premises a three-story building with basement, which is to become the property of the lessor at the termination of the lease. For the first five years of the lease the lessee agreed to pay an annual rental of $4,200, payable in monthly installments in advance; for the second five years an annual rental of $4,800, payable in monthly installments in advance; and for the balance of the term 5 per cent. of the fair market value of the premises excluding buildings and structures, the fair market value to be determined before the end of the first quarter of the years beginning September 1, 1921, and September 1, 1931, respectively. Defend ant constructed the three-story brick building with basement at a cost of $50,000, plaintiff admitting the value of same to be $36,000. A dispute arose between the lessor and lessee as to which of the parties should pay the taxes on the demised premises. Mr. Shuff in plaintiff's behalf and with her money paid the delinquent taxes on April 10, 1916, and paid the current taxes on July 15, 1916, aggregating $3,945.

The plaintiff lives in Providence, R. I. The defendant, while in Washington, D. C., on an Eastern trip, on July 8, 1916, wired the plaintiff's mother, which telegram was received by plaintiff and is as follows:

"Mrs. Julia Anthony, Providence R. I.

"Wire me Prince George Hotel New York if you will confer with me Providence Monday as I will come Want to avoid any litigation and either bu(r)y or make satisfactory adjustment. If you want to sue will insist on construction of lease. I have not and will not forfeit this lease and want amicable adjustment

"Fred W Robinson"

"Notice.

"Roy A. Redfield, Her Attorneys." Service of the notice was made by leaving copies on the detained premises with suitable persons by posting there and mailing to each of defendants Robertson and wife to their Spokane house at West 1721 Riverside ave

nue. Mr. Robertson was still absent on his

Eastern trip, while Mrs. Robertson was at their summer place, Spirit Lake, Idaho. Possession of the premises was not yielded, nor was payment of the rent in arrears made during the three-day interval, nor at all.

The complaint in the unlawful detainer action was filed on July 20, 1916, and summons issued thereon on the same date. Defendants Robertson and wife and defendants Connors appeared, while the other defendants, being subtenants, defaulted. The defendants Connors are mortgagees of the leasehold. There is no dispute as to the relation of landlord

and tenant. Plaintiff did not offer or intro

duce în evidence the unlawful detainer notice which was filed with the clerk of the court. At the close of plaintiff's case defendants challenged the sufficiency of plaintiff's evidence to entitle her to recover, and moved that her action be dismissed on the ground that she had failed to prove that an unlawful detainer notice had been served on the defendants Robertson. On July 9, 1917, the court entered judgment in favor of the plaintiff for $3,500, or double the amount of rent found due; for $2,400.08 taxes, being that part which the court found that defendants covenanted to pay under the lease; and canceled and forfeited the lease.

The defendants assign that the court erred: (1) In not dismissing plaintiff's action with prejudice; (2) in not permitting the defendants Robertson to prove that plaintiff waived the right to maintain an unlawful detainer action; (3-5) in entering a judgment against either the defendant Robertson or the community consisting of Robertson and wife, for the sum of $2,400.08 or any other sum for the taxes, for the sum of $3,500 as rent or any other sum or at all, and canceling the defendants' lease on the demised premises.

Disregarding all other claims of error on the part of both the parties as of little or no merit in law, we pass at once to the matter

"You and each of you are hereby notified that you are in default for the months of February; March, April, May and June, in payment of rent for that property described as: * And that the total amount of rent now delinquent and overdue from you to the undersigned is the sum of seventeen hundred and fifty dollars ($1,750.00). You are further notified that

tion. Defendants at all times challenged the authority of plaintiff's attorneys to institute and maintain this action. Defendants contend that the attorneys for the plaintiff had no authority to commence an unlawful detainer action. Mr. Shuff, one of plaintiff's attorneys, admitted that he received and ac

"Providence R I July 715 P 9 1916 "CL Shuff 01111 Hollis St Spokane Wn

"Following from Robinson to Mrs Anthony Wire me Prince George Hotel New York if you will confer with me Providence Monday as I will come Want to avoid any litigation and either buy or make satisfactory adjustment If you want to sue will insist on construction of lease I have not and will not forfeit this lease and want amicable adjustment Fred W Robinson Have answered Matter in Hands of C L Shuff Make your proposition to him Wire advice at once 159 Medway Street C F Whitney."

