Where a servant was injured while performing certain duties in a dark pit under defendant's printing press, held that his contributory negligence was the proximate cause of the injury.-Newport News Pub. Co. v. Beaumeister, Va., 52 S. E. Rep. 627.

91. MASTER AND SERVANT- Customs of Miners.-The usage of miners to prop the roof in the rooms in which they were employed held matter of defense, in an action for injuries to a miner by the falling of a portion of the roof of the mine.-Tutwiler Coal, Coke & Iron Co. v. Farrington, Ala., 39 So. Rep. 898.

An em

92. MASTER AND SERVANT-Duty to Inspect. ployer, having delegated the task of assembling mateterials for the construction of molding flasks to employees, held to owe no duty to employees to inspect the flasks before they were used.-Leishman v. Union Iron Works, Cal., 83 Pac. Rep. 30.

93. MASTER AND SERVANT-Fellow Servants. - A com. plaint for injuries to a servant by the negligence and intentional act of a fellow servant held demurrable in the absence of an allegation of the negligence of the master in the selection of the servant or orders given him, etc. -Tennessee Coal, Iron & R. Co. v. Bridges, Ala., 39 So. Rep. 902.

94. MASTER AND SERVANT-Obvious Danger.-A master was not negligent in failing to warn a girl 16 years old of the danger of open, moving, and visible cogwheels near the place where she was at work.-Stevens v. Gair, 96 N. Y. Supp. 303.

95. MECHANICS' LIENS - Limitations. - Materialmen held barred by limitations from maintaining an action on a contractors' bond by expiration of the period within which they could have maintained an action for the materials against the contractors on the oral contract therefor.-Towle v. Sweeney, Cal., 83 Pac. Rep. 74.

96. MECHANICS' LIENS - Sureties on Contractor's Bond.-Sureties on a building contractor's bond securing the owner against mechanics' liens held not entitled to file a lien for materials furnished a contractor. -Miller v. Taggart, Ind.,76 N. E. Rep. 321.

97. MORTGAGES-Laches.-One holding title to realty is not guilty of laches preventing him from asserting the invalidity of a mortgage in a suit to foreclose because he has not instituted suit to avoid the mortgage.-Burns v. Cooper, U. S. C. C. of App., Eighth Circuit, 140 Fed. Rep. 273.

98. MORTGAGES-Payment on Account. — A decree requiring satisfaction of a mortgage on payment of a balance due into court held erroneous for failure to fix a reasonable time for such payment.-Frutig v. Trafton, Cal., 83 Pac. Rep. 70.

99. MORTGAGES-Redemption.-A wife could not obtain relief in equity from alleged fraud, consisting of collusion between the husband and the purchaser at foreclosure sale under a mortgage executed by the husband on his lands before marriage, with which alleged collusion the mortgagee had no connection. Lacey v. Lacey, Ala., 39 So. Rep. 922.

100. MUNICIPAL CORPORATION Decrees Enjoining Collection.-A decree enjoining the collection of a mu nicipal tax on the ground of the unconstitutionality of the act purporting to incorporate the municipality is not subject to the objection of purporting to judicially dissolve a municipal charter.-Campbell v. Bryant, Va., 52 S. E. Rep. 638.

101. MUNICIPAL CORPORATIONS-Defective Sidewalks. -A contractor for constructing a city subway held as matter of law not negligent in leaving a plank in a tem. porary sidewalk 1 1-2 inches above the surface of the adjacent walk.-Carr v. Degnon Contracting Co., 96 N. Y. Supp. 277.

102. MANDAMUS-Issuance Denied Because of Futility.A petition for mandamus to compel a clerk to deliver to petitioner the testimony of witnesses taken at a prelim. inary examination in certain criminal cases held properly denied.-Gray v. Lindsey, Ala., 39 So. Rep. 927.

tory negligence depriving her of the right to recover, the court properly gave the affirmative charge requested by defendant.-Brawley v. Birmingham Ry., Light & Power Co., Ala., 39 So. Rep. 919.

104. NEGLIGENCE-Failure to Exercise Due Care.-A right of recovery on another's negligence is always conditioned by the injured party's exercise of ordinary care to avoid the damages.-Western Union Telegraph Co. v. Baker, U. S. C. C. of App., Eighth Circuit, 140 Fed. Rep. 315.

105. NEW TRIAL-Costs, on Whom.-An order setting aside a verdict as against the weight of the evidence should be granted only upon condition that the moving party pay the costs.-Casner v. New York City Ry. Co., 96 N. Y. Supp. 257.

