have $1,000. I wrote that. One more daughter she wanted to give $500; where she lived I don't recollect. I wrote that."

The next witness testifying to the contents of the will was Mrs. S. J. Towle, who testified to a bequest therein of $500 to a son living in Oregon. The witness, on being requested a second time to state the contents of the will, omitted this bequest. * My impres sion is that the one in Oregon (the daughter in Oregon) was to have the $1,000, but I would not be positive now; that has been my impression, at least, ever since the last trial." Further on in her testimony this witness speaks, for the first time, of a reservation in the will of $500 for funeral expenses.

The foregoing is a fair sample of the testimony on the contents of the will; and can it be said that the contents of the will were clearly and distinctly proved by two witnesses? In Davis v. Sigourney, 8 Metc. 487, WILDE, J., says:

"To authorize the probate of a lost will by parol proof of its contents depending on the recollection of witnesses, the evidence must be strong, positive, and free from all doubt. Courts are bound to consider such evidence with great caution, and they cannot act upon probabilities.' "This strictness is requisite, in order that courts may be sure that they are giving effect to the will of the deceased and not making a will for him.” Matter of Johnson's Will, 40 Coun. 589.

We do not think the evidence given of the contents of the will in this case of such a. character as comes up to the requirement of the statute, or the rule laid down in the foregoing cases. The objection to the credibility or the competency of the witnesses, on the ground of interest, was not well taken.

Orders reversed, and cause remanded for a new trial.

We concur:

TON, J.; Ross, J.

(66 Cal. 509)

MCKEE, J.; MCKINSTRY, J.; SHARPSTEIN, J.; THORN

BENNETT v. TruEBODY. (No. 8,841.)

Filed March 17, 1885.

MASTER AND SERVANT-RELATION, WHEN EXISTS LIABILITY FOR NEGLIGENCE OF INDEPENDENT CONTRACTOR.

Where the owner of premises employes a plumber to make repairs, leaving him to proceed in his own way to accomplish the desired result, and without any direction or control on the part of the owner, such an employment constitutes the plumber an independent contractor merely, and the relation of master and servant does not exist, and the owner is therefore not liable for injuries caused to a third person by the negligence of the plumber's workmen in leaving a trap-door open; and this is so, though there be no stipulation as to the amount to be paid for the work.

Department 2. Appeal from the superior court of the city and county of San Francisco.

Thornton & Merzbach, for appellant.

Stanley, Stoney & Hayes and Jarboe & Harrison, for respondent.

SHARPSTEIN, J. In Milligan v. Wedge, 12 Adol. & E. 737, the distinction between the liability of the master of a mere servant and that of one who contracts with another who is carrying on an open, distinct, and independent calling or employant, for the production of results, is clearly defined. In that case a butcher, who was the owner of a bullock, employed a drover to drive the animal from one specified place to another. Instead of driving it, the drover employed a boy to drive it. Through his carelessness in driving it a person was injured, and he brought an action against the owner of the animal to recover damages for the injury occasioned by the careless driving of the boy. The court held that the owner was not liable. DENMAN, C. J., said:

"Here it does not appear that the defendant attended the drover or his servant; and the mischief was done in the course, not of the butcher's business, but of the drover's."

COLERIDGE, J., said:

"I make no distinction between the licensed drover and the boy; suppose the droyer to have committed the injury himself. The thing done is the driving. The owner makes a contract with the drover that he shall drive the beast, and leaves it under his charge; and then the drover does the act. The relation of master and servant therefore, does not exist between them."

WILLIAMS, J., said:

"When the person who does the injury exercises an independent employment, the party employing hin is clearly not liable."

The distinction laid down in that case has since been generally recognized by the courts of this country, as the following cases show: De Forrest v. Wright, 2 Mich. 368; Wood v. Cobb, 13 Allen, 58; Kel. logg v. Payne, 21 Iowa, 575; King v. New York Cent. & H. R. R. Co. 66 N. Y. 186; McCarthy v. Second Parish of Portland, 71 Me. 318; Harrison v. Collins, 86 Pa. St. 156; Linton v. Smith, 8 Gray, 147. As formulated in De Forrest v. Wright, supra, the rule is "that where the person employed is in the exercise of an independent and distinct employment, and not under the immediate control or supervision of the employer, the latter is not responsible for the negligence or misdoings of the former." Here the person employed to repair the waterpipe exercised an independent and distinct employment. He was an employer of men to work under his direction and control. He directed two of those men to go and repair the pipe. They went, and while on the premises opened a trap-door which they neglected to guard, and the plaintiff fell through it and was severely injured. The defendant was the owner of the premises, which, at the time, were occupied by a tenant for a restaurant.

The transaction out of which it is claimed the defendant's liability arises is that he requested the plumber to repair the water-pipe, and left him to proceed in his own way to accomplish that result. It is urged that the plumber was not an independent contractor, and was subject to the control of the defendant. It nowhere appears that it

was contemplated the defendant should superintend the work, or that he possessed the requisite skill to do it; nor does it appear that he knew whether the plumber would do the work himself, or send his servants, as he in fact did, to do it. The plumber was left to produce the desired result in his own way. If that did not constitute him an independent contractor we do not know what would. There was no stipulation as to the amount to be paid for the work; but that is an immaterial circumstance in this case.

Unless we have mistaken the rule applicable to this case, it is quite clear that the court did not err in giving the instructions which it gave, or in refusing to give those which it refused to give. Judgment and order affirmed.

PARTNERSHIP-JOINT LIABILITY-AUTHORITY OF ONE MEMBER TO EXECUTE FIRM NOTE.

