tion: where was the contract completed, where did it first become a binding obligation between the parties? The place of contract is the State in which this occurred. This determination of what constitutes a consummation of the contract may involve the question of agency, as perhaps most of these sales are made through traveling salesmen whose powers to bind their principals may differ widely. If the agent only has power to negotiate for sales which are not binding upon the principal until approved by him, the contract is not complete until such approval has been given; the place of contract being the State in which the ratification was given.27 This general rule is upheld by Judge Cooley in Webber v. Howe, 28 but he points out the fact that in this particular case the order for the goods was taken by one of the plaintiffs in person; the acceptance as well as the giving of the order taking place in Michigan, therefore the contract was invalid by reason of the statutes of such State. It necessarily follows from this decision that where the agent has power to bind the principal, the place of contract is the State in which the order was given.29 Where the negotiations are entered into through the mails, the contract is completed in the State or country where the final acceptance takes place.30 When the question of agency is not involved in the case, the general rule is that the contract becomes a binding obligation between the parties when the goods are delivered to the common carrier. The place of contract is the State in which the goods were received by the common carrier, irrespective of the State to which they were to be carried.31 But

27 Kling v. Fries (1876), 33 (Mich.) 275, 277; Rindskopf v. Ruyter (1878), 39 Mich. 1, 3; Backman v. Jenks (1869), 55 Barb. (N. Y.) 468; Tegler & Co. v. Shipman (1871), 33 Iowa, 194, 199; Engs & Sons v. Priest (1884), 65 Iowa, 282; Schuenfeldt v. Junkermann (1884), Iowa, 20 Fed. Rep. 357; Aultman & Co. v. Holden (1895), 68 Fed. Rep. 467, 469.

23 (1877), 36 Mich. 150, 154.

29 Taylor & Co. v. Pickett (1879), 52 Iowa, 467, 469. 30 Whiston v. Stodder (1820), 8 Martin (La.), 95, 134. The civil law being in use in Louisiana, this case was decided according to the principles of the civil law; the court basing its decision on the doctrine laid down by Caseregis, in his 179th discourse on

commerce.

31 Schlesinger, etc. v. Stratton (1870), 9 R. I. 578, affirmed in Mack v. Lee (1881), 13 R. I. 293; Orcutt v. Nelson (1854), 1 Gray (Mass.), 536, 543; Kline v. Baker (1868), 99 Mass. 253; Finch v. Mansfield (1867), 97 Mass. 89, 91; Garland v. Lane (1865), 46 N. H. 245, 248.

START, C. J.: This action was brought to establish and foreclose a mechanic's lien on the premises described in the complaint. The plaintiff's lien claim was abandoned by him on the trial, and the action then proceeded as one for the recovery of money only for materials furnished and services rendered by the plaintiff to the defendants E. J. Grover and G. R. Jacobi pursuant to an express contract between them. The trial court made its findings of fact and conclusions of law, and ordered judgment against the defendants named for $60 and interest. They appealed from the judgment so entered. One of the defenses relied upon by the defendants was that the contract upon which the plaintiff's claim against them was based was an entire contract, and that the plaintiff had not performed it. Upon this issue the trial court found, in effect, that on October 12. 1898, the parties made a contract whereby the plaintiff agreed to raise and level the store building of the defendants, furnish plank for footing of cellar sill, square the cellar stud and board it in, put sill in center of the store, and replace the sidewalk as it was when the work began; for all of which the defendants agreed to pay him $100. That the plaintiff furnished the materials required, and substantially performed the work, but he did not level the building in a proper manner; that the cost of so leveling the building would be $40; and that the reasonable value of the plaintiff's services and materials furnished in the prosecution of the work is $60. The contention of the defendants is that the undisputed evidence in the case, and the findings of the court as well, conclusively show that the

