a full payment; when the note is entirely void for want of consideration or other cause; when the consideration has totally failed; or when the maker, having the right to rescind the contract, does so, and returns, or offers to return, the consideration received, and the return of the note is demanded and refused. In this connection, see Savery v. Hays, 20 Iowa, 26; Sigler v. Hidy, 56 Iowa, 504, 9 N. W. Rep. 374.

2. Where the complaint contains no allegation that the rollers were worn out of proper form by use, evidence by an expert who testified, under objection, that the unevenness of the rollers would have a tendency to cause such an accident as that by which plaintiff was injured, does not authorize the court to submit a question to the jury as to whether or not the rollers had become defective from use, especially in the absence of any evidence that defendant had knowledge thereof.

3. A finding by the jury that there was no proof on which they could base an answer to a special interrogatory whether or not defendant had knowledge of the defective condition of the edger, is, in effect, a finding in the negative; and

it is error for the court to decline to receive the verdict, and to send back the jury, after causing the testimony of one witness to be read to them, but omitting other material testimony on the same subject.

is contrary to public policy, and therefore void. It is identical with that in Merrill v. Packer, so far as the question of public policy is concerned. In that case we hold the contract to be void as against public policy, and we see no reason why the same ruling should not be applied to this. The contract is not based upon any actual values, but upon confessedly extravagant and unreal values. It is not an honest, good-faith transaction, but a cunningly devised scheme to cheat and defraud. It could not be carried out without in the end deceiving some persons into paying many times the value of the oats. Both parties to the contract were parties to this intent to defraud, and hence the law leaves them where it finds them, and will afford no relief to either upon such a transaction. Langan v. Sankey, 55 Iowa, 52, 7 N. W. Rep. 393; Steever v. Railway Co., 62 Iowa, 371, 17 N. W. Rep. 595. While the notes are void, except as to innocent purchasers for value before due, yet equity will not decree a cancellation at the suit of a party to the fraud. The defendant's motion for a verdict in his favor should have been sustained.

4. As the foregoing conclusion denies to the plaintiff the right to recover possession of the notes in controversy, it is unnecessary that we consider the other errors assigned and discussed, or that we determine anything as to the rights of the parties in an action to recover on the notes. The judgment of the district court is reversed.

(77 Wis. 14)

SHERMAN V. MENOMONEE RIVER LUMBER CO. (Supreme Court of Wisconsin. May 20, 1890.) MASTER AND SERVANT-RISKS OF EMPLOYMENT

DEFECTIVE MACHINERY-SPECIAL VERDICT.

1. In an action for personal injuries sustained by a workman employed in running lumber through an alleged defective and unsafe edger in defendant's saw-mill, a special finding by the jury, in the alternative, that the want of repair in the edger consisted of cracked or broken rollers, "or rollers that were worn out of proper form by use, " is too indefinite and uncertain to be allowed to aid in supporting a judgment in plaintiff's favor.

4. In the absence of evidence as to whether or not defendant knew of plaintiff's inexperience with the machinery at which he was set to work, and of his ignorance of the dangers to which he was exposed, the jury, in deciding this question, cannot be permitted to rely on their own personal knowledge of the fact that an experienced employer is able to determine whether or not a stranger seek

chinery at which he is set to work.

5. Where a jury returns a special verdict alone, unaccompanied by a general verdict, defendant's failure to object that no question was submitted to them as to whether or not defendant was negligent in providing unsafe machinery, and as to whether the accident was caused by such negligence, is not a waiver of his right to afterwards attack the special verdict because of its failure to pass on all material and controverted questions.

Appeal from circuit court, Marinette county; GEORGE H. MEYERS, Judge.

