visions, which may be severed from the contract without impairing its effect or changing its character, will be suppressed or subordinated, if, in that way, and only in that way, the contract can be sustained and enforced. Id. 637. To so construe this second paper as to make it the duty of the plaintiff to do any and all kinds of railroad work would put upon it a construction at variance with the law and so utterly ridiculous and absurd that it cannot be supposed for a moment that such was the intention of either of the parties. In every case of a contract of employment where the parties know each other and the purposes of each other, at the time of entering into it, as they did here, and the terms of the contract are not to the contrary, the servant only engages to perform such service as he "can perform." If a person engage to do service which he cannot perform, his incompetence is cause for discharge. If a person make a binding contract to give employment which he fails to furnish for any reason not attributable to the fault of the employe or an act of God, such failure is a breach of the contract and an action lies. In this second writing, the kind of service not being mentioned, while in the first it is, it cannot be said that there is any contradiction between the writings as to the kind of service. But, if the second contract stood alone, this man was known, at the time of his employment, not to be qualified for the duties of a brakeman, fireman, engineer, conductor, or other position, requiring special knowledge, training, experience and skill. It was well understood between the parties that the company had other positions, the duties of which the plaintiff could perform, although he had but one leg. It could not have been in the contemplation of either of the parties that he would be required to do any work that such a man could not perform. No provision of the contract requires such a construction and to so construe it would wholly destroy its value to the plaintiff and defeat the intentions of the parties. It is not reconcilable with their situation, the subject matter of the contract, or their purpose, object and intention, apparent upon the face of the contract itself as well as from the conditions under which the contract was entered into. So, in legal effect, the two papers are alike. There was but one contract to which both relate, neither nor both of which contains it all, for the actual employment took place after the execution. of both, and resort may be had to both for its terms as far as they go. Freed from all erroneous conceptions of the case, the in

struction given for the plaintiff tells the jury substantially that the defendant is bound by that contract, and the first instruction given for the defendant, that the plaintiff was also bound by it and if he had failed to work to the satisfaction of his foreman or superintendent as provided in the agreement, the defendant had the right to discharge him.

But upon the defendant's theory that the two papers are separate and distinct and inconsistent and the first, therefore, discharged by the execution of the second the other two criticisms upon the instruction, given for the plaintiff, must be disregarded for the reason that the execution of the writing of May 1st, was in issue and to be determined by the jury. This writing was not mentioned in any of the pleadings of the case, but came into the case as evidence under the plea of non-assumpsit. The plaintiff denied on oath that he had signed it. Two witnesses testified that he did sign it in their presence. This made it necessary for the jury to say which of the two writings constituted the contract between the parties. Section 40, chapter 125 of the Code, reading, "Where any declaration or other pleading alleges that any person made, indorsed, assigned or accepted any writing, no proof of the handwriting of such person shall be required, unless the fact be denied, by an affidavit with the plea which puts it in issue," does not apply to writings so brought into the case. At common law, the adverse party had the right to require precise proof of all signatures and documents, making part of the claim of the party producing them, but this has been greatly modified-in some states, by rules of court, and in others by statute. 2 Greenl. Ev. s. 16. In Virginia, an act was passed February 5, 1828, dispensing with proof of the handwriting, "if the declaration alleges that they were signed by any person," unless an affidavit be filed disputing its genuineness. In 1850, after this statute was construed by the court in the case of Kelley v. Paul, 3 Grat. 191, the legislature passed the act as now found in said section 40, applying the rule to any writing, alleged in any pleading to have been made, etc. The instruction. for plaintiff is not open and the other objection that it ignores the transaction of May 1, 1897, upon the principles announced in the cases of McCreery v. R. R. Co., 43 W. Va. 110, and Price v. Ry. Co., 46 W. Va. 538, because an instruction for the defendant was given, covering said transaction as a part of its theory of the case.

So, upon the plan of the defense, the case presented, and the evidence related to two theories, one upon the hypothesis that the contract was embodied in the writing of April 27th, and the other upon the hypothesis that the writing of May 1st formed the contract. In such case, inconsistency in the instructions, if, indeed, there be any because of the conflict, is no objection and does not violate the rule referred to in the brief. Each of them is general, covering the whole case upon one of its theories. Each party is entitled to an instruction upon his theory of the case, if there is any evidence to sustain it. The conflict thus presented is of the issue itself, the very bone of contention in the case, and is not an inconsistency in the instructions. The instructions thus presenting the contradictory theories and declaring the law upon each of them, it is for the jury to determine what the facts are and thus apply the law as announced in one of the instructions and reject that contained in the one conflicting with it as inapplicable to the case, in arriving at a verdict. The language of defendant's first instruction shows that the application to the case of the principles of law, embodied in it, was dependent upon the finding of the jury as to whether Rhoades signed the writing 01 May 1st, for it says: "If the jury find from the evidence that the writing of May 1, 1897, marked, etc., was in fact signed by" Rhoades, etc., "the jury should take the writing of May 1, 1897, as embodying the terms," etc. So the conclusion is that the assignment of error, predicated upon the giving of said instruction, is not well taken.

