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she did so she could get out. She was then |ed that there were at least reasonable inferswinging her arms, leaning forward a little ences in respondent's favor as regards whethand apparently preparing to jump. Sudden-er there was actionable negligence, barring ly she pitched forward, apparently head first, contributory negligence.

into the hole and wholly disappeared. earth caved as she went.

The Some of the crust broke down. The cave-in was sufficient to bury the child out of sight, except one lower limb from the knee. When, by excavating, her form was rescued, she was found to be dead. She lay substantially on her back, with her head the lowest and bent forward onto her breast. Her trunk was some 3 feet above the bottom of the hole, while her feet were higher, one limb and foot, as stated, being above the caved-in earth, which reached to within about 2 feet of the surface. Evidence was admitted, without objection, following the allegations of the complaint respecting funeral expenses incurred to the extent of about $69.

The jury found that defendant failed to use ordinary care in respect to the hole; that the girl was free from contributory negligence; that the fault of defendant was the proximate cause of the injury, and that the pecuniary loss to the father, including funeral expense, was $2,071.90. The court refused to allow a recovery in excess of $1,500, but ordered judgment for that amount with costs, at plaintiff's election. That determination was submitted to by plaintiff and judgment was rendered accordingly.

E. D. Minahan, for appellant. Barton & Kay and Chas. W. Fricke, for respondent.

MARSHALL, J. (after stating the facts as above). [1] It is not claimed, with confidence, that there was no jury question respecting actionable fault on the part of defendant. The subject is merely suggested and submitted. It is considered that like brief treatment will suffice here.

Was the child guilty of efficient contributory fault? The argument to sustain the affirmative is based wholly on the theory that she was admonished to step back from the hole and, in face of that, remained and did the thing which led to her death-fell in as she was admonished might be the case, and the cave-in followed.

The chief support of such contention is the claim that the child fell into the excavation before there was breaking down of the surface, and that the disturbance by her person in the hole caused the cave-in. A very ingenious argument on that appears in counsel's brief, but it is far from conclusive. The fact that no part of the child's body was at the bottom of the hole, or very near to it, strongly rebuts the theory that she fell in before there was any caving. Again, the general location of her person further rebuts it. So if it were vital to the case to determine whether the child fell in and the earth then caved, or the giving way of the earth under her feet, or close to them, caused the fall, there was a fair jury question on the evidence.

The claim is made that the evidence shows a clear case of inexcusable carelessness of the child, because she was admonished of the danger of being near the brink of the excavation; Ryan v. La Crosse City R. Co., 108 Wis. 122, 83 N. W. 770, Wills v. Ashland Light, Power & Street Ry. Co., 108 Wis. 255, 84 N. W. 998, and similar cases being relied on. They were grounded upon the principle that children as well as adults are bound to exercise ordinary care for their own safety, to the extent which they may reasonably be expected, under all the circumstances, to know and appreciate perils of personal inThe evidence has been examined. There jury. So it was said, in effect, in the first is no controversy as to what was done and case, that a child, accustomed to street cars left undone by defendant. Is it consistent at the early age of 8 or 9 years, who knows with ordinary care, in view of the known of the liability of one passing on the track at fact that young children, yet old enough any time, especially that one may do so at or to go to school unattended and otherwise near a particular time and knows the to be upon the street, are liable to be near danger of being then on the track-a child excavations, and in view of the common old and intelligent enough to know that to knowledge that such children of little judg-walk upon or so near the track as to be withment are quite likely to be attracted by such in reach of a car, regardless of whether one things, to leave them unguarded, as in this is about to pass, is perilous, who goes under case? It does not seem difficult to answer such circumstances within the pathway of a that. car is guilty of fatal want of ordinary care. It is conceded that it is dangerous for a All the authorities along that line turn upon child to walk around the edge of such a hole. the principle that, as to any given event, a The whole case for appellant is grounded on child is responsible for just such care for his that theory, and that danger was so apparent own safety as may reasonably be expected of that the child, upon being admonished to one of his age, development and intelligence keep away from the hole as there was dan-under the circumstances characterizing the ger of her falling into it, should have known particular event. Klatt v. N. C. Foster Lumand appreciated the risk she took. That de- ber Co., 97 Wis. 641, 73 N. W. 563. fense, under the circumstances, is a confession that appellant created a serious danger by which children, lawfully in the street,

