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the plaintiff's experience he ought or ought not to have done. The timber was to be moved as it was piled, and the danger that one of the sticks might fall was, we think, an obvious risk incident to the employment and as such was assumed by the plaintiff. See Campbell v. Dearborn, 175 Mass. 183, 55 N. E. 1042; Allard v. Hildreth, 173 Mass. 26, 52 N. E. 1061; Thompson v. Norman Paper Co., 169 Mass. 416, 48 N. E. 757; De Lisle v. Ward, 168 Mass. 579, 47 N. E. 436; Lothrop v. Fitchburg R. R. Co., 150 Mass. 423, 23 N. E. 227.
(192 Mass. 223) KOPPEL V. MASSACHUSETTS BRICK CO. (Supreme Judicial Court of Massachusetts.
Franklin. June 18, 1906.) 1. TRIAL SUBMISSION OF CAUSE — AGREED STATEMENT
OF FACTS INFERENCES BY COURT.
Where an action is submitted on an agreed statement of facts, in the absence of a stipulation that inferences may be drawn from the facts stated, the question is whether the facts actually stated establish the plaintiff's case; the court not being authorized to draw in ferences either for or against plaintiff.
[Ed. Note.For cases in point, see vol. 46, Cent. Dig. Trial, § 880.] 2. CORPORATIONS—CONTRACT_VALIDITY.
Where one ordered articles and they were charged to him three months before the organization of a corporation, though in contemplation of its incorporation, the corporation to which the articles were transferred is not liable therefor, in the absence of elements constituting a sufficient foundation for a new contract.
[Ed. Note.-For cases in point, see vol. 12, Cent. Dig. Corporations, § 1789.]
Appeal from Superior Court, Franklin County.
Action on a contract by Arthur Koppel against the Massachusetts Brick Company, to recover for goods and materials ordered of plaintiff on December 30, 1901, by one Welch, by whom they were transferred to the defendant on its incorporation, and for goods ordered by Welch as agent of the corporation after incorporation. From the judgment, plaintiff appeals. Affirmed.
Dana Malone, for appellant. John E. Crowley, for appellee.
may be drawn from the facts stated, the question is whether the matters agreed upon establish the plaintiff's case. Neither the superior court nor this court can draw inferences of fact either for or against the plaintifr. Schwarz v. Boston, 151 Mass. 226, 24 N. E. 41; Mayhew v. Durfee, 138 Mass. 584.
In this case the disputed items of the account are for articles ordered by one Welch and charged to him by the plaintiff. Afterwards a suit was brought against Welch by the plaintiff, to recover the price of them, and on his payment of $1,000 to the plaintiff, a settlement was made and Welch was given a release of all demands, without prejudice to the plaintiff's claim against this defendant. The defendant corporation was not in existence when the order for these articles was given, nor for nearly three months afterwards, and it was not authorized to do business under Rev. Laws, c. 110, $$ 43, 44, until the expiration of nearly a month after its certificate of incorporation was issued, and more than two weeks after the last of the articles had been delivered to Welch.
Even if Welch had assumed to act for a corporation which was then expected to be formed, which does not appear in the statement of facts, and if the corporation had attempted to ratify his act as its agent, it could not have made the orginal contract binding upon it without introducing into the transaction such elements as would be a sufficient foundation for a new contract. Penn Match Company v. Hapgood, 141 Mass. 145, 7 N. E. 22; Abbott v. Hapgood, 150 Mass. 248-252, 22 N. E. 907, 5 L. R. A. 586, 15 Am. St. Rep. 193; Holyoke Envelope Company v. United States Envelope Company, 182 Mass. 171, 65 N. E. 54.
In this case nothing is stated which has any tendency to connect the defendant with the sale of these goods by the plaintiff. We have only the fact "that after incorporation the property came into the possession of the defendant by a transfer from Welch," which, so far as it shows anything, indicates a sale by Welch to the defendant.
(191 Mass. 487) MAGNOLIA METAL CO. v. GALE. (Supreme Judicial Court of Massachusetts.
Suffolk. May 17, 1906.) 1. APPEAL-EXCLUSION OF EVIDENCE-RECORD.
The sustaining of an objection to a question asked of a witness will not be reviewed on appeal, where the bill of exceptions contains nothing to indicate the character of the expected answer.
