satisfied that, under the evidence, the trial court applied to it the proper rule of law, and correctly granted the motion for nonsuit.

There can be no doubt but that the settled rule is that an employer must provide his employés with safe appliances with which to do the work for which they are engaged, that he must keep such appliances in reasonably safe condition, and that this is a personal obligation which cannot be delegated so as to relieve the employer from liability in not having done so. But there is no positive duty incumbent upon an employer to furnish such appliances to do the work as completed instruments. He may supply sufficient and suitable materials to the employés themselves out of which the appliances with which they are to work are to be constructed and adjusted by them, in which case the general rule that safe appliances shall be furnished by the employer-that is, that efficient and complete appliances shall be furnished by him-has no application. His obligation to his employés as far as furnishing such appliances is concerned, is satisfied when he furnishes suitable materials with which to construct them, and, under the terms of the contract of employment, either express or implied, the employés themselves are to do the constructing. In that event, the employer is not liable for an injury through a defect in the construction or adjustment of such appliances. Upon this subject it is said, in Callan v. Bull, 113 Cal. 603, 45 Pac. 1020: "The rule which requires the master to provide a safe place and safe appliances for the servant is applied when the place in which the work is to be done is furnished or prepared by the master, as in the case of a ship or a mill or a factory, or when the machinery or other appliances with which the servant is employed to work are furnished by the master; but it has no application when the place at which the work is to be done, or the appliances for doing the same, are to be prepared by the servant himself. If the appliance is furnished by the master for the purpose of enabling the servants to perform the work in which they are to be engaged, he is required to see that it shall be reasonably safe for that purpose; but, if the preparation of that appliance is a part of the work which the servant is required to perform, the master is not liable for any defect in its preparation. "The rule does not apply to a case where several persons are employed to do certain work, and by the contract of employment, either express or Implied, the employés are to adjust the appliances by which the work is to be done.' Burns v. Sennett, 99 Cal. 363, 33 Pac. 916." In Kerrigan v. Market Street Ry. Co., 138 Cal. 511, 71 Pac. 622, it is said: "Where certain persons are employed to do certain work, and by the contract of employment, either express or implied, such employés are to construct and adjust the appliances by which the work is to be done, the employer 83 P.-3

to furnish proper material and the employés to construct and adjust such appliances as in their judgment are necessary, the employer is not liable to such employés for any defect in the construction or adjustment of such appliances."

Now, it appears clearly from the evidence that the flasks necessary for making castings were not furnished as complete appliances by defendant. It did not assume to do so, and it is obvious that under its contract of employment with the employés, in the molding department of its business, it was not required that they should be so furnished, but, on the contrary, that they should be constructed by the employés of that department themselves. To that end it furnished good and sufficient material-lumber and iron. It is not questioned but that the employés whose duty it was to construct the flasks were competent workmen. No complaint is made that the carpenters in the molding department did not properly put together the woodwork of which the flask consisted, but only that the plate adjusted by them, and which was cast by the iron molders themselves, whose duty it was to cast it, was not a proper one to be used in making a particular casting. As, however, the defendant furnished not only the lumber and competent carpenters, but the pig iron for the making of these plates, and competent iron molders, as the plaintiff himself was, to cast them for use on the flasks, it is evident that, under the rule stated above, the defendant failed in no duty it owed the plaintiff, and that assuming the injury to plaintiff was occasioned as claimed by him, still it proceeded from the neglect of fellow employés to properly construct and adjust the flask from materials furnished the molders' department for that purpose.

It is claimed, however, by plaintiff that the carpenter shop was a separate and distinct shop or department from that portion of the molding department in which plaintiff was engaged, and that the foreman of the carpenter shop was not a fellow servant with plaintiff in the construction and adjustment of the flask in question. But it appears from the evidence in the case that this is not true in point of fact. The foreman of the carpenter shop, or, as under the evidence he might more properly be designated, the "boss carpenter," was not in the control of an independent department. The carpenter shop was strictly a part of the molding department, and its forèman was under the control and direction of O'Neill, the foreman of that department. O'Neill had control and supervision of the entire molding department, including therein, as a part thereof, the carpenter shop. It was as essential, in efficiently performing the work of casting, in which the molding department was exclusively engaged, that the flasks should be put together by the carpenter in that department for use by the iron molders therein,