plaintiff did not substantially perform his contract, and therefore the court erred in ordering judgment for the reasonable value of his part performance of the contract. The rule as to substantial performance of a building or other contract, where of necessity the owner of the structure must retain the benefits of the contract in so far as it may have been performed, is well settled in this State. The rule is that, where a contractor has in good faith made substantial performance of the terms of the contract, but there are some slight omissions or defects, which are readily remedied, so that an allowance therefor out of the contract price will give the other party in substance what he bargained for, the contractor may recover the contract price, less the damages on account of the omissions. But this rule of substantial compliance does not apply where the omissions or deviations from the terms of the contract or its performance are so substantial that an allowance out of the contract price would not give the owner essentially what he contracted for. O'Dea v. City of Winona, 41 Minn. 424, 43 N. W. Rep. 97; Leeds v. Little, 42 Minn. 414, 44 N. W. Rep. 309; Elliott v. Caldwell, 43 Minn. 357, 45 N. W. Rep. 845, 9 L. R. A. 52. The plaintiff claims that there was a substantial performance of the contract within the rule stated. It is manifest from the findings and the evidence that there was not. The trial court found that the plaintiff performed only 60 per cent. of his contract, and that the non-performance related to the leveling of the building. The undisputed evidence shows that the leveling of the building was the result sought by the defendants in entering into the contract. The raising of the building and the furnishing of the materials were merely incidental to the attainment of this object. Therefore the facts found by the court, when read in the light of the evidence, show that the non-performance of the contract by the plaintiff was not slight or casual, but that it was of a substantial nature, and of such extent that an allowance out of the contract price would not give the defendants essentially what they contracted for. The doctrine of substantial performance is, if not strictly logical, equitable and wholesome. Its purpose is to secure substantial justice between man and man by relaxing in proper cases the rigid, and, in practice, sometimes harsh, rule as to the entirety of contracts. While we regret the necessity of reversing a case of the character of this one, and especially so where the amount involved is so small, we cannot hold that there was a substantial compliance with the contract in this case without establishing a precedent which will enable parties to contracts to abandon them, and recover on a quantum meruit, whenever they may find it for their interest to do so. Judgment reversed, and a new trial granted.

NOTE.-Recent Decisions as to the Effect of Sub stantial but not Literal Performance of Contract.-To recover the purchase price under a building contract,

only a substantial, and not a literal, compliance therewith must be shown. Jennings v. Willer (Tex. Civ. App.), 32 S. W. Rep. 24. In an action on a contract to make a quantity of paper boxes, it appeared that, when the contract was entered into, a copy of the matter to be printed, arranged in a certain way, was submitted to plaintiff, and at the same time defendant submitted a folded cardboard of the kind of boxes theretofore used by defendant, which showed a different arrangement of the printed matter, but the evidence did not show which of these two was to be followed in the printing. Afterwards plaintiff delivered a number of boxes in which the printing was according to the copy, and the boxes so delivered were retained by defendant. Held, that defendant could not escape liability on the ground that the boxes were not according to the copy furnished. Gair v. Auerbach, 34 N. Y. S. 3, 13 Misc. Rep. 264. A finding that a building contract was substantially performed cannot be sustained, where it appears that the foundations were of less size than specified in the contract, and were constructed of inferior material; that the timbers in the frame of the building and in the parti. tions were smaller than called for by the specifica. tions; that the chimneys were out of plumb, floors and ceilings out of level, walls uneven, and corners not square; and that the doors, windows and blinds were defective, and of poor material. Anderson v. Petereit, 33 N. Y. S. 741, 86 Hun, 600. One who claims a lien on land on the alleged performance by him of a written contract to sink a well thereon must show a substantial compliance with each requirement thereof, where there has been neither a waiver nor acceptance of benefits thereunder by the other contracting party. Omaha Consolidated Vinegar Co. v. Burns (Neb.), 62 N. W. Rep. 301. In an action to can. cel a note a mortgage given for the construction of a house, where there was not a substantial performance of the contract, plaintiff was entitled to have the note canceled, though there was only a difference of $350 between the value of the house as constructed and as it should have been constructed, the contract price having been $3,000. Berry v. Quackenbush, 105 Cal. 299, 38 Pac. Rep. 740. A contract by which plaintiff agreed, in consideration of $10 per year paid by defendant, to maintain bins for storage of farm produce pending shipment, etc., held not substantially performed by furnishing a building, away from the rail. road station, and without any shipping facilities. Taylor v. Marcum (Minn.), 62 N. W. Rep. 330. Where work omitted by a contractor cannot be done except at great cost and with great risk to the building, the contract has not been substantially performed. Flannery v. Sahagian, 31 N. Y. S. 360, 83 Hun, 109. A find. ing that the contract was substantially performed is not inconsistent with a finding of defects in the work which amounted only to 6 per cent. of the contract price. Murphy v. Stickley Simonds Co. (Sup.), 31 N. Y. S. 295, 82 Hun, 158. A building contractor is not excused for failure to furnish the quantity of material contracted for by the fact that the work done was a fair average job for that class of building. Golden Gate Lumber Co. v. Sahrbacher, 105 Cal. 114, 38 Pac. Rep. 635. In an action on a contract for an R & M furnace, which contained no warranty, to recover the price, it appeared that an R & B furnace was put up, and it was claimed by plaintiff that there was practically no difference between the two furnaces. Defendant claimed that in several other respects the furnace was not according to contract, and that she expended money to make it effective, and she offered evidence to support such claim. Held, that it was