[Ed. Note.--For cases in point, see vol. 3, Cent. Dig. Appeal and Error, 8 2905.) . DAMAGES-BREACH OF CONTRACT–INSTRUCTIONS-REQUEST TO CHARGE.
In an action for breach of a contract, a request to charge that, in estimating damages sustained by plaintiff, a reasonable deduction should be made for the less time plaintiff was engaged after the breach, was covered by an instruction that defendant was entitled to have
KNOWLTON, C. J. This is an appeal by the plaintiff from a judgment of the superior court upon an agreed statement of facts, for a sum less than that claimed by him in his declaration. The defendant did not appeal, but says in its brief that “there is no error of law shown by the record.” We therefore have no occasion to consider the last part of the account, on which the finding was for the plaintiff.
Upon a submission of an action on an agreed statement of facts, the decision is to be made upon the facts actually stated. In the absence of a stipulation that inferences
the expenses which plaintiff would have been subjected to in carrying out the contract deducted from the profit which would have accrued to plaintiff by the completion of the contract. 3. TRIAL-INSTRUCTIONS APPLICABILITY TO EVIDENCE-DAMAGES.
Where, in an action for breach of contract, there was no evidence that plaintiff had been saved any trouble, risk, or responsibility by defendant's breach of contract, a requested instruction that a reasonable deduction should be made from the damages plaintiff would otherwise be entitled to recover for such release from care, etc., attending the execution of the contract, was properly refused.
Exceptions from Superior Court, Suffolk County; John Lathrop, Judge.
Action by the Magnolia Metal Company against George W. Gale. A verdict was rendered in favor of plaintiff, and defendant brings exceptions. Overruled.
A. S. Bacon, I. R. Clark, and G. F. Ordway, for plaintiff. Geo. F. Piper and Walter H. Thorpe, for defendant.
As to the part of the instruction requested which relates to the "release from care, trouble, risk and responsibility attending the execution of the contract," there was no evidence in the case which would have justified such an instruction. If the contract had been of a kind in which these matters could have been considered as elements of damage, the plaintiff well might have contended, upon the evidence, that its care, trouble, risk and responsibility were greatly increased by the continuous wrongful conduct of the defendant and his associates in breaking the contract.
KNOWLTON, C. J. The trial in which these exceptions were taken was confined to an assessment of damages. The first exception is to the exclusion of the testimony of a witness called by the defendant, who said that he was formerly employed by the plaintiff, and that, in the beginning, he had some conversation with the plaintiff's managing agent in regard to the sale of magnolia metal. He was asked to state the conversation, and upon objection by the plaintiff the question was excluded. There is nothing in the bill of exceptions to indicate what the conversation was, or that there was anything in it which would have been favorable to the defendant in the trial of the case. The record calls for the application of the familiar rule that an exception cannot be sustained, unless it appears, not only that the ruling objected to was erroneous, but also that the plaintiff was injured thereby. Mosseau v. Landy, 177 Mass. 104, 58 N. E. 182; Com. v. Smith, 163 Mass. 411, 429, 40 N. E. 189.
The only other exception argued is to the refusal of the court to instruct the jury that, "In estimating the damages sustained by the plaintiff, a reasonable deduction should be made for the less time engaged, and the release from care, trouble, risk and responsibility attending the full execution of the contract by the plaintiff.” So far as there was any saving of expense to the plaintiff from the less time engaged, that was covered by the instruction given, in accordance with the decision in Magnolia Metal Co. v. Gale, 189 Mass. 124, 75 N. E. 219, that the defendant "was entitled to have deducted from the profit which would have accrued to the plaintiff the expenses which the plaintiff would have been subjected to in carrying out the provisions of the contract on its part, during the period that the contract would have been in force if there had been no breach."
(192 Mass. 150) REYNOLDS v. SUPREME COUNCIL
ROYAL ARCANUM. (Supreme Judicial Court of Massachusetts.
Suffolk. May 17, 1906.) 1. INSURANCE-MUTUAL BENEFIT SOCIETIES
CHANGE OF PLAN-INCREASED ASSESSMENTS -AUTHORITY.
