Opinion of the Court. endorsee of such a check, if he wishes to avoid embarrassment and delays, such as have resulted in this case, must at once present the check for payment and then deposit the money instead of the check in bank. This being so, then the obligation of the Franklin Bank to pay the check was not affected by the notice to it by Blake not to pay, and the right of the Hamilton Bank to enforce payment was not affected by notice of Blake's claim. Some question is made as to the right to an order of interpleader in such a case as this, but in view of the conclusion reached it is not necessary to consider it. And it may be added, that even if the certified check were not treated as money but as property Blake had given Werbel for the horse, Blake could neither recover it nor defend against payment of it in a suit upon it, in the absence of a showing that he had repudiated the trade and had tendered the horse to Werbel, which was not done in this case, nor was Werbel made a party to the action. Morrison v. Eaton, Tappan, 173; Manhattan Life Ins. Co. v. Burke, 69 Ohio St., 294; Archer v. Bamford, 3 Stark., 175; Lewis v. Cosgrave, 2 Taunt., 2; Heaton v. Knowlton et al.. Admrs., 53 Ind., 357; Grubbs et al. v. Barber, 102 Ind., 131. The judgment is Affirmed. PRICE, C. J., SHAUCK, CREW and SPEAR, JJ., concur. Statement of the Case. MCGILL V. THE CLEVELAND & SOUTH-WESTERN TRACTION COMPANY. Rule that where master directs servant-To continue use of defective tool-Relieves servant of risk-Does not apply to tool of simple construction, when-Law. of respondeat superior— Servant injured by defective step-ladder. 1. The rule that a direction by the master to continue the use of a defective instrument or tool, coupled with a promise to replace it with one not defective, relieves the servant from the doctrine of assumed risk if injured during such continued use and because of the defect, does not apply to cases of ordinary labor with a tool of simple construction with which the servant is entirely familiar, and which he understands and comprehends as fully as the master. 2. Where an employe whose duties require him to use an ordinary step ladder, discovers and appreciates that the step-ladder has become and is defective, dangerous and "unfit for him to use in connection with his said work," and he notifies the master who promises to furnish another, but before doing so the employe in using such defective step-ladder is injured, the master under such circumstances is not liable (No. 11088-Decided December 22, 1908.) ERROR to the Circuit Court of Lorain county. On January 31, 1907, the plaintiff in error, David B. McGill, commenced an action in the Court of Common Pleas of Lorain county, Ohio, against the defendant in error, The Cleveland & South-Western Traction Company, to recover damages for personal injuries received by him on October 23, 1906, while in the employ of said defendant company. The petition filed by him, omitting caption and verification, was in the words and figures following: "Now comes the plaintiff, David B. McGill, and Statement of the Case. says that the defendant, The Cleveland & SouthWestern Traction Company, is now and was on the 23d day of October, 1906, a corporation duly organized under the laws of the State of Ohio, and as such corporation owned, operated and controlled a line of electric railway extending from the City of Cleveland, in the County of Cuyahoga, to the Village of Wellington, County of Lorain, and elsewhere. "That in said Village of Wellington at said time, near the Public Square, defendant maintained a certain side-track and other equipment used by the defendant in the operation and maintenance of its said line of railway. "Avers that on and prior to the 23d day of October, 1906, plaintiff was in the employ of the defendant company in the capacity of helper to one Mike Gibbons, who was then in the employ of the defendant company in Wellington, Ohio, as car inspector. "Plaintiff avers that he controlled no person and was subject to the orders, direction and control of his said foreman or boss, Mike Gibbons. "Avers that at said time, defendant maintained as aforesaid, a certain side-track along the main street in said Village of Wellington, where the defendant placed certain of its cars from time to time to be inspected, repaired and cleaned. Avers that it was plaintiff's duty among other things, at said time, to assist, under the direction of said. boss or foreman, in cleaning, washing and repairing the cars of defendant company. That it became and was necessary in cleaning and washing said cars of defendant company, and particularly Statement of the Case. the windows and window-frames on the outside of said cars, for this plaintiff to use a certain stepladder about seven feet high, said ladder being furnished by defendant company for that purpose in the performance of his work. "Avers that some days prior to the 23d day of October, 1906, plaintiff discovered that said ladder which defendant had furnished him to be used while performing his duties, as aforesaid, had become old, worn and defective to such an extent that the same was unfit for plaintiff to use in connection with his said work, in that the steps of said ladder were loose and worn and the iron braces holding said steps to the side pieces of said ladder were loose, broken and defective.. "Avers that a few days prior to the 23d day of October, 1906, this plaintiff complained to his said. foreman, Mike Gibbons, of the defective and dangerous condition of said ladder, and plaintiff avers that said defendant through its foreman assured and promised plaintiff that he would have said. ladder repaired with a new, proper and sufficient one, so that plaintiff could safely perform his work. "Plaintiff avers that about a week or ten days prior to the 23d day of October, 1906, he further complained to the master mechanic of defendant company, Fred Strail, of the defective and dangerous condition of said ladder, and that said master mechanic then and there promised and assured plaintiff that he would be furnished with a new, sufficient and proper ladder with which to perform his work as soon as the same could be made, and that he should use said ladder until a new ladder was furnished. That plaintiff relied upon defend Statement of the Case. ant's fulfilling its said promises and assurance, and he continued to perform his labor as directed by said foreman, Mike Gibbons, until the 23d day of October, 1906, when plaintiff was injured in the direct line of his duty and without fault or negligence upon his part, as hereinafter set forth. "Plaintiff avers that on said 23d day of October, 1906, he was ordered by defendant's foreman, Mike Gibbons, to clean the windows on the outside of the vestibule on the west end of one of defendant's cars placed on said side-track in said village, and in order to properly perform his work it became and was necessary for plaintiff to use said ladder furnished by the defendant company, and that while attempting so to do, the steps of said ladder and braces thereof gave way, by reason of its old, defective and dangerous condition, and plaintiff was thrown upon and across the bumper on the west end of said car, and was precipitated to the fender of said car, bruising plaintiff and inflicting serious and permanent injuries as hereinafter set forth. "Plaintiff avers that the defendant was guilty of negligence and carelessness in permitting and allowing said ladder to be and remain in said defective, worn out and dangerous condition, and in ordering said plaintiff to work with the same at said time. That the defendant was guilty of carelessness and negligence in not furnishing plaintiff with a new, proper and sufficient ladder, in accordance with the promises and assurance of defendant. "Plaintiff avers that his injuries were caused solely by reason of the fault and negligence of the defendant, as aforesaid, and without any fault |