signers, assumed the management of the to hold that such publications made on Sunbusiness and contracted the indebtedness in day cannot be recovered for, although perquestion on behalf of the corporation and haps much of the work in preparing the held himself out as acting for the corpora- matter for publication is done on secular tion. There is also evidence that early in days. However, in the case before us we May, 1906, Rohde, with the knowledge and are not dealing with a situation of agreeconsent of the other signers of the articles, ment made on a secular day for work to be acted as secretary and manager of the sales done generally, nor a case of agreement department of the defendant at a salary of made on Sunday for work afterwards done $1,200 per year, made contracts for the on a secular day and supported by a subsedefendant, and represented it in the manage- quent promise under the rule laid down in ment of the business. The jury in finding Melchoir v. McCarty, 31 Wis. 252, 11 Am. for the plaintiff necessarily found the facts Rep. 605; Williams v. Lane, 87 Wis. 158, in its favor, and, without further reciting 58 N. W. 77; Schmidt v. Thomas, 75 Wis. the evidence, it is sufficient to say that there 529, 44 N. W. 771; King v. Graef et al., is ample evidence to support the verdict on 136 Wis. 548, 117 N. W. 1058, 20 L. R. A. the points of Rohde's authority to bind the (N. S.) 86, 128 Am. St. Rep. 1101; and Vinz v. defendant, and that he did in fact contract Beatty, 61 Wis. 645, 21 N. W. 787. with the plaintiff and the Clark Engraving & Printing Company on defendant's behalf. All the services performed by the plaintiff and the Clark Engraving Company and material furnished were done, performed, and furnished for defendant after the filing of the articles of incorporation of the defendant, therefore after the defendant had existence as a corporation. In the case at bar the respondent placed itself squarely upon the right to recover for what the services performed on Sunday were reasonably worth. Section 4595, St., prohibits "labor, business or work except only works of necessity and charity," and no attempt was made by respondent to bring itself within the exception, if it were possible for it to do so. Under a similar statThe only serious question on this appeal ute in New York, a contract for the publicais the right of the plaintiff to recover for tion of an advertisement in a newspaper charges made for Sunday publications. It printed Saturday night and issued Sunday appears from the record that four of the was held void. Smith v. Wilcox, 24 N. Y. items recovered for, namely, May 13th, $32.-353, 82 Am. Dec. 302. This court has held 34; May 20th, $40.18; May 27th, $33.32; and June 3d, $64.16-were for Sunday publication, and the question arises whether the recovery for these items can be sustained. The main answer of respondent's counsel to the contention of appellant's counsel on this point is that the objection to these items as being Sunday publications was not sufficiently brought to the attention of the trial court; the only objection made to proof of these items being that the evidence was incompetent, irrelevant, and immaterial, while on the part of appellant it is contended that, the dates appearing, the court was bound to take judicial notice that such publications were on Sunday. The action being on quantum meruit to recover what the publication of the articles was reasonably worth, and the dates of publication appearing, we think the court was bound to take judicial notice of the Sunday publications, and that no recovery could be had therefor. McIntosh v. Lee, 57 Iowa, 356, 10 N. W. 895; Wilson et al. v. Van Leer et al., 127 Pa. 371, 17 Atl. 1097, 14 Am. St. Rep. 854; Louisville & N. R. Co. v. Brinkerhoff, 119 Ala. 606, 24 South. 892; 1 Ency. of Evidence, 768. Moreover, It is also insisted by appellant that there it appears from the record that at least three is an entire failure of proof on the item May of the Sunday publications were brought 31, 1906, $78.10. We cannot agree with counto the attention of the court as Sunday pub- sel for appellant on this point. A prima lications. The question is not free from dif- facie case was made on the whole bill for ficulty. It is a matter of common knowledge advertising, namely, $248.67, and no attempt that Sunday newspapers are published was made to contradict it. The evidence throughout the country, and that they con- was sufficient, especially in connection with tain in their columns much valuable adver- the admissions made on the trial. to a strict rule against the enforcement of Sunday contracts. Troewert v. Decker, 51 Wis. 46, 8 N. W. 26, 37 Am. Rep. 808; Vinz v. Beatty, 61 Wis. 645, 21 N. W. 787; Cohn v. Heimbauch, 86 Wis. 176, 56 N. W. 638; Williams v. Lane, 87 Wis. 153, 58 N. W. 77; Howe v. Ballard, 113 Wis. 375, 89 N. W. 136. In Williams v. Lane, supra, the last materials in a mechanic's lien case were furnished on Sunday, and, although actually used in the work, it was held that no recovery could be had therefor, since no subsequent promise was made to pay and none could be implied. In Sherry v. Madler, 123 Wis. 621, 101 N. W. 1095, it was held that, where a contract is void because executed on Sunday, acts of subsequent recognition do not constitute ratification