Brennan v. Healy, 157 Wis. 37. formed plaintiff that the services were in part for the benefit of defendant." Perhaps it would have been better not to have used the words "contract of service" and "employment" so frequently as they were used in the charge, but in view of the very full and comprehensive instructions given later in the charge on the subject of a recovery in the absence of any express employment or contract, we are convinced that there could be no misleading of the jury thereby. There is doubtless one error in the charge, namely, in the sentence which instructs the jury that in order to find that the plaintiff was employed to render service in the capacity of a mining expert the evidence should be clear and convincing. This cannot be approved. In a civil case the jury are required to be convinced or satisfied of the existence of a fact by the preponderance of the evidence (Anderson v. Chicago B. Co. 127 Wis. 273, 106 N. W. 1077), except that in case of certain issues, including fraud, it is held that the affirmative can only be found upon evidence that is clear and satisfactory. Bowe v. Gage, 127 Wis. 245, 106 N. W. 1074. The issue in the present case is not one of the issues included in the latter class, and hence it must be held erroneous to charge the jury that the evidence must be clear and convincing. We are satisfied, however, that this error was entirely unsubstantial. The evidence that Keating ever employed the plaintiff to render legal services for Healy is very slight, and the evidence that such employment included employment as a mining expert is practically negligible. It seems extremely doubtful whether any recovery could be sustained on any theory except the theory that the plaintiff rendered valuable services to the defendant (through his agent, Keating) which were accepted by Healy knowing that they were being rendered and that they were not intended to be gratuitous. This phase of the case was very fully covered in the charge of the Brennan v. Healy, 157 Wis. 37. court by instructions which were favorable to the plaintiff and in fact included substantially every proposition which the plaintiff requested the court to give to the jury on the subject. It would be very hard to construct a more complete or favorable charge on the subject of liability resulting merely from the knowing acceptance of valuable services than the charge which the court gave. In our judgment the jury must necessarily have considered this as the only substantial issue in the case. The trial was long and characterized by eminently fair rulings; the plaintiff was permitted to place before the jury practically every material fact which he considered as bearing on his claim; the charge on the controlling issue was without error so far as plaintiff is concerned. There seems to us no probability and hardly a possibility of a different result upon another trial, and under these circumstances we entertain no doubt of our duty to affirm the judg ment. One sentence in the charge is complained of as a misstatement of fact, namely, the statement that the plaintiff did not claim that "such employment resulted from any conversation or dealing had with the defendant personally." With reference to this statement, it appears that at the close of the charge the defendant's attorney arose and stated to the court: "There is one part of your honor's charge which if I understand it correctly is a little too favorable to the defendant in the case. Your honor stated that the plaintiff doesn't claim that any services were rendered to the defendant by virtue of express employment. The plaintiff did testify, however, that on the occasion immediately preceding going to Duluth to draw the leases he asked the defendant if he wished him to look after his papers, too, and that the defendant said he did. That was denied by the defendant and the witness Keating." To which the court replied: "I assumed that that was the situation, but I may be wrong. The jury has heard the statement of counsel; it only occurs Illinois Surety Co. v. Maguire, 157 Wis. 49. in the statement of claims made by the parties, and if that is the evidence they may so consider it." This seems to us to cover the only substantial inaccuracy there was in the charge of the court. Had there been any other instance which ought to have been noticed, it would seem that counsel for the plaintiff should have assisted counsel for the defendant in his effort to eliminate possible error from the charge. In any event, the present position of the plaintiff seems almost to justify the statement of the original charge. In the plaintiff's brief in this court it is said that "the plaintiff does not claim and the evidence does not show any request in fact for services or any contract in fact. It shows, and plaintiff's theory was, that he rendered services to defendant's agent with the knowledge of defendant, and also to defendant, which were accepted by each of them; and that Healy had secretly appointed Keating his agent, and therefore obtained services by fraud and is liable therefor." We find no substantial error in the record. By the Court.