error to refuse to charge that if there was a substantial compliance with the contract, except that it took a certain amount to alter the work, the jury should find for plaintiff, less such amount. Hamburger v. Rottenberg, 30 N. Y. S. 240, 9 Misc. Kep. 477. Where the contract for a rebate on sales to plaintiff provided for a form showing sales made, plaintiff is not barred from recovery where he furnishes all the data neces. sary, though the precise form was not followed. Gottschalk Co. v. Distilling & Cattle Feeding Co. (U. S. C. C.), 62 Fed. Rep. 901. It was not a substantial performance of a contract to complete a partly finished building for $3,400 that the building was completed with the exception of putting in a few locks, doorknobs, some doorsteps, and a small amount of plastering, to put in which cost the owner $267. Smith v. Sheltering Arms, 35 N. Y. S. 62, 89 Hun, 70. Where there was testimony, in an action to recover on a building contract, that a house could not be built without more or less cracking of the walls, a referee's finding refusing to allow defendant for moneys paid for repairing such defects in plastering, which were not extraordinary and were not due to bad workmanship, will not be disturbed. Walsh v. Campbell, 37 N. Y. S. 362, 1 App. Div. 631. Plaintiff agreed to build the foundation of three houses for $180; that the bottom stone should be laid according to the usual building regulations; and that the cesspools should be cemented throughout. The bottom stone was not of the size called for, nor in accordance with usual building regulations; and plaintiff used dry mason work in the cesspools, instead of cement. Defendant had to spend $30 in cementing the bottom of the cesspools, and then the building department refused to pass them, unless they were rebuilt, which would cost $90. Held, that there was not a substan tial compliance with the contract. Cahill v. Heuser, 37 N. Y. S. 736, 2 App. Div. 292. In an action to foreclose a mechanic's lien for $390, a finding that plaintiffs failed to perform work to the extent of $13.70 does not show that the contract was not substantially per. formed. D'Andre v. Zimmerman (Sup.), 39 N. Y. S. 1086. A failure on the part of plaintiff to cover a well when completed does not affect his right to recover for the work done, where the cost of such cover is trifling, and is deducted by the jury from the amount due him. Chapin v. L. Candee & Co., 35 N. Y. S. 1018, 14 Misc. Rep. 453. Where plaintiff agreed to make cer. tain alterations in defendant's building, including "the cutting of a door from sitting room to cellar," but said door was not cut because of the protest of defendant's tenant, and the building, though otherwise completed, was destroyed before defendant accepted it, the finding of the jury, in a substantial compliance, and that the part uncompleted was omitted in good faith, will not be disturbed on ap. peal. Bradford v. Whitcomb (Tex. Civ. App.), 32 S. W. Rep. 571. In an action on a contract to furnish heating apparatus, a recovery may be had if there has been a substantial compliance with the terms of the contract, less the damages requisite to indemnify the other party for failure to fully comply therewith. Shepard v. Mills, 173 Ill. 223,50 N. E. Rep. 709. Where there has been substantial compliance with a contract to put in a steam heating apparatus, the contractor may recover the contract price less the amount nec. essary to remedy the defects. Shepard v. Mills, 70 Ill. App. 72. Though a contractor fail to comply with his contract in some particulars, he may recover from the landowner the reasonable value of the work and materials, less any damage the latter may have sustained by breach of the contract. Buschman v. Bray,

