payment of any orders, for any such work done thereafter and prior to the next tax levy. The only substantial change in this prohibition, which was made by the modifying order of September 3d, so far as the present question is concerned, was to allow necessary repairs to be made upon county roads or roads which had been designated for the expenditure of county money. The purpose and meaning of this modification was to allow the board to make emergency repairs, or such repairs on roads as were necessary to make travel safe, so that the duty of the county to travelers upon its highways might still be discharged. It is idle to say or to argue that the meaning of the modification was to allow, generally, road work, as contemplated by the resolution of June 5th, to be carried on under new contracts. If such was its meaning, then it was not a modification, but an abrogation, of the injunctional order, and the proper course would have been to vacate the original order. New contractors were found who were willing to go on with the work and take their chances. A majority of the county board, after the tax levy of November, 1894, pretended to accept the work, and a considerable part of it was paid for. It is said, and gravely found by the circuit court, that this was all done in good faith. There is as little room for good faith in the deliberate disobedience of an injunctional order as there is in the deliberate commission of a crime. Nor is there room for ratification or estoppel. The plain fact is that the acts of the public officials and contractors, after the injunctional order of August 7th was issued and served upon them, in proceeding with general road work, and in issuing orders to pay for the work, and in actually paying for a good part of it, were and are utterly indefensible. They were deliberate contempts of court. They could not be in good faith, under such circumstances, nor can acts of ratification or estoppel nullify the command of the court. By the temporary injunction, the parties to the action were commanded to refrain from further action until the controversy was heard upon its merits and decided, so that the final judgment might be effective. This order has been disobeyed, and large sums have been paid out by the county officers in defiance of the order. Now, at the close of the litigation, it is found that the preliminary injunction should be made permanent; but the statu quo has been changed by disobedience of the preliminary order, and this disobedience is alleged to have been a disobedience in good faith, and a disobedience which the county board has ratified and condoned. These claims are manifestly absurd.

The work, under the resolution of June 5, 1894, was illegal from start to finish. After the injunctional order of August 7th, it should have stopped at once in obedience to the order of the court; but the order having been disobeyed, and a large part of the money having been paid out, the officials who assisted in

the violation of the injunction, either by voting the issuance of orders or by countersigning the same, or by paying out the money thereon, as well as the defendants who received such moneys, to the extent of the amount respectively received by them, must be required by the judgment to repay to the county treasury the sums so wrongfully paid out.

The question of the recovery of the sums paid out on the 6th of August, just prior to the commencement of this action, is now to be considered. The total amount then paid

out was $2,342.95, of which $1,008 was paid to the defendant McClure, chairman of the town of Nebagamain, and also chairman of the county board, upon four orders issued to the contractor Cassidy, and indorsed by him to McClure for the convenience of Cassidy; $1,007.25 was paid to the defendant the Duluth Trust Company upon four orders issued to the contractor McLaggan, and purchased by the company of McLaggan; and $327.70 was paid to the defendant O. K. Anderson, then county clerk of Douglas county, upon an order issued to the contractor Cloney, and by him transferred to Anderson. As to the moneys paid to McClure and Anderson, as assignees of the Cassidy and Cloney orders, the situation is not doubtful. Both of these defendants were public officials, charged with important duties in relation to the expenditure of the public moneys. They were trustees of the public funds. Among other duties, both of these officers were required to countersign all county orders, Rev. St. 1878, §§ 667, 709, subd. 3. It was their sworn duty to issue no orders for highway work, under section 1309, until a committee of three had viewed the work, and reported that the same was done in accordance with the contract. This duty they violated flagrantly. Not only was there no such inspection of the work, but the bills were railroaded through the board on the day of their presentation or on the following day, when there were no moneys in the fund to pay them, evidently with a settled design to give no opportunity for inspection. The warrants were immediately indorsed by the contractors to the defendants McClure and Anderson, respectively, and the money drawn out of the treasury. It is true the court has found that the defendants in question had no pecuniary interest in the transaction, and that they acted in good faith, but even these findings cannot relieve them from liability for their breach of trust in drawing out of the treasury money for a purpose not authorized by law. Such money they must return, even if they had no wicked intent; but we do not think the circumstances in proof admit of a finding of good faith. The allowance of these accounts and payment of these moneys were marked by haste, and apparent collusion with the contractors, which requires an explanation more convincing than any which appears in the evidence in this case. The presumption of fraud which neces