of the original contract; such contract being absolutely void and incapable of ratification. In face of the statute and repeated decisions of this court, we see no escape from the conclusion that the plaintiff cannot recover for the Sunday items. If the rule of the statute be wrong, it is for the Legislature, not the courts, to afford relief. that the reasonableness of the charge for advertising in plaintiff's paper was not proven. We think there was sufficient evidence to support the finding of the jury on this point. Error is assigned respecting rulings on evidence, denying motions for nonsuit and directed verdict, refusal to charge as requested, in instructing the jury, and denial of motion for new trial. We do not regard these alleged errors of sufficient gravity to warrant treatment in the view we take of the case. It is sufficient to say that, with the exception of allowing recovery for the Sunday items, we find no prejudicial error in the record. It follows that the judgment Appeal from Circuit Court, Racine County; E. B. Belden, Judge. Action by Francis M. Baumann against the Metropolitan Life Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed. Action upon a life insurance policy which contained the following conditions: "Premiums are payable at the home office in the city of New York, but at the pleasure of the company suitable persons may be authorized to receive such payments at other places, but only on the production of the company's receipt signed by the secretary and countersigned by the person receiving the payments." "The contract between the parties hereto is completely set forth in this policy The judgment of the court below is modi- and the application therefor taken together fied by deducting therefrom $170, the amount and none of its terms can be varied or modof the Sunday advertising, and, as so modi-ified nor any forfeiture waived or premiums fied, is affirmed as of the date of the judg of the court below must be modified in accordance with this opinion. ment. BAUMANN v. METROPOLITAN LIFE (Supreme Court of Wisconsin. Dec. 6, 1910.) [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1026-1040, 1057; Dec. Dig. $ 388.*] 2. APPEAL AND ERROR (§ 1002*)—VERDICTCONCLUSIVENESS. A verdict on conflicting oral evidence, will not be disturbed on appeal. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. 8 1002.*] 3. INSURANCE (§ 371*)-NONPAYMENT OF PREMIUMS-FORFEITURE-ESTOPPEL. Where insurer canceled without right a life policy for the nonpayment of a premium, and the beneficiary was notified thereof, insurer was estopped from asserting that it did not properly inform her of the cancellation so as to relieve her from liability to tender subsequent premiums. [Ed. Note. For other cases, see Insurance, Dec. Dig. § 371.*] 4. INSURANCE (§ 362*)-NONPAYMENT OF PREMIUMS-EXCUSE. Where a life policy is improperly canceled by insurer and the beneficiary has knowledge thereof, no duty devolves on her to tender subsequent premiums. [Ed. Note. For other cases, see Insurance, Dec. Dig. § 362.*] Timlin, J., dissenting. in arrears received except by agreement in writing signed by either the president, vice president, secretary or actuary, whose authority for this purpose will be delegated. No other person has or will be given author. ity." Other facts are stated in the opinion. The jury returned a general verdict for plaintiff, and from a judgment entered thereon the defendant appealed. Bloodgood, Kemper & Bloodgood (Jackson B. Kemper, of counsel), for appellant. Fish & Storms, for respondent. VINJE, J. The only error relied upon is that there were no facts proven to sustain a judgment in favor of plaintiff. There is evidence to sustain a finding of these facts: The policy was issued October 13, 1904, on the life of plaintiff's husband, and the first semiannual premium was paid. The second semiannual premium became due April 13, 1905. A short time prior thereto the plaintiff went to the office of the company and offered to pay the premium, saying that she had already paid it to a man she supposed to be the company's agent, but had not received a receipt, and that she was ready and willing to pay it again. The office she went to was that of the district superintendent of the company, located in the Wolff Building, in Racine, and had the name "Metropolitan Life Insurance Company" on the door. This office was occupied by the district superintendent, Mr. John B. Comer, and the assistant superintendent. They had authority to receive, and receipt for, premiums. Plaintiff was unable to identify the man with whom she talked. She was told not pay the premium then; that they would look 1037. Plaintiff remitted from the verdict the amount of the unpaid premiums from April, 1905, to the date of death of insured, with 6 per cent. interest from the time each became due according to the terms of the policy. Judgment affirmed. TIMLIN, J., dissenting. STICKNEY v. BELL. (Supreme Court of Wisconsin. Dec. 6, 1910.) Appeal from Circuit Court, Juneau County; James O'Neill, Judge. and had not given her a receipt for it. He the policy on the 22d of May, 1905, for nonthereupon told her he was not allowed to payment of premium, and it cannot now be take it, but would notify the company and heard to say that it did not properly or credlet