68 Mo. App. 8. A builder who has failed to completely perform his contract in every detail cannot recover the contract price less deductions for the necessary expense of completing the work, where an intention to substantially perform has been negatived by his refusal to complete when called on. Kohl v. Fleming, 47 N. Y. S. 1092, 21 Misc. Rep. 690. Where there is a substantial performance of a contract, the contractor can recover the contract price of his work, without proof of the value of it. Lennon v. Smith, 48 N. Y. S. 456, 23 App. Div. 293. Failure to comply with the specifications of a building contract, where some of the deviations and omissions reduce the strength and solidity of the building, and others relate to matters of style and finish, inferior materials, and defective construction, is such substantial nonperformance as will bar recovery of the contract price. Spence v. Ham, 50 N. Y. S. 960, 27 App. Div. 379. Where a contractor failed to substantially perform a contract for the woodwork of a brick dwelling, the fact that the owner specified many of the de. fects, and required the contractor to remedy them, and then took possession of the house, without objecting to other substantial defects, does not constitute a waiver of such remaining defects. The most that can be said is that it is evidence touching a waiver. Spence v. Ham, 50 N. Y. S. 960, 27 App. Div. 379. Where departure from the specifications of a building contract resulted in substantial defects, the owner of the building cannot be required to accept damages, or deduction from the contract price, if the agreement was to pay upon performance. Spence v. Ham, 50 N. Y. S. 960, 27 App. Div. 379. Substantial performance of a building contract permits only such omissions and deviations from the contract as are inadvertent or unintentional, and do not impair the structure as a whole, and may without injustice be compensated for by deductions from the contract price. Spence v. Ham, 50 N. Y. S. 960, 27 App. Div. 379. By the contract plaintiff undertook to provide a plant with a capacity of 400 boxes of soap a day. The plant provided had a capacity of only 200 boxes, but the amount called for by defendant had never ex. ceeded the 200. Held, that plaintiff had substantially fulfilled its agreement. Yetrolia Mfg. Co. v. Jenkins, 51 N. Y. S. 1026, 29 App. Div. 403. Under a contract to make a "water tight" cellar, by pursuing a spec ified method, mere proof that the cellar, as actually constructed, was "water drained," fails to establish a performance, for the defect is not merely technical, inadvertent, or unimportant, but pervades the whole contract. MacKnight Flintic Stone Co. v. City of New York, 52 N. Y. S. 747. There could be no recov. ery, in an action on a contract, on the ground of a substantial performance thereof, where plaintiff admitted that he had voluntarily left undone over onetwentieth of the work which he had contracted to perform. Fox v. Davidson, 55 N. Y. S. 524, 36 App. Div. 159. The evidence being conflicting, the question whether a bridge was built substantially according to contract was properly submitted to the jury, under an instruction that, if it was so far different from the contract as not to answer the purpose for which it was intended, there could be no recovery for it. Russell v. Board of Comrs. of Iredell County, 123 N. Car. 264, 31 S. E. Rep. 717. To entitle a contractor to recover on a building contract not fully complied with by him, under the doctrine of substantial performance, it must appear, not only that he endeavored to perform it in good faith, but also that he has done so, except as to unimportant omissions or deviations, which are the result of mistake or inadvertence, and

were not intentional, and which are susceptible of remedy, so that the other party will get substantially the building he contracted for. Anderson v. Todd (N. Dak.), 77 N. W. Rep. 599. Where literal performance of a contract is rendered impracticable by the acts of one party, a substantial performance is all that is required from the other. Gallagher v. City of Philadelphia, 9 Pa. Sup. Ct. Rep. 498, 43 W. N. C. 499. Where a printer agreed to furnish paper in certain books contracted for bearing a certain water-mark name, and that paper was no longer manufactured under that mark, but is made under another mark, the contract is complied with if paper made under the new name is furnished, as the water mark gave no quality to the paper, but was only evidence of it. Gallagher v. City of Philadelphia, 9 Pa. Sup. Ct. Rep. 498, 43 W. N. C. 499.

JETSAM AND FLOTSAM.

STANDARD TIME.