as it was that the latter should prepare the molds in them and do the casting. The only work that was done in the carpenter shop was for the benefit and in aid of the molding department, particularly in the construction and adjusting of these flasks. And the making of these flasks was as much a part of the work of the molding department as was the making of the castings. But, were this not so, the department rule, relative to which counsel for appellant cites numerous decisions from other jurisdictions, does not obtain in this state. Our Civil Code (section 1970) lays down this general rule: "An employer is not bound to indemnify his employé for losses suffered by the latter in consequence of the ordinary risks of the business in which he is employed, nor in consequence of the negligence of another person employed by the same employer in the same general business, unless the negligence causing the injury was committed in the performance of a duty the employer owes by law to the employé, or unless the employer has neglected to use ordinary care in the selection of the culpable employé." In construing this section it was early said by this court that: "The law of this state respecting this subject, as set forth in the Code referred to, recognizes no distinction growing out of the grades of employment of the respective employés, nor does it give any effect to the circumstance that the fellow servant, through whose negligence the injury came, was the superior of the plaintiff in the general service in which they were in common engaged, and the alleged distinction in this respect insisted upon by the appellant's counsel, founded, as he claims, on the general principles of law and the adjudged cases, requires no examination at our hands." McLean v. Blue Point Gravel M. Co., 51 Cal. 258. To the same effect are Congrave v. Southern Pacific R. R. Co., 88 Cal. 361, 26 Pac. 175; Davis v. Southern Pacific R. R. Co., 98 Cal. 13, 32 Pac. 646; Noyes v. Wood, 102 Cal. 392, 36 Pac. 766; Livingston v. Kodiak Packing Co., 103 Cal. 264, 37 Pac. 149; and Donovan v. Ferris, 128 Cal. 53, 60 Pac. 519, 79 Am. St. Rep. 25. Within this rule, as declared by the Code, and construed by the authorities, the foreman of the carpenter shop was a fellow servant of the plaintiff. They were both in the employment of defendant in the molding department, both under the control of the general foreman of that department, O'Neill, and both engaged, not only in the general business of defendant, but in the particular business in which the molding department was exclusively engaged-casting. And the same rule applies to the foreman O'Neill, in as far as it is claimed that the defendant should be held responsible for his asserted negligence in failing to inspect the flask, the explosion of which occasioned the injury. If the positive duty rested upon defendant to supply completed and finished

flasks to the molding department, and inspect them as necessity for doing so arose, and the foreman O'Neill represented the defendant, as its vice principal, to discharge these duties of supply and inspection, his neglect would be no doubt that of the defendant. But, as we have seen, no such positive duty of furnishing the flasks in the completed state devolved upon the defendant. It furnished, as it had a right to do under the rule above stated, only the materials for such purpose, the task of constructing the flasks to be performed by its employés. Having furnished such materials, and competent workmen to construct the flasks, defendant fully discharged its duty to its employés. As it was not bound to furnish finished appliances, but discharged its duty by furnishing adequate materials for that purpose, it logically follows that it was not required to inspect the appliances after construction. The construction and inspection of such flasks were simply details in the proper execution of such work after ample provision made for its being safely done, and as to such details the foreman and the workmen in the department were fellow servants. Noyes v. Wood, 102 Cal. 389, 36 Pac. 766. The other cases cited immediately preceding bear also directly upon this point and illustrate the application of the rule.

We do not think any further discussion of this matter is necessary, nor to particularly consider additional points urged by respondent in support of the judgment of nonsuit, namely, that the evidence shows that there were on hand in the molding department, at the time the flask in question was selected, other flasks, which, taken in their entirety, were in good condition, and that, if any improper selection was made by the foreman or other employés, the defendant was not liable for such error in judgment; further, that the molder Drury was capable of determining, and should have inspected to ascertain, whether the flask in question was sufficient and safe, and that his failure to do so and to call the attention of the foreman of the department to the defective plate, or substitute a chuck therefor, or remove the rust from it with the oil at hand for that purpose, was negligence of a fellow employé of plaintiff, for which defendant was not responsible.

Whatever merit there may be in these points, we do not discuss, because under the settled rule of law which we have mainly considered, and which was the principal question discussed by counsel, defendant having furnished the materials out of which the appliances for use in the molding department were to be constructed, and the employés in that department being required to construct them from the materials so furnished, the safety appliance rule urged by appellant has no application, and the defendant was not liable for any injury resulting to plain

Where an attachment was dismissed before judgment for insufficiency of the affidavit, the attachment defendant had a right to sell, and the deputy sheriff who levied the attachment and the keeper of the property pending the attachment had a right to buy and sell to others, the attached property, and their act in joining in so doing before the rendition of judgment for plaintiff was not an actionable conspiracy for which plaintiff could recover damages resulting from her consequent inability to collect her judgment out of the property.

