and arrange its track that such a light fall as two inches would not render its track dangerous. It is bound to provide for and guard against such contingencies which are so likely to happen.

While it is alleged that the company was negligent in allowing the spaces between the tracks to become filled with snow and rubbish, yet it does not appear that such negligence caused or contributed in any way to the injury. A party must, of course, trace his injury to the negligent act, or, in other words, the neg. ligence must be the proximate and direct cause of such injury. Now, had the plaintiff been injured while passing from one track to another through the snow in order to perform an act in the line of his duty, there would be ground for saying that the negligence of the company in placing or leaving the snow where it did caused the injury. But that was not the case. It is obvious the car was derailed by something on or near the rail on which it was moving. It does not appear that the snow that was piled between the tracks in the yard contributed in any way to the accident. The defendant asked several instructions, only two of which were given by the court. The refusal to give such instructions was excepted to. We think the fourth instruction was ap plicable to the evidence in some phases of it, and should have been given. It is as follows: "The court instructs you that you cannot find the defendant liable in this case by reason of the piles of snow which were between the tracks of the yard in which the plaintiff was employed at the time of the accident." The correctness of this instruction is obvious from the remarks which we have already made, and the refusal to give it was error. Some other points were discussed on the argument relating to the admission of evidence and that the verdict was excessive. We shall express no opinion upon these points, but reverse the judgment, and send the case back for a new trial, because of the refusal of the court to give the instruction just referred to. The judgment is reversed, and a new trial ordered.

MERRILL RAILWAY & LIGHTING Co. v.
CITY OF MERRILL.

(Supreme Court of Wisconsin. Oct. 20, 1891.) MUNICIPAL CORPORATIONS STREET LIGHTINGPOWER TO CONTRACT FOR-PLEADING.

1. A contract by which a city agreed to pay an electric light company $2,050 per year for eight years, in quarterly installments, for the lighting of its streets and its city hall, will not be presumed to violate its charter, which prohibits the city from levying a tax for general city purposes in any one year in excess of 2 per cent. of the assessed valuation of the property in the city, and which declares that the city shall have no power to borrow money or contract any debt which cannot be paid out of the revenues of the current fiscal year; and, therefore, in an action by the electric light company against the city, a complaint which alleges the contract, and its breach by the city in refusing to pay two quarter-yearly installments, is not demurrable on the ground that the city had no power to en

ter into the contract.

2. Another provision in the charter, which requires the assent of the voters of the city to

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special taxes for the purchase of fire-engines, was purposes, etc., levied “in addition to the amount herein limited for taxes for general city purposes," does not require the assent of the voters to a contract by the city for lighting its streets, where the general tax of 2 per cent. enables the common council to meet the expenditure, since such general tax may be applied by the common council to any legitimate municipal purpose, in cluding street lighting.

Appeal from circuit court, Lincoln county: CHARLES M. WEBB, Judge.

Action by the Merrill Railway & Lighting Company against the city of Merrill on a street-lighting contract. Defendants demurred to the complaint because it failed to state a cause of action. From an order overruling the demurrer, defendant appeals. Affirmed.

