in substantial compliance with the terms of the proposition, when the bonds were sold by the county and the proceeds were paid to a corporation which Wiley had organized for the express purpose of constructing the irrigating canal which he had proposed to construct. It is generally known that works of that nature are undertaken by corporations rather than individuals, and in the present instance it was most likely understood, when Wiley entered into negotiations with the precinct, that he had already organized, or would organize, a corporation to undertake the work. At all events, if there was a departure from the terms of the proposition, which was regarded by the people of the precinct as at all material or detrimental to their interests, they should have taken the proper steps, in due season, to arrest the issuance and sale of the bonds and to compel a delivery thereof to Wiley in person, if they so desired. It would be manifestly inequitable to permit the municipality to take advantage of the irregularity complained of at this late day, after the bonds have been certified by the secretary of state and the auditor of public accounts as lawfully issued, and after the bonds have been sold and the proceeds paid to the municipality, and after it has levied taxes to pay the interest thereon for 10 years or more (thereby giving them currency in the market), without complaint from any one. These facts estop the municipality from complaining of such an irregularity as the one now under consideration, even if the plaintiff below is not in a position to claim protection from the recitals in the bond, and from the certificate made by the secretary of state and the auditor of public accounts, to the effect that they had been issued according to law. Supervisors v. Schenck, 72 U. S. 772, 781, 782, 18 L. Ed. 556; Clay Co. v. Society for Savings, 104 U. S. 579, 591, 26 L. Ed. 856; State v. Goshen Tp., 14 Ohio St. 569, 587; Society for Savings v. City of New London, 29 Conn. 174, 193; Leavenworth, L. & G. R. Co. v. Douglass Co. Com'rs, 18 Kan. 169, 185, 186; Washington Co. v. Williams, 49 C. C. A. 621, 11 Fed. 801, 807, 808. Finding no error in the proceedings below which would warrant a reversal, the judgment below is hereby affirmed. NEAL V. M. E. SMITH & CO. (Circuit Court of Appeals, Eighth Circuit. April 21, 1902.) No. 1,627. 1. PARTNERSHIP-RETIREMENT OF MEMBER-NOTICE TO RELIEVE FROM LIABIL ITY FOR FUTURE DEBTS. It is the duty of a retiring member of a partnership to notify all those with whom the firm has had dealings of the change in its membership, if he would avoid liability for debts subsequently contracted, and the burden rests upon him to prove such notice. 2. SAME-NOTICE TO AGENT OF CORPORATION. A statement by a member of a mercantile partnership that he had bought out his partner, made to a traveling salesman for a corporation engaged in the wholesale business, which had previously sold goods to the firm, will not charge the corporation with notice of a change in its membership, when the business name remains the same, so as to relieve the retiring member from liability for goods subsequently sold by it without actual knowledge of the change, where the salesman was employed solely to take orders for goods, which were sent to his employer for acceptance or rejection, and he was charged with no duty and given no authority with respect to the giving of credit or to ascertain and report changes in the membership of firms with which the corporation did business. In Error to the Circuit Court of the United States for the Southern District of Iowa. George S. Wright and John N. Baldwin, for plaintiff in error. Before CALDWELL, SANBORN, and THAYER, Circuit Judges. THAYER, Circuit Judge. This was a suit by M. E. Smith & Co., a mercantile corporation, against Martin Neal and William W. Cushman, as copartners, trading under the firm name of the Charter Oak Mercantile Company, on an open account for about $2,600, being the alleged value of goods which were sold by the plaintiff corporation to the defendant firm. The defendant Martin Neal sued out a writ of error to reverse the judgment which was recovered against him in the lower court. The defense which Neal made was that he retired from the aforesaid firm in the month of March, 1898; that notice was given to all persons with whom that firm had previously dealt of his retirement; that such notice was given to the plaintiff company; and that the goods sued for were sold after his retirement from the firm. The lower court withdrew the case from the jury, holding that there was not sufficient evidence to warrant a finding that notice of Neal's withdrawal from the firm had been given to the plaintiff company before the goods were sold. There was testimony introduced at the trial which tended to show that on April 9, 1898, one of the plaintiff's traveling salesmen by the name of Tracey called at the place of business of the Charter Oak Mercantile Company at Charter Oak, Iowa, and solicited Cushman to order some goods; that in the course of this interview Cushman said that he had been buying most of his goods in Chicago; that if you (Tracey) can do as well by me as they do I probably might give you an order; and that he had "bought Mr. Neal out now," and was running