it was proper for the plaintiff to show the powers it had conferred upon the agent, elther actual or ostensible, in order that it might properly be determined whether the acts of the agent were binding upon the plaintiff. Schull v. New Birdsall Co. (S. D.) 86 N. W. 654. It was stipulated at the close of all the evidence that the value of the use of the old rig was $34 per day for the 14 days mentioned in the answer, but without waiving any right on the part of the plaintiff to object to the competency or relevancy of the evidence and without waiving any right on the part of the defendants to have any and all other issues submitted to the jury. Thereupon the plaintiff moved the court in effect to direct a veruict for the plaintiff that it had a special interest in the property to the extent of $1,250, and for judgment in its favor. Before any ruling was made upon this motion the defendants moved the court that the other issues in this action, viz., the question of the right to the possession, the question of the value of the use of the new machinery for the three days it was held in the possession of the sheriff, and all other questions of fact, be submitted to the jury. Upon these mo tions the court made the following decision: "That in view of the rulings and holding of the court upon the question of delivery of this threshing machine, sold by virtue of the contract in evidence, and in view of the stipulation entered into by counsel as to the value of the use of the old rig, there remains no question of fact in dispute which could be submitted to this jury, and it is ordered that the jury be discharged from further consideration of this case." To which ruling the defendants duly excepted. The jury were thereupon discharged and the court subsequently found the facts and entered judgment for the plaintiff as requested by it. It is contended on the part of the defendants that the court erred in assuming to decide the question of the possession of the machinery, as the evidence as to delivery was conflicting and should have been left to the jury; that the court erred in not submitting to the jury the other issues in the case, and in discharging the jury against the objections of the defendants, thereby denying to them the benefit of a jury trial guarantied to them by the constitution.

The first question presented by these motions and the court's ruling is, was there any issue to be submitted to the jury? In other words, was the court right in holding that there was no delivery of the machinery upon the undisputed facts? Second. Was the ruling of the court that there were no issues to be passed upon by the jury correct? It was undisputed that on the arrival of the machinery at Clear Lake the defendants paid the freight, unloaded it from the cars at their own expense, fired up the engine, and attached thereto the thresher, and ran the same to a blacksmith shop in the town, and caused some changes to be made therein at their own

expense; and that upon failure to deliver the notes and mortgage for the unpaid balance upon demand they refused to return the machinery to the plaintiff. By the terms of the order of purchase the defendants, as before stated, agreed to pay the freight, and had a right to inspect the machinery before accepting the same, which necessarily included the right to put it in running order; but they had no right to absolute possession until they executed and delivered the notes and mortgage for the unpaid balance due upon the same as stipulated. The defendants had not only stipulated to pay for the machine on delivery, but the Civil Code of this state provides that: "A buyer must pay the price of the thing sold on its delivery; and must take it away within a reasonable time after the seller offers to deliver it. On an agreement for sale, with warranty, the buyer has a right to inspect the thing sold, at a reasonable time, before accepting it, and may rescind the contract if the seller refuses to permit him to do so." Sections 3643, 3644, Comp. Laws. The act of the agent, therefore, in permitting the defendants to test the running of the machinery, was not a delivery of the same; and in fact he is not shown to have had any authority to deliver the same without the execution and delivery of the notes and mortgage stipulated for in the order for the machinery, and any delivery by the agent without such condition being complied with would not have been binding upon the plaintiff. The court therefore ruled correctly in holding that there was no delivery of the machinery under the undisputed facts proven. If there was no delivery, the defendants were wrongfully withholding from the plaintiff this property, and the claim of the defendants that they were entitled to have the question of the value of the use of the new machinery for the three days it was held by the sheriff submitted to the jury is without merit, and need not be further considered. The value of the use of the old rig for the 14 days having been stipulated, there was no issue to be submitted to the jury, as the question, were the defendants entitled to have the amount of damage sustained by them for the use of the old rig allowed them in this action? was one of law under the undisputed facts. The proper rule is thus stated in a recent case by the supreme court of Nebraska: "Where the evidence in the case is neither conflicting nor contradictory, and is not of such a nature as to warrant different conclusions by reasona ble men, and but one rational conclusion can be drawn therefrom, it becomes proper for a trial judge to treat the case as having been resolved into questions of law, and to suitably instruct the jury accordingly." Rogers v. Marriott, 59 Neb. 759, 82 N. W. 21. The court therefore committed no error in dischar ging the jury and holding the questions of law under advisement, instead of directing a verdict.