sarily arises from the allowance of illegal bills so hastily, when there were no funds in the treasury to pay them with, the money being drawn out by the auditing officers themselves, has not been met and rebutted. Under the authorities cited in this opinion in our own state, as well as the authorities cited in Frederick v. Douglas Co., supra, we hold that the defendants McClure and Anderson must be held liable to return the county funds so received by them. The general principles of law laid down in the cases of Frederick v. Douglas Co. and Lumber Co. v. McIntyre are applicable to this case. Moneys paid out by public officers, in direct violation of law, may be recovered from the officials themselves, and from the recipients thereof, in actions which are seasonably brought by taxpayers on behalf of the public, especially where the transaction is marked by haste, fraud, collusion, or concealment. The evidences of haste, collusion, and concealment in this case are too plain to be overlooked or misunderstood, and it is evident that the contractors McLaggan, Cassidy, Cloney, and Agen actively assisted the disbursing officers in their efforts to deplete the treasury before interference by action was possible, and hence they must also be held liable to the extent of the moneys received by them, respectively. As to the moneys paid to the Duluth Trust Company, the court found that the orders held by the company were purchased for a valuable consideration, and in good faith, and with no knowledge of any conspiracy or irregularity in the expenditure of the money. These findings are sufficiently supported by the evidence, and we think they must be held to free the defendant trust company from liability in this form of action, at least. It is true that the orders possess none of the qualities of negotiable paper, and that the holder stands in the shoes of the payee. 1 Dill. Mun. Corp. § 503. Had payment been refused by the county treasurer, and action been brought against the county upon them, all the defenses which could have been urged against the original holder could have been urged against the transferee. But the question here is quite different. The resolution under which the work in question was done was adopted June 5, 1894, and work was at once commenced under it, so that nearly $3,000 worth of highway work had been done on the 3d of August before this suit was commenced. The resolution was public in its nature, the work was also public, and we feel that the neglect in bringing the action until after so much work had been done, and orders issued and negotiated in the hands of innocent third persons, must operate to prevent recovery against such third persons, upon the principle of laches, as laid down in the case of Frederick v. Douglas Co., supra. The plaintiffs have invoked the relief of a court of equity, and they have delayed in so doing until serious injury will result to a party who had no participation in the illegal contract, if the plaintiffs be allow

ed to recover. We are not now discussing the rights or remedies of the county itself, in a proper action brought by its officers to recover funds illegally obtained from the treasury, but simply what a court of equity will do when its aid is invoked by a taxpayer who might have brought his suit earlier, and prevented the mischief, had he chosen to do so. The defendant trust company cannot be held liable in this action. The supervisors who authorized the illegal contracts and expenditures must, however, be held liable, and the auditing and disbursing officers, as well as the contractors and their assignees, to the extent of the amounts received by them, respectively, after the commencement of this action.

As to the defendant Duluth Trust Company, the judgment is affirmed, without costs, except attorney's fees; and, as to the remaining defendants, the judgment is reversed, with costs, and with directions to enter judgment for the plaintiffs in accordance with this opinion.

UNION & PLANTERS' BANK OF MEMPHIS v. JEFFERSON.

(Supreme Court of Wisconsin. Jan. 10, 1899.) ACTION ON NOTES-DEFENSES-MISTAKE OF FACT -WANT OF CONSIDERATION-ESTOPPEL

-COUNTERCLAIM-INSOLVENCY.

1. Under the mistaken belief that a decedent'sestate was solvent, a bank holding notes against him and a deposit in his favor paid the administrator the deposit, which it could have held against the notes, and surrendered decedent's notes in return for notes given by the heirs. Held, that the heirs were estopped to repudiate liability on their notes on the ground of the mistake, or to plead want of consideration.

2. Surrender of a decedent's notes constitutes a sufficient consideration for equivalent notes of his heirs.

3. Where notes of heirs were given in exchange for notes of their decedent, under the supposition that his estate was solvent, they are not entitled to counterclaim moneys paid on their notes, on the ground of mistake as to the solvency, before insolvency is judicially determined.

Appeal from circuit court, Dane county; R. G. Siebecker, Judge.

Action by Union & Planters' Bank of Memphis against Beverly Jefferson. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action upon a draft drawn July 14, 1893, by W. B. Pearson & Co., of Chicago, upon the defendant, Jefferson, for $1,200, payable to the plaintiff, and accepted by the defendant. The answer sets up three defenses: (1) Want of consideration; (2) that it was made under false and fraudulent representations on the part of the plaintiff; (3) that it was made under mutual mistake of fact. There was also a counterclaim seeking to recover $1,768.32, alleged to have been paid by the defendant to the plaintiff under mutual mistake of fact. There was a reply, in substance denying the allegations of the counterclaim. Upon the trial it appeared that one