on his "own hook." The testimony to this effect was given by the defendant Neal, who claimed to have been standing by, and to have overheard the conversation between Tracey and Cushman. The other defendant, Cushman, testified that in August, 1898, he was in the city of Omaha, where the plaintiff company did business; that Tracey took him into the plaintiff's place of business, and introduced him to a Mr. Burgess, who was the plaintiff's credit manager, as "Mr. Cushman, of Charter Oak, the 'whole cheese,' he said, of the Charter Oak Mercantile Company." The goods, as it seems, on account of which the suit was brought, were sold at various times subsequent to May 27, 1898. The sole question which arises upon the record is whether this evidence necessitated the submission of the case to the jury to determine whether Smith & Co. had received notice, prior to the sale of the goods, of Neal's withdrawal from the firm. The plaintiff's testimony showed that Burgess, to whom Cushman claims that he was introduced as the "whole cheese," was absent from Omaha on account of ill health from the early part of August until October, 1898; that no introduction such as narrated occurred; that no information was received from Tracey or any other source that Neal had retired from the defendant firm until after the goods were sold; and that the goods in controversy were sold and credited to the defendant firm in the belief that Neal was still a partner therein. Tracey also denied that he ever informed the plaintiff company of Neal's withdrawal from the firm, or that he was ever advised of that fact himself, prior to the sale of the goods. Under these circumstances, the point to be determined is whether the notice given to Tracey, assuming that it was so given, or that a jury would have so found, was notice to the plaintiff company, since there is no substantial evidence that notice of the alleged withdrawal was otherwise communicated to it. The statement, if it was made, that Cushman was the "whole cheese," cannot be accepted as a proper or sufficient notice of the dissolution of the firm. It might mean that or something else. And the question whether notice given to Tracey was adequate to bind the company depends, necessarily, upon the scope of his agency. The testimony on this latter point was to the following effect: That Tracey was simply a traveling salesman of the plaintiff company; that his duties were to sell goods or solicit orders; that after taking an order it had to be submitted to his employer for its acceptance or rejection; and that he had no other duties than these, or authority to make arrangements binding upon the company. When a person retires from a firm with which he has been connected, it is his duty to advise all persons with whom the firm has previously had dealings that he has so withdrawn, if he would absolve himself from liability for credit subsequently extended by such persons to the firm from which he has retired. The law casts this burden on the retiring member, and where the firm name remains unchanged it does not compel those who have previously dealt with it to ascertain, each time that credit is extended, whether the membership thereof remains the same as before. In the absence of a notice to the contrary, they may assume that it does. This doctrine is elementary. Bloch v. Price (C. C.) 32 Fed. 562, 564, 565; Carmichael v. Greer, 55 Ga. 116. The usual practice among merchants is to mail written or printed notices to those with whom the firm has previously had dealings when any changes occur in the personnel of the firm, and those who have dealt with it may reasonably expect such a notice or a notice in some other form which is equally authentic. In this instance, therefore, as the plaintiff company had had dealings with the Charter Oak Mercantile Company, prior to March, 1898, the burden. rested on Neal to show affirmatively that he had advised the plaintiff company of his withdrawal from the mercantile company. We are of opinion that the notice said to have been given by Cushman to Tracey was inadequate, and not binding upon the plaintiff, because Tracey's sole duty, as the evidence shows, was to take orders and submit them to his employer for acceptance or rejection, while he had not been armed with authority to extend credit or to determine to what extent customers were trustworthy. Nor had it been made a part of his duty, so far as the record discloses, to ascertain who composed the firms with which his employer dealt, or to take note thereof, or to make report of changes therein. These duties, as it seems, had been devolved upon the credit department, and not upon the salesmen. Moreover, it would be unreasonable to charge a large mercantile establishment with knowledge of all statements which may be casually made in the hearing of its traveling salesmen, when it is so easy for one who has retired from a firm to rid himself from liability for future debts by mailing a notice of his withdrawal to those with whom the firm has been in the habit of dealing. These views are confirmed, in a great measure, by the following authorities: Stewart v. Sonneborn, 49 Ala. 178; Bensberg v. Harris, 46 Mo. App. 404; Gill v. Kaufman, 16 Kan. 571; Butler v. Dorman, 68 Mo. 298, 30 Am. Rep. 795; McKindly v. Dunham, 55 Wis. 515, 13 N. W. 485, 42 Am. Rep. 740; Holland v. Van Beil, 89 Ga. 223, 15 S. E. 302. We think, therefore, that, even if the jury had given credence to Neal's testimony concerning the interview between Cushman and Tracey, it would not have warranted a verdict and judgment in favor of Neal, because there was no evidence that Tracey communicated the fact, of which he is said to have been advised, to his firm, as he probably would have done if the fact had been communicated to him. For these reasons the judgment below is affirmed. CHOCTAW, O. & G. R. CO. v. TENNESSEE. (Circuit Court of Appeals, Eighth Circuit. April 24, 1902.) No. 1,624. 