Department 2. Appeal from Superior Court, Los Angeles County; N. P. Conrey, Judge. Action by Ednah J. Menner against John R. Slater and others. From a judgment for defendants, plaintiff appeals. Affirmed.

MCFARLAND, J. A general demurrer to the complaint was sustained and judgment rendered for defendants, and from this judgment plaintiff appeals.

The purpose of the action is to recover of defendants the sum of $4,165 damages for an alleged conspiracy entered into by them to prevent plaintiff from collecting a certain judgment against defendant Horton for the above-mentioned amount of money. The main averments of the complaint are as follows: It is averred that plaintiff commenced an action against defendant Horton to recover of him damages for violation of certain contracts existing between him and plaintiff; that during the pendency of said action she had an attachment issued and levied upon certain personal property formerly belonging to the Putnam Furniture Company, a corporation, but alleged to belong at the time of the attachment to Horton; that said attachment was afterwards, and before judgment in said action, on motion "dismissed, upon the ground of insufficiency of the affidavit"; that after the discharge of the attachment, Horton sold the property for $2,000 to the defendants Slater and

Crossman, who afterwards, and before judgment in said action, sold it to one Goodspeed. It is averred that the property was of the value of $6,000, and that afterwards plaintiff recovered judgment in said action against Horton for $4,000. There is also something in the nature of an averment that Horton has no other property, which respondents claim to be insufficient as an averment of that fact; but for the purposes of this appeal we will consider it as sufficient. It is also averred generally that the above acts constituted a fraudulent conspiracy to prevent plaintiff from having her judgment against Horton satisfied on execution out of said property. It is also averred that the writ of attachment above mentioned was. placed in the hands of defendant Slater "as deputy sheriff," and was levied by him on the property, and that defendant Crossman was appointed by Slater as keeper of the property. The foregoing-leaving out of view certain general phrases which add nothing to the facts alleged-is a sufficient statement of the contents of the complaint for the purposes of this opinion. Respondents contend that many things claimed to be averred are not averred, and, particularly, that, under any view, there is no averment of any damage that is not too uncertain and conjectural to be considered; but, under our view, it is not necessary to discuss these contentions.

It is obvious that appellant had no lien of any kind on the property in question at the time it is alleged to have been sold by Horton to the other defendants. The attachment had been discharged. There was no judgment, and, of course, no execution lien. The appellant was merely a general creditor of Horton. She was in no position to claim any priority of right to the property. She had no lien to lose. Horton was, therefore, free to sell, and the other defendants free to buy, the property, for a valuable consideration; and a lawful act done by one person does not become unlawful because participated in by another person. An actionable conspiracy exists only where there is an unwarrantable combination of two or more persons to do an unlawful thing. We see nothing in the point made on the attempted averment that Slater was, in fact, a deputy sheriff. After the discharge of the attachment his functions as the officer who levied the attachment, if he was such officer, were ended. And so it is with respect to the keeper. It must be remembered that the purpose of this action is merely to recover damages for an alleged wrongful act. For these reasons the demurrer was, in our opinion, properly sustained.

The judgment appealed from is affirmed.

We concur: HENSHAW, J.; LORIGAN, J.

(148 Cal. 287)

CLYNE v. EASTON, ELDRIDGE & CO. (S. F. 3.120.)

(Supreme Court of California. Dec. 5, 1905.) 1. ATTACHMENT-DERTS-NOTICE.

A notice of attachment of "credits and effects" belonging to the defendant in the attachment suit creates no liability of the garnishee for a debt due to the defendant.

[Ed. Note. For cases in noint, see vol. 24, Cent. Dig. Garnishment, § 230.]

2. SAME EVIDENCE OF ATTACHMENT OF IN: DEBTEDNESS-CONCLUSIVENESS.

A pencil entry by the garnishee's bookkeeper on the margin of the account of the attachment defendant, and the statement of its president that the debt was attached as an excuse for refusing further payments, was evidence that the debt had been attached, but not conclusive evidence.

3. SAME-EFFICACY OF NOTICE-ESTOPPEL.

The refusal by a garnishee of further payments to the defendants in the attachment suit on the ground that the debt had been attached, and thereby securing an advantage to itself, cannot avail plaintiff as an estoppel to deny the efficacy of the notice, especially when the garnishee denies any indebtedness to the defendants in attachment, and an action by them is barred by limitations.

4. SAME-OBJECTIONS TO SHERIFF'S RETURN

RELEVANCY.