-Judgment affirmed. A motion for a rehearing was denied, with $25 costs, on May 1, 1914. ILLINOIS SURETY COMPANY, Appellant, vs. MAGUIRE, Re spondent. February 6-May 1, 1914. Evidence: Sufficiency: Contracts: Validity: Indemnity: Suretyship: Fraud. 1. Parties to a contract may effectively provide for the kind or quantum of evidence necessary, in the absence of fraud, to conclusively establish a fact. 2. Thus, in a contract to indemnify a guaranty company for all loss sustained by reason of a bond executed by said company guaranteeing fidelity of an employee, a provision that "the vouchers VOL. 157 4 Illinois Surety Co. v. Maguire, 157 Wis. 49. or other proper evidence showing payment by said guaranty company of any such loss, shall be conclusive evidence (except for fraud) . . . of the fact and amount" of the liability of the indemnitor to said company, was valid and binding. 3. Such contract did not make the indemnitor a surety upon the bond, and a waiver by the guaranty company of requirements in that bond as to notice and proof of loss by the employer did not, in the absence of fraud, release the indemnitor from liability. 4. A loss by the employer, covered by the bond, and payment by the guaranty company being clearly shown, a mere waiver of certain requirements of the bond and the absence of an indorsement by an indorsee of the employer on the check by which payment was made were not sufficient to establish fraud. APPEAL from a judgment of the circuit court for Waukesha county: MARTIN L. LUECK, Circuit Judge. Reversed. Action upon a contract of indemnity executed and delivered by the defendant to the plaintiff October 30, 1908. The contract reads as follows: "Know all men by these presents, that I, Emma L. Maguire, of Pewaukee, Wisconsin, in consideration of the issueof a bond of guarantee by the Illinois Surety Company of Chicago, Illinois, to . . . on behalf of Walter R. Maguire, not yet of age, hereby agree that I will protect and immediately indemnify the said Illinois Surety Company against any and all loss, damage, or expense it may sustain or become liable for in consequence of such bond or any renewal or extension thereof, hereby admitting that the vouchers or other proper evidence showing payment by said guaranty company of any such loss, damage, or expense, shall be conclusive evidence (except for fraud) against me and my estate, of the fact and amount of my liability hereunder to said guaranty company. It being understood that, when the above named party reaches mature age, this obligation becomes canceled. EMMA L. MAGUIRE." "(Signed) Defendant admits that she signed the contract in order that her son might secure employment from W. A. Alexander & Company. On November 6, 1908, the plaintiff executed and delivered to W. A. Alexander & Company its bond in Illinois Surety Co. v. Maguire, 157 Wis. 49. the sum of $500 indemnifying the firm against such pecuniary loss as it might sustain by any act of larceny or embezzlement on the part of Walter R. Maguire while engaged in performance of the duties of a cashier thereof. The bond contained, among other provisions, the following: "That the employer, on his becoming aware of any act which may be made the basis of any claim hereunder, shall immediately give the company notice thereof by telegraph at the company's expense, and in writing by a registered letter, addressed to the secretary of the company, Chicago, Illinois, and shall, within ninety days after his so becoming aware of such act as aforesaid, file with the company its itemized claim thereunder at his own cost and expense with full particulars thereof duly sworn to; . . . and this bond shall become void both as to any existing or future liabilities thereunder unless the aforesaid notice shall have been given as provided for, and unless claim is filed within the time and manner above specified . . . That no one of the above conditions or provisions contained in this bond shall be deemed to have been waived by, or on behalf of, the company, unless the waiver be in writing, over the signature of an officer of the company." On or about September 21, 1909, the above bond was duly renewed to cover a period ending October 23, 1910. August 29, 1910, Walter R. Maguire left the office and employ of W. A. Alexander & Company, without the knowledge of his employer, and did not return. On the same date his employer telephoned the plaintiff that Walter R. Maguire had disappeared and that he was short in his accounts in a sum exceeding the amount of his bond, and on August 31, 1910, W. A. Alexander & Company sent a letter, but not by registered mail, to the plaintiff informing it that W. R. Maguire had suddenly disappeared and that an investigation of his accounts indicated a shortage, the exact amount of which had not been ascertained, but that enough had been learned. to show that it exceeded the amount of plaintiff's bond by a considerable sum. Later the plaintiff took the matter up |