The complaint alleged that plaintiff, a corporation, had succeeded to the rights of the Merrill Electric Lighting Company, a copartnership. That in the months of September and October, in the year 1889, the defendant, city of Merrill, acting by and through the common council of said city, duly made and entered into a contract with said Merrill Electric Lighting Company for lighting the public streets of said city and the city-hall, a public building of said city, with incandescent electric lights, by the terms of which contract said Merrill Electric Lighting Company undertook and agreed to provide and furnish the necessary power, poles, wires, lamps, and appliances, and maintain and operate 100 electric street lights, to be located as said city should direct, subject to certain provisions contained in said contract, and 25 electric lights in said cityhall, 25 of such street lights to be of 32 candle power, the balance of such street lights and the lights in the city hall to be 16 candle power, for the term of 8 years, for the sum of $2,050 per annum, to be paid quarterly; and the defendant, acting by and through its common council, in and by said contract, undertook and agreed to pay said Merrill Electric Lighting Company for the aforesaid lights, so to be furnished, maintained, and operated, the sum of $2,050 per annum, payable quarter-yearly during said term of 8 years. The complaint further alleged that the company had fully performed its part of the agreement in completing the electric light plant, and placing the lights, and that the city council, on December 9, 1889, had duly accepted and approved the company's work. It also alleged that the city had failed to pay the two quarter-yearly installments falling due August 17, 1890, and November 17, 1890, respectively, on the ground, as stated by some of the members of the council, that the contract under which plaintiff furnished the lights was not valid and binding, and that the said common council had no power or authority to enter into such a contract. The complaint further alleged that in March, 1891, the common council agreed to enter into a substituted contract with plaintiff, by which it should furnish arc lights in place of a portion of the incandescent lights, and in which substituted contract the city also expressly agreed to pay for the lights theretofore furnished by plaintiff. That another condition of

the substituted contract was an amendment of the city charter, empowering it to enter into the contract, which amendment was duly made by the legislature March 19, 1891. That on May 11, 1891, the city council attempted to repudiate the substituted contract, and has refused to pay the two quarter yearly installments of August 17 and November 17, 1889. The prayer of the complaint is for judgment for these two installments, with costs.

S. M. Hoyt, Cate, Jones & Sanborn, and W. F. Vilas, for appellant. Curtis, Curtis & Reid, for respondent.

"

COLE, C. J. The question raised by the demurrer is, had the defendant city authority under its charter to incur the indebtedness mentioned in the complaint? The action is to recover two quarterly installments, stipulated to be paid by the terms of the contract entered into by the common council of the city and the assignor of the plaintiff. This contract provided for lighting the public streets of the city and the city-hall with electric lights. The contract has been assigned to the plaintiff company, which, it is alleged, has succeeded to the rights and interests of its assignor, and claims to have performed all the conditions of the contract on its part to be performed. The contract was to continue for eight years, and the lights to be furnished were to be paid for at the sum of $2,050 per annum, payable quarter yearly during that period. It is object. ed that the common council had no power to make such a contract under its charter. Section 148 of the charter declares that "the city shall have no power to borrow money or contract any debt which cannot be paid out of the revenue of the fiscal year, which shall commence on the first day of December of each year. Chapter 32, Laws 1885, (volume 2, City Charters.) By section 147 it is provided that "no tax for general city purposes shall be levied in any year exceeding two per cent. of the assessed valuation of the property in the city in that year." These provisions clearly restrict the power of the common council to contract debts and in raising money by taxation for general city purposes. Now, did it appear from the complaint, or were it a necessary inference from the facts stated therein, that the fund raised by the 2 per cent. tax had been exhausted, and that the indebtedness incurred on the contract would exceed the revenue of the fiscal year, we would hold the demurrer well taken. But Do such fact appears, nor can any such inference be made from what is stated. That is defensive matter purely, and should be set up by answer, if such be the case. The presumption must be that the city is able to meet its obligations and to pay its just debts, nothing appearing to the contrary. It is true the contract is to continue for eight years, but the city will have only to provide for and pay a debt of $2,050 during any fiscal year. We cannot presume that this sum will exceed the amount the city will realize by the 2 per cent. tax, or that the indebtedness incurred each year on the contract will go beyond the revenue of such fiscal

year. Therefore, we are unable to sustain the position of the learned counsel for the city, that the common council had no power under its charter to make the contract for lighting its streets and pub lic buildings.