A garnishee is not required to appear in the attachment suit, and has nothing to do with the sheriff's return, unless it should be false in some particular which would subject him to liability beyond that warranted by the facts; and in a suit to recover an alleged indebtedness to the attachment defendants at the date of the attachment, where the garnishee relies on the sheriff's return as containing a true statement that he attached credits and effects, and not debts, he may properly object to the sheriff's return when offered in evidence as irrelevant. 5. SAME-SERVICE OF ATTACHMENT-LIMITA

TIONS.

Under Code Civ. Proc. § 544, providing that all persons having in their possession credits or other personal property belonging to defendant at the time of service of an attachment, unless such property be delivered up or transferred, or such debts be paid to the sheriff, shall be liable to the plaintiff for the amount of the credits, property, or debts until the attachment is discharged or any judgment recovered against him is satisfied, the running of the statutes of limitations in favor of a debtor is not interrupted by making him a garnishee, as such section applies only where the garnishee admits his indebtedness to the defendant in attachment or his possession of specific property of defendant.

6. PRINCIPAL AND AGENT AGREEMENT-CONSTRUCTION.

Where a subsequent agreement for the sale of land superseded a former agreement under which defendant had incurred all items of expense charged in the account to that date, and provided that all excess received over a named sum and all crop returns now in hand, or due on account of crops growing on the land for the year 1893, shall belong to defendant as compensation, no expenses incurred by defendant, nor any payment to or on account of the vendors prior to the second agreement, can be charged as a credit against its indebtedness arising on the subsequent sale of the land. 7. SAME-PERFORMANCE.

Where, under an agreement for the sale of land, defendant was to liquidate incumbrances, pay a named sum to the vendors, and retain the excess, by procuring a conveyance

to its clerk, it became bound by an implied agreement to pay off the incumbrances, with interest, and pay the vendors the stipulated sum, unless there was a subsequent modification of the agreement.

In Bank. Appeal from Superior Court, City and County of San Francisco; J. M. Seawell, Judge.

Action by James Clyne against Easton, Eldridge & Co. Judgment for plaintiff, and plaintiff appealed from a part of an order directing a new trial of the issues as to which findings were vacated, and defendant from the part which denied a new trial of the remaining issues. Affirmed as to so much of the order appealed from as granted a new trial, and reversed as to so much of the order as denied a new trial of the other issues. Rehearing denied January 4, 1906.

R. E. Houghton and Houghton & Houghton, for plaintiff. Jesse W. Lilienthal and Frohman & Jacobs, for defendant.

BEATTY, C. J. The trial of this cause in the superior court resulted in a judgment for the plaintiff. Defendant moved for a new trial, and its motion was granted as to some of the issues, but denied as to the others. Both parties appeal-plaintiff from that part of the order which directs a new trial of the issues as to which the findings are vacated, and defendant from the part which denies a new trial of the remaining issues. record is, of course, the same on both appeals, and they have been submitted together.

The

The salient facts of the case are that the defendant, a California corporation, prior to the 7th day of June, 1893, had written authority from Linnie W. Goodyear and her husband, H. C. Goodyear, to sell on commission 1,244.31 acres of land belonging to Mrs. Goodyear. The land was heavily incumbered by a first mortgage to the German Bank and by a second mortgage to one Kahn. The authority to sell provided for a sale of the land in separate tracts at a fixed minimum of price, and defendant was to receive a commission of 2%1⁄2 per cent. of the price so fixed, and also one-half of any excess received from sales of the property over and above the fixed price plus the expenses of surveying, platting, and advertising, which expenses it is clear from the whole tenor of the writing were to be borne by the defendant as a part of its undertaking to make the sales. The effort to dispose of the land upon the terms of this authorization having failed, it was superseded on the 7th of June, 1893, by a new one in the following terms:

"Whereas, on the 25th day of January, 1893, the undersigned entered into a contract with Easton, Eldridge & Company for the sale of certain real estate in the county of Solano, state of California; and, whereas, owing to the condition of the mortgages, it is absolutely necessary to sell the land as a whole: Now, therefore, it is agreed, and Easton, Eldridge & Company are hereby au

thorized to sell the land, viz.: 1,244 and 31/100 acres, more or less, for such sum as shall liquidate the present mortgage indebtedness, and in addition pay us the sum of twelve thousand dollars, and all excess received over and above that, as also all crop returns now in hand or due on account of crops growing on the land for the year 1893, shall belong to the said Easton, Eldridge & Company, and shall be held by them as a part of their compensation under this agreement of sale. Witness our hands this 7th day of June, A. D. 1893. [Signed] Mrs. H. C. Goodyear. H. C. Goodyear. Witness: [Signed] Geo. Easton."