This action is brought to recover damages by reason of personal injury sustained by the plaintiff, October 9, 1883, while in the employ of the defendant, in its saw-mill in Marinette, and while engaged in handing boards to another servant of the defendant, who was then engaged in feeding the edger in said sawmill, by being suddenly struck by a board on his right thigh with such force as to crush and break the same, and make it necessary to amputate his right leg, which was done on that day. The complaint alleges two causes of action, and the first is to the effect that the defendant and its managing agents negligently provided and used an unsafe, defective, and insecure edger, and which defect consisted, among other things, in not being properly set up and held together,-that is to say, that the roller above the board, and which propelled the board against the saw, was so carelessly and negligently attached that it often became raised or thrown up by a small piece of bark or splinter coming from the board, so as to loosen its hold thereon, and allow it to be thrown back, when it struck the saw; that the lower roller was cracked and broken so that a heavy board would bend it down, and thus allow the board to be thrown back violently when struck by the saw. The second cause of action, as therein alleged, is to the effect that the defendant, well knowing of the plaintiff's youth and inex. perience in all matters relating to saw. mills, and the dangers therewith connected, negligently and carelessly set him at said work, which at all times, and under all circumstances, was extra hazardous

and dangerous, without notifying or cau- | tioning him of such danger, or showing | him how to avoid the same. The answer The answer admits the corporate existence of the defendant, such employment, and the receiving of the injury, but otherwise denies each and every allegation in the complaint.

At the close of the trial, the jury, under the charge of the court, returned a special verdict to the effect (1) that at the time and place complained of the plaintiff was at work for the defendant in the saw-mill, with another person in the employ of the defendant, running lumber through an edger machine propelled by steam-power, -such other person being in charge of, and feeding lumber to, the machine, and the plaintiff passing lumber to the feeder of the machine; (2) that at said time a board or plank that the feeder was passing through the edger was thrown back by the edger against the plaintiff, thereby causing the injury complained of; (3) that at the same time said edger was out of repair, so that it did not do its work properly and safely. The fourth question and answer were as follows: "If you answer 'No' to the last question, this question need not be answered, but, if you answer 'Yes' to the last question, then answer this question: Was the want of repair of the edger a cracked or broken roller or rollers, or rollers that were worn out of proper form by use?' Answer. Yes." The balance of the findings were to the effect (5) that the throwing of the board or plank back against the plaintiff by the edger was occasioned by the edger being out of repair as aforesaid; (6) that the board or plank complained of was not thrown back against the plaintiff by the edger through the carelessness or negligence of the man who fed the edger alone; (7) that the plaintiff had worked for the defendant six and one-half days when he was injured; (8) that the defendant hired the plaintiff to do the work of a common laborer; (9) that the foreman of the defendant ordered the plaintiff to pass lumber to the man who fed the edger; (9%) that when the plaintiff was ordered to work at the edger the agents of the defendant in charge of the mill and the edger knew that the plaintiff was ignorant of such machinery, and the dangers to which those who work upon it were exposed; (10) that at the time complained of the plaintiff had not any information or knowledge of sa w-mills or edgers, or their operation, or of the dangers to which he was exposed while working at the edger, or how to avoid the injuries to which he was exposed; (11) that the plaintiff was about 20 years of age when he was injured; (12) that the plaintiff had worked at the edger, or in sight of it, one day be fore he was injured; (13) that the agents of the defendant in charge of the mill knew that the edger was liable on occasions to throw back with great force planks and boards that were passing through it; (14) that neither the defendant nor its agents in charge of the mill and edger in any manner informed the plaintiff that the edger was liable to or could throw back boards or planks that were passing through it,

how he could avoid injuries on such occasions, or how he could know when there was danger that planks or boards would be thrown back by the edger; (15) that if the plaintiff had known, when a board or plank stopped in the edger, and the feeder was trying to loosen and start the plank, that there was danger that the board or plank would be thrown backward with force by the edger, the plaintiff could have got out of the way, and escaped injury; (16) that the plaintiff was not guilty of any ordinary negligence that contributed to the happening of the injury to him; (17) that, if the plaintiff has judgment, he should receive as damages $5,000. Subsequently, the court having ordered judg ment upon said special verdict in favor of the plaintiff and against the defendant, the same was entered accordingly; and from the judgment so entered the defendant brings this appeal.