J. W. Jefferson, a business man of Memphis, Tenn., died in that city June 13, 1892, intestate, leaving the defendant, his brother, of Madison, Wis., and two nephews, W. B. Pearson and F. E. Pearson, of Chicago, his only heirs at law. He owned considerable real estate in Memphis, and also had property in Arkansas, and was supposed by all who had any knowledge of his affairs to be worth from $50,000 to $100,000 above his liabilities. At the time of his death, he was doing business with the plaintiff bank, and was indebted to the bank on three notes,-one for $1,400, dated March 22, 1892, indorsed by D. E. Myers, of Memphis; one dated March 31, 1892, for $1,500, indorsed by Napoleon Hill, of Memphis; one dated March 3, 1892, for $1,200, secured by a deposit of stock of the Tennessee Brick & Manufacturing Company, of the face value of $1,750. He also had a credit deposit in the bank subject to check of $791.06. Within a few days after the death of J. W. Jefferson, the defendant and W. B. Pearson went to Memphis, and spent several days investigating the affairs of the deceased. On the 20th of June, 1892, the defendant was appointed, by the probate court at Memphis, administrator of the estate, and entered on his duties. On the 30th of June, the bank transferred the deposit balance of $791.06 to the account of Beverly Jefferson, administrator. On the 5th of July, following, the defendant and W. B. Pearson gave their own notes to the plaintiff, in place of the notes held by the bank against the deceased. These new notes were discounted by the bank, and the proceeds placed to the credit of Beverly Jefferson, as administrator, who then checked out the old notes. The notes for $1,400 and $1,500 were paid by Jefferson in the fall of 1892, but the note for $1,200 was not paid when due, and remained unpaid until the summer of 1893, when the draft in suit was given in its place. After the giving of the three notes by the defendant and Pearson, the credit balance of $791.06 was all drawn out of the plaintiff bank by the defendant, as administrator. The evidence shows, without dispute, that it was the general understanding in Memphis, which was shared in by the officers of the bank, that J. W. Jefferson, at the time of his death, was a wealthy man, worth somewhere from $50,000 to $100,000. Much of the property which he owned was real estate in Memphis, and all the evidence upon the subject shows that this real estate alone was considered worth considerably more than the amount of the indebtedness of the deceased in June, 1892, but that it declined in value very rapidly after the financial panic of 1893. The debts of the estate were found to be about $30.000, instead of about $20,000, as at first supposed. In 1895 it began to be apparent that the estate would not prove more than sufficient to pay the debts, and proceedings were commenced in chancery to declare the estate insolvent, and sell all of the real estate to pay the debts. In February, 1896, a

dividend of 40 per cent. was declared and paid. It appears that the defendant proved up the claim upon the $1,200 note of J. W. Jefferson, which had been surrendered to him by the bank, and that the dividend of 40 per cent. thereon was allowed, and paid over by Jefferson to the bank. The proof shows, however, that the estate is not yet closed. There is still a large tract of real estate in Arkansas, worth from $3,000 to $5.000, not yet sold. A verdict was directed for the plaintiff for the balance due on the draft after deducting the amount of the 40 per cent. dividend, which, it appears, had been received by the bank; and the defendant appeals.

Morris & Riley and Geo. W. & H. S. Bird, for appellant. Frank E. Parkinson, for respondent.

WINSLOW, J. (after stating the facts). The circuit court rightly directed a verdict for the plaintiff. No defense to the action was proven. Certainly, no fraud on the part of the bank officials was proven. They simply shared in the belief which prevailed in the minds of the business men of Memphis who knew the deceased, including his attorney and intimate friends, that his estate was worth from $50,000 to $100,000 above all his debts. All the evidence tends to show that, had the Memphis property been sold at that time, it would have brought far more than enough to pay all debts, but that it declined greatly in value after the panic of 1893, and finally declined so greatly as to make the estate insolvent. The defendant made his own investigations among real-estate men and all who had knowledge on the subject, as to the condition of the estate and value of its property, and did not rely on any information obtained from the officers of the bank. The claim of fraud is entirely without foundation.