1. MASTER AND SERVANT-ACTIONS FOR INJURY OF SERVANT-QUESTIONS FOR JURY. Plaintiff, who was head brakeman on a freight train, stepped upon the stirrup or step on the front of the engine pilot as the train was moving slowly along a switch track in the yards at night, and, by reason of the giving way of the step, his foot went between the ties, where it was caught and crushed. In an action to recover for the injury there was evidence tending to show that the step was out of repair, and had been for some days, but that such fact was unknown to plaintiff; that it was customary to fill the spaces between ties in a switch yard, and that plaintiff had been in this yard, which was new, but once or twice before, and then at night; that it was customary and proper for the head brakeman to ride on the pilot when the train was going upon the switch tracks to attend to the opening and closing of switches, and that the steps were placed there for that purpose; that there was no rule of the company, known to plaintiff, against stepping on such pilots while the train was in motion, unless it was moving at a high rate of speed. There was also evidence on behalf of defendant that it was not customary to have the spaces between ties filled in new yards, like the one in question. Held, that the court did not err in refusing to decide the questions of negligence or contributory negligence as matter of law, and properly submitted them to the jury. 2. SAME-INSTRUCTIONS-HARMLESS ERROR. A statement in the charge of the court that it was the duty of a master to furnish to its servants machinery in a reasonably safe condition, and a reasonably safe place for the servants to work, without the proper qualification that the exercise of reasonable and ordinary care only was required in that respect, is not a material error for which the judgment will be reversed, where the rule was correctly given in another place, and the charge, as a whole, correctly stated the law applicable to the case. 8. SAME RAILROADS-CARE AS TO CONDITION OF SWITCH YARDS. An instruction is not erroneous which charges that it is the duty of a railroad company to exercise greater care to keep the spaces between ties filled, and the ground level, in large switch yards, where trains are made up and much switching done, than would be required in yards where there is less occasion to make couplings. 4 SAME-INSTRUCTIONS IN ACTION FOR INJURY OF SERVANT-HARMLESS ERROR. A statement in the charge in an action by a servant to recover for a personal injury that plaintiff could not recover if his own negligence or want of attention contributed "in any considerable degree" to his injury did not constitute reversible error, where in the same connection the court correctly enumerated the things which, under the facts shown by the evidence, would constitute contributory negligence. Sanborn, Circuit Judge, dissenting. In Error to the Circuit Court of the United States for the Eastern District of Arkansas. E. B. Peirce and Charles B. Stuart (J. W. McLoud, on the brief), for plaintiff in error. J. W. House (J. E. Williams and J. W. Blackwood, on the brief), for defendant in error. Before CALDWELL, SANBORN, and THAYER, Circuit Judges. THAYER, Circuit Judge. This is an action for personal injuries. which was brought by Thomas Tennessee, the defendant in error, a brakeman in the employ of the Choctaw, Oklahoma & Gulf Railroad Company, against that company. The injury complained of was sustained on February 6, 1900, at Argenta, Ark., near Little Rock, at which place the company had an extensive yard for parking and making up freight trains. The plaintiff below was head breakman on a freight train of the defendant company which arrived at this yard about 10 o'clock p. m. on the night of the accident; having come from Memphis, Tenn. As it headed into the yard, the plaintiff descended from the engine, and threw, in succession, two switches to let the train. in onto the lead track, and to the particular side track where it was to stand for the night. After throwing the last switch, being in front of the engine, he attempted to board the pilot of the engine for the purpose of riding down into the lower part of the yard, to see that the switches were lined up, and to be in a convenient position to open or close them readily if they were not properly lined up. In his attempt to board the pilot, he stepped on an iron step or stirrup which was bolted to the bottom of the pilot or cowcatcher, about six or eight inches from the point thereof, when, as he claimed, the stirrup gave way, and his foot went down between the ties, which at that point |