Fairchild & Fairchild, (F. C. Winkler, of counsel,) for appellant. Huntington & Cady, for respondent.

CASSODAY, J., (after stating the facts as above.) The complaint alleges two causes of action. The first consists in negligently providing and using an unsafe, defective, and insecure edger, and stating wherein the same was unsafe, defective, and insecure. In answer to the third question the jury found, in effect, that the edger was at the time out of repair, so that it did not do its work properly and safely. By the fourth question submitted the jury were required to find whether such" want of repair" consisted of "a cracked or broken feed roller or rollers, or rollers that were worn out of proper form by use." To the alternative thus presented the jury simply answered, "Yes." The answer to the fifth question is to the effect that such want of repair caused the board or plank to be thrown back against the plaintiff. From the answer to the fourth question, it is impossible to tell whether the jury found such roller or rollers cracked or broken, or merely worn out of proper form by use. Carroll v. Bohan, 43 Wis. 218; Jewell v. Railway Co., 54 Wis. 617, 12 N. W. Rep. 83; Murray v. Abbot, 61 Wis. 198, 20 Ñ. W. Rep. 910. It follows that the question submitted was defective, and the answer indefinite and uncertain. Besides, it is strenuously claimed that if such want of repair consisted only in such rollers' getting out of proper form by use or wear, then that this finding is outside of the issues in the case, and unsupported by the evidence. Certainly, no such defect is alleged in the complaint. This is conceded by the learned trial judge in his charge. Counsel for the defendant boldly assert in their printed brief "that there is not a word of proof in the case that either of the rollers were worn out of proper form by use' or otherwise." The counsel for the plaintiff fails to point out any evidence tending to prove such fact, and we find none in the record.

In charging the jury on the question, the learned trial judge says: "One witness said something about some of their feed rollers getting worn out of the true by use." The witness thus referred to ap

pears to have been testifying generally as an expert, under objection, as to boards stopping in such edgers, and the cause of the same, and, among other things, to the effect that where the roller was uneven (higher at one end, or sagging in the middle,-sag in the roller) it would have a tendency to curve the board, run it on an angle, rather than run it straight, and thus draw it up, or cause it to go up, to the higher side. But this evidence, on a matter not in issue, did not authorize the submission of such question nor support such finding, in the absence of any evidence tending to prove that either of such rollers was thus out of proper form by use or wear. Besides, there is no finding, and no evidence tending to prove, that the dfendant or any of its agents knew that either of said rollers was thus out of proper form by use or wear. Since the jury were thus at liberty to answer the fourth question submitted as they did, without any evidence that either of said rollers was out of proper form by use or wear, it is manifest that such answer cannot be allowed to aid in supporting the judgment.

After the cause was submitted to the jury, they returned and informed the court that they did not understand the fifteenth question as it had previously been submitted, whereupon the court altered the same so as to read as when finally answered. Thereupon the jury again retired, and after awhile again returned with all the questions answered to the effect mentioned in the foregoing statement, except the thirteenth, as to which they found, in effect, "that there was no proof upon which they could base an answer to that question." Thereupon the counsel for the defendant insisted that such answer was equivalent to, and in effect, an answer in the negative, and should be received. The court then said to the jury: "You are requested to retire and try to make an answer, yes or no, to that question. If you find that there is testimony in the case that satisfies you that the agents of the defendant did know-in charge of the mill -did know that the machine sometimes, on occasions, threw back planks or boards, that you should say 'Yes' to this question. I think there is something in Mr. Corry's testimony with respect to the dangers. I don't know. Perhaps I am mistaken, but that is my remembrance." Whereupon the court requested the reporter to read to the jury the testimony of Michael Corry. "Mr. Corry's testimony was then and there read in full by the reporter to the jury, with the exception of one page of his testimony, which the court informed the reporter he need not read. After the reading of the testimony, aforesaid, of Michael Corry, with the exception of the page aforesaid, the court addressed the jury as follows: 'Now, gentlemen of Now, gentlemen of the jury, I have had this read over to you so that you might have your memory refreshed in respect to what this one witness said, and if you find, from fair preponderance of the evidence, that the agents of the defendant in charge of the mill in question knew that the edger was liable on occasions to throw back with great force

