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ment in favor of Robbins was reversed, because the evidence did not show that the envelope contained $2,500, and further, because the evidenco showed that Robbins was a confederate of the robbers, which fact rendered void any contract such as claimed by Robbing. In Brown v. Peck, 2 Wis. 261, Brown was excused from returning the $100 which it was claimed he had received, because in fact he never received it. The court says: “There was in fact no valid, legal payment made, nor any received.' The money was left in the hands of one Leland, and never came into the possession of Brown.

“The foregoing cases seem to be relied upon in the opinion of the court as jnstifying in some way the proposition that a contract may be rescinded without return of the consideration. As a matter of fact, it is apparent that not one of them sustains the proposition that, where any thing of value has been received under a contract, rescission can be had without return of such value, except, perhaps, in the case of a minor or a person non compos mentis. The case of Jordan v. Elliott, 12 Week. Not. Cas. 56, is still moro unfortunate as an authority. It is said in the majority opinion that in that case a policy of insurance, and the assignment thereof, were left at defend. ant's house, and that it does not appear that the policy was restored. My reading of this case convinces me that the defendant never received any thing. It is true she sigued a receipt acknowledging that she had received her son's note and policy of life insurance and assignment thereof, but the opinion of the court expressly holds that this receipt was obtained by fraudulent representations as to its contents, and that at the same time the defendant refused to receive either the note or the policy '; and in another place they are referred to as a 'valueless consideration, which she (defend. ant) refused to accept.' How this case supports the view of the majority of the court I leave for others to say.

“In the present case there is absolutely no question but that Mrs. Kus. worm received from the bank, in consideration of her note and mortgage, a large amount of negotiabıle securities. According to the testimony of the witness Stone (which is uncontradicted), Mr. Gebhart handed to him (Stone), when he received Mrs. Kusworm's note, two notes of $4,100 and $300, respectively, signed M. Kusworm,' together with four or five col. lateral notes signed by other persons and aggregating $7,000 or $8,000 which were collateral to the M. Kusworm notes. All of these notes Mr. Stone immediately passed over to Mrs. Kusworm. There was no claim or proof that all of the notes were forged or worthless. The utmost claim made by Gebhart was, according to Mrs. Kusworm's own testimony, 'I have notes here for $4,900, which your husband has forged.' Granting this to be true, there were still notes aggregating $7,000 or $8,000 which were genuine and valuable securities, which passed into Mrs. Kusworm's hands as a consideration for the notes which she now seeks to avoid. The effect of the decision of the court is that she may avoid her own contract without accounting for or returning the considera. tion thereof, and without showing it to be worthless. I think this is contrary to all the law on the subject. It is said that she received no pecuniary benefit from it, because she turned all the notes over to her husband. Still, the bank parted with it, and, according to the rule laid down by Mr. Justice Mitchell, quoted with approval in the majority opinion, in order to justify rescission without restoration, there must have been ‘nothing of value parteil with on the one hand or received on the other.' But there was value received by Mrs. Kusworm. The fact that she turned thein over to

her husband, according to Stone's advice, surely cuts no figure. Stone was not the agent of the bank in any sense. He was simply the friend of Mrs. Kusworm. The sum and substance of the matter is that she voluntarily, on the advice of a friend, turned the notes over to her husband, and thus disabled herself from returning them. Was it ever held that a person, by voluntarily destroying a consideration received, or placing it in the hands of a third party, could relieve himself from the necessity of returning it or its value in case of rescission! I have yet to see the case which holds such a doctrine. There seems to me no element of estoppel here as against the bank resulting from the fact that Gebhart heard Stone direct Mrs. Kus. worm to turn over the notes to her husband, and said nothing. The notes had passed entirely beyond the bank's control. Gebhart bad received Mrs. Kusworm's note and mortgage as full and complete satisfaction for the bank's right and interest in them. She could do as she pleased with them, and the bank could say neither yea nor nay. There was no duty then resting upon Gebhart to speak, and consequently no estoppel from his failure to speak.

