to amend it in the respect complained of, and it had been so amended and returned to the court, the irregularity would have been cured. It was no doubt the intention of the legislature, in conferring such ample powers upon the court, to avoid the delay and expense of such a reference to correct technical and formal matters that could be so speedily remedied by the court. We are of the opinion, therefore, that the action of the court below was proper, and cured any irregularity that might have existed in the original report. 3. The third and last point made by appellant is that the court erred in confirming the report of the referee, as the same was returned by the referee without the evidence taken by him on the hearing. Counsel for appellant contends that, by the provisions of Section 3, of the chapter referred to, referees must report their findings, "together with all the evidence taken by them, and all exceptions taken on the hearing." This provision is no doubt mandatory, and must be complied with, and, if the fact that a judgment was rendered when the evidence had not been reported affirmatively appeared in the record, and a proper motion had been made in the court below, an important question would be presented to the court. Supervisors v. Ehlers, 45 Wis. 281. While appellant's exception asserted in the court below "that no evidence whatever is certified, reported or submitted to this court by the referee, and there is now no evidence properly before this court upon which this court can review," etc., there is nothing in the record to show that the evidence was not reported, and was not before this court at the time the motion for judgment was heard and decided. In fact, it does affirmatively appear by the certificate of the judge that all the evidence and depositions were returned to the court at some time, and in respondent's additional abstract it is stated "all the evidence taken before the referee and all depositions were before the court on the motion to confirm." This statement in the additional abstract is not controverted by appellant. Hence this point is settled against appellant by the record in the case, and it becomes unnecessary to further discuss it in this opinion. It may have been true that when the exceptions were prepared and filed the evidence had not been reported, but if, as shown by the record, it was reported, and was before the court on the hearing, that, we think, is a substantial compliance with the statute. There being no error in the record, the judgment of the court below should be affirmed, and it is so ordered. BENNETT, J., concurring. KELLAM, P. J., did not sit in or take any part in the decision of this case. HUMPFNER V. D. M. OSBORNE & Co. et al. 1. A complaint in an action, in which it is alleged that at a certain time the plaintiff was the owner and in the possession of certain personal property; that it came into the possession of the defendants; and that, while so in their possession, they unlawfully and wrongfully converted it to their own use, to the damage of plaintiff,-is sufficient under the Code of this state. The further allegation that defendants "took possession of said personal property" should be treated as surplusage. 2. Where the complaint alleged ownership, which was denied by a general denial in the answer, an allegation in the answer that the property described in the complaint was included in a chattel mortgage given by plaintiff to the defendant, and was at the time it was so mortgaged the property of the plaintiff, is a clear and distinct admission that the property described in the complaint was the property of plaintiff, as plaintiff, being then the owner, will be presumed to have remained the owner to the time of trial, in the absence of any allegation that the title had been in the meantime transferred. 3. 4. Facts admitted by the pleadings need not be submitted to or found by a jury in a special verdict. The facts admitted by the pleadings, together with those found by the jury, present the whole case in proper form for the consideration of the court; but a special verdict must find all the material facts not admitted, put in issue by the pleadings, when no general verdict is found. A provision in a chattel mortgage that, if the "mortgagee shall at any time deem itself insecure, then thereupon and thereafter it shall be lawful for such mortgagee* * * to take such property *** and hold and sell or dispose of the same," does not confer upon the mortgagee the absolute and arbitrary power to declare itself insecure without proper cause, and authorize it to proceed to take possession and sell the mortgaged property. Until the debt matures, or some act is done or threatened by the mortgagor, specified in the mortgage, which would authorize the mortgagee to take possession of and sell, the mortgagor's possession cannot be legally disturbed. Held, further, that the questions submitted to the jury in this case were pertinent and proper, and that the fact of whether or not defendant D. M. Osborne & Co. did deem itself insecure was immaterial, and was properly omitted from the questions submitted. 