Nichols, 133 Pa. 438, 19 Atl. 422. The authorities are numerous that, when the deed is only the fulfillment in part of the article, the covenants are not merged in the deed, though it is executed, delivered, and accepted. Neither any rule of evidence nor the rule as to a merger of a preliminary contract in the deed of conveyance debars the plaintiff from alleging and procuring the true consideration for the sale, and that through mistake the consideration was incorrectly stated in the deed. Wilson v. Pearl, 12 Pa. Super. Ct. 66. It is admissible to prove the true contract, and that part of it was omitted from the writing by mistake. And this can be proved by the scrivener, and by the admissions and declarations of the vendee, deceased at the time of the trial. Schotte v. Meredith, 192 Pa. 159, 43 Atl. 952. In 19 Pepper & Lewis' Digest of Decisions, column 32,573, can be found many cases that are exceptions to the general rule that the execution and acceptance of a deed of conveyance, is a consummation of all previous agreements between the parties, and the articles of agreement may be given in evidence to show that their conditions have not been complied with. In Byers v. Mullen, 9 Watts, 266, there was a deed and a receipt in full for the consideration money. The article of agreement showed that the vendee had agreed to pay off a certain judgment. It was offered in evidence, but rejected by the court because merged in the deed. Held to be error, and that the vendee could show notwithstanding the deed that the vendor had not complied with the article of agreement. Harbold v. Kuster, 44 Pa. 392, the article of agreement contained a reservation of the grain in the ground, but the deed subsequently given contained no mention of such reservation. It was held that there was no merger, and that the agreement could be enforced.

In

"Taking the facts of this case and applying the law as we find it, we are convinced that the article and deed are not contradictory, and that both can stand, one the fulfillment of the other. It would have been better to have included all the covenants of the article in the deed, but by the mistake of the scrivener they were left out. This was unfortunate, but should be allowed to overthrow the true agreement between the parties."

Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ.

Joseph A. Langfitt, W. A. McAdoo, and H. W. McIntosh, for appellant. M. F. Leason and C. E. Harrington, for appellee.

PER CURIAM. The judgment is affirmed on the discussion and conclusion of law by the court below.

(81 Vt. 471)

PLOOF v. PUTNAM. (Supreme Court of Vermont. Chittenden. Oct. 2, 1908.)

1. TORTS (8 3*)-OBLIGATION VIOLATED.

While plaintiff and his wife and children were sailing, a violent tempest arose, whereby the boat and occupants were placed in great danger, and, to save them, plaintiff was compelled to moor the boat to defendant's dock. Defendant, by his servant, unmoored the boat, whereupon it was driven on shore by the tempest without plaintiff's fault, and destroyed, and plaintiff and his wife and children were cast into the water and upon the shore, and injured. Held, that plaintiff was entitled to recover.

[Ed. Note.-For other cases, see Torts, Dec. Dig. § 3.*]

2. TORTS (§ 26*)-PLEADING-DESCRIPTION OF WRONG.

A complaint alleging these facts stated a good cause of action, though it did not negative the existence of natural objects to which plaintiff could have moored with equal safety; the details of the situation creating the necessity of mooring to the dock being matters of proof which it was unnecessary to allege.

[Ed. Note. For other cases, see Torts, Cent. Dig. 33; Dec. Dig. § 26.*]

3. MASTER AND SERVANT (§ 329*)-MASTER'S LIABILITY FOR INJURIES TO THIRD PERSONS -ACTS OF SERVANT-SCOPE OF EMPLOYMENT.

The declaration having alleged in one count that defendant, by his servant who was in charge of the dock, willfully and designedly unmoored the boat, and in the other that defendant by his servant negligently, carelessly, and wrongfully unmoored it, sufficiently showed that the servant was acting within the scope of his employment.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 1269; Dec. Dig. § 329.* !

Exceptions from Chittenden County Court; Seneca Haselton, Judge.

Action by Sylvester A. Ploof against Henry W. Putnam. Heard on demurrer to declaration. Demurrer overruled, and declaration adjudged sufficient, and defendant excepted. Judgment affirmed, and cause remanded.