“The net result seems to be, from the conclusions reached by the conrt, that the plaintiff loses, without possibility of recovery, the notes of M. Kus. worm, and the collaterals which it lawfully held thereto, as well as the noto and mortgage of Mrs. Kusworin. Against such a result I respectfully protest.”

COMPOUNDING Felony.—A mortgage given to suppress a criminal pros. ecution is void: Note to Morrill v. Nightingale, 27 Am. St. Rep. 212. A note given to settle an agent's embezzlement is valid if there is not an agreement to stifle the prosecution: See Miller v. Minor Lumber Co., 98 Mich. 163; 39 Am. St. Rep. 524, and note.

DURESS—THREATS OF IMPRISONMENT.-In relation to husband and wife, parent and child, each may avoid a contract induced and obtained by threats of the inprisonment of the other; and it is of no consequence whether the threat is of lawful or unlawful imprisonment. The principle which under. lies all this class of cases is, that whenever a party is so situated as to exercise a controlling influence over the conduct and interest of another, contracts thus made will be set aside: Adams v. Irving Nat. Bank, 116 N. Y. 606; 15 Am. St. Rep. 447.

EQUITABLE ESTOPPEL- How ARISES. – To create an equitable estoppel the person sought to be estopped must do some act or make some admission to influence the conduct of another, which is inconsistent with his present claim, and the other party must have acted on the strength of such act or omission. Equitable estoppel depends apon the facts and circumstances of each particular case: Terrell v. Weymouth, 32 Fla. 255; 37 Am. St. Rep. 94, and note.

WHEN ONE OF Two INNOCENT PERBONS MUST SUFFER, he whose fault, neglect, or accident has caused the loss must bear it: Caldwell v. Neil, 21 La. Ann. 342; 99 Am. Dec. 738, and note; Beach v. Schoff, 28 Pa, St. 195; 70 Am. Dec. 122; McCoy v. Morrow, 18 Ill. 519; 68 Am. Doa. 578; Ridgway's Appeal, 15 Pa. St. 177; 63 Am. Dec. 686.

GOODMAN v. BAERLOCHER

(88 WISCONSIN, 287.) MECHANIC'S LIEN-DESTRUCTION OF BUILDING BEFORE COMPLETION.-Ma

terialmen and laborers are not entitled to a mechanic's lien on land for materials furnished or labor performed on a building thereon de.

stroyed before its completion. MECHANIC's LIEN-FILING AND DOCKETING CLAIM.—The right to a me.

chanic's lien is secured by delivering a claim therefor to the proper officer, within the time prescribed by statute, and leaving it with him to be filed. Such right is not prejudiced by the officer s failure to per. form his duty, as docketing the claim is not a prerequisite to securing the lien,

ACTION to enforce mechanic's liens for materials furnished and labor performed for the defendants and original contractors, Gross & Heimer, in the construction of a building for the defendant and owner, Baerlocher. The building was to have been completed by August 8, 1891, but, with the exception of the foundation, consisting of piles driven in the ground, the building was, on July 16, 1891, blown down and destroyed, when it was about two-thirds completed. On August 5. 1891, Gross & Heimer again commenced the construction and erection of the building mentioned in the contract, on the same foundation, and under the same contract, and continued work until November 15, 1891. Before any of the claims for liens on the several demands in this action had been filed the defendant, Baerlocher, had paid the contractors, Gross & Heimer, or on their account, the full contract price for the building. There were five several claims consolidated in the action. Most of the claims, among them that of Goodman, Wilcox & Co., were for materials furnished and used in the first or destroyed building. The others were for materials furnished and used in the second building. The claim of J. B. Noyes & Co., was for a balance for lumber and materials that went into the second building. This claim was deposited for filing with the clerk of the proper court on November 20, 1891, but being folded inside of another claim, a fact not noticed by the clerk, it was not indexed or marked filed until May 24, 1892. This claiin was found by the trial court to be valid. The court below found, as a conclusion of law, that the destruction of the first building did not cut off the liens on the premises upon which sueh building was situated, for indebtedness accrued for material and labor in its construction, and that all the claimants were entitled to

liens. Judgment was rendered accordingly, and the defend. ant, Baerlocher, appealed.