106. NUISANCE-Rights of Tenant.-Where a tenant had no adequate remedy at law for the abatement of a nuisance, maintained in an adjoining room, which was not an injury to the freehold, it was no defense that com. plainant was a tenant and not the owner of the prem ises occupied by him.-Grantham v. Gibson, Wash., 83 Pac. Rep. 14.

107. PARTNERSHIP-Sale and Liability of Purchaser.One of the partners held not a necessary party to a suit to compel the purchasers of partnership interests to pay the partnership debts as they had agreed.-Tillis v. Folmar, Ala., 39 So. Rep. 913.

108 PATENTS-Sale of Future Inventions.-A contract by an inventor, who has sold inventions, to disclose and assign to the purchaser any future inventions made by him for improvements thereon, is not contrary to public policy, but is valid and enforceable if based on a valuable consideration.-Reece Folding Mach. Co. v. Fenwick, U. S. C. C. of App., First Circuit, 140 Fed. Rep. 287. 109 PAYMENT-Application.-A debtor's direction that remittances were made "for credit," and "to apply on account," held not a direction for application on the un. secured portion of the account.-Frutig v. Trafton, Cal., 83 Pac. Rep. 70.

110. PLEADING-Amendment.-The court may permit a complaint stating a cause of action to recover under a contract to be amended so as to state a cause of action to recover for a breach of the same contract.-Dunham v. Hastings Pavement Co., 96 N. Y. Supp. 313.

111. PLEADING-Amendment to Conform to Proofs.-An order permitting plaintiff to ammend his complaint to conform to the proof with reference to the giving of certain architects' certificates held proper.-Gritman v. United States Fidelity & Guaranty Co., Wash., 83 Pac. Rep. 6.

112. PLEADING - Demurrer. A demurrer is not the proper method for eliminating improper items or special acts of an alleged negligence.-Western Union Telegraph Co. v. Wells, Fla., 39 So. Rep. 838.

113. PLEADING-Negative Pregnant.-Where the denial of an assignment of a claim sued on was pregnant with the admission thereof, it was not necessary that plaintiff should prove the same.-Newell v. Brill, Cal., 83 Pac. Rep. 76.

114. PRINCIPAL AND AGENT-Agreement for the Sale of Land. Under an agreement for the sale of land, defendant by a conveyance to his clerk held bound to pay off the incumbrances, with interest, and pay the vendors the stipulated sum mentioned in the contract, unless the agreement was subsequently modified.-Clyne v. Easton, Eldridge & Co., Cal., 83 Pac. Rep. 36.

115. PRINCIPAL AND SURETY-Execution of Bond.Where a contractor's surety delivered the bond to the contractor for the purpose of closing a building contract with plaintiff, the contractor became the surety's agent to deliver the bond.-Gritman v. United States Fidelity & Guaranty Co., Wash., 83 Pac. Rep. 6.

116. PROCESS-Service.-The authority of a court to issue and serve process is restricted to the territory of the state where issued, and the court has no power to require persons not within such territory to appear.-In re Culp, Cal., 83 Pac. Rep. 89.

117. RECEIVERS-Receiver's Certificates as Part Payment at Sale.-It was proper, on a receiver's sale, to permit the purchaser who held receiver's certificates, which were prior liens on the property, to turn them in as par of the purchase price.-Nisbet v. Great Northern Clay Co., Wash., 83 Pac. Rep. 15.

118. REFORMATION OF INSTRUMENT-Mistake.-Equity will reform a written instrument, which by mistake does not contain true agreement of the parties, only when the mistake is plain and the proof satisfactory.-Jacobs v. Parodi, Fla., 39 So. Rep. 833.

119

RLLEASE-Construction of Joint Release.-That a sum is paid in gross to several persons in satisfaction of their individual claims, arising from personal injuries sustained in the same accident, does not necessarily make the contract under which the sum is paid, joint.Hoerger v. Citizens' St. R. Co., Ind., 76 N. E. Rep. 329.

120. SALES-Notice as to Financial Condition.-A comment by a mercantile agency as to defendant's financial statement held sufficient to put plaintiff on guard, and to preclude him from relying on the statement in extending credit to defendant.-Beacon Falls Rubber Shoe Co. v. Pratte, Mass., 76 N. E. Rep. 255.

121. STATUTES-Effect of Total Invalidity.-An uncon stitutional statute purporting to incorporate a town is absolutely inoperative, and does not empower the town authorities to levy or collect taxes -Campbell v. Bryant, Va., 52 S. E. Rep. 638.