As to the alleged mistake of fact, it may perhaps be doubtful as whether mere mistaken opinions as to the value of real estate can properly be called such mistake of fact as would justify rescission of a contract; but, however this may be, the evidence shows that the defendant is estopped from making this defense. The bank owed J. W. Jefferson at the time of his death, upon deposit account, $791.06. By the law of Tennessee, it was entitled to offset this against the notes of J. W. Jefferson, and prove its claim against the estate for the balance. Shannon's Code Tenn. 1896, § 4114. Instead of doing this, it transferred the deposit balance to the credit of the defendant, as administrator, and after Jefferson and Pearson had given their individual note of July 5, 1892, allowed the defendant, as administrator, to draw the entire sum from the bank. Thus, the bank has lost the benefit of this deposit, which it might have retained and applied; and it is clear that it allowed this balance to be withdrawn by the defendant because he and Pearson had given their own notes for the notes of J. W. Jeffer

son. Certainly, the defendant cannot now repudiate liability upon his note when the bank has thus so materially changed its position in reliance upon the note. It is practically an attempt to rescind a contract, without returning what has been received by virtue of it. As to the defense of lack of consideration, It is sufficient to say that the original note of J. W. Jefferson was canceled and surrendered by the bank when it received the note of the defendant and Pearson, and that this constituted a sufficient consideration. In addition to this, it seems clear that the same facts which estop the defendant from pleading mutual mistake will also estop him from pleading want of consideration.

As to the counterclaim for moneys paid upon the two notes of $1,400 and $1,500, under the mistaken supposition that the estate was solvent, it is perhaps sufficient to say that no such recovery can be had while the estate is still unsettled, a part of its real estate not sold, and before it is judicially determined whether there will be any deficiency of assets to meet liabilities. This conclusion is so apparent that a mere statement of it is sufficient. Judgment affirmed.

1. An elevator used by factory employés was propelled by a cable, fastened to it by being run through grooves in the top frame, over which a clamp was bolted. Through defects in the grooves the cable slipped and the elevator fell, injuring servants of the lessee. The defect was known by the owner, but only by taking off the clamp could it have been discovered by the lessee. Held, that the lessor was liable, the defect being undiscoverable to the lessee from an outside inspection, which was all that was required of him.

2. A complaint for injuries to a servant through the falling of an elevator, which alleges that by reason of the defect the elevator would not sustain the weight ordinarily placed on it, but would drop to the ground, and that the defect was unknown to the servant, is not demurrable as showing that it fell whenever used, and that the defect was therefore known to the servant, the averment meaning that it was liable to fall at any time in the course of the necessary use thereof.

Appeals from superior court, Douglas county; C. Smith, Judge.

Actions by James Anderson and Charles Turnquist, respectively, against Hiram Hayes. From orders overruling demurrers to each complaint, defendant appeals. Affirmed.

These actions are actions for personal injuries, the complaints being identical. General demurrers to each complaint were overruled, and the defendant appeals. The complaint in each case charges that in 1896 the defendant erected an iron-manufacturing shop

in the city of Superior, equipped with the necessary machinery, including a cupola or furnace room, an elevator, and the necessary appliances therefor, the elevator being intended to be used in connection with the furnace for the purpose of carrying ore and employés to the second floor of the building, and that it was necessary in order to operate said furnace that the elevator be so used. That about December 26, 1896, the defendant leased the premises to one Frank Hayes for one year to be used as a foundry and machine shop, and that Frank Hayes thereupon went into possession and operation of said furnace and elevator and continued so in possession thereof until after the injuries of the plaintiff's hereinafter set forth. "That defendant was grossly careless and negligent in the construction and erection of said elevator, and in equipping, adjusting, and putting the same in position for use, and he did carelessly and negligently furnish and supply therefor and equip the same with a clamp which was not adapted for said purpose, and with a steel cable which was to be used for the purpose of holding and hoisting the same, which cable the defendant did negligently, carelessly, and defectively connect therewith, by means of and through an eye or loop on top of said elevator frame, and then brought up back against the same, and there attempt to fasten the same to the cable above the said eye or loop by means of an iron clamp. That said clamp was provided with two grooves through its inside, in which said cable was laid. That the end of said cable was then brought back against said cable, above said eye or loop, and said clamp brought together and bolted fast. That the grooves therein were too large for said cable, and did not secure or hold the same, but permitted it to slip through the said grooves and become detached in the ordinary and usual course of the operation of said elevator. That by reason thereof the same was defective and dangerous, and would not sustain the weight which necessarily, ordinarily, and usually would be placed upon the said elevator, but would permit the said elevator to drop down onto the ground below. That by reason thereof the said elevator was at all times a nuisance, and imminently, necessarily, and highly dangerous to, and it did necessarily endanger, the life and limb of all persons who might be in its vicinity, as well as all persons who might use, or be employed upon, or ride thereon, and the natural and inevitable consequence to all such persons was to expose them to great and imminent danger to life and limb. That defendant did at all times know of its said dangerous condition, and of the imminent danger to which all persons above stated who were engaged thereon or thereabouts would be exposed, and in the exercise of ordinary care and diligence he could have known thereof. Upon information and belief the plaintiff alleges that said Frank Hayes had no knowledge of the defective and dangerous condition of said elevator

