Mitchell and another vs. The Western Paving & Supply Co.

been twenty-one years old. But it is required of him that he exercise such a degree of judgment and prudence as is ordinarily exercised by persons of similar age, experience, and intelligence. It does not appear that he was not a boy of ordinary intelligence. He lived in Milwaukee. He had on several occasions made journeys by railroad alone. He was not of such immature years as to be relieved from all responsibility for prudent conduct. His experience was such as to acquaint him with the fact that there was danger in jumping from a moving train. It must be held that he jumped at his own risk.

Even if this were not so, it is not easy to apprehend how the failure to stop the train could be the proximate cause of the plaintiff's accident. The natural consequence would be that plaintiff would be carried by the station. If this was a breach of a binding contract of carriage, it would furnish ground for appropriate damages. But that the plaintiff should jump from the train while in rapid motion was neither a natural nor probable consequence of the failure to stop the train. And so it could not well be anticipated. For that reason, it was not the proximate cause of the plaintiff's accident. Block v. Milwaukee St. R. Co. 89 Wis. 371.

By the Court. The order of the superior court of Milwaukee county is affirmed.

WINSLOW, J., dissents.

MITCHELL and another, Trustees, Respondents, vs. THE WESTERN PAVING & SUPPLY COMPANY, imp., Appellant.

April 8-April 30, 1897.

Wells v. Western Paving & Supply Co., ante, p. 116, followed.

APPEAL from a judgment of the circuit court for Milwaukee county: D. H. JOHNSON, Circuit Judge. Reversed.

Kneeland vs. The Western Paving & Supply Co.

For the appellant there was a brief by Hoyt, Ogden & Olwell, and oral argument by F. M. Hoyt.

For the respondents there was a brief by Howard & Mallory, and oral argument by Samuel Howard and R. B. Mallory.

MARSHALL, J. The questions in this case are the same as those in the case of Wells v. Western Paving & Supply Co., ante, p. 116. For the reasons therein stated, the judgment and mandate following must be entered.

By the Court.- The judgment of the circuit court is reversed, and the cause remanded for further proceedings according to law.

KNEELAND, Respondent, vs. THE WESTERN PAVING & SUPPLY COMPANY, imp., Appellant.

April 8-April 30, 1897.

Wells v. Western Paving & Supply Co., ante, p. 116, followed.

APPEAL from a judgment of the circuit court for Milwaukee county: D. H. JOHNSON, Circuit Judge. Reversed.

For the appellant there was a brief by Hoyt, Ogden & Olwell, and oral argument by F. M. Hoyt.

For the respondent there was a brief by Howard & Mallory, and oral argument by Samuel Howard and R. B. Mallory.

MARSHALL, J. All the questions presented on this appeal were decided in Wells v. Western Paving & Supply Co., ante, p. 116. Following that case, the judgment of the circuit court is reversed, and the cause remanded for further proceedings according to law.

By the Court.- So ordered.

Follansbee and others vs. Kellner.

BOYD, Respondent, vs. THE WESTERN PAVING & SUPPLY COMPANY, imp., Appellant.

April 8-April 30, 1897.

Wells v. Western Paving & Supply Co., ante, p. 116, followed.

APPEAL from a judgment of the circuit court for Milwaukee county: D. H. JOHNSON, Circuit Judge. Reversed.

For the appellant there was a brief by Hoyt, Ogden & Olwell, and oral argument by F. M. Hoyt.

For the respondent there was a brief by Howard & Mallory, and oral argument by Samuel Howard and R. B. Mallory.

MARSHALL, J. The questions presented in this case aro the same as those decided in Wells v. Western Paving & Supply Co., ante, p. 116. That case rules this.

By the Court.-The judgment of the circuit court is reversed, and the cause remanded for further proceedings according to law.

FOLLANSBEE and others, Respondents, vs. Kellner, imp., Appellant.

April 8-April 30, 1897.

Levy v. Wilcox, ante, p. 127, followed.

APPEAL from a judgment of the circuit court for Milwau kee county: D. H. JOHNSON, Circuit Judge. Reversed.

For the appellant there was a brief by Hoyt, Ogden & Olwell, attorneys, and George Lines, of counsel; a brief in reply by Hoyt, Ogden & Olwell; and the cause was argued orally by F. M. Hoyt.

Enos and another vs. Sanger and another.

For the respondents there was a brief by Howard & Mallory, and oral argument by Samuel Howard and R. B. Mallory.

MARSHALL, J. This action is ruled by Levy v. Wilcox, cnte, p. 127.

By the Court.- The judgment of the circuit court is reversed, and the cause remanded with directions to dismiss the complaint and enter judgment barring the action to void the tax-sale certificate and the proceedings on which it was based, under sec. 1210h, S. & B. Ann. Stats., and for costs in favor of defendant Kellner, to be taxed according to law.

96 150 98 331

96 150

101 57

96 150

107 129

ENOS and another, Executors, Appellants, vs. SANGER and another, Respondents.

112

96

e116

April 8-April 30, 1897.

137 Agreement to pay debt of third person as part of purchase price of land.

150 524 61 LRA 511 61 LRA 512

Where the grantee in a conveyance has assumed and agreed to pay, as part of the purchase price of the premises, a debt owing to a third person, the latter may maintain an action on the agreement, although the grantor was not liable for the debt and no consideration passed to the grantee from such third person or his debtor.

APPEAL from a judgment of the superior court of Milwaukee county: R. N. AUSTIN, Judge. Reversed.

On the 29th day of April, 1893, Casper M. Sanger executed to plaintiffs a mortgage upon certain real estate to secure the payment of $22,500 at the times and with the interest therein provided for. On the 25th day of July, 1893, the mortgagor, by deed with full covenants except as to such mortgage, conveyed such real estate to Emil and Alfred T. Sanger. On the 19th day of August, 1893, the last

Enos and another vs. Sanger and another.

named grantees, by a deed with full covenants except as to the aforesaid mortgage, conveyed such real estate to the C. M. Sanger Sons Company. Such deed contained a clause in the usual form, to the effect that the grantee, C. M. Sanger Sons Company, assumed and agreed to pay the said mortgage debt. Default was made in the payment of interest accruing on such debt, and thereupon this action was brought to foreclose such mortgage. The complaint contained the usual prayer for relief to the effect that the decree should provide for personal judgment against all parties personally liable for the mortgage debt in case of a failure to realize a sufficient sum from a sale of the property to satisfy such debt, with interest and costs. All the facts were found as above set forth. The trial court held that the C. M. Sanger Sons Company was not personally liable for the mortgage debt, and thereupon judgment was entered as prayed for in the complaint, except in respect to providing for a deficiency judgment against the C. M. Sanger Sons Company. Plaintiffs thereupon appealed from that part of the judgment refusing to provide for such a deficiency judgment.

For the appellants there was a brief by Miller, Noyes, Miller & Wahl, and oral argument by Geo. H. Wahl.

Charles F. Hunter, of counsel, for the respondents, contended, inter alia, that where the grantor is not personally bound to pay the mortgage debt, his grantee does not become bound by reason of having assumed the payment of the mortgage debt in the deed. Vrooman v. Turner, 69 N. Y. 280; Norwood v. De Hart, 30 N. J. Eq. 412, 414; King v. Whitely, 10 Paige, 465; Trotter v. Hughes, 12 N. Y. 74. The property, according to all the evidence, was sold to Emil A. and Alfred T. Sanger for $30,000, paid to the grantor by the grantees. The mortgage of $22,500 was excepted from the covenants of this conveyance. The grantees therein conveyed the property to the defendant company for $30,000 paid to them by said company, the receipt of which the