Rev. Laws, c. 125, $ 6, and Id. c. 119, § 2, authorize mutual benefit societies organized thereunder to adopt by-laws declaring the manner in which the purposes of its incorporation may be accomplished and to prescribe the assessments and benefits in case of disability or death and the conditions under which the same shall be paid, the method of amendment of the bylaws and such other provisions as the corporation may determine. Section 6 declares that the corporation may make provision for the payment of benefits in case of death or disability or both, the funds for which shall be derived only from assessments collected from members which shall be as required in the by-laws of the corporation. Held, that where a society incorporated under such act was founded on a plan which would ultimately result in its inability to pay certificates issued, it was authorized by such sections to so amend its bylaws as to increase its benefit assessments to an amount equal to the cost of insurance. 2. SAME-CLASSIFICATION OF MEMBERS.
The classification of the members of the society according to age in determining the rates that different members should pay for death benefits in the association was proper. 3. SAME-CHANGE OF ASSESSMENTS-VIOLATION OF CONTRACT.
Where every member of a mutual benefit society at the time of joining the same entered into an express agreement to conform to and abide by the constitution, laws, rules, and usages of the council and order then in force or which might thereafter be adopted and the certificates of the society promised payment of death benefits only on condition that the member complied with the laws, rules and regulations governing the council and fund or that might thereafter be enacted by the Supreme Council to govern the said council and fund, etc., by-laws subsequently adopted by the Supreme Council changing the society's plan and adopting an increased graduated benefit assessment schedule sufficient to cover the cost of insurance did not constitute a violation of the Then existing contracts of members.
Case Reserved from Supreme Judicial Court, Suffolk County.
Bill by one Reynolds against the Supreme Council of the Royal Arcanum. Case reserved for full court. Bill dismissed.
Moorfield Storey and John P. Leahy, for thought that the increase would provide for plaintiff. John Haskell Butler and Curtis the future payments called for by the certifiH. Waterman, for defendant.
cates, and that an adequate emergency fund
would be created from this income. Under KNOWLTON, C. J. This is a bill in equity these amendments there was a surplus in 1898 to set aside certain changes in the defendant's
from the excess of receipts above payments by-laws which affect the rights of certificate amounting to more than $455,000, and afterholders. The defendant is a fraternal bene- wards there was annually a steadily diminficiary association, organized under the laws ishing surplus from the same cause to and of Massachusetts in 1877, and now subject to including the year 1903. In the year 1904 the the provisions of Rev. Laws, c. 119, and the payments exceeded the receipts, and there acts in amendment thereof. The plaintiffs was a deficit of $270,540.50. are certificate holders, who bring this bill Prior to the session of the Supreme Counfor themselves and in behalf of others. From cil in May, 1905, the executive committee the time of its organization the defendant caused mortality tables of the order to be issued certificates to members, agreeing to prepared, and made extended investigations pay to a designated beneficiary a sum not ex
and studies with the aid of competent acceeding a certain number of dollars on the tuaries, to devise some method, through a death of the member, upon compliance by change of by-laws, which should enable the him with certain conditions therein stated. corporation to meet its obligations to memThe by-laws provided that the death benefit bers. The actuaries prepared for them new should be for a definite amount, and pay- tables, each the mathematical equivalent of iments of these definite amounts have always the others, the first being the regular rates, been made. The words "not exceeding” are and three others optional alternatives. These inserted in the certificate to meet the possibil- were founded upon the payment by the order ity of a single full assessment not being equal of the maximum value of each certificate, and to the amount stated. This limitation of the the payment by the member of a rate adepayment to the amount of an assessment, ex- quate, without further modification or adcept when there is an emergency fund, was ditional assesssment, to pay the certificate expressly called for by St. 1899, p. 471, c. 442, at the maturity thereof. It is agreed that $ 11, which is now found in Rev. Laws, c. 119, "competent actuaries would testify, and the $ 6. Until 1898 the assessments paid by mem- case may be taken as though they had testifibers, from which the death benefits were ed, that the old plan of assessments was derived, were certain sums dependent upon faulty, according to the assumptions made by the age of the member at the time of receiy- the actuaries, and that the order could not ing his certificate, which sums remained the meet the maximum face of its certificates unsame as the years went by. These sums were der it; that upon their assumptions a change paid to meet assessments as members died, was expedient or necessary; that the plans and the amount for the first year would proposed and adopted were mathematically equal the cost to the corporation of the insur- correct; that if the members paid the ance of these members. But as the members amounts fixed in these tables the order could grew older the risk of their death increased, continue to pay the maximum face value of and as their payments remained constant, its certificates at their maturity; that such and as there was at no time a payment of amounts are no higher than necessary for any surplus beyond the amount required to this purpose, and that they fairly and equimeet losses, the payments by members of tably apportion among the members their long standing were not nearly enough to contributions to the widows' and orphans' equal the cost of their insurance to the cor- benefit fund, taking into consideration their poration. So the only way in which the age and risk.” “The plaintiffs do not conamounts required to meet losses could be ob- trovert this evidence in this case, but reserve tained was from the payments made by new the right to discuss its materiality, the basis members.
