Burmeister vs. Olson. as matter of law, that it was the duty of the plaintiff to close the gate. There was no evidence tending to show that it was part of a mere section man's duty to close or repair gates or fences, without direction so to do from the foreman of the crew. In fact, all the evidence there was in the case upon the subject was to the contrary. The defendant may, perhaps, be able to show that the plaintiff's duty, in fact, went to this extent, but the evidence does not now show it. No other considerations are urged in support of the nonsuit. By the Court.-Judgment reversed, and action remanded for a new trial. BURMEISTER, Respondent, vs. OLSON, Appellant. Appeal: Findings sustained: Mistake. Findings of the trial court that there was a mistake in the condition of a mortgage, and also in the description of the premises covered by it, are held not to be against the preponderance of the evidence in this case, even applying the rule that such mistake must be shown beyond reasonable controversy. APPEAL from a judgment of the circuit court for Dane county: R. G. SIEBECKER, Circuit Judge. Affirmed. Action to reform a mortgage of real estate. One Weltzin, plaintiff's father-in-law, being indebted to the defendant in about the sum of $1,700, secured by mortgages on certain real estate, and the defendant demanding payment, the plaintiff, Weltzin, and the defendant met and negotiated, as a result of which it was agreed that Weltzin was to give a chattel mortgage on some $300 worth of personal property, and that the plaintiff was to give a mortgage on a certain house and lot of his in the village of Mt. Vernon. Plaintiff Burmeister vs. Olson. claims that the understanding and agreement was that his mortgage was merely to be conditioned upon Weltzin's paying over the proceeds of the chattel-mortgaged property, which he was authorized to sell and dispose of, and that it was intended to cover only the northeast half of lot 4, in block 2, of the village of Mt. Vernon; that as a result of the negotiation he made a memorandum upon a slip of paper, reading, "Olson will release mortgage when Weltzin pays over receipts of sale. Lot 4, Block 2;" and that the instructions to the attorney were to draw the mortgage accordingly. The memorandum was offered in evidence in confirmation. The mortgage in fact drawn covered the whole of lot 4, in block 2, and was conditioned upon the payment of the whole indebtedness of $1,705, which plaintiff claims he executed without examining the same, and upon the mutual misunderstanding that it was drawn in accordance with the arrangement reached. Defendant denies any mistake. Two other witnesses were called in support of the plaintiff's contention. The court found that the mortgage was so drawn by mistake and was intended as claimed by the plaintiff, and entered judgment reforming the same, from which defendant appeals. For the appellant there was a brief by Ben E. Wait and Gerhard M. Dahl, and oral argument by Mr. Wait. For the respondent there was a brief by Bird, Rogers & Bird, and oral argument by Geo. W. Bird. DODGE, J. After a very careful examination of the evidence in this case, we are unable to say that there is a preponderance thereof against the finding of the circuit court that, by mistake and contrary to agreement of the parties, the mortgage from plaintiff to defendant was conditioned upon the payment of the sum of $1,705, instead of being conditioned that said mortgage should cease and be null and void, provided the said plaintiff paid or caused to be Burmeister vs. Olson. paid to the said defendant the proceeds of the sale of the personal property mentioned, even applying to the consideration of such evidence the rule that the mistake must be shown beyond reasonable controversy, as announced in Harter v. Christoph, 32 Wis. 248, and numerous other cases. The evidence also overwhelmingly supports the finding of a mistake in the description of the mortgaged premises. A discussion of the evidence can ordinarily serve no good purpose when the conclusion of the circuit court therefrom is concurred in. The judgment reforming the mortgage results unavoidably from these findings, and should not be disturbed. By the Court.-Judgment affirmed. INDEX. ABATEMENT of action. See ACTION, 3-7. ACCEPTANCE of street. See PLAT OF LANDS, 2. ACCIDENT INSURANCE COMPANIES: License. See INSURANCE, 1-6. ACTION. Cause of Action. See ACTION, 1, 2, 9. AGENCY, 3. ASSIGNMENT, 2, 3. TAX TITLES, 3, 4. Conditions precedent. See CONSTITUTIONAL LAW. HIGHWAYS, 8. IN- TIONS, 4. RAILROADS, 22. SALE OF CHATTELS, 2. Bar of prior action. See PLEADING, 2–4. Limitations. See LIMITATION OF ACTIONS. Delay as a bar. See EQUITY, 1, 8. HIGHWAYS, 2. By whom to be brought - Who may maintain. See ACTION, 7. APPEAL, 3. Leave of court. See JUDGMENT, 8. Abatement and survival. 1. The liability created by sec. 4255, Stats. 1898, in case of the death of 2. In an action for damages under said sections, if the complaint fails 5. If a person die from the effects of an actionable personal injury, not |