her know about it. A week or so later ibly inform her of the fact. The information she spoke to other agents of the company did come to her, and it was true. That is at her house, Fritz and Redfield. The latter enough. After the policy was canceled and came every month to collect premiums on an the plaintiff had knowledge thereof no duty industrial policy she held in the same compa- devolved upon her to tender subsequent preny. He told her he could not receive the miums. Guetzkow v. Michigan Mut. L. Ins. premium, but would look it up and attend Co., 105 Wis. 448, 81 N. W. 652; Langnecker to it. She spoke to him right along about v. Trustees A. O. U. W., 111 Wis. 279, 87 N. the matter and he gave her the same answer, W. 293, 55 L. R. A. 185, 87 Am. St. Rep. 860; and at last said he could not take the money Wuerfler v. Trustees W. O. D. 116 Wis. 19, 92 because he thought the policy had lapsed. | N. W. 433, 96 Am. St. Rep. 940; J. I. Case T. On May 22, 1905, the policy was canceled M. Co. v. Johnson, 140 Wis. 534, 122 N. W. on the books of the company for nonpayment of premium. The insured died August 16, 1908. The trial court instructed the jury as follows: "In order that she may recover in this action, the plaintiff must satisfy you, by the preponderance of the credible evidence, that she went to the defendant's authorized agent prepared to pay the premium in question, made known her desire to pay the same to such agent, and was only prevented or deterred from making such payment, or making lawful tender by conduct or statements on the part of such agent which reasonably led her, the plaintiff, to honestly believe that failure to make such payment or such tender at such time would not be relied upon by the defendant to work a forfeiture of the policy, and that she relied upon such conduct or representation, and therefore did not make a payment or tender of the premium at that time." In returning a verdict in favor of plaintiff under this charge and the evidence, the jury in effect found that plaintiff went to an agent of the defendant authorized to deal with her on the subject; that she offered to pay him the premium before it became due; that she was deterred from making such payment by conduct or statements on the part of such agent which induced in her an honest belief that a failure to then make the payment or tender would not be relied upon by the company to work a forfeiture of the policy. We cannot say that such a finding rests upon evidence so unsatisfactory that this court can set it aside. It is true there is a conflict in the evidence, but the jury resolved such conflict in favor of the plaintiff, and we cannot disturb the result they reached. The conflict consisted mainly in the denial by the superintendent, Comer, that he had ever had such conversations with plaintiff as she testified were had by her with some one in his office, and in the testimony of the agent Redfield that he had called upon her at her house to collect the premium but that she refused to pay it, and also in the testimony of an agent, Geise, who said that she had told him her husband had canceled the policy. Action by Avery Stickney against Frank E. Bell. Judgment for defendant, and plaintiff appeals. Affirmed. This is an action for trespass. The plaintiff owns the N. W. 4 of the N. E. 4 of section 32, township 17 north, of range 2 east, in Juneau county. The defendant owns the S. W. 4 of the N. E. 4 of the same section. The alleged trespass arose out of a dispute as to the true boundary line between these two descriptions, and the acts of trespass complained of consisted in the defendant's entering upon the disputed strip and cutting and removing timber therefrom and in his building a fence along what he claimed to be the true boundary line, and destroying the fence built by the plaintiff on what the latter claims to be the true boundary line. The amount of land involved is about one acre. Surveyors were employed by each of the parties to locate the true line. They disagreed only in one material particular, and that was the location of the southwest corner of the section. The surveyors employed by the plaintiff located this corner, substantially following the government field notes, midway between the south quarter post of section 32 and the south quarter post of section 31, in the same township; both of these quarter posts being known government monuments. The surveyor employed by the defendant located this section corner 4 It is urged that the plaintiff was not cred- rods and 15 links north and 6 rods and 4 ibly informed that the policy had been can- links west of the corner as established by celed by the company. It is an admitted the surveyors for the plaintiff, and justified fact, however, that the company did cancel his action in so doing on the ground that he Appeal from Circuit Court, Milwaukee County; Orren T. Williams, Judge. Action by Hyman Portman against Jesse Cappon. From an order vacating an order directing a verdict for defendant and granting plaintiff's motion for new trial, defendant appeals. Reversed and remanded, with directions to enter judgment for defendant. found the original government corner and at least two of the bearing trees marked in connection therewith, and also that he found evidences of the two remaining bearing