planks and boards that were passing through it, you will say "Yes" to that question; but if you are not satisfied, by a fair preponderance of the evidence, that the agents knew that that liability existed, you ought to say "No," because the burden of proof upon this, as upon all other questions, is upon the plaintiff, and, if the plaintiff has not satisfied you on that subject, you ought to say "No," and if he has you ought to say "Yes." That is all I have to say about it. You can take these questions along with you.' The jury then retired, and shortly after returned into court with their verdict, and with the said thirteenth question answered 'Yes.'" To each of such several instructions, directions, and proceedings on the part of the court the defendant made timeÎy objections and exceptions. Undoubtedly ly a trial court may, under certain circumstances, decline to receive a special verdict, and direct the jury to retire for further consultation. Wightman v. Railway Co., 78 Wis. 169, 40 N. W. Rep. 689. But here the finding of an absence of proof was equivalent to answering the question in the negative; and hence the verdict, when first returned, should have been received and entered. McLimans v. City of Lancaster, 63 Wis. 607, 608, 23 N. W. Rep. 689. But, even if this were not so, yet the reading to the jury of portions of the testimony of one witness, with the comments of the court stated, and omitting other material portions, and other testimony on the same subject, under the circumstances mentioned, was, as we think, misleading, and tended to the coercion of an affirmative answer from the jury, and hence was

error.

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It is strenuously claimed on the part of the defendant that there is no evidence to support the finding of the jury to question 9%. Upon that question the court, among other things, charged the jury: "Now you must determine this from the evidence in the case,-from the preponderance of it; and very likely you will have to determine it from inferences drawn from the testimony in the case. * I don't remember any testimony at all on that subject, directly in respect to that,-that he told them anything about his acquaintance with machines or machinery; and, if you don't remember any testimony on that subject, or if there isn't any on that subject, you will have to determine it upon inferences that you may draw from what experienced men about machinery of that kind would be likely to know when they saw a man-a stranger-come around their machines. If they were able to tell right along whether he is a person that knows nothing about machines or machinery of the kind they set him to work about, about, why, you will, perhaps, know about it, and, if not, you will have to do the best you can with that question." These portions of the charge virtually concede that there was no evidence bearing directly upon the subject. They nevertheless authorize the jury to determine that question from inferences drawn from the testimony in the case, if there was any, and, if there was not any testimony on that subject, then that they might deter

(77 Wis. 43)

MOLEY V. BARAGER et al. (Supreme Court of Wisconsin. May 20, 1890.) LIBEL-PUBLICATION ACTIONABLE PER SE.

The publication of a cut or drawing, picturwritten article in which he is ridiculed as "an ing a person as a jackass, and following it with a egotistical, over-estimated, self-conceited jackass, who claims the name of James Moley," intending thereby to subject him to social disgrace, hatred, or contempt, is libelous per se.

roneous.