122. STREET RAILROADS-Injury Due to Sudden Stop.— A street railway company held not liable for negligent injury to a passenger occasioned by the sudden stop of the car, it not appearing that there was any excessive or unusual jolt in the stopping.-Muller v. Manhattan Ry. Co., 96 N Y. Supp. 270.

123. STREET RAILROADS-Injury to Alighting Passen`ger.-A passenger alighting from a car which had stop ped held not negligent as a matter of law because he attempts to alight with his back in the direction in which the car was going.-Birmingham Ry., Light & Power Co. v. Handy, Ala., 39 So. Rep 917.

124. STREET RAILROADS-Transfers.-In action against carrier for assault committed by conductor in ejecting plaintiff from car on refusal to pay fare when informed by conductor that transfer ticket presented was void, held error to submit question of substantial violation of provision in transfer. -Hanley v. Brooklyn Heights R. Co., 96 N. Y. Supp. 249.

125. STREET RAILROADS-Trespassers.-A person desiring passage who boards a street car stopping at a customary place to receive passengers, and indicating his intention to become a passenger, without notice that persons are not invited to board, cannot be treated as a trespasser.-Hall v. Terre Haute Electric Co., Ind., 76 N. E. Rep. 834.

126. TAXATION-Franchise to Use Streets.-The franchise extended by Const., art. 11, § 19, to lay pipes and conduits, or erect poles, and supply the inhabitants of a city with artificial light, held assessable in locality where exercised, under Const., art. 13, § 10-Stockton Gas & Electric Co. v. San Joaquin County, Cal., 83 Pac. Rep. 54. 127. TAXATION-Partial Payment by Tenant in Common -Payment of half the taxes on land by a tenant in common who held the record title to the entire property held not to prevent the sale of the entire property for nonpayment of the balance.-Moyer v. Foss, Wash., 83 Pac. Rep. 12.

129. TAXATION-Situs of Personalty. The rule "mobilia sequuntur personam" gives way before express law destroying it in any given case where constitutional requirements do not stand in the way-Metropolitan Life Ins. Co. v. Board of Assessors for Parish of Orleans, La., 39 So. Rep. 846.

129. TELEGRAPHS AND TELEPHONES - Damages for Failure to Transmit Money.- Where willful refusal of a telegraph company to pay over money to one entitled thereto causes one to travel for more than 24 hours without food or funds, he may recover damages for bodily

pain and mental anguish.-Western Union Telegraph Co. v. Wells, Fla., 39 So. Bep. 838.

130. TRADE MARK AND TRADE-NAMES-Right to Use of Name.-In determining whether a manufacturer has a right to a trade name, the question is whether a name, which had no recognized value, has been so used by him as to give it a value as a designation of articles of his manufacture.-Cohen v. Nagle, Mass., 76 N. E. Rep. 276. 131. TRIAL-Instructions.-There is no ground of objection to a charge merely presenting the two conflicting theories, and giving the law applicable to each collectively.-Andrew v. Carithers, Ga., 52 S. E. Rep. 653.

132. TRIAL-Performance of Contract.-A finding that a building had been accepted by the architect, and bad been taken possession of, and been since occupied by defendant, held responsive to the issue of performance of the contract for its erection.-Wyman v. Hooker, Cal., 83 Pac. Rep. 79.

133. TRIAL-Special Findings.-It is within the dis cretionary power of the trial court to question the jury as to the grounds of their general verdict, and to inquire if they had determined certain issues in the case. - Hart v. Brierley, Mass., 76 N. E. Rep 286.

134. TROVER AND CONVERSION-Measure of Damages. -The measure of damages for the conversion of goods is the fair market value thereof at the date of the con. version. Hart v. Brierley, Mass., 76 N. E. Rep. 286.

135. TRUSTS-Death or Resignation of Trustees.-Death or resignation of trustees named in a will held not to cause the trust to fail, but the court may appoint their succes sors.-Speer v. Colbert, U. S. S. C., 26 Sup. Ct. Rep. 201.

136. TRUSTS-Repayment of Loan to Single Trustee. Trustees held entitled to recover trust moneys from borrower, although the latter had, without negligence, repaid the loan to a single trustee who had embezzled the money.-Vohmann v. Michel, 96 N. Y. Supp. 309.