So it follows that, while the principle discussed is fixed in its scope, circumstances so alter cases that the decision in one case does

er further than that the rule of personal re- | in referring to testimony relating to a vital sponsibility for personal safety, within stated general limitations, applies to children as well as adults. To that extent the cases cited by counsel for appellant apply here, but such application, in view of the particular facts, falls far short of showing that deceased was guilty of contributory negligence as a matter of law.

question, did not refer to all of it. We fail to discover the court made any attempt to cite to the jury the details of the evidence. The references thereto were made in most general terms and carried the idea, plainly, that the evidence, and all of it, bearing on the question was to be considered, though those precise terms were not used.

give particular prominence to any part, so as to suggest the weight that should be given thereto. If, in referring to the evidence, any particular material feature is inadvertently omitted and attention is not seasonably called thereto, there is no assignable error in regard to the matter, and no prejudicial error

One fatal difficulty with the position of ap- [4] The court may properly refer to feapellant's counsel is that the child was not ad-tures of the evidence, making no attempt to monished of any danger of the earth she was standing on or near giving way at the surface, as there is evidence, it is thought, from which the jury might reasonably have come to the conclusion was the case. She had full confidence in her ability to walk around the hole without any danger of falling in, and demonstrated her capacity in that respect by jump-in any event, unless it appears that the omising across the hole and preparing to jump back. It was such breaking down of the surface, precipitating her, as it were, into the hole, as the jury may reasonably have concluded, which caused the mischief. She had no warning of such a danger. Whether she ought to have known of it without warning is by no means clear. So the matter was properly submitted to the jury.

sion may, probably, have affected the result unfavorably to the party complaining.

[5] Complaint is made because the funeral expenses were allowed to be considered in determining the damages. No error was committed in that regard. It plainly constituted pecuniary loss of the father, for whose benefit the action was brought. Moreover, whether the trial court in correcting the verdict removed that element does not appear. That may have been the intention.

[2] We note counsel for appellant claims that the element of appreciation of known danger, or appreciation of the danger of [6] There is no complaint as to the amount known situation, does not apply to such a of the verdict on the ground of excessiveness. case as this-that it only applies to where However, to avoid danger of the recovery the relations of master and servant exist. being referred to as a precedent, it seems That is a novel idea and wrong as it is novel. well to say that in cutting down a verdict It applies in many situations involving the as erroneous, and compelling defendant to conduct of persons so young that they can- submit to a reduced amount at the plaintiff's not reasonably be expected to possess sub- election, care should be exercised not to instantially the judgment of adults. When an vade the constitutional right of trial by jury. adult or person of general intelligence of an That is to be avoided, as this court has often adult knows, or ought reasonably to know, held, by fixing the optional amount at the the facts, he is presumed to comprehend and minimum which a jury might rightfully alappreciate danger incident thereto. Not so low on the evidence, instead of the maximum. as to a young child old enough to be charge- Baxter v. Ry. Co., 104 Wis. 307, 335, 80 N. W. able with some degree of care for its own 644; Beach v. Bird & Wells Lumber Co., 135 saftey, but not that of persons generally, or Wis. 550, 560, 116 N. W. 245. The primary even children of its age generally. So while idea, in such a case, is that the verdict of the term "comprehend and appreciate" is con- the jury is prejudicially erroneous, requiring fusing and often out of place in reference to it to be set aside-that the verdict is charthe responsibilities of an adult or experienc-acterized by fatal error. The next idea is ed person, it is proper, and generally nec- to correct the error without a new trial, essary, as to that of such children. True, without prejudice to the constitutional right the law in this regard is more commonly invoked in regard to the relations between master and servant, but the principle of it applies in any situation where the question is vital as to whether a child exercised ordinary care for its own safety.