MUNSON, J. It is alleged as the ground of recovery that on the 13th day of November, 1904, the defendant was the owner of a certain island in Lake Champlain, and of a certain dock attached thereto, which island and dock were then in charge of the defendant's servant; that the plaintiff was then possessed of and sailing upon said lake a certain loaded sloop, on which were the plaintiff and his wife and two minor children; that there then arose a sudden and violent tempest, whereby the sloop and the property and persons therein were placed in great danger of destruction; that, to save these from destruction or injury, the plaintiff was compelled to, and did, moor the sloop to defendant's dock; that the defendant, by his servant, unmoored the sloop, whereupon

it was driven upon the shore by the tempest, without the plaintiff's fault; and that the sloop and its contents were thereby destroyed, and the plaintiff and his wife and children cast into the lake and upon the shore, receiving injuries. This claim is set forth in two counts one in trespass, charging that the defendant by his servant with force and arms willfully and designedly unmoored the sloop; the other in case, alleging that it was the duty of the defendant by his servant to permit the plaintiff to moor his sloop to the dock, and to permit it to remain so moored during the continuance of the tempest, but that the defendant by his servant, in disregard of this duty, negligently, carelessly, and wrongfully unmoored the sloop. Both counts are demurred to generally.

There are many cases in the books which hold that necessity, and an inability to control movements inaugurated in the proper exercise of a strict right, will justify entries upon land and interferences with personal property that would otherwise have been trespasses. A reference to a few of these will be sufficient to illustrate the doctrine. In Miller v. Fandrye, Poph. 161, trespass was brought for chasing sheep, and the defendant pleaded that the sheep were trespassing upon his land, and that he with a little dog chased them out, and that, as soon as the sheep were off his land, he called in the dog. It was argued that, although the defendant might lawfully drive the sheep from his own ground with a dog, he had no right to pursue them into the next ground; but the court considered that the defendant might drive the sheep from his land with a dog, and that the nature of a dog is such that he cannot be withdrawn in an instant, and that, as the defendant had done his best to recall the dog, trespass would not lie. In trespass of cattle taken in A., defendant pleaded that he was seised of C. and found the cattle there damage feasant, and chased them towards the pound, and they escaped from him and went into A., and he presently retook them; and this was held a good plea. 21 Edw. IV, 64; Vin. Ab. Trespass, H. a, 4, pl. 19. If one have a way over the land of another for his beasts to pass, and the beasts, being properly driven, feed the grass by morsels in passing, or run out of the way and are promptly pursued and brought back, trespass will not lie. See Vin. Ab. Trespass, K. a, pl. 1. A traveler on a highway who finds it obstructed from a sudden and temporary cause may pass upon the adjoining land without becoming a trespasser because of the necessity. Henn's Case, W. Jones, 296; Campbell v. Race, 7 Cush. (Mass.) 408, 54 Am. Dec. 728; Hyde v. Jamaica, 27 Vt. 443 (459); Morey v. Fitzgerald, 56 Vt. 487, 48 Am. Rep. 811. An entry upon land to save goods which are in danger of being lost or destroyed by water or fire is not a trespass. 21 Hen. VII, 27; Vin. Ab. Trespass,

Adams, 113 Mass. 376, 18 Am. Rep. 500, the defendant went upon the plaintiff's beach for the purpose of saving and restoring to the lawful owner a boat which had been driven ashore, and was in danger of being carried off by the sea; and it was held no trespass. See, also, Dunwich v. Sterry, 1 B. & Ad. 831.

This doctrine of necessity applies with special force to the preservation of human life. One assaulted and in peril of his life may run through the close of another to escape from his assailant. 37 Hen. VII, pl. 26. One may sacrifice the personal property of another to save his life or the lives of his fellows. In Mouse's Case, 12 Co. 63, the defendant was sued for taking and carrying away the plaintiff's casket and its contents. It appeared that the ferryman of Gravesend took 47 passengers into his barge to pass to London, among whom were the plaintiff and defendant; and the barge being upon the water a great tempest happened, and a strong wind, so that the barge and all the passengers were in danger of being lost if certain ponderous things were not cast out, and the defendant thereupon cast out the plaintiff's casket. It was resolved that in case of necessity, to save the lives of the passengers, it was lawful for the defendant, being a passenger, to cast the plaintiff's casket out of the barge; that, if the ferryman surcharge the barge, the owner shall have his remedy upon the surcharge against the ferryman, but that if there be no surcharge, and the danger accrue only by the act of God, as by tempest, without fault of the ferryman, every one ought to bear his loss to safeguard the life of a man.