The introduction into common use of what is known as standard time has raised some legal questions of general interest. The railroads of the country are so numerous, they employ so many people, and they carry so many passengers, that the question of train time is to a great portion of the people the most important practical question that arises in respect to the time of day. The combined action of all the railroads in adopting standard time has a powerful and well nigh controlling influence upon the custom of the people in the reckoning of the hours. It is doubtless true that a very large majority of the population keep their clocks and watches set by railroad time. But, notwithstanding the widespread adoption of that system by popular usage, the courts still refuse to recog. nize it as the legal standard, unless made so by statute or affirmatively proved to have been adopted by custom in the community where the question arises.

In the case of Henderson v. Reynolds, 84 Ga. 159, 7 L. R. A. 327, the use of standard railroad time instead of sun time in regulating a trial was held error. In this case the sun time was faster than the railroad time, and a verdict was received after 12 o'clock on Saturday night by the sun time, though before twelve by standard time. It was decided that sun time should have been followed, but the error was imma. terial, as a verdict could be received on Sunday.

In Searles v. Averhoff, 28 Neb. 668, summons was returnable before a justice at 10 o'clock A. M. Defendant failed to appear. The justice waited until 11 o'clock standard time, which was about half an hour faster than common time, and then rendered judgment by default. Defendant appeared before 11 o'clock common time, and it was held that the judgment by default was premature and invalid.

In the recent case of Jones v. German Ins. Co. (Iowa), 46 L. R. A. 860, the question was as to the expiration of an insurance policy which by its terms extended until "12 o'clock at noon" of a certain day. Fire broke out at about 11:45 o'clock A. M. of that day by common time and about 2 12 minutes after 12 o'clock by standard time. It was held that the insurance was still in force. It did not appear that any statute had enacted any change in the ordinary rule which regards noon as the time when the sun crosses the meridian. There was evidence of the customary use of standard time at the place, but this was held not sufficient. The court says: "It was not only nec

essary to show the customary use of standard time, but that by custom of the place ‘at 12 o'clock at noon' meant at 12 o'clock standard time."

The adoption of standard time for all purposes of public and private business would be a distinct gain. For railroad purposes its use is so great an advantage as to be well-nigh indispensable. But the use of one standard for railroad business and another for many other purposes results in uncertainty, confusion, and annoyance. While the customary use of standard time for all purposes may become sufficient to constitute a legal adoption thereof in any community, there must often be great uncertainty as to whether such custom has yet become sufficient for that purpose. The obvious remedy for the uncertainty and for all the difficulties of the situation is for the legislatures to make standard time legal for all purposes. -Case and Comment.

NEGLIGENCE OF A BAILEE IMPUTED TO HIS BAILOR.

Few questions have led to such dispute and con fusion as that of imputed negligence. In a recent case a mule lent by the plaintiff was injured by the concurring negligence of the bailee and the defendant. It was held that the bailee's negligence must be imputed to the plaintiff and was therefore a bar to his recovery. Illinois Cent. R. R. v. Sims (Miss.), 27 South. Rep. 528. The decision is opposed to the true rule of contributory negligence which denies recovery only where the plaintiff's own negligence, or that of his servant or agent, has contributed to cause the injury. The defendant's wrong, in such a case, is not lessened, but public policy and justice demand that as long as damages at common law are not appor tioned as in the admiralty courts, no one himself causing or responsible for another's causing, his own injury, shall shift the burden of it even upon a party who cannot deny having been in the wrong. The facts of the principal case do not bring it within this rule. The plaintiff was not responsible for his bailee's acts; he could not have been held liable to one whom the latter negligently injured while driving the mule. On principle, therefore, recovery should have been allowed, as the plaintiff was without fault and had been injured by a wrongful act of the defend. ant-the fact that another had been equally in the wrong with the defendant furnishing the latter with

no excuse.

There are a few decisions in point. In one line of cases where a shipper's goods, in the possession of a carrier, have been injured by the concurring negli. gence of the carrier and a third person, the shipper has been denied an action against the latter. Arctic Fire Ins. Co. v. Austin, 69 N. Y. 472. These cases are supportable only on the questionable ground that since the carrier is an absolute insurer, public policy should inflict on him the consequences of any loss. It is clear that these decisions, whether sound or not, do not govern the principal case. Two early American decisions, wherein the point received no consideration, support the case under discussion. On the other hand, the New Jersey court in an able opinion has recently denied the doctrine of imputed negligence under similar circumstances. New York, etc. R. R. v. New Jersey, etc. R. R., 60 N. J. Law, 338. Further, the analogous cases which allow one injured in a hired carriage by the concurrent negligence of the driver and a third person to bring action against either party, point to the same result. Randolph v. O'Riordan, 155 Mass. 221. Such scant authority as can be mustered to the support of the principal case, coming, as it does, from a time when the doctrine of

imputed negligence was much befogged, and being contrary to principle, would seem, therefore, to afford no justification for the decision.-Harvard Law Review.

