the fellow-servant of the driver. Indeed, in no just sense has he voluntarily entered the service of the master. And the rule of volunteer does not apply to the case supposed, and therefore it was not error in the court of common pleas to refuse it."

The case of Wischam v. Rickards, 136 Pa. 109 (20 Atl. 532, 10 L. R. A. 97, 20 Am. St. Rep. 900), states the general rule as to volunteers to be as claimed by counsel for defendant. While it was held that if plaintiff was a mere volunteer he could not recover, the court says that, under the facts in the case

"While it may seem a little strained to call such a person a mere volunteer, the reason given for the nonliability of the master is more substantial, to wit, that the plaintiff's act of associating himself with the defendant's servant in the performance of the work, was done without the knowledge or consent of the master; and therefore he could acquire no better position than that of the servant with whom he associated himself."

The case is finally disposed of upon the ground that the plaintiff became one of the servants to assist in the defendant's act of delivering the wheel. The participation of the plaintiff was not that of an owner receiving his own goods, but was that of a servant assisting the servants of the defendant, and this circumstance brings it within the rule of nonliability. This is an exceedingly close case, highly exceptional in its facts, and, as the court says, apparently without precedent among the authorities."

The distinction is plainly pointed out in Cargill v. Thompson, 50 Minn. 211 (52 N. W. 648), cited by defendant.

A well-considered case, and one which reviews the authorities, both English and American, is that of Kelly v. Tyra, 103 Minn. 176 (114 N. W. 750, 115 N. W. 636, 17 L. R. A. [N. S.] 334). In that case Jaggard, J., says:

"There is, however, an increasing class of cases in which the exercise of proportionate care is held to be due

178 MICH.-19.

to servants of different masters, who assist in the performance of a service mutually beneficial to such employers. Thus a servant of a shipper, who, to prevent delay, aids the servants of a carrier in shunting cars, is not a mere volunteer assisting defendant's servants, although on request, but is regarded as having been on defendant's premises with a purpose of expediting the delivery of his own goods. The carrier is liable to him for the negligence of its servants. [Citing cases.] * So one with an interest, who is requested by another's servant to assist in adjusting or fixing an instrumentality, is not a mere volunteer, but is within the rule requiring the exercise of due care. [Citing cases.]

* *

"The distinction running through all the cases is this: That where a mere volunteer-that is, one who has no interest in the work-undertakes to assist the servants of another, he does so at his own risk. In such a case the maxim of respondeat superior does not apply. But where one has an interest in the work, either as consignee or the servant of a consignee, or in any other capacity, and at the request or with the consent of another's servants undertakes to assist them, he does not do so at his own risk, and, if injured by their carelessness, their master is responsible. In such a case the maxim of respondeat superior does apply. The hinge on which the cases turn is the presence or absence of self-interest. In the one case, the person injured is a mere intruder or officious intermeddler; in the other, he is a person in the regular pursuit of his own business and entitled to the same protection as any one whose business relations with the master expose him to injury from the carelessness of the master's servants.'

"[Citing many cases. ]"

Applying this rule to the facts in this case as claimed by the plaintiff, we must hold that the plaintiff was not a mere volunteer.

2. Was the plaintiff, as matter of law, guilty of contributory negligence? We think not. We are of opinion that it was a question for the jury. Upon this record it appears that the plaintiff had no reason to anticipate that Crankshaw would would start the motor when he did. Plaintiff was proceeding in a perfectly safe manner but for the active and unexpected conduct of Crankshaw. The language of Justice BROOKE, in

Wallin v. Railway Co., 172 Mich. 466 (138 N. W. 270), applies here:

"The claim of defendant that plaintiff should not be permitted to recover, because he selected the dangerous rather than the safe way of preparing for the coupling, is without merit. When he attempted to open the coupler, both cars and engine were at rest, and he believed the engine would not move until its engineer received a signal from himself. Had they remained stationary, there would have been no danger. We think he was not bound, as a matter of law, to apprehend that the conductor would appear and give the signal for the operation. His conduct, under the circumstances, in all its detail, was a proper subject for the consideration of the jury upon the question of his negligence."