137. UNITED STATES-Claims Against.-A contract to prosecute a claim against the United States, making payment for services a lien on the claim and on any draft issued thereon, held a violation of Rev. St. U. S., § 3477 [U. S. Comp. St. 1901, p. 2320].-Nutt v. Knut, U. s. S. C, 26 Sup. Ct. Rep 216.

138. VENUE-Effect of Motion for Change of Venue.-On grant of motion for change of venue, stay of p.oceedings in original court follows of necessity.-Fishburne v. Minott, S. Car., 52 S. E. Rep. 646.

139. WATERS AND WATER COURSES-Percolating Waters. -Percolating waters oozing through the soil in an undefined channel held not within Rev. St. Ariz. 1887, pars. 3199, § 1, 3201, § 3, relating to the appropriation of water.Howard v. Perrin, U. S. S. C., 26 Sup. Ct. Rep. 195.

Re

140. WILLS- Bequest for Religious Purposes. ligious control exercised over incorporated institutions not sectarian institutions, under their charters, does not make them such within Rev. St. D. C., § 457, and Maryland Bill of Rights, § 34, invalidating gifts for religious purposes unless made one month before death.-Speer v. Colbert, U. S. S. C., 26 Sup. Ct. Rep. 201.

141. WILLS-Rights of Legatee.-Where a will gave testator's widow the income of certain moneys with the right to use the principal "as she may need it," she was the sole judge of such necessity.-In re Trelease, 96 N. Y. Supp. 318.

142. WITNESSES - Contradictory Statements. - Under Code Civ. Proc., §§ 2049, 2052, the prosecution may question a witness ca.led by it, and who denies the very fact which he is called to prove, as to previous contradictory statements.-People v. Cook, Cal., 83 Pac. Rep. 43.

143. WITNESSES-Privilege as to Self-incrimination.— The possibility that a cash book whose production was sought by a federal grand jury investigating the criminal liability of a national bank employee might affect him prejudicially held to justify his refusal, under the claim of privilege, either to produce the book or to answer questions as to its possession.-Ballmann v. Fagin, U. S S. C., 26 Sup. Ct. Rep. 212.

Central Law Journal.

ST. LOUIS, MO., MAY 18, 1906.

LIABILITY OF MASTER FOR INJURY TO SERVANT WHERE LATTER BELONGS TO LABOR UNION WHICH CONTROLS THE SELECTION OF SERVANTS.

New conditions require new applications of old rules of law to meet them and in no other age of the world have new conditions arisen with such frequency or courts been compelled to face so many changing conditions for which, so far as regards the application of principles of law thereto, there is absolutely no precedent. Many of these new and perplexing situations have followed the organization and successful propogandism of labor organizations, whose sudden rise to almost omnipotent power in the commercial world has been productive of many interesting questions of law, not the least important of which is that presented by the recent case of Farmer v. Kearney, 39 So. Rep. 967, wherein it was held by the Supreme Court of Louisiana, that where the servants of a master belong to a labor union and such union insists upon selecting the men which the master must employ, the master is not liable for any injury that may result from the negligence of other workmen or even of the foremen, pro vided the foremen are also selected by the labor union.

The facts in the principal case show that the defendant, Kearney, was a stevedore employed to load vessels; that in loading a certain vessel, Mr. Kearney employed a certain foreman and told him the number of men to employ in his gang and instructed him to load a certain stock of cotton on the vessel. The foreman employed the requisite number of men.

The injury occurred by reason of the negligence of the foreman and his men in failing to fasten two bales of cotton securely in the sling attached to a derrick used for raising and lowering the co'ton into the hold of the ship, by reason of which carelessness one of the bales fell and struck plaintiff, severely injuring him. The negligence is charged in the petition as follows: "First. That the bales of cotton were not well fastened and secure in the sling attached to said der

rick, and were improperly and carelessly slung by said defendant, his agents, servants, and employees operating said derrick and its appurtenances at the time. Second. That the said derrick was operated in too great haste while lowering the cotton in the hold of the ship. Third. That the derrick and its appliances, on which the cotton was hoisted and let down into the hold of the vessel, were not in the proper position, and should have been stationed on the forward compartment, instead of the aft compartment. Fourth. That two bales of cotton, as is customary, were hoisted by said derrick and lowered into the hold at one and the same time. That the

bight of the sling that took hold of the cotton and lowered into the hold of the vessel was entirely too long, and the bale of cotton which struck petitioner was loosened and fell out of the sling."