It is clear that an entry upon the land of another may be justified by necessity, and that the declaration before us discloses a necessity for mooring the sloop. But the defendant questions the sufficiency of the counts because they do not negative the existence of natural objects to which the plaintiff could have moored with equal safety. The allegations are, in substance, that the stress of a sudden and violent tempest compelled the plaintiff to moor to defendant's dock to save his sloop and the people in it. The averment of necessity is complete, for it covers not only the necessity of mooring, but the necessity of mooring to the dock; and the details of the situation which created this necessity, whatever the legal requirements regarding them, are matters of proof, and need not be alleged. It is certain that the rule suggested cannot be held applicable irrespective of circumstance, and the question must be left for adjudication upon proceedings had with reference to the evidence or the charge.

The defendant insis's that the counts are defective, in that they fail to show that the servant in casting off the rope was acting within the scope of his employment. It is said that the allegation that the island and

imply authority to do an unlawful act, and that the allegations as a whole fairly indicate that the servant unmoored the sloop for a wrongful purpose of his own, and not by virtue of any general authority or special instruction received from the defendant. But we think the counts are sufficient in this respect. The allegation is that the defendant did this by his servant. The words "willfully, and designedly" in one count, and "negligently, carelessly, and wrongfully" in the other, are not applied to the servant, but to the defendant acting through the servant. The necessary implication is that the servant was acting within the scope of his employment. 13 Ency. P. & Pr. 922; Voegeli v. Pickel Marble, etc., Co., 49 Mo. App. 643; Wabash Ry. Co. v. Savage, 110 Ind. 156, 9 N. E. 85. See, also, Palmer v. St. Albans, 60 Vt. 427, 13 Atl. 569, 6 Am. St. Rep. 125. Judgment affirmed and cause remanded.

Nov. 17, 1908.) WILLS (8 788*)-ELECTION-SUFFICIENCY OF WAIVER BY SURVIVING HUSBAND "AS A WIDOW MAY WAIVE PROVISIONS OF WILL."

Pub. St. § 2935, provides that a husband may waive the provisions of his wife's will when she dies without issue "as a widow may waive the provisions of her husband's will." Section 2925 (3) requires that the widow shall notify the court in writing of her election under her husband's will within eight months after the will is proved, or after letters of administration have been granted. Held, that a verbal notification of waiver made to the probate court by the attorney for the husband where the will was presented for probate was insufficient, where it was not followed by the filing of a written waiver within the time allowed by the statute. [Ed. Note. For other cases, see Wills, Dec. Dig. $788.*]

Appeal from Probate Court, Washington County; Alfred A. Hall, Judge.

Petition by Sarah J. Baker's administrator to the probate court to determine the validity of the election of William A. Baker, surviving husband of decedent, to waive the provisions of decedent's will. From a judgment of the county court affirming a judgment of the probate court sustaining such waiver, Muncie Gregg and another, heirs of decedent, appeal. Reversed and rendered.

R. W. Hurlburd, for appellants. Geo. W. Wing, for appellee.

TYLER, J. The county court by agreement of parties, heard the case upon the facts found by the probate court, and affirmed its decree. The probate court heard and decided the case upon the facts set forth in the petition of the administrator of Wm. A. Baker's estate made to that court in November, 1905, and upon the evidence produced in its support. The petition alleges, in substance, that

Mrs. Sarah J. Baker died in February, 1904, leaving a will in which certain provisions were made for her husband Wm. A. Baker, who survived her; that, when the will was presented for probate, the husband, by his attorney, gave notice of his intention to waive the provisions of the will made in his behalf and take his statutory rights in lieu thereof; that, the said Wm. A. being sick and unable to attend court, his attorney, at his request, drew a formal waiver for him to sign; that he duly executed it and sent it by mail to the attorney to be filed in the probate court; that the attorney received it, and took it to the probate court at the time he filed an application by the husband for the appointment of an administrator upon his wife's estate, and supposed the waiver was filed with that paper until after the husband's death which occurred in April, 1904, when he learned that it had never been filed. The probate court found the fact that the waiver was never filed in that court, and that it never came to the knowledge of the court. It also found that its loss had been duly proved, and held that the husband intended to waive the will and did waive it, and made a decree accordingly.

Section 2935, Pub. St., provides that a husband may waive the provisions of his wife's will when she dies leaving no issue, "as a widow may waive the provisions of her husband's will." But section 2925 (3) Pub. St., requires that the widow shall notify the court in writing of her election to make such waiver, and that the waiver shall be made within eight months after the will is proved, or after letters of administration have been granted upon his estate, or in such other time as the court in its discretion allows. It was held in Re Peck's Estate, 80 Vt. 469, 68 Atl. 433, that the words, "as a widow may waive the provisions," means "in the same manner." That case is also decisive that notice of such election must be given to the probate court within eight months unless the time is extended by the court. In the present case, as the waiver was not filed in said court nor brought to its knowledge, and no extension of time was granted or prayed for, the statute was not complied with, and there was in law no waiver. An intent to waive the provision of the will made known only by signing the paper was not sufficient. The acts of the husband and his attorney did not constitute an election, as a matter in pais, to waive the provisions of the will. In re Peck's Appeal, 80 Vt. 487, 68 Atl. 433.