This brings us to the last question present

ed, viz., did the court err in holding that the defendants were not entitled to counterclaim the damages sustained by them by reason of their delivering the old rig 14 days before the new machinery arrived? We shall assume for the purpose of this decision that the agent induced the defendants to deliver to him the old rig by falsely representing to them that the new machinery was shipped and on the road, and would arrive within a day or two, as testified by the defendants. It was not shown that the agent had the authority to make such a representation, either actually or ostensibly, or that the plaintiff, with knowledge that said old rig had been delivered, ratified the action of the agent. Without such evidence the defendants had no claim for damages that they could enforce against the plaintiff. This question was so fully discussed in Schull v. New Birdsall Co., supra, that a further consideration of it seems unnecessary. Nichols v. Bruns, 5 Dak. 28, 37 N. W. 752. The local agent at Clear Lake was a special agent to solicit orders for threshing machinery for the plaintiff, and it was shown by the plaintiff by undisputed evidence that he not only had no authority to make representations upon this subject, but that he was prohibited from doing so. The language of his instruction was: "Do not agree to deliver a machine on any particular day. We do not guaranty delivery in any case." The local agent being a special agent, it was the duty of the defendants, before delivering the old rig to him before the new machinery had arrived, to ascertain the extent of his authority. In our judgment, the court ruled correctly in holding that the damages claimed could not be deducted from the plaintiff's lien which they sought to enforce under the provisions of section 3620, Comp. Laws, which reads as follows: "If a buyer of personal property does not pay for it according to contract, and it remains in the possession of the seller, after payment is due, the seller may rescind the sale, or may enforce his lien for the price in the manner prescribed by the title on liens." See, also, section 4439, Id.

Finding no error in the record, the judgment and order of the circuit court denying a new trial are affirmed.

TOWN OF SHELBY v. MILLER. (Supreme Court of Wisconsin. June 19, 1902.) MUNICIPAL CORPORATIONS-CONTRACTS-DELEGATION OF DISCRETIONARY POWERS. Municipal officers, after having granted defendant's application to lay out a highway to lands owned by him, were temporarily enjoined from doing so, and concluded not to contest the injunction, whereon defendant agreed that, if the officers would permit him to make the contest in their names, he would save the town harmless from any costs that might be adjudged against it. Held that, on defendant losing the contest, and the city being compelled to pay the costs, it could not recover therefor

against him, as the agreement by the officials was illegal, as a delegation of discretionary

power.

Appeal from circuit court, La Crosse county; J. J. Fruit, Judge.

Action by the town of Shelby against Louis A. Miller. Judgment for plaintiff, and defendant appeals. Reversed.

Action on contract. The allegations of the complaint are to the following effect: September 13, 1899, defendant duly applied to the supervisors of the plaintiff town, under section 1275, Rev. St. 1898, to lay out a public highway to lands owned by him. Such proceedings were duly taken pursuant thereto that the application was granted October 23, 1899. Subsequently William Baier commenced an action in the circuit court for La Crosse county, against said supervisors as such, to enjoin the opening of the road, and temporary restraint in that regard was granted till the final termination of the litigation. Upon due consideration the supervisors decided not to defend the action. Defendant then requested them to permit him to defend the same in their place, promising to save the town harmless from all costs and expenses which might be directly or indirectly incurred by the town by reason of the litigation. The request was granted upon the terms stated. The result was that judgment was rendered in favor of Baier and against the supervisors for $125.70 in the circuit court, and $152.17 in the supreme court. Plaintiff paid both such judgments. Subsequently, at a regular meeting of the electors of the town, the ac tion of the supervisors was ratified and they were authorized to commence an action against defendant for reimbursement of the outlay aforesaid. After such outlay a demand was duly made upon defendant to comply with his agreement by making the town good for the same, which he refused to do.

Judgment was demanded for the amount of the outlay with interest and costs. The defendant demurred to the complaint for insufficiency. The demurrer was overruled and defendant appealed.

Higbee & Bunge, for appellant. McConnell & Schweizer, for respondent.

MARSHALL, J. (after stating the facts). As indicated in the statement, the supervisors, by the contract sought to be enforced in this action, abdicated their official positions as guardians of the public welfare in respect to the suit commenced by Baier. They officially considered the question of whether they ought, under the circumstances, to jeopardize the interests of the town by defending the suit, and determined it in the negative; then, in effect, for the consideration in controversy they allowed appellant to prolong the litigation in their official names. If this case could be determined on its mere moral aspects, the conduct of appellant, in obtaining full benefit of his agreement and then repudiating its respon

sibilities because not enforceable by legal remedies, would merit and receive condemnation by holding him liable upon the facts stated in the complaint upon the doctrine of estoppel in pais. But that wise public policy which abhors bartering away official discretion seems to shut the judicial door to respondent's plea for redress.