and theories upon which it rests, and its apIn 1898 the by-laws were amended so as plication to this case.” On January 1, 1905, largely to increase the payments to be made the members of the corporation were 305,083 by all members, and to require the payments in number, and they held benefit certificates monthly. These amendments went into ef- amounting to $680,848,000. fect on August 1, 1898, and it appears by the Under these conditions the changes recomagreed facts that no objection thereto has mended by the actuaries were adopted by an ever been made by any member of the order. amendment of the by-laws by an almost These payments, while much larger than unanimous vote of the members of the Suthose required by the original by-laws, were preme Council, and the question is whether upon the same relative basis; that is, the in- the changes are legal and binding upon the crease upon all was in the same proportion, members. and they were all determined by the age of From facts agreed it is plain that a great the member when he received his certificate, corporation, managing and controlling imand were not to be afterwards changed as a portant financial interests for hundreds of member grew older.
thousands of families, was conducting its When these amendments were made it was business upon unsound principles, which, if
followed without change, would ultimately a commercial enterprise. It is a charitable lead to financial ruin. The first question is, and benevolent organization, with a limitawas the change adopted in excess of the de- tion of membership to a special class, and a fendant's corporate powers, or in violation limitation upon the choice of beneficiaries. of the statute governing such corporations? It is not allowed to employ paid agents in The statutes authorize the adoption of by- soliciting or procuring business, except withlaws declaring "the manner in which *
in very narrow limits prescribed by the statthe purposes of its incorporation may be ac- utes. Rev. Laws, c. 119, $ 16. Looking to complished.” Rev. Laws, c. 125, § 6; Id., C. the nature and purposes of fraternal bene119, 8 2. These by-laws may prescribe the ficiary corporations, we see nothing in the "assessments and benefits in case of dis- amendments at variance with the laws. ability or death, and the conditions upon cannot have been intended that such corwhich the same shall be paid, * * the
porations should be limited to a method of method of the amendment of the by-laws, and assessment that would be sure to bring about such other provisions as the corporation may their early dissolution. determine." Rev. Laws, c. 119, § 2. Such a Another question is whether the amendcorporation "may make provisions for the ments are in violation of the contract rights payment of benefits in case of death or dis- of members. It is stated in the record that ability or both. The funds from which the "the agreements between the plaintiff and payment of such benefits shall be made shall the defendant concerning assessments and be derived only from assessments collected benefits are not contained in any one specific from the members. * * * Such provisions, instrument, but are found in the application funds, assessments, and payments shall be as for membership, the benefit certificate, the required in the by-laws of the corporation." laws of Massachusetts constituting the charRev. Laws, c. 119, $ 6.