Where one person bought a stock of goods, agreeing in consideration thereof to pay the seller's note to a third person, and he thereafter entered into a partnership with another, which partnership assumed to pay the indebtedness incurred in purchasing such goods; and while the partnership still existed, one member of the firm executed to the holder of the aforesaid note, as security for the payment thereof, and in the name of the firm, the note sued on: held, that the firm was liable on such note, the indebtedness being one for which the firm was liable, and one for which a member of the firm had authority to execute a note of the firm therefor.

Department 2. Appeal from the superior court of Humboldt

county.

S. M. Buck and J. J. De Haven, for appellant.

J. D. H. Chamberlain and G. W. Hunter, for respondent. SHARPSTEIN, J. It is found that one Long gave his note to defendant Gill for $1,000, and that he transferred the same to plaintiff. Afterwards Long sold his interest in a stock of goods to Gill, and he agreed, in consideration thereof, to pay Long's note, which was held by plaintiff. Subsequently defendant Hunter purchased of Gill a half interest in the stock of goods, and they became partners under the firm name of Gill & Hunter. "As part payment for said property and business purchased from said Gill, defendant Hunter agreed to pay one half of all the indebtedness of said Gill theretofore incurred by him in the purchase of said property and in carrying on said business, and the firm of Gill & Hunter assumed and agreed to pay all of such indebtedness." Afterwards, and while the firm still existed, the defendant Gill executed to the plaintiff, in the name of the firm, the note sued on, "as security for the payment of said note of C. W. Long, then owned by plaintiff;" being the note which defendant Gill had agreed with Long to pay.

The liability of the firm to pay the note sued on depends on the authority of Gill to give the note of the firm for the purpose for which it was given. If Gill incurred any indebtedness to the plaintiff by purchasing Long's interest in the goods, it is quite clear that the firm was liable for such indebtedness, and either partner might give the note of the firm therefor. And by assuming the payment of Long's note to plaintiff, Gill certainly incurred an indebtedness to plaintiff, which indebtedness existed at the time when Hunter purchased a half interest in the goods fm Gill, and they two became partners. That being so, the judgment must be reversed; and, if there were not other findings in conflict with the foregoing, the plaintiff would be entitled to judgment on the findings. The findings which conflict with those above referred to, are: That the note was given in payment of, or as security for, the sum of $1,000, borrowed by Gill individually, in his own name, for his own use, and not in the name or for the use or benefit of the firm; and that none of the money so borrowed was used for the benefit of the firm. That these facts were all well known to the plaintiff when he took the note; and that Hunter has never in any way ratified the transaction.

Giving a note for money borrowed for his (Gill's) own use and benefit, was a different thing from giving one as security for the payment of an indebtedness which the firm had assumed the payment of. We are urged, but shall not attempt, to reconcile these findings, which, to us, appear to be utterly irreconcilable.

Judgment reversed, and cause remanded for a new trial.

We concur: THORNTON, J.; MYRICK, J.

(5 Mont. 485)

SUPREME COURT OF MONTANA.

MAYGER V. CRUSE and others.

Filed January 8, 1885.

SPECIFIC PERFORMANCE OF CONTRACT.

In an action to compel the specific performance of a contract, statements which amount only to conclusions of law should be avoided, and the facts showing the character of the consideration should be fully stated, in order that the court may determine whether the contract is fair, just, and reasonable in all its parts, and such as a court of equity ought to enforce.

Appeal from Third district, Lewis and Clarke county.

E. W. & J. K. Toole, for appellant.

Sanders & Cullen and Thomas J. Lowry, for respondents.

GALBRAITH, J. This is an appeal from a judgment rendered in consequence of an order sustaining a demurrer to the complaint. The action is to compel the specific performance of an alleged contract. The allegations of the complaint are in substance as follows, viz.:

"That on the third day of May, 1879, the defendant Thomas Cruse was the owner of, and as such in the actual occupation and possession of, a certain quartz mining claim, situated in Ottoway mining district, in the county of Lewis and Clarke, Montana territory, known as the Pine Tree' or 'Bon Mahon Lode.' A description of the property is given. That the said lode was by the locator thereof, and his successors in interest, deeded to the said defendant Thomas Cruse, who, on the third day of May, 1879, held the legal and equitable title to the same; that on the said third day of May. 1879, the defendant Cruse entered into a certain contract with this plaintiff, whereby, in consideration that this plaintiff would render services to said defendant in and about compromising and settling a certain conflicting claim and matter of controversy then existing between one Larry Walsh and Lamartine C. Trent and the said Thomas Cruse, concerning the property aforesaid and the title thereto, he would, in the event such dispute and controversy was settled and compromised by said plaintiff, convey to this plaintiff, by a good and sufficient deed, one undivided one-third of the said property so acquired and secured by said settlement or compromise,-the said property at that time being undeveloped and of little value, and the said services being a fair and reasonable compensation for the interest so to be acquired; that in pursuance of said contract this plaintiff did proceed and compromise and settle the said dispute and controversy as the agent for said defendant, and did procure and obtain from said parties a perfect and complete title, including the right, title, and claim of said parties to all of the said lode claim, save and except a portion thereof described in the complaint, and being three hundred and fifteen feet (linear) on said Pine Tree lode; that, in pursuance of said settlement and compromise, the said Walsh and Trent executed to said defendant a good and sufficient deed for all the balance of said mining claim embraced in the said Pine Tree and Bon Mahon lode claim, by reason whereof he became seized and possessed of the same, and the legal title thereto, and let this plaintiff into the occupancy and possession of his said one-third interest thereof in accordance with the terms of said contract, and still holds, occupies, and possesses the same; that since the performance of said contract by this plaintiff, and the acquirement of possession of said property by him, he has, as cotenant with said defendant, expended in money and labor upon said property,