The parol notice by the husband to the probate court at the time he presented the will for probate of his intention to waive the will can have no force; for, if for no other reason, the time when a waiver could be made had not then arrived.

Judgment reversed, and judgment that there was no waiver by William A. Baker in

1. WITNESSES (§ 181*)-COMPETENCY-TRANSACTIONS WITH DECEASED PERSON-WAIVER OF OBJECTION.

An administrator may waive the provisions of P. S. § 1590, that, when an administrator is a party, the other party shall not testify in his own favor except in certain cases, and permit the adverse party to testify.

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. 88 727, 728; Dec. Dig. § 181.*] 2. WITNESSES (§ 181*)-COMPETENCY-TRANSACTIONS WITH DECEASED PERSONS-WAIVER OF OBJECTION.

Evidence held to support a finding that an administrator waived the incompetency of plaintiff to testify in his own behalf respecting his claim against the estate before the commissioners thereon.

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 727, 728; Dec. Dig. § 181.*] 3. WITNESSES (§ 181*)-COMPETENCY-TRANSACTIONS WITH DECEASED PERSONS-WAIVER OF OBJECTION.

The waiver of plaintiff's incompetency as a witness before the commissioners bound the administrator on appeal to the county court.

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 727, 728; Dec. Dig. § 181.*] 4. EXECUTORS AND ADMINISTRATORS (8 451*)

ACTIONS-DIRECTION OF VERDICT.

In an action by decedent's son against the administrator to recover for services rendered decedent, where there was evidence that the son returned to the home farm to carry it on, and care for his father, upon a mutual understanding between them that the son was to be paid for his services, a directed verdict for the administrator was properly refused.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. & 1879; Dec. Dig. § 451.*]

5. WITNESSES (§ 268*)-CROSS-EXAMINATION.

In an action against an administrator by decedent's son for board and services rendered decedent, where plaintiff claimed that there were mutual transactions between himself and decedent, and had stated an annual account, crediting decedent each year with supplies furnished which were deducted from plaintiff's annual charge for decedent's board, and plaintiff's wife testified that decedent had furnished certain things towards his board, it was error to refuse to allow her to be asked on cross-examination whether she had ever seen any book upon which those things were charged or credited to ascertain the source and extent of her knowledge of the matter about which she had testified.

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. § 932; Dec. Dig. § 268.*]

Exceptions from Addison County Court; Willard W. Miles, Judge.

Proceedings for settlement of the estate of Josiah Cowles. From the allowance by the commissioners thereon of a claim of J. E. Cowles, the administrator appealed to the

county court, where there was judgment for claimant, and the administrator excepted. Reversed and remanded.

J. B. Donoway and J. E. Cushman, for plaintiff. Davis & Russell, for defendant.

TYLER, J. This is an appeal by the administrator of Josiah Cowles' estate from the allowance by the commissioners thereon of a claim in favor of the plaintiff. Assumpsit in the common counts. Pleas, the general issue and statute of limitations.

He did

1. At the trial in the county court the plaintiff offered himself as a witness to prove the items in his specification. not claim that he was a competent witness under any exception to P. S. 1590, but he did claim that the defendant had waived the provisions of the statute by calling him as a witness at the hearing before the com. missioners. The defendant objected to his testifying upon the ground that he was barred by the statute, and he testified under the defendant's exception. It was competent for the administrator to waive the statute, and permit the plaintiff to testify. Ainsworth v. Stone, 73 Vt. 101, 50 Atl. 805. In Paine v. McDowell, 71 Vt. 28, 41 Atl. 1042, the oratrix called the defendant as a witness, and proved by him the making of the contract, in controversy with a party who had deceased. Held that she thereby waived her right to object to him for incompetency when he was subsequently called by the other side. See Linsley v. Lovely, 26 Vt. 123. If there was a waiver and the plaintiff became a competent witness, it was by reason of the following facts that the evidence tended to show: The firm of Davis & Russell, attorneys, had been employed by two of the four heirs to the estate to appear at the hearing before the commission

ers.