So it seems that there was a fair question for the jury on the evidence in this case as to whether the deceased knew, or ought, under the circumstances, to have known, and appreciated the danger of the earth caving from under or near her feet and causing her to fall into the hole. Of such an event she had no warning. That it was just such an event which led to her death, the jury may reasonably have concluded from the evidence.

of trial by jury. That is clearly done, as suggested by Mr. Justice Timlin, speaking for the court in the last case cited, by fixing the optional amount as low as a jury, acting within its province, could be reasonably expected to place it. The trial court, as seen by the opinion, put the amount here somewhat more than the maximum a jury would be permitted to place it, and failed to take note of the fact that a sum paid presently is much greater, in the practical sense, than a like sum paid years in the future. These observations are made, as before indicated, to guard against the course followed being referred to by or in trial courts as a guide. [7] Whatever prejudice, if any, there was to

because the question in respect to the matter was not saved for review. Moreover, no assignment of error was made in respect to it. The judgment is affirmed.

HOUNCHIN v. SALYARDS et al.

SAME v. MEREDITH et al. (Supreme Court of Iowa. Oct. 20, 1911.) 1. ASSIGNMENTS (§ 19*)-CONTRACT TO CONVEY-SUBSTITUTION OF OBLIGORS.

A vendor need not accept a mortgage from the purchaser's transferee, in satisfaction of the purchaser's obligation to give a mortgage, in the absence of acquiescence in the arrangement. [Ed. Note.-For other cases, see Assignments, Cent. Dig. §§ 28-31; Dec. Dig. § 19.*] 2. VENDOR AND PURCHASER (§ 312*)-BREACH BY PURCHASER-TIME FOR SUIT.

If a contract purchaser disables himself from performing, he may be sued for the breach before the day of performance.

[Ed. Note.-For other cases, see Vendor and Purchaser, Dec. Dig. § 312.*]

3. VENDOR AND PURCHASER (§ 308*)-RECOV

ERY OF PRICE-DEFECTIVE TITLE.

A contract purchaser cannot retain possession, and at the same time defeat recovery of the price on the ground of defective title.

[Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. §§ 889-891; Dec. Dig. § 308.*]

4. QUIETING TITLE (§ 10*)-WHO MAY SUE.

Under Code § 4223, authorizing suit to quiet title by any one interested, a contract vendor can sue, though he has conveyed under warranty, where payment of part of the price is deferred until perfection of title; but where liability on the warranty has been avoided, and the vendor has recovered judgment for the deferred payment, he has no interest entitling him to quiet title.

life estate in the other two-thirds, and after her death an undivided one-half would pass to the nearest heirs of her deceased husband, and the other undivided one-half to the nearest heirs of herself. Norris v. McGaffick, 21 Iowa, 201. Her father, Jabez Ward, would have been the widow's nearest heir, had she then died, and, as the husband's parents were dead, his brothers, Thomas J. and William G. Meredith, and his sister, Margaret G. Miller, were his nearest heirs. Jabez Ward quitclaimed an interest he then had in the land to the widow in 1865, and thereupon she instituted an action in partition against William G. Meredith, and a decree was entered setting apart to her absolutely the S. E. 4 S. W. 4 of the section and a life estate in the N. E. 4 S. W. 4 thereof. Subsequently, in 1875, she executed to William G. a quitclaim deed to the north 40 acres and a warranty deed to the south 40. The grantee, William G. Meredith, died testate in 1878, devising the 80 to his son, Samuel Lucien Meredith, who, in 1894, conveyed it by warranty deed to N. C. Scott, and it was by him transferred in the same way to Thomas Laird on the same day, by Laird to M. D. Coombs in 1896, and by Coombs to plaintiff, J. W. Hounchin, in 1900. The evidence leaves no doubt but that, since the conveyance to Scott, until sold by Hounchin in 1908, 14 to 15 years, the possession was adverse, if this were possible, as against those entitled to the remainder. Another conveyance by quitclaim deed should be mentioned-that of Thomas J. Meredith and Margaret G. Miller, brother

[Ed. Note. For other cases, see Quieting Ti- and sister of Joseph B. Meredith, to R. M. tle, Dec. Dig. § 10.*]

Meredith, the wife of E. W. Meredith, a son

Appeals from District Court, Taylor Coun- of William G., deceased. ty; H. K. Evans, Judge.