But it is further objected that the power of the city to make such a contract is re stricted by section 119 of the charter. That section provides as follows: "In addition to the amount herein limited for taxes for general city purposes, special taxes may be levied for the purchase of fire-engines, cemetery grounds, public squares, gas purposes, and other objects of public utility; but no such tax shall be levied unless the same shall first be rec ommended by the council, and afterwards submitted to a vote of the people, and approved by them. Whenever the council shall recommend such a tax, it shall specify the amount to be raised, and the object thereof, and cause notice thereof, and of the time and place of voting there on, to be published in the same manner as in case of the annual city election." Now, it is said that this provision clearly shows that the legislature intended that the power to raise money for lighting the public streets should only be exercised by the common council when the electors of the city by a vote have approved of such expenditure. We cannot concur in that construction of the various provisions of the charter referred to. According to our view, the common council can apply the 2 per cent. tax to any legitimate municipal purpose, in their discretion. It is not claimed, nor can it well be with any reason, that the lighting of the streets of a city is not such a purpose; for it is ob vious that it is as essential and necessary for the safety and convenience of the citizens that the streets of a city should he properly lighted at night as that they should be kept in repair for travel upon them. Indeed, the public use of the streets would be greatly impaired, if not wholly destroyed, if they were not lighted; and certainly the protection and safety of travelers upon them can only be secured by lighting them in cities and large towns, which are so frequently the resort of the criminal class. The correctness of these remarks is too obvious to require any illustration or further comment. Our construction of section 119 is that it authorizes, in addition to the 2 per cent. tax, a special tax for the purchase of fireengines, cemetery grounds, public squares, gas plants, and other objects of public util ity, where the electors by a vote favor such an expenditure of money; but it does not, and was not intended to, prohibit the common council from purchasing these things if the 2 per cent. tax enables them to make such a purchase; for providing fire-engines to extinguish fires, or cemetery grounds in which to bury the dead, or the purchase of a gas or electric plant for lighting the streets, are all essentially works of public utility, and come within the objects for the attainment of which municipal governments exist, as much as any which can be suggested. But the legislature in the charter has placed a restriction on the power of the commo

1. A written contract for the sale of a threshing machine warranted the machine to do good work, gave the purchaser five days in which to make a test, and provided that, if the machine failed to fill the warranty, the purchaser should notify the agent making the sale, who was to have a reasonable time to remedy the defect, and that, if the latter should be unable to do so, the machine might be returned, and the purchase money refunded. On making the test, the machine failed to do good work, and the agent, who was present, was unable to remedy the defect. The purchaser positively refused to pay the purchase price, and offered to return the machine. The agent then verbally agreed to extend the time for making the test so as to suit the purchaser's convenience, and promised to remedy the defect, and to take back the machine if he did not succeed in making it do good work; and, in reliance on this verbal agreement, the purchaser paid the price of the machine. Held, in an action by the purchaser to recover the price so paid, that evidence of the verbal agreement was competent, as it was a new and distinct agreement, on a new consideration, and was not objectionable as being a variation of the prior written contract by a contemporaneous parol agreement.

2. An agent of a threshing-machine company, empowered to sell machines generally in a given territory, has the implied authority, on the purchaser's refusal to accept a machine under the written contract of sale, to verbally extend the time provided in the contract for testing the machine, though such contract contains a clause that no verbal agreement of any kind appertaining to the order will be recognized, and that all agreements must be in writing.

3. Where the company's answer admitted the agent's authority to make the sale in question, the company could not have been prejudiced by the introduction in evidence of an affidavit used by its attorneys on a motion for a continuance, admitting that the person making the sale was its agent.

Appeal from circuit court, Dane county; ROBERT G. SIEBECKER, Judge.

the purchase money, one of which he has paid, and the other has been negotiated, so that he is liable to pay it to the holder and owner. He sues for the full consideration paid and agreed to be paid, and his right to recover that amount cannot, under the circumstances, be disputed, unless he has lost the right by failing to do something which the contract required him to do. The ingenious counsel for the defendant has assigned 20 errors to the rulings of the court below, and which he relies on for a reversal of the judgment; but it will not be necessary to notice them in detail. Our view of the main question involved will practically dispose of the case.