TRUSTS-PRACTICAL OPERATION OF THE REMEDY

ADOPTED BY TEXAS.

The amount of discussion and divergence of opin-. ion expressed in recent magazine publications, more than any complication of legal principles involved, in duces us to review the recent decision of the federal supreme court in the case of Waters-Pierce Oil Co. v. State of Texas, 20 Sup. Ct. Rep. 518, in, which proceeding the defendant company has been forbidden doing business in the State of Texas, being held to have violated certain provisions of the Texas antitrust law, and thereby having forfeited its license. The principles of law announced are extremely important, though they seem quite well settled.

The usual law exists in Texas (Acts of 1889, p. 87). whereby a foreign corporation, upon filing a certified copy of its articles of incorporation with the secretary of state, secures a license to do business in the State. The Waters Pierce Oil Co., complying with these provisions, obtained such a license for a period of ten years, and engaged in active business. Subsequent to the issuance of this license an anti-trust law was passed, and this proceeding was brought against the plaintiff in error, alleging a violation of this law, and praying that its license be revoked.

It is clear, construing the statute according to the interpretation given it by the Texas courts, that no question of interstate commerce is involved; com. merce consisting in the transportation of commodities, and not in their sale. Ex parte Kochlier, 30 Fed. Rep. 869. And as the construction placed upon a State statute by the courts of the State is held in the present case not open to review by the federal courts, inquiry into the interpretation of the statute, its construction and the question of interstate commerce are summarily disposed of. Tullis v. L. E. & W. R. R. Co., 275 U. S. 348; R. R. v. Paul, 173 U. S. 404.

The really serious question involved is this: "Can a State license a foreign corporation to do business within its limits, and after money, time and labor are expended by the company, in good faith, pass such legislation, after the granting of the license, as will produce such a result as that involved in the present case? The consideration of this proposition is not indispensable to a review of the case, as at the time the license was issued to the Waters Pierce Oil Co. an anti trust law existed, which was much violated by the company as the one subsequently passed was; but we consider the question, for the reason that it has been so persistently discussed in connection with the present case. A license issued to a foreign corporation for valuable consideration, even though construed as a contract, is always subject to such reasonable violation, at the hands of the State, as a proper exercise of the police power may effect. Metropolitan Board of Excise v. Barrie, 34 N. Y. 657; Stone v. Mississippi, 101 U. S. 814. A State cannot by any grant estop itself from a free and unrestricted exercise of its police power (Beer Co. v. Mass., 97 U. S. 25), and the passage of an anti-trust law is held to be such an exercise of this power. Munn et al. v. State of Ill., 94 U. S. 77. Hence the passage of an anti-trust law affecting the rights held by a foreign corporation under a license previously granted is valid.

And further, the law seems clear to the effect that the word citizen, as used in the Federal Constitution, § 2, art. IV, and in the XIV amendment, does not apply to corporations, hence the plea respecting equal

WISCONSIN...................1, 4, 6, 17, 21, 32, 48, 50, 68, 69, 80, 96, 102

1. ACTION-Settlement for Seduction.-Where plaintiff was seduced by P, and a settlement was made, for a gross sum, of her claim for satisfaction, her father's claim for seduction, and of the obligation of P to support the child born to plaintiff, and the money was paid to plaintiff's father, an action by her against her father to determine and recover the part thereof she is entitled to is an action at law, so that the question is for the jury.-KAMMERMAYER V. HILZ, Wis., 82 N. W. Кер. 689.

2. ACTIONS-Slander of Title.-Under Pub. St. ch. 167, § 1, dividing personal actions into actions of contract, tort, and replevin, a personal action for injury by malicious publication of a notice of foreclosure sale, falsely alleging a breach of the conditions of a mortgage, whereby special damage was sustained, is an action of tort for slander, within chapter 183, § 1, for