In the first of the entitled actions recovery for unpaid purchase price of 80 acres of land was sought, and in the second the relief prayed was that title thereto be quieted in plaintiff. The suits were heard together on the same evidence, but separate decrees entered. The decree in the first was as prayed, and in the second the petition was dismissed. The defendants in the first and the plaintiff in the second appeal. Affirmed. G. B. Haddock, for plaintiff. McCoun & Burrell and Wm. Jackson, for defendants.

On January 2, 1908, J. W. Hounchin negotiated a sale to J. H. and Eudura Salyards, agreeing to sell the land to them "for the consideration of $62.50 per acre, to be paid as follows: $200 paid cash in hand, the receipt of which is hereby acknowledged; a promissory note for $100 due March 4, 1908, without interest; $900 to be paid on March 4, 1908. Party of the second part agrees to assume and pay a certain first mortgage loan of $2,000 now on said farm, and party of the first part agrees to loan to party of the second part $1,800 of the purchase price for a term of seven years, from March 1, 1908, at 6 per cent. interest, payable annually on March 1st each year, on the terms of $200 being payable on each interest pay date, with the option of paying any amount in excess of $200. When party of the second part has completed the agreements herein contained, party of the first part agrees to deliver to the party of the second part his warranty deed, and complete and perfect abstract of title for said land, and give possession of said farm on same date. Telephone

LADD, J. The subject in dispute is 80 acres of land. It appears that Joseph B. and William G. Meredith acquired a quarter section in Taylor county in 1858, and that the former died in 1861, leaving him surviving a widow, Nahama G. Meredith, and an only child bearing his father's name. Under the law then in force the widow was entitled to a life estate in one-third, and the child the remainder and the other two-thirds. He died within a year, and the widow took a

and telephone share are a part consideration | ond party herein, for herself and assigns, of the above farm." agrees that said mortgage shall be executed

ment; and that the said J. H. Salyards shall be held harmless, and relieved of all further responsibility, because of any provisions therein contained. And the second party hereby assumes said contract and amendment thereto, together with all the obligations therein cast upon the said J. H. Salyards. It is also understood that the Farmers' Telephone, and the shares of stock accompany the same, shall pass with the premises hereintofore described."

Being aware that his title might prove as provided in said contract and amenddefective, Hounchin began the suit to quiet title a few days later; but, as this had not been heard, on March 4th following, the parties entered into a supplementary contract, in which they agreed "that the making and executing of one certain mortgage of $1,800" on the land in favor of plaintiff by the Salyards, to run from March 1, 1908, to March 1, 1915, at 6 per cent. interest, payable annually, of which principal $200 shall be paid on March 1st each year, with the option of paying any additional amounts on said date, shall be postponed until party of the first part shall, at his own expense, procure a complete and perfect abstract of title to the above said land; the title thereto now being in the courts of Taylor county, Iowa, for quieting. At that time, and as a part of the same transaction, Salyards paid plaintiff the $900 then due, and plaintiff executed to Salyards and wife a conveyance of the land by warranty deed; the grantees assuming the payment of an existing mortgage thereon of $2,000. The grantees immediately went into possession, and on November 12th of the same year entered into a contract of sale with Ethel Hounchin, by the terms of which they undertook to sell the land to her for $65 per acre, paying $200, and agreeing to pay $1,200 March 1, 1909, assume the payment of the existing mortgage, and take care of the $1,800 deferred payment as stipulated:

"Possession of said land is to be given on March 1, 1909, at which time the said J. H. Salyards and Eudura Salyards agree to execute and deliver to the said Ethel Hounchin their good and sufficient quitclaim deed conveying said premises. The first parties further agree the title to said premises shall be in as good condition on March 1, A. D. 1909, as it now is. It is further understood by all the parties hereto that the said J. H. Salyards purchased said land from one J. W. Hounchin, and that he entered into a contract in relation thereto with the said J. W. Hounchin, which contract was thereafter amended as heretofore stated; that as a part of said contract the said J. H. Salyards agreed to execute and deliver to the said J. W. Hounchin a mortgage on said premises for $1,800, the same to be second to the mortgage for $2,000 now on said premises; but it was agreed that the execution of said mortgage was to be postponed until the first party therein, viz., the said J. W. Hounchin, should at his own expense procure a complete and perfect title to said land; that he has not done so up to the present time; that if the said J. W. Hounchin should comply with his said contract, he should be entitled to have the owner of the land execute and deliver to him a mortgage for $1,800, second to the one already thereon for $2,000, and in that case the sec

On March 1, 1909, the $1,200 was paid, and Salyards and wife signed and acknowledged two quitclaim deeds, one to Ethel Hounchin as grantee, and the other to Clarence Edwin Meredith, and delivered them to E. W. Meredith. It appears that the latter had negotiated the purchase, and paid the price, and that he caused the deeds to be so made with a view of future delivery of the last mentioned to his son, if his deportment pleased, but, if not, then of delivering the one running to Ethel Hounchin (his daughter), to hold in the land in trust. The deeds remain in his possession.

Such is the record on which the plaintiff demands in the one action that title be quieted in him against R. M. and E. W. Meredith and Ethel Hounchin, and in the other that he have judgment against J. H. and Eudura Salyards for the deferred payment of $1,800, and that this be established as lien on the land as against any interest Ethel Hounchin and Clarence Edwin Meredith may have acquired. We shall dispose of the last-mentioned case first.

Action for Purchase Price.

[1] I. In their answers in the action for the recovery of the deferred payment of $1,800, the defendants plead the defective condition of the will by reciting the facts as heretofore stated, but make no tender of a conveyance of the land, nor demand the cancellation of the obligation to pay. In effect, the answer is a plea in abatement, relating that, as a condition precedent to recovery, title must be perfected in plaintiff. Had the Salyards retained the land, there might have been some ground for insisting upon the terms of the contract by which the execution of the mortgage of $1,800 "shall be postponed until party of the first part shall, at his own expense, procure a complete and perfect abstract of title." But, as seen, they had sold and conveyed the land by quitclaim deeds, with the stipulation that they be kept from harm, and thereby rendered themselves powerless to perform their part of the contract; that is, to execute the mortgage. That their grantee promised to do so affords no excuse. This was not binding on the plaintiff. He in no manner consented or acquiesced in such an arrangement, and, this being so, was not required to accept the ob