The defendant admits in its answer that the machine was sold by E. L. Phelps, its agent, to the plaintiff, at Madison, and that Phelps had authority to make such sale, having the charge of the machine, and the right to offer it for sale, and to sell it. The plaintiff signed a printed order or contract for the machine, which contains the conditions of the sale as first made. The material clause of this contract provides that, if inside of five days from the day of the first use the machinery shall fail to fulfill the warranty, written notice shall be given the defendant company, and also the local agent from whom the same was purchased, stating wherein it failed to fulfill the warranty, and a reasonable time allowed them to get to the machine and remedy the defect. If the machinery could not be made to fill the warranty, the defective part was to be returned to the place where received, and another furnished which would perform the work, or the money and the notes given for the purchase price returned. The machine was delivered to the plaintiff about the 26th of July, 1888, and was set up for use on the 6th of August. On the first day's trial the machine proved defective in many important respects. The agent, Phelps, was present in the afternoon of the day, and was informed of the defects, and what parts had broken. He looked the machine over, said it was properly set up, and suggested some changes. But the machine did not work well when, these changes were made, and it never, in fact, was changed or repaired so as to do good work as a thresher. This the testimony most clearly and conclusively proves. At the day of the trial of the machine the plaintiff had not accepted it, except con

Morris & Morris for appellant. F. J. & C. F. Lamb and J. M. Olin, for respondent.

COLE, C. J. In this case the plaintiff seeks to recover the consideration which he has paid for a thresher which the defendant company sold him with an express warranty that with proper use and management the machine would do as good work as any other of its size made in the United States. The plaintiff claims to have fairly tested the machine, and found it defective, and not fulfilling the warranty, so he returned it to the place and person where it was received. gave two negotiable promissory notes for

He

for the purchase money. When urged to settle and give his notes according to the contract, he positively refused to do so, told the agent he was not satisfied with the machine, that it did not do good work, offered to take it back to the place where he received it, or told the agent he surrendered it to him where it was, and that he was through with it. The agent then said to the plaintiff that he would give a longer time to try the machine than the contract allowed,-that he would give all the time the plaintiff wanted for the purpose, and that the defects would be remedied, and the machine made to work satisfactorily, or, if not, the machine might be returned, and the notes and

money would be given to the plaintiff. This is the plaintiff's version of the new contract which was then made. It is obvious that it changed materially, or rather superseded, the terms of the written contract, and all the testimony tending to prove it was received by the court against the objection of the defendant. Was the testimony admissible? It is insisted that it was not, (1) because it tended to change the terms of the written contract; and (2) because the agent had no authority to make this change in the terms of the sale. The rule which excludes parol testimony to contradict or vary the terms of a written instrument has no application where the object of such testimony is to show a new, subsequent agreement, involving the same subject-matter. It is often shown that the old agreement has been abandoned, or that time and place of performance has been changed, by subsequent parol contract. This is elementary law. Contemporaneous oral agreements are excluded, because the writing is presumed to contain the final contract of the parties; but it is compe. tent to prove a new and distinct agree. ment upon a new consideration, whether it be a substitute for the old, or in addition to and beyond it. 1 Greenl. Ev. § 303. Such was the effect of the oral testimony in this case. It tended to show that the written contract as to the time of the trial of the machine had been abandoned, and a new agreement substituted. The home office was duly notified that the machine did not work well, and was defect ive, and of course the local agent had all the knowledge it was possible to give on the subject, as he was on the ground when it was tested.

