is guilty of contributory negligence in returning too soon, is a question for the jury. Davis v. Graham, 29 Pac. 1007. 12. Where a miner knows defects and continues to serve he takes the risk after reasonable time elapses for his employer to keep promise to repair. Davis v. Graham, 29 Pac. 1007; Eureka Co. v. Buss, 8 So. 216. 13. Foreman is a fellow-servant. Stephens v. Doe, 73 Cal. 26. 14. For injuries to a boy of ten the defendant was held responsible, the boy being outside of his regular employment while obeying orders of another employe. Brazil Coal Co. v. Gaffney, 119 Ind. 455. 15. Master is not liable for injury caused by act of co-employe though higher in authority than the injured employe, nor for obedience to authority exercised without proof of right to use such authority. Wilson v. Dunreath Q. Co., 77 Iowa, 429. 16. Employe assumes risk only of known dangers. He is not called upon to make strict examination of the hoisting rig. Myers v. Hudson Iron Co., 150 Mass. 125. 17. A master is not bound to use the latest and safest machinery. Lehigh Coal Co. v. Hayes, 128 Pa. St. 294. 18. An infant of fourteen must avoid visible dangers. Id. 19. A miner takes the ordinary risks. Southwest Imp. Co. v. Smith, 85 Va. 306; 7 S. E. 365; Drew v. Gaylord Co., 4 Atl. 214. 20. Lessor is not liable for lessee's negligence. Smith v. Belshaw, 26 Pac. 834. 21. Consideration of reasonable to prove what is reasonable time. Eureka Co. v. Bass, 8 So. 216. 22. Notice of defect in fuse to superintendent is notice to the company. Id. time to wait for blast and evidence RICE ET AL. V. EGE ET AL. (42 Federal Reporter, 661. In the Circuit Court of the United States, Northern District of New York, 1890.) 1 Acquiescence in irregularly executed contracts. When an equitable arrangement has been made dividing or exchanging interests in oil leases between parties jointly owning in the same, reduced to writing, signed by one for all, and acquiesced in by all-such agreement will be upheld against the proper parties the same as if they had attached their signatures. 1 Sufficient proof of "non-productive" well. Where a certain payment was to be made in case certain wells when sunk should be found unproductive or fail to pay, it is sufficient evidence of such condition to show that the wells were bored through the oil-producing stratum without showing more than a trace of oil. It is not necessary that the experiment of shooting the same should be tried. At law. Tried by the court, a jury having been waived. HAMILTON WARD, for plaintiffs. CHARLES H. BROWN and JOHN E. BRANDEGEE, for defendant Treat. GEORGE L. ROBERTS, for other defendants. COXE, J. Many of the facts appear in the opinion rendered upon the motion to amend the answer (42 Fed. 658). These need not again be stated. Upon the merits, but two questions are presented: First, did the defendants enter into the agreement set out in the complaint? Second, were the wells on the Nelson and Dodson farms drilled to a sufficient depth to determine that they were unproductive? Upon the first of these questions the issue, as before determined, is a narrow one. The answer admits that the defendants were interested with the plaintiffs in a large number of oil leases in Allegany county; that on July 1, 1881, a settlement was had, and a division of the leases was 1 Gillespie Co. v. Wilson, 16 Atl. 36. made between the plaintiffs and the defendants, and, recogniz ing the binding force of the agreement upon both parties, and relying upon its provisions for their exculpation, the defendants allege that pursuant to its provisions they were entitled to notice, and an opportunity to examine the Nelson and Dodson wells, in order that they might satisfy themselves of their unproductiveness. It is true that the answer avers "that said agreement was signed by J. A. Ege, and that the defendants H. B. Huff and M. C. Treat never signed said agreement," but this allegation adds no new element to the discussion. The plaintiff's do not contend that Treat and Huff, with their own hands, affixed their signatures to the paper. In fact the agreement on its face shows that they did not. The contention of the plaintiffs is that Ege, as the representative of the other defendants and with authority from them, negotiated the agreement with Norton, who had like authority to act for the plaintiffs. This statement of the situation seems nowhere to be denied in the answer and is not now disputed by Ege or Huff. But were the question of Ege's authority an open one a similar conclusion must be reached. The contract of July 1st was an equitable one. In the division of the leases the most valuable, the Richardson lease, was assigned to the defendants. Every consideration of fairness required that the plaintiffs should receive property of equal value, or at least that the expense of testing it should not fall entirely upon them. For his interest alone in the Richardson lease the defendant Treat received $1,292.50. On the other hand the testimony fails to show that the leases assigned to the plaintiffs had any value at all. Besides, the plaintiffs were liable to lose, and they have since