Newton v. Theresa Village Mut. Fire Ins. Co. 125 Wis. 289. ing the adjusters' statement before referred to. The statement of loss attached to the proofs placed the net value of goods destroyed at $7,197.49, in place of $4,089.11, as figured by the adjusters. The credit purchases are figured at $15,780.12, thus including the six invoices in question, but the item of deduction for "bills entered after the fire, $39.61,' does not appear. No deduction for depreciation from the inventory of February 10, 1902, was made, and the profits were figured at thirty-three and one third per cent. instead of twenty per cent., and the difference in these two items accounts for the principal part of the discrepancy between the adjusters' balance and the balance as appearing by the proofs. After the service of the proofs, and on September 2, 1903, the plaintiffs were examined on oath at Milwaukee, and Mr. "Newton testified that no merchandise received after the fire was included in the proofs of loss, and Mr. Rissman testified directly that the Durand & Kaspar goods were received before the fire and burned, but admitted that the Walsh, Boyle & Co. goods were not received till after the fire. This action was commenced December 9, 1903, and in the complaint it was alleged that goods to the amount of $7,197.40 were destroyed by the fire. Upon substantially these facts the defendants claim that wilful fraud was clearly proven. Upon the other side, the plaintiffs testify directly that the inclusion of the six invoices in the proofs and statement was entirely an innocent mistake. They point to the fact that they freely laid all the invoices before the adjusters, although some of them bore date after June 20th, and hence would on their face show that the goods could not have been received, that these invoices were taken away by the adjusters on July 13th, and that they did not see them again till the time of the trial; also that they did not personally draw the proofs, but gave to their expert who drew the proofs all the papers, including the adjusters' statement, in which the credit pur Newton v. Theresa Village Mut. Fire Ins. Co. 125 Wis. 289. chases appeared at $15,780.12, and the deduction of the Walsh, Boyle & Co. bills also appeared. Mr. Rissman explains his receipt for the goods on June 25th by stating that he went to the depot with his teamster to get some goods of whose arrival he had been notified; that there were other teams waiting for goods, and that he went in the station and signed receipts on several freight bills, the top one of which contained the initials of Walsh, Boyle & Co., and he supposed they were all Walsh, Boyle & Co. goods; that he told the teamster to wait and get the goods and bring them to the salvage room, and did not wait to see what they were; and this is substantially corroborated by the teamster. As to the Durand & Kaspar goods, he testified that he had told his partner, Newton, to order them in the middle of the week, and that he supposed they had arrived on Saturday, as such orders usually did. There was evidently much confusion and some excitement at this time as the result of the fire, the separation of the salvage, and the search for the inventory book, which was at first thought to have been burned, and it would be natural enough that there should not be much system in the management of affairs. The bills themselves were comparatively small in amount, and, while there is certainly evidence tending to show that their inclusion in the proofs was wilful, we are not prepared to say that the evidence necessarily calls for that conclusion in opposition to the findings of the trial court. Careless men doing business with unbusinesslike methods might easily make such blunders, and the trial court, with the witnesses before him, may well have reached the conclusion that honest blundering and carelessness was the true explanation of the entire difficulty. We cannot, therefore, reverse the judgment upon this ground. The objections that an inventory was not taken once a year, and that the inventory was not kept in a safe, may be easily disposed of. It is conceded that if the evidence was Newton v. Theresa Village Mut. Fire Ins. Co. 125 Wis. 289. sufficient to establish the fact that the inventory produced was in fact the inventory taken February 10, 1902, the fact that it was not in the safe at the time of the fire becomes immaterial. We consider the evidence sufficient on this point, and hence this objection is fully met. The original policies, of which the present policies were issued by way of renewal, were issued, two in November, 1900, and one in June, 1901. Inventories were taken in April, 1901, and in February, 1902, and from this latter date. until the happening of the fire no inventory had been taken, thus leaving an interval of sixteen months. The requirement is that an inventory be taken once a year. It would be unreasonable to construe this as meaning that each inventory must be taken exactly twelve months after the preceding one, on pain of a forfeiture. Had an inventory been taken in July, and the fire occurred in August, we think it could not be reasonably claimed that the requirement that an inventory be taken once a year had been breached. We therefore conclude that there had been no breach at the time of the fire in June. The final contention made is that the court erred in requiring each company to pay its pro rata share of the entire loss, when the policies of the Theresa and De Forest companies contained the following stipulation as a rider: "Permission is hereby granted for other insurance to an amount including this policy aggregating not to exceed seventy-five (75) per cent. of the actual cash value of the property; provided, however, that if at the time of the fire the total insurance on the property shall exceed said seventy-five (75) per cent., this policy shall hereby become void in the proportion of such excess to such total insurance." In reply to this contention it is argued that such a provision is in violation of sec. 1943a, Stats. 