It has been decided by this and other courts that private contracts with officials, by which they surrender the performance of official duty to others, or allow the judgment of others to be substituted for their own in the performance of such duty, are void on grounds of public policy; that courts cannot be resorted to for the purpose of enforcing them. State v. Town Board of Geneva, 107 Wis. 1, 82 N. W. 550, relied on by respondent, as we understand the opinion, very clearly condemns the agreement sued on. True, as there decided, town officers may accept private aid for the town in the making of a public improvement without vitiating their proceedings in determining whether the public interests require the improvement or not, if such aid is not the producing cause of their decision. This language was used in the opinion:

"Of course, such contributions or offer of pecuniary aid must not be of such a character, nor made under such circumstances, as would be likely to swerve the commissioners or town board from the performance of their duty to the public. Here, as indicated, it is expressly found that the decision was not procured nor induced by the undertaking, nor by any promise of pecuniary or other aid."

In the case before us it is alleged in unmistakable language that the action of the supervisors, in permitting the litigation with Baier to proceed, was based solely on appellant's agreement that he would defend the suit in their official names, but treat the matter involved as really his private affair and reimburse the town for all costs and expenses it might be subjected to because of the continuance of the litigation. Now it is plain that it was the duty of the supervisors to stand for the town in fact as well as in form; that, regardless of whether the arrangement with appellant was free from moral turpitude or not, it required him to carry a burden in his private capacity as a condition of their permitting the suit to be defended, when they should have defended it unconditionally if, in their judgment, the public interests called for a defense in the matter, and, if it did not, should have stood by their resolution not to put in any defense. They were guilty either of extorting from Miller the agreement set forth in the complaint as a condition of the performance of their official duty, or of permitting a mere private person, in consideration thereof, to use their official positions to vex Baier with a long and expensive judicial controversy in which they did not believe there was sufficient merit on the side of the town to warrant them in carrying it on. In either view of the matter, sound public pol

icy condemns the agreement. The rule in that regard is aimed at preventing that species of oppression which compels individual members of a community to obtain performance of official duty by purchase, as well as at preventing surrender of that official discretion which the law contemplates shall be bestowed upon every situation in which an officer is required to act. Winter v. Kinney, 1 N. Y. 365; Webb v. Albertson, 4 Barb. 51.

Much time might be spent reviewing the authorities supporting the principle of this decision without pointing to any case similar to the one before us, in all respects, as to the facts. We do not deem it necessary or advisable to discuss the subject at length, inasmuch as the principle involved is elementary and the precise standard of public policy to be maintained rests largely in judicial discretion where the legislature has not spoken on the subject. It is considered that capacity of a person to make an enforceable private contract with an officer to secure performance or omission to perform an official duty, whether benefit under such contract inures to such person or to the public and whether his motive in the matter be good or bad, is inconsistent with a safe standard of official integrity; that such a contract is constructively corrupt; that it is void as contravening sound public policy, and not enforceable by judicial remedies. It follows that the demurrer to the complaint should have been sustained, and that the order appealed from must be reversed and the cause remanded for further proceedings according to law.

court.

2. The judgment of the circuit court on the question of the propriety of its taking jurisdiction of a controversy within the competency of the county court to determine will not be disturbed unless manifestly wrong, the rule being that the former must necessarily be permitted to exercise a broad discretion in deciding the question of its jurisdiction upon the facts of each particular case.

3. Mere economy of time alone is not sufficient to warrant the circuit court in taking jurisdiction of a controversy which is within the jurisdiction of the county court; but such element, with circumstances rendering speedy settlement of the controversy of more than ordinary importance, is sufficient.

4. The primary purpose of the statute limiting the right to suspend the absolute power For opinion on motion for retaxation of costs, see 91 N. W. 650.

to alienate realty is not to prevent perpetuities, but to prevent unduly removing property from the field of business transactious. The prevention of perpetuities, so far as accomplished by such statute, is an incidental effect.

5. If realty be conveyed, by will or otherwise, to trustees upon an express trust, with absolute power to couvert the same into personalty and hold the equivalent in that form for a period beyond the term for which the absolute power to alienate the realty could be suspended, the trust is valid if, upon such conversion being made, such equivalent will not be fettered by an invalid trust.