Whitney was representing Mrs. Waterman at Providence, R. I. Whatever authority the attorneys had prior to the receiving of the above telegram was revoked or suspended by it until Mr. Robertson could be advised, and the authority of the attorney or attorneys for plaintiff was then only to negotiate with Robertson for a settlement or sale. Good faith required that the attorneys should wait with the action for their client until they either notified or consulted with Mr. Robertson. They did neither, but by their action precipitately verified the complaint in behalf of the plaintiff when they knew that Robertson was in the East and his wife out of the city. While it is true that defendants were delinquent and apparently dilatory in the payment of rent and taxes, the dispute about the provisions relating to the payment of the taxes had existed for years. Those parts of the lease relating to the payment of taxes are paragraphs 7, 8, and 18 of the lease, and read as follows:

"7. The lessor covenants and warrants that she has title in fee simple to said demised premises free and clear of any and all incumbrances and liens of any and all descriptions whatsoever and agrees to pay, before the same become delinquent, all sewer, paving, curbing and all other taxes, levied on or against said demised premises, excepting such taxes as are hereinafter expressly provided for.

"8. The lessee covenants and agrees to pay, before the same become delinquent, the sidewalk taxes and all regular county and city taxes lawfully levied and imposed on demised premises and buildings thereon, including chattels and permanent improvements thereon belonging or erected by said lessee excepting those taxes in the preceding paragraph providing for." "18. It is further understood and agreed that if the lessor does not pay the assessments and taxes levied and assessed on said premises, which by the terms of this indenture, she is to pay, the lessee may pay the same and deduct the amounts so paid, and also the necessary costs and expenses incurred by lessee therein, from the rental sums to be paid by the lessee to the lessor."

ants were lured into a feeling of safety and settlement and the principal defendant was away from Spokane, the attorneys for plaintiff knowingly took advantage of them by service of the notice and filing a complaint as indicated. Although the proceedings that the facts are such as to entitle the plainseem regular on their face, it cannot be said tiff's attorneys to bring the action at the time and under the conditions they did. To so hold would be an unconscionable wrong. Appellants would not only be doubly penalized for the delinquent rent, and the costs, but also forfeit the lease and lose a very valuable building for the unexpired term.

Plaintiff also appeals for the reason that the court apportioned the taxes against defendants only for the county and city levies, while she claims that she is entitled to recover for all the general tax levies. In view of the fact that we must dismiss the action we will not discuss this phase of the action, but leave the parties to bring such action or make such adjustment as they may be advised.

Reversed and remanded for dismissal.

MOUNT and MACKINTOSH, JJ., concur.

CHADWICK, J. It should not be understood that the court is reversing this case as a matter of equity, or because to affirm it would result in an unconscionable wrong. It is an action at law, and if the law be that plaintiff is entitled to recover it should be so declared.

I concur in the result for the reason that the authority to begin the action is to be determined by reference to the law of agency. At the time the action was begun the authority of plaintiff's attorneys was limited. They had authority to negotiate but no authority to begin an action until the negotiations had come to naught. I think this is clearly indicated by the telegram of July 7, 1916.

1. MASTER AND SERVANT 199 SERVANTS. Mining company's mule train driver and one of timbermen of mine held not fellow servants, so that driver could recover for injuries occasioned by timberman's negligence.

2. MASTER AND SERVANT 217(23)

SUMPTION OF RISK.

As

3. MASTER AND SERVANT TO SERVANT-NEGLIGENCE. It was negligence for mining company to have timber truck on track in mine just around curve in way of approaching mule train without warning driver of train of its presence, he having previously encountered such a truck only once, and having been promised it would not occur again.

4. MASTER AND SERVANT 288(5), 289(22)INJURIES TO SERVANT-CONTRIBUTORY NEGLIGENCE-ASSUMPTION OF RISK-QUESTION FOR JURY.

If driver of mine company's mule train received no warning or notice of additional danger of timber truck. being on track around curve, he was not, as matter of law, accountable for contributory negligence or assumption of risk.

Department 2. Appeal from Superior Court, Spokane County; D. H. Cary, Judge. Action by George Asbury against the Hecla Mining Company. From an order sustaining defendant's motion for nonsuit, and from judgment for defendant, plaintiff appeals.

Reversed and remanded.

Plummer & Lavin, of Spokane, for appellant. Cannon & Ferris and Wakefield & Witherspoon, all of Spokane, for respondent.