trees which had disappeared, but the roots of which were still in existence, and which answered the call of the government field notes. The surveyors for each of the parties substantially pursued a like method in subdiAction for personal injuries. Plaintiff was viding the section, and no fault was found 24 years old and a carpenter by trade, of with the manner in which the surveyor em- foreign birth, having been in this country but ployed by the defendant did his work in this 31⁄2 years, could not speak English, and was regard. The west quarter post of section 32 unfamiliar with machinery. Defendant was could not be found. By locating the south- the owner of a factory wherein were operatwest corner of the section where he did, the ed certain machines in connection with his defendant's surveyor located the south line business of manufacturing sash doors, cabiof the defendant's land somewhat north of nets, and window frames. Plaintiff was emwhere such line was located by the survey-ployed by the defendant on the 10th day of ors employed by the plaintiff. The jury May, 1907, and did various work about the found, among other things, that the survey factory. About a month after he was emmade by defendant's surveyor was correct, and judgment was entered upon such verdict for the defendant, from which judgment this appeal is taken. The only error argued was that the evidence was not sufficient to sustain the verdict. James A. Stone (G. Stevens, of counsel), for appellant. J. T. Dithmar (D. H. Grady, of counsel), for respondent. BARNES, J. (after stating the facts as above). An examination of the record convinces us that there was ample evidence in the case to support the finding of the jury to the effect that the survey made by the surveyor employed by the defendant established the true boundary line of the strip of land in controversy. This being so, the judgment of the trial court must be affirmed. It would serve no useful purpose to recite such evidence. Judgment affirmed. PORTMAN v. CAPPON. (Supreme Court of Wisconsin. Dec. 6, 1910.) 1. MASTER AND SERVANT (§ 108*)-INJURIES SUFFICIENCY OF EVIDENCE. In an action for injuries sustained by a servant by the dowel pointer of a dowel machine at which plaintiff was at work becoming loose and striking him in the eye, that the shank of the dowel pointer was slightly worn would not show a defect in the machine rendering the master liable for the damages, where the evidence showed that such defect was insufficient to permit the dowel pointer to come off when a nut was on the shaft. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 203; Dec. Dig. § 108.*] 2. MASTER AND SERVANT (§ 97*) - MASTER'S LIABILITY-ACCIDENT. Where a machine nut and the threads on which it screwed were not worn or loose, the loosening and coming off of the nut after it was screwed on tight was an unavoidable accident, not imposing liability on the master for resulting injuries. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 163; Dec. Dig. § 97.*] ployed, at the direction of defendant, plaintiff was set to work at what is called a "dowel machine," designed and operated for the purpose of trimming the edges or ends off of dowels or small pieces of wood, and had worked at it about three hours two or three days before the accident. The machine consisted of a piece of shafting of iron or steel, resting on a wooden framework about four feet above the floor. At one end of the shaft was a round opening a little less than one-half inch in diameter, extending into the shaft to a depth of two inches from the end. The diameter of the hole increased slightly with its depth; that is, the diameter was larger at the inner end of the hole than at its opening at the end of the shaft. There were four slits in the end of the shaft about one-sixteenth of an inch wide, extending in as far as the hole, thus dividing it into four equal prongs. These prongs had a graduated thread on the outside for about an inch and one-half from the end, on which there was a nut to be used in making the opening larger or smaller by turning the nut with a wrench; the opposite end of the shaft being set in the framework. The diameter of the shaft or chuck increased slightly from the end, so that, as the nut was screwed on, the inside opening would be diminished, and the prongs would firmly engage the shank of the tool inserted. The diameter of the dowel pointer decreased slightly from the end, and, shank would closely fit the opening. Then, therefore, when fully inserted its whole when the nut was screwed on tight, the opening at the end of the chuck would be smaller than the inner end of the shank of the dowel pointer, and it could not come out as long as the nut was on. The power was conveyed to the shaft by a belt running from another shaft near the floor, where there was a live and dead pulley and a belt shifter. The shaft revolved at a speed of about 2,000 revolutions per minute, which speed could not be checked or reduced except by entirely cutting off the power. In the opening in the of the dowel pointer, and must be disregardend of this shaft were inserted different ed. There was no other evidence of improptools, according to the kind of work to be done, which were fastened by screwing the nut toward the framework, and the tool, while so