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furnish logs for its sawmill, supervised the work, and reserved the right to control the matter of their going to work and discontinuing it.

The court in Dick v. Gravel Logging Co. (1922) 152 La. 993, 95 So. 99, in holding that the Workmen's Compensation Act applied to pieceworkers as well as to day workers, said: "We cannot agree with the argument that, in order to bring the employment of the deceased within the terms of the Workmen's Compensation Act, it must be shown that he received 'wages,' meaning 'a daily rate of pay' under the contract in force at the time of the hiring. The workmen were paid off each week in accordance with a daily log scale made by an employee of the company. Decedent was really a worker, a laborer,-and the amount he received for his labor . . . 'was in an economic sense wages, and not profits.' The daily rate of decedent's pay was easily calculable by averaging his weekly earnings.

Under the narrow and restricted construction sought to be placed upon the statute by defendant's counsel, every workman employed to do piecework in shop, factory, home, or elsewhere would be classed as an independent contractor, although he is not more free from the control and direction of his employer than the most ordinary day laborer."

It was held in Tuttle v. EmburyMartin Lumber Co. (1916) 192 Mich. 385, 158 N. W. 875, Ann. Cas. 1918C, 664, that a workman hauling logs at a certain rate per thousand was a pieceworker and within the protection of the Workmen's Compensation Act. Said the court: "In our opinion there was such control over the work of Tuttle by the company as makes it inconsistent to say that Tuttle was an independent contractor. His work was limited by the right of the company to terminate it at any time, and it was for no definite period or amount. The loading and unloading were under control of the company, both as to time and place. True, he was in charge of his team while going from the skidway to the mill, but that was true of all the drivers, whether working by the month or the thousand.

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He was a person in service under employment of that company, and comes within the provisions of the Workmen's Compensation Law."

And in Burt v. Davis-Wood Lumber Co. (1924) 157 La. —, 102 So. 87, the act was applied to an employee hauling lumber from a sawmill to market at specified piece rates and subject to direction and control by the employer, although furnishing his own team. The court said: "The defendant had practical control and supervision of the haulers, and the absolute right to say when and what lumber should be hauled, and this carried with it the right and authority to discharge the employee at will. We think, under these circumstances, the doctrine of independent contractor has no application. . . . Nor does the fact that the employee furnished his wagon and team alter his relations with his employer; nor does such fact put the employee in the character of an independent contractor. . . . Of course, if the employee had engaged to haul the output of the mill at so much per thousand, furnishing sufficient teams and wagons, and employing assistants and drivers to do the hauling, a different case might be presented. In such a case it might well be said that the compensation was to cover profit on the investment in the teams and wagons, and not compensation for personal services."

The Compensation Act was held to be applicable in Van Simaeys V. George R. Cook Co. (1918) 201 Mich. 540, 167 N. W. 925, wherein the evidence showed that the employee, under the control and supervision of the employer, loaded and hauled dirt from a street-grading job at 75 cents per load. The court held that actual control and supervision exercised by the company constituted the relationship of master and servant, instead of that of independent contractor, and brought the applicant within the protection of the Workmen's Compensation Act.

In Conrad v. Cummer-Diggins Co. (1923) 224 Mich. 414, 195 N. W. 53, the court applied the act to a workman engaged to load wood at $1.50 a

fact a workman, an ‘employee,' within the purview of this statute.

carload, without an agreement as to result, does not prevent his being in the number of cars, and subject to direction as to what wood to load on the cars.

In State ex rel. Virginia & R. Lake Co. v. District Ct. (1914) 128 Minn. 43, 150 N. W. 211, 7 N. C. C. A. 1076, wherein it appeared that an injured workman had been employed at piece rates to cut and prepare ties, poles, and posts for a lumbering company, the court declared that the Compensation Act was intended to be remedial and liberally applied to cover every person hired and paid wages.

It was held in Schaeffer v. De Grottola (1914) 85 N. J. L. 444, 89 Atl. 921, 4 N. C. C. A. 582, that, although the New Jersey act failed to provide expressly for pieceworkers, the legislature did not mean to exclude them from the protection of the act.