Had the agent authority to make this modification of the written contract, and bind the defendant? We think he had. He was intrusted with the machine, to sell on such terms as might be agreed upon. He was not an agent to make this sale alone, but sales generally, in a given territory, and it must be presumed that he had the power to sell the machine in question. This must be presumed from the nature of the case. It appears that the plaintiff had refused to receive and accept the machine under the written contract. The agent then agreed, if he would retain it and pay for it, he might have a reasonable time to test it, fix it up, and make it work satisfactorily; and upon this agreement we must assume the machine was accepted and the notes given. If this new agreement had been reduced to writing, there would be no question as to its binding force on the defendant. There is a clause below the plaintiff's signature, by way of rotice, to the effect that "no verbal agreement of any kind appertain. ing to the order will be recognized, and that all agreements must be in writing. If the agent had power to bind the defendant in writing to a new agreement, we see no good reason for holding that he could not bind it by a parol contract. Beyond all controversy, the agent was authorized to sell this and other machines for the defendant, and this necessarily implied authority to agree to what he did. It is

true, some of the officers of the defendant testified that Phelps had no authority to give any warranty other or different from the printed warranty, nor to vary the terms of the sale, or extend the time for the trial of the machine. Now, it is apparent that these witnesses testified rather to a question of law than an existing fact. They could not, however, do away with the fact that Phelps was authorized to sell the machine, and this carried with it the implied power to make the sale on the terms he did. The jury found that Phelps refused to receive the machine when it was tendered to him on the first day of its trial, and induced the plaintiff to retain it, on his promise to remedy the defects, and that he would make the machine fulfill the warranty. It would be a fraud on the plaintiff to compel him, under the circumstances, to keep the threshThe evidence shows that it is a worthless machine, or nearly so, and that the plaintiff used every reasonable means to make it a good one. The defendant's agents surely were given ample opportunity to set up the machine, to remedy all defects, so that it would work satisfactorily to the purchaser, and do good work, but they utterly failed to make it answer the warranty.

er.

On the trial the plaintiff offered in evidence an affidavit of the defendant's attorney used on the motion for a continuance, in which it was stated that Phelps was the agent of the defendant, and conducted the transactions out of which the action arose. This was objected to. The answer, as we have said, admitted that Phelps was the agent of the defendant for the purpose of making sale of the machine; that he had charge of it, offered it for sale, and sold it. The statement in the affidavit showed no more than these facts, and its admission was certainly harmless in that view. This disposes of all the material questions in the case. The judgment of the circuit court is affirmed.

SCHOOL-DISTRICTS V. EDWARDS et al.1 (Supreme Court of Wisconsin. Jan. Term, 1879.) SCHOOL FUNDS-SURPLUS DRAINAGE MONEYJOINT ACTION TO RECOVER.

1. Laws Wis. 1869, c. 151, § 17, providing that, when the drainage money in a town treasury is not needed for its original purpose, it may be applied for the support of the schools, "under the direction of the board of supervisors," does not mean that the money must be expended directly by the supervisors, but that it shall be paid into the treasuries of the several districts, and expended by the school officers as other funds belonging to such districts are paid in and expended.

2. Where a supervisor borrows drainage money from a town treasury without lawful authority, and gives his due-bill for the amount, and the board afterwards, in pursuance of Laws Wis. 1869, c. 151, § 17, seek to appropriate it to the school by transferring the due bill to one of them for the benefit of all, neither the borrowing supervisor nor the board can be heard to deny

This case, filed January term, 1879, is now published by request, with others, in order that the Northwestern Reporter may cover all cases in volume 46, Wisconsin Reports.

that the money was in the treasury, so as to be subject to appropriation for that purpose.

3. The fact that the several school districts are entitled to the money in unascertained proportions will not prevent a joint recovery; but the court may order the money paid in, and ascertain the proportion by reference or otherwise. RYAN, C. J., dissenting.

Appeal from circuit court, Wood county.