lost, the large sum expended in drilling the two wells in question. The contract being a fair one to all the defendants, Treat included, there is no room for the suspicion that its terms were concealed from him. Were the positive testimony of Treat's participation in all of these transactions eliminated from the case, the presumption that he had knowledge of them is irresistible. The defendants lived together in the same town. Treat had dealt in oil for twenty years. He was no novice. His place of business was directly across the street from Ege's bank. Their relations were intimate. On The evidence shows many joint ventures. They were in consultation regarding their oil interests immediately subsequent to the transaction of July 1st, and thereafter they bought property jointly and gave their joint note in payment, taking the title, however, in Ege's name alone. the 1st day of July, the same day that the agreement in question was made, the plaintiffs assigned to the defendants, Treat being named in the assignment, all their interest in the Richardson lease, except ten acres taken from the west side of the property. This assignment was recorded July 25, 1881. On the 13th of July, 1881, Treat assigned all his interest in the Richardson lease, and other leases, to Huff and Ege for $1,292.50; but he testifies that at that time he had ascertained, from recent developments, that the Richardson lease was the only one of value. On the 20th of July, 1882, Huff and Ege assigned to John Coast & Sons and H. and W. W. Rice their interest in the Richardson lease covering 46 acres of land. As the original lease was for 57 acres, this assignment, evidently, did not cover the 10 acres reserved by the assignment of July 1, 1881. On the trial Treat produced the original Richardson lease, the assignment by the plaintiffs to the defendants of July 1st, and his assignment to Ege and Huff. The fact that Ege delivered the assignment of the Richardson lease to Treat is persuasive evidence that the latter knew of the assignment. The evidence regarding the 10 acres is unsatisfactory and obscure. It is difficult to determine from the proof in whom the title to the 10 acres vested after the settlement of July 1st, and there is nothing authentic to show who first conveyed this property after that settlement. No written assignment or conveyance of the property has been introduced in evidence. The accounts of its disposition are not in harmony, the evidence leaving the matter very much in doubt. It is entirely clear, however, that the defendant Treat never obtained title to the 10 acres until after his assignment of July 13, 1881, to Huff and Ege. He swears that he obtained the assignment of the 10 acres between the 15th and 30th of July, 1881. No one pretends that it was prior to July 13th. It seems, therefore, impossible to account for his receipt of nearly $1,300, except upon the theory of the settlement of July 1st. He certainly knew that if this 46 acres was owned by eight persons instead of three, $1,300 was too large a sum for one of them to receive for his interest. And it can hardly be insisted that this sum covered the other leases, for he swears that before that time the parties had ascertained that there was no value to any of the leases except the Richardson lease. The impression derived from all these facts is that Treat could not have been ignorant of the transactions carried on for his benefit and in his name. He must have known of them, and, had they been unauthorized there would have been some evidence of renunciation or dissatisfaction on his part. But in addition to these cogent inferences the record contains positive testimony that Ege's authority from Treat was ample, besides evidence from Ege, and others, that Treat not only had knowledge of Ege's acts but subsequently ratified and confirmed them Treat denies this, but in many important instances his denial consists merely in a failure to recollect. The defendants must, therefore, be held to the contract for the following reasons: First, the answer practically admits that they executed it. Second, the presumption is strong that Treat must have known of its existence and assented to its terms. Third, the preponderance of testimony establishes Ege's authority to make the contract. Fourth, Treat subsequently ratified and confirmed it. Upon the remaining question the proof, establishing the unproductiveness of the wells, is clear. The character and extent of the test required must be measured by the contract and not by the opinion of witnesses. The contract provides for the payment of $1,000 if the Dodson and Nelson wells "prove to be unproductive as oil wells, or not paying wells, viz.: wells in which oil is produced in paying quantities." If the testimony establishes the proposition that the plaintiffs pushed their investigations sufficiently to show that neither the Nelson nor Dodson well was one in which oil could be produced in paying quantities they are entitled to recover. Their right can not be defeated by proof that a trace of oil was discovered, or even by proof that one of the wells might be made to produce a few barrels, |