ter and the constitution and laws of the Plainly the statute contemplates that such order.” If there were no express stipulation corporations shall have power to establish in regard to the by-laws in the application by their by-laws a system of giving death for membership or in the certificates, all benefits which shall be sound and equitable, members of such a corporation would be and founded on principles which can reason- bound by by-laws regularly made or amendably be expected to furnish proper security ed. Durfee v. Old Colony, etc., R. .R. Co., for the performance of their contracts with 5 Allen, 230, 242; Pain v. Societe St. Jean members. The power to make proper changes Baptiste, 172 Mass. 319, 52 N. E. 502, 70 Am. in these particulars by amendment of the by- St. Rep. 287; Oliver v. Hopkins, 144 Mass. laws from time to time is expressly given. 175, 10 N. E. 776; Spilman v. Supreme Coun
There is no ground for the contention that cil Home Circle, 157 Mass. 128, 31 N. E. 776; it is a violation of the statute or of the de- Wright v. Minn. Mutual Life Ins. Co., 193 U fendant's chartered rights to provide for S. 657, 24 Sup. Ct. 549, 48 L. Ed. 832; Susuch assessments as will be likely to insure preme Lodge Knights of Pythias v. Knight, the payment of the sums named in the 117 Ind. 489, 20 N. E. 479, 3 L. R. A. 409. certificates. The statute expressly authorizes, Every member of this corporation, at the not only a death fund amounting to three time of joining it, enters into an express full assessments upon the members, but also agreement to "conform to and abide by the the accumulation of an emergency fund constitution, laws, rules and usages of the amounting to 5 per cent. upon the face value said council and order, now in force or which of all outstanding benefit certificates. The may hereafter be adopted by the same." emergency fund is to be invested in safe The certificates promise payment only on securities, and all of these are to be deposited condition that the member complies "with with the treasurer of the commonwealth. the laws, rules and regulations now governRev. Laws, c. 119, 8 7. As the promise to pay ing the said council and fund, or that may the beneficiary is binding upon the corpora- hereafter be enacted by the Supreme Council tion, it ought to make adequate provision to to govern the said .council and fund," etc. obtain the means of payment. Newall v. Here in the contract is full authority to American Legion of Honor, 181 Mass. 111, amend the laws, rules and regulations. 63 N. E. 1.
In regard to a similar provision under The objection that the amendments are il- which a mutual fire insurance company legal by reason of the division of the mem- changed its by-laws, so as to increase the bers into classes cannot prevail. There is no assessments upon certain policy holders, the objection to a classification of members ac- Supreme Court of the United States uses this cording to age, and it would be unjust to language: "The liability of members of this disregard age in determining the rates that institution is of a twofold nature. It results different persons shall pay for death benefits both from an obligation to conform to laws in an association of this kind.
of their own making as members of the body The distinctive features of such organiza- politic and from a particular assumption or tions remain since the adoption of the amend- declaration which every individual signs on ments as well as before. The fraternal plan, becoming a member. The latter is remarkawith mutuality and without profit, distin- bly comprehensive. “We will abide by, obguishes the work of such an association from serve and adhere to the constitution, rules
and regulations which are already established or may hereafter be established by a majority of the assured
or which are or may hereafter be established by the president and directors of the society.' As to what is contended to be a material alteration in their charter, we consider it merely as a new arrangement or distribution of their funds, and whether just or unjust, reasonable or unreasonable, beneficial or otherwise, to all concerned, was certainly a mere matter of speculation proper for the consideration of the society, and which no individual is at liberty to complain of, as he is bound to consider it as his own individual act. Every member, in fact, stands in the peculiar situation of being party on both sides, insurer and insured. Certainly the general submission which they have signed will cover their liability to submit to this alteration.” Korn v. Mutual Assurance Co., 6 Cranch, 192, 3 L. Ed. 195. This part of the present case is covered in principle by the decisions of this court in Messer v. Grand Lodge, 180 Mass, 321, 62 N. E. 232, and Pain v. Societe St. Jean Baptiste, 172 Mass. 319, 52 N. E. 502, 70 Am. St. Rep. 287, in which cases changes similar to those made by the defendant were upheld under like contracts. The same general doctrine has been stated in many cases in other courts. Wright v. Minn. Mutual Life Ins. Co., 193 U. S. 657, 24 Sup. Ct. 549, 48 L. Ed. 832; Fullenwider v. Supreme Council Royal League, 73 Ill. App. 321; S. c. 1S0 Ill. 621, 54 N. E. 485, 72 Am. St. Rep. 239; Bartram v. Supreme Council Royal Arcanum, 6 Ont. W. R. 404; Gaines v. Supreme Council Royal Arcanum (C. C.) 140 Fed. 978; Fugure v. Society St. Joseph, 46 Vt. 362; Supreme Lodge Knights of Pythias v. Knight, 117 Ind. 489, 20 N. E. 479, 3 L. R. A. 409; Haydel V. Mutual Reserve Fund Life Ass'n, 104 Fed. 718, 44 C. O. A. 169; Gant v. Same (C. C.) 121 Fed. 403, 409; Richmond v. Supreme Lodge Order of Protection, 100 Mo. App. 8, 71 S. W. 736; Barbot v. Mutual Reserve Fund Life Ass'n, 100 Ga. 681, 28 S. E. 498; Mutual Reserve Fund Life Ass'n v. Taylor, 99 Va. 208, 37 S. E. 854.