The last assignment of error is grounded upon the refusal of the court to set aside the verdict and allow a new trial, it being insisted under this head that the work the plaintiff refused to do was such work as he could have done and not so laborious as some of the work he had already done; that as, under the contract, the defendant might discharge the plaintiff, when he ceased to "give satisfaction to the foreman or superintendent under whom" he worked, and he had complained all the time of the work assigned him, he was rightfully discharged under that. clause of the contract; that it is uncontradicted that the plaintiff refused to do work assigned him; and that, if the recovery might be for the probable life of the plaintiff, there was no evidence of his habits and expectation of life, and, therefore, no evidence upon which the damages allowed could have been assessed.

The refusal to do the work assigned at the time of the dis

charge is admitted, but the plaintiff claims it was of such character that he was not bound to do it. It may not have been harder than some other work he had done, but that is not the test. The issue was whether it was beyond his ability to perform without undue exertion. Upon this question, the jury had before them the nature of the work, the crippled condition of the plaintiff, all the facts and circumstances of his discharge, and the law of the case, dependent upon the facts, and it was their province to say what the facts were and thus determine whether there was cause for the discharge. The evidence is conflicting as to what was required of him when he refused to perform it. On this point Clifford and Spencer are not in accord and both of them differ from Rhoades. Then as to what work the plaintiff was able to do was a matter for the jury, and he was before them and they saw his condition as well as the demeanor of himself and the other witnesses. In addition to this it must be remembered that the burden was upon the defendant to show that the discharge was for good cause. 14 Am. Eng. Ency. Law, 797. His complaining from time to time about the kind of work assigned him is unimportant, if even relevant, for the reason that the work he did do was satisfactory to the foreman and supervisor of track.

The principles governing the assessment of damages and the measure of damages in cases of this kind have been given. Tenn. Coal, Iron & R. R. Co., supra. They are very similar to those applying in cases of damages for injuries to the person in which the amount is dependent upon loss of capacity for labor. In these cases, the standard mortuary tables are some times admitted as evidence on the question of the expectation of life. 5 Am. Eng. Ency. Law, 41-42 note. But it is not always done, nor has it been held necessary. Here the age and physical condition of the plaintiff were proved, and no reason is perceived why plaintiff's expectation of life should not have been left to the jury in this case, as is so often done in others, involving the same question, without more evidence bearing upon it than was before the jury.

There being no error in the judgment, it is affirmed.

Affirmed.

49 508 8 52 524

49 508 53 62

53 410

49 508

54 464

49 508

55 496

49 508 60 454

49

508

62

49

f65

82

508

WHEELING.

BALLARD V. CHEWNING et al.,

GEISER MANUFACTURING Co. v. SAME.

Decided June 13, 1901.

1. DEED-Fraudulent per se-Creditors.

That a court may pronounce a deed fraudulent per se, the intent to hinder, delay and defraud the creditors of the grantor must appear on the face of the instrument, without reference to extrinsic evidence. (p. 512).

125 2. TRUST DEED-Fraud Must Appear on Face.

A deed of trust to be valid need not be so certain and definite in its terms as to exclude the possibility of the existence of a secret reservation in favor of the grantor, fraudulent and inconsistent with the avowed purposes of the parties. To render the deed per se fraudulent such reservation must be apparent on the face of the instrument. (p. 513).

3. DECREE Reason For Need Not Appear.

It is not necessary to assign in a decree any reason for the decision, and, if a decree is substantially right, it should be affirmed, although the court below may have given an insufficient reason for its judgment. (p. 514).

4. EQUITY-Decree-Reason Given.

When in a suit in equity to set aside a deed of trust as fraudulent, the decree, settling the principles of the cause, recites that the court found the deed to be fraudulent on its face and did not consider certain parts of the record, including the depositions, such recital is held to be merely the assignment of a reason for the decision, and, in the appellate court, the whole record will be considered in determining whether the decree is erroneous. (p. 515).

5. CREDITORS-Presumption of Fraud.

A deed of trust, executed by one brother for the use of another and purporting to secure to the latter a debt of two thousand seven hundred and fifty dollars upon partially encumbered property worth not over seven hundred dollars, and the latter claims to have loaned the former parts of said sum at different times, knowing what property he had, and there are other circumstances as well as conduct casting suspicion upon the transaction, will be presumed and held to be fraudulent as to the creditors of the grantor. (p. 519).

Appeal from Circuit Court, Monroe County.