In Rheinwald v. Builders' Brick & Supply Co. (1915) 168 App. Div. 425, 153 N. Y. Supp. 598, in applying the act to a piecework painter, the court said: "Was Rheinwald an 'employee' in fairness and in fact, within the meaning of the Workmen's Compensation Law? Was he of the grade and status of worker, rather than of the grade and status of independent enterpriser? I am of opinion that he was, and that such a holding is essential to effectuate the purpose of the act, in transmitting the burden of this bereavement from the scanty purse of this workingman's widow and children to all the patrons of the product or service furnished by his employer. The fact that he was to be paid a lump sum or 'by the job' cannot be recognized as taking him out of the class of 'employees.' The fact that his contract to do the work was in writing is not decisive on that issue, nor the fact that by it he made certain undertakings of satisfaction of the employer or replacement if the finished work did not endure an expected length of time. The fact that his employment by the respondent was casual or intermittent cannot deprive him of the status of employee, in the absence of explicit legislative pronouncement to that effect. The fact that he furnished tools or materials, or undertook to do a specified job' or produce a given

On a later appeal of the Rheinwald Case, however, the claim was dismissed on the ground that the deceased was an independent contractor (1916) 174 App. Div. 835, 160 N. Y. Supp. 1143, affirmed in (1918) 223 N. Y. 572, 119 N. E. 1074.

A woodcutter, paid at the rate of $5 a cord and subject to supervision, has been held an employee within the Compensation Statute. Fancher v. Boston Excelsior Co. (1923) 235 N. Y. 272, 139 N. E. 265.

I was said in Komula v. General Acci. Fire & Life Assur. Corp. (1917) 165 Wis. 520, 162 N. W. 919, that an employee was within the act regardless of the fact that his wages were paid on a piece-rate basis.

In a claim for compensation it is immaterial whether the employee was paid by the day or by the piece, proIvided the work was done under the supervision of the employer. Beaulieu v. Picard (1912) Rap. Jud. Quebec 42 C. S. 455, 7 D. L. R. 2.

A coal miner working at piecework, and under the control of the company, which can discharge him, is within the protection of the act. Lilly v. Haynes Co-op. Coal Min. Co. (1923) - N. D. -, 196 N. W. 556.

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The reported case (McKINSTRY V. GUY, ante, 837) holds that a coal miner, paid so much a car and not under contract to do any certain amount of work or in any particular place in the mine, is not an independent contractor, but an employee of the mining company within the meaning of the Workmen's Compensation Act, and consequently within the protection of the statute.

In accordance with the general rule, it has been held that an award under the act will be annulled where it is shown that the workman was in fact an independent contractor instead of a pieceworker. Donlon Bros. v. Industrial Acci. Commission (1916) 173 Cal. 250, 159 Pac. 715; Fidelity & D. Co. v. Brush (1917) 176 Cal. 448, 168 Pac. 890; Clark's Case (1924) Me. 126 Atl. 18; Gross v. Michigan Iron & Chemical Co. (1922) 219 Mich. 200,

189 N. W. 4. Thus, on appeal, the court in Donlon Bros. v. Industrial Acci. Commission (Cal.) supra, annulled the finding and award of compensation by the commission, because based on the erroneous assumption that the workman was a pieceworker rather than an independent contractor. The court indicated that the award would have been proper if in fact there had been an employment at piecework.

It has been said that one who is not an employee, either by the day or as a pieceworker, but an independent contractor, is not within the protection of the act. Clark's Case (1924)

Me. - 126 Atl. 18; Prince v. Schwartz (1920) 190 App. Div. 820, 180 N. Y. Supp. 703.

Basis of compensation.

In several decisions it has been held that in the case of a pieceworker the basis of compensation under the act is the average weekly wage. Ex parte W. T. Smith Lumber Co. (1921) 206 Ala. 485, 90 So. 807; Helmuth v. Industrial Acci. Commission (1922) 59 Cal. App. 160, 210 Pac. 428; Bell v. Albert Hanson Lumber Co. (1922) 151 La. 824, 92 So. 350; Dick v. Gravel Logging Co. (1922) 152 La. 993, 95 So. 99; Burt v. Davis-Wood Lumber Co. (1924) 157 La. —, 102 So. 87; Shaw v. American Body Co. (1919) 189 App. Div. 365, 178 N. Y. Supp. 369.