HOLCOMB, J. Plaintiff's action is to recover for personal injuries received on October 30, 1916, while driving a mule train consisting of seven cars carrying about two tons of ore each along and upon an 18-inch gauge railway track in an approximately one-mile tunnel belonging to the defendant's mine in Idaho. Plaintiff's duty was to stand on a small platform on the front car of the train and drive the mule. The speed of the train was about 8 miles per hour. While in the tunnel and at a curve he discovered a timber truck about 15 to 20 feet ahead of him on the track. He jumped from the ore train, but one of the timbers on the timber truck struck his right leg and broke it. In the operations of the mine different gangs of workmen, each under the charge of a shift boss, were engaged at different occupations. The duty of a timberman was to do the necessary timbering in the mine. It was customary to transport timbers on a small timber truck to places where needed, but not to have the timber truck on the track while the track was used for the purpose of hauling ore on the morning and afternoon shifts. Plaintiff had nothing to do with the timber gang. There was no signal system installed, and plaintiff had no warning or notice until the collision that the timber truck was on the track. About 20 minutes before the injury there was no timber truck on the track and · no timbering was being done in the tunnel when plaintiff came along from the shaft to get this load of ore. The noise of the ore train could be heard at from 1,000 to 1,200

feet distance.

At the commencement of the trial it was stipulated in open court as follows:

"It is stipulated in open court that there was no workmen's compensation law in the state of

At the close of plaintiff's evidence in open court it was stipulated as follows:

"It is stipulated between counsel for plaintiff and defendant in open court that in place of offering evidence as to what the rule of common law is in Idaho at the time of the happening of this accident, the court may take the decisions of that state and determine for itself, as a matter of law, what the Idaho rule is, which is applicable to this case."

At the close of plaintiff's case the defendant moved for a nonsuit. The court sustain

ed the motion, discharged the jury, and rendered judgment against the plaintiff, from which order and judgment this appeal is taken.

Defendant contends that the timbermen

were fellow servants with plaintiff, that plaintiff assumed the risk, and that no negligence was proven against defendant. We shall attempt to apply the law of Idaho with reference to the fellow-servant doctrine, and will adopt the definition formulated in Brayman v. Russell, etc., Co. (Idaho) 169 Pac. 932, which is:

"Whether or not respondent and the sawyers were fellow servants was, because of the disputby the jury, and the court instructed it as foled facts in this case, a question to be determined lows: In order to constitute the defendant a fellow servant with the fellers of timber, they must have been employed by the master in some common line of employment, by which employbusiness then in hand in the same line of emment they would co-operate in the particular ployment, or whose usual duties would bring them into habitual association so that they promotive of proper caution; but if you find in might exercise mutual influence upon each other this case that the plaintiff and the fellers of timber did not associate together in the same common work but were employed in different lines of from each other, the one not knowing what the work, and were engaged in working separately other was doing or how the work was being carried on by him, and nothing of their work in common, and not associating together in perent in a different part of the work, they would forming the work, but acting entirely independnot be fellow servants under the law, and the defendant could not escape liability for any injury caused by one to the other.' This instruction correctly states the law with respect to what constitutes a fellow servant. Relyea v. Kansas City, Ft. S. & G. R. Co., 112 Mo. 86, 20 S. W. 480, 18 L. R. A. 817; Union Pacific R. Co. v. Erickson, 41 Neb. 1, 59 N. W. 347, ski, 220 Ill. 324, 77 N. E. 190, 4 L. R. A. 29 L. R. A. 137; Illinois Steel Co. v. Ziemkow(N. S.) 1161; Chicago, etc., R. Co. v. Kneirim, 152 Ill. 458, 39 N. E. 324, 43 Am. St. Rep. 259; Chicago City R. Co. v. Leach, 208 Ill. 198, 70 N. E. 222, 100 Am. St. Rep. 216; Richardson v. City of Spokane, 67 Wash. 621, 122 Pac. 330: Putnam v. Pacific Monthly Co., 68 Or. 36, 130 Pac. 986, 136 Pac. 835 [45 L. R. A. (N. S.) 338, L. R. A. 1915F, 782, Ann. Cas. 1915C. 256]; Irwin v. F. P. Gould & Son, 99 Neb. 283, 156 N. W. 503; 18 R. C. L. 758."

This case does not depart from the principles of Barter v. Stewart Mining Co., 24 Idaho, 540, 135 Pac. 68.