Acting under this authority and some alleged oral modifications thereof, the defendant during the year 1893 sold the entire tract in two parcels, and out of the proceeds satisfied and discharged all the incumbrances thereon, including the mortgages above mentioned, and some other liens. The $12,000 claimed by the Goodyears, however, had not been paid in full, and there was a dispute between them and the defendant as to the balance remaining due upon the account, when, on the 10th day of August, 1894, the plaintiff in this action commenced an attachment suit in Solano county against Mr. and Mrs. Goodyear to recover, with interest, the sum of $6,805 due upon their promissory notes. Summons and attachment were duly issued in said suit, and on August 11th the attachment was placed in the hands of the sheriff of San Francisco for service. No return was made thereon until March 29, 1897at which date the following paper was filed in the office of the county clerk of Solano county:

"Office of the Sheriff of the City and County of San Francisco. By virtue of the annexed writ, I duly attach all moneys, credits, and effects belonging to the defendants named in said writ, or to either of them, by serving upon each of the hereinafter named parties, personally, in the City and County of San Francisco, at the times set opposite their respective names, a copy of said writ, with a notice. in writing notifying each of said parties, respectively, that such moneys, credits, and effects of said defendants, or either of them, was attached, and not to pay over or transfer the same to any one but myself. Statement demanded. The answers were as set opposite their respective names. Names of the parties served as aforesaid: Easton & Eldridge & Co., through G. Easton (Sec.); time of service, Aug. 11th, 1894, at 11:00 o'clock a. m.; answers, 'No funds.' Henry B. Shaw, Aug. 11th, 1894, at 11:15 a. m.; no answer. [Signed] John J. McDade, Sheriff, by J. J. McTieman, Deputy Sheriff."

After said writ of attachment was so served upon the defendant herein, on the 11th day of August, 1894, an entry was made in the margin of the ledger account, kept by said Easton, Eldridge & Co., in connection with the transactions under the contracts above mentioned, as follows: "Attach

ed August 11, 1894." And thereafter said Easton, Eldridge & Co. refused to make further payments on account of such transactions to H. C. Goodyear, or Linnie W. Goodyear, giving as the reason for such refusal, that it had been enjoined by the courts from paying over any more money. In the meantime Clyne had recovered a judgment in his attachment suit against the Goodyears for $7,532, with accruing interest. The date of said judgment was December 13, 1895, but execution thereon was not issued until June 28, 1897. This writ was served on the defendant herein on July 15, 1897. In response to the accompanying notice and demand, defendant denied any indebtedness to the Goodyears, and, subsequently, upon supplementary proceedings duly taken, appeared by its president before a referee appointed by the superior court of Solano county, where it again denied all indebtedness to the Goodyears exceeding $50, denied possession of any of their property, and also pleaded the statute of limitations (section 339, subd. 1) as a separate defense to any claim in their behalf. Upon the coming in of the referee's report to that effect, the court made an order in the case of Clyne v. Goodyear authorizing the institution of this action for the recovery of the alleged indebtedness of defendant to the Goodyears at the date of the attachment in said suit. In pursuance of this order, the original complaint was filed on the following day, July 30, 1897, but the case was not tried until the year 1899, and the pleadings as finally amended were filed after the trial. In his second amended complaint the plaintiff alleges, among other things, that on the 11th day of August, 1894, when his writ of attachment in the action of Clyne v. Goodyear was served on the defendant corporation, it was indebted to the Goodyears in the sum of $6,910.28, and that said debt was attached by the service of said writ. The defendant by its answer to said second amended complaint denied that the sheriff attached any debt due to the Goodyears. It also denied the existence of any debt at the date of the attachment, and along with other separate defenses (account stated and laches) pleaded the statute of limitations (sections 312, 325, and subdivision 1 of section 339, Code Civ. Proc.) in bar of the action. Upon these and other material issues the findings were adverse to the defendant.

In disposing of the plaintiff's appeal, we have to consider only the particular issues to which the order granting a new trial was limited, and which relate exclusively to the question whether the debt of the defendant to Mrs. Goodyear was really attached in August, 1894, as alleged by plaintiff and denied by defendant. These issues vitally affect the plea of the statute of limitations. For whatever may have been the amount of defendant's indebtedness to Mrs. Goodyear, resulting from the sale of hor