W. E. Hoehle, J. P. Geiser, and D. E. Roberts, for the appellant.

Ross, Dwyer & Hanitch, John Brennan, and Swift, Murphy & Bundy, for the respondents.

*19 PINNEY, J. 1. The original contractors, Gross & Heimer, had not performed their contract when the first build. ing, being in an incomplete condition, was destroyed. It had not been delivered to or accepted by the owner, and was therefore at the risk of the contractors, and the destruction of the building did not excuse them from performing the contract: Dermott v. Jones, 2 Wall. 1; Adams v. Nicohls, 19 Pick. 275; 31 Am. Dec. 137; Tompkins v. Dudley, 25 N. Y. 272; 82 Am. Dec. 349; School Trustees v. Bennett, 27 N. J. L. 515; 72 Am. Dec. 373. In Tompkins v. Dudley, 25 N. Y. 272, 82 Am. Dec. 349, it was held that the owner of the lots might recover back from his contractor payments in such case which he had made on account of the building. In this case the building had not only not been completed, but it had been utterly destroyed, so that the owner of the ground had received no benefit from the materials and work and labor employed in attempting to build it, and the original contractors could not have recovered any thing or enforced 992 a lien for what had been furnished or done in attempt ing to construct and erect the building. Whether the subcontractors or materialmen and laborers under the contractors are in any better situation, is the question to be determiined.

Section 3314 of the Revised Statutes provides that: "Every person who as principal contractor, . . . . performs any work or labor, furnishes any material, ..., in or about the erection, construction, .... of any dwelling-house, building, . . . . shall have a lien thereon, and upon the interest of the owner of such dwelling-bouse, building, in and to the land upon which the same is situated, not exceeding in extent,” etc. And section 3315 extends the right to “every person who, as subcontractor of a principal contractor, or employee of any contractor or subcontractor, performs any work or labor for, or furnishes any materials to, a principal contractor or subcontractor in any of the cases mentioned in the preceding section," if within sixty days

thereafter he gives the specified notice in writing to the owner, or his agent, of the property to be affected by such lien,“ with a statement of the labor performed or materials furnished, and the amounts due from such principal contractor or subcontractor, and that he claims the lien given” by chapter 143 of the Revised Statutes.

The lien provided by the statute is “in the nature of a charge on land given by statute to the persons named therein to secure a priority or preference of payment for the performance of labor or supply of materials to buildings or other improvements, to be enforced against the particular property in which they have become incorporated, in the manner and under the limitations therein expressly provided ": Phillips' Mechanics’ Liens, sec. 9. In Van Stone v. Stillwell & B. Mfg. Co., 142 U. S. 128, 136, it was said, in substance, that the lien is given to secure priority of payment of the price and value of work performed and the materials furnished; that “it is the use of the materials furnished 293 and labor expended by the contractor, whereby the building becomes a part of the freehold, that gives the materialman or laborer his lien under the statute.” The object is not only to encourage building, but to afford the contractor, materialman, or laborer security upon and against the property of the owner materially increased in value by the materials and labor wrought into it, and so rests upon the strongest equitable basis, for the building becomes a part of the realty, and it is the principal matter, to which the lien on the realty seems to be an incident, and without which the lien on the building would be fruitless or of little value. In Mallory v. La Crosse Abattoir Co., 80 Wis. 170, 175, in which the remedy given by this statute to subcontractors, laborers, and materialmen were considered, it was said: “The theory of the law giving to laborers and materialmen specific liens upon the property upon which their labor was performed or their materials used seems to be that, because the value of such property has been enhanced thereby, it is just that the property should be specifically charged with the bums ex. pended thereon for those purposes. The reason of the law extends to expenditures on the property by subcontractors as well as by those who contract directly with the owner.” And the cases of Munger v. Lenroot, 32 Wis. 544, and Winslow v. Urquhart, 39 Wis. 260, really rest upon this ground.

In this case the defendant, Baerlocher, the owner of the

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