The defendant entered the unusual defense to the petition in this case that the plaintiff belonged to a labor union which dictated the selection of the foreman and of the personnel of the gang working under the foreman, and that such being the case he should not be held liable for any injuries resulting from the neg. ligence either of the foreman or the fellow servants of the plaintiff. The brief of defendant's attorneys, Miller, Dufour & Dufour of New Orleans, contains a full review of the evidence offered on this very interesting point. The learned attorneys for the defendant, say: "It is evident that the commerce of the port of New Orleans is handled by two associations - the Longshoremen's Benevolent Association, which handles cotton up to the time that the sling is attached to the hoist, and the Screwmen's Association, which handles it from that time until it reaches the hold of the ship. These two associations control absolutely the commerce of the port, forming together what is known as the 'Dock and Cotton Council,' and enforcing the rules of this council by boycott or strike. The Screwmen's Association refuses to take cotton from anybody but members of the Longshoremen's Association, and the Longshoremen's Association refuses to deliver the cotton to anybody but members of the Screwmen's Association. The stevedore does not, and is not allowed to come in contact with the individual. He cannot employ the individual, but must em

ploy an entire gang, which is made up of members of this association among themselves, and to which they designate one of themselves as foreman. These screwmen are supreme aboard ship. They handle the cotton from the moment the sling is attached to the hoist. One of the rights which they demand is that one of the gang must operate the winch. They themselves select the man who is to operate the winch. The stevedore is not allowed any choice in the matter, and on the day of the accident the screwmen and the members of the gang in which plaintiff worked, designated "Tony,' one of their gang, to operate the winch. Every witness in this case, including the plaintiff himself, has testified that the stevedore is not allowed any choice in the selection of the winchman. and if, on the day in question, the defendant had put the most expert machinist to operate this winch, all of the screwmen would have left the work, and would have declined to return to work until one of their number had been reinstated at the winch."

The court, in holding the defense offered by the defendant to be a sufficient answer to plaintiff's petition, says: "When a person contracting for work which he engaged to do needs a number of workmen to perform the same, the individual workmen employed rely upon the contractor's having and exercising proper knowledge, skill, and prudence in the selection of the workmen other than themselves; that he will see to it that they each have proper knowledge, skill, and prudence. They rely, also, upon his exercising himself (or through some one whom he selects to represent him) due care, knowledge, and prudence in superintending the workmen as they work; that he will see that they perform their work properly. The workmen may, however, elect in any particular case, as between themselves and the contractor, to relieve the latter from these duties and obligations, and the responsibility resulting from their nonperformance, by selecting agencies of their choice, to which they look for their own proper protection, and which they substitute for that purpose for the contractor. The responsibility of the contractor rests upon freedom of action in the selection of the workmen and in his superintendence over them. When the individual workmen, instead of allowing matters to take their usual shape and course;

make it a condition of their consent to accepting service that he (the contractor) will yield in their favor this right of freedom of action as to selection and superintendence, they absolve him from responsibility which would o'herwise be thrown upon him and look to that of their own selected agencies. When the workmen delegate to a labor organization which they have joined (and to others in privity with their own organization) the right of selection and superintendence, they agree to accept the membership of their fellow workmen in those organizations, and the actions of those associations, ipso facto, as a good and sufficient guaranty to them for their individual safety and protection, so far as the contractor is concerned. If they deem membership in such organizations as conferring benefits upon them, they cannot accept the benefits and repudiate the resulting legal disadvantages."

It seems, if this decision may be considered as establishing the rule of law on this subject, that the labor unions have overreached themselves in their desire to obtain supreme power. They have obtained the power only to wake up to a realization that its acquisition was a mere attractive bubble, and resulted in the loss of the master's protection and a substitution therefor of the oversight of their own union organization which refuses or is not able to respond in damages for the negligence of the men it puts in charge of any work. If the rule established by this decision is followed out to its logical conclusion, it will result that whenever a servant belongs to a labor union which attempts to dictate in any degree to the master what servants he shall employ, that, in every such case the master shall be absolved from liability from the negligence of either foremen or fellow servants. Suppose, for instance, a master is compelled to employ his foreman and employees from the members of a certain labor union in his city. Is not his power of selection curtailed and should he then be held responsible to servants belonging to such union for not providing them with more skillful foremen or employees? We cannot but believe that this is the logical consequence of the rule announced by the courts in the principal case and we may very soon expect to see this point raised as a defense in many damage suits where the facts warrant it.

