sufficient to pay it, and not previously appropriated by the depositor to be held for a different purpose, may apply the deposit to the payment of the note, yet it is not in general bound to do so. The cases where the right becomes a duty on the part of the bank rest on the special equity of the party, usually the indorser, to have the payment enforced against the depositor as the one primarily liable. In such cases, the deposit must be sufficient at the time of the maturity of the note, and must be to the credit of the party primarily liable.

BANKS AND BANKING—APPLICATION OF DEPOSIT TO PAYMENT OF NOTE.—If a note is made payable to the order of the payee, who indorses it, and, after procuring a third party to indorse it for his accommodation, discounts it at a bank, and it is not paid at maturity, such third party indorsing it cannot, in an action against him thereon by the bank, prove as a defense that shortly after the maturity of the note, and at other times thereafter, the bank had a