5. Defendants pleaded and relied upon the defense that during the pending of this action D. M. Osborne & Co. brought an action in the justice court against Humpfner, the plaintiff herein, to recover the sum due on a promissory note given by him to said D. M. Osborne & Co., in which suit two defenses were pleaded by Humpfner, one of which was that the note was paid by the foreclosure and sale under the mortgage. Evidence was offered and received tending to establish this defense, but it was subsequently stricken out. Held, error. If the defense, as alleged, could be proven, then Humpfner was estopped from asserting that the foreclosure sale was invalid. Held further, that, there being two defenses pleaded in the justice court action, it was competent to show by extrinsic evidence upon which defense the justice rendered his judgment. (Syllabus by the Court. Opinion filed Oct. 20, 1891.) Appeal from the circuit court, Grant county. Hon J. O. ANDREWS, Judge. Action for damages for the unlawful conversion of personal property. Defendants answered denying generally and setting up facts claimed by them to constitute a justification. ment for plaintiff. Defendants appeal. Reversed. The facts are fully stated in the opinion. Taubman & Potter for appellants. Judg If a party, having the right to repudiate or affirm a transaction, affirms it, he cannot afterwards resort to his right of repudiation. Hermon Estoppel, § 466; Comham v. Thompson, 111 Mass. 270; Kinney v. Kierman, 49 N. Y. 164; Moller v. Tuska, 87 N. Y. 166; Riley v. Albany Sav. Bank, 103 N. Y. 669; Thompson v. Howard, 31 Mich. 309; Goss v. Mather, 46 N. Y. 689; Beurman v. Van Buren, 44 Mich. 496; Farrull v. Myers, 59 Mich. 179; Neill v, Burton, 49 Mich. 53; Thomson v. Howard, 31 Mich. 309; 10 Am. State Rep. 487. It was the province of the jury to find all the material facts. dered. Fed. 195. A special verdict must state all the facts essential to a recovery, and nothing can be supplied by intendment. Thompson on Trials, § 2651; Rice v. Evansville, 108 Ind. 7; Seward v. Jackson, 8 Con. 406; Dixon v. Duke, 85 Ind.; Hill v. Covell, 1 N. Y. 522; Langley v. Warner, 3 N. Y. 327; Kuhlman v. Medlinke, 29 Tex. 385; Polling v. Mayn, 3 Pond. 563; Mitchell v. Colglazier, 106 Ind. 464; King v. Davis, 101 Ind. 75. When property is taken by the holder of a chattel mortgage, for the purpose of foreclosure, and an effort is made in good faith to foreclose, and the sale is invalid by reason of an omission to comply with the law, the lien of the mortgage is not destroyed and the mortgagee is not liable for conversion. Cushing v. Seymour, 15 N. W. 249. The case of Everett v. Buchanan, 2 Dak. 249, is not in conflict with this proposition. Bion A. Dodge and John W. Bell for respondent. The only grounds upon which a person can successfully defend an action for the conversion of property are, by establishing his own right of possession thereto, or showing that the plaintiff is not entitled to the possession thereof, or that he has not converted the property, or that there has been a previous recovery against him for the same property, or that the plaintiff has ratified the conversion. 6 Waits A. & Def. 219; Duncan v. Spear, 11 Wend. 54; Borwick v. Wood, 3 Jones, 306; Choteau v. Hope, 7 Mo. 428; Phillips v. Martiney, 10 Gratt. 333; Fouldes v. Willoughby, 8 M. & W. 540; Simmons v. Lillystone, 8 Exch. 441; Gates v. Goreman, 5 Vt. 317; Hopkinson v. Shelton, 37 Ala. 306. Hill v. Epley, 31 209; Guild v. RichConn. 365; Carra The plaintiff did not by his pleadings in justict court estop himself from denying the validity of the sale. Pa. St. 331; Chatfield v. Simonson, 92 N. Y. ardson, 6 Pick. 364; Crandall v. Gellop, 12 dine v. Carradine, 33 Miss. 698; Railroad v. Schuyler, 38 Barb. 534; Fletcher v. McGill, 110 Ind. 395; Aiken v. Peck, 22 Vt. 255; Smith v. Sherwood, 4 Conn. 276; Richmond v. Hayes, 3 N. J. L. 492; Kidd v. Laird, 15 Cal. 162; People v. Frank, 28 Id. 516; Wood v. Jackson, 8 Wend. 40. In order that a judgment in a former action should bind by way of estoppel in a subsequent action, it must have directly decided a point which was material in such former action, and is in litigation in the latter. Dixon v. Merritt, 21 Minn. 196; 2 Taylor on Evidence, § 1507; Brooms Legal Maxims, 327; Demarest v. Dary, 32 N. Y. 281; Burlin v. Shannon, 99 Mass. 200; Aurora City v. West, 7 Wall. 82; People v. Johnson, 38 N. Y. 63; Woodgage v. Fleet, 44 N. Y. 1; Freeman on Judgments, 271. The evidence of ownership was not contradicted. Possession raises a presumption of ownership. McKeage v. Hanover Fire Ins. Co., 81 N. Y. 38; Holbrook v. N. Y. T. Co., 57 N. Y. 616. It is error to submit a question of fact to the jury where the evidence is not in conflict. Alger v. Gardner, 54 N. Y. 360; Insurance Co. v. Baring, 20 Wall. 159; Meguire v. Corwiner, 101 U. S. 108; U. S. v. One Still, 5 Blatchf. 403. The provisions of the statute relating to foreclosure sales must be strictly pursued. Chase v. McClelland, 49 Me. 375; Williamson v. Crawford, 7 Black 12; Everett v. Buchanan, 2 Dak. 267; Jones on Chat. Mtges. 437; Spaulding v. Barnes, 4 Gray 320; Mathews v. Fisk, 64 Me. 101; 2 Caine's Cases, 202; 2 Waits A. & D. 196; Simpson v. Carleton, 1 Allan, 109; 39 How. Pr. 429; Hall v. Sampson, 35 N. Y. 274; Pierce v. Haskell, 49 Ill. 23. A demand is not necessary when defendant has disposed of property that is not in his power to deliver, or when actual conversion is shown. Power v. Bassford, 19 How. Pr. 309; Esmay v. Fanning, 2 How. Pr. 228; 6 Waits A. & D. 206. Or when property has been sold, even under an order of court, when the order is a nullity. Pease v. Smith, 61 N. Y. 477; McPherson v. Neuffer, 11 Rich. 267; Hall v. Chapman, 35 Ala. 553; Robinson v. McDonald, 2 Ga. 116. In trover the damages should embrace the value of the property at the time of conversion. 6 Wait's Act. & D. 222; Comp. Laws, § 4603. CORSON, J. This is an action for damages for the unlawful conversion of personal property. Judgment was rendered for plaintiff upon a special verdict. Defendants appeal. The plaintiff, in his complaint, alleges, in substance, that the defendant D. M. Osborne & Co. is a corporation; that on or about |