held, would of course revolve with the same rapidity as the shaft. Plaintiff's work and duty required him to press pieces of wood against the revolving tool in the shaft. On the day he was injured plaintiff was engaged in operating the above-described machine, and, while the shafting was revolving, the dowel pointer inserted therein in some manner got loose and flew therefrom, struck plaintiff, and permanently destroyed the sight of his left eye. er construction or of a want of repair of the machine. It was urged, however, by counsel for plaintiff, that the nut came off at the time of the accident, and that it did so owing to a defective condition of the machine. The only evidence that could in any sense be said to support such a claim was the testimony already quoted. But testimony that the chuck would not be secure when held by a nut pressed back on the shaft falls far short of supporting the claim that the nut itself was liable to come off, or did come off, when the machine was in operation, especially in view of the undisputed fact that At the close of the evidence, defendant the shaft revolved to the left and the nut moved the court to direct a verdict in his turned to the right. Under such circumstancfavor, which motion was granted. Thereup-es, the operation of the machine would tend on plaintiff moved for a new trial, and the to tighten, not loosen, the nut. court made an order vacating and setting aside its former order directing a verdict in favor of defendant, and granted plaintiff's motion for a new trial, from which order defendant appealed. Doe & Ballhorn, for appellant. Glicksman, Gold & Corrigan, for respondent. VINJE, J. (after stating the facts as above). The plaintiff alleged a want of repair of the machine and an improper construction of the chuck thereof, by reason of which the dowel pointer could not be securely fastened, but would become loose and thrown therefrom when the shafting revolved. There was no evidence that any part of the machine other than the chuck and dowel pointer was out of repair, and the only evidence as to these parts being out of repair was that the shank of the latter was a trifle worn. But it is evident from the description of the chuck, and shank of the dowel pointer, set out in the statement of facts-showing that the diameter of the shank increased toward the end, while that of the hole in the chuck decreased and was appreciably diminished by the screwing on of the nut-that a slight wear of the shank would not permit it to come out when the nut was on. The chuck and dowel pointer are in evidence, and a careful examination of them shows that it is physically impossible for the dowel pointer to come out as long as the nut is on the chuck. It follows that, even if the shank of the dowel pointer was a little worn, which is questionable, it did not affect its being securely held in the chuck when the nut was on. The plaintiff testified that, a couple of hours before the accident, the defendant's foreman, Schroeder, assisted him in removing a tool from the chuck that had become so securely fastened that he could not get it out; that the foreman then wrapped some paper around the shank of the dowel pointer, inserted it in the chuck, and screwed the nut on tight. The foreman admits that he took the tool out for plaintiff, but denies that he put the dowel pointer in. He testified that when he went away the dowel pointer was out, and the nut was lying on the frame of the machine, a little to the left and about four inches back of the end of the chuck. The testimony is that the nut was first seen in the place described by the foreman a few minutes after the accident. Plaintiff's case must rest upon the fact that the foreman put the dowel pointer in the chuck and screwed the nut on tight, and upon the further undisputed fact that the nut was off shortly after the accident. This raises the question as to whether or not there is any evidence to sustain a finding that after the nut was screwed on tight it had come off during the operation of the machine. As we have already stated, there is no such evidence, and, if there were, it would be contrary to physical laws in view of the construction of the machine. But, even if it were conceded that the nut did come off, there would be no liability on the part of the defendant, for the plaintiff testified that the foreman screwed the nut on tight, and the undisputed evidence is that during an operation of over five years it had never come off before. The nut, chuck, and thread were in good repair, were not worn or loose, and, if the nut came off after it was screwed on tight, it was a result that no one could foresee-a pure accident for which no one was responsible. Wickert v. Wisconsin Cent. Ry. Co., 142 Wis. 375, 125 N. W. 943. The only witness who testified that the machine was improperly constructed said it was so "because the chuck I do not think would be secure when held by a nut pressed back on the shaft as that nut is. I would still say I would not think it would hold even if it had been run for ten years and it had al- It follows that the order of the trial court ways held the dowel." For reasons already vacating the order directing a verdict for destated, this testimony is completely nullified fendant and granting plaintiff's motion for a |