Where such a statute allows 55 per cent of the claimant's average wage, $9.67 per week on a finding that the average

wages at piecework were $17.58 has been held to be a proper award. Bell v. Albert Hanson Lumber Co. (1922) 151 La. 824, 92 So. 350.

The court in Conrad v. CummerDiggins Co. (1923) 224 Mich. 414, 195 N. W. 53, held that the average daily wage of a pieceworker loading wood was a proper basis for calculating the amount of compensation under such a statute.

It has been held in New Jersey that, where the act allows 50 per cent of daily wages, but says nothing about the pieceworkers, it is proper to consider the fact that the applicant was capable of turning out work at the

rate of at least $4 per day, and to base an award thereon. Schaeffer v. Grottola (1914) 85 N. J. L. 444, 89 Atl. 921, 4 N. C. C. A. 582.

In case of partial disability of a pieceworker in a coal mine, it has been held that an award based on losses in earning power should be affirmed. Freeman Coal Min. Co. v. Industrial Commission (1924) 312 Ill. 556, 144 N. E. 326. It appeared therein that the applicant, injured by falling slate, was able to average only 7 tons of coal a day at $1.04 per ton, whereas prior to the accident his average was over 12 tons per day. The commission awarded $8.36 per week for permanent partial disability.

In Shoal Creek Coal Co. v. Industrial Commission (1921) 300 Ill. 551, 133 N. E. 218, it was held that under the Workmen's Compensation Act a pieceworker in a coal mine was not entitled to an award for partial disability, it appearing that a higher rate paid by the company after the accident more than offset any loss in earning power.

In the reported case (McKINSTRY V. GUY, ante, 837) it is held that where a coal miner working on a piecework basis has worked at the job only two or three months before suffering injury, it is proper to base an award on the average weekly wage of one engaged in the same grade of employment during the twelve months immediately preceding the accident, and that the compensation should not be reduced because of the mine running only part time.

Where a piece worker employed as a weaver was injured after working only six months at the job, it was held to be proper under the Workmen's Compensation Act to award compensation on the basis of the average earnings of a fellow workman under very similar conditions during the preceding year. Thibeault's Case (1920) 119 Me, 336. 111 Atl. 491.

And similarly, where a mechanic had worked at piecework only a short time before his injury, it was held that the proper basis of the award of compensation under the act was the average weekly wages of other em

ployees in the same class. Shaw v. American Body Co. (N. Y.) supra.

In Centralia Coal Co. v. Industrial Commission (1921) 297 Ill. 513, 130 N. E. 725, it was held that the Workmen's Compensation Act was intended to provide compensation on the basis of the average earnings of miners engaged in similar work, where it appeared that a piecework miner, due to no fault of his own, was earning a less amount at the time of his injury. The statute provided that "in the case of injured employees who earned either no wage or less than the earnings of adult day laborers in the same line of employment in that locality, the yearly wage shall be reckoned according to the average annual earn

ings of adults of the same class in
the same (or, if that is impracticable,
then of neighboring) employments."
The court said: "Where his [appli-
cant's] inability to earn as much as
the average miner in the mine is not
due to his fault, or to the fact that he
is below an average miner, but is due
to a condition under which he is put
to work by his employer, which is not
a normal and recognized incident of
the employment, in such case it
would appear to have been the inten-
tion of the legislature that such em-
ployee should be entitled to compensa-
tion based upon the average wage of
the adults employed in said mine in
the same class or grade of employ-
ment."
R. E. La G.

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(97 Vt. 495, 124 Atl. 568.)

Subscription, § 10 effect of incurring expense.

1. A subscription to a charitable object cannot be revoked after the promisee performs acts, expends money, or incurs enforceable liabilities on the faith of it in furtherance of the enterprise intended to be promoted.

[See note on this question beginning on page 868.] Subscription, § 1 construction recovery favored.

2. Subscription agreements for public or quasi public enterprises are favored in law, and as a matter of public policy are construed, if they reasonably may be, to support a recovery thereon.