Moreover, we believe the upholding of

this defense by the court in the principal case to be a most just and proper rebuke to labor union domination. If workmen are to club together to run the master's business let them share some of the responsibilities of the master to the extent at least of bearing the burdens and becoming liable for the injuries attending their own negligence. They should not be permitted to eat their apple and have it too; but this is evidently what they would very much like to do, presuming as they often do, to act as masters while insisting on enjoying all the privileges of servants. Let them be compelled to exchange the one relation for the other but not permitted to enjoy the privileges of both and at the same time escape the responsibilities of either.

NOTES OF IMPORTANT DECISIONS.

PRINCIPAL AND AGENT-IMPLIED POWERS OF SPECIAL AGENTS.-What are the implied powers of special agents is a question for which the text books have not furnished a satisfactory solution. It is, therefore, with some interest that we have read the very valuable discussion of this question by Judge Robert S. Goode of the Missouri Court of Appeals in the recent case of St. Louis Gunning Advertising Co. v. Wanamaker & Brown, 90 S. W. Rep. 737, wherein it was held that a tailoring firm, which held one out as a "selling agent" in another city, was not bound by his contract for billboard advertising, unless it was reasonable in amount and necessary, and not merely appropriate and useful, and the facts were such that a prudent man in the exercise of ordinary diligence would have relied on the agent's appareat authority.

The court, in elucidating its position on this important question says: "It must be acknowledged that the commentators have been unable to elucidate and put into a concrete rule the essential difference between the implied powers of general and special agents; but it is manifest that they are sensible the difference is fundamental and important in litigation. The distinction is deferred to as sound in either the language or the spirit of most judicial opinions on the subject. If Lurie had been designated 'general manager' or 'manager' or 'superintendent,' he would have so far appeared to possess the right to make the agreement in dispute as to leave no doubt of the defendant's liability. Huffcut, Agency, pp. 142, 143, § 107; Inglish v. Ayer, 79 Mich. 516, 44 N. W. Rep. 942. But, as he was a 'selling agent,' he did not have the power unless the advertising was necessary in order to sell, or at least expedient. Should necessity or expediency be the rule of decision? Our opinion

is that from the undoubted doctrine that persons mist inquire more closely and deal more at their own risk in the case of special than of general agents the conclusion is deducible that the former class of agents will have no incidental powers, except such as are necessary; whereas, in the case of general agents, more discretion in the adoption of appropriate incidental means is allowable. The few cases we have found, which treat of the powers of an agent in charge of goods, have justified incurring expense for the principal only when it was absolutely necessary, as opposed to expedient, to do so; like renting a storeroom or borrowing money to pay freight on the goods so as to get them from a carrier. Båldwin v. Garrett, 111 Ga. 876, 36. E. Rep. 966; Tucker v. Woolsey, 64 Barb. 142; Rankin v. McFarlane Carriage Co. (Ky.), 75 S. W. Rep. 221. The word 'necessary,' in common usage, connotes different degrees of necessity. Cotten v. County Com'rs, 6 Fla. 620, 629. It sometimes means indispensable; at others. needful, requisite, incidental, or conducive. Chambers v. St. Louis, 29 Mo. 543. In its primary sense it signifies a thing or act without which some other thing or act cannot exist or be done. Commonwealth v. Morrison, 9 Ky. 75, S5. Lurie's authority was special. Now, as Lurie was not given entire control over the particular business, but only the right to do specific acts (make sales), he was a special agent. 1 Clark & Skyles, Agency, p. 6. Therefore, the natural inference is that as to policies and expedients to promote the business, but not indispensable to its successful management, and about the wisdom of which opinions might differ, the defendant intended to reserve the decision to itself; and for that reason gave Lurie a title which denoted restricted authority. Hence our opinion is that the word 'necessary, as applied to determine in this case the agent's power to do an incidental act, should be held to mean an act or measure requisite to enable him to discharge his main duty-something more urgently requred than is signified by the words 'appropriate,' 'suitable,' or 'expe-' dient.' It should not be held to mean an act without which the agent could not move at all toward achieving the main object of the agency; or without which, at a given stage, efforts to perform must absolutely cease; but one requisite for the achievement of it according to the desire and intention of the principal-an act necessary in the sense that the main scope and object of the agency must fail unless it is done. We speak, of course, in view of the fact that no usage on the subject is shown. We think an instruction in the present case defining the word in the sense we have indicated would be correct. The tailoring business can be carried on without extensive advertising on bulletin boards, or otherwise; but advertising is used as a means to increase business in cities where competition is keen. It is a good means to build up custom and sometimes may be necessary, according to the meaning of the word we have pointed out as the proper one