and its appliances and fastenings, nor of the actual condition and character thereof, and

thereof were concealed, and could only have been known by the persons putting the same in position in said shop, or upon a subsequent particular inspection and examination thereof. That, notwithstanding this, the defendant did carelessly and negligently lease said premises, including the said furnace room and elevator, to said Frank Hayes, and permit him to use and operate it, as aforesaid, all of which the defendant did with the intention and for the purpose of having said Frank Hayes employ laborers thereon and thereabouts, in its active use, management, and control, as herein before stated, but nevertheless the said defendant did carelessly and negligently fail and omit to inform the said lessee, or the plaintiff, of any of the said defects, or of any dangers to which such persons, in its use, operation, and management, or in and about which they would be employed, would thereby be exposed. That on March 16th, 1897, the plaintiff was in the employ of the said Frank Hayes, working for him for hire, as a laborer in and about the said furnace room and elevator, and thereupon he was required to do, and it became and was his duty, in the regular scope of his employment, to take some material up in and by means of said elevator, and to ride therein up to the top of said cupola. That thereupon plaintiff did, in compliance with said order and his said duties, and within the scope of his employment, place himself and his said materials therein, and thereupon he proceeded with said elevator and its burden upwards, until it had attained a height of about fifteen feet, when, as the direct, natural, and proximate result of defendant's said negligence, wrong and unlawful conduct, as above stated, the end of said cable slipped through said clamp, and said elevator and the load therein, including the plaintiff, fell to the ground below, a distance of about fifteen feet, and caused him the injuries herein complained of. That plaintiff was at all times in the exercise of proper and ordinary care and caution, and in the usual and ordinary use and operation of said elevator, and the same was at all times used in the manner and for the purposes as by the defendant intended, and for which he leased the same. That the aforesaid dangerous and defective condition of said elevator clamp, and the fastenings of said cable thereto and thereby, and the dangerous and insecure manner in which said cable was fastened by means of said clamp, existed at the time of said leasing in December, 1896, and did so continue until after the receipt of said injuries. That said injury might reasonably have been anticipated by the defendant as the natural and probable result under the ordinary circumstances of using said elevator. That plaintiff did not at any time, until after the receipt of said injuries, have any notice, knowledge, or information of any of the said defects, or of

any of the dangers or risks connected with the use of said elevator, but he believed the same to be safe and suitable for said work, and he did not, either in whole or in part, cause or contribute to said injury." The complaint further sets forth the injuries received by the plaintiff, and claims damages.

Ross, Dwyer & Hanitch and Geo. B. Hudnall, for appellant. O'Brien & Vaughn, for respondents.

WINSLOW, J. (after stating the facts). These are actions by the employés of a tenant against the landlord for injuries resulting, as it is claimed, from a concealed defect in the demised premises, known to the landlord, but not known by, nor disclosed to, the tenant, nor capable of being ascertained by the tenant by a reasonably careful examination of the premises. The principle is well settled that a tenant takes leased premises in the condition in which they happen to be when leased, and that the landlord is not liable to the tenant for injuries resulting from lack of repair unless he has contracted to repair, or unless the defect be a concealed one known to the landlord and not disclosed to the tenant and not discoverable by the use of that degree of care which the law demands; and it is equally well settled that an employé, servant, or subtenant of the tenant has no greater rights as against the landlord than the tenant himself. Cole v. McKey, 66 Wis. 500, 29 N. W. 279. The rule is thus stated in Cowen v. Sunderland, 145 Mass. 363, 14 N. E. 117: "Where there are concealed defects attended with danger to the occupant, and which a careful examination would not discover, known to the lessor, the latter is bound to reveal them in order that the lessee may guard against them. While the failure to reveal such facts may not be actual fraud or misrepresentation, it is such negligence as may lay the foundation of an action against the lessor if injury occurs." The rule is also recognized and stated in 2 Wood, Landl. & Ten. § 381, and numerous cases are there cited in its support. We think the allegations of the present complaint bring the case within the rule. concealed defect was in the size of the grooves in the clamp which held the rope above the elevator. It is alleged to have been known to the landlord and not disclosed to the tenant, nor discoverable by him save upon particular inspection and examination. This we take to mean substantially taking the clamp off and examining the size of the groove, because it is evident that mere inspection from outside would not disclose the size of the groove, which was necessarily closed over the rope. We do not think that the rules of reasonable care go so far as to require the taking apart of machinery provided for such a purpose. It is argued that the allegation to the effect that the elevator would not sustain the weight which was ordinarily and usually

The