[See 25 R. C. L. 1398; 4 R. C. L. Supp. 1630.] Subscription, § 1 tion.

rule of construc

3. A subscription contract is to be construed in accordance with the purpose of the parties making it. Subscription, § 4- who may enforce.

4. The society for which a charitable subscription is intended may enforce it, although the agreement is under seal and is made solely with the other subscribers.

Subscription, § 4 effect of performance by society.

5. Subsequent performance of the

agreement by a society for whose benefit a subscription is made in reliance on the subscription gives it a standing to enforce the subscription.

[See 25 R. C. L. 1402; 4 R. C. L. Supp. 1630.]

Subscription, § 11 — enforceability.

6. In the absence of any consideration for the undertaking, a subscription for a charitable or benevolent purpose is a continuing offer to make a gift, which is subject to withdrawal or revocation, which will be effected by the death of the subscriber, and is unenforceable.

[See 25 R. C. L. 1408.] Subscription, §§ 10, 11 consideration.

effect of

7. A subscription to a charitable object made on a sufficient consideration is not revocable or affected by death of the subscriber.

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8. The death of a subscriber for the benefit of a charitable society before the amount upon which the subscription is conditioned is secured does not make the subscription unenforceable when the necessary amount is subsequently secured, where efforts to complete the subscription and expenses upon the faith of it were made before the death.

Subscription, § 11 when death revokes subscription.

9. The rule that the death of a subscriber to a benevolent or charitable purpose works a revocation of the subscription applies only in cases where the decedent might himself have revoked the promise at the time of his death.

[See 25 R. C. L. 1408.] Subscription, § 6 necessary amount.

time for securing

10. When the time for securing the amount necessary to make binding subscriptions to a charitable object is not stipulated, the law fixes a reasonable time.

Appeal, § 471 - presumption as to inference of facts.

11. It may be presumed in support of a judgment that the trial court inferred a fact where the inference is warranted by the facts found. Appeal, § 471 effect of statute on right to inferences.

12. In probate proceedings, except where the allowance or disallowance of a will is concerned, there is no right to trial by jury so as to come within the operation of a statute requiring a review to be founded on facts reduced to writing, unaided by any inference, when a question of fact that entitles either party to a trial by jury is tried by the court. Subscription, § 6 necessity that all agreements shall be counterparts.

13. A condition that a subscription to a charitable object shall not become binding until bona fide subscriptions to the stipulated amount have been secured does not require that all instruments containing signa

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14. An exception "to the findings in finding 21" in a proceeding to enforce a subscription agreement is too general to raise the question that there was no evidence tending to show that obligations were incurred in reliance on the subscription, where the acts covered by the finding were numerous, so that the exception did not point out the matter complained of. [See 2 R. C. L. 94; 1 R. C. L. Supp. 393.] Appeal, § 243 exception. 15. To make an exception available, it must reasonably indicate the fault, and not leave the court in ignorance of the precise ground on which it is predicated.

necessity of specific

[See 2 R. C. L. 94; 1 R. C. L. Supp. 392; 3 R. C. L. Supp. 80.] Evidence, § 1427 - subscription

reliance necessity of evidence.

16. Reliance on a subscription sufficient to render it binding may be founded on circumstances and need not be supported by direct evidence. Appeal, § 240-sufficiency of brief.

17. A mere statement in a brief that specified evidence was erroneously admitted without discussion is not sufficient to bring the matter before the appellate court.

Appeal, § 973 — retention of case by appellate court.

18. The county court cannot, in a proceeding to enforce a subscription agreement against a decedent's estate which came to it from the probate court, keep the case on the docket with the court for subsequent proceedings, where the statute provides that the final decision and judgment in cases appealed shall be certified to the probate court by the supreme or county court, and that the same proceeding shall be had in the probate court as though such decision had been made in such court.

EXCEPTIONS by defendant to rulings of the Caledonia County Court (Willcox, J.) made during the trial of proceedings brought to enforce a subscription agreement which resulted in a judgment for plaintiff. Affirmed in part.

The facts are stated in the opinion of the court.

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