The finding of the jury upon the fifteenth question submitted is based entirely upon an hypothetical state of facts which the defendant insists did not exist, and hence the impropriety of submitting it, or allow ing it to remain as a basis of the judgment, is quite apparent. This court has frequently held that it is not the province of a special verdict to submit questions not in issue, or not controverted because admitted, as in the case at bar, but the same should be limited to material and controverted questions of fact. Heddles v. Railway Co., 74 Wis. 257,258, 42 N. W. Rep. 237, and cases there cited. But, notwithstanding the submission of some questions not in issue, and others not controverted because admitted, yet the court failed to submit to the jury the most material and principally controverted question of fact in issue as to each of the two causes of action alleged, to-wit, the negligence of the defendant either in providing and using unsafe and defective machinery, or carelessly and negligently operating the same, and whether the injury in question was caused by such negligence or carelessness. A special verdict not determining all the material and controverted facts in issue is, of course, defective. Hutchinson v. Railway Co., 41 Wis. 552; Kelley v. Railway Co., 53 Wis. 74, 9 N. W. Rep. 816; Bell v. Shafer, 58 Wis. 223, 16 N. W. Rep. 628; Kerkhof v. Paper Co., 68 Wis. 674, 32 N. W. Rep. 766; Pratt v. Peck, 65 Wis. 471, 27 N. W. Rep. 180. Certainly a special verdict should be something more than a mere abstract of the evidence. It is claimed that the counsel for the defendant made no objections to the questions submitted, and made no request to submit such questions of negligence, and therefore waived the same. This would undoubtedly be so where such special verdict is accompanied by a general verdict. Kelley v. Railway Co., supra. But where a judgment is based upon a special verdict alone, which fails to determine all the material and controverted facts in issue, there can be no such waiver. It is unnecessary here to determine whether such negligence of the defendant may be inferred from the other findings, since there must be a new trial by reason of the other errors mentioned. The judgment of the circuit court is reversed, and the cause is remanded for a new trial.

Appeal from Bayfield county court.

This is an appeal from an order overruling a demurrer to the complaint in an action for libel. The complaint contains the usual colloquium, and alleges the publication, September 13, 1888, of the article in question, which is set out in full, with appropriate innuendoes, and is headed, "His Honor, James Moley," followed by a cut,

ass, and that is followed by the balance of the article, to-wit: "Monday was labor day, and it was celebrated in Washburn in a. very fitting manner by a torch-light procession, consisting of about 150 torch carriers, who marched from the K. of L. hall to the town-hall, where a well-arranged programme of entertainment was nearly, if not quite, carried out. The above item appeared in last week's Itemizer, and had the same effect on an egotistical and over-estimated, self-conceited jackass, who claims the name of James Moley, as a red rag would on an enraged bull. The item referred to calls for no apology on our part, as there is not a word in it detrimental to the above-mentioned quadruped, or the poor laboring men, nor can it be so construed; therefore we shall make none. We have neither time nor space this week to reply to the article of the above gentleman which appeared in the Ashland News, Sunday, but in the future look out for breakers. To be continued."

Cole & O'Keefe, for appellant. Miles & Shea, for respondent.

CASSODAY, J., (after stating the facts as above.) It has been repeatedly held by this court, in effect, that a written publication, though not charging a punishable offense, is libelous per se, if it tends to subject the party to whom it refers to social disgrace, public distrust, hatred, ridicule, or contempt. Bradley v. Cramer, 59 Wis. 309, 18 N. W. Rep. 268, and cases there cited; Gauvreau v. Publishing Co., 62 Wis. 410, 22 N. W. Rep. 726. N. W. Rep. 726. Upon this demurrer, the allegations of the complaint must be taken as true, and hence the things alleged must be regarded as false, and, as such, knowingly published by the defendant. Gauvreau v. Publishing Co., 62 Wis. 407, 22 N. W. Rep. 726. It is for the court to determine whether a publication is capable of the meaning ascribed to it in the complaint. Id.; Bradley v. Cramer, 59 Wis. 312, 18 N. W. Rep. 268. In analogy to numerous cases in this and other courts, we must hold that the publication in question is capable of the meaning ascribed to it in the complaint, and is therefore libelous per se. Solverson v. Peterson, 64 Wis. 201, 25 N. W. Rep. 14, and note; Massuere v Dickens, 70 Wis. 87, 35 N. W. Rep. 349. The order of the circuit court is affirmed.

(77 Wis. 214) HOFFMAN et al. v. CHIPPEWA COUNTY. (Supreme Court of Wisconsin. June 21, 1890.) PUBLIC PRINTING-STATUTORY COMPENSATION.