There are many cases in which it is held that the amount expressly promised to be paid in a certificate like those issued by the defendant cannot be cut down by an amendment of the by-laws. Newhall v. American Legion of Honor, 181 Mass. 111, 63 N. E. 1; Langan v. Same, 174 N. Y. 266, 66 N. E. 932; American Legion of Honor v. Getz, 112 Fed. 119, 50 C. C. A. 153. But in many of these, as in the case from this court last cited, a distinction is made between the express stipulation of the corporation to pay a certain sum and other provisions relating to the methods of the corporation, and the duties of the certificate holders, which properly may be a subject for regulation by by-laws, even though they affect the rights of the parties under their contract. The assessments to be paid for death benefits in this
case are provided for by the by-laws, while the promise in writing to pay a certain sum to a particular person is, as to that person, a matter outside of those corporate rules which may be expected to be changed by an amendment of the by-laws. This promise on one side is set over against the promise of the member on the other. The promise of the member is to do what may be called for by the by-laws then existing or that may afterwards be adopted. The promise of the corporation is stated expressly, without mention of the by-laws. The member occupies
. a dual position, as an insurer and the insured. As one of the association agreeing to provide for the payments that may become due to members, he agrees to be subject to the by-laws. As the insured person to whom a particular sum of money is promised, he has a right to stand on the terms of the promise.
That the duties of members prescribed by the by-laws remain subject to modification when a power of amendment is reserved has often been decided. Loetiler v. Modern Woodmen of America, 100 Wis. 79, 75 N. W. 1012; Langnecker v. Grand Lodge A. O. U. W., 111 Wis. 279, 87 N. W. 293, 55 L. R. A. 185, 87 Am. St. Rep. 860; Lawson v. Hewell, 118 Cal, 613, 50 Pac. 763, 49 L. R. A. 400; Gilmore v. Knights of Columbus, 77 Conn. 58, 58 Atl. 223; Ellerbe v. Faust, 119 Mo. 653, 25 S. W. 390, 25 L. R. A. 149.
Most of the cases relied on by the plaintiffs, when rightly analyzed, turn on the distinction between an attempted amendment of the by-laws directly affecting the proreise to the certificate holder as an insured person, and an amendment affecting his duties as a member of the corporation bound to perform his part in providing means or otherwise as one of the association of insurers. Hale v. Equitable Aid Union, 168 Pa. 377, 31 Atl. 1066; Fargo v. Supreme Tent, 96 App. Div. 491, 89 N. Y. Supp. 65; Weber v. Supreme Tent, 172 N. Y. 490, 65 N. E. 258, 92 Am. St. Rep. 753; Sautter v. Supreme Conclave (N. J. Sup.) 62 Atl. 529; Tebo v. Royal Arcanum, 89 Minn. 3, 93 N. W. 513; Deuble v. Grand Lodge, 66 App. Div. 323, 72 N. Y. Supp. 755; Deuble v. Grand Lodge, 172 N. Y. 665, 65 N. E. 1116; Beech v. Supreme Tent, 177 N. Y. 100, 69 N. E. 281; Startling v. Royal Templars, 108 Mich. 440, 66 N. W. 340, 62 Am. St. Rep. 709; Peterson v. Gibson, 191 Ill. 365, 61 N. E. 127, 54 L. R. A. 836, 85 Am. St. Rep. 263; Wist v. Grand Lodge, 22 Or. 271, 29 Pac. 610, 29 Am. St. Rep. 603; Roberts v. Cohen, 60 App. Div. 259, 70 N. Y. Supp. 57; Roberts v. Grand Lodge, 173 N. Y. 580, 65 N. E. 1122; United Workmen v. Stumpf, 24 Tex. Civ. App. 309, 58 S. W. 840; Hadley v. Woodman, 1 Tenn. Ch. App. 413; Spencer v. Grand Lodge, 53 App. Div. 627, 65 N. Y. Supp. 1146. Other cases cited by the plaintiffs are clearly adverse to the view which we take. See Ebert v. Mutual Ass'n. 81 Minn, 116, 83 N. W. 506, 834, 84 N. W. 457;