Russell appeared in that capacity, but was not employed by the administrator. The plaintiff having stated his claim and the arrangement and understanding that existed between him and the intestate, Russell requested that he be sworn, which was done, when Russell examined him generally as to the nature and extent of his claim and as to the understanding and arrangement claimed by him to have existed. It appeared that the administrator was present when the plaintiff was sworn and heard him testify; that he made no objection; that the plain. tiff's testimony was generally about his ac count; that the administrator made no inquiries and directed none to be made of the plaintiff with reference to his claim; that he did not employ Russell until after the hearing and then about taking an appeal; that the appeal was taken at the instance of the two heirs whom Russell represented. The court found that the plaintiff was used as a witness before the commissioners at the

request of the defendant, and held that the statutory bar to his testifying was waived, and that he was therefore competent to testify as a witness in his own favor. Mr. Russell represented the interests of two of the four heirs. The administrator represented the interest of all the heirs therefore to an extent the attorney and the administrator represented the same interests. They were alike interested to resist the plaintiff's claim; for, if it were allowed, the distributive shares of the heirs would be diminished. The apparent purpose of Russell's examination of the plaintiff was to gain information concerning his claim, so that the estate might be prepared to defend against it. In this the administrator and Russell had a common interest. By the common-law rule a married woman was incompetent to testify for or against her husband in a civil action, but it is laid down in Wig. on Ev. § 2242 (3), that a failure to object upon the calling of the wife to the stand is equivalent to consent. In Benson v. Morgan, 50 Mich. 77, 14 N. W. 705, a married woman had sued a firm in which her husband was concerned and called him as a witness in her favor. Held that consent was implied from the defendant's presence in court and failure to object. As was said by the court in Ainsworth v. Stone, supra: "The statute is for the benefit of the representatives of the deceased party, and only prohibits a party from being a witness in his own behalf when the other party to the contract or cause of action in issue and on trial is dead. It does not prohibit the representative of the deceased party from waiving the statute, and calling the other party to the contract to testify in his favor." There was no error in the finding that the administrator consented to the plaintiff's testifying before the commissioners; for there was evidence tending to support it.

2. The waiver of the incompetency of the plaintiff as a witness in proceedings before the commissioners bound the defendant in the hearing on appeal. Green v. Crapo, 181 Mass. 55, 62 N. E. 956, is authority on this point. There the plaintiff testified without objection in the probate court to a privileged communication between himself and the defendant. In the trial in the superior court objection was raised to the plaintiff's testifying in his own behalf, but the court ruled that the, objection had been waived, and the testimony was admitted. The Supreme Court sustained the ruling, saying in the opinion: "The privacy for the sake of which

3. There was evidence tending to show that the plaintiff returned to the home farm to carry it on and take care of his father, the intestate, upon a mutual understanding between them that the plaintiff was to be paid for his services. Therefore the defendant's motion for a verdict was properly overruled. Robinson v. Larabee, 58 Vt. 652, 5 Atl. 512.

4. The plaintiff introduced his wife as a witness, and she testified that certain things were furnished by the intestate towards his board, which the plaintiff claimed were included in the transactions between himself and the intestate, and which he claimed should go into the adjustment of the accounts between them. The witness testified that in the six years prior to the death of the intestate he turned in one pig, half a beef, and tea and coffee towards his support. She was not inquired of in her direct examination whether these items were made the subject of a book account, nor whether any account or memoranda of the several items and transactions were kept by the parties. On cross-examination the defendant inquired of her whether she had ever seen any book upon which these items were charged or credited. The question was objected to by the plaintiff, and excluded by the court upon the defendant's refusal to inform the court of the purpose of the inquiry. The plaintiff claimed that there were mutual transactions between himself and the intestate. In his specification, which is referred to in the exceptions, he states an annual account and credits the intestate each year with potatoes, pork, beef, tea, and coffee to the amount of $24.50, aggregating in the six years-1901 to 1906, inclusive $195.56, which he deducts from the amount of his annual charges for the same time for boarding the intestate, keeping and use of his horse, and work performed, $1,512.49. The answer given by the plaintiff's wife in her direct examination related to the items claimed by the plaintiff to have been furnished by the intestate and tended to establish the plaintiff's claim of mutual transactions. The question asked her by the defendant's counsel and excluded was in the line of proper cross-examination for the purpose of ascertaining the source and extent of her knowledge of the matter about which she had before testified.

For the error in denying the right to cross-examine, the judgment must be reversed and cause remanded.