Under Rev. St. Wis. § 1174, providing that, where the number of descriptions in the delinquent tax-list is less than 3,000, the printer shall receive 30 cents for each lot or tract, the county clerk has no authority to let a contract for the work at a less price.

Appeal from circuit court, Chippewa county; R. D. MARSHALL, Judge.

T. J. Connor, Dist. Atty., for appellant. Dickinson & Buchanan, for respondents. COLE, C. J. The learned circuit court circuit court sustained the demurrer to the answer of the defendant on the ground that as the statute provides, when the number of descriptions in the list was less than 3,000, the printer publishing it should receive 30 cents for each lot or tract in the list, that this was controlling. The language of the statute is certainly clear and explicit on the subject. It is even mandatory in form, and says that "the printer who shall publish the list and notice of the time when the redemption of lands sold for the non-payment of taxes will expire shall receive thirty cents for each lot or tract of land in such list, for all the insertions." Rev. St. § 1174. Thus the statutes expressly prescribe the fees which the printer shall receive, and the county clerk had no authority to make a contract which changed them. The statute, indeed, does not give the clerk any power to contract for the publication of the list where the number of descriptions in the list does not exceed 3,000. He is required to cause the list to be published as the statute prescribes, (section 1170,)—that is, he can select or designate the paper, but the compensation for the service has been fixed by the legislature. But, where the number of descriptions in the advertised list exceeds 3,000, there the county clerk is required to let by contract the publication to the lowest bidder, in the same manner, and with like conditions and limitations. as the county treasurer is authorized to contract for the publication of list of lands for delinquent taxes for sale. Section 1173.

ing cases have likewise a bearing on the question we are considering: Beal v. Supervisors, 13 Wis. 501; State v. Purdy, 36 Wis. 213; State v. Mayor, 15 Lea, 697; Edmondson v. Jersey City, 48 N. J. Law, 121, 3 Atl. Rep. 120. We have already stated that the clerk had no power to enter into any contract for the publication in this case. He was only authorized to select the paper in which the publication should be

made.

The only doubt I have had in the case grows out of this fact: The answer shows that the plaintiffs filed with the county clerk an offer, in writing, to print the delinquent list in their paper for three cents for each description, and tendered a bond for the faithful performance of the work. On the good faith of this offer or proposition, the clerk doubtless entered into the contract which he made with them. While it is clear that he had no authority in law to make such a contract, still I have had some doubt whether they were not bound to stand by the proposition which they made. It is true this was for much less than the rate of compensation fixed by the statute. But could they not waive a provision for their benefit? And, having voluntarily done so, is not the offer or proposition binding upon them? But to this view it is answered that the doctrine of waiver or estoppel has no application to the case, and cannot be invoked to aid the defendant county; that the law does not sanction the principle that an officer shall make a contract to reduce the compensation fixed by statute for services. In some of the cases above cited the facts showing waiver were quite as strong as in this case, but the courts gave no effect to them. In People v. Board of Police it is said: "There is no principle upon which an individual appointed or elected to an official position can be compelled to take less than the salary fixed by law. The acceptance and discharge of the duties of the office after appointment is not a waiver of the statutory provision fixing the salary thereof, and does not establish a binding contract to perform the duties ✶✶✶ for the sum named. The law does not recognize the principle that a board of officers can reduce the amount fixed by law for a salaried officer, and procure officials to act at a less sum than the statute provides, or that such officials can make a binding contract to that effect. The doctrine of waiver has no application to any such case, and cannot be invoked to aid the respondent." The same principle is recognized and enforced in Kehn v. State and Riley v. Mayor, supra, and the reason for the rule applies in full force here. For reasons satisfactory to the legislature, it saw fit to prescribe the amount of compensation which the printer should receive for the service. Whether it was thought that this compen sation would secure sation would secure better service, or greater faithfulness in the execution of the work, we cannot tell. It is sufficient to say that the law is so enacted, and the courts must conform to it. It follows from these views that the order of the circuit court must be affirmed, and the cause be remanded for further proceedings ac

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