ligation of Ethel Hounchin or of any one else! price agreed to be paid." The principle is in lieu of that of J. W. and Eudura Salyards. well stated in McIndoe v. Morman, 26 Wis. Rappleye v. Racine Seeder Co., 79 Iowa, 227, 588, 7 Am. Rep. 96: "The remedy of the 44 N. W. 363, 7 L. R. A. 139; Worden v. Ry., purchaser, where the title of the vendor fails, 82 Iowa, 735, 48 N. W. 71. "Contracts where- or he is unable to make conveyance as stipuby one party agrees to extend credit to the lated by the contract, is to rescind the conother cannot be arranged by such other so as tract, or offer to, and to restore the posto require it to be extended to the assignee." session, in which case he may recover the 3 Page on Contracts, 1941. purchase money advanced and the interest, [2] But it is insisted that, even though together with the value of his improvements, the Salyards might not execute the mortgage, deducting therefrom such sum as the use of they were not disabled from paying the mon- the premises may have reasonably been ey. They were to pay $200 "on each inter- worth; and, if necessary for his protection, est pay date, with the option of paying any the court will also provide by the judgment amount in excess of $200." As the interest that the possession be not surrendered until was to be paid annually, this option might the amount so recovered shall have been paid not be exercised until a year subsequent to or otherwise secured to his satisfaction. If, the execution of the mortgage. The addition- on the other hand, the purchaser chooses not al contract does not obviate this conclu- to rescind, but to retain possession under sion, though fixing the date of the mortgage and time for the payment of the interest and $200 yearly, and allowing more than this to be paid if tendered on the day named. Unless the title were perfected on that particular day of the year-that is, March 1stthe obligation was to execute a mortgage with certain conditions, and as to every other day there was a clear breach of the condition of the contract on the part of the Salyards. Having disabled themselves for performance, they are not in a situation to in-Leod v. Barnum, 131 Cal. 605, 63 Pac. 924; sist that the action is premature. If a party disables himself from performing his contract, he may be sued as for a breach thereof before the day of performance arrives. Crabtree v. Messersmith, 19 Iowa, 179; Jewett v. Brooks, 134 Mass. 505; Taylor v. Bradley, 39 N. Y. 129, 100 Am. Dec. 415; Short v. Stone, 8 Q. B. 358; Lee v. Pennington, 7 Ill. App. 247.

the contract, he can do so only upon condition that he pays the purchase money and interest according to the contract. In the latter case, or rather, when the purchaser does not elect to rescind, it is considered that he is willing to receive such title as the vendor is able to give, and content with the personal responsibility of the vendor upon his covenants in case the title actually fails and he is afterwards dispossessed." See, also, as announcing like conclusions, Mc

Sanderlin v. Willis, 94 Ga. 171, 21 S. E. 291; Wyatt v. Garlington, 56 Ala. 576; Dahl v. Stakke, 12 N. D. 325, 96 N. W. 353; Helvenstein v. Higgason, 35 Ala. 259; Dunn v. Mills, 70 Kan. 656, 79 Pac. 146, 502.

Suit to Quiet Title.

As the Salyards disabled themselves to perform and did not tender possession, the court rightly entered judgment against them for the amount of the deferred payment, with [3] The suit then cannot be said to have interest, and established the judgment as a been premature. But, as seen, the plaintiff lien on any interest they acquired under the had not perfected his title, for the reason plaintiff's conveyance to them. It follows that the widow of Joseph B. Meredith was that the decree in this action for the recov still living, and, of course, her heirs, enti-ery of the purchase money must be and is aftled to take an undivided half interest in the firmed. premises, might not be ascertained until her death. Conceding this, however, it does not follow that the Salyards can retain the land and refuse payment of the balance of the purchase price. The law will not permit the purchaser to obtain possession under contract or deed, and, without returning the property, defend against an action for the purchase money upon the ground of the title being defective. If this were permissible, he might retain it indefinitely, and, although enjoying the possession and use undisturbed, deprive the vendor of the consideration. As said in Harvey v. Morris, 63 Mo. 475: "Where a purchaser of land, by virtue of the contract of purchase, is put in possession of the land, he cannot resist the payment of the purchase price without offering to restore the possession thus acquired by him to the vendor. He cannot be permitted to occupy, possess, and enjoy the profits of the land, and

[4] II. The circumstance that plaintiff did not retain title, but had conveyed the land to the Salyards by warranty deed with the usual covenants, would not alone defeat his right to maintain the action to quiet title. Section 4223 of the Code provides that "an action to determine and quiet the title of real property may be brought by any one, whether in or out of possession, having or claiming an interest therein, against any person claiming title thereto, though not in possession." This statute enlarges, but does not limit, the jurisdiction of courts of equity in such cases (Wehrman v. Conklin, 155 U. S. 314, 15 Sup. Ct. 129, 39 L. Ed. 167); and, though there may be authorities to the contrary, the more recent decisions hold that, where the payment of a part of the purchase price has been deferred until title shall be

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