6. In the circumstances stated in the last paragraph, the fund derived from the realty is not fettered by an invalid trust, in any event, merely by reason of the statutory limitation upon the right to suspend the absolute power to alienate realty. Power being vested in the trustees to convey full title to the realty, satisfies the statute. Upon a conveyance being made, the question of whether the proceeds in the form of personal property are fettered by an invalid trust must be solved by some law governing perpetuities respecting personal property.

7. The power of alienation of realty is not suspended where there are living parties, however numerous, who have unitedly the entire ownership and may, presently, lawfully join in an absolute conveyance of the same.

8. If a testator, in a valid testamentary way, unmistakenly directs, either expressly or by necessary implication, that his realty shall be treated in the administration of his estate as personalty, or his personalty as realty, equity will deem that purpose impressed upon his estate immediately upon the taking effect of his will.

9. When the execution of the plan of a testator would be impossible or be attended with such difficulties that it would be unreasonable to suppose that such execution was contemplated by him without converting the realty into personalty or personalty into realty, a direction for such conversion will be deemed imperatively expressed in the will by necessary implication, to the same effect as if expressed therein in words.

10. Whether a will contains, by implication, a direction to convert property from one form into another is to be determined from the will itself, by ordinary rules for the judicial construction of such instruments.

11. A will which requires a large property. consisting partly of real estate and partly of personal property, to be divided into several equal parts or shares, and each part or share to be thereafter, for a long period of years, administered in trust as a separate property, subject to be divided and subdivided into many equal shares or parts before the final closing up of the trust,-the nature of the instrument, independently of the circumstances mentioned, being consistent with or indicating a purpose to have the entire estate treated as personal property,-held to impliedly direct the estate to be so treated and to work an equitable conversion of the realty into personalty.

12. The common-law rule as to perpetuities respecting personal property is not in force in this state.

13. The 21-year term of the common-law rule respecting perpetuities is an absolute or gross term, not one referable to or subject to be limited by existing infancy.

14. A provision of an express trust of personal property, directing the subject of the trust to be delivered to the beneficiaries at the expiration of lives in being at the creation of the estate and the added common-law period thereafter, does not offend against the common rule of perpetuities if the vesting of the right to the property is not postponed by the terms of the trust to a time beyond such added period. 15. The common rule of perpetuities is satis

fied by the vesting of the right to the estate within the limitations thereof, though the beneficiaries may not then be known.

16. Time required after the vesting of the right, for the ascertainment of the person or persons rightfully entitled to the property, does not militate against the validity of the trust in any event, as the rule against perpetuities does not deal with vested estates or interests. 17. A trust does not offend against section 2071, Rev. St. 1898, because of any obscurity which may readily be made certain by some definite test provided therein, when the time shall have arrived for executing the trust in regard to the matters involved.

(Syllabus by the Judge.)

Appeal from circuit court, Milwaukee county; Eugene S. Elliott, Judge.

Action by Sherburn M. Becker and another against Marion Merrill Chester and others. From the judgment plaintiffs and Marion M. Chester appeal. Affirmed.

Action to quiet a controversy as to the legal effect of the will of Sherburn S. Merrill, claimed by plaintiffs to be a suit in effect for the construction of such will. The complaint, by appropriate allegations, shows that all persons interested in the validity of that part of the will called in question are parties plaintiff or defendant. The following matters are also, in effect, alleged therein: The will was duly established April 21, 1885. Letters testamentary were then issued to the testator's widow, and D. C. Green, B. G. Lennox and David S. Wegg, all of whom are now in office except Mr. Lennox. The present executors have in their charge under the sixth clause of the will a fund, called the widow's fund, of $200,000, a special fund of $27,500 set aside by them to provide for certain legacies contained in the first five clauses of the will, certain real estate of which the testator died seised, also personal property of the value of $621,681.37 which was derived from real estate of which he died seised, except $78,975.95 which was derived from personal property of which he died possessed. All the persons named in the sixth clause of the will survived the testator and are now living except his daughter Sarah, who died testate in 1900, leaving as her only surviving issue Sherburn M. Becker. He and George C. Markham, the administrator of her estate with the will annexed, are the plaintiffs in this action. The executors, the testator's daughter Marion and her children, Sherburn M. Smith, William M. Chester and Norman M. Chester, the widow, Mary E. Merrill, in her own right, and the testator's sons Fred F. and Richard, constitute the defendants. The first five clauses of the will contain: (1) The usual provision for the payment of the testator's debts and funeral expenses; (2) a gift of his homestead and lands used in connection therewith to the widow for life; (3) a gift to her absolutely of certain personal property in use and for use in connection with the homestead; (4) a gift to her of $100,000; (5) a gift to her of the income upon $200,000, said

sum to be set aside and invested by the executors at interest and the income thereof to be paid to her as directed in the will; (6) a direction to the executors to pay to the widow, from time to time, such additional sums of money as they might deem necessary to enable her to live as she had been accustomed to, such provisions for her being expressly made to take the place of dower; (7) a gift of certain real estate to his daughter Marion as the equivalent of a gift made during his lifetime to his daughter Sarah; (8) a direction to the executors to improve such real estate to the extent of $20,000; (9) a direction that the benefits provided for the widow in case she should not survive to take the same, and those provided for Marion in a like event and in case she did not survive the testator or leave issue him surviving, to go to the residue of the estate for distribution under the sixth clause of the will, worded as follows:

"All the rest, residue and remainder, of the property, real, personal and mixed of whatsoever kind and wheresoever situate of which I may die seised or possessed, or in any manner entitled unto, including the reversion in my aforesaid homestead and fifteen acres, and the reversion in the aforesaid two hundred thousand dollars, I give, devise and bequeath, in trust, unto my executors, with full power at all times, to lease, or sell and convey the same, or any part thereof, and to convert real estate into personal property or personal property into real estate, as to them may seem best for the interest of all persons concerned, and to make investments in interest-bearing securities, and it is my will that my said executors shall have full power to so manage the property while in their charge, as to make it yield a safe and reasonable income. My estate herein given to my said executors shall be finally disposed of by them as herein directed.

"First.-My said executors shall, as soon as convenient after my decease set apart what in their judgment is equivalent to one-fourth of the residuary estate, and they shall pay over from year to year, at the end of each year, the interest or income derived from said one-fourth during the preceding year, to my daughter Sarah Merrill Becker, now the wife of Washington Becker, of said city of Milwaukee, so long as she shall live.

"If my said daughter, Sarah Merrill Becker, shall die, leaving no issue her surviving, and at that time my daughter Marion Merrill, is living or has issue living, and my son, Fred F. Merrill, is living or has issue living, and my son Richard Merrill is living, or has issue living, then my said executors shall divide the aforesaid one-fourth into three equal parts, which shall be added share and share alike, to the shares herein directed to be set apart for the benefit of my said three children, Marion Merrill, Fred F. Merrill, and Richard Merrill, and such parts,

when so added, shall be disposed of in the manner herein directed for the disposition of the shares to which they are added.

"If my said daughter, Sarah Merrill Becker, shall die leaving no issue her surviving, and at that time either one of my said three children, Marion Merrill, Fred F. Merrill and Richard Merrill, be dead without issue then living, then and in that event, my said executors shall divide the aforesaid one-fourth into two equal parts, which shall be added, share and share alike to the shares herein directed to be set apart for the benefit of my two children, who are then living or have issue then living, and such parts, when so added, shall be disposed of in the manner herein directed for the disposition of the shares to which they are added.

"If my said daughter, Sarah Merrill Becker, shall die leaving no issue her surviving, and at that time, any two of my said three children, Marion Merrill, Fred F. Merrill and Richard Merrill, be dead, without issue then living, then and in that event, the whole of the aforesaid one-fourth shall be added to the share set part for the benefit of that one of my said children, who shall then be living or have issue then living, and when so added shall be disposed of in the manner herein directed for the disposition of the share to which it is so added.

"If my said daughter, Sarah Merrill Becker, shall die leaving issue her surviving, then upon her death my said executors shall dispose of one-half of the aforesaid one-fourth in precisely the same manner as is hereinbefore provided for the disposition of the whole of said one-fourth, in the event of the death of my said daughter, Sarah Merrill Becker, without leaving issue her surviving, and if my said daughter, Sarah Merrill Becker, shall die leaving issue her surviving, then upon her death, my said executors shall from year to year, at the end of each year, for the full period of twenty-one years after her death, pay over to such issue, the interest or income derived from the other one-half of the aforesaid one-fourth during the preceding year, and if such issue shall consist of more than one person, then such payments shall be made, in such proportions, as such issue at the time of each payment, would be entitled to by descent under the laws of Wisconsin to the real estate of said Sarah Merrill Becker, and at the expiration of said period of twenty-one years after the death of my said daughter, Sarah Merrill Becker, my executors shall pay over or convey to her then living issue, the said one-half of the aforesaid one-fourth, and if such living issue shall then consist of more than one person, then the said one-half of the aforesaid onefourth shall be paid over or conveyed to such issue in such proportions, as such issue would be then entitled by descent under the laws of Wisconsin to the real estate of said Sarah Merrill Becker.

"If my said daughter, Sarah Merrill Beck