1898, which reads as follows: "No fire insurance company doing business in this state shall issue any policy containing any provision limiting the Charmley v. Charmley, 125 Wis. 297. amount to be paid in case of loss below the actual cash value of the property, if within the amount of the insurance for which premium is paid . . ." This provision is not as clear in its meaning as could be wished, but the evident intent is to guaranty that the insured shall, under the circumstances named, receive the full benefit of the amount of the insurance for which he pays. The words "cash value of the property" evidently refer to the property destroyed, not the property insured. Supplying the missing word, the provision simply means that if the total cash value of the property destroyed is less than the total insurance, as in this case it was, no provision attached to the policy shall be effective to reduce the amount to be paid by the insurance companies to a sum less than that cash value. Such was the case here, and consequently the so-called "three-quarters clause" has no effect. By the Court.-Judgments affirmed. CHARMLEY, Respondent, vs. CHARMLEY, Appellant. May 3-June 23, 1905. Appeal from county court: Perfecting of appeal: Amendments: Irregularities: Waiver: Changing nature of cause of action: Estates of decedents: Claims: Action, at law or in equity? Subrogation: Limitation of actions: Husband and wife. 1. On appeal from the county to the circuit court, submitting to a trial on the merits waives all defects in the appeal not prior thereto brought to the attention of the circuit court and duly insisted upon. 2. Under sec. 4031, Stats. 1898 (providing that any person aggrieved by a decision of the county court "may appeal therefrom to the circuit court . . . by filing a notice thereof with said county court within sixty days from the date of the act appealed from, ... together with such undertaking as is required" in sec. Charmley v. Charmley, 125 Wis. 297. 4032), a substantial compliance with the words of the statute is sufficient. 3. The prime essential in taking an appeal from the county to the circuit court is the filing of a notice of appeal within the time limited therefor, and, that being done, the filing of the bond afterwards operates to perfect the appeal. 4. It is not permissible to entirely change the nature of a cause of action by amendment,-substituting one in equity for one at law, or one on contract for one sounding in tort, or the contrary. 5. A claim filed in the county court by a widow against her deceased husband's estate for a sum of money alleged to have been loaned him is in the nature of an action upon contract, and, by an appeal to the circuit court, it there becomes an action pending for legal relief-an action to recover upon contract. 6. In such case it appeared from the testimony taken in the circuit court, among other things, that claimant had paid a mortgage on the homestead of herself and husband, placed thereon by another before the title came to the husband, which the husband had assumed and agreed to pay. There was no evidence that the property conserved was possessed by the husband at the time of his death, either in the form it was in at the time of the payment of the mortgage or in any other. The trial court made findings in accordance with such testimony, and, after allowing her claim as filed in the county court to be amended to correspond with such findings, concluded that, by right of subrogation, plaintiff's claim was a legitimate charge against her deceased husband's estate, and ordered judgment accordingly. Held: (1) If such evidence established a cause of action in claimant's favor, it was purely equitable to recover in the right of the mortgagee to whom the money was paid. (2) Such equitable assignment went no further than the mortgagor's interest in the property, the debt itself being merely kept alive so far as necessary to support the lien, not so as to constitute in the hands of the plaintiff any legal claim what ever. 7. Subrogation exists entirely independent of contract relations. It is wholly a creature of equity,-a mere means by which the substantial ends of justice may be accomplished. 8. If a person pays off a lien claim on property for which he is not, but another is, liable, so that such other would derive the benefit thereof if his interest in the property were entirely relieved from such lien, and such person acts in the matter, not as a mere volunteer, but to protect his own interest in the property, such interest being legal or equitable, and either present or con |