Action by three school-districts against John and William H. H. Edwards to recover money belonging jointly to the plaintiffs and another district, which was made defendant because it refused to be joined as plaintiff. The complaint alleged that the board of supervisors of the town of Centralia loaned the defendants, John and William H. H. Edwards, from the town treasury a certain amount of the drainage money of the town; that one of the defendants was at that time a member of the board, and gave a due-bill for the amount; that afterwards the supervisors, having determined that the said funds were not needed for the purposes of drainage, concluded to apply the same to the support of the schools, in accordance with the provisions of Laws Wis. 1869, c. 151, § 17, and for this purpose assigned and transferred to the aforesaid districts the due-bill of the defendants, with all the right, title, and interest of the town; that they directed the funds, when collected, to be divided among the districts in proportion to the number of scholars therein, and ordered the town treasurer to deliver the due-bill to one of the districts for the use and benefit of all of them. Defendants demurred to the complaint on the ground that it failed to state a cause of action. The demurrer was overruled, and defendant appeals. Affirmed.

Powers & Priggs, for appellants. Geo. R. Gardner, for respondents.

LYON, J. The action is to recover money in the hands of the appellants, which, it is alleged, belongs jointly to the schooldistricts, parties to this action. The demurrer is general, hence we have no question on this appeal of defect of parties or misjoinder of causes of action. If the facts stated in the complaint show that the money belongs to those districts, the demurrer was properly overruled. The objections to the sufficiency of the complaint will be briefly noticed in their order.

I. The act of 1865 (chapter 537, § 17) provides that in a certain contingency drainage money in the town treasury "may be applied to the support of common schools, under the direction of the board of supervisors." The learned counsel for the defendants argue that money so applied does not belong to the schooldistrict for the benefit of which it is applied, and does not go into the district treasury, but must be applied—that is, expended-directly by the supervisors, without the intervention of the school-district or its officers. We think this is an incorrect construction of the statute. The general law of the state prescribes the processes, through the agency school-districts and their officers, for or ganizing, maintaining, and conducting

of

the common schools. Within legal limit. ations, the control of the district board over the district school must necessarily be exclusive. There is not room for two jurisdictions acting independently of each other. If the construction of the statute contended for be adopted, the board of supervisors which applies drainage money to the support of a district school may discharge a teacher employed by the district board and employ another, and may control the management and economy of the school while expending the money. Of course, the legislature never intended that result, but manifestly did intend that the money should be paid into the district treasury, and expended under the direction of the district board, as other funds belonging to the district are paid in and expended. The true meaning of the statute doubtless is that the money shall be applied to the support of common schools by and through the usual authorized agencies, if, on the happening of the contingency therein mentioned, the board of supervisors shall so direct. In this case the complaint shows a regular determination that the contingency of the statute has happened; and it shows further that the proper board of supervisors has applied the money to the support of common schools, by appropriating it to the school-districts of the town. We cannot doubt that the money belongs to the school-districts to which it was thus appropriated, and that those districts may recover the same of any person who may have it in his hands.

II. We think there is no force in the objection that the appropriation was not lawfully made, because, when made, the money was not in fact in the town treasury. The money was taken from the treasury by the appellants (one of them being then a supervisor) without lawful authority, and was never returned. It was a most flagrant breach or trust on the part of the supervisors to loan or borrow the public funds, and neither they not any other person in pari delicto with them can be heard to say that the money was not in the treasury when appropriated, if it becomes necessary for any person justly entitled to it to allege that it was there. If not then in the treasury, it ought to have been, and probably would have been there but for a gross violation of official duty, to which the appellants were parties. The board of supervisors making the appropriation might lawfully assume that the money would be at once replaced by the appellants where it belonged, and treat it as money actually in the treasury. Hohl v. Town of Westford, 33 Wis. 323. Were the objection available under any state of facts, it is not available to these appellants under the facts stated in the complaint.

III. The fact that the several school-districts are entitled to the money in unascertained, and, probably, in unequal, proportions, is no impediment to this action. That is a matter between the districts, with which the appellants have no concern. It is sufficient for the purpose of maintaining the action that they are jointly entitled to the money claimed.