3. As the case must go back for a new trial, some attention should be given to the assignments of error relating to the rulings of the court upon the admission of evidence. We think that what was said and done by the plaintiff and Crankshaw immediately before and at the time of the injury was proper subject of inquiry; also as to what the practice had been in carrying on the work there. Answers to questions covered by the first, second, fourth, eighth, and fourteenth assignments of error might well have been received. The other questions covered by the assignments of error relating to the rulings upon the rejection of testimony were properly ruled upon. Some of them relate to matters of mere speculation, and others relate to matters for the jury to determine, and were not matters of opinion. The other questions discussed are not likely to arise upon a new trial.

For the errors pointed out, the judgment of the circuit court is reversed, and a new trial granted.

MOORE, C. J., and STEERE, MCALVAY, BROOKE, KUHN, OSTRANDER, and BIRD, JJ., concurred.

CLARE COUNTY SAVINGS BANK v. FEATHERLY.

1. BILLS AND NOTES - EVIDENCE-PAROL AGREEMENT TO VARY TERMS OF WRITING-COLLATERAL CONTRACT.

While parol evidence is inadmissible to vary or contradict a valid written contract, as a promissory note, it is not incompetent to show in defense of an action against an accommodation indorser that the payee agreed to look after the insurance, and keep it in force upon the maker's stock of goods and fixtures, but failed to see that it was kept in force: the agreement did not contradict or vary the terms of the note; it was a distinct collateral undertaking although a part of the same transaction.'

2. SAME-PAROL EVIDENCE-RECOUPMENT-BANKS.

The rule admitting evidence of a collateral agreement is especially applicable where such agreement operates as an inducement for entering into the contract, and defendant is entitled to recoup his damages for breach of the collateral undertaking in an action by the payee, a bank, against him on the note.

3. SAME-DIRECTED VERDICT.

It became a question of fact whether such arrangement was made, upon plaintiff's testimony, disputed by defendant, that he signed the note on the express condition that the payee should look after the insurance and hold the policy as security for the debt.

4. SAME-WAIVER OF CONDITION.

The indorser did not waive the alleged condition where he knew of the fact that the insured property had been moved, but had no knowledge that consent had not been secured from the insurer.

5. SAME-REQUESTS TO CHARGE-INSTRUCTIONS.

The court rightly declined to instruct the jury as requested by defendant, that if the indorser desired to be protected by the insurance it was his duty to see that it was kept in force, since his contract with defendant relieved him of the duty.

Error to Charlevoix; Mayne, J. Submitted October For the general rule that parol evidence is not admissible to vary, add to, or alter a written contract, see note in 17 L. R. A. 270.

16, 1912. (Docket No. 116.) Decided December 17,

1912.

Assumpsit by the Clare County Savings Bank against Gerald Featherly, Blanche Featherly, and Frank Coleman upon a promissory note. Judgment for plaintiff as to two defendants, but in favor of defendant Coleman. Plaintiff brings error. Affirmed.

C. W. Perry, for appellant.

Harris & Ruegsegger, for appellees.

STONE, J. The plaintiff sued the defendants to recover the balance due upon a promissory note bearing date December 20, 1909, wherein the defendants promised to pay to the plaintiff, or order, six months after date, the sum of $700, with interest at the rate of seven per cent. per annum. The note was signed by the three defendants. There had been indorsed as paid upon the note the sum of $469.40 on May 17, 1911. Default after personal service was regularly entered as to the defendants Gerald L. Featherly and Blanche Featherly. The defendant Frank Coleman pleaded the general issue and gave notice that he would prove thereunder that he signed the note as surety only, for the other defendants, with the knowledge of the plaintiff, and that he only did so because the other defendants had given a chattel mortgage to the plaintiff on a stock of merchandise and fixtures at Clare, Mich., to secure the payment of said note, and that the other defendants and the plaintiff had the stock of merchandise and fixtures insured against loss or damage by fire and payable to plaintiff, as its interest might appear, and, at the time this defendant Coleman executed and delivered said note as surety, the plaintiff agreed with him that it would keep its mortgage and insurance as aforesaid on said property in force and effect and in its possession and control for the